UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

Tareq Aqel Mohammed Aziz and
Ammar Aqel Mohammed Aziz, by their next friend,
Aqel Muhammad Aziz, and
John Does 1-60,
Petitioners,

Case No. 1:17-cv-116 Date: January 28, 2017

v.

DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WAYNE BIONDI, Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles,

Respondents.

TEMPORARY RESTRAINING ORDER

Pursuant to Federal Rule of Civil Procedure 65, the Court orders that: a) respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport; b) respondents are forbidden from removing petitioners—lawful permanent residents at Dulles International Airport—for a period of 7 days from the issuance of this Order.

Dates: January 28, 2017 1

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

Tareq Aqel Mohammed Aziz and
Ammar Aqel Mohammed Aziz, by their next friend,
Aqel Muhammad Aziz, and
John Does 1-60,

Case No. _____________________

Petitioners, v.

Date: January 28, 2017

DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WAYNE BIONDI, Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles,

Respondents.

PETITIONERS’ EMERGENCY APPLICATION FOR A TEMPORARY RESTRAINING ORDER

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INTRODUCTION Petitioners are 50 to 60 Lawful Permanent Residents (“LPRs”) currently detained at Dulles Airport. Respondents have detained these individuals or otherwise barred them from exiting the airport or continuing their transit into the United States. Respondents have denied these individuals access to lawyers. Upon information and belief, respondents imminently intend to remove these individuals from the United States. Pursuant to Fed. R. Civ. P. 65, petitioners respectfully request that this Court issue a temporary restraining order that (a) orders respondents to permit undersigned counsel or other lawyers access to petitioners, and (b) forbids respondents from removing petitioners from the United States for a period of 7 days.
BACKGROUND 1. Petitioners Tareq Aqel Mohammed Aziz (Tareq) and Ammar Aqel Mohammed Aziz (Ammar) are two brothers of Yemeni nationality, who were granted Lawful Permanent Resident (“LPR”) status by virtue of their status as immediate relatives of their father, a US citizen. 2. They landed at Washington-Dulles International Airport (“IAD”) on the morning of January 28, 2017, with plans to continue on to Michigan where their father was awaiting them. 3. After conducting standard procedures of administrative processing and security checks, the federal government has deemed both Aziz brothers to be admissible to the United States as immigrants. 4. Despite these findings and Petitioner’s valid entry documents, U.S. Customs and Border Protection (“CBP”) blocked them from exiting IAD and detained them therein. No
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magistrate has determined that there is sufficient justification for the continued detention of either of the Aziz brothers. Instead, CBP is holding them at IAD solely pursuant to an executive order issued on January 27, 2017.
5. Lawyers have been denied access to Tareq and Ammar Aziz. 6. Upon information and belief, respondents intend to imminently remove Tareq Aziz and Ammar Aziz from the United States absent injunctive relief from this Court. 7. Petitioners JOHN DOES 1-60 are approximately 50-60 lawful permanent residents of the United States, most of whom are returning from trips abroad, all of whom are nationals of one of the following seven countries: Lybia, Iraq, Iran, Yemen, Syria, Sudan, Somalia. All are in the very same situation as the Aziz brothers. All are presently being held against their will by CBP officers in the international arrivals area of Dulles Airport. All are being held in an area where other passengers disembarking from international flights can see and hear them; accordingly, there is no reason that their attorneys could not be permitted to meet with them. 8. Respondents are also precluding these petitioners from access to lawyers. 9. Upon information and belief, respondents intend to imminently remove these individuals from the United States. 10. On January 28, at approximately 8:30pm, petitioners emailed the Chief of the Civil Division for the U.S. Attorney’s Office, Eastern District of Virginia, to provide notice of this filing.
ARGUMENT 11. Petitioners will suffer irreparable harm if the requested temporary restraining order does not issue.
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12. First, absent access to legal counsel, petitioners cannot meaningfully understand they legal rights and obligations—and therefore they cannot make determinations about what legal proceedings to pursue.
13. Second, if removed from the United States, petitioners are uncertain when or whether they will be permitted to return to the United States. Similarly, if removed from the United States, petitioners may lose material legal rights. Respondents may later argue, for example, that there are legal distinctions to be drawn between individuals within the United States and those outside the United States.
14. Third, the countries to which respondents would remove petitioners are unknown. Moreover, because lawyers have been denied access, the particular circumstances of each individual petitioner is unknown. There therefore exists the risk that petitioners have credible fears regarding a removal from the United States, should any petitioner be sent to a country where he or she has previously been the subject to or threatened with persecution.
15. Fourth, because petitioners have lawful permanent residence status, they are entitled to admission into the United States. Absent this Court’s grant of temporary relief, the rights of these individuals to enter the United States will be irreparably denied.
16. Fifth, many petitioners have family members within the United States. The rights of these individuals to be unified with petitioners will be denied unless this Court grants the temporary relief requested.
17. For reasons explained more fully in the accompanying petition for habeas corpus, petitioners have a substantial likelihood of prevailing on the merits. All petitioners have lawful permanent residence status which entitles them to admission into the United States. No grounds of inadmissibility under the Immigration and Nationality Act apply to any petitioner. Nor is there
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any reason under Title 8 of U.S. Code or Title 8 of the Code of Federal Regulations to prohibit any petitioner from entering the United States as lawful permanent residents.
PRAYER FOR RELIEF Petitioners pray that this Court grant the following relief pursuant to Fed. R. Civ. P. 65: Issue a temporary restraining order that (a) compels respondents to permit lawyers to meet with the individuals currently detained at Dulles airport and (b) forbids respondents from removing petitioners from the United States for a period of 7 days.
Respectfully submitted, Simon Sandoval-Moshenberg (VA 77110) LEGAL AID JUSTICE CENTER 6066 Leesburg Pike #520 Falls Church, VA 22041 (703) 720-5605 / cell (434) 218-9673 simon@justice4all.org Andrew J. Pincus (pro hac vice motion forthcoming) Paul W. Hughes (pro hac vice motion forthcoming) MAYER BROWN LLP 1999 K St. NW Washington, DC 20001 (202) 263-3147 apincus@mayerbrown.com phughes@mayerbrown.com
5

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

Tareq Aqel Mohammed Aziz and
Ammar Aqel Mohammed Aziz, by their next friend,
Aqel Muhammad Aziz,
and
JOHN DOES 1-60,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WAYNE BIONDI, Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles,
Respondents.

Case No. _____________________ Date: January 28, 2017

PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION 1. Petitioners Tareq Aqel Mohammed Aziz and Ammar Aqel Mohammed Aziz are two brothers of Yemeni nationality, who were granted Lawful Permanent Resident (“LPR”) status by virtue of their status as immediate relatives of their father, a US citizen. Petitioners landed at Washington-Dulles International Airport (“IAD”) on the morning of January 28, 2017, with plans to continue on to Michigan where their father was awaiting them. After conducting standard procedures of administrative processing and security checks, the federal government has deemed both Petitioners to be admissible to the United States as immigrants. 2. Despite these findings and Petitioner’s valid entry documents, U.S. Customs and Border Protection (“CBP”) blocked Petitioners from exiting IAD and detained Petitioners therein. No magistrate has determined that there is sufficient justification for the continued detention of either Petitioner. Instead, CBP is holding Petitioners at IAD – along with approximately 50-60 other LPRs, who are named herein as John Does 1-60 – solely pursuant to an executive order issued on January 27, 2017. 3. Because the executive order is unlawful as applied to Petitioners, their continued detention based solely on the executive order violates their Fifth Amendment procedural and substantive due process rights, violates the First Amendment Establishment Clause, is ultra vires to the immigration statutes, and violates the Administrative Procedure Act and Religious Freedom Restoration Act. Therefore, Petitioners respectfully apply to this Court for a writ of habeas corpus to remedy their unlawful detention by Respondents, and for declaratory and injunctive relief to prevent such harms from recurring.
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4. Petitioners JOHN DOES 1-60 are approximately 50-60 lawful permanent residents of the United States, most of whom are returning from trips abroad, all of whom are nationals of one of the following seven countries: Lybia, Iraq, Iran, Yemen, Syria, Sudan, Somalia. All are presently being held against their will by CBP officers in the international arrivals area of Dulles Airport. All are being held in an area where other passengers disembarking from international flights can see and hear them; accordingly, there is no reason that their attorneys could not be permitted to meet with them.
5. There are currently at least twelve attorneys waiting outside the international arrivals area at Dulles Airport. They are not being allowed back to see John Does 1-60. Nor are they being allowed to see Petitioners, despite being retained by Petitioners’ father to represent the Petitioners. The undersigned attorney Simon Sandoval-Moshenberg called a CBP supervisor, and accurately represented himself to be Petitioners’ attorney, but was not given any information about Petitioners.
JURISDICTION AND VENUE 6. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1361, 2241, 2243, and the Habeas Corpus Suspension Clause of the U.S. Constitution. This court has further remedial authority pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. 7. Venue properly lies within the Eastern District of Virginia, Alexandria Division because a substantial part of the events or omissions giving rise to this action occurred in the District. 28 U.S.C. § 1391(b).
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8. No petition for habeas corpus has previously been filed in any court to review Petitioners’ cases.
PARTIES 9. Petitioner Tareq Aqel Mohammed Aziz is a 21-year-old citizen and national of Yemen. He was granted lawful permanent resident (LPR) status by the US Embassy in Djibouti, by virtue of being an immediate relative of a US citizen. 10. Petitioner Ammar Aqel Mohammed Aziz, is a 19-year-old citizen and national of Yemen. He was granted lawful permanent resident (LPR) status by the US Embassy in Djibouti, by virtue of being an immediate relative of a US citizen. 11. Aqel Muhammad Aziz is a US citizen. He is a resident of Flint, Michigan. 12. Petitioners JOHN DOES 1-60 are approximately 60 lawful permanent residents of the United States, all nationals of Syria, Lybia, Iran, Iraq, Somalia, Yemen or Sudan, who landed at Dulles Airport in the last 24 hours and are not being allowed to pass through international arrivals. They are being held at international arrivals against their will. 13. The U.S. Department of Homeland Security (“DHS”) is a cabinet department of the United States federal government with the primary mission of securing the United States. 14. U.S. Customs and Border Protection (“CBP”) is an agency within DHS with the primary mission of detecting and preventing the unlawful entry of persons and goods into the United States.
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15. Respondent John Kelly is the Secretary of DHS. Secretary Kelly has immediate custody of Petitioners and other members of the proposed class. He is sued in his official capacity.
16. Respondent Kevin K. McAleenan is the Acting Commissioner of CBP. Acting Commissioner McAleenan has immediate custody of Petitioners and other members of the proposed class. He is sued in his official capacity.
17. Respondent Wayne Biondi is the Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles, which has immediate custody of Petitioners. He is sued in his official capacity.
18. Respondent Donald Trump is the President of the United States. He is sued in his official capacity.
STATEMENT OF FACTS President Trump’s January 27, 2017 Executive Order 19. On January 20, 2017, Donald Trump was inaugurated as the forty-fifth President of the United States. 20. One week later, on January 27, at about 4:30pm, President Trump signed an executive order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States,” which is attached hereto as Exhibit A and is hereinafter referred to as the “EO.” 21. Citing the threat of terrorism committed by foreign nationals, the EO directs a variety of changes to the manner and extent to which non-citizens may seek and obtain admission to the United States, particularly (although not exclusively) as refugees. Among other
5

things, the EO imposes a 120-day moratorium on the refugee resettlement program as a whole; proclaims that “that the entry of nationals of Syria as refugees is detrimental to the interests of the United States,” and therefore “suspend[s]” indefinitely their entry to the country; similarly proclaims that “the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests” of the country.
22. Most relevant to the instant action is Section 3(c) of the EO, in which President Trump proclaims “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 that he is therefore “suspend[ing] entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order,” with narrow exceptions not relevant here.
23. There are seven countries that fit the criteria in 8 U.S.C. § 1187(a)(12): Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. According to the terms of the EO, therefore, the “entry into the United States” of non-citizens from those countries is “suspended” from 90 days from the date of the EO.
Petitioners’ claim to lawful permanent resident status 24. The Aziz brothers were granted immigrant visas by the U.S. Embassy in Djibouti, by virtue of their status as immediate relatives of their father, who is a US citizen. 25. They departed Addis Ababa, Ethiopia on a flight to Washington Dulles International Airport (“IAD”) about two hours before President Trump signed the EO. The flight
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made a stop in Dublin, Ireland, and then landed at IAD at around 8:00am on Saturday, January 28.
26. Upon information and belief, on arriving at IAD, the Aziz brothers were taken by unknown CBP agents at international arrivals, where they were held for the entire day and where they are still held.
27. In the afternoon of January 28, various attorneys retained by the Aziz brothers’ father attempted to ascertain the whereabouts of Petitioners and to advocate for their release from CBP custody, but none of the attorneys were given any information or allowed to speak to Petitioners.
28. Petitioners are not being permitted to meet with their attorneys who are present at IAD and have made multiple attempts to meet with them.
29. Upon knowledge and belief, Petitioners remain in the custody of CBP, either at IAD or elsewhere in this District.
30. No grounds of inadmissibility under the Immigration and Nationality Act applies to either Petitioner, nor is there any reason under Title 8 of U.S. Code or Title 8 of the Code of Federal Regulations not to allow Petitioners to enter the United States as lawful permanent residents.
31. Congress has provided that lawful permanent residents in Petitioners’ situation are entitled to enter the United States. Under 8 U.S.C. § 1101(a)(13)(C), a lawful permanent resident is regarded as seeking an admission into the United States for purposes of the immigration laws” only if he or she “has abandoned or relinquished that status,” id. § 1101(a)(13)(C)(i), has been absent from the United States for more than 180 days continuously,
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is in removal proceedings, has committed one of a class of enumerated offenses, or has attempted to enter without inspection.
32. None of the foregoing circumstances applies to Petitioners and therefore they are not deemed to be seeking admission and have a right to enter. In re Collado–Munoz, 21 I. & N. Dec. 1061, 1065-1066 (1998) (en banc) (requiring immigration judge to look to 8 U.S.C. § 1101(a)(13)(C) in determining whether lawful permanent resident was applicant for admission); Vartelas v. Holder, 566 U.S. 257, 132 S. Ct. 1479, 1484, 182 L. Ed. 2d 473 (2012) (citing In re Collado-Munoz and recognizing that the definition supersedes previous statute’s definition of entry).
33. Respondents are also detaining Petitioners in violation of the Due Process Clause. In Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963), the Supreme Court held that “an innocent, casual, and brief excursion by a resident alien outside this country's borders may not have been intended as a departure disruptive of his resident alien status and therefore may not subject him to the consequences of an entry into the country on his return.” (internal quotation marks and citations omitted); see also Kwong Hai Chew v. Colding, 344 U.S. 590, 601-02 (1953) (assimilating status, for constitutional purposes, of lawful permanent resident who had been abroad for five months to that of one continuously present). The Supreme Court reaffirmed this constitutional principle in Landon v. Plasencia, 459 U.S. 21, 31 (1982) (describing Chew as standing for the proposition that “a resident alien returning from a brief trip has a right to due process just as would a continuously present resident alien”).
34. As lawful permanent residents of the United States, Petitioners are attempting to return home.
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35. John Does 1-60 are, on information and belief, approximately 50-60 lawful permanent residents of the United States situated similarly to the Aziz brothers. None is being allowed access to counsel, notwithstanding the fact that there are over a dozen barred attorneys on the scene and willing to represent them pro bono. All are being denied entry into the United States and all are being told that they will be put on an airplane imminently.
CAUSES OF ACTION COUNT ONE
FIFTH AMENDMENT – PROCEDURAL DUE PROCESS DENIAL OF RIGHT TO ENTER UNITED STATES
36. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
37. Procedural due process requires that the government be constrained before it acts in a way that deprives individuals of liberty interests protected under the Due Process Clause of the Fifth Amendment. Additionally, due process requires that arriving immigrants be afforded those statutory rights granted by Congress and the principle that “[m]inimum due process rights attach to statutory rights.” Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (alteration in original) (quoting Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996)).
38. The United States government is obligated by United States law to allow LPRs admission into the United States, unless those LPRs are for some reason inadmissible.
39. Petitioners and John Does 1-60 were unlawfully denied the right to enter the United States as LPRs, without due process, in violation of the due process rights guaranteed by the Fifth and Fourteenth Amendments.
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40. In addition, they are being denied their right to counsel, by not being allowed to meet with attorneys who are present on the scene and willing to represent them pro bono.
COUNT TWO FIRST AMENDMENT – ESTABLISHMENT CLAUSE
41. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
42. The EO exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity. The EO therefore violates the Establishment Clause of the First Amendment by not pursuing a course of neutrality with regard to different religious faiths.
COUNT THREE THE IMMIGRATION AND NATIONALITY ACT
43. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
44. The Immigration and Nationality Act and implementing regulations entitle Petitioners to enter the United States as LPRs. Respondents’ actions in seeking to return Petitioners to Yemen, taken pursuant to the EO, deprive Petitioners of their statutory and regulatory rights.
COUNT FOUR FIFTH AMENDMENT – EQUAL PROTECTION
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45. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
46. The EO discriminates against Petitioners on the basis of their country of origin and religion, without sufficient justification, and therefore violates the equal protection component of the Due Process Clause of the Fifth Amendment.
47. Additionally, the EO was substantially motivated by animus toward—and has a disparate effect on—Muslims, which also violates the equal protection component of the Due Process Clause of the Fifth Amendment. Jana-Rock Const., Inc. v. N.Y. State Dep’t of Econ. Dev., 438 F.3d 195, 204 (2d Cir. 2006); Hunter v. Underwood, 471 U.S. 222 (1985).
48. Respondents have demonstrated an intent to discriminate against Plaintiffs on the basis of religion through repeated public statements that make clear the EO was designed to prohibit the entry of Muslims to the United States. See Michael D. Shear & Helene Cooper, Trump Bars Refugees and Citizens of 7 Muslim Countries, N.Y. Times (Jan. 27, 2017), (“[President Trump] ordered that Christians and others from minority religions be granted priority over Muslims.”); Carol Morello, Trump Signs Order Temporarily Halting Admission of Refugees, Promises Priority for Christians, Wash. Post (Jan. 27, 2017).
49. Applying a general law in a fashion that discriminate on the basis of religion in this way violates Petitioner’s rights to equal protection the Fifth Amendment Due Process Clause. Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). Petitioner satisfies the Supreme Court’s test to determine whether a facially neutral law – in the case, the EO and federal immigration law – has been applied in a discriminatory fashion. The Supreme Court requires an individual bringing suit to challenge the
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application of a law bear the burden of demonstrating a “prima facie case of discriminatory purpose.”Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-7 (1977). This test examines the impact of the official action, whether there has been a clear pattern unexplainable on other grounds besides discrimination, the historical background of the decision, the specific sequence of events leading up to the challenged decision, and departures from the normal procedural sequence. Id.
50. Here, President Donald Trump and senior staff have made clear that EO will be applied to primarily exclude individuals on the basis of their national origin and being Muslim. See, e.g., sources cited, supra ¶ 48, See, e.g., Donald J. Trump, Donald J. Trump Statement On Preventing Muslim Immigration, (Dec. 7, 2015), https://www.donaldjtrump.com/pressreleases/donald-j.-trump-statement-on-preventing-muslim-immigration (“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.”); Abby Phillip and Abigail Hauslohner, Trump on the Future of Proposed Muslim Ban, Registry: ‘You know my plans’, Wash. Post (Dec. 22, 2016). Further, the President has promised that preferential treatment will be given to Christians, unequivocally demonstrating the special preferences and discriminatory impact that the EO has upon Petitioners. See sources cited, supra ¶ 48.
51. Thus, Respondents have applied the EO with forbidden animus and discriminatory intent in violation of the equal protection of the Fifth Amendment and violated Petitioners’ equal protection rights.
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COUNT FIVE ADMINISTRATIVE PROCEDURE ACT 52. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 53. Respondents detained and mistreated Petitioners solely pursuant to an executive order issued on January 27, 2017, which expressly discriminates against Petitioners on the basis of their country of origin and was substantially motivated by animus toward Muslims. See supra Count Four. 54. The EO exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity. 55. The INA forbids discrimination in issuance of visas based on a person’s race, nationality, place of birth, or place of residence. 8 U.S.C. § 1152(a)(1)(A). 56. The INA and implementing regulations entitle Petitioners to enter the United States as LPRs. 57. Respondents’ actions in detaining and mistreating Petitioners were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of APA § 706(2)(A); contrary to constitutional right, power, privilege, or immunity, in violation of APA § 706(2)(B); 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).
COUNT SIX RELIGIOUS FREEDOM RESTORATION ACT
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58. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
59. The EO will have the effect of imposing a special disability on the basis of religious views or religious status, by withdrawing an important immigration benefit principally from Muslims on account of their religion. In doing so, the EO places a substantial burden on Petitioners’ exercise of religion in a way that is not the least restrictive means of furthering a compelling governmental interest.
PRAYER FOR RELIEF WHEREFORE, Petitioners pray that this Court grant the following relief: (1) Issue a Writ of Habeas Corpus requiring Respondents to release Petitioners forthwith; (2) Issue an injunction ordering Respondents not to detain any Petitioners solely on the basis of the EO; (3) Enter a judgment declaring that Respondents’ detention of Petitioners is and will be unauthorized by statute and contrary to law; (4) Award Petitioners reasonable costs and attorney’s fees; and (5) Grant any other and further relief that this Court may deem fit and proper.
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Respectfully submitted,
_______//s//________________ Date: 1/28/2017 Simon Y. Sandoval-Moshenberg (VA 77110) LEGAL AID JUSTICE CENTER 6066 Leesburg Pike #520 Falls Church, VA 22041 (703) 720-5605 / cell (434) 218-9376 simon@justice4all.org Andrew J. Pincus (pro hac vice motion forthcoming) Paul W. Hughes MAYER BROWN LLP 1999 K Street, N.W. Washington, D.C. 20006 (202) 263-2000 apincus@mayerbrown.com phughes@mayerbrown.com
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 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 1 of 23 PageID# 36

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

TAREQ AQEL MOHAMMED AZIZ and
AMMAR AQEL MOHAMMED AZIZ, by their next friend,
AQEL MUHAMMAD AZIZ,
and
JOHN DOES 1-60,
on behalf of themselves and others similarly situated,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; WAYNE BIONDI, Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles, and EIGHT UNNAMED CBP AGENTS AT DULLES AIRPORT,
Respondents.

Case No. 1:17-cv-116 Date: January 30, 2017

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 2 of 23 PageID# 37
INTRODUCTION 1. Pursuant to an Executive Order signed by President Donald Trump on January 27, 2016, the U.S. government banned entry into the United States by all non-citizens from seven listed countries, subject to an undefined waiver process. This ban, when first promulgated, included individuals on immigrant visas and returning lawful permanent residents. 2. The Immigration and Nationality Act provides no way to legally effectuate such a ban against this category of immigrants. As a result, upon information and belief, Department of Homeland Security officials have been effectuating the ban by bullying these arriving immigrants into “voluntarily” relinquishing their claims to lawful permanent residence into the United States. 3. On information and belief, respondents (through their agents and employees) lied to immigrants arriving after the Executive Order was signed, falsely telling them that if they did not sign a relinquishment of their legal rights, they would be formally ordered removed from the United States, which would bring legal consequences including a five-year bar for reentry to the United States. Because respondents knew that there was no valid, legal basis to remove these individuals from the United States, these were material, false representations. 4. Throughout this time, respondents denied arriving immigrants access to legal counsel. 5. On information and belief, these acts occurred nationwide, including but not limited to Washington-Dulles International Airport. During the first 24 to 48 hours that the ban was in place, Customs & Border Protection reports that it denied entry to at least 109 individuals. Many of these individuals were unlawfully compelled to “voluntarily” renounce their U.S. immigration status.
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Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 3 of 23 PageID# 38
6. Petitioners Tareq Aqel Mohammed Aziz (Tareq) and Ammar Aqel Mohammed Aziz (Ammar) are two brothers of Yemeni nationality, who were granted immediate relative immigrant visas (IR2 category) by virtue of their status as immediate relatives of their father, a US citizen.
7. On the morning of January 28, 2017, they landed in Washington-Dulles International Airport (IAD). This was a moment that they and their father had waited for and dreamed of for many years. But their dream quickly and inexplicably converted into a nightmare: instead of being permitted to transit to their connecting flight, Tareq and Ammar were handcuffed, detained, forced to sign papers that they neither read nor understood, and then placed onto a return flight to Ethiopia just two and a half hours after their landing.
8. During the brief time Tareq and Ammar were in the United States, employees or agents of respondents coerced Tareq and Ammar to sign U.S. Citizenship and Immigration Services Form I-407, which is entitled “Record of Abandonment of Lawful Permanent Resident Status.” The immigrant visas that they had fought so long and hard to obtain were thereupon cancelled – and, to add insult to injury, this was falsely claimed to be a result of their voluntary request. See https://www.uscis.gov/i-407 (“Use Form I-407 to let us know that you have decided voluntarily to abandon your status as a lawful permanent resident of the United States. We will then update your records to show that you are no longer an LPR.”).
9. Tareq and Ammar signed these papers because agents or employees of respondents misrepresented that, if they failed to sign them, that they would be ineligible for entry to the United States for a period of at least five years. That representation was not true.
10. Tareq and Ammar are currently in Addis Ababa Bole International Airport, where they remain in limbo. They do not want to return to Yemen, which is currently in a state of civil
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Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 4 of 23 PageID# 39
war. They are thus constructively in the custody of the United States. Tareq and Ammar wish to return to the United States, to reside with their father.
11. What happened to Tareq and Ammar is illustrative of what happened to dozens— if not hundreds—of LPRs and immigrant visa holders throughout the country on January 27 and 28, 2017. In these circumstances described above, any relinquishment of rights via a form I-407 was not voluntary, knowing, or freely given. Instead, it was the direct product of respondents’ agents’ misrepresentations as to what would occur if these individuals refused to sign. On information and belief, similarly-situated individuals who did not sign I-407s were ultimately admitted into the United States—thus demonstrating the falsity of the representations of respondents’ agents.
JURISDICTION AND VENUE 12. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1361, 2241, 2243, and the Habeas Corpus Suspension Clause of the U.S. Constitution. This court has further remedial authority pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. 13. Venue properly lies within the Eastern District of Virginia, Alexandria Division because a substantial part of the events or omissions giving rise to this action occurred in the District. 28 U.S.C. § 1391(b). 14. No petition for habeas corpus has previously been filed in any court to review petitioners’ cases.
PARTIES 15. Petitioner Tareq Aqel Mohammed Aziz is a 21-year-old citizen and national of Yemen. He was granted an immigrant visa (IR2 category) by the US Embassy in Djibouti, by virtue of being an immediate relative of a US citizen. He is a Muslim.
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16. Petitioner Ammar Aqel Mohammed Aziz, is a 19-year-old citizen and national of Yemen. He was granted an immigrant visa (IR2 category) by the US Embassy in Djibouti, by virtue of being an immediate relative of a US citizen. He is a Muslim.
17. Aqel Muhammad Aziz is a US citizen. He is a resident of Flint, Michigan. He is a Muslim.
18. Petitioners JOHN DOES 1-60 are approximately 60 lawful permanent residents of the United States, or immigrant visa holders, all nationals of Syria, Libya, Iran, Iraq, Somalia, Yemen or Sudan, who landed at Dulles Airport on January 27 and/or 28, 2017. Upon information and belief, some of these John Does were, like Tareq and Ammar, unlawfully forced to withdraw their applications for admission by means of being compelled into signing I-407 forms against their will and without their knowledge or consent, and placed on planes headed to foreign countries.1
19. The U.S. Department of Homeland Security (“DHS”) is a cabinet department of the United States federal government with the primary mission of securing the United States.
20. U.S. Customs and Border Protection (“CBP”) is an agency within DHS with the primary mission of detecting and preventing the unlawful entry of persons and goods into the United States.
21. Respondent John Kelly is the Secretary of DHS. Secretary Kelly has immediate or constructive custody of Petitioners and other members of the proposed class. He is sued in his official capacity.
1 Petitioners anticipate seeking leave to file amended pleadings as further John Does are identified.
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22. Respondent Kevin K. McAleenan is the Acting Commissioner of CBP. Acting Commissioner McAleenan has immediate or constructive custody of petitioners and other members of the proposed class. He is sued in his official capacity.
23. Respondent Wayne Biondi is the Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles, which has immediate or constructive custody of petitioners. He is sued in his official capacity.
24. Respondent Donald Trump is the President of the United States. He is sued in his official capacity.
25. Respondents Eight Unnamed CBP Agents at Dulles Airport are employees of CBP, acting at all times in their official capacity and under the direct and specific orders of Messrs. Kelly, McAleenan, and Trump. They are sued in their official capacity.
STATEMENT OF FACTS President Trump’s January 27, 2017 Executive Order 26. On January 20, 2017, Donald Trump was inaugurated as the forty-fifth President of the United States. Throughout his campaign, he made repeated and specific promises to enact a “Muslim ban” once elected. 27. One week later, on January 27, at about 4:30pm, President Trump signed an executive order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States,” which is attached hereto as Exhibit A and is hereinafter referred to as the “EO.” 28. Citing the threat of terrorism committed by foreign nationals, the EO directs a variety of changes to the manner and extent to which non-citizens may seek and obtain admission to the United States, particularly (although not exclusively) as refugees.
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29. Most relevant to the instant action is Section 3(c) of the EO, in which President Trump proclaims “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 that he is therefore “suspend[ing] entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order,” with narrow exceptions not relevant here. (Emphasis added.)
30. There are seven countries that fit the criteria in 8 U.S.C. § 1187(a)(12): Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. According to the terms of the EO, therefore, the “entry into the United States” of non-citizens from those countries is “suspended” from 90 days from the date of the EO.
31. Consistent with its terms, the EO was at first applied to all noncitizens from the listed countries, regardless of immigration status. Only on the afternoon of January 29, 2016, did Respondent Kelly publish a memorandum stating that the EO would henceforth generally not be applied to returning lawful permanent residents (LPRs). However, a DHS Fact Sheet clarified that this exception did not apply to first-time entrants on immigrant visas. See Exh. C at p.2 (“Importantly, however, lawful permanent residents of the United States traveling on a valid I-551 will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate.” (Emphasis added.)). As of the date of filing this pleading, the EO is still being applied to bar the entry of first-time entrants on immigrant visas.
Tareq and Ammar 32. After performing standard administrative processing and security check procedures, the federal government deemed both Tareq and Ammar to be admissible to the United States as immigrants.
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33. Both individuals were therefore issued valid U.S. immigrant visas, category IR2, by the U.S. Embassy in Djibouti. In order to obtain these visas, they passed rigorous background checks, and the Embassy determined they were not inadmissible for any reason under law. They obtained these visas by virtue of their status as immediate relatives of their father, who is a US citizen. (Neither they nor their father committed fraud or material misrepresentations at any point during the visa process.)
34. Excited that they would finally be reunited as a family, Tareq and Ammar then traveled from Djibouti to Addis Ababa, Ethiopia, from where they departed on a flight to Washington-Dulles International Airport (“IAD”). The flight departed Ethiopia about two hours before President Trump signed and promulgated the EO. The flight made a stop in Dublin, Ireland, and then landed at IAD at around 8:00am on Saturday, January 28. While in the air, they had no idea that the EO even existed.
35. Tareq and Ammar intended to be admitted into and enter the United States on their valid IR2 visas, whereupon they would become lawful permanent residents (LPRs), and then continue on to Michigan where their father was awaiting them.
36. Upon deplaning, officers or agents of respondents handcuffed Tareq and Ammar. 37. Officers or agents of respondents fingerprinted and photographed them. Officers or agents of respondents also seized Tareq and Ammar’s immigration paperwork, including a packet of documents necessary to obtain entry into the United States in LPR status. That material was never returned to Tareq and Ammar. 38. Tareq and Ammar were forced to wait for approximately an hour until employees or agents of respondents returned. Tareq overheard that his visa had been canceled.
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39. An employee or agent of respondents presented the brothers with documents to sign. Tareq stated that he did not understand the documents. The employees or agents stated that “our country will discuss this problem with your country.” Upon information and belief, these officers or agents compelled Tareq and Ammar to sign U.S. Citizenship and Immigration Services Form I-407, which is entitled “Record of Abandonment of Lawful Permanent Resident Status.” See https://www.uscis.gov/i-407.
40. Tareq and Ammar were at the time shocked and bewildered. They did not understand the documents presented to them. They were not informed of the legal consequences of those documents. They were not offered the opportunity to consult with legal counsel.
41. An employee or agent of respondents falsely informed Tareq and Ammar that, if they did not sign the documents, they would be sent to Yemen and that they would be barred from returning to the United States for five years.
42. It therefore appears that an employee or agent of respondents represented to Tareq and Ammar that, if they declined to sign an I-407, they would be officially removed from the United States and thus subject to an entrance bar of five years. This statement was highly material in these circumstances and it was plainly false. Respondents possessed no legal right to remove Tareq and Ammar from the United States.
43. In light of this significant pressure exerted by employees or agents of respondents, Tareq and Ammar felt that they had no choice other than to sign the documents. They were fearful that if they did not sign the documents, that they would be indefinitely detained or that they would be barred from entering the United States for a lengthy period of time. Tareq and Ammar did not understand any of the consequences of signing the documents.
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44. Tareq and Ammar were not permitted to keep copies of the documents that they were compelled and coerced into signing. No copies of those documents have been provided.
45. CBP agents then stamped “Cancelled” over Tareq and Ammar’s IR2 immigrant visas.
46. Subsequently, attorneys for the respondents have suggested that Tareq and Ammar “voluntarily” relinquished their rights as immigrant visa holders. Tareq and Ammar deny that their conduct in signing any documents at Dulles airport was voluntary. They made neither a free choice nor an informed choice.
47. The reason that CBP agents compelled Tareq and Ammar to sign I-407 documents, is that, because the brothers were not subject to expedited removal, nor inadmissible, there was no other legal mechanism to bar Tareq and Ammar from entering the United States and becoming lawful permanent residents thereof. See generally 8 U.S.C. § 1225(b). Yet, they were under specific orders from respondents to bar admission of individuals in Tareq and Ammar’s situation. Accordingly, respondents’ agents engaged in this illegal scheme.
48. Tareq and Ammar were then compelled to purchase tickets—at their own expense—on the next flight to Addis Ababa, Ethiopia.
49. Tareq and Ammar departed Dulles on an Ethiopian Airlines flight on the morning of Saturday, January 28, about two and a half hours after landing at Dulles Airport.
50. Since arriving in Ethiopia, Tareq and Ammar have been in limbo at the Addis Ababa Bole International Airport. Their passports have been confiscated by Ethiopian Airlines authorities.
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51. Tareq and Ammar do not wish to return to Yemen, which is currently in a state of civil war. They wish to return to the United States, to live with their father in Flint, Michigan, pursuant to the immigrant visa properly granted by the U.S. government.
John Does 1-60. 52. Petitioners John Does 1-60 are approximately 50-60 returning lawful permanent residents, or individuals traveling on valid immigrant visas entitling them to be admitted into the United States in lawful permanent resident status. Most of these were individuals returning from trips abroad, all of whom are nationals of one of the following seven countries: Lybia, Iraq, Iran, Yemen, Syria, Sudan, Somalia. All were held for some time, during January 27 or 28, 2017, in the international arrivals area of Dulles Airport. 53. Upon information and belief, many of petitioner John Does 1-60 were, like Tareq and Ammar, forced to withdraw their applications for admission to the United States by means of being compelled against their will and without knowledge or consent to sign forms I-407, and then placed on planes headed to foreign destinations. See, e.g., http://jezebel.com/woman-and-her-2children-held-at-dulles-airport-for-20-1791762183 (describing how a Somali woman entering the United States on an immigrant visa together with her U.S.-citizen children “was pressured to sign papers and told that her visa had been canceled. When she refused to sign, asking to wait until her husband arrived, immigration officers threatened that she would not be permitted to return to the United States. She was then told to sign her children’s paperwork so that they could accompany her back to Africa. . . . ‘They handcuffed her, even when she went to the bathroom[.]’”). 54. Discovery will reveal the full identifies of these individuals. Counsel is meanwhile working diligently to uncover the identities of John Does 1-60. Petitioners’ claim to lawful admission to the United States as immigrants
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55. No grounds of inadmissibility under the Immigration and Nationality Act applies to either Tareq or Ammar, nor are they subject to expedited removal for any reason, nor is there any reason under Title 8 of U.S. Code or Title 8 of the Code of Federal Regulations to bar them from entering the United States as immigrants and thereby lawful permanent residents.
56. Congress has provided that immigrants in petitioners’ situation are entitled to enter the United States, and that if the government disagrees, it must institute regular removal proceedings before an immigration judge. 8 U.S.C. § 1225(b). The only exceptions to that rule (for example, criminals, stowaways, fraud, or individuals arriving without valid documentation) do not apply here.
57. The government considers that Tareq and Ammar “withdrew their application for admission” and then voluntarily departed. That is, as a matter of fact, false. The jurisdictional bars of 8 U.S.C. § 1252 therefore do not apply.
The Court’s issuance of a Temporary Restraining Order. 58. On January 28, 2017, at approximately 9:30pm ET, this Court granted a TRO. It provided: “a) respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International airport; b) respondents are forbidden from removing petitioners— lawful permanent residents at Dulles International Airport—for a period of 7 days from the issuance of this Order.”2
2 The government can be expected to argue that Tareq and Ammar were not in fact “lawful permanent residents” as they were never admitted on their immigrant visas. As set forth herein, it makes no material difference to the legal analysis: they were entitled to be admitted; or, failing that, to be placed in regular removal proceedings before an immigration judge.
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59. At the time the TRO issued, unbeknownst to counsel or to their father (or anyone else outside of CBP), respondents had already placed Tareq and Ammar on a plane departing the country, and they were in flight.3
60. At the time the TRO issued, at least some JOHN DOES 1-60 were held in secure areas at Dulles, including in secondary screening.
61. On the evening of Saturday, January 28, 2017, following the issuance of the Court’s TRO, CBP personnel refused to permit any lawyers access to LPRs subject to the new screening provisions established by the Executive Order.
62. CBP personnel indicated that it would not comply with the order unless it was served via “official channels.”
63. CBP personnel also indicated that the Court’s order was limited to LPRs in “detention,” but asserted that individuals at Dulles were not in “detention.” They claimed that the TRO did not apply because individuals are instead subject to “processing.”
64. Notwithstanding the assertions of CBP personnel, petitioners were not free to leave CBP custody. Additionally, the INS Insp. Field Manual provides, at Section 17.8, that “During an inspection at a port-of-entry, detention begins when the applicant is referred into secondary and waits for processing.”
65. The refusal of respondents’ agents to comply with the counsel-access provisions of the TRO are by now well documented. See http://www.thedailybeast.com/articles/
3 Counsel was not aware of this fact because, despite repeated inquiries by telephone and in person, CBP personnel refused to advise counsel as to any facts regarding the brothers’ case. Likewise, their father was unaware of this fact because, at no time during their two-and-a-half hours in CBP custody were they allowed to make any telephone calls or otherwise advise anyone in the outside world as to what was happening to them.
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2017/01/29/trump-s-border-patrol-defies-judge-u-s-senator-at-dulles-airport-at-his-firstconstitutional-crisis-unfolds.html.
66. U.S. Senator Cory Booker arrived at Dulles airport on the evening of Saturday, January 28, 2017. Respondents’ agents continued to refuse compliance. Holding a copy of this Court’s TRO, Senator Booker stated that “I am now of the belief that though this was issued by the judicial branch, that it was violated tonight.” Id.
67. Senator Booker has submitted affidavit regarding his time at Dulles, attached hereto as Exh. B. In it, he states:
Prior to my arrival at IAD, a CBP employee who was not present at IAD communicated to my staff member, upon receiving the TRO, that “individuals are not entitled to counsel during immigration processing at a port of arrival.” When my staff member challenged their assertion in light of the TRO, they responded that “The lawyers are looking at the order.” Upon arrival, I met with Metropolitan Washington Airports Authority (MWAA) police in an effort to obtain compliance with a Temporary Restraining Order (TRO) from the Eastern District of Virginia (E.D. Va.) and a nationwide stay issued by the Eastern District of New York (E.D.N.Y.). At my request, the TRO was presented by the MWAA police officer to CBP officials on site. I did not speak directly with Customs and Border Protection (CBP) or any other representative of the Department of Homeland Security (DHS). 68. In the late afternoon of January 29, 2017—approximately 16 hours after the Court issued the TRO—counsel for respondents confirmed that respondents would provide notice of the Court’s order to arriving LPRs subject to screenings pursuant to the Executive Order. But respondents refused to permit in-person access to lawyers. Likewise, respondents refused to provide specialized telephone numbers to arriving LPRs, instead providing only generic materials listing the names and phone numbers for 10 different immigration non-profits in the Washington DC metro-area – nine of which respondents knew had no interest in or ability to provide legal
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advice to this particular population (and indeed were not even open and available to take calls on a Sunday). See https://www.justice.gov/eoir/file-/ProBonoVA/download.
69. Throughout this time, at all times, more than 25 lawyers were present at Dulles Airport in the international arrivals area, ready and willing to offer free, pro-bono legal services to the JOHN DOES.
70. Had Tareq, Ammar, and the JOHN DOES been properly advised of their legal rights and the legal consequences of signing an I-407, they would not have done so.
Representative Allegations 71. In addition to Petitioners, there are there are numerous other individuals with legal permanent resident status or who are traveling on valid U.S. immigrant visas who have been or will be either detained and/or coerced into signing a Form I-407. Each of these similarly situated individuals is entitled to bring a petition for a writ of habeas corpus or, in the alternative, a complaint for declaratory and injunctive relief, to prohibit respondents’ policy, pattern, and practice of prohibiting class members from entering the United States when they arrive at U.S. borders with valid entry documents and coercing the relinquishment of rights. These similarly situated individuals satisfy the numerosity, typicality, commonality, adequacy of representation requirements established by Fed. R. Civ. P. 23. Petitioners therefore will move this Court for an order certifying a representative class of Petitioners consisting of all individuals with legal permanent resident status or traveling on valid U.S. immigrant visas, who are from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, legally authorized to enter the United States, and who have been or will be denied entry to the United States on the basis of the January 27, 2017 Executive Order.
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CAUSES OF ACTION COUNT ONE
FIFTH AMENDMENT – PROCEDURAL AND SUBSTANTIVE DUE PROCESS DENIAL OF RIGHT TO ENTER UNITED STATES
72. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
73. Respondents have infringed petitioners’ procedural and substantive due process rights in multiple respects.
74. To begin with, petitioners have a due process interest in the statutory rights granted by Congress; that is, “[m]inimum due process rights attach to statutory rights.” Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (alteration in original) (quoting Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996)).
75. U.S. law, including federal statutes and regulations, obligate the United States to allow LPRs and immigrant visa holders admission into the United States, unless those individuals are for some reason inadmissible. In denying petitioners admission to the United States, respondents violated petitioners’ procedural and substantive due process rights.
76. One of the procedural due process rights denied petitioners was access to legal counsel, to their specific and material injury. Respondents prohibited petitioners from conferring with attorneys who were present on the scene and willing to advise and represent them on a pro bono basis.
77. Further, the grant of the immigrant visas to petitioners, such as the IR2 visas to Tareq and Ammar, created an entitlement to the lawful permanent resident status and subsequent provision of a “green card.” These entitlements were revoked without due process of law.
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78. Likewise, the conduct of respondents has amounted to an illegal retroactive revocation of the immigration status previously extended by the U.S. government. See Estrada v. Holder, 604 F.3d 402, 406 (7th Cir. 2010); Sharkey v. Quarantillo, 541 F.3d 75, 86, 93 (2d Cir. 2008); United States v. Figueroa-Burruel, No. CR 10-3738-TUC-RCC, 2011 WL 6100288, at *9 (D. Ariz. Oct. 11, 2011), report and recommendation adopted sub nom. United States v. Burruel, No. CR 10-3738-TUC-RCC, 2011 WL 6099355 (D. Ariz. Dec. 8, 2011). The retroactive retraction of this status is an unlawful action in violation of due process rights.
79. The actions of respondents—as well as respondents’ employees and agents— coerced or compelled Tareq and Ammar to withdraw their applications for admission against their will. These were neither freely made nor knowing and informed decisions. The conduct of respondents, and their employees and agents, thus violated petitioners’ procedural and substantive due process rights.
COUNT TWO THE IMMIGRATION AND NATIONALITY ACT 80. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 81. The Immigration and Nationality Act and implementing regulations entitle Tareq, Amar, and John Does 1-50 to enter the United States as immigrants or LPRs. 82. Respondents’ actions in sending Tareq and Ammar to Yemen, and John Does 1-50 to various foreign countries, deprive petitioners of their statutory and regulatory rights. 83. In particular, because petitioners have valid and/or approved immigrant visas or lawful permanent resident status, denial of admission into the United States violates 8 U.S.C. §§ 1151, 1201, 1225, and accompanying regulations.
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COUNT THREE THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. § 1152 84. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 85. Respondents’ actions in sending Tareq and Ammar to Yemen, and John Does 1-50 to various foreign countries, also violates 8 U.S.C. § 1152 and accompanying regulations. This statute prohibits discrimination against individuals on the basis of nationality, without sufficient justification.
COUNT FOUR FIRST AMENDMENT – ESTABLISHMENT CLAUSE 86. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 87. Tareq, Ammar, and John Does 1-50 were denied entry to the United States or forced to withdraw their applications for admission to the United States and/or abandon their status as lawful permanent residents as a result of the EO. 88. The EO exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity. The EO therefore violates the Establishment Clause of the First Amendment by not pursuing a course of neutrality with regard to different religious faiths.
COUNT FIVE FIFTH AMENDMENT – EQUAL PROTECTION 89. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
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90. The EO discriminates against petitioners on the basis of their countries of origin and religion, without sufficient justification, and therefore violates the equal protection component of the Due Process Clause of the Fifth Amendment.
91. Additionally, the EO was substantially motivated by animus toward—and has a disparate effect on—Muslims, which also violates the equal protection component of the Due Process Clause of the Fifth Amendment. Jana-Rock Const., Inc. v. N.Y. State Dep’t of Econ. Dev., 438 F.3d 195, 204 (2d Cir. 2006); Hunter v. Underwood, 471 U.S. 222 (1985).
92. Respondents have demonstrated an intent to discriminate against petitioners on the basis of religion through repeated public statements that make clear the EO was designed to prohibit the entry of Muslims to the United States. See Michael D. Shear & Helene Cooper, Trump Bars Refugees and Citizens of 7 Muslim Countries, N.Y. Times (Jan. 27, 2017), (“[President Trump] ordered that Christians and others from minority religions be granted priority over Muslims.”); Carol Morello, Trump Signs Order Temporarily Halting Admission of Refugees, Promises Priority for Christians, Wash. Post (Jan. 27, 2017).
93. Applying a general law in a fashion that discriminates on the basis of religion in this way violates petitioners’ rights to equal protection the Fifth Amendment Due Process Clause. Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). Petitioners satisfy the Supreme Court’s test to determine whether a facially neutral law—in this case, the EO and federal immigration law—has been applied in a discriminatory fashion. The Supreme Court requires an individual bringing suit to challenge the application of a law to bear the burden of demonstrating a “prima facie case of discriminatory purpose.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-7 (1977). This test examines the impact of the official action, whether there has been a clear pattern unexplainable on other grounds
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besides discrimination, the historical background of the decision, the specific sequence of events leading up to the challenged decision, and departures from the normal procedural sequence. Id.
94. Here, President Donald Trump and senior staff have made clear that EO will be applied to primarily exclude individuals on the basis of their national origin and being Muslim. See, e.g., sources cited, supra ¶ 48, See, e.g., Donald J. Trump, Donald J. Trump Statement On Preventing Muslim Immigration, (Dec. 7, 2015), https://www.donaldjtrump.com/pressreleases/donald-j.-trump-statement-on-preventing-muslim-immigration (“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.”); Abby Phillip and Abigail Hauslohner, Trump on the Future of Proposed Muslim Ban, Registry: ‘You know my plans’, Wash. Post (Dec. 22, 2016). Further, the President has promised that preferential treatment will be given to Christians, unequivocally demonstrating the special preferences and discriminatory impact that the EO has upon Petitioners. See sources cited, supra.
95. Thus, Respondents have applied the EO with forbidden animus and discriminatory intent in violation of the equal protection of the Fifth Amendment and violated petitioners’ equal protection rights.
COUNT SIX ADMINISTRATIVE PROCEDURE ACT 96. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 97. Respondents detained and mistreated petitioners solely pursuant to an executive order issued on January 27 and 28, 2017, which expressly discriminates against Petitioners on the basis of their countries of origin and was substantially motivated by animus toward Muslims..
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98. The EO exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity.
99. The INA forbids discrimination in issuance of visas based on a person’s race, nationality, place of birth, or place of residence. 8 U.S.C. § 1152(a)(1)(A).
100. The INA and implementing regulations entitle Petitioners to enter the United States as LPRs.
101. Respondents’ actions in detaining and mistreating Petitioners were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of APA § 706(2)(A); contrary to constitutional right, power, privilege, or immunity, in violation of APA § 706(2)(B); 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).
COUNT SEVEN RELIGIOUS FREEDOM RESTORATION ACT 102. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 103. The EO will have the effect of imposing a special disability on the basis of religious views or religious status, by withdrawing an important immigration benefit principally from Muslims on account of their religion. In doing so, the EO places a substantial burden on petitioners’ exercise of religion in a way that is not the least restrictive means of furthering a compelling governmental interest. 104. Respondents’ actions constitute a violation of the Religious Freedom Restoration Act. See 42 U.S.C. § 2000bb-1 et seq.
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PRAYER FOR RELIEF WHEREFORE, Petitioners pray that this Court grant the following relief: (1) To the extent that any petitioners remain in custody of respondents, issue a Writ of Habeas Corpus requiring respondents to release petitioners forthwith; (2) Issue an injunction ordering respondents not to detain any petitioners, including but not limited to the John Doe petitioners, and anyone similarly situated, solely on the basis of the EO, or deny any petitioners admission to the United States solely on the basis of the EO; (3) Enter a judgment declaring that respondents’ detention of petitioners is and will be unauthorized by statute and contrary to law; (4) Issue an injunction ordering respondents to invalidate the improperly coerced I-407 forms, reinstate the petitioners’ immigrant visas and/or LPR status, return the petitioners to Dulles Airport, and admit them into the United States, subject to the laws and regulations existing prior to January 27, 2017; (6) Award petitioners their costs and reasonable attorney’s fees; and (7) Grant any other and further relief that this Court may deem fit and proper. Petitioners/plaintiffs demand a jury trial on all issues and claims so triable.
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Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 23 of 23 PageID# 58 Respectfully submitted,

_______//s//___________________________ Simon Y. Sandoval-Moshenberg (VA 77110) Mary Bauer (VA 31388) Rebecca Wolozin (VA 89690) Elaine Poon (pro hac vice motion forthcoming) LEGAL AID JUSTICE CENTER 6066 Leesburg Pike #520 Falls Church, VA 22041 (703) 720-5605 simon@justice4all.org mary@justice4all.org becky@justice4all.org elaine@justice4all.org
Andrew J. Pincus (pro hac vice motion forthcoming) Paul W. Hughes (pro hac vice motion filed) MAYER BROWN LLP 1999 K Street, N.W. Washington, D.C. 20006 (202) 263-2000 apincus@mayerbrown.com phughes@mayerbrown.com

Date: 1/30/2017

23

Case 1:17-cv-00116-LMB-TCB Document 7-1 Filed 01/30/17 Page 1 of 9 PageID# 59
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-

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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

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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.

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(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

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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

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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.

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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

Case 1:17-cv-00116-LMB-TCB Document 7-1 Filed 01/30/17 Page 8 of 9 PageID# 66
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.

Case 1:17-cv-00116-LMB-TCB Document 7-1 Filed 01/30/17 Page 9 of 9 PageID# 67

THE WHITE HOUSE, January 27, 2017.

DONALD J. TRUMP # # #

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Case 1:17-cv-00116-LMB-TCB Document 7-3 Filed 01/30/17 Page 1 of 3 PageID# 69
Press Office U.S. Department of Homeland Security
FACT SHEET
January 29, 2017 Contact: DHS Press Office, 202-282-8010
FACT SHEET: Protecting the Nation from Foreign Terrorist Entry to the United States
WASHINGTON - The executive order signed on January 27, 2017, allows for the proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals. The United States has the world’s most generous immigration system, yet it has been repeatedly exploited by terrorists and other malicious actors who seek to do us harm. In order to ensure that the United States government can conduct a thorough and comprehensive analysis of the national security risks posed from our immigration system, it imposes a 90-day suspension on entry to the United States of nationals of certain designated countries—countries that were designated by Congress and the Obama Administration as posing national security risks in the Visa Waiver Program.
In order to protect Americans, and to advance the national interest, the United States must ensure that those entering this country will not harm the American people subsequent to their entry, and that they do not bear malicious intent toward the United States and its people. The executive order protects the United States from countries compromised by terrorism and ensures a more rigorous vetting process. This Executive Order ensures that we have a functional immigration system that safeguards our national security.
This executive order, as well as the two issued earlier in the week, provide the Department with additional resources, tools and personnel to carry out the critical work of securing our borders, enforcing the immigration laws of our nation, and ensuring that individuals who pose a threat to national security or public safety cannot enter or remain in our country. Protecting the American people is the highest priority of our government and this Department.
The Department of Homeland Security will faithfully execute the immigration laws and the President’s executive order, and we will treat all of those we encounter humanely and with professionalism.

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Authorities The Congress provided the president of the United States, in section 212(f) of the Immigration and Nationality Act (INA), with the authority to suspend the entry of any class of aliens the president deems detrimental to the national interest. This authority has been exercised by nearly every president since President Carter, and has been a component of immigration laws since the enactment of the INA in 1952.
Actions For the next 90 days, nearly all travelers, except U.S. citizens, traveling from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen will be temporarily suspended from entry to the United States. The 90 day period will allow for proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals.
Importantly, however, lawful permanent residents of the United States traveling on a valid I-551 will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate. The entry of these individuals, subject to national security checks, is in the national interest. Therefore, we expect swift entry for these individuals.
In the first 30 days, DHS will perform a global country-by-country review of the information each country provides when their citizens apply for a U.S. visa or immigration benefit. Countries will then have 60 days to comply with any requests from the U.S. government to update or improve the quality of the information they provide.
DHS and the Department of State have the authority, on a case-by-case basis, to issue visas or allow the entry of nationals of these countries into the United States when it serves the national interest. These seven countries were designated by Congress and the Obama Administration as posing a significant enough security risk to warrant additional scrutiny in the visa waiver context.
The Refugee Admissions Program will be temporarily suspended for the next 120 days while DHS and interagency partners review screening procedures to ensure refugees admitted in the future do not pose a security risk to citizens of the United States.
The executive order does not prohibit entry of, or visa issuance to, travelers with 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 Department of Homeland Security along with the Department of State, the Office of the Director of National Intelligence, and the Federal Bureau of Investigation will develop uniform screening standards for all immigration programs government-wide.
Upon resumption of the U.S. Refugee Admissions Program, refugee admissions to the United States will not exceed 50,000 for fiscal year 2017.

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The Secretary of Homeland Security will expedite the completion and implementation of a biometric entry-exit tracking system of all travelers into the United States.
Federal Government As part of a broader set of government actions, the Secretary of State will review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal.
The Department of State will suspend the Visa Interview Waiver Program and ensure all individuals seeking nonimmigrant visas undergo an in-person interview.
Transparency The Department of Homeland Security, in order to be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest will make information available to the public every 180 days. In coordination with the Department of Justice, DHS will provide information regarding the number of foreign nationals charged with terrorism-related offense or gender-based violence against women while in the United States.

 
 Case 1:17-cv-00116-LMB-TCB Document 14 Filed 01/31/17 Page 1 of 3 PageID# 81

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al.,

)

)

Petitioners,

)

)

v.

)

)

DONALD TRUMP, President of the United

)

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

THE COMMONWEALTH OF VIRGINIA’S MOTION TO INTERVENE The Commonwealth of Virginia respectfully moves to intervene as a plaintiff in this case under Rule 24 of the Federal Rules of Civil Procedure. The Commonwealth is entitled to intervene of right under Rule 24(a) because no existing party adequately represents Virginia’s interest in protecting its residents from the ongoing unlawful enforcement of the recent Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” signed by President Donald J. Trump on January 27, 2017. The Commonwealth has substantial interests justifying its intervention. Virginia has a substantial interest in protecting its public universities and their faculty and students from the academic and fiscal disruption posed by the Executive Order. The Executive Order impairs the ability of students who are lawful permanent residents or present on student visas from continuing to attend Virginia’s public colleges and universities. That impairment will hamper the ability of Virginia’s colleges and universities to attract and retain foreign students in the future and result in a significant loss of tuition revenue to the Commonwealth. The Executive Order also hinders the travel of faculty members and other educational personnel employed by

1

Case 1:17-cv-00116-LMB-TCB Document 14 Filed 01/31/17 Page 2 of 3 PageID# 82

Virginia’s public colleges and universities. Faculty members and students who are unable to travel likely will be forced to forfeit their grant moneys. Moreover, Virginia has a quasisovereign interest “in the health and well-being—both physical and economic—of its residents in general,” which will be impaired if Virginia is not permitted to intervene. Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592, 607 (1982).
Alternatively, the Commonwealth should be granted permissive leave to intervene under Rule 24(b). The Commonwealth’s claims against the United States share common questions of law and fact with Petitioners’ claims, and no party will be prejudiced by permitting the Commonwealth’s intervention at this early stage of the litigation, on the second business day after the original complaint was filed.
For the reasons provided here and in the memorandum of law in support of intervention, the Commonwealth respectfully requests that the Court grant its motion to intervene. Virginia has attached a proposed order.
Counsel for the Commonwealth has conferred with Petitioners’ counsel, who has consented to the Commonwealth’s intervention. Counsel for the Commonwealth has sought the position of the United States and has spoken with the First Assistant United U.S. Attorney in the Eastern District of Virginia, but as of this filing does not have the government’s position.

Respectfully submitted, COMMONWEALTH OF VIRGINIA,

By:

/s/

Stuart A. Raphael (VSB No. 30380)

Solicitor General

Office of the Attorney General 202 North Ninth Street
2

Case 1:17-cv-00116-LMB-TCB Document 14 Filed 01/31/17 Page 3 of 3 PageID# 83
Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us Mark R. Herring Attorney General of Virginia Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us Matthew R. McGuire Assistant Attorney General mmcguire@oag.state.va.us Counsel for Commonwealth of Virginia
CERTIFICATE OF SERVICE I hereby certify that on January 31, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael
3

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al.,

)

)

Petitioners,

)

)

v.

)

)

DONALD TRUMP, President of the United

)

States; U.S. DEPARTMENT OF HOMELAND )

SECURITY; U.S. CUSTOM AND BORDER )

PROTECTION; JOHN KELLY, Secretary of

)

DHS; KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; and WAYNE BIONDI, )

Customs and Border Protection (CBP) Port

)

Director of the Area Port of Washington, Dulles. )

)

Respondents.

)

Civil Action No. 1:17-cv-116

ORDER THIS MATTER IS BEFORE THE COURT on the Motion to Intervene filed by the Commonwealth of Virginia on January 31, 2017. In consideration of the arguments advanced, it is hereby

ORDERED that the Commonwealth’s Motion to Intervene is GRANTED.

Date: ___________________

Entered: Judge Leonie M. Brinkema

1

 
 Case 1:17-cv-00116-LMB-TCB Document 15 Filed 01/31/17 Page 1 of 9 PageID# 85

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al.,

)

)

Petitioners,

)

)

v.

)

)

DONALD TRUMP, President of the United

)

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

BRIEF IN SUPPORT OF THE COMMONWEALTH OF VIRGINIA’S MOTION TO INTERVENE

Mark R. Herring Attorney General of Virginia
Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us
Matthew R. McGuire (VSB No. 84194) Assistant Attorney General mmcguire@oag.state.va.us

Stuart A. Raphael (VSB No. 30380) Solicitor General
Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us
Counsel for Commonwealth of Virginia

January 31, 2017

Case 1:17-cv-00116-LMB-TCB Document 15 Filed 01/31/17 Page 2 of 9 PageID# 86
On January 27, 2017, President Donald J. Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive Order”). That order immediately led to the violation of the constitutional and statutory rights of numerous residents of the United States. Because innumerable Virginia residents have been and will continue to be subjected to degrading and unlawful treatment under the Executive Order, the Commonwealth is compelled to intervene in this case. It is well recognized that a State has a quasi-sovereign interest “in assuring that the benefits of the federal system are not denied to its general population.”1 Here, the Commonwealth has an overriding interest in “the well-being of its” lawful permanent residents as well as residents who have been living, working, and attending school under valid visas.2 Intervention therefore is required so that the Commonwealth can both protect its own sovereign interests and vindicate its residents’ civil rights.3 Because no existing party adequately represents Virginia’s fundamental interest in this case and no party will be prejudiced by permitting intervention at this early stage of the litigation, the Commonwealth’s motion to intervene should be granted.
STATEMENT OF FACTS Respondents have applied the Executive Order to individuals with lawful permanent resident status, to persons with valid student and work visas, and to individuals who would seek asylum in the United States.4 The Executive Order provides, in pertinent part:
1 Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592, 608 (1982). 2 Id. at 602. 3 See New York v. Town of Wallkill, No. 01-Civ-0364, 2001 U.S. Dist. LEXIS 13364, at *5 (S.D.N.Y. Mar. 16, 2001) (“Based on this premise, courts of appeals and district courts routinely have permitted states to use the basic law enforcement tool of parens patriae litigation to seek remedies for civil rights violations.”). 4 Section 5 of the Executive Order suspends the U.S. Refugee Admissions Program for 120 days, indefinitely bars the admission of Syrian refugees, caps the number of refugees at 50,000 for
1

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Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security's determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
. . .
(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
2017, and allows for “case-by-case” exceptions such as “when the person is a religious minority in his country of nationality facing religious persecution.”
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national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked. Section 3 effectively bans anyone from Iran, Iraq, Syria, Sudan, Libya, Yemen, and Somalia from entering the United States for the next 90 days unless they are U.S. citizens or “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.” Critically absent from that list are legal permanent residents, as well as persons possessing J-2 visas, H-1B visas, student visas, and visitor visas. After President Trump signed the Executive Order, numerous individuals legally traveling to the United States were detained in airports worldwide.5 The named petitioners in this case are two legal permanent residents, Tareq Aqel Mohammed Aziz and Ammar Aqel Mohammed Aziz, who were detained at the Washington-Dulles International Airport when they landed on January 28, 2017.6 CBP has declined to release information about the number of persons it has detained, but the petition alleges that at least 50 to 60 other legal permanent residents were likewise detained at Dulles.7 This Court granted a temporary restraining order on January 28, 2017, ordering that “respondents shall permit lawyers access to all legal permanent residents being detained at Dulles” and that “respondents are forbidden from removing petitioners . . . for a period of 7 days.”8 The amended petition filed on January 30, 2017 states that the Petitioners “were handcuffed, detained, forced to sign papers that they neither read nor
5 Liam Stack, Trump’s Executive Order on Immigration: What We Know and What We Don’t, N.Y. Times (Jan. 29, 2017) (“The immigration ban unleashed chaos on the immigration system and in airports in the United States and overseas . . . .”), https://www.nytimes.com/2017/01/29/us/trump-refugee-ban-muslim-executive-order.html. 6 Pet. for Writ of Habeas Corpus ¶ 1, ECF No. 1. 7 Id. ¶ 2. 8 Temporary Restraining Order at 1, ECF No. 3.
3

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understood, and then placed onto a return flight to Ethiopia just two and a half hours after their landing.”9 The Respondents also never allowed “arriving immigrants access to legal counsel.”10
But the full extent of the Executive Order’s impact remains unclear. Because the government has not complied fully and transparently with this Court’s TRO, the Commonwealth has been hindered in its ability to identify the Virginia residents who have been detained at Dulles, moved to an immigration detention facility, or removed from the country.
Additionally, Virginia public universities and their administration, faculty, students, and families are being harmed by the Executive Order. For example, Virginia Tech obtains H-1B visas for faculty members and has a number of employees on such visas. After the January 27 Executive Order, employees from those countries can no longer enter (or exit) the United States. Virginia Commonwealth University has approximately 100 to 150 students who will be unable to reenter the United States to continue their education (or, alternatively, leave to visit their families).11 Students who are unable to perform their course of study because they are denied entry to the United States will cease paying tuition, causing fiscal harm to Virginia’s colleges and universities. Faculty members and other educational personnel who are lawful permanent residents or visa holders but covered by the Executive Order are likewise unable to reenter or exit the United States, interfering with their employment relations and disrupting the operation of Virginia’s colleges and universities. Faculty members at several Virginia universities likely will be forced to forfeit their grant moneys if they are unable to travel.
In sum, there are countless residents of the Commonwealth—people who live in Virginia, 9 Am. Pet. ¶ 7. 10 Id. ¶ 4. Respondents claimed on January 31, 2017 that they had complied with this Court’s order. 11 VCU also has a campus based in Qatar. The university’s educational programs rely on students and faculty from Qatar being able to travel to Richmond, Virginia.
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who work in Virginia, or who attend school in Virginia—whose lives and livelihoods have been and will be irreparably disrupted by the January 27 Executive Order.
ARGUMENT I. The Commonwealth satisfies the requirements to intervene as a matter of right
under Rule 24(a). Federal Rule of Civil Procedure 24(a) provides that “the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, 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 adequately represent that interest.” Would-be intervenors must show: “(1) an interest in the subject matter of the action; (2) that the protection of this interest would be impaired because of the action; and (3) that the applicant’s interest is not adequately represented by existing parties to the litigation.”12 The Commonwealth satisfies each requirement.13 First, the Commonwealth has a substantial legal interest in this case. Virginia has a quasi-sovereign interest as parens patriae “in the health and well-being—both physical and economic—of its residents in general.”14 Here, the unconstitutional January 27 Executive Order irreparably harms residents of the Commonwealth who have been or will be denied access to their homes, their jobs, their families, and their education. Virginia has an independent interest in protecting its public universities from the academic disruption and fiscal impacts caused when students on academic visas are unable to continue their education (and stop paying their tuition), and when faculty and other personnel holding work visas or permanent-residence status cannot
12 Teague v. Bakker, 931 F.2d 259, 260-61 (4th Cir. 1991). 13 The Commonwealth’s motion plainly is timely under Rule 24(a), having been filed within 3 days of the initial petition. 14 Alfred L. Snapp & Son, 458 U.S. at 607.
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enter or leave the country. Second, the Commonwealth’s ability to protect its critical interests will be impaired if
intervention is denied. While Petitioners have identified various constitutional issues with respect to those persons who are being detained without counsel at Dulles Airport, the problems with the January 27 Executive Order extend beyond Dulles. In the process of resolving the urgent, emerging issues at Dulles, the Court also will be considering the constitutional infirmities of the January 27 Executive Order. Doing so without affording the Commonwealth the opportunity to litigate additional reasons why the January 27 Executive Order should be enjoined would prejudice Virginia in a later case.
Third, the Commonwealth easily satisfies the “minimal” requirement that its interests are inadequately represented by existing parties to the case.15 Petitioners are rightly focused on the individuals illegally removed from the United States, or detained at Dulles, including those who have been denied access to counsel in violation of the TRO. The Commonwealth too desires that those individuals’ constitutional rights be respected. In addition to those individuals, the Commonwealth also seeks relief on behalf of all residents of the Commonwealth whose lives have been thrown into turmoil by the January 27 Executive Order. II. Alternatively, the Court should permit the Commonwealth to intervene under Rule
24(b). Under Rule 24(b), “the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.” “[T]he movant must satisfy three requirements: (1) the motion is timely; (2) the existence of a shared question of law
15 Teague, 931 F.2d at 262 (citing Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). See also JLS, Inc. v. Pub. Servs. Comm’n of W. Va., 321 F. App’x 286, 290 (4th Cir 2009) (“[W]hen a governmental agency’s interests appear aligned with those of a particular private group at a particular moment in time, ‘the government’s position is defined by the public interest, [not simply] the interests of a particular group of citizens.’”) (citation omitted).
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or fact in common with the main action; and (3) no undue delay or prejudice to the existing parties will result from the intervention.”16 “[L]iberal intervention is desirable to dispose of as much of a controversy ‘involving as many apparently concerned persons as is compatible with efficiency and due process.’”17 “The principal consideration . . . is ‘whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.’”18
As previously explained, the Commonwealth’s motion to intervene has been timely filed and addresses the same legal question (whether the January 27 Executive Order is constitutional) and involves similar facts (the status of individuals who have the legal right to be in the United States but are being denied admission or detained). The Commonwealth’s motion to intervene comes on the second business day after plaintiffs’ petition was filed. Consequently, no party will be prejudiced nor will the case be delayed.
CONCLUSION For the reasons stated, the Commonwealth’s motion to intervene as a plaintiff should be granted.
Respectfully submitted, COMMONWEALTH OF VIRGINIA,

By:

/s/

Stuart A. Raphael (VSB No. 30380)

Solicitor General

Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219

16 United States v. North Carolina, No. 1:16CV425, 2016 U.S. Dist. LEXIS 174103, at *9 (M.D.N.C. Dec. 16, 2016). 17 Feller v. Brock, 802 F.2d 722, 729 (4th Cir. 1986). 18 U.S. Postal Serv. v. Brennan, 579 F.2d 188, 191 (2d Cir. 1978).
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(804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us Mark R. Herring Attorney General of Virginia Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us Matthew R. McGuire (VSB No. 84194) Assistant Attorney General mmcguire@oag.state.va.us Counsel for Commonwealth of Virginia
CERTIFICATE OF SERVICE I hereby certify that on January 31, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael
8

 
 Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 1 of 9 PageID# 103

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al.,

)

)

Petitioners,

)

)

v.

)

)

DONALD TRUMP, President of the United

)

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

BRIEF IN SUPPORT OF THE COMMONWEALTH OF VIRGINIA’S MOTION FOR THE ISSUANCE OF A RULE TO SHOW CAUSE

Mark R. Herring Attorney General of Virginia
Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us
Matthew R. McGuire (VSB No. 84194) Assistant Attorney General mmcguire@oag.state.va.us

Stuart A. Raphael (VSB No. 30380) Solicitor General
Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us
Counsel for Commonwealth of Virginia

February 1, 2017

Case 1:17-cv-00116-LMB-TCB Document 19 Filed 02/01/17 Page 2 of 9 PageID# 104
The Commonwealth of Virginia respectfully requests the issuance of a rule to show cause why respondents should not be held in contempt of this Court’s temporary restraining order (TRO) entered on the evening of January 28, 2017. Contemporary news reports and first-hand accounts indicate that officials of respondent Customs and Border Protection (CBP) did not comply with the Court’s directive in paragraph (a) that “respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport.” Moreover, because such access was not provided and respondents have not disclosed, despite request, whether any such persons were removed from the United States after they knew of the TRO, it cannot be determined whether respondents complied with the prohibition on such removal in paragraph (b). The Commonwealth has attempted since Sunday, January 29, to obtain that information, but respondents have not answered. Under these circumstances, the Court should require that respondents demonstrate their compliance with the TRO and show cause why they are not in contempt.
STATEMENT OF FACTS On the afternoon of Friday, January 27, 2017, President Trump issued an Executive Order entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” (Dkt. 7-1.) Section 3(c) of the Executive Order, among other things, suspends for 90 days entry of all immigrants and nonimmigrants from seven majority-Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.1 Section 3(e) and (f) contemplate expanding the list of banned countries based on future recommendations by the Secretary of Homeland Security. Section 3(g) provides that “the Secretaries of State and Homeland Security may, on a case-by-
1 The order exempts persons 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.
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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.” The Executive Order restricts entry by immigrants from the banned countries who have lawful permanent residence (“green card”) status in the United States, as well as nonimmigrants traveling on student or work visas (e.g., B-1, H-1B, L-1, O, F-1, F-2, J-1), and their family members traveling on authorized visas (e.g., B-2, J-2, F-2).
Because the Executive Order was issued on a Friday afternoon without prior notice, numerous persons from the seven banned majority-Muslim countries had already commenced their travel to the United States in reliance on their U.S. green card or a valid student or work visa, unaware of the Executive Order. Beginning Friday evening and continuing over the weekend, hundreds of people appeared at international airports throughout the United States, expecting the arrival of their friends and loved ones, only to discover that those arriving passengers were being detained incommunicado by CBP. This led to spontaneous protests and demonstrations at airports throughout the United States by persons demanding that the detainees be allowed access to the many lawyers who had also gathered at the airports to provide pro bono legal assistance to the detainees and their relatives.2
Petitioners in this case filed their complaint on the evening of Saturday, January 28, on behalf of two travelers from Yemen and sixty “John Doe” travelers who likewise had arrived with valid credentials but had been detained by CBP at Dulles.
2 E.g., Protests Erupt at Airports Following Trump Travel Ban, N.Y. Times (Jan. 29, 2017, 2:12 A.M.), https://goo.gl/pKOHoR; Elise Viebeck and Michael Laris, Hundreds of lawyers descend on airports to offer free help after Trump’s executive order, The Washington Post (Jan. 29, 2017), https://goo.gl/AiGZJ3; Betsy Woodruff, Trump’s Border Patrol Defies Judge, U.S. Senator at Dulles Airport as His First Constitutional Crisis Unfolds, The Daily Beast (Jan. 29, 2017, 8:44 a.m.), https://goo.gl/unbtlN.
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At approximately 9:30 p.m., this Court issued the TRO ordering “that: a) respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport; [and] b) respondents are forbidden from removing petitioners—lawful permanent residents at Dulles International Airport—for a period of 7 days from the issuance of this Order.” (Dkt. 3.) Shortly before that, the United States District Court for the Eastern District of New York issued a nationwide TRO prohibiting CBP from removing green card and visa holders.3
Upon information and belief, CBP officials received a copy of both orders through multiple channels.
Later that evening, however, reports emerged from various sources that none of the detainees was being permitted access to any of the lawyers gathered at Dulles to assist them, in spite of the TRO.4 At approximately 11:45 p.m., Senator Corey Booker arrived on the scene and personally attempted to intercede with CBP officials, including presenting them with another copy of the TRO. Booker reported that he was rebuffed: CBP “told me nothing, and it was unacceptable . . . . I believe it’s a Constitutional crisis, where the executive branch is not abiding by the law.”5
On Sunday, January 29, at least five other members of Congress appeared at Dulles to attempt to resolve the crisis and ensure compliance with the TRO: Representatives Robert C. “Bobby” Scott (Va-3), Don Beyer (Va-8), Gerry Connolly (Va-11), Jamie Raskin (Md-8), and
3 Temporary Restraining Order, Darweesh v. Trump, No. 1:17-cv-480 (E.D.N.Y. Jan. 28, 2017), ECF No. 8. 4 Woodruff, supra note 2. 5 Id.
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John Delaney (Md-6).6 Congressman Beyer’s declaration describing the events is included with this filing. He specifically went to the airport “in response to reports that CBP officials enforcing the Executive Order were detaining travelers and, contrary to the TRO, were not permitting them access to lawyers.”7 He spent more than four hours at Dulles (from 1 p.m. to 5:30 p.m.) and describes the many people he saw, awaiting the arrival of their friends and family members, as being “anxious, grief-stricken, and confused.”8
Congressman Beyer recounts his unsuccessful efforts to find even one detainee who had been allowed access to counsel:
Attorney after attorney complained to me that CBP would not allow them access to the holding rooms where travelers may have been detained. To my knowledge, not a single attorney was permitted access to any detained traveler. My congressional colleagues and I were also denied access to detainees.9 He goes on to describe how CBP officials refused not only to meet with members of Congress but to provide any assurance that they were complying with the TRO.10 Congressman Beyer “concluded (and characterized to others) that CBP’s continued enforcement of the Executive Order amounted to a constitutional crisis: four members of Congress asked CBP officials to enforce a federal court order, and we were all turned away.”11 CBP’s apparent violation of the TRO is reflected in one instance described by
6 Local Congressmen Demanded to Speak with Customs and Border Protection at Dulles, Were Refused, DCist (Jan. 29, 2017 2:43 p.m.), http://dcist.com/2017/01/customs_and_border_protection_still.php 7 Beyer Decl. ¶ 5. 8 Id. ¶ 6. 9 Id. ¶ 7. 10 Id. ¶ 8. 11 Id. ¶ 9.
4

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Congressman Beyer. A detainee from Sudan with a valid green card was eventually released after the congressmen’s insistence upon compliance with the TRO. Congressman Beyer recounts that “[t]he deputy police chief who was our intermediary with CBP explained that CBP had decided to release her and so no lawyer was necessary.”12 Such reports are particularly disturbing in light of the Aziz petitioners’ allegations in the Amended Complaint that they were removed from the United States and coerced into signing documents that petitioners believe waived their visa rights. Despite those disturbing reports, however, respondents have publicly insisted that “[u]pon issuance of the court orders yesterday [Saturday], U.S. Customs and Border Protection (CBP) immediately began taking steps to comply with the orders,” and that “[w]e are and will remain in compliance with judicial orders.”13
The Commonwealth of Virginia has independently attempted to determine which of its residents have been detained or removed from the United States, and whether respondents have complied with the access-to-counsel requirements of the TRO. On Saturday afternoon, the Governor and Attorney General of Virginia both visited Dulles and witnessed firsthand the plight of those awaiting the release of their friends and family members. On the evening of Sunday, January 31, 2017, the Attorney General of Virginia sent a letter to respondents, delivering it by email from the State Solicitor, at 8:55 p.m., to respondent Wayne Biondi and also to Dana Boente, U.S. Attorney for the Eastern District of Virginia (and, as of the evening of January 30, 2017, the Acting Attorney General). (Ex. 1.) The Attorney General sought an accounting of the number of Virginia residents detained and removed, an explanation of why respondents appear to
12 Id. ¶ 10. 13 DHS Statement On Compliance With Court Orders And The President’s Executive Order (DHS Jan. 29, 2017), https://goo.gl/QEUC7R.
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have disobeyed the TRO, and the identities of any Virginia residents remaining in custody. Attorney General Herring requested a response “as soon as practicable, but by no later
than February 1.” As of the filing of this motion, no response has been received. THE COURT SHOULD ISSUE A RULE TO SHOW CAUSE
This Court’s temporary restraining order is an injunction that is enforceable by contempt. Fed. R. Civ. P. 70(e). Respondent Department of Homeland Security does not assert that it was not bound by the TRO. To the contrary, it claims that respondents “are and will remain in compliance with the judicial orders.”14 But that conclusory statement is refuted by the public reporting of events on the ground at Dulles on Saturday evening and Sunday, as well as by Congressman Beyer’s first-hand account.
Moreover, the Commonwealth has sought unsuccessfully to determine if respondents have respected the rights of its Virginia residents, including abiding by the injunction against removing persons from the United States after the TRO was issued and providing access to counsel for those being held.
Because respondents have failed without explanation to answer these eminently reasonable questions by members of Congress and the Attorney General of Virginia, it is appropriate for this Court to require respondents to demonstrate their compliance. Respondents should be required to file a written accounting of their compliance efforts by February 7. They should be required to submit sworn statements addressing, at a minimum: (1) the time on January 28, 2017 that they received actual notice of the TRO in this case and in Darweesh; (2) the number of air passengers on January 27, 28, and 29 arriving at Dulles International Airport with lawful permanent residence status who were removed from the United States, both before and 14 DHS Statement, supra note 13.
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after receipt of actual notice of the TRO; (3) whether any such arrivals were denied prompt access to counsel in light of reports that lawyers were refused such access and there appear to be no reported cases of any such arriving passenger being granted such access; and (4) the name and title of all government officials, if any, who instructed CBP personnel not to comply with the TRO.
It should go without saying that compliance with a court order is fundamental to the rule of law. As the Supreme Court and this Court have made clear:
We begin with the basic proposition that all orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.15 Because respondents’ conduct and refusal to account for their actions last weekend suggests disobedience of this Court’s TRO, the Court should require a written accounting of how respondents actually complied. Given that the access-to-counsel requirement in the TRO is continuing, it is essential to determine as quickly as possible that respondents have complied and are complying.
15 Maness v. Meyers, 419 U.S. 449, 458 (1975); United States v. Al-Arian, No. 1:08cr131, 2008 WL 3843464, at *3 (E.D. Va. Aug. 14, 2008) (Brinkema, J.) (quoting Maness).
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CONCLUSION

The Court should issue a rule to show cause in the form of the attached proposed order.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA,

By:

/s/

Stuart A. Raphael (VSB No. 30380)

Solicitor General

Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us

Mark R. Herring Attorney General of Virginia

Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us

Matthew R. McGuire (VSB No. 84194) Assistant Attorney General mmcguire@oag.state.va.us

Counsel for Commonwealth of Virginia

CERTIFICATE OF SERVICE I certify that on February 1, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael

8

 
 Case 1:17-cv-00116-LMB-TCB Document 22 Filed 02/01/17 Page 1 of 12 PageID# 122

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)

Petitioners,

)

)

COMMONWEALTH OF VIRGINIA,

)

)

Intervenor-Petitioner,

)

)

v.

)

)

DONALD TRUMP, President of the United )

States; U.S. DEPARTMENT OF

)

HOMELAND SECURITY; U.S. CUSTOM )

AND BORDER PROTECTION; JOHN

)

KELLY, Secretary of DHS; KEVIN K.

)

MCALEENAN, Acting Commissioner of )

CBP; and WAYNE BIONDI, Customs and )

Border Protection (CBP) Port Director of the )

Area Port of Washington, Dulles.

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

PROPOSED COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF 1. The Commonwealth of Virginia seeks declaratory and injunctive relief against President Donald J. Trump and the other named Respondents for violations of the Establishment Clause of the First Amendment, the Due Process Clause of the Fifth Amendment, the Equal Protection Clause of the Fifth Amendment, and the Immigration and Nationality Act. 2. On January 27, 2017, President of the United States Donald J. Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive Order”). 3. Individuals from Iran, Iraq, Syria, Sudan, Libya, Yemen, and Somalia who are
1

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legal permanent residents or who were issued valid student, work, or spousal visas (e.g., B-1, B2, H-1B, L-1, O, F-1, F-2, J-1, J-2) entitling them to be in the United States before the issuance of the Executive Order have been and will continue to be denied entry to the United States based solely on the Executive Order.
4. The actual underlying purpose of the Executive Order is to effectuate a “Muslim ban” that the President promised as a candidate for office and to prioritize the admission of persons of the Christian faith as opposed to persons of the Muslim faith.
5. By arbitrarily banning persons from Muslim-majority countries, the Executive Order violates numerous constitutional provisions, subjecting Virginia and its residents to irreparable harm.
JURISDICTION AND VENUE 6. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1346, 1361. This Court has remedial authority under 28 U.S.C. § 2201 et seq. 7. Venue is proper in this district because a substantial part of the events or omissions occurred here. 28 U.S.C. § 1391(b).
PARTIES 8. Petitioner-Intervenor is the Commonwealth of Virginia. 9. Petitioner Tareq Aqel Mohammed Aziz is a 21-year-old citizen and national of Yemen, who was granted lawful permanent resident status. 10. Petitioner Ammar Aqel Mohammed Aziz is a 19-year-old citizen and national of Yemen, who was granted lawful permanent resident status. 11. Petitioners JOHN DOES 1-60 are approximately 60 nationals of Syria, Libya, Iran, Iraq, Somalia, Yemen, and Sudan, who are lawful permanent resident or immigrant visa holders, and who were reportedly held against their will at Washington-Dulles International
2

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Airport (Dulles). 12. Respondents are: Donald J. Trump, President of the United States, in his official
capacity; the U.S. Department of Homeland Security, a cabinet department of the United States government; John Kelly, the Secretary of the Department of Homeland Security, in his official capacity; the U.S. Customs and Border Protection, an agency within the Department of Homeland Security; Kevin K. McAleenan, Acting Commissioner of Customs and Border Protection, in his official capacity; and Wayne Biondi, Customs and Border Protection Port Director of the Area Port of Washington Dulles, in his official capacity.
FACTUAL ALLEGATIONS A. The Executive Order and its implementation. 13. On January 27, around 4:30 p.m., President Trump signed the Executive Order. 14. The stated purpose of the Executive Order is to ensure that the United States is “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.” 15. The Executive Order asserts that “[n]umerous 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.” 16. The visa-issuance process was modified to be more stringent after the September 11, 2001 terrorist attacks. 17. Section 3(c) of the Executive Order bans for 90 days certain classes of individuals from entering or reentering the United States based on their national origin. 18. Individuals from the following countries are banned from entering the United States unless they are a U.S. citizen or possess a diplomatic visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, and G-4 visa:
3

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Iraq, Iran, Syria, Libya, Somalia, Yemen, and Sudan. 19. Iraq, Iran, Syria, Libya, Somalia, Yemen, and Sudan are majority-Muslim
countries. 20. No person from Iraq, Iran, Syria, Libya, Somalia, Yemen, or Sudan in the United
States as a lawful permanent resident or under a work, student, or spousal visa has been implicated in a terrorist plot in the United States.
21. After the Executive Order was signed, numerous lawful permanent residents, workers with valid employment visas, students with valid student visas, spouses with valid spousal visas were detained at airports across the United States and the world.
22. Petitioners were detained at Dulles International Airport (“Dulles”) in Dulles, Virginia.
23. It is believed that at least 50 to 60 other lawful permanent residents were likewise detained at Dulles, but the exact number is unknown because Respondents declined to release information about the number of person being held at Dulles.
24. Upon information and belief, residents who are lawful permanent residents or who were issued valid student, work, or spousal visas were held against their will at Dulles.
25. On January 28, this Court issued a temporary restraining order (TRO). (ECF No. 3.)
26. The TRO ordered that (1) “respondents shall permit lawyers access to all legal permanent residents being detained at Dulles,” and (2) “respondents are forbidden from removing petitioners . . . for a period of 7 days.”
27. Upon information and belief, none of the travelers who were detained against their will at Dulles on January 29 was permitted access to lawyers who were standing by on
4

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scene, contrary to the TRO. 28. The inability of lawyers to meet with individuals held at Dulles hindered the
Commonwealth’s ability to determine how many Virginia residents were detained and released or removed from the United States despite being a lawful permanent resident or possessing a valid visa.
29. On January 29, Virginia Senators Mark R. Warner and Tim Kaine formally requested additional information about the Executive Order from Respondent Kelly.
30. Senator Warner and Senator Kaine believed that “[t]he broadness of the [Executive Order] suggests this is a policy targeting Muslims, an approach that national security experts have testified could harm, not help, our national security interests.”
31. On January 29, Governor of Virginia Terence R. McAuliffe directed his administration to send a letter to the White House Director of Intergovernmental Affairs.
32. On January 29, Attorney General of Virginia Mark R. Herring formally requested additional information about the detention of Virginia residents from the United States, including from U.S. Attorney (now Acting Attorney General) Dana Boente, Respondent John Kelly, Respondent Wayne Biondi, and Respondent Kevin McAleenan. (ECF No. 19-1.)
B. The impact of the Executive Order on Virginians who are lawful permanent residents or who are authorized to reside here under validly issued visas.
33. The Executive Order has had a direct and substantial impact on Virginia and its public universities, faculty, and students who are foreign-born.
34. Many foreign students go on to be significant figures in Virginia and in their communities, such as Ángel Cabrera, the president of George Mason University, the largest public university in Virginia.
35. Virginia Commonwealth University has a satellite campus in Qatar that hosts
5

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exchange programs with students in the United States. 36. Virginia has 14 publicly supported universities and colleges and 23 community
colleges. 37. On information and belief, more than 350 students at Virginia Commonwealth
University, Virginia Tech, George Mason University, the University of Virginia, and William & Mary are directly and adversely affected by the Executive Order.
38. These students will be unable to travel abroad for academic or personal reasons as permitted by their visas because the Executive Order will prevent them from reentering the United States.
39. At least two students were known to be abroad when the Executive Order was issued and now cannot enter the United States.
40. An Iranian doctoral student at a Virginia university had been approved and cleared for a visa to return to the United States to defend his dissertation, but was blocked from doing so by the Executive Order.
41. A Libyan undergraduate at a Virginia university who was traveling for family reasons was prevented from boarding a plane from Istanbul, Turkey back to the United States and has been unable to return.
42. The Executive Order poses a significant chilling effect on other out-of-country students who fear traveling abroad due to the possibility that they will be denied reentry.
43. The Executive Order directly harms Virginia universities who will not be able to attract academic talent that enriches their campuses and advances their educational mission.
44. For example, foreign-born faculty teaching at Virginia universities under a valid visa typically have specialized expertise that cannot be easily replaced.
6

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45. The harm to faculty and the teaching mission of Virginia universities is already being felt where three foreign scholars from a country banned by the Executive Order abandoned their plans to visit the university, despite having valid J-1 visas and having visited the United States previously.
46. Another university has had two visiting scholars with valid J-1 visas cancel their plans to be at the school for the spring semester.
47. The Executive Order financially harms Virginia universities who depend on tuition dollars from out-of-state and out-of-country students.
48. Two Sudanese applicants to a Virginia university have abandoned their plans to enroll in foreign language programs at the university, and a number of Iranian students have withdrawn applications to various university engineering programs.
49. The amount of tuition lost due to the Executive Order is not quantifiable because the order discourages out-of-country students from applying to Virginia universities in the first instance.
50. The Executive Order jeopardizes grants and contracts that fund research at Virginia’s universities.
51. The inability of a number of graduate students and faculty to travel abroad will cause a gradual decrease in research collaborations with other universities and groups as well as funding.
52. The Executive Order also impairs Virginia’s economy by restricting the travel of foreign students and foreign workers to Virginia, and impairing their ability to reside in Virginia, depriving the Commonwealth of their talents and contributions as residents and taxpayers, and withholding their labor from Virginia’s businesses.
7

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CLAIMS FOR RELIEF A. Claim 1: Violation of the Due Process Clause of the Fifth Amendment. 53. The Commonwealth re-alleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this complaint. 54. The Due Process Clause of the Fifth Amendment prohibits the federal government from depriving individuals of their liberty interests without due process of law. 55. Lawful permanent residents and individuals with validly issued visas have a legally protected right in not having their status revoked arbitrarily based on their national origin. 56. Section 3 of the Executive Order violates the legally protected rights of lawful permanent residents and individuals with valid visas by eliminating their status without according them any process. 57. When Congress has granted statutory rights and authorized procedures applicable to arriving and present immigrants, due process rights attach to those statutory rights. 58. Section 3 of the Executive Order conflicts with the statutory rights and procedures provided by Congress. 59. In issuing and implementing the Executive Order, Respondents have violated the procedural due process guarantees of the Fifth Amendment. 60. Respondents’ violation of the Due Process Clause is causing ongoing and irreparable harm to Virginia residents. B. Claim 2: Violation of the Establishment Clause of the First Amendment. 61. The Commonwealth re-alleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this complaint. 62. The Establishment Clause of the First Amendment prohibits the federal government from officially preferring one religion over another.
8

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63. In light of the numerous statements given by the President and his advisors concerning their intent surrounding the purpose of the Executive Order, and their goals in its enforcement, Section 3(c) is intended to fulfill the President’s pledge as a candidate to implement a moratorium on Muslim travel to the United States, and to disfavor Islam and to favor Christianity.
64. Respondents’ actions in issuing and enforcing the Executive Order violate the Establishment Clause of the First Amendment.
65. Respondents’ violation of the Establishment Clause is causing ongoing and irreparable harm to Virginia residents.
C. Claim 3: Violation of the Equal Protection Clause of the Fifth Amendment. 66. The Commonwealth re-alleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this complaint. 67. The Due Process Clause of the Fifth Amendment prohibits the federal government from denying equal protection of the laws. 68. The Executive Order targets individuals based on their national origin without justification. 69. The Executive Order was motivated by animus and a desire to harm Muslims. 70. No substantial federal interest justifies the discriminatory terms and blanket application of the Executive Order. 71. Respondents have violated the equal protection guarantee of the Fifth Amendment based on their issuance and enforcement of Section 3 of the Executive Order. 72. Respondents’ violation of the equal protection guarantee of the Fifth Amendment is causing ongoing and irreparable harm to Virginia residents.
9

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D. Claim 4: Violation of the Immigration and Nationality Act. 73. The Commonwealth re-alleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this complaint. 74. The Immigration and Nationality Act and its implementing regulations entitle lawful permanent residents to reenter the United States without need of a waiver and entitles individuals possessing a valid visa issued by a consular official to approach the border and seek entry. See, e.g., 8 U.S.C. §§ 1151, 1201, 1225, and accompanying regulations. 75. Respondents are violating the Immigration and Nationality Act by insisting that lawful permanent residents require a waiver of Section 3(c) of the Executive Order to enter the United States and by denying individuals with valid visas the right to board a plane bound for the United States such that they may present themselves at the border and seek entry. E. Claim 5: Violation of the Religious Freedom Restoration Act. 76. The Commonwealth re-alleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this complaint. 77. The Religious Freedom Restoration Act (RFRA) prohibits the federal government from substantially burdening the exercise of religion unless it is the least restrictive means of furthering a compelling governmental interest. See 42 U.S.C. § 2000bb et seq. 78. Section 3 of the Executive Order places a substantial burden on Muslims’ ability to practice their religion by, among other things, restricting their ability to engage in religious travel abroad and, in the case of residents traveling abroad, to return freely to the United States to attend services in their own faith communities. Because the Executive Order does not further a compelling governmental interest by the least restrictive means, Respondents’ enforcement of the Executive Order violates RFRA.
10

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PRAYER FOR RELIEF The Commonwealth respectfully requests the following relief from the Court: A. A declaratory judgment that Section 3(c) of the Executive Order violates the Establishment Clause of the First Amendment and a preliminary and permanent injunction against its enforcement. B. A declaratory judgment that Section 3(c) of the Executive Order violates the Due Process Clause of the Fifth Amendment and a preliminary and permanent injunction against its enforcement. C. A declaratory judgment that Section 3(c) of the Executive Order violates the equal protection guarantee of the Fifth Amendment and a preliminary and permanent injunction against its enforcement. D. A declaratory judgment that Section 3(c) of the Executive Order is unlawful under the Immigration and Nationality Act and a preliminary and permanent injunction against its enforcement. E. A declaratory judgment and injunction that Section 3(c) of the Executive Order violates RFRA and a preliminary and permanent injunction against its enforcement. F. An award of reasonable costs and attorney’s fees to the extent permitted by law; and G. All other equitable relief to which the Commonwealth may show itself to be entitled.

Respectfully submitted, COMMONWEALTH OF VIRGINIA,

By:

/s/

11

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Stuart A. Raphael (VSB No. 30380) Solicitor General Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us
Mark R. Herring Attorney General of Virginia Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us Matthew R. McGuire (VSB No. 84194). Assistant Attorney General mmcguire@oag.state.va.us Counsel for the Commonwealth of Virginia
CERTIFICATE OF SERVICE I hereby certify that on February 1, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael
12

 
 Case 1:17-cv-00116-LMB-TCB Document 23 Filed 02/01/17 Page 1 of 2 PageID# 134

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)

Petitioners,

)

)

v.

)

)

DONALD TRUMP, President of the United )

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

THE COMMONWEALTH OF VIRGINIA’S MOTION FOR A PRELIMINARY INJUNCTION

The Commonwealth of Virginia, by counsel and pursuant to Federal Rule of Civil

Procedure 65, and for the reasons stated in a brief that will be filed by no later than February 3,

2017, in accordance with the briefing schedule agreed to by the existing parties, moves this

Court to issue a preliminary injunction enjoining enforcement of Section 3(c) of the Executive

Order at issue in this case.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA,

By:

/s/

Stuart A. Raphael (VSB No. 30380)

Solicitor General

Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us

1

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Mark R. Herring Attorney General of Virginia Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us Matthew R. McGuire (VSB No. 84194) Assistant Attorney General mmcguire@oag.state.va.us Counsel for Commonwealth of Virginia
CERTIFICATE OF SERVICE I certify that on February 1, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael
2

 
 Case 1:17-cv-00116-LMB-TCB Document 25 Filed 02/01/17 Page 1 of 3 PageID# 138

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

TAREQ AQEL MOHAMMED AZIZ,

)

et al.,

)

)

Petitioners,

)

)

vs.

)

)

DONALD TRUMP,

)

President of the United States, et al., )

)

Respondents.

)

_________________________________ )

Civil Action No. 1:17cv116

JOINT REQUEST TO HOLD CLAIMS IN ABEYANCE

The undersigned parties hereby jointly request that the Court hold Petitioners’ claims in

this case in abeyance. The parties, by and through undersigned counsel, have a signed agreement

to resolve Petitioners claims against Defendants. The parties require time to execute the

particulars of the agreement, which may take several days to fully implement. The parties will

promptly and without delay inform the Court when the agreement is fully executed.

Accordingly, in order to permit the undersigned parties to focus their efforts on resolving

this case without further litigation, the undersigned parties respectfully request that this Court

place Petitioners’ claims in this case in abeyance.

Respectfully submitted,

__________/s/__________________ Simon Y. Sandoval-Moshenberg (VA 77110) Mary Bauer (VA 31388) Rebecca Wolozin (VA 89690) Elaine Poon (pro hac vice) LEGAL AID JUSTICE CENTER 6066 Leesburg Pike #520 Falls Church, VA 22041

DANA J. BOENTE United States Attorney
JOYCE BRANDA Acting Assistant Attorney General Civil Division

Case 1:17-cv-00116-LMB-TCB Document 25 Filed 02/01/17 Page 2 of 3 PageID# 139

(703) 720-5605 simon@justice4all.org mary@justice4all.org becky@justice4all.org elaine@justice4all.org
Andrew J. Pincus (pro hac vice) Paul W. Hughes (pro hac vice) MAYER BROWN LLP 1999 K Street, N.W. Washington, D.C. 20006 (202) 263-2000 apincus@mayerbrown.com phughes@mayerbrown.com
DATE: February 1, 2017

WILLIAM PEACHEY Director Civil Division, Office of Immigration Litigation

By:

/s/________________

DENNIS C. BARGHAAN, JR.

Assistant U.S. Attorney

2100 Jamieson Avenue

Alexandria, Virginia 22314

Telephone: (703) 299-3891

Fax:

(703) 299-3983

Email: dennis.barghaan@usdoj.gov

EREZ REUVENI

Senior Litigation Counsel

Civil Division, Office of Immigration

Litigation

P.O. Box 868

Ben Franklin Station

Washington, D.C. 20044

Telephone: (202) 307-4293

Fax:

(202) 616-8962

Email: erez.r.reuveni@usdoj.gov

ATTORNEYS FOR RESPONDENTS

Case 1:17-cv-00116-LMB-TCB Document 25 Filed 02/01/17 Page 3 of 3 PageID# 140

CERTIFICATE OF SERVICE
I hereby certify that on this date, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will transmit a true and correct copy of the same to the following:
Simon Sandoval Moshenburg Legal Aid Justice Center
6066 Leesburg Pike, Suite 520 Falls Church, Virginia 22041 Email: Simon@justice4all.org

Date: February 1, 2017

/s/________________

DENNIS C. BARGHAAN, JR.

Assistant U.S. Attorney

2100 Jamieson Avenue

Alexandria, Virginia 22314

Telephone: (703) 299-3891

Fax:

(703) 299-3983

Email: dennis.barghaan@usdoj.gov

ATTORNEYS FOR RESPONDENTS

 
 Case 1:17-cv-00116-LMB-TCB Document 26 Filed 02/02/17 Page 1 of 6 PageID# 141

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al.,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOM AND BORDER PROTECTION; JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WAYNE BIONDI, Customs and Border Protection (CBP) Port Director of the Area Port of Washington, Dulles.
Respondents.

)

)

)

)

)

) )

Civil Action No. 1:17-cv-00116

)

)

)

)

)

)

)

)

)

)

)

)

OSMAN NASRELDIN AND SAHAR KAMAL AHMED FADUL’S MOTION TO INTERVENE
Osman Nasreldin and Sahar Kamal Ahmed Fadul, by their undersigned counsel, Timothy J. Heaphy, move to intervene as plaintiffs in the above-styled action, pursuant to Rule 24 of the Federal Rules of Civil Procedure. Like the named petitioner-plaintiffs in this case, Ms. Fadul was unlawfully detained and removed on or around January 28, 2017 by United States Customs and Border Protection (CBP) agents at Washington-Dulles International Airport, operating under the recent Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” signed by President Donald J. Trump on January 27, 2017.
Ms. Fadul, whose fiancé, Mr. Nasreldin, is a United States citizen and a Colorado resident, was traveling to the United States from Addis Ababa, Ethiopia on a valid K-1 visa.

Case 1:17-cv-00116-LMB-TCB Document 26 Filed 02/02/17 Page 2 of 6 PageID# 142
After arriving at Washington-Dulles, Ms. Falud was stopped by CBP agents, and forced to surrender her visa and accompanying immigration documentation. Ms. Falud was then unlawfully detained at Washington-Dulles, denied access to either a telephone or an interpreter, and ultimately informed that her visa was “cancelled.” CBP agents then compelled Ms. Falud to sign a form that rescinded her visa application, and summarily deposited her on the next available flight to Addis Ababa.
Based on the significant factual similarity between these events and the allegations made by the petitioner-plaintiffs, as well as the common claims to be asserted by Mr. Nasreldin and Ms. Fadul (collectively, the “Intervenors”) and the petitioner-plaintiffs, we respectfully move the Court to grant the instant motion to intervene in this case as a matter of right under Rule 24(a).1 More specifically, intervention of right is appropriate because (1) the Intervenors have a significant protectable interest in this case, (2) failure to allow intervention will impede the ability of the Intervenors to protect that interest, and (3) no existing party adequately represents their interests.
The Intervenors have a significant protectable interest in this case that supports intervention of right under Rule 24(a). Like the petitioner-plaintiffs in this case, the Intervenors suffered concrete harm, giving rise to various causes of action against the respondents, including, inter alia, claims under the First and Fifth Amendments to the United States Constitution, the Immigration and Nationality Act, the Administrative Procedure Act, and the Religious Freedom

1

Rule 24(a) states, in pertinent part, that “[o]n timely motion, the court must permit

anyone to intervene who . . . (2) claims an interest relating to the … transaction that is the subject

of the action, 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 adequately represent

that interest.” Fed. R. Civ. P. 24(a).

-2-

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Restoration Act. Each of these claims arise from the issuance and implementation of the Executive Order.
Failure to grant this motion will also impede the ability of the Intervenors to vindicate their protectable interest. In the course of adjudicating this dispute, the Court is likely to determine the legality of the Executive Order, and evaluate whether the implementation of the Executive Order violated the petitioner-plaintiffs’ rights. These findings would clearly affect the ability of the Intervenors to pursue their claims. Finally, no existing party in this case adequately represents the interests of the Intervenors. While the named petitioner-plaintiffs and Ms. Fadul were both unjustly ensnared by the Executive Order, Ms. Fadul traveled to the United States on a K-1 “fiancé” visa, while the named petitioner-plaintiffs traveled to the United States on an “immigrant” visa, based on their father’s United States citizenship. Additionally, the harm suffered by Mr. Nasreldin, as Ms. Fadul’s fiancé, is entirely distinct from any harm suffered by the petitioner-plaintiffs. Therefore, this Court should allow Mr. Nasreldin and Ms. Fadul to intervene in this case, pursuant to Rule 24(a).
In the alternative, Mr. Nasreldin and Ms. Fadul seek permissive intervention under Rule 24(b)(1).2 Federal courts may allow “anyone” to intervene in a civil action who has a claim sharing a “common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Here, the question of whether the Executive Order was lawful, and whether various agencies of the Executive Branch violated the constitutional and statutory rights of the petitioner-plaintiffs in this case, goes to the heart of the Intervenors’ claims, and clearly falls within the language of Rule 24(b). Like the petitioner-plaintiffs, Ms. Fadul traveled to the United States after receiving a valid visa from a

2

Rule 24(b) states, in pertinent part, that “(1) … the court may permit anyone to intervene

who . . . (B) has a claim or defense that shares with the main action a common question of law or

fact.” Fed. R. Civ. P. 24(b). Rule 24(b)(3) requires the court to consider whether “the

intervention will unduly delay or prejudice the adjudication of the original parties’ rights.”

-3-

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United States embassy. Before receiving her visa, she and Mr. Nasreldin complied in good faith with United States immigration procedures, and were subject to extensive vetting. Ms. Fadul departed the Sudan, and then Addis Ababa, anticipating a reunion with her fiancé. Instead, under color of the Executive Order, Ms. Fadul was detained, coerced, and shipped back to Ethiopia, in clear violation of the United States Constitution and federal law. If this Court adjudicates the petitioner-plaintiffs’ claims, the Court’s ruling will inevitably affect Ms. Fadul’s ability to obtain relief for these unconscionable actions. Further, there is no evidence that permitting intervention under these circumstances will either delay the adjudication of this case, or prejudice any of the current parties. Thus, the Court should permit intervention under Rule 24(b).
For the reasons set forth here and in the accompanying memorandum of law in support of intervention, the Intervenors respectfully request that the Court grant the motion to intervene. We have attached a draft Order to that effect. Counsel for the Intervenors has conferred with counsel for the petitioner-plaintiffs, and counsel for the Commonwealth of Virginia, which has also moved to intervene in this action. Both petitioner-plaintiffs and the Commonwealth of Virginia have consented to intervention. While counsel has also attempted to ascertain the position of the defendants on the instant Motion to Intervene, we have not received information regarding the defendants’ position on the motion.
The Intervenors also request a hearing on this motion to intervene. The Intervenors request leave of the Court to appear at the hearing on the Commonwealth of Virginia’s Motion to Intervene, scheduled for Friday, February 3, 2017. The Commonwealth of Virginia does not oppose this request.
-4-

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Dated: February 2, 2017

Respectfully submitted,
/s/ Timothy J. Heaphy VA Bar. No. 68912 Hunton & Williams LLP 2200 Pennsylvania Ave., NW Washington, DC 20037 P: (202) 778-2239 F: (202) 828-3760 theaphy@hunton.com Counsel for Intervenors

-5-

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CERTIFICATE OF SERVICE I hereby certify that on the February 2, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to all counsel of record.
/s/ Timothy J. Heaphy VA Bar. No. 68912 Hunton & Williams LLP 2200 Pennsylvania Ave., NW Washington, DC 20037 P: (202) 778-2239 F: (202) 828-3760 theaphy@hunton.com Counsel for Intervenors
-6-

 
 Case 1:17-cv-00116-LMB-TCB Document 27 Filed 02/02/17 Page 1 of 12 PageID# 148

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al.,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOM AND BORDER PROTECTION; JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WAYNE BIONDI, Customs and Border Protection (CBP) Port Director of the Area Port of Washington, Dulles.
Respondents.

)

)

)

)

)

) )

Civil Action No. 1:17-cv-00116

)

)

)

)

)

)

)

)

)

)

)

)

BRIEF IN SUPPORT OF OSMAN NASRELDIN AND SAHAR KAMAL AHMED FADUL’S MOTION TO INTERVENE
On January 27, 2017, President Donald J. Trump signed an Executive Order, Protecting the Nation from Foreign Terrorist Entry into the United States (the “Executive Order”). The implementation of the Executive Order immediately led to the violation of the constitutional and statutory rights of numerous individuals, including Osman Nasreldin and Sahar Kamal Ahmed Fadul (collectively, the “Intervenors”). More specifically, on or about January 28, 2017, while traveling from Sudan to the United States on a valid K-1 visa, Ms. Fadul was detained at the Washington-Dulles International Airport, coerced into surrendering her visa, and summarily returned to Addis Ababa, Ethiopia, without so much as the opportunity to contact her fiancé, Mr. Nasreldin, a United States citizen and resident of Colorado.

Case 1:17-cv-00116-LMB-TCB Document 27 Filed 02/02/17 Page 2 of 12 PageID# 149
Because the Intervenors have suffered a cognizable harm at the hands of the Executive
Branch through the operation of the Executive Order, and because this case will determine both
(1) the legality of the Executive Order itself, and (2) whether other individuals affected by the
Executive Order can raise claims under the United States Constitution and various federal
statutes, this Court should allow Mr. Nasreldin and Ms. Fadul to intervene as a matter of right in
this case under Fed. R. Civ. P. 24(a), or, in the alternative, grant permissive intervention under
Fed. R. Civ. P. 24(b).
PROCEDURAL HISTORY
The respondents in this case have used the Executive Order to prevent individuals with
lawful permanent resident status, as well as individuals with lawfully-issued visas, from entering
the United States. The Executive Order states, in pertinent part:
Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. § 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section
2

Case 1:17-cv-00116-LMB-TCB Document 27 Filed 02/02/17 Page 3 of 12 PageID# 150
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). …. (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. After the Executive Order was signed, numerous individuals traveling to the United States on valid visas were detained in airports worldwide. The named petitioner-plaintiffs in this case, for example, were detained at the Washington-Dulles International Airport (“Washington-Dulles”) upon their arrival on January 28, 2017. See Pet. for Writ of Habeas Corpus and Compl. for Declaratory and Injunctive Relief at ¶1, ECF No. 1. That same day, the petitioners filed their writ of habeas corpus and complaint in this Court. See id. The petitioner-plaintiffs alleged that the Executive Order, and the implementation thereof, violated the First and Fifth Amendment to the United States Constitution, the Immigration and Nationality Act, the Administrative Procedure Act, and the Religious Freedom Restoration Act. Id., at ¶36-59. The petitioner-plaintiffs sought a writ of habeas corpus requiring the release of travelers purportedly detained at Washington-Dulles, an injunction commanding the respondents to refrain from detaining any travelers on the basis of the Executive Order, and a declaratory judgment regarding the validity of the Executive Order. Id. at 14. Also on January 28, 2017, the petitioners filed their Emergency Application for a Temporary Restraining Order, ECF No. 2, requesting, inter alia, an order forbidding the respondents in this case from removing the petitioner-plaintiffs from the United States for a period of 7 days. Later
3

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that evening, the Court issued a Temporary Restraining Order (“TRO”) ordering that respondents permit lawyers access to all “legal permanent residents being detained at Dulles International Airport,” and forbidding the respondents from “removing petitioners–lawful permanent residents at Dulles International Airport–for a period of 7 days . . . .” TRO at 1, ECF No. 3.1 On January 30, 2017, the petitioner-plaintiffs filed their First Amended Petition for Writ of Habeas Corpus and Class Complaint for Declaratory and Injunctive Relief (“Amended Petition”), wherein the petitioner-plaintiffs informed the court that at least two members of the proposed class, named petitioners Tareq Aqel Mohammed Aziz and Ammar Aqel Mohammed Aziz, had been coerced into signing U.S. Citizenship and Immigration Services Form I-407, “Record of Abandonment of Lawful Permanent Resident Status.” First Amended Pet. for Writ of Habeas Corpus and Class Compl. for Declaratory and Injunctive Relief, at ¶8, ECF No. 7. The Amended Petition then alleged that agents of the Executive Branch had forced the two named petitioners to board a flight to Addis Ababa Bole International Airport, where the petitioners remain. Id. at ¶10.
On January 31, 2017, the Commonwealth of Virginia filed its Motion to Intervene, ECF No. 14. The Commonwealth moved to intervene based on its significant interest in protecting residents from the “ongoing unlawful enforcement” of the Executive Order. Mot. to Intervene at 1, ECF No. 14. A hearing on the motion is set for February 3, 2017.

1

Since this Court issued its TRO, federal district courts in a number of jurisdictions have

issued similar orders, recognizing that petitioners affected by the Executive Order have a

sufficient likelihood of success on the merits of their claims. See, e.g., Order Granting

Emergency Motion for Temporary Restraining Order and/or Preliminary Injunction, Mohammed

v. United States, No. 2:17-cv-00786-AB-PLA (C.D. Ca. Jan. 31, 2017), ECF No. 7; Temporary

Restraining Order, Tootkaboni v. Trump, No. 1:17-cv-10154 (D. Ma. Jan. 29, 2017), ECF No. 6;

Decision and Order, Darweesh, v. Trump, No. 1:17-cv-00480 (E.D.N.Y. Jan. 28, 2017), ECF No.

8; Order Granting Emergency Stay of Removal, John Doe 1 v. Trump, No. 2:17-cv-00126 (W.D.

Wa. Jan. 28, 2017), ECF No. 5.

4

Case 1:17-cv-00116-LMB-TCB Document 27 Filed 02/02/17 Page 5 of 12 PageID# 152

STATEMENT OF FACTS Like the petitioner-plaintiffs in this case, the proposed Intervenors, Mr. Nasreldin and Ms. Fadul, have had their lives turned upside down by the Executive Order.2 Mr. Nasreldin is a United States citizen, whose father, born in the Sudan, was granted asylum by the United States in 1999. In 2011, Mr. Nasreldin traveled to the Sudan to visit relatives. During his trip, he met Ms. Fadul, who works as a microbiologist. Over the next three years, while Mr. Nasreldin worked and attended classes, he maintained contact with Ms. Fadul and made two additional trips to the Sudan to see her. In 2014, Mr. Nasreldin and Ms . Fadul were engaged to be married. The couple made plans for Ms. Fadul to join Mr. Nasreldin in the United States after he completed his studies and began work as a dental hygienist. Meanwhile, Ms. Fadul began the process of applying for a K-1 fiancé visa. On or about October of 2016, after multiple interviews with Department of State personnel at the United States embassy in Khartoum, repeated document submissions, and an extensive vetting process, Ms. Fadul was granted a K-1 visa, and provided with a sealed packet by the Khartoum embassy containing her immigration records. On or about January 1, 2017, Mr. Nasreldin purchased a plane ticket for Ms. Fadul to travel from the Sudan to the United States via Ethiopian Airlines, departing from Addis Ababa Bole International Airport on or about January 27, 2017. When she arrived at Bole International Airport, Ms. Fadul presented her visa to Ethiopian officials, and was permitted to board her flight to Washington-Dulles.

2

All facts contained herein were gathered during an initial conversation with Mr. Nasreldin on February 1,

2017. Additional facts may be forthcoming as more details emerge about the procedures used by the respondents to

administer the Executive Order. At this juncture, undersigned counsel must rely upon the facts as set forth by Mr.

Nasreldin, and will inform the Court promptly of any additional pertinent facts.

5

Case 1:17-cv-00116-LMB-TCB Document 27 Filed 02/02/17 Page 6 of 12 PageID# 153

On or about January 28, 2017, Ms. Fadul’s flight arrived at Washington-Dulles. The United States embassy had had instructed Ms. Fadul to present her visa and sealed packet of documents to United States Customs and Border Protection (CBP) agents upon her arrival. After her admission into the United States, Ms. Fadul was to board a flight from Washington-Dulles to Denver International Airport, where she would be reunited with Mr. Nasreldin.
Unfortunately, these plans were permanently disrupted by the Executive Order. Upon her arrival at Washington-Dulles, Ms. Fadul was detained by CBP agents, who confiscated her visa and immigration documents and transported her to a holding room, where she was told to wait along with numerous other travelers. She had no access to a telephone and was never given the opportunity to contact her fiancé. Notably, Ms. Fadul does not speak English, and no interpreters were provided for the detainees. Eventually, after watching numerous other travelers called to individual meetings with CBP, Ms. Fadul was given the opportunity to speak with an agent. The CBP agent informed Ms. Fadul that her visa had been cancelled, and demanded that she sign a “form” waiving any rights to enter the United States.3 CBP did not provide Ms. Fadul with the opportunity to carefully read the form, or provide a translation of the form. With no knowledge of English, no understanding of the United States legal system, and no awareness of her right to request a removal proceeding, Ms. Fadul believed she had no choice but to sign the form. She was then informed that she would be returned to Addis Ababa immediately by Ethiopian Airlines, and she was placed on a flight that same night. She was also informed that her passport would be held by the airline until she was able to reimburse the airline for the cost of the flight. When Ms. Fadul asked if she could at least contact Mr. Nasreldin to inform him of

3

To date, the undersigned counsel has been unable to determine what immigration form, if any, is used to

memorialize the withdrawal of a valid K-1 visa.

6

Case 1:17-cv-00116-LMB-TCB Document 27 Filed 02/02/17 Page 7 of 12 PageID# 154

her predicament, CBP agents denied her request, and indicated that Mr. Nasreldin would eventually be informed of her whereabouts.4
STANDARD OF REVIEW Federal Rule of Civil Procedure 24 sets forth two methods for intervention in a civil proceeding in federal court. Rule 24(a), “Intervention of Right”, states, in pertinent part, that a federal district court is to permit “anyone” to intervene who “claims an interest relating to the … transaction that is the subject of the action, 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 adequately represent that interest.” Fed. R. Civ. P. 24(a).5 In the Fourth Circuit, a party seeking intervention as of right must show “first, an interest sufficient to merit intervention; second, that without intervention, its interests may be impaired, and third, that the present litigants do not adequately represent its interests.” Cooper Techs., Co. v. Dudas, 247 F.R.D. 510, 514 (E.D. Va. 2007)(quoting Virginia v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976)). Alternatively, the Court may permit intervention where a movant “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). However, “[i]n exercising its discretion, the court must consider whether the intervention will

4

Fortunately, fellow passengers on Ms. Fadul’s return flight to Addis Ababa showed more courtesy,

allowing Ms. Fadul to borrow a cellular telephone and contact Mr. Nasreldin. Mr. Nasreldin spent the majority of

the next twenty-four hours attempting to arrange payment for Ms. Fadul’s return ticket with Ethiopian Airlines.

5

Rule 24(a) also requires that a motion to intervene be “timely.” Fed. R. Civ. P. 24(a). In Gould v. Alleco,

Inc., 883 F.2d 281,(4th Cir. 1989) the Fourth Circuit held that when determining if a motion to intervene was timely,

district courts should “look at how far the suit has progressed, the prejudice which delay might cause other parties,

and the reason for the tardiness in moving to intervene.” Gould, 883 F.2d at 286. Each of these factors weigh in

favor of intervention in this case. The suit is less than a week old, and petitioner-plaintiffs and Intervenor-

Commonwealth of Virginia have consented to intervention. Moreover, the case is still in the pleading stage, and the

Fourth Circuit has held that a motion to intervene is clearly timely if made before initial pleadings between the

original parties. See Scardelli v. Debarr, 265 F.3d 195, 203 (4th Cir. 2001).

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unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).
ARGUMENT A. THE INTERVENORS HAVE A SUFFICIENT PROTECTABLE
INTEREST TO SUPPORT INTERVENTION OF RIGHT Like the petitioner-plaintiffs in this case, the Intervenors were stripped of their rights under the First and Fifth Amendments to the United States Constitution, as well as various federal statutes, including the Immigration and Nationality Act, 8 U.S.C. §§1101, et. seq., the Administrative Procedure Act, 5 U.S.C. §§500, et. seq., and the Religious Freedom Restoration Act, 42 U.S.C. §§2000bb, et. seq. The Intervenors intend to raise these claims, and potentially other claims, against the respondents if intervention is granted. The Intervenors therefore have a strong protectable interest in the outcome of this civil action, sufficient to support intervention of right. Courts in the Eastern District of Virginia have held that for an interest to be “protectable,” it must “bear a close relationship to the dispute between the existing litigants and therefore must be direct, rather than remote or contingent.” Dairy Maid Dairy, Inc. v. United States, 147 F.R.D. 109 (E.D. Va. 1993). Here, there is a direct relationship between the injury alleged by the petitioner-plaintiffs and the Intervenors. Like the named petitioner-plaintiffs, Ms. Fadul traveled to the United States on a valid visa, and she and Mr. Nasreldin were deprived of their constitutional and statutory rights by virtue of the Executive Order. Furthermore, the petitionerplaintiffs assert very broad claims against the United States, claims that necessarily implicate the rights of the Intervenors. This is exactly the type of “direct” relationship contemplated by Rule 24 and the relevant Fourth Circuit precedent. See, e.g., United States v. Virginia, 282 F.R.D. 403, 405 (E.D. Va. 2012) (finding that intervention of right was appropriate where “… the
8

Case 1:17-cv-00116-LMB-TCB Document 27 Filed 02/02/17 Page 9 of 12 PageID# 156
Complaint contains a very broad request for relief that directly implicates the rights and interest of the Petitioners.”)
The Fourth Circuit also requires consideration of whether the rights of the Intervenors are likely to be impaired if intervention is denied. See Virginia v. Westinghouse Elec. Corp., 542 F.2d at 216. In this case, that standard is easily satisfied. The petitioner-plaintiffs have moved for a declaration regarding the constitutionality of the Executive Order and also asserted numerous claims arising under the Constitution and federal statutes. Were the Court to adjudicate these issues against the petitioner-plaintiffs without considering the claims of the Intervenors, it is beyond dispute that the Intervenors would face nearly insurmountable obstacles in obtaining relief.
Finally, the interest of the Intervenors is not adequately represented by the current petitioner-plaintiffs. The Supreme Court has held that the “inadequacy” requirement of Rule 24(a) is not a rigorous one, and can be satisfied if the party seeking intervention “shows that representation of his interest ‘may be’ inadequate …” Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972); see also Teague v. Bakker, 931 F.2d 259, 262 (4th Cir. 1991) (citing Trbovich for the proposition that a moving party’s burden in showing a lack of adequate representation should be “treated as minimal.”) While the Intervenors were also ensnared in the net of the recent Executive Order, their specific factual situation differs from that of the petitioner-plaintiffs, in that Ms. Falud was traveling on a K-1 visa. “In determining whether an interest is adequately represented, ‘The easiest case is that in which the [intervenor] has an interest that … is not represented at all. An interest that is not represented is surely not adequately represented and intervention must be allowed.” Jerez v. Republic of Cuba, No. 1:09mc38 (GBL), 2010 WL 629846, at *3 (E.D. Va. Feb. 16, 2010) (Lee, J.) (quoting 7C
9

Case 1:17-cv-00116-LMB-TCB Document 27 Filed 02/02/17 Page 10 of 12 PageID# 157
CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE §1909 (3d ed., rev. 2009).) Here, while the petitionerplaintiffs share many attributes with the Intervenors, the petitioner-plaintiffs cannot possibly adequately represent the Intervenors, because the petitioner-plaintiffs were entangled in the Executive Order while traveling on a different type of visa. The court should therefore find that intervention of right is appropriate under Rule 24(a).
B. IN THE ALTERNATIVE, THE COURT SHOULD PERMIT INTERVENTION UNDER RULE 24(b)
Assuming arguendo that the Court declines to grant intervention of right under Rule 24(a), the Court should nonetheless permit intervention under Rule 24(b). As an initial matter, there is clearly a common question of law and fact. Both the petitioner-plaintiffs and the Intervenors contest the validity of the Executive Order and assert that the Executive Order and the methods by which it was implemented violated their rights under the Constitution and various federal statutes. The resolution of these issues will necessary affect both the petitionerparties and the Intervenors. While Rule 24(b)(3) also requires the Court to consider whether permitting intervention will “unduly delay or prejudice the adjudication of the original parties’ rights,” no such delay or prejudice will occur if the Court permits intervention in this case. The case is still in the pleading stages, and therefore any prejudice to the existing parties will be minimal. See Liberty Mutual Fire Ins. Co. v. Lumber Liquidators, Inc., 314 F.R.D. 180, 187 (E.D. Va. 2016) (finding that permissive intervention would not prejudice the original parties because the case “[was] still in the initial pleadings stage.”) Furthermore, as stated supra, both the petitioner-plaintiffs and the Intervenor-Commonwealth of Virginia have consented to intervention by Mr. Nasreldin and Ms. Fadul. Therefore, if the Court finds that intervention of
10

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right is inappropriate under Rule 24(a), the Court should still allow permissive intervention under Rule 24(b).
CONCLUSION For the foregoing reasons, this Court should permit Mr. Nasreldin and Ms. Fadul to intervene in this case. The Intervenors clearly satisfy the test for intervention of right under Rule 24(a); their motion is timely, they have a protectable interest at stake in the litigation, their rights are likely to be impaired absent intervention, and the existing parties do not adequately represent their interests. If the Court finds that the Intervenors do not satisfy the standard for intervention of right, the Court should nonetheless permit intervention under Rule 24(b); the Intervenors share numerous common questions of law or fact with the petitioner-plaintiffs, and intervention will not prejudice the existing parties in any material way.
Respectfully submitted, Dated: February 2, 2017
/s/ Timothy J. Heaphy VA Bar. No. 68912 Hunton & Williams LLP 2200 Pennsylvania Ave., NW Washington, DC 20037 P: (202) 778-2239 F: (202) 828-3760 theaphy@hunton.com Counsel for Intervenors
11

Case 1:17-cv-00116-LMB-TCB Document 27 Filed 02/02/17 Page 12 of 12 PageID# 159
CERTIFICATE OF SERVICE I hereby certify that on the February 2, 2017, I electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to all counsel of record.
/s/ Timothy J. Heaphy VA Bar. No. 68912 Hunton & Williams LLP 2200 Pennsylvania Ave., NW Washington, DC 20037 P: (202) 778-2239 F: (202) 828-3760 theaphy@hunton.com Counsel for Intervenors
12

 
 Case 1:17-cv-00116-LMB-TCB Document 30 Filed 02/02/17 Page 1 of 10 PageID# 163

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAM.MED AZIZ, et al.,

)

Petitioners,

)

)

COMMONWEALTH OF VIRGINIA,

)

Intervenor,

)

)

)

)

DONALD TRUMP, President of the United

)

Srates; U.S. DEPARTMENT OF HOMELAND )

SECURITY; U.S. CUSTOM AND BORDER

)

PROTECTION; JOHN KELLY, Secretary of

)

DHS; KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; and WAYNE BIONDI, )

Customs and Border Protection (CBP) Port

)

Director of the Area Port of Washington, Dulles' )

)

Respondents.

)

Civil Action No. l:17-cv-l l6

DECLARATION OF EDWARD J. GRASS. ESO.

I, Edward J. Grass, declare that the following facts are true and conect:
1. Exhibit I is the declaration I prepared on January 30,2017, for use in the case

Darweesh v. Trump, pending in the Eastem Disfiict of New York. The contents of that

declaration are true and correct.
2. As detailed at greater length in Exhibit 1, I was personally present as a pro bono

attomey at Dulles International Airport in the Intemational Arrival area (near baggage claim)

from approximately 4:30 p.m. on Saturday, January 28,2017, until approximately 12:30 a.m. on

Sunday, January 29,2017. I was so situated that I would have been able to observe ifany of the

many pro bono attomeys who had gathered with me had been allowed access to the arriving

intemational passengers being held in custody by Customs and Border Protection (CBP).

I

Case 1:17-cv-00116-LMB-TCB Document 30 Filed 02/02/17 Page 2 of 10 PageID# 164

3. As reflected in paragraph 37 of Exhibit l, the Vice President and Airport Manager

at Dulles, Brian Leuck, told me at l0:44 p.m. that he had personally handed a copy of this Court's temporary restaining order ("TRO" or "Brinkema Order") to "Wayne Bond . . . .,"

whom I understood to be Wayne Biondi, the CBP Port Director of the Area Port of Washington

at Dulles.
4.

Mr. Leuck cut himself offand then said that he personally "handed" a copy of the

Brinkema Order to the "CBP 'duty officer,"' behind the doors marked "No Entry," and that he "was told by CBP they will not comply to allow any access."
5. At no time did I observe any of the many attomeys gathered with me being

granted access to any of the persons being held by CBP in custody, despite our repeated

insistence that it was required by the TRO.

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

Executed on: Fe&uary 2- 2017

Edward

)

Case 1:17-cv-00116-LMB-TCB Document 30 Filed 02/02/17 Page 3 of 10 PageID# 165

)

HAMEED KHALID DARWEESH ANd

)

HAIDER SAMEER ABDULKHALEQ

)

ALSHAWI, on behalf of themselves and others )

similarly situated,

)

)

Petitioners,

)

)

)

)

DONALD J. TRUMP, President of the United

)

Slares; U.S. DEPARTMENT OF

)

HOMELAND SECURITY ("DHS"); U.S.

)

CUSTOMS AND BORDER PROTECTION

)

("CBP"); JOHN KELLY, Secretary of DHS;

)

KEVIN K. MCALEENAN, lcllng

)

Commissioner of CBP; JAMES T.

)

MADDED. New York Field Director, CBP,

)

)

Respondents.

)

DECLARATION OF EDWARD J. GRASS. ESO. I, Edward J. Grass, upon my personal knowledge, declare under threat of periury as follows:
1. My name is Edward f . Grass, a retired Hunton & Williams LLP, litigation partner,
residing in Burke, VA, with a current business address of 9501 Burke Road #1.0784, Burke VA 22015, egrass@me.com, 202-256-247I cell, and an active attorney license issued by the Commonwealth of Virginia, Bar #48010.
2. This declaration is prepared based on my personal knowledge of attempts by me
and fellow attorneys to gain access to individuals detained ("Detainees") by the United States Customs & Border Protection ("CBP"J at the Metropolitan Washington Airports Authority Du[[es International Airport ("Dulles"], as well as repeated, intentional, and knowing refusals by CBP and Dulles to comply with the "lawyers access" paragraph ofthe Temporary Restraining Order by The
1
Exhibit 1--Declaration of Edward J. Grass, Esq.

Case 1:17-cv-00116-LMB-TCB Document 30 Filed 02/02/17 Page 4 of 10 PageID# 166
Honorable fudge Leonie M. Brinkema in Tareq Aziz et al., v. Trump, ef a[, No 1:17-cv-116 (EDVA, Jan. 28, 20t7 ) ("Brinkema Order").
3. I depose and state the following under oath based on my personal knowledge and
recollection, to the best of my knowledge, information and belief, under the pains and penalties of perjury, and sublect to my additional obligation of candor and honesty as an officer of the court.
EVENTS AT DULLES LEADING TO THE ATTORNEY ACCESS DENIAL AND ACCESS MOTION
4. On or about 4:30 pm on Saturday January 28, 20L7 ,l arrived at Dulles International
Airport, Gate 1, International Arrivals (near baggage claim] to provide legal services pro bono to any Detainees and/or their families to avoid irreparable harm from deprivation of liberty through detention and loss of due process rights, including through CBP's new and ongoing deportation activities after the related Executive 0rder by President Donald J. Trump.
5. Several dozen other lawyers advised me that they were present for similar
purposes, and such lawyers, including me, coordinated a variery of efforts to efficiently benefit the Detainees.
6. Starting at approximately 5:00 pm, I personally observed and confirmed with
several individuaI uniformed Officers of the Metropolitan Washington Airports Authority Police Department ("Dulles Police") that they were legally responsible for and in fact in charge of security in that Gate 1 baggage area and were barring entry on behalf of CBP to areas behind several doors marked "No Entry" where Detainees were being held at that time.
7. I observed and personally confirmed with the Dulles Police that they were being
supported by, but had superior jurisdiction to, several uniformed officers from the Loudoun County Sheriffs 0ffice ("Loudoun Sheriff'J.
8. At approximately 5:45 pm, I suggested that a group of lawyers present start work on
emergency efforts to seek an order from the United States District Court for the Eastern District of
2
Exhibit 1--Declaration of Edward J. Grass, Esq.

Case 1:17-cv-00116-LMB-TCB Document 30 Filed 02/02/17 Page 5 of 10 PageID# 167
Virginia compelling lawyers access to the Detainees to prevent immediate and ongoing prejudice to them from waivers or deportations that they could not consider or challenge without legal help.
9. At approximately 6:05 pm, I spoke with Shahin Fatlah, Esq., who advised me that he
was there to assist individuals with an arriving family member.
10. Mr. Fallah and I learned that an lranian Detainee had been permitted to leave the
detention area and Dulles, and Mr. Fallah spoke with her.
ll. I and other attorneys expressed alarm at the released Detainee's reports of CBP
demands for information and the apparent likelihood of ongoing waivers of rights and deportations in violation of Detainee rights.
12. The Detainees were reportedly kept in open groups that were not sequestered or
otherwise isolated from contact, meaning, in part, that additional lawyer contact should not be an issue for CBP.
13. At,5:11pm, I emailed Simon Y. Sandoval-Moshenberg, Legal Director ofthe Legal
Aid fustice Center ("Mr. Moshenberg"), with the proposed lawyers access effort, and he subsequently retained Mayer Brown LLP to draft relevant legal paperwork (the "Access Motion").
14. From approximately 6:11 pm to I pm, I personally worked at Dulles Airport to help
coordinate the production ofaffidavits and other materials in support ofthe Access Motion.
15. A working group on matters related to the Access Motion included the efforts of
aftorney Alfred Robinson, Esq. ("Mr. Robinson"J, who had a client who already had landed and was a Detainee or would be shortly based on the client's origin and visa status.
15. As part of this Access Motion proiect, from approximately 7:30 pm to 7:53 pm, I
again tested and again was refused access for me, Mr. Fallah, Mr. Robinson, or any other attorney present to reach the Detainees on threat of being arrested.
3
Exhibit 1--Declaration of Edward J. Grass, Esq.

Case 1:17-cv-00116-LMB-TCB Document 30 Filed 02/02/17 Page 6 of 10 PageID# 168
t7. At approximately 7:50 pm, I asked one Loudoun Sherriffs Deputy Officer Purdue for
access for me or any other attorneys into the Detainee area to observe it silently and/or assist anyone who might want representation.
18. Officer Purdue politely declined and advised that she would forcibly prevent me
from doing so if I attempted to enter, and I would be arrested.
19. At approximately, 8:05 pm, I met and spoke with Metropolitan Washington Airports
Authority Police Deputy Chief Damsky ("DC Damsky") who, cordially and professionally, confirmed that I or any other attorney attempting access on any basis would be arrested immediately by him or his Officers.
20. At the same time, I asked DC Damsky to put me in touch with a representative of the
CBP to ask them to agree to access.
2L. DC Damsky advised me that he would be glad to do so, but that CBP had ignored his
attempts at contact throughout the day and had abandoned their normal positions behind the doors marked "No Entry."
22. DC Damsky advised me that he had been "trying to get CBP officers to give me [i.e.
DC Damsky] guidance and I cannot reach them."
23. DC Damsky also advised me that he had had no contact with any CBP personnel "for
hours", but would find me and let me know if he did have CBP contact in the future that evening.
24. DC Damsky never advised me that he reached anyone with CBP nor put anyone with
CBP in touch with me, though I followed up with DC Damsky several times on this topic and he advised that he remained unable to reach anyone with CBP.
CPB AND DULLES REFUSAL TO COMPLY WITH THE BRINKEMA ORDER
25. After the Brinkema Order was entered, but before I received a copy, at
approximately 9:30 pm, I spoke to DC Damsky to give him a "heads up" that the lawyers access
4 Exhibit 1--Declaration of Edward J. Grass, Esq.

Case 1:17-cv-00116-LMB-TCB Document 30 Filed 02/02/17 Page 7 of 10 PageID# 169
requirement appearing in the Brinkema Order had been entered and that I hoped and expected to coordinate with him and CBP for that access to help make the process run smoothly.
26. Shortly thereafter, I met and spoke with Interim Vice President and Airport Manager
for Dulles International Brian Leuck ("Mr. Leuk"J, who advised that he was the person in charge and responsible with Mr. Damsky for coordinating with CBP for access if such an order arrived and CBP directed him to comply.
27. During this discussion, Mr. Leuck advised me that he personally had all electronic
keypad access codes to gain entry to the CBP area where the Detainees were located, and that he had personally used them earlier that evening and personally saw the Detainees.
28. During a similar time period, the working group selected an initial team of 8
attorneys with clients and immigration experience to be ready to enter once the Brinkema Order arrived.
29. At 9:56 pm, I received an electronic copy ofthe Brinkema Order. 30. I immediately walked the Brinkema Order to Mr. Leuck, who read it on my phone. 31. Mr. Leuck advised that he would not grant access unless and until CBP ordered him
to do so.
32. I asked him what if any basis he had to decline the Brinkema Order in favor of CBP
instructions, and he said that he had none other than that he would follow their instructions.
33. Soon thereafter, I showed the Brinkema Order to DC Damsky, and had a virtually
identical conversation to that with Mr. Leuck, including that DC Damsky would not comply with the Brinkema 0rder unless and until CBP instructed him to do so.
34. At the same time, DC Damsky advised that he still had not and still could not reach
anyone at CBP for guidance on anything.
35. At 10:28 pm, I emailed Mr. Moshenberg the following:
5
Exhibit 1--Declaration of Edward J. Grass, Esq.

Case 1:17-cv-00116-LMB-TCB Document 30 Filed 02/02/17 Page 8 of 10 PageID# 170
I personally showed the Dulles Alrport Manager Brlan Luke [slc] and hls OePuty Chlel Damsky the VA access order. They acknowledged lt to me, relused to accept a paper copy and are reluslng access ion CBP orders.' Luke [3lcl sald CBP has ge€n the Ya order but no CBP personnel wlll speak wlth us. Edward J Grass, Esq. vA Bar 48010 S€nt lrom my lPhone
36. At 10:30 pm, I emailed Mr. Moshenberg the following confirmation that Mr. Leuck
had the Brinkema Order in hand, could comply with it, would not comply with it, and that he was
aware of the risk of contempt:
Showed thls emall to Mr. Luke [slcl who contlrmed accuracy and now has a PaPer copy ol the Va order lrom hls attorneys. (l saw hlm holdlng the coPy). Mr. Luke [slc] also conllrmed lhat he ha8 the door codes lhat would enable us to get lo and see the LRP lndlvlduals ln compllance wlth Judge Brlnkema but he wlll not use them per CBP orders lo hlm. I warned hlm lhat thls mlght b€ seen as acllonable contemPt ol court to slde wllh CBP orders over Judge Brlnkema. He sald "so be It". Senl trom my lPhone On Jan 28, 2017, at 10:28 PM, Edward Grass rass@mac.com> wrote: I p€rsonally showed the Dulles Alrporl Manager Brlan Luke [slc] and hls DePuty Chlet Damsky the VA access order. They acknowledged lt to me, relus€d to accept a Paper copy and are refuslng access'on CBP orders.' Luke [slc] sald CBP has 3e€n the va order but no CBP personnel wlll speak wlth us. Edward J Grass, Esq. vA Bar 48010 Sent lrom my lPhone
37. At 10:44 pm, Mr. Leuck began to state to me that he had handed a copy of the
Brinkema Order to "Wayne Bond . . .", who I understood to be Wayne Bondi, Port Director of the Area Port of Washington Dulles, U.S. Customs & Border Protection. Mr. Leuck cut himself off and then said that he personally "handed" a copy ofthe Brinkema Order to the "CPB 'duty officer"' behind the doors marked "No Entry" and "was told by CBP they will not comply to allow any
access."
6
Exhibit 1--Declaration of Edward J. Grass, Esq.

Case 1:17-cv-00116-LMB-TCB Document 30 Filed 02/02/17 Page 9 of 10 PageID# 171
38. During this same conversation, I again asked why Mr. Leuck would not comply with
the access codes in his possession to follow the Brinkema Order, and he responded that he would follow CBP's instructions over the order.
39. During another conversation, moments later, Mr. Leuck advised me that CBP told
him they were at that time "going through the waiver process with everybody [Detainees] still inside". Mr. Leuck told me he had no idea what this entailed, what process or standards were being used, and whether irreparable harm or prejudice might result.
40. I explained that this was one reason exactly why the attorneys sought and obtained
the Brinkema Order and why he and CBP needed to comply, but Mr. Leuck again reiected compliance. I explained to Mr. Leuck "the importance of them having counsel per the fudge's order so that their rights are not lost and that due process is followed" for every Detainee, not iust arbitrarily selected individuals.
4L. In fact, two elderly lranian Detainees, a husband and wife in their late 80s or older,
were allowed through and to leave the airport while other Detainees, for unknowable reasons, were not similarly cleared or allowed lawyers to access them ,
42. Mr. Leuck then spoke to the released Iranian Detainees' granddaughter in front of
me who thanked him, and then Mr. Leuck spoke with me directly to confirm that Mr. Leuck had personally interceded with CBP on the released Detainees' behalfto "get them out" because of their precarious health and because CBP reportedly had discarded their medications. I asked Mr. Leuck if he could or would do the same to help others be released on any basis, and he declined to
answer.
43. Several times, until approximately 11:45 pm, I politely reminded Mr. Leuck that he
did not have the option to refilse a federal court order in favor of CBP instructions, but he repeatedly declined compliance.
7
Exhibit 1--Declaration of Edward J. Grass, Esq.

Case 1:17-cv-00116-LMB-TCB Document 30 Filed 02/02/17 Page 10 of 10 PageID# 172
44. I also spoke with DC Damsky to advise him during the same time frame of his own
obligation to comply, and he politely declined, saying he would follow CBP instructions.
45. Shortly before midnight Senator Cory Booker arrived at Dulles, and I obsewed as he
walked with a copy of the Brinkema Order to speak with Dulles representatives.
46. Around midnight, I observed as Senator Booker spoke to the assembled crowd. 47. After the speech, I personally spoke with Senator Booker, who confirmed that he
had spoken with Dulles representatives who refused access in a way similar to the refusal I and other attorneys had faced earlier.
48. Mr. Leuck advised me that all Detainees had been or would shortly likely be released
that evenin& which Mr. Booker similarly stated publicly he had been told.
49. Before I left Dulles, Mr. Robinson advised me that he had still not been provided the
access to his Detainee client required by the Brinkema Order and did not know where she was or would be held the remainder ofthe evening.
50. At approximately 12:30 am, on January 29,2077,I left Dulles.
FURTHER AFFIANT SAYETH NAUGHT,

BV: Ed

s, Esq

B # 48010

95 Burke Road #10784

Burke, VA 22015

egrass@me.com

202-256-2471 cell

Dated: January 30,2017

I
Exhibit 1--Declaration of Edward J. Grass, Esq.

 
 Case 1:17-cv-00116-LMB-TCB Document 18 Filed 02/01/17 Page 1 of 2 PageID# 99

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al.,

)

)

Petitioners,

)

)

v.

)

)

DONALD TRUMP, President of the United

)

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

THE COMMONWEALTH OF VIRGINIA’S MOTION FOR THE ISSUANCE OF A RULE TO SHOW CAUSE The Commonwealth of Virginia, by counsel and pursuant to Federal Rule of Civil Procedure 70(e), and for the reasons stated in the accompanying brief, moves this Court to require respondents to show cause why they are not in contempt of this Court’s temporary restraining order entered on the evening of January 28, 2017. (Dkt. 3.)
Respectfully submitted, COMMONWEALTH OF VIRGINIA,

By:

/s/

Stuart A. Raphael (VSB No. 30380)

Solicitor General

Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us

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Mark R. Herring Attorney General of Virginia Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us Matthew R. McGuire (VSB No. 84194) Assistant Attorney General mmcguire@oag.state.va.us Counsel for Commonwealth of Virginia
CERTIFICATE OF SERVICE I certify that on February 1, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

TAREQ AQEL MOHAMMED AZIZ and
AMMAR AQEL MOHAMMED AZIZ, by their next friend,
AQEL MUHAMMAD AZIZ,
and
JOHN DOES 1-60,
on behalf of themselves and others similarly situated,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; WAYNE BIONDI, Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles, and EIGHT UNNAMED CBP AGENTS AT DULLES AIRPORT,
Respondents.

Case No. 1:17-cv-116 Date: January 30, 2017

FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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INTRODUCTION 1. Pursuant to an Executive Order signed by President Donald Trump on January 27, 2016, the U.S. government banned entry into the United States by all non-citizens from seven listed countries, subject to an undefined waiver process. This ban, when first promulgated, included individuals on immigrant visas and returning lawful permanent residents. 2. The Immigration and Nationality Act provides no way to legally effectuate such a ban against this category of immigrants. As a result, upon information and belief, Department of Homeland Security officials have been effectuating the ban by bullying these arriving immigrants into “voluntarily” relinquishing their claims to lawful permanent residence into the United States. 3. On information and belief, respondents (through their agents and employees) lied to immigrants arriving after the Executive Order was signed, falsely telling them that if they did not sign a relinquishment of their legal rights, they would be formally ordered removed from the United States, which would bring legal consequences including a five-year bar for reentry to the United States. Because respondents knew that there was no valid, legal basis to remove these individuals from the United States, these were material, false representations. 4. Throughout this time, respondents denied arriving immigrants access to legal counsel. 5. On information and belief, these acts occurred nationwide, including but not limited to Washington-Dulles International Airport. During the first 24 to 48 hours that the ban was in place, Customs & Border Protection reports that it denied entry to at least 109 individuals. Many of these individuals were unlawfully compelled to “voluntarily” renounce their U.S. immigration status.
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6. Petitioners Tareq Aqel Mohammed Aziz (Tareq) and Ammar Aqel Mohammed Aziz (Ammar) are two brothers of Yemeni nationality, who were granted immediate relative immigrant visas (IR2 category) by virtue of their status as immediate relatives of their father, a US citizen.
7. On the morning of January 28, 2017, they landed in Washington-Dulles International Airport (IAD). This was a moment that they and their father had waited for and dreamed of for many years. But their dream quickly and inexplicably converted into a nightmare: instead of being permitted to transit to their connecting flight, Tareq and Ammar were handcuffed, detained, forced to sign papers that they neither read nor understood, and then placed onto a return flight to Ethiopia just two and a half hours after their landing.
8. During the brief time Tareq and Ammar were in the United States, employees or agents of respondents coerced Tareq and Ammar to sign U.S. Citizenship and Immigration Services Form I-407, which is entitled “Record of Abandonment of Lawful Permanent Resident Status.” The immigrant visas that they had fought so long and hard to obtain were thereupon cancelled – and, to add insult to injury, this was falsely claimed to be a result of their voluntary request. See https://www.uscis.gov/i-407 (“Use Form I-407 to let us know that you have decided voluntarily to abandon your status as a lawful permanent resident of the United States. We will then update your records to show that you are no longer an LPR.”).
9. Tareq and Ammar signed these papers because agents or employees of respondents misrepresented that, if they failed to sign them, that they would be ineligible for entry to the United States for a period of at least five years. That representation was not true.
10. Tareq and Ammar are currently in Addis Ababa Bole International Airport, where they remain in limbo. They do not want to return to Yemen, which is currently in a state of civil
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war. They are thus constructively in the custody of the United States. Tareq and Ammar wish to return to the United States, to reside with their father.
11. What happened to Tareq and Ammar is illustrative of what happened to dozens— if not hundreds—of LPRs and immigrant visa holders throughout the country on January 27 and 28, 2017. In these circumstances described above, any relinquishment of rights via a form I-407 was not voluntary, knowing, or freely given. Instead, it was the direct product of respondents’ agents’ misrepresentations as to what would occur if these individuals refused to sign. On information and belief, similarly-situated individuals who did not sign I-407s were ultimately admitted into the United States—thus demonstrating the falsity of the representations of respondents’ agents.
JURISDICTION AND VENUE 12. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1361, 2241, 2243, and the Habeas Corpus Suspension Clause of the U.S. Constitution. This court has further remedial authority pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. 13. Venue properly lies within the Eastern District of Virginia, Alexandria Division because a substantial part of the events or omissions giving rise to this action occurred in the District. 28 U.S.C. § 1391(b). 14. No petition for habeas corpus has previously been filed in any court to review petitioners’ cases.
PARTIES 15. Petitioner Tareq Aqel Mohammed Aziz is a 21-year-old citizen and national of Yemen. He was granted an immigrant visa (IR2 category) by the US Embassy in Djibouti, by virtue of being an immediate relative of a US citizen. He is a Muslim.
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16. Petitioner Ammar Aqel Mohammed Aziz, is a 19-year-old citizen and national of Yemen. He was granted an immigrant visa (IR2 category) by the US Embassy in Djibouti, by virtue of being an immediate relative of a US citizen. He is a Muslim.
17. Aqel Muhammad Aziz is a US citizen. He is a resident of Flint, Michigan. He is a Muslim.
18. Petitioners JOHN DOES 1-60 are approximately 60 lawful permanent residents of the United States, or immigrant visa holders, all nationals of Syria, Libya, Iran, Iraq, Somalia, Yemen or Sudan, who landed at Dulles Airport on January 27 and/or 28, 2017. Upon information and belief, some of these John Does were, like Tareq and Ammar, unlawfully forced to withdraw their applications for admission by means of being compelled into signing I-407 forms against their will and without their knowledge or consent, and placed on planes headed to foreign countries.1
19. The U.S. Department of Homeland Security (“DHS”) is a cabinet department of the United States federal government with the primary mission of securing the United States.
20. U.S. Customs and Border Protection (“CBP”) is an agency within DHS with the primary mission of detecting and preventing the unlawful entry of persons and goods into the United States.
21. Respondent John Kelly is the Secretary of DHS. Secretary Kelly has immediate or constructive custody of Petitioners and other members of the proposed class. He is sued in his official capacity.
1 Petitioners anticipate seeking leave to file amended pleadings as further John Does are identified.
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22. Respondent Kevin K. McAleenan is the Acting Commissioner of CBP. Acting Commissioner McAleenan has immediate or constructive custody of petitioners and other members of the proposed class. He is sued in his official capacity.
23. Respondent Wayne Biondi is the Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles, which has immediate or constructive custody of petitioners. He is sued in his official capacity.
24. Respondent Donald Trump is the President of the United States. He is sued in his official capacity.
25. Respondents Eight Unnamed CBP Agents at Dulles Airport are employees of CBP, acting at all times in their official capacity and under the direct and specific orders of Messrs. Kelly, McAleenan, and Trump. They are sued in their official capacity.
STATEMENT OF FACTS President Trump’s January 27, 2017 Executive Order 26. On January 20, 2017, Donald Trump was inaugurated as the forty-fifth President of the United States. Throughout his campaign, he made repeated and specific promises to enact a “Muslim ban” once elected. 27. One week later, on January 27, at about 4:30pm, President Trump signed an executive order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States,” which is attached hereto as Exhibit A and is hereinafter referred to as the “EO.” 28. Citing the threat of terrorism committed by foreign nationals, the EO directs a variety of changes to the manner and extent to which non-citizens may seek and obtain admission to the United States, particularly (although not exclusively) as refugees.
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29. Most relevant to the instant action is Section 3(c) of the EO, in which President Trump proclaims “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 that he is therefore “suspend[ing] entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order,” with narrow exceptions not relevant here. (Emphasis added.)
30. There are seven countries that fit the criteria in 8 U.S.C. § 1187(a)(12): Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. According to the terms of the EO, therefore, the “entry into the United States” of non-citizens from those countries is “suspended” from 90 days from the date of the EO.
31. Consistent with its terms, the EO was at first applied to all noncitizens from the listed countries, regardless of immigration status. Only on the afternoon of January 29, 2016, did Respondent Kelly publish a memorandum stating that the EO would henceforth generally not be applied to returning lawful permanent residents (LPRs). However, a DHS Fact Sheet clarified that this exception did not apply to first-time entrants on immigrant visas. See Exh. C at p.2 (“Importantly, however, lawful permanent residents of the United States traveling on a valid I-551 will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate.” (Emphasis added.)). As of the date of filing this pleading, the EO is still being applied to bar the entry of first-time entrants on immigrant visas.
Tareq and Ammar 32. After performing standard administrative processing and security check procedures, the federal government deemed both Tareq and Ammar to be admissible to the United States as immigrants.
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33. Both individuals were therefore issued valid U.S. immigrant visas, category IR2, by the U.S. Embassy in Djibouti. In order to obtain these visas, they passed rigorous background checks, and the Embassy determined they were not inadmissible for any reason under law. They obtained these visas by virtue of their status as immediate relatives of their father, who is a US citizen. (Neither they nor their father committed fraud or material misrepresentations at any point during the visa process.)
34. Excited that they would finally be reunited as a family, Tareq and Ammar then traveled from Djibouti to Addis Ababa, Ethiopia, from where they departed on a flight to Washington-Dulles International Airport (“IAD”). The flight departed Ethiopia about two hours before President Trump signed and promulgated the EO. The flight made a stop in Dublin, Ireland, and then landed at IAD at around 8:00am on Saturday, January 28. While in the air, they had no idea that the EO even existed.
35. Tareq and Ammar intended to be admitted into and enter the United States on their valid IR2 visas, whereupon they would become lawful permanent residents (LPRs), and then continue on to Michigan where their father was awaiting them.
36. Upon deplaning, officers or agents of respondents handcuffed Tareq and Ammar. 37. Officers or agents of respondents fingerprinted and photographed them. Officers or agents of respondents also seized Tareq and Ammar’s immigration paperwork, including a packet of documents necessary to obtain entry into the United States in LPR status. That material was never returned to Tareq and Ammar. 38. Tareq and Ammar were forced to wait for approximately an hour until employees or agents of respondents returned. Tareq overheard that his visa had been canceled.
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39. An employee or agent of respondents presented the brothers with documents to sign. Tareq stated that he did not understand the documents. The employees or agents stated that “our country will discuss this problem with your country.” Upon information and belief, these officers or agents compelled Tareq and Ammar to sign U.S. Citizenship and Immigration Services Form I-407, which is entitled “Record of Abandonment of Lawful Permanent Resident Status.” See https://www.uscis.gov/i-407.
40. Tareq and Ammar were at the time shocked and bewildered. They did not understand the documents presented to them. They were not informed of the legal consequences of those documents. They were not offered the opportunity to consult with legal counsel.
41. An employee or agent of respondents falsely informed Tareq and Ammar that, if they did not sign the documents, they would be sent to Yemen and that they would be barred from returning to the United States for five years.
42. It therefore appears that an employee or agent of respondents represented to Tareq and Ammar that, if they declined to sign an I-407, they would be officially removed from the United States and thus subject to an entrance bar of five years. This statement was highly material in these circumstances and it was plainly false. Respondents possessed no legal right to remove Tareq and Ammar from the United States.
43. In light of this significant pressure exerted by employees or agents of respondents, Tareq and Ammar felt that they had no choice other than to sign the documents. They were fearful that if they did not sign the documents, that they would be indefinitely detained or that they would be barred from entering the United States for a lengthy period of time. Tareq and Ammar did not understand any of the consequences of signing the documents.
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44. Tareq and Ammar were not permitted to keep copies of the documents that they were compelled and coerced into signing. No copies of those documents have been provided.
45. CBP agents then stamped “Cancelled” over Tareq and Ammar’s IR2 immigrant visas.
46. Subsequently, attorneys for the respondents have suggested that Tareq and Ammar “voluntarily” relinquished their rights as immigrant visa holders. Tareq and Ammar deny that their conduct in signing any documents at Dulles airport was voluntary. They made neither a free choice nor an informed choice.
47. The reason that CBP agents compelled Tareq and Ammar to sign I-407 documents, is that, because the brothers were not subject to expedited removal, nor inadmissible, there was no other legal mechanism to bar Tareq and Ammar from entering the United States and becoming lawful permanent residents thereof. See generally 8 U.S.C. § 1225(b). Yet, they were under specific orders from respondents to bar admission of individuals in Tareq and Ammar’s situation. Accordingly, respondents’ agents engaged in this illegal scheme.
48. Tareq and Ammar were then compelled to purchase tickets—at their own expense—on the next flight to Addis Ababa, Ethiopia.
49. Tareq and Ammar departed Dulles on an Ethiopian Airlines flight on the morning of Saturday, January 28, about two and a half hours after landing at Dulles Airport.
50. Since arriving in Ethiopia, Tareq and Ammar have been in limbo at the Addis Ababa Bole International Airport. Their passports have been confiscated by Ethiopian Airlines authorities.
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51. Tareq and Ammar do not wish to return to Yemen, which is currently in a state of civil war. They wish to return to the United States, to live with their father in Flint, Michigan, pursuant to the immigrant visa properly granted by the U.S. government.
John Does 1-60. 52. Petitioners John Does 1-60 are approximately 50-60 returning lawful permanent residents, or individuals traveling on valid immigrant visas entitling them to be admitted into the United States in lawful permanent resident status. Most of these were individuals returning from trips abroad, all of whom are nationals of one of the following seven countries: Lybia, Iraq, Iran, Yemen, Syria, Sudan, Somalia. All were held for some time, during January 27 or 28, 2017, in the international arrivals area of Dulles Airport. 53. Upon information and belief, many of petitioner John Does 1-60 were, like Tareq and Ammar, forced to withdraw their applications for admission to the United States by means of being compelled against their will and without knowledge or consent to sign forms I-407, and then placed on planes headed to foreign destinations. See, e.g., http://jezebel.com/woman-and-her-2children-held-at-dulles-airport-for-20-1791762183 (describing how a Somali woman entering the United States on an immigrant visa together with her U.S.-citizen children “was pressured to sign papers and told that her visa had been canceled. When she refused to sign, asking to wait until her husband arrived, immigration officers threatened that she would not be permitted to return to the United States. She was then told to sign her children’s paperwork so that they could accompany her back to Africa. . . . ‘They handcuffed her, even when she went to the bathroom[.]’”). 54. Discovery will reveal the full identifies of these individuals. Counsel is meanwhile working diligently to uncover the identities of John Does 1-60. Petitioners’ claim to lawful admission to the United States as immigrants
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55. No grounds of inadmissibility under the Immigration and Nationality Act applies to either Tareq or Ammar, nor are they subject to expedited removal for any reason, nor is there any reason under Title 8 of U.S. Code or Title 8 of the Code of Federal Regulations to bar them from entering the United States as immigrants and thereby lawful permanent residents.
56. Congress has provided that immigrants in petitioners’ situation are entitled to enter the United States, and that if the government disagrees, it must institute regular removal proceedings before an immigration judge. 8 U.S.C. § 1225(b). The only exceptions to that rule (for example, criminals, stowaways, fraud, or individuals arriving without valid documentation) do not apply here.
57. The government considers that Tareq and Ammar “withdrew their application for admission” and then voluntarily departed. That is, as a matter of fact, false. The jurisdictional bars of 8 U.S.C. § 1252 therefore do not apply.
The Court’s issuance of a Temporary Restraining Order. 58. On January 28, 2017, at approximately 9:30pm ET, this Court granted a TRO. It provided: “a) respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International airport; b) respondents are forbidden from removing petitioners— lawful permanent residents at Dulles International Airport—for a period of 7 days from the issuance of this Order.”2
2 The government can be expected to argue that Tareq and Ammar were not in fact “lawful permanent residents” as they were never admitted on their immigrant visas. As set forth herein, it makes no material difference to the legal analysis: they were entitled to be admitted; or, failing that, to be placed in regular removal proceedings before an immigration judge.
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59. At the time the TRO issued, unbeknownst to counsel or to their father (or anyone else outside of CBP), respondents had already placed Tareq and Ammar on a plane departing the country, and they were in flight.3
60. At the time the TRO issued, at least some JOHN DOES 1-60 were held in secure areas at Dulles, including in secondary screening.
61. On the evening of Saturday, January 28, 2017, following the issuance of the Court’s TRO, CBP personnel refused to permit any lawyers access to LPRs subject to the new screening provisions established by the Executive Order.
62. CBP personnel indicated that it would not comply with the order unless it was served via “official channels.”
63. CBP personnel also indicated that the Court’s order was limited to LPRs in “detention,” but asserted that individuals at Dulles were not in “detention.” They claimed that the TRO did not apply because individuals are instead subject to “processing.”
64. Notwithstanding the assertions of CBP personnel, petitioners were not free to leave CBP custody. Additionally, the INS Insp. Field Manual provides, at Section 17.8, that “During an inspection at a port-of-entry, detention begins when the applicant is referred into secondary and waits for processing.”
65. The refusal of respondents’ agents to comply with the counsel-access provisions of the TRO are by now well documented. See http://www.thedailybeast.com/articles/
3 Counsel was not aware of this fact because, despite repeated inquiries by telephone and in person, CBP personnel refused to advise counsel as to any facts regarding the brothers’ case. Likewise, their father was unaware of this fact because, at no time during their two-and-a-half hours in CBP custody were they allowed to make any telephone calls or otherwise advise anyone in the outside world as to what was happening to them.
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2017/01/29/trump-s-border-patrol-defies-judge-u-s-senator-at-dulles-airport-at-his-firstconstitutional-crisis-unfolds.html.
66. U.S. Senator Cory Booker arrived at Dulles airport on the evening of Saturday, January 28, 2017. Respondents’ agents continued to refuse compliance. Holding a copy of this Court’s TRO, Senator Booker stated that “I am now of the belief that though this was issued by the judicial branch, that it was violated tonight.” Id.
67. Senator Booker has submitted affidavit regarding his time at Dulles, attached hereto as Exh. B. In it, he states:
Prior to my arrival at IAD, a CBP employee who was not present at IAD communicated to my staff member, upon receiving the TRO, that “individuals are not entitled to counsel during immigration processing at a port of arrival.” When my staff member challenged their assertion in light of the TRO, they responded that “The lawyers are looking at the order.” Upon arrival, I met with Metropolitan Washington Airports Authority (MWAA) police in an effort to obtain compliance with a Temporary Restraining Order (TRO) from the Eastern District of Virginia (E.D. Va.) and a nationwide stay issued by the Eastern District of New York (E.D.N.Y.). At my request, the TRO was presented by the MWAA police officer to CBP officials on site. I did not speak directly with Customs and Border Protection (CBP) or any other representative of the Department of Homeland Security (DHS). 68. In the late afternoon of January 29, 2017—approximately 16 hours after the Court issued the TRO—counsel for respondents confirmed that respondents would provide notice of the Court’s order to arriving LPRs subject to screenings pursuant to the Executive Order. But respondents refused to permit in-person access to lawyers. Likewise, respondents refused to provide specialized telephone numbers to arriving LPRs, instead providing only generic materials listing the names and phone numbers for 10 different immigration non-profits in the Washington DC metro-area – nine of which respondents knew had no interest in or ability to provide legal
14

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advice to this particular population (and indeed were not even open and available to take calls on a Sunday). See https://www.justice.gov/eoir/file-/ProBonoVA/download.
69. Throughout this time, at all times, more than 25 lawyers were present at Dulles Airport in the international arrivals area, ready and willing to offer free, pro-bono legal services to the JOHN DOES.
70. Had Tareq, Ammar, and the JOHN DOES been properly advised of their legal rights and the legal consequences of signing an I-407, they would not have done so.
Representative Allegations 71. In addition to Petitioners, there are there are numerous other individuals with legal permanent resident status or who are traveling on valid U.S. immigrant visas who have been or will be either detained and/or coerced into signing a Form I-407. Each of these similarly situated individuals is entitled to bring a petition for a writ of habeas corpus or, in the alternative, a complaint for declaratory and injunctive relief, to prohibit respondents’ policy, pattern, and practice of prohibiting class members from entering the United States when they arrive at U.S. borders with valid entry documents and coercing the relinquishment of rights. These similarly situated individuals satisfy the numerosity, typicality, commonality, adequacy of representation requirements established by Fed. R. Civ. P. 23. Petitioners therefore will move this Court for an order certifying a representative class of Petitioners consisting of all individuals with legal permanent resident status or traveling on valid U.S. immigrant visas, who are from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, legally authorized to enter the United States, and who have been or will be denied entry to the United States on the basis of the January 27, 2017 Executive Order.
15

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CAUSES OF ACTION COUNT ONE
FIFTH AMENDMENT – PROCEDURAL AND SUBSTANTIVE DUE PROCESS DENIAL OF RIGHT TO ENTER UNITED STATES
72. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
73. Respondents have infringed petitioners’ procedural and substantive due process rights in multiple respects.
74. To begin with, petitioners have a due process interest in the statutory rights granted by Congress; that is, “[m]inimum due process rights attach to statutory rights.” Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (alteration in original) (quoting Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996)).
75. U.S. law, including federal statutes and regulations, obligate the United States to allow LPRs and immigrant visa holders admission into the United States, unless those individuals are for some reason inadmissible. In denying petitioners admission to the United States, respondents violated petitioners’ procedural and substantive due process rights.
76. One of the procedural due process rights denied petitioners was access to legal counsel, to their specific and material injury. Respondents prohibited petitioners from conferring with attorneys who were present on the scene and willing to advise and represent them on a pro bono basis.
77. Further, the grant of the immigrant visas to petitioners, such as the IR2 visas to Tareq and Ammar, created an entitlement to the lawful permanent resident status and subsequent provision of a “green card.” These entitlements were revoked without due process of law.
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78. Likewise, the conduct of respondents has amounted to an illegal retroactive revocation of the immigration status previously extended by the U.S. government. See Estrada v. Holder, 604 F.3d 402, 406 (7th Cir. 2010); Sharkey v. Quarantillo, 541 F.3d 75, 86, 93 (2d Cir. 2008); United States v. Figueroa-Burruel, No. CR 10-3738-TUC-RCC, 2011 WL 6100288, at *9 (D. Ariz. Oct. 11, 2011), report and recommendation adopted sub nom. United States v. Burruel, No. CR 10-3738-TUC-RCC, 2011 WL 6099355 (D. Ariz. Dec. 8, 2011). The retroactive retraction of this status is an unlawful action in violation of due process rights.
79. The actions of respondents—as well as respondents’ employees and agents— coerced or compelled Tareq and Ammar to withdraw their applications for admission against their will. These were neither freely made nor knowing and informed decisions. The conduct of respondents, and their employees and agents, thus violated petitioners’ procedural and substantive due process rights.
COUNT TWO THE IMMIGRATION AND NATIONALITY ACT 80. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 81. The Immigration and Nationality Act and implementing regulations entitle Tareq, Amar, and John Does 1-50 to enter the United States as immigrants or LPRs. 82. Respondents’ actions in sending Tareq and Ammar to Yemen, and John Does 1-50 to various foreign countries, deprive petitioners of their statutory and regulatory rights. 83. In particular, because petitioners have valid and/or approved immigrant visas or lawful permanent resident status, denial of admission into the United States violates 8 U.S.C. §§ 1151, 1201, 1225, and accompanying regulations.
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COUNT THREE THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. § 1152 84. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 85. Respondents’ actions in sending Tareq and Ammar to Yemen, and John Does 1-50 to various foreign countries, also violates 8 U.S.C. § 1152 and accompanying regulations. This statute prohibits discrimination against individuals on the basis of nationality, without sufficient justification.
COUNT FOUR FIRST AMENDMENT – ESTABLISHMENT CLAUSE 86. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 87. Tareq, Ammar, and John Does 1-50 were denied entry to the United States or forced to withdraw their applications for admission to the United States and/or abandon their status as lawful permanent residents as a result of the EO. 88. The EO exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity. The EO therefore violates the Establishment Clause of the First Amendment by not pursuing a course of neutrality with regard to different religious faiths.
COUNT FIVE FIFTH AMENDMENT – EQUAL PROTECTION 89. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
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90. The EO discriminates against petitioners on the basis of their countries of origin and religion, without sufficient justification, and therefore violates the equal protection component of the Due Process Clause of the Fifth Amendment.
91. Additionally, the EO was substantially motivated by animus toward—and has a disparate effect on—Muslims, which also violates the equal protection component of the Due Process Clause of the Fifth Amendment. Jana-Rock Const., Inc. v. N.Y. State Dep’t of Econ. Dev., 438 F.3d 195, 204 (2d Cir. 2006); Hunter v. Underwood, 471 U.S. 222 (1985).
92. Respondents have demonstrated an intent to discriminate against petitioners on the basis of religion through repeated public statements that make clear the EO was designed to prohibit the entry of Muslims to the United States. See Michael D. Shear & Helene Cooper, Trump Bars Refugees and Citizens of 7 Muslim Countries, N.Y. Times (Jan. 27, 2017), (“[President Trump] ordered that Christians and others from minority religions be granted priority over Muslims.”); Carol Morello, Trump Signs Order Temporarily Halting Admission of Refugees, Promises Priority for Christians, Wash. Post (Jan. 27, 2017).
93. Applying a general law in a fashion that discriminates on the basis of religion in this way violates petitioners’ rights to equal protection the Fifth Amendment Due Process Clause. Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). Petitioners satisfy the Supreme Court’s test to determine whether a facially neutral law—in this case, the EO and federal immigration law—has been applied in a discriminatory fashion. The Supreme Court requires an individual bringing suit to challenge the application of a law to bear the burden of demonstrating a “prima facie case of discriminatory purpose.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-7 (1977). This test examines the impact of the official action, whether there has been a clear pattern unexplainable on other grounds
19

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besides discrimination, the historical background of the decision, the specific sequence of events leading up to the challenged decision, and departures from the normal procedural sequence. Id.
94. Here, President Donald Trump and senior staff have made clear that EO will be applied to primarily exclude individuals on the basis of their national origin and being Muslim. See, e.g., sources cited, supra ¶ 48, See, e.g., Donald J. Trump, Donald J. Trump Statement On Preventing Muslim Immigration, (Dec. 7, 2015), https://www.donaldjtrump.com/pressreleases/donald-j.-trump-statement-on-preventing-muslim-immigration (“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.”); Abby Phillip and Abigail Hauslohner, Trump on the Future of Proposed Muslim Ban, Registry: ‘You know my plans’, Wash. Post (Dec. 22, 2016). Further, the President has promised that preferential treatment will be given to Christians, unequivocally demonstrating the special preferences and discriminatory impact that the EO has upon Petitioners. See sources cited, supra.
95. Thus, Respondents have applied the EO with forbidden animus and discriminatory intent in violation of the equal protection of the Fifth Amendment and violated petitioners’ equal protection rights.
COUNT SIX ADMINISTRATIVE PROCEDURE ACT 96. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 97. Respondents detained and mistreated petitioners solely pursuant to an executive order issued on January 27 and 28, 2017, which expressly discriminates against Petitioners on the basis of their countries of origin and was substantially motivated by animus toward Muslims..
20

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98. The EO exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity.
99. The INA forbids discrimination in issuance of visas based on a person’s race, nationality, place of birth, or place of residence. 8 U.S.C. § 1152(a)(1)(A).
100. The INA and implementing regulations entitle Petitioners to enter the United States as LPRs.
101. Respondents’ actions in detaining and mistreating Petitioners were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of APA § 706(2)(A); contrary to constitutional right, power, privilege, or immunity, in violation of APA § 706(2)(B); 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).
COUNT SEVEN RELIGIOUS FREEDOM RESTORATION ACT 102. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 103. The EO will have the effect of imposing a special disability on the basis of religious views or religious status, by withdrawing an important immigration benefit principally from Muslims on account of their religion. In doing so, the EO places a substantial burden on petitioners’ exercise of religion in a way that is not the least restrictive means of furthering a compelling governmental interest. 104. Respondents’ actions constitute a violation of the Religious Freedom Restoration Act. See 42 U.S.C. § 2000bb-1 et seq.
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PRAYER FOR RELIEF WHEREFORE, Petitioners pray that this Court grant the following relief: (1) To the extent that any petitioners remain in custody of respondents, issue a Writ of Habeas Corpus requiring respondents to release petitioners forthwith; (2) Issue an injunction ordering respondents not to detain any petitioners, including but not limited to the John Doe petitioners, and anyone similarly situated, solely on the basis of the EO, or deny any petitioners admission to the United States solely on the basis of the EO; (3) Enter a judgment declaring that respondents’ detention of petitioners is and will be unauthorized by statute and contrary to law; (4) Issue an injunction ordering respondents to invalidate the improperly coerced I-407 forms, reinstate the petitioners’ immigrant visas and/or LPR status, return the petitioners to Dulles Airport, and admit them into the United States, subject to the laws and regulations existing prior to January 27, 2017; (6) Award petitioners their costs and reasonable attorney’s fees; and (7) Grant any other and further relief that this Court may deem fit and proper. Petitioners/plaintiffs demand a jury trial on all issues and claims so triable.
[Remainder of page intentionally left blank.]
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Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 23 of 23 PageID# 58 Respectfully submitted,

_______//s//___________________________ Simon Y. Sandoval-Moshenberg (VA 77110) Mary Bauer (VA 31388) Rebecca Wolozin (VA 89690) Elaine Poon (pro hac vice motion forthcoming) LEGAL AID JUSTICE CENTER 6066 Leesburg Pike #520 Falls Church, VA 22041 (703) 720-5605 simon@justice4all.org mary@justice4all.org becky@justice4all.org elaine@justice4all.org
Andrew J. Pincus (pro hac vice motion forthcoming) Paul W. Hughes (pro hac vice motion filed) MAYER BROWN LLP 1999 K Street, N.W. Washington, D.C. 20006 (202) 263-2000 apincus@mayerbrown.com phughes@mayerbrown.com

Date: 1/30/2017

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Case 1:17-cv-00116-LMB-TCB Document 7-3 Filed 01/30/17 Page 1 of 3 PageID# 69
Press Office U.S. Department of Homeland Security
FACT SHEET
January 29, 2017 Contact: DHS Press Office, 202-282-8010
FACT SHEET: Protecting the Nation from Foreign Terrorist Entry to the United States
WASHINGTON - The executive order signed on January 27, 2017, allows for the proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals. The United States has the world’s most generous immigration system, yet it has been repeatedly exploited by terrorists and other malicious actors who seek to do us harm. In order to ensure that the United States government can conduct a thorough and comprehensive analysis of the national security risks posed from our immigration system, it imposes a 90-day suspension on entry to the United States of nationals of certain designated countries—countries that were designated by Congress and the Obama Administration as posing national security risks in the Visa Waiver Program.
In order to protect Americans, and to advance the national interest, the United States must ensure that those entering this country will not harm the American people subsequent to their entry, and that they do not bear malicious intent toward the United States and its people. The executive order protects the United States from countries compromised by terrorism and ensures a more rigorous vetting process. This Executive Order ensures that we have a functional immigration system that safeguards our national security.
This executive order, as well as the two issued earlier in the week, provide the Department with additional resources, tools and personnel to carry out the critical work of securing our borders, enforcing the immigration laws of our nation, and ensuring that individuals who pose a threat to national security or public safety cannot enter or remain in our country. Protecting the American people is the highest priority of our government and this Department.
The Department of Homeland Security will faithfully execute the immigration laws and the President’s executive order, and we will treat all of those we encounter humanely and with professionalism.

Case 1:17-cv-00116-LMB-TCB Document 7-3 Filed 01/30/17 Page 2 of 3 PageID# 70
Authorities The Congress provided the president of the United States, in section 212(f) of the Immigration and Nationality Act (INA), with the authority to suspend the entry of any class of aliens the president deems detrimental to the national interest. This authority has been exercised by nearly every president since President Carter, and has been a component of immigration laws since the enactment of the INA in 1952.
Actions For the next 90 days, nearly all travelers, except U.S. citizens, traveling from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen will be temporarily suspended from entry to the United States. The 90 day period will allow for proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals.
Importantly, however, lawful permanent residents of the United States traveling on a valid I-551 will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate. The entry of these individuals, subject to national security checks, is in the national interest. Therefore, we expect swift entry for these individuals.
In the first 30 days, DHS will perform a global country-by-country review of the information each country provides when their citizens apply for a U.S. visa or immigration benefit. Countries will then have 60 days to comply with any requests from the U.S. government to update or improve the quality of the information they provide.
DHS and the Department of State have the authority, on a case-by-case basis, to issue visas or allow the entry of nationals of these countries into the United States when it serves the national interest. These seven countries were designated by Congress and the Obama Administration as posing a significant enough security risk to warrant additional scrutiny in the visa waiver context.
The Refugee Admissions Program will be temporarily suspended for the next 120 days while DHS and interagency partners review screening procedures to ensure refugees admitted in the future do not pose a security risk to citizens of the United States.
The executive order does not prohibit entry of, or visa issuance to, travelers with 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 Department of Homeland Security along with the Department of State, the Office of the Director of National Intelligence, and the Federal Bureau of Investigation will develop uniform screening standards for all immigration programs government-wide.
Upon resumption of the U.S. Refugee Admissions Program, refugee admissions to the United States will not exceed 50,000 for fiscal year 2017.

Case 1:17-cv-00116-LMB-TCB Document 7-3 Filed 01/30/17 Page 3 of 3 PageID# 71
The Secretary of Homeland Security will expedite the completion and implementation of a biometric entry-exit tracking system of all travelers into the United States.
Federal Government As part of a broader set of government actions, the Secretary of State will review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal.
The Department of State will suspend the Visa Interview Waiver Program and ensure all individuals seeking nonimmigrant visas undergo an in-person interview.
Transparency The Department of Homeland Security, in order to be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest will make information available to the public every 180 days. In coordination with the Department of Justice, DHS will provide information regarding the number of foreign nationals charged with terrorism-related offense or gender-based violence against women while in the United States.

 
 Case 1:17-cv-00116-LMB-TCB Document 20 Filed 02/01/17 Page 1 of 4 PageID# 116

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)

Petitioners,

)

)

v.

)

)

DONALD TRUMP, President ofthe United )

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

DECLARATION OF CONGRESSMAN DONALDS. BEYER, JR.

I, Congressman DonaldS. Beyer, Jr., declare that the following facts are true to the best

of my knowledge, information and belief:

1. I represent Virginia's 8th congressional district in the U.S. House of

Representatives and have served in that position since January 6, 2015.

2. I previously served as United States Ambassador to Switzerland and Liechtenstein

(2009-2013). In that position I oversaw the consular affairs of the embassy and became familiar

with the vetting processes by which the U.S. Department of Homeland Security grants green

cards to permanent residents, and by which visa applicants from a Middle Eastern country are

subjected to extensive research, often requiring six months to a year to complete. I also served

as Lieutenant Governor of Virginia (1990-1998), and on Virginia's Commonwealth

Transportation Board (1987-1990), in which roles I became generally familiar with the

operations of Dulles International Airport ("Dulles").

1

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3. I am familiar with the Executive Order signed by President Trump on January 27, 2017, styled "Protecting the Nation from Foreign Terrorist Entry into the United States" (the "Executive Order").
4. I am familiar with the temporary restraining order entered by the Court in this matter on January 28, 2017 (the "TRO"), which I understand requires, in part, that U.S. Customs and Border Protection (CBP) officials permit lawyers access to all legal permanent residents being detained at Dulles.
5. On January 29, 2017, I visited Dulles in response to reports that CBP officials enforcing the Executive Order were detaining travelers and, contrary to the TRO, were not permitting them access to lawyers. My congressional colleagues Gerry Connolly (VA-ll), Jamie Raskin (MD-8), and John Delaney (MD-6) also were present.
6. I spent more than four hours at Dulles, from about 1 p.m. to 5:30p.m. During that time, I spoke with numerous families awaiting the arrival of travelers from the seven countries affected by the Executive Order. In some cases, the traveler had arrived at Dulles but had been detained for questioning upon arrival; in others, the traveler had been prevented from boarding U.S.-bound planes in other countries. The families I met were anxious, grief-stricken, and confused.
7. I was moved by these interactions with families to try to uncover information about the status of detained travelers. Among other things, I investigated whether any of the many attorneys present to provide legal services had been granted access to detained travelers. Attorney after attorney complained to me that CBP would not allow them access to the holding rooms where travelers may have been detained. To my knowledge, not a single attorney was
2

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permitted access to any detained traveler. My congressional colleagues and I were also denied access to detainees.
8. Alarmed by this situation, my colleagues and I personally attempted to speak with CBP staff. We were denied access to CBP staff by Dulles police, who, while polite, informed us that they were under orders not to allow anyone to make contact with CBP. We asked the deputy police chief to request that CBP officials come to the concourse to speak with us, or allow us to come to their office, to get assurances that they would comply with the TRO. CBP did not respond to our requests.
9. As a result of these experiences, I concluded (and characterized to others) that CBP's continued enforcement of the Executive Order amounted to a constitutional crisis: four members of Congress asked CBP officials to enforce a federal court order, and we were all turned away.
10. Notwithstanding CBP's lack of responsiveness, we did what we could to assist affected families. In one instance, we learned of a detained traveler from Sudan, a permanent U.S. resident who holds a Ph.D. and works in northern Virginia. She had been detained on arrival, her green card and passport had been taken from her by CBP, and she had not been permitted access to counsel. Only after I intervened, along with four immigration attorneys and a highlighted copy of the TRO, did CBP release her. The deputy police chief who was our intermediary with CBP explained that CBP had decided to release her and so no lawyer was necessary.
11. I remain concerned about the continued enforcement of the Executive Order and its impact on members of my congressional district. To take just one example, I am aware that the Sudanese mother of a constituent who is in a coma was recently granted a visa to visit him in
3

Case 1:17-cv-00116-LMB-TCB Document 20 Filed 02/01/17 Page 4 of 4 PageID# 119 an intensive care unit in a Washington, D.C. hospital. Following issuance of the Executive Order, she was prevented from boarding her plane in Dubai to make that trip. I anticipate learning of other similarly distressing stories affecting constituents.
Pursuant to 28 U.S.C. § 1746, I declare under the penalty of perjury that the foregoing is true and correct.
3( '2017.
4

 
 Case 1:17-cv-00116-LMB-TCB Document 31 Filed 02/02/17 Page 1 of 27 PageID# 173

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al.,

)

)

Petitioners,

)

)

THE COMMONWEALTH OF VIRGINIA,

)

)

Intervenor-Petitioner,

)

)

v.

)

)

DONALD TRUMP, President of the United

)

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

BRIEF IN SUPPORT OF THE COMMONWEALTH OF VIRGINIA’S MOTION FOR A PRELIMINARY INJUNCTION

Mark R. Herring Attorney General of Virginia
Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us
Matthew R. McGuire (VSB No. 84194) Assistant Attorney General mmcguire@oag.state.va.us

Stuart A. Raphael (VSB No. 30380) Solicitor General
Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us
Counsel for Commonwealth of Virginia

February 2, 2017

Case 1:17-cv-00116-LMB-TCB Document 31 Filed 02/02/17 Page 2 of 27 PageID# 174
TABLE OF CONTENTS Page
TABLE OF CONTENTS................................................................................................................ ii INTRODUCTION .......................................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................. 1 STANDARD OF REVIEW ............................................................................................................ 5 ARGUMENT .................................................................................................................................. 5 I. The Commonwealth is likely to prevail on the merits.........................................................5
A. The detention, summary removal, and travel ban imposed on lawful permanent residents and visa holders violate their due process rights. ...................6 1. Lawful permanent residents have a property interest in their status that is protected by the Fifth Amendment................................................... 6 2. Visa holders likewise have a property interest in their status that is protected by the Fifth Amendment. ............................................................ 8 3. The Executive Order also impairs the fundamental liberty interests of lawful permanent residents and visa holders. ........................................... 10 4. The Executive Order affords no process to individuals detained under the Order. ........................................................................................ 12
B. The Executive Order was motived by animus towards Muslims and therefore violates the Establishment Clause and the Equal Protection aspects of the Due Process Clause. ........................................................................16
II. The Commonwealth, its residents, and its public universities are suffering ongoing irreparable harm. ..................................................................................................21
III. The balance of equities weighs in favor of granting the injunction...................................22 IV. The public interest strongly favors the injunction. ............................................................23 CONCLUSION............................................................................................................................. 23 CERTIFICATE OF SERVICE ..................................................................................................... 25
ii

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INTRODUCTION The Commonwealth of Virginia respectfully requests that this Court enter a preliminary injunction barring Respondents from enforcing Section 3(c) of last week’s Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive Order”). Section 3(c) violates the Due Process Clause of the Fifth Amendment as well as the Establishment Clause of the First Amendment. Absent preliminary injunctive relief, irreparable harm will continue to afflict numerous Virginia residents who hail from the seven majority-Muslim countries in question, and to whom the Federal Government (the “Government”), after thorough vetting, has already granted lawful-permanent-resident (“LPR” or “green card”) status or valid student or work visas (and accompanying spousal/family visas). The balance of equities weighs decidedly in favor of a preliminary injunction because the Virginia residents to whom the ban now applies have already been thoroughly vetted by the United States as a condition of earning their green cards or visa status, and any security concern the Government might have as to particular Virginia residents may be addressed on an individualized basis under existing law. The public interest additionally favors granting the preliminary injunction to protect the constitutional rights of Virginia’s lawful immigrant and nonimmigrant residents, as well as to mitigate the major disruption that Section 3(c) is causing to Virginia’s colleges and universities.
STATEMENT OF FACTS Respondents have applied the Executive Order to individuals with lawful permanent resident status, to persons with valid student and work visas, and to individuals who would seek asylum in the United States.1 Section 3(c) of the Executive Order provides, in pertinent part:
1 In addition, § 5 of the January 27 Executive Order suspends the U.S. Refugee Admissions Program for 120 days, indefinitely bars the admission of Syrian refugees, caps the number of
1

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(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).2
Section 3(c) effectively bans anyone from Iran, Iraq, Syria, Sudan, Libya, Yemen, and
Somalia from entering the United States for the next 90 days unless they are U.S. citizens or
“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.” Section 3(c) thus bars,
from those countries, lawful permanent residents and persons possessing valid visas entitling
them to reside in the United States, such as work and student visas (e.g., B-1, H-1B, L-1, O, F-1,
F-2, J-1), and their family members traveling on authorized visas (e.g., B-2, J-2, F-2).
Many of the relevant facts were laid out in the Commonwealth’s brief in support of its
motion to intervene (ECF No. 15) and its show-cause motion (ECF No. 19). Filed in support of
this brief is a declaration from W. Taylor Reveley, III, President of the College of William &
Mary and the Chair of Virginia’s Council of Presidents. We previously filed a declaration by
Congressman Donald S. Beyer, Jr., who represents Virginia’s 8th congressional district in the
United States House of Representatives. (ECF No. 20.)
refugees at 50,000 for 2017, and allows for “case-by-case” exceptions such as “when the person is a religious minority in his country of nationality facing religious persecution.” 2 ECF No. 7-1.
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In his declaration, President Reveley describes the disruption that § 3(c) has caused to students and faculty at Virginia’s colleges and universities, including the plight of students who have left the country and now cannot return, and students who are here now but cannot leave because they will not be readmitted.3 He describes the disruption to those schools’ operations as a result of § 3(c)’s restrictions on faculty members who reside in Virginia with LPR or work visas but who come from the seven majority-Muslim countries at issue.4 He also discusses the injury to Virginia’s economy that will be suffered as a result of restricting access by foreign students, describing the financial advantage “that foreign students bring to our local and State economies, not just during their periods of study but after graduation.”5
In his declaration, Congressman Beyer details his experience at Washington-Dulles International Airport (“Dulles”) on January 29, 2017 and the chaos that resulted from the sudden announcement and immediate implementation of the Executive Order.6 Congressman Beyer describes how, despite the Temporary Restraining Order (the “TRO”) issued by this Court the previous evening (ECF No. 3), “[a]ttorney after attorney complained . . . that [Respondents] would not allow them access to the holding rooms where travelers may have been detained,” and that “to [his] knowledge, not a single attorney was permitted access to any detained traveler.”7 Based on Respondents’ conduct, Congressman Beyer “concluded (and characterized to others) that [Respondents’] continued enforcement of the Executive Order amounted to a constitutional crisis: four members of Congress asked [Respondents] to enforce a federal court order, and we
3 Reveley Decl. ¶¶ 5-7. 4 Id. ¶¶ 8-12. 5 Id. ¶ 13. 6 Beyer Decl. ¶¶ 5-9 (ECF No. 20). 7 Id. ¶ 7.
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were all turned away.”8 That already strong evidence that Respondent Customs & Border Protection (CBP)
willfully disobeyed this Court’s TRO on attorney-access was amplified by information counsel just learned today from Edward Grass, a pro bono attorney who was present at the International Arrival area at Dulles last Saturday night. (ECF No. 30.) His first-hand account shows that Respondent Biondi, the CBP Port Director at Dulles, had physical possession of the TRO by no later than 10:44 p.m. and communicated through Brian Leuck (the Vice President and Airport Manager at Dulles) that CBP “will not comply to allow any access.”9
The Commonwealth has attempted unsuccessfully to discover the full adverse impact of § 3(c) on Virginia residents but has been hampered by the Government’s refusal to cooperate and apparent disobedience of the TRO. Last Sunday, the Attorney General of Virginia sent a letter to CBP seeking the identities of Virginia residents with green cards or student or work visas who were removed from the United States. (ECF No. 19-1.) The Government has not responded. In addition, Respondents’ apparent refusal to permit detainees access to counsel, as required by the Court’s TRO, has restricted the flow of important information to the Commonwealth. (We addressed that problem in the brief in support of our show-cause motion, ECF No. 19.)
Even without the benefit of full information from the Government, it is clear that § 3(c) is inflicting irreparable harm right now on Virginia residents. In addition to the disruption to specific students and faculty members we currently know about (on the fourth business day after the Executive Order was issued), reports arrive daily of others whose lives have been thrown into turmoil. As President Reveley put it: “Daily we discover ways, large and small, in which the
8 Id. ¶ 9. 9 Grass Decl. ¶ 4 & Ex. 1 ¶ 37 (ECF No. 30).
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Executive Order is disrupting our operations.”10 Congressman Beyer also describes one affected Virginia resident: “a constituent who is in a coma” with a “Sudanese mother . . . [who] was recently granted a visa to visit him in intensive care” but “was prevented from boarding her plane in Dubai to make that trip.”11
STANDARD OF REVIEW To obtain a preliminary injunction, the Commonwealth must show that it (1) “is likely to succeed on the merits,” (2) “is likely to suffer irreparable harm in the absence of preliminary relief,” (3) “that the balance of equities tips in [its] favor,” and (4) “that an injunction is in the public interest.”12 The court’s decision to grant a preliminary injunction is reviewed for an abuse of discretion.13
ARGUMENT I. The Commonwealth is likely to prevail on the merits.
Petitioners have pleaded a number of reasons why the Executive Order is invalid.14 In addition, the Commonwealth has filed a Complaint in Intervention (ECF No. 22) that includes most of those theories but focuses particularly on the irreparable injury that § 3(c) is inflicting on the Commonwealth, its public colleges and universities, and its residents (many of whom, of course, travel through Dulles).
In light of the exigencies giving rise to this motion, however, we focus here on perhaps the two clearest reasons why § 3(c) is illegal: it violates the Due Process Clause of the Fifth
10 Reveley Decl. ¶ 16. 11 Beyer Decl. ¶ 11 (ECF No. 20). 12 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 13 Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 192 (4th Cir. 2013) (citing Doran v. Salem Inn., Inc., 422 U.S. 922, 934 (1975)). 14 Am. Pet. ¶¶ 72-104 (ECF No. 7).
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Amendment (Count I) and the Establishment Clause of the First Amendment (Count II). A. The detention, summary removal, and travel ban imposed on lawful permanent residents and visa holders violate their due process rights. The Executive Order violates the due process rights of the hundreds of Virginia residents
who are lawful permanent residents and visa holders from Iraq, Iran, Syria, Libya, Yemen, Somalia, and Sudan. Many of the individuals who are being excluded, or who will be excluded upon their return if they leave the United States, are long-term Virginia residents. They include university professors, students, business owners, employees of business owners, and their family members. The ban imposed by § 3(c) of the Executive Order, as amply demonstrated by the events over the weekend of January 28, arbitrarily strips these individuals of their legal right to be in the United States, denying any process whatsoever.15 The Fifth Amendment demands more. “There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment . . . protects every one of these persons from deprivation of life, liberty, or property without due process of law.”16
1. Lawful permanent residents have a property interest in their status that is protected by the Fifth Amendment.
It is beyond debate that lawful permanent residents have a property interest protected by the Due Process Clause.17 In Landon v. Plasencia, the Supreme Court held that lawful permanent residents have due process rights even if they have been absent and are in the process
15 See Am. Pet. ¶¶ 2-9 (ECF No. 7). See also Beyer Decl. ¶ 11 (ECF No. 20). 16 Mathews v. Diaz, 426 U.S. 67, 77 (1976) (emphasis added). 17 Landon v. Plasencia, 459 U.S. 21, 32-34 (1982) (“[T]he United States has conceded that [a lawful permanent resident] has a right to due process . . . .”).
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of returning to the United States.18 Landon explains that, if the government seeks to eliminate a person’s status, each person’s claim must be assessed at “a fair hearing” on its own merits.19 Although due process claims will be stronger for residents who previously have “gain[ed] admission to our country and beg[an] to develop the ties that go with permanent residence,”20 every lawful permanent resident has a legally protected interest in that status.
The Court further explained that the ties and reliance interests that lawful permanent residents form with their communities are a “weighty” component in the due process analysis.21 The Court specifically pointed to the person’s “right ‘to stay and live and work in this land of freedom’” and “the right to rejoin her immediate family.”22 Given these important interests, “the courts must evaluate the particular circumstances [of the individual] and determine what procedures would satisfy the minimum requirements of due process on the re-entry of a permanent resident alien.”23 As shown below, § 3(c) deprives Virginia residents of those property and liberty interests without any process at all, simply because they have come to the United States from one of the seven majority-Muslim countries at issue.
18 Id. at 33 (“[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.” (citing Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963))). 19 Id. at 32-33. 20 Id. 21 Id. at 34. 22 Id. (citing Bridges v. Wilson, 326 U.S. 135, 154 (1945), and Moore v. City of East Cleveland, 431 U.S. 494, 499, 503-04 (1977)). 23 Id. at 35.
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2. Visa holders likewise have a property interest in their status that is protected by the Fifth Amendment.
Visa holders likewise have property interests protected by the Due Process Clause.24 To
be sure, courts have not often grappled with whether a property interest is created when a person
has successfully negotiated the lengthy visa application process and in fact been awarded a visa,
immigrated to the United States, and participated as a member of American society. But the
Supreme Court has instructed that property interests “may take many forms,” and that the
protection attaches as “a safeguard of the security interests that a person has already acquired in specific benefits.”25 “It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined.”26
In that light, visa holders’ claim to a property interest is similar to that of lawful
permanent residents. Like lawful permanent residents, visa holders have routinely relied on and built their lives around a legal status accorded them by the United States.27 Those extensive
reliance interests demonstrate that visa holders have a “legitimate claim of entitlement to,” as opposed to “a unilateral expectation of,” their visa status.28 Although various courts have found that visa applicants do not have a property interest protected by the Due Process Clause,29 those
cases are all inapplicable here. This case involves current Virginia residents who live, work, and
24 Ibrahim v. Dep’t of Homeland Sec., 62 F. Supp. 3d 909, 920 (N.D. Cal. 2014) (“A visa is permission for an alien, also known as a foreign national, to approach the borders of the United States and ask to enter.”). 25 Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 576 (1972). 26 Id. 27 See, e.g., Univ. of Va., Curry Sch. Of Educ., Faiza Jamil Works to Support Teachers, Becomes U.S. Citizen (May 14, 2013) (describing how Faiza Jamil started as a student from Kuwait at an American university before eventually becoming a nationalized citizen), https://goo.gl/KjZSSF. 28 Roth, 408 U.S. at 577. 29 See, e.g., Kerry v. Din, 135 S. Ct. 2128, 2133 (2015) (no due process right for an individual whose visa application was denied).
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attend school in Virginia under lawfully issued visas. These individuals plainly have a
constitutionally protected property and liberty interest in not having their approved visa
arbitrarily revoked based on their national origin.
What is more, the duration and extensiveness of the visa application process further
shows that individuals have a property interest in their visa once it is granted. In Ibrahim v.
Department of Homeland Security, the court summarized the extensive vetting that is part of that
cumbersome process:
First, the alien applies for a visa by submitting a visa application to a consular officer. The consular officer then evaluates whether the individual is eligible for a visa and what type of visa he or she may be eligible to receive. Second, the applicant makes an appointment for a visa interview with a consular officer at the United States embassy or a consulate abroad. Consular officers are employees of the Department of State who are authorized to adjudicate visa applications overseas. Third, an interview is conducted. Fourth, after the interview, the consular officer grants or denies the application.30 Congressman Beyer became personally familiar with the vetting process for visa applicants based on his service as the United States ambassador to Switzerland from 2009-2013.31 He
explains that “visa applicants from a Middle Eastern country are subjected to extensive research, often requiring six months to a year to complete.”32
As the Supreme Court recently observed, “[b]efore issuing a visa, the consular office must ensure the alien is not inadmissible under any provision of the INA.”33 The award of such
a visa after complying with that drawn-out vetting process entitles the recipient to present
himself for entry to the United States, and surely “secure[s] certain benefits and . . . support[s] 30 62 F. Supp. 3d at 920. 31 Beyer Decl. ¶ 2 (ECF No. 20). 32 Id. 33 Kerry, 135 S. Ct. at 2131 (emphasis added).
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claims of entitlement to those benefits.”34
Congress has recognized as much, affording persons arriving at the border but deemed
inadmissible the right to specific, extensive hearing procedures under 8 U.S.C. § 1229a.35 They
cannot be summarily sent away. Section 3 cuts the legs out of those procedural-due-process
protections, however. It bars valid visa holders from now boarding a plane to the United States
and intimidates Virginia residents who come from those majority-Muslim countries by telling
them that the Government will not readmit them if they leave this country.
3. The Executive Order also impairs the fundamental liberty interests of lawful permanent residents and visa holders.
The Executive Order also infringes on other protected liberty interests enjoyed by lawful
permanent residents and visa holders. The Supreme Court has made clear that due process “is a
flexible concept that varies with the particular situation.”36 Courts apply the Mathews v.
34 Roth, 408 U.S. at 577. Like with lawful permanent residents, the scope of process due to these individuals will depend on a variety of factors such as the length of their continuous residency in the United States under a valid visa, the presence of their family, and whether they have lawful employment. 35 8 U.S.C. § 1229a(a)(3) (“Unless otherwise specified in this chapter, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States . . . .”). See Clark v. Suarez Martinez, 543 U.S. 371, 373 (2005) (“An alien arriving in the United States must be inspected by an immigration official, and, unless he is found ‘clearly and beyond a doubt entitled to be admitted,’ must generally undergo removal proceedings to determine admissibility.”) (emphasis added) (citations omitted). To the extent Respondents claim that 8 C.F.R. § 235.3(b)(i) would provide sufficient process, that is flatly inconsistent with the statutory provisions cited by that regulation and with the Fifth Amendment. See 8 C.F.R. § 235.3(b)(i) (applying expedited removal to “aliens who are determined to be inadmissible under section 212(a)(6)(C) or (7) of the” INA). See also 8 U.S.C. § 1182(a)(6)(C) (“Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.”), § 1182(a)(6)(7) (stating, in relevant part, that an alien is inadmissible if they are “not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter”). 36 Zinermon v. Burch, 494 U.S. 113, 127 (1990).
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Eldridge balancing test to determine what the Constitution requires in a particular case:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.37 “Due process provides heightened protection against governmental interference when certain fundamental rights and liberty interests are involved.”38 Most relevant here are the right to travel, the right to pursue an occupation, and the right to acquire knowledge.39 With respect to the right to travel,40 the court in Ibrahim found that the Government had
violated the due process rights of an individual who had been admitted to the United States on a
student visa but who was later “denied a visa to return to the United States” because she had been erroneously placed on the no-fly list.41 The court concluded that the government’s actions infringed directly on her right to travel.42 Like the no-fly list in Ibrahim, the Executive Order
severely restricts the freedom of LPRs and visa holders to travel—as they were permitted to do
under their valid visas until the Executive Order issued last week.
Moreover, lawful permanent residents and visa holders have extensive reliance interests
premised on the knowledge that their visas will continue to be recognized and not arbitrarily
canceled. President Reveley describes how university professors’ careers are tied to their
research and grants at their universities and how students commit to a course of study on the 37 424 U.S. 319, 335 (1976). 38 Ibrahim, 62 F. Supp. 3d at 928 (citing Washington v. Glucksberg, 521 U.S. 702, 720 (1997)). 39 Id. See also Meyer v. Nebraska, 262 U.S. 390, 399 (1923). 40 Kent v. Dulles, 357 U.S. 116, 125 (1957). 41 62 F. Supp. 3d at 911, 927-28. 42 Id.
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assumption that their student visas will not be arbitrarily revoked.43 Thus, in addition to the right to travel, the arbitrary deprivation of a person’s legal status implicates the right to pursue employment and education.44 Because § 3(c) directly infringes those rights and reliance interests, the Due Process Clause applies.
4. The Executive Order affords no process to individuals detained under the Order.
Section 3(c) provides no process at all to the Virginia residents whose green cards and visas were effectively canceled by last Friday’s surprise order. Petitioners claim that CBP has coerced or attempted to coerce arriving air passengers to relinquish their legal right to enter the United States without affording them an individualized hearing or access to counsel as ordered by this Court.45 Intervenors Nasreldin and Fadul complain that they suffered the same mistreatment by CBP at Dulles. Fadul, a Sudanese national, was traveling on a K-1 visa to meet her fiancé, an American citizen. But when she arrived at Dulles, her travel documents and telephone were seized; she was not allowed to call her fiancé or anyone else; she was coerced into signing documents waiving her visa rights; she was deported to Addis Ababa later that evening; and, adding insult to injury, the airline kept her passport to coerce her into paying for the return flight.46
The undersigned counsel for Virginia do not know how many Virginia residents were removed from the United States before the TRO was entered, or whether Respondents ceased
43 See Reveley Decl. ¶¶ 6, 8, 11-12. 44 See Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 238-39 (1957) (“A state cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment.”); Meyer, 262 U.S. at 399. 45 See Am. Pet. ¶¶ 2-9 (ECF No. 7). 46 ECF No. 27 at 6 (PageID# 153).
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their removal activities following the TRO.47 The Government has failed to answer our request.48
So far as has come to counsel’s attention, the only written guidance specifying any
“process” under § 3(c) is a recent press statement from Secretary Kelly, issued on Sunday night, January 29.49 Secretary Kelly decreed that “[i]n applying the provisions of the president’s
executive order, I hereby deem the entry of lawful permanent residents to be in the national interest.”50 How many Virginia lawful permanent residents were removed from the United
States before the Government changed its mind about their security risk is still unknown. The
Government has not answered the Commonwealth’s questions about that. And the Executive
Order itself has not been amended, so it is unclear if Kelly’s actions are in derogation of it.
That Sunday Press Release was followed by a televised press conference on Tuesday, January 31.51 Respondent McAleenan represented that CBP, in the first 72 hours after the
Executive Order, had denied boarding to 721 visa holders in the seven countries, preventing
travelers even from presenting themselves for entry to the United States, as they were entitled to do under their visas.52 That clearly constitutes insufficient process for returning Virginia
47 Beyer Decl. ¶¶ 7-9 (ECF No. 20). 48 See Letter from Attorney General Mark R. Herring to Secretary John Kelly, et al. (Jan. 29, 2017), ECF No. 19-1. 49 Statement by Secretary John Kelly on the Entry of Lawful Permanent Residents into the United States (Jan. 29, 2017) [hereinafter Press Release], https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanentresidents-united-states. 50 Id. 51 Homeland Security Secretary On Trump’s Travel Ban Orders—Full News Conference (Jan. 31, 2017), https://www.youtube.com/watch?v=pkdF5SSk8aQ. 52 Id. at 5:11. See also Ron Nixon, 721 – not 109 – denied entry to the US under Trump’s travel ban, N.Y. Times (Feb. 1, 2017), https://goo.gl/00Fju7 (“A far larger number of people were affected by President Donald Trump’s executive order on refugees than he initially said,
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residents. McAleenan exacerbated the appearance of arbitrariness about whether the Executive
Order applies to LPRs. He said they are “technically covered,” but that DHS “worked quickly with counsel” to devise the class-based exemption for LPRs as a blanket waiver.53
In any case, the Press Release and the Government’s flip-flopping shows just how hastily
the order was conceived and how arbitrarily it has been implemented. Just because the
Government has said that LPRs will be readmitted (or is it only readmitted by “waiver”?),
nothing prevents Respondents from resuming their illegal exclusion of Virginia’s green card
holders based on national origin. Indeed, a press release plainly does not carry the force of law.54 And in this case, the Press Release appears to have been issued only after litigation was
filed in numerous jurisdictions challenging the order’s validity. The rule of law is plainly
undermined when major immigration laws can be changed with the snap of an executive’s fingers, subject to being snapped back on a later date.55
The Executive Order plainly provides no individualized process, let alone process that
Department of Homeland Security officials acknowledged Tuesday. Trump posted on Twitter that only 109 people were detained or denied entry into the United States after his order, but during a news briefing at the Customs and Border Protection agency’s headquarters Tuesday, officials said that 721 people had been denied boarding for the United States after it began enforcing the travel ban.”). 53 Full News Conference, supra note 51, at 22:47-23:41 (statement of Director McAleenan). 54 See, e.g., Molycorp, Inc. v. EPA, 197 F.3d 543, 545-46 (D.C. Cir. 1999) (“The document (which was not published in the Federal Register) states that it ‘is intended solely to provide information to the public and the regulated community . . . . We take this to mean only . . . that the agency is advising the public as to its present enforcement inclinations—not that the document itself would be given any weight at all in enforcement proceedings.”). 55 We don’t know if the Government will claim that its new position on LPRs somehow moots that part of the case. It plainly does not. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (“It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. If it did, the courts would be compelled to leave the defendant . . . free to return to his old ways.”) (citations and quotation marks omitted).
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meets the Mathews v. Eldridge test. Considering “the 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 safeguards, and the interest of the government in using the current procedures rather than additional or different procedures,”56 the one-size-fits-all
blanket exclusions based on national origin cannot pass muster.
With respect to residents currently present in Virginia based on an LPR or visa, or who
present themselves at the border with valid visas predating the Executive Order, those
individuals must be given the opportunity to dispute the characterization that they personally
pose a national security risk (a determination Respondents have made based on national origin). Those Virginia residents are entitled to an individualized, pre-deprivation hearing.57 And for
individuals possessing a valid visa but who have been denied their right to board a plane bound
for the United States, those individuals must be permitted to present themselves at the border and
similarly be afforded a hearing to contest the arbitrary determination that they are a national
security risk. It would be fundamentally unfair and discriminatory to permit the Respondents to
summarily revoke an individual’s legal right to be in the United States for no reason other than that they were born or naturalized in, or traveled through, a majority-Muslim country.58
56 Landon, 459 U.S. at 34. 57 See Fuentes v. Shevin, 407 U.S. 67, 82 (1972) (“The right to a prior hearing has long been recognized by this Court under the Fourteenth and Fifth Amendments. . . . [T]he Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect.”). See also Kerry, 135 S. Ct. at 2144 (Breyer, J., dissenting) (“These procedural protections help to guarantee that government will not make a decision directly affecting an individual arbitrarily but will do so through the reasoned application of a rule of law.”). 58 See Reno v. Flores, 507 U.S. 292, 344 n.30 (1993) (Stevens, J., dissenting) (discussing Korematsu v. United States, 323 U.S. 214 (1944), and the decision to uphold “the exclusion from particular ‘military areas’ . . . all persons of Japanese ancestry without a determination as to whether any particular individual actually posed a threat of sabotage or espionage” in connection
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B. The Executive Order was motived by animus towards Muslims and therefore violates the Establishment Clause and the Equal Protection aspects of the Due Process Clause.
The Commonwealth is also likely to succeed on its Establishment Clause and Equal
Protection challenges because of the overwhelming evidence that the Executive Order resulted
from animus towards Muslims. Whether a governmental action is motivated by hostility towards
a particular religious group is a touchstone under both claims.
With respect to the Establishment Clause, the Supreme Court explained in Larson v.
Valente that “[t]he clearest command of the Establishment Clause is that one religious
denomination cannot be officially preferred over another.”59 “The First Amendment mandates
governmental neutrality between religion and religion . . . . The State may not adopt programs or
practices . . . which aid or oppose any religion . . . . This prohibition is absolute.”60 Where a
“law grant[s] a denominational preference,” the Supreme Court “treat[s] the law as suspect and
. . . appl[ies] strict scrutiny in adjudging its constitutionality.”61
Similarly, the Supreme Court has made clear that the Due Process Clause of the Fifth
with the detention of juvenile immigrants and noting that “the Court should proceed with extreme caution when asked to permit the detention of juveniles when the Government has failed to inquire whether, in any given case, detention actually serves the Government’s interest . . . .”) (emphasis added). 59 456 U.S. 228, 244 (1982). 60 Awad v. Ziriax, 670 F.3d 1111, 1127 (10th Cir. 2012) (quoting Larson, 456 U.S. at 246). See also Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 728 (1994) (Kennedy, J., concurring) (“[T]he Establishment Clause forbids the government to use religion as a line drawing criterion. In this respect, the Establishment Clause mirrors the Equal Protection Clause. Just as the government may not segregate people on account of their race, so too it may not segregate on the basis of religion.”). 61 Larson, 456 U.S. at 246. See also Lynch v. Donnelly, 465 U.S. 668, 694 (1984) (O’Connor, J., concurring) (“Every government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion. In making that determination, courts must keep in mind both the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values may be eroded.”).
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Amendment has an “equal protection component,” and also that noncitizens “com[e] within the ambit of” that Clause.62 Under standard Equal Protection jurisprudence, “classifications based
on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.”63 The blanket assumption—that Virginia residents from the seven majority-
Muslim countries pose some sort of terror threat—is an ugly and poisonous form of bigotry that
cannot possibly survive strict scrutiny.
But even if the Court were to apply lesser scrutiny in consideration of the Government’s plenary control over immigration, the result would be the same.64 Where governmental action is
principally motivated by animus towards a religious group, the action denies equal protection of the law.65 As the Court recently said in Windsor, “[t]he Constitution’s guarantee of equality
‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”66 Just as Windsor and Romer
invalidated laws based on animus towards gay people, even under the rational-basis tests, the
religious animus here cannot be justified either.
62 Harris v. McRae, 448 U.S. 297, 297 (1980); Kwai Fun Wong v. United States, 373 F.3d 952, 974 (9th Cir. 2004). See also Jean v. Nelson, 472 U.S. 846, 874 (1985) (Marshall, J., dissenting) (“[T]he principle that unadmitted aliens have no constitutionally protected rights defies rationality. Under this view, the Attorney General, for example, could invoke legitimate immigration goals to justify a decision to stop feeding all detained aliens. He might argue that scarce immigration resources could be better spent by hiring additional agents to patrol our borders than by providing food for detainees. Surely we would not condone mass starvation.”). 63 Graham v. Richardson, 403 U.S. 365, 372 (1971). 64 See, e.g., Zadvydas v. Davis, 533 U.S. 678, 695 (2001). 65 See, e.g., United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (“In determining whether a law is motivated by an improper animus or purpose, ‘[d]iscriminations of an unusual character’ especially require careful consideration.”) (citation omitted); Romer v. Evans, 517 U.S. 620, 632 (1996) (“[I]ts sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus towards the class it affects; it lacks a rational relationship with legitimate state interests.”). 66 Windsor, 133 S. Ct. at 2693.
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Indeed, the President and his advisers have laid bare that the purpose of the Executive Order is to ban Muslims and to tilt the balance of immigration to the United States in favor of Christians. In 2015, then-candidate Trump issued a statement unequivocally “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.”67 In that statement, Trump revealed his belief that Muslims as a class are “people that believe only in Jihad, and have no sense of reason or respect for human life.”68 And when explaining what the immigration process would look like “for a Muslim noncitizen attempting to enter the” United States, Trump stated, “‘That would be probably—they would say, are you Muslim?”69 When the journalist inquired, “‘And if they said yes, they would not be allowed in the country[?],’” Trump responded “‘That’s correct.’”70
Just last week, after the Executive Order had issued, former New York Mayor Rudy Giuliani, one of the President’s advisers, revealed that the President had asked him to craft a Muslim ban that would withstand judicial scrutiny.71 And at DHS’s January 31 press conference, Secretary Kelly explicitly tied the Executive Order to the President’s promise as a candidate; Kelly explained that he knew the Order was coming and that “[t]his whole approach
67 Donald Trump proposes “total and complete shutdown of Muslims entering the United States,” http://www.vox.com/2015/12/7/9867900/donald-trump-muslims (last visited Jan. 31, 2017). 68 Id. 69 Trump not bothered by comparisons to Hitler, Politico (Dec. 8, 2015 7:51 a.m.), http://www.politico.com/trump-muslims-shutdown-hitler-comparison. 70 Id. 71 Trump asked for a ‘Muslim ban,’ Giuliani says – and ordered a commission to do it ‘legally’, The Wash. Post (Jan. 29, 2017) (“‘So when [Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”), https://goo.gl/VL155w.
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was part of what then-candidate Trump talked about for a year or two.”72 Steve Bannon, President Trump’s Chief Strategist, is publicly credited with developing the Executive Order.73 On a radio program in November 2015, when he was the Executive Chairman of Breitbart News, Bannon questioned why refugees from majority-Muslim countries should be admitted to the United States, saying that the money spent vetting them would better be spent in this country.74 And on the same day the Executive Order issued, President Trump was asked the following question about the Executive Order’s refugee exemption for religious minorities: “As it relates to persecuted Christians, do you see them as kind of a priority here?”; he answered “Yes.”75
A claim requiring proof of intentional discrimination seldom has a stronger evidentiary foundation than what we already have here (before discovery has even commenced), because the evidence in this case comes from the very mouth of the person who promulgated the discriminatory policy. Indeed, President Trump just said on January 31 that he keeps his campaign promises: “I am a man of my word. I will do as I say.”76 So as to then-Candidate Trump’s promised Muslim ban, there is plainly no reason not to take him at his word. Indeed, his word is echoed by the words of his senior advisors. And that is true even if the President and senior advisors now claim—as they do post hoc—that the Executive Order is really not intended to be a Muslim ban after all.
72 Full News Conference, supra note 51, at 11:24-42 (statement of Sec. Kelly) (emphasis added). 73 Frances Stead Sellers & David A. Fahrenthold, ‘Why let ’em in?’ Understanding Bannon’s worldview and the policies that follow,” The Wash. Post (Jan. 31, 2017, at 8:05 p.m.), https://goo.gl/IPIV14. 74 Id. 75 Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees, CBN News (Jan. 27, 2017), https://goo.gl/DTUdWo. 76 Ron Elving, Gorsuch Pick For Top Court Fulfills Trump Campaign Pledge, Confirms Democrats’ Fears, NPR (Feb. 1, 2017, 3:37 a.m.), https://goo.gl/XOvzqK; President Trump Announces Supreme Court of the United States Nominee, at 33:18, https://goo.gl/DB5Ods.
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Apparently recognizing the unconstitutional nature of a ban motivated by animus towards
Muslims, then-Acting Attorney General Sally Yates instructed Department of Justice attorneys
on Monday night not to defend the Executive Order, believing that “the intent” of the order
appeared to “single out people based on religion” and that “‘[t]he intent was clear from the face of it.’”77 She was promptly fired by the President.78
No post-hoc excuse that the Government might now offer can justify what operates as a
Muslim ban. The two purposes listed in the Order are (1) national security, and (2) to reduce
“investigative burdens on relevant agencies” during the visa-adjudication review process.
Banning all individuals from seven countries from the United States plainly is not narrowly tailored to either purpose.79 With respect to national security, there is a “near-absence of terror
attacks” perpetrated by lawful permanent residents or visa holders from Iran, Iraq, Syria, Libya, Somalia, Yemen, or Sudan in the United States.80 Thus, it is a vast overreach to claim that all
members of those majority-Muslim countries pose national security risks, let alone Virginia residents with strong ties to the Commonwealth.81 And with respect to the “investigative
burdens on relevant agencies,” there is no reason to believe that the number of visa applications
77 Trump’s Talk About Muslims Led Acting Attorney General to Defy Ban, N.Y. Times (last visited Jan. 31, 2017), https://www.nytimes.com/2017/01/31/us/politics/sally-yates-trumpimmigration-ban.html. See also Yates Memo (Jan. 30, 2017), http://documents.latimes.com/message-acting-attorney-general/. 78 Michael D. Shear, Trump Fires Acting Attorney General Who Defied Him, N.Y. Times (Jan. 30, 2017), https://goo.gl/kxLYJo. 79 State Dep’t Memo at 1 (“This ban, which can only be lifted under conditions which will be difficult or impossible for countries to meet, will not achieve its stated aim of to protect the American people from terrorist attacks by foreign nationals admitted to the United States.”), https://goo.gl/JCAUdL. 80 Id. at 2. 81 See id. at 5 (“We do not need to place a blanket ban that keeps 220 million people—men, women, and children—from entering the United States to protect our homeland.”).
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from those seven countries will overwhelm the Executive branch. No facts have been offered suggesting that an inordinately large number of visa applications come from those countries, or that the individuals responsible for conducting the review are instrumental in reviewing those applications. Furthermore, the Government’s abrupt about-face in applying the Executive Order to LPRs unwittingly admits that the Executive Order was not narrowly tailored at all.
In short, the intent of the Executive Order is to discriminate against persons from Iran, Iraq, Syria, Libya, Somalia, Yemen, and Sudan on the basis that they are more likely than not to be Muslim and more likely to be terrorists. Because the Executive Order was motivated by animus to a particular religious group, the Order is very likely to be found unconstitutional under the Establishment Clause and under the Equal Protection aspects of the Due Process Clause. II. The Commonwealth, its residents, and its public universities are suffering ongoing
irreparable harm. The Commonwealth, its residents, and its public universities are suffering irreparable harm that can be stanched only by a preliminary injunction. With respect to the Establishment Clause violation, “[t]he Supreme Court has explained that ‘loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’”82 With respect to the Due Process violation, Virginia residents are suffering ongoing discrimination on account of their national origin that, in light of the Government’s sovereign immunity and the incalculable injury to dignity and freedom, cannot be redressed by a money-damages award.83 As long as § 3(c) of the Executive Order remains in effect, the Government denies Virginia residents their fundamental due process rights and subjects them to arbitrary detention, 82 Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). 83 See RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210 (10th Cir. 2009). See also Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984) (irreparable harm is harm that cannot be prevented or fully rectified by judgment after trial).
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exclusion, and expulsion from the country. Virginia residents cannot board planes bound for the United States or leave the country without fear of not being barred from returning. Some remain stranded in foreign airports.84 Students denied entry or detained cannot attend classes, causing them to fall behind or abandon their course of study.85 Students currently present in the United States are effectively barred from leaving no matter the circumstances—like going home in the event of a family member’s illness or death—under penalty of being denied reentry.86 Many university faculty members who are unable to travel will be unable to satisfy the obligations of their grants.87 These injuries are happening now and are not fanciful or speculative.88 III. The balance of equities weighs in favor of granting the injunction.
The balance of equities plainly weighs in favor of granting the injunction. The Fourth Circuit has held that “‘a state is in no way harmed by issuance of a preliminary injunction which prevents the state from enforcing restrictions likely to be found unconstitutional. If anything, the system is improved by such an injunction.’”89 Because the Commonwealth is likely to succeed in its challenges to the Executive Order, Respondents cannot claim to be harmed by being forced to stop their unconstitutional actions.
And as should be plain from what we have already said, the notion is indefensible that enjoining § 3(c) as applied to Virginia residents would somehow threaten the Government’s legitimate security interests. These green card and visa holders who reside in Virginia have 84 Am. Pet. ¶ 10. 85 Reveley Decl. ¶¶ 5-6. 86 Reveley Decl. ¶¶ 7, 14. 87 Reveley Decl. ¶ 12. 88 See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991) (irreparable harm is actual and imminent). 89 Centro Tepeyac, 722 F.3d at 191 (quoting Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002)).
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already been vetted and approved for travel to the United States. If any particular person poses a security risk, existing law amply allows the Government to take protective action. IV. The public interest strongly favors the injunction.
The public interest further warrants enjoining the Executive Order. As the Fourth Circuit has made clear, “upholding constitutional rights surely serves the public interest.”90 And the public interest is further served by not disrupting the lives of students, teachers, workers, and other Virginia residents, pending a trial on the merits.
CONCLUSION This is a monumental case involving a monumental abuse of Executive Power. So it is worth remembering another monumental case, Plessy v. Ferguson, that enshrined in American law—for more than a half century—the approval of government-mandated racial segregation.91 The majority in Plessy reasoned that government-mandated segregation “does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens.”92 We admire the first Justice Harlan for putting the lie to that claim: “Every one knows” what was being justified, he said.93 The same is true here. And what Justice Harlan said next may be even more important for Twenty-First Century Americans to remember: “the seeds of race hate” should not be “planted under the sanction of law.”94
90 Id. (citation omitted). 91 163 U.S. 537 (1896). 92 Id. at 556-57 (Harlan, J., dissenting). 93 Id. 94 Id. at 560.
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In this case, the seeds of hate towards Muslims are “planted under the sanction” of the Executive Order. Those seeds must be rooted out, as soon as possible, lest they germinate and poison more Americans. The Executive Order was conceived in bigotry and does not reflect who we are as a people.
* * * The Court should issue a preliminary injunction in the form attached.
Respectfully submitted, COMMONWEALTH OF VIRGINIA,

By:

/s/

Stuart A. Raphael (VSB No. 30380)

Solicitor General

Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us

Mark R. Herring Attorney General of Virginia

Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us

Matthew R. McGuire (VSB No. 84194) Assistant Attorney General mmcguire@oag.state.va.us

Counsel for Commonwealth of Virginia

24

Case 1:17-cv-00116-LMB-TCB Document 31 Filed 02/02/17 Page 27 of 27 PageID# 199 CERTIFICATE OF SERVICE
I hereby certify that on February 2, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael
25

 
 Case 1:17-cv-00116-LMB-TCB Document 32 Filed 02/02/17 Page 1 of 7 PageID# 204

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)

Petitioners,

)

)

v.

)

)

DONALD TRUMP, President of the United )

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

DECLARATION OF W. TAYLOR REVELEY III I, W. Taylor Reveley III, declare that the following facts are true to the best of my knowledge, information and belief: 1. I am president of the College of William & Mary (“William & Mary” or “the university”), and have served in that capacity since September 2008. I had previously served as interim president of the university for six months, and as dean of William & Mary Law School for a decade. Before joining William & Mary, I practiced law at Hunton & Williams LLP for almost three decades, including nine years as the firm’s managing partner. My academic expertise focuses on the constitutional division of the war powers between the President and Congress. 2. I am also the current Chair of the Council of Presidents, a group consisting of the presidents and chancellors of Virginia’s 14 publicly supported universities and colleges and 23 community colleges. As a member of that group for the past eight years, and now as its chair, I am keenly aware of the challenges and opportunities facing Virginia’s public institutions of higher education, including the competition for talented students and faculty, the
1

Case 1:17-cv-00116-LMB-TCB Document 32 Filed 02/02/17 Page 2 of 7 PageID# 205
internationalization of the university experience, the importance of diversity on campus, and the financial realities of public education.
3. I am familiar with the Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” signed by President Trump on January 27, 2017 (the “Executive Order”).
4. I am deeply concerned about the disruptive impact that the Executive Order has had, is having, and will have on William & Mary and Virginia’s other public universities and colleges. I am primarily concerned for three reasons.
5. First, the Executive Order imposes severe limitations on the travel of students and faculty at Virginia institutions who are from the countries covered by the Executive Order. Based on what I have learned from other university presidents and representatives, we believe that the affected graduate and undergraduate students number in the hundreds, including more than 350 at just Virginia Commonwealth University, Virginia Tech, George Mason University, the University of Virginia, and William & Mary. There are numerous other affected students in Virginia’s other public universities and community colleges, as well as dozens of affected employees and faculty.
6. The impact of the Executive Order has fallen most dramatically on the students who were abroad when the Executive Order was issued and who have now been denied reentry to the United States. I am aware of two students at Virginia schools who have been prevented from returning to the United States to resume their studies: an Iranian doctoral student who had been approved and cleared for a visa to return to the United States to defend his dissertation, but who was blocked from doing so by the Executive Order; and a Libyan undergraduate who was
2

Case 1:17-cv-00116-LMB-TCB Document 32 Filed 02/02/17 Page 3 of 7 PageID# 206
traveling for family reasons and was prevented from boarding a plane from Istanbul back to the United States and remains stranded in Turkey.
7. Many other affected students must refrain from leaving the United States for fear of not being able to return. Many universities are advising their affected students and scholars not to travel abroad at all. Even if reentry were ultimately possible for foreign students who leave the country, I am 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. Not only will affected students and faculty not be able to travel home to see their families, they may also have to forfeit research opportunities and projects abroad. For instance, I have learned that some Iranian-born faculty and students at a Virginia university (some of whom are naturalized citizens and have given up their Iranian citizenship) have already canceled their plans to present their work at an international conference on engineering because of the Executive Order.
8. If the Executive Order is not enjoined until its requirements and constitutionality can be clarified, I am concerned that our universities will not be able to attract some of the academic talent that enriches our campuses – both faculty and students alike. Foreign-born faculty who are here on visas typically have specialized expertise that cannot easily be replaced. University hospitals and other facilities also compete for talented medical professionals, including foreign-born doctors and residents. With a national deadline approaching in midFebruary for medical school graduates to “match” with academic hospitals, it is possible that they will lose excellent candidates as a result of the Executive Order, and may end up with understaffed clinical programs serving our communities.
3

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9. Virginia universities have already felt the effect of the Executive Order on visiting scholars. For instance, in the coming weeks one university was expecting three foreign scholars from one of the affected countries. Despite having valid J-1 visas, and having visited the United States previously, they have abandoned their plans in light of the Executive Order. At another university, two other visiting scholars with J-1 visas who were scheduled to be here for the spring semester have canceled their plans.
10. Bringing international students to campus is a key aspect of efforts to make our universities global in caliber and perspective. William & Mary, for instance, has been recognized by NAFSA: Association of International Educators for its commitment to international education. More than 800 international students and scholars from over 65 countries came to William & Mary in 2016. The limitations imposed by the Executive Order threaten to undo some of the progress we, and other public universities in Virginia, have made in this area.
11. Second, I am concerned about the financial impact that the Executive Order will have on Virginia’s public institutions of higher learning, whose budgets are already strained. We depend on tuition dollars from out-of-state and out-of-country students, so the loss of revenue – whether due to an affected student’s decision to withdraw in light of the travel restrictions, or the inability even to reenter the country – could have an effect. For instance, the two students stranded abroad may be forced to withdraw from their programs if they are not allowed to reenter. At other schools, I am aware that two Sudanese applicants have had to abandon plans to enroll in language programs here, and that a handful of Iranian students have withdrawn applications to engineering programs. While I expect to learn of other specific examples, the amount of lost tuition revenue as a result of the Executive Order is not quantifiable, given that
4

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many foreign students may not apply to Virginia schools in the first place due to uncertainty about the reach of the Executive Order.
12. Continued enforcement of the Executive Order may also jeopardize some of the grants and contracts that fund the research conducted at William & Mary and Virginia’s other research universities. Because State support for higher education is dependent on sometimes unstable economic conditions, we increasingly look to grants (as one of a number of revenue streams) to sustain ongoing research and programs that fund the work not only of faculty but also graduate students. William & Mary and other schools will need to investigate and confront the Executive Order’s ramifications on these programs. But many administrators are concerned that restrictions on some scholars’ ability to travel will cause a gradual but significant decline in research collaborations and funding. I fear that will further erode public universities’ ability to attract compelling talent to our universities.
13. On a related note, I am also conscious of the financial impact that foreign students bring to our local and State economies, not just during their periods of study but after graduation. Many foreign students remain here following graduation, sometimes in Optional Practical Training programs, working in (and even starting) businesses, as well as in academia. One notable foreign student who continues to contribute to Virginia’s economy is my colleague Ángel Cabrera, the president of George Mason University, the largest public university in Virginia. The Executive Order risks our ability to retain foreign students’ talents and expertise, both in the short run as well as long term.
14. Finally, there is the anxiety, confusion, and distress the Executive Order has caused in university communities. Affected faculty and students are unsure whether they should take the trips they had planned to visit family and fulfill research obligations, whether future trips
5

Case 1:17-cv-00116-LMB-TCB Document 32 Filed 02/02/17 Page 6 of 7 PageID# 209
should be planned, and whether members of their family or research partners will be able to visit the United States. Their concern is heightened by the potential that the list of countries covered by the Executive Order will grow to include other Middle Eastern or majority-Muslim countries. Indeed, since the Executive Order was issued, some universities have experienced an uptick in students, employees, and faculty using their counseling services. The cost of providing these additional services is another financial impact.
15. There is also anxiety among administrators that the Executive Order will undermine the safety of our many American students studying abroad. William & Mary alone sends more than 750 undergraduates abroad each year, to over 50 countries; about half of our college students study abroad by the time they graduate. Other Virginia schools also have active study-abroad programs, and Virginia Commonwealth University has an entire campus in Qatar that hosts exchange programs with students in the United States. Concern exists that the Executive Order, by barring certain foreign students and scholars from entering the United States, will inflame anti-American sentiment and jeopardize not only our relationships with programs in host countries but also the safety of our students studying abroad. I am aware of several universities that are reviewing their study-abroad programs in light of this concern.
16. Although the concerns described above are the primary ones that I and other leaders in the university community are facing, I emphasize that they are not the only ones. Daily we discover ways, large and small, in which the Executive Order is disrupting our operations. The amount of administrators’ time and attention that must be devoted to addressing these issues, instead of to other productive uses, is a final negative consequence of the Executive Order.
6

Case 1:17-cv-00116-LMB-TCB Document 32 Filed 02/02/17 Page 7 of 7 PageID# 210

Pursuant to 28 U.S.C. § 1746, I, W. Taylor Reveley III, declare under the penalty of perjury that the foregoing is true and correct.

Executed on February 1, 2017.

W. TAYLOR REVELEY III

7

 
 Case 1:17-cv-00116-LMB-TCB Document 33 Filed 02/02/17 Page 1 of 5 PageID# 211

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)

Petitioners,

)

)

v.

)

)

DONALD TRUMP, President of the United )

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

VIRGINIA’S RESPONSE TO THE REQUEST TO HOLD THE AZIZES’ CASE IN ABEYANCE The Aziz Petitioners and Respondents (the “Government”) request that the Court “hold Petitioners’ claims in this case in abeyance.” (ECF No. 25.) While the Commonwealth has no objection to the Azizes’ claims’ being held in abeyance, in light of the Government’s apparent willingness to allow the Azizes to return to the United States, Virginia rejects any implication that this development somehow moots the case or justifies continuing tomorrow’s hearing on pending motions. Those motions include the Commonwealth’s motion to intervene and its motion for a show-cause order. There are three reasons why Virginia could not agree to continue those motions to February 10, 2017, when the Court is now scheduled to hear Virginia’s motion for a preliminary injunction (ECF Nos. 23 (motion), 31 (brief)). First, putting off the intervention motion would place the Commonwealth in the untenable position on February 10 of having to argue for a preliminary injunction without knowing if Virginia is yet “in” the case. Given the critical importance of this case to Virginia, its colleges and universities, and its residents, the

1

Case 1:17-cv-00116-LMB-TCB Document 33 Filed 02/02/17 Page 2 of 5 PageID# 212
Commonwealth needs to know the answer to the intervention question as soon as possible, and the Government was unwilling to consent to Virginia’s intervention as a condition of continuing the show-cause motion to February 10.
Second, the Government’s conduct suggests that it may be maneuvering to delay the case in order to avoid having to account for whether it complied with this Court’s temporary restraining order (TRO) (ECF No. 3). The TRO, issued last Saturday evening, required Respondents to permit those arriving passengers held at Dulles International Airport to have access to counsel if they were lawful permanent residents (LPRs). As shown by the declarations of Congressman Donald S. Beyer, Jr. (ECF No. 20) and pro-bono attorney-witness Edward Grass (ECF No. 30), Customs and Border Protection (CBP) officials evidently decided after receiving the TRO that “‘they will not comply to allow any access.’”1
Virginia also has been trying since last weekend to learn from the Government the names of Virginia residents who remain detained or who have been removed from the United States. (See ECF No. 19-1.) Respondents have failed to respond, and their failure to permit arriving LPRs to confer with counsel has further restricted the flow of information to the Commonwealth. Had the army of pro bono lawyers who descended on Dulles last weekend been allowed to meet with the LPRs being detained there, the public and the Commonwealth would know much more about what actually transpired in the restricted area, where those arriving passengers were being held incommunicado.
In light of the fact that LPRs are still attempting to return to the United States, if the Government is violating the access-to-counsel requirements of the TRO, this Court and the Commonwealth need to know that now—not more than a week from now. Virginia’s proposed
1 Grass Decl. ¶ 4, Dkt. No. 30. See also Beyer Decl. ¶¶ 7-9, Dkt. No. 20. 2

Case 1:17-cv-00116-LMB-TCB Document 33 Filed 02/02/17 Page 3 of 5 PageID# 213
show-cause order requires the Government’s response by next Tuesday, which is reasonable under the exigent circumstances presented. The Government has been holding press conferences claiming that it promptly complied with this Court’s TRO.2 It has time to explain why it appears that not even a single LPR detained at Dulles has been allowed to see a lawyer.
Third, the Government appears to be proceeding on the incorrect assumption that it can moot Virginia’s intervention motion if it rapidly settles with any named petitioners (and with new intervenors) before the Court grants intervention. The Fourth Circuit has made plain that intervention is proper at any time before the original parties’ case “is fully resolved.”3 The Azizes’ case will not be fully resolved for some time. More importantly, “the case was live when [Virginia] moved to intervene” this past Tuesday, and that is all that is necessary.4 So even if the Government can quickly whisk the Aziz brothers back to the United States in consideration of their promise to hold their claims in abeyance until they arrive on U.S. soil, and then to dismiss them with prejudice, it does not moot Virginia’s case or address Virginia’s complaint that the unconstitutional Executive Order continues to inflict irreparable harm on the Commonwealth and its residents.
We acknowledge and are grateful that the Government is willing to grant waivers to assist LPRs and visa holders like the Azizes who were originally blocked entry to the United States by the Executive Order. That’s a start, even though Virginia maintains that the Executive Order is unconstitutional and that those travelers should not have been categorically barred in the
2 E.g., Homeland Security Secretary On Trump’s Travel Ban Orders—Full News Conference (Jan. 31, 2017), at 28:30 (“[A]s soon as we got it [Brinkema’s TRO] we developed a process to give access to counsel . . . . and it was input immediately.”) (statement of Acting Comm’r McAleenan). 3 CVLR Performance Horses, Inc. v. Wynne, 792 F.3d 469, 475 n.2 (4th Cir. 2015) (emphasis added). 4 Id.
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Case 1:17-cv-00116-LMB-TCB Document 33 Filed 02/02/17 Page 4 of 5 PageID# 214

first place, based solely on their national origin.

In short, while the Commonwealth does not object to holding the Aziz brothers’ claims in

abeyance while those gentlemen are rightfully returned to U.S. soil, it is important for the serious

issues raised in Virginia’s case to be adjudicated as soon as this Court’s fair-minded

consideration will allow.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA,

By:

/s/

Stuart A. Raphael (VSB No. 30380)

Solicitor General

Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us

Mark R. Herring Attorney General of Virginia

Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us

Matthew R. McGuire (VSB No. 84194) Assistant Attorney General mmcguire@oag.state.va.us

Counsel for Commonwealth of Virginia

4

Case 1:17-cv-00116-LMB-TCB Document 33 Filed 02/02/17 Page 5 of 5 PageID# 215 CERTIFICATE OF SERVICE
I certify that on February 2, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael
5

 
 Case 1:17-cv-00116-LMB-TCB Document 38 Filed 02/03/17 Page 1 of 1 PageID# 240

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, Gt aL

Petitioners,

V.

l:17-cv-116(LMB/TCB)

DONALD TRUMP, President ofthe United States, ^ aL,

Defendants.

ORDER

For the reasons stated in open court, it is hereby

ORDERED that the Temporary Restraining Order entered by this Court on January 28,

2017, be and is extended through Friday, February 10,2017; and it is further

ORDERED that the defendants provide the Commonwealth of Virginia with a list of all

persons who have been denied entry to or removed from the United States since the Executive

Order entitied "Protecting the Nation from Foreign Terrorist Entry into the United States" was

signed and who, as of 8:00 a.m. Eastern Standard Time, on Friday, January 27,2017, had a

residence in the Commonwealth of Virginia and had lawful permanent resident status, an

immigrant visa (or accompanying family or spousal visa), a valid student visa (or accompanying

family or spousal visa), or a valid work visa (or accompanying family or spousal visa) by the close

of business on Thursday, February 9,2017.

The Clerk is directed to forward copies ofthis Order to counsel of record.

Entered this day of February, 2017.

Alexandria, Virginia

/s/ Leonie M. Brinkema
United States District Judge '

 
 Case 1:17-cv-00116-LMB-TCB Document 42 Filed 02/03/17 Page 1 of 13 PageID# 257

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et~

)

)

Petitioners/Plaintiffs,

)

)

v.

)

1: 17-cv-116 (LMBffCB)

)

DONALD TRUMP, President of the

)

United States, et ~

)

)

Respondents/Defendants.

MEMORANDUM OPINION

On Friday, February 3, 2017, after hearing oral argument, the Court granted a Motion to

Intervene by the Commonwealth of Virginia (''the Commonwealth") and a Motion to Intervene

by Osman Nasreldin ("Nasreldin") and Sahar Kamal Ahmed Fadul ("Fadul"). This

Memorandum Opinion supplements the reasoning articulated in open court.

I.

BACKGROUND

On January 27, 2017, President Donald Trump signed an executive order titled

"Protecting the Nation from Foreign Terrorist Entry into the United States" (''the EO").

Section 3 ofthe EO includes a proclamation ''that the immigrant and nonimmigrant entry into the

United States of aliens from" Syria, Iraq, Iran, Libya, Sudan, Yemen, and Somalia ''would be

detrimental to the interests of the United States" and "suspend[s] entry into the United States, as

immigrants and nonimmigrants, of such persons for 90 days from the date of this order." Pet.

Ex. A, [Dkt. 7-1] at 3. Although the EO explicitly excludes "foreign nationals traveling on

diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United

Case 1:17-cv-00116-LMB-TCB Document 42 Filed 02/03/17 Page 2 of 13 PageID# 258
Nations, and G-1, G-2, G-3, and G-4 visas" from the ban on entry, it does not exclude persons who have been granted lawful permanent residency. 1 Id.
The named petitioners,2 Tareq Aqel Mohammed Aziz and Ammar Aqel Mohammed Aziz, are Yemeni citizens (and brothers) who were holders of IR2 immigrant visas3 issued by the
U.S. Embassy in Djibouti. They arrived at Dulles on Saturday, January 28, 2017. According to
the petition, they were handcuffed upon deplaning and told by Customs and Border Protection
("CBP") agents that they would be sent to Yemen and barred from entry into the United States
for five years if they did not sign Form 1-407, which is titled "Record ofAbandonment of Lawful
Permanent Resident Status.,,4 Confused and pressured by the representations ofthe CBP agents,
petitioners signed the 1-407, after which CBP stamped "Cancelled" over their IR2 visas.
Petitioners were then required to purchase return trip tickets to Addis Ababa, Ethiopia, at their
own expense.
The Aziz brothers' amended petition alleges seven counts: (1) Fifth Amendment
Procedural and Substantive Due Process violations; (2) violations of petitioners' rights to enter
the United States under the Immigration and Nationality Act ("INA"); (3) discrimination on the
1 On February 1, 2017, White House Counsel Donald F. McGahn II issued a memorandum stating that "there has been reasonable uncertainty about whether [Section 3 ofthe EO] appli[ies] to lawful permanent residents ofthe United States. Accordingly, to remove any confusion, I now clarify that Section 3(c) and 3(e) do not apply to such individuals." [Dkt. 34-1]. 2 The petition also names John Does 1-60 as petitioners, who are "approximately 60 lawful permanent residents of the United States, or immigrant visa holders, all nationals of [the affected countries], who landed at Dulles Airport on January 27 and/or 28, 2017" and who allegedly experienced treatment similar to the named petitioners. 3 IR2 visas are available to qualifying children and stepchildren of U.S. citizens who do not themselves hold U.S. citizenship. The Aziz brothers were eligible for IR2 visas because their father is a U.S. citizen. 4 The United States Citizenship and Immigration Services website instructs users to "[u]se Form 1-407 to let us know that you have decided to voluntarily abandon your status as a lawful permanent resident ofthe United States."
2

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basis of nationality without sufficient justification in violation ofthe INA; (4) violations of the Establishment Clause; (5) violations ofthe Equal Protection Clause; (6) violations ofthe Administrative Procedure Act ("APA"); and (7) violations of the Religious Freedom Restoration Act.5
Intervenor plaintiffFadul is a Somali citizen and the fiancee of intervenor plaintiff Nasreldin, a United States citizen and resident of Colorado. Fadul held a K-1 visa6 and was traveling from Addis Ababa, Ethiopia. Like the named petitioners, Fadul was one ofthe persons at Dulles "stopped by CBP agents, and forced to surrender her visa and accompanying immigration documentation." [Dkt. 26] at 2. Fadul alleges that she was required to sign a form rescinding her visa application without being given an opportunity to consult with a translator or legal counsel and then forced to purchase a return ticket on the first available flight to Addis Ababa.
The Commonwealth of Virginia has moved to intervene under Rule 24 ofthe Federal Rules of Civil Procedure. The Commonwealth asserts a variety of connections to this litigation. First, it asserts a general parens patriae interest in the well-being of its citizens and residents, and a more particular interest in ensuring that such persons are not discriminatorily denied the benefits of federal law. Second, it argues that the government has "not complied fully and transparently" with the Temporary Restraining Order entered by this Court on January 28, 2017, directing that defendants "permit lawyers access to all legal permanent residents being detained at Dulles," meaning that the Commonwealth "has been hindered in its ability to identify the
5 The Commonwealth's intervenor complaint includes each ofthese counts except for those alleging substantive due process, nationality discrimination in violation ofthe INA, and violations of the APA. Nasreldin and Fadul have not yet filed an intervenor complaint. 6 A K-1 visa is available to a person who is engaged to marry a United States citizen.
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Virginia residents who have been" detained or removed. Mot. to Intervene Memo. ("MTI"),

[Dkt. 15] at 4. Third, the Commonwealth argues that its "public universities and their

administration, faculty, students, and families are being harmed by the Executive Order" because

several such persons are being prevented from returning to the United States or traveling from it

by the EO. Id. These hindrances have the effect of"interfering with ... employment relations

and disrupting" operations. Id. Additionally, the Commonwealth alleges that certain faculty

members "likely will be forced to forfeit their grant moneys" ifthey are unable to travel. Id.

II.

DISCUSSION

A. Intervention
Federal Rule of Civil Procedure 24(a)(2) requires a court to permit intervention by a party who "claims an interest relating to the ... subject of the action, and is so situated that disposing ofthe action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." The Fourth Circuit has articulated a three-part test for Rule 24(a)(2) intervention, requiring a movant to show: "(1) an interest in the subject matter of the action; (2) that the protection ofthis interest would be impaired because of the action; and (3) that the applicant's interest is not adequately represented by existing parties to the litigation." Teague v. Bakker, 931 F.2d 259, 260-61 (4th Cir. 1991).
Even when a party may not intervene as of right, a court may permit intervention when the party "has a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b)(l)(b). The Fourth Circuit favors "liberal intervention ... to dispose of as much of a controversy" as possible. Feller v. Brock, 802 F.2d 722, 729 (4th Cir. 1986). When permissive intervention is being invoked, the key question is whether the existing parties would be prejudiced by allowing the intervention. Alt v. U.S. Envtl. Prot. Agency, 758 F.3d

4

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588, 591 (4th Cir. 2014). This concern that is usually minimal early in the litigation process, Ilk, and is not a barrier in this case as the only petitioners do not oppose the interventions and the defendants cannot show prejudice.
Nasreldin and Fadul satisfy the standards for intervention as of right. They have an interest in the subject matter ofthe litigation because they allege nearly identical treatment as the named petitioners, and protection oftheir interest may be impaired by the action because an adjudication in the defendants' favor might deprive them of an opportunity to present additional arguments in support oftheir position. Their interest is not adequately represented by the existing parties because an adjudication in favor of the Aziz brothers would not necessarily resolve the matter ofFadul's entry into the United States.7 They have also met the standard for permissive intervention because they share many questions of law and fact with the original petitioners. Indeed, the only obvious factual distinction is that Fadul held a K-1 visa rather than an IR2 visa. Moreover, there is no significant danger that the original parties will be prejudiced by permitting them to join, particularly as less than a week had passed since the original petition was filed when Nasreldin and Fadul moved to intervene.
The Commonwealth also satisfies the requirements for intervention as of right. As the standing analysis below outlines in greater detail, the Commonwealth has an interest in the subject matter of the litigation both as parens patriae and as the proprietor ofnumerous public universities. Its interests are not adequately represented by the existing parties because they are broader, covering a greater class of affected persons than merely holders of IR2 or K-1 visas.
7 The inadequacy of the Aziz brothers to represent either of the intervenors is highlighted by their agreement to reach a settlement with the government. The government has represented that it has made a similar offer to Nasreldin and Fadul, but until the offer has been accepted and implemented it does not moot their case. Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 666 (2016) (holding that "an unaccepted settlement offer has no force").
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For the same reason, the Commonwealth's interests are not adequately represented by the existing parties, because resolution oftheir claims might leave some of the Commonwealth's grievances unaddressed. Moreover, the Commonwealth satisfies the requirements for permissive intervention. Although the Commonwealth's legal claims do not overlap completely with petitioners', at least five ofthe counts in the Commonwealth's complaint are largely identical to the claims in the original petition. Moreover, DHS and CBP's actions in response to the EO form the common factual basis for both petitioners' and the Commonwealth's claims, and because the request was filed within 72 hours ofthe original petition having been filed there is no danger that defendants' ability to respond will be prejudiced. Accordingly, the Commonwealth has cleared the procedural bar for intervention as well. The real question is whether the Commonwealth has standing to pursue an action against the federal defendants.
B. The Commonwealth's Standing The burden to prove standing is on the party invoking federal jurisdiction. Friends ofthe
Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 198 (2000). Although standing must eventually be proven by the same standard of proof as the substantive claims alleged, "[g]eneral allegations of injury may suffice at the pleading stage." Id.
The Commonwealth asserts parens patriae standing to ensure the well-being of its residents and their access to the benefits of the federal system, as well as proprietary standing to vindicate its own interests. MTI at 1. The defendants argue that states are prohibited from bringing a parens patriae action against the federal government8 and that the Commonwealth's proprietary injuries are too tenuous to support standing.
8 The defendants have been sued in their official capacity, meaning that this civil action is in
effect against the federal government. Kentucky v. Graham, 473 U.S. 159, 165 (1985). 6

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1. Parens Patriae Standing "Parens patriae means literally 'parent of the country.'" Alfred L. Snapp & Son., Inc. v. Puerto Rico, 458 U.S. 592, 600 (1982) ("Snapp"). American courts have long recognized that states, as parens patriae, have a peculiar "set of interests ... in the well-being of [their] populace." Id. at 602. These interests are often referred to as "quasi-sovereign interests," and although that concept "does not lend itselfto a simple or exact definition," it includes an interest in "securing residents from the harmful effects of discrimination." Id. at 601, 609. If a state's quasi-sovereign interests are threatened, the state has standing under Article III to bring an action in federal court to vindicate them. Id. at 601. Defendants have argued that an early Supreme Court case, Massachusetts v. Mellon, 262 U.S. 447 (1923), created a "prohibition against states suing the United States on behalf of their citizens." Virginia v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011). But it is a mischaracterization ofMellon (and Virginia) to speak of a "prohibition" without further qualification. Importantly, both cases addressed a state's challenge to congressional, rather than executive, action. In Mellon, Massachusetts sought to enjoin appropriations under a federal statute called the Maternity Act, arguing that the statute was an unconstitutional exercise of federal power. The Supreme Court held that "a state, as parens patriae, may [not] institute judicial proceedings to protect citizens ofthe United States from the operation of the statutes thereof .... [I]t is no part of its 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[.]" Mellon, 262 U.S. at 485-86. The Court cautioned that it did not "go so far as to say that a state may never intervene by suit to protect its citizens against any form of enforcement of unconstitutional acts of Congress," id. at 485, and specifically observed that it
7

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was "not now speaking ofthe merely ministerial duties of officials," id. at 488. The Court explained that the separation ofpowers concerns were less significant in that context because ''the [judicial] power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way ofthe enforcement of a legal right." Id. The Fourth Circuit's opinion in Virginia, in which the Commonwealth challenged the constitutionality ofthe Affordable Care Act's mandate requiring individuals to purchase health insurance, reflected this distinction between congressional and executive action, observing that the federalism concerns underlying the rule in Mellon applied "[w]hen a state brings a suit seeking to protect individuals from a federal statute[.]" (emphasis added). Neither Mellon nor Virginia confronted, or purported to address, whether a state would have standing to challenge executive actions.
Moreover, as many courts have observed, reading Mellon as a complete ban on parens patriae actions by states against the federal government would contradict Massachusetts v. EPA,
549 U.S. 497 (2007). In that case, Massachusetts attacked the Environmental Protection
Agency's ("EPA") decision not to regulate carbon dioxide, arguing that the EPA's stated reasons for the decision were inconsistent with the relevant federal statute. Id. at 505. Relying in part on Mellon, the EPA argued that Massachusetts lacked standing. The Court disagreed, holding that Massachusetts was not only permitted to challenge the EPA's failure to act but that it was "entitled to special solicitude" in the standing analysis because (1) Congress had created a cause of action for challenging the decision not to engage in rulemaking and (2) Massachusetts had a stake in protecting its "quasi-sovereign interests." Id. at 520. The Court specifically rejected the argument, advanced by the ChiefJustice in dissent, that Mellon amounted to a ban, observing
8

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that "Mellon itself disavowed any such broad reading[.]" Id. at 520 n.17. Courts have subsequently acknowledged that Massachusetts v. EPA cannot be reconciled with the broad reading of Mellon as a ban on parens patriae actions against the federal government. Ariz. State Legis. v. Ariz. Ind. Redistricting Comm'n, 135 S. Ct. 2652, 2664 n.10 (2015); Wash. Utils. and Transp. Comm'n v. Fed. Commc'ns Comm'n, 513 F.2d 1142, 1153 (9th Cir. 1975) ("Wash. Utils."); Challenge v. Moniz,_ F. Supp. 3d _ , 2016 WL 6902416, at *3 (E.D. Wash. Nov. 3, 2016).9
As the Mellon Court observed, its rationale for barring parens patriae challenges to federal statutes has less force when "ministerial," or executive, action is challenged. See Mellon, 262 U.S. at 488. In such situations, a court is on more familiar terrain, determining whether the executive branch has lawfully discharged the authority allocated to it, rather than opining on more delicate questions of federal supremacy. Id. This is precisely the kind of claim raised in a constitutional challenge to an executive act, which argues that the executive's action is contrary to other, superior federal law. Similarly, to the extent that a state argues that executive action is inconsistent with a federal statute, the state "seeks to vindicate the congressional will by preventing what it asserts to be a violation of that statute by the administrative agency charged with its enforcement." Wash. Utils., 513 F.2d at 1153. Accordingly, a state is not be barred by the Mellon doctrine from a parens patriae challenge to executive action when the state has
9 For these reasons, the statement from the final footnote in Snapp that "[a] State does not have standing as parens patriae to bring an action against the Federal Government" cannot be taken as controlling. 458 U.S. at 609 n.16. That statement was dictum in 1982 when it was made, because Snapp involved private defendants, and has since been undermined by the Court's holding in Massachusetts v. EPA.
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grounds to argue that the executive action is contrary to federal statutory or constitutional law.
Id.10
Having concluded that the Commonwealth is not categorically barred from maintaining a parens patriae action against the federal defendants, the next question is whether the other requirements of a parens patriae action have been satisified. The first requirement is that the state have a legitimate quasi-sovereign interest in the litigation. In addition to its interest in "securing residents from the harmful effects ofdiscrimination," those interests include "the health and well-being-both physical and economic-of [the state's] residents in general" and "ensuring that the State and its residents are not excluded from the benefits that ... flow from participation in the federal system." Snapp, 458 U.S. at 607--609. The second requirement is that the challenged action have a sufficiently "substantial" effect on the state's residents, rather than a narrow and definable class. Id. at 609. When determining whether the effect is substantial, the court must consider persons who are both directly and indirectly affected. Id. For example, in Snapp, although only 787 Puerto Rican workers were allegedly denied the benefit offederal labor law, the Court held that the indirect impact of discrimination was nevertheless substantial, given the Court's "experience with the political, social, and moral damage of discrimination[.]" Id.
10 The Court acknowledges that the D.C. Circuit has disagreed with this view. In a 1976 opinion that relied heavily on Mellon, the court held that Pennsylvania lacked standing to sue the Small Business Administration over the classification of a major hurricane as a Class B rather than a Class A disaster. Pennsylvania v. Kleppe, 533 F.2d 668, 670 (D.C. Cir. 1976). The persuasive force of that opinion is diminished by the majority opinion in Massachusetts v. EPA, 549 U.S. at 520; see also Ariz. State Legis., 135 S. Ct. 2652 at n.10, as well as by the D.C. Circuit's recognition that "it was debatable whether the Court in [Mellon] meant to bar all state parens patriae suits against the Federal Government," Kleppe, 533 F.2d at 677.
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Here, the Commonwealth has made sufficient allegations to support parens patriae standing. It challenges executive action rather than a congressional statute. In doing so, it seeks to ensure that its residents "are not excluded from the benefits [of] participation in the federal system," Snapp, 458 U.S. at 608, most notably benefits afforded to Virginia residents by the Immigration and Naturalization Act and the federal constitution. Moreover, through its equal protection, First Amendment, and Religious Freedom Restoration Act claims, the Commonwealth seeks to "secur[e] its residents from the harmful effects of discrimination." Id. These are textbook quasi-sovereign interests. In terms of substantiality, the Commonwealth has alleged that at least 300 persons are directly affected by this ban. As for indirect effects, as in Snapp, the stigma of discrimination "carr[ies] a universal sting." Id. at 609 (internal quotation marks and citation omitted). Accordingly, the Commonwealth has sufficient standing under Article III to pursue this action against the federal defendants, at least at the pleading stage. 11
2. Proprietary Standing At oral argument, the Commonwealth argued that in addition to having standing under its parens patriae theory, it has also established standing because it has alleged injury to its "nonsovereign ... proprietary interests." Snapp, 458 U.S. at 601. The Court agrees with this argument. Like "associations and private parties, a State is bound to have a variety of proprietary interests," and "like other such proprietors it may at times need to pursue those interests in court." Snapp, 458 U.S. at 601--02. In such situations, a state is subject to the same law of
11 As the litigation proceeds, the Court will of course be under an ongoing duty to satisfy itself that the requirements of Article III are met. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). Should additional discovery or other developments alter this initial impression, the question of standing may be reassessed.
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standing as any other party in federal court-that is, it must allege an injury to an interest that is "concrete and particularized" and "actual and imminent" as opposed to merely "conjectural or hypothetical;" that the injury is "fairly traceable to the challenged action ofthe defendant;" and that it is "likely ... that the injury will be redressed by a favorable decision[.]" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560--61 (1992) (internal citations and quotation marks
omitted). In this inquiry, the particularity ofthe injury is of greater importance than its magnitude. See Friends of the E~ 528 U.S. at 183 (holding that a purely aesthetic injury can confer Article III standing); see also Texas v. United States, 809 F.3d 134, 155 (5th Cir. 2015)
(holding that subsidies used to offset the cost ofprinting additional driver's licenses gave Texas standing to challenge the Deferred Action for Parents of Americans program), aff'd by an equally divided Court, United States v. Texas, 136 S. Ct. 2271 (2016).
Here, the Commonwealth has alleged that the travel ban will disrupt the operations of its public universities, depriving them of some faculty and staff members and potentially requiring other faculty members to forfeit grant money by virtue oftheir inability to leave the country to
fulfill the terms oftheir grants.12 This allegation satisfies the requirements of Article III. The
injury is pecuniary and particular to the Commonwealth, not shared by the public at large. It is fairly traceable to the challenged EO, because the Commonwealth alleges that the only thing impeding the travel ofthese faculty and staff members is the EO. And a judicial declaration that the EO is unenforceable would certainly redress the injury by removing that obstacle.
12 The Commonwealth has also alleged that students of its universities are affected by the EO. The Court need not consider whether those allegations would independently confer proprietary standing on the Commonwealth because the allegations related to faculty and staffmembers are sufficient.
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Accordingly, even ifthe Commonwealth did not have standing as parens patriae, it would have

traditional proprietary standing to challenge the constitutionality ofthe EO.

m.

CONCLUSION

For the reasons stated above and in open court, the Motions to Intervene by the

Commonwealth and by Nasreldin and Fadul have been GRANTED.
Entered this .I_MdLay of February, 2017.

Alexandria, Virginia

Isl~'··"

Leonie M. Brinkema

,_:·'/f.:?

United States District Judge

· ".: ·:~(:: ·

13

 
 Case 1:17-cv-00116-LMB-TCB Document 39 Filed 02/03/17 Page 1 of 12 PageID# 241

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)

Petitioners,

)

)

COMMONWEALTH OF VIRGINIA,

)

)

Intervenor-Petitioner,

)

)

v.

)

)

DONALD TRUMP, President of the United )

States; U.S. DEPARTMENT OF

)

HOMELAND SECURITY; U.S. CUSTOM )

AND BORDER PROTECTION; JOHN

)

KELLY, Secretary of DHS; KEVIN K.

)

MCALEENAN, Acting Commissioner of )

CBP; and WAYNE BIONDI, Customs and )

Border Protection (CBP) Port Director of the )

Area Port of Washington, Dulles.

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

COMPLAINT IN INTERVENTION FOR DECLARATORY AND INJUNCTIVE RELIEF 1. The Commonwealth of Virginia seeks declaratory and injunctive relief against President Donald J. Trump and the other named Respondents for violations of the Establishment Clause of the First Amendment, the Due Process Clause of the Fifth Amendment, the Equal Protection Clause of the Fifth Amendment, and the Immigration and Nationality Act. 2. On January 27, 2017, President of the United States Donald J. Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive Order”). 3. Individuals from Iran, Iraq, Syria, Sudan, Libya, Yemen, and Somalia who are
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legal permanent residents or who were issued valid student, work, or spousal visas (e.g., B-1, B2, H-1B, L-1, O, F-1, F-2, J-1, J-2) entitling them to be in the United States before the issuance of the Executive Order have been and will continue to be denied entry to the United States based solely on the Executive Order.
4. The actual underlying purpose of the Executive Order is to effectuate a “Muslim ban” that the President promised as a candidate for office and to prioritize the admission of persons of the Christian faith as opposed to persons of the Muslim faith.
5. By arbitrarily banning persons from Muslim-majority countries, the Executive Order violates numerous constitutional provisions, subjecting Virginia and its residents to irreparable harm.
JURISDICTION AND VENUE 6. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1346, 1361. This Court has remedial authority under 28 U.S.C. § 2201 et seq. 7. Venue is proper in this district because a substantial part of the events or omissions occurred here. 28 U.S.C. § 1391(b).
PARTIES 8. Petitioner-Intervenor is the Commonwealth of Virginia. 9. Petitioner Tareq Aqel Mohammed Aziz is a 21-year-old citizen and national of Yemen, who was granted lawful permanent resident status. 10. Petitioner Ammar Aqel Mohammed Aziz is a 19-year-old citizen and national of Yemen, who was granted lawful permanent resident status. 11. Petitioners JOHN DOES 1-60 are approximately 60 nationals of Syria, Libya, Iran, Iraq, Somalia, Yemen, and Sudan, who are lawful permanent resident or immigrant visa holders, and who were reportedly held against their will at Washington-Dulles International
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Airport (Dulles). 12. Respondents are: Donald J. Trump, President of the United States, in his official
capacity; the U.S. Department of Homeland Security, a cabinet department of the United States government; John Kelly, the Secretary of the Department of Homeland Security, in his official capacity; the U.S. Customs and Border Protection, an agency within the Department of Homeland Security; Kevin K. McAleenan, Acting Commissioner of Customs and Border Protection, in his official capacity; and Wayne Biondi, Customs and Border Protection Port Director of the Area Port of Washington Dulles, in his official capacity.
FACTUAL ALLEGATIONS A. The Executive Order and its implementation. 13. On January 27, around 4:30 p.m., President Trump signed the Executive Order. 14. The stated purpose of the Executive Order is to ensure that the United States is “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.” 15. The Executive Order asserts that “[n]umerous 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.” 16. The visa-issuance process was modified to be more stringent after the September 11, 2001 terrorist attacks. 17. Section 3(c) of the Executive Order bans for 90 days certain classes of individuals from entering or reentering the United States based on their national origin. 18. Individuals from the following countries are banned from entering the United States unless they are a U.S. citizen or possess a diplomatic visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, and G-4 visa:
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Iraq, Iran, Syria, Libya, Somalia, Yemen, and Sudan. 19. Iraq, Iran, Syria, Libya, Somalia, Yemen, and Sudan are majority-Muslim
countries. 20. No person from Iraq, Iran, Syria, Libya, Somalia, Yemen, or Sudan in the United
States as a lawful permanent resident or under a work, student, or spousal visa has been implicated in a terrorist plot in the United States.
21. After the Executive Order was signed, numerous lawful permanent residents, workers with valid employment visas, students with valid student visas, spouses with valid spousal visas were detained at airports across the United States and the world.
22. Petitioners were detained at Dulles International Airport (“Dulles”) in Dulles, Virginia.
23. It is believed that at least 50 to 60 other lawful permanent residents were likewise detained at Dulles, but the exact number is unknown because Respondents declined to release information about the number of person being held at Dulles.
24. Upon information and belief, residents who are lawful permanent residents or who were issued valid student, work, or spousal visas were held against their will at Dulles.
25. On January 28, this Court issued a temporary restraining order (TRO). (ECF No. 3.)
26. The TRO ordered that (1) “respondents shall permit lawyers access to all legal permanent residents being detained at Dulles,” and (2) “respondents are forbidden from removing petitioners . . . for a period of 7 days.”
27. Upon information and belief, none of the travelers who were detained against their will at Dulles on January 29 was permitted access to lawyers who were standing by on
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scene, contrary to the TRO. 28. The inability of lawyers to meet with individuals held at Dulles hindered the
Commonwealth’s ability to determine how many Virginia residents were detained and released or removed from the United States despite being a lawful permanent resident or possessing a valid visa.
29. On January 29, Virginia Senators Mark R. Warner and Tim Kaine formally requested additional information about the Executive Order from Respondent Kelly.
30. Senator Warner and Senator Kaine believed that “[t]he broadness of the [Executive Order] suggests this is a policy targeting Muslims, an approach that national security experts have testified could harm, not help, our national security interests.”
31. On January 29, Governor of Virginia Terence R. McAuliffe directed his administration to send a letter to the White House Director of Intergovernmental Affairs.
32. On January 29, Attorney General of Virginia Mark R. Herring formally requested additional information about the detention of Virginia residents from the United States, including from U.S. Attorney (now Acting Attorney General) Dana Boente, Respondent John Kelly, Respondent Wayne Biondi, and Respondent Kevin McAleenan. (ECF No. 19-1.)
B. The impact of the Executive Order on Virginians who are lawful permanent residents or who are authorized to reside here under validly issued visas.
33. The Executive Order has had a direct and substantial impact on Virginia and its public universities, faculty, and students who are foreign-born.
34. Many foreign students go on to be significant figures in Virginia and in their communities, such as Ángel Cabrera, the president of George Mason University, the largest public university in Virginia.
35. Virginia Commonwealth University has a satellite campus in Qatar that hosts
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exchange programs with students in the United States. 36. Virginia has 14 publicly supported universities and colleges and 23 community
colleges. 37. On information and belief, more than 350 students at Virginia Commonwealth
University, Virginia Tech, George Mason University, the University of Virginia, and William & Mary are directly and adversely affected by the Executive Order.
38. These students will be unable to travel abroad for academic or personal reasons as permitted by their visas because the Executive Order will prevent them from reentering the United States.
39. At least two students were known to be abroad when the Executive Order was issued and now cannot enter the United States.
40. An Iranian doctoral student at a Virginia university had been approved and cleared for a visa to return to the United States to defend his dissertation, but was blocked from doing so by the Executive Order.
41. A Libyan undergraduate at a Virginia university who was traveling for family reasons was prevented from boarding a plane from Istanbul, Turkey back to the United States and has been unable to return.
42. The Executive Order poses a significant chilling effect on other out-of-country students who fear traveling abroad due to the possibility that they will be denied reentry.
43. The Executive Order directly harms Virginia universities who will not be able to attract academic talent that enriches their campuses and advances their educational mission.
44. For example, foreign-born faculty teaching at Virginia universities under a valid visa typically have specialized expertise that cannot be easily replaced.
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45. The harm to faculty and the teaching mission of Virginia universities is already being felt where three foreign scholars from a country banned by the Executive Order abandoned their plans to visit the university, despite having valid J-1 visas and having visited the United States previously.
46. Another university has had two visiting scholars with valid J-1 visas cancel their plans to be at the school for the spring semester.
47. The Executive Order financially harms Virginia universities who depend on tuition dollars from out-of-state and out-of-country students.
48. Two Sudanese applicants to a Virginia university have abandoned their plans to enroll in foreign language programs at the university, and a number of Iranian students have withdrawn applications to various university engineering programs.
49. The amount of tuition lost due to the Executive Order is not quantifiable because the order discourages out-of-country students from applying to Virginia universities in the first instance.
50. The Executive Order jeopardizes grants and contracts that fund research at Virginia’s universities.
51. The inability of a number of graduate students and faculty to travel abroad will cause a gradual decrease in research collaborations with other universities and groups as well as funding.
52. The Executive Order also impairs Virginia’s economy by restricting the travel of foreign students and foreign workers to Virginia, and impairing their ability to reside in Virginia, depriving the Commonwealth of their talents and contributions as residents and taxpayers, and withholding their labor from Virginia’s businesses.
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CLAIMS FOR RELIEF A. Claim 1: Violation of the Due Process Clause of the Fifth Amendment. 53. The Commonwealth re-alleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this complaint. 54. The Due Process Clause of the Fifth Amendment prohibits the federal government from depriving individuals of their liberty interests without due process of law. 55. Lawful permanent residents and individuals with validly issued visas have a legally protected right in not having their status revoked arbitrarily based on their national origin. 56. Section 3 of the Executive Order violates the legally protected rights of lawful permanent residents and individuals with valid visas by eliminating their status without according them any process. 57. When Congress has granted statutory rights and authorized procedures applicable to arriving and present immigrants, due process rights attach to those statutory rights. 58. Section 3 of the Executive Order conflicts with the statutory rights and procedures provided by Congress. 59. In issuing and implementing the Executive Order, Respondents have violated the procedural due process guarantees of the Fifth Amendment. 60. Respondents’ violation of the Due Process Clause is causing ongoing and irreparable harm to Virginia residents. B. Claim 2: Violation of the Establishment Clause of the First Amendment. 61. The Commonwealth re-alleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this complaint. 62. The Establishment Clause of the First Amendment prohibits the federal government from officially preferring one religion over another.
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63. In light of the numerous statements given by the President and his advisors concerning their intent surrounding the purpose of the Executive Order, and their goals in its enforcement, Section 3(c) is intended to fulfill the President’s pledge as a candidate to implement a moratorium on Muslim travel to the United States, and to disfavor Islam and to favor Christianity.
64. Respondents’ actions in issuing and enforcing the Executive Order violate the Establishment Clause of the First Amendment.
65. Respondents’ violation of the Establishment Clause is causing ongoing and irreparable harm to Virginia residents.
C. Claim 3: Violation of the Equal Protection Clause of the Fifth Amendment. 66. The Commonwealth re-alleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this complaint. 67. The Due Process Clause of the Fifth Amendment prohibits the federal government from denying equal protection of the laws. 68. The Executive Order targets individuals based on their national origin without justification. 69. The Executive Order was motivated by animus and a desire to harm Muslims. 70. No substantial federal interest justifies the discriminatory terms and blanket application of the Executive Order. 71. Respondents have violated the equal protection guarantee of the Fifth Amendment based on their issuance and enforcement of Section 3 of the Executive Order. 72. Respondents’ violation of the equal protection guarantee of the Fifth Amendment is causing ongoing and irreparable harm to Virginia residents.
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D. Claim 4: Violation of the Immigration and Nationality Act. 73. The Commonwealth re-alleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this complaint. 74. The Immigration and Nationality Act and its implementing regulations entitle lawful permanent residents to reenter the United States without need of a waiver and entitles individuals possessing a valid visa issued by a consular official to approach the border and seek entry. See, e.g., 8 U.S.C. §§ 1151, 1201, 1225, and accompanying regulations. 75. Respondents are violating the Immigration and Nationality Act by insisting that lawful permanent residents require a waiver of Section 3(c) of the Executive Order to enter the United States and by denying individuals with valid visas the right to board a plane bound for the United States such that they may present themselves at the border and seek entry. E. Claim 5: Violation of the Religious Freedom Restoration Act. 76. The Commonwealth re-alleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this complaint. 77. The Religious Freedom Restoration Act (RFRA) prohibits the federal government from substantially burdening the exercise of religion unless it is the least restrictive means of furthering a compelling governmental interest. See 42 U.S.C. § 2000bb et seq. 78. Section 3 of the Executive Order places a substantial burden on Muslims’ ability to practice their religion by, among other things, restricting their ability to engage in religious travel abroad and, in the case of residents traveling abroad, to return freely to the United States to attend services in their own faith communities. Because the Executive Order does not further a compelling governmental interest by the least restrictive means, Respondents’ enforcement of the Executive Order violates RFRA.
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PRAYER FOR RELIEF The Commonwealth respectfully requests the following relief from the Court: A. A declaratory judgment that Section 3(c) of the Executive Order violates the Establishment Clause of the First Amendment and a preliminary and permanent injunction against its enforcement. B. A declaratory judgment that Section 3(c) of the Executive Order violates the Due Process Clause of the Fifth Amendment and a preliminary and permanent injunction against its enforcement. C. A declaratory judgment that Section 3(c) of the Executive Order violates the equal protection guarantee of the Fifth Amendment and a preliminary and permanent injunction against its enforcement. D. A declaratory judgment that Section 3(c) of the Executive Order is unlawful under the Immigration and Nationality Act and a preliminary and permanent injunction against its enforcement. E. A declaratory judgment and injunction that Section 3(c) of the Executive Order violates RFRA and a preliminary and permanent injunction against its enforcement. F. An award of reasonable costs and attorney’s fees to the extent permitted by law; and G. All other equitable relief to which the Commonwealth may show itself to be entitled.

Respectfully submitted, COMMONWEALTH OF VIRGINIA,

By:

/s/

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Stuart A. Raphael (VSB No. 30380) Solicitor General Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us
Mark R. Herring Attorney General of Virginia Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us Matthew R. McGuire (VSB No. 84194). Assistant Attorney General mmcguire@oag.state.va.us Counsel for the Commonwealth of Virginia
CERTIFICATE OF SERVICE I hereby certify that on February 1, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael
12

 
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

TAREQ AQEL MOHAMMED AZIZ,

)

et al.,

)

)

Petitioners,

)

)

vs.

)

)

DONALD TRUMP,

)

President of the United States, et al., )

)

Respondents.

)

_________________________________ )

Civil Action No. 1:17cv116

RESPONDENTS’ OPPOSITION TO PUTATIVE INTERVENOR COMMONWEALTH OF VIRGINIA’S MOTION FOR ISSUANCE OF RULE TO SHOW CAUSE

The Commonwealth of Virginia filed a Motion for the Issuance of a Rule to Show Cause

on February 1, 2017 and sought a hearing within two days. Respondents wish to state their

opposition to the motion. With adequate time to brief this matter, Respondents would provide

additional reasons why the Court should deny the motion.

Initially, the Commonwealth establishes no legal basis for a putative intervenor to seek to

enforce a temporary restraining order (“TRO”). Cf. In re Allied Pilots Class Action Litig., No.

CIV.A.3:99-CV-0480P, 2000 WL 1405235, at *6 (N.D. Tex. Sept. 26, 2000) (“The TRO may

only be enforced by parties to the suit from which the order emanated.”) (citing Northside Realty

Associates, Inc. v. United States, 605 F.2d 1348, 1356–57 (5th Cir. 1979)).

Undersigned counsel for Respondents have engaged in extensive communications with

the Petitioners’ counsel—who actually filed and thus procured the TRO—about its

implementation and worked in good faith to help Respondents comply. The Commonwealth

questions whether lawful permanent residents were provided physical access to counsel in the

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immediate aftermath of the Court’s order late in the evening of Saturday, January 28, 2017. The undersigned are continuing to determine what steps were taken by Customs and Border Protection (“CBP”) to comply with the TRO in the late-night hours of January 28, 2017; however, CBP has informed us that no lawful permanent residents withdrew their admission or were removed from the United States from Dulles International Airport pursuant to the Executive Order after the entry of the TRO. The Commonwealth overlooks that, by the afternoon of Sunday, January 29, 2017, the counsel for the actual parties to the litigation had worked together on a plan for Respondent CBP to facilitate telephonic access to counsel should individuals be interested in soliciting legal advice, in lieu of providing counsel physical access to the secured space where secondary inspections occur. Importantly, the TRO does not specify whether physical or telephonic access to counsel is required, and the security demands of the airport customs environment raises significant concerns about physical access to those in secondary inspection. See Dkt. No. 3; Fed. Nat’l Mortg. Ass’n v. Bell, 576 Fed. Appx. 196, 197 (4th Cir. 2014) (per curiam) (holding, in conjunction with vacatur of civil contempt order, that “[c]ivil contempt is an appropriate sanction if we can point to an order . . . which set[s] forth in specific detail an unequivocal command which a party has violated” (quoting In re Gen. Motors Corp., 61 F.3d 256, 258 (4th Cir. 1995) (emphasis added))).
It is significant that Petitioners themselves have not sought a rule to show cause; rather, the motion was filed by a putative intervenor, which was not a party to those extensive communications. Indeed, the Petitioners have joined the Respondents in asking that the Petitioner’s claims be held in abeyance because the parties have worked cooperatively together to resolve the Petitioners’ claims.

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The Commonwealth also takes issue with the fact that by February 1, 2017, it did not receive a response to its letter sent on January 29, 2017 to the Secretary of Homeland Security, the United States Attorney, and others. The Commonwealth’s letter squarely implicated matters that were the subject of pending litigation, and therefore, the United States was considering and coordinating whether it would be appropriate to provide a substantive response to the letter when the Commonwealth filed its motion.
If the Court wishes to inquire about the Respondents’ compliance with its TRO, Respondents’ counsel stands ready to answer the Court’s questions, but the issuance of an order to show cause requested by the Commonwealth is unjustified. /// ///

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DATE: February 2, 2017

Respectfully submitted,

DANA J. BOENTE United States Attorney

CHAD A. READLER Acting Assistant Attorney General Civil Division

WILLIAM PEACHEY Director Civil Division, Office of Immigration Litigation

By:

/s/________________

DENNIS C. BARGHAAN, JR.

Assistant U.S. Attorney

2100 Jamieson Avenue

Alexandria, Virginia 22314

Telephone: (703) 299-3891

Fax:

(703) 299-3983

Email: dennis.barghaan@usdoj.gov

EREZ REUVENI

Senior Litigation Counsel

Civil Division, Office of Immigration

Litigation

P.O. Box 868

Ben Franklin Station

Washington, D.C. 20044

Telephone: (202) 307-4293

Fax:

(202) 616-8962

Email: erez.r.reuveni@usdoj.gov

ATTORNEYS FOR RESPONDENTS

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CERTIFICATE OF SERVICE
I hereby certify that on this date, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will transmit a true and correct copy of the same to the following:
Simon Sandoval Moshenburg Legal Aid Justice Center 6066 Leesburg Pike, Suite 520 Falls Church, Virginia 22041 Email: Simon@justice4all.org
Counsel for Petitioners
Stuart Alan Raphael Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 804-786-7240 Fax: 804-371-0200 Email: sraphael@oag.state.va.us
Trevor Stephen Cox Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 (804) 786-7704 Fax: (804) 371-0200 Email: tcox@oag.state.va.us
Counsel for the Commonwealth of Virginia
/// ///

Case 1:17-cv-00116-LMB-TCB Document 35 Filed 02/02/17 Page 6 of 6 PageID# 237

Timothy J. Heaphy Hunton & Williams LLP (DC-Pennsylvania Ave) 2200 Pennsylvania Ave NW Washington, DC 20037 202-955-1500 Fax: 202-778-2201 Email: theaphy@hunton.com
Counsel for Osman Nasreldin and Sahar Kamal Ahmed Fadul

Date: February 2, 2017

/s/________________

DENNIS C. BARGHAAN, JR.

Assistant U.S. Attorney

2100 Jamieson Avenue

Alexandria, Virginia 22314

Telephone: (703) 299-3891

Fax:

(703) 299-3983

Email: dennis.barghaan@usdoj.gov

ATTORNEYS FOR RESPONDENTS

 
 Case 1:17-cv-00116-LMB-TCB Document 34 Filed 02/02/17 Page 1 of 15 PageID# 216

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al.,

)

)

Petitioners,

)

)

v.

)

)

DONALD TRUMP, et al.,

)

)

Respondents.

)

)

1:17-CV-116 (LMB/TCB)

MEMORANDUM OF LAW IN OPPOSITION TO THE COMMONWEALTH’S MOTION TO INTERVENE
Pursuant to Local Rule 7(F)(1), the respondents, through undersigned counsel, hereby respectfully submit the instant memorandum of law in opposition to the Commonwealth of Virginia’s motion to intervene.
INTRODUCTION Defendants hereby respond in opposition to the motion to intervene in the instant proceedings filed by the Commonwealth of Virginia (“the Commonwealth”). The Commonwealth seeks to intervene as a Petitioner on the same side of this litigation as Petitioners Tareq Aquel Mohammed Aziz and Ammar Aqel Mohammed Aziz, two Yemeni nationals who, according to their Amended Habeas Petition and Complaint, had been issued immediate relative visas, were seeking admission into the United States, and were detained at Washington-Dulles International Airport on January 28, 2017 and not admitted to the United States in conformance with the Executive Order of January 27, 2017 titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” (“the Order”). ECF 7, First Am. Compl. ¶¶ 1, 6–7.

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At the outset it bears noting that the actual named parties to this litigation have reached and signed an agreement on resolving this matter without further litigation. See ECF 25. As the named parties notified the Court on February 1, 2017, they wish to “focus their efforts on resolving this case without further litigation” and “fully implement[ing]” their “signed agreement to resolve Petitioners claims against Defendants.” Id. Accordingly, neither actual party to this suit has any desire or interest in continuing this litigation at this time.
Regardless, even were it appropriate to consider the Commonwealth’s motion to intervene in a lawsuit no named party has any ongoing interest in pursuing and that is expected soon to be moot, it lacks any basis to intervene in this case. Because the Commonwealth lacks standing to assert any claims here and further fails to establish that its intervention is proper as a matter of right or of permission under Rule 24 of the Federal Rules of Civil Procedure, the Commonwealth’s motion should be denied.
I. The Commonwealth’s Rule 24(a) Motion Should Be Denied for Lack of Standing.
As a threshold matter, the Commonwealth lacks standing to intervene here, and its motion should be dismissed on that basis. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 899 (1990).
Because status as an intervenor provides “equal standing with the original parties” and the authority to “litigate fully on the merits,” 24 Charles Alan Wright &Arthur R. Miller, Federal Practice and Procedure, §§ 1920–21, a would-be intervenor should, like a plaintiff seeking to avail itself of the federal judiciary’s adjudicatory authority, satisfy “the irreducible minima of Article III standing.” Lujan, 497 U.S. at 899. Multiple circuit courts of appeal are in accord with this position. Deutsche Bank Nat. Trust Co. v. F.D.I.C., 717 F.3d 189, 193 (D.C. Cir. 2013) (“[I]ntervenors must demonstrate Article III standing . . . .”); United States v. Metro. St. Louis
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Sewer Dist., 569 F.3d 829, 833 (8th Cir. 2009) (“[A] party seeking to intervene must establish
Article III standing in addition to the requirements of Rule 24 . . . .”); City of Chicago v. Fed.
Emergency Mgmt. Agency, 660 F.3d 980–83 (7th Cir. 2011) (“The cases that dispense with the
requirement overlook the fact that even if a case is securely within federal jurisdiction by virtue of
the stakes of the existing parties, an intervenor may be seeking relief different from that sought by
any of the original parties. His presence may turn the case in a new direction—may make it really
a new case, and no case can be maintained in a federal court by a party who lacks Article III
standing.”) (internal citations and quotation marks omitted); Cf. Hollingsworth v. Perry, 133 S. Ct.
2652 (2013) (no standing for intervenors to pursue an appeal when the party that did not prevail in
the underlying suit declined to appeal).1
Even assuming the Commonwealth need not demonstrate standing as part of their motion for
intervention, “[i]ntervenors must show independent standing to continue a suit if the original
parties on whose behalf intervention was sought settle or otherwise do not remain adverse parties
in the litigation,” Dillard v. Chilton County Comm'n, 495 F.3d 1324, 1330 (11th Cir. 2007), which
is indisputably the case here. See ECF 25; Organized Vill. of Kake v. U.S. Dep't of Agric., 795 F.3d
1 But see Laroe Estates, Inc. v. Town of Chester, 828 F.3d 60, 64 (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); King v. Governor of the State of New Jersey, 767 F.3d 216, 245–46 (3d Cir. 2014); Perry v. Schwarzenegger, 630 F.3d 898, 905–06 (9th Cir. 2011); San Juan Cty., Utah v. United States, 503 F.3d 1163, 1172 (10th Cir. 2007) (en banc); Associated Builders & Contractors v. Perry, 16 F.3d 688, 690 (6th Cir. 1994); Ruiz v. Estelle, 161 F.3d 814, 829–30 (5th Cir. 1998). The Supreme Court granted a petition for writ of certiorari earlier this month on “[w]hether intervenors participating in a lawsuit as of right under Federal Rule of Civil Procedure 24(a) must have Article III standing . . . , or whether Article III is satisfied so long as there is a valid case or controversy between the named parties . . . .” Grant of Petition for Writ of Certiorari, Town of Chester, N.Y. v. Laroe Estates, Inc. (No. 16-605). It is an open question in the Fourth Circuit whether a party must demonstrate Article III standing to intervene as a matter of right in a district court proceeding, see N.A.A.C.P., Inc. v. Duplin Cty., N.C., No. 7:88-CV-00005-FL, 2012 WL 360018, at *3 (E.D.N.C. Feb. 2, 2012).
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956, 963-966 (9th Cir. 2015) (en banc) (intervenor's right to continue suit in the absence of party
on whose side intervention was permitted is contingent upon showing by intervenor that he or she
fulfills Article III standing requirements of injury in fact, causation, and redressability); City of
Colo. Springs v. Climax Molybdenum Co., 587 F.3d 1071, 1091 (10th Cir. 2009) (“a proposed
intervenor may not establish piggyback standing where the existing parties are not seeking judicial
resolution of an active dispute among themselves”); United States v. Accra Pac, Inc., 173 F.3d
630, 633 (7th Cir. 1999) (“[D]istrict judges can't suspend the application of Article III or grant
themselves the power to issue advisory opinions one case at a time, and litigants can't stipulate to
the enlargement of federal jurisdiction. A case or controversy must be present at every moment of
the litigation”). Indeed, this rule makes eminent sense, given the Supreme Court’s routine
affirmance of the principle that Article III standing must exist at every stage of the litigation.
Arizonans for Official English v. Arizona, 520 U. S. 43, 67 (1997). If the parties to this suit no
longer have a live ongoing controversy and wish to settle, then the Commonwealth must establish
standing on its own merits, rather than piggyback on Petitioners Article III injury.2
Here, the Commonwealth fails to demonstrate the irreducible minima of Article III
constitutional standing, consisting of (1) “injury-in-fact, [2] causation, and [3] redressability,” to
2 CVLR Performance Horses, Inc. v. Wynne, 792 F.3d 469, 475 (4th Cir.), cert. denied sub nom. Marsh v. Wynne, 136 S. Ct. 693 (2015), and cert. denied sub nom. Foster v. Wynne, 136 S. Ct. 693 (2015), relied on by the Commonwealth in its opposition to Joint Motion to hold this case in abeyance in light of the parties final, signed settlement, is not to the contrary. That case simply holds that “dismissal of the underlying action does not automatically moot a preexisting appeal of the denial of a motion to intervene,” because the appellate court can in fact “provide an effective remedy on appeal and therefore have jurisdiction.” 792 F.3d at 475 (emphasis added). That is plainly not the issue here, where this matter is in district court, no motion to intervene has been granted or denied either way, and certainly, unlike in Wynne, no appeal of such a decision has been taken by the putative intervenor. Moreover, as Wynne itself makes clear, citing earlier authority from the Fourth Circuit, even if where Wynne applies, “‘a court may treat intervention as a separate action’” only “‘when the intervenor has an independent basis for jurisdiction.’” Id. at 476 (quoting Atkins v. State Bd. of Educ., 418 F.2d 874, 876 (4th Cir. 1969)).
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intervene under Rule 24(a). In re Mut. Funds Inv. Litig., 529 F.3d 207, 216 (4th Cir. 2008). Specifically, the Commonwealth’s motion does not identify a “concrete and particularized” “injury-in-fact that is ‘actual or imminent, not conjectural or hypothetical.’” Lane v. Holder, 703 F.3d 668, 671 (4th Cir. 2012) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)). Rather, the Commonwealth relies on broad, conjectural allegations about the potential impact of the Order at issue in the litigation on various groups of Virginia residents. ECF No. 15, at 4–5. Nor does the state identify a specific procedural right or cognizable quasi-sovereign interest that has been injured in fact. See Massachusetts v. Mellon, 262 U.S. 447, 484–485 (1923); Massachusetts v. E.P.A., 549 U.S. 497, 520 (2007); see also infra Section II.a. These unsupported allegations are insufficient to confer standing on the Commonwealth and, thus, their motion to intervene as a matter of right should be denied on this basis.
Indeed, the link between the challenged federal action and the alleged injury to the Commonwealth must be more than “a conjecture based on speculation that is bottomed on surmise.” Wyoming ex rel.Sullivan v. Lujan, 969 F.2d 877, 882 (10th Cir. 1992); see Ill. Dep’t Transp. v. Hinson, 122 F.3d 370, 373 (7th Cir. 1997); Pennsylvania v. Kleppe, 533 F.2d 668, 672 (D.C. Cir. 1976). Any federal immigration policy will have some economic effects, and in consequence, some indirect impact on state or commonwealth revenues. Such an effect on revenues, for example, in the form of tuition payments, would not give a state or commonwealth at-large standing to challenge the policy, because, like the effect surmised here, it is “so distantly related to the wrong for which relief is sought, as not to be cognizable for purposes of standing.” Kleppe, 533 F.2d at 672; see Iowa ex rel. Miller v. Block, 771 F.2d 347, 353 (8th Cir. 1985). This
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is especially true in the area of immigration, an area in which the federal government enjoys plenary power. See Kleindienst v. Mandel, 408 U.S. 753, 765–66 & n.6 (1972).
II. The Commonwealth Cannot Intervene As a Matter of Right The Fourth Circuit has articulated the following test to determine whether a party may intervene as a matter of right under Rule 24(a): Applicants to intervene as of right must meet all four of the following requirements: (1) the application to intervene must be timely; (2) the applicant must have an interest in the subject matter of the underlying action; (3) the denial of the motion to intervene would impair or impede the applicant's ability to protect its interest; and (4) the applicant's interest is not adequately represented by the existing parties to the litigation. Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir. 1999). It is the would-be intervenor’s burden to establish all four requirements. Matter of Richman, 104 F.3d 654, 659 (4th Cir. 1997).
Here, the Commonwealth fails to meet at least two of the four prongs of this test. The Commonwealth has not established a legally recognized interest in this litigation, nor that any such interest would be impeded or impaired by a denial of the instant motion. Therefore, the Commonwealth’s motion to intervene as of right should be denied.
a. The Commonwealth Cannot Assert a Parens Patriae Interest Against the Federal Government.
First, the Commonwealth has failed to establish a sufficient interest in the underlying action. “While Rule 24(a) does not specify the nature of the interest required for a party to intervene as a matter of right, the Supreme Court has recognized that ‘[w]hat is obviously meant . . . is a significantly protectable interest.’” Teague v. Bakker, 931 F.2d 259, 261 (4th Cir. 1991) (quoting Donaldson v. United States, 400 U.S. 517, 531 (1971)). Here, because the Commonwealth fails to establish that it “stand[s] to gain or lose by the direct legal operation of the district court's judgment,” Teague, 931 F.2d at 261, its motion must fail on this basis.
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The Commonwealth asserts a parens patriae interest in the instant proceedings; however, such an interest cannot be recognized here. The doctrine of parens patriae permits a state to sue to vindicate the interests of its citizens in some instances. Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 601 (1982). The Supreme Court, however, made clear more than 80 years ago that a state cannot bring a parens patriae action against federal defendants. See Massachusetts v. Mellon, 262 U.S. at 485–86. In dismissing an action brought by Massachusetts to exempt its citizens from a federal statute designed to “protect the health of mothers and infants,” the Court explained that the citizens of a state “are also citizens of the United States,” and therefore “[i]t 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.” Id. at 478, 485 (emphasis added). The Court stressed 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;” “it is the United States, and not the state, which represents [its citizens] as parens patriae.” Id. at 485–86.
The Supreme Court has consistently applied this principle since Mellon to dismiss actions brought by a state as parens patriae against federal defendants. See Florida v. Mellon, 273 U.S. 12,18 (1927) (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. 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 not have standing as parens patriae to bring an action against the Federal Government.”); Massachusetts v. EPA, 549 U.S. 497, 520 n.17 (2007) (observing that Mellon “prohibits” allowing a state “‘to protect her citizens from the operation of federal statutes’”). And lower courts, including those in this Circuit have done the same. See, e.g., Virginia. ex rel.
7

Case 1:17-cv-00116-LMB-TCB Document 34 Filed 02/02/17 Page 8 of 15 PageID# 223
Cuccinelli v. Sebelius, 656 F.3d 253, 271 (4th Cir. 2011); Wyoming ex rel. Sullivan v. Lujan, 969 F.2d 877, 883 (10th Cir. 1992); State of Nevada v. Burford, 918 F.2d 854, 858 (9th Cir. 1990); Iowa ex rel. Miller v. Block, 771 F.2d 347, 353–54 (8th Cir. 1985); Pennsylvania v. Kleppe, 533 F.2d 668, 676–77 (D.C. Cir. 1976). Accordingly, the Commonwealth of Virginia cannot pursue intervention under a parens patriae theory.3
b. The Commonwealth Fails to Demonstrate that Any Articulated Interest would be Impaired or Impeded by a Denial of the Instant Motion.
Further, assuming arguendo that the Commonwealth’s parens patraie interest is properly asserted here, the Commonwealth fails to establish that this interest would be impaired or impeded by being precluded from intervening in the instant proceedings. The Commonwealth must show that “as a practical matter, its interest may be impaired or ‘impeded’ by the trial court's failure to allow intervention.” Com. of Va. v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976).
Here, however, the Commonwealth merely conclusorily states that “the problems with the . . . Order extend beyond Dulles” and that the Commonwealth would be prejudiced if the Court considers the constitutionality of the Order in this litigation without input from the Commonwealth. ECF No. 19, at 6. This argument, however, is unavailing. The Commonwealth offers no specific evidence or reasoning for why it would be prejudiced by a judgment in this case regarding the Order’s effect on the actual Petitioners, whose putative injuries have been addressed through a signed settlement, or why the Commonwealth cannot protect any independent interests
3 To the extent the Commonwealth’s arguments are predicated on the potential economic repercussions of the Order felt at its public universities, ECF. No. 19, at 4–5, this is unavailing. “In general, a mere economic interest in the outcome of the litigation is insufficient to support a motion to intervene.” Mountain Top Condo. Ass'n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995).
8

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as a plaintiff in a separate lawsuit, after establishing Article III standing. See Westinghouse, 542
F.2d at 216. Therefore, the Commonwealth’s motion should fail on this basis, as well.
III. Permissive Intervention Should Also Be Denied.
The Commonwealth also seeks the Court’s permission to intervene under Rule 24(b) of the
Federal Rules of Civil Procedure. Rule 24(b) provides:
(1) In General. On timely motion, the court may permit anyone to intervene 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.
(2) By a Government Officer or Agency. On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party’s claim or defense is based on: (A) A statue or executive order administered by the officer or agency; or (B) Any regulation, order, requirement, or agreement issued or made under the statute or executive order.
(3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.
As a threshold matter, the Commonwealth has not identified whether it believes it may
intervene under Rule 24(b)(2) as a government officer or agency. Instead, it simply asserts, without
more, that its motion is timely filed, involves similar facts, and addresses the same legal questions.
Therefore, Respondents assume that permissive intervention is being sought under Rule
24(b)(1)(B). However, permission to intervene under this subsection should be denied.
The Commonwealth first asserts that its motion to intervene is timely. Although the motion
was filed shortly after the initiation of this litigation, due to the quick pace at which this litigation
has proceeded, the case is quickly winding down. The two named individual plaintiffs are not in
custody, and the government is in the process of returning them to the United States pursuant to a
signed settlement agreement, see ECF 25, which will resolve the litigation completely, as upon the
9

Case 1:17-cv-00116-LMB-TCB Document 34 Filed 02/02/17 Page 10 of 15 PageID# 225
effective date of the settlement the Petitioners have agreed to dismiss all claims in this lawsuit for all Petitioners. Thus, the motion is simply not timely with respect to the stage of the case.
The Commonwealth next asserts that its motion “addresses the same legal questions (whether the Order is constitutional),” but the petition in this case is primarily focused on the circumstances of two individuals. The legal questions as to these two individual petitioners are already in the process of being resolved, as previously stated. Furthermore, the petition in this case, and the subsequent TRO, focused on legal permanent residents who were allegedly being detained at Dulles International Airport. There are no Lawful Permanent Residents currently being detained at Dulles International Airport, and White House guidance issued subject to January 27 clarifies that legal permanent residents are not subject to the Order. See Memorandum to the Acting Secretary of State, The Acting Attorney General, and the Secretary of Homeland Security (Feb. 1, 2017), attached as Ex. 1 (explaining that “Sections 3(c) and 3(e)” of the Order “do not apply” to “lawful permanent residents of the United States.”). Thus to the extent the Commonwealth might be understood to be asserting an interest in litigation based on Lawful Permanent Residents it has not identified for the parties or the Court but who might theoretically exist and seek admission to the United States through Dulles, such individuals are not subject to the Order. No case or controversy premised on any putative injury to them would exist, let alone one sufficiently related to the Commonwealth’s interests such that it may piggypack on hypothetical claims that would be nonjusticiable and moot in any event.
The Commonwealth finally asserts that its motion involves similar facts—namely, “the status of individuals who have the legal right to be in the United States but are being denied admission or detained”—but the Commonwealth’s claims do not share common questions of fact with the Petitioners’. The Commonwealth seeks to intervene on behalf of lawful permanent
10

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residents, students, and others who have been living, working, or studying in Virginia to “vindicate its residents’ civil rights.” Petitioners do not even intend to reside, or attend school in Virginia. Petitioners were attempting to immigrate to the United States to live in Michigan, not Virginia. Therefore, these two individuals would have only a de minimis, if any, connection to or impact on the Commonwealth of Virginia. “The purpose for which permission to intervene may be given is that the applicant may be put in position to assert in that suit a right which it has in respect to something in dispute between the original parties.” True Gun-All Equip. Corp. v. Bishop Int'l Eng'g Co., 26 F.R.D. 150, 151 (E.D. Ky. 1960) (internal citations omitted). There is simply no “right” of the Commonwealth in the dispute between these parties.
The Court must also consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights. In this case, intervention will only serve to slow the resolution of the original parties’ case, which, as previously explained, is quickly coming to a close. The petitioners and respondent have reached a final settlement in this matter, which, once fully executed, all parties expect will completely resolve this litigation. In light of this significant development, granting the motion to intervene would only unnecessarily prolong the satisfactory resolution of this case—a waste of scarce judicial resources.
Finally, even if the Court finds that intervention is permissible, the Court has discretion to permit or deny intervention under this rule. “Permissive intervention is wholly discretionary with the district court even though there is a common question of law or fact, or the requirements of Rule 24(b) are otherwise satisfied.” Kneeland v. National Collegiate Athltic Ass’n., 806 F.2d 1285, 1289 (5th Cir. 1987) (citation and internal punctuation omitted); accord Staley v. Harris Cty., Texas, 160 F. App’x 410, 414 (5th Cir. 2005). In this case, the Court should deny the motion to intervene. In its motion to intervene the Commonwealth has not identified a single resident of
11

Case 1:17-cv-00116-LMB-TCB Document 34 Filed 02/02/17 Page 12 of 15 PageID# 227 Virginia affected by the challenged action. The harm the Commonwealth has identified—the potential inability of some teachers and students in Virginia, and the accompanying potential loss of tuition revenue or grant money—is largely speculative. Accordingly, for the above reasons, the Court should deny intervention under Rule 24(b), as well. CONCLUSION For the foregoing reasons, the Court should deny the Commonwealth’s motion to intervene. /// ///
12

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Respectfully submitted, DATE: February 2, 2017

DANA J. BOENTE United States Attorney

CHAD A. READLER Acting Assistant Attorney General Civil Division

WILLIAM PEACHEY Director Civil Division, Office of Immigration Litigation

By:

/s/________________

DENNIS C. BARGHAAN, JR.

Assistant U.S. Attorney

2100 Jamieson Avenue

Alexandria, Virginia 22314

Telephone: (703) 299-3891

Fax:

(703) 299-3983

Email: dennis.barghaan@usdoj.gov

EREZ R. REUVENI

Senior Litigation Counsel

Civil Division, Office of Immigration Litigation

P.O. Box 868

Ben Franklin Station

Washington, D.C. 20044

Telephone: (202) 307-4293

Fax:

(202) 616-8962

Email: erez.r.reuvani@usdoj.gov

ATTORNEYS FOR RESPONDENTS

13

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CERTIFICATE OF SERVICE I hereby certify that on this date, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will transmit a true and correct copy of the same to the following: Simon Sandoval Moshenburg Legal Aid Justice Center 6066 Leesburg Pike, Suite 520 Falls Church, Virginia 22041 Email: Simon@justice4all.org Counsel for Petitioners
Stuart Alan Raphael Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 804-786-7240 Fax: 804-371-0200 Email: sraphael@oag.state.va.us Trevor Stephen Cox Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 (804) 786-7704 Fax: (804) 371-0200 Email: tcox@oag.state.va.us Counsel for the Commonwealth of Virginia
/// ///
14

Case 1:17-cv-00116-LMB-TCB Document 34 Filed 02/02/17 Page 15 of 15 PageID# 230

Timothy J. Heaphy Hunton & Williams LLP (DC-Pennsylvania Ave) 2200 Pennsylvania Ave NW Washington, DC 20037 202-955-1500 Fax: 202-778-2201 Email: theaphy@hunton.com
Counsel for Osman Nasreldin and Sahar Kamal Ahmed Fadul

Date: February 2, 2017

/s/________________

DENNIS C. BARGHAAN, JR.

Assistant U.S. Attorney

2100 Jamieson Avenue

Alexandria, Virginia 22314

Telephone: (703) 299-3891

Fax:

(703) 299-3983

Email: dennis.barghaan@usdoj.gov

ATTORNEYS FOR RESPONDENTS

15

Case 1:17-cv-00116-LMB-TCB Document 34-1 Filed 02/02/17 Page 1 of 1 PageID# 231

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 1:17-cv-00116-LMB-TCB Document 52 Filed 02/08/17 Page 1 of 2 PageID# 353

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al..

COMMONWEALTH OF VIRGINIA,

Civil Action No. l:17-cv-00116

OSMAN NASRELDIN and SAHAR KAMAL
AHMED FADUL,
Intervenor-Plaintiffs,
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOM AND BORDER
PROTECTION; JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WAYNE BIONDI, Customs and Border Protection (CBP) Port Director of the Area Port of Washington, Dulles.
Respondents
NOTICE OF SETTLEMENT AND VOLUNTARY DISMISSAL
Intervenor-Plaintiff Osman Nasreldin and Intervenor-Plaintiff Sahar Kamal Ahmed Fadul
(collectively, "the Intervenor-Plaintiffs") hereby notify the Court that they have reached an agreement with the Respondents to resolve all of their claims remaining in the above-captioned
case.
On February 3, 2017, this Court ordered the Intervenor-Plaintiffs to file a Complaint in
this civil action no later than February 7, 2017. In light of the agreement, the Intervenor-

Case 1:17-cv-00116-LMB-TCB Document 52 Filed 02/08/17 Page 2 of 2 PageID# 354

 
 Case 1:17-cv-00116-LMB-TCB Document 76 Filed 02/08/17 Page 1 of 1 PageID# 795

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

COMMONWEALTH OF VIRGINIA,

Plaintiff,

V.

l:17-cv-116(LMB/TCB)

DONALD TRUMP, M M.,

Defendants.

ORDER

Before the Court is a Motion for Leave to File Brief of Amici Curiae in Support of

Intervenor-Petitioner the Commonwealth of Virginia ("Motion"), which establishes good cause for the relief requested. Accordingly, the Motion [Dkt. 66] is GRANTED and it is hereby

ORDERED the amici curiae named in the Motion file the proposed brief forthwith.

The Clerk is directed to forward copies of this Order to counsel of record.

Entered this day of February, 2017.

Alexandria, Virginia
:/

/s/_ Leonie Brinkema
United States District Judge

 
 Case 1:17-cv-00116-LMB-TCB Document 58 Filed 02/08/17 Page 1 of 3 PageID# 411

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

The Commonwealth of Virginia, Osman Nasreldin, and Sahar Kamal Ahmed Fadul,

Intervenor-Petitioners,

v.
Donald Trump, the U.S. Department of Homeland Security, U.S. Customs and Border Protection, John Kelly, Kevin K. McAleenan, and Wayne Biondi,

Case 1:17-cv-00116-LMB-TCB

Respondents.

CONSENT MOTION OF THE ANTI-DEFAMATION LEAGUE FOR LEAVE TO FILE AMICUS-CURIAE BRIEF IN SUPPORT OF INTERVENORPETITIONERS The Anti-Defamation League respectfully requests leave to file an amicus-curiae brief in
support of the challenge of Commonwealth of Virginia and other intervenor-petitioners to Executive Order 13,769, 82 Fed. Reg. 8977 (Feb. 1, 2017), which purported to “Protect[] the Nation From Foreign Terrorist Entry Into the United States.” ADL sought and has received consent from the parties to its motion. Accordingly, ADL waives a hearing on its motion. A proposed order is attached as Exhibit 1, and ADL’s proposed amicus-curiae brief is attached as Exhibit 2.
ADL is a civil-rights and human-relations organization founded in 1913 to stop the defamation of Jewish people and to secure justice and fair treatment for all. Through its twentysix regional offices throughout the United States, ADL provides materials, programs, and services to combat anti-Semitism and all forms of bigotry. As explained in the concurrently filed brief in support, because of its long-standing dedication to fighting discrimination, including

Case 1:17-cv-00116-LMB-TCB Document 58 Filed 02/08/17 Page 2 of 3 PageID# 412

with respect to immigrants and religious minorities, ADL can provide unique and important perspective for this Court’s disposition of this case. And, as noted, all parties have consented to ADL’s appearance as an amicus.
Accordingly, ADL respectfully requests the Court to grant it leave to appear as an amicus and allow the filing of ADL’s amicus-curiae brief.

Dated: February 8, 2017
Of Counsel:
John B. Harris Jeremy Goldman Caren Decter Jessica Smith Rayna Lopyan Lily Landsman-Roos Lakendra Barajas Frankfurt Kurnit Klein & Selz, P.C. 488 Madison Avenue New York, New York 10022
Steven M. Freeman Lauren A. Jones Melissa Garlick Michael Lieberman Anti-Defamation League 605 Third Avenue New York, New York 10158
Doron F. Ezickson Anti-Defamation League 1100 Connecticut Avenue, Northwest, Suite 1020 Washington, District of Columbia 20036

Respectfully submitted,
/s/ Joshua David Rogaczewski (Va. Bar No. 65880) (jrogaczewski@mwe.com) McDermott Will & Emery LLP The McDermott Building 500 North Capitol Street, Northwest Washington, District of Columbia 20001-1531 202.756.8195 202.591.2757 fax
Counsel to the Anti-Defamation League

2

Case 1:17-cv-00116-LMB-TCB Document 58 Filed 02/08/17 Page 3 of 3 PageID# 413
CERTIFICATE OF SERVICE I hereby certify that on February 8, 2017, I electronically filed the foregoing Consent Motion of the Anti-Defamation League for Leave To File Amicus-Curiae Brief in Support of Intervenor-Petitioners with the Clerk of Court using the ECF system, which will send notification of such filing to all ECF participants.
/s/ Joshua David Rogaczewski (Va. Bar No. 65880) (jrogaczewski@mwe.com) McDermott Will & Emery LLP The McDermott Building 500 North Capitol Street, Northwest Washington, District of Columbia 20001-1531 202.756.8195 202.591.2757 fax Counsel to the Anti-Defamation League
3

Case 1:17-cv-00116-LMB-TCB Document 58-1 Filed 02/08/17 Page 1 of 2 PageID# 414
Exhibit 1 to Consent Motion of the Anti-Defamation League for Leave To File Amicus-Curiae Brief in Support of
Intervenor-Petitioners
[Proposed] Order Granting the Anti-Defamation League’s Motion for Leave To Appear as an Amicus
Curiae

Case 1:17-cv-00116-LMB-TCB Document 58-1 Filed 02/08/17 Page 2 of 2 PageID# 415

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

The Commonwealth of Virginia, Osman Nasreldin, and Sahar Kamal Ahmed Fadul,

Intervenor-Petitioners,

v.
Donald Trump, the U.S. Department of Homeland Security, U.S. Customs and Border Protection, John Kelly, Kevin K. McAleenan, and Wayne Biondi,

Case 1:17-cv-00116-LMB-TCB

Respondents.

[PROPOSED] ORDER GRANTING THE ANTI-DEFAMATION LEAGUE’S MOTION FOR LEAVE TO APPEAR AS AN AMICUS CURIAE
Before the Court is the Consent Motion of the Anti-Defamation League for Leave To File Amicus-Curiae Brief in Support of Intervenor-Petitioners. The Anti-Defamation League (“ADL”) is a third party with a significant interest in this litigation, and the Court finds that its proposed amicus-curiae brief will be helpful to the Court in its resolution of this case. Moreover, all parties have consented to ADL’s motion. Accordingly, it is hereby
ORDERED that the motion for leave by ADL [Dkt. No. ___] be and is GRANTED and ADL is ORDERED to file its proposed amicus-brief as soon as reasonably possible.
Entered this ____ day of February, 2017.

Alexandria, Virginia

Leonie M. Brinkema United States District Judge

Case 1:17-cv-00116-LMB-TCB Document 58-2 Filed 02/08/17 Page 1 of 28 PageID# 416
Exhibit 2 to Consent Motion of the Anti-Defamation League for Leave To File Amicus-Curiae Brief in Support of
Intervenor-Petitioners
Amicus-Curiae Brief of the Anti-Defamation League in Support of Intervenor-Petitioners

Case 1:17-cv-00116-LMB-TCB Document 58-2 Filed 02/08/17 Page 2 of 28 PageID# 417

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

The Commonwealth of Virginia, Osman Nasreldin, and Sahar Kamal Ahmed Fadul,

Intervenor-Petitioners,

v.
Donald Trump, the U.S. Department of Homeland Security, U.S. Customs and Border Protection, John Kelly, Kevin K. McAleenan, and Wayne Biondi,

Case 1:17-cv-00116-LMB-TCB

Respondents.

AMICUS-CURIAE BRIEF OF THE ANTI-DEFAMATION LEAGUE IN SUPPORT OF INTERVENOR-PETITIONERS

Of Counsel:
John B. Harris Jeremy Goldman Caren Decter Jessica Smith Rayna Lopyan Lily Landsman-Roos Lakendra Barajas Frankfurt Kurnit Klein & Selz, P.C. 488 Madison Avenue New York, New York 10022
Steven M. Freeman Lauren A. Jones Melissa Garlick Michael Lieberman Anti-Defamation League 605 Third Avenue New York, New York 10158
Doron F. Ezickson Anti-Defamation League 1100 Connecticut Avenue, Northwest, Suite 1020 Washington, District of Columbia 20036

Joshua David Rogaczewski (Va. Bar No. 65880) (jrogaczewski@mwe.com) McDermott Will & Emery LLP The McDermott Building 500 North Capitol Street, Northwest Washington, District of Columbia 20001-1531 202.756.8195 202.591.2757 fax
Counsel to the Anti-Defamation League

Case 1:17-cv-00116-LMB-TCB Document 58-2 Filed 02/08/17 Page 3 of 28 PageID# 418
TABLE OF CONTENTS STATEMENT OF INTEREST....................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 ARGUMENT .................................................................................................................................. 3 I. America’s Aspirations as a Refuge for the Oppressed. ...................................................... 3 II. America Is at Its Best When It Honors Its Commitment to Its Core Values. ..................... 7 III. When America Closed Its Doors and Allowed Its Core Values to be
Compromised, the Country Later Looked Back in Shame. .............................................. 11 A. The St. Louis and Jewish Refugees During the Holocaust ................................... 11 B. The Chinese Exclusion ......................................................................................... 15 C. The Japanese Internment....................................................................................... 18 CONCLUSION............................................................................................................................. 20 APPENDIX................................................................................................................................... 22

Case 1:17-cv-00116-LMB-TCB Document 58-2 Filed 02/08/17 Page 4 of 28 PageID# 419
TABLE OF AUTHORITIES Cases League of Women Voters of N. Carolina v. North Carolina,
769 F.3d 224 (4th Cir. 2014) .....................................................................................................3 Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008).......................................................................................................................3 Statutes 50 U.S.C. § 4202......................................................................................................................19, 20 Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882) (repealed 1943) ..........................15, 16, 17, 18 Civil Liberties Act, 50 U.S.C. § 4201 et seq............................................................................19, 20 Displaced Persons Act of 1948 (Pub.L. 80–774).............................................................................7 Geary Act, ch. 60, 27 Stat. 525 (1892) (repealed 1943) ................................................................17 Immigration and Nationality Act of 1965 (H.R. 2580; Pub.L. 89–236, 79 Stat.
911, enacted June 30, 1968).......................................................................................................9 Refugee Act of 1980 (Public Law 96-212)......................................................................................9 Scott Act (1888), ch. 1064, 22 Stat. 504 (1888) (repealed 1943) ..................................................16

Case 1:17-cv-00116-LMB-TCB Document 58-2 Filed 02/08/17 Page 5 of 28 PageID# 420
STATEMENT OF INTEREST The Anti-Defamation League (“ADL”) respectfully submits this brief as amicus-curiae in support of the relief sought by the Commonwealth of Virginia and the other intervenorpetitioners 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 grant Intervenor-Petitioners’ motion for a preliminary injunction enjoining enforcement of certain 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, ADL provides materials, programs and services to combat anti-Semitism and all forms of bigotry. Because of its history fighting discrimination, including 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 barring entry into the United States of refugees, as well as persons coming from seven majority-Muslim nations.2
1 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 its counsel, made any monetary contribution toward the preparation or submission of this brief.
2 ADL is aware that the parties dispute whether the Executive Order constitutes a ban of Muslims as opposed to 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.

Case 1:17-cv-00116-LMB-TCB Document 58-2 Filed 02/08/17 Page 6 of 28 PageID# 421
BACKGROUND The United States is a nation dedicated to the ideals of equality, liberty and justice. (See infra Section I.) Adhering to these principles under changing domestic and international circumstances often is a work in progress. Throughout the history of the United States, and frequently with respect to immigration, our ideals have been tested. Sometimes the nation rises to meet the challenge, upholding the values that make America exceptional. (See infra Section II.) At other times, when prejudice and fear predominate over reason and compassion, we falter, often with devastating consequences. (See infra Section III.) We turned our backs on the St. Louis, a ship with nearly 1,000 Jews fleeing from Nazi Germany, condemning hundreds of them to their deaths; we passed laws that overtly excluded and discriminated against the Chinese; and we rounded up more than 100,000 Japanese Americans and interned them in prison camps in the 1940s. In each instance, when we later realized that we had strayed from our principles, we were left to apologize to the people who suffered, or to their descendants, or to the memory of those who perished without descendants, in each case promising to learn from our mistakes and not to repeat them. 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 dragged from his prison cell and lynched in 1915.3 ADL regularly
3 See Wendell Rawls, Jr., After 69 Years of Silence, Lynching Victim is Cleared, N.Y. TIMES, Mar. 8, 1982. 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 posthumously pardoned Frank on the grounds that the State failed to protect him while he was in its custody. See STATE BOARD OF PARDONS AND PAROLES, Pardon of Leo Frank (Mar. 11, 1986), http://www.gpb.org/files/georgiastories/nsouthfrank176.jpg. See also Leonard Dinnerstein, Leo Frank Case, NEW GEORGIA ENCYCLOPEDIA,
2

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confronts discrimination against perceived outsiders, foreigners and strangers. As an organization founded by immigrants, as an organization sworn to protect the interests of religious and ethnic minorities, ADL believes that when our nation’s values are threatened, we are dutybound to look back at the founding principles that propelled this nation of immigrants – in the hope that future generations can celebrate our resolve.
ARGUMENT As the U.S. Supreme Court has held, a petitioner seeking a preliminary injunction must demonstrate that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).4 With this brief, ADL seeks to provide important insight regarding how the Executive 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. ADL 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. 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
http://www.georgiaencyclopedia.org/articles/history-archaeology/leo-frank-case (last visited Feb. 7 2017).
4 See also League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014) (citing Winter, supra).
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upon a hill,” with the entire world watching.5 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.
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 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.”7
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
5 John Winthrop, A Model of Christian Charity (1630). 6 Thomas Paine, Common Sense (Jan. 10, 1776). 7 Declaration of Independence (July 4, 1776).
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to Virginia’s General Assembly that would have levied a modest tax to support Christian education.8 Madison warned that any measure, no matter how slight, that gave a preference to one religion over another would constitute “a dangerous abuse of power” and would betray the vision of America as a shining 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 (sic) in their due extent, may offer a more certain repose from his Troubles.9 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.10 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
8 James Madison, Memorial and Remonstrance against Religious Assessments ¶ 9 (Jun. 20, 1785).
9 Id. (emphasis added). 10 Virginia’s Statute for Religious Freedom (Jan. 16, 1786)
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“meant to 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.”11
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.”12 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.”13
The vision of the “shining city on the hill” has also inspired poets. In 1856, Walt Whitman wrote: “These States are the amplest poem, here is not merely a nation but a teeming Nation of nations.”14 Emma Lazarus’ immortal sonnet, enshrined on the pedestal of the Statue of Liberty, urges “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!”15
These values have endured to the modern day. 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 subject to religious persecution and those facing other overpowering hardship. He
11 Thomas Jefferson, Autobiography, Works 1:71 (1821). 12 Abraham Lincoln, Letter to Joshua F. Speed (Aug. 24, 1855). 13 Id. 14 Walt Whitman, Preface to Leaves of Grass (1855). 15 Emma Lazarus, The New Colossus (1883).
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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.”16
On the eve of his election as President in 1980, Ronald Reagan also took inspiration from Winthrop’s vision of America:
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.17 II. America Is at Its Best When It Honors Its Commitment 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.”18 At its best, the United States has been a beacon of hope for refugees from war-torn countries, victims of religious persecution, natural disasters or other emergencies, fulfilling what President Kennedy described in A 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.”19 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 had done hundreds of years
16 John F. Kennedy, A Nation of Immigrants 7 (Harper Perennial, January 2008). 17 Ronald Reagan, Election Eve Address (Nov. 3, 1980). 18 Ronald Reagan, Farewell Address to the Nation, (Jan. 11, 1989). 19 Kennedy, supra note 16 at 46.
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earlier.20 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 World War II.21
These new laws 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 Dietrich, Albert Einstein, Enrico Fermi, Henry Kissinger, Raphael Lemkin, Thomas Mann, 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 seeking freedom from the Soviet Union, Cuba, Hungary, Poland, and Yugoslavia, as well as those fleeing Southeast Asia after the Vietnam 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.22 Examples of notable refugees that
20 David W. Haines, “Learning From our Past: The Refugee Experience in the United States,” AMERICAN IMMIGRATION COUNCIL, http://www.americanimmigrationcouncil.org/research/refugee-experience-united-states (last visited Feb. 7, 2017).
21 Id. In so doing, as set forth below, the United States began the process of making amends for the tragic consequences of its turning away Jewish refugees during World War II, dooming many of them to death or excruciating years in concentration camps.
22 Haines, supra note 20.
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came to the United States from this period include: Sergey Brin, Joseph Brodsky, Gloria Estefan, Milos Forman, Wyclef Jean, Miriam Makeba, Thomas Peterffly, Regina Spektor and David Tran.
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 South America, Asia, Africa, the Middle East, and Southern and Eastern Europe, abolishing the previous quotas that has been set based on national origin. 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 JacksonVanik 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.
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;23 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
23 William J. Clinton, “Statement on Signing the Hmong Veterans Naturalization Act of 2000” (May 26, 2000).
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through the “Specter Amendment.”24 Since 1975, the United States has settled over 3 million refugees.25
It should come as no surprise, then, 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 U.S. population); or that the revenue generated by these companies is
greater than the GDP of every country in the world outside the United States except China and
Japan; or that successful global 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).26 At least 18 percent of all scientists living in the U.S., of which there are millions, are immigrants or refugees,27 and over 25% of all physicians and surgeons in the United States are born abroad.28 And as of 2016,
roughly 2 million veterans of the U.S. Armed Forces living in the United States—of a total 18.8
24 Andorra Bruno, CONG. RESEARCH SERV., RL31269, “Refugee Admissions and Resettlement Policy” (Nov. 30, 2016).
25 Ruth Igielnick and Jens Manuel Krogstad, “Where Refugees to the U.S. Come From,” PEW RESEARCH CENTER, (Feb. 3, 2017), http://www.pewresearch.org/facttank/2017/02/03/where-refugees-to-the-u-s-come-from/.
26 PARTNERSHIP FOR THE NEW AMERICAN ECONOMY, “The ‘New American’ Fortune 500,” (June 2011), http://www.renewoureconomy.org/sites/all/themes/pnae/img/new-americanfortune-500-june-2011.pdf.
27 Flora Lan, Katherine Hale, and Emilda Rivers, “Immigrants’ Growing Presence in the U.S. Science and Engineering Workforce: Education and Employment Characteristics in 2013,” NATIONAL CENTER FOR SCIENCE AND ENGINEERING STATISTICS (Sept. 2015), https://www.nsf.gov/statistics/2015/nsf15328/nsf15328.pdf.
28 Nicole Fisher, “25% of Physicians Are Born Outside the U.S. Can Immigration Reform Fix The Shortage?” FORBES: PHARMA & HEALTHCARE (Jul. 12, 2016), http://www.forbes.com/sites/nicolefisher/2016/07/12/25-of-docs-are-born-outside-of-the-u-s-canimmigration-reform-solve-our-doc-shortage/#446de1bc702b.
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million—are refugees/immigrants or have refugee/immigrant parents.29 As President Kennedy observed, “[t]here is no part of our nation that has not been touched by our immigrant background.”30 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 and the denial of visas) or other religious minorities, sometimes they were from nations that were regarded as undesirable (the Chinese exclusion) and sometimes they were groups the government suspected as disloyal (the Japanese internment during World War II). In each case, the United States apologized years later, after it was too late. A. The St. Louis and Jewish Refugees During the Holocaust 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,31 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.
29 Jie Song and Jeanne Batalova, “Immigrant Veterans in the United States,” MIGRATION POLICY INSTITUTE (Oct. 13, 2016), http://www.migrationpolicy.org/article/immigrant-veteransunited-states.
30 Kennedy, supra note 16, at 3. 31 Kristallnacht, or the “Night of Broken Glass,” occurred in November 1938, when almost 100 Jews were murdered, countless more were attacked, and as many as 30,000 Jewish men were arrested and sent to concentration camps. See THE HOLOCAUST ENCYCLOPEDIA, UNITED STATES HOLOCAUST MEMORIAL MUSEUM, “Kristallnacht,” https://www.ushmm.org/wlc/en/article.php?ModuleId=10005201. (Last visited Feb. 7, 2017).
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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 United States 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.32 While United States-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.33
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,34 reflecting anti-immigrant and anti-Semitic sentiments prevailing at the time.35 A State Department telegram to a passenger on the ship explained the government’s position that the
32 THE HOLOCAUST ENCYCLOPEDIA, UNITED STATES HOLOCAUST MEMORIAL MUSEUM, “Voyage of the St. Louis,” https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267. (Last visited Feb. 7, 2017).
33 Id.; see also Dara Lind, How America’s Rejection of Jews Fleeing Nazi Germany Haunts Our Refugee Policy Today, VOX (Jan. 27, 2017, 8:12 AM). http://www.vox.com/policyand-politics/2017/1/27/14412082/refugees-history-holocaust.
34 Kristine Guerra, What the U.S. Learned from Turning Away Refugees who Fled the Nazis, THE WASHINGTON POST (Jan. 29, 2017) https://www.washingtonpost.com/news/postnation/wp/2017/01/29/what-the-u-s-learned-from-turning-away-refugees-who-fled-thenazis/?utm_term=.e91085b6c047.
35 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 were opposed. See Ishaan Tharoor, What Americans Thought of Jewish Refugees on the Eve of World War II, THE WASHINGTON POST (Nov. 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.
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passengers must “await their turns on the [visa] waiting list and qualify for and obtain immigration visas before they may be admissible into the United States.”36
Ultimately, the United States refused entry to the passengers of the St Louis, forcing it to sail back to Europe.37 Historians estimate that more than a quarter of the St. Louis passengers— 254 people—were killed in the Holocaust, including a number at Auschwitz, after being refused entry to the United States.38
In April 2009, at a commemoration for Yom HaShoah (Holocaust Remembrance Day) held at the U.S. Capitol before the President and members of Congress, Fred S. Zeidman, chairman of the U.S. Holocaust Memorial Council, recalled the “infamous ship called the St. Louis” and reminded those gathered of the “shameful result” and the consequences of inaction.39 Three years later, the United States government issued a formal apology for the country’s refusal to provide refuge for the Jewish passengers aboard the St. Louis.40 Addressing the 14 surviving passengers, a State Department official stated: “To the survivors of the MS St. Louis, on behalf of
36 See “Voyage of the St. Louis,” supra note 32. 37 Recent images of refugee-seekers, having disembarked at U.S. airports after days-long journeys, being immediately sent back to the countries from which they had fled, unavoidably call to mind the passengers of the St. Louis who were turned away within sight of U.S. sanctuary. See Appendix. 38 See “Voyage of the St. Louis,” supra note 32. 39 AMERICAN JEWISH JOINT DISTRIBUTION COMMITTEE ARCHIVES, “Fred S. Zeidman’s Remarks, Days of Remembrance Commemoration” (Apr. 23, 2009), http://archives.jdc.org/assets/documents/stlouis_fredszeidmanremarks2009.pdf. 40 Kamrel Eppinger, State Department apologizes to Jewish refugees, SCRIPPS HOWARD FOUNDATION WIRE (Sep. 26, 2012) http://www.shfwire.com/state-department-apologizes-jewishrefugees/.
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the president and Secretary of State, I am honored to say what we should’ve said so long ago, welcome.”41 (Archival photographs from the St. Louis are contained in the Appendix).
The passengers of the St. Louis were not the only victims of America’s refusal to grant
visas to Jews and other minorities during the Holocaust. Before the St. Louis sailed, Congress
rejected a bill that would have allowed 20,000 imperiled 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, refused to be swayed by the children’s
vulnerability, testifying that “20,000 charming children would all too soon grow into 20,000 ugly adults.”42 Countless Jews denied visas to enter the United States ultimately perished in Nazi concentration camps, including the Dutch teenager Anne Frank.43 Historian Richard Brietman
reminds us that if not for an immigration policy steeped in fear, an elderly Anne Frank could still be living in the United States today.44 Instead she was murdered at Bergen-Belsen, made
immortal by the teenage diary that survived her.
41 Id. 42 See Lind, supra note 33. 43 In 1938, Otto Frank first applied for immigrant visas for himself, his wife Edith, and their two daughters Margot and Anne. See Richard Breitman, Blocked by National Security Fears?: The Frank Family and Shifts in American Refugee Policy, 1938-1941, YIVO INSTITUTE FOR JEWISH RESEARCH (Feb. 14, 2007), https://www.yivo.org/cimages/richardbreitmanottofrank-whitepaper.pdf?c=. The family was placed on a waiting list, which by 1939 had grown to include 300,000 individuals. Id. at 2. Despite having multiple people willing to provide affidavits for the Frank family, Otto was met with additional regulations, including proof of booked transportation to the U.S., verification that no close relatives remained in German territories, and the specter of the German refugee quota. Id. at 5. Ultimately, the Frank family was denied refugee status and Anne, along with her mother and sister, all died in the concentration camps. 44 Elahe Izadi, Anne Frank and her family were also denied entry as refugees to the U.S., WASHINGTON POST, (Nov. 24, 2015),
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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.45 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.46 Nevertheless, hostility towards the Chinese escalated within certain portions of the American public, who blamed wage decreases and other economic difficulties on Chinese laborers.47 Although Government leaders initially resisted constituent pressure to stop Chinese immigration,48 a “campaign of organized violence against Chinese communities took form, and the hysteria led to public pressure too violent to be resisted.”49 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.”50 The thrust of the Chinese Exclusion Act was that it barred Chinese laborers from entering the United States for 10 years,51 but it also put in place other discriminatory systems,
https://www.washingtonpost.com/news/worldviews/wp/2015/11/24/anne-frank-and-her-familywere-also-denied-entry-as-refugees-to-the-u-s/?utm_term=.6e028f50e0dd.
45 See H.R. Res. 683, 114th Cong. (as passed by House, June 18, 2012); see also Kennedy, supra note 16 at 40.
46 Kennedy, supra note 16 at 40. 47 HARVARD UNIVERSITY LIBRARY OPEN COLLECTIONS PROGRAM, Chinese Exclusion Act (1882), http://ocp.hul.harvard.edu/immigration/exclusion.html (last visited Feb. 7, 2017). 48 President Arthur initially vetoed the bill, which he viewed as incompatible with the Burlingame Treaty. See Chester A. Arthur, “Veto of the Chinese Exclusion Act” (Apr. 4, 1882). 49 Kennedy, supra note 16 at 41. 50 S.J. Res. 23, Res. Chap. 134 (Ca. 2014). 51 Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882) (repealed 1943) (hereinafter “Chinese Exclusion Act.”).
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including a registry for all Chinese (including non-laborers) who were then legally present in the United States.52 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.53 The Act also explicitly prohibited all state and federal courts from naturalizing people of Chinese origin, regardless of whether they were legally in this country.54 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 . . . .”55
The Chinese Exclusion Act was followed by a series of other laws designed to exclude the Chinese from the United States, both physically and politically. The Scott Act of 188856 precluded Chinese laborers from leaving and reentering the United States entirely and cancelled all previously issued “certificates” as referenced in the Exclusion Act.57 This action prevented the return of approximately 20,000 Chinese laborers who were abroad and had lawfully-obtained certificates permitting them to re-enter.58 It also froze the migration of an additional 600 Chinese individuals who were en route to the United States at the time of its enactment.59 When the
52 Id. 53 Id.; see also S.J. Res. 23, Res. Chap. 134 (Ca. 2014). 54 Chinese Exclusion Act § 14; see also S.J. Res. 23, Res. Chap. 134 (Ca. 2014). 55 Chinese Exclusion Act, preamble. 56 The Scott Act (1888), ch. 1064, 22 Stat. 504 (1888) (repealed 1943). 57 S. Res. 201, 112th Cong. (as passed by Senate, Oct. 6, 2011); see also H.R. Res. 683, 114th Cong. 58 S. Res. 201, 112th Cong. 59 Id.
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Chinese Exclusion Act was set to expire in 1892, Congress passed the Geary Act,60 which extended Chinese exclusion for another ten years and introduced even more restrictions.61 It was not until 1943 that Congress finally began repealing certain – and eventually all – of these discriminatory laws.62
The repeal of the Chinese exclusionary laws was a first step in re-establishing the ideals of the Founders. In October 2011, the United States Senate finally issued an apology for the Chinese Exclusion Act and other laws.63 A similar report was announced by the United States House of Representatives64 and, later, by the California State Legislature.65 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.”66 The announcements expressed a commitment to “diversity in the United States that contributes to the country’s economic, cultural, technological, academic, and political growth.”67
In its apology, the California legislature observed:
60 The Geary Act, ch. 60, 27 Stat. 525 (1892) (repealed 1943). 61 S. Res. 201, 112th Cong. 62 Id. 63 Id. 64 H.R. Res. 683, 114th Cong. 65 S.J. Res. 23, Res. Chap. 134 (Ca. 2014). 66 S. Res.201, 112th Cong.; see also S.J. Res. 23, Res. Chap. 134 (Ca. 2014) (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”). 67 S.J. Res. 23, Res. Chap. 134 (Ca. 2014).
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The 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 . . . .68 Simply put, our nation’s leaders recognized that racism breeds racism, and any governmental policies that conflict with the founding ideals of this country cannot be allowed to stand. C. The Japanese Internment The internment of Japanese-Americans was authorized by Executive Order 9066,69 which President Roosevelt issued in early 1942, 10 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.70 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 Japanese Americans, including 70,000 citizens, to internment camps in desolate areas of the United States for the duration of World War II.71 The justification for Executive Order 9066 was “military necessity.”72 However, Congress has since acknowledged that “these actions were carried out without adequate security
68 Id. 69 7 Fed. Reg. 1407 (Feb. 19, 1942). 70 Id. 71 See Roger Daniels, Concentration Camps USA: Japanese Americans and World War II 33, 104 (1972). 72 U.S. COMM’N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, REPORT: PERSONAL JUSTICE DENIED at 6-8 (96th Cong.) (1982).
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reasons and . . . were motivated largely by racial prejudice, wartime hysteria, and a failure of political leadership.”73 This conclusion was bolstered by the fact that no effort was made to invoke Executive Order 9066 to authorize internment of German-Americans and/or ItalianAmericans.74
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 Civilians issued a report entitled, “Personal Justice Denied.” The report set the stage for the historic 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.75 President Reagan, in his remarks on signing the Act, made clear that the internment of Japanese Americans was a “grave wrong.”76 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 . . .
73 50 U.S.C. § 4202. 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. Stephen White, “Many Americans Support Trump’s Immigration Order; Many Americans Backed Japanese Internment Camps, Too,” THE WASHINGTON POST (Feb. 2, 2017).
74 See U.S. COMM’N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, supra note 72 at 3.
75 See 50 U.S.C. § 4201 et seq. 76 Ronald Reagan, Remarks on Signing the Bill Providing Restitution for the Wartime Internment of Japanese-American Civilians (Aug. 10, 1988).
19

Case 1:17-cv-00116-LMB-TCB Document 58-2 Filed 02/08/17 Page 24 of 28 PageID# 439
individuals of Japanese ancestry” and caused “enormous damages, both material and intangible, . . . which resulted in significant human suffering.”77
CONCLUSION ADL believes that 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 desperately seeking safety, excluded immigrants from China and interned Japanese Americans. 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.
77 50 U.S.C. § 4202. 20

Case 1:17-cv-00116-LMB-TCB Document 58-2 Filed 02/08/17 Page 25 of 28 PageID# 440

Dated: February 8, 2017
Of Counsel:
John B. Harris Jeremy Goldman Caren Decter Jessica Smith Rayna Lopyan Lily Landsman-Roos Lakendra Barajas Frankfurt Kurnit Klein & Selz, P.C. 488 Madison Avenue New York, New York 10022
Steven M. Freeman Lauren A. Jones Melissa Garlick Michael Lieberman Anti-Defamation League 605 Third Avenue New York, New York 10158
Doron F. Ezickson Anti-Defamation League 1100 Connecticut Avenue, Northwest, Suite 1020 Washington, District of Columbia 20036

Respectfully submitted,
/s/ Joshua David Rogaczewski (Va. Bar No. 65880) (jrogaczewski@mwe.com) McDermott Will & Emery LLP The McDermott Building 500 North Capitol Street, Northwest Washington, District of Columbia 20001-1531 202.756.8195 202.591.2757 fax
Counsel to the Anti-Defamation League

21

Case 1:17-cv-00116-LMB-TCB Document 58-2 Filed 02/08/17 Page 26 of 28 PageID# 441 APPENDIX
The Journey of the St. Louis and its Passengers
Source: “Map Showing the Voyage of the St. Louis, May 13-June 17, 1939.”, American Jewish
Joint Distribution Committee Archives, “The Story of the S.S. St. Louis (1939)”; http://archives.jdc.org/educators/topic-guides/the-story-of-the-ss-st.html (Last visited February 5, 2017).

Source: Dara Lind, “How America’s Rejection of Jews Fleeing Nazi German Haunts our Refugee Policy Today,” Vox (January 27 2017), http://www.vox.com/policy-andpolitics/2015/11/19/9760060/refugees-historyholocaust. (Last visited February 5, 2017).

In the wake of

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)”; http://archives.jdc.org/educators/topic-guides/thestory-of-the-ss-st.html (Last visited February 5, 2017).

22

Case 1:17-cv-00116-LMB-TCB Document 58-2 Filed 02/08/17 Page 27 of 28 PageID# 442 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 and on the following page:
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 Case 1:17-cv-00116-LMB-TCB Document 66 Filed 02/08/17 Page 1 of 9 PageID# 613

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

TAREQ AQEL MOHAMMED AZIZ, et al., Petitioners,
v. DONALD TRUMP, President of the United States, et al.,
Respondents.

) ) ) ) ) )
Civil Action No.: 1:17-cv-116-LMB-TCB ) ) ) ) ) )

MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE IN SUPPORT OF INTERVENOR-PETITIONER THE COMMONWEALTH OF VIRGINIA

Proposed amici curiae 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, and Network of

Arab-American Professionals (collectively, the “Proposed Amici”) respectfully request leave to

file a brief of amici curiae in support of Intervenor-Petitioner the Commonwealth of Virginia’s

(“Commonwealth” or “the Commonwealth”) Complaint for Declaratory and Injunctive Relief

(“Complaint”).

The Commonwealth’s Complaint asks this Court to declare unconstitutional Section 3(c)

of the Executive Order entitled “Protecting the Nation form Foreign Terrorist Entry into the

United States (“Executive Order”) and to preliminarily and permanently enjoin its enforcement.

Complaint at 11. The Proposed Amici have an interest in the outcome of this case, and

respectfully submit that the proposed amici brief would provide guidance to the Court in

evaluating the parties’ arguments and defenses. The proposed amici brief is attached to this

motion as Exhibit 1.

Case 1:17-cv-00116-LMB-TCB Document 66 Filed 02/08/17 Page 2 of 9 PageID# 614
The Commonwealth and the United States Department of Justice, on behalf of the Respondents, has consented to the filing of amici briefs in this matter.
IDENTITIES AND INTERESTS OF AMICI 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.
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 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.
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
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Case 1:17-cv-00116-LMB-TCB Document 66 Filed 02/08/17 Page 3 of 9 PageID# 615
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 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 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
-3-

Case 1:17-cv-00116-LMB-TCB Document 66 Filed 02/08/17 Page 4 of 9 PageID# 616
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.
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 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 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
-4-

Case 1:17-cv-00116-LMB-TCB Document 66 Filed 02/08/17 Page 5 of 9 PageID# 617
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 States; and serves society through volunteerism and community service efforts.
The Proposed Amici are affected by the Executive Order and submit that 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.
The proposed amici brief, attached to this motion, as Exhibit 1, 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.
MEMORANDUM OF POINTS AND AUTHORITIES This Court does not have specific rules governing the submission of amicus briefs. However, courts have allowed nonparties to file amicus briefs where the proposed amici have an interest in the litigation and the briefs would be desirable or helpful to the court. See, e.g., Fed. R. App. P. 29(b). The Court has broad discretion to permit a nonparty to participate in a lawsuit as amicus
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Case 1:17-cv-00116-LMB-TCB Document 66 Filed 02/08/17 Page 6 of 9 PageID# 618
curiae. See, e.g., Nat’l Ass’n of Homebuilders v. U.S. Army Corps of Eng’rs, 519 F. Supp. 2d 89, 93 (D.D.C. 2007) (finding that court would benefit from organization’s participation as amicus curiae in support of government’s position); see also, e.g., Peters v. Jenney, 327 F.3d 307, 319 n.13 (4th Cir. 2003) (noting that amicus brief was “helpful to the court”); Newark Branch, N.A.A.C.P. v. Twp. of Harrison, 940 F.2d 792, 808 (3d Cir. 1991) (amicus brief appropriate when it serves “the benefit of the court, assisting the court in cases of general public interest”); Bradley v. Sch. Bd. of City of Richmond, 317 F. Supp. 555, 576 (E.D. Va. 1970) (same). Amicus participation also ensures “a complete and plenary presentation of difficult issues so that the court may reach a proper decision.” Newark Branch, N.A.A.C.P., 940 F.2d at 808.
Courts have accepted amicus briefs from proposed amici who demonstrated an interest in the outcome of the litigation. See, e.g., Yamaha Motor Corp., U.S.A. v. Smit, 276 F. Supp. 2d 490, 492 (E.D. Va. 2003) rev’d on other grounds sub nom. (noting amicus participation of another corporation affected by the challenged statute, because amicus was in same business as plaintiff challenger and, “as such, has a direct interest in the outcome of this litigation”); Yamaha Motor Corp.; U.S.A. v. Jim’s Motorcycle, Inc., 401 F.3d 560, 563, 565 (4th Cir. 2005) (allowing same amicus to participate on appeal); see also, e.g., Neonatology Assocs., P.A. v. Comm’r of Internal Revenue, 293 F.3d 128, 130-34 (3d Cir. 2002) (Alito, J.) (granting motion to file brief by amici who asserted “‘an interest in the outcome of this case’” because outcome “‘will impact the rights of amici’”) (quoting amicus brief).
For the reasons explained above, the proposed amici have an interest in the outcome of this case and should accordingly be permitted to submit its proposed amici brief.
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Case 1:17-cv-00116-LMB-TCB Document 66 Filed 02/08/17 Page 7 of 9 PageID# 619

CONCLUSION For the foregoing reasons, the proposed amici respectfully request leave to file in this action the proposed brief of amici curiae attached as Exhibit 1.

Dated: February 8, 2017

Respectfully submitted,
ARNOLD & PORTER KAYE SCHOLER LLP
/s/ Michael Kientzle (VSB 85487) Daniel Cantor (pro hac vice to be filed) Arnold & Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC 20001 Telephone: (202) 942-5000 Facsimile: (202) 942-5999 michael.kientzle@apks.com daniel.cantor@apks.com
Attorneys for Proposed Amici Curiae
Farhana Khera Aziz Huq Brenda Abdelall Madihha Ahussain Junaid Sulahry Johnathan Smith Muslim Advocates P.O. Box 71080 Oakland, CA 94612 Telephone: (415) 692-1484 farhana@muslimadvocates.org
Anton Ware Arnold & Porter Kaye Scholer LLP Three Embarcadero Center 10th Floor San Francisco, CA 94111 Telephone: (415) 471-3100 Facsimile: (415) 471-3400 anton.ware@apks.com

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Case 1:17-cv-00116-LMB-TCB Document 66 Filed 02/08/17 Page 8 of 9 PageID# 620 Andrew D. Bergman Arnold & Porter Kaye Scholer LLP 700 Louisiana Street Suite 1600 Houston, TX 77002 Telephone: (713) 576-2430 Facsimile: (713) 576-2499 andrew.bergman@apks.com Counsel for Proposed Amici Curiae
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Case 1:17-cv-00116-LMB-TCB Document 66 Filed 02/08/17 Page 9 of 9 PageID# 621

CERTIFICATE OF SERVICE I hereby certify that, on this 8th day of February 2017, I have caused the foregoing to be filed with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to all counsel of record.

/s/

______

Michael Kientzle (VSB 85487)

Arnold & Porter Kaye Scholer LLP

601 Massachusetts Ave., NW

Washington, DC 20001

Telephone: (202) 942-5000

Facsimile: (202) 942-5999

michael.kientzle@apks.com

Attorney for Proposed Amici Curiae

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Case 1:17-cv-00116-LMB-TCB Document 66-1 Filed 02/08/17 Page 1 of 19 PageID# 622

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

TAREQ AQEL MOHAMMED AZIZ, et al., Petitioners,
v. DONALD TRUMP, President of the United States, et al.,
Respondents.

)

)

)

)

)

) )

Civil Action No.: 1:17-cv-116-LMB-TCB

)

)

)

)

)

BRIEF OF PROPOSED AMICI CURIAE 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, and NETWORK OF ARAB-AMERICAN PROFESSIONALS IN SUPPORT OF INTERVENOR-PETITONER

ARNOLD & PORTER KAYE SCHOLER LLP

/s/

.

Michael Kientzle (VSB 85487)

Daniel A. Cantor

(Pro hac vice motion to be filed)

Arnold & Porter Kaye Scholer LLP

601 Massachusetts Ave., NW

Washington, DC 20001

Telephone: (202) 942-5000

Facsimile: (202) 942-5999

michael.kientzle@apks.com

daniel.cantor@apks.com

Attorneys for Proposed Amici Curiae February 8, 2017

MUSLIM ADVOCATES
Farhana Khera Aziz Huq Brenda Abdelall Madihha Ahussain Johnathan Smith Junaid Sulahry Muslim Advocates P.O. Box 71080 Oakland, CA 94612 Telephone: (415) 692-1484
Of Counsel for Proposed Amici

Case 1:17-cv-00116-LMB-TCB Document 66-1 Filed 02/08/17 Page 2 of 19 PageID# 623
TABLE OF CONTENTS Table of Authorities ....................................................................................................................... iii INTRODUCTION ...........................................................................................................................5 INTEREST OF THE AMICI CURIAE ...........................................................................................5 ARGUMENT ...................................................................................................................................9 I. The President’s Executive Orders on Immigration Are Subject to Important
Constitutional Limitations ......................................................................................................9 A. The Executive Order Is Not Immune From Judicial Review ........................................9 B. The Court Is Not Prohibited From Reviewing The Executive Branch’s
Motives ........................................................................................................................11 II. The Purpose and Effect of the Executive Order Is Animus Toward Muslims .....................13
A. The Executive Order Is Animated By Overt Animus Toward Muslims .....................13 B. The Executive Order Disproportionately Injures Muslims, Including
Longtime U.S. Residents .............................................................................................15 CONCLUSION ..............................................................................................................................16
ii

Case 1:17-cv-00116-LMB-TCB Document 66-1 Filed 02/08/17 Page 3 of 19 PageID# 624
TABLE OF AUTHORITIES
Cases
Cardenas v. United States, 826 F.3d 1164 (9th Cir. 2016) .................................................................................................10
Chae Chan Ping v. United States, 130 U.S. 581 (1889).................................................................................................................10
Church of Lukumi Babalu v. Hialeah, 508 U.S. 520 (1993).................................................................................................................12
Equity in Athletics, Inc. v. Dep’t of Educ., 639 F.3d 91 (4th Cir. 2011) .....................................................................................................12
Fong Yue Ting v. United States, 149 U.S. 698 (1893).................................................................................................................10
Hamdan v. Rumsfeld, 548 U.S. 557 (2006).................................................................................................................12
INS v. Chadha, 462 U.S. 919 (1983)...................................................................................................................9
INS v. Pangilinan, 486 U.S. 875 (1988).................................................................................................................12
Kerry v. Din, 135 S. Ct. 2128 (2015) .......................................................................................................10, 13
Korematsu v. United States, 323 U.S. 214 (1944).................................................................................................................10
Locke v. Davey, 540 U.S. 712 (2004).................................................................................................................12
McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005).................................................................................................................11
Nguyen v. INS, 533 U.S. 53 (2001).....................................................................................................................9
Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).................................................................................................................11
United States v. O’Brien, 391 U.S. 367 (1968).................................................................................................................11
United States v. Windsor, 133 S. Ct. 2675 (2013) .............................................................................................................12
Zadvydas v. Davis, 533 U.S. 678 (2001)...................................................................................................................9
iii

Case 1:17-cv-00116-LMB-TCB Document 66-1 Filed 02/08/17 Page 4 of 19 PageID# 625 Other Authorities Donald Trump on Orlando Shooting, FACTCHECK.ORG (June 14, 2016), http://www.factcheck.org/2016/06/donald-trump-on-orlando-shooting/ ................................14 Exec. Order No. 13,769, 82 FR 8977 (2017)...............................................................................1, 8 Kambiz Ghanea Bassiri, A History of Islam in America: From the New World to the New World Order (Cambridge 2010) ................................................................................16
iv

Case 1:17-cv-00116-LMB-TCB Document 66-1 Filed 02/08/17 Page 5 of 19 PageID# 626
INTRODUCTION Plaintiffs’ Motion for Declaratory and Injunctive Relief against the implementation of Section 3(c) 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”) should be granted. The Executive Order is unconstitutional on a number of grounds, most strikingly because its evident purpose and effect is animus toward Muslims. 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. 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 urge this Court to grant the Plaintiffs’ Motion for Declaratory and Injunctive Relief.
INTEREST OF THE AMICI CURIAE This amici curiae brief is submitted on behalf of the Amici described below in support of intervenor-petitioner the Commonwealth of Virginia. 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.
5

Case 1:17-cv-00116-LMB-TCB Document 66-1 Filed 02/08/17 Page 6 of 19 PageID# 627
American Muslim Health Professionals (“AMHP”) works to improve the health of all 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 through state liaisons and 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 active medical relief programs and emergency relief efforts to respond to disasters and facilitates the transfer of medical knowledge around the world.
6

Case 1:17-cv-00116-LMB-TCB Document 66-1 Filed 02/08/17 Page 7 of 19 PageID# 628
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 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
7

Case 1:17-cv-00116-LMB-TCB Document 66-1 Filed 02/08/17 Page 8 of 19 PageID# 629
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 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.
8

Case 1:17-cv-00116-LMB-TCB Document 66-1 Filed 02/08/17 Page 9 of 19 PageID# 630

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 broadly sweeping immigration ban, the Government has repeatedly

invoked a supposed “plenary power” of the Government’s political branches to exclude

particular groups from entering the United States. See, e.g., Brief of Government at 15,

Washington v. Donald Trump, et al., No. 2:17-cv-00141-JLR (W.D. Wash. Feb. 2, 2017), ECF

No. 50 (citing Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016)). However, any

such attempt to shield the Executive Order from 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). To the contrary, 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 embodied in a number of important recent cases.

These cases involve both U.S. citizens and aliens; and both individual antidiscrimination claims

and structural constitutional limits on the government’s power. 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.

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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 reviewed 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 non-reviewability doctrine to discretionary denial of a visa). Practical concerns of administrability may support insulating the large volume of such discretionary, factspecific 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 categorically. It also 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 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.1 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
1 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.
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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 has contended in other litigation that any inquiry into “motive” would create “substantial separation of powers problems.” Brief of Government at 17, Washington v. Donald Trump, No. 17-35105 (9th Cir. Feb. 4, 2017), ECF No. 14 (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. This is equally true when the Government purports to invoke national security considerations.
Contrary to the Government’s position, in reviewing the Executive Order, courts are duty-bound to consider not only the language of the Order but also its “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 below 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 petitioners and intervenor-petitioner, the Commonwealth of Virginia, have alleged. With respect to the Establishment Clause count in the Commonwealth’s complaint, 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
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sincere one”). With respect to Equal Protection, the District Court must similarly address the Plaintiffs’ credible allegations and evidence that the Executive Order was intended to discriminate against Muslims. See Equity in Athletics, Inc. v. Dep't of Educ., 639 F.3d 91, 108 (4th Cir. 2011) (“In order to survive a motion to dismiss an equal protection claim, a plaintiff must plead sufficient facts to demonstrate plausibly that he was treated differently from others who were similarly situated and that the unequal treatment was the result of discriminatory animus.”). 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 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 or national security contexts. In previous antidiscrimination challenges to executive immigration-related action by noncitizens, the Supreme 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). In the national security context, the Court has also insisted on careful judicial scrutiny of the factual justifications for decisions that impinge on basic constitutional rights. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 623 (2006) (invalidating military commissions system established by executive order on the ground that “[n]othing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case” as required by federal statute).
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Finally, even if the plenary power doctrine were properly invoked here (and it is not), Justice Kennedy’s controlling opinion in Kerry v. Din, 135 S. Ct. 2128 (2015) 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. Such a standard is met here. As demonstrated below, the Executive Order reflects the implementation of a bad faith effort to target Muslims. These allegations are more than plausible in light of the publicly available evidence. 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. However, 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.” Kientzle Decl. Ex. A. On December 7, 2015, following the terror attack in San Bernardino, California, thencandidate Mr. Trump called for a “complete shutdown of Muslims entering the United States.” Kientzle Decl. Ex. B. Mr. Trump justified this call by claiming, without evidence, that “large
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segments of the Muslim population” favor Sharia (Islamic law) over U.S. law and violence against Americans. Kientzle Decl. Ex. C.
On December 8, 2015, Mr. Trump defended his proposed “Muslim ban,” and falsely accused Muslims of failing to report the San Bernardino plot:2 “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.” Kientzle 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. Kientzle Decl. Ex. E.
On March 9, 2016, Mr. Trump told CNN’s Anderson Cooper that “Islam hates us.” Kientzle 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.” Kientzle 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. Kientzle 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 the “Muslim ban” “legally.” Kientzle Decl. Ex. H. During
2 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.”).
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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.” Kientzle 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. Kientzle 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.” Kientzle 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.” Kientzle Decl. Ex. K.
On January 27, 2017, Mr. Trump said that Christian refugees would be given priority in the refugee program. Kientzle Decl. Ex. L. On February 3, 2017, Mr. Trump posted on Twitter “We must keep ‘evil’ out of our country.” Kientzle Decl. Ex. M.
B. The Executive Order Disproportionately Injures Muslims, Including Longtime U.S. Residents
As American Muslim professionals, Amici can attest to the stigma that has attached to all American Muslims (and those perceived as Muslim in consequence of their ethnicity), 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,
15

Case 1:17-cv-00116-LMB-TCB Document 66-1 Filed 02/08/17 Page 16 of 19 PageID# 637 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 seven majority-Muslim countries expressly included in the Executive Order — will, if not restrained, continue to harm Amici. CONCLUSION For the foregoing reasons, Amici respectfully request that the Court grant Plaintiffs’ Motion for Declaratory and Injunctive Relief.
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Respectfully submitted,

ARNOLD & PORTER KAYE SCHOLER LLP

/s/

.

Michael Kientzle (VSB 85487)

Daniel A. Cantor (pro hac vice to be filed)

Arnold & Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC 20001 Telephone: (202) 942 5000 Facsimile: (202) 942-5999 michael.kientzle@apks.com daniel.cantor@apks.com

Attorneys for Proposed Amici Curiae

Farhana Khera Aziz Huq Brenda Abdelall Madihha Ahussain Johnathan Smith Junaid Sulahry
Muslim Advocates P.O. Box 71080 Oakland, CA 94612 (415) 692-1484
Bethan R. Jones
Arnold & Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942 5000

Anton Ware
Arnold & Porter Kaye Scholer LLP Three Embarcadero Center 10th Floor San Francisco, CA 94111 (415) 471 3100

(continued) 17

Case 1:17-cv-00116-LMB-TCB Document 66-1 Filed 02/08/17 Page 18 of 19 PageID# 639

Date: February 8, 2017

Andrew D. Bergman Arnold & Porter Kaye Scholer LLP 700 Louisiana Street Suite 1600 Houston, TX 77002 (713) 576 2430
Of Counsel for Proposed Amici Curiae

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Case 1:17-cv-00116-LMB-TCB Document 66-1 Filed 02/08/17 Page 19 of 19 PageID# 640

CERTIFICATE OF SERVICE

I hereby certify that on the February 8, 2017, I electronically filed the foregoing with the

Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to

all counsel of record.

ARNOLD & PORTER KAYE SCHOLER LLP

/s/

.

Michael Kientzle (VSB 84587)

ARNOLD & PORTER KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

Telephone: (202) 942-5000

Facsimile: (202) 942-5999

michael.kientzle@apks.com

Attorney for Proposed Amici Curiae

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Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 1 of 111 PageID# 641

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., Petitioners,
v. DONALD TRUMP, President of the United States, et al.,
Respondents.

)

)

)

)

)

) )

Civil Action No.: 1:17-cv-116-LMB-TCB

)

)

)

)

)

DECLARATION OF MICHAEL KIENTZLE 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 PROPOSED AMICI CURIAE, IN SUPPORT OF INTERVENOR-PETITIONER

I, Michael Kientzle, hereby declare as follows: 1. I am over the age of eighteen and competent to testify. 2. I am an associate attorney 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 Petitioners.

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 2 of 111 PageID# 642
3. Attached hereto as Kientzle 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.” 4. Attached hereto as Kientzle 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 Kientzle 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 Kientzle 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 Kientzle 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 Kientzle 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 Kientzle 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.
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Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 3 of 111 PageID# 643
10. Attached hereto as Kientzle 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.” 11. Attached hereto as Kientzle 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 Kientzle 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 Kientzle 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 Kientzle 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 Kientzle 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 8th day of February 2017.
______/s/_________________ MICHAEL KIENTZLE
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Ware Declaration Exhibit A

2/6/2017Case 1:17-cv-00116-LMB-TCBTrumDp:o'Acbusomluteelny nto6c6ho-ic2e' buFt tiolecldose0m2o/0sq8ue/s1­7POLPITaICgOe 5 of 111 PageID# 645


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

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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

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http://www.politico.com/story/2015/11/trump­close­mosques­216008

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Ware Declaration Exhibit B

2/6/2017 Case 1:17-cv-00116-DLoMnalBd J-.TTrCumBp StDateomcenutmonePrnevte6nt6ing-2MusFlimileImdmi0gr2at/i0on8| /D1o7nald PJ Tarugmep f9or oPrfes1id1en1t PageID# 649

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­ 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.

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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

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Ware Declaration Exhibit C

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 12 of 111 PageID# 652

(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/)

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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/)

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 13 of 111 PageID# 653 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-

thoCusaasned1s:-1su7p-cpvo-0rt0-s1h1a6r-iaLhM-jBih-aTdC/)Bof D60oc0uMmuesnlitm6s6-li2vinFgiliendth0e2/U0n8i/t1e7d SPtaatgees.1It4s otafk1e1a1wPaay,gceaIDpt#ur6e5d4 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.

SinCceasthee1e:1a7rl-yc2v-000001s1,6C-LSMP Bh-aTsCgBeneDraotceudmdeonzte6n6s-2of oFcilceadsi0o2n/a0l8p/1a7perPs,abgleog1s5, oanf d11r1epPoargtsetIhDa#t 655 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

AnoCthaeser p1r:o1b7l-ecmv-0w0it1h1t6h-iLsMpBol-lTisCtBhe Dwoacyutmhaetnqtu6e6s-t2ionFsilaendd0a2n/0sw8/e1r7s aPreagpehr1a6seodf.1O1f1tePna, tgheeIDy #ar6e56 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

(httCpsa:s//etw1it:t1e7r.-ccovm-0/0P1ro1g6-sLToMdBa-yT/sCtBatusD/6o1c3u7m8e2n0t66663-5247F6i5le8d2042),/a0n8d/1b7leePdaigneg 1in7toofm1o1r1e PmaaginesIDtre#a6m57 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.
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Ware Declaration Exhibit D

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

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

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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

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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

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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

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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."

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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."

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Ware Declaration Exhibit E

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Republican Candidates Debate in North Charleston, South Carolina January 14, 2016

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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;

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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.

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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]

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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.

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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.

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But the good news is the next commander­in­chief is standing on this stage. [applause] And I give you my word, if I am

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elected president, no service man or service woman will be forced to be on their knees, and any nation that captures our

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fighting men will feel the full force and fury of the United States of America. [applause]

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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

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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

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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

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$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

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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

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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 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.

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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

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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...

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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 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]

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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 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?

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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]

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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?

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.

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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.

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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.

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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 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.

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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 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

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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.

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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.

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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.

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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.

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[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].
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.

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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?

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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.

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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

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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.

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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 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.

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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.

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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?

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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.

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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

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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 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.

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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

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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.
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?

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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.

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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.

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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

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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?

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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?

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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,

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2/6/2017Case 1:17-cv-00116-LMB-TCB Document C6N6N-.2com F­ Tilreandsc0rip2ts/08/17 Page 64 of 111 PageID# 704 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

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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)

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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

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ahead.

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?"
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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.

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COOPER: It's a great interview.

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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

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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

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COOPER: Does that mean cutting off heads?

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

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COOPER: On a ­­ yeah.

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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

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COOPER: You can't go on the internet and buy them. 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,

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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

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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

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politics which you can interpret in a multitude of different ways?
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.

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Ware Declaration Exhibit G

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

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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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Ware Declaration Exhibit H

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 90 of 111 PageID# 730
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.)
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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.

DespiteCGaiusliean1i’s:1c7la-imcvt-h0a0t 1th1e6o-rLdMer Bha-sTnCoB“relDigioocusubmaseisn,”t t6h6at-2isn’tFqiuleitde t0ru2e/0co8n/1si7deriPngatgheat9Tr1umofp’1s 1m1eaPsuargeespIDec#iﬁc7a3ll1y 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.

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 92 of 111 PageID# 732

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

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This is just the beginning. Help us hold President Trump accountable.

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 93 of 111 PageID# 733
Ware Declaration Exhibit I

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 94 of 111 PageID# 734

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 95 of 111 PageID# 735

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 96 of 111 PageID# 736

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 97 of 111 PageID# 737

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 98 of 111 PageID# 738
Ware Declaration Exhibit J

2/6/2017Case 1:17-cv-M0ic0h1ae1l F6ly-nLnMinBAu-gTusCt: IBslamDismocau'vimcioeusnctan6c6er-'2in boFdyiloef adll M02us/l0im8s/t1ha7t 'hasPtoabgeeexc9is9edo' ­fC1N1N1PoPlitiacsg.ceomID# 739
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

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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:

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

Service.

http://www.cnn.com/2016/11/22/politics/kfile­michael­flynn­august­speech/

2/4

2/6/201C7 ase 1:17-cv-0M0ich1a1el6F-lyLnMn inBA-uTguCst:BIslamDisomcau'vmicieounstca6n6ce-r2' in bFodiyleofdall0M2u/s0lim8s/1th7at 'haPs atogbeeex1c0ise1d'o­ fCN1N1P1oliPticas.gcoemID# 741
"Field of Fight" with Ret. Lt. Gen. Michael T. Flynn

 Rapper falls on stage with Drake

Donald Trump's most bone-chilling tweet

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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/

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2/6/201C7 ase 1:17-cv-0M0ich1a1el6F-lyLnMn inBA-uTguCst:BIslamDisomcau'vmicieounstca6n6ce-r2' in bFodiyleofdall0M2u/s0lim8s/1th7at 'haPs atogbeeex1c0ise2d'o­ fCN1N1P1oliPticas.gcoemID# 742

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Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 103 of 111 PageID# 743
Ware Declaration Exhibit K

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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."

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 105 of 111 PageID# 745
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.

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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.

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 106 of 111 PageID# 746 Aaron Blake is senior political reporter for The Fix.  Follow @aaronblake

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Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 108 of 111 PageID# 748
Ware Declaration Exhibit L

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 109 of 111 PageID# 749

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 110 of 111 PageID# 750
Ware Declaration Exhibit M

Case 1:17-cv-00116-LMB-TCB Document 66-2 Filed 02/08/17 Page 111 of 111 PageID# 751

Case 1:17-cv-00116-LMB-TCB Document 66-3 Filed 02/08/17 Page 1 of 3 PageID# 752

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

)

TAREQ AQEL MOHAMMED AZIZ, et al., )

)

Petitioners,

)

)

v.

)

Civil Action No.: 1:17-cv-116-LMB-TCB

)

DONALD TRUMP, President of the United )

States, et al.,

)

)

Respondents.

)

)

NOTICE OF HEARING

PLEASE TAKE NOTICE that, on Friday February 10, 2017 at 10:00 AM, proposed

amici curiae 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, and Network of Arab-

American Professionals will bring for hearing before the Honorable Leonie M. Brinkema their

Motion For Leave to File a Brief of Amici Curiae in support of the Intervenor.

Dated: February 8, 2017

Respectfully Submitted,

__________/s/______________________________ Michael Kientzle (VSB 85487) Daniel Cantor (pro hac vice to be filed) Arnold & Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC 20001 Telephone: (202) 942-5000 Facsimile: (202) 942-5999 michael.kientzle@apks.com daniel.cantor@apks.com

Attorneys for Proposed Amici Curiae

Case 1:17-cv-00116-LMB-TCB Document 66-3 Filed 02/08/17 Page 2 of 3 PageID# 753
Farhana Khera Aziz Huq Brenda Abdelall Madihha Ahussain Junaid Sulahry Johnathan Smith Muslim Advocates P.O. Box 71080 Oakland, CA 94612 Telephone: (415) 692-1484 farhana@muslimadvocates.org Anton Ware Arnold & Porter Kaye Scholer LLP Three Embarcadero Center 10th Floor San Francisco, CA 94111 Telephone: (415) 471-3100 Facsimile: (415) 471-3400 anton.ware@apks.com Andrew D. Bergman Arnold & Porter Kaye Scholer LLP 700 Louisiana Street Suite 1600 Houston, TX 77002 Telephone: (713) 576-2430 Facsimile: (713) 576-2499 andrew.bergman@apks.com Counsel for Proposed Amici Curiae
-2-

Case 1:17-cv-00116-LMB-TCB Document 66-3 Filed 02/08/17 Page 3 of 3 PageID# 754
CERTIFICATE OF SERVICE I hereby certify that, on this 8th day of February 2017, I have caused the foregoing to be filed with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to the counsel of record for Intervenors and Respondents.
By: _____/s/_____________________________ Michael Kientzle (VSB 85487) Arnold & Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC 20001 Telephone: (202) 942-5000 Facsimile: (202) 942-5999 michael.kientzle@apks.com Attorney for Proposed Amici Curiae
-3-

Case 1:17-cv-00116-LMB-TCB Document 66-4 Filed 02/08/17 Page 1 of 3 PageID# 755

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., Petitioners,
v. DONALD TRUMP, President of the United States, et al.,
Respondents.

)

)

)

)

)

) )

Civil Action No.: 1:17-cv-116-LMB-TCB

)

)

)

)

)

FINANCIAL INTEREST DISCLOSURE STATEMENT

Pursuant to Local Rule 7.1 of the Eastern District of Virginia and to enable Judges and Magistrate Judges to evaluate possible disqualification or recusal, the undersigned counsel for 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, and Network of Arab-American Professionals (collectively, “Amici”) in the above captioned action, certifies that there are no parents, trusts, subsidiaries and/or affiliates of Amici that have issued shares or debt securities to the public.
(signatures on following page)

Case 1:17-cv-00116-LMB-TCB Document 66-4 Filed 02/08/17 Page 2 of 3 PageID# 756

/s/

.

Michael Kientzle (VSB 85487)

Daniel Cantor (pro hac vice to be filed)

ARNOLD & PORTER KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

Telephone: (202) 942-5000

Facsimile: (202) 942-5999

michael.kientzle@apks.com

daniel.cantor@apks.com

Attorneys for Proposed Amici Curiae

February 8, 2017

Case 1:17-cv-00116-LMB-TCB Document 66-4 Filed 02/08/17 Page 3 of 3 PageID# 757

CERTIFICATE OF SERVICE

I hereby certify that on the February 8, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to all counsel of record.

ARNOLD & PORTER KAYE SCHOLER LLP

/s/

.

Michael Kientzle (VSB 84587)

ARNOLD & PORTER KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

Telephone: (202) 942-5000

Facsimile: (202) 942-5999

michael.kientzle@apks.com

Attorney for Proposed Amici Curiae

 
 Case 1:17-cv-00116-LMB-TCB Document 54 Filed 02/08/17 Page 1 of 6 PageID# 356

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)

Petitioners,

)

)

THE COMMONWEALTH OF VIRGINIA, )

)

Intervenor-Petitioner,

)

)

v.

)

)

DONALD TRUMP, President of the United )

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

DECLARATION OF NAJWA ELYAZGI

I, Najwa Elyagi, declare that the following facts are true to the best of my knowledge, information and belief:
1. I am a twenty-three-year-old student at George Mason University in Fairfax, Virginia. I have been a student at GMU since 2014, and I am now in my senior year pursuing a
gree in international relations, with minors in leadership and conflict resolution. I have devoted myself with passion to my studies and currently have a 3.98 grade point average (GPA). I am active in organizations that relate to my interest in international relations and politics, and I want my career to involve helping countries get along better.
2. I am a citizen of Libya. While there is political instability in Libya, the vast majority of Libyans yearn for peace and democracy. They consider the United States their friend and are allies in the fight against terrorism. I have family who live in the United States,

1

Case 1:17-cv-00116-LMB-TCB Document 54 Filed 02/08/17 Page 2 of 6 PageID# 357

including a brother who is a green-card holder and is doing his medical residency, and an aunt

and uncle and cousins who are U.S. citizens.

3. In 2011, I had the highest GPA for my high-school year in Libya, and I was

awarded a full scholarship by the Libyan government to study at any university in the world that

granted me admission. I chose to apply to schools in the United States because I believed it was

a country that would accept my culture, and I located near Washington, D.C. because of my

interest in international relations and politics. Studying in the U.S. has been a cross-cultural and

educational opportunity that is rarely available to Libyan women.

4. As a citizen of Libya, I can travel to the United States only on a Libyan passport.

Visa applications from Libyans are heavily scrutinized and visas are difficult to get. I have an F-

1 student visa, which required about a year to obtain in the first place. Whenever I leave the

United States and wish to reenter, I need to obtain an updated F-1 visa. Without a U.S. embassy

in the Libyan capital, Tripoli, Libyan citizens like me must travel outside the country to obtain a

U.S. visa. Before this year, I had entered and left the United States seven times since 2014

without any problems.

5.

I traveled home to

Libya to visit family. I departed the United States from Dulles International Airport on

December 27, 2016. I originally planned to return to the United States on January 22, 2017, but

the issuance of my updated F-1 visa by the U.S. consulate in London, England was delayed.

6. On January 27, having obtained an updated F-1 visa in London, I began my

planned trip back to the United States. My travel itinerary from London to Dulles on Turkish

Airlines included a 10-hour layover in Istanbul

Airport. I arrived in Istanbul at 5 a.m.

local time on January 28. My excitement about returning to school turned to high anxiety when I

2

Case 1:17-cv-00116-LMB-TCB Document 54 Filed 02/08/17 Page 3 of 6 PageID# 358
got off the plane and learned on social media and at airport television monitors of President issued while I was in the air. I
learned that the Executive Order prohibits persons travelling on passports from seven countries, including Libya, from entering or re-entering the United States.
7. I went to the boarding gate for my scheduled outbound flight to Dulles and asked the security officials assigned to that gate if I would be affected by the Executive Order, and they said no. They explained that they did not yet have official instructions from the U.S. Customs and Border Protection to implement the Executive Order. I felt deep relief when I was provided a boarding pass by airline personnel.
8. At 2 p.m., when I arrived to wait in line to board my scheduled flight, my relief turned to anxiety again when one of the same security officials approached me and said that he had received updated information about the Executive Order and that I would not be allowed to board the plane to Dulles. He pulled me out of line and the flight departed without me. I waited at the airport until 7 p.m. for my checked luggage to be returned to me, and then I left the airport in search of a hotel.
9. I found a hotel near the airport and ended up staying there for more than 6 days, alone and worried about what was going to happen. It was a nightmare. I checked the news frequently, and spoke often with my family and with contacts in the United States, including GMU, trying to figure out how I was going to get back. My classes at GMU had resumed, and I worried about my absence from them. I was also worried about the money I was spending while stranded. My family had to arrange for money to be sent to cover my unexpected lodging and travel expenses. Without knowing if I would ever be allowed to return to the United States, I
3

Case 1:17-cv-00116-LMB-TCB Document 54 Filed 02/08/17 Page 4 of 6 PageID# 359
began looking at other universities outside the United States. I even applied to and was accepted by one, given my high grades and the emergency circumstances.
10. Late in the week, I learned that Lufthansa was recognizing an order by a federal court in Massachusetts that stopped the U.S. government and authorities from implementing the Executive Order against persons like me who had valid visas to study in the U.S. but happened to be abroad when the Executive Order was issued. The few tickets on Lufthansa flights to Boston were quickly snatched up, and although I would have paid a very high price just to get back, I was unable to purchase one.
11. Early on February 4, I learned that a federal court in Washington State had temporarily stopped enforcement of the Executive Order. Hoping it was true that the ban was lifted, I went to the airport and was so happy when security officials verified that for me. I quickly bought a ticket to Dulles on a Turkish Airlines flight that departed that morning the same itinerary I had booked for a week earlier and I was cleared to fly.
12. I arrived at Dulles the evening of February 4 and was very prepared for extra security to re-enter the United States. I was surprised to be allowed in very quickly. Instead of the hour or more I expected to wait, the process took only a few minutes. When I left the secure area, I was so happy to be greeted by my family and others who celebrated my arrival back.
13. I am now back in classes at GMU and I have been catching up on schoolwork since I returned. I am still frustrated by the ordeal that I experienced. The Executive Order was released hastily and became immediately effective without any advance warning to travelers like me. The lack of notice was grossly unfair to students like me who have respected the laws of the United States and made travel plans in reliance on our ability to come and go. My experience made me understand better how refugees must feel when their world is turned upside down.
4

Case 1:17-cv-00116-LMB-TCB Document 54 Filed 02/08/17 Page 5 of 6 PageID# 360

14. I also wonder why the U.S. government did not do more to help. The Department

of Homeland Security and the State Department were tasked by the Executive Order to develop

any exceptions to the ban, but they appeared uninterested in making these exceptions. The U.S.

Consulate in Istanbul told me it did not have jurisdiction to review my request for an exception

to the Executive Order. I wondered whether the people who drafted the Executive Order really

meant to keep me out of America and deprive me of an invaluable opportunity to complete my

education at GMU.

15. Because of the Executive Order, I estimate that I incurred extra costs of about

$4,000 in food, lodging, and travel and flight-change fees. Luckily, my family was able to

scramble and get the money to me, but I know others are not as fortunate.

16. Because of the Executive Order, I missed a week of classes, and I hope that I

never have to miss any more. I worry that if the Executive Order is extended, and I am

prevented from re-entering the United States if I have to leave, then my education plans will be

severely disrupted, and I will have lost the significant time and money that I have invested in my

education in the last three years.

17. Because of the Executive Order, I am reconsidering my plans to pursue a further

degree in the United States.

degree would take about three years, and I could not risk

the possibility of not being able to visit my parents during that time. Although I love the people

of the United States, I am now considering applying to graduate programs in Canada instead.

Pursuant to 28 U.S.C. § 1746, I, Najwa Elyazgi, declare under the penalty of perjury that the foregoing is true and correct.

Executed on February 7, 2017.

____________________________________ NAJWA ELYAZGI
5

Case 1:17-cv-00116-LMB-TCB Document 54 Filed 02/08/17 Page 6 of 6 PageID# 361 CERTIFICATE OF SERVICE
I hereby certify that on February 8, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael
1

 
 Case 1:17-cv-00116-LMB-TCB Document 55 Filed 02/08/17 Page 1 of 7 PageID# 362

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al.,

)

)

Petitioners,

)

)

THE COMMONWEALTH OF VIRGINIA,

)

)

Intervenor-Petitioner,

)

)

v.

)

)

DONALD TRUMP, President of the United

)

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

DECLARATION OF TAREQ AQEL MOHAMED AZIZ

1

Case 1:17-cv-00116-LMB-TCB Document 55 Filed 02/08/17 Page 2 of 7 PageID# 363
Declaration of Tareg Agel Mohamed Aziz I, Tareq Aqel Mohamed Aziz, do hereby declare and depose as follows: 1. I am over 18 years of age and have personal knowledge of the facts I state below, and ifl were to be called as a witness, I could competently testify about what I have written in this declaration. 2. I am a citizen and national of Yemen. My childhood in Yemen before the civil war was comfortable, thanks in large part to the support afforded by my father Aqel Aziz who was living in the United States. I was learning English by watching American TV shows, listening to American music, and taking English lessons with my brother Ammar Aziz at an American non-profit educational organization. To further my education, I planned on attending the British University in Yemen. 3. However, all this came to an end when the civil war began. Every night the bombs would fall , and many times they were so close that my brother and I could not sleep. My neighbors began to starve around me, electricity became scarce, and everyday necessities became prohibitively expensive. One day after an unusually big explosion, I saw something that I never thought I would see. I was at the main square in Sana'a after the bomb was dropped. It was like a scene from a movie with people crying, people without limbs, and disfigured corpses beyond recognition. 4. Life in Yemen came to a standstill- people were afraid to go outside. Many foreign organizations closed including the British University where I planned on attending college and the non-profit where I was taking English lessons. My life in Yemen lacked opportunity and security in the most extreme sense.

Case 1:17-cv-00116-LMB-TCB Document 55 Filed 02/08/17 Page 3 of 7 PageID# 364
5. After my father obtained his U.S. citizenship in April2015, we began the visa application process for my younger brother Ammar and I to be able to join him in America. He filed paperwork with the help of an immigration attorney in Michigan.
6. Due to the civil war, there was no longer a functioning U.S. Embassy in Sana ' a. So my father requested that my brother and I be scheduled an interview with the U.S. Embassy in Algeria. But Algeria would not issue a visa to me and my brother. Accordingly, I had no choice but to accept an interview in Djibouti.
7. In October 2016, we were told that we could have an interview with the U.S. Embassy in Djibouti. However, there was no longer a functioning airport in Sana'a. My brother and I had to travel through areas under control ofdifferent warring factions to get to Aden where there was still a functioning airport. After waiting for space on a flight, we were finally able to get to Djibouti via Jordan and Qatar. This was an extremely expensive flight.
8. Due to our protracted journey, we missed our first scheduled interview with the U.S. Embassy in Djibouti, which was set for November 27, 2016. So we had to wait about four weeks for another interview, which was fmally held on January 4, 2017. Our immigrant visas (category IR2) were approved that same day. My immigrant visa came quickly, but my brother's visa took longer to arrive.
9. Finally, on or about January 26, 2017, my brother received his immigrant visa and we prepared to join our father in Michigan.
10. My brother and I were ecstatic that we would be joining our father in Michigan, and we boarded the ftrst available flight departing Djibouti on January 27. We flew Ethiopian Airlines to Addis Ababa, and then got on our flight to Washington-Dulles International Airport.
2

Case 1:17-cv-00116-LMB-TCB Document 55 Filed 02/08/17 Page 4 of 7 PageID# 365
Our plane took off at the equivalent of 2:50pm Washington, D.C. time on Friday, January 27. The plane stopped in Dublin, Ireland, but we did not have to get off of the plane.
11. While on the flight, we had no idea- nor any means of knowing- that about two hours after our flight took off, President Donald Trump had signed an Executive Order barring our entry into the United States; nor that a State Department official had signed a separate order purporting to provisionally revoke our valid immigrant visas.
12. At about 8:00am on Saturday, January 28, we landed at Dulles Airport excited and thinking that we were still on our way to join our father. However, as we got off the plane, a man was saying, "all Ycmenis come this way." A uniformed officer fingerprinted us and then took us back to a special office where he took our immigrant visa packets and our passports. They then called my brother Ammar to come to another office. My brother asked for a translator, since his English is not very good, but they told me that I had to come and translate for my brother.
13. We were then told that our visas had been cancelled and we were going back to our country. We asked if we could call our father and he told us, "give us his name and phone number and we will call him." But this was a lie, no-one ever called my father.
14. Then they told me to tell my brother to sign a form. I asked to call our lawyer (the lawyer in Michigan who helped prepare our immigration paperwork), and the officer said, "You can' t, it's a presidential order." He then told me, "You sign this paper, you will go back to your country, your government will talk to our government, and then maybe you will be able to come back later. If you don't sign this form, we force you to go back, and you will not be able to come back for five years." We tried to read the form but we couldn't understand all the words in it, so we asked the officer to explain it. The other officer responded, "Just sign it, it's good for
3

Case 1:17-cv-00116-LMB-TCB Document 55 Filed 02/08/17 Page 5 of 7 PageID# 366
you, it's the good option you have right now." So we signed the form, without having the opportunity to read it carefully or understand what it meant. We were then fingerprinted again, and the officers took pictures of us.
15. I could see that my visa, and my brother's visa, had been stamped multiple times with a stamp reading "CANCELLED-WAS, APPLICATION WITHDRAWN" in giant letters over top of the visas. But the officers did not give us back our passports. Instead, they gave our passports to airline personnel from Ethiopian Airlines.
16. The officer told us that once the situation was resolved between Yemen and the United States, we could reapply for visas. I understood this to mean that we would have to start the entire process all over again.
17. After this had been done, we were escorted by police in full view of every other passenger and put on a plane to Ethiopia - the same airplane that we had just come off.
18. I saw that about 8 other people from the same flight were also put back on the same airplane with us.
19. After landing in Ethiopia, my brother and I called our father for the ftrst time in 36 hours. He told us that he had been extremely worried for us, because no-one had called him to tell him what had happened to us. We then spent three more nights in the airport in Addis Ababa, because Ethiopian Airlines personnel would not give us our passports back - they were holding them hostage to try to get us to pay for the return flight.
20. At some point during this time, an official from the U.S. Embassy in Addis Ababa called me on the phone (by means of Ethiopian Airlines) and asked me for various personally identifying information. The next day he called back and told me that I had to go back to Djibouti and apply for another visa, and I should listen to the people from Ethiopian Airlines
4

Case 1:17-cv-00116-LMB-TCB Document 55 Filed 02/08/17 Page 6 of 7 PageID# 367
who were trying to get me to board a flight to Djibouti. I asked if I could wait one more day before leaving Addis Ababa, because my lawyer had told me that he was working on a settlement with the U.S. government. But the U.S. Embassy official said, no, you have to go to Djibouti. Also, an Ethiopian Airlines official told us we had to go to Djibouti or we would be arrested. So we complied. We only got our passports back when we arrived in Djibouti.
I declare under penalty of perjury of the laws of the United States that the foregoing is true.
/J 7 z}J Date: ~I
5

Case 1:17-cv-00116-LMB-TCB Document 55 Filed 02/08/17 Page 7 of 7 PageID# 368 CERTIFICATE OF SERVICE
I hereby certify that on February 8, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael
1

 
 Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 1 of 25 PageID# 369

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al.,

)

)

Petitioners,

)

)

THE COMMONWEALTH OF VIRGINIA,

)

)

Intervenor-Petitioner,

)

)

v.

)

)

DONALD TRUMP, President of the United

)

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

DECLARATION OF ROY HODGE, ESQ.

1

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 2 of 25 PageID# 370

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 3 of 25 PageID# 371

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 4 of 25 PageID# 372
Exhibit A

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 5 of 25 PageID# 373

fl
tt~

l -~
l

I

II :..,·;. . '
! 1:·-

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 6 of 25 PageID# 374
Exhibit B

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 7 of 25 PageID# 375

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 8 of 25 PageID# 376
Exhibit C

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 9 of 25 PageID# 377

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 10 of 25 PageID# 378
Exhibit D

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 11 of 25 PageID# 379

11111111m 111111111

ROYHODGB ROYHOOOBATI'ORNEY ATLAWPLC
8057 MILLER RD
SWARTZ CREEK, MI 48473
,• •l U I - H I Intmview Letter (P4)

Scptmnber 28, 2016
Dear ROY HODGE,
- - . o t e d The National Vua Center (NVC) completed the domestic J'l'Oill'OCCSSing oftho immigrant vi.ea petition by AZIZ, AQHL MOHAMMBD on bebelfofTAIWQ AQEL MOHAMED A2JZ. ~now futward Che petition to the U.S. Embassyor Consulate in DJlBOUTI, DJIBOUTI for
a via intmviaw: Thii lcUer ICI'Vea u fuana1 notificatioo oftbevisa iulaview. Mn1his 1cuer md
preseut it to tho U.S. Embassyor Conaulate guanl/reccptiooist at tbe time ofthe i:merview.

Interview Date and TbDe
An immipnt visa interview is IChcdulecl forTARBQ AQEL MOHAMBD AZJZ and any eliJl"blc dcrivatiw applicams (see applicants eligible to ldiCDd the interview bcl<nv} at the U.S. Bmbaay or Cansulatc in DJIBOUTI, DJIBOUTI on November 27, 281fi at 17:31 aa

Appllcanfl El&fble to Attead the llltenrlew NAIIIE
A2JZ, TAREQ AQBL .MOHAMED

Place of.Birth ··
YEMEN

Family RnDHialtion Parole (FRP) Program lateniewl
your Jfyourviaa symbol iB CPl or HPl, petition is processingundertbeFamilyR.euoitication Parole
(PRP) Program. Ifyou ereproceasins as part ofthis program, yru may need wJUPPly additicoa1 documents c1uriJ1a your inlerView. Go to die Required Visa Interview Doc:umeJiil aDd Document Status
CodeDefinitiOllll section of Ibis letter and.:

VIew eode V for CUba.

View ClOde Q for HaitL

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 12 of 25 PageID# 380

IR2- ClDLD OF U.S. CITIZEN

U.S. Emba1sy or Couulate Addres1 I.Dd Coataet Wonaation
To obtain the u.s. Embassy or Coasulale in DJIBOUTI'$ address and~ information, vim
asembasay.gov and select DJIBOUTI: DJIBOUTI from the Hat ofwcb•ites. 1bU.S. Embassy or Ccmau1ate in DJIBOUITs webaitc will iuclude its street address and contact infonnaticm.

How to Prepare for the VIsa Interview
Upon receiving this letter, all eligible applicants must prepare for a visa interviewby visiting our website avc.state.gevlflltervlew and complete the folloWing silt ateps before the interview date:
I. Cuefu11y review tbia emire 1pp0iutment letter 2. Review the U.S. Bmbas&y or Comulatc interview inBtrw:tious 3. Schedule and complete a mcc1ical examinatioo 4. Gather all remaiDing required documents S. Review important interview preparation notices 6. Review additional information on the U.S. Embas&y or Consulate's website

***IMPORTANT*** Intenfew Rmdaden

• AppUeaau may need to brlllg ulldditicmal pollee certmeate to the IDten>lew. Ifthe fullowius

tbree items are aU true, tbe applicantneeds 1D tring an updated police certificate 1D 1be in11C:tVicw:

• He or she is more1ban 16 years old;

·

• He or she obtained a police certificate more tban one year ago; and

• He or lhe still lives intbt country that isll1od the police certificate.

• Brillg thla interview letter to tbe medial eum. Bring thia letter to the medical OlWIUnati.on because the piiiiCl physician may need to review it before pe:rfonniDg the examination.

• BrlDg apdllted Federal bwome tu fDformadOD to the IDtenlew.lfa spo111orfiled an l-864 (Affidavit ofSupport) and provided the NYC with proof ofan IRS Fedenl income~ extension in lie11 of a Federal income tax return, bring tbe spomots JDDBt recent Federal income tax retum to the
visa interview.

• Petitionen arc not required to attad the applicant'aIDlmigraDt ~ IJI.tenllew, Facility size and/or security c:oncerns may limit who may aa;ompany a visa applk:ant duringhil or her visit1othe U.S. Embassy or Consulate. Pleuc visit the U.S. BmbeaBY or Consulate's webpage for IIIQI'e
information at UMDJbasay.pv.

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 13 of 25 PageID# 381

IR2- CHILD OF U.S. CI11ZBN

WJaat to do If the App)ieant Cllllllot Go to the Interview
ToJeSChedulc an interview, visit our websito ~m:.atJlt&.toV and review tbe specific Jntemcw- Guidelines for the U.S. Embassy or Cooav'hrte in DJIBOtm. Ifthe anba.uy or consuJat.e does uot have any specific rescheduliDg guidelines listed, contact the embassy or COIIIUliiZ directly (see U.S. Embassyor CODSOlate Address and Con111ct Jnfonnation above) ID reschedule the applicant'~ iDt«Yiow.

Required Vlaa IJd:c:niewDoeume.Jdlaud DoCWDeot Statu Code DeflaitioD1

While the appW:.ttt was JKOCC'sins atthe National Vie&Center, we alked him orher to submit cortain
fmms 8Dd doc:umems. On the following paps. we indicate the 111atus ofeach ofthese forms aDd
documents and any actioll the applicant needs to tab to prepare them for the intenriew. Pleuc refer to the cbmmcllt status code definition& below to dlslmmine wbat action to tab for cadi. item.

Documegt Statui Coc!e Deftnjtjnn•;

2

The NVC did not receive1bia documcm. Go to JWe.stafe.g~W/do&:UJDe.Dtl for a list ofrequired

doeumeols. Y~must preseot the original cJocume:m at the lime ofyour interview. A Obta.in this do~ and praem it at yow- interview ·

C You must bring this entire interview Jetter to your interview

D

TbeNVC sent this :formordocmnent to the u.s. Embu8y orCobsulate

F

The NYC di4 oot request this form or doeummlt

G You withdrew your I-601A. Application for Provisional Unlawtul Preaem:e Waiver, with USCIS

H You must obtaiu two p88$port photogtapbs ofyoursClf and preseot 1hem at your interview

I

This fotm is iDcomplea:. You muat present a completed farm.tyour intelview.

1 The NVC only received a photocopy ofthe documcm. Youmust presentthe origiual docWIHlllt

at the time ofyuur.imerview.

0 The NVC scmt1hia fonn or docUDlllmt to 1heU.S. Embassy or Coaaulato

P You must xequest1his police certificate from tho is&uiDgauthority. Mer you submit your

request, the issuing autbority will SOlid the cedificate direc:ttyto the U.S. Embassy or Cousulat;e

for your interview.

Q View this website:

www.uscis.gov/about-UBifilld-tiSCik)fficai'IDfCIIUIIioDal-ofliceslbaili.prt~ffico-field..oftice

R. You submitted 1he lmmignurt Visa Application ODline

S The NVC only teceived a 8CIIIIIlCd doc11ment You must preBCDt the origbWdocument at the time

of your interview.

T Yon must prcsiD!tanEnaJishtranslation of this doc:ument at 1hetime ofyoar imcrview.

U You indicahxi this documlmtwas unavailable. The consular officerwm decide wbetber to"waive

the requirement for tbis docUilleDt at your interview.

V View the website at bavua.uiDt.gov/d'rp.html for Eoglisb or

spalliab.uvaaa.ltlfDt.aov/~btml for Spanish aDd fullow the inatructioDS.

X 'Ibis documeo1 is UllObtainablc.

Y The NVC sent'this form or documellt to the U.S. Bmblssy or Consulate.

$ Paymeut reoeived.

+

The NVC murnod this document to.you per your request. ~this document at your

inm-view.

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 14 of 25 PageID# 382 . ~ ,,.

TAREQ AQEL MOHAMED AZIZ'11 Required Visa Interview Documents

NVC Case Number: . - - ApplicentName: ~OHAMBD AZJZ

Visa Symbol:

IR2 CHU..D OF U.S. CITIZEN

InvoiceD.

Beneficiary ID:

You must bring the following items to the vita mtemew:
• Any original documlmta the NVC tequc~ted that youdid DOt aubmit (rcfcc to the docmnell1list below) • If1he physician giws you your medical exam results, bring them to your interview in the envelope sealed
by the medical office. • Two passportphotographs measuriag 2 incbr:s by 2 iDcllca (5 emby S em) with a wbitc baA;kgrouAd
• A valid UDe.Xpired pasaport
• Photocopies ofan civil docnrrwtta
• A new police certificate ftom your current country ofresidence, ifyou obtaiDed the police certUicatc JDOJC tban ODe year ago.
• Any ldditional c!ocummrts lilted in the U.S. Embassy or Consulate specific iD.terv.i.ew guidClines

The following table lists the documents requcsmd by the NVC aDd whether or DOt you submitted them to tbe NVC. Plale DOte dlat evea t1un11la you auy have pruvfded tile NVC with a~ of a doc~ you ue 1tiD required to brlag the !!iliUI doclllllat te t1te flu interview.

Refer to lbcDoeume:nt Status Code Defilliti.ODS on Page 3 to dctemline the mcaaiog ofthe documellt statui codes.

PocumentN&me

CORRESPONDENCE JNSTRUCfiONS
1- IMMIGRANTVISA APPLICATION PART 1

1 -IMMIGRANT VISA APPLICATION PART 2

PASSPORT

.

3 - BIRTH CERTIFICATE

4-ADOPTION

5- MARRIAGE CERTIFICATE

6- MARRIAGE TERMJNATION

7- COURT RECORDS

F- FINANCIAL EVIDENCE

9- MILITARY RECORDS

10·DJIBOUTI POUCE CERTIFICATE

10- YEMEN POUCE CERTIFICATE

FEE PAYMENT

PHOTOGRAPH

F- PETfllONHR MARRIAGE CERTIFICATE

F- PETlTIONER BIRTH CERTIFICATE

pncnroent Status
c
R R
J 1 F F F F J F F J $ A
F
F

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 15 of 25 PageID# 383
Exhibit E

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 16 of 25 PageID# 384
'·

1111111111111111111

ROY HODGE ROY HODGE A'ITORNEY AT LAW PlC
8057 MILLER ROAD
SWARTZ CREEK. MI 48473
1•1111111111111111 InterviewLetter (P4)

~28. ·2016
Dear ROY HODGE.
The National Visa Center (NVC) completed the domea1ic pre-processing ofthe immigraDl visa petition ~by AZIZ,AQBLMOHAMMBD on behalfofAMMARAQBLMOHAMBD AZJZ. ~-forward the petition to the U.S. Bolbusyor Collsolate inDJIBOUTI. DJIBOUil fOr
a visa interview. This letter serves as funDal notification ofthe visa iutmview. M VE this leta and
present it to the U.S. Embassy or Consulate auardlrcccptio.llist at the time ofthe interview.

IDtervtew Date ad Time
An immigrant viaa iDteJ:view is scbedulod for AMMARAQEL MOHAMED AZJZ and any eligible derivative applicants (see applicant~: cJiaiblo to attend the inUni.IIW below) at the U.S. Etnblssy or Consulate in DJIBOt.m, DJIBOUIT on November17, 2016 at 07:30am.

Applknts Eligible to Attend the blteme.-
Him
.AZIZ, AMMARAQBLMOHAMED

D.Jk: ofBirth PJacoofBirlb . . .997 YEMBN

Family Remalficatloa Parole (FRP) Program Interviews

Ifyour visa symbol ia CPl or HPt, your petition is processiDg under the Family R.euuification Parole (PRP) Program. Ifyou are processing a& part ofthis program, yon ma.y need to supply additional document~ during your interview. Go to the RequiRdVtaa Intcmew Doeu!ncnts and DOCUIIICDt Status
Code Definitions section of this letterad:

VIew code V for CubL

Vie-w code Q for llaHL

....

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 17 of 25 PageID# 385
IR2- CHILD OF U.S. CTIZ.EN
U.S. Elllbuay or CoD.IUiate Address and Contact IDforma.don To obtah1 the U.S. Bmbassy or Coasulate inDJIBOUITa address and con&act information, visit ll.leDlb~t~y.gov 8Dd select DHBOU'I'I: DJIBOUn ftom the Jist ofwebsites. The U.S. Embassy or Consulale inDJlBOUTl'a website wiD. include ita street address 8Dd COJ11Bct infonnation.
Bow tG Prepare for tile Vila IDterriew Upon receiving1bis letter, all eJisible applicants DIWitprcpme for a visa interview l>y viailiq our website
ave.ltate.govfiDtentew and complete the followini six steps befure the interviewdate:
1. Carefully review this cmtire appointmeut letter 2. Review the U.S. Embusy or Consulate interview instnw1ions 3, Schedule ad complete a medical examiuation 4. Gather all mmaining required documc:nta 5. Review importam intmvicwpreparation noticea 6. Review additional infoJmation on the U.S. Embassy or CoDsulatc's website
• Appliealltl may aeecl to briDg aa addiUODal police c:eitlticate to the bltemew. I!the following three items are aD true, the applli:ant needs to bring 1111 updated poliee ccrtific:ate to the interview: • He or she is more than 16 yean old; • He or she obWncd a police certificate more 1han one year ago; and • He or she still lives in the country that issued the police certificate.
• BriDg tldl fatenfew Jetter to tile medical esaDI. Briog this letter to tho modical exall'.ination because tbe pBDel physician may need to rmew itbefore pcrfonning the cxaminaticm.
• Brlag updated Federallnt.Gllle tu btfonaatloa to the Interview. If&sponsor filed an l-864 (Affidavit ofSupport) del provided the NVC with proofofan IRS Fcdenlincome tax ~on in lieu ofa Federal iDcOIDt tax return, briDg the apoJISOI"s Jl10IIt ICCent Fedenl income tax return to the vila interview.
• Peddoaen are aot reqllirecl to attend tile applicut'aiiDmigrallt visa iatentew. Facility siu and/or tec:urity concerns ma.y limit who may aceompa.ny avia applicant cluriDg his or hervisit to the
u.s.Embassy or Consulate. Please visit 1be U.S. Embassy or Consulate's webpage for more
information at IIHlDhuiiY•&OV·
II
:I

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 18 of 25 PageID# 386 .,

1R2-CHILD OF U.S. CITIZEN

What to do iftile Applkaat Cauot Go to the Jnten1ew
To R!lldlcdule an interview, visit ourwobsite nvc.~tate.cov and m'iew tbe specific lmetYicw OaideliDes fur tlu: U.S. Embassy or~ in DJIBOUTI. Jf1he embusy or ccmsuJate does 110t have any specific
reschedu1iDg IIJidolines listed. c:ontact1heembassy or CODBU1atc directly (aee U.S. Bmbassy or Consulate
Address aud Con~ IDfonnation above) 1o l'C8Chedu1e the eppliCIDfs interview.

Required VIta lntentew DoeumeoU ud Document Statui CGde DefinltfODI

While thB applicant was processingat the National Vila Ccntm, we aabd him or her to submit certain forms and documents. On the followiDg pages. we indicate 1hc status ofeach of1hcleforma and documents and any action the applil:Ult needs to tab to prepare them for the intmriew. Ple81e refer to the documcDt status code dcfinitiooa below to dct.crmiDe what action to take for each item.

DocymMt Status Code PMipftiQIIS:

2 The NVC did not receive Ais document Go to avutate.gov/doCIIIIleD.tl for a Uat ofrequired

doc;wnen&a. You must presc:llt1he original document at the time ofyour imz:rview.

A Obtain 1bia doc\1mcnt and presemit at your interview
c you must briq1his CDlire iJitcnoiew letter to your interview

D The NVC SCDt this form or document to fbc U.S. Bmbaasy OI CuJa!lJate

F

The NVC did not IeqUc8t Ibis form or document

G You wi1bdrcw your I-601A. Application for Provisional Unlawful Preseace Waiver, with users

H You DIIISt obcain two pl86port pbotograpba ofyounelfand present them at your interview

1

This form ia iDcomplete. You mustpreaem a compl~ fonn at your interview.

J

The NVC only received a photocopyoftbe documcat. You JDDStpresart the original documeot

at the time ofyourintaview.

0 · TheNVCSCDt this fimD or document to the U.S. Embassy or Qmsulate

P

You mast teqOOBt tbia polico certificate from tho islllling authority. After you 111!bmit yoUr

request. the issui:Dg BUlhority williiCIId the certificate dinlctly to thoU.S. Embassy or Ccmsulate

for your intCrview.

Q View thi3 website:

www.useis.&ovJibout41iiad~cefmteruatiiiJIII.-o11iees/bailii)Olt~co-field.oflicc

R You submittedthe lmmigtantVisa Application online

S The NVC only receiveda sCilDDed documeot. You mustpxeeont the origiJW documcmt at the time

of)'OUtinteJview.

T You must present an English tramslationofthia document at !he time ofycmrinterview.

U You indicated tbia d.ocument was -unavailllble. 1bc consular officer will decide whether to waive
the requin:ment for this document at your iDterview.

V View the website at baftu.allllt.pv/d'rp.htmlb- Bnglish or

lpaaiiiLIIavua.UIIDtgov/cfrp.btJIII fur Spanish 8Dd follow the iDatru.ctiODI.

X This doc:ument is Ull.ObtiUnable.

Y ThoNVC SCDt this fonn ordocument to the U.S. Bmbusy or Consulate.

$ Payment receiwd.

+ The NVC re1umod this document to you per your request. Present tbia document at )'Wf

interview.

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 19 of 25 PageID# 387

AMMAR AQEL MOHAMED AZIZ'a Required VIsa lutemew Doedllleuta

NVC Case Number: ~ ApplicantName: ~MOHAMEI>AZIZ

Visa Symbol:

llU CHILD OF U.S. CITIZBN

InvoiceiD:

Bencficillry ID:

You mustbring the following items to the visa interview: • Ally original docwncnts die NVC requested that you did not submit (Jefi:r to the documeDt list below)
• Ifdie physician gives you your medical examl111ul1s. bring 1hem to your intt:rview inthe envelope sealed
by the Inlldical. office.
• Two passportphotographs meuuring 2 inches by 2 inahea (S em by s em) with a white be&:kpnmd
• A valid unexpired passport
• Photocopies ofall civil documcats • A DeW police~ ftom your CIJlTCDt country ofreaidc:nce, ifyou obtained the police oertificlde
mOie 1han ooe year 1180· • Any additiollal clocumenta liated in the U.S. Embassy or ~ specific imerview guidclintAI

Tbc fullowing table lists the documeniB requested by tbc NVC BDd whether or not you submitted them to the NVC. Ple81e aote tbat even tlunlgla you may Jaaye provided the NVC ~a Clip)' of • doamalllt, you
are sdll required to briDJ the .lldllul dotwneut te O.e ..tsa tutervlew.

Refer to the Documeat Status Code Definitioos on Page 3 to detmmine the meaning ofthe documc:Dt status codes.

Doc:umcnt Name CORRESPONDENCE INSTR.UcnONS
1-~GRANT~AAP~CATIONPARTl
1 -IMMIGRANT VISA APPUCATION PART 2 PASSPORT 3 - BIR.TII CERTIFICATE 4-ADOPTION S- MARRIAGE CERTIFICATE
6-MARWAGE~ATION
7- COURT RECORDS F- FINANCIAL EVIDENCE 9- MILITARY RECORDS 10- DJlBOUTI POUCB CERTIFICATE 10- YEMEN POliCE CERTIFICATE FEE PAYMENT PHOTOGRAPH F- PE1Tl'IONER. MARRIAGE CERTIFICATE F- PE1ITIONER. BIRTH CERTIFICATE

Dopnment S1Rtns
c
R R J L F F F F 1 F F X $ A F F

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 20 of 25 PageID# 388
Exhibits F&G

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 21 of 25 PageID# 389
Resheduled Appointments:
Consular Djibouti Mailbox
To;RoyHodge

US EMBASSY LOT NUMBER 350-B
LOTISSEMENT I!AliAMous
DJIB001I

Date: 07 Dec 2016

Dear AZIZ, TAREQ AQ:EL MOHAMED:
~his office is ready to beqin final processing of the immigrant visa applicant (s) named :below in this case. We have scheduled an appointment for a visa intervisw in the Immigrant Visa section on the date printed below. This letter ~ust be presented upon your arrival at this office on the appoin~nt date.
Please see tbe enclosed infocmation for further instruction about the medical examination required for all intending immigrants. Be sure to read all of the enclosed information and follow the instructions very carefully . When communicating with this office either by telephone or letter, please provide your na~e and case number exactly as shown in this letter.
Sincerely

Branch

Chief, Immigrant Visa

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 22 of 25 PageID# 390

21'112017

~~~nm~~~-~11111111111111 Roy....

Visa Appointment

Date

Time

w•••••••••****•*****

04 JAN 2017 07:30

Medical Appointment

Date

Time

Case N'UIIIber:
Name (P)
Preference Category: 1R2 - YEM
Traveling Applicants:
(P) AZIZ., TAREQ AOEL MOHAMED

US EMBASSY
Im NUMBER 350-B
LOTISSEMENT HARAMOUS
DJIBOUTI

Date: 07 Dec 2016

Dear AZIZ, AMMAR AQEL MOHAMED:
This office is ready to begin final processing of the iPM!grant visa applicant(s) named below in this case. We have scheduled an appointment for a visa interview in the Immigrant Visa section on the date printed below . This letter ~st be presented upon your arrival at this office on the appointment date.
Please see the enclosed information.for further instruction about the medical examination required for all intending ~grants. Be sure to read all of the enclosed information and follow the ~structions very carefully. When communicating with this office either by telephone or letter, please provide your name and case number exactly as shown in this letter.
Sincerely

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 23 of 25 PageID# 391
211/l!117

Branch

Chief, lmmiqrant Visa

Visa Appointment

Date

Time

04 JAN 2011 07:30

Medical Appointment

Date

Time

Case NUIIlber:
Name (P} AZIZ, AMMAR AQBL MOHAMED
Preference Category: IR2 - YEN

Travelinq Applicants:
(P) AZIZ, AMMAR AQEL MOHAMED

- 1997

Oftkial- PrivacyiPII UNCLASSIFIED

/s/Roy Hodge Attorney@ Law PLC
-8-0·5-·7..M...i.l.l.e...r..R..o..a..d.
rSewi:a"r{tzsiCor)e.6e3k,i)M:6l694894··7--3·
Fax: (810)63~201

From: Roy HodJe Sent: Mondw Decembl!r
To:

at-- To the Approprtate Personnel:

The above referenced applicants are now In Djibouti. They were late because a cholera outbreak in Yemen

restricted travel. Howew~ow in Djibouti and would like to reschedule their appointments. They can

be reached directly

Thank you for your time and consideration.

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 24 of 25 PageID# 392
21112017
/s/Roy Hodge
Attorney • Law PLC
8057 Miller Road
s=\r~eiinlsiitotrc6re3e0~.-M66i9498·4·7··3·
Fax: (810) 635-8201
Ftom: lbrahlmA1lz• . . _ _ _
Sent:Mon~Oea-~ m To: Roy SubJect:
On Matday, December5, 2016 7:40PM, Roy Hodge ~rote:
/s/Rov Hodge Attorney 0 Law PLC
8057 Miller Road s"Warticie.i~-Mi 48473
=reF(iiio;·&~9· · ···
Fax: (810} 635-8201
The above referenced applicant's are scheduled for Interviews on November 27, 2016 at 7:30am. However, they are havlns difficulty reachlns Djibouti due to travel restrictions Imposed on Yemeni citizens. Please be advised they are doing thelr best to be there at their appointed lime.
/s/Rf1'/ Hodge Attorney @ Law PLC 8057 Miller Road
s..w..i.i.t.ic..r.e.e. .i.c.l ..M. ..i.4..8.4.7. .3.
Tel: (810) 630-0699 Fax: (810)635~201

Case 1:17-cv-00116-LMB-TCB Document 56 Filed 02/08/17 Page 25 of 25 PageID# 393 CERTIFICATE OF SERVICE
I hereby certify that on February 8, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael
1

 
 Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 1 of 17 PageID# 394

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

TAREQ AQEL MOHAMMED AZIZ, et al., )

)

Petitioners,

)

)

THE COMMONWEALTH OF VIRGINIA, )

)

Intervenor-Petitioner

)

)

v.

)

)

DONALD J. TRUMP, President of the United )

States, et al.,

)

)

Respondents.

)

)

)

)

Civil Action No. 1:17-cv-116

JOINT DECLARATION OF MADELEINE K. ALBRIGHT, AVRIL D. HAINES, MICHAEL V. HAYDEN, JOHN F. KERRY, JOHN E. McLAUGHLIN,
LISA O. MONACO, MICHAEL J. MORELL, JANET A. NAPOLITANO, LEON E. PANETTA AND 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.

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 2 of 17 PageID# 395
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. 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

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 3 of 17 PageID# 396
lives and jobs of American citizens and residents. And apart from all of these concerns, the Order offends our nation’s laws and values.
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

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 4 of 17 PageID# 397
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 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.

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 5 of 17 PageID# 398
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 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. Blocking the Executive 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. Allowing the Executive Order to take effect 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.

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 6 of 17 PageID# 399
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]

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 7 of 17 PageID# 400

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 8 of 17 PageID# 401

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 9 of 17 PageID# 402

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 10 of 17 PageID# 403

LIOZ'KmnrqeCJo f,ep q,g slql CgJOlgXg

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 11 of 17 PageID# 404

NITHJOY'ICW'g NIHO 73

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 12 of 17 PageID# 405

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 13 of 17 PageID# 406

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 14 of 17 PageID# 407 EXECUTED this 5 th day of February, 2017 APOLITANO

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 15 of 17 PageID# 408

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 16 of 17 PageID# 409
EXECUTED this 5th day of February, 2017 ________/s/___________________ SUSAN E. RICE

Case 1:17-cv-00116-LMB-TCB Document 57 Filed 02/08/17 Page 17 of 17 PageID# 410 CERTIFICATE OF SERVICE
I hereby certify that on February 8, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael
1

 
 Case 1:17-cv-00116-LMB-TCB Document 61 Filed 02/08/17 Page 1 of 9 PageID# 452

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al.,

)

)

Petitioners,

)

)

THE COMMONWEALTH OF VIRGINIA,

)

)

Intervenor-Petitioner,

)

)

v.

)

)

DONALD TRUMP, President of the United

)

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

DECLARATION OF MAMOONA “MONA” H. SIDDIQUI I, Mamoona “Mona” H. Siddiqui, declare that the following facts are true to the best of my knowledge, information, and belief. 1. I am an Assistant Attorney General for the Commonwealth of Virginia, and I have served in this capacity since January 12, 2015.
PRINT SOURCES 2. I have compiled and attached the print sources cited in the Commonwealth’s Brief in Support of Preliminary Injunction, ECF No. 31. 3. A true and accurate copy of Department of Homeland Security Secretary John F. Kelly’s January 29, 2017 Statement on the Entry of Lawful Permanent Residents into the United States, referenced in footnotes 49 and 50, is attached hereto as Exhibit 1. The statement can also be found at https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawfulpermanent-residents-united-states. 4. A true and accurate copy of the December 7, 2015 Vox article titled, “Donald
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Trump proposes ‘total and complete shutdown of Muslims entering the United States,’” referenced in footnotes 67 and 68 of Virginia’s opening brief, is attached hereto as Exhibit 2. The article can also be found at http://www.vox.com/2015/12/7/9867900/donald-trump-muslims.
5. A true and accurate copy of the December 8, 2015 Politico article by Nick Gass titled “Trump not bothered by comparisons to Hitler,” referenced in footnotes 69 and 70 of Virginia’s opening brief, is attached hereto as Exhibit 3. The article can also be found at http://www.politico.com/trump-muslims-shutdown-hitler-comparison.
6. A true and accurate copy of the January 29, 2017 Washington Post article by Amy B. Wang titled “Trump asked for a ‘Muslim ban,’ Guiliani says – and ordered a commission to do it ‘legally,’” referenced in footnote 71 of Virginia’s opening brief, is attached hereto as Exhibit 4. The article can also be found at https://www.washingtonpost.com/news/thefix/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says-and-ordered-a-commission-todo-it-legally/?utm_term=.2f88f830c54c.
7. A true and accurate copy of the January 31, 2017 Washington Post article by Francis Stead Sellers and David A. Fahrenthold titled “‘Why even let ’em in?’ Understanding Bannon’s worldview and the policies that follow,” referenced in footnotes 73 and 74 of Virginia’s opening brief, is attached hereto as Exhibit 5. The article can also be found at https://goo.gl/IPIV14.
8. A true and accurate copy of the January 27, 2017 CBN News article titled “Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees,” referenced in footnote 75 of Virginia’s opening brief, is attached hereto as Exhibit 6. The article can also be found at http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brodyfile-exclusive-president-trump-says-persecuted-christians-will-be-given-priority-as-refugees.
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Case 1:17-cv-00116-LMB-TCB Document 61 Filed 02/08/17 Page 3 of 9 PageID# 454
9. A true and accurate copy of the February 1, 2017 NPR article by Ron Elving titled “Gorsuch Pick For Top Court Fulfills Trump Campaign Pledge, Confirms Democrats’ Fears,” referenced in footnote 76 of Virginia’s opening brief, is attached hereto as Exhibit 7. The article can also be found at https://goo.gl/XOvzqK.
10. A true and accurate copy of the January 31, 2017 New York Times article by Alan Blinder and Matt Apuzzo titled “Trump’s Talk About Muslims Led Acting Attorney General to Defy Ban,” referenced in footnote 77 of Virginia’s opening brief, is attached hereto as Exhibit 8. The article can also be found at https://www.nytimes.com/2017/01/31/us/politics/sally-yatestrump-immigration-ban.html.
11. A true and accurate copy of then-Acting Attorney General Sally Q. Yates’s January 30, 2017 Memo, referenced in footnote 77 of Virginia’s opening brief, is attached hereto as Exhibit 9. The memo can also be found at http://documents.latimes.com/message-actingattorney-general/.
12. A true and accurate copy of the January 30, 2017 New York Times article by Michael D. Shear, Mark Landler, Matt Apuzzo, and Eric Lichtblau titled “Trump Fires Acting Attorney General Who Defied Him,” referenced in footnote 78 of Virginia’s opening brief, is attached hereto as Exhibit 10. The article can also be found at https://www.nytimes.com/2017/01/30/us/politics/trump-immigration-ban-memo.html.
13. A true and accurate copy of Memo of Dissent from Foreign Service officers and other diplomats published on January 30, 2017, referenced in footnotes 79-81 of Virginia’s opening brief, is attached hereto as Exhibit 11. The memo can also be found at https://goo.gl/JCAUdL.
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Case 1:17-cv-00116-LMB-TCB Document 61 Filed 02/08/17 Page 4 of 9 PageID# 455
VIDEO AND AUDIO SOURCES 14. I have compiled the original video and audio clips cited in the Commonwealth’s Brief in Support of Preliminary Injunction, ECF No. 31. The video and audio clips are identified below and also are contained on a USB flash drive, which will be filed if the Court grants the Commonwealth permission to file the flash drive.
a. A true and accurate copy of video clips, published on February 1, 2017, from the January 31, 2017 news conference by Secretary Kelly and Acting Commissioner of Customs and Border Protection Kevin K. McAleenan on President Trump’s Travel Ban Orders, referenced in footnotes 51, 52, and 72 of Virginia’s opening brief. The full video can also be found at https://www.youtube.com/watch?v=pkdF5SSk8aQ.
b. A true and accurate copy of a video clip of an interview by Jeanine Pirro with informal White House Cybersecurity Advisor1 Rudy Giuliani on Fox News regarding President Trump’s Ban published on January 29, 2017, referenced in footnote 71 of Virginia’s opening brief. The interview can also be found at http://www.mediaite.com/tv/giuliani-after-trump-announced-muslim-ban-he-asked-mefor-right-way-to-do-it-legally/.
c. A true and accurate copy of an audio clip of the November 18, 2015 radio interview by White House Chief Strategist Steve Bannon, then Executive Chairman of Breitbart News, with Congressman Ryan Zinke, referenced on page 19 and footnote 74 of Virginia’s opening brief. The statement can also be found at https://soundcloud.com/breitbart/breitbart-news-daily-congressman-ryan-zinke1 See Abby Phillip, Trump names Rudy Giuliani as cybersecurity advisor, The Wash. Post: PowerPost (Jan. 12, 2017), https://www.washingtonpost.com/news/powerpost/wp/2017/01/12/trump-names-rudy-giulianias-cybersecurity-adviser/?utm_term=.0e1f9e6a467d.
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november-18-2015. d. A true and accurate copy of a video clip from the January 27, 2017 CBN
Brody File interview with President Trump (“Persecuted Christians Will Be Given Priority As Refugees”), referenced in footnote 75 of Virginia’s opening brief. The full interview can be found at http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brodyfile-exclusive-president-trump-says-persecuted-christians-will-be-given-priority-asrefugees.
e. A true and accurate copy of the President Trump’s January 31, 2017 announcement of his Supreme Court nominee, referenced in footnote 76 of Virginia’s opening brief. The announcement can also be found at https://goo.gl/DB5Ods.
ADDITIONAL SOURCES TO BE RELIED UPON 15. I have compiled additional articles, which are attached as exhibits to this Declaration and identified below. 16. A true and accurate copy of the December 7, 2015 press release titled “Donald J. Trump Statement on Preventing Muslim Immigration,” is attached hereto as Exhibit 12. The press release can also be found at https://www.donaldjtrump.com/press-releases/donald-j.-trumpstatement-on-preventing-muslim-immigration. 17. A true and accurate copy of the November 18, 2016 Independent article by Harriet Agerholm titled “Donald Trump seen calling for a Muslim registry in new video despite denials,” is attached hereto as Exhibit 13. The article can also be found at http://www.independent.co.uk/news/world/americas/us-elections/donald-trump-muslim-registryvideo-president-islam-policies-immigration-a7424511.html. 18. A true and accurate copy of the December 21, 2016 Washington Post article by
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Case 1:17-cv-00116-LMB-TCB Document 61 Filed 02/08/17 Page 6 of 9 PageID# 457
Aaron Blake titled “Trump says we’ve known his Muslim ban and database plans ‘all along.’ But we still don’t — not really,” is attached hereto as Exhibit 14. The article can also be found at https://www.washingtonpost.com/news/the-fix/wp/2016/11/17/the-evolution-of-donald-trumpand-the-muslim-database/?utm_term=.4e0291cebb68.
19. A true and accurate copy of the January 31, 2017 College Factual article titled “How Trump’s Executive Order Affects Thousands of International Students in the U.S.,” is attached hereto as Exhibit 15. The article can also be found at http://inside.collegefactual.com/blog/how-trumps-travel-ban-affects-thousands-of-internationalstudents.
20. A true and accurate copy of the February 1, 2017 Business Insider article by Abby Jackson titled “The 10 US colleges that stand to lose the most from Trump’s immigration ban,” is attached hereto as Exhibit 16. The article can also be found at http://www.businessinsider.com/colleges-potentially-most-affected-trump-immigration-ban2017-2.
21. A true and accurate copy of the February 5, 2017 8:55 a.m. online update of the Washington Post article by Josh Rogin titled “Inside the White House-Cabinet battle over Trump’s immigration order” is attached hereto as Exhibit 17. The article can also be found at https://goo.gl/3aYFlI.
22. A true and accurate copy of a string of tweets by Donald J. Trump @ realDonaldTrump ranging from December 2011 through December 2015, published at storify.com is attached hereto as Exhibit 18. The article can also be found at https://storify.com/saenpremium/donald-trump-on-islam-muslims-and-the-middle-east.
23. A true and accurate copy of a transcript of Donald J. Trump’s March 30, 2011
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interview with Bill O’Reilly is attached hereto as Exhibit 19. The transcript can also be found at http://www.foxnews.com/transcript/2011/03/30/donald-trump-sits-down-bill-oreilly/.
24. A true and accurate copy of the November 20, 2015 New York Times article by Trip Gabriel titled “Donald Trump Says He’d ‘Absolutely’ Require Muslims to Register” is attached as Exhibit 20. The article can also be found at https://www.nytimes.com/politics/firstdraft/2015/11/20/donald-trump-says-hed-absolutely-require-muslims-to-register/.
25. A true and accurate copy of the December 8, 2015 Daily Wire article by Robert Kraychik titled “Trump to MSNBC: ‘The Muslim Community Is Not Reporting What’s Going On’” is attached as Exhibit 21. The article can also be found at http://www.dailywire.com/news/1692/trump-msnbc-muslim-community-not-reporting-whatsrobert-kraychik.
26. A true and accurate copy of a transcript of Donald J. Trump’s and Mike Pence’s July 17, 2016 interview with Lesley Stahl is attached as Exhibit 22. The transcript can also be found at http://www.cbsnews.com/news/60-minutes-trump-pence-republican-ticket/.
27. I have compiled the additional video and audio clips identified below. The video and audio clips also are contained on a USB flash drive, which will be filed if the Court grants the Commonwealth permission to file the flash drive.
a. A true and accurate video of then-Presidential Candidate Donald J. Trump’s December 7, 2015 Pearl Harbor Day campaign rally in Mount Pleasant, South Carolina reading from his press release dated December 7, 2015 “Statement on Preventing Muslim Immigration.” The full video can be found at https://www.cspan.org/video/?401762-1/presidential-candidate-donald-trump-rally-mount-pleasantsouth-carolina&start=1811.
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Case 1:17-cv-00116-LMB-TCB Document 61 Filed 02/08/17 Page 8 of 9 PageID# 459
b. A true and accurate copy of a video of a November 2015 exchange between Donald Trump and a reporter regarding a Muslim. In this video, thenPresidential Candidate Trump is asked how do you actually get Muslims registered; he responds, “It would just be good management what you have to do is good management procedures. And we can do this.” The video can also be found at http://www.independent.co.uk/news/world/americas/us-elections/donald-trump-muslimregistry-video-president-islam-policies-immigration-a7424511.html.
c. A true and accurate copy of the March 9, 2016 video of then-Presidential Candidate Donald Trump on ‘Anderson Cooper 360’ explaining that “Islam hates us.” The video can also be found at http://www.cnn.com/videos/politics/2016/03/10/donaldtrump-islam-intv-ac-cooper-sot.cnn.
d. A true and accurate copy of the May 11, 2016 audio of then-Presidential Candidate Donald Trump on ‘Kilmeade & Friends’ discussing the Muslim ban. The video can also be found at http://video.foxnews.com/v/4890453028001/?#sp=show-clips.
e. A true and accurate copy of the May 11, 2016 interview of thenPresidential Candidate Donald Trump on ‘On the Record with Greta’ on Fox News discussing the five- to seven-member immigration commission headed by Rudy Giuliani to look at the Muslim ban. The video can also be found at https://www.youtube.com/watch?v=gyS2zL2ofbs.
f. A true and accurate video of then-Presidential Candidate Donald J. Trump’s December 7, 2016 Pearl Harbor Day campaign rally in Mount Pleasant, South Carolina reading his press release dated December 7, 2016 “Statement on Preventing Muslim Immigration.” The press full video can be found at https://www.c-
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2/5/2017 Case 1:S1ta7te-cmven-t0B0y1S1ec6re-tLarMy JBoh-nTKCelBly OnDTohecEunmtryeOnf tLa6w1fu-l1PermFainleendt R0e2si/d0en8ts/1In7to ThPeaUgnieted1Stoatfes1| PHoamgeelanIDd S#ec4u6rit1y

Official website of the Department of Homeland Security

Contact Us Quick Links Site Map A­Z Index

Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents Into The United States

Release Date: January 29, 2017

For Immediate Release Office of the Press Secretary Contact: 202­282­8010

WASHINGTON – In applying the provisions of the president's executive order, I hereby deem the entry of lawful permanent residents to be in the national interest.

Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case­by­case determinations.

# # #

Topics: International (/topics/international) Keywords: international (/keywords/international) , Legal Permanent Residents
(/keywords/legal­permanent­residents)

Last Published Date: January 29, 2017

Siddiqui Decl. -- Exhibit 1

https://www.dhs.gov/news/2017/01/29/statement­secretary­john­kelly­entry­lawful­permanent­residents­united­states

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EXPLAIN THE NEWS
Donald Trump proposes “total and complete shutdown of Muslims entering the United States"
Updated by Dara Lind dara@vox.com Dec 7, 2015, 5:57pm EST

Scott Olson/Getty Images
Donald Trump — who has spent his months atop the Republican polls slowly replacing the anti-immigrant rhetoric in his campaign with anti-Muslim rhetoric — is now officially calling to ban all Muslims from entering the United States.
His campaign has clarified that this would apply to "everybody," mentioning in particular Muslims entering the US as immigrants or tourists. Presumably, "everyone" also includes people entering on temporary work or student visas. His campaign initially claimed Muslim American citizens who are currently traveling abroad would be prevented from reentering the US (something that has already happened in isolated cases, though not

Siddiqui Decl. -- Exhibit 2

http://www.vox.com/2015/12/7/9867900/donald­trump­muslims

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deliberately, to citizens placed on the no-fly list), but in a talk-show appearance Tuesday Trump said Muslim citizens would be allowed to return.
Trump wants the ban to hold "until our country's representatives can figure out what is going on." Here's the full statement:

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.
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

Trump's announcement comes as the FBI has uncovered evidence that the two Muslim American attackers who killed 14 people in San Bernardino, California, last week were both "radicalized" and "had been for some time." One of those attackers, Syed Farook, was born in America. The other, his wife Tashfeen Malik, was born abroad but came to the US to marry Farook.

Is it constitutional to prevent all Muslims from entering the US?
It certainly sounds unconstitutional — the Constitution guarantees the free exercise of religion for all Americans. But when it comes to approving visas to come to the US, the government has a lot of leeway: It doesn't have to tell someone why his or her visa (or

Siddiqui Decl. -- Exhibit 2

http://www.vox.com/2015/12/7/9867900/donald­trump­muslims

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application to immigrate permanently) was denied. So in practice, the US could probably quietly deny Muslims' visa requests for a while. But announcing it in advance would probably be unwise, and the policy might get challenged in court.

Furthermore, tourists visiting from countries participating in the visa waiver program, which allows short visits from certain countries without a visa at all, don't have to apply for visas — so the government wouldn't have the opportunity to quietly bar them from entering. (Ironically, if Congress overhauls the visa waiver program — something both it and the White House think needs to happen in the wake of the Paris attacks last month — this would get easier.)
Trump's been slowly escalating his Islamophobic rhetoric for several weeks
Donald Trump climbed to the top of the GOP presidential polls in part on the strength of his attacks on Mexican and Latino immigrants. But as the summer has turned to fall, Trump — partly in response to news events, and partly to maintain his relevance with a political establishment (and political press) that's been frankly desperate to stop paying attention to him — has turned his focus to Muslims and Muslim Americans.

Trump was weeks ahead of his rivals in calling for the US to stop accepting Syrian refugees — as early as October, he was saying in stump speeches that refugees could be a "Trojan horse" for ISIS and that they should be sent back to Syria to fight there. (Other Republicans adopted variations on this position after the Paris attacks; at least one of the attackers was able to reenter Europe on a fake Syrian passport after leaving.)

In November, Trump began to call for particular mosques to be shut down. He flirted with the idea of requiring all Muslim Americans to register in a database. And just last week, in a speech to the Republican Jewish Coalition, he offset his relatively blatant antiSemitism with an insinuation that Obama himself is Muslim: "Our president doesn’t want to use the term [...] ’radical Islamic terrorism.' There is something wrong with him that we don’t know about."

Trump is tapping into a wave of genuine Islamophobia in the US

Siddiqui Decl. -- Exhibit 2

http://www.vox.com/2015/12/7/9867900/donald­trump­muslims

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Trump justified his call for a Muslim ban by citing a poll that purports to show 25 percent of Muslims believe violence against America is justified. That poll is totally bogus; it comes from the organization of Frank Gaffney, a man who once said that the US missile defense logo is evidence of President Obama's "submission to shariah," and it's riddled with methodological flaws.
But the real reason for Trump's statement — and the reason it resonates so much — is because of a different set of poll results: those showing rising Islamophobia in America.
Americans are more afraid of terrorism than they used to be: Even before the Paris attacks, they were more fearful of becoming victims of terrorism than they had been at any point since the immediate aftermath of 9/11. This is partly because Americans are just more worried, period; they're also more afraid of crime, more worried about race relations, and more concerned about illegal immigration.
They are also less tolerant of Muslims: A survey from the Public Religion Research Institute in September 2015 found that a majority — 56 percent — of Americans think Islam is "at odds with American values and way of life," up from 47 percent in 2011.
This poll was not an outlier, as my colleague Max Fisher has documented:
A February poll showed that 54 percent of Republican respondents believe that Obama "deep down" is best described as Muslim. By September, an Iowa poll found that only 49 percent of Republicans there believed that Islam should be legal, with 30 percent saying it should be illegal and 21 percent "unsure." Among Trump supporters in Iowa, hostility toward Muslims was higher but not that much higher: 36 percent said Islam should be outlawed… Fifty-seven percent of Americans, and 83 percent of Republicans, say that Muslims should be barred from the presidency.
This isn't just about polls, either. Last week, Max documented several examples of Islamophobic violence and threats of violence over the past several months. Here's his conclusion:

Siddiqui Decl. -- Exhibit 2

http://www.vox.com/2015/12/7/9867900/donald­trump­muslims

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2/5/2017 Case 1:17-cv-00D1o1n6al-dLTMrumBp-pTroCpoBses D“tootacl aunmd ceomnptle6te1s-h2utdoFwinleodf M0us2li/m0s8e/n1te7ring PtheaUgneite5d Sotafte5s"P­ VaogxeID# 466 The United States does not officially track the number of citizens who are Muslim, but it's likely a few million. A 2010 Pew survey estimated the Muslim American population at 2.6 million and predicted that by 2030 it would rise to 6.2 million, or about 1.7 percent of the population. These Americans increasingly live in a climate where they face not just hateful and discriminatory rhetoric but also violence and the threat of violence.
The threat of violence often has the same theatrical point as violence itself: to terrify and intimidate, to inflict psychological suffering on the targeted group in the form of fear and alienation, to force that targeted group to live a little bit less in the open and more in the shadows. Obviously, actual attacks on Muslims are worse than implicit or explicit threats — and, make no mistake, when militias stand outside an Islamic center, even if they have no intention of using violence, they are conveying a threat — but they serve the same goal of inflicting suffering on Muslims meant to drive them into the shadows or out of public society altogether.
The day after Fisher wrote this piece, the San Bernardino attacks happened — and law enforcement subsequently discovered they'd been carried out by a pair of radicalized Muslim Americans. And from what we've seen after the shootings, it certainly doesn't seem like Islamophobia is going to lessen, to say the least. As Jennifer Williams catalogued, it didn't take long for coverage of the San Bernardino attacks to turn Islamophobic. President Obama was worried enough about rising Islamophobia that he felt the need to give a primetime Oval Office address Sunday night partly warning Americans not to do exactly what Trump is encouraging them to do. (For what it's worth, the White House wasted no time in condemning Trump's Muslim ban proposal: Deputy National Security Adviser Ben Rhodes said it was "totally contrary to our values as Americans.")
But the bottom line is this: Donald Trump would not be attracting a plurality of support among primary voters as a presidential candidate if he weren't saying things many Americans believe. It might be unconstitutional to turn those beliefs into government policy, but that doesn't make them any less dangerous to American Muslims who could be the victims of emboldened Islamophobic violence.

Watch: President Obama's speech

Siddiqui Decl. -- Exhibit 2

http://www.vox.com/2015/12/7/9867900/donald­trump­muslims

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

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

Siddiqui Decl. -- Exhibit 3

http://www.politico.com/trump­muslims­shutdown­hitler­comparison

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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

Siddiqui Decl. -- Exhibit 3

http://www.politico.com/trump­muslims­shutdown­hitler­comparison

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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

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2/5/2017 Case 1:17-cv-00116-LMB-TCBTrumDponcotubmotheenretd 6by1c-o3mpaFrisiloensdto0H2it/le0r8­ /P1O7LITICPOage 4 of 6 PageID# 470

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

Siddiqui Decl. -- Exhibit 3

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2/5/2017 Case 1:17-cv-00116-LMB-TCBTrumDponcotubmotheenretd 6by1c-o3mpaFrisiloensdto0H2it/le0r8­ /P1O7LITICPOage 5 of 6 PageID# 471
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."

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2/5/2017 Case 1:17-cv-00116-LMB-TCBTrumDponcotubmotheenretd 6by1c-o3mpaFrisiloensdto0H2it/le0r8­ /P1O7LITICPOage 6 of 6 PageID# 472
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."

Siddiqui Decl. -- Exhibit 3

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Case 1:17-cv-00116-LMB-TCB Document 61-4 Filed 02/08/17 Page 1 of 4 PageID# 473
The Fix
Trump asked for a ‘Muslim ban,’ Giuliani says — and ordered a commission to do it ‘legally’
By Amy B Wang January 29
Former New York mayor Rudy W. Giuliani said President Trump wanted a “Muslim ban” and requested he assemble a commission to show him “the right way to do it legally.”
Giuliani, an early Trump supporter who once had been rumored for a Cabinet position in the new administration, appeared on Fox News late Saturday night to describe how Trump's executive order temporarily banning refugees came together.
Trump signed orders on Friday not only to suspend admission of all refugees into the United States for 120 days but also to implement “new vetting measures” to screen out “radical Islamic terrorists.” Refugee entry from Syria, however, would be suspended indefinitely, and all travel from Syria and six other nations — Iran, Iraq, Libya, Somalia, Sudan and Yemen — is suspended for 90 days. Trump also said he would give priority to Christian refugees over those of other religions, according to the Christian Broadcasting Network.
Fox News host Jeanine Pirro asked Giuliani whether the ban had anything to do with religion.
“How did the president decide the seven countries?” she asked. “Okay, talk to me.”
“I'll tell you the whole history of it,” Giuliani responded eagerly. “So when [Trump] first announced it, he said, 'Muslim ban.' He called me up. He said, 'Put a commission together. Show me the right way to do it legally.' "
Giuliani said he assembled a “whole group of other very expert lawyers on this,” including former U.S. attorney general Michael Mukasey, Rep. Mike McCaul (R­Tex.) and Rep. Peter T. King (R­N.Y.).
“And what we did was, we focused on, instead of religion, danger — the areas of the world that create danger for us,” Giuliani told Pirro. “Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that's what the ban is based
Siddiqui Decl. -- Exhibit 4

on. It's not Cbaasseed o1n:1r7el-icgvio-0n.0I1t'1s6b-aLsMedBo-nTpClaBcesDwohceuremtehenrte6a1re-4subFsitlaendti0al2e/v0i8d/e1n7ce tPhaatgpeeo2ploefa4rePsaengdeiInDg#te4rr7o4rists into
our country.”
It was unclear when the phone call Giuliani took place and when the commission began working. An email to the White House press office was not immediately returned Sunday.
Clips of the exchange between Giuliani and Pirro quickly went viral Saturday night, with some claiming that Giuliani's statement amounted to admitting Trump's intent had been to institute a ban based on religion.
Others, including Trump senior adviser Kellyanne Conway and White House Chief of Staff Reince Priebus, have insisted it is not a ban on Muslims, but rather one based on countries from which travel was already restricted under Barack Obama's administration.
Priebus appeared on CBS's “Face the Nation” Sunday morning to say it was possible Trump would expand the list of countries included in the travel ban.
“You can point to other countries that have similar problems, like Pakistan and others,” Priebus told host John Dickerson. “Perhaps we need to take it further.”
Priebus also said there had been weeks of work and “plenty of communication” between the White House, the State Department and the Department of Homeland Security regarding the ban.
“We didn't just type this thing up in an office and sign up,” he told Dickerson.
Later on the same program, Rep. Keith Ellison (D­Minn.) called out Giuliani's interview with Pirro from the night before.
“They can't deny that this is a Muslim ban,” Ellison told Dickerson. “On the campaign trail, [Trump] said he wanted a Muslim ban. ... Rudolph W. Giuliani who helped him write it said that they started out with the intention of a Muslim ban and then they sort of 'languaged' it up so to try to avoid that label, but it is a religiously based ban.”
Senate Democrats vowed to draft legislation to block the travel ban.
“We’re demanding the president reverse these executive orders that go against what we are, everything we have always stood for,” Senate Minority Leader Charles E. Schumer (D­N.Y.) said in a news conference Sunday morning, noting later that his middle name, Ellis, was originally inspired by Ellis Island.
“It was implemented in a way that created chaos and confusion across the country, and it will only serve to embolden and inspire those around the globe those that will do us harm,” Schumer added of the ban. “It must be reversed immediately.”
Siddiqui Decl. -- Exhibit 4

Trump's exCecaustieve1o:1rd7e-rcsvp-0ar0k1e1d6m-LasMsiBve-TpCroBtestDs aotcauimrpeorntts 6ar1o-u4ndFthilee dco0u2n/t0ry8F/1r7idayPaangdeS3atuorfd4ayP, aasgreeIpDo#rts4s7u5rfaced
that dozens of travelers from the affected countries, including green­card holders, were being detained.
The American Civil Liberties Union filed a lawsuit Saturday morning challenging Trump’s order after two Iraqi men with immigrant visas were barred from entering the United States at New York's John F. Kennedy International Airport.
As Giuliani was speaking, Fox News simultaneously aired an alert that noted federal judge Ann M. Donnelly had issued a stay to stop the deportations nationwide.
Donnelly wrote that there was a strong likelihood the order had violated the petitioners' rights to due process and equal protection by the Constitution.
“There is imminent danger that, absent the stay of removal, there will be substantial and irreparable injury to refugees, visa­ holders, and other individuals from nations subject to the January 27, 2017 Executive Order,” Donnelly wrote.
The ACLU hailed the victory.
“Clearly the judge understood the possibility for irreparable harm to hundreds of immigrants and lawful visitors to this country,” ACLU executive director Anthony D. Romero said in a statement. “Our courts today worked as they should as bulwarks against government abuse or unconstitutional policies and orders. On week one, Donald Trump suffered his first loss in court.”
On Sunday, the Department of Homeland Security issued a statement saying it did not plan to back off enforcing Trump's orders.
“President Trump’s Executive Orders remain in place — prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas at any time if required for national security or public safety,” the statement read. “President Trump’s Executive Order affects a minor portion of international travelers, and is a first step towards reestablishing control over America's borders and national security.”
The department said that less than 1 percent of daily international air travelers to the United States had been “inconvenienced” on Saturday.
Matthew Kolken, an immigration attorney based in Buffalo said there has been “a systemic bias against individuals from Muslim countries in the U.S. immigration departments” for years, including under the Obama administration.
“This isn't unprecedented,” Kolken told The Washington Post by phone Sunday. “The unfortunate reality is the executive branch does have vast discretionary authority to determine who they are going to [allow in or not].”

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Siddiqui Decl. -- Exhibit 4

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Keeping upCawsiteh 1p:o1li7ti-ccsv-is00e1as1y6n-LoMw.B-TCB Document 61-4 Filed 02/08/17 Page 4 of 4 PSaiggneIuDp# 476
Still, Kolken said, he believes “Trump has gone a step further without a doubt” in including even people who are lawful permanent residents and suspending all immigration applications from people from the seven countries on the banned list. If there was evidence of disparate treatment of individuals from the same country — if there were anecdotal evidence of, for example, a Syrian family of one religious background allowed to enter over that of another religious background — then that is where lawsuits could come into play, he said.
“The question becomes whether they're trying to do an end­around by couching the ban as a country­specific ban based on a security­related issues when in reality it's a religious ban,” Kolken said. Read more: Fact Checker: What you need to know about terror threat from foreigners and Trump’s executive order ‘I am heartbroken’: Malala criticizes Trump for ‘closing the door on children’ fleeing violence A ship full of refugees fleeing the Nazis once begged the U.S. for entry. They were turned back. Trump’s travel ban could make Rex Tillerson’s potential job harder, a former defense secretary says
Amy B Wang is a general assignment reporter for The Washington Post.  Follow @amybwang

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Siddiqui Decl. -- Exhibit 4

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Case 1:17-cv-00116-LMB-TCB Document 61-5 Filed 02/08/17 Page 1 of 6 PageID# 477
Politics
‘Why even let ’em in?’ Understanding Bannon’s worldview and the policies that follow.
By Frances Stead Sellers and David A. Fahrenthold January 31
In November 2015, Stephen K. Bannon — then the executive chairman of Breitbart News — was hosting a satellite radio show. His guest was Rep. Ryan Zinke (R­Mont.), who opposed President Obama’s plan to resettle some Syrian refugees in the United States.
“We need to put a stop on refugees until we can vet,” Zinke said.
Bannon cut him off.
“Why even let ’em in?” he asked.
Bannon said that vetting refugees from Muslim­majority countries would cost money and time. “Can’t that money be used in the United States?” he said. “Should we just take a pause and a hiatus for a number of years on any influx from that area of the world?”
In the years before Bannon grabbed the world’s attention as President Trump’s chief White House strategist, he was developing and articulating a fiery populist vision for remaking the United States and its role in the world.
Bannon’s past statements, aired primarily on Breitbart and other conservative platforms, serve as a road map for the controversial agenda that has roiled Washington and shaken the global order during Trump’s first two weeks in office.
Now, at the center of power in the White House, Bannon is moving quickly to turn his ideas into policy, helping direct the biggest decisions of Trump’s administration. The withdrawal from a major trade pact. A ban on all visitors from seven majority­Muslim countries. And — in an echo of that conversation with Zinke, who is now Trump’s nominee for interior secretary — there was a temporary ban on all new refugees.
Siddiqui Decl. -- Exhibit 5

The result hCaassbeee1n:1in7te-cnvse-0f0ur1y1f6ro-LmMDBe-mToCcBratsD, doisccuommefonrtt 6am1-o5ng Fmilaendy 0R2ep/0u8b/l1ic7ansP, aangdea2groofw6inPgasegnesIeDo#f u4n7e8ase in the
world that Trump intends to undermine an America­centered world that has lasted 70 years. This sense of turmoil, welcomed by many Trump supporters as proof that the new president is following through on his vow to jolt Washington, reflects the sort of transformation that Bannon has long called for.

That worldview, which Bannon laid out in interviews and speeches over the past several years, hinges largely on Bannon’s belief in American “sovereignty.” Bannon said that countries should protect their citizens and their essence by reducing immigration, legal and illegal, and pulling back from multinational agreements.

At the same time, Bannon was concerned that the United States and the “Judeo­Christian West” were in a war against an expansionist Islamic ideology — but that they were losing the war by not recognizing what it was. Bannon said this fight was so important, it was worth overlooking differences and rivalries with countries like Russia.

It is not yet clear how far Bannon will be able to go to enact his agenda. His early policy moves have been marred by administrative chaos. But his worldview calls for bigger changes than those already made.

In the past, Bannon had wondered aloud whether the country was ready to follow his lead. Now, he will find out.

“Is that grit still there, that tenacity, that we’ve seen on the battlefields . . . fighting for something greater than themselves?” Bannon said in another radio interview last May, before he joined the Trump campaign.

That, said Bannon, is “one of the biggest open questions in this country.”

Bannon, 62, is a former Navy officer and Goldman Sachs banker who made a fortune after he acquired a share of the royalties from a fledgling TV show called “Seinfeld.” In the past 15 years, he shifted into entertainment and conservative media, making films about Ronald Reagan and Sarah Palin and then taking a lead role at Breitbart News.

At Breitbart, Bannon cemented his role as a voice for the alt­right, the far­right movement that has attracted white supremacists and has found a home on the website.

Bannon also forged a rapport with Trump, interviewing the businessman­candidate on his show and then, in August 2016, joining the campaign as chief executive.

Now, Bannon has become one of the most powerful men in America. And he’s not afraid to say so.

In interviews with reporters since Trump’s election, Bannon has eschewed the traditional it’s­all­about­the­boss humility of presidential staffers.

“Dick Cheney. Darth Vader. Satan. That’s power,” he told the Hollywood Reporter in November, embracing the comparisons

of him to those figures.

Siddiqui Decl. -- Exhibit 5

In the sameCiantseerv1ie:1w7, -Bcavn-n0o0n1c1o6m-LpMarBed-ThCimBselfDtoocaupmoweenrtfu6l1a-i5de tFoilEendgl0a2n/d0’s8H/1e7nryPVaIgIIe—3aonfa6idPe awgheoIDhe#lp4e7d9engineer a
world­shaking move of his era, the split of the Church of England from the Catholic Church.
“I am Thomas Cromwell in the court of the Tudors,” Bannon told the Hollywood Reporter.
To explore Bannon’s worldview, The Washington Post reviewed hours of radio interviews that Bannon conducted while hosting a Breitbart radio talk show, as well as speeches and interviews he has given since 2014.
Bannon did not respond to a request for comment made on Tuesday afternoon.
In his public statements, Bannon espoused a basic idea that Trump would later seize as the centerpiece of his campaign.
While others saw the world rebounding from the financial crisis of 2008, Bannon just saw it becoming more divided by class.
The elites that had caused the crisis — or, at least, failed to stop it — were now rising higher. Everyone else was being left behind.
“The middle class, the working men and women in the world . . . are just tired of being dictated to by what we call the party of Davos,” Bannon said in a 2014 speech to a conference at the Vatican in a recording obtained by BuzzFeed. Davos is a Swiss ski resort that hosts an annual conclave of wealthy and powerful people.
Bannon blamed both major political parties for this system and set out to force his ideas on an unwilling Republican leadership.
What he wanted, he said again and again, was “sovereignty.” Both in the United States and in its traditional allies in Western Europe.
On one of the first Breitbart Radio shows, in early November 2015, Bannon praised the growing movement in Britain to exit the European Union. He said that the British had joined the E.U. merely as a trading federation but that it had grown into a force that had stripped Britons of sovereignty “in every aspect important to their own life.”
Bannon has been supportive of similar movements in other European countries to pull out of the union. Trump has echoed those sentiments in his first few days as president. It is a remarkable shift in U.S. policy: After decades of building multinational alliances as a guarantee of peace, now the White House has indicated it may undermine them.
Bannon, in his 2014 speech at the Vatican, cast this as a return to a better past.
“I think strong countries and strong nationalist movements in countries make strong neighbors,” Bannon said. “And that is really the building blocks that built Western Europe and the United States, and I think it’s what can see us forward.”
Siddiqui Decl. -- Exhibit 5

In the caseCofatshee U1:n1it7e-dcvS-ta0t0e1s,1B6a-nLnMonB-wTaCs BskepDtioccaluomf emnutlt6in1a-t5ionFalilterdad0e2p/a0c8ts/1, s7ayiPngatgheat4thoefy6cePdaedgecoIDnt#ro4l.8I0n a radio
interview in November 2015, Sen. Jeff Sessions (R­Ala.) agreed with Bannon.
“We shouldn’t be tying ourselves down like Gulliver in the land of Lilliputians with so many strings a guy can’t move,” said Sessions, who is now Trump’s nominee to become attorney general. He was referring to a scene from the novel “Gulliver’s Travels” in which the hero is tied down by a race of tiny men. “That is where we are heading, and it’s not necessary.”
One solution put forward by Bannon: the United States should pursue bilateral trade agreements — one country at a time — rather than multi­country agreements such as the Trans­Pacific Partnership supported by Obama.
He suggested as much to Trump himself, when the candidate appeared on his show in November 2015.
“Trump brings [a deal] back to the Senate and gets his bilateral trade deal with Taiwan or with Japan approved by two­thirds of the Senate,” Bannon said. “And you have to go argue, ‘Hey, this is why it’s a good deal.’ And that’s the way the Founders wanted it.”
On a March 2016 episode, Bannon said that restoring sovereignty meant reducing immigration. In his radio shows, he criticized the federal H­1B visa programs that permit U.S. companies to fill technical positions with workers from overseas.
The “progressive plutocrats in Silicon Valley,” Bannon said, want unlimited ability to go around the world and bring people back to the United States. “Engineering schools,” Bannon said, “are all full of people from South Asia, and East Asia. . . . They’ve come in here to take these jobs.” Meanwhile, Bannon said, American students “can’t get engineering degrees; they can’t get into these graduate schools because they are all foreign students. When they come out, they can’t get a job.”
“Don’t we have a problem with legal immigration?” asked Bannon repeatedly.
“Twenty percent of this country is immigrants. Is that not the beating heart of this problem?” he said, meaning the problem of native­born Americans being unable to find jobs and rising wages.
In another show, Bannon had complained to Trump that so many Silicon Valley chief executives were South Asian or Asian. This was a rare time when Trump — normally receptive to Bannon’s ideas on­air — pushed back. “I still want people to come in,” Trump said. “But I want them to go through the process.”
So far, Trump has made no changes to the high­skilled visa program. This week, White House press secretary Sean Spicer said that the Trump administration may reexamine the program.
Even as Bannon was calling for a general retreat from multinational alliances, however, he was warning of the need for a new alliance — involving only a subset of the world’s countries.
The “Judeo­Christian West” was at war, he said, but didn’t seem to understand it yet.
Siddiqui Decl. -- Exhibit 5

“There is a Cmaasjoer w1:a1r7b-rcevw-i0n0g1, a16w-aLrMthBa-t’TsCalBreadDyogcloubmale,”nBt a6n1n-o5n sFaiidleadt 0th2e/0V8at/1ic7an iPna2g0e145, aotfa6tiPmaegwehIeDn#th4e8I1slamic
State was gaining territory. “Every day that we refuse to look at this as what it is — and the scale of it, and really the viciousness of it — will be a day where you will rue that we didn’t act.”
Bannon has given few details about the mechanics of the war he thinks the West should fight. But he has been clear that it is urgent enough to take priority over other rivalries and worries.
In his talk at the Vatican, Bannon was asked about Russian President Vladimir Putin. Bannon’s answer was two­sided.
“I think that Putin and his cronies are really a kleptocracy, that are really an imperialist power that want to expand,” he said. But, Bannon said, there were bigger concerns than Russia — and there was something to admire in Putin’s call for more traditional values.

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“However, I really believe that in this current environment, where you’re facing a potential new caliphate that is very aggressive that is really a situation — I’m not saying we can put [Russia] on a back burner — but I think we have to deal with first things first,” Bannon said.

If Bannon succeeds, Bannon’s own comparison, to England’s Thomas Cromwell, might be apt — to a point.

“The analogy — if it’s going to work — is that Bannon has his own agenda, which he will try to use Trump for, and will try to exploit the power that Trump has given him, without his master always noticing,” said Diarmaid MacCulloch, a professor of history at England’s Oxford University.

But Cromwell was later executed, after Henry VIII turned against him. For a man like that, MacCulloch said, power is always tenuous: “It’s very much dependent on the favor of the king.”

Read more:

Questions multiply over Bannon’s role in Trump administration

How Bannon flattered and coaxed Trump on policies key to the alt­right

Trump agrees with Bannon’s assessment that the media is the ‘opposition party’

Siddiqui Decl. -- Exhibit 5

Case 1:17-cv-00116-LMB-TCB Document 61-5 Filed 02/08/17 Page 6 of 6 PageID# 482 Frances Stead Sellers is a senior writer at The Washington Post, currently covering the 2016 campaign. She was editor of the Style section from 2011-2014 and prior to that ran the newsroom’s health, science and environmental coverage.  Follow @FrancesSSellers
David A. Fahrenthold covers the 2016 presidential campaign for The Washington Post. He has been at the Post since 2000, and previously covered Congress, the federal bureaucracy, the environment, and the D.C. police.  Follow @Fahrenthold

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Siddiqui Decl. -- Exhibit 5

2/7/2017 Case 1:17-cBvro-d0y0F1ile1E6x-cLluMsivBe:-PTreCsidBent TDruomcpuSmayes Pnetrs6e1cu-t6ed CFhriisletiadns0W2il/l0B8e /G1iv7en PPrioarigtyeAs1Roeffug2eePs |aCgBeNI.cDom# 483
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Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees

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Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees

01­27­2017 David Brody
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In an exclusive interview with The Brody File, President Donald Trump says persecuted Christians will be given priority when it comes to applying for refugee status in the United States. “We are going to help them,” President Trump tells CBN News. “They’ve been horribly treated. Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the
United States? If you were a Muslim you could come iSni,dbdutiiqfuyoiuDweecrle.a-C- hErixsthiainb,iitt w6as almost
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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.”
The Brody File conducted the interview Friday morning in the Blue Room at The White House. More newsworthy clips are coming soon. The entire interview can be seen this Sunday at 11pm on Freeform (cable TV, formerly ABC Family Channel) during our special CBN News show. This is just the third interview President Trump has done from The White House and it will be the only interview that will air in its’ entirety this weekend.
MANDATORY VIDEO AND COURTESY: CBN NEWS/THE BRODY FILE
DAVID BRODY: “Persecuted Christians, we’ve talked about this, the refugees overseas. The refugee program, or the refugee changes you’re looking to make. As it relates to persecuted Christians, do you see them as kind of a priority here?”
PRESIDENT TRUMP: “Yes.”
DAVID BRODY: “You do?”
PRESIDENT TRUMP: “They’ve been horribly treated. Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a 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.”

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Steve

7 days ago

Christian persecution is running at about 100,000 deaths per month. I'm so glad that our President is cognizant of this and willing to alleviate some of the pain and suffering of these people.

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0

Israel Friend Di

8 days ago

Our President Donald Trump is doing his Christian duty by banning terrorists Muslims and illegals into the USA that want to promote Sharia laws upon us and terrorize this
country. Isis and Hamas chop off the heads of their ownSpeiodpdleiiqf thueiy aDreefcouln.d-t-o Exhibit 6
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Fěbřųǻřỳ 1, 2017 · 3:37 ǺM ĚȚ
ŘǾŇ ĚĿVİŇĢ

President Trump shakes hands with Judge Neil Gorsuch after nominating him to the U.S. Supreme Court during a ceremony in the East Room of the White House on Tuesday.
Chip Somodevilla/Getty Images

After a dozen tumultuous days in the White House, President Trump on Tuesday night found a way to unite his party, delight his most ardent supporters and change the storyline on his nascent presidency in a single stroke.

It wasn't magic that did it, it was the choice of Neil Gorsuch to serve on the U.S. Supreme Court.

Siddiqui Decl. -- Exhibit 7

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PǾĿİŤİČȘ Ẅħǿ İș Ňěįŀ Ģǿřșųčħ, Țřųmp'ș Fįřșț Pįčķ Fǿř Țħě Șųpřěmě Čǿųřț?
Gorsuch is now a judge on the U.S. Court of Appeals for the 10th Circuit Court, which sits in Colorado, his home state. Gorsuch began his service at that powerful level of the federal judiciary in 2006, at age 39.
Well­regarded even then, Gorsuch won Senate approval on a voice vote. He has since emerged as a leading candidate for promotion to the high court. Indeed, he might have been chosen by any of the more conventional Republican presidential candidates in 2016.
But the night of his anointing began with the key light on the president, who strode into the East Room by himself and mounted a podium to the lectern.
"I took the task of this nomination very seriously," Trump intoned. "I have selected an individual whose qualities define — really, and I mean closely define — what we're looking for. Judge Gorsuch has outstanding legal skills, a brilliant mind, tremendous discipline, and has earned bipartisan support."
What Might President Trump's Nomination Mean For The Supreme Court? |...

Siddiqui Decl. -- Exhibit 7

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YouTube
He had been on a list of 21 names Trump said had been suggested to him by conservative think tanks and advocacy groups determined to find a suitable successor to the late Antonin Scalia.
It was impossible to clone Scalia, the anchor of the court's conservative wing for a generation. But Trump seemed resolved to come as close as he could, and that led him to the man from Colorado.
"Months ago as a candidate, I publicly presented a list of brilliant and accomplished people to the American electorate and pledged to make my choice from among that list," Trump said. "Millions of voters said this was the single most important issue to them when they voted for me for president."
PǾĿİŤİČȘ Țřųmp Mǻđě Ħįș Șųpřěmě Čǿųřț Pįčķ. Ňǿẅ Ẅħǻț? 5 Șțěpș Țǿ Čǿňfįřmǻțįǿň

Indeed, exit polls showed that filling Scalia's seat was "an important factor" for 48 percent of those who voted and the most important factor for another 21 percent. Among those who said it was the most important, a clear majority voted for Trump.
"I am a man of my word. I will do as I say, something that the American people have been asking for from Washington for a very, very long time," Trump said Tuesday night.
It could be said that the new president has been doing what he had promised since his Inauguration Day on a range of other issues, and none of his other actions have engendered the broad­based positive reaction that greeted Gorsuch.
PǾĿİŤİČȘ Đǿňǻŀđ Țřųmp'ș Șųpřěmě Čǿųřț Pįčķ — İň 100 Ẅǿřđș Ǻňđ 9 Țẅěěțș

Siddiqui Decl. -- Exhibit 7

http://www.npr.org/2017/02/01/512761458/gorsuch­pick­for­top­court­fulfills­trump­campaign­pledge­confirms­democrats­fea

3/13

2/5/2017 Case 1:17-cv-00N1e1il G6o-rLsuMchBP-icTkCFoBr TopDCoocurut Fmulefillns tTr6um1p-7CamFpailigendPl0ed2g/e0, 8Co/1nf7irmsPDeamgoecra4ts'oFfea7rsP: NaPgReID# 488 In fact, the announcement had originally been scheduled for Thursday night, and it appeared to have been moved up to counter the rocky rollout of the president's new restrictions on refugees and others arriving to the U.S. from seven predominantly Muslim countries. That set of moves, which culminated in the firing of Acting Attorney General Sally Yates on Monday night, had dominated the news since Friday.
But as of late Tuesday afternoon, that storm seemed to subside, if only long enough to make room for the dramatic announcement at the White House. Instead of bringing out his nominee in a daytime visit to the Rose Garden, Trump scheduled a prime­time event and created added suspense by refusing to confirm Gorsuch's selection before that event.
It was even reported that a "runner­up" candidate, Judge Thomas Hardiman of the 3rd U.S. Circuit Court of Appeals, had been summoned to Washington and might be present at the White House event Tuesday night. The notion conjured up images of The Apprentice or other reality shows produced by Trump where contestants are kept in suspense onstage until a final winner is named.
In the end, the actual event was not nearly so dramatic or unconventional. A gathering of Republican senators, lawyers and other denizens of the judicial system filled the East Room and provided hearty applause.
Among those praising the choice of Gorsuch was Sen. Mitch McConnell of Kentucky, the Senate majority leader who kept the Scalia seat vacant last year by refusing to process President Barack Obama's nomination of Judge Merrick Garland. McConnell said the voters of November 2016 should have a say, and stuck by that even when it appeared those voters would choose Hillary Clinton to succeed Obama.
When Trump won the Electoral College, McConnell's gamble paid off. He has since made it clear he will "guarantee" Trump's nominee is not only considered but confirmed. He has only 52 Republican votes toward the 60 needed to cut off debate on a nominee, but he can either recruit eight Democrats or change the rules to make the filibuster unavailable in this instance.

Siddiqui Decl. -- Exhibit 7

http://www.npr.org/2017/02/01/512761458/gorsuch­pick­for­top­court­fulfills­trump­campaign­pledge­confirms­democrats­fea

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2/5/2017 Case 1:17-cv-00N1e1il G6o-rLsuMchBP-icTkCFoBr TopDCoocurut Fmulefillns tTr6um1p-7CamFpailigendPl0ed2g/e0, 8Co/1nf7irmsPDeamgoecra5ts'oFfea7rsP: NaPgReID# 489 Recruiting that much Democratic support might seem difficult at this stage, with the partisan fervor still running high. But 10 of the Senate's Democrats who face re­ election struggles in 2018 are in states that were won by Trump in 2016. A filibuster of Gorsuch might be costly to their prospects.

On the other hand, every Democrat in Congress must deal with a high level of anger among core constituents, who are demanding relentless resistance to virtually every move Trump makes.

So the warm feelings in the East Room at announcement time had only begun to fade when the battle lines began forming on cable TV, in social media and countless emails.

The White House called Gorsuch "impossible to oppose" and produced a list of supporters from Colorado and conservative circles, studded with a few Democrats who have at least praised Gorsuch in the past.

But there was plenty of pushback from Democrats in Congress and various advocacy groups. Progressives, in particular, took issue with Gorsuch's well­known views on "religious liberty" and his willingness to let employers refuse to provide birth control services under Obamacare. Also noted was his devotion to the rights of gun owners, as well as those of campaign donors facing strictures under campaign finance reform.

Gorsuch also has been controversial for questioning the long­standing practice of court deference to the interpretive expertise of administrative agencies when laws leave legislators' intentions ambiguous.

Some Democrats also found in Gorsuch a symbol of Trump's overall approach to governing and his alleged indifference to the interests of certain constituencies.

Sen. Tammy Baldwin of Wisconsin, a state won by Trump, released a statement that said, in part: "With this Supreme Court nomination, President Trump has made it clear he has no interest in being a President for all Americans and that he is intent on creating more division in our country."

She predicted he would not find much bipartisan support, a suggestion seconded by

more senior Democrats such as their Senate leader, Charles Schumer of New York,

Siddiqui Decl. -- Exhibit 7

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2/5/2017 Case 1:17-cv-00N1e1il G6o-rLsuMchBP-icTkCFoBr TopDCoocurut Fmulefillns tTr6um1p-7CamFpailigendPl0ed2g/e0, 8Co/1nf7irmsPDeamgoecra6ts'oFfea7rsP: NaPgReID# 490 and Judiciary Committee ranking Democrat Dianne Feinstein of California.
Many of the Democrats couched their critiques in references to the lack of consideration of the Garland nomination last year. One was Pat Leahy of Vermont, the former chairman of the Judiciary Committee:
"Before Senate Republicans waged the unprecedented blockade of Judge Garland's nomination to the Supreme Court last year, the Senate took seriously its constitutional duty to provide advice and consent on nominees to the highest court in the land. But Republicans abdicated the Senate's constitutional role by choosing politically­charged obstruction, so that a president [Trump] who lost the popular vote could nominate extreme candidates to the Supreme Court."
The Garland history is indeed a bitter pill for Democrats to swallow at this moment. But they also struggle with the dilemma that has always plagued Senate minority parties when presented with an adversarial president's nominee to the court. They can resist, in all likelihood losing and looking weak in the process, or they can stand down and sidestep the fight, risking the rage of activists in their support base who are most incensed about Trump's court choice — or about Trump in general.
There was one sense in which Gorsuch did not seem to fit the profile Trump had initially sketched for his Supreme Court pick. Trump had wanted to move in a more unconventional or anti­establishment direction, but on Tuesday night he was touting his man's exceptional Ivy League pedigree.
In addition to degrees from Columbia University and Harvard Law School (both with honors, as Trump himself stressed), Gorsuch earned a doctorate from Oxford University before clerking for Supreme Court Justices Byron White and Anthony Kennedy. (If confirmed, Gorsuch will be the first former clerk to share the Supreme Court bench with the justice he once served.)
Gorsuch thanked previous mentors Kennedy and White in his remarks Tuesday night. He also described a bit of his own judicial philosophy, saying that "in our legal order it is for Congress and not the courts to write new laws."

Siddiqui Decl. -- Exhibit 7

http://www.npr.org/2017/02/01/512761458/gorsuch­pick­for­top­court­fulfills­trump­campaign­pledge­confirms­democrats­fea

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2/5/2017 Case 1:17-cv-00N1e1il G6o-rLsuMchBP-icTkCFoBr TopDCoocurut Fmulefillns tTr6um1p-7CamFpailigendPl0ed2g/e0, 8Co/1nf7irmsPDeamgoecra7ts'oFfea7rsP: NaPgReID# 491 "It is the role of judges to apply, not alter, the work of the people's representatives," he added. "A judge who likes every outcome he reaches is very likely a bad judge. [W]hen we judges don our robes, it doesn't make us any smarter, but it does serve as a reminder of what's expected of us: impartiality and independence, collegiality and courage." Correction
Feb. 1, 2017 A previous version of this story incorrectly referred to someone as Justice Byron York when Justice Byron White was meant.
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İŤŲŇĚȘ ĢǾǾĢĿĚ PĿǺỲ MŲȘİČ
ȘŤİŤČĦĚŘ ŘȘȘ
Mǿřě Șțǿřįěș Fřǿm ŇPŘ

Siddiqui Decl. -- Exhibit 7

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https://nyti.ms/2jOn1Hg
POLITICS
Trump’s Talk About Muslims Led Acting Attorney General to Defy Ban
By ALAN BLINDER and MATT APUZZO JAN. 31, 2017 ATLANTA — As a young prosecutor in the late 1990s, Sally Q. Yates sat at a conference table with a former sheriff and began picking away at his story. With an F.B.I. agent watching, Ms. Yates soon had the lawman in knots about a deposition.
“I watched him as she broke him down, and he confessed that he had lied under oath,” the agent, Oliver G. Halle, now retired, recalled on Tuesday. “She can be very disarming, but underneath that disarming appearance is a woman who knows how to fight.”
As acting attorney general, Ms. Yates picked the fight of her life on Monday when she ordered the Justice Department not to defend President Trump’s executive order blocking refugees and restricting immigration to the United States. Ms. Yates became convinced, based on the president’s own statements, that he had intended to unlawfully single out Muslims, senior officials said.
“We have comments from the president about what this is supposed to do,” Ms. Yates said in one meeting on Monday, according to two people involved in the discussions. She later added, “The intent was clear from the face of it.”
Ms. Yates, 56, was swiftly fired. Before she even finished packing up her office, she had become a hero to many Democrats, the face of a simmering resistance inside the government to Mr. Trump’s administration.

Siddiqui Decl. -- Exhibit 8

https://www.nytimes.com/2017/01/31/us/politics/sally­yates­trump­immigration­ban.html

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Her firing was a politically divisive turn in a career that had, until now, earned her bipartisan praise.
“She will be a hero of the American people, a hero of what’s right,” Senator Johnny Isakson, Republican of Georgia, said in 2015 at Ms. Yates’s confirmation hearing. “She’ll call them like she sees them, and she will be fair, and she will be just.”
While Ms. Yates was a reliably liberal voice in the Justice Department on issues of civil rights, criminal justice and sentencing, she worked her way up as a career prosecutor in Atlanta under political appointees from both parties. A native Georgian, she led prosecutions against some of the highest profile defendants in Atlanta, including former Mayor Bill Campbell, a Democrat who was accused of racketeering and tax fraud, and Eric Robert Rudolph, who set bombs at a park during the 1996 Olympic Games, a gay nightclub and two Southern abortion clinics.
She also took on the leaders of an Atlanta suburb who refused to allow construction of a mosque. The Justice Department sued, and the city reversed itself. “Religious freedom requires that local government decisions impacting the exercise of that freedom be free of discrimination,” Ms. Yates said at the time.
When Ms. Yates, who declined to comment on Tuesday, became deputy attorney general in 2015, she told colleagues that she had no intention of merely being a caretaker. “We’re going to run through the tape,” she often said.
In Washington, her outgoing personality made her a counterpoint to her more reserved boss, Attorney General Loretta E. Lynch. At times that made Ms. Yates the face of the Justice Department in ways that caused tension with Ms. Lynch’s staff. Ms. Yates was regarded as professionally ambitious, though she has told friends that she has no interest in running for political office.
Last year, Ms. Yates and Ms. Lynch earned the ire of Democrats — including many in the department — for not intervening to prohibit the F.B.I. director, James B. Comey, from sending a letter to Congress in the final days of the presidential campaign. The letter raised the prospect of new and potentially damaging evidence against Hillary Clinton related to an investigation that had been closed. Nothing

Siddiqui Decl. -- Exhibit 8

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2/5/2017 Case 1:17-cv-0011T6ru-mLpM’s BTa-lkTACboBut MDusolimcsuLmedeAncttin6g1A-tt8orneFy Gileendera0l 2to/D0e8fy/1B7an ­ TPhaegNeew3YoorkfT4imPesageID# 494
came of the new evidence, and Mrs. Clinton’s team says the letter cost her the presidency. Her supporters argued that Justice Department leaders were too timid to stand up to Mr. Comey.
Mr. Trump’s executive order prompted a new challenge for Ms. Yates, who was serving until the Senate confirmed a new attorney general. The Justice Department’s Office of Legal Counsel had reviewed and signed off on the order, but Ms. Yates believed that the department had to also consider the president’s intent, which she said appeared aimed at singling out people based on religion.
Mr. Trump had promised to do as much. His campaign website still calls for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” After the decision was announced, one of his advisers, Rudolph W. Giuliani, the former mayor of New York, said in an interview that Mr. Trump had wanted a Muslim ban but needed “the right way to do it legally.” Mr. Trump then said in an interview with the Christian Broadcasting Network that Christian refugees would be given priority for entry visas to the United States.
In meetings on Monday, some in the department said it should defend the order, as it normally does. Others disagreed.
Prominent lawyers echoed that debate on Tuesday. Some former Justice Department officials, like Martin Lederman, praised Ms. Yates’s decision. Ms. Lynch said “her courageous leadership embodies the highest traditions of the Department of Justice.”
But others, like Jack Goldsmith, said she should have either defended the president’s order or resigned. George J. Terwilliger III, a former deputy attorney general who, like Ms. Yates, served briefly as acting attorney general, said that Ms. Yates had made herself and the Justice Department “look blatantly political.”
Ms. Yates considered resigning, four current and former Justice Department officials said, but she concluded that doing so would only defer a difficult decision to a temporary successor.

Siddiqui Decl. -- Exhibit 8

https://www.nytimes.com/2017/01/31/us/politics/sally­yates­trump­immigration­ban.html

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2/5/2017 Case 1:17-cv-0011T6ru-mLpM’s BTa-lkTACboBut MDusolimcsuLmedeAncttin6g1A-tt8orneFy Gileendera0l 2to/D0e8fy/1B7an ­ TPhaegNeew4YoorkfT4imPesageID# 495
That dilemma was foreshadowed two years ago in her confirmation hearing, when Senator Jeff Sessions, the Alabama Republican who is poised to become the next attorney general, questioned whether Ms. Yates had the independent streak needed to be the Justice Department’s second in command.
“If the views the president wants to execute are unlawful, should the attorney general or the deputy attorney general say no?” Mr. Sessions asked.
“I believe the attorney general or deputy attorney general has an obligation to follow the law and Constitution and give their independent legal advice to the president,” Ms. Yates replied.
Shortly after 9 p.m. on Monday, roughly three hours after she ordered department lawyers not to defend the president’s position, a White House courier arrived with a copy of her dismissal letter.
“Dear Deputy Attorney General Yates,” said the letter, which was signed by John DeStefano, an assistant to Mr. Trump. “I am informing you that the president has removed you from the office of Deputy Attorney General of the United States.”
Alan Blinder reported from Atlanta, and Matt Apuzzo from Washington.
Follow The New York Times’s politics and Washington coverage on Facebook and Twitter, and sign up for the First Draft politics newsletter.
A version of this article appears in print on February 1, 2017, on Page A15 of the New York edition with the headline: Trump’s Talk on Muslims Led Acting Attorney General to Defy Immigration Order.

Truth. It’ hard to find. ut eaier with 1000+ journalit looking. Sucrie to The Time. aic $2.75/week illed a $143 ever ear Get aic aic Digital Acce include:

Siddiqui Decl. -- Exhibit 8

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Case 1:17-cv-00116-LMB-TCB Document 61-9 Filed 02/08/17 Page 1 of 2 PageID# 496

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Document Message from Sally Yates to Justice Department lawyers before she was fired
JAN. 30, 2017
Acting Atty. Gen. Sally Yates ordered Justice Department attorneys not to defend President Trump’s executive order on travel and refugees in court. Hours later, Trump fired her. Here is the memo she wrote.

Siddiqui Decl. -- Exhibit 9

Case 1:17-cv-00116-LMB-TCB Document 61-9 Filed 02/08/17 Page 2 of 2 PageID# 497
On January 27, 2017, the President signed an Executive Order regarding immigrants and refugees from certain Muslim-majority countries. The order has now been challenged in a number of jurisdictions. As the Acting Attorney General, it is my ultimate responsibility to determine the position of the Department of Justice in these actions.
My role is different from that of the Office of Legal Counsel (OLC), which, through administrations of both parties, has reviewed Executive Orders for form and legality before they are issued. OLC’s review is limited to the narrow question of whether, in OLC’s view, a proposed Executive Order is lawful on its face and properly drafted. Its review does not take account of statements made by an administration or it surrogates close in time to the issuance of an Executive Order that may bear on the order’s purpose. And importantly, it does not address whether any policy choice embodied in an Executive Order is wise or just.
Similarly, in litigation, DOJ Civil Division lawyers are charged with advancing reasonable legal arguments that can be made supporting an Executive Order. But my role as leader of this institution is different and broader. My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right. At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful.
Consequently, for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.
Siddiqui Decl. -- Exhibit 9

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https://nyti.ms/2jOiH8q
POLITICS
Trump Fires Acting Attorney General Who Defied Him
By MICHAEL D. SHEAR, MARK LANDLER, MATT APUZZO and ERIC LICHTBLAU JAN. 30,
2017
WASHINGTON — President Trump fired his acting attorney general on Monday night, removing her as the nation’s top law enforcement officer after she defiantly refused to defend his executive order closing the nation’s borders to refugees and people from predominantly Muslim countries.
In an escalating crisis for his 10­day­old administration, the president declared in a statement that Sally Q. Yates, who had served as deputy attorney general under President Barack Obama, had betrayed the administration by announcing that Justice Department lawyers would not defend Mr. Trump’s order against legal challenges.
The president replaced Ms. Yates with Dana J. Boente, the United States attorney for the Eastern District of Virginia, saying that he would serve as attorney general until Congress acts to confirm Senator Jeff Sessions of Alabama. In his first act in his new role, Mr. Boente announced that he was rescinding Ms. Yates’s order.
Monday’s events have transformed the confirmation of Mr. Sessions into a referendum on Mr. Trump’s immigration order. Action in the Senate could come as early as Tuesday.
Ms. Yates’s order was a remarkable rebuke by a government official to a sitting president, and it recalled the so­called Saturday Night Massacre in 1973, when

Siddiqui Decl. -- Exhibit 10

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President Richard M. Nixon fired his attorney general and deputy attorney general for refusing to dismiss the special prosecutor in the Watergate case.
Mr. Boente was sworn in at 9 p.m., according to White House officials, who did not provide details about who performed the ceremony. In a statement, Mr. Boente pledged to “defend and enforce the laws of our country.”
At 9:15 p.m., Ms. Yates received a hand­delivered letter at the Justice Department that informed her that she was fired. Signed by John DeStefano, one of Mr. Trump’s White House aides, the letter informed Ms. Yates that “the president has removed you from the office of Deputy Attorney General of the United States.”
Two minutes later, the White House officials lashed out at Ms. Yates in a statement issued by Sean Spicer, the White House press secretary.
“Ms. Yates is an Obama administration appointee who is weak on borders and very weak on illegal immigration,” the statement said.
The firing of Ms. Yates came at the end of a turbulent three days that began on Friday with Mr. Trump’s signing of his executive order. The action stranded travelers around the world, led to protests around the country and created alarm inside the bureaucracy.
Ms. Yates, like other senior government officials, was caught by surprise by the executive order and agonized over the weekend about how to respond, two Justice Department officials involved in the weekend deliberations said. Ms. Yates considered resigning but she told colleagues she did not want to leave it to her successor to face the same dilemma.
By Monday afternoon, Ms. Yates added to a deepening sense of anxiety in the nation’s capital by publicly confronting the president with a stinging challenge to his authority, laying bare a deep divide at the Justice Department, within the diplomatic corps and elsewhere in the government over the wisdom of his order.
“At present, I am not convinced that the defense of the executive order is consistent with these responsibilities, nor am I convinced that the executive order is lawful,” Ms. Yates wrote in a letter to Justice Department lawyers.

Siddiqui Decl. -- Exhibit 10

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Mr. Trump’s senior aides huddled together in the West Wing to determine what to do.
They decided quickly that her insubordination could not stand, according to an administration official familiar with the deliberations. Among the chief concerns was whether Mr. Sessions could be confirmed quickly by the Senate.
After Reince Priebus, the White House chief of staff, received reassurances from Senator Mitch McConnell of Kentucky, the Republican leader, that the confirmation was on track, aides took their recommendation to Mr. Trump in the White House residence.
The president decided quickly: She has to go, he told them.
The official statement from Mr. Spicer accused Ms. Yates of failing to fulfill her duty to defend a “legal order designed to protect the citizens of the United States” that had been approved by the Justice Department’s Office of Legal Counsel.
“It is time to get serious about protecting our country,” Mr. Spicer said in the statement. He accused Democrats of holding up the confirmation of Mr. Sessions for political reasons. “Calling for tougher vetting for individuals traveling from seven dangerous places is not extreme. It is reasonable and necessary to protect our country.”
Former Justice Department officials said the president’s action would send a deep shudder through an agency that was already on edge as officials anticipated an ideological overhaul once Mr. Sessions takes over. One former senior official said that department lawyers would be unnerved by the firing.
Democrats, meanwhile, hailed Ms. Yates as a principled defender of what she thought was right. Senator Chuck Schumer of New York, the Democratic leader, said in a statement that the “attorney general should be loyal and pledge fidelity to the law, not the White House. The fact that this administration doesn’t understand that is chilling.”
Mr. Boente has told the White House that he is willing to sign off on Mr. Trump’s executive order on refugees and immigration, according to Joshua Stueve, a

Siddiqui Decl. -- Exhibit 10

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spokesman for the United States attorney’s office in Alexandria, Va., where Mr. Boente has served as the top prosecutor since 2015.
Mr. Boente, who has been a prosecutor with the Justice Department for 31 years, had no hesitation about accepting the acting attorney general’s job given his “seniority and loyalty” to the department, Mr. Stueve said in a telephone interview on Monday night.
As acting attorney general, Ms. Yates was the only person at the Justice Department authorized to sign applications for foreign surveillance warrants. Administrations of both parties have interpreted surveillance laws as requiring foreign surveillance warrants be signed only by Senate­confirmed Justice Department officials. Mr. Boente was Senate­confirmed as United States attorney and, though the situation is unprecedented, the White House said he was authorized to sign the warrants.
Ms. Yates’s decision had effectively overruled a finding by the Justice Department’s Office of Legal Counsel, which had already approved the executive order “with respect to form and legality.”
Ms. Yates said her determination in deciding not to defend the order was broader, however, and included questions not only about the order’s lawfulness, but also whether it was a “wise or just” policy. She also alluded to unspecified statements the White House had made before signing the order, which she factored into her review.
Mr. Trump initially responded to the letter with a post on Twitter at 7:45 p.m., complaining that the Senate’s delay in confirming his cabinet nominees had resulted in leaving Ms. Yates in place.

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The Democrats are delaying my cabinet picks for purely political reasons. They have nothing going but to obstruct. Now have an Obama A.G.
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Siddiqui Decl. -- Exhibit 10

https://www.nytimes.com/2017/01/30/us/politics/trump­immigration­ban­memo.html

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28,243

128,144

The 1973 “Saturday Night Massacre” led to a constitutional crisis that ended when Robert H. Bork, the solicitor general, acceded to Mr. Nixon’s order and fired Archibald Cox, the special prosecutor.
Ms. Yates, a career prosecutor, is different because she is a holdover from the Obama administration. She agreed to Mr. Trump’s request to stay on as acting attorney general until Mr. Sessions is confirmed to be attorney general.
Reporting was contributed by David E. Sanger, Ron Nixon, Michael R. Gordon and Eric Schmitt in Washington.
Follow The New York Times’s politics and Washington coverage on Facebook and Twitter, and sign up for the First Draft politics newsletter.
A version of this article appears in print on January 31, 2017, on Page A1 of the New York edition with the headline: Trump Fires Justice Chief Who Defied Him.

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Siddiqui Decl. -- Exhibit 10

https://www.nytimes.com/2017/01/30/us/politics/trump­immigration­ban­memo.html

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Case 1:17-cv-00116-LMB-TCB Document 61-11 Filed 02/08/17 Page 1 of 8 PageID# 503

MNU



RFUG
RAKING NW: Full Text of Draft Dient Channel Memo on Trump Refugee and Via Order
 enjamin Wittes, usan Hennesse, Quinta Jurecic Monda, Januar 30, 2017, 9:25 AM

Omphalo: Middle at Con ict in Perpective

Conider thi a major ureaucratic upriing on the part of career foreign ervice of cer againt the Preident on hi executive order on refugee.

Numerou Foreign ervice of cer and other diplomat have drafted a dient memo expreing oppoition to Preident Donald Trump’ executive order anning refugee and immigrant from Iran, Iraq, Lia, omalia, udan, ria, and Yemen from entering the United tate. AC reported thi morning on the draft, which i likel to e umitted toda.

If you are finding Lawfare useful in these times, please consider making a
contribution to support what we do.

Here’ a cop of the actual draft. We are hearing that literall hundred of foreign ervice of cer are planning to e part to the dient memo; it’ till unclear exactl how man. We have redacted all name and peronall identi ale information from thi document.

To print the document, click the "Original Document" link to open the original PDF. At thi time it i not poile to print the document with annotation.

Siddiqui Decl. -- Exhibit 11

Case 1:17-cv-00116-LMB-TCB Document 61-11 Filed 02/08/17 Page 2 of 8 PageID# 504
The tate Department’ Dient Channel i a mechanim for emploee to con dentiall expre polic diagreement, created in 1971 a a repone to concern within the Department over the government’ handling of the Vietnam War. Author of a memo umitted through the Channel, which i open to all regular emploee of the tate Department and UAID, ma not e uject to an penalt or diciplinar action in repone. Once a memo i umitted, the ecretar of tate’ Polic Planning taff mut acknowledge it receipt within two working da and will uuall ditriute it to the ecretar of tate, the Deput ecretar of tate, the Under ecretar for Political Affair, the Chairperon of the Open Forum, and, if the memo’ author i emploed  UAID,  the head of that agenc a well. Taking into account the wihe of the author, the memo ma alo e ditriuted more roadl within the tate Department and ma e done o anonmoul. The ultimate igni cance of the channel i that memo mut receive a utantive repone within 30-60 working da.
Topics: Omphalos, Refugees Tags: tate Department
enjamin Wittes is editor in chief of Lawfare and a enior Fellow in Governance tudies at the rookings Institution. He is the author of several ooks and is co-chair of the Hoover Institution's Working Group on National ecurit, Technolog, and Law.  @enjaminwittes
Siddiqui Decl. -- Exhibit 11
MOR ARTICL 

Case 1:17-cv-00116-LMBM-OTRC ABRTIDCLocument 61-11 Filed 02/08/17 Page 3 of 8 PageID# 505
usan Hennesse is Managing ditor of Lawfare and General Counsel of the Lawfare Institute. he is a rookings Fellow in National ecurit Law. Prior to joining rookings, Ms. Hennesse was an attorne in the O ce of General Counsel of the National ecurit Agenc. he is a graduate of Harvard Law chool and the Universit of California, Los Angeles.
 @usan_Hennesse
MOR ARTICL 
Quinta Jurecic is a research assistant at the rookings Institution, where she focuses on national securit law and polic. he was previousl a National ecurit Intern at rookings. he graduated from Weslean Universit in 2015, where she completed an honors thesis on moral theories of political leadership and drone warfare under the Oama administration.
 @qjurecic
MOR ARTICL 

RLATD ARTICL
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uzanne Malone Thu, Fe 2, 2017, 4:00 PM
International Fallout from Trump’ Immigration and Refugee Order, U.. Raid Target AQAP in Yemen, Greece-Turke Tenion calate over Coup xtradition
J. Dana tuster Tue, Jan 31, 2017, 10:30 AM
Wh Trump’ Policie Will Increae Terrorim—and Wh Trump Might ene t a a Reult
Daniel man Mon, Jan 30, 2017, 10:44 AM

Litigation Document & Reource Related to Trump xecutive Order
Quinta Jurecic un, Jan 29, 2017, 1:11 PM

Malevolence Tempered  Incompetence: Trump’ Horrifing xecutive Order on Refugee

and Via

Siddiqui Decl. -- Exhibit 11

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Case 1:17-cv-00116-LMB-TCB Document 61-11 Filed 02/08/17 Page 5 of 8 PageID# 507 Siddiqui Decl. -- Exhibit 11

Case 1:17-cv-00116-LMB-TCB Document 61-11 Filed 02/08/17 Page 6 of 8 PageID# 508 Siddiqui Decl. -- Exhibit 11

Case 1:17-cv-00116-LMB-TCB Document 61-11 Filed 02/08/17 Page 7 of 8 PageID# 509 Siddiqui Decl. -- Exhibit 11

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(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.

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https://www.donaldjtrump.com/press­releases/donald­j.­trump­statement­on­preventing­muslim­immigration

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Donald Trump seen calling for Muslim registry in new video despite denials

Billionaire 'never advocated for any registry based on religion,' claims communications head

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Siddiqui Decl. -- Exhibit 13
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Siddiqui Decl. -- Exhibit 13
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Siddiqui Decl. -- Exhibit 13
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 President Trump protests
Siddiqui Decl. -- Exhibit 13
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Case 1:17-cv-00116-LMB-TCB Document 61-14 Filed 02/08/17 Page 1 of 4 PageID# 519
The Fix
Trump says we’ve known his Muslim ban and database plans ‘all along.’ But we still don’t — not really.
By Aaron Blake December 21, 2016
Update: President­elect Trump offered his latest oblique statement about how his administration might register Muslims or ban Muslim immigrants on Wednesday, telling reporters when asked about a Muslim ban or registry, "You've known my plans all along" and adding, "I've been proven to be right. 100 percent correct" in response to attacks in Berlin and Turkey.
It's just the latest opaque comment from Trump on this topic. Last month, we looked at his evolution on the issue after one of his potential attorneys general spoke about instituting some kind of database. That post is below, with the new comments at the bottom.
The idea of a so­called Muslim registry or Muslim database has been back in the news in recent days after a pair of high­ profile Donald Trump supporters rekindled it.
Kansas Secretary of State Kris Kobach — formerly rumored to be a candidate for Trump's attorney general — talked to Reuters on Tuesday about the Trump administration implementing one. By Wednesday, Trump surrogate Carl Higbie cited Japanese American internment camps during World War II as “precedent” for doing such a thing.
But it's worth noting how this idea evolved over the course of Trump's campaign.
What Kobach and Higbie are talking about is actually less far­reaching than the Muslim database that Trump suggested he might support as a candidate. They are talking about a registry for immigrants from Muslim countries — similar to one Kobach helped implement as a staff member in the George W. Bush Justice Department and that was scrapped in 2011 — but Trump at times expressed an openness to a database for all Muslims in the United States.
The idea for both versions is basically that radical Islam poses such a threat that Muslims — irrespective of their potential ties to extremism — should be on some kind of registry so they can be tracked.
Siddiqui Decl. -- Exhibit 14

Trump hasCnaostest1at:e1d7c-cleva-r0ly0e1x1a6ct-lLyMwBha-Tt hCeBfavDoros,caunmdehneth6a1s -e1v4en dFisilpeudte0d2r/e0p8o/r1t7s thPatahgeesu2popfor4tePdatgheeIbDro#ad5e2r0version of
the Muslim database. His campaign released a statement late Thursday stating, "President­elect Trump has never advocated for any registry or system that tracks individuals based on their religion, and to imply otherwise is completely false."
But he has also pointedly declined to rule it out and has at times talked about implementing just such a system.
In other words, as with many policies he might push as president, we just don't know exactly what he'll do — until he steps forward and says it himself. And he has offered plenty of conflicting signals.
So how did we get to this point? And what exactly has Trump said? Let's recap.
A noncommittal start
Almost exactly one year ago, on Nov. 19, 2015, Trump was asked by a Yahoo News reporter what measures he might take when it came to his stated proposal to increase surveillance of Muslims in the United States.
“We’re going to have to do certain things that were frankly unthinkable a year ago,” Trump said. Asked about registering Muslims in a database or noting their religion on IDs, Trump responded: “We’re going to have to look at a lot of things very closely. We’re going to have to look at the mosques. We’re going to have to look very, very carefully.”
Asked the following day again whether he supported a Muslim database, Trump was again oblique: “There should be a lot of systems — beyond databases. I mean, we should have a lot of systems.” Trump then began talking about a border wall.
Leaning in
The MSNBC reporter followed up: “But that’s something your White House would like to implement?”
Trump responded: “I would certainly implement that. Absolutely.”
It wasn't clear whether the “that” he was referring to was a database or “a lot of systems” or a border wall. But the reporter then asked how he would register people, and Trump's responses suggested that he supported a database.
“It would just be good management,” he said. When asked whether they would be required to register, he responded: “They have to be — they have to be. Let me just tell you: The key is people can come to the country, but they have to come legally.”
Trump disputes it — somewhat
Later that same day, Trump disputed the reports saying he had endorsed a Muslim database, but he still didn't say he disagreed with it.
Siddiqui Decl. -- Exhibit 14

Still later tChaatsdeay1,:t1h7o-ucgvh-,0T0r1u1m6p-LagMaBin-TleCftBopeDn othceupmoessnibt i6li1ty-.1A4skeFdiloendF0o2x/0N8e/w1s7ChPanangeel w3hoefth4erPhaegweoIDul#d 5su2p1port a
“full Muslim database,” he said: “Basically the suggestion was made and [is] certainly something we should start thinking about. … But certainly I would want to have a database for the refugees — for the Syrian refugees that are coming in, because nobody knows where they're coming from.”

The database is 'all right' and 'okay'
The following day in Alabama, Trump seemed to lean in more toward some kind of a database, saying it would be “all right” and “okay” but again quibbled with the idea that it was a big deal.
“So the database — I said yeah, that’s all right, fine,” he said. “But they also said the wall, and I said the wall, and I was referring to the wall. But database is okay, and watch list is okay, and surveillance is okay. ... And the biggest story yesterday — the biggest — was 'Trump wants database on Muslims.’ I said, 'What's all happening here?'”
A day later, Trump again left open the possibility. Asked by ABC News if he would rule out a database on all Muslims, he said no, but then shifted to talking about a database just of refugees.
“No, not at all,” he said. “I want a database for the refugees that — if they come into the country. We have no idea who these people are. When the Syrian refugees are going to start pouring into this country, we don't know if they're ISIS, we don't know if it's a Trojan horse.
“And I definitely want a database and other checks and balances. We want to go with watch lists. We want to go with databases. And we have no choice.”
The issue was soon overshadowed by Trump's proposal in December to ban all Muslim immigration — which he may or may not have walked back since then. And in an anti­terrorism speech in June, he made no mention of a database or registry.

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But judging from these comments, it's little surprise that the Trump transition team is looking at some kind of database involving Muslims or Muslim countries. The real question from here is how far they take the idea.

'You've known my plans all along'
In a very brief Q&A session with reporters, this exchange occurred:
QUESTION: [Have the attacks in Berlin and Turkey] caused you to rethink your reevaluate your plans to create a Muslim registry or ban Muslim immigration to the United States?
Siddiqui Decl. -- Exhibit 14

TCRaUsMeP1::Y1o7u-'cvve-k0n0o1w1n6m-LyMpBla-nTsCaBll aloDnogc. uI'mveebneten61p-r1ov4enFtoilebde r0ig2h/0t ­8­/11070 pPearcgeent4coorfre4ctP. ageID# 522
The latter statement is debatable. The former is just not the case.
Aaron Blake is senior political reporter for The Fix.  Follow @aaronblake

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Siddiqui Decl. -- Exhibit 14

Case 1:17-cv-00116-LMB-TCB Document 61-15 Filed 02/08/17 Page 1 of 5 PageID# 523
HOM (/) OUR RANKING PHILOOPHY (/RANKING-FOR-TTR-DCIION/) RANKING MTHODOLOGI (/RANKING-MTHODOLOGI/)
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higher ed industry (/blog/? category=higher+ed+industry)
How Trump' xecutive Order Affect Thouand of International tudent in
the U..

Team CollegeFactual (/blog/?author=55c11d37e4b0615e0875c99c) · January 31, 2017 (/blog/how­trumps­travel­ban­affects­
thousands­of­international­students)
On January 27, President Donald J. Trump issued an executive order that affects thousands of international students currently studying at U.S. colleges and universities.
Siddiqui Decl. -- Exhibit 15 The order banned citizens of seven countries from entering the U.S.

HOW (/blog/hoTwR­ UMP'  trumps­ XCUTIV
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The number of international students in the U.S. has grown tremendously in the past few years, and thousands of students will be affected by this travel ban.
The travel ban prevents students who are citizens of the seven countries mentioned from traveling to and from their country of origin and the United States. Some students have already been detained from re­entering America.

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There may be exceptions made on a case­by­case basis, but for now, these students face extreme uncertainty as to their future. This ban will also no doubt affect the number of new international students who decide to choose the U.S. to pursue their education.
The Numer
Based on 2015 data, there are 23,763 students studying in the U.S.A. who are affected by this travel ban, the majority of whom are from Iran.

Trump recently issued an executive order that bans travel from seven countries. This ban affects thousands of international students currently studying in the U.S.
Jan 31, 2017

www.collegefactual.com
International students from these countries have grown steadily over the past five years.

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So you're thinking about choosing an online college? There are three important factors to consider first: accreditation, reputation, and affordability. Learn how to choose an online school that offers you the best quality for the money.
Jan 26, 2017

Siddiqui Decl. -- Exhibit 15

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www.collegefactual.com

Adults who have decided to take the plunge and go back to school have a lot to think about when it comes to choosing a college. Let this guide help you make the best decision.

Jan 19, 2017

www.collegefactual.com

Of the 23,763 students affected by the travel ban, 15,773 of them are attending higher education institutions offering bachelor degrees or higher. The colleges most likely to be affected include Texas A&M (http://www.collegefactual.com/colleges/texas­a­and­m­university­ college­station/), University of Southern California (http://www.collegefactual.com/colleges/university­of­southern­ california/), and Northeastern University (http://www.collegefactual.com/colleges/northeastern­university/), among others.

$700 Million On The Line...

International students often pay full tuition prices at the colleges in

which they are enrolled. We estimate the economic benefit of having

those students in the U.S. could be as much as $701,802,834 for all

students.

Siddiqui Decl. -- Exhibit 15

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Many worry that there is a stigma surrounding online degrees. However, they can be a very good investment for the right type of student. Learn how to make an online degree work for you.

Jan 10, 2017

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What's the next step for the

We cCaalcsuela1te:1t7h-icsvb-0y0a1s1s6u-mLMinBg -tThCesBe inDtoecrnuamtieonnta6l 1st-u1d5enFtsileadre02/08/17 paying full undergraduate tuition and fees, room and board, books and other typical charges at the 596 different colleges they attend. The calculation is for one year of costs.
The table below shows the colleges that will be most affected.

Page 4 of 5 PthaoguseaIDnd#s 5o2f 6ITT
Tech students who need to find another place to finish their degree?
Nov 8, 2016

www.collegefactual.com
The U.S. states who currently see the most financial gains from international students from the seven banned countries are California, Massachusetts, and Texas. These states could also stand to see the biggest loss if the ban were to be made permanent.

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What happens to thousands of students when the accrediting agency for their school goes out of business?
Sep 23, 2016
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Learn more about our partnership with Student Veterans of America.
Sep 21, 2016

The majority of these students are at pSuibdldiciquuniivDeercsli.ti-e-sEaxnhdibsitu1p5ply

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Data comes from the Department of Homeland Security and is based on the number of F1 and M1 Student Visas granted in the past five years.
Cost estimates come from the Department of Education.

Learn about our partnership with 51offer, a company that helps students successfully apply and attend international colleges and universities.
Aug 22, 2016

This report covered in Bloomberg, the Wall Street Journal, Fortune, Business Insider, MarketWatch, and other media outlets. (http://inside.collegefactual.com/press)
Note we will continue to add data to this story as we are able to collect and analyze it.
Resources:
Full Text of Trumps Executive Order: http://www.cnn.com/2017/01/28/politics/text­of­trump­executive­ order­nation­ban­refugees/index.html (http://www.cnn.com/2017/01/28/politics/text­of­trump­executive­ order­nation­ban­refugees/index.html)
US­bound migrants blocked from flying to JFK airport https://www.theguardian.com/us­news/2017/jan/28/rights­groups­ flooded­with­calls­as­people­fear­re­entry­to­us­will­be­denied (https://www.theguardian.com/us­news/2017/jan/28/rights­groups­ flooded­with­calls­as­people­fear­re­entry­to­us­will­be­denied)
Clemson grad denied re­entry to the U.S. http://www.thetigernews.com/news/recent­clemson­grad­denied­ entry­into­the­u­s­clemson/article_9f4fc0d2­e69a­11e6­9c1b­ 8b3dadf48161.html (http://www.thetigernews.com/news/recent­ clemson­grad­denied­entry­into­the­u­s­clemson/article_9f4fc0d2­ e69a­11e6­9c1b­8b3dadf48161.html)
Trump blocks student’s return to MIT https://thetech.com/2017/01/29/immigration­order­blocks­students­ from­mit (https://thetech.com/2017/01/29/immigration­order­blocks­ students­from­mit)

Tagged: international students (/blog/? tag=international+students)

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20 Cleaning Secrets From Hotel MaidSsiddiqui Decl. -- Exhibit 15

TH (/blog/theM­ OTIVATION motivation­HIND ARLY
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The Common App has revolutionized college admissions, but it has also made it difficult for college admissions officers to determine how serious an applicant is about attending. Early decision and early action options change that.
Jul 21, 2016
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2/6/2017 Case 1:17-cv-00116C-LolMlegBes-tThaCt cBouldDloosectuhemmeosnt tm6on1e-y1fr6om TFruilmepd's i0m2m/ig0r8at/io1n7banP­ Baugsiene1ss oInfsid2erPageID# 528
The 10 US colleges that stand to lose the most from Trump's immigration ban
ABBY JACKSON FEB. 1, 2017, 2:30 PM
Last week,

Trump's immigration ban have a sizable impact on the bottom line at certain American colleges.
REUTERS

President Donald Trump signed an executive order that bars citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen from entering the US for 90 days and all refugees for 120 days. Opponents of the ban worry that the temporary travel ban will turn into a permanent one.
Around the nation, news has emerged of college students from the affected countries not being able to get back into the US.
Aside from the personal hardship the ban has been seen to cause, it may also have a big effect on the bottom line at certain American colleges, according to estimates provided to Business Insider from College Factual, a higher education data analytics and research company.
International students can pay up to three times more than in­state students at public universities, Business Insider's Tanza Loudenback reported in September, citing data from SelfScore, a company providing financial services to international students. Foreign students effectively subsidize education costs for other students at schools where they pay more, taking some of the financial burden off of American students.

Siddiqui Decl. -- Exhibit 16

http://www.businessinsider.com/colleges­potentially­most­affected­trump­immigration­ban­2017­2

1/3

2/6/2017 Case 1:17-cv-00116C-LolMlegBes-tThaCt cBouldDloosectuhemmeosnt tm6on1e-y1fr6om TFruilmepd's i0m2m/ig0r8at/io1n7banP­ Baugsiene2ss oInfsid2erPageID# 529 College Factual collected data from Department of Homeland Security on the number of student visas that were approved in 2015, the most recent year they were able to get information. The 10 universities that had the highest number of student visas from the seven countries which now have a temporary travel ban are:
1. Texas A&M University — 271 2. University of Southern California — 252 3. Northeastern University — 249 4. The Pennsylvania State University — 227 5. University of Central Florida — 224 6. University of Houston­System —221 7. Kaplan International Centers — 219 8. The University of Texas at Arlington — 219 9. Arizona State University — 199 10. Virginia Polytechnic Institute and State University — 197
To estimate the potential yearly revenue loss of these figures, College Factual used the tuition and fees and room and board cost for bachelor's degree programs at each of these schools. The schools that stand to lose the most revenue assuming these students have their visas revoked are:
1. University of Southern California — $16.9 million 2. Northeastern University — $15.6 million 3. Texas A&M University — $11.5 million 4. The Pennsylvania State University — $11.1 million 5. University of Central Florida — $8.6 million 6. Virginia Polytechnic Institute and State University — $8.2 million 7. Arizona State University — $8.2 million 8. University of Houston­System — $7.9 million 9. The University of Texas at Arlington — $7.3 million 10. Kaplan International Centers — $4.3 million
These estimates assume all students are seeking bachelor's degrees, as the visa data was not able to split between those seeking bachelor's degrees and those seeking master's or doctoral degrees.
Of note: Texas institutions of higher education seem to be most susceptible to revenue loss if Trump's immigration ban becomes permanent, with Texas A&M, the University of Houston System, and the University of Texas at Arlington losing an estimated $26.7 million combined.
Amy Smith, senior vice president and chief marketing officer at Texas A&M, said that while the school has not conducted an impact analysis, she thought the numbers were likely inflated as some of its doctoral students attend the school on scholarship. Smith also said that the school doesn't support the ban. "We would not be the university we are without a diverse student body," Smith said.
Some experts warn that the effect on foreign enrollment in US schools could be far greater than just adjusting for the seven banned countries.
"The domino effect of this ban will result in a precipitous decline in international student enrollment from Muslim­majority countries," Rahul Choudaha, cofounder of international student support organization interEDGE, told Business Insider in an email.

Siddiqui Decl. -- Exhibit 16

http://www.businessinsider.com/colleges­potentially­most­affected­trump­immigration­ban­2017­2

2/3

Case 1:17-cv-00116-LMB-TCB Document 61-17 Filed 02/08/17 Page 1 of 3 PageID# 530
Josh Rogin | Opinion
Inside the White HouseCabinet battle over Trump’s immigration order

By Josh Rogin February 4
Editor’s Note: Prior to publication of this column, The Post sought comment from the Department of Homeland Security but not from the White House. We should have done both. The article has been updated. – Fred Hiatt
UPDATE (Feb. 4, 6:13 p.m.): The article has been updated to reflect comments from White House press secretary Sean Spicer. The article previously stated that Stephen K. Bannon visited Homeland Security Secretary John F. Kelly’s office on Jan. 28. Spicer said Bannon did not make such a visit. He also said that Secretary of State Rex Tillerson and Bannon did not participate in a 2 a.m. conference call on Jan. 29. The article also previously stated that President Trump approved a pause in executive orders pending new procedures. According to Spicer, it was White House Chief of Staff Reince Priebus, rather than the president, who approved the new procedures, but not a pause.
UPDATE (Feb. 5, 8:55 a.m.): This post has been updated.

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Over the weekend of Jan. 28­29, as airport protests raged over President Trump’s executive order on immigration, the man charged with implementing the order, Homeland Security Secretary John F. Kelly, had a plan. He would issue a waiver for lawful permanent residents, a.k.a. green­card holders, from the seven majority­Muslim countries whose citizens had been banned from entering the United States.

White House chief strategist Stephen K. Bannon wanted to stop Kelly in his tracks and told him not to issue the order. Kelly, according to two administration officials familiar with the confrontation, refused to comply. That was the beginning of a weekend of negotiations among senior Trump administration staffers that led, on Sunday, Jan. 29, to a White House decision to change the process for the issuance of executive orders.

Siddiqui Decl. -- Exhibit 17

The disagrCeeamsen1t:b1e7tw-ceve-n0B0a1n1n6o-nLManBd-KTeCllBy piDtteodcaumpoelintitc6al1o-p1e7ratForileagdai0n2s/t0a8m/1il7itarPyadgiseci2plionfa3riaPna. gTweIoDa#dm53in1istration
officials gave the following account of their exchange: Respectfully but firmly, the retired general told Bannon that despite his high position in the White House and close relationship with President Trump, the former Breitbart chief was not in Kelly’s chain of command. If the president wanted Kelly to back off from issuing the waiver, Kelly would have to hear it from the president directly, he told Bannon. White House press secretary Sean Spicer said Kelly and Bannon spoke on Jan. 27 and 29, but denied they had a confrontation over the green card waiver. In an email sent late Saturday, Bannon also denied a confrontation with Kelly and said he had not told him to withhold the waiver.

Trump didn’t call Kelly to tell him to hold off. Kelly issued the waiver late Saturday night, although it wasn’t officially announced until the following day.

That did not end the dispute. At approximately 2 a.m. Sunday, according to the two officials, a conference call of several top officials was convened to discuss the ongoing confusion over the executive order and the anger from Cabinet officials over their lack of inclusion in the process in advance.

On the call were White House senior policy adviser Stephen Miller, White House Counsel Donald McGahn, national security adviser Michael Flynn, Kelly, Defense Secretary Jim Mattis and a senior State Department official, who represented the State Department because Secretary of State nominee Rex Tillerson had not yet been confirmed.

One White House official and one administration official told me that the Cabinet officials presented a united front and complained about the process that led to the issuance of the immigration executive order, focusing on their near­complete lack of consultation as well as the White House’s reluctance to make what they saw as common­sense revisions, such as exempting green­card holders.

Bannon and Miller pushed back, defending the White House’s actions and explaining that the process and substance of the order had been kept to a close circle because the Trump administration had not yet installed its own officials in key government roles and other officials were still getting settled into place.

Flynn, according to the White House official, partially sided with the Cabinet officials, arguing that they should be included in the process, even if the White House ultimately decided not to adopt their recommendations.

“Flynn’s argument was a process argument, that we are unnecessarily putting these guys in a tough position,” the White House official said. “If you are going to ignore them, you have to at least give them a chance to say their piece.”

Later on Sunday, White House Chief of Staff Reince Priebus met with senior staff and made a decision at that, following the already scheduled rollout of an executive order on regulatory reforms, all other executive orders would be held up until a process was established that included the input of key officials outside the White House.

Spicer told The Post that there was no pause and that Priebus simply issued new procedures for executive orders that were

meant for improving the process.

Siddiqui Decl. -- Exhibit 17

“We have Ctoaesvealu1a:1te7t-hcev-w0a0y1w1e6g-LetMinBp-uTtCfrBom DthoecCuambiennet s6e1c-r1et7arieFsilaefdfec0t2ed/0b8e/f1o7re wPeadgoeth3inogfs,3” tPhaegWehIDite#H5o3u2se official
said. The pause appeared to end on Friday, when Trump signed an executive order and a memorandum on financial regulation.
The weekend’s events were the first major dust­up between the White House political leadership and the powerful figures Trump has appointed to head the national security bureaucracies. The Cabinet members stood up for themselves and their agencies and successfully pushed for a policy tweak that the administration later embraced in a memorandum to “clarify” the executive order.
The Cabinet members also demonstrated that they had something to offer the White House besides their policy input; they are the most credible spokespeople for controversial White House policies in the eyes of the public. On Tuesday, Kelly gave the White House badly needed political cover by holding a news conference and strongly defending the immigration executive order.
“This is not, I repeat, not, a ban on Muslims,” Kelly said. “We cannot gamble with American lives. I will not gamble with American lives. These orders are a matter of national security, and it is my sworn responsibility as secretary of homeland security to protect and defend the American people,” he said.
He said the DHS would implement the order “humanely,” that the DHS lawyers had been involved in preparing the order and that he did have some advance notice, denying reports he found out about it being signed while he was on an airplane. “We knew it was coming. It wasn’t a surprise,” Kelly said.
Minutes later, Spicer told reporters at the daily briefing that “there was proper coordination and preparation” between the White House and the DHS.
If the White House is now serious about working with the Cabinet, that’s a positive sign and means that this series of events had a constructive impact on policymaking. But there’s a good chance that this won’t be the last time that Cabinet secretaries will have to confront Bannon and Miller. Score their first battle as a tie.

Josh Rogin is a columnist for the Global Opinions section of The Washington Post. He writes about foreign policy and national security.  Follow @joshrogin

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Donald Trump's tweets on Islam, Muslims and the Middle East
Themes include oil, predictions of an Iranian takeover of Iraq, an Obama-led strike on Iran, and more oil. Did we mention oil?
by ExpressNews.com a year ago 5,989 Views 
On Muslims in America and terrorism:
Siddiqui Decl. -- Exhibit 18

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Donald J. Trump
@realDonaldTrump

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Con Ed has won its suit against the Ground Zero Mosque developers nyp.st/Lj4JJ2 The mosque is never going up.
12:15 PM ­ 3 Jul 2012

Con Ed wins one over mosque back rent
Chalk one up for Con Edison in its battle over back rent with the mosque developer at 51 Park Place. The Post has learned that in June, State nypost.com

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The Ground Zero Mosque should not go up where planned. It is wrong. My offer still stands to buy the property. Good deal for everyone.
5:45 PM ­ 10 Dec 2012

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Can someone explain to me how a Chechnyan permanent resident non­citizen in our country is planning Jihad while on welfare?
1:01 PM ­ 24 Apr 2013

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The Boston terrorist thugs’ mother is also a radical. I am sure she will be granted citizenship shortly.
1:07 PM ­ 26 Apr 2013

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"@jp_sitles: @realDonaldTrump HillaryClinton: she compared republicans to terrorist but will not call terrorists , terrorists. #OhMe"
9:52 PM ­ 27 Aug 2015

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Why won't President Obama use the term Islamic Terrorism? Isn't it now, after all of this time and so much death, about time!
10:30 PM ­ 14 Nov 2015

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"@shawnlivinlife: I still haven't heard the WH say the words islamic terrorist. Call it what it is. #Trump2016 can't happen fast enough.
6:30 PM ­ 14 Nov 2015

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When will President Obama issue the words RADICAL ISLAMIC TERRORISM? He can't say it, and unless he will, the problem will not be solved!
9:18 AM ­ 15 Nov 2015

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I didn't suggest a database­a reporter did. We must defeat Islamic terrorism & have surveillance, including a watch list, to protect America
1:51 PM ­ 20 Nov 2015

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I LIVE IN NEW JERSEY & @realDonaldTrump IS RIGHT: MUSLIMS DID CELEBRATE ON 9/11 HERE! WE SAW IT! infowars.com/i­live­in­jers…
7:22 PM ­ 25 Nov 2015

I Live In Jersey And Trump Is Right: Muslim…
Donald Trump is telling the truth about Muslims celebrating in New Jersey on September 11, 2001. infowars.com

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"@thumpmomma: I likewise saw militant Muslims burning our flag and burning George Bush photos and figures, right after 9/11! Not#here!"
5:36 PM ­ 2 Dec 2015

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Wonder if Obama will ever say RADICAL ISLAMIC TERRORIST?
7:42 PM ­ 5 Dec 2015

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Hillary won't call out radical Islam! She will be soundly defeated.
7:55 PM ­ 6 Dec 2015

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@realDonaldTrump
"Credible Source on 9­11 Muslim Celebrations: FBI" wkrg.com/2015/11/25/cre…
11:43 AM ­ 7 Dec 2015

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Credible Source on 9­11 Muslim Celebrations: FBI
One retired FBI agent says Donald Trump’s claims of seeing Muslim celebrations following the attacks on 9­11 are absolutely plausible. JwimkrgB.cuorkmett was an assistant special agent in charge wit…

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Statement on Preventing Muslim Immigration: donaldjtrump.com/press­releases…
5:32 PM ­ 7 Dec 2015

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Our country is facing a major threat from radical Islamic terrorism. We better get very smart, and very tough, FAST, before it is too late!
9:56 PM ­ 8 Dec 2015

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On civil liberties:

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With Boston terrorist cell widening in suspects, it's now clear that it was a mistake to read the bomber the Miranda warning so early.
12:37 PM ­ 2 May 2013

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Why are some more concerned with granting terrorist rights than protecting innocent Americans?
4:57 PM ­ 2 May 2013

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Any American who fights w/ ISIS in Iraq or Syria should have their passport revoked. If they try to come back in, send them to Gitmo.
2:08 PM ­ 4 Sep 2014

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On Iraq:

Donald J. Trump
@realDonaldTrump

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"@TheBrodyFile: On the Muslim issue: It might help @BarackObama if he actually supported Christians religious liberty rights.
8:32 AM ­ 21 Sep 2015 · Manhattan, NY

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Govt. collapsing in Iraq only 2 weeks after withdrawal of our troops. Sadly, I called this one and please remember, I alone called it.
2:38 PM ­ 27 Dec 2011

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America wasted billions and precious lives in Iraq and Iran will soon take control­­very very sad.
3:26 PM ­ 29 Dec 2011

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Why are we building a $1Billion embassy in Iraq when the country kicked us out, didn't give us any oil & is about to get taken over by Iran?
4:01 PM ­ 10 Jan 2012

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Under Obama, Iran has taken over Iraq, Al Qaeda has taken over Libya, the Muslim Brotherhood now controls Egypt. Worst foreign policy ever.
3:24 PM ­ 2 Oct 2012

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10 yrs ago today, the Iraq war began. 4,485 of our nation’s finest have not returned home alive. Iran will soon control Iraq & its oil.
3:20 PM ­ 19 Mar 2013

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Donald J. Trump
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Iran is moving troops into Iraq under the guise that it is helping out. Actually, they will take over Iraq and all of their oil. Stupid U.S.
7:17 PM ­ 14 Jun 2014

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Iran will convince our incompetent President that they are trying to help us with Iraq, take over the country & oil, and "O" will say thanks
7:56 PM ­ 14 Jun 2014

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Remember when I said when Saddam Hussein fell ­ the new leader of Iraq will be meaner and tougher and hate the U.S. even more. Welcome ISIS!
7:25 AM ­ 11 Oct 2014 · Manhattan, NY

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Iraq's Army Chief of Staff is already seeking "Stronger" Ties with Iran. Once we leave, Iran will take over Iraq. bit.ly/uJZfV6
2:17 PM ­ 16 Nov 2011

Iraq's Army Chief of Staff Seeks 'Stronger' T…
Secretary of Defense Leon Panetta testified before the Senate Armed Services Committee today that “Iraq is ready to handle security without nationalreview.com

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Iraq should be paying us while we fight ISIS. Give the money to the families of our brave soldiers.
3:29 PM ­ 20 Nov 2014

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Wow, ISIS has just taken the City of Ramadi in Iraq. So many of our great soldiers died in originally going after it. Such a waste.
6:09 AM ­ 18 May 2015 · Manhattan, NY

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If any candidate believes that with what we know today we still should have invaded Iraq then they are unqualified to be Commander­in­Chief.
3:03 PM ­ 26 May 2015

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Has Charles @krauthammer ever apologized for being so totally wrong on Iraq? I called it right in every way—Make America Great Again!
10:35 AM ­ 19 Jun 2015

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Jeb, why did your brother attack and destabalize the Middle East by attacking Iraq when there were no weapons of mass destruction? Bad info?
9:29 AM ­ 18 Oct 2015

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On Obama's middle east policy, and predictions of an attack on Iran:

Donald J. Trump
@realDonaldTrump

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In order to get elected, @BarackObama will start a war with Iran.
2:48 PM ­ 29 Nov 2011

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THe WH should not have hosted the Muslim Brotherhood. @BarackObama's friends are enemies of the US and @Israel. The Islamist winter is here.
1:23 PM ­ 6 Apr 2012

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Just as I predicted, @BarackObama is preparing a possible attack on Iran right before November. nyti.ms/N5CTdm
1:29 PM ­ 3 Jul 2012

U.S. Adds Forces in Persian Gulf, a Signal t…
The United States’ quiet military buildup in the Strait of Hormuz, in response to Iranian threats to disrupt sea traffic, carries risks of confrontation. nytimes.com

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I always said @BarackObama will attack Iran, in some form, prior to the election.
4:24 PM ­ 16 Aug 2012

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Remember that I predicted a long time ago that President Obama will attack Iran because of his inability to negotiate properly­not skilled!
9:55 PM ­ 10 Nov 2013

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Message to Obama re: Iran: “The worst thing you can possibly do in a deal is seem desperate to make it.” – The Art of the Deal
3:11 PM ­ 26 Mar 2015

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"I would triple the sanctions on Iran if the American pastor is not released." ­ my @SRQRepublicans speech
8:04 PM ­ 21 May 2015

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Just as I predicted, while Obama lifted sanctions 18 months ago, Iran cheated & increased its nuclear fuel by 20%. We must DOUBLE sanctions!
3:36 PM ­ 3 Jun 2015

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On not taking the oil from Iraq, Libya and Syria.

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Donald J. Trump
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USA should take oil from Iraq in repayment for their liberation. bit.ly/pqBAMc
9:24 AM ­ 7 Sep 2011

Trump: Taking Iraq's Oil Would Boost US Economy Donald Trump says it is not necessary to cut social programs to reduce America s debt and revitalize the economy what is needed is newsmax.com

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Donald J. Trump
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Iraq's government is treating us like fools. We should demand their oil.
4:07 PM ­ 18 Oct 2011

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We are leaving Iraq after expending a tremendous amount of blood and treasure. We should be reimbursed with oil! ­­ Don't give it to Iran.
1:01 PM ­ 24 Oct 2011

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Donald J. Trump
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Why aren't we getting any oil from Iraq before we leave? We are leaving the country wide open for Iran. Big mistake.
4:26 PM ­ 26 Oct 2011

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When will our nation's sacrifices be respectfully appreciated? Iraq and Libya should reimburse us in oil.
1:31 PM ­ 27 Oct 2011

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@realDonaldTrump

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Iran will soon take all of the oil in Iraq...and Iraq itself­­­Keep the oil.
1:32 PM ­ 28 Nov 2011

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@realDonaldTrump

I still can't believe we didn't t take the oil from Iraq.
1:20 PM ­ 21 Dec 2011

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Donald J. Trump
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China has 5 oil projects in Iraq and we didn't get anything from the Iraqis except asked to leave. Iraq is going (cont) tl.gd/f0ec7f
1:43 PM ­ 28 Dec 2011

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We should have gotten more of the oil in Syria, and we should have gotten more of the oil in Iraq. Dumb leaders.
3:28 PM ­ 16 Mar 2012

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@realDonaldTrump

The dummies left Iraq (and Libya) without the oil!
1:33 PM ­ 30 Aug 2012

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@realDonaldTrump

I still can’t believe we left Iraq without the oil.
2:14 PM ­ 23 Jan 2013

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Just as I predicted, Iraq is deteriorating into utter chaos bit.ly/11ZsNT7 The war was a waste. China is taking all the oil.
2:04 PM ­ 26 Apr 2013

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Donald J. Trump
@realDonaldTrump

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I still can’t believe we left Iraq without the oil.
2:14 PM ­ 23 Jan 2013

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@realDonaldTrump

WHO IS GOING TO GET IRAQ'S OIL???????
7:32 AM ­ 19 Mar 2013

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Donald J. Trump
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I was never a fan of Bush 2 FOR MANY REASONS, including the fact that we should never have gone into Iraq but once there, kept the oil! DUMB
6:25 AM ­ 17 May 2013

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Our debt is about to reach $17T. Iraq has $20T in oil reserves. Interesting.
1:50 PM ­ 20 Jun 2013

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Donald J. Trump
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China is taking the oil from Iraq after we spent 1.5 trillion dollars and thousands of lives for their "freedom". Our leaders are so stupid!
7:29 AM ­ 23 Jul 2013

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Donald J. Trump
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"@Bigjohn6531 You were 100% on the mark Donald when you said we should have taken some Iraqi oil ..." True, now Iran has it.
3:33 PM ­ 27 Mar 2014

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Once the tragic mistake of going into Iraq was made, we should have at least taken the oil (or at least some of it). Now Iran & China get it
4:53 AM ­ 22 Apr 2014

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I told you so a long time ago: Iraq just lost second largest city as their soldiers drop their guns and run. Only the beginning! OIL.
7:32 PM ­ 10 Jun 2014

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Donald J. Trump
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Iraq told us to get out, Iraq is now falling, and Iraq now wants us to come back! Don't do it unless we get the OIL, and I mean ALL OF IT!
8:03 AM ­ 12 Jun 2014

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I told all of the haters and losers long ago that Iraq would fall, take the OIL or get out fast! Massive waste of lives and trillions of $'s
8:07 AM ­ 12 Jun 2014

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After foolishly spending two trillion $'s and losing so many great young people, the U.S. will be the only one who won't get the oil in Iraq
12:38 AM ­ 4 Jul 2014

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We should have taken the oil in Iraq, and now our mortal enemies have got it, and with no opposition. Really dumb U.S. pols! I'm so angry!
10:16 AM ­ 4 Aug 2014

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Donald J. Trump
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Do not go back into Iraq unless they agree, in a signed formal instrument, to give the U.S. 50% of their oil reserves.Make the deal dummies!
9:39 PM ­ 7 Nov 2014

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Home Politics U.S. Opinion Business Entertainment Tech Science Health Travel Lifestyle World On Air INTERVIEWS
Donald Trump Sits Down With Bill O'Reilly
Published March 30, 2011 FOX News

NOW PLAYING
Donald Trump in No Spin Zone
This is a RUSH transcript from "The O'Reilly Factor," March 30, 2011. This copy may not be in its final form and may be updated.
Watch "The O'Reilly Factor" weeknights at 8 p.m. and 11 p.m. ET!
BILL O'REILLY, HOST: In the "Personal Story" segment tonight: Donald Trump for president. The real estate mogul and TV personality says he's considering a run for the Republican nomination in 2012. Mr. Trump has made millions building and selling real estate. His program "The Celebrity Apprentice" is very highly rated, and he is a no­spin guy. Just ask the ladies on "The View." But he has not been closely questioned about policy until tonight.
(BEGIN VIDEOTAPE)
O'REILLY: Obamacare. Do you believe the federal government has an obligation, a moral obligation, to provide people who can't afford health insurance with health insurance?

More on this...
Donald Trump in No Spin Zone, Part 2

DONALD TRUMP, REAL ESTATE MOGUL: I certainly would like to see ­­ you know, I have a big heart. I really do, despite what you may think.

O'REILLY: Me?

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TRUMP: And I have a great, big, fat, beautiful heart. And when people are in trouble, I like to help them out. We have a moral obligation to help people. I really believe that. I believe that strongly and not everybody does.

O'REILLY: So there will be Trumpcare then?

TRUMP: Well, it would be a form of much better. As an example, I have a big company. When I buy health insurance, I can't go across state lines to buy it. You know why?

O'REILLY: Yes.

TRUMP: And I can make a better deal in New Jersey than I can in New York with a better company. Yet, I can't go. No. 1, anywhere in the United States has to be a strong company. But we should be able to go out and price it privately. I believe in the private. But I don't want to be stuck with one or two companies in New York. I should be able to go to Wisconsin. I should be able to go to Iowa. If I want to buy health care for my people, as long as it's a strong company, I should be able to bid it out.

O'REILLY: All right.

TRUMP: So that would be a big thing right there.

O'REILLY: One of the reasons the recession hit us so hard is because weasels on Wall Street ginned up these real estate derivatives. You're a real estate guy. Would you crack down on Wall Street? Would you have more regulations on these people? More rules they have to follow over there?

TRUMP: I would not do that. You're making it so tough for our companies and our Wall Street people ­­ let's use the word nicely ­­ our Wall Street people to compete with the rest of the world because you have guys in London, guys in Switzerland, guys in Hong Kong that are giving very, very good deals, and they don't have the kind of regulation that we have here. I'm not a big regulation person.

O'REILLY: OK, all right. Now, you have a situation where the unions, all right, are being attacked by some governors because the public service unions, tremendous perks. OK. You use union labor.

TRUMP: I do.

O'REILLY: What do you think about the unions?

TRUMP: I have a great relationship with unions. I understand what's happening, let's say in Wisconsin. I understand.

O'REILLY: Is Walker right in Wisconsin?

TRUMP: I think that he is maybe right for his state. I think it doesn't necessarily apply to all states. You know, I have had great relationship over the years with unions. We've had collective bargaining. I have become very wealthy. I have dealt with unions because, as you know, New York is largely unions. You are dealing with them. I have great friends that are in unions and heads of unions. So I haven't had the same difficulty and problem. But I think you have to do what's right for your area. I respect him. He is tough.

O'REILLY: Walker, you're talking about.

TRUMP: Yes. He is unyielding and maybe sometimes too unyielding and maybe not too unyielding. He wants Wisconsin to come back. He wants to have a great balanced budget. So I understand what he is doing.

O'REILLY: All right. Illegal immigration. How are we going to stop that?

TRUMP: Well, you either have a country or you don't. You either have a line and a boundary or you don't. Something has

to be done.

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O'REILLY: What?

TRUMP: Well, you put soldiers on that line.

O'REILLY: You militarize it.

TRUMP: Do you have a choice?

O'REILLY: I don't think so. I've been calling for that for 10 years.

TRUMP: They are coming over and they are ­­ they are climbing over a fence and there's nobody within 10 miles. And they walk…

O'REILLY: All right, you militarize the border. You make it very difficult.

TRUMP: They get a job and they are selling drugs all over the place…

O'REILLY: Yes, you stop the narcotics.

TRUMP: …and they are killing people all over the place. We're not doing anything about it.

O'REILLY: OK. Now, the 15 million illegal aliens already in the United States. What do you do with them?

TRUMP: I think right now you're going to have to do something and, you know, it's hard to generalize. But you're going to have to look at the individual people. See how they've done. See how productive they have been. See what their references are and then make a decision.

O'REILLY: And then make a decision. All right, on case by case. It's going to take a long time and a lot of people.

TRUMP: A long time, but, you know, you have some great productive people that came in.

O'REILLY: No doubt.

TRUMP: And then you have some total disasters that probably should be in prison.

O'REILLY: OK. Real quick, social issues. Abortion.

TRUMP: Right.

O'REILLY: You favor it?

TRUMP: No. As you know, I'm pro­life.

O'REILLY: OK, so you're pro­life on abortion. But would you outlaw abortion?

TRUMP: Well, I'd ­­ I'd go a step ­­ I'd go a pretty strong step. Something I don't like, I used to not be pro­life. I have become pro­life. I have seen friends that had children that they didn't want. And now they have children and they are the apple of the eye. So I really have changed in my views over the years but I am pro­life. I would ­­ I would really ­­ I'm forming an opinion, I'm forming a very strong opinion but I'll let you know in about three or four weeks if I decided to.

O'REILLY: All right. Gay marriage, favor it?

TRUMP: I'm against it.

O'REILLY: Why?

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TRUMP: I just don't feel good about it. I don't feel right about it. I'm against it and I take a lot of heat because I come from New York. You know, for New York it's like, how can you be against gay marriage? But I'm opposed to gay marriage.

O'REILLY: They say, the gays, that this violates their rights, that they are American citizens and they should have a right to live the same way heterosexuals live, and you say?

TRUMP: Well, I think it's a tough situation, and I'll tell you what I say. I say that we have other problems. We have other problems in this country. And I don't think a president should be elected on gay marriage or not gay marriage because we have some very big problems. Based on everything I see, Obama, who said basically the same thing as I do, I think he is going to come out in favor of gay marriage.

O'REILLY: Yes, he will. But you remain opposed?

TRUMP: I am opposed, yes.

(END VIDEO CLIP)

O'REILLY: All right. Now we'll have more with Mr. Trump in a moment. We'll pin him down on the tax question. That's pretty interesting.

(COMMERCIAL BREAK)

O'REILLY: Continuing now with our interview of Donald Trump, who may run for president in the Republican primaries. We begin our second segment with Trump's media exposure.

(BEGIN VIDEOTAPE)

O'REILLY: You saw me on "The View" with the ladies walking out.

TRUMP: Yes, I did.

O'REILLY: But they did not walk out with you when you brought up the birth certificate and they should have. That was worse than what I did. Is there a Muslim problem in the world?

TRUMP: Absolutely. Absolutely. I don't notice Swedish people knocking down the World Trade Center.

O'REILLY: So why…

TRUMP: I came out very strongly against the mosque being built virtually…

O'REILLY: So did I. You and I are on the same page. However, Muslim­Americans say you are picking on us.

TRUMP: No, nobody is picking. The fact is it was so insensitive when they announced the mosque in that location. Don't forget that's my territory, Manhattan real estate. When they announced the mosque in that location I couldn't believe it. You know, you have people ­– 3,000 people died and you have all those parents and sisters and brothers and wives, I mean, just saying, "I can't believe it. The World Trade Center came down, my loved one more than anybody in the world I love this person, dead and now they are building a mosque across it."

O'REILLY: Yes. I thought it was the same way.

TRUMP: I think it's very insensitive and I…

O'REILLY: But you do believe overall there is a Muslim problem in the world.

TRUMP: Well, there is a Muslim problem. Absolutely. You just have to turn on your television set.

Siddiqui Decl. -- Exhibit 19

http://www.foxnews.com/transcript/2011/03/30/donald­trump­sits­down­bill­oreilly/print

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O'REILLY: And do you think it encompasses all Muslims?
TRUMP: No. And that's the sad part about life. Because you have fabulous Muslims. I know many Muslims and they're fabulous people. They're smart. They're industrious. They're great. Unfortunately, at this moment in time, there is a Muslim problem in the world. And by the way, and you know it and it I know it and some people don't like saying it because they think it's not politically correct.
O'REILLY: Whoopi and Joy will walk off on me. But when I say there is a Muslim problem in the world I basically say why don't the good Muslims that I believe outnumber the bad Muslims probably eight or nine to one…
TRUMP: Or more.
O'REILLY: …why don't they, the Muslim community throughout the world, speak out more forcefully against the jihadists?
TRUMP: Well, there is something out there that brings a level of hostility that I have never seen in any religion. I mean, you can say what you want about the Koran. You can say what you want, but there's something there. There is tremendous hatred and tremendous hatred of us. I look at Iraq. I was watching the other day, you know, we have spent all this money and all those lives in Iraq. They hate us. They hate us. They can't get rid of us fast enough.
O'REILLY: Now, when you were on "The View" and they didn't walk out, which they should have because they walked out on me and they should have stayed. You were way, way worse than I was on "The View." You were hammering the birth certificate.
Now, we very early on did an investigation about Barack Obama's birth certificate. What "The Factor" found out was there were two announcements the week he was born in both Honolulu newspapers saying that he was born, OK. That is impossible ­­ that is impossible to make happen if he had not been born in the hospital. So therefore, I just put it to bed. I said he was born in Honolulu. The two newspapers documented it. His mother was a hippy. His father was a guy from Kenya who split. There couldn't have been a sophisticated ­­ what is he, Baby Jesus? ­­ there was a sophisticated conspiracy to smuggle this baby back into the country? So I just dismissed it. But you made a big deal of it.
TRUMP: Bill, I grew up with Wall Street geniuses. What they do in terms of fraud and how they change documents and I will tell you something. If you notice those dates were three days later. Here is what I ask people. Who puts announcements? Here are two poor people, a man and a woman with no money, they have a baby. There's announcements in the newspaper?
O'REILLY: The grandparents did it.
TRUMP: Excuse me. The grandparents. Nelson Rockefeller doesn't put announcements.
O'REILLY: Sure, there are birth announcements all the time.
TRUMP: I have never seen one.
O'REILLY: Really? They are common.
TRUMP: I've never seen one.
O'REILLY: But why is this important to you?
TRUMP: Because if you are going to be president of the United States you have to be born in this country. And there is a doubt as to whether or not he was born…
O'REILLY: Oh come on. Do you really feel this about him?

Siddiqui Decl. -- Exhibit 19

http://www.foxnews.com/transcript/2011/03/30/donald­trump­sits­down­bill­oreilly/print

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TRUMP: You know, I started off by saying ­­ and I always do and I did on the "The View." I'm a very smart guy. I went to the best college. I had good marks. I was a very smart guy, good student and all that stuff. Because what they do to the birthers, which is a term I hate because a lot of these birthers are just really quality people that just want the truth. What they do to the birthers is unbelievable to a point where people are afraid to talk about this subject. They are afraid to confront you or anybody about this subject.
O'REILLY: Do you think it's an important subject?
TRUMP: Listen, I have a birth certificate. I have my birth certificate. And in fact, they said the one I gave yesterday wasn't good enough. So I actually got the one from the Health Department, which is the perfect one. Because they were saying the one I gave yesterday wasn't good enough, so I got the other. People have birth certificates. He doesn't have a birth certificate. He may have one but there's something on that, maybe religion, maybe it says he is a Muslim. I don't know. Maybe he doesn't want that. Or he may not have one. But I will tell you this. If he wasn't born in this country, it's one of the great scams of all time.
O'REILLY: Absolutely. But I don't think that's the case.
TRUMP: You don't, but I'm starting to think.
O'REILLY: I don't think you believe that either. I think it's provocative, you get a lot of attention raising the question. But I don't think you believe it either.
TRUMP: Two weeks ago I felt like probably he was born in the country. Today it's possibly. I'm telling you it's changed. I have seen too many things.
O'REILLY: Why did Whoopi Goldberg get so angry about it?
TRUMP: I don't know.
O'REILLY: Didn't you ask her?
TRUMP: Then she said to me. She likes me, she said, "Donald, I love you but" ­­ she actually said, if it were a white man. Now, I know they asked for Bush's birth certificate. I know for a fact they asked for John McCain's birth certificate.
O'REILLY: So why did she make it racial? Why did she…
TRUMP: I don't know. She brought race into it. She brings race into it. What can I tell you?
(END VIDEOTAPE)
O'REILLY: All right. So, I misspoke. We are going to have that tax thing tomorrow and then we're going to go to Libya tomorrow and Afghanistan and all of that with Trump, so we hope you tune in. It gets even more flamboyant.
Content and Programming Copyright 2011 Fox News Network, Inc. Copyright 2011 Roll Call, Inc. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of Roll Call. You may not alter or remove any trademark, copyright or other notice from copies of the content.

Siddiqui Decl. -- Exhibit 19

http://www.foxnews.com/transcript/2011/03/30/donald­trump­sits­down­bill­oreilly/print

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2/8/2017 Case 1:17D-ocnavld-0T0ru1m1p 6Sa-yLsMHeB'd-'TAbCsoBlutelDy' Roecquuimre eMnustlim6s1t-o2R0egisFteril­eFdirs0t D2r/a0ft.8P/o1li7tical PNeawgs,eNo1w.o­fTh3e PNeawgYeoIrkDT#im5es60

LCTION 2016
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1:31 am ET By Trip Gabriel

Donald Trump Says He’d ‘Absolutely’
Require Muslims to Register
1:31 am ET Trip Gabriel

NEWTON, Iowa — Donald J. Trump, who earlier in the week said he was open to requiring Muslims in the United States to register in a database, said on Thursday night that he “would certainly implement that — absolutely.”
Mr. Trump was asked about the issue by an NBC News reporter and pressed on whether all Muslims in the country would be forced to register. “They have to be,” he said. “They have to be.’’

Siddiqui Decl. -- Exhibit 20

https://www.nytimes.com/politics/first­draft/2015/11/20/donald­trump­says­hed­absolutely­require­muslims­to­register/

1/33

2/8/2017 Case 1:17D-ocnavld-0T0ru1m1p 6Sa-yLsMHeB'd-'TAbCsoBlutelDy' Roecquuimre eMnustlim6s1t-o2R0egisFteril­eFdirs0t D2r/a0ft.8P/o1li7tical PNeawgs,eNo2w.o­fTh3e PNeawgYeoIrkDT#im5es61
When asked how a system of registering Muslims would be carried out — whether, for instance, mosques would be where people could register — Mr. Trump said: “Different places. You sign up at different places. But it’s all about management. Our country has no management.’’
Asked later, as he signed autographs, how such a database would be different from Jews having to register in Nazi Germany, Mr. Trump repeatedly said, “You tell me,” until he stopped responding to the question.
Both Mr. Trump and Ben Carson, the top two Republican presidential candidates in most polls, have made sharply provocative remarks about Muslim refugees from Syria and Iraq, and have been criticized by Muslim groups in the United States.
On Thursday, Mr. Carson seemed to equate refugees’ seeking entrance to the United States to “a rabid dog running around your neighborhood.’’ Both Mr. Carson’s and Mr. Trump’s remarks came the day the House voted to severely restrict the flow of Syrian and Iraqi refugees into the United States, amid security concerns after the terrorist assaults in Paris.
Donald Trump’s Call for Muslim Registry Denounced by Democrats
By MAGGIE HABERMAN
Donald J. Trump’s remarks took hours to penetrate over social media, but by Friday morning, Democrats were calling him out. Jeb Bush was one of the first Republican presidential candidates to respond, calling Mr. Trump’s words “just wrong.”
Donald Trump Steps Back From Calling for Muslim Registry
By ALAN RAPPEPORT
Mr. Trump said the idea that Muslims in America should register with the federal government had come from a reporter.
Donald Trump Sets Off a Furor With Call to Register Muslims in the U.S.
By MAGGIE HABERMAN and RICHARD PÉREZ­PEÑA
Mr. Trump drew back from his call for a mandatory registry of Muslims in the United States, capping a week where candidates discussed their approaches to terrorism.

Siddiqui Decl. -- Exhibit 20

https://www.nytimes.com/politics/first­draft/2015/11/20/donald­trump­says­hed­absolutely­require­muslims­to­register/

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Find out what you need to know about the 2016 presidential race today, and get politics news updates via Facebook, Twitter and the First Draft newsletter.

Siddiqui Decl. -- Exhibit 20

https://www.nytimes.com/politics/first­draft/2015/11/20/donald­trump­says­hed­absolutely­require­muslims­to­register/

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2/8/2017 Case 1:17-cv-00116T-rLumMpBto-MTSCNBBC: 'DThoe cMuusmlimeCnotm6m1u-n2ity1Is NFotilReedpo0rti2ng/0W8h/a1t's7GoiPngaOgne' | D1aiolyfW3irePageID# 563
Trump to MSNBC: 'The Muslim Community Is Not Reporting What's Going On'

BY: ROBERT KRAYCHIK on DECEMBER 8, 2015
Donald Trump told MSNBC on Tuesday that Muslims in America “aren’t helping” authorities combat domesticallycultivated Islamic terrorism. Calling in to speak with Morning Joe, Trump told Joe Scarborough, “I want (Muslims in America) to be on our side, I hope they are on our side." Referring to last week’s Islamic terrorist attack in San Bernardino, CA, he asserted that those close to Syed Farook and Tashfeen Malik - including family and friends had advance knowledge of the threat they posed and refused to contact authorities.
Asked by Mika Brzezinski about engaging the “Muslim community”, Trump said, “I would want to engage the Muslim community, 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.”

Siddiqui Decl. -- Exhibit 21

http://www.dailywire.com/news/1692/trump­msnbc­muslim­community­not­reporting­whats­robert­kraychik

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2/8/2017 Case 1:17-cv-00116T-rLumMpBto-MTSCNBBC: 'DThoe cMuusmlimeCnotm6m1u-n2ity1Is NFotilReedpo0rti2ng/0W8h/a1t's7GoiPngaOgne' | D2aiolyfW3irePageID# 564
VIDEO Trump is "playing into the hands of ISIS": CAIR

Trump explained his views of the responsibilities of Muslims in America with knowledge of threats from potential Islamic terrorists, saying, “The Muslim community has to help us, because without the Muslim community we would have to get very tough, and much tougher, and I don’t wanna do that. But the Muslim community, it’s 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.”
Trump’s statement echoes an interview conducted yesterday (http://www.breitbart.com/big-government/2015/12/07/fmrfbi-counterterrorism-agent-weve-received-nearly-zero-help-from-u-s-muslim-community-since-911/) by Breitbart News Daily with a former FBI counterterrorism agent, asserting that since 9/11, “we have effectively received zero help from the Muslim community.” Also asserted is that “major Islamic organizations” across America put their efforts towards harming national security measures in the realm of counterterrorism, rather than cooperation with authorities. As an example, organizations like the Council on American-Islamic Relations - ostensibly a group defending civil liberties - obfuscate the overlap between Islamic terrorism, Islam, and Muslims.
Pushing back against what he said was an unfair generalization of Muslims, Scarborough invited Trump to join him in meeting Muslims in America, asking, “What if you and I go to an Islamic center in Washington, D.C.? Or New York City?”

Siddiqui Decl. -- Exhibit 21

http://www.dailywire.com/news/1692/trump­msnbc­muslim­community­not­reporting­whats­robert­kraychik

2/5

2/8/2017 Case 1:17-cv-00116T-rLumMpBto-MTSCNBBC: 'DThoe cMuusmlimeCnotm6m1u-n2ity1Is NFotilReedpo0rti2ng/0W8h/a1t's7GoiPngaOgne' | D3aiolyfW3irePageID# 565 Scarborough described Trump’s proposal (https://www.youtube.com/watch?v=TBIxd_o2OwA) to ban Muslim entry (http://www.dailywire.com/news/1668/desperate-trump-drops-ugly-policy-bomb-ban-all-ben-shapiro) into the U.S. as “counterproductive and unconstitutional” - despite its not being unconstitutional (http://www.dailywire.com/news/1685/no-donald-trumps-immigration-plan-isnt-ben-shapiro) with respect to immigration - and likened the broad measure as akin to the TSA’s searching (https://www.youtube.com/watch?v=Y4GUElkRcYk) of 7-year-old children.
Trump warned of “radicalized” Islamic neighborhoods in Paris and other cities in Europe as coming to America in the absence of his leadership. Scarborough scoffed at the assertion of the existence of such zones, parroting the denial of their existence that has gone on for years (http://www.breitbart.com/big-government/2015/11/16/exclusive-bobbyjindal-right-muslim-no-go-zones/) in left-wing media.
If his warnings aren’t heeded, Trump warned, “you are going to have other world trade centers, you are going to have other cities being blown up.”
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Siddiqui Decl. -- Exhibit 21

http://www.dailywire.com/news/1692/trump­msnbc­muslim­community­not­reporting­whats­robert­kraychik

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60 MINUTES POLITICS
The Republica Ticket

The Republican Ticket: Trump and Pence

Republican presidential nominee Donald Trump and his running mate, Indiana Gov. Mike Pence, speak to Lesley Stahl in their ﬁrst joint interview

2016

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The following is a script from "The Republican Ticket" which aired on July 17, 2016. Lesley Stahl is the correspondent. Richard Bonin and Ruth Streeter, producers.
The Republican National Convention that begins tomorrow in Cleveland will star Donald Trump and his chosen running mate the governor of Indiana, Mike Pence.
The Republican leadership has praised Pence as a good choice to unite the party. He's known as a reliable conservative with close ties to the religious right and he also has good relations with Republicans in Congress, having served six terms in the House of Representatives.

60 MINUTES OVERTIME
What kind of vice president would Mike Pence be?

60 MINUTES OVERTIM
Trump OK wi Pence's vote f war, but not Clinton's
60 MINUTES OVERTIM
Mike Pence on waging war ag radical Islam
60 MINUTES OVERTIM
Did Trump co
Recent Segments
60 Minutes Presents: A Fro Row Seat
Enhancing the
Finding Refuge
Avalanche

But there are signiﬁcant areas in terms of values and policy where he has differed with Mr. Trump in the past.
Siddiqui Decl. -- Exhibit 22
http://www.cbsnews.com/news/60­minutes­trump­pence­republican­ticket/

Barack Obama 60 MINUTES ALL ACCESESight Years in
White1/1H6ouse

2/8/2017Case 1:17-cv-00116-LMB-TCB TDheoRceupmubleicnant T6ic1ke-t2: T2rumFp ialenddPe0n2ce/0­ 8C/B1S7NewPs age 2 of 14 PageID# 567

We had the chance to ask the two of them about that in their ﬁrst and only interview

White House

together, yesterday afternoon in New York, in Trump's three-story penthouse apartment in

the Trump Tower.

Lesley Stahl: First of all, Governor Pence, congratulations.

Mike Pence: Thank you.

"It's very, very humbling and I couldn't be more honored to have the opportunity to run with, and serve with, the next president of the United States."

Lesley Stahl: This has probably come as a huge, life-changing moment for you.
Mike Pence: It has. It's very, very humbling and I couldn't be more honored to have the opportunity to run with, and serve with, the next president of the United States.
Lesley Stahl: Before we actually talk about the politics, you know, there've been so many major world events very recently, in the last week. I don't know if you can remember the last time we have seen a world this much in chaos. You even said, "It's spinning apart." Are you ready for this world that we are facing today?

60 MINUTES OVERTIME
Mike Pence on waging war against radical Islam

Donald Trump: We're both ready. I've no doubt. We need toughness. We need strength. Obama's weak, Hillary's weak. And part of it is that, a big part of it. We need law and order. We need strong borders.
Lesley Stahl: But all reactions to what's been going on aren't muscular. For example, look what happened in Turkey. There was a military coup in a democratic country; a NATO ally. How would you respond to that?
Donald Trump: Well, as a president, I'm going to be-- you know, they've been an ally and I stay with our allies. They have been an ally. But that was a quick coup. I was actually surprised to see how well it was handled. And you know who really handled it? The people. So, I mean, we can say what we want, but the people handled it. When they surrounded the army tanks and without the people, you would've never had it. The military would've taken over.
"We're both ready. I've no doubt. We need toughness. We need strength. Obama's weak, Hillary's weak."
Mike Pence: But I truly do believe that the larger issue here is declining American power in the world. I truly do believe that history teaches that weakness arouses evil and whether it be the horriﬁc attack in France, the inspired attacks here in the United States, the instability in Turkey that led to a coup. I think that is all a result of a foreign policy of Hillary Clinton and Barack Obama that has led from behind and that has sent an inexact, unclear message about American resolve. One of the reasons why I said yes in a heartbeat to run with this man, is because he embodies American strength, and I know that he will provide that kind of broad-shouldered American strength on the global stage as well.
Lesley Stahl: Let's talk about what happened in Nice, horrendous, carnage, horrible--
Donald Trump: Horrible.
Siddiqui Decl. -- Exhibit 22
http://www.cbsnews.com/news/60­minutes­trump­pence­republican­ticket/

60 MINUTES ALL ACCESS 2/16

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Lesley Stahl: Horrible. You said you would declare war against ISIS. What exactly do you have--
Donald Trump: It is war. By the way, it is war.
Lesley Stahl: No, but does that-- when you say, "Declare war," do you want to send American troops in there? Is that what you mean?
Donald Trump: Look, we have people that hate us. We have people that want to wipe us out. We're gonna declare war against ISIS. We have to wipe out ISIS. These are people that--
60 MINUTES OVERTIME
Did Trump consider his daughter for vice president?

Lesley Stahl: With troops on the ground?
Donald Trump: I am going to have very few troops on the ground. We're going to have unbelievable intelligence, which we need; which, right now, we don't have. We don't have the people over there. We are going to use--
Lesley Stahl: You want to send Americans--
Donald Trump: Excuse me-- and we're going to have surrounding states and, very importantly, get NATO involved because we support NATO far more than we should, frankly, because you have a lot of countries that aren't doing what they're supposed to be doing. And we have to wipe out ISIS. And speaking of Turkey, Turkey is an ally. Turkey can do it by themselves. But they have to be incentivized. For whatever reason, they're not. So we have no choice.
Lesley Stahl: But I still don't know if you're going to send troops over--
Donald Trump: Very little. I'm gonna--
Lesley Stahl: But declare war--
Donald Trump: --get neighboring states and I'm going to get-- we are going to get NATO; we're going to wipe 'em out. We're gonna--
Lesley Stahl: But declare war?
Mike Pence: Lesley--
Lesley Stahl: What does that mean--
Mike Pence: This is-- this is the kind-- this is the kind of leadership that America needs and it--
Lesley Stahl: But what--
Mike Pence: -and it begins with deciding to destroy the enemies of our freedom.
Lesley Stahl: How?
Mike Pence: And how we do that? I have every conﬁdence. You-- you remember I served on the Foreign Affairs Committee. And I'm very conﬁdent that when Donald Trump becomes president of the United States, he'll give a directive to our military commanders, bring together other nations, and we will use the enormous resources of the United States to destroy that enemy.

Siddiqui Decl. -- Exhibit 22
http://www.cbsnews.com/news/60­minutes­trump­pence­republican­ticket/

60 MINUTES ALL ACCESS 3/16

2/8/2017Case 1:17-cv-00116-LMB-TCB TDheoRceupmubleicnant T6ic1ke-t2: T2rumFp ialenddPe0n2ce/0­ 8C/B1S7NewPs age 4 of 14 PageID# 569
60 MINUTES OVERTIME
Trump and Pence's shared values

Donald Trump: Now look, we are going to get rid of ISIS, big league. And we're going to get rid of 'em fast. And we're going to use surrounding states. We're going to use NATO, probably. And we're going to declare war. It is war. When the World Trade Center comes tumbling down, with thousands of people being killed, people are still-- I have friends that are still--
Lesley Stahl: But we did go to war, if you remember. We went to Iraq.
Donald Trump: Yeah, you went to Iraq, but that was handled so badly. And that was a war-by the way, that was a war that we shouldn't have entered because Iraq did not knock down-excuse me
Lesley Stahl: Your running mate--
Donald Trump: Iraq did not--
Lesley Stahl: --voted for it.
Donald Trump: I don't care.
Lesley Stahl: What do you mean you don't care that he voted for?
Donald Trump: It's a long time ago. And he voted that way and they were also misled. A lot of information was given to people.
Lesley Stahl: But you've harped on this.
Donald Trump: But I was against the war in Iraq from the beginning.
Lesley Stahl: Yeah, but you've used that vote of Hillary's that was the same as Governor Pence as the example of her bad judgment.

60 MINUTES OVERTIME
Trump OK with Pence's vote for Iraq war, but not Clinton's
Donald Trump: Many people have, and frankly, I'm one of the few that was right on Iraq.
Lesley Stahl: Yeah, but what about he--
Donald Trump: He's entitled to make a mistake every once in a while.
Lesley Stahl: But she's not? OK, come on--
Donald Trump: But she's not--
Lesley Stahl: She's not?
Donald Trump: No. She's not.
Lesley Stahl: Got it.
Lesley Stahl: I have to move on or we're never gonna ﬁnd out why he chose you. Why did you pick him? You had other candidates--
Donald Trump: OK, I did. I had a lot of people that wanted it; a lot more people than anybody--
Siddiqui Decl. -- Exhibit 22
http://www.cbsnews.com/news/60­minutes­trump­pence­republican­ticket/

60 MINUTES ALL ACCESS 4/16

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Lesley Stahl: That came to you and begged you for it?

Donald Trump: That called me and came to me and wanted it badly. And you know, the press didn't report that. The press said, "Well, maybe he's having hard time picking--"

Lesley Stahl: Well, what about the governor? Did he want it like that?

Donald Trump: I actually brought it up to him.

Lesley Stahl: OK.

Donald Trump: I got to know him during the-- when I was in Indiana during the primaries, and I did very well in Indiana, like I did just about everywhere else in all fairness. But-- I got to know him very well and I gained great respect for him. And I looked at the numbers, meaning the ﬁnancials, which we would say in business. But I looked at the numbers. Unemployment? What a great job he did. Jobs? What a great job he did. Triple-A rating on his bonds.

Lesley Stahl: --but you went to him and said--

Donald Trump: I did--

Lesley Stahl: Would you want to be considered--

Donald Trump: I broached it.

Lesley Stahl: He didn't -- And then he said, "I-- I really want it." So why did you pick him?

Donald Trump: I would say that he thought about it a little bit. And about two seconds later, he called me, with his incredible wife, and said--

Lesley Stahl: That I'd like to be-- but what--

Donald Trump: Like many others.

Lesley Stahl: How does he help you? How does he help you win in terms of groups of people? And what is your weakness that he compensates for and so forth--

Donald Trump: Well, I went for the quality individual rather than I'm gonna win a state, because I'm doing very well in Indiana, and I guess I'm a lot up. And I think I'm gonna win Indiana. I have a great relationship and Bobby Knight helped me so much with Indiana. Indiana's a great place; great state.

Lesley Stahl: Why didn't you pick him? No, I'm joking -- moving on.

Donald Trump: He would've been very good. But he's a terriﬁc guy. But-- but I really like him as an individual.

Lesley Stahl: So you must've considered, obviously, by the reaction to your choice, a lot of the conservatives are very happy.

Donald Trump: Very happy.

Lesley Stahl: Was that part of the--

Donald Trump: Yes, it was party unity. I'm an outsider. I am a person that used to be establishment when I'd give them hundreds of thousands of dollars. But when I decided to run, I became very anti-establishment because I understand the system--

Lesley Stahl: Is he establishment?

Donald Trump: --than anybody else. He's very establishment, in many ways, and that's not a bad thing. But I will tell you--

Lesley Stahl: That's kind of interesting --

Donald Trump: --I have seen more people that, frankly, did not like me so much, and now
they're saying, "What a great pick." You see the kinda reaction. He has helped bring the party
Siddiqui Decl. -- Exhibit 22
http://www.cbsnews.com/news/60­minutes­trump­pence­republican­ticket/

60 MINUTES ALL ACCESS 5/16

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together. I understand. Look, I got more votes than anybody, but I also understand there's a faction--

Lesley Stahl: Is it already uniﬁed, do you think?

Donald Trump: I think it's very close to uniﬁed. And I will say--

Lesley Stahl: Just because of this pick?

Donald Trump: No. I think it's be-- I think it was much more uniﬁed than people thought. You saw that with the recent vote where we won in a landslide. You saw that with the big vote, the primary vote. I think it's far more uniﬁed than the press lets on. But having Governor Mike Pence has really-- people that I wasn't necessarily liking or getting along are loving this pick, because they have such respect for him.

Lesley Stahl: And that was--

Donald Trump: And the party unity is OK. You know, I think it's OK to say I picked somebody, because I-- as one of the things. But I really believe the main reason I picked him is the incredible job he's done. Just look at the economics of Indiana--

Lesley Stahl: Indiana--

Donald Trump: --and what's going on.

Lesley Stahl: But what about the chemistry between you two? You don't really know each other that well. You're -- at least I've read, a very low-key, very religious, you're a brash New Yorker--

Donald Trump: Religious.

Lesley Stahl: Religious?

Donald Trump: Religious--

Lesley Stahl: Are you?

Donald Trump: Yea, religious.

Lesley Stahl: --you wouldn't--

Donald Trump: Hey, I won the evangelicals. The evangelicals--

Lesley Stahl: That doesn't--

Mike Pence: You know, nobody thought--

Donald Trump: --well, I think it means a lot. I don't think they think I'm perfect, and they would get up and they would say, "You know, he's not perfect," but--

Lesley Stahl: They'd point to the --

Donald Trump: --they like me--

Lesley Stahl: --divorces--

Donald Trump: --but I won-- I won states with evangelicals that nobody thought I'd even come close to--

Lesley Stahl: Well, that's true--

Donald Trump:-and I won--

Lesley Stahl: --so you didn't (UNINTEL)--

Donald Trump: --with landslides--

Lesley Stahl: --need him for the evangelicals?
Siddiqui Decl. -- Exhibit 22
http://www.cbsnews.com/news/60­minutes­trump­pence­republican­ticket/

60 MINUTES ALL ACCESS 6/16

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Donald Trump: I think it helps. But I don't think I needed him, no, because--I won with evangelicals.

Mike Pence: But I think we have more in common--

Lesley Stahl: Yeah, tell me--

Mike Pence: --than--

Lesley Stahl: --what you think you have in common.

Donald Trump: --what might be immediately obvious.

Lesley Stahl: Besides issues. Values and things like that.

Donald Trump: I think we will have very, very good chemistry. I feel that. And I can feel that pretty early on. I don't think you need to be with somebody for two years to ﬁnd that out. My feeling is-

Lesley Stahl: Your gut feeling.

Donald Trump: I knew him during the primaries, during many trips to Indiana, I'd be with him. I think we have a great chemistry.

Lesley Stahl: I want to ask you though about something you've said about negative campaigning.

Donald Trump: Yeah.

Lesley Stahl: You said negative campaigning is wrong, and a campaign ought to demonstrate the basic decency of the candidate.

Mike Pence: Right.

Lesley Stahl: With that in mind, what do you think about your running mate's campaign and the tone and the negativity of it?

Mike Pence: I think this is a good man who's been talking about the issues the American people care about.

Lesley Stahl: But name-calling?

Mike Pence: In that--

Lesley Stahl: "Lyin' Ted?"

Mike Pence: --in the essay that I wrote a long time ago, I said campaigns oughta be about something more important than just one candidate's election. And-- and this campaign and Donald Trump's candidacy has been about the issues the American people care about.

Lesley Stahl: --but what about--

Donald Trump: Lesley, Lesley--

Lesley Stahl: --the negative side? He apologized for being a negative--

Donald Trump: We're different people. I understand that. I'll give you an example. Hillary Clinton is a liar. Hillary Clinton-- that was just proven--

Lesley Stahl: That's--

Donald Trump: --last week.

Lesley Stahl: --that's negative--

Donald Trump: Hillary Clinton--

Lesley Stahl: By the way --
Donald Trump: --you better believe it. Hillary Clinton is a crook.
Siddiqui Decl. -- Exhibit 22
http://www.cbsnews.com/news/60­minutes­trump­pence­republican­ticket/

60 MINUTES ALL ACCESS 7/16

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Lesley Stahl: That's negative--

Donald Trump: I call her "Crooked Hillary." She's crooked Hillary. He won't-- I-- I don't-- I didn't ask him to do it, but I don't think he should do it because it's different for him.

Lesley Stahl: But-- he--

Donald Trump: He's not that kind of a--

Lesley Stahl: He probably--

Donald Trump: --person. We're different people--

Lesley Stahl: --don't you think he--

Donald Trump: --to me she's--

Lesley Stahl: --thinks that's--

Donald Trump: --Crooked Hillary.

Lesley Stahl: --wrong?

Donald Trump: I don't think he should use that term. I've never said one way or the other. But to him, I don't think it would sound right, but he will say how dishonest she is by going over the facts.

Lesley Stahl: But would you go to him-- let's say you won, you're the vice president, your oﬃce is, I assume, down the hall, and you go in and you say, "You know, you shouldn't be saying-- name-calling." Would you do that? Would you go in and say, "You crossed the line, I think you should apologize?" Would you do something like that?

Mike Pence: Look, I--

Lesley Stahl: He's laughing.

Mike Pence: --it's probably-- it's-- it's probably--

Lesley Stahl: It's OK.

Mike Pence: --obvious to people that our styles are different. But I promise you, our vision is exactly the same.

Lesley Stahl: No, but would you--

Mike Pence: And let me be--

Lesley Stahl: --will--

Mike Pence: --clear--

Lesley Stahl: --will you answer that? Would you go in --

Mike Pence: Well the-- one of the things I found out about this man is he appreciates candor. And--

Lesley Stahl: So you would go in--

Mike Pence: --I-- I--

Donald Trump: I'd like him to if he thinks I was doing something wrong--

Lesley Stahl: Would you listen--

Donald Trump: --just say--

Lesley Stahl: --to him--

Mike Pence: Yeah.

Lesley Stahl: --if he said you--

Siddiqui Decl. -- Exhibit 22

http://www.cbsnews.com/news/60­minutes­trump­pence­republican­ticket/

60 MINUTES ALL ACCESS 8/16

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Donald Trump: Absolutely--

Lesley Stahl: --crossed the line.

Donald Trump: --absolutely. I might not apologize. You know, you said apologize, but--

Lesley Stahl: I did say apologize.

Donald Trump: But I might not do that, but I would absolutely want him to come in-- if he thinks I'm doing something wrong, Mike, I would want him to come in and say, really, you're doing, you gotta-- and that's OK. I accept that from my consultants and my people and if Mike came in and told me, you know, "I think you should do this or that--

Lesley Stahl: Back off that.

Donald Trump: I would listen and very likely listen to him.

Lesley Stahl: Do you think John McCain is not a hero because he was captured?

Mike Pence: I have a great deal of respect for John McCain, and--

Lesley Stahl: Do you think he went too far?

Donald Trump: You could say yes. I-- that's OK.

Donald Trump: That one, you could say yes, I mean, you're not--it's ﬁne - hey, look, I like John McCain. But we have to take care of our vets.

Lesley Stahl: No, but I wanna know if--

Donald Trump: OK, but I'm just--

Lesley Stahl:-Mr. Pence would go in and--

Donald Trump:-I'm just saying, that's--

Lesley Stahl: --say to you--

Donald Trump: --why not that many people are that upset--

Lesley Stahl: What are you -- what did you say? You know, would you do something like that?

Mike Pence: I promise you that when the circumstances arise where I have a difference on policy or on presentation, I have-- I can tell you in my heart, I know-- I would have no hesitation, were I privileged to be vice president, to walk into the president's oﬃce, close the door, and share my heart. And I also know this good man would listen, and has the leadership qualities to draw from the people around him.

Lesley Stahl: Let's talk about-- some of the issues. Because there seems to be some daylight between you two, and we can just tick-- go quickly through these. Immigration. Mr. Trump, you have called for a temporary ban on Muslims entering the United States. Do you agree with that?

Mike Pence: I do. In fact, in Indiana we suspended the Syrian refugee program in the wake of the terrorist attack. We have no higher priority than the safety and security of the people of this country, and Donald Trump--

Lesley Stahl: Now--

Mike Pence: --is right to--

Lesley Stahl: --in December--

Mike Pence: --articulate that view.

Lesley Stahl: --in December you tweeted, and I quote you, "Calls to ban Muslims from entering the U.S. are offensive and unconstitutional."
Siddiqui Decl. -- Exhibit 22
http://www.cbsnews.com/news/60­minutes­trump­pence­republican­ticket/

60 MINUTES ALL ACCESS 9/16

2/8/201C7 ase 1:17-cv-00116-LMB-TCB DThoecRuepmubelincatn6Ti1ck-e2t:2TrumFpilaendd P0e2nc/e0­8C/1BS7NePwsage 10 of 14 PageID# 575
Donald Trump: So you call it territories. OK? We're gonna do territories. We're gonna not let people come in from Syria that nobody knows who they are. Hillary Clinton wants 550 percent more people to come in than Obama--

Lesley Stahl: So you--

Donald Trump: --who doesn't know what he's--

Lesley Stahl: --so you're changing--

Donald Trump: --so we're going to--

Lesley Stahl: --your position.

Donald Trump: --no, I-- call it whatever you want. We'll call it territories, OK?

Lesley Stahl: So not Muslims?

Donald Trump: You know-- the Constitution -- there's nothing like it. But it doesn't necessarily give us the right to commit suicide, as a country, OK? And I'll tell you this. Call it whatever you want, change territories, but there are territories and terror states and terror nations that we're not gonna allow the people to come into our country. And we're gonna have a thing called "Extreme vetting." And if people wanna come in, there's gonna be extreme vetting. We're gonna have extreme vetting. They're gonna come in and we're gonna know where they came from and who they are.

Mike Pence: You just asked me--if I'm comfortable with that--

Mike Pence: --and I am. What-- what Donald--

Lesley Stahl: You're on the same--

Mike Pence: Which--

Lesley Stahl: --page on that?

Mike Pence: --clearly-- clearly this man is not a politician. He doesn't speak like a politician--

Lesley Stahl: He's done pretty well.

Mike Pence: --he-- he speaks from his--

Mike Pence: --heart--

Donald Trump: Is that a good thing? I think that's a good thing.

Mike Pence: --he speaks from his heart. And--

Lesley Stahl: Well, I--

Donald Trump: Well, I-- I speak from my heart and my brain. Just so we understand.

Mike Pence: Right.

Donald Trump: This is (points to head) maybe more important.

Lesley Stahl: Let's go to trade. You have voted for every trade agreement when you were in Congress--

Mike Pence: I have.

Lesley Stahl: --that came before you. You're supporting the Trans-Paciﬁc partnership that Mr. Trump says would rape this country. Now, are you gonna be able to go out and campaign in support of his protectionist positions?

Mike Pence: I support free trade, and so does Donald Trump.

Lesley Stahl: Not really--
Donald Trump: I do. I'm free trade, but I wanna make good deals. No, no, I'm all for free--
Siddiqui Decl. -- Exhibit 22
http://www.cbsnews.com/news/60­minutes­trump­pence­republican­ticket/

60 MINUTES ALL ACCESS 10/16

2/8/201C7 ase 1:17-cv-00116-LMB-TCB DThoecRuepmubelincatn6Ti1ck-e2t:2TrumFpilaendd P0e2nc/e0­8C/1BS7NePwsage 11 of 14 PageID# 576
Lesley Stahl: You've talked

Donald Trump: --trade. You--

Lesley Stahl: --about--

Donald Trump: --know I'm not an isolationist. A lot of people think because I wanna make good deals--

Lesley Stahl: You wanna undo--

Donald Trump: --these are stupid people--

Lesley Stahl: --these--

Donald Trump: --wait a minute Lesley, these are stupid people that think that. I wanna make great deals for our country. We have deals like the deal signed by Bill Clinton, NAFTA, one of the worst things that ever happened to this country in terms of trade, in terms of economics.

Lesley Stahl: What do you think about NAFTA?

Mike Pence: You're absolutely right. I've supported free trade throughout my career. But--

Lesley Stahl: OK.

Mike Pence: --the truth of the matter is NAFTA has provisions in that law that call for it to be reviewed, that have never been-- never been-- initiated. What-- what I hear Donald Trump saying is let's-- let's look at these trade agreements and reconsider them and renegotiate them. And--

Lesley Stahl: And you're OK with--

Mike Pence: --with regard to--

Lesley Stahl: --that?

Mike Pence: --and with regard to other trade agreements, we've talked about this. I-- I really do believe when the American people elect one of the best negotiators in the world as president of the United States, we would do well--

Donald Trump: We're gonna bring back jobs--

Mike Pence: --to negotiate individually with countries.

Donald Trump: We're gonna bring back our jobs, we're gonna bring back our wealth, we're gonna take care of our people. Very simple.

Lesley Stahl: OK. More issues. Waterboarding. Mr. Trump wants to bring back waterboarding, and quote, "A hell of a lot more." Are you comfortable with bringing back waterboarding?

Mike Pence: I don't think we should ever tell our enemy what our tactics are.

Lesley Stahl: But what about that? What--

Mike Pence: I don't--

Lesley Stahl: --about-- he's publicly--

Donald Trump: I like that answer.

Lesley Stahl: --said that--

Mike Pence: I don't think we should-- I-- I think--

Lesley Stahl: But are you OK with the idea of--

Mike Pence: --I think--

Lesley Stahl: --waterboarding?
Siddiqui Decl. -- Exhibit 22
http://www.cbsnews.com/news/60­minutes­trump­pence­republican­ticket/

60 MINUTES ALL ACCESS 11/16

2/8/201C7 ase 1:17-cv-00116-LMB-TCB DThoecRuepmubelincatn6Ti1ck-e2t:2TrumFpilaendd P0e2nc/e0­8C/1BS7NePwsage 12 of 14 PageID# 577
Mike Pence: --I think enhanced interrogation saved lives.

Lesley Stahl: And you're OK with--

Mike Pence: I--

Lesley Stahl: --that?

Mike Pence: --what I'm OK with-- what I'm OK with is protecting the American people. What I'm OK with is when people have the intent to come to this country and take American lives, that-- that we are-- that we are prepared to do what's necessary to gain the information to protect the people of this country--

Donald Trump: But Lesley, let's step further. We have an enemy, ISIS and others, who chop off heads, who drown people in steel cages and we can't do waterboarding--

Lesley Stahl: OK, but, but why--

Donald Trump: OK, they're not playing--

Lesley Stahl: --would you use their--

Donald Trump: --under -- because you know--

Lesley Stahl: --techniques?

Donald Trump: --what, those techniques get information. I don't care what anyone says.

Lesley Stahl: Are you agreeing with him?

Mike Pence: I am--

Donald Trump: And get information--

Mike Pence: --what I--

Donald Trump: --using those things.

Mike Pence: --what I can tell you is enhanced information gleaned information that saved American lives and, I was informed, prevented incoming terrorist attacks on this country from being successful. The American people expect the president of the United States to be prepared to support action to protect the people of this nation, and I know Donald Trump will.

Lesley Stahl: Have you answered me?

Mike Pence: I have.

Lesley Stahl: Let's talk about the convention. You're a showman. What are you going to do to keep it from being a snooze-o-rama, as some have happened.

Donald Trump: Well, I think we're gonna have an exciting time. We've got some wonderful speakers. We have some very talented people. My family's gonna speak.

Lesley Stahl: Worried about violence outside? This is an open-carry state. People can carry guns. There'll be demonstrators. They've already said they're going to carry assault riﬂes. Are you worried? And would you call on people not to carry their guns?

Donald Trump: I have great faith in law enforcement. If they don't want to take their guns, I think that's fantastic. But I have great conﬁdence in law enforcement. The police like Donald Trump. It's law and order. And I have great conﬁdence that they will do a great job.

Lesley Stahl: There's no question in anybody's mind that you want to win this election. I don't think anyone would doubt that. But what about being president? Do you really want to be president of the United States?

Donald Trump: I want to make America great again. Honestly. I want to make Am-- I'm not
doing this because-- I'm sacriﬁcing tremendous things. I could be doing other things. It's
Siddiqui Decl. -- Exhibit 22
http://www.cbsnews.com/news/60­minutes­trump­pence­republican­ticket/

60 MINUTES ALL ACCESS 12/16

2/8/201C7 ase 1:17-cv-00116-LMB-TCB DThoecRuepmubelincatn6Ti1ck-e2t:2TrumFpilaendd P0e2nc/e0­8C/1BS7NePwsage 13 of 14 PageID# 578
lovely to sit down with you and be grilled. That's okay. But I could be doing other things right now. And I have some of the greatest properties in the world. I could be out there--

Lesley Stahl: Would you rather be out there?

Donald Trump: I tell you what. I've really enjoyed this process. I've gotten to know the people of this country. I've gotten to know places that I didn't know, that I read about, but I didn't know. I've also gotten to see the problems. And it's a movement.

Donald Trump: Now, when you ask me the question, do I wanna be?

Lesley Stahl: Yeah.

Donald Trump: I wanna be for one reason. I wanna make America safe again, and I wanna make America great again. That's why I'm doing this. And I love it.

Lesley Stahl: And you wanna govern? I mean it--

Donald Trump: I do wanna govern.

Lesley Stahl: It is different--

Donald Trump: I do--

Lesley Stahl: --building a movement--

Donald Trump: I govern my-- I--

Lesley Stahl: -and than-- going in there with the nitty gritty and--

Lesley Stahl: --all that tough decision making.

Donald Trump: Sure. No, no I wanna govern

Lesley Stahl: OK, this is my absolute ﬁnal question.

Donald Trump: OK.

Lesley Stahl: You're not known to be a humble man. But I wonder--

Donald Trump: I think I am, actually humble. I think I'm much more humble than you would understand.

Lesley Stahl: As you think about-- prospect of running this country in these tough times where the world is spinning apart-- are you awed? Are you intimidated? Are you humbled by the enormity of this?

Donald Trump: You just said it best.

Mike Pence: Mmm.

Donald Trump: In a world that's spinning apart. That's what I'm thinking of. I'm not thinking of, "Oh gee, isn't this wonderful? Isn't this great what I've done?" I've had people that said, "It doesn't matter if you win or lose, what you've done has never been done before. You're gonna go down in the history books." You know what I say to 'em?" I say, "You're wrong." I will consider it, 'cause I funded my own primaries, I'm funding now a lot of this campaign. I'm putting in, you know-- I've spent $55 million in the primaries. I'm spending a fortunate now. I'll tell you, it is spinning. Our world is spinning out of control. Our country's spinning out of control. That's what I think about. And I'll stop that.

Lesley Stahl: Not-- humbled or-- awe.

Mike Pence: I can say to 'ya-- what--

Lesley Stahl: Go ahead.

Mike Pence: Talking with him in private settings, I love the words you used because this man
is awed with the American people, and he is not intimidated by the world. And Donald
Trump, this good man, I believe, will be a greaStipdrdesiqidueintDoefcthl.e-U-nEitxehd iSbtaitte2s.2
http://www.cbsnews.com/news/60­minutes­trump­pence­republican­ticket/

60 MINUTES ALL ACCESS 13/16

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Donald Trump: I love what he just said.
© 2016 CBS Interactive Inc. All Rights Reserved.
Lesley Stahl
One of America's most recognized and experienced broadcast journalists, Lesley Stahl has been a 60 Minutes correspondent since 1991.
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1 LIKE / REPLY
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Siddiqui Decl. -- Exhibit 22
http://www.cbsnews.com/news/60­minutes­trump­pence­republican­ticket/

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 Case 1:17-cv-00116-LMB-TCB Document 63 Filed 02/08/17 Page 1 of 28 PageID# 581

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

The Commonwealth of Virginia, Osman Nasreldin, and Sahar Kamal Ahmed Fadul,

Intervenor-Petitioners,

v.
Donald Trump, the U.S. Department of Homeland Security, U.S. Customs and Border Protection, John Kelly, Kevin K. McAleenan, and Wayne Biondi,

Case 1:17-cv-00116-LMB-TCB

Respondents.

AMICUS-CURIAE BRIEF OF THE ANTI-DEFAMATION LEAGUE IN SUPPORT OF INTERVENOR-PETITIONERS

Of Counsel:
John B. Harris Jeremy Goldman Caren Decter Jessica Smith Rayna Lopyan Lily Landsman-Roos Lakendra Barajas Frankfurt Kurnit Klein & Selz, P.C. 488 Madison Avenue New York, New York 10022
Steven M. Freeman Lauren A. Jones Melissa Garlick Michael Lieberman Anti-Defamation League 605 Third Avenue New York, New York 10158
Doron F. Ezickson Anti-Defamation League 1100 Connecticut Avenue, Northwest, Suite 1020 Washington, District of Columbia 20036

Joshua David Rogaczewski (Va. Bar No. 65880) (jrogaczewski@mwe.com) McDermott Will & Emery LLP The McDermott Building 500 North Capitol Street, Northwest Washington, District of Columbia 20001-1531 202.756.8195 202.591.2757 fax
Counsel to the Anti-Defamation League

Case 1:17-cv-00116-LMB-TCB Document 63 Filed 02/08/17 Page 2 of 28 PageID# 582
TABLE OF CONTENTS STATEMENT OF INTEREST....................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 ARGUMENT .................................................................................................................................. 3 I. America’s Aspirations as a Refuge for the Oppressed. ...................................................... 3 II. America Is at Its Best When It Honors Its Commitment to Its Core Values. ..................... 7 III. When America Closed Its Doors and Allowed Its Core Values to be
Compromised, the Country Later Looked Back in Shame. .............................................. 11 A. The St. Louis and Jewish Refugees During the Holocaust ................................... 11 B. The Chinese Exclusion ......................................................................................... 15 C. The Japanese Internment....................................................................................... 18 CONCLUSION............................................................................................................................. 20 APPENDIX................................................................................................................................... 22

Case 1:17-cv-00116-LMB-TCB Document 63 Filed 02/08/17 Page 3 of 28 PageID# 583
TABLE OF AUTHORITIES Cases League of Women Voters of N. Carolina v. North Carolina,
769 F.3d 224 (4th Cir. 2014) .....................................................................................................3 Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008).......................................................................................................................3 Statutes 50 U.S.C. § 4202......................................................................................................................19, 20 Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882) (repealed 1943) ..........................15, 16, 17, 18 Civil Liberties Act, 50 U.S.C. § 4201 et seq............................................................................19, 20 Displaced Persons Act of 1948 (Pub.L. 80–774).............................................................................7 Geary Act, ch. 60, 27 Stat. 525 (1892) (repealed 1943) ................................................................17 Immigration and Nationality Act of 1965 (H.R. 2580; Pub.L. 89–236, 79 Stat.
911, enacted June 30, 1968).......................................................................................................9 Refugee Act of 1980 (Public Law 96-212)......................................................................................9 Scott Act (1888), ch. 1064, 22 Stat. 504 (1888) (repealed 1943) ..................................................16

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STATEMENT OF INTEREST The Anti-Defamation League (“ADL”) respectfully submits this brief as amicus-curiae in support of the relief sought by the Commonwealth of Virginia and the other intervenorpetitioners 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 grant Intervenor-Petitioners’ motion for a preliminary injunction enjoining enforcement of certain 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, ADL provides materials, programs and services to combat anti-Semitism and all forms of bigotry. Because of its history fighting discrimination, including 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 barring entry into the United States of refugees, as well as persons coming from seven majority-Muslim nations.2
1 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 its counsel, made any monetary contribution toward the preparation or submission of this brief.
2 ADL is aware that the parties dispute whether the Executive Order constitutes a ban of Muslims as opposed to 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.

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BACKGROUND The United States is a nation dedicated to the ideals of equality, liberty and justice. (See infra Section I.) Adhering to these principles under changing domestic and international circumstances often is a work in progress. Throughout the history of the United States, and frequently with respect to immigration, our ideals have been tested. Sometimes the nation rises to meet the challenge, upholding the values that make America exceptional. (See infra Section II.) At other times, when prejudice and fear predominate over reason and compassion, we falter, often with devastating consequences. (See infra Section III.) We turned our backs on the St. Louis, a ship with nearly 1,000 Jews fleeing from Nazi Germany, condemning hundreds of them to their deaths; we passed laws that overtly excluded and discriminated against the Chinese; and we rounded up more than 100,000 Japanese Americans and interned them in prison camps in the 1940s. In each instance, when we later realized that we had strayed from our principles, we were left to apologize to the people who suffered, or to their descendants, or to the memory of those who perished without descendants, in each case promising to learn from our mistakes and not to repeat them. 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 dragged from his prison cell and lynched in 1915.3 ADL regularly
3 See Wendell Rawls, Jr., After 69 Years of Silence, Lynching Victim is Cleared, N.Y. TIMES, Mar. 8, 1982. 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 posthumously pardoned Frank on the grounds that the State failed to protect him while he was in its custody. See STATE BOARD OF PARDONS AND PAROLES, Pardon of Leo Frank (Mar. 11, 1986), http://www.gpb.org/files/georgiastories/nsouthfrank176.jpg. See also Leonard Dinnerstein, Leo Frank Case, NEW GEORGIA ENCYCLOPEDIA,
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confronts discrimination against perceived outsiders, foreigners and strangers. As an organization founded by immigrants, as an organization sworn to protect the interests of religious and ethnic minorities, ADL believes that when our nation’s values are threatened, we are dutybound to look back at the founding principles that propelled this nation of immigrants – in the hope that future generations can celebrate our resolve.
ARGUMENT As the U.S. Supreme Court has held, a petitioner seeking a preliminary injunction must demonstrate that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).4 With this brief, ADL seeks to provide important insight regarding how the Executive 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. ADL 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. 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
http://www.georgiaencyclopedia.org/articles/history-archaeology/leo-frank-case (last visited Feb. 7 2017).
4 See also League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014) (citing Winter, supra).
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upon a hill,” with the entire world watching.5 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.
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 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.”7
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
5 John Winthrop, A Model of Christian Charity (1630). 6 Thomas Paine, Common Sense (Jan. 10, 1776). 7 Declaration of Independence (July 4, 1776).
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to Virginia’s General Assembly that would have levied a modest tax to support Christian education.8 Madison warned that any measure, no matter how slight, that gave a preference to one religion over another would constitute “a dangerous abuse of power” and would betray the vision of America as a shining 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 (sic) in their due extent, may offer a more certain repose from his Troubles.9 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.10 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
8 James Madison, Memorial and Remonstrance against Religious Assessments ¶ 9 (Jun. 20, 1785).
9 Id. (emphasis added). 10 Virginia’s Statute for Religious Freedom (Jan. 16, 1786)
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“meant to 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.”11
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.”12 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.”13
The vision of the “shining city on the hill” has also inspired poets. In 1856, Walt Whitman wrote: “These States are the amplest poem, here is not merely a nation but a teeming Nation of nations.”14 Emma Lazarus’ immortal sonnet, enshrined on the pedestal of the Statue of Liberty, urges “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!”15
These values have endured to the modern day. 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 subject to religious persecution and those facing other overpowering hardship. He
11 Thomas Jefferson, Autobiography, Works 1:71 (1821). 12 Abraham Lincoln, Letter to Joshua F. Speed (Aug. 24, 1855). 13 Id. 14 Walt Whitman, Preface to Leaves of Grass (1855). 15 Emma Lazarus, The New Colossus (1883).
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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.”16
On the eve of his election as President in 1980, Ronald Reagan also took inspiration from Winthrop’s vision of America:
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.17 II. America Is at Its Best When It Honors Its Commitment 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.”18 At its best, the United States has been a beacon of hope for refugees from war-torn countries, victims of religious persecution, natural disasters or other emergencies, fulfilling what President Kennedy described in A 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.”19 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 had done hundreds of years
16 John F. Kennedy, A Nation of Immigrants 7 (Harper Perennial, January 2008). 17 Ronald Reagan, Election Eve Address (Nov. 3, 1980). 18 Ronald Reagan, Farewell Address to the Nation, (Jan. 11, 1989). 19 Kennedy, supra note 16 at 46.
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earlier.20 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 World War II.21
These new laws 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 Dietrich, Albert Einstein, Enrico Fermi, Henry Kissinger, Raphael Lemkin, Thomas Mann, 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 seeking freedom from the Soviet Union, Cuba, Hungary, Poland, and Yugoslavia, as well as those fleeing Southeast Asia after the Vietnam 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.22 Examples of notable refugees that
20 David W. Haines, “Learning From our Past: The Refugee Experience in the United States,” AMERICAN IMMIGRATION COUNCIL, http://www.americanimmigrationcouncil.org/research/refugee-experience-united-states (last visited Feb. 7, 2017).
21 Id. In so doing, as set forth below, the United States began the process of making amends for the tragic consequences of its turning away Jewish refugees during World War II, dooming many of them to death or excruciating years in concentration camps.
22 Haines, supra note 20.
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came to the United States from this period include: Sergey Brin, Joseph Brodsky, Gloria Estefan, Milos Forman, Wyclef Jean, Miriam Makeba, Thomas Peterffly, Regina Spektor and David Tran.
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 South America, Asia, Africa, the Middle East, and Southern and Eastern Europe, abolishing the previous quotas that has been set based on national origin. 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 JacksonVanik 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.
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;23 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
23 William J. Clinton, “Statement on Signing the Hmong Veterans Naturalization Act of 2000” (May 26, 2000).
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through the “Specter Amendment.”24 Since 1975, the United States has settled over 3 million refugees.25
It should come as no surprise, then, 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 U.S. population); or that the revenue generated by these companies is
greater than the GDP of every country in the world outside the United States except China and
Japan; or that successful global 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).26 At least 18 percent of all scientists living in the U.S., of which there are millions, are immigrants or refugees,27 and over 25% of all physicians and surgeons in the United States are born abroad.28 And as of 2016,
roughly 2 million veterans of the U.S. Armed Forces living in the United States—of a total 18.8
24 Andorra Bruno, CONG. RESEARCH SERV., RL31269, “Refugee Admissions and Resettlement Policy” (Nov. 30, 2016).
25 Ruth Igielnick and Jens Manuel Krogstad, “Where Refugees to the U.S. Come From,” PEW RESEARCH CENTER, (Feb. 3, 2017), http://www.pewresearch.org/facttank/2017/02/03/where-refugees-to-the-u-s-come-from/.
26 PARTNERSHIP FOR THE NEW AMERICAN ECONOMY, “The ‘New American’ Fortune 500,” (June 2011), http://www.renewoureconomy.org/sites/all/themes/pnae/img/new-americanfortune-500-june-2011.pdf.
27 Flora Lan, Katherine Hale, and Emilda Rivers, “Immigrants’ Growing Presence in the U.S. Science and Engineering Workforce: Education and Employment Characteristics in 2013,” NATIONAL CENTER FOR SCIENCE AND ENGINEERING STATISTICS (Sept. 2015), https://www.nsf.gov/statistics/2015/nsf15328/nsf15328.pdf.
28 Nicole Fisher, “25% of Physicians Are Born Outside the U.S. Can Immigration Reform Fix The Shortage?” FORBES: PHARMA & HEALTHCARE (Jul. 12, 2016), http://www.forbes.com/sites/nicolefisher/2016/07/12/25-of-docs-are-born-outside-of-the-u-s-canimmigration-reform-solve-our-doc-shortage/#446de1bc702b.
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million—are refugees/immigrants or have refugee/immigrant parents.29 As President Kennedy observed, “[t]here is no part of our nation that has not been touched by our immigrant background.”30 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 and the denial of visas) or other religious minorities, sometimes they were from nations that were regarded as undesirable (the Chinese exclusion) and sometimes they were groups the government suspected as disloyal (the Japanese internment during World War II). In each case, the United States apologized years later, after it was too late. A. The St. Louis and Jewish Refugees During the Holocaust 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,31 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.
29 Jie Song and Jeanne Batalova, “Immigrant Veterans in the United States,” MIGRATION POLICY INSTITUTE (Oct. 13, 2016), http://www.migrationpolicy.org/article/immigrant-veteransunited-states.
30 Kennedy, supra note 16, at 3. 31 Kristallnacht, or the “Night of Broken Glass,” occurred in November 1938, when almost 100 Jews were murdered, countless more were attacked, and as many as 30,000 Jewish men were arrested and sent to concentration camps. See THE HOLOCAUST ENCYCLOPEDIA, UNITED STATES HOLOCAUST MEMORIAL MUSEUM, “Kristallnacht,” https://www.ushmm.org/wlc/en/article.php?ModuleId=10005201. (Last visited Feb. 7, 2017).
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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 United States 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.32 While United States-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.33
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,34 reflecting anti-immigrant and anti-Semitic sentiments prevailing at the time.35 A State Department telegram to a passenger on the ship explained the government’s position that the
32 THE HOLOCAUST ENCYCLOPEDIA, UNITED STATES HOLOCAUST MEMORIAL MUSEUM, “Voyage of the St. Louis,” https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267. (Last visited Feb. 7, 2017).
33 Id.; see also Dara Lind, How America’s Rejection of Jews Fleeing Nazi Germany Haunts Our Refugee Policy Today, VOX (Jan. 27, 2017, 8:12 AM). http://www.vox.com/policyand-politics/2017/1/27/14412082/refugees-history-holocaust.
34 Kristine Guerra, What the U.S. Learned from Turning Away Refugees who Fled the Nazis, THE WASHINGTON POST (Jan. 29, 2017) https://www.washingtonpost.com/news/postnation/wp/2017/01/29/what-the-u-s-learned-from-turning-away-refugees-who-fled-thenazis/?utm_term=.e91085b6c047.
35 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 were opposed. See Ishaan Tharoor, What Americans Thought of Jewish Refugees on the Eve of World War II, THE WASHINGTON POST (Nov. 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.
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passengers must “await their turns on the [visa] waiting list and qualify for and obtain immigration visas before they may be admissible into the United States.”36
Ultimately, the United States refused entry to the passengers of the St Louis, forcing it to sail back to Europe.37 Historians estimate that more than a quarter of the St. Louis passengers— 254 people—were killed in the Holocaust, including a number at Auschwitz, after being refused entry to the United States.38
In April 2009, at a commemoration for Yom HaShoah (Holocaust Remembrance Day) held at the U.S. Capitol before the President and members of Congress, Fred S. Zeidman, chairman of the U.S. Holocaust Memorial Council, recalled the “infamous ship called the St. Louis” and reminded those gathered of the “shameful result” and the consequences of inaction.39 Three years later, the United States government issued a formal apology for the country’s refusal to provide refuge for the Jewish passengers aboard the St. Louis.40 Addressing the 14 surviving passengers, a State Department official stated: “To the survivors of the MS St. Louis, on behalf of
36 See “Voyage of the St. Louis,” supra note 32. 37 Recent images of refugee-seekers, having disembarked at U.S. airports after days-long journeys, being immediately sent back to the countries from which they had fled, unavoidably call to mind the passengers of the St. Louis who were turned away within sight of U.S. sanctuary. See Appendix. 38 See “Voyage of the St. Louis,” supra note 32. 39 AMERICAN JEWISH JOINT DISTRIBUTION COMMITTEE ARCHIVES, “Fred S. Zeidman’s Remarks, Days of Remembrance Commemoration” (Apr. 23, 2009), http://archives.jdc.org/assets/documents/stlouis_fredszeidmanremarks2009.pdf. 40 Kamrel Eppinger, State Department apologizes to Jewish refugees, SCRIPPS HOWARD FOUNDATION WIRE (Sep. 26, 2012) http://www.shfwire.com/state-department-apologizes-jewishrefugees/.
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the president and Secretary of State, I am honored to say what we should’ve said so long ago, welcome.”41 (Archival photographs from the St. Louis are contained in the Appendix).
The passengers of the St. Louis were not the only victims of America’s refusal to grant
visas to Jews and other minorities during the Holocaust. Before the St. Louis sailed, Congress
rejected a bill that would have allowed 20,000 imperiled 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, refused to be swayed by the children’s
vulnerability, testifying that “20,000 charming children would all too soon grow into 20,000 ugly adults.”42 Countless Jews denied visas to enter the United States ultimately perished in Nazi concentration camps, including the Dutch teenager Anne Frank.43 Historian Richard Brietman
reminds us that if not for an immigration policy steeped in fear, an elderly Anne Frank could still be living in the United States today.44 Instead she was murdered at Bergen-Belsen, made
immortal by the teenage diary that survived her.
41 Id. 42 See Lind, supra note 33. 43 In 1938, Otto Frank first applied for immigrant visas for himself, his wife Edith, and their two daughters Margot and Anne. See Richard Breitman, Blocked by National Security Fears?: The Frank Family and Shifts in American Refugee Policy, 1938-1941, YIVO INSTITUTE FOR JEWISH RESEARCH (Feb. 14, 2007), https://www.yivo.org/cimages/richardbreitmanottofrank-whitepaper.pdf?c=. The family was placed on a waiting list, which by 1939 had grown to include 300,000 individuals. Id. at 2. Despite having multiple people willing to provide affidavits for the Frank family, Otto was met with additional regulations, including proof of booked transportation to the U.S., verification that no close relatives remained in German territories, and the specter of the German refugee quota. Id. at 5. Ultimately, the Frank family was denied refugee status and Anne, along with her mother and sister, all died in the concentration camps. 44 Elahe Izadi, Anne Frank and her family were also denied entry as refugees to the U.S., WASHINGTON POST, (Nov. 24, 2015),
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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.45 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.46 Nevertheless, hostility towards the Chinese escalated within certain portions of the American public, who blamed wage decreases and other economic difficulties on Chinese laborers.47 Although Government leaders initially resisted constituent pressure to stop Chinese immigration,48 a “campaign of organized violence against Chinese communities took form, and the hysteria led to public pressure too violent to be resisted.”49 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.”50 The thrust of the Chinese Exclusion Act was that it barred Chinese laborers from entering the United States for 10 years,51 but it also put in place other discriminatory systems,
https://www.washingtonpost.com/news/worldviews/wp/2015/11/24/anne-frank-and-her-familywere-also-denied-entry-as-refugees-to-the-u-s/?utm_term=.6e028f50e0dd.
45 See H.R. Res. 683, 114th Cong. (as passed by House, June 18, 2012); see also Kennedy, supra note 16 at 40.
46 Kennedy, supra note 16 at 40. 47 HARVARD UNIVERSITY LIBRARY OPEN COLLECTIONS PROGRAM, Chinese Exclusion Act (1882), http://ocp.hul.harvard.edu/immigration/exclusion.html (last visited Feb. 7, 2017). 48 President Arthur initially vetoed the bill, which he viewed as incompatible with the Burlingame Treaty. See Chester A. Arthur, “Veto of the Chinese Exclusion Act” (Apr. 4, 1882). 49 Kennedy, supra note 16 at 41. 50 S.J. Res. 23, Res. Chap. 134 (Ca. 2014). 51 Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882) (repealed 1943) (hereinafter “Chinese Exclusion Act.”).
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including a registry for all Chinese (including non-laborers) who were then legally present in the United States.52 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.53 The Act also explicitly prohibited all state and federal courts from naturalizing people of Chinese origin, regardless of whether they were legally in this country.54 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 . . . .”55
The Chinese Exclusion Act was followed by a series of other laws designed to exclude the Chinese from the United States, both physically and politically. The Scott Act of 188856 precluded Chinese laborers from leaving and reentering the United States entirely and cancelled all previously issued “certificates” as referenced in the Exclusion Act.57 This action prevented the return of approximately 20,000 Chinese laborers who were abroad and had lawfully-obtained certificates permitting them to re-enter.58 It also froze the migration of an additional 600 Chinese individuals who were en route to the United States at the time of its enactment.59 When the
52 Id. 53 Id.; see also S.J. Res. 23, Res. Chap. 134 (Ca. 2014). 54 Chinese Exclusion Act § 14; see also S.J. Res. 23, Res. Chap. 134 (Ca. 2014). 55 Chinese Exclusion Act, preamble. 56 The Scott Act (1888), ch. 1064, 22 Stat. 504 (1888) (repealed 1943). 57 S. Res. 201, 112th Cong. (as passed by Senate, Oct. 6, 2011); see also H.R. Res. 683, 114th Cong. 58 S. Res. 201, 112th Cong. 59 Id.
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Chinese Exclusion Act was set to expire in 1892, Congress passed the Geary Act,60 which extended Chinese exclusion for another ten years and introduced even more restrictions.61 It was not until 1943 that Congress finally began repealing certain – and eventually all – of these discriminatory laws.62
The repeal of the Chinese exclusionary laws was a first step in re-establishing the ideals of the Founders. In October 2011, the United States Senate finally issued an apology for the Chinese Exclusion Act and other laws.63 A similar report was announced by the United States House of Representatives64 and, later, by the California State Legislature.65 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.”66 The announcements expressed a commitment to “diversity in the United States that contributes to the country’s economic, cultural, technological, academic, and political growth.”67
In its apology, the California legislature observed:
60 The Geary Act, ch. 60, 27 Stat. 525 (1892) (repealed 1943). 61 S. Res. 201, 112th Cong. 62 Id. 63 Id. 64 H.R. Res. 683, 114th Cong. 65 S.J. Res. 23, Res. Chap. 134 (Ca. 2014). 66 S. Res.201, 112th Cong.; see also S.J. Res. 23, Res. Chap. 134 (Ca. 2014) (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”). 67 S.J. Res. 23, Res. Chap. 134 (Ca. 2014).
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The 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 . . . .68 Simply put, our nation’s leaders recognized that racism breeds racism, and any governmental policies that conflict with the founding ideals of this country cannot be allowed to stand. C. The Japanese Internment The internment of Japanese-Americans was authorized by Executive Order 9066,69 which President Roosevelt issued in early 1942, 10 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.70 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 Japanese Americans, including 70,000 citizens, to internment camps in desolate areas of the United States for the duration of World War II.71 The justification for Executive Order 9066 was “military necessity.”72 However, Congress has since acknowledged that “these actions were carried out without adequate security
68 Id. 69 7 Fed. Reg. 1407 (Feb. 19, 1942). 70 Id. 71 See Roger Daniels, Concentration Camps USA: Japanese Americans and World War II 33, 104 (1972). 72 U.S. COMM’N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, REPORT: PERSONAL JUSTICE DENIED at 6-8 (96th Cong.) (1982).
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Case 1:17-cv-00116-LMB-TCB Document 63 Filed 02/08/17 Page 22 of 28 PageID# 602
reasons and . . . were motivated largely by racial prejudice, wartime hysteria, and a failure of political leadership.”73 This conclusion was bolstered by the fact that no effort was made to invoke Executive Order 9066 to authorize internment of German-Americans and/or ItalianAmericans.74
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 Civilians issued a report entitled, “Personal Justice Denied.” The report set the stage for the historic 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.75 President Reagan, in his remarks on signing the Act, made clear that the internment of Japanese Americans was a “grave wrong.”76 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 . . .
73 50 U.S.C. § 4202. 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. Stephen White, “Many Americans Support Trump’s Immigration Order; Many Americans Backed Japanese Internment Camps, Too,” THE WASHINGTON POST (Feb. 2, 2017).
74 See U.S. COMM’N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, supra note 72 at 3.
75 See 50 U.S.C. § 4201 et seq. 76 Ronald Reagan, Remarks on Signing the Bill Providing Restitution for the Wartime Internment of Japanese-American Civilians (Aug. 10, 1988).
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individuals of Japanese ancestry” and caused “enormous damages, both material and intangible, . . . which resulted in significant human suffering.”77
CONCLUSION ADL believes that 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 desperately seeking safety, excluded immigrants from China and interned Japanese Americans. 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.
77 50 U.S.C. § 4202. 20

Case 1:17-cv-00116-LMB-TCB Document 63 Filed 02/08/17 Page 24 of 28 PageID# 604

Dated: February 8, 2017
Of Counsel:
John B. Harris Jeremy Goldman Caren Decter Jessica Smith Rayna Lopyan Lily Landsman-Roos Lakendra Barajas Frankfurt Kurnit Klein & Selz, P.C. 488 Madison Avenue New York, New York 10022
Steven M. Freeman Lauren A. Jones Melissa Garlick Michael Lieberman Anti-Defamation League 605 Third Avenue New York, New York 10158
Doron F. Ezickson Anti-Defamation League 1100 Connecticut Avenue, Northwest, Suite 1020 Washington, District of Columbia 20036

Respectfully submitted,
/s/ Joshua David Rogaczewski (Va. Bar No. 65880) (jrogaczewski@mwe.com) McDermott Will & Emery LLP The McDermott Building 500 North Capitol Street, Northwest Washington, District of Columbia 20001-1531 202.756.8195 202.591.2757 fax
Counsel to the Anti-Defamation League

21

Case 1:17-cv-00116-LMB-TCB Document 63 Filed 02/08/17 Page 25 of 28 PageID# 605 APPENDIX
The Journey of the St. Louis and its Passengers
Source: “Map Showing the Voyage of the St. Louis, May 13-June 17, 1939.”, American Jewish
Joint Distribution Committee Archives, “The Story of the S.S. St. Louis (1939)”; http://archives.jdc.org/educators/topic-guides/the-story-of-the-ss-st.html (Last visited February 5, 2017).

Source: Dara Lind, “How America’s Rejection of Jews Fleeing Nazi German Haunts our Refugee Policy Today,” Vox (January 27 2017), http://www.vox.com/policy-andpolitics/2015/11/19/9760060/refugees-historyholocaust. (Last visited February 5, 2017).

In the wake of

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)”; http://archives.jdc.org/educators/topic-guides/thestory-of-the-ss-st.html (Last visited February 5, 2017).

22

Case 1:17-cv-00116-LMB-TCB Document 63 Filed 02/08/17 Page 26 of 28 PageID# 606 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 and on the following page:
23

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Case 1:17-cv-00116-LMB-TCB Document 63 Filed 02/08/17 Page 28 of 28 PageID# 608
CERTIFICATE OF SERVICE I hereby certify that on February 8, 2017, I electronically filed the foregoing Amicus-
Curiae Brief of the Anti-Defamation League in Support of Intervenor-Petitioners with the
Clerk of Court using the ECF system, which will send notification of such filing to all ECF
participants.
/s/ Joshua David Rogaczewski (Va. Bar No. 65880) (jrogaczewski@mwe.com) McDermott Will & Emery LLP The McDermott Building 500 North Capitol Street, Northwest Washington, District of Columbia 20001-1531 202.756.8195 202.591.2757 fax
Counsel to the Anti-Defamation League

 
 Case 1:17-cv-00116-LMB-TCB Document 64 Filed 02/08/17 Page 1 of 2 PageID# 609

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)

Petitioners,

)

)

THE COMMONWEALTH OF VIRGINIA, )

)

Intervenor-Petitioner,

)

)

v.

)

)

DONALD TRUMP, President of the United )

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

CONSENT MOTION FOR LEAVE TO FILE USB FLASH DRIVE

The Commonwealth of Virginia, by counsel, moves this Court for leave to file a USB

flash drive. The flash drive contains video and audio clips referenced in the Declaration of

Mamoona “Mona” H. Siddiqui, ECF No. 61. The video and audio clips included on the flash

drive provide direct evidence of Respondents’ animus towards Muslims and link that animus to

the travel ban implemented through Section 3(c) of the Executive Order. The flash drive will

assist the Court in accessing the video and audio clips listed in the Siddiqui Declaration, thereby

aiding the Court in its decision-making process. Consequently, the Commonwealth respectfully

requests leave to file the flash drive.

The undersigned has conferred with counsel for Respondents, who consents to this

request as long as the Clerk’s office will accept a flash drive.

1

Case 1:17-cv-00116-LMB-TCB Document 64 Filed 02/08/17 Page 2 of 2 PageID# 610

Respectfully submitted,

COMMONWEALTH OF VIRGINIA,

By:

/s/

Stuart A. Raphael (VSB No. 30380)

Solicitor General

Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us

Mark R. Herring Attorney General of Virginia

Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us

Matthew R. McGuire (VSB No. 84194) Assistant Attorney General mmcguire@oag.state.va.us

Counsel for Commonwealth of Virginia

CERTIFICATE OF SERVICE I certify that on February 8, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.

By: /s/ Stuart A. Raphael

2

Case 1:17-cv-00116-LMB-TCB Document 64-1 Filed 02/08/17 Page 1 of 1 PageID# 611

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)

Petitioners,

)

)

COMMONWEALTH OF VIRGINIA,

)

Intervenor-Petitioner, )

)

v.

) Civil Action No. 1:17-cv-116

)

DONALD TRUMP, President of the

)

United States, et al.,

)

)

Respondents.

)

ORDER

THIS MATTER IS BEFORE THE COURT on the Consent Motion for

Leave to File USB Flash Drive filed by the Commonwealth of

Virginia on February 8, 2017. In consideration of the arguments

advanced, it is hereby

ORDERED that the Commonwealth’s Motion for Leave to File

USB Flash Drive is GRANTED. The Clerk will receive the flash

drive for filing.

SO ORDERED.

Date: _______________

Judge Leonie M. Brinkema United States District Judge

Alexandria, Virginia

1

 
 Case 1:17-cv-00116-LMB-TCB Document 68 Filed 02/08/17 Page 1 of 1 PageID# 759

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

COMMONWEALTH OF VIRGINIA,

Plaintiff,
V.

l:17-cv-116(LMB/TCB)

DONALD TRUMP, M iL,

Defendants.

ORDER

Because the Court can sufficiently access the video and audio clips submitted by the Internet links provided in the Commonwealth's written filings, it is hereby

ORDERED the Consent Motion for Leave to File USB Flash Drive [Dkt. 64] be and is

DENIED.
The Clerk is directed to forward copies of this Order to counsel of record.

Entered this day of February, 2017.

Alexandria, Virginia

/s/
Leonie M. Brinkema
United States District Judge

 
 Case 1:17-cv-00116-LMB-TCB Document 77 Filed 02/08/17 Page 1 of 19 PageID# 796

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

TAREQ AQEL MOHAMMED AZIZ, et al., Petitioners,
v. DONALD TRUMP, President of the United States, et al.,
Respondents.

)

)

)

)

)

) )

Civil Action No.: 1:17-cv-116-LMB-TCB

)

)

)

)

)

BRIEF OF AMICI CURIAE 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, and
NETWORK OF ARAB-AMERICAN PROFESSIONALS IN SUPPORT OF INTERVENOR-PETITONER

ARNOLD & PORTER KAYE SCHOLER LLP

/s/

.

Michael Kientzle (VSB 85487)

Daniel A. Cantor

(Pro hac vice motion to be filed)

Arnold & Porter Kaye Scholer LLP

601 Massachusetts Ave., NW

Washington, DC 20001

Telephone: (202) 942-5000

Facsimile: (202) 942-5999

michael.kientzle@apks.com

daniel.cantor@apks.com

A ttorneys forA miciC u riae February 8, 2017

MUSLIM ADVOCATES
Farhana Khera Aziz Huq Brenda Abdelall Madihha Ahussain Johnathan Smith Junaid Sulahry Muslim Advocates P.O. Box 71080 Oakland, CA 94612 Telephone: (415) 692-1484
O f C ou nselforA miciC u riae

Case 1:17-cv-00116-LMB-TCB Document 77 Filed 02/08/17 Page 2 of 19 PageID# 797
TABLE OF CONTENTS Table of Authorities ....................................................................................................................... iii INTRODUCTION ...........................................................................................................................5 INTEREST OF THE AMICI CURIAE ...........................................................................................5 ARGUMENT ...................................................................................................................................9 I. The President’s Executive Orders on Immigration Are Subject to Important
Constitutional Limitations ......................................................................................................9 A. The Executive Order Is Not Immune From Judicial Review ........................................9 B. The Court Is Not Prohibited From Reviewing The Executive Branch’s
Motives ........................................................................................................................11 II. The Purpose and Effect of the Executive Order Is Animus Toward Muslims .....................13
A. The Executive Order Is Animated By Overt Animus Toward Muslims .....................13 B. The Executive Order Disproportionately Injures Muslims, Including
Longtime U.S. Residents .............................................................................................15 CONCLUSION..............................................................................................................................16
ii

Case 1:17-cv-00116-LMB-TCB Document 77 Filed 02/08/17 Page 3 of 19 PageID# 798
TABLE OF AUTHORITIES
Cases
C ard enas v.United States, 826 F.3d 1164 (9th Cir. 2016) .................................................................................................10
C hae C han P ingv.United States, 130 U.S. 581 (1889).................................................................................................................10
C hu rchof L u ku miB abalu v.H ialeah, 508 U.S. 520 (1993).................................................................................................................12
E qu ity in A thletics,Inc.v.D ep’tof E d u c., 639 F.3d 91 (4th Cir. 2011) .....................................................................................................12
FongYu e Tingv.United States, 149 U.S. 698 (1893).................................................................................................................10
H amd an v.Ru msfeld , 548 U.S. 557 (2006).................................................................................................................12
IN S v.C had ha, 462 U.S. 919 (1983)...................................................................................................................9
IN S v.P angilinan, 486 U.S. 875 (1988).................................................................................................................12
K erry v.D in, 135 S. Ct. 2128 (2015).......................................................................................................10, 13
K orematsu v.United States, 323 U.S. 214 (1944).................................................................................................................10
L ocke v.D avey, 540 U.S. 712 (2004).................................................................................................................12
M cC reary C ou nty,K y.v.A m.C ivilL iberties Union of K y., 545 U.S. 844 (2005).................................................................................................................11
N gu yen v.IN S , 533 U.S. 53 (2001).....................................................................................................................9
S ante Fe Ind ep.S ch.D ist.v.D oe, 530 U.S. 290 (2000).................................................................................................................11
United S tates v.O ’B rien, 391 U.S. 367 (1968).................................................................................................................11
United S tates v.W ind sor, 133 S. Ct. 2675 (2013).............................................................................................................12
Zad vyd as v.D avis, 533 U.S. 678 (2001)...................................................................................................................9
iii

Case 1:17-cv-00116-LMB-TCB Document 77 Filed 02/08/17 Page 4 of 19 PageID# 799 Other Authorities Donald Trump on Orlando Shooting, FACTCHECK.ORG (June 14, 2016), http://www.factcheck.org/2016/06/donald-trump-on-orlando-shooting/ ................................14 Exec. Order No. 13,769, 82 FR 8977 (2017)...............................................................................1, 8 Kambiz Ghanea Bassiri, A History of Islam in America: From the New World to the New World Order (Cambridge 2010) ................................................................................16
iv

Case 1:17-cv-00116-LMB-TCB Document 77 Filed 02/08/17 Page 5 of 19 PageID# 800
INTRODUCTION Plaintiffs’ Motion for Declaratory and Injunctive Relief against the implementation of Section 3(c) 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”) should be granted. The Executive Order is unconstitutional on a number of grounds, most strikingly because its evident purpose and effect is animus toward Muslims. 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. 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 urge this Court to grant the Plaintiffs’ Motion for Declaratory and Injunctive Relief.
INTEREST OF THE AMICI CURIAE This amici curiae brief is submitted on behalf of the Amici described below in support of intervenor-petitioner the Commonwealth of Virginia. 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.
5

Case 1:17-cv-00116-LMB-TCB Document 77 Filed 02/08/17 Page 6 of 19 PageID# 801
American Muslim Health Professionals (“AMHP”) works to improve the health of all 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 through state liaisons and 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 active medical relief programs and emergency relief efforts to respond to disasters and facilitates the transfer of medical knowledge around the world.
6

Case 1:17-cv-00116-LMB-TCB Document 77 Filed 02/08/17 Page 7 of 19 PageID# 802
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 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
7

Case 1:17-cv-00116-LMB-TCB Document 77 Filed 02/08/17 Page 8 of 19 PageID# 803
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 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.
8

Case 1:17-cv-00116-LMB-TCB Document 77 Filed 02/08/17 Page 9 of 19 PageID# 804

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 broadly sweeping immigration ban, the Government has repeatedly

invoked a supposed “plenary power” of the Government’s political branches to exclude

particular groups from entering the United States. See, e.g., Brief of Government at 15,

Washington v. Donald Trump, et al., No. 2:17-cv-00141-JLR (W.D. Wash. Feb. 2, 2017), ECF

No. 50 (citing C ard enas v.United States, 826 F.3d 1164, 1169 (9th Cir. 2016)). However, any

such attempt to shield the Executive Order from 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 Zad vyd as v.D avis, 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). To the contrary, the political

branches must use “a constitutionally permissible means of implementing” the relevant policy.

IN S v.C had ha, 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 embodied in a number of important recent cases.

These cases involve both U.S. citizens and aliens; and both individual antidiscrimination claims

and structural constitutional limits on the government’s power. For example, in Zad vyd as v.

D avis, 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 N gu yen v.IN S , 533 U.S.

9

Case 1:17-cv-00116-LMB-TCB Document 77 Filed 02/08/17 Page 10 of 19 PageID# 805
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 N gu yen Court carefully reviewed the “important governmental interest[s]” furthered by the gender classification. Id .at 64.
S econd , 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., C ard enas v.United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (applying consular non-reviewability doctrine to discretionary denial of a visa). Practical concerns of administrability may support insulating the large volume of such discretionary, factspecific 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 categorically. It also 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 consular non-reviewability doctrine is not absolute. See K erry v. D in, 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 FongYu e Tingv.United States, 149 U.S. 698 (1893), and C hae C han P ingv.United States, 130 U.S. 581 (1889), the Supreme Court upheld the overtly racist Chinese Exclusion Acts.1 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 K orematsu v.United
1 For example, in FongYu e 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.
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S tates, 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 has contended in other litigation that any inquiry into “motive” would create “substantial separation of powers problems.” Brief of Government at 17, Washington v. Donald Trump, No. 17-35105 (9th Cir. Feb. 4, 2017), ECF No. 14 (citing United States v. O ’B rien, 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. This is equally true when the Government purports to invoke national security considerations.
Contrary to the Government’s position, in reviewing the Executive Order, courts are duty-bound to consider not only the language of the Order but also its “historical context” and the “specific sequence of events leading to [its pronouncement].” M cC reary C ou nty,K y.v.A m. C ivilL iberties Union of K y., 545 U.S. 844, 866 (2005). As demonstrated below 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 petitioners and intervenor-petitioner, the Commonwealth of Virginia, have alleged. With respect to the Establishment Clause count in the Commonwealth’s complaint, 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. M cC reary C ou nty,K y., 545 U.S. at 866; Sante Fe Ind ep.Sch.D ist.v.D oe, 530 U.S. 290, 308 (2000) (holding that courts have a “duty . . . to distinguish a sham secular purpose from a
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sincere one”). With respect to Equal Protection, the District Court must similarly address the Plaintiffs’ credible allegations and evidence that the Executive Order was intended to discriminate against Muslims. See E qu ity in A thletics,Inc.v.D ep'tof E d u c., 639 F.3d 91, 108 (4th Cir. 2011) (“In order to survive a motion to dismiss an equal protection claim, a plaintiff must plead sufficient facts to demonstrate plausibly that he was treated differently from others who were similarly situated and that the unequal treatment was the result of discriminatory animus.”). Equal Protection challenges to federal action require judicial consideration of both the “avowed pu rpose and practical effect of the law” to test its constitutionality. United States v. W ind sor, 133 S. Ct. 2675, 2693 (2013) (emphasis added).
Yet another example is the Free Exercise Clause, which requires a determination of whether “animus toward religion” motivated a state action. L ocke v.D avey, 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. C hu rch of L u ku mi B abalu v.H ialeah, 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 or national security contexts. In previous antidiscrimination challenges to executive immigration-related action by noncitizens, the Supreme Court has looked to “the historical record” to determine whether “the actions at issue . . . were motivated by any racial animus.” IN S v.P angilinan, 486 U.S. 875, 886 (1988). In the national security context, the Court has also insisted on careful judicial scrutiny of the factual justifications for decisions that impinge on basic constitutional rights. See,e.g.,H amd an v.Ru msfeld , 548 U.S. 557, 623 (2006) (invalidating military commissions system established by executive order on the ground that “[n]othing in the record before us demonstrates that it would be impracticable to apply court-martial rules in this case” as required by federal statute).
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Finally, even if the plenary power doctrine were properly invoked here (and it is not), Justice Kennedy’s controlling opinion in K erry v.D in, 135 S. Ct. 2128 (2015) 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.” D in, 135 S. Ct. at 2131. Such a standard is met here. As demonstrated below, the Executive Order reflects the implementation of a bad faith effort to target Muslims. These allegations are more than plausible in light of the publicly available evidence. 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. However, 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.” Kientzle Decl. Ex. A. On December 7, 2015, following the terror attack in San Bernardino, California, thencandidate Mr. Trump called for a “complete shutdown of Muslims entering the United States.” Kientzle Decl. Ex. B. Mr. Trump justified this call by claiming, without evidence, that “large
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segments of the Muslim population” favor Sharia (Islamic law) over U.S. law and violence against Americans. Kientzle Decl. Ex. C.
On December 8, 2015, Mr. Trump defended his proposed “Muslim ban,” and falsely accused Muslims of failing to report the San Bernardino plot:2 “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.” Kientzle 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. Kientzle Decl. Ex. E.
On March 9, 2016, Mr. Trump told CNN’s Anderson Cooper that “Islam hates us.” Kientzle 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.” Kientzle 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. Kientzle 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 the “Muslim ban” “legally.” Kientzle Decl. Ex. H. During
2 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.”).
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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.” Kientzle 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. Kientzle 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.” Kientzle 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.” Kientzle Decl. Ex. K.
On January 27, 2017, Mr. Trump said that Christian refugees would be given priority in the refugee program. Kientzle Decl. Ex. L. On February 3, 2017, Mr. Trump posted on Twitter “We must keep ‘evil’ out of our country.” Kientzle Decl. Ex. M.
B. The Executive Order Disproportionately Injures Muslims, Including Longtime U.S. Residents
As American Muslim professionals, Amici can attest to the stigma that has attached to all American Muslims (and those perceived as Muslim in consequence of their ethnicity), 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,
15

Case 1:17-cv-00116-LMB-TCB Document 77 Filed 02/08/17 Page 16 of 19 PageID# 811 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 seven majority-Muslim countries expressly included in the Executive Order — will, if not restrained, continue to harm Amici. CONCLUSION For the foregoing reasons, Amici respectfully request that the Court grant Plaintiffs’ Motion for Declaratory and Injunctive Relief.
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Respectfully submitted,

ARNOLD & PORTER KAYE SCHOLER LLP

/s/

.

Michael Kientzle (VSB 85487)

Daniel A. Cantor (pro hac vice to be filed)

Arnold & Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC 20001 Telephone: (202) 942 5000 Facsimile: (202) 942-5999 michael.kientzle@apks.com daniel.cantor@apks.com

A ttorneys forA miciC u riae

Farhana Khera Aziz Huq Brenda Abdelall Madihha Ahussain Johnathan Smith Junaid Sulahry
Muslim Advocates P.O. Box 71080 Oakland, CA 94612 (415) 692-1484
Bethan R. Jones
Arnold & Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942 5000

Anton Ware
Arnold & Porter Kaye Scholer LLP Three Embarcadero Center 10th Floor San Francisco, CA 94111 (415) 471 3100

(continued) 17

Case 1:17-cv-00116-LMB-TCB Document 77 Filed 02/08/17 Page 18 of 19 PageID# 813

Date: February 8, 2017

Andrew D. Bergman Arnold & Porter Kaye Scholer LLP 700 Louisiana Street Suite 1600 Houston, TX 77002 (713) 576 2430
O f C ou nselforA miciC u riae

18

Case 1:17-cv-00116-LMB-TCB Document 77 Filed 02/08/17 Page 19 of 19 PageID# 814

CERTIFICATE OF SERVICE

I hereby certify that on the February 8, 2017, I electronically filed the foregoing with the

Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to

all counsel of record.

ARNOLD & PORTER KAYE SCHOLER LLP

/s/

.

Michael Kientzle (VSB 84587)

ARNOLD & PORTER KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

Telephone: (202) 942-5000

Facsimile: (202) 942-5999

michael.kientzle@apks.com

A ttorney forA miciC u riae

19

 
 Case 1:17-cv-00116-LMB-TCB Document 80 Filed 02/08/17 Page 1 of 46 PageID# 896

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA

TAREQ AQEL MOHAMMED AZIZ, et al,
Petitioners,
COMMONWEALTH OF VIRGINIA,
IntervenorPetitioner
v.
DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOMS AND BRODER PROTECTION; JOHN F. KELLY, in his official capacity as Secretary of the Department of Homeland Security; KEVIN K. MCALEENAN, in his official capacity as Acting Commissioner of Customs and Border Protection; and WAYNE BONDI, in his official capacity as Customer and Border Protection Port Director of the Area Port of Washington Dulles,
Respondents.

No. 1:17-cv-00116-LMB-TCB
RESPONDENTS’ MEMORANDUM OF LAW IN OPPOSITION TO INTERVENOR-PETITIONER COMMONWEALTH OF VIRGINIA’S MOTION FOR PRELIMINARY INJUNCTION

Case 1:17-cv-00116-LMB-TCB Document 80 Filed 02/08/17 Page 2 of 46 PageID# 897
TABLE OF CONTENTS INTRODUCTION .........................................................................................................................1 BACKGROUND ............................................................................................................................3 I. The Immigration and Nationality Act..................................................................................3 II. Presidential Authority Over Foreign Affairs and National Security ...................................5 III. The President’s Executive Order of January 27, 2017 ........................................................6 IV. Recent Events.......................................................................................................................7 STANDARD OF REVIEW ...........................................................................................................9 ARGUMENT..................................................................................................................................9 I. Virginia Lacks Standing ......................................................................................................9 II. This Court Cannot, and Need Not, Review the President’s National Security
Determinations Underlying the Executive Order ..............................................................14 A. Courts lack jurisdiction to review the Executive Branch’s decisions concerning
visa revocation and entry .......................................................................................14 B. Virginia lacks any cause of action under the INA or to enforce the alleged rights
of third party aliens ................................................................................................16 III. Virginia Fails to Demonstrate It Is Likely to Prevail on the Merits ..................................18
A. The Order is a Valid Exercise of Congress’s Broad Delegation of Authority to the President and His Own Constitutional Powers ......................................................18
B. Virginia’s constitutional challenges are without merit ..........................................22 i. Fifth Amendment—Due Process .............................................................22 ii. Establishment Clause and Equal Protection ..............................................25
C. State Sovereigns Lack a Cause of Action under the RFRA...................................27 IV. Virginia Fails to Demonstrate Irreparable Harm ...............................................................28 V. The Balance of Equities and Public Interest Tip Sharply in the Government’s Favor......29 VI. Relief Must be Limited in Scope to Virginia and to Specific Harm Found ......................30
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TABLE OF AUTHORITIES
CASE LAW
Action NC v. Strach, 2016 WL 6304731 (M.D.N.C. Oct. 27, 2016).......................................................................... 12
Adams v. Baker, 909 F.2d 643 (1st Cir. 1990)..................................................................................................... 24
Adams v. Freedom Forge Corp., 204 F.3d 475 (3d Cir. 2000)...................................................................................................... 28
Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978) .......................................................................................... 2, 9, 30
Al Haramain Islamic Found., Inc. v. U.S. Dep't of Treasury, 686 F.3d 965 (9th Cir. 2012) .................................................................................................... 15
Alabama v. United States, 2016 WL 4070146 (N.D. Ala. Aug 31, 2016) .......................................................................... 18
Alexander v. Sandoval, 532 U.S. 275 (2001)............................................................................................................ 17, 18
Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592 (1982).................................................................................................................. 11
Am. Fed’n of Gov’t Emp., AFL-CIO v. Rumsfeld, 321 F.3d 139 (D.C. Cir. 2003) .................................................................................................. 17
Appiah v. U.S. I.N.S., 202 F.3d 704 (4th Cir. 2000) .................................................................................................... 20
Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053 (9th Cir. 2014) .................................................................................................. 13
Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011).................................................................................................................. 17
Arizona v. United States, 132 S. Ct. 2492 (2012).............................................................................................................. 11
Azizi v. Thornburgh, 908 F.2d 1130 (2d Cir. 1990).................................................................................................... 24
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Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).............................................................................................................. 28
Castro v. United States Dep’t of Homeland Sec., 835 F.3d 422 (3d Cir. 2016)...................................................................................................... 17
Comm. for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 796 (D.C. Cir. 1971) .................................................................................................. 29
Connecticut ex rel. Blumenthal v. United States, 369 F. Supp. 2d 237 (D. Conn. 2005)....................................................................................... 11
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006).................................................................................................................. 14
Dames & Moore v. Regan, 453 U.S. 554 (1982).................................................................................................................. 19
De Avilia v. Civiletti, 643 F.2d 471 (7th Cir. 1981) .................................................................................................... 24
Dekoladenu v. Gonzales, 459 F.3d 500 (4th Cir. 2006) .................................................................................................... 23
Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993).................................................................................................................. 31
Dep’t of Navy v. Egan, 484 U.S. 518 (1988).................................................................................................................. 14
Detroit Int’l Bridge Co. v. Canada, 189 F. Supp. 3d 85 (D.D.C. 2016) ............................................................................................ 17
Diomande v. Gonzales, 247 Fed. App’x 450 (4th Cir. 2007) ......................................................................................... 23
Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802 (4th Cir. 1991) .................................................................................................... 28
Dorsey v. United States, 567 U.S. 260 (2016).................................................................................................................. 22
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568 (1988).................................................................................................................. 22
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F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307 (1993).................................................................................................................. 26
Fed'n for Am. Immigration Reform, Inc. v. Reno, 93 F.3d 897 (D.C. Cir. 1996) .................................................................................................... 13
Fiallo v. Bell, 430 U.S. 787 (1977).................................................................................................................. 27
Franklin v. Massachusetts, 505 U.S. 800 (1992).................................................................................................................. 17
Georgia-Pacific Consumer Prods. LP v. Von Drehle Corp., 781 F.3d 710 (4th Cir. 2015) .................................................................................................... 31
Haig v. Agee, 453 U.S. 280 (1981).................................................................................................................. 24
Haitian Refugee Ctr., Inc. v. Baker, 789 F. Supp. 1552 (S.D. Fla. 1991) .......................................................................................... 14
Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498 (11th Cir. 1992) ................................................................................................ 19
Harisiades v. Shaughnessy, 342 U.S. 580 (1952).................................................................................................................... 6
Heller v. Doe, 509 U.S. 312 (1993) .................................................................................................................. 26
Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136 (1987).................................................................................................................. 25
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)...................................................................................................................... 15
Hughes Network Sys., Inc. v. InterDigital Commc'ns Corp., 17 F.3d 691 (4th Cir. 1994) ...................................................................................................... 29
I.N.S. v. Aguirre-Aguirre, 526 U.S. 415 (1999).................................................................................................................. 14
Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984) ........................................................................................ 5, 20, 27
Johnson v. Whitehead, 647 F.3d 120 (4th Cir. 2011) .................................................................................................... 27
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Kentuckians for Commonwealth v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003) .................................................................................................... 30
Kerry v. Din, 135 S. Ct. 2128 (2015).............................................................................................................. 15
Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009) ................................................................................................ 13
Kleindienst v. Mandel, 408 U.S. 762 (1972).................................................................................................................. 15
Knoetze v. United States, 634 F.2d 207 (5th Cir. 1981) .................................................................................................... 23
Landon v. Plasencia, 459 U.S. 21 (1982)................................................................................................................ 2, 23
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs, 104 F.3d 1349 (D.C. Cir. 1997) ................................................................................................ 21
Linda R.S. v. Richard D., 410 U.S. 614 (1973).................................................................................................................. 18
Louhghalam v. Trump, Civ. No. 17-10154-NMG, 2017 WL 479779 (D. Mass. Feb. 3, 2017)..................... 1, 17, 19, 25
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992).................................................................................................................. 12
Mathews v. Diaz, 426 U.S. 67 (1976).................................................................................................................... 20
Mississippi v. Johnson, 71 U.S. 475 (1867).............................................................................................................. 16, 17
Mow Sun Wong v. Campbell, 626 F.2d 739 (9th Cir. 1980) .................................................................................................... 19
Munaf v. Geren, 553 U.S. 674 (2008).................................................................................................................... 9
Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979) .................................................................................................. 20
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Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, (2012)............................................................................................................. 15
Nat’l Res. Def. Council, Inc. v. Pena, 972 F. Supp. 9 (D.D.C. 1997) ................................................................................................... 29
Nken v. Holder, 556 U.S. 418 (2009).................................................................................................................. 29
Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150 (4th Cir. 2010) .................................................................................................... 23
Palestine Information Office v. Shultz, 674 F. Supp. 910 (D.D.C. 1987) ................................................................................................. 9
Pennsylvania v. New Jersey, 426 U.S. 660 (1976).................................................................................................................. 13
Peterson v. Nat'l Telecommunications & Info. Admin., 505 F. Supp. 2d 313 (E.D. Va. 2006) ....................................................................................... 10
Premo v. Martin, 119 F.3d 764 (9th Cir. 1997) .................................................................................................... 28
RadLAX Gateway Hotel v. Amalgamated Bank, 132 S. Ct. 2065 (2012).............................................................................................................. 22
Raines v. Byrd, 521 U.S. 811 (1997).................................................................................................................. 13
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008)...................................................................................................... 20
Ramirez v. Clinton, 2013 WL 227732 n.2 (E.D. N.C. Jan. 22, 2013) ...................................................................... 23
Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009) .................................................................................................. 28
Regan v. Wald, 468 U.S. 222 (1984).................................................................................................................. 24
Romer v. Evans, 517 U.S. 620 (1996).................................................................................................................. 26
Romero v. Consulate of U.S., Barranquilla, Colombia, 860 F. Supp. 319 (E.D. Va. 1994) ............................................................................................ 15
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Case 1:17-cv-00116-LMB-TCB Document 80 Filed 02/08/17 Page 9 of 46 PageID# 904
Rosenberg v. Fleuti, 374 U.S. 449 (1963).................................................................................................................. 22
State of S.C. v. Katzenbach, 383 U.S. 301 (1966).................................................................................................................. 28
Saavedra v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) .......................................................................................... 15, 21
Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993).................................................................................................................. 19
Sampson v. Murray, 415 U.S. 61 (1974).................................................................................................................... 29
Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005) .................................................................................................. 30
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 213 (1953).................................................................................................................. 23
Shaw v. Hunt, 154 F.3d 161 (4th Cir. 1998) .................................................................................................... 10
Tepeyac v. Montgomery Cty., 722 F.3d 184 (4th Cir. 2013) .................................................................................................... 29
Texas Health & Human Servs. Comm'n v. United States, 193 F. Supp. 3d 733 (N.D. Tex. 2016) ..................................................................................... 18
Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015) ............................................................................ 12, 13, 17
Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996) ...................................................................................................... 26
Trauz v. Raich, 239 U.S. 33 (1915).................................................................................................................... 17
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)...................................................................................................... 2, 5, 6, 14
United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012) .................................................................................................... 26
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United States v. Comstock, 627 F.3d 513 (4th Cir. 2010) ...................................................................................................... 9
United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304 (1936).................................................................................................................... 6
United States v. Lindh, 212 F. Supp. 2d 541 (E.D. Va. 2002) ....................................................................................... 25
United States v. O’Brien, 391 U.S. 367 (1968).................................................................................................................. 16
United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001).................................................................................................................. 30
United States v. Peralta-Sanchez, — F.3d —, 2017 U.S. App. LEXIS 2165 (9th Cir. Feb. 7, 2017) ............................................ 24
United States v. Salerno, 481 U.S. 739 (1987).............................................................................................................. 9, 18
United States v. Texas, 809 F.3d 134 (5th Cir. 2015) .............................................................................................. 12, 13
United States v. Windsor, 133 S. Ct. 2675 (2013).............................................................................................................. 26
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982).................................................................................................................. 25
Vartelas v. Holder, 132 S. Ct. 1479, 1484 (2010).................................................................................................... 29
Virginia Carolina Tools, Inc. v. Int'l Tool Supply, Inc., 984 F.2d 113 (4th Cir. 1993) .................................................................................................... 29
Virginia ex rel. Cuccinelli, 656 F.3d 253 (4th Cir. 2011) .............................................................................................. 11, 17
Webster v. Doe, 486 U.S. 592 (1988).................................................................................................................. 14
Whitmore v. Arkansas, 495 U.S. 149 (1990).................................................................................................................. 13
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)........................................................................................................ 2, 9, 28, 29
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Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).................................................................................................................... 6
Zemel v. Rusk, 381 U.S. 1 (1965)...................................................................................................................... 24
Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015).......................................................................................................... 6, 19
FEDERAL STATUTES Pub. L. No. 89-732.......................................................................................................................... 5 Pub. L. No. 105-100........................................................................................................................ 5 Pub. L. No. 105-277........................................................................................................................ 5 Pub. L. No. 109-13........................................................................................................................ 13 Pub. L. No. 114-113........................................................................................................................ 4 5 U.S.C. § 702............................................................................................................................... 16 8 U.S.C. § 1101............................................................................................................................... 3 8 U.S.C. § 1101(a)(13).................................................................................................................. 23 8 U.S.C. § 1101(a)(13)(A) ............................................................................................................. 7, 8 U.S.C. § 1101(a)(13)(C) ............................................................................................................. 7, 8 U.S.C. § 1101(a)(20).............................................................................................................. 8, 23 8 U.S.C. § 1151............................................................................................................................. 16 8 U.S.C. § 1152(a)(1)(A) ........................................................................................................ 20, 21 8 U.S.C. § 1152(a)(1)(B) .............................................................................................................. 21 8 U.S.C. § 1157(a)(2)...................................................................................................................... 5 8 U.S.C. § 1182(f).................................................................................................................. passim 8 U.S.C. § 1187(a)(12)...................................................................................................... 4, 5, 7, 27
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8 U.S.C. § 1201............................................................................................................................. 17 8 U.S.C. § 1201(i) .................................................................................................................. passim 8 U.S.C. § 1225............................................................................................................................. 17 8 U.S.C. § 1225(b) ........................................................................................................................ 17 8 U.S.C. § 1252............................................................................................................................. 17 8 U.S.C. § 1254a ............................................................................................................................. 5 8 U.S.C. § 1255............................................................................................................................... 5 42 U.S.C. § 2000bb-1(a) ............................................................................................................... 28
EXCUTIVE ORDER AND PROCLAMATIONS\ Exec. Order No. 12,324 .................................................................................................................. 4 Exec. Order No. 12,807 .................................................................................................................. 4 Exec. Order No. 13,694 .................................................................................................................. 4 Exec. Order No. 13,726 .................................................................................................................. 4 Presidential Proclamation 5517 ...................................................................................................... 3 Presidential Proclamation 6958 ...................................................................................................... 4 Presidential Proclamation 8342 ...................................................................................................... 4 Presidential Proclamation 8693 ...................................................................................................... 4
MISCELLANEOUS
Protecting the Nation from Foreign Terrorist Entry into the United States, https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states,
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA

TAREQ AQEL MOHAMMED AZIZ, et al,
Petitioners,
COMMONWEALTH OF VIRGINIA,
IntervenorPetitioner
v.
DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOMS AND BRODER PROTECTION; JOHN F. KELLY, in his official capacity as Secretary of the Department of Homeland Security; KEVIN K. MCALEENAN, in his official capacity as Acting Commissioner of Customs and Border Protection; and WAYNE BONDI, in his official capacity as Customer and Border Protection Port Director of the Area Port of Washington Dulles,
Respondents.

No. 1:17-cv-00116-LMB-TCB
RESPONDENTS’ MEMORANDUM OF LAW IN OPPOSITION TO INTERVENOR-PETITIONER COMMONWEALTH OF VIRGINIA’S MOTION FOR PRELIMINARY INJUNCTION

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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,” 8 U.S.C. § 1182(f), 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 120day 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.” Order §§ 3(c), (5)(a), (c). As another district court recently concluded in a thorough, well-reasoned opinion finding that plaintiffs there were unlikely to show that the Order is not a lawful exercise of the political branches’ plenary control over the admission of aliens into the United States. Louhghalam v. Trump, 2017 WL 479779 *4-5 (D. Mass. Feb. 3, 2017). Nevertheless, despite the plain congressional authorization for the President to make determinations regarding national security and the entry of aliens to this country, the Commonwealth of Virginia seeks an injunction prohibiting enforcement of section 3(c) of the Order on the grounds that it violates the due process rights of its residents vis-à-vis the federal Government and is allegedly motivated by animus towards Muslims. Virginia does so despite the
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heavy burden it carries to justify the “extraordinary remedy” of interfering with Congress’s determination that it is the President, not a court or the political actors of a single state, who makes relevant judgments over national security and foreign affairs. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 22, 25-26 (2008).
Virginia’s attempts to rewrite federal immigration law 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), and that “it is not within the province of any court, unless expressly authorized by law, to review [that] determination,” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950). It also contravenes the considered judgment of Congress that the President should have the unreviewable authority to suspend the entry of any class of aliens, and it is raised at the behest of a party that is not itself subject to the Order, lacks Article III standing or any cognizable right under any source of law to challenge the federal Government’s denial of entry or visas to third-party aliens, and “deeply intrudes into the core concerns of the executive branch.” Adams v. Vance, 570 F.2d 950, 954–55 (D.C. Cir. 1978). Finally, it seeks an injunction that is vastly overbroad—it would be untethered to Virginia’s particular claims; would extend to aliens outside the territory of the United States lacking any substantial ties or connections to this country; and would apply in part nationwide, effectively overriding the judgment of another district court that sustained the Order against parallel challenges. Indeed, Virginia’s likelihood of success faces a particularly insurmountable barrier because Virginia is bringing a facial challenge to the Order; but the vast majority of applications of the Order—e.g., to aliens lacking any due process rights with respect to their requests for admission to the United States—are lawful on their face, such that Virginia’s facial challenge must fail.
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Nor can Virginia sustain its other burdens. Virginia’s claimed harm is vague, abstract, and illusory, and plainly lacks the concrete immediacy necessary to warrant a preliminary injunction. The balance of equities and the public interest also decisively favor the United States, given Virginia’s requested relief would interfere with the President’s exercise of plenary power delegated by Congress. As these factors, like the merits, weigh squarely against judicial relief, the Commonwealth’s motion should be denied.
BACKGROUND I. The Immigration and Nationality Act
The Immigration and Nationality Act of 1952 (INA), 8 U.S.C. §§ 1101 et seq., as amended, establishes the general framework under which Congress has exercised and delegated its plenary constitutional authority to determine who is permitted to enter and remain in the United States and for what reasons aliens may be admitted to or removed from the United States. See Kleindienst v. Mandel, 408 U.S. 753, 766 (1972). Among the sweeping authorities Congress has delegated to the President is the discretion to, 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 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 to suspend or impose restrictions on the entry of certain aliens or classes of aliens, including classifications based on nationality.1 See
1 “The President's sweeping proclamation power thus 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). For example, in 1986, President Reagan (through Presidential Proclamation 5517) invoked section 1182(f) to suspend entry of Cuban nationals as immigrants into the United States, subject to certain exceptions. See Suspension of Cuban Immigration, 1986 WL 796773 (Aug. 22, 1986). In 1996, President Clinton (through Presidential Proclamation 6958) invoked section 1182(f) to suspend entry, subject to certain exceptions, of members of the
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also 8 U.S.C. § 1185(a)(1) (delegating authority to issue “rules, regulations, and orders,
governing departure from and entry into the United States”); 1201(i) (authorizing the Secretary
of State to, in his discretion, revoke visas).2
Congress likewise has expressly drawn immigration distinctions based on nationality. For
example, in 2015, Congress amended the INA to exclude certain individuals from the visa
waiver program (VWP) on the basis of nationality.3 See Consolidated Appropriations Act, 2016,
Pub. L. No. 114-113, 129 Stat. 2242, 2990 (2015) (codified at 8 U.S.C. § 1187(a)(12)). As of
February 2016, the exclusion applied to dual nationals of Iraq and Syria (pursuant to the statute’s
plain text), nationals of countries designated as state sponsors of international terrorism
(currently Iran, Sudan, and Syria), as well as individuals who traveled to Libya, Somalia, or
Yemen on or after March 1, 2011 (pursuant to Executive Branch designations under the statutory
scheme). See 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. These seven countries designated for purposes of the
Government of Sudan, officials of that Government, and members of the Sudanese armed forces as immigrants or nonimmigrants into the United States. See Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Are Members or Officials of the Sudanese Government or Armed Forces, 1996 WL 33673860 (Nov. 22, 1996). Other Presidents have done similarly. See, e.g., Exec. Order No. 12,324 (President Reagan); Exec. Order No. 12,807 (President George H.W. Bush); Presidential Proclamation 8342 (President George W. Bush); Presidential Proclamation 8693 and Executive Orders Nos. 13,694 and 13,726 (President Obama). 2 See also 6 U.S.C. § 236(b)(1) (conferring on Secretary of Homeland Security complementary authority “to refuse visas in accordance with law”), (c)(1) (“[T]he Secretary of State may direct a consular officer to refuse a visa to an alien if the Secretary of State deems such refusal necessary or advisable in the foreign policy or security interests of the United States.”), (c)(2)(H), (d)(2) (reserving Secretary of State’s delegated authorities under 8 U.S.C. § 1182(f)). 3 Congress expressly excluded aliens who were dual nationals of a VWP country (e.g., France, Germany) and of Iraq and Syria from the VWP, see 8 U.S.C. §§ 1187(a)(12)(A)(i)(I), (ii)(I), excluded nationals of countries designated as state sponsors of terrorism under other laws, see id. §§ 1187(a)(12)(A)(i)(II), (ii)(II), and created a process by which the Secretary of Homeland Security could designate additional “[c]ountries or areas of concern” for purposes of the VWP travel restrictions, see id. § 1187(a)(12)(A)(i)(II), (ii)(III), (D).
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VWP travel restrictions—including three also designated for nonimmigrant visa issuance
restrictions, see 8 U.S.C. § 1735—are the same seven countries covered by Section 3 of the
President’s January 27, 2017 Order. See § 3(c) (incorporating by reference “countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12)”).4
II. Presidential Authority Over Foreign Affairs and National Security
As a constitutional baseline, Congress and the Executive share concurrent authority over
immigration matters. Jean v. Nelson, 727 F.2d 957, 964 (11th Cir. 1984) (en banc). Although
“normally Congress supplies the conditions of the privilege of entry into the United States,”
“because the power of exclusion of aliens is also inherent in the executive department of the
sovereign, Congress may in broad terms authorize the executive to exercise the power” without
raising delegation concerns. Knauff, 338 U.S. at 543. These delegations of authority to deny
entry to certain classes of aliens, as outlined above, and based on the President’s findings
regarding the national interest, fall in the heartland of (and are bolstered by) the President’s
broad authority under Article II relating to foreign affairs and national security. See U.S. Const.,
art. II, § 2 (“Commander in Chief” power, and authority to “make treaties” and “appoint
ambassadors”), § 3 (power to “receive ambassadors”). As the Supreme Court has repeatedly
held, Article II confers upon the President expansive authority over foreign affairs, national
4 That Congress itself, or through delegation, can establish laws that pick and choose among aliens based on nationality should be obvious, as the INA is replete with examples of explicit distinctions premised on nationality. See Rajah v. Mukasey, 544 F.3d 427, 435 (2d Cir. 2008). To name but a few examples, in addition to the Visa Waiver Program described above, the President may grant Temporary Protected Status to specific nationalities, without granting it to others, see 8 U.S.C. § 1254a, and may pick and choose among nationalities deciding who and how many refugees to permit to enter the country, see 8 U.S.C. § 1157(a)(2), and Congress may also favor particular nationalities in admission and residency procedures for policy reasons, see, e.g., Syrian Adjustment Act, Pub. L. No. 106-378, 114 Stat. 1442; Nicaraguan Adjustment and Central American Relief Act (Pub. L. No. 105-100, 111 Stat. 2160); Haitian Refugee Immigration Fairness Act of 1998, Pub.L. No. 105-277, §§ 901-904, 112 Stat. 2681-538 codified as amended at 8 U.S.C. § 1255 note (2006)); Cuban Adjustment Act of 1966, Pub. L. No. 89-732, §1, 80 Stat. 1161 (codified as amended at 8 U.S.C. § 1255).
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security, and immigration. See 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”); Knauff, 338 U.S. at 542; United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936) (discussing “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress”). Thus, where, as here, “the President acts pursuant to an express or implied authorization of Congress,” i.e. 8 U.S.C. § 1182(f), coupled with the President’s own Article II powers over foreign affairs and national security, “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (emphasis added); see Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083-84 (2015) (similar). III. The President’s Executive Order of January 27, 2017
Invoking these constitutional and statutory authorities, on January 27, 2017, the President issued Executive Order 13,769 titled: “Protecting the Nation from Foreign Terrorist Entry into the United States.” The Order is intended “to protect the American people from terrorist attacks by foreign nationals admitted to the United States.” Order § 2. To accomplish this purpose, the Order directs a number of actions. See id. §§ 2-11. First, Section 3 of the Order directs the Secretary of Homeland Security (in consultation with other Executive Branch officials) to immediately conduct a 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 Secretary must, within 30 days of the Executive Order, “submit to the President a report on the results of the review,” as well as “a list of countries that do not provide adequate information[.]” Id. § 3(b). During the
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next 60 days, the Order directs a process for requesting necessary information from foreign governments that do not supply such information, and consequences for countries not providing the information. See id. § 3(d)-(f). While this review is ongoing, the Order, pursuant to section 1182(f), suspends entry for 90 days of aliens from countries covered by 8 U.S.C. § 1187(a)(12). Id. § 3(c). During this period, exceptions may be made (on a case-by-case basis) by the Secretaries of State or Homeland Security. Id. § 3(g). The suspension of entry in Section 3(c) does not apply to lawful permanent residents of the United States.5 See Feb. 1, 2017 Memorandum, ECF 34-1; see also 8 U.S.C. §§ 1101(a)(13)(A), (C), (a)(20). IV. Recent Events
The original Plaintiffs filed this Complaint on January 28, 2017. That same day, this Court issued a temporary restraining order, directing Defendants to provide lawful permanent residents (LPRs) detained at Dulles International Airport access to counsel and forbidding Defendants from removing LPRs from Dulles pursuant to the Order for a period of seven days. ECF 3. On January 31, 2017, Virginia sought to intervene and asked the Court to issue an order to show cause why Defendants should not be held in contempt of Court. ECF 14, 18. Virginia also filed a motion for preliminary injunction. ECF 23. Meanwhile, the named parties executed a settlement agreement and asked the Court to hold the named Plaintiffs’ claims in abeyance. ECF 25. On February 3, 2017, the Court granted the motions to intervene and to hold in abeyance, denied the motion to show cause, and ordered production of certain information to Virginia by
5 The Order also suspends the U.S. Refugee Admissions Program for 120 days, while the Secretary of State (in conjunction with other Executive Branch officials), among other things, reviews “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 then “implement[s] such additional procedures.” Order § 5(a).
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February 9, 2017.6 ECF 37, 38. All individual Plaintiffs, the Azizes and Ms. Fadul, have dismissed their claims after lawfully reentering the United States, as have the Doe Plaintiffs.
Meanwhile, on February 1, 2017, White House Counsel issued a Memorandum clarifying that suspension of entry pursuant to section 3(c) does not apply to LPRs (i.e., an immigrant admitted with the privilege of residing permanently in the United States, 8 U.S.C. § 1101(a)(20)). More recently, on February 3, 2017, the District Court for the District of Massachusetts (Gorton, J.) issued a thorough, 21-page decision finding it unlikely that plaintiffs in that case would succeed on their claim that the Order is not a lawful exercise of the political branches’ plenary control over the admission of aliens into the United States. See Louhgalam, 2017 WL 479779 at *6-7. That same day, the District Court for the Western District of Washington (Robart, J.), without explicitly analyzing the factors required to enter a temporary restraining order, issued a nationwide injunction barring enforcement of sections 3(c), 5(a)-(c), and 5(e) of the Order. Thereafter, Edward J. Ramotowski, Deputy Assistant Secretary, Bureau of Consular Affairs, Department of State, issued a letter reversing the provisional revocation of all visas provisionally revoked by his letter of January 27, 2017, which implemented section 3(c) of the Order. ECF 44. DHS separately issued guidance ordering its officers to suspend all actions implementing the affected section of the Order.7 The Government filed an emergency appeal of Judge Robart’s decision and requested a stay of the injunction. Oral argument on the stay request was held on February 7, 2017, but no decision has yet issued.
STANDARD OF REVIEW
6 The Court also indicated it would be inappropriate to order the Government to permit counsel into secondary inspection at Dulles. Tr. 38:18-24; see Tr. 43-44 (government counsel). The Government renews its objection to Virginia’s declaration that LPRs in secondary are entitled to counsel as a matter of statute or due process, particularly where citizens are not even entitled to such counsel absent a custodial interrogation or criminal investigation. See 8 U.S.C § 1362; 8 C.F.R. § 292.5(b); cf. United States v. Galloway, 316 F.3d 624, 629 (6th Cir. 2003). 7 See https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states.
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A preliminary injunction is “an extraordinary and drastic remedy[.]” Munaf v. Geren, 553 U.S. 674, 689 (2008). A party seeking such relief “must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. Notably, injunctive relief that would “deeply intrude[] into the core concerns of the executive branch”—such as foreign affairs and national security—may be awarded only where the plaintiff “make[s] an extraordinarily strong showing,” Adams, 570 F.2d at 954-55, as to each element, as such requests ask courts “to approach the outer limit of its constitutional authority.” Palestine Info. Ofc v. Shultz, 674 F. Supp. 910, 917 (D.D.C. 1987). Moreover, Virginia raises only facial challenges to the Order, which are “the most difficult challenge[s] to mount successfully,” United States v. Salerno, 481 U.S. 739, 745 (1987), and require showing more than that the Order “might operate unconstitutionally under some conceivable set of circumstances” as to some sub-set of its residents whose interests it purports to invoke. Id. Instead, Virginia bears the “heavy burden” of “establish[ing] that no set of circumstances exist under which the [Order] would be valid.” Id.; United States v. Comstock, 627 F.3d 513, 518 (4th Cir. 2010) (“facial challenge cannot succeed if a statute has a plainly legitimate sweep”).
ARGUMENT I. Virginia Lacks Standing
At the outset, its bears noting that: because this case is now at the preliminary injunction stage, the burden of demonstrating standing is higher than at the pleading stage, see, e.g., Action NC v. Strach, --- F. Supp. 3d ---, 15-CV-1063, 2016 WL 6304731, *18 (M.D.N.C. Oct. 27, 2016); the claims of the individual plaintiffs and intervenors have been dismissed; and Virginia is the only party with claims left in the litigation. Therefore, as the Court itself noted, it must
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determine if Virginia has standing at this stage of the litigation.8 ECF 42 at 11 n.11. Virginia does not meet its burden to establish standing here, and its motion for a preliminary injunction must be denied on this basis. E.g., Peterson v. Nat'l Telecommunications & Info. Admin., 505 F. Supp. 2d 313, 320 (E.D. Va. 2006), aff'd, 478 F.3d 626 (4th Cir. 2007).
Virginia asserts that the Order “has had a direct and substantial impact on Virginia and its public universities, faculty, and students who are foreign-born.” ECF 39, ¶ 33. Specifically, Virginia asserts that the Order (1) “poses a significant chilling effect on other out-of-country students who fear traveling abroad due to the possibility that they will be denied reentry,” (2) “directly harms Virginia universities who will not be able to attract academic talent that enriches their campuses and advances their educational mission”; (3) “financially harms Virginia universities who depend on tuition dollars from out-of-state and out-of-country students,” (4) “jeopardizes grants and contracts that fund research at Virginia’s universities,” and (5) also “impairs Virginia’s economy by restricting the travel of foreign students and foreign workers to Virginia, and impairing their ability to reside in Virginia, depriving [Virginia] of their talents and contributions as residents and taxpayers, and withholding their labor from Virginia’s businesses.” Id., ¶¶ 42, 43, 47, 50, 52. To cure these alleged injuries, Virginia seeks to enjoin section 3(c) of the Order nationwide. Id. at 11. These allegations, however, are insufficient for Article III standing. To properly assert an injury-in-fact, a plaintiff must establish a “concrete and particularized” invasion of a “legally protectable interest” that is “actual or imminent, not conjectural or hypothetical.” Virginia ex rel. Cuccinelli, 656 F.3d 253, 268 (4th Cir. 2011). Virginia appears to assert two types of interests: parens patriae and economic injury, neither of which qualifies as “legally protectable” as applied to the facts of this case. Id. 8 Shaw v. Hunt, 154 F.3d 161, 165 (4th Cir. 1998) (“[W]ithout standing [the intervenors] could not have continued their intervenor status ‘in the absence of the party [plaintiffs] on whose side intervention was permitted.’”).
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First, regarding the asserted quasi-sovereign parens patriae interest in the alleged chilling effect on foreign-born students who fear traveling abroad, “more must be alleged than injury to an identifiable group of individual residents.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 607 (1982). Although a State may have a parens patriae interest in protecting its residents from discrimination in the job market on the basis of their state residency, id. at 609, Alfred did not hold -- and could not have held -- such an interest arises from the incidental effects of the federal government’s treatment of foreign nationals on the basis of alienage.9 See Cuccinelli, 656 F.3d at 268; cf. Arizona v. United States, 132 S. Ct. 2492, 2498 (2012). Here, Virginia’s asserted interests concern the effect of the Order on a small subset of foreign born residents and students. ECF 31 ¶ 5. While “the indirect effects of the injury must be considered as well in determining whether the State has alleged injury to a sufficiently substantial segment of its population,” Snapp, 458 U.S. at 593, Virginia has done no more than engage in speculation about the potential economic effects of the itself-speculative “chilling effect” of the Order on travel by foreign students and others. Virginia attaches little more than hearsay evidence of a handful of J-1 visa recipients having cancelled their plans to visit and study at a Virginia University during the upcoming semester,10 ECF 32, ¶ 9, and conjecture about future effects of the Order. Id. ¶ 8. The Supreme Court routinely rejects as insufficient such “some day” claims of injury based on affidavits of similar indefiniteness. See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 556 (1992). Thus, Virginia fails to establish parens patriae standing sufficient to succeed on its preliminary injunction motion.
9 Virginia lacks standing to assert a procedural due process claim on behalf of the Virginia residents it claims will be affected by the Order. E.g., Connecticut ex rel. Blumenthal v. United States, 369 F. Supp. 2d 237, 247 (D. Conn. 2005) (“The right to due process is an individual right that cannot be adequately represented by means of parens patriae authority.”). 10 The Reveley declaration identifies approximately 350 such students and faculty at Virginia universities and colleges, ECF 31, ¶ 5, that number appears to encompass LPRs, who are not subject to the Order. ECF 34-1, Memorandum (Feb. 1, 2017).
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Regarding claims of economic harm, which the Court viewed as proprietary standing arguments, Virginia fails to establish this interest as well. For one, their allegations of economic harm beyond the speculative harm that may be suffered by their colleges and universities are completely unsupported, which cannot suffice at the preliminary injunction stage. Action NC, 2016 WL 6304731 at *18. Moreover, their asserted economic injuries are not cognizable. Virginia’s contentions regarding its tax base and public funds cannot support standing. 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). Virginia relies on United States v. Texas, 809 F.3d 134, 152–53 (5th Cir. 2015), affirmed by an equally divided court, 136 S. Ct. 2271 (2016), where the Fifth Circuit found that Texas had standing to raise an APA claim for the purposes of a motion for a preliminary injunction to challenge an immigration policy’s effects on the State, that decision is distinguishable, not least because the Fifth Circuit “stress[ed]” that its decision was explicitly “limited to the[] facts” there. Id. at 154. The policy at issue -- the Secretary of Homeland Security’s Deferred Action for Parents of Americans program -- was challenged, in pertinent part, for not being issued pursuant to APA notice and comment procedures before its enactment, a procedural right Texas was entitled to in the Court’s view. Id. at 150. Here, however, at issue is an Executive Order, which is plainly not subject to the same requirements. See Texas v. United States, 86 F. Supp. 3d 591, 607 (S.D. Tex. 2015), aff’d, 809 F.3d 134 (5th Cir. 2015) (explicitly noting at the outset that no executive orders or presidential proclamations were at issue there).
Second, the Fifth Circuit accepted Texas’s argument that it had standing because as a consequence of the program, and as exacerbated by federal preemption of how the State classified foreign-born individuals, see REAL ID Act of 2005 § 202(c)(2)(B)(viii), Pub. L. 10913; Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053 (9th Cir. 2014), Texas had to either incur
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significant costs by issuing driver’s licenses to DAPA beneficiaries or to change its sovereign laws. 809 F.3d at 157; 86 F. Supp. 3d at 616-622. Here however, the Order compels no such thing, as Virginia does not incur significant costs directly attributable to the Order or otherwise place into jeopardy its “sovereign interest in the power to create and enforce a legal code.” Id. at 156. Nor does it suffer an injury exacerbated by existing federal law. Rather, Virginia’s asserted economic harm is sheer speculation about indirect losses in state revenue or impacts to state contracts as a result of less foreign travel or fewer foreign residents in Virginia, see ECF 32 ¶¶ 11–14, which are merely generalized, ancillary, and non-justiciable effects of the federal government exercising its authority over immigration. See Raines v. Byrd, 521 U.S. 811, 819 (1997); cf. FAIR v. Reno, 93 F.3d 897, 901 (D.C. Cir. 1996) (such injuries are “common to the entire population” and “well-suited for redress in the political rather than the judicial sphere”); Texas, 86 F. Supp. 3d at 619-20 (distinguishing the alleged injuries before it from cases in which States alleged “general harm to state revenue or state spending”). Any asserted harm to Virginia’s educational reputation or ability to attract students is also insufficiently concrete, Whitmore v. Arkansas, 495 U.S. 149, 155 (1990), particularly where Virginia is free to mitigate any as of yet speculative harm by recruiting faculty or students from countries not subject to the President’s exercise of his authority under section 1182(f).11 Cf. Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976). At bottom, Virginia’s injury theory proves too much, as it would permit any sovereign, corporate, or individual entity displeased with any federal policy to challenge that policy based on incidental and speculative financial effects, a boundless theory of standing the Supreme Court has rejected that would effectively permit the states to halt any federal program they disagreed with. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006).
11 Even assuming injuries, they are not redressable, as the Court cannot order the United States to grant visas or admit aliens. See Kiyemba v. Obama, 555 F.3d 1022, 1028 (D.C. Cir. 2009).
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II. This Court Cannot, and Need Not, Review the President’s National Security Determinations Underlying the Executive Order In addition to Article III standing, Virginia’s claims must fail at the threshold because the
President’s invocation of section 1182(f) through the Order, and the Order’s implementation through revocation of previously issued visas and denial of entry at the border are both not subject to judicial review under any meaningful standard of review. See 8 U.S.C. § 1201(i)
A. Courts lack jurisdiction to review the Executive Branch’s decisions concerning visa revocation and entry
By its terms, 8 U.S.C. § 1182(f) vests 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.” Exercise of this discretion “is not limited to circumstances defined in the statute,” which “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 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 branches’ plenary constitutional authority over foreign affairs, national security, and immigration. See Knauff, 338 U.S. at 543 (“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”); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999); Dep’t of Navy v. Egan, 484 U.S. 518, 529-30 (1988). Indeed, courts are particularly ill-equipped to second-guess the President’s prospective judgment about risks to national security, 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.”
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Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010). Unlike the President, lack access to classified information about the threat posed by terrorist organizations operating in particular nations or the efforts of those organizations to infiltrate the United States. See, e.g., Al Haramain Islamic Found., Inc. v. Dep’t of Treasury, 686 F.3d 965, 980 (9th Cir. 2012). Virginia’s assertion, clearly made without the benefit of such information, that there is a “near-absence of terror attacks” perpetrated by nationals of the countries subject to the Order, rings hollow.
Any argument that the judiciary may probe behind the President’s exercise of his discretionary authority under section 1182(f) with respect to aliens is wrong. Indeed, under Kleindienst, 408 U.S. at 770, even when the putative rights of citizens are impacted by Executive action, which is not at issue in this case, “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 Kleindeinst’s “reasoning has particular force in the area of national security”). But such limited review is explicitly premised on the fact that the claims are brought “by United States citizens rather than by aliens.”12 Saavedra v. Albright, 197 F.3d 1153, 1163 (D.C. Cir. 1999); see Macena v. USCIS, 2015 U.S. Dist. LEXIS 148395, * 11 (D. Md. Nov. 2, 2015) (“In one limited circumstance, when a visa is denied in a manner that burdens a citizen's constitutional rights, courts may review the decision to see if it was made on the basis of a facially legitimate and bona fide reason”). The more searching inquiry envisioned by Virginia is not only foreclosed by these authorities, but would create substantial separation-of-powers
12 And even where such review is available, it applies to the decisions of the consular officer abroad, and not to the President. See, e.g. Macena, 2015 U.S. Dist. LEXIS 148395 at *11 (“Though erroneous this Court is without jurisdiction to order an American consular official to issue a visa to any alien whether excludable or not.”) (emphasis added); Romero v. Consulate of the United States, Barranquilla, Columbia, 860 F. Supp. 319, 322 (E.D. Va. 1994) (explaining “Plaintiffs’ status as offshore aliens precludes their reliance on Kleindienst”). No party cites any authority for the proposition that such review may be extended to the President.
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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) (a “hazardous matter”), and here even
more so by seeking an injunction against the President, see Mississippi v. Johnson, 71 U.S. 475, 501 (1867), rather than consular official.13
B. Virginia lacks any cause of action under the INA or to enforce the alleged rights of third party aliens
Virginia’s argument that the Government is “violating the [INA]” by an alleged failure to
carry out discretionary duties under the INA, specifically 8 U.S.C. §§ 1151 (governing the
worldwide level of immigration), 1201 (governing the issuance and revocation of visas), and
1225 (governing the inspection of aliens by immigration officers and asylum), ECF 39, ¶¶ 74-75,
fails at the threshold. It is true that Congress has enacted the Administrative Procedure Act
(APA), which provides that a “person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning of a relevant statute, is
entitled to judicial review,” 5 U.S.C. § 702 (emphasis added), and then sets forth the procedures
for such review, see id. §§ 704, 706. But Virginia is not asserting a claim under the APA, and
even if it was, the President is not an “agency” under the APA nor subject to its requirements, see Franklin, 505 U.S. at 800-1, such its claim would be foreclosed.14 See Louhgalam, 2017 WL
479779 at *6-7; Detroit Int’l Bridge Co. v. Canada, 189 F. Supp. 3d 85, 104 (D.D.C. 2016);
accord Mississippi, 71 U.S. at 501; cf. Texas, 86 F. Supp. 3d at 607 (differentiating cases where
13 Assuming arguendo the standard might apply, as another district court has recognized, the 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, 2017 WL 479779 at *8. 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. Louhghalam, 2017 WL 479779 at *6-7. 14 The same result obtains under traditional zone of interests principles, as Virginia cannot and does not demonstrate any interest that Congress intended to protect through the INA. See Am. Fed’n of Gov’t Emp., AFL-CIO v. Rumsfeld, 321 F.3d 139, 144-45 (D.C. Cir. 2003).
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agency action rather than “executive orders or other presidential proclamations” at issue). But more importantly, the INA creates no private cause of action for a state to sue the
federal government under the INA, let alone assert any liberty or proprietary interest a state resident might have regarding their rights vis-à-vis the federal government. Alexander v. Sandoval, 532 U.S. 275, 286 (2001); cf. Cuccinelli, 656 F.3d at 269 (“a state possesses no legitimate interest in protecting its citizens from the government of the United States”).15 For example, Virginia cannot obtain a visa under 8 U.S.C. § 1201 or seek asylum under 8 U.S.C. § 1225. Virginia thus lacks 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. Rather, under the INA’s carefully reticulated scheme, judicial review is available only at the behest of an individual alien adversely affected, and even then only if the alien is subject to removal or expedited removal proceedings, see 8 U.S.C. §§ 1201(i), 1225(b), 1252. Moreover, under longstanding principles discussed above, an alien abroad cannot obtain judicial review of the denial of a visa (or his failure to be admitted as a refugee), or, separately, of any determination made during proceedings under section 1225. See Castro v. United States Dep’t of Homeland Sec., 835 F.3d 422, 434–49 (3d Cir. 2016), pet. for cert. pending, No. 16-812. It follows that a third party, like Virginia, has no “judicially cognizable interest,” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973), in such a denial, and no statutory cause of action under the INA to enforce such rights on behalf of third parties, let alone itself. See Alexander, 532 U.S. at 286 (“private rights of action to enforce federal law must be created by Congress”).16
15 Once an individual is admitted by the Federal Government the individual is free to move to any state. See Trauz v. Raich, 239 U.S. 33, 42 (1915). Thus, the connection, here, between Virginia and the aliens it wishes to sue on behalf is even more attenuated than in Cuccinelli. 16 Texas Health and Human Services Commission v. USA, ---F. Supp. 3d ---, 2016 WL 6677886 at *3-4 (N.D. Tex. June 15, 2016) (“where Congress creates a comprehensive statutory scheme with express provision for private enforcement in certain circumstances, it is highly improbable
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III. Virginia Fails to Demonstrate It Is Likely to Prevail on the Merits
Even assuming justiciability, Virginia falls far short of carrying its “heavy burden” to
demonstrate that it is likely to prevail on the merits of its facial challenge by “establish[ing] that
no set of circumstances exist under which the [Executive Order] would be valid.” Salerno, 481
U.S. at 745. To the contrary, the Order fits within the express delegation of authority in 8 U.S.C.
§ 1182(f). The State’s constitutional and statutory claims also fail as to their individual elements.
A. The Order is a Valid Exercise of Congress’s Broad Delegation of Authority to the President and His Own Constitutional Powers
As noted, the Order was issued pursuant to Congress’s broad delegation of authority to
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”
whenever the President determines their entry would be detrimental to the interests of the United
States. 8 U.S.C. § 1182(f). This express delegation, 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.’”17 Zivotofsky, 135 S. Ct. at 2083-84 (quoting Youngstown, 343 U.S. at 635 (Jackson,
that Congress absentmindedly forgot to mention an intended private action”). Texas is directly on point, finding that States lack ay cause of action under the INA to challenge the placement of refugees by the Federal Government in their territory. See Alabama v. U.S., 2016 WL 4070146, *4 (N.D. Ala. Aug 31, 2016) (same). 17 Justice Black’s majority opinion in Youngstown held that President Truman had usurped Congressional authority over domestic affairs by issuing an Executive Order permitting the seizure of steel mills during the height of the Korean War. 343 U.S. at 588-89. Critical to that holding was the conclusion that Congress held exclusive Article I authority over such action and had not delegated any of that authority to the Executive. Id. But that is far removed from the situation here, where Congress has explicitly delegated sweeping authority to the President, including through section 1182(f), and where the President himself has inherent authority under Article II that was not present in Youngstown, a scenario decidedly not anywhere close to the constitutional line suggested by Justice Jackson. 343 U.S. at 637 (“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional
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J., concurring)); see Dames & Moore v. Regan, 453 U.S. 554, 674 (1982) (upholding decision to nullify non-Iranian interests in Iranian assets because Congress delegated broad authority to the President under the International Emergency Economic Powers Act, such that decision was “supported by the strongest presumption and the widest latitude of judicial interpretation”). Thus, the Order falls squarely within Congress’s 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 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, 2017 WL 479779 at *6-7. As noted above (n. 2), prior Presidents have repeatedly invoked this authority to suspend entry of certain classes of aliens, including on the basis of nationality. Cf. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187 (1993) (it is “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.”).
Additionally, in the immigration context specifically, 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.” Fiallo v. Bell, 430 U.S. 787, 792 (1977)); see Mathews v. Diaz, 426 U.S. 67, 79-80 (1976) (“in the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens”). In this Circuit, “[t]he reasons that preclude judicial
powers of Congress over the matter.”); cf. Zivotofsky, 135 S. Ct. at 2084 (analyzing whether Congress may require the President to recognize a foreign sovereign under the “lowest ebb” framework, inapplicable here).
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review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization,” so the “constraints of rationality imposed by the constitutional requirement of substantive due process and of nondiscrimination exacted by the equal protection component of the due process clause do not limit the federal government's power to regulate either immigration or naturalization.” Appiah v. INS, 202 F.3d 704, 710 (4th Cir. 2000). Indeed, courts here and elsewhere 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, 727 F.2d at 978 n.3; Rajah, 544 F.3d at 435; cf. Malek-Marzban v. INS, 653 F.2d 113, 116 (4th Cir. 1981). There can be little doubt, therefore, based on binding and persuasive precedent, that 8 U.S.C. § 1182(f) authorizes the President to suspend the entry of classes of immigrants on the basis of nationality where, as here, the President has determined that their entry would be “detrimental to the interests of the United States.” And it is thus untenable for Virginia to contend that, for countries with populations that the President has determined present a national-security risk to the United States—as supported by prior assessments by Congress, the State Department, or the Department of Homeland Security—the President lacks the authority to pause the entry of aliens from those countries.
Virginia does not allege that Congress’s delegation through section 1182(f) is otherwise limited by other provisions of the INA, and so has waived this argument. Parties in other litigation have cited 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, an entirely different act under the immigration laws. Indeed, issuance
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of an immigrant visa does not entitle an alien to admission to the United States because visas may be revoked, and even if an alien is issued a valid visa, he may be denied admission to this country when he arrives at the border. See, e.g., Saavedra, 197 F.3d at 1163. There is thus no inconsistency between § 1152(a)(1)(A) and the President’s Order under § 1182(f). Cf. Encuentro Del Canto Popular v. Christopher, 930 F. Supp. 1360, 1365-66 (N.D. Cal. 1996).
But 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 * * *.” The Order is thus 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). Furthermore, while the review is pending, the Secretaries of State and Homeland Security have discretion to grant visas on a case-by-case basis. And, crucially for each of Virginia’s claims with respect to nonimmigrants – i.e. all non-LPRs at issue in Virginia’s complaint – section 1152 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, which is not subject to any judicial review.18 See Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of
18 Even if it applied, § 1152(a)(1)(A) would not restrict § 1182(f)’s broad grant of discretionary authority. The “courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective,” Dorsey v. U.S., 567 U.S. 260, 276 (2016), 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 when the President determines that entry of a “class of aliens” would be
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State, Bureau of Consular Affairs, 104 F.3d 1349, 1353 (D.C. Cir. 1997). B. Virginia’s constitutional challenges are without merit a. Fifth Amendment—Due Process Virginia first argues that the Order “violates the due process rights of . . . Virginia
residents who are [LPRs] and visa holders[.]” Mem. at 6. There are three problems with this argument: (1) it erroneously reads the Order to extend to LPRs; (2) conflates LPRs with aliens issued valid visas; and (3) conflates aliens issued valid visas within the country and those without. Regarding Virginia’s first misunderstanding, the Order simply does not affect any LPR. See Vartelas v. Holder, 132 S. Ct. 1479, 1484 (2010). And if there were any doubt, the White House counsel has issued guidance clarifying that § 3(c) does not apply to LPRs. ECF 34-1; see also 8 U.S.C. §§ 1101(a)(13), (20). Simply put, Virginia’s claims regarding LPRs are no longer justiciable. Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 161 (4th Cir. 2010).
Virginia’s second misunderstanding ignores how nonresident aliens (even aliens issued valid holders) have no constitutional rights to entry or a visa, and the decision whether to admit them into the United States rests exclusively with the federal political branches. See Landon, 459 U.S. at 32. Even at ports of entry, non-resident aliens who have not entered the country have no due process rights with respect to their request for admission beyond what Congress has affirmatively provided. See Plasencia, 459 U.S. at 32; Mezei, 345 U.S. at 213. And even for visa holders within the United States, due process “attaches only when the federal government seeks to deny a liberty or property interest.” Knoetze v. United States, 634 F.2d 207, 211 (5th Cir. 1981) (“the revocation of an entry visa issued to an alien already within our country has no effect
“detrimental to the interests of the United States.” The 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 we are at war—a result that would raise serious constitutional questions, itself a sufficient reason to reject the Virginia’s reading. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988).
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upon the alien's liberty or property interests”); see 8 U.S.C. 1201(i).
Knowing this, Virginia cites cases discussing the visa application process to analogize
aliens issued visas to LPRs, Mem. at 8, but neglects to acknowledge that there is no
constitutional right to a visa. See Kleindienst, 408 U.S. at 762; Ramirez v. Clinton, 2013 WL
227732, at *4 n.2 (E.D. N.C. Jan. 22, 2013); see also Knoetze, 634 F.2d at 212 (“revocation of an
alien's visa jeopardizes no liberty or property interest entitled to constitutional protection”); cf..
Dekoladenu v. Gonzales, 459 F.3d 500, 508 (4th Cir. 2006), abrogated on other grounds by
Dada v. Mukasey, 554 U.S. 1 (2008) (concluding that where a benefit’s grant or revocation is
entirely discretionary, the alien has neither a liberty nor property interest in the relief sought.).
Simply put, there is no constitutionally protected interest in either obtaining or continuing to
possess a visa, e.g., Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990) (non-citizen has no “inherent property right in an immigrant visa.”),19 and nothing Virginia argues can avoid the fact
that it is “beyond peradventure” that “unadmitted and nonresident aliens” have no right to be freely admitted to the United States.20 Adams v. Baker, 909 F.2d 643, 647 (1st Cir. 1990).
The same is true for Virginia’s argument regarding aliens issued visas alleged “right[s] to
19 See Vietnamese Asylum Seekers, 104 F.3d at 1354 (aliens “may not assert a Fifth Amendment right in challenging the procedures for granting immigrant visas”); De Avilia v. Civiletti, 643 F.2d 471, 477 (7th Cir. 1981) (“no vested right in the issuance of a visa”); Knoetze, 634 F.2d 207 (revocation of alien’s visa, without notice, does not infringe a liberty or property interest entitled to constitutional protection); Louhghalam, 2017 WL 479779, at *5 (“There is no constitutionally protected interest in either obtaining or continuing to possess a visa.”). 20 Indeed, non-admitted aliens at the border or abroad have no constitutional rights with respect to challenging the decision of the Executive to deny them entry. See Castro, 835 F.3d at 439–44 (collecting cases). As both the Third and Ninth Circuits have held, that is even true for aliens who have in fact entered the country and are apprehended shortly thereafter. See id.; United States v. Peralta-Sanchez, — F.3d —, 2017 U.S. App. LEXIS 2165 (9th Cir. Feb. 7, 2017) (concluding that alien crossing apprehended after illegal entry entitled to no more process than aliens apprehended at the border). A priori, if even aliens physically on U.S. soil “cannot invoke the Constitution . . . in an effort to force judicial review [of their exclusion] beyond what Congress has already granted them,” id. at 446, aliens abroad wishing to enter certainly cannot. E.g. Mezei, 345 U.S. at 212; cf. Verdugo, 494 U.S. at 271.
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travel . . . to pursue an occupation, and . . . to acquire knowledge.” Mem. at 11. None of these substantive due process rights is implicated where, as here, Virginia is essentially arguing that the only way for non-citizens to exercise these rights is if they are able to freely enter and exit the United States. See, e.g., Regan v. Wald, 468 U.S. 222 (1984) (rejecting plaintiffs’ argument that President Reagan’s restrictions on transactions with Cuba violated their right to international travel); Haig v. Agee, 453 U.S. 280, 306 (1981) (“The Court has made it plain that the freedom to travel outside the United States must be distinguished from the right to travel within the United States.”); Zemel v. Rusk, 381 U.S. 1, 17 (1965) (upholding travel ban to Cuba and noting how “[t]here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow”); United States v. Lindh, 212 F. Supp. 2d 541, 570 & n.73 (E.D. Va. 2002) (“restrictions on dealings with hostile foreign nations—designed to deprive such regimes of resources— [do not] violate [constitutional] rights.”).
b. Establishment Clause and Equal Protection Virginia also alleges that the Order violates the Establishment Clause because it was “motived [sic] by animus towards Muslims.” Mem. at 16. This claim is meritless for multiple reasons. First, non-resident aliens have no rights under the Establishment Clause with respect to their attempt to gain entry into the United States for the same reasons (previously discussed) that they are not protected by the Due Process Clause, such that Virginia lacks any cognizable claim on their behalf. Second, the order is neutral with respect to religion. The only sections of the Order addressing religion are Sections 5(b) and (e), discussing the admission of refugees who face persecution because of their membership in a minority religion. Virginia does not seek to enjoin that provision and in any event has no standing to make such an argument as nothing in its Complaint relates to refugees seeking admission to the United States. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485–86 (1982);
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Louhghalam, 2017 WL 479779, at *4-5 (plaintiffs are not “refugees seeking admission to the United States and consequently, any future implementation of Section 5[] would not personally affect them.”). Finally, Sections 5(b) and (e) provide accommodations for refugees from all countries in the refugee program, not just the seven countries specified in Sections 3(a). Their provisions do not favor any particular religious sect or affiliation. Louhghalam, 2017 WL 479779, at *4-5 (“Nothing in Section 5 compels a finding that Christians are preferred.”). Nor does it violate the Establishment Clause to recognize that religious minorities are more likely to face persecution than members of a religious majority. Cf. Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144–45 (1987) (Brennan, J.); see also 8 U.S.C. § 1187, Note 2. Any claim that the Order operates as a “Muslim ban” is thus baseless.21
For similar reasons, Virginia’s allegations that the Order violates equal protection ignores how nonresident aliens have no rights under the Due Process Clause with respect to their request for entry into the United States. Indeed, as noted, where an equal protection claim is made against a federal immigration law (as opposed to a State law based on alienage), only rational basis review applies. See, e.g., Mathews, 426 U.S. at 83 (considering whether a law that made distinctions based on alienage was “wholly irrational”); United States v. Carpio-Leon, 701 F.3d 974, 979, 982–83 (4th Cir. 2012) (“Carpio-Leon cannot show that there is no rational relationship between prohibiting illegal aliens from bearing firearms and the legitimate government goal of public safety.”). And quite apart from the cases cited by Virginia,22 “[i]t is settled law that rational basis review is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996). Instead, the
21 Virginia’s reference to information extrinsic to the plain language of the Order would not be permitted under the deferential review they ask this Court to undertake, and in any event violates tenets of statutory construction. See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1999). 22 E.g., United States v. Windsor, 133 S. Ct. 2675 (2013); Romer v. Evans, 517 U.S. 620 (1996)
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issue is “whether the legislative classification is rationally related to a legitimate governmental interest.” Id. (emphasis added). Indeed, challenged laws are entitled to “a strong presumption of validity,” Heller v. Doe, 509 U.S. 312, 318–19 (1993), and must be sustained if “there is any reasonably conceivable state of facts that could provide a rational basis for the classification,” id. at 319–20 (internal quotations omitted). “To sustain the validity of its policy, the government is not required to provide empirical evidence,” Thomasson, 80 F.3d at 928 (emphasis added); “a legislative choice is not subject to courtroom factfinding[,]” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993); and, “‘[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.’” Heller, 509 U.S. at 320. The Order easily satisfies this relevant standard. Cf. Haig, 453 U.S. at 307 (“[i]t is obvious and unarguable that no governmental interest is more compelling than the security of the Nation”).
As the Order is does not discriminate on the basis of religion generally or even discussing Islam specifically, Virginia’s arguments on this score amount to nothing more than a policy disagreement with these alienage classifications based on national security concerns. Mem. at 18–21. But, as noted, the Constitution permits the political branches to differentiate on the basis of nationality—especially when there are national security concerns at issue. See, e.g., Jean, 727 F.2d at 978; Narenji, 617 F.2d at 748. Nor is there anything invidious about the Order’s reliance on 8 U.S.C. § 1187(a)(12) even though it references seven countries with majority Muslim populations. After all, there are obviously legitimate national security reasons to temporarily pause entry of nationals of these countries, pending a review and strengthening of the vetting process for visa applicants. These seven countries were already identified pursuant to § 1187(a)(12) by February 2016, and it is not the courts’ “role . . . to second-guess the[se political] judgment[s] . . . . Rather, the question is whether the [law] is supported by a rational basis.” Johnson v. Whitehead, 647 F.3d 120, 127 (4th Cir 2011) (noting this “context is a special one”
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because Congress has “plenary power over immigration and naturalization”). Where, as here, those decisions are supported by an Act of Congress and the determination of the Executive that the countries in question present heightened terrorism-related risks, that alone satisfies any scrutiny warranted under Supreme Court and Fourth Circuit precedents. See Fiallo, 430 U.S. at 794; Whitehead, 647 F.3d at 127.
C. State Sovereigns Lack a Cause of Action under the RFRA Virginia claims that section 3 of the Order violates the Religious Freedom Restoration Act of 1993 (RFRA) by “restricting [aliens’] ability to engage in religious travel abroad and, in the case of residents traveling abroad, to return freely to the United States to attend services in their own faith communities.” ECF 39 at ¶ 38. RFRA, by its own terms, provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” 42 U.S.C. §2000bb-1(a) (emphasis added). “RFRA’s use of ‘person’ should be interpreted consistently with the Supreme Court's interpretation of ‘person’ in the Fifth Amendment.” Rasul v. Myers, 563 F.3d 527, 533 (D.C. Cir. 2009). And as the Supreme Court long ago explained, “[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, and to our knowledge this has never been done by any court.” S.C. v. Katzenbach, 383 U.S. 301, 323-24 (1966); see also Premo v. Martin, 119 F.3d 764, 771 (9th Cir. 1997); cf. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2769 (2014). Indeed, it would be absurd to conceive of Virginia as having a burdened religious exercise, and Virginia thus may not invoke RFRA as a basis to challenge Federal decisions concerning aliens. IV. Virginia Fails to Demonstrate Irreparable Harm Virginia must make a “clear showing” of irreparable harm, Winter, 555 U.S. at 22, i.e. that harm is “‘actual’ and ‘immediate.’” Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d
27

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802, 812 (4th Cir. 1991). Here, again, Virginia relies on the Reveley Declaration, which fails to establish a clear showing of irreparable harm and instead states generally that some unidentified students and scholars may be prevented from traveling. ECF 32, ¶¶ 7, 14. However, Virginia must demonstrate irreparable harm to itself. See, e.g., Adams v. Freedom Forge Corp., 204 F.3d 475, 487 (3d Cir. 2000). Because Virginia has identified no such injury—much less a likely, immediate, and irreparable one—it has not met its burden. Further, these injuries are unspecified and speculative; the declaration provides few, if any details, for example about whether the Virginia residents specifically mentioned in the declaration, are LPRs and, thus, not subject to the Order, id. ¶¶ 6, 7, or have any concrete, immediate plans to travel. See Lujan, 504 U.S. at 556.
Virginia’s argument that its coffers may decrease as an indirect result of the Order, id. ¶¶ 11–13, is purely speculative; Virginia presents no evidence of its revenues being negatively impacted by the Order or that this economic harm cannot be corrected by a judgment in the normal course of litigation. Sampson v. Murray, 415 U.S. 61, 90, 94 (1974) (“The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough.”); Hughes Network Sys., Inc. v. InterDigital Commc'ns Corp., 17 F.3d 691, 694 (4th Cir. 1994) (requiring “extraordinary circumstances” for irreparable monetary harm to exist). To the extent Virginia asserts reputational injury, ECF 32, ¶ 10, such injury is similarly monetary, and highly speculative. Virginia Carolina Tools, Inc. v. Int'l Tool Supply, Inc., 984 F.2d 113, 120 (4th Cir. 1993).23
23 To the extent Virginia may assert that the Order’s immediate implementation and continued effect will cause its universities and colleges to create new admissions guidelines with little advance notice, this argument is, at bottom, yet again an assertion of economic harm, and Virginia cannot establish that a limited and temporary pause of visas issued to applicants from seven countries, with a case-by-case waiver process, would lead to an actual, immediate, and drastic restructuring of Virginia’s higher education admissions procedures that would rise to a
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V. The Balance of Equities and Public Interest Tip Sharply in the Government’s Favor Virginia has not demonstrated that any harm to it outweighs the harm that an injunction
would cause Defendants, or that “an injunction is in the public interest.” Winter, 555 U.S. at 20. These two factors merge where, as here, the Federal Government is the opposing party. Nken v. Holder, 556 U.S. 418, 435 (2009). Courts have accorded “great weight” to considerations of foreign policy and national security when balancing the interests and equities of the parties. Nat’l Res. Def. Council, Inc. v. Pena, 972 F. Supp. 9, 20 (D.D.C. 1997); Comm. for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 796, 798 (D.C. Cir. 1971) (given “assertions of potential harm to national security and foreign policy—assertions which [the court] obviously can not appraise—and given the meager state of the record before us, we are constrained to refuse an injunction”). Moreover, in assessing the public interest, a court must heed “the judgment of Congress, deliberately expressed in legislation,” and “the balance that Congress has struck.” United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001).
These factors weigh heavily in Defendants’ favor. Virginia asks the Court to enjoin an Executive Order well-within the President’s constitutional and statutory authority to issue. Virginia disagrees with the President’s determination and believes the Order will harm the interests of residents in that state. The Constitution, however, commits “decision-making in the fields of foreign policy and national security . . . to the political branches of government,” Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005), not to the States. And Congress has expressly authorized the President to do what he has done here based upon a finding, which the President has made here, that “the entry . . . of any class of aliens into the United States would be detrimental to the interests of the United States.” It would be contrary to the public interest to
clear showing of irreparable harm. Direx., 952 F.2d at 812. To the extent Virginia asserts an Establishment Clause claim, because it is unlikely to succeed on that claim, it cannot show irreparable harm on this basis. Tepeyac v. Montgomery Cty., 722 F.3d 184, 190 (4th Cir. 2013).
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ignore Congress’s judgment that the President should make such determinations, to second-guess the President’s determination, or to override the President’s determination based on purported interests of a single state. See Adams, 570 F.2d at 954. VI. Any Relief Must be Limited in Scope to Virginia and to Specific Harm Found
Even were the Court to conclude that Virginia satisfies the requirements for an injunction with respect to some of its claims, the Court should not enter the injunction Virginia seeks. See ECF 31-1 at 2; Complaint, ECF 39 at 11 (seeking order enjoining enforcement of the section 3(c) of Order). Entry of an injunction is reversible error if it is “broader in scope than that necessary to provide complete relief to the plaintiff” or if it does “not carefully address only the circumstances of the case.” Kentuckians for Commonwealth v. Rivenburgh, 317 F.3d 425, 436 (4th Cir. 2003). This is especially so, where, as here, other courts have upheld the Order against the very challenges raised by Virginia, decisions to which this court should accord comity. See Georgia-Pacific Consumer Prods. LP v. Von Drehle Corp., 781 F.3d 710, 715 (4th Cir. 2015). Thus, where, as here, any injury is limited to narrow class of actual Virginia residents with ties or presence to the Commonwealth, if any, a broad, nationwide injunction barring all applications of section 3(c) to all aliens in the world, would be far too expansive. See Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993). Indeed, the vast majority of aliens Virginia’s proposed injunction would reach have never previously visited this country, and have not yet begun the process of obtaining a visa, let alone developing any plausible claim to constitutional rights with respect to their legal status or right to contest entry. At most, an injunction should be limited to the individuals on whom Virginia’s claims rest—previously lawfully admitted aliens temporarily abroad or who wish to travel and return to the United States in the future.
CONCLUSION For the reasons set forth above, the Court should deny Virginia’s motion.
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Dated: February 8, 2017 DATE: February 8, 2017

Respectfully submitted

DANA J. BOENTE UNITED STATES ATTORNEY

CHAD A. READLER Acting Assistant Attorney General

WILLIAM C. PEACHEY Director

By:

/s/________________

DENNIS C. BARGHAAN, JR.

Assistant U.S. Attorney

2100 Jamieson Avenue

Alexandria, Virginia 22314

Telephone: (703) 299-3891

Fax:

(703) 299-3983

Email: dennis.barghaan@usdoj.gov

EREZ REUVENI

Senior Litigation Counsel

Civil Division, Office of Immigration Litigation

P.O. Box 868

Ben Franklin Station

Washington, D.C. 20044

Telephone: (202) 307-4293

Fax:

(202) 616-8962

Email: erez.r.reuveni@usdoj.gov

ATTORNEYS FOR RESPONDENTS

31

Case 1:17-cv-00116-LMB-TCB Document 80 Filed 02/08/17 Page 45 of 46 PageID# 940
CERTIFICATE OF SERVICE
I hereby certify that on this date, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will transmit a true and correct copy of the same to the following:
Simon Sandoval Moshenburg Legal Aid Justice Center 6066 Leesburg Pike, Suite 520 Falls Church, Virginia 22041 Email: Simon@justice4all.org
Counsel for Petitioners
Stuart Alan Raphael Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 804-786-7240 Fax: 804-371-0200 Email: sraphael@oag.state.va.us
Trevor Stephen Cox Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 (804) 786-7704 Fax: (804) 371-0200 Email: tcox@oag.state.va.us
Counsel for the Commonwealth of Virginia
Timothy J. Heaphy Hunton & Williams LLP (DC-Pennsylvania Ave) 2200 Pennsylvania Ave NW Washington, DC 20037 202-955-1500 Fax: 202-778-2201 Email: theaphy@hunton.com
Counsel for Osman Nasreldin and Sahar Kamal Ahmed Fadul
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Date: February 8, 2017

/s/________________

DENNIS C. BARGHAAN, JR.

Assistant U.S. Attorney

2100 Jamieson Avenue

Alexandria, Virginia 22314

Telephone: (703) 299-3891

Fax:

(703) 299-3983

Email: dennis.barghaan@usdoj.gov

ATTORNEYS FOR RESPONDENTS

33

Case 1:17-cv-00116-LMB-TCB Document 80-1 Filed 02/08/17 Page 1 of 10 PageID# 942
EXHIBIT A

Case 1:17-cv-00116-LMB-TCB Document 80-1 Filed 02/08/17 Page 2 of 10 PageID# 943
	   	  
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

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certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.
In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not 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 publicsafety 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

Case 1:17-cv-00116-LMB-TCB Document 80-1 Filed 02/08/17 Page 4 of 10 PageID# 945
order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G4 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 G4 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

Case 1:17-cv-00116-LMB-TCB Document 80-1 Filed 02/08/17 Page 5 of 10 PageID# 946
President the names of any additional countries recommended for similar treatment.
(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.
(h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this orderwithin 30 days of the date of this order, a second report within 60 daysof 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

Case 1:17-cv-00116-LMB-TCB Document 80-1 Filed 02/08/17 Page 6 of 10 PageID# 947
Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date of this order.
Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.
(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality. Where 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.

Case 1:17-cv-00116-LMB-TCB Document 80-1 Filed 02/08/17 Page 7 of 10 PageID# 948
(d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.
(e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest -- including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship -- and it would not pose a risk to the security or welfare of the United States.
(f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order.
(g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of 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

Case 1:17-cv-00116-LMB-TCB Document 80-1 Filed 02/08/17 Page 8 of 10 PageID# 949
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 EntryExit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.
(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section. The initial report shall be submittedwithin 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order. Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational.
Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 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.

Case 1:17-cv-00116-LMB-TCB Document 80-1 Filed 02/08/17 Page 9 of 10 PageID# 950
1201(c) and 1351, and other treatment. If a country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by the foreign country, to the extent practicable.
Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter:
(i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later;
(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and engaged in terrorism-related acts, or who have provided material support to terrorismrelated 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

Case 1:17-cv-00116-LMB-TCB Document 80-1 Filed 02/08/17 Page 10 of 10 PageID# 951
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.
DONALD J. TRUMP
THE WHITE HOUSE, January 27, 2017.
# # # 	  

 
 Case 1:17-cv-00116-LMB-TCB Document 82 Filed 02/08/17 Page 1 of 17 PageID# 953

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al.,

Plaintiffs,

COMMONWEALTH OF VIRGINIA,

Intervenor-Plaintiff,

Civil Action No. 1:17-cv-116

v.

DONALD TRUMP, President of the United States, et al.,

Defendants.

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

KRISTI L. GRAUNKE MICHELLE R. LAPOINTE GILLIAN GILLERS 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*** CARMEN N. GREEN
Americans United for Separation of Church and State
1310 L Street, NW Washington, DC 20005 (202) 466-3234

Counsel for Amici Curiae

* 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.

Case 1:17-cv-00116-LMB-TCB Document 82 Filed 02/08/17 Page 2 of 17 PageID# 954 TABLE OF CONTENTS
Introduction ......................................................................................................................................1 Argument .........................................................................................................................................1 A. Virginia Is Likely To Succeed On The Merits Of Its Claims. ................................................2
1. The Executive Order violates the Establishment Clause. ..............................................2 a. The Executive Order fails the Larson Test. ..........................................................2 b. The Executive Order fails the Endorsement Test. ................................................5 c. The Executive Order fails the Lemon Test. ..........................................................9
2. The Executive Order violates the Religious Freedom Restoration Act.......................11 B. The Balance Of Harms And The Public Interest Favor Granting A Preliminary
Injunction. .............................................................................................................................12 Conclusion .....................................................................................................................................13
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INTRODUCTION President Trump has spent more than a year promising to ban Muslims from entering the United States. During that time, he has repeatedly disparaged and attacked an entire religion and all its adherents because he says that it is “hard to separate . . . who is who” between Muslims and terrorists. Transcripts, Anderson Cooper 360 Degrees, CNN (Mar. 9, 2016), http://cnn.it/2jJmaEC. He has insisted that “hundreds of thousands of refugees from the 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 has warned that Syrian refugees would “be a better, bigger, more horrible version than the legendary Trojan Horse.” Id. And when he has “talked about the Muslims,” he has explained: “we have to have a ban . . . it’s gotta be a ban.” Presidential Candidate Donald Trump Town Hall Meeting in Londonderry, New Hampshire, C-SPAN 28:16 (Feb. 8, 2016), http://cs.pn/2kY4f1T. Now, however, when called to task over his unconstitutional discrimination on the basis of religion, President Trump insists that the instrument for imposing that ban, Executive Order 13,769, avoids illegality because it is aimed at certain countries, not explicitly at Muslims. But he telegraphed this very strategy as a candidate: When challenged over the illegality of banning an entire religion and its adherents, then-candidate Trump responded “[s]o you call it territories. OK? We’re gonna do territories.” 60 Minutes, The Republican Ticket: Trump and Pence, CBS NEWS (July 17, 2016), http://cbsn.ws/29NrLqj. A Muslim ban by any other name is still a ban on Muslims. It violates the fundamental constitutional guarantees of religious freedom, harming the Commonwealth of Virginia, its institutions, and its citizens. The ban is indefensible as a matter of law. A preliminary injunction is warranted.
ARGUMENT “[T]he First Amendment mandates governmental neutrality between religion and religion,” forbidding official discrimination. Epperson v. Arkansas, 393 U.S. 97, 104 (1968); accord, e.g., McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 860 (2005); Larson v. Valente, 456 U.S.
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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 and statutory protections. Hence, Virginia is likely to succeed on the merits of its claims. And because the Executive Order violates fundamental First Amendment rights and the injuries that it inflicts are irreparable, the balance of the equities and the public interest weigh dispositively against allowing enforcement of the Muslim ban while this case is proceeding. A preliminary injunction should issue. A. Virginia Is Likely To Succeed On The Merits Of Its Claims.
1. The Executive Order violates the Establishment Clause. At least three tests apply in determining whether governmental action like the challenged Executive Order violates the Establishment Clause. First, when the government confers a denominational preference (i.e., when it acts to favor or disfavor one faith or denomination over others), its conduct is subject to strict scrutiny and presumptively does not stand. Larson, 456 U.S. at 246. Second, the action is reviewed to determine whether the government is endorsing religion or certain religious beliefs. See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000). And third, the challenged conduct is evaluated under the test of Lemon v. Kurtzman, 403 U.S. 602 (1971), to determine whether the government acted with a religious purpose and whether the effect of the government’s action is to favor or disfavor religion or a particular faith. It is customary to apply all the tests pertinent to the particular facts. See, e.g., Mellen v. Bunting, 327 F.3d 355, 371 (4th Cir. 2003); see also Hernandez v. Comm’r, 490 U.S. 680, 695 (1989) (courts should apply Larson when relevant before proceeding to Lemon). Failure to satisfy any of the tests—or even any part of the Lemon test—invalidates the challenged action. The Executive Order fails them all.
a. The Executive Order fails the Larson Test. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson, 456 U.S. at 244; accord McCreary, 545 U.S. at 875 (“the government may not favor one religion over another, or religion over irreligion,
2

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religious choice being the prerogative of individuals”). Thus, when the government designates one denomination for different treatment—favorable or unfavorable—its action is subject to strict scrutiny under Larson 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).
1. 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). The disfavored status is not limited to people outside the United States; many in Virginia have already been harmed. For example, students from these seven countries who are lawfully residing in Virginia have had their legal status within the United States revoked or denied. Compl. in Intervention ¶¶ 33–52. Notably, on January 27, the State Department revoked “all valid nonimmigrant and immigrant visas of nationals” of the seven countries, regardless of where the individuals currently reside. See Letter of Edward J. Ramotowski, Deputy Assistant Sec’y, Dep’t of State (Jan. 27, 2017) (available at http://bit.ly/2ksbtL2). And while the government has now scaled back its attack on lawful permanent residents (Siddiqui Decl. Ex. 1), the legal status of many other Muslims within and outside the United States is still being rescinded, denied, or threatened.
2. The government demurs that the Executive Order must apply so broadly because the seven identified countries are a source of threat to the United States. But the government’s discrimination is laid bare by, among other things, the Executive Order’s favoring of refugees who are “religious minorit[ies]” in their home countries—including the seven countries. See Exec. Order No. 13,769 § 5(b), (e). Although Virginia challenges only Section 3 of the Executive Order, the canons of construction require that all the sections must be read in pari materia. See United States v. Morison, 844 F.2d 1057, 1064 (4th Cir. 1988) (“[T]he starting point for ascertaining legislative intent is to look to other sections of the Act in pari materia with the statute under review.”); Yellowfish v. City of Stillwater, 691 F.2d 926, 931 (10th Cir. 1982) (applying in pari
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materia to executive orders as well as to congressional statutes). Hence, Section 5 illuminates the discriminatory meaning, purpose, intent, and effect of Section 3 and the entire Executive Order.
To be sure, affording refugee status to victims of religious persecution would be constitutionally permissible. But being “a minority religion in the individual’s country of nationality” (Exec. Order No. 13,769 § 5(b)) does not mean that one is a victim of persecution. So affording preferred status solely 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 (Figures at a Glance, UNHCR, http://bit.ly/2cmTBiF (last visited Feb. 2, 2017)), the preference will primarily benefit non-Muslims, to the detriment of a disfavored minority faith in this country.
In short, the Executive Order disadvantages Muslims from the seven countries regardless of where they live now or whether they have already been thoroughly vetted for entry into the United States; and it prefers religious minorities, i.e., non-Muslims. Such straightforward religious favoritism is “suspect” and calls for “strict scrutiny in adjudging its constitutionality.” Larson, 456 U.S. at 246.
3. 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. Yes, preventing terrorism is a compelling interest. But the Executive Order must be “closely fitted to further the interest.” Larson, 456 U.S. at 248. It isn’t.
A policy of suddenly, flatly, and universally excluding Muslims, many of whom have already been vetted and been approved by the government for entry—indeed, many of whom have lived here lawfully and peaceably for years—is not the least restrictive means to fight terrorism. People from the seven countries listed in 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
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States are listed in or covered by the Executive Order. See id. And homegrown terrorism—by nonMuslims—is a far greater threat and causes significantly more deaths, yet it is left entirely unaddressed by the Executive Order. See, e.g., Ellen Nakashima, Domestic Extremists Have Killed More Americans than Jihadists Since 9/11. How the Government Is Responding, WASH. POST (Oct. 15, 2015), http://wapo.st/1Qh8Kft. Hence, the policy’s fit with the government’s asserted interest is not merely loose; it is nonexistent.
b. The Executive Order fails the Endorsement Test. Not only is government forbidden to “discriminate among persons on the basis of their religious beliefs and practices,” but the Establishment Clause “prohibits government from appearing to take a position on questions of religious belief or from ‘making adherence to a religion relevant in any way to a person’s standing in the political community.’” County of Allegheny v. ACLU, 492 U.S. 573, 590, 594 (1989) (quoting Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring)). “[T]he government may not favor one religion over another” by endorsing the one or condemning the other. McCreary, 545 U.S. at 875. Yet the Executive Order does exactly that. 1. The question under the Endorsement Test is “‘whether an objective observer . . . would perceive” the government to have placed its stamp of approval or disapproval on religion or on a particular faith. Santa Fe, 530 U.S. at 308 (quoting Wallace v. Jaffree, 472 U.S. 38, 76 (1985) (O’Connor, J., concurring in the judgment)). This hypothetical “‘objective observer’ is presumed to know far more than most actual members of a given community.” Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 n.16 (10th Cir. 2008). Most notably, the objective observer is “presumed to be familiar with the history of the government’s actions and competent to learn what history has to show.” McCreary, 545 U.S. at 866. Hence, as a matter of law, the public’s view and understanding of the challenged policy here and the entire history of publicly available information about its genesis and evolution must be considered in determining whether the Executive Order is an unconstitutional religious endorsement. See id.; Green v. Haskell Cty. Bd. of Comm’rs, 568 F.3d 784, 801 (10th Cir. 2009); Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707, 734
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(M.D. Pa. 2005). What is more, even officially repudiated past acts are not “dead and buried” but remain in the reasonable observer’s memory, affecting how the final governmental action is viewed. McCreary, 545 U.S. at 870. Finally, the Establishment Clause is violated by “both perceived and actual endorsement of religion.” Santa Fe, 530 U.S. at 305. Thus, if a reasonable observer considering the full history and context of the challenged policy would perceive governmental endorsement, even if the government did not intend it, the policy cannot stand. Mellen, 327 F.3d at 374.
2. Disapproval of Islam and approval of other faiths is apparent from the bare text of the Executive Order. Section 3 singles out for exclusion persons from seven overwhelmingly Muslim nations: Iran (99.5% Muslim), Iraq (99.0% Muslim), Libya (96.6% Muslim), Somalia (99.8% Muslim), Sudan (90.7% Muslim), Syria (92.8% Muslim), and Yemen (99.1% Muslim). Exec. Order No. 13,769 § 3(c); PEW RES. CTR., THE GLOBAL RELIGIOUS LANDSCAPE 45–50 (2012), http://bit.ly/2k4Us8B.
The Executive Order’s treatment of refugees in Section 5 is pertinent here also, because the reasonable observer would view Section 3 in light of the entire Executive Order, its history, and its embodiment and communication of the government’s aims and objectives. The Executive Order blocks entry of all refugees temporarily and of Syrian refugees indefinitely (Exec. Order No. 13,769 § 5(a), (c)), disproportionately affecting Muslims. As noted, Syria is overwhelmingly Muslim; and Muslims made up a plurality of all refugees resettled in the United States last year, the number of Muslim refugees having increased almost every year over the past decade. Jens Manuel Krogstad & Jynnah Radford, Key Facts About Refugees to the U.S., PEW RES. CTR. (Jan. 30, 2017), http://pewrsr.ch/2kk7ro8. And the disfavor of Islam is further compounded by the Executive Order’s favoritism toward refugees who belong to minority religions (see Exec. Order No. 13,769 § 5(b), (e)), as most refugees worldwide today come from Muslim-majority countries (Figures at a Glance, supra). The intention to disfavor Muslims, and only Muslims, is pellucid.
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3. Though these features of the Executive Order alone suffice to communicate official preference for non-Muslims, as a matter of law the objective observer knows much more. First, the precursor to the Executive Order was then-candidate Trump’s public and repeated promises of a “total and complete shutdown of Muslims entering the United States.” Siddiqui Decl. Ex. 8. Second, candidate Trump renamed and repackaged his Muslim ban only after public outcry over its illegality, candidly explaining that he would now be “talking territory instead of Muslim.” Meet the Press, NBC NEWS (July 24, 2016) http://nbcnews.to/29TqPnp. Third, he publicly described this change not as “a pull-back” but as “an expansion” of his Muslim ban. Id. (emphasis added). Fourth, after the election, President-elect Trump asked Rudy Giuliani (then a vice chair of the President-elect’s transition team and under consideration for Secretary of State) how the “Muslim ban” could be implemented “legally.” Siddiqui Decl. Ex. 4. Fifth, in an interview with the Christian Broadcasting Network on January 27, 2017, the very day he issued the Executive Order, President Trump declared that his administration would be acting to give priority to Christian refugees going forward. Siddiqui Decl. Ex. 6.1 Sixth, the government has exempted from the ban persons from the seven identified countries who hold an Israeli passport (i.e., individuals who are likely to be Jewish). See Message from U.S. Embassy Tel Aviv Consular Section, U.S. EMBASSY IN ISRAEL, http://bit.ly/2l0KWB8 (last visited Feb. 2, 2017).
The objective observer is aware of these and many other public statements by President Trump and his advisers, surrogates, and members of his administration who developed the Muslim ban and the resulting Executive Order, as well as the broader “social context” in which the Executive Order and the policy that it embodies arose. See, e.g., Kitzmiller, 400 F. Supp. 2d at 734. The message, and magnitude, of the government’s disfavor toward Islam is made vivid to the
1 Invoking stereotypical images of violence by Muslims against Christians, President Trump made clear his view that the claims of Muslim refugees were to take a backseat to those of Christians: “Do you know if you were a Christian in Syria it was impossible, at least very tough, to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair.” Id.
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objective observer by the government’s initial attempt, through the Executive Order, to ban even lawful permanent residents—people whom the government had already thoroughly vetted and who in most cases know no home other than the United States—before it disavowed that position in the face of compelling legal challenges. See Siddiqui Decl. Ex. 1. And the religious animus is further underscored by the government’s mass revocation of “all valid nonimmigrant and immigrant visas,” with few exceptions, from the seven Muslim countries. Letter of Edward J. Ramotowski, Deputy Assistant Sec’y, Dept. of State (Jan. 27, 2017) (available at http://bit.ly/2ksbtL2) (emphasis added)). The objective observer will also be aware that, notwithstanding the President’s insistence that the measure is necessary to ensure national security, the Executive Order was crafted not by national-security experts but by political advisors, who themselves have a public record of hostility toward Muslims. See, e.g., Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017), http://cnn.it/2kGdcZy; Andrew Kaczynski, Steve Bannon in 2010: ‘Islam Is Not a Religion of Peace. Islam Is a Religion of Submission,’ CNN (Jan. 31, 2017), http://cnn.it/2knpxSE.
4. Taking all of that into account, an objective observer could hardly help but perceive a strong message of governmental condemnation of Islam and an accompanying message of official preference for other faiths—the latter most obviously through President Trump’s express declaration that his administration would favor Christians over other refugees. The objective observer would thus conclude that Muslims are “outsiders, not full members of the political community” and that persons of other faiths are “insiders, favored members of the political community.” Santa Fe, 530 U.S. at 309–10 (quoting Lynch, 465 U.S. at 688 (O’Connor, J., concurring)).
Nor may the government waive away the President’s statements and other publicly available information about the history of the Executive Order as improper consideration of the “subjective motive in issuing the order.” Emergency Motion at 17, Washington v. Trump, 1735105 (9th Cir. Feb. 4, 2017). As explained, the Endorsement Test requires that this information
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be considered, not for subjective intent, but as an objective test of how the objective observer in the public would view the Executive Order.
5. Simply put, the Executive Order communicates loudly and clearly that Muslims are a disfavored caste. That is not a message that the government can or should convey: “When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual’s decision about whether and how to worship.” McCreary, 545 U.S. at 883 (O’Connor, J., concurring). The violation of the Establishment Clause here is forthright and flagrant.
c. The Executive Order fails the Lemon Test. The Executive Order also fails the Lemon Test, under which governmental action must have a preeminently secular purpose (McCreary, 545 U.S. at 864) and must also have a “principal or primary effect . . . that neither advances nor inhibits religion” (Lemon, 403 U.S. at 612). Failure to satisfy either requirement constitutes an Establishment Clause violation. See id. at 612–13. 1. The secular-purpose requirement is violated if the “government’s actual purpose is to endorse or disapprove of religion.” Edwards v. Aguillard, 482 U.S. 578, 585 (1987) (quoting Lynch, 465 U.S. at 690 (O’Connor, J., concurring)). It is not enough merely to articulate a secular purpose; “the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective.” McCreary, 545 U.S. at 864. As with the Endorsement Test, “[t]he eyes that look to purpose belong to an ‘objective observer.’” Id. at 862 (internal quotation marks omitted) (quoting Santa Fe, 530 U.S. at 308). In other words, the test for purpose is an objective inquiry, not a subjective one. And because “reasonable observers have reasonable memories,” the court must not “turn a blind eye to the context” but must “look to the record of evidence showing the progression leading up to” the challenged action. Id. at 866, 868. President Trump’s clear, unambiguous statements of purpose both before and after the election and inauguration (only a few of which are detailed above), and the rest of the substantial and very public history leading up to the Executive Order, all bespeak the purpose to disfavor Islam, a religious minority in this country, and to favor the majority faith. The President and his
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campaign surrogates and policy advisers promised a “complete and total shutdown of Muslims

entering the United States” and favoritism toward Christian refugees. See Siddiqui Decl. Ex. 12;

Siddiqui Decl. Ex. 6; Siddiqui Decl. Ex. 5. They have now acted to deliver on those promises. See

Exec. Order No. 13,769 §§ 3, 5. The incantation of ‘national security’ simply does not explain the

actions actually taken. So the government’s proffered justification for the Executive Order must

be deemed either a “sham” or merely “secondary” to an impermissible purpose (McCreary, 545

U.S. at 864) to disfavor, vilify, and shun Muslims.

2. The Executive Order also fails Lemon’s principal-effect requirement by inhibiting Islam

and advancing other faiths. See Lemon, 403 U.S. at 612. That is for the reasons already explained

under the Endorsement Test: The effect requirement is violated when, “irrespective of

government’s actual purpose, the practice under review in fact conveys a message of endorsement

or disapproval [of religion].’” Mellen, 327 F.3d at 374 (4th Cir. 2003) (alteration in original)

(quoting Wallace, 472 U.S. at 56 n. 42).2

*

*

*

Rather than undertaking a careful examination of existing federal immigration policy to

determine what may be needed to ensure national security, the President did what he has been

promising for over a year: He banned Muslims. Because the Executive Order is grounded in

nothing more than religious animus, strict scrutiny cannot be satisfied. The government’s

constitutionally and morally indefensible policy cannot stand.

2 Section 5 compounds the impermissible effect of the Executive Order by demonstrably targeting Muslims for unfavorable treatment. Muslim refugees desperate to escape the charnel house of Syria and reunite with family members in Virginia or elsewhere in the United States are now forced to renounce or disguise their faith to qualify for the Executive Order’s exception affording preferred status to “religious minorit[ies].” Exec. Order No. 13,769 § 5(e). When remaining in Syria may be tantamount to a death sentence, this scenario is hardly implausible. Cf., e.g., The Marranos, JEWISHHISTORY.ORG, http://www.jewishhistory.org/the-marranos/ (last visited Feb. 2, 2017) (describing “[t]he forced conversion of a quarter-million Jews in Spain” during the Inquisition). It is difficult to imagine a policy that would more greatly inhibit the practice of one’s faith than to make religious conversion a life-or-death matter.
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2. The Executive Order violates the Religious Freedom Restoration Act. The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1, provides that governmental action cannot substantially burden religious exercise unless it is the least restrictive means of furthering a compelling interest—that is, unless the action survives strict scrutiny. See Holt v. Hobbs, 135 S. Ct. 853, 859 (2015). Once again, the Executive Order cannot meet that “exceptionally demanding” test (see id. at 864). To take an obvious example, Muslim residents of Virginia (and other States) who hold visas and are legally present in the United States cannot make a pilgrimage to Mecca—one of the five pillars of Islam and a mandatory religious obligation to be fulfilled at least once in a practicing Muslim’s lifetime (Diaa Hadid, What Muslims Do on Hajj, and Why, N.Y. Times (Sept. 8, 2016), http://nyti.ms/2kYGovS). For if they leave the United States and then try to come back, they will be detained and deported. Coercion “to act contrary to [one’s] religious beliefs by the threat of civil or criminal sanctions” is a substantial burden on religious exercise under RFRA. Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1069–70 (9th Cir. 2008). No one could seriously dispute that detention and subsequent deportation meet that threshold. The Executive Order must therefore be “the least restrictive means of furthering [a] compelling governmental interest” (§ 2000bb-1(b)), which, as explained above (see supra Section A.1.a), it is not. A blanket ban on all immigration and visitation from seven overwhelmingly Muslim nations with little to no history of sending terrorists to the United States, and the revocation of visas and the inevitable detention and deportation of people lawfully in the United States and accused of no crime, much less terrorism, are not only far more restrictive than necessary to fight terrorism, but they may not further the government’s asserted interest at all. See David Morgan, Former Intel Official: Trump Immigration Ban Makes Americans Less Safe, CBS NEWS (Jan. 30, 2017), http://cbsn.ws/2jKLkpK. The Executive Order is thus unlawful under RFRA. More generally, RFRA was enacted “to provide greater protection for religious exercise than is available under the First Amendment.” Holt, 135 S. Ct. at 859–60. Thus, whatever else it may cover, RFRA certainly encompasses violations of the Free Exercise Clause’s core mandate
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that the government must not single out a particular denomination for punishment based on religious exercise. In that regard, because “[t]he Free Exercise Clause protects against governmental hostility which is masked, as well as overt,” the singling out of a religious group for punishment is suspect even if done artfully and by subterfuge without making direct, explicit reference to the group or its faith. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993). Here, the subterfuge is artless. The “religious gerrymander” violates the Free Exercise Clause—and thus also RFRA (cf. Fernandez v. Mukasey, 520 F.3d 965, 966 n.1 (9th Cir. 2008))—unless the government can demonstrate that it is the least restrictive means to serve a compelling interest (Lukumi, 508 U.S at 534, 546), which it cannot. B. The Balance Of Harms And The Public Interest Favor Granting A Preliminary
Injunction. A preliminary injunction is appropriate to protect against imminent and unconstitutional official discrimination against Muslims. The issuance of a temporary restraining order by the United States District Court for the Western District of Washington (see Washington v. Trump, No. 17-0141, 2017 WL 462040, at *3 (W.D. Wash. Feb. 3, 2017)) has already resulted in reinstatement of some 60,000 visas for people whom the government had previously screened and approved for entry. Michael Edison Hayden & Maia Davis, World’s Airlines Are Told It’s Back to Business as Usual for US-bound Travelers in Wake of Judge’s Order, ABC NEWS (Feb. 4, 2017), http://abcn.ws/2l8PYvy. If that TRO, now on appeal (though it is an unappealable order) were for any reason lifted, allowed to expire, or limited jurisdictionally to the Western District of Washington or the Ninth Circuit, there can be little doubt that the government would immediately reinstate the mass revocations in Virginia and elsewhere. For those whose visas are in jeopardy, and who might be detained and deported, there would then be no adequate remedy for the harms. What is more, “upholding constitutional rights surely serves the public interest.” Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002); accord Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003). Because the Executive Order violates First Amendment rights, the injuries that it inflicts are irreparable as a matter of law. Elrod v. Burns,
12

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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); accord Legend Night Club v. Miller, 637 F.3d 291, 302–03 (4th Cir. 2011). Quite the contrary.
On the other side of the equation, the government has in the pending proceedings in the Ninth Circuit asserted unfettered discretion to exclude an entire “class of aliens” whenever it makes “the predictive judgment” that the class threatens national security, arguing that judicial review of those decisions offends the public interest (Emergency Mot., supra, at 21–22). We anticipate that it will take the same position here. But the government has no legitimate interest, much less a compelling one, in enforcing unconstitutional policies. See Newsom, 354 F.3d at 261; Carandola, 303 F.3d at 521. 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 cannot show that judicial review of unconstitutional conduct undermines governmental authority. Rather, judicial review is the principled constitutional bulwark against naked abuse of political power that confers legitimacy on all governmental action. The harms to Virginia and the public from the Executive Order are imminent and extreme; the purported harms to the government are not legally cognizable. All factors favor the entry of a preliminary injunction.
CONCLUSION The Executive Order is what President Trump promised all along: a “Muslim ban.” No amount of rebranding can change that. People are excluded, detained, and deported for no reason other than their deity and preferred holy book. The Executive Order is an insult to the fundamental principles of religious freedom enshrined in our Constitution. It cannot stand—even for a day. The preliminary injunction should be granted.
13

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Respectfully submitted,

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

/s/ Carmen N. Green
RICHARD B. KATSKEE, pro hac vice pending ERIC ROTHSCHILD,* pro hac vice pending ANDREW L. NELLIS,** pro hac vice pending BRADLEY GIRARD, pro hac vice pending KELLY M. PERCIVAL,*** pro hac vice pending CARMEN N. GREEN
Americans United for Separation of Church and State
1310 L Street, NW Washington, DC 20005 Tel.: (202) 466-3234 Fax: (202) 466-3353 Email: katskee@au.org / rothschild@au.org
nellis@au.org / girard@au.org percival@au.org / green@au.org

Date: February 8, 2017

Counsel for Amici Curiae

* 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.

14

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CERTIFICATE OF SERVICE I certify that on February 8, 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/ Carmen N. Green

 
 Case 1:17-cv-00116-LMB-TCB Document 84 Filed 02/09/17 Page 1 of 32 PageID# 972

No. 17-cv-116 (LMB) (TCB)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
TAREQ AQEL MOHAMMED AZIZ, et al., Petitioners,
v. DONALD TRUMP, President of the United States, et al.,
Respondents.

BRIEF FOR THE STATES OF ILLINOIS AND NEW YORK AND THE COMMONWEALTHS OF MASSACHUSETTS AND PENNSYLVANIA, TOGETHER WITH THE STATES OF CALIFORNIA, CONNECTICUT, DELAWARE, IOWA, MAINE, MARYLAND, NEW MEXICO, NORTH
CAROLINA, OREGON, RHODE ISLAND, VERMONT, AND WASHINGTON, AND THE DISTRICT OF COLUMBIA AS AMICI
CURIAE IN SUPPORT OF PETITIONERS

LISA MADIGAN Attorney General State of Illinois 100 W. Randolph St., 12th Fl. Chicago, IL 60601

ERIC T. SCHNEIDERMAN Attorney General State of New York 120 Broadway, 25th Fl. New York, NY 10271

JOSH SHAPIRO Attorney General Commonwealth of
Pennsylvania Strawberry Square, 15th Fl. Harrisburg, PA 17120
*List of States continues on signature pages

MAURA HEALEY Attorney General Commonwealth of
Massachusetts One Ashburton Place Boston, MA 02108
Dated: February 8, 2017

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TABLE OF CONTENTS

Page

INTERESTS OF AMICI..................................................................................................................1
ARGUMENT ...................................................................................................................................2
I. The Requirements For A Preliminary Injunction Have Been Satisfied.....................................2
A. The Executive Order Is Causing Irreparable Harm. ...........................................................2
1. The Executive Order Is Disrupting The Work Of State Colleges And Universities In Multiple Ways. ...........................................................................3
2. The Executive Order Is Disrupting Staffing And Research At State Medical Institutions...................................................................................................................8
3. The Executive Order Is Irreparably Harming States’ Economies And Tax Revenues. ....................................................................................................................9
4. The Executive Order Inflicts Per Se Irreparable Harm By Violating the Establishment Clause. ...............................................................................................12
B. Virginia’s Challenge To The Executive Order Is Likely To Succeed On The Merits. ....12
1. The Executive Order Violates The Equal Protection Guarantee Of The Fifth Amendment. ..............................................................................................................12
2. The Executive Order Violates The Establishment Clause. .......................................15
3. The Executive Order Violates The Due Process Clause...........................................18
C. The Balance of Hardships Weighs Heavily In Favor Of Granting Virginia’s Requested Preliminary Injunction, Which Is In The Public Interest.
1. The Executive Order Is Gravely Harming People In Our States. .............................21
2. The Executive Order Is Injuring States’ Sovereign and Quasi-Sovereign Interests....24
3. Virginia’s Requested Preliminary Injunction Is In The Public Interest....................26
II. A Nationwide Preliminary Injunction Is Necessary To Provide Complete Relief. .................26
CONCLUSION ..............................................................................................................................28

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INTERESTS OF AMICI The States of Illinois and New York and the Commonwealths of Massachusetts and Pennsylvania, together with the States of California, Connecticut, Delaware, Iowa, Maine, Maryland, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, and Washington, and the District of Columbia, submit this brief as amici curiae in support of the Commonwealth of Virginia’s motion for a preliminary injunction enjoining the enforcement of certain provisions of an Executive Order that bars nationals of seven majority-Muslim countries from entering the United States. The excluded individuals include those with valid U.S. visas that otherwise would entitle them to work, study, and travel within the amici States. The Executive Order thus inhibits the free exchange of information, ideas, and talent between the seven designated countries and the amici States, damaging the financial stability and intellectual vitality of state educational and research institutions and disrupting large and small businesses throughout the States. The sectors experiencing particular disruptions include the life sciences, technology, health care, and finance. While the amici States have distinct economies, depend on differing industries for their economic vibrancy, and contain different types of medical and educational institutions, all of us welcome and benefit from immigration, tourism, and international student travel—and all of us face 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.1 Those lawsuits may well be affected by the decision in this case.
1 See, e.g., Darweesh v. Trump, No. 17-cv-480, ECF Nos. 38, 39 (E.D.N.Y. Feb. 2, 2017); Louhghalam v. Trump, No. 17-cv-10154-NMG, Dkt. No. 44 (D. Mass. Feb. 2, 2017).

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ARGUMENT I. The Requirements For A Preliminary Injunction Have Been Satisfied.
To obtain a preliminary injunction, movants “must demonstrate that (1) they are likely to succeed on the merits; (2) they will likely suffer irreparable harm absent an injunction; (3) the balance of hardships weighs in their favor; and (4) the injunction is in the public interest.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Whether to grant such relief lies in the sound discretion of the court, see Winter, 555 U.S. at 24, and will not be disturbed absent an abuse of discretion, see League of Women Voters of N.C., 769 F.3d at 235.
A. The Executive Order Is Causing Irreparable Harm. Though it was issued just twelve days ago, the Executive Order is already causing irreparable harm to the amici States and will continue to inflict that harm absent the entry of a nationwide preliminary injunction. The injuries outlined below are representative of the harms being suffered by States throughout the country, including Virginia. These injuries include specific disruptions to staffing and intellectual exchange at our colleges and universities and our medical institutions, ongoing harm to our economies and tax revenues, and a per se irreparable injury to our interests in ensuring that the Constitution is upheld within our jurisdictions—harms that cannot be compensated through money damages. Moreover, because many of these harms are caused directly by the Executive Order’s effect on nonimmigrant visa-holders, including those on student and work visas, these injuries are not ameliorated by the federal government’s later-announced position that lawful permanent residents are unaffected by the Executive Order, notwithstanding the plain language of Section 3(c) of the Order.
2

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1. The Executive Order Is Disrupting The Work Of State Colleges And Universities In Multiple Ways.
The Executive Order has irreparably injured—and continues to injure—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 these institutions’ ability to meet their staffing needs. It is already preventing and dissuading scholars from coming to our institutions— including scholars who had already committed to filling positions. The harm is deep and widespread: the University of Massachusetts has more than 160 employees who are affected by the Executive Order; the University of Illinois has about 30 such employees; the City University of New York employs 46 such individuals; and the University of Maryland, College Park, includes about 350 such members in its community.2
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 already are forming task forces and making contingency plans to fill these particular voids in their faculty rosters, but there is no guarantee that they will be able to
2 See, e.g., Decl. of Marcellette G. Williams, Ph. D., Louhghalam v. Trump, No. 17-cv-10154NMG, (D. Mass. Feb. 2, 2017) ECF No. 52-9, at 3 ¶ 4 (describing impact on the University of Massachusetts); Wallace D. Loh, Executive Actions and Staying True to Our Values, https://www.president.umd.edu/executive-actions-and-staying-true-our-values (last visited February 8, 2017).
3

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meet their urgent staffing needs. These suddenly necessary efforts represent a considerable expenditure of scarce resources.
The above-described costs—compelled by the Executive Order—are neither elective nor speculative. On the contrary, the amici States are aware of many staffing-related harms to specific programs in our States. For example, foreign scholars from the designated countries who hold duly issued, otherwise-valid J-1 visas 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 has occurred in the context of medical residency staffing. This endangers our public health and places our communities at risk. State medical schools participate in the “match” program to assign residents to university hospital programs. These medical residents perform crucial services, including providing medical care to underserved residents. The process has already begun, with rankings of future residents due on February 22; the computerized “match” scheduled for March 17; and matched residents expected to begin work on July 1. Many programs regularly match medical residents from the seven designated countries and, prior to the Executive Order, medical schools like the University of Massachusetts Medical School already were actively considering and had interviewed specific applicants from the designated countries. These programs must forgo ranking applicants from
4

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the designated countries or risk having insufficient medical residents to meet staffing needs when their top choices are banned from entry despite, in some cases, having student or work visas.3
Second, the Executive Order creates uncertainty and imposes additional costs related to
nonimmigrant faculty and other employees already present in the United States. Because of the
freeze of at least 90 days on processing visa applications under section 3(c) of the Executive
Order, state institutions must pay an additional $1,225 fee per visa for “Premium Processing
Service” to expedite the approval of certain eligible visas and still are unsure if visas will be issued.4
Third, the Executive Order has disrupted the admissions process for students, causing the
loss of millions of tuition dollars that cannot be fully recovered. Our state colleges and
universities enroll thousands of students from the designated countries. The California State
University System has more than 1,300 affected students with immigrant status and more than 250 affected students on student visas.5 The City University of New York has more than 800 affected undergraduate students;6 the University of California system’s ten campuses have
3 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 the Declaration of Michael F. Collins, MD, Louhghalam v. Trump, No. 17-cv-10154-NMG (D. Mass. Feb. 2, 2017), ECF No. 52-2, at ¶¶ 5-8. 4 Information regarding U.S. Citizenship and Immigration Services’ expediting service, including the fee, is available at https://www.uscis.gov/i-907 (last visited February 8, 2017). 5 This figure is based on information provided by the Assistant Vice Chancellor of International and Off-Campus programs at the California State University System. 6 This figure was provided by the Policy Advisor Office of New York City’s Deputy Mayor for Strategic Policy Initiatives.
5

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almost 500 affected graduate students and 40 affected undergraduates;7 the State University of
New York has 320 affected undergraduates;8 the University of Massachusetts has 300 affected
graduate and undergraduate students;9 and the University of Illinois has over 300 affected
students.10 At the University of Washington, more than 95 students are immigrants from Iran,
Iraq, Syria, Somalia, Sudan, Libya, and Yemen.11 The number at Washington State University is
over 135.12 Other public institutions such as 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.13
The Executive Order not only interferes with the matriculation of future students from the
seven designated countries but also severely harms those who are already enrolled at our state
institutions—thereby jeopardizing their continued enrollment—by preventing them from
travelling for research, conferences, family visits, and other irreplaceable activities that cannot be
7 See Teresa Watanabe and Rosanna Xia, Trump Order Banning Entry from Seven MuslimMajority Countries Roils California Campuses, Los Angeles Times (January 30, 2017), http://www.latimes.com/local/california/la-me-trump-universities-20170130-story.html (last visited February 8, 2017). 8 This figure was provided to the New York Attorney General’s Office by the State University of New York’s General Counsel. 9 See Decl. of Marcellette G. Williams, Ph. D., supra n.2, ¶ 3. 10 This figure was provided to the Office of the Illinois Attorney General by the general counsel of the University of Illinois. 11 See Decl. of Jeffrey Riedinger, Washington v. Trump, No. 2:17-cv-00141-JLR (W.D. Wash. Jan. 30, 2017), ECF No. 9, at 2 ¶ 5. 12 See Decl. of Asif Chaudhry, Washington v. Trump, No. 2:17-cv-00141-JLR (W.D. Wash. Jan. 30, 2017), ECF No. 5, at 2 ¶ 5. 13 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-mostaffected-trump-immigration-ban-2017-2.
6

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compensated through money damages.14 The amici States’ colleges and universities have already offered admission to students from the affected countries who now appear unable to attend, and they 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 seven countries who have had to abandon plans to enroll in their programs due to the Executive Order, and students who have withdrawn applications entirely. As a result, these public institutions must now alter their admissions processes to account for these students who can no longer accept or attend. While public colleges and universities are always subject to federal immigration law and policy, the Executive Order has injured them unexpectedly, by upending with no advance notice the established framework around which these institutions have designed their enrollment processes.
Finally, the amici States are aware of specific instances where the Executive Order has caused harm to our institutions’ core missions of education and scholarship. Graduate and undergraduate students who traveled to see families abroad over winter break have been trapped outside the United States; admitted students and recent faculty hires have been unable to reach the United States; and faculty and doctoral students who are in the United States cannot travel abroad for fieldwork or conferences because they will not be able to reenter. In some cases, such travel is necessary to complete a dissertation or remain on the tenure track.
14 See, e.g., Decl. of Marcellette G. Williams, Ph. D., supra n.2, at 4-5. 7

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2. The Executive Order Is Disrupting Staffing And Research At State Medical Institutions.
Besides disrupting the matching process described above by which our state medical schools acquire medical residents to staff their hospitals, the Executive Order also disrupts the continued training of affected medical residents who are already here and serving our patient populations. Where 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 multi-year programs for training physicians; and staffing gaps will open up at hospitals. The health and well-being of the populaces in the amici States inevitably will suffer. The primary care program at the University of Massachusetts Medical School, for example, currently has six medical residents from the designated countries under employment contracts at a time when primary care physicians are in short supply in many areas across the country.15
Public medical institutions also employ individuals from the designated 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 designated countries. The amici States are aware of employment offers from public entities that have already been extended to and accepted by individuals from the designated countries, who are now waiting for visas to be approved and uncertain if and when they will be able to begin their employment. In addition, the amici States have current employees, located in the United States, who, for the time being, cannot renew or extend their visas or statuses. Because patients at our medical facilities must be cared for, our facilities must immediately adapt to these changed circumstances and spend precious time and resources to do so.
15 Louhghalam v. Trump, No. 17-cv-10154-NMG, Dkt. No. 25-1, at 12 (D. Mass. Jan. 31, 2017). 8

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3. The Executive Order Is Irreparably Harming States’ Economies And Tax Revenues.
The Executive Order gravely harms business interests in the amici States, which depend on remaining internationally competitive and 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 immigrant- and refugee-owned businesses employ more than 281,000 people.16 Immigrants in Illinois represent 37.7% of the State’s software developers.17 And a recent study found that if even half of the more than 3,900 foreign-born graduates of Illinois universities in so-called STEM fields (science, technology, engineering, and mathematics) stayed in the United States, it could result in the creation of more than 5,100 new jobs for U.S.-born workers by 2021.18
Similarly, in the State of Washington, immigrant and refugee-owned businesses employ 140,000 people.19 In addition, Washington’s technology industry relies heavily on the H-1B visa program, with Redmond-headquartered Microsoft alone employing nearly 5,000 people through that program.20 Other Washington companies, including Amazon, Expedia, and Starbucks,
16 See The Contributions of New Americans in Illinois at 2, New American Economy (Aug. 2016), http://bit.ly/2kRVaro (last visited February 8, 2017). 17 Id. at 10. 18 Id. at 13. 19 See Mot. for Temporary Restraining Order, Washington v. Trump, No. 2:17-cv-00141-JLR (W.D. Wash. Jan. 30, 2017), ECF No. 3, at 22. 20 Id.
9

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likewise employ thousands of H-1B visa holders.21 Loss of highly skilled workers puts these companies—and others across the amici States—at a disadvantage with global competitors.22
From the moment of its implementation, the Executive Order has also caused the amici States to lose both direct and indirect tax revenues: economic damage that cannot be undone. Every foreign student, tourist, and business visitor to the amici States contributes to our respective economies. They do so not only by direct payments, including tuition, room, and board payments to state schools, but also through the tax receipts that the students’ presence generates. The Executive Order abruptly blocked thousands of travelers—potential consumers all—from entering the amici States, thereby halting their tax contributions as well. When the Executive Order went into effect, “tens of thousands of visas” for U.S.-bound travelers immediately were revoked, with the State Department later confirming that roughly 60,000 individuals’ visas were provisionally revoked.23
Absent the entry of the nationwide preliminary injunction that Virginia seeks, the amici States will lose weeks or even months of otherwise available tax revenues, even if Virginia ultimately prevails. The collective amounts at issue are immense, even just with respect to the contribution of foreign students to our economies, which potentially total in the tens of millions of dollars. Six of the top ten U.S. institutions hosting international students are located in the amici States, including the University of Illinois Champaign-Urbana, New York University, and
21 Id. 22 See Br. for Technology Companies and Other Businesses as Amici Curiae In Support of Appellees at 8-21, Washington v. Trump, No. 17-35105, Dkt. No. 19-2 (9th Cir. Feb. 5, 2017). 23 See Rachel Revesz, Donald Trump Immigration Ban: 60,000 Visas Revoked After Travel Restrictions Imposed on Seven Muslim-Majority Countries, The Independent (Feb. 3, 2017), available at http://ind.pn/2l0eovf (last visited February 8, 2017).
10

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the University of Southern California.24 In 2015, New York hosted nearly 1,000 nationals from the designated countries who were studying on temporary visas. 25 They collectively contributed $30.4 million to the State’s economy, including direct payments for tuition, fees, and living expenses.26 In Illinois, the figure is $30.3 million.27 And these amounts do not include indirect economic benefits, such as the contributions of international students and scholars to innovation in academic and medical research. These States, of course, are not the only ones affected. The seven countries singled out by the Executive Order account for more than 16,000 students who attended institutions of higher education nationally in the 2014-15 academic year.28 During that period, Iran alone sent 11,338 students to colleges and universities across the United States, yielding an estimated economic impact of $323 million.29 California universities and colleges host the largest number of students from the seven designated countries. The overwhelming majority of them are from Iran, which sent 1,286 student visa-holders to California institutions in 2015.30
24 See http://bit.ly/2jZHg6y (last visited February 8, 2017). 25 See http://www.iie.org/Research-and-Publications/Open-Doors/Data/Economic-Impact-ofInternational-Students (last visited February 8, 2017). 26 See id. 27 See id. 28 See Institute of International Education, Open Doors Data, International Students: All Places of Origin, http://bit.ly/1ObpkM2 (last visited February 8, 2017). 29 See Institute of International Education, Open Doors Data, Fact Sheets for Iran: 2015, http://bit.ly/2lmPhjg (last visited February 8, 2017). 30 See Watanabe & Xia, Trump Order Banning Entry from Seven Muslim-Majority Countries Roils California Campuses, supra n.7.
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4. The Executive Order Inflicts Per Se Irreparable Harm By Violating the Establishment Clause.
The amici States also have suffered irreparable harm because the Executive Order violates the Establishment Clause of the First Amendment, as discussed in Part I.B.2 below. When a party seeking injunctive relief “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.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303 (D.C. Cir. 2006); see also ACLU of Ill. v. City of St. Charles, 794 F.2d 265, 275 (7th Cir. 1986); cf. ACLU of Ky. v. McCreary Cty, 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).
B. Virginia’s Challenge To The Executive Order Is Likely To Succeed On The Merits. 1. The Executive Order Violates The Equal Protection Guarantee Of The Fifth Amendment.
The Supreme Court has made clear that the Due Process Clause of the Fifth Amendment prohibits the federal government from denying to any person, including a noncitizen, the equal protection of the laws. See, e.g., Hampton v. Mow Sun Wong, 426 U.S. 88 (1976). Under wellestablished equal protection doctrine, 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 Executive Order, whose clear purpose and effect are to operate as a “Muslim ban,” contravenes these fundamental equal protection principles.
That the Executive Order was motivated by an intent to discriminate against Muslims is clear from the public statements of officials in the Trump Administration, including the president
12

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himself. As a candidate for president, Donald Trump repeatedly promised that he would ban Muslims from entering the United States.31 Shortly after the Executive Order was promulgated, an advisor to President Trump revealed that the President had asked him to craft a Muslim ban that would withstand judicial scrutiny.32 And at a January 31 press conference on the Executive Order, the Secretary of the Department of Homeland Security explained that “[t]his whole approach was part of what then-candidate Trump talked about for a year or two.” See generally Va. PI Br. at 18-19.
The Executive Order cannot withstand strict scrutiny. Its ban on entry into the United States by all nationals of the seven affected nations—immigrants and nonimmigrants alike, from infants to the elderly—is the antithesis of narrow tailoring.33 This is especially so given the “near-absence of terror attacks” committed in the United States by lawful permanent residents or visa holders from those countries,34 and the extensive screening that the United States has applied to these persons before granting them permission to live, work, and study in the United States.
31 Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslimimmigration (last visited February 8, 2017) (statement “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.”). 32 Trump asked for a ‘Muslim ban,’ Giuliani says – and ordered a commission to do it ‘legally’, The Wash. Post (Jan. 29, 2017) (“‘So when [Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”), https://goo.gl/VL155w (last visited February 8, 2017). 33 Draft State Dep’t Dissent Channel Memo at 2, https://goo.gl/JCAUdL (last visited February 8, 2017). 34 Id.
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Visa applicants are always required to undergo rigorous screening, often by multiple agencies of the U.S. government, before a visa can be approved. For example, the Petition in another suit challenging the Executive Order describes the procedures required by the Iraqi Special Immigrant Visa (SIV) program, and the extensive screening applied to the petitioner in that case between his application for an SIV on or about October 1, 2014 and the visa issuance on January 20, 2017. To apply for an SIV, the petitioner in that suit was required to obtain Chief of Mission Approval from the United States Embassy in Iraq; file a Form I-360 petition with U.S. Citizenship and Immigration Services; and then submit a DS-260 visa application to the National Visa Center. After that paperwork was processed, he was required to go through an interview at a U.S. consulate or embassy; a medical examination; and substantial security background checks performed by the U.S. government. Only after all of this screening, designed to prevent entry by individuals who may pose a security risk, did he receive from the U.S. government a visa for travel to the United States.35 A blanket ban on entry to the United States of nationals of seven majority-Muslim countries who have already been extensively vetted for visa eligibility is not narrowly tailored.36
Even under a more deferential approach, though, the Executive Order cannot pass constitutional muster. Evidence from President Trump himself establishes that Virginia is likely to succeed in showing that the Executive Order was motivated by anti-Muslim animus. And as
35 See Darweesh v. Trump, No. 17-cv-480, Dkt. No. 1, at ¶¶ 23-30 (E.D.N.Y. Jan. 28, 2017). 36 Although it is true that the seven affected countries had been among those previously identified as a risk by Congress and a previous administration, the implications of that previous identification were far more limited, relating primarily to the eligibility of nationals of those countries to visit the United States under the Visa Waiver Program, i.e., without a visa. See 8 U.S.C. § 1187(a)(12); 81 Fed. Reg. 39680-02 (June 17, 2016).
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the Supreme Court has held, “if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” Romer v. Evans, 517 U.S. 620, 634-35 (1996) (citation and alteration omitted).
2. The Executive Order Violates The Establishment Clause. “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). Official action that distributes benefits or burdens according to religion is subject to strict scrutiny. Id. at 246. The law at issue in Larson, which imposed burdensome regulations only on religious organizations that solicited more than half their funds from nonmembers, did not explicitly mention any religious denomination, id. at 231-32, but the Court nevertheless applied strict scrutiny because the law in effect favored some religions over others, id. at 246-47. The Executive Order violates Larson’s clear command. The Order’s refugee provisions explicitly rely on religion as a basis for classification by ordering federal officials 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.” Order, § 5(b). President Trump has left no doubt that the purpose of this provision is to favor Christian refugees over Muslim refugees.37 In addition, the Order’s travel ban singles out nationals of
37 See David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority as Refugees, CBN News (Jan. 27, 2017), http://bit.ly/2kypiFy (“[Interviewer:] The refugee program, or the refugee changes you’re looking to make. As it relates to persecuted Christians, do you see them as kind of a priority here?” President Trump: “Yes. …. Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible . . . . And I thought it was very, very unfair. So we are going to help them.”).
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seven overwhelmingly Muslim countries: 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). Order, § 3(c).38 That the Order stops short—for now—of imposing a ban on nationals of other predominantly Muslim states does not prevent it from being recognized as exactly what the President promised to deliver: an anti-Muslim religious classification. The Order thus violates the “principle at the heart of the Establishment Clause, that government should not prefer one religion to another.” Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 703 (1994).
In addition to this fundamental prohibition on religious preferences, Establishment Clause case law requires the government to act with a secular purpose, and holds that the “principal or primary effect” of the government’s action “must be one that neither advances nor inhibits religion.” Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). Courts do not blindly defer to the government’s judgment about whether a sufficient secular purpose is present. “When a governmental entity professes a secular purpose for an arguably religious policy, the government’s characterization is, of course, entitled to some deference. But it is nonetheless the duty of the courts to ‘distinguis[h] a sham secular purpose from a sincere one.’” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (quoting Wallace v. Jaffree, 472 U.S. 38, 75 (1985)) (O’Connor, J., concurring in the judgment). See also Mellen v. Bunting, 327 F.3d 355, 372-73 (4th Cir. 2003) (same). In fulfilling this duty, courts must examine all “probative evidence,” exercise “common sense,” and refuse “to turn a blind eye to the context in which [the] policy
38 Pew Research Center, The Global Religious Landscape 45-50 (2012), http://bit.ly/2k4Us8B (last visited February 8, 2017).
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arose.” McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 866 (2005) (alteration in original). In particular, the “historical context” of the government’s action and “the specific sequence of events leading to [its] passage” must be taken into account. Id. (alteration in original).
The Executive Order violates both the secular purpose prong and the effects prong of the Lemon test. The many statements made by the President and his advisors concerning the Executive Order establish that its primary purpose is to make good on the “Muslim ban” that Trump promised during the 2016 election campaign.39 In this regard, even the across-the-board pause in the U.S. Refugee Admissions Program, Order § 5(a), is suspect, for during the period from October 1, 2016, through January 31, 2017, the majority of refugees coming into the United States arrived from majority-Muslim nations.40 As for the effects prong, the Supreme Court has held that it is violated when the government’s action “would cause a reasonable observer to fairly understand it in its particular setting as impermissibly advancing or endorsing religion.” Lambeth v. Bd. Of Commrs Of Davidson Cty., N.C., 407 F.3d 266, 271 (4th Cir. 2005) (citing Cty. of Allegheny v. ACLU, 492 U.S. 573, 598-600 (1989)). Again, in light of the evidence described above, the Trump Administration has left little doubt as to the desired effect of the Order.
39 Donald Trump proposes “total and complete shutdown of Muslims entering the United States,” http://www.vox.com/2015/12/7/9867900/donald-trump-muslims (last visited February 8, 2017). 40 Department of State, Bureau of Population, Refugees, and Migration, Office of Admissions Refugee Processing Center, Refugee Arrivals by Nationality, https://static1.squarespace.com/ static/580e4274e58c624696efadc6/t/58989ff63e00be25e12d46d3/1486397432465/Arrivals+by+ Nationality+-+Map2.6.17.pdf (last visited February 8, 2017).
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3.

The Executive Order Violates The Due Process Clause.

The Executive Order also denies due process of law to individuals within the amici

States. 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.

For example, Congress has provided that lawful permanent residents and persons to whom the

United States has granted refugee or asylee status cannot be summarily excluded from the United

States, regardless of their country of origin.41 Under Section 1252 of the INA, such persons are

entitled to judicial review of any administrative determination seeking to subject them to

expedited removal. See id. § 1252(e)(2).42

These “statutory rights granted by Congress” confer an entitlement to treatment that

creates a property interest under the Due Process Clause of the United States Constitution

because some “[m]inimum due process rights attach to statutory rights.” Dia v. Ashcroft, 353

41 Indeed, as to lawful permanent residents, the Supreme Court has held that “an ‘innocent, casual, and brief excursion’ . . . outside this country’s borders would not subject” such a person “to the consequences of an ‘entry’ on his return.” Landon v. Plasencia, 459 U.S. 21, 29 (1982) (quoting Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963)). 42 8 U.S.C. § 1252(e)(2) states in full:
Judicial review of any determination made under section 1225(b)(1) of this title is available in habeas corpus proceedings, but shall be limited to determinations of—
(A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under such section, and (C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158 of this title, such status not having been terminated, and is entitled to such further inquiry as prescribed by the Attorney General pursuant to section 1225(b)(1)(C) of this title.
8 U.S.C. § 1225(b)(1)(A)(i), in turn, sets forth statutory procedures for expedited removal.
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F.3d 228, 239 (3d Cir. 2003) (alteration in original, quotation marks omitted); see also Meachum v. Fano, 427 U.S. 215, 226 (1976); Selgeka v. Carroll, 184 F.3d 337, 342 (4th Cir. 1999).
Moreover, where lawful permanent residents are concerned, the Supreme Court has repeatedly recognized that the Due Process Clause’s “constitutional protection of an alien’s person and property is particularly strong.” Demore v. Kim, 538 U.S. 510, 543-44 (2003). “Once they are admitted to permanent residence, [lawful permanent residents] share in the economic freedom enjoyed by citizens: they may compete for most jobs in the private and public sectors without obtaining job-specific authorization, and apart from the franchise, jury duty,” and the ability to receive “certain forms of public assistance, their lives are generally indistinguishable from those of United States citizens.” Id. at 544.
Thus, even apart from the statutory entitlements conferred by the INA, lawful permanent residents who seek to return to the United States after a short stay abroad are “entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude [them].” Landon v. Plasencia, 459 U.S. 21, 33 (1982) (referencing illustrative cases). Although the government has represented that lawful permanent residents are no longer barred from entry by section 3(c) of the Order, they remain covered by its plain language, and the government’s purported voluntary cessation of that aspect of the travel ban does not moot Virginia’s claims on their behalf. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (describing voluntary cessation exception to mootness).
Holders of multiple-entry visas for work and study in the United States, who are returning to the United States from short visits abroad, are likewise entitled to at least minimal due process protections by virtue of their connection to our country, the magnitude of what they have at stake, and the lack of any substantial government interest in excluding otherwise
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admissible persons whom United States consular authorities have already extensively screened
and approved for entry and re-entry. See, e.g., Plasencia, 459 U.S. at 34 (applying to the
immigration context the Supreme Court’s test for determining the specific dictates of “due
process” set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Removal of a person who
is otherwise authorized to enter the United States for purposes of temporary residence “visits a
great hardship on the individual and deprives him or her of the right to stay and live and work in
this land of freedom.” Bridges v. Wixon, 326 U.S. 135, 154 (1945) (brackets omitted); see also
Plasencia, 459 U.S. at 34; Jordan v. De George, 341 U.S. 223, 231 (1951). This is especially
true for visa-holders who have exercised their rights to bring their spouses and families to the United States.43 When the government excludes such persons, it causes them to “lose the right to
rejoin [their] immediate family, a right that ranks high among the interests of the individual.”
Plasencia, 459 U.S. at 34.
C. The Balance of Hardships Weighs Heavily In Favor Of Granting Virginia’s Requested Preliminary Injunction, Which Is In The Public Interest.
In addition to the irreparable injuries that the Executive Order is inflicting on States’
proprietary interests, the Executive Order also harms the welfare of the people of our States.
43 See, e.g., 8 U.S.C. § 1101(a)(15)(F)(ii) (defining spouse and minor children of certain student visa holders to be non-immigrants); 8 C.F.R. § 214.2(f)(3) (describing admissibility and visa eligibility requirements for spouse & minor children of student-visa holder); 8 U.S.C. § 1101(a)(15)(H) (defining certain temporary workers to be nonimmigrants); 8 C.F.R. § 214.1(a)(1)(iii) (creating new nonimmigrant category for spouses and minor children of temporary workers with visas pursuant to § 1101(a)(15(H)); 8 C.F.R. § 214.2(h)(9)(iv) (describing admissibility and visa eligibility of spouse & minor children of these temporary workers); 8 U.S.C. § 1101(a)(15)(J) (defining spouse and minor children of certain medical researchers, scholars, and professors to be nonimmigrants); 8 C.F.R. § 214.2(j)(1) (describing admissibility and visa eligibility requirements for spouse & minor children of J-visa researchers, scholars and professors).
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Protecting the public against such harms is not only at the core of the balance-of-harms and public-interest prongs of the preliminary injunction standard as applied here, but also relates directly to the States’ well-established sovereign and quasi-sovereign interests. See, e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601-08 (1982) (describing those interests).
1. The Executive Order Is Gravely Harming People In Our States. The Executive Order presumptively bars entry into the United States for all nationals of the seven affected countries, even if they are otherwise lawfully authorized to enter or re-enter this country on the basis of immigration documents previously issued by U.S. authorities. Residents of the amici States have been prevented from traveling home, and their family members have been prevented from visiting them. Indeed, after the Order was issued, many such persons were even detained for days at airports at airports throughout the United States— often without access to counsel—when they attempted to enter the country.44 Numerous longterm and temporary residents of the amici States were victims of the resulting turmoil, which also broadly disrupted travel at all major United States airports, many of which are located in the
44 Michael D. Shear et al., Judge Blocks Trump Order on Refugees Amid Chaos and Outcry Worldwide, N.Y. Times (Jan. 28, 2017), https://goo.gl/OrUJEr (last visited February 8, 2017); Amanda Whiting, Despite Court Order, US Officials Won’t Allow Lawyers at Dulles to See Detainees, Washingtonian (Jan. 29, 2017), https://www.washingtonian.com/2017/01/29/customs-and-border-protection-still-not-allowinglawyers-to-see-detainees/ (last visited February 8, 2017).
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amici States. See, e.g., Alfred L. Snapp & Son, 458 U.S. at 602 (noting States’ independent
interest “in the well-being of [their] populace”).
These harms have been exacerbated by the government’s shifting and inconsistent
implementation of the Executive Order, which “unleashed global chaos” almost as soon as it was
issued on January 27.45 Customs and border control officials arrived at airports on January 28
without instructions on how to implement it.46 The lack of advance warning led to “homeland
security officials ‘flying by the seat of their pants[]’ to try to put policies in place.”47 Officials at
different airports applied different policies.48 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.49 On February
1, the White House Counsel acknowledged “that there has been reasonable uncertainty about
45 Michael D. Shear & Ron Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/2017/01/29/us/politics/donald-trump-rush-immigration-orderchaos.html?_r=0 (last visited February 8, 2017) 46 Id. 47 Id. 48 See, e.g., Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017), www.reuters.com/article/us-usa-trumpimmigration-confusion-idUSKBN15D07S (last visited February 8, 2017) (while many visaholders reported being “allowed into the country without a problem,” some lawful permanent residents were “turned away”). 49 See, e.g., Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban (Jan. 30, 2017), http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/index.html (last visited February 8, 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), https://goo.gl/6krafi (last visited February 8, 2017).
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whether” the travel ban applies to lawful permanent residents of the United States, and purported to “clarify that Sections 3(c) and 3(e) [of the Order] do not apply to such individuals.”50
Without judicial action staying the implementation of the Executive Order across the country, our States will see a return of the chaos experienced in our airports beginning on the weekend of January 28 and 29, and continued serious harms to the individuals who live, work, and study in our States; the institutions that employ and educate such persons; and the families they are part of and the communities in which they reside. Our universities will continue to face uncertainty about whether affected students will be allowed to resume their studies;51 our businesses will not know if and when affected employees will be allowed to return to their
50 See Memorandum to the Acting Secretary of State, the Acting Attorney General, and the Secretary of Homeland Security from Donald F. McGahn II (Feb. 1, 2017), www.politico.com/f/?id=00000159-fb28-da98-a77d-fb7dba170001 (last visited February 8, 2017). 51 See Class Action Compl. For Declaratory and Injunctive Relief ¶¶ 45-48, Al-Mowafak v. Trump, No. 17-cv-557 (N.D. Cal. Feb. 2, 2017), ECF No. 1 (describing case of Wasim Ghaleb, a Yemeni national currently studying business administration at Grossmont College in San Diego on a valid F-1 visa, who traveled to Saudi Arabia for a family trip on January 15, 2017 and who is being prevented from returning to the United States because of the Executive Order); see also First Am. Pet. for Writ of Habeas Corpus and Class Compl. for Declaratory and Injunctive Relief ¶¶ 18, 52-54, 71, Aziz v. Trump, No. 17-cv-116 (E.D. Va. Feb. 3, 2017), ECF No. 7 39 (detailing additional instances of individuals traveling abroad who are unable to return because of the Executive Order).
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offices; 52 and a broad swath of our residents will be unable to visit with overseas family
members or return home if they do.53
2. The Executive Order Is Injuring States’ Sovereign and QuasiSovereign Interests.
States have a legally cognizable interest in exercising “sovereign power over individuals
and entities within . . . [their] jurisdiction” through creation and enforcement of “a legal code,
both civil and criminal.” Alfred L. Snapp & Son, 458 U.S. at 601. States also possess a quasi-
sovereign interest in protecting the civil rights of all residents within their jurisdiction. Id. at
608-09. 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 they can extend employment and other opportunities.54 Although the
52 See Decl. of Ayesha Blackwell-Hawkins, Esq., Washington v. Trump, No. 17-cv-141 (W.D. Wash., Jan. 30, 2017), ECF No. 6(declaration from Amazon employee stating that company’s employees may not be able to travel and that company has instructed one of its lawyers not to make a business trip to the United States for fear that she may be detained); see also Jack Nicas, Google Criticizes Impact on Staff of Trump Immigration Order, Wall St. J. (Jan 28., 2017), available at https://www.wsj.com/articles/google-criticizes-impact-on-staff-of-trumpimmigration-order-1485596067 (last visited Feb. 5, 2017) (reporting on e-mail from Google’s CEO that expressed concern that its employees will not be able to return from abroad). 53 Jared Maslin, ”It’s Tearing Families Apart.” 6 Stories of Lives on Hold Due to Trump’s Visa Ban, Time (Feb. 2, 2017), available at http://time.com/4649876/donald-trump-visa-banexecutive-order-lives/ (last visited Feb. 5, 2017) (Iraqi-born U.S. citizen returned to Iraq to help his wife apply for a visa; and although wife procured a visa, officials will not let her enter the United States because of Executive Order; the couple remains in Iraq). 54 See, e.g., Cal. Const. art. I, §§ 7-8; Cal. Gov’t Code §§ 11135-11137, 12900 et seq.;; Conn. Gen. Stat. § 46a-60; Ill. Const. art. I, § 3; Ill. Const. art. I, § 17; 740 ILCS 23/5 (a)(1); 775 ILCS 5/1-102 (A); 775 ILCS 5/10-104 (A)(1); 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
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Case 1:17-cv-00116-LMB-TCB Document 84 Filed 02/09/17 Page 27 of 32 PageID# 998 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. Indeed, the statements of the President and his senior advisers and the rushed process by which the Executive Order was rolled out without thoroughly consulting federal agencies responsible for national security suggest that this particular Order was not driven by national security, but by unlawful animus. See Part I.B.1 & n. 31 above.
Gov’t § 20-606; 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; R.I. Gen. Laws 28-5-7(1)(i).
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3. Virginia’s Requested Preliminary Injunction Is In The Public Interest.
All of the facts described above—the chaos unleashed by the Executive Order and the harms it is inflicting on our States, our people, businesses, airports, hospitals, universities, families and communities—demonstrate why Virginia’s requested preliminary injunction is in the public interest. In addition, as the Fourth Circuit has noted, “upholding constitutional rights surely serves the public interest.” Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 191 (4th Cir. 2013) (quoting Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002)). II. A Nationwide Preliminary Injunction Is Necessary To Provide Complete Relief.
A nationwide injunction is necessary to maintain the status quo prior to the issuance of the Executive Order and to provide complete relief to Virginia and prevent the irreparable harms described above. The “scope of injunctive relief is dictated by the extent of the violation established,” Califano v. Yamasaki, 442 U.S. 682, 702 (1979), and “[i]t is well established … that a federal district court has wide discretion to fashion appropriate injunctive relief in a particular case.” Richmond Tenants Org., Inc. v. Kemp, 956 F.2d 1300, 1308 (4th Cir. 1992) (citations omitted). As the Fourth Circuit has noted, “[w]hen required by the circumstances of the case, district courts have issued injunctions which apply to conduct by the Attorney General of litigation in other federal courts.” Id.; see also id. at 1309 (nationwide injunction was “appropriately tailored to prevent irreparable injury”); Texas v. United States, 809 F.3d 134, 18788 (5th Cir. 2015) (affirming nationwide injunction in light of the constitutional requirement of a “uniform Rule of Naturalization,” the need for a “comprehensive and unified system” of immigration policy, and the likelihood that a narrower injunction would be ineffective in the
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Case 1:17-cv-00116-LMB-TCB Document 84 Filed 02/09/17 Page 29 of 32 PageID# 1000 immigration context) (emphases in original), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016). The interconnections among this country’s economic, transportation, and educational systems frustrate any attempt to provide effective interim relief on less than a nationwide basis. An injunction limited to the geographical boundaries of Virginia would not sufficiently protect firms and institutions that conduct business in multiple states or those noncitizens who must arrive through entry points outside of Virginia. And an injunction limited to visa holders, lawful permanent residents, or both, who reside, or intend to reside, in Virginia, would be utterly unworkable, as the federal government has made no showing that it would be able to devise and implement an effective system for distinguishing any such subgroup. Only a nationwide injunction will provide complete relief.
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CONCLUSION

For the foregoing reasons, this Court should grant the Commonwealth of Virginia’s

motion and enter a preliminary injunction enjoining the operation of the Executive Order on a

nationwide basis.

Dated: February 8, 2017

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,
LISA MADIGAN Attorney General State of Illinois DAVID FRANKLIN Solicitor General 100 West Randolph Street, 12th Floor Chicago, IL 60601

JOSH SHAPIRO Attorney General Commonwealth of Pennsylvania JONATHAN SCOTT GOLDMAN Executive Deputy Attorney General Civil Law Division Strawberry Square, 15th Floor Harrisburg, PA 17120

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
KARL A. RACINE Attorney General District of Columbia
. /s/ Michael A. Tilghman . MICHAEL A. TILGHMAN II [VSB No. 77397] Assistant Attorney General Suite 630 South 441 Fourth Street, N.W. Washington, D.C. 20001 (202) 727-6247 (202) 741-8676 (fax)
michael.tilghman@dc.gov

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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
MATTHEW P. DENN Attorney General State of Delaware Carvel State Building, 6th Floor 820 North French Street Wilmington, DE 19801
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
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 NE Salem, OR 97301
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
ROBERT W. FERGUSON Attorney General State of Washington 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100

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CERTIFICATE OF SERVICE
I certify that on the 9th day of February, 2017, I filed the foregoing with the Clerk of
Court using the CM/ECF system, which will then send a notification of electronic filing (NEF) to
all ECF participants.
/s/ Michael A. Tilghman II MICHAEL A. TILGHMAN II [VSB No. 77397] Assistant Attorney General Suite 630 South 441 Fourth Street, N.W. Washington, D.C. 20001 (202) 727-6247 (202) 741-8676 (fax) michael.tilghman@dc.gov

 
 Case 1:17-cv-00116-LMB-TCB Document 85 Filed 02/09/17 Page 1 of 23 PageID# 1004

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)

Petitioners,

)

)

THE COMMONWEALTH OF VIRGINIA, )

)

Intervenor-Petitioner,

)

)

v.

)

)

DONALD TRUMP, President of the United )

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

REPLY BRIEF IN SUPPORT OF THE COMMONWEALTH OF VIRGINIA’S MOTION FOR A PRELIMINARY INJUNCTION

Mark R. Herring Attorney General of Virginia
Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us
Matthew R. McGuire (VSB No. 84194) Assistant Attorney General mmcguire@oag.state.va.us

Stuart A. Raphael (VSB No. 30380) Solicitor General
Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us
Counsel for the Commonwealth of Virginia

February 9, 2017

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TABLE OF CONTENTS Page
TABLE OF CONTENTS................................................................................................................ ii NOTE ON SUPPLEMENTAL MATERIALS AND ADMISSIBILITY OF HEARSAY ............. 1 ARGUMENT .................................................................................................................................. 2 I. Under the voluntary-cessation doctrine, the Government’s ad hoc decision to stop
applying the Executive Order to LPRs does not moot that part of the controversy. ...........2 II. The Government’s arguments on the merits are unpersuasive. ...........................................3
A. The President is not above the law and his actions are not immune from judicial review..........................................................................................................3
B. Section 3(c) denies procedural due process. ............................................................6 1. Din and Ibrahim show that Virginia residents have a constitutionally protected interest in not having their visas and LPR status arbitrarily canceled....................................................................................................... 6 2. Katzenbach presents no bar to Virginia’s claims...................................... 10
C. The Executive Order is based on anti-Muslim animus and therefore violates both the Establishment Clause and the Equal Protection aspects of the Due Process Clause. .........................................................................................12 1. Even before discovery has commenced, the evidence of anti-Muslim animus is overwhelming and warrants a preliminary injunction. ............. 12 2. The Government is wrong that Virginia cannot press the Establishment Clause and Equal Protection arguments. .................................................. 16
III. The Commonwealth, its residents, and its public universities are suffering ongoing irreparable harm. ..................................................................................................16
IV. The balance of equities weighs in favor of granting the injunction...................................17 V. The public interest strongly favors the injunction. ............................................................18 VI. The Court should enter the proposed preliminary-injunction order and issue
appropriate findings of fact. ...............................................................................................18 CONCLUSION............................................................................................................................. 20 CERTIFICATE OF SERVICE ..................................................................................................... 21
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NOTE ON SUPPLEMENTAL MATERIALS AND ADMISSIBILITY OF HEARSAY Yesterday, the Commonwealth filed a declaration by Assistant Attorney General Mamoona Siddiqui (ECF No. 61), attaching the articles cited in our opening brief (ECF No. 31). While newspaper stories are normally inadmissible, it is settled law that such hearsay is admissible on a motion for a preliminary injunction.1 Because the hearsay nature of a newspaper article goes to its weight, not admissibility, it is reversible error to exclude such hearsay.2 Nonetheless, the Commonwealth has done its best in the time allowed to locate actual video recordings documenting Respondents’ admissions. (ECF No. 61 ¶¶ 14(a)-(e), 27(a)-(e).) The Commonwealth has also submitted the following additional declarations: • a joint declaration by former Secretary of State Madeleine Albright and nine other former national security, foreign policy, and intelligence officials in the U.S. Government, who served in both Republican and Democratic administrations. (ECF No. 57 (the “National Security Declaration”).) The declaration demonstrates the unprecedented nature of the blanket ban and the absence of legitimate security considerations supporting it. • a declaration by Najwa Elyazgi, a Libyan student left stranded in Istanbul, Turkey for a week when she was trying to return through Dulles for her fourth-year studies at George Mason University. (ECF No. 54.) She was able to return last Saturday only because of the TRO in Washington v. Trump,3 not because of any assistance from the Government in this case. Although Najwa “love[s] the people of the United States,” the “nightmare” she experienced and 1 E.g., G.G. v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 725 (4th Cir.) (following Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)), mandate recalled, stay granted, 136 S. Ct. 2442, cert. granted in part, 137 S. Ct. 369 (2016). 2 Id. at 726 (“[T]he district court abused its discretion when it denied G.G.’s request for a preliminary injunction without considering G.G.’s proffered [hearsay] evidence.”). 3 No. 17-cv-141 (W.D. Wash.), appeal pending No. 17-35105 (9th Cir.) (oral argument held on Feb. 7, 2017).
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the uncertainty that the President has injected into immigration policy has forced her to look to Canada to pursue her Master’s degree. (Id. ¶ 17); and
• declarations by former plaintiff Tareq Aziz (ECF No. 55) and his immigration attorney, Roy Hodge (ECF No. 56), describing the multi-year process that Aziz and his brother (both Yemeni nationals) went through to obtain their visas, only to experience their own nightmare upon arrival at Dulles on January 28, where they were barred from entering the United States and coerced into signing a release they didn’t understand to relinquish their visa status before being removed, at their own expense, back to Addis Ababa, Ethiopia.
ARGUMENT I. Under the voluntary-cessation doctrine, the Government’s ad hoc decision to stop
applying the Executive Order to LPRs does not moot that part of the controversy. The February 1 memo from White House Counsel McGahn “that Sections 3(c) and 3(e) do not apply” to lawful permanent residents (“LPRs”) does not moot that part of the controversy. That guidance cannot alter the plain language of § 3, which—as this Court already found— covers LPRs in spite of McGahn’s opinion.4 McGahn’s opinion also contradicts the position of the Department of Homeland Security (“DHS”), only three days earlier, that § 3 applies to LPRs but that LPR “status will be a dispositive factor in our case-by-case determinations.”5 As those events prove, snap decisions can be easily reversed, so the issue is plainly not moot under the voluntary-cessation doctrine.6 “[B]ald assertions of a defendant—whether governmental or private—that it will not resume a challenged policy fail to satisfy any burden of showing that a claim is moot.”7 Indeed, reports that White House Strategist Steve Bannon ordered Secretary
4 ECF No. 42 at 2 & n.1. 5 ECF No. 34-1. 6 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). 7 Wall v. Wade, 741 F.3d 492, 498 (4th Cir. 2014).
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Kelly not to exempt LPRs, and Secretary Kelly refused, confirm the need to protect LPRs.8 II. The Government’s arguments on the merits are unpersuasive.
A. The President is not above the law and his actions are not immune from judicial review.
The Government makes the breathtaking claim that the President is not bound by the Constitution when it comes to immigration policy. It argues that 8 U.S.C. § 1182(f) gives the President unreviewable power 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,” and that he can do so 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.”9
That argument is self-evidently wrong. For starters, § 1182(f) deals only with “entry,” not with those already present, like LPR and visa holders who reside in Virginia. More importantly, Congress cannot authorize the President to violate the Constitution. What if the President wanted to ban entry of Jews? Or persons of color? May he freely discriminate on the basis of race or religion? Section 1182(f) also empowers the President to impose restrictions on aliens as a condition of entry. Could the President require aliens to wear a Red Crescent, a yellow Star of David, or a Cross, according to their faith? Could he require Muslims to be listed in a “Muslim registry” or “Muslim database,” something candidate Trump suggested in his campaign?10
We urge the Court to press the Government for an answer. Judge Robart could not extract one, with the Government demurring that “I don’t think your Honor needs to answer that 8 Josh Rogin, Inside the White House-Cabinet battle over Trump’s immigration order, Wash. Post (Feb. 4, 2017, 6:13 p.m.), https://goo.gl/3aYFlI. 9 8 U.S.C. § 1182(f). 10 See, e.g., Aaron Blake, Trump says we’ve known his Muslim ban and database plans ‘all along.’ But we still don’t—not really,” Wash. Post (Dec. 21, 2016), https://goo.gl/bgRA9D.
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question to decide this case.”11 The Ninth Circuit panel likewise got no response.12 The absence
of a limiting principle alone proves the error of the Government’s defense.
The fact that past presidents have exercised § 1182(f) powers does not help the
Government either. As a recent CRS survey found, § 1182(f) has never before been used to
restrict a class of aliens based on the President’s belief—however sincerely held—that religion alone makes them dangerous.13 The National Security Declaration provides another reality check: “The Order is of unprecedented scope.”14
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.15
The CRS survey—published only four days before the Executive Order was signed—noted that
very little law has emerged on the limits of § 1182(f), but that “future executive actions . . . could
potentially be seen to raise legal issues that have not been prompted by the Executive’s prior exercise of this authority,”16 such as an incompatibility of religion-based restrictions with “the
11 Video transcript of hearing at 31:10-32:50, Washington v. Trump, No. 17-CV-00141-JLR (W.D. Wash. Feb. 3, 2017) (Argument of Ms. Bennett, DOJ), https://goo.gl/DCNddg. 12 Audio Transcript at 17:38 to 21:38, Trump v. Washington, No. 17-35105 (9th Cir. Feb. 7, 2017), https://goo.gl/NryTVn. 13 See Kate M. Manuel, Executive Authority to Exclude Aliens: In Brief 6 (Cong. Research Serv. Jan. 23, 2017), https://fas.org/sgp/crs/homesec/R44743.pdf (“In no case to date . . . has the Executive purported to take certain types of action, such as . . . distinguishing between categories of aliens based on their religion.”). 14 ECF No. 57 ¶ 8. 15 Id. 16 Manuel, supra note 13, at 2 (emphasis added).
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First Amendment.”17 History also teaches that the Judicial Branch must not take it on faith when the President
insists that “national security” justifies actions that, in any other context, would be patently unconstitutional. During World War II, Solicitor General Charles Fahy misled the United States Supreme Court in two landmark cases—Hirabayashi and Korematsu—insisting that curfews and internment camps were needed to protect the country against the risk of sabotage by JapaneseAmerican citizens and Japanese aliens living on the West Coast.18 His defense of such measures sounds word-for-word like the Government’s defense here: that it is not “invidious . . . discrimination,” but rather 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.”19 Sadly, Solicitor General Fahy concealed contrary evidence, known to the Government and to others in the Office of the Solicitor General, “that only a tiny percentage, at most, of Japanese-Americans were potentially disloyal; that the ones who were disloyal were almost all known to the government; and any other problems could be handled on an individual basis.”20 We know there are many such contrary views in the Government about
17 Id. at 6. 18 See Neal Kumar Katyal, The Solicitor General and Confession of Error, 81 Fordham L. Rev. 3027, 3032-34 (2013) (detailing the Government’s concealment of information from the Supreme Court in Hirabayashi v. United States, 320 U.S. 81 (1943), and Korematsu v. United States, 323 U.S. 214 (1944)). See also Korematsu v. United States, 584 F. Supp. 1406, 1416-20 (N.D. Cal. 1984) (vacating Korematsu’s conviction because “there is substantial support in the record that the government deliberately omitted relevant information and provided misleading information in papers before the court”); Hirabayashi v. United States, 828 F.2d 591, 592, 59699 (9th Cir. 1987) (same, vacating Hirabayashi’s conviction). 19 Hirabayashi, 828 F.2d at 596 (quoting U.S. Brief). 20 Katyal, supra note 18, at 3033.
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§ 3(c), as shown by the dissent memo at the Department of State.21
A congressional commission found in the early 1980s that the Supreme Court’s unjust
rulings in Hirabayashi and Korematsu resulted from a systemic failure caused by “‘prejudice,
war hysteria and a failure of political leadership.’”22 When Judge Patel vacated Fred
Korematsu’s conviction in 1984, he warned Americans—in chilling prose worth reading and re-
reading—never to forget the painful lesson of undue deference to the Executive Branch:
[Korematsu] stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.23
B. Section 3(c) denies procedural due process.
The Commonwealth is likely to succeed on its procedural-due-process claim.
1. Din and Ibrahim show that Virginia residents have a constitutionally protected interest in not having their visas and LPR status arbitrarily canceled.
The Government simply elides the due-process claims of resident aliens who are already
in the United States with those of non-resident aliens who are trying to enter.24 “It has been
settled for over a century that all aliens within our territory are ‘persons’ entitled to the
21 ECF No. 61-11. 22 Korematsu, 584 F. Supp. at 1417 (quoting Personal Justice Denied 18 (Washington, D.C., 1982)). 23 Korematsu, 584 F. Supp. at 1420. 24 For instance, the Massachusetts TRO on which the Government relies focused on the fact that the claims were brought by “non-resident aliens” who were “coming into the United States,” Louhghalam v. Trump, 2017 WL 479779, at *4, *6 (D. Mass. 2017), failing to distinguish LPRs and visa holders who already are present in the United States.
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protection of the Due Process Clause.’”25 “The constitutional protection of an alien’s person and
property is particularly strong in the case of aliens lawfully admitted to permanent residence
(LPRs).”26 Accordingly, the Government implicitly concedes that LPRs have due process rights,
even if they have been absent and are in the process of returning to the U.S.27
Virginia residents holding student and work visas enjoy similar due process protection.
In Ibrahim, a case the Government ignores, the court held that the Government denied due
process to a Muslim PhD student from Malaysia with an F-1 visa to study at Stanford.28
Dr. Ibrahim was denied a visa to reenter the United States after the Government mistakenly put
her name on the “no fly” list and revoked her visa.29 Ibrahim suffered numerous indignities,
“any one of which” established a constitutionally protected interest:
[T]he private interests at stake in her 2005 deprivations were the right to travel, Kent v. Dulles, 357 U.S. 116, 125 (1958), and the right to be free from incarceration, Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004), and from the stigma and humiliation of a public denial of boarding and incarceration, Paul v. Davis, 424 U.S. 693, 701, 711 (1976), any one of which would be sufficient and all three of which apply on this record.30
That Virginia’s resident-visa holders enjoy a similar interest in not having their status
arbitrarily revoked also finds support in the position of six of the nine Justices in Kerry v. Din.31
Din, an American citizen, claimed that the Government violated her due process rights by
refusing to approve a visa for her husband to travel from Afghanistan. Five justices agreed that
25 Demore v. Kim, 538 U.S. 510, 543 (2003) (Souter, J., concurring in part) (emphasis added). 26 Id. 27 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.” (citing Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963))). 28 Ibrahim v. Dep’t of Homeland Sec., 62 F. Supp. 3d 909, 927-28 (N.D. Cal. 2014). 29 Id. at 911. 30 Id. at 928. 31 135 S. Ct. 2128 (2015).
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Din failed to state a due process claim in challenging the denial of her husband’s visa, but they
divided on the rationale. Three Justices, in a plurality opinion by Justice Scalia, joined by Chief
Justice Roberts and Justice Thomas, concluded that Din had not alleged a sufficient liberty interest.32 In a concurring opinion, Justice Kennedy, joined by Justice Alito, assumed without
deciding that Din had a constitutionally protected liberty interest, but they found that adequate
process was afforded because the Government informed Din that her husband’s visa had been denied under the terrorism bar.33 Since Din admitted that her husband worked for the Taliban,
he had “at least a facial connection to terrorist activity,” so the terrorism exclusion was warranted.34
Because the concurrence in Din provided the narrowest grounds for the decision, it controls.35 So it is significant that Justices Kennedy and Alito left open whether they agreed
with the four dissenting Justices about how constitutionally protected interests arise.
Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, explained that “[t]he
liberty interest that Ms. Din seeks to protect consists of her freedom to live together with her
husband in the United States. She seeks procedural, not substantive, protection for this freedom.”36 Importantly for this case, Justice Breyer described two ways such interests arise:
Our cases make clear that the Due Process Clause entitles her to such procedural rights as long as (1) she seeks protection for a
32 Id. at 2135 (plurality) (“Nothing in the cases Din cites establishes a free-floating and categorical liberty interest in marriage (or any other formulation Din offers) sufficient to trigger constitutional protection whenever a regulation in any way touches upon an aspect of the marital relationship.”). 33 Id. at 2139 (Kennedy, J., concurring). 34 Id. at 2141. 35 See Bryan Garner et al., The Law of Judicial Precedent 195 (2016) (“With a plurality decision, the only opinion to be accorded precedential value is that which decides the case on the narrowest grounds.”); Marks v. United States, 430 U.S. 188, 193 (1977) (same). 36 Din, 135 S. Ct. at 2142 (Breyer, J, dissenting, joined by Ginsburg, Sotomayor and Kagan, JJ.).
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liberty interest sufficiently important for procedural protection to flow “implicit[ly]” from the design, object, and nature of the Due Process Clause, or (2) nonconstitutional law (a statute, for example) creates “an expectation” that a person will not be deprived of that kind of liberty without fair procedures.37 Both of those formulations show that Virginia residents have a constitutionally protected interest in their visa status. First, Virginia residents who are present in the Commonwealth on student, work, or family visas have made significant investments of time and money in reliance on the baseline assumption that their visas, and the accompanying right to travel, will not be arbitrarily and capriciously canceled. This Court intuitively grasped the magnitude of those reliance interests in light of the extensive vetting that visa holders undergo and the lengthy investment of time required to study or teach at Virginia’s colleges and universities.38 President Reveley described the disruption that necessarily results when visiting students, scholars, and faculty cannot trust that they will be free to travel to and from Virginia under validly issued visas.39 Foreign students will cancel their enrollment or decline additional studies; for instance, Najwa Elyazgi, a senior at George Mason University, has been forced to look to Canada to pursue her Master’s degree when she graduates.40 Second, immigration-law procedures have created the type of reasonable “expectation” described by Justice Breyer. If President Trump had ordered the Secretary of State to revoke the visas of students and faculty currently residing in Virginia because they are Muslim or come from the seven majority-Muslim countries, they would have been afforded individualized
37 Id. at 2142 (citation omitted). 38 ECF No. 43, at 35:17-36:5. 39 ECF No. 32. 40 ECF No. 54 ¶ 17.
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process in the form of a removal proceeding to challenge the visa revocation.41 In removal proceedings under 8 U.S.C. § 1229 and § 1229a, visa holders would receive written notice advising them of: (1) “[t]he nature of proceedings”; (2) “[t]he legal authority under which the proceedings are conducted”; (3) “[t]he acts or conduct alleged to be in violation of law”; (4) “[t]he charges against the alien and the statutory provisions alleged to have been violated”; and (5) “[t]he time and place at which the proceedings will be held.”42 They would have the right to “be represented by counsel.”43 The removal proceeding would be held before an immigration judge, who would “receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses.”44 Those rules have thus “create[d] ‘an expectation’ that a person will not be deprived of that kind of liberty without fair procedures.”45
Notably, the Government does not even try to claim that § 3(c) of the Executive Order provides fair process or individualized review. So Virginia is likely to succeed on its proceduraldue-process claims, at a minimum, with respect to LPRs and persons residing in Virginia on student or worker visas (and accompanying family and spousal visas).
2. Katzenbach presents no bar to Virginia’s claims. The Government claims that the Commonwealth cannot assert those due process claims because, under South Carolina v. Katzenbach, a State is not a “person” within the meaning of the due process clause, and because States do not have “standing as the parent of its citizens to invoke these constitutional provisions against the Federal Government, the ultimate parens
41 See 8 U.S.C. § 1201(i) (stating that judicial review of visa revocation is available “in the context of a removal proceeding if such revocation provides the sole ground for removal under section 237(a)(1)(B)”). 42 See 8 U.S.C. § 1229(a)(1)(A)-(D), (G). 43 8 U.S.C. §§ 1229(a)(1)(E), 1229a(1)(b)(4)(A). 44 8 U.S.C. § 1229a(b)(1). 45 Din, 135 S. Ct. at 2142 (citation omitted).
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patriae of every American citizen.”46 Neither argument has merit. First, Virginia is not claiming that its own due process rights are violated by § 3(c).
Rather, it claims that it is directly injured (particularly its colleges and universities) as a result of the Government’s violation of its residents’ rights. Second, the Government continues to misapply the law of parens patriae standing and fails to credit that Virginia is also bringing this case in its proprietary capacity for direct injuries to the Commonwealth. As the Court explained last Friday, the parens patriae restrictions on standing in cases like Mellon and Katzenbach cannot be read as broadly as the Government would like, in light of Massachusetts v. EPA, and in light of the fact that a State’s challenge to unlawful executive action stands on a different footing from a challenge to legislative action.47 The Government does not even mention the Court’s opinion (or acknowledge that the Court already found that Virginia has standing).48
And even assuming for argument’s sake that a State may not use parens patriae standing to complain about the Government’s denial of its residents’ due process rights, the doctrine in Bond v. United States49 shows that a State can bring such claims when based on proprietary standing. In that case, Bond sought revenge against her husband’s paramour by placing a caustic substance on the victim’s mailbox, car-door handle, and door knob. Bond was convicted and sentenced to six years’ imprisonment for violating 18 U.S.C. § 229, a statute enacted to implement a chemical-weapons treaty. Bond attacked her conviction on the ground that the
46 383 U.S. 301, 323-24 (1966). See also Massachusetts v. Mellon, 262 U.S. 447, 485 (1923) (“[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.”). 47 ECF No. 42 at 7-10. 48 And in any case, on a preliminary injunction, the movant needs only a “substantial likelihood of standing.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015). 49 564 U.S. 211 (2011).
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statute infringed States’ rights under the Tenth Amendment. The lower courts ruled that she lacked standing to assert the States’ federalism interests.50 But in reversing, the Supreme Court
explained that Bond’s criminal conviction gave her standing to challenge the statute’s constitutionality, and once she had standing, she was free to raise the federalism claim.51 Under
Bond, “[i]f the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object.”52
The same is true in this case. Because the Government’s violation of the civil rights of
Virginia’s LPRs and visa holders is causing direct injury to the Commonwealth itself, Virginia is
entitled to complain about it and to seek to stop it. Indeed, it is analogous to the plaintiff in Din
complaining about the denial of a visa to her husband, and to the scholars in Mandel complaining about the denial of a visa to a Marxist theoretician.53
C. The Executive Order is based on anti-Muslim animus and therefore violates both the Establishment Clause and the Equal Protection aspects of the Due Process Clause. 1. Even before discovery has commenced, the evidence of anti-Muslim animus is overwhelming and warrants a preliminary injunction.
The Government does not deny that the President promised during his campaign to
impose a temporary ban on Muslims entering the country, nor does it deny the myriad other
statements, including those of Mr. Giuliani, collected in the Siddiqui Declaration (ECF No. 61),
50 Id. at 214-15. 51 Id. at 217; see also id. at 225-26 (“[W]here the litigant is a party to an otherwise justiciable case or controversy, she is not forbidden to object that her injury results from disregard of the federal structure of our Government.”). 52 Id. at 223 (emphasis added). 53 Din, 135 S. Ct. at 2131; Kleindienst v. Mandel, 408 US. 753, 762 (1972). See Audio Transcript, supra note 12, at 17:38 to 21:38 (repeated questioning by Judge Clifton asking the Government why the State of Washington is not asserting its own injury, just like the plaintiffs in Din and Mandel).
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that show that the Executive Order is how the President kept his promise.54 That direct evidence
of the President’s actual motivation is buttressed by strong circumstantial evidence. Although
the Order purports to be justified by the events of 9/11, not one of the 9/11 attackers came from
the seven countries at issue and the Executive Order inexplicably fails to address persons from
the countries from which the actual attackers came.55 Moreover, the refugee provision in § 5
contains a preference for religious minorities, which President Trump has said he views as
helping “persecuted Christians.”56
The overwhelming evidence that § 3(c) was based on animus towards Muslims justifies
looking behind the facially neutral language of that paragraph. Indeed, it is settled that a facially
neutral law may be invalidated by an unconstitutional motive, regardless of whether the claim is
brought under the Establishment Clause57 or as an Equal Protection challenge.58 The Supreme
54 See also Audio Transcript, supra note 12, at 1:03:54 to 1:04:11 (statement by DOJ lawyer Flentje that the Government does not deny Trump’s campaign promise or Giuliani’s statement). 55 National Security Declaration, ECF No. 57, ¶ 4. 56 ECF No. 61-6 at 2. 57 E.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 307 n.21 (2000) (“Even if the plain language of the October policy were facially neutral, the Establishment Clause forbids a State to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions.”) (citation and quotation marks omitted); Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 693 (1994) (invalidating facially-neutral school district drawn to be coextenstive with and to benefit Satmar Hasidim sect); Larson v. Valente, 456 U.S. 228, 244 (1982) (invalidating facially-neutral registration-and-reporting exemption for charitable organizations that disfavored the Unitarian Church); Erwin Chemerinsky, Constitutional Law: Principles & Policies 1243-44 (4th ed. 2011) (“It is firmly established that the government violates the establishment clause if it discriminates among religious groups. Such discrimination will be allowed only if strict scrutiny is met. All of the Justices on the current Court, regardless of their theory of the establishment clause, adhere to this principle.”). 58 E.g., Kiryas Joel, 512 U.S. at 728 (Kennedy, J., concurring) (“[T]he Establishment Clause mirrors the Equal Protection Clause. Just as the government may not segregate people on account of their race, so too it may not segregate on the basis of religion.”); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65, 267-68 (1977) (explaining that action that does not discriminate on its face may violate the Equal Protection Clause if it is based on discriminatory intent, which may be derived from “historical background of the decision,” the
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Court said in Larson that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”59 The Court similarly said
in Romer that “‘[i]f the constitutional conception of ‘equal protection of the laws’ means
anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.’”60 The unconstitutional motive invalidates the order, even assuming that the order might have been otherwise valid.61
The Government relies on Justice Kennedy’s concurrence in Din for the proposition that
courts should not “‘look behind’ the Government’s exclusion of [visa applicants] for additional factual details beyond what its express reliance on [the statute] encompassed.”62 But the
Government omits the crucial qualifier in that sentence: courts will not look behind the
Government’s stated reason “[a]bsent an affirmative showing of bad faith on the part of the consular officer.”63 Even assuming that the standard applicable to consular officers applies,
there is abundant evidence of the requisite “bad faith” here. The Executive Order is the Muslim
ban that candidate Trump promised to implement, and he has kept his promise. So Din provides
no support for the Government’s claim that a court cannot “look behind” the language of § 3(c).
Nothing in Din silently overruled decades of Equal Protection and Establishment Clause
“specific sequence of events,” and “legislative or administrative history”); Frontiero v. Richardson, 411 U.S. 677, 682 (1973) (“[C]lassifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny.”). 59 456 U.S. at 244. 60 Romer v. Evans, 517 U.S. 620, 634-35 (1996) (quoting Dep’t of Agric. v. Moreno, 413 U.S. 528, 534 (1973)). 61 E.g., McCreary Cty. v. ACLU, 545 U.S. 844, 866 n.14 (2005) (“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. This presents no incongruity, however, because purpose matters.”). 62 Government Br. at 15 (citing Din, 135 S. Ct. at 2141)). 63 135 S. Ct. at 2141 (emphasis added).
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doctrine.
It does not matter that § 3(c) does not yet ban “all” Muslims from entering the United
States. First, § 3(e) contemplates that additional countries may be added. Second, Giuliani
corroborated the religious pedigree of § 3(c) when he admitted that President Trump wanted a “Muslim ban” and wanted help “to do it legally.”64 Third, the fig leaf of limiting the order
initially to seven countries—as a pretense to survive legal challenge—cannot purge the
unconstitutional motive. Courts look for unconstitutional motive in the history and context of a challenged law.65 They do not apply the standard of “an absentminded objective observer,” who simply forgets everything that came before.66 As the Court emphasized in McCreary,
“reasonable observers have reasonable memories, and our precedents sensibly forbid an observer ‘to turn a blind eye to the context in which [the] policy arose.’”67 Fourth, the seven countries
chosen effectively hit the mark if the motive is anti-Muslim: four have Muslim populations of
99% or more (Iran, Iraq, Somalia, and Yemen), Libya is 96.6% Muslim, Syria 92.8% and Sudan 90.7%.68 And finally, recent polling shows that a majority of Americans perceive the Executive Order as a Muslim ban,69 especially minorities and young people; 80% of Hispanic-Americans,
64 ECF No. 61-4 at 1. 65 E.g., Santa Fe Indep. Sch. Dist., 530 U.S. at 309 (examining the “evolution” and history” of the high-school-football prayer policy to conclude that it promoted religion); McCreary, 545 U.S. at 857 (rejecting changes to Ten Commandments display designed to cover up the initial religious motivation). 66 McCreary, 545 U.S. at 866. 67 Id. 68 Pew Research Ctr., The Global Religious Landscape: a Report on the Size and Distribution of the World’s Major Religions as of 2010, 47-50 (2012), https://goo.gl/HVoVJI. 69 Public Policy Polling, After 2 Weeks, Voters Yearn For Obama 1, 4 (Feb. 2, 2017) (finding in poll conducted on January 30-31, 2017 that “52% of voters think that the order was intended to be a Muslim ban, to only 41% who don't think that was the intent”), https://goo.gl/1L5psC. See also CNN/ORC Int’l Poll 9 (Feb. 3, 2017) (55% think the Executive Order “is a ban on Muslims”), https://goo.gl/0xE98B.
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78% of African-Americans, and 80% of people between ages of 18 and 29.70 That perception
alone is problematic because § 3(c) obviously “conveys an unmistakable message of endorsement [of Christianity over Islam] to the reasonable observer.”71
At this stage of the proceeding, therefore, before discovery has even commenced, the
evidence of anti-Muslim animus is so overwhelming as to appear irrefutable. And the Supreme
Court held in McCreary that a district court may properly grant a preliminary injunction, as we
are requesting here, when the court finds sufficient evidence that government action is unconstitutionally motivated.72 The Court can and should apply that rule here.
2. The Government is wrong that Virginia cannot press the Establishment Clause and Equal Protection arguments.
The Government’s argument that Virginia cannot raise Establishment Clause and Equal
Protection objections fails for the same reasons as its quarrel about the due process claim. Even
if such a limitation exists on parens patriae authority after Massachusetts v. EPA, the
Commonwealth has proprietary standing resulting from its own direct harms. So under Bond,
Virginia is free to assert any constitutional objection to the Executive Order that, if sustained,
would invalidate it and thereby redress Virginia’s injuries.
III. The Commonwealth, its residents, and its public universities are suffering ongoing irreparable harm. The declarations by President Reveley (ECF No. 32) and GMU student Najwa Elyazgi
(ECF No. 54) establish the irreparable harm being suffered by the Commonwealth and the
70 Public Policy Polling, supra note 69, at 30, 36. 71 McCreary, 545 U.S. at 883 (O’Connor, J., concurring); Cty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 593-94 (1989) (“The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from ‘making adherence to a religion relevant in any way to a person’s standing in the political community.’”) (quoting Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring)). 72 545 U.S. at 873-74.
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faculty and students at Virginia’s public colleges and universities. In addition, a recent analysis by the firm College Factual concluded that, as of 2015, there were 23,763 students from the seven banned countries studying in the United States under a student visa.73 It estimated the nationwide economic impact if students discontinue their education at public colleges to be $466.6 million, and $235 million for private colleges.74 It estimated the adverse financial impact to Virginia alone to be $20.9 million.75 Another recent analysis, by Business Insider, noted that Virginia Tech is one of the nation’s top 10 universities that would suffer the most financial harm from the loss of tuition from foreign students from the seven banned countries; it estimated the loss of tuition, room, and board for those students to be $8.2 million at Virginia Tech alone.76 Because the United States has not agreed to waive its immunity to make Virginia whole for those losses, those losses will be irreparable if § 3(c) is not enjoined. IV. The balance of equities weighs in favor of granting the injunction.
The National Security Declaration (ECF No. 57) discredits the Government’s assertion that it will suffer injury by having to revert to its already-extensive vetting process for persons coming from the seven majority-Muslim countries. Indeed, the Government’s position in this case is irrational. The Government’s premise is that people from those countries pose a unique terrorism risk. But the Government is not taking any action against such persons who are already in the United States; it is only if they leave and want to come back that they will be denied reentry, thereby keeping the alleged threats bottled up here. That makes no sense and
73 College Factual, How Trump’s Executive Order Affects Thousands of International Students in the U.S. (Jan. 31, 2017), https://goo.gl/RRxHLv. 74 Id. 75 Id. 76 ECF No. 61-16 (Abby Jackson, The 10 US colleges that stand to lose the most from Trump’s immigration ban, Business Insider (Feb. 1, 2017), https://goo.gl/JKS1cp).
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shows that the Government’s putative security concern is a pretext for the promised Muslim ban.
The Government, in short, is asking the Court to repeat the mistakes of Hirabayashi and
Korematsu by simply trusting the President’s word that he has a valid security concern. History
proved after World War II that there was “no reasonable military assessment of an emergency at
the time,” that the orders “were based upon racial stereotypes,” and that the orders caused “needless suffering and shame.”77 That horrible mistake must not be repeated here.
V. The public interest strongly favors the injunction. The Government cannot seriously dispute that “upholding constitutional rights surely
serves the public interest.”78 The public interest also favors not disrupting Virginia’s colleges and Virginia’s private employers.79
VI. The Court should enter the proposed preliminary-injunction order and issue appropriate findings of fact. Paragraph 1 of Virginia’s proposed order (ECF No. 31-1) properly enjoins enforcement
of § 3(c) nationwide. The Fourth Circuit recognized in Richmond Tenants Organization v. Kemp
that district courts have discretion to issue nationwide injunctions when necessary to provide effective relief to the plaintiff, particularly when the defendant is the United States.80
Noncitizens traveling to Virginia from a foreign country obviously do not arrive only through the
port of entry at Dulles International Airport. And the Fifth Circuit has twice held that a
77 Hirabayashi, 828 F.2d at 593. 78 Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 191 (4th Cir. 2013). 79 The Court may also take judicial notice of the amicus brief filed in Washington v. Trump by one hundred leading companies (including Apple and Google) describing the adverse effect on American businesses flowing from the travel ban in § 3(c). See Br. of Tech. Cos. & Other Business as Amicus Curiae in Support of Appellees 10, Washington v. Trump, No. 17-35105 (9th Cir.), ECF No. 19-2 (“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.”). 80 956 F.2d 1300, 1308-09 (4th Cir. 1992).
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nationwide injunction was needed to block enforcement of President Obama’s DAPA program
because of the constitutional requirement of uniformity in enforcing the nation’s immigration rules.81 It would be odd and create a huge risk of error if a Virginia-only injunction required
CBP officials at the nation’s ports of entry to allow passage by only Virginia-bound LPRs and visa holders. The remaining paragraphs of the proposed order are mostly self-explanatory.82
Because the Government can be expected to immediately appeal a preliminary injunction
order, the Court should issue accompanying findings of fact and conclusions of law to facilitate
appellate review. The decision to issue a preliminary injunction is reviewed for “abuse of
discretion,” and a district court abuses its discretion only if “its decision is guided by erroneous legal principles or rests upon a clearly erroneous factual finding.”83 The Commonwealth’s
suggested factual findings and conclusions of law are filed with this reply brief.
In particular, the Commonwealth urges the Court to make findings on both the
procedural-due-process and the religious-animus claims. The religious-animus finding supports
broadly invalidating the application of § 3(c). Virginia residents have a stronger due process
claim than nonresidents who were overseas at the time that the order was issued. If the Court
decided the matter solely on procedural-due-process grounds, the relief might not be adequate. It
81 Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015) (upholding nationwide injunction against DAPA), aff’d by equally divided Court, 136 S. Ct. 2271 (2016); Texas v. United States, 787 F.3d 733, 768-69 (5th Cir. 2015) (denying emergency stay of nationwide injunction). 82 For instance, Paragraph 2 prevents the Government from coercing visa holders and LPRs into relinquishing rights protected by the preliminary injunction—a provision necessitated by reports that CBP pressured the Aziz plaintiffs to do just that. Paragraph 5 ensures that the Marshal Service will enforce the preliminary injunction without interference. Reports emerged in Los Angeles that the Marshal Service there refused to serve the court’s TRO on CBP while awaiting “instruction from the U.S. Attorney’s office.” See Erik Sherman, U.S. Marshals Accused of Not Serving Court Orders About Immigration Ban, Forbes (Feb. 1, 2017), https://goo.gl/6Xek19. Paragraph 5 directs the Marshal Service to seek any needed guidance from the Court, not the U.S. Attorney. And Paragraph 6 makes clear that it does not alter any immigration law that was in effect before the Executive Order was issued. 83 G.G., 822 F.3d at 724 (citations and quotation marks omitted).
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might not cover, for instance, the Iranian PhD candidate who had been approved and cleared for a visa to return to the United States to defend his dissertation, but who does not presently have a Virginia residence.84
Moreover, because this case involves an unprecedented abuse of Executive Power by a President who kept his campaign promise to implement a Muslim ban, the Judicial Branch must call it out for what it is. We cited Plessy in our opening brief about the importance of rooting out the seeds of religious hatred that are planted under the sanction of the Executive Order. But Korematsu broods over this case too. In vacating Korematsu’s conviction because of the “profound injustices” resulting from the Government’s untruths about the threat of sabotage by Japanese-Americans and Japanese aliens living in California, Judge Patel said that “extraordinary instances require extraordinary relief.”85 The extraordinary abuse of power at issue in this case warrants a commensurate finding that § 3(c) is based on Muslim animus. Nothing short of that will begin to heal the wound that the Executive Order has inflicted on our Republic.
CONCLUSION The Court should issue the preliminary injunction substantially in the form proposed.
Respectfully submitted, COMMONWEALTH OF VIRGINIA,

84 ECF No. 32 ¶ 6. 85 584 F. Supp. at 1413.

By:

/s/

Stuart A. Raphael (VSB No. 30380)

Solicitor General

Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7240 – Telephone

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Case 1:17-cv-00116-LMB-TCB Document 85 Filed 02/09/17 Page 23 of 23 PageID# 1026
(804) 371-0200 – Facsimile sraphael@oag.state.va.us Mark R. Herring Attorney General of Virginia Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us Matthew R. McGuire (VSB No. 84194) Assistant Attorney General mmcguire@oag.state.va.us Counsel for the Commonwealth of Virginia
CERTIFICATE OF SERVICE I hereby certify that on February 9, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for the parties registered on the CM/ECF system.
By: /s/ Stuart A. Raphael
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 Case 1:17-cv-00116-LMB-TCB Document 101 Filed 02/09/17 Page 1 of 19 PageID# 1077

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

TAREQ AQEL MOHAMMED AZIZ, et al.,

Petitioners,

v.

Case No. 17-cv-116-LMB-TCB

DONALD TRUMP, President of the United States, et al.,

Respondents.

BRIEF OF THE AMICI CURIAE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY, CIVIL RIGHTS ORGANIZATIONS, AND NATIONAL BAR ASSOCIATIONS OF COLOR IN SUPPORT OF THE PETITIONERS

THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY

AKIN GUMP STRAUSS HAUER & FELD LLP

Robert S. Chang 901 12th Avenue, Sullivan Hall Seattle, WA 98122-1090 Telephone: (206) 398-4025 Facsimile: (206) 398-4261 Changro@seattleu.edu

James E. Tysse (VSB 73490) 1333 New Hampshire Ave, NW Washington, DC 20036 Telephone: (202) 887-4571 Facsimile: (202) 887-4288 jtysse@akingump.com

Robert A. Johnson (pro hac pending) One Bryant Park New York, NY 10036 Telephone: (212) 872-1000 Facsimile: (212) 872-1002 Rajohnson@akingump.com

Jessica M. Weisel (pro hac pending) 1999 Avenue of the Stars, Suite 600 Los Angeles, CA 90067 Telephone: (310) 229-1000 Facsimile: (310) 229-1001 Jweisel@akingump.com

Attorneys for Amici Curiae

Case 1:17-cv-00116-LMB-TCB Document 101 Filed 02/09/17 Page 2 of 19 PageID# 1078
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE .............................................................................1 SUMMARY OF ARGUMENT ...............................................................................2 ARGUMENT ...........................................................................................................3
I. The Plenary Power Doctrine Was Born Out Of Racist Notions And Outdated Understandings Of Sovereignty That Courts Now Reject. .........................................................................................3
II. Reviewing The Executive Order Will Not Interfere With The Proper Exercise Of Executive Power, But Will Protect Constitutional Norms. .........................................................................9
III. History Repudiates Decisions That Abdicate Judicial Review Of Executive And Legislative Actions Against Entire Races Or Nationalities. ...................................................................................... 11
CONCLUSION ......................................................................................................13
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TABLE OF AUTHORITIES
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
Landon v. Plasencia, 459 U.S. 21 (1982)...................................................................................................................11
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
Reno v. Flores, 507 U.S. 292 (1993)...................................................................................................................9
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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: Aleinikoff, T. Alexander, Citizens, Aliens, Membership and the Constitution, 7
Constitutional Commentary 9 (1990) ........................................................................................5
Greene, Jamal, The Anticanon, 125 Harv. L. Rev. 379 (2011)......................................................11
Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990).........................5
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
Kagan, Michael, Plenary Power is Dead! Long Live Plenary Power, 114 Mich L. Rev. First Impressions 21 (2015)...............................................................................................7
Klarman, Michael J., The Plessy Era, 1998 Sup. Ct. Rev. 303 (1998)..........................................11
Legomsky, Stephen H., Ten More Years of Plenary Power: Immigration, Congress, and the Courts, 22 Hastings Const. L.Q. 925 (1995) ...............................................9
Paulsen, Michael Stokes, 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
Pollvogt, Susannah W., Beyond Suspect Classifications, 16 U. Pa. J. Const. L. 739 (2014) .......................................................................................................................................12
Reisman, W. Michael, Sovereignty and Human Rights in Contemporary International Law, 84 Am. J. Int’l L. 866 (1990) ......................................................................6
Saito, Natsu Taylor, 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
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INTEREST OF AMICI CURIAE 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 during World War II defied military orders 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 This Brief is also submitted by all members of Amicus Curiae Asian Americans Advancing Justice (“Advancing Justice”), the national affiliation of five nonprofit, nonpartisan civil rights organizations: Asian Americans Advancing Justice – AAJC, Asian Americans Advancing Justice – Asian Law Caucus, Asian Americans Advancing Justice – Atlanta, Asian Americans Advancing Justice – Chicago, and Asian Americans Advancing Justice – Los Angeles. Members of Advancing Justice routinely file amicus curiae briefs in cases in this Court and other courts. Through direct services, impact litigation, policy advocacy, leadership development, and capacity building, the Advancing Justice affiliates advocate for marginalized
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. Counsel for the parties have consented to the filing of this brief. See Motion for Leave to File Amicus Brief, filed concurrently.
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members of the Asian American, Native Hawaiian, Pacific Islander and other underserved communities, including immigrant members of those communities.
Amicus Curiae the National Native American Bar Association’s (“NNABA”) core mission is advancing justice for Native Americans, Native Hawaiians and Alaska Natives, communities that have survived injustice in the American legal system for hundreds of years, as power has gone unchecked and institutionalized discrimination persisted, often with few rising to question it. NNABA believes justice for all Americans is advanced when, as here, citizens stand together to examine the fairness of actions taken by institutions.
Amicus Curiae the South Asian Bar Association of North America (“SABA”) is the umbrella organization for 26 regional bar associations in North America representing the interests of over 6,000 attorneys of South Asian descent. SABA provides a vital link for the South Asian community to the law and the legal system. Within the United States, SABA takes an active interest in the legal rights of South Asian and other minority communities. Members of SABA include immigration lawyers and others who represent persons who have been and will be affected by the Executive Order.
SUMMARY OF ARGUMENT In this and multiple, similar actions, the government has maintained that this Court may not review Executive Order 13769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” 82 Fed. Reg. 8977 (Jan. 27, 2017) (the “Executive Order”), because the President has “unreviewable authority” to suspend admission of aliens to this country. See, e.g., Respondent’s Memorandum of Law in Opposition to Intervenor-Petitioner Commonwealth of Virginia’s Motion for Preliminary Injunction (ECF 80 at 2, 14); Emergency Motion Under Circuit Rule 27-3 for Administrative Stay and Motion for Stay Pending Appeal at 2, State of Wash. v. Trump, No. 17-35105 (9th Cir. Feb. 4, 2017). That argument advances the “plenary
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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, 163 U.S. 537 (1896) was influenced by nineteenth century views considered anathema today, the plenary power doctrine derives from decisions like Chae Chan Ping v. United States, 130 U.S. 581 (1889) (the “Chinese Exclusion Case”) that were premised on outdated racist and nativist precepts that we now reject.
When confronted similarly outdated 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 “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 a District Court in the Western District of Washington recently 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 Executive Order “to fulfill its constitutional role in our tripart government.” Temporary Restraining Order at 6-7, State of Wash. v. Trump, No. 17-cv-00141 (W.D. Wash. Feb. 3, 2017). 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
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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, through 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 were incompatible with American society due to “differences of race” drove the outcome in plenary power doctrine cases, which are “inextricably linked” to the 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 that relied on the Chinese Exclusion Case. The “right of self-preservation” advanced as justification for the plenary power doctrine’s broad immunity in these exclusion cases was plainly ethnic and racial self-preservation, not the preservation of borders or national security. See, e.g., Chinese Exclusion Case, 130 U.S. at 608; Fong Yue Ting v. United States, 149 U.S. 698, 729-30 (1893) (discussing the requirement that Chinese resident 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
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.
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power doctrine, relying on an “aberrational form of the typical relationship between statutory 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 – its foundation in 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 constitution.”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 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 United Nations Convention Against Torture and authorizing issuance of related regulations, which
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).
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 404-05.
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prevent the U.S. government from removing or extraditing aliens to countries 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); see also 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 also 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 now apply contemporary constitutional principles in reviewing immigration actions by the political branches. Indeed, after more than a century of erosion, the plenary power doctrine does not appear to retain the support of a majority of justices on the 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 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). As explained below, courts have not abdicated – 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, generated three dissenting opinions, each of which highlighted a resident alien’s ties to the United States as a
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basis to justify greater legal protection. 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 four years earlier 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 government, and the language of our constitution. Id. at 754 (Fields, J., dissenting) (emphasis added).
Nearly 60 years later, judicial skepticism regarding an unrestrained plenary power
persisted. Dissenting in Harisiades v. Shaughnessy, 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. 342 U.S. 580, 599-600 (1952)
(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, dissenting in influential McCarthy-era
plenary power cases, “expressed serious concern that aliens would be denied access to judicial
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review in such harsh and unremitting terms.” Motomura at 560; see also Mezei, 345 U.S. at 217 (Black, J., 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”); Raya-Ledesma v. I.N.S., 55 F.3d 418, 420 (9th Cir. 1994) (finding application of 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
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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. REVIEWING THE EXECUTIVE ORDER WILL NOT INTERFERE WITH THE PROPER EXERCISE OF EXECUTIVE POWER, BUT WILL PROTECT CONSTITUTIONAL NORMS. Amici recognize that there are limits to judicial review and judicial overreach could
interfere with sensitive political matters and foreign relations. Those concerns, however, should not preclude judicial review of the Executive Order, particularly when the Supreme Court has cautioned against classifications based on national origin. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985) (classifications based on national origin are “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy”).
Neither the Plaintiffs nor Amici suggest that the judiciary can or should review every decision of the political branches. Review is necessary here because the Executive Order applies such a broad brush – suspending visas, prohibiting entry, and foreclosing any adjudications for all aliens of certain nationalities. Despite its purported aim of protecting national security by excluding possible terrorists, the Executive Order prohibits the entry of every person from the seven countries, ranging from infants seeking lifesaving medical attention to refugees fleeing civil war to wheelchair-bound senior citizens.4
4 In a different context, the Supreme Court has cautioned that overly broad state action toward a specified group may be indicative of discriminatory intent. In Romer v. Evans, the Court stated: “‘[D]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’” 517 U.S. 620, 633
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That the political branches might use national security as a smokescreen to discriminate against disfavored populations is not an unfounded concern. The Korematsu Center owes its existence to just such an incident: the shameful, World War II-era forced relocation and incarceration of more than 100,000 men, women and children of Japanese descent, purportedly for national security reasons, challenged in Korematsu v. United States, 323 U.S. 214 (1944). More than a half-century after that decision, the Solicitor General confessed error, acknowledging that the federal government knew at the time of the mass incarcerations that only “a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody.” Neal Katyal, Confession of Error: The Solicitor General’s Mistakes During the Japanese-American Interment Cases, Dep’t of Justice: Justice Blogs (May 20, 2011), https://www.justice.gov/opa/blog/confession-error-solicitor-generalsmistakes-during-japanese-american-internment-cases; see also Neal K. Katyal, The Solicitor General and Confession of Error, 81 Fordham L. Rev. 3027 (2013). The federal government’s revelation occurred decades after a district court reversed Mr. Korematsu’s conviction and found “substantial support in the record that the government deliberately omitted relevant information and provided misleading information in papers before the court.” Korematsu v. United States, 584 F. Supp. 1406, 1420 (N.D. Cal. 1984). The district court added that the Supreme Court’s decision “stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.” Id. Instead, courts “must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused.” Id.
(1996) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37-38 (1928)). If the breadth of such a law is “so discontinuous with the reasons offered for it,” it leads inexorably to the conclusion that the law was motivated by prejudice and bias, not a legitimate state interest. Id. at 632.
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Engaging in judicial review, when circumstances suggest that executive or legislative action arises from such fears and prejudices, provides that protection while simultaneously extending judicial scrutiny to only a limited category of actions by the political branches. The use of such a standard for deciding when review is warranted would, in fact, have had no effect on most of the Supreme Court plenary power doctrine cases decided since World War II. For instance, Knauff and Mezei challenged exclusion decisions made on an individual basis. In each case, individuals were denied entry following determination that their admission was contrary to the public interest. Knauff, 338 U.S. at 544-47; Mezei, 345 U.S. at 209-15. Although the Supreme Court invoked the plenary power doctrine in each case, and Mezei expressly relied on the Chinese Exclusion Case, neither decision provides any support for the argument that wholesale exclusions by race or nationality remain immune from review. The same is true of other Supreme Court decisions on which the United States has relied to support its plenary power argument. See, e.g., INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (appeal of deportation order based on finding that individual had committed serious, non-political crime); Landon v. Plasencia, 459 U.S. 21 (1982) (appeal from exclusion order by permanent resident alien barred from returning to the United States); Harisiades, 342 U.S. at 588-89 (appeals from three separate deportation orders based on aliens’ past membership in the Communist Party); Kleindienst v. Mandel, 408 U.S. 753 (1972) (denial of individual visa).
Thus, when a court engages in judicial review of policies directed at entire groups under circumstances suggestive of discriminatory intent, the court does not overstep its authority, but acts consistent with core constitutional principles. III. HISTORY REPUDIATES DECISIONS THAT ABDICATE JUDICIAL REVIEW
OF EXECUTIVE AND LEGISLATIVE ACTIONS AGAINST ENTIRE RACES OR NATIONALITIES.
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Perhaps it is not surprising that less than a decade after deciding the Chinese Exclusion Case, the Supreme Court 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 v. Board of Education of Topeka, 347 U.S. 483 (1954), and, like other cases that establish broad authority to discriminate against entire races or nationalities, are now considered the nadir of American jurisprudence. One reason, perhaps, that the Asian exclusion cases were not overturned by courts, unlike Plessy, is that the Asian exclusion and naturalization cases were abrogated by legislation. See Immigration and Naturalization Act of 1952, 8 U.S.C. §§ 1101-1537 et seq. (eliminating the racial bar to naturalization); Immigration and Naturalization Act of 1965, Pub. L. No. 89-236, 79 Stat. 911 (codified as amended at 8 U.S.C. §§ 1101, 1151-1157, 1181–1182, 1201-1202, 1204, 1227, 1253–1255, 1259, 1322, 1351) (abolishing discriminatory national origin quotas from the Immigration Act of 1924, Pub. L. No. 68-139, 43 Stat. 153, which pegged the desired racial demographics of this country based on 1890 Census).
Plessy and Korematsu are both 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.’”).
In much the same way the government urges here, those decisions gave broad deference to the political branches of government to take action against disfavored minorities. History, however, has rejected judicial sanction of those actions. Not only do modern courts dismiss those cases as wrongly decided, they condemn those courts for allowing racist views to go
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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 Michael Stokes Paulsen, 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 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 will look similarly at this case and this Court if it allows the Executive Order to evade review. Permitting the Executive Order to stand under the plenary power doctrine—a doctrine rooted in racism and xenophobia—will be seen for what it is: the judiciary’s abdication of its duty to stand as a bulwark against those who would undermine the nation’s core constitutional principles.
CONCLUSION For the foregoing reasons, this Court should adjudicate Plaintiffs’ claims regarding the illegality of the Executive Order.
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Dated: February 9, 2017
THE FRED T. 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 Changro@seattleu.edu

Respectfully submitted,
AKIN GUMP STRAUSS HAUER & FELD LLP
/s/ James E. Tysse James E. Tysse (VSB 73490) Robert A. Johnson (Pro hac pending) Jessica Michael Weisel (Pro hac pending) 1333 New Hampshire Ave, NW Washington, DC 20036 Telephone: (202) 887-4571 Facsimile: (202) 887-4288 jtysse@akingump.com
Attorneys for Amici Curiae

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CERTIFICATE OF SERVICE

I hereby certify that, on this 9th day of February 2017, I will electronically file the foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing (NEF) to all parties of record.

Dated: February 9, 2017

/s/ James E. Tysse
James E. Tysse (VSB 73490)
1333 New Hampshire Ave, NW Washington, DC 20036 Telephone: (202) 887-4571 Facsimile: (202) 887-4288 jtysse@akingump.com

Attorneys for Amici Curiae

 
 Case 1:17-cv-00116-LMB-TCB Document 102 Filed 02/09/17 Page 1 of 111 PageID# 1096

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., Petitioners,
v. DONALD TRUMP, President of the United States, et al.,
Respondents.

)

)

)

)

)

) )

Civil Action No.: 1:17-cv-116-LMB-TCB

)

)

)

)

)

DECLARATION OF MICHAEL KIENTZLE 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 PROPOSED AMICI CURIAE, IN SUPPORT OF INTERVENOR-PETITIONER

I, Michael Kientzle, hereby declare as follows: 1. I am over the age of eighteen and competent to testify. 2. I am an associate attorney 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 Petitioners.

Case 1:17-cv-00116-LMB-TCB Document 102 Filed 02/09/17 Page 2 of 111 PageID# 1097
3. Attached hereto as Kientzle 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.” 4. Attached hereto as Kientzle 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 Kientzle 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 Kientzle 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 Kientzle 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 Kientzle 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 Kientzle 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.
2

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10. Attached hereto as Kientzle 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.” 11. Attached hereto as Kientzle 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 Kientzle 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 Kientzle 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 Kientzle 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 Kientzle 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 8th day of February 2017.
______/s/_________________ MICHAEL KIENTZLE
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Kientzle Declaration Exhibit A

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

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

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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

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http://www.politico.com/story/2015/11/trump­close­mosques­216008

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Kientzle Declaration Exhibit B

2/6/2017Case 1:17-cv-00116-DLoMnalBd J-.TTCrumBp StDateomceuntmonePnretve1nt0in2g MuFsliimleIdmm0i2gr/a0tio9n/|1D7onaldPJaTgruemp9foor Pfr1es1id1entPageID# 1104

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­ 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.

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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

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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/)

Case 1:17-cv-00116-LMB-TCB Document 102 Filed 02/09/17 Page 13 of 111 PageID# 1108 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-

thoCusaasned1s:-1s7u-pcpvo-0rt0-s1h1a6r-iLaMh-Bjih-TadC/B) ofD6o0c0uMmuesnltim1s02livinFgileind t0h2e/0U9n/1it7ed PStaagtees1. 4Itsotfa1k1e1awPaayg,ecIaDp#tu1r1e0d9 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.

SinCceasthee1e:1a7rl-ycv2-0000011s,6C-LSMPBh-aTsCgBeneDroacteudmdeonzt e1n0s2ofFoilcecdas0i2o/n0a9l/p17apePrsa,gbelo1g5s,oaf n1d11rePpaogrtesIDth#at1110 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

AnoCtahseer p1r:o17b-lecmv-0w0i1th16th-LisMpBo-llTiCs BtheDwoacyutmhaetnqt u1e0s2tioFnisleadnd02a/n0s9w/1e7rs Paraegpeh1ra6soefd1. 1O1ftPena,gtehIeDy#a1re111 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

(httCpsa:s//etw1i:t1te7r-.ccov-m0/0P1r1o6g-sLTModBa-yT/CstBatusD/o6c13u7m8e2n0t61603254F7i6le5d82042)/,0a9n/1d7blePeadgineg1i7ntoof m11o1rePmagaeinIDst#re1a1m12 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.
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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

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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

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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

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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

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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."

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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."

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Republican Candidates Debate in North Charleston, South Carolina January 14, 2016

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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;

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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.

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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]

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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.

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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.

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But the good news is the next commander­in­chief is standing on this stage. [applause] And I give you my word, if I am

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fighting men will feel the full force and fury of the United States of America. [applause]

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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

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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

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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

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$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

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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

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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 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.

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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

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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...

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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 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]

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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 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?

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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]

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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?

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.

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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.

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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.

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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 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.

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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 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

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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.

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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.

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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.

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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.

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[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].
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.

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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?

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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.

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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

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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.

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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 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.

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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.

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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?

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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.

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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

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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 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.

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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

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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.
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?

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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.

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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.

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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

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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?

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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?

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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,

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2/6/2017Case 1:17-cv-00116-LMB-TCB Document C1N0N2.comF­ilTeradns0cr2ip/t0s 9/17 Page 64 of 111 PageID# 1159 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

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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)

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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

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ahead.

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?"
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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.

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COOPER: It's a great interview.

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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

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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

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COOPER: Does that mean cutting off heads?

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

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COOPER: On a ­­ yeah.

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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

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COOPER: You can't go on the internet and buy them. 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,

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2/6/2T0R17UCMaPs: .e.. b1e s:o1ft7er-,cbuvt-I'0ll 0be1re1a6dy-. LI mMeaBn,-yTouCkBnow, IDthoinck uthmat MeanrctoC1isN0gNo2i.ncgomtFo ­bileTearaddnisf0fcer2riep/nt0st p9er/s1on7. MaPrcoahgasebe7en3, yooufk1no1w1, mPortaalglyewIoDun#ded1. 1Yo6u8know,
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

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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

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politics which you can interpret in a multitude of different ways?
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.

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Kientzle Declaration Exhibit G

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

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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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

2/6/2017Case 1:17-cv-00116-LMB-TCBTranDscoricptu: DmoneanldtTr1um02p's naFtiiolneadl se0cu2ri/t0y s9p/e1ec7h ­ PPOaLITgIeCO87 of 111 PageID# 1182
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

2/6/2017Case 1:17-cv-00116-LMB-TCBTranDscoricptu: DmoneanldtTr1um02p's naFtiiolneadl se0cu2ri/t0y s9p/e1ec7h ­ PPOaLITgIeCO88 of 111 PageID# 1183
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

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Kientzle Declaration Exhibit H

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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.

DespiteCGaiusleian1i’:s1c7la-icmvt-h0a0t1th1e6o-rLdMerBha-Ts nCoB“relDigoiocuus mbaesins,t” t1h0a2t isnF’tiqleudite0t2ru/e09co/1ns7iderPinaggteha9t 1Truomf p1’s1m1 ePaasugreeIsDpe#ci1ﬁc1a8lly6states
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

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Christians in the Middle­East have been executed in large numbers. We cannot allow this horror to continue!
10:03 AM ­ 29 Jan 2017

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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.

Case 1:17-cv-00116-LMB-TCB Document 102 Filed 02/09/17 Page 92 of 111 PageID# 1187

Elliott Lusztig
@ezlusztig

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Full statement of John McCain and Lindsey Graham on Trump's EO on Immigration: reckless, ill­considered, irresponsible, counter­productive.
1:39 PM ­ 29 Jan 2017

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This is just the beginning. Help us hold President Trump accountable.

Case 1:17-cv-00116-LMB-TCB Document 102 Filed 02/09/17 Page 93 of 111 PageID# 1188
Kientzle Declaration Exhibit I

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Kientzle Declaration Exhibit J

2/6/2017Case 1:17-cv-M0i0ch1ae1l 6Fl-yLnnMinBAu-gTusCt:BIslamDismocau'vmicioeuns cta1nc0er2' in bFodilyeodf al0l M2u/s0li9m/s1th7at 'hPasatogbee e9xc9iseod'f­1C1N1NPPoliaticgse.coIDm # 1194
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,

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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:

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

Service.

http://www.cnn.com/2016/11/22/politics/kfile­michael­flynn­august­speech/

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"Field of Fight" with Ret. Lt. Gen. Michael T. Flynn

 Rapper falls on stage with Drake

Donald Trump's most bone-chilling tweet

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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

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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."

Case 1:17-cv-00116-LMB-TCB Document 102 Filed 02/09/17 Page 105 of 111 PageID# 1200
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.

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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.

Case 1:17-cv-00116-LMB-TCB Document 102 Filed 02/09/17 Page 106 of 111 PageID# 1201 Aaron Blake is senior political reporter for The Fix.  Follow @aaronblake

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Kientzle Declaration Exhibit L

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Kientzle Declaration Exhibit M

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 Case 1:17-cv-00116-LMB-TCB Document 111 Filed 02/13/17 Page 1 of 22 PageID# 1263

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et ~ Plaintiffs/Petitioners
v.
DONALD TRUMP, President ofthe United States, et al., Defendants/Respondents.

)

)

)

)

)

1: 17-cv-116 (LMB/TCB)

)

)

)

)

)

MEMORANDUM OPINION

In this civil action, the Commonwealth ofVirginia ("Commonwealth") alleges that

Executive Order 13,769, entitled "Protecting the Nation from Foreign Terrorist Entry into the

United States" (''the EO"}, violates the First and Fifth Amendments to the United States

Constitution, as well as the Immigration and Nationality Act and Religious Freedom Restoration

Act. Before the Court is the Commonwealth's Motion for a Preliminary Injunction, to which

defendants have responded and on which oral argument has been held. Attached to the

Commonwealth's motion were multiple exhibits and declarations. The defendants have

responded with no evidence other than the EO, which they have defended primarily with

arguments attacking the Commonwealth's standing to oppose the EO and emphasizing the

authority of the president to issue such an EO. For the reasons that follow, the Commonwealth's

Motion for a Preliminary Injunction will be granted.

I. FINDINGS OF FACT

A. The Executive Order On January 20, 2017, Donald Trump ("Trump") was inaugurated as the 45th President of

the United States. On January 27,2017, he signed the EO. Section 3 of the EO "proclaim[ed]

Case 1:17-cv-00116-LMB-TCB Document 111 Filed 02/13/17 Page 2 of 22 PageID# 1264
that the immigrant and nonimmigrant entry into the United States of aliens from" Syria, Iraq, Iran, Libya, Sudan, Yemen, and Somalia "would be detrimental to the interests ofthe United States" and "suspend[ed] entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order." [Dkt. 7-1] § 3(c). Although the EO specifically excludes "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"1 from the ban on entry, it does not list lawful permanent residents ("LPRs") among those excluded. ld. Section 5 ofthe EO suspends the United States Refugee Assistance Program ("USRAP") for persons from all countries for 120 days. Id. at§ S(a). Once the suspension has ended, the EO directs the Secretaries of State and Homeland Security "to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion ofthe individual is a minority religion in the individual's country of
nationality." ld. at§ S(b).
Section 1 describes the stated purpose for the EO as follows: Numerous foreign-hom individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism. [Dkt. 31-1] § 1. Section 2 goes on to declare it to be "the policy ofthe United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States;
1 The "G" series of visas are available to qualifying representatives of foreign governments and international organizations.
2

Case 1:17-cv-00116-LMB-TCB Document 111 Filed 02/13/17 Page 3 of 22 PageID# 1265
and to prevent the admission offoreign nationals who intend to exploit United States immigration laws for malevolent purposes." Id. § 2.
The EO was initially applied to LPRs, and the defendants have since conceded that Customs and Border Patrol ("CBP") initially stopped several LPRs at the border in the 24 to 48 hours after the EO was signed, although they represent that all such persons have since been permitted to enter the United States. After initial confusion within the executive branch, [Dkt. 61-17], Homeland Security Secretary John Kelly released a statement on Sunday, January 29, announcing that he "deem[ed] the entry of lawful permanent residents to be in the national interest" and that "lawful permanent resident status will be a dispositive factor in our case-bycase determinations," [Dkt. 61-1].
The next day, White House Counsel Donald F. McGahn II issued a memorandum stating that ''there has been reasonable uncertainty about whether [Section 3 of the EO] appl[ies] to lawful permanent residents ofthe United States. Accordingly, to remove any confusion, I now clarify that Section 3(c) ... do[es] not apply to such individuals." [Dkt. 34-1]. Defendants have argued that in light ofthis memorandum, the EO cannot be interpreted to apply to LPRs; however, a voluntary change ofpolicy cannot be taken as binding unless it is "absolutely clear" that the government will not revert to its original position. Friends ofthe Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). As the Ninth Circuit observed in related litigation, defendants have "offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the president ... and that proposition seems unlikely," nor have they "established that the White House counsel's interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing" it. Washington v. Trump,_ F.3d _, 2017 WL 526497, at *8 (9th
3

Case 1:17-cv-00116-LMB-TCB Document 111 Filed 02/13/17 Page 4 of 22 PageID# 1266
Cir. 2017). Accordingly, the Court finds that the EO presents an ongoing risk to the status of LPRs from the seven countries covered by the EO.
B. Injuries to the Commonwealth and its Residents The Commonwealth has produced evidence ofthe EO being disruptive to the operation of its public colleges and universities. As the declaration ofW. Taylor Reveley III ("Reveley"), who is president of the College of William & Mary and the chair ofthe Council of Presidents, a group consisting ofthe presidents and chancellors of Virginia's 14 public universities and colleges and 23 community colleges, [Dkt. 32] at~~ 1-2, explains, the EO affects international travel of at least 350 students attending Virginia Commonwealth University, Virginia Tech, George Mason University, the University of Virginia, and William & Mary combined.2 [Dkt. 32] at, 5. That number includes at least two students who were abroad when the EO was issued and were denied reentry to the United States on its authority. ld. at, 6.3 At one university, Iranian-born faculty and students "have had to cancel their plans to present their work at an international conference on engineering" because they believe they are likely to be denied reentry to the United States. Id. at , 7. The EO is also disrupting the process by which medical students "match" with academic hospitals for their residency, which takes place this month. Id. at , 8. At least two Virginia universities have already had to cancel appearances by foreign scholars as a result ofthe EO. Id. at, 9. Students have also begun withdrawing applications to attend Virginia schools as a result ofthe travel ban, and at least two students who had already announced an intention to enroll in Virginia schools have now abandoned those plans. ld. at
2 At oral argument, the Commonwealth represented that across all of its schools its estimate of affected persons has grown to 1,000 students and 66 faculty and staff members. 3 One of these students, Najwa Elyazgi, has since entered the United States, but only as a result ofthe District of Washington's order staying enforcement of the EO. [Dkt. 54], 11.
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~ 11. The affected students and faculty "must refrain from leaving the United States for fear of not being able to return," id. at ~ 7, and "are unsure whether they should take the trips they had planned to visit family and fulfill research obligations, whether future trips should be planned, and whether members oftheir family or research partners will be able to visit the United States," id. at ~ 14. The defendants provided no evidence to counter these representations.
The Commonwealth has also presented evidence that enforcement of§ 3(c) ofthe EO will have a financial impact on its colleges and universities. Most concretely, the EO will result in reduced revenue from tuition money from students who cannot return to continue their studies or who are unable to enroll. [Dkt. 32] at ~ 11. Department of Homeland Security data from 2015, the most recent year available, shows that 465 student visa holders from the affected countries were enrolled in Virginia schools. [Dkt. 61-15] at 4. College Factual, a company that specializes in higher education analytics, estimates that this could result in up to $20.8 million in lost tuition and fees. Id.; [Dkt. 61-16] at 1. Although the Commonwealth has not identified any specific grants or contracts that are in immediate jeopardy, it also argues that the EO may inhibit the ability of research universities to fulfill the terms of various grants and contracts. [Dkt. 32] at ~ 12.
Reveley also avers that university personnel are experiencing "anxiety, confusion, and distress" because ofthe uncertainty introduced by the EO, such that some universities "have experienced an uptick in students, employees, and faculty using their counseling services." Id. at ~ 14. Finally, Reveley and other administrators are concerned that the EO could imperil Virginia students who are studying abroad, by inflaming "anti-American sentiment[.]" Id. at~ 15. Again, defendants have not tendered any evidence to refute these concerns.
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C. The Government's Asserted Rationale for the EO Defendants have maintained that the EO is necessary to protect the United States from terrorist attacks to be carried out by nationals of the seven affected countries [Dkts. 31-1, 80]; however, they have not offered any evidence to identify the national security concerns that allegedly prompted this EO, or even described the process by which the president concluded that this action was necessary.4 And contrary to the national security concerns recited in the EO, the only evidence in the record on this subject is a declaration of 10 national security professionals who have served at the highest levels ofthe Department of State, the Department of Homeland Security, the Central Intelligence Agency, and the National Security Council through both Republican and Democratic administrations, [Dkt. 57], and at least four of whom "were current on active intelligence regarding all credible terrorist threat streams directed against the [United States] as recently as one week before the issuance of the" EO. Id. at ~ 2. They write 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 ofthe United States, rather than making us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds. Id. at ~ 3. They also observe that since September 11, 2011, "not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order." Id. at~ 4.
4 To the extent that such evidence might be classified, "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."
* Washington, 2017 WL 526497, at 10 n.8.
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D. The President's Public Comments The Commonwealth's evidence also contains several statements by the president and his
senior advisors on the subject of immigration to the United States by Muslims. Although defendants dispute the relevance of these statements, as discussed below, they have not contested
their accuracy. On December 7, 2015, then-candidate Trump issued a press released titled ''Donald J.
Trump's Statement on Preventing Muslim Immigration." [Dkt. 61-12]. In the statement, he called "for a total and complete shutdown of Muslims entering the United States until our
country's representatives can figure out what is going on." Id. The latter statement is consistent with views that the president has expressed on various
occasions over the last six years. A representative example5 can be found in a 2011 interview
with Fox News's Bill O'Reilly ("O'Reilly"). A portion of that interview reads:
O'Reilly: Is there a Muslim problem in the world? Trump: Absolutely. Absolutely. I don't notice Swedish people knocking down the World Trade Center.
O'Reilly: But you do believe overall there is a Muslim problem in the world. Trump: Well, there is a Muslim problem. Absolutely. You just have to turn on your television set. O'Reilly: And do you think it encompasses all Muslims? Trump: No. And that's the sad part about life. Because you have fabulous Muslims. I know many Muslims and they're fabulous people. They're smart. They're industrious. They're great. Unfortunately, at this moment in time, there is a Muslim problem in the world. And by the way, and you know it and I [sic] and I know it and some people don't like saying it because they think it's not politically correct.
[Dkt. 61-19] at 5.
5 The attachments to the Declaration of Mona Siddiqui [Dkt. 61] collect several other examples, although the Court does not consider every document in the Siddiqui declaration to be relevant.
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As the campaign proceeded, there were fewer references to an outright ban on Muslim

immigration, with the focus switched to a ban on persons from territories that have a Muslim

majority. Mr. Trump and then-vice-presidential candidate Mike Pence ("Pence") were asked

about this evolution in an interview with Lesley Stahl ("Stahl") on July 17, 2016. The relevant

portion reads:

Stahl: [I]n December, you [i.e., Pence] tweeted, and I quote you, "Calls to ban Muslims from entering the U.S. are offensive and unconstitutional." Trump: So you call it territories. OK? We're gonna do territories. We're not gonna let people come in from Syria that nobody knows who they are.

Stahl: [S]o you're changing ... your position.

.

Trump: --No, !-call it whatever you want. We'll call it territories, OK?

Stahl: So not Muslims?

Trump: You know-the Constitution-there's nothing like it. But it doesn't

necessarily give us the right to commit suicide, as a country, OK? And I'll tell

you this. Call it whatever you want, change territories [sic], but there are

territories and terror states and terror nations that we're not gonna allow the

people to come into our country.

[Dkt. 61-22] at 9-10.

On the morning ofFriday, January 27, 2017, the president gave an interview with the

Christian Broadcasting Network's David Brody ("Brody"):

Brody: Persecuted Christians, we've talked about this, the refugees overseas. The refuge~ program, or the refugee changes you're looking to make. As it relates to persecuted Christians, do you see them as kind of a priority here?
Trump: Yes.
Brody: You do? Trump: They've been horribly treated. Do you know ifyou 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 [sic], 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.

[Dkt. 61-6] at 2. That evening, the EO was signed.

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On Sunday, January 29, 2017, two days after the EO was signed, former Mayor ofNew York City Rudolph Giuliani ("Giuliani") said in an interview on Fox News, "'I'll tell you the whole history of it[.]' ... 'So when [Trump] first announced it, he said 'Muslim ban.' He called me up. He said, 'Put a commission together. Show me the right way to do it legally.' ... '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 [sic] substantial evidence that people are sending terrorists into our country.'" [Dkt. 61-4] at 1-2 (emphasis in original).
The president and his advisors deny that the EO represents the Muslim ban that the president spoke about during his campaign. Secretary Kelly said in an interview on Tuesday, January 31, 2017, '"This is not, I repeat not, a ban on Muslims.' ... 'We cannot gamble with American lives. I will not gamble with American lives. These orders are a matter of national security, and it is my sworn responsibility as secretary of homeland security to protect and defend the American people."' [Dkt. 61-17] at 3.
II. CONCLUSIONS OF LAW A. Justiciability As a threshold matter, defendants argue that courts "lack jurisdiction to review the Executive Branch's decisions concerning visa revocation and entry," at least in part because those decisions involve national security judgments. [Dkt. 80] at 14. The word 'Jurisdiction" was once a ''word of many, too many, meanings." Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 90 (1998) (internal citation and quotation marks omitted). Accordingly, the Supreme Court "has endeavored in recent years to 'bring some
9

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discipline' to the use of the term 'jurisdictional."' Gonzalez v. Thaler, 132 S. Ct. 641,648 (2012) (quoting Henderson v. Shinseki, 562 U.S. 428,435 (2011)). Because the modem concept addresses "a court's adjudicatory capacity," it refers to either "subject matter jurisdiction" or "personal jurisdiction." Henderson, 562 U.S. at 435.
Defendants have argued that exercising jurisdiction in this case would be ''an impermissible intrusion on the political branches' plenary constitutional authority over foreign affairs, national security, and immigration." [Dkt. 80] at 14. By advancing this argument, defendants appear to be invoking the political question doctrine, under which a court lacks subject matter jurisdiction over "a controversy ... where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it[.]" Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012) (internal quotation marks and citations omitted).
The issues in this case are not textually committed to another department by the Constitution. To the contrary, the Commonwealth argues that the EO is in violation of constitutional and statutory law, and that resolving these claims requires interpreting the EO, the Immigration and Nationality Act, and the Constitution. "This is a familiar judicial exercise." Zivotofsky, 566 U.S. at 196. "At least since Marbury v. Madison, [the Supreme Court has] recognized that when" government action "is alleged to conflict with the Constitution, 'it is emphatically the province and duty of the judicial department to say what the law is."' Id. (quoting Marbury, 1 Cranch 137, 177 (1803)). "That duty will sometimes involve the '[r]esolution of litigation challenging the constitutional authority of one ofthe three branches,' but courts cannot avoid their responsibility merely 'because the issues have political implications."' ld. (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)).
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At oral argument, defendants suggested that their justiciability arguments were limited to the context of 8 U.S.C. § 1182(f), which is the statutory authority that the president invokes for the EO. Section 1182(f) provides that "[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests ofthe 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[.]" Defendants urge that this statutory grant of authority places the president at the zenith of his power, citing the framework first articulated by Justice Jackson in his concurrence in Youngstown Sheet & Tube Co. v. Sawver, 343 U.S. 579 (1952). Under Youngstown Sheet & Tube, "[w]hen the President acts pursuant to an express ... authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." 343 U.S. at 635.
Maximum power does not mean absolute power. Every presidential action must still comply with the limits set by Congress' delegation ofpower and the constraints ofthe Constitution, including the Bill of Rights.6 It is a bedrock principle of this nation's legal system that ''the Constitution ought to be the standard of construction for the laws, and that wherever there is evident opposition, the laws ought to give place to the Constitution." The Federalist No. 81, at 481 (Alexander Hamilton) (Clinton Rossiter ed., 1999). Defendants have cited no authority for the proposition that Congress can delegate to the president the power to violate the
6 Youngstown Sheet & Tube is better known as the Steel Seizure Case. In that case, President Truman ordered the Secretary of Commerce to seize control of most ofthe country's steel mills because he felt that an impending strike would jeopardize the military's ability to wage the Korean War. The Supreme Court struck the order, holding that although "[t]he power of Congress to ... authorize the taking ofprivate property for public use" was beyond question, the president did not have power to do so without Congress' approval, even in wartime. ld. at 588.
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Constitution and its amendments and the Supreme Court has made it clear that even in the context of immigration law, congressional and executive power "is subject to important constitutional limitations." Zadyydas v. Davis, 533 U.S. 678,695 (2001).
Indeed, the Supreme Court has refused to hold that the president is exempt from
compliance with the Due Process Clause even when he is exercising a pure Article II power,
such as the detention ofpersons deemed "enemy combatants." In Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004), for example, the Supreme Court was confronted with the constitutional claims of an "enemy combatant." The Court recognized the government's "critical ... interest in detaining those who actually pose an immediate threat to the national security ofthe United
States during ongoing international conflict," lib but still held that the president must comply
with the Fifth Amendment, id. at 524. Ifthe president's actions can be subject to judicial review when he is exercising his core Article II powers, as in Hamdi, it follows that his actions are also subject to such review when he exercises Article I powers delegated to him by Congress. As the Ninth Circuit has explained, "the Supreme Court has repeatedly and explicitly rejected the notion that the political branches ... are not subject to the Constitution when policymaking in [the immigration] context." Washington, 2017 WL 526497, at *5.
The defendants also continue to dispute the Commonwealth's Article III standing to challenge the EO. The Court has already held that the Commonwealth has pleaded facts
sufficient to establish standing under both a parens patriae theory and proprietary theory. See Mem. Op., [Dkt. 42] at 11. Because the pending motion is for a preliminary injunction, the Commonwealth may no longer rest on its pleadings but must "set forth by affidavit or other evidence specific facts, which for purposes ofthe [preliminary injunction] will be taken to be true." Caccbillo v. Insmed, Inc., 638 F.3d 401,404 (2d Cir. 2011) (internal quotation marks and
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citations omitted). As discussed above, the Commonwealth has submitted sufficient evidence in the form ofReveley's declaration to establish at this early point in the litigation standing under the standards articulated in this Court's memorandum opinion dated February 3, 2017. See Mem. Op., [Dkt. 42] at 11.
B. Preliminary Injunction
"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in his favor, and that an injunction is in the public interest." Winter v. Nat. Res. Def. CounciL Inc., 555 U.S. 7, 20 (2008). "While plaintiffs seeking preliminary injunctions must demonstrate that they are likely to succeed on the merits, they 'need not show a certainty of success." League of Women Voters ofN.C. v. North Carolina, 769 F.3d 224,247 (4th Cir. 2014) (internal quotation marks and citation omitted).
C. Likelihood of Success on the Merits
The First Amendment to the United States Constitution provides that "Congress shall
make no law respecting an establishment of religion." U.S. Const. amend. 1.7 "The clearest
command ofthe Establishment Clause is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228,244 (1982). The Supreme Court has articulated various tests for determining whether that command has been violated. The frrst such test is that the law "must have a secular ... purpose." Lemon v. Kurtzman, 403 U.S. 602,612 (1971).
7 Although the First Amendment only addresses Congress by its terms, it has long been held to apply to executive action as well. See, e.g., New York Times Co. v. United States, 403 U.S. 713, 714 (1971).
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"In the past, [this] test has not been fatal very often, presumably because government does not generally act unconstitutionally, with the predominant purpose of advancing" one religion over another. McCrearv County v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 863 (2005). The secular purpose requirement '"nevertheless serves an important function,"' id. at 859 (quoting Wallace v. Jaffree, 472 U.S. 38, 75 (1985) (O'Connor, J., concurring in the judgment)}, because "[b]y showing a purpose to favor religion, the government sends the ... message to ... nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members," id. at 860 (internal citations and quotation marks omitted). This message of exclusion from the political community is all the more conspicuous when the government acts with a specific purpose to disfavor a particular religion.
Defendants have argued that the Court may not go beyond the text ofthe EO in assessing its purpose, or look behind its proffered national security rationale,8 but the Supreme Court has rejected that position. Although courts "often ... accept governmental statements of purpose, in keeping with the respect owed in the first instance to such official claims, ... in those unusual cases where the claim was an apparent sham, or the secular purpose secondary, the unsurprising results have been findings of no adequate secular object." McCreary, 545 U.S. at 865. When determining what purpose motivates governmental action, "an understanding of official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a drafter's heart of hearts." McCreary, 545 U.S. at 862. In other words, what matters is what an "objective observer" would draw from the text ofthe policy, enlightened by historical context and "the
8 The District of Massachusetts apparently agreed in Louhghalam v. Trump, as it referred only to the text ofthe EO, but the court did not explain why it did not consider any other evidence. See_ F. Supp. 3d_, 2017 WL 479779, at *4-*5 (D. Mass 2017).
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specific sequence of events leading to" its adoption. ld. (internal citations and quotation marks omitted). This historical context can include statements by relevant policymakers. Id. at 870 (considering resolutions authorizing a Ten Commandments display by county boards); see also Washington, 2017 WL 526497 at *10 (sanctioning the consideration of"statements by decisionmakers").
Defendants argue that an elected official's statements before he took the oath of office are irrelevant, but that position also runs counter to McCreary. 545 U.S. at 866. Just as the Supreme Court has held that ''the world is not made brand new every morning[,]" M;6 a person is not made brand new simply by taking the oath of office. Limiting the temporal scope ofthe purpose inquiry "bucks common sense: reasonable observers have reasonable memories, and [Supreme Court] precedents sensibly forbid an observer 'to turn a blind eye to the context in which [the] policy arose.'" ld. (quoting Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290,315 (2000)). For example, in McCreary, the American Civil Liberties Union ("ACLU") sought to enjoin a display including the Ten Commandments in two counties' courthouses. Id. at 855. The Supreme Court examined the history of interactions between county executives, the ACLU, and the federal district court for a one-year period before the challenged display was erected, id. at 851-57, and determined from that history that ''the [c]ounties were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality," id. at 873. Further, in Santa Fe, the Court examined over a year's worth of events leading up to a school district's adoption ofthe challenged "Prayer at Football Games" policy to conclude that it "unquestionably ha[d] the purpose and create[d] the perception of encouraging the delivery ofprayer at a series of important school events." Santa Fe, 530 U.S. at 294-98, 317.
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This Court is similarly not free to "ignore perfectly probative evidence" from statements made by the president before he took office. See McCreary, 545 U.S. at 866.
Defendants have repeatedly cited Kleindienst v. Mandel, 408 U.S. 753 (1972), arguing that when facing constitutional scrutiny in an immigration context, the government must only supply a "facially legitimate and bona fide reason" for its action, but Mandel is inapplicable to this litigation. By its terms, Mandel does not apply to the persons who have already been granted visas because it involved an as-applied challenge to executive action by a person who had not been granted a visa ld. at 758--60. Here, by contrast, the allegations involve persons who have passed through extensive vetting requirements and been granted visas. Accordingly, the limitation Mandel imposes on constitutional review ofexecutive action does not apply to the class of persons relevant to this action. Moreover, even if Mandel did apply, it requires that the proffered executive reason be "bona fide." Id. at 770. As the Second and Ninth Circuits have persuasively held, ifthe proffered "facially legitimate" reason has been given in "bad faith," it is not "bona fide." Am. Academy of Religion v. Napolitano, 573 F.3d 115, 126 (2d Cir. 2009); Bustamente v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008). That leaves the Court in the same position as in an ordinary secular purpose case: determining whether the proffered reason for the EO is the real reason.
Defendants argue that permitting a court to "look behind" the president's national security judgments will result in a trial de DQYQ of the president's national security determinations. 9 No party has asked the Court to engage in such an exercise, nor would
9 Similar concerns were raised in one of the wartime detention cases, Boumediene v. Bush, 553 U.S. 723, 831 (2008) (Scalia, J., dissenting), but lower courts have proven capable of conducting the required due process analysis without supplanting the executive branch, see~ Bensayah v. Obama, 610 F.3d 718,723-27 (D.C. Cir. 2010).
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precedent permit it to do so. As in the Ninth Circuit, this court's "jurisprudence has long counseled deference to the political branches on matters of immigration and national security[.]"
* Washington, 2017 WL 526497, at 5. The Establishment Clause concerns discussed above do
not involve an assessment of the merits ofthe president's national security judgment. Instead, the question is whether the EO was animated by national security concerns at all, as opposed to the impermissible motive of, in the context of entry, disfavoring one religious group and, in the area of refugees, favoring another religious group.
The Commonwealth has produced unrebutted evidence supporting its position that it is likely to succeed on an Establishment Clause claim. The "Muslim ban" was a centerpiece of the president's campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered. See [Dkt. 61-12]. The president connected that policy to this EO when, asked last July if he had abandoned his plan for a Muslim ban, he responded "Call it whatever you want. We'll call it territories, OK?" [Dkt. 6122] at 10. Giuliani said two days after the EO was signed that Trump's desire for a Muslim ban was the impetus for this policy. [Dkt. 61-4] at 1. And on the same day that the president signed the EO, he lamented that under the old policy, "lfyou were a Muslim you could come in, but if you were a Christian, it was almost impossible," and said his administration was "going to help" make persecuted Christians a priority. [Dkt. 61-6] at 2. Defendants have not denied any ofthese statements or produced any evidence, beyond the text of the EO itself, to support their contention that the EO was primarily motivated by national security concerns.10
10 The Court gives little weight to the post hoc statements by Secretary Kelly and other administration officials that this is not a Muslim ban. See [Dkt. 61-17] at 3. Such rationalizations, coming after the litigation had already been challenged on First Amendment and other legal grounds, are typically afforded little weight in an intent inquiry. See Peacock v. Duval, 694 F.2d 644, 646 (9th Cir. 1982).
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The "specific sequence of events" leading to the adoption ofthe EO bolsters the Commonwealth's argument that the EO was not motivated by rational national security concerns. As the declaration from the national security experts states, ordinarily an executive order prioritizing national security is based "on cleared views from expert agencies with broad experience on the matters presented to [the president]." [Dkt. 57] at~ 7. But here there is no evidence that such a deliberative process took place. ld. To the contrary, there is evidence that the president's senior national security officials were taken by surprise. See [Dkt. 61-17]. Although Giuliani suggested that the EO was formulated by a "whole group ofvery expert lawyers" and at least two members of Congress, this process appears to have taken place during the campaign and there is no evidence that this commission was privy to any national security information when developing the policy. See [Dkt. 61-4]. Once again, defendants have offered no evidence to the contrary.
Defendants argue that the list of countries affected by the EO was singled out by Congress and the previous administration for special scrutiny and therefore cannot reflect religious prejudice. Giuliani advanced a similar argument in his interview after the EO was signed-that as long as the policy was given an outwardly legal form, it is constitutional. [Dkt.
61-4] at 1-2. Once again, McCreary is to the contrary:
One consequence oftaking 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. This presents no incongruity, however, because purpose matters. 545 U.S. at 866 n.14. Absent the direct evidence of animus presented by the Commonwealth, singling out these countries for additional scrutiny might not raise Establishment Clause concerns; however, with that direct evidence, a different picture emerges. In Giuliani's own account, the origin ofthis EO was a statement by the president that he wanted a legal way to
18

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impose a ban on Muslims entering the United States. [Dkt. 61-4] at 1. The president himself acknowledged the conceptual link between a Muslim ban and the EO when, asked ifhe had changed his position, he said "Call it whatever you want. We'll call it territories, OK?" [Dkt. 6122] at 10. That the same list might have been created by constitutionally legitimate concerns does not alter the legal analysis under McCreary.
The argument has also been made that the Court cannot infer an anti-Muslim animus because the EO does not affect all, or even most, Muslims. The major premise ofthat argument-that one can only demonstrate animus toward a group of people by targeting all of them at once-is flawed. For example, it is highly unlikely that the Supreme Court considered the displays ofthe Ten Commandments erected by the Kentucky counties in McCreary, which had a localized impact, to be targeted at all persons outside the Judeo-Christian traditions. See 545 U.S. at 851. Moreover, the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefficient the execution. See id. at 860.
Finally, defendants argue that the evidence on which the Commonwealth relies proves too much, because it would render every policy that the president makes related to Muslimmajority countries open to challenge. This fear is exaggerated. The Court's conclusion rests on the highly particular "sequence of events" leading to this specific EO and the dearth of evidence indicating a national security purpose. See McCreary, 545 U.S. at 862. The evidence in this record focuses on the president's statements about a "Muslim ban" and the link Giuliani established between those statements and the EO. Based on that evidence, at this preliminary
19

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of the litigation, the Court finds that the Commonwealth has established a likelihood of success on the merits. 11
D. Irreparable Harm As a matter of law, the threat of an Establishment Clause violation in and of itself constitutes irreparable harm. Newsom v. Albemarle Cntv. Sch. Bd., 354 F.3d 249,261 (4th Cir. 2003) (citing Elrod v. Burns, 427 U.S. 347,373 (1976)). But it is not the only irreparable harm that the Commonwealth is experiencing. As discussed above, the travel ban applies to hundreds of students at the Commonwealth's universities, and is already preventing the exchange of faculty on which such universities thrive, by significantly straining freedom of movement. Moreover, Virginia's schools have begun to lose students, and have credibly stated that they expect to continue losing students and medical residents in the coming months if the travel ban is not lifted. Students are not fungible, thus these losses cannot be compensated by money damages, even if money damages were available in this civil action, which they are not. In light ofthe likelihood of an Establishment Clause violation and the restraint on liberty imposed by the travel ban, the Commonwealth has established irreparable harm.
E. Balance of the Equities As the Fourth Circuit has held, "a state is in no way harmed by the issuance of a preliminary injunction which prevents the state from enforcing restrictions likely to be found unconstitutional[.]" Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002) (internal quotation marks and citation omitted). Moreover, in contrast to the evidence of irreparable harm to the Commonwealth from the EO, the defendants have failed to present any
11 Because the Commonwealth has established a likelihood of success on its Establishment Clause claim, the Court does not need to address its equal protection, due process, or statutory claims at this stage.
20

Case 1:17-cv-00116-LMB-TCB Document 111 Filed 02/13/17 Page 21 of 22 PageID# 1283
evidence of hann they or the nation will suffer if enforcement of§ 3(c) of the EO is preliminarily enjoined beyond bare assertions that the EO is necessary for national security. Although there is no interest more weighty than a bona fide national security concern, the defendants have presented no evidence to support their contention that the EO is necessary to national security. And as the Ninth Circuit observed, there is no evidence that the procedures in place before the EO was signed were inadequate, as the government has not pointed to any attacks perpetrated by nationals of the affected countries since September 11, 2001. Washington, 2017 WL 526497 at *10. Ironically, the only evidence in this record concerning national security indicates that the EO may actually make the country less safe. As the former national security officials have stated: "[The EO] ultimately undermines the national security of the United States, rather than mak[ing] us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds." [Dkt. 57] at ~ 3. The Commonwealth therefore prevails on the balance of the equities.
F. Public Interest The Fourth Circuit has held that ''upholding constitutional rights surely serves the public interest." Giovani Carandol~ 303 F.3d at 521 (internal quotation marks and citation omitted). The Court therefore finds that enjoining an action that is likely a violation of the Establishment Clause serves the public interest, particularly in the absence of evidence to support the government's asserted national security interest as discussed above.
G. Scope of Relief The Commonwealth originally sought an order enjoining enforcement of§ 3(c) ofthe EO at any port of entry against Virginia residents who lawfully held either LPR status, a valid student visa, or a valid work visa at the time that the EO was signed. At oral argument, it
21

Case 1:17-cv-00116-LMB-TCB Document 111 Filed 02/13/17 Page 22 of 22 PageID# 1284

amended its request to include a request for a nationwide injunction applying to all persons, not

just Virginia residents. Although "[n]ationwide injunctions are appropriate if necessary to afford

relief to the prevailing party," Va. Soc'y for Human Life v. Fed. Election Comm'n, 263 F.3d

379, 393 (2001), injunctive relief must be no broader than necessary to avoid encroaching "on

the ability of other circuits to consider the" questions raised. ld. The relief originally requested

by the Commonwealth is appropriately tailored to the basis for the Commonwealth's standing

and its claims relating to its residents, colleges, and universities. Moreover, the nationwide

temporary restraining order entered in the District of Washington provides the broader protection

sought by the Commonwealth. To avoid any claim that the preliminary injunction to be entered

in this litigation is defective because of overbreadth, this Court declines the Commonwealth's

invitation to impose broader relief.

III. CONCLUSION

For the reasons discussed in this Memorandum Opinion, the Court holds that the

unrefuted evidence presented by the Commonwealth establishes that there is a likelihood the

Commonwealth will prevail on the merits of its Establishment Clause claim; that it will suffer

irreparable injury ifthe enforcement of§ 3(c) of the EO is not enjoined as it relates to Virginia

residents, Virginia institutions, and persons connected to those persons and institutions; that the

defendants will not suffer any harm from imposing the injunction; and that enjoining

unconstitutional action by the Executive Branch is always in the public's interest. Accordingly,

the Court will enter a separate order granting a modified version ofthe injunction sought by the

Commonwealth.
~
_n_ Entered this day of February, 2017.

Alexandria, Virginia

Leonie ~1. Brinkema United States District Judge . 22

 
 Case 1:17-cv-00116-LMB-TCB Document 112 Filed 02/13/17 Page 1 of 2 PageID# 1285

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, ^

Petitioners,
V.

l:17-cv-116(LMB/TCB)

DONALD TRUMP, President ofthe United States, §t al..

Defendants.

PRELIMINARY INJUNCTION

For the reasons stated in the accompanying Memorandum Opinion,the Court finds that the Conmionwealth of Virginia hasstanding to maintain this civil action andhasestablished that it is likely to prevail onthemerits, thatit is likely to suffer ureparable harm intheabsence ofinjunctive

relief, and that the balance ofthe equities and the public interest favor an injunction. Accordingly, the Commonwealth's Motion for a Preliminary Injunction [Dkt. 23] is GRANTED

and it is hereby
ORDERED that respondents, and all officers, agents, andemployees of the Executive Branch of the United States government, and anyone acting under their authorization or direction

be and are ENJOINED from enforcing § 3(c) ofExecutive Order 13,769 against any person who hasa Virginia residence or is employed byorattends aneducational institution administered bythe Commonwealth of Virginia, and who, as of 5:00 p.m. Eastern Standard Time on Friday, January 27,2017, waslawfully admitted for permanent residency in the United States, heldan immigrant

visa that would entitle the bearer to be lawfully admitted for permanent residencyupon admission to the United States, held a valid student visa (or accompanying family or spousal visa), or held a valid work visa (or accompanying family or spousal visa); and it is further

Case 1:17-cv-00116-LMB-TCB Document 112 Filed 02/13/17 Page 2 of 2 PageID# 1286

 
 Case 1:17-cv-00116-LMB-TCB Document 94 Filed 02/09/17 Page 1 of 9 PageID# 1062

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)

Petitioners,

)

)

THE COMMONWEALTH OF VIRGINIA, )

)

Intervenor-Petitioner,

)

)

v.

)

)

DONALD TRUMP, President of the United )

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

THE COMMONWEALTH OF VIRGINIA’S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

Mark R. Herring Attorney General of Virginia
Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us
Matthew R. McGuire (VSB No. 84194) Assistant Attorney General mmcguire@oag.state.va.us

Stuart A. Raphael (VSB No. 30380) Solicitor General
Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us
Counsel for Commonwealth of Virginia

February 9, 2017

Case 1:17-cv-00116-LMB-TCB Document 94 Filed 02/09/17 Page 2 of 9 PageID# 1063
The Commonwealth of Virginia respectfully submits the following proposed findings of fact and conclusions of law in connection with its motion for a preliminary injunction.
PROPOSED FINDINGS OF FACT 1. Section 3(c) of the Executive Order issued on January 27, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” bans for 90 days lawful permanent residents and individuals who have been issued a visa (other than 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 Iran, Iraq, Syria, Sudan, Libya, Yemen, and Somalia from entering or, if they temporarily depart, from reentering the United States. ECF No. 7-1. 2. Section 3(c) of the Executive Order is inflicting irreparable harm on Virginia’s public colleges and universities by preventing students, faculty, and employees who reside in Virginia, pursuant to lawful-permanent-residence (“LPR”) or approved visa status, from traveling to or from the United States. See Reveley Decl. ¶¶ 5-8, 11-13 (ECF No. 32). At least 350 students and dozens of faculty and employees come from the seven majority-Muslim countries at issue; the Order (if not enjoined) prevents them from leaving the United States on penalty of not being readmitted. Id. ¶ 5. At least five visiting scholars have had to cancel plans to travel to the United States. Id. ¶ 9. Virginia’s colleges and universities are also suffering irreparable financial and reputational harm as a result of the Order’s effect on students’ ability and willingness to attend. Even at this early date, two Sudanese applicants and several Iranian engineering students have withdrawn their applications because of the Order. Id. ¶ 11. The irreparable harm and disruption includes two students attempting to return to the United States who were blocked from entry, id.¶ 6, one of whom was later able to enter the United States only because of the temporary restraining order issued in Washington v. Trump, No. 17-CV-00141-
1

Case 1:17-cv-00116-LMB-TCB Document 94 Filed 02/09/17 Page 3 of 9 PageID# 1064
JLR (W.D. Wash.), appeal pending No. 17-35105 (9th Cir.) (oral argument held on Feb. 7, 2017). (ECF No. 54 ¶ 11.) A recent analysis estimates that the lost revenue to Virginia’s colleges and universities to be $20.9 million if students from the seven countries withdraw from enrollment.1 That financial harm is irreparable because the United States does not concede it will be liable to Virginia for those losses. In addition, the reputational harm to Virginia’s colleges and universities is incalculable and therefore irreparable. The Order also inflicts irreparable economic harm on Virginia by disrupting the ability of LPRs and visa holders to continue to work for Virginia employers, thereby reducing tax revenue received by the Commonwealth from such individuals. See IRS Publication 519, at 3-4 (2016) (defining as “U.S. residents” for tax purposes LPRs and others who have been “substantially present” in the United States); Va. Dep’t of Taxation, Residency Status http://www.tax.virginia.gov/content/residency-status.
3. Lawful permanent residents and visa holders undergo lengthy, extensive vetting processes and often have developed significant reliance interests based on the approval of their immigration status by the United States government. See, e.g., Aziz Decl. ¶¶ 5-9, 11-16 (ECF No. 55); Elyazgi Decl. ¶¶ 1, 4-6, 7-9, 12-14, 16 (ECF No. 54); Hodge Decl. ¶¶ 5-13, 19 (ECF No. 56).
4. After the Commonwealth filed its motion to intervene in this case on January 31, 2017, White House Counsel Donald McGahn issued guidance on February 1 stating “that Sections 3(c) and 3(e) do not apply” to LPRs. The President, however, has not revised the Executive Order in response to that guidance, and the guidance conflicts with the position of
1 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-affectsthousands-of-international-students.
2

Case 1:17-cv-00116-LMB-TCB Document 94 Filed 02/09/17 Page 4 of 9 PageID# 1065
Respondent Kelly that § 3 applies to LPRs, but that LPR “status will be a dispositive factor in our case-by-case determinations.” ECF No. 34-1.
5. Section 3 of the Executive Order provides no process through which LPRs and visa holders who reside in Virginia can contest the restriction the Order imposes on their ability to travel or the burdens it imposes on them when they leave and reenter the United States. See ECF No. 7-1.
6. While a candidate, President Trump made numerous statements that reflect antiMuslim animus. See generally Siddiqui Decl., ECF No. 61 to 61-22. Respondents do not contest the accuracy of any of the statements attributed to Mr. Trump and his advisors.
7. In December 2015, then-candidate Trump, in a press statement, called “for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” Siddiqui Decl. ¶ 4, Ex. 2, ¶ 16, Ex. 12.
8. Immediately after issuing the December 2015 press release, then-candidate Trump stated in an interview that under his plan individuals would be stopped at the border, asked if they were Muslim, and if they answered yes, they would not be allowed in the United States. Siddiqui Decl. ¶ 5, Ex. 3.
9. In January 2017, President Trump’s political advisor Rudy Giuliani, who was significantly involved in crafting the Executive Order, publicly commented that the impetus for the Order was to legally implement the “Muslim ban” proposed by then-candidate Trump. Siddiqui Decl. ¶ 6, Ex. 4.
10. Secretary John Kelly of the Department of Homeland Security corroborated Mr. Giuliani’s comments by stating at a January 31, 2017 news conference addressing the implementation of the Executive Order that, “[t]his whole approach was part of what then-
3

Case 1:17-cv-00116-LMB-TCB Document 94 Filed 02/09/17 Page 5 of 9 PageID# 1066
candidate Trump talked about for a year or two.” Siddiqui Decl. ¶ 14.a. 11. President Trump has asserted that he is a man of his word, and that he will do
what he says. Siddiqui Decl. ¶ 9, Ex. 7. The numerous statements by President Trump and his advisors demonstrate that Section 3(c) of the Executive Order effectuates the Muslim ban that then-candidate Trump promised in the presidential campaign.
PROPOSED CONCLUSIONS OF LAW 1. The February 1, 2017 guidance memorandum does not moot Virginia’s claims with regard to LPRs because Respondents’ “voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,” and it remains uncertain whether Respondents will revert to the challenged practice in the future. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000); Wall v. Wade, 741 F.3d 492, 497 (4th Cir. 2014) (“[W]hen a defendant retains the authority and capacity to repeat an alleged harm, a plaintiff’s claims should not be dismissed as moot.”). 2. Virginia has both parens patriae standing and proprietary standing for the reasons previously set forth in the Court’s Memorandum Opinion of February 3, 2017. ECF No. 42. 3. Lawful permanent residents and individuals who have been issued a visa and who reside in Virginia have a constitutionally-protected interest in their immigration status that is protected by the Due Process Clause of the Fifth Amendment. See Landon v. Plasencia, 459 U.S. 21, 32-34 (1982) (“[T]he United States has conceded that [a lawful permanent resident] has a right to due process . . . .”); Mathews v. Diaz, 426 U.S. 67, 77 (1976); Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 576 (1972) (property interests “may take many forms” and attaches as “a safeguard of the security interests that a person has already acquired in specific benefits”); Ibrahim v. Dep’t of Homeland Sec., 62 F. Supp. 3d 909, 920 (N.D. Cal. 2014). 4. Lawful permanent residents and individuals who have been issued a visa who
4

Case 1:17-cv-00116-LMB-TCB Document 94 Filed 02/09/17 Page 6 of 9 PageID# 1067
reside in Virginia have liberty interests, such as the right to travel, that are protected by the Due Process Clause of the Fifth Amendment. Mathews v. Eldridge, 424 U.S. 319, 335 (1976); Kent v. Dulles, 357 U.S. 116 (1957); Ibrahim, 62 F. Supp. 3d at 927-28.
5. Section 3(c) of the Executive Order violates the Due Process Clause of the Fifth Amendment by arbitrarily depriving lawful permanent residents and visa holders residing in Virginia of their property and liberty interests without affording them any process, simply because they come from one of seven majority-Muslim countries. See Landon, 459 U.S. at 34; Fuentes v. Shevin, 407 U.S. 67, 82 (1972).
6. The Establishment Clause of the First Amendment “mandates governmental neutrality between religion and religion” and where a “law grant[s] a denominational preference,” the law is suspect and strict scrutiny applies. Larson v. Valente, 456 U.S. 228, 244, 246 (1982); see also Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 728 (1994) (Kennedy, J., concurring) (“[T]he Establishment Clause forbids the government to use religion as a line drawing criterion.”). Section 3(c) violates the Establishment Clause because it is motivated by animus towards Muslims.
7. The Equal Protection component of the Fifth Amendment protects citizens as well as noncitizens from being treated differently solely on account of their religion, nationality or alienage. See, e.g., Harris v. McRae, 448 U.S. 297, 297 (1980); Graham v. Richardson, 403 U.S. 365, 372 (1971). Section 3(c) violates the Equal Protection aspects of the Due Process Clause because it is motivated by animus towards Muslims. See United States v. Windsor, 133 S. Ct. 2675, 2693 (2013); Romer v. Evans, 517 U.S. 620, 632 (1996). The Executive Order is unconstitutional under the Equal Protection component of the Fifth Amendment regardless of whether strict scrutiny applies to Section 3(c)’s blanket ban on individuals from the seven
5

Case 1:17-cv-00116-LMB-TCB Document 94 Filed 02/09/17 Page 7 of 9 PageID# 1068
majority-Muslim countries, because the Order was motivated by animus. See Graham, 403 U.S. at 372; see also Windsor, 133 S. Ct. at 2693 (“The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”).
8. Virginia, its public colleges and universities, and its residents are suffering immediate, irreparable harm due to the ongoing religious discrimination sanctioned by Section 3(c) of the Executive Order. The damage to the reputation of, and the disruption to, Virginia’s colleges and university is irreparable because it is incalculable. And forgone taxes and tuition, even assuming those figures were calculable, are irreparable “due to the government’s immunity to a subsequent damages award.” Computerware, Inc. v. Knotts, 626 F. Supp. 956, 961 (E.D.N.C. 1986).
9. The Executive Branch will not be harmed by the preliminary injunction because it operates solely to “prevent[] the [Government] from enforcing restrictions likely to be found unconstitutional.” Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 191 (4th Cir. 2013) (citation omitted). In addition, the Government has made no showing of such harm.
10. The public interest greatly favors granting the injunction because “upholding constitutional rights surely serves the public interest.” Id. The “‘loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury’” to the public. See Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
11. A nationwide injunction against the enforcement of § 3(c) is appropriate in order to afford complete relief to Virginia. Richmond Tenants Org. v. Kemp, 956 F.2d 1300, 1308-09 (4th Cir. 1992). Noncitizens traveling to Virginia from a foreign country do not arrive only
6

Case 1:17-cv-00116-LMB-TCB Document 94 Filed 02/09/17 Page 8 of 9 PageID# 1069

through the port of entry at Virginia’s Dulles International Airport. Thus, the injunction must cover all ports of entry. Moreover, a nationwide injunction is warranted because of the constitutional requirement of uniformity in enforcing the nation’s immigration law. Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015), aff’d by equally divided Court, 136 S. Ct. 2271 (2016); Texas v. United States, 787 F.3d 733, 768-69 (5th Cir. 2015). A Virginia-only injunction would also be difficult for Respondents to administer, and create a risk of error in enforcement, by requiring Respondents at ports of entry throughout the United States to single out persons traveling from or to Virginia. Accordingly, the Court finds in the exercise of its discretion that the nationwide injunction against § 3(c) is warranted.
Respectfully submitted, COMMONWEALTH OF VIRGINIA,

By:

/s/

Stuart A. Raphael (VSB No. 30380)

Solicitor General

Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7240 – Telephone (804) 371-0200 – Facsimile sraphael@oag.state.va.us

Mark R. Herring Attorney General of Virginia

Trevor S. Cox (VSB No. 78396) Deputy Solicitor General tcox@oag.state.va.us

Matthew R. McGuire (VSB No. 84194) Assistant Attorney General mmcguire@oag.state.va.us

Counsel for Commonwealth of Virginia

7

Case 1:17-cv-00116-LMB-TCB Document 94 Filed 02/09/17 Page 9 of 9 PageID# 1070 CERTIFICATE OF SERVICE
I hereby certify that on February 9, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael
8

 
 Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 1 of 36 PageID# 1287

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

TAREQ AQEL MOHAMMED AZIZ And
AMMAR AQEL MOHAMMED AZIZ, by their next friend,
AQEL MUHAMMAD AZIZ, And
JOHN DOES 1-60, on behalf ofthemselves and others similarly situated,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY ("DHS"); U.S. CUSTOMS AND BORDER PROTECTION ("CBP"); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; WAYNE BIONDI, Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles, and EIGHT UNNAMED CBP AGENTS AT DULLES AIRPORT,
Respondents,
PEOPLE OF THE UNITED STATES OF AMERICAIN SUPPORT OF RESPONDENTS, By Vincent A. Molino (Pro-Se)
Intervenor-Respondent.

Case No.1:17-CV-00116-LMB-TCB Date: Feb 22, 201
Honorable Judge Leonie Brinkema United States District Judge

MOTION TO INTERVENE PURSUANT TO F.R.C.P. 24
ON THE ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 2 of 36 PageID# 1288
Comes Now, VINCENT A. MOLINO (hereinafter as "Pro-Se Intervenor") respectfully moves to intervene in support of the President's authority to invoke Executive order 13769 (hereinafter as "E.O. ")named "PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES" on Jan 27 of this year 2017 that has been vested in him 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.
This Motion to the above-entitled action is pursuant to Federal Rules of Civil Procedure 24(a) and (b). The motion to intervene is supported by the pleadings and papers on file herein, the memorandum ofpoints and authorities below, and any oral argument this Court sees fit to allow.
(a) The motion to intervene is timely; no party will suffer prejudice ifPro-Se Intervenor is added as intervenor; and intervention will not unduly delay adjudication of the original parties' rights;
(b) Pro-Se Intervenor has an interest in the subject of the action 2 (c) Pro-Se Intervenor is so situated that disposition of the present action could infringe on his rights as argued 2 (d) Pro-Se Intervenor interests are not already adequately represented by the current parties. 3
2 Motion Interv. pp. 5-10,18, 26-27,29-30, 54-69 infra. Exhibit G 3 Motion Interv. pp. 5, 33 infra.
2

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 3 of 36 PageID# 1289
INDEX OF ALL ITEMS
]E»~~~~:k: ~~~~~~~~•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••~
MOVAN~ JE»~RMITTED ~0 I~T~RVENE A~ OF RIGHT•••••••.•••..•••••••..•••5
I. Next ofFriend of over 50% of the U.~.............................................5
ll. Classification of Class Action•.•••••••••••••.•••••••••••••••••••.•.•••••.•.••••••••••.•••6 ][(][. JE»a~ Class CelltiDfication•••••••••.••••••••••••••••••••••••••••••••••••••.•..••••••••••••.•••6
A. Vocal Minority of Protesters.•.•.•••••.•••••••.•.•••.•.•••.••.•.•.•.•.•......•••.••.••.•••.•......6 1. Politically Biased Mainstream Media ...........................................................6 2. Politically Biased Universities ......................................................................7 3. Age I Residence Demographic......................................................................8
B. Silent Majority-Class Action definition towards Right to Intervene..•8
JE»~~ ~A~ ~ ~G~~T•••.•.•.••.••••..•..•••••••••••••••••••••••••••.••••••••••••.•••~ I. Rights Granted at the Infringement of Others••••••••••••••.•••.••••••.•••••~ II. Rights ofU.~. Citizens superseding that of Foreign ~ationals•••lO
~UJE»JE»ORTI~G ~A~ AND ~GU~~T•••••••••••••.•••.••••••••••••••••••••••••••••••••••••ll I. Rights Granted at the Infringement of Others - ~xpanded••••••••ll
A. Failed Policies in the past to protect The United States (Terrorists)••ll 1. 9111 Attacks on Washington DC and NYC................................................11 2. 1993 World Trade Center bombing.............................................................12 3. Bowling Green, Kentucky Incident 2011....................................................13 4. Pearl Harbor spy Takeo Yoshikawa ........................................................... 13
B. Failed Policies in the past to protect The United States (Others)•••.•.••14 1. Fidel Castro emptingjails and mental health facilities 1980......................14 2. Present day Economic Espionage from Cuba.............................................14 3. Nazi war criminals escape to South America............................................ IS
C. Successful Policies against other forms of stateside harm.•••.•••.•••••••.•••16 1. Reagan I Clinton policy on HIV restrictions .............................................. 16
ll. Maliciously Motived ~awsuits against ~.0.•.••.•••.•••.••••••.••••••••••••••16
A. PoliticaUy Motivated ACLU Led Lawsuit...•.•......•...•.••••••.•..•••••••.•.•.•.•..•.16
3

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 4 of 36 PageID# 1290
1. Other presidents E.O.s ofFederal Immigration and Nationality Act........17 2. Ratings/Backing of Candidates by ACLU..................................................17 3. ACLU National POLITICAL Director Faiz Shakir...................................18 4. New Orleans ACLU Refusal to help Pro-Se Intervenor ...........................18
B. Financially motived lawsuit.••••...•.••••••••••••••.••••••.•.••.•...•.•.•.•.•..•••••...•...•....•.19
1. Political contributions.................................................................................19
C. N.Y.A.G. Motion- Intervene- support ofiDegal Foreign Nationals..•20
1. 17-CV-00480 E.D.N.Y First Misrepresentation offacts.....................20 2. 17-CV-00480 E.D.N.Y Second Misrepresentation offacts.................21 3. "Rev." AI Sharpton - treasonous support of Somalian terrorists........21 4. N.Y. A.G. Schneiderman- treasonous support of AI Sharpton........22
III. Petition for Habeas Corpus Writ...••.....•..........••...•••........•••••.•••..22
A. Inapplicable and baseless•••••••••••.•••..•••••••.........•....••••••••••....•.....••••••.••22 B. International Variant••••••••••••••••••••••..•••..••..........•••••••.••••••...••••••••.•••••••23 C. Proper definition of detainment••••••••••••••.••••••..•..••••••••••••.•••....•..••.••••23
1. U.S v. Amistad, (1841) ......................................................................23 2. Boumediene v. Bush (2008)................................................................23 3. U.S. hikers detained in Iran (2011) .................................................24
IV. Reason for North Korea Exclusion...•••.•••.•...•••••••...••••.•.••.........•.•24
A. Amount of Refugees••••••.•.•••.••••.•••.•.•••••.•••.........•....•.••••••••..•..•..•.•••••.•.•••••..•24 B. Syria's refuges estimated at Approx. 6,500,000•.••.•.•••.•...•.•..••.•.•...•.•......24
V. Percentages of Muslims Affected Worldwide••..•••••.•...••.•••••......••.25
A. Percentage of Muslim population worldwide.....••.•...•.•.••.....•••••.•..••••....25 B. Countries with high percentages of total Muslim population...•.•••...•.••25
Cc:»NC~llJ~I«=)N•••...•..............••..••.•...•.•...•••..•....••....•.•...•.•.•....••......•.••••.•.•.•.•....••••.2Ci
](»~~R. •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 2~
AFFIDAVIT VERIFYING AL~EGATION~ I CORRECTNE~~.••.•.....•..••33 ~Jl»E~~ .•.•.•..............•...•...•.•••..•.•..........•.......•.••••..............••••.••.•••.......•.••••••....3~
A. Exhibit - Age I Residence Protester Demographic.....................37 B. Exhibit - 2011 FBI Footage - Bowling Green, KY................37 C. Exhibit - 26 Other Countries Muslim Populations > 90% ......39 D. Exhibit - Petitions in E.D. ofN.Y................................................41 E. Exhibit - A.G. Schneiderman I "Rev." AI Sharpton ................43 F. Exhibit -Griffin vs. Trump, Congress, Europe- E.D ofW.A...47 G. Exhibit -Louisiana's First Circuit No. 2016-KW1198..............54
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MOVANT MOTION TO INTERVENE AS OF RIGHT

I.

I

am

a

"next

of

friend"

4 '

5 ofover

50%

of the

voters

of the

United

States

of America

of

350 million citizens that cannot file a similar motion. 6 I consider myself the impartial "lh
branch" of government 7 overseeing the 3 common branches with the power vested in me to

become a major deciding factor in replacing immoral and deceptive politicians from office (or

the chance at office) with more righteous underdog and under financed candidates as I have in

successfully done first in the 2015 St. Tammany Sheriffs race and then in the 2016 Louisiana 3rd district congressman's race. 8 Greater than 50% figure was determined by the 46.2% of the

popular vote secured by President Trump in the 2016 election in addition to the estimated

relatively small percentage that did not vote for him but trust in the executive's branches ability

to effectively act as head of state and Commander-in-Chief of our armed forces. The remaining discussion in this ~'MOVANT MOTION TO INTERVENE AS OF RIGHT" section only serves at

placing the 46.2% figure to 50.1% or greater.

4 "Forty-eight states and the District ofColumbia are backing the family offallen Marine Matthew Snyder in a
pending U.S. Supreme Court case that could decide the constitutionality oflaws restricting protests at private family funerals. A church group has outraged families by disrupting over 600 military funerals. Lance Cpl. Snyder, who was deployed to Iraq in 2006, was killed just a month later in an accident. His funeral in Maryland was disrupted by demonstrators led by Kansas pastor Fred W. Phelps, yelling, among other things, that America's military is evil..... Now, all but two state attorneys general have signed a "friend ofthe court'' brief, to be filed tomorrow, that argues the First Amendment should not apply to some "intrusive and harassing"forms ofexpression. - 'States Line Up Against Funeral Hecklers in Supreme Court Brief'- ABC News- May 31,2010- By Devin Dwyer- Washington, D.C.
5 ~A nextfriend is a person who represents someone who is unable to tend to his or her own interests.'- Federal
Rules of Civil Procedures, Rule 17,28 USCA "Next Friend" 6'Litigants can be assisted by unlicensed laymen during judicial proceedings. '-Brotherhood ofTrainmen v.
Virginia ex rei. Virginia State Bar, 377 U.S. 1; v. Wainwright, 372 U.S. 335; Argersinger v. Hamlin, Sheriff 407 U.S. 425 7'People are supreme, not the state'- Waring vs. the Mayor of Savannah, 60 Georgia at 93 8 Pro-Se Intervenors site exposing political corruption and campaign videos- www.Bye-Bye-Boo-Boo.com. Pro-Se
Intervenors 3rd and 4th successful attempts (by replacement, impeachment, or indictment) will be that of Attorney Generals and Judges I Cohens v. Virginia, 19 US (6 Wheat) 264,404,5 L.Ed 257 (1821): "When a judge acts where he or she does not have jurisdiction to act, the judge is engaged in an act or acts oftreason."
5

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 6 of 36 PageID# 1292
II. Classification of Class Action....... This petitioner's writ cannot be argued in court
without the substantial party in which im representing. We consider this argument on the legality ofE.O. a form of Federal class action civil suit in which the immediate damages are fear of wrongful death of selfand family and potential future damages ofattempted or successful wrongful death of self and family from additional terrorist attacks. Since the "Amount in controversy" are American lives (both combatant and non), it satisfies the " $5,000,000" prerequisite pursuant to U.S. Class Action Fairness Act of2005. 9 The damages and potential future damages can be defmed as non-monetary relief.
III. Party Class Certification
A. Vocal Minority of Protesters on E.O. -Protests across the country has put this argument on
legality in the national spot light. The question is whether or not the main strain media is accurately depicting the country's level ofdiscord on this matter, which should help sway decisions this complex in Federal Court. Important considerations to factor in are the general demographic ofthe protesters and media.
1. Politically Biased Mainstream Media -The New York Times declaring 'Hillary
Clinton has an 85% chance to win' hours before the polls close 10
'We'll say '1ake news" until media realizes attitude of attacking the President is wrong' -'WH officials 11
9 Relaxed the requirement that all plaintiffs be diverse from all defendants to allow jurisdiction where at least one plaintiff is diverse from at least one defendant (28 U.S.C. § 1332(d) (2); Increased the amount in controversy requirement from $75,000 to $5 million, but relaxed the threshold standard by requiring the $5 million to represent the aggregate sum of each individual plaintiffs claims (28 U.S.C. § 1332(d)(2), (6)).
10 www.nytimes.com/interactive/2016/upshot/presidential-polls-forecast.html 11 www.cnn.com/2017/02/07/politics/kfile-gorka-on-fake-news/index.html
6

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 7 of 36 PageID# 1293
2. Politically Bias at Universities- Liberal professors out number conservatives'
nearly 12 to 1, study fmds. 12
'~ Rutgers University professor who was given a psychological exam after posting statements about gun control and flag burning on his Twitter account has been placed on administrative leave and is no longer teaching, campus officials said Friday..... New York police said in a statement that Rutgers police told them Allred had threatened to kill white people....[professors name omitted] lecturer on Rutgers' New Brunswick campus, made international headlines Wednesday after police came to his Brooklyn home and took him to Bellevue Hospital for a psychological exam." 13
"William Ayers a professor of education at the University of Illinois at Chicago, College of Education......Ayers participated in the bombings of New York City Police Department headquarters in 1970, the United States Capitol building in 1971, and the Pentagon in 1972, as he noted in his 2001 book, Fugitive Days. Ayers writes: "Although the bomb that rocked the Pentagon was itsy-bitsy-weighing close to two pounds-it caused 'tens of thousands of dollars' of damage. The operation cost under $500, and no one was killed or even hurt''). Although never convicted of any crime, he told the New York Times in September 2001, "I don't regret setting bombs.../feel we didn't do enough." 14
12 www. washingtontimes.cornlnews/20 16/oct/6/liberal-professors-outnumber-conservatives-12-1 13 www.nj.com/education/2016/11/rutgers_prof_after_anti_trump_tweets.html 14 www.en.wiki"ped.ta.orglwiki!B.1"II_ Ayers
7

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 8 of 36 PageID# 1294
3. Age I Residence Demographic- The following graph shows confirms that
protesters have greater chance ofbeing vocal based on their political party and vote in 2016 instead ofthe issue they are claiming to protest. 15
B. Silent Majority on E.O. -Application from Class Action Party definition towards
Right to lntenrene - Under Rule 23(e) 'the district court acts as afiduciary who must serve as a guardian ofthe rights ofabsent class members... (citations omitted).. court cannot accept a settlement that the proponents have not shown to be fair, reasonable, and adequate.' 16 'Moreover, it is well established that a settlement can be fair notwithstanding a large number of objectors.' 17 'We also reject appellants' assertion that the district court had no obligation to protect the interests ofthe "silent majoritv." The fact that many class members remained silent is oflittle import. The district court had afiduciary responsibility to the silent class members, despite vociferous opposition to the settlement, and their interests properly were protected by the court. 18
15 Motion Interv. pp. 37-38 infra Exhibit A 16 Grunin v. International House ofPancakes, 513 F.2d 114, 123 (8th Cir. 1975) 17 TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456 (2d Cir. 1982) of a class action settlement. - See Laguna, et al. v. Coverall North America Inc., et al., No. 12-55479 (9th Cir. 2014). 18 Motion- Grant V. Bethlehem Steel Corp- 823 F.2d 20 (2d Cir. 1987)
8

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 9 of 36 PageID# 1295
PRIMARY LAW AND ARGUMENT
I. Rights Granted at the Infringement of Others. The suspension ofPresident
Trump's Executive Order 13769 infringes upon the rights of US citizens' "Freedom from Fear'' as listed as a fundamental human right according to The Universal Declaration of Human Rights 19 and President Franklin D. Roosevelts State ofthe Union on January 6, 1941.20 Even if the Rights of US citizens protected by the US Constitution did not supersede international law within borders in respect to the rights of Citizens that have , in the past, sworn allegiance to countries declared to be enemies by previous Presidents, - the basic fundamental limit of freedom can be loosely defined as A Law abiding US citizen's freedom exists until in/tinges upon the freedom of vour fellow US citizen. This principle was drafted by Colonial Anti-federalists in the original Bill of Rights ratified in 1791 and can be later proven by both citations:
A. '7he liberty ofthe citizen to do as he likes so long as he does not interfere with the liberty
of others to do the same" -199 U.S. 45 Mr. Justice Oliver Wendell Holmes Jr. Lochner v. New York, 198 US 45 (1905)
B. "Your right to swing your arms ends just where the other man's nose begins."- Freedom
of Speech in Wartime, 32 Harvard Law Review 932, 957 (1919) Zechariah Chafee, Jr.
19 The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly on 10 December 1948 at the Pa/ais de Chail/ot, Paris.
20 President Franklin D. Roosevelt called it one ofthe "Four Freedoms" at his State of the Union, which was afterwards therefore referred to as the "Four Freedoms Speech"- Roosevelt, Franklin Delano (January 6,
1941) The Four Freedoms, American Rhetoric
9

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 10 of 36 PageID# 1296
ll. Rights of U.S. Citizens superseding that of Foreign Nationals. That Rlegal
Foreign Nationals that have pledged allegiances to other countries are never granted more rights and protection from Government Oppression and Tyranny within the US borders than Law abiding US citizens as is the case by the Pro-Se Intervenor vs. Louisiana No. 2016-KW1198.21' 22
21 A politically and vindictively motivated prosecution of the Pro-Se Intervenor which started in 2014 in
St Tammany County, Louisiana under the Jurisdiction of District Attorney Walter Reed that was later convicted
of 18 felonies in Federal Court. The St Tammany Sheriff's office alleged that and arrested the Pro-Se Intervenor
on 1 felony count of unlawful entry into his own home, 12 felony counts of theft ofDOTD shoulder gravel misappropriated by a water hose and I felony count oftheft of oyster shells to conceal misconduct in Slidell city court and mortgage fraud. The District Attorney reduced the felonies down to three misdemeanors 2 weeks after his frred his attorney for ineffective counsel/conflict of interest, to circumvent his constitutional right to be tried by a jury of his peers in which he proved that the St. Tammany Sheriff's office forged a District Judges signature on his arrest warrant.
22 Motion Interv. pp. 54-69 infra Exhibit G, https://www.scribd.com/document/337680616
10

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 11 of 36 PageID# 1297
SUPPORTING LAW AND ARGUMENT
I. Rights Granted at the Infringement of Others- Expanded
A. FAILED Policies in the past to protect The United States against stateside
Terrorism and Espionage from Illegal Foreign Nationals
1. September 11 Attacks on Washington DC and NYC.
Section 1. Of the Presidents Executive Order 23
"State Department policy prevented consular officers from properly scrutinizing the visa applications ofseveral of the 19 foreign nationals who went on to murder nearly 3,000 Americans."
These 19 are also responsible for the total military and civilian deaths of Operation Iraqi Freedom and Operation Enduring Freedom One must contemplate if the Foreign Nationals opted to carry out a more tactical and strategic strike to cripple the United States Military's machine to defend the US citizens stateside Terrorism by instead flying the 2 planes that hit the WTC to join the plane that hit the Pentagon and for Flight 93 that was brought down by the American hero's onboard aimed at Congress to be aimed at the office of The Commander in Chief of our Military's office.
23 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 ofSeptember 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications ofseveral 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."
11

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 12 of 36 PageID# 1298

2. 1993 World Trade Center bombing. Ramzi Yousefis one ofthe main
perpetrators of the 1993 World Trade Center bombing,

"bombing of Philippine Airlines Flight 434, and a co-conspirator in the Bojinka plot. Youse/ arrived illegally in the United States on September 1, 1992, traveling with Ahmed Ajaj from Pakistan, though both sat apart on the flight and acted as though they were traveling separately. Youse/ tried to enter with a false Iraqi passport, claiming political asylum. 24

3. Bowling Green, Kentucky Incident 2011 - "dozen suspected terrorist bomb

makers, including some believed to have targeted American troops, may have

mistakenly been allowed to move to the United States as war refugees, according to

FBI agents investigating the remnants of roadside bombs recovered from Iraq and

Afghanistan. The discovery in 2009 oftwo a/ Qaeda-lraq terrorists living as refugees

in Bowling Green, Kentucky- who later admitted in court that they'd attacked U.S.

soldiers in Iraq. As a result of the Kentucky case, the State Department stopped

processing

Iraq

refugees

for

six

months

in

2011 ... "

25 '

26

24 "Ajaj tried to enter with a forged Swedish passport, though it had been altered and thus raised suspicions among INS officials at John F. Kennedy International Airport. When officials put Ajaj through secondary inspection, they discovered bomb-making instructions and other materials in his luggage, and arrested him. The name Abu Barra, an alias of Mohammed Jamal Khalifa, appeared in the manuals.....Youse/ was allowed into the United States, and was given a hearing date".- "Foreign Terrorists in America". 1998 Congressional Hearings- Intelligence and Security. Federation of American Scientists. 1998-02-24. Retrieved 2008-10-27.
25 '~••Federal officials told ABC News In 2009 A/wan applied as a refugee and was allowed to move to
Bowling Green where he quit a job he briefly held and moved into public housing on Gordon Ave., across the streetfrom a school bus stop, and collected public assistance pavouts. Federal officials told ABC News. The FBI secretly taped A/wan bragging to the informant that he'd built a dozen or more bombs in Iraq and used a sniper rifle to kill American soldiers in the Bayji area north ofBaghdad. " Quantico, Virginia - by James Gordon Meek, Cindy Galli, Brian Ross (Nov. 20, 2013) 'US May Have Let 'Dozens' of Terrorists Into Country As Refugees', ABC News
26 Motion to Interv. pp. 39-40 infra
12

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 13 of 36 PageID# 1299
4. Pearl Harbor spy Takeo Yoshikawa a/k/a Tadashi Morimura - The
Japanese spy credited for providing the critical intellmaps for the Attack on Pearl Harbor.
"Because of his expertise on the U.S. Navy, Yoshikawa was sent to Hawaii under the cover of being a vice-consul named Tadashi Morimura arriving on March 27, 1940. He rented a second story apartment that overlooked Pearl Harbor and would often wander around the island of Oahu, taking notes on Fleet movements and security measures. 28 He rented small planes at John Rodgers Airport andflew around, observing U.S. installations as well as diving under the harbor using a hollow reed as a breathing device. 29 He also gathered information by taking the Navy's own harbor tugboat and listening to local gossip. 30 When the FBI picked him up on the day of the attack, there was no incriminating evidence of his espionage. He eventually returned to Japan in August 1942 in a diplomat prisoner exchange. It was not known for some time that he was the chiefJapanese agent in Hawaii." 31
This is an indication as to what one foreign national that is an enemy ofthe state is capable of. Not only was he crucial in the deaths of2,403 Americans I 1,178 wounded I Destruction of 188 U.S. aircraft I 4 battleships, 3 cruisers, 3 destroyers sunk but many Japanese blame him for the deaths resulted from both Atomic bombs.32
28 Takeo Yoshikawa and Norman Stanford (Dec 1960) "Top Secret Assignment". U.S. Naval Institute Proceedings.
29 Will Deac. "Takeo Yoshikawa: World War II Japanese Pearl Harbor Spy". Retrieved 2007-05-03. 2006-12-18.
30 In summarized reports the day before the attack from the spy, Takeo Yoshikawa:" Dec. 6. "Vessels moored in harbor; nine battleships; three Class-8 cruisers; three seaplane tenders; 17 destroyers. Entering harbor are four Class-8 cruisers, three destroyers. All aircraft carriers and heavy cruisers have departed harbor ... no indication of any changes in U.S. fleet or anything unusual"- 'Japan's Attack Surprised U.S. Despite Warnings'
December 06, 1991- Kenneth Reich and Richard E. Meyer, Los Angeles Times 31 O'Neal, Michael J. "Pearl Harbor, Japanese Attack on". Retrieved 2006-12-18. 32 "The locals blamed Yoshikawa for the war. They even blamed me for the atomic bomb, he declared in
one interview. " 'The Pearl Harbor Spy, Part II' by Miss Cellania in The Bathroom Reader, History, Weapons & War, Dec 6, 2010.
13

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 14 of 36 PageID# 1300
B. Failed Policies in the past to protect The United States against other forms of
stateside harm from lllegal Foreign Nationals
1. Marie) boatlift- The Marie! boatlift was a mass emigration of Cubans, who
traveled from Cuba's Mariel Harbor to the United States between 15 April and 31 October 1980. The arrival of the refugees in the U.S. created problems when it was discovered that a number ofthe refugees had been released from Cuban jails and mental health facilities by Fidel Castro. It caused the landmark case Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir. 1986), by the Eleventh Circuit Court of Appeals, a decision ruled in which the United States could indefinitely detail Cuban refugees who had arrived during the 1980 MarieI boatlift. The opinion by Judge Clarence W. Allgood on April 23, 1986 further specified that the refugees;
"had not demonstrated the sort of executive branch actions that are normally associated with the establishment of a liberty interest, that thev fail to demonstrate the existence of the particularized standards ofreview that vield a protected liberty interest".
2. Modern day Economic Espionage from Cuba- ~~ Miami man, [Eduardo
Perez] has been arrested in an unprecedented money-laundering case that alleges some part of$238 million gained from Medicare fraud was secretly pumped into the Cuban funds every year in South Florida. Investigators, prosecutors and members of Congress have speculated that the Cuban government may be behind the Medicare fraud scheme. The massive money laundering operation, as described by a federal prosecutor, was unprecedented because it marked the first U.S. case connecting South Florida's Medicare rackets to Cuba's national bank. In Miami-Dade County, where 24 percent of the population was born in Cuba, immigrants from the island account for 73 percent of arrests for health care fraud; 72 percent ofarrests for cargo theft; 59 percent of arrests for marijuana trafficking; and half the arrests for credit-card and insurance fraud_. Among Cuban-born defendants sentenced to federal prison tor these crimes, two out of three are still Cuban citizens." 34
34 'The Immigrant Crime Wave Both Ann Coulter and Donald Trump Missed', Humberto Fontova Aug
25,2015, The Blaze
14

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 15 of 36 PageID# 1301
3. Nazi War Criminals Escape to South America in violation ofthe U.S.'s
Monroe Doctrine 35
"Secretfiles have revealed that an estimated 9,000 Nazis, including Holocaust
mastermind Adolf Eichmann and Auschwitz doctor Josef Menqele, fled to South
America in the aftermath of the Second World War Most, perhaps as many as 5,000,
went to Argentina; between 1,500 and 2,000 are thought to have made it to Brazil; around 500 to 1,000 to Chile; and the rest to Paraguay and Uruguay. These numbers do not include several hundred more who fled to the safety of right-wing regimes in the Middle East. Previous estimates as to how many Nazis fled to South America have varied wildly from 5,000 to 300,000." 36
35 'Monroe Doctrine was a U.S. policy of opposing European colonialism in the Americas beginning in 1823. It stated that further efforts by European nations to take control of any independent state in North or South America would be viewed as "the manifestation ofan unfriendly disposition toward the United States."
-www.en.wikipedia.orglwiki/Monroe_Doctrine 36 - www.dailymail.co.uk/news/article-2117093/Secret-files-reveal-9-000-Nazi-war-criminals-fled-SouthAmerica-WWII
15

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 16 of 36 PageID# 1302

C. Successful Policies in the past to protect The United States against
other forms of stateside harm from Citizens that have pledged allegiance to other countries
1. President Ronald Reagan had ordered the Public Health Service to add HIV to its contagious
disease list through an executive order, 37 backed with a Congressional ratification ofthe ban. The U.S. Senate passed (And Signed by President Bill Clinton) an amendment to the National Institutes ofHealth Reauthorization Bill on Feb. 18, 1993 that would make the current Bush Administration policy to ban immigration for people with HIV into law. Called the Nichols Amendment, it excludes any Foreign National with HIV from entering the United States?8 Under this ruling, travelers carrying HIV could be banned from entering the United States. Popular criticism to President Reagans ban was that this was a kneejerk reaction based on inadequate data at the time on the transmission ofHIV virus. This criticism is easily quelled as restrictions on the immigration ofAID/1-ITV carriers would remain on the books until the year 2008. 39
II. Maliciously Motived Lawsuits against E.O.
A. Politically Motivated ACLU Led Lawsuit in mirrored case No. 1:17-CV-00480 in
the E.D. ofNY

37 Supplemental Appropriations Act of 1987, Pub L. No. 100-71, § § 518, 101 Stat. 391, 475(1987). The

Department of Health and Human Services subsequently amended 42 C.F.R. § 34.2(b) (4) to reflect the addition
mv of to the list ofexcludable diseases. 38 'U.S. Ban on IllV-Positive Visitors, Immigrants Expires' By Devin Dwyer, Washington, (Jan. 5, 2010)

ABC News.

mv 39 1993 Nichols Amendment, specifically required

to be classed as a disease of public health

significance. The exact wording ofthe law was that '~ny alien ... who is determined...to hove a communicable

disease ofpublic health significance~ which shall include infection with the etiologic agent for acquired immune

deficiency syndrome"

16

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 17 of 36 PageID# 1303
1. Other presidents have blocked groups ofRlegal Foreign Nationals from entering the
U.S. 65-year-old provision of the Federal Immigration and Nationality Act.- The provision gives presidents broad authority to ban individual immigrants or groups of u. mm.grants. 40
"Bill Clinton 12 times, George W. Bush six times Ronald Reagan five times. George H. W. Bush invoked it once"
"Barack Obama invoked it 19 times, Obama- He turned to the provision more than anv other recent president" 41
2. Ratings of Candidates by ACLU
a. Hillary Clinton has a 75% lifetime rating from the ACLU
-'Hillary Clinton on Civil Liberties'- By Tom Head (February 2016) www.Civilliberty.About.com b. Bernie Sanders has a Positions Rating of 100% from the ACLU 42
40 "whenever the President finds that the entry ofany aliens or ofany class ofaliens 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 ofall aliens or any class ofaliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate"- 8 U.S. Code§ 1182-
Inadmissible aliens
41 ••••using it to bar people who conducted certain transactions with North Korea, engaged in cyberattacks aimed at undermining democracy or contributed to the destabilization ofLibya, Burundi, Central African Republic or Ukraine. His broadest application ofthe law came in 2011, when he suspended entry of foreigners "who participate in serious human rights and humanitarian law violations and other abuses," including "widespread or systemic violence against any civilian population" based on, among other factors, race, color, disability, language, religion, ethnicity, political opinion, national origin, sexual orientation or gender identity. Obama has also used the law to block anybody involved in "grave human rights abuses by the governments of Iran and Syria" through the use ofcommunications technology to disrupt computer networks or provide monitoring or tracking."
-'Other presidents have blocked groups of foreigners from the U.S.', Ann M. Simmons, Alan Zarembo (Jan 31, 2017) LA Times
17

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 18 of 36 PageID# 1304
42 www.Votesmart.org
3. This next citation shows not only how politically biased the ACLU is but also how
unprofessional.
"I hope Trump enjoys losing. He's going to lose so much we're going to get sick and tired of his losing,"
ACLU national political Director Faiz Shakir told Yahoo News shortly after the decision was announced." 43
4. The "Pro-Se Intervenor " has sought the assistance of groups including the ACLU as an
indigent defendant in 2015-2016 for his civil rights violations and Federal offenses committed against him by the 22nd Judicial District system of St. Tammany, Louisiana with no response. The American Civil Liberties Union (ACLU) claims to be a
"nonpartisan, non-profit, organization whose stated mission is to defend and
preserve the individual rights and liberties guaranteed to every person in this country by
the Constitution and laws of the United States." 44
American Civil Liberties Union, a 501(c)(4) social welfare group, are tax deductible, and only the 501 (c)(4) group can engage in unlimited political lobbying.
"In the year ending 2014, the ACLU and the ACLU Foundation had a combined income from support and revenue of$100.4 million, originating from grants {50.0%}, membership donations {25.4%), donated legal services (7.6%}, bequests {16.2%}, and revenue {0.9%}." 44
If the ALCU claims to be non-partisan, then why did they elect to be classified as an "501(c)(4) group can engage in unlimited politicallobbving?"
43 'ACLU wins legal challenge against immigration ban: Hope Trump enjoys losing', Hunter Walker, (January 28, 2017) Yahoo News'
18

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 19 of 36 PageID# 1305
44 www.Wikipedia.orglwiki/American_Civil_Liberties_Union
B. Financially motived lawsuit -
1. The ACLU's annual urevenue of$100.4 million" was increased by 25% in 2 days
from donations specifically claiming to be going to the defense of refugees in danger that were refused to be let into our borders. Self-proclaimed 911 Truther celebrity Rosie O'Donne11 47 as also been a part of the campaign to raise money for ACLU against the President's E.O.
"In a normal vear, the activist group makes about $4 million in online
donations. In one weekend, it raised six times as much monev. Officials at the ACLU said they were stunned and gratified by the surge in financial support. It came on the same weekend that the ACLU and its allies successfully challenged portions of President Trump's travel ban in court......Many celebrities encouraged their social media followers to support the group, and some even pledged to match some donations....Rosie O'Donnell......are some of the entertainers who joined in." 48
4 million I 365 = Aprox $11,000 I day. This rate was increased to 12 million I day. That is an increase of109 thousand percent in online donations.
In Case 17-CV-00480 in the E. D.NY, The following "Law Interns" Amit Jain, Natalia Nazarewicz, My Khanh Ngo, YusufSaei, Rachel Wilfmake up 5 out of the 20 people named in preparing the Petition for the original Writ this Pro-Se Intervenor wishes to make this Motion on. Will they receive any portion ofthe 25 million in donations?
47 "On March 29, 2007, she promoted trutherism, saying ofSeptember 11th: "I do believe it is the first time in history that fire has ever melted steel."- 'Rosie O'Donnell Just Doubled Down on Her 9/11 Truther Conspiracy Beliefs', By Scott Whitlock (August 9, 2014) www.Newsbusters.org
48 'A.CLU racks up $24.1 million in donations over weekend', by Brian Stelter Brianstelter, (January 30, 2017) www.Money.CNN.com
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C. N.Y. A.G. Malicious Motion to Intervene in support of Foreign Nationals
from Ban list
1. In case #1:17-CV-00480 Darweesh vs. President Trump filed in the E.D. ofN.Y.,
A.G. Eric Schneiderman (Democrat Party) makes 2 major misrepresentations in his claims. Doc 39-1 p.9,10 of33 states; 49
"On Jan 28. 2017. the dav after the signing of the EO. Rudolph Giuliani, a close advisor to the President Trump, was asked whether the ban had anything to do with religion. Mr. Giuliani replied, "I'll tell you the whole history ofit. So when [President Trump] first announced it, he said 'Muslim Ban.' He called me up. He said, 'Put a commission together. Show me the right way to do it legally.'...And what we did was, we focused on, instead of religion, danger-the areas ofthe world that create danger for us"
At ftrst glance the verbiage was written to appear that the President referred to the EO as a Muslim Ban in the ftrst week ofhis presidency. What AG Schneiderman failed to mention was that this confidential attorney work product between Donald Trump and Rudy Giuliani was discussed 6 months before he was sworn in as president. Congressman Peter King on radio, clears up the confusion in which AG Schneiderman masks his claim behind;
"Rudy is actually confusing two different meetings," he said. "I was at the first meeting that we had with Donald Trump, Rudy... and several others. That was in August. And that was focused primarily on domestic security, about surveillance, issues like that. Then there was another meeting October which I was not at; McCaul was on television Friday and we said that he had a meeting with Rudy Giuliani in October and that's when they discussed the executive order." 50
°49 Motion Interv. pp. 43-46 infra Exhibit D
5 Congressman Peter King, interview with The Joe Piscopo Show- 7 AM 2-7-17 Congressman Peter King on the travel ban controversy.
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It is important to note that the AG is allowed to state this hearsay because he protects himself from perjury by not submitting an Affidavit with his Motion to Intervene.
2. A second misrepresentation in case #1:17-CV-00480 Doc 39-1 is found on
Paragraph. 81. 49
"Sections 3 and 5 of the E.0. target individuals for discriminatory treatment based on their country oforigin and/or religion, without lawful justification."
How can the Attorney General group the two fundamental elements of the argument together? This is clearly a feeble attempt to re-define ~~country oforigin" to ~~religion" in the Presidents E.O. to help his baseless and malicious claims. 51
3. "Rev." AI Sharpton - treasonous support of Somalian terrorists the day after the
Seal team Six rescue of Captain Philips 52
11(12:08): You can call me now at 1 877 532 5797, (to say) something about the
so-calledpirates. They call themselves voluntary Coast Guards in Somalia. which may be more apt"- 'Keepin' It Real yo withAl Sharpton WWRL,'- April13, 2009
51 "Despite news reports mentioning exemptionsfor Christians, the actual text of the Executive Order covering seven countries makes no mention of Christians or Shia Muslims (both religious minorities in Syria), but merely states an intention,"... to prioritize refugee claims made by individuals on the basis ofreligious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of
nationality." - 'Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United State', New York Times, 27 January 2017.
52 'Maersk Alabama terrorist hijacking - On Sunday, 12 April2009, U.S. Navy SEAL marksmen opened fire and killed the three pirates on the lifeboat. Phillips was rescued uninjured. Commander Castellano, with prior authorization from higher authority, ordered the action after determining Phillips' life was in immediate danger, citing reports that a pirate was pointing an AK-47 rifle at Phillips' back. Navy SEAL snipers, from SEAL Team Six, fired approximately 6-7 shots/rom Bainbridge'sfantail, killing the three pirates with bullets to the head.'-
www.en.wikipedia.org/wiki/Maersk_Alabama_hijacking
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4. A.G. Eric Schneiderman- treasonous support of"Rev." AI Sharpton 16
months later;
"I am so honored to receive the support of Reverend AI Sharpton, a leader on human and civil rights not just here in New York but nationally," Eric Schneiderman said today. "I will be an Attorney General for all New Yorkers, to promote equal justice for all, and with the Reverend's support, we are a major step closer to making that happen."- A.G. Eric Schneiderman 53
III. Petition for Habeas Corpus Writ
"JURISDICTION AND VENUE claim #2 - the requested reliefis properly styled as a petition for habeas corpus because the Supreme Court "has repeatedly held that habeas corpus is available to an alien seeking entry into the United States. " 54
The claim and request for petition for Habeas Corpus is baseless and inapplicable for the following reasons;
A. Petition of Writ of habeas corpus is Inapplicable and Baseless since the petitioners are I
were at this time free to go to any other country.
"The privilege ofhabeas corpus is not a right against unlawful arrest. but rather a right to be released from imprisonment after such arrest The U.S. Constitution specifically includes the habeas procedure in the Suspension Clause (Clause 2), located in Article One, Section 9. This states that "The privilege ofthe writ ofhabeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it". Section 9 is under Article 1 which states, "legislative Powers herein granted shall be vested in the Congress of the United States" 55
53 www.sohojoumal.com/content/reverend-al-sharpton-endorses-eric-schneiderman-attomeygeneral (8/25/2010)
54 Jones v. Cunningham, 371 U.S. 236,239 (1963). 55 www.wikipedia.org/Habeas_corpus_in_the_United_States
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B. The only quasi-applicable version of Habeas corpus applies to its International Variant -
Article 3 of the Universal Declaration of Human Rights provides that "everyone has the right to life, liberty and security ofperson". Article 5 of the European Convention on Human Rights goes further and calls for persons detained to have the right to challenge their detention, providing at article 5.4: "Everyone who is deprived ofhis liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness ofhis detention shall be decided speedily by a court and his release ordered if the detention is not lawful"
C. When an international variant of Habeas Corpus is applicable because of the Proper
Definition of "Detainment" a. U.S v. Amistad, (1841), Associate Justice Joseph Story delivered the Court's decision; "Upon the whole, our opinion is, that the decree of the circuit court, affirming that of the district court, ought to be affirmed, except so far as it directs the negroes to be delivered to the president, to be transported to Africa, in pursuance of the act of the 3rd of March 1819; and as to this, it ought to be reversed: and that the said negroes be declared to be free, and be dismissed from the custody of the court, and go without delav'' 56
b. Boumediene v. Bush (2008), was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba 57
56 united States v. Schooner Amistad, 40 U.S. 518 (1841) 57 Boumediene v. Bush, 553 U.S. 723 (2008)
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c. U.S. hikers in Tehran, Iran-"The two U.S. hikers detained for two grueling years in Iran on [Alleged] spying charges have been sentenced to eight years in prison, Iran's state-run TV reported Saturday. " 58
IV. Reason for North Korea Exclusion - Adding North Korea to the ban
on countries would not be constructive
A. Main concern and need for this Temporary E.O. is based on the failed current policy
and method in screening the massive amount of refugees from the Countries on the list.
"The group, which arrivedfrom an unnamed Southeast Asian nation, includedfour women who said that they had been the victims offorced marriage. Since this first group of
refugees, the U.S. has admitted approximately 170 North Korean refugees by 2014. Between 2004 and 2011, the U.S. has admitted only 122 North Korea refugees and only 25 have
received political asylum. A number of North Koreans have entered illegally, estimated at
about 200, and generally settle in the ethnic Korean community in Los Angeles." 59
B. Syria's refuges are estimated to be "6,130,000- 6.320.000 refugees (based on UN
estimate, March 2016)" 60
"In August 2016, the U.S. reached its goal of admitting and resettling 10,000 Syrian refugees, most of whom were admitted to the U.S. in the previous three months-" 61
58"Fattal and Bauer and another person, Sarah Shourd, were seized on July 31, 2009 when they were hiking in the Iraqi Kurdish region and allegedly crossed into Iran illegally........They have been denied adequate access to their lawyer and have had very limited access to consular assistance," the human rights watchdog said last month.......Iranian authorities have ignored repeated appealsfrom the international community and the men'sfamilies to release them and President Mahmoud Ahmadinejad has hinted that the hikers were being held as a bargaining chip to be used in Iran's dealings with the United States."
- CNN Wire Staff, 'U.S. hikers in Iran get 8 years in prison, state media reports', CNN (August 21, 2011)
59 BBC. Life and Death in Syria. 1503/2016.[1] "The United Nations estimates that 17.9 million people still live in Syria - down from 24.5 million before the war broke out."
60 www.en.wikipedia. orglwiki/North_Korean_defectors#United_States
61 Haeyoun Park & Rudy Omri, U.S. Reaches Goal of Admitting 10,000 Syrian Refugees. Here's Where They Went., New York Times (31 August 2016).
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V. Percentages of Muslims Affected Worldwide

A. The most prominent claim from the opponents of this E.O. is also the easiest to

negate as it is easily disproven using remedial math. The sums ofpercentages ofthe 7 listed

countries are as follows; (Percent oftotal worldwide Muslims)

Iran

-4.6%

Iraq

- 1.9%

Libya

-0.4%

Somalia

- 0.6%

Sudan

-1.9%

Syria

-1.3%

Yemen

-1.5%

Yields a 12.2% of population of total worldwide Muslims 62

B. The only other possible argument is that the E.O. allegedly targets countries with the highest
percentage of Muslims. Using Syria's percentage of90% as a gauge, we find 26 other countries with a percentage higher than that figure. See Exhibit B 63

62 www.en.wikipedia.orglwikillslam_by_country 63 Motion lnterv. pp. 41-42 infra Exhibit C
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CONCLUSION
1. This lawsuit by the ACLU and similar groups is merely a political tactic to derail and hinder
our Commander in Chiefs ability to lead the Executive branch and our Armed forces from the possible attack of enemies, foreign and domestic. If this can legally be further proven in court, the ALCU would therefore by definition be guilty of treason against the United States. Morally, this Lawsuit by the ACLU is atrocious as their headquarters is located 3700ft from the where the Twin Towers once stood. It is also insulting to U.S. Citizens similar to the Pro-Se Intervenor that was born and raised 20 miles from the WTC and President Trump who was born and raised approx. 5 miles from the WTC.
2. Trumps executive order is only a temporary 90 day ban. 64 Virtually ANY executive order
should be granted if only temporary and if it is in the first 100 days ofthe transition ofa new President if it is on the basis of gathering empirical data to fix or improve on a failed or weak policy.
3. In Section 5 of the ACLU's Writ-. "Haider Sameer Abdulkhaleq Alshawi, named Petitioner, is a citizen ofIraq and recipient ofa Follow to Join (FTJ) Visa. His wife and child are lawful
permanent residents residing in Houston, Texas. 65 One must ask why he continued to battle the legality ofhis admission into this country in NYC where he could have easily traveled to Nuevo Laredo, Mexico which is 315 miles away from his family, where they could have easily made the trip to be with him.
64 Worded in Executive order 13769 65 Petition For Writ 1: 17-CV-00480 E.D.N.Y.
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4. The Pro-Se Intervenor recognizes and appreciates that the United States is a "Melting Pot"
and was built on the promise to accept any person from any country escaping immoral persecution since 1492, as his parents had green cards and were also immigrants, both from Palazzo San Gervasio, Italy. Furthermore if immigrants are from countries (deemed to be enemies ofthe US by Presidents before Pres Trump), then they are by definition an Ally of the U.S. We must also keep in mind that any of these refuges escaping tyranny abroad may turn out to be our countries next Albert Einstein or Wernher Von Braun 66 but a minimal amount of safeguarding must be in place to prevent the next Osama Bin Laden from access to our borders.

5. On issues this politically sensitive, AG Schneiderman should not be allowed to Intervene on
behalf of the entire state ofNY as counsel, nor should any other AG from any other state falsely claiming to represent the entirety of their continuants in an official capacity. At minimum they should have to resubmit their briefs and motions affirming their correctness under penalty of perjury just as Pro Se applicants are required to do.

6. There should be a minimal amount of safeguards in place to protect this and future Presidents

from this kind of vexatious, vindictively and politically motivated persecution and civil

liability especially during their sensitive transition phase into the White House. I Place the

ACLU and the N.Y. AG Schneiderman in the same official capacity and standing as Anti-

Trump

crusader

Juan

Pierre

Griffin,

67 '

68

using

his

recent

lawsuits

against

the

Executive

and

66 Wernher Von Braun having been previously arrested by the Gestapo, in Nazi Germany fled that regime to
become the father ofthe American Space program by developing the rockets that launched the United States' first space satellite Explorer 1, and the Apollo program manned lunar landings.
67 "First, Plaintiffalleged ....., the President, and Congress committed treason "with the help of the Chinese Government.....Piaintiff also alleged the President and Congress failed to enforce the Thirteenth Amendment, asserting "[s]lavery should have ended In 1783 notwithstanding the fact the Thirteenth Amendment was not passed untii1865...He also alleged injury because "Ulor almost 3 years Icouldn't use the World Wide Web.......Pending resolution ofthe vexatious litigant status ofGriffin, he shall file no further actions in this court...... For these alleged injuries, Plaintiffsought "$999 trillion dollars in damages."
-Griffin v. 1. President Trump, 2. Every European Union country, et al, 3. Every United States District Court, 4. Entire United States Congress , E.D.WASH.(Jan, 2017),
68 Motion to Interv pp. 48-53 infra. Exhibit F
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Legislative branches of government as an averaging standard for which his lack of standing and knowledge ofthe law is matched by his fellow proponent's collective moral compass. If it is the right of these groups to file suit against the President for any temporary order or act as Commander in Chiefthen immediately following the denying ofthis Motion to Intervene, Similar ProSe suits against Judge James L. Robart for his decision to issue a Nationwide temporary restraining order (TRO) will be filed in his District Court of Washington State accompanied with a subpoena to for him to travel from Seattle to both Federal courts in Virginia and New York where the suit originated and became the models for all other suits 69
7. Adding North Korea to the ban on countries, although would quell all accusations from
Presidents Trumps political opponents of this ban of being anti Muslim in nature, would not be constructive. It is apparent that President Trump refuses to "play politics" as he is not a "career politician." Does the American people really want him to start acting like a career politician and more like salesmen when he addresses and leads this nation? 70
8. Alleged Campaign Promises -Never before has there been such Political retaliation in
Federal court to a President to attempt to hold him liable for policies he may or may have not have discussed months before being sworn into office. Ifthe Federal courts are to make a final ruling in favor ofthe Petitioners based on statements made before being elected or sworn in, then inversely, those same courts and Judges would forever be haunted by an unlimited amount of lawsuits worldwide to past Presidents for the unfulfilled campaign promises being broken armed with this new Case Law.
69 "AG Ferguson Obtains Court Order Halting Trump Immigration Action". Washington State Office of the Attorney General. February 3, 2017. Retrieved February 3, 2017.
70 "One day after Ryan announced he would no longer campaign on Trump's behalf, the GOP nominee said as part of a barrage oftweets that the top-ranking Republican is "weak and ineffective" and is providing "zero support'' for his candidacy. Trump also declared that "the shackles have been taken off' him, liberating him to "fight for America the way I want to." ..................."Dis/oval R's are far more difficult than Crooked Hillarv." he wrote for his more than 12 million followers on Twitter, his preferred platform for picking fights. '7hey come at you from all sides. They don't know how to win - I will teach themi"-
'Trump declares war on GOP, says 'the shackles have been taken off' By Sean Sullivan, Robert Costa and Dan Balz October 11, 2016 - www.washingtonpost.com
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PRAYER
WHEREFORE, The Pro-Se Intervenor prays that this Federal Court grant the following;
1. Re-Affmn E.O. 13769 Ban by order ofthis Federal Court for the remainder ofthe 90 day period on the grounds that Imminent danger does in fact exist, that would be
deemed i"eparable injurv, as Foreign terrorists and criminals would use this window of opportunity I uncertainty in Immigration policy as the United States argues this topic in Federal Courts to gain access into our borders in the next few weeks.
2. Allow latitude 71' 73 in the presentation of this Motion For Intervention since it is done
without counsel and solely on what the Pro-Se Intervenor could learn about law since he terminated his counsel in his Court trial in April of 2016 and was denied a public defender 72
3. As a Path forward in the Pro-Se Intervenor's Allegations ofFraud and Treason (against these United States of America) towards the ACLU, I move that this Federal court order the forfeiture ofthe over 25 million dollars raised by the ALCU under false pretenses and use it to provide temporary comfortable living quarters at a "campus" for any of the refugees that have children that are in immediate danger from their home countries until it the President lifts its ban after its 90 day period.
71 Motion to Interv. pp.32-33 infra 72 Motion to Interv. pp.54-69 infra. Exhibit G
73 "Constitutional 'rights' would be oflittle value if they could be indirectly denied."- Gomillion v.
Lightfoot, 364 U.S. 155 (1966), cited also in Smith v. Allwright, 321 U.S. 649.644. 29

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 30 of 36 PageID# 1316
4. Order that the ACLU should be disqualified from filing any future suits against this
Executive Order
5. Order that the ACLU should appear before a congressional hearing on Campaign Finance
Illegalities
6. Demand a Federal Audit into the campaign money raised by the ACLU against this
Executive Order. If there is one thing political element that has protesting this EO has proven, it is that in certain instances a President may have to "play politics. " 70 If by Including North Korea to the E.O. were to end this nations division on this matter then President Trump should contemplate sidestepping his morals this one time and add this nonconstructive amendment.
7. To immediately reject any other civil lawsuits on any other ranking member of branch
ofarmed forces that challenges any order given by them during war or peacetime, such as orders from an Admiral to order the launching of sorties from a Nimitz Class Aircraft carrier or Cruise missiles from a Destroyer in support of U.S. Ground troops.
8. That this Federal court consider the facts presented in this Motion and affirm by declaratory
judgment that E.O. 13769 does NOT target the Muslim religion.
9. That the Constitutional Rights of each and every a U.S. citizen SHALL NEVER be denied
indirectly through politicization. 74
10. I pray that his political opponents stop the country wide protesting and division on this
matter and heed the words or President Clinton (a few hours after he testified before the Office of Independent Counsel and the grand jury and 3 days before he launched 75 cruise missiles to Afghanistan and Sudan for alleged "imminent terrorist plots") 75
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"Our country has been distracted by this matter for too long......., Now it is time -- in fact, it is past time to move on, We have important work to do -- real opportunities to seize, real problems to solve, real security matters to face, And so tonight, Iask you to turn away from the spectacle of the past seven months, to repair the fabric ofour national discourse, and to return our attention to all the challenges and all the promise of the next American century."
-President Clinton
74 "Constitutional 'rights' would be oflittle value if they could be indirectly denied."- Gomillion
v. Lightfoot, 364 U.S. 155 (1966), cited also in Smith v. Allwright, 321 U.S. 649.644
75 "With about 75 missiles timed to explode simultaneously in unsuspecting countries on two continents, the operation was the most formidable U.S. military assault ever against a private sponsor of terrorism.........The president made no apologies for ordering the strikes without permission from Afghanistan or the Sudan, saying, "Countries that persistently host terrorists have no right to be safe havens. ".......Clinton's stone-faced appearance marked his emergence from two days ofshelter from a howling political storm. He returned to the White House on Thursday afternoon from vacation on Martha's Vineyard, where he was trying to repair family ties damaged by his admission Monday of an intimate relationship with a White House intern.............But while the Republican leadership rallied to support the raids, some members of Congress reacted suspiciously, noting that the action followed by three days Clinton's acknowledgment to the public and a grand jury ofhis relationship with former intern Monica Lewinsky."
- 'U.S. Cruise Missiles Strike Sudan and Afghan Targets Tied to Terrorist Network' By JAMES BENNET www.pa.rtners.nytimes.com/library/world/afiica/082198attack-us.html
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46 Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA) "It was held that a prose complaint requires a less stringent reading than one drafted by a lawyer"
Davis v. Wechter, 263 U.S. 22, 24; Stromberb v. California, 283 U.S. 359;NAACP v. Alabama, 375
U.S. 449 (1972) (6th Cir. USCA) ""The assertion offederal rights, when plainly and reasonably made, are not to be defeated under the name oflocalpractice. "" Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938) (6th Cir. USCA) ""Pleadings are intended to serve as a means ofarriving atfair andjust settlements ofcontroversies between litigants. They should not raise barriers which prevent the achievement ofthat end Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end ofajustjudgment."" Jenkins v. McKeithen, 395 U.S. 411, 421 (1959) "Prose pleadings are to be considered without regard to technicality; prose litigants'pleadings are not to be held to the same high standards ofperfection as lawyers." Haines v. Kerner, 404 U.S. 519 (1972) "allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to callfor the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations ofthe pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears" Hall v. Bellmon, 935 F.2d 1106, 1110 (lOth Cir. 1991) "A prose litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. " Picking v. Pennsylvania Railway, 151 F.2d. 240, (3nl Cir. 1945) "The plaintiffs civil rights pleading was 150 pages and described by afederal judge as "inept". Nevertheless, it was held "Where a plaintiff pleads prose in a suitfor protection ofcivil rights, the Court should endeavor to construe Plaintiffs Pleadings without regard to technicalities." Gideon v. Wainwright, 372 U.S. 335, No. 155. (1963) "The right of an indigent defendant in a criminal trial to have the assistance ofcounsel is afundamental right essential to afair trial, and petitioner's trial and conviction without the assistance ofcounsel violated the Fourteenth Amendment. " Conley v. Gibson, 355 U.S. 41 at 48 (1957) "The federal rules reject the approach that pleading is a game ofskill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose ofpleading is to facilitate a proper decision on the merits. " Elmore v. McCammon 640 F. Supp. 905 (1986) "'~ .. the right to file a lawsuit prose is one ofthe most important rights under the constitution and laws." Boyd v. U.S., 116 U.S. 616 (1886) -"The court is to protect against any encroachment of Constitutionally secured liberties. " Owen v. Independence, 100 S.C.T. 1398, 445 US 622; Scheuer v. Rhodes, 416 U.S. 232)-" Officers ofthe court have no immunity, when violating a Constitutional right, from liability. For they are deemed to know the law. "
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AFFIDAVIT VERIFYING AI~I~EGATIONS/ CORRECTNESS
I certify/declare, under penalty of perjury that the allegations contained in this Motion for Intervene are true, to the best of my knowledge I belief and that;
(a) TillS Motion For Intervention was written in a politically impartial and
unbiased mindset as the I did not vote for President Trump, and that the only monetary campaign contributions I have ever given to a candidate was to former President Obama in 2008
(b) I, Vincent Molino (Pro-Se Intervenor), satisfies the requirements to intervene as
a matter of right under Rule 24(a). Federal Rule of Civil Procedure 24(a) provides that "the court must permit anyone to intervene who ... claims an interest relating to the property or transaction that is the subject ofthe action, and is so situated that disposing ofthe action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." 1) Prove an interest in the subject matter ofthe action; 2) that the protection ofthis interest would be impaired because ofthe action 3) that the applicant's interest is not adequately represented by existing parties
to the litigation." The Pro-Se Intervenor satisfies each requirement; As a former supporter ofPresident Obama and now speaking on behalf of President Trump, et al., I can affirm that I am in fact representing over 50% of the America people cannot make a similar brief. This includes not only the
33

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 34 of 36 PageID# 1320
electoral votes President Trump won in the 2016 election but also the people that did not vote for him but trust in the executive's branch's ability to carry out policy in an republic. To allow a political and lobbying machine as powerful as the ACLU and the N.Y. A.G. to represent these foreign Nationals without a voice to argue on behalf ofthe citizens that require this E.O. to feel safe. To not allow at least ProSe citizens to intervene into this delicate matter of national security would be prejudicial and constitutionally offensive.
(c) No attorney or party or anyone else has prepared, or assisted in the preparation
ofthis document and that it was drafted in approx. 80 man hours by myself, Pro-Se Intervenor, Vincent Molino
(d) A copy of this Motion has been U.S. priority mailed on February 22th, 2017 to
Albert V. Bryan U.S. Courthouse United States District Court Eastern District of Virginia 40 1 Courthouse Square Alexandria, VA 22314
(e) A copy ofthis Motion has been emailed to the following parties on Feb. 22th,
2017
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Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 35 of 36 PageID# 1321

Dennis Carl Barghaan, Jr. United States Attorney's Office 2100 Jamieson Ave Alexandria, VA 22314 (703)299-3700 dennis.barghaan@usdoj .gov
The Honorable John F. KeUy Secretary of Homeland Security Washington, D.C. 20528 publicaffairs.iceofficeof@dhs.gov
Simon Sandoval Moshenburg Rebecca Ruth Wolozin Legal Aid Justice Center (Falls Church) 6066 Leesburg Pike Suite 520 Falls Church, VA 22041 703-778-3450 becky@justice4all.org simon@justice4all.org
Michael Erich Kientzle Arnold & Porter Kaye Scholer LLP 601 Massachusetts Ave NW Washington, DC 20001-3743 202-942-5000 michael.kientzle@apks.com
Carmen Nicole Green Americans United for Separation of Church and State 1310LStNW Suite 200 Washington, DC 20005 202-466-3234 green@au.org

Joshua David Rogaczewski McDermott Will & Emery (DC) 500 North Capitol Street NW Washington, DC 20001 (202) 756-8195 jrogaczewski@mwe.com
Cecillia Derphine Wang ACLU headquarters 125 Broad St., 18th floor New York, NY 10004 1-415-343-0950 Cwang@aclu.org
Michael Angelo Tilghman Office of the Attorney General for the District of Columbia 4414th StNW 6th Floor South Washington, DC 20001 202-727-6247 michael.tilghman@dc.gov
James Edward Tysse Akin Gump Strauss Hauer & Feld LLP (DC) 1333 New Hampshire Ave NW Washington, DC 20036 202-887-4571 jtysse@akingump.com
Stuart Alan Raphael Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 804-786-7240 sraphael@oag.state.va.us

Case 1:17-cv-00116-LMB-TCB Document 113 Filed 02/24/17 Page 36 of 36 PageID# 1322
Matthew Robert McGuire Office ofthe Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 (804) 786-7773 mmcguire@oag.state.vaus
Trevor Stephen Cox Office ofthe Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 (804) 786-7704 Email: tcox@oag.state.va.us
BEFORE ME THIS 22nd DAY OF FEBRUARY, 2017
v ~
Vin!J. Molino (Pro-Se Intervenor) www.linkedin.com/in/vinnymolino Bye-bye-boo-boo.com Vincentmolino99@yahoo.com 985-551-0778
Lt7 Jvsti~ r}r
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Case 1:17-cv-00116-LMB-TCB Document 113-1 Filed 02/24/17 Page 1 of 2 PageID# 1323
EXHIBIT A
Age I Residence Protester Demographic
37

Case 1:17-cv-00116-LMB-TCB Document 113-1 Filed 02/24/17 Page 2 of 2 PageID# 1324

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BUSINESS INSIDER
ELECTION;~ 2016
VOTER TURNOUT, BY COMMUNITY TYPE
(I HILLARY CUNTON 11!1 DONALD TRUMP
CITY OVER SOK, 34%

SUBURBS, 49%

SMALL CITY AND RURAL, 17%

SOURCE: Edison Research for the National Election Pool NOTE: 24,537 respondents
38

Case 1:17-cv-00116-LMB-TCB Document 113-2 Filed 02/24/17 Page 1 of 2 PageID# 1325
EXHIBITB
2011 FBI Surveillance Footage - Storage Unit in Bowling Green, Kentucky
(Enhanced in Photoshopfor clarity)
39

Case 1:17-cv-00116-LMB-TCB Document 113-2 Filed 02/24/17 Page 2 of 2 PageID# 1326
40

Case 1:17-cv-00116-LMB-TCB Document 113-3 Filed 02/24/17 Page 1 of 2 PageID# 1327
EXHIBITC
26 Other Countries w/ Muslim Populations Over 90% (in green)
(Source www. en.wikipedia. org/wikillslam_by_country)
41

Case 1:17-cv-00116-LMB-TCB Document 113-3 Filed 02/24/17 Page 2 of 2 PageID# 1328

:Egypt
M Turkmenistan
11:: Jordan gMali El!aGambia
I I Kosovo
1~11 Senegal
=Ll Pakistan Uzbekistan •Libya
~Djibouti
Iii Saudi Arabia
C Palestinian Territories
• Algeria
5i!i Comoros :C Niger
llil Azerbaijan •Turkey
I I Mayotte
=•Morocco Tajikistan IZ: Western Sahara
I I Afghanistan
gTunisia •Maldives
I I Mauritania

73,800,000 4,830,000 6,397,000 15,667,704 1,669,000 1,584,000[661 14,584,931 178,000,000 26,833,000 6,325,000
853,000 25,493,000
4,298,000
40,400,000 785,000
19,502,214 8,795,000 74,660,000
197,000 32,381,000
7,006,000 528,000
29,047,100 11 '190,000
309,000 4,171,633
42

4.9 0.3 0.4 0.8 0.1 0.1 0.8 11.0 1.7 0.4 0.1 1.6
0.3
2.7 < 0.1 1.0 0.5 4.6 < 0.1 2.0 0.4 < 0.1 1.8 0.6 <0.1 0.2

Case 1:17-cv-00116-LMB-TCB Document 113-4 Filed 02/24/17 Page 1 of 4 PageID# 1329
EXHIBITD
1:17-CV-00480-CBA Petition in E.D. ofN.Y A.G. Eric Schneiderman. Doc 39-1 00.8-9,23
43

CasCe a1s:1e71-:c1v7--0c0v1-01064-L8M0-BC-oT~ .CBDoDcoucmuemnet n3t91-113-F4iledFi0le2d/0022/1/274/1F~ 7 ·P~ a9goef

2 of 4 PageID# 1330 33 PageiD #: 222

measures to keep radical Islamic terrorists out of the United States ... We don't want them here."5
19. The Executive Order on its face favors refugee applicants belonging to "minority religions" in the applicant's country of origin. President Trump has admitted that the purpose of this provision is to favor Christians over other persons of other religions.
20. During an interview on Christian Broadcast News on January 27, 2017, President Trump stated that Christian refugee applicants would receive priority: "[Christians] have 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."6
21. President Trump's close associates confirmed that the proposed ban on individuals from particular areas was simply a method for implementing President Trump's Muslim ban. On January 28, 2017, the day after the signing of the Executive Order, Rudolph Giuliani, a close advisor to President Trump, was asked whether the ban had anything to do with religion. Mr. Giuliani replied, "I'll tell you the whole history of it. So when [President Trump] first announced it, he said 'Muslim ban.' He called me up. He said, 'Put a commission together.

s Dan Merica, Trump Signs Executive Order to Keep Out "Radical Islamic Terrorists, CNN (Jan. 30, 20 17), http://www.cnn.com/20 17/0 1127/oolitics/trump-plans-to-sign-executive-action-on-refugees-extreme-vetting/.
6 Dan Brody, President Trump Says Persecuted Christians Will Be Given Priority as Refugees, CBS News, The Brody File (Jan. 27, 2017), http://wwwl.cbn.com/thebrodyfile/archive/2017/0l/27/brody-file-exclusivepresident-trump-says-persecuted-christians-will-be-given-prioritv-as-refugees.
-8-

CasCea1s:e171-:c1v7--0c0v1-10064-8L0M-CBB-~T~ CBOoDcuomcuemnte3n9t-1113F-41. ledF0il2e/d020/21/724/P1,~ 7 P. 1a0geof333ofP4aPgeaigDe#ID: #2213331
Show me the right way to do it legally.' .... And what we did was, we focused on, instead of religion, danger- the areas ofthe world that create danger for us."7
22. In addition to the Muslim ban, President Trump has proposed several other measures targeted specifically at Muslims.
23. During an interview on November 16, 2015, President Trump stated, "You're going to have to watch and study the mosques, because a lot of talk is going on at the mosques." When asked in the same interview whether he would consider shutting down mosques, he responded, "I would hate to do it, but it's something that you're going to have to strongly consider."8
24. On November 20,2015, during an interview, President Trump was asked whether he would create a database to track Muslims in the United States. He responded, "I would certainly implement that. Absolutely." When asked whether Muslims would be legally obligated to register with that database, he stated, "They have to be-they have to be."9
25. The First Amendment's Establishment Clause forbids the government from favoring or disfavoring particular religions.
26. Despite this prohibition, Defendants have repeatedly demonstrated through their actions and statements, see supra ~~ 9-24, their intent to discriminate against Muslims on the basis of religion.
7 Available at Amy B. Wang, Trump asked for a "Muslim Ban," Giuliani Says - and Ordered a Commission to do it "Legally," Wash. Post (Jan. 29, 2016), https://www.washingtonpost.com/news/thefixlw/20 17/01/29/trump-asked-for-a-must im-ban-giuliani-says-and-ordered-a-commission-to-do-itlegally/?utm term=.c6c40237e00d.
8 Trump: We Must Watch and Study Mosques, MSNBC (Nov. 16, 2015), http://www.msnbc.com/momingjoe/watch/trump-we-must-watch-and-study-mosgues-567563331864.
9 Vaughn Hillyard, Donald Trump's Plan for a Muslim Database Draws Comparison to Nazi Germany, NBC News (Nov. 20, 20 15), http://www.nbcnews.com/politics/20 16-election/trump-says-he-would-certainlyimplement-muslim-database-n466716.
-9-

Case 1:17-cv-00116-LMB-T~C'B Document 113-4 Filed 02/24/1~ 7 Page 4 of 4 PageID# 1332 Case 1:17-cv-00480-CB, Document 39-1 Filed 02/02/17 P, .: 24 of 33 PageiD #: 237
Petitioners moved the Court to clarify that its January 28, 2017 order is nationwide in scope and order the Respondents to enforce the stay ofremoval.
CLAIMS FOR RELIEF First Cause of Action
(Fifth Amendment-Equal Protection) 77. The NYAG realleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 78. The Due Process Clause of the Fifth Amendment prohibits the federal government from denying equal protection of the laws. 79. The Executive Order was motivated by animus and a desire to harm a particular group, as demonstrated by statements made by Defendants concerning their intent and their proposed applications of those provisions. 80. The terms and application of the Executive Order are arbitrary and cannot be sufficiently justified by federal interests. 81. Sections 3 and 5 of the Executive Order target individuals for discriminatory treatment based on their country of origin and/or religion, without lawful justification. 82. For example, Section 3 of the Executive Order suspends entry into the U.S. even of persons holding valid visas to live, work, and study in the U.S. The specific process for applying for each of these visas differs by category, but applicants are always rigorously screened-often by multiple agencies of the U.S. government-before a visa can be approved. The Petition in this case describes the procedures required by the Iraqi Special Immigrant Visa (SIV) program, and the extensive screening applied to Petitioner Hameed Khalid Darweesh between his application for an SN on or about October 1, 2014 and the visa issuance on January 20, 2017. See Petition ~~ 23-30.
-23-

Case 1:17-cv-00116-LMB-TCB Document 113-5 Filed 02/24/17 Page 1 of 1 PageID# 1333
EXHIBITE
Stock Photo by Mark J Sullivan I- NY AG Schneiderman, Rev AI Sharpton at NAN, MKL Jr. House of Justice Harlem, NY Jan 18, 2016
47

Case 1:17-cv-00116-LMB-TCB Document 113-6 Filed 02/24/17 Page 1 of 6 PageID# 1334
EXHIBITF
Griffin vs. Trump, Congress, Europe 2:17-CV-00036-JLQ Eastern District ofW.A.
48

Case

1:17-cv-00116c-aLsMeB2-:T~C.B.-:vD-o00c0u3m6-eJnLtQ113D-o6cuFmileendt

02/24/17 Page 2 1 Filrl/24/17

of

6

PageID#

1335

United States District Court
Eastern District of Washington

(In the space above enter the full name(s) ofthe plaint(ff{s).)

-against-

Case No.2:17-CV-00036-JLQ
(To be filled out by Clerk's Office only)

COMPLAINT

(In the space above enterthe.ful/name(s) ofthe defendant(..~). {(you cannot fit the names l~(all ofthe defendants in the space provided. pletNW write ··see attached" in the space ahove and attach an additional sheet o.fpaper with the full list ofnames. 11ze names listed in the above caption must be identical to those contained in Section 1. Do not include addresses here.)

Jury Demand? ~es DNo
RECEIVED
JAN 2 ~ 2017
CLERK, U.S. DISTRICT COURT
SPOKANE, WA

NOTICE
Federal Rule of Civil Procedure 5.2 addresses the privacy and security concerns resulting from public access to electronic court files. Under this rule, papers filed with the court should not contain: an individual's full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include on~v: the last four digits of a social security number; the year of an individual's birth; a minor's initials: and the last four digits of a financial account number.
If this is an employment discrimination claim or social security claim, please use a different fonn.
Plaintiff need not send exhibits, affidavits, grievance or witness statements, or any other materials to the Clerk's Office \Vith this complaint.
Page 1 of 8

Case 1:17-cv-00116-LMB-T.C~B Document 113-6 Filed 02/24/17 Page 3 of 6 PageID# 1336 Case 2:_ ·Cv-00036-JLQ Document 1 Filrl/24/17
III. VENUE
This court can hear cases arising out o.f the Eastern District qfll'ashington.
Under 28 U.S. C § I39I, this is the right court to.file your lawsuit it: (I) AII defendants live in
this state AND at least one c~fthe defendants lives in this district; OR (2) A substantial part oftlze events you are suing about happened in this di.\·trict; OR (3) A substantial part ofthe property
that you are suing about is located in this district; OR (4) You are suing the U.S. government or
a federal agency or official in their f~Oicial capacities and you live in this district. Explain why this district court is the properlocationto file your lawsuit.
Venue is appropriate in this Court because:

IV. STATEMENT OF CLAIM
Place(s) of occurrence:

State here briefly the FACTS that support your case. Describe how each defendant was personal~v involl•ed in the alleged wrongful actions.
FACTS:

What happened to you?

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Page4 ofS

Case 1:17-cv-00116-LMB-T~ CB Document 113-6 Filed 02/24/1~ 7 Page 4 of 6 PageID# 1337 Case 2: ..... -cv-00036-JLQ Document 1 File, 1/24/17
V. INJURIES ({you sustained injuries related to the events alleged above, describe them here.

VI. RELIEF

The relief I want the court to order is:

Money damages in the amount of: $ 'f'i1 TJfJLUcnJ {}J~ Rl\ bUl\).Ytjfl~ !"l\i~u·\ ~ru \W\lJ\

Other (explain):

Zfq=t X Z3

Page 7of8

Case 1:17-cv-00C1a1s6e-L2M:1B7--TQC-qB00D3o6c-JuLmQent D11o3cu-6meFnitle3d 02F/i2le4d/1~74/P1ag7e 5 of 6 PageID# 1338

1

2

3

UNITED STATES DISTRICT COURT

4

EASTERN DISTRICT OF WASHINGTON

5 In re:
6
7 JUAN PIERRE GRIFFIN
8
9
10

NO.2: 17-MC-00002 ORDER OPENING CIVIL CASE FILE DENYING IN FORMA PAUPERIS STATUS, AND CLOSING FILE

11

On January 24, 2017, the court received a new civil rights complaint (ECF No. 11)

12
from Juan Pierre Griffm, along with an application to proceed in forma pauperis (ECF

13
No. 12). Pursuant to the Order entered January 12,2017 (ECF No. 1), the documents

14 were filed in this miscellaneous case. The Clerk is DIRECTED to open a civil case and

15
directly assign it to the undersigned judicial officer. The Clerk shall lodge the Complaint

16 and applications to proceed in forma pauperis, nunc pro tunc as of January 24, 2017.

17
As an initial matter, the court notes Griffin did not comply with the Order

18
Requiring Court Approval Before Filing of Further Pro Se Actions in This District (ECF

19 No. 1). He did not present a "Petition Seeking Leave to File Pro Se Action" as outlined in

20 the Order and he did not present an Affidavit in proper legal form as directed. Griffin is

21
admonished to comply with this Order if he wishes to file further civil actions in this

22 district. Failure to comply with this court's Order is grounds for denial of leave to file a

23 complaint.

24
Notwithstanding the non-compliance, the court has considered the proposed

25
Complaint and finds it frivolous and malicious. The proposed Complaint repeats claims

26
previously dismissed regarding Griffin allegedly being the last solider at Fort Ord and

27
being due a promotion to four-star general. (ECF No. 11 at 4); see Griffin v. The

28
President ofthe United States ofAmerica #41 et al., No. 2:17-CV-00005-JLQ; Griffin v.

ORDER-I

Case 1:17-cv-0C01a1s6e-L2:M17B-<-TfwC..BQ00D3o6c-JuLmQentD1o1c3u-6meFnitle3d 0F2i/l2e4d/107~4P/a1g7e 6 of 6 PageID# 1339

1 Every European Union Country, et al., No. 2:17-CV-00008-JLQ. The proposed

2 Complaint expands this claim to now include President Trump. (ECF No. 11 at 2).

3 Repeating previously dismissed claims is frivolous and malicious. See Baize v. Austin,

4 2016 WL 4127803 at *2 (S.D. Cal. August 3, 2016); Cato v. U.S., 70 F.3d 1103, 1105 n.2

5 (9th Cir. 1995); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). There are no new

6 allegations in the proposed Complaint.

7

Because the court finds the proposed Complaint is frivolous and malicious, the

8 application to proceed in forma pauperis is DENIED. Based on these findings, the Clerk

9 is DIRECTED to CLOSE the civil case file. Griffin shall not file anything further in this
1 o civil case file.

11

Griffin is also reminded the court issued an Order to Show Cause on January 9,

12 2017, in the then twelve existing cases Griffin initiated. Griffin was directed to respond to

13 the Order to Show Cause no later than January 27,2017. To date, he has not responded to

14 the Order to Show Cause. Since the Order to Show Cause was issued, Griffm has filed or

15 attempted to file six additional complaints. Griffin is advised the court will consider all of

16 Griffin's filings, including those filed after the issuance of the Order to Show Cause, in

17 determining whether Griffm should be declared a vexatious litigant. Pending resolution

18 of the vexatious litigant status of Griffm, he shall file no further actions in this court,

19 without a prior application to and approval by the court, as set forth in the Order

2 o Requiring Court Approval Before Filing of Further Pro Se Actions in This District (ECF

21 No. 1) entered on January 12, 2017.

22

IT IS SO ORDERED. The Clerk is directed to enter this Order in the

2 3 miscellaneous case file, and in the newly opened civil case file. The Clerk is directed to

24 furnish copies ofthis Order to Mr. Griffm.

2 s

Dated January 24, 2017.

26

27

28

ORDER-2

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 1 of 35 PageID# 1340
EXHIBITG
Portions of the Pro-Se Intervenors APPLICATION FOR SUPERVISORY WRIT OF REVIEW
to the Louisiana's First Circuit No. 2016-KW1198
That proved;
1. The Forgery of a District Judges Signature by a Detective of the St. Tammany Sheriff's Office on his arrest Warrant
2. The Falsifying ofthe Court Transcripts in preceding, Louisiana vs. Molino No. 2016-561670 3. Gross Departure from Proper Judicial Proceedings 4. Violations of Due Process 5. Ineffective Counsel 6. Erroneous denial of Trial by Jury 7. Improper, Biased venue by Judge Hand and DA Montgomery 8. Politically motivated prosecution 9. Subornation of Perjury by Judge Hand and ADA Peters 10. District Attorneys lack of Jurisdiction 11. Clerk of Courts failure to subpoena 12. Excessive Bail I Fines 13. Obvious Reasonable doubt 14. Lack of authenticity of States evidence (Obvious fictitious/Altered pictures by STPSO/DA) 15. Denial of admission of Evidence by defense 16. Wrongfully Quashed subpoenaed witness's 17. Intimidating I threatening witness by ADA I Detectives 18. Admitted soliciting of victims
Pages 15-24,26 of No. 2016-KW1198 L.A. First Circuit of Appeals
54

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 2 of 35 PageID# 1341
lO: /2015-002884
STATE OF LOUISIANA
PARISH OF ST. TAMMANY 22ND JUDICIAL DISTRICT APPLICATION FOR ARREST WARRANT
STATE OF LOUISIANA VERSUS VINCENT MOLINO 4735 Pontchartrain Drive Slidell, LA, 70458 DOB: 07/01/1973
White Male

I, Detective Matthew Bauer, certify under oath that one VINCENT MOLINO
on or about 08/01/2015 did commit
I Count ofRSI4:67--THEFT-- (FELONY)
within this State and Parish, and the jurisdiction of the 22ND Judicial District
Court, contrary to the form of the statutes of the State of Louisiana in such case
made and provided, and against the peace and dignity of the same, in that the
following did occur:
On February 23, 2015, Detective Matt Bauer, assigned to the Criminal Investigations Division of the SL Tammany Parish Sherifrs Office, spoke with a complainant, Christopher Grieco, who owns the property at 4643 Pontchartrain Drive in Slidell, LA. Mr. Grieco's property, which is a vacant lot is located on US Highway II (Pontchartrain Drive) and is bordered by a bayou. On this date, Mr. Grieco reported the owner ofa neighboring lot, Vincent Molino, had taken a large amount of dirt, trees, bushes, and vegetation ofT his property, without his permission. Mr. Grieco provided the following details.
Around late July 2014 and early August 2014, Mr. Grieco spoke with Molino who offered to use his heavy equipment to knock down the trees, bushes, and high grass on Mr. Grieco's property, so that he could make it more presentable. At the time, Mr. Grieco wished to have this done, but informed Molino it was not necessary for him to do, because Mr. Grieco had access to heavy equipment and could perform the work himself. After Molino continued to insist on performing the work, Mr. Grieco agreed, but instructed him to not remove anything from his property. Molino was asked to only "knock down" the trees and bushes.
After Molino completed the work, Mr. Grieco found Molino had removed all the trees, bushes, grass, and vegetation from his property. In addition, Molino also removed approximately two feet of dirt from the elevation of the property. Mr. Grieco asked Molino to fill the property back to its original level, and Molino agreed to do so.
Because Mr. Grieco had been spending a lot of time out of state, he had not checked on the progress or status of his property. On February 14,2015, Mr. Grieco visited his property at 4643 Pontchartrain Drive and discovered Molino replaced the stolen soil and vegetation with large concrete blocks and trash. Furthermore, the elevation of Mr. Grieco's property was still noticeably beneath its original level.

Page I of3

Thursday, February 26, 2015 16:17:58

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 3 of 35 PageID# 1342

10: /2015-002884

Mr. Grieco provided Detective Bauer with photographs of the current condition of his property, which clearly showed the concrete blocks, trash, and lack of vegetation on the piece of

'

~0\CfD,\?

land. Detective Bauer also saw photographs of Mr. Grieco's property prior to Molino

performing any "work," which displayed the property with an abundance oftrees, bushes, and

other vegetation. Mr. Greico reported it would cost him approximately $2500.00 to remove the

trash from his property and have it filled back to its original level with the proper dirt/soil.

It should be noted, Molino was recently arrested for stealing another neighbors oyster shells which he later used to fill in his property (case #2014-011845). According to photographs, the statement·provided by Mr. Grieco, and Molino's recent history/activity, it was clear that Molino intentionally removed the dirt and vegetation from Mr. Grieco's property which he likely used to fill in his own property. Detective Bauer also had photographic evidence of Molino's
property/land increasing substantially since August 2014.

Based on the above information, Detective Bauer finds probable cause exists to charge Vincent Molino with violation ofLRS 14:67 Theft (Felony), relative to the theft of
land/dirt/plants from Mr. Grieco, and requests an arrest warrant be issued.

I hereby certify under oath the facts contained herein to be true and correct, under
penalties of perjury, so help me God.

Det. Matthew Bauer Affiant
THUS DONE AND PASSED on the_26_ _ day of _ _February_, _ _2015_ _.

Victim Information Name : Christopher Grieco Address: 773 Buck Run City : Pearl River State: LA Zip: 70452 Phone:

William Burris Judge, 22nd Judicial District Court
Judge, 22ND Judicial District

Page 2 of3

Thursday, February 26,2015 16:17:58

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 4 of 35 PageID# 1343
10: I 20 15-002884
STATE OF LOUISIANA
PARISH OF ST. TAMMANY 22ND JUDICIAL DISTRICT
ARREST WARRANT
State of Louisiana Versus VINCENT MOLINO 4735 Pontchartrain Drive Slidell, LA, 70458
DOB: 0710111973
White Male
TO ANY COMMISSIONED PEACE OFFICER:
WHEREAS, complaint has been made to me under oath and under penalty of perjury, by Detective Matthew Bauer charging one VINCENT MOLINO with
1 CountofRS14:67-THEFT-- (FELONY)
Committed on or about 08/01/2015. Now, therefore, you are hereby commanded, in the name of the State, to apprehend and arrest the said accused to be brought before our Court to answer the said complaint. You are further commanded to keep the said accused in safe custody pending a session of the Court, or until released according to law, and this shall be your warrant.
Given under my official signature, this __26__ day of _ _February_ _ ,
2015_ _.

Victim Information Name : Christopher Grieco Address : 773 Buck Run City : Pearl River State: LA Zip: 70452 Phone:
Page 3 of3

William Burris
Judge, 22ND Judicial District State of Louisiana
Thursday, February 26.2015 16:17:58

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 5 of 35 PageID# 1344
FORGERY OF JUDGE BURRIS SIGNATURE ON ARREST WARRANT

-~ William Burris Judge, 22nd Judicial District Court

William Burris
Judge, 22ND Judicial District State of Louisiana

Judge, 22ND Judicial District

Page 2 of Arrest Warrant

Page 3 of Arrest Warrant

A. When both signatures 135 are zoomed in and cropped at approx. 350 pixels wide from both scanned multipage PDF given in discovery, (emailed by former attorney Racheal Yazback and Given by digitally signed PDF by ADA Peters a year after arrest. You'll see that the 2 are lined up perfectly; ruling out the possibility by 95% of a stamp authorized my Judges Burris being used. 136 The figure of 95 percent was determined by the following Empirical Method;

135 Writ app. pp. 285-287 infra. 136 La. CCRP. Art. 162.2. Warrant issued upon electronic testimony E. Accompanying the electronic testimony
shall be an electronic facsimile of the search warrant. If the judge finds probable cause and approves the issuance of the warrant, he shall affix his electronic signature to the warrant and return it immediately to the applicant. La. RS 9:2603.1. Electronic agglications for all warrants; signatures: electronic judicial records. D. Any application used to attach a digital signature to any warrant or affidavit must have security procedures in place that insure the authenticity ofthe digital signature.

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 6 of 35 PageID# 1345
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B. The pixel resolution in increase to line it up by a fraction of a pixel or .2 degrees of rotation. The value of .2 degrees can be caused by the document being feed into the scanner.

2

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 7 of 35 PageID# 1346
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3

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 8 of 35 PageID# 1347
D. Assuming that a clerk authorized to stamp the judges signature will vary only by 5 degrees clock-wise and -5 degrees counter clock-wise resulting in a limit of nonalignment totaling 10 degrees of variations. A half of a degree in 10 degrees yields 20 possible variations of stamps

E. The mathematical formula for figuring out the probability of a Clerk lining up 2

stamps perfectly is;

A representing one possible stamp angle and B representing another,
given A~ B whereas A I (A x B) = 11 B. To help visualize this, suppose that you

have two dice that have A sides and B sides each. If we

roll these two dice

then the probability of rolling the same number of both dice is A I (Ax B)= 11 B.
Inputting 20 in the sides of dice yields 20 I (20 x 20) = 1 I 20. This means

there is only a 5% chance that an authorized clerk could have stamped a judges

signature twice and have it line up perfectly. A visual graph ofthis probability is

depicted

4

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 9 of 35 PageID# 1348

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

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

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

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

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

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

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

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

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

1,11 2,11 3,11 4,11 5,11 6,11 7,11 8,11 9,11 10,11 11,11 12,11 13,11 14,11 15,11 16,11 17,11 18,11 19,11 20,11 1,12 2,12 3,12 4,12 5,12 6,12 7,12 8,12 9,12 10,12 11,12 12,12 13,12 14,12 15,12 16,12 17,12 18,12 19,12 20,12 .-,\

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

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

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

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

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

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

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

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20 possibilities out of 400 attempts = 1/20 =5°/o chance

F. Issue 2 on forgery of signature - repetitive title

William Burris
Judge, 22nd Judicial District Court
Judge, 22ND Judicial District
Page 2 of Arrest Warrant
It appears that Detective Bauer forgot to exclude one of the 2 titles of 'judge/district" when the signature was copied and pasted by a low level graphics program such as Microsoft paint.
5

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 10 of 35 PageID# 1349

G. Issue 3- Careless mistake overlooked by multiple partiers

!ft TO ANY COMMISSIONED PEACE OFFICER: WHEREAS, complaint has been made to me under oath and under penalty of

~
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:1 perjury, by Detective Matthew Bauer charging one VINCENT MOLINO with [i;

~ J Collllt ofRSI4:67-THEFT-- (FBLONY)

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f Committed on or about 0810112015.

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~k~ Now, therefore, you are hereby commanded, in the name of the State, to apprehend It

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y;

This Warrant was made for the arrest date ofMarch 1st, 2015. Detective Bauer is suggesting that not only did he overlook this obvious error on the warrant, but whoever signed the Judge's signature also overlooked it

H. Issue 4 - graphic not overlapping signature line

William Burris
~l._J~u_dg_e~'~2~2~nd_Ju_d_ic_i_ai_D~is_tr_ic......._ll--.........._.J_.Ju..!d..-g--,e.~,~)l2..,2...N_...D.,o~·_.J,. ,u___~_. d~--i~c~_i..a....l....D,...._:l
Whether it is handwritten or stamped, the graphic does not overlap the signature line. This further suggests that an image square containing the signature was copied and pasted

6

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 11 of 35 PageID# 1350

I. Issue 5 - The last issue is the signature itself When matched up to other court documents. Below are 8 signatures from Dec of 2012 to Oct of2016 in order;

April 22, 2015 Oct 6, 2014 Aug 5, 2015 Oct 13,2016
Nov 8, 2012 Dec 18,2012 Dec 13,2015 April 22, 2015

Docket #560938 137 Docket #553233 138 Docket #560938 139 Docket #529796 140
Docket #72-59342 141 Docket #72-59342 142 Docket #560938 143 Docket #560938 144

137 Writ app. pp. 288 infra. 138 Writ app. pp. 289 infra. 139 Writ app. pp. 290 infra. 140 Writ app. pp. 291 infra. 141 Writ app. pp. 292 infra. 142 Writ app. pp. 293 infra. 143 Writ app. pp. 294 infra. 144 Writ app. pp. 295 infra.
7

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 12 of 35 PageID# 1351
~
indicated by disclosure obtaaned by the foregoing,so~r!suwb~s~e~u~nur~~bmQW:~====~
(
SS3233 STB Jeremy J Wise
Signed this--.£.day of August, 2015 in Covington, Louisiana.
8

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 13 of 35 PageID# 1352 201_.
--------------~
JUDGE SERVICE
I,&hannlAil&lMWI~ ' do hereby certify that a copy ofthe foregoing
CERTIFICAJE OF SERVICE
seventy.two (72) hours prior to the hearing on these discovery
Covington, Louisiana, this _ll_:?uaHTt~~~~~:::=-:"20f;J~-~
560938 STE Jeffery Valentine
\....nmmw t"roceoure.
560938 STE !effery Valentine
9

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 14 of 35 PageID# 1353
With these fmal 3 traits in the arrest warrant, the probability of detective Bauer forging Judge Burris signature moves from 95% to near 100%. This blatantly false signature and affidavit incriminates every official with a bar license whose viewed and accepted it as tangible evidence is guilty ofthe suborning perjury. This applies to any lawyer who presents either testimony or an affidavit, or both, either to a judge or to a jury, which the attorney knows to be materially false, and not factual. This include but is not limited to District Attorney Warren Montgomery, ADA Harold Bartholomew, ADA Nicholas Blake Peters, ADA Darrel Sims, ADA I chief of criminal trials- Julius Collin Sims. 145
145 La. R.S. 14§126. Inconsistent statements: false swearing. It shall constitute false swearing whenever any
person, having made a statement under sanction ofan oath, or an equivalent affirmation, required by law, shall thereafter swear or affirm in a manner materially contradictory ofor inconsistent with his former sworn or affirmed statement. It shall not be necessaryfor the prosecution, in such case, to show which ofthe contradictory or inconsistent statements was false; but it shall be an affirmative defense that at the time he made them, the accused honestly believed both statements to be true.
18 U.S. Code§ 505- Seals of courts: signatures of judges or court officers Whoeverforges the signature of anyjudge, register, or other officer ofany court ofthe United States, or ofany Te"itory thereof, orforges or counterfoits the seal ofany such court, or knowingly concurs in using any suchforged or counterfeit signature or seal, for the purpose ofauthenticating any proceeding or document, or tenders in evidence any such proceeding or document with a false or counterfeit signature ofany such judge, register, or other officer, or a false or counterfeit seal ofthe court, subscribed or attached thereto, knowing such signature or seal to befalse or counterfoit, shall befined under this title or imprisoned not more than five years, or both.(June 25, 1948, ch. 645, 62 Stat. 714; Pub. L. 103-322, title XXXIII,§ 330016(1)(K), Sept. 13, 1994, 108 Stat. 2147.)
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CONCLUSION
None of the claims in this Writ can be considered "harmless errors." Only "reversible errors" are stated. This gross misconduct can in no way be misconstrued as morally just "Judicial Activism I legislating from the bench", French Napoleonic or any other pretext or Jurisprudence. Once competed, this Writ will be irrefutable proofthat the some of the Judges and DA's office of Warren Montgomery have turned the 22nd JDC, by defmition into a corrupt "Kangaroo court" in violation of Federal Racketeering laws. 148 This Writ will also serve as an official criminal complaint and demand for the United States Department of Justice to expand the criminal investigation and prosecution of the previous DA, Walter Reed, to include the current DA, Warren Montgomery and indict the aforementioned by grand jury. Ad Hoc judge Carole Gillio, Judge Reggie Badueax and Judge A.J. Hand have also violated their oaths to the Constitution of the United States and are guilty of Treason. 149 The applicant/defendant cannot make a viable presentation of appealable trial court patent errors without the repairing of the injured (falsified) records and transcript. St Tammany Tax dollars from the 3 properties I own in this parish have gone towards the criminal racketeering activity to the 22JDC and STPSO to fabricate evidence, charges, extort and deny my life liberty and the pursuit of happiness under color of law. That is why I do not recognize any ruling from the Judge Hand nor do I recognize his orders to law enforcement about this case.
148 18 U.S.C.A. Sec.1961(4). Racketeer Influenced and Corrupt Organizations "enterprise" includes any individual, partnership, corporation, association, or other legal entity, and any union or group ofindividuals associated in fact although not a legal entity;
U.S. vs. Chief Raymond Casamayor Jr, 837 F.2d 1509 (11th Cir. 1988) RICO case involving jury convictions ofthree members ofthe Key West Police Department, On appeal, defendants raised issues concerning: (1) severance; (2) sufficiency ofevidence; (3) the Jencks act; (4) evidentiary rulings; (5) jury instructions; (6) jury misconduct; (7) prosecutorial misconduct; and (8) ineffective assistance ofcounsel. Concluding there was no error in denying a severance, that sufficient evidence supports the convictions, and that the district court committed no reversible error, we affirm. The superseding indictment upon which defendants were convicted alleged varying degrees ofinvolvement with the Key West Police Department.
149 "Anyjudge who has acted in violation ofthe Constitution is engaged in an act or acts oftreason. Ifa judge
does notfully comply with the Constitution, then his orders are void, In re Sawyer, 124 U.S. 200 (1888), he/she is withoutjurisdiction, and he/she has engaged in an act or acts oftreason. Whenever a judge acts where he/she does not havejurisdiction to act, the judge is engaged in an act or acts oftreason." U.S. v. Will, 449 U.S. 200,
216, 101 S.Ct. 471,66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257
(1821)
12

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Case 1:17-cv-00480 ~ument 1 Filed 01/28/17 Page 1 ~ PageiD #: 1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI,
on behalf of themselves and others similarly situated,
Petitioners.
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY ("DHS"); U.S. CUSTOMS AND BORDER PROTECTION ("CBP"); JOHN K.ELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and JAMES T. MADDEN, New York Field Director, CBP,
Resnondents.

Case No. -------------------
Date: January 28, 2017

PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 17 of 35 PageID# 1356
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INTRODUCTION Petitioners Hameed Khalid Darweesh, an Iraqi husband and father of three, and Haider Sameer Abdulkhaleq Alshawi, 1 an Iraqi husband and father, landed at John F. Kennedy International Airport ("JFK Airport") on the evening of January 27, 2017. Petitioner Darweesh was granted a Special hntnigrant Visa ("SlY") on January 20, 2017 as a result of his service to the United States as an interpreter, engineer and contractor. Petitioner Alshawi was granted a Follow to Join Visa on January 11, 2017 to rejoin his wife and son, who were granted refugee status due to their family's association with the United States military. After conducting standard procedures of adtninistrative processing and security checks, the federal government has deen1ed both Petitioners not to pose threats to the United States. Despite these findings and Petitioners' valid entry documents, U.S. Customs and Border Protection ("CBP") blocked both Petitioners frotn exiting JFK Airport and detained Petitioners therein. No magistrate has detennined that there is sufficient justification for the continued detention of either Petitioner. Instead, CBP is holding Petitioners at JFK Airport solely pursuant to an executive order issued on January 27, 2017. Because the executive order is unlawful as applied to Petitioners, their continued detention based solely on the executive order violates their Fifth Alnendtnent procedural and substantive due process rights, and is ultra vires the immigration statutes. Further, Petitioners' continued unlawful detention is part of a widespread pattern applied to many refugees and arriving aliens detained after the issuance of the January 27, 2017 executive order. Therefore, on behalf ofthemselves and
1 There are multiple English spellings of Mr. Alshawi's name. 2

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 18 of 35 PageID# 1357
Case 1:17-cv-00480 ~Jment 1 Filed 01/28/17 Page 3 ~ PageiD #: 3
all others sin1ilarly situated, Petitioners respectfully apply to this Court for a writ of habeas corpus to remedy their unlawful detention by Respondents, and for declaratory and injunctive relief to prevent such banns from recurring.
JURISDICTION AND VENUE 1. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1361,2241,2243, and the Habeas Corpus Suspension Clause of the U.S. Constitution. This court has further remedial authority pursuant to the Declaratory Judgtnent Act, 28 U.S.C. § 2201 el seq. 2. Venue properly lies within the Eastern District of New York because a substantial part of the events or omissions giving rise to this action occurred in the District. 28 U.S.C. § 1391(b). 3. No petition for habeas corpus has previously been filed in any court to review either of Petitioners' cases.
PARTIES 4. Hameed Khalid Darweesh, natned Petitioner, is a citizen of Iraq and recipient of an Iraqi Special Immigrant Visa (SIV). As an interpreter, electrical engineer and contractor, Mr. Darweesh performed valuable work on behalf of the U.S. government in Iraq from roughly 2003 to 2013. Despite being issued a valid visa on January 20, 20 17 to relocate to the United States, Mr. Darweesh is presently detained at JFK Airport. As of the filing of this complaint, the sole basis for Defendants' continued custody of Mr. Darweesh is the January 27, 2017 executive order issued by President Donald J. Trump.
3

Case 1:17-cv-00116-LMB-TCB Case 1:17-cv-00480

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1358

5. Haider Sameer Abdulkhaleq Alshawi, nan1ed Petitioner, is a citizen of Iraq and recipient ofa Follow to Join (FTJ) Visa. His wife and child are lawful permanent residents residing in Houston, Texas. Despite being issued valid travel documentation on January 11, 2017, to relocate to the United States, Mr. Alshawi is presently detained at JFK Airport. As ofthe filing of this complaint, the sole basis for Defendants' continued custody of Mr. Alshawi is the January 27, 2017 executive order issued by President Donald J. Trun1p.
6. The U.S. Department ofHomeland Security ("DHS") is a cabinet department ofthe United States federal government with the primary mission of securing the United States.
7. U.S. Custotns and Border Protection ("CBP") is an agency within DHS with the primary mission of detecting and preventing the unlawful entry of persons and goods into the United States.
8. Respondent John Kelly is the Secretary of DHS. Secretary Kelly has immediate custody of Petitioners and other tnembers of the proposed class. He is sued in his official capacity.
9. Respondent Kevin K. McAleenan is the Acting Commissioner of CBP. Acting Commissioner McAleenan has immediate custody of Petitioners and other members of the proposed class. He is sued in his official capacity.
10. Respondent James T. Madden is the Director ofthe New York Field Office ofCBP, which has immediate custody of Petitioners and other members of the proposed class. He is sued in his official capacity.
11. Respondent Donald Trutnp is the President of the United States. He is sued in his official capacity.

4

Case 1:17-cv-00116-LMB-TCB Case 1:17-cv-00480

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1359

STATEMENT OF FACTS
President Trump's January 27,2017 Executive Order
12. On January 20,2017, Donald Trump was inaugurated as the forty-fifth President of the United States.
13. One week later, on January 27, President Trump signed an executive order entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States," which is attached hereto as Exhibit A and is hereinafter referred to as the "EO."
14. Citing the threat of terrorism committed by foreign nationals, the EO directs a variety of changes to the n1anner and extent to which non-citizens tnay seek and obtain adtnission to the United States, particularly (although not exclusively) as refugees. Among other things, the EO imposes a 120-day tnoratorium on the refugee resettlement program as a whole; proclahns that "that the entry ofnationals of Syria as refugees is detrimental to the interests ofthe United States," and therefore "suspend[s]" indefinitely their entry to the country; sitnilarly proclaims that "the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests" of the country.
15. Most relevant to the instant action is Section 3(c) of the EO, in which President Trump proclaims "that the imtnigrant and nonimmigrant entry into the United States ofaliens from countries referred to in section 217(a)(l2) of the INA, 8 U.S.C. 1187(a)(l2), would be detritnental to the interests of the United States," and that he is therefore "suspend[ing] entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date ofthis order," with narrow exceptions not relevant here.

5

Case 1:17-cv-00116-LMB-TCB Document 113-7 Filed 02/24/17 Page 21 of 35 PageID# 1360
Case 1:17-cv-00480 ~ument 1 Filed 01/28/17 Page 6 c~ PageiD #: 6
16. There arc seven countries that fit the criteria in 8 U.S.C. § ll87(a)(l2): Iraq, Iran, Libya, Son1alia, Sudan, Syria, and Yemen. According to the tcnns of the EO, therefore, the "entry into the United States" ofnon-citizens from those countries is "suspended" from 90 days frmn the date of the EO. Petitioner Hameed Khalid Darweesh
17. Hameed Khalid Datweesh is a 53-year-old citizen of Iraq, tnarried with three children (twenty years, fifteen years, and seven years of age).
18. Mr. Darweesh was trained and worked as an electrical engineer in Iraq. Between March 20, 2003 and September 30, 2013, he was contracted by the U.S. government to work in a variety of positions that placed him in substantial risk of being targeted, attacked and killed by anti-American militias and insurgents.
19. Mr. Darweesh's services included: working as an interpreter for the U.S. Army 101st Airborne in Baghdad and Mosul from April 1, 2003 to January 15, 2004; working as an interpreter for the 9lst Engineering Unit at the Baghdad Airport frmn January 20, 2004 to August 4, 2004; working as a Project Engineer for the U.S. Governtnent Projects Contracting Office Oil sector of North Iraq from December 5, 2005 to Decetnber 1, 2006; and, working for Vessar contractors of the U.S. governtnent from 2006 to 2011.
20. Mr. Datweesh was directly targeted twice for his association with the U.S. Armed Forces. While working at the Baghdad Airport between 2004 and 2005, the Baghdad Police entered his house, claiming they were searching for a terrorist. The Baghdad Police are widely known to be closely affiliated with anti-American militias. Shortly after this incident, two of Mr.
6

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Darweesh's colleagues were killed as soon as they arrived at work. As a result of these attacks, Mr. Darweesh feared for his safety and decided to leave Baghdad for Kirkuk.
2l. In the second instance, in July 2009, Mr. Darweesh was stopped at a market in Kirkuk where be was informed by a local shopkeeper that men were driving around in a BMW asking for him by name and the location of his house. These men returned a second time the following week, and Mr. Darweesh bad strong reasons to suspect that the men searching for hhn were terrorists. As a result, Mr. Darweesh and his fan1ily were forced to flee to a different area of Iraq, Erbil.
22. Based on these threats and his over ten years of service to the U.S. government, Mr. Darweesh applied for an Iraqi Speciallnunigrant Visa (SlY) status on or around October 1, 2014.
23. Congress created the Iraqi and Afghan Special Immigrant Visa (SlY) progratns to provide safety and refuge in the United States for Iraqis and Afghans who face or have faced serious threats on account oftheir faithful and valuable service to the United States. The progran1s were established pursuant to the Refugee Crisis in Iraq Act of2007, 8 U.S.C. § 1157 note at 124149 and the Afghan Allies Protection Act of2008, 8 U.S.C. § 1101 note at 601-02.
24. The first step in pursuing a SlY is obtaining Chief of Mission (COM) Approval from the Etnbassy. The Chief of Mission determines whether the applicant has "provided faithful and valuable service to the United States" and "bas experienced or is experiencing a serious threat" as a "consequence" of that service.
25. After obtaining COM Approval, a SlY Applicant files the Form 1-360 petition to USCIS to apply for an SlY. Once the petition is approved, the applicant submits a DS-260 visa
7

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application, along with accompanying docun1ents, to the National Visa Center. After the DS-260 is processed, the applicant undergoes an interview at a U.S. consulate or embassy.
26. After the interview, SIV applications go into administrative processing during which the U.S. government conducts various security checks as \veil as a medical examination. Once an applicant is cleared, they are issued a SlY to travel to the United States.
27. Several weeks after the applicant enters the United States, the applicant receives a green card in the mail and can naturalize five years later.
28. Mr. Darweesh received COM Approval for the visa on January 26,2015, in a signed staten1ent from Lena Levitt, Refugee Coordinator of the Designee of the Chief of Mission, noting that Mr. Darweesh had provided ''faithful and valuable service to the United States Government."
29. Despite receiving COM approval in January 2015, it took over two years for Mr. Darweesh's visa and visas for his family to be processed. After petitioning for a SIV through the U.S. Citizenship and In11nigration Services, which was approved conditionally on March 25, 2015, Mr. Darweesh appeared for an in-person interview at the U.S. Embassy in Baghdad on April 12, 2016 and went through administrative processing, including security background checks as well as medical exams.
30. Five Special lmtnigrant Visas were issued to Mr. Darweesh and his family on January 20, 2017, and they received then1 by DHL on January 25, 2017. Because ofthe sensitive and dangerous nature of Mr. Darweesh's situation, the family immediately boarded a flight from Erbil to New York City~ via Istanbul, and arrived in the United States on January 27,2017, around 6:00PM EST.
8

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31. Mr. Darweesh and his family were expecting to travel on to Charlotte, North Carolina, where they were to receive refugee benefits. However, after de-planing in John F. Kennedy Airport in Queens, New York, Mr. Darweesh was held by U.S. Custmns and Border Protection (CBP) and remains in their custody.
32. Mr. Darweeh 's attorney was present at the Arrivals section of Tenninal 1 but did not enter the CBP area. Mr. Darweesh and his fan1ily waited to be processed by CBP for about an ' hour. Approximately one hour later, Mr. Darweesh hin1self was moved into "secondary screening." The family waited for over an hour before a CBP officer and Mr. Darweesh etnerged to return passports for every member of Mr. Darweesh's family except for Mr. Darweesh himself. Mr. Darweesh was then taken back into secondary screening.
33. At approxilnatcly 11 :30pm, two CBP officers, upon information and belief, Officer Scott Maurel and Officer Ray Sinacola, requested that the fatnily return to the CBP-controlled security zone for additional questioning of Mr. Darweesh's wife. CBP refused to conduct the questioning of Mrs. Darweesh in the Arrivals area despite requests of counsel. When asked by counsel, the officers confirmed that they were making a request, not giving an order at that time. Through counsel, the family declined the request and left the airport.
34. Mr. Darweesh is not being pennitted to meet with his attorneys who are present at JFK and have n1ade multiple attetnpts to meet with hin1.
35. When Mr. Darweesh's attorneys approached CBP requesting to speak with Mr. Darweesh, CBP indicated that they were not the ones to talk to about seeing their client. When the attorneys asked "Who is the person to talk to?" the CBP agents responded, "Mr. President. Call Mr. Trutnp."
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36. Upon knowledge and belief, Mr. Darweesh ren1ains in the custody of CBP at JFK Airport.
37. Upon knowledge and belief, Mr. Darweesh is not being permitted to apply for asylum or other forms of protection from removal.
38. Upon knowledge and belief, Mr. Darweesh is at hruninent risk of being returned to Iraq against his will, and despite the grave danger he faces there.
Petitioner Haider Sameer Abdulkhaleq Alshawi
39. Haider Satneer Abdulkhaleq Alshawi is an Iraqi national born on April29, 1983 in Baghdad, Iraq. He studied accounting at Baghdad University, graduating in 2006.
40. Mr. Alshawi possesses the requisite documentation to enter the U.S.: an immigrant visa in his passport.
41. Upon information and belief, Mr. Alshawi was deemed adtnissible for a Follow to Join (FTJ) visa category F2A (joining spouse and child) awarded by the U.S. Departtnent of State on January 11, 2017. See generally 8 U.S.C. § 1157(c)(2)(A); 8 C.F.R. § 207.7(a) (spouse or child of refugee "shall be granted refugee status if accompanying or following-to-join the principal alien"). Upon infonnation and belief, the visa was authorized by USCIS and the State Departtnent, documenting its approval of Mr. Alshawi's adtnissibility to the United States as an FTJ Visa recipient. Upon infonnation and belief, The U.S. Embassy in Stockholm also determined that Mr. Alshawi does not pose a security threat to the United States, and, as a result, is admissible to the United States.

10

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42. The FTJ visa was granted to reunite Mr. Alshawi with his wife, Duniyya Alshawi, and their seven-year-old son in the United States. Mr. Alshawi and his wife have been married since 2008.
43. Ms. Alshawi worked for Falcon Security Group, a U.S. contractor, from 2006 to 2007 as an accountant. Upon infom1ation and belief, her brother also worked for Falcon Security Group in Human Resources. Mr. Alshawi heard through neighbors in the family's con1munity in Baghdad that, due to the fan1ily's association with the U.S. military, insurgents thought that they were collaborators.
44. In 2010, insurgents attempted to kidnap Ms. Alshawi's brother. A month later, an lED placed on Mr. Alshawi's sister-in-law's car detonated, killing her husband and severely injuring her and her daughter. Fearing for their safety, Mr. Alshawi and his wife n1oved from Baghdad to Erbil, Iraq.
45. Ms. Alshawi and her son applied for refugee status in January 2011. Upon information and belief, in January of2014 Ms. Alshawi and her son were approved to travel to Houston through the Priority 2-Direct Access Program (P2-DAP). Upon information and belief, Ms. Alshawi and her son have since adjusted their statuses to that of lawful permanent residents and now live in Houston, Texas. Ms. Alshawi subsequently filed for a FTJ visa for her husband. On October 9, 2014, USCIS approved Ms. Alshawi's 1-730 petition for Mr. Alshawi's entry. On January 11,2017, Mr. Alshawi obtained a U.S. Visa Foil Type ZZ (Visa 93) with a notation in his passport that the foil was prepared at DHS request.

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46. Mr. Alshawi's FTJ visa grants him permission to enter the United States. Upon information and belief, pursuant to this visa Mr. Alshawi traveled from Stockholm, Sweden on January 27, 2017 (local tin1e) to in1migrate to the United States.
47. Additionally, Ms. Alshawi filed an 1-130 application with USC1S to petition for Mr. Alshawi to enter as an alien relative. Mr. Alshawi has a priority date of December 18,2015. Currently, the visa bulletin for February indicates that visas are being processed with final action dates up to Aprill5, 2015. Mr. Alshawi thus soon will be eligible for visa processing on this 1130 application in addition to his existing FTJ Visa.
48. Upon information and belief, Mr. Alshawi arrived in at John F. Kennedy airport in New York City on January 27, 2017 at approximately 8:22PM EST on Norwegian Air flight DY 7005.
49. Upon arrival at the gate, Mr. Alshawi was blocked on the aircraft by CBP. A Norwegian Airline attendant confirn1ed that he was being held by CBP.
50. Mr. Alshawi is not being pennitted to n1eet with his attorneys who are present at JFK and have made multiple attempts to meet with hitn.
51. When Mr. Alshawi's attorneys approached CBP requesting to speak with Mr. Alshawi, CBP indicated that they were not the ones to talk to about seeing their client. When the attorneys asked "Who is the person to talk to?" the CBP agents responded, "Mr. President. Call Mr. Trun1p."
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52. Upon information and belief, Mr. Alshawi remains in the custody of CBP at JFK Airport.
53. Upon information and belief, Mr. Alshawi is not being permitted to apply for asylum or other forms of protection from removal.
54. Upon information and belief, Mr. Alshawi is at itnminent risk of being returned to Iraq against his will, despite the grave danger he faces there.
REPRESENTATIVE HABEAS ACTION ALLEGATIONS
55. In addition to Petitioners Darweesh and Alshawi. there are numerous other individuals detained nationwide who are either refugees adn1itted via USRAP or visa holders from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. Each of these similarly situated individuals has been detained and questioned by CBP officials, denied entry to the United States, and subject to the threat of return to the country fr01n which their travel originated, regardless of their presentation of valid entry docun1ents, their status in the prior country, and possible claims qualifying then1 for protection under 8 USC ll0l(a)(42) and 8 U.S.C. § 1225(b)(l)(A)(ii).
56. Each of these similarly situated individuals is entitled to bring a petition for a writ of habeas corpus or, in the alternative a con1plaint for declaratory and injunctive relief, to prohibit the policy, pattern, and practice of Respondents detaining class tnembers and prohibiting class members from entering the United States when they arrive at U.S. borders with valid entry documents. As set out in further detail in the concurrently filed Motion for Class Certification, these similarly situated individuals satisfy the nutuerosity, typicality, comtnonality, and
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adequacy of representation requirements established by United States ex rei. Sero v. Preiser, 506 F.2d 1115, 1125-26 (2d Cir. 1974) and Fed. R. Civ. P. 23, and respectfully n1ove this Court for an order certifying a representative class of Petitioners consisting of all individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Adtnissions Program, holders of valid in1migrant and non-inu11igrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States, but who have been or will be denied entry to the United States on the basis of the January 27, 2017 Executive Order.
CAUSES OF ACTION COUNT ONE
FIFTH AMENDMENT- PROCEDURAL DUE PROCESS DENIAL OF RIGHT TO APPLY FOR ASYLUM
57. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
58. Procedural due process requires that the government be constrained before it acts in a way that deprives individuals of liberty interests protected under the Due Process Clause of the Fifth Atnendn1ent.
59. The United States government is obligated by United States and international law to hear the asylum claims of noncitizens presenting themselves at United States borders and ports of entry. The Immigration and Nationality Act provides that "[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
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apply for asylum in accordance with this section or, where applicable, section 235(b)." 8 U.S.C. § 1158(a)(1); see also id. § 1225(b)(l)(A)(ii).
60. Consistent with these United States statutory and international law obligations, individuals arriving at United States ports of entry must afforded an opportunity to apply for asylum or other fonns of hutnanitarian protection and be promptly received and processed by United States authorities.
61. Having presented thetuselves at a United States port ofentry, Petitioners are entitled to apply for asylum and to be received and processed by United States authorities.
62. Respondents' actions in denying Petitioners the opportunity to apply for asylum, taken pursuant to the EO, violate the procedural due process rights guaranteed by the Fourteenth Amendment.
COUNT TWO FIFTH AMENDMENT- PROCEDURAL DUE PROCESS DENIAL OF RIGHT TO WITHHOLDING/CAT PROTECTION 63. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 64. Under United States law as well as hun1an rights conventions, the United States may not return ("refouf') a noncitizen to a country where she may face torture or persecution. See 8 U.S.C. § 1231(b); United Nations Convention Against Torture ("CAT"), implemented in the Foreign Affairs Refonn and RestrucTturing Act of 1998 ("FARRA"), Pub. L. No. 105-277, div.
G, Title XXII, § 2242, 112 Stat. 268 I, 2681-822 (1998) (codified as Note to 8 U.S.C. § 1231).
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65. Respondents' actions in seeking to return Petitioners to Iraq, taken pursuant to the EO, deprive Petitioners of their rights under 8 U.S.C. § 1231(b) and the Convention Against Torture without due process of law.
COUNT THREE THE IMMIGRATION AND NATIONALITY ACT, THE CONVENTION AGAINST TORTURE, THE FOREIGN AFFAIRS REFORM AND RESTRUCTURING ACT OF
1998, IMPLEMENTING REGULATIONS
66. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
67. The Immigration and Nationality Act and impletnenting regulations, including 8 U.S.C. § 1225(b)(1) (expedited ren1oval), 8 C.F.R. §§ 235.3(b)(4), 208.30, and 1003.42; 8 U.S.C. § 1158 (asylum), and 8 U.S.C. § 1231(b)(3) (withholding of retnoval), and the United Nations Convention Against Torture ("CAT"), implemented in the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA"), Pub.L. No. 105-277, div. G, Title XXII,§ 2242, 112 Stat. 2681, 2681-822 (1998) (codified at 8 U.S.C. § 1231 note), entitle Petitioners to an opportunity to apply for asylum, withholding of removal, and CAT relief. These provisions also entitle Petitioners to a grant of withholding of removal and CAT relief upon a showing that they meet the applicable legal standards. Respondents' actions in seeking to return Petitioners to Iraq, taken pursuant to the EO, deprive Petitioners of their statutory and regulatory rights.
COUNT FOUR FIFTH AMENDMENT- EQUAL PROTECTION
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68. Petitioners repeat and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
69. The EO discriminates against Petitioners on the basis of their country of origin, and without sufficient justification, and therefore violates the equal protection component of the Due Process Clause ofthe Fifth Amendtnent.
70. Additionally, the EO was substantially motivated by animus toward-and has a disparate effect on-Muslims, which also violates the equal protection component of the Due Process Clause of the Fifth Amendment.
COUNT FIVE ADMINISTRATIVE PROCEDURE ACT 71. Petitioners repeat and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 72. The INA forbids discrimination in issuance of visas based on a person's race, nationality, place of birth~ or place ofresidence. 8 U.S.C. § 1152(a)(1)(A). 73. Respondents' detention and mistreatment of Petitioners and the members of the proposed class pursuant to the January 27 EO, as set forth above, is not authorized by the INA. 74. Respondents' actions in detaining and mistreating Petitioners and other tnembers of the proposed class as set forth above were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or illllnunity; in excess of statutory jurisdiction, authority, or lin1itations, or short of statutory right; and without observance of procedure required by law, in violation of the Adtninistrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D).

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PRAYER FOR RELIEF WHEREFORE, Petitioners and other members of the proposed class pray that this Court grant the following relief: ( 1) Issue a Writ ofHabeas Corpus requiring Respondents to release Petitioners and other members of the proposed class forthwith; (2) Issue an injunction ordering Respondents not to detain any individual solely on the basis of the EO; (3) Enter a judgn1ent declaring that Respondents' detention of Petitioners and other members of the proposed class is and will be unauthorized by statute and contrary to law; (4) Award Petitioners and other metnbers of the proposed class reasonable costs and attorney's fees; and (5) Grant any other and further relief that this Court may deem fit and proper.

DATED: January 28,2017 Brooklyn, New York

Respectfully submitted,
Is/ Michael J. Wishnie Michael J. Wishnie (MW 1952) Elora Mukhetjee Amit Jain, Law Student Intern Natalia Nazarewicz, Law Student Intern My K.hanh Ngo, Law Student Intern Yusuf Saei, Law Student Intern
18

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Rachel Wilf, Law Student Intern The Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520-9090 Phone: (203) 432-4800 Fax: (203) 432-1426 michael. wishnie@yale.edu
Rebecca Heller Mark Doss Julie Kornfeld International Refugee Assistance Project Urban Justice Center 40 Rector St., 9th Floor New York, NY 10006 Phone: (646) 704-3922
Karen C. Tumlint Nicholas Espiritut Melissa S. Keaneyt Esther Sungt Nationalin1migration Law Center 3435 Wilshire Boulevard, Suite 1600 Los Angeles, CA 90010 Phone: (213) 639-3900 Jonathan E. Polonsky
Justin Cox National Immigration Law Center 1989 College Ave. NE Atlanta, GA 30317 Phone: (678) 404-9119
Omar C. Jadwat Lee Gelernt Cecillia D. Wang American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2600
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oj adwat@aclu.org lgelemt@aclu.org cwang@aclu.org
Jennifer Chang Newellt Cody H. Wofsyt American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 Tel. (415) 343-0770 jnewell@aclu.org cwofsy@aclu.org
Kilpatrick Townsend & Stockton LLP 1114 Avenue of the Americas New York, NY 10036 Phone: (212) 775-8703 Fax: (212) 775-8819

20

 
 Case 1:17-cv-00116-LMB-TCB Document 114 Filed 02/27/17 Page 1 of 2 PageID# 1375

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division
TAREQ AQEL MOHAMMED AZIZ, §t

Petitioners,

V.

l:17-cv-116(LMB/TCB)

DONALD TRUMP, President ofthe United States, ^ al..

Defendants.

ORDER

Before the Court is a Motion to Intervene Pursuant to F.R.C.P. 24 ("Motion") by pro se

movant Vincent A. Molino ("movant" or "Molino"). Movant's filings extensively detail his

support for the executive order at the heart ofthis litigation ("the EO"). For the reasons that

follow, the motion will be denied.

Federal Rule of Civil Procedure 24(a)(2) requires a court to permit intervention by a party

who "claims an interest relating to the... subject ofthe action, 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 adequately represent that interest." The Fourth Circuit has articulated a

three-part test for Rule 24(a)(2) intervention, requiring a movant to show: "(1) an interest in the

subject matter ofthe action; (2) that the protection ofthis interest would be impaired because ofthe

action; and (3) that the applicant's interest is not adequately represented by existing parties to the

litigation." Teaeue v. Bakker. 931 F.2d 259,260-61 (4th Cir. 1991).

Even when a party may not intervene as of right, a court may permit intervention when the

party "has a claim or defense that shares with the main action a common question of law or fact."

Fed. R. Civ. P. 24(b)(1)(b). The Fourth Circuit favors "liberal intervention... to dispose of as

much of a controversy" as possible. Feller v. Brock. 802 F.2d 722, 729 (4th Cir. 1986). When

Case 1:17-cv-00116-LMB-TCB Document 114 Filed 02/27/17 Page 2 of 2 PageID# 1376

 
 Case 1:17-cv-00116-LMB-TCB Document 115 Filed 02/28/17 Page 1 of 5 PageID# 1377

UNITED STATES DISRICT COURT EASTERN DISTRICT OF VIRGINA

TAREQ AZIZ, et al,
Petitioners

v.

No. 1:17-cv-0116(LMB/TCB)

DONALD TRUMP, President ofthe United States, et al., Respondents

Ir - -

~:nyo
rv1JI.!1 PCCl!JI

[~ER 82017J ?

L_C_L_E/F: ... :

__CLC_lAlJR_T__J

MOTION FOR LEAVE TO FILE AN AMICUS BRIEF RAISING POLITICAL QUESTION NONJUSTICIABILITY, A BRIEF FROM AMICUS CURAIE PROFESSOR VICTOR WILLIAMS,
OF THE AMERICA FIRST LAWYERS ASSOCATION, IN SUPPORT OF PRESIDENT DONALD J. TRUMP

Victor Williams, Appearing Pro Se
America First Lawyers Association www.americafirstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (30.1) 951-9045 americanfirstlawyers@gmail.com

1

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Comes now Professor Victor Williams seeking leave of the Court to file an Amicus Brief in support of the Respondent President Donald J. Trump respectfully asserting that this Court does not have subject matter jurisdiction in this matter as the case presents a nonjusticiable political question. Amicus further respectfully suggests that this Court has an obligation to sua sponte examine this subject matter deficiency, void its preliminary injunction, and dismiss the action.
INTEREST OF PROSPECTIVE AMICUS Professor Victor Williams is a Washington, D.C. attorney and law professor with over twenty years' experience -- formerly affiliated as fulltime faculty with both the City University ofNew York's John Jay College of Criminal Justice and the Catholic University of America's Columbus School of Law. Williams has advanced training in federal jurisdiction and international law (LL.M. Columbia University's School of Law) and in economic analysis ofthe law (LL.M. George Mason University's Scalia School of Law). Professor Williams has particular knowledge and expertise regarding the text, history, and interpretation of Article II and Article III of the U.S. Constitution. Since his undergraduate law studies (J.D. University of California-Hastings College of the Law), Professor Williams has has published scholarship and
2

Case 1:17-cv-00116-LMB-TCB Document 115 Filed 02/28/17 Page 3 of 5 PageID# 1379
commentary that offered strong support for the constitutional discretion and prerogatives ofthe past four presidents (without regard to their party affiliation).
In past, Professor Victor Williams has been granted leave to file Amicus Briefs in other lower courts as well as by the U.S. Supreme Court. Prospective Amicus asked for party consent to this filing through email with the Virginia Attorney General declining and Justice Department not responding.
UNIQUE CONTRIBUTION OF THE AMICUS BREIF
Prospective Amicus offers that the proffered brief will make a valuable contribution to the existing briefing in this case as it presents an alternatively focused theory asserting that the claims against the president's January 27,2017 executive order raise a nonjusticiable political question.
Amicus respectfully argues that the Court does not have subject matter jurisdiction in this matter. And Amicus further respectfully suggests that this Court has an obligation to sua sponte examine this subject matter deficiency, in full, before proceeding further in this adjudication. If a case presents a political question, the judiciary lacks subject matter jurisdiction to decide that question. See Victor Williams, Travel Ban Challenges Present a Non-Reviewable Political Question, JURIST- Forum, Feb.15, 2017. http://jurist.org/forum/2017/02NictorWilliams-travel-ban.php
3

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If a case presents a political question, the judiciary lacks subject matter jurisdiction to decide that question. See Victor Williams, Travel Ban Challenges Present a Non-Reviewable Political Question, JURIST- Forum, Feb.15, 2017. http://jurist.org/forum/20 17/02/Victor-Williams-travel-ban.php
Presenting just one argument: There are no judicially manageable standards by which the Court can endeavor to assess the President's interpretation of classified and military intelligence and his resulting decision-based on that intelligence-whether to restrict entry of foreign-soil aliens visiting from certain terrorist-breeding nations. The Court's inquiry is barred by the patent political question, and any assertion by the Court or Petitioner that such is necessary to a related statutory analysis would not make the inquiry or the controversy justiciable.
But both technical and prudential understandings ofthe political question doctrine requires this Court to reject review of this matter.
Submitted on February 25,2017
·ct illiams, Appearing Pro Se America First Lawyers Association www.americafirstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 americanfirstlawyers@gmail.com
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CERTIFICATE OF SERVICE
I hereby certify that on February 25,2017, the foregoing motion with proposed brief was filed with the Clerk ofthis Court using the U.S. Mail (as pro se prospective Amicus is not a registered ECF user) and served on parties of record also using U.S. Mail. Victor Williams, pro se
Lawyers Association ,....,,l,......,....ericafirstla ers.com 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 /americanfirstlawyers@gmail.com
5

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 1 of 24 PageID# 1382

UNITED STATES DISRICT COURT EASTERN DISTRICT OF VIRGINA

TAREQ AZIZ, eta/,
Petitioners

v.

No. 1:17-cv-0116(LMB/TCB)

DONALD TRUMP, President ofthe United States, et al., Respondents

RAISING POLITICAL QUESTION NONJUSTICIABILITY, A BRIEF FROM AMICUS CURAIE PROFESSOR VICTOR WILLIAMS,
OF THE AMERICA FIRST LAWYERS ASSOCATION, IN SUPPORT OF PRESIDENT DONALD J. TRUMP
Victor Williams, Appearing Pro Se
America First Lawyers Association www.americafirstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 americanfirstlawyers@gmail.com

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 2 of 24 PageID# 1383
CERTIFICATE AS TO PARTIES & RELATED CASES
A. Parties and Amici. All parties, interveners, and amici appearing in this Court are listed in party briefing except that this brief is filed on behalf of Professor Victor Williams in support of President Donald Trump, eta/. B. Related Cases. Other related cases of which Amicus is aware are referenced in the briefing offered by parties.
America First Lawyers Association www.americafirstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 americanfirstlawyers@gmail.com
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TABLE OF CONTENTS

Page

Certificate as to Parties, Rulings and Related Cases .....................................i Table of Contents.............................................................................ii Table ofAuthorities.......................................................................iii, iv Statement of Authorship and Financial Contribution........................................v Statement of Identity, Interest and Authority ofAmicus................................ .1 Argument ....................................................................................... 3 Certificate of Service........................................................................ 18

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Cases:

TABLE OF AUTHORITIES

Page(s)

Al-Aulaqi v. Obama, 727 F. Supp.2d 1 (D.D.C. 201 0)................................. 17

Baker v. Carr, 369, U.S. 186 (1962).................................................9,14,15

Boumediene v. Bush, 553 US 723 (2008)..................................................4

Colegrove v. Green, 328 U.S. 549 (1946)..................................................9

Coleman v. Miller, 301 U.S. 433 (1939)...................................................9

DaCosta v. Laird, 471 F.2d 1146 (2nd Cir. 1973).......................................4

El-Shifa v. United States, 607 F.3d 836 (D.C. Cir. 2010) (en bane) ..................10

Goldwater v. Carter, 44 U.S. 996 (1979) ................................................. 13

Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ........................................4

Lowry v. Regan, 676 F. Supp. 333 (D.D.C. 1987)..................................... .11

Luther v. Borden, 48 U.S. (7 How.) 1 (1849).............................................9

Marbury v. Madison, 5 U.S. 137 (1803)........................................................5,16

Miami Nation ofIndians v. Interior, 255 F.3d 342 (7th Cir. 2001)......... ,......... 6

Nixon v. United States, 506 U.S. 224 (1993)......................................... 11,12

Nixon v. United States, 938 F.2d 239 (D.C. Cir. 1991)................................. 15

Oetjen v. Central Leather Co., 246 U.S. 297 (1918).....................................9

Rasul v. Bush, 542 U.S. 446 (2004) ........................................................4

Smith v. Reagan, 844 F.2d 195, 199 (4th Cir. 1988)..................................4,11

Snider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005)................................9

iv

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TABLE OF AUTHORITIES (continued)

Constitutions/Statutes/Executive Orders

Page(s):

U.S. Const.

art. II, § 1 ....................................................................................... 7.8

art. II, § 2 ................................................................................................................. 8

Exec. Order No. 13769, 82 FED. REG. 8977 (January 27, 2017) (titled: Protecting the Nation from Foreign Terrorist Entry into the United States) .................... ...4

Other

Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS {Yale 1986) ...................................................... 14

Stephen Dinan, Lawyer Says Trump is Right to Chide Judge over "Ridiculous" Ruling, WASH. TIMES, Feb. 6, 2017,
http:l/~.washingtontimes.coinlnews/2017/feb/6/lawyer-trump-right-chide-
judge-ridiculous-ruling/ .....................................................................7
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)......................................... 8
Speech of the Honorable John Marshall (Mar. 7, 1800)(citied by The Political Question Doctrine and the Supreme Court ofthe United States (Nada Mourtada-Sabbah and Bruce E. Cain, eds.)(2007) ................................5
Donald J. Trump (@RealDonaldTrump), Twitter (Feb. 4, 2017, 8:12 AM), https://twitter.com/realDonaldTrump?ref src=twsrc%5Etfw........................6,7
Victor Williams, Travel Ban Challenges Present a Non-Reviewable Political Question, JURIST- Forum, Feb.15, 2017, http://jurist.org/forum/20 17/02Nictor-Williams-travel-ban.php..............................3

v

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 6 of 24 PageID# 1387
STATEMENT OF AUTHORSHIP AND FINANCIAL CONTRIBUTION This brief is offered by Amicus as an individual. Amicus affiliation is
offered only for informational purposes. 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.
vi

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 7 of 24 PageID# 1388
STATEMENT OF IDENTITY, INTEREST AND AUTHORITY OF AMICUS
In attached Motion, leave of the Court is requested to file this Brief. In past, Professor Victor Williams has been granted leave to file Amicus Briefs in other lower courts as well as by the U.S. Supreme Court. Prospective Amicus asked for party consent to this filing through email with the Virginia Attorney General - declining and DOJ not responding. Professor Victor Williams is a Washington, D.C. attorney and law professor with over twenty years' experience-- formerly affiliated as fulltime faculty with both the City University of New York's John Jay College of Criminal Justice and the Catholic University of America's Columbus School of Law. Williams has advanced training in federal jurisdiction and. international law (LL.M. Columbia University's School ofLaw) and in economic analysis ofthe law (LL.M. George Mason University's Scalia School of Law). Professor Williams has particular knowledge and expertise regarding the text, history, and interpretation of Article II and Article III of the U.S. Constitution.
Since his undergraduate law studies (J.D. University of California-Hastings College of the Law), Professor Williams has has published scholarship and commentary that offered strong support for the constitutional discretion and prerogatives of the past four presidents (without regard to their party affiliation). These past presidents quite often pursued policy ends at odds with Professor Williams' personal policy preferences.

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 8 of 24 PageID# 1389
But now, Professor Williams' ultimate policy preference to always "put America first" is clearly reflected in President Trump's agenda and early actions.
Professor Williams was an early primary supporter of candidate Donald Trump. In spring 2016, Professor Williams launched a disruptive legal action, after obtaining "competitor candidate standing" as a write-in candidate in several late primary states, to challenge the ballot eligibility of(naturally-bom Canadian) Ted Cruz. (www.victorwilliamsforpresident.cotn).
After Senator Cruz withdrew from the GOP primary, Professor Williams also withdrew from the primary race, formerly endorsed Donald Trump, and founded an independent campaign Super PAC (GOP Lawyers Super PAC) rallying Lawyers and Law Professo~s (www.goplawyers.com) to support Donald T~mp in the general election.
The campaign group has now transformed into, and rebranded as, the "America First Lawyers Association" (www.americafirstlawyers.com), which Professor Williams chairs, to support Trump administration "America first"
, policies, and other efforts.
--------~
America First Lawyers Association www.americafirstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 americanfirstlawyers@gmail.com
2

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 9 of 24 PageID# 1390
ARGUMENT
Amicus respectfully argues that the Court does not have subject matter jurisdiction in this matter. This Court has an obligation to sua sponte examine this subject matter deficiency, in full, before proceeding further in this adjudication. If a case presents a political question, the judiciary lacks subject matter jurisdiction to decide that question. See Victor Williams, Travel Ban Challenges Present a NonReviewable Political Question, JURIST- Forum, Feb.15, 2017.
Offered in support of President Donald J. Trump, et al, this Amicus Brief endorses and incorporates DOJ's factual statement, background, and arguments particularly as to statutory interpretation. However, Amicus presents an alternatively focused theory asserting that the claims against the president's January 27, 2017 executive order raise a nonjusticiable political question.
In sum: There are no judicially manageable standards by which the Court can endeavor to assess the President's interpretation of classified and military intelligence and his resulting decision-based on that intelligence-whether to restrict entry of foreign-soil aliens visiting from certain terrorist-breeding nations. The Court's inquiry is barred by the patent political question, and the Court's assertion that such is necessary to its related statutory analysis would not make the inquiry or the controversy justiciable.
3

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 10 of 24 PageID# 1391
Article II textually grants the president exclusive responsibility to implement war strategy and security-related foreign policy to defeat America's foreign enemies. In Harisiades v. Shaughnessy, the Supreme Court states that "any policy toward aliens is vitally and intricately interwoven" with both "war powers" and "foreign relations" conduct. 342 U.S. 580, 588-89 (1952). See DaCosta v. Laird, 471 F.2d 1146 (2nd Cir. 1973) and Smith v. Reagan, 844 F.2d 195 (4th Cir. 1988).
America is at war. The stated purpose ofthe president's challenged executive order is "to protect the American people from terrorist attacks from
foreign nationals." Exec.Order No. 13769, 82 FED. REG. 8977 (January 27, 2017)
(titled: Protectill::::,··:ne Nation from Foreign Terrorist Entry into the United States). The war action is taken by the Executive in his joint constitutional ~apacity as Commander-in-Chief and Chief Executive.
Traveling aliens present a particular threat of terrorism. The restricted traveling aliens come directly from foreign soil. The traveling aliens do not come from soil over which America has "plenary or exclusive jurisdiction." Rasul v. Bush, 542 U.S. 446 (2004). The assertion ofjudicial authority in the Guantanamo Bay line of cases is thus not -- in any way -- supportive of the Court's subject matter jurisdiction in this matter. See Boumediene v. Bush, 53 US 723 (2008).
4

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 11 of 24 PageID# 1392
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 jurisdiction to act in its prescribed and limited role as a court.
Congressman John Marshall, in 1800, warned his U.S. House colleagues that the political branches would be "swallowed-up by the judiciary" without such judicial self-restraint. Speech of the Honorable John Marshall (Mar. 7, 1800), 18 U.S. app. note I, at 16-17 (1820) (citied by The Political Question Doctrine and the Supreme Court ofthe United States (Nada Mourtada-Sabbah and Bruce E. Cain, eds.) 25 n. 10) 2007).
Three years later, Chief Justice John Marshall provided early guidance as to the "rule of law to guide the court in the exercise of its jurisdiction." Marshall offered this political question description: "By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience." Marbury v. Madison, 5 U.S. 137, 165 (1803).
5

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 12 of 24 PageID# 1393
Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit artfully explains that the doctrine acknowledges the Constitution's "assignment of exclusive decision making responsibility to the nonjudicial branches ofthe federal government." Miami Nation ofIndians v. Department ofInterior, 255 F.3d 342 (7th Cir. 2001). The president's war-strategy discretion to deny entry onto American soil of aliens coming from the foreign soil of terrorist-breeding nations "lies at the heart ofthe doctrine of 'political questions.'" Consider this further description by Judge Posner:
The doctrine identifies a class of questions that either are not amenable to judicial resolution because the relevant considerations are beyond the courts' capacity to gather and weigh, or have been committed by the Constitution to the exclusive, unreviewable discretion of the executive and/or legislativethe so-called 'political' - branches of the federal government. Id. (citations and references omitted).
Even more instructive is Judge Posner's strong statement regarding the "nature of the questions that the court would have to answer- which asks whether the answers would be ones a federal court could give without ceasing to be a court." Id. (emphasis added).
6

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 13 of 24 PageID# 1394
It follows from Judge Posner's analysis that President Donald Trump's Twitter reaction to judicial attempts to interfere with his constitutional authority was spot-on accurate. "The opinion of this so-called judge.. .is ridiculous and will be overturned!" Donald J. Trump (@RealDonaldTrump), Twitter (Feb. 4, 2017, 8: 12 AM), https://twitter.com/realDonaldTrump?ref_src=twsrc%5Etfw.
When a court resolves to answer a patent political question, it ceases to be a court-- just as Judge Posner asserts. Judicial answers to patent political questions, even if offered in good faith, must indeed come from "so-called judges." For the jurists are not acting in their juridical capacity when pronouncing such orders and rulings. While such orders and rulings are still to be obeyed (and the America rule of law dictates-that they be fully enforced even at the point of the U.S. Marshall's bayonet), such orders and rulings are extra-judicial in nature. They do not result from an act ofjudging. At best, they result from "so-called" judging. Amicus respectfully asserts that, at worst, such judicial interference with the Commanderin-Chiefs decisions as to war strategy might retrospectively be seen as a historically dangerous usurpation ofpolitical authority. See generally, Stephen Dinan, Lawyer Says Trump is Right to Chide Judge over "Ridiculous" Ruling, WASH. TIMES, Feb. 6, 2017 (interview with Amicus), http://www. washingtontimes.com/news/20 17/feb/6/lawyer-trump-right-chidejudge-ridiculous-rul ing/.
7

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 14 of 24 PageID# 1395
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 alien enemies landing on our shores. 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 ofnational exigencies, and the correspondent extent and variety ofthe means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense. Alexander Hamilton, "No. 23: The Necessity 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.
8

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 15 of 24 PageID# 1396
From Marbury forward, the judicial 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).
In the modem case ofBaker 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 ofjudicially discoverable and manageable standards for resolving it; [3] or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; [4] or the impossibility of a court's undertaking of independent resolution without expressing lack ofthe respect due to coordinate branches ofgovernment; [5] or an unusual need for unquestioning adherence to the political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
See Baker, 369 U.S. at 217.
9

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 16 of 24 PageID# 1397
It is widely recognized that only one criteria is needed for an abstention determination. See Snider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005). But not one, not two, but all six Baker characteristics are patent in this Court's consideration of the challenge to the travel restriction.
If the Court goes beyond the textually-committed Article II authority of the president as Commander-in-Chief and ChiefExecutive, it will become lost in the densest of a modem political thicket. The 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. See El-Shifa v. United States, 607 F.3d 836 (D.C. Cir. 2010) (en bane).
There are no judicially manageable standards by which the Court can endeavor to assess the President's interpretation of classified and military intelligence and his resulting decision-based on that intelligence-whether to restrict entry of foreign-soil visitors from certain terrorist-breeding nations. The Court's inquiry is barred by the patent political question, and the Court's assertion that such is necessary to its related statutory analysis does not make the inquiry or the controversy justiciable. ld.at 843.
Particularly for directly questioning the underlying motives ofthe newly elected President Donald Trump in deciding to implement the executive order,
10

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 17 of 24 PageID# 1398
some sister courts in similar challenges have already shown substantial respect due the political branch of government. Sadly, to some observers and commentators, it appears that such judicial disrespect against Donald Trump was purposeful. With little or no concern for "adherence" to the president's political decision already made, the Court will throw this nation into further chaos by further reviewing this challenge. And the Court will only add to the "multifarious pronouncements" of courts across the nation regarding the travel restriction. The Executive is engaged in a delicate military and foreign policy calculus-one that is severely disrupted by judicial intervention. Although it is the federal judiciary which suffers "embarrassment" from this intervention, it is the American people who suffer a greater danger ofterrorist violence.
Further, it has already been shown that judicial declarations that contradicts President Trump's judgments on the travel restrictions "create doubts in the international community regarding the resolve of the United States to adhere to this position." Lowry v. Regan, 676 F. Supp. 333, 340 (D.D.C. 1987). See also, Smith v. Reagan, 844 F.2d 195, 199 (4th Cir. 1988).
Subsequent to Baker, the Supreme Court in Nixon v. United States, 506 U.S. 224 (1993) applied these Baker factors by instructing that the political question analysis begins by "determin[ing] whether and to what extent the issue is textually committed." 506 U.S. at 228. The Supreme Court rejected, as
11

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 18 of 24 PageID# 1399
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 -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" !d. 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 this Court review the president's exercise of his exclusive textual authority to implement war strategy and security-related foreign policy. Just as the Supreme Court did in the Nixon, this Court should readily determine that "there is no separate provision of the Constitution" that could be rationally argued, by any party with standing, to conflict with the President's textual "authority" to utilize his war powers. 506 U.S. at 237.
12

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 19 of 24 PageID# 1400
As an additional preliminary point of authority, Goldwater v. Carter· is an example ofthe Supreme Court's most efficient political question determination. 444 U.S. 996 (1979). Goldwater involved a group of senators, led by Barry Goldwater, who sued President Jimmy Carter to challenge his abrogation of a United States treaty with Taiwan. The Supreme Court rejected the senators' attempt to interfere with an exclusive Executive 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." !d. In a concurring statement, Associate Justice William Rehnquist explained: "[T]he basic question present~d by the petitioners in this case is 'political' an4 therefore nonjusticiable." !d. at 1002. 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. !d. at 1005-06.
13

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 20 of 24 PageID# 1401
Perhaps less "domesticated" abstention advocacy is needed for this Court's self-restraint in 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 written aesthetic, Alexander Bickel offered a foundation instead of Baker-like criteria:
In a mature democracy, choices such as this must be made by the executive..." Such is the foundation, in both intellect and instinct, of the political-question doctrine: the Court's sense of lack of capacity, compounded in unequal parts of(a) the strangeness of the issue and its intractability to principled resolution; (b) the sheer momentousness of it, which tends to unbalance judicial judgment; (c) the anxiety, not so much that the judicial judgment will be ignored, as that perhaps it should but will not be; (d) finally ("in a mature democracy"), the inner vulnerability, the selfdoubt of an institution which is electorally irresponsible and has no earth to draw strength from. Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 184 {Yale 1986).
14

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 21 of 24 PageID# 1402
When considering the danger that judicial restriction ofthe Executive's war powers poses for the security ofthe American people, it is disturbingly prescient that Professor Bickel addressed "the anxiety, not so much that the judicial judgment will be ignored but that it should but will not be."
And certainly today, our unelected judiciary, which has "no earth to draw strength from," would be both wise and prudent to stay out of the worsening and ugly mud-fight initiated by the ideological elites against Donald John Trump.
Admittedly, the late Yale University Law professor's prudential poetry unnerves the judge-centric consciousness so predominant in our age. _All the more reason for this Court's deep consideration of its fundamental truths.
There is a related -- but separate -consideration for this Court: The nation's extreme need for finality in 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).
15

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 22 of 24 PageID# 1403
The cost of an unrestrained judiciary answering political questions is often 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 chiefjustices, the intrusion of the courts would expose the political life of the country to months, or perhaps years, of chaos. Idat246. 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." !d..
As Trump derangement syndrome appears virulently contagious among certain intellectual and political elites -particularly among lawyers who need only the federal court filing fee manifest their disorder -- finality in this area is needed to help retard future frivolous litigation against Donald Trump's governance.
Article II grants the president exclusive war powers and security-related foreign relations authorities "the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience." Marbury v. Madison. 5 U.S. 137, 165 (1803).
16

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 23 of 24 PageID# 1404
Attempts by the judiciary to interfere with President Trump's wartime
exercise ofhis inherent authorities, in deciding whether to allow entry of foreignsoil aliens onto American soil, threaten a dangerous usurpation.
The president, not the judiciary, has the institutional competence make judgments about what specific actions are required in order for the Executive to fulfill his defense responsibilities during this unusual, ongoing war against radical Islamic terrorists_. See generally Al-Aulaqi v. Obama, 727 F. Supp.2d 1 (D.D.C. 2010).
The challenges to President Donald John Trump's exercise of those exclusive authorities raise a nonjusticiable political question and are due for immediate dismissal.
Am ·ca First Lawyers Association "1"1'"''"'"1T.americafirstla ers.com 5 09 Baltimore Ave, Bethesda, :NID 20816 (301) 951-9045 americanfirstlawyers@gmail.com
17

Case 1:17-cv-00116-LMB-TCB Document 115-1 Filed 02/28/17 Page 24 of 24 PageID# 1405
CERTIFICATE OF SERVICE
I hereby certify that on February 25, 2017, the foregoing brief with motion was filed with the Clerk of this Court using the U.S. Mail (as prose prospective Amicus is not a registered ECF user) and served on parties of record also using U.S. Mail.
rica First Lawyers Association .americafirstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 /americanfirstlawyers@gmail.com
18

Case 1:17-cv-00116-LMB-TCB Document 115-2 Filed 02/28/17 Page 1 of 1 PageID# 1406
2-25-2017
Clerk's Office Please find enclosed a motion and proposed Amicus brief for the named pending case.
Not holding a bar membership with this court and proceeding prose, I
am not able to access ECF fili g so I file this in paper form.
America First Lawyers Association www.americafrrstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (30 1) 951-9045 americanfrrstlawyers@gmail.com

 
 Case 1:17-cv-00116-LMB-TCB Document 116 Filed 03/06/17 Page 1 of 7 PageID# 1407

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al.,

)

)

Petitioners,

)

)

v.

)

)

DONALD TRUMP, et al.,

)

)

Respondents.

)

)

1:17-CV-116 (LMB/TCB)

NOTICE TO THE COURT Undersigned counsel write to update this Court as to significant developments since the Court entered its preliminary injunction enjoining section 3(c) of Executive Order No. 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Old EO”), which bear on this litigation. On March 6, 2017, the President signed an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “New EO,” attached as Exhibit A).1 The New EO, by its terms, will not take effect until March 16, 2017. See New EO, § 14. As of that date, the New EO revokes the Old EO, Executive Order No. 13,769, see New EO, § 13, which is the subject of this litigation, and sets forth new policies that are substantially different in form and scope than the policies articulated by the Old EO, including section 3(c) of the Old EO, which is subject to this Court’s Preliminary Injunction Order entered February 13, 2017. See ECF 112.

1 Based on the Government’s representation to the Ninth Circuit that this New EO was forthcoming, the Ninth Circuit stayed en banc proceedings in that case. As of this filing, the Ninth Circuit has not yet issued a decision with respect to its call for en banc briefing from the parties, although the motions panel has issued a briefing schedule on the merits of the preliminary injunction issued by the district court.
1

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Relevant to the issues before the Court, the New Executive Order (i) suspends entry for 90 days of certain foreign nationals from six of the seven countries2 designated in Executive Order No. 13,769 who do not hold valid visas; (ii) creates a case-by-case waiver process for those foreign nationals that is integrated into the visa application and admission processes; (iii) directs a 120-day pause of certain aspects of the U.S. Refugee Admissions Program, which does not apply to refugee applicants who already have been formally scheduled for transit, and also allows for case-by-case waivers; and (iv) contains explanations in support of the newly issued policy.
In light of the New EO, undersigned counsel for the Respondents respectfully inform the Court as follows:
1. First, it is the Government’s view that the New EO excludes from its coverage all individuals who were subject to this Court’s preliminary injunction order, i.e., “any person who has a Virginia residence or is employed by or attends an educational institution administered by the Commonwealth of Virginia, and who, as of 5:00 p.m. Eastern Standard Time on Friday, January 27,2017, was lawfully admitted for permanent residency in the United States, held an immigrant visa that would entitle the bearer to be lawfully admitted for permanent residency upon admission to the United States, held a valid student visa (or accompanying family or
2 The suspension of entry no longer applies to nationals of Iraq because, since the Old EO 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.” New EO, § 1(g). Moreover, the New EO states there exists a close cooperative relationship between the United States and the Iraqi government, a strong U.S. diplomatic presence in Iraq, a significant presence of U.S. forces in Iraq, and a commitment by Iraq to combat ISIS. See id. Accordingly, the New EO provides that Iraq “presents a special case,” id., although “[d]ecisions 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.” Id.; see also New EO, § 4.
2

Case 1:17-cv-00116-LMB-TCB Document 116 Filed 03/06/17 Page 3 of 7 PageID# 1409
spousal visa), or held a valid work visa (or accompanying family or spousal visa).” ECF 112 at 1. The suspension of entry provisions now apply to nationals of Iran, Libya, Somalia,
Sudan, Syria, and Yemen who are outside the United States on the New EO’s effective date of March 16, 2017, do not have a valid visa on that date, and did not have a valid visa as of 5:00 p.m. Eastern Standard Time on January 27, 2017. See New EO, § 3(a). The New EO specifically excludes from its coverage, among other things:
 lawful permanent residents;  any foreign national admitted to or paroled into the United States on or after the
New EO’s effective date;  any individual who has a document other than a visa, valid on the effective date of
the New EO or issued anytime thereafter, that permits the individual to travel to the United States and seek entry or admission, such as advance parole;  any dual national traveling on a passport not issued by one of the six designated countries;  any foreign national traveling on diplomatic, diplomatic-type, or other specified visas; and  any foreign national who has been granted asylum, any refugee already admitted to the United States, or any individual granted withholding of removal, advance parole, or protection under the Convention Against Torture. See id., § 3(b). These provisions explicitly exclude from the New EO all individuals subject to this Court’s February 13, 2017 Preliminary Injunction Order.3 Moreover, the New EO directs that it
3 Although beyond the scope of this Court’s current injunctive order, the New EO also includes waiver provisions for numerous categories of aliens without valid visas, including aliens who may seek to come the United States due to a relationship with a U.S. resident or institution, id., §
3

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shall not be the basis for the revocation of any visa, and does not apply to people in the United States, including those professors or students with a relationship to the Commonwealth or its universities. Id., §§ 3(a), 12(c). It is thus respectfully submitted that the New EO falls outside of this Court’s injunction. See, e.g., Diffenderfer v. Central Baptist Church of Miami, Inc., 404 U.S. 412, 414-415 (1972) (per curiam); accord Fusari v. Steinberg, 419 U.S. 379, 387-90 (1975). Accordingly, undersigned counsel respectfully submit that nothing in this Court’s current injunctive order precludes the Executive Branch from enforcing the terms of the New EO as of its effective date, March 16, 2017.
2. Second, following the filing of the Notice, undersigned counsel will contact counsel for the Commonwealth of Virginia to meet and confer concerning a joint scheduling order governing future proceedings before this Court.
3. Third, given the foregoing, the Government respectfully submits that the New EO does not present a need for the same type of emergency, expedited litigation that occurred with respect to Virginia’s challenge to the Old EO. The concerns relied upon by the Commonwealth in bringing this action are no longer at issue. Indeed, by its own terms, the new EO will apply only to specified foreign nationals from the six countries who: (a) are outside the United States on the effective date of the new EO; (b) did not have a valid visa at 5 p.m. Eastern Standard Time on January 27, 2017; and (c) do not have a valid visa on the effective date of the new EO. See New EO, § 3. As to those individuals from the six countries covered by the New EO – i.e. covered aliens overseas without a valid visa – applying for visas prospectively, the Government notes that the visa application and approval process can often be a lengthy one, and the type of
3(c), and once a recipient receives such a waiver and thereafter is lawfully admitted to the United States, see 8 U.S.C. § 1101(a)(13)(A), he or she will not be required to secure another waiver in order to leave and then return to the United States. New EO § 3(b)(ii).
4

Case 1:17-cv-00116-LMB-TCB Document 116 Filed 03/06/17 Page 5 of 7 PageID# 1411

temporary pause in entry directed by the New EO will not cause immediate harm where

applicants have no entitlement to a visa or travel document and may normally wait a period of

months or longer for ultimate approval and issuance of a visa or travel document if found

eligible. Notably, however, no such individuals are at issue in this litigation at this time, and even

if they were, the New EO provides robust waiver authority under which such individuals may

seek relief if they wish to travel to the United States.

Thus, the Government respectfully submits that, to the extent Plaintiff has any basis to

challenge the New EO, proceedings in this matter should proceed in a manner to allow this Court

a more complete opportunity to assess any constitutional claims plaintiff may have concerning

the provisions of the New EO.

Respectfully submitted,

DANA J. BOENTE United States Attorney

CHAD A. READLER Acting Assistant Attorney General Civil Division

WILLIAM PEACHEY Director Civil Division, Office of Immigration Litigation

By:

/s/________________

DENNIS C. BARGHAAN, JR.

Assistant U.S. Attorney

2100 Jamieson Avenue

Alexandria, Virginia 22314

Telephone: (703) 299-3891

Fax:

(703) 299-3983

Email: dennis.barghaan@usdoj.gov

EREZ REUVENI Senior Litigation Counsel Civil Division, Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, D.C. 20044

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Case 1:17-cv-00116-LMB-TCB Document 116 Filed 03/06/17 Page 6 of 7 PageID# 1412

DATE: March 6, 2017

Telephone: (202) 307-4293

Fax:

(202) 616-8962

Email: erez.r.reuvani@usdoj.gov

ATTORNEYS FOR RESPONDENTS

6

Case 1:17-cv-00116-LMB-TCB Document 116 Filed 03/06/17 Page 7 of 7 PageID# 1413

CERTIFICATE OF SERVICE

I hereby certify that on March 6, 2017, I electronically filed the foregoing Notice using

the Court’s CM/ECF system, causing a notice of filing to be served upon all counsel of record:

Stuart Alan Raphael Office of the Attorney General (Richmond)
202 North 9th Street Richmond, Virginia 23219 Email: sraphael@oag.state.va.us

Dated: March 6, 2017

By:

/s/________________

DENNIS C. BARGHAAN, JR.

Assistant U.S. Attorney

2100 Jamieson Avenue

Alexandria, Virginia 22314

Telephone: (703) 299-3891

Fax:

(703) 299-3983

Email: dennis.barghaan@usdoj.gov

ATTORNEYS FOR RESPONDENTS

7

Case 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 1 of 19 PageID# 1414

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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 2 of 19 PageID# 1415
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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 3 of 19 PageID# 1416
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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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 4 of 19 PageID# 1417
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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 5 of 19 PageID# 1418
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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 6 of 19 PageID# 1419
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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 7 of 19 PageID# 1420
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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 8 of 19 PageID# 1421
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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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 9 of 19 PageID# 1422
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(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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 10 of 19 PageID# 1423
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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.

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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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 12 of 19 PageID# 1425

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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 13 of 19 PageID# 1426
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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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 14 of 19 PageID# 1427
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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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 15 of 19 PageID# 1428
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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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 16 of 19 PageID# 1429
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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 17 of 19 PageID# 1430
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.

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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 1:17-cv-00116-LMB-TCB Document 116-1 Filed 03/06/17 Page 19 of 19 PageID# 1432
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.
# # #

 
 Case 1:17-cv-00116-LMB-TCB Document 117 Filed 03/15/17 Page 1 of 7 PageID# 1433

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)

Petitioners,

)

)

THE COMMONWEALTH OF VIRGINIA, )

)

Intervenor-Petitioner,

)

)

v.

)

)

DONALD TRUMP, President of the United )

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

INTERVENOR-PETITIONER’S BRIEF IN OPPOSITION TO MOTION BY PROFESSOR VICTOR WILLIAMS FOR LEAVE TO FILE AMICUS BRIEF The Court should deny Professor Williams’s motion for leave to file an amicus brief arguing that “this Court does not have subject matter jurisdiction in this matter as the case presents a nonjusticiable political question.”1 This Court rejected that argument in its February 13, 2017 memorandum opinion granting the Commonwealth’s motion for a preliminary injunction, after the Government advanced it both in its briefing and at the hearing on February 10. Professor Williams could have sought leave to file a brief in support of the Government’s position while the Commonwealth’s motion remained pending, but that time passed weeks ago. Because the proposed amicus brief is neither timely nor useful, his motion should be denied.

1 Dkt. 115 at 2.

1

Case 1:17-cv-00116-LMB-TCB Document 117 Filed 03/15/17 Page 2 of 7 PageID# 1434
ARGUMENT A. Legal standards. “The Court has broad discretion in deciding whether to allow a non-party to participate as an amicus curiae.”2 Amicus briefs are “‘allowed at the trial level where they provide helpful analysis of the law, they have a special interest in the subject matter of the suit, or existing counsel is in need of assistance.’”3 But a motion for leave to file an amicus brief “should not be granted unless the court deems the proffered information timely and useful.”4 “[I]f a proposed brief would not be helpful, an amicus may be turned away. An amicus brief may be unhelpful for many reasons, including because it is untimely or does not provide information relevant to a pending decision.”5 B. The proposed amicus brief is not timely. Professor Williams’s motion should be denied as untimely. It comes three weeks after the Government opposed the Commonwealth’s motion for a preliminary injunction and more than two weeks after the Court granted the motion. Courts regularly deny non-parties leave to file amicus briefs once a motion has been fully briefed (not to mention decided). For instance, in Centeno-Bernuy v. Perry,6 the U.S. District
2 Tafas v. Dudas, 511 F. Supp. 2d 652, 659 (E.D. Va. 2007) (citing Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), and Waste Mgmt., Inc. v. City of York, 162 F.R.D. 34, 36 (M.D. Pa. 1995)). 3 Id. (quoting Bryant v. Better Bus. Bureau, 923 F. Supp. 720, 727 (D. Md. 1996)). 4 Id. (internal punctuation and citations omitted). 5 Jamul Action Comm. v. Chaudhuri, No. 2:13-cv-01920, 2015 WL 1802813, at *2 (E.D. Cal. Apr. 17, 2015). 6 302 F. Supp. 2d 128 (W.D.N.Y. 2003).
2

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Court for the Western District of New York found untimely a leave-to-file motion because “the hearing ha[d] been completed and the preliminary injunction motion ha[d] been submitted for decision.”7 Similarly, in O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,8 the court denied leave to file an amicus brief after the parties had already briefed the plaintiffs’ preliminary-injunction motion and presented “arguments at a lengthy hearing.”9
Professor Williams could have sought leave to file an amicus brief before the February 10 hearing on the Commonwealth’s preliminary-injunction motion, but he did not, despite publicly criticizing “judicial interference with the Commander-in-Chief’s decisions as to war strategy” as early as February 6.10 Five other sets of amici timely sought and were granted leave to file briefs in this case on February 8 and February 9.11 As in United States v. Yaroshenko, where the U.S. District Court for the Southern District of New York rejected a proposed amicus brief by the Russian Federation, “nothing stopped [him] from seeking leave of the Court to file an amicus
7 Id. at 131 n.1. 8 282 F. Supp. 2d 1271 (D.N.M. 2002). 9 Id. at 1274 (“Allowing amici to step in at this late point would not be appropriate. . . . The Court has reached a decision . . . without reliance on the [proposed amicus] brief.”). See also Jamul Action Comm., 2015 WL 1802813, at *2 (rejecting amicus brief that was “best understood as a request for reconsideration of the court’s previous order”). 10 See Dkt. 115-1 at 7 (citing Professor Williams’s interview with the press: Stephen Dinan, Lawyer Says Trump is Right to Chide Judge over “Ridiculous” Ruling, WASH. TIMES (Feb. 6, 2017), http://www.washingtontimes.com/news/2017/feb/6/lawyer-trump-right-chide-judgeridiculous-ruling/). 11 See Dkt. 58 (Anti-Defamation League); Dkt. 66 (Muslim Advocates, et al.); Dkt. 72 (Americans United for Separation of Church and State, and the Southern Poverty Law Center); Dkt. 79 (16 States and the District of Columbia); Dkt. 88 (Fred T. Korematsu Center for Law and Equality, et al.).
3

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brief or other submission at that time. Yet [he] failed to do so.”12 Because of his unexplained delay, Professor Williams simply missed his opportunity to support the Government’s position.13
C. The proposed amicus brief is not useful because the nonjusticiability argument was already raised by the Government and rejected by the Court.
Even if it were timely, Professor Williams’s motion should also be denied because the
only argument in his proposed brief is duplicative of the Government’s previous arguments— arguments that the Court has already considered and rejected.14
The Government argued in its brief opposing the Commonwealth’s motion,15 as well as at the hearing on the motion,16 that the issues in this case are not justiciable. In its memorandum
opinion, the Court expressly acknowledged that the Government had “invok[ed] the political question doctrine”17—and then held that it did not apply here:
12 86 F. Supp. 3d 289, 290 (S.D.N.Y. 2015). Cf. Cal. Trout v. Norton, No. C 97-03779 SI, 2003 WL 23413688, at *8 (N.D. Cal. Feb. 26, 2003) (“Because the court finds that the applicants could have sought amicus status at an earlier state of the litigation, the request is untimely.”). 13 See Jamul Action Comm., 2015 WL 1802813, at *2 (rejecting amicus brief that was “unhelpful to resolve any pending issue”). 14 See Long v. Coast Resorts, Inc., 49 F. Supp. 2d 1177, 1177-78 (D. Nev. 1999) (rejecting motion by United States to file amicus brief that “merely reargue[d] what was argued fully and competently by Plaintiffs”). 15 See Dkt. 80 at 14 (arguing that “[j]udicial second-guessing” of the Executive Order “would constitute an impermissible intrusion on the political branches’ plenary constitutional authority over foreign affairs, national security, and immigration”). 16 See Tr. of Hearing (Feb. 10, 2017) at 38:21-23 (“What [the court] cannot review and what the Government, I have to, I have to toe this line, is national security judgments delegated to the president . . . .”); see also id. at 35:19-25, 36:1-4 (“MR. REUVENI: Well, that’s really the heart of the case, Your Honor. That’s really the heart of the case. What branch of Government has the authority to make national security determinations?”). 17 Dkt. 111 at 10.
4

Case 1:17-cv-00116-LMB-TCB Document 117 Filed 03/15/17 Page 5 of 7 PageID# 1437
“This is a familiar judicial exercise.” Zivitovsky [v. Clinton], 566 U.S. [189] at 196 [(2012)]. “At least since Marbury v. Madison, [the Supreme Court] has recognized that when” government action “is alleged to conflict with the Constitution, ‘it is emphatically the province and duty of the judicial department to say what the law is.’” Id. (quoting Marbury, 1 Cranch 137, 177 (1803)). “That duty will sometimes involve the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches,’ but courts cannot avoid their responsibility merely ‘because the issues have political implications.’” Id. (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)).18 The Court explained: “‘the Supreme Court has repeatedly and explicitly rejected the notion that the political branches . . . are not subject to the Constitution when policymaking in [the immigration] context.’”19 Because Professor Williams’s only arguments duplicate those raised by the Government and rejected by the Court, it would not be useful to consider his brief now. As Judge Rakoff aptly reasoned, such belated filings are truly not “friend of the court” briefs: An amicus curiae proves true to its name as a “friend of the court” when it offers a fresh perspective on an unsettled question of law that the actual parties to the litigation have not fully addressed. Here, however, Russia seeks to comment on matters that have already been decided or that are not truly in issue, and the Court sees no benefit in allowing it do so.20 The untimely and unhelpful amicus brief proposed here should be declined for the same reasons.
CONCLUSION Professor Williams’s motion for leave to file an amicus brief should be denied.
18 Id. 19 Id. at 12 (quoting Washington v. Trump, 847 F.3d 1151, 1162 (9th Cir. 2017)). 20 Yaroshenko, 86 F. Supp. 3d at 290-91.
5

Case 1:17-cv-00116-LMB-TCB Document 117 Filed 03/15/17 Page 6 of 7 PageID# 1438

Mark R. Herring Attorney General of Virginia
Stuart A. Raphael (VSB #30380) Solicitor General E-mail: sraphael@oag.state.va.us
Matthew R. McGuire (VSB #84194) Assistant Attorney General E-mail: mmcguire@oag.state.va.us

Respectfully submitted,
THE COMMONWEALTH OF VIRGINIA
By: /s/ Trevor S. Cox (VSB #78396) Deputy Solicitor General Office of the Attorney General 202 North Ninth Street Richmond, Virginia 23219 (804) 786-7704 – Telephone (804) 371-0200 – Facsimile tcox@oag.state.va.us

6

Case 1:17-cv-00116-LMB-TCB Document 117 Filed 03/15/17 Page 7 of 7 PageID# 1439
CERTIFICATE OF SERVICE I hereby certify that on March 15, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to counsel of record, and sent the foregoing to counsel listed below by electronic mail and by firstclass U.S. mail, postage pre-paid: Victor Williams America First Lawyers Association 5209 Baltimore Avenue Bethesda, MD 20816 americanfirstlawyers@gmail.com
By: /s/ Trevor S. Cox

 
 Case 1:17-cv-00116-LMB-TCB Document 118 Filed 03/17/17 Page 1 of 14 PageID# 1440

UNITED STATES DISRICT COURT FOR THE EASTERN DISTRICT OF VIRGINA ~

~ .

. ..

TAREQ AZIZ, et al,
Plaintiffs/Petitioners
v.

r

MAR I 72017

J

i

lc::

I

-·;-· ~--·- --

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.. -'- '..' -. ·--;

No. 1:17-cv-0116(LMB/TCB)

DONALD TRUMP, President ofthe United States, et al., Defendants/Respondents

AMENDED MOTION (AND RESPONSE TO INTERVENOR COMMONWEALTH OF VIRGINIA'S OBJECTION TO
PRIOR REQUEST) FOR LEAVE TO FILE AMICUS BRIEF AND PROFFERED AMENDED BRIEF RAISING POLITICAL QUESTION
NONJUSTICIABILITY,FROM PROFESSOR VICTOR WILLIAMS OF THE AMERICA FIRST LAWYERS ASSOCATION, IN SUPPORT OF PRESIDENT DONALD J. TRUMP
Victor Williams, Appearing Pro Se
America First Lawyers Association www.americafirstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 americafirstlawyers@gmail.com

1

Case 1:17-cv-00116-LMB-TCB Document 118 Filed 03/17/17 Page 2 of 14 PageID# 1441
Comes now Professor Victor Williams with this amended motion seeking leave of the Court to file an amended amicus curiae brief (attached) in support of the Defendants. This amended motion with proffered amended brief also serves to respond to Intervenor Commonwealth ofVirginia's filed objection (May 15, 2017) to Amicus's original motion requesting leave.
As before, Amicus respectfully asserts that this Court does not have subject matter jurisdiction in this action as the case presents a nonjusticiable political question. See Smith v. Reagan, 844 F.2d 195 (4th Cir. 1988). Of course, this Court does have discretion to access it's jurisdiction at any stage of the litigation. Amicus respectfully argues that the preliminary injunction is due to lifted and the action immediately dismissed.
As before, the proposed brief has unique information and perspective that can help the Court beyond the help that the lawyers for the parties have thus far provided. Prospective Amicus has strong interest in the action and asks this Court to exercise its inherent authority to allow the filing -just as it has with Amicus briefs supporting the Plaintiffs in this action Stuart v. Huff, 706 F.3d 345 (4th Cir. 2013) and Yamaha Motors, USA v. Jim's Motorcycles, 401 F.3d 465 (4th Cir. 2005).
2

Case 1:17-cv-00116-LMB-TCB Document 118 Filed 03/17/17 Page 3 of 14 PageID# 1442
Contrary to the objections ofthe Intervenor Commonwealth of Virginia, counsel for the Defendants did not argue political-question nonjusticiability in briefing or during oral arguments. At most, Defendants' counsel made reference to the political and national-security nature ofthe controversy. However, the Defendants' counsel did so only in the context of how much discretion the Court should give the Executive Branch's interpretation of immigration law and policy. Indeed counsel explicitly limited his reference to its relevance to statutory analysis.
A genuine, threshold political-question analysis and determination of nonjusticiability would, of course, preclude any such a review of the relevant immigration statute, immigration policies, or any analysis of other claims.
That is exactly why this Court's Memorandum Opinion states "defendants appear to be invoking the political question doctrine." (emphasis added).
Intervenor Commonwealth of Virginia did not include, and must have just overlooked, the Court's deliberate use of the language "appear to be invoking" in its (mis)quotation from the Court's Memorandum Opinion.
Contrary to the objections of the Intervenor Commonwealth of Virginia, it is not clear at all to this proposed Amicus that this Court squarely decided the issue of political-question nonjusticiablity of this particular action. The Court was without competent argument by Defendant's counsel, or that of any party or amicus, regarding such nonjusticiability in this particular action.
3

Case 1:17-cv-00116-LMB-TCB Document 118 Filed 03/17/17 Page 4 of 14 PageID# 1443
Alternatively, if the Court's Memorandum Opinion should be read as a fulsome political-question determination, Amicus most respectfully asserts that this Court should reconsider such - after allowing for appropriate opportunity for briefmg. Amicus' proffered amended brief respectfully begins this process -particularly as to the Fourth Circuit's warnings to judges about answering political questions in the national security and foreign policy context. The amended amicus brief specifically explains why Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012) does not support a finding ofjusticiability in the instant action.
Contrary to the objections ofthe Intervenor Commonwealth of Virginia, Amicus was not before -- and is not now -- untimely in seeking to raise this matter with the Court. As noted, it is well established that a court has right and obligation to fully consider questions regarding its subject-matter jurisdiction at any stage of litigation or adjudication - even after a case is final. So, this filing is offered genuinely in the spirit of a "friend of the court" brief.
UNIQUE CONTRIBUTION OF THE AMICUS BREIF
Prospective Amicus offers that the proffered amended brief will make a valuable contribution to the existing briefing in this case as it presents an alternatively focused theory asserting that the claims raise a nonjusticiable political question. The Fourth Circuit has specifically warned about just such information-
4

Case 1:17-cv-00116-LMB-TCB Document 118 Filed 03/17/17 Page 5 of 14 PageID# 1444
dependent national security and foreign policy cases where a judge is: asked to make determinations of fact in an area where the judiciary lacks power to obtain information, and in which it has neither expertise to evaluate the information brought before it nor standards to guide its review....These difficulties lead us to conclude that this suit presents a nonjusticiable political question."
Smith v. Reagan, 844 F.2d 195 (4th Cir. 1988). In its 2016 Mobarez v. Kerry ruling, the District Court for the District of
Columbia explained that it could not review just such a decision by Barack Obama which the president made in a diplomatic, foreign policy, and military context. When deciding to shutter the U.S. Embassy in Yemen, President Obama refused to facilitate the exit and safe travels of American citizens from the horrific conditions in Yemen back to American soil. The court refused to reach the plaintiffs' requested statutory interpretation and APA process analysis that supported their right to such travel assistance because such interpretation, inquiry, and analysis would have required the court to answer a political question:
But the question that Plaintiffs' APA claim poses is not just what these provisions mean; it is also whether, if they mean what Plaintiffs say they mean, the Executive has violated the mandate that these provisions establish, and it is that aspect of the court's inquiry that would necessarily require the court to answer a non-justiciable political question....
5

Case 1:17-cv-00116-LMB-TCB Document 118 Filed 03/17/17 Page 6 of 14 PageID# 1445
Mobarez v. Kerry, Civil Action No. 2015-0516 (D.D.C. 2016). The court would not second guess the president's admittedly-strange decision not to help America's own citizen travel back to America.
The ruling acknowledged that the court did not have the institutional competence or critical information required to judge the dangerous conditions in Yemen - and thus it refused to second guess the president's refusal to provide evacuation processes when closing the embassy. Similarly, in the instant case, the president has determined that the dangerous, violent, and absurdly chaotic conditions exist in Yemen and other listed nations are such that the Executive Branch must freeze travel by aliens from those nations. Amicus respectfully asserts that just as the judiciary may not second guess the president's refusal to provide for embassy evacuations of American citizens out of Yemen, neither should it second guess the new president's refusal to allow embassy/consular processing of visa applications for aliens in Yemen and other of the listed nations. In accessing that perpetually violent region of the world, this Court does not have better institutional competence, or better military strategy, or better classified information than does the Executive Branch.
In Mobarez, the court used Zivotofsky v. Clinton, 132 S.Ct. 1421 (2012), to explain why political-question abstention, notwithstanding the American-citizen
6

Case 1:17-cv-00116-LMB-TCB Document 118 Filed 03/17/17 Page 7 of 14 PageID# 1446
plaintiffs' reliance on a federal statute, executive order, and memorandum of
understanding, was required:
When deciding the claim merely requires the court to engage in garden-variety statutory analysis and constitutional reasoning, [the court] has authority to do so (i.e., the claim is justiciable), but a claim that goes beyond those classically judicial functions to request that a court override discretionary foreign-policy decisions that the political branches have made-however framed-falls within the heartland ofthe political-question doctrine. ...
In the final analysis, then, this Court concludes that Plaintiffs' claims would necessarily require the Court to "supplant a foreign policy decision ofthe political branches with [this Court's] own unmoored determination" of whether the situation calls for evacuation in a manner that renders Plaintiffs' claims nonjusticiable under the political question doctrine....
[T]the 'strategic choices directing the nation's foreign affairs are constitutionally committed to the political branches[,]'and once it becomes clear that a plaintiffwishes the courts to 'reconsider the wisdom of discretionary foreign policy decisions[,]' the judicial inquiry must end. Id. (quoting Zivotofsky v. Clinton, 132 S.Ct. 1421, 1427 (2012) and (quoting El-
Shifa v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010) (en bane)).
The District of Columbia District Court, earlier in 2016, in the context of
Yemen nationals who asserted a directly-relevant federal tort claim statute to seek
relief from injuries that resulted from American national security actions in the
Yemen, stated: "If plaintiffs' claims, 'regardless of how they are styled, call into
question the prudence of the political branches in matters of foreign policy or
national security,' then they must be dismissed." Jaber v. United States, No. 15-
7

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0840, 2016 WL 706183, at *4 (D.D.C. Feb. 22, 2016) (quoting El-Shifa, 607 F.3d at 841).
It was in respect for the separation of powers that the court refused to second-guess President Obama's decision to launch drone strikes which killed and wounded Yemen nationals. The court was not competent to analyze the military and classified information needed to review the tort-claims statutory claims. /d. Similarly, President Trump's calculus in judging the hellish conditions presently existing in Yemen, and other listed nations, and his decision to temporarily freeze Yemen nationals, and those from the other listed nations. from obtaining a visa and/or gaining actual entry onto American soil is nonjusticiable.
Otherwise, we would eventually reach the absurd result of a U.S. District
Court asserting authority to suspend (or ex post compensate for) the president's
drone strikes in Yemen (and other nations on the list) for fear (or in the event) the strikes kill Yemen nationals studying for their SAT, GRE or LSAT exams and thus dening Intervenor-Plaintiffs tuition dollars from those individuals--- who might be prospective or returning students. And, worse still, William and Mary or the University ofVirginia might be denied faculty personnel from Yemen or other of the six listed nations.
8

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In an ex ante application in military action, such absurd consequent would require the president (and his military officers) to meet with the judiciary and perhaps admissions officials from Thomas Jefferson's alma mater and "Mr. Jefferson's University" prior to launching any drone strikes in the war on terror.
There are no judicially manageable standards by which this Court can endeavor to assess the President's interpretation of classified and military intelligence and his resulting decision-based on that intelligence-whether to restrict entry of foreign-soil aliens visiting from certain terrorist-breeding nations.
The travel freeze is implemented as a matter of the president's war-strategy, national-security, and foreign-policy calculus- and not as a matter of ordinary immigration procedure or immigration law enforcement. The president's calculus that led to the immediate travel freeze also includes longer-term policy objectives. The travel freeze has varied objectives - lawyered - with only some patent. Obviously, the new president sends a strong war-related foreign policy signal to all nations-- "friends and foe alike"-- regarding his "America first" foreign policy shift first formally announced in his Inaugural Address. The Executive Order explicitly gives notice to the world that the freeze list can both contract and expand. This is an establishment of military strategy and foreign policy - at its core.
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STATEMENT OF IDENTITY, INTEREST AND AUTHORITY OF AMICUS
Appealing to the Court's broad discretion to allow such a filing, Amicus
avers his significant interest in this case and suggests that the proffered brief will be of unique assistance to the Court. Professor Victor Williams is a Washington, D.C. attorney and law professor with over twenty years' experience-- formerly affiliated as fulltime faculty with both the Catholic University of America's Columbus School of Law and the City University ofNew York's John Jay College of Criminal Justice. Professor Williams has particular knowledge and expertise regarding the text, history, and interpretation of Article II and Article III ofthe U.S. Constitution with many scholarly and popular publications. He earned his J.D. from the University of California-Hastings College of the Law. After completing an extemship with both Ninth Circuit Judge Joseph Sneed and Eleventh Circuit Judge Gerald Bard Tjoflat and a two-year clerkship with Judge Brevard Hand ofthe Southern District ofAlabama, Williams did advanced training in federal jurisdiction and international law {LL.M.) from Columbia University's
10

Case 1:17-cv-00116-LMB-TCB Document 118 Filed 03/17/17 Page 11 of 14 PageID# 1450
School ofLaw and in economic analysis ofthe law (LL.M.) from George Mason University's Scalia School ofLaw.
In past, Professor Victor Williams has been granted leave to file amicus briefs in other lower courts as well as by the U.S. Supreme Court. Professor Williams has published scholarship and commentary that offered strong support for the constitutional discretion and prerogatives ofthe past four presidents (without regard to their party affiliation). Professor Williams zealously advocated for timely Senate confirmation ofthe judicial and executive nominees of both George W. Bush and Barack Obama. Although these past presidents often pursued policy ends at odds with Professor Williams' personal policy preferences, he continued to defend their constitutional authority.
But now, Professor Williams' acknowledges that his ultimate policy preference to always "put America first" is clearly reflected in President Trump's agenda and early actions. Williams was an early primary supporter of candidate Donald Trump. In spring 2016, Williams launched a widely-reported legal action, after obtaining "competitor candidate standing" as a write-in candidate in several late primary states, to challenge the ballot eligibility of (naturally-born Canadian) Ted Cruz. (www.victorwilliamsforpresident.com). See e.g., Debra Weiss, Law Profa Write-In GOP Candidate to Challenge Ted Cruz Eligibility, ABA JOURNAL, April11, 2016,
11

Case 1:17-cv-00116-LMB-TCB Document 118 Filed 03/17/17 Page 12 of 14 PageID# 1451
http://www.abajournal.com/news/article/law prof enters gop presidential race t o challenge ted cruzs eligibility/ and Pete Williams, Law Professor Challenges Cruz on Citizenship, Candidacy, NBC NEWS, April11, 2016, http://www .nbcnews.coinlnews/us-news/law-professor-candidate-challenges-cruzcitizenship-n5 54046.
After Senator Cruz withdrew from the GOP primary, Professor Williams also withdrew from the primary race, formerly endorsed Donald Trump, and founded Super PAC (GOP Lawyers) rallying Lawyers and Law Professors (www.goplawyers.com) to support Donald Trump in the general election. See Victor Williams, Trump Will Bring Return to Rule ofLaw and Economic Growth,
THE HILL, Nov. 6, 2016. http://thehill.com/blogs/pundits-blog/presidential-
campaign/304291-trump-will-bring-return-to-rule-of-law-and-economic, Victor
Williams, Law Professor Now Proudly in Basket ofDeplorables, THE HILL, Sept.
20, 2016, http://thehill.com/blogs/pundits-blog/presidential-campaign/296783-lawprof-once-an-obama-supporter-now-in-basket-of, and Inside the Beltway: 'Lawyers for Trump' Founded" WASH. TIMES, July 4, 2016.
The campaign group has now transformed into the "America First Lawyers Association" (www.americafirstlawyers.com) which Professor Williams chairs, to advance the Trump administration's "America first" nominations, policies, and programs.
12

Case 1:17-cv-00116-LMB-TCB Document 118 Filed 03/17/17 Page 13 of 14 PageID# 1452
CONCLUSION
The Court's inquiry necessitated by this action is barred by the patent political question presented, and any assertion by that such inquiry is necessary to a second-order analysis of statutory, policy, or specious constitutional claims would not make the inquiry or the controversy justiciable. El-Shifa v. United States, 607 F.3d 836 (D.C. Cir. 2010) (en bane).
If a case presents a political question, the judiciary lacks subject matter jurisdiction to decide that question. See Victor Williams, Travel Ban Challenges Present a Non-Reviewable Political Question, JURIST- Forum, Feb.15, 2017. http://jurist.org/forum/20 17/02Nictor-Williams-travel-ban.php Amicus thus most
respectfully requests leave to file the attached amended amicus brief and further stands ready to participate in future oral argument to better present this argument if the Court deems fit. Submitted on March 17,2017.
,dOSE
America First Lawyers Association www.americafirstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 americafirstlawyers@gmail.com
13

Case 1:17-cv-00116-LMB-TCB Document 118 Filed 03/17/17 Page 14 of 14 PageID# 1453
CERTIFICATE OF SERVICE
I hereby certify that on March 17, 201 7, the foregoing motion with proposed brief
was filed with the Clerk of this Court using the Federal Express courier (as pro se prospective Amicus is not a registered ECF user) and served on parties by
electronic transmission using the email addresses registered with their ECF accounts. America First Lawyers Association www.americafirstlawyers.com 5209 Baltimore Ave, Bethesda, IviD 20816 (301) 951-9045
14

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 1 of 45 PageID# 1454

UNITED STATES DISRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINA

r--. -·
i ~ r

TAREQ AZIZ, eta/, Plaintiffs/Petitioners

II

II

I !MAR I 7 2017

I t

C I

11 I

I

v.

No. 1:17-cv-0116(Ll\ffi/TCB)

DONALD TRUMP, President ofthe United States, et al., Defendants/Respondents

RAISING POLITICAL QUESTION NONJUSTICIABILITY, AMENDED AMICUS BRIEF FROM PROFESSOR VICTOR WILLIAMS,
OF THE AMERICA FIRST LAWYERS ASSOCATION, IN SUPPORT OF PRESIDENT DONALD TRUMP
Victor Williams, Appearing Pro Se
America First Lawyers Association www.americafirstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 americafirstlawyers@gmail.com

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 2 of 45 PageID# 1455
CERTIFICATE AS TO PARTIES & RELATED CASES A. Parties and Amici. All parties, interveners, and amici appearing in this Court are listed in party briefing except that this brief is filed on behalf of Professor Victor Williams in support ofDefendants. B. Related Cases. Other related cases of which Amicus is aware are referenced in the briefing offered by parties.
America First Lawyers Association www.americafirstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 americafirstlawyers@gmail.com
ii

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 3 of 45 PageID# 1456

TABLE OF CONTENTS

Page

Certificate as to Parties, Rulings and Related Cases .....................................ii Table of Contents............................................................................iii Table ofAutllorities......................................................................iv,v,vi Statement ofAuthorship and Financial Contribution.......................................vii Statement ofIdentity, Interest and Authority ofAmicus............................... .1-4 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-3 5 ~erti:ficate of Service...........................·.............................................36

iii

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 4 of 45 PageID# 1457

Cases:

TABLE OF AUTHORITIES

Page(s)

Alaska v. Kerry, 912 F. Supp. 1111 (D. Alaska 2013)..................................23

Aktepe v. United States: 105 F.3d 1400 (11th Cir. 1997)................................19 Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990)................................28

Baker v. Carr, 369, U.S. 186 (1962)................................................24,25,27

Boumediene v. Bush, 553 US 723 (2008)................................................29

Chicago & Southern Airlines v. Waterman 333 U.S. 103 (1948)......................8 Ctr.for Biological Diversity v. Hagel, 80 F. Supp. 991 (N.D. Cal. 2016) .........23

DaCosta v. Laird, 471 F.2d 1146 (2nd Cir. 1973).......................................9

El-Shifa v. United States, 607 F.3d 836 (D.C. Cir. 2010) (en banc)...........13,14,33

Goldwater

v.

Cart. er,

44

U.S.

996

{1979)

.

.

.

.

..

.

..

.

..

.

..

.

..

.

..

.

..

.

..

.

..

...
.

.

..

.

..

.

..

.

. 29,30·

Harisiades v. Shaughnessy, 342 U.S. 580 (1952)...................................... 16

Jaber v. United States, 2016 WL 706183 (D.D.C. Feb. 22, 2016).................13,14

Kleindienstv. Mandel, 408 U.S. 753, 765 (1972)............................................ 7

Landon v. Plasencia, 459 U.S. 32 (1982).................................................7.

LegalAssistancefor Vietnamese AsylumSeekers v. Dep 't ofState, Bureau ofConsular Affairs, 104 F.3d 1349 (D.C. Cir. 1997) .......................27,28

Lowry v. Regan, 616 F. Supp. 333 (D.D.C. 1987)......................................27

Marbury v. Madison, 5 U.S. 137 (1803)..................................................20,24,34
Mobarez v. Kerry, Civil Action No. 2015-0516 (D.D.C. 2016)..............................................................................7,8,11, 23

iv

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 5 of 45 PageID# 1458

Cases:

TABLE OF AUTHO~TIES (continued)

Page(s)

McCleskey v. Kemp, 481 U.S. 279 (1987).............................................. 19, 29

Miami Nation ofIndians v. Interior, 255 F.3d 342 (7th Cir. 2001)...............19,20

Nixon v. United States, 506 U.S. 224 (1993)........................................27,28

Nixon v. United States, 938 F.2d 239 (D.C. Cir. 1991)..............................31 ,32

Oetjen v. Central Leather Co., 246 U.S. 297 (1918)....................................24

Rasul v. Bush, 542 U.S. 446 (2004)........................................................28

Smith v. Reagan, 844 F.2d 195 (4th Cir. 1988)........................................9,27

Snider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005).................................25

United States v. Verdugo-·Urquidez, 494 U.S. 259,269 (1990).................·......19,28

Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)...........................................29

Zivotofsky v. Clinton, 132 S.Ct. 1421 (2012)............................. 12,13,21,22,23

Constitutions/Statutes/Executive Orders

Page(s):

U.S. Const.

art. n, § 1 ..........................................................................................23 art. n, § 2 .............................................................................................................1,23

amend. XII, § I ............................................................................34

Exec. Order No. 13780 (March 6, 2017) (titled: Protecting the Nation from Foreign Terrorist Entry into the United States) ............................. .11,16,17,18

v

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 6 of 45 PageID# 1459

TABLE OF AUTHORITIES (continued)

Other

Page(s):

Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLffiCS {Yale 1986) oooooooooooooooooooooo.o.o.. oooooo.o.. ooooo. ooo.oo31,32

Mathew Boyle, Senate-Committee: 580 Terror Convictions

Since 2001, BREITBARTNEWS, June 22, 2016http://wwwobreitbart.com/big-

govemment/20 16/06/22/senate-committee-5 80-terror-convictions-in-u-s-since-

911-380-terrorists-are-foreign-born/. oo.. o...... 16,17 0

0 ••••• 0 ••••• 0 ..........................

Stephen Dinan, Trump Says Extreme Vetting Pause Is Same as Obama 's 2011 Iraq Policy, WASH. TIMEs, Jan. 29,2017,
http://www.washingtontimes.com/news/2017/jan/29/trump-says-extreme-vettingpause-sam.e-obam.as-20 11-/....................................................................................... 6

Stephen Dinan, Somali/and Pleads To Be Removedfrom . Trump's Extreme Vetting List, WASH. TIMEs, :M;ar. 9, 2017, http://www.washingtontimes.com/news/20 17/mar/9/somalia-pleads-be-removedextreme-vetting-list/ . . . . . . . . . . . . . 11 0 •••••••••••••••••••••• 0 •••••••• 0 • 0 •••••• 0 0 ••••••• 0 •• 0 •••••
Alexander Hamilton, No. 23: The Necessity ofa Government as Energetic as the One Proposed to the Preservation ofthe Union, in Clinton Rossiter, ed., THE FEDERALIST PAPERS {New York: Mentor, 1999)o.oo........... o............... o.........24

Inside the Beltway: 'Lawyers for Trump' Founded" WASH. TIMEs, July 4, 2016....3

Nan Levinson, WAR IS NOT AGAME: THE NEW ANTIWAR SOLDIERS AND THE MOVEfviENT THEY CREATED (Rutgers 2014)...............................................5

Speech ofthe Honorable John Marshall (Mar. 7, 1800)(cited by The Political Question Doctrine and the Supreme Court ofthe United States (Nada Mourtada-Sabbah and Bruce E. Cain, eds.)(2007).............. 0 20 •••••••••••••••
Joseph R. Nye, Get Smart: Combining Hard and Soft Power 88 FOREIGN AFFAIRS 160 (2~09), http://www.jstor.org/stable/20699631 ................................................ 10

vi

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 7 of 45 PageID# 1460

TABLE OF AUTHORITIES (continued)

Other

Page(s):

Debra Weiss, Law Profa Write-In GOP Candidate to Challenge Ted Cruz Eligibility, ABA JOURNAL, April11, 2016,
http://www.abaiournal.com/news/articlellaw prof enters gop presidential race t o challenge ted cruzs eligibility/ .......................................................2

Pete Williams, Law Professor Challenges Cruz on Citizenship, Candidacy, NBC NEWS, April11, 2016. http://www.nbcnews.com/news/us-news/law-professorcandidate-challenges-cruz-citizenship-n554046. ........................................3

Victor Williams, Travel Ban Challenges Present a Non-Reviewable Political Question, JURIST- FORUM, Feb.15, 2017, http://jurist.org/forum/2017/02Nictor-Williams-travel-ban.php .......................... 15

Victor .Williams, D. C. Law Professor Makes Case for Sessions' Senate Confirmation, STREET INSIDER, Jan. 9~ 2017, http:l/markets.fmancialcontent.com/streetinsider/news/read/33555004 ..................3

Victor Williams, Trump Will Bring Return to Rule ofLaw and Economic Growth, THE HILL, Nov. 6, 2016. http://thehill.com/blogs/pundits-blog/presidentialcampaign/304291-trump-will-bring-return-to-rule-of-law-and-economic ...............3

Victor Williams, Law Profossor Now Proudly in Basket ofDeplorables, THE HILL, Sept. 20, 2016, http://thehill.com/blogs/pundits-blog/presidentialcampaign/296783-law-prof-once-an-obama-supporter-now-in-basket-of ...............3

vii

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 8 of 45 PageID# 1461
STATEMENT OF AUTHORSHIP, LENGTH, AND FINANCIAL CONTRIBUTION
This brief is offered by Amicus as an individual. Institutional affiliation is offered only for informational pwposes. It is presented in 14 point, New Times Roman font with Argument section totaling 7182 words. No party's counsel authored this brief in whole or in part, and no party, nor other person, contributed money intended to fund the preparation or submission ofthis brief.
viii

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 9 of 45 PageID# 1462
. ·~-
ix

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 10 of 45 PageID# 1463
STATEMENT OF IDENTITY, INTEREST AND AUTHORITY OF AMICUS
Appealing to the Court's broad discretion to allow an amicus filing, Amicus
avers his significant interest in this case and suggests that the proffered brief will be of unique assistance to the Court. Defendants do not oppose, and Plaintiffs have not responded to query about, the attached Motion respectfully seeking leave
of the Court to file this amicus curiae brief. Professor Victor Williams is a
Washington, D.C. attorney and law professor with over twenty years' experience-formerly affiliated as fulltime faculty with both the Catholic University of America's Columbus School ofLaw and the City University ofNew York's John Jay College of Criminal Justice. Professor Williams has particular knowledge and expertise regarding the text, history, and interpretation of Article II and Article III of the U.S. Constitution with many scholarly and popular publications. He earned his J.D. from the University of California-Hastings College of the Law. After completing an externship with both Ninth Circuit Judge Joseph Sneed and Eleventh Circuit Judge Gerald Bard Tjoflat and a two-year clerkship with Judge Brevard Hand ofthe Southern District of Alabama, Williams did advanced training in federal jurisdiction and international law (LL.M.) from Columbia University's School of Law and in economic analysis of the law (LL.M.) from George Mason University's Scalia School of Law.
1

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 11 of 45 PageID# 1464
In past, Professor Victor Williams has been granted leave to file amicus briefs in other lower courts as well as by the U.S. Supreme Court. Professor Williams has published scholarship and commentary that offered strong support for the constitutional discretion and prerogatives ofthe past four presidents (without regard to their party affiliation). Professor Williams zealously advocated for timely Senate confirmation ofthe judicial and executive nominees of both George W. Bush and Barack Obama. Although these past presidents often pursued policy ends at odds with Professor Williams' personal policy preferences, he continued to defend their constitutional authority.
But now, Professor Williams' acknowledges that his ultimate policy pr~ference to always "put America first" is clearly.reflected in President Trump's agenda and early actions. Williams was an early primary supporter of candidate Donald Trump. In spring 2016, Williams launched a widely-reported legal action, after obtaining "competitor candidate standing" as a write-in candidate in several late primary states, to challenge the ballot eligibility of (naturally-born Canadian) Ted Cruz. (www.victorwilliamsforpresident.com). See e.g., Debra Weiss, Law Profa Write-In GOP Candidate to Challenge Ted Cruz Eligibility, ABA JOURNAL, April11, 2016, http://www.abajoumal.com/news/articlellaw prof enters gop presidential race t o challenge ted cruzs eligibility/ and Pete Williams, Law Professor Challenges
2

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 12 of 45 PageID# 1465
Cruz on Citizenship, Candidacy, NBC NEWS, April11, 2016, http://www.nbcnews.com/news/us-news/law-professor-candidate-challenges-cruzcitizenship-n5 54046.
After Senator Cruz withdrew from the GOP primary, Professor Williams also withdrew from the primary race, formerly endorsed Donald Trump, and founded Super PAC (GOP Lawyers) rallying Lawyers and Law Professors (www.goplawyers.com) to support Donald Trump in the general election. See Victor Williams, Trump Will Bring Return to Rule ofLaw and Economic Growth, THE HILL, Nov. 6, 2016. http://thehill.com/blogs/pundits-blog/presidentialcampaign/304291-trump-will-bring-return-to-rule-of-law-and-economic , Victor Williams, Law Professor Now Proudly in.Basket ofDeplorables, THE HILL, Sept. 20, 2016, http://thehill.com/blogs/pundits-blog/presidential-campaign/296783-lawprof-once-an-obama-supporter-now-in-basket-of, and Inside the Beltway: 'Lawyers for Trump' Founded" WASH. TIMEs, July 4, 2016.
The campaign group has now transformed into the "America First Lawyers Association" (www.am.ericafrrstlawyers.com) which Professor Williams chairs, to advance the Trump administration's "America first" nominations, policies, and programs. See e.g. Victor Williams, D. C. Law Professor Makes Case for Sessions' Senate Confirmation, STREET INSIDER, Jan. 9, 2017, http://markets.financialcontent.com/streetinsider/news/read/33555004
3

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 13 of 45 PageID# 1466
Amicus submits that the proffered brief will make a valuable contribution to the existing briefing in this case as it presents an alternatively focused theory asserting that the claims against the president's travel freeze raise a nonjusticiable political question- thus this Court does not have subject matter jurisdiction.
Submitted on March 17, 2017
America First Lawyers Association www.americafi.rstlawyers.com 5209 Baltimore Ave, Bethesda, :MD 20816 {301) 951-9045 americafirstlawyers@gmail.com
4

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 14 of 45 PageID# 1467
ARGUMENT
Supporting Defendants' arguments, Amicus submits an alternative theory: This action is due for immediate dismissal as it presents a nonjusticiable political question. Amicus first acknowledges, however, the emotionally-compelling narratives regarding the aliens at issue in the instant action and in related cases filed throughout the nation. The aliens seeking entry onto American soil come from nations beset with evil oppression, state-sponsored terrorism, violent domestic disorder, and religious civil wars. Adequate reasons are presented to explain the aliens' desired entry; often involving being reunited with loved ones. Yet, these aliens seek entry into America as our nation continues to be in a prolonged war with radical terrorists, many of whom have come from those very same nations. Since September 11, 2001, over 40 terrorists from the six listed nations, are among 380 foreign-born terrorists, who have been charged, tried, and convicted of terrorist acts in the United States. Our new president instituted the travel freeze both to better prosecute this war on terror and to fundamentally shift American foreign policy related to the war. Although no salve for those who suffer, William Tecumseh Sherman's missive applies: "I am sick and tired of war. Its glory is all moonshine....War is hell." Nan Levinson, WAR IS NoT A GAME: THE NEW ANTIWAR SOLDIERS AND THE MOVEMENT THEY CREATED 13 {Rutgers 2014).
5

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 15 of 45 PageID# 1468
Just as did Barack Obama for eight years, our new president is engaging in a delicate national security and foreign policy calculus as he begins to prosecute the unprecedented, prolonged war with terrorists from these six nations and other nations of the region. Stephen Dinan, Trump Says Extreme Vetting Pause Is Same as Obama's 2011 Iraq Policy, WASH. TIMES, Jan. 29,2017, http://www. washingtontimes.com/news/20 17/jan/29/trump-says-extreme-vettingpause-same-obamas-20 11-/.
As a matter of first-order determination, this Court is barred from making an inquiry into the Executive Branch's war-prosecution calculus. Assertion that such an inquiry is necessary for the Court to conduct a second-order analysis of immigration statutes, Administrative Procedure Act (APA) immigration processes, or specious constitutional claims does not make that inquiry or the controversy justiciable. Assertion of specious claims from American citizens, businesses, or sovereign States, that they suffer tangent harm from the implementation of the travel freeze, or equally specious claims of broad due process, equal protection, and religious discrimination violations arising from the travel freeze, do not make this controversy justiciable. This Court must immediately dismiss the instant acti~n (and all related pending and subsequent actions) raising such claims.
6

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 16 of 45 PageID# 1469
In various factual contexts, the Supreme Court has repeatedly ruled: "[A]n alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative." Landon v. Plasencia, 459 U.S. 21, 32 (1982). In implementing the travel freeze, President Trump acts within his inherent and exclusive Article IT,§ 2 authorities as Commander-in-Chief during a time ofwar.
The president acts with an authority that the Supreme Court recognizes as "inherent in [the nation's] sovereignty, necessary for maintaining normal international relations and defending the country against foregin encroachments and dangers - a power to be exercised exclusively by the political branches of government." Kleindienstv. Mande/,.408 U.S. 753,765 (1972) (quotation marks omitted); accord Knauffv. Shaughnessy, 338 U.S. 537, 542 (1950).
In its 2016 Mobarez v. Kerry ruling, the District Court for the District of Columbia explained that it could not review just such a decision by Barack Obama which the president made in a diplomatic, foreign policy, and military context. When deciding to shutter the U.S. Embassy in Yemen, President Obama refused to facilitate the exit and safe travels of American citizens from the horrific conditions in Yemen back to American soil. The court refused to reach the plaintiffs' requested statutory interpretation-and APA process analysis that supported their
7

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 17 of 45 PageID# 1470
.right to such travel assistance because such interpretation, inquiry, and analysis would have required the court to answer a political question:
But the question that Plaintiffs' APA claim poses is not just what these provisions mean; it is also whether, ifthey mean what Plaintiffs say they mean, the Executive has violated the mandate that these provisions establish, and it is that aspect ofthe court's inquiry that would necessarily require the court to answer a non-justiciable political question. ... Mobarez v. Kerry, Civil Action No. 2015-0516 (D.D.C. 2016). The court would not second guess the president's admittedly-strange decision not to help America's own citizen travel back to America.
Associate Justice Robert Jackson in Chicago & Southern Airlines v. Waterman long ago recognized that foreign policy decisions "are delicate, complex, and involve large elements ofprophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil." 333 U.S. 103 111 (1948). Justice Jackson further emphasized that such "decisions are of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry." Id
Amicus respectfully asserts that in the instant action the Court will find no judicially manageable standards by which it can endeavor to assess our newlyelected president's interpretation of classified and military intelligence and his
8

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 18 of 45 PageID# 1471
resulting decision -- based on that intelligence -- to freeze entry of aliens from listed nations. See DaCosta v. Laird, 471 F.2d 1146 (2nd Cir. 1973).
The Fourth Circuit has specifically warned about just such information-rich national security and foreign policy litigation where a judge is:
asked to make determinations of fact in an area where the judiciary lacks power to obtain information, and in which it has neither expertise to evaluate the information brought before it nor standards to guide its review....These difficulties lead us to conclude that this suit presents a nonjusticiable political question." Smith v. Reagan, 844 F.2d 195 (4th Cir. 1988).
If the freeze is not implemented, this Court is not competent to assess the nature and fiscal costs of alternative national security measures that may be required to try to keep track of aliens allowed to enter from the listed nations. This Court is not competent to foresee the unintended national security and foreign policy consequences of such judicial interference in the war on terror.
The travel freeze is implemented as a matter of the president's war-strategy, national-security, and foreign-policy calculus- and not as a matter of ordinary immigration procedure or immigration law enforcement. The president's calculus that led to the immediate travel freeze also includes longer-term policy objectives. The travel freeze has varied objectives - lawyered - with only some patent.
9

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 19 of 45 PageID# 1472
But obviously, the new president sends a strong war-related policy signal to all nations-- "friends and foe alike"-- regarding his "America first" foreign policy shift first formally announced in his Inaugural Address. The travel freeze cues our NATO allies to reconsider their own porous national borders. The European nations' irresponsible failure to maintain their own sovereign borders has led to deadly terrorist acts and generally violent public spaces. Alien terrorists and would-be terrorist thugs who have been welcomed into Europe by its naive leaders now stand in European airports only a seven-hour direct flight away from the United States.
The freeze also directly confronts and disrupts expectations ofwealthy monarchs and potentates 9fthe Middle East. Those oil-rich kingdoms have long expected America to "pay any price, bear any burden" to deal with their own region's hellish disorder.1
1 One might hope that the travel freeze is the beginning of a disruptive application of an "America frrst" version of"smart power" theories; a disruptive move appropriate to this unusual, prolonged war. (For a traditional articulation of smart power theory, see Joseph R. Nye: Get Smart: Combining Hard and Soft Power 88 FOREIGN AFFAIRS 160 (2009)). Amicus certainly hopes that the travel freeze is the beginning of a correction in the government's over-reliance on a tired "carrot and stick" foreign-policy. As a part of a broader "America first" construct, perhaps the new policy will reject the wasteful acts ofrecent presidents who have spent endless American-tax-dollar "carrots" in foreign aid to ungrateful regimes. The same presidents have made even more shameful payments of brave military personnel used up like just so many "sticks" thrown into the Middle Eastern desert.
10

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 20 of 45 PageID# 1473
All nations ofthe world -- including our allies in Europe and our "frenemies" in the Middle East -- have been given explicit n~tice that at any point in future the travel freeze list may expand to include "the names of any additional countries recommended for similar treatment, as well as [to contract to remove] the names of any countries that ... should be removed from the scope of a proclamation." Exec. Order No. 13780 (March 6, 2017). Indeed, Iraq was able to reform its vetting cooperation so as not to be included in the March 6, 2017 list. See Stephen Dinan, Somali/and Pleads To Be Removedfrom Trump's Extreme Vetting List, WASH. TIMEs, Mar. 9, 2017, http://www.washingtontimes.com/news/20 17/mar/9/somalia-pleads-be-removedextreme-vetting:-list/.
Again, in its 2016 Mobarez v. Kerry ruling, the District Court for the District of Columbia recognized that it did not have jurisdiction to review President Obama's inherent and exclusive authority in matters of war strategy, national security, and foreign policy. Finding political question nonjusticiability, the court refused to examine statutory and APA based challenges to the Executive's decision to close the U.S. Embassy in Yemen without providing an exit strategy and travel arrangement for American citizens living in Yemen to safely return to American soil. Notwithstanding the compelling claims of American citizens (many who were Muslim in faith practice) that a federal statute
11

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 21 of 45 PageID# 1474

and APA processes required that the president ensure their travel security, the

Court refused to review the case. The ruling aclmowledged that the court did not

have the institutional competence or critical information required to judge the

dangerous conditions in Yemen - and thus it refused to second guess the

president's refusal to provide evacuation processes when closing the embassy.

Mobarez v. Kerry, Civil Action No. 2015-0516 (D.D.C. 2016).

Similarly, in the instant case, the president has determined that the

dangerous, violent, and absurdly chaotic conditions exist in Yemen and other listed

nations are such that the Executive Branch must freeze travel by aliens from those

nations. Amicus respectfully asserts that just as the judiciary may not second guess

the president's refusal to provide for embassy evacuations ofAmerican citizens out

ofYemen, neither should it second guess the new president's refusal to allow

embassy/consular processing ofvisa applications for aliens in Yemen and other of

the listed nations. In accessing that perpetually violent region ofthe world, this

C,ourt does not have be~er institutional competence, or better military strategy, or

better classified information than does the Executive Branch.

In Mobarez, the court used Zivotoftky v. ClintorJ,, 132 S.Ct. 1421 (2012),

to explain why political-question abstention, notwithstanding the American-citizen

plaintiffs' reliance on a federal statute, executive order, and memorandum of

understanding, was required:

~

12

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 22 of 45 PageID# 1475
When deciding the claim merely requires the court to engage in garden-variety statutory analysis and constitutional reasoning, [the court] has authority to do so (i.e., the claim is justiciable), but a claim that goes beyond those classically judicial functions to request that a court override discretionary foreign-policy decisions that the political branches .have made-however framed-falls within the heartland ofthe political-question doctrine. ...
In the final analysis, then, this Court concludes that Plaintiffs' claims would necessarily require the Court to "supplant a foreign policy decision ofthe political branches with [this Court's] own unmoored determination" of whether the situation calls for evacuation in a manner that renders Plaintiffs' claims nonjusticiable under the political question doctrine. . ..
[T]the 'strategic choices directing the nation's foreign affairs are constitutionally committed to the political branches[,]' and once it becomes clear that a plaintiffwishes the courts to 'reconsider the wisdom of discretionary foreign policy decisions[,]' the judicial inquiry must end.
!d. (quoting Zivotofsky v. Clinton, 132 S.Ct. 1421, 1427 (2012) and (quoting El-
Shifa v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010) (en bane)). [Additional
discussion of Zivotofsky v. Clinton's support for a nonjusticiability determination
in the instant case presented below at page 19.]
And consider also the District Court for the District of Columbia's political
question determination, made earlier in 2016, in the context of Yemen nationals
who asserted a directly-relevant federal tort claim statute to seek relief from
injuries that resulted from American national security actions in the Yemen:
"Ifplaintiffs' claims, 'regardless ofhow they are styled, call into question the
prudence ofthe political branches in matters of foreign policy or national security,'
13

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 23 of 45 PageID# 1476
then they must be dismissed." Jaber·v. United States, No. 15-0840,2016 WL 706183, at *4 (D.D.C. Feb. 22, 2016) (quoting El-Shifa, 607 F.3d at 841). It was
in respect for the separation of powers that the court refused to second guess President Obama's decision to launch drone strikes which killed and wounded Yemen nationals. The court was not competent to analyze the military and
classified information needed to review the tort-claims statutory claims. Id. Similarly, President Trump's calculus in judging the hellish conditions presently existing in Yemen, and other listed nations, and his decision temporarily freeze
Yemen nationals, and those from the other listed nations from obtaining a visa and/or gaining actual entry onto American soil is nonjusticiable.
The en bane D.C. Circuit has offered fulsome ·explanation as to why the federal judiciary should not review such matters: "The political question doctrine bars our review of claims that, regardless ofhow they are styled, call into question the prudence ofthe political branches in matters of foreign policy or national security constitutionally committed to their discretion." El-Shifa, 607 F.3d 836, 842-43 (D.C. Cir. 2010) (en bane). The en bane D.C. Circuit was resolute: "Courts are not a forum for reconsidering the wisdom of discretionary decisions made by the political branches in the realm of foreign policy or national security." !d. at 840.
14

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 24 of 45 PageID# 1477
To understand this litigation, reference must be made to the passionately negative reaction ofestablishment and institutional elites to the candidacy of Donald John Trump. A significant percentage of the established intellectual leaders and Beltway hierarchy of both the Democratic and Republican parties, declared themselves early to be - #NeverTrump. Now a broader group of elites in our political, media and legal establishments seek to undermine President Trump's nascent administration- particularly in relation to his war-policies and aliens. As example, in a shocking act of insubordination, President Trump's Acting Attorney General Sally Yates publically announced she was ordering her federal prosecutors across the nation to not enforce the president's orders. Yates had accepted the offer to serve as President Trump's Acting .f\_ttomey General while being well aware ofthe president's positions on military strategy and alien entry. Tellingly, Yates did not resign in respectful disagreement with the travel freeze, but rather chose public insubordination. Senate Judiciary Chairman Charles Grassley was among many to describe General Yates' action as nothing less than "sabotage." Only history will tell if and when those establishment and Beltway elites, some perhaps tormented from what has been termed Trump derangement syndrome, come to eventually accept Donald Trump's election. See Victor Williams, Travel Ban Challenges Present a Non-Reviewable Political Question, JURIST -FORUM, Feb.15, 2017, http://jurist.org/forum/2017/02Nictor-Williams-travel-ban.php.
15

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 25 of 45 PageID# 1478
Following Harisiades v. Shaughnessy, however, this Court must honor the choice ofthe electors and in "maintenance of a republican form ofgovernment" aclmowledge that it is the elected-president, not the unelected judiciary, that has responsibilities to calculate war strategy and formulate war-related foreign policy. In Harisiades, the Supreme Court clearly stated "any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government." 342 U.S. 580, 588-89 (1952).
Amicus respectfully argues that it is not possible for the judiciary to competently review the wisdom ofthe Executive Branch's calculus-- ofwar strategy, national security, and foreign policy- made in implementing the travel freeze. Conditions are such in these listed nations that there must be a fulsome assessment ofthe prior administration's vetting procedures by the new president: "[T]he risk of erroneously permitting entry of a national of one ofthese countries who intends to commit terrorist acts or otherwise harm the national security ofthe United States is unacceptably high." Exec. Order No. 13780 (March 6, 2016).
As referenced above, over 40 foreign-hom aliens from the six listed nations have been charged, tried and convicted ofterrorist related acts in the United States since September 2001, revealed by Sen. Jeff Sessions' Senate Judiciary Committee
16

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 26 of 45 PageID# 1479

Subcommittee on Immigration and the National Interest. Mathew Boyle, SenateCommittee: 580 Terror Convictions Since 2001, BREITBARTNEWS, June 22,2016, http://www.breitbart.com/big-govemment/2016/06/22/senate-committee-580terror-convictions-in-u-s-since-911-380-terrorists-are-foreign-born/. Although the Executive Branch should not have had to do so to avoid judicial interference in its war-strategy calculus, the president's Executive Order nevertheless references some ofthe hellish conditions existing in those listed nations - conditions which require the travel freeze. Amicus respectfully asserts that after the Court seriously considers these conditions, there should be no doubt regarding its obligation to immediately dismiss the instant action:

i) Iran. Iran has been designated as a state sponsor ofterrorism 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 ofthe country, security and law enforcement functions are provided by armed militias rather than state institutions. Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have exploited these conditions to expand their presence in the country. The Libyan government provides some cooperation with the United States' counterterrorism efforts, but it is unable to secure thousands ofmiles ofits 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.

17

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 27 of 45 PageID# 1480
(iii) Somalia. Portions of Somalia have been terrorist safe havens. AlShabaab, an al-Qa'ida-affiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries. Somalia has porous borders, and most countries do not recognize Somali identity documents. The Somali government cooperates with the United States in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists.
(iv) Sudan. Sudan has been designated as a· state sponsor ofterrorism since 1993 because of its support for intern~tional 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 ofterrorism since 1979. The Syrian government is engaged in an ongoing military conflict against ISIS and others for control ofportions ofthe country. At the same time, Syria continues to support other terrorist groups. It has allowed or encouraged extremists to pass through its territory to enter Iraq. ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe, including in the United States. The United States Embassy in Syria suspended its operations in 2012. Syria does not cooperate with the United States' counterterrorism efforts.
(vi) Yemen. Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition. Both ISIS and a second group, alQa'ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks. Weapons and other materials smuggled across Yemen's porous borders are used to fmance AQAP and other terrorist activities. In 2015, the United States Embassy in Yemen suspended its operations, and embassy staffwere relocated out ofthe country. Yemen has been supportive of, but has not been able to cooperate fully with, the United States in counterterrorism efforts.
Exec. Order No. 13780 (March 6, 2017). There is no competent way for the
Court to reach the "unmanageable" analysis of statutes or rules involving alien visa
18

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 28 of 45 PageID# 1481
issuance or revocation or any other such ordinary immigration processes. Orderly judicial abstention is critically important during this time ofprolonged war, during which recent presidents have struggled with implementing complicated foreign policy and national security formulas related to the most unusual and difficult conflict with radical terrorists.
In the instant case, Plaintiffs may not clear the political question bar simply by recasting the president's calculus involved with a foreign policy and national security detennination in terms of an ordinary matter of immigration law and/or APA immigration procedure. See Aktepe v. United States: 705 F.3d 1400 (11th Cir. 1997). Neither can Plaintiffs jump the abstention barrier by specious assertions of due process and equal protection violations, United Stales v. Verdugo- Urquidez, 494 U.S. 259,269 (1990) (citing Johnson v. Eisentrager, 339 U.S. 763, 770 (1950), nor by assertions ofreligious discrimination by slanderously questioning the motives ofthe president for implementing the freeze. There are "legitimate reasons" for the president's action and this Court can "not infer a discriminatory purpose." McCleskey v. Kemp,481 U.S.279,298-99(1987).
Nor can the equally specious assertions by American citizens and permanent residents who claim a legal interest in foreign-soil aliens' entry onto American soil during the time of war justify this Court's interference with the Commander-in-
19

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 29 of 45 PageID# 1482

Chiefdecision. The president is simply placing a pause on the entry of foreign-soil aliens from the very region ofthe world that is spawning our terrorist enemies.

Throughout our Republic's history, the Supreme Court has recognized that

some issues are committed by the Constitution's text to the exclusive discretion of

the elected political branches. When these political questions manifest, the

judiciary lacks jurisdiction to act in its prescribed and limited role as a court.

Congressman John Marshall, in 1800, warned his U.S. House colleagues that the

political branches would be "swallowed-up by the judiciary" without such judicial

self-restraint. Speech ofthe Honorable John Marshall (Mar. 7, 1800), 18 U.S. app.

note I, at 16-17 (1820) (cited by The Political Question Doctrine and the Supreme

.

.

Court ofthe United States (Nada Mourtada-Sabbah and Bruce E. Cain, eds.) 25 n.

10) 2007).

Three years later, U.S. Chief Justice John Marshall provided early guidance as to the 11rule of law to guide the court in the exercise of its jurisdiction." Marshall offered this political question description: "By the constitution ofthe United States, the president is invested with certain important political powers, in the exercise ofwhich he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience." Marbury v. Madison,
5 u.s. 137, 165 (1803).

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Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 30 of 45 PageID# 1483

More recently, Seventh Circuit Judge Richard Posner artfully explained that the doctrine acknowledges the Constitution's "assignment of exclusive decision making responsibility to the nonjudicial branches ofthe federal government." Miami Nation ofIndians v. Department ofInterior, 255 F.3d 342 (7th Cir. 2001). Consider Judge Posner's abstention description:

The doctrine identifies a class of questions that either are not amenable to judicial resolution because the relevant considerations are beyond the courts' capacity to gather and weigh, or have been committed by the Constitution to the exclusive, unreviewable discretion ofthe executive and/or legislative the so-called 'political' - branches ofthe federal government.

ld at 346. (citations and references omitted). Even more instructive is Richard

Posner's strong statement regarding the "nature ofthe questions that the court

.

.

would have to answer - which asks whether the answers would be ones a federal

court could give without ceasing to be a court." Id at 347.

In the context ofthe national litigation challenging the travel freeze, it is fair to consider that a court's zealous actions to force an answer to the patent political question matches Posner's description of a court "ceasing" to be a court.

In Zivotofsky v. Clinton, the Supreme Court was discretely tasked with detennining a federal statute's constitutionality and the resulting ruling provides helpful contrast as to the contours ofthe abstention requirement. 132 S. Ct. 1421 (2012). Unlike the instant case, the high court did not need to determine whether
21

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 31 of 45 PageID# 1484
there were judicially determinable and manageable standards for an interpretation, analysis, and application ofthe relevant statute. Its determination was discrete as to the statute's constitutionality. Indeed to make it clear that Zivotofsky was decided in a narrow context, Associate Justice Sonia Sotomayor, in concurrence, reiterated the importance ofpolitical-question abstention to the separation of powers. ld at 1431-6 (2012). And Associate Justice Steve Breyer wrote to warn how allowing judicial review in a broader foreign policy context can pose a "serious risk" of "embarrassment, show lack ofrespect for the other branches, and potentially disrupt sound foreign policy decision making." Id at 1437. Justice Breyer urged careful consideration ofthe abstention option in foreign policy matters involving the Mid~le East where ordinary administrative matters can have far reaching implications:
Political reactions in that region can prove uncertain. And in that context it may well tum out that resolution ofthe constitutional argument will require a court to decide how far the statute, in practice, reaches beyond the purely administrative, determining not only whether but also the extent to which enforcement will interfere with the president's ability to make significant recognition-related foreign policy decisions. Id at 1429-30. The instant case requires far more than a straightforward determination of a statute's constitutionality, as was the case in Zivotofsky. Rather, the Plaintiffs' claims require this Court to review and second guess the Executive Branch's
22

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 32 of 45 PageID# 1485
complicated foreign policy and national secwity calculus in prosecuting the war on terror. As discussed above, in Mobarez, the District of Columbia District of Columbia acknowledged Zivotofsky 's assistance to cases such as the instant one. Mobarez v. Kerry Civil Action No. 2015-0516 (D.D.C. 2016). Other courts have recently made similar nonjusticiability determinations by contrasting the narrow context ofthe Zivotosky ruling. See Ctr.for Biological Diversity v. Hagel, 80 F. Supp. 991, 1011 (N.D. Cal. 2016) and Alaska v. Kerry, 972 F. Supp. 1111 (D. Alaska 2013).
Judicial oversight ofthe newly-elected president's travel freeze violates fundamental constitutional understandings regarding the separation ofpowers and c~nsent ofthe governed. The newly-elected presi~ent is vested with all executive power by Article II, § 1, and is made Commander-in-Chiefofthe Army and Navy and state militias by Article II, § 2. The president has a most solemn duty to protect the Republic's citizens from potential harm. Vigilance against alien enemies who threaten to alight our shores, during a time ofwar, is the highest mandate ofthe president. But, as argued above, the travel freeze has obvious "smart power" foreign policy objectives that are also critical to the president's prosecution ofthe war.
Providing such Executive energy for national secwity was a fundamental reason for the 1787 Convention that led to replacement ofthe Articles of
23

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 33 of 45 PageID# 1486
Cot;tfederation. Consider Alexander Hamilton's argument for ratification of our second Constitution in FEDERALIST 23:
The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or to define the extent and variety ofnational exigencies, and the correspondent extent and variety ofthe means which may be necessary to satisfy them. The circumstances that endanger the safety ofnations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care ofit is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction ofthe same councils which are appointed to preside over the common defense. Alexander Hamilton, "No. 23: The Necessity ofa Government as Energetic as the One Proposed to ~he Preservation ofthe Union, "in Clinton Rossi~er, ed., The Federalist Papers 148-153 (New York: Mentor, 1999).
From Marbury forward, the political question doctrine has developed to preclude judicial consideration in a variety of issues with foreign relations prominent. See e.g., Oetjen v. Central Leather Co., 246 U.S. 297, 303 (1918).
In the modem case ofBaker v. Carr, 369 U.S. 186 (1962), the Supreme Court identified six independent characteristics "[p]rominent on the surface ofany case held to involve a political question." The first two are often given the most weight. The six include:
24

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 34 of 45 PageID# 1487
[1] a textually demonstrable commitment ofthe issue to a coordinate political department; [2] or a lack ofjudicially discoverable and manageable standards for resolving it; [3] or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; [4] or the impossibility of a court's undertaking ofindependent resolution without expressing lack ofthe respect due to coordinate branches ofgovernment; [5] or an unusual need for unquestioning adherence to the political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
See Bake.r, 369 U.S. at 217. As the D.C. Circuit has written, only one Baker criteria need manifest for an
abstention determination. See Snider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005). Not one, not two, but all six Baker characteristics are patent for this Court's consideration ofthe Plaintiffs' claims. Ifthe Court goes beyond the textuallycommitted authority ofthe president, it risks becoming lost in the densest of a modem political thicket. The Court will fmd no manageable standards to competently decide the claims and will be forced to make policy determinations -without the skills or classified information needed for such determinations.
25

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 35 of 45 PageID# 1488
Again, there are no judicially manageable standards by which the Court can endeavor to assess the President's interpretation of classified and military intelligence and his resulting decision - based on that intelligence - whether to restrict entry of foreign-soil aliens from the listed nations. And, the Court has no ability to judge the layered foreign-policy objectives for the president's explicit messaging to other nations of the cooperation expected in the war on terror ifthey want to avoid being placed on the list - in future. As a matter of a required firstorder determination, the Court's inquiry into such Executive Branch business is barred. Assertion that such an inquiry is necessary to an unmanageable, secondorder analysis of statutory assertions, APA process, or specious constitutional claims does not make the inquiry or the controversy justiciable.
It will be with little or no "respect" shown to coordinate political branches if the Court seriously considers Plaintiffs' specious assertion that the president's motivation for the freeze stems from religious bigotry. And review of this matter is opposite to an "adherence" to the president's political decision already made.
The Court's engagement in such judicial interference also threatens political and
practical chaos. And by reviewing the instant matter, this Court will only add to the "multifarious pronouncements" of courts across the nation regarding the travel freeze. Although both the president and the judiciary will suffer "embarrassment" from such judicial intervention, it is the American people who will suffer a greater
26

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 36 of 45 PageID# 1489
danger ofterrorist harm. And the American people's long asserted claims of self-governance are cast into doubt iftheir newly-elected president is not given room to do exactly what he promised to during 2016 election- better protect citizens during this time ofwar.
Judicial declarations interfering with President Trump's decision on the travel freeze will certainly create doubts among the international community as to the resolve ofthe United States to adhere to this position. And the judicial interference undercuts the freeze's message to other nations regarding the new administration's broader and significant shift to an "America first" war strategy and foreign policy. See Lowry v. Regan, 676 F. Supp. 333, 340 (D.D.C. 1987). See also, Smith v. Reagan, 844 F.2d 195, 199 (4th Cir. 1988).
Subsequent to Baker, the Supreme Court in Nixon v. United States, 506 U.S. 224 (1993) applied these Baker factors by instructing that the political question analysis begins by "determin[ing] whether and to what extent the issue is textually committed." 506 U.S. at 228. The Supreme Court rejected, as nonjusticiable, a debenched federal judge's challenge to the Senate's exercise of its Article I,§ 3, Clause 6 "sole" duty to "try" all impeachments. The Court refused to review a procedurally problematic Senate impeachment trial process in which an "evidence committee" of only 12 senators heard testimony while 88 senators avoided jury duty. All 100 Senators were ultimately allowed to vote -- thumbs up
27

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 37 of 45 PageID# 1490

or down -- rendering the fmal removal verdict. The Court determined that it did
not have authority !O review the shortcut Senate trial process used to strip U.S.
District Judge Walter Nixon ofhis tenured office and salary. The Court explicitly ruled "the word 'try' in the Impeachment Trial Clause does not provide an identifiable textual limit on the authority which is committed to the Senate" Id. at 239. Neither should this Court review the president's exercise ofhis exclusive textual authority to implement war strategy and security-related foreign policy.

Just as the Supreme Court did in the Nixon, this Court should readily

determine that "there is no separate provision ofthe Constitution" 506 U.S. at 237,

that could be rationally argued to conflict with the President's textual authority to

.

.

utilize his war powers to implement the travel freeze. Foreign-soil aliens do have

Fifth Amendment rights (and they cannot bootstrap such rights from their alleged

contacts with American citizens and resident aliens). As Chief Justice William

Rehnquist wrote: "Indeed, we have rejected the claim that aliens are entitled to

Fifth Amendment rights outside the sovereign territory of the United States."

United States v. Verdugo-Urquidez, 494 U.S. 259,269 (1990) (citingJohnsonv.

Eisentrager, 339 U.S. 763, 770 (1950). See also, Lega/Assistancefor Vietnamese

AsylumSeekersv.Dep'tofState, Bureau ofConsular Affairs, 104 F.3d 1349, 1354

(D.C. Cir. 1997) and Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2dCir.1990).

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Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 38 of 45 PageID# 1491
Neither do foreign-soil aliens have First Amendment rights to assert religious discrimination claims. Protests that Donald Trump had bad motives in his decision to institute the travel freeze - particularly those that allege a religious bias against Muslims by including references to statements he made in the 2016 presidential election- are both specious and slanderous. Again, t4ere are "legitimate reasons" for the president's action and this Court can "not infer a discriminatory purpose." McCleskey v. Kemp,481 U.S. 279,298-99(1987).
It bears reemphasis that the travel freeze does not apply to aliens presently residing in America, unlike the alien residents at issue in Yick Wov. Hopkins, 118 U.S. 356, 369 (1886). And the instant action does not involve aliens having been involuntarily taken to, and/or subject to prolonged detention on, American soil or on foreign soil over which America has "plenary or exclusive jurisdiction." Rasul v. Bush, 542 U.S. 446 (2004). Quite the opposite in factual context, the complaints stem from foreign-soil aliens not being immediately allowed entry onto America's soil. The Guantanamo Bay cases are not supportive ofthe Court's subject matter jurisdiction in this matter. See Boumediene v. Bush, 53 US 723 (2008).
Goldwater v. Carter is the best example ofthe Supreme Court's most efficient political question determination. 444 U.S. 996 (1979). Goldwater involved a group of senators, led by Barry Goldwater, who sued President Jimmy Carter to challenge his abrogation of a United States treaty with Taiwan. The
29

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 39 of 45 PageID# 1492
Supreme Court rejected the senators' attempt to interfere with an exclusive Executive authority to conduct foreign policy. Without oral argument, the high court announced: "The petition for a writ of certiorari is granted. The judgment of the Court ofAppeals is vacated and the case is remanded to the District Court with directions to dismiss the complaint." ld 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." !d. at 1002. After neither oral argument or a review the merits regarding the senators' challenge to the president's foreign policy decision, Rehnquist stated:
ppctcAQroor.oneaulnciar_tAettitescehradtffe.rlaionlrrnlmegamlsstcouociolrornueuenttrisohdtoi'eisfdnsterrfhoueereidspfnoeaqtgilruouqaoenltuirsoecatdisonmoteuinocoorsitnfndspagipmnrqtregheuusesetsehetnstnehtbtietroemedendveesatirhcnhciotoaasaeutteqolmiddsuf,oath'hpaolaenotbv.dlcreciaototpnihnncrcettaerhrlcocoe'lovvsuimenedorrespcsfydyhlGa.,atiohrtnShavetceienltroepcnrwermicotehearrenn_t dismissed. !d. at 1005-06. Just a year before the American people were to replace a weakened Executive with a new president who promised a different foreign policy (an election that was held while Iran's religious tyrants held Americans hostage in the U.S. Embassy), Justice Rehnquist upheld the authority ofthe president and the legitimacy ofthe judiciary by articulating the requirement for judicial abstention. Justice Rehnquist's 1979 words provide the clearest argument for this Court's 2017 immediate dismissal.
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But perhaps less "domesticated" abstention advocacy is needed to counsel this Court's self-restraint in this important and highly public matter; "something greatly more flexible, something ofprudence, not construction and not principle." The purest prudential strain ofnonjusticiability still incubates in Alexander Bickel's THE LEAST DANGEROUS BRANCH: THE SUPREl\ffi COURT AT THE BAR OF POLITICS. Professor Bickel described political questions as those issues which ask the courts to evaluate policy and choose between outcomes - functions which the judiciary as an institution is functionally incompetent to carry out.
In unmatched written aesthetic, Alexander Bickel offered a foundation instead ofBaker-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, ofthe political-question doctrine: the Court's sense of lack of capacity, compounded in unequal parts of (a) the strangeness ofthe issue and its intractability to principled resolution; (b) the sheer momentousness of it, which tends to unbalance judicial judgment; (c) the anxiety, not so much that the judicial judgment will be ignored, as that perhaps it should but will not be; (d) finally ("in a mature democracy"), ·the inner vulnerability, the selfdoubt of an institution which is electorally irresponsible and has no earth to draw strength from. Alexander Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 184 (Yale 1986). When considering the danger that could result from judicial interference in the president's foreign policy and war strategy, it is disturbingly prescient that
31

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 41 of 45 PageID# 1494
Professor Bickel addressed "the anxiety, not so much that the judicial judgment will be ignored but that it should but will not be." And certainly today, our unelected judiciary, which has "no earth to draw strength from," would be wise to stay out ofthe worsening and ugly mud-fight being waged by ideological elites against Donald Trump.
Admittedly, th~ late Yale University Law professor's prudential poetry
'
unnerves the judge-centric consciousness so predominant at bar and in the legal academy. All the more reason for this Court's deep consideration of its fundamental truths.
There is a related -- but separate -consideration for this Court: The 1_1ation's extreme need for fmality in this matter. This need for finality weighs very heavily in favor of a political question determination. As Judge Steven Williams reasoned in 1991, when Nixon v. United States was before the D.C. Circuit: "Although the primary reason for invoking the political question doctrine in our case is the textual commitment. ..the need for fmality also demands it." Nixon v. United States, 938 F.2d 239, 245-46 (D.C. Cir. 1991)(citations omitted).
The cost ofthe judiciary answering political questions is often chaos: "If claims such as Nixon's were justiciable, procedural appeals from every impeachment trial would become routine...the intrusion ofthe courts would
32

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 42 of 45 PageID# 1495
expose the political life ofthe country to months, or perhaps years, ofchaos." ld at 246. Challenges to the president's travel freeze are now becoming "routine," with adjudications challenging the travel restriction ongoing in several sister courts. It must be clearly seen that "the intrusion ofthe courts would expose the political life [and national security] ofthe country to months, or perhaps years, of [dangerous] chaos." Id
As what is termed Trump derangement syndrome appears virulently contagious among lawyers (who need only the federal court filing fee to manifest the disorder), finality in this area is needed to help retard future frivolous litigation against Donald Trump's future war prosecution and related foreign policy efforts.
Attempts by the judiciary to interfere with President Trump's exercise ofhis inherent and exclusive authorities threaten a serious breach ofthe separation of powers. The judiciary does not have the institutional competence or information to make decisions about what actions are required in order for the new president to fulfill his responsibilities to prosecute this unusual, ongoing war.
Just as the D.C. Circuit explained, cases involving national security and foreign relations "raise issues that 'frequently tum on standards that defy judicial application' or 'involve the exercise of a discretion demonstrably committed to the
33

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 43 of 45 PageID# 1496
executive or legislature."' El-Shifa, 601 F.3d at 841 (quoting Baker, 369 U.S. at 221).
Article II grants the president war powers and security-related foreign relations authorities "the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience." Marbury v. Madison. 5 U.S. 137, 165 (1803). In our 227 years of self-government practice under our second ~onstitution, only 45 persons have known the unique obligation. It is a burden that requires the president to make difficult calculations often based often on classified information. President Barack Obama has now been relieved ofthat heavy burden, and a majority of"Electors [have met and voted] in their· respective states" to place the burden on the shoulders (and on the heart) of another. U.S. CONST. AMEND. XII, § 1.
This Court should not interrupt the new president's prosecution ofthe war that he inherited· from past administrations - from past presidents holding onto tired and failed foreign policies. Amicus respectfully argues that the Plaintiffs' claims should be immediately dismissed with a determination ofnonjusticiability.
Just as this argument began, it should finish by again acknowledging that one can hardly bear to read many ofthe tragic narratives of aliens' hurt, fear, and family separation as relayed in the travel freeze litigation across America. Sadly,
34

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 44 of 45 PageID# 1497
General Sherman remains right- "war is hell." During this time as our new president re-orients prosecution ofAmerica's prolonged war with terrorism, while the hellish states ofcivil war, violent disorder, and evil oppression only worsen in the listed nations, our federal judiciary has its own high duty to perform -abstention. Dated: March 11,2017
,prose
st Lawyers Association www.americafirstlawyers.com 5209 Baltimore Ave Bethesda, 1viD 20816 (301) 951-9045
americafirstlawyer~@gmail.com
35

Case 1:17-cv-00116-LMB-TCB Document 118-1 Filed 03/17/17 Page 45 of 45 PageID# 1498
CERTIFICATE OF SERVICE
I hereby certify that on March IJ), 2017, the foregoing brief with relevant motion
was filed with the Clerk of this Court using the Federal Express courier (as pro se
prospective Amicus is not a registered ECF user) and served on parties using electronic transmittal via their email addresses registered to their ECF accounts.
tea First Lawyers Association www.americafirstlawyers.com 5209 Baltimore Ave, Bethesda, MD 20816 (301) 951-9045 americafirstlawyers@gmail.com
36

Case 1:17-cv-00116-LMB-TCB Document 118-2 Filed 03/17/17 Page 1 of 1 PageID# 1499
·America First Lawyers Association
Lawyers and Law Professors Advancing the Trump/Pence "America First" Movement

3-17-2017

41

Please fmd enclosed a joint Response to Intervenor's Objection to

Amicus' Motion to file a Proposed Amicus Curiae brief and Amended

Motion to file such a brief. Also find an attached Amended Proposed

Amicus Curiae brief for the named pending case.

Proceeding prose without ECF access, I thus file in paper form.

·c illiams, g _.......r:-...... as an individual, Pro Se

Prof. Victor Williams, Chair

www .americafirstlawyers.com

americafirstlawyers@gmail.com 301-951-9045

5209 Baltimore Ave Bethesda, MD 20816

Paid for by America First Lawyers Association (formerly GOP Lawyers)

 
 Case 1:17-cv-00116-LMB-TCB Document 119 Filed 03/17/17 Page 1 of 1 PageID# 1500

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, M^

Plaintiffs,
V.

l:17-cv-116(LMB/TCB)

DONALD TRUMP, President ofthe United States, ^ al..

Defendants.

ORDER

Before the Coxirt are a Motion for Leave to File Brief an Amicus Brief and an Amended
Motion for Leave to File an Amiens Brief(collectively, the "Motions") by pro^ movant Victor

Williams. Because the Court has aheady considered the arguments presented in the proposed amifiiis briefs in its Memorandum Opinions dated February 3,2017 and February 13,2017, it is

hereby
ORDERED that the Motions [Dkt. Nos. 115,118] be and are DENIED AS MOOT.

The Clerk is directed to forward copies of this Orderto counsel of recordand movant, pro

se.
Entered this _/?. day ofMarch, 2017.
Alexandria, Virginia

/s/ Leonie M. Brinkema
United States District Judge

 
 Case 1:17-cv-00116-LMB-TCB Document 120 Filed 03/30/17 Page 1 of 3 PageID# 1501

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

TAREQ AQEL MOHAMMED AZIZ,
et al.,
Petitioners,

Civil Action No. I:17cvll6

COMMONWEALTH OF VIRGINIA, et ah,

Intervenors-Petitioners

DONALD TRUMP, President of the United States, et al, Respondents.
AGREED ORDER
The only remaining petitioner in this civil action is the Commonwealth of Virginia, which filed its complaint as an intervenor-petitioner on February 3, 2017 (Dkt. No. 39); as such, respondents are currently required to answer or otherwise respond to the Commonwealth's intervention complaint on or before April 3, 2017, see FED. R. Civ. P. 12(a)(3). Counsel for the Commonwealtli and respondents have recently conducted several conversations geared towards finding a mutually-agreeable conclusion to this civil action without further judicial intervention. Although neither the Commonwealth nor respondents can guarantee that these conversations will ultimately prove successful, counsel would like to continue these discussions without the need to engage in additional motions practice before this Court. The parties have thus agreed to a twenty-eight (28) day enlargement of the respondents' current response deadline.
As such, for good cause shown, it is hereby

Case 1:17-cv-00116-LMB-TCB Document 120 Filed 03/30/17 Page 2 of 3 PageID# 1502
ORDERED that, on or before May 1,2017, respondents shall answer or otherwise respond to the Commonwealth of Virginia's intervention complaint.
Date:
Lianj^-jigjjISTA'PES DISTRICT JUDGE UiiiLcd Stales Distri^Jidcie

Case 1:17-cv-00116-LMB-TCB Document 120 Filed 03/30/17 Page 3 of 3 PageID# 1503
WE ASK FOR THIS:
SjKlart A. RaphadO^SB No. 30380)
Solicitor General
Office of the Attorney General
202 North Ninth Street
Richmond, Virginia 23219 Telephone: (804) 786-7240 Fax: (804)371-0200
Email: sranhael(5)oag.state.va.us
Date:
ATTORNEYS FOR INTERVENOR-PETITIONER COMMONWEALTH OF VIRGINIA
Dennis C. Bargha^i, Jr.
D^JUty Chief, Civil Division
Assistant United States Attorney
2100 Jamieson Avenue
Alexandria, Virginia 22314 Telephone: (703)299-3891 Fax: (703)299-3983
Email: dermis.barghaan(S),usdoi.gov
ATTORNEYS FOR RESPONDENTS

 
 Case 1:17-cv-00116-LMB-TCB Document 122 Filed 06/01/17 Page 1 of 3 PageID# 1505

FIONRTHTHEEUENAITSETDERSNTADTISETSRDIICSTTROIFCVT CIROUQR]T^^^

Alexandria Division

^ ^ kU

TAREQAQEL MOHAMMED AZIZ, etal., )

Petitioners,

THE COMMONWEALTH OF VIRGINIA, Ihtervenor-Petitioner,

V.
DONALD TRUMP, Presidentofthe United
States, etal..

Civil Action No. l:17-cv-l 16

Respondents.

STIPULATION OF DISMISSAL WITHOUT PREJUDICE
OnFebruaiy 13,2017, this Court issued a Preliminary Injunction against theenforcement of § 3(c) ofExecutive Order 13769 (ECFNo. 112) C^EO-l"), together with aMemorandum Opinion explaining the basis for the Court's ruling ^CF No. 111). EO-1 was revoked inits entiretyby§ 13 ofExecutive Order 13780 (**E0-2**), issued March 6,2017. OnM^itch 16,2017,
the United States District Court for the District ofMarylandprdiminarily enjoined enforcement
of§2(c) ofEO-2.* On March 29,2017, the United States District Court for the District of Hawaii preliminarily joined enforc^^t of§2and §6ofEO-2.^ •

^Int*lR^geeAssistance Project v. Trwnpt No. TDC-17-0361,2017 WL1018235 (D. Md. Mar. 16,2017), €^d inpart, vacated inpart. No. 17-1351,2017 WL2273306 (4th Cir. May 25,
2017).
2Hawai'i v. Thmp, No. 17-50-DKW-KSC, 2017 WL 1167383 (D. Haw. Mar. 29,2017), cppeal
docketedil^o. 17-15589 (9th Cir.Mar. 30,2017).
1

Case 1:17-cv-00116-LMB-TCB Document 122 Filed 06/01/17 Page 2 of 3 PageID# 1506

Case 1:17-cv-00116-LMB-TCB Document 122 Filed 06/01/17 Page 3 of 3 PageID# 1507

 
 Case: 1:17-cv-116 As of: 06/04/2017 03:35 PM EDT 1 of 15
CLOSED,HABEAS
U.S. District Court Eastern District of Virginia − (Alexandria) CIVIL DOCKET FOR CASE #: 1:17−cv−00116−LMB−TCB

Aziz et al v. Trump et al Assigned to: District Judge Leonie M. Brinkema Referred to: Magistrate Judge Theresa Carroll Buchanan Cause: 28:2241 Petition for Writ of Habeas Corpus (Federal)
Petitioner

Date Filed: 01/28/2017 Date Terminated: 06/01/2017 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: Federal Question

Tareq Aqel Mohammed Aziz TERMINATED: 02/07/2017

represented by Simon Yehuda Sandoval−Moshenberg Simon Sandoval Moshenburg Legal Aid Justice Center 6066 Leesburg Pike Suite 520 Fall Church, VA 22041 703−778−3450 Fax: 703−778−3454 Email: simon@justice4all.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Ruth Wolozin Legal Aid Justice Center (Falls Church) 6066 Leesburg Pike Suite 520 Falls Chruch, VA 22041 703−778−3450 Fax: 703−778−3454 Email: becky@justice4all.org ATTORNEY TO BE NOTICED

Petitioner
Ammar Aqel Mohammed Aziz by their next friend TERMINATED: 02/07/2017

represented by Simon Yehuda Sandoval−Moshenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Ruth Wolozin (See above for address) ATTORNEY TO BE NOTICED

Petitioner
Aqel Muhammad Aziz TERMINATED: 02/07/2017

represented by Simon Yehuda Sandoval−Moshenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Ruth Wolozin (See above for address) ATTORNEY TO BE NOTICED

Petitioner
John Does 1−60 on behalf of themselves and others similarly situated TERMINATED: 02/07/2017

represented by Simon Yehuda Sandoval−Moshenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-116 As of: 06/04/2017 03:35 PM EDT 2 of 15
Rebecca Ruth Wolozin (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Muslim Advocates

represented by Michael Erich Kientzle Arnold &Porter Kaye Scholer LLP (DC) 601 Massachusetts Ave NW Washington, DC 20001−3743 202−942−5000 Fax: 202−942−5999 Email: michael.kientzle@apks.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Respondent Donald Trump President of the United States
Respondent U.S. Department of Homeland Security "DHS"
Respondent U.S. Customs and Border Protection (CBP)
Respondent John Kelly Secretary of DHS
Respondent Kevin K. McAleenan Acting Commissioner of CBP
Respondent Wayne Biondi Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles

represented by Dennis Carl Barghaan , Jr. United States Attorney's Office 2100 Jamieson Ave Alexandria, VA 22314 (703)299−3700 Email: dennis.barghaan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis Carl Barghaan , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis Carl Barghaan , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis Carl Barghaan , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis Carl Barghaan , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Dennis Carl Barghaan , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-116 As of: 06/04/2017 03:35 PM EDT 3 of 15

Respondent
Eight Unnamed CBP Agents at Dulles Airport

Movant
Janice Wolk Grenadier TERMINATED: 02/06/2017

represented by Janice Wolk Grenadier 15 W. Spring Street Alexandria, VA 22301 (202) 368−7178 PRO SE

Movant
Raquel Okyay TERMINATED: 02/06/2017

represented by Raquel Okyay 15 W Spring Street Alexandria, VA 22301 PRO SE

Movant
Vincent A. Molino People of the United States of America in Support of Respondents TERMINATED: 02/27/2017

represented by Vincent A. Molino 47 Susan Dr. Chatham, NJ 07928 (985) 551−0778 PRO SE

Movant
Victor Williams America First Lawyers Association

represented by Victor Williams 5209 Baltimore Ave. Bethesda, MD 20816 (301) 951−9045 PRO SE

Amicus Anti−Defamation League

represented by Joshua David Rogaczewski McDermott Will &Emery (DC) 500 North Capitol Street NW Washington, DC 20001 (202) 756−8195 Fax: 202−591−2757 Email: jrogaczewski@mwe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Americans United for Separation of Church and State

represented by Carmen Nicole Green Americans United for Separation of Church and State 1310 L St NW Suite 200 Washington, DC 20005 202−466−3234 Fax: 202−466−3353 Email: green@au.org ATTORNEY TO BE NOTICED

Amicus Southern Poverty Law Center

represented by Carmen Nicole Green (See above for address) ATTORNEY TO BE NOTICED

Amicus

Case: 1:17-cv-116 As of: 06/04/2017 03:35 PM EDT 4 of 15

American Muslim Health Professionals

represented by Michael Erich Kientzle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Council for Advancement of Muslim Professionals

represented by Michael Erich Kientzle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
National Arab American Medical Association

represented by Michael Erich Kientzle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
The Islamic Medical Association of North America

represented by Michael Erich Kientzle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Muppies, Inc.

represented by Michael Erich Kientzle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Network of Arab American Professionals

represented by Michael Erich Kientzle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Illinois

represented by Michael Angelo Tilghman Office of the Attorney General for the District of Columbia 441 4th St NW 6th Floor South Washington, DC 20001 202−727−6247 Email: michael.tilghman@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus New York

represented by Michael Angelo Tilghman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Massachusetts

represented by Michael Angelo Tilghman (See above for address) ATTORNEY TO BE NOTICED

Amicus

Case: 1:17-cv-116 As of: 06/04/2017 03:35 PM EDT 5 of 15

Pennsylvania

represented by Michael Angelo Tilghman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus California

represented by Michael Angelo Tilghman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Connecticut

represented by Michael Angelo Tilghman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Delaware

represented by Michael Angelo Tilghman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Iowa

represented by Michael Angelo Tilghman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Maine

represented by Michael Angelo Tilghman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Maryland

represented by Michael Angelo Tilghman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus New Mexico

represented by Michael Angelo Tilghman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus North Carolina

represented by Michael Angelo Tilghman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Oregon

represented by Michael Angelo Tilghman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-116 As of: 06/04/2017 03:35 PM EDT 6 of 15

Amicus Rhode Island

represented by Michael Angelo Tilghman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Vermont

represented by Michael Angelo Tilghman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Washington

represented by Michael Angelo Tilghman (See above for address) ATTORNEY TO BE NOTICED

Amicus District of Columbia

represented by Michael Angelo Tilghman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
The Fred T. Korematsu Center, Civil Rights Organizations and National Bar Associations of Color

represented by James Edward Tysse Akin Gump Strauss Hauer &Feld LLP (DC) 1333 New Hampshire Ave NW Washington, DC 20036 202−887−4571 Fax: 202−887−4288 Email: jtysse@akingump.com ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Commonwealth of Virginia

represented by Stuart Alan Raphael Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 804−786−7240 Fax: 804−371−0200 Email: sraphael@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Robert McGuire Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 (804) 786−7773 Fax: (804) 371−0200 Email: mmcguire@oag.state.va.us ATTORNEY TO BE NOTICED
Trevor Stephen Cox Office of the Attorney General (Richmond)

Case: 1:17-cv-116 As of: 06/04/2017 03:35 PM EDT 7 of 15

202 North 9th Street Richmond, VA 23219 (804) 786−7704 Fax: (804) 371−0200 Email: tcox@oag.state.va.us ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Osman Nasreldin TERMINATED: 02/08/2017

represented by Timothy J. Heaphy Hunton &Williams LLP (DC−Pennsylvania Ave) 2200 Pennsylvania Ave NW Washington, DC 20037 202−955−1500 Fax: 202−778−2201 Email: theaphy@hunton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Sahar Kamal Ahmed Fadul TERMINATED: 02/08/2017

represented by Timothy J. Heaphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/28/2017 01/28/2017 01/28/2017
01/30/2017 01/30/2017
01/30/2017 01/30/2017

# Docket Text
1 PETITION for Writ of Habeas Corpus ( Filing fee $ 5 receipt number 0422−5352839.), filed by Ammar Aqel Mohammed Aziz, Tareq Aqel Mohammed Aziz, Aqel Muhammad Aziz. (Attachments: # 1 Executive Order, # 2 Affidavit)(dvanm, ) (Entered: 01/30/2017)
2 EMERGENCY MOTION for Temporary Restraining Order by Ammar Aqel Mohammed Aziz, Aqel Muhammad Aziz, Tareq Aqel Mohammed Aziz. (dvanm, ) (Entered: 01/30/2017)
3 ORDER granting 2 Motion for TRO. Pursuant to Federal Rule of Civil Procedure 65, the Court orders that: a) respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport;b) respondents are forbidden from removing petitionerslawful permanent residents at Dulles International Airportfor a period of 7 days from the issuance of this Order. Signed by District Judge Leonie M. Brinkema on 01/28/2017. (dvanm, ) (Entered: 01/30/2017)
4 NOTICE by Ammar Aqel Mohammed Aziz, Aqel Muhammad Aziz, Tareq Aqel Mohammed Aziz, John Does 1−60 re 1 Petition for Writ of Habeas Corpus (2241) Civil Cover Sheet (Sandoval−Moshenberg, Simon) (Entered: 01/30/2017)
5 Motion to appear Pro Hac Vice by Paul W. Hughes and Certification of Local Counsel Simon Y. Sandoval−Moshenberg Filing fee $ 75, receipt number 0422−5353400. by Ammar Aqel Mohammed Aziz, Aqel Muhammad Aziz, Tareq Aqel Mohammed Aziz, John Does 1−60. (Sandoval−Moshenberg, Simon) (Entered: 01/30/2017)
6 NOTICE of Appearance by Rebecca Ruth Wolozin on behalf of Ammar Aqel Mohammed Aziz, Aqel Muhammad Aziz, Tareq Aqel Mohammed Aziz, John Does 1−60 (Wolozin, Rebecca) (Entered: 01/30/2017)
7 First Amended Petition for Writ of Habeas Corpus and Class Complaint for Declaratory and Injunctive Relief against Wayne Biondi, John Kelly, Kevin K. McAleenan, Donald Trump, U.S. Customs and Border Protection (CBP), U.S. Department of Homeland Security and Eight Unnamed CBP Agents at Dulles Airport filed by Ammar Aqel Mohammed Aziz, John Does 1−60, Tareq Aqel Mohammed Aziz, Aqel Muhammad Aziz. (Attachments: # 1 Exhibit A, # 2 Exhibit

Case: 1:17-cv-116 As of: 06/04/2017 03:35 PM EDT 8 of 15

01/30/2017
01/31/2017
01/31/2017
01/31/2017 01/31/2017 01/31/2017 01/31/2017 01/31/2017 01/31/2017 01/31/2017 02/01/2017
02/01/2017 02/01/2017 02/01/2017 02/01/2017 02/01/2017 02/01/2017 02/01/2017

B, # 3 Exhibit C)(Sandoval−Moshenberg, Simon) Modified text on 1/31/2017 to add respondent party &correct docket event (klau, ). (Entered: 01/30/2017)
8 Motion to appear Pro Hac Vice by Elaine Poon and Certification of Local Counsel Simon Y. Sandoval−Moshenberg Filing fee $ 75, receipt number 0422−5354026. by Ammar Aqel Mohammed Aziz, Aqel Muhammad Aziz, Tareq Aqel Mohammed Aziz, John Does 1−60. (Sandoval−Moshenberg, Simon) (Entered: 01/30/2017)
9 Motion to appear Pro Hac Vice by Andrew J. Pincus and Certification of Local Counsel Simon Y. Sandoval−Moshenberg Filing fee $ 75, receipt number 0422−5355760. by Ammar Aqel Mohammed Aziz, Aqel Muhammad Aziz, Tareq Aqel Mohammed Aziz, John Does 1−60. (Sandoval−Moshenberg, Simon) (Entered: 01/31/2017)
10 ORDER that the parties appear before the undersigned on Friday, February 10, 2017, at 10:00 a.m. to determine whether a preliminary injunction or other relief should issue. Signed by District Judge Leonie M. Brinkema on 1/31/17. (klau, ) (Entered: 01/31/2017)
Set Hearings: Status Conference set for 2/10/2017 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (klau, ) (Entered: 01/31/2017)
11 ORDER granting 5 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 1/31/17. (klau, ) (Entered: 01/31/2017)
12 ORDER granting 8 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 1/31/17. (klau, ) (Entered: 01/31/2017)
13 ORDER granting 9 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 1/31/17. (klau, ) (Entered: 01/31/2017)
14 MOTION to Intervene by Commonwealth of Virginia. (Attachments: # 1 Proposed Order)(Raphael, Stuart) (Entered: 01/31/2017)
15 Memorandum in Support re 14 MOTION to Intervene filed by Commonwealth of Virginia. (Raphael, Stuart) (Entered: 01/31/2017)
16 Notice of Hearing Date re 15 Memorandum in Support, 14 MOTION to Intervene (Raphael, Stuart) (Entered: 01/31/2017)
17 NOTICE of Appearance by Dennis Carl Barghaan, Jr on behalf of Wayne Biondi, John Kelly, Kevin K. McAleenan, Donald Trump, U.S. Customs and Border Protection (CBP), U.S. Department of Homeland Security (Barghaan, Dennis) (Entered: 02/01/2017)
Set Deadlines as to 14 MOTION to Intervene . Motion Hearing set for 2/3/2017 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 02/01/2017)
18 MOTION for Order to Show Cause by Commonwealth of Virginia. (Attachments: # 1 Proposed Order)(Raphael, Stuart) (Entered: 02/01/2017)
19 Brief in Support to 18 MOTION for Order to Show Cause filed by Commonwealth of Virginia. (Attachments: # 1 Exhibit 1)(Raphael, Stuart) (Entered: 02/01/2017)
20 Declaration re 19 Brief in Support [Declaration of Congressman Donald S. Beyer, Jr.] by Commonwealth of Virginia. (Raphael, Stuart) (Entered: 02/01/2017)
21 Notice of Hearing Date set for 02/03/2017 re 18 MOTION for Order to Show Cause (Raphael, Stuart) (Entered: 02/01/2017)
22 Proposed − First Intervenor COMPLAINT , filed by Commonwealth of Virginia.(Raphael, Stuart) Modified on 2/3/2017 to edit the docket text (rban, ). (Entered: 02/01/2017)
23 MOTION for Preliminary Injunction by Commonwealth of Virginia. (Raphael, Stuart) (Entered: 02/01/2017)

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02/01/2017 02/01/2017
02/02/2017 02/02/2017 02/02/2017 02/02/2017 02/02/2017 02/02/2017
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02/02/2017
02/03/2017 02/03/2017
02/03/2017

24 Notice of Hearing Date set for 02/10/2017 re 23 MOTION for Preliminary Injunction (Raphael, Stuart) (Entered: 02/01/2017)
25 Joint MOTION Hold Petitioners' Claims In Abeyance by Wayne Biondi, John Kelly, Kevin K. McAleenan, Donald Trump, U.S. Customs and Border Protection (CBP), U.S. Department of Homeland Security. (Barghaan, Dennis) (Entered: 02/01/2017)
26 MOTION to Intervene by Osman Nasreldin, Sahar Kamal Ahmed Fadul. (Attachments: # 1 Proposed Order)(Heaphy, Timothy) (Entered: 02/02/2017)
27 Brief in Support to 26 MOTION to Intervene filed by Sahar Kamal Ahmed Fadul, Osman Nasreldin. (Heaphy, Timothy) (Entered: 02/02/2017)
28 Notice of Hearing Date set for 2/3/2017 re 26 MOTION to Intervene , 27 Brief in Support (Heaphy, Timothy) (Entered: 02/02/2017)
29 NOTICE of Appearance by Trevor Stephen Cox on behalf of Commonwealth of Virginia (Cox, Trevor) (Entered: 02/02/2017)
30 Declaration re 18 MOTION for Order to Show Cause [Declaration of Edward J. Grass, Esq.] by Commonwealth of Virginia. (Raphael, Stuart) (Entered: 02/02/2017)
Set/Reset Deadlines as to 25 Joint MOTION Hold Petitioners' Claims In Abeyance , 18 MOTION for Order to Show Cause , 26 MOTION to Intervene . Motion Hearing set for 2/3/2017 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 02/02/2017)
Set Deadlines as to 23 MOTION for Preliminary Injunction . Motion Hearing set for 2/10/2017 at 10:00 AM in Alexandria Courtroom 601 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 02/02/2017)
31 Brief in Support to 23 MOTION for Preliminary Injunction filed by Commonwealth of Virginia. (Attachments: # 1 Proposed Order)(Raphael, Stuart) (Entered: 02/02/2017)
32 Declaration re 31 Brief in Support, 23 MOTION for Preliminary Injunction [Declaration of W. Taylor Reveley III] by Commonwealth of Virginia. (Raphael, Stuart) (Entered: 02/02/2017)
33 RESPONSE to Motion re 25 Joint MOTION Hold Petitioners' Claims In Abeyance filed by Commonwealth of Virginia. (Raphael, Stuart) (Entered: 02/02/2017)
34 Memorandum in Opposition re 14 MOTION to Intervene filed by John Kelly, Kevin K. McAleenan, Donald Trump, U.S. Customs and Border Protection (CBP), U.S. Department of Homeland Security. (Attachments: # 1 Exhibit)(Barghaan, Dennis) (Entered: 02/02/2017)
35 Memorandum in Opposition re 18 MOTION for Order to Show Cause filed by John Kelly, Kevin K. McAleenan, Donald Trump, U.S. Customs and Border Protection (CBP), U.S. Department of Homeland Security. (Barghaan, Dennis) (Entered: 02/02/2017)
Notice of Correction re 30 Declaration, 32 Declaration, The filing user has been notified to file a separate Certificate of Service. (klau, ) (Entered: 02/03/2017)
36 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing held on 2/3/2017. Appearances of counsel. Motions argued in open court. 18 MOTION for Order to Show Cause is DENIED. 14 MOTION to Intervene, 25 Joint MOTION to Hold Petitioners' Claims In Abeyance,and 26 MOTION to Intervene are GRANTED. Court orders temporary restraining order be left in place until next Friday, 2/10/17. (order to follow) (Court Reporter A. Thomson.)(yguy) (Entered: 02/03/2017)
37 ORDER: For the reasons stated in open court and to be further explained in a forthcoming Memorandum Opinion, the Commonwealth of Virginia's Motion to Intervene [Dkt. 14], Osman Nasreldin and Sahar Kamal Ahmed Fadul's Motion to Intervene [Dkt. 26], and the Joint Motion to Hold Petitioners' Claims in

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02/03/2017
02/03/2017 02/03/2017 02/03/2017 02/03/2017 02/03/2017 02/03/2017 02/03/2017 02/04/2017
02/06/2017 02/06/2017 02/07/2017

Abeyance[Dkt.25] are GRANTED; the Commonwealth of Virginia's Motion for the Issuance of a Rule to Show Cause [Dkt. 18] is DENIED WITHOUT PREJUDICE;and it is hereby ORDERED that the Commonwealth of Virginia's Proposed Complaint in Intervention for Declaratory and Injunctive Relief [Dkt. 22] be and is filed; and it is further ORDERED that Nasreldin and Fadul file a complaint on or before Tuesday, February 7, 2017. Signed by District Judge Leonie M. Brinkema on 2/3/17. (yguy) (Entered: 02/03/2017)
38 ORDER: For the reasons stated in open court, it is hereby ORDERED that the Temporary Restraining Order entered by this Court on January 28, 2017, be and is extended through Friday, February 10,2017; and it is further ORDERED that the defendants provide the Commonwealth of Virginia with a list of all persons who have been denied entry to or removed from the United States since the Executive Order entitled "Protecting the Nation from Foreign Terrorist Entry into the United States" was signed and who, as of 8:00 a.m. Eastern Standard Time, on Friday, January 27,2017, had a residence in the Commonwealth of Virginia and had lawful permanent resident status, an immigrant visa (or accompanying family or spousal visa), a valid student visa (or accompanyingfamily or spousal visa), or a valid work visa (or accompanying family or spousal visa) by the close of business on Thursday, February 9,2017. Signed by District Judge Leonie M. Brinkema on 2/3/17. (yguy) (Entered: 02/03/2017)
39 Intervenor COMPLAINT, filed by Commonwealth of Virginia.(rban, ) (Entered: 02/03/2017)
40 CERTIFICATE of Service re 32 Declaration by Stuart Alan Raphael on behalf of Commonwealth of Virginia (Raphael, Stuart) (Entered: 02/03/2017)
41 CERTIFICATE of Service re 30 Declaration by Stuart Alan Raphael on behalf of Commonwealth of Virginia (Raphael, Stuart) (Entered: 02/03/2017)
42 MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 2/3/2017. (rban, ) (Entered: 02/03/2017)
45 MOTION to Intervene in Support of President Donald J. Trump et al. by Janice Wolk Grenadier. (klau, ) (Entered: 02/06/2017)
46 NOTICE of Hearing on Motion 45 MOTION to Intervene : Motion Hearing set for 2/24/2017 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (klau, ) (Entered: 02/06/2017)
47 MOTION to Intervene in Support of President Donald J. Trump et al. by Raquel Okyay. (Told to Notice) (klau, ) (Entered: 02/06/2017)
43 TRANSCRIPT of proceedings held on 2/3/2017, before Judge Leonie M. Brinkema, Court Reporter Anneliese Thomson, Telephone number 703−299−8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 3/6/2017. Redacted Transcript Deadline set for 4/6/2017. Release of Transcript Restriction set for 5/5/2017.(thomson, anneliese) (Entered: 02/04/2017)
44 NOTICE by Wayne Biondi, John Kelly, Kevin K. McAleenan, Donald Trump, U.S. Customs and Border Protection (CBP), U.S. Department of Homeland Security to the Court (Barghaan, Dennis) (Entered: 02/06/2017)
48 ORDER that 45 Motion to Intervene by Grenadier and 47 Motion to Intervene by Okyay be and are DENIED (see order for details). Signed by District Judge Leonie M. Brinkema on 2/6/17. Copy mailed to pro se movants by Chambers. (klau, ) (Entered: 02/06/2017)
49 NOTICE of Voluntary Dismissal Aziz Petitioners' Stipulation of Dismissal by Ammar Aqel Mohammed Aziz, Aqel Muhammad Aziz, Tareq Aqel Mohammed

Case: 1:17-cv-116 As of: 06/04/2017 03:35 PM EDT 11 of 15

02/07/2017
02/07/2017 02/08/2017 02/08/2017 02/08/2017 02/08/2017 02/08/2017 02/08/2017 02/08/2017
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02/08/2017 02/08/2017 02/08/2017 02/08/2017

Aziz, John Does 1−60 (Sandoval−Moshenberg, Simon) (Entered: 02/07/2017)
50 So Ordered re 49 Notice/Stipulation of Voluntary Dismissal with Prejudice, Petitioners John Does 1−60 hereby dismiss their claims without prejudice, pursuant to Fed,R.Civ.P.41(a)(1)(A)(I),filed by Aqel Muhammad Aziz, Tareq Aqel Mohammed Aziz, John Does 1−60, Ammar Aqel Mohammed Aziz. Signed by District Judge Leonie M. Brinkema on 2/7/17. (klau, ) (Entered: 02/07/2017)
51 NOTICE of Voluntary Dismissal and Settlement by Sahar Kamal Ahmed Fadul, Osman Nasreldin (Heaphy, Timothy) (Entered: 02/07/2017)
52 So Ordered re 51 Notice of Settlement and Voluntary Dismissal with prejudice, filed by Osman Nasreldin, Sahar Kamal Ahmed Fadul. Signed by District Judge Leonie M. Brinkema on 2/8/17. (klau, ) (Entered: 02/08/2017)
53 NOTICE of Appearance by Matthew Robert McGuire on behalf of Commonwealth of Virginia (McGuire, Matthew) (Entered: 02/08/2017)
54 Declaration re 23 MOTION for Preliminary Injunction [Declaration of Najwa Elyazgi] by Commonwealth of Virginia. (Raphael, Stuart) (Entered: 02/08/2017)
55 Declaration re 23 MOTION for Preliminary Injunction [Declaration of Tareq Aziz] by Commonwealth of Virginia. (Raphael, Stuart) (Entered: 02/08/2017)
56 Declaration re 23 MOTION for Preliminary Injunction Declaration of Roy Hodge, Esq.] by Commonwealth of Virginia. (Raphael, Stuart) (Entered: 02/08/2017)
57 Declaration re 23 MOTION for Preliminary Injunction [Declaration of National Security Officials] by Commonwealth of Virginia. (Raphael, Stuart) (Entered: 02/08/2017)
58 Consent MOTION for Leave to Appear Amicus Curiae in Support of Intervenor−Petitioners by Anti−Defamation League. (Attachments: # 1 Exhibit 1−−Proposed Order, # 2 Exhibit 2−−Amicus Br.)(Rogaczewski, Joshua) (Entered: 02/08/2017)
59 Brief in Support to 58 Consent MOTION for Leave to Appear Amicus Curiae in Support of Intervenor−Petitioners filed by Anti−Defamation League. (Rogaczewski, Joshua) (Entered: 02/08/2017)
60 Financial Interest Disclosure Statement (Local Rule 7.1) by Anti−Defamation League. (Rogaczewski, Joshua) (Entered: 02/08/2017)
61 Declaration re 23 MOTION for Preliminary Injunction , 31 Brief in Support [Declaration of Mamoona "Mona" Siddiqui] by Commonwealth of Virginia. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22)(Raphael, Stuart) (Entered: 02/08/2017)
62 ORDER that the 58 Motion for Leave to Appear As an Amicus Curiae by ADL be and is GRANTED and ADL is ORDERED to file its proposed amicus−brief as soon as reasonably possible. Signed by District Judge Leonie M. Brinkema on 2/8/17. (klau, ) (Entered: 02/08/2017)
63 Brief in Support of Intervenor−Petitioners filed by Anti−Defamation League. (Rogaczewski, Joshua) (Entered: 02/08/2017)
64 Consent MOTION for Leave to File USB Flash Drive re 31 Brief in Support, 61 Declaration,, [Declaration of Mona Siddiqui] by Commonwealth of Virginia. (Attachments: # 1 Proposed Order)(Raphael, Stuart) (Entered: 02/08/2017)
65 Notice of Appearance of Carmen Green as counsel for Amici Curiae by Americans United for Separation of Church and State, Southern Poverty Law Center. (Green, Carmen) Modified text on 2/8/2017 to correct event(klau, ). (Entered: 02/08/2017)
66 MOTION For Leave to File Brief of Amici Curiae by American Muslim Health Professionals, Council for Advancement of Muslim Professionals, National Arab

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02/08/2017

American Medical Association, The Islamic Medical Association of North America, Muslim Advocates, Muppies, Inc., Network of Arab American Professionals. (Attachments: # 1 Exhibit A − Proposed Brief of Amici Curiae, # 2 Declaration of Michael Kientzle, # 3 Notice of Hearing, # 4 Financial Interest Disclosure Statement of Amici Curiae)(Kientzle, Michael) (Entered: 02/08/2017)
67 Motion to appear Pro Hac Vice by Andrew Nellis and Certification of Local Counsel Carmen Green Filing fee $ 75, receipt number 0422−5372127. Filed by Americans United for Separation of Church and State, Southern Poverty Law Center. (Green, Carmen) (Entered: 02/08/2017)
68 ORDER the 64 Consent Motion for Leave to File USB Flash Drive be and is DENIED. Signed by District Judge Leonie M. Brinkema on 2/8/17. (klau, ) (Entered: 02/08/2017)
69 Motion to appear Pro Hac Vice by Bradley Girard and Certification of Local Counsel Carmen Green Filing fee $ 75, receipt number 0422−5372151. Filed by Americans United for Separation of Church and State, Southern Poverty Law Center. (Green, Carmen) (Entered: 02/08/2017)
70 Motion to appear Pro Hac Vice by Kelly Percival and Certification of Local Counsel Carmen Green Filing fee $ 75, receipt number 0422−5372164. Filed by Americans United for Separation of Church and State, Southern Poverty Law Center. (Green, Carmen) (Entered: 02/08/2017)
71 Motion to appear Pro Hac Vice by Richard Katskee and Certification of Local Counsel Carmen Green Filing fee $ 75, receipt number 0422−5372171. Filed by Americans United for Separation of Church and State, Southern Poverty Law Center. (Green, Carmen) (Entered: 02/08/2017)
72 MOTION for Leave to File Amicus Brief by Americans United for Separation of Church and State, Southern Poverty Law Center. (Attachments: # 1 Proposed Order, # 2 Amicus Brief)(Green, Carmen) (Entered: 02/08/2017)
73 Brief in Support to 72 MOTION for Leave to File Amicus Brief filed by Americans United for Separation of Church and State, Southern Poverty Law Center. (Green, Carmen) (Entered: 02/08/2017)
74 Motion to appear Pro Hac Vice by Eric Rothschild and Certification of Local Counsel Carmen Green Filing fee $ 75, receipt number 0422−5372195. Filed by Americans United for Separation of Church and State, Southern Poverty Law Center. (Green, Carmen) (Entered: 02/08/2017)
75 Financial Interest Disclosure Statement (Local Rule 7.1) by Americans United for Separation of Church and State, Southern Poverty Law Center. (Green, Carmen) (Entered: 02/08/2017)
76 ORDER that 66 Motion For Leave to File Brief of Amici Curiae is GRANTED and it is hereby ORDERED the amici curiae named in the Motion file the proposed brief forthwith. Signed by District Judge Leonie M. Brinkema on 2/8/17. (klau, ) (Entered: 02/08/2017)
77 Brief in Support of Intervenor−Petitioner by Amici Curiae filed by American Muslim Health Professionals, Council for Advancement of Muslim Professionals, Muppies, Inc., Muslim Advocates, National Arab American Medical Association, Network of Arab American Professionals, The Islamic Medical Association of North America. (Kientzle, Michael) (Entered: 02/08/2017)
78 Consent MOTION for Leave to File Memorandum of Law in Support of Intervenor Petitioner Commonwealth of Virginia by Illinois, New York, Massachusetts, Pennsylvania, California, Connecticut, Delaware, Iowa, Maine, Maryland, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Washington, District of Columbia. (Tilghman, Michael) (Entered: 02/08/2017)
79 Consent MOTION for Leave to File a Memorandum of Law in Support of Intervenor−Petitioner the Commonwealth of Virginia by California, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island,

Case: 1:17-cv-116 As of: 06/04/2017 03:35 PM EDT 13 of 15

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Vermont, Washington. (Attachments: # 1 Exhibit 1 −− Proposed Order, # 2 Exhibit 2 −− Amicus Br.)(Tilghman, Michael) (Entered: 02/08/2017)
80 Memorandum in Opposition re 23 MOTION for Preliminary Injunction filed by Wayne Biondi, John Kelly, Kevin K. McAleenan, Donald Trump, U.S. Customs and Border Protection (CBP), U.S. Department of Homeland Security. (Attachments: # 1 Exhibit A)(Barghaan, Dennis) (Entered: 02/08/2017)
81 ORDER that 72 Motion for Leave to File Amicus Brief is GRANTED. The Clerk is directed to accept the proposed amicus brief for filing. Signed by District Judge Leonie M. Brinkema on 2/8/17. (klau, ) (Entered: 02/09/2017)
82 Brief of Amici Curiae in Support to 23 MOTION for Preliminary Injunction filed by Americans United for Separation of Church and State, Southern Poverty Law Center. (klau, ) (Entered: 02/09/2017)
83 ORDER that 79 Motion for Leave by the amici States be and is GRANTED, and amici States shall be ORDERED to file their proposed memorandum of law as soon as reasonably possible. Signed by District Judge Leonie M. Brinkema on 2/9/17. (klau, ) (Entered: 02/09/2017)
84 Brief in Support of Intervenor−Petitioner filed by California, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington. (Tilghman, Michael) (Entered: 02/09/2017)
85 Reply to 23 MOTION for Preliminary Injunction [Reply Brief In Support of Motion for Preliminary Injunction] filed by Commonwealth of Virginia. (Raphael, Stuart) (Entered: 02/09/2017)
86 NOTICE of Appearance by James Edward Tysse on behalf of Fred T. Korematsu Center, Civil Rights Organizations, National Bar Associations of Color (Tysse, James) Modified on 2/10/2017 3 parties created in error instead of one by counsel and refile corrected notice of appearance as docket number 87. (klau, ). (Entered: 02/09/2017)
87 NOTICE of Appearance by James Edward Tysse on behalf of The Fred T. Korematsu Center, Civil Rights Organizations and National Bar Associations of Color (Tysse, James) (Entered: 02/09/2017)
88 MOTION for Leave to File Brief of Amici Curiae by The Fred T. Korematsu Center, Civil Rights Organizations and National Bar Associations of Color. (Attachments: # 1 Proposed Brief of Amici Curiae, # 2 Financial Disclosure, # 3 Proposed Order)(Tysse, James) (Entered: 02/09/2017)
89 Motion to appear Pro Hac Vice by Robert Alan Johnson and Certification of Local Counsel James E. Tysse Filing fee $ 75, receipt number 0422−5374167. by The Fred T. Korematsu Center, Civil Rights Organizations and National Bar Associations of Color. (Tysse, James) (Entered: 02/09/2017)
90 Motion to appear Pro Hac Vice by Gillian B. Gillers and Certification of Local Counsel Carmen Green Filing fee $ 75, receipt number 0422−5374175. Filed by Americans United for Separation of Church and State, Southern Poverty Law Center. (Green, Carmen) (Entered: 02/09/2017)
91 Motion to appear Pro Hac Vice by Jessica Michael Weisel and Certification of Local Counsel James E. Tysse Filing fee $ 75, receipt number 0422−5374197. by The Fred T. Korematsu Center, Civil Rights Organizations and National Bar Associations of Color. (Tysse, James) (Entered: 02/09/2017)
92 Motion to appear Pro Hac Vice by Kristi L. Graunke and Certification of Local Counsel Carmen Green Filing fee $ 75, receipt number 0422−5374195. Filed by Americans United for Separation of Church and State, Southern Poverty Law Center. (Green, Carmen) (Entered: 02/09/2017)
93 Motion to appear Pro Hac Vice by Michelle R. Lapointe and Certification of Local Counsel Carmen Green Filing fee $ 75, receipt number 0422−5374213. Filed by Americans United for Separation of Church and State, Southern Poverty Law

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02/09/2017 02/09/2017 02/09/2017 02/09/2017 02/09/2017 02/09/2017 02/09/2017 02/09/2017 02/09/2017
02/10/2017
02/10/2017 02/10/2017
02/10/2017 02/10/2017 02/10/2017 02/10/2017 02/10/2017 02/10/2017

Center. (Green, Carmen) (Entered: 02/09/2017)
94 Proposed Findings of Fact by Commonwealth of Virginia. (Raphael, Stuart) (Entered: 02/09/2017)
95 ORDER granting 67 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 02/09/2017. (dvanm, ) (Entered: 02/09/2017)
96 ORDER granting 69 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 02/09/2017. (dvanm, ) (Entered: 02/09/2017)
97 ORDER granting 70 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 02/09/2017. (dvanm, ) (Entered: 02/09/2017)
98 ORDER granting 71 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 02/09/2017. (dvanm, ) (Entered: 02/09/2017)
99 ORDER granting 74 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 02/09/2017. (dvanm, ) (Entered: 02/09/2017)
100 ORDER granting 88 Motion for Leave to File Brief of Amicus Curiae. Signed by District Judge Leonie M. Brinkema on 02/09/2017. (dvanm, ) (Entered: 02/09/2017)
101 Brief in Support of the Petitioners filed by The Fred T. Korematsu Center,Civil Rights Organizations and National Bar Associations of Color. (dvanm, ) Modified on 2/10/2017 to correct party filer (klau, ). (Entered: 02/09/2017)
102 Declaration re 77 Brief in Support, by American Muslim Health Professionals, Council for Advancement of Muslim Professionals, Muppies, Inc., Muslim Advocates, National Arab American Medical Association, Network of Arab American Professionals, The Islamic Medical Association of North America. (Kientzle, Michael) (Entered: 02/09/2017)
103 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing held on 2/10/2017. Appearances of counsel. 23 MOTION for Preliminary Injunction is argued in open court and TAKEN UNDER ADVISEMENT. (Court Reporter A. Thomson.)(yguy) (Entered: 02/10/2017)
Notice of Correction re 102 Declaration, The filing user has been notified to file a separate Certificate of Service. (klau, ) (Entered: 02/10/2017)
104 CERTIFICATE of Service re 102 Declaration, by Michael Erich Kientzle on behalf of American Muslim Health Professionals, Council for Advancement of Muslim Professionals, Muppies, Inc., Muslim Advocates, National Arab American Medical Association, Network of Arab American Professionals, The Islamic Medical Association of North America (Kientzle, Michael) (Entered: 02/10/2017)
105 ORDER granting 89 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 2/10/17. (klau, ) (Entered: 02/10/2017)
106 ORDER granting 90 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 2/10/17. (klau, ) (Entered: 02/10/2017)
107 ORDER granting 91 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 2/10/17. (klau, ) (Entered: 02/10/2017)
108 ORDER granting 92 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 2/10/17. (klau, ) (Entered: 02/10/2017)
109 ORDER granting 93 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 2/10/17. (klau, ) (Entered: 02/10/2017)
110 TRANSCRIPT of proceedings held on 2/10/2017, before Judge Leonie M. Brinkema, Court Reporter Anneliese Thomson, Telephone number 703−299−8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days.

Case: 1:17-cv-116 As of: 06/04/2017 03:35 PM EDT 15 of 15

02/13/2017 02/13/2017 02/24/2017 02/27/2017 02/28/2017
03/06/2017 03/15/2017 03/17/2017
03/17/2017 03/30/2017 05/01/2017 06/01/2017

The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 3/13/2017. Redacted Transcript Deadline set for 4/12/2017. Release of Transcript Restriction set for 5/11/2017.(thomson, anneliese) (Entered: 02/10/2017)
111 MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 2/13/2017. (rban, ) (Entered: 02/13/2017)
112 ORDER granting 23 Motion for Preliminary Injunction. See Order for details. Signed by District Judge Leonie M. Brinkema on 2/13/2017. (rban, ) (Entered: 02/13/2017)
113 MOTION to Intervene Pursuant to F.R.C.P.24 by Vincent A. Molino. (Told to Notice) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(klau, ) (Entered: 02/27/2017)
114 ORDER denying 113 Motion to Intervene. Signed by District Judge Leonie M. Brinkema on 2/27/2017. (rban, ) (Entered: 02/28/2017)
115 MOTION for Leave to File an Amicus Brief Raising Political Question Nonjusticiability, a Brief from Amicus Curaie Professor Victor Williams, of the America First Lawyers Association, in Support of President Donald J. Trump by Victor Williams. (Attachments: # 1 Amicus Brief, # 2 Letter)(klau, ) (Entered: 03/01/2017)
116 NOTICE by Wayne Biondi, John Kelly, Kevin K. McAleenan, Donald Trump, U.S. Customs and Border Protection (CBP), U.S. Department of Homeland Security to the Court (Attachments: # 1 Exhibit A)(Barghaan, Dennis) (Entered: 03/06/2017)
117 RESPONSE in Opposition re 115 MOTION for Leave to File filed by Commonwealth of Virginia. (Cox, Trevor) (Entered: 03/15/2017)
118 AMENDED MOTION (and Response to Intervenor Commonwealth of Virginia's Objection to Prior Request) for Leave to File Amicus Brief and Proffered Amended Brief Raising Political Question Nonjusticiability, From Professor Victor Williams of the America First Lawyers Association, in Support of President Donald J. Trump by Victor Williams. (Attachments: # 1 Amended Amicus Brief, # 2 Letter)(klau, ) (Entered: 03/17/2017)
119 ORDER that Motions [Dkt. Nos. 115, 118] be and are DENIED AS MOOT. Signed by District Judge Leonie M. Brinkema on 3/17/17. Copy mail to pro se movant by chambers. (klau, ) (Entered: 03/17/2017)
120 AGREED ORDER that, on or before May 1,2017, respondents shall answer or otherwise respond to the Commonwealth of Virginia's intervention complaint. Signed by District Judge Liam O'Grady on 3/30/17. (klau, ) (Entered: 03/30/2017)
121 AGREED ORDER that, on or before June 1, 2017, Respondents shall answer or otherwise respond to the Commonwealth of Virginia's intervention complaint. No further extension will be granted. Signed by District Judge Leonie M. Brinkema on 5/1/17. (klau, ) (Entered: 05/01/2017)
122 ORDERED that this action is dismissed without prejudice, dissolving the Preliminary Injunction against enforcement of § 3 of EO−1, entered on 2/13/2017 112 ; but this dismissal does not vacate the Memorandum Opinion issued by this Court on 2/13/2017 111 . Signed by District Judge Leonie M. Brinkema on 6/1/2017. (rban, ) (Entered: 06/02/2017)

 
 COMMONWEALTH ofVlRGlNIA
Offiu oftlti! Attorn~· G~n,rul

Muk R. llnri~~t Atton~coy GtMorll

January 29,2017

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The Honorable: John Kelly Secretary Department of Homeland Security Washington, D.C. 20528

The Honorable Dana J. Boente
U.S. Attorney, Eastern District of Virginia 2100 Jamieson Ave. Alexandria, VA 22314

Kevin K. McAJeenan Acting Commissioner U.S. Customs & Border Protection Washington, D.C. 20528

Wayne Biondi Port Director ofthe Area Port of \Va•hington Dulles, U.S. Customs & Border Protct~ion Washington, D.C. 20528

Re: This weekend's events at Dulles International Airport

Gentlemen:

I am deeply concerned about events at Dulles International Airport on January 2 7, 28, and 29, 2017, in which U.S. Customs & Border Protection personnel ("CBP") detained air
passengers who arrived at the airport following issuance by President Trump of h is Executive
Order dated January 27, 20 17, entitled "Protecting the Nation From Foreign Terrorist Entry Into the United States."

On Saturday, January 28, a t approximately 9:30p.m., the United States District Court for the Eastern District of Virginia issued a temporary restraining order C TRO") in A=i:" Tntmp, directed against all respondents: President Trump; the Department of Homeland Security; U.S. Customs and Border Protection; Secretary Kelly; Acting Commissioner McAlec.nan; and Port Director Biondi. The TRO enjoined respondents: ( I) to "pennit lawyers access to all legal permanent residents being detained at Dulles International Airport"; and (2) to refrain rrom ~1-emoving petitioners- lawful pennanent residents at Dulles lntemationaJ Airport- for a period of7 days rrom the issuance of this Order." It was \\idely reported on Saturday n ight and yesterday that CBP officia1s refused to penn it such access to counsel~ even after rcc.civing notice oftheTRO.
Although many aspects of these events arc disturbing, I am particularly troubled that Virginia res idents \Verc detained~ or returned to the country from which their traveJoriginated,

January 29, 2017 Page2
despite having been previously issued lawful permanent residence status or lawful student or work visa•. Accordingly, I respectfully request that you provide the follo\\1 ng information:
Lall'ful Perma nent Rtsideots
I) How many persons with lawful permanent resident status were detained a t Dulles on January 27, 28, and 29? Of those detained, how many were removed from the United States before CBP personnel at Dulles received actual notice of the TRO? How many were removed after suc-h notice was received? W11at time on January 28 did CBP receive actual notice of the TRO and hmv and to whom was that notice provided?
2) Why did the respondents in A=i= disobey the TRO 's directive to permit lawyers to have access to the detained lawfUl pennancnt residents? Ple-a"ie provide-the names and lttles of all offictals responsible tor that decision.
3) Ofthose lawful permanent residents detained at Dulles on January 27, 28, or 29, how many shmvcd a residence address in the Commonwealth of Virginia? Please provide the name and address ofsuch Virginia residents. For those who were removed from the United States, please state the date the person was removed and identity the country to which that person wa~ removed. If CBP or lmmigr.:ttions and CtLo;:toms Enforcement ("ICE") continues to detain any such Virginia resident, please '1ate the place whcre that Virginia resident is currently detained.
T ravelers with valid student or work visas
4) How many persons with valid stodent or work visas were dt"tained at Dulles on January 27, 28, and 29 pursuant to the authority of the Executive Order? Of those detamed, how
many showed a residence address in the Commonwealth of Virginia? Of those wrth a Virginia residence. how many were removed from the United States and how many were
permitted entry?
5) Does the CBP continue to detain any Virginia residents \vho were traveling with a valid student or\Vork visa? Ifso. please provide the names and addresses ofsuch Virginia residents, their nationality, and the type.ofvLo;a on which the person was traveling.
I would appreciate your providing this infOrmation as soon as practicable. but by no later than February I. If you have any questions about this request, please feel free to speak with Solicitor Generdl, Stuart A. Raphael (804-786· 7240).
Thank you tor your prompt attention to this matter.
Sincerely,
0 M~<R.. ?-~
Mark R. Herring