AYAD LAW, P.L.L.C. 645 Griswold St., Ste. 2202 DETROIT, MICHIGAN 48226
P: (313) 983-4600 | F: (313) 983-4665

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE (“ACRL”), SAMIR ALMASMARI, SABAH ALMASMARY, HANA ALMASMARI, MOUNIRA ATIK, WALID JAMMOUL, ABUBAKER ABBASS,

on behalf of themselves and others similarly situated,

Plaintiffs,

v.

Case No.:

Hon.:

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,
Defendants.

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NABIH H. AYAD (P59518) AYAD LAW, PLLC Attorney for Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 Phone: (313) 983-4600 Fax: (313) 983-4665 Email: nayad@ayadlaw.com
Helal Farhat (P64872) Farhat & Associates, PLLC Counsel for the Arab American Chamber of Commerce 6053 Chase Rd. Dearborn, MI 48126
Nida Samona (P45356) Counsel for the Arab Chaldean Council (“ACC”) 363 W. Big Beaver Rd., Suite 300 Troy, MI 48084
Ali Hammoud (P73076) Hammoud, Dakhlallah & Associates PLLC Counsel for Yemini American Benevolent Association (“YABA”) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126
Rula Aoun (P79119) Co-Counsel for ACRL 4917 Schaefer Rd. Dearborn, MI 48126
Kassem Dakhlallah (P70842) Hammoud, Dakhlallah & Associates PLLC Co-Counsel for ACRL 6050 Greenfield Rd., Suite 201 Dearborn, MI 4812
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Mona Fadlallah (P64197) Natalie Qandah (P58434) Vida Law Group, PLLC Co-Counsel for ACRL 43050 Ford Rd., #160 Canton, MI 48187
There is no other pending or resolved civil action arising out of the same transaction or occurrence alleged in this Complaint.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF NOW COMES Plaintiffs, Arab American Civil Rights League (“ACRL”),
Samir Almasmari, Sabah Almasmary, Hana Almasmari, Mounira Atik, Walid Jammoul, Abubaker Abbass (collectively “Plaintiffs”) by and through their attorneys and state the following in support of their complaint:
INTRODUCTION 1. On January 27, 2017 Defendant President Donald Trump signed an Executive
Order stating that the “entry into the United States” of non-citizens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen is “suspended” for 90 days from the date of the Executive Order. 2. All Plaintiffs have either been denied ability to return to the United States or face a real and immediate threat of not being permitted to travel to Detroit, their place of residence, in violation of U.S. law. 3. Although temporary injunctions were entered in various district courts around the United States, Plaintiffs file this present suit due to fact that the existing
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orders do not encompass green card holders that were not in route or detained by the United States. This Complaint addresses green card holders that are attempting to fly back to the United States, or are attempting to fly to the United States, that have either been denied flight or a threat of being denied flight due to the Executive Order. Additionally, even though the administration has now backed off of denying legal permanent residents, Plaintiffs still face the immediate threat of being denied entry due to the way the executive order is written.
PARTIES 4. Plaintiff ACRL is a non-profit organization and has its principal place of
business at 4917 Schaefer Rd., Dearborn, Michigan 48126. 5. The ACRL is committed to protecting the civil rights of Arab Americans
through education and advocacy. The organization, which is based out of Dearborn, Michigan, works to build coalitions, promote understanding and cooperation and combat negative stereotypes. Led by prominent civil rights attorneys and advocates, the ACRL offers the community it serves a solid commitment to ensuring that their rights are protected and preserved. 6. At least seven (7) of the ACRL’s members that are effected by the Executive Order are prepared to be standing witnesses. These members have either already experienced concrete harms by being denied ability to return to the
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United States or face a real and immediate threat of not being permitted to travel to Detroit, their place of residence, in violation of U.S. law. 7. Plaintiff Samir Almasmari has been a lawful permanent resident of the United States since March 2015. He resides in Wayne County, Michigan. Plaintiff Almasmari is a citizen of Yemen. As he attempted to return to the United States from Yemen, he was denied boarding in Egypt to return to the United States. He is Muslim. 8. Plaintiff Sabah Almasmary has been a lawful permanent resident of the United States since 2004. Plaintiff Almasmary resides in Wayne County, Michigan. Her spouse is a United States citizen and she has seven United States citizen children. Plaintiff Almasmary is a citizen of Yemen and travelled to Yemen to visit her family. She has a real and immediate threat of not being permitted to travel to Detroit, in violation of U.S. law since the Executive Order was signed. She is Muslim. 9. Plaintiff Hana Almasmari is a lawful permanent resident of the United States and resides in Wayne County, Michigan. She is the spouse of a United States citizen. Plaintiff Almasmari is a citizen of Yemen and has a real and immediate threat of not being permitted to travel to Detroit, in violation of U.S. law since the Executive Order was signed. She is Muslim. 10.Plaintiff Mounira Atik is a lawful permanent resident of the United States and is a resident of Wayne County, Michigan. Plaintiff Atik is a citizen of Yemen
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and has a real and immediate threat of not being permitted to travel to Detroit, in violation of U.S. law since the Executive Order was signed. She is Muslim. 11.Plaintiff Walid Jammoul was issued a visa on January 22, 2017 to enter the United States as a lawful permanent resident of the United States. Plaintiff Jammoul is the spouse of a US citizen that resides in Wayne County, Michigan. Plaintiff Jammoul is a citizen of Syria and has a real and immediate threat of not being permitted to travel to Detroit, in violation of U.S. law since the Executive Order was signed. He is Muslim. 12.Plaintiff Abubaker Abbass is a United States Citizen. Plaintiff resides in Wayne County, Michigan. His nine-year-old son is a citizen of Yemen and was denied a visa to join his family in the United States. Plaintiff is the child of a United States citizen, he is eligible for automatic Unites States citizenship and is immediately eligible to travel to the United States. Plaintiff Abbass is therefore being denied the ability to return to the United States with his son. 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.Defendant John Kelly is the Secretary of DHS. He is sued in his official capacity.
16.Defendant Kevin K. McAleenan is the Acting Commissioner of CBP. He is sued in his official capacity.
17.Defendant Donald Trump is the President of the United States. Trump authored the executive action giving rise to this Complaint. He is sued in his official capacity. JURISDICTION AND VENUE
18.This Court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331 and 1361. This court has further remedial authority pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.
19.Venue properly lies within the Eastern District of Michigan because all Plaintiffs are residents of this district and Defendants are employees of the United States Government. 28 U.S.C. § 1391(e). FACTUAL ALLEGATIONS
20.Plaintiffs adopt and incorporate by reference all prior paragraphs as though fully set forth herein.
21.On January 20, 2017, Donald Trump was inaugurated as the forty-fifth President of the United States. During his campaign, he stated that he would ban Muslims from entering the United States.
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22.On January 27, one week after his inauguration, 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.”
23.In statements to the press in connection with his issuance of the EO, President Trump stated that his order would help Christian refugees to enter the United States.
24.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 entry to the United States. Among other things, the EO imposes a 120-day moratorium on the refugee resettlement program as a whole; proclaims that “the entry of nationals of Syria as refugees is detrimental to the interests of the United States”; and therefore singles out Syrian refugees for an indefinite “suspension” on their admission to the country.
25.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.
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26.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.
27.Congress has provided that lawful permanent residents in Plaintiffs’ 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, is in removal proceedings, has committed one of a class of enumerated offenses, or has attempted to enter without inspection.
28.None of the foregoing circumstances apply to Plaintiffs and therefore they are not deemed to be seeking admission and have a right to enter. In In re ColladoMunoz, 21 I. & N. Dec. 1061, 1065-1066 (1998) (en banc) (requiring immigration judge to look at 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 (2012) (citing In re Collado-Munoz and recognizing that the definition supersedes previous statute’s definition of entry).
29.Defendants are also preventing Plaintiffs’ travel in violation of the Due Process Clause. In Rosenberg v. Fleuti, 372 U.S. 449, 462 (1963), the
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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 continually 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”). 30.As lawful permanent residents of the United States, Plaintiffs are attempting to come to the United States to be with their family. They have been left in limbo while being denied the ability to travel to the United States for no reason other than the discriminatory and unconstitutional EO.
I. FIFTH AMENDMENT – PROCEDURAL DUE PROCESS 31.Plaintiffs adopt and incorporate by reference all prior paragraphs as though
fully set forth herein. 32. 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
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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. Ashcrof, 353 F.3d 228, 239 (3d Cir. 2003) (alterations in original) (quoting Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996)). 33.In particular, lawful permanent residents entering the United States have constitutional due process rights with respect to their entry to the United States. In evaluating the due process right available to a lawful permanent resident, “courts must consider 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. “ Landon v. Plasencia, 459 U.S. 21, 34 (1982). 34.Defendants’ actions, taken pursuant to the EO, violate the procedural due process rights guaranteed by the Fifth Amendment.
II. FIRST AMENDMENT – ESTABLISHMENT CLAUSE 35.Plaintiffs adopt and incorporate by reference all prior paragraphs as though
fully set forth herein. 36.The EO exhibits hostility to a specific religious faith, Islam, and gives
preference to other religious faiths, principally Christianity. The EO therefore
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violates the Establishment Clause of the First Amendment by not pursuing a course of neutrality with regard to different religious faiths.
III. FIFTH AMENDMENT – EQUAL PROTECTION 37.Plaintiffs adopt and incorporate by reference all prior paragraphs as though
fully set forth herein. 38.The EO discriminates against Plaintiffs 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. 39.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). 40.Defendants have demonstrated an intent to discriminate against Plaintiffs on the basis of religion through repeated public statements that make clear that 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
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Admission of Refugees, Promises Priority for Christians, Wash. Post (Jan. 27, 2017). 41.Applying a general law in a fashion that discriminates on the basis of religion in this way violates Plaintiffs’ rights to equal protection under the Fifth Amendment Due Process Clause. Hayden v. Country of Nassau, 180 F.3d 42, 48 (2d Cir. 1999); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). Plaintiffs 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 bear the burden of demonstrating a “prima facie case if discriminatory purposes.” Vill. Of Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 266-67 (1997). 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. 42.Here, President Trump and senior staff have made clear that the EO will be applied to primarily exclude individuals on the basis of their national origin and being Muslim. See, e.g., Donald J. Trump, Donald J. Trump Statement On Preventing Muslim Immigration, (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-
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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 Plaintiffs. See supra. 43.Thus, Defendants have applied the EO with forbidden animus and discriminatory intent in violation of the equal protection of the Fifth Amendment and violated Plaintiffs’ equal protection rights.
IV. FIFTH AMENDMENT – SUBSTANTIVE DUE PROCESS VIOLATION OF RIGHT TO FAMILIAL ASSOCIATION
44.Plaintiffs adopt and incorporate by reference all prior paragraphs as though fully set forth herein.
45.Plaintiffs face the real and immediate threat of being denied entry into the United States solely pursuant to an executive order issued on January 27, 2017, which expressly discriminates against Plaintiffs on the basis of their country of origin and was substantially motivated by animus towards Muslims. See supra Count Six.
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46.Plaintiffs planned to travel to the United States, pursuant to valid immigrant visas, to be with family.
47.The denial of Plaintiffs’ ability to travel to the United States to be with family constitutes an unconstitutional denial of the fundamental right to familial association. See Pittman v. Cuyahoga Cty. Dep't of Children & Family Servs., 640 F.3d 716, 727 (6th Cir. 2011); See Lehr v. Robertson, 463 U.S. 248, 261, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983). V. ADMINSTRATIVE PROCEDURE ACT
48.Plaintiffs adopt and incorporate by reference all prior paragraphs as though fully set forth herein.
49.Plaintiffs face the real and immediate threat of being denied entry into the United States solely pursuant to an executive order issued on January 27, 2017, which expressly discriminates against Plaintiffs on the basis of their country of origin and was substantially motivated by animus towards Muslims. See supra Count Six.
50.The EO exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity.
51.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).
52.The INA and implementing regulations, including 8 U.S.C. § 1225(b)(1) (expedited removal), 8 C.F.R. §§ 235.3(b)(4), 208.30 and 1003.42; 8 U.S.C.
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§ 1158 (asylum), and 8 U.S.C. § 1231(b)(3) (withholding of removal), 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 Plaintiffs to an opportunity to apply for asylum, withholding of removal, and CAT relief. 53.Defendants actions in preventing Plaintiffs’ travel into the United States 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).
VI. RELIGIOUS FREEDOM RESTORATION ACT 54.Plaintiffs adopt and incorporate by reference all prior paragraphs as though
fully set forth herein. 55.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 form Muslims on account of their religion. In doing so, the EO places a substantial burden on Plaintiffs’ exercise of religion in a way that
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is not the least restrictive means of furthering a compelling government interest.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs, request that this Honorable Court grant the following relief: A. Issue an immediate stay of the Executive Order denying Plaintiffs ability
to enter the United States; B. Issue an injunction ordering Defendants not to detain or stop any individual
solely on the basis of the EO; C. Enter a judgment declaring that Defendants’ actions in preventing
Plaintiffs from traveling to the United States is and will be unauthorized by statute and contrary to law; D. Enter an order striking the EO and give an order stating it is unconstitutional; E. Award Plaintiffs reasonable attorney’s fees and costs pursuant to the Equal Access to Justice Act; and F. Grant such other relief as the Court deems appropriate.
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Dated: January 31, 2017

Respectfully submitted,
AYAD LAW, P.L.L.C.
/s/ Nabih H. Ayad____ Nabih H. Ayad (P59518) Counsel for all Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com
Helal Farhat (P64872) Farhat & Associates, PLLC Counsel for the Arab American Chamber of Commerce 6053 Chase Rd. Dearborn, MI 48126
Nida Samona (P45356) Counsel for the Arab Chaldean Council (“ACC”) 363 W. Big Beaver Rd., Suite 300 Troy, MI 48084
Ali Hammoud (P73076) Hammoud, Dakhlallah & Associates Counsel for Yemini American Benevolent Association (“YABA”) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126
Rula Aoun (P79119) Co-Counsel for ACRL 4917 Schaefer Rd. Dearborn, MI 48126

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Kassem Dakhlallah (P70842) Hammoud, Dakhlallah & Associates Co-Counsel for ACRL 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 Mona Fadlallah (P64197) Natalie Qandah (P58434) Vida Law Group, PLLC Co-Counsel for ACRL 43050 Ford Rd., #160 Canton, MI 48187
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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 visaissuance 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.

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2
Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.
Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security's determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty 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

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information requested pursuant to subsection (d) of this section until compliance occurs.
(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.
(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.
(h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order.
Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm 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

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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.
(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.

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(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.
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

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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 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.

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7 (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.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE (“ACRL”), SAMIR ALMASMARI, SABAH ALMASMARY, HANA ALMASMARI, MOUNIRA ATIK, WALID JAMMOUL, ABUBAKER ABBASS,

on behalf of themselves and others similarly situated,

Plaintiffs,

v.

Case No.: 17−cv−10310

Hon.: Victoria A. Roberts

Mag.: Stephanie D. Davis

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,
Defendants.

EX-PARTE MOTION FOR TEMPORARY RESTRAINING ORDER

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INTRODUCTION On January 27, 2017 Defendant President Donald Trump signed an Executive Order stating that the “entry into the United States” of non-citizens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen is “suspended” for 90 days from the date of the Executive Order. All Plaintiffs are either legal permanent residents or have valid immigrant visas and have either been denied their ability to travel to the United States or face a real and immediate threat of not being permitted to travel to Detroit, their place of residence, in violation of U.S. law. Though the administration’s interpretation of the Order has changed repeatedly, it has applied the Order to block longtime legal permanent residents from returning to this country, and the Order’s text purports to grant the administration authority to continue denying entry to such residents. This entry ban is harming Plaintiffs and those similarly situated, along with their families whose loved ones are trying to visit them. In addition to suffering these irreparable harms, Plaintiffs have a strong likelihood of success on their claims. The Executive Order has both the intent and effect of discriminating based on national origin and religion, in violation of the Constitution. Thus, strict scrutiny applies, and the order clearly fails to be narrowly tailored. Even if rational basis review applied, the Order would fail because it is motivated by discriminatory animus and bears no relationship to its purported ends. While preventing terrorist attacks is an important goal, the order does nothing to
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further that purpose by denying admission to Plaintiffs or any of those similarly situated to Plaintiffs. The Order also violates the Immigration and Nationality Act.
In short, the Order is illegal, is causing and will continue to cause irreparable harm to Plaintiffs and those similarly situated, and is contrary to the public interest. As every law student learns in their first year of law school, “[t]he government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). This Court should fulfill its constitutional role as a check on executive abuse and temporarily bar enforcement of the Order nationwide.
ARGUMENT A. Standard for Granting Temporary Relief
To obtain a temporary restraining order, Plaintiffs must establish 1) a likelihood of success on the merits; 2) that irreparable harm is likely in the absence of preliminary relief; 3) that the balance of equities tips in Plaintiffs’ favor; and 4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008); Fed. R. Civ. P. 65(b)(1); O'Toole v. O'Connor, 802 F.3d 783, 788 (6th Cir. 2015).
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B. Plaintiffs Are Likely to Prevail on the Merits Because the Executive Order is Illegal in Many Respects The Executive Order violates the Constitution in many respects as well as
federal statutes. As explained below, Plaintiffs are highly likely to prevail on the merits.
i. The Executive Order Violates the Equal Protection Clause The Fifth Amendment has an “equal protection component,” Harris v. McRae,
448 U.S. 297, 297 (1980), and noncitizens “com[e] within the ambit of the equal protection component of the Due Process Clause,” Kwai Fun Wong v. United States, 373 F.3d 952, 974 (9th Cir. 2004). In equal protection analysis, the court first decides whether a challenged classification burdens a suspect or quasi-suspect class. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 219, 132 L. Ed. 2d 158, 115 S. Ct. 2097 (1995). “If a protected class [such as race, religion, or national origin] or fundamental right is involved, this Court must apply strict scrutiny.” Midkiff v. Adams Cty. Reg'l Water Dist., 409 F.3d 758, 770 (6th Cir. 2005). “[C]lassifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny.” Graham v. Richardson, 403 U.S. 365, 372 (1971) (footnotes omitted); see also City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (religion is an “inherently suspect distinction”).
While courts generally give more latitude to the political branches in the immigration context, see, e.g., Zadvydas v. Davis, 533 U.S. 678, 695 (2001), the
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political branches are not granted carte blanche. In protecting its borders, this country does not set aside its values or its Constitution. Id. (the political branches’ “power is subject to important constitutional limitations”); INS v. Chadha, 462 U.S. 919, 941-42 (1983) (Congress must choose “a constitutionally permissible means of implementing” its power over immigration).
Here, the Executive Order cannot pass muster under any standard of review. The Executive Order was purely created out of irrational fear and blind hostility and is at odds with the fundamental American promise that all are entitled to equal protection under the law.
a. Strict Scrutiny Applies First, the Executive Order plainly discriminates based on national origin by singling out people from seven countries for an outright ban on admission to the United States. Although administration officials have suggested that the Executive Order will not apply to green card holders, despite such a suggestion being at odds with the plain language of the Executive Order, the text of the Executive Order remains in effect regardless of the ever-changing instructions from Defendants and Plaintiffs in the case at bar, with valid green card, have in fact been denied entry. Lawful permanent residents are accorded the same constitutional protections as United States citizens. See Kwong Hai Chew v. Colding, 344 U.S. 590, 596 (1953); see also Bridges v. Wixon, 326 U.S. 135 (1945) (“[O]nce an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the
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Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment.”). “[C]lassifications. . . based on nationality . . . are inherently suspect and subject to close judicial scrutiny,” Graham, 403 U.S at 372, and are “odious to a free people whose institutions are founded upon the doctrine of equality.” Oyama v. California, 332 U.S. 633, 646 (1948) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)).
Second, the Executive Order discriminates based on religion. On its face, the Executive Order requires immigration officials to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Sec. 5(b). Public comments by President Trump and his advisers make clear that the intent of this provision is to give preference to Christian refugees while disadvantaging Muslim refugees. Compl. ¶ 23, 40. Importantly, Plaintiffs need not show that intent to discriminate against Muslims was the sole purpose of the challenged action, but only that it was a ‘motivating factor.’ See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977) (“does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes . . . [only] proof that a discriminatory purpose has been a motivating factor in the decision”). That standard is plainly met here based on the evidence presented.
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Consequently, there can be no dispute that the executive order uses suspect classifications. And it does so not in furtherance of a congressionally authorized purpose, but rather in direct violation of federal law, which prohibits discrimination “in the issuance of an immigrant visa because of the person’s . . . nationality.” 8 U.S.C. § 1152(a)(1)(A). In short, this is an extraordinary case that falls well outside the run-of-the mill immigration context in which deference to the political branches applies. Since the President explicitly used suspect classifications in violation of federal law strict scrutiny applies.1
b. The Executive Order Fails Strict Scrutiny The Executive Order fails under strict scrutiny. The ban on admission of legal permanent residents and those with valid immigrant visas aliens is not narrowly tailored to further a compelling government interest. The order cites three rationales to support its temporary ban on admission of nationals of seven countries: “To temporarily reduce investigative burdens on relevant agencies . . . , to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals.”
1 “When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638; 72 S. Ct. 863, 871; 96 L. Ed. 1153, 1200 (1952) (Jackson, J., concurring) (footnotes omitted).
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Sec. 3(c); see Compl., Exhibit A. The first rationale—essentially a desire to conserve resources by discriminating—is not compelling, and in any case the order is not narrowly tailored to achieve any of these goals.
The Order is severely overbroad. Section 3(c) bans those from disfavored countries without any evidence that any individual poses a threat of terrorism. It sweeps within its ambit infant children, the disabled, long-time U.S. residents, those fleeing terrorism, those who assisted the United States in conflicts overseas, and many others who the government has no reason to suspect are terrorists. Defendants simply cannot establish any factual basis for presuming that all people from a given country pose such a great risk that an outright entry ban—rather than less extreme measures—is warranted.
The Supreme Court has emphasized that equal protection guards against sweeping generalizations about categories of people based on traits such as national origin or religion.2 Here, there is no connection between the rationales advanced to support the Executive Order and the means used to further those rationales.
2 See, e.g., Shaw v. Reno, 509 U.S. 630, 647 (1993) (striking down racial gerrymander because “[i]t reinforces the perception that members of the same racial group . . . think alike, share the same political interests, and will prefer the same candidates at the polls”); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (strict scrutiny “ensures that the means chosen ‘fit’ [a purported] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate . . . prejudice or stereotype”).
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ii. Plaintiffs Are Likely to Prevail on the Merits of Their Claim that the Executive Order Violates the Establishment Clause
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.
“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). Thus, where a law “grant[s] a denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality.” Id. at 246. In Larson, the law at issue did not mention any religious denomination by name, but drew a distinction between religious groups based on the percentage of their revenue received from nonmembers, which had the effect of harming certain religious groups. Id. at 231-32. Because the law was focused on religious entities and had the effect of distinguishing between them in a way that favored some, the Court applied strict scrutiny. Id. at 246-47.
The Court Larson approach applies here. The Executive Order’s refugee provisions explicitly distinguish between members of religious faiths, granting priority to “refugee claims made by individuals on the basis of religious-based persecution” only if “the religion of the individual is a minority religion in the
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individual’s country of nationality.” Section 5(b). President Trump and his advisers have made clear that the very purpose of this order is to tilt the scales in favor of Christian refugees at the expense of Muslims. Compl. ¶ 40. Accordingly, this case involves just the sort of discrimination among denominations that failed strict scrutiny in Larson, and the Executive Order should likewise be invalidated.
Even assuming arguendo that the Executive Order does not explicitly distinguish between denominations, the Court would still need to apply the threepart “Lemon test” to determine whether the government has violated the Establishment Clause. Lemon v. Kurtzman, 403 U.S. 602 (1971). “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’” Id. at 612. While the government must satisfy all three prongs, here it can satisfy none.
First, the Executive Order’s purpose is not “secular” because President Trump’s purpose in issuing this Order—as confirmed by his own public statements—is to “endorse or disapprove of religion.” Wallace v. Jaffree, 472 U.S. 38, 75-76 (1985). In analyzing government purpose, it is “the duty of the courts” to distinguish a “sincere” secular purpose from one that is either a “sham” or that is “secondary” to a “predominantly religious” purpose. McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 865 (2005) (internal quotation marks and citations omitted). This duty requires a Court to scrutinize all “probative evidence,”
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to exercise “common sense,” and to refuse “to turn a blind eye to the context in which [the] policy arose.” Id. at 866 (alteration in original). In so doing, a court looks carefully at both the “historical context” of the government’s action and “the specific sequence of events leading to [its] passage.” Id. (alteration in original). As the Supreme Court has explained, this inquiry into purpose at times requires invalidation of an action that otherwise would have been constitutional: “One consequence of taking account of the purpose underlying past actions is that the same government action may be constitutional if taken in the first instance and unconstitutional if it has a sectarian heritage.” Id. at 866 n.14. In short, given that President Trump’s “actual purpose” in issuing this Order is to “endorse or disapprove of religion,” Wallace, 472 U.S. at 75-76, the Order violates the first prong of the Lemon test.
The Order also violates Lemon’s second prong, which requires that the “principal or primary effect . . . be one that neither advances nor inhibits religion.” See Lemon, 403 U.S. at 612. In light of the evidence cited above, there is no doubt that the answer to this question is in the affirmative.
As to the third prong, the Order “foster[s] ‘an excessive governmental entanglement with religion” by favoring one religious group over another, which “engender[s] a risk of politicizing religion.” Larson, 456 U.S. at 252-53. Selectively burdening those of the Muslim faith and favoring those of the Christian faith creates improper “entanglement with religion.” In short, because the Executive Order fails
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the Larson test and every prong of the Lemon test, it unequivocally violates the Establishment Clause.
iii. Plaintiffs are Likely to Prevail on the Merits of Their Claim that the Executive Order Violates Due Process
“Procedural due process requires that the government's deprivation of life, liberty, or property, even if consistent with substantive due process, "be implemented in a fair manner.” Prater v. City of Burnside, 289 F.3d 417, 431 (6th Cir. 2002). 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. Ashcrof, 353 F.3d 228, 239 (3d Cir. 2003) (alterations in original) (quoting Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996)).
In particular, lawful permanent residents and those with valid immigrant visas (who will become lawful permanent residents upon arrival) entering the United States have constitutional due process rights with respect to their entry to the United States. In evaluating the due process right available to a lawful permanent resident, “courts must consider 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. “ Landon v. Plasencia, 459 U.S. 21, 34 (1982).
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Section 3(c) of the Executive Order denies entry to the United States to all persons from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen, including visaholders and legal permanent residents with the legal right to leave and re-enter the United States. Under that policy, legal permanent residents and visaholders travelling abroad will be deported if they attempt to re-enter the United States, and those who remain will be forced to refrain from international travel to avoid that devastating result. This draconian restriction violates the due process rights of those individuals.
The Fifth Amendment protects all persons who have entered the United States “from deprivation of life, liberty, or property without due process of law.” Mathews v. Diaz, 426 U.S. 67, 69, 77 (1976) (internal citation omitted). This protection applies to all persons within our borders, regardless of immigration status. Id. (Due Process Clause of the Fifth Amendment extends even to those “whose presence in this country is unlawful, involuntary, or transitory”); Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
A “temporary absence from our shores” does not deprive visaholders and legal permanent residents of their right to due process. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213 (1953) (citing Kwong Hai Chew v. Colding, 344 U.S. 590, 601 (1953) (holding that denial of re-entry to legal permanent resident must comport with due process where resident had spent four months abroad); Ricketts v. Simonse, No. 16 CIV. 6662 (LGS), 2016 WL 7335675, at *2–3 (S.D.N.Y. Dec. 16,
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2016) (legal permanent resident who had spent a few weeks abroad and was caught with drugs upon re-entry entitled to due process).
Due process requires that legal permanent residents and visaholders not be denied reentry to the United States without “at a minimum, notice and an opportunity to respond.” Raya-Vaca, 771 F.3d at 1204. “Aliens who have entered the United States—whether legally or illegally—cannot be expelled without the government following established procedures consistent with the requirements of due process.” Lanza v. Ashcroft, 389 F.3d 917, 927 (9th Cir. 2004) (citing Mezei, 345 U.S. at 212). Specifically, due process guarantees that individuals denied re-entry be provided a “full and fair hearing of his [or her] claims” and “a reasonable opportunity to present evidence on his [or her] behalf.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000); Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011) (same).
The denial of re-entry to all visaholders and legal permanent residents from the impacted countries, without an opportunity to be heard, is a prima facie violation of those due process principles. The Executive Order provides that all individuals from the impacted countries be denied entry to the United States, irrespective of their immigration status. On its face, the Order bars legal permanent residents from impacted countries from reentry into the United States if they travel aboard. All Plaintiffs are directly impacted. The denial of re-entry to legal permanent residents and such visaholders absent an opportunity to be heard, much less “proceedings
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conforming to . . . due process of law,” is anathema to the Constitution. Shaughnessy, 345 U.S. at 212.
The Order’s impact on the right to travel also violates due process. The Executive Order deprives noncitizens of the right to travel, a constitutionally protected liberty interest. Kent v. Dulles, 357 U.S. 116, 125 (1958) (holding that Secretary of State could not deny passports to Communists on the basis that right to travel abroad is a constitutionally protected liberty interest). The right to travel “may be as close to the heart of the individual as the choice of what he eats, or wears, or reads,” and is “basic in our scheme of values.” Id. at 126. For visaholders or legal permanent residents with family abroad, the de facto travel ban also denies the right to connect with their families, “a right that ranks high among the interests of the individual.” Id. In contrast to these vital liberty interests, the denial of re-entry to noncitizens with lawful immigration status does nothing to advance the government’s interest in the “efficient administration of the immigration laws at the border.” Landon, 459 U.S. at 34. The denial of entry to all persons from the seven affected countries, irrespective of immigration status, and resulting travel ban violate the due process rights of legal permanent residents and visaholders.
C. Plaintiffs’ Are Suffering and Will Continue to Suffer Irreparable Harm Due to the Executive Order To obtain preliminary relief, Plaintiffs must show that irreparable harm is
likely before a decision on the merits can be issued. Plaintiffs meet this test on
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several grounds. First, because Plaintiffs shown a likelihood of success on its Establishment
Clause claim, harm is presumed. See, e.g., Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303 (D.C. Cir. 2006) (“[W]here a movant alleges a violation of the Establishment Clause, this is sufficient, without more, to satisfy the irreparable harm prong for purposes of the preliminary injunction determination.”); Parents’ Ass’n of P.S. 16 v. Quinones, 803 F.2d 1235, 1242 (2d Cir. 1986) (applying same rule).
Second, even aside from the Establishment Clause claim, Plaintiffs’ complaint, motion, and supporting evidence demonstrate overwhelming irreparable harm. The Sixth Circuit held that “if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001). As explained in detail above and within the complaint, Plaintiffs have had numerous constitutional rights impaired or threatened. As such, a finding of irreparable harm is mandated.
D. The Balance of Equities and Public Interest Greatly Favor Preliminary Relief The Court “must balance the competing claims of injury and must consider
the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24. Since this case involves the government as a party, the
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balance of equities factor merges with the fourth factor, public interest. Nken v. Holder, 556 U.S. 418, 435, 129 S. Ct. 1749, 173 L. Ed. 2d 550 (2009).
The balance tips sharply in favor of Plaintiffs. The balance of equities and public interest always favors “prevent[ing] the violation of a party's constitutional rights.” G & V Lounge v. Mich. Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir. 1994). In addition, Plaintiffs have shown irreparable, concrete harm as they are unable to travel to their place of residence in the United States. Additionally, as detailed above, the overbread of the order means that it does little if anything to further its alleged purpose of preventing terrorism. And the requested relief is narrowly tailored to affect only those parts of the Order causing Plaintiffs’ harm. While Plaintiffs seeks a nationwide injunction, that relief is appropriate for two reasons: (1) Congress and the courts have emphasized the importance of uniformity in applying immigration policies nationwide; and (2) nationwide relief is necessary to ensure that Plaintiffs and those similarly situated are not stopped at other ports of entry around the country or interfered with by officials in Washington, DC, on their way anywhere else. See, e.g., Texas v. United States, 787 F.3d 733, 768-69 (5th Cir. 2015) (affirming nationwide injunction to ensure uniformity and provide full relief).
CONCLUSION The federal courts are the only entities that can immediately halt abuses by the executive branch. Plaintiffs ask this Court to play its constitutional role and grant
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a nationwide temporary restraining order until such time as the Court can further consider the merits.
WHEREFORE, Plaintiffs respectfully request that this Honorable Court grant a nationwide temporary restraining order until such time as the Court can further consider the merits.

Dated: February 2, 2017

Respectfully submitted,
AYAD LAW, P.L.L.C.
/s/ Nabih H. Ayad____ Nabih H. Ayad (P59518) Counsel for all Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com
Helal Farhat (P64872) Farhat & Associates, PLLC Counsel for the Arab American Chamber of Commerce 6053 Chase Rd. Dearborn, MI 48126
Nida Samona (P45356) Counsel for the Arab Chaldean Council (“ACC”) 363 W. Big Beaver Rd., Suite 300 Troy, MI 48084

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Ali Hammoud (P73076) Hammoud, Dakhlallah & Associates Counsel for Yemini American Benevolent Association (“YABA”) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 Rula Aoun (P79119) Co-Counsel for ACRL 4917 Schaefer Rd. Dearborn, MI 48126 Kassem Dakhlallah (P70842) Hammoud, Dakhlallah & Associates Co-Counsel for ACRL 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 Mona Fadlallah (P64197) Natalie Qandah (P58434) Vida Law Group, PLLC Co-Counsel for ACRL 43050 Ford Rd., #160 Canton, MI 48187
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs, v.

Case No. 17-10310 Honorable Victoria A. Roberts

DONALD TRUMP, et al.,

Defendants. ______________________________/

ORDER REGARDING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER [Doc. 5]

On January 27, 2017, President Donald Trump issued an Executive Order titled,

“Protecting the Nation From Foreign Terrorist Entry Into the United States.” Among

other things, this Executive Order affects travel to and from the United States of lawful

permanent residents and other non-citizens from seven designated countries.

On February 2, 2017, Plaintiffs filed an ex parte motion for temporary restraining

order. [Doc. 5]. Ultimately, they seek a permanent injunction that “prohibits the denial

of entry into the United States of legal permanent residents and those with valid

immigrant visas on the basis of [the] January 27, 2017 Executive Order.” Four of the

named Plaintiffs are lawful permanent residents.

The remaining Plaintiffs are an immigrant who was issued a visa to enter the

United States as a lawful permanent resident; a United States citizen whose nine-year-

old son was denied a visa to join his family in the United States; and the Arab American

Civil Rights League, whose members have been adversely affected by the Executive

Order. These Plaintiffs seek relief that is not addressed in this order.

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Upon the filing of the motion for temporary restraining order, the Court held a telephone conference. Attending were Nabih Ayad, Kassem Dakhlallah, and Ali Hammoud for Plaintiffs, and Gisela Westwater, Briana Yuh, and Adrian Pander for Defendants. During the call, counsel for Defendants pointed out that the White House issued a memorandum on February 1, 2017, which clarifies that the Executive Order does not apply to lawful permanent resident of the United States. After the hearing, Defendants filed the memorandum setting forth the clarification. [See Docs. 7, 7-1].
Based on this clarification, the Court orders that the United States is PERMANENTLY ENJOINED from applying Sections 3(c) and 3(e) of the January 27, 2017 Executive Order against lawful permanent residents of the United States.
This injunction applies to Plaintiffs Samir Almasmari, Sabah Almasmary, Hana Almasmari, and Mounira Atik, as well as all other lawful permanent residents of the United States who are similarly situated.
After additional briefing, the Court will rule on the temporary restraining order request of the remaining Plaintiffs.
IT IS ORDERED. S/Victoria A. Roberts Victoria A. Roberts United States District Judge
Dated: February 2, 2017
The undersigned certifies that a copy of this document was served on the attorneys of record by electronic means or U.S. Mail on February 2, 2017. s/Linda Vertriest Deputy Clerk
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs, v.

Civil No. 17-10310 Hon. VICTORIA A. ROBERTS Mag. Judge Stephanie Dawkins Davis

DONALD TRUMP, et al.,

Defendants. ____________________________________/

MOTION TO DISSOVE INJUNCTION AND AMEND ORDER
REGARDING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER [Doc. 8]

INTRODUCTION

Defendants (“the Government”) hereby respectfully request that this Court

amend its prior order permanently enjoining the Government from applying the

executive order of January 27, 2017, titled “Protecting the Nation from Foreign

Terrorist Entry into the United States” (hereinafter, “the Executive Order”), to

Lawful Permanent Residents (“LPRs”). The injunction should be dissolved and

the order amended for two reasons. First, because both parties agreed on the

record that the Executive Order does not apply to LPRs, including LPR plaintiffs,

there is no actual dispute between the parties, and thus no basis for invoking the

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Court’s jurisdiction. Second, a court cannot issue a permanent injunction unless the moving party makes an affirmative showing – and the court makes affirmative findings – that it carries its burden of proof on each of four factors: (1) success on the merits, (2) the potential for irreparable harm, (3) the balance of hardships, and (4) whether an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); O’Toole v. O’Connor, 802 F3d 783, 788 (6th Cir. 2015); Federal Deposit Ins. Corp. v. Jones, 846 F.2d 221, 240 (4th Cir. 1988) (“The district court’s failure to set forth reasons for its decisions is reversible error, for the requirements of Rules 52(a) and 65(d) are mandatory.”)
A dismissal for lack of standing—or any other defect in subject matter jurisdiction—must be without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits. See Fed. R. Civ. P. 41(b); see also, e.g., S. Walk at Broadlands Homeowner’s Ass’n v. Openband at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (citing Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-94 (1998)). Here, Plaintiffs did not and could not show success on the merits because Article III proscribes a decision on the merits that would be advisory in nature; Plaintiffs did not and cannot show irreparable harm where the Executive Order does not apply to LPRs or the LPR plaintiffs; Plaintiffs did not and could not show hardship because – even in the absence of the
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injunction – the LPRs plaintiffs are able to travel into the United States without being subject to the Executive Order; and Plaintiffs did not and cannot establish that the public would benefit from an injunction because, quite to the contrary, the public interest is harmed when orders are issued against the Government in violation of law, particularly when those laws are immigration laws. The Supreme Court in Nken suggests that improperly staying Government action in immigration does harm the public interest. See Nken v. Holder, 556 U.S. 418, 436 (2009).
For these reasons, the Government respectfully asks this Court to vacate its earlier order and instead issue the proposed amended order submitted herewith, which would provide LPR plaintiffs with confirmation of their exclusion from the Executive Order while respecting the jurisdictional and relief standards in Article III and Federal Rule of Civil Procedure 65, respectively.
SUMMARY OF THE FACTS On January 27, 2017, the President of the United States Donald J. Trump, issued Executive Order No. 13769 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” On January 31, 2017, Plaintiffs filed a “Complaint for Declaratory and Injunctive Relief” challenging enforcement of the Executive Order and its application to Plaintiffs. (ECF No. 1). The Complaint named four Plaintiffs who are LPRs, Samir Almasmari, Sabah Almasmary, Hana Almasmari, and Mounira Atik. (ECF No. 1 at 5-6). The remaining two named
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Plaintiffs, Walid Jammoul and Abubaker Abbass, are not LPRs. (ECF No. 1 at 6). On February 1, 2017, White House counsel issued a clarification to the Acting Secretary of State, the Attorney General, and the Secretary of Homeland Security that Sections 3(c) and 3(e) do not apply to lawful permanent residents. (ECF No. 7-1).
On February 2, 2017, Plaintiffs filed an ex parte motion for temporary restraining order. (ECF No. 5). On that same day, the Court held a telephone conference with all parties’ counsel. During the telephone conference, counsel for Defendants informed the Court of the White House memorandum. Counsel for Defendants explained that since Sections 3(c) and 3(e) of the Executive Order do not apply to LPRs, the claims for injunctive relief by named lawful permanent resident Plaintiffs Samir Almasmari, Sabah Almasmary, Hana Almasmari, and Mounira Atik are moot. Opposing counsel did not contradict counsel for Defendants’ representations and did not argue that any LPR plaintiff had been denied entry since release of the White House memorandum. Nonetheless, the Judge stated that she would enter “an Order that covers lawful permanent residents.” (Transcript at 13 ¶ 12-13.) After the hearing, Defendants filed the memorandum setting forth the White House memo clarification. (ECF No. 7, 7-1).
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Following the telephone conference, the Court issued an “Order Regarding Plaintiffs’ Motion for Temporary Restraining Order.” (ECF No. 8). On page 2 of this Order, the Court referred to the White House memorandum [see ECF No. 7, 7-1] and stated:
Based on this clarification, the Court orders that the United States is PERMANENTLY ENJOINED from applying Sections 3(c) and 3(e) of the January 27, 2017 Executive Order against lawful permanent residents of the United States. This injunction applies to Plaintiffs Samir Almasmari, Sabah Almasmary, Hana Almasmari, and Mounira Atik, as well as all other lawful permanent residents of the United States who are similarly situated. (ECF No. 8). As a result of this Order, the Court issued a nationwide injunction that applies not only to the four named LPR plaintiffs in the lawsuit, but “all other lawful permanent residents of the United States who are similarly situated.” Id. at 2.
ARGUMENT I. This Court lacked jurisdiction to issue an injunction because there was no
case or controversy. As the Sixth Circuit has directed, “‘[u]nder Article III of the Constitution, [a
court’s] jurisdiction extends only to actual cases and controversies. [Courts] have no power to adjudicate disputes which are moot.’” McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc) (quoting Crane v. Indiana High Sch. Athletic Ass’n, 975 F.2d 1315, 1318 (7th Cir. 1992)). Thus, where “the issues presented are no longer ‘live’,” Gottfried v. Med. Planning
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2:17-cv-10310-VAR-SDD Doc # 15 Filed 02/06/17 Pg 6 of 10 Pg ID 116
Servs., Inc., 280 F.3d 684, 691 (6th Cir. 2002) (emphasis omitted), “federal courts are without power to decide questions,” N. Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam), that may have been justiciable at an earlier stage in the lawsuit. Arizonans for Official English v. Arizona, 520 U.S. 43, 72 (1997).
The Executive Order does not apply to LPRs. See Louhghalam v. Trump, Mem. & Order at 6-7, Civ. No. 17-10154-NMG (D. Mass. Feb. 3, 2017) (finding that there is no conduct to enjoin regarding LPRs because the Executive Order does not apply to LPRs). Moreover, if there was confusion as to that point on January 27, 2017, it was speedily resolved when the White House issued its clarification on February 1, 2017. Therefore, at the time this Court issued its injunction on February 2, 2017, there was no longer a live case or controversy between the parties as to the applicability of the Executive Order to the LPR plaintiffs. Thus, the court lacked jurisdiction to issue the injunction. Louhghalam, Order at 7, No. 17-10154-NMG, (“With respect to those individuals, there is ‘no ongoing conduct to enjoin’”)(citing Town of Portsmouth v. Lewis, 813 F.3d 54, 58 (1st Cir. 2016)); New Eng. Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 18 (1st Cir. 2002) (remarking that it would be “pointless” to declare the constitutionality of a policy that had been revised during litigation); Libertarian Party of Ohio v. Husted, 497 F. App'x 581, 583 (6th Cir. 2012) (holding that
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because the challenged house bill was repealed, “there was nothing to enjoin or declare unconstitutional.”). The injunction should be vacated. II. The injunction issued did not comport with Rule 65’s requirements.
Second, the injunction must be vacated because Plaintiffs failed to establish – and this Court made none of the findings regarding – the four injunction factors. The four factors adopted by the Sixth Circuit when considering whether to issue a preliminary injunction are:
“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.” O’Toole v. O’Connor, 802 F3d 783, 788 (6th Cir. 2015) (quoting Winter, 55 U.S. at 7). “The standard for a permanent injunction is essentially the same as for a preliminary injunction with the exception that the plaintiff must show actual success on the merits rather than likelihood of success.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n.12 (1987). “Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat’l Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir. 2000). Regarding the first factor, it is undisputed that Plaintiffs cannot succeed on the merits because there is no jurisdiction for this Court to reach the merits where there is no live dispute between the parties. Similarly, Plaintiffs cannot show
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irreparable harm because the Government, like Plaintiffs, interpret the Executive Order as not applying to the LPR plaintiffs. The balance of equities tip in favor of the Government; the LPR plaintiffs suffer no harm regardless of the existence of the injunction because the Executive Order already does not apply to them; Defendants, on the other hand, are harmed by an Order limiting the Executive’s lawful authority in matters of immigration and national security. For the same reasons, an injunction is not in the public’s interest. The public suffers when the Government is subject to injunctions that resolve no dispute and confer no rights but may still be invoked against the Government. N.L.R.B. v. Express Pub. Co., 312 U.S. 426, 433 (1941) (noting that an “obey the law” injunction can open a party to contempt proceedings for the indefinite future” and that such an encumbrance should not be imposed lightly).
In addition to the four factor analyses required by the Sixth Circuit, Rule 65(d)(1)(A) requires a court to “state the reasons why [the injunction] issued.” That requirement was also not complied with here. Although the Court was clear on the record that is does not want Plaintiffs to encounter difficulties when returning to the United States, the Court fails to explain why an injunction is the correct remedy, especially in light of the Government’s explanation that LPRs were returning to the country at that time unaffected by the Executive Order.
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CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court

amend the Order by dissolving the permanent injunction.

Dated: February 6, 2017

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General Civil Division

WILLIAM C. PEACHEY Director

GISELA A. WESTWATER Assistant Director

EREZ REUVENI Senior Litigation Counsel

s/ Briana Yuh BRIANA YUH Trial Attorney District Court Section Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 200044 Telephone: (202) 532-4165 Facsimile: (202) 305-7000 Briana.Yuh@usdoj.gov

Counsel for Defendants

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2:17-cv-10310-VAR-SDD Doc # 15 Filed 02/06/17 Pg 10 of 10 Pg ID 120
CERTIFICATION OF SERVICE
I hereby certify that on February 6, 2017, I electronically filed the foregoing
with the Clerk of the Court for the United States District Court for the Eastern
District of Michigan by using the CM/ECF system. I certify that all participants in
the case are registered CM/ECF users and that service will be accomplished by the
CM/ECF system. Notification of such filing will send to the following:
Helal A. Farhat Hfarhat@saflegal.com
Kassem M. Dakhlallah Kassemdakhlallah@aol.com
Natalie C. Qandah Natalie@vidalawpllc.com
Nabih H. Ayad Ayadlaw@hotmail.com
Michael J. Steinberg Msteinberg@aclumich.org
s/ Briana Yuh BRIANA YUH Trial Attorney District Court Section Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 200044 Telephone: (202) 532-4165 Facsimile: (202) 305-7000 Briana.Yuh@usdoj.gov
Counsel for Defendants
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2:17-cv-10310-VAR-SDD Doc # 15-1 Filed 02/06/17 Pg 1 of 1 Pg ID 121

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.
Plaintiffs,
v.
DONALD TRUMP, et al.

No. 17-cv-10310-VAR-SDD [PROPOSED] ORDER

Defendants.

This Court, having considered the pleadings, exhibits, and Defendants’

Motion to Dissolve Injunction and Amend Order:

HEREBY VACATES the Order issued by the Court on February 2, 2017.

[Doc. 8.]. The Court also confirms hereby that the Executive Order does not apply

to Lawful Permanent Residents as explained in the guidance issued by the White

House Counsel on February 1, 2017.

After additional briefing, the Court will rule on the temporary restraining

order request of the remaining Plaintiffs.

IT IS ORDERED.

Dated: February __, 2017

S/____________________ Victoria A. Roberts United States District Judge

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 2:17-cv-10310-VAR-SDD Doc # 20 Filed 02/07/17 Pg 1 of 22 Pg ID 133

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE (“ACRL”), SAMIR ALMASMARI, SABAH ALMASMARY, HANA ALMASMARI, MOUNIRA ATIK, WALID JAMMOUL, NAGI ALGAHAIM, KOKAB ALGAZALI, SHAIKA SHAGERA, HEND ALSHAWISH, YUSRA AL SOUFI, HASAN AL-AHMED, SALHA AL-TALAQA,

on behalf of themselves and others similarly situated,

Plaintiffs,

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,

Case No.: 17−cv−10310 Hon.: Victoria A. Roberts Mag.: Stephanie D. Davis

Defendants. __________________________________________________________________/

PLAINTIFFS’ OPPOSITION TO MOTION TO DISSOLVE INJUNCTION

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On February 2, 2017, this Court issued an order enjoining Defendants “from
applying Sections 3(c) and 3(e) of the January 27, 2017 Executive Order against
lawful permanent residents of the United States.” Doc #8, Pg ID 70. Defendants
now move to dissolve that injunction.1 Defendants assert that “the Executive
Order does not apply to LPRs,” so “there is no actual dispute between the parties.”
Doc #15, Pg ID 111. Defendants’ motion must be rejected.
It is hornbook law that a defendant’s voluntary cessation of challenged
conduct does not eliminate a case or controversy. See Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). This is a classic case
of voluntary cessation.
1 As a threshold matter, Defendants’ motion is not properly before the Court because Defendants failed to comply with E.D. Mich. L.R. 7.1(a), which requires that movants must seek concurrence in the relief requested before filing a motion. To meet this requirement, Local Rule 7.1(a)(2) explains that there must be “a conference between the attorneys ... in which the movant explained the nature of the motion and its legal basis and requested but did not obtain concurrence in the relief sought.” L.R. 7.1(a)(2)(A). If a conference was not possible, then the counsel for the movant must certify that “despite reasonable effort specified in the motion or request, the movant was unable to conduct a conference.” LR 7.1(a)(2)(B) (emphasis added). Defendants here did not seek concurrence prior to filing their motion, nor did they explain their failure to do so. A “failure to seek concurrence warrants denial of the Motion.” Ethridge v. Countrywide Home L, Inc., No. 1210705, 2012 WL 12884664, at *1 (E.D. Mich. June 21, 2012), report and recommendation adopted No. 12-10705, 2012 WL 12884668 (E.D. Mich. July 25, 2012). See also Intl Union v. TRW Auto US, LLC, No. 11-cv-14630, 2016 WL 5661568, at *1 (E.D. Mich. September 30, 2016).
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On its face, the Executive Order applies equally to all “aliens from countries referred to in section 217(a)(12) of the INA,” without drawing any distinction between lawful permanent residents and other aliens. Executive Order § 3(c). In its initial implementation of the order, the Government interpreted it as applying to lawful permanent residents. It was only after this lawsuit was filed that Defendants sought to “clarify” that the order did not apply to lawful permanent residents. But that purported clarification did not change the language of the Executive Order, and Defendants could return to their initial interpretation of that order at any moment. Defendants’ actions thus are a paradigm case in which a post-litigation concession does not eliminate a case or controversy.
Nor are Defendants correct that the Plaintiffs failed to establish the relevant preliminary injunction factors. Defendants’ substantive argument on this point rests entirely on their erroneous assertion that there is no live controversy between the parties. Although this Court might appropriately issue a more extensive opinion explaining the basis for the February 2 injunction now that the most emergent aspects of the situation have passed, there is no ground to vacate that injunction.
BACKGROUND On January 27, 2017, the President issued the Executive Order that Plaintiffs challenge here. Section 3(c) of that order “proclaim[s] that the immigrant and
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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 accordingly “suspend[s] entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order.” Section 3(g) of that order provides for case-by-case waivers of the exclusion mandated by Section 3(c): “Notwithstanding a suspension pursuant to subsection (c) 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.”
On its face, Section 3(c) suspends the entry of “aliens” from the listed countries. The provision makes no distinction between lawful permanent residents of the United States and any other aliens. And, indeed, when the Government initially implemented the Executive Order, it interpreted that section as applying fully to lawful permanent residents. On January 28, a spokesperson for the Department of Homeland Security told Reuters that the order “will bar green card holders.”2 Over the weekend of January 28 to 29, according to news reports,
2 Green Card Holders Will Need Additional Screening: White House, REUTERS, Jan. 29, 2017, http://www.reuters.com/article/us-usa-trump-immigrationgreencard-idUSKBN15C0KX (quoting Gillian Christensen, acting Department of Homeland Security spokeswoman).
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government officials were applying the order to detain or bar the entry of lawful
permanent residents from the listed countries.3 As at least one lawsuit alleged, the
Government was going so far as to coerce lawful permanent residents from the
listed countries to sign paperwork renouncing their LPR status.4 On the morning
3 See Michael D. Shear et al., Judge Blocks Trump Order on Refugees Amid Chaos and Outcry Worldwide, N.Y. TIMES, Jan. 28, 2017, https://www.nytimes.com/2017/01/28/us/refugees-detained-at-us-airportsprompting-legal-challenges-to-trumps-immigration-order.html?_r=0 (“Human rights groups reported that legal permanent residents of the United States who hold green cards were being stopped in foreign airports as they sought to return from funerals, vacations or study abroad.”); Chas Danner, Judge Temporarily Blocks Part of Trump’s Ban on Refugees and Citizens From 7 Muslim-Majority Nations, NEW YORK, Jan. 28, 2017, http://nymag.com/daily/intelligencer/2017/01/trumpbans-citizens-from-7-muslim-nations-and-all-refugees.html (“By late Saturday afternoon, however, it was clear that Trump’s order would be interpreted by U.S. authorities in the broadest possible terms, with all foreign nationals from the seven countries, including current U.S. visa holders like green-card-carrying lawful permanent residents being unable to enter or board transportation for the U.S.”); Dara Lind, Trump’s Immigration Ban Initially Applied To Up To 500,000 Green Card Holders, VOX, Jan. 30, 2017, http://www.vox.com/2017/1/28/14425150/green-card-ban-muslim-trump (“Over the weekend, many permanent residents (green-card holders) were denied entry into the US at the border, or refused to board planes, because they’re nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, or Yemen — countries that are covered by the 90-day ban Trump signed into effect on Friday night.”); Josh Gerstein & Matthew Nussbaum, White House Tweaks Trump's Travel Ban To Exempt Green Card Holders, POLITICO, Feb. 1, 2017, http://www.politico.com/story/2017/02/white-house-green-card-holders-no-longercovered-by-trump-executive-order-234505 (“More than 100 green-card holders were detained as they arrived at U.S. airports in the first day or so that Trump’s order was in place.”). 4 See Aziz v. Trump, 1:17-cv-116 (E.D. Va., filed Jan. 28, 2017).
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of January 29, the White House Chief of Staff said, on a national news program, that “of course” the exclusion applied to lawful permanent residents.5
On the evening of January 29, the Secretary of Homeland Security endorsed
the reading of the Executive Order as covering lawful permanent residents when he
issued a “statement” that indicated that lawful permanent residents would typically
receive “case-by-case” waivers under Section 3(g) of the Executive Order:
In applying the provisions of the president's executive order, I hereby deem the entry of lawful permanent residents to be in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.
Statement by Secretary John Kelly on the Entry of Lawful Permanent Residents
into the United States, Jan. 29, 2017, go.usa.gov/x9AhN. The Secretary did not
state that Section 3(c) of the Executive Order did not reach lawful permanent
residents. Rather, by relying on the case-by-case waiver authority, the Secretary’s
statement suggested that lawful permanent residents are covered by Section 3(c)
and thus can receive relief from the entry bar only by receiving a waiver under
5 Krishnadev Calamur, What Trump’s Executive Order on Immigration Does—and Doesn’t Do, ATLANTIC, Jan. 30, 2017, https://www.theatlantic.com/news/archive/2017/01/trump-immigration-ordermuslims/514844/ (“But when pressed by Chuck Todd, the show’s host, on whether the order affected green-card holders, [Priebus] replied: ‘Well, of course it does. If you’re traveling back and forth, you’re going to be subjected to further screening.’”).
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Section 3(g).6 Nothing in the Secretary’s statement in any way committed the Government to waive Section 3(c)’s bar in any particular lawful permanent resident’s case. Rather, the statement indicated that individuals for whom there is “significant derogatory information” would not be eligible for the case-by-case waiver. The statement did not explain what “significant derogatory information” is, and that term is not defined in immigration law.
Moreover, because the Secretary’s statement was a pure ex cathedra pronouncement, without any indication that it was required by the text of the Executive Order or any statute, even the minimal solace it offered to lawful permanent residents could be taken back at any time. Indeed, according to recent news reports, the President’s chief strategist did not want the Secretary to take even the minimal steps he took to protect lawful permanent residents—and took the extraordinary step of confronting the Secretary and directing him not to issue the waiver order.7 It is impossible for the Plaintiffs, or this Court, to predict how
6 See also Department of Homeland Security, “Fact Sheet: Protecting The Nation from Foreign Terrorist Entry To the United States” (January 29, 2017) (“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)), available at: https://www.dhs.gov/news/2017/01/29/protecting-nation-foreign-terrorist-entryunited-states. 7 See Josh Rogin, Inside The White House-Cabinet Battle Over Trump’s Immigration Order, WASH. POST, Feb. 4, 2017,
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differences of opinion within the White House about the scope of the Executive Order will be resolved, and whether the government will once again reverse course.
Plaintiffs, who include four lawful permanent residents who are citizens of the listed countries, filed this action on January 31. The next day, on February 1, the White House Counsel issued a two-paragraph memorandum purporting to “clarify” that Sections 3(c) and 3(e) of the Executive Order “do not apply” to lawful permanent residents. 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 (Feb. 1, 2017). The memorandum noted, with some understatement, that “there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States.” Id. It accordingly sought “to remove any confusion.” Id. But the White House Counsel’s memorandum did not purport to modify, amend, or revoke any the text of the Executive Order—something only the President, and not the White House Counsel, has the power to do—nor did it point to even a single word of Sections 3(c) and 3(e) that suggested that those provisions did not apply to lawful permanent residents. Rather, it offered only “interpretive guidance.” Id. Like the
https://www.washingtonpost.com/news/josh-rogin/wp/2017/02/04/the-whitehouse-cabinet-battle-over-trumps-immigration-ban/?utm_term=.14c553e790d8.
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Secretary’s statement from three days earlier, the White House Counsel’s supposed clarification could be taken back at any time.
Because of the repeated shifts in the Government’s interpretation and enforcement of the Executive Order, the LPR plaintiffs are deterred from traveling outside of the United States for business or family visits. Absent an injunction mandating that the Executive Order not be applied to bar lawful permanent residents, the LPR Plaintiff who is currently outside the United States fears that he will not be able to enter the United States, and he and the other Plaintiffs (who are now in the U.S.), fear that if they leave the country again, they will not be permitted to return.
The declaration of Susan Reed, managing attorney for the Michigan Immigrant Rights Center, shows that this government’s ever-shifting position has left not just lawful permanent residents, but also attorneys specializing in immigration law uncertain about whether lawful permanent residents will be barred from entry if they leave the country. See Reed Declaration, Exh. 1. Ms. Reed explains that:
Based on the unprecedented nature of and lack of clarity in the Executive order, the continually evolving nature of the subsequent executive agency actions, the unresolved litigation, and the many qualifications in Department of Homeland Security statements, it is my opinion as an immigration practitioner that I cannot issue a general statement that any Lawful Permanent Residents, but particularly not those from the seven affected countries, may safely
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travel and expect to be readmitted to the United States. I cannot encourage anyone to expect to enter the U.S. on the same basis that they did before the issuance of the January 27, 2017 executive order and I cannot clearly communicate in practical terms what the new standards for entry are based on the information I have. …
Because of the extreme brevity of the government’s statements on Lawful Permanent Residents, the initial confusion about the meaning of “immigrant visa” in the implementation of the Executive Order, the ongoing developments in litigation nationwide as the Department of Justice seeks to defend the Executive Order, and the uncertainty about the meaning of “significant derogatory information” or the standards for determining whether Lawful Permanent Residents are eligible for “exceptions” to the ban, I have continued to advise Lawful Permanent Residents from countries affected by the ban against travel.
Id. at ¶¶ 17, 20.
Accordingly, the Michigan Immigrant Rights Center website currently
warns:
At first, the government said that the ban fully included people with Lawful Permanent Resident or “Green Card” status as well as any other visas. On Sunday, January 29, 2017, the government said that Lawful Permanent Residents would be allowed to return to the United States unless there is “significant derogatory information” about them. Immigration lawyers do not know what will be considered “significant derogatory information.” So, we are discouraging all citizens of those countries from traveling outside of the United States for any reason. This includes travel to Canada.
See www.michiganimmigrant.org.
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ARGUMENT I. In Light of the Government’s Repeated Shifts in Interpretation of
the Executive Order, There is a Live Controversy in This Case. “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.’ ‘[I]f it did, the courts would be compelled to leave “[t]he defendant . . . free to return to his old ways.” ’ ”Friends of the Earth, 528 U.S. at 189 (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n.10 (1982); United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)). Accordingly, to prevail on their motion to vacate the injunction, Defendants must meet a “stringent” standard of showing that “‘subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Id. (quoting United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968)) (emphasis added). Defendants bear the “‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up again.” Id. (quoting Concentrated Phosphate, 393 U.S. at 203) (emphasis added). Defendants cannot come close to meeting that demanding standard. Although Defendants now assert flatly that “[t]he Executive Order does not apply to LPRs,” Doc #15, Pg ID 116, the Executive Order does not on its face distinguish between LPRs and others from the listed countries. The order bars all “entry into
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the United States” by aliens from the listed countries. Executive Order § 3(c). The Government’s current interpretation of that language conflicts with the interpretations government officials—up to and including the Secretary of Homeland Security—placed on the Executive Order during the days preceding the White House Counsel’s February 1 memorandum.
Although the Government now takes the position, in accordance with that memorandum, that the Executive Order does not reach lawful permanent residents, the White House Counsel could withdraw that memorandum at any time. Given the many changes in the Government’s position up to this point, there is certainly at least a reasonable prospect that Defendants will change their position again. Such a change is especially likely because: (1) news reports indicate that there is disagreement among senior White House staff about whether the Executive Order should apply to LPRs; (2) the White House Counsel’s two-paragraph memorandum contains absolutely no legal analysis or effort to tie its interpretation to the text of the Executive Order; (3) the White House Counsel has no power to alter the terms of an Executive Order; and (4) it is the Department of Justice’s Office of Legal Counsel, and not the White House Counsel, whose job it is “to provide controlling advice to Executive Branch officials on questions of law.” U.S. Dep’t of Justice, Office of Legal Counsel, Best Practices for OLC Legal Advice and Written Opinions (July 16, 2010),
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https://www.justice.gov/sites/default/files/olc/legacy/2010/08/26/olc-legal-adviceopinions.pdf. In light of these facts, Defendants simply cannot show that it is “absolutely clear” that there is no reasonable prospect that they will revert to their former interpretation, Friends of the Earth, 528 U.S. at 189.
This case is strikingly similar to A. Philip Randolph Institute v. Husted, 838 F.3d 699 (6th Cir. 2016), in which the Sixth Circuit rejected a claim that voluntary cessation deprived the court of a case or controversy. The plaintiffs in A. Philip Randolph sued to challenge certain procedures the State of Ohio used to keep its voter rolls current. In particular, the plaintiffs alleged that the “confirmation notice form” the state sent to voters before removing them from the rolls did not comply with the requirements of the National Voter Registration Act, 52 U.S.C. § 20501 et seq., and the Help America Vote Act, 52 U.S.C. § 20901 et seq. During the litigation, the defendant Secretary of State implemented a new confirmation notice form that allegedly complied with federal law; he argued that the new form deprived the court of a case or controversy. A. Philip Randolph Inst., 838 F.3d at 712-713.
The Sixth Circuit rejected that argument. The court reasoned that “the new confirmation notice form was issued pursuant to the Secretary’s ‘directive,’ rather than any legislative process. Thus, this is not a case in which reversing the
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cessation would be particularly burdensome.” Id. at 713.8 The court also “note[d] that the circumstances of the Secretary’s issuance of the new form”—in the midst of pending litigation challenging the old form—“d[id] not inspire confidence in his assurances regarding the likelihood of recurrence.” Id. So too here, it would not be at all difficult for Defendants to, once again, change their position regarding the application of the Executive Order to lawful permanent residents. And the Government’s repeated changes in position to this point hardly “inspire confidence.” Id.
This case is also similar to the Sixth Circuit’s decision in Akers v. McGinnis, 352 F.3d 1030 (6th Cir. 2003). In Akers, the plaintiffs challenged a written rule of the Michigan Department of Corrections (MDOC); during the course of the litigation, the rule was substantially revised. The Sixth Circuit rejected MDOC’s mootness argument: “In the present case, as the promulgation of work rules appears to be solely within the discretion of the MDOC, there is no guarantee that MDOC will not change back to its older, stricter Rule as soon as this action
8 As the A. Philip Randolph court noted, even adopting new legislation might not have been enough to meet the defendant’s burden, for “the Supreme Court has declined to defer to a governmental actor’s voluntary cessation, even where that cessation occurred pursuant to legislative process.” Id. (citing City of Mesquite, 455 U.S. at 289 (“[T]he city’s repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court’s judgment were vacated.”)).
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terminates.” Id. at 1035. Here, as in Akers, the Defendants are free to change their interpretation of the Executive Order at any time.
Defendant’s argument is further weakened by the fact that the government made repeated unilateral changes to its interpretation of the Executive Order, reversing course repeatedly and under political pressure. See Wall v. Wade, 714 F.3d 492, 497 (4th Cir. 2013) (holding that a state prison’s Ramadan policy change did not moot the claims, especially since “the fact that at least three separate policies have been utilized [] since 2009 indicates some degree of doubt that the new policy will remain in place for long”); Longstreth v. Maynard, 961 F.2d 895, 900 (10th Cir. 1992) (finding free exercise challenge was not moot due to change in hair grooming policy since policy had been repeatedly changed in the past); Charles v. Daley, 749 F.2d 452, 458 (7th Cir. 1984) (rejecting mootness argument because state had repeatedly made changes to the policy in question, thereby persuading the court that additional changes reverting back to the challenged policy “would not be unlikely”). As in Wall, Longstreth, and Charles, based on the history of changes in interpretation of the Executive Order – changes which here have occurred in rapid succession – there is every reason to believe that another policy reversal would take place.
Defendants rely on the unpublished case of Libertarian Party of Ohio v. Husted, 497 F. App’x 581 (6th Cir. 2012), but that case is inapposite. There,
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plaintiffs alleged that a state ballot access law violated the First Amendment. While the litigation was ongoing, the state repealed the statute; as a result, there remained “nothing to enjoin or declare unconstitutional.” Id. at 583. Here, by contrast, the Executive Order that Plaintiffs challenge remains on the books. That order, on its face, still excludes “aliens” from the listed countries, without distinguishing between lawful permanent residents and others. All that has changed is that, after initially interpreting the Executive Order in one way, the Government now takes the directly opposite position and asserts that the Order does not reach lawful permanent residents. Absent an injunction, there is nothing to stop the Government from reversing its position again.
As Ms. Reed of the Michigan Immigrant Rights Center explains, if the government once again changes course, the potential harm to lawful permanent residents is great:
Lawful Permanent Residents in my experience tend to have overwhelming equities in the U.S. and generally have extremely low tolerance of risk with regard to being excluded or removed from the U.S.. Given the consequences that Lawful Permanent Residents face if they are excluded or removed from the U.S., I have had to carefully consider our organization’s public information and ensure that our organization does not suggest courses of action that could result in exclusion or removal. Reed Declaration, ¶18. Ms. Reed gives the example of a lawful permanent resident from one of the listed countries who is a physician, has lived in the United States for twenty years, is the son a U.S. citizen mother, and works in a medically
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underserved area. He happened to be visiting friends in Canada when the Executive Order went into effect, and Ms. Reed assisted him in crossing the Canadian border on January 29, 2017, including preparing documents that would help him advocate for his readmission based on a “case-by-case” exception to the Executive Order for lawful permanent residents. Id.
The individual LPR Plaintiffs all have family outside of the United States, whom they would like to visit, and therefore the uncertainty about the meaning of the Executive Order is causing them real harm. But they are deterred from leaving the country by the prospect that the Government will change its position once again and bar them from returning. Many members of the organizational Plaintiff ACRL are in the same position. An injunction is necessary to prevent that harm.
The proposed order that Defendants attach to their motion would not protect the individual Plaintiffs and the Plaintiff organization ACRL’s members from that harm. The proposed order includes a sentence that states the following: “The Court also confirms hereby that the Executive Order does not apply to Lawful Permanent Residents as explained in the guidance issued by the White House Counsel on February 1, 2017.” Doc. #15-1 Pg ID 121. That language would serve no function, however. It does not purport to be binding on the Defendants—and, indeed, the whole point of Defendants’ motion is to absolve them of any binding obligation to protect lawful permanent residents from the operation of the
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Executive Order. See Doc. #15, Pg ID 118 (arguing that the injunction should be dissolved because “[t]he public suffers when the Government is subject to injunctions that resolve no dispute and confer no rights but may still be invoked against the Government”). If Defendants are right that there is no live controversy, then a statement from this Court “confirm[ing]” the interpretation in the White House Counsel’s memorandum is a mere advisory opinion with no force or effect. And if Defendants are wrong, and there is a live controversy, then there is no basis for this Court to dissolve its injunction imposing a binding obligation on Defendants to protect lawful permanent residents from the operation of the Executive Order. Because there is a live controversy, the injunction must remain in effect.
II. The February 2 Injunction Satisfied Rule 65. Defendants assert that Plaintiffs failed to establish the four factors necessary for the grant of an injunction. Doc. #15 Pg ID 117. Defendants’ argument on this score rests entirely on the assertion that there is no live controversy between the parties relating to the application of the Executive Order to lawful permanent residents. See id. at Pg ID 117-118. As Plaintiffs have shown, that controversy remains very much alive. Moreover, Plaintiffs’ original motion (Doc. #5) fully establishes each of the injunction factors. Because this Court issued its injunction at a truly emergent moment, the written order was necessarily more summary than
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one that might have been issued in a calmer time. Now, with a greater luxury of time and in an abundance of caution, it may be appropriate for the Court to issue a supplemental order that more fully explains its reasoning in accordance with Fed. R. Civ. P. 65. But there is no basis for vacating the injunction.
CONCLUSION For the foregoing reasons, the Motion to Dissolve Injunction should be denied.

Respectfully submitted,
Attorneys for Arab American Civil Rights League, Samir Almasmari, Sabah Almasmary, Hana Almasmari, Mounira Atik, Walid Jammoul, Nagi Algahaim, Kokab Algazali, Shaika Shagera, Hend Alshawish and Yusra Al Soufi:
AYAD LAW, P.L.L.C.
/s/ Nabih H. Ayad Nabih H. Ayad (P59518) Attorney for Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

Dated: February 7, 2017

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HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC
/s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) Co-Counsel for ACRL 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com
/s/ Ali K. Hammoud Ali K. Hammoud (P73076) Counsel for Yemini American Benevolent Association (“YABA”) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 ah@hdalawgroup.com
FARHAT & ASSOCIATES, PLLC
/s/ Helal Farhat Helal Farhat (P64872) Counsel for the Arab American Chamber of Commerce 6053 Chase Rd. Dearborn, MI 48126 (313) 945-5100 hfarhat@saflegal.com
/s/ Nida Samona Nida Samona (P45356) Counsel for the Arab Chaldean Council (“ACC”) 363 W. Big Beaver Rd., Suite 300 Troy, MI 48084 Nidas@myacc.org
/s/ Rula Aoun Rula Aoun (P79119) Co-Counsel for ACRL 4917 Schaefer Rd. Dearborn, MI 48126 rula@acrlmich.org
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VIDA LAW GROUP, PLLC
/s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) Co-Counsel for Arab American Civil Rights League (“ACRL”) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com
Attorneys for Hasan Al-Ahmed and Sahla Al-Talaqani:
/s/ Miriam Aukerman (P63165) American Civil Liberties Union Fund of Michigan Attorney for Plaintiffs 1514 Wealthy SE, Suite 242 Grand Rapids, MI 49506 (616) 301-0930 maukerman@aclumich.org
/s/ Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan Attorneys for Plaintiffs 2966 Woodward Avenue Detroit, MI 48201 (734) 578-6814 msteinberg@aclumich.org
/s/ Samuel R. Bagenstos (P73971) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street
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Ann Arbor, Michigan 48109 (734) 647-7584 sbagen@gmail.com Application for admission to the U.S. District Court for the Eastern District of Michigan forthcoming /s/ Margo Schlanger (N.Y. Bar #2704443 (3d Dept)) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 734-615-2618 margo.schlanger@gmail.com Application for admission to the U.S. District Court for the Eastern District of Michigan forthcoming
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EXHIBIT 1
Susan Reed Declaration

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 2:17-cv-10310-VAR-SDD Doc # 7 Filed 02/02/17 Pg 1 of 3 Pg ID 65

UNITED STATES DISTRICT COURT EASTER DISTRICT OF MICHIGAN

ARAB AMERICAN CIVIL

:

RIGHTS LEAGUE (“ACRL”),

SAMIR ALMASMARI, SABAH : ALMASMARY, HANA

ALMASMARI, MOUNIRA ATIK, WALID JAMMOUL, ABUBAKER, :

ABBASS, on behalf of themselves

and others similarly situated,

:

No. 2:17-cv-10310-VAR-SDD
NOTICE OF RELEVANT AUTHORITY

Plaintiffs,

:

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, :

Defendants.

Defendants hereby give notice of legal authority relevant to this litigation: a memorandum issued on Wednesday, February 1, 2017 by Donald F. McGahn II, Counsel to the President. Attached is a copy of the memorandum, which clarifies, among other things, that Section 3(c) of the President’s January 27, 2017, Executive Order, Protecting the Nation From Foreign Terrorist Entry Into the

2:17-cv-10310-VAR-SDD Doc # 7 Filed 02/02/17 Pg 2 of 3 Pg ID 66

United States, which 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), does not apply to lawful permanent residents of the United States.

Date: February 2, 2017

Respectfully submitted.
CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation
s/ Gisela A. Westwater GISELA A. WESTWATER Assistant Director District Court Section Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 200044 (202) 532-4174 gisela.westwater@usdoj.gov
Counsel for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on February 2, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Eastern District of Michigan by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system
.

Dated: February 2, 2017

s/ Gisela A. Westwater GISELA A. WESTWATER Senior Litigation Counsel District Court Section Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 200044 (202) 532-4174 gisela.westwater@usdoj.gov
Counsel for Defendants

3

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 2:17-cv-10310-VAR-SDD Doc # 20 Filed 02/07/17 Pg 1 of 22 Pg ID 133

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE (“ACRL”), SAMIR ALMASMARI, SABAH ALMASMARY, HANA ALMASMARI, MOUNIRA ATIK, WALID JAMMOUL, NAGI ALGAHAIM, KOKAB ALGAZALI, SHAIKA SHAGERA, HEND ALSHAWISH, YUSRA AL SOUFI, HASAN AL-AHMED, SALHA AL-TALAQA,

on behalf of themselves and others similarly situated,

Plaintiffs,

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,

Case No.: 17−cv−10310 Hon.: Victoria A. Roberts Mag.: Stephanie D. Davis

Defendants. __________________________________________________________________/

PLAINTIFFS’ OPPOSITION TO MOTION TO DISSOLVE INJUNCTION

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On February 2, 2017, this Court issued an order enjoining Defendants “from
applying Sections 3(c) and 3(e) of the January 27, 2017 Executive Order against
lawful permanent residents of the United States.” Doc #8, Pg ID 70. Defendants
now move to dissolve that injunction.1 Defendants assert that “the Executive
Order does not apply to LPRs,” so “there is no actual dispute between the parties.”
Doc #15, Pg ID 111. Defendants’ motion must be rejected.
It is hornbook law that a defendant’s voluntary cessation of challenged
conduct does not eliminate a case or controversy. See Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). This is a classic case
of voluntary cessation.
1 As a threshold matter, Defendants’ motion is not properly before the Court because Defendants failed to comply with E.D. Mich. L.R. 7.1(a), which requires that movants must seek concurrence in the relief requested before filing a motion. To meet this requirement, Local Rule 7.1(a)(2) explains that there must be “a conference between the attorneys ... in which the movant explained the nature of the motion and its legal basis and requested but did not obtain concurrence in the relief sought.” L.R. 7.1(a)(2)(A). If a conference was not possible, then the counsel for the movant must certify that “despite reasonable effort specified in the motion or request, the movant was unable to conduct a conference.” LR 7.1(a)(2)(B) (emphasis added). Defendants here did not seek concurrence prior to filing their motion, nor did they explain their failure to do so. A “failure to seek concurrence warrants denial of the Motion.” Ethridge v. Countrywide Home L, Inc., No. 1210705, 2012 WL 12884664, at *1 (E.D. Mich. June 21, 2012), report and recommendation adopted No. 12-10705, 2012 WL 12884668 (E.D. Mich. July 25, 2012). See also Intl Union v. TRW Auto US, LLC, No. 11-cv-14630, 2016 WL 5661568, at *1 (E.D. Mich. September 30, 2016).
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On its face, the Executive Order applies equally to all “aliens from countries referred to in section 217(a)(12) of the INA,” without drawing any distinction between lawful permanent residents and other aliens. Executive Order § 3(c). In its initial implementation of the order, the Government interpreted it as applying to lawful permanent residents. It was only after this lawsuit was filed that Defendants sought to “clarify” that the order did not apply to lawful permanent residents. But that purported clarification did not change the language of the Executive Order, and Defendants could return to their initial interpretation of that order at any moment. Defendants’ actions thus are a paradigm case in which a post-litigation concession does not eliminate a case or controversy.
Nor are Defendants correct that the Plaintiffs failed to establish the relevant preliminary injunction factors. Defendants’ substantive argument on this point rests entirely on their erroneous assertion that there is no live controversy between the parties. Although this Court might appropriately issue a more extensive opinion explaining the basis for the February 2 injunction now that the most emergent aspects of the situation have passed, there is no ground to vacate that injunction.
BACKGROUND On January 27, 2017, the President issued the Executive Order that Plaintiffs challenge here. Section 3(c) of that order “proclaim[s] that the immigrant and
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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 accordingly “suspend[s] entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order.” Section 3(g) of that order provides for case-by-case waivers of the exclusion mandated by Section 3(c): “Notwithstanding a suspension pursuant to subsection (c) 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.”
On its face, Section 3(c) suspends the entry of “aliens” from the listed countries. The provision makes no distinction between lawful permanent residents of the United States and any other aliens. And, indeed, when the Government initially implemented the Executive Order, it interpreted that section as applying fully to lawful permanent residents. On January 28, a spokesperson for the Department of Homeland Security told Reuters that the order “will bar green card holders.”2 Over the weekend of January 28 to 29, according to news reports,
2 Green Card Holders Will Need Additional Screening: White House, REUTERS, Jan. 29, 2017, http://www.reuters.com/article/us-usa-trump-immigrationgreencard-idUSKBN15C0KX (quoting Gillian Christensen, acting Department of Homeland Security spokeswoman).
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government officials were applying the order to detain or bar the entry of lawful
permanent residents from the listed countries.3 As at least one lawsuit alleged, the
Government was going so far as to coerce lawful permanent residents from the
listed countries to sign paperwork renouncing their LPR status.4 On the morning
3 See Michael D. Shear et al., Judge Blocks Trump Order on Refugees Amid Chaos and Outcry Worldwide, N.Y. TIMES, Jan. 28, 2017, https://www.nytimes.com/2017/01/28/us/refugees-detained-at-us-airportsprompting-legal-challenges-to-trumps-immigration-order.html?_r=0 (“Human rights groups reported that legal permanent residents of the United States who hold green cards were being stopped in foreign airports as they sought to return from funerals, vacations or study abroad.”); Chas Danner, Judge Temporarily Blocks Part of Trump’s Ban on Refugees and Citizens From 7 Muslim-Majority Nations, NEW YORK, Jan. 28, 2017, http://nymag.com/daily/intelligencer/2017/01/trumpbans-citizens-from-7-muslim-nations-and-all-refugees.html (“By late Saturday afternoon, however, it was clear that Trump’s order would be interpreted by U.S. authorities in the broadest possible terms, with all foreign nationals from the seven countries, including current U.S. visa holders like green-card-carrying lawful permanent residents being unable to enter or board transportation for the U.S.”); Dara Lind, Trump’s Immigration Ban Initially Applied To Up To 500,000 Green Card Holders, VOX, Jan. 30, 2017, http://www.vox.com/2017/1/28/14425150/green-card-ban-muslim-trump (“Over the weekend, many permanent residents (green-card holders) were denied entry into the US at the border, or refused to board planes, because they’re nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, or Yemen — countries that are covered by the 90-day ban Trump signed into effect on Friday night.”); Josh Gerstein & Matthew Nussbaum, White House Tweaks Trump's Travel Ban To Exempt Green Card Holders, POLITICO, Feb. 1, 2017, http://www.politico.com/story/2017/02/white-house-green-card-holders-no-longercovered-by-trump-executive-order-234505 (“More than 100 green-card holders were detained as they arrived at U.S. airports in the first day or so that Trump’s order was in place.”). 4 See Aziz v. Trump, 1:17-cv-116 (E.D. Va., filed Jan. 28, 2017).
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of January 29, the White House Chief of Staff said, on a national news program, that “of course” the exclusion applied to lawful permanent residents.5
On the evening of January 29, the Secretary of Homeland Security endorsed
the reading of the Executive Order as covering lawful permanent residents when he
issued a “statement” that indicated that lawful permanent residents would typically
receive “case-by-case” waivers under Section 3(g) of the Executive Order:
In applying the provisions of the president's executive order, I hereby deem the entry of lawful permanent residents to be in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.
Statement by Secretary John Kelly on the Entry of Lawful Permanent Residents
into the United States, Jan. 29, 2017, go.usa.gov/x9AhN. The Secretary did not
state that Section 3(c) of the Executive Order did not reach lawful permanent
residents. Rather, by relying on the case-by-case waiver authority, the Secretary’s
statement suggested that lawful permanent residents are covered by Section 3(c)
and thus can receive relief from the entry bar only by receiving a waiver under
5 Krishnadev Calamur, What Trump’s Executive Order on Immigration Does—and Doesn’t Do, ATLANTIC, Jan. 30, 2017, https://www.theatlantic.com/news/archive/2017/01/trump-immigration-ordermuslims/514844/ (“But when pressed by Chuck Todd, the show’s host, on whether the order affected green-card holders, [Priebus] replied: ‘Well, of course it does. If you’re traveling back and forth, you’re going to be subjected to further screening.’”).
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Section 3(g).6 Nothing in the Secretary’s statement in any way committed the Government to waive Section 3(c)’s bar in any particular lawful permanent resident’s case. Rather, the statement indicated that individuals for whom there is “significant derogatory information” would not be eligible for the case-by-case waiver. The statement did not explain what “significant derogatory information” is, and that term is not defined in immigration law.
Moreover, because the Secretary’s statement was a pure ex cathedra pronouncement, without any indication that it was required by the text of the Executive Order or any statute, even the minimal solace it offered to lawful permanent residents could be taken back at any time. Indeed, according to recent news reports, the President’s chief strategist did not want the Secretary to take even the minimal steps he took to protect lawful permanent residents—and took the extraordinary step of confronting the Secretary and directing him not to issue the waiver order.7 It is impossible for the Plaintiffs, or this Court, to predict how
6 See also Department of Homeland Security, “Fact Sheet: Protecting The Nation from Foreign Terrorist Entry To the United States” (January 29, 2017) (“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)), available at: https://www.dhs.gov/news/2017/01/29/protecting-nation-foreign-terrorist-entryunited-states. 7 See Josh Rogin, Inside The White House-Cabinet Battle Over Trump’s Immigration Order, WASH. POST, Feb. 4, 2017,
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differences of opinion within the White House about the scope of the Executive Order will be resolved, and whether the government will once again reverse course.
Plaintiffs, who include four lawful permanent residents who are citizens of the listed countries, filed this action on January 31. The next day, on February 1, the White House Counsel issued a two-paragraph memorandum purporting to “clarify” that Sections 3(c) and 3(e) of the Executive Order “do not apply” to lawful permanent residents. 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 (Feb. 1, 2017). The memorandum noted, with some understatement, that “there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States.” Id. It accordingly sought “to remove any confusion.” Id. But the White House Counsel’s memorandum did not purport to modify, amend, or revoke any the text of the Executive Order—something only the President, and not the White House Counsel, has the power to do—nor did it point to even a single word of Sections 3(c) and 3(e) that suggested that those provisions did not apply to lawful permanent residents. Rather, it offered only “interpretive guidance.” Id. Like the
https://www.washingtonpost.com/news/josh-rogin/wp/2017/02/04/the-whitehouse-cabinet-battle-over-trumps-immigration-ban/?utm_term=.14c553e790d8.
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Secretary’s statement from three days earlier, the White House Counsel’s supposed clarification could be taken back at any time.
Because of the repeated shifts in the Government’s interpretation and enforcement of the Executive Order, the LPR plaintiffs are deterred from traveling outside of the United States for business or family visits. Absent an injunction mandating that the Executive Order not be applied to bar lawful permanent residents, the LPR Plaintiff who is currently outside the United States fears that he will not be able to enter the United States, and he and the other Plaintiffs (who are now in the U.S.), fear that if they leave the country again, they will not be permitted to return.
The declaration of Susan Reed, managing attorney for the Michigan Immigrant Rights Center, shows that this government’s ever-shifting position has left not just lawful permanent residents, but also attorneys specializing in immigration law uncertain about whether lawful permanent residents will be barred from entry if they leave the country. See Reed Declaration, Exh. 1. Ms. Reed explains that:
Based on the unprecedented nature of and lack of clarity in the Executive order, the continually evolving nature of the subsequent executive agency actions, the unresolved litigation, and the many qualifications in Department of Homeland Security statements, it is my opinion as an immigration practitioner that I cannot issue a general statement that any Lawful Permanent Residents, but particularly not those from the seven affected countries, may safely
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travel and expect to be readmitted to the United States. I cannot encourage anyone to expect to enter the U.S. on the same basis that they did before the issuance of the January 27, 2017 executive order and I cannot clearly communicate in practical terms what the new standards for entry are based on the information I have. …
Because of the extreme brevity of the government’s statements on Lawful Permanent Residents, the initial confusion about the meaning of “immigrant visa” in the implementation of the Executive Order, the ongoing developments in litigation nationwide as the Department of Justice seeks to defend the Executive Order, and the uncertainty about the meaning of “significant derogatory information” or the standards for determining whether Lawful Permanent Residents are eligible for “exceptions” to the ban, I have continued to advise Lawful Permanent Residents from countries affected by the ban against travel.
Id. at ¶¶ 17, 20.
Accordingly, the Michigan Immigrant Rights Center website currently
warns:
At first, the government said that the ban fully included people with Lawful Permanent Resident or “Green Card” status as well as any other visas. On Sunday, January 29, 2017, the government said that Lawful Permanent Residents would be allowed to return to the United States unless there is “significant derogatory information” about them. Immigration lawyers do not know what will be considered “significant derogatory information.” So, we are discouraging all citizens of those countries from traveling outside of the United States for any reason. This includes travel to Canada.
See www.michiganimmigrant.org.
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ARGUMENT I. In Light of the Government’s Repeated Shifts in Interpretation of
the Executive Order, There is a Live Controversy in This Case. “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.’ ‘[I]f it did, the courts would be compelled to leave “[t]he defendant . . . free to return to his old ways.” ’ ”Friends of the Earth, 528 U.S. at 189 (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n.10 (1982); United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)). Accordingly, to prevail on their motion to vacate the injunction, Defendants must meet a “stringent” standard of showing that “‘subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Id. (quoting United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968)) (emphasis added). Defendants bear the “‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up again.” Id. (quoting Concentrated Phosphate, 393 U.S. at 203) (emphasis added). Defendants cannot come close to meeting that demanding standard. Although Defendants now assert flatly that “[t]he Executive Order does not apply to LPRs,” Doc #15, Pg ID 116, the Executive Order does not on its face distinguish between LPRs and others from the listed countries. The order bars all “entry into
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the United States” by aliens from the listed countries. Executive Order § 3(c). The Government’s current interpretation of that language conflicts with the interpretations government officials—up to and including the Secretary of Homeland Security—placed on the Executive Order during the days preceding the White House Counsel’s February 1 memorandum.
Although the Government now takes the position, in accordance with that memorandum, that the Executive Order does not reach lawful permanent residents, the White House Counsel could withdraw that memorandum at any time. Given the many changes in the Government’s position up to this point, there is certainly at least a reasonable prospect that Defendants will change their position again. Such a change is especially likely because: (1) news reports indicate that there is disagreement among senior White House staff about whether the Executive Order should apply to LPRs; (2) the White House Counsel’s two-paragraph memorandum contains absolutely no legal analysis or effort to tie its interpretation to the text of the Executive Order; (3) the White House Counsel has no power to alter the terms of an Executive Order; and (4) it is the Department of Justice’s Office of Legal Counsel, and not the White House Counsel, whose job it is “to provide controlling advice to Executive Branch officials on questions of law.” U.S. Dep’t of Justice, Office of Legal Counsel, Best Practices for OLC Legal Advice and Written Opinions (July 16, 2010),
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https://www.justice.gov/sites/default/files/olc/legacy/2010/08/26/olc-legal-adviceopinions.pdf. In light of these facts, Defendants simply cannot show that it is “absolutely clear” that there is no reasonable prospect that they will revert to their former interpretation, Friends of the Earth, 528 U.S. at 189.
This case is strikingly similar to A. Philip Randolph Institute v. Husted, 838 F.3d 699 (6th Cir. 2016), in which the Sixth Circuit rejected a claim that voluntary cessation deprived the court of a case or controversy. The plaintiffs in A. Philip Randolph sued to challenge certain procedures the State of Ohio used to keep its voter rolls current. In particular, the plaintiffs alleged that the “confirmation notice form” the state sent to voters before removing them from the rolls did not comply with the requirements of the National Voter Registration Act, 52 U.S.C. § 20501 et seq., and the Help America Vote Act, 52 U.S.C. § 20901 et seq. During the litigation, the defendant Secretary of State implemented a new confirmation notice form that allegedly complied with federal law; he argued that the new form deprived the court of a case or controversy. A. Philip Randolph Inst., 838 F.3d at 712-713.
The Sixth Circuit rejected that argument. The court reasoned that “the new confirmation notice form was issued pursuant to the Secretary’s ‘directive,’ rather than any legislative process. Thus, this is not a case in which reversing the
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cessation would be particularly burdensome.” Id. at 713.8 The court also “note[d] that the circumstances of the Secretary’s issuance of the new form”—in the midst of pending litigation challenging the old form—“d[id] not inspire confidence in his assurances regarding the likelihood of recurrence.” Id. So too here, it would not be at all difficult for Defendants to, once again, change their position regarding the application of the Executive Order to lawful permanent residents. And the Government’s repeated changes in position to this point hardly “inspire confidence.” Id.
This case is also similar to the Sixth Circuit’s decision in Akers v. McGinnis, 352 F.3d 1030 (6th Cir. 2003). In Akers, the plaintiffs challenged a written rule of the Michigan Department of Corrections (MDOC); during the course of the litigation, the rule was substantially revised. The Sixth Circuit rejected MDOC’s mootness argument: “In the present case, as the promulgation of work rules appears to be solely within the discretion of the MDOC, there is no guarantee that MDOC will not change back to its older, stricter Rule as soon as this action
8 As the A. Philip Randolph court noted, even adopting new legislation might not have been enough to meet the defendant’s burden, for “the Supreme Court has declined to defer to a governmental actor’s voluntary cessation, even where that cessation occurred pursuant to legislative process.” Id. (citing City of Mesquite, 455 U.S. at 289 (“[T]he city’s repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court’s judgment were vacated.”)).
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terminates.” Id. at 1035. Here, as in Akers, the Defendants are free to change their interpretation of the Executive Order at any time.
Defendant’s argument is further weakened by the fact that the government made repeated unilateral changes to its interpretation of the Executive Order, reversing course repeatedly and under political pressure. See Wall v. Wade, 714 F.3d 492, 497 (4th Cir. 2013) (holding that a state prison’s Ramadan policy change did not moot the claims, especially since “the fact that at least three separate policies have been utilized [] since 2009 indicates some degree of doubt that the new policy will remain in place for long”); Longstreth v. Maynard, 961 F.2d 895, 900 (10th Cir. 1992) (finding free exercise challenge was not moot due to change in hair grooming policy since policy had been repeatedly changed in the past); Charles v. Daley, 749 F.2d 452, 458 (7th Cir. 1984) (rejecting mootness argument because state had repeatedly made changes to the policy in question, thereby persuading the court that additional changes reverting back to the challenged policy “would not be unlikely”). As in Wall, Longstreth, and Charles, based on the history of changes in interpretation of the Executive Order – changes which here have occurred in rapid succession – there is every reason to believe that another policy reversal would take place.
Defendants rely on the unpublished case of Libertarian Party of Ohio v. Husted, 497 F. App’x 581 (6th Cir. 2012), but that case is inapposite. There,
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plaintiffs alleged that a state ballot access law violated the First Amendment. While the litigation was ongoing, the state repealed the statute; as a result, there remained “nothing to enjoin or declare unconstitutional.” Id. at 583. Here, by contrast, the Executive Order that Plaintiffs challenge remains on the books. That order, on its face, still excludes “aliens” from the listed countries, without distinguishing between lawful permanent residents and others. All that has changed is that, after initially interpreting the Executive Order in one way, the Government now takes the directly opposite position and asserts that the Order does not reach lawful permanent residents. Absent an injunction, there is nothing to stop the Government from reversing its position again.
As Ms. Reed of the Michigan Immigrant Rights Center explains, if the government once again changes course, the potential harm to lawful permanent residents is great:
Lawful Permanent Residents in my experience tend to have overwhelming equities in the U.S. and generally have extremely low tolerance of risk with regard to being excluded or removed from the U.S.. Given the consequences that Lawful Permanent Residents face if they are excluded or removed from the U.S., I have had to carefully consider our organization’s public information and ensure that our organization does not suggest courses of action that could result in exclusion or removal. Reed Declaration, ¶18. Ms. Reed gives the example of a lawful permanent resident from one of the listed countries who is a physician, has lived in the United States for twenty years, is the son a U.S. citizen mother, and works in a medically
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underserved area. He happened to be visiting friends in Canada when the Executive Order went into effect, and Ms. Reed assisted him in crossing the Canadian border on January 29, 2017, including preparing documents that would help him advocate for his readmission based on a “case-by-case” exception to the Executive Order for lawful permanent residents. Id.
The individual LPR Plaintiffs all have family outside of the United States, whom they would like to visit, and therefore the uncertainty about the meaning of the Executive Order is causing them real harm. But they are deterred from leaving the country by the prospect that the Government will change its position once again and bar them from returning. Many members of the organizational Plaintiff ACRL are in the same position. An injunction is necessary to prevent that harm.
The proposed order that Defendants attach to their motion would not protect the individual Plaintiffs and the Plaintiff organization ACRL’s members from that harm. The proposed order includes a sentence that states the following: “The Court also confirms hereby that the Executive Order does not apply to Lawful Permanent Residents as explained in the guidance issued by the White House Counsel on February 1, 2017.” Doc. #15-1 Pg ID 121. That language would serve no function, however. It does not purport to be binding on the Defendants—and, indeed, the whole point of Defendants’ motion is to absolve them of any binding obligation to protect lawful permanent residents from the operation of the
17

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Executive Order. See Doc. #15, Pg ID 118 (arguing that the injunction should be dissolved because “[t]he public suffers when the Government is subject to injunctions that resolve no dispute and confer no rights but may still be invoked against the Government”). If Defendants are right that there is no live controversy, then a statement from this Court “confirm[ing]” the interpretation in the White House Counsel’s memorandum is a mere advisory opinion with no force or effect. And if Defendants are wrong, and there is a live controversy, then there is no basis for this Court to dissolve its injunction imposing a binding obligation on Defendants to protect lawful permanent residents from the operation of the Executive Order. Because there is a live controversy, the injunction must remain in effect.
II. The February 2 Injunction Satisfied Rule 65. Defendants assert that Plaintiffs failed to establish the four factors necessary for the grant of an injunction. Doc. #15 Pg ID 117. Defendants’ argument on this score rests entirely on the assertion that there is no live controversy between the parties relating to the application of the Executive Order to lawful permanent residents. See id. at Pg ID 117-118. As Plaintiffs have shown, that controversy remains very much alive. Moreover, Plaintiffs’ original motion (Doc. #5) fully establishes each of the injunction factors. Because this Court issued its injunction at a truly emergent moment, the written order was necessarily more summary than
18

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one that might have been issued in a calmer time. Now, with a greater luxury of time and in an abundance of caution, it may be appropriate for the Court to issue a supplemental order that more fully explains its reasoning in accordance with Fed. R. Civ. P. 65. But there is no basis for vacating the injunction.
CONCLUSION For the foregoing reasons, the Motion to Dissolve Injunction should be denied.

Respectfully submitted,
Attorneys for Arab American Civil Rights League, Samir Almasmari, Sabah Almasmary, Hana Almasmari, Mounira Atik, Walid Jammoul, Nagi Algahaim, Kokab Algazali, Shaika Shagera, Hend Alshawish and Yusra Al Soufi:
AYAD LAW, P.L.L.C.
/s/ Nabih H. Ayad Nabih H. Ayad (P59518) Attorney for Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

Dated: February 7, 2017

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HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC
/s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) Co-Counsel for ACRL 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com
/s/ Ali K. Hammoud Ali K. Hammoud (P73076) Counsel for Yemini American Benevolent Association (“YABA”) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 ah@hdalawgroup.com
FARHAT & ASSOCIATES, PLLC
/s/ Helal Farhat Helal Farhat (P64872) Counsel for the Arab American Chamber of Commerce 6053 Chase Rd. Dearborn, MI 48126 (313) 945-5100 hfarhat@saflegal.com
/s/ Nida Samona Nida Samona (P45356) Counsel for the Arab Chaldean Council (“ACC”) 363 W. Big Beaver Rd., Suite 300 Troy, MI 48084 Nidas@myacc.org
/s/ Rula Aoun Rula Aoun (P79119) Co-Counsel for ACRL 4917 Schaefer Rd. Dearborn, MI 48126 rula@acrlmich.org
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VIDA LAW GROUP, PLLC
/s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) Co-Counsel for Arab American Civil Rights League (“ACRL”) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com
Attorneys for Hasan Al-Ahmed and Sahla Al-Talaqani:
/s/ Miriam Aukerman (P63165) American Civil Liberties Union Fund of Michigan Attorney for Plaintiffs 1514 Wealthy SE, Suite 242 Grand Rapids, MI 49506 (616) 301-0930 maukerman@aclumich.org
/s/ Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan Attorneys for Plaintiffs 2966 Woodward Avenue Detroit, MI 48201 (734) 578-6814 msteinberg@aclumich.org
/s/ Samuel R. Bagenstos (P73971) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street
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Ann Arbor, Michigan 48109 (734) 647-7584 sbagen@gmail.com Application for admission to the U.S. District Court for the Eastern District of Michigan forthcoming /s/ Margo Schlanger (N.Y. Bar #2704443 (3d Dept)) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 734-615-2618 margo.schlanger@gmail.com Application for admission to the U.S. District Court for the Eastern District of Michigan forthcoming
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EXHIBIT 1
Susan Reed Declaration

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs, v.

Civil No. 17-10310 Hon. VICTORIA A. ROBERTS Mag. Judge Stephanie D. Davis

DONALD TRUMP, et al.,

Defendants. ___________________________________/

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ REQUESTFOR A PRELIMINARY INJUNCTION

Defendants, by and through their undersigned counsel, oppose

Plaintiffs’ Request for a Preliminary Injunction. The grounds for this motion

are set forth more fully in the attached supporting brief.

CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director
GISELA A. WESTWATER Assistant Director
EREZ REUVENI Senior Litigation Counsel
JOSHUA S. PRESS Trial Attorney
Dated: February 8, 2017

Respectfully submitted,
/s/ Briana Yuh BRIANA YUH Ohio State Bar 0096087 Trial Attorney District Court Section Office of Immigration Litigation U.S. Department of Justice – Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 532-4165 Facsimile: (202) 305-7000 E-mail: Briana.Yuh@usdoj.gov
Counsel for Defendants

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs, v. DONALD TRUMP, et al.,

Civil No. 17-10310 Hon. VICTORIA A. ROBERTS Mag. Judge Stephanie D. Davis

Defendants. ___________________________________/

BRIEF IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ REQUEST FOR A PRELIMINARY INJUNCTION

STATEMENT OF ISSUES PRESENTED
WHETHER PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION FROM A TEMPORARY SUSPENSION OF ENTRY WHEN SIGNIFICANT NATIONAL SECURITY INTERESTS ARE AT STAKE.
MOST CONTROLLING AUTHORITY
Kleindienst v. Mandel, 408 U.S. 753 (1972) Knauff v. Shaughnessy, 338 U.S. 537 (1950) Landon v. Plasencia, 459 U.S. 21 (1982) Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)

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TABLE OF CONTENTS
BACKGROUND ................................................................................................................2
I. The President’s Order .................................................................3 II. Timeline of Significant Events and Procedural History .............6 III. Legal Background on Foreign Affairs Power .............................3 LEGAL STANDARDS ............................................................................... 10 ARGUMENT ................................................................................................. 11 I. Plaintiffs Cannot Sustain The Requirements For a Preliminary
Injunction ................................................................................. 11 A. There is no Likelihood of Success On The Merits .................... 11
i. Procedural Due Process Claims ..................................... 12 ii. Establishment Clause Under the First Amendment ....... 15 iii. Equal Protection Under the Fifth Amendment............... 16 iv. Substantive Due Process Violation of Right to
Familial Association ...................................................... 19 v. Administrative Procedure Act ........................................ 21 vi. Religious Freedom Restoration Act ............................... 24 B. The Plaintiffs Have Not Shown Any Irreparable Harm ............. 26 C. The Balance of Harms and Public Interest Require Denial of Relief. ................................................................................... 27 CONCLUSION............................................................................................. 28
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TABLE OF AUTHORITIES CASES
Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .................................................................................. 12
Adams v. Vance, 570 F.2d 950 (D.C. Cir. 1978) ................................................................ 3, 9
Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007)..................................................................... 9
Alliance for Children, Inc. v. City of Detroit Public Schools, 475 F. Supp. 2d 655 (E.D. Mich. 2007) .................................................... 13
Almario v. Att’y Gen., 872 F.2d 147 (6th Cir. 1989)............................................................... 14, 17
Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................. 22
Ashki v. INS, 233 F.3d 913 (6th Cir. 2000)............................................................... 10, 15
Azizi v. Thornburgh, 908 F.2d 1130 (2d Cir. 1990) .................................................................... 11
Bangura v. Hansen, 434 F.3d 487 (6th Cir. 2006)................................................... 10, 14, 16, 17
Borey v. Nat'l Union Fire Ins., 934 F.2d 30 (2d Cir. 1991) ........................................................................ 23
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) .............................................................................. 22
Cachu v. INS, 568 F.2d 625 (9th Cir. 1977)..................................................................... 17
iv

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California ex rel. Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005 (9th Cir. 2000) ................................................................. 21 Caribbean Marine Servs. Co. v. Baldrige,
844 F.2d 668 (9th Cir. 1988)..................................................................... 24 Castro v. United States Dep’t of Homeland Sec.,
835 F.3d 422 (3d Cir. 2016) ................................................................ 11, 12 Cervantes v. INS,
510 F.2d 89 (10th Cir. 1975)..................................................................... 17 De Avilia v. Civiletti,
643 F.2d 471 (7th Cir. 1981)..................................................................... 11 Dep’t of Navy v. Egan,
484 U.S. 518 (1988) .................................................................................... 8 Dep’t of State,
523 F.2d 554 (2d Cir. 1975) ...................................................................... 17 Detroit Int’l Bridge Co. v. Gov’t of Canada,
189 F. Supp. 3d 85 (D.D.C. 2016) ............................................................ 18 Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568 (1988).................................................................. 21 Fiallo v. Bell,
430 U.S. 787 (1977) ................................................................................. 14 Franklin v. Massachusetts,
505 U.S. 788 (1992) .................................................................................. 18 Garcia v. Boldin,
691 F.2d 1172 (5th Cir. 1982)................................................................... 17 Garcia v. Google, Inc.,
786 F.3d 733 (9th Cir. 2015)....................................................................... 9
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Genesis HealthCare Corp. v. Symczyk, 133 S. Ct. 1523 (2013) .............................................................................. 24
Guzman v. U.S. Dep’t of Homeland Sec., 679 F.3d 425 (6th Cir. 2012)..................................................................... 14
Haitian Refugee Ctr., Inc. v. Baker, 789 F. Supp. 1552 (S.D. Fla. 1991)........................................................... 18
Hamama v. INS, 78 F.3d 233 (6th Cir. 1996) ....................................................................... 14
Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136 (1987) .................................................................................. 13
INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) .................................................................................... 8
Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984)............................................................... 6, 15
Kerry v. Din., 135 S. Ct. 2128 (2015) .............................................................................. 16
Khan v. Holder, 608 F.3d 325 (7th Cir. 2010)..................................................................... 20
Kleindienst v. Mandel, 408 U.S. 753 (1972) .................................................................................... 6
Kucana v. Holder, 558 U.S. 233 (2010) .................................................................................. 11
Landon v. Plasencia, 459 U.S. 21 (1982) ...................................................................................... 2
Lehr v. Robertson, 463 U.S. 248 (1983) .................................................................................. 16
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Lucero v. Detroit Pub. Sch., 160 F. Supp. 2d 767 (E.D. Mich. 2001) .................................................... 24
Mathews v. Davis, 426 U.S. 67 (1976) .................................................................................... 14
Mendez v. Major, 340 F.2d 128 (8th Cir. 1965)..................................................................... 17
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953). ........................................................................... 10, 11
Mostofi v. Napolitano, 841 F. Supp. 2d 208 (D.D.C. 2012) .......................................................... 17
Munaf v. Geren, 553 U.S. 674 (2008) .................................................................................... 8
Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979) .................................................................. 15
New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) ................................................................................ 25
Newton v. INS, 736 F.2d 336 (6th Cir. 1984) .................................................................... 14
Nken v. Holder, 556 U.S. 418 (2009) .................................................................................. 25
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) .................................................................................... 20
Oforji v. Ashcroft, 354 F.3d 609 (7th Cir. 2003)..................................................................... 17
Palestine Information Office v. Shultz, 674 F. Supp. 910 (D.D.C. 1987) ................................................................. 9
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Pittman v. Cuyahoga County Department of Children & Family Services, 640 F.3d 716 (6th Cir. 2011)..................................................................... 16
RadLAX Gateway Hotel v. Amalgamated Bank, 132 S. Ct. 2065 (2012) .............................................................................. 21
Regan v. Vinick & Young, 862 F.2d 896 (1st Cir.1988) ...................................................................... 24
Reuters Ltd. v. United Press Int'l., Inc., 903 F.2d 904 (2d Cir.1990) ....................................................................... 23
Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003)..................................................................... 10
Roudnahal v. Ridge, 310 F. Supp. 2d 884 (N.D. Ohio 2003) ..................................................... 14
Ruiz-Herrera v. Holder, 2013 WL 1136849 (N.D. Ga. Mar. 15, 2013)........................................... 17
Saavedra Bruno v. Albright, 197 F.3d 1153 (1999) ................................................................................ 19
Sad v. INS, 246 F.3d 811 (6th Cir. 2001)..................................................................... 14
Sampson v. Murray, 415 U.S. 61 (1974) .................................................................................... 23
Silverman v. Rogers, 437 F.2d 102 (1st Cir. 1970) ..................................................................... 17
Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197 (6th Cir. 2011)..................................................................... 13
Southdown, Inc. v. Moore McCormack Res., Inc., 686 F. Supp. 595 (S.D. Tex. 1988) ........................................................... 25
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Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998) ............................ 9
Swartz v. Rogers, 254 F.2d 338 (D.C. Cir. 1958) .................................................................. 17
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) ............................................................................ 3, 6, 8
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) .................................................................................. 10
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982) .................................................................................... 13 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418 (2006) .................................................................................. 22 Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977) ...................................................................... 15 Waeschle v. Dragovic,
576 F.3d 539 (6th Cir. 2009)..................................................................... 11 Wayte v. United States,
470 U.S. 598 (1985) .................................................................................. 25 Webster v. Doe,
486 U.S. 592 (1988) .................................................................................. 18 Weinberger v. Romero-Barcelo,
456 U.S. 305 (1982) .................................................................................. 25 Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) .................................................................................... 2, 8 Wisconsin Gas Co. v. FERC,
244 U.S. App. D.C. 349, 758 F.2d 669 (D.C. Cir.1985)........................... 23
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Women's Med. Prof’l Corp. v. Baird, 438 F.3d 595 (6th Cir. 2006)..................................................................... 11
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) .................................................................................... 7
STATUTES 5 U.S.C. § 701(a)(1) ............................................................................................ 19 5 U.S.C. § 701(a)(2) ............................................................................................ 18 5 U.S.C. § 706(1) ................................................................................................. 20 8 U.S.C. § 1101(a)(20) .......................................................................................... 5 8 U.S.C. § 1104(a) ............................................................................................... 19 8 U.S.C. § 1152(a)(1)(A) ..................................................................................... 20 8 U.S.C. § 1152(a)(1)(B) ..................................................................................... 20 8 U.S.C. § 1158.................................................................................................... 21 8 U.S.C. § 1182(a)(27) .......................................................................................... 6 8 U.S.C. § 1182(f).................................................................................................. 2 8 U.S.C. § 1185(a)(1) ............................................................................................ 7 8 U.S.C. § 1187...................................................................................................... 4 8 U.S.C. § 1187(a)(12) .................................................................................... 4, 15 8 U.S.C. § 1201(h) ............................................................................................... 19 8 U.S.C. § 1201(i)................................................................................................ 19 8 U.S.C. § 1225(b)(1) .......................................................................................... 21 8 U.S.C. § 1231(b)(3) .......................................................................................... 21 42 U.S.C. §§ 2000bb–1(a) ................................................................................... 22
REGULATIONS 8 C.F.R. §§ 235.3(b)(4) ....................................................................................... 21
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OTHER REFERENCES Pub. L. No. 114-113 .............................................................................................. 4
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TABLE OF EXHIBITS Exhibit A – Executive Order: Protecting the Nation from Foreign Terrorist Entry
into the United States (Jan. 27, 2017) (Order)………………………………2
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs, v. DONALD TRUMP, et al.,

Civil No. 17-10310 Hon. VICTORIA A. ROBERTS Mag. Judge Stephanie D. Davis

Defendants. ___________________________________/

BRIEF IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ REQUEST FOR A PRELIMINARY INJUNCTION
INTRODUCTION The President is authorized by statute to “suspend the entry of ... any class of aliens” whenever the President determines their entry “would be detrimental to the interests of the United States[.]” 8 U.S.C. § 1182(f). Invoking that statutory authority and his constitutional authority to control the entry of aliens into this country, on January 27, 2017, the President issued Executive Order 13,769 (the “Executive Order”), titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” See Exhibit A. The Executive Order’s purpose is “to protect the American people from terrorist attacks by foreign nationals admitted to the United States” by taking steps

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“to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.” Id. The President directed a temporary 90-day suspension of entry for aliens from seven countries previously identified by Congress or the Executive Branch as posing a heightened risk of terrorism; a temporary 120-day suspension of the U.S. Refugee Admissions Program; and a suspension of entry of Syrian nationals as refugees until the President determines that measures are in place “to ensure that admission of Syrian refugees is consistent with the national interest.” Exec. Order §§ 3(c), (5)(a), (c). As another district court recently concluded, the Executive Order is a lawful exercise of the political branches’ plenary control over the admission of aliens into the United States. Louhghalam v. Trump, No. 17-10154-NMG, 2017 WL 479779 (D. Mass. Feb. 3, 2017).
Despite the President’s constitutional and congressionally-delegated authority to make determinations regarding national security and the entry of aliens to this country, Plaintiffs request entry of a preliminary injunction prohibiting enforcement of the Executive Order. They claim that the Executive Order violates due process because it is allegedly motivated by animus toward Muslims. Plaintiffs, however, cannot carry the heavy burden that must be met to justify such an “extraordinary remedy,” particularly where the remedy would interfere with Congress’ determination vesting the President, not a court or civilians, with making the relevant
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judgments over national security and foreign affairs. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 22, 25-26 (2008). Plaintiffs, however, cannot carry the heavy burden that must be met to justify such an “extraordinary remedy,” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 22, 25-26 (2008), particularly where, as here, no constitutional violation exists because the President explicitly relied upon previously existing statutory and regulatory designations. See 8 U.S.C. § 1187(a)(12)(D)(ii).
Plaintiffs’ attempts to rewrite federal immigration law conflict 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). Plaintiffs also seek to contravene the considered judgment of Congress that the President should have the unreviewable authority to suspend the entry of any class of aliens. Finally, Plaintiffs seek an injunction that is vastly overbroad—it is untethered to Plaintiffs’ particular claims; extends to aliens abroad, who are outside the territory of the United States; applies in part nationwide, effectively overriding the judgment of another district court that sustained the Executive Order against parallel challenges; and “deeply intrudes into
3

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the core concerns of the executive branch.” Adams v. Vance, 570 F.2d 950, 954-55 (D.C. Cir. 1978).
BACKGROUND I. The President’s Order
On January 27, 2017, the President issued an Executive Order “to protect the American people from terrorist attacks by foreign nationals admitted to the United States.” Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States § 2, 82 Fed. Reg. 8977 (Jan. 27, 2017). The Executive Order directs a number of actions in the interests of national security. Id. §§ 2-11. The Secretary of Homeland Security is directed to conduct an immediate review to identify the “information needed from any country ... to determine that [an] individual seeking [an immigration-related] benefit is who the individual claims to be and is not a security or public-safety threat.” Id. § 3(a). The Executive Order also directs a process for requesting necessary information from foreign governments that do not supply such information, and consequences for countries not providing it. See id. § 3(d)-(f).
While that review is ongoing, the Executive Order suspends entry for 90 days of aliens from seven countries previously identified as being associated with a heightened risk of terrorism pursuant to 8 U.S.C. § 1187(a)(12). Executive Order § 3(c). Section 1187(a)(12), enacted in 2015, modifies the Visa Waiver Program. Pub.
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L. No. 114-113, 129 Stat. 2242, 2990 (2015). That program allows nationals of certain countries to travel to and apply for admission to the United States without a visa. See 8 U.S.C. § 1187. Section 1187(a)(12) bars from the visa waiver program individuals who are dual nationals of or have recently travelled to certain countries. Congress itself identified Iraq and Syria, and also included countries that have been designated by the Secretary of State as state sponsors of terrorism: Iran and Sudan. Id. § 1187(a)(12)(A)(i)(I)-(II), (ii)(I)-(II).
In addition, Congress authorized the Executive Branch to designate additional “countries or areas of concern” based on “whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States,” “whether a foreign terrorist organization has a significant presence in the country or area,” and “whether the country or area is a safe haven for terrorists.” Id. § 1187(a)(12)(D)(ii). In February 2016, the Department of Homeland Security exercised that authority to bar from the Visa Waiver Program nationals of (and individuals who had recently travelled to) Libya, Somalia, and Yemen, in an effort to ensure that the Visa Waiver Program’s “requirements are commensurate with the growing threat from foreign terrorist fighters.”1
1 DHS Announces Further Travel Restrictions for the Visa Waiver Program, Feb. 18, 2016, https://www.dhs.gov/news/2016/02/18/dhs-announces-furthertravel-restrictions-visa-waiver-program. Exemptions from the Executive Order’s
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II. Timeline Of Significant Events And Procedural History On January 31, 2017, the American Arab Civil Rights League filed a Complaint for Declaratory and Injunctive Relief (“Complaint”) on behalf of lawful permanent residents of the United States (“LPRs”), an immigrant visa-holder who had yet to be admitted to the United States, and the relative of an applicant for a visa. ECF No. 1. Plaintiffs, all nationals of Yemen or Syria, argued that the Executive Order violated the First Amendment, Fifth Amendment, Administrative Procedure Act, and Religious Freedom Restoration Act. Id. Also on January 31, 2017, Plaintiffs filed an ex parte temporary restraining order. (ECF No. 5). Following a teleconference held on February 2, 2017, the Court denied Plaintiffs’ temporary restraining order regarding the Executive Order as it applies to immigrant visa holders and visa applications but permanently enjoined Defendants from applying §§ 3(c) and 3(e) of the Executive Order to LPRs, something Defendants represented that they were not doing as evidenced by the White House memorandum submitted by Defendants to the Court following the hearing. (ECF No. 8).2 Id. Plaintiffs filed an Amended Complaint on February 5, 2017. ECF No. 13 (hereinafter, “Am. Compl.”). In addition to the previously-named LPRs,
suspension of the entry of aliens from the seven countries identified under § 1187(a)(12) can be made on a case-by-case basis. Executive Order § 3(g).
2 As noted in the Government’s motion to vacate the injunction (ECF No. 15), Defendants disagree with the Court’s issuance of a permanent injunction.
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immigrant visa holder, and parent of an applicant for an immigrant visa, the Amended Complaint joined an Iraqi national and two U.S. citizens who are married to and filed immigrant petitions on behalf of nationals of the affected seven countries. Am. Compl. ¶¶ 27–31, 52–65. Plaintiffs additionally joined seven individuals who are immigrant visa holders. Am. Compl. ¶¶ 19-65. Defendants now file this opposition to Plaintiffs’ request for a preliminary injunction. III. Legal Background on Foreign Affairs Power
The power to control the admission of aliens is an inherent attribute of national sovereignty. See, e.g., Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950). The Supreme Court has long recognized that the political branches of the federal government have plenary authority to establish and implement substantive and procedural rules governing the admission of aliens to this country. Id.; see also Kleindienst v. Mandel, 408 U.S. 753, 765–66 & n.6 (1972). The political branches of the federal government therefore possess concurrent authority over immigration matters. Jean v. Nelson, 727 F.2d 957, 964 (11th Cir. 1984) (en banc) (collecting cases), aff’d on non-constitutional grounds, 472 U.S. 846 (1985).
Congress has delegated wide discretion to the President over aliens whom he believes are a threat to national security—above and beyond the President’s inherent authority over foreign affairs. See, e.g., 8 U.S.C. § 1182(f) (allowing executive officials to exclude aliens whom they believe will “enter the United States ... to
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engage in activities [that] would ... endanger the welfare, safety, or security of the United States” and, “[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States ... to suspend the entry of ... any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate,” respectively); cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (noting how, when “the President acts pursuant to an express or implied 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” (emphasis added)).
Viewing this case in terms of Justice Jackson’s tripartite framework from Youngstown, Congress has supplemented the President’s inherent Article II authority by delegating broad authority on two key issues. The best evidence for this delegation lies in both history and the statutory text—allowing the President to “suspend the entry of all aliens or any class of aliens ... or ... impose on the entry of aliens any restrictions he may deem to be appropriate” for as long as he considers necessary upon a finding 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.” Id. § 1182(f). And Congress has similarly authorized the Secretary of State to, in his discretion, revoke visas. See id. § 1201(i). Here, the Executive Order stems from the
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President’s constitutional authority, along with that delegated to him under the INA pursuant to 8 U.S.C. § 1182(f), with respect to the suspension of entry of certain classes of aliens. The Executive Order is intended “to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism,” Executive Order § 1, and “to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.” Id. § 2.
LEGAL STANDARDS 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 v. NRDC, 555 U.S. 7, 20 (2008). Moreover, given the “remarkably broad delegations of its authority” Congress has provided the Executive Branch, as well as the implicit authority under Article II for the President to conduct affairs involving matters of national sovereignty, Jean, 727 F.2d at 965, courts have consistently “recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context.” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999); Knauff, 338 U.S. at 543 (“[I]t is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.”);
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see also Dep’t of Navy v. Egan, 484 U.S. 518, 529-30 (1988); cf. Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1203 (9th Cir. 2007) (“[W]e acknowledge the need to defer to the Executive on matters of foreign policy and national security and surely cannot legitimately find ourselves second guessing the Executive in this arena.”). Thus, 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” as to each element. Adams, 570 F.2d at 954-55 (emphasis added); see Palestine Information Office v. Shultz, 674 F. Supp. 910, 917 (D.D.C. 1987) (“[B]y seeking injunctive relief against the Executive’s foreign policy action, plaintiffs ask this Court to approach the outer limit of its constitutional authority.”).
ARGUMENT I. Plaintiffs Cannot Sustain The Requirements For a Preliminary
Injunction A. There is no Likelihood Of Success On The Merits
While all four factors set forth in Winter must be considered in assessing a motion for preliminary injunctive relief, the moving party’s likelihood of success on the merits is the most important. Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009) (“[T]he “likelihood of success” prong is the most important to our analysis[.]”). Because it is a threshold inquiry, when a “plaintiff has failed to show the likelihood of success on the merits, we ‘need not consider the remaining three [Winter
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elements].’” Id. Moreover, any inquiry into the merits must first consider threshold issues such as Article III standing and subject matter jurisdiction, which if not satisfied by the movant, require finding in the government’s favor on this factor. If the plaintiff lacks standing under Article III, then the court lacks subject matter jurisdiction, and the case must be dismissed. See e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101–02 (1998).
i. Procedural Due Process Claims The procedural due process claims of the non-citizen plaintiffs must fail at the threshold for the simple reason that aliens outside our borders have no constitutional right to entry or to a visa.3 See Landon, 459 U.S. at 32 (“[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.”). Even at ports of entry, non-resident aliens have not entered the country and have no due process rights with respect to their request for admission beyond what Congress has affirmatively provided. See id.; Mezei, 345 U.S. at 213; accord. United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (noting how “aliens receive constitutional protections [once] they have come within the territory of the United States and developed substantial connections with this country”
3 As clarified by the February 1, 2017 Memorandum, the Executive Order does not apply to LPRs. See White House Mem., ECF No. 7-1.
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(emphasis added)); Ashki v. INS, 233 F.3d 913, 920 (6th Cir. 2000) (quoting In re Longstaff, 716 F.2d 1439, 1442 (5th Cir. 1983)) (noting that, “Congress can bar aliens from entering the United States for ‘discriminatory and arbitrary reasons.’”); Bangura v. Hansen, 434 F.3d 487, 495 (6th Cir. 2006).
Under the Immigration and Nationality Act (INA), Congress has given the President broad discretion to suspend the entry of classes of aliens whom he believes would be “detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). And under decisions such as Mezei and Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003), “excludable aliens do not have a constitutional right to enter or be admitted to the United States; indeed, no alien has a constitutional right to enter or be admitted to the United States.” Rosales-Garcia, 322 F.3d at 412; see Jean, 727 F.2d at 972. This is particularly true where Congress has delegated to the Executive Branch authority over decisions to admit or exclude aliens. See Castro v. United States Dep’t of Homeland Sec., 835 F.3d 422, 439-44 (3d Cir. 2016) (collecting cases).
In these circumstances, “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Mezei, 345 U.S at 212 (quoting Knauff, 338 U.S. at 544).4 Under Mezei and related cases, admitting an
4 See also Gerald L. Neuman, “Discretionary Deportation,” 20 Geo. Immigr. L.J. 611, 635 (2006) (“Since 1996, tens of thousands of aliens are denied entry every
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alien into the country or allowing an alien to stay are decisions that have long been deemed “matter[s] of grace.” Kucana v. Holder, 558 U.S. 233, 247 (2010) (internal quotation marks omitted). The Sixth Circuit has adhered to Mezei and its progeny, also finding “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Rosales-Garcia, 322 F.3d at 410 (quoting Mezei). Plaintiffs thus cannot demonstrate a likelihood of success on the merits of their procedural due process claim.
ii. Establishment Clause Under the First Amendment Plaintiffs also allege that the Order violates the Establishment Clause because it “exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity.” (Am. Compl. at ¶ 89). This claim is meritless for multiple reasons. First, unadmitted non-resident aliens (such as several of the individual plaintiffs) cannot assert 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. See also Laurence H. Tribe, American Constitutional Law § 5-18, at 973 (3d ed. 2000).
year in reliance on Knauff, without the opportunity to consult an attorney or present witnesses .... On the other hand, deportation from within the United States requires procedural due process, evaluated by the usual standards.”).
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Second, the only sections of the Executive Order addressing religion are §§ 5(b) and (e), discussing the admission of refugees who face persecution because of their membership in a minority religion. None of the Plaintiffs have standing to make such an argument, however, as none is a refugee seeking admission to the United States, and the Refugee Act does not establish any cause of action seeking to challenge the decisions of the Executive concerning the admission and placement of refugees. Aside from the ripeness problems of challenging § 5(b) (a program that will not resume in over three months, see Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)), Sections 5(b) and (e) will not directly affect any of the Plaintiffs here. Consequently, they are insufficiently injured to have Article III standing.5
Finally, §§ 5(b) and (e) provide accommodations for refugees from all countries in the refugee program, not just the seven countries specified in § 3(a). Their provisions do not favor any particular religious sect or affiliation, but are neutral with respect to all religions. Louhghalam, 2017 WL 479779, at *5 (“Nothing in Section 5 compels a finding that Christians are preferred to any other group.”).
5 See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485–86 (1982); Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197, 208–09 (6th Cir. 2011) (en banc) (teachers could not assert students’ rights under the Establishment Clause); Alliance for Children, Inc. v. City of Detroit Public Schools, 475 F. Supp. 2d 655, 662-63 (E.D. Mich. 2007) (corporation providing educational services could not assert rights of students); Louhghalam, 2017 WL 479779, at *5 (“Although plaintiffs vigorously disagree with such a policy, that sincere disagreement is insufficient injury to confer standing.”).
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Nor does it violate the Establishment Clause to recognize that religious minorities are more likely to face persecution than members of a country’s majority religion. Cf. Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144–45 (1987) (“This Court has long recognized that the government may ... accommodate religious practices ... without violating the Establishment Clause.”); 8 U.S.C. § 1187 Note 2. There is simply no truth to Plaintiffs’ claim that the Executive Order “exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity.” (Am. Compl. at ¶ 89).
iii. Equal Protection Under the Fifth Amendment Plaintiffs claim that the Executive Order violates the equal protection component of the Fifth Amendment’s Due Process Clause. (Compl. at ¶¶ 90–96). But again, Plaintiffs do not have rights under the Due Process Clause with respect to their request for entry into the United States. And in any event, where an equal protection claim is made to an immigration law, only rational basis review applies. See, e.g., Mathews v. Diaz, 426 U.S. 67, 83 (1976) (considering whether a law that made distinctions based on alien status was “wholly irrational”); Guzman v. U.S. Dep’t of Homeland Sec., 679 F.3d 425, 432 (6th Cir. 2012) (“[D]eference to Congress with respect to immigration law has led this court to uphold statutory distinctions between classes of aliens if predicated on a rational basis.” (internal quotation marks omitted)); Roudnahal v. Ridge, 310 F. Supp. 2d 884, 892 (N.D.
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Ohio 2003) (upholding a program requiring male nonimmigrant aliens from designated countries to be fingerprinted and registered because “the Executive is designed and entrusted to best shape our national security”).
Rational basis review “does not require [courts] to identify the ... actual rationale for the distinction,” only that “there are plausible reasons” for the law in question. Hamama v. INS, 78 F.3d 233, 237 (6th Cir. 1996). “[I]t is not necessary for Congress to have drawn the line at the (purportedly) most reasonable point ... but only that it had a rational purpose in drawing the line(s) as it did.” Newton v. INS, 736 F.2d 336, 342 (6th Cir. 1984). “The role of the courts in analyzing an equal protection challenge to a federal immigration statute is limited to determining whether the statute at issue is conceivably related to the achievement of the federal interest.” Almario v. Att’y Gen., 872 F.2d 147, 152 (6th Cir. 1989) (internal quotation marks omitted). Indeed, the Sixth Circuit’s standard may even be less than standard rational-basis review. See Sad v. INS, 246 F.3d 811, 822 (6th Cir. 2001) (“We review such classifications in immigration acts under a standard even more deferential than rational-basis review.” (emphasis added)).
The Executive Order easily satisfies this relevant standard. From a constitutional perspective, the political branches are permitted to discriminate based on nationality in the context of immigration and entry into the United States. See, e.g., Ashki, 233 F.3d at 920 (“discriminatory and arbitrary reasons” for
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distinguishing among classes of aliens survive rational basis review); Jean, 727 F.2d at 978 n.30 (“[T]here is little question that the Executive has the power to draw distinctions among aliens on the basis of nationality.”); Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 1979) (“[C]lassifications among aliens based upon nationality are consistent with due process and equal protection if supported by a rational basis.”).
Plaintiffs next allege that the Order stems from an “animus toward … Muslims.” (Compl. at ¶ 92.) But the plain language of the Executive Order includes there nothing discussing Islam or any other particular religion. Plaintiffs’ support for this assertion, therefore, must be that the seven countries identified pursuant to 8 U.S.C. § 1187(a)(12) have majority Muslim populations. However, Plaintiffs cannot establish animus here, because the Order contains a visa waiver designation. But even if there is a disparate impact (explaining their citations to state or municipal equal protection cases such as Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252 (1977)), that does not call the validity of the order into question under Fiallo’s standard of review. There are legitimate national security reasons to temporarily suspend entries of nationals of these countries, pending a review and strengthening of the vetting process for visa applicants. Moreover, these seven countries were already identified pursuant to 8 U.S.C. § 1187(a)(12). Specifically, certain countries were identified in connection
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with Congress’s actions in the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, and the Department of Homeland Security’s subsequent designations in February 2016. It is not for the courts to second-guess these national security decisions within the context of immigration where, as here, those decisions are supported by a “facially legitimate and bona fide reason.” Fiallo, 430 U.S. at 794; accord Louhghalam, 2017 WL 479779, at *7.
iv. Substantive Due Process Violation of Right to Familial Association
The U.S. citizen Plaintiffs’ claim that the Order violates their “right to familial association” under the Constitution is also unavailing. (Am. Compl. at ¶ 100). The law in the Sixth Circuit is clear: “A denial of an immediate relative visa does not infringe upon the right to marry.” Bangura v. Hansen, 434 F.3d 487, 496 (6th Cir. 2006). Perhaps even more directly on point, the Sixth Circuit earlier determined that “[t]he Constitution does not recognize the right of a citizen spouse to have his or her alien spouse remain in the country.” Almario v. Attorney General, 872 F.2d 147, 152 (6th Cir. 1989);6 see also Swartz v. Rogers, 254 F.2d 338, 339 (D.C. Cir. 1958)
6 Unlike Bangura and Almario, the authority Plaintiffs cite in support of their substantive due process claim is wholly inapposite. (Am. Compl. ¶ 100.) Those cases (Pittman v. Cuyahoga County Department of Children & Family Services, 640 F.3d 716 (6th Cir. 2011) and Lehr v. Robertson, 463 U.S. 248 (1983)) concern due process rights in the child-custody context, not the effects that immigration actions have on U.S. citizen spouses.
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(citizen has no constitutional rights violated by deportation of spouse); Garcia v. Boldin, 691 F.2d 1172, 1183 (5th Cir. 1982); Burrafato v. U.S. Dep’t of State, 523 F.2d 554, 555 (2d Cir. 1975); Silverman v. Rogers, 437 F.2d 102, 107 (1st Cir. 1970); Swartz v. Rogers, 254 F.2d 338, 339 (D.C. Cir. 1958). While there undoubtedly exists a constitutional right to marry, that right is simply not implicated by the Executive Order.
The Supreme Court’s recent decision in Kerry v. Din did nothing to change the calculus. 135 S. Ct. 2128 (2015). In that case, Justice Kennedy’s concurrence did not opine as to whether a U.S. citizen has a protected liberty interest in her marriage entitling her to limited judicial review. Din, 135 S.Ct. at 2139. Instead, Justice Kennedy concluded that “even assuming” Din had such an interest, “the notice she received regarding her husband’s visa denial satisfied due process.” Id. Regardless of this fine point, if the Court reaches the question of whether a citizen has a constitutional stake in an immigration action that affects her alien spouse, it should adopt the Din plurality’s conclusion that the Due Process Clause confers no such interest. 135 S. Ct. at 2138 (Scalia, J.) (“Because Fauzia Din was not deprived of life, liberty, or property when the Government denied [her alien spouse] admission to the United States, there is no process due to her under the Constitution.”) (internal quotation marks omitted). That holding is consistent not only with the Sixth Circuit’s decisions in Bangura and Almario, but also the longstanding principle that “the due
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process provision of the Fifth Amendment does not apply to the indirect adverse effects of governmental action.” O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 789 (1980).
Even assuming arguendo that the Order has implicated Plaintiffs’ substantive due process rights (which it has not), this Court’s review of the Executive Order would be strictly limited. When the Executive exercises its immigration authority “on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion.” Mandel, 408 U.S. at 770. Here, as the district court in Louhghalam recognized, the Executive Order 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.” Executive Order, §§ 3(c), 5(a), (c). The Executive Order does so in part by incorporating the seven countries that were identified by Congress and the Department of Homeland Security as raising terrorism-related concerns. Accordingly, even assuming this Court could undertake the type of review contemplated by Mandel and Din, Plaintiffs’ challenge would fail.
v. Administrative Procedure Act Plaintiffs failed to establish a substantial likelihood of success on the merits under the APA for several reasons. First, Plaintiffs cannot state a claim under the
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APA against the Executive Order because the President is not an “agency” for the
purposes of the APA. In Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992),
the United States Supreme Court concluded that the Presidency is not an “agency”
as defined in the APA, § 701(b)(1). Courts have interpreted Franklin to prohibit
review under the APA of actions by the President when he is exercising discretionary
authority. See, e.g., Detroit Int’l Bridge Co. v. Gov’t of Canada, 189 F. Supp. 3d 85,
104 (D.D.C. 2016). Here, Congress has granted the President authority to suspend
entry for any class of aliens if such entry would be “detrimental to the interests of
the United States.” 8 U.S.C. 1182(f). Pursuant to, and without exceeding, that grant
of discretionary authority, the President issued the Executive Order and suspended
entry of aliens from the seven subject countries. The President’s action is thus unreviewable under the APA. See Detroit Int’l Bridge, 189 F. Supp. 3d at 104-05.7
7 In addition, the APA precludes judicial review of any agency action that is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2); see Webster v. Doe, 486 U.S. 592, 594, 600-01 (1988) (holding that the Director of Central Intelligence had complete discretion over employee discharges, and thus judicial review was precluded). By its plain 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,” for the period “as he shall deem necessary,” and to impose such conditions of entry as “he may deem appropriate.” As a result, there is no discernable standard for judicial review of the President’s determinations. See Haitian Refugee Ctr., Inc. v. Baker, 789 F. Supp. 1552, 1575-76 (S.D. Fla. 1991). Thus, even if Plaintiffs could challenge a Presidential finding under the APA, it would necessarily fail under these circumstances.
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Second, Plaintiffs cannot assert a claim under the APA to the extent it is precluded by another statute. See 5 U.S.C. § 701(a)(1). Here, any challenge to the State Department’s provisional revocation of a visa is precluded by 8 U.S.C. § 1201(i), which states in relevant part:
[T]he consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation .... There shall be no means of judicial review (including review pursuant to section 2241 of Title 28 or any other habeas corpus provision, and sections 1361 and 1651 of such title) of a revocation under this subsection, except in the context of a removal proceeding if such revocation provides the sole ground for removal under section 1227(a)(1)(B) of this title. 8 U.S.C. § 1201(i) (emphasis added). Based on the plain language of 8 U.S.C. § 1201(i), Plaintiffs cannot establish a substantial likelihood of success on the merits with respect to any APA claim challenging the revocation of a visa. Third, as stated earlier in this brief, an alien has no right to admission into this country.8 Thus, Plaintiffs have no likelihood of success on the merits of a claim under the APA seeking to require the Government to admit them into this country. The INA confers upon consular officers with exclusive authority to review applications for visas. See 8 U.S.C. §§ 1104(a), 1201(a). It is well established that “[o]btaining a visa from an American consul has never guaranteed an alien’s entry into the United States. A visa merely gives the alien permission to arrive at a port of
8 Insofar as Plaintiffs are reasserting constitutional claims under the APA, their claims necessarily fail for the reasons stated earlier.
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entry and have an immigration officer independently examine the alien’s eligibility for admission.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1157 (D.C. Cir. 1999) (citing 8 U.S.C. § 1201(h)). Thus, any suggestion to the contrary by Plaintiffs is incorrect.
Fourth, it is far from clear that Plaintiffs are seeking to compel agency action under 5 U.S.C. § 706(1). And if they are, that would fail because they have failed to identify any discrete agency action that is legally required. See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 63-64 (2004). To the extent Plaintiffs claim that Congress’s delegation through § 1182(f) is limited by 8 U.S.C. § 1152(a)(1)(A), § 1152(a)(1)(A) does not actually address—and thus does not circumscribe—the President’s authority under § 1182(f). While it is true that § 1152(a)(1)(A) 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,” (emphasis added), § 1182(f) focuses on the entry of aliens, which is an entirely different step under the immigration laws. Indeed, an immigrant visa does not entitle an alien to admission to the United States, and even if an alien is issued a valid visa, he is subject to being denied admission to this country when he arrives at the border. See, e.g., Khan v. Holder, 608 F.3d 325, 330 (7th Cir. 2010). There is thus no inconsistency between § 1152(a)(1)(A) and the President’s issuance of the Executive Order under § 1182(f).
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But even if § 1152(a)(1)(A) and § 1182(f) were inconsistent, 8 U.S.C.
§ 1152(a)(1)(B) makes clear that the statute does not “limit the authority of the
Secretary of State to determine the procedures for the processing of immigrant visa
applications[.]” This establishes that the Executive Order is not covered by the
restrictions of subsection (A), because the Executive 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., Executive Order §§ 3(a), 5(a).
Furthermore, while that review is pending, the Secretaries of State and Homeland
Security have discretion to grant visas and other immigration benefits on a case-by-
case basis. And, crucially, § 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.9
9 Even if it applied, § 1152(a)(1)(A) would not restrict § 1182(f)’s broad grant of discretionary authority. Indeed, “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.” Morton v. Mancari, 417 U.S. 535, 551 (1974). See also United States v. Borden Co., 308 U.S. 188, 198 (1939) (“The intention of the legislature to repeal must be clear and manifest.”). Any assertion that § 1152(a)(1)(A) limits that authority would mean that the President would be statutorily disabled from barring the entry of nationals of a country with which the United States was at war—a result that would raise serious constitutional questions, which is itself a sufficient reason to reject the State’s reading. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988).
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Finally, any argument based on the INA and implementing regulations, 8 U.S.C. § 1225(b)(1), 8 C.F.R. §§ 235.3(b)(4), 208.30 and 1003.42; 8 U.S.C. § 1158, and 8 U.S.C. § 1231(b)(3), see Amended Complaint, para. 104, lacks any persuasive force, as no Plaintiffs claim to have been deprived of any rights or privileges they otherwise would be entitled to under the INA. In any event, under elementary principles of statutory construction, the specific governs the general, such that the President’s suspension of entry under § 1182(f) forecloses any argument that Plaintiffs must be permitted to travel to the United States on a visa and apply for admission under any of these authorities.
v. Religious Freedom Restoration Act The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §§ 2000bb–1(a), (b). As amended by the Religious Land Use and Institutionalized Persons Act of 2000, RFRA’s definition of “religious exercise” covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” § 2000cc–5(7)(A); see Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2754 (2014).
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To succeed in a RFRA claim, Plaintiffs must demonstrate that the Government substantially burdened their sincere exercise of their religion. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2774 n.28 (2014); Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006). Here, Plaintiffs have failed to allege any facts that, if taken as true, could support such a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678-681 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). The order simply does not distinguish among religions, and thus cannot pose a substantial burden on religious exercise. And even if it did distinguish between religious groups, that is an equal protection claim, not a RFRA claim.
B. The Plaintiffs Have Not Shown Any Irreparable Harm At this time, Plaintiffs have not shown any irreparable harm. Plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction. Winter, 555 U.S. at 24. Irreparable harm represents a loss that cannot possibly be remedied at the conclusion of the litigation: “The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974). “The party seeking the preliminary injunction bears the burden of justifying such relief, including showing
26

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irreparable harm and likelihood of success.” McNeilly v. Terri Lynn Land, 684 F.3d 611, 615 (6th Cir. 2012). “To demonstrate irreparable harm, the plaintiffs must show that ... they will suffer ‘actual and imminent’ harm rather than harm that is speculative or unsubstantiated.” Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006). Irreparable harm cannot be speculative; “the injury complained of [must be] of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.” Id.; see also Regan v. Vinick & Young, 862 F.2d 896, 902 (1st Cir.1988) (finding that “speculation or unsubstantiated fears about what may happen in the future cannot provide the basis for a preliminary injunction”); Lucero v. Detroit Pub. Sch., 160 F. Supp. 2d 767, 801 (E.D. Mich. 2001).
Here, Plaintiffs’ claims of injury relate to immigrant visa-holding individuals’ inability to enter the United States after having expended considerable sums on their travel and fees to the U.S. government. See generally Am. Compl. ¶¶ 12-65. These claims fail for two reasons. First, the Executive Order imposes only a suspension, not a permanent ban, on entry of individuals from the designated countries. No plaintiff has alleged an irreparable harm that will result if a particular visa holder is unable to travel to the United States during this period of suspension. Moreover, any claim that a visa applicant or his petitioning U.S. citizen or LPR parent will suffer irreparable harm as a result of the 90-day suspension period is far too attenuated to satisfy standing. An applicant for an immigration benefit has no entitlement to
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approval of such, and certainly the petitioner has no cognizable right to have an application adjudicated within 90 days. Nor can Plaintiffs base their request for injunctive relief on the claim that others who are not before this Court will suffer irreparable harm in the absence of preliminary injunctive relief. E.g., Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“At a minimum, a plaintiff seeking preliminary injunctive relief must demonstrate that it will be exposed to irreparable harm.” (emphasis added)).
C. The Balance of Harms and Public Interest Require Denial of Relief The final two factors required for preliminary injunctive relief—balancing of the harm to the opposing party and the public interest—merge when the government is the opposing party. See, e.g., Nken v. Holder, 556 U.S. 418, 435 (2009). Here, courts must “pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312–13 (1982). The Executive Order places no disability on the LPR Plaintiffs, who are not contemplated by the presidential action. See White House Mem., ECF No. 7-1; see also Louhghalam, 2017 WL 479779, at *3. While entry to the United States for immigrant visa-holding Plaintiffs is currently restricted, this restriction is only temporary. Thus, Plaintiffs cannot and do not make any concrete showing of how their alleged irreparable harm will outweigh the threatened harm that an injunction would cause, or that it would not “adversely
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affect [the] public interest[.]” Id.; Southdown, Inc. v. Moore McCormack Res., Inc., 686 F. Supp. 595, 596 (S.D. Tex. 1988) (petitioner’s burden to show injunction causes “no disservice to unrepresented third parties”). Indeed, the Plaintiffs fail to acknowledge any potential harm to them or the public. This failure is fatal to Plaintiffs’ request for the extraordinary remedy of a preliminary injunction. Any order that enjoins a governmental entity from lawfully enforcing our immigration laws and executive orders related to national security constitutes an irreparable injury that weighs heavily against the entry of injunctive relief. See, e.g., New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977). In this vein, the Supreme Court has specifically acknowledged that “[f]ew interests can be more compelling than a nation’s need to ensure its own security.” Wayte v. United States, 470 U.S. 598, 611 (1985). What was true then is still true today: the Court should not enter injunctive relief that overrides the President’s national security decision.10
CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court deny Plaintiffs’ request for a preliminary injunction.
10 Finally, at most, any injunction issued against the Order should be limited to those who are already in the United States or those who have been here and seek to return to the country.
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Dated: February 8, 2017

Respectfully submitted.
CHAD A. READLER Acting Assistant Attorney General
AUGUST FLENTJE Special Counsel
WILLIAM C. PEACHEY Director
GISELA A. WESTWATER Assistant Director
EREZ REUVENI Senior Litigation Counsel
JOSHUA S. PRESS Trial Attorney
/s/ Briana Yuh BRIANA YUH Ohio State Bar 0096087 Trial Attorney District Court Section Office of Immigration Litigation U.S. Department of Justice – Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 532-4165 Facsimile: (202) 305-7000 E-mail: Briana.Yuh@usdoj.gov
Counsel for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on this date, I caused a true and correct copy of
the foregoing Defendants’ Opposition to be served via CM/ECF upon the
following:
Helal A. Farhat Hfarhat@saflegal.com
Kassem M. Dakhlallah Kassemdakhlallah@aol.com
Natalie C. Qandah Natalie@vidalawpllc.com
Nabih H. Ayad Ayadlaw@hotmail.com
Michael J. Steinberg Msteinberg@aclumich.org
Miriam J. Aukerman maukerman@aclumich.org
Mona Fadlallah MONA@VIDALAWPLLC.COM

Counsel for Plaintiffs

Dated: February 8, 2017

Respectfully submitted,
/s/ Briana Yuh BRIANA YUH Trial Attorney District Court Section Office of Immigration Litigation
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U.S. Department of Justice – Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 532-4165 Facsimile: (202) 305-7000 E-mail: Briana.Yuh@usdoj.gov Counsel for Defendants
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EXHIBIT 1

2:17-cv-10310-VAR-SDD Doc # 24-1 Filed 02/08/17 Pg 2 of 10 Pg ID 222
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

2:17-cv-10310-VAR-SDD Doc # 24-1 Filed 02/08/17 Pg 6 of 10 Pg ID 226
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

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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.

2:17-cv-10310-VAR-SDD Doc # 24-1 Filed 02/08/17 Pg 10 of 10 Pg ID 230

THE WHITE HOUSE, January 27, 2017.

DONALD J. TRUMP # # #

 
 2:17-cv-10310-VAR-SDD Doc # 28 Filed 02/09/17 Pg 1 of 5 Pg ID 301

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE (“ACRL”), et al.

Plaintiffs, v. DONALD TRUMP, et al.

Case No.: 17−cv−10310 Hon.: Victoria A. Roberts Mag.: Stephanie D. Davis

Defendants. _________________________________________________________________/

PLAINTIFFS’ NOTICE OF WITHDRAWAL OF MOTION FOR TEMPORARY RESTRAINING ORDER (Doc #5)
On February 2, 2017, Plaintiffs filed a motion for a Temporary Restraining Order (Doc. 5) seeking emergency relief from the operation of Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States,” 82 Fed. Reg. 8977 (Jan. 27, 2017). In response, this Court issued an immediate order enjoining Defendants “from applying Sections 3(c) and 3(e) of the January 27, 2017 Executive Order against lawful permanent residents of the United States.” Doc #8, Pg ID 70 (the LPR Order).
The Court set a briefing schedule for the other issues raised by the motion. Defendants’ response was filed February 8, 2017; Plaintiffs’ reply is due by 5 p.m.

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on February 10, 2017. The remaining issues in the TRO motion concern immigrant visa holders.
Due to changed circumstances since Plaintiffs originally filed the TRO motion, Plaintiffs hereby withdraw the motion. Because of the entry of a broad, nationwide Temporary Restraining Order in State of Washington v. Trump, No. 2:17-cv-00141 (W.D. Wash. Feb. 3, 2017),1 several of the immigrant visa holder plaintiffs have already entered the United States and the rest plan to arrive either today or in the next several days. Accordingly, there is no need for further emergency relief. Once the immigrant visa holders are admitted to the United States, they do not currently anticipate needing additional immediate relief. Plaintiffs will return to this Court with a motion for a preliminary injunction, supported by suitable briefing and evidentiary record, if such a motion is appropriate in the future.
To be clear, there remains an ongoing need for the LPR Order, as explained in Plaintiffs’ Opposition to Motion to Dissolve Injunction (ECF #20), filed Feb. 7,
1 See https://www.clearinghouse.net/chDocs/public/IM-WA-0029-0005.pdf. The District Court denied a stay of that motion. See Transcript, Exhibit E to Emergency Motion Under Circuit Rule 27-3 for Administrative Stay and Motion for Stay Pending Appeal, State of Washington v. Trump, 17-35105 (9th Cir., Feb. 4, 2017), ID 10302845, Dkt Entry 14, p. 123 of 125. The 9th Circuit has denied an administrative stay, as well, see Order, State of Washington v. Trump, 17-35105 (9th Cir., Feb. 4, 2017), https://www.clearinghouse.net/chDocs/public/IM-WA0029-0016.pdf, but has not yet ruled on the Defendants’ stay application on its merits.
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2017. The legal permanent resident plaintiffs continue to plan and desire to travel outside the country for personal and/or business reasons—and absent the LPR Order cannot undertake such travel with assurance that they will be able to return to the United States. But no current pressing need or plan to travel justifies emergency relief for the other plaintiffs.

CONCLUSION For the foregoing reasons, the Plaintiffs withdraw the Feb. 2, 2017 motion for a Temporary Restraining Order.

Respectfully submitted,

Attorneys for Arab American Civil Rights League, Samir Almasmari, Sabah Almasmary, Hana Almasmari, Mounira Atik, Walid Jammoul, Nagi Algahaim, Kokab Algazali, Shaika Shagera, Hend Alshawish and Yusra Al Soufi:

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) Attorney for Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC /s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) Co-Counsel for ACRL 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com

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/s/ Ali K. Hammoud Ali K. Hammoud (P73076) Counsel for Yemini American Benevolent Association (“YABA”) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 ah@hdalawgroup.com
FARHAT & ASSOCIATES, PLLC /s/ Helal Farhat Helal Farhat (P64872) Counsel for the Arab American Chamber of Commerce 6053 Chase Rd. Dearborn, MI 48126 (313) 945-5100 hfarhat@saflegal.com
/s/ Nida Samona Nida Samona (P45356) Counsel for the Arab Chaldean Council (“ACC”) 363 W. Big Beaver Rd., Suite 300 Troy, MI 48084 Nidas@myacc.org

/s/ Rula Aoun Rula Aoun (P79119) Co-Counsel for ACRL 4917 Schaefer Rd. Dearborn, MI 48126 rula@acrlmich.org
VIDA LAW GROUP, PLLC /s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) Co-Counsel for Arab American Civil Rights League (“ACRL”) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com

Attorneys for Hasan Al-Ahmed and Sahla Al-Talaqani:

/s/ Miriam Aukerman (P63165) American Civil Liberties Union Fund of Michigan Attorney for Plaintiffs 1514 Wealthy SE, Suite 242 Grand Rapids, MI 49506 (616) 301-0930 maukerman@aclumich.org

/s/ Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan Attorneys for Plaintiffs 2966 Woodward Avenue Detroit, MI 48201 (734) 578-6814 msteinberg@aclumich.org

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/s/ Samuel R. Bagenstos (P73971) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 (734) 647-7584 sbagen@gmail.com Application for admission to the U.S. District Court for the Eastern District of Michigan forthcoming
Dated: February 9, 2017

/s/ Margo Schlanger (N.Y. Bar #2704443 (3d Dept)) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 734-615-2618 margo.schlanger@gmail.com Application for admission to the U.S. District Court for the Eastern District of Michigan pending

5

 
 2:17-cv-10310-VAR-SDD Doc # 22 Filed 02/08/17 Pg 1 of 9 Pg ID 167

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs, v.

Civil No. 17-10310 Hon. VICTORIA A. ROBERTS Mag. Judge Stephanie D. Davis

DONALD TRUMP, et al.,

Defendants. ____________________________________/

DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO DISSOVE INJUNCTION
AND AMEND ORDER REGARDING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER [Doc. 8]

Defendants (“the Government”) hereby respectfully request that this Court

vacate its earlier order (ECF No. 8) permanently enjoining the Government from

applying the Executive Order, titled “Protecting the Nation from Foreign Terrorist

Entry into the United States” (hereinafter, “the Executive Order”), to Lawful

Permanent Residents (“LPRs”). The Government’s proposed order would provide

LPR plaintiffs with confirmation of their exclusion from the Executive Order while

respecting the jurisdictional and relief standards in Article III and Federal Rule of

2:17-cv-10310-VAR-SDD Doc # 22 Filed 02/08/17 Pg 2 of 9 Pg ID 168
Civil Procedure 65, respectively.1 The injunction should be dissolved because there was no case or controversy, the injunction was overbroad, and did not comport with the standards for granting a permanent injunction. This Court should therefore grant Defendants’ motion.
ARGUMENT I. Plaintiffs fail to prove that there is a case or controversy.
First, contrary to Plaintiffs’ claims that there is a live controversy in this case, (ECF No. 20 at 11-18, 12), there is no actual dispute where Plaintiffs have failed to provide evidence that LPRs have been denied entry since release of the White House’s clarification memorandum on February 1, 2017. Moreover, contrary to Plaintiffs’ claims that LPRs are deterred from traveling outside of the United States because the Government may change its position, the White House memorandum is guidance as to the meaning of the Executive Order. At the time of this filing, seven days have passed since the White House memorandum was issued clarifying the application of the Executive Order, and
1 In “Plaintiffs’ Opposition to Motion to Dissolve Injunction,” Plaintiffs contend that Defendants’ motion is “not properly before the Court because Defendants failed to comply with E.D. Mich. L.R. 7.1(a).” (ECF No. 20 at 2). Defendants apologize to the Court for failing to confer prior to filing its motion. Nonetheless, the “Practice Guidelines for Judge Victoria A. Roberts,” make clear that the purpose of the rule is to “strongly discourage[] motions unless the curable defect has been brought to opposing counsel’s attention.” Where Plaintiffs have opposed Defendants’ motion. (ECF No. 20), it is clear that conferral would not have resolved this issue.
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Plaintiffs have failed to raise any credible evidence that the Government has failed to follow the memorandum’s guidance. This is nothing more than conjecture that the Government’s position may change in the future; the standards for issuance of a permanent injunction have not been met. At the time this Court issued its injunction, there was no longer a live case or controversy between the parties. Therefore, this Court lacked jurisdiction to issue the injunction.
Plaintiffs’ labeling of this case as an example of “voluntary cessation” is a mischaracterization. (ECF No. 20 at 2). Any lingering doubts were rectified by White House counsel, who issued definitive guidance on February 1, 2017, clarifying that Section 3(c) and 3(e) of the Executive Order, which temporarily suspended the entry of immigrants and non-immigrants from the countries of particular concern, does not apply to LPRs. Simply put, Plaintiffs’ claims regarding LPRs do not render an actual dispute. The Executive Order simply does not affect LPRs. Under Article III of the Constitution, if there is no actual dispute between the parties, Courts have no power to adjudicate disputes that are admittedly moot. See McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc) (quoting Crane v. Indiana High Sch. Athletic Ass’n, 975 F.2d 1315, 1318 (7th Cir. 1992)).
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Moreover, the canon of constitutional avoidance may be employed when a court may fairly construe a statute’s legal text to avoid constitutional questions. Gomez v. United States, 490 U.S. 858, 864 (1989) (“It is our settled policy to avoid … interpretation[s] … that engender[] constitutional issues if … reasonable alternative interpretation[s] pose[] no constitutional question.”). Here, a decision that would have constitutional implications can be entirely avoided: the Executive Order does not apply to LPRs. Plaintiffs claim that there is a live controversy because “LPR plaintiffs are deterred from traveling outside of the United States for business or family visits.” (ECF No. 20 at 9), but this interpretation of the Executive Order ignores established law holding that LPRs are entitled to travel abroad for periods of time without jeopardizing their lawful status. See 8 U.S.C. § 1101(a)(13)(C) (finding an “alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission” unless the alien falls within six specific categories); Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963) (“[A]n innocent, casual, and brief excursion by a resident alien outside this country’s borders may not have been ‘intended’ as 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.”); I.N.S. v. Phinpathya, 464 U.S. 183 (1984) (citing Fleuti at 460) (holding a lawful resident alien may not “be excluded ‘for a condition for which he could not have been deported had he remained in the
4

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country …’ because it would subject the alien to ‘unsuspected risks and unintended consequences of … wholly innocent action.’”).
Plaintiffs additionally try to buttress their claims with news reports (ECF No. 20 at 4-5, 7, 12), the opinion of an immigration attorney (ECF No. 20-1 “Susan Reed Declaration”), and Facebooks posts (ECF No. 20-1 at 3 ¶ 7), but these reflect only the confusion during the rollout of the Executive Order and do not establish that government officials have applied the Executive Order to LPRs since February 1st, at the latest. Simply put, Plaintiffs cite no relevant authority supporting their speculation that the Government will change its position regarding LPRs. This is fatal to any claims that all LPRs will be irreparably harmed without a permanent injunction.
Here, rather than providing a relevant sworn affidavit proving that LPRs have been denied entry since February 1, 2017, Plaintiffs support their live controversy claim with a declaration from Susan Reed, who makes generalized complaints about her confidence in the Government’s execution of the Executive Order, but notably, Ms. Reed fails to give a single example of the Government applying the Executive Order to an LPR since February 1, 2017. ECF No. 20-1 at 5 ¶ 17. Plaintiffs rely on this statement to establish standing, but none of Susan Reed’s recounted experiences took place on or after February 1, 2017. In fact, the one situation she describes, of her experience assisting an LPR client who
5

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“was admitted to the United States after secondary inspection which took approximately 90 minutes,” took place on January 29, 2017 – three days before the White House memorandum was released and four days before this Court’s order. ECF No. 20-1 at 4 ¶ 10. Plaintiffs rely heavily on Ms. Reed’s opinions, conclusory allegations, and personal assessment of the Executive Order, but these are not enough to prove that there is or was a live controversy—over all LPRs—in this case.
II. The injunction issued did not comport with Rule 65’s requirements. The injunction must be vacated because Plaintiffs have failed to establish
that this Court’s Order permanently enjoining the Government met the strict requirements of Federal Rule of Civil Procedure 65. Rule 65(d)(1)(A) requires a court to “state the reasons why [the injunction] issued.” Plaintiffs claim that this Court issued its injunction “at a truly emergent moment, the written order was necessarily more summary than one that might have been issued at a calmer time.” (ECF No. 20 at 18-19). Yet, the Order at issue is a permanent injunction —not a temporary restraining order or even a preliminary injunction—over all LPRs (without any class having been certified by the Court) such that Plaintiffs’ attempted excusal of the “summary” form of the order is completely misplaced. Dep’t of Def. v. Meinhold, 510 U.S. 939, 939 (1993) (staying nationwide injunction insofar as it “grants relief to persons other than” named plaintiffs).
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Plaintiffs have not shown or even alleged how the order complied with the

exacting standards for issuance of a permanent injunction or class-wide relief

under Civil Rule 23. Thus, the Court’s Order for a permanent injunction is

overbroad and facially invalid.

CONCLUSION

For these reasons, the Government respectfully asks this Court to vacate its

earlier order and instead issue the proposed amended order submitted herewith.

Dated: February 8, 2017

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General Civil Division

WILLIAM C. PEACHEY Director

GISELA A. WESTWATER Assistant Director

EREZ REUVENI Senior Litigation Counsel

s/ Briana Yuh BRIANA YUH Trial Attorney District Court Section Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 200044 Telephone: (202) 532-4165 Facsimile: (202) 305-7000 Briana.Yuh@usdoj.gov

Counsel for Defendants

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CERTIFICATION OF SERVICE
I hereby certify that on February 8, 2017, I electronically filed the foregoing
with the Clerk of the Court for the United States District Court for the Eastern
District of Michigan by using the CM/ECF system. I certify that all participants in
the case are registered CM/ECF users and that service will be accomplished by the
CM/ECF system. Notification of such filing will send to the following:
Helal A. Farhat Hfarhat@saflegal.com
Kassem M. Dakhlallah Kassemdakhlallah@aol.com
Natalie C. Qandah Natalie@vidalawpllc.com
Nabih H. Ayad Ayadlaw@hotmail.com
Michael J. Steinberg Msteinberg@aclumich.org
Miriam J. Aukerman maukerman@aclumich.org
Mona Fadlallah MONA@VIDALAWPLLC.COM
s/ Briana Yuh BRIANA YUH Trial Attorney District Court Section Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 200044
8

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Telephone: (202) 532-4165 Facsimile: (202) 305-7000 Briana.Yuh@usdoj.gov Counsel for Defendants
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 2:17-cv-10310-VAR-SDD Doc # 37 Filed 02/22/17 Pg 2 of 6 Pg ID 420

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.

Plaintiffs,

v. DONALD TRUMP, et al.

Case No.: 17−cv−10310 Hon.: Victoria A. Roberts Mag.: Stephanie D. Davis

Defendants. _________________________________/

DECLARATION OF AHMED SHALABI, MD

I, Ahmed Shalabi, MD, being duly sworn, depose and state as follows:

1. I have personal knowledge of all of the information set forth in this

declaration and I am willing to testify to same under oath in court if

called upon to do so.

2. I am a lawful permanent resident of the United States, and have applied

to become a United States citizen. I have lived continuously in the United

States for the last 22 years.

3. I am currently a citizen of Sudan. Sudan is one of the countries affected

by the president’s Executive Order, issued on January 27, 2017.

4. I am a Muslim.

5. I am a member of the Arab-American Civil Rights League.

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6. I initially arrived to the U.S. in March 1995 on a student visa. Around 1998, I successfully applied for and received Temporary Protected Status (TPS) due to an ongoing armed conflict in Sudan.
7. Around May 2007, I became a lawful permanent resident. 8. I am a surgeon based in Owosso, MI, which is a medically underserved
area. Because the area where I work does not have enough surgeons, if I am not able to continue in my position or if am stuck outside the country unable to return, there may be people who need surgery who do not get it in a timely fashion. 9. I specialize in Colon and Rectal Surgery. I received my Medical degree from the University of Debrecen. I have had surgery residencies at Johns Hopkins University, University of Maryland, at St. Raphael Hospital/Yale-New Haven Hospital, and St. Vincent Health Center. The honors I have received include being named resident of the year in 2002 at John Hopkins University. 10. I was in Canada on January 27, 2017, when I learned of President Trump’s Executive Order banning individuals from seven countries. I had driven to Toronto, Canada for the weekend to visit with friends. 11. Because I hold a Sudanese passport, I was fearful that I would not be readmitted into the United States.
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12. When the Executive Order was issued, government officials were saying that it applied to lawful permanent residents.
13. I contacted my secretary to advise her that I might need to cancel the surgeries I had scheduled for the following week.
14. I also reached out for legal assistance and was able to connect with Susan Reed, managing attorney at the Michigan Immigrant Rights Center.
15. Over the weekend after the Executive Order was issued, Ms. Reed helped me to figure out whether and how I could reenter the United States. The news reports kept changing, and it was very unclear whether lawful permanent residents would be admitted, or whether they would be admitted only on a case-by-case basis.
16. Ms. Reed helped me to compile documents related to my time in the United States, my U.S. citizen mother, and my medical career. Ms. Reed informed me that we would likely have to argue for my admission and that these documents would be necessary to convince the Customs and Border Protection officers to allow me to return to my home and practice.
17. On Sunday, January 29, 2017, I presented myself at the border crossing at the Windsor Tunnel with Ms. Reed present as my attorney. I was sent to secondary inspection where I was separated from Ms. Reed by officers, who refused to allow her to represent me in my interview. I
3

2:17-cv-10310-VAR-SDD Doc # 37 Filed 02/22/17 Pg 5 of 6 Pg ID 423
spent a total of about an hour and a half with agents in secondary inspection before they finally allowed me to enter the country. 18. Since re-entering the country, I have not travelled abroad. Prior to the Executive Order I had planned a vacation to Egypt in February, 2017, and a vacation to the United Arab Emirates in March, 2017. In order to ensure surgical coverage at my hospital, I have to request time off in advance for these two trips. Unfortunately, I was forced to cancel these plans (without being able to reschedule my time off) because it was unclear whether the Executive Order would again be applied to lawful permanent residents. 19. My inability to travel abroad is severely limiting. I live near the U.S.Canada border. I frequently travel to Canada to meet with friends and also go occasionally for professional meetings and conferences. I travel to Canada about once a month, and sometimes travel multiple times a month. 20. If the injunction barring application of the Executive Order to lawful permanent residents remains in effect, I will be able to travel to Canada knowing that I will be allowed back in the country. However, if the injunction is dissolved, I will be very reluctant to travel abroad based on
4

 
 2:17-cv-10310-VAR-SDD Doc # 39 Filed 03/06/17 Pg 1 of 8 Pg ID 430

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs, v.

Civil No. 17-10310 Hon. VICTORIA A. ROBERTS Mag. Judge Stephanie D. Davis

DONALD TRUMP, et al.,

Defendants. ____________________________________/

DEFENDANTS’ NOTICE OF FILING OF EXECUTIVE ORDER

Undersigned counsel write to update this Court of significant developments

since the Court entered its permanent injunction enjoining the Government from

applying sections 3(c) and (e) of Executive Order 13,769 (the “Old EO”) against

lawful permanent residents. Earlier today, the President signed an Executive Order

titled “Protecting the Nation from Foreign Terrorist Entry into the United States”

(“New EO,” attached as Exhibit 1).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

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 Washington v. Trump, Case No. 17-35105 (9th Cir. Feb. 16, 2017). 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.

2:17-cv-10310-VAR-SDD Doc # 39 Filed 03/06/17 Pg 2 of 8 Pg ID 431
Old EO, 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.
Although the Old EO did not apply to lawful permanent residents, the New EO
explicitly exempts lawful permanent residents from its application. A similar
exclusion of lawful permanent residents from the Old EO was clarified by the White
House Counsel on February 1, 2017, and is the basis for the Government’s pending
motion to vacate this Court’s Order entered February 2, 2017. See ECF No. 8 at 2
(permanently enjoining the Government “from applying Sections 3(c) and 3(e) of
the January 27, 2017 Executive Order against lawful permanent residents”).
Relevant to the issues before the Court, the New EO (i) suspends entry for 90
days of certain foreign nationals from six of the seven countries2 designated in
2 The suspension of entry no longer applies to nationals of Iraq because, since Executive Order 13,769 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 suspension of entry provisions no longer apply to Iraqi foreign nationals. See id. §§ 1(f), (g). Of course, even though the temporary suspension no longer applies to Iraqi foreign nationals, the New EO states that Iraq is still host to an ongoing conflict that has impacted the Iraqi government’s ability to secure its borders and identify fraudulent travel documents. See id. § 1(g). Accordingly, the New EO notes that “[d]ecisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if the applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.” Id. Section 4 of the New EO provides further guidance on this issue.
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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) creates a 120-day suspension 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 additional explanations in support of the newly issued policy.
In light of the New EO, undersigned counsel for the Defendants respectfully inform the Court as follows:
1. First, it is the Government’s understanding that the New EO excludes from its coverage all individuals who were subject to this Court’s permanent injunction order, i.e., “the Court orders that the United States is PERMANENTLY ENJOINED from applying Sections 3(c) and 3(e) of the January 27, 2017 Executive Order against lawful permanent residents of the United States. This injunction applies to Plaintiffs Samir Almasmari, Sabah Almasmary, Hana Almasmari, and Mounira Atik, as well as all other lawful permanent residents of the United States who are similarly situated.” ECF 8 at 2.
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
3

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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 individuals:
• 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). Again, these provisions explicitly exclude from the New EO all lawful permanent residents, the same group addressed in this Court’s February 2, 2017
4

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Order.3 Furthermore, it is respectfully submitted that because the New EO expressly
provides that it shall not be the basis for the revocation of any visa, and does not apply to people in the United States, the New EO falls outside of the Washington v. Trump nationwide injunction. See, e.g., Fusari v. Steinberg, 419 U.S. 379, 387–90 (1975); Diffenderfer v. Cent. Baptist Church of Miami, Inc., 404 U.S. 412, 414–15 (1972) (per curiam) (noting how injunctive relief was “inappropriate [after] the [challenged] statute ha[d] been repealed”). Accordingly, undersigned counsel respectfully submit that nothing in either the Western District of Washington’s nationwide injunction or this Court’s previous orders preclude enforcement of the New EO as of its effective date, March 16, 2017.
2. Second, to the extent Plaintiffs wish to challenge the New EO, the Government is prepared to confer regarding an appropriate schedule for amendment of the complaint and/or any other appropriate proceedings.
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
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(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).
5

2:17-cv-10310-VAR-SDD Doc # 39 Filed 03/06/17 Pg 6 of 8 Pg ID 435
litigation that occurred with respect to the Old EO. The concerns relied upon by the Plaintiffs 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 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 (that is, covered aliens overseas without a visa) applying for visas prospectively, the Government notes that the visa approval process is a lengthy one, and the type of temporary suspension of entry at issue in the New EO will not cause immediate harm where applicants have no entitlement to a visa and normally must wait a period of months or longer to apply and/or be issued a visa or travel document if found eligible. Notably, however, no such individuals are at issue in this litigation at this time.
In sum, there is no basis for a permanent injunction. Thus, the Government respectfully submits that proceedings in this matter should proceed in a manner to allow this Court a more complete opportunity to assess the provisions of the New EO and the constitutional claims of Plaintiffs.
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Dated: March 6, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director
GISELA A. WESTWATER Assistant Director
EREZ REUVENI Senior Litigation Counsel
By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney District Court Section Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-0106 Facsimile: (202) 305-7000 e-Mail: joshua.press@usdoj.gov
BRIANA YUH Trial Attorney
Counsel for Defendants

7

2:17-cv-10310-VAR-SDD Doc # 39 Filed 03/06/17 Pg 8 of 8 Pg ID 437
CERTIFICATION OF SERVICE
I hereby certify that on March 6, 2017, I electronically filed the foregoing
paper with the Clerk of the Court using the ECF system which will send
notification of such filing to the following:
Helal A. Farhat Hfarhat@saflegal.com
Kassem M. Dakhlallah Kassemdakhlallah@aol.com
Natalie C. Qandah Natalie@vidalawpllc.com
Nabih H. Ayad Ayadlaw@hotmail.com
Michael J. Steinberg Msteinberg@aclumich.org
Miriam J. Aukerman maukerman@aclumich.org
Mona Fadlallah MONA@VIDALAWPLLC.COM
Counsel for Plaintiffs
By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division
Counsel for Defendants

2:17-cv-10310-VAR-SDD Doc # 39-1 Filed 03/06/17 Pg 1 of 20 Pg ID 438
EXHIBIT 1

2:17-cv-10310-VAR-SDD Doc # 39-1 Filed 03/06/17 Pg 2 of 20 Pg ID 439

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

2:17-cv-10310-VAR-SDD Doc # 39-1 Filed 03/06/17 Pg 3 of 20 Pg ID 440
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

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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

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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

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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

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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

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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.

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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.

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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

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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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(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;

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(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

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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

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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

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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

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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;

2:17-cv-10310-VAR-SDD Doc # 39-1 Filed 03/06/17 Pg 18 of 20 Pg ID 455
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(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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(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.

2:17-cv-10310-VAR-SDD Doc # 39-1 Filed 03/06/17 Pg 20 of 20 Pg ID 457
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.
# # #

 
 2:17-cv-10310-VAR-SDD Doc # 45 Filed 03/16/17 Pg 1 of 6 Pg ID 835

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs,

Case No. 2:17-cv-10310-VAR-SDD

v.

Hon. Victoria A. Roberts

DONALD TRUMP, et al.,

Mag. J. Stephanie D. Davis

Defendants.

PLAINTIFFS’ NOTICE REGARDING DEFENDANTS’ MOTION TO DISSOLVE INJUNCTION On February 2, 2017, the Court entered an order titled “Order Regarding Plaintiffs’ Motion for Temporary Restraining Order” (ECF #8) (the “Injunction Order”) with respect to the January 27, 2017 Executive Order (No. 13,769) titled “Protecting the Nation from Foreign Terrorist Entry Into the United States” (the “January 27, 2017 Executive Order”). The Injunction Order stated, “[T]he United States is PERMANENTLY ENJOINED from applying Sections 3(c) and 3(e) of the January 27, 2017 Executive Order against lawful permanent residents of the United States.” On February 6, 2017, Defendants filed a Motion to Dissolve Injunction and Amend Order (ECF #15), which Plaintiffs opposed. In the wake of injunctions

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issued by other courts against the January 27, 2017 Executive Order, the parties subsequently filed Status Updates regarding their positions (ECF #33, 36).
Effective March 16, 2017, the January 27, 2017 Executive Order has been revoked by the President, pursuant to Section 13 of Executive Order No. 13,780, which was issued on March 6, 2017. Section 3(b)(i) of the March 6, 2017 Executive Order No. 13,780 exempts lawful permanent residents from the provisions barring entry.
Therefore, Plaintiffs ask that this Court deny as moot Defendants’ Motion to Dissolve Injunction and Amend Order (ECF #15).
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Dated: March 16, 2017

Respectfully submitted,

Counsel for Arab American Civil Rights League

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

/s/ Rula Aoun Rula Aoun (P79119) 4917 Schaefer Rd. Dearborn, MI 48126 (313) 633-0231 rula@acrlmich.org

HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC /s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com

VIDA LAW GROUP, PLLC /s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com

Counsel for American Arab Chamber of Commerce
FARHAT & ASSOCIATES, PLLC /s/ Helal Farhat Helal Farhat (P64872) Counsel for the Arab American Chamber of Commerce 6053 Chase Rd. Dearborn, MI 48126 (313) 945-5100 hfarhat@saflegal.com

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Counsel for Arab American and Chaldean Council
/s/ Nida Samona Nida Samona (P45356) Attorney at Law Arab Chaldean Council (“ACC”) 363 W. Big Beaver Rd., Suite 300 Troy, MI 48084 (248) 559 1990 Nidas@myacc.org

Counsel for Hend Alshawish, Salim Alshawishm, Yusef Abdullah, Fahmi Jahaf, and Mohamed Alshega

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) Attorney for Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

/s/ Rula Aoun Rula Aoun (P79119) 4917 Schaefer Rd. Dearborn, MI 48126 (313) 633-0231 rula@acrlmich.org

HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC /s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com
/s/ Ali K. Hammoud Ali K. Hammoud (P73076) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 ah@hdalawgroup.com

VIDA LAW GROUP, PLLC /s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com

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Counsel for American Civil Liberties Union of Michigan, Arab American Studies Association, Adeeb Saleh, Sofana Bella, Hilal Alkateeb and S.A., a
minor through her Parent and Next Friend, Hilal Alkatteeb

/s/ Miriam Aukerman Miriam Aukerman (P63165) American Civil Liberties Union Fund of Michigan 1514 Wealthy SE, Suite 242 Grand Rapids, MI 49506 (616) 301-0930 maukerman@aclumich.org
/s/ Michael J. Steinberg Michael J. Steinberg (P43085) Daniel S. Korobkin (P72842) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org
/s/ Jason C. Raofield Jason C. Raofield (D.C. Bar #463877) Covington & Burling LLP One City Center 850 10th Street, NW Washington, D.C. 20001 (202) 662-5072 Email: jraofield@cov.com

/s/ Samuel R. Bagenstos Samuel R. Bagenstos (P73971) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 (734) 647-7584 sbagen@gmail.com
/s/ Margo Schlanger Margo Schlanger (N.Y. Bar #2704443 (3d Dept)) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 (734) 615-2618 margo.schlanger@gmail.com

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CERTIFICATE OF SERVICE This Notice was filed on March 16, 2017, via the Court’s ECF system, which provides notice to all counsel of record.
/s/ Jason C. Raofield Jason C. Raofield

 
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE (“ACRL”), on behalf of itself, its members, and its clients, AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN (“ACLU”), on behalf of itself and its members, AMERICAN ARAB CHAMBER OF COMMERCE, on behalf of itself and its members, ARAB AMERICAN AND CHALDEAN COUNCIL (“ACC”), on behalf of itself and its clients, ARAB AMERICAN STUDIES ASSOCIATION (“AASA”), on behalf of itself and its members, HEND ALSHAWISH, SALIM ALSHAWISH, YOUSEF ABDULLAH, FAHMI JAHAF, MOHAMED ALSHEGA, ADEEB SALEH, SOFANA BELLA, HILAL ALKATTEEB, and S.A., a minor through her Parent and Next Friend, HILAL ALKATTEEB, on behalf of themselves and all others similarly situated,

Plaintiffs, v.

Case No. 17−cv−10310 Hon. Victoria A. Roberts Mag. J. Stephanie D. Davis

DONALD TRUMP, President of the United States, U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”), U.S. CUSTOMS AND BORDER PROTECTION (“CBP”), U.S. CITIZENSHIP AND IMMIGRATION SERVICES (“USCIS”), U.S. DEPARTMENT OF STATE, U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, JOHN KELLY, Secretary of DHS, KEVIN K. MCALEENAN, Acting Commissioner of CBP, LORI SCIALABBA, Acting Director of USCIS, REX W. TILLERSON, Secretary of State, JEFF SESSIONS, Attorney General, MICHAEL DEMPSEY, Acting Director of National Intelligence, and the UNITED STATES OF AMERICA,

Defendants. __________________________________________________________________/

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SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION 1. President Donald Trump has been very clear about his desire to prevent Muslims from entering the United States. He specifically promised to do so as a candidate, calling on December 7, 2015 “for a total and complete shutdown of Muslims entering the United States.” Throughout his campaign he reiterated his desire to prevent Muslims from coming to the United States and his belief that Muslims should not have equal rights with others in American society. 2. On January 27, 2017, President Trump sought to fulfill his campaign promise by signing executive order 13769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “January 27 Order”), 82 Fed. Reg. 8977 (Raofield Decl. ¶ 3, Ex. A), which banned entry into the United States of both refugees and the nationals of seven predominantly Muslim countries. 3. The January 27 Order was developed by advisors to Mr. Trump whom he tasked with finding a way to implement a Muslim ban indirectly, after his original campaign proposal to ban Muslims was criticized as blatantly unconstitutional religious discrimination. In addition, as President Trump admitted on national television, through the January 27 Order he intended to favor Christian refugees over Muslim refugees. Rarely in American history has governmental
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intent—at the highest levels—to discriminate against a particular faith and its adherents been so plain.
4. The January 27 Order resulted in chaos and widespread civil rights abuses at airports, demonstrations nationwide, and emergency litigation across the country.
5. Implementation of the January 27 Order was halted by the courts. This court entered a nationwide injunction on February 2, 2017, which barred enforcement of the January 27 Order against lawful permanent residents, Dkt. 8, Pg. ID # 69. The next day, the U.S. District Court for the Western District of Washington entered a nationwide injunction that barred enforcement of many provisions of the January 27 Order against any non-citizen. State of Washington v. Trump, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017), motion for stay pending appeal denied, 847 F.3d 1151 (9th Cir. 2017).
6. Thereafter, President Trump promised to issue a new executive order. He claimed that injunctions by the courts imperiled national security. The President, however, delayed issuance of the new order. White House officials admitted that the purpose of the delay was to enable the President to benefit from favorable news coverage after his first address to Congress.
7. White House officials explained that the revised order would contain only minor, technical changes from the January 27 Order, and would thus produce
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the same basic policy outcome. That basic goal and outcome was, and remains, the exclusion of Muslims from the United States.
8. On March 6, 2017, President Trump rescinded and replaced the January 27 Order with a revised document, executive order 13780, 82 Fed. Reg. 13209, effective March 16, 2017 (the “March 6 Order” or the “Executive Order”; together, we refer to the January 27 Order and the March 6 Order as the “Executive Orders”) (Raofield Decl. ¶ 4, Ex. B).
9. The January 27 Order and the March 6 Order have the same purpose and effect. Both were intended and designed to target and discriminate against Muslims, and both did and do just that in operation.
10. The major provisions of the March 6 Order are nearly identical to those of the January 27 Order. The new order bans individuals from six of the seven predominantly Muslim countries identified in the January 27 Order – Yemen, Libya, Somalia, Sudan, Iran and Syria (the “Designated Countries”) – from entering the United States for at least 90 days. Like the previous order, the March 6 Order suspends the entire United States Refugee Admissions Program for at least 120 days and reduces the maximum number of refugees allowed into the United States for the current fiscal year from 110,000 to 50,000. The March 6 Order also contains language that associates Muslims with violence, terrorism, bigotry and hatred. That language inflicts stigmatic and dignitary harms. As a
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result, the March 6 Order will have the same discriminatory and stigmatizing impact on Muslims as the January 27 Order, which was itself a product of the President’s clearly expressed intent to prevent Muslims from entering the United States.
11. While the March 6 Order contains various additions and revisions intended to help insulate it from legal challenges that led to the enjoining of the January 27 Order, the Trump Administration has made clear that the March 6 Order is intended to effectuate the same policy outcome as the January 27 Order. The March 6 Order likewise suffers from the same fundamental constitutional and statutory defects as the January 27 Order.
12. Like the January 27 Order, the March 6 Order violates cherished constitutional protections: the guarantee that the government will not establish, favor, discriminate against, or condemn any religion; the guarantee of freedom of speech and association; and the guarantee of equal protection of the laws.
13. The United States was born in part of an effort to escape religious persecution, and the Religion Clauses of the First Amendment reflect the harrowing history of our Founders. More than two centuries later, our nation is one of the most religiously diverse in the world and has become a sanctuary for immigrants and visitors of all faiths and no faith, including refugees fleeing persecution in their homelands.
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14. The March 6 Order flies in the face of our historical commitment to welcome and protect people of all faiths, and no faith. It violates the “clearest command of the Establishment Clause”—“one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).
15. The United States was likewise founded on the principle that all people—regardless of their faith or where they are born—are created equal. Freedom of speech and assembly are similarly fundamental to our democracy. The equal protection guarantee of the Fifth Amendment reflects this country’s rejection of official preferences on the basis of race, color, or religion. The First Amendment guarantees our right to hear from and associate with speakers of different faiths. The March 6 Order—which was motivated by animus toward Muslims and expressly discriminates on the basis of national origin—runs afoul of these core constitutional values as well.
16. Plaintiffs challenge the March 6 Order as violating the Establishment Clause and the right to freedom of speech and association under the First Amendment, and the equal protection guarantee of the Due Process Clause of the Fifth Amendment.
17. Plaintiffs respectfully request that this Court issue appropriate declaratory relief and preliminarily and permanently enjoin the March 6 Order as a whole.
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PARTIES The Plaintiffs 18. Plaintiff Arab American Civil Rights League (“ACRL”) is a nonprofit organization based in Dearborn, Michigan, that protects the civil rights of Arab Americans through education and advocacy. ACRL is a membership organization, the majority of whose members are practicing Muslims and are from Middle Eastern backgrounds, including from the Muslim-majority Designated Countries. Likewise, the majority of ACRL’s clients are practicing Muslims and are from Middle Eastern backgrounds, including from the Muslim-majority Designated Countries. ACRL asserts claims on behalf of itself, its members, and clients. The rights of its clients that ACRL seeks to vindicate here are inextricably bound up with its organizational mission and purpose, and its clients face numerous hurdles to bringing this suit in their own name. 19. Plaintiff American Civil Liberties Union of Michigan (“ACLU”) is a nonprofit membership organization with more than 36,000 members, headquartered in Detroit, Michigan, and is a state affiliate of the national American Civil Liberties Union, which is itself a membership organization of more than a million members. The ACLU has long been dedicated to protecting the constitutional rights of its members and of all people in Michigan, including their
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rights to religious liberty, freedom of speech and association, and equal protection of the laws. The ACLU asserts claims on behalf of itself and its members.
20. The American Arab Chamber of Commerce (hereinafter “Chamber”) is a non-profit, membership organization dedicated to promoting and empowering its member businesses. Located in Dearborn, Michigan, the Chamber is currently the largest Arab American business organization in the country. The Chamber seeks to promote its members by offering networking opportunities as well as by fostering trade between Michigan-based companies and businesses located in the Middle East. The Chamber’s membership includes businesses founded or run by immigrants from the Designated Countries and by refugees. Many of these business leaders are Muslim. The Chamber asserts claims on behalf of itself and its members.
21. Arab American and Chaldean Council (“ACC”) is a human services non-profit, headquartered in Detroit, Michigan, which has existed since 1979 and whose mission is to support the overall well-being of the Middle Eastern community in the Metro Detroit region by providing services in public and behavioral health, along with a focus on education, English as a Second Language (ESL) classes, employment, training and placement, youth life skills classes in schools, youth recreation, cultural activities along with Woman, Infant and Children (WIC) and the Michigan Department of Health and Human Services
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(DHHS) support. ACC asserts claims on behalf of itself and its clients. The rights of ACC’s clients that it seeks to vindicate here are inextricably bound up with its organizational mission and purpose, and its clients face numerous hurdles to bringing this suit in their own name.
22. The Arab American Studies Association (“AASA”) is a non-profit, nonpolitical organization of scholars and other persons interested in the study of Arab American history, ethnicity, culture, literature, art, music, politics, religion, and other aspects of the Arab American experience. The AASA is a membership organization, headquartered in Dearborn, Michigan. The AASA asserts claims on behalf of itself and its members.
23. As set forth in greater detail below, implementation of the Executive Orders has caused substantial harm to, and will continue to harm, ACRL, its members, and its clients; the ACLU and its members; the American Arab Chamber of Commerce and its members; ACC and its clients; and AASA and its members.
24. Plaintiff Hend Alshawish is a lawful permanent resident of the United States, a citizen of Yemen, and a Muslim. She is married to plaintiff Salim Alshawish. She resides in New York, and is a member of ACRL and of the American Civil Liberties Union.
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25. Plaintiff Salim Alshawish is a citizen of the United States and is Muslim. He is married to plaintiff Hend Alshawish. He resides in New York, and is a member of ACRL and of the American Civil Liberties Union.
26. Plaintiffs Hend and Salim Alshawish have two children, aged 12 and 15, who are citizens of Yemen and are Muslim. The children have been unable to join their parents in the United States due to the Executive Orders.
27. Plaintiff Yousef Abdullah has been a citizen of the United States since 2009 and is Muslim. He resides in Wayne County, Michigan and is a member of ACRL and of the ACLU.
28. Plaintiff Yousef Abdullah is married to Hanan Alafif, a citizen of Yemen. Ms. Alafif is also Muslim. Ms. Alafif currently resides in Yemen. The Executive Orders have barred Ms. Alafif from joining her husband and their two young children in the United States.
29. Plaintiff Fahmi Jahaf is a citizen of the United States and is Muslim. He resides in Wayne County, Michigan and is a member of ACRL and of the ACLU. Plaintiff is married to Basema Al Reyashi, a citizen of Yemen. Ms. Al Reyashi is also Muslim, and currently resides in Yemen. Due to the Executive Orders, Plaintiff Jahaf’s wife cannot join him in the United States.
30. Plaintiff Mohamed Alshega is a citizen of the United States and is a Muslim. He resides in Wayne County, Michigan and is a member of ACRL and of
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the ACLU. Plaintiff’s son, Badr Alshega, is a citizen of Yemen. Mr. Alshega is also Muslim and currently resides in Yemen. Due to the Executive Orders, Plaintiff Alshega’s son cannot join his father in United States.
31. Plaintiff Adeeb Saleh is a U.S. citizen and resident of Dearborn Heights, Michigan who is married to Amira Ahmed Ali Aleshawi, a citizen of Yemen. Mr. Saleh and Ms. Aleshawi are Muslim, and are members of ACRL and the ACLU. As a result of the Executive Orders, Ms. Aleshawi, who has been stranded in Malaysia for a year while her visa application was pending, cannot reunite where her husband and their three daughters in the United States.
32. Plaintiff Sofana Bella is a U.S. citizen and resident of Grand Blanc, Michigan. She previously applied for a K-1 visa on behalf of her fiancé, Khalid Ahmed, a citizen of Sudan. She is a member of ACRL and of the ACLU.The Executive Orders prevent Ms. Bella from having her husband-to-be join her in the United States.
33. Plaintiff Hilal Abdo Kaid Alkatteeb is a United States citizen and a Muslim who resides in Detroit, Michigan. He is a member of ACRL and of the ACLU. Mr. Alkatteeb’s wife, Rim Mohammed Ahmed Shamsan, is citizen of Yemen and is Muslim. The Executive Orders have prevented Ms. Shamsan from joining her husband in the United States.
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34. Plaintiff S.A. is the two-year-old daughter of Hilal Abdo Kaid Alkatteeb and Rim Mohammed Ahmed Shamsan. S.A. is a United States citizen and is being raised in the Muslim faith. Plaintiff Alkatteeb is her parent and next friend.
35. The Executive Orders prevent S.A. from living together with both of her parents in the United States, forcing her parents to choose between separating S.A. from her mother so that S.A. can live in safety in the United States, or having S.A. live with her mother in war-torn Yemen.
36. As set forth in greater detail below, implementation of the Executive Orders has caused and will continue to cause harm to Plaintiffs Hend Alshawish, Salim Alshawish, Yousef Abdullah, Fahmi Jahaf, Mohamed Alshega, Adeeb Saleh, Sofana Bella, Hillal Alkatteeb, and S.A. (collectively, the “Individual Plaintiffs”).
The Defendants 37. Defendant Donald Trump is the President of the United States. He issued the Executive Orders challenged in this suit. He is sued in his official capacity. 38. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet-level department of the United States federal government. Its components include U.S. Citizenship and Immigration Services and U.S. Customs and Border
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Protection. The Executive Orders assign DHS a variety of responsibilities regarding implementation and enforcement.
39. Defendant U.S. Customs and Border Protection (“CBP”) is an agency within DHS. CBP’s responsibilities include inspecting and admitting immigrants and nonimmigrants arriving at international ports of entry, including airports and land borders. The Executive Order assigns CBP a variety of responsibilities regarding implementation and enforcement.
40. U.S. Citizenship and Immigration Services (“USCIS”) is an agency within DHS. USCIS’s responsibilities include adjudicating requests for immigration benefits for individuals located within the United States, and it therefore has a variety of responsibilities regarding implementation and enforcement of the Executive Order.
41. Defendant U.S. Department of State (“DOS”) is a cabinet-level department of the United States federal government that is responsible for the issuance of immigrant and nonimmigrant visas abroad. The Executive Orders assign DOS a variety of responsibilities regarding implementation and enforcement.
42. Defendant Department of Justice (“DOJ”) is a cabinet-level department of the United States federal government which has certain responsibilities with respect to the Immigration and Nationality Act. The Executive
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Order assigns certain responsibilities regarding implementation and enforcement to the Attorney General, who heads the Department of Justice.
43. Defendant Office of the Director of National Intelligence (“ODNI”) is an independent agency of the United States federal government. ODNI has specific responsibilities and obligation with respect to implementation of the Executive Orders.
44. Defendant John Kelly is the Secretary of Homeland Security. Secretary Kelly has responsibility for overseeing enforcement and implementation of the Executive Orders by all DHS staff, and staff of DHS’s component agencies, CBP and USCIS. He is sued in his official capacity.
45. Defendant Kevin K. McAleenan is the Acting Commissioner of CBP and has responsibility for overseeing enforcement and implementation of the Executive Orders by all CBP staff. He is sued in his official capacity.
46. Defendant Lori Scialabba is the Acting Director of USCIS and has responsibility for overseeing enforcement and implementation of the Executive Orders by all USCIS staff. She is sued in her official capacity.
47. Defendant Rex W. Tillerson is the Secretary of State and has responsibility for overseeing enforcement and implementation of the Executive Orders by all DOS staff. He is sued in his official capacity.
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48. Defendant Jeff Sessions is the Attorney General of the United States and oversees the DOJ’s activities with respect to the Immigration and Nationality Act. The Executive Order assigns certain responsibilities regarding implementation and enforcement to the Attorney General. He is sued in his official capacity.
49. Defendant Michael Dempsey is the Acting Director of National Intelligence, and has responsibility for overseeing enforcement and implementation of the Executive Orders by all ODNI staff. He is sued in his official capacity.
50. Defendant United States of America includes all government agencies and departments responsible for enforcement and implementation of the Executive Orders.
JURISDICTION AND VENUE 51. This Court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343 and 1361. This court has further remedial authority pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. 52. Venue is proper under 28 U.S.C. § 1391(e). Defendants are officers or employees of the United States acting in their official capacities, agencies of the United States, and the United States. Plaintiffs ACRL, ACLU, American Arab Chamber of Commerce, ACC, AASA, Abdullah, Jahaf, Alshega, Saleh, Bella, Alkatteeb, and S.A. are residents of this district, and no real property is involved in
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this action. Further, a substantial part of the events or omissions giving rise to this action occurred in this District.
FACTUAL ALLEGATIONS President Trump’s Expressed Intent to Target Muslims and to Favor Christians Seeking to Enter the Country 53. President Trump has repeatedly made clear his intent to enact policies that exclude Muslims from entering the United States and favor Christians seeking to enter the United States. 54. On December 7, 2015, then-Presidential Candidate Trump issued a statement on his campaign website. Entitled “DONALD J. TRUMP STATEMENT ON PREVENTING MUSLIM IMMIGRATION,” the statement declared that “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.” 55. The statement invokes stereotypes of Muslims, falsely suggesting that all Muslims believe in “murder against non-believers who won’t convert” and “unthinkable acts” against women. 56. The statement suggests that a Muslim ban is necessary to prevent “horrendous attacks” on U.S. soil because “there is great hatred towards Americans by large segments of the Muslim population.”
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57. Defending his proposed Muslim ban the next day, Candidate Trump told Good Morning America, “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.”
58. At the time President Trump took the oath of office, the statement remained on his campaign website. And while this fact has been highlighted in numerous lawsuits challenging the Executive Order, President Trump has elected to leave the statement on his campaign website to this day.
59. When asked the same day on MSNBC how his Muslim ban would be applied by customs officials, Candidate Trump said, “That would be probably— they would say, are you Muslim?” A reporter followed up by asking, “And if they said yes, they would not be allowed in the country[?]” Candidate Trump responded, “That’s correct.”
60. This overt religious animus was consistent with statements and proposals Candidate Trump had previously made. For example, on September 30, 2015, while speaking at a campaign event in New Hampshire, Candidate Trump said that the 10,000 Syrian refugees admitted by the Obama administration in 2016 “could be ISIS” and promised “if I win, they’re going back!”
61. In addition, in a series of interviews in the weeks prior to the release of his statement, Candidate Trump had indicated that he would require Muslims in
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the United States to register with the government, and he had insisted that the country had “absolutely no choice” but to shut down mosques.
62. Throughout the presidential campaign, Candidate Trump repeatedly reiterated his support for targeting Muslims seeking to enter the United States.
63. On March 9, 2016, Candidate Trump stated, “I think Islam hates us. There’s . . . a tremendous hatred there . . . . There’s an unbelievable hatred of us . . . . [W]e can’t allow people coming into this country who have this hatred of the United States . . . [and] of people that are not Muslim . . . .”
64. The next day, during a debate, Candidate Trump said he would “stick with exactly” what he had said the night before. When asked if he was referring to all 1.6 billion Muslims worldwide, he explained, “I mean a lot of them.” Candidate Trump stated later in the same debate, “There is tremendous hate. There is tremendous hate. Where large portions of a group of people, Islam, large portions want to use very, very harsh means.”
65. On March 22, 2016, Candidate Trump stated that “we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country,” adding, “You need surveillance. You have to deal with the mosques, whether we like it or not . . . . [T]hese attacks aren’t . . . done by Swedish people, that I can tell you.”
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66. The same day, Candidate Trump attacked Democratic candidate Hillary Clinton on Twitter, saying she wanted to “let the Muslims flow in.”
67. On June 13, 2016, one day after the Pulse nightclub shooting in Orlando, Candidate Trump delivered an address on “Terrorism, Immigration, and National Security,” in which he declared: “I called for a ban after San Bernardino, and was met with great scorn and anger but now, many are saying I was right…. 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.” In the address he blamed “Muslim communities” of refusing to “turn in the people who they know are bad―and they do know where they are.”
Development of the Pretext for Targeting Muslims Prior to the Election 68. During the summer of 2016, in response to widespread outrage at his
proposed Muslim ban, Candidate Trump worked with others to develop a pretext to disguise his religious animus and justify his determination to take action targeting Muslims.
69. In May of 2016, Candidate Trump asked former New York City Mayor Rudolph Giuliani to put together a “commission” to advise Candidate Trump on his proposed Muslim ban.
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70. In a televised interview, Mr. Giuliani explained: “So when he 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.’”
71. In early July 2016, Mr. Giuliani described a memorandum his commission had prepared for Candidate Trump, and he suggested that this memorandum had caused the candidate’s proposal to shift from a “general ban” to “very specific, targeted criteria” focusing on specific countries.
72. In a subsequent interview, Mr. Giuliani again attributed the purported evolution of the Muslim ban to the work of his commission, which included Congressman Michael McCaul and General Michael Flynn, among others: “We wrote a paper for him. And he amended it to the ban would be restricted to particular countries, and it would not be a ban. It would involve extreme vetting…. All the rest from countries [other than Syria] that contain dangerous populations of radical Islamic extremists, he will subject them to extreme vetting, but not a ban.”
73. In a July 24, 2016 interview on Meet the Press, Candidate Trump was asked if a plan similar to the Executive Orders at issue in this litigation was a “rollback” from “[t]he Muslim Ban.” Candidate Trump responded: “I don’t think so. I actually don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territory.” Candidate Trump continued: “People were so upset when I used the word ‘Muslim.’ ‘Oh, you can’t use the word ‘Muslim.’’
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Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”
74. In an address on August 15, 2016, Candidate Trump characterized a long list of terror attacks as all being linked by the “common thread” that they “involved immigrants or the children of immigrants.” In this speech, invoking offensive Muslim stereotypes, he decried “the oppression of women and gays in many Muslim nations” and the targeting of “Christians driven from their homes,” and he called for the establishment of an “ideological screening test” to ferret out those who do not share our values. He went on to proclaim that American “values should be taught by parents and teachers, and impressed upon all who join our society. Assimilation is not an act of hostility, but an expression of compassion.”
75. On August 17, 2016, the Trump campaign announced that Candidate Trump had convened a “Roundtable on Defeating Radical Islamic Terrorism,” to discuss “improving immigration screening and standards” to keep radical Muslims out of the country. This group included, among others, General Flynn, thenSenator Jeff Sessions, former Mayor Giuliani, Congressman Peter King, former Attorney General Michael Mukasey, and Congressman McCaul.
76. In a debate on October 9, 2016, one month before the election, Candidate Trump claimed that: “The Muslim ban is something that in some form has morphed into extreme vetting from certain areas of the world.”
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Continued Development of the Executive Order During the Transition Period
77. Ordinarily, the President consults relevant cabinet-level officials and agencies before issuing an Executive Order. However, the January 27 Executive Order did not arise out of the usual process.
78. Shortly after his election victory, President-elect Trump selected General Flynn―a key member of the Giuliani commission―to serve as his national security adviser.
79. Just a few months earlier, General Flynn had described “Islamism” in a televised speech as “a vicious cancer inside the body of 1.7 billion people on this planet” and stated that “it has to be excised.”
80. During the transition period following the election and before the inauguration, development of the January 27 Order was overseen by certain Trump advisors, including Stephen Bannon and Stephen Miller.
81. Mr. Bannon has previously made anti-Muslim comments. He has stated that “most people in the Middle East, at least 50%, believe in being shariacompliant,” and that “[i]f you’re sharia-compliant or want to impose sharia law, the United States is the wrong place for you.”
82. In 2003, Mr. Miller wrote: “We have all heard about how peaceful and benign the Islamic religion is, but no matter how many times you say that, it
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cannot change the fact that millions of radical Muslims would celebrate your death for the simple reason that you are Christian, Jewish or American.”
83. During the transition period, members of the Trump transition team consulted with staff working for the House Judiciary Committee. It has been reported that these staffers carried out this work unbeknownst to members of the Committee, and were required to sign nondisclosure agreements. Committee Chairman Rep. Bob Goodlatte has verified that the staffers’ involvement began after the election and ended before the inauguration.
84. In late December 2016, as development of the January 27 Order was underway, President-elect Trump was asked whether he had changed his “plans to create a Muslim registry or ban Muslim immigration.” He responded: “Hey, you’ve known my plans all along and it’s, they’ve proven to be right. 100 percent correct.”
Issuance of the January 27 Order Following the Inauguration
85. On January 20, 2017, Donald J. Trump became the 45th President of the United States of America.
86. President Trump selected the controversial Rev. Franklin Graham to speak at his inauguration. Rev. Graham had spent the past fifteen years characterizing Islam as “a religion of war” and insisting Islam “has not been hijacked by radicals. This is the faith, this is the religion.”
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87. As of January 20, 2017, news reports indicated that an executive order would be signed shortly and would restrict entry to the country by individuals from seven majority Muslim countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.
88. On January 27, 2017, President Trump sought to fulfill his campaign promise by signing an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.”
89. The January 27 Order was intentionally designed to target Muslims, discriminate against Muslims, and disparage Islam, and it did just that in operation.
90. Contemporaneous statements made by President Trump and his advisors around the signing of the Executive Order confirm President Trump’s intent to discriminate against Muslims.
91. For instance, during the signing ceremony, President Trump made clear that the order was targeted at Muslims, pledging that it would “keep radical Islamic terrorists out of the United States of America.”
92. In an interview with the Christian Broadcasting Network released the same day that he signed the Executive Order, President Trump stated that the Order was designed to give Christians priority when applying for refugee status. “If you were a Muslim you could come in [to the United States], but if you were a Christian, it was almost impossible,” he said. “[T]hey were chopping off the heads
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of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.”
93. Consistent with this expressed animus towards Muslims and preference for Christians, the January 27 Order clearly disfavored Muslims while giving special treatment to non-Muslims.
94. Section 3 of the Order, for example, banned any entry for 90 days for individuals from seven countries. All seven of these countries are predominantly Muslim: Syria, Sudan, Iraq, Iran, Libya, Somalia, and Yemen.
95. The January 27 Order did not single out any countries that are not majority-Muslim for disfavored treatment.
96. The January 27 Order provided a mechanism for the government to extend and/or expand the ban at the end of the 90-day period. Section 3 of the Order directed the Secretary of Homeland Security to “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,” and to “submit to the President a report on the results of the review . . . within 30 days of the date of this order.” At that point, the “Secretary of State shall request all foreign governments that do not supply such information to start providing such information,” and 60 days after
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that – precisely at the end of the initial 90-day ban period – the January 27 Order provides for the President to issue a proclamation indefinitely banning travelers from a list of countries deemed to be non-compliant “until compliance occurs.”
97. On information and belief, despite the passage of more than 50 days, the 30-day review to be conducted by the Secretary of Homeland Security has not yet resulted in a report to the President.
98. Section 5 of the January 27 Order banned the admission of Syrian refugees indefinitely and prohibited other refugee admissions for 120 days.
99. The January 27 Order discriminated between persons of majority and minority faiths in their country of origin. Section 5(b) of the Order required the government 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” once the 120-day ban on refugee admissions is complete.
100. During those 120 days, moreover, Section 5(e) of the January 27 Order allowed the admission of certain refugees on a discretionary case-by-case basis, “only so long as [the Secretaries of State and Homeland Security] 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.”
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101. The President has conceded that these provisions were intended to allow Christian refugees to enter the United States, even while Muslim refugees from the same countries were prohibited from doing so. And indeed, Muslims were severely disadvantaged by the minority-faith preferences set forth in Sections 5(b) and 5(e).
102. There is no statutory, regulatory, or constitutional basis for favoring refugees from minority faiths over refugees from majority faiths. There is no basis in the Refugee Act of 1980, as amended – which governs the admission of refugees to the United States and their resettlement herein – to prioritize refugees fleeing persecution on the basis of religion, as opposed to other congressionallyrecognized bases. See 8 U.S.C. § 1101(a)(42) (defining “refugee”).
103. The indefinite ban on Syrian refugees contained in the January 27 Order also made plain, and put into practice, President Trump’s intent to limit the entry of Muslims into the United States. In fiscal year 2016, Syrian refugees made up 32% of all Muslim refugees who entered the United States, but only 0.2% of the Christian refugees who entered the United States.
104. Section 5(d) reduced, by more than half, the annual refugee admissions allotment that was set prior to the current fiscal year by President Obama (from 110,000 to 50,000).
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105. As of the end of February 2017, approximately 37,000 refugees had already been resettled in the United States. The number of refugees already somewhere in the U.S. Refugee Admissions Program pipeline – well over 50,000 – would put the U.S. refugee resettlement total above Section 5(d)’s reduced admissions cap of 50,000.
106. As a result, upon information and belief, Defendants have already undertaken various actions to bring to a halt the U.S. refugee resettlement process as a result of Section 5(d)’s reduction in this fiscal year’s figure.
107. For example, upon information and belief, shortly after the January 27 Order was signed, Defendant USCIS, a component of Defendant Department of Homeland Security, cancelled nearly all refugee processing interviews abroad.
108. Additionally, upon information and belief, Defendant Department of State has suspended security checks for refugees, a process that often takes between 18-24 months.
109. Further, on information and belief, since the January 27 Order was signed, CBP has questioned foreign nationals entering the United States about their religious beliefs to determine whether or not they are Muslim and their degree of religiosity, and has subjected Muslim travelers to disproportionate and discriminatory scrutiny and interrogation.
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The Chaotic and Irregular Implementation of the January 27 Order 110. The implementation of the January 27 Order was extremely unusual and chaotic. Upon information and belief, the White House bypassed regular channels for input and cooperation from other components of the Executive Branch, including the Secretaries of Homeland Security, Defense, and State. Moreover, upon information and belief, CBP was not given clear operational guidance during critical times in the implementation of the January 27 Order. 111. The January 27 Order was signed without final review or legal analysis from DHS, which—along with the DOS—was principally charged with implementing the Order. 112. Secretary of Homeland Security Kelly was reportedly in the midst of a conference call to discuss the Order when someone on the call learned from watching television that the Order they were discussing had been signed. 113. Similarly, Secretary of Defense Mattis, who had publicly criticized President Trump’s proposal to ban Muslims from the United States, reportedly did not see a final version of the order until the day it was signed, and was not consulted during its preparation. 114. During the days leading up to and following the signing of the January 27 Executive Order, its scope and provisions were changed, despite the changes bearing no rational relationship to the purported reasons for the Order.
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115. For example, the night the January 27 Order was signed, the Department of Homeland Security issued guidance interpreting the Order as not applying to lawful permanent residents. Overnight, the White House overruled that guidance, applying the Order to lawful permanent residents subject to a case-bycase exception process. On information and belief, the decision to continue applying the January 27 Order to lawful permanent residents was taken on the advice of Mr. Bannon.
116. After the detention at airports of many individuals, including lawful permanent residents, led to chaos nationwide, Secretary Kelly issued a statement “deem[ing] the entry of lawful permanent residents to be in the national interest.” Secretary Kelly’s statement was made pursuant to Section 3(g) of the order, which requires such a decision to be made jointly with the Secretary of State and “on a case-by-case basis.”
117. Finally, on February 1, the Counsel to the President purported to interpret the January 27 Order as exempting lawful permanent residents from the ban entirely.
118. Similarly, initial guidance from DOS indicated that individuals with dual citizenship, with one country of citizenship subject to the ban, would be banned from entering the United States. On information and belief, word of a
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change in that policy spread irregularly, with notice being given to airlines and foreign nations but contradicted in official U.S. government communications.
119. Finally, CBP announced a changed policy, explaining, in response to the question “Does ‘from one of the seven countries’ mean citizen, national or born in?” that “Travelers are being treated according to the travel document they present.”
120. The government also reversed itself on its policy toward holders of Special Immigrant Visas from Iraq. Holders of these visas are clearly banned under the terms of the January 27 Order, and they were refused entry when it went into effect. However, on February 2, 2017, the government changed course and allowed them to enter the United States despite the January 27 Order.
121. Still other aspects of the January 27 Order and its implementation demonstrate utter disregard for the individuals affected by it. For example, President Trump and officials involved in drafting the order knew that the Order would bar the entry of individuals who were literally mid-air when the Order was issued. Nonetheless, and absent any exigency that would justify it, the Order was signed late on a Friday afternoon and took immediate effect. That decision had a number of predictable consequences, including: making it more difficult for the federal employees tasked with enforcing the order to obtain instructions on how to interpret and enforce the Order’s ambiguous provisions; prolonging the detentions
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at airports of those affected, and leading many to be wrongfully deported; and increasing the difficulty advocates had in accessing their clients and the courts.
122. Other actions taken by DHS and DOS to enforce the January 27 Order exhibited a zealous desire to go beyond even the draconian measures the Order actually requires.
123. DOS, at the request of DHS, issued a letter purporting to provisionally revoke all immigrant and nonimmigrant visas of nationals of the seven designated countries on a categorical basis. The letter is dated January 27, 2017, but only came to light on January 31, 2017, when Department of Justice lawyers filed it in pending litigation. DOS stated that this action was taken to “implement[]” the January 27 Order.
124. Ordinarily, visas are revoked only after individualized consideration of whether a particular visa should be revoked, not through mass simultaneous revocation of a broad swath of visas.
125. Still further evidence of discriminatory intent and effect is reflected in the statements of President Trump and his Administration seeking to defend and justify the January 27 Order after it was issued.
126. President Trump, for example, falsely stated that only 109 people were detained over the weekend following the issuance of the January 27 Order, even though he knew or should have known that the number was far higher.
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127. Indeed, pursuant to a federal district court order, the federal government has since revealed that at least 746 individuals were detained over a period of just 27 hours during the weekend after the January 27 Order was signed. This 27-hour period did not begin until a day after the January 27 Order went into effect. So the total number of detained persons was necessarily higher, and perhaps much higher.
128. These chaotic, irregular, and irrational policies, policy changes, and statements indicate that the purported justifications for the January 27 Order were pretextual and support Plaintiffs’ allegation that the Order was motivated by an intent to discriminate against Muslims.
The Courts Enjoin Implementation of the January 27 Order 129. On February 2, 2017, this Court issued a nationwide injunction prohibiting enforcement of Sections 3(c) and 3(e) of the January 27 Order against lawful permanent residents. 130. On February 3, 2017, the United States District Court for the Western District of Washington (Robart, J.) enjoined the government from enforcing Sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the January 27 Order. 131. The same day and in response to the injunction, President Trump tweeted, “We must keep ‘evil’ out of our country!”
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132. President Trump also personally attacked Judge Robart as a “so-called judge,” calling his opinion “outrageous,” “ridiculous,” and “terrible.” President Trump falsely claimed that one consequence of Judge Robart’s order is that now “anyone, even with bad intentions” must be allowed to enter the country, saying that the judge had “open[ed] up our country to potential terrorists” and put it in “such peril.” President Trump advised the public to “blame him and the court system” if “something happens.” Comments like this by a President about a sitting judge are extremely unusual, if not unprecedented, and reflect a fundamental lack of respect for important constitutional principles.
133. The government appealed Judge Robart’s order to the Ninth Circuit and sought a stay pending appeal.
134. After hearing oral argument, the Ninth Circuit issued a published decision denying the government’s motion for a stay, noting that “although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.” Washington v. Trump, 847 F.3d 1151, 1164 (9th Cir. 2017).
135. In reaching its holding, the Court noted that the “[t]he Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” Id. at 1168.
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136. The Court also acknowledged “evidence of numerous statements by the President about his intent to implement a ‘Muslim ban’” and observed that “[i]t is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” Id. at 1167.
137. Shortly after the Ninth Circuit issued its opinion, President Trump tweeted, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” He subsequently denounced the opinion as “a political decision” and stated, “[W]e’re going to see them in court, and I look forward to doing that. It’s a decision that we’ll win, in my opinion, very easily.”
138. On March 7, 2017, the government withdrew its appeal of the February 3 Order, leaving in place the nationwide preliminary injunction of Sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the January 27 Order.
The Administration Struggles to Create Post-Hoc Justifications for the Executive Order 139. Although some pronouncements by President Trump and his administration suggested that the government would seek to appeal the Ninth Circuit’s decision, other White House officials indicated that they were drafting a new Executive Order in order to circumvent that court’s and other judicial rulings regarding the constitutionality of the January 27 Order.
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140. On February 16, 2017, following the Ninth Circuit’s per curiam decision, President Trump said, “[W]e can tailor the order to that decision and get just about everything, in some ways, more.”
141. On February 21, 2017, Senior White House Policy Advisor Stephen Miller, a key architect of the January 27 Order, stated that a revised order would be issued within a “few days” and that it was driven by the very same policy. “And so these are mostly minor, technical differences. Fundamentally, you are still going to have the same, basic policy outcome for the country.” When Mr. Miller was asked whether changes were being made in an attempt to alleviate constitutional concerns, he was defiant: “The rulings from those courts were flawed, erroneous and false. The president’s actions were clearly legal and constitutional.”
142. Around this time, senior White House officials began to leak accounts that President Trump had ordered DHS to work with DOJ to collect information that would justify the temporary ban on travel from the seven affected countries included in the January 27 Order. One White House official said, “DHS and DOJ are working on an intelligence report that will demonstrate that the security threat for these seven countries is substantial and that these seven countries have all been exporters of terrorism into the United States.”
143. Numerous intelligence officials began expressing their shock at this request, which was perceived as an attempt to politicize intelligence.
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144. At least two intelligence prior reports prepared by DHS refuted the justification for barring entry by individuals from the seven countries identified in the January 27 Order.
145. One draft intelligence report prepared by DHS assessed the potential heightened threat of terroristic activity posed by individuals from the seven countries affected in the January 27 Order and concluded that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.” This report found that less than half of the 82 individuals involved in terrorist activities since 2011 were foreign-born, and of those, “The top seven origin countries of the foreign-born individuals are: Pakistan (5), Somalia (3), and Bangladesh, Cuba, Ethiopia, Iraq, and Uzbekistan (2).”
146. A second intelligence assessment, prepared by DHS less than a week before issuance of the March 6 Order, concluded that “most foreign-born, U.S.based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry,” and that many entered as minors and “nearly all parents who entered the country with minor-age children likely did not espouse a violent extremist ideology at the time they entered or at any time since, suggesting these foreign-born individuals were likely not radicalized by their parents.” The report also found that integration and mentoring services provided by federal, state, and private
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organizations to refugees and asylees could address underlying factors that lead to the radicalization of foreign-born U.S. residents.
147. Counter to the Trump Administration’s initial rhetoric emphasizing the urgency of a travel ban, the release of the March 6 Order was repeatedly delayed for political reasons.
148. At one point, the White House indicated that President Trump would sign the Executive Order on March 1, 2017, but this was delayed yet again. One Administration official told a news outlet on February 28 that a reason for President Trump’s delay in signing an updated Executive Order was “the busy news cycle,” and the desire of the President that the new order “get plenty of attention.”
149. A senior Administration official told a different news outlet on March 1, 2017, that a related reason for the delay in releasing the updated Executive Order was the “positive reaction” to President Trump’s “first address to Congress” on the evening of Tuesday, February 28, 2017. The official said, “We want the (executive order) to have its own ‘moment.’” The article reported that “[s]igning the executive order Wednesday, as originally indicated by the White House, would have undercut the favorable coverage,” and the senior Administration official “didn’t deny the positive reception was part of the [A]dministration’s calculus in pushing back the travel ban announcement.”
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150. On February 27, 2017, Press Secretary Sean Spicer discussed the soon-to-be-issued March 6 revised order, saying: “the goal is obviously to maintain the way that we did it the first time.”
The March 6 Order Alleges a Different Purpose But Seeks the Same End Result
151. On March 6, 2017—a full month after the District Court for the Western District of Washington enjoined the January 27 Order—President Trump issued the revised executive order. The March 6 Order is entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.”
152. In a press briefing the day the March 6 Order was issued, Press Secretary Sean Spicer said that “the principles of the executive order remain the same.” Spicer was correct: the key principle of anti-Muslim animus that doomed the January 27 Order to unconstitutionality was unchanged.
153. The same day the March 6 Order was issued, President Trump sent an email to supporters saying the order was fulfilling his promise to “keep America safe” by imposing restrictions on immigration from countries associated with “radical Islamic terrorism.”
154. The same day the Department of Homeland Security published a “Q&A” document with answers to thirty-seven questions about the March 6 Order. See Raofield Decl. ¶5, Ex. C.
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155. Consistent with the statement of top administration officials that the new order would seek to accomplish the same goals as the original order, the March 6 Order, after explicitly referring to the Ninth Circuit’s ruling, exempts certain categories of noncitizens that “have prompted judicial concerns” from the ban, and alters the original order’s “approach to certain other issues or categories of affected aliens” “in order to avoid spending additional time pursuing litigation” over the constitutionality of the original order. See March 6 Order, Section 1(c), (i).
156. The March 6 Order significantly revises and expands the purpose and policy sections of the January 27 Order, while keeping the substantive impact of the two Orders much the same.
157. The January 27 Order stated that “[i]t is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States.” The March 6 Order implicitly acknowledges that both U.S. and foreign citizens commit acts of terrorism, stating that “[i]t is the policy of the United States to protect its citizens from terrorist attacks, including those committed by foreign nationals.” March 6 Order, Sec. 1. Yet the March 6 Order, like the January 27 Order, does not include any actions to address terrorist attacks by citizens of the United States.
158. The purpose and policy sections of the January 27 Order drew heavily on stereotypes about Muslims, justifying the ban as protecting citizens from
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foreign nationals “who would place violent ideologies over American law,” “who intend to commit terrorist attacks in the United States,” or “who engage in acts of bigotry or hatred (including ‘honor’ killings . . .).” January 27 Order, Sec. 1, 2. The March 6 Order replaces some of those discriminatory allusions to Muslims (although retaining others, as described below). The March 6 Order asserts that “conditions in six of the previously designated countries . . . demonstrate why their nationals continue to present heightened risks to the security of the United States.” March 6 Order , Sec. 1(e). Brief country descriptions then follow. Id.
159. The March 6 Order identifies only two concrete examples of persons who have committed terrorism-related crimes in the United States, after either entering the country “legally on visas” or entering “as refugees”:
a. “[I]n 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.” (Iraq is no longer covered by the travel ban.)
b. “And in October 2014, a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction[.]” Id. at 1(h). (The March 6 Order continues to bar entry to refugee children from Somalia.)
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160. Notwithstanding the revised and expanded “Policy and Purpose” section and certain other changes discussed more fully below, the March 6 Order is extremely similar to the January 27 Order in most important respects.
161. Like the January 27 Order, the March 6 Order bans entry for a 90-day period for individuals from six of the same seven predominantly Muslim countries identified in the January 27 Order: Syria, Sudan, Iran, Libya, Somalia and Yemen. March 6 Order, Section 2(c). Iraq is now omitted from that list. The six Designated Countries have overwhelmingly Muslim populations that range from 90.7% to 99.8%.
162. The comparable provision of the January 27 Order (Section 3(c)) was enjoined by the courts as unconstitutional. Nevertheless, the March 6 Order retains this unconstitutional provision.
163. Section 3 of the March 6 Order differs from the original in that it does not immediately apply to individuals with existing visas,1 and makes exceptions from its travel ban for lawful permanent residents, dual nationals traveling on
1 Under Section 3(a), “the suspension of entry pursuant to section 2 of this order shall apply only to foreign nationals of the designated countries who: (i) are outside the United States on the effective date of this order; (ii) did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and (iii) do not have a valid visa on the effective date of this order.” See March 6 Order, Section 3(a)(i)(iii).
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passports issued by a non-designated country, refugees living in the United States
and certain other non-citizens.2
164. Nevertheless, the March 6 Order bars entry for virtually all other
nationals of the Muslim-majority Designated Countries, including: relatives of
U.S. citizens from the listed countries; family members of U.S. citizens who are
seeking to reunite with their families on immigrant visas; students who have been
admitted to study in the United States but not yet received visas; prospective
employees who have been offered positions but not yet obtained visas; students
and employees who may need to renew their visas; and many other individuals
protected by prior court injunctions.3
2 Section 3(b) lists categorical “exceptions” from Section 2: lawful permanent residents; foreign nationals who are admitted or paroled into the United States “on or after the effective date of this order”; foreign nationals with “a document other than a visa . . . that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document”; dual nationals traveling on passports issued by a non-designated country; foreign nationals traveling on certain diplomatic visas; and foreign nationals who have been granted asylum as well as refugees who have been admitted to the United States. Id. at Section 3(b)(i)-(iv). 3 In the Department of Homeland Security’s Q&A document about the March 6 Order, DHS relates that nationals from one of the six designated countries who are presently in the United States, and “in possession of a valid single entry visa,” will have to obtain “a valid visa or other document permitting [them] to travel to and seek admission to the United States” in order to leave and obtain “subsequent entry to the United States.” See Exhibit C, at Q4. DHS also relates that international students, exchange visitors and their dependents from the six designated countries—who are in the United States presently but whose visas “expire[] while the Executive Order is in place”— will have to “obtain a new, valid visa to return to the United States” if they have to “depart the country.” See id. at Q25.
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165. Like the January 27 Order, the March 6 Order also provides a mechanism for the government to extend the 90-day ban at the end of the 90-day period and/or to expand the ban to nationals from additional countries. Section 2(a) of the March 6 Order directs the Secretary of Homeland Security to “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.” In addition, the March 6 Order explicitly provides that the review need not be conducted in a consistent manner between countries: “The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.” Id.
166. As with the January 27 Order, the March 6 Order provides for the submission of a report on the Secretary of Homeland Security’s review within 20 days (rather than 30 days), a period (50 days rather than 60 days) for countries to respond to the review, and a provision for the President to thereafter issue a proclamation indefinitely banning nationals from a list of countries deemed to be non-compliant. Id., Section 2.
167. The corresponding provisions of the January 27 Order (Section 3) were not enjoined by the courts, and remained in effect through March 15, 2017.
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The country-by-country report required under the January 27 Order was due on February 26, 2017, eight days before the March 6 Order was issued. On information and belief, that report was not produced.
168. The March 6 Order states that “Iraq presents a special case” because of the “close cooperative relationship between the United States and the democratically elected Iraqi government” and because 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” (Section 1(g)). With this justification, the March 6 Order exempts foreign nationals of Iraq from the categorical ban on entry applicable to other countries originally targeted by the January 27 Order. Instead, Iraqis are subject to “thorough review” and “consideration of whether the applicant has connections with ISIS or other terrorist organizations” (Section 4).
169. Like the January 27 Order, the March 6 Order cuts the number of refugees admissible to the United States for fiscal year 2017 from 110,000 to 50,000 and prohibits refugee admissions for 120 days, with an exception for discretionary case-by-case admissions. Compare January 27 Order, Section 5, with March 6 Order, Section 6.
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170. The 120-day suspension of refugee admissions—Section 5(a) of the January 27 Order—was enjoined by the courts as unconstitutional. Nevertheless, the March 6 Order retains that unconstitutional provision, now Section 6(a).
171. Section 6(a) of the March 6 Order is almost identical to its predecessor—enjoined section 5(a)—and differs only cosmetically, such as by modifying the refugee suspension to exclude those already scheduled for travel. While the March 6 Order removes other refugee provisions enjoined by the courts (particularly section 5(c), which indefinitely suspended entry of Syrian refugees, and section 5(e)’s explicit preference based on religious minority status), removal of those provisions does not alter the virtually complete overlap between new section 6(a) and enjoined section 5(a).
172. Section 6(a) of the March 6 Order, like its predecessor, provides that after the 120-day period is over, “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 “additional procedures”—identified by those officials as being necessary “to ensure that individuals seeking admission as refugees do not pose a threat” to the United States—have been “implemented” and “are adequate to ensure the security and welfare of the United States.”
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173. Although the March 6 Order several times describes the country ban as relating to “entry” into the United States, it also apparently bars ordinary visa processing for nationals of the six designated countries. Section 3(c) of the March 6 Order explains that “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 person from the six countries. Issuance of a visa is described as a “[c]ase-by-case waiver” of what is evidently intended to be a ban not just on entry but on new visas, as well.
174. The government conceded in a March 15, 2017 court hearing in that the March 6 Order halts visa processing for individuals from the Muslim-majority Designated Countries:
Although the Second Executive Order does not explicitly bar citizens of the Designated Countries from receiving a visa, the Government acknowledged at oral argument that as a result of the Second Executive Order, any individual not deemed to fall within one of the exempt categories, or to be eligible for a waiver, will be denied a visa. Thus, although the Second Executive Order speaks only of barring entry, it would have the specific effect of halting the issuance of visas to nationals of the Designated Countries. International Refugee Assistance Project v. Trump, No. TD-17-0361, slip op. at 21 (D. Md. March 16, 2017).
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175. Like the January 27 Order, the March 6 Order allows for waivers to the six-country ban on a discretionary case-by-case basis. For the country ban, the January 27 Order simply stated that visa and other immigration benefits may be issued “when in the national interest,” while the March 6 Order provides nine examples of situations where a waiver could be appropriate, such as for “an individual needing urgent medical care.” Compare January 27 Order, Section 3(g) with March 6 Order, Section 3(c). The circumstances enumerated in the March 6 Order reflect specific examples of individuals whose denial of entry pursuant to the January 27 Order resulted in the filing of lawsuits and widespread public outcry.
176. Likewise, the refugee ban remains subject to waivers on the same terms as the January 27 Order : “[O]n a case-by-case basis, in their discretion, but only so long as [the Secretaries of State and Homeland Security] determine” that the refugee’s admission (1) “is in the national interest,” and (2) does not pose a threat “to the security or welfare of the United States.” January 27 Order, Section 5(e); March 6 Order, Section 6(c).
177. Like the January 27 Order, the March 6 Order reinforces stereotypes about Muslims and associates Muslims with violence, bigotry, and hatred, thereby discriminating against them and inflicting stigmatic and dignitary harms, among other types of injury.
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178. For example, Section 11 of the March 6 Order (Section 10 of the January 27 Order) requires the Secretary of Homeland Security to periodically publish information about the number of “foreign nationals” involved in, among other things, terrorism-related activities, radicalization, and “gender-based violence against women, including so-called ‘honor killings’”—direct echoes of thenCandidate Trump’s broad statements disparaging Islam and Muslims.
179. Similarly, Section 6(d) of the March 6 Order (which is identical to Section 5(g) of the January 27 Order) seeks to expand the limited role State and local governments have in the refugee resettlement process beyond that envisioned by Congress. That section aims to authorize and facilitate the stated desire and intent of some states and localities in the United States to discriminate against lawfully-admitted refugees on the basis of their nationality and/or religion. See, e.g., Exodus Refugee Immigration, Inc. v. Pence, 838 F.3d 902 (7th Cir. 2016) (affirming preliminary injunction on equal protection grounds of state executive order issued by then-Governor of Indiana Mike Pence that sought to prevent the resettlement in the State of refugees from Syria).
180. In short, the March 6 Order was motivated by the same anti-Muslim purpose that motivated the January 27 Order. In replicating much of the substance of the January 27 Order, the new Order has the same effect as it predecessor: it broadly bans nationals from listed majority-Muslim countries from both entry and
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receipt of visas; it suspends the U.S. Refugee Admissions Program in order to
prevent the entry of Muslims into the United States; and it reinforces stereotypes
about Muslims by associating them with terrorism, violence, bigotry and hatred.
181. In the words of the United States District Court for the District of
Hawaii, which granted a temporary restraining order against the March 6 Order on
the evening of March 15, 2017, as this complaint was being finalized:
Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and [the individual plaintiff] in particular, are likely to succeed on the merits of their Establishment Clause claim.
Hawaii v. Trump, No. 17-00050, slip op. at 28 (D. Haw. March 15, 2017).
182. In response to the Hawaii restraining order, President Trump told a
rally in Nashville the same evening:
The order he blocked was a watered-down version of the first order that was also blocked by another judge and should have never been blocked to start with . . . . This new order was tailored to the dictates of the 9th Circuit’s—in my opinion—flawed ruling . . . . And let me tell you something, I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place.
Immigrants and Refugees Are Already Very Carefully Screened
183. Individuals applying for family or employer-based visas are subject to
an extensive, demanding vetting process that was already in place long before the
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Executive Orders were issued. A sponsor, such as an employer or family member, must first submit a petition on behalf of the visa applicant. In the case of familybased visas, the qualified sponsoring individuals must submit their petitions along with documentation establishing their U.S. citizenship or lawful permanent resident status, as well as documentation establishing their relationship with the visa applicant. Petitioners must also pay filing fees.
184. Once petitions are approved, the applicants’ information is then sent to the National Visa Center (NVC). The NVC collects additional fees, forms, and documents from visa applicants and their sponsors. Applicants must submit relevant birth certificates, adoption records, court and prison records, marriage certificates, marriage termination documents, military records, photocopies of passports, and police certificates (if 16 years old or older). Each sponsor must also submit an Affidavit of Support and demonstrate that he or she has the ability to support the applicant financially in the United States.
185. Once the NVC has received all the relevant documentation, the visa applicant must submit Form DS-260 on the Consular Electronic Application Center. This form requires that the applicant fill in fields related to previous addresses; prior work, education, and training; family information; medical and health information; and criminal history.
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186. The information submitted in these various forms is screened against various federal databases to verify that the applicant is not on any U.S. terrorism watch lists and has not committed any immigration or criminal violations.
187. Visa applicants are then scheduled for an interview with a consular officer. Visa applications are not considered complete until the applicant has interviewed with a consular officer.
188. Individuals seeking refugee status in the United States must clear additional hurdles prior to admission.
189. About three million refugees have been resettled in the United States since Congress passed the Refugee Act of 1980, which created the Federal Refugee Resettlement Program and the current national standard for screening and admission of refugees into the country.
190. Most refugees admitted to the United States are screened and referred by the United Nations High Commissioner for Refugees (UNHCR). During the UNHCR screening process, screeners conduct multiple, detailed interviews with every refugee applicant. UNHCR screeners also collect initial documentation, conduct home country reference checks, and perform biological screening prior to referring successful applicants to a U.S. State Department Resettlement Support Center.
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191. Refugees recommended for resettlement in the United States are selected in accordance with criteria that give preference to survivors of torture, victims of sexual violence, targets of political persecution, families with multiple children, or those with female heads of household.
192. Less than one percent of refugees worldwide are referred to the United States for resettlement.
193. In addition to referrals from the UNHCR, the Department of State occasionally accepts referrals from United States embassies or specially trained nongovernmental organizations.
194. Once the refugee applicant is referred to an Resettlement Support Center, refugee applicants are then subjected to an adjudication interview and a security screening, which is conducted jointly by DOS and DHS. The data collected is screened by several federal agencies, including the National Counterterrorism Center, FBI, DHS, Department of Defense, and the DOS.
195. Results from security screenings from each agency are transmitted back to DHS and DOS, where specially trained DHS officers review initial screening results and conduct in-person interviews in the host country. These interviews focus on confirming the information collected at various stages in the process; additional interviews may be conducted as new information arises. If inconsistencies emerge at any point, the case is put on hold until they can be
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resolved. DHS adjudicates the case only after all interviews and checks are completed. Officers from USCIS then review all of the information collected and conduct an additional in-person interview with each refugee applicant before deciding whether to approve the individual for resettlement in the United States. A Syrian refugee is likely to be interviewed at least three times over the course of this process.
196. These security checks for refugee applicants frequently take 18-24 months or even longer.
197. Following USCIS approval, all refugee applicants must undergo a health screening to address medical needs and identify contagious diseases.
198. The final step is for USCIS to request “sponsorship assurance” from a U.S.-based resettlement agency.
199. A senior administration official has estimated that, of the Syrian refugees admitted to the United States, 50% have been children, 25% are adults over 60, and about 2% have been single males of “combat age.”
200. As described above, because all refugees resettled in the United States undergo overlapping security screenings, interviews, and medical checks that involve numerous national security and intelligence agencies before being cleared for admission, the process leaves most refugees with less than a two-month window to travel to the United States. Families often have a smaller window,
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sometimes as little as a few days, during which all security checks, biometric screenings, and medical screenings are valid at the same time.
201. Because of the way the refugee screening process works, the effect of the March 6 Order, as well as its purpose and intent, is to halt the entire system, possibly for years, and make it extremely difficult for Muslim refugees and refugees from the Designated Countries to enter the United States. The March 6 Order by its terms suspends refugee resettlement for 120 days, but its practical effect is to deny entry to many refugees who have already waited for years to enter the United States, because even if the suspension is lifted after 120 days, the security checks, biometric screenings, and medical screenings of these applicants will no longer be valid.
The Executive Orders Do Not Advance National Security 202. There is no sound basis for concluding that Muslims generally, or Muslims from particular countries, are more likely to commit violent acts of terror than persons of other faiths or other countries. 203. Many alternatives exist that do not involve targeting individuals based on their faith or nationality as a proxy for faith, are less restrictive than the March 6 Executive Order, and are more closely tailored to legitimate national security concerns.
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204. Though cast as a measure to improve national security, the Executive
Orders have been criticized by numerous national security experts as undermining
their stated purpose.
205. On January 30, 2017, over 100 former U.S. intelligence officials
wrote a letter opposing the January 27 Order. The authors of this letter wrote,
Simply put, this Order will harm our national security. Partner countries in Europe and the Middle East, on whom we rely for vital counterterrorism cooperation, are already objecting to this action and distancing themselves from the United States, shredding years of effort to bring them closer to us. Moreover, because the Order discriminates against Muslim travelers and immigrants, it has already sent exactly 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. We may even endanger Christian communities, by handing ISIL a recruiting tool and propaganda victory that spreads their horrific message that the United States is engaged in a religious war.
206. Many these same officials also filed a joint statement with the Ninth
Circuit in Washington v. Trump further explaining the dangers posed by the
January 27 Order. The signatories, which included former Secretaries of State,
former CIA directors, former CIA deputy and acting directors, a former National
Security Advisor, and a former DHS Secretary, concluded that the January 27
Order would harm the interests of the United States in several respects, including
endangering American soldiers fighting alongside allies from the affected
countries; disrupting key counterterrorism, foreign policy, and national security
partnerships; endangering intelligence sources in the field; feeding ISIL
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recruitment efforts; disrupting ongoing law enforcement efforts; hindering family reunification and humanitarian efforts; and causing severe economic damage to American citizens and residents.
207. In a joint statement by Senators Lindsey Graham, who sits on the Senate Armed Services Committee, and John McCain, who sits on the Senate Armed Services Committee and Homeland Security and Governmental Affairs Committee, the two Republican Senators expressed their concerns about the poor vetting and lack of consultation between the White House and numerous federal departments tasked with protecting U.S. national security during the drafting of the January 27 Order. In their joint statement, the two senators wrote, “Our most important allies in the fight against ISIL are the vast majority of Muslims who reject its apocalyptic ideology of hatred. This executive order sends a signal, intended or not, that America does not want Muslims coming into our country. That is why we fear this executive order may do more to help terrorist recruitment than improve our security.”
208. U.S. counterterrorism officials expressed similar reservations about the January 27 Order. Paul Pillar, former Deputy Director of the CIA Counterterrorism Center, said, “The whole order is and will be read as another anti-Islam, anti-Muslim action by this president and his administration. It is not
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targeted at where the threat is, and the anti-Islam message that it sends is more
likely to make America less safe.”
209. Similarly, former CIA director Michael V. Hayden discussed the
efforts by U.S. diplomats, military commanders, and agency station chiefs to limit
the damaging fallout from the January 27 Order before concluding that the Order
“inarguably has made us less safe. It has taken draconian measures against a threat
that was hyped. The byproduct is it feeds the Islamic militant narrative and makes
it harder for our allies to side with us.”
210. The March 6 Order did not quell the concerns of intelligence officials,
military leaders and diplomats about the damage that the Executive Orders have
done to national security.
211. On March 10, 2017, a bipartisan group of 134 cabinet Secretaries,
senior government officials, diplomats, military service members and intelligence
community professionals sent a letter to President Trump expressing their concern
over March 6 Order. The letter states:
We are deeply concerned that the March 6, 2017 executive order halting refugee resettlement and suspending visa issuance and travel from six Muslim-majority countries will, like the prior version, weaken U.S. national security and undermine U.S. global leadership…. The revised executive order will jeopardize our relationships with allies and partners on whom we rely for vital counterterrorism cooperation and information-sharing. To Muslims— including those victimized by or fighting against ISIS—it will send a message that reinforces the propaganda of ISIS and other extremist groups, that falsely claim the United States is at war with Islam.
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Welcoming Muslim refugees and travelers, by contrast, exposes the lies of terrorists and counters their warped vision….
Following the 9/11 attacks, the United States developed a rigorous system of security vetting for travelers to our homeland, leveraging the full capabilities of the intelligence and law enforcement communities. Since then, the U.S. has added enhanced vetting procedures for travelers and has revised them continuously. Our government applies this process to travelers not once, but multiple times. Refugees are vetted more intensively than any other category of traveler. They are screened by national intelligence agencies and INTERPOL, their fingerprints and other biometric data are checked against terrorist and criminal databases, and they are interviewed several times. These processes undergo review on an ongoing basis to ensure that the most updated and rigorous measures are applied, and any additional enhancements can be added without halting refugee resettlement or banning people from certain countries.
The Grave Harm to the Plaintiffs, Their Members and Their Clients
212. Implementation and enforcement of the Executive Orders has already
caused the organizational Plaintiffs, their members and their clients, as well as the
Individual Plaintiffs, substantial, concrete, and particularized injury, and will
continue to harm them if not permanently enjoined.
213. The Individual Plaintiffs and many of the members and clients of the
organizational Plaintiffs are Muslim. The Executive Orders convey an official
message of disapproval and hostility towards Muslims, making clear that the
government deems them outsiders, not full members of the political community.
This marginalizes them, subjects them to suspicion and scrutiny and political
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isolation on the basis of religion and national origin, and inflicts other stigmatic and dignitary injuries.
214. The March 6 Order deeply affects the Individual Plaintiffs and the members and clients of the organizational Plaintiffs by conveying to them that the United States discriminates against individuals who share their ethnicity and who hold the same religious beliefs, including members of their own families.
215. The Plaintiffs believe that, as a result of the March 6 Order, there is now a favored and disfavored religion in the United States—in other words, that a religion has been established.
Arab American Civil Rights League (ACRL) 216. The ACRL works to build coalitions, promote understanding and cooperation and combat negative stereotypes. Led by prominent civil rights attorneys and advocates, the ACRL offers the community it serves a solid commitment to ensuring that their rights are protected and preserved. 217. ACRL works with Arab Americans from around the state of Michigan, which is home to the second largest Arab American community in the United States. ACRL’s members have been and continue to be affected by both the January 27 and the March 6 Order. 218. Many of ACRL’s members are refugees and/or family members of people seeking to enter the United States as refugees. Many of ACRL’s members
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are from the Muslim-majority Designated Countries and/or are family members of people from the Designated Countries who are seeking to immigrate to, travel to, study in, work in, or remain in the United States.
219. Due to the March 6 Order, members of ACRL live in forced separation from family members who are unable to enter the United States.
220. ACRL members were stranded abroad following issuance of the January 27 Order, and ACRL has been working continuously with these members and other impacted individuals to ensure their return to the United States. Other ACRL members face real and immediate threats of future harm, including the inability to reunite with family members from the Muslim-majority Designated Countries and the inability to travel outside the United States with assurance that they will be able to return to the United States.
221. The March 6 Order blocks ACRL’s members, including U.S. citizens and lawful permanent residents, from receiving visits from, and/or reunifying with, their family members who live in the Muslim-majority Designated Countries.
222. ACRL’s members and clients who are Muslim or who are from the Designated Countries have been marginalized as a result of the anti-Muslim message conveyed by the Executive Orders and subjected to baseless suspicion, scrutiny, and social isolation on the basis of religion and national origin.
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223. ACRL has also been directly affected by the Executive Orders because it has had to divert resources from its ordinary activities to cope with the fall-out from the Orders. ACRL has had to devote extensive leadership, attorney, and staff resources to responding to crises facing ACRL members as a result of the Orders, as well as to address widespread confusion and fear in the community that ACRL serves.
224. ACRL’s clients face numerous hurdles to bringing suit in their own name, including language and cultural barriers, lack of financial resources, rising Islamophobia which would subject them to intense scrutiny if they participate in litigation, and fear of retaliation by the Defendants given that Defendants have made anti-Islamic statements and have pledged aggressive action against immigrants and refugees.
American Civil Liberties Union of Michigan 225. The ACLU of Michigan is dedicated to protecting constitutional rights, including freedom of religion, freedom of speech, freedom of association and equal protection of the laws. The ACLU of Michigan and its members are harmed by the Executive Orders. 226. As a result of the Executive Orders, the ACLU has had to divert its resources from other organizational activities to address the consequences of those orders. After the January 27 Order was issued, the ACLU responded to the crisis
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by coordinating emergency legal assistance for impacted individuals and responding to numerous individual requests for assistance. Now that the March 6 Order has taken effect, the ACLU is beginning to respond in a similar way to the March 6 Order. As a direct result of the Executive Orders, ACLU staff have spoken and will continue to speak at numerous community fora, have responded and will continue to respond to media requests for information, and have distributed and will continue to distribute Know Your Rights materials to impacted communities.
227. The ACLU has members who are directly affected by the March 6 Order and its implementation, including individuals whose immediate family members are nationals of the Muslim-majority Designated Countries.
228. The March 6 Order blocks the ACLU’s members, including U.S. citizens, from receiving visits from, and/or reunifying with, their family members who live in the Muslim-majority Designated Countries.
229. The ACLU has members of many faiths—Islam, Christianity, Judaism and others—whose ability to live out the teaching of their faiths, to interact with co-religionists and members of other faiths, and to provide assistance to immigrants and refugees as a matter of religious conviction is directly affected by the Executive Orders.
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230. The ACLU has members who are U.S. citizens, permanent residents and other persons residing in the United States who wish to hear the speech of and associate with people of all faiths who are now unable to travel to the United States because of the March 6 Order.
231. The ACLU regularly organizes events to educate the public on pressing matters of public concern, including speakers who address civil liberties and civil rights issues of the moment.
232. The ACLU is organizing an event, tentatively entitled “Voices of the Muslim Ban,” which will bring prominent human rights activists and other speakers from the Muslim-majority Designated Countries to speak in Michigan. The ACLU anticipates that hundreds of people, including ACLU members, will attend the event.
233. Because the Executive Orders and Islamophobia are matters of pressing public concern, because the Executive Orders have created widespread fear within the Muslim and Arab-American communities in Michigan, and because the ACLU believes it is vitally important to counteract the rising tide of Islamophobia before it becomes even worse, the ACLU wishes to hold the “Voices of the Muslim Ban” event as soon as possible. Depending on speaker availability, the ACLU wishes to hold the “Voices of the Muslim Ban” event in early June.
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234. Organizing an event of this scale requires advance planning, including securing a venue on a specified date, organizing visas and travel arrangements for the invited speakers, and promoting the event.
235. The ACLU’s ability to organize the “Voices of the Muslim Ban” event with the ACLU’s chosen speakers depends on the ability of those speakers to enter the United States to participate in the event on a specified date.
236. The March 6 Order directly interferes with the ACLU’s ability to plan for and hold the Voices of the Muslim Ban event by barring the entry of speakers from the Muslim-majority Designated Countries for 90 days, by providing for a future Presidential proclamation prohibiting the entry of speakers from the Muslim-majority Designated Countries beyond 90 days, and by conditioning both visas and entry of speakers from the Muslim-majority Designated Countries on a waiver.
237. The March 6 Order will either prevent the ACLU from bringing in the ACLU’s desired speakers or will create obstacles to bringing in those speakers that would not exist for speakers who are not from the Muslim-majority Designated Countries.
238. Because, and only because, the speakers invited by the ACLU are from the Muslim-majority Designated Countries, those speakers cannot enter the
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United States to speak with the ACLU and its members unless the speakers obtain a case-by-case waiver under Section 3(c) of the March 6 Order.
239. Because Section 3(c) of the March 6 Order does not provide narrow, objective or definite standards for the issuance of case-by-case waivers, the ACLU does not know when or whether waivers will be approved, thereby interfering with the ACLU’s ability to plan for and organize the “Voices of the Muslim Ban” event.
240. Under Section 3(c) of the March 6 Order, in order for the speakers invited by the ACLU to speak at the “Voices of the Muslim Ban” event, Defendants must evaluate the proposed purpose of their travel to the United States and decide that denying those speakers the opportunity to speak would cause “undue hardship” and that their entry into the United States “would be in the national interest.” Defendants cannot make such an assessment without considering the identity of the speaker and the content of the speech.
241. The ACLU is further concerned that the desired speakers from the Muslim-majority Designated Countries will decline to come to the United States as a result of the Executive Orders. Some foreign speakers who are Muslim or whose national origin is in one of the Designated Countries are now refusing to come to the United States because they do not want to be subjected to possible prolonged and intrusive questioning, including questioning about their religious beliefs, as
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has reportedly begun occurring at ports of entry since issuance of the January 27 Order.
242. If the ACLU is able to hold the “Voices of the Muslim Ban” event, the ACLU may seek to organize or co-sponsor similar events featuring speakers impacted by the March 6 Order in the future.
The American Arab Chamber of Commerce 243. The Chamber seeks to promote and empower its member businesses on a local, national and international level. The Chamber seeks to strengthen its members by offering networking opportunities, events, and seminars to promote member businesses. The Chamber also seeks to promote its member businesses internationally by fostering trade between Michigan-based companies and businesses located in the Middle East, including in the Designated Countries. To this end, the Chamber provides international referrals, sponsorship of delegations and trade missions; and resources for accessing Middle Eastern business markets. 244. As the largest American-Arab business organization in the country, much of the Chamber’s work focuses on building economic and cultural bridges, locally, nationally, and globally. Internationally, the Chamber fosters trade and establishes relationships between the U.S. and Middle Eastern countries, and many of the Chamber’s member businesses have direct connections to Middle Eastern countries, including the Designated Countries. These efforts are largely led by the
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Chamber’s International Business Development Committee, which pursues projects to connect Chamber members with international business opportunities. As part of its mission, the International Business Development Committee seeks to foster closer business relationships and trade through trade missions between the United States and the Middle East, including the Designated Countries.
245. In order to establish and sustain their businesses, the Chamber’s members must be able to interact with businesspeople from the Designated Countries and be able to invite those businesspeople to the United States. The Executive Orders directly interfere with the ability of the Chamber’s members to conduct such business dealings.
246. Many of the Chamber’s members have employees who are immigrants from the Designated Countries or are refugees. The March 6 Order makes it more difficult and expensive for the Chamber’s members to recruit, hire, and retain the best employees, and undermines ability of the Chamber’s members to attract talent, business, and investment to the United States.
247. The Executive Orders also disrupt the Chamber’s mission of encouraging constructive relations and enhancing mutual understanding between the United States and Arab nations. The Chamber has received numerous inquiries from its membership as to whether the enforcement of the Executive Orders will strain relations between the United States and Arab nations, thereby undermining
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the Chamber’s mission of promoting greater understanding between the American people and Arab nations. Members are concerned that the Executive Orders create a negative stigma on Muslims and immigrants from the Designated Countries, directly conflicting with the missions and purposes of Chamber.
248. The Chamber’s membership includes businesses created or run by refugees and immigrants from the Designated Countries. Many of these business leaders are Muslim. Chamber members have been marginalized as a result of the anti-Muslim and anti-Arab message conveyed by the Executive Orders. These members have been subjected to baseless suspicion, scrutiny, and social isolation on the basis of religion and national origin.
249. The Chamber assists its members with the certification and legalization process for exports. While this service is not limited to Arab nations, given the Chamber’s members and its mission, this certification process primarily deals with exports intended for Arab nations, which includes the Designated Countries. The Chambers’ export certification and legalization services have been adversely affected by the Executive Orders.
250. Because of the Executive Orders, members of the Chamber cannot travel unencumbered and cannot complete legitimate business and social obligations unencumbered. These Executive Orders disrupt existing business ties with businesses in the Designated Countries, hinder the development of economic
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ties with the Designated Countries, and restrict the creation of any future business ventures between the Chamber’s members and the Designated Countries.
The Arab American and Chaldean Council (“ACC”) 251. ACC’s mission is to serve the Middle Eastern community of Southeast Michigan by maximizing the community’s skills, resources, and expertise. ACC’s programs – many of which are directed towards immigrants, refugees, and their families – deliver various programs in public and behavioral health, Woman, Infant and Children (WIC), Department of Health and Human Services (DHHS), Partnership, Accountability Training and Hope (PATH) services as well education, employment training, job readiness, English as a Second Language (“ESL”) classes, Youth Life skills education, along with youth recreation and cultural activities. The ACC also seeks to promote understanding between the Middle Eastern community, its Middle Eastern clients and the larger community of Metropolitan Detroit. ACC has 40 outreach offices and annually serves more than 80,000 individuals in the metro Detroit. 252. Many of ACC’s clients are recent immigrants and refugees from the Middle East, and/or family members of people seeking to enter the United States as refugees or immigrants from the Middle East. Many of ACC’s clients are from the Designated Countries and/or are family members of people from the Designated Countries. Many of ACC’s clients are Muslim. Likewise, many of
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ACC’s staff are refugees, immigrants from the Designated Countries, or family members of refugees and immigrants from the Designated Countries.
253. The Executive Orders, by promoting the idea that people from majority-Muslim, Middle Eastern countries are dangerous and should be treated differently, directly interfere with ACC’s ability to carry out its mission and harm ACC’s clients.
254. As a result of the Executive Orders, ACC has had to divert its resources from other organizational activities to address the consequences of those orders. For example, because ACC’s clients and the community it serves have been severely impacted by the Executive Orders, ACC’s senior leadership, as well as front-line staff, have had to set aside other responsibilities in order to educate the community about the Executive Orders, meet with other impacted organizations, respond to extensive press inquiries, and address pressing questions from impacted clients.
255. The Executive Orders also directly interfere with many of the ACC’s programs, which are too numerous to be set out here. A few representative programs that are harmed by the Executive Orders are described below.
256. ACC operates a variety of programs specifically to support refugees and immigrants. The Executive Orders threaten these programs because many
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potential future clients for these programs will no longer be able to enter the United States.
257. ACC’s Health Assessment Program, available in Wayne, Oakland and Macomb County, provides health screenings to refugees within 30 days of their arrival to the United States. These screenings involve the review of patient’s medical history vision, hearing, and dental health by trained professionals. Clients also receive age-appropriate immunizations and laboratory exam services to check for health concerns such as diabetes, anemia, Hepatitis and Tuberculosis. In 2015, this program provided 7,210 services to 1,442 individuals. The Executive Orders, by halting admission of refugees and reducing the number of refugees admitted, interferes with ACC’s Health Assessment Program and directly harms ACC’s refugee clients in those programs.
258. ACC’s Behavioral Health Division, which consists of five outpatient clinics, offers a comprehensive, community-based, outpatient program to address the emotional and psychological needs ACC’s clients. Since many of the ACC’s clients are refugees who have experienced persecution or even torture, the Behavioral Health Division offers services that focus on family, PTSD and severe trauma treatment. The Executive Orders, by halting admission of refugees and reducing the number of refugees admitted and barring entry to individuals from the
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Designated Countries, interferes with ACC’s ability to carry out these programs. The Executive Orders also directly harm the clients of this program.
259. ACC also assists refugee students and immigrant students, many of whom are from the Designated Countries, with ESL classes, career counseling, certification or professional license achievement, enrollment, and financial aid applications through three outreach offices at different Oakland Community College campus sites. The Executive Orders harm this program by barring admission into the United States for many future participants of the program. The Executive Orders also harm ACC’s current clients in this program, who may not be able to obtain the necessary immigration documents to complete their studies, and harm ACC which must now expend resources advising these impacted students.
260. The ACC provides a variety of employment and job training services for immigrants and refugees through its PATH program. The PATH program includes job counseling, resume writing workshops, vocational training, ESL and vocational ESL classes, and job placement services. Additionally, to ensure that all individuals can pursue a career, the PATH program offers access to Child Care services. The Executive Orders directly harm ACC’s clients in the PATH program and also interfere with the PATH Program’s ability to pursue community and economic development by interfering with the ability of potential immigrant and refugee entrepreneurs to enter the United States and by diverting resources of
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Growth Center staff to addressing problems faced by their clients as a result of the Executive Orders.
261. The ACC offers a range of English as a Second Language training courses as well as bilingual and trilingual services that help refugee and immigrant clients understand and complete official government documents. The Executive Orders, by halting admission of refugees and citizens of the Designated Countries, interferes with the ACC’s ability to carry out these programs.
262. The March 6 Executive Order, by restricting the flow of clients for ACC’s programs and affecting funding for those programs, will have a significant financial impact on ACC. ACC anticipates that, as a result of the March 6 Executive Order, it will have to lay off staff from the impacted programs, or reassign those staff to fill vacancies in other programs. The March 6 Executive Order also impacts ACC’s decisions whether to renew certain leases because it is unclear whether ACC will be able to continue the programs for which it had previously leased those spaces.
263. Some of ACC’s clients and staff who are United States citizens or lawful permanent residents have close family members who are nationals of the Designated Countries. The March 6 Executive Order prevents those ACC clients and staff from receiving visits from, and/or reunifying with, their family members who live in the Muslim-majority Designated Countries or who are refugees. Due to
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the March 6 Order, ACC clients live in forced separation from family members who are unable to enter the United States.
264. ACC’s clients face numerous hurdles to bringing suit in their own name, including language and cultural barriers, lack of financial resources, rising Islamophobia which would subject them to intense scrutiny if they participate in litigation, and fear of retaliation by the Defendants given that Defendants have made anti-Islamic statements and have pledged aggressive action against immigrants and refugees.
The Arab American Studies Association (“AASA”) 265. The AASA facilitates communication among scholars through meetings; promotes cooperation among members of the Association and persons or organizations concerned with Arab American Studies; stimulates academic research in Arab American Studies; and explores intersections and comparative approaches among Arab American, Arab, and diasporic Arab experiences. The AASA and its members are harmed by the Executive Orders. 266. The AASA has members who are U.S. citizens or lawful permanent residents whose national origin is from one of the Designated Countries, members with close family who are nationals of the Designated Countries, and members who engage in scholarly collaboration with nationals of the Designated Countries.
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267. Many AASA members work on issues of transnational migration, which requires study of where, why and how people leave their countries of origin and where, why and how they migrate to new areas. Such research necessarily involves research in countries where transnational migration originates, as well as close collaboration with scholars from those countries.
268. Because the Designated Countries are significant sources of transnational migration, it is particularly important for the AASA members to travel to those countries for research; to recruit faculty and graduate students from those countries; and to invite scholars from those countries for academic conferences, academic exchanges, and other scholarly collaboration. The March 6 Executive Order interferes with the ability of AASA members to do all of those things.
269. AASA members, particularly those who conduct research related to the Designated Countries, fear that they will be precluded from traveling to the Designated Countries when those countries institute reciprocal actions in response to the Executive Order, as Iran has already done.
270. The AASA and its members believe that in order for Arab American Studies to move forward as a field, it is critical that U.S.-based institutions recruit faculty and students from the Designated Countries, particularly given that these countries are pivotal to current understandings of transnational migration. AASA’s
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members who are U.S.-based faculty have, in the past, sought to recruit potential colleagues and students from the Designated Countries. Due to the March 6 Executive Order, AASA members can no longer recruit potential colleagues and students from the Designated Countries since those faculty and students will be unable to obtain visas to work or study in the United States.
271. AASA and its members have the goal of advancing learning and exchanging ideas with other scholars in the areas of Arab American studies, Middle Eastern Studies, Migration Studies and similar disciplines. This requires AASA and its members to be able to hear from, speak with, debate with and associate with scholars from the Designated Countries. The March 6 Executive Order will prevent AASA and its members from inviting scholars from the Designated Countries to present at academic conferences and engage in other collaborative research and scholarship projects.
272. Some of AASA’s members who are United States citizens or lawful permanent residents have close family members who are nationals of the Designated Countries. The March 6 Executive Order prevents those AASA members from receiving visits from, and/or reunifying with, their family members. For example, one AASA member, who is a United States citizen and an assistant professor for U.S.-Arab Cultural Politics at a major university, has ailing parents in Yemen, including a mother whose health is critical and for whom he wishes to
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obtain medical care in the United States. That AASA member cannot bring his parents to the United States.
273. The AASA will itself be harmed by the Executive Order. As part of its goal to advance learning, facilitate communication and promote cooperation, AASA sponsors conferences and other events that serve as a forum for scholarship, intellectual engagement, and pedagogical innovation. Due to the March 6 Order, scholars from the Designated Counties will not be able participate in those conferences. AASA selects papers for its conferences based on the quality of the scholarship, not the nationality of the scholar, and its ability to make such meritbased decisions will be impaired if it cannot invite scholars from the Designated Countries. The AASA also fears that it will not be able to hold academic conferences outside the United States because AASA members who are nationals of the Designated Countries currently based at U.S. institutions may be unable to attend for fear of being unable to return to the United States.
274. In addition, the March 6 Order could cause financial harm to AASA, by depriving it of membership dues and conference registration fees from individuals who cannot come to the United States as a result of the March 6 Executive Order.
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The Individual Plaintiffs 275. Plaintiffs Hend and Salim Alshawish have four children. Two of the children, A.A. and M.A., aged 3 and 7, are U.S. citizens and are currently residing in the United States. Two of the children, J.A.1 and J.A.2, aged 11 and 15, are citizens of Yemen and are currently in Yemen. 276. In November 2010, Mr. Alshawish petitioned for immigrant visas to bring his wife, Plaintiff Hend Alshawish, and their two Yemeni-citizen children, J.A.1 and J.A.2, to the United States. 277. Ms. Alshawish and the two minor children underwent extensive security and medical screening, and attended a consular interview. 278. On December 28, 2016, Ms. Alshawish was finally issued an IR1 spousal visa to enter the United States as a lawful permanent resident. Her visa was set to expire in six months. 279. However, upon the completion of the interview, the immigrant visas of the two minor children were not issued at the same time. Ms. Alshawish intended to wait till her children’s visas were issued before traveling to the United States. 280. On January 27, 2017, the date the January 27 Order was issued, Ms. Alshawish was in Egypt with J.A.1 and J.A.2. Mr. Alshawish had traveled to Egypt
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around September 20, 2016 to join her and their children before traveling back to the U.S. together.
281. As a result of the January 27 Order, Ms. Alshawish was barred from traveling to the United States.
282. Ms. and Mr. Alshawish closely monitored the news regarding the Executive Order. They heard many inconsistent reports from government officials about whether immigrant visas, such as the IR1 spousal visa Ms. Alshawish had obtained, would be revoked and whether individuals with immigrant visas would be allowed to obtain lawful permanent resident status.
283. For that reason, Ms. Alshawish and Mr. Alshawish decided to travel to the United States as soon as they learned that the January 27 Order had been enjoined by the courts, as it was unclear whether the injunction would be overturned on appeal. They booked last-minute tickets at considerable expense in order to ensure that Ms. Alshawish had the opportunity to enter the country while there was a window of opportunity to do so.
284. The decision to travel was heart-wrenching for Ms. Alshawish and Mr. Alshawish, because the immigrant visa applications for their two minor children, J.A.1 and J.A.2, were still in administrative processing and had not yet been approved. The couple had to decide whether Ms. Alshawish should travel while the injunction was in effect, allowing her to join her husband and two U.S.-
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citizen children in the United States and become a lawful permanent resident, even though that meant leaving her two Yemeni-citizen children behind.
285. In desperation, Ms. Alshawish and Mr. Alshawish decided to have Mr. Alshawish’s sister in Egypt care for J.A.1 and J.A.2, while Ms. Alshawish, Mr. Alshawish and their two U.S. citizen children traveled to the United States.
286. On February 5, 2017, Ms. Alshawish was allowed to board a flight to the United States, and was allowed enter the United States. Upon entry, her status became that of a lawful permanent resident. She is currently living with her two U.S.-citizen children.
287. Mr. Alshawish returned to Egypt on March 4, 2017 to care for J.A.1 and J.A.2. The children’s applications for immigrant visas have not yet been approved.
288. The March 6 Order prohibits citizens of Yemen, including J.A.1 and J.A.2, from entering the United States, and halts ordinary visa processing.
289. Due to the March 6 Order, Mr. and Ms. Alshawish cannot reunite their family by bringing their two Yemeni-citizen children to the United States to be with their mother and father and two U.S.-citizen siblings.
290. Mr. Alshawish, who works at a grocery store, is currently unable to work because he is in Egypt caring for J.A.1 and J.A.2, which imposes significant financial stress on the family.
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291. Plaintiff Fahmi Jahaf, a U.S. citizen, married his wife, Basema Al Reyashi, in February 2011. Mr. Jahaf filed an immigrant petition for his wife after their marriage. The couple then waited four years to receive notice of the scheduling of a consular interview.
292. Mr. Jahaf found out the case was dismissed in September 2015 for failure to respond to certain notices, but it was later determined that the National Visa Center has been sending notices to the wrong address. Mr. Jahaf refiled a petition in July 2016 for his wife and submitted documentation proving that the National Visa Center had been sending the letters to the wrong address. The National Visa Center expedited his petition and visa application when they learned they had made a mistake.
293. Ms. Al Reyashi’s case completed processing on January 2, 2017, and she has been waiting for an interview since that time. Ms. Al Reyashi lives in a region in Yemen where there is intense conflict and that is bombed regularly.
294. Mr. Jahaf has been waiting for six years for his wife’s visa to be approved so that she can join him in the United States.
295. The March 6 Order prohibits citizens of Yemen, including Ms. Al Reyashi, from entering the United States, and halts ordinary visa processing.
296. Due to the March 6 Order, Mr. Jahaf cannot bring his wife to the United States.
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297. Plaintiff Mohamed Alshega, a United States citizen, filed a petition in 2005 for his son, Badr Alshega, to come to the United States. Because Badr was over 21 years old, he was not eligible for immediate travel to the U.S and had to wait for his priority date to become current. Because of the limited number of visas available for adult children of U.S. citizens, petitioners generally must wait years for a visa to become available.
298. Not only does Badr Alshega’s father, Plaintiff Alshega, live in Michigan, but Badr Alshega’s entire family lives in Michigan.
299. In January 2017, after the family had waited 12 years, Badr Alshega’s priority date became current, and he travelled to Djibouti for an interview at the U.S. Embassy. Shortly thereafter, the January 27 Executive Order was issued, preventing Badr Alshega from obtaining the visa for which he and his father had waited for so long.
300. At the embassy, Badr Alshega’s passport was taken from him. He was told the embassy would mail his passport and visa and notify him when his visa was ready. Because Badr Alshega does not have a passport to travel back to Yemen, he has incurred the expense of remaining in Djibouti until he receives his visa.
301. The March 6 Order prohibits citizens of Yemen, including Badr Alshega, from entering the United States, and halts ordinary visa processing.
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302. Due to the March 6 Order, Plaintiff Alshega cannot bring his son to the United States.
303. Plaintiff Yousef Abdullah is a United States citizen and is married to Hanan Alafif, a national of Yemen. They have two children who are United States citizens and are Muslim. The two children, K.A. and Y.A., ages 6 and 3, currently reside in the United States with their father, Mr. Abdullah.
304. Ms. Alafif has been unable to join her spouse and children in the United States due to the Executive Orders.
305. The children, K.A. and Y.A., have not seen their mother since December 2015.
306. Mr. Abdullah’s youngest child, Y.A. age 3, has Type 1 Diabetes. He is administered insulin shots on a daily basis and frequents the hospital. Plaintiff Abdullah has been struggling to care for his sick child without the assistance and companionship of his wife. Y.A. urgently needs the care and support of his mother as he battles his illness. Mr. Abdullah, who works as restaurant server, takes significant time off from work to care for his sick child.
307. In January 2016, Mr. Abdullah petitioned for an immigrant visa to bring his wife, Ms. Alafif, to the United States.
308. Ms. Alafif’s case has completed processing as of October 6, 2016. Since then, she has been waiting to be scheduled for a consular interview. She is
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currently in Yemen and will have to travel to Djibouti when she receives an appointment date.
309. Mr. Abdullah was informed that as a result of the Original Executive Order, the Embassy had placed a freeze on the scheduling of visa appointments.
310. On March 8, 2017, the National Visa Center accepted Ms. Alafif’s case for expedited processing and forwarded her case to the U.S. Embassy Consulate General in Djibouti. Because it takes several weeks for a decision to be made, Ms. Alafif did not have a visa to enter the United States as of March 16, 2017, the effective date of the March 6 Order.
311. The March 6 Order prohibits citizens of Yemen, including Ms. Alafif, from entering the United States.
312. Due to the March 6 Order, Plaintiff Abdullah cannot reunite with his wife, Ms. Alafif, by bringing her to the United States. Also due to the March 6 Order, their children K.A. and Y.A. will continue to be separated from their mother.
313. Plaintiff Adeeb Saleh is a U.S. citizen who is married to Amira Ahmed Ali Aleshawi, a citizen of Yemen. The couple has three daughters and an infant son. Mr. Saleh also has two sons from a previous marriage.
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314. Mr. Saleh has been trying to bring his wife to the United States for almost five years. Ms. Aleshawi began the visa application process in April 2012, while residing in Yemen with the couple’s first daughter, then an infant.
315. For the past five years Mr. Saleh and Ms. Aleshawi have jumped through hoop after hoop in attempting to get her visa approved over the past five years. Initially, reviewing officers did not recognize the dissolution of Mr. Saleh’s first marriage and, therefore, did not recognize his marriage to Ms. Aleshawi in 2005. Following a successful appeal that recognized Mr. Saleh’s current marriage, Ms. Aleshawi’s visa application was again delayed, and Mr. Saleh was required to submit to paternity testing to establish that he was the father of the children he has with Ms. Aleshawi.
316. In January 2016, Ms. Aleshawi and the couple’s children (then three) traveled from Yemen to Malaysia in order to proceed with the visa application process (which they could not complete in Yemen). Mr. Saleh traveled to Malaysia in March 2016 to join his wife and daughters.
317. The couple’s daughters had visas for Malaysia that were set to expire in May 2016, so the family could not stay there. The family had not yet received Ms. Aleshawi’s visa for the United States. Mr. Saleh decided to return to the U.S. with only his daughters, who are U.S. citizens. This was a devastating decision for the family since the girls had lived with their mother for their entire lives.
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318. In late 2016, Mr. Saleh returned to Malaysia to assist his wife who was seven months pregnant at the time. Mr. Saleh decided not to uproot his daughters a second time, leaving them in the care of his sisters-in-law.
319. Mr. Saleh is currently with Ms. Aleshawi and their infant son in Indonesia. While Ms. Aleshawi’s visa application was being processed through the Malaysian consulate, her visa authorizing her stay in Malaysia expired and she was forced to relocate to Indonesia.
320. Throughout this entire visa application saga, Mr. Saleh’s international travel and various family expenses have depleted his savings of more than $52,000. Additionally, Mr. Saleh he has accrued substantial debt.
321. The March 6 Order bars Ms. Aleshawi entering the U.S., thereby preventing Mr. Saleh from living with his wife and their children in the United States. If he relocated his family to Yemen, they would be in danger due to the war there. Moreover, Mr. Saleh has had bone cancer and requires regular medical care from his physicians in the United States.
322. Mr. Saleh has already spent almost five years waiting to reunite his family. The March 6 Executive Order extends that wait indefinitely.
323. Plaintiff Sofana Bella, a U.S. citizen, became engaged to her fiancé, Khalid Ahmed, a citizen of Sudan, in June 2015.
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324. Shortly after the engagement, Ms. Bella and Mr. Ahmed applied for a K-1 visa, which is often referred to as a “fiancé visa.” While eligibility for K1 visas is restricted to, among other things, couples that have known each other for at least two years prior to filing a petition, Ms. Bella and Mr. Ahmed were confident that they would qualify for a waiver to this requirement based on the Sudan’s longestablished customs regarding courtship. In support of their waiver application, Ms. Bella and Mr. Ahmed submitted notarized letters from their respective families testifying to the strength of the relationship. Nevertheless, their application to waive the two-year relationship requirement was denied.
325. When Ms. Bella initially applied to sponsor Mr. Ahmed’s visa, the engaged couple planned to get married in March 2017. Because Mr. Ahmed did not have a visa by then, the couple postponed their marriage.
326. Ms. Bella and Mr. Ahmed have now known each other for the requisite two years required to obtain a “fiancé visa,” and are preparing a new K1 visa application.
327. The March 6 Order prohibits citizens of Sudan, including Mr. Ahmed, from entering the United States. Due to the March 6 Order, Ms. Bella cannot bring her fiancé Mr. Ahmed to the United States where they wish to live as a family.
328. Plaintiff Hilal Abdo Kaid Alkatteeb, a citizen of the United States, is married to Rim Mohammed Ahmed Shamsan, a citizen of Yemen.
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329. Mr. Alkatteeb and Ms. Shamsan have a two-year-old daughter, plaintiff S.A., who is a U.S. citizen but who has been living with her mother, first in Yemen and then in Malaysia. Mr. Alkatteeb is also the primary caregiver for his mother and father, both of whom suffer from debilitating illnesses and live with him in Detroit, Michigan.
330. In December 2015, Mr. Alkatteeb applied for an IR1 immigrant visa for his wife Shamsan. Because of the war in Yemen, Ms. Shamsan fled to Malaysia approximately a year and ten months ago, and has been living there while waiting for her visa to be processed.
331. Ms. Shamsan underwent extensive security and medical screening as part of the visa application process.
332. Mr. Alkatteeb traveled to Malaysia in February 2017 to assist his wife in the visa application process. Neither Mr. Alkatteeb nor Ms. Shamsan have permission to work while in Malaysia; their inability to work imposes an enormous financial strain on the family. Mr. Alkatteeb has already spent approximately $70,000 including immigration expenses, living expenses, and airfare.
333. Ms. Shamsan was scheduled for a visa interview to be held on February 21, 2017.
334. On January 28, 2017, the day after the January 27 Executive Order was issued, Ms. Shamsan’s visa interview appointment was cancelled via e-mail.
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335. On February 10, 2017, the family received a second e-mail indicating that as a result of court decisions, the Department of State had resumed processing immigrant visa applications for individuals who were nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan and Yemen.
336. Ms. Shamsan went to her visa interview on February 21, 2017, and thereafter supplied additional paperwork. To date she has not received a visa.
337. Malaysia allows noncitizens to remain in the country only temporarily. Mr. Alkatteeb is permitted to remain in Malaysia only until April 13, 2017, and Ms. Shamsan and their child will be forced to leave Malaysia by June 3, 2017.
338. If Ms. Shamsan does not receive a visa, she will have no other option but to return to Yemen, despite the widespread violence there.
339. Ms. Shamsan’s brother was killed in Yemen when a bomb hit the building where he worked. All of Mr. Alkatteeb’s father’s immediate family members have perished in the war in Yemen.
340. As a result of the Executive Orders, Mr. Alkatteeb and Ms. Shamsan are now forced to make an agonizing and life-threatening decision. Mr. Alkatteeb can return to the United States with their U.S. citizen daughter, who may then be separated from her mother forever, leaving Ms. Shamsan behind to risk her life
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traveling back to Yemen. Or Mr. Alkatteeb can leave his daughter with her mother, knowing that they could both lose their lives if they return to Yemen.
341. It is unclear whether the Individual Plaintiffs are eligible for a waiver under Section 3(c) of the March 6 Executive Order, whether such a waiver will be granted if they are eligible, or how long the process of seeking a waiver could take.
342. For the Individual Plaintiffs, pursuing a waiver on the theoretical possibility that it could be granted will involve additional time and expense. Consular processing for individuals from the Designated Countries frequently requires travel to a U.S. embassy in a third country.
343. By requiring a waiver for any visa or entry into the United States from the Designated Countries, the Executive Orders impose additional obstacles to the reunification of the Plaintiffs’ families. Those obstacles were imposed for the purpose of preventing Muslims from entering the United States.
CLASS ACTION ALLEGATIONS 344. The Individual Plaintiffs bring this action on their own behalf and on behalf of a class of all others similarly situated—that is, persons in the United States for whom the March 6 Order interferes with family reunification (the “Plaintiff Class”). The Plaintiff Class includes but is not limited to individuals in the United States who currently have an approved or pending petition to the United
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States government to be reunited with family members who are nationals of the Designated Countries, or who will soon file such petition.
345. The Plaintiff Class is so numerous that joinder is impracticable. According to the Annual Report of the Visa Office, in 2015, the last year for which data are available, the United States issued approximately 70,000 immigrant and non-immigrant visas to nationals from the six Designated Countries. The U.S. government previously estimated that between 60,000 and 100,000 people were affected by Section 3(c) of the January 27 Order.
346. A large number of such persons reside, or have recently resided, in Michigan. Many thousands of Arab-Americans in Michigan are originally from the Designated Countries. In fiscal year 2016, Michigan ranked fourth among states resettling refugees, receiving over 4,250.
347. The claims of the Plaintiff Class members share common issues of law, including but not limited to whether the March 6 Order violates their right to religious liberty, equal protection, freedom of speech and freedom of association under the First and Fifth Amendments to the United States Constitution.
348. The claims of the Plaintiff Class members share common issues of fact, including but not limited to whether the March 6 Order was adopted with the purpose of discriminating against Muslims and whether that Order is being or will be enforced so as to prevent Plaintiff Class members or their family members from
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obtaining visas and entering the United States from abroad or from re-entering the United States should they choose to leave the United States briefly, even though they would otherwise be admissible.
349. The claims of the Individual Plaintiffs are typical of the claims of members of the Plaintiff Class.
350. The Individual Plaintiffs will fairly and adequately protect the interests of the Plaintiff Class. The Individual Plaintiffs have no interest that is now or may be potentially antagonistic to the interests of the Plaintiff Class. The attorneys representing the Individual Plaintiffs include experienced civil rights attorneys and are considered able practitioners in federal constitutional litigation. These attorneys should be appointed as class counsel.
351. Defendants have acted, have threatened to act, and will act on grounds generally applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief appropriate to the class as a whole. The Plaintiff Class may therefore be properly certified under Fed. R. Civ. P. 23(b)(2).
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CLAIMS FOR RELIEF COUNT I
FIRST AMENDMENT ESTABLISHMENT CLAUSE 352. Plaintiffs adopt and incorporate by reference all prior paragraphs as though fully set forth herein. 353. The Establishment Clause of the First Amendment prohibits the federal government from preferring one religion over another. 354. The March 6 Order constitutes unlawful discrimination against Muslims, disfavoring and disadvantaging Islam as compared to other religions, and establishing a preference for one religion over another. Defendants have not pursued a course of neutrality with regard to different religious faiths. 355. Defendants’ statements and actions in implementing the Executive Orders have the effect of discriminating against Muslims, disfavoring and disadvantaging Islam, and establishing a preference for one religion over another. 356. References in the March 6 Order to non-religious justifications for the actions taken in that Order are transparently a pretext for the underlying aim to establish this preference. 357. Through the actions described in this Complaint, Defendants have violated the Establishment Clause. Defendants’ violation inflicts ongoing harm
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upon the Individual Plaintiffs and all those similarly situated, and on the organizational plaintiffs, their members and their clients.
358. The March 6 Order has the purpose and effect of inhibiting religion, and is neither justified by, nor closely fitted to, any compelling governmental interest.
COUNT II FIFTH AMENDMENT EQUAL PROTECTION 359. Plaintiffs adopt and incorporate by reference all prior paragraphs as though fully set forth herein. 360. The Due Process Clause of the Fifth Amendment to the U.S. Constitution guarantees the right to equal protection of the laws. 361. The equal protection requirement of the Due Process Clause requires strict scrutiny of governmental classifications that are based on religion. 362. The March 6 Order was substantially motivated by animus and a desire to discriminate on the basis of religion and has a disparate effect on persons of the disfavored religion. 363. The equal protection requirement of the Due Process Clause requires strict scrutiny of governmental restrictions on fundamental rights. 364. The March 6 Order burdens fundamental rights by restricting the ability of the Individual Plaintiffs and those similarly situated, and of the members
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and clients of the organizational Plaintiffs, to associate with their families and raise their children.
365. The March 6 Order was substantially motivated by animus and a desire to restrict the fundamental rights of Muslims, and has a disparate effect on the ability of Muslims versus non-Muslims to exercise their fundamental rights to associate with their families and raise their children.
366. The statements of President Trump and his advisors, as well as the other information set out in this Complaint, provide direct evidence that the March 6 Order was adopted for discriminatory reasons, and that the March 6 Order is not tailored to the asserted government goal of promoting national security.
367. The March 6 Order is not narrowly tailored to serve a compelling governmental interest, and thereby violates the equal protection requirement of the Due Process Clause.
368. For the same reasons, the March 6 Order is not rationally related to a legitimate government interest.
369. The March 6 Order, as well as Defendants’ statement regarding the order and their actions to implement it, discriminate against individuals based on their religion and restrict their fundamental rights without lawful justification.
370. Through the actions described in this Complaint, Defendants have violated the equal protection guarantee of the Fifth Amendment. Defendants’
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violation inflicts ongoing harm upon the Individual Plaintiffs and all those similarly situated, and on the organizational plaintiffs, their members and their clients.
COUNT III FIRST AMENDMENT FREEDOM OF SPEECH AND ASSOCIATION 371. Plaintiffs adopt and incorporate by reference all prior paragraphs as though fully set forth herein. 372. The First Amendment to the United States Constitution protects the marketplace of ideas; the right to receive information; the right to access social, political, esthetic, moral and other ideas and experiences; and the right to association. 373. Plaintiffs have a right to hear, speak, debate with, and associate with individuals whose entry into the United States is curtailed by the March 6 Order. 374. The March 6 Order restricts Plaintiffs’ ability to hear from, speak with, debate with, and associate with nationals of the Designated Countries, a restriction which is based on the identity, national origin and religion of the speaker. 375. The March 6 Order does not provide a facially legitimate and bona fide reason for denying entry into the United States to persons with whom Plaintiffs wish to speak, debate or associate, or whose ideas they wish to hear. The
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ostensibly neutral reasons for denying entry that are listed in the Executive Order were made in bad faith and as a pretext for denying entry of Muslims into the United States.
376. The March 6 Order conditions Plaintiffs’ ability to hear from, speak with, debate with or associate with nationals of the Designated Countries in faceto-face interactions within the United States on the ability of those nationals to obtain a case-by-case waiver under Section 3(c) of the March 6 Order .
377. Section 3(c) of the March 6 Order provides that a case-by-case waiver cannot be granted unless “the foreign national has demonstrated to the [CBP] 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.”
378. Section 3(c) of March 6 Order operates as a licensing scheme for speakers from the Designated Countries, but does not provide narrow, objective or definite standards for the issuance of case-by-case waivers. Section 3(c) of March 6 Order gives the government unfettered discretion to determine whose speech will be permitted and whose speech will not.
379. Section 3(c) of the March 6 Order operates as a content-based restriction on protected First Amendment activities because it permits or requires Defendants to evaluate the content of those activities to determine whether denying
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entry of a speaker from the Designated Countries would cause “undue hardship” and whether allowing Plaintiffs to hear from, speak with, debate with and associate with the speaker would “be in the national interest.”
380. Similarly, Section 3(c)(iii) of the March 6 Order , which provides that a case-by-case waiver “could be appropriate” where “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,” operates as a content-based restriction on protected First Amendment activities because it permits or requires Defendants to evaluate the content of those activities to determine whether they are “significant” enough to merit entry into the United States.
381. Section 3(c) of the March 6 Order permits or requires Defendants to engage in unconstitutional content-based and viewpoint-based discrimination because Defendants must determine whether denying entry of a speaker from the Designated Countries would cause “undue hardship” and whether allowing Plaintiffs to hear from, speak with, debate with and associate with the speaker would “be in the national interest.”
382. The March 6 Order does not provide a facially legitimate and bona fide reason for requiring nationals of the Designated Countries to seek a case-bycase waiver in order to enter the United States, thereby making it more difficult for
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Plaintiffs to hear from, speak with, debate with and associate with nationals of the Designated Countries. The ostensibly neutral reasons for requiring nationals of the Designated Countries to seek a case-by-case waiver that are listed in the Executive Order were made in bad faith and as a pretext for denying entry of Muslims into the United States.
383. Defendants’ violation of the First Amendment inflicts ongoing harm upon the Individual Plaintiffs and all those similarly situated, and on the organizational plaintiffs, their members and their clients.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs, request that this Honorable Court grant the following relief:
A. Issue a preliminary and permanent injunction enjoining Defendants, their officials, agents, employees, assigns and all persons acting in concert or participating with them from implementing or enforcing the March 6 Order;
B. Enter a judgment pursuant to 28 U.S.C. § 2201 declaring that the March 6 Order is unlawful and invalid;
C. Award Plaintiffs reasonable attorney’s fees and costs pursuant to the Equal Access to Justice Act or any other applicable law; and
D. Grant such other and further relief as the Court deems equitable, just and proper.
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Dated: March 16, 2017

Respectfully submitted,

Counsel for Arab American Civil Rights League

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

/s/ Rula Aoun Rula Aoun (P79119) 4917 Schaefer Rd. Dearborn, MI 48126 (313) 633-0231 rula@acrlmich.org

HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC /s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com

VIDA LAW GROUP, PLLC /s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com

Counsel for American Arab Chamber of Commerce
FARHAT & ASSOCIATES, PLLC /s/ Helal Farhat Helal Farhat (P64872) Counsel for the American Arab Chamber of Commerce 6053 Chase Rd. Dearborn, MI 48126 (313) 945-5100 hfarhat@saflegal.com

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Counsel for Arab American and Chaldean Council
/s/ Nida Samona Nida Samona (P45356) Attorney at Law Arab Chaldean Council (“ACC”) 363 W. Big Beaver Rd., Suite 300 Troy, MI 48084 (248) 559 1990 Nidas@myacc.org

Counsel for Hend Alshawish, Salim Alshawishm, Yusef Abdullah, Fahmi Jahaf, and Mohamed Alshega

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) Attorney for Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

/s/ Rula Aoun Rula Aoun (P79119) 4917 Schaefer Rd. Dearborn, MI 48126 (313) 633-0231 rula@acrlmich.org

HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC /s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com
/s/ Ali K. Hammoud Ali K. Hammoud (P73076) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 ah@hdalawgroup.com

VIDA LAW GROUP, PLLC /s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com

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Counsel for American Civil Liberties Union of Michigan, Arab American Studies Association, Adeeb Saleh, Sofana Bella, Hilal Alkateeb and S.A., a
minor through her Parent and Next Friend, Hilal Alkatteeb

/s/ Miriam Aukerman Miriam Aukerman (P63165) American Civil Liberties Union Fund of Michigan 1514 Wealthy SE, Suite 242 Grand Rapids, MI 49506 (616) 301-0930 maukerman@aclumich.org
/s/ Michael J. Steinberg Michael J. Steinberg (P43085) Daniel S. Korobkin (P72842) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org
/s/ Jason C. Raofield Jason C. Raofield (D.C. Bar #463877) Nishchay H. Maskay (D.C. Bar #998983) Frederick C. Benson (D.C. Bar #1033399) (application forthcoming) William J. Murray (D.C. Bar #1011089) (application forthcoming) Ingrid L. Price (D.C. Bar #1017436) (application forthcoming) Taylor M. Steffan (D.C. Bar #1045250) (application forthcoming) Covington & Burling LLP

/s/ Samuel R. Bagenstos Samuel R. Bagenstos (P73971) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 (734) 647-7584 sbagen@gmail.com
/s/ Margo Schlanger Margo Schlanger (N.Y. Bar #2704443 (3d Dept)) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 (734) 615-2618 margo.schlanger@gmail.com

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One City Center 850 10th Street, NW Washington, D.C. 20001 (202) 662-5072 Email: jraofield@cov.com
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs,

Case No. 2:17-cv-10310-VAR-SDD

v.

Hon. Victoria A. Roberts

DONALD TRUMP, et al.,

Mag. J. Stephanie D. Davis

Defendants.

NOTICE OF FILING SECOND AMENDED COMPLAINT WITH CONSENT OF DEFENDANTS
Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure and Local Rule 15.1 of the Eastern District of Michigan, Plaintiffs, by and through undersigned counsel, hereby file a Second Amended Complaint in this action. Counsel for Defendants, Briana Yuh of the U.S. Department of Justice, notified Plaintiffs’ counsel in writing, by email on March 15, 2017, that Defendants consent to the filing of the Second Amended Complaint.

2:17-cv-10310-VAR-SDD Doc # 41-1 Filed 03/16/17 Pg 2 of 5 Pg ID 566

Dated: March 16, 2017

Respectfully submitted,

Counsel for Arab American Civil Rights League

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

/s/ Rula Aoun Rula Aoun (P79119) 4917 Schaefer Rd. Dearborn, MI 48126 (313) 633-0231 rula@acrlmich.org

HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC /s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com

VIDA LAW GROUP, PLLC /s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com

Counsel for American Arab Chamber of Commerce
FARHAT & ASSOCIATES, PLLC /s/ Helal Farhat Helal Farhat (P64872) Counsel for the Arab American Chamber of Commerce 6053 Chase Rd. Dearborn, MI 48126 (313) 945-5100 hfarhat@saflegal.com

2

2:17-cv-10310-VAR-SDD Doc # 41-1 Filed 03/16/17 Pg 3 of 5 Pg ID 567

Counsel for Arab American and Chaldean Council
/s/ Nida Samona Nida Samona (P45356) Attorney at Law Arab Chaldean Council (“ACC”) 363 W. Big Beaver Rd., Suite 300 Troy, MI 48084 (248) 559 1990 Nidas@myacc.org

Counsel for Hend Alshawish, Salim Alshawishm, Yusef Abdullah, Fahmi Jahaf, and Mohamed Alshega

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) Attorney for Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

/s/ Rula Aoun Rula Aoun (P79119) 4917 Schaefer Rd. Dearborn, MI 48126 (313) 633-0231 rula@acrlmich.org

HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC /s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com
/s/ Ali K. Hammoud Ali K. Hammoud (P73076) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 ah@hdalawgroup.com

VIDA LAW GROUP, PLLC /s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com

3

2:17-cv-10310-VAR-SDD Doc # 41-1 Filed 03/16/17 Pg 4 of 5 Pg ID 568

Counsel for American Civil Liberties Union of Michigan, Arab American Studies Association, Adeeb Saleh, Sofana Bella, Hilal Alkateeb and S.A., a
minor through her Parent and Next Friend, Hilal Alkatteeb

/s/ Miriam Aukerman Miriam Aukerman (P63165) American Civil Liberties Union Fund of Michigan 1514 Wealthy SE, Suite 242 Grand Rapids, MI 49506 (616) 301-0930 maukerman@aclumich.org
/s/ Michael J. Steinberg Michael J. Steinberg (P43085) Daniel S. Korobkin (P72842) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org
/s/ Jason C. Raofield Jason C. Raofield (D.C. Bar #463877) Covington & Burling LLP One City Center 850 10th Street, NW Washington, D.C. 20001 (202) 662-5072 Email: jraofield@cov.com

/s/ Samuel R. Bagenstos Samuel R. Bagenstos (P73971) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 (734) 647-7584 sbagen@gmail.com
/s/ Margo Schlanger Margo Schlanger (N.Y. Bar #2704443 (3d Dept)) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 (734) 615-2618 margo.schlanger@gmail.com

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CERTIFICATE OF SERVICE This Notice, the Second Amended Complaint, the Declaration of Jason Raofield in Support of Plaintiffs’ Second Amended Complaint, and the exhibits thereto, were filed on March 16, 2017, via the Court’s ECF system, which provides notice to all counsel of record. Counsel for Defendants has declined to waive service for Defendants U.S. Citizenship and Immigration Services (“USCIS”), the Department of State, the Department of Justice, The Office of the Director of National Intelligence, Lori Scialabba (in her official capacity as Director of USCIS), Rex Tillerson (in his official capacity as Secretary of State), Jeff Sessions (in his official capacity as Attorney General), Michael Dempsey (in his official capacity as Acting Director of National Intelligence), and the United States of America. Therefore, service of the Second Amended Complaint, the Declaration of Jason Raofield in Support of Plaintiffs’ Second Amended Complaint, and the exhibits thereto, will be effected on Defendants pursuant to Fed. R. Civ. P. 4(i).
/s/ Jason C. Raofield Jason C. Raofield (D.C. Bar #463877)

2:17-cv-10310-VAR-SDD Doc # 41-2 Filed 03/16/17 Pg 1 of 30 Pg ID 570

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs,

Case No. 2:17-cv-10310-VAR-SDD

v.

Hon. Victoria A. Roberts

DONALD TRUMP, et al.,

Mag. J. Stephanie D. Davis

Defendants.

DECLARATION OF JASON RAOFIELD IN SUPPORT OF PLAINTIFFS’ SECOND AMENDED COMPLAINT

Pursuant to 28 U.S.C. § 1746(2), I, Jason Raofield, hereby declare as follows:

1.

I am a Partner at the firm of Covington & Burling and serve as

counsel to the American Civil Liberties Union of Michigan, Arab American

Studies Association, Adeeb Saleh, Sofana Bella, Hilal Alkateeb and S.A.

2.

I respectfully submit this declaration in support of Plaintiffs’ Second

Amended Complaint.

3.

Attached hereto as Exhibit A is a true and correct copy of a printout

of Executive Order 13769, dated January 27, 2017 and entitled “Protecting the

Nation from Foreign Terrorist Entry into the United States.”

4.

Attached hereto as Exhibit B is a true and correct copy of a printout

of Executive Order 13780, issued March 6, 2017, effective March 16, 2017, and

2:17-cv-10310-VAR-SDD Doc # 41-2 Filed 03/16/17 Pg 2 of 30 Pg ID 571

entitled “Protecting the Nation from Foreign Terrorist Entry into the United

States.”

5.

Attached hereto as Exhibit C is a true and correct copy of a printout

of the Department of Homeland Security (“DHS”) Q&A dated March 6, 2017 and

entitled “Department of Homeland Security, Q&A: Protecting the Nation from

Foreign Terrorist Entry to the United States,” available at https://goo.gl/zFtFg8.

I declare under penalty of perjury that the foregoing is true and correct.
Executed this 16th day of March, 2017.
/s/ Jason C. Raofield Jason C. Raofield (D.C. Bar #463877) Covington & Burling LLP One CityCenter 850 10th Street, NW Washington, D.C. 20001 (202) 662-5072 Email: jraofield@cov.com

2

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RAOFIELD DECLARATION EXHIBIT A

2:17-cv-10310-VAR-SDD Doc # 41-2 Filed 03/16/17 Pg 4 of 30 Pg ID 573

Federal Register Vol. 82, No. 20 Wednesday, February 1, 2017

Presidential Documents

8977

Title 3—
The President

Executive Order 13769 of January 27, 2017
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-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

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Federal Register / Vol. 82, No. 20 / Wednesday, February 1, 2017 / Presidential Documents
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).
(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.
(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C–2 visas for travel to the United Nations, and G–1, G–2, G–3, and G–4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.
(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.
(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.
(h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order.
Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm 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

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used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.
(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date of this order.
Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.
(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.
(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.
(d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.
(e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest— including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship—and it would not pose a risk to the security or welfare of the United States.

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(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 entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.
(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section. The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order. Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational.
Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.
(b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant 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:

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(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 terrorismrelated 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 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.

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(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.

[FR Doc. 2017–02281 Filed 1–31–17; 11:15 am] Billing code 3295–F7–P

THE WHITE HOUSE, January 27, 2017.

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RAOFIELD DECLARATION EXHIBIT B

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Title 3—
The President

Executive Order 13780 of March 6, 2017
Protecting the Nation From Foreign Terrorist Entry Into the United States

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the Nation from terrorist activities by foreign nationals admitted to the United States, it is hereby ordered as follows:
Section 1. Policy and Purpose. (a) It is the policy of the United States to protect its citizens from terrorist attacks, including those committed by foreign nationals. The screening and vetting protocols and procedures associated with the visa-issuance process and the United States Refugee Admissions Program (USRAP) play a crucial role in detecting foreign nationals who may commit, aid, or support acts of terrorism and in preventing those individuals from entering the United States. It is therefore the policy of the United States to improve the screening and vetting protocols and procedures associated with the visa-issuance process and the USRAP.
(b) On January 27, 2017, to implement this policy, I issued Executive Order 13769 (Protecting the Nation from Foreign Terrorist Entry into the United States).
(i) Among other actions, Executive Order 13769 suspended for 90 days the entry of certain aliens from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. These are countries that had already been identified as presenting heightened concerns about terrorism and travel to the United States. Specifically, the suspension applied to countries referred to in, or designated under, section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), in which Congress restricted use of the Visa Waiver Program for nationals of, and aliens recently present in, (A) Iraq or Syria, (B) any country designated by the Secretary of State as a state sponsor of terrorism (currently Iran, Syria, and Sudan), and (C) any other country designated as a country of concern by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence. In 2016, the Secretary of Homeland Security designated Libya, Somalia, and Yemen as additional countries of concern for travel purposes, based on consideration of three statutory factors related to terrorism and national security: ‘‘(I) whether the 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.’’

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8 U.S.C. 1182(f). Under these authorities, I determined that, for a brief period of 90 days, while existing screening and vetting procedures were under review, the entry into the United States of certain aliens from the seven identified countries—each afflicted by terrorism in a manner that compromised the ability of the United States to rely on normal decision-making procedures about travel to the United States—would be detrimental to the interests of the United States. Nonetheless, I permitted the Secretary of State and the Secretary of Homeland Security to grant case-by-case waivers when they determined that it was in the national interest to do so.
(iii) Executive Order 13769 also suspended the USRAP for 120 days. Terrorist groups have sought to infiltrate several nations through refugee programs. Accordingly, I temporarily suspended the USRAP pending a review of our procedures for screening and vetting refugees. Nonetheless, I permitted the Secretary of State and the Secretary of Homeland Security to jointly grant case-by-case waivers when they determined that it was in the national interest to do so.
(iv) Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities—whoever they are and wherever they reside—to avail themselves of the USRAP in light of their particular challenges and circumstances.
(c) The implementation of Executive Order 13769 has been delayed by litigation. Most significantly, enforcement of critical provisions of that order has been temporarily halted by court orders that apply nationwide and extend even to foreign nationals with no prior or substantial connection to the United States. On February 9, 2017, the United States Court of Appeals for the Ninth Circuit declined to stay or narrow one such order pending the outcome of further judicial proceedings, while noting that the ‘‘political branches are far better equipped to make appropriate distinctions’’ about who should be covered by a suspension of entry or of refugee admissions.
(d) Nationals from the countries previously identified under section 217(a)(12) of the INA warrant additional scrutiny in connection with our immigration policies because the conditions in these countries present heightened threats. Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government’s willingness or ability to share or validate important information about individuals seeking to travel to the United States. Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States. Finally, once foreign nationals from these countries are admitted to the United States, it is often difficult to remove them, because many of these countries typically delay issuing, or refuse to issue, travel documents.
(e) The following are brief descriptions, taken in part from the Department of State’s Country Reports on Terrorism 2015 (June 2016), of some of the conditions in six of the previously designated countries that demonstrate why their nationals continue to present heightened risks to the security of the United States:
(i) Iran. Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq. Iran has also been linked to support

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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 exploited these conditions to expand their presence in the country. The Libyan government provides some cooperation with the United States’ counterterrorism efforts, but it is unable to secure thousands of miles of its land and maritime borders, enabling the illicit flow of weapons, migrants, and foreign terrorist fighters. The United States Embassy in Libya suspended its operations in 2014.
(iii) Somalia. Portions of Somalia have been terrorist safe havens. AlShabaab, an al-Qa’ida-affiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries. Somalia has porous borders, and most countries do not recognize Somali identity documents. The Somali government cooperates with the United States in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists.
(iv) Sudan. Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas. Historically, Sudan provided safe havens for al-Qa’ida and other terrorist groups to meet and train. Although Sudan’s support to al-Qa’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 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

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reduced due to the efforts and sacrifices of the Iraqi government and armed forces, working along with a United States-led coalition, the ongoing conflict has impacted the Iraqi government’s capacity to secure its borders and to identify fraudulent travel documents. Nevertheless, the close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combat ISIS justify different treatment for Iraq. In particular, those Iraqi government forces that have fought to regain more than half of the territory previously dominated by ISIS have shown steadfast determination and earned enduring respect as they battle an armed group that is the common enemy of Iraq and the United States. In addition, since Executive Order 13769 was issued, the Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal. Decisions about issuance of visas or granting admission to 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-tree-lighting ceremony in Portland, Oregon. The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.
(i) Given the foregoing, the entry into the United States of foreign nationals who may commit, aid, or support acts of terrorism remains a matter of grave concern. In light of the Ninth Circuit’s observation that the political branches are better suited to determine the appropriate scope of any suspensions than are the courts, and in order to avoid spending additional time pursuing litigation, I am revoking Executive Order 13769 and replacing it with this order, which expressly excludes from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens.
Sec. 2. Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or 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

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shall provide a copy of the report to the Secretary of State, the Attorney General, and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States. I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.
(d) Upon submission of the report described in subsection (b) of this section regarding the information needed from each country for adjudications, the Secretary of State shall request that all foreign governments that do not supply such information regarding their nationals begin providing it within 50 days of notification.
(e) After the period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means. The Secretary of State, the Attorney General, or the Secretary of Homeland Security may also submit to the President the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States.
(f) At any point after the submission of the list described in subsection (e) of this section, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, may submit to the President the names of any additional countries recommended for similar treatment, as well as the names of any countries that they recommend should be removed from the scope of a proclamation described in subsection (e) of this section.
(g) The Secretary of State and the Secretary of Homeland Security shall submit to the President a joint report on the progress in implementing this order within 60 days of the effective date of this order, a second report within 90 days of the effective date of this order, a third report within 120 days of the effective date of this order, and a fourth report within 150 days of the effective date of this order. Sec. 3. Scope and Implementation of Suspension.
(a) Scope. Subject to the exceptions set forth in subsection (b) of this section and any waiver under subsection (c) of this section, the suspension of entry pursuant to section 2 of this order shall apply only to foreign nationals of the designated countries who:
(i) are outside the United States on the effective date of this order;
(ii) did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and
(iii) do not have a valid visa on the effective date of this order. (b) Exceptions. The suspension of entry pursuant to section 2 of this order shall not apply to: (i) any lawful permanent resident of the United States;

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(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 nondesignated country;
(v) any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C–2 visa for travel to the United Nations, or G–1, G–2, G–3, or G–4 visa; or
(vi) any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
(c) Waivers. Notwithstanding the suspension of entry pursuant to section 2 of this order, a consular officer, or, as appropriate, the Commissioner, U.S. Customs and Border Protection (CBP), or the Commissioner’s delegee, may, in the consular officer’s or the CBP official’s discretion, decide on a case-by-case basis to authorize the issuance of a visa to, or to permit the entry of, a foreign national for whom entry is otherwise suspended if the foreign national has demonstrated to the officer’s satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest. Unless otherwise specified by the Secretary of Homeland Security, any waiver issued by a consular officer as part of the visa issuance process will be effective both for the issuance of a visa and any subsequent entry on that visa, but will leave all other requirements for admission or entry unchanged. Case-by-case waivers could be appropriate in circumstances such as the following:
(i) the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the effective date of this order, seeks to reenter the United States to resume that activity, and the denial of reentry during the suspension period would impair that activity;
(ii) the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity;
(iii) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;
(iv) the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;
(v) the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
(vi) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government;
(vii) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling

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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 otherwise threaten the national security or public safety of the United States.
Sec. 5. Implementing Uniform Screening and Vetting Standards for All Immigration Programs. (a) The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence shall implement a program, as part of the process for adjudications, to identify individuals who seek to enter the United States on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group or class of people within the United States, or who present a risk of causing harm subsequent to their entry. This program shall include the development of a uniform baseline for screening and vetting standards and procedures, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that applicants are who they claim to be; a mechanism to assess whether applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United States; and any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility or grounds for the denial of other immigration benefits.
(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Attorney General, and the Director of National Intelligence, shall submit to the President an initial report on the progress of the program described in subsection (a) of this section within 60 days of the effective date of this order, a second report within 100 days of the effective date of this order, and a third report within 200 days of the effective date of this order. Sec. 6. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend travel of refugees into the United States under the USRAP, and the Secretary of Homeland Security shall suspend decisions on applications for refugee status, for 120 days after the effective date of this order, subject to waivers pursuant to subsection (c) of this section. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review 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

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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 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 diplomatic-type visa, North Atlantic Treaty Organization visa, C–2 visa for travel to the United Nations, or G–1, G–2, G–3, or G–4 visa; traveling for purposes related to an international organization designated under the IOIA; or traveling for purposes of conducting meetings or business with the United States Government.

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(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 terrorismrelated activity, affiliation with or provision of material support to a terrorism-related organization, or any other national-security-related reasons;
(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and who have engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States;
(iii) information regarding the number and types of acts of gender-based violence against women, including so-called ‘‘honor killings,’’ in the United States by foreign nationals; and
(iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security or the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.
(b) The Secretary of Homeland Security shall release the initial report under subsection (a) of this section within 180 days of the effective date of this order and 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).

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(c) No immigrant or nonimmigrant visa issued before the effective date of this order shall be revoked pursuant to this order.
(d) Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry. Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.
(e) This order shall not apply to an individual who has been granted asylum, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture. Nothing in this order shall be construed to limit the ability of an individual to seek asylum, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.
Sec. 13. Revocation. Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order.
Sec. 14. Effective Date. This order is effective at 12:01 a.m., eastern daylight time on March 16, 2017.
Sec. 15. Severability. (a) If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other persons or circumstances shall not be affected thereby.
(b) If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements.
Sec. 16. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

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(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.

[FR Doc. 2017–04837 Filed 3–8–17; 11:15 am] Billing code 3295–F7–P

THE WHITE HOUSE, March 6, 2017.

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RAOFIELD DECLARATION EXHIBIT C

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Q&A: Protecting the Nation From Foreign Terrorist Entry To The United States

Release Date: March 6, 2017

March 6, 2017 11:30 a.m. EST Office of Public Affairs Contact: 202-282-8010

Q1. Who is subject to the suspension of entry under the Executive Order
Per the Executive Order, foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen, who are outside the United States and who did not have a valid visa at 5 p.m. Eastern Standard Time on January 27, 2017, and do not have a valid visa on the effective date of this order are not eligible to enter the United States while the temporary suspension remains in effect. Thus any individual who had a valid visa either on January 27, 2017 (prior to 5:00 PM) or holds a valid visa on the effective date of the Executive Order is not barred from seeking entry.

Q2. Will “in-transit” travelers within the scope of the Executive Order be
denied entry into the United States and returned to their country of origin
Those individuals who are traveling on valid visas and arrive at a U.S. port of entry will still be permitted to seek entry into the United States. All foreign nationals traveling with a visa must continue to satisfy all requirements for entry, including demonstrating that they are admissible. Additional information on applying for admission to the United States is available on CBP.gov.

Q3. I am a national from one of the six affected countries currently overseas
and in possession of a valid visa, but I have no prior travel to the United States.
Can I travel to the United States
Per the Executive Order, foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen who have valid visas will not be affected by this Executive Order. No visas will be revoked solely based on this Executive Order.

Q4. I am presently in the United States in possession of a valid single entry visa
but I am a national of one of the six impacted countries. Can I travel abroad
and return to the United States
Regardless of the Executive Order, your visa is not valid for multiple entries into the Unites States. While the Executive Order does not apply to those within the United States and your travel abroad is not limited, a valid visa or other document permitting you to travel to and seek admission to the United States is still required for any subsequent entry to the United States.

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Q5. I am presently in the United States in possession of a valid multiple entry

visa but am a national of one of the six affected countries, can I travel abroad

and return to the United States

Yes. Individuals within the United States with valid multiple entry visas on the effective date of the order are eligible for travel to and from the United States, provided the visa remains valid and the traveler is otherwise admissible. All foreign nationals traveling with a visa must satisfy all admissibility requirements for entry. Additional information on applying for admission to the United States is available on CBP.gov.

Q6. I am from one of the six countries, currently in the United States in
possession of a valid visa and have planned overseas travel. My visa will
expire while I am overseas, can I return to the United States
Travelers must have a valid visa to travel to the United States, regardless of the Executive Order. Travelers who do not have a valid visa due to its expiration while abroad must obtain a new valid visa prior to returning to the United States.

Q7. Will the Department of Homeland Security (DHS) and the Department of State (DOS) be revoking the visas of persons ineligible to travel under the revised Executive Order
Visas will not be revoked solely as a result of the Executive Order. The Department of State has broad authority under Section 221(i) of the Immigration and Nationality Act to revoke visas.

Q8. What is the process for overseas travelers affected by the Executive Order to re uest a waiver
Waivers for overseas travelers without a valid U.S. visa will be adjudicated by the Department of State in conjunction with a visa application.

Q9. How are returning refugees and asylees affected by the Executive Order
Returning refugees and asylees, i.e., individuals who have already been granted asylum or refugee status in the United States, are explicitly excepted from this Executive Order. As such, they may continue to travel consistent with existing requirements.

Q10. Are first-time arrival refugees with valid /travel documents allowed to
travel to the United States
Yes, but only refugees, regardless of nationality, whose travel was already formally scheduled by the Department of State, are permitted to travel to the United States and seek admission. The Department of State will have additional information.

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Q11. Will unaccompanied minors within the scope of the Executive Order be

denied boarding and or denied entry into the United States

The Executive Order applies to those who do not have valid visas. Any individuals, including children, who seek entry to the United States must have a valid visa (or other approved travel document) before travel to the United States. The Secretary of State may issue a waiver on a caseby-case basis when in the national interest of the United States. With such a waiver, a visa may be issued.

Q12. Is DHS complying with all court orders
DHS is complying, and will continue to comply, with all court orders in effect.

Q13. When will the Executive Order be implemented
The Executive Order is effective at 12:01 A.M., Eastern Standard Time, on March 16, 2017.

Q14. Will the Executive Order impact Trusted Traveler Program membership
No. Currently, CBP does not have reciprocal agreements for a Trusted Traveler Program with any of the countries designated in the Executive Order.

Q15. When will CBP issue guidance to both the field and airlines regarding the Executive Order
CBP will issue guidance and contact stakeholders to ensure timely implementation consistent with the terms of the Executive Order.

Q16. Will first-time arrivals with valid immigrant visas be allowed to travel to the U.S.
Yes. Individuals holding valid visas on the effective date of the Executive Order or on January 27, 2017 prior to 5:00 PM do not fall within the scope of the Order.

Q17. Does this affect travelers at all ports of entry
Yes, this Executive Order applies to travelers who are applying for entry into the United States at any port of entry—air, land, or sea—and includes preclearance locations.

Q18. What does granting a waiver to the Executive Order mean How are
waivers applied to individual cases
Per the Executive Order, the Departments of Homeland Security and State can review individual cases and grant waivers on a case-by-case basis if a foreign national demonstrates that his or her entry into the United States is in the national interest, will not pose a threat to national security, and that denying entry during the suspension period will cause undue hardship.

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Q19. Does “from one of the six countries” mean citizen, national, or born in

The Executive Order applies to both nationals and citizens of the six countries.

Q20. How does the lawsuit/stay affect DHS operations in implementing this Executive Order
Questions regarding the application of specific federal court orders should be directed to the Department of Justice.

Q21. Will nationals of the six countries with valid green cards (lawful permanent residents of the United States) be allowed to return to the United States
Per the Executive Order, the suspension of entry does not apply to lawful permanent residents of the United States.

Q22. Can a dual national who holds nationality with one of the six designated countries traveling with a passport from an unrestricted country travel to the United States
The Executive Order exempts from its scope any dual national of one of the six countries when the individual is traveling on a passport issued by a different non-designated country.

Q23. Can a dual national who holds nationality with one of the six designated countries and is currently overseas, apply for an immigrant or nonimmigrant visa to the United States
Please contact the Department of State for information about how the Executive Order applies to visa applicants.

Q24. Are international students, exchange visitors, and their dependents from
the six countries (such as F, M, or J visa holders) included in the Executive
Order What kind of guidance is being given to foreign students from these
countries legally in the United States
The Executive Order does not apply to individuals who are within the United States on the effective date of the Order or to those individuals who hold a valid visa. Visas which were provisionally revoked solely as a result of the enforcement of Executive Order 13769 are valid for purposes of administering this Executive Order. Individuals holding valid F, M, or J visas may continue to travel to the United States on those visas if they are otherwise valid.

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Please contact the State Department for information about how the Executive Order applies to visa

applicants.

Q25. What happens to international students, exchange visitors or their
dependents from the six countries, such as F, M or J visa holders if their visa
expires while the Executive Order is in place and they have to depart the
country
The Executive Order does not affect F, M, or J visa holders if they currently have a valid visa on the effective date or held a valid visa on January 27, 2017 prior to the issuance of the Executive Order. With that said, travelers must have a valid visa to travel to the United States, regardless of the Executive Order. Travelers whose visa expires after the effective date of the Executive Order must obtain a new, valid visa to return to the United States.

Q26. Can U.S. Citizenship and Immigration Services (USCIS) continue refugee
interviews
The Departments of Homeland Security and State will conduct interviews as appropriate and consistent with the Executive Order. However, the Executive Order suspends decisions on applications for refugee status, unless the Secretary of Homeland Security and the Secretary of State jointly determine, on a case-by-case basis, that the entry of an individual as a refugee is in the national interest and would not pose a threat to the security or welfare of the United States.

Q27. Can the exception for refugee admission be used for Refugee/Asylee
Relative Petitions (Form I-730) cases where a family member is re uesting a
beneficiary follow to join
No. Individuals who already have valid visas or travel documents that permit them to travel to the United States are exempt from the Executive Order. To the extent that an individual does not yet have such documents, please contact the Department of State.

Q28. Does the Executive Order apply to those currently being adjudicated for
naturalization or adjustment of status
USCIS will continue to adjudicate Applications for Naturalization (Form N-400) and Applications to Register Permanent Residence or Adjust Status (Form I-485) and grant citizenship consistent with existing practices.

Q29. Will landed immigrants of Canada affected by the Executive Order be eligible for entry to the United States
Landed immigrants of Canada who hold passports from one of the six countries are eligible to apply for a visa, and coordinate a waiver, at a location within Canada.

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Q30. Has CBP issued clear guidance to CBP officers at ports of entry regarding

the Executive Order

CBP has and will continue to issue any needed guidance to the field with respect to this Executive Order.

Q31. What coordination is being done between CBP and the carriers
CBP has been and will remain in continuous communication with the airlines through CBP regional carrier liaisons. In addition, CBP will hold executive level calls with airlines in order to provide guidance, answer questions, and address concerns.

Q32. What additional screening will nationals of restricted countries (as well as any visa applications) undergo as a result of the Executive Order
In making admission and visa eligibility determinations, DHS and DOS will continue to apply all appropriate security vetting procedures.

Q33. Why is a temporary suspension warranted
The Executive Order signed on March 6, 2017, allows for the proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals. The Executive Order protects the United States from countries compromised by terrorism and ensures a more rigorous vetting process. Protecting the American people is the highest priority of our Government and this Department.
Congress and the Obama Administration designated these six countries as countries of concern due to the national security risks associated with their instability and the prevalence of terrorist fighters in their territories.The conditions in the six designated countries present a recognized threat, warranting additional scrutiny of their nationals seeking to travel to and enter the United States. In order to ensure that the U.S. Government can conduct a thorough and comprehensive analysis of the national security risks, the Executive Order imposes a 90-day suspension on entry to the United States of nationals of those countries.
Based on commitments from the Government of Iraq, the suspension of entry in this Executive Order will not apply to nationals of Iraq. Iraq has taken steps to increase their cooperation with the United States in the vetting of Iraqi nationals and as such it was determined that a temporary suspension is not warranted.
DHS will faithfully execute the immigration laws and the President’s Executive Order, and will treat all of those we encounter humanely and with professionalism.

Q34. Why is a suspension of the refugee program warranted
Some of those who have entered the United States as refugees have also proved to be threats to our national security. For example, in October 2014, an individual admitted to the United States as a refugee from Somalia, and who later became a naturalized U.S. citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction in connection with a plot to set off a bomb at a Christmas tree-lighting ceremony in Portland, Oregon. The Federal Bureau of

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Investigation has reported that approximately 300 persons who entered the United States as

refugees are currently the subjects of counterterrorism investigations.

Q35. How were the six countries designated in the Executive Order selected
The six countries, Iran, Libya, Somalia, Sudan, Syria, and Yemen, had already been identified as presenting concerns about terrorism and travel to the United States.Specifically, the suspension applies to countries referred to in, or designated under—except Iraq—section 217(a)(12) of the INA, 8 U.S.C. § 1187(a)(12).In that provision Congress restricted use of the Visa Waiver Program by dual nationals of, and aliens recently present in, (A) Syria and Iraq, (B) any country designated by the Secretary of State as a state sponsor of terrorism (currently Iran, Syria, and Sudan), and (C) any other country designated as a country of concern by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence.In 2016, the former Secretary of Homeland Security designated Libya, Somalia, and Yemen as additional countries of concern regarding aliens recently present in those countries.
For the purposes of this Executive Order, although Iraq has been previously identified, based on commitments from the Government of Iraq, the suspension of entry in this Executive Order will not apply to nationals of Iraq. However, those who are dual nationals of Iraq and aliens recently present in Iraq continue to have restricted use of the Visa Waiver Program.
On the basis of negotiations that have taken place between the Government of Iraq and the U.S. Department of State in the last month, Iraq will increase cooperation with the U.S. Government on the vetting of its citizens applying for a visa to travel to the United States.As such it was determined that a temporary suspension with respect to nationals of Iraq is not warranted at this time.

Q36. Why was Ira treated differently in this Executive Order
The close cooperative relationship between the United States and the democratically-elected Iraqi government, the strong U.S. diplomatic presence in Iraq, the significant presence of U.S. forces in Iraq, and Iraq’s commitment to combat ISIS justify different treatment.In particular, those Iraqi government forces that have fought to regain more than half of the territory previously dominated by ISIS have earned special status.In addition, since Executive Order 13769 was issued, the Iraqi government has expressly undertaken steps to provide additional information about its citizens for purposes of our immigration decisions.Accordingly, it is no longer necessary to include Iraq in the temporary suspension applicable to the other six countries, but visa applications and applications for admission to the United States by Iraqi nationals will be subjected to additional scrutiny to determine if they have connections with ISIS or other terrorist organizations.

Q37. Are Ira i nationals subject to the Executive Order Will they re uire a
waiver to travel to the United States
This Executive Order does not presently suspend the entry of nationals of Iraq. However, all travelers must have a valid travel document in order to travel to the United States. Admissibility will be determined by a CBP officer upon arrival at a Port of Entry. Please contact the Department of State for information related to visa eligibility and application.
Topics: Border Security, Homeland Security Enterprise, Immigration Enforcement Keywords: immigration, immigration enforcement
Last Published Date: March 6, 2017

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> News > Fact Sheets > Q&A: Protecting the Nation From Foreign Terrorist Entry To The United States

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 2:17-cv-10310-VAR-SDD Doc # 42 Filed 03/16/17 Pg 1 of 6 Pg ID 600

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs,

Case No. 2:17-cv-10310-VAR-SDD

v.

Hon. Victoria A. Roberts

DONALD TRUMP, et al.,

Mag. J. Stephanie D. Davis

Defendants.

NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), Plaintiffs SAMIR ALMASMARI, SABAH ALMASMARY, HANA ALMASMARI, MOUNIRA ATIK, WALID JAMMOUL, NAGI ALGAHAIM, KOKAB ALGAZALI, SHAIKA SHAGERA, YUSRA AL SOUFI, HASAN AL-AHMED, SALHA AL-TALAQANI, and ABUBAKER ABBASS voluntarily dismiss their claims in this action without prejudice, based on Section 13 of Executive Order 13780, which revokes Executive Order 13769 as of today’s date; Section 3(b)(i) of Executive Order 13780, which states that the provisions of Section 2 of Executive Order 13780 “shall not apply to . . . any lawful permanent resident of the United States”; Section 3(a) of Executive Order 13780, which exempts foreign nationals of the designated countries who are in the United States on the effective date of that order or who had a valid visa at 5

2:17-cv-10310-VAR-SDD Doc # 42 Filed 03/16/17 Pg 2 of 6 Pg ID 601
p.m., eastern standard time on January 27, 2017 or on March 16, 2017; and public representations by the United States Government and its officials and agencies that Executive Order 13780 shall not restrict the right of lawful permanent residents to enter the United States or the right of individuals who had valid visas on either January 27, 2017 or March 16, 2017, to enter the United States.
In the event that Executive Order 13780 is applied in a manner such that it does affect the rights of those Plaintiffs whose claims are being dismissed pursuant to this Notice, those Plaintiffs reserve the right to rejoin this litigation.

Dated: March 16, 2017

Respectfully submitted,

Counsel for Arab American Civil Rights League

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

/s/ Rula Aoun Rula Aoun (P79119) 4917 Schaefer Rd. Dearborn, MI 48126 (313) 633-0231 rula@acrlmich.org

HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC /s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com

VIDA LAW GROUP, PLLC /s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004

2

2:17-cv-10310-VAR-SDD Doc # 42 Filed 03/16/17 Pg 3 of 6 Pg ID 602

Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com

Counsel for American Arab Chamber of Commerce
FARHAT & ASSOCIATES, PLLC /s/ Helal Farhat Helal Farhat (P64872) Counsel for the Arab American Chamber of Commerce 6053 Chase Rd. Dearborn, MI 48126 (313) 945-5100 hfarhat@saflegal.com

Counsel for Arab American and Chaldean Council
/s/ Nida Samona Nida Samona (P45356) Attorney at Law Arab Chaldean Council (“ACC”) 363 W. Big Beaver Rd., Suite 300 Troy, MI 48084 (248) 559 1990 Nidas@myacc.org

Counsel for Hend Alshawish, Salim Alshawishm, Yusef Abdullah, Fahmi Jahaf, and Mohamed Alshega

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) Attorney for Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

/s/ Rula Aoun Rula Aoun (P79119) 4917 Schaefer Rd. Dearborn, MI 48126 (313) 633-0231 rula@acrlmich.org

3

2:17-cv-10310-VAR-SDD Doc # 42 Filed 03/16/17 Pg 4 of 6 Pg ID 603

HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC /s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com
/s/ Ali K. Hammoud Ali K. Hammoud (P73076) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 ah@hdalawgroup.com

VIDA LAW GROUP, PLLC /s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com

Counsel for American Civil Liberties Union of Michigan, Arab American Studies Association, Adeeb Saleh, Sofana Bella, Hilal Alkateeb and S.A., a
minor through her Parent and Next Friend, Hilal Alkatteeb

/s/ Miriam Aukerman Miriam Aukerman (P63165) American Civil Liberties Union Fund of Michigan 1514 Wealthy SE, Suite 242 Grand Rapids, MI 49506 (616) 301-0930 maukerman@aclumich.org
/s/ Michael J. Steinberg Michael J. Steinberg (P43085) Daniel S. Korobkin (P72842) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue
4

/s/ Samuel R. Bagenstos Samuel R. Bagenstos (P73971) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 (734) 647-7584 sbagen@gmail.com
/s/ Margo Schlanger Margo Schlanger (N.Y. Bar #2704443 (3d Dept)) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street

2:17-cv-10310-VAR-SDD Doc # 42 Filed 03/16/17 Pg 5 of 6 Pg ID 604

Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org
/s/ Jason C. Raofield Jason C. Raofield (D.C. Bar #463877) Covington & Burling LLP One City Center 850 10th Street, NW Washington, D.C. 20001 (202) 662-5072 Email: jraofield@cov.com

Ann Arbor, Michigan 48109 (734) 615-2618 margo.schlanger@gmail.com

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CERTIFICATE OF SERVICE This Notice was filed on March 16, 2017, via the Court’s ECF system, which provides notice to all counsel of record.
/s/ Jason C. Raofield Jason C. Raofield (D.C. Bar #463877)

 
 2:17-cv-10310-VAR-SDD Doc # 57 Filed 03/20/17 Pg 1 of 7 Pg ID 894

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs, v.

Civil No. 17-10310 Hon. VICTORIA A. ROBERTS Mag. Judge Stephanie D. Davis

DONALD TRUMP, et al.,

Defendants. ____________________________________/

DEFENDANTS’ RENEWED MOTION TO VACATE PERMANENT INJUNCTION

Defendants hereby respectfully move this Court under Federal Rule of Civil

Procedure 60(b) to dissolve its prior order permanently enjoining the Government

from applying Executive Order 13,769, signed on January 27, 2017, and titled

“Protecting the Nation from Foreign Terrorist Entry into the United States,”82 Fed.

Reg. 8977 (Feb. 1, 2017) (hereinafter, “Old EO”), to Lawful Permanent Residents

(“LPRs”).1 The injunction should be vacated because of defects in its issuance and

because it has been rendered moot by the Executive Order 13,780, signed on

March 6, 2017, and titled “Protection the Nation from Foreign Terrorist Entry into

1 Pursuant to E.D. Mich. L.R. 7.1(a), on March 15, 2017, Defendants’ counsel e-mailed Plaintiffs’ counsel seeking concurrence in this motion. Plaintiffs do not concur.

2:17-cv-10310-VAR-SDD Doc # 57 Filed 03/20/17 Pg 2 of 7 Pg ID 895
the United States,” 82 Fed. Reg. 13209 (Mar. 9, 2017) (hereinafter, “the New EO”). In light of the New EO, which took effect on March 16, 2017, rescinding the Old EO and explicitly exempting LPRs from its scope, this Court’s February 2, 2017 Permanent Injunction Order serves no purpose. See Defs.’ Notice of Filing of Executive Order, ECF No. 39. This Court’s grant of injunctive relief was premised on the existence of the Old EO and on alleged confusion regarding its application to LPRs returning to the United States after travel abroad. Because that premise was and is incorrect, the Old EO is no longer in effect, and the New EO explicitly excludes LPRs from its scope, “[t]he foundation upon which the claim for injunctive relief was built has crumbled,” and there is “[n]o basis in federal law . . . for the injunctive relief imposed.” Sweeton v. Brown, 27 F.3d 1162, 1164 (6th Cir. 1994) (en banc). Accordingly, relief is appropriate under Rule 60(b)(5) & (6).2
ARGUMENT First, as discussed in Defendants’ Motion to Dissolve Injunction and Amend Order, along with its associated filings, (ECF Nos. 15, 22, 33, and 39), this Court’s
2 On March 16, 2017, Plaintiffs filed a Notice Regarding Defendants’ Motion to Dissolve Injunction (ECF No. 45). Plaintiffs’ “Notice” appears to be a Motion styled as a Notice, which was preemptively filed after Defendants sought concurrence from Plaintiffs for the filing of this motion on March 15, 2017. Plaintiffs’ Notice Regarding Defendants’ Motion to Dissolve Injunction (ECF No. 45) should accordingly be treated as a preemptive Sur-reply to Defendants’ Motion to Dissolve Injunction and Amend Order (ECF No. 15).
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permanent injunction should be vacated because subsequent events have confirmed that its premise was incorrect and it was therefore unnecessary. During our telephonic conference and prior to the Court’s issuance of the injunction, Defendants offered uncontroverted evidence that the Old EO was not applicable to (and was not being applied to) LPRs. In the month since the issuance of this Court’s injunction, that evidence remains uncontroverted and, indeed, has been confirmed. There simply was and is no controversy between the parties as to the application of the Old EO to LPRs. Because this Court did not “set forth [any] reasons for its decision” that could justify the injunction absent the need for relief to LPRs, Fed. R. Civ. P. 65(d), vacating the permanent injunction is appropriate.
Second, the Court’s order for a permanent injunction should be dissolved under Rule 60(b)(5) because it was based on the Court’s interpretation of the Old EO, which is no longer in effect and has already been revoked. See ECF No. 39-1 at 19 (New Executive Order §§ 13, 14). The Sixth Circuit has recognized:
Injunctions are one of the law’s most powerful weapons. Ongoing injunctions should be dissolved when they no longer meet the requirements of equity. The law changes and clarifies itself over time. Neither the doctrines of res judicata or waiver nor a proper respect for previously entered judgments requires that old injunctions remain in effect when the old law on which they were based has changed. Sweeton, 27 F.3d at 1166-67 (6th Cir. 1994); see also Doe v. Briley, 562 F.3d 777, 784 (6th Cir. 2009). Under such circumstances, Defendants should “be relieved from a final judgment or decree [because] it is no longer equitable that the
3

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judgment have prospective application.” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 380 (1992); see also Fed. R. Civ. P. 60(b)(5) (relief from a judgment is appropriate where “it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable”). Because the Court’s permanent injunction enjoins the enforcement of a proclamation that is no longer in effect, it is inequitable for the permanent injunction to remain prospectively.
In essence, this Court’s injunction no longer has any meaningful, practical, or relevant purpose. “An injunction is a drastic and extraordinary remedy,” and should not be granted lightly, nor should an injunction remain in place when the circumstances under which it was ordered have dissipated. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010), Sweeton v. Brown, 27 F.3d 1162, 1166-67 (6th Cir. 1994). Because the Old EO has been rescinded, the permanent injunction ordered by this Court should likewise be rescinded. The Sixth Circuit has recognized that dissolution of injunctions should take place when “[t]he foundation upon which the claim for injunctive relief was built has crumbled,” and as a result, “[n]o basis in federal law exists for the injunctive relief imposed[.]” Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cty., 466 F.3d 391, 395 (6th Cir. 2006) (citing Sweeton, 27 F.3d at 1164). When “many of the alleged justifications for issuance of the injunction are no longer relevant,” it is equitable for the injunction to be dissolved. Washington v. Reno, 35 F.3d 1093,
4

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1095 (6th Cir. 1994). Dissolution of the permanent injunction is therefore appropriate.
CONCLUSION Defendants respectfully request that this Court grant Defendants’ Renewed Motion to Vacate the Permanent Injunction and dissolve its February 2, 2017 Permanent Injunction Order.

Dated: March 20, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director
GISELA A. WESTWATER Assistant Director
EREZ REUVENI Senior Litigation Counsel
JOSHUA S. PRESS Trial Attorney
By: /s/ Briana Yuh BRIANA YUH Trial Attorney District Court Section Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 Telephone: (202) 532-4165
5

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Facsimile: (202) 305-7000 Briana.Yuh@usdoj.gov Counsel for Defendants
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2:17-cv-10310-VAR-SDD Doc # 57 Filed 03/20/17 Pg 7 of 7 Pg ID 900
CERTIFICATION OF SERVICE I hereby certify that on March 20, 2017, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system, which will provide electronic notice and an electronic link to this document to the attorneys of record.
By: /s/ Briana Yuh BRIANA YUH Trial Attorney United States Department of Justice Civil Division
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2:17-cv-10310-VAR-SDD Doc # 57-1 Filed 03/20/17 Pg 1 of 2 Pg ID 901

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.
Plaintiffs,
v.
DONALD TRUMP, et al.

No. 17-cv-10310-VAR-SDD [PROPOSED] ORDER

Defendants.

This Court, having considered Defendants’ Motion to Dissolve Injunction and Amend Order (ECF No. 15), Plaintiffs’ Opposition to Motion to Dissolve Injunction (ECF No. 20), Defendants’ Reply in Support of their Motion to Dissolve Injunction and Amend Order Regarding Plaintiffs’ Motion for Temporary Restraining Order (ECF No. 22), Defendants’ Status Update (ECF No. 33), Plaintiffs’ Response to Defendants’ Status Update and Supporting Declarations (ECF No. 36), Defendants’ Notice of Filing of Executive Order (ECF No. 39), Plaintiffs’ Notice of Voluntary Dismissal without Prejudice (ECF No. 42), Plaintiffs’ Notice Regarding Defendants’ Motion to Dissolve Injunction (ECF No. 45), and Defendants’ Renewed Motion to Vacate Permanent Injunction (ECF No. 57),

2:17-cv-10310-VAR-SDD Doc # 57-1 Filed 03/20/17 Pg 2 of 2 Pg ID 902

HEREBY VACATES the permanent injunction Order issued by the Court

on February 2, 2017 (ECF No. 8).

IT IS ORDERED.

Dated: ________, 2017

S/____________________ Honorable Victoria A. Roberts United States District Judge

 
 2:17-cv-10310-VAR-SDD Doc # 58 Filed 03/21/17 Pg 1 of 3 Pg ID 903

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs, v.

Case No. 17-10310 Honorable Victoria A. Roberts

DONALD TRUMP, et al.,

Defendants. ______________________________/

ORDER DEEMING MOOT DEFENDANTS’ MOTION TO DISSOLVE INJUNCTION [Doc. 15] AND RENEWED MOTION TO VACATE INJUNCTION [Doc. 57]

On January 27, 2017, President Donald Trump issued Executive Order 13769,

82 Fed. Reg. 8977 (Feb. 1, 2017) (the “Original EO”), which, among other things,

affected travel to and from the United States of lawful permanent residents from seven

designated countries. Plaintiffs filed this suit and an ex parte motion for temporary

restraining order to enjoin the Original EO. The Court held a telephone conference on

the motion on February 2, 2017.

During the call, counsel for Defendants stated that the White House issued a

memorandum on February 1, 2017, clarifying that the Original EO did not apply to lawful

permanent residents of the United States. Despite the clarification, Plaintiffs’ counsel

voiced concern that without a federal court order, the Government could change its

mind again and decide to curtail the rights of lawful permanent residents. With no

dissent from the Government, the Court stated it would enter an order to address

Plaintiffs’ concerns.

2:17-cv-10310-VAR-SDD Doc # 58 Filed 03/21/17 Pg 2 of 3 Pg ID 904
Accordingly, the Court entered an order on February 2 permanently enjoining the United States from applying Sections 3(c) and 3(e) of the Original EO against lawful permanent residents of the United States.
On March 6, 2017, the President issued Executive Order 13780, 82 Fed. Reg. 13209 (March 9, 2017) (the “New EO”). The New EO revokes and replaces the Original EO and explicitly states that it does not apply to lawful permanent residents of the United States.
Now, Defendants have filed two motions: (1) motion to dissolve injunction and amend order [Doc. 15]; and (2) renewed motion to vacate permanent injunction [Doc. 57]. Plaintiffs initially opposed Defendants’ motion to dissolve. [Doc. 20]. However, following the issuance of the New EO, Plaintiffs revised their stance; they now ask the Court to deny Defendants’ motion as moot. [Doc. 45].
Because the New EO revokes and replaces the Original EO, the Original EO no longer has force or effect; as a natural result of this revocation, the Court’s order enjoining the United States from applying the Original EO against lawful permanent residents no longer has effect. An order vacating or dissolving the injunction is unnecessary and would be inappropriate.
Defendants’ motions [Docs. 15, 57] are MOOT. IT IS ORDERED.
S/Victoria A. Roberts Victoria A. Roberts United States District Judge Dated: March 21, 2017
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The undersigned certifies that a copy of this document was served on the attorneys of record by electronic means or U.S. Mail on March 21, 2017. s/Linda Vertriest Deputy Clerk
3

 
 2:17-cv-10310-VAR-SDD Doc # 76 Filed 04/17/17 Pg 1 of 49 Pg ID 1002

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs,

Case No. 17-10310

v.

Hon. Victoria A. Roberts

DONALD TRUMP, President of the United States, et al.,

Oral Argument Requested

Defendants. _____________________________________/

DEFENDANTS’ MOTION TO DISMISS

Defendants, President Donald J. Trump, in his official capacity; the

United States Department of Homeland Security (“DHS”); U.S. Customs and

Border Protection (“CBP”); U.S. Citizenship and Immigration Services

(“USCIS”); the United States Department of State; the United States

Department of Justice; the Office of the Director of National Intelligence;

Secretary of Homeland Security John F. Kelly, in his official capacity; acting

CBP Commissioner Kevin K. McAleenan, in his official capacity; Acting

USCIS Director Lori Scialabba, in her official capacity; Secretary of State

Rex W. Tillerson, in his official capacity; Attorney General Jefferson B.

Sessions III, in his official capacity; Director of National Intelligence Dan

2:17-cv-10310-VAR-SDD Doc # 76 Filed 04/17/17 Pg 2 of 49 Pg ID 1003
Coats,1 in his official capacity; and the United States of America, through their attorneys, file this Motion to Dismiss pursuant to Fed. R. Civ. P. 12.
1. Plaintiffs filed their Second Amended Complaint (ECF No. 41) (hereinafter, “Plaintiffs’ Complaint”) on March 16, 2017 seeking to strike down and enjoin Executive Order 13,780, 82 Fed. Reg. 13,209 (2017) in its entirety.
2. For the reasons set forth in the accompanying brief, Plaintiffs’ Complaint should be dismissed.
3. This motion is being filed pursuant to the schedule set in this matter on March 31, 2017 in this Court’s Order Granting the Parties’ Stipulated Motion for a Fourteen Day Extension of Time for Defendants to Answer or File Response. (ECF No. 68.) On April 12, 2017, Plaintiffs’ attorneys were contacted by telephone in order to seek concurrence in this motion pursuant to E.D. Mich. LCR 7.1. The parties could not come to any agreement regarding the relief requested; hence, the need to file this motion and its accompanying memorandum.
1 On March 16, 2017, Dan Coats was sworn in as the Director of National Intelligence of the United States of America, automatically substituting for Michael P. Dempsey, former acting Director of National Intelligence, as a party in accordance with Federal Rule of Civil Procedure 25(d).
2

2:17-cv-10310-VAR-SDD Doc # 76 Filed 04/17/17 Pg 3 of 49 Pg ID 1004

RELIEF REQUESTED

WHEREFORE, for the reasons set forth in the accompanying brief,

Defendants respectfully request that this Court dismiss Plaintiffs’ Complaint

with prejudice.

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

WILLIAM C. PEACHEY Director

GISELA A. WESTWATER Assistant Director

EREZ REUVENI Senior Litigation Counsel

/s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 Facsimile: (202) 305-7000 joshua.press@usdoj.gov

BRIANA YUH Trial Attorney

Dated: April 17, 2017

Attorneys for Defendants

3

2:17-cv-10310-VAR-SDD Doc # 76 Filed 04/17/17 Pg 4 of 49 Pg ID 1005

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs,

v.

Case No. 17-10310

DONALD TRUMP, President of the United

Hon. Victoria A. Roberts

States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND

Oral Argument Requested

BORDER PROTECTION (“CBP”); U.S.

CITIZENSHIP AND IMMIGRATION

SERVICES (“USCIS”); U.S. DEPARTMENT

OF STATE; U.S. DEPARTMENT OF JUSTICE;

OFFICE OF THE DIRECTOR OF NATIONAL

INTELLIGENCE; JOHN KELLY, Secretary of

Homeland Security; KEVIN K. MCALEENAN,

Acting Commissioner of CBP; LORI SCIALABBA,

Acting Director of USCIS; REX W. TILLERSON,

Secretary of State; JEFFERSON B. SESSIONS III,

U.S. Attorney General; MICHAEL DEMPSEY,

Acting Director of National Intelligence; and the

UNITED STATES OF AMERICA,

Defendants. _____________________________________/

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

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TABLE OF CONTENTS INTRODUCTION .................................................................................................... 1 BACKGROUND OF THE ORDER.......................................................................2 FACTUAL AND PROCEDURAL BACKGROUND ...........................................6 LEGAL STANDARD ..............................................................................................7 ARGUMENT ............................................................................................................8
I. Plaintiffs’ Challenges To The Order Are Not Justiciable.........................9 II. Plaintiffs’ Failure To State A Claim ..........................................................13
A. The Order Is A Valid Exercise Of The President’s Authority Because It Falls Squarely Within 8 U.S.C. §§ 1182(f) And 1185(a). ........................13
B. The Order Does Not Violate the Establishment Clause. ..............................16 C. Plaintiffs’ Equal Protection Claim Is Equally Unavailing. ..........................31 D. Plaintiffs’ Free Speech Claim Is Foreclosed By Mandel. ............................34 CONCLUSION .......................................................................................................35
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TABLE OF AUTHORITIES
Cases
16630 Southfield Ltd. P’ship v. Flagstar Bank, FSB, 727 F.3d 502 (6th Cir. 2013) ............................................................................... 8
Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986) ........................................................................ 14
ACLU of Ky. v. Grayson Cnty., Ky., 591 F.3d 837 (6th Cir. 2010) ........................................................... 21, 23, 25, 27
ACLU of Ky. v. Mercer Cnty., Ky., 432 F.3d 624 (6th Cir. 2005) ....................................................................... 21, 28
ACLU v. Ashbrook, 375 F.3d 484 (6th Cir. 2004) ....................................................................... 25-26
Adenwala v. Holder, 341 F. App’x 307 (9th Cir. 2009) ...................................................................... 25
Ahmed v. Gonzales, 447 F.3d 433 (5th Cir. 2006) ............................................................................. 25
Almario v. Atty. Gen., 872 F.2d 147 (6th Cir. 1989) ......................................................................... 2, 33
Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49 (2d Cir. 2001) ................................................................................ 23
Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003) .......................................................................................... 17
Appiah v. INS, 202 F.3d 704 (4th Cir. 2000) ............................................................................. 34
Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011) .......................................................................................... 12
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................... 8, 21
Ashki v. INS, 233 F.3d 913 (6th Cir. 2000) ....................................................................... 33, 34
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2:17-cv-10310-VAR-SDD Doc # 76 Filed 04/17/17 Pg 7 of 49 Pg ID 1008
Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) ......................................................................... 26
Bangura v. Hansen, 434 F.3d 487 (6th Cir. 2006) ....................................................................... 10, 10
Bd. of Educ. v. Mergens, 496 U.S. 226 (1990) ........................................................................................... 31
Ben-Issa v. Reagan, 645 F. Supp. 1556 (W.D. Mich. 1986) .............................................................. 37
Board of Kiryas Joel v. Grumet, 512 U.S. 687 (1994) .................................................................................... 19, 20
Brownell v. Tom We Shung, 352 U.S. 180 (1956) ...................................................................................... 9, 10
Catholic League for Religious & Civ. Rights v. City & Cnty. of San Francisco, 624 F.3d 1043 (9th Cir. 2010) (en banc) ..................................................... 12, 26
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ...................................................................................... 11
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) .......................................................................................... 11
Davis v. FEC, 554 U.S. 724 (2008) ............................................................................................ 9
Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) ............................................................................. 37
Fiallo v. Bell, 430 U.S. 787 (1977) .............................................................................. 18, 29, 33
First Am. Title Co. v. DeVaugh, 480 F.3d 438 (6th Cir. 2007) ............................................................................... 8
Franklin v. Massachusetts, 505 U.S. 788 (1992) .......................................................................................... 18
Glassman v. Arlington Cnty., 628 F.3d 140 (4th Cir. 2010) ............................................................................. 30
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Grindstaff v. Green, 133 F.3d 416 (6th Cir. 1998) ............................................................................... 8
Guzman v. U.S. Dep't of Homeland Sec., 679 F.3d 425 (6th Cir. 2012) ............................................................................. 33
Hadayat v. Gonzales, 458 F.3d 659 (7th Cir. 2006) ............................................................................. 25
Hamama v. INS, 78 F.3d 233 (6th Cir. 1996) ............................................................................... 33
Hamdan v. Rumsfeld, 548 U.S. 557 623 (2006) ................................................................................... 30
Harisiades v. Shaughnessy, 342 U.S. 580 (1952) .......................................................................................... 18
Hawai‘i v. Trump, No. 17-cv-50, 2017 WL 1011673 (D. Haw. Mar. 15, 2017) .............................. 6
Int’l Refugee Assistance Project v. Trump, No. 17-cv-361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) .............................. 6
Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984) (en banc) ........................................................... 34
Kandamar v. Gonzales, 464 F.3d 65 –74 (1st Cir. 2006) ........................................................................ 24
Kepley v. Lanz, 715 F.3d 969 (6th Cir. 2013) ............................................................................... 7
Kevorkian v. Thompson, 947 F. Supp. 1152 (E.D. Mich. 1997) ............................................................... 31
Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) ............................................................................................ 34
Kleindienst v. Mandel, 408 U.S. 753 (1972) .................................................................................. passim
Kodra v. Sec’y, Dep’t of State, 903 F. Supp. 2d 1323 (M.D. Fla. 2012) ............................................................ 10
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Kowalski v. Tesmer, 543 U.S. 125 (2004) .......................................................................................... 16
Louhghalam v.Trump, 2017 WL 479779 (D. Mass. Feb. 3, 2017) ..................................................... 3, 4
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523 (6th Cir. 2007) ......................................................................... 8, 21
Lee v. Weisman, 505 U.S. 577 (1992) .................................................................................... 22, 23
Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) ...................................................................................... 16
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........................................................................................ 7, 9
Lynch v. Donnelly, 465 U.S. 668 (1984) (O’Connor, J., concurring) .............................................. 20
Madison-Hughes v. Shalala, 80 F.3d 1121 (6th Cir. 1996) ............................................................................... 7
Malik v. Gonzales, 213 F. App’x 173 (4th Cir. 2007) ...................................................................... 24
Mathews v. Diaz, 426 U.S. 67 (1976) ............................................................................................ 33
Mathews v. Ohio Pub. Emp. Ret. Sys., 91 F. Supp. 3d 989 (S.D. Ohio 2015) .................................................................. 9
McCreary Cnty. v. ACLU of Ky., 545 U.S. 844 (2005) .................................................................................. passim
Modrovich v. Allegheny Cnty., 385 F.3d 397 (3d Cir. 2004) .............................................................................. 30
Montgomery v. Ffrench, 299 F.2d 730 (8th Cir. 1962) ............................................................................... 2
Mow Sun Wong v. Campbell, 626 F.2d 739 (9th Cir. 1980) ....................................................................... 14, 15
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Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803 (2009) .......................................................................................... 11
Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272 (6th Cir. 1997) ............................................................................. 13
Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (9th Cir. 2010) ..................................................................... 12, 13
Nixon v. Fitzgerald, 457 U.S. 731 (1982) .......................................................................................... 29
Palmer v. Thompson, 403 U.S. 217 (1971) .......................................................................................... 29
Phelps v. Hamilton, 59 F.3d 1058 (10th Cir. 1995) ........................................................................... 31
Raines v. Byrd, 521 U.S. 811 (1997) ............................................................................................ 9
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) .................................................................. 24, 33, 34
Religion Found., Inc. v. Lew, 773 F.3d 815 (7th Cir. 2014) ............................................................................. 12
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) .......................................................................................... 29
Republican Party of Minn. v. White, 536 U.S. 765 (2002) .......................................................................................... 30
Roudnahal v. Ridge, 310 F. Supp. 2d 884 (N.D. Ohio 2003) ............................................................. 25
Salazar v. Buono, 559 U.S. 700 (2010) .......................................................................................... 30
Sarsour v. Trump, 2017 WL 1113305 (E.D. Va. Mar. 24, 2017) ....................................... 17, 31, 33
Shaybob v. Att’y Gen., 189 F. App’x 127 (3d Cir. 2006) ....................................................................... 25
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Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197 (6th Cir. 2011) (en banc) ....................................................... 14, 20
Suhre v. Haywood Cnty., 131 F.3d 1083 (4th Cir. 1997) ........................................................................... 13
Texas v. United States, 523 U.S. 296 (1998) .......................................................................................... 11
U.S. ex rel. London v. Phelps, 22 F.2d 288 (2d Cir. 1927) ................................................................................ 10
United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489 (2d Cir. 1950) .............................................................................. 18
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) .................................................................................... 17, 18
United States v. Armstrong, 517 U.S. 456 (1996) .......................................................................................... 28
United States v. Chem. Found., Inc., 272 U.S. 1 (1926) .............................................................................................. 28
United States v. Nixon, 418 U.S. 683 (1974) ........................................................................................... 29
United States v. Ritchie, 15 F.3d 592 (6th Cir. 1994) ................................................................................. 7
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) .......................................................................................... 16
Valley Forge Christian Coll. v. Ams. United for Separation of Ch. & State, Inc., 454 U.S. 464 (1982) .......................................................................................... 12
Washington v. Trump, 2017 U.S. App. LEXIS 4838 (9th Cir. Mar. 17, 2017) .................................... 24
Washegesic v. Bloomingdale Pub. Schs., 33 F.3d 679 (6th Cir. 1994) ............................................................................... 23
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (per curiam) ........................................................ 4
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Weinbaum v. City of Las Cruces, 541 F.3d 1017 (10th Cir. 2008) ......................................................................... 30
Zafar v. U.S. Att’y Gen., 461 F.3d 1357 (11th Cir. 2006) ......................................................................... 24
Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015) ...................................................................................... 17 Statutes
8 U.S.C. § 1182(a) ................................................................................................. 14 8 U.S.C. § 1185(a)(1) ............................................................................................... 3 8 U.S.C. § 1187(a)(12) ............................................................................................. 4 8 U.S.C. § 1154(e) .................................................................................................... 7 8 U.S.C. § 1201(h) ................................................................................................... 7 8 U.S.C. § 1185(a)(1) ............................................................................................. 16 8 U.S.C. § 1182(f) .......................................................................................... passim 8 U.S.C. § 1201(a)(1) ............................................................................................... 7 8 U.S.C. § 1181 ......................................................................................................... 2 8 U.S.C. § 1182(a)(7)(B)(i)(II) ................................................................................ 2 8 U.S.C. § 1182(a)(7)(A) .......................................................................................... 2 8 U.S.C. § 1182(a)(7)(B)(iv)..................................................................................... 4 8 U.S.C. § 1187 ........................................................................................................ 4 8 U.S.C. § 1185(a) ................................................................................. 3, 15, 16, 17
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INTRODUCTION Defendants submit this brief in support of their Motion to Dismiss (ECF No. 76) Plaintiffs’ Second Amended Complaint (ECF No. 41) (“Plaintiffs’ Complaint”). Although Plaintiffs seek to enjoin and declare Executive Order 13,780 (“Order”), 82 Fed. Reg. 13,209 (2017) “[a]s unlawful and invalid,” it is Plaintiffs’ Complaint that should be dismissed in its entirety because their claims are not justiciable and fail on the merits. At a minimum, the portions of Plaintiffs’ Complaint seeking to enjoin the Order beyond Section 2(c) should be dismissed because Plaintiffs lack standing to challenge the other provisions. Plaintiffs’ claims are not justiciable because the individual plaintiffs—eight citizens and one lawful permanent resident (“LPR”) of the United States—cannot demonstrate any cognizable injury fairly traceable to the Order unless and until their alien relatives on whose behalf they filed immigrant petitions have been found eligible for a visa and denied a waiver. The organizational plaintiffs also lack standing because they lack associational standing and have failed to name anyone subject to the Order whom they wish to invite, let alone denied a waiver. Furthermore, Plaintiffs’ claims fail on the merits. The Immigration and Nationality Act (“INA”) grants the President broad authority that plainly encompasses the Order’s temporary suspension-of-entry provisions. And
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Plaintiffs’ argument that this suspension violates their constitutional rights fails because the President’s national security justification provides “a facially legitimate and bona fide reason” for the Order. Kleindienst v. Mandel, 408 U.S. 753, 770 (1972). Case law makes clear that the Order must be judged by what it says and does—not by what supposedly lies in the hearts of its drafters. Finally, Plaintiffs present a First Amendment “right to receive information” claim that is also foreclosed by Mandel. See Almario v. Atty. Gen., 872 F.2d 147, 151 (6th Cir. 1989) (“[T]his court is … limited in its review of [immigration policies because] … Kleindienst … requires that we exercise a very narrow standard of review assuming the classification at issue … is supported by a facially legitimate and bona fide reason”). For these reasons, this Court should dismiss Plaintiffs’ Complaint.
BACKGROUND OF THE ORDER Under the INA, an alien seeking entry into the United States generally must present a valid immigrant or nonimmigrant visa or other travel document, in addition to satisfying other criteria. See 8 U.S.C. §§ 1181, 1182(a)(7)(A)(i), (B)(i)(II), 1203.1 The process of applying for a visa typically includes an in-person
1 To enter and remain in the United States lawfully, Congress generally requires (as a precondition to admission in immigrant or non-immigrant status)
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interview and results in a decision by a State Department consular officer. Id. at §§
1201(a)(1), 1202, 1204. Eligibility for a visa depends on many factors, including
nationality. See, e.g., id. at §§ 1184(e), 1735. The INA also grants the President
broad discretion to restrict or suspend the entry of certain classes of aliens. First,
Section 1182(f) provides:
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.
Second, Section 1185(a)(1) makes it unlawful for an alien to enter or attempt to
enter the country “except under such reasonable rules, regulations, and orders, and
subject to such limitations and exceptions as the President may prescribe.”
On January 27, 2017, the President issued the Revoked Order. Courts across
the country, including this one, weighed in on it, compare Louhghalam v.Trump,
each alien to possess a valid visa. See 8 U.S.C. §§ 1182(a)(7)(A)&(B); Montgomery v. Ffrench, 299 F.2d 730, 734 (8th Cir. 1962) (“Admission of an alien to this country is not a right but a privilege which is granted only upon such terms as the United States prescribes.”). There are several ways to obtain “immigrant visas” that would allow the recipients to become LPRs following admission. One way for an alien to receive an immigrant visa—the way relevant to Plaintiffs’ Complaint—is to have a United States citizen or LPR file a Form I-130 Petition for Alien Relative (“petition”) with the USCIS on the alien’s behalf. Once approved, the petition will classify the intended beneficiary under one of the congressionally-
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— F. Supp. 3d —, 2017 WL 479779 (D. Mass. Feb. 3, 2017) (denying a preliminary injunction), with Washington v. Trump, 847 F.3d 1151, 1156 (9th Cir. 2017) (per curiam) (declining to stay an injunction); and Order, ECF No. 8. In the light of these judicial decisions, the President re-examined the national security circumstances giving rise to the Order to determine whether they could be addressed in a manner consistent with these decisions. Addressing the courts’ decisions, and at the urging of the Attorney General and Secretary of Homeland Security,2 the President issued the Order on March 6, 2017. The Order took effect and replaced the Revoked Order on March 16.
The Order’s purpose is to enable the assessment of whether current screening and vetting procedures are sufficient to detect potential terrorists seeking to infiltrate the nation. Order at § 1(f). The President thus ordered a temporary, 90day suspension on entry of certain foreign nationals from six nations previously “identified as presenting heightened concerns about terrorism and travel to the United States” in 2015 and 2016: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Id. at § 1(a), (d)–(f).3
created immigrant relative categories within the INA. See 8 C.F.R. § 204.1(a)(1). 2 Joint Ltr. to President (Mar. 6, 2017), https://www.dhs.gov/sites/default/
files/publications/17_0306_S1_DHS-DOJ-POTUS-letter_0.pdf. 3 The Visa Waiver Program enables certain nationals of participating 4

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Each of the six designated countries “is a state sponsor of terrorism, has
been significantly compromised by terrorist organizations, or contains active
conflict zones.” Order at §1(d). The Order details how each country presents
“heightened risk[s]” that terrorists from those countries could enter the United
States and that their governments may lack the “willingness or ability to share or
validate important information about individuals seeking to travel to the United
States” to screen them properly. To that end, the Order “suspend[s] for 90 days”
the “entry into the United States of nationals of those six countries.” Order at
§ 2(c). In response to court rulings concerning the Revoked Order, however, the
Order excludes other categories of aliens and clarifies that the suspension applies
only to aliens who: (1) are outside the United States on the Order’s effective date,
(2) do not have a valid visa on that date, and (3) did not have a valid visa at 5:00
p.m. (EST) on January 27, 2017. Order at § 3(a).
countries to seek temporary admission without first obtaining a visa. 8 U.S.C. §§ 1182(a)(7)(B)(iv), 1187. In 2015, however, Congress excluded individuals from certain Visa Waiver Program-participating countries from visa-free travel. Id. at § 1187(a)(12). In February 2016, DHS also excluded recent visitors to Libya, Somalia, and Yemen from benefitting from the program. In short, Congress and DHS determined that conditions in the seven countries warranted more scrutiny. The Order notably excludes Iraq because “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.” Order at § 1(g).
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The Order also contains a detailed waiver provision. Order at § 3(c). It permits consular officers (and the Commissioner of U.S. Customs and Border Protection or his delegee) to grant case-by-case waivers where denying entry “would cause undue hardship” and “entry would not pose a threat to national security and would be in the national interest.” Id. Waivers may be appropriate for:
• foreign nationals who were previously “admitted to the United States for a continuous period of work, study, or other long-term activity,” but who are currently outside the country and seeking to reenter;
• individuals who seek entry for “significant business or professional obligations”; and
• individuals who seek entry “to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a U.S. citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa.”
Waiver requests will be reviewed “as part of the visa issuance process.” Order at § 3(c); see also U.S. Dep’t of State, Executive Order on Visas (Mar. 22, 2017), https://travel.state.gov/content/travel/en/news/important-announcement.html. Individuals may provide consular officers with information relevant to eligibility for a waiver during a visa-application interview.
FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs’ Complaint was filed on March 16.4 The nine individual plaintiffs reside in the United States and are petitioning for their immediate relatives
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(spouses, fiancés, parents, or minors), who are nationals of one of the designated countries, to apply for immigrant visas overseas.5 The five organizational plaintiffs seek to represent the interests of the individual plaintiffs or their own free speech interest in bringing nationals of the designated countries to the United States.
LEGAL STANDARD A party may seek dismissal of an action by challenging subject matter jurisdiction under Rule 12(b)(1), at which point the plaintiff bears the burden of proving jurisdiction. Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996). A challenge to standing addresses a court’s subject matter jurisdiction. Kepley v. Lanz, 715 F.3d 969, 972 (6th Cir. 2013). A court may not exercise jurisdiction if a claimant lacks standing or the claim is unripe. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Under Rule 12(b)(1), a court may “resolve factual disputes when necessary to resolve challenges to subject matter
enforcement of Sections 2 and 6 of the Order nationwide. See Hawai‘i v. Trump, No. 17-cv-50, 2017 WL 1011673, at *1 (D. Haw. Mar. 15, 2017). A day later, the District Court for the District of Maryland entered a nationwide preliminary injunction against enforcement of Section 2(c) of the Order. See Int’l Refugee Assistance Project v. Trump, No. 17-cv-361, 2017 WL 1018235, at *18 (D. Md. Mar. 16, 2017). Defendants have appealed both decisions.
5 The issuance or denial of a visa application is for each consular officer, 8 U.S.C. § 1201(a)(1), but even that does not guarantee entry, id. at §§ 1154(e), 1201(h), which is ultimately a decision for CBP officers.
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jurisdiction,” Kepley, 715 F.3d at 972, and weigh evidence to determine its power to hear the case, United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).
Rules 12(c) and (b)(6) allow district courts to dismiss a complaint on the pleadings or for failure “to state a claim upon which relief can be granted.” To survive a motion to dismiss under either, a plaintiff must show that his complaint alleges facts which, if proven, would entitle him to relief, First Am. Title Co. v. DeVaugh, 480 F.3d 438, 443 (6th Cir. 2007); see also Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998), which requires showing “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard imposes both legal and factual demands upon plaintiffs. 16630 Southfield Ltd. P’ship v. Flagstar Bank, FSB, 727 F.3d 502, 503 (6th Cir. 2013). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility of an inference depends on a host of considerations, including common sense and the strength of competing explanations for the defendant’s conduct.” Flagstar, 727 F.3d at 505. This prevents costly discovery. Id. (citing Twombly, 550 U.S. at 558). Regardless,
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courts may dismiss claims not legally cognizable. See, e.g., League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007).
ARGUMENT I. Plaintiffs’ Challenges To The Order Are Not Justiciable.
Plaintiffs’ claims either lack Article III or prudential standing, or are not yet ripe. Plaintiffs fail to demonstrate a “legally and judicially cognizable” injury, Raines v. Byrd, 521 U.S. 811, 819 (1997), consisting of, at minimum, a “concrete and particularized” injury that is “actual or imminent, not conjectural or hypothetical,” Lujan, 504 U.S. at 560–61. Moreover, Plaintiffs fail to demonstrate standing for each claim and form of relief sought. See Davis v. FEC, 554 U.S. 724, 734 (2008). Plaintiffs cannot even show that the Order is unconstitutional as applied to them, rendering any facial challenge nonjusticiable. See, e.g., Mathews v. Ohio Pub. Emp. Ret. Sys., 91 F. Supp. 3d 989, 1005–06 (S.D. Ohio 2015).
First, the petitioner plaintiffs lack standing to challenge on their own behalf (or on the behalf of their beneficiary family members) any visa denials under the Order. They cannot claim standing under the guise of pursuing the interests of their beneficiary family members because principles of consular nonreviewability have long provided that an alien abroad cannot obtain judicial review of the denial of a visa. See, e.g., Brownell v. Tom We Shung, 352 U.S. 180, 184 n.3, 185 n.6 (1956);
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Bangura v. Hansen, 434 F.3d 487, 492, 501–02 (6th Cir. 2006). They similarly cannot claim to be bringing suit to defend their own interests in the granting of a visa to a family member. The Sixth Circuit in Bangura clarified that a petitioning U.S. citizen spouse’s due process claim must fail regarding denial of the same visa because the “denial of an immediate relative visa does not infringe upon the right to marry.” Id. at 496. Plaintiffs’ claims are foreclosed by the same principles of nonreviewability. Cf. United States ex rel. London v. Phelps, 22 F.2d 288, 290 (2d Cir. 1927) (“Whether the consul has acted reasonably or unreasonably is not for us to determine. Unjustifiable refusal to visé a passport may be ground for diplomatic complaint …. [But i]t is beyond the jurisdiction of the court.” (citation omitted)).
Second, to the extent Plaintiffs challenge alleged delays to the visa application process caused by the Order, such delay (even if the aliens are otherwise eligible for visas) does not confer standing. See Kodra v. Sec’y, Dep’t of State, 903 F. Supp. 2d 1323, 1327 (M.D. Fla. 2012). Yet, here, that is precisely what Plaintiffs complain of: they seek to challenge the Order’s temporary, 90-day suspension on entry, which is subject to waivers even during that brief period.
Third, even if the petitioner plaintiffs had standing with respect to visa denials, their claims are not ripe because no visas have been denied. “The doctrine[] of ... ripeness ... originate[s] in Article III’s ‘case’ or ‘controversy’
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language, no less than standing does.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 351 (2006). Ripeness ensures that courts “avoid[] ... premature adjudication,” particularly where future agency decision-making or factual determinations may change the character of the controversy or obviate the need for judicial relief altogether. Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2009). Here, Plaintiffs’ allegations indicate their claims are unripe. Their relatives in the designated countries appear to be potentially eligible for a waiver under the Order. See Order at §§ 3(c)(iv), 6(c). Unless and until they are actually denied a visa, their ability to seek entry—and thus their alleged injury—“rests upon ‘contingent future events.’” Texas v. United States, 523 U.S. 296, 300 (1998). Simply put, potential difficulties in entry are insufficient because they are merely “possible future injur[ies],” much less injuries that are “certainly impending.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (emphasis omitted).
Any attempt to demonstrate standing based on the Establishment Clause similarly fails. With such claims, a plaintiff cannot establish standing without showing a personal injury beyond “the psychological consequence presumably produced by observation of conduct with which one disagrees.” See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485–86 (1982). Plaintiffs, rather, must demonstrate a “particular and concrete
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injury to a personal constitutional right.” Id. at 482. This, for example, could include a “direct harm of what is claimed to be an establishment of religion, such as a mandatory prayer in a public school classroom,” or that Plaintiffs “have incurred a cost or been denied a benefit on account of their religion,” such as “when the availability of a tax exemption is conditioned on religious affiliation.” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 133–34 (2011); see also Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815, 820–21 (7th Cir. 2014); Catholic League for Religious & Civ. Rights v. City & Cnty. of San Francisco, 624 F.3d 1043, 1049–50 (9th Cir. 2010) (en banc).
Neither the individual nor organizational plaintiffs make such a showing here. First, they cannot demonstrate “direct harm” because the Order does not require Plaintiffs to “see or do anything.” Lew, 773 F.3d at 820; see also Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1016 (9th Cir. 2010) (no standing to challenge Pledge of Allegiance because “nothing in the Pledge [or the statute codifying it] actually requires anyone to recite it”). In other words, the Order does not “convey[] a government message of disapproval and hostility toward their religious beliefs[.]” Catholic League, 624 F.3d at 1053.
Likewise, Plaintiffs cannot show they have incurred a cost or been denied a benefit on account of their religion. Some Plaintiffs have not yet applied for visas
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and the applications of those that have are being processed and will continue to be processed even if the Order were not enjoined. See, e.g., Lew, 773 F.3d at 821 (rejecting standing where “the plaintiffs were never denied the parsonage exemption because they never asked for it”). Indeed, given the waiver provisions in Section 3(c), Plaintiffs’ claims with respect to aliens seeking entry or a visa in the future are entirely speculative—assuming without a basis that they will be denied waivers—and therefore not ripe under Article III in the first place. See, e.g., Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997) (“Ripeness becomes an issue when a case is anchored in future events that may not occur as anticipated, or at all.”); Suhre v. Haywood Cnty., 131 F.3d 1083, 1091 (4th Cir. 1997) (rejecting “untenable assumptions” about future events).
In any event, Plaintiffs may not assert others’ potential Establishment Clause claims. A plaintiff “generally must assert his own legal rights and interests,” except in the limited circumstances where he has “third party standing to assert the rights of another.” Kowalski v. Tesmer, 543 U.S. 125, 129–30 (2004).6 Here, Plaintiffs cannot assert an Establishment Clause claim on behalf of third-party aliens abroad
6 Although this rule has traditionally been framed as a “prudential standing” requirement, the Supreme Court recently reserved the question whether it is better characterized as a limitation on the “right of action on the claim.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 n.3 (2014).
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who are subject to Sections 2(c) and 6. Lacking any substantial connections to this country, those aliens abroad possess no Establishment Clause rights, see United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990), and no constitutional rights regarding entry into this country, see Mandel, 408 U.S. at 762. Nor can Plaintiffs assert a claim that their own Establishment Clause rights are being violated because their religion is entirely immaterial to the purported discrimination against their loved ones abroad. See Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197, 207 (6th Cir. 2011) (en banc). Indeed, Plaintiffs would have standing in this case, if at all, only to assert their freedom of speech/association claim based on allegedly being deprived of the ability to speak with aliens temporarily excluded under the Order (see below). But that provides them no basis to invoke the Establishment Clause.
II. Plaintiffs’ Failure To State A Claim A. The Order Is A Valid Exercise Of The President’s Authority Because It Falls Squarely Within 8 U.S.C. §§ 1182(f) And 1185(a). “[T]he power to exclude aliens is inherent in sovereignty, necessary for
maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the
Regardless of the label, Plaintiffs here fail to satisfy the substance of this rule. 14

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political branches of the government.” Mandel, 408 U.S. at 765. Congress also conferred broad authority on the President within the two provisions the Order invokes: 8 U.S.C. §§ 1182(f) and 1185(a). Order at § 2(c).
First, Section 1182(f) provides that “[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or of any class of aliens as immigrants or nonimmigrants,” or “impose on the entry of aliens any restrictions he deems to be appropriate.” “The President’s sweeping proclamation power [under Section 1182(f)] provides a safeguard against the danger posed by any particular case or class of cases that is not covered by one of the [inadmissibility] categories in section 1182(a).” Abourezk v. Reagan, 785 F.2d 1043, 1049 n.2 (D.C. Cir. 1986), aff’d, 484 U.S. 1 (1987); see Mow Sun Wong v. Campbell, 626 F.2d 739, 744 n.9 (9th Cir. 1980). Every President over the last 30 years has invoked that authority to suspend or restrict entry of classes of aliens.7
7 See, e.g., Proclamation 5517 (1986) (Cuban nationals as immigrants); Exec. Order No. 12,807 (1992) (government officials who impeded anti-humantrafficking efforts); Proclamation 8342 (2009) (same); Proclamation 6958 (1996) (government officials and armed forces of Sudan); Proclamation 8693 (aliens subject to U.N. Security Council travel bans and meeting criteria for designation for certain Executive Orders imposing financial sanctions).
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Second, Section 1185(a) broadly authorizes the “President” to “prescribe” reasonable “rules, regulations, and orders,” and “limitations and exceptions” regarding entry of aliens. That provision is the latest in a line of statutory grants of authority tracing back nearly a century. See Pub. L. No. 65-154, § 1(a), 40 Stat. 559 (1918). Originally limited to times of war or declared national emergency, Congress removed that limitation in 1978, when it enacted Section 1185(a) in its current form. Pub. L. 95-426, §707(a), 92 Stat. 963, 992–93 (1978).
Both of those provisions comfortably encompass the Order’s temporary suspension of entry of aliens from six countries that the President—in consultation with the Attorney General, the Secretary of State, and the Secretary of Homeland Security—concluded require special precautions while the review of existing screening and vetting protocols is completed. That temporary measure is a paradigmatic exercise of the President’s authority to “suspend the entry” of “any class of aliens” he finds may be “detrimental to the interests of the United States,” 8 U.S.C. § 1182(f), and to prescribe “limitations” and “exceptions” on entry, id. § 1185(a)(1).
B. The Order Does Not Violate the Establishment Clause. The Order was issued by the President after consultation with Executive Branch advisors and agencies, implementing a judgment concerning foreign
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relations and national security. It makes no mention of any religion or religion in general, and its operative effects are all unrelated to religious belief or affiliation. See Sarsour v. Trump, — F. Supp. 3d —, 2017 WL 1113305 at *9 (E.D. Va. Mar. 24, 2017) (finding that the Order is facially neutral and does not distinguish based on religion). Its purpose is to ensure that the nation’s screening and vetting procedures detect threats to the United States.
In few areas is the President’s authority greater than in foreign relations and national security. See, e.g., Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414–15 (2003); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). The President’s power in this case “is at its maximum,” Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083–84 (2015), through 8 U.S.C. § 1182(f) and § 1185(a)(1). The President’s “unique constitutional position” and “respect for the separation of powers” compel even greater solicitude for decisions made by the President than by his subordinates. Franklin v. Massachusetts, 505 U.S. 788, 800 (1992). For example, unlike agencies’ actions, the President’s policy decisions are not reviewable under the APA, and courts “ha[ve] no jurisdiction … to enjoin the President in the performance of his official duties.” Id. at 800-03 (plurality opinion) (quoting Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501 (1867)).
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that “when the Executive exercises” its authority to exclude aliens from the country “on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the” asserted constitutional rights of U.S. citizens. Mandel, 408 U.S. at 770; see Fiallo v. Bell, 430 U.S. 787, 796 (1977). That rule reflects the Constitution’s allocation of power over immigration matters, which “are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952); see Knauff, 338 U.S. at 542. Accordingly, the Order’s national security purpose demonstrates a facially legitimate and bona fide purpose that ends the analysis without need to look at Plaintiffs’ perceived religious animus. See Mandel, 408 U.S. at 77; Fiallo, 430 U.S. at 796; cf. also United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 490 (2d Cir. 1950) (L. Hand, J.) (“An alien has no such privilege; unless the ground stated is on its face insufficient, he must accept the decision, for it was made in the ‘exercise of discretion,’ which we have again and again declared that we will not review.”).
But even were it appropriate to apply case law addressing domestic applications of the Establishment Clause to the President’s foreign policy and national security decisions, such official action must be adjudged by “‘text,
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legislative history, and implementation of the statute or comparable official act[ion],’” not through “judicial psychoanalysis of a drafter’s heart of hearts.” McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 862 (2005) (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)). This is because stigmatization and alienation caused by the government publicly communicating a message favoring or disfavoring religion is the harm that Establishment Clause jurisprudence seeks to avoid. See Board of Kiryas Joel v. Grumet, 512 U.S. 687, 696 (1994); McCreary, 545 U.S. at 863 (explaining that it is the objective manifestation of governmental action that the public observes and that thus has the potential to “stir[] up ... strife” and “make outsiders of nonadherents”). Where governmental action does not actually convey such a message, the Establishment Clause thus cannot be violated.
To pass muster under the Establishment Clause, government action (1) “must ‘have a secular purpose,’” (2) “‘its principal or primary effect must be one that neither advances nor inhibits religion,’” and (3) it “‘must not foster an excessive government entanglement with religion.’” Jefferson Cnty., 788 F.3d at 586–87 (quoting Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971)).8 Plaintiffs
8 An Establishment Clause claim can also involve two other inquiries—an “endorsement” analysis, see Lynch v. Donnelly, 465 U.S. 668 (1984) (O’Connor,
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allege that the Order “has the purpose and effect of inhibiting religion.” Am. Compl. at ¶ 358. Yet Plaintiffs’ allegations raise neither of Lemon’s first two prongs past the plausibility threshold. Plaintiffs’ allegations that the Order “will have the effect of discriminating against Muslims, disfavoring and disadvantaging Islam,” id. at ¶ 355, are flatly contradicted by the terms and effect of the Order itself, and fail to raise the inference of wrongdoing to at least the level of plausibility, see Iqbal, 556 U.S. at 678, or stake out a legally cognizable Establishment claim, see Bredesen, 500 F.3d at 527.
1. The Order heightens security; it does not inhibit religion. The Lemon effects analysis poses an “objective” inquiry, asking “‘whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.’” Smith, 788 F.3d at 587 (quoting Lynch, 465 U.S. at 690 (O’Connor, J., concurring)). A government action “has a religious effect where it is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a
J., concurring), and a historical approach regarding the specific practice. Smith, 788 F.3d at 587 (quoting Town of Greece v. Galloway, 134 S. Ct. 1811, 1819 (2014)). The first inquiry “clarified” the effects prong in Lemon, asking “whether the action conveyed an objective message that the government was endorsing religion.” Smith, 788 F.3d at 589. This inquiry is more fully addressed below. And under Galloway, history supports the Order’s constitutionality.
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disapproval, of their religious choices.” ACLU of Ky. v. Grayson Cnty., Ky., 591 F.3d 837, 845 (6th Cir. 2010) (quotation omitted). But a reasonable person must be able to perceive that purportedly religious message; the possibility of construing a religious message based on incidental or ancillary religious effects is insufficient. See ACLU of Ky. v. Mercer Cnty., Ky., 432 F.3d 624, 636 (6th Cir. 2005) (looking at “whether the reasonable person would [so] conclude”). “The First Amendment does not prohibit practices which … create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact.” Lee v. Weisman, 505 U.S. 577, 598 (1992).
That the six countries covered by Section 2(c) have “predominantly Muslim” populations, Am. Compl. at ¶ 161, does not establish that the primary effect of Section 2(c)—let alone Sections 6(a) and 6(b), which apply worldwide— is to disapprove or inhibit the practice of Islam. Those countries were identified by Congress and a prior Administration for reasons that Plaintiffs do not contend were religiously motivated or had a primary effect of inhibiting religion. The Order temporarily pauses entry from the six identified countries in order to “prevent infiltration by foreign terrorists” while the review of screening and vetting procedures is ongoing. The six countries represent a handful of the world’s 50
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Muslim-majority nations and approximately 10% of the global Muslim population. And Section 2(c) covers every national of those countries, including non-Muslims, if they meet the Order’s neutral criteria and are not entitled to a waiver. Given the overwhelming security orientation of the Order and the absence of any reference to religion, Plaintiffs fail to plausibly allege a likelihood that a reasonable observer would understand the Order to have a “meaningful and practical [religious] impact,” see Lee, 505 U.S. at 598, such that it would send “the ‘unmistakable message’ of endorsing religion,” see Grayson Cnty., 591 F.3d at 848 (quoting Mercer Cnty., 432 F.3d at 637).9
The Order also explicitly excludes Iraq, another Muslim-majority nation that was subject to the Revoked Order, because “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.” Order at § 1(g). Thus, the Order excludes Iraq from the temporary travel suspension based on plainly neutral criteria related to national
9 Plaintiffs are not alleging that they were directly exposed to religious discrimination, but claim a stigmatic injury based on campaign statements and third-party characterizations of the Order. The Order, however, makes no reference to religion to cause any stigma. See Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 72 (2d Cir. 2001). There is therefore no direct contact with a sectarian religious view for standing. See Washegesic v. Bloomingdale Pub. Schs., 33 F.3d 679, 682
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security, and reflecting the most current national security analysis. The Order simultaneously recognizes that circumstances in Iraq require additional scrutiny to ensure that visa applicants are not connected to terrorist organizations. Id. at § 4. This careful treatment of Iraq and the President’s acknowledgment of cooperation demonstrate how the Order is based solely on national security interests.
Moreover, to regard the dominant religion of a foreign country as evidence of religious discrimination could intrude on “every foreign policy decision made by the political branches,” Washington v. Trump, — F.3d —, 2017 U.S. App. LEXIS 4838, at *18, n.2 (9th Cir. Mar. 17, 2017) (Kozinski, J., dissenting from denial of rehearing en banc), because such measures often address particular nations with a dominant religion, id. at *39–41 (Bybee. J., dissenting from denial of rehearing en banc). This litigation parallels the several challenges to the National Security Entry-Exit Registration System, which required non-immigrant alien male nationals of 24 Muslim-majority nations and North Korea to appear for registration and fingerprinting based on terrorism concerns. Id.; see also Rajah v. Mukasey, 544 F.3d 427, 433–34, 439 (2d Cir. 2008). The aliens in those cases argued that, owing to the religious makeup of the countries selected, the system discriminated against them on the basis of, inter alia, religion, and “was motivated
(6th Cir. 1994). 23

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by an improper animus toward Muslims.” Id. at 439. Every circuit to address that program held that any impact resulting from this selection criteria failed to show discrimination on the basis of religion or other characteristic. Id.; Malik v. Gonzales, 213 F. App’x 173, 174–75 (4th Cir. 2007); Kandamar v. Gonzales, 464 F.3d 65, 72–74 (1st Cir. 2006); Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1367 (11th Cir. 2006); Hadayat v. Gonzales, 458 F.3d 659, 664–65 (7th Cir. 2006); Shaybob v. Att’y Gen., 189 F. App’x 127, 130 (3d Cir. 2006); Ahmed v. Gonzales, 447 F.3d 433, 439 (5th Cir. 2006)); see also Adenwala v. Holder, 341 F. App’x 307, 309 (9th Cir. 2009); Roudnahal v. Ridge, 310 F. Supp. 2d 884, 892 (N.D. Ohio 2003). In light of this overwhelming rejection of religious discrimination in a measure that targeted a far greater number of majority Muslim nations—and thus would present a far stronger case for finding an impermissible anti-Muslim effect—Plaintiffs’ bare allegations fail to plausibly suggest that an objective observer would perceive an “unmistakable” religious effect from the Order itself. See Grayson Cnty., 591 F.3d at 848.
2. Under Lemon, the Order cannot be enjoined on the basis of campaign statements or the Revoked Order.
In conformity with Lemon’s first prong, the Order espouses a secular purpose, which is entitled to “deference” so long as it is “not merely secondary to a religious objective.” McCreary, 545 U.S. at 864. Plaintiffs attempt to overcome the
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facially neutral purpose of the Order by pointing to campaign statements and the Revoked Order. Plaintiffs’ efforts must fail, however, because the Order is qualitatively different from the types of governmental actions struck down for an impermissible “ostensibly and predominant purpose of advancing religion.” See id. at 860; accord ACLU v. Ashbrook, 375 F.3d 484, 491 (6th Cir. 2004). The Order, which suspends entry of aliens and does not reference religion, is nothing like the nakedly sectarian symbols or actions challenged in the four post-Lemon cases where the Supreme Court found an impermissible religious purpose. See McCreary, 545 U.S. at 859. In those cases, a governmental entity erected or promoted the Ten Commandments, the Christian crèche or cross, or prayer in a public forum—actions which directly involved patently religious symbols or activities. Id. at 859, n.9 (listing the four cases where these violations occurred); see also Catholic League, 624 F.3d at 1049–50 (listing Establishment cases finding standing—all involving a religious symbol or text, or a religious activity).
Even where courts have struck actions under the first Lemon prong that are not merely educational or symbolic, but have the effect of law, such enactments invariably reference and draw distinctions on the basis of religion. See, e.g., Catholic League, 624 F.3d at 1049–50 (resolution specifically named and criticized directive by Catholic cardinal and Vatican); Awad v. Ziriax, 670 F.3d
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1111, 1128 (10th Cir. 2012) (upholding preliminary injunction against Oklahoma amendment that specifically named and excluded “Sharia law”). Plaintiffs can point to no support for their suggestion that an impermissible religious purpose can be imputed when the action lacks the barest mention of an idea, symbol, or practice associated with any or all religions. As the Sixth Circuit has observed, “if there is no manifest religious purpose for a display, an Establishment Clause complaint should fail[.]” Grayson Cnty., 591 F.3d at 848.
Plaintiffs assert the need for a contextual inquiry that would encompass campaign statements, but McCreary itself illustrates that searching the legislative context and sequence of events is not appropriate unless the governmental action is overtly religious and the court must search beyond the challenged action for a “legitimizing secular purpose.” 545 U.S. at 871 (emphasis added). Under McCreary, outside contextual evidence is only referenced in an attempt to rebut the presumptively religious purpose—not to disprove a presumptively secular one. Id. at 863 (action has only been invalidated when “openly available data support[] a commonsense conclusion that a religious objective permeate[s]” it); Grayson Cnty., 591 F.3d at 848 (explaining that “evidence [rebutting an improper religious] purpose must be external” and objectively observable without psychoanalysis). As courts have made clear, a contextual inquiry is only necessary to look for an
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alternative explanation to the “common sense” presumption of religious intent drawn from information with an objective portent (such as how a Ten Commandments display undeniably has some relation to religion), that would evince a redeeming secular purpose. See id; Mercer Cnty, 432 F.3d at 639 (“That [the Ten Commandments] are religious merely begs the question whether this display is religious; it does not answer it.”). No such contextual inquiry is thus permitted where, as here, the religiously—neutral government action fails to trigger a “common sense” presumption of religious purpose.
Additionally, in general, under the Constitution’s structure and its separation of powers, courts evaluating a presidential policy directive should not secondguess the President’s stated purpose by looking beyond the policy’s text and operation. The “presumption of regularity” that attaches to all federal officials’ actions, United States v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926), applies with the utmost force to the President himself. Indeed, it applies to his subordinate officials precisely “because they are designated … as the President’s delegates to help him discharge his constitutional responsibility to ‘take Care that the Laws be faithfully executed.’” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting U.S. Const. art. II, § 3). The Supreme Court has accordingly explained in the immigration context that courts may not “look behind the exercise of
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[Executive] discretion” taken “on the basis of a facially legitimate and bona fide reason,” such as the security objective the Order describes. See Mandel, 408 U.S. at 77; Fiallo, 430 U.S. at 796. That clear rule, and the presumption upon which it is premised—which Plaintiffs never address—disposes of their Establishment Clause claim. As those cases recognize, Plaintiffs’ approach would thrust courts into the untenable position of probing the “adequacy” and “authenticity” of the President’s judgments on foreign affairs and national security. Reno v. Am.-Arab AntiDiscrimination Comm., 525 U.S. 471, 491 (1999). It would invite impermissible intrusion on Executive deliberations, which are constitutionally “privilege[d]” against such inquiry, United States v. Nixon, 418 U.S. 683, 708 (1974), as well as litigant-driven discovery that would disrupt the President’s ongoing execution of the laws, see, e.g., Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). Searching for governmental purpose outside official pronouncements and the operative terms of governmental action is fraught with practical “pitfalls” and “hazards” that courts should avoid. Palmer v. Thompson, 403 U.S. 217, 224 (1971).
Even if the Court could look beyond the Order’s official purpose for suspending the entry of certain foreign nationals and refugees, the Court nonetheless may not look to informal statements by the President or his surrogates. See Hamdan v. Rumsfeld, 548 U.S. 557, 623–24 & n.52 (2006). Using comments
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by political candidates to question the stated purpose of later action is particularly problematic. Candidates are not government actors, and statements of what they might attempt if elected, which are often simplified and imprecise, are not “official act[s].” McCreary, 545 U.S. at 862. They are made without the benefit of advice from an as-yet-unformed Administration, and cannot bind elected officials who later conclude that a different course is warranted. See Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002). Indeed, such statements by private persons cannot reveal “the government’s ostensible object,” McCreary, 545 U.S. at 859-60, because it is only an “official objective” of favoring or disfavoring religion gleaned from “readily discoverable fact” that implicates the Clause, id. at 862 (emphasis added); see Salazar v. Buono, 559 U.S. 700, 715 (2010) (plurality opinion). Thus, courts routinely decline to rely on private communications that “cannot be attributed to any government actor” to impute an improper purpose to official action. Glassman v. Arlington Cnty., 628 F.3d 140, 147 (4th Cir. 2010); see Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 (10th Cir. 2008); Modrovich v. Allegheny Cnty., 385 F.3d 397, 411–12 (3d Cir. 2004).
Permitting campaign statements to contradict official pronouncements of the government’s objectives would inevitably “chill political debate during campaigns.” Phelps v. Hamilton, 59 F.3d 1058, 1068 (10th Cir. 1995) (declining to
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rely on campaign statements); Kevorkian v. Thompson, 947 F. Supp. 1152, 1164 (E.D. Mich. 1997). It also would be unworkable, requiring the “judicial psychoanalysis” McCreary repudiated. 545 U.S. at 862; see Mergens, 496 U.S. at 249 (“[W]hat is relevant is the legislative purpose of the statute, not the possibly religious motives of the legislators[.]”). Even considering Plaintiffs’ proffered extrinsic evidence, none of it demonstrates that this Order—adopted after the President took office and took the oath to “preserve, protect and defend the Constitution,” U.S. Const. art. II, § 1, cl. 8, in response to specific, identifiable national security objectives not tied to religion—was driven by religious animus. Plaintiffs’ marquee statement proves the point: they cite a 15-month-old campaign press release advocating a “complete shutdown” on Muslims entering the country. Am. Compl. at ¶¶ 1, 54, 57. That release and other proffered statements reveal nothing about the Order’s aim, because the Order does no such thing. Far from banning Muslims indefinitely, the Order pauses for 90 days entry from just six countries previously identified as posing particular risks, which is subject to religion-neutral exceptions and case-by-case waivers. There is a complete disconnect between Plaintiffs’ imputed purpose and the Order’s actual effect. And even were that not so, “the substantive revisions reflected in [the Order] have reduced the probative value of the President’s [past] statements” and undercut any
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claim that “the predomina[nt] purpose of [the Order] is to discriminate against Muslims based on their religion.” Sarsour, 2017 WL 1113305, at *12.10
In sum, the Order is qualitatively different from actions found to have an impermissible religious purpose under the Establishment Clause in that it references no religious sect or symbol. The Order, for this reason, fails to trigger the “commonsense” presumption that a religious purpose is in play that would require a court to parse the legislative history and sequence of events to find a “legitimizing secular purpose.” See McCreary, 545 U.S. at 869-73. Separation-ofpowers principles and the deference due to immigration determinations by the Executive only underscore the absence of any judicial need or authority to go beyond the text and legal operation of the Order to ascertain its secular purpose.
C. Plaintiffs’ Equal Protection Claim Is Equally Unavailing. Plaintiffs claim that the Order violates the equal protection component of the Fifth Amendment’s Due Process Clause. But again, the petitioner plaintiffs are only entitled, if anything, to review under the “facially legitimate and bona fide”
10 The Order also reflects the considered views of the Secretary of State, the Secretary of Homeland Security, and the Attorney General, who announced the Order and whose motives have not been impugned. The President’s efforts to accommodate courts’ concerns while simultaneously fulfilling his constitutional duty to protect the nation only confirms that the Order’s intention is not to discriminate along religious lines.
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standard of a visa denial, which Plaintiffs do not allege has happened to any of their beneficiary relatives. See Fiallo, 430 U.S. at 796. In any event, where an equal protection claim is made regarding an immigration law, at most rationalbasis review applies. See, e.g., Mathews v. Diaz, 426 U.S. 67, 83 (1976) (using a “wholly irrational” standard); see also Guzman v. U.S. Dep't of Homeland Sec., 679 F.3d 425, 432 (6th Cir. 2012) (using rational basis approach); Ashki v. INS, 233 F.3d 913, 920 (6th Cir. 2000) (same). This is because it is well-established that “unfettered discretion over the admission or expulsion of aliens ‘is a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.’” Almario, 872 F.2d at 150 (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953)); Diaz, 426 U.S. at 81.
Under rational basis scrutiny, a classification must be upheld unless “the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the government’s actions were irrational.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 84 (2000); see also Guzman, 679 F.3d at 432. The Order easily satisfies this standard. The President may draw distinctions based on nationality in the context of immigration and entry into the country so long as the distinction is not wholly irrational. See, e.g., Jean v. Nelson, 727 F.2d 957, 978 n.30 (11th Cir. 1984) (en
32

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banc), aff’d on non-constitutional grounds, 472 U.S. 846 (1985); Ashki, 233 F.3d at 920; Rajah, 544 F.3d at 435; Appiah v. INS, 202 F.3d 704, 710 (4th Cir. 2000).
Here, the President’s determination that nationals from the six countries identified are associated with a heightened risk of terrorism creates a rational basis for the Order. The Order’s time-limited terms, subject to the exceptions and waivers laid out above, are also rationally related to national security. The Second Circuit confronted a similar challenge to a program that “required all nonpermanent resident males over the age of sixteen from a group of countries that were, except for North Korea, predominantly Muslim to appear personally at government facilities for registration and fingerprinting and to present immigration related documents …. Individuals who did not appear risked potential arrest.” Sarsour, 2017 WL 1113305, at *12 (citing Rajah, 554 F.3d at 433). The court noted that the program, in relevant part, targeted “aliens from certain countries selected on the basis of national security criteria” who were “neither citizens nor even lawful permanent residents” and concluded that the program “was plainly a rational attempt to enhance national security.” Rajah, 554 at 439.11
11 And although there was “no way of knowing whether the Program’s enhanced monitoring of aliens has disrupted or deterred attacks…. [S]uch a consideration is irrelevant because an ex ante rather than ex post assessment of the Program is required under the rational basis test.” Rajah, 544 F.3d at 439.
33

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D. Plaintiffs’ Free Speech Claim Is Foreclosed By Mandel. Apart from the more individualized harms discussed above, the organizational Plaintiffs’ bring their own free-speech claims. See, e.g., Am. Compl. ¶¶ 232–42. Essentially, Plaintiffs allege that the Order infringes on their rights to listen to speakers from the affected countries. See id. But nothing in the Order prevents the organizational Plaintiffs from conducting their programming, inviting foreign speakers (who may apply for a waiver if subject to the temporary suspension), or encouraging the free flow of information and ideas. Regardless, Plaintiffs’ claim is squarely foreclosed by Mandel, which itself involved a free speech/association claim. 408 U.S. 753, 769–70 (1972). The Mandel plaintiffs challenged the Attorney General’s decision to deny a waiver of a visa ineligibility to a Belgian journalist. Ultimately, the Mandel Court instructed that “when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts [sha]ll neither look behind the exercise [of Executive] discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.” Id. at 770. The Sixth Circuit has explained Mandel by stating that the Court “ignored the existence of the professors’ First Amendment rights altogether.” Detroit Free Press v. Ashcroft, 303 F.3d 681, 687 (6th Cir. 2002). This
34

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forecloses Plaintiffs’ free-speech claims, particularly because, as discussed above,
the Mandel standard is more than satisfied in this case. See, e.g., Ben-Issa v.
Reagan, 645 F. Supp. 1556, 1562 (W.D. Mich. 1986).
CONCLUSION
For the foregoing reasons, this Court should dismiss Plaintiff’s Complaint.
Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
WILLIAM C. PEACHEY Director
GISELA A. WESTWATER Assistant Director
EREZ REUVENI Senior Litigation Counsel
By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 Facsimile: (202) 305-7000 joshua.press@usdoj.gov
35

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Dated: April 17, 2017

BRIANA YUH Trial Attorney
Attorneys for Defendants

36

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CERTIFICATE OF SERVICE I hereby certify that on April 17, 2017, I electronically filed the foregoing DEFENDANTS’ MOTION TO DISMISS with the Clerk of the Court for the United States District Court for the Eastern District of Michigan by using the CM/ECF system, which will electronically serve all counsel of record.
By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division

 
 2:17-cv-10310-VAR-SDD Doc # 86 Filed 05/08/17 Pg 1 of 62 Pg ID 1153

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al., Plaintiffs, v. DONALD TRUMP, et al., Defendants.

Case No. 2:17-cv-10310-VAR-SDD Hon. Victoria A. Roberts Mag. J. Stephanie D. Davis

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Plaintiffs, by and through their undersigned counsel, oppose Defendants’
Motion to Dismiss. The grounds for this opposition are set forth more fully in the
attached supporting memorandum.

Dated: May 8, 2017

Respectfully submitted,

Counsel for Arab American Civil Rights League

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

/s/ Rula Aoun Rula Aoun (P79119) 4917 Schaefer Rd. Dearborn, MI 48126 (313) 633-0231 rula@acrlmich.org

2:17-cv-10310-VAR-SDD Doc # 86 Filed 05/08/17 Pg 2 of 62 Pg ID 1154

HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC /s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com

VIDA LAW GROUP, PLLC /s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com

Counsel for American Arab Chamber of Commerce

FARHAT & ASSOCIATES, PLLC /s/ Helal Farhat Helal Farhat (P64872) Counsel for the American Arab Chamber of Commerce 6053 Chase Rd. Dearborn, MI 48126 (313) 945-5100 hfarhat@saflegal.com

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) Attorney for Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

Counsel for Hend Alshawish, Salim Alshawish, Yousef Abdullah, Fahmi Jahaf, and Mohamed Alshega

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) Attorney for Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

/s/ Rula Aoun Rula Aoun (P79119) 4917 Schaefer Rd. Dearborn, MI 48126 (313) 633-0231 rula@acrlmich.org

HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC /s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842)

VIDA LAW GROUP, PLLC /s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197)

2:17-cv-10310-VAR-SDD Doc # 86 Filed 05/08/17 Pg 3 of 62 Pg ID 1155

6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com
/s/ Ali K. Hammoud Ali K. Hammoud (P73076) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 ah@hdalawgroup.com

Natalie C. Qandah (P58434) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com

Counsel for American Civil Liberties Union of Michigan, Arab American and Chaldean Council, Arab American Studies Association, Adeeb Saleh, Sofana
Bella, Hilal Alkatteeb and S.A., a minor through her Parent and Next Friend, Hilal Alkatteeb

/s/ Miriam Aukerman Miriam Aukerman (P63165) American Civil Liberties Union Fund of Michigan 1514 Wealthy SE, Suite 242 Grand Rapids, MI 49506 (616) 301-0930 maukerman@aclumich.org

/s/ Samuel R. Bagenstos Samuel R. Bagenstos (P73971) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 (734) 647-7584 sbagen@gmail.com

/s/ Michael J. Steinberg Michael J. Steinberg (P43085) Daniel S. Korobkin (P72842) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org

/s/ Margo Schlanger Margo Schlanger (N.Y. Bar #2704443 (3d Dept)) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 (734) 615-2618 margo.schlanger@gmail.com

2:17-cv-10310-VAR-SDD Doc # 86 Filed 05/08/17 Pg 4 of 62 Pg ID 1156
/s/ Jason C. Raofield Jason C. Raofield (D.C. Bar #463877) Covington & Burling LLP One City Center 850 10th Street, NW Washington, D.C. 20001 (202) 662-5072 jraofield@cov.com

2:17-cv-10310-VAR-SDD Doc # 86 Filed 05/08/17 Pg 5 of 62 Pg ID 1157

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al., Plaintiffs, v. DONALD TRUMP, et al., Defendants.

Case No. 2:17-cv-10310-VAR-SDD Hon. Victoria A. Roberts Mag. J. Stephanie D. Davis

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

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TABLE OF CONTENTS
INTRODUCTION .................................................................................................... 1 STATEMENT OF FACTS ....................................................................................... 2 I. Plaintiffs Plausibly Allege that the Executive Order Is Motivated By
Religious Animus, and that the National Security Justification Is a Pretext. ............................................................................................................ 2 A. The Record Is Replete with Public Statements Confirming that
the Executive Order’s Intent was to Prevent Immigration by Muslims. ............................................................................................... 2 B. The Nationality-Based National Security Justification Was Developed as a Pretext. ........................................................................ 3 C. The Original Executive Order (January 27)......................................... 4 D. The Revised Executive Order (March 6) ............................................. 5 E. The National Security Justification Is a Sham. .................................... 7 STANDARD OF REVIEW ...................................................................................... 8 ARGUMENT .......................................................................................................... 10 PLAINTIFFS’ CLAIMS ARE JUSTICIABLE. .......................................... 10 A. The Individual Plaintiffs Have Standing............................................ 10 1. Stigmatic Harm ........................................................................ 11 2. Separation of Families ............................................................. 15 3. Economic Harm ....................................................................... 19 B. The Organizational Plaintiffs Have Standing. ................................... 19 C. Plaintiffs’ Claims are Ripe for Adjudication. .................................... 23

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THE FACT THAT THIS IS AN IMMIGRATION CASE DOES NOT DEPRIVE THE COURT OF ITS POWER TO ADDRESS CONSTITUTIONAL VIOLATIONS. ......................................................... 24
A. The Immigration Context Does Not Insulate Constitutional Violations from Judicial Review........................................................ 24
B. Even If Mandel Applies, Whether the Asserted National Security Purpose Is Bona Fide Is a Question of Fact that Cannot Be Decided on a Motion to Dismiss. ....................................................... 26
C. Mandel Does Not Apply. ................................................................... 28
THE COMPLAINT STATES PLAUSIBLE CLAIMS FOR VIOLATIONS OF PLAINTIFFS’ CONSTITUTIONAL RIGHTS. ........... 30
A. The Complaint States an Establishment Clause Claim. ..................... 30
1. Plaintiffs Have Plausibly Alleged That The Purpose of the Executive Order Is Religious, Not Secular.............................. 31
2. Plaintiffs Have Plausibly Alleged that the Effect of the Executive Order Is to Endorse Religion. ................................. 34
3. This Court Is Entitled to Consider All Relevant Evidence of the Purpose and Effect of the Revised EO. ......................... 37
B. The Complaint States an Equal Protection Claim.............................. 40
C. The Complaint States a Claim for Violation of Plaintiffs’ Right to Free Speech and Association. ........................................................ 44
CONCLUSION ....................................................................................................... 45

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TABLE OF AUTHORITIES
Page(s)
Cases
ACLU of Ky. v. Grayson Cty., 591 F.3d 837 (6th Cir. 2010) ..............................................................................34
ACRL v. Trump, ECF #8 (Feb. 2, 2017) ..........................................................................................5
Adland v. Russ, 307 F.3d 471 (6th Cir. 2002) ..............................................................................13
Allen v. Wright, 468 U.S. 737 (1984) (abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014)) .....................12
Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536 (6th Cir. 2004) ..................................................................19, 20, 22
Ashcroft v. Iqbal, 556 U.S. 662 (2009)..............................................................................................9
Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) ..........................................................................14
Aziz v. Trump, No. 17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017)....................5, 25, 27
Bangura v. Hansen, 434 F.3d 487, 496 (6th Cir. 2006) ......................................................................18
Barry v. Lyon, 834 F.3d 706 (6th Cir. 2016) ........................................................................20, 21
Bays v. City of Fairborn, 668 F.3d 814 (6th Cir. 2012) ..............................................................................45
Brownell v. We Shung, 352 U.S. 180 (1956)............................................................................................18

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Cardenas v. United States, 826 F.3d 1164 (9th Cir. 2016) ............................................................................26
Catholic League for Religious & Civil Rights v. City & Cty. of San Francisco, 624 F.3d 1043 (9th Cir. 2010) (en banc)......................................................11, 14
Chae Chan Ping v. United States, 130 U.S. 581 (1889)............................................................................................27
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)............................................................................................37
City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985)............................................................................................41
Clinton v. City of New York, 524 U.S. 417 (1998)............................................................................................19
Courtney v. Smith, 297 F.3d 455 (6th Cir. 2002) ..............................................................................17
Darweesh v. Trump, No. 17-cv-480, 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017) ...............................5
Edwards v. Aguillard, 482 U.S. 578 (1987)............................................................................................38
Epperson v. Arkansas, 393 U.S. 97 (1968)..............................................................................................38
F.R.C. Int’l, Inc. v. United States, 278 F.3d 641 (6th Cir. 2002) ................................................................................8
Fiallo v. Bell, 430 U.S. 787 (1977)..........................................................................25, 29, 40, 41
Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320 (6th Cir. 2007) ..........................................................................9, 10
Glassman v. Arlington City, 628 F.3d 140 (4th Cir. 2010) ..............................................................................39

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Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003) ..........................................................................38
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)............................................................................................38
Handy-Clay v. City of Memphis, 695 F.3d 531 (6th Cir. 2012) ................................................................................9
Harbin-Bey v. Rutter, 420 F.3d 571 (6th Cir. 2005) ..............................................................................41
Hawai’i v. Trump, No. 17-00050, 2017 WL 1167383 (D. Haw. Mar. 29, 2017)...........25, 31, 33, 35
Hawai’i v. Trump, No. 17-00050, 2017 WL 1011673 (D. Haw. Mar. 15, 2017)......................passim
Hernandez v. CIR, 490 U.S. 680 (1989)............................................................................................37
INS v. Chadha, 462 U.S. 919 (1983)............................................................................................25
INS v. Pangilinan, 486 U.S. 875 (1988)............................................................................................27
Int’l Refugee Assistance Project (“IRAP”) v. Trump, No. 17- 0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) .........................passim
Kerry v. Din, 135 S. Ct. 2128, 2141 (2015)........................................................................26, 28
Kleindienst v. Mandel, 408 U.S. 753 (1972).....................................................................................passim
Kowalski v. Tesmer, 543 U.S. 125 (2004)............................................................................................20
Larson v. Valente, 456 U.S. 228, 255 (1982)....................................................................................31

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Lemon v. Kurtzman, 403 U.S. 602 (1971)................................................................................30, 34, 37
United States ex rel. London v. Phelps, 22 F.2d 288 (2d Cir. 1927) .................................................................................17
Lowe v. SEC, 472 U.S. 181 (1985)............................................................................................26
Mandel. Bertrand v. Sava, 684 F.2d 204 (2d Cir. 1982) ...............................................................................27
McCormick v. Miami Univ., 693 F.3d 654 (6th Cir. 2012) ................................................................................9
McCreary Cty. v. ACLU, 545 U.S. 844 (2005).....................................................................................passim
Modrovich v. Allegheny Cty.. 385 F.3d 397 (3d Cir. 2004) ...............................................................................39
Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599 (4th Cir. 2012) ..............................................................................13
Mulligan v. Schultz, 848 F.2d 655 (5th Cir. 1988) ..............................................................................17
N.E. Fla. Chapter of Assoc’d Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993)............................................................................................24
Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) ............................................................................27
Nguyen v. INS, 533 U.S. 53 (2001)..............................................................................................41
Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320 (6th Cir. 1990) ..............................................................................10
Parsons v. U.S. Dep’t of Justice, 801 F.3d 701 (6th Cir. 2015) ........................................................................10, 11

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Payne-Barahona v. Gonzales, 474 F.3d 1 (1st Cir. 2007)...................................................................................17
Peoples Rights Org. v. City of Columbus, 152 F.3d 522 (6th Cir. 1998) ..............................................................................41
Phelps v. Hamilton, 59 F.3d 1058 (10th Cir. 1995) ............................................................................39
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) ...................................................................36, 41, 42
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)......................................................................................23, 34
Sarsour v. Trump, No. 17-cv-120, 2017 WL 1113305 (E.D. Va. Mar. 24, 2017) ....................passim
Smith v. City of Cleveland Heights, 760 F.2d 720 (6th Cir. 1985) ..............................................................................13
Smith v. Jefferson Cty. Bd. of Sch. Comm’rs, 641 F.3d 197 (6th Cir. 2011) (en banc) ..............................................................18
Smith v. Jefferson Cty. Bd. of Sch. Comm’rs, 788 F.3d 580 (6th Cir. 2015) ..............................................................................34
Stanley v. Georgia, 394 U.S. 557 (1969)............................................................................................44
United States v. Chem. Found., 272 U.S. 1 (1926)................................................................................................40
Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982)............................................................................................14
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)......................................................................................42, 43
Washington v. Davis, 426 U.S. 229 (1976)............................................................................................42

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Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) .....................................................................passim
Washington v. Trump, No. 17-cv-141, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017) ............................5
Weinbaum v. City of Las Cruces, 541 F.3d 1017 (10th Cir. 2008) ..........................................................................39
Zadvydas v. Davis, 533 U.S. 678 (2001)............................................................................................24
Statutes 8 U.S.C. § 1152(a)(1)(A) .........................................................................................29 8 U.S.C. § 1187........................................................................................................36 Other Authorities Black’s Law Dictionary (10th ed. 2014) .................................................................26

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INTRODUCTION Although other courts have enjoined the Revised Executive Order (“Revised EO”) after finding that plaintiffs had satisfied the much more stringent standard of establishing likelihood of success on the merits, Defendants nevertheless ask this Court to conclude that Plaintiffs have not even plausibly alleged a claim sufficient to overcome a motion to dismiss. Even the lone court that declined to enjoin the Revised EO did so only because “[p]laintiffs have not made a clear showing that they are likely to succeed on the merits.” Sarsour v. Trump, No. 17-cv-120, 2017 WL 1113305, at *12 (E.D. Va. Mar. 24, 2017). It is therefore no surprise that much of Defendants’ motion to dismiss is spent ignoring and resisting the well-pleaded factual allegations of the Second Amended Complaint (“SAC” or “Complaint”). For example, the Complaint contains extensive factual allegations showing that the Revised EO is based on religious animus and that the national security interests identified by Defendants are mere pretext. Ignoring those allegations, Defendants repeatedly insist that “the Order is based solely on national security interests.”1 See Br. Pg. ID 1036. Thus, the motion is
1 Courts have reached the opposite conclusion. See, e.g., Hawai’i v. Trump, No. 1700050, 2017 WL 1011673, at *14 (D. Haw. Mar. 15, 2017) (“Any reasonable, objective observer would conclude . . . that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.” (citations omitted)).
1

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premised on assertions directly at odds with Plaintiffs’ detailed factual allegations, which must be accepted as true for purposes of this motion.
Next, Defendants argue that it is irrelevant whether the Order was motivated by religious animus or whether its after-the-fact justification is pretextual. According to Defendants, because the Revised EO deals with immigration and makes no express mention of religion, it is immune from judicial review. As other courts reviewing the Executive Orders have universally held, however, the Constitution is not so feeble. The Court should deny Defendants’ motion to dismiss.
STATEMENT OF FACTS I. Plaintiffs Plausibly Allege that the Executive Order Is Motivated By
Religious Animus, and that the National Security Justification Is a Pretext. A. The Record Is Replete with Public Statements Confirming that the
Executive Order’s Intent was to Prevent Immigration by Muslims. Beginning in December 2015, then-Candidate Trump called for a “total and complete shutdown of Muslims entering the United States.” SAC ¶¶ 1, 54. In a statement that remains on his website to this day, he insisted this Muslim ban was necessary because “there is great hatred towards Americans by large segments of the Muslim population.” Id. ¶ 56. This followed a series of interviews in which Candidate Trump said he would shut down mosques and require Muslims in the United States to register with the government. Id. ¶ 61.
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The ban on Muslim immigration became a cornerstone of the Trump campaign. The rationale was simple: “Islam hates us,” and “we can’t allow people coming into this country who have this hatred of the United States.” Id. ¶ 63. When asked during a debate whether his comments referred to all Muslims worldwide, he responded, “I mean a lot of them!” Id. ¶ 64. “There is tremendous hate. Where large portions of a group of people, Islam, large portions want to use very, very harsh means.” Id. He also accused “Muslim communities” of refusing to “turn in the people who they know are bad―and they do know where they are.” Id. ¶ 67.
B. The Nationality-Based National Security Justification Was Developed as a Pretext.
Following widespread condemnation of his proposed Muslim ban, Candidate Trump sought to develop a pretextual justification to ban entry by Muslims. He asked Rudolph Giuliani to put together a “commission” to help him design a Muslim ban, and to “show [him] the right way to do it legally.’” Id. ¶¶ 69-70. The commission recommended that nationality be used as a proxy for religion. Id. ¶¶ 7172. As a result, Candidate Trump modified his proposal: “People were so upset when I used the word ‘Muslim’ . . . . And I’m okay with that, because I’m talking territory instead of Muslim.” Id. ¶ 73. But when asked whether this was a “rollback” from his proposed “Muslim ban,” he said “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territory.” Id. Shortly before the
3

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election, Candidate Trump said his proposed “Muslim ban” had “morphed into extreme vetting from certain areas of the world.” Id. ¶ 76.
Following the election, President-elect Trump again confirmed his intentions. For example, in December 2016, when asked if he had changed his plan to “ban Muslim immigration,” he stated: “Hey, you’ve known my plans all along and it’s, they’ve proven to be right. 100 percent correct.” Id. ¶ 84.
C. The Original Executive Order (January 27) President Trump wasted no time. Just seven days after taking office, he issued an Executive Order based on the approach suggested by the Giuliani commission. It banned entry by nationals of seven predominantly Muslim countries for 90 days, and provided a mechanism to extend the ban thereafter. Id. ¶¶ 94, 96. It also suspended the U.S. Refugee Assistance Program for 120 days, lowered the annual number of refugee admissions for fiscal year 2017 from 110,000 to 50,000, created a preference for refugees of minority religions, and banned Syrian refugees indefinitely. Id. ¶¶ 98104. Moreover, the White House bypassed regular channels for input from other components of the Executive Branch, including the Secretaries of State, Defense, and Homeland Security. Id. ¶ 110-113. The Executive Order went into effect immediately. Id. ¶ 121. Chaos ensued, resulting in widespread civil rights abuses at airports, demonstrations nationwide,
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and emergency litigation across the country. Id. ¶ 4. The next day, a district court in New York issued a nationwide stay of deportations under the Order. Darweesh v. Trump, No. 17-cv-480, 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017). This Court and other district courts soon enjoined significant portions of the Order. ACRL v. Trump, ECF #8 (Feb. 2, 2017); Aziz v. Trump, No. 17-cv-116, 2017 WL 580855, at *8-9 (E.D. Va. Feb. 13, 2017) (holding that the Order likely violated the Establishment Clause); Washington v. Trump, No. 17-cv-141, 2017 WL 462040, at *2 (W.D. Wash. Feb. 3, 2017) (enjoining the Order nationwide).
The Government appealed the injunction entered in Washington v. Trump. SAC ¶ 133. Following oral argument, the Ninth Circuit denied the Government’s motion for a stay pending appeal, noting that “although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.” Washington v. Trump, 847 F.3d 1151, 1164 (9th Cir. 2017).
D. The Revised Executive Order (March 6) After the Ninth Circuit declined to order a stay, the White House announced that a revised executive order would be issued. President Trump stated that “we can tailor the order to [the Ninth Circuit] decision and get just about everything, in some
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ways, more.” SAC ¶ 140. Press Secretary Sean Spicer confirmed that “the goal is obviously to maintain the way that we did it the first time.” Id. ¶ 150. And senior advisor Stephen Miller said the revised order would contain “mostly minor, technical differences” and achieve “the same, basic policy outcome.” Id. ¶ 141.
That is exactly what President Trump did when he issued the Revised EO on March 6. Indeed, President Trump himself described the new order as a “watereddown version of the first order.” Id. ¶ 182. Thus, the Revised EO, like the Original EO, banned entry for 90 days by individuals from six of the original seven overwhelmingly Muslim countries, which have populations ranging from 90.7% to 99.8% Muslim. Id. ¶ 161. It again established procedures to extend the ban (or make it permanent). Id. ¶ 165. And it shut down the refugee program for 120 days, and reduced the annual number of refugees from 110,000 to 50,000. Id. ¶ 169.
In attempt to avoid further judicial scrutiny, however, several changes were made. Most obviously, to facilitate the Defendants’ claim of facial neutrality, the express minority-religion preference and indefinite Syrian refugee ban were both removed. Id. ¶ 171. Despite the purported national security justification, individuals with recently approved visas were exempted, as were lawful permanent residents, dual nationals, and certain other non-citizens. Id. ¶ 163. And to create the appearance of agency consultation, the Defendants papered the file with a last-minute letter from
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the Departments of Justice and Homeland Security. Br. Pg. ID 1017 (citing March 6 letter as proof that the Revised EO was issued “at the urging of the Attorney General and Secretary of Homeland Security”).
E. The National Security Justification Is a Sham. The revised version of the executive order asserted the same rationale as the original—i.e., providing time for a review of visa-issuance and refugee admissions procedures—even though some 48 days had already passed between implementation of the two orders. The Revised EO now identified factual information purportedly justifying a ban on entry by individuals from the six designated countries.2 However, as Plaintiffs have alleged in detail, in February 2017, President Trump had ordered the Department of Homeland Security (“DHS”) to collect intelligence that could be used to justify his actions. SAC ¶¶ 142-44. The effort backfired, because the resulting intelligence reports expressly refuted the purported national security justification. Id. ¶ 145 (concluding that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity” and, in any event, only 3 of the 82 foreign-born individuals involved in terrorist activities in the U.S. since 2011 were
2 The Revised EO pointed to only two concrete examples of persons who have committed terrorism-related crimes in the U.S. after either entering legally on visas or as refugees: a case involving Iraqi nationals (who are no longer banned) and a case involving a Somali native who came to the U.S. as a child. Revised EO § 1(h).
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from one of the six designated countries); id. ¶ 146 (concluding that “most foreignborn, U.S.-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry”) (emphasis added).
Even intelligence reports demonstrating the absence of any correlation between terrorism and individuals from the six countries could not deter President Trump. Thus, the Revised EO simply ignored those reports, and instead excerpted passages from a 2015 State Department report describing conditions in the six countries generally, and then declared without any basis that those conditions “demonstrate why their nationals continue to present heightened risks to the security of the United States.” Revised EO § 1(e).
In sum, the operative facts here are those alleged in the Complaint. Those facts are that the Revised EO was motivated by religious animus and that the national security justification is a mere pretext.
STANDARD OF REVIEW Defendants move for dismissal under Rule 12(b)(1) and 12(b)(6). See Br. Pg. ID 1020-21.3 In considering a Rule 12(b)(6) motion to dismiss for failure to state a
3 Judgment on the pleadings pursuant to Rule 12(c), which Defendants also seek, is plainly improper, since Defendants have not yet answered the Complaint. See, e.g., F.R.C. Int’l, Inc. v. United States, 278 F.3d 641, 642 (6th Cir. 2002).
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claim, a court must “assume the veracity of [plaintiff’s] well-pleaded factual allegations.” McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The factual allegations must merely “state a claim to relief that is plausible on its face,” by “allow[ing] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” based on the court’s “judicial experience and common sense.” Iqbal, 556 U.S. at 678–79. All reasonable inferences must be drawn in the plaintiff’s favor. HandyClay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012).
Here, the inquiry under Rule 12(b)(1) collapses into the Rule 12(b)(6) inquiry. Defendants largely make legal arguments that the Court lacks jurisdiction, insisting Plaintiffs lack standing because their claims are either unripe or are not directed at the Plaintiffs themselves. See Br. Pg. ID 1022-27. In considering such a “facial attack on [] subject-matter jurisdiction,” the Court must “take[] the allegations in the complaint as true,” giving them the same deference they would be afforded under Rule 12(b)(6). Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). To the extent Defendants challenge the factual basis of subject matter jurisdiction by arguing, for instance, that the Revised EO is not motivated by anti-Muslim animus, see Br. Pg. ID 1025-27, their argument “implicates an element of the cause of action,” e.g. whether there is an Establishment Clause violation.
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Gentek, 491 F.3d at 330.4 Therefore, the Court must accept Plaintiffs’ facts as true, “find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff’s claim.” Id. (citation omitted) (emphasis in original).
ARGUMENT PLAINTIFFS’ CLAIMS ARE JUSTICIABLE. To have standing, Plaintiffs must show (1) an “injury in fact”; (2) that “the injury fairly can be traced to the challenged action”; and (3) that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 710, 713, 715 (6th Cir. 2015) (internal quotation marks omitted). Defendants do not even attempt an individualized review of the stigmatic harms, financial losses, or injuries from family separation that the complaint details for each Plaintiff. SAC ¶¶ 213-343. A. The Individual Plaintiffs Have Standing. The individual Plaintiffs readily satisfy these requirements. These Plaintiffs suffer three distinct injuries: stigma, family separation, and economic cost. Each of these injuries is directly traceable to the Revised EO and can be redressed by an
4 If the Court concludes examination of jurisdictional facts is necessary to resolve certain of Defendants’ arguments, the Court should allow discovery and invite submission of evidence, as the “trial court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts.” Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
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injunction. In other cases challenging the Executive Orders, courts have found standing based on such injuries. See Washington, 847 F.3d at 1159; Sarsour, 2017 WL 1113305, at *5; Int’l Refugee Assistance Project (“IRAP”) v. Trump, No. 170361, 2017 WL 1018235, at *5-6 (D. Md. Mar. 16, 2017); Hawai’i v. Trump, No. 17-00050, 2017 WL 1011673, at *9-10 (D. Haw. Mar. 15, 2017).
1. Stigmatic Harm The Executive Orders stigmatize Muslims, thereby harming the individual Muslim Plaintiffs and the Muslim members and clients of the organizational Plaintiffs. SAC ¶¶ 18-34; see also Parsons, 801 F.3d at 712 (“Stigmatization . . . constitutes an injury in fact for standing purposes.”). “The Executive Orders convey an official message of disapproval and hostility towards Muslims, making clear that the government deems them outsiders, not full members of the political community.” SAC ¶ 213. The Revised EO, in particular, conveys to Plaintiffs the message “that the United States discriminates against individuals who share their ethnicity and who hold the same religious beliefs, including members of their own families.” Id. ¶ 214. The Revised EO is thus “a daily experience of contact with a government that officially condemns one’s religion.” Catholic League for Religious & Civil Rights v. City & Cty. of San Francisco, 624 F.3d 1043, 1052 n.33 (9th Cir. 2010) (en banc). As members of the religion that is singled out for particular condemnation—and as
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individuals denied the opportunity to live with their families in the United States
because of it—the individual Plaintiffs have been “personally denied equal treatment
by the challenged discriminatory conduct.” Allen v. Wright, 468 U.S. 737, 755
(1984) (abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377 (2014)) (internal quotation marks omitted); see
also Hawai’i, 2017 WL 1011673, at *16 (stigma provided standing to challenge the
Revised EO); Sarsour, 2017 WL 1113305, at *5 (stigma combined with family
separation and travel limitations gave standing to challenge the Revised EO).
Because stigma pervades the entire Revised EO, Defendants are wrong to
suggest that Plaintiffs’ standing is limited to challenging Section 2(c).5 Br. Pg. ID
5 Plaintiffs specially allege that “the March 6 Order” (not just one subsection) “reinforces stereotypes about Muslims and associates Muslims with violence, bigotry and hatred, thereby discriminating against them and inflicting stigmatic and dignitary harms, among other types of injury.” SAC ¶ 177; see also id. ¶¶ 213-15. Other sections of the Revised EO are arguably even more explicit than Section 2(c) in denigrating Muslims. For example, Section 11 of the Revised EO orders publication of information about “foreign nationals” involved in “so-called ‘honor killings,’” echoing “then-Candidate Trump’s broad statements disparaging Islam and Muslims.” Id. ¶ 178. Moreover, many of the injuries experienced by the organizational plaintiffs, their members, and their clients stem from the refugee provisions in Section 6 of the Revised EO. Id. ¶¶ 218-19 (ACRL members separated from family due to refugee provision); ¶ 229 (ACLU members unable to provide assistance to refugees as matter of religious conviction); ¶ 246 (Chamber’s members hire refugees, and Revised EO makes it more difficult and expensive to recruit, hire, and retain the best employees); ¶ 248 (Chamber’s members include refugee-run businesses whom the Revised EO “subject[s] to baseless suspicion, scrutiny, and
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1014. In Smith v. City of Cleveland Heights, 760 F.2d 720, 722 (6th Cir. 1985), the Sixth Circuit held that “noneconomic ‘stigmatic’ injury” gave standing to a black resident to challenge a city policy that deterred other African Americans from moving into the community. The court concluded that the city’s action had “label[ed]” African Americans “as undesirable for purposes of housing policy” and thus forced “the black citizen [to] live on a daily basis with a sense of disrespect officially established as law.” Id. at 722-23. So too here.
Because “one of the core objectives of modern Establishment Clause jurisprudence has been to prevent the State from sending a message to non-adherents of a particular religion ‘that they are outsiders, not full members of the political community,’” stigmatic injury is particularly important in Establishment Clause cases. Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 607 (4th Cir. 2012) (quoting McCreary Cty. v. ACLU, 545 U.S. 844, 860 (2005)) (emphasis in Moss). An Establishment Clause plaintiff has standing if he has experienced “direct and unwelcome contact” with an exclusionary religious message. Adland v. Russ, 307 F.3d 471, 478 (6th Cir. 2002). Where, as here, the Government has gone further and officially condemned Plaintiffs’ religion, that action goes “beyond the ‘personal and
social isolation”); ¶¶ 252, 256-62 (describing harm to ACC’s refugee clients and ACC’s refugee-assistance programs).
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unwelcome contact’ that suffices for standing.” Awad v. Ziriax, 670 F.3d 1111, 1122 (10th Cir. 2012); see also Catholic League, 624 F.3d at 1052 (plaintiffs had standing to challenge city council resolution based on its anti-Catholic message).
Contrary to Defendants’ suggestion (Br. Pg. ID 1024-25), this case is nothing like Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982). There the plaintiffs challenged a transfer of property to a religious organization with which they had no dealings; the transfer did not target or affect them in any way. Id. at 486-87. They “claim[ed] nothing” in the way of injury besides the constitutional violation itself. Id. at 485. The Court held that the presumed “psychological consequence” produced by the mere “observation of conduct with which one disagrees” was, by itself, insufficient for standing. Id. Unlike in Valley Forge, Plaintiffs here are challenging an action that targets their religion for condemnation. See Awad, 670 F.3d at 1122-23 (official action that “condemns [plaintiff’s] religious faith and exposes him to disfavored treatment” goes “significantly beyond a ‘psychological consequence’ from disagreement with observed government conduct”); Catholic League, 624 F.3d at 1052 (stigmatic injury is sufficiently “concrete harm where the ‘psychological consequence’ is produced by government condemnation of one’s own religion or endorsement of
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another’s in one’s own community”). Defendants’ reliance on cases where there was no such condemnation is misplaced.6
2. Separation of Families The Revised EO kept the individual Plaintiffs apart from close family members—including spouses, children, and a parent—some of whom remain in conflict-torn areas. Plaintiffs Hend and Salim Alshawish are unable to live in the United States with their 11- and 15-year-old Yemeni-citizen children, because the Revised EO bars the children from entering the country. SAC ¶¶ 275-89. Mr. Alshawish (a U.S. citizen) is thus living in Egypt to care for those children, while Ms. Alshawish (a lawful permanent resident of the United States) remains in this country to care for their two younger U.S. citizen children. Id. ¶¶ 287-89. Plaintiff Yousef Abdullah (a U.S. citizen) was impeded from moving to the United States with his wife Hanan Alafif, a citizen of Yemen whom the Revised EO barred from entering the country; Ms. Alafif was thus forced to live separately not only from her husband but from her six- and three-year-old U.S. citizen children, for whom Mr. Abdullah is the caregiver. Id. ¶¶ 303-12. Plaintiff Adeeb Saleh (a U.S. citizen) cannot
6 See Br. Pg. ID 1024-25 (citing Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011) (challenge to tuition tax credit); Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815 (7th Cir. 2014) (challenge to parsonage tax exemption); Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (9th Cir. 2010) (challenge to recitation of Pledge of Allegiance)).
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return to the country with his wife Amira Aleshawi (a Yemeni citizen); Mr. Saleh, Ms. Aleshawi, and their infant son currently reside in Indonesia, while their three U.S. citizen daughters remain in the United States with other family members. Id. ¶¶ 313-22. Plaintiff Mohamed Alshega (a U.S. citizen) was prevented from bringing to the United States his son, a citizen of Yemen whom the Revised EO barred from entering the country. Id. ¶¶ 297-302. Plaintiff Hilal Alkatteeb (a U.S. citizen) and his two-year-old daughter, Plaintiff S.A. (a U.S. citizen), were impeded from living in the United States with Mr. Alkatteeb’s wife and S.A.’s mother, Rim Shamsan (a Yemeni citizen). ¶¶ 328-40. Plaintiff Fahmi Jahaf (a U.S. citizen) cannot live in the United States with his non-citizen wife, because the Revised EO barred her from receiving a visa to enter the country. Id. ¶¶ 291-96. And Plaintiff Sofana Bella (a U.S. citizen) was forced to postpone her wedding to her fiancé (a citizen of Sudan) because the Revised EO barred him from entering the country. Id. ¶¶ 323-27.
Defendants suggest that the family separation resulting from the Revised EO does not constitute sufficient injury. As other courts considering the EOs have found, however, this injury is legally cognizable. See IRAP, 2017 WL 1018235, at *6 (“Individual Plaintiffs who seek the entry of family members from the Designated Countries into the United States face the same harm of continuing separation from their respective family members”); Hawai’i, 2017 WL 1011673, at *9 (finding
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standing for American citizen plaintiff because “his mother-in-law will be unable to enter the country”); Washington, 847 F.3d at 1159 (finding standing for challenge to
Original EO because it separated university students from “their families abroad”).7 These decisions are fully consistent with other case law finding that immigration decisions denying an American citizen the opportunity to live in the United States
with his family create sufficient injury to confer standing. See, e.g., Payne-Barahona v. Gonzales, 474 F.3d 1, 2 (1st Cir. 2007).
Defendants incorrectly argue that the doctrine of consular nonreviewability bars the individual Plaintiffs from asserting injuries based on the separation from
their families. Br. Pg. ID 1022-1023. The individual Plaintiffs “are not challenging the discretion of consuls” in ruling on visa applications. Mulligan v. Schultz, 848 F.2d 655, 657 (5th Cir. 1988). Instead, they are attacking a categorical policy
decision embodied in the Revised EO—a policy decision that causes them injury. Consular nonreviewability does not bar challenges to such policies. See id.8
7 The Sixth Circuit has said that even a 700-mile “geographic separation from [one’s] family,” with “the associated inconvenience and expense” of traveling “each weekend to be with them, might be a sufficient injury” under Article III. Courtney v. Smith, 297 F.3d 455, 460 (6th Cir. 2002). Here, the geographic separation is thousands of miles; it requires crossing an international border; and the Revised EO would completely prevent many of the Plaintiffs from even visiting their family. 8 None of Defendants’ cases (Br. Pg. ID 1023) are to the contrary. Indeed, the court in United States ex rel. London v. Phelps, 22 F.2d 288, 289-90 (2d Cir. 1927), considered the merits of a categorical challenge to an executive order requiring
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Defendants’ arguments that Plaintiffs lack third-party standing are similarly misplaced. Br. Pg. ID 1026-27. Defendants ignore that the individual Plaintiffs are asserting their own constitutional rights not to be condemned and targeted for unequal treatment because of their religion and ethnicity, and the organizational Plaintiffs are asserting those same rights for their members and clients. See, e.g., SAC ¶¶ 213-15, 222, 229, 247-48, 253. Thus the fact that the individual Plaintiffs, as well as members and clients of the organizational Plaintiffs, are Muslim is not “entirely immaterial” (cf. Br. Pg. ID 1027) to the harm they suffer, but rather central the effect that Defendants’ discriminatory EO has on them. Smith v. Jefferson Cty. Bd. of Sch. Comm’rs, 641 F.3d 197, 207 (6th Cir. 2011) (en banc), on which Defendants rely, involved no such condemnation. There, teachers sued to challenge their school board’s decision—which in no way targeted the teachers’ religion—to move certain services to a religious school at public expense. See id. at 202-04, 207. The contrast with the direct and targeted condemnation of the religion of Plaintiffs here is striking.
Canadian entrants to obtain a visa, much as Plaintiffs ask the Court to do here. In Brownell v. We Shung, the Court never analyzed consular nonreviewability, despite glancing at the issue in two footnotes. 352 U.S. 180, 184 n.3, 185 n.6 (1956). Bangura v. Hansen is inapposite, because it too did not address consular nonreviewability, and, in any event, Plaintiffs are not asserting a claim based on a substantive due process right to marry. 434 F.3d 487, 496 (6th Cir. 2006).
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3. Economic Harm The EOs have caused the individual Plaintiffs significant financial loss. See Clinton v. City of New York, 524 U.S. 417, 432 (1998) (financial loss qualifies as “injury in fact”). Mr. Alshawish is unable to work at his job at a U.S. grocery store because he is abroad caring for his Yemeni-citizen children. SAC ¶ 290. Mr. Abdullah must take significant unpaid time away from work to obtain medical treatment for his three-year-old U.S. citizen child, who has Type I diabetes; if his wife were allowed to enter the country, he could avoid that expense. Id. ¶ 306. Mr. Saleh has depleted more than $50,000 in savings and incurred substantial debt to travel to his family abroad. Id. ¶ 320. And Mr. Alkatteeb has spent approximately $70,000 to join his family in Malaysia, where neither he nor his wife has permission to work. Id. ¶ 332. B. The Organizational Plaintiffs Have Standing. Defendants make little effort to challenge the standing of the five organizational Plaintiffs. An organization may have standing to sue in three ways. First, it “may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy.” Am. Canoe Ass’n, Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 544 (6th Cir. 2004) (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)). Second, a
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membership association may have standing to sue as a representative of its members. Id. at 541. An organization has associational standing if its “members have standing; if the interests at stake are relevant to the organization’s purpose; and if the claims and relief do not require the participation of individual members.” Barry v. Lyon, 834 F.3d 706, 716 (6th Cir. 2016). Finally, an organization has standing to assert the rights of its clients where the organization and the clients have a sufficiently close relationship, and the clients face a “hindrance” in protecting their own interests. Kowalski v. Tesmer, 543 U.S. 125, 130-134 (2004).
Each of the Plaintiff organizations has members who have been condemned, stigmatized, and otherwise materially injured by the Revised EO. The Revised EO condemns and stigmatizes Muslim members of all of the plaintiff organizations. SAC ¶¶ 213-15, 222, 247-48, 253. It also interferes with the ability of ACLU and AASA members to hear from and associate with individuals from the Designated Countries. Id. ¶¶ 230-41, 268, 271. It interferes with the ability of ACLU members “to live out the teaching of their faiths, to interact with co-religionists and members of other faiths, and to provide assistance to immigrants and refugees as a matter of religious conviction.” Id. ¶ 229. It has limited the ability of members of the ACRL and the Chamber to travel outside of the country, for fear that they will not be readmitted once they leave. Id. ¶¶ 220, 250. It has interfered with the ability of
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members of the Chamber, the ACC, and the AASA to conduct business. Id. ¶¶ 245, 250, 262, 273. And it has interfered with hiring, contracting, and student recruitment by members of the Chamber and the AASA. Id. ¶¶ 246, 268, 270. See Washington, 847 F.3d at 1160-61 (finding similar harms to proprietary interests of state universities sufficient for standing). These injuries are directly related to the missions of the plaintiff organizations. And “because the declaratory and injunctive relief sought pertains to the [Defendants’] policy as a whole,” the case “does not require the participation of individual members to resolve.” Barry, 834 F.3d at 716.
Two of the organizational Plaintiffs, ACRL and ACC, have clients who have been injured by the Revised EO. SAC ¶¶ 222, 252-53, 257-60, 263. These clients “face numerous hurdles to bringing suit in their own name, including language and cultural barriers, lack of financial resources, rising Islamophobia which would subject them to intense scrutiny if they participate in litigation, and fear of retaliation by the Defendants.” Id. ¶¶ 224, 264; see also id. ¶¶ 18, 21.
The Revised EO also harms the organizations directly, giving them standing in their own right. The EO has adversely affected the Chamber’s export certification and legalization services, and undermined its mission of encouraging business relationships between the U.S. and Arab nations. SAC ¶¶ 247, 249. The Revised EO, “by restricting the flow of clients for ACC’s programs and affecting funding for
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these programs, will have a significant financial impact on ACC;” ACC anticipates laying off staff and may not renew leases for offices housing the threatened programs. Id. ¶¶ 255-62. Plaintiffs ACRL, ACLU, and ACC have all had to devote time and resources to responding to the disruptions the Revised EO has caused to their members, clients, and communities. Id. ¶¶ 220, 223, 226, 254, 259-60. Such diversion of resources adversely affects the organizations’ interests and thus supports standing. See Am. Canoe, 389 F.3d at 536, 546-47.
The Revised EO also violates the organizational Plaintiffs’ rights under the Free Speech Clause of the First Amendment. The EO “directly interferes with [Plaintiff] ACLU’s ability to plan for and hold” a “Voices of the Muslim Ban” event that it is organizing, because the EO “will either prevent the ACLU from bringing in the ACLU’s desired speakers or will create obstacles to bringing in those speakers that would not exist for speakers who are not from the Muslim-majority Designated Countries.” SAC ¶¶ 236, 237. And the EO impedes plaintiff AASA “from inviting scholars from the Designated Countries to present at academic conferences and engage in other collaborative research and scholarship projects.” Id. ¶ 271. Defendants essentially acknowledge that the organizational Plaintiffs have standing to assert these claims. See Br. Pg. ID 1027.
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C. Plaintiffs’ Claims are Ripe for Adjudication. Defendants argue that Plaintiffs’ claims are not ripe, because the ban on visas is subject to discretionary waivers. (Br. Pg. ID 1023-24.) That argument has been rejected by other courts. Hawai’i, 2017 WL 1011673, at *11; IRAP, 2017 WL 1018235, at *7. Regardless of the prospect that a waiver might be granted in the future, Plaintiffs experienced immediate stigmatic injury from the moment the Revised EO was promulgated and targeted Muslims for condemnation. The Supreme Court has held that “the mere passage” of “a policy that has the purpose and perception of government establishment of religion” imposes an immediate harm, even if that policy has not yet been implemented to advance or attack a religion. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 314 (2000) (allowing challenge to policy that permitted religious invocations at school football games, even before it was certain that religious invocations would be presented). Moreover, the waiver process under the Revised EO itself imposes onerous burdens. SAC ¶ 343. To obtain a waiver, an applicant must demonstrate (a) “undue hardship”; (b) “that his or her entry would not pose a threat to national security”; and (c) that the waiver “would be in the national interest.” Revised EO, § 3(c). It is unclear whether the individual Plaintiffs’ loved ones (or those of the organizational
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Plaintiffs’ members) are eligible for a waiver, whether such a waiver would be granted, or how long the process will take. Id. ¶ 341. Even a successful waiver application will entail additional time and expense, particularly because consular processing for individuals from the Designated Countries frequently requires travel to a U.S. embassy in a third country. Id. ¶ 342; see also id. ¶¶ 233-41 (explaining how waiver process makes it more complicated for the ACLU to organize the “Voices of the Muslim Ban” event). By singling out individuals from the Designated Countries for these burdens, the Revised EO imposes a concrete harm that creates a justiciable controversy now, regardless of whether the Plaintiffs’ loved ones might ultimately succeed in obtaining a waiver. N.E. Fla. Chapter of Assoc’d Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993).
THE FACT THAT THIS IS AN IMMIGRATION CASE DOES NOT DEPRIVE THE COURT OF ITS POWER TO ADDRESS CONSTITUTIONAL VIOLATIONS. A. The Immigration Context Does Not Insulate Constitutional Violations
from Judicial Review. The thrust of the Government’s argument is that the normal rules of constitutional review do not apply because this is an immigration case, and that therefore this Court has no power to review executive immigration actions. That is simply incorrect. Executive action on immigration is “subject to important constitutional limitations.” Zadvydas v. Davis, 533 U.S. 678, 695 (2001). Courts
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retain their “responsibility under the Constitution” in immigration cases, Fiallo v. Bell, 430 U.S. 787, 793 n.5 (1977), and can review whether the political branches are implementing their power over immigration matters through “constitutionally permissible means.” INS v. Chadha, 462 U.S. 919, 941 (1983).
Given this framework, it is no surprise that courts reviewing the Executive Orders have universally rejected the Government’s argument that executive immigration actions are unreviewable. Hawai’i v. Trump, No. 17-00050, 2017 WL 1167383, at *6 (D. Haw. Mar. 29, 2017) (noting that every court to have considered the constitutionality of either executive order has rejected the Government’s argument that the Court’s review “ends at the Executive’s door”); IRAP, 2017 WL 1018235, at *15; Sarsour, 2017 WL 1113305, at *11; Aziz, 2017 WL 580855, at *6 (Congress cannot “delegate to the president the power to violate the Constitution.”).
In light of these decisions, the Government casts its argument of nonreviewability as one of judicial deference, insisting this Court may consider only whether the Revised EO’s asserted national security purpose is “facially legitimate and bona fide.” Br. Pg. ID 1031 (citing Kleindienst v. Mandel, 408 U.S. 753, 770 (1972)). That argument fails both because Mandel does not apply here and because, even if it did, Plaintiffs have plausibly alleged that the Revised EO’s purpose is to discriminate against Muslims, so that the asserted purpose is not “bona fide.”
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B. Even If Mandel Applies, Whether the Asserted National Security Purpose Is Bona Fide Is a Question of Fact that Cannot Be Decided on a Motion to Dismiss.
Mandel does not apply for the reasons set forth below. But if it did, Mandel would not, as the Government argues, permit the court simply to rubber-stamp executive actions despite evidence of unconstitutional motives. Rather, Mandel requires a justification that is both “facially legitimate” and “bona fide.” 408 U.S. at 770. “Bona fide,” of course, means “in good faith” or “without deceit or fraud.” Black’s Law Dictionary (10th ed. 2014); see also Lowe v. SEC, 472 U.S. 181, 208 (1985) (explaining that the term “bona fide” “translates best to ‘genuine’”).
A justification is not “bona fide” under Mandel if there is evidence of bad faith. Cardenas v. United States, 826 F.3d 1164, 1172 (9th Cir. 2016). Therefore, under the controlling opinion of Justice Kennedy in Kerry v. Din—a case the Government conveniently omits from its briefing—where the plaintiff makes an “affirmative showing of bad faith” that is “plausibly alleged with sufficient particularity,” the court can look behind the Government’s justification to test whether it is “bona fide.” 135 S. Ct. 2128, 2141 (2015) (Kennedy, J., concurring in the judgment). Courts have not shied away from rejecting government rationales as failing this basic test. See, e.g., Nadarajah v. Gonzales, 443 F.3d 1069, 1082-83 (9th Cir. 2006) (rejecting assertion of national security risk as “based on facially
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implausible evidence”); Aziz, 2017 WL 580855, at *8 (“If the proffered ‘facially legitimate’ reason has been given in ‘bad faith,’ it is not ‘bona fide.”).
Moreover, when the Government “discriminate[s] invidiously against a particular race or group,” that “exercise of [government] power would not be ‘legitimate and bona fide’ within the meaning” of Mandel. Bertrand v. Sava, 684 F.2d 204, 212 (2d Cir. 1982). Thankfully, the years in which federal courts themselves endorsed invidious stereotypes to justify exclusionary immigration policy are long gone. Compare Chae Chan Ping v. United States, 130 U.S. 581, 595, 606 (1889) (Chinese Exclusion Case) (describing Chinese immigrants as “hordes” threatening to “overrun” the U.S.), with INS v. Pangilinan, 486 U.S. 875, 886 (1988) (giving careful consideration to allegations that racial animus against Filipinos infected immigration decision making).
Plaintiffs (here and around the country) have plausibly alleged that the asserted national security justification is not “bona fide” but is, rather, a pretext for religious discrimination.9 Defendants dispute those allegations, asserting a national
9 See, e.g., SAC ¶¶ 53-128 (describing development of Original EO, including establishment of a commission under Mr. Giuliani charged with figuring out a legal way to create a Muslim ban); ¶¶ 142-44 (describing directives to DHS to develop reports to justify travel bans); ¶¶ 145-46 (describing findings of intelligence agencies that country of citizenship was unlikely to indicate future terrorist activity, and that entry restrictions would be ineffective); ¶¶ 147-49 (describing delay of Revised EO, despite alleged national security emergency, so that President could bask in positive
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security justification. Br. Pg. ID 1033. On a motion to dismiss, however, Plaintiffs’ non-conclusory factual allegations must be accepted as true, and the Complaint more than plausibly alleges that the purported national security justification is not “bona fide,” but rather is a pretext for discrimination.
C. Mandel Does Not Apply. Given the factual dispute about whether there is a “bona fide” justification for the Revised EO, the Court need not decide now whether Mandel applies. But as other courts have previously found, Mandel deference is inapplicable here in any event. Washington, 847 F.3d at 1162; IRAP, 2017 WL 1018235, at *16. First, the “facially legitimate and bona fide” standard is typically applied to congressional decisions, or individual visa denials implementing congressional policy. See, e.g., Din, 135 S. Ct. at 2128. “The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application” but rather about “the President’s promulgation of sweeping immigration policy.” Washington, 847 F.3d at 1162 (9th Cir. 2017). As the Ninth Circuit explained with respect to the Original
press coverage); ¶¶ 160-80 (describing similarities between Original and Revised EOs); ¶ 182 (quoting President Trump as describing the Revised EO as a “watereddown version of the first order”); ¶¶ 141, 150 (describing statements by executive branch officials that purpose of Revised EO is the same as the Original EO).
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EO, “[s]uch exercises of policymaking authority at the highest levels of the political branches are plainly not subject to the Mandel standard.” Id.
The premise of Mandel was that Congress, not the Executive, has “plenary power to make rules for the admission of aliens.” 408 U.S. at 766 (internal quotation marks omitted); see also Fiallo, 430 U.S. at 796 (“[T]he particular classes of aliens that shall be denied entry altogether . . . have been recognized as matters solely for the responsibility of the Congress . . . .” (internal quotation marks and citation omitted)). The Government cites no case—and as far as Plaintiffs are aware, there is none—applying Mandel to independent presidential policy.
Such deference would be particularly inappropriate where, as here, the President’s actions exceed the authority that “Congress has delegated . . . to the Executive.” Mandel, 408 U.S. at 769. While Congress has delegated certain immigration powers to the Executive, with respect to immigrant visas in particular— the type of visas at issue for the individual Plaintiffs in this case—Congress has also enacted a specific bar on nationality discrimination in 8 U.S.C. § 1152(a)(1)(A), which dictates 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.” Because Congress did
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not authorize the President to discriminate in making immigration policy, Mandel deference does not apply.
Second, Plaintiffs are not aware of any court having applied Mandel deference to an Establishment Clause or religious discrimination claim. As discussed in more detail below in Section III.A, the anti-Muslim message of the Revised EO violates the core Establishment Clause command that the government may not disfavor a particular religion. McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 860 (2005). This injury does not depend on a visa denial to a particular individual (as in Mandel), but on the stigmatic harm the EO imposes on Muslims. This distinction reflects the role of the Establishment Clause as a structural restriction on the Government’s authority to condemn any religion.
THE COMPLAINT STATES PLAUSIBLE CLAIMS FOR VIOLATIONS OF PLAINTIFFS’ CONSTITUTIONAL RIGHTS. A. The Complaint States an Establishment Clause Claim. The facts alleged in the Complaint establish that the Revised EO violates the Establishment Clause. A government action satisfies the Establishment Clause only if it has a “secular . . . purpose,” has a “primary effect . . . that neither advances nor inhibits religion,” and does not “foster an excessive government entanglement with religion.” Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971) (internal citation and
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quotation marks omitted). The EO fails this test,10 as other courts have recognized in finding that the plaintiffs are likely to succeed on their Establishment Clause claims. See Hawai’i, 2017 WL 1167383, at *6; IRAP, 2017 WL 1018235, at *16.
1. Plaintiffs Have Plausibly Alleged That The Purpose of the Executive Order Is Religious, Not Secular.
When “a religious objective permeate[s] the government’s action,” it is impermissible. McCreary, 545 U.S. at 863. To determine the purpose of a government action, courts must examine “readily discoverable fact,” including the “text, legislative history, and implementation” of the action, from the perspective of an “objective observer” “familiar with the history of the government’s actions and competent to learn what history has to show.” Id. at 862, 866. The court must also determine whether the Government’s stated secular purpose was “genuine, not a sham, and not merely secondary to a religious objective.” Id. at 864. While “savvy officials [who] had disguised their religious intent so cleverly” might escape an Establishment Clause violation, id. at 863, the same is not true when “the divisive thrust of the official action [is] inescapable,” id. at 861, as it is here.
10 Given the Order’s targeting of Muslims, explicit anti-Muslim statements linked to the Order, the exceedingly thin non-discriminatory justifications provided by the government, and the history of its enactment, the Revised EO also fails the Larson v. Valente test, which imposes strict scrutiny on government action designed “to burden” “selected religious denominations.” 456 U.S. 228, 255 (1982).
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The facts alleged in the Complaint make clear that the Revised EO was the culmination of a longstanding effort by the President to exclude Muslims from the United States. As early as December 2015, Candidate Trump called “for a total and complete shutdown of Muslims entering the United States.” SAC ¶ 1. In May 2016, he commissioned an effort to repackage this ban, asking Rudolph Giuliani to advise on “the right way to [ban Muslims] legally.” Id. ¶ 70. He then explained in July 2016 that he had reframed his ban to target “territory instead of Muslim,” which he lauded as a Muslim ban “expansion” rather than “rollback.” Id. ¶ 73. In October 2016, he candidly disclosed that “[t]he Muslim ban . . . ha[d] morphed into extreme vetting from certain areas of the world.” Id. ¶ 76.
On January 27, 2017, President Trump issued the Original EO, which, among other provisions, banned the entry of individuals from seven majority-Muslim countries (and no others), and expressly preferred refugee applications from “religious minorit[ies],” i.e., non-Muslims. Id. ¶¶ 94-95, 99-101. After the courts enjoined enforcement of the Original EO, the President issued the Revised EO. The Government decided to retain “just about everything” the Original EO was intended to accomplish. Id. ¶ 140. Senior officials described the Revised EO as having “minor, technical differences” but the “same, basic policy outcome” in order “to maintain the way we did it the first time.” Id. ¶¶ 141, 150. The Revised EO was thus
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essentially the Original EO beneath a thin veneer. See Hawai’i, 2017 WL 1167383, at *7 (describing “efforts to sanitize [the Original EO’s] refugee provision” (internal quotation omitted)).
The Revised EO justifies the travel ban as necessary because “the risk of erroneously permitting entry of a national of one of these [six] countries who intends to commit terrorist acts . . . is unacceptably high.” Revised EO § 1(f). However, just one month before the Revised EO was issued, DHS reported that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.” SAC ¶¶ 142-46. Other “indicia of pretext” include the fact that the White House delayed issuing the Revised EO to allow the President to bask in favorable press coverage from his congressional address on February 28, “which detracts from the national security urgency claimed by the Administration.” Hawai’i, 2017 WL 1011673, at *15; SAC ¶¶ 147-49. And in a transparent attempt to bolster a post hoc fiction to justify the Revised EO, the Attorney General and Secretary of Homeland Security issued a letter on the very day the Revised EO was announced that claimed to propose that very policy. See Br. Pg. ID 1017.
These allegations denude the national security pretense of any shred of legitimacy, and are more than sufficient to survive a motion to dismiss. The Government challenges these factual allegations, instead characterizing the Revised
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EO as having a “secular purpose” (Br. Pg. ID 1037). The Government’s stated national security purpose is a blatant “litigating position,” McCreary, 545 U.S. at 871, and not the EO’s predominant purpose. In any event, the (even easier) question at this stage is whether Plaintiffs have made sufficiently plausible allegations to state a claim that the EO had an impermissible religious purpose. They have.
2. Plaintiffs Have Plausibly Alleged that the Effect of the Executive Order Is to Endorse Religion.
The Complaint also sufficiently alleges that the Revised EO violates the Establishment Clause because its “primary effect” is to “advance[] [or] inhibit[] religion.” Lemon, 403 U.S. at 612-613. “[A] challenged governmental action has a religious effect where it ‘is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their religious choices.’” ACLU of Ky. v. Grayson Cty., 591 F.3d 837, 845 (6th Cir. 2010) (quoting Cty. of Allegheny v. ACLU, 492 U.S. 573, 597 (1989)). A court considers this prong too from the perspective of “an objective observer, acquainted with the text, . . . history, and implementation’” of the action. Grayson Cty., 591 F.3d at 854 (6th Cir. 2004) (quoting Santa Fe, 530 U.S. at 308). The critical question is whether the government action “conveys a message of endorsement or disapproval.” Smith v. Jefferson Cty. Bd. of Sch. Comm’rs, 788 F.3d 580, 587 (6th Cir. 2015).
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The allegations in the Complaint make clear that the Revised EO conveys a “message of . . . disapproval” of Islam. After months of widely publicized antiMuslim statements by the President and his closest advisors, the Government imposed a ban on travel that affected only countries with populations that are more than 90% Muslim. SAC ¶ 161. It imposed additional screening procedures on people from Iraq, which is “more than 99% Muslim.” IRAP, 2017 WL 1018235, at *2; SAC ¶ 168; Revised EO § 4. It suspended admissions of refugees, after a year when Muslims made up nearly half of the refugees settled in the United States, more than in any prior year. See Hawai’i, 2017 WL 1167383, at *8 n.6. And it did so weeks after the President had issued the Original EO, which, among other things, specifically favored the immigration of Christian refugees over Muslim refugees, and was later described by the President and his advisors as being intended to have the same effect as the Revised EO. SAC ¶¶ 100, 140-41.
The Government again resorts to a factual dispute that is inappropriate for a motion to dismiss. See, e.g., Br. Pg. ID 1035 (making assertions as to the impact of the Order on Muslims worldwide); id. Pg. ID 1035-36 (characterizing the relevance and accuracy of the analysis used to justify the Order); id. Pg. ID 1043 (arguing what the “actual effect” of the Order is). In any event, none of the defenses offered by the Government meaningfully address the allegations in the Complaint. It is irrelevant
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that the travel ban does not yet apply to every Muslim or every Muslim-majority country, just as it is irrelevant that the Revised EO also bars the few non-Muslims from the six banned countries. Hawai’i, 2017 WL 1011673, at *12 (calling these arguments illogical and finding that “targeting these countries likewise targets Islam”). Moreover, the EO is not saved by the fact that the Designated Countries were previously made ineligible for the Visa Waiver Program. See 8 U.S.C. § 1187. That statute simply requires individualized review of non-Visa Waiver country nationals. Its history, goals and effect differ dramatically from those of the EO, and provide no support for the Defendants’ actions here. Similarly, although Defendants make much of a series of cases challenging the National Security Entry-Exit Registration System (“NSEERS”), the NSEERS cases did not involve Establishment Clause claims. See, e.g., Rajah v. Mukasey, 544 F.3d 427, 433 (2d Cir. 2008).
Again, the relevant Establishment Clause question is what “message” is conveyed by the government’s actions. The text, history, and implementation of the Revised EO as alleged in the Complaint make clear that the EO conveys an unmistakable and impermissible message that the United States Government disapproves of Islam and Muslims.
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3. This Court Is Entitled to Consider All Relevant Evidence of the Purpose and Effect of the Revised EO.
In its concerted effort to evade the Establishment Clause, the Government invents a number of novel roadblocks to this Court’s review.
First, the Government suggests that the Court can consider the purpose and effect of a government action only if it expressly references religion. Not so. It is well established that where a law appears to be facially neutral, courts apply Lemon. E.g., Hernandez v. CIR, 490 U.S. 680, 695 (1989). Because the Establishment Clause “extends beyond facial discrimination,” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993), the Lemon test was designed to discern whether a religious purpose hides under a secular façade.
Second, Plaintiffs’ claims do not require the Court to engage in “psychoanalysis.” Br. Pg. ID 1032. To the contrary, the public statements alleged here constitute “readily discoverable fact,” McCreary, 545 U.S. at 862, and their meaning is self-evident and highly relevant. See IRAP, 2017 WL 1018235, at *13 (“[E]xplicit, direct statements of President Trump’s animus towards Muslims . . . allow the Court to identify the purpose of this government action without resort to ‘judicial psychoanalysis.’”).
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Third, there is no authority for the Government’s view that the Court may only
review statements made while the President is in office.11 See IRAP, 2017 WL
1018235, at *13.12 The statements cited in the Complaint are part of the Revised
EO’s “historical context” and “the specific sequence of events leading to” its
issuance. Edwards v. Aguillard, 482 U.S. 578, 594-95 (1987). Courts routinely rely
on statements from political campaigns when considering Establishment Clause
claims. See, e.g., Glassroth v. Moore, 335 F.3d 1282, 1284-85, 1297 (11th Cir. 2003)
(campaign materials of a state candidate); Epperson v. Arkansas, 393 U.S. 97, 107-
08, 109 n.16 (1968) (campaign advertisements). Nor is there any reason to think that
considering statements from the Trump campaign will have a “chilling effect” on
legitimate political debate; the statements alleged here were hardly offhand
statements on the campaign trail or general statements of religious faith, but were
11 The Government’s argument here, which is that candidates are not government actors but rather “private persons”, Br. Pg. ID 1042, contradicts its own position in opposing discovery, which is that Defendant Trump is entitled to executive privilege for documents from “before the President took office but concerning actions to be taken when he became President.” R. 82, Pg. ID 1132. 12 Nor is there any basis for the Government’s assertion that the Court should disregard “informal” statements by government officials. The only case cited, Hamdan v. Rumsfeld, 548 U.S. 557, 623 n.52 (2006), observed merely that an illegal presidential action cannot be saved by a government official’s self-serving statements to the press. It says nothing about what evidence a court may consider in an Establishment Clause case, where a court is specifically required to consider context in determining the purpose and effect of a government action.
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instead oft-repeated policy pronouncements that ripened into official action. As
Defendants concede, “stigmatization and alienation caused by the government
publicly communicating a message favoring or disfavoring religion is the harm that
Establishment Clause jurisprudence seeks to avoid.” Br. Pg. ID 1032.13
Fourth, the issuance of the Revised EO did not, as the Government suggests,
“reduce[] the probative value of the President’s statements” such that the Court
should not rely on them. Br. Pg. ID 1043. To the contrary, courts throughout the
country have properly relied on those statements to understand the purpose of the
EOs. IRAP, 2017 WL 1018235, at *3-4, 11 (considering statements made by
Candidate and President-Elect Trump about Muslims and his intended Muslim ban);
Hawai’i, 2017 WL 1011673, at *13 (same).14 The Government further suggests that,
since the Revised EO did not amount to a “complete shutdown” on entry by
13 The cases cited by the Government are inapposite. One set of cases merely held that views of people with no government or decisionmaking role were irrelevant to Establishment Clause claims. See Glassman v. Arlington City, 628 F.3d 140, 147 (4th Cir. 2010) (church members); Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 (10th Cir. 2008) (the artist who created the challenged display); Modrovich v. Allegheny Cty.. 385 F.3d 397, 411 (3d Cir. 2004) (the public and a judge with no role in the decision). In others, the courts merely declined to consider prosecutors’ campaign statements about policy in deciding whether to intervene in state criminal cases. E.g., Phelps v. Hamilton, 59 F.3d 1058, 1068 (10th Cir. 1995). 14 The Sarsour case relied on by Defendants is an outlier, and even it considered the statements relevant (before concluding that the plaintiffs had not shown a likelihood of success). Sarsour, 2017 WL 1113305, at *12.
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Muslims, the President’s statements are irrelevant. That argument has been expressly rejected. IRAP, 2017 WL 1018235, at *13 (“direct statements” confirm the nationality-based travel ban was intended “as nearly as possible” to “approximate a Muslim ban without calling it one”). In any event, judicial review cannot be evaded simply because the final policy differs from an initial proposal.
Finally, the so-called “presumption of regularity” for actions of public officials (Br. Pg. ID 1040) does not immunize the Executive Branch from judicial review. Indeed, McCreary declined to apply such a presumption. 545 U.S. at 902 n.9, 912 (Scalia, J., dissenting); see also United States v. Chem. Found., 272 U.S. 1, 14 (1926) (presumption rebutted by evidence that official acted improperly).
B. The Complaint States an Equal Protection Claim. The allegations in the Complaint also establish that the Revised EO violates equal protection by impermissibly discriminating based on religion. The Government’s only response to the equal protection claim is to try to confine the Court to Mandel or rational basis review, relying on cases in which there was no claim of religious discrimination.15 See Br. Pg. ID 1045. It is well established,
15 In Fiallo, on which the Government relies, the Court upheld differential treatment accorded by statute to children of U.S. citizen mothers versus U.S. citizen fathers, because line-drawing about family ties—an unavoidable part of immigration law— turned on “policy questions entrusted exclusively to the political branches.” 430 U.S. at 798. That is, as in Mandel, there were competing legitimate governmental
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however, that claims of religious discrimination are subject to heightened scrutiny.16 Harbin-Bey v. Rutter, 420 F.3d 571, 576 (6th Cir. 2005) (holding that when a
government action “invades a fundamental right, such as . . . religious freedom, the law will be sustained only if it is suitably tailored to serve a compelling state interest” (quoting City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985)
(internal quotation marks omitted))). Rajah, 544 F.3d 427, supports Plaintiffs, not the Government. There the
plaintiffs brought a selective prosecution challenge to the National Security EntryExit Registration System (NSEERS), arguing that although they were in the country
unlawfully, they had been selectively targeted for deportation based on their religion. Id. at 434. The Second Circuit agreed that “selective prosecution based on an animus of that kind” would be unconstitutional, id. at 438, but rejected the religious
concerns. But in leaving such judgments to Congress, neither Mandel nor Fiallo authorized government action based on improper animus. Indeed, in subsequent caselaw, the Supreme Court made clear that the very policy upheld in Fiallo, far from deriving from impermissible animus, passes muster under heightened scrutiny. See Nguyen v. INS, 533 U.S. 53, 61 (2001). 16 The Revised EO fails rational basis review in any event, because the Government cannot establish that it has “employed rational means to further its legitimate interest.” Peoples Rights Org. v. City of Columbus, 152 F.3d 522, 532 (6th Cir. 1998); see also Cleburne, 473 U.S. at 446-47, 450 (holding that a “bare desire to harm a politically unpopular group” based on an “irrational prejudice” is not a legitimate government interest that satisfies rational basis review).
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discrimination claim there because the plaintiffs had provided insufficient evidence “that the Program was motivated by an improper animus toward Muslims.” Id. at 439. Here, by contrast, the Complaint sets out the discriminatory purpose and effect of the EO in detail.
Therefore, as with the Establishment Clause claim, the Complaint’s allegations that the Revised EO discriminatorily targets Muslims must be accepted as true. See supra Section III.A. First, the Complaint chronicles the months of antiMuslim statements by Candidate Trump and his advisers and the plan to “legalize” the Muslim ban by targeting particular countries. SAC ¶¶ 53-84; see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977) (“The historical background of the decision is one evidentiary source.”). Second, the Complaint explains how the Revised EO’s burdens fall disproportionately on Muslims. See, e.g., SAC ¶ 161 (more than 90% of the citizens of the Designated Countries are Muslim); id. ¶¶ 177-78 (uses language based on Muslim stereotypes in establishing reporting requirements); id. ¶ 201 (effectively halts resettlement of refugees from Muslim countries); see also Washington v. Davis, 426 U.S. 229, 242 (1976) (“[A]n invidious discriminatory purpose may often be inferred . . . [when] the law bears more heavily on one [protected class] than another.”). Third, the Complaint alleges that Defendants “[d]epart[ed] from the normal procedural
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sequence” by failing to obtain agency input before issuing the Original EO, and then delaying issuance of the Revised EO to allow the President to benefit from unrelated press coverage. SAC ¶¶ 6, 110-13; see also Arlington Heights, 429 U.S. at 267 (“Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role.”). Finally, the Complaint alleges that the Revised EO does not promote its asserted national security goal.17 The Government’s own experts have found that the Revised EO’s classifications will not promote the asserted interest in national security, and DHS determined that suspending nationals of the six countries will not promote national security. SAC ¶¶ 145-46. No recent major terrorist attack on U.S. soil has been committed by a national of any of the Designated Countries, and immigrants and refugees were already carefully screened before the EOs were imposed. Id. at ¶¶ 135, 183-201.
In sum, the Complaint plausibly alleges that the Revised EO discriminates based on religion and is not tailored to its asserted national security goal. SAC ¶¶ 359-370.
17 Indeed, the allegations in the Complaint, taken as true, show that the Revised EO is not even rationally related to its asserted national security goal.
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C. The Complaint States a Claim for Violation of Plaintiffs’ Right to Free Speech and Association.
It is settled law that the “Constitution protects the right to receive information and ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969). The Revised EO impinges on Plaintiffs’ right to hear from, speak with, debate with, and associate with nationals of the banned countries, including by impeding the ability of the organizational Plaintiffs to bring speakers from those countries to the United States, and therefore violates the First Amendment.18
Defendants respond to the First Amendment claim by raising a factual dispute, inappropriate on a motion to dismiss, over whether the organizational Plaintiffs will actually be “prevent[ed] . . . from conducting their programming . . . .” Br. Pg. ID 1047. Relatedly, they suggest that the First Amendment violation is excused by the possibility that the Government will issue a waiver under Section 3(c) of the Revised EO, which allows a “consular officer” or “CBP official[]” to exercise “discretion” and “decide on a case-by-case basis” to authorize an individual’s entry, such as “for significant business or professional obligations.” Revised EO § 3(c)(iii). These provisions give an individual official the authority to decide whether a planned speech is “significant” enough to satisfy the official. This amounts to an
18 For the reasons discussed above in Section II, Plaintiffs’ First Amendment claim is not foreclosed by Mandel.
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unconstitutional content-based restriction on speech. Bays v. City of Fairborn, 668 F.3d 814, 821 (6th Cir. 2012). Moreover, given that the issuance of a waiver is uncertain, not bound by any timetable, and in the “discretion” of individual officials, Plaintiffs are unable to rely on that prospect when planning events. SAC ¶¶ 234-41; 268; 273.
CONCLUSION Defendants ask this Court to ignore the allegations of animus in the Complaint and instead take the Government at its word that the EO was adopted solely to protect national security. Defendants seek not judicial deference but judicial abdication. This is a motion to dismiss, and it is the words of the Complaint, not those of the Government, that must be taken as true. The Complaint plausibly states claims for constitutional violations by Plaintiffs with standing. The motion should be denied.
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Dated: May 8, 2017

Respectfully submitted,

Counsel for Arab American Civil Rights League

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

/s/ Rula Aoun Rula Aoun (P79119) 4917 Schaefer Rd. Dearborn, MI 48126 (313) 633-0231 rula@acrlmich.org

HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC /s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com

VIDA LAW GROUP, PLLC /s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com

Counsel for American Arab Chamber of Commerce

FARHAT & ASSOCIATES, PLLC /s/ Helal Farhat Helal Farhat (P64872) Counsel for the American Arab Chamber of Commerce 6053 Chase Rd. Dearborn, MI 48126 (313) 945-5100 hfarhat@saflegal.com

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) Attorney for Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

46

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Counsel for Hend Alshawish, Salim Alshawish, Yousef Abdullah, Fahmi Jahaf, and Mohamed Alshega

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) Attorney for Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

/s/ Rula Aoun Rula Aoun (P79119) 4917 Schaefer Rd. Dearborn, MI 48126 (313) 633-0231 rula@acrlmich.org

HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC /s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com
/s/ Ali K. Hammoud Ali K. Hammoud (P73076) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 ah@hdalawgroup.com

VIDA LAW GROUP, PLLC /s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com

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Counsel for American Civil Liberties Union of Michigan, Arab American and Chaldean Council, Arab American Studies Association, Adeeb Saleh, Sofana
Bella, Hilal Alkatteeb and S.A., a minor through her Parent and Next Friend, Hilal Alkatteeb

/s/ Miriam Aukerman Miriam Aukerman (P63165) American Civil Liberties Union Fund of Michigan 1514 Wealthy SE, Suite 242 Grand Rapids, MI 49506 (616) 301-0930 maukerman@aclumich.org

/s/ Samuel R. Bagenstos Samuel R. Bagenstos (P73971) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 (734) 647-7584 sbagen@gmail.com

/s/ Michael J. Steinberg Michael J. Steinberg (P43085) Daniel S. Korobkin (P72842) Kary L. Moss (P49759) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org

/s/ Margo Schlanger Margo Schlanger (N.Y. Bar #2704443 (3d Dept)) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 (734) 615-2618 margo.schlanger@gmail.com

/s/ Jason C. Raofield Jason C. Raofield (D.C. Bar #463877) Covington & Burling LLP One City Center 850 10th Street, NW Washington, D.C. 20001 (202) 662-5072 jraofield@cov.com

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CERTIFICATE OF SERVICE This Memorandum was filed on May 8, 2017, via the Court’s ECF system, which provides notice to all counsel of record.
/s/ Jason C. Raofield Jason C. Raofield (D.C. Bar #463877)

 
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs,

Case No. 17-10310

v.

Hon. Victoria A. Roberts

DONALD TRUMP, President of the United States, et al.,

Oral Argument Requested

Defendants. _____________________________________/

DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

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TABLE OF CONTENTS INTRODUCTION .................................................................................................... 1 ARGUMENT ............................................................................................................2
I. Plaintiffs Do Not Have Standing ..................................................................2 A. Stigma....................................................................................................2 B. Family or Members’ Familial Separations……………………….....5 C. Economic Harm………………………....…………………………... 7
II. Plaintiffs’ Claims Fail On The Merits .........................................................9 A. Establishment Clause ...........................................................................9 B. Equal Protection.................................................................................14 C. Freedom of Speech and Association ................................................ 15
CONCLUSION.......................................................................................................15 CERTIFICATE OF SERVICE ............................................................................17
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TABLE OF AUTHORITIES
CASE LAW
Allen v. Wright, 468 U.S. 737 (1984) ...........................................................................................8, 9
Andrade-Garcia v. Lynch, 828 F.3d 829 (9th Cir. 2016) ................................................................................10
Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) ..........................................................................2, 3
Bains v. United States, 2014 WL 3389117 (N.D. Ohio July 9, 2014).......................................................11
Bangura v. Hansen, 434 F.3d 487 (6th Cir. 2006) ..................................................................... 5, 11, 14
Bays v. City of Fairborn, 668 F.3d 814 (6th Cir. 2012) ................................................................................15
Ben-Issa v. Reagan, 645 F. Supp. 1556 (W.D. Mich. 1986).................................................................15
Bowen v. Kendrick, 487 U.S. 589 (1988) .............................................................................................10
Burrafato v. U.S. Dep’t of State, 523 F.2d 554 (2d Cir. 1975) .................................................................................19
Catholic League for Religious & Civil Rights v. City and County of San Francisco, 624 F.3d 1043 (9th Cir. 2010) (en banc)............................................................2, 3
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ...........................................................................................7
Fiallo v. Bell, 430 U.S. 787 (1977) .............................................................................................10
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Freedom From Religion Found., Inc. v. Obama, 641 F.3d 803 (7th Cir. 2011)..................................................................................4
Heller v. Doe, 509 U.S. 312 (1993) .............................................................................................14
Kerry v. Din, 135 S. Ct. 2128 (2015) .....................................................................................5, 11
Kleindienst v. Mandel, 408 U.S. 753 (1972) ........................................................................ 7, 9, 10, 11, 15
Mathews v. Diaz, 426 U.S. 67 (1976) .................................................................................................1
McCreary Cnty. v. ACLU of Ky., 545 U.S. 844 (2005) ...................................................................................... 12, 13
Mehdi v. U.S. Postal Serv., 988 F. Supp. 721 (S.D.N.Y. 1997) .........................................................................9
Moore v. Bryant, 853 F.3d 245 (5th Cir. 2017) ..............................................................................5, 9
NAACP v. Horne, 626 F. App'x 200 (9th Cir. 2015). ..........................................................................5
Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979) ...................................................................... 12, 13
In re Navy Chaplaincy, 534 F.3d 756 (D.C. Cir. 2008) .............................................................................19
New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046 (6th Cir. 2011) ..............................................................................12
Newdow v. Lefevre, 598 F.3d 638 (9th Cir. 2010)..................................................................................4
Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (9th Cir. 2010)................................................................................4
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Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1953) ...............................................................................................8
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) .......................................................................... 14, 15
Reno v. Am-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ...................................................................................... 12, 13
Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) .............................................................................6
Sarsour v. Trump, 2017 WL 1113305 (E.D. Va. Mar. 24, 2017) ............................................... 13, 14
Smith v. Jefferson Cnty. Bd. of Sch. Comm'rs, 641 F.3d 197 (6th Cir. 2011) (en banc)..................................................................8
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) .........................................................................................9, 10
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) ...............................................................................................7
Valley Forge Christian Coll. v. Ams. United for Sep. of Church & State, Inc., 454 U.S. 464 (1982) .........................................................................................4, 10
Washington v. Trump, 2017 WL 1045950 (W.D. Wash. Mar. 16, 2017).................................................14
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INTRODUCTION Defendants hereby reply to Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (ECF No. 86) (hereinafter, “Plaintiffs’ Opposition” or “Pls.’ Opp.”). Defendants focus on three critical flaws in Plaintiffs’ Opposition: (1) Plaintiffs’ claims are unripe and do not support their claimed bases for standing; (2) Plaintiffs’ perceived religious-discrimination claims are wholly subjective and unsupported by the face and official purpose of the Order; and (3) Plaintiffs’ substantive arguments completely ignore how “significantly different considerations” are at play when the federal government makes distinctions in immigration law based on alienage and nationality because “it is the business of the political branches of the Federal Government...to regulate the conditions of entry and residence of aliens.” Mathews v. Diaz, 426 U.S. 67, 84 (1976). Contrary to Plaintiffs’ arguments, the Order neither singles out Muslims nor bans their travel. Rather, it imposes a short-term suspension on travel of nationals of certain countries, without regard to religion, and with waivers available to facilitate certain legitimate travel from the designated countries even during that limited period. Moreover, the purpose of the Order is unconnected to religion. Its stated, official purpose is to permit the Executive Branch with time to review the nation’s screening procedures to ensure that they adequately detect terrorists.
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ARGUMENT I. Plaintiffs Do Not Have Standing.
Plaintiffs premise their standing on “three distinct injuries: stigma, family separation, and economic cost.” Pls.’ Opp. at 10. These are addressed in turn.
A. Stigma For their establishment and equal protection claims, Plaintiffs claim that they suffer an “immediate stigmatic injury,” id. at 23, because the Order “officially condemn[s] Plaintiffs’ religion,” id. at 12–13. But perceived stigmatic or “condemnation” harms are insufficient to for Establishment Clause standing when they are entirely subjective and indirect. Plaintiffs here contend that the Order conveys “an official message of disapproval and hostility towards Muslims,” Pls.’ Opp. at 11 (quotations omitted), but they fail to point to any part of the Order that condemns or stigmatizes any religion; Plaintiffs’ “injury” is derived solely from their own inferences. Plaintiffs cite to cases such as Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) and Catholic League for Religious & Civil Rights v. City and County of San Francisco, 624 F.3d 1043 (9th Cir. 2010) (en banc) to support their claim that a government message of condemnation of religion is sufficient for “stigma” standing. But those cases involved a personalized injury from actual government
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speech rather than an abstract objection to government policy. Awad dealt with a “state amendment expressly condemn[ing the plaintiff’s] religion[.]” 670 F.3d at 1123 (emphasis in original) (establishing direct injury in fact necessary for standing). The resolution in Catholic League condemned a “foreign country…the Vatican (formerly known as Holy Office of the Inquisition)”; “denounce[d a] Cardinal’s directive” because it was “‘hateful,’ ‘insulting,’ and ‘callous’; and urge[d] the local archbishop and Catholic Charities to ‘defy’ the Cardinal’s instructions.” 624 F.3d at 1047. The plaintiffs in those cases were thus exposed to express, official speech directed towards them and their religion.1
In this case, the Order does not expose Plaintiffs to any religious message, because it says nothing about religion. Nor is it directly targeted at Plaintiffs, because it applies only to aliens abroad. Plaintiffs cannot manufacture standing by re-characterizing their abstract injury from “government action” directed against others as a personal injury from “a governmental message [concerning] religion” directed towards them. In re Navy Chaplaincy, 534 F.3d 756, 764 (D.C. Cir. 2008). Indeed, their approach would mean that the Order could be challenged by any Muslim in this country. Moreover, Plaintiffs’ subjective sense of offense
1 See Catholic League, 624 F.3d at 1050 n.26 (“[T]he plaintiffs here are not suing on the mere principle of disagreeing with San Francisco, but because of that city’s direct attack and disparagement of their religion.” (emphasis added)).
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draws its force not from the text or the effect of the Order, which is carefully tailored to respond to specific national security concerns, but instead by linking the Order with political statements from a presidential campaign. These perceived improper motives, stemming from statements made outside the government, are not the same thing as injury from an official government message about religion.
Without any direct stigmatization, Plaintiffs’ establishment claims are “covered by the rule of Valley Forge [Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982)]...that offense at the behavior of the government, and a desire to have public officials comply with (plaintiffs’ view of) the Constitution, differs from a legal injury” and does not support standing. Freedom From Religion Found., Inc. v. Obama, 641 F.3d 803, 807 (7th Cir. 2011); see also Newdow v. Lefevre, 598 F.3d 638, 641 (9th Cir. 2010); Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1016 (9th Cir. 2010). Of course, Plaintiffs disagree because the Valley Forge plaintiffs objected to the federal government’s transfer of property to a Christian college on general grounds but were not individually “target[ed]” or “affect[ed]” in any way. Pls.’ Opp. at 14. But Valley Forge could just as easily have been characterized as an objection to the transfer’s alleged “message” of “endorsement” of Christianity. See 454 U.S. at 466–68, 486–87.
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This same problem of standalone subjective offensiveness is equally fatal to Plaintiffs’ equal protection claim because “courts have rejected attempts to crosspollinate Equal Protection Clause standing jurisprudence with Establishment Clause cases.” Moore v. Bryant, 853 F.3d 245, 250 (5th Cir. 2017) (citing NAACP v. Horne, 626 F. App’x 200, 201 (9th Cir. 2015) (unpublished)).
B. Family or Members’ Familial Separations Plaintiffs allege that they have standing based on familial separation allegedly caused by the Order. They fail to discuss Bangura v. Hansen, however, in which the Sixth Circuit specifically held that a U.S. citizen spouse has no recognized liberty interest in the “denial of an immediate relative visa,” 434 F.3d 487, 496 (6th Cir. 2006), concluding that the spouse “does not have constitutional standing to challenge the denial of [the spousal visa] petition,” id. at 500. Accord Burrafato v. U.S. Dep’t of State, 523 F.2d 554, 554, 557 (2d Cir. 1975) (denying standing to an American spouse and asserting consular nonreviewability over a visa denial). The Supreme Court’s recent decision in Kerry v. Din, did not disturb these decisions, as its controlling opinion reserved judgment as to whether an American citizen had any protected interest in her husband’s entry. 135 S. Ct. 2128, 2139, 2141 (2015) (Kennedy, J., concurring).2
2 In any event, the alleged right in Din was tied to the fundamental right to 5

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Plaintiffs distinguish this case because it is not a challenge to a consular officer’s decision, but a “categorical policy decision.” Pls.’ Opp. at 17. That would turn this fundamental aspect of immigration law upside-down by granting the President, Secretary of State, and Congress less deference in their foreign-affairs and national-security decisionmaking than individual consular officers. The doctrine is instead premised on the broader separation-of-powers principle that “any policy toward aliens” is “so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1159–60 (D.C. Cir. 1999). That principle has a limited exception for a U.S. person whose own constitutional rights are allegedly violated by a particular alien’s challenged exclusion. Id. at 1163–64. But besides Plaintiffs’ freedom of speech/association claim (addressed below), that exception is inapplicable here.
Moreover, Plaintiffs fail to adequately respond to Defendants’ contention that any alleged injuries stemming from the Order’s suspension of entry are unripe given the Order’s waiver process. Although Plaintiffs contend the waiver process imposes “onerous burdens,” Pls.’ Opp. at 23, they offer no answer to the objection that they are not personally subject to the allegedly discriminatory burden, and the
marry. Din, 135 S. Ct. at 2134 (plurality opinion). Plaintiffs expressly disclaim any 6

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aliens abroad who are subject to the entry suspension have no constitutional rights against discrimination concerning entry. See United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 269–71 (1990); Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). This defect is most glaring as to the organizational Plaintiffs. For example, the ACLU speculates that the waiver process will “make[] it more complicated” for it to conduct activities such as event planning. Pls.’ Opp. at 24, but has not alleged that any planned event is scheduled to occur within the 90-day suspension, nor identified individual from the six countries invited to speak, nor specified how such an individual would be unable to obtain a waiver. See SAC ¶¶ 231–42.
C. Economic Harm The Plaintiffs also assert that the Order “ha[s] caused…significant financial loss” to themselves or their organizations. Pls.’ Opp. at 19. Plaintiffs’ purported economic injuries are insufficient to establish standing. First, such injury is both speculative and not “fairly traceable” to the Order, given that plaintiffs have failed to establish that the Order’s suspension of entry would actually preclude any specific family member (or invitee) from entry during the 90 day suspension period, especially considering the availability of waivers. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1151 (2013).
reliance on such a right. Pls.’ Opp. at 18 n.8. 7

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Second, Plaintiffs’ alleged economic injuries cannot support standing for an Establishment claim because such economic harms would be suffered equally by anyone with relatives from the six designated countries, regardless of their religion. See Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197, 207 (6th Cir. 2011) (en banc) (“[E]ven when litigants have established a substantial injury from a government action, they cannot challenge its constitutionality unless [they] can show that [they are] within the class whose constitutional rights are allegedly infringed.” (quotations omitted)). Under Jefferson County, there cannot be a “mismatch” between the alleged basis for standing and the alleged constitutional violation. Id.
To get around this discrepancy, Plaintiffs blur the line between personal and incidental effects. Plaintiffs’ alleged injuries, however, are insufficient for claims of religious discrimination when all persons (regardless of religion) with family, or organizations doing business, within the six designated countries, are affected the same. Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993). Without personally differential treatment, no amount of pointing to perceived religious stigma can get around this deficiency. See Allen v. Wright, 468 U.S. 737, 757 n.22 (1984) (“[S]tigmatic injury…requires identification of some concrete interest with respect to which
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respondents are personally subject to discriminatory treatment[.]”); Moore, 853 F.3d at 251; Mehdi v. U.S. Postal Serv., 988 F. Supp. 721, 731 (S.D.N.Y. 1997) (Sotomayor, J.). Plaintiffs therefore lack standing under Wright.
II. Plaintiffs’ Claims Fail On The Merits. A. Establishment Clause Plaintiffs insist that the Supreme Court’s decision in Mandel, is either inapplicable, Pls. Opp. at 28–30, or would allow courts to disregard the Order’s stated purpose, id. at 26–28. Plaintiffs are incorrect. First, Plaintiffs assert that Mandel does not apply to the Order, arguing that Congress alone deserves deference in adopting broad immigration policies because it has plenary power over immigration, whereas the President exercises only delegated power. “The right to” exclude aliens, however, “stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 & 543 (1950) (rejecting constitutional challenge to summary exclusion of an alien “because the power of exclusion of aliens is also inherent in the executive department of the sovereign, [and] Congress may in broad terms authorize the executive to exercise the power”). Thus, “[w]hen Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative
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power. It is implementing an inherent executive power.” Id. Here, the fact that Congress has augmented this power by expressly conferring that authority makes Mandel more appropriate, not less. See, e.g., Andrade-Garcia v. Lynch, 828 F.3d 829, 834 (9th Cir. 2016). Indeed, Mandel directly addressed the Executive branch’s exercise of those powers. 408 U.S. at 770. In this case, just as in Mandel, the Court is confronted with the President’s exercise of that immigration power.
Second, Plaintiffs suggest that Establishment Clause claims are exempt from Mandel. Although the Supreme Court has not previously applied Mandel specifically to that Clause, the case involved the same Amendment, Mandel, 408 U.S. at 769–70, and was also applied to allegations of unequal treatment, Fiallo v. Bell, 430 U.S. 787, 792–96 (1977). There is no principled basis for exempting the Establishment Clause, which “establishes a norm of conduct which the Federal Government is bound to honor—to no greater or lesser extent than any other inscribed in the Constitution.” Valley Forge, 454 U.S. at 484. Establishment claims are subject to the same “presumption in favor of the constitutionality of statutes” as other constitutional claims, Bowen v. Kendrick, 487 U.S. 589, 617 (1988), and the same justiciability principles.
Plaintiffs further argue that even if Mandel applies, it requires the Court to consider whether the Order’s stated purpose was given in “bad faith.” Pls.’ Opp. at
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26–28. Mandel makes clear, however, that determining whether the Executive Branch’s decision rests on a “facially legitimate and bona fide reason” does not include “look[ing] behind” that reason. 408 U.S. at 769–70. Courts can ensure that the stated rationale is valid, but Mandel precludes searching for ulterior motives. Id. In the Sixth Circuit, “[t]his standard may be even lower than rational basis review.” Bangura, 434 F.3d at 495; Bains v. United States, 2014 WL 3389117, at *3 (N.D. Ohio July 9, 2014). Courts in the Sixth Circuit therefore “uphold[] immigration [laws] so long as they are conceivably related to the achievement of a federal interest.” Bangura, 434 F.3d at 495 (quotations omitted).
Plaintiffs try to get around this precedent by citing Justice Kennedy’s concurrence in Din, Pls.’ Opp. at 26, which states that absent an “affirmative showing of bad faith on the part of [a] consular officer” denying a visa, “plausibly alleged with sufficient particularity,” a court may not “look behind” the Government’s exclusion decision for additional factual details. 135 S. Ct. at 2141. But Din is inapposite because refusing visas to aliens abroad does not violate Plaintiffs’ own Establishment rights. And even if courts could consider claims of bad faith for consular officers, that would not warrant second-guessing the President’s formal national-security determinations.
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Plaintiffs therefore argue that the Court may examine “readily discoverable fact[s],” should ignore the Order’s stated purpose based on campaign statements, and accept their allegations of what the Order “really” stands for. Pls.’ Opp. at 31 (quoting McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 862 (2005)). Yet Plaintiffs never confront the Supreme Court’s holding that, when “[t]he Executive...deem[s] nationals of a particular country a special threat,” “a court would be ill equipped to determine the[] authenticity and utterly unable to assess the[] adequacy” of that determination. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999). Disregarding the President’s risk assessments and foreign-policy judgments flouts this rule.3
Even if domestic Establishment Clause cases provide the proper standard of review, see Pls.’ Opp. at 30–40, those cases and their progeny are entirely distinguishable because they deal with explicitly religious endorsements. Again, McCreary and the other cases Plaintiffs rely upon concern explicitly religious displays, messages, or endorsement, many of which were expressly confirmed by official pronouncements. 545 U.S. at 868–74. McCreary thus cautioned that
3 Plaintiffs’ mistakenly suggest that because they have alleged that the President’s national security determination is a “pretext for discrimination,” this Court must accept that “factual allegation” as true. Pls.’ Opp. at 27–28. That is incorrect where the allegations are “conclusory legal allegations.” New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1050 (6th Cir. 2011).
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whether official action has an improper purpose should not be assessed by “judicial psychoanalysis of a drafter’s heart of hearts.” Id. at 862–63. Consequently, a statement should only be considered if it is both an official and one that unambiguously reveals the legislative intent without need for any “psychoanalysis.” Id. Here, however, Plaintiffs use campaign statements from before the Order’s existence, which are ambiguous at best.
Regardless, no precedent permits impugning the Order’s express nationalsecurity purpose based on extrinsic material. Plaintiffs likewise cannot dispute that the presumption of regularity applies with the utmost force to the President, and fail to refute the difficulties that “ill equipped” courts would face in attempting “to determine the authenticity” of such national-security judgments. Reno, 525 U.S. at 491. Plaintiffs suggest that these principles pose no obstacle here because the statements at issue “convey an unmistakable and impermissible message” of religious discrimination. Pls.’ Opp. at 36. But the statements’ supposed clarity is irrelevant because Plaintiffs fail to show that they reflect the government’s “official objective.” McCreary, 545 U.S. at 862. Moreover, Plaintiffs’ reliance on campaign statements ignores how “the substantive revisions reflected in [the Order] have reduced the probative value of the President’s [past] statements” and undercut any claim that “the predomina[nt] purpose of [the Order] is to
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discriminate against Muslims based on their religion.” Sarsour v. Trump, 2017 WL 1113305, at *11–12 (E.D. Va. Mar. 24, 2017); see also Washington v. Trump, 2017 WL 1045950, at *4 (W.D. Wash. Mar. 16, 2017) (refusing to “conclude that the policy changes in EO2 are minor”).
B. Equal Protection For purposes of equal protection, the Supreme Court has ordered that courts accept, under rational-basis review, a legislature’s classifications even when not made with “mathematical nicety or because it results in some inequality.” Heller v. Doe, 509 U.S. 312, 321 (1993). The President’s cautious approach of suspending entry of certain foreign nationals from six countries previously determined to pose heightened risks, while his administration reviews current screening procedures to ensure that they adequately detect potential terrorists, easily satisfies Bangura’s “lower than rational basis” test. 434 F.3d at 495. Plaintiffs may disagree with the President’s decision, but it is not for this Court to second-guess it. See, e.g., Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 1979) (“[I]t is not the business of courts to pass judgment on the decisions of the President in the field of foreign policy.”). Plaintiffs argue that Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) is inapplicable, Pls. Opp. at 41–42, but a similar national-security basis existed there, and the Second Circuit unanimously “join[ed] every circuit that ha[d] considered
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the issue in concluding that the Program [did] not violate Equal Protection[.]” Rajah, 544 F.3d at 439 (citations omitted). The Plaintiffs here are no different.
C. Freedom of Speech and Association Finally, even if any of the Plaintiffs had standing to bring a freedom of speech/association claim, the same case that would allow for such standing (Mandel) equally forecloses that claim on the merits. 408 U.S. at 770 (concluding that the First Amendment rights of American scholars and students were not violated when a Belgian scholar whom universities invited to speak was denied entry into the United States). Plaintiffs’ citation to Bays v. City of Fairborn, 668 F.3d 814 (6th Cir. 2012) is entirely inapt because that case dealt with the narrow tailoring of the time, place, and manner restrictions imposed by a city’s solicitation policy. Mandel is on all fours with the present case: Plaintiffs seek to invite aliens abroad to the United States to hear what they have to say. If Plaintiffs have standing to raise a free speech claim, Mandel controls and its requirement of a facially legitimate and bona fide reason for denying entry is satisfied. See, e.g., Ben-Issa v. Reagan, 645 F. Supp. 1556, 1562 (W.D. Mich. 1986).
CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant Defendants’ motion to dismiss.
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Respectfully submitted this 22nd day of May 2017.
CHAD A. READLER Acting Assistant Attorney General
WILLIAM C. PEACHEY Director
GISELA A. WESTWATER Assistant Director
EREZ REUVENI Senior Litigation Counsel
KATHERINE J. SHINNERS Trial Attorney
By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 joshua.press@usdoj.gov
BRIANA YUH Trial Attorney
Attorneys for Defendants
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CERTIFICATE OF SERVICE I hereby certify that on May 22, 2017, I electronically filed the foregoing DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS with the Clerk of the Court for the Eastern District of Michigan by using the CM/ECF system. Notice of this filing will be sent out to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF system.
By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division
17

 
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs,

Case No. 2:17-cv-10310-VAR-SDD

v.

Honorable Victoria A. Roberts

DONALD TRUMP, et al.,

Mag. J. Stephanie D. Davis

Defendants.

BRIEF OF AMICI CURIAE CONSTITUTIONAL LAW PROFESSORS IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Kimberly Thomas (Mich. Bar #P66643) 701 South State Street 3032 South Hall Ann Arbor, MI 48109 (734) 647-4054 kithomas@umich.edu

SIMPSON THACHER & BARTLETT LLP Abram Ellis (N.Y. Bar #4402962) 900 G Street, Northwest Washington, DC 20001 (202) 636-5579 aellis@stblaw.com
Alan Turner (N.Y. Bar #4000147) Reena Mittelman (N.Y. Bar #5219761) Jerry Fang (N.Y. Bar #5417191) Patricia Yan (N.Y. Bar #5499173) 425 Lexington Avenue New York, NY 10017 (212) 455-2000 aturner@stblaw.com reena.mittelman@stblaw.com jerry.fang@stblaw.com patricia.yan@stblaw.com

Counsel for Amici Curiae

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TABLE OF CONTENTS Page
STATEMENT OF THE ISSUES PRESENTED...................................................... ii STATEMENT OF MOST APPROPRIATE AUTHORITIES ................................ iii INDEX OF AUTHORITIES.....................................................................................iv INTERESTS OF AMICI CURIAE .............................................................................1 SUMMARY OF ARGUMENT .................................................................................3 ARGUMENT .............................................................................................................4
I. United States Law Once Condoned Immigration Exclusion Based On Race And Ethnicity But Has Since Rejected Such Invidious Actions ..................................................................................4
II. The Supreme Court Has Recognized Meaningful Limits On The Political Branches’ Authority Over Immigration ........................10
III. Challenges To Immigration Decisions Are Justiciable.......................15 IV. Sections 1182(f) And 1185(a), Like Other Statutory Provisions,
Must Be Construed To Avoid Raising Serious Constitutional Questions .............................................................................................20 V. The Risks Of Undue Deference: A Return To Lessons From History .................................................................................................23 CONCLUSION ........................................................................................................25
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STATEMENT OF THE ISSUES PRESENTED 1. How the assertion of an unchecked Executive power in the immigration
context to justify the Executive Order is informed by the historical legal context that demonstrates the dangers of judicial deference to Executive immigration actions that discriminate on the basis of nationality and race. 2. What the scope of deference to the Executive should be, given the critical role of the judiciary in our constitutional system of reviewing and checking Executive actions alleged to be unconstitutional or to exceed delegated Congressional authority, whether or not those actions relate to immigration or national security. 3. Whether the claims here are justiciable, given that a variety of other challenges to governmental immigration decisions and actions have been found to be justiciable, and every other court to examine the Executive Order at issue here has reached the merits. 4. Whether the congressional delegation of authority to the President under Sections 1182(f) and 1185(a) of the Immigration and Nationality Act can be read to authorize the President to exercise powers in a manner that discriminates unconstitutionally.
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STATEMENT OF MOST APPROPRIATE AUTHORITIES Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986) Allende v. Schultz, 845 F.2d 1111 (1st Cir. 1988) Aziz v. Trump, --- F. Supp. 3d ---, No. 1:17-cv-116, 2017 WL 580855 (E.D. Va.
Feb. 13, 2017) Doe v. Trump, --- F. Supp. 3d ---, No. 17-cv-112, 2017 WL 975996 (W.D. Wis.
Mar. 10, 2017) Gomez v. United States, 490 U.S. 858 (1989) Hamdan v. Rumsfeld, 548 U.S. 557 (2006) Hawaii v. Trump, --- F. Supp. 3d ---, No. 17-cv-50, 2017 WL 1011673 (D. Haw.
Mar. 15, 2017) I.N.S. v. Chadha, 462 U.S. 919 (1983) Int’l Refugee Assistance Project v. Trump, --- F. Supp. 3d ---, No. 17-cv-361, 2017
WL 1018235 (D. Md. Mar. 16, 2017) Marbury v. Madison, 5 U.S. 137 (1803) U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) Zadvydas v. Davis, 533 U.S. 678 (2001) 8 U.S.C. § 1152(a) (§ 1152(a) of the Immigration and Nationality Act)
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INDEX OF AUTHORITIES
Page(s)
Cases
Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986) ..................................................................... 13, 18
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)..............................................................................................25
Allende v. Schultz, 845 F.2d 1111 (1st Cir. 1988)........................................................................ 13, 18
Am. Acad. of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009) .......................................................................... 13, 17
Aziz v. Trump, --- F. Supp. 3d ---, No. 1:17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) .......................................................................................................19
Bertrand v. Sava, 684 F.2d 204 (2d Cir. 1982) .................................................................................14
Boumediene v. Bush, 553 U.S. 723 (2008)..............................................................................................17
Chae Chan Ping v. United States, 130 U.S. 581 (1889)..........................................................................................7, 10
City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)..............................................................................................25
Doe v. Trump, --- F. Supp. 3d ---, No. 17-cv-112, 2017 WL 975996 (W.D. Wis. Mar. 10, 2017).......................................................................................................19
Fiallo v. Bell, 430 U.S. 787 (1977)..............................................................................................14
Fisher v. Univ. of Tex. at Austin, -- U.S. ---, 133 S. Ct. 2411 (2013) ........................................................................24
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Fong Yue Ting v. United States, 149 U.S. 698 (1893)................................................................................................7
Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014) .................................................................................12
Gomez v. United States, 490 U.S. 858 (1989)..............................................................................................20
Guessous v. Fairview Prop. Invs., 828 F.3d 208 (4th Cir. 2016) ..................................................................................7
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)..............................................................................................16
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)..............................................................................................17
Hawaii v. Trump, --- F. Supp. 3d ---, No. 17-cv-50, 2017 WL 1011673 (D. Haw. Mar. 15, 2017) ...............................................................................................................19
Hazama v. Tillerson, 851 F.3d 706 (7th Cir. 2017) ................................................................................17
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987)....................................................................................... 12, 16
I.N.S. v. Chadha, 462 U.S. 919 (1983)..............................................................................................11
I.N.S. v. St. Cyr, 533 U.S. 289 (2001)..............................................................................................21
Int’l Refugee Assistance Project v. Trump, --- F. Supp. 3d ---, No. 17-cv-361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) ...............................................................................................................19
Jean v. Nelson, 472 U.S. 846 (1985)................................................................................. 16, 21, 22
Johnson v. Robison, 415 U.S. 361 (1974)..............................................................................................20
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Kerry v. Din, --- U.S. ---, 135 S. Ct. 2128 (2015)................................................................ 13, 14
Kleindienst v. Mandel, 408 U.S. 753 (1972)........................................................................... 12, 13, 14, 17
Korematsu v. United States, 323 U.S. 214 (1944)................................................................................. 23, 24, 25
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953)................................................................................................8
Louhghalam v. Trump, --- F. Supp. 3d ---, No. 17-cv-10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017) .........................................................................................................19
Loving v. Virginia, 388 U.S. 1 (1967)..................................................................................................25
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1999)..............................................................................................15
Mandel v. Mitchell, 325 F. Supp. 620 (E.D.N.Y. 1971) .......................................................................17
Marbury v. Madison, 5 U.S. 137 (1803)..................................................................................................10
Negusie v. Holder, 555 U.S. 511 (2009)....................................................................................... 12, 16
Oyama v. California, 332 U.S. 633 (1948)..............................................................................................10
Printz v. United States, 521 U.S. 898 (1997)..............................................................................................12
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) .................................................................................15
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)..............................................................................................24
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Sarsour v. Trump, --- F. Supp. 3d ---, No. 1:17-cv-120, 2017 WL 1113305 (E.D. Va. Mar. 24, 2017).......................................................................................................20
Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953)................................................................................................9
Spokeo, Inc. v. Robins, --- U.S. ---, 136 S. Ct. 1540 (2016).......................................................................16
U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)....................................................................................... 11, 12
U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)..........................................................................................8, 16
United States v. Ju Toy, 198 U.S. 254 (1905)................................................................................................7
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982)..............................................................................................16
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ..............................................................................19
Webster v. Doe, 486 U.S. 592 (1988)..............................................................................................20
Zadvydas v. Davis, 533 U.S. 678 (2001)................................................................................. 10, 20, 21
Legislative Materials
70 Cong. Rec. 3620 (1929) (statement of Rep. William Thomas Fitzgerald) ...............................................................................................................6
70 Cong. Rec. 4907 (1929) (statement of Rep. Jed Johnson) ...................................6
H.R. Rep. No. 45-62 (1879).......................................................................................5
H.R. Rep. No. 68-350 (1924).....................................................................................6
H.R. Res. 683, 112th Cong. (2012)............................................................................8 vii

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REPORT OF THE COMM’N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, PERSONAL JUSTICE DENIED (1982).................................................24
S. Res. 201, 112th Cong. (2011)................................................................................8 Statutes 22 U.S.C. § 6411 ......................................................................................................23 8 U.S.C. § 1182(a)(27).............................................................................................13 8 U.S.C. § 1182(a)(3)...............................................................................................23 8 U.S.C. § 1182(f) ............................................................................................. 22, 23 8 U.S.C. § 1185(a) ............................................................................................ 22, 23 Act of April 27, 1904, ch. 1630, 33 Stat. 428 (1904) ................................................5 Act of February 5, 1917, ch. 29, § 3, 39 Stat. 874 (1917) .........................................5 Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (1882).....................................5 Chinese Exclusion Repeal Act of 1943, ch. 344, 57 Stat. 600 (1943) ......................8 Expatriation Act of 1907, ch. 2534, § 3, 34 Stat. 1228 (1907)..................................6 Immigration Act of 1924, ch. 190, § 11, 43 Stat. 153 (1924)....................................6 Immigration Act of 1924, ch. 190, § 13, 43 Stat. 153 (1924)....................................6 Immigration and Nationality Act, ch. 477, § 311, 66 Stat. 163 (1952) .....................8 Immigration and Nationality Act, Pub. L. No. 89-236, sec. 202, § 2(a),
79 Stat. 911 (1965) (codified at 8 U.S.C. § 1152(a)) .......................................8, 22 Naturalization Act of 1790, ch. III, 1 Stat. 103 (1790)..............................................5 Page Act of 1875, ch. 141, 18 Stat. 477 (1875).........................................................5 Rules and Regulations Proclamation No. 4417, An American Promise, 41 Fed. Reg. 7,741
(Feb. 20, 1976) ......................................................................................................24
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Other Authorities
Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933 (1995) ............................................................................................9
Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1 (1998) ......................................................................................................................9
Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 479 (2010)....................................................11
HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES (2006)..............................5
Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990) ........................................................................................9
IAN HANEY-LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996) ............................................................................................................7
Jamal Greene, The Anticanon, 125 Harv. L. Rev. 380 (2011) ................................23
Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proc. Am. Phil. Soc’y 117 (2016) ........................9
Khaled A. Beydoun, Between Muslim and White: The Legal Construction of Arab American Identity, 69 N.Y.U. Ann. Surv. Am. L. 29 (2013) ............................................................................................................7
Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. Rev. 1575 (2002) ......................................................................................................................7
LOUIS HENKIN, THE AGE OF RIGHTS (1990) ............................................................10
Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1 (1984) ......................................................................................................9
Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255 (1984) ..........................................9
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T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365 (2002)............................9
Vicki C. Jackson, Standing and the Role of Federal Courts: Triple Error Decisions in Clapper v. Amnesty International USA and City of Los Angeles v. Lyons, 23 Wm. & Mary Bill Rts. J. 127 (2014) .....................16
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INTERESTS OF AMICI CURIAE Amici curiae are scholars of constitutional law, federal court jurisdiction, and the law of immigration, national security, and citizenship.1 Because of our areas of expertise, Amici write to provide an overview of the history and governing legal principles of judicial review of Executive Branch decisions related to immigration and national security. Given the jurisprudence, Amici believe that this Court should reach the merits of the claims that the Executive’s actions were in excess of its statutory authority and violated the Constitution. Amici are the following scholars2: Bruce Ackerman, Sterling Professor of Law and Political Science, Yale Law School; Janet Cooper Alexander, Frederick I. Richman Professor of Law, Emerita, Stanford Law School; Stuart Banner, Norman Abrams Professor of Law, UCLA School of Law;
1 Amici certify that no party’s counsel authored any part of this brief, and no party or person other than Amici or their counsel made any monetary contribution intended to fund preparation or submission of this brief. All parties have consented to the filing of this amicus curiae brief. 2 Institutional affiliations are included for identification purposes only and do not represent the views of the institutions.
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Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law;
Gabriel J. Chin, Edward L. Barrett Chair of Law and Martin Luther King, Jr. Professor of Law, UC Davis School of Law;
Kristin Collins, Professor of Law and Associate Dean for Intellectual Life, Boston University School of Law;
Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia Law School;
Geoffrey Hoffman, Clinical Associate Professor, University of Houston Law Center;
Catherine Y. Kim, Associate Professor of Law, University of North Carolina School of Law;
Hiroshi Motomura, Susan Westerberg Prager Professor of Law, UCLA School of Law;
Burt Neuborne, Norman Dorsen Professor of Civil Liberties, New York University School of Law;
Gene R. Nichol, Boyd Tinsley Distinguished Professor of Law, University of North Carolina School of Law;
Judith Resnik, Arthur Liman Professor of Law, Yale Law School; Jonathan Weinberg, Professor of Law, Wayne State University Law School.
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SUMMARY OF ARGUMENT Amici make four points. First, it is essential to evaluate the Executive’s assertions of unfettered discretion, plenary power, and non-reviewability of decisions related to immigration in the historical context of U.S. immigration law and policy. This history demonstrates the harm of excessive deference to Executive Branch claims that national security requires the government to target groups based on nationality and race. The powerful exemplar is, of course, the evacuation and detention of more than 100,000 Japanese-Americans during World War II, to which the courts acceded and for which both the Executive and Congress later apologized. Since World War II, however, immigration law—as reflected both in legislation and in the jurisprudence of the Supreme Court—has evolved to reflect emerging norms of racial equality and individual liberty. Second, courts have developed and articulated meaningful constraints on the immigration authority of the political branches. While Congress and the President are entitled to deference on matters related to immigration and national security, they have no authority to ignore the Constitution. Animated by concerns relating to individual rights, separation-of-powers, and federalism, courts have sought to ensure that the political branches do not violate constitutional prohibitions on arbitrary decision-making or promote invidious discrimination.
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Third, Amici explain the role of justiciability doctrines in the development of these constraints. Although petitioners in the array of litigated immigration cases have not always succeeded in overturning decisions on the merits, courts have generally reached the merits rather than rely on justiciability doctrines such as ripeness and standing to avoid making decisions. Those merits decisions underscore that the refusal to permit entry to individuals affects not only persons outside the United States, but also citizen and U.S. resident family members, employers, universities, States, localities and the public at large.
Fourth, when responding to claims related to immigration, courts have regularly sought to examine whether, under the doctrine of constitutional avoidance, statutes should be read to allow unfettered Executive Branch authority. Even in the face of text seeming to constrain judicial review, the courts have shouldered the responsibility of ensuring that America’s rule of law applies to actions of American officials.
ARGUMENT I. United States Law Once Condoned Immigration Exclusion Based On
Race And Ethnicity But Has Since Rejected Such Invidious Actions No student of United States history can ignore that our Nation’s immigration policies once routinely employed notions of racial and cultural inferiority to exclude classes of noncitizens as threats to our safety and stability. And when these practices were challenged, the government regularly asserted that its authority was
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unconstrained—or “plenary.” But the lesson to be drawn from this unhappy history is the importance of America’s rejection of racial and ethnic restrictions on immigration. Just as Congress and the courts were once central in permitting such discrimination, so too Congress and the courts have been essential to the revision of those practices. Below, we sketch the rise and fall of overt discrimination in immigration based on race and ethnicity.
From the late eighteenth century through World War II, both Congress and the courts condoned immigration exclusion based on race and ethnicity. As early as the Naturalization Act of 1790, Congress restricted immigrant eligibility for citizenship to “free white person[s].” Ch. III, 1 Stat. 103 (1790). Beginning in 1875, Congress enacted a series of laws targeting and ultimately prohibiting virtually all Chinese immigration. See, e.g., Page Act of 1875, ch. 141, 18 Stat. 477 (1875); Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (1882); Act of April 27, 1904, ch. 1630, 33 Stat. 428 (1904). Congress asserted that these measures were needed to remedy “a standing menace to the social and political institutions of the country.” H.R. Rep. No. 45-62, at 3 (1879). In 1917, Congress expanded the scope of excludability by creating an “Asiatic Barred Zone,” stretching from Saudi Arabia to the Polynesian islands. See Act of February 5, 1917, ch. 29, § 3, 39 Stat. 874, 876 (1917); see generally HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES 103 (2006).
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The Immigration Act of 1924 went further, barring entry of all immigrants unless they were eligible for citizenship, which at that time encompassed only “free white persons” and “aliens of African nativity and . . . persons of African descent.” See ch. 190, § 13, 43 Stat. 153, 161–62 (1924); H.R. Rep. No. 68-350, at 6 (1924) (internal quotation marks omitted). The Act also imposed strict national-origin quotas. See § 11, 43 Stat. at 159–60. Again, such measures were characterized as necessary to our national survival: “If . . . the principle of individual liberty, guarded by a constitutional government created on this continent nearly a century and a half ago, is to endure, the basic strain of our population must be maintained . . . .” H.R. Rep. No. 68-350, at 13.
As hostility emerged toward other groups, claims were made that they, too, would bring poverty, disease, alcohol, labor competition, and other challenges to America’s identity. One Representative claimed that “hordes of undesirable aliens . . . [were] undermining [the] health, integrity, and moral fiber of the forthcoming generations.” 70 Cong. Rec. 4907 (1929) (statement of Rep. Jed Johnson). Another argued the need to stop foreigners from “poisoning the American citizen.” 70 Cong. Rec. 3620 (1929) (statement of Rep. William Thomas Fitzgerald). Moreover, gender and racial stereotypes interacted, as legislation mandated that American women who married noncitizens lost their United States citizenship. Expatriation Act of 1907, ch. 2534, § 3, 34 Stat. 1228, 1228–29 (1907).
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The courts likewise endorsed invidious exclusions through references to the “plenary” power of the political branches over immigration. For example, in Chae Chan Ping v. United States, a unanimous Court reasoned that in light of the “Oriental invasion” posing a “menace to our civilization,” if Congress “considers the presence of foreigners of a different race in this country . . . to be dangerous to its peace and security, their exclusion is not to be stayed.” 130 U.S. 581, 595, 606 (1889); see also United States v. Ju Toy, 198 U.S. 254, 259–60, 263–64 (1905) (denying habeas review over exclusion of individual claiming U.S. citizenship); Fong Yue Ting v. United States, 149 U.S. 698, 732 (1893) (sustaining expulsion of U.S. resident for failing to produce a “white” witness to testify to his lawful presence). Such discrimination frequently conflated race with national origin and ethnicity.3
Beginning in the middle of the twentieth century, however, both Congress and the Supreme Court moved decisively away from these attitudes. In 1943, Congress repealed the prohibition on Chinese admissions. See Chinese Exclusion Repeal Act
3 Today, the conflation of Muslim and Arab identity and the discrimination against “persons who ‘appear Middle Eastern, Arab, or Muslim’” have been well chronicled. See generally, e.g., Khaled A. Beydoun, Between Muslim and White: The Legal Construction of Arab American Identity, 69 N.Y.U. Ann. Surv. Am. L. 29 (2013); Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. Rev. 1575 (2002); IAN HANEY-LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE 106 (1996); see also Guessous v. Fairview Prop. Invs., 828 F.3d 208, 225 (4th Cir. 2016) (noting that anti-Muslim animus may constitute “race” discrimination).
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of 1943, ch. 344, 57 Stat. 600 (1943).4 In 1952, Congress guaranteed that the “right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex . . . .” Immigration and Nationality Act, ch. 477, § 311, 66 Stat. 163, 239 (1952). Then, in 1965, it finally rejected the premise of racialized national exclusivity by abandoning the national-origin immigrant quota systems. See Immigration and Nationality Act, Pub. L. No. 89-236, 79 Stat. 911, 911–12 (1965). Moreover, it specifically provided that with regard to the issuance of immigrant visas, “[n]o person shall receive any preference or priority or be discriminated against . . . because of his race, sex, nationality, place of birth, or place of residence.” Id. at 911.
Within the judiciary, the insistence on constitutional protections in the immigration context initially was uneven. On the one hand, Kwong Hai Chew v. Colding rejected the contention that a lawful permanent resident could be excluded from the United States without being given notice of the charges justifying his exclusion and an opportunity to object. 344 U.S. 590, 603 (1953). On the other hand, both U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), which sustained exclusion of a war bride without any hearing, and Shaughnessy v. U.S. ex rel. Mezei,
4 Decades later, both the House and Senate apologized for the government’s policies of Chinese exclusion. See H.R. Res. 683, 112th Cong. (2012); S. Res. 201, 112th Cong. (2011).
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345 U.S. 206 (1953), which upheld the exclusion and indefinite detention of a returning noncitizen without a hearing, represented steps backwards.
Subsequent to those Cold War era decisions, however, the Supreme Court— while continuing to recognize the need for appropriate deference—retreated from the Knauff/Mezei licensing of unfettered government power in immigration decisions. See generally Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933 (1995). A wealth of scholarship has chronicled this shift in doctrine as due process and equal protection norms came to be reflected—albeit with variations— in immigration law. See, e.g., Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 4 (1984); Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545, 547 (1990); T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365, 365–66 (2002); Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1, 54– 58 (1998); Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proc. Am. Phil. Soc’y 117, 133 (2016); Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255, 257–58 (1984).
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The vision of law that supported judicial approval of such discriminatory legislation and produced pejoratives such as “‘the yellow peril,’” Oyama v. California, 332 U.S. 633, 658–59 (1948) (Murphy, J., concurring), have come to be seen as tragic moments in our Nation’s history. As Professor Louis Henkin put it, the invidious discrimination sanctioned in Chae Chan Ping had become “an embarrassment”; indeed, Chae Chan Ping and cases like it represented “relics of a bygone, unproud era.” LOUIS HENKIN, THE AGE OF RIGHTS 137 (1990). II. The Supreme Court Has Recognized Meaningful Limits On The
Political Branches’ Authority Over Immigration Our democratic system obligates the judiciary to constrain any unconstitutional excesses of the political branches. See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). Notwithstanding the deference afforded to immigration regulation by the political branches, the Supreme Court has imposed meaningful constraints on legislative and Executive overreach. The Court’s jurisprudence on immigration reflects its oversight of both individual constitutional rights as well as structural separation-of-powers norms. For example, in Zadvydas v. Davis, 533 U.S. 678, 695 (2001), rejecting the Executive’s claim of authority to indefinitely detain a noncitizen who had been ordered deported but could not be repatriated to another country, the Court emphasized that even in the realm of immigration, the political branches remain “subject to important constitutional limitations.”
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Further, the Supreme Court has enforced structural norms designed to protect against “arbitrary” immigration decisions by any single branch of government. In I.N.S. v. Chadha, 462 U.S. 919 (1983), the Court rejected Congress’s attempt to impose a one-house legislative veto over an Executive Branch decision to deport a particular alien, emphasizing that the procedural requirements of bicameralism and presentment were necessary “to protect the whole people from improvident laws,” to ensure that federal policymaking is subject to “full study and debate in separate settings,” and to “preclud[e] final arbitrary action of one person.” Id. at 951.
Similarly, the Court has exercised meaningful review over agencies’ immigration decisions to protect separation-of-powers norms requiring careful deliberation, reasoned decision-making, and non-arbitrariness, just as it has over administrative decisions outside of the immigration context. See, e.g., Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 479, 499 (2010). U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), is illustrative. There, the Supreme Court held that the Attorney General deprived a noncitizen of a fair hearing on an application for discretionary relief from removal when he circulated the alien’s name on a list of “‘unsavory’” characters who should be deported. Id. at 264. The Court concluded that, although the Attorney General retained ultimate discretionary authority to grant or deny such relief, the Attorney General could not circumvent regulatory procedures requiring the Board of
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Immigration Appeals to first render judgment on such applications. Id. at 267; see also I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987) (rejecting Executive’s interpretation of statutory term “well-founded fear of persecution” for asylum admissions); Negusie v. Holder, 555 U.S. 511, 514 (2009) (rejecting Executive’s interpretation of provision disqualifying individuals who were “coerced” into persecuting others from eligibility for asylum). In sum, notwithstanding the discretion properly recognized in the political branches with respect to many aspects of immigration law, the courts remain responsible for ensuring that those powers are exercised consistently with constitutional norms.5
To be sure, when reviewing the merits of immigration decisions, courts have sometimes deferred to the Executive’s judgments. In Kleindienst v. Mandel, 408 U.S. 753, 769–70 (1972), the Court held that the Attorney General’s decision to deny a waiver of inadmissibility to an alien would be sustained as long as the government provided a “facially legitimate and bona fide reason” for its decision. Subsequent courts generally have been unwilling to “look behind” the government’s stated justification when the justification itself was facially legitimate and bona fide. See,
5 Further constraints on the political branches’ immigration powers have come from the structure of “Our Federalism,” illustrated by decisions applying—in the immigration context—the non-commandeering principle of Printz v. United States, 521 U.S. 898 (1997). See, e.g., Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) (“[T]he federal government cannot command the government agencies of the states to imprison persons of interest to federal officials.”).
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e.g., Kerry v. Din, --- U.S. ---, 135 S. Ct. 2128 (2015) (Kennedy, J., concurring) (denial premised on terrorist activity); Am. Acad. of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009) (denial premised on material support for terrorism).
Such deference, however, does not amount to a judicial rubber stamp. To the contrary, courts have shown less deference when the government’s stated justifications raised constitutional concerns. For example, in both Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986), and Allende v. Schultz, 845 F.2d 1111 (1st Cir. 1988), the government denied visas to noncitizens based on their affiliation with groups deemed hostile to the United States. The Executive cited to its broad statutory discretion under 8 U.S.C. § 1182(a)(27), which barred the entry of aliens who “seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States.” While acknowledging Mandel’s standard of deference, the First Circuit and the D.C. Circuit interpreted the statute narrowly to bar an alien’s entry only if the reason for the threat to public interest, welfare, safety, or security was “independent of the fact of membership in or affiliation with the proscribed organization.” Abourezk, 785 F.2d at 1058 (emphasis in original); see also Allende, 845 F.2d at 1116.
That approach is consistent with Justice Kennedy’s concurrence in Kerry v. Din, which involved the denial of a visa to the spouse of a United States citizen.
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Justice Kennedy’s opinion—joined by Justice Alito (thereby providing a majority to sustain the visa denial)—concluded that the government had provided a “facially legitimate and bona fide” reason for its decision based on its individualized conclusion that Din’s husband had been involved in terrorist activity. 135 S. Ct. at 2140. But Din did not involve allegations of invidious discrimination or arbitrary classifications, and Justice Kennedy noted that under Mandel, an “affirmative showing of bad faith” would require a court to “‘look behind’” the stated reasons for a decision. Id. at 2141; see also Bertrand v. Sava, 684 F.2d 204, 212 (2d Cir. 1982) (holding that “discretion may not be exercised to discriminate invidiously against a particular race or group or to depart without rational explanation from established policies,” and that such exercise would fail Mandel’s standard). These cases reflect that the government’s reasons must be both “facially legitimate” and “bona fide,” and where the government’s stated reasons rely on constitutionally suspect and arbitrary classifications, courts will exercise closer scrutiny.
Pursuant to such scrutiny, courts have sometimes sustained the use of suspect or quasi-suspect classifications in immigration decisions. In Fiallo v. Bell, the Court sustained a legislative provision denying preferential immigration status based on the relationship between an illegitimate child and his or her biological father. 430 U.S. 787, 794 (1977). And in Rajah v. Mukasey, the Second Circuit upheld the special registration program implemented shortly after 9/11 requiring non-
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immigrant males over the age of 16 from twenty-five countries, all but one of which was predominantly Muslim, to appear for registration and fingerprinting and to present immigration documents. 544 F.3d 427, 435–39 (2d Cir. 2008).
But neither race nor ethnicity nor religion is a facially legitimate reason for excluding aliens, and national-origin classifications are upheld only in narrow circumstances. Indeed, even in Rajah, the court “agree[d] that a selective prosecution based on [] animus [toward Muslims] would call for some remedy.” Id. at 438–39 (finding, however, no evidence of “improper animus toward Muslims”). As Rajah demonstrates, while the political branches may sometimes employ disfavored classifications to regulate immigration, courts will carefully scrutinize such classifications—especially where animus might be at issue. III. Challenges To Immigration Decisions Are Justiciable
Doctrines of justiciability represent important concerns about when the federal judiciary should assess claims of violations of legal rights. The now-classic statement of the standing doctrine comes from Justice Scalia’s plurality opinion in Lujan v. Defenders of Wildlife: To establish standing, a plaintiff must allege (1) an “injury in fact” that is (2) “fairly . . . trace[able] to the challenged action of the defendant,” and that is (3) “likely” to be “redressed by a favorable decision.” 504 U.S. 555, 560–61 (1999) (citations omitted). The injury-in-fact must be both concrete and particularized. See Spokeo, Inc. v. Robins, --- U.S. ---, 136 S. Ct. 1540,
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1545 (2016). This requirement helps ensure that federal courts resolve legal problems in a “factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). However, while standing and other justiciability doctrines enshrine important separation-of-powers principles, they should not be used to insulate large categories of political branch behavior from judicial review. See generally Vicki C. Jackson, Standing and the Role of Federal Courts: Triple Error Decisions in Clapper v. Amnesty International USA and City of Los Angeles v. Lyons, 23 Wm. & Mary Bill Rts. J. 127 (2014).
Supreme Court jurisprudence makes clear that even when noncitizens do not have a “right” to enter or to remain in the United States, they can be heard on the merits of their claims that they were treated unlawfully. See, e.g., Negusie, 555 U.S. at 513–15 (discretionary denial of asylum); Cardoza-Fonseca, 480 U.S. at 424–25 (same); Jean v. Nelson, 472 U.S. 846, 853–54 (1985) (discretionary grants of parole for migrants without documents); Accardi, 347 U.S. at 266–68 (discretionary suspension of deportation). The Supreme Court has even addressed the merits of claims brought by noncitizens outside the United States believed to have engaged in terrorism. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006). In each case, the Court concluded that while Executive Branch claims based on national security are properly entitled to significant deference, that deference is not a “‘blank check.’” Id.
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at 576–78, 636 (2006) (Breyer, J., concurring) (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion)); see also Boumediene v. Bush, 553 U.S. 723, 771–72 (2008).
The Court has further found that U.S. citizens and residents have standing to challenge denial of a visa to a noncitizen when it implicates their own constitutional interests. In Mandel, the Court held that the First Amendment interests of American professors who had invited Mandel to speak at their conferences made the case justiciable because the professors themselves suffered a constitutionally cognizable injury. The lower court explained:
Here the plaintiffs other than Mandel are directly involved with Mandel’s entry because they have invited him, and they expect to participate in meeting with him or expect to be among his auditors. No more is required to establish their standing. . . . The special relation of plaintiffs to Mandel’s projected visit gives them a specificity of interest in his admission, reinforced by the general public interest in the prevention of any stifling of political utterance, that abundantly satisfies ‘standing’ requirements. Mandel v. Mitchell, 325 F. Supp. 620, 632 (E.D.N.Y. 1971). Circuit courts have followed this approach. See, e.g., Hazama v. Tillerson, 851 F.3d 706, 707 (7th Cir. 2017) (holding that district court improperly concluded it lacked jurisdiction to review visa denial); Am. Acad. of Religion, 573 F.3d at 118 (exercising jurisdiction over visa denial). In addition, where plaintiffs challenge a policy of visa denials rather than the application of a concededly legitimate policy to a particular individual, the case
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remains justiciable regardless of whether particular individuals have been denied or granted a visa pursuant to the policy. For example, in Abourezk, 785 F.2d at 1043, the government had denied visas to several groups of noncitizens on the basis of the applicants’ membership with organizations or governments hostile to the United States. The government argued that there was no live case or controversy because the State Department considers each visa application on a case-by-case basis. Rejecting that contention, the Court of Appeals concluded that “the reasons for the visa denials offered . . . indicate that the prospect of future denials of applications . . . is a genuine, and not merely a theoretical, possibility.” Id. at 1052. Similarly, in Allende, the court held that the case was not moot even though the applicant had ultimately obtained permission to enter:
Although the specific application of that policy against Allende in March 1983 is moot, the validity of that policy in general remains a live controversy. And since the existence of the policy continues to effect [sic] the actions of the plaintiffs who may reasonably expect that the government will oppose future plans to extend speaking invitations to Allende, we find the Article III case or controversy requirement satisfied. 845 F.2d at 1115 n.7. In both cases, the government’s general policy of denying visas to members of particular organizations rendered the injury sufficiently likely even if the policy was not applied uniformly in every case. Consistent with these principles, all of the federal courts that have examined the January 27 Executive Order addressed the merits, and all but one found that
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questions of its constitutional infirmity warranted enjoining the Order’s enforcement. In Washington v. Trump, 847 F.3d 1151, 1164 (9th Cir. 2017), a unanimous Ninth Circuit panel concluded that the State plaintiffs had established standing to challenge the Order and were likely to succeed on the merits of their due process claims. In Aziz v. Trump, --- F. Supp. 3d ---, No. 1:17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017), a Virginia district court found that the Commonwealth of Virginia had standing; a likelihood of success on the merits of its Establishment Clause claim in light of the government’s public statements regarding its policy; and that evidence of bad faith precluded deference to the government’s stated rationale under the “facially legitimate and bona fide reason” standard. But cf. Louhghalam v. Trump, --- F. Supp. 3d ---, No. 17-cv-10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017) (denying extension of temporary restraining order).
Likewise, all four district courts considering the legality of the revised March 6 Executive Order have reached the merits, and three enjoined implementation of that Order, finding that it raises the same constitutional concerns as the original Order. See Int’l Refugee Assistance Project v. Trump, --- F. Supp. 3d ---, No. 17-cv361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) (finding likelihood of success on Establishment Clause claim); Hawaii v. Trump, --- F. Supp. 3d ---, No. 17-cv-50, 2017 WL 1011673 (D. Haw. Mar. 15, 2017) (same); Doe v. Trump, --- F. Supp. 3d ---, No. 17-cv-112, 2017 WL 975996 (W.D. Wis. Mar. 10, 2017) (finding plaintiff’s
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claims “have at least some chance of prevailing for the reasons articulated by other courts” to warrant temporary restraining order). But see Sarsour v. Trump, --- F. Supp. 3d ---, No. 1:17-cv-120, 2017 WL 1113305 (E.D. Va. Mar. 24, 2017) (denying motion for temporary restraining order). None of these courts refused to consider the plaintiffs’ claims on justiciability grounds. IV. Sections 1182(f) And 1185(a), Like Other Statutory Provisions, Must Be
Construed To Avoid Raising Serious Constitutional Questions It is a “cardinal principle” of statutory interpretation that when an Act of Congress raises “a serious doubt” as to its constitutionality, the Supreme Court “will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Zadvydas, 533 U.S. at 689 (internal quotation marks omitted). The Supreme Court has repeatedly emphasized that it will “avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.” Gomez v. United States, 490 U.S. 858, 864 (1989). Moreover, statutes in tension with basic constitutional values are construed in accord with strong “clear statement” presumptions, requiring that—in the absence of explicit language—a statute will not be interpreted to trench on those fundamental values. See, e.g., Webster v. Doe, 486 U.S. 592, 603–05 (1988); Johnson v. Robison, 415 U.S. 361, 373–74 (1974). Recognizing that the political branches’ regulation of immigration “is subject to important constitutional limitations,” Zadvydas, 533 U.S. at 695, the Supreme
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Court has repeatedly applied the canon of constitutional avoidance to limit immigration provisions that on their face appeared to confer unconstrained authority. In I.N.S. v. St. Cyr, 533 U.S. 289, 311 (2001), for instance, the Court rejected the government’s claim that a statute providing that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed” certain crimes precluded judicial review over a habeas challenge. Concluding that such a reading would raise serious constitutional questions under the Suspension Clause, the Court held that the denial of discretionary relief for a removable alien is subject to judicial review. In Zadvydas, too, where the statute contained no time limit on the detention of certain aliens, the Court read the statute to include an implicit reasonableness limitation and emphasized that “[w]e have read significant limitations into other immigration statutes in order to avoid their constitutional invalidation.” 533 U.S. at 689.
Likewise, in Jean v. Nelson, the Supreme Court rejected the Eleventh Circuit’s ruling that the Executive Branch may deny parole to arriving aliens on the basis of race or national origin notwithstanding Equal Protection guarantees. 472 U.S. 846 (1985). The Court held that the lower court had erred in failing to employ the doctrine of constitutional avoidance. Although Congress had delegated to the Executive broad discretion to “parole into the United States temporarily under such conditions as he may prescribe . . . any alien applying for admission into the United
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States,” the Court recognized that such delegation did not authorize decisions on the basis of race or national origin. Id. at 855–56.
Like the provision at issue in Jean v. Nelson, the provisions relied upon by the government here—sections 1182(f) and 1185(a)—appear to grant broad discretion to the Executive Branch. See 8 U.S.C. § 1182(f); 8 U.S.C. § 1185(a). Just as the Supreme Court did in Jean v. Nelson, this Court should read those broad delegations of authority in a manner to avoid reaching thorny questions concerning the constitutionality of arbitrarily excluding individuals from the United States on the basis of race, ethnicity, national origin, or religion. Such a reading is particularly warranted in light of Congress’s explicit prohibition against discrimination in section 1152(a). That provision, part of the Immigration Act of 1965 enacted after sections 1182(f) and 1185(a), guarantees: “No person shall . . . be discriminated against in the issuance of an immigrant visa because of [the person’s] race, sex, nationality, place of birth, or place of residence . . . .” Pub. L. No. 89-236, sec. 202, § 2(a), 79 Stat. 911 (1965) (codified at 8 U.S.C. § 1152(a)). Concededly, section 1152(a) does not on its face extend to the issuance of nonimmigrant visas, which were not the focus of the Immigration Act of 1965, nor does it prohibit discrimination on the basis of religion. Nonetheless, it reflects a congressional and constitutional norm disfavoring traditionally suspect classifications. The revised Order is also in tension
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with the specific statutory criteria for excluding persons believed to be involved in terrorist activity. See 8 U.S.C. § 1182(a)(3).6
Given the seriousness of the constitutional issues raised by the Executive Order of March 6, 2017, the canon of constitutional avoidance compels reading sections 1182(f) and 1185(a) as complying with the anti-discrimination norms enacted by Congress and embedded in the Constitution. V. The Risks Of Undue Deference: A Return To Lessons From History
Judicial deference to Government assertions of national security threats posed by particular nationalities or ethnicities has had tragic results, as exemplified most powerfully by the courts’ response to Japanese internment during World War II. Korematsu v. United States, 323 U.S. 214 (1944), has rightly become part of an “anticanon”—deployed as an example of what United States law no longer accepts as constitutional. See Jamal Greene, The Anticanon, 125 Harv. L. Rev. 380, 396, 456–60 (2011). In Korematsu, the Supreme Court, by a 6-3 vote, deferred to the government’s assertion that national security required the detention of over 100,000 Japanese-Americans based on their ethnicity alone. 323 U.S. at 218–19. A
6 The revised Order is also at odds with this Nation’s leadership role in protecting religious freedom in both domestic and international settings. In 1998, Congress established an Office of International Religious Freedom in the State Department, which prepares Annual Reports on International Religious Freedom. See 22 U.S.C. § 6411. This congressional directive is inconsistent with the notion that Congress intended to authorize the President to discriminate on the basis of religion.
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Congressional Commission later concluded that no evidence supported the claim of military necessity for internment, and that it was instead the result of “race prejudice, war hysteria and a failure of political leadership.” See REPORT OF THE COMM’N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, PERSONAL JUSTICE DENIED 18 (1982). President Ford formally terminated the Order in 1974, calling it a “setback to fundamental American principles” and urging the Nation “to resolve that this kind of action shall never again be repeated.” Proclamation No. 4417, An American Promise, 41 Fed. Reg. 7,741 (Feb. 20, 1976). And in 1984, the district court granting Fred Korematsu a writ of coram nobis characterized his case as a “constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees.” Korematsu v. United States, 584 F. Supp. 1406, 1420 (N.D. Cal. 1984).
One more aspect of Korematsu bears elaboration. The Court has come to invoke the decision for the proposition that strict scrutiny applies to racial classifications under the equal protection doctrine. “‘All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.’” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 291 (1978) (quoting Korematsu, 323 U.S. at 216); see also Fisher v. Univ. of Tex. at Austin, --- U.S. ---, 133 S. Ct. 2411, 2422–23 (2013) (Thomas, J., concurring);
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Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214 (1995); Loving v. Virginia, 388 U.S. 1, 11 (1967). As the Court explained in City of Richmond v. J.A. Croson Co., “[t]he history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis.” 488 U.S. 469, 501 (1989) (citing Korematsu, 323 U.S. at 235–40).
CONCLUSION Plaintiffs’ claims regarding the legality and constitutionality of the March 6, 2017 Executive Order are properly before this Court. Amici respectfully support Plaintiffs’ opposition to Defendants’ motion to dismiss their claims.

Dated: May 23, 2017

Respectfully submitted,

/s/ Kimberly Thomas . Kimberly Thomas (Mich. Bar #P66643) 701 South State Street 3032 South Hall Ann Arbor, MI 48109 (734) 647-4054 kithomas@umich.edu

SIMPSON THACHER & BARTLETT LLP

/s/ Abram Ellis

.

Abram Ellis (N.Y. Bar #4402962)

900 G Street, Northwest

Washington, DC 20001

(202) 636-5579

aellis@stblaw.com

Counsel for Amici Curiae

Alan Turner (N.Y. Bar #4000147) Reena Mittelman (N.Y. Bar #5219761) Jerry Fang (N.Y. Bar #5417191) Patricia Yan (N.Y. Bar #5499173) 425 Lexington Avenue New York, NY 10017
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(212) 455-2000 aturner@stblaw.com reena.mittelman@stblaw.com jerry.fang@stblaw.com patricia.yan@stblaw.com Counsel for Amici Curiae
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CERTIFICATE OF COMPLIANCE I hereby certify that, pursuant to E.D. Mich. L.R. 5.1, the foregoing brief is double-spaced and uses a proportionally spaced, 14-point type size.

Dated: May 23, 2017

SIMPSON THACHER & BARTLETT LLP
By /s/ Abram Ellis Abram Ellis (N.Y. Bar #4402962)

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CERTIFICATE OF SERVICE I hereby certify that on May 23, 2017, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system, which will electronically serve all counsel of record.
/s/ Abram Ellis Abram Ellis (N.Y. Bar #4402962)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs,

Case No. 17-10310

v.

Hon. Victoria A. Roberts

DONALD TRUMP, President of the Untied States, et al.,

Defendants. /
BRIEF OF AMICI CURIAE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Johnathan J. Smith Aziz Huq Muslim Advocates P.O. Box 71080 Oakland, CA 94612 415-692-1484 johnathan@muslimadvocates.org aziz.huq@gmail.com

/s/ Dina Hayes (IL Bar No. 6270400) Arnold & Porter Kaye Scholer LLP 70 West Madison Street, Suite 4200 Chicago, Illinois 60602-4321 (312) 583-2553 dina.hayes@apks.com
Attorney for Amici Curiae

Of Counsel to Amici Curiae

Dated: May 23, 2017

2:17-cv-10310-VAR-SDD Doc # 99 Filed 05/23/17 Pg 2 of 31 Pg ID 1494 TABLE OF CONTENTS
Page
I. Judicial Review of the Constitutionality of the Second Executive Order is not Limited to the Face of the Order..........................................................................................5 A. Immigration Decisions Are Subject to Constitutional Review................................5 B. Neither Kleindienst v. Mandel nor Fiallo v. Bell Foreclose Careful Judicial Scrutiny of the Second Executive Order’s Constitutionality .....................7
II. Rescission Of The First Executive Order Did Not ‘Wipe The Slate Clean’ For Establishment Clause Purposes..........................................................................................13
III. Evidence of Unconstitutional Motive Exists On The Face of the Executive Orders As Well As In The Context of Their Promulgation...........................................................16
IV. The Executive Order Disproportionately Injures Muslims, Including U.S. Citizens and Longtime U.S. Residents.............................................................................................21
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TABLE OF AUTHORITIES

CASES

Page(s)

Am. Acad. of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009) ...............................................................................10

Am. Civil Liberties Union of Kentucky v. Grayson Cty., Ky., 591 F.3d 837 (6th Cir. 2010) ..............................................................................14

Am. Civil Liberties Union of Ohio Found., Inc. v. DeWeese, 633 F.3d 424 (6th Cir. 2011) ........................................................................14, 20

Bertrand v. Sava, 684 F.2d 204 (2d Cir. 1982) ...............................................................................10

Cardenas v. United States, 826 F.3d 1164 (9th Cir. 2016) ............................................................................10

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985)............................................................................................10

Department of Agriculture v. Moreno, 413 U.S. 528 (1973)............................................................................................11

Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) ..............................................................................10

Goss v. Bd. of Educ. of Knoxville, 373 U.S. 683 (1963)............................................................................................15

Guinn v. United States, 238 U.S. 347 (1915)............................................................................................15

Hays v. Louisiana, 936 F. Supp. 360 (W.D. La. 1996) .....................................................................15

Heikkila v. Barber, 345 U.S. 229 (1953)..............................................................................................6

I.N.S. v. St. Cyr, 533 U.S. 289 (2001)............................................................................................. 6

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Int’l Refugee Assistance Project v. Trump, No. 8:17-cv-00361-TDC (D. Md. Mar. 16, 2017)..............................................16
Kerry v. Din, 135 S. Ct. 2128 (2015)......................................................................................... 9
Kleindienst v. Mandel, 408 U.S. 753 (1972)........................................................................................7, 10
Lowe v. S.E.C., 472 U.S. 181 (1985)..............................................................................................8
McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005)............................................................................................14
Morfin v. Tillerson, 851 F.3d 710 (7th Cir. 2017) ..............................................................................10
Nguyen v. I.N.S., 533 U.S. 53 (2001)..............................................................................................13
Nishimura Ekiu v. United States, 142 U.S. 651 (1892)..............................................................................................5
Nixon v. Herndon, 273 U.S. 536 (1927)............................................................................................14
Radio Ass’n on Defending Airwave Rights, Inc. v. U.S. Dep’t of Transp., 47 F.3d 794 (6th Cir. 1995) ................................................................................11
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)............................................................................................14
Terry v. Adams, 345 U.S. 461 (1953)............................................................................................15
United States v. Jung Ah Lung, 124 U.S. 621 (1888)..............................................................................................5
United States v. Windsor, 133 S. Ct. 2675 (2013)..................................................................................10, 11
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Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ............................................................................10
Zadvydas v. Davis, 533 U.S. 678 (2001)..............................................................................................6
OTHER AUTHORITIES
Adrienne Mahsa Varkiani, Trump’s Muslim ban is tearing apart families ................................................................................................................21
First Amendment................................................................................................7, 8, 9
Fifteenth Amendment ........................................................................................14, 15
Black’s Law Dictionary 160–61 (5th ed. 1979).........................................................8
Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees, CBN News (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-fileexclusive-president-trump-says-persecuted-christians-will-begiven-priority-as-refugees...................................................................................17
Chad Groening, Silence over 'honor killing' stuns Islam critic ...............................19
Department of Homeland Security, Fact Sheet: Aviation Security Enhancements for Select Last Point of Departure Airports with Commercial Flights to the United States, Mar. 21, 2107, https://www.dhs.gov/news/2017/03/21/fact-sheet-aviationsecurity-enhancements-select-last-point-departure-airports...............................20
Dictionary Of Modern English Usage 61 (1965) ......................................................8
Donald G. McNeil Jr., Trump’s Travel Ban, Aimed at Terrorists, Has Blocked Doctors, N.Y. TIMES (Feb. 6, 2017) .....................................................21
Executive Order 13,769 .............................................................................................3
Executive Order 13,780, “Protecting the Nation from Foreign Terrorist Entry into the United States” .................................................................3
L.A. TIMES (Jan. 27, 2017), http://www.latimes.com/world/la-fgrefugees-order-reaction-20170127-story.html....................................................21
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Nonie Darwish: Perverted Islamic Feminism, AFDI (Dec. 2, 2015), http://afdi.us/nonie-darwish-perverted-islamic-feminism; .................................19
One News Now (July 14, 2008), https://www.onenewsnow.com/politics-govt/2008/07/14/silenceover-honor-killing-stuns-islam-critic..................................................................19
Press Release, Donald Trump, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trumpstatement-on-preventing-muslim-immigration...................................................17
THINK PROGRESS (Jan. 30, 2017), https://thinkprogress.org/trumpmuslim-ban-families-8a62d8c688e ....................................................................21
US Stuck After Trump Executive Order, ABC NEWS (Jan. 31, 2017), http://abcnews.go.com/Health/children-refugees-planned-medicalcare-us-stuck-trump/story?id=45154920 ............................................................21
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INTEREST OF AMICI CURIAE This amici curiae brief is submitted on behalf of the amici described below. Amici are business, education, finance, healthcare, legal, science, technology, and other professional members of the American Muslim community directly harmed and stigmatized by the Executive Order. Muslim Advocates, a national legal advocacy and educational organization formed in 2005, works on the frontlines of civil rights to guarantee freedom and justice for Americans of all faiths. Muslim Advocates advances these objectives through litigation and other legal advocacy, policy engagement, and civic education. Muslim Advocates also serves as a legal resource for the American Muslim community, promoting the full and meaningful participation of Muslims in American public life. The issues at stake in this case directly relate to Muslim Advocates’ work fighting institutional discrimination against the American Muslim community. American Muslim Health Professionals (“AMHP”) works to improve the health of Americans. AMHP has three areas of focus: (1) health promotion and education; (2) professional development; and (3) state and national advocacy on public health issues. AMHP has been a leader in expanding healthcare coverage by hiring a team of state liaisons and working with interfaith communities through its “Connecting Americans to Coverage” campaign. AMHP has spearheaded many
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social justice initiatives including “EnabledMuslim,” an online platform that provides spiritual and social support for individuals and families impacted by disability. Its leadership also 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.
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.
Network of Arab-American Professionals (“NAAP”) is a professional organization grounded on the notion that all Arabs in America need to connect to
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advance the community. Through collective contribution to strengthen our individual and community standing, NAAP provides a channel for ArabAmericans 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.
INTRODUCTION Amici are physicians, lawyers, and professional members of the American Muslim and Arab-American communities directly harmed and stigmatized by the President’s March 6, 2017 Executive Order 13,780, “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Second Executive Order”) and its predecessor, the January 27, 2017 Executive Order 13,769 of the same title (the “First Executive Order”). Amici urge this Court to deny Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint seeking to enjoin and declare the Second Executive
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Order unlawful and invalid. That Order is unlawful on both constitutional and statutory grounds. Amici offer three points in opposition to Defendants’ Motion to Dismiss.
First, in analyzing the constitutionality of the Second Executive Order under the First Amendment, ordinary principles of constitutional review apply. Pursuant to those rules, a court may look beyond the face of the order to consider evidence of intent and effect. The Government’s assertion that it is immune from challenge based on unconstitutional motive or effect leans on a thin reed. Its demand for categorical deference in the immigration policy context cannot be squared with a long line of Supreme Court cases closely scrutinizing the constitutionality of immigration measures. Nor can it be squared with the Supreme Court’s repeated admonition that judicial review of Executive Branch action remains necessary and appropriate even when, as here, the government relies on national security concerns as a justification.
Second, the President’s Second Executive Order contains on its face a telltale expression of animus against Muslims. Specifically, the order relies on the specter of Muslims as distinctively likely to engage in “honor killings” of women as a justification. This is both irrelevant and superfluous to the government’s national security rationale and unfounded as a matter of fact with respect to
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immigrants to the United States. This facial evidence of animus is consistent with and further supports denying Defendants’ motion to dismiss.
Third, by creating and reinforcing ignorant, false, and hateful stereotypes about Muslims, the Second Executive Order impermissibly stigmatizes and harms American citizens on the basis of their religion and national origin. This harm is in addition to the many devastating effects on citizens and noncitizens that would flow directly from implementation of Section 2 of the Order.
ARGUMENT I. Judicial Review of the Constitutionality of the Second Executive Order
is not Limited to the Face of the Order A. Immigration Decisions Are Subject to Constitutional Review Contrary to the Government’s suggestions, Article III courts have long exercised judicial review over questions of constitutional and statutory law raised by federal immigration measures. See, e.g., Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892) (“An alien immigrant, prevented from landing by any such officer claiming authority to do so under an act of congress, and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful.”); United States v. Jung Ah Lung, 124 U.S. 621, 635 (1888) (directing admission of an alien on the ground that a statute requiring Chinese nationals to produce a certification for admission could also be satisfied by alternate evidence when that certification was “lost or stolen”) (internal citations
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omitted); see also Heikkila v. Barber, 345 U.S. 229, 236 (1953) (noting the “requirements under the Constitution” of due process in immigration removal). As a result, it is beyond dispute that today “immigration law . . . is subject to important constitutional limitations” even when it comes to the treatment of inadmissible aliens. Zadvydas v. Davis, 533 U.S. 678, 695 (2001).
Federal courts have exercised close scrutiny in cases involving challenges to the constitutionality of the means by which government immigration policy is implemented. In I.N.S. v. Chadha, for example, the Supreme Court held that the political branches must use “a constitutionally permissible means of implementing” the relevant policy. 462 U.S. 919, 941–42 (1983) (invalidating enforcement action against alien plaintiff on the basis of a structural constitutional limit on governmental power akin to the Establishment Clause); see also I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001) (construing the immigration statute to avoid conflict with the Suspension Clause).
The Supreme Court has also adjudicated challenges to immigration measures taking into consideration extrinsic evidence of the government’s motivations. In I.N.S. v. Pangilinan, for example, the Court considered the allegation that unconstitutional racial animus had motivated U.S. government officials’ decisions to temporarily suspend naturalizations in the Philippines after World War II. 486 U.S. 875, 886 (1988). In concluding that the respondents’ claims were without
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merit, the Court did not question its authority to examine evidence of the motivations underlying the challenged immigration actions. Rather, the Court looked to “the historical record” to determine whether “the actions at issue . . . were motivated by any racial animus.” Id. (concluding ultimately that the decisions in question were taken for legitimate reasons, “not because of hostility towards Filipinos”). So too here the Court may look beyond the face of the Second Executive Order to evidence of the President’s intent in excluding certain Muslim immigrants.
B. Neither Kleindienst v. Mandel nor Fiallo v. Bell Foreclose Careful Judicial Scrutiny of the Second Executive Order’s Constitutionality
The Government asserts that Plaintiffs’ First Amendment claims are precluded by Kleindienst v. Mandel, 408 U.S. 753 (1972), and relies on Mandel for the proposition that, in the immigration context, the government need only provide a “facially legitimate and bona fide” reason for its decision such that a court may not inquire into evidence of an unconstitutional motive. Def.’s Mot. to Dismiss 17-19. Mandel does not, in fact, aid the Government. Rather, the Government’s position contradicts the language on which it relies, ignores the facts of Mandel, and overlooks subsequent precedent.
First, the language from Mandel itself calls for consideration of evidence of motive. “Bona fide” means: “In or with good faith; honestly, openly, and
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sincerely; without deceit or fraud. . . . Real, actual, genuine, and not feigned.” Black’s Law Dictionary 160–61 (5th ed. 1979) (emphasis added); see also H.W. Fowler, A Dictionary Of Modern English Usage 61 (1965) (“bona fide” is a Latin ablative meaning “in good faith”); see also Lowe v. S.E.C., 472 U.S. 181, 208 (1985) (explaining that in a statutory context, the term “bona fide” “translates best to ‘genuine’”). Of course, a court must necessarily consider evidence of the context and all of the circumstances to determine whether a reason is bona fide versus a pretext.
The context of Mandel underscores this point. The case concerned the “narrow issue whether the First Amendment confers upon . . . , professors [who] wish to hear, speak, and debate with Mandel [a non-resident alien] the ability . . . to compel the Attorney General to allow [that alien’s] admission.” 408 U.S. at 762. The Mandel Court declined to hold broadly that Congress had delegated to the Executive “sole and unfettered discretion” to deny admission to non-resident aliens without giving a legitimate reason. Id. at 769. Rather, the Court held that Mandel’s admission had been declined because he had “engaged in activities beyond the stated purposes” of his admission on earlier occasions. Id. at 758 & n.5. Engaging in such activities beyond the purpose of his admission, the Court held, was a “facially legitimate and bona fide” reason for refusing to grant a waiver of inadmissibility grounds. Id. at 769. The Court therefore declined to undertake a
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fresh “balancing” of First Amendment interests against state interests or otherwise “look behind” the inadmissibility decision. Id. at 770.
Accordingly, the Mandel Court found that there was no question that the government in fact had “facially legitimate and bona fide” reasons for finding inadmissibility, and cited an affidavit by the alien’s own counsel conceding the existence of the past “noncompliance” with visa conditions. Id. at 758 n.5. In no way did the Court indicate that the government need only state some pretextual yet facially legitimate and bona fide reason for its action to shield itself from any judicial review of unconstitutional motives. Contrary to the Government’s position, the Mandel Court explicitly declined to endorse the Government’s argument that it had “sole and unfettered discretion” over admission of aliens. Id. at 769.
Subsequent precedent also confirms Mandel’s circumscribed reach and its consistency with judicial consideration of governmental motivation. In particular, Justice Kennedy’s controlling opinion in Kerry v. Din, 135 S. Ct. 2128 (2015), cited Mandel as controlling authority, and directed courts to “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 2141. As the Sixth Circuit has pointed out: “[T]he Supreme Court has repeatedly allowed for meaningful judicial review of non-substantive
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immigration laws where constitutional rights are involved. Kleindienst did not change these long-standing traditions.” See Detroit Free Press v. Ashcroft, 303 F.3d 681, 687 (6th Cir. 2002).
Other courts of appeals applying Din have also required that the government point to specific record evidence that a legal justification permitted the challenged action. Circuit courts have, moreover, allowed petitioners to rebut such justification with evidence of bad faith. See, e.g., Morfin v. Tillerson, 851 F.3d 710, 713 (7th Cir. 2017); Cardenas v. United States, 826 F.3d 1164, 1172 (9th Cir. 2016). Courts also have insisted that discrimination “against a particular race or group” “would not be ‘legitimate and bona fide’ within the meaning of Kleindienst v. Mandel.” Bertrand v. Sava, 684 F.2d 204, 212 (2d Cir. 1982); accord Am. Acad. of Religion v. Napolitano, 573 F.3d 115, 136–37 (2d Cir. 2009) (discussing Mandel, and explaining that “a well supported allegation of bad faith . . . would render the decision not bona fide”); see also Washington v. Trump, 847 F.3d 1151, 1162 (9th Cir. 2017) (finding that Mandel did not control its analysis of the First Executive Order).
In immigration law, as in all other domains of federal regulation, government action based on “negative attitudes, or fear” toward a protected class cannot survive even a minimal form of constitutional scrutiny. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985); accord United States v.
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Windsor, 133 S. Ct. 2675, 2693 (2013) (“̒[A] bare . . . desire to harm a politically unpopular group cannot justify disparate treatment of that group”) (quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534–35 (1973)); accord Radio Ass’n on Defending Airwave Rights, Inc. v. U.S. Dep’t of Transp., 47 F.3d 794, 808 (6th Cir. 1995).
Furthermore, the Government’s invocations of Fiallo v. Bell are misplaced. Fiallo concerned a differential in the “preferential treatment” accorded by statute to children of U.S. citizen and resident mothers versus U.S. citizen and resident fathers. 430 U.S. 787 (1977). Upholding those preferences, Fiallo recognized a “special judicial deference to congressional policy choices in the immigration context.” Id. at 793. But the Court was at pains to affirm “judicial responsibility under the Constitution even with respect to the power of Congress to regulate the admission and exclusion of aliens . . . .” Id. at 793 n.5. That responsibility is only heightened where, as here, there is “an affirmative showing of bad faith.” Din, 135 S. Ct. at 2141 (Kennedy, J., concurring).
Like Mandel, Fiallo concerned judicial review of a policy decision that necessitated a balancing between constitutional interests and competing legitimate governmental concerns. In leaving such discretionary judgments to Congress, Fiallo said nothing about government action based on improper bias. It is one thing to say that courts should not second-guess complex discretionary decisions
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based on plural competing (but legitimate) policy concerns. It is quite another to say government can act on the basis of constitutionally proscribed animus.
The Government’s invocation of Fiallo, moreover, ignores subsequent precedent in which the Supreme Court has engaged in exacting scrutiny of similar statutory classifications based on gender. These subsequent cases contradict the Government’s contention that Fiallo once stood for, or now should be considered to stand for, judicial acquiescence in discriminatory state action.
In Miller v. Albright, the Court rejected an Equal Protection challenge to another gender classification in the derivative citizenship statute. 523 U.S. 420 (1998). Miller cannot be reconciled with the Government’s gloss on Fiallo for two reasons. First, the opinion of the Court in Miller upheld the classification only after carefully analyzing the law and determining that Congress had “a solid basis” for classifying by gender. 523 U.S. at 443. Second, a majority of the Justices in Miller declined to be guided by Fiallo. See, e.g., id. at 429. Only two Justices, in a separate concurring opinion, invoked Fiallo for the broad proposition that “[j]udicial power over immigration and naturalization is extremely limited.” Id. at 455 (Scalia, J., concurring). The Government reads Fiallo for a proposition that only two of nine members of the Court accepted in Miller. In so doing, it once more seeks a departure from established law rather than an application thereof.
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The Court returned to the question whether the Equal Protection Clause clashed with the statutory framework for derivative citizenship in Nguyen v. I.N.S., 533 U.S. 53 (2001). Contrary to the Government’s submission, the Nguyen Court did not limit its analysis to the face of the statute. To the contrary, the Court adjudicated a noncitizen’s gender-based Equal Protection challenges and carefully scrutinized the “important governmental interest[s]” at stake before concluding that it could uphold the challenged gender classification. Id. at 64.
Thus even when acting with clear statutory authority, and even when purporting to act in the interest of promoting public order, the political branches’ power over immigration matters is not immune from judicial review. Compliance with the Constitution is not a matter of merely checking a box by supplying some reason for a decision, no matter how unfounded or post hoc. And neither Mandel nor Fiallo is authority for the Government’s position that an immigration policy decision motivated by animus can be insulated from judicial review by the facile expedient of tagging on some notionally valid policy ground. II. Rescission Of The First Executive Order Did Not ‘Wipe The Slate
Clean’For Establishment Clause Purposes The mere fact that a Second Executive Order has replaced the first does not foreclose Plaintiffs’ arguments that the government’s animus impermissibly motivated the Second Executive Order just like the first. The Supreme Court has made clear that the government cannot immunize an impermissibly-motivated
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policy from judicial scrutiny merely by replacing it with a close substitute that purports to have a legitimate purpose. In McCreary, the Court invalidated exactly such a substitute policy on Establishment Clause grounds. See McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 871 (2005). Similarly, in the school prayer context, the Court has held that where the state replaces an impermissible policy with a new policy that has the predictably same effect, the state has failed to “disentangle itself from the religious messages” of the original policy. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 305–06 (2000).
The Sixth Circuit has similarly recognized that a constitutionally suspect act cannot be immunized by the expediency of withdrawal and reenactment. Am. Civil Liberties Union of Ohio Found., Inc. v. DeWeese, 633 F.3d 424, 433 (6th Cir. 2011) (“Defendant’s history of Establishment Clause violation casts aspersions on his purportedly secular purpose in hanging the poster in his courtroom.”); Am. Civil Liberties Union of Kentucky v. Grayson Cty., Ky., 591 F.3d 837, 847 (6th Cir. 2010) (noting the importance of the “history” of a challenged government action in the Establishment Clause context).
These are not the only contexts in which the tactic of reenactment has failed to successfully cleanse an unconstitutional motive. In the so-called “white primary cases,” Texas first employed an all-white primary that was invalidated under the Fifteenth Amendment. Nixon v. Herndon, 273 U.S. 536 (1927). After this system
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was struck down, id. at 541, the state replaced it with a private selection process that, although it employed a different method, “[brought] into being . . . precisely the kind of election that the Fifteenth Amendment seeks to prevent.” Terry v. Adams, 345 U.S. 461, 469 (1953). The Court invalidated the replacement method of election as a flagrant attempt “to defeat the purposes of the Fifteenth Amendment.” Id.
In other Equal Protection contexts, the Court similarly has refused to allow a challenged policy to escape close scrutiny merely because an earlier, unconstitutional iteration had been revoked, withdrawn, or replaced. See, e.g., Guinn v. United States, 238 U.S. 347, 364–65 (1915) (invalidating Alabama’s “grandfather” voting clause on the ground that it “inherently brings . . . into existence” the same race-based prohibition that previously existed in Alabama law); see also Goss v. Bd. of Educ. of Knoxville, 373 U.S. 683, 686–87 (1963) (rejecting a transfer system included in school desegregation plans because it “lends itself to perpetuation of segregation”); Hays v. Louisiana, 936 F. Supp. 360, 369 (W.D. La. 1996) (invalidating state’s second redistricting plan on a finding that both it and the earlier, invalid plan, were motivated by the same race-based concern).
These cases reflect the common-sense notion that impermissible motive does not evaporate once a policy is challenged, withdrawn, and replaced with a new
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iteration. Constitutional prohibitions against state action with an impermissible motive would be of little effect if a state actor could simply withdraw and re-enact a measure once accused of bias, and thereby obtain a shield from judicial challenge. III. Evidence of Unconstitutional Motive Exists On The Face of the
Executive Orders As Well As In The Context of Their Promulgation The animus-laden comments by the President and those tasked with drawing up and implementing the First and Second Executive Orders are by this point wellknown. See, e.g., Mem. Op., at 27–31, Int’l Refugee Assistance Project v. Trump, No. 8:17-cv-00361-TDC (D. Md. Mar. 16, 2017) (summarizing statements made by Defendants that the District Court accepted as “explicit, direct statements of President Trump’s animus towards Muslims”). It is less well appreciated that both orders contain evidence of an unconstitutional purpose on their face in the form of explicit invocation of stereotypes linking Muslims as a group to gender-based violence. The text of the First Executive Order was riddled with evidence of antiMuslim bias. For example, in multiple provisions relating to refugee admissions, the First Executive Order created an express preference for adherents of “minority” religions. First Executive Order § 5(b). This was intended to benefit Christian minorities in Muslim-majority countries (from which the United States accepts large numbers of refugees), as the President admitted in contemporaneous
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comments.1 Moreover, the First Executive Order described its purpose in terms
that were strikingly similar to language used in then-candidate Donald Trump’s
infamous December 7, 2015 press release calling for a “total and complete
shutdown on Muslims entering the United States.”2 Specifically, the final
paragraph of Section 1 of the First Executive Order stated:
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.
Each sentence of this paragraph closely tracked rhetoric in the December 7,
2015 press release. The reference to those bearing “hostile attitudes” toward the
United States, for example, tracked a statement in the press release that “there is
great hatred towards Americans by large segments of the Muslim population.” Id.
(emphasis added). Similarly, the references to those “who would place violent
1 David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees, CBN News (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusive-president-trumpsays-persecuted-christians-will-be-given-priority-as-refugees. 2 Press Release, Donald Trump, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-onpreventing-muslim-immigration.
17

2:17-cv-10310-VAR-SDD Doc # 99 Filed 05/23/17 Pg 24 of 31 Pg ID 1516
ideologies over American law” and to those who engage in “violence against women, or the persecution of those who practice religions different from their own,” tracked the statements in the press release accusing a majority of Muslims of believing that Muslims in America should have the choice to be governed by Sharia law (over American law), which the press release characterized as an ideology promoting violence against women and persecution of non-Muslims. Id.
In an effort to scrub the Muslim ban policy of its most blatant outward indicia of anti-Muslim bias, some of the language discussed above was excised in the Second Executive Order. Tellingly, however, notwithstanding the considerable public and judicial criticism of the First Executive Order’s manifest anti-Muslim bias, the Second Executive Order retains clear anti-Muslim prejudice on its face, requiring the Secretary of Homeland Security to collect and publish data on foreigners’ gender-based violence and “honor crimes” committed in the United States. Second Executive Order § 11. This reference to gender-based violence echoes the language in the First Executive Order stating that “the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women).” “Honor crimes” have nothing to do with the national security justification for the Order, but rather are code for bias against Muslims as uncivilized.
18

2:17-cv-10310-VAR-SDD Doc # 99 Filed 05/23/17 Pg 25 of 31 Pg ID 1517
As Professor Lila Abu-Lughod of Columbia University explains in a declaration attached to this brief, “the term ‘honor killing,’ or ‘honor crime,’ has become a means of signaling a class of violence purportedly linked to Islam and committed by Muslim men,” and therefore “a way of stigmatizing and demeaning Islam as a faith and Muslim men as a group as uncivilized and dangerous.”3 As Professor Abu-Lughod explains, “Neither Islamic law nor its religious authorities, however, uniformly or consistently condone honor crimes.” Id. ¶ 14. Furthermore, “the term ‘honor crime’ is commonly invoked by individuals and groups with an anti-Muslim agenda because it reinforces the [false] stigmatization of Muslims as violent and backward.” Id. ¶ 15.4 Its presence in both Executive Orders— instruments that are purportedly about national security rather than domestic violence—is evidence of the invidious stereotypes about Muslims that underpin the Muslim ban policy.
The Second Executive Order seeks to erase its roots as a Muslim ban by declaring by fiat that the First Executive Order “did not provide a basis for discriminating for or against members of any particular religion.” Second
3 Decl. of Prof. Lila Abu-Lughod, Dkt Entry #96. 4 For examples of the invocation of the idea of honor killing in broad and stereotyping antiMuslim arguments. see Pamela Geller, Nonie Darwish: Perverted Islamic Feminism, AFDI (Dec. 2, 2015), http://afdi.us/nonie-darwish-perverted-islamic-feminism; Chad Groening, Silence over 'honor killing' stuns Islam critic, One News Now (July 14, 2008), https://www.onenewsnow.com/politics-govt/2008/07/14/silence-over-honor-killing-stuns-islamcritic.
19

2:17-cv-10310-VAR-SDD Doc # 99 Filed 05/23/17 Pg 26 of 31 Pg ID 1518
Executive Order § 1(b)(4). But “the world is not made brand new every morning,” and this Court should reject any invitation to “turn a blind eye to the context in which [the] policy arose.” McCreary Cty., 545 U.S. at 866 (citations omitted) (alteration in original).; see also Am. Civil Liberties Union of Ohio Found., Inc. v. DeWeese, 633 F.3d 424, 431–32 (6th Cir. 2011) (Clay, J.) (“[R]eviewing courts must look with the eye of an observer familiar with the history of the government's actions and competent to learn [what] history has to show.”). As evidenced by the plain text of the Executive Orders, the anti-Muslim animus that pervaded thencandidate Trump’s thinking and rhetoric during the presidential campaign continues to drive the policy reflected in the Second Executive Order.
Finally, the fact that this Executive Order is infected with impermissible animus does not preclude further executive action in this field. Indeed, the Government has taken actions to prevent terrorism through international aviation since the first injunctions were issued against the Executive Orders at issue here.5 Each executive action is judged on its own merits. As explained above, there is evidence of a common impermissible motive behind both the First and the Second Executive Orders. Future policy decisions must be judged on their own merits— and there is simply no reason to assume that the Government will not be able to
5 See, e.g., Department of Homeland Security, Fact Sheet: Aviation Security Enhancements for Select Last Point of Departure Airports with Commercial Flights to the United States, Mar. 21, 2107, https://www.dhs.gov/news/2017/03/21/fact-sheet-aviation-security-enhancements-selectlast-point-departure-airports.
20

2:17-cv-10310-VAR-SDD Doc # 99 Filed 05/23/17 Pg 27 of 31 Pg ID 1519
apply its policy expertise appropriately in the future to fashion new policies
responsive to real security threats.
IV. The Executive Order Disproportionately Injures Muslims, Including U.S. Citizens and Longtime U.S. Residents If allowed to be enforced, the Executive Order will again immediately cause
more suffering to U.S. citizens and Legal Permanent Residents with family
members excluded or exiled by the ban; to American civil society and religious
groups wishing to invite scholars and religious leaders; and universities and
businesses seeking to recruit the best available talent. As American Muslims,
Amici are acutely threatened by these injuries.6
Amici also suffer an additional injury as a result of the stigma that has
attached to all American Muslims (and those perceived as Muslim as a
consequence of their ethnicity), unfairly and irrationally, as a result of the First and
Second Executive Orders and the public pronouncements of the President and his
advisors in connection therewith. Contrary to the misperception spread by the
6 See e.g., Shashank Bengali, Nabih Bulos, and Ramin Mostaghim, Families hoping to make the U.S. their home scramble to rearrange their lives, L.A. TIMES (Jan. 27, 2017), http://www.latimes.com/world/la-fg-refugees-order-reaction-20170127-story.html (detailing the struggles of families with children affected by the Executive Order); Adrienne Mahsa Varkiani, Trump’s Muslim ban is tearing apart families, THINK PROGRESS (Jan. 30, 2017), https://thinkprogress.org/trump-muslim-ban-families-8a62d8c688e (documenting the experience of individuals affected by the Executive Order); Gillian Mohney, Children and Refugees Who Planned Medical Care in the US Stuck After Trump Executive Order, ABC NEWS (Jan. 31, 2017), http://abcnews.go.com/Health/children-refugees-planned-medical-care-us-stucktrump/story?id=45154920 (discussing the complications suffered by children who had planned to seek medical care in the United States); Donald G. McNeil Jr., Trump’s Travel Ban, Aimed at Terrorists, Has Blocked Doctors, N.Y. TIMES (Feb. 6, 2017), https://nyti.ms/2lg7tu1 (detailing difficulties caused by the Executive Order to medical professional working abroad).
21

2:17-cv-10310-VAR-SDD Doc # 99 Filed 05/23/17 Pg 28 of 31 Pg ID 1520
“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. Today, Muslims represent 1% of the U.S. population. Muslims have expended their blood, sweat, and tears building and defending the United States. In fact, today, more than 5,000 Muslims serve in the U.S. military, and many have given their lives in recent wars in defense of U.S. 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.7
7 See generally Kambiz Ghanea Bassiri, A History of Islam in America: From the New World to the New World Order (Cambridge 2010).
22

2:17-cv-10310-VAR-SDD Doc # 99 Filed 05/23/17 Pg 29 of 31 Pg ID 1521

CONCLUSION AND RELIEF REQUESTED For the foregoing reasons, Amici respectfully request that the Court deny Defendants’ Motion to Dismiss.

Respectfully submitted,
/s/ Dina Hayes (IL Bar No. 6270400) Arnold & Porter Kaye Scholer LLP 70 West Madison Street, Suite 4200 Chicago, Illinois 60602-4321 (312) 583-2553 dina.hayes@apks.com

Attorney for Amici Curiae

Johnathan J. Smith Aziz Huq Muslim Advocates P.O. Box 71080 Oakland, CA 94612 415-692-1484 johnathan@muslimadvocates.org aziz.huq@gmail.com
Jonathan S. Martel Bethan R. Jones Arnold & Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC 20001-3743 202-942-5000 jonathan.martel@apks.com bethan.jones@apks.com

Anton Ware Arnold & Porter Kaye Scholer LLP Three Embarcadero Center10th Floor San Francisco, CA 94111-4024 415-471-3100 anton.ware@apks.com
Andrew D. Bergman Arnold & Porter Kaye Scholer LLP 700 Louisiana Street Suite 1600 Houston, TX 77002 713- 576-2430 andrew.bergman@apks.com

Of Counsel to Amici Curiae

Dated: May 23, 2017

23

2:17-cv-10310-VAR-SDD Doc # 99 Filed 05/23/17 Pg 30 of 31 Pg ID 1522
CERTIFICATE OF COMPLIANCE I hereby certify that, pursuant to Fed. R. Civ. P. 32(a)(5) and E.D. Mich. L.R. 5.1 the attached brief is double spaced, uses a proportionately spaced typeface of 14 points or more, and contains a total of 5,021 words based on the word count program in Microsoft Word. Dated: May 23, 2017
/s/ Dina Hayes (IL Bar No. 6270400) Arnold & Porter Kaye Scholer LLP 70 West Madison Street, Suite 4200 Chicago, Illinois 60602-4321 (312) 583-2553 dina.hayes@apks.com Attorney for Amici Curiae
24

2:17-cv-10310-VAR-SDD Doc # 99 Filed 05/23/17 Pg 31 of 31 Pg ID 1523
CERTIFICATE OF SERVICE (e-file) I hereby certify that on May 23, 2017, I electronically filed the above documents with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
/s/ Dina Hayes (IL Bar No. 6270400) Arnold & Porter Kaye Scholer LLP 70 West Madison Street, Suite 4200 Chicago, Illinois 60602-4321 (312) 583-2553 dina.hayes@apks.com Attorney for Amici Curiae
25

2:17-cv-10310-VAR-SDD Doc # 100 Filed 05/23/17 Pg 1 of 9 Pg ID 1524

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs,

Case No. 17-10310

v.

Hon. Victoria A. Roberts

DONALD TRUMP, President of the Untied States, et al.,

Defendants. /

I, Lila Abu-Lughod, hereby declare as follows:

1. I am over the age of eighteen and competent to testify.

2. I am the Joseph L. Buttenwieser Professor of Social Science in the

Department of Anthropology and the Institute for Research on Women, Gender

and Sexuality at Columbia University. I have been a professor of anthropology

since 1983 and taught at a number of higher education research institutions,

including Williams College, Princeton University and New York University.

3. I received my undergraduate degree in Sociology and Anthropology in 1974

from Carleton College. I earned my Ph.D. in Social Anthropology from Harvard

University in 1984.

4. My curriculum vitae is attached as Exhibit 1.

2:17-cv-10310-VAR-SDD Doc # 100 Filed 05/23/17 Pg 2 of 9 Pg ID 1525
5. My research focuses, as relevant here, on three broad issues: (1) the relationship between cultural forms and power; (2) the politics of knowledge and representation; and (3) the dynamics of gender and the question of women’s rights in the Middle East. I have conducted extensive ethnographic research in Egypt and elsewhere, focusing on the lived experience of women in a range of social, economic, and political circumstances. 6. I have published extensively on how Muslim women are portrayed in western society. I rely on my research and excerpts from my prior publications, including chapter 4 of Do Muslim Women Need Saving? (Harvard University Press 2013), titled Seductions of the “Honor Crime” (Exhibit 2), and The cross-publics of ethnography: The case of ‘the Muslimwoman’ (Exhibit 3), in making this declaration. This book chapter and article discuss from a scholarly perspective the origins and uses of the term “honor crime.” 7. I have also considered the other documents that are referenced or cited in this report.
Introduction 8. The text of the first provision of President Trump’s January 27, 2017 executive order, entitled “Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States,” cites the practice of “honor killings” (or “honor crimes”) as justification for the exclusion of persons originating from
2

2:17-cv-10310-VAR-SDD Doc # 100 Filed 05/23/17 Pg 3 of 9 Pg ID 1526
certain Muslim-majority countries from the United States. Section 1 states that: “[T]he United States should not admit those who engage in acts of bigotry and hatred (including ‘honor killings,’ other forms of violence against women, or the persecution of those who practice religions different from their own) . . . .” 9. The reference to “honor killings” is repeated in section 11(iii) of President Trump’s March 6, 2017, executive order of the same name. Section 11 requires the acquisition and dissemination of “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.” The executive order specifies that this information is to be gathered for the purported reason of “be[ing] more transparent with the American people.” 10. These references to honor killings in both executive orders seek to justify travel restrictions by linking violence against women to the specific groups targeted by the executive orders. My research has demonstrated that the term “honor killing,” or “honor crime,” has become a means of signaling a class of violence purportedly linked to Islam and committed by Muslim men. I have also demonstrated that invocation of “honor crimes” has become a way of stigmatizing and demeaning Islam as a faith and Muslim men as a group as uncivilized and dangerous. In this way, rhetoric about “honor killing” or “honor crime” is a means
3

2:17-cv-10310-VAR-SDD Doc # 100 Filed 05/23/17 Pg 4 of 9 Pg ID 1527
of implicitly but powerfully conjuring negative and misleading stereotypes about Islam and Muslims. 11. It bears noting here that the use of pejorative stereotypes about Muslims is not limited to the face of the two executive orders. On December 7, 2015, thenpresidential candidate Donald Trump called for a “total and complete shutdown of Muslims entering the United States” and asserted by way of justification that Islamic law authorizes “unthinkable acts that pose great harm to . . . women.”1
The term “honor killings” is rooted in and reflects a perjorative and misleading stereotype about Muslims 12. The terms “honor killing” and “honor crime” have been defined as “the killing of a woman by her relatives for violation of a sexual code in the name of restoring family honor.” Exhibit 2, at 113. These terms demarcate a culturally specific form of violence, distinct from other forms of domestic or intimate partner violence. Exhibit 2, at 119-20. By contrast, violence committed by men against women in the United States, while regrettably pervasive, is rarely or never characterized in terms of the culture or religion of perpetrators. Id. 13. In particular, my study of the use of the term “honor killing” suggests that the news stories, reports, and political positions that invoke that term almost always link such crimes specifically to Islam. Other scholars who have studied the
1 Press Release, Donald J. Trump, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trumpstatement-on-preventing-muslim-immigration.
4

2:17-cv-10310-VAR-SDD Doc # 100 Filed 05/23/17 Pg 5 of 9 Pg ID 1528
manner in which the term “honor killing” is invoked find the same assumed connection to Islam and Muslim identity.2 14. Neither Islamic law nor its religious authorities, however, uniformly or consistently condone honor crimes. Exhibit 2, at 114. Rather, in my experience as an anthropologist in the Middle East, I have commonly seen Islam and Islamic law explicitly invoked against gender violence. Exhibit 2, at 139. Moreover, there is nothing characteristically “Muslim” or “Islamic” about the observed incidence of violent and abusive behavior against women. Such reprehensible conduct is observed in Christian-majority countries, such as the United States, and in many, if not all, national contexts with equally dismaying frequency. 15. Rather than conveying an accurate implication, the term “honor killing” is a way of misleadingly categorizing violence against women as a quintessentially Muslim problem. It is therefore a way of portraying Muslim communities as deficient, backward and prone to violence. As such, the term “honor crime” is commonly invoked by individuals and groups with an anti-Muslim agenda because it reinforces the stigmatization of Muslims as violent and backward.. Exhibit 2, at 125; see also Exhibit 3, at 598. It is a rhetorical strategy “that works through
2 See, e.g., Leti Volpp, Blaming Culture for Bad Behavior, 12 Yale J.L. & Human. 89, 103 (2000) (noting how media reporting characterizes “honor crimes” as related to “Muslim mores”); Juliane Hammer, Center Stage: Gendered Islamophobia and Muslim Women, in Islamophobia in America 107-44 (Carl W. Ernst, ed. 2010).
5

2:17-cv-10310-VAR-SDD Doc # 100 Filed 05/23/17 Pg 6 of 9 Pg ID 1529
fantasy to attach people to a set of values they are made to associate strictly with modernity and the West.” Exhibit 2, at 121. 16. In my experience as an anthropologist, working in a range of Muslim societies, and listening closely to the stories and travails of Muslim women, the idea that Islam is distinctively to blame for violence against women is false. Exhibit 2, at 120-21. 17. As I have explained in my scholarship, the portrayal of Muslim women as oppressed, socially subordinate individuals within their society serves as a way of condemning the “dangerous Muslim man.” Exhibit 2, at 118-20. The term “honor killing” ignores the realities and complexities of the women themselves, who face many different challenges and many forms of violence (often as a result of state action or inaction, rather than because of culture or family). 18. The term “honor killing” is often a post hoc designation that reflects the biases and assumptions of the observer rather than the facts of specific incidences of tragic violence. In Chapter 4 of Do Muslim Women Need Saving?, I give the example of the February 2005 murder of a young woman, Hatun Sürücü, in Berlin. According to Dr. Katherine Ewing, an anthropologist and director of Columbia University’s Institute for Religion, Culture and Public Life who authored a study called Stolen Honor: Stigmatizing Muslim Men in Berlin (Stanford University Press 2008), based on ethnographic research on Turks in Germany, Sürücü’s tragic
6

2:17-cv-10310-VAR-SDD Doc # 100 Filed 05/23/17 Pg 7 of 9 Pg ID 1530
death led to a “media frenzy” about a “spate of honor killings” and allowed politicians to “tar the Muslim community.” Yet careful investigation of Sürücü’s life suggests other causes than a concern for “honor.” That investigation revealed the so-called “spate” of killings as a post hoc classification of murders that largely did not fit the description of “honor killings.” It also exposed public blaming of Islam that ignored the fact that the Islamic Council in Berlin roundly condemned Sürücü’s murder. In this case, Professor Ewing explains that invocation of concern about honor killings has “come to stand in for Germans’ fears of an untamed parallel society in their midst.” Exhibit 2, at 132-34. 19. The invocation of the term “honor killing,” I have therefore concluded, is a way of stigmatizing Muslim (and especially Muslim men) as a backward and violent group. 20. It is therefore unsurprising that the idea of the “honor killing” or “honor crime” has been regularly invoked in national and international political debates and activities as a calculated way of putting these negative sentiments into play. In Europe, “honor crimes” are invoked in arguments about border control and the policing of immigration and immigrants by groups with anti-Muslim agendas. Exhibit 2, at 134. A number of scholars have noted how the stigmatization of Muslim men’s “sexual deviances” serves as a proxy to xenophobia against the group. Exhibit 2, at 134.
7

2:17-cv-10310-VAR-SDD Doc # 100 Filed 05/23/17 Pg 8 of 9 Pg ID 1531

2:17-cv-10310-VAR-SDD Doc # 100 Filed 05/23/17 Pg 9 of 9 Pg ID 1532
CERTIFICATE OF SERVICE (e-file) I hereby certify that on May 19, 2017, I electronically filed the above documents with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
/s/ Dina Hayes (IL Bar No. 6270400) Arnold & Porter Kaye Scholer LLP 70 West Madison Street, Suite 4200 Chicago, Illinois 60602-4321 (312) 583-2553 dina.hayes@apks.com Attorney for Amici Curiae
5

2:17-cv-10310-VAR-SDD Doc # 100-1 Filed 05/23/17 Pg 1 of 1 Pg ID 1533

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs,

Case No. 17-10310

v.

Hon. Victoria A. Roberts

DONALD TRUMP, President of the Untied States, et al.,

Defendants. /

INDEX OF EXHIBITS TO DECLARATION OF LILA ABU-LUGHOD

Exhibit 1: Curriculum Vitae of Professor Lila Abu-Lughod.

Exhibit 2: Lila Abu-Lughod, Do Muslim Women Need Saving? Chapter 4

“Seductions of the Honor Crime,” Harvard University Press (2013).

Exhibit 3: Lila Abu-Lughod, The cross publics of ethnography: The case of “the

Muslimwoman” 43 AMERICAN ETHNOLOGIST 595-608 (Nov.

2016).

2:17-cv-10310-VAR-SDD Doc # 100-3 Filed 05/23/17 Pg 1 of 17 Pg ID 1558

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Exhibit 1

2:17-cv-10310-VAR-SDD Doc # 100-2 Filed 05/23/17 Pg 2 of 24 Pg ID 1535
Lila Abu-Lughod

LILA ABU-LUGHOD

Department of Anthropology 452 Schermerhorn Extension Columbia University 1200 Amsterdam Ave. New York, NY 10027

e-mail: la310@columbia.edu Phone: (212) 854-3693

EDUCATION

Ph.D. Harvard University, Social Anthropology, 1984 M.A. Harvard University, Social Anthropology, 1978 B.A. Carleton College, Magna cum laude, Distinction in Sociology-Anthropology, 1974

ACADEMIC POSITIONS

2009-present Joseph L. Buttenwieser Professor of Social Science, Columbia University,

Department of Anthropology and Institute for Research on Women, Gender and

Sexuality

2012--2015 Director, Middle East Institute, Columbia University

2009--2014 Director or co-director, Center for the Critical Analysis of Social Difference,

Columbia

2008--2009 William B. Ransford Professor of Anthropology and Gender Studies, Columbia

University

2004--2007 Director, Institute for Research on Women and Gender, Columbia University

2000--2007 Professor of Anthropology and Women’s Studies, Columbia University

1998-2000 Professor of Anthropology and Middle East Studies, New York University

1991-98

Associate Professor of Anthropology, New York University

1995-99

Co-director, Program to Internationalize Women's Studies, New York University

1990-91

Assistant Professor of Religion and Associated Faculty, Department of

Anthropology, Princeton University

1983-87

Assistant Professor, Department of Anthropology and Sociology,Williams College

HONORS and PRIZES

2008 2007 2007
2006 1999 1994
1988

Lenfest Distinguished Faculty Award, Columbia University American Ethnological Society Senior Book Prize (for Dramas of Nationhood) Outstanding Senior Scholar Award, Middle East Section, American Anthropological Association Honorary Doctorate of Humane Letters, Carleton College, Northfield, Minnesota Alumni Award for Distinguished Achievement, Carleton College Victor Turner Prize (for Writing Women's Worlds), Society for Humanistic Anthropology, American Anthropological Association. Silver Medal for Outstanding Contributions to the Development of Anthropological and Ethnological Science through Publication (for Veiled Sentiments), International Union of Anthropological and Ethnological Sciences.

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2:17-cv-10310-VAR-SDD Doc # 100-2 Filed 05/23/17 Pg 3 of 24 Pg ID 1536
Lila Abu-Lughod

1987 1984
1984
1974

Chicago Folklore Prize, Honorable Mention for Veiled Sentiments. Stirling Award for Contributions to Psychological Anthropology, Society for Psychological Anthropology and the American Anthropological Association. Malcolm Kerr Dissertation Prize in the Social Sciences, Middle East Studies Association of North America. Phi Beta Kappa, Carleton College.

ENDOWED LECTURES

2019 2017 2015 2014 2012 2012 2012 2009 2008 2007 2006 2003 2001 1996 1995 1995 1994

B.N. Ganguli Memorial Lecture, Centre for the Study of Developing Societies, Delhi (invited) Morgan Lecturer, Clarke Forum for Contemporary Issues, Dickinson College Edward Said Memorial Lecture, American University in Cairo Maryse and Ramzy Mikhail Memorial Lecture, University of Toledo. Hawthorn Lecturer, University of British Columbia, Canada. Ira Wender Visitor in Cultural Understanding, Carleton College. Farhat Ziadeh Distinguished Lecture in Arab and Islamic Studies, University of Washington. Radcliffe-Brown Lecture in Social Anthropology, the British Academy. Ridington Lecture, McDaniel College. Kareema Khoury Annual Distinguished Lecture, Georgetown University. Wendt Visiting Scholar, The Hackley School. Bella Abzug Lecture, Women’s Studies, Hunter College, CUNY. Lewis Henry Morgan Lectures, University of Rochester. Antonius Lecture, St Antony's College, Oxford. Sabbagh Lecture, Department of Anthropology, University of Arizona. Paul Riesman Memorial Lecture, Carleton College. Inaugural Yale-Maria Lecture in Middle East Studies, University of New Hampshire.

FELLOWSHIPS AND RESEARCH GRANTS

2007-2009 2007-2008 1997 1996-97 1995-96 1995 1993 1991-93
1990-91 1989-90 1989-90
1988-89 1987-88 1987

Carnegie Scholar, Carnegie Foundation American Council of Learned Societies Fellowship John Simon Guggenheim Memorial Fellowship National Endowment for the Humanities Fellowship for University Teachers New York University Challenge Fund Fellow, Institute for the Humanities, University of Michigan Presidential Fellowship, New York University SSRC Collaborative Grant for Research Planning in Transnational and Comparative Studies (with T. Mitchell): Questions of Modernity: Strategies for Post-Orientalist Scholarship on the Middle East and South Asia University Preceptorship, Princeton University American Research Center in Egypt NEH Fellowship ACLS/SSRC Near and Middle East Committee Grant for Advanced Research (project on Islam and Public Culture in Contemporary Egypt) Mellon Fellow in the Humanities, University of Pennsylvania Member, The Institute for Advanced Study, Princeton Fulbright Award, Islamic Civilization Program (field research in Egypt, Bedouin)

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2:17-cv-10310-VAR-SDD Doc # 100-2 Filed 05/23/17 Pg 4 of 24 Pg ID 1537
Lila Abu-Lughod

1986-87
1985
1981-82 1980-83
1977-80 1974

National Endowment for the Humanities, Fellowship for College Teachers (Ethnography in a Different Voice) Williams College Faculty Research Grant and Travel Grant from the Program on African and Middle Eastern Studies American Association of University Women, Marion Talbot Dissertation Fellowship. Foreign Language and Area Studies Fellowship and National Resource Fellowships, Harvard University. National Institute of Mental Health, Predoctoral Training Grant (3 years). HEW Fellowship for Intensive Arabic Study in Tunis (NACAS), summer.

INSTITUTIONAL GRANTS

2016-2019

Grant from the Henry Luce Foundation to the Center for the Study of Social Difference for the project co-directed by Lila Abu-Lughod, Nadera Shalhoub-Kevorkian, Rema Hammami and Janet Jakobsen on “Religion and the Global Framing of Gender Violence.”

2014-2016

Grant from Carnegie Foundation to the Middle East Institute and the Department of Middle Eastern, South Asian, and African Studies for mobility fellowships for Arab social scientists to spend 4-6 months at Columbia. $300,000. Three Carnegie Centennial Fellows selected for fall 2014 and one for fall 2016.

2013-2014

“The Power of Women’s Islamic Education” workshop organized with Amina Tawasil on November 8-9, 2013; workshop on “Debating the ‘Woman Question’ in the New Middle East” at the Columbia Global Centers |Middle East (Amman), May 3-4. Both part of the project Women Creating Change on “Gender, Religion, and Law in Muslim Societies,” Center for the Study of Social Difference. Funding through the Luce Foundation’s grant to IRCPL, the Global Centers, Center for the Study of Social Difference, and the Blinken European Institute.

2012-2013

Project on “Islamic Feminists, Islamist Women, and the Women Between.” International working group funded by the Blinken European Institute, Columbia University. Co-organized with Anupama Rao and Katherine Ewing. Reid Hall, Columbia Global Center | Europe, January 18-19, 2013.

2010-2012

Project on Islam, Gender, and Law (Center for the Study of Social Difference and Center for Democracy, Toleration, and Religion: Columbia University). Co-organized with Anupama Rao an international conference at Columbia University Middle East Research Center, Amman, Jordan on “Religious Law, Local Practices, and the Global Politics of Muslim Women’s Rights: The Politics of Consent,” April 9-10, 2011.

2008-2010

Center for the Critical Analysis of Social Difference and Institute for the Study of Religion, Culture, and Public Life, Columbia University. Collaborative Project on “Liberalism’s Others” with Anupama Rao, Katherine Franke, Elizabeth Povinelli, and Neferti Tadiar. Organized workshops on “Who’s Afraid of Shari’a?” “Is Islamic Reform Secular?” and “Competing Legalities? Violence, Gender, Shari'a, and the State,” as well as an ongoing faculty seminar and occasional public lectures.

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2:17-cv-10310-VAR-SDD Doc # 100-2 Filed 05/23/17 Pg 5 of 24 Pg ID 1538
Lila Abu-Lughod

2005-2010 Institute for Social and Economic Research and Policy, Columbia U. for faculty workshop on “Gender and the Global Locations of Liberalism.: With Anupama Rao.

1995-99

Ford Foundation grant to integrate area studies and women's studies, through the Women's Studies Program, NYU, co-directed with Marilyn Young and Mary Nolan.

PROFESSIONAL ACTIVITIES

Offices:

Chair, SSRC/ACLS Joint Committee on the Comparative Study of Muslim Societies (1991-1993); co-organizer, international dissertation workshops 1990, 1991; member (1988-1993).
Board, Society for Cultural Anthropology, 1992-1996; Program Chair, 1994 AAA Meetings.
Board of Directors, Society for Psychological Anthropology, 1987-89; Program Chair 1989 AAA Meetings.
Nominating Committee, Middle East Studies Association, 1994. Faculty Fellow, Institute for Social and Economic Research and Policy, Columbia 2006-

Editorial:

Associate Editor, American Ethnologist (1991-1994) Consulting Editor, Feminist Studies (1992-1996; 2001-2003; 2006-) Editorial Collective, Public Culture: Society for Transnational Cultural Studies. Associate Editor, Cultural Studies (1995-1997) Editorial Board, Ethos (1996-2001) Associate Editor, Journal of Contemporary Ethnography (1995-) Contributing Editor, Middle East Report (1996-2003) Contributing Editor Cross-Cultural Poetics (1996-) Editorial Board, Ethnography (2000-) Editorial Board, Centennial (2000-) Editorial Board, Life Writing (2003-) Editorial Board, Palestinian Review of Society and History (2004-) Editorial Board, Journal of Middle East Women’s Studies (2004-) Editorial Board, Journal of American Folklore (2005-) Editorial Review Board, Arab Studies Journal (2008-) Editorial Board, American Ethnologist (2012-) Editorial Board, Comparative Studies of South Asia, Africa, and Middle East (2012-) Editorial Board, Routledge Handbook of Language and Emotion (2017-) Editorial Board, Dutch Journal of Feminist Studies (2016-)

Advisory:

Advisory Board, Communal/Plural: Journal for Transnational and Cross Cultural Studies (1997-2001).
Advisory Board, Diaspora: A Journal of Transnational Studies Advisory Board, Critique: Journal for Critical Studies of the Middle East. Advisory Council, Advanced Study Center, International Institute, University of
Michigan (1997) Associate, Research Center for Religion and Society, University of Amsterdam (1996) Advisory Editor, Handbook of Interviewing, ed. J. Gubrium and J. Holstein Advisory Editor, Encyclopedia of Women and Islamic Cultures
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2:17-cv-10310-VAR-SDD Doc # 100-2 Filed 05/23/17 Pg 6 of 24 Pg ID 1539
Lila Abu-Lughod
Advisory Editor, Ethnos (2006-) Advisory Board, The Middle East Journal of Culture and Communication (2007-2016) Advisory Board, Encounters: An International Journal for the Study of Culture and Society (2008-) Advisory Board, Al-Raida (2011-) International Advisory Board, Signs: Journal of Women in Culture and Society (2012-)
Consulting: Qatar National Museum (2015-16); American Forum for Global Education: Middle East Curriculum Development (1994-96); Textbook Revision Project, Gender and the Anthropology Curriculum, American Anthropological Association (1988).
Reviewing:
Manuscript Reviews: Alif: Journal of Comparative Poetics; American Anthropologist; American Ethnologist; American University of Cairo Press; Arab Studies Journal; Arab Studies Quarterly; Brill; British Journal of Middle East Studies; Columbia University Press; Cultural Anthropology; Culture; Culture, Medicine and Psychiatry; Cultural Studies; Current Anthropology; Diaspora; Duke University Press; Ethnic and Racial Studies; Ethnography; Ethnos; Ethos; Feminist Studies; Harvard University Press; Identities; International Journal of Middle East Studies; Journal of Contemporary Ethnography; Journal of Social Issues; Law and Social Inquiry; Meridians; National Women's Studies Journal; Northeast Modern Language Association; Northwestern University Press; Palestinian Review of Society and History; Political and Legal Anthropology Review; Routledge; Signs: Journal of Women in Culture and Society; Soros Fellowships in Reproductive Health; Stanford University Press; Syracuse University Press; University of California Press; University of Minnesota Press; University of Wisconsin Press; Violence against Women; Visual Anthropology; Visual Anthropology Review.
Fellowship Reviews: American Research Center in Egypt, NIMH, NEH, NEH Media, NEH Collaborative Research Grants, NSF, Smithsonian Institution, SSRC, Wenner Gren Foundation, National Humanities Center, Palestinian American Research Center, Radcliffe Institute for Advanced Study; Netherlands Organisation for Scientific Research, Social Sciences, Center for Advanced Study in the Behavioral Sciences; FEMMAGH Conference, Moving Gender: Conflicts, Negotiations and Redefinitions; Council for the Humanities of the Netherlands Organisation for Scientific Research.
Memberships: American Anthropological Association; American Ethnological Society; Association for Feminist Anthropology; Society for Cultural Anthropology; Middle East Studies Association; Association of Middle East Women’s Studies.
ETHNOGRAPHIC RESEARCH
Awlad `Ali Bedouin in Egypt's Western Desert, October 1978-May 1980, August 1985, December 1986-January 1987, May-September 1987, January 1989, December 2008. Islam, Television and Public Culture, Cairo and Upper Egypt, October 1989-July 1990; January-July 1993; January 1996; October 1996-June 1997; January 1999. Medicine and Consumption in rural Egypt, January-May 2001; Feb.-April 2004; Dec.-Jan. 2006. Discourse of Women's Rights, rural and urban Egypt, January 2007; March-April 2008, March 2009; Jordan April 2009; rural Egypt December 2009, December 2010. Impact of Egyptian Revolution, Upper Egypt and Western Desert, January 2012, 2013, 2014, Oct. 2015, January 2016
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Lila Abu-Lughod
PUBLICATIONS
Books
Do Muslim Women Need Saving? Harvard University Press, 2013. Japanese translation forthcoming, Shoshi Shinsui.
Dramas of Nationhood: The Politics of Television in Egypt. Lewis Henry Morgan Lectures. Chicago: University of Chicago Press, 2005. (American Ethnological Society Senior Book Prize, 2007) Other English Editions: American University in Cairo Press, 2005. Arabic Translation forthcoming, National Center for Translation, Egypt. Simplified Chinese Translation, The Commercial Press, forthcoming.
Writing Women's Worlds: Bedouin Stories. University of California Press, 1993 (Victor Turner Prize, 1994). Fifteenth Anniversary Edition with new preface, 2008.
Turkish Translation: Kadinlarin Dunyasi/Bedevi Oykuleri. Istanbul: Epsilon Yayinevi, 2004.
Veiled Sentiments: Honor and Poetry in a Bedouin Society. University of California Press, 1986 (IUAES Silver Medal; Chicago Folklore Prize, honorable mention). Second edition, updated with a new preface, 2000. 30th Anniversary Edition, with a new Afterword, September 2016.
Other English Editions: American University in Cairo Press, 1987. Arabic Translation: Masha'ir Muhajaba. Nour Arab Publishing, Cairo, Egypt, 1995. Turkish Translation: Peceli Duygular. Istanbul: Epsilon Yayinevi, 2004 Italian Translation: Sentimenti Velati. Le Nuove Muse, Turin, 2007 French Translation: Sentiments Voilé. Les Empecheurs de Penser en Rond: Editions du Seuil, Paris, 2008
Edited Books
Nakba: Palestine, 1948 and the Claims of Memory. Co-edited with Ahmad H. Sa`di. Columbia University Press. The Cultures of History Series, 2007. Arabic Translation forthcoming, Institute for Palestine Studies, Beirut Tamil translation forthcoming, Ethir Veliyedu Press, India. Spanish Translation forthcoming, Editorial Canaán, Argentina
Media Worlds: Anthropology on New Terrain. Co-edited with Faye Ginsburg and Brian Larkin. University of California Press, 2002. Chinese translation 2009. Taiwan.
Remaking Women: Feminism and Modernity in the Middle East. Edited. Princeton University Press, Series in Culture/Power/History, 1998.
Other English Editions: American University in Cairo Press, 1998.
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2:17-cv-10310-VAR-SDD Doc # 100-2 Filed 05/23/17 Pg 8 of 24 Pg ID 1541
Lila Abu-Lughod
Arabic Translation: Al-haraka al-nisa’iyya wa al-tatawwur fi al-sharq al-awsat. Cairo, Egypt: Supreme Council for Culture’s National Translation Project, 1999. Spanish Translation: Feminismo y Modernidad en Oriente Proximo. Feminismos. Madrid: Ediciones Catedra, Universitat de Valencia, Instituto de la Mujer, 2002. Japanese Translation, 2010.
Language and the Politics of Emotion, co-edited with C. Lutz. New York: Cambridge University Press, 1990.
Other Edited Works
2015 The Politics of Feminist Politics. Special forum: Comparative Studies of South Asia, Africa, and the Middle East, 35:1, December.
2011 Women’s Rights, Muslim Family Law, and the Politics of Consent. Co-edited with Anupama Rao. SOCIALDIFFERENCE-ONLINE, Vol. 1, December. http://www.socialdifference.org/files/SocDifOnline-Vol12012.pdf
2004 Guest Editor, Visual Anthropology Review Feature on “'Dreams of a Nation': A Palestinian Film Festival." American Anthropologist 106 (1):150-60.
1993 Screening Politics in a World of Nations. Guest Editor, Public Culture 5(3): 465-604.
1992 First Find Your Child a Good Mother: The Construction of Self in Two African Communities by Paul Riesman (edited by David Szanton, Lila Abu-Lughod, Sharon Hutchinson, Paul Stoller, and Carol Trosset). New Brunswick: Rutgers University Press.
Major Articles (minor articles, interviews, and reviews to follow in next section, p. 14)
n.d. In Every Village a Tahrir: Rural Youth in Moral Revolution, 2011-2012. In Public Space and Revolt: Tahrir Square 2011, ed. Elena Tzelepis and Sherene Seikely. Cairo: American University in Cairo Press, in press.
n.d . Muslim Women and the “Right to Choose Freely” (in French). Special issue on “Femmes et Subjectivation en Islam,” edited by Abdelwahed Mekki-Berrada. Anthropologie & Societes, in press.
2016 The Cross-Publics of Ethnography: The Case of the “Muslimwoman.” American Ethnologist 43 (4): 595-608. http://onlinelibrary.wiley.com/doi/10.1111/amet.12377/full
2016 The Values of Ethnography: An Afterword. Veiled Sentiments, 30th Anniversary Edition. University of California Press.
2015 Managing Religion in the Name of National Community. Reprint of chapter 4 from Dramas of Nationhood in Islamism and Cultural Expression in the Arab World (Durham Modern Middle East and Islamic World Series), edited by Abir Hamdar and Lindsey Moore. Routledge, 2015,
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2:17-cv-10310-VAR-SDD Doc # 100-2 Filed 05/23/17 Pg 9 of 24 Pg ID 1542
Lila Abu-Lughod

pp. 60-86.

2014 Taking Back the Village: Rural Youth in a Moral Revolution. Middle East Report 272: 12-17.

2014 The Moral Basis of Hierarchy. In Moral Anthropology: A Critical Reader. Eds. Didier Fassin and Samuel Lézé. Routledge, pp. 173-181.

2013 Authorizing Moral Crusades to Save Muslim Women. The Farhat J. Ziadeh Lecture in Arab and Islamic Studies, 2012. University of Washington, Seattle, Washington.

2012a Living the "Revolution" in an Egyptian Village: Moral Action in a National Space. AE Commentary. American Ethnologist 39 (1):16-20. Reprinted section: The People, Place, and Space Reader, eds. Jen Jack Gieseking, William Mangold, Cindi Katz, Setha Low, and Susan Saegert. Routledge in press.
2012b Pushing at the Door: My Father’s Political Education, and Mine. In Seeking Palestine: New Palestinian Writing on Exile and Home, ed. Penny Johnson and Reja Shehadeh. Delhi, India: Women Unlimited, pp. 43-61.

2012c Forced Entry: My Father’s Education into Politics. In The Engaged Intellectual, eds. Asem Khalil and Roger Heacock. Ibrahim Abu-Lughod Institute for International Studies, Birzeit University Press. In English, Birzeit University Working Paper 2011/27 (ENG) in the Conferences & Public Events Module. http://home.birzeit.edu/ialiis/userfiles/Forced-Entry-MyFather-Education-Into-Politics.pdf Later published in Ibrahim Abu-Lughod and the Engaged Intellectual. Birzeit University, 2011.

2011a A Kind of Kinship. Being There: Learning to Live Cross-Culturally, ed. Sarah Davis and Melvin Konner. Cambridge: Harvard University Press, pp. 8-21.

2011b Seductions of the “Honor Crime.” Differences: A Journal of Feminist Cultural Studies 22 (1): 17-63.

2010 Anthropology in the Territory of Rights, Human, Islamic, and Otherwise. Radcliffe-Brown Lecture in Social Anthropology. Proceedings of the British Academy Vol. 167: 225-62.

2010 Against Universals: Dialects of (Women’s) Human Rights and Human Capabilities” In Rethinking the Human, ed. J. Michelle Molina, Don Swearer, and Susan Lloyd McGarry, pp. 69-93. Center for the Study of World Religions, Harvard Divinity School. Harvard University Press.

2010

The Active Social Life of “Muslim Women’s Rights”: A Plea for Ethnography, not Polemic, with Cases from Egypt and Palestine.” Journal of Middle East Women’s Studies, 6 (1), Winter: 1-45. Abridged and reprinted in Gender and Culture at the Limit of Rights, ed. Dorothy Hodgson, University of Pennsylvania Press, 2011.

2009 Dialects of Women’s Empowerment: The International Circuitry of the Arab Human Development Report . International Journal of Middle East Studies 41, no. 1 (2009) February 83-103. Abridged Arabic translation: Al-Mustaqbal al-‘Arabi 354, August 2008: 88-102.

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2:17-cv-10310-VAR-SDD Doc # 100-2 Filed 05/23/17 Pg 10 of 24 Pg ID 1543
Lila Abu-Lughod

2007

Return to Half-Ruins: Memory, Postmemory, and Living History in Palestine. In Nakba: Palestine, 1948 and the Claims of Memory, edited by Ahmad H. Sa’di and Lila Abu-Lughod. New York: Columbia University Press, pp. 77-104. Abridged and reprinted as “Return to Half-Ruins: Fathers and Daughters, Memory and History in Palestine,” in Rites of Return, edited by Marianne Hirsch and Nancy Miller, Columbia University Press, 2011, 124-136. Arabic Translation: Alif: Journal of Comparative Poetics, 30, 2010. Special Issue on Trauma and Memory. Reprinted in Tawthiq sir wa tajarib al-nisaa’ min manzur al-naw’, edited by Hoda El Sadda. Women and Memory Forum, Cairo, Egypt, pp. 68-93, 2015.

2007 Introduction: The Claims of Memory. With Ahmad H. Sa’di. In Nakba: Palestine, 1948 and the Claims of Memory, edited by Ahmad H. Sa’di and Lila Abu-Lughod. New York: Columbia University Press, pp. 1-24.

2006 The Debate about Gender, Religion, and Rights: Thoughts of a Middle East Anthropologist. Publications of the Modern Language Association, 121 (5): 1621-30.

2006

Det Magtfulde Billede—Den Farlige Medlidenhed (The Power of Images and the Dangers of Pity). In Lettre Internationale, No. 12, August. In Danish. Excerpt printed in Information. Translated to English as The Power of Images and the Dangers of Pity on www.eurozine.com Reprinted in French as "La femme musulmane" Le pouvoir des images et le danger de la pitié.” La Revue internationale des livres et des idées, Le n°6 (juillet-août 2008). Reprinted in Persian on Anthropology and Culture http://anthropology.ir/node/3202, translated by Fateme Sayyarpour. Abridged and Reprinted in Opposing Viewpoints: Human Rights edited by David Haugen and Susan Musser, 3rd. Edition. New York, Gale; Reprinted in Introducing
Women’s and Gender Studies, edited by Catherine Orr and Anne Braithwaite. Routledge, approx Feb 2016.

2006 Local Contexts of Islamism in Popular Media. Amsterdam University Press, Institute for the Study of Islam in the Modern World Papers.

2005

About Politics, Palestine, and Friendship: A Letter to Edward from Egypt. Critical Inquiry. Winter 31 (2): 381-88. Reprinted in Edward Said: Continuing the Conversation, edited by Homi Bhabha and W. J. T. Mitchell. University of Chicago Press, 2005. Spanish and Japanese translations.

2005 On- and Off-Camera in Egyptian Soap Operas: Women, Television, and the Public Sphere. On
Shifting Ground: Muslim Women in the Global Era, edited by Fereshteh Nouraie-Simone. New York: The Feminist Press, pp. 17-35. 2nd edition 2014.

2005 Women, Gender and Modesty Discourses: Overview. Encyclopedia of Women and Islamic Cultures, Vol. 2. Leiden: Brill, pp. 494-98.

2003 Asserting the Local as National in the Face of the Global: The Ambivalence of Authenticity in Egyptian Soap Opera. In Localizing Knowledge in a Globalizing World: Recasting the Area Studies Debate, edited by Ali Mirsepassi, Amrita Basu, and Frederick Weaver. Syracuse: Syracuse University Press, pp.101-127.

Reprinted (abridged and translated into German) as “Die Ambivalenz die Authentizitat” in Grundlagentexte zur transkulturellen Kommunikation, edited by Andreas Hepp and Martin
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Loffelholz. UVK Verlagsgesellschaft mbH, Konstanz, 2002.
2002 Do Muslim Women Really Need Saving?: Anthropological Reflections on Cultural Relativism and Its Others. American Anthropologist 104 (3): 783-790.
Reprinted in Feminist Frontiers VII by V. Taylor, N. Whittier, and L. Rupp. McGraw-Hill, 2006; Abridged and updated as "Saving Muslim Women or Standing with Them?: On Images, Ethics, and War in our Times" in Insaniyaat 1 (1), Spring 2003 (electronic journal), www.aucegypt.edu/academic/insaniyat. Abridged and translated into Swedish in Salam: Om krig, fred och islam, ed. Donald Bostrom, Arena: Stockholm, 2007. Persian Translation: http://www.anthropology.ir/node/3228 Reprinted: Women Worldwide: Transnational Feminist Perspectives on Women, ed Janet Lee and Susan Shaw, McGraw-Hill, 2010. Abridged: The Women, Gender and Development Reader, 2nd edition, ed. Nalini Visvanathan, Lynn Duggan, Laurie Nisonoff and Nan Wiegersma. Zed Press, 2011. Reprinted: Conformity and Conflict, ed. James Spradley and D. McCurdy, Pearson 2011. Reprinted: Applying Anthropology: An Introductory Reader, 10th ed. by Aaron Podolefsky, Peter Brown, and Scott Lacy, McGraw-Hill Higher Education, forthcoming. Reprinted: A Cultural Perspective of Dress, edited by Hazel Jackson, Cognella (University Readers), forthcoming. Reprinted: Women’s Lives, edited by Kirk and Rey, McGraw-Hill, 2013. Portugese Translation: As mulheres muçulmanas precisam realmente de salvação? Reflexões antropológicas sobre o relativismo cultural e seus Outros. Estudos Feministas, Florianopolis, 20(2) 2012:451-470. Reprinted: Opposing Viewpoints: Human Rights volume 3. French Translation: Les femmes musulmanes ont-elles réellement besoin d’être sauvées ? Réflexions anthropologiques sur le relativisme culturel et ses différentes manifestations. In La polysémie du voile. Edited by Maria Eleonora Sanna and Malek Bouyahia. Les éditions des archives contemporains, 2014. Abridged and Reprinted in Dorothy Hodgson ed. Gender, Culture and Power Reader. Oxford University Press, 2016; Reprinted in Keri Vacanti Brondo, Cultural Anthropology: Contemporary, Public and Critical Readings, Oxford University Press, 2016; Reprinted in Mary Evans ed. Feminism, Sage Benchmarks in Culture and Society, forthcoming.
2002 "Egyptian Melodrama—Technology of the Modern Subject?" In Media Worlds, edited by Faye Ginsburg, Lila Abu-Lughod, and Brian Larkin. Berkeley: University of California Press. 11533.
Portugese Translation: Cadernos Pagu 2003 (21):75-102.
2001 Orientalism and Middle East Feminist Studies: A Review Essay. Feminist Studies 27 (1): 10113. Turkish translation: Oryantalizm ve Orta Doğu Feminist Çalışmaları, in ORYANTALIZM: Tartisma Metinleri. Ed., Aytac Yildiz. 2007.
2000a Melodramas of Nationhood. In Arab Nation, Arab Nationalism, edited by Derek Hopwood. New York: St. Martin’s Press, pp. 103-128.
2000b Modern Subjects: Egyptian Melodrama and Postcolonial Difference. In Questions of Modernity, edited by Timothy Mitchell. Minneapolis: University of Minnesota Press, pp. 87114.
2000c Women on Women: Television Feminism and Village Lives. In Women and Power in the
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Middle East, edited by Susan Slyomovics and Suad Joseph. Philadelphia: University of Pennsylvania Press.
1998a Contentious Theoretical Issues: Third World Feminisms and Identity Politics. Women’s Studies Quarterly 26 (3 &4): 25-29.
1998b Introduction: Feminist Longings and Postcolonial Conditions. In Remaking Women, edited by Lila Abu-Lughod. Princeton University Press, 3-31.
1998c The Marriage of Feminism and Islamism in Egypt: Selective Repudiation as a Dynamic of Postcolonial Cultural Politics. In Remaking Women: Feminism and Modernity in the Middle East, edited by Lila Abu-Lughod. Princeton University Press, pp. 243-269.
Reprinted in The Anthropology of Globalization: A Reader. Edited by Jonathan Xavier Inda and Renato Rosaldo. Blackwell, 2001. Abridged and reprinted in Ackbar Abbas and John Nguyet Erni. Internationalizing Cultural Studies: A Reader. Blackwell 2005.
1998d On Photographs, Fieldnotes, and Participant-Observation. Xcp: Cross-Cultural Poetics 3: 34-41.
1998e Television and the Virtues of Education: Upper Egyptian Encounters with State Culture. In Directions of Change in Rural Egypt, edited by Nicholas Hopkins and Kirsten Westergaard. American University in Cairo Press, pp.147-165.
1997a The Interpretation of Culture(s) After Television. Representations 59: 109-134.
Reprinted in The Fate of "Culture": Geertz and Beyond, edited by Sherry Ortner. University of California Press, 1999, pp. 110-135. Excerpted in An Introduction to Women's Studies: Gender in a Transnational World, Inderpal Grewal and Caren Kaplan, 2nd Edition. Boston: McGraw Hill, 2006. Reprinted in Cultural Anthropology, edited by Kim and Mike Fortun, New Delhi: SAGE, 2009. Spanish Translation: Etnografias Contemporaneas 1 (April 2005): 57-92.
1997b Is there a Muslim Sexuality?: Changing Constructions of Sexuality in Egyptian Bedouin Weddings. In Gender in Cross-Cultural Perspective. 2nd ed.edited by Caroline Brettell and Carolyn Sargent. Englewood Cliffs, N.J.: Prentice-Hall, pp. 167-176. 3rd edition, pp.198-207. 4th edition 2005, 247-56.
1997c "Wie Zijn Wij, Waar Gaan We Naartoe?: Egyptische Televisienseries Bieden Antwoord," In SOAPS, edited by R. van Briel, P. Koeman, R. van Krieken, et al. Netherlands: Veronica Uitgeverij BV, Hilverum and Museum voor Volkenkunde, Rotterdam, Netherlands, pp. 38-44.
Reprinted in Soera: Midden-Oosten Tijdschrift 5 (3&4), Dec. 1997, pp. 11-16. Also adapted as “Seeing Through the Suds,” Al-Ahram Weekly. Sept. 4-10, 1997, p.15.
1996a Dramatic Reversals: Political Islam and Egyptian Television. In Political Islam, edited by Joel Beinin and Joe Stork. University of California Press, pp. 269-282.
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Reprinted in Arabic translation as "Al-Islam al-Siyasi w al-Tilifizyun al-Misri," Ru'ya Mughayra 1: 14-23, 1997.
1996b Honor and Shame. In Things as they Are: New Directions in Phenomenological Anthropology. Edited by Michael Jackson. Indiana University Press, pp.51-69.
Reprinted in The New Humanities Reader, edited by Richard E. Miller and Kurt Spellmeyer. Houghton Mifflin, 2003.
1995a Du réalisateur au spectateur: la politique des feuilletons égyptiens. Egypte/Monde Arabe 24: 43-58.
1995b Movie Stars and Islamic Moralism in Egypt. Social Text 42:53-67.
Reprinted in The Gender/Sexuality Reader, edited by Roger Lancaster and Micaela di Leonardo. New York: Routledge, 1997, pp. 502-512.
1995c The Objects of Soap Opera: Egyptian Television and the Cultural Politics of Modernity. In Worlds Apart: Modernity Through the Prism of the Local, edited by Daniel Miller, pp.190-210. ASA Decennial Conference Series. London: Routledge.
Reprinted in The Anthropology of Media. Edited by Kelly Askew and Richard Wilk. Blackwell, 2001. Reprinted in Development: A Cultural Studies Reader. Edited by Susanne Scheck and Jane Haggis. Oxford: Blackwell, 2002.
1995d A Tale of Two Pregnancies. In Women Writing Culture, edited by Ruth Behar and Deborah Gordon, pp. 339-349. Berkeley: University of California Press.
Reprinted excerpt in Mothers and Children: Feminist Analyses and Personal Narratives, edited by Mary F. Rogers and Susan Chase. Rutgers University Press, 2001. Reprinted in Anthropological Theory, 5th ed., by R. Jon McGee and Richard L. Warms, McGraw-Hill Higher Education, 2011.
1993a Finding a Place for Islam: Egyptian Television Serials and the National Interest. Public Culture 5(3): 493-513.
Reprinted in Media in Global Context: A Reader, edited by A. Sreberny-Mohammadi, D. Winseck, J. McKenna and O. Boyd-Barrett. London: Arnold Press, 1997, pp. 311-322.
1993b Islam and Public Culture: The Politics of Egyptian Television Serials. Middle East Report #180, 23(1):25-30.
1993c Islam and the Gendered Discourses of Death. International Journal of Middle East Studies 25(2):187-205.
Reprinted in Arab Society: Class, Gender, Power and Development, edited by Nicholas Hopkins and Saad Eddin Ibrahim. American University in Cairo Press, 1997. pp. 527-550.
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1993d Migdim: Egyptian Bedouin Matriarch. In Struggle and Survival in the Modern Middle East, edited by Edmund Burke III, pp. 271-289. Berkeley: University of California Press.
1991 Writing Against Culture. In Recapturing Anthropology: Working in the Present, edited by Richard Fox, pp. 137-162. Santa Fe: School of American Research Press.
Reprinted in German Translation in Wechselnde Blicke: Frauenforschung in internationaler Perspektive. Geschlecht und Gesellschaft 2, edited by Ilse Lenz and Brigitte Hasenjurgen. Leske & Budrich: Opladen, 1996. Reprinted in Feminist Anthropology: A Reader. Ed. Ellen Lewin. Blackwell 2006. Reprinted in Anthropology in Theory: Issues in Epistemology, edited by Henrietta Moore and Todd Sanders. Oxford: Blackwell, 2006, pp. 466-79. Reprinted in French Translation as “Ecrire contre la culture. Réflexions à partir d'une anthropologie de l'entre-deux”, in Daniel Cefaï dir., L'engagement ethnographique, Paris, Ed. de l'EHESS, 2010, pp. 417-446. Spanish Translation forthcoming.
1990a Anthropology's Orient. In Politics, Theory and the Arab World, edited by Hisham Sharabi, pp. 81-131. New York: Routledge.
1990b Can There Be a Feminist Ethnography? Women and Performance: A Journal of Feminist Theory, 5 (1) #9:7-27.
1990c Introduction: Emotion, Discourse, and the Politics of Everyday Life (with Catherine Lutz). In Language and the Politics of Emotion, edited by C. Lutz and L. Abu-Lughod. New York: Cambridge University Press.
Reprinted excerpt: Emotions: A Cultural Studies Reader, edited by Jennifer Harding, E. Deidre Pribram. Routledge, 2009.
1990d Shifting Politics in Bedouin Love Poetry. In Language and the Politics of Emotion, edited by C. Lutz and L. Abu-Lughod, pp. 24-45.
Reprinted: Abridged and updated version reprinted in Nomadic Societies in the Middle East and North Africa: Entering the 21st Century, edited by Dawn Chatty. Leiden: Brill, 2006, pp. 1013-33. Reprinted in The Emotions: A Cultural Reader, edited by Helena Wulff. Oxford: Berg, 2007. Reprinted in Poetry and Cultural Studies: A Reader, edited by Maria Damon and Ira Livingston. University of Illinois Press, 2009.
1990e The Romance of Resistance: Tracing Transformations of Power Through Bedouin Women. American Ethnologist 17:41-55.
Reprinted in Beyond the Second Sex: New Directions in the Anthropology of Gender, edited by Peggy Sanday and Ruth Goodenough. Philadelphia: University of Pennsylvania Press, 1990, pp.311-337. Reprinted in Art in Small-Scale Societies, edited by Richard Anderson and Karen Field. Prentice-Hall, 1992. Abridged version reprinted in To Speak or Be Silent: The Paradox of Disobedience in Women's Lives, edited by Lena Ross. Chiron Press, 1993. Extract Reprinted in Women's Studies: Essential Readings, edited by Stevi Jackson et al. New York University Press, 1993. Reprinted in Dress and Identity, edited by M.E. Roach-Higgins, J.
Eicher, and K.K.P. Johnson. FB & W, 1995. French Translation: L’illusion romantique de la
résistance : sur les traces des transformations du pouvoir chez les femmes bédouines. Tumultes,
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revue du Centre de Sociologie des Pratiques et des Représentations Politiques de l'université Paris 7. Special issue: Entre résistance et domination. Figures libres ou mouvements imposés. Numero 27, November 2006. Spanish Translation: La Resistencia idealizada: trazando las transformaciones del poder a través de las mujeres beduinas. In Antropología Política. Temas contemporáneous, edited by Montserrat Cañedo Rodríguez and Aurora Marquina Espinosa. Edicions Bellaterra, Barcelona, Spain 2011, pp. 179-207. Reprinted in The Gender, Culture and Power Reader, edited by Dorothy Hodgson, Oxford, 2016. Polish Translation in Resistance and Domination: Theory and Practice, edited by Agnieszka Pasieka and Katarzyna Zielinska NOMOS. Forthcoming.
1989a Bedouins, Cassettes, and Technologies of Public Culture. Middle East Report #159, 19(4): 7-11 and 47.
1989b Zones of Theory in the Anthropology of the Arab World. Annual Review of Anthropology 18:267-306. Arabic Translation: In Kayf niqra’ al-‘alam al-arabi al-yawm? Ru’ya badila fil‘ulim al-ijtima’iya (How do we Read the Arab World Today? Alternative Views in the Social Sciences), edited by Iman Hamdy, Hanan Sabaa, Reem Saad, Malek Roushdy. Trans. Sherif Younis. Cairo, Egypt: Dar al-Ayn li al-Nashr. 2013.
1988 Fieldwork of a Dutiful Daughter. In Arab Women in the Field: Studying Your Own Society, edited by Soraya Altorki and Camillia El-Solh, pp. 139-161. Syracuse: Syracuse University Press. Arabic Translation, 1993, Nour Arab Publishing, Cairo, Egypt.
1987 Modest Women, Subversive Poems. Bulletin of the British Society for Middle East Studies 13 (2): 159-68.
1985a Honor and the Sentiments of Loss in a Bedouin Society. American Ethnologist 12 (2): 245-261. (Recipient of the Stirling Award).
1985b A Community of Secrets: The Separate World of Bedouin Women. Signs: Journal of Women in Culture and Society 10 (4): 637-657.
Reprinted in Feminism and Community, edited by Penny Weiss and Marilyn Friedman. Philadelphia: Temple University Press, 1994; abridged version reprinted in Applied Ethics:A Multicultural Approach, 2nd edition, edited by Larry May, Shari Collins-Chobanian, and Kai Wong. Upper Saddle River, NJ: Prentice Hall, 1997.
Minor Articles, Reviews and Interviews
n.d. In Conversation. Middle East Politics in US Academia: The Case of Anthropology. Lila AbuLughod, Lara Deeb and Jessica Winegar. Comparative Studies of South Asia, Africa, and the Middle East, in press.
2016 Ten Questions about Anthropology, Feminism, Middle East Politics, and Publics. Sindre Bangstad interviews Lila Abu-Lughod. American Ethnologist Online, November
http://americanethnologist.org/2016/lila-abu-lughod-interview/
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2016

“Muslimwomen,” Journalists and Scholars. Review of Excellent Daughters: The Secret Lives of Young Women Who Are Transforming the Arab World by Katherine Zoepf. Women’s Review of Books, November/December. https://www.wcwonline.org/Women-s-Review-of-BooksNov/Dec-2016/muslimwomen-journalists-and-scholars

2016 Should we Act on Israel/Palestine, or Not? Anthropology News Online March 24, 2016.

http://www.anthropology-news.org/index.php/2016/03/24/should-we-act-on-israelpalestine-or-not/
2016 For the Love of Cities and Books: Janet Abu-Lughod (1928-2013). Preface to Arab Cities, edited by Amale Andraos and Nora Akawi. Graduate School of Architecture, Planning and Preservation, Columbia University.

2016 Buffeted by How Others See You. In Being Palestinian: Personal Reflections on Palestinian Identity in the Diaspora, edited by Yasir Suleiman. Edinburgh Press, 31-33.

2016 Interview with Maha AbdelAzim, “Midan: Saving Muslim Women.” The Cairo Review of Global Affairs 20, Winter.

2015 Interview with Rasha Hanafy, Al-Ahram Hebdo, November 11-17, 2015. “Lila Abu-Lughod : La reconnaissance des torts faits par Israël est inimaginable.”

http://hebdo.ahram.org.eg/NewsContent/1100/5/33/13292/Lila-AbuLughod--Lareconnaissance-des-torts-faits-.aspx

2015 Interview with Nourhan Tewfiq, Al-Ahram Weekly December 12, 2015. “Do Muslim Women Need Saving?”

http://weekly.ahram.org.eg/News/14958/23/Do-Muslim-women-need-saving-.aspx

2015 Introduction: The Politics of Feminist Politics. Comparative Studies of South Asia, Africa, and the Middle East 35:1.

2015 Review Symposium. Response to Reviews of Do Muslim Women Need Saving? Ethnicities 15 (5): 759-777.

2014 (With Susanna Ferguson), Debating the “Woman Question” in the New Middle East: Women’s Rights, Citizenship, and Social Justice: Conference Report. Social Difference Online http://socialdifferenceonline.org/116/#more-116

2013 Research on Muslim Women: Compelled by the World. In Getting the Question Rights: Interdisciplinary Explorations at Makere University. Edited by Mahmood Mamdani. Makerere Institute of Social Research (MISR). Kampala, Uganda, pp. 75-96.

2013 Topless Protests Raise the Question: Who Speaks for Muslim Women? The National. November 30. http://www.thenational.ae/thenationalconversation/comment/topless-protestsraise-the-question-who-can-speak-for-muslim-women

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2013 Do Muslim Women Need Saving? TIME, November 1. http://ideas.time.com/2013/11/01/do-muslim-women-need-saving/print/

2013 Do Muslim Women Need Saving? The Daily Beast. October 22. Excerpt. http://www.thedailybeast.com/witw/articles/2013/10/22/do-muslim-women-need-saving.html

2013 Interview by Ehsan Lorafshar for the Iranian Institute of Anthropology and Culture. In Farsi. http://anthropology.ir/node/19157

2012a Beyond the “Woman Question” in the Egyptian Revolution. Lila Abu-Lughod and Rabab El Mahdi. News and Views. Feminist Studies 37, No. 3:683-91. Translated to Turkish: Feminist Approaches in Culture and Politics [Kultur ve Siyasette Feminist Yaklasimlar] 16.

2012b New Texts Out Now, Lila Abu-Lughod and Anupama Rao, “Women’s Rights, Muslim Family Law, and the Politics of Consent.” Interview. Jadaliyya. http://www.jadaliyya.com/pages/index/4337/new-texts-out-now_lila-abu-lughod-and-anupamarao-

2012c

Tradition and the Anti-Politics Machine: DAM Seduced by the “Honor Crime.” With Maya Mikdashi. Jadaliyya, November 23, 2012. http://www.jadaliyya.com/pages/index/8578/tradition-and-the-anti-politics-machine_damseduce

2012d Transnational Politics and Feminist Inquiries in the Middle East: An Interview with Professor Lila Abu-Lughod. Basuli Deb. Postcolonial Text 7, No. 1. Special section on “Transnational Inquiries: Representing Postcolonial Violence and Cultures of Struggle.” http://postcolonial.org/index.php/pct/article/view/1287/1293

2011 Review of Nadera Shalhoub-Kevorkian, Militarization and Violence Against Women in Conflict Zones in the Middle East. American Ethnologist 38 (1).

2010 Foreword. Displaced at Home: Ethnicity and Gender among Palestinians in Israel, ed. Rhoda Kanaaneh and Isis Nuseir. Albany: SUNY Press, ix-xiii.

2008 Speaking About Anthropological Theory. In A History of Anthropological Theory, Paul Erickson and Liam Murphy. 3rd edition. Toronto: Broadview Press.

2007 Introduction. Pioneering Feminist Anthropology in Egypt: Selected Writings from Cynthia Nelson. Ed. Martina Rieker. Cairo Papers in Social Science 28 (2):1-7.

2006 Review of Julie Peteet, Landscape of Hope and Despair: Palestinian Refugee Camps. Journal of Palestine Studies, 141, Vol. 36, no. 1:84-85

2006 Gender, Human Rights, and the Global Locations of Liberalism. ISERP Newsletter, Fall 2006. (with Anupama Rao)

2004a The Adjacent Art of Documentary: A Palestinian Film Festival. American Anthropologist 106

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(1):150-51.
2004b Politics in the Everyday: Women in Palestinian Women’s Films. American Anthropologist 106 (1): 157-58.
2004c Review of Kamran Asdar Ali, Planning the Family in Egypt. Journal of the Royal Anthropological Association.
2004d Ethnography in/of Nations. General Anthropology 10 (2), Spring 2004:1-4.
2001 My Father’s Return to Palestine. Jerusalem Quarterly File, Summer 2001.
2000a Locating Ethnography. Ethnography 1 (2):261-267.
2000b Review of Fadwa El Guindi, Veil: Modesty, Privacy and Resistance. Middle East Journal 54 (4):672-4.
1999a Comment on “Writing for Culture” by Christoph Brumann. Current Anthropology 40, Special Supplement on "Culture--A Second Chance?" February, pp. S13-15.
1999b Feminism, Nationalism, Modernity. Ayse Parla interviews Lila Abu-Lughod. ISIM Newsletter. 2:28.
1998 Lila Abu-Lughod Ile Soylesi: Yenilenen Kadinlar (Interview about Remaking Women, in Turkish) Cogito 16: 237-253.
1998 Assessing Gender/Women’s Studies: Discussion. In Arab Regional Women’s Studies Workshop, edited by Cynthia Nelson and Soraya Altorki. Cairo Papers in Social Science 20 (3): 63-67.
1998 Review of Walter Armbrust, Mass Culture and Modernism in Egypt. Journal of the Royal Anthropological Institute 4 (1):173-74.
1997 Review of Kirsten Hastrup, A Passage to Anthropology. Folk 38:147-50.
1996 The Dynamics of Cultural Encounters. In Spotlight on the Muslim Middle East: Crossroads. NY: American Forum for Global Education.
1995a Thinking about Identity. In Spotlight on the Muslim Middle East: Issues of Identity. NY: American Forum for Global Education.
1995b "Our Blood will Plant its Olive Tree." Foreword to Second Life: A West Bank Memoir by Janet Varner Gunn. University of Minnesota Press.
1995c Review of Margot Badran, Feminists, Islam, and Nation and Beth Baron, The Women's Awakening in Egypt. Women's Review of Books 22 (6): 13-14.
1995d Review of Marnia Lazreg, The Eloquence of Silence: Algerian Women in Question. (In Arabic)
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Nour Quarterly 3: 17-18.
1993a Questions of Modernity. With T. Mitchell. ITEMS 47(4):79-83. Reprinted in Items: Insights from the Social Sciences (2016) From our Archives. http://items.ssrc.org/questions-of-modernity/
1993b Sad Songs of the Western Desert. In Everyday Life in the Contemporary Middle East, edited by Donna Lee Bowen and Evelyn Early, pp.281-286. Bloomington: Indiana University Press. 1st, 2nd and 3rd editions.
1993c Review of Janice Boddy, Wombs and Alien Spirits: Women, Men, and the Zar Cult in Northern Sudan, American Ethnologist. 20(2):425-426.
1991a Public Culture in Contemporary Egypt. Newsletter of the American Research Center in Egypt #154: 9-12.
1991b Nine days into the War. With Gayatri Chakravorty Spivak. Public Culture 3 (2): 121-133.
1990 Review of Richard Antoun, Muslim Preacher in the Modern World, Journal of Ritual Studies 4 (2):395-398.
1988a Paul Riesman: An Appreciation. Anthropology Newsletter 29 (6): 12-13.
1988b A Bedouin Community: Ethnography in a Different Voice. Newsletter of the American Research Center in Egypt 141 (Spring): 1-4.
1988c Film Review of "El Sebou': Egyptian Birth Ritual," Visual Anthropology 1 (4): 497-99.
1988d Review of Monique Gadant, ed., Women of the Mediterranean. Association of Middle East Women's Studies Newsletter 3(2):4-6.
1988e Review of Malek Alloula, The Colonial Harem, American Ethnologist 14 (2): 393-4.
1987a Bedouin Blues. Natural History 96 (7): 24-33.
1987b Film Review of "A Sense of Honor." American Anthropologist 89 (3): 782-83.
1984 Change and the Egyptian Bedouins. Cultural Survival Quarterly, 8 (1): 6-10.
1983 Review of Unni Wikan, Behind the Veil in Arabia. Signs: Journal of Women in Culture and Society 9 (1): 156-158.
INVITED LECTURES AND CONFERENCE PRESENTATIONS (does not include regular and numerous presentations on panels at the annual meetings of the American Anthropological Association and the Middle East Studies Association, or events at my own university)
2017 Department of Anthropology, University of Oslo, Norway May 2
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House of Literature, Oslo, Norway May 2 House of Literature, Bergen, Norway, May 3 Fairfield University, Religious Studies, March 2 Morgan Lecture, Clarke Forum, Dickinson College, February 28 Muslim Studies, Gender Studies and Anthropology, Michigan State University, February 16

2015

Edward Said Memorial Lecture, American University in Cairo, October 31 Distinguished Visiting Professor Lecture, Department of Anthropology, Sociology and Psychology, American University in Cairo, October 29 University of Colorado, Boulder, Distinguished Lecture, Feb. 13 Harvard University, Middle East Center, February 26 Tufts University, Anthropology and Arabic Studies, Feb. 25, 26 Fordham University, Anthropology, Lincoln Center

2014

University of Michigan, Women’s and Gender Studies Program Lecture, Sept. 23 CUNY Women’s Studies and Middle East American Center Lecture, October 7 University of New South Wales, Sydney, Australia, Distinguished Visitor, Nov. 3 University of Melbourne, Australia Distinguished Visitor, Nov. 4-5 LaGuardia Community College, Queens, NY, “Islam: Gender Sacred,” Nov. 19 “Representation and the Arab City,” Presentation Columbia University, Nov. 21

2013 Edward Said Conference, “In the Time of Not Yet.” Centre for the Humanities, Utrecht University, The Netherlands, April 15 – 17

2012

Symposium on “The Muslim Protagonist” Columbia Muslim Student Association, Nov 10 Hawthorn Anthropology Lecture, University of British Columbia, Vancouver, Oct 3 and 4 Annual Lecture, Centre for the Comparative Study of Muslim Societies and Cultures, Simon Fraser University, Vancouver, Canada October 4 Dissections: New Directions in Research on the Middle East and North Africa. Middle East American Center and Humanities Center, CUNY Graduate Center, September 14

2011 Conference on “Activism and the Academy,” panel on “Building and Rebuilding Societies in Africa.” Barnard Center for Research on Women, September 23 Global and Local Discourses on Women and Islam. Sawyer Seminar on “Globalization and the New Politics of Women’s Rights,” University of Wisconsin, Madison, September 9 Workshop on Debates on Gender in the Public Sphere, Makerere Institute for Social Research, Kampala, Uganda, May 16-17 Conference on “The Engaged Intellectual,” Birzeit University, Ibrahim Abu-Lughod Institute, Ramallah, Palestine, April 12 Seminar, Centre d'Etudes féminines et d’Etudes de Genre (Université Paris 8), Paris, France March 9 Seminar, “Genre, politique, sexualité(s). Orient/Occident” Fondation Maison des Sciences de l'Homme, Paris, France, March 7 Colloquium on “Human Rights in Islam.” Duke University-UNC Center for Middle Eastern Studies, Keynote. Durham, N.C., February 24 Seminar, Gender Studies Project, Mada Al- Carmel – The Arab Center for Applied Social Research, Haifa, January 21

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2010

“Challenges of Oral History,” Qatar National Museum Authority, Doha, Qatar, November Center for Arab and Middle Eastern Studies, American University in Beirut, Lebanon, October NCRW-UNIFEM Annual Conference, “Strategic Imperatives for Ending Violence Against Women,’ New York, June

2009

Seminar on “Gender in Postcolonial Legal Orders,” Harvard Law School, September Conference on “The Practice of Human Rights,” New School University, September Conference on “Culture of Rights/Rights of Culture,” Rutgers University, February Women, Religion and Globalization Faculty Seminar, Yale University, February Journal of Middle East Women’s Studies Annual Distinguished Lecture, UCSB, February “Politics and Ethics of Muslim Women’s Rights,” with Saba Mahmood, University of California at Berkeley and Grace Cathedral, February

2008

Carnegie Conference on “The Faces of Contemporary Islam: Fresh Perspectives on Theory, Practice, and Foreign Policy,” Women’s Foreign Policy Group, Washington D.C., November Gender Roundtable, Ethical Culture Fieldston School, November Department of Anthropology, Women in Anthropology, University of Pennsylvania, January Conference on “Gender and the Politics of 'Traditional' Muslim Practices,” Pembroke Center, Brown University, March Conference on “Rethinking the Human,” Harvard University, Center for World Religions, May

2007

Feminist Anthropology Workshop, New School University, April Conference on “Engaging Islam: Feminisms, Religiosities.” Keynote Speaker. U. Mass Boston, September Senior Seminar, Department of Social Anthropology, Cambridge University, October Conference on “The Politics of Religion and Sexuality.” CUNY Graduate Center, November Distinguished Address, Middle East Anthropology Section, Annual Meeting of the American Anthropological Association, November

2006

Queens Library International Resource Center Laura C. Harris Symposium: “Gendered Borders,” Denison University Keynote Address, Resourceful Women Conference, Aquinas College Colloquium in ME and SA Studies, Women’s Studies, and Anthropology, University of California at Davis

2005 Women and Foreign Affairs, Ford Foundation Workshop, New York Human Rights and the Humanities. MLA Conference, CUNY, New York National Council for Research on Women, Conference on "Power Matters," New York

2004

Transnational Politics and the Globalization of Gender Workshop, Pembroke Center, Brown U. La Trobe University, Distinguished Visiting Professor, School of Social Science, Melbourne, Australia Anthropology Seminar, Melbourne University, Australia Anthropology Department and Women's Studies Program, Bard College Distinguished Annual Lecture, Institute for the Study of Islam in the Modern World, Netherlands

2003 Distinguished Lecture, General Anthropology Division, AAA Meetings, Chicago

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Lila Abu-Lughod

Distinguished Visitor, Institute for the Humanities, University of Texas at Austin Distinguished Lecture, Institute for Research on Women, Rutgers University Anthropology Colloquium, London School of Economics Distinguished Visiting Scholar, Cultural Studies, University of California at Santa Cruz Center for Middle East Studies colloquium series, University of California at Berkeley Discussant, “Dreams of a Nation” Palestinian Film Festival, Columbia University

2002 Symposium, “Responding to War,” Institute for Research on Women and Gender, Columbia Women’s Studies and Globalization Programs, Yale University Robert Schumann Center for Mediterranean Studies, European University, Fiesole, Italy Annenberg Seminar, Departments of History and Middle East Studies, University of Pennsylvania Commentator, Women and Society University Seminar, Columbia University Discussant, New York Academy of Sciences, Anthropology Section Center for Culture, Media, and History, New York University

2000 Turath, Arab Heritage Week, Columbia University Anthropology Colloquium, University of Iowa Middle East Institute Brown Bag Series, Columbia University

1999 Discussant, Film Festival, “Screening Identities: South Asian Documentaries,” New York University Keynote address, Conference on "Global Culture" University of Karlsruhe, Germany Anthropology and Feminist Studies Colloquium, New School for Social Research Conference on “Nation and Cultural Perceptions of Identity.” UCLA Distinguished Lecture Series on "Global and Local Identities," Michigan State University

1998

American University in Cairo, Gender Studies Lecture Series Plenary Session on “Orientalism Twenty Years After,” Middle East Studies Association Annual Meetings, Chicago Discussant, conference “Little Stories of Love and Attraction” NYU Conference on “Crossing Borders: Rethinking Area Studies,” Five Colleges, Amherst Mellon Seminar on Public Culture and Transnationalism, Duke University Critical Dialogues Series “Ethnographic Revisions,” New Museum of Contemporary Art, NYC.

1997

Departments of Anthropology and Near Eastern Studies, Princeton University Scholars Lecture, New York University Conference on "Intellectual and Curricular Challenges in Integrating Gender and International Perspectives into Teaching and Research,” National Council for Research on Women Conference on "Culture, Society and Economy in Rural Egypt at the End of the 20th Century," Aswan, Egypt Netherlands Institute for Archeology and Islamic Studies, Cairo, Egypt American Research Center in Egypt, Cairo Arab Women’s Studies Regional Conference, American University in Cairo.

1996 Keynote Address, Boas-Benedict Conference, Department of Anthropology, Columbia University Distinguished Lecture, Department of Anthropology, Smith College

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Conference on "Questions of Modernity" New York University (co-organized) Workshop on "Film and Society in Egypt" Columbia University and the American Research Center in Egypt Series on Arab Society, Department of Anthropology, Harvard University.

1995

University of Michigan, Distinguished Middle East Lecture Series St. Catherine's College, Distinguished International Studies Lecturer Rutgers University, Department of Anthropology and Women's Studies Conference on "Media (Na)tions: Television and Nationality," Brown University Symposium on "Women, Nationalism and Cultural Politics: Egyptian Moments", New York University (organized) Anthropology Colloquium, University of Minnesota.

1994

"Women and Society Seminar," Columbia University "Cultural Production Under Late Capitalism," Plenary Session, Society for Cultural Anthropology Meetings, Chicago Five-College Middle East Program, Hampshire College Anthropology Colloquium, Harvard University Middle East Center, Columbia University Departments of Women's Studies and Anthropology, University of North Carolina.

1993

Anthropology Society, Hunter College, CUNY Anthropology Society, Queens College, CUNY Society for Psychological Anthropology Meetings, Montreal, Canada Association of Social Anthropologists Decennial, Oxford SSRC Conference on "Questions of Modernity," Cairo, Egypt (co-organized).

1992

Peoples and States Seminar Series, Department of Anthropology and Center for International Studies, MIT Middle East Center, Harvard University Department of Performance Studies, New York University.

1991

Women's Studies Colloquium, University of Michigan Anthropology Colloquium, New York University Dixon Place, NYC Religion Colloquium, Columbia University.

1990 American Research Center in Egypt, Cairo American University in Cairo.

1989

Advanced Seminar, "Representing Anthropology," School of American Research, Santa Fe Conference on "Lament," University of Texas at Austin Middle East Colloquium, University of Texas at Austin Anthropology Colloquium, Cornell University Anthropology Colloquium, University of California at Davis Rama Mehta Colloquium, The Bunting Institute, Radcliffe College.

1988 Anthropology Colloquium, University of Chicago

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Lila Abu-Lughod

Department of Anthropology, Johns Hopkins University Department of Anthropology, New School for Social Research Department of Anthropology, University of Pennsylvania New York Academy of Sciences Near East Studies Program, University of Massachusetts at Amherst Women's Studies Program and Department of Anthropology, Princeton University Department of Sociology and Anthropology, Bryn Mawr College

1987

Center for Contemporary Arab Studies, Georgetown University Anthropology Colloquium, CUNY Graduate Program in Anthropology Women's Studies Program, Hunter College Women's History Colloquium, New York University Anthropology Colloquium, Stanford University.

1986 Anthropology Colloquium, New York University Faculty Colloquium, Williams College Anthropology Colloquium, Princeton University Anthropology Colloquium, State University of New York at Binghamton

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LILA ABU-LUGHOD Columbia University
The cross-publics of ethnography:
The case of “the Muslimwoman”

ABSTRACT
Engaged anthropology, public anthropology, and public ethnography are names for a long tradition of trying to make a difference beyond the academy. The passionate and polarized responses of both nonacademic publics and engaged scholars in adjacent ﬁelds to my attempt to intervene in public debates about Muslim women’s rights raise questions about the ethics, politics, and potentials of ethnography’s travels across fractured global publics. They illuminate the geopolitical terrain of current debates about feminism and Islamophobia and reveal that ethnography may be most effective in interrupting or unsettling hegemonic representations and political formations when it makes available alternative accounts of lives and communities that can then authorize and give substance to critics’ arguments. Does this instrumentalization of ethnography beneﬁt those whose lives anthropologists share through ﬁeldwork? [engaged anthropology, public ethnography, rights, ethics, feminism, Islamophobia, Muslim women]

A nthropologists have long tried to make a difference beyond the academy. They have used their understandings of human social life derived from ethnographic and comparative work to intervene in political debates of the day. Despite anthropology’s implication in colonial and development projects, inevitable for a discipline forged and still strongest in Europe and its settler colonies in North America, South Africa, and the Paciﬁc, anthropologists have often challenged prevailing views and hegemonic political arrangements. They have taken public stands on everything from utilitarianism to evolutionary thinking, racism to norms of gender and sexuality, development to neoliberal governmentality, militarization and war to humanitarianism, HIV/AIDS to indigenous and human rights. Recent efforts to institutionalize public anthropology (Borofsky 2000) build on this tradition of engaged anthropology.
Today, some of the best anthropologists “make politics matter differently” by “repopulating public imagination with people and their precarious yet creative world-making,” as Joa˜o Biehl and Ramah McKay (2012, 1224) have put it in a review essay praising “ethnography as political critique.” Didier Fassin (2013) follows in arguing that it is “public ethnography” rather than public anthropology that anthropologists might distinctively offer to wider publics and for the public good.
In addition to intervening in public debates, anthropologists should study the afterlives of their publications, Fassin (2015) argues, rather than imagining their task is over after they have been through the “two lives” of ethnography: the ﬁeldwork and the writing. The trajectory of my ethnographic work and the responses to my effort to intervene in contentious debates in the United States and Europe about Muslim women, debates tightly linked to policies toward a region where the United States has been involved controversially, raise three issues that anthropologists who use ethnography to intervene in urgent social and political affairs must think about carefully: First, how prepared are we for the ways nonacademic publics respond to our work, and even for the readings of our work by engaged scholars in adjacent ﬁelds? Are there ways to use these responses productively? Second, can the ethnographic speciﬁcity with which anthropologists work effectively interrupt and unsettle hegemonic representations and politics? In what contexts might these challenges be most effective? And third, is public ethnography a responsible way to repay the debts we incur to those who have given us the privilege of letting us share their lives and worlds to do our ethnographic work?

AMERICAN ETHNOLOGIST, Vol. 43, No. 4, pp. 595–608, ISSN 0094-0496, online ISSN 1548-1425. ⃝C 2016 by the American Anthropological Association. All rights reserved. DOI: 10.1111/amet.12377

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As an anthropologist with deep commitments to ethnographic ﬁeldwork in local communities in the Arab Middle East, I felt compelled to respond to the ways women like those with whom I had worked were catapulted to the center of popular media attention in the service of disturbing global imperial political interventions in 2001. To help justify the military invasion of Afghanistan by the United States and its allies, politicians and the media put the spotlight on the rights of Afghan women, and by extension all Muslim women. For the next decade, my ethnographic work focused speciﬁcally on the question of women’s rights. I returned several times to a village in Egypt where I already had been doing ﬁeldwork for many years. I also began to study transnational and local feminist activism, to read anthropological work on human rights and humanitarianism, and to examine popular genres of writing about Muslim women, including what Dohra Ahmad (2009) called pulp nonﬁction. In 2013, I published Do Muslim Women Need Saving? (Abu-Lughod 2013), a book rich in ethnographic substance and consciously directed to a wider public. My intent was to challenge the prevailing common sense.
Many of the book’s arguments were addressed to other scholars and students, but I imagined the mainstream liberal American public as an important audience for the book, given that this audience is more familiar with media representations and trade books than with academic works. Do Muslim Women Need Saving? took up key topics of public debate: freedom, veiling, honor cultures, violence, Islam, and women’s rights. I sought to offer alternatives to the multistranded, highly mediated, and institutionalized public production of what miriam cooke (2007) has called “the Muslimwoman”—a homogenized creature oppressed by her religion, her culture, and her men. I examined prevailing representations. I analyzed the forces that produced them and gave them credibility. I created frameworks for thinking differently about the lives of such women, based on intimate looks at particular lives in particular places. This was the anthropological and ethnographic contribution.
This book reached more diverse publics than my previous ethnographies. There was a range of initial responses to it: near silence in my target public sphere, the US liberal mainstream (which plays a crucial role in building a consensus about US policies toward the Middle East and Muslims), outrage in one counterpublic of which I had been barely aware, and touching personal afﬁrmation in another marginalized counterpublic that had not been in my direct sights when I wrote. Academic reviews took longer to come in. Although these have been largely positive and thoughtful, a majority have come from outside anthropology, particularly from scholars interested in women and global feminism. Some feminist activists who work on and in the Muslim world were more ambivalent toward the book. This reaction, as I will discuss, illustrates Marilyn Strathern’s

(1987) observation that the relationship between anthropology and feminism is awkward. The awkwardness has intensiﬁed, I would suggest, as feminisms have taken ﬁrm root in various settings, gone global, and aligned with other transnational political movements and institutions from human rights and humanitarian governance to the “war on terror.”
Ethnography’s travels
Anthropologists are increasingly concerned about the ethics, politics, and potentials of ethnography’s travels across fractured global audiences. Do Muslim Women Need Saving? differed from my previous ethnographies, which had been based on intensive long-term research in particular communities in Egypt and organized in terms of topics of interest to scholars of social life: theories of culture, gender, kinship, and morality; the politics of emotion; the social role of expressive culture; nationalism and mass media; ethnographic writing; and the politics of representation and knowledge production. Although the core of the book grew out of scholarly articles published ﬁrst in academic journals, I rewrote them to make them more accessible because I wanted to inﬂuence debates on women’s rights, human rights, and the politics of Islam and Islamism in the 21st century. I took tentative steps to ﬁnd a trade publisher. When rebuffed, I retreated with relief to the familiar standards and intellectual freedom of an academic press.
Ethnography plays a key role in the book. Anthropologists always think through big issues using the situated and microscopic knowledges that they develop by doing ﬁeldwork in particular places, as Clifford Geertz (1973) noted. Because I could not reconcile what I was encountering in public discourse with what I knew from years of ﬁeldwork in Egypt, I spent a decade doing more ethnographic research so I could tackle the subject of Muslim women and their rights. Unlike other excellent recent works that challenge the common sense about the Muslimwoman by analyzing gendered Orientalism or the politics of imperial feminism (e.g., Grewal 2005; Hesford 2011; Kapur 2002; Kumar 2012), I built my arguments systematically out of the everyday lives and concerns of women who might be seen as falling within this charged ﬁgure of the Muslimwoman— a ﬁgure that runs through media coverage, security concerns, international governance, immigration policies, military intervention, and even feminist advocacy.
Can nonspecialist publics that have not been trained in reading our genre assimilate anthropological modes of argument and evidence? Is ethnography translatable? Can we expect those outside our discipline to appreciate what the particulars of everyday lives, grasped in their complicated social contexts and conveyed through narratives, tell us about the way the world works? That is the essence of anthropological and ethnographic work. It is the heart of

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our method. It is what we teach our students by training them to read ethnographies.
The ways my book was taken up can provide insight into what happens when ethnographic work leaves the comfort zone of its customary disciplinary and academic publics. Do Muslim Women Need Saving? was caught in cross-publics, in both senses of the word—it crossed different publics and made at least one public very cross. It entered multiple lifeworlds at odds with one another and with anthropology. It was opened up to different criteria of authority and judgment, not to mention rules of civility. Other anthropologists have written about what happens when the audiences for their work go beyond fellow anthropologists; some of the most troubling afterlives of ethnographies are those in the communities themselves, when their subjects read or hear rumors about the work (Brettell 1996; Scheper-Hughes 2001). Ethnographies can also get caught in wider political and institutional battles, subjecting anthropologists to hurtful vitriol, as Fassin (2015) describes for his work on HIV/AIDS politics in South Africa and on policing in France. But he steps back to show how much he learned from these responses about the political and institutional dynamics in these countries.
Similarly, by examining how nonacademic audiences received my book, we can learn a great deal about the political terrain, structure, and affective force in the United States and Europe of what some people gloss as Islamophobia (though matters are more complex than this shorthand suggests). I will analyze the early responses before turning to the more awkward responses from fellow academics who are not anthropologists; their reactions can be used to understand more clearly the ways Islamophobia has made navigating women’s-rights advocacy even more treacherous than it was when feminists had to contend with what Leila Ahmed (1982) called colonial feminism.
Although I am media shy and declined to hire any of the publicists who offered me their services, I confess that I was disappointed by the relative silence with which my book was received, at least publicly, by the US liberal public sphere. The latter includes those who write, promote, and devour books like those I criticize in my opening chapters—including the sensational franchise of the New York Times columnist Nicholas Kristof, Half the Sky, cowritten with Sheryl WuDunn (Kristof and WuDunn 2009). Endorsed by celebrities, the book advocated saving the world, one woman at a time, by battling gender inequality. It has even led to video games and TV movies.
Perhaps this silence is the fate of almost any book published by an academic press. The New York Times website, it must be said, aired a video interview with me two months after the book came out; the New York Times Magazine published a review four months after it was published.1 The video was two minutes long, and the book review was one line long and appeared in very small print at the bottom

of the page in a section called Marginal Marginalia. For a book that I had worked on for over a decade, that was the fruit of ethnographic research carried out over 30 years, and that was on a subject that Juliane Hammer (2013, 110) has characterized as “center stage” in North American and European public discourse—this seemed too little.
The silence seemed especially ironic when, a few months after my book was published, Kristof (2014) wrote a column in the New York Times Sunday Review called “Professors, We Need You!” He began by noting that “some of the smartest thinkers on problems at home and around the world are university professors, but most of them just don’t matter in today’s great debates.” He blamed some of this on the “anti-intellectualism in American life,” which is certainly the case compared to Europe. The rest of the article, however, castigated professors for being out of touch and marginalizing themselves by using turgid prose. I had worked hard to use accessible prose, and I was very much in touch with current issues. So I had to surmise that I may not have got a hearing because the liberal public sphere did not welcome my critiques of the media and of the devastating effects of US foreign policy toward the Middle East, the Muslim world, and Palestine.
The book received a different reception in the United Kingdom, providing evidence that hostile views of the Middle East and Islam—with the Muslimwoman as linchpin—have a special hold on the US public. A major UK newspaper and a number of serious UK publications reviewed the book almost immediately. These were signs that despite serious problems of racism and Islamophobia in the United Kingdom, the public debate there on Muslims is more open and inclusive; there are certainly more critical spaces in the UK public sphere compared to that of the United States. The demographics of the UK reviewers hint at this diversity: all but one (a negative review by a conservative writing in the Sunday Times) were writers or scholars of Arab, Turkish, or South Asian background.
Polarized online counterpublics
The blogosphere, however, was not silent. This is a relatively new facet of the mediation and circulation of scholars’ work with which we must contend. The ﬁrst reviews of my book in North America appeared online, representing two opposing counterpublics. These online reviews traded in different currencies than those of the academy or the learned pages of the high-brow UK Literary Review or Los Angeles Review of Books (the only US public forum to review the book). The reviews’ criteria for judgment, their emotionality, and their politics lay outside the disciplinary and academic conventions that were more familiar to me.
These polarized responses illuminate some of the political stakes of my venture into public ethnography on the question of Muslim women. The ﬁrst surprise was the

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measure used by the two blogging counterpublics to evaluate the book: truth versus lies. This is foreign terrain for anthropologists raised on Max Weber, Clifford Geertz, James Clifford, Donna Haraway, Michel Foucault, and Edward Said, to name a few who have shaped our disciplinary common sense about objectivity.
On the positive side, reviews began to appear on feminist websites and blogs shortly after I published the book. These praised the book for confronting stereotypes. Some of the smartest reviews appeared on blogs not speciﬁcally oriented to Middle Eastern or Muslim issues, the most lucid appearing on Feministing under the title “Not Oprah’s Book Club.” Although the writer highlighted my ethnographic experience, she summed up the core argument of the book in terms of myths and realities:
It’s an age-old fairy tale: an artiﬁcial division between the West and its mythical counterpart, what AbuLughod calls “IslamLand.” On one side: innocent moral agents—the beneﬁcent saviors. On the other: nefarious brown men and “caged birds,” the Muslim women utterly disempowered to resist them. In reality, the spread of international capital and centuries of (ongoing!) colonial history make it impossible to separate “their” world from our own. (Villano 2013)
Do Muslim Women Need Saving? also hit a chord with the writers at Muslimah Media Watch (http://www .muslimahmediawatch.org), founded in 2007 by Fatemeh Fakhraei. The blog describes itself as
a forum where we, as Muslim women, can critique how our images appear in the media and popular culture. Although we are of different nationalities, sects, races, etc., we have something important in common: we’re tired of seeing ourselves portrayed by the media in ways that are one-dimensional and misleading.2
The ﬁrst of two reviews on Muslimah Media Watch opens with a quote from the introduction to my book: “I am often bewildered by what I read or hear about ‘the Muslim woman.’” The review goes on, “For those of us who share this sentiment, Abu-Lughod’s book is essential reading . . . (written in an accessible, blissfully jargon-free style) on the issues we at Muslimah Media Watch are concerned with on a daily basis” (tasnim 2013; emphasis mine).
Another public offered the opposite judgment, expressed through accusations that I lied. This tune began to play, softly at ﬁrst and then louder, in a counterpublic about which I have since learned a good deal, especially from the Norwegian anthropologist Sindre Bangstad (2013, 2014). The ﬁrst review, in the Rupert Murdoch–owned British conservative newspaper the Sunday Times, was headlined “Drawing a Veil over the Truth.” The subtitle was “Some of Her Conclusions Defy Belief” (Russell 2013).

This judgment and language were ampliﬁed in the right-wing Islamophobic blogosphere, where the reach and particular animus of this discourse of truth and lies became apparent. The sinister notes ﬁrst sounded in Bruce Bawer’s review of my book in FrontPage Magazine. It was titled “Saving Islam from Its Victims.” Bawer was affronted by the book. He wrote,
She knows, in short, that every day millions of Muslim women endure suffering rooted in the Koran and in Muslim tradition. But instead of using her knowledge to try to help improve those women’s lives, she uses her rhetorical skills to dance around the truth—dodging, deﬂecting, doing whatever it takes to uphold the stunningly callous and patently dishonest proposition that Muslim women don’t need saving. (Bawer 2014)
A US writer based in Norway, Bawer is associated with a network of writers and bloggers whose work was quoted approvingly in the Norwegian mass murderer Andre Behring Breivik’s 1,516-page cut-and-paste tract called 2083: A European Declaration of Independence. As Martha Nussbaum (2012, 55) and others rightly point out, none of those whom Breivik quoted can be held responsible for his gunning down 77 youth leaders of a major Norwegian political party that he considered soft on Muslim immigration. But his text can be used to trace the existence of an Islamophobic network of which some of my reviewers are a part. Bawer’s book titles give away his political stance: While Europe Slept: How Radical Islam Is Destroying the West from Within and Surrender: Appeasing Islam, Sacriﬁcing Freedom. Bawer was in touch with another writer Breivik quoted: a Norwegian who went by the name “Fjordman” and wrote for a blog called Gates of Vienna.3 In case readers are unaware of the signiﬁcance of the title, the site explains, “At the siege of Vienna in 1683 Islam seemed poised to overrun Christian Europe. We are in a new phase of a very old war.”
As a scholar accustomed to academic book reviews, I was especially taken aback by the comments posted to Bawer’s online review. Online comments, I have since discovered, are notoriously abusive. Although sometimes frightening, they are part of what we must confront when our publics become more diverse. Public ethnography makes us lose control over the mediations of our work (Fassin 2015). I quote only two to clarify the connotations of “dishonesty” within this particular public. “Oldtimer” wrote, “i would like to see a picture of her. Is she wearing that face covering burka that the women she talks about Must wear? Or is all she says just, I think it’s called, taquia(?).”4
As Bangstad’s (2013, 2014) research reveals, this comment includes a telltale sign of the Islamophobic worldview that inspired Breivik’s hostility: the term taqiyya. The term also appeared in a comment on Bawer’s review by

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“Geoffrey” (who describes himself as a conservative/libertarian and supporter of the Tea Party): “Lila Abu-Lughod is a practitioner of stealth jihad, a master of taquiyya. The author [of the review] shouldn’t be surprised at her lying. She advances Satan’s cause and he has a special place in his chest (no heart) for her.”
I was surprised to ﬁnd taqiyya, a concept from Shi’ism related to the ethics of concealing one’s faith to avoid death, such an everyday concept for nonspecialists like these. Yet, as Bangstad explains, it emerged as a key term in the foundational writings in the genre known as Eurabia established by the author Bat Ye’or, now known as Gise`le Littman. “In Ye’or’s work,” Bangstad notes, “and in the understandings of her followers, taqiyya is . . . perceived as systematic ‘lies’ or ‘deceptions’ through which Muslims everywhere in the world ‘conceal’ their ‘real’ intentions to establish Islamic dominance over non-Muslim peoples” (2013, 372). Ye’or also popularized the concept of dhimmitude, coined from the word designating protected minorities in the Ottoman Empire but twisted, according to Bangstad, to mean the “obligatory submission [of non-Muslim peoples] by war or surrender to Islamic domination” (Bangstad 2014, 148, quoting Ye’or). For Ye’or and those in this right-wing Islamophobic public, dhimmitude signiﬁes a Muslim threat to the West, one that should be met by an alliance between Jews and Christians in support of Israel. Nussbaum (2012, 20–58) has characterized this as paranoid thinking, which marks much anti-Muslim work, including that of the extremist Americans Pamela Geller and Robert Spencer (from whose provocative book title, Stealth Jihad: How Radical Islam Is Subverting America without Guns or Bombs, the charge against me of “stealth jihad” was lifted).5
I turn now to a second element of these two marginal counterpublics’ online reviews: their very personal and emotional tone. It is not just a matter of lies and truth. On one side was another enthusiastic review on Muslimah Media Watch titled “How ‘Do Muslim Women Need Saving?’ Saved Me.” It was posted by “shireen,” a regular on the blog, who identiﬁed herself as a Canadian soccer-playing mom who wears the hijab. She wrote,
My contribution to this series of reviews is more of an account of the emotional impact of being able to read and apply her work.
When I received my copy, I read it feverishly and quickly. I felt I had to stop myself at times and just exhale. I was drinking her powerful and measured words in too quickly.
It wasn’t simply an intellectual experience of reading a solid piece of work that criticized and called out the disingenuity of a “global industry” that felt the need to save women. It was also a very psycho-emotional experience. Throughout the book, I found myself nodding vigorously as the author brilliantly poked and prodded at those heavy in their disdain and disregard

for accepting Muslim women as individuals as opposed to being a one big sad and repressed group that needs to be spoken for and about. (shireen 2014)
The assaults that popular culture imposes on North American Muslim feminists, and Muslim women across Europe—assaults that have been widely documented and that include not just “representations” but hate crimes, physical attacks, online abuse, and discrimination in the labor market—are palpable in her emotional response: “I had moments of intensity where I was clutching the book tightly because it resonated so deeply. A friend of mine confessed that she sometimes slept with the book” (shireen 2014).
The mirror opposite of these strong emotional responses appears in Bawer’s FrontPage review. Bawer can hardly contain his rage:
This was a tough book to get through. I had to keep putting it down. The world-class dishonesty, the willingness to deny the real suffering of women and girls in order to prop up the poisonous religion that’s responsible for that suffering—and to impugn the motives of noble people who do care—made me livid. (2014)
It is ironic that Muslim feminist bloggers felt so personally comforted by my book while Bawer was so offended on their behalf. In the world of Eurabia and beyond, as Bangstad and others have shown, this advocacy for Muslim women is strongly linked to anti-immigrant political platforms, and Bawer himself worked with a Norwegian secular feminist who established Human Rights Service (HRS), an NGO. Set up to assist immigrant women, HRS has served, Bangstad argues, as a conduit “for the mainstreaming of counterjihadist literature, including works in the Eurabia genre” (2013, 376).
To return to the question of public ethnography, however, I was most struck by the impossibility of there being a place in Bawer’s world for ethnographic work that might complicate understandings. In my book, I invoke the authority and results of long-term ﬁeldwork—the detail of individual stories that cannot be ﬁtted into standard molds, the complex meanings of religious identity and practice, the multiple efforts of feminist and human rights groups as they are caught in broader geopolitical currents, and the complex political economies that shape the local situations of Egyptian or even Afghan women. Yet for Bawer, these merited no mention.
Pulp nonﬁction and the Muslimwoman
Bawer’s review was published in the magazine of the US-based right-wing David Horowitz Freedom Center, whose self-proclaimed mission is “the defense of free societies whose moral, cultural and economic foundations are under attack by enemies both secular and religious, at home

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and abroad.”6 This refers to the Left (exempliﬁed for them by the professoriate) and Islamists. This is the same center that in 2007 published a pamphlet (Spencer and Chesler 2007) in connection with Islamofascism Awareness Week, an initiative to recruit students to attack women’s-studies programs across the United States for being soft on the question of Muslim women. The pamphlet was coauthored by Robert Spencer (“stealth jihad”) and Phyllis Chesler, a retired feminist psychology professor. Titled The Violent Oppression of Women in Islam, the pamphlet offered a mishmash of examples of abuses from all over the world placed side by side with quotes from the Qur’an. The cover image, a stilted black-and-white photomontage, appears to show a veiled woman being buried alive. This pamphlet represents the purest example of the deployment of the “defense” of Muslim women’s rights to bolster denunciations of Islam.
Chesler writes regularly about feminist issues on rightwing blogs and in magazines. She published a memoir just a few months after my book came out with an intriguing title: An American Bride in Kabul (Chesler 2013). In this memoir, Chesler ﬁnally reveals the personal basis for her “authority” to speak on issues of gender in the Muslim world, something that had long puzzled me given that she was a US feminist psychologist, not an expert on the Middle East or the Muslim world. She reveals that she went to Afghanistan in 1961 after marrying at age 19 a fellow student from Bard College. He was a dapper cosmopolitan Afghan elite interested in theater. She went with him, her heart set on exotic adventure. But she was shocked and disappointed, escaping less than six months later and eventually obtaining an annulment.
Fifty years later, she writes this memoir, which opens with the following sensational sentence: “I once lived in a harem in Afghanistan.” The next lines perfectly afﬁrm a stereotype while appearing to negate it:
I came as the young bride of the son of one of the country’s wealthiest men. To my astonishment, I was held captive—but it’s not as if I had been kidnapped by wild savages and ravished. This is not a tale of a white and helpless maiden taken by Barbary pirates and sold into an imperial harem. I was not sold into captivity. I walked into it of my own free will. (Chesler 2013, vii; italics in original)
She even confesses sheepishly that she had uttered the words (the shahada) that converted her to Islam. Why tell us this when she has kept it secret for 50 years? One can only surmise that it is so she can join the ranks of the abused Muslim heroines of popular (as-told-to) memoirs, such as Forced into Marriage and Burned Alive, that one ﬁnds in airport bookstores. Or to stand with the celebrated “ex-Muslims” like Ayaan Hirsi Ali who tell tales of woe to denounce Islam as a barbaric religion. Their works deﬁne and

structure feelings about Muslim women and, as I argue in my book, through this pulp nonﬁction subliminally authorize a moral crusade to save them from Islam (Abu-Lughod 2013, 81–112).
Chesler’s memoir follows the formula of this genre. She reproduces the requisite chapter titles reﬂecting the genre’s narrative convention of going from bondage to freedom: “The Imprisoned Bride,” “Burqas,” “Harem Days,” “Trapped,” “Escape.” To bulk up her barely remembered experience, she interweaves into the narrative a series of 18thand 19th-century European travelers’ accounts, of not only Afghanistan but also Iran, Egypt, and Arabia. For good measure, she sprinkles in some current accounts by wives who have written best-selling accounts of their unfortunate marriages to “Eastern” men. One could hardly ask for a better illustration of what Edward Said (1978) characterized as the citationary nature of Orientalism, in which other texts are more authoritative than the realities.
Here is a typical instance: after saying she is “getting used to spending my days at home,” Chesler writes,
It is impossible for a Westerner to imagine the deadening torpor of a protected life under house arrest. Eventually, one is grateful for the smallest outing outdoors— a lovely picnic in a burqa, being allowed to watch the men and boys ﬂy kites or swim. I am looking at a photograph taken in 1865 that is titled “Sweet Waters of Asia.” (2013, 59)
The connection between 1961 and 1865, and between Kabul and a photograph taken on “the eastern shores of the Bosphorus,” 4,000 kilometers west, is left unexplained.
Chesler spent less than six months in a Kabul that is very different from what exists now. She lived in the wealthy gated household of the head of a major bank with chauffeurs and servants. She was surprised that her sister-inlaw met her at the airport in the latest Western fashions and high heels. She struggles hard to make her story ﬁt the script. Until her ﬁnal days there, her greatest abuse seems to be her self-starvation, caused by her mother-in-law who refused to make special foods cooked in imported Crisco rather than the native ghee. She also blames her motherin-law for her dysentery and hepatitis—the result of a nefarious anti-Semitic plot to leave the vegetables unwashed. She has no memory of marital rape but says she ﬁnds mention of it in her diary. She chafes under restrictions of “house arrest” and bemoans the fate of women she sees wearing burqas, which she describes as “body bags” and “sensory deprivation chambers.”
Her lack of desire to understand the new social world she has entered might be excused in a 19-year-old girl from Brooklyn. It is harder to explain why in the intervening 50 years as a scholar she has not availed herself of the rich scholarship by anthropologists and historians of the region,

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scholarship that would have provided insight into the complex gendered world she had entered. Instead, she describes this world as one of “gender apartheid” and writes pamphlets like The Violent Oppression of Women in Islam.
One can read this memoir of Afghanistan not as what she claims it is—a reckoning with herself—but as a lure. Chesler wants new audiences for the second half of the book, in which she rehashes hundreds of articles she has posted on right-wing blogs and magazines over the last two decades, many on her pet theme of the honor crime. Here also one ﬁnds the familiar tirades against gender apartheid, “anti-Semitic Palestinian-loving Muslims who are seeking to destroy Israel,” and “Sharia law”—the subject of fear mongering by US politicians in ignorance of the meanings of legal reasoning and argument in Muslim societies, as studied by anthropologists like Brinkley Messick (1996, forthcoming).7
Serious engagement and that awkward relationship
Chesler’s extremist positions bring to the fore a tension that exists in more genuine forms within the larger feminist community. Anthropologists who are careful ethnographers of women and gender must confront real dilemmas, beyond the mendacity of Islamophobes who have seized on “the woman question” to further their cause. Women’s rights and issues like gender-based violence should concern everyone, and the important work that activists and practitioners in Egypt, Palestine, Lebanon, Morocco, Pakistan, Bangladesh, Indonesia, or elsewhere in “the Muslim world” are doing is to be respected. This is why I had such feminists in mind as interlocutors and publics. But as an anthropologist, I also included them as subjects of some modest ethnography on what I called “the social life of Muslim women’s rights,” because it is important to understand how problems of women get framed in international discourses and institutions and how activists in particular regions work.
The most serious public to respond in a timely way to Do Muslim Women Need Saving? consisted of committed feminist scholars, writers, and activists, most of whom work in and on the Muslim world. Their responses were different from those of the grateful writers of Muslimah Media Watch. The views that appeared in more academic venues reveal the uneasy relationships between anthropology and transnational feminist scholarship and activism. Yet it is in such adjacent and allied ﬁelds, I believe, that ethnography has the best chance of affecting the terms of political and public debate. It is this audience that is most genuinely concerned about the issues I tackle in the book, and they may be most open to what an anthropologist can offer, since understanding the complex forces that shape the social world matters to projects of social transformation and gender justice. As far as the Muslimwoman is concerned, it is clear that

all of us are hamstrung by this ﬁgure’s entanglement with geopolitical forces and organized Islamophobia.
The most thoughtful challenges to Do Muslim Women Need Saving? came in an academic review symposium on it published in Ethnicities. The three invited reviewers who responded, all Europe-based feminist scholars who work on and in different Muslim communities in Europe and abroad, raised signiﬁcant ethical-political questions about the stance of the book. The most consistent concern was how much support my book offered for what Deniz Kandiyoti (2015) called “internal critiques.” By this she meant critiques by feminists who challenge the patriarchal injustices in their own societies, working to reform law, change canons, and criticize conservative social practices, cultural ideologies, and interpretations of religion. Taking a different approach, the other two reviewers asked how much room I give to “authentic critical voices” (Malik 2015, 765) as opposed to those simply playing to Western audiences and riding the wave of Islamophobia to promote themselves, as do the well-known “native informants” (Dabashi 2006; Mahmood 2008). One of the reviewers, Maleiha Malik, rightly insisted that one must ﬁnd ways to “safeguard space for legitimate critiques” (2015, 766). The other, Schirin Amir-Moazami (2015), alarmed by antiimmigrant discourse in Germany and France, puzzled over what to do about the fact that only certain feminist voices— those that blame Islam for misogyny in Muslim cultures— get authorized in the mainstream public spheres in Europe and the United States.
Given the widespread ignorance about and deliberate prejudice against Muslims, it is important to highlight the diversity of women and the existence of feminists within such communities. To counter the discourse of white women saving brown women from brown men, to adapt Gayatri Spivak’s (1988) famous formulation, I regularly teach about the long local histories of women’s movements and activism (however blurry we know the boundaries to be between local and transnational, inside and outside). There is ﬁne scholarly literature on this subject by now (e.g., Abu-Lughod 1998; Al-Ali 2000, 2007; Booth 2001; Chowdhury 2011; Rinaldo 2013; Salime 2011; Shehabuddin 2011). Most intriguing are the movements that emerged in the ﬁrst decade of the 21st century that could be labeled Islamic feminist. I examined two groups from this movement, Musawah (which means “Equality”) and the Women’s Initiative for Spirituality and Equality (WISE), which deﬁne themselves as global and work for reform and rights from within the religious tradition. There are others. These surely count among the “authentic internal critics,” alongside a range of others like the Marxist and secular liberal feminist activists and even the Islamist women who work from within political parties or movements to push for reforms and women’s leadership (e.g., Deeb 2006; Jad 2005; McLarney 2015; Salime 2011; Yafout 2015).

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Yet because my touchstones are the rural communities where I have done ethnographic research and because the subjects of my ethnography are ordinary women living in Egypt who have had almost no contact with activists, my perspective on feminists is somewhat at odds with the feminists’ self-images. Like all rights-based feminist projects that refer to the key international instrument of women’s rights, the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the arguments of the Islamic feminists align with liberal frameworks and forms of argument whose purchase and social base are not yet clear in the regions where they seek to work. This may be the only effective path open for change, but the circumstances must be noted. My ethnographic work among the Awlad ‘Ali Bedouin over the past couple of decades has shown that there is internal debate about new restrictions on women’s movements, wedding practices, and even mourning (Abu-Lughod 1993, 1997, 2013) because of the inﬂuence of conservative Gulf-inﬂuenced Bedouin families. But the alternative is not “freedom” or gender equality. In Upper Egypt, women counter and resist many aspects of gendered power, “traditional” and new, but usually by invoking their rights under Islam. Ethnographic vignettes show the impossibility of disentangling individual women’s problems from the global economic policies that impoverish them, the national policies that render their families vulnerable, the class politics that deprive them of dignity, and the military interventions that undermine their security. I argued that feminist activists should take these into account.
The engaged ﬁelds of feminist scholarship and activism do not sit easily with anthropology because of the different social locations from which women’s lives are being assessed and gender politics analyzed. The differences between the ways NGOs and development and empowerment projects “give voice” to the women they are helping and the way anthropologists represent subaltern women have been the subject of critical writing (e.g., Sangtin Writers and Nagar 2006). Yet little ethnographic work has been conducted on women’s-rights projects themselves or on the encounters between feminist activists or NGO workers and the less educated and the often nonactivist women for whom they advocate. I examine some of the organizations that feminists in and from the regions have founded, some of the causes they have taken up, and some of the languages of justice they have mobilized (Ferguson 2015; Salime 2015), following paths opened up by other anthropologists, in particular Sally Engle Merry (2006).
As an ethnographer who has worked in rural areas with women who are not urban professionals or well educated and who are mostly poor, I view feminist activists with a double consciousness: they are both respected peers and colleagues working in adjacent ﬁelds and, when seen

through the eyes of the less educated and privileged women I have come to know in Egyptian villages and desert areas, urban elites who do not share the desires and values of many of those on whose behalf they work. One can no more brush aside the internal class politics of feminist activism in these parts of the world as the imperial politics of a US State Department liberal global feminism that needs the ﬁgure of the oppressed Muslimwoman.
Articulating differences among forms of feminist critique is analytically and politically fraught. On the one hand, the tensions I experience bridging these worlds are not unfamiliar to anthropologists who have worked on human rights. Unlike critical political theorists who boldly link human rights and humanitarianism to colonialism or who interrogate the paradoxes of rights, legalism, or universalism that lie at the heart of liberalism, anthropologists proceed ethnographically, studying the workings of rights claims and practices on the ground. On the basis of ethnographic work, anthropologists have criticized the binds into which indigenous people are placed by the demands of liberal multiculturalism and recognition (Povinelli 2002; Simpson 2014) and the ways human rights work promotes social distinction, opens career paths, and depoliticizes suffering in a world of transnational governance and neoliberal governmentality (e.g., Allen 2013; Englund 2006; Jackson 2005). Although anthropologists have worked as legal advocates and rights activists, there is still debate about how appropriate this kind of direct engagement is (e.g., Cowan, Dembour, and Wilson 2001; Goodale 2009).
On the other hand, work on women’s rights is burdened by the special history of colonial feminism, and it is particularly fractious in the parts of the world on which I work because of the twin pressures of religious revival and Islamophobia.8 I used my ethnographic work in one Egyptian village to explore the incommensurability between everyday lives and the social imagination of rights, whether by outsiders, veterans of women’s activism in the region, or the cosmopolitan Islamic feminists who are doing creative new work. Such organizations are conceived and run by educated urban women who, in this age of NGOization (Grewal and Bernal 2014; Sangtin Writers and Nagar 2006; Shehabuddin 2008), spend their time studying, drafting position statements, applying for funds, and generally seeking legal reform and cultural change along tracks that might work. I was interested in how these organizations relate to those on whose behalf they work. Although my “thick” ethnography in the Egyptian village was unmatched by my ethnography of activists, I observed that even though activist projects mobilize genuinely concerned, smart, creative, committed, and often quite learned individuals, such rights work intersects with global institutional politics and class inequalities.
The public responses from some feminist scholaractivist colleagues in or of the Arab and wider Muslim

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world have made me more conscious of the costs of uneven ethnographic efforts. Given the hostility and suspicion toward feminist projects and the dedication they require— aspects of such projects that I emphasized strongly in my analysis of the work of Palestinian women activists— it would have been useful to have produced more relational ethnographic work on projects of women’s development, empowerment, and rights. Ethnography of feminist activists, experts, and organizations would not necessarily have changed my analysis but would have grounded and nuanced my analysis of their contexts. The value of this approach is clear from some pioneering ethnographic work on feminists (Ali 2015; Hodgson 2002, 2003, 2011; Merry 2006; Sukarieh 2015; Sweis 2012; Walley, n.d.).
The hesitation in my support for authentic internal critics is a result of the combination of my ﬁeldwork experiences with rural women in Egypt and my primary location in the United States, where discourses about Islam and the Middle East and the devastating policies they underwrite appear particularly dangerous. To confront simplistic or tendentious discourses about how Islam is to blame for women’s oppression, I opened Do Muslim Women Need Saving? with a vignette of a woman friend in the Egyptian village where I had worked for 20 years. It was the eve of the revolution of January 25, 2011, though we didn’t know it. I described her shock when I explained that many people in the West blame Islam for women’s oppression. She insisted, to the contrary, that her problems were the fault of the government. She complained about the arbitrary powers of the security forces, a lack of concern for the poor, corruption, and gross inequalities. From my ethnographic work, I also shared stories about women who fought for their inheritances against their brothers, wielding the Qur’an and enjoying the full support of elders and religious authorities. I presented the troubling case of a young woman who was subjected to the violence of a husband, noting that he was condemned by the whole community as a bad Muslim.
When ﬁgures like Bawer or Chesler, who claim to care about women, lay abuses and suffering at the feet of the Qu’ran, a “poisonous” religion, or “honor cultures,” anthropologists like me, who work with more complex theories of culture and culture making and have intimate knowledge of diverse women’s lives, feel they must react. Just after my book was published, I came across new evidence of the insidious deployment of culturalist arguments: a media blitz for a documentary called Honor Diaries. Associated with Ayaan Hirsi Ali’s foundation, it was funded by the Clarion Fund, the same shadowy foundation that produced Obsession, a notorious Islamophobic ﬁlm that was distributed free in hundreds of thousands of newspapers in swing states during a US presidential election to undermine Barack Obama by tarring him as a Muslim (Saylor 2014). Key players in this campaign are Israeli.

The motto of the campaign is “Culture is no excuse for abuse.” Yet it is Honor Diaries that is “blaming culture for bad behavior” (Volpp 2000). The ﬁlm and campaign frame violence against women as happening only in Muslim or brown communities and as only being related to their culture—not to structural violence, global economic depredations, political contestations, or war, to name a few other obvious sources.9 My book traces the way tropes of cultural harm have functioned to stigmatize religious communities, ethnic groups, and social classes, following a path blazed by feminist scholars like Uma Narayan (1997), who, for example, coined the phrase “death by culture” to describe the way dowry deaths in India are (mis)framed. Being forced into this reactive stance by the wider context of Islamophobia may have discouraged me from fully investigating or focusing on the conservative uses of Islam by political groups seeking to undermine women’s rights and lives, something apparent across the Middle East and elsewhere; these are precisely the targets of so much “internal” feminist criticism, and for good reason.
Instrumentalizing ethnography?
In their review of the anthropology of human rights, Iris Jean-Klein and Annelise Riles argue that anthropologists should do ethnography in the world of rights since this is the only form of engagement the profession is “uniquely qualiﬁed to administer” (2005, 174–75). They suggest that our self-disciplined ethnography should be oriented to anthropological knowledge production. In contrast, Fassin makes a case for a critical and public ethnography that moves beyond the discipline, because the ethnographer plays a special role as a “presence both involved and detached, inscribed in the instant and over time, allowing precise descriptions and multiple perspectives, thus providing a distinctive understanding of the world that deserves to be shared” (2013, 642). This is especially relevant, he continues, in “understudied regions of society, but can be signiﬁcant also in spaces saturated by consensual meanings: in the ﬁrst case, it illuminates the unknown; in the second, it interrogates the obvious” (642). My ethnography of some Muslim women is a case of the latter: it interrogates the obvious in a space saturated by the consensual meanings that I have called common sense.10
Yet making ethnography more public and using it strategically to contribute to political debates intensiﬁes the troubling ethical questions that anthropologists have always taken seriously. As someone with long-term relationships with speciﬁc communities in what could be construed as “the Muslim world,” I have worried about exposing particular people’s everyday and intimate lives to broader publics beyond the academy and for purposes beyond “anthropological knowledge production.” To challenge the public discourse about the Muslimwoman—and

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by implication, the Muslimman, as Shenila Khoja-Moolji (2015) suggests—am I then instrumentalizing ethnography?
In the afterword to the 30th-anniversary edition of my ﬁrst ethnography, Veiled Sentiments (Abu-Lughod 2016), I reﬂect on the responsibilities we have to those who have become part of our lives through ﬁeldwork. I have known people in this small Bedouin community over 35 years. I have watched children grow up and marry, lost beloved friends to illness and death, and become over time more uncertain about anthropology’s higher purpose. In the early 1990s, I had written a second ethnography of this community of Awlad ‘Ali Bedouins, Writing Women’s Worlds (Abu-Lughod 1993), because I felt that Veiled Sentiments had failed to capture the spirited and textured ways women lived, argued, and thought in this community. I used intimate stories of the everyday to undermine generalizations about such classic themes for the region as systems of kinship and the honor code. I placed people and their stories in particular circumstances. This “ethnography of the particular,” as I called it, was meant to disrupt presumptions of the homogeneity of cultures and to confront commonplaces of both anthropology and feminist studies.
I had misgivings about this project at the time.11 I likened my ethnographic storytelling to candid photographs; I knew that my Bedouin friends preferred formal posed portraits. Later, when Veiled Sentiments was translated to Arabic (Abu-Lughod 1995), something I eagerly welcomed, I worried that the theoretical arguments about the complexity of culture and moral systems might be lost on those unfamiliar with the ways anthropologists write. The stories of love, betrayal, and loss that I had bent to this higher purpose of social and cultural analysis and to the task of “humanizing” an Arab community to outsiders (something they would be surprised to learn was needed) might just seem indiscreet. The disclosures were for me at least partially redeemed by the justice I had done to the proud ways my friends lived. I attempted to show the richness, intensity, and complexity of their social and imaginative worlds. I recorded for posterity poetic traditions that were being lost. The fact that so many colleagues continue to teach the ethnographies suggests that they do offer something important. I like to think that these ethnographies make it possible for readers to have at least a few Muslim women populating their imaginations when they run across the manufactured stereotypes of the Muslimwoman.
Questions about the ethics of revealing people’s lives to the public are even more pertinent for the more confrontational and readable Do Muslim Women Need Saving? Anthropologists’ methods produce a unique kind of knowledge and produce knowledge in a unique way. What happens when this knowledge is opened to the scrutiny of the ignorant and the hostile, not just the serious or curious? Anthropologists who work with women and on gender

politics in the Middle East and the Muslim world would like to share Fassin’s measured conﬁdence that “a conversation between the ethnographer and his or her publics generates a circulation of knowledge, reﬂection, and action likely to contribute to a transformation of the way the world is represented and experienced” (2013, 628). Yet we feel exhausted, overwhelmed by the hold of the cultural common sense and daunted by the structures that keep it in place, from well-meaning liberalism to Orientalism, from well-funded Islamophobia and the associated terror-expertise industry to US and Israeli geopolitical interests and media collusion. Those of us who work in these regions sometimes resent the responsibility we feel to always use what we have learned to speak back to negative or ignorant views held by Western publics, including feminists, or even local elites who sometimes share their views about the cultural backwardness or “excessive” religiosity of less privileged compatriots. This limits our foci and constrains what we can say.
Fassin concludes his defense of public ethnography by noting that “we owe in priority those with whom we worked and those primarily concerned by the issues on which we conduct our work” (2013, 640). But how does making public our ethnography repay those with whom we have worked? Anthropologists have always worried about the consequences of disclosing what we have learned as ethnographers about communities we have come to care about. We now live in a world where borders are regularly breached with social media and travel, where we cannot control who will read or see or hear what we have made public, where what we have presented in good faith may be redeployed in the service of different projects, and where those who have trusted us enough to let us into their lives might be made vulnerable or somehow compromised by what we reveal.
In this context, Audra Simpson’s (2014, 95–115) advocacy of “ethnographic refusal” is compelling. Writing about the Mohawk community of which she is a part, Simpson developed this stance in light of the history of anthropology’s complicity in undermining the sovereignty of the native peoples who were, after all, its original objects of study. She advocates “ethnographic refusal” as a protective move against the ongoing dispossessions of settler states that use their knowledge about native communities to discipline or undermine them. Similar dilemmas arise when we become aware of how signiﬁcant the Muslimwoman is to the geopolitics of empire, the war on terror, and, increasingly, the xenophobic nationalist politics around immigrants and refugees in Europe (Ticktin 2011).
How can we decide whether it is “public ethnography” or “ethnographic refusal” that would best repay the debts we incur to those who have shared their lives with us? This must be answered case by case. The conversation in which I seek to intervene with my ethnography of women and gender is not one that the women about whom I am

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writing are directly concerned. They would be surprised to discover how they are represented. But their lives and possibilities are deeply affected by the events and formations to which representations of the Muslimwoman are connected as product, justiﬁcation, or affective ground for intervention. Given this context, if ethnography can make available alternative accounts of lives and communities that can then authorize and give substance to those forces seeking to challenge the standard views and policies, it is valuable. In the case of the Muslimwoman, ethnographies by feminist anthropologists have indeed populated the public imagination with women who disrupt the common sense manufactured for purposes that contribute to harming these women and their communities. For example, ethnographies such as Saba Mahmood’s (2004) and Sherine Hafez’s (2011) on women in the Islamic revival in Egypt, Lara Deeb’s (2006) on Shi’ia Muslim women associated with Hizbullah in Lebanon, and Nadia Guessous’s (n.d.) on the aversions of secular Moroccan feminists to the veil—to name just a few on the Arab world—encourage skepticism about taken-forgranted values of liberation or secularism.
Given the deadly repetitions of the public discourses on the Muslimwoman and the kinds of cross-publics that I discovered coalescing around my book, the alternatives we can offer are crucial. If our ethnographies can generate debate and lead to serious conversation about life-and-death political issues, this may change attitudes and eventually policy. The article (Abu-Lughod 2002) that led to my book is routinely one of the “most downloaded” articles from American Anthropologist. It rivals Horace Miner’s (1956) satirical classic “Body Ritual among the Nacirema” assigned by teachers to force students to question their smug assumptions about who is a “primitive Other.” Like the multiple reprints and translations in anthropology and women’s studies textbooks and readers, the downloads suggest that my counterhegemonic arguments resonate with colleagues. This work articulates, with ethnographic support, views that thoughtful people already have developed about the dangerous ways that representations of Muslim women are deployed politically.
This kind of work is therefore useful for opening conversations in the classroom and beyond. The effects of such conversations are not easy to measure. Some will be led to explore other ethnographic work on women and gender politics in the Middle East, South and Southeast Asia, Africa, and in immigrant communities in Europe, Australia, and North America. Some will be led to inform themselves better about interconnected global histories, rejecting the binary divisions between East and West. Some will reexamine assumptions and prejudices. At the least, such ethnographic work changes the parameters of public discourse.12 My hope is that this will in turn affect global politics. In that case, public ethnography could be instrumental in repaying some of our debts to those with whom we have worked.

Notes
Acknowledgments. I am grateful for the incisive comments of three anonymous reviewers and AE’s editor, Niko Besnier. They suggested excellent ways to strengthen this essay. I also have beneﬁted from audience questions and suggestions at the universities, including my own, where I presented earlier versions. I am especially grateful for the invitation to deliver the 2014 Maryse and Ramzy Mikhail Memorial Lecture at the University of Toledo, where I ﬁrst began to think about these issues.
1. For the video interview, see John Williams, “The Read Aloud: Video of Lila Abu-Lughod,” New York Times website, December 23, 2013, accessed March 15, 2016, http://artsbeat .blogs.nytimes.com/2013/12/23/the-read-around-video-of-lilaabu-lughod/? r=0Links.
For the book review, see Tyler Cowen, “A One-Sentence Book Review,” New York Times Magazine, February 23, 2014, accessed March 15, 2016, http://www.nytimes.com/interactive/ 2014/02/23/magazine/23-one-page-magazine.html? r=1.
2. “About MMW,” Muslimah Media Watch, accessed July 20, 2016, http://www.muslimahmediawatch.org/about-2/.
3. “Fjordman” made his identity public after the shootings (Bangstad 2014, 80).
4. The comments appeared on Bawer’s (2014) review but have been removed as of July 23, 2016.
5. Nussbaum explicitly links it to the type of anti-Semitism represented in an earlier era and associated with The Protocols of the Elders of Zion. The connections between Islamophobia and antiSemitism have been explored by anthropologists, including Ruth Mandel (2008) and Katherine Ewing (2008), and by others, including those analyzing cartoons (Gottschalk and Greenberg 2008).
6. Website of the David Horowitz Freedom Center, accessed July 23, 2016, http://www.horowitzfreedomcenter.org.
7. Chesler’s accusations on a right-wing news blog the following year expand on these ideas about anti-Israel feeling. In an article (Chesler 2014) about the 2014 National Women’s Studies Association Conference, where Boycott, Divestment, and Sanctions were to be discussed, she charges activists with “hijacking feminism to attack Israel” and laments that this was “only the latest, among many other examples, of the way in which Women’s Studies— an idea which I pioneered so long ago—has been Stalinized and Palestinianized.”
8. Juliane Hammer argues that “a thorough analysis of gendered Islamophobia needs to take into consideration the problem of delineating the boundaries of what is identiﬁed as Islamophobia as opposed to critical feminist discourse, secular critique, and intraMuslim reform” (2013, 110).
9. The sensationalism is patent from the graphic photos that accompany their e-mails to the promotional announcements with headings like “STATUS UPDATE: MURDERED,” “Female Genital Mutilation: In America?,” “What If You Were Forced to Marry?,” and “Don’t Let ‘Intersectionality’ Stop You from Being a Feminist.”
10. It is telling that, according to Deeb and Winegar (2012, 542), about 40 percent of recent work in the anthropology of the Arab world focuses on gender. The statistic is positive in indicating that anthropologists continue to struggle against stereotypes with careful ethnographic work and that there is increasing acceptance of feminist anthropology in the discipline. The negative interpretation is that anthropologists may be inadvertently contributing to the impression of a unique pathology around gender and sexuality in the region. My own earlier review essay had labeled the strong focus on women as “harem theory” (Abu-Lughod 1989); since then, work has expanded the focus to gender and includes ethnographic work on masculinities and sexuality.

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11. My misgivings are different from those expressed by Webb Keane (2003) about that project (Abu-Lughod 1991). Despite generously placing my arguments about “ethnography of the particular” in a genealogy that includes Franz Boas and Clifford Geertz, he missed the points I later made in the introduction to my book about the feminist critiques of the power (some say masculine) of using abstract theoretical language and about my own orientation toward confronting problems of hostile representations of distant communities, for which “ethnography of the particular” and “writing against culture” were tactical. He misrepresents my focus on particular individuals as reﬂecting ontology and arising from my simple valorization of the individual and agency when again I intended these as tactics to confront powerful forms of generalization about communities in the Middle East.
12. Mayssoun Sukarieh and Stuart Tannock (2013) forcefully question the ethics of researching vulnerable communities. They argue that the “overresearched” Palestinians who live in the conveniently located refugee camp of Shatila feel they get no direct beneﬁt from the researchers keen to give voice to Palestinians. But when a Guardian columnist (Bunting 2016), again, in the United Kingdom, discusses colonial feminism in the context of David Cameron’s announcement of a program to teach English to Muslim women in Britain (as antiradicalization and under threat of deportation) and suggests that Do Muslim Women Need Saving? should be required reading for the then British prime minister, we can see how public ethnography might be useful for those advocating changing attitudes and even policies.
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Lila Abu-Lughod Department of Anthropology Columbia University 452 Schermerhorn Extension New York, NY 10027
la310@columbia.edu

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE (“ACRL”), et al.,

Plaintiffs,

v.
DONALD TRUMP, President of the United States, et al.,

Case No. 17-cv-10310 Hon.: Victoria A. Roberts Mag.: Stephanie D. Davis

Defendants.

BRIEF OF AMICI CURIAE THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY, JAY HIRABAYASHI, HOLLY YASUI, KAREN KOREMATSU, CIVIL RIGHTS ORGANIZATIONS, AND NATIONAL AND MICHIGAN BAR ASSOCIATIONS OF COLOR IN SUPPORT OF
PLAINTIFFS

GOODMAN & HURWITZ PC William H. Goodman 1394 East Jefferson Avenue Detroit, Michigan 48207 Telephone: (313) 567-6170 Facsimile: (313) 567-4827 Bgoodman@goodmanhurwitz.com

AKIN GUMP STRAUSS HAUER & FELD LLP
Robert A. Johnson One Bryant Park New York, NY 10036 Telephone: (212) 872-1000 Facsimile: (212) 872-1002 Email: rajohnson@akingump.com

Attorneys for Amici Curiae (Counsel continued on next page)

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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 Email: changro@seattle.edu

AKIN GUMP STRAUSS HAUER & FELD LLP
Pratik A. Shah Martine E. Cicconi* Robert S. Strauss Building 1333 New Hampshire Ave., N.W. Washington, D.C., 20036 Telephone: (202) 887-4000 Facsimile: (202) 887-4288 Email: pshah@akingump.com
* Licensed to practice in California only and under the direct supervision of a partner of Akin Gump Strauss Hauer & Feld LLP who is an enrolled, active member of the District of Columbia Bar; applicant for admission to the D.C. Bar.
Jessica M. Weisel 1999 Avenue of the Stars, Suite 600 Los Angeles, CA 90067 Telephone: (310) 229-1000 Facsimile: (310) 229-1001 Email: jweisel@akingump.com
Elizabeth C. Rosen Daniella Roseman One Bryant Park New York, NY 10036 Telephone: (212) 872-1000 Facsimile: (212) 872-1002 Email: erosen@akingump.com

Of Counsel for Amici Curiae

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CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Civil Procedure 7.1, undersigned counsel for amici make the following disclosures: The Fred T. Korematsu Center for Law and Equality (“Korematsu Center”) is a research and advocacy organization based at Seattle University, a non-profit educational institution under Section 501(c)(3) of the Internal Revenue Code. The Korematsu Center does not have any parent corporation or issue stock and consequently there exists no publicly held corporation which owns 10 percent or more of its stock. Asian Americans Advancing Justice, the Asian American Legal Defense and Education Fund, the Hispanic National Bar Association, LatinoJustice PRLDEF, Inc., the National Asian Pacific American Bar Association, the Michigan Asian Pacific American Bar Association, the National Bar Association, and the South Asian Bar Association of North America are not-for-profit organizations with no parents, subsidiaries, or affiliates.
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TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ....................................................... I INTEREST OF AMICI CURIAE .............................................................................1 INTRODUCTION AND SUMMARY OF ARGUMENT ......................................6 ARGUMENT .........................................................................................................10
I. THE “PLENARY POWER” DOCTRINE ORIGINATED FROM RACIST NOTIONS THAT COURTS NOW REJECT. ......10
II. KOREMATSU STANDS AS A STARK REMINDER OF THE NEED FOR VIGILANT JUDICIAL REVIEW OF GOVERNMENTAL ACTION TARGETING DISFAVORED GROUPS IN THE NAME OF NATIONAL SECURITY................17
CONCLUSION ......................................................................................................22
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TABLE OF AUTHORITIES
Cases:
Chae Chan Ping v. United States, 130 U.S. 581 (1889)............................................................................7, 10, 11, 12
Fong Yue Ting v. United States, 149 U.S. 698 (1893)................................................................................11, 12, 13
Harisiades v. Shaughnessy, 342 U.S. 580 (1952)............................................................................................13
Hirabayashi v. United States, 320 U.S. 81 (1943)..........................................................................................1, 18 828 F.2d 591 (9th Cir. 1987) ..............................................................................20
Kerry v. Din, 135 S. Ct. 2128 (2015)..................................................................................15, 16
Kleindienst v. Mandel, 408 U.S. 753 (1972)......................................................................................15, 16
Korematsu v. United States, 323 U.S. 214 (1944)..............................................................................1, 9, 18, 19 584 F. Supp. 1406 (N.D. Cal. 1984).............................................................10, 20
Landon v. Plasencia, 459 U.S. 21 (1982)..............................................................................................14
Reno v. Flores, 507 U.S. 292 (1993)............................................................................................14
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)......................................................................................13, 14
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) .....................................................................passim
Yasui v. United States, 320 U.S. 115 (1943)........................................................................................1, 18 772 F.2d 1496 (9th Cir. 1985) ............................................................................20
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Zadvydas v. Davis, 533 U.S. 678 (2001)......................................................................................14, 15
Other Authorities: Breyer, Stephen, The Court and the World (2015) .................................................21 Executive Order No. 13780, “Protecting the Nation from Foreign
Terrorist Entry into the United States,” 82 Fed. Reg. 13209 (Mar. 6, 2017) .................................................................................................................6 Executive Order No. 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States,” 82 Fed. Reg. 8977 (Jan. 27, 2017) .....................................................................................................................6 Executive Order No. 9066, “Authorizing the Secretary of War to Prescribe Military Areas,” 7 Fed. Reg. 1407 (Feb. 19, 1942)............................18 Greene, Jamal, The Anticanon, 125 Harv. L. Rev. 379 (2011) ...............................21 Katyal, Neal K., The Solicitor General and Confession of Error, 81 Fordham L. Rev. 3027 (2012-2013) ...................................................................20 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)........................21 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) .....................................................11 U.S. Dep’t of Justice, Confession of Error: The Solicitor General’s Mistakes During the Japanese-American Internment Cases (May 20, 2011) .............................................................................................................20 Yamamoto, Erik K., et al., Race Rights and Reparations: Law and the Japanese Internment (2013) ................................................................................21
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INTEREST OF AMICI CURIAE The Fred T. Korematsu Center for Law and Equality (“Korematsu Center”) is a non-profit organization based at the Seattle University School of Law. The Korematsu Center works to advance justice through research, advocacy, and education. Inspired by the legacy of Fred Korematsu, who defied military orders during World War II that ultimately led to the unlawful incarceration of 110,000 Japanese Americans, the Korematsu Center works to advance social justice for all. The Korematsu Center does not, in this brief or otherwise, represent the official views of Seattle University. The Korematsu Center has a special interest in addressing government action targeted at classes of persons based on race, nationality, or religion. Drawing on its experience and expertise, the Korematsu Center seeks to ensure that courts understand the historical—and, at times, profoundly unjust—underpinnings of arguments asserted to support the exercise of such unchecked executive power. Jay Hirabayashi, Holly Yasui, and Karen Korematsu are children of three Japanese Americans who challenged the government’s racial curfew and detention programs in the United States Supreme Court during World War II: Gordon Hirabayashi (see Hirabayashi v. United States, 320 U.S. 81 (1943)); Minoru Yasui (see Yasui v. United States, 320 U.S. 115 (1943)); and Fred Korematsu (see Korematsu v. United States, 323 U.S. 214 (1944)). Their interest is in reminding
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this court of the legacy those judicial decisions had on their generation and will have on future generations, and the impact of judicial decisions that fail to protect men, women, and children belonging to disfavored groups in the name of national security. Guilt, loyalty, and threat are individual attributes. When these attributes are imputed to racial, religious, or national origin groups, courts play a crucial role in ensuring that there is a legitimate basis. Disaster has occurred when courts have refused to play this role.
During World War II, Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu stood largely alone. Here, their children are gratified to have such a broad coalition standing with them, and together, standing with those communities and individuals most directly harmed by the Executive Order.
Asian Americans Advancing Justice (“Advancing Justice”) is 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 the federal courts. Through direct services, impact litigation, policy advocacy, leadership development, and capacity building, the Advancing Justice affiliates advocate for marginalized members of the Asian American, Native
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Hawaiian, Pacific Islander and other underserved communities, including immigrant members of those communities.
The Asian American Legal Defense and Education Fund (“AALDEF”), founded in 1974, is a national organization that protects and promotes the civil rights of Asian Americans. By combining litigation, advocacy, education, and organizing, AALDEF works with Asian American communities across the country to secure human rights for all. The President’s Executive Order, which would curtail the rights of immigrants to be free from discrimination because of their national origin, raises issues central to AALDEF’s mission. In 1982, AALDEF testified before the U.S. Commission on Wartime Relocation and Internment of Civilians, in support of reparations for Japanese Americans forcibly relocated and imprisoned in camps during World War II. After 9/11, AALDEF represented more than 800 individuals from Muslim-majority countries who were called in to report to immigration authorities under the Special Registration (“NSEERS”) program. AALDEF is currently providing community education and legal counseling to Asian Americans affected by the challenged Executive Order.
The Hispanic National Bar Association (“HNBA”) is comprised of thousands of Latino lawyers, law professors, law students, legal professionals, state and federal judges, legislators, and bar affiliates across the country. The HNBA supports Hispanic legal professionals and is committed to advocacy on issues of
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importance to the 53 million people of Hispanic heritage living in the United States. The HNBA regularly participates as amicus curiae in cases concerning immigration and the protection of refugees.
LatinoJustice PRLDEF, Inc. (“LatinoJustice”) is a national not-for-profit civil rights legal defense fund that has defended the constitutional rights and equal protection of all Latinos under the law. LatinoJustice’s continuing mission is to promote the civic participation of the greater pan-Latino community in the United States, to cultivate Latino community leaders, and to engage in and support law reform litigation across the country addressing criminal justice, education, employment, fair housing, immigrants’ rights, language rights, redistricting, and voting rights. During its 45-year history, LatinoJustice has litigated numerous cases in both state and federal courts challenging multiple forms of racial discrimination by government actors including law enforcement practices that illegally target racial groups based upon their race, national origin and immigration status.
The National Asian Pacific American Bar Association (“NAPABA”) is the national association of Asian Pacific American attorneys, judges, law professors, and law students, representing the interests of over seventy-five state and local Asian Pacific American bar associations—including the Michigan Asian Pacific American Bar Association (“MAPABA”)—and nearly 50,000 attorneys who work
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in solo practices, large firms, corporations, legal services organizations, nonprofit organizations, law schools, and government agencies. Since its inception in 1988, NAPABA has served as the national voice for Asian Pacific Americans in the legal profession and has promoted justice, equity, and opportunity for Asian Pacific Americans. In furtherance of their missions, NAPABA and MAPABA oppose discrimination, including on the basis of race, religion, and national origin, and promote the equitable treatment of all under the law.
The National Bar Association (“NBA”) is the largest and oldest association of predominantly African-American attorneys and judges in the United States. The NBA was founded in 1925 when there were only 1,000 African-American attorneys in the entire country and when other national bar associations, such as the American Bar Association, did not admit African-American attorneys. Throughout its history, the NBA consistently has advocated on behalf of African Americans and other minority populations regarding issues affecting the legal profession. The NBA represents approximately 66,000 lawyers, judges, law professors, and law students, and it has over eighty affiliate chapters throughout the world.
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
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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 that have been and will be affected by the Executive Order.1
INTRODUCTION AND SUMMARY OF ARGUMENT History has taught us the risk of everlasting stains to this Nation’s constitutional fabric when the judiciary turns a blind eye to broad-scale governmental actions targeting particular racial, ethnic, or religious groups. In light of that history, this court must not abdicate its constitutional duty to critically review Executive Order No. 13780, “Protecting the Nation from Foreign Terrorist Entry into the United States,” 82 Fed. Reg. 13209 (Mar. 6, 2017) (“Executive Order”). The Executive Order replaces Executive Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017), which was enjoined by several courts, including the Western District of Washington in an order affirmed by the Ninth Circuit. See Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017). The full Ninth Circuit declined to review that decision en banc. See Order Denying Rehearing En Banc, State of Wash. v.
1 Amici hereby certify that no party’s counsel authored the brief in whole or in part, no party or party’s counsel contributed money intended to fund preparation or submission of this brief, and no person other than amici and their counsel contributed money intended to fund preparation or submission of the brief. The parties have consented to the filing of this brief.
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Trump, No. 17-35105 (9th Cir. Mar. 15, 2017) (amended Mar. 17, 2017). On the same day the Ninth Circuit declined to reconsider its decision on the prior Executive Order, the new Order was enjoined in part by the District of Hawaii and the District of Maryland. See Order Granting TRO, Hawaii v. Trump, No. 1700050-DKW-KSC, (D. Haw. Mar. 15, 2017), ECF No. 219; Mem. Op., Int’l Refugee Assistance Project v. Trump, No. 17-00361-TDC (D. Md. Mar. 16, 2017), ECF No. 149 (signed Mar. 15, 2017). Both decisions were appealed and argument was heard by the Fourth Circuit on May 8, 2017 and by the Ninth Circuit on May 15, 2017. Int’l Refugee Assistance Project. v. Trump, No. 17-1351 (4th Cir. May 8, 2017), ECF No. 293; Hawaii v. Trump, No. 17-15589 (9th Cir. May 15, 2017), ECF No. 304. Neither appellate court has yet issued an opinion.
In defending the prior Order before this court, the federal government argued that the President has “unreviewable authority” to suspend the admission of “any class of aliens,” regardless of the constitutional rights and protections implicated by his action. Opp’n to Pl.’s Request for a Prelim Inj., ECF No. 26-1 at 3. For that sweeping contention, the government invoked the so-called “plenary power” doctrine—a doctrine whose limited role in modern American jurisprudence cannot bear the weight of the government’s arguments.
The plenary power doctrine derives from decisions such as Chae Chan Ping v. United States, 130 U.S. 581 (1889) (“Chinese Exclusion Case”), which were
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premised on racist and nativist precepts we now reject. In upholding a law that prohibited Chinese laborers from returning to the United States, the Chinese Exclusion Case relied on pejorative stereotypes to eschew judicial scrutiny. Hearkening back to dissents from early cases, and informed by contemporary norms and the lessons of history, modern courts have refused to afford complete deference to executive and legislative decisions in the realm of immigration.
To that end, in reviewing the prior Order, the Ninth Circuit emphatically rejected the federal government’s contention that the President’s authority to “suspend…any class of aliens” is “unreviewable,” explaining that the proposition finds no support in precedent and “runs contrary to the fundamental structure of our. . . democracy.” Washington, 847 F.3d at 1161. Moreover, the court admonished, judicial review is acutely important—and unbounded plenary power is particularly untenable—where, as here, the governmental action being challenged promulgates a broadly-applicable policy targeting groups based on characteristics such as race, religion, or national origin. See id. at 1162.
Defending the new Order, the government has changed its words but not its message. While it no longer directly invokes the notion of “plenary power,” the government nonetheless asks for near complete deference to the Executive Branch with respect to the decisions underlying the Order, noting that, “[t]he President’s power . . . ‘is at its maximum’” in the areas of foreign relations and national
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security and that “the Constitution’s allocation of power over immigration matters… ‘[is] so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.’” Motion to Dismiss, ECF No. 76 at 17-18. See also Hawaii, No. 17-15589, ECF No. 23 at 40 (“in prescribing general policies” particularly in the realm of immigration and national security, “the political branches’ . . . constitutional prerogatives are at their zenith.”); id. at 32 (arguing that plaintiffs’ claims were barred by the doctrine of “consular nonreviewability”).
Executive action, taken in the name of national security and left unchecked by the judiciary, is all too familiar to the Korematsu Center, which owes its existence to the forced relocation and incarceration during World War II of more than 110,000 men, women, and children of Japanese descent that was challenged— to no avail—in Korematsu v. United States, 323 U.S. 214 (1944). Decades later, upon finally vacating Mr. Korematsu’s conviction for defying the baseless military order, a federal court observed that the Korematsu precedent “stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees”; “national security must not be used to protect governmental actions from close scrutiny and accountability”; and courts “must be prepared to exercise their authority to protect all citizens from the
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petty fears and prejudices that are so easily aroused.” Korematsu v. United States, 584 F. Supp. 1406, 1420 (N.D. Cal. 1984).
To ensure the exercise of that authority, this case should be permitted to proceed to the merits stage to allow for the same close judicial scrutiny imposed on the prior Order.
ARGUMENT I. THE “PLENARY POWER” DOCTRINE ORIGINATED FROM
RACIST NOTIONS THAT COURTS NOW REJECT. To the extent the Supreme Court ever recognized a truly “plenary” power in the immigration realm that would preclude judicial review of any constitutional claims (which it has not), that conception is linked to racist attitudes from a past era and has long since fallen out of favor. In the Chinese Exclusion Case, the Court upheld a statute preventing the return of Chinese laborers who had departed the United States prior to its passage. 130 U.S. at 581-582. Describing the reasons underlying the law’s enactment, the Court characterized Chinese laborers as “content with the simplest fare, such as would not suffice for our laborers and artisans,” and observed that they remained “strangers in the land, residing apart by themselves[,] . . . adhering to the customs and usages of their own country,” and unable “to assimilate with our people.” Id. at 595. “The differences of race added greatly to the difficulties of the situation.” Id. Residents of the West coast, the Court explained, warned of an “Oriental
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invasion” and “saw or believed they saw . . . great danger that at no distant day [the West] would be overrun by them, unless prompt action was taken to restrict their immigration.” Id.
Far from applying a skeptical eye to the law in light of the clear animus motivating its passage, the Court found that “[i]f the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security . . . its determination is conclusive upon the judiciary.” Id. at 606; see also 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, 15 (2003). In reality, the “right of self-preservation” that the Court validated as justification for the government’s unbounded power to exclude immigrants was ethnic and racial self-preservation, not the preservation of borders or national security. 130 U.S. at 608; see id. at 606 (“It matters not in what form . . . aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us.”). Similar racist and xenophobic attitudes are evident in decisions following the Chinese Exclusion Case. See, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 729-730 (1893) (upholding requirement that Chinese resident aliens offer “at least one credible white witness” in order to remain in the country); id. at 730
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(noting Congress’s belief that testimony from Chinese witnesses could not be credited because of “the loose notions entertained by the witnesses of the obligation of an oath” (quoting Chinese Exclusion Case, 130 U.S. at 598)).
While the Court’s early plenary power decisions were undoubtedly influenced by such attitudes now repudiated, the Court nonetheless recognized that the government’s sovereign authority is subject to constitutional limitations. See Chinese Exclusion Case, 130 U.S. at 604 (“[S]overeign powers[] [are] restricted in their exercise only by the constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations.”). And even in those early years, the Court divided over the reach of the government’s plenary power in light of those limitations. Fong Yue Ting, which upheld a law requiring Chinese laborers residing in the United States to obtain a special certificate of residence to avoid deportation, generated three dissenting opinions. See 149 U.S. at 738 (Brewer, J., dissenting) (“I deny that there is any arbitrary and unrestrained power to banish residents, even resident aliens.”); id. at 746 (Field, J., dissenting); id. at 762 (Fuller, J., dissenting) (similar). Even Justice Field, who authored the Court’s opinion in the Chinese Exclusion Case, sought to limit the plenary power doctrine’s application with regard to alien 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
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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).
Nearly 60 years later, judicial skepticism regarding an unrestrained plenary
power persisted—and grew. Dissenting in Harisiades v. Shaughnessy, 342 U.S.
580 (1952), which upheld a provision permitting the deportation of resident aliens
who were members of the Communist Party, Justice Douglas quoted Justice
Brewer’s dissent in Fong Yue Ting, observing that it “grows in power with the
passing years”:
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. at 599-600 (Douglas, J., dissenting) (quoting Fong Yue Ting, 149 U.S. at 737-
738 (Brewer, J., dissenting)), (emphasis added).
In another McCarthy-era precedent, four Justices advocated for limitations
on the plenary power doctrine. In Shaughnessy v. United States ex rel. Mezei, 345
U.S. 206 (1953), the Court rejected any constitutional challenge to the exclusion of
an alien who had previously resided in the United States, despite his resulting
detention at Ellis Island. In dissent, Justice Black, joined by Justice Douglas,
reasoned that “[n]o society is free where government makes one person’s liberty 13

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depend upon the arbitrary will of another.” Id. at 217. “Dictatorships,” he observed, “have done this since time immemorial. They do now.” Id. Justice Jackson, joined by Justice Frankfurter, added that, while in his view the “detention of an alien would not be inconsistent with substantive due process,” such individuals must be “accorded procedural due process of law.” Id. at 224.
Perhaps reflective of the shift away from race-based characterizations and other outdated notions prevalent in its early plenary power precedents, the Court in recent years has been more willing to enforce constitutional limitations on the federal government’s authority over immigration matters.
For example, in Reno v. Flores, 507 U.S. 292 (1993), the Court held that, despite the broad power of the political branches over immigration, INS regulations must at least “rationally advanc[e] some legitimate governmental purpose.” Id. at 306. In Landon v. Plasencia, 459 U.S. 21 (1982), the Court affirmed that a resident alien returning from a brief trip abroad must be afforded due process in an exclusion proceeding, notwithstanding the government’s expansive discretion to exclude. Id. at 33. And in Zadvydas v. Davis, 533 U.S. 678 (2001), in response to the government’s contention that “Congress has ‘plenary power’ to create immigration law, and . . . the Judicial Branch must defer to Executive and Legislative Branch decisionmaking in that area,” the Court observed that such “power is subject to important constitutional limitations.” Id. at
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695 (citations omitted). “[F]ocus[ing] upon those limitations,” id., the Court determined that the indefinite detention of aliens deemed removable would raise “serious constitutional concerns” and accordingly construed the statute at issue to avoid those problems, id. at 682; see also Washington, 847 F.3d at 1162-1163 (collecting cases demonstrating reviewability of federal government action in immigration and national security matters).
Indeed, even decisions on which the federal government relies to defend the Executive Order do not support the notion that the authority of the political branches is plenary and unreviewable in the present context. The Court’s most recent decision in this area in fact suggests that, after more than a century of erosion, the plenary power doctrine as the federal government conceives it no longer exists.
In Kerry v. Din, 135 S. Ct. 2128 (2015), the Supreme Court considered a due process claim arising from the denial without adequate explanation of a spouse’s visa application. Although it described the power of the political branches over immigration as “plenary,” Justice Kennedy’s concurring opinion in Din makes clear that courts may review an exercise of that power to ensure that the reason offered for the exclusion of an alien is “legitimate and bona fide.” Id. at 21392140. Justice Kennedy explained that, although the Court in Kleindienst v. Mandel, 408 U.S. 753 (1972), had declined to balance the constitutional rights of
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American citizens injured by a visa denial against “Congress’s ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden,’” Kerry, 135 S. Ct. at 2139 (quoting Mandel, 408 U.S. at 766), the Court did inquire “whether the Government had provided a ‘facially legitimate and bona fide’ reason for its action,” id. at 2140 (quoting Mandel, 408 U.S. at 770). And while as a general matter courts are instructed not to “look behind” the government’s asserted reason for its decision provided it is “bona fide and legitimate,” Justice Kennedy stated that exceptions to that rule would apply if the challenger made “an affirmative showing of bad faith.” Id. at 2141.
To be sure, Justice Kennedy’s opinion in Din acknowledged that the political branches are entitled to wide latitude and deference in immigration matters. But, as the Ninth Circuit recognized when reviewing the prior Executive Order, Din (and Mandel before it) concerned an individual visa denial on the facts of that case. By contrast, the Executive Order sets a nationwide immigration policy, presumptively suspending entry and foreclosing visa adjudications for most aliens of certain nationalities. While it may be sensible for courts to defer to the judgment of the political branches when considering the application of immigration law to a particular alien, “the President’s promulgation of a sweeping immigration policy,” Washington, 847 F.3d at 1162—especially one aimed at
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nationals of particular countries likely to share a common religion—is properly the subject of closer judicial scrutiny. Recognizing that critical distinction, the Ninth Circuit correctly determined that the standard cited in Din plainly did not apply to the previous Executive Order. Id.
All told, the proposition that courts should not closely review the Executive Order is unsupported by modern judicial precedent. Even in cases concerning individual visa denials, the Court has inquired as to whether the government offered a “legitimate and bona fide” reason for the denial and has indicated that courts may look behind the asserted rationale in circumstances suggesting bad faith. Where, as here, the court is asked to review a broadly-applicable policy— promulgated at the highest level of the Executive Branch and targeting aliens based on nationality and religion—precedent and common sense demand a more searching judicial review. But whatever the standard, there is no basis for finding that the Executive Order is immune from judicial scrutiny. II. KOREMATSU STANDS AS A STARK REMINDER OF THE NEED
FOR VIGILANT JUDICIAL REVIEW OF GOVERNMENTAL ACTION TARGETING DISFAVORED GROUPS IN THE NAME OF NATIONAL SECURITY. In telling this court first that the President’s discretion to exclude “any class of aliens” is plenary and unreviewable, and now that presidential decision-making in that realm is subject to little more than nominal judicial scrutiny, the federal government has asked the court to take it at its word that the Executive Order is
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justified by national security. But the notion that the political branches might use national security as a smokescreen to discriminate against disfavored classes is not an unfounded concern—it is validated by the tragic chapter in our Nation’s history that gave rise to Korematsu v. United States, 323 U.S. 214 (1944).
Seventy-five years ago, President Roosevelt issued Executive Order No. 9066, which authorized the Secretary of War to designate military areas from which “any or all persons” could be excluded and “with respect to which, the right of any person to enter, remain in, or leave” would be subject to “whatever restrictions the Secretary of War or the appropriate Military Commander may impose.” Executive Order No. 9066, “Authorizing the Secretary of War to Prescribe Military Areas,” 7 Fed. Reg. 1407 (Feb. 19, 1942). Although it did not explicitly refer to Japanese Americans, that Order resulted in the forcible relocation and incarceration of more than 110,000 men, women, and children of Japanese descent. Fred Korematsu, one of those Japanese Americans, was convicted for defying the military’s invocation of the Order. The Supreme Court upheld his conviction, along with the convictions of Gordon Hirabayashi and Minoru Yasui, thus effectively sanctioning Japanese-American incarceration during World War II on the purported basis of military necessity. Korematsu, 323 U.S. 214; see also Hirabayashi v. United States, 320 U.S. 81 (1943); Yasui v. United States, 320 U.S. 115 (1943).
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The Court’s decision in Korematsu produced vigorous dissents, including one by Justice Murphy, who questioned the validity of the military interest the government advanced. Although acknowledging that the discretion of those entrusted with national security matters “must, as a matter of . . . common sense, be wide,” Korematsu, 323 U.S. at 234, Justice Murphy opined that “[i]t is essential that there be definite limits to military discretion” and that individuals not be “left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.” Id. In his view, the Order “clearly d[id] not meet th[is] test” as it relied “for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage...” Id. at 235. While conceding that “there were some disloyal persons of Japanese descent on the Pacific Coast,” Justice Murphy dismissed the “infer[ence] that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group” as nothing more than “th[e] legalization of racism.” Id. at 240-241, 242.
History has proven Justice Murphy right. More than a half-century after the Court’s decision, the Acting Solicitor General acknowledged that, contrary to its representations, 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.” U.S. Dep’t
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of Justice, Confession of Error: The Solicitor General’s Mistakes During the Japanese-American Internment Cases (May 20, 2011), https://www.justice.gov/opa/blog/confession-error-solicitor-generals-mistakesduring-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, 584 F. Supp. at 1420. The Ninth Circuit made similar findings on its way to vacating Gordon Hirabayashi’s convictions. See Hirabayashi v. United States, 828 F.2d 591, 593 (9th Cir. 1987) (observing that, although the Supreme Court accepted the government’s contention that “the curfew was justified by military assessments of emergency conditions,” available materials demonstrate that “there could have been 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 for thousands of American citizens”); accord Yasui v. United States, 772 F.2d 1496 (9th Cir. 1985) (vacating Minoru Yasui’s criminal conviction). The government’s actions in these three cases and the facts that were eventually revealed highlight the
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importance of allowing this case to proceed to the merits stage, where questions regarding the motivations for the Order might actually be answered.
The Supreme Court’s decision in Korematsu gave virtually a blank check to the Executive Branch to take action against disfavored minorities in the name of national security. Although the government asserted a facially valid justification for its action, that justification was later discredited. The revelation that the government’s unprecedented action was not in fact necessary is but one reason that Korematsu is not only widely understood as wrongly decided as a matter of law, but remains a black mark on our Nation’s history and serves as a stark reminder of the dire consequences that result when abuses by the political branches go unchecked by the Judiciary. See Stephen Breyer, The Court and the World 84 (2015) (“Korematsu illustrated that it can be highly destructive of civil liberties to understand the Constitution as giving the President a blank check. Such deference could prove even more destructive of rights during a ‘war’ against more diffuse security threats over longer periods of time.”); see also Eric K. Yamamoto et al., Race Rights and Reparations: Law and the Japanese Internment 379-419 (2013); 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”
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of performing checks on Presidential power “has a name. That name is Korematsu”).
Korematsu, along with Plessy v. Ferguson, is regarded as “embod[ying] 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). History may look similarly at this period if courts allow the Executive Order to evade robust review based on a plenary power doctrine rooted in outdated notions and xenophobia, or an unwillingness to apply healthy judicial skepticism to governmental action taken in the name of national security. This court should not abdicate its duty to stand as a bulwark against governmental action that undermines our core constitutional principles.
CONCLUSION For the foregoing reasons, this court should deny the relief sought by the federal government.
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Respectfully submitted, Dated: May 18, 2017

s/ Robert A. Johnson
Robert A. Johnson Pratik A. Shah Martine E. Cicconi* Jessica M. Weisel Elizabeth C. Rosen Daniella Roseman AKIN GUMP STRAUSS HAUER & FELD LLP
* Licensed to practice in California only and under the direct supervision of a partner of Akin Gump Strauss Hauer & Feld LLP who is an enrolled, active member of the District of Columbia Bar; applicant for admission to the D.C. Bar.
Robert S. Chang FRED T. KOREMATSU CENTER FOR LAW AND
EQUALITY
William H. Goodman GOODMAN & HURWITZ PC
Attorneys for Amici Curiae

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CERTIFICATE OF COMPLIANCE I hereby certify that, pursuant to Fed. R. Civ. P. 32(a)(5) and E.D. Mich. LR 5.1, the attached brief is double spaced, uses a proportionately spaced typeface of 14 points or more, and contains a total of 5,028 words, based on the word count program in Microsoft Word.

Dated: May 18, 2017

AKIN GUMP STRAUSS HAUER & FELD LLP
By s/ Robert A. Johnson Robert A. Johnson

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2:17-cv-10310-VAR-SDD Doc # 90 Filed 05/18/17 Pg 43 of 43 Pg ID 1269
CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Eastern District of Michigan by using the CM/ECF system on May 18, 2017. I certify that all parties in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

Dated: May 18, 2017

By s/ Robert A. Johnson Robert A. Johnson

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 2:17-cv-10310-VAR-SDD Doc # 94 Filed 05/19/17 Pg 1 of 38 Pg ID 1284

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

__________________________________________

|

ARAB AMERICAN CIVIL RIGHTS

|

LEAGUE (“ACRL”), et al.,

|

| Case No. 17−cv−10310

| Hon. Victoria A. Roberts

Plaintiffs,

| Mag. J. Stephanie D. Davis

|

v.

| Date: May 19, 2017

|

DONALD J. TRUMP, President of the |

United States, et al.,

|

|

Respondents.

|

|

BRIEF OF FORMER NATIONAL SECURITY OFFICIALS AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS

Harold Hongju Koh Hope Metcalf RULE OF LAW CLINIC Yale Law School 127 Wall Street, P.O. Box 208215 New Haven, CT 06520-8215 203-432-4932

/s/ John Doroghazi John Doroghazi Jonathan M. Freiman Tahlia Townsend WIGGIN AND DANA LLP 265 Church Street P.O. Box 1832 New Haven, CT 06508-1832 203-498-4584
Counsel for Amici Curiae

2:17-cv-10310-VAR-SDD Doc # 94 Filed 05/19/17 Pg 2 of 38 Pg ID 1285
TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................... ii INTEREST OF AMICI CURIAE............................................................................... 1 ARGUMENT............................................................................................................... 2 I. THE REVISED EXECUTIVE ORDER CANNOT BE JUSTIFIED ON
NATIONAL SECURITY OR FOREIGN POLICY GROUNDS ................ 3 A. There is no national security or foreign policy basis for suspending
entry of aliens from the six named countries. .......................................... 5 B. The suspension of refugee admissions is not justified by national
security or foreign policy concerns. ....................................................... 11 II. THE REVISED EXECUTIVE ORDER’S OVERBREADTH HARMS
OUR NATIONAL SECURITY AND FOREIGN POLICY INTERESTS.................................................................................................... 14 A. The Order is of unprecedented scope..................................................... 14 B. The Order will do serious damage to our national security and foreign
policy interests........................................................................................ 15 1. The Order will endanger U.S. troops in the field............................ 15 2. The Order will disrupt essential counterterrorism, foreign policy,
and national security partnerships. .................................................. 16 3. The Order will hinder domestic law enforcement efforts. .............. 17 4. The Order will have a devastating humanitarian impact. ............... 18 5. The Order will cause economic damage to American citizens and
residents........................................................................................... 18 III. THE REVISED EXECUTIVE ORDER PERPETUATES THE BASIC
STRUCTURAL FLAWS OF THE ORIGINAL ILL-CONCEIVED, POORLY IMPLEMENTED AND ILL-EXPLAINED ORDER.. ............. 19 CONCLUSION.......................................................................................................... 24 APPENDIX: LIST OF AMICI
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TABLE OF AUTHORITIES Cases Aziz v. Trump, No. 1:17-cv-00116-LMB-TCB, __ F.Supp.3d __, 2017
WL 580855 (E.D. Va. Feb. 13, 2017) ....................................................................6 U.S. v. Fordice, 505 U.S. 717 (1992) ............................................................... 19, 20 Vill. Of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252
(1977)............................................................................................................. 19, 20 Washington v. Trump, No. 17-35105, __ F.3d__, 2017 WL 526497,
slip op. (9th Cir. Feb. 9, 2017) .........................................................................6, 19 Statutes 8 U.S.C. § 1182........................................................................................................21 8 U.S.C. § 1187....................................................................................................... 10 Regulations Exec. Order No. 11,030, 27 Fed. Reg. 5,847 (Jun. 19, 1962) ................................22 Exec. Order No. 12,324, 46 Fed. Reg. 48,109 (Sept. 29, 1981)..............................15 Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (May 24, 1992)...............................15 Exec. Order No. 13,694, 80 Fed. Reg. 18,077 (Apr. 1, 2015).................................15 Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (Apr. 19, 2016)...............................15 Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017) ..................................3 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017)....................................3 Other Authorities Adams Nager, et al., The Demographics of Innovation in the United
States, Information Technology & Innovation Foundation (Feb. 16)..................19
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Alex Nowrasteh, Little National Security Benefit to Trump’s Executive Order on Immigration, CATO at Liberty (Jan. 25, 2017)...............4, 12
Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, Cato Institute (Sept. 13, 2016) ........................................................................................6
Alex Nowrasteh, 42 Percent of 'Terrorism-Related' Convictions Aren't for Terrorism, Cato Institute (Mar. 6, 2017) ..........................................................6
Amy Pope, The Screening Process for Refugee Entry into the United States (Nov. 20, 2015) ..........................................................................................12
Andorra Bruno, Iraqi and Afghan Special Immigrant Visa Programs, Cong. Research Serv. (2016)..................................................................................9
Andorra Bruno, Syrian Refugee Admissions and Resettlement in the United States: In Brief, Cong. Research Serv. (2006) .........................................13
Annex of Statistical Information, Country Reports on Terrorism (June 2015) .......................................................................................................................7
Br. for Technology Companies and Other Businesses as Amici Curiae in Support of Appellees, Washington v. Trump, No. 17-35105, __ F.3d __, 2017 WL 526497 (9th Cir. Feb. 9, 2017)...............................................19
Carl J. Bon Tempo, Americans at the Gate: The United States and Refugees during the Cold War 1 (2008)...............................................................24
Central Intelligence Agency, 11 September 2001 Hijackers.....................................5
Edward Alden, The Closing of the American Border 104-06 (2008)......................21
Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017)........................................................... 22, 23
Felicia Schwartz & Ben Kesling, Countries Under U.S. Entry Ban Aren’t Main Sources of Terror Attacks, The Wall St. J. (Jan. 29, 2017) .......................................................................................................................6
Geneva Sands et al., Officials Aim to Clarify Impact on Dual Nationals From Trump’s Immigration Executive Order, ABC News (Feb. 1, 2017)........................................................................................................23
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George Washington University Program on Extremism, ISIS in America: From Retweets to Raqqa 6 (Dec. 2015) .................................................6
Henry B. Hogue, Cong. Research Serv., RS22979, Presidential Transition Act: Provisions and Funding (2016)...................................................21
Joby Warrick, Jihadist Groups Hail Trump’s Travel Ban as a Victory, Wash. Post (Jan. 29 2017) ....................................................................................17
Jon Finer, Sorry, Mr. President: The Obama Administration Did Nothing Similar to Your Immigration Ban, Foreign Policy (Jan. 30, 2017).................................................................................................................9, 21
Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017) ......................................................................................................22
Kevin Liptak, Travel Ban Remains Sticking Point in Trump Calls with US Allies, CNN (Feb. 9, 2017).............................................................................16
Kristina Cooke & Joseph Ax, U.S. Officials Say American Muslims Do Report Extremist Threats, Reuters (Jun. 16, 2016) ........................................17
Matthew Nussbaum et al., White House Creates Confusion About Future of Trump's Travel Ban, Politico (Feb. 21, 2017)..................................4, 23
Memorandum from Stuart Levey, Assoc. Deputy Att’y Gen., to Dan Levin, Counsel to the Att’y Gen., & David Ayres, Dep’t of Justice Chief of Staff (Oct. 3, 2001)................................................................................21
Michael D. Shear & Ron Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017).............................................................................................................. 22, 23
Michael V. Hayden, Former CIA Chief: Trump’s Travel Ban Hurts American Spies – and America, Wash. Post (Feb. 5, 2017).................................16
Molly Redden, Trump Powers “Will not be Questioned” on Immigration, Senior Official Says, The Guardian (Feb. 12, 2007)........................6
Muslim Public Affairs Council, Data on Post-9/11 Terrorism in the United States (Jun. 2012) .....................................................................................17
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Nora Ellingsten, It’s Not Foreigners Who Are Plotting Here: What the Data Really Show, Lawfare (Feb. 7, 2017) ............................................................6
Patrick O’Neill, How Academics Are Helping Cybersecurity Students Overcome Trump’s Immigration Order, Cyberscoop (Jan. 30, 2017).................19
Peter Bergen et al., Terrorism in America After 9/11, New America Foundation ..............................................................................................................5
Rebecca Savransky, Iraq Parliament Approves ‘Reciprocity Measure’ In Trump Immigration Ban’s Wake, The Hill (Jan. 30, 2017) .............................16
Refugee Processing Center, Interactive Reporting, Admissions and Arrivals ...................................................................................................................9
Sabrina Siddiqui, Trump Signs ‘Extreme Vetting’ Executive Order for People Entering the US, The Guardian (Jan. 27, 2017).........................................5
Stephanie Ott, What Happens to Iraqis who Worked with the U.S. military, Al Jazeera (Feb. 1, 2017).......................................................................15
Ten Years After 9/11: Preventing Terrorist Travel, Hearing Before the United States S. Comm. on Homeland Sec. and Governmental Affairs, 112th Cong. 522 (2011) (written statements of Rand Beers and Janice L. Jacobs)..............................................................................................9
The Security of U.S. Visa Programs: Hearing Before the S. Comm on Homeland Sec. & Governmental Affairs, 114th Cong. (2016) (written statements of David Donahue and Sarah R. Saldaña) ..............................8
The White House, Visa Waiver Program Enhancements (Nov. 30, 2015) .....................................................................................................................10
Thomas R. Eldridge, et. al., 9/11 and Terrorist Travel: A Staff Report of the National Commission on Terrorist Attacks Upon the United States (2004).........................................................................................................21
U.S. Dep't of Homeland Security, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016) .................................10
U.S. Dep't of Homeland Security, U.S. Citizenship and Immigration Services (Dec. 3, 2015)........................................................................................13
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U.S. Dep’t of Commerce, Department of Commerce Releases October Travel and Tourism Expenditures (Dec. 15, 2016)..............................................18
U.S. Dep’t of State et al, Report to the Congress, Proposed Refugee Admissions for Fiscal Year 2016 (2016)..............................................................15
U.S. Dep’t of State, U.S. Refugee Resettlement Processing for Iraqi and Syrian Beneficiaries of an Approved I-130 Petition (Mar. 11, 2016) .....................................................................................................................13
U.S. Dep’t of State, The Refugee Processing and Screening System........................4 U.S. Dep’t of State, U.S. Refugee Admissions Program FAQs ...............................12 U.S. Dep’t of State, Visa Waiver Program..............................................................10 U.N. High Commissioner for Refugees, Resettlement ............................................14 Urban Justice Center, International Refugee Assistance Project, IRAP
Stands With Iraqi Allies of the United States Affected by Executive Order (Feb. 1, 2017).............................................................................................15 William Glaberson & Helene Cooper, Obama’s Plan to Close Prison at Guantánamo May Take Year, N.Y. Times (Jan. 12, 2009)..............................21
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INTEREST OF AMICI CURIAE Amici curiae are former national security, foreign policy and intelligence officials who have worked on pressing national security matters in the U.S. government. A number of amici have worked at senior levels in administrations of both political parties. Amici have collectively devoted decades to combatting the various terrorist threats that the United States faces in an increasingly dangerous and dynamic world. Amici have all held the highest security clearances. A significant number were current on active intelligence regarding credible terrorist threat streams directed against the United States as recently as one week before the January 27, 2017 Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (“January 27 Order”), and weeks before the March 6, 2017 Executive Order bearing the same title (“March 6 Order”). On February 16, 2017, amici filed an amicus brief in Darweesh v. Trump in the U.S. District Court for the Eastern District of New York, expressing our view that the January 27 Order “cannot be justified on national security or foreign policy grounds” and “would undermine the security of the United States.” Amici have reached the same conclusion about the March 6 Order, which presents and preserves the same core problems as its predecessor. Amici all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to
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the United States. Amici nevertheless do not believe that risk merits the blanket and counterproductive bans on entry into the United States established by the Order, either in its original form or as revised.
ARGUMENT The March 6 Order serves no persuasive national security or foreign policy purpose. Left in place, the Order will do long-term damage to our national security and foreign policy interests. It will endanger troops in the field, and disrupt key counterterrorism and national security partnerships. It will aid the propaganda effort of the Islamic State in Iraq and the Levant (“ISIL”) and support its recruitment message. By feeding the narrative that the United States is at war with Islam, the Order will impair relationships with the very Muslim communities that law enforcement professionals rely on to address the threat of terrorism. And it will have a damaging humanitarian and economic impact. Indeed, the March 6 Order preserves the same problematic features of the January 27 Order that were outlined in the original brief filed by many of the same amici in Darweesh. The March 6 Order continues to impose a blanket ban on entry from the listed countries that cannot be justified on national security or foreign policy grounds. The March 6 Order continues to depart from the particularized review based on credible intelligence-based threats that has been a core premise of our border security efforts across decades of administrations led by
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Presidents from both parties. And rebranding a proposal first advertised as a “Muslim Ban” as “Protecting the Nation from Foreign Terrorist Entry into the United States” did not disguise the January 27 Order’s discriminatory intent, or make it necessary, effective, or faithful to America’s Constitution, laws, and values. The few changes introduced in the March 6 Order do not cure this discriminatory intent, or suddenly provide a persuasive basis for the Order on national security or foreign policy grounds. I. THE REVISED EXECUTIVE ORDER CANNOT BE JUSTIFIED ON
NATIONAL SECURITY OR FOREIGN POLICY GROUNDS. On January 27, 2017, President Donald Trump signed an executive order imposing a number of suspensions on the entry of non-citizens into the United States.1 The President’s stated goals for the Order were to “protect[] the nation from foreign terrorist entry into the United States” and to “ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”2 On March 6, 2017, following weeks of litigation, the Administration issued a revised version of the Executive Order.3 This March 6 Order revokes the January 27, 2017 Order and makes several changes to that Order, including exempting green card holders and valid visa holders from the immigration restrictions and removing Iraq from the list of excluded countries.
1 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017). 2 Id. 3 Exec. Order 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017).
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However, the Order continues to suspend travel from the listed countries for 90 days from its effective date. The Order continues to suspend refugee admissions for 120 days.4 And in the words of a senior advisor to President Trump, the Order still aims to guarantee the “same basic policy outcome.”5
As former U.S. officials responsible for the national security and foreign relations of the United States in multiple presidential administrations, amici have devoted their careers to the safety and welfare of the American people. Yet the March Order continues to bear no rational relation to the President’s stated aim of protecting the nation from foreign terrorism. It targets countries whose nationals have committed no lethal terrorist attacks on U.S. soil in the last forty years. It suspends the entry of refugees—the vast majority of whom are vulnerable women and children6—when in the modern era of screening, no refugee has ever killed a U.S. citizen in a terrorist attack in the United States.7
Even now, months after the signing of the original January 27 Order, Respondents have supplied no persuasive information to justify such a categorical
4 A redlined comparison of the two Orders can be found at: http://aclum.org/wpcontent/uploads/2017/03/2017_1_27-Muslim-Ban-EO-Word-VS.-2017_3_06-Muslim-BanEO.pdf. 5 Matthew Nussbaum et al., White House Creates Confusion About Future of Trump’s Travel Ban, Politico (Feb. 21, 2017). 6 U.S. Dep’t of State, The Refugee Processing and Screening System, https://www.state.gov/documents/organization/266671.pdf. 7 Alex Nowrasteh, Little National Security Benefit to Trump’s Executive Order on Immigration, CATO at Liberty (Jan. 25, 2017) [hereinafter “Nowrasteh Jan. 2017”].
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ban, even in revised form. They make no showing that our immigration system has suffered from inadequate consideration of national origin or religious affiliation, and identify no flaw in the current individualized vetting procedures, developed by national security officials across several presidential administrations in response to particular threats identified by U.S. intelligence.
A. There is no national security or foreign policy basis for suspending entry of aliens from the six named countries.
No legitimate national security purpose is served by the Order’s blanket ban on entry by nationals of Syria, Sudan, Iran, Somalia, Libya, and Yemen.
First, not a single American has died in a terrorist attack on U.S. soil at the hands of citizens of these six nations in the last forty years.8 The January Order opened with a reference to the September 11, 2001 attacks, and White House officials have since pointed to those attacks as justification for its restrictions.9 But none of the September 11 hijackers were citizens of the six targeted countries.10 In fact, multiple studies show that the overwhelming majority of individuals charged with, or who died committing, terrorist-related crimes inside the United States after September 11 were U.S. citizens or legal permanent residents.11
8 Id. 9 Jan. 27 Order §1; Sabrina Siddiqui, Trump Signs ‘Extreme Vetting’ Executive Order for People Entering the US, The Guardian (Jan. 27, 2017). 10 Central Intelligence Agency, 11 September 2001 Hijackers, https://www.cia.gov/newsinformation/speeches-testimony/2002/DCI_18_June _testimony_new.pdf. 11 See Peter Bergen et al., Terrorism in America After 9/11, New America Foundation,
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The U.S. government provided no evidence to the contrary in the January 27
Order.12 The March 6 Order now offers the assertion that “[s]ince 2001, hundreds
of persons born abroad have been convicted of terrorism-related crimes in the
United States.” The Order does not cite any support for this statement. But a
similar set of data relied on by White House officials to justify the January 27
Order has been widely criticized for its definition of terrorism-related offenses.13
Second, Respondents have identified no persuasive evidence that a
heightened or particularized threat has suddenly arisen from the six countries. The
January 27 Order offered no such explanation at all. The March 6 Order offers a
series of excerpts from the 2015 State Department Country Reports on Terrorism
and elsewhere, describing these nations as home to violent extremist groups and
not cooperative with U.S. counterterrorism efforts. However, the Country Reports
merely confirm the imprecision of the Order’s country bans, pointing out, for
www.newamerica.org/in-depth/terrorism-in-america/; George Washington University Program on Extremism, ISIS in America: From Retweets to Raqqa 6 (Dec. 2015), https://cchs.gwu.edu/isis-in-america; Nora Ellingsten, It’s Not Foreigners Who Are Plotting Here: What the Data Really Show, Lawfare (Feb. 7, 2017); see also Felicia Schwartz & Ben Kesling, Countries Under U.S. Entry Ban Aren’t Main Sources of Terror Attacks, The Wall St. J. (Jan. 29, 2017); Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, Cato Institute (Sept. 13, 2016) [hereinafter “Nowarsteh Sept. 2016”]. 12 See Washington v. Trump, No. 17-35105, __ F.3d __ at 26, 2017 WL 526497, slip op. (9th Cir. Feb. 9, 2017); Aziz v. Trump, No. 1:17-cv-00116-LMB-TCB, __ F.Supp.3d __ at 6, 2017 WL 580855 (E.D. Va. Feb. 13, 2017). 13 See, e.g., Molly Redden, Trump Powers “Will Not be Questioned” on Immigration, Senior Official Says, The Guardian (Feb. 12, 2007); Nowaresteh Jan. 2017, supra note 7; Alex Nowrasteh, 42 Percent of ‘Terrorism-Related’ Convictions Aren’t for Terrorism, Cato Institute (Mar. 6, 2017).
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example, that over 55 percent of terrorist attacks in 2015 took place in five countries (Iraq, Afghanistan, Pakistan, India and Nigeria), none of which are subject to the travel ban.14 At any rate, the Order does not plausibly make the case that the threat from these areas has increased such that a sudden country-based ban is needed, or that a suspension of travel will lead to improved counter-terrorism efforts or information sharing with these countries. And, as amici explain later, there is ample reason to believe the Order will compromise our security programs.
The only other evidence cited by the Order is a pair of anecdotal cases in which individuals who were originally refugees from the listed countries were later sentenced for terrorism-related crimes. But one of those cases involved terror activities undertaken before the individual came to the United States, and not on U.S. soil, and vetting procedures have already been reviewed and revised to address the issues raised by that entry. The other individual did not execute on his plans at all and in any event was admitted as a small child and radicalized here in the United States, making it difficult to see how a travel suspension to improve the vetting process would have made any difference to this entry. And of course, mere mention of these two cases hardly refutes the multiple, careful analyses showing that they are very much the exception rather than the rule.15
14 Annex of Statistical Information, Country Reports on Terrorism 2015 (June 2016). 15 See supra note 11.
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A number of amici were current on active intelligence concerning all credible terrorist threat streams directed against the United States as of January 20, 2017. They know of no specific threat that—just weeks later—would have justified the January 27 ban. Amici are also unaware of any new national security basis having surfaced in the weeks between the January and March Orders.
Third, Respondents have identified no flaw in existing procedures that would justify the travel bans. Since the September 11, 2001 attacks, the United States has developed a rigorous vetting system leveraging the full capabilities of the law enforcement and intelligence communities. This vetting system is applied to travelers not once, but multiple times, and it is continually re-evaluated to ensure its effectiveness. Successive administrations have strengthened the vetting process through robust information-sharing and data integration. This approach allows identification of potential terrorists without blanket bans.16
Respondents offer no reason to move abruptly to a national origin-based ban when the United States already has a tested system of individualized vetting, developed and implemented by national security professionals across the government. Indeed, information continues to surface that confirms that countrybased bans are the wrong approach, including a Department of Homeland Security
16 See, e.g., The Security of U.S. Visa Programs: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. (2016) (written statements of David Donahue and Sarah R. Saldaña), https://www.hsgac.senate.gov/hearings/the-security-of-us-visa-programs.
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document that was prepared in response to a request from the new Administration
and that states that “country of citizenship is unlikely to be a reliable indicator of
potential terrorist activity.”17
Finally, the Order cannot be defended as a mere continuation of recent U.S.
counterterrorism policy. Because threat streams constantly evolve, when serving
as national security officials amici sought continually to improve vetting. That
effort included reviews conducted in 2011 and 2015-16 in response to particular
threats identified by intelligence sources. In 2011, after receiving derogatory
information regarding two Iraqi nationals who had entered as refugees, the U.S.
government undertook an extensive interagency review of its vetting system. The
flow of refugees from Iraq slowed during the pendency of the review18 and, upon
its completion, the U.S. government implemented stronger security procedures in
areas of identified vulnerability.19
Likewise, in late 2015 and early 2016, in response to the emerging threat
17 Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States [hereinafter “Citizenship Unlikely”], available at https://assets.documentcloud.org/documents/3474730/DHSintelligence-document-on-President-Donald.pdf. 18 Refugee Processing Center, Interactive Reporting, http://ireports.wrapsnet.org/InteractiveReporting/EnumType/Report?ItemPath=/rpt_WebArrivalsReports/MX%20%20Arrivals%20by%20Nationality%20and%20Religion; Jon Finer, Sorry, Mr. President: The Obama Administration Did Nothing Similar to Your Immigration Ban, Foreign Policy (Jan. 30, 2017). 19 Ten Years After 9/11: Preventing Terrorist Travel, Hearing Before the United States S. Comm. on Homeland Sec. and Governmental Affairs, 112th Cong. 522 (2011) (written statements of Rand Beers and Janice L. Jacobs), https://www.hsgac.senate.gov/hearings/ten-years-after-9/11preventing-terrorist-travel; Andorra Bruno, Iraqi and Afghan Special Immigrant Visa Programs, Cong. Research Serv., 14 (2016).
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posed by ISIL, the U.S. government took several steps to strengthen the Visa
Waiver Program, which allows citizens from thirty-eight approved countries to
travel to the United States without first obtaining a visa. President Obama
introduced a series of new measures to enhance security screenings and traveler risk assessments and to bolster our relationship with partner countries.20 Around
the same time, President Obama signed into law a statute that removed from the
Visa Waiver Program nationals of existing Visa Waiver Program countries who:
(1) had been present in Iraq, Syria, Iran or Sudan after March 1, 2011, or (2) were dual nationals of one of those four countries.21 Several months later, the Secretary
of Homeland Security—acting under the new statute and in consultation with the
Director of National Intelligence and the Secretary of State—expanded the list to include Yemen, Libya and Somalia.22
Contrary to Respondents’ claims, these previous reforms provide no
justification for a blanket, group-based ban on the entry of nationals from the six
countries. The enhancement of security in the refugee system allowed for more
20 The White House, Visa Waiver Program Enhancements (Nov. 30, 2015), https://obamawhitehouse.archives.gov/the-press-office/2015/11/30/fact-sheet-visa-waiverprogram-enhancements; U.S. Dep't of Homeland Security, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016), https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictions-visa-waiverprogram. 21 8 U.S.C. § 1187; U.S. Dep’t of State, Visa Waiver Program, https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html. 22 The exemptions for Yemen, Libya and Somalia applied to those who had traveled to or been present in those countries, not dual nationals. U.S. Dep’t of Homeland Security, supra note 20.
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searching, individualized vetting of travelers, the opposite of the Order’s categorical ban. Similarly, the Visa Waiver Program reforms did not automatically bar anyone—including nationals of any country—from travel to the United States. The affected individuals were simply required to obtain individually-vetted visas, just like nationals of the over 150 nations not in the Visa Waiver Program.
To keep our country safe from terrorist threats, the U.S. government must gather all credible evidence about growing threat streams—including through the best available intelligence—to thwart those threats before they ripen. Through the years, national security-based immigration restrictions have: (1) responded to specific, credible threats based on individualized information, (2) rested on the best available intelligence, and (3) been subject to thorough interagency legal and policy review. The present Order does not rest on such tailored grounds, but rather on (1) generalized bans, (2) not supported by any new intelligence that Respondents have cited or of which amici are aware, and (3) not vetted through careful interagency legal and policy review.
B. The suspension of refugee admissions is not justified by national security or foreign policy concerns.
The March 6 Order’s 120-day ban on refugee admissions serves no national security or foreign policy purpose. Amici know of no factual basis for Respondents’ claim that refugees pose a particular security threat to the United States that would justify the Order’s categorical bans.
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From 1975 to the end of 2015, over three million refugees were admitted to
the United States. According to a recent study, only three have killed people in
terrorist attacks on U.S. soil.23 All three were Cuban refugees, who murdered three
people in two attacks in the 1970s. Critically, these refugees were admitted and
carried out their crimes before the creation of the modern refugee vetting system in
1980.24 No refugee has killed an American in a terrorist attack in the United States since that system was put in place.25 According to the study, only twenty refugees were convicted of any terrorism-related crimes on U.S. soil in that same period.26
Refugees already receive the most thorough vetting of any travelers to the
United States.27 Refugee candidates are vetted recurrently throughout the
resettlement process, as “pending applications continue to be checked against
terrorist databases, to ensure new, relevant terrorism information has not come to
light.”28 By the time refugees referred by the United Nations High Commissioner
for Refugees (“UNHCR”) are approved for resettlement in the United States, they
have been reviewed by UNHCR, the National Counterterrorism Center, the Federal
23 Nowrasteh Sept. 2016, supra note 11. 24 Id. 25 Id. 26 Id. (“The chance of an American being murdered in a terrorist attack caused by a refugee is 1 in 3.64 billion per year”); see also Nowrasteh Jan. 2017, supra note 7. 27 U.S. Dep’t of State, U.S. Refugee Admissions Program FAQs, https://www.state.gov/j/prm/releases/factsheets/2017/266447.htm. 28 Amy Pope, The Screening Process for Refugee Entry into the United States (Nov. 20, 2015), https://obamawhitehouse.archives.gov/blog/2015/11/20/ infographic-screening-process-refugee-entry-united-states.
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Bureau of Investigation, the Department of Homeland Security, the Department of Defense, the Department of State, and the broader U.S. intelligence community. 29
The refugee vetting process is also reviewed and strengthened on an ongoing basis in response to particular threats.30 For Syrian applicants, the Department of Homeland Security recently added a layer of enhanced review that involves collaboration between the Refugee, Asylum, and International Operations Directorate and the Fraud Detection and National Security Directorate. Among other measures, this review provided additional, intelligence-driven support to refugee adjudicators that U.S. officials could then use to more precisely question refugees during their security interviews.31 Respondents allege no specific information about any vetting step omitted by current procedures.
While the United States’ own individualized vetting process is the most important step, additional considerations make the U.S. refugee system difficult for terrorists to exploit. Under current vetting procedures, refugees often wait eighteen to twenty-four months to be cleared for entry.32 Further, of all refugees deemed
29 U.S. Dep’t of State, supra note 28. 30 U.S. Dep’t of Homeland Security, U.S. Citizenship and Immigration Services (Dec. 3, 2015), https://www.uscis.gov/sites/default/files/ USCIS/Refugee%2C%20Asylum%2C%20and%20Int%27l%20Ops/Refugee_Security_Screenin g_Fact_Sheet.pdf. 31 U.S. Dep't of State, supra note 6; Andorra Bruno, Syrian Refugee Admissions and Resettlement in the United States: In Brief, Cong. Research Serv., 4-5 (2016). 32 U.S. Dep’t of State, U.S. Refugee Resettlement Processing for Iraqi and Syrian Beneficiaries of an Approved I-130 Petition (Mar. 11, 2016),
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eligible for resettlement by UNHCR, less than one percent were resettled in any country at all in 2015,33 so a would-be terrorist posing as a refugee has very little chance of being resettled anywhere, let alone the United States. Finally, the UNHCR places refugees in dozens of countries, and refugees do not decide which country accepts them, meaning that the odds of any individual refugee being settled into the United States in particular are exceedingly low. II. THE REVISED EXECUTIVE ORDER’S OVERBREADTH HARMS
OUR NATIONAL SECURITY AND FOREIGN POLICY INTERESTS. The March 6 Order’s overreach will do lasting harm to the national security and foreign policy interests of the United States. A. The Order is of unprecedented scope. We know of no case where a President has invoked authority under the Immigration and Nationality Act to suspend admission of such a sweeping class of people. Even after the September 11 attacks, the U.S. government did not invoke the provisions of law cited by the Administration to broadly bar entrants based on nationality, national origin or religious affiliation. Across the decades, executive orders under the Immigration and Nationality Act usually have targeted specific
https://www.state.gov/j/prm/releases/factsheets/2016/254649.htm. 33 U.N. High Commissioner for Refugees, Resettlement, http://www.unhcr.org/enus/resettlement.html.
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government officials,34 undocumented immigrants,35 or individuals whose
personalized screenings indicated that they posed a national security risk.36 No
example in the modern era approaches the breadth of this Order, which with one
stroke of the pen bans more than 180 million people in six separate countries from
traveling to the United States based solely on their national origin.
B. The Order will do serious damage to our national security and foreign policy interests.
The Order will harm U.S. interests in a number of respects.
1. The Order will endanger U.S. troops in the field.
The Order will affect interpreters and others who have assisted our troops at
great risk to their own lives. While Iraq has been removed from the list of banned
countries, the Order halts the U.S. Refugee Assistance Program for 120 days for all
countries. This pause will affect tens of thousands of individuals who assisted the
United States and who are waiting for admission under the already backlogged
“Priority 2” program.3738 Thus, removing Iraq from the Order does not eliminate
the effects its citizens – our key partners – will feel. By discouraging future
34 See, e.g., Proclamation No. 6958, 61 Fed. Reg. 60,007 (Nov. 22, 1996). 35 See, e.g., Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (May 24, 1992); Exec. Order No. 12,324, 46 Fed. Reg. 48,109 (Sept. 29, 1981). 36 See, e.g., Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (Apr. 19, 2016); Exec. Order No. 13,694, 80 Fed. Reg. 18,077 (Apr. 1, 2015). 37 The “Priority 2” program provides an alternative to the Special Immigrant Visa program. 38 U.S. Dep’t of State et al., Report to the Congress, Proposed Refugee Admissions for Fiscal Year 2016, at 57 (2016); Stephanie Ott, What Happens to Iraqis who Worked with the U.S. military, Al Jazeera (Feb. 1, 2017); Urban Justice Center, International Refugee Assistance Project, IRAP Stands With Iraqi Allies of the U.S. Affected by Executive Order (Feb. 1, 2017).
15

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assistance and cooperation from these and other affected military allies and partners, the Order will jeopardize the safety and effectiveness of our troops.
2. The Order will disrupt essential counterterrorism, foreign policy, and national security partnerships.
The Order will disrupt key counterterrorism, foreign policy, and national security partnerships critical to U.S. efforts to address the threat posed by terrorist groups such as ISIL. The Order has already sparked intense international criticism and alienated U.S. allies and partners. Countries in the Middle East expressed disapproval and even threatened reciprocal measures, jeopardizing years of diplomatic outreach.39 We can certainly anticipate a similar reaction to the current Order, if it is permitted to go into effect.
The Order will also endanger U.S. intelligence sources in the field. For upto-date information, intelligence officers rely on human sources in some of the countries listed. The Order breaches faith with those sources, who have risked much or all to keep Americans safe, and whom our officers promised to protect.40 Finally, by suspending visas, the Order halts the collection of important intelligence that occurs during visa screening processes, information that can be
39 Rebecca Savransky, Iraq Parliament Approves ‘Reciprocity Measure’ In Trump Immigration Ban’s Wake, The Hill (Jan. 30, 2017); The Guardian, UN says Trump’s revised travel ban will worsen plight of refugees (Mar. 7, 2017); Kevin Liptak, Travel Ban Remains Sticking Point in Trump Calls with US Allies, CNN (Feb. 9, 2017). 40 Michael V. Hayden, Former CIA Chief: Trump’s Travel Ban Hurts American Spies – and America, Wash. Post (Feb. 5, 2017).
16

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used to recruit agents and identify regional trends of instability.41 3. The Order will hinder domestic law enforcement efforts.
Domestic law enforcement relies heavily on partnerships with American Muslim communities to fight homegrown terrorism.42 One report found that since September 11, 2001, Muslim communities have helped U.S. security officials prevent nearly two out of every five Al-Qaeda plots threatening the United States.43 By alienating Muslim-American communities in the United States, the Order will harm our efforts to enlist their aid in identifying radicalized individuals who might launch attacks of the kind recently seen in San Bernardino and Orlando.
The Order’s disparate impact on Muslim travelers and immigrants also feeds ISIL propaganda and sends a message to the Muslim community at home and abroad that the U.S. government is at war with them based on their religion. Less than a day after President Trump signed the January 27 Order, jihadist groups began citing its contents in recruiting messages online.44 By handing ISIL the message that the United States is engaged in a religious war, the revised Order may endanger Christian communities overseas.
41 This process is particularly important in countries like Iran and Libya, where internal conflict or lack of diplomatic ties limit on-the-ground intelligence collection. 42 Kristina Cooke & Joseph Ax, U.S. Officials Say American Muslims Do Report Extremist Threats, Reuters (Jun. 16, 2016). 43 Muslim Public Affairs Council, Data on Post-9/11 Terrorism in the United States (Jun. 2012), http://www.mpac.org/assets/docs/publications/MPAC-Post-911-Terrorism-Data.pdf. 44 Joby Warrick, Jihadist Groups Hail Trump’s Travel Ban as a Victory, Wash. Post (Jan. 29 2017).
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4. The Order will have a devastating humanitarian impact. The Order will have a devastating humanitarian impact. First and foremost, the Order will disrupt the travel of men, women and children who have been victimized by actual terrorists. Next, tens of thousands of other travelers today face deep uncertainty about whether they may travel to or from the United States for reasons including medical treatment, study or scholarly exchange, funerals or other pressing family reasons. While the Order allows the Secretaries of State and Homeland Security to admit travelers from targeted countries on a case-by-case basis, in our experience it would be unrealistic for these overburdened agencies to apply such procedures to every one of the thousands of affected individuals with urgent and compelling needs to travel. Finally, closing our borders to refugees who otherwise would have had the opportunity to resettle in the United States will keep them in dangerous conditions and shift the burden to overstretched allies who are currently accepting far more than their fair share of refugees.
5. The Order will cause economic damage to American citizens and residents.
Finally, the Order will affect foreign travelers who annually inject hundreds of billions of dollars into the U.S. economy, supporting well over a million U.S. jobs.45 Since the initial Order issued, dozens of affected companies have noted the
45 U.S. Dep’t of Commerce, Department of Commerce Releases October Travel and Tourism Expenditures (Dec. 15, 2016), http://trade.gov/press/press-releases/2016/department-of-
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damaging impact the travel ban can be expected to have on strategic economic
sectors including defense, technology, and medicine.46 About a third of U.S.
innovators were born outside the United States, and their scientific and
technological innovations have contributed to making our nation and the world
safe.47 The harm caused by the ban to the economic dynamism of our country will
carry long-term negative and serious consequences for our national security.
III. THE REVISED EXECUTIVE ORDER PERPETUATES THE BASIC STRUCTURAL FLAWS OF THE ORIGINAL ILL-CONCEIVED, POORLY IMPLEMENTED AND ILL-EXPLAINED ORDER. The Supreme Court has observed that “[d]epartures from the normal
procedural sequence . . . might afford evidence that improper purposes are playing
a role” in government action. Vill. Of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 267 (1977). What is more, this evidence cannot be cured by a
later-in-time order that preserves the essential features of the first. See U.S. v.
Fordice, 505 U.S. 717 (1992) (holding that Mississippi’s re-classification of
commerce-releases-october-travel-tourism-expenditures-121516.asp. 46 See, e.g., Br. for Technology Companies and Other Businesses as Amici Curiae in Support of Appellees, Washington v. Trump, No. 17-35105, __ F.3d__, 2017 WL 526497 (9th Cir. Feb. 9, 2017). 47 Adams Nager, et al., The Demographics of Innovation in the United States, Information Technology & Innovation Foundation 29 (Feb. 2016), http://www2.itif.org/2016-demographicsof-innovation.pdf. For example, Iran’s universities have produced an “inordinate amount of intellectual talent in computer science and cybersecurity.” These scientists are drawn to U.S. universities where their research is used by entities such as the Office of Naval Research and DARPA. Patrick O’Neill, How Academics Are Helping Cybersecurity Students Overcome Trump’s Immigration Order, Cyberscoop (Jan. 30, 2017), https://www.cyberscoop.com/trumpimmigration-ban-cybersecurity-iran-protests/.
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colleges and universities in ways that were facially neutral but perpetuated racial segregation violated Brown v. Board of Education); Vill. Of Arlington Heights, 429 U.S. at 267 (noting that the “specific sequence of events leading up the challenged decision also may shed some light on the decisionmaker's purposes”).
The process that produced the January 27 Order departed from the traditional national security policy-making process, with little to no consultation or scrutiny across the Departments of State, Justice, Homeland Security or the Intelligence Community. And while further thought no doubt went into the March 6 Order, on its face it seems structured to mimic the original ban as closely as possible. As Justice Thomas has explained, “if a policy remains in force, without adequate justification and despite tainted roots and segregative effect, it appears clear – clear enough to presume conclusively – that the State has failed to disprove discriminatory intent.” Fordice, 505 U.S. at 747 (Thomas, J., concurring).
In every recent administration, Presidents considering a change to immigration policy have followed an interagency review process that allows security professionals to ensure that relevant uncertainties are addressed by policy and legal experts, appropriate preparations are made for implementation, and potential risks are effectively mitigated. Before recommendations are submitted to the President, the National Security Council oversees a legal and policy process that typically includes the following important components: a review by career
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professionals in government institutions charged with implementing an order; a
review by those institutions’ career lawyers to ensure legality and consistency in
interpretation; and a senior policy review across all relevant agencies, including Deputies and Principals at the cabinet level.48 This practice of interagency
deliberation has been followed even—and especially—in times of national
emergency to set temporary exclusions or establish criteria for admission. In the
immediate aftermath of the September 11, 2001 attacks, when the Bush
Administration considered whether the President should invoke 8 U.S.C. § 1182(f)
to bar certain immigrants or take other actions to secure the border, officials consulted across the national security agencies to arrive at a decision.49 The 2011 reexamination of the vetting system50 and the 2015-16 Visa Waiver Program reforms51 reflect similar interagency consultation.
The process that produced the January 27 Order departed sharply from this
standard practice. Amici know of no process underway before January 20, 2017 to
change current immigration vetting procedures. According to extensive reporting,
48 This is no less true of executive orders issued at the start of a presidency. See, e.g., Henry B. Hogue, Cong. Research Serv., Presidential Transition Act: Provisions and Funding (2016); William Glaberson & Helene Cooper, Obama’s Plan to Close Prison at Guantánamo May Take Year, N.Y. Times (Jan. 12, 2009). 49 Edward Alden, The Closing of the American Border 104-06 (2008); Thomas R. Eldridge et al., 9/11 and Terrorist Travel: A Staff Report of the National Commission on Terrorist Attacks Upon the United States 151-54 (2004); Mem. from Stuart Levey, Assoc. Deputy Att’y Gen., to Dan Levin, Counsel to the Att’y Gen., & David Ayres, Dep’t of Justice Chief of Staff (Oct. 3, 2001). 50 Jon Finer, supra note 19. 51 See supra notes 21-23 and surrounding text.
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Respondents followed no such process in producing the January 27 Order.52 Nor,
apparently, did the White House consult officials from any of the seven agencies
tasked with enforcing immigration laws, much less the congressional committees
and subcommittees that oversee them. There is every indication that that Order
received little, if any, advance scrutiny by the Departments of State, Justice,
Homeland Security or the intelligence community.53
As telling, the January 27 Order apparently issued without interagency legal
process. In recent history, administrations of both parties have followed a protocol
of submitting proposed Orders to the Attorney General, the Justice Department’s
Office of Legal Counsel and all other agency legal offices involved with enforcing
the law.54 Legal review by multiple agencies helps to identify potentially
unforeseen legal implications, determines the lawfulness of the proposed action,
and analyzes whether the proposed text has established legal meaning that can be
interpreted consistently with other laws and regulations. Here, the White House
52 The Secretary of Homeland Security reportedly received his first full briefing as the President signed the January 27 Order. Michael D. Shear & Ron Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017). The Secretary of Defense was neither consulted during drafting nor given an opportunity to provide input. Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017). Most State Department officials reportedly first heard of the Order through the media. Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017). 53 Customs and border officials reported that their superiors could not provide clear guidance about the new policy. Shear & Nixon, supra note 53; see also Allen & O’Brien, supra note 53 (quoting CBP chief of passenger operations at John F. Kennedy International Airport declaring, “[w]e are as much in the dark as everybody else.”). 54 See, e.g., Exec. Order No. 11,030, 27 Fed. Reg. 5,847 (Jun. 19, 1962).
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reportedly never asked the Department of Homeland Security for pre-promulgation legal review, so “[t]he Department . . . was left making a legal analysis on the order after [President] Trump signed it.”55 Unsurprisingly, the January 27 Order contained ambiguities and inconsistencies that caused serious confusion, forcing agencies to improvise and the White House to reverse itself at least once.56
Although the White House apparently consulted more agencies in the days before the March 6 Order, the process after January 27, 2017 plainly was meant to preserve the structure, substance and purpose of the original Order. Indeed, White House political advisor Stephen Miller admitted that the March 6 Order would reflect “mostly minor technical differences,” and achieve “the same basic policy outcome for the country,” statements that were echoed by other senior officials.57
Ultimately, there is scant evidence that the country-based ban maintained in the Order emerged from the considered perspective of national security experts from multiple affected agencies. In fact, a document that recently surfaced from the Department of Homeland Security shows just the opposite. Asked by the new administration to identify the terrorist threat from the listed countries, DHS officials reached two critical conclusions: that citizenship is likely an unreliable indicator of terrorist threat, and that few of the listed countries are home to terrorist
55 Perez et al., supra note 53; Shear & Nixon, supra note 53. 56 Allen & O’Brien, supra note 53; Geneva Sands et al., Officials Aim to Clarify Impact on Dual Nationals From Trump’s Immigration Executive Order, ABC News (Feb. 1, 2017). 57 Matthew Nussbaum et al., supra note 5.
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groups that threaten the west.58 To date, the Administration has not explained how the Orders’ country-based bans forestall terrorist threats or why more narrowly tailored measures would not address our country’s national security concerns.
CONCLUSION Ours is a nation of immigrants, committed to the faith that we are all equal under the law and that we abhor discrimination, whether based on race, religion, sex, or national origin. As government officials, amici sought diligently to protect our country, even while maintaining an immigration system free from intentional discrimination, a system that applies no religious tests and that measures individuals by their merits, not by stereotypes of countries or groups. Unjustified blanket bans on certain countries or classes of people are beneath the dignity of the nation and Constitution that amici took oaths to protect. Although our nation was founded by immigrants fleeing religious persecution, the Order discriminates based on religion. Although our Constitution enshrines the principle that all are equal under the law, the Order discriminates on the basis of national origin. And although the United States accepted over four million refugees in the decades after World War II,59 the Order willfully ignores the greatest refugee crisis since that time.
58 Citizenship Unlikely, supra note 18. 59 Carl J. Bon Tempo, Americans at the Gate: The United States and Refugees during the Cold War 1 (2008).
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Allowing the March 6 Order to take effect would wreak havoc on our

nation’s security and deeply held American values and would threaten innocent

lives. Denying the motion to dismiss and allowing adjudication of the underlying

legal issues would not jeopardize national security but would simply preserve the

status quo ante, subjecting travelers to all the existing, rigorous vetting processes.

For all these reasons, amici support Plaintiffs in opposing the Defendants’

motion to dismiss, and seeking to block the March 6 Order from going into effect.

Respectfully submitted,

Harold Hongju Koh Hope Metcalf RULE OF LAW CLINIC Yale Law School 127 Wall Street, P.O. Box 208215 New Haven, CT 06520-8215 203-432-4932

/s/ John Doroghazi John Doroghazi Jonathan M. Freiman Tahlia Townsend WIGGIN AND DANA LLP 265 Church Street New Haven, CT 06508-1832 203-498-4584

Counsel for Amici Curiae

 We are grateful for the contributions of Phil Spector, Danieli Evans, Clare Ryan, and Yale Law School Rule of Law Clinic students Benjamin Alter, Colleen Culbertson, Idriss Fofana, Alexandra Mahler-Haug, Abigail Olson, Aisha Saad, Mitzi Steiner, Aleksandr Sverdlik, Beatrice Walton, Emily Wanger, Zoe Weinberg, Tianyi Xin, and Nathaniel Zelinsky. The Rule of Law Clinic is organized separately from the Jerome N. Frank Legal Services Organization, a counsel for petitioners in a separate challenge to the Order. No counsel authored this brief in whole or in part; no party or party’s counsel or any person other than amici, their members, and counsel, contributed money for this brief. The views expressed by Yale Law School clinics are not necessarily those of the Yale Law School.
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APPENDIX: LIST OF AMICI
1. Madeleine K. Albright served as Secretary of State from 1997 to 2001. A refugee and naturalized American citizen, she served as U.S. Permanent Representative to the United Nations from 1993 to 1997. She has also been a member of the Central Intelligence Agency External Advisory Board since 2009 and of the Defense Policy Board since 2011, in which capacities she has received assessments of threats facing the United States.
2. John R. Allen served as Special Presidential Envoy for the Global Coalition to Counter ISIL from 2014 to 2015. Previously, he served as Commander of the International Security Assistance Force and U.S. Forces Afghanistan.
3. Jeremy Bash served as Chief of Staff at the U.S. Department of Defense from 2011 to 2013, and as Chief of Staff at the Central Intelligence Agency from 2009 to 2011.
4. Rand Beers served as Deputy Homeland Security Advisor to the President of the United States from 2014 to 2015.
5. Daniel Benjamin served as Ambassador-at-Large for Counterterrorism at the U.S. State Department from 2009 to 2012.
6. Antony Blinken served as Deputy Secretary of State from 2015 to January 20, 2017. He also served as Deputy National Security Advisor to the President of the United States from 2013 to 2015.
7. R. Nicholas Burns served as Under Secretary of State for Political Affairs from 2005 to 2008. He previously served as U.S. Ambassador to NATO and as U.S. Ambassador to Greece.
8. William J. Burns served as Deputy Secretary of State from 2011 to 2014. He previously served as Under Secretary of State for Political Affairs from 2008 to 2011, as U.S. Ambassador to Russia from 2005 to 2008, as Assistant Secretary of State for Near Eastern Affairs from 2001 to 2005, and as U.S. Ambassador to Jordan from 1998 to 2001.
9. James Clapper served as U.S. Director of National Intelligence from 2010 to January 20, 2017.

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10. David S. Cohen served as Under Secretary of the Treasury for Terrorism and Financial Intelligence from 2011 to 2015 and as Deputy Director of the Central Intelligence Agency from 2015 to January 20, 2017.
11. Eliot A. Cohen served as Counselor of the U.S. Department of State from 2007 to 2009.
12. Ryan Crocker served as U.S. Ambassador to Afghanistan from 2011 to 2012, U.S. Ambassador to Iraq from 2007 to 2009, U.S. Ambassador to Pakistan from 2004 to 2007, U.S. Ambassador to Syria from 1998 to 2001, U.S. Ambassador to Kuwait from 1994 to 1997, and U.S. Ambassador to Lebanon from 1990 to 1993.
13. Daniel Feldman served as U.S. Special Representative for Afghanistan and Pakistan from 2014 to 2015, Deputy U.S. Special Representative for Afghanistan and Pakistan from 2009 to 2014, and previously Director for Multilateral and Humanitarian Affairs at the National Security Council.
14. Jonathan Finer served as Chief of Staff to the Secretary of State from 2015 until January 20, 2017, and Director of the Policy Planning Staff at the U.S. State Department from 2016 until January 20, 2017.
15. Michèle Flournoy served as Under Secretary of Defense for Policy from 2009 to 2013.
16. Robert S. Ford served as U.S. Ambassador to Syria from 2011 to 2014, as Deputy Ambassador to Iraq from 2009 to 2010, and as U.S. Ambassador to Algeria from 2006 to 2008.
17. Suzy George served as Deputy Assistant to the President and Chief of Staff and Executive Secretary to the National Security Council from 2014 to 2017.
18. Phil Gordon served as Special Assistant to the President and White House Coordinator for the Middle East, North Africa and the Gulf from 2013 to 2015, and Assistant Secretary of State for European and Eurasian Affairs from 2009 to 2013.
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19. Avril D. Haines served as Deputy National Security Advisor to the President of the United States from 2015 to January 20, 2017. From 2013 to 2015, she served as Deputy Director of the Central Intelligence Agency.
20. General (ret.) Michael V. Hayden, USAF, served as Director of the Central Intelligence Agency from 2006 to 2009. From 1995 to 2005, he served as Director of the National Security Agency.
21. Christopher R. Hill served as Assistant Secretary of State for East Asian and Pacific Affairs from 2005 to 2009. He also served as U.S. Ambassador to Macedonia, Poland, the Republic of Korea, and Iraq.
22. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.
23. Prem Kumar served as Senior Director for the Middle East and North Africa on the National Security Council staff of the White House from 2013 to 2015.
24. Marcel Lettre served as Under Secretary of Defense for Intelligence from 2015 to 2017.
25. Sen. Richard Lugar served as U.S. Senator for Indiana from 1977 to 2013, and as Chairman of the Senate Committee on Foreign Relations from 1985 to 1987 and 2003 to 2007, and as ranking member of the Senate Committee on Foreign Relations from 2007 to 2013.
26. John E. McLaughlin served as Deputy Director of the Central Intelligence Agency from 2000 to 2004 and as Acting Director in 2004. His duties included briefing President-elect Bill Clinton and President George W. Bush.
27. 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.
28. Janet A. Napolitano served as Secretary of Homeland Security from 2009 to 2013.
29. James C. O’Brien served as Special Presidential Envoy for Hostage Affairs from 2015 to January 20, 2017. He served in the State Department from
c

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1989 to 2001, including as Principal Deputy Director of Policy Planning and as Special Presidential Envoy for the Balkans.
30. Matthew G. Olsen served as Director of the National Counterterrorism Center from 2011 to 2014.
31. Leon E. Panetta served as Secretary of Defense from 2011 to 2013. From 2009 to 2011, he served as Director of the Central Intelligence Agency.
32. Jeffrey Prescott served as Special Assistant to the President and Senior Director for Iran, Iraq, Syria and the Gulf States from 2015 to 2017.
33. Samantha J. Power served as U.S. Permanent Representative to the United Nations from 2013 to January 20, 2017. From 2009 to 2013, she served as Senior Director for Multilateral and Human Rights on the National Security Council.
34. Susan E. Rice served as U.S. Permanent Representative to the United Nations from 2009 to 2013 and as National Security Advisor from 2013 to January 20, 2017.
35. Anne C. Richard served as Assistant Secretary of State for Population, Refugees and Migration from 2012 to January 20, 2017.
36. Kori Schake served as the Deputy Director for Policy Planning at the U.S. State Department from December 2007 to May 2008. Previously, she was the director for Defense Strategy and Requirements on the National Security Council in President George W. Bush’s first term.
37. Eric P. Schwartz served as Assistant Secretary of State for Population, Refugees and Migration from 2009 to 2011. From 1993 to 2001, he was responsible for refugee and humanitarian issues on the National Security Council, ultimately serving as Special Assistant to the President for National Security Affairs and Senior Director for Multilateral and Humanitarian Affairs.
38. Wendy R. Sherman served as Under Secretary of State for Political Affairs from 2011 to 2015.
d

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39. Vikram Singh served as Deputy Special Representative for Afghanistan and Pakistan from 2010 to 2011 and as Deputy Assistant Secretary of Defense for Southeast Asia from 2012 to 2014.
40. James B. Steinberg served as Deputy National Security Adviser from 1996 to 2000 and as Deputy Secretary of State from 2009 to 2011.
41. Jake Sullivan served as National Security Adviser to the Vice President from 2013 to 2014. From 2011 to 2013, he served as Director of the Policy Planning Staff at the U.S. State Department.
42. William Wechsler served as Deputy Assistant Secretary for Special Operations and Combating Terrorism at the U.S. Department of Defense from 2012 to 2015.
43. Samuel M. Witten served as Principal Deputy Assistant Secretary of State for Population, Refugees, and Migration from 2007 to 2010. From 2001 to 2007, he served as Deputy Legal Adviser at the State Department.
e

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CERTIFICATE OF SERVICE I, John Doroghazi, hereby certify that on May 19, 2017, the foregoing document was filed and served through the CM/ECF system.

Dated May 19, 2017

Respectfully Submitted,
/s/ John Doroghazi John Doroghazi Jonathan M. Freiman Tahlia Townsend WIGGIN AND DANA LLP 265 Church Street, P.O. Box 1832 New Haven, CT 06508-1832 203-498-4584
Counsel for Amici Curiae

 
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs,

Case No. 17-10310

v.

Hon. Victoria A. Roberts

DONALD TRUMP, President of the Untied States, et al.,

Defendants. /
PROPOSED BRIEF OF AMICI CURIAE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Johnathan J. Smith Aziz Huq Muslim Advocates P.O. Box 71080 Oakland, CA 94612 415-692-1484 johnathan@muslimadvocates.org aziz.huq@gmail.com

/s/ Dina Hayes (IL Bar No. 6270400) Arnold & Porter Kaye Scholer LLP 70 West Madison Street, Suite 4200 Chicago, Illinois 60602-4321 (312) 583-2553 dina.hayes@apks.com
Attorney for Amici Curiae

Of Counsel to Amici Curiae

Dated: May 19, 2017

2:17-cv-10310-VAR-SDD Doc # 95-1 Filed 05/19/17 Pg 3 of 32 Pg ID 1329
CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Civil Procedure 7.1, Muslim Advocates, American Muslim Health Professionals, Muppies, Inc., and Network of Arab-American Professionals state the following: (1) they have no parent corporations; and (2) There are no publicly held corporations that own 10% or more of their stock.
i

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TABLE OF CONTENTS
I. Judicial Review of the Constitutionality of the Second Executive Order is not Limited to the Face of the Order 5

Page

A. Immigration Decisions Are Subject to Constitutional Review.............5
B. Neither Kleindienst v. Mandel nor Fiallo v. Bell Foreclose Careful Judicial Scrutiny of the Second Executive Order’s Constitutionality ....................................................................................7
II. Rescission Of The First Executive Order Did Not ‘Wipe The Slate Clean’ For
Establishment Clause Purposes 13

III. Evidence of Unconstitutional Motive Exists On The Face of the Executive Orders As Well As In The Context of Their Promulgation 16

IV. The Executive Order Disproportionately Injures Muslims, Including U.S. Citizens and Longtime U.S. Residents 21

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TABLE OF AUTHORITIES

CASES

Page(s)

Am. Acad. of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009) .................................................................................9

Am. Civil Liberties Union of Kentucky v. Grayson Cty., Ky., 591 F.3d 837 (6th Cir. 2010) ..............................................................................12

Am. Civil Liberties Union of Ohio Found., Inc. v. DeWeese, 633 F.3d 424 (6th Cir. 2011) ........................................................................12, 16

Bertrand v. Sava, 684 F.2d 204 (2d Cir. 1982) .................................................................................9

Cardenas v. United States, 826 F.3d 1164 (9th Cir. 2016) ..............................................................................8

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985)..............................................................................................9

Department of Agriculture v. Moreno, 413 U.S. 528 (1973)..............................................................................................9

Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) ................................................................................7

Goss v. Bd. of Educ. of Knoxville, 373 U.S. 683 (1963)............................................................................................12

Guinn v. United States, 238 U.S. 347 (1915)............................................................................................12

Hays v. Louisiana, 936 F. Supp. 360 (W.D. La. 1996) .....................................................................13

Heikkila v. Barber, 345 U.S. 229 (1953)..............................................................................................5

I.N.S. v. St. Cyr, 533 U.S. 289 (2001)..........................................................................................5, 6

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Int’l Refugee Assistance Project v. Trump, No. 8:17-cv-00361-TDC (D. Md. Mar. 16, 2017)..............................................13
Kerry v. Din, 135 S. Ct. 2128 (2015)......................................................................................8, 9
Kleindienst v. Mandel, 408 U.S. 753 (1972)............................................................................6, 7, 8, 9, 11
Lowe v. S.E.C., 472 U.S. 181 (1985)..............................................................................................8
McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005)......................................................................................11, 16
Morfin v. Tillerson, 851 F.3d 710 (7th Cir. 2017) ................................................................................8
Nguyen v. I.N.S., 533 U.S. 53 (2001)........................................................................................10, 11
Nishimura Ekiu v. United States, 142 U.S. 651 (1892)..............................................................................................5
Nixon v. Herndon, 273 U.S. 536 (1927)............................................................................................12
Radio Ass’n on Defending Airwave Rights, Inc. v. U.S. Dep’t of Transp., 47 F.3d 794 (6th Cir. 1995) ..................................................................................9
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000)............................................................................................11
Terry v. Adams, 345 U.S. 461 (1953)............................................................................................12
United States v. Jung Ah Lung, 124 U.S. 621 (1888)..............................................................................................5
United States v. Windsor, 133 S. Ct. 2675 (2013)..........................................................................................9
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Universal Muslim Association of America, Inc. v. Trump, No. 1:17-cv-00537-TSC (D. D.C. Apr. 11, 2017), ECF No. 36, https://goo.gl/G5Sbby .........................................................................................15
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ..............................................................................9
Zadvydas v. Davis, 533 U.S. 678 (2001)..............................................................................................5
OTHER AUTHORITIES
Adrienne Mahsa Varkiani, Trump’s Muslim ban is tearing apart families ................................................................................................................17
First Amendment................................................................................................4, 6, 7
Fifteenth Amendment ..............................................................................................12
Black’s Law Dictionary 160–61 (5th ed. 1979).........................................................8
Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees, CBN News (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-fileexclusive-president-trump-says-persecuted-christians-will-begiven-priority-as-refugees...................................................................................14
Chad Groening, Silence over 'honor killing' stuns Islam critic ...............................16
Congress, Fiallo .......................................................................................................10
Department of Homeland Security, Fact Sheet: Aviation Security Enhancements for Select Last Point of Departure Airports with Commercial Flights to the United States, Mar. 21, 2107, https://www.dhs.gov/news/2017/03/21/fact-sheet-aviationsecurity-enhancements-select-last-point-departure-airports...............................17
Dictionary Of Modern English Usage 61 (1965) ......................................................8
Donald G. McNeil Jr., Trump’s Travel Ban, Aimed at Terrorists, Has Blocked Doctors, N.Y. TIMES (Feb. 6, 2017) .....................................................17
Executive Order 13,769 .............................................................................................3
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Executive Order 13,780, “Protecting the Nation from Foreign Terrorist Entry into the United States” .................................................................2
Executive Order 13,780, “Protecting the Nation from Foreign Terrorist Entry into the United States” ...................................3, 4, 5, 6, 11, 15, 16
Fed. R. App. P. 29..................................................................................................1, 3 Fed. R. Civ. P. 7 .....................................................................................................1, 3 L.A. TIMES (Jan. 27, 2017), http://www.latimes.com/world/la-fg-
refugees-order-reaction-20170127-story.html....................................................17 L.R. 7.1...............................................................................................................1, 2, 3 Nonie Darwish: Perverted Islamic Feminism, AFDI (Dec. 2, 2015),
http://afdi.us/nonie-darwish-perverted-islamic-feminism; .................................16 One News Now (July 14, 2008),
https://www.onenewsnow.com/politics-govt/2008/07/14/silenceover-honor-killing-stuns-islam-critic..................................................................16 Press Release, Donald Trump, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trumpstatement-on-preventing-muslim-immigration...................................................14 THINK PROGRESS (Jan. 30, 2017), https://thinkprogress.org/trumpmuslim-ban-families-8a62d8c688e ....................................................................17 US Stuck After Trump Executive Order, ABC NEWS (Jan. 31, 2017), http://abcnews.go.com/Health/children-refugees-planned-medicalcare-us-stuck-trump/story?id=45154920 ............................................................17
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INTEREST OF AMICI CURIAE This amici curiae brief is submitted on behalf of the amici described below. Amici are business, education, finance, healthcare, legal, science, technology, and other professional members of the American Muslim community directly harmed and stigmatized by the Executive Order. Muslim Advocates, a national legal advocacy and educational organization formed in 2005, works on the frontlines of civil rights to guarantee freedom and justice for Americans of all faiths. Muslim Advocates advances these objectives through litigation and other legal advocacy, policy engagement, and civic education. Muslim Advocates also serves as a legal resource for the American Muslim community, promoting the full and meaningful participation of Muslims in American public life. The issues at stake in this case directly relate to Muslim Advocates’ work fighting institutional discrimination against the American Muslim community. American Muslim Health Professionals (“AMHP”) works to improve the health of Americans. AMHP has three areas of focus: (1) health promotion and education; (2) professional development; and (3) state and national advocacy on public health issues. AMHP has been a leader in expanding healthcare coverage by hiring a team of state liaisons and working with interfaith communities through its “Connecting Americans to Coverage” campaign. AMHP has spearheaded many
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social justice initiatives including “EnabledMuslim,” an online platform that provides spiritual and social support for individuals and families impacted by disability. Its leadership also 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.
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.
Network of Arab-American Professionals (“NAAP”) is a professional organization grounded on the notion that all Arabs in America need to connect to
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advance the community. Through collective contribution to strengthen our individual and community standing, NAAP provides a channel for ArabAmericans 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.
INTRODUCTION Amici are physicians, lawyers, and professional members of the American Muslim and Arab-American communities directly harmed and stigmatized by the President’s March 6, 2017 Executive Order 13,780, “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Second Executive Order”) and its predecessor, the January 27, 2017 Executive Order 13,769 of the same title (the “First Executive Order”). Amici urge this Court to deny Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint seeking to enjoin and declare the Second Executive
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Order unlawful and invalid. That Order is unlawful on both constitutional and statutory grounds. Amici offer three points in opposition to Defendants’ Motion to Dismiss.
First, in analyzing the constitutionality of the Second Executive Order under the First Amendment, ordinary principles of constitutional review apply. Pursuant to those rules, a court may look beyond the face of the order to consider evidence of intent and effect. The Government’s assertion that it is immune from challenge based on unconstitutional motive or effect leans on a thin reed. Its demand for categorical deference in the immigration policy context cannot be squared with a long line of Supreme Court cases closely scrutinizing the constitutionality of immigration measures. Nor can it be squared with the Supreme Court’s repeated admonition that judicial review of Executive Branch action remains necessary and appropriate even when, as here, the government relies on national security concerns as a justification.
Second, the President’s Second Executive Order contains on its face a telltale expression of animus against Muslims. Specifically, the order relies on the specter of Muslims as distinctively likely to engage in “honor killings” of women as a justification. This is both irrelevant and superfluous to the government’s national security rationale and unfounded as a matter of fact with respect to
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immigrants to the United States. This facial evidence of animus is consistent with and further supports denying Defendants’ motion to dismiss.
Third, by creating and reinforcing ignorant, false, and hateful stereotypes about Muslims, the Second Executive Order impermissibly stigmatizes and harms American citizens on the basis of their religion and national origin. This harm is in addition to the many devastating effects on citizens and noncitizens that would flow directly from implementation of Section 2 of the Order.
ARGUMENT I. Judicial Review of the Constitutionality of the Second Executive Order
is not Limited to the Face of the Order A. Immigration Decisions Are Subject to Constitutional Review Contrary to the Government’s suggestions, Article III courts have long exercised judicial review over questions of constitutional and statutory law raised by federal immigration measures. See, e.g., Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892) (“An alien immigrant, prevented from landing by any such officer claiming authority to do so under an act of congress, and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful.”); United States v. Jung Ah Lung, 124 U.S. 621, 635 (1888) (directing admission of an alien on the ground that a statute requiring Chinese nationals to produce a certification for admission could also be satisfied by alternate evidence when that certification was “lost or stolen”) (internal citations
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omitted); see also Heikkila v. Barber, 345 U.S. 229, 236 (1953) (noting the “requirements under the Constitution” of due process in immigration removal). As a result, it is beyond dispute that today “immigration law . . . is subject to important constitutional limitations” even when it comes to the treatment of inadmissible aliens. Zadvydas v. Davis, 533 U.S. 678, 695 (2001).
Federal courts have exercised close scrutiny in cases involving challenges to the constitutionality of the means by which government immigration policy is implemented. In I.N.S. v. Chadha, for example, the Supreme Court held that the political branches must use “a constitutionally permissible means of implementing” the relevant policy. 462 U.S. 919, 941–42 (1983) (invalidating enforcement action against alien plaintiff on the basis of a structural constitutional limit on governmental power akin to the Establishment Clause); see also I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001) (construing the immigration statute to avoid conflict with the Suspension Clause).
The Supreme Court has also adjudicated challenges to immigration measures taking into consideration extrinsic evidence of the government’s motivations. In I.N.S. v. Pangilinan, for example, the Court considered the allegation that unconstitutional racial animus had motivated U.S. government officials’ decisions to temporarily suspend naturalizations in the Philippines after World War II. 486 U.S. 875, 886 (1988). In concluding that the respondents’ claims were without
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merit, the Court did not question its authority to examine evidence of the motivations underlying the challenged immigration actions. Rather, the Court looked to “the historical record” to determine whether “the actions at issue . . . were motivated by any racial animus.” Id. (concluding ultimately that the decisions in question were taken for legitimate reasons, “not because of hostility towards Filipinos”). So too here the Court may look beyond the face of the Second Executive Order to evidence of the President’s intent in excluding certain Muslim immigrants.
B. Neither Kleindienst v. Mandel nor Fiallo v. Bell Foreclose Careful Judicial Scrutiny of the Second Executive Order’s Constitutionality
The Government asserts that Plaintiffs’ First Amendment claims are precluded by Kleindienst v. Mandel, 408 U.S. 753 (1972), and relies on Mandel for the proposition that, in the immigration context, the government need only provide a “facially legitimate and bona fide” reason for its decision such that a court may not inquire into evidence of an unconstitutional motive. Def.’s Mot. to Dismiss 17-19. Mandel does not, in fact, aid the Government. Rather, the Government’s position contradicts the language on which it relies, ignores the facts of Mandel, and overlooks subsequent precedent.
First, the language from Mandel itself calls for consideration of evidence of motive. “Bona fide” means: “In or with good faith; honestly, openly, and
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sincerely; without deceit or fraud. . . . Real, actual, genuine, and not feigned.” Black’s Law Dictionary 160–61 (5th ed. 1979) (emphasis added); see also H.W. Fowler, A Dictionary Of Modern English Usage 61 (1965) (“bona fide” is a Latin ablative meaning “in good faith”); see also Lowe v. S.E.C., 472 U.S. 181, 208 (1985) (explaining that in a statutory context, the term “bona fide” “translates best to ‘genuine’”). Of course, a court must necessarily consider evidence of the context and all of the circumstances to determine whether a reason is bona fide versus a pretext.
The context of Mandel underscores this point. The case concerned the “narrow issue whether the First Amendment confers upon . . . , professors [who] wish to hear, speak, and debate with Mandel [a non-resident alien] the ability . . . to compel the Attorney General to allow [that alien’s] admission.” 408 U.S. at 762. The Mandel Court declined to hold broadly that Congress had delegated to the Executive “sole and unfettered discretion” to deny admission to non-resident aliens without giving a legitimate reason. Id. at 769. Rather, the Court held that Mandel’s admission had been declined because he had “engaged in activities beyond the stated purposes” of his admission on earlier occasions. Id. at 758 & n.5. Engaging in such activities beyond the purpose of his admission, the Court held, was a “facially legitimate and bona fide” reason for refusing to grant a waiver of inadmissibility grounds. Id. at 769. The Court therefore declined to undertake a
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fresh “balancing” of First Amendment interests against state interests or otherwise “look behind” the inadmissibility decision. Id. at 770.
Accordingly, the Mandel Court found that there was no question that the government in fact had “facially legitimate and bona fide” reasons for finding inadmissibility, and cited an affidavit by the alien’s own counsel conceding the existence of the past “noncompliance” with visa conditions. Id. at 758 n.5. In no way did the Court indicate that the government need only state some pretextual yet facially legitimate and bona fide reason for its action to shield itself from any judicial review of unconstitutional motives. Contrary to the Government’s position, the Mandel Court explicitly declined to endorse the Government’s argument that it had “sole and unfettered discretion” over admission of aliens. Id. at 769.
Subsequent precedent also confirms Mandel’s circumscribed reach and its consistency with judicial consideration of governmental motivation. In particular, Justice Kennedy’s controlling opinion in Kerry v. Din, 135 S. Ct. 2128 (2015), cited Mandel as controlling authority, and directed courts to “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 2141. As the Sixth Circuit has pointed out: “[T]he Supreme Court has repeatedly allowed for meaningful judicial review of non-substantive
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immigration laws where constitutional rights are involved. Kleindienst did not change these long-standing traditions.” See Detroit Free Press v. Ashcroft, 303 F.3d 681, 687 (6th Cir. 2002).
Other courts of appeals applying Din have also required that the government point to specific record evidence that a legal justification permitted the challenged action. Circuit courts have, moreover, allowed petitioners to rebut such justification with evidence of bad faith. See, e.g., Morfin v. Tillerson, 851 F.3d 710, 713 (7th Cir. 2017); Cardenas v. United States, 826 F.3d 1164, 1172 (9th Cir. 2016). Courts also have insisted that discrimination “against a particular race or group” “would not be ‘legitimate and bona fide’ within the meaning of Kleindienst v. Mandel.” Bertrand v. Sava, 684 F.2d 204, 212 (2d Cir. 1982); accord Am. Acad. of Religion v. Napolitano, 573 F.3d 115, 136–37 (2d Cir. 2009) (discussing Mandel, and explaining that “a well supported allegation of bad faith . . . would render the decision not bona fide”); see also Washington v. Trump, 847 F.3d 1151, 1162 (9th Cir. 2017) (finding that Mandel did not control its analysis of the First Executive Order).
In immigration law, as in all other domains of federal regulation, government action based on “negative attitudes, or fear” toward a protected class cannot survive even a minimal form of constitutional scrutiny. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985); accord United States v.
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Windsor, 133 S. Ct. 2675, 2693 (2013) (“̒[A] bare . . . desire to harm a politically unpopular group cannot justify disparate treatment of that group”) (quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534–35 (1973)); accord Radio Ass’n on Defending Airwave Rights, Inc. v. U.S. Dep’t of Transp., 47 F.3d 794, 808 (6th Cir. 1995).
Furthermore, the Government’s invocations of Fiallo v. Bell are misplaced. Fiallo concerned a differential in the “preferential treatment” accorded by statute to children of U.S. citizen and resident mothers versus U.S. citizen and resident fathers. 430 U.S. 787 (1977). Upholding those preferences, Fiallo recognized a “special judicial deference to congressional policy choices in the immigration context.” Id. at 793. But the Court was at pains to affirm “judicial responsibility under the Constitution even with respect to the power of Congress to regulate the admission and exclusion of aliens . . . .” Id. at 793 n.5. That responsibility is only heightened where, as here, there is “an affirmative showing of bad faith.” Din, 135 S. Ct. at 2141 (Kennedy, J., concurring).
Like Mandel, Fiallo concerned judicial review of a policy decision that necessitated a balancing between constitutional interests and competing legitimate governmental concerns. In leaving such discretionary judgments to Congress, Fiallo said nothing about government action based on improper bias. It is one thing to say that courts should not second-guess complex discretionary decisions
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based on plural competing (but legitimate) policy concerns. It is quite another to say government can act on the basis of constitutionally proscribed animus.
The Government’s invocation of Fiallo, moreover, ignores subsequent precedent in which the Supreme Court has engaged in exacting scrutiny of similar statutory classifications based on gender. These subsequent cases contradict the Government’s contention that Fiallo once stood for, or now should be considered to stand for, judicial acquiescence in discriminatory state action.
In Miller v. Albright, the Court rejected an Equal Protection challenge to another gender classification in the derivative citizenship statute. 523 U.S. 420 (1998). Miller cannot be reconciled with the Government’s gloss on Fiallo for two reasons. First, the opinion of the Court in Miller upheld the classification only after carefully analyzing the law and determining that Congress had “a solid basis” for classifying by gender. 523 U.S. at 443. Second, a majority of the Justices in Miller declined to be guided by Fiallo. See, e.g., id. at 429. Only two Justices, in a separate concurring opinion, invoked Fiallo for the broad proposition that “[j]udicial power over immigration and naturalization is extremely limited.” Id. at 455 (Scalia, J., concurring). The Government reads Fiallo for a proposition that only two of nine members of the Court accepted in Miller. In so doing, it once more seeks a departure from established law rather than an application thereof.
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The Court returned to the question whether the Equal Protection Clause clashed with the statutory framework for derivative citizenship in Nguyen v. I.N.S., 533 U.S. 53 (2001). Contrary to the Government’s submission, the Nguyen Court did not limit its analysis to the face of the statute. To the contrary, the Court adjudicated a noncitizen’s gender-based Equal Protection challenges and carefully scrutinized the “important governmental interest[s]” at stake before concluding that it could uphold the challenged gender classification. Id. at 64.
Thus even when acting with clear statutory authority, and even when purporting to act in the interest of promoting public order, the political branches’ power over immigration matters is not immune from judicial review. Compliance with the Constitution is not a matter of merely checking a box by supplying some reason for a decision, no matter how unfounded or post hoc. And neither Mandel nor Fiallo is authority for the Government’s position that an immigration policy decision motivated by animus can be insulated from judicial review by the facile expedient of tagging on some notionally valid policy ground. II. Rescission Of The First Executive Order Did Not ‘Wipe The Slate
Clean’ For Establishment Clause Purposes The mere fact that a Second Executive Order has replaced the first does not foreclose Plaintiffs’ arguments that the government’s animus impermissibly motivated the Second Executive Order just like the first. The Supreme Court has made clear that the government cannot immunize an impermissibly-motivated
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policy from judicial scrutiny merely by replacing it with a close substitute that purports to have a legitimate purpose. In McCreary, the Court invalidated exactly such a substitute policy on Establishment Clause grounds. See McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 871 (2005). Similarly, in the school prayer context, the Court has held that where the state replaces an impermissible policy with a new policy that has the predictably same effect, the state has failed to “disentangle itself from the religious messages” of the original policy. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 305–06 (2000).
The Sixth Circuit has similarly recognized that a constitutionally suspect act cannot be immunized by the expediency of withdrawal and reenactment. Am. Civil Liberties Union of Ohio Found., Inc. v. DeWeese, 633 F.3d 424, 433 (6th Cir. 2011) (“Defendant’s history of Establishment Clause violation casts aspersions on his purportedly secular purpose in hanging the poster in his courtroom.”); Am. Civil Liberties Union of Kentucky v. Grayson Cty., Ky., 591 F.3d 837, 847 (6th Cir. 2010) (noting the importance of the “history” of a challenged government action in the Establishment Clause context).
These are not the only contexts in which the tactic of reenactment has failed to successfully cleanse an unconstitutional motive. In the so-called “white primary cases,” Texas first employed an all-white primary that was invalidated under the Fifteenth Amendment. Nixon v. Herndon, 273 U.S. 536 (1927). After this system
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was struck down, id. at 541, the state replaced it with a private selection process that, although it employed a different method, “[brought] into being . . . precisely the kind of election that the Fifteenth Amendment seeks to prevent.” Terry v. Adams, 345 U.S. 461, 469 (1953). The Court invalidated the replacement method of election as a flagrant attempt “to defeat the purposes of the Fifteenth Amendment.” Id.
In other Equal Protection contexts, the Court similarly has refused to allow a challenged policy to escape close scrutiny merely because an earlier, unconstitutional iteration had been revoked, withdrawn, or replaced. See, e.g., Guinn v. United States, 238 U.S. 347, 364–65 (1915) (invalidating Alabama’s “grandfather” voting clause on the ground that it “inherently brings . . . into existence” the same race-based prohibition that previously existed in Alabama law); see also Goss v. Bd. of Educ. of Knoxville, 373 U.S. 683, 686–87 (1963) (rejecting a transfer system included in school desegregation plans because it “lends itself to perpetuation of segregation”); Hays v. Louisiana, 936 F. Supp. 360, 369 (W.D. La. 1996) (invalidating state’s second redistricting plan on a finding that both it and the earlier, invalid plan, were motivated by the same race-based concern).
These cases reflect the common-sense notion that impermissible motive does not evaporate once a policy is challenged, withdrawn, and replaced with a new
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iteration. Constitutional prohibitions against state action with an impermissible motive would be of little effect if a state actor could simply withdraw and re-enact a measure once accused of bias, and thereby obtain a shield from judicial challenge. III. Evidence of Unconstitutional Motive Exists On The Face of the
Executive Orders As Well As In The Context of Their Promulgation The animus-laden comments by the President and those tasked with drawing up and implementing the First and Second Executive Orders are by this point wellknown. See, e.g., Mem. Op., at 27–31, Int’l Refugee Assistance Project v. Trump, No. 8:17-cv-00361-TDC (D. Md. Mar. 16, 2017) (summarizing statements made by Defendants that the District Court accepted as “explicit, direct statements of President Trump’s animus towards Muslims”). It is less well appreciated that both orders contain evidence of an unconstitutional purpose on their face in the form of explicit invocation of stereotypes linking Muslims as a group to gender-based violence. The text of the First Executive Order was riddled with evidence of antiMuslim bias. For example, in multiple provisions relating to refugee admissions, the First Executive Order created an express preference for adherents of “minority” religions. First Executive Order § 5(b). This was intended to benefit Christian minorities in Muslim-majority countries (from which the United States accepts large numbers of refugees), as the President admitted in contemporaneous
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comments.1 Moreover, the First Executive Order described its purpose in terms
that were strikingly similar to language used in then-candidate Donald Trump’s
infamous December 7, 2015 press release calling for a “total and complete
shutdown on Muslims entering the United States.”2 Specifically, the final
paragraph of Section 1 of the First Executive Order stated:
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.
Each sentence of this paragraph closely tracked rhetoric in the December 7,
2015 press release. The reference to those bearing “hostile attitudes” toward the
United States, for example, tracked a statement in the press release that “there is
great hatred towards Americans by large segments of the Muslim population.” Id.
(emphasis added). Similarly, the references to those “who would place violent
1 David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees, CBN News (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusive-president-trumpsays-persecuted-christians-will-be-given-priority-as-refugees. 2 Press Release, Donald Trump, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-onpreventing-muslim-immigration.
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ideologies over American law” and to those who engage in “violence against women, or the persecution of those who practice religions different from their own,” tracked the statements in the press release accusing a majority of Muslims of believing that Muslims in America should have the choice to be governed by Sharia law (over American law), which the press release characterized as an ideology promoting violence against women and persecution of non-Muslims. Id.
In an effort to scrub the Muslim ban policy of its most blatant outward indicia of anti-Muslim bias, some of the language discussed above was excised in the Second Executive Order. Tellingly, however, notwithstanding the considerable public and judicial criticism of the First Executive Order’s manifest anti-Muslim bias, the Second Executive Order retains clear anti-Muslim prejudice on its face, requiring the Secretary of Homeland Security to collect and publish data on foreigners’ gender-based violence and “honor crimes” committed in the United States. Second Executive Order § 11. This reference to gender-based violence echoes the language in the First Executive Order stating that “the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women).” “Honor crimes” have nothing to do with the national security justification for the Order, but rather are code for bias against Muslims as uncivilized.
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As Professor Lila Abu-Lughod of Columbia University explains in a declaration attached to this brief, “the term ‘honor killing,’ or ‘honor crime,’ has become a means of signaling a class of violence purportedly linked to Islam and committed by Muslim men,” and therefore “a way of stigmatizing and demeaning Islam as a faith and Muslim men as a group as uncivilized and dangerous.”3 As Professor Abu-Lughod explains, “Neither Islamic law nor its religious authorities, however, uniformly or consistently condone honor crimes.” Id. ¶ 14. Furthermore, “the term ‘honor crime’ is commonly invoked by individuals and groups with an anti-Muslim agenda because it reinforces the [false] stigmatization of Muslims as violent and backward.” Id. ¶ 15.4 Its presence in both Executive Orders— instruments that are purportedly about national security rather than domestic violence—is evidence of the invidious stereotypes about Muslims that underpin the Muslim ban policy.
The Second Executive Order seeks to erase its roots as a Muslim ban by declaring by fiat that the First Executive Order “did not provide a basis for discriminating for or against members of any particular religion.” Second
3 Decl. of Prof. Lila Abu-Lughod. 4 For examples of the invocation of the idea of honor killing in broad and stereotyping antiMuslim arguments. see Pamela Geller, Nonie Darwish: Perverted Islamic Feminism, AFDI (Dec. 2, 2015), http://afdi.us/nonie-darwish-perverted-islamic-feminism; Chad Groening, Silence over 'honor killing' stuns Islam critic, One News Now (July 14, 2008), https://www.onenewsnow.com/politics-govt/2008/07/14/silence-over-honor-killing-stuns-islamcritic.
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Executive Order § 1(b)(4). But “the world is not made brand new every morning,” and this Court should reject any invitation to “turn a blind eye to the context in which [the] policy arose.” McCreary Cty., 545 U.S. at 866 (citations omitted) (alteration in original).; see also Am. Civil Liberties Union of Ohio Found., Inc. v. DeWeese, 633 F.3d 424, 431–32 (6th Cir. 2011) (Clay, J.) (“[R]eviewing courts must look with the eye of an observer familiar with the history of the government's actions and competent to learn [what] history has to show.”). As evidenced by the plain text of the Executive Orders, the anti-Muslim animus that pervaded thencandidate Trump’s thinking and rhetoric during the presidential campaign continues to drive the policy reflected in the Second Executive Order.
Finally, the fact that this Executive Order is infected with impermissible animus does not preclude further executive action in this field. Indeed, the Government has taken actions to prevent terrorism through international aviation since the first injunctions were issued against the Executive Orders at issue here.5 Each executive action is judged on its own merits. As explained above, there is evidence of a common impermissible motive behind both the First and the Second Executive Orders. Future policy decisions must be judged on their own merits— and there is simply no reason to assume that the Government will not be able to
5 See, e.g., Department of Homeland Security, Fact Sheet: Aviation Security Enhancements for Select Last Point of Departure Airports with Commercial Flights to the United States, Mar. 21, 2107, https://www.dhs.gov/news/2017/03/21/fact-sheet-aviation-security-enhancements-selectlast-point-departure-airports.
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apply its policy expertise appropriately in the future to fashion new policies
responsive to real security threats.
IV. The Executive Order Disproportionately Injures Muslims, Including U.S. Citizens and Longtime U.S. Residents If allowed to be enforced, the Executive Order will again immediately cause
more suffering to U.S. citizens and Legal Permanent Residents with family
members excluded or exiled by the ban; to American civil society and religious
groups wishing to invite scholars and religious leaders; and universities and
businesses seeking to recruit the best available talent. As American Muslims,
Amici are acutely threatened by these injuries.6
Amici also suffer an additional injury as a result of the stigma that has
attached to all American Muslims (and those perceived as Muslim as a
consequence of their ethnicity), unfairly and irrationally, as a result of the First and
Second Executive Orders and the public pronouncements of the President and his
advisors in connection therewith. Contrary to the misperception spread by the
6 See e.g., Shashank Bengali, Nabih Bulos, and Ramin Mostaghim, Families hoping to make the U.S. their home scramble to rearrange their lives, L.A. TIMES (Jan. 27, 2017), http://www.latimes.com/world/la-fg-refugees-order-reaction-20170127-story.html (detailing the struggles of families with children affected by the Executive Order); Adrienne Mahsa Varkiani, Trump’s Muslim ban is tearing apart families, THINK PROGRESS (Jan. 30, 2017), https://thinkprogress.org/trump-muslim-ban-families-8a62d8c688e (documenting the experience of individuals affected by the Executive Order); Gillian Mohney, Children and Refugees Who Planned Medical Care in the US Stuck After Trump Executive Order, ABC NEWS (Jan. 31, 2017), http://abcnews.go.com/Health/children-refugees-planned-medical-care-us-stucktrump/story?id=45154920 (discussing the complications suffered by children who had planned to seek medical care in the United States); Donald G. McNeil Jr., Trump’s Travel Ban, Aimed at Terrorists, Has Blocked Doctors, N.Y. TIMES (Feb. 6, 2017), https://nyti.ms/2lg7tu1 (detailing difficulties caused by the Executive Order to medical professional working abroad).
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“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. Today, Muslims represent 1% of the U.S. population. Muslims have expended their blood, sweat, and tears building and defending the United States. In fact, today, more than 5,000 Muslims serve in the U.S. military, and many have given their lives in recent wars in defense of U.S. 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.7
7 See generally Kambiz Ghanea Bassiri, A History of Islam in America: From the New World to the New World Order (Cambridge 2010).
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CONCLUSION AND RELIEF REQUESTED For the foregoing reasons, Amici respectfully request that the Court deny Defendants’ Motion to Dismiss.

Respectfully submitted,
/s/ Dina Hayes (IL Bar No. 6270400) Arnold & Porter Kaye Scholer LLP 70 West Madison Street, Suite 4200 Chicago, Illinois 60602-4321 (312) 583-2553 dina.hayes@apks.com

Attorney for Amici Curiae

Johnathan J. Smith Aziz Huq Muslim Advocates P.O. Box 71080 Oakland, CA 94612 415-692-1484 johnathan@muslimadvocates.org aziz.huq@gmail.com
Jonathan S. Martel Bethan R. Jones Arnold & Porter Kaye Scholer LLP 601 Massachusetts Ave., NW Washington, DC 20001-3743 202-942-5000 jonathan.martel@apks.com bethan.jones@apks.com

Anton Ware Arnold & Porter Kaye Scholer LLP Three Embarcadero Center10th Floor San Francisco, CA 94111-4024 415-471-3100 anton.ware@apks.com
Andrew D. Bergman Arnold & Porter Kaye Scholer LLP 700 Louisiana Street Suite 1600 Houston, TX 77002 713- 576-2430 andrew.bergman@apks.com

Of Counsel to Amici Curiae

Dated: May 19, 2017

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CERTIFICATE COMPLIANCE

I hereby certify that, pursuant to Fed. R. Civ. P. 32(a)(5) and L.R. 5.1 the

attached brief is double spaced, uses a proportionately spaced typeface of 14 points

or more, and contains a total of 5,016 words based on the word count program in

Microsoft Word.

Dated: May 19, 2017

By: /s/ Dina Hayes Dina Hayes

 
 2:17-cv-10310-VAR-SDD Doc # 97-1 Filed 05/22/17 Pg 2 of 39 Pg ID 1433

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs,

Case No. 2:17-cv-10310-VAR-SDD

v.

Honorable Victoria A. Roberts

DONALD TRUMP, et al.,

Mag. J. Stephanie D. Davis

Defendants.

BRIEF OF AMICI CURIAE CONSTITUTIONAL LAW PROFESSORS IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS

Kimberly Thomas (Mich. Bar #P66643) 701 South State Street 3032 South Hall Ann Arbor, MI 48109 (734) 647-4054 kithomas@umich.edu

SIMPSON THACHER & BARTLETT LLP Abram Ellis (N.Y. Bar #4402962) 900 G Street, Northwest Washington, DC 20001 (202) 636-5579 aellis@stblaw.com
Alan Turner (N.Y. Bar #4000147) Reena Mittelman (N.Y. Bar #5219761) Jerry Fang (N.Y. Bar #5417191) Patricia Yan (N.Y. Bar #5499173) 425 Lexington Avenue New York, NY 10017 (212) 455-2000 aturner@stblaw.com reena.mittelman@stblaw.com jerry.fang@stblaw.com patricia.yan@stblaw.com

Counsel for Amici Curiae

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TABLE OF CONTENTS Page
STATEMENT OF THE ISSUES PRESENTED................................................... ii STATEMENT OF MOST APPROPRIATE AUTHORITIES............................... iii INDEX OF AUTHORITIES .............................................................................. iv INTERESTS OF AMICI CURIAE .......................................................................1 SUMMARY OF ARGUMENT ...........................................................................3 ARGUMENT .....................................................................................................4
I. United States Law Once Condoned Immigration Exclusion Based On Race And Ethnicity But Has Since Rejected Such Invidious Actions.............................................................................4
II. The Supreme Court Has Recognized Meaningful Limits On The Political Branches’ Authority Over Immigration ...................... 10
III. Challenges To Immigration Decisions Are Justiciable ..................... 15 IV. Sections 1182(f) And 1185(a), Like Other Statutory Provisions,
Must Be Construed To Avoid Raising Serious Constitutional Questions ...................................................................................... 20 V. The Risks Of Undue Deference: A Return To Lessons From History.......................................................................................... 23 CONCLUSION ................................................................................................ 25
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STATEMENT OF THE ISSUES PRESENTED 1. How the assertion of an unchecked Executive power in the immigration
context to justify the Executive Order is informed by the historical legal context that demonstrates the dangers of judicial deference to Executive immigration actions that discriminate on the basis of nationality and race. 2. What the scope of deference to the Executive should be, given the critical role of the judiciary in our constitutional system of reviewing and checking Executive actions alleged to be unconstitutional or to exceed delegated Congressional authority, whether or not those actions relate to immigration or national security. 3. Whether the claims here are justiciable, given that a variety of other challenges to governmental immigration decisions and actions have been found to be justiciable, and every other court to examine the Executive Order at issue here has reached the merits. 4. Whether the congressional delegation of authority to the President under Sections 1182(f) and 1185(a) of the Immigration and Nationality Act can be read to authorize the President to exercise powers in a manner that discriminates unconstitutionally.
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STATEMENT OF MOST APPROPRIATE AUTHORITIES Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986) Allende v. Schultz, 845 F.2d 1111 (1st Cir. 1988) Aziz v. Trump, --- F. Supp. 3d ---, No. 1:17-cv-116, 2017 WL 580855 (E.D. Va.
Feb. 13, 2017) Doe v. Trump, --- F. Supp. 3d ---, No. 17-cv-112, 2017 WL 975996 (W.D. Wis.
Mar. 10, 2017) Gomez v. United States, 490 U.S. 858 (1989) Hamdan v. Rumsfeld, 548 U.S. 557 (2006) Hawaii v. Trump, --- F. Supp. 3d ---, No. 17-cv-50, 2017 WL 1011673 (D. Haw.
Mar. 15, 2017) I.N.S. v. Chadha, 462 U.S. 919 (1983) Int’l Refugee Assistance Project v. Trump, --- F. Supp. 3d ---, No. 17-cv-361, 2017
WL 1018235 (D. Md. Mar. 16, 2017) Marbury v. Madison, 5 U.S. 137 (1803) U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) Zadvydas v. Davis, 533 U.S. 678 (2001) 8 U.S.C. § 1152(a) (§ 1152(a) of the Immigration and Nationality Act)
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INDEX OF AUTHORITIES
Page(s)
Cases
Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986) ................................................................ 13, 18
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) .......................................................................................25
Allende v. Schultz, 845 F.2d 1111 (1st Cir. 1988) ................................................................... 13, 18
Am. Acad. of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009)...................................................................... 13, 17
Aziz v. Trump, --- F. Supp. 3d ---, No. 1:17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017)................................................................................................19
Bertrand v. Sava, 684 F.2d 204 (2d Cir. 1982)............................................................................14
Boumediene v. Bush, 553 U.S. 723 (2008) .......................................................................................17
Chae Chan Ping v. United States, 130 U.S. 581 (1889) ................................................................................... 7, 10
City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) .......................................................................................25
Doe v. Trump, --- F. Supp. 3d ---, No. 17-cv-112, 2017 WL 975996 (W.D. Wis. Mar. 10, 2017) ...............................................................................................19
Fiallo v. Bell, 430 U.S. 787 (1977) .......................................................................................14
Fisher v. Univ. of Tex. at Austin, -- U.S. ---, 133 S. Ct. 2411 (2013) ...................................................................24
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Fong Yue Ting v. United States, 149 U.S. 698 (1893) .........................................................................................7
Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014)............................................................................12
Gomez v. United States, 490 U.S. 858 (1989) .......................................................................................20
Guessous v. Fairview Prop. Invs., 828 F.3d 208 (4th Cir. 2016).............................................................................7
Hamdan v. Rumsfeld, 548 U.S. 557 (2006) .......................................................................................16
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) .......................................................................................17
Hawaii v. Trump, --- F. Supp. 3d ---, No. 17-cv-50, 2017 WL 1011673 (D. Haw. Mar. 15, 2017) .......................................................................................................19
Hazama v. Tillerson, 851 F.3d 706 (7th Cir. 2017)...........................................................................17
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987) ................................................................................. 12, 16
I.N.S. v. Chadha, 462 U.S. 919 (1983) .......................................................................................11
I.N.S. v. St. Cyr, 533 U.S. 289 (2001) .......................................................................................21
Int’l Refugee Assistance Project v. Trump, --- F. Supp. 3d ---, No. 17-cv-361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) .......................................................................................................19
Jean v. Nelson, 472 U.S. 846 (1985) ............................................................................16, 21, 22
Johnson v. Robison, 415 U.S. 361 (1974) .......................................................................................20
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Kerry v. Din, --- U.S. ---, 135 S. Ct. 2128 (2015)............................................................ 13, 14
Kleindienst v. Mandel, 408 U.S. 753 (1972) ...................................................................... 12, 13, 14, 17
Korematsu v. United States, 323 U.S. 214 (1944) ............................................................................23, 24, 25
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) .........................................................................................8
Louhghalam v. Trump, --- F. Supp. 3d ---, No. 17-cv-10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017)..................................................................................................19
Loving v. Virginia, 388 U.S. 1 (1967)...........................................................................................25
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1999) .......................................................................................15
Mandel v. Mitchell, 325 F. Supp. 620 (E.D.N.Y. 1971) ..................................................................17
Marbury v. Madison, 5 U.S. 137 (1803)...........................................................................................10
Negusie v. Holder, 555 U.S. 511 (2009) ................................................................................. 12, 16
Oyama v. California, 332 U.S. 633 (1948) .......................................................................................10
Printz v. United States, 521 U.S. 898 (1997) .......................................................................................12
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008)............................................................................15
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) .......................................................................................24
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Sarsour v. Trump, --- F. Supp. 3d ---, No. 1:17-cv-120, 2017 WL 1113305 (E.D. Va. Mar. 24, 2017) ...............................................................................................20
Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953) .........................................................................................9
Spokeo, Inc. v. Robins, --- U.S. ---, 136 S. Ct. 1540 (2016)..................................................................16
U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) ................................................................................. 11, 12
U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) ................................................................................... 8, 16
United States v. Ju Toy, 198 U.S. 254 (1905) .........................................................................................7
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982) .......................................................................................16
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017).........................................................................19
Webster v. Doe, 486 U.S. 592 (1988) .......................................................................................20
Zadvydas v. Davis, 533 U.S. 678 (2001) ............................................................................10, 20, 21
Legislative Materials
70 Cong. Rec. 3620 (1929) (statement of Rep. William Thomas Fitzgerald) .......................................................................................................6
70 Cong. Rec. 4907 (1929) (statement of Rep. Jed Johnson).................................6
H.R. Rep. No. 45-62 (1879) ................................................................................5
H.R. Rep. No. 68-350 (1924)...............................................................................6
H.R. Res. 683, 112th Cong. (2012) ......................................................................8
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REPORT OF THE COMM’N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, PERSONAL JUSTICE DENIED (1982) .............................................24
S. Res. 201, 112th Cong. (2011) ..........................................................................8 Statutes 22 U.S.C. § 6411 ..............................................................................................23 8 U.S.C. § 1182(a)(27) ......................................................................................13 8 U.S.C. § 1182(a)(3)........................................................................................23 8 U.S.C. § 1182(f)....................................................................................... 22, 23 8 U.S.C. § 1185(a) ...................................................................................... 22, 23 Act of April 27, 1904, ch. 1630, 33 Stat. 428 (1904).............................................5 Act of February 5, 1917, ch. 29, § 3, 39 Stat. 874 (1917) ......................................5 Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (1882) ..................................5 Chinese Exclusion Repeal Act of 1943, ch. 344, 57 Stat. 600 (1943) .....................8 Expatriation Act of 1907, ch. 2534, § 3, 34 Stat. 1228 (1907) ...............................6 Immigration Act of 1924, ch. 190, § 11, 43 Stat. 153 (1924) .................................6 Immigration Act of 1924, ch. 190, § 13, 43 Stat. 153 (1924) .................................6 Immigration and Nationality Act, ch. 477, § 311, 66 Stat. 163 (1952) ...................8 Immigration and Nationality Act, Pub. L. No. 89-236, sec. 202, § 2(a),
79 Stat. 911 (1965) (codified at 8 U.S.C. § 1152(a)) .................................... 8, 22 Naturalization Act of 1790, ch. III, 1 Stat. 103 (1790) ..........................................5 Page Act of 1875, ch. 141, 18 Stat. 477 (1875) .....................................................5 Rules and Regulations Proclamation No. 4417, An American Promise, 41 Fed. Reg. 7,741
(Feb. 20, 1976)...............................................................................................24
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Other Authorities
Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933 (1995) .....................................................................................9
Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1 (1998)..............................................................................................................9
Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 479 (2010) ................................................11
HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES (2006)............................5
Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990) ..................................................................................9
IAN HANEY-LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996) ....................................................................................................7
Jamal Greene, The Anticanon, 125 Harv. L. Rev. 380 (2011) ..............................23
Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proc. Am. Phil. Soc’y 117 (2016).......................9
Khaled A. Beydoun, Between Muslim and White: The Legal Construction of Arab American Identity, 69 N.Y.U. Ann. Surv. Am. L. 29 (2013) .....................................................................................................7
Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. Rev. 1575 (2002)..............................................................................................................7
LOUIS HENKIN, THE AGE OF RIGHTS (1990)........................................................10
Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1 (1984) ...............................................................................................9
Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255 (1984) .......................................9
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T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365 (2002) ..........................9
Vicki C. Jackson, Standing and the Role of Federal Courts: Triple Error Decisions in Clapper v. Amnesty International USA and City of Los Angeles v. Lyons, 23 Wm. & Mary Bill Rts. J. 127 (2014) ....................16
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INTERESTS OF AMICI CURIAE Amici curiae are scholars of constitutional law, federal court jurisdiction, and the law of immigration, national security, and citizenship.1 Because of our areas of expertise, Amici write to provide an overview of the history and governing legal principles of judicial review of Executive Branch decisions related to immigration and national security. Given the jurisprudence, Amici believe that this Court should reach the merits of the claims that the Executive’s actions were in excess of its statutory authority and violated the Constitution. Amici are the following scholars2: Bruce Ackerman, Sterling Professor of Law and Political Science, Yale Law School; Janet Cooper Alexander, Frederick I. Richman Professor of Law, Emerita, Stanford Law School; Stuart Banner, Norman Abrams Professor of Law, UCLA School of Law;
1 Amici certify that no party’s counsel authored any part of this brief, and no party or person other than Amici or their counsel made any monetary contribution intended to fund preparation or submission of this brief. All parties have consented to the filing of this amicus curiae brief. 2 Institutional affiliations are included for identification purposes only and do not represent the views of the institutions.
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Erwin Chemerinsky, Dean of the Schoolof Law, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law;
Gabriel J. Chin, Edward L. Barrett Chair of Law and Martin Luther King, Jr. Professor of Law, UC Davis School of Law;
Kristin Collins, Professor of Law and Associate Dean for Intellectual Life, Boston University School of Law;
Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia Law School;
Geoffrey Hoffman, Clinical Associate Professor, University of Houston Law Center;
Catherine Y. Kim, Associate Professor of Law, University of North Carolina School of Law;
Hiroshi Motomura, Susan Westerberg Prager Professor of Law, UCLA School of Law;
Burt Neuborne, Norman Dorsen Professor of Civil Liberties, New York University School of Law;
Gene R. Nichol, Boyd Tinsley Distinguished Professor of Law, University of North Carolina School of Law;
Judith Resnik, Arthur Liman Professor of Law, Yale Law School; Jonathan Weinberg, Professor of Law, Wayne State University Law School.
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SUMMARY OF ARGUMENT Amici make four points. First, it is essential to evaluate the Executive’s assertions of unfettered discretion, plenary power, and non-reviewability of decisions related to immigration in the historical context of U.S. immigration law and policy. This history demonstrates the harm of excessive deference to Executive Branch claims that national security requires the government to target groups based on nationality and race. The powerful exemplar is, of course, the evacuation and detention of more than 100,000 Japanese-Americans during World War II, to which the courts acceded and for which both the Executive and Congress later apologized. Since World War II, however, immigration law—as reflected both in legislation and in the jurisprudence of the Supreme Court—has evolved to reflect emerging norms of racial equality and individual liberty. Second, courts have developed and articulated meaningful constraints on the immigration authority of the political branches. While Congress and the President are entitled to deference on matters related to immigration and national security, they have no authority to ignore the Constitution. Animated by concerns relating to individual rights, separation-of-powers, and federalism, courts have sought to ensure that the political branches do not violate constitutional prohibitions on arbitrary decision-making or promote invidious discrimination.
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Third, Amici explain the role of justiciability doctrines in the development of these constraints. Although petitioners in the array of litigated immigration cases have not always succeeded in overturning decisions on the merits, courts have generally reached the merits rather than rely on justiciability doctrines such as ripeness and standing to avoid making decisions. Those merits decisions underscore that the refusal to permit entry to individuals affects not only persons outside the United States, but also citizen and U.S. resident family members, employers, universities, States, localities and the public at large.
Fourth, when responding to claims related to immigration, courts have regularly sought to examine whether, under the doctrine of constitutional avoidance, statutes should be read to allow unfettered Executive Branch authority. Even in the face of text seeming to constrain judicial review, the courts have shouldered the responsibility of ensuring that America’s rule of law applies to actions of American officials.
ARGUMENT I. United States Law Once Condoned Immigration Exclusion Based On
Race And Ethnicity But Has Since Rejected Such Invidious Actions No student of United States history can ignore that our Nation’s immigration policies once routinely employed notions of racial and cultural inferiority to exclude classes of noncitizens as threats to our safety and stability. And when these practices were challenged, the government regularly asserted that its authority was
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unconstrained—or “plenary.” But the lesson to be drawn from this unhappy history is the importance of America’s rejection of racial and ethnic restrictions on immigration. Just as Congress and the courts were once central in permitting such discrimination, so too Congress and the courts have been essential to the revision of those practices. Below, we sketch the rise and fall of overt discrimination in immigration based on race and ethnicity.
From the late eighteenth century through World War II, both Congress and the courts condoned immigration exclusion based on race and ethnicity. As early as the Naturalization Act of 1790, Congress restricted immigrant eligibility for citizenship to “free white person[s].” Ch. III, 1 Stat. 103 (1790). Beginning in 1875, Congress enacted a series of laws targeting and ultimately prohibiting virtually all Chinese immigration. See, e.g., Page Act of 1875, ch. 141, 18 Stat. 477 (1875); Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (1882); Act of April 27, 1904, ch. 1630, 33 Stat. 428 (1904). Congress asserted that these measures were needed to remedy “a standing menace to the social and political institutions of the country.” H.R. Rep. No. 45-62, at 3 (1879). In 1917, Congress expanded the scope of excludability by creating an “Asiatic Barred Zone,” stretching from Saudi Arabia to the Polynesian islands. See Act of February 5, 1917, ch. 29, § 3, 39 Stat. 874, 876 (1917); see generally HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES 103 (2006).
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The Immigration Act of 1924 went further, barring entry of all immigrants unless they were eligible for citizenship, which at that time encompassed only “free white persons” and “aliens of African nativity and . . . persons of African descent.” See ch. 190, § 13, 43 Stat. 153, 161–62 (1924); H.R. Rep. No. 68-350, at 6 (1924) (internal quotation marks omitted). The Act also imposed strict national-origin quotas. See § 11, 43 Stat. at 159–60. Again, such measures were characterized as necessary to our national survival: “If . . . the principle of individual liberty, guarded by a constitutional government created on this continent nearly a century and a half ago, is to endure, the basic strain of our population must be maintained . . . .” H.R. Rep. No. 68-350, at 13.
As hostility emerged toward other groups, claims were made that they, too, would bring poverty, disease, alcohol, labor competition, and other challenges to America’s identity. One Representative claimed that “hordes of undesirable aliens . . . [were] undermining [the] health, integrity, and moral fiber of the forthcoming generations.” 70 Cong. Rec. 4907 (1929) (statement of Rep. Jed Johnson). Another argued the need to stop foreigners from “poisoning the American citizen.” 70 Cong. Rec. 3620 (1929) (statement of Rep. William Thomas Fitzgerald). Moreover, gender and racial stereotypes interacted, as legislation mandated that American women who married noncitizens lost their United States citizenship. Expatriation Act of 1907, ch. 2534, § 3, 34 Stat. 1228, 1228–29 (1907).
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The courts likewise endorsed invidious exclusions through references to the “plenary” power of the political branches over immigration. For example, in Chae Chan Ping v. United States, a unanimous Court reasoned that in light of the “Oriental invasion” posing a “menace to our civilization,” if Congress “considers the presence of foreigners of a different race in this country . . . to be dangerous to its peace and security, their exclusion is not to be stayed.” 130 U.S. 581, 595, 606 (1889); see also United States v. Ju Toy, 198 U.S. 254, 259–60, 263–64 (1905) (denying habeas review over exclusion of individual claiming U.S. citizenship); Fong Yue Ting v. United States, 149 U.S. 698, 732 (1893) (sustaining expulsion of U.S. resident for failing to produce a “white” witness to testify to his lawful presence). Such discrimination frequently conflated race with national origin and ethnicity.3
Beginning in the middle of the twentieth century, however, both Congress and the Supreme Court moved decisively away from these attitudes. In 1943, Congress repealed the prohibition on Chinese admissions. See Chinese Exclusion Repeal Act
3 Today, the conflation of Muslim and Arab identity and the discrimination against “persons who ‘appear Middle Eastern, Arab, or Muslim’” have been well chronicled. See generally, e.g., Khaled A. Beydoun, Between Muslim and White: The Legal Construction of Arab American Identity, 69 N.Y.U. Ann. Surv. Am. L. 29 (2013); Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. Rev. 1575 (2002); IAN HANEY-LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE 106 (1996); see also Guessous v. Fairview Prop. Invs., 828 F.3d 208, 225 (4th Cir. 2016) (noting that anti-Muslim animus may constitute “race” discrimination).
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of 1943, ch. 344, 57 Stat. 600 (1943).4 In 1952, Congress guaranteed that the “right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex . . . .” Immigration and Nationality Act, ch. 477, § 311, 66 Stat. 163, 239 (1952). Then, in 1965, it finally rejected the premise of racialized national exclusivity by abandoning the national-origin immigrant quota systems. See Immigration and Nationality Act, Pub. L. No. 89-236, 79 Stat. 911, 911–12 (1965). Moreover, it specifically provided that with regard to the issuance of immigrant visas, “[n]o person shall receive any preference or priority or be discriminated against . . . because of his race, sex, nationality, place of birth, or place of residence.” Id. at 911.
Within the judiciary, the insistence on constitutional protections in the immigration context initially was uneven. On the one hand, Kwong Hai Chew v. Colding rejected the contention that a lawful permanent resident could be excluded from the United States without being given notice of the charges justifying his exclusion and an opportunity to object. 344 U.S. 590, 603 (1953). On the other hand, both U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), which sustained exclusion of a war bride without any hearing, and Shaughnessy v. U.S. ex rel. Mezei,
4 Decades later, both the House and Senate apologized for the government’s policies of Chinese exclusion. See H.R. Res. 683, 112th Cong. (2012); S. Res. 201, 112th Cong. (2011).
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345 U.S. 206 (1953), which upheld the exclusion and indefinite detention of a returning noncitizen without a hearing, represented steps backwards.
Subsequent to those Cold War era decisions, however, the Supreme Court— while continuing to recognize the need for appropriate deference—retreated from the Knauff/Mezei licensing of unfettered government power in immigration decisions. See generally Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933 (1995). A wealth of scholarship has chronicled this shift in doctrine as due process and equal protection norms came to be reflected—albeit with variations— in immigration law. See, e.g., Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 4 (1984); Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545, 547 (1990); T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365, 365–66 (2002); Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1, 54– 58 (1998); Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proc. Am. Phil. Soc’y 117, 133 (2016); Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255, 257–58 (1984).
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The vision of law that supported judicial approval of such discriminatory legislation and produced pejoratives such as “‘the yellow peril,’” Oyama v. California, 332 U.S. 633, 658–59 (1948) (Murphy, J., concurring), have come to be seen as tragic moments in our Nation’s history. As Professor Louis Henkin put it, the invidious discrimination sanctioned in Chae Chan Ping had become “an embarrassment”; indeed, Chae Chan Ping and cases like it represented “relics of a bygone, unproud era.” LOUIS HENKIN, THE AGE OF RIGHTS 137 (1990). II. The Supreme Court Has Recognized Meaningful Limits On The
Political Branches’ Authority Over Immigration Our democratic system obligates the judiciary to constrain any unconstitutional excesses of the political branches. See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). Notwithstanding the deference afforded to immigration regulation by the political branches, the Supreme Court has imposed meaningf ul constraints on legislative and Executive overreach. The Court’s jurisprudence on immigration reflects its oversight of both individual constitutional rights as well as structural separation-of-powers norms. For example, in Zadvydas v. Davis, 533 U.S. 678, 695 (2001), rejecting the Executive’s claim of authority to indefinitely detain a noncitizen who had been ordered deported but could not be repatriated to another country, the Court emphasized that even in the realm of immigration, the political branches remain “subject to important constitutional limitations.”
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Further, the Supreme Court has enforced structural norms designed to protect against “arbitrary” immigration decisions by any single branch of government. In I.N.S. v. Chadha, 462 U.S. 919 (1983), the Court rejected Congress’s attempt to impose a one-house legislative veto over an Executive Branch decision to deport a particular alien, emphasizing that the procedural requirements of bicameralism and presentment were necessary “to protect the whole people from improvident laws,” to ensure that federal policymaking is subject to “full study and debate in separate settings,” and to “preclud[e] final arbitrary action of one person.” Id. at 951.
Similarly, the Court has exercised meaningful review over agencies’ immigration decisions to protect separation-of-powers norms requiring careful deliberation, reasoned decision-making, and non-arbitrariness, just as it has over administrative decisions outside of the immigration context. See, e.g., Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 479, 499 (2010). U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), is illustrative. There, the Supreme Court held that the Attorney General deprived a noncitizen of a fair hearing on an application for discretionary relief from removal when he circulated the alien’s name on a list of “‘unsavory’” characters who should be deported. Id. at 264. The Court concluded that, although the Attorney General retained ultimate discretionary authority to grant or deny such relief, the Attorney General could not circumvent regulatory procedures requiring the Board of
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Immigration Appeals to first render judgment on such applications. Id. at 267; see also I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987) (rejecting Executive’s interpretation of statutory term “well-founded fear of persecution” for asylum admissions); Negusie v. Holder, 555 U.S. 511, 514 (2009) (rejecting Executive’s interpretation of provision disqualifying individuals who were “coerced” into persecuting others from eligibility for asylum). In sum, notwithstanding the discretion properly recognized in the political branches with respect to many aspects of immigration law, the courts remain responsible for ensuring that those powers are exercised consistently with constitutional norms.5
To be sure, when reviewing the merits of immigration decisions, courts have sometimes deferred to the Executive’s judgments. In Kleindienst v. Mandel, 408 U.S. 753, 769–70 (1972), the Court held that the Attorney General’s decision to deny a waiver of inadmissibility to an alien would be sustained as long as the government provided a “facially legitimate and bona fide reason” for its decision. Subsequent courts generally have been unwilling to “look behind” the government’s stated justification when the justification itself was facially legitimate and bona fide. See,
5 Further constraints on the political branches’ immigration powers have come from the structure of “Our Federalism,” illustrated by decisions applying—in the immigration context—the non-commandeering principle of Printz v. United States, 521 U.S. 898 (1997). See, e.g., Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) (“[T]he federal government cannot command the government agencies of the states to imprison persons of interest to federal officials.”).
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e.g., Kerry v. Din, --- U.S. ---, 135 S. Ct. 2128 (2015) (Kennedy, J., concurring) (denial premised on terrorist activity); Am. Acad. of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009) (denial premised on material support for terrorism).
Such deference, however, does not amount to a judicial rubber stamp. To the contrary, courts have shown less deference when the government’s stated justifications raised constitutional concerns. For example, in both Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986), and Allende v. Schultz, 845 F.2d 1111 (1st Cir. 1988), the government denied visas to noncitizens based on their affiliation with groups deemed hostile to the United States. The Executive cited to its broad statutory discretion under 8 U.S.C. § 1182(a)(27), which barred the entry of aliens who “seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States.” While acknowledging Mandel’s standard of deference, the First Circuit and the D.C. Circuit interpreted the statute narrowly to bar an alien’s entry only if the reason for the threat to public interest, welfare, safety, or security was “independent of the fact of membership in or affiliation with the proscribed organization.” Abourezk, 785 F.2d at 1058 (emphasis in original); see also Allende, 845 F.2d at 1116.
That approach is consistent with Justice Kennedy’s concurrence in Kerry v. Din, which involved the denial of a visa to the spouse of a United States citizen.
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Justice Kennedy’s opinion—joined by Justice Alito (thereby providing a majority to sustain the visa denial)—concluded that the government had provided a “facially legitimate and bona fide” reason for its decision based on its individualized conclusion that Din’s husband had been involved in terrorist activity. 135 S. Ct. at 2140. But Din did not involve allegations of invidious discrimination or arbitrary classifications, and Justice Kennedy noted that under Mandel, an “affirmative showing of bad faith” would require a court to “‘look behind’” the stated reasons for a decision. Id. at 2141; see also Bertrand v. Sava, 684 F.2d 204, 212 (2d Cir. 1982) (holding that “discretion may not be exercised to discriminate invidiously against a particular race or group or to depart without rational explanation from established policies,” and that such exercise would fail Mandel’s standard). These cases reflect that the government’s reasons must be both “facially legitimate” and “bona fide,” and where the government’s stated reasons rely on constitutionally suspect and arbitrary classifications, courts will exercise closer scrutiny.
Pursuant to such scrutiny, courts have sometimes sustained the use of suspect or quasi-suspect classifications in immigration decisions. In Fiallo v. Bell, the Court sustained a legislative provision denying preferential immigration status based on the relationship between an illegitimate child and his or her biological father. 430 U.S. 787, 794 (1977). And in Rajah v. Mukasey, the Second Circuit upheld the special registration program implemented shortly after 9/11 requiring non-
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immigrant males over the age of 16 from twenty-five countries, all but one of which was predominantly Muslim, to appear for registration and fingerprinting and to present immigration documents. 544 F.3d 427, 435–39 (2d Cir. 2008).
But neither race nor ethnicity nor religion is a facially legitimate reason for excluding aliens, and national-origin classifications are upheld only in narrow circumstances. Indeed, even in Rajah, the court “agree[d] that a selective prosecution based on [] animus [toward Muslims] would call for some remedy.” Id. at 438–39 (finding, however, no evidence of “improper animus toward Muslims”). As Rajah demonstrates, while the political branches may sometimes employ disfavored classifications to regulate immigration, courts will carefully scrutinize such classifications—especially where animus might be at issue. III. Challenges To Immigration Decisions Are Justiciable
Doctrines of justiciability represent important concerns about when the federal judiciary should assess claims of violations of legal rights. The now-classic statement of the standing doctrine comes from Justice Scalia’s plurality opinion in Lujan v. Defenders of Wildlife: To establish standing, a plaintiff must allege (1) an “injury in fact” that is (2) “fairly . . . trace[able] to the challenged action of the defendant,” and that is (3) “likely” to be “redressed by a favorable decision.” 504 U.S. 555, 560–61 (1999) (citations omitted). The injury-in-fact must be both concrete and particularized. See Spokeo, Inc. v. Robins, --- U.S. ---, 136 S. Ct. 1540,
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1545 (2016). This requirement helps ensure that federal courts resolve legal problems in a “factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). However, while standing and other justiciability doctrines enshrine important separation-of-powers principles, they should not be used to insulate large categories of political branch behavior from judicial review. See generally Vicki C. Jackson, Standing and the Role of Federal Courts: Triple Error Decisions in Clapper v. Amnesty International USA and City of Los Angeles v. Lyons, 23 Wm. & Mary Bill Rts. J. 127 (2014).
Supreme Court jurisprudence makes clear that even when noncitizens do not have a “right” to enter or to remain in the United States, they can be heard on the merits of their claims that they were treated unlawfully. See, e.g., Negusie, 555 U.S. at 513–15 (discretionary denial of asylum); Cardoza-Fonseca, 480 U.S. at 424–25 (same); Jean v. Nelson, 472 U.S. 846, 853–54 (1985) (discretionary grants of parole for migrants without documents); Accardi, 347 U.S. at 266–68 (discretionary suspension of deportation). The Supreme Court has even addressed the merits of claims brought by noncitizens outside the United States believed to have engaged in terrorism. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006). In each case, the Court concluded that while Executive Branch claims based on national security are properly entitled to significant deference, that deference is not a “‘blank check.’” Id.
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at 576–78, 636 (2006) (Breyer, J., concurring) (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion)); see also Boumediene v. Bush, 553 U.S. 723, 771–72 (2008).
The Court has further found that U.S. citizens and residents have standing to challenge denial of a visa to a noncitizen when it implicates their own constitutional interests. In Mandel, the Court held that the First Amendment interests of American professors who had invited Mandel to speak at their conferences made the case justiciable because the professors themselves suffered a constitutionally cognizable injury. The lower court explained:
Here the plaintiffs other than Mandel are directly involved with Mandel’s entry because they have invited him, and they expect to participate in meeting with him or expect to be among his auditors. No more is required to establish their standing. . . . The special relation of plaintiffs to Mandel’s projected visit gives them a specificity of interest in his admission, reinforced by the general public interest in the prevention of any stifling of political utterance, that abundantly satisfies ‘standing’ requirements. Mandel v. Mitchell, 325 F. Supp. 620, 632 (E.D.N.Y. 1971). Circuit courts have followed this approach. See, e.g., Hazama v. Tillerson, 851 F.3d 706, 707 (7th Cir. 2017) (holding that district court improperly concluded it lacked jurisdiction to review visa denial); Am. Acad. of Religion, 573 F.3d at 118 (exercising jurisdiction over visa denial). In addition, where plaintiffs challenge a policy of visa denials rather than the application of a concededly legitimate policy to a particular individual, the case
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remains justiciable regardless of whether particular individuals have been denied or granted a visa pursuant to the policy. For example, in Abourezk, 785 F.2d at 1043, the government had denied visas to several groups of noncitizens on the basis of the applicants’ membership with organizations or governments hostile to the United States. The government argued that there was no live case or controversy because the State Department considers each visa application on a case-by-case basis. Rejecting that contention, the Court of Appeals concluded that “the reasons for the visa denials offered . . . indicate that the prospect of future denials of applications . . . is a genuine, and not merely a theoretical, possibility.” Id. at 1052. Similarly, in Allende, the court held that the case was not moot even though the applicant had ultimately obtained permission to enter:
Although the specific application of that policy against Allende in March 1983 is moot, the validity of that policy in general remains a live controversy. And since the existence of the policy continues to effect [sic] the actions of the plaintiffs who may reasonably expect that the government will oppose future plans to extend speaking invitations to Allende, we find the Article III case or controversy requirement satisfied. 845 F.2d at 1115 n.7. In both cases, the government’s general policy of denying visas to members of particular organizations rendered the injury sufficiently likely even if the policy was not applied uniformly in every case. Consistent with these principles, all of the federal courts that have examined the January 27 Executive Order addressed the merits, and all but one found that
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questions of its constitutional infirmity warranted enjoining the Order’s enforcement. In Washington v. Trump, 847 F.3d 1151, 1164 (9th Cir. 2017), a unanimous Ninth Circuit panel concluded that the State plaintiffs had established standing to challenge the Order and were likely to succeed on the merits of their due process claims. In Aziz v. Trump, --- F. Supp. 3d ---, No. 1:17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017), a Virginia district court found that the Commonwealth of Virginia had standing; a likelihood of success on the merits of its Establishment Clause claim in light of the government’s public statements regarding its policy; and that evidence of bad faith precluded deference to the government’s stated rationale under the “facially legitimate and bona fide reason” standard. But cf. Louhghalam v. Trump, --- F. Supp. 3d ---, No. 17-cv-10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017) (denying extension of temporary restraining order).
Likewise, all four district courts considering the legality of the revised March 6 Executive Order have reached the merits, and three enjoined implementation of that Order, finding that it raises the same constitutional concerns as the original Order. See Int’l Refugee Assistance Project v. Trump, --- F. Supp. 3d ---, No. 17-cv361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) (finding likelihood of success on Establishment Clause claim); Hawaii v. Trump, --- F. Supp. 3d ---, No. 17-cv-50, 2017 WL 1011673 (D. Haw. Mar. 15, 2017) (same); Doe v. Trump, --- F. Supp. 3d ---, No. 17-cv-112, 2017 WL 975996 (W.D. Wis. Mar. 10, 2017) (finding plaintiff’ s
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claims “have at least some chance of prevailing for the reasons articulated by other courts” to warrant temporary restraining order). But see Sarsour v. Trump, --- F. Supp. 3d ---, No. 1:17-cv-120, 2017 WL 1113305 (E.D. Va. Mar. 24, 2017) (denying motion for temporary restraining order). None of these courts refused to consider the plaintiffs’ claims on justiciability grounds. IV. Sections 1182(f) And 1185(a), Like Other Statutory Provisions, Must Be
Construed To Avoid Raising Serious Constitutional Questions It is a “cardinal principle” of statutory interpretation that when an Act of Congress raises “a serious doubt” as to its constitutionality, the Supreme Court “will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Zadvydas, 533 U.S. at 689 (internal quotation marks omitted). The Supreme Court has repeatedly emphasized that it will “avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.” Gomez v. United States, 490 U.S. 858, 864 (1989). Moreover, statutes in tension with basic constitutional values are construed in accord with strong “clear statement” presumptions, requiring that—in the absence of explicit language—a statute will not be interpreted to trench on those fundamental values. See, e.g., Webster v. Doe, 486 U.S. 592, 603–05 (1988); Johnson v. Robison, 415 U.S. 361, 373–74 (1974). Recognizing that the political branches’ regulation of immigration “is subject to important constitutional limitations,” Zadvydas, 533 U.S. at 695, the Supreme
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Court has repeatedly applied the canon of constitutional avoidance to limit immigration provisions that on their face appeared to confer unconstrained authority. In I.N.S. v. St. Cyr, 533 U.S. 289, 311 (2001), for instance, the Court rejected the government’s claim that a statute providing that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reas on of having committed” certain crimes precluded judicial review over a habeas challenge. Concluding that such a reading would raise serious constitutional questions under the Suspension Clause, the Court held that the denial of discretionary relief for a removable alien is subject to judicial review. In Zadvydas, too, where the statute contained no time limit on the detention of certain aliens, the Court read the statute to include an implicit reasonableness limitation and emphasized that “[w]e have read significant limitations into other immigration statutes in order to avoid their constitutional invalidation.” 533 U.S. at 689.
Likewise, in Jean v. Nelson, the Supreme Court rejected the Eleventh Circuit’s ruling that the Executive Branch may deny parole to arriving aliens on the basis of race or national origin notwithstanding Equal Protection guarantees. 472 U.S. 846 (1985). The Court held that the lower court had erred in failing to employ the doctrine of constitutional avoidance. Although Congress had delegated to the Executive broad discretion to “parole into the United States temporarily under such conditions as he may prescribe . . . any alien applying for admission into the United
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States,” the Court recognized that such delegation did not authorize decisions on the basis of race or national origin. Id. at 855–56.
Like the provision at issue in Jean v. Nelson, the provisions relied upon by the government here—sections 1182(f) and 1185(a)—appear to grant broad discretion to the Executive Branch. See 8 U.S.C. § 1182(f); 8 U.S.C. § 1185(a). Just as the Supreme Court did in Jean v. Nelson, this Court should read those broad delegations of authority in a manner to avoid reaching thorny questions concerning the constitutionality of arbitrarily excluding individuals from the United States on the basis of race, ethnicity, national origin, or religion. Such a reading is particularly warranted in light of Congress’s explicit prohibition against discrimination in section 1152(a). That provision, part of the Immigration Act of 1965 enacted after sections 1182(f) and 1185(a), guarantees: “No person shall . . . be discriminated against in the issuance of an immigrant visa because of [the person’s] race, sex, nationality, place of birth, or place of residence . . . .” Pub. L. No. 89-236, sec. 202, § 2(a), 79 Stat. 911 (1965) (codified at 8 U.S.C. § 1152(a)). Concededly, section 1152(a) does not on its face extend to the issuance of nonimmigrant visas, which were not the focus of the Immigration Act of 1965, nor does it prohibit discrimination on the basis of religion. Nonetheless, it reflects a congressional and constitutional norm disfavoring traditionally suspect classifications. The revised Order is also in tension
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with the specific statutory criteria for excluding persons believed to be involved in terrorist activity. See 8 U.S.C. § 1182(a)(3).6
Given the seriousness of the constitutional issues raised by the Executive Order of March 6, 2017, the canon of constitutional avoidance compels reading sections 1182(f) and 1185(a) as complying with the anti-discrimination norms enacted by Congress and embedded in the Constitution. V. The Risks Of Undue Deference:A Return To Lessons From History
Judicial deference to Government assertions of national security threats posed by particular nationalities or ethnicities has had tragic results, as exemplified most powerfully by the courts’ response to Japanese internment during World War II. Korematsu v. United States, 323 U.S. 214 (1944), has rightly become part of an “anticanon”—deployed as an example of what United States law no longer accepts as constitutional. See Jamal Greene, The Anticanon, 125 Harv. L. Rev. 380, 396, 456–60 (2011). In Korematsu, the Supreme Court, by a 6-3 vote, deferred to the government’s assertion that national security required the detention of over 100,000 Japanese-Americans based on their ethnicity alone. 323 U.S. at 218–19. A
6 The revised Order is also at odds with this Nation’s leadership role in protecting religious freedom in both domestic and international settings. In 1998, Congress established an Office of International Religious Freedom in the State Department, which prepares Annual Reports on International Religious Freedom. See 22 U.S.C. § 6411. This congressional directive is inconsistent with the notion that Congress intended to authorize the President to discriminate on the basis of religion.
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Congressional Commission later concluded that no evidence supported the claim of military necessity for internment, and that it was instead the result of “race prejudice, war hysteria and a failure of political leadership.” See REPORT OF THE COMM’N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, PERSONAL JUSTICE DENIED 18 (1982). President Ford formally terminated the Order in 1974, calling it a “setback to fundamental American principles” and urging the Nation “to resolve that this kind of action shall never again be repeated.” Proclamation No. 4417, An American Promise, 41 Fed. Reg. 7,741 (Feb. 20, 1976). And in 1984, the district court granting Fred Korematsu a writ of coram nobis characterized his case as a “constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees.” Korematsu v. United States, 584 F. Supp. 1406, 1420 (N.D. Cal. 1984).
One more aspect of Korematsu bears elaboration. The Court has come to invoke the decision for the proposition that strict scrutiny applies to racial classifications under the equal protection doctrine. “‘All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.’” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 291 (1978) (quoting Korematsu, 323 U.S. at 216); see also Fisher v. Univ. of Tex. at Austin, --- U.S. ---, 133 S. Ct. 2411, 2422–23 (2013) (Thomas, J., concurring);
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Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214 (1995); Loving v. Virginia, 388 U.S. 1, 11 (1967). As the Court explained in City of Richmond v. J.A. Croson Co., “[t]he history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis.” 488 U.S. 469, 501 (1989) (citing Korematsu, 323 U.S. at 235–40).
CONCLUSION Plaintiffs’ claims regarding the legality and constitutionality of the March 6, 2017 Executive Order are properly before this Court. Amici respectfully support Plaintiffs’ opposition to Defendants’ motion to dismiss their claims.

Dated: May 22, 2017

Respectfully submitted,

/s/ Kimberly Thomas . Kimberly Thomas (Mich. Bar #P66643) 701 South State Street 3032 South Hall Ann Arbor, MI 48109 (734) 647-4054 kithomas@umich.edu

SIMPSON THACHER & BARTLETT LLP

/s/ Abram Ellis

.

Abram Ellis (N.Y. Bar #4402962)

900 G Street, Northwest

Washington, DC 20001

(202) 636-5579

aellis@stblaw.com

Counsel for Amici Curiae

Alan Turner (N.Y. Bar #4000147) Reena Mittelman (N.Y. Bar #5219761) Jerry Fang (N.Y. Bar #5417191) Patricia Yan (N.Y. Bar #5499173) 425 Lexington Avenue New York, NY 10017

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(212) 455-2000 aturner@stblaw.com reena.mittelman@stblaw.com jerry.fang@stblaw.com patricia.yan@stblaw.com Counsel for Amici Curiae
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CERTIFICATE OF COMPLIANCE I hereby certify that, pursuant to E.D. Mich. L.R. 5.1, the foregoing brief is double-spaced and uses a proportionally spaced, 14-point type size.

Dated: May 22, 2017

SIMPSON THACHER & BARTLETT LLP
By /s/ Abram Ellis Abram Ellis (N.Y. Bar #4402962)

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs,

Case No. 17-10310

v.

Hon. Victoria A. Roberts

DONALD TRUMP, President of the United States, et al.,

Oral Argument Requested

Defendants. _____________________________________/

DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

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TABLE OF CONTENTS INTRODUCTION .................................................................................................... 1 ARGUMENT ............................................................................................................2
I. Plaintiffs Do Not Have Standing ..................................................................2 A. Stigma....................................................................................................2 B. Family or Members’ Familial Separations……………………….....5 C. Economic Harm………………………....…………………………... 7
II. Plaintiffs’ Claims Fail On The Merits .........................................................9 A. Establishment Clause ...........................................................................9 B. Equal Protection.................................................................................14 C. Freedom of Speech and Association ................................................ 15
CONCLUSION.......................................................................................................15 CERTIFICATE OF SERVICE ............................................................................17
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TABLE OF AUTHORITIES
CASE LAW
Allen v. Wright, 468 U.S. 737 (1984) ...........................................................................................8, 9
Andrade-Garcia v. Lynch, 828 F.3d 829 (9th Cir. 2016) ................................................................................10
Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) ..........................................................................2, 3
Bains v. United States, 2014 WL 3389117 (N.D. Ohio July 9, 2014).......................................................11
Bangura v. Hansen, 434 F.3d 487 (6th Cir. 2006) ..................................................................... 5, 11, 14
Bays v. City of Fairborn, 668 F.3d 814 (6th Cir. 2012) ................................................................................15
Ben-Issa v. Reagan, 645 F. Supp. 1556 (W.D. Mich. 1986).................................................................15
Bowen v. Kendrick, 487 U.S. 589 (1988) .............................................................................................10
Burrafato v. U.S. Dep’t of State, 523 F.2d 554 (2d Cir. 1975) .................................................................................19
Catholic League for Religious & Civil Rights v. City and County of San Francisco, 624 F.3d 1043 (9th Cir. 2010) (en banc)............................................................2, 3
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ...........................................................................................7
Fiallo v. Bell, 430 U.S. 787 (1977) .............................................................................................10
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Freedom From Religion Found., Inc. v. Obama, 641 F.3d 803 (7th Cir. 2011)..................................................................................4
Heller v. Doe, 509 U.S. 312 (1993) .............................................................................................14
Kerry v. Din, 135 S. Ct. 2128 (2015) .....................................................................................5, 11
Kleindienst v. Mandel, 408 U.S. 753 (1972) ........................................................................ 7, 9, 10, 11, 15
Mathews v. Diaz, 426 U.S. 67 (1976) .................................................................................................1
McCreary Cnty. v. ACLU of Ky., 545 U.S. 844 (2005) ...................................................................................... 12, 13
Mehdi v. U.S. Postal Serv., 988 F. Supp. 721 (S.D.N.Y. 1997) .........................................................................9
Moore v. Bryant, 853 F.3d 245 (5th Cir. 2017) ..............................................................................5, 9
NAACP v. Horne, 626 F. App'x 200 (9th Cir. 2015). ..........................................................................5
Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979) ...................................................................... 12, 13
In re Navy Chaplaincy, 534 F.3d 756 (D.C. Cir. 2008) .............................................................................19
New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046 (6th Cir. 2011) ..............................................................................12
Newdow v. Lefevre, 598 F.3d 638 (9th Cir. 2010)..................................................................................4
Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (9th Cir. 2010)................................................................................4
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Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1953) ...............................................................................................8
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) .......................................................................... 14, 15
Reno v. Am-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ...................................................................................... 12, 13
Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) .............................................................................6
Sarsour v. Trump, 2017 WL 1113305 (E.D. Va. Mar. 24, 2017) ............................................... 13, 14
Smith v. Jefferson Cnty. Bd. of Sch. Comm'rs, 641 F.3d 197 (6th Cir. 2011) (en banc)..................................................................8
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) .........................................................................................9, 10
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) ...............................................................................................7
Valley Forge Christian Coll. v. Ams. United for Sep. of Church & State, Inc., 454 U.S. 464 (1982) .........................................................................................4, 10
Washington v. Trump, 2017 WL 1045950 (W.D. Wash. Mar. 16, 2017).................................................14
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INTRODUCTION Defendants hereby reply to Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (ECF No. 86) (hereinafter, “Plaintiffs’ Opposition” or “Pls.’ Opp.”). Defendants focus on three critical flaws in Plaintiffs’ Opposition: (1) Plaintiffs’ claims are unripe and do not support their claimed bases for standing; (2) Plaintiffs’ perceived religious-discrimination claims are wholly subjective and unsupported by the face and official purpose of the Order; and (3) Plaintiffs’ substantive arguments completely ignore how “significantly different considerations” are at play when the federal government makes distinctions in immigration law based on alienage and nationality because “it is the business of the political branches of the Federal Government...to regulate the conditions of entry and residence of aliens.” Mathews v. Diaz, 426 U.S. 67, 84 (1976). Contrary to Plaintiffs’ arguments, the Order neither singles out Muslims nor bans their travel. Rather, it imposes a short-term suspension on travel of nationals of certain countries, without regard to religion, and with waivers available to facilitate certain legitimate travel from the designated countries even during that limited period. Moreover, the purpose of the Order is unconnected to religion. Its stated, official purpose is to permit the Executive Branch with time to review the nation’s screening procedures to ensure that they adequately detect terrorists.
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ARGUMENT I. Plaintiffs Do Not Have Standing.
Plaintiffs premise their standing on “three distinct injuries: stigma, family separation, and economic cost.” Pls.’ Opp. at 10. These are addressed in turn.
A. Stigma For their establishment and equal protection claims, Plaintiffs claim that they suffer an “immediate stigmatic injury,” id. at 23, because the Order “officially condemn[s] Plaintiffs’ religion,” id. at 12–13. But perceived stigmatic or “condemnation” harms are insufficient to for Establishment Clause standing when they are entirely subjective and indirect. Plaintiffs here contend that the Order conveys “an official message of disapproval and hostility towards Muslims,” Pls.’ Opp. at 11 (quotations omitted), but they fail to point to any part of the Order that condemns or stigmatizes any religion; Plaintiffs’ “injury” is derived solely from their own inferences. Plaintiffs cite to cases such as Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) and Catholic League for Religious & Civil Rights v. City and County of San Francisco, 624 F.3d 1043 (9th Cir. 2010) (en banc) to support their claim that a government message of condemnation of religion is sufficient for “stigma” standing. But those cases involved a personalized injury from actual government
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speech rather than an abstract objection to government policy. Awad dealt with a “state amendment expressly condemn[ing the plaintiff’s] religion[.]” 670 F.3d at 1123 (emphasis in original) (establishing direct injury in fact necessary for standing). The resolution in Catholic League condemned a “foreign country…the Vatican (formerly known as Holy Office of the Inquisition)”; “denounce[d a] Cardinal’s directive” because it was “‘hateful,’ ‘insulting,’ and ‘callous’; and urge[d] the local archbishop and Catholic Charities to ‘defy’ the Cardinal’s instructions.” 624 F.3d at 1047. The plaintiffs in those cases were thus exposed to express, official speech directed towards them and their religion.1
In this case, the Order does not expose Plaintiffs to any religious message, because it says nothing about religion. Nor is it directly targeted at Plaintiffs, because it applies only to aliens abroad. Plaintiffs cannot manufacture standing by re-characterizing their abstract injury from “government action” directed against others as a personal injury from “a governmental message [concerning] religion” directed towards them. In re Navy Chaplaincy, 534 F.3d 756, 764 (D.C. Cir. 2008). Indeed, their approach would mean that the Order could be challenged by any Muslim in this country. Moreover, Plaintiffs’ subjective sense of offense
1 See Catholic League, 624 F.3d at 1050 n.26 (“[T]he plaintiffs here are not suing on the mere principle of disagreeing with San Francisco, but because of that city’s direct attack and disparagement of their religion.” (emphasis added)).
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draws its force not from the text or the effect of the Order, which is carefully tailored to respond to specific national security concerns, but instead by linking the Order with political statements from a presidential campaign. These perceived improper motives, stemming from statements made outside the government, are not the same thing as injury from an official government message about religion.
Without any direct stigmatization, Plaintiffs’ establishment claims are “covered by the rule of Valley Forge [Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982)]...that offense at the behavior of the government, and a desire to have public officials comply with (plaintiffs’ view of) the Constitution, differs from a legal injury” and does not support standing. Freedom From Religion Found., Inc. v. Obama, 641 F.3d 803, 807 (7th Cir. 2011); see also Newdow v. Lefevre, 598 F.3d 638, 641 (9th Cir. 2010); Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1016 (9th Cir. 2010). Of course, Plaintiffs disagree because the Valley Forge plaintiffs objected to the federal government’s transfer of property to a Christian college on general grounds but were not individually “target[ed]” or “affect[ed]” in any way. Pls.’ Opp. at 14. But Valley Forge could just as easily have been characterized as an objection to the transfer’s alleged “message” of “endorsement” of Christianity. See 454 U.S. at 466–68, 486–87.
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This same problem of standalone subjective offensiveness is equally fatal to Plaintiffs’ equal protection claim because “courts have rejected attempts to crosspollinate Equal Protection Clause standing jurisprudence with Establishment Clause cases.” Moore v. Bryant, 853 F.3d 245, 250 (5th Cir. 2017) (citing NAACP v. Horne, 626 F. App’x 200, 201 (9th Cir. 2015) (unpublished)).
B. Family or Members’ Familial Separations Plaintiffs allege that they have standing based on familial separation allegedly caused by the Order. They fail to discuss Bangura v. Hansen, however, in which the Sixth Circuit specifically held that a U.S. citizen spouse has no recognized liberty interest in the “denial of an immediate relative visa,” 434 F.3d 487, 496 (6th Cir. 2006), concluding that the spouse “does not have constitutional standing to challenge the denial of [the spousal visa] petition,” id. at 500. Accord Burrafato v. U.S. Dep’t of State, 523 F.2d 554, 554, 557 (2d Cir. 1975) (denying standing to an American spouse and asserting consular nonreviewability over a visa denial). The Supreme Court’s recent decision in Kerry v. Din, did not disturb these decisions, as its controlling opinion reserved judgment as to whether an American citizen had any protected interest in her husband’s entry. 135 S. Ct. 2128, 2139, 2141 (2015) (Kennedy, J., concurring).2
2 In any event, the alleged right in Din was tied to the fundamental right to 5

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Plaintiffs distinguish this case because it is not a challenge to a consular officer’s decision, but a “categorical policy decision.” Pls.’ Opp. at 17. That would turn this fundamental aspect of immigration law upside-down by granting the President, Secretary of State, and Congress less deference in their foreign-affairs and national-security decisionmaking than individual consular officers. The doctrine is instead premised on the broader separation-of-powers principle that “any policy toward aliens” is “so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1159–60 (D.C. Cir. 1999). That principle has a limited exception for a U.S. person whose own constitutional rights are allegedly violated by a particular alien’s challenged exclusion. Id. at 1163–64. But besides Plaintiffs’ freedom of speech/association claim (addressed below), that exception is inapplicable here.
Moreover, Plaintiffs fail to adequately respond to Defendants’ contention that any alleged injuries stemming from the Order’s suspension of entry are unripe given the Order’s waiver process. Although Plaintiffs contend the waiver process imposes “onerous burdens,” Pls.’ Opp. at 23, they offer no answer to the objection that they are not personally subject to the allegedly discriminatory burden, and the
marry. Din, 135 S. Ct. at 2134 (plurality opinion). Plaintiffs expressly disclaim any 6

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aliens abroad who are subject to the entry suspension have no constitutional rights against discrimination concerning entry. See United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 269–71 (1990); Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). This defect is most glaring as to the organizational Plaintiffs. For example, the ACLU speculates that the waiver process will “make[] it more complicated” for it to conduct activities such as event planning. Pls.’ Opp. at 24, but has not alleged that any planned event is scheduled to occur within the 90-day suspension, nor identified individual from the six countries invited to speak, nor specified how such an individual would be unable to obtain a waiver. See SAC ¶¶ 231–42.
C. Economic Harm The Plaintiffs also assert that the Order “ha[s] caused…significant financial loss” to themselves or their organizations. Pls.’ Opp. at 19. Plaintiffs’ purported economic injuries are insufficient to establish standing. First, such injury is both speculative and not “fairly traceable” to the Order, given that plaintiffs have failed to establish that the Order’s suspension of entry would actually preclude any specific family member (or invitee) from entry during the 90 day suspension period, especially considering the availability of waivers. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1151 (2013).
reliance on such a right. Pls.’ Opp. at 18 n.8. 7

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Second, Plaintiffs’ alleged economic injuries cannot support standing for an Establishment claim because such economic harms would be suffered equally by anyone with relatives from the six designated countries, regardless of their religion. See Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197, 207 (6th Cir. 2011) (en banc) (“[E]ven when litigants have established a substantial injury from a government action, they cannot challenge its constitutionality unless [they] can show that [they are] within the class whose constitutional rights are allegedly infringed.” (quotations omitted)). Under Jefferson County, there cannot be a “mismatch” between the alleged basis for standing and the alleged constitutional violation. Id.
To get around this discrepancy, Plaintiffs blur the line between personal and incidental effects. Plaintiffs’ alleged injuries, however, are insufficient for claims of religious discrimination when all persons (regardless of religion) with family, or organizations doing business, within the six designated countries, are affected the same. Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993). Without personally differential treatment, no amount of pointing to perceived religious stigma can get around this deficiency. See Allen v. Wright, 468 U.S. 737, 757 n.22 (1984) (“[S]tigmatic injury…requires identification of some concrete interest with respect to which
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respondents are personally subject to discriminatory treatment[.]”); Moore, 853 F.3d at 251; Mehdi v. U.S. Postal Serv., 988 F. Supp. 721, 731 (S.D.N.Y. 1997) (Sotomayor, J.). Plaintiffs therefore lack standing under Wright.
II. Plaintiffs’ Claims Fail On The Merits. A. Establishment Clause Plaintiffs insist that the Supreme Court’s decision in Mandel, is either inapplicable, Pls. Opp. at 28–30, or would allow courts to disregard the Order’s stated purpose, id. at 26–28. Plaintiffs are incorrect. First, Plaintiffs assert that Mandel does not apply to the Order, arguing that Congress alone deserves deference in adopting broad immigration policies because it has plenary power over immigration, whereas the President exercises only delegated power. “The right to” exclude aliens, however, “stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 & 543 (1950) (rejecting constitutional challenge to summary exclusion of an alien “because the power of exclusion of aliens is also inherent in the executive department of the sovereign, [and] Congress may in broad terms authorize the executive to exercise the power”). Thus, “[w]hen Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative
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power. It is implementing an inherent executive power.” Id. Here, the fact that Congress has augmented this power by expressly conferring that authority makes Mandel more appropriate, not less. See, e.g., Andrade-Garcia v. Lynch, 828 F.3d 829, 834 (9th Cir. 2016). Indeed, Mandel directly addressed the Executive branch’s exercise of those powers. 408 U.S. at 770. In this case, just as in Mandel, the Court is confronted with the President’s exercise of that immigration power.
Second, Plaintiffs suggest that Establishment Clause claims are exempt from Mandel. Although the Supreme Court has not previously applied Mandel specifically to that Clause, the case involved the same Amendment, Mandel, 408 U.S. at 769–70, and was also applied to allegations of unequal treatment, Fiallo v. Bell, 430 U.S. 787, 792–96 (1977). There is no principled basis for exempting the Establishment Clause, which “establishes a norm of conduct which the Federal Government is bound to honor—to no greater or lesser extent than any other inscribed in the Constitution.” Valley Forge, 454 U.S. at 484. Establishment claims are subject to the same “presumption in favor of the constitutionality of statutes” as other constitutional claims, Bowen v. Kendrick, 487 U.S. 589, 617 (1988), and the same justiciability principles.
Plaintiffs further argue that even if Mandel applies, it requires the Court to consider whether the Order’s stated purpose was given in “bad faith.” Pls.’ Opp. at
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26–28. Mandel makes clear, however, that determining whether the Executive Branch’s decision rests on a “facially legitimate and bona fide reason” does not include “look[ing] behind” that reason. 408 U.S. at 769–70. Courts can ensure that the stated rationale is valid, but Mandel precludes searching for ulterior motives. Id. In the Sixth Circuit, “[t]his standard may be even lower than rational basis review.” Bangura, 434 F.3d at 495; Bains v. United States, 2014 WL 3389117, at *3 (N.D. Ohio July 9, 2014). Courts in the Sixth Circuit therefore “uphold[] immigration [laws] so long as they are conceivably related to the achievement of a federal interest.” Bangura, 434 F.3d at 495 (quotations omitted).
Plaintiffs try to get around this precedent by citing Justice Kennedy’s concurrence in Din, Pls.’ Opp. at 26, which states that absent an “affirmative showing of bad faith on the part of [a] consular officer” denying a visa, “plausibly alleged with sufficient particularity,” a court may not “look behind” the Government’s exclusion decision for additional factual details. 135 S. Ct. at 2141. But Din is inapposite because refusing visas to aliens abroad does not violate Plaintiffs’ own Establishment rights. And even if courts could consider claims of bad faith for consular officers, that would not warrant second-guessing the President’s formal national-security determinations.
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Plaintiffs therefore argue that the Court may examine “readily discoverable fact[s],” should ignore the Order’s stated purpose based on campaign statements, and accept their allegations of what the Order “really” stands for. Pls.’ Opp. at 31 (quoting McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 862 (2005)). Yet Plaintiffs never confront the Supreme Court’s holding that, when “[t]he Executive...deem[s] nationals of a particular country a special threat,” “a court would be ill equipped to determine the[] authenticity and utterly unable to assess the[] adequacy” of that determination. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999). Disregarding the President’s risk assessments and foreign-policy judgments flouts this rule.3
Even if domestic Establishment Clause cases provide the proper standard of review, see Pls.’ Opp. at 30–40, those cases and their progeny are entirely distinguishable because they deal with explicitly religious endorsements. Again, McCreary and the other cases Plaintiffs rely upon concern explicitly religious displays, messages, or endorsement, many of which were expressly confirmed by official pronouncements. 545 U.S. at 868–74. McCreary thus cautioned that
3 Plaintiffs’ mistakenly suggest that because they have alleged that the President’s national security determination is a “pretext for discrimination,” this Court must accept that “factual allegation” as true. Pls.’ Opp. at 27–28. That is incorrect where the allegations are “conclusory legal allegations.” New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1050 (6th Cir. 2011).
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whether official action has an improper purpose should not be assessed by “judicial psychoanalysis of a drafter’s heart of hearts.” Id. at 862–63. Consequently, a statement should only be considered if it is both an official and one that unambiguously reveals the legislative intent without need for any “psychoanalysis.” Id. Here, however, Plaintiffs use campaign statements from before the Order’s existence, which are ambiguous at best.
Regardless, no precedent permits impugning the Order’s express nationalsecurity purpose based on extrinsic material. Plaintiffs likewise cannot dispute that the presumption of regularity applies with the utmost force to the President, and fail to refute the difficulties that “ill equipped” courts would face in attempting “to determine the authenticity” of such national-security judgments. Reno, 525 U.S. at 491. Plaintiffs suggest that these principles pose no obstacle here because the statements at issue “convey an unmistakable and impermissible message” of religious discrimination. Pls.’ Opp. at 36. But the statements’ supposed clarity is irrelevant because Plaintiffs fail to show that they reflect the government’s “official objective.” McCreary, 545 U.S. at 862. Moreover, Plaintiffs’ reliance on campaign statements ignores how “the substantive revisions reflected in [the Order] have reduced the probative value of the President’s [past] statements” and undercut any claim that “the predomina[nt] purpose of [the Order] is to
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discriminate against Muslims based on their religion.” Sarsour v. Trump, 2017 WL 1113305, at *11–12 (E.D. Va. Mar. 24, 2017); see also Washington v. Trump, 2017 WL 1045950, at *4 (W.D. Wash. Mar. 16, 2017) (refusing to “conclude that the policy changes in EO2 are minor”).
B. Equal Protection For purposes of equal protection, the Supreme Court has ordered that courts accept, under rational-basis review, a legislature’s classifications even when not made with “mathematical nicety or because it results in some inequality.” Heller v. Doe, 509 U.S. 312, 321 (1993). The President’s cautious approach of suspending entry of certain foreign nationals from six countries previously determined to pose heightened risks, while his administration reviews current screening procedures to ensure that they adequately detect potential terrorists, easily satisfies Bangura’s “lower than rational basis” test. 434 F.3d at 495. Plaintiffs may disagree with the President’s decision, but it is not for this Court to second-guess it. See, e.g., Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 1979) (“[I]t is not the business of courts to pass judgment on the decisions of the President in the field of foreign policy.”). Plaintiffs argue that Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) is inapplicable, Pls. Opp. at 41–42, but a similar national-security basis existed there, and the Second Circuit unanimously “join[ed] every circuit that ha[d] considered
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the issue in concluding that the Program [did] not violate Equal Protection[.]” Rajah, 544 F.3d at 439 (citations omitted). The Plaintiffs here are no different.
C. Freedom of Speech and Association Finally, even if any of the Plaintiffs had standing to bring a freedom of speech/association claim, the same case that would allow for such standing (Mandel) equally forecloses that claim on the merits. 408 U.S. at 770 (concluding that the First Amendment rights of American scholars and students were not violated when a Belgian scholar whom universities invited to speak was denied entry into the United States). Plaintiffs’ citation to Bays v. City of Fairborn, 668 F.3d 814 (6th Cir. 2012) is entirely inapt because that case dealt with the narrow tailoring of the time, place, and manner restrictions imposed by a city’s solicitation policy. Mandel is on all fours with the present case: Plaintiffs seek to invite aliens abroad to the United States to hear what they have to say. If Plaintiffs have standing to raise a free speech claim, Mandel controls and its requirement of a facially legitimate and bona fide reason for denying entry is satisfied. See, e.g., Ben-Issa v. Reagan, 645 F. Supp. 1556, 1562 (W.D. Mich. 1986).
CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant Defendants’ motion to dismiss.
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Respectfully submitted this 22nd day of May 2017.
CHAD A. READLER Acting Assistant Attorney General
WILLIAM C. PEACHEY Director
GISELA A. WESTWATER Assistant Director
EREZ REUVENI Senior Litigation Counsel
KATHERINE J. SHINNERS Trial Attorney
By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 joshua.press@usdoj.gov
BRIANA YUH Trial Attorney
Attorneys for Defendants
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CERTIFICATE OF SERVICE I hereby certify that on May 22, 2017, I electronically filed the foregoing DEFENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS with the Clerk of the Court for the Eastern District of Michigan by using the CM/ECF system. Notice of this filing will be sent out to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s CM/ECF system.
By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division
17

 
 2:17-cv-10310-VAR-SDD Doc # 101 Filed 05/23/17 Pg 1 of 39 Pg ID 1589

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs,

Case No. 2:17-cv-10310-VAR-SDD

v.

Honorable Victoria A. Roberts

DONALD TRUMP, et al.,

Mag. J. Stephanie D. Davis

Defendants.

BRIEF OF AMICI CURIAE CONSTITUTIONAL LAW PROFESSORS IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Kimberly Thomas (Mich. Bar #P66643) 701 South State Street 3032 South Hall Ann Arbor, MI 48109 (734) 647-4054 kithomas@umich.edu

SIMPSON THACHER & BARTLETT LLP Abram Ellis (N.Y. Bar #4402962) 900 G Street, Northwest Washington, DC 20001 (202) 636-5579 aellis@stblaw.com
Alan Turner (N.Y. Bar #4000147) Reena Mittelman (N.Y. Bar #5219761) Jerry Fang (N.Y. Bar #5417191) Patricia Yan (N.Y. Bar #5499173) 425 Lexington Avenue New York, NY 10017 (212) 455-2000 aturner@stblaw.com reena.mittelman@stblaw.com jerry.fang@stblaw.com patricia.yan@stblaw.com

Counsel for Amici Curiae

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TABLE OF CONTENTS Page
STATEMENT OF THE ISSUES PRESENTED...................................................... ii STATEMENT OF MOST APPROPRIATE AUTHORITIES ................................ iii INDEX OF AUTHORITIES.....................................................................................iv INTERESTS OF AMICI CURIAE .............................................................................1 SUMMARY OF ARGUMENT .................................................................................3 ARGUMENT .............................................................................................................4
I. United States Law Once Condoned Immigration Exclusion Based On Race And Ethnicity But Has Since Rejected Such Invidious Actions ..................................................................................4
II. The Supreme Court Has Recognized Meaningful Limits On The Political Branches’ Authority Over Immigration ........................10
III. Challenges To Immigration Decisions Are Justiciable.......................15 IV. Sections 1182(f) And 1185(a), Like Other Statutory Provisions,
Must Be Construed To Avoid Raising Serious Constitutional Questions .............................................................................................20 V. The Risks Of Undue Deference: A Return To Lessons From History .................................................................................................23 CONCLUSION ........................................................................................................25
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STATEMENT OF THE ISSUES PRESENTED 1. How the assertion of an unchecked Executive power in the immigration
context to justify the Executive Order is informed by the historical legal context that demonstrates the dangers of judicial deference to Executive immigration actions that discriminate on the basis of nationality and race. 2. What the scope of deference to the Executive should be, given the critical role of the judiciary in our constitutional system of reviewing and checking Executive actions alleged to be unconstitutional or to exceed delegated Congressional authority, whether or not those actions relate to immigration or national security. 3. Whether the claims here are justiciable, given that a variety of other challenges to governmental immigration decisions and actions have been found to be justiciable, and every other court to examine the Executive Order at issue here has reached the merits. 4. Whether the congressional delegation of authority to the President under Sections 1182(f) and 1185(a) of the Immigration and Nationality Act can be read to authorize the President to exercise powers in a manner that discriminates unconstitutionally.
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STATEMENT OF MOST APPROPRIATE AUTHORITIES Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986) Allende v. Schultz, 845 F.2d 1111 (1st Cir. 1988) Aziz v. Trump, --- F. Supp. 3d ---, No. 1:17-cv-116, 2017 WL 580855 (E.D. Va.
Feb. 13, 2017) Doe v. Trump, --- F. Supp. 3d ---, No. 17-cv-112, 2017 WL 975996 (W.D. Wis.
Mar. 10, 2017) Gomez v. United States, 490 U.S. 858 (1989) Hamdan v. Rumsfeld, 548 U.S. 557 (2006) Hawaii v. Trump, --- F. Supp. 3d ---, No. 17-cv-50, 2017 WL 1011673 (D. Haw.
Mar. 15, 2017) I.N.S. v. Chadha, 462 U.S. 919 (1983) Int’l Refugee Assistance Project v. Trump, --- F. Supp. 3d ---, No. 17-cv-361, 2017
WL 1018235 (D. Md. Mar. 16, 2017) Marbury v. Madison, 5 U.S. 137 (1803) U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) Zadvydas v. Davis, 533 U.S. 678 (2001) 8 U.S.C. § 1152(a) (§ 1152(a) of the Immigration and Nationality Act)
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INDEX OF AUTHORITIES
Page(s)
Cases
Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986) ..................................................................... 13, 18
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)..............................................................................................25
Allende v. Schultz, 845 F.2d 1111 (1st Cir. 1988)........................................................................ 13, 18
Am. Acad. of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009) .......................................................................... 13, 17
Aziz v. Trump, --- F. Supp. 3d ---, No. 1:17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) .......................................................................................................19
Bertrand v. Sava, 684 F.2d 204 (2d Cir. 1982) .................................................................................14
Boumediene v. Bush, 553 U.S. 723 (2008)..............................................................................................17
Chae Chan Ping v. United States, 130 U.S. 581 (1889)..........................................................................................7, 10
City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)..............................................................................................25
Doe v. Trump, --- F. Supp. 3d ---, No. 17-cv-112, 2017 WL 975996 (W.D. Wis. Mar. 10, 2017).......................................................................................................19
Fiallo v. Bell, 430 U.S. 787 (1977)..............................................................................................14
Fisher v. Univ. of Tex. at Austin, -- U.S. ---, 133 S. Ct. 2411 (2013) ........................................................................24
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Fong Yue Ting v. United States, 149 U.S. 698 (1893)................................................................................................7
Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014) .................................................................................12
Gomez v. United States, 490 U.S. 858 (1989)..............................................................................................20
Guessous v. Fairview Prop. Invs., 828 F.3d 208 (4th Cir. 2016) ..................................................................................7
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)..............................................................................................16
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)..............................................................................................17
Hawaii v. Trump, --- F. Supp. 3d ---, No. 17-cv-50, 2017 WL 1011673 (D. Haw. Mar. 15, 2017) ...............................................................................................................19
Hazama v. Tillerson, 851 F.3d 706 (7th Cir. 2017) ................................................................................17
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987)....................................................................................... 12, 16
I.N.S. v. Chadha, 462 U.S. 919 (1983)..............................................................................................11
I.N.S. v. St. Cyr, 533 U.S. 289 (2001)..............................................................................................21
Int’l Refugee Assistance Project v. Trump, --- F. Supp. 3d ---, No. 17-cv-361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) ...............................................................................................................19
Jean v. Nelson, 472 U.S. 846 (1985)................................................................................. 16, 21, 22
Johnson v. Robison, 415 U.S. 361 (1974)..............................................................................................20
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Kerry v. Din, --- U.S. ---, 135 S. Ct. 2128 (2015)................................................................ 13, 14
Kleindienst v. Mandel, 408 U.S. 753 (1972)........................................................................... 12, 13, 14, 17
Korematsu v. United States, 323 U.S. 214 (1944)................................................................................. 23, 24, 25
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953)................................................................................................8
Louhghalam v. Trump, --- F. Supp. 3d ---, No. 17-cv-10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017) .........................................................................................................19
Loving v. Virginia, 388 U.S. 1 (1967)..................................................................................................25
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1999)..............................................................................................15
Mandel v. Mitchell, 325 F. Supp. 620 (E.D.N.Y. 1971) .......................................................................17
Marbury v. Madison, 5 U.S. 137 (1803)..................................................................................................10
Negusie v. Holder, 555 U.S. 511 (2009)....................................................................................... 12, 16
Oyama v. California, 332 U.S. 633 (1948)..............................................................................................10
Printz v. United States, 521 U.S. 898 (1997)..............................................................................................12
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) .................................................................................15
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)..............................................................................................24
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Sarsour v. Trump, --- F. Supp. 3d ---, No. 1:17-cv-120, 2017 WL 1113305 (E.D. Va. Mar. 24, 2017).......................................................................................................20
Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953)................................................................................................9
Spokeo, Inc. v. Robins, --- U.S. ---, 136 S. Ct. 1540 (2016).......................................................................16
U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954)....................................................................................... 11, 12
U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950)..........................................................................................8, 16
United States v. Ju Toy, 198 U.S. 254 (1905)................................................................................................7
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982)..............................................................................................16
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ..............................................................................19
Webster v. Doe, 486 U.S. 592 (1988)..............................................................................................20
Zadvydas v. Davis, 533 U.S. 678 (2001)................................................................................. 10, 20, 21
Legislative Materials
70 Cong. Rec. 3620 (1929) (statement of Rep. William Thomas Fitzgerald) ...............................................................................................................6
70 Cong. Rec. 4907 (1929) (statement of Rep. Jed Johnson) ...................................6
H.R. Rep. No. 45-62 (1879).......................................................................................5
H.R. Rep. No. 68-350 (1924).....................................................................................6
H.R. Res. 683, 112th Cong. (2012)............................................................................8 vii

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REPORT OF THE COMM’N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, PERSONAL JUSTICE DENIED (1982).................................................24
S. Res. 201, 112th Cong. (2011)................................................................................8 Statutes 22 U.S.C. § 6411 ......................................................................................................23 8 U.S.C. § 1182(a)(27).............................................................................................13 8 U.S.C. § 1182(a)(3)...............................................................................................23 8 U.S.C. § 1182(f) ............................................................................................. 22, 23 8 U.S.C. § 1185(a) ............................................................................................ 22, 23 Act of April 27, 1904, ch. 1630, 33 Stat. 428 (1904) ................................................5 Act of February 5, 1917, ch. 29, § 3, 39 Stat. 874 (1917) .........................................5 Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (1882).....................................5 Chinese Exclusion Repeal Act of 1943, ch. 344, 57 Stat. 600 (1943) ......................8 Expatriation Act of 1907, ch. 2534, § 3, 34 Stat. 1228 (1907)..................................6 Immigration Act of 1924, ch. 190, § 11, 43 Stat. 153 (1924)....................................6 Immigration Act of 1924, ch. 190, § 13, 43 Stat. 153 (1924)....................................6 Immigration and Nationality Act, ch. 477, § 311, 66 Stat. 163 (1952) .....................8 Immigration and Nationality Act, Pub. L. No. 89-236, sec. 202, § 2(a),
79 Stat. 911 (1965) (codified at 8 U.S.C. § 1152(a)) .......................................8, 22 Naturalization Act of 1790, ch. III, 1 Stat. 103 (1790)..............................................5 Page Act of 1875, ch. 141, 18 Stat. 477 (1875).........................................................5 Rules and Regulations Proclamation No. 4417, An American Promise, 41 Fed. Reg. 7,741
(Feb. 20, 1976) ......................................................................................................24
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Other Authorities
Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933 (1995) ............................................................................................9
Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1 (1998) ......................................................................................................................9
Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 479 (2010)....................................................11
HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES (2006)..............................5
Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990) ........................................................................................9
IAN HANEY-LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996) ............................................................................................................7
Jamal Greene, The Anticanon, 125 Harv. L. Rev. 380 (2011) ................................23
Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proc. Am. Phil. Soc’y 117 (2016) ........................9
Khaled A. Beydoun, Between Muslim and White: The Legal Construction of Arab American Identity, 69 N.Y.U. Ann. Surv. Am. L. 29 (2013) ............................................................................................................7
Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. Rev. 1575 (2002) ......................................................................................................................7
LOUIS HENKIN, THE AGE OF RIGHTS (1990) ............................................................10
Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1 (1984) ......................................................................................................9
Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255 (1984) ..........................................9
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T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365 (2002)............................9
Vicki C. Jackson, Standing and the Role of Federal Courts: Triple Error Decisions in Clapper v. Amnesty International USA and City of Los Angeles v. Lyons, 23 Wm. & Mary Bill Rts. J. 127 (2014) .....................16
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INTERESTS OF AMICI CURIAE Amici curiae are scholars of constitutional law, federal court jurisdiction, and the law of immigration, national security, and citizenship.1 Because of our areas of expertise, Amici write to provide an overview of the history and governing legal principles of judicial review of Executive Branch decisions related to immigration and national security. Given the jurisprudence, Amici believe that this Court should reach the merits of the claims that the Executive’s actions were in excess of its statutory authority and violated the Constitution. Amici are the following scholars2: Bruce Ackerman, Sterling Professor of Law and Political Science, Yale Law School; Janet Cooper Alexander, Frederick I. Richman Professor of Law, Emerita, Stanford Law School; Stuart Banner, Norman Abrams Professor of Law, UCLA School of Law;
1 Amici certify that no party’s counsel authored any part of this brief, and no party or person other than Amici or their counsel made any monetary contribution intended to fund preparation or submission of this brief. All parties have consented to the filing of this amicus curiae brief. 2 Institutional affiliations are included for identification purposes only and do not represent the views of the institutions.
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Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law;
Gabriel J. Chin, Edward L. Barrett Chair of Law and Martin Luther King, Jr. Professor of Law, UC Davis School of Law;
Kristin Collins, Professor of Law and Associate Dean for Intellectual Life, Boston University School of Law;
Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia Law School;
Geoffrey Hoffman, Clinical Associate Professor, University of Houston Law Center;
Catherine Y. Kim, Associate Professor of Law, University of North Carolina School of Law;
Hiroshi Motomura, Susan Westerberg Prager Professor of Law, UCLA School of Law;
Burt Neuborne, Norman Dorsen Professor of Civil Liberties, New York University School of Law;
Gene R. Nichol, Boyd Tinsley Distinguished Professor of Law, University of North Carolina School of Law;
Judith Resnik, Arthur Liman Professor of Law, Yale Law School; Jonathan Weinberg, Professor of Law, Wayne State University Law School.
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SUMMARY OF ARGUMENT Amici make four points. First, it is essential to evaluate the Executive’s assertions of unfettered discretion, plenary power, and non-reviewability of decisions related to immigration in the historical context of U.S. immigration law and policy. This history demonstrates the harm of excessive deference to Executive Branch claims that national security requires the government to target groups based on nationality and race. The powerful exemplar is, of course, the evacuation and detention of more than 100,000 Japanese-Americans during World War II, to which the courts acceded and for which both the Executive and Congress later apologized. Since World War II, however, immigration law—as reflected both in legislation and in the jurisprudence of the Supreme Court—has evolved to reflect emerging norms of racial equality and individual liberty. Second, courts have developed and articulated meaningful constraints on the immigration authority of the political branches. While Congress and the President are entitled to deference on matters related to immigration and national security, they have no authority to ignore the Constitution. Animated by concerns relating to individual rights, separation-of-powers, and federalism, courts have sought to ensure that the political branches do not violate constitutional prohibitions on arbitrary decision-making or promote invidious discrimination.
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Third, Amici explain the role of justiciability doctrines in the development of these constraints. Although petitioners in the array of litigated immigration cases have not always succeeded in overturning decisions on the merits, courts have generally reached the merits rather than rely on justiciability doctrines such as ripeness and standing to avoid making decisions. Those merits decisions underscore that the refusal to permit entry to individuals affects not only persons outside the United States, but also citizen and U.S. resident family members, employers, universities, States, localities and the public at large.
Fourth, when responding to claims related to immigration, courts have regularly sought to examine whether, under the doctrine of constitutional avoidance, statutes should be read to allow unfettered Executive Branch authority. Even in the face of text seeming to constrain judicial review, the courts have shouldered the responsibility of ensuring that America’s rule of law applies to actions of American officials.
ARGUMENT I. United States Law Once Condoned Immigration Exclusion Based On
Race And Ethnicity But Has Since Rejected Such Invidious Actions No student of United States history can ignore that our Nation’s immigration policies once routinely employed notions of racial and cultural inferiority to exclude classes of noncitizens as threats to our safety and stability. And when these practices were challenged, the government regularly asserted that its authority was
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unconstrained—or “plenary.” But the lesson to be drawn from this unhappy history is the importance of America’s rejection of racial and ethnic restrictions on immigration. Just as Congress and the courts were once central in permitting such discrimination, so too Congress and the courts have been essential to the revision of those practices. Below, we sketch the rise and fall of overt discrimination in immigration based on race and ethnicity.
From the late eighteenth century through World War II, both Congress and the courts condoned immigration exclusion based on race and ethnicity. As early as the Naturalization Act of 1790, Congress restricted immigrant eligibility for citizenship to “free white person[s].” Ch. III, 1 Stat. 103 (1790). Beginning in 1875, Congress enacted a series of laws targeting and ultimately prohibiting virtually all Chinese immigration. See, e.g., Page Act of 1875, ch. 141, 18 Stat. 477 (1875); Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (1882); Act of April 27, 1904, ch. 1630, 33 Stat. 428 (1904). Congress asserted that these measures were needed to remedy “a standing menace to the social and political institutions of the country.” H.R. Rep. No. 45-62, at 3 (1879). In 1917, Congress expanded the scope of excludability by creating an “Asiatic Barred Zone,” stretching from Saudi Arabia to the Polynesian islands. See Act of February 5, 1917, ch. 29, § 3, 39 Stat. 874, 876 (1917); see generally HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES 103 (2006).
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The Immigration Act of 1924 went further, barring entry of all immigrants unless they were eligible for citizenship, which at that time encompassed only “free white persons” and “aliens of African nativity and . . . persons of African descent.” See ch. 190, § 13, 43 Stat. 153, 161–62 (1924); H.R. Rep. No. 68-350, at 6 (1924) (internal quotation marks omitted). The Act also imposed strict national-origin quotas. See § 11, 43 Stat. at 159–60. Again, such measures were characterized as necessary to our national survival: “If . . . the principle of individual liberty, guarded by a constitutional government created on this continent nearly a century and a half ago, is to endure, the basic strain of our population must be maintained . . . .” H.R. Rep. No. 68-350, at 13.
As hostility emerged toward other groups, claims were made that they, too, would bring poverty, disease, alcohol, labor competition, and other challenges to America’s identity. One Representative claimed that “hordes of undesirable aliens . . . [were] undermining [the] health, integrity, and moral fiber of the forthcoming generations.” 70 Cong. Rec. 4907 (1929) (statement of Rep. Jed Johnson). Another argued the need to stop foreigners from “poisoning the American citizen.” 70 Cong. Rec. 3620 (1929) (statement of Rep. William Thomas Fitzgerald). Moreover, gender and racial stereotypes interacted, as legislation mandated that American women who married noncitizens lost their United States citizenship. Expatriation Act of 1907, ch. 2534, § 3, 34 Stat. 1228, 1228–29 (1907).
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The courts likewise endorsed invidious exclusions through references to the “plenary” power of the political branches over immigration. For example, in Chae Chan Ping v. United States, a unanimous Court reasoned that in light of the “Oriental invasion” posing a “menace to our civilization,” if Congress “considers the presence of foreigners of a different race in this country . . . to be dangerous to its peace and security, their exclusion is not to be stayed.” 130 U.S. 581, 595, 606 (1889); see also United States v. Ju Toy, 198 U.S. 254, 259–60, 263–64 (1905) (denying habeas review over exclusion of individual claiming U.S. citizenship); Fong Yue Ting v. United States, 149 U.S. 698, 732 (1893) (sustaining expulsion of U.S. resident for failing to produce a “white” witness to testify to his lawful presence). Such discrimination frequently conflated race with national origin and ethnicity.3
Beginning in the middle of the twentieth century, however, both Congress and the Supreme Court moved decisively away from these attitudes. In 1943, Congress repealed the prohibition on Chinese admissions. See Chinese Exclusion Repeal Act
3 Today, the conflation of Muslim and Arab identity and the discrimination against “persons who ‘appear Middle Eastern, Arab, or Muslim’” have been well chronicled. See generally, e.g., Khaled A. Beydoun, Between Muslim and White: The Legal Construction of Arab American Identity, 69 N.Y.U. Ann. Surv. Am. L. 29 (2013); Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. Rev. 1575 (2002); IAN HANEY-LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE 106 (1996); see also Guessous v. Fairview Prop. Invs., 828 F.3d 208, 225 (4th Cir. 2016) (noting that anti-Muslim animus may constitute “race” discrimination).
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of 1943, ch. 344, 57 Stat. 600 (1943).4 In 1952, Congress guaranteed that the “right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex . . . .” Immigration and Nationality Act, ch. 477, § 311, 66 Stat. 163, 239 (1952). Then, in 1965, it finally rejected the premise of racialized national exclusivity by abandoning the national-origin immigrant quota systems. See Immigration and Nationality Act, Pub. L. No. 89-236, 79 Stat. 911, 911–12 (1965). Moreover, it specifically provided that with regard to the issuance of immigrant visas, “[n]o person shall receive any preference or priority or be discriminated against . . . because of his race, sex, nationality, place of birth, or place of residence.” Id. at 911.
Within the judiciary, the insistence on constitutional protections in the immigration context initially was uneven. On the one hand, Kwong Hai Chew v. Colding rejected the contention that a lawful permanent resident could be excluded from the United States without being given notice of the charges justifying his exclusion and an opportunity to object. 344 U.S. 590, 603 (1953). On the other hand, both U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), which sustained exclusion of a war bride without any hearing, and Shaughnessy v. U.S. ex rel. Mezei,
4 Decades later, both the House and Senate apologized for the government’s policies of Chinese exclusion. See H.R. Res. 683, 112th Cong. (2012); S. Res. 201, 112th Cong. (2011).
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345 U.S. 206 (1953), which upheld the exclusion and indefinite detention of a returning noncitizen without a hearing, represented steps backwards.
Subsequent to those Cold War era decisions, however, the Supreme Court— while continuing to recognize the need for appropriate deference—retreated from the Knauff/Mezei licensing of unfettered government power in immigration decisions. See generally Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933 (1995). A wealth of scholarship has chronicled this shift in doctrine as due process and equal protection norms came to be reflected—albeit with variations— in immigration law. See, e.g., Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 4 (1984); Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545, 547 (1990); T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365, 365–66 (2002); Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1, 54– 58 (1998); Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proc. Am. Phil. Soc’y 117, 133 (2016); Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255, 257–58 (1984).
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The vision of law that supported judicial approval of such discriminatory legislation and produced pejoratives such as “‘the yellow peril,’” Oyama v. California, 332 U.S. 633, 658–59 (1948) (Murphy, J., concurring), have come to be seen as tragic moments in our Nation’s history. As Professor Louis Henkin put it, the invidious discrimination sanctioned in Chae Chan Ping had become “an embarrassment”; indeed, Chae Chan Ping and cases like it represented “relics of a bygone, unproud era.” LOUIS HENKIN, THE AGE OF RIGHTS 137 (1990). II. The Supreme Court Has Recognized Meaningful Limits On The
Political Branches’ Authority Over Immigration Our democratic system obligates the judiciary to constrain any unconstitutional excesses of the political branches. See Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). Notwithstanding the deference afforded to immigration regulation by the political branches, the Supreme Court has imposed meaningful constraints on legislative and Executive overreach. The Court’s jurisprudence on immigration reflects its oversight of both individual constitutional rights as well as structural separation-of-powers norms. For example, in Zadvydas v. Davis, 533 U.S. 678, 695 (2001), rejecting the Executive’s claim of authority to indefinitely detain a noncitizen who had been ordered deported but could not be repatriated to another country, the Court emphasized that even in the realm of immigration, the political branches remain “subject to important constitutional limitations.”
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Further, the Supreme Court has enforced structural norms designed to protect against “arbitrary” immigration decisions by any single branch of government. In I.N.S. v. Chadha, 462 U.S. 919 (1983), the Court rejected Congress’s attempt to impose a one-house legislative veto over an Executive Branch decision to deport a particular alien, emphasizing that the procedural requirements of bicameralism and presentment were necessary “to protect the whole people from improvident laws,” to ensure that federal policymaking is subject to “full study and debate in separate settings,” and to “preclud[e] final arbitrary action of one person.” Id. at 951.
Similarly, the Court has exercised meaningful review over agencies’ immigration decisions to protect separation-of-powers norms requiring careful deliberation, reasoned decision-making, and non-arbitrariness, just as it has over administrative decisions outside of the immigration context. See, e.g., Gillian E. Metzger, Ordinary Administrative Law as Constitutional Common Law, 110 Colum. L. Rev. 479, 499 (2010). U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), is illustrative. There, the Supreme Court held that the Attorney General deprived a noncitizen of a fair hearing on an application for discretionary relief from removal when he circulated the alien’s name on a list of “‘unsavory’” characters who should be deported. Id. at 264. The Court concluded that, although the Attorney General retained ultimate discretionary authority to grant or deny such relief, the Attorney General could not circumvent regulatory procedures requiring the Board of
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Immigration Appeals to first render judgment on such applications. Id. at 267; see also I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987) (rejecting Executive’s interpretation of statutory term “well-founded fear of persecution” for asylum admissions); Negusie v. Holder, 555 U.S. 511, 514 (2009) (rejecting Executive’s interpretation of provision disqualifying individuals who were “coerced” into persecuting others from eligibility for asylum). In sum, notwithstanding the discretion properly recognized in the political branches with respect to many aspects of immigration law, the courts remain responsible for ensuring that those powers are exercised consistently with constitutional norms.5
To be sure, when reviewing the merits of immigration decisions, courts have sometimes deferred to the Executive’s judgments. In Kleindienst v. Mandel, 408 U.S. 753, 769–70 (1972), the Court held that the Attorney General’s decision to deny a waiver of inadmissibility to an alien would be sustained as long as the government provided a “facially legitimate and bona fide reason” for its decision. Subsequent courts generally have been unwilling to “look behind” the government’s stated justification when the justification itself was facially legitimate and bona fide. See,
5 Further constraints on the political branches’ immigration powers have come from the structure of “Our Federalism,” illustrated by decisions applying—in the immigration context—the non-commandeering principle of Printz v. United States, 521 U.S. 898 (1997). See, e.g., Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) (“[T]he federal government cannot command the government agencies of the states to imprison persons of interest to federal officials.”).
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e.g., Kerry v. Din, --- U.S. ---, 135 S. Ct. 2128 (2015) (Kennedy, J., concurring) (denial premised on terrorist activity); Am. Acad. of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009) (denial premised on material support for terrorism).
Such deference, however, does not amount to a judicial rubber stamp. To the contrary, courts have shown less deference when the government’s stated justifications raised constitutional concerns. For example, in both Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986), and Allende v. Schultz, 845 F.2d 1111 (1st Cir. 1988), the government denied visas to noncitizens based on their affiliation with groups deemed hostile to the United States. The Executive cited to its broad statutory discretion under 8 U.S.C. § 1182(a)(27), which barred the entry of aliens who “seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States.” While acknowledging Mandel’s standard of deference, the First Circuit and the D.C. Circuit interpreted the statute narrowly to bar an alien’s entry only if the reason for the threat to public interest, welfare, safety, or security was “independent of the fact of membership in or affiliation with the proscribed organization.” Abourezk, 785 F.2d at 1058 (emphasis in original); see also Allende, 845 F.2d at 1116.
That approach is consistent with Justice Kennedy’s concurrence in Kerry v. Din, which involved the denial of a visa to the spouse of a United States citizen.
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Justice Kennedy’s opinion—joined by Justice Alito (thereby providing a majority to sustain the visa denial)—concluded that the government had provided a “facially legitimate and bona fide” reason for its decision based on its individualized conclusion that Din’s husband had been involved in terrorist activity. 135 S. Ct. at 2140. But Din did not involve allegations of invidious discrimination or arbitrary classifications, and Justice Kennedy noted that under Mandel, an “affirmative showing of bad faith” would require a court to “‘look behind’” the stated reasons for a decision. Id. at 2141; see also Bertrand v. Sava, 684 F.2d 204, 212 (2d Cir. 1982) (holding that “discretion may not be exercised to discriminate invidiously against a particular race or group or to depart without rational explanation from established policies,” and that such exercise would fail Mandel’s standard). These cases reflect that the government’s reasons must be both “facially legitimate” and “bona fide,” and where the government’s stated reasons rely on constitutionally suspect and arbitrary classifications, courts will exercise closer scrutiny.
Pursuant to such scrutiny, courts have sometimes sustained the use of suspect or quasi-suspect classifications in immigration decisions. In Fiallo v. Bell, the Court sustained a legislative provision denying preferential immigration status based on the relationship between an illegitimate child and his or her biological father. 430 U.S. 787, 794 (1977). And in Rajah v. Mukasey, the Second Circuit upheld the special registration program implemented shortly after 9/11 requiring non-
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immigrant males over the age of 16 from twenty-five countries, all but one of which was predominantly Muslim, to appear for registration and fingerprinting and to present immigration documents. 544 F.3d 427, 435–39 (2d Cir. 2008).
But neither race nor ethnicity nor religion is a facially legitimate reason for excluding aliens, and national-origin classifications are upheld only in narrow circumstances. Indeed, even in Rajah, the court “agree[d] that a selective prosecution based on [] animus [toward Muslims] would call for some remedy.” Id. at 438–39 (finding, however, no evidence of “improper animus toward Muslims”). As Rajah demonstrates, while the political branches may sometimes employ disfavored classifications to regulate immigration, courts will carefully scrutinize such classifications—especially where animus might be at issue. III. Challenges To Immigration Decisions Are Justiciable
Doctrines of justiciability represent important concerns about when the federal judiciary should assess claims of violations of legal rights. The now-classic statement of the standing doctrine comes from Justice Scalia’s plurality opinion in Lujan v. Defenders of Wildlife: To establish standing, a plaintiff must allege (1) an “injury in fact” that is (2) “fairly . . . trace[able] to the challenged action of the defendant,” and that is (3) “likely” to be “redressed by a favorable decision.” 504 U.S. 555, 560–61 (1999) (citations omitted). The injury-in-fact must be both concrete and particularized. See Spokeo, Inc. v. Robins, --- U.S. ---, 136 S. Ct. 1540,
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1545 (2016). This requirement helps ensure that federal courts resolve legal problems in a “factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). However, while standing and other justiciability doctrines enshrine important separation-of-powers principles, they should not be used to insulate large categories of political branch behavior from judicial review. See generally Vicki C. Jackson, Standing and the Role of Federal Courts: Triple Error Decisions in Clapper v. Amnesty International USA and City of Los Angeles v. Lyons, 23 Wm. & Mary Bill Rts. J. 127 (2014).
Supreme Court jurisprudence makes clear that even when noncitizens do not have a “right” to enter or to remain in the United States, they can be heard on the merits of their claims that they were treated unlawfully. See, e.g., Negusie, 555 U.S. at 513–15 (discretionary denial of asylum); Cardoza-Fonseca, 480 U.S. at 424–25 (same); Jean v. Nelson, 472 U.S. 846, 853–54 (1985) (discretionary grants of parole for migrants without documents); Accardi, 347 U.S. at 266–68 (discretionary suspension of deportation). The Supreme Court has even addressed the merits of claims brought by noncitizens outside the United States believed to have engaged in terrorism. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006). In each case, the Court concluded that while Executive Branch claims based on national security are properly entitled to significant deference, that deference is not a “‘blank check.’” Id.
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at 576–78, 636 (2006) (Breyer, J., concurring) (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion)); see also Boumediene v. Bush, 553 U.S. 723, 771–72 (2008).
The Court has further found that U.S. citizens and residents have standing to challenge denial of a visa to a noncitizen when it implicates their own constitutional interests. In Mandel, the Court held that the First Amendment interests of American professors who had invited Mandel to speak at their conferences made the case justiciable because the professors themselves suffered a constitutionally cognizable injury. The lower court explained:
Here the plaintiffs other than Mandel are directly involved with Mandel’s entry because they have invited him, and they expect to participate in meeting with him or expect to be among his auditors. No more is required to establish their standing. . . . The special relation of plaintiffs to Mandel’s projected visit gives them a specificity of interest in his admission, reinforced by the general public interest in the prevention of any stifling of political utterance, that abundantly satisfies ‘standing’ requirements. Mandel v. Mitchell, 325 F. Supp. 620, 632 (E.D.N.Y. 1971). Circuit courts have followed this approach. See, e.g., Hazama v. Tillerson, 851 F.3d 706, 707 (7th Cir. 2017) (holding that district court improperly concluded it lacked jurisdiction to review visa denial); Am. Acad. of Religion, 573 F.3d at 118 (exercising jurisdiction over visa denial). In addition, where plaintiffs challenge a policy of visa denials rather than the application of a concededly legitimate policy to a particular individual, the case
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remains justiciable regardless of whether particular individuals have been denied or granted a visa pursuant to the policy. For example, in Abourezk, 785 F.2d at 1043, the government had denied visas to several groups of noncitizens on the basis of the applicants’ membership with organizations or governments hostile to the United States. The government argued that there was no live case or controversy because the State Department considers each visa application on a case-by-case basis. Rejecting that contention, the Court of Appeals concluded that “the reasons for the visa denials offered . . . indicate that the prospect of future denials of applications . . . is a genuine, and not merely a theoretical, possibility.” Id. at 1052. Similarly, in Allende, the court held that the case was not moot even though the applicant had ultimately obtained permission to enter:
Although the specific application of that policy against Allende in March 1983 is moot, the validity of that policy in general remains a live controversy. And since the existence of the policy continues to effect [sic] the actions of the plaintiffs who may reasonably expect that the government will oppose future plans to extend speaking invitations to Allende, we find the Article III case or controversy requirement satisfied. 845 F.2d at 1115 n.7. In both cases, the government’s general policy of denying visas to members of particular organizations rendered the injury sufficiently likely even if the policy was not applied uniformly in every case. Consistent with these principles, all of the federal courts that have examined the January 27 Executive Order addressed the merits, and all but one found that
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questions of its constitutional infirmity warranted enjoining the Order’s enforcement. In Washington v. Trump, 847 F.3d 1151, 1164 (9th Cir. 2017), a unanimous Ninth Circuit panel concluded that the State plaintiffs had established standing to challenge the Order and were likely to succeed on the merits of their due process claims. In Aziz v. Trump, --- F. Supp. 3d ---, No. 1:17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017), a Virginia district court found that the Commonwealth of Virginia had standing; a likelihood of success on the merits of its Establishment Clause claim in light of the government’s public statements regarding its policy; and that evidence of bad faith precluded deference to the government’s stated rationale under the “facially legitimate and bona fide reason” standard. But cf. Louhghalam v. Trump, --- F. Supp. 3d ---, No. 17-cv-10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017) (denying extension of temporary restraining order).
Likewise, all four district courts considering the legality of the revised March 6 Executive Order have reached the merits, and three enjoined implementation of that Order, finding that it raises the same constitutional concerns as the original Order. See Int’l Refugee Assistance Project v. Trump, --- F. Supp. 3d ---, No. 17-cv361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) (finding likelihood of success on Establishment Clause claim); Hawaii v. Trump, --- F. Supp. 3d ---, No. 17-cv-50, 2017 WL 1011673 (D. Haw. Mar. 15, 2017) (same); Doe v. Trump, --- F. Supp. 3d ---, No. 17-cv-112, 2017 WL 975996 (W.D. Wis. Mar. 10, 2017) (finding plaintiff’s
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claims “have at least some chance of prevailing for the reasons articulated by other courts” to warrant temporary restraining order). But see Sarsour v. Trump, --- F. Supp. 3d ---, No. 1:17-cv-120, 2017 WL 1113305 (E.D. Va. Mar. 24, 2017) (denying motion for temporary restraining order). None of these courts refused to consider the plaintiffs’ claims on justiciability grounds. IV. Sections 1182(f) And 1185(a), Like Other Statutory Provisions, Must Be
Construed To Avoid Raising Serious Constitutional Questions It is a “cardinal principle” of statutory interpretation that when an Act of Congress raises “a serious doubt” as to its constitutionality, the Supreme Court “will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Zadvydas, 533 U.S. at 689 (internal quotation marks omitted). The Supreme Court has repeatedly emphasized that it will “avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.” Gomez v. United States, 490 U.S. 858, 864 (1989). Moreover, statutes in tension with basic constitutional values are construed in accord with strong “clear statement” presumptions, requiring that—in the absence of explicit language—a statute will not be interpreted to trench on those fundamental values. See, e.g., Webster v. Doe, 486 U.S. 592, 603–05 (1988); Johnson v. Robison, 415 U.S. 361, 373–74 (1974). Recognizing that the political branches’ regulation of immigration “is subject to important constitutional limitations,” Zadvydas, 533 U.S. at 695, the Supreme
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Court has repeatedly applied the canon of constitutional avoidance to limit immigration provisions that on their face appeared to confer unconstrained authority. In I.N.S. v. St. Cyr, 533 U.S. 289, 311 (2001), for instance, the Court rejected the government’s claim that a statute providing that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed” certain crimes precluded judicial review over a habeas challenge. Concluding that such a reading would raise serious constitutional questions under the Suspension Clause, the Court held that the denial of discretionary relief for a removable alien is subject to judicial review. In Zadvydas, too, where the statute contained no time limit on the detention of certain aliens, the Court read the statute to include an implicit reasonableness limitation and emphasized that “[w]e have read significant limitations into other immigration statutes in order to avoid their constitutional invalidation.” 533 U.S. at 689.
Likewise, in Jean v. Nelson, the Supreme Court rejected the Eleventh Circuit’s ruling that the Executive Branch may deny parole to arriving aliens on the basis of race or national origin notwithstanding Equal Protection guarantees. 472 U.S. 846 (1985). The Court held that the lower court had erred in failing to employ the doctrine of constitutional avoidance. Although Congress had delegated to the Executive broad discretion to “parole into the United States temporarily under such conditions as he may prescribe . . . any alien applying for admission into the United
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States,” the Court recognized that such delegation did not authorize decisions on the basis of race or national origin. Id. at 855–56.
Like the provision at issue in Jean v. Nelson, the provisions relied upon by the government here—sections 1182(f) and 1185(a)—appear to grant broad discretion to the Executive Branch. See 8 U.S.C. § 1182(f); 8 U.S.C. § 1185(a). Just as the Supreme Court did in Jean v. Nelson, this Court should read those broad delegations of authority in a manner to avoid reaching thorny questions concerning the constitutionality of arbitrarily excluding individuals from the United States on the basis of race, ethnicity, national origin, or religion. Such a reading is particularly warranted in light of Congress’s explicit prohibition against discrimination in section 1152(a). That provision, part of the Immigration Act of 1965 enacted after sections 1182(f) and 1185(a), guarantees: “No person shall . . . be discriminated against in the issuance of an immigrant visa because of [the person’s] race, sex, nationality, place of birth, or place of residence . . . .” Pub. L. No. 89-236, sec. 202, § 2(a), 79 Stat. 911 (1965) (codified at 8 U.S.C. § 1152(a)). Concededly, section 1152(a) does not on its face extend to the issuance of nonimmigrant visas, which were not the focus of the Immigration Act of 1965, nor does it prohibit discrimination on the basis of religion. Nonetheless, it reflects a congressional and constitutional norm disfavoring traditionally suspect classifications. The revised Order is also in tension
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with the specific statutory criteria for excluding persons believed to be involved in terrorist activity. See 8 U.S.C. § 1182(a)(3).6
Given the seriousness of the constitutional issues raised by the Executive Order of March 6, 2017, the canon of constitutional avoidance compels reading sections 1182(f) and 1185(a) as complying with the anti-discrimination norms enacted by Congress and embedded in the Constitution. V. The Risks Of Undue Deference: A Return To Lessons From History
Judicial deference to Government assertions of national security threats posed by particular nationalities or ethnicities has had tragic results, as exemplified most powerfully by the courts’ response to Japanese internment during World War II. Korematsu v. United States, 323 U.S. 214 (1944), has rightly become part of an “anticanon”—deployed as an example of what United States law no longer accepts as constitutional. See Jamal Greene, The Anticanon, 125 Harv. L. Rev. 380, 396, 456–60 (2011). In Korematsu, the Supreme Court, by a 6-3 vote, deferred to the government’s assertion that national security required the detention of over 100,000 Japanese-Americans based on their ethnicity alone. 323 U.S. at 218–19. A
6 The revised Order is also at odds with this Nation’s leadership role in protecting religious freedom in both domestic and international settings. In 1998, Congress established an Office of International Religious Freedom in the State Department, which prepares Annual Reports on International Religious Freedom. See 22 U.S.C. § 6411. This congressional directive is inconsistent with the notion that Congress intended to authorize the President to discriminate on the basis of religion.
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Congressional Commission later concluded that no evidence supported the claim of military necessity for internment, and that it was instead the result of “race prejudice, war hysteria and a failure of political leadership.” See REPORT OF THE COMM’N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, PERSONAL JUSTICE DENIED 18 (1982). President Ford formally terminated the Order in 1974, calling it a “setback to fundamental American principles” and urging the Nation “to resolve that this kind of action shall never again be repeated.” Proclamation No. 4417, An American Promise, 41 Fed. Reg. 7,741 (Feb. 20, 1976). And in 1984, the district court granting Fred Korematsu a writ of coram nobis characterized his case as a “constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees.” Korematsu v. United States, 584 F. Supp. 1406, 1420 (N.D. Cal. 1984).
One more aspect of Korematsu bears elaboration. The Court has come to invoke the decision for the proposition that strict scrutiny applies to racial classifications under the equal protection doctrine. “‘All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.’” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 291 (1978) (quoting Korematsu, 323 U.S. at 216); see also Fisher v. Univ. of Tex. at Austin, --- U.S. ---, 133 S. Ct. 2411, 2422–23 (2013) (Thomas, J., concurring);
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Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214 (1995); Loving v. Virginia, 388 U.S. 1, 11 (1967). As the Court explained in City of Richmond v. J.A. Croson Co., “[t]he history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis.” 488 U.S. 469, 501 (1989) (citing Korematsu, 323 U.S. at 235–40).
CONCLUSION Plaintiffs’ claims regarding the legality and constitutionality of the March 6, 2017 Executive Order are properly before this Court. Amici respectfully support Plaintiffs’ opposition to Defendants’ motion to dismiss their claims.

Dated: May 23, 2017

Respectfully submitted,

/s/ Kimberly Thomas . Kimberly Thomas (Mich. Bar #P66643) 701 South State Street 3032 South Hall Ann Arbor, MI 48109 (734) 647-4054 kithomas@umich.edu

SIMPSON THACHER & BARTLETT LLP

/s/ Abram Ellis

.

Abram Ellis (N.Y. Bar #4402962)

900 G Street, Northwest

Washington, DC 20001

(202) 636-5579

aellis@stblaw.com

Counsel for Amici Curiae

Alan Turner (N.Y. Bar #4000147) Reena Mittelman (N.Y. Bar #5219761) Jerry Fang (N.Y. Bar #5417191) Patricia Yan (N.Y. Bar #5499173) 425 Lexington Avenue New York, NY 10017
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(212) 455-2000 aturner@stblaw.com reena.mittelman@stblaw.com jerry.fang@stblaw.com patricia.yan@stblaw.com Counsel for Amici Curiae
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CERTIFICATE OF COMPLIANCE I hereby certify that, pursuant to E.D. Mich. L.R. 5.1, the foregoing brief is double-spaced and uses a proportionally spaced, 14-point type size.

Dated: May 23, 2017

SIMPSON THACHER & BARTLETT LLP
By /s/ Abram Ellis Abram Ellis (N.Y. Bar #4402962)

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CERTIFICATE OF SERVICE I hereby certify that on May 23, 2017, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system, which will electronically serve all counsel of record.
/s/ Abram Ellis Abram Ellis (N.Y. Bar #4402962)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs, v.
DONALD TRUMP, et al.,

Case No. 17-10310 Honorable Victoria A. Roberts

Defendants. ______________________________/

ORDER GRANTING DEFENDANTS’ MOTION FOR STAY PENDING SUPREME COURT PROCEEDINGS [Doc. 105]

I. INTRODUCTION and BACKGROUND

This case is one of many challenging the constitutionality of President Trump’s

Executive Order No. 13780, titled “Protecting the Nation from Foreign Terrorist Entry

Into the United States,” 82 Fed. Reg. 13209 (Mar. 6, 2017) (the “Executive Order”).

On May 25, 2017, in a case presenting a similar challenge to the Executive

Order, the Fourth Circuit upheld a Maryland District Court’s nationwide preliminary

injunction prohibiting enforcement of § 2(c) of the Executive Order – which temporarily

suspended entry into the United States of nationals from six predominately Muslim

countries. See Int’l Refugee Assistance Project v. Trump, 17-1351, --- F.3d ---, 2017

WL 2273306 (4th Cir. May 25, 2017), as amended (May 31, 2017) (“IRAP”). On June 1,

2017, the government filed a petition for certiorari in IRAP, and the Supreme Court

ordered an expedited response due June 12, 2017.

Defendants move for a stay of these proceedings pending the Supreme Court’s

consideration of the decision in IRAP. [Doc. 105]. Plaintiffs oppose the stay.

2:17-cv-10310-VAR-SDD Doc # 114 Filed 06/09/17 Pg 2 of 8 Pg ID 2304
The Court GRANTS Defendants’ motion for stay [Doc. 105]. II. ANALYSIS
The Court “has broad discretion to stay proceedings as an incident to its power to control its own docket,” Clinton v. Jones, 520 U.S. 681, 706 (1997), and in considering the “economy of time and effort for itself, for counsel and for litigants,” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). This power applies “especially in cases of extraordinary public moment,” where “a plaintiff may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted.” Clinton, 520 U.S. at 707 (citation and internal quotation marks omitted). However, the Court “must tread carefully in granting a stay of proceedings, since a party has a right to a determination of its rights and liabilities without undue delay.” Ohio Envtl. Council v. U.S. Dist. Court, S. Dist. of Ohio, E. Div., 565 F.2d 393, 396 (6th Cir. 1977). “The proponent of a stay bears the burden of establishing its need.” Clinton, 520 U.S. at 708.
In determining whether to stay proceedings pending “another case’s imminent disposition,” the Court considers four factors: “[1] the potential dispositive effect of the other case, [2] judicial economy achieved by awaiting adjudication of the other case, [3] the public welfare, and [4] the relative hardships to the parties created by withholding judgment.” Caspar v. Snyder, 77 F. Supp. 3d 616, 644 (E.D. Mich. 2015). The parties do not address the “public welfare” factor, and neither does the Court. However, the remaining three factors weigh in favor of a stay pending the Supreme Court’s review in IRAP.
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A. Potential Dispositive Effect of Supreme Court Review in IRAP; and Judicial Economy Achieved by Staying the Proceedings
Although Plaintiffs are correct that the Supreme Court’s review in IRAP will likely not be fully dispositive of this case, it is sufficient that those proceedings will likely “settle many” issues and “simplify them all,” Landis, 299 U.S. at 256, such that a stay will “foster efficiency and conservation of resources for both the parties and the court.” Fairview Hosp. v. Leavitt, No. 05-1065, 2007 WL 1521233, at *3 (D.D.C. May 22, 2007) (granting a stay pending the resolution of another case that “would not foreclose the necessity of litigation in [the stayed] case,” but would likely settle some issues and simplify others).
Any decision by the Supreme Court will be particularly relevant to – and likely controlling of – this Court’s disposition of a pending motion to dismiss and pending motion to compel. It would also provide guidance regarding the appropriate scope of discovery, and may help to resolve anticipated disputes related to Plaintiffs’ outstanding discovery requests. Specifically, a decision should provide the legal standard for reviewing the Executive Order under the Establishment Clause, and should answer whether Kleindienst v. Mandel, 408 U.S. 753 (1972), limits review to the four corners of the order. If the Supreme Court holds that Mandel limits review to the face of the Executive Order, most – if not all – of Plaintiffs’ current discovery requests would become irrelevant. On the other hand, if the Supreme Court concludes that review is not limited to the four corners of the Executive Order, then Plaintiffs’ discovery requests concerning pre-inauguration evidence (e.g., statements made by Candidate Trump, documents prepared related to the so-called Muslim ban, etc.) may be highly relevant. A Supreme Court decision in IRAP will guide, if not control, the Court’s disposition of
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both pending and upcoming issues. Accordingly, a stay is warranted to conserve the resources of the parties and the Court.
Plaintiffs argue that Defendants do not establish that there is a “significant possibility that the Supreme Court [will] reverse the judgment below,” see United States v. Mandycz, 321 F. Supp. 2d 862, 864 (E.D. Mich. 2004). However, this does not prevent the Court from entering a stay. In determining whether the Executive Order likely violated the Establishment Clause, the Fourth Circuit applied a standard set forth in Justice Kennedy’s concurrence in Kerry v. Din, --- U.S. ---, 135 S. Ct. 2128, 2140-41 (2015). See IRAP, 2017 WL 2273306, at *16-18. Although the Fourth Circuit’s use of, and analysis under, that standard was well reasoned and sound, the legal standard is not well settled. The Supreme Court is likely to address the standard used by the Fourth Circuit and settle a question of law – i.e., the correct legal standard to use in reviewing the Executive Order under the Establishment Clause. Such guidance by the Supreme Court will simplify these proceedings. See Landis, 299 U.S. at 256.
Defendants sufficiently demonstrate that the dispositive effect of the Supreme Court’s review in IRAP and the judicial economy achieved by awaiting that review weigh in favor of granting a stay.
B. Relative Hardships to the Parties if Proceedings are Stayed Plaintiffs say any review by the Supreme Court would likely take at least six months, and that such a lengthy stay would prejudice them by: (1) severely delaying their case; (2) preventing them from securing the evidence they need to proceed; and (3) increasing the risk that relevant evidence is lost or that Defendants or third parties fail to preserve relevant evidence.
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Defendants say that allowing Plaintiffs to proceed with their “novel and highly burdensome discovery” would prejudice them if the Supreme Court finds that Mandel limits review to the four corners of the Executive Order. They further say that the discovery sought by Plaintiffs raises complicated executive privilege issues, and that because the Supreme Court’s decision will likely provide guidance on the scope and necessity of such discovery, a stay is warranted.
Although a stay will delay these proceedings, the Court finds that potential prejudice to Plaintiffs is less drastic than they set forth. The Supreme Court is expediting its decision on Defendants’ petition for certiorari. Regardless of the length of stay, because the Fourth Circuit upheld the nationwide injunction of the Executive Order, Plaintiffs’ interests are protected. Should circumstances change during the duration of the stay, Plaintiffs may move to lift the stay or for other appropriate relief.
In addition, based on the voluminous filings and issues raised in relation to Plaintiffs’ pending motion to compel – which pertains only to one document request seeking a single document – it is clear that resolution of disputes related to Plaintiffs’ “limited” discovery requests will require significant resources on behalf of the parties and the Court. Requiring the parties and the Court to devote time and resources to resolve these matters during the appeal in IRAP would not be economical, because the Supreme Court’s decision will be significantly relevant to, and possibly control, the Court’s consideration of issues raised in this suit. See Landis, 299 U.S. at 254, 256. This is especially true based on the nature of the case and type of discovery sought.
Because of the “high respect” owed to the Executive, a stay is warranted to protect Defendants from the burden of resource intensive discovery during the
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pendency of the Supreme Court review in IRAP, particularly since a stay will not greatly prejudice Plaintiffs. See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 385 (2004) (“‘[T]he high respect that is owed to the office of the Chief Executive ... is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery,’ and … the Executive’s ‘constitutional responsibilities and status are factors counseling judicial deference and restraint’ in the conduct of litigation against it.” (internal citations omitted)).
Finally, the Court believes that steps can be taken to alleviate Plaintiffs’ concerns regarding preservation of relevant evidence. There is both a common law obligation and a duty under the Federal Rules of Civil Procedure for parties to preserve information in their possession, custody, or control that may be relevant to pending litigation. Here, Defendants’ duty extends to evidence that predates January 20, 2017, and, although the individual Defendants were sued in their official capacity, their duty extends to information created, received or maintained in their personal capacities. The parties must discuss the scope of discovery and preservation efforts during their upcoming Rule 26(f) conference, which they must hold prior to June 23, 2017.
To alleviate Plaintiffs’ concerns about their need to obtain information and preserve evidence from third parties, the Court suggests that they send preservation letters to the third parties at issue. If Plaintiffs are concerned that this does not resolve the issue of third-party evidentiary preservation, they may move for a limited modification of the stay order, as explained in the Conclusion, below.
The relative hardships to the parties created by withholding judgment weighs in favor of staying these proceedings pending Supreme Court review in IRAP.
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III. CONCLUSION
Defendants’ motion for a stay pending Supreme Court proceedings [Doc. 105] is
GRANTED, and this case is STAYED until two weeks after the “final action” (i.e., denial
of certiorari or a decision/opinion on the merits) by the Supreme Court in IRAP, with the
following limitations and conditions:
1. The parties must conduct a Rule 26(f) conference by June 23, 2017;
2. Defendants must preserve information in their possession, custody, or control – in both their official and personal capacities – that may be relevant to pending litigation, including information that predates January 20, 2017. The parties must discuss the scope of discovery and preservation efforts during their Rule 26(f) conference.
3. Plaintiffs may send preservation letters to third parties to notify them of the litigation and to request that they preserve any potentially relevant evidence. If this does not alleviate Plaintiffs’ concerns regarding thirdparty evidentiary preservation, Plaintiffs may move for a limited modification of this stay to allow them to issue subpoenas to third parties. If any such motion is granted, the third party would not be required to produce discovery, or respond to the subpoena, until the stay is fully lifted;
4. Any party may move to lift the stay, or for other appropriate relief, if circumstances change prior to the “final action” by the Supreme Court in IRAP;
5. The parties must file a joint statement proposing the schedule for any further proceedings within seven days after the “final action” by the Supreme Court in IRAP;
6. The joint statement should take into consideration any impact the Supreme Court’s opinion in IRAP has on Plaintiffs’ outstanding discovery requests and the pending motions to dismiss and compel. Specifically, if the Supreme Court issues an opinion, arguments made in support of and in opposition to the motions to dismiss and/or compel may no longer be relevant; if that is the case, the Court would be inclined to strike the pending motions and have the parties re-file them, if necessary, using the appropriate standard(s) set forth by the Supreme Court. The parties should contemplate this when filing the joint statement;
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7. The joint statement should include the dates that Defendants’ responses to Plaintiffs’ discovery requests are due, if those discovery requests are still relevant; and

8. The June 13 hearing on Defendants’ motion to dismiss is cancelled.

IT IS ORDERED. Dated: June 9, 2017

s/Victoria A. Roberts Victoria A. Roberts United States District Judge

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 2:17-cv-10310-VAR-SDD Doc # 119 Filed 11/16/17 Pg 1 of 3 Pg ID 2372

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs, v.
DONALD TRUMP, et al.,

Case No. 17-10310 Honorable Victoria A. Roberts

Defendants. ______________________________/

ORDER: (1) GRANTING JOINT MOTION FOR CLARIFICATION [Doc. 118]; (2) ALLOWING PLAINTIFFS TO FILE A THIRD AMENDED COMPLAINT; and
(3) DEEMING MOOT DEFENDANTS’ MOTION TO DISMISS [Doc. 76] AND PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS [Doc. 104]

Plaintiffs’ operative complaint challenges President Trump’s Executive

Order No. 13780, entitled “Protecting the Nation from Foreign Terrorist Entry Into

the United States,” 82 Fed. Reg. 13209 (Mar. 6, 2017) (the “Executive Order”).

In June, the Court entered an order staying proceedings pending the

Supreme Court’s review of the Executive Order.

However, because the challenged provisions of the Executive Order expired

by their own terms, the Supreme Court vacated the judgments in the lower courts

and remanded “with instructions to dismiss as moot the challenge[s] to [the]

Executive Order.” See Trump v. Hawaii, --- U.S. ---, 2017 WL 4782860, at *1

(Oct. 24, 2017); Trump v. Int’l Refugee Assistance Project, --- U.S. ---, 2017 WL

4518553, at *1 (Oct. 10, 2017).

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On September 24, 2017, before the provisions of the Executive Order expired, President Trump issued a Proclamation entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats,” 82 Fed. Reg. 45,161 (Sept. 24, 2017) (the “Proclamation”). Among other things, the Proclamation indefinitely suspends immigration from Chad, Iran, Libya, North Korea, Syria, Yemen and Somalia, and suspends entry by certain classes of non-immigrants – e.g., students, tourists, and business travelers – from those countries. See id., §§ 2(a)-(e), (g)-(h).
On October 24, the Court entered an order directing the parties to file a joint statement addressing the status of the case “once proceedings are concluded in the Supreme Court concerning the . . . Proclamation.”
The parties filed a joint motion seeking clarification of that order, which is now before the Court. [Doc. 118]. That motion is GRANTED. The Court further provides that:
(1) The intention of the Court’s October 24 order was to wait for guidance from the Supreme Court if it addressed the merits of the Proclamation in the stillpending Trump v. Hawaii case; however, the Supreme Court remanded the case that same day without addressing the merits. The parties should disregard the above-quoted portion of the October 24 order.
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(2) Because the challenged provisions of the Executive Order expired,

Plaintiffs’ second amended complaint does not present a case or controversy.

However, issuance of the Proclamation potentially provides Plaintiffs with new

causes of action. Plaintiffs may, as requested, file a third amended complaint; their

amended complaint is due December 15, 2017. Defendants must answer or

otherwise respond to Plaintiffs’ amended complaint by January 15, 2018.

(3) Defendants’ pending motion to dismiss [Doc. 76] is MOOT.

(4) Because no pending case or controversy exists, the Court will not decide

Plaintiffs’ motion to compel production of documents. That motion [Doc. 104] is

MOOT. Plaintiffs must ask for discovery in the normal course, once Defendants

answer or otherwise respond to the amended complaint.

IT IS ORDERED. Dated: November 16, 2017

s/Victoria A. Roberts Victoria A. Roberts United States District Judge

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 Case 2:17-cv-10310-VAR-SDD ECF No. 124 filed 09/13/18 PageID.2390 Page 1 of 127

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ARAB AMERICAN CIVIL RIGHTS LEAGUE (“ACRL”), on behalf of itself, its members, and its clients, AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN (“ACLU”), on behalf of itself and its members, AMERICAN ARAB CHAMBER OF COMMERCE, on behalf of itself and its members, ARAB AMERICAN AND CHALDEAN COUNCIL (“ACC”), on behalf of itself and its clients, ARAB AMERICAN STUDIES ASSOCIATION (“AASA”), on behalf of itself and its members, HEND ALSHAWISH, SALIM ALSHAWISH, FAHMI JAHAF, and KALTUM SALEH, on behalf of themselves and all others similarly situated,

Plaintiffs, v.

Case No. 17-cv-10310 Hon. Victoria A. Roberts Mag. J. Stephanie D. Davis

DONALD TRUMP, President of the United States, U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”), U.S. CUSTOMS AND BORDER PROTECTION (“CBP”), U.S. CITIZENSHIP AND IMMIGRATION SERVICES (“USCIS”), U.S. DEPARTMENT OF STATE, U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, KIRSTJEN M. NIELSEN, Secretary of Homeland Security, KEVIN K. McALEENAN, Commissioner of CBP, L. FRANCIS CISSNA, Director of USCIS, MICHAEL R. POMPEO, Secretary of State, JEFF SESSIONS, Attorney General, DAN COATS, Director of National Intelligence, and the UNITED STATES OF AMERICA,
Defendants. __________________________________________________________________/

THIRD AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION 1. President Donald Trump has been very clear about his desire to prevent Muslims from entering the United States. He specifically promised to do so as a candidate, calling on December 7, 2015 “for a total and complete shutdown of Muslims entering the United States.” He believed: “We have no choice.” Throughout his campaign he reiterated his desire to prevent Muslims from coming to the United States and his belief that Muslims should not have equal rights with others in American society. 2. On January 27, 2017, President Trump sought to fulfill his campaign promise by signing Executive Order 13769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “First Executive Order” or “EO-1”), 82 Fed. Reg. 8977 (Raofield Decl. ¶ 3, Ex. A), which banned entry into the United States of both refugees and the nationals of seven predominantly Muslim countries. 3. The First Executive Order was developed by advisors to Mr. Trump whom he tasked with finding a way to implement a Muslim ban indirectly, after his original campaign proposal to ban Muslims was criticized as blatantly unconstitutional religious discrimination. In addition, as President Trump admitted on national television, through the January 27 Order he intended to favor Christian refugees over Muslim refugees. Rarely in American history has governmental
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intent—at the highest levels—to discriminate against a particular faith and its adherents been so plain.
4. The First Executive Order resulted in chaos and widespread civil rights abuses at airports, demonstrations nationwide, and emergency litigation across the country.
5. Implementation of EO-1 was halted by the courts, including this one. 6. Thereafter, President Trump promised to issue a new executive order. He claimed that injunctions by the courts imperiled national security. The President, however, delayed issuance of the new order. White House officials admitted that the purpose of the delay was to enable the President to benefit from favorable news coverage after his first address to Congress. 7. White House officials explained that the revised order would contain only minor, technical changes from the First Executive Order, and would thus produce the same basic policy outcome. That basic goal and outcome was, and remains, the exclusion of Muslims from the United States. 8. On March 6, 2017, President Trump rescinded and replaced the First Executive Order with a revised document, Executive Order 13780, 82 Fed. Reg. 13209, effective March 16, 2017 (“Second Executive Order” or “EO-2”) (Raofield Decl. ¶ 4, Ex. B).
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9. The major provisions of the Second Executive Order were nearly identical to those of the First Executive Order. EO-2 banned individuals from six of the seven predominantly Muslim countries identified in EO-1 – Yemen, Libya, Somalia, Sudan, Iran and Syria – from entering the United States for at least 90 days. Like EO-1, EO-2 suspended the entire United States Refugee Admissions Program for at least 120 days and reduced the maximum number of refugees allowed into the United States for the current fiscal year from 110,000 to 50,000. EO-2 also contained language that associates Muslims with violence, terrorism, bigotry and hatred. That language inflicted stigmatic and dignitary harms. As a result, EO-2 had the same discriminatory and stigmatizing impact on Muslims as EO-1, which was itself a product of the President’s clearly expressed intent to prevent Muslims from entering the United States.
10. The courts, recognizing that EO-2 was motivated by the same impermissible religious animus as EO-1 and suffered from the same constitutional and statutory defects, blocked implementation of the Second Executive Order. The Supreme Court—although it did not hear the merits of these appeals before the cases became moot—subsequently narrowed the preliminary injunctions to enjoin enforcement of the relevant provisions with respect to foreign nationals who lacked any bona fide relationship with a person or entity in the United States. Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017).
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11. On September 24, 2017, President Trump yet again replaced an unconstitutional order with a new one, this time entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public Safety Threats,” Proclamation 9645, 82 Fed. Reg. 45161 (“EO-3”). (Together, we refer to the January 27 Order, the March 6 Order, and the September 24 Proclamation as the “Executive Orders”.)1
12. EO-3 currently bans certain nationals of the predominantly Muslim countries of Iran, Libya, Somalia, Syria and Yemen (the “Designated Countries”). Unlike EO-1 and EO-2 (collectively, the “Prior Orders”), which imposed 90-day bans, EO-3 contains no set time limit. While EO-3 provides that this indefinite ban could be lifted in the future if circumstances change on a country-by-country basis, the absence of any time limit means that EO-3 essentially extends the earlier 90day bans to last indefinitely. It also bans a small number of Venezuelan government officials and the nearly nonexistent entry of nationals of North Korea.
13. EO-3 ostensibly permits individuals from the Designated Countries who pose no national security threat to obtain a waiver to enter the United States.
1 On October 24, 2017, President Trump signed Executive Order 13815 (“EO-4”), 82 Fed. Reg. 50,055, entitled “Resuming the United States Refugee Admissions Program With Enhanced Vetting Capabilities.” EO-4 suspends entry of refugees from eleven specified countries—all but two of which are majority Muslim—and indefinitely suspends the “follow-to-join” program, which allows refugees admitted to the U.S. to apply for admission of their spouses and children.
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However, the waiver provision of EO-3 has proven to be a sham. The majority of qualified applicants are denied waivers, allowing EO-3 to function as intended: to drastically curb Muslim immigration into the United States.
14. All three Executive Orders have the same purpose and effect. All three were intended and designed to target and discriminate against Muslims, and all did and do just that in operation.
15. Like the First and Second Executive Orders, EO-3 violates cherished constitutional protections: the guarantee that the government will not establish, favor, discriminate against, or condemn any religion; the guarantee of freedom of speech and association; and the guarantee of equal protection of the laws.
16. The United States was born in part of an effort to escape religious persecution, and the Religion Clauses of the First Amendment reflect the harrowing history of our Founders. More than two centuries later, our nation is one of the most religiously diverse in the world and has become a sanctuary for immigrants and visitors of all faiths and no faith, including refugees fleeing persecution in their homelands.
17. EO-3 flies in the face of our historical commitment to welcome and protect people of all faiths, and no faith. It violates the “clearest command of the Establishment Clause”—“one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).
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18. The United States was likewise founded on the principle that all people—regardless of their faith or where they are born—are created equal. The equal protection guarantee of the Fifth Amendment reflects this country’s rejection of official preferences on the basis of race, color, or religion.
19. Freedom of speech and assembly are similarly fundamental to our democracy. The First Amendment guarantees our right to hear from and associate with speakers of different faiths. EO-3—which was motivated by animus toward Muslims and expressly discriminates on the basis of national origin—runs afoul of these core constitutional values as well.
20. The Executive Orders embodied the unconstitutional targeting of Muslims. The purported justification—national security concerns—was intended to legitimize the travel ban but serves no legitimate rational purpose. EO-3 cannot “reasonably be understood to result from a justification independent of unconstitutional grounds.” Trump v. Hawaii, No. 17-965, 585 U.S. __, slip op. at 32 (June 26, 2018).
21. Plaintiffs challenge EO-3 as violating the Establishment Clause and the right to freedom of speech and association under the First Amendment, and the equal protection guarantee of the Due Process Clause of the Fifth Amendment.
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22. Plaintiffs respectfully request that this Court issue appropriate declaratory relief and permanently enjoin EO-3 with respect to foreign nationals from the Designated Countries.
PARTIES The Plaintiffs 23. Plaintiff Arab American Civil Rights League (“ACRL”) is a nonprofit organization based in Dearborn, Michigan, that protects the civil rights of Arab Americans through education and advocacy. ACRL is a membership organization, the majority of whose members are practicing Muslims and are from Middle Eastern backgrounds, including from the majority-Muslim Designated Countries. Likewise, the majority of ACRL’s clients are practicing Muslims and are from Middle Eastern backgrounds, including from the majority-Muslim Designated Countries. ACRL asserts claims on behalf of itself, its members, and clients. The rights of its clients that ACRL seeks to vindicate here are inextricably bound up with its organizational mission and purpose, and its clients face numerous hurdles to bringing this suit in their own names. 24. Plaintiff American Civil Liberties Union of Michigan (“ACLU”) is a nonprofit membership organization with more than 41,000 members, headquartered in Detroit, Michigan, and is a state affiliate of the national American Civil Liberties Union, which is itself a membership organization of more than 1.6
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million members. The ACLU has long been dedicated to protecting the constitutional rights of its members and of all people in Michigan, including their rights to religious liberty, freedom of speech and association, and equal protection of the laws. The ACLU asserts claims on behalf of itself and its members.
25. The American Arab Chamber of Commerce (hereinafter “Chamber”) is a non-profit, membership organization dedicated to promoting and empowering its member businesses. Located in Dearborn, Michigan, the Chamber is currently the largest Arab American business organization in the country. The Chamber seeks to promote its members by offering networking opportunities as well as by fostering trade between Michigan-based companies and businesses located in the Middle East. The Chamber’s membership includes businesses founded or run by immigrants from the Designated Countries and by refugees. Many of these business leaders are Muslim. The Chamber asserts claims on behalf of itself and its members.
26. Arab American and Chaldean Council (“ACC”) is a human services non-profit, headquartered in Detroit, Michigan, which has existed since 1979 and whose mission is to support the overall well-being of the Middle Eastern community in the Metro Detroit region by providing services in public and behavioral health, along with a focus on education, English as a Second Language (ESL) classes, employment, training and placement, youth life skills classes in
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schools, youth recreation, cultural activities along with Woman, Infant and Children (WIC) and the Michigan Department of Health and Human Services (DHHS) support. ACC asserts claims on behalf of itself and its clients. The rights of ACC’s clients that it seeks to vindicate here are inextricably bound up with its organizational mission and purpose, and its clients face numerous hurdles to bringing this suit in their own name.
27. The Arab American Studies Association (“AASA”) is a non-profit, nonpolitical organization of scholars and other persons interested in the study of Arab American history, ethnicity, culture, literature, art, music, politics, religion, and other aspects of the Arab American experience. The AASA is a membership organization, headquartered in Dearborn, Michigan. The AASA asserts claims on behalf of itself and its members.
28. As set forth in greater detail below, implementation of the Executive Orders has caused substantial harm to, and will continue to harm, ACRL, its members, and its clients; the ACLU and its members; the American Arab Chamber of Commerce and its members; ACC and its clients; and AASA and its members.
29. Plaintiff Hend Alshawish is a lawful permanent resident of the United States, a citizen of Yemen, and a Muslim. She is married to plaintiff Salim Alshawish. She resides in New York, and is a member of ACRL and of the American Civil Liberties Union.
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30. Plaintiff Salim Alshawish is a citizen of the United States and is Muslim. He is married to plaintiff Hend Alshawish, and the two reside in New York. Plaintiff Salim Alshawish is a member of ACRL and of the American Civil Liberties Union.
31. Plaintiffs Hend and Salim Alshawish have two teenaged children who are citizens of Yemen and are Muslim. The children have been unable to join their parents in the United States due to the Executive Orders.
32. Plaintiff Fahmi Jahaf is a citizen of the United States and is Muslim. He resides in Wayne County, Michigan and is a member of ACRL and of the ACLU. Plaintiff is married to Basema Al Reyashi, a citizen of Yemen. Ms. Al Reyashi is also Muslim, and currently resides in Djibouti. Due to the Executive Orders, Plaintiff Jahaf’s wife cannot join him in the United States.
33. Plaintiff Kaltum Saleh is a citizen of the United States and is Muslim. She resides in Wayne County, Michigan and is a member of the ACLU. Plaintiff Saleh’s elderly mother, a Somali national, currently resides in Uganda. Due to the Executive Orders, Plaintiff Saleh’s mother cannot join her in the United States.
34. As set forth in greater detail below, implementation of the Executive Orders has caused and will continue to cause harm to Plaintiffs Hend Alshawish, Salim Alshawish, Fahmi Jahaf, and Kaltum Saleh (collectively, the “Individual Plaintiffs”).
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The Defendants 35. Defendant Donald Trump is the President of the United States. He issued the Executive Orders challenged in this suit. He is sued in his official capacity. 36. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet-level department of the United States federal government. Its components include U.S. Citizenship and Immigration Services and U.S. Customs and Border Protection. The Executive Orders assign DHS a variety of responsibilities regarding implementation and enforcement. 37. Defendant U.S. Customs and Border Protection (“CBP”) is an agency within DHS. CBP’s responsibilities include inspecting and admitting immigrants and nonimmigrants arriving at international ports of entry, including airports and land borders. The Executive Orders assign CBP a variety of responsibilities regarding implementation and enforcement. 38. U.S. Citizenship and Immigration Services (“USCIS”) is an agency within DHS. USCIS’s responsibilities include adjudicating requests for immigration benefits for individuals located within the United States, and it therefore has a variety of responsibilities regarding implementation and enforcement of the Executive Orders.
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39. Defendant U.S. Department of State (“DOS”) is a cabinet-level department of the United States federal government that is responsible for the issuance of immigrant and nonimmigrant visas abroad. The Executive Orders assign DOS a variety of responsibilities regarding implementation and enforcement.
40. Defendant Department of Justice (“DOJ”) is a cabinet-level department of the United States federal government. The Executive Orders assign certain responsibilities regarding implementation and enforcement to the Attorney General, who heads the Department of Justice.
41. Defendant Office of the Director of National Intelligence (“ODNI”) is an independent agency of the United States federal government. ODNI has specific responsibilities and obligation with respect to implementation of the Executive Orders.
42. Defendant Kirstjen M. Nielsen is the Secretary of Homeland Security. Secretary Nielsen has responsibility for overseeing enforcement and implementation of the Executive Orders by all DHS staff, and staff of DHS’s component agencies, CBP and USCIS. She is sued in her official capacity.2
2 Where applicable, the official defendants named in prior complaints have been substituted with their successors pursuant to Fed. R. Civ. P. 25(d).
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43. Defendant Kevin K. McAleenan is the Commissioner of CBP and has responsibility for overseeing enforcement and implementation of the Executive Orders by all CBP staff. He is sued in his official capacity.
44. Defendant L. Francis Cissna is the Director of USCIS and has responsibility for overseeing enforcement and implementation of the Executive Orders by all USCIS staff. He is sued in his official capacity.
45. Defendant Michael R. Pompeo is the Secretary of State and has responsibility for overseeing enforcement and implementation of the Executive Orders by all DOS staff. He is sued in his official capacity.
46. Defendant Jeff Sessions is the Attorney General of the United States. The Executive Orders assign certain responsibilities regarding implementation and enforcement to the Attorney General. He is sued in his official capacity.
47. Defendant Dan Coats is the Director of National Intelligence, and has responsibility for overseeing enforcement and implementation of the Executive Orders by all ODNI staff. He is sued in his official capacity.
48. Defendant United States of America includes all government agencies and departments responsible for enforcement and implementation of the Executive Orders.
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JURISDICTION AND VENUE 49. This Court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343 and 1361. This court has further remedial authority pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. 50. Venue is proper under 28 U.S.C. § 1391(e). Defendants are officers or employees of the United States acting in their official capacities, agencies of the United States, and the United States. Plaintiffs ACRL, ACLU, American Arab Chamber of Commerce, ACC, AASA, Jahaf, and Saleh are residents of this District, and no real property is involved in this action. Further, a substantial part of the events or omissions giving rise to this action occurred in this District.
FACTUAL ALLEGATIONS President Trump’s Expressed Intent to Target Muslims and to Favor Christians Seeking to Enter the Country 51. President Trump has repeatedly made clear his intent to enact policies that exclude Muslims from entering the United States and favor Christians seeking to enter the United States. 52. On December 7, 2015, then-Presidential Candidate Trump issued a statement on his campaign website. Entitled “DONALD J. TRUMP STATEMENT ON PREVENTING MUSLIM IMMIGRATION,” the statement declared that “Donald J. Trump is calling for a total and complete shutdown of Muslims entering
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the United States until our country’s representatives can figure out what is going on.”
53. The statement invokes stereotypes of Muslims, falsely suggesting that all Muslims believe in “murder against non-believers who won’t convert” and “unthinkable acts” against women.
54. The statement suggests that a Muslim ban is necessary to prevent “horrendous attacks” on U.S. soil because “there is great hatred towards Americans by large segments of the Muslim population.”
55. Defending his proposed Muslim ban the next day, Candidate Trump told Good Morning America, “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.”
56. At the time President Trump took the oath of office, the statement remained on his campaign website. And while this fact was highlighted in numerous lawsuits challenging the Executive Orders, President Trump elected to leave the statement on his campaign website until May 2017.
57. When asked the same day on MSNBC how his Muslim ban would be applied by “a customs agent,” Candidate Trump said, “That would be probably— they would say, are you Muslim?” A reporter followed up by asking, “And if they
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said yes, they would not be allowed in the country[?]” Candidate Trump responded, “That’s correct.”
58. This overt religious animus was consistent with statements and proposals Candidate Trump had previously made. For example, on September 30, 2015, while speaking at a campaign event in New Hampshire, Candidate Trump said that the 10,000 Syrian refugees admitted by the Obama administration in 2016 “could be ISIS” and promised “if I win, they’re going back!”
59. In addition, in a series of interviews in the weeks prior to the release of his statement, Candidate Trump had indicated that he would require Muslims in the United States to register with the government, and he had insisted that the country had “absolutely no choice” but to shut down mosques.
60. President Trump’s hostility toward Muslims is longstanding. In April 2011, Mr. Trump stated that he had been asked whether there was “a Muslim problem.” He said he had replied:
[A]bsolutely yes. . . . I mean I could have said, “Oh absolutely not . . . there’s no Muslim problem, everything is wonderful, just forget about the World Trade Center. But you have to speak the truth. . . . The Koran is very interesting. . . . [T]here’s something there that teaches some very negative vibe. . . . [T]here’s tremendous hatred out there that I’ve never seen anything like it. 61. Throughout the presidential campaign, Candidate Trump repeatedly reiterated his support for targeting Muslims seeking to enter the United States.
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62. At a rally on September 18, 2015, Candidate Trump did not disagree with an audience member who stated, “We have a problem in this country. It’s called Muslims.” In response to the same audience member’s question, “When can we get rid of them [the Muslims]?” Candidate Trump replied, “We’re going to be looking at that and many other things.”
63. On November 16, 2015, Candidate Trump stated that he would “have to strongly consider” shutting down mosques, “because some of the ideas and some of the hatred—the absolute hatred—is coming from these areas.” Two days later, Candidate Trump concluded that there was “absolutely no choice” about shutting down mosques. Candidate Trump advocated shutting down mosques and the surveillance of mosques without suspicion on numerous occasions.
64. Discussing the 9/11 terrorist attacks, on November 21, 2015, Candidate Trump asserted that “thousands and thousands of people [referring to Muslims] were cheering as that building was coming down. Thousands of people were cheering.” This claim has since been thoroughly debunked.
65. On December 10, 2015, Candidate Trump tweeted two statements referring to a “Muslim problem,” as well as a Washington Post article entitled, “Why Franklin Graham says Donald Trump is right about stopping Muslim immigration.”
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66. Candidate Trump’s statements suggest he sees no distinction between radical Islamic terrorism and Islam as a religion. In a televised interview on February 4, 2016, Candidate Trump was asked, “Is it really a Muslim problem, or is it a radical Islamist problem?” He replied, “Maybe it’s a Muslim problem, maybe it’s not.”
67. On March 9, 2016, Candidate Trump stated, “I think Islam hates us. There’s . . . a tremendous hatred there . . . . There’s an unbelievable hatred of us . . . . [W]e can’t allow people coming into this country who have this hatred of the United States . . . [and] of people that are not Muslim . . . .” He again conflated Muslims and terrorists, rejecting that the two are distinct and stating that “[i]t’s very hard to define.”
68. The next day, during a debate, Candidate Trump said he would “stick with exactly” what he had said the night before. When asked if he was referring to all 1.6 billion Muslims worldwide, he explained, “I mean a lot of them.” Candidate Trump stated later in the same debate, “There is tremendous hate. There is tremendous hate. Where large portions of a group of people, Islam, large portions want to use very, very harsh means.”
69. On March 22, 2016, Candidate Trump stated that “we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country,” adding, “You need surveillance. You have to deal with the mosques,
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whether we like it or not . . . . [T]hese attacks aren’t . . . done by Swedish people, that I can tell you.”
70. The same day, Candidate Trump attacked Democratic candidate Hillary Clinton on Twitter, saying she wanted to “let the Muslims flow in.”
71. On June 13, 2016, one day after the Pulse nightclub shooting in Orlando, Candidate Trump delivered an address on “Terrorism, Immigration, and National Security,” in which he declared: “I called for a ban after San Bernardino, and was met with great scorn and anger but now, many are saying I was right…. 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.” In the address he blamed “Muslim communities” of refusing to “turn in the people who they know are bad―and they do know where they are.”
Development of the Pretext for Targeting Muslims Prior to the Election 72. During the summer of 2016, in response to widespread outrage at his
proposed Muslim ban, Candidate Trump worked with others to develop a pretext to disguise his religious animus and justify his determination to take action targeting Muslims.
73. In May of 2016, Candidate Trump asked former New York City Mayor Rudolph Giuliani to put together a “commission” to advise Candidate Trump on his proposed Muslim ban.
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74. In a televised interview, Mr. Giuliani explained: “So when he 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.’”
75. On June 5, 2016, an interviewer asked Candidate Trump, “How are you going to get past [the] establishment to keep those promises,” one of which was the “temporary ban on Muslim immigration”? Candidate Trump presciently responded: “You are going to have to watch and are going to have to see. I have done a lot of things that nobody thought I could do.”
76. In early July 2016, Mr. Giuliani described a memorandum his commission had prepared for Candidate Trump, and he suggested that this memorandum had caused the candidate’s proposal to shift from a “general ban” to “very specific, targeted criteria” focusing on specific countries.
77. In a subsequent interview, Mr. Giuliani again attributed the purported evolution of the Muslim ban to the work of his commission, which included Congressman Michael McCaul and General Michael Flynn, among others: “We wrote a paper for him. And he amended it to the ban would be restricted to particular countries, and it would not be a ban. It would involve extreme vetting…. All the rest from countries [other than Syria] that contain dangerous populations of radical Islamic extremists, he will subject them to extreme vetting, but not a ban.”
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78. In a July 24, 2016 interview on Meet the Press, Candidate Trump was asked if a plan similar to the Executive Orders at issue in this litigation was a “rollback” from “[t]he Muslim Ban.” Candidate Trump responded: “I don’t think so. I actually don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territory.” Candidate Trump continued: “People were so upset when I used the word ‘Muslim.’ ‘Oh, you can’t use the word ‘Muslim.’’ Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”
79. In an address on August 15, 2016, Candidate Trump characterized a long list of terror attacks as all being linked by the “common thread” that they “involved immigrants or the children of immigrants.” In this speech, invoking offensive Muslim stereotypes, he decried “the oppression of women and gays in many Muslim nations” and the targeting of “Christians driven from their homes,” and he called for the establishment of an “ideological screening test” to ferret out those who do not share our values. He went on to proclaim that American “values should be taught by parents and teachers, and impressed upon all who join our society. Assimilation is not an act of hostility, but an expression of compassion.”
80. On August 17, 2016, the Trump campaign announced that Candidate Trump had convened a “Roundtable on Defeating Radical Islamic Terrorism,” to discuss “improving immigration screening and standards” to keep radical Muslims
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out of the country. This group included, among others, General Flynn, thenSenator Jeff Sessions, former Mayor Giuliani, Congressman Peter King, former Attorney General Michael Mukasey, and Congressman McCaul.
81. In a debate on October 9, 2016, one month before the election, Candidate Trump claimed that: “The Muslim ban is something that in some form has morphed into extreme vetting from certain areas of the world.”
Continued Development of the Executive Order During the Transition Period
82. Ordinarily, the President consults relevant cabinet-level officials and agencies before issuing an Executive Order. However, this usual process was not followed here.
83. Shortly after his election victory, President-elect Trump selected General Flynn―a key member of the Giuliani commission―to serve as his national security adviser.
84. Just a few months earlier, General Flynn had described “Islamism” in a televised speech as “a vicious cancer inside the body of 1.7 billion people on this planet” and stated that “it has to be excised.”
85. During the transition period following the election and before the inauguration, development of EO-1 was overseen by certain Trump advisors, including Stephen Bannon and Stephen Miller.
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86. Mr. Bannon has previously made anti-Muslim comments. He has stated that “most people in the Middle East, at least 50%, believe in being shariacompliant,” and that “[i]f you’re sharia-compliant or want to impose sharia law, the United States is the wrong place for you.”
87. In 2003, Mr. Miller wrote: “We have all heard about how peaceful and benign the Islamic religion is, but no matter how many times you say that, it cannot change the fact that millions of radical Muslims would celebrate your death for the simple reason that you are Christian, Jewish or American.”
88. During the transition period, members of the Trump transition team consulted with staff working for the House Judiciary Committee. It has been reported that these staffers carried out this work unbeknownst to members of the Committee, and were required to sign nondisclosure agreements. Congressman Bob Goodlatte, the Chairman of the House Judiciary Committee, has verified that the staffers’ involvement began after the election and ended before the inauguration.
89. In late December 2016, as development of EO-1 was underway, President-elect Trump was asked whether he had changed his “plans to create a Muslim registry or ban Muslim immigration.” He responded: “Hey, you’ve known my plans all along and it’s, they’ve proven to be right. 100 percent correct.”
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90. The numerous statements made by Candidate and President-elect Trump and his supporters calling for a Muslim ban and expressing negative stereotypes about Muslims demonstrate that EO-1 (and its successors) resulted from anti-Muslim animus, rather than legitimate national security concerns.
Issuance of the First Executive Order Following the Inauguration
91. On January 20, 2017, Donald J. Trump became the 45th President of the United States of America.
92. President Trump selected the controversial Rev. Franklin Graham to speak at his inauguration. Rev. Graham had spent the past fifteen years characterizing Islam as “a religion of war” and insisting Islam “has not been hijacked by radicals. This is the faith, this is the religion.”
93. As of January 20, 2017, news reports indicated that an executive order would be signed shortly and would restrict entry to the country by individuals from seven majority Muslim countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.
94. On January 27, 2017—just one week after his inauguration— President Trump sought to fulfill his campaign promise by signing an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” After reading this title aloud, President Trump clarified, “We all know what that means.”
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95. The First Executive Order was intentionally designed to target Muslims, discriminate against Muslims, and disparage Islam, and it did just that in operation.
96. Contemporaneous statements made by President Trump and his advisors around the signing of the First Executive Order confirm President Trump’s intent to discriminate against Muslims.
97. For instance, during the signing ceremony, President Trump made clear that the order was targeted at Muslims, pledging that it would “keep radical Islamic terrorists out of the United States of America.”
98. In an interview with the Christian Broadcasting Network released the same day that he signed the First Executive Order, President Trump stated that the Order was designed to give Christians priority when applying for refugee status. “If you were a Muslim you could come in [to the United States], but if you were a Christian, it was almost impossible,” he said. “[T]hey 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.”
99. Consistent with this expressed animus towards Muslims and preference for Christians, EO-1 clearly disfavored Muslims while giving special treatment to non-Muslims.
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100. Section 3 of the Order, for example, banned any entry for 90 days for individuals from seven countries. All seven of these countries are predominantly Muslim: Syria, Sudan, Iraq, Iran, Libya, Somalia, and Yemen.
101. EO-1 did not single out any countries that are not majority-Muslim for disfavored treatment.
102. EO-1 provided a mechanism for the government to extend and/or expand the ban at the end of the 90-day period. Section 3 of the Order directed the Secretary of Homeland Security to “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,” and to “submit to the President a report on the results of the review . . . within 30 days of the date of this order.” At that point, the “Secretary of State shall request all foreign governments that do not supply such information to start providing such information,” and 60 days after that – precisely at the end of the initial 90-day ban period – EO-1 provided for the President to issue a proclamation indefinitely banning travelers from a list of countries deemed to be non-compliant “until compliance occurs.”
103. Section 5 of the First Executive Order banned the admission of Syrian refugees indefinitely and prohibited other refugee admissions for 120 days.
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104. EO-1 discriminated between persons of majority and minority faiths in their country of origin. Section 5(b) of the Order required the government 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” once the 120-day ban on refugee admissions is complete.
105. During those 120 days, moreover, Section 5(e) of the First Executive Order allowed the admission of certain refugees on a discretionary case-by-case basis, “only so long as [the Secretaries of State and Homeland Security] 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.”
106. The President has conceded that these provisions were intended to allow Christian refugees to enter the United States, even while Muslim refugees from the same countries were prohibited from doing so. And indeed, Muslims were severely disadvantaged by the minority-faith preferences set forth in Sections 5(b) and 5(e).
107. There is no statutory, regulatory, or constitutional basis for favoring refugees from minority faiths over refugees from majority faiths. There is no basis in the Refugee Act of 1980, as amended – which governs the admission of refugees
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to the United States and their resettlement herein – to prioritize refugees fleeing persecution on the basis of religion, as opposed to other congressionallyrecognized bases. See 8 U.S.C. § 1101(a)(42) (defining “refugee”).
108. The indefinite ban on Syrian refugees contained in the January 27 Order also made plain, and put into practice, President Trump’s intent to limit the entry of Muslims into the United States. In fiscal year 2016, Syrian refugees made up 32% of all Muslim refugees who entered the United States, but only 0.2% of the Christian refugees who entered the United States.
109. Section 5(d) reduced, by more than half, the annual refugee admissions allotment that was set prior to fiscal year 2017 by President Obama (from 110,000 to 50,000).
110. As of the end of February 2017, approximately 37,000 refugees had already been resettled in the United States. The number of refugees already somewhere in the U.S. Refugee Admissions Program pipeline at that time – well over 50,000 – would put the U.S. refugee resettlement total above Section 5(d)’s reduced admissions cap of 50,000.
111. As a result, upon information and belief, Defendants undertook various actions to bring to a halt the U.S. refugee resettlement process as a result of Section 5(d)’s reduction in fiscal year 2017’s figure.
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112. For example, upon information and belief, shortly after the First Executive Order was signed, Defendant USCIS, a component of Defendant Department of Homeland Security, cancelled nearly all refugee processing interviews abroad.
113. Additionally, upon information and belief, Defendant Department of State suspended security checks for refugees, a process that often takes between 18-24 months.
114. Further, on information and belief, since EO-1 was signed, CBP has questioned foreign nationals entering the United States about their religious beliefs to determine whether or not they are Muslim and their degree of religiosity, and has subjected Muslim travelers to disproportionate and discriminatory scrutiny and interrogation.
The Chaotic and Irregular Implementation of the First Executive Order 115. The implementation of the First Executive Order was extremely
unusual and chaotic. Upon information and belief, the White House bypassed regular channels for input and cooperation from other components of the Executive Branch, including the Secretaries of Homeland Security, Defense, and State. Moreover, upon information and belief, CBP was not given clear operational guidance during critical times in the implementation of EO-1.
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116. EO-1 was signed without final review or legal analysis from DHS, which—along with the DOS—was principally charged with implementing the Order.
117. Then-Secretary of Homeland Security Kelly was reportedly in the midst of a conference call to discuss the Order when someone on the call learned from watching television that the Order they were discussing had been signed.
118. Similarly, Secretary of Defense Mattis, who had publicly criticized President Trump’s proposal to ban Muslims from the United States, reportedly did not see a final version of the order until the day it was signed, and was not consulted during its preparation.
119. During the days leading up to and following the signing of the First Executive Order, its scope and provisions were repeatedly changed, despite the changes bearing no rational relationship to the purported reasons for the Order.
120. For example, the night EO-1 was signed, the Department of Homeland Security issued guidance interpreting the Order as not applying to lawful permanent residents. Overnight, the White House overruled that guidance, applying the Order to lawful permanent residents subject to a case-by-case exception process. On information and belief, the decision to continue applying EO-1 to lawful permanent residents was taken on the advice of Mr. Bannon.
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121. After the detention at airports of many individuals, including lawful permanent residents, led to chaos nationwide, then-Secretary Kelly issued a statement “deem[ing] the entry of lawful permanent residents to be in the national interest.” Secretary Kelly’s statement was made pursuant to Section 3(g) of the order, which requires such a decision to be made jointly with the Secretary of State and “on a case-by-case basis.”
122. Finally, on February 1, the Counsel to the President purported to interpret the First Executive Order as exempting lawful permanent residents from the ban entirely.
123. Similarly, initial guidance from DOS indicated that individuals with dual citizenship, with one country of citizenship subject to the ban, would be banned from entering the United States. On information and belief, word of a change in that policy spread irregularly, with notice being given to airlines and foreign nations but contradicted in official U.S. government communications.
124. Finally, CBP announced a changed policy, explaining, in response to the question “Does ‘from one of the seven countries’ mean citizen, national or born in?” that “Travelers are being treated according to the travel document they present.”
125. The government also reversed itself on its policy toward holders of Special Immigrant Visas from Iraq. Holders of these visas are clearly banned under
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the terms of EO-1, and they were refused entry when it went into effect. However, on February 2, 2017, the government changed course and allowed them to enter the United States despite EO-1.
126. Still other aspects of the First Executive Order and its implementation demonstrate utter disregard for the individuals affected by it. For example, President Trump and officials involved in drafting the order knew that the Order would bar the entry of individuals who were literally mid-air when the Order was issued. Nonetheless, and absent any exigency that would justify it, the Order was signed late on a Friday afternoon and took immediate effect. That decision had a number of predictable consequences, including: making it more difficult for the federal employees tasked with enforcing the order to obtain instructions on how to interpret and enforce the Order’s ambiguous provisions; prolonging the detentions at airports of those affected, and leading many to be wrongfully deported; and increasing the difficulty advocates had in accessing their clients and the courts.
127. Other actions taken by DHS and DOS to enforce EO-1 exhibited a zealous desire to go beyond even the draconian measures the Order actually required.
128. DOS, at the request of DHS, issued a letter purporting to provisionally revoke all immigrant and nonimmigrant visas of nationals of the seven designated countries on a categorical basis. The letter is dated January 27, 2017, but only
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came to light on January 31, 2017, when Department of Justice lawyers filed it in pending litigation. DOS stated that this action was taken to “implement[]” EO-1.
129. Ordinarily, visas are revoked only after individualized consideration of whether a particular visa should be revoked, not through mass simultaneous revocation of a broad swath of visas.
130. Still further evidence of discriminatory intent and effect is reflected in the statements of President Trump and his Administration seeking to defend and justify EO-1 after it was issued.
131. President Trump, for example, falsely stated that only 109 people were detained over the weekend following the issuance of EO-1, even though he knew or should have known that the number was far higher.
132. Indeed, pursuant to a federal district court order, the federal government has since revealed that at least 746 individuals were detained over a period of just 27 hours during the weekend after EO-1 was signed. This 27-hour period did not begin until a day after EO-1 went into effect. So the total number of detained persons was necessarily higher, and perhaps much higher.
133. The Inspector General of DHS conducted an investigation and reached conclusions corroborating the public reports regarding the chaotic implementation of the January 27 Order. According to a letter dated November 20, 2017, from the Inspector General to Senators Durbin, Duckworth, and McCaskill,
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the Inspector General concluded, among other things, that there was no “evidence that CBP detected any traveler linked to terrorism based on the additional procedures required by the EO.”
134. These chaotic, irregular, and irrational policies, policy changes, and statements indicate that the purported justifications for the First Executive Order were pretextual and support Plaintiffs’ allegation that the Order was motivated by an intent to discriminate against Muslims.
The Courts Enjoin Implementation of the First Executive Order 135. On February 2, 2017, this Court issued a nationwide injunction prohibiting enforcement of Sections 3(c) and 3(e) of the First Executive Order against lawful permanent residents. 136. On February 3, 2017, the United States District Court for the Western District of Washington (Robart, J.) enjoined the government from enforcing Sections 3(c), 5(a), 5(b), 5(c), and 5(e) of EO-1. 137. The same day and in response to the injunction, President Trump tweeted, “We must keep ‘evil’ out of our country!” 138. President Trump also personally attacked Judge Robart as a “so-called judge,” calling his opinion “outrageous,” “ridiculous,” and “terrible.” President Trump falsely claimed that one consequence of Judge Robart’s order is that now “anyone, even with bad intentions” must be allowed to enter the country, saying
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that the judge had “open[ed] up our country to potential terrorists” and put it in “such peril.” President Trump advised the public to “blame him and the court system” if “something happens.” Comments like this by a President about a sitting judge are extremely unusual, if not unprecedented, and reflect a fundamental lack of respect for important constitutional principles.
139. The government appealed Judge Robart’s order to the Ninth Circuit and sought a stay pending appeal.
140. After hearing oral argument, the Ninth Circuit issued a published decision denying the government’s motion for a stay, noting that “although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.” Washington v. Trump, 847 F.3d 1151, 1164 (9th Cir. 2017).
141. In reaching its holding, the Court noted that the “[t]he Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” Id. at 1168.
142. The Court also acknowledged “evidence of numerous statements by the President about his intent to implement a ‘Muslim ban.’” Id. at 1167.
143. Shortly after the Ninth Circuit issued its opinion, President Trump tweeted, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT
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STAKE!” He subsequently denounced the opinion as “a political decision” and stated, “[W]e’re going to see them in court, and I look forward to doing that. It’s a decision that we’ll win, in my opinion, very easily.”
144. On March 7, 2017, the government withdrew its appeal of the February 3 Order, leaving in place the nationwide preliminary injunction of Sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the January 27 Order.
The Administration Struggles to Create Post-Hoc Justifications for the Executive Order 145. Although some pronouncements by President Trump and his administration suggested that the government would seek to appeal the Ninth Circuit’s decision, other White House officials indicated that they were drafting a new Executive Order in order to circumvent that court’s and other judicial rulings regarding the constitutionality of the First Executive Order. 146. On February 16, 2017, following the Ninth Circuit’s per curiam decision, President Trump said, “[W]e can tailor the order to that decision and get just about everything, in some ways, more.” 147. On February 21, 2017, Senior White House Policy Advisor Stephen Miller, a key architect of the First Executive Order, stated that a revised order would be issued within a “few days” and that it was driven by the very same policy. “And so these are mostly minor, technical differences. Fundamentally, you are still going to have the same, basic policy outcome for the country.” When Mr.
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Miller was asked whether changes were being made in an attempt to alleviate constitutional concerns, he was defiant: “The rulings from those courts were flawed, erroneous and false. The president’s actions were clearly legal and constitutional.”
148. Around this time, senior White House officials began to leak accounts that President Trump had ordered DHS to work with DOJ to collect information that would justify the temporary ban on travel from the seven affected countries included in EO-1. One White House official said, “DHS and DOJ are working on an intelligence report that will demonstrate that the security threat for these seven countries is substantial and that these seven countries have all been exporters of terrorism into the United States.”
149. Numerous intelligence officials began expressing their shock at this request, which was perceived as an attempt to politicize intelligence.
150. At least two prior intelligence reports prepared by DHS refuted the justification for barring entry by individuals from the seven countries identified in the January 27 Order.
151. One draft intelligence report prepared by DHS assessed the potential heightened threat of terroristic activity posed by individuals from the seven countries affected by EO-1 and concluded that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.” This report found that less
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than half of the 82 individuals involved in terrorist activities since 2011 were foreign-born, and of those, “The top seven origin countries of the foreign-born individuals are: Pakistan (5), Somalia (3), and Bangladesh, Cuba, Ethiopia, Iraq, and Uzbekistan (2).”
152. A second intelligence assessment, prepared by DHS less than a week before issuance of the Second Executive Order, concluded that “most foreign-born, U.S.-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry,” and that many entered as minors and “nearly all parents who entered the country with minor-age children likely did not espouse a violent extremist ideology at the time they entered or at any time since, suggesting these foreign-born individuals were likely not radicalized by their parents.” The report also found that integration and mentoring services provided by federal, state, and private organizations to refugees and asylees could address underlying factors that lead to the radicalization of foreign-born U.S. residents.
153. Counter to the Trump Administration’s initial rhetoric emphasizing the urgency of a travel ban, the release of the Second Executive Order was repeatedly delayed for political reasons.
154. At one point, the White House indicated that President Trump would sign the Second Executive Order on March 1, 2017, but this was delayed yet again.
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One Administration official told a news outlet on February 28 that a reason for President Trump’s delay in signing an updated Executive Order was “the busy news cycle,” and the desire of the President that the new order “get plenty of attention.”
155. A senior Administration official told a different news outlet on March 1, 2017, that a related reason for the delay in releasing the updated Executive Order was the “positive reaction” to President Trump’s “first address to Congress” on the evening of Tuesday, February 28, 2017. The official said, “We want the (executive order) to have its own ‘moment.’” The article reported that “[s]igning the executive order Wednesday, as originally indicated by the White House, would have undercut the favorable coverage,” and the senior Administration official “didn’t deny the positive reception was part of the [A]dministration’s calculus in pushing back the travel ban announcement.”
156. On February 27, 2017, then-Press Secretary Sean Spicer discussed the soon-to-be-issued revised order (EO-2), saying: “the goal is obviously to maintain the way that we did it the first time.”
157. In a speech before Congress on February 28, 2017, President Trump asserted: “According to data provided by the Department of Justice, the vast majority of individuals convicted of terrorism and terrorism-related offenses since 9/11 came here from outside of our country.” However, on July 24, 2018, the
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Department of Justice conceded in response to a FOIA request for this “data” that “no responsive records were located.”
158. The administration’s delay in issuing EO-2 for purely political reasons, the transparent post-hoc attempts to rationalize EO-2 using nonexistent data, and the acknowledgements by the President and senior officials that EO-2 was intended to recreate the facially discriminatory EO-1 demonstrate that EO-2 was motivated by religious animus rather than legitimate national security concerns.
The Second Executive Order Alleges a Different Purpose But Seeks the Same End Result
159. On March 6, 2017—a full month after the District Court for the Western District of Washington enjoined the First Executive Order—President Trump issued the revised executive order. That Order is entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.”
160. The same day the Second Executive Order was issued, Attorney General Sessions and then-Secretary of Homeland Security issued a joint letter to President Trump stating that “we believe that it is imperative that we have a temporary pause on the entry of nationals from certain countries to allow this review to take place.” The fact that this letter was issued on the same day as the Second Executive Order demonstrates that the letter was a pretextual effort to justify that Order.
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161. In a press briefing the day the Second Executive Order was issued, then-Press Secretary Sean Spicer said that “the principles of the executive order remain the same.” Spicer was correct: the key principle of anti-Muslim animus that doomed the First Executive Order to unconstitutionality was unchanged.
162. The same day the Second Executive Order was issued, President Trump sent an email to supporters saying the order was fulfilling his promise to “keep America safe” by imposing restrictions on immigration from countries associated with “radical Islamic terrorism.”
163. The same day, the Department of Homeland Security published a “Q&A” document with answers to thirty-seven questions about the Second Executive Order. See Raofield Decl. ¶ 5, Ex. C.
164. Consistent with the statement of top administration officials that the new order would seek to accomplish the same goals as the original order, EO-2, after explicitly referring to the Ninth Circuit’s ruling, exempted certain categories of noncitizens that “have prompted judicial concerns” from the ban, and altered the original order’s “approach to certain other issues or categories of affected aliens” “in order to avoid spending additional time pursuing litigation” over the constitutionality of the original order. See EO-2 §§ 1(c), (i).
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165. The Second Executive Order significantly revised and expanded the purpose and policy sections of the First Executive Order, while keeping the substantive impact of the two Orders much the same.
166. The First Executive Order stated that “[i]t is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States.” The Second Executive Order implicitly acknowledged that both U.S. and foreign citizens commit acts of terrorism, stating that “[i]t is the policy of the United States to protect its citizens from terrorist attacks, including those committed by foreign nationals.” EO-2 § 1. Yet the Second Executive Order, like the First Executive Order, did not include any actions to address terrorist attacks by citizens of the United States.
167. The purpose and policy sections of the First Executive Order drew heavily on stereotypes about Muslims, justifying the ban as protecting citizens from foreign nationals “who would place violent ideologies over American law,” “who intend to commit terrorist attacks in the United States,” or “who engage in acts of bigotry or hatred (including ‘honor’ killings . . .).” EO-1 §§ 1, 2. The Second Executive Order replaced some of those discriminatory allusions to Muslims (although retaining others, as described below). EO-2 asserted that “conditions in six of the previously designated countries . . . demonstrate why their
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nationals continue to present heightened risks to the security of the United States.” EO-2, § 1(e). Brief country descriptions then followed. Id.
168. EO-2 identified only two concrete examples of persons who have committed terrorism-related crimes in the United States, after either entering the country “legally on visas” or entering “as refugees”:
a. “[I]n 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.” (Iraq is no longer covered by the travel ban.)
b. “And in October 2014, a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction[.]” Id. at 1(h). (EO-2 continued to bar entry to refugee children from Somalia.) 169. Notwithstanding the revised and expanded “Policy and Purpose”
section and certain other changes discussed more fully below, EO-2 was extremely similar to EO-1 in most important respects.
170. Like EO-1, EO-2 banned entry for a 90-day period for individuals from six of the seven predominantly Muslim countries identified in the First Executive Order: Syria, Sudan, Iran, Libya, Somalia and Yemen. EO-2 § 2(c). It
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omitted Iraq from that list. The six countries it targeted have overwhelmingly
Muslim populations that range from 90.7% to 99.8%.
171. The comparable provision of the First Executive Order (Section 3(c))
was enjoined by the courts as unconstitutional. Nevertheless, the Second Executive
Order retained this unconstitutional provision.
172. Section 3 of the Second Executive Order differed from the original in that it did not immediately apply to individuals with existing visas,3 and made
exceptions from its travel ban for lawful permanent residents, dual nationals
traveling on passports issued by a non-designated country, refugees living in the United States and certain other non-citizens.4
173. Nevertheless, EO-2 barred entry for virtually all other nationals of the
majority-Muslim designated countries, including: relatives of U.S. citizens from
3 Under Section 3(a), “the suspension of entry pursuant to section 2 of this order shall apply only to foreign nationals of the designated countries who: (i) are outside the United States on the effective date of this order; (ii) did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and (iii) do not have a valid visa on the effective date of this order.” EO-2 § 3(a)(i)-(iii). 4 Section 3(b) listed categorical “exceptions” from Section 2: lawful permanent residents; foreign nationals who are admitted or paroled into the United States “on or after the effective date of this order”; foreign nationals with “a document other than a visa . . . that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document”; dual nationals traveling on passports issued by a non-designated country; foreign nationals traveling on certain diplomatic visas; and foreign nationals who have been granted asylum as well as refugees who have been admitted to the United States. Id. §§ 3(b)(i)-(iv).
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the listed countries; family members of U.S. citizens who were seeking to reunite with their families on immigrant visas; students who had been admitted to study in the United States but not yet received visas; prospective employees who had been offered positions but not yet obtained visas; students and employees who may need to renew their visas; and many other individuals protected by prior court injunctions.5
174. Like the First Executive Order, the Second Executive Order also provided a mechanism for the government to extend the 90-day ban at the end of the 90-day period and/or to expand the ban to nationals from additional countries. Section 2(a) of EO-2 directed the Secretary of Homeland Security to “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
5 In the Department of Homeland Security’s Q&A document about the Second Executive Order, DHS related that nationals from one of the six designated countries who were presently in the United States, and “in possession of a valid single entry visa,” would have to obtain “a valid visa or other document permitting [them] to travel to and seek admission to the United States” in order to leave and obtain “subsequent entry to the United States.” See Raofield Decl. Ex. C, at Q4. DHS also related that international students, exchange visitors and their dependents from the six designated countries—who were in the United States but whose visas “expire[] while the Executive Order is in place”— would have to “obtain a new, valid visa to return to the United States” if they had to “depart the country.” See id. at Q25.
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order to determine that the individual is not a security or public-safety threat.” In addition, EO-2 explicitly provided that the review need not be conducted in a consistent manner between countries: “The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.” Id.
175. As with the First Executive Order, the Second Executive Order provided for the submission of a report on the Secretary of Homeland Security’s review within 20 days (rather than 30 days), a period (50 days rather than 60 days) for countries to respond to the review, and a provision for the President to thereafter issue a proclamation indefinitely banning nationals from a list of countries deemed to be non-compliant. Id. § 2.
176. The corresponding provisions of EO-2 (Section 3) were not enjoined by the courts, and remained in effect through March 15, 2017. The country-bycountry report required under EO-1 was due on February 26, 2017, eight days before EO-2 was issued. No such report was submitted to the President, however, until several months later.
177. EO-2 stated that “Iraq presents a special case” because of the “close cooperative relationship between the United States and the democratically elected Iraqi government” and because the “Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi
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nationals subject to final orders of removal.” EO-2 § 1(g). With this justification, EO-2 exempted foreign nationals of Iraq from the categorical ban on entry applicable to other countries originally targeted by EO-1. Instead, Iraqis were subject to “thorough review” and “consideration of whether the applicant has connections with ISIS or other terrorist organizations.” Id. § 4.
178. Like the First Executive Order, the Second Executive Order cut the number of refugees admissible to the United States for fiscal year 2017 from 110,000 to 50,000 and prohibited refugee admissions for 120 days, with an exception for discretionary case-by-case admissions. Compare EO-1 § 5, with EO2 § 6.
179. The 120-day suspension of refugee admissions—Section 5(a) of the First Executive Order—was enjoined by the courts as unconstitutional. Nevertheless, the Second Executive Order retained that unconstitutional provision, in its Section 6(a).
180. Section 6(a) of EO-2 was almost identical to its predecessor— enjoined Section 5(a) of EO-1—and differed only cosmetically, such as by modifying the refugee suspension to exclude those already scheduled for travel. While EO-2 removed other refugee provisions enjoined by the courts (particularly Section 5(c), which indefinitely suspended entry of Syrian refugees, and Section 5(e)’s explicit preference based on religious minority status), removal of those
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provisions did not alter the virtually complete overlap between new Section 6(a) and enjoined Section 5(a).
181. Section 6(a) of EO-2, like its predecessor, provided that after the 120day period is over, “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 “additional procedures”—identified by those officials as being necessary “to ensure that individuals seeking admission as refugees do not pose a threat” to the United States—have been “implemented” and “are adequate to ensure the security and welfare of the United States.”
182. Although EO-2 several times described the country ban as relating to “entry” into the United States, it also apparently barred ordinary visa processing for nationals of the six designated countries. Section 3(c) of EO-2 explained that “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 person from the six countries. Issuance of a visa was described as a “[c]ase-by-case waiver” of what was evidently intended to be a ban not just on entry but on new visas, as well.
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183. The government conceded in a March 15, 2017 court hearing that the Second Executive Order halted visa processing for individuals from the majorityMuslim countries listed in that order:
Although the Second Executive Order does not explicitly bar citizens of the Designated Countries from receiving a visa, the Government acknowledged at oral argument that as a result of the Second Executive Order, any individual not deemed to fall within one of the exempt categories, or to be eligible for a waiver, will be denied a visa. Thus, although the Second Executive Order speaks only of barring entry, it would have the specific effect of halting the issuance of visas to nationals of the Designated Countries. International Refugee Assistance Project v. Trump, No. TD-17-0361, slip op. at 21 (D. Md. March 16, 2017). 184. Like the First Executive Order, the Second Executive Order allowed for waivers to the six-country ban on a discretionary case-by-case basis. For the country ban, the First Executive Order simply stated that visa and other immigration benefits may be issued “when in the national interest,” while the Second Executive Order provided nine examples of situations where a waiver could be appropriate, such as for “an individual needing urgent medical care.” Compare EO-1 § 3(g) with EO-2 § 3(c). The circumstances enumerated in EO-2 reflected specific examples of individuals whose denial of entry pursuant to EO-1 resulted in the filing of lawsuits and widespread public outcry. 185. Likewise, the refugee ban remained subject to waivers on the same terms as the First Executive Order: “[O]n a case-by-case basis, in their discretion,
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but only so long as [the Secretaries of State and Homeland Security] determine[d]” that the refugee’s admission (1) “[was] in the national interest,” and (2) d[id] not pose a threat “to the security or welfare of the United States.” EO-1 § 5(e); EO-2 § 6(c).
186. Like the First Executive Order, the Second Executive Order reinforced stereotypes about Muslims and associated Muslims with violence, bigotry, and hatred, thereby discriminating against them and inflicting stigmatic and dignitary harms, among other types of injury. A May 2018 study has shown that hate crimes against Muslims in the United States have not only increased dramatically since President Trump announced his candidacy, but also spiked coincident with events such as his call for a Muslim ban.
187. For example, Section 11 of EO-2 (Section 10 of EO-1) required the Secretary of Homeland Security to periodically publish information about the number of “foreign nationals” involved in, among other things, terrorism-related activities, radicalization, and “gender-based violence against women, including socalled ‘honor killings’”—direct echoes of then-Candidate Trump’s broad statements disparaging Islam and Muslims.
188. Similarly, Section 6(d) of EO-2 (which was identical to Section 5(g) of EO-1) sought to expand the limited role State and local governments have in the refugee resettlement process beyond that envisioned by Congress. That section
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aimed to authorize and facilitate the stated desire and intent of some states and localities in the United States to discriminate against lawfully-admitted refugees on the basis of their nationality and/or religion. See, e.g., Exodus Refugee Immigration, Inc. v. Pence, 838 F.3d 902 (7th Cir. 2016) (affirming preliminary injunction on equal protection grounds of state executive order issued by thenGovernor of Indiana Mike Pence that sought to prevent the resettlement in the State of refugees from Syria).
189. In short, EO-2 was motivated by the same anti-Muslim purpose that motivated EO-1. In replicating much of the substance of the First Executive Order, the Second Executive Order had the same effect as its predecessor: it broadly banned nationals from listed majority-Muslim countries from both entry and receipt of visas; it suspended the U.S. Refugee Admissions Program in order to prevent the entry of Muslims into the United States; and it reinforced stereotypes about Muslims by associating them with terrorism, violence, bigotry and hatred.
The Courts Enjoin Enforcement of the Second Executive Order 190. The United States District Court for the District of Hawaii granted a temporary restraining order against the Second Executive Order on the evening of March 15, 2017. The court concluded that an objective observer “would conclude that the Executive Order was issued with a purpose to disfavor a particular
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religion, in spite of its stated, religiously-neutral purpose.” Hawaii v. Trump, 241 F. Supp. 3d 1119, 1134 (D. Haw. 2017).
191. In response to the Hawaii restraining order, President Trump told a rally in Nashville the same evening:
The order he blocked was a watered-down version of the first order that was also blocked by another judge and should have never been blocked to start with . . . . This new order was tailored to the dictates of the 9th Circuit’s—in my opinion—flawed ruling . . . . And let me tell you something, I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place. 192. The day after the Hawaii restraining order, the United States District Court for the District of Maryland issued a nationwide preliminary injunction against enforcement of Section 2(c) of the Second Executive Order, which restricted entry into the United States by nationals of the six listed countries. IRAP v. Trump, 241 F. Supp. 3d 539, 565–66 (D. Md. 2017). The court held that the plaintiffs showed a likelihood of success on the merits of their Establishment Clause claim. On May 25, 2017, the Fourth Circuit upheld the IRAP injunction in large part. IRAP v. Trump, 857 F.3d 554 (4th Cir. May 15, 2017), as amended (May 31, 2017), as amended (June 15, 2017). 193. On June 1, 2017, the Government filed an application for a stay of the Hawaii and IRAP injunctions with the Supreme Court and petitioned for a writ of certiorari in IRAP.
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194. The Ninth Circuit upheld the Hawaii injunction in large part on June 12, 2017, only lifting the injunction with respect to the review and reporting provisions of the Second Executive Order. Hawaii v. Trump, 859 F.3d at 741, 786. The court held that the Second Executive Order likely exceeded President Trump’s authority under the INA. Id. at 741.
195. The Second Executive Order was scheduled to expire on June 14, 2017. That day, the White House issued a Presidential Memorandum delaying the start date of all provisions which had been enjoined until 72 hours after the injunctions were lifted or stayed.
196. On June 26, 2017, the Government petitioned for a writ of certiorari in Hawaii. The same day, the Supreme Court granted the petitions in both cases.
197. The Supreme Court also stayed the IRAP and Hawaii preliminary injunctions “to the extent the injunctions prevent[ed] enforcement of § 2(c) with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” 137 S. Ct. at 2087. The injunctions remained in force for individuals with bona fide relationships. The Court stated that a bona fide relationship for individuals required “a close familial relationship.” A bona fide relationship for entities “must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the Second Executive Order].” Id. at 2088.
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198. On July 13, 2017, the District of Hawaii modified the scope of its injunction pursuant to the Supreme Court’s order. Hawaii v. Trump, 263 F. Supp. 3d. 1049 (D. Haw. 2017). The Ninth Circuit upheld the modified Hawaii injunction, ruling that the district court did not err in including grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States within the definition of bona fide relationships for individuals. Hawaii v. Trump, 871 F.3d 646 (9th Cir. 2017).
President Trump Continues to Express an Intent to Target Muslims 199. While the enforcement of the Second Executive Order was being litigated, President Trump continued to make official statements reflecting his intention to fulfill his campaign promise to block Muslims from entering the United States. 200. On June 5, 2017, President Trump tweeted: “The lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” 201. Also on June 5, President Trump tweeted his desire for the Government to “seek [a] much tougher version” of the Travel Ban through court victories. The next day, White House Press Secretary Sean Spicer stated that President Trump’s tweets were “official statements.”
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202. On August 17, 2017, President Trump tweeted: “Study what General Pershing of the United States did to terrorists when caught. There was no more Radical Islamic Terror for 35 years!” On information and belief, President Trump was referring to a story, now known to be a fabrication, that General Pershing killed Muslim insurgents in the Philippines with bullets dipped in pigs’ blood.
203. The next day, President Trump declared that “Radical Islamic Terrorism must be stopped by whatever means necessary! The courts must give us back our protective rights. Have to be tough!”
204. President Trump tweeted on September 15, 2017, that “the travel ban into the United States should be far larger, tougher and more specific-but stupidly, that would not be politically correct!”
205. These statements are consistent with the statements President Trump made with respect to the prior iterations of the travel ban: decrying “watered down” versions of the Muslim ban he promised the electorate while simultaneously insisting that the bans nonetheless effectuate his campaign promise beneath a “politically correct” veneer.
President Trump Issues a Third Executive Order Seeking the Same End Result
206. On September 24, 2017, the day that the nationality ban of EO-2 expired, President Trump attempted a third time to follow Mr. Giuliani’s instructions on implementing a Muslim ban “legally,” issuing a proclamation
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entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States By Terrorists and Other Public Safety Threats” (“EO3” or “Third Executive Order”).
207. EO-3 achieves largely the same policy outcomes as both EO-2 and EO-1.
208. Like its predecessors, EO-3’s bans are based on nationality. EO-3 applies to five of the seven predominantly Muslim countries identified in EO-1— Iran, Libya, Somalia, Syria, and Yemen—and bans most, if not all, of their nationals. Syrian nationals, for example, are categorically banned, regardless of whether they seek to enter as immigrants or nonimmigrants.
209. EO-3, however, goes even further than the Prior Orders by restricting entry by nationals of majority-Muslim nations indefinitely. EO-3 even bans individuals with bona fide relationships with persons or entities in the United States.
210. In addition to indefinitely banning immigration, EO-3 bans the issuance of certain non-immigrant visas, such as tourist and business visas, to nationals from the Designated Countries.
211. Reflecting EO-3’s even harsher tack, President Trump told reporters on the day it was issued, “The travel ban: the tougher, the better.”
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212. EO-3 indefinitely bans entry by nationals of the majority-Muslim
countries, with limited exceptions,6 as follows:
a) Iran: All nationals of Iran are banned from entry into the United States as
immigrants and as non-immigrants. Iranian nationals with valid student (F
and M) and exchange visitor (J) visas are excepted from the ban but are
subject to “enhanced screening and vetting requirements.”
b) Libya: All nationals of Libya are banned from entry into the United States as
immigrants and on business (B-1), tourist (B-2), and business/tourist (B1/B-
2) visas.
c) Somalia: All nationals of Somalia are banned from entry into the United
States as immigrants. Visa adjudications regarding the entry by Somalia
nationals as non-immigrants are subject to “additional scrutiny.”
6 The immigration and visa bans do not bar entry into the United States by lawful permanent residents of the United States; foreign nationals admitted to the United States on or after the applicable effective date of EO-3; “any foreign national who has a document other than a visa—such as a transportation letter, an appropriate boarding foil, or an advance parole document—valid on the applicable effective date under section 7 of this proclamation or issued on any date thereafter”; dual nationals; foreign nationals traveling on a diplomatic or diplomatic type visa, NATO visa, C-2 visa, or G-1, G-2, G-3 or G-4 visa; foreign nationals who have been granted asylum; refugees who have already been admitted; or individuals who have been granted relief under the Convention Against Torture. EO-3 § 3(b). EO-3 originally banned all nationals of Chad from entry into the United States as immigrants and on business (B-1), tourist (B-2), and business/tourist (B1/B-2) visas. On April 10, 2018, the White House lifted the bans with respect to nationals of Chad.
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d) Syria: All nationals of Syria are banned from entry into the United States as immigrants and on any type of non-immigrant visa.
e) Yemen: All nationals of Yemen are banned from entry into the United States as immigrants and on any type of non-immigrant visa.
EO-3 §§ 2(b), (c), (e), (g), (h). 213. The restrictions that apply to individuals who were subject to the
operative provisions of the Second Executive Order—nationals from Iran, Libya, Somalia, Yemen, and Syria who do not have a credible claim of a bona fide relationship with a person or entity in the United States—went into effect on September 24, 2017. All other restrictions were scheduled to go into effect on October 18, 2017. Id. § 7.
214. Like the Prior Orders, EO-3 ostensibly permits waivers to be granted where applicants establish that their exclusion would impose “undue hardship,” that they do not pose a national security threat, and where their admission would be in the “national interest.” EO-3 § 3(c)(i). The waiver provision also provides ten examples of situations in which a waiver might be appropriate, such as when “the foreign national is an infant, a young child or adoptee” or “an individual needing urgent medical care.” EO-3 § 3(c)(iv)(A)-(J). Also like the Prior Orders, waivers under EO-3 are purely discretionary and are issued, if at all, only on a case-by-case basis. EO-3 § 3(c).
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215. EO-3 directs the Secretaries of State and Homeland Security “to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.” EO-3 § 3(c).
216. The Prior Orders directed the Secretary of Homeland Security to conduct a worldwide “review” of countries to identify the information needed to determine whether individuals from each country are terrorists. EO-1 § 3(a); EO-2 § 2(a). The Prior Orders further provided that, once the review was complete and the temporary ban expired, the Secretary would submit “a list of countries” to subject to an indefinite ban. EO-1 § 3(b); EO-2 § 2(b).
217. Although EO-3 states that the DHS review had been completed and a report submitted to the President on July 9, 2017, although EO-3 indicates that information contained in the report has been shared with foreign governments pursuant to a “50-day engagement period,” and although EO-3 purports to base the substance of the ban on national security concerns identified in the review, §§ 1(c)1(f), the DHS review has not been made public. According to EO-3, the Designated Countries “have ‘inadequate’ identity-management protocols, information-sharing practices, and risk factors” with respect to the “baseline.” Id. § 1(e).
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218. EO-3 further states that DHS submitted a report on September 15, 2017, recommending entry restrictions. Id. § 1(h). This report has also not been made public.
219. EO-3 continues to target nationals from five of the six majorityMuslim countries targeted in EO-2, even though the DHS reports leaked in early 2017 indicated that targeting these countries is not rationally calculated to preventing terrorism in the United States.
220. The method by which the Government identified the countries whose nationals it would subject to the harsh travel restrictions in EO-3 is not rational, and cannot reasonably be understood to result from a justification independent of unconstitutional grounds.
221. According to EO-3, the Secretary of Homeland Security, the Secretary of State, and the Director of National Intelligence “developed a baseline for the kinds of information required from foreign governments to support the United States Government’s ability to confirm the identity of individuals seeking entry into the United States as immigrants and nonimmigrants, as well as individuals applying for any other benefit under the immigration laws, and to assess whether they are a security or public-safety threat.” EO-3 § 1(c).
222. The criteria used to establish the “baseline”—the integrity of the country’s passport documentation, the country’s information sharing practices, and
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the country’s “national security risk indicators”—are largely lifted from the requirements for participation in the Visa Waiver Program. Compare EO-3 § 1(c)(i)-(iii), with 8 U.S.C. § 1187(a)(12)(A)(i), (c)(2). The third criterion even expressly considers whether the country is a participant in the Visa Waiver Program. EO-3 § 1(c)(iii).
223. Under the Visa Waiver Program, nationals of approximately 38 countries can visit the United States for less than 90 days without obtaining a visa. 8 U.S.C. § 1187(a)(1)-(11). The Visa Waiver Program criteria emphasize a country’s passport documentation and information sharing practices because the program permits a foreign national to enter the United States without an in-person interview or a detailed written application. Id. Because the Visa Waiver Program makes entry into the United States quite simple for nationals of Visa Waiver countries, the passport documentation and information sharing practices of those countries are naturally important criteria in determining whether a country can participate in the Visa Waiver Program.
224. By contrast, EO-3 imposes outright bans on entry, regardless of how much screening is done. EO-3’s “baseline test” is not intended to identify countries whose nationals require an in-person interview or detailed written application for admission into the United States. Instead, EO-3’s “baseline test” is used to identify countries whose nationals may not enter even with an in-person interview, a
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detailed written application, or further screening. The criteria used to determine participation in the Visa Waiver Program are thus not rationally related to determining whether to impose outright bans on immigrant and/or nonimmigrant travel with respect to nationals of certain foreign countries. This is especially true considering that EO-3’s outright ban applies even to the nationals of Designated Countries who reside in countries that participate in the Visa Waiver Program, and to infants and children.
225. The results-oriented “baseline” review also irrationally fails to take into account the sufficiency of existing screening practices with respect to the countries evaluated. Given DHS’s conclusion in early 2017 that targeting the countries designated by EO-1 (most of which overlap with the Designated Countries) was not rationally related to combating terrorism, this failure was likely intentional. Had the Government incorporated into the “baseline” review the historical success rate of screening potential terrorists, its review would not have yielded the desired result: targeting Muslims.
226. In addition to the evidence that the “baseline” criteria described in EO-3 are not rationally related to EO-3’s purported objective, there are numerous logical inconsistencies between EO-3’s description of the results of the DHS review and the immigration bans EO-3 imposes. For example:
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a) EO-3 retains Somalia on the list of banned countries even though it expressly admits that Somalia meets the Secretary of Homeland Security’s “baseline” of U.S. ability to evaluate terrorist threats. EO-3 § 1(i).
b) EO-3 states that DHS identified 16 countries with “inadequate” “identitymanagement protocols, information-sharing practices, and risk factors.” EO3 § 1(e). EO-3 also states that 31 countries are “‘at risk’ of becoming ‘inadequate.’” Id. Yet EO-3 does not explain why only eight countries—six of which are majority Muslim—were targeted. Notably, EO-3 does not place entry restrictions on nationals from non-majority-Muslim countries with “‘widely documented’ problems with information sharing, such as Belgium.” IRAP v. Trump, 265 F. Supp. 3d at 593.
c) The General Accounting Office reported in May 2016 that more than a third of the 38 countries that participate in the Visa Waiver Program did not share the identity of terrorists or criminal histories, despite having agreed to do so as a condition of participating in the program. Yet EO-3 subjects none of the countries in the Visa Waiver Program—which are overwhelmingly European or Western—to any travel restrictions.
d) EO-3 states that the President, upon reviewing the DHS report, determined the “restrictions and limitations” imposed by EO-3 are “needed to elicit improved identity-management and information-sharing protocols and
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practices from foreign governments.” Id. § 1(h)(i). Yet EO-3 also states that immigrant visas for nationals from the majority-Muslim nations must be banned because individuals admitted on immigrant visas can become lawful permanent residents, who have “more enduring rights” than non-immigrant visitors and are “more difficult to remove,” id. § 1(h)(ii), thus highlighting that the true concern is not information sharing but rather preventing individuals from the majority-Muslim nations from becoming part of the American community. e) EO-3 imposes an absolute ban on immigrant visas from the majority-Muslim immigrant countries, although allowing entry for some non-immigrants from some of those countries, even as EO-3 acknowledges that “immigrants generally receive more extensive vetting than nonimmigrants.” Id. f) Neither EO-3 nor the Prior Orders imposed travel restrictions on nationals of Egypt, Lebanon, Saudi Arabia, or the United Arab Emirates—the countries of which the 9/11 attackers were citizens. 227. In an effort to disguise the third iteration of the travel ban as religionneutral, EO-3 also restricts entry into the United States by nationals of two additional non-Muslim countries, North Korea and Venezuela. Id. §§ 2(d), (f). Although the DHS review found that Venezuela has inadequate identity management protocols and information sharing practices, immigration from
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Venezuela is not restricted. EO-3 only restricts entry into the United States of certain government officials and their immediate family members on business (B1), tourist (B-2), and business/tourist (B1/B-2) visas. Nationals of North Korea— from which a negligible number of nationals enter the U.S.—are banned from entry into the United States as immigrants and as non-immigrants.
228. The addition of North Korea and Venezuela to the ban is mere costuming. Only a handful of Venezuelan government officials and their immediate families are targeted. EO-3 has no practical effect on the ability of Venezuelan nationals to enter the United States. According to State Department statistics, the ban on entry by North Korean nationals will affect fewer than 100 people. See Int’l Refugee Assistance Project (“IRAP”) v. Trump, No. TDC-170361, slip op. at 74 (D. Md. Oct. 17, 2017). If in effect in 2016, EO-3 would have barred 12,998 Yemenis, 7,727 Iranians, 2,633 Syrians, 1,797 Somalians, and 383 Libyans from obtaining immigrant visas. Meanwhile, only 9 North Koreans, and no Venezuelans, would have been prevented from obtaining immigrant visas in 2016. EO-3 thus bans the entry into the United States by Muslims on the same drastic scale as its predecessors, with virtually no effect on the entry of nonMuslims into the United States.
229. These facts and provisions betray that EO-3’s entry restrictions are not based on any rational or legitimate national security concerns, but rather are
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motivated by a goal of preventing immigration from majority-Muslim countries. EO-3 applies to nationals of the targeted countries regardless of where they currently reside and even if they reside in countries with identity-management protocols, information-sharing practices, and risk factors determined by the DHS review to be adequate.
230. Like the Second Executive Order, EO-3 purports to be religion-neutral and motivated by national security concerns. But the national security justification, as the leaked DHS reports confirm, does not provide any reasonable support for EO-3’s drastic immigration and entry restrictions on nationals from majorityMuslim Designated Countries. Nor does the addition of North Korea and Venezuela have any practical effect. The restrictions imposed by EO-3—like those imposed by EO-1 and EO-2 before it—stigmatize and harm Muslims to a degree disproportionate to non-Muslims and to any national security ends.
Continued Anti-Muslim Statements and Dysfunctional Waiver Process Following EO-3
231. Statements by President Trump demonstrate that EO-3, like the Prior Orders, was motivated by his desire to target Muslims, and not by legitimate, rationally based national security concerns.
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232. On November 25, 2017, President Trump tweeted, “We have to get TOUGHER AND SMARTER than ever before, and we will. Need the WALL, need the BAN!”
233. On November 29, 2017, President Trump re-tweeted three videos, of unverified origin, supposedly portraying Muslim individuals committing acts of violence. The videos had originally been tweeted by the leader of a far-right wing, ultranationalist British party which has repeatedly promoted anti-Muslim sentiments. The leader has previously been charged in the United Kingdom with “religious aggravated harassment.” James R. Clapper, former Director of National Intelligence, told reporters that the President’s re-tweets could “incit[e] or encourag[e] anti-Muslim violence.”
234. Also on November 29, 2017, a White House deputy press secretary defended President Trump’s re-tweets of the violent videos and confirmed that the Prior Orders and EO-3 were motivated by anti-Muslim animus. In response to a reporter’s question, “Does President Trump think Muslims are a threat to the U.S.?,” the deputy press secretary responded, “The president has addressed these issues with the travel order that he issued earlier this year, and the companion proclamation.”
235. On April 30, 2018, a reporter suggested that President Trump apologize for anti-Muslim statements he made during his campaign. The President
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asserted in response that “if I apologize, it wouldn’t make 10 cents’ worth of difference to them. There’s nothing to apologize for.”
236. In addition, the DHS official appointed by President Trump to implement EO-3 and other presidential directives has a lengthy record of expressing anti-Muslim sentiments. For instance, this official, Frank Wuco, stated that “an Islamist could care less . . . that you believe that ‘just getting along in a non-judgmental safe-place’ has special healing powers. THEY STILL WANT TO KILL YOU.” About the Orlando, Florida nightclub shooter, he remarked that there was “nothing radical” about him. “He is a Muslim who is following the strictures of Islam and its guidance and prescriptions for violence and warfare against unbelievers.”
237. Although EO-3 directed the State Department and DHS to issue guidance, no guidance was issued until the State Department published brief FAQs on its website in response to the June 26, 2018 Supreme Court decision in Trump v. Hawaii (discussed below). No meaningful guidance on how to implement EO-3’s waiver provisions has been issued.
EO-3’s Waiver Provisions Are a Sham 238. Implementation of EO-3’s waiver provisions has been, like that of the First Executive Order, chaotic and confused. Some applicants have reportedly not even been informed about the waiver process, and numerous others have received
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pro forma denials of both visas and waivers by consular offices in Armenia, Turkey, Djibouti, Dubai, Abu Dhabi, and elsewhere. The capricious implementation of EO-3’s waiver provisions evinces a familiar lack of foresight and strongly suggests that protecting the national security is not the driving force behind EO-3.
239. Publicly available data regarding the rate at which waivers have been granted provide further evidence that the Government is enforcing a de facto Muslim ban, notwithstanding the exceptions and waivers provided for by EO-3.
240. First, although EO-3 purports to provide a process for nationals of the Designated Countries to obtain waivers from the travel ban, only a tiny fraction of applicants eligible for waivers have been granted them. In a February 22, 2018 letter to Senator Van Hollen, the State Department stated that as of February 15, 2018—nearly two and one-half months since EO-3 went into full effect—only 2 waivers had been approved out of 8,406 applicants. The State Department stated that as of May 31, 2018, 768 applicants had been “cleared for waivers” out of 33,176 total applicants. Not all applicants who are “cleared” for waivers ultimately receive them.
241. As of July 15, 2018, the Government has “cleared” only 3.6% of waiver applications for further review by State Department officials. Being “cleared” does not mean that the applicants will actually receive waivers. The
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vanishingly small number of individuals who have received waivers demonstrates the illusory nature of this relief.
242. Second, even though EO-3 generally does not prevent the issuance of student visas, except to nationals of Syria, the Government has sharply reduced the issuance of student visas to nationals of the Designated Countries. For example, from January through July 2018, only 100 student visas were granted to Yemeni applicants, even though 852 student visas were granted to Yemeni applicants in 2016.
243. Third, even though EO-3 does not apply to refugee admissions, State Department data shows that the admission of Muslim refugees has almost entirely stopped since EO-3 was issued. For example, 10,786 Muslim refugees arrived from Somalia in 2016; by contrast, between January and July 2018, only 122 Muslim refugees from Somalia have entered the United States. Similarly, whereas over 15,000 Muslim refugees arrived from Syria in 2016, only 14 Muslim refugees have arrived from Syria between January and July 2018. Between January and July 2018, the United States has admitted zero Muslim refugees from Yemen, and one each from Iran and Libya.
244. These data confirm what President Trump and his advisors have repeatedly asserted: that the modifications to EO-2 and EO-3 were only ever
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intended to be window dressing, and not to substantively alter the Muslim ban that Candidate Trump promised.
245. Whether EO-3 is reasonably related to a justification independent of unconstitutional grounds depends in part on whether the waiver process is sham, an issue which cannot be fully assessed without further information that is in the possession of Defendants.
President Trump Issues a Fourth Executive Order 246. At a September 2017 meeting with senior officials discussing refugee admissions, a representative from the National Counterterrorism Center was prepared to present a report that analyzed possible risks by refugees entering the United States. Before the representative could do so, Associate Attorney General Rachel Brand stated that Attorney General Sessions did not “agree with the conclusions of the report,” and would not be guided by its findings. Civil servants at the interagency meeting were shocked by Brand’s statement, which not only betrayed the Government’s intention to supplant facts with an anti-Muslim agenda, but also rejected the view of the Federal Bureau of Investigation, which had contributed to the assessment. 247. On October 24, 2017, President Trump signed EO-4, which continued the discriminatory practices against Muslim refugees that were contained in the Prior Orders. Although Plaintiffs do not challenge EO-4, its continuation of
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President Trump’s anti-Muslim refugee ban provides important context. EO-4 suspends entry of refugees from eleven designated countries and indefinitely suspends the “follow-to-join” program, which allows refugees admitted to the U.S. to apply for admission of their spouses and children. The eleven countries are: Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria and Yemen.
248. Nine of the 11 countries targeted in EO-4 are majority-Muslim countries. Five of those majority-Muslim countries were identified in EO-3 as well as the earlier iterations of the Travel Ban—Iran, Libya, Somalia, Syria, Yemen. EO-4 also includes four additional majority-Muslim countries—Egypt, Mali, Iraq, and Sudan.
249. Citizens of the eleven countries comprised 44 percent of the nearly 54,000 refugees admitted into the United States in the 2017 fiscal year, including Iraq, Somalia, Syria, and Iran, who account for the vast majority of refugees to the United States in recent years. In recent years, Iran and the eight other predominantly Muslim countries have been responsible for approximately 45% of the total refugees admitted to the United States, with the largest contingents coming from four countries: Iran, Iraq, Somalia, and Syria (which, together, made up 41%, 38%, and 45% of total refugees in 2016, 2015, and 2014, respectively).
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250. On the same day that the Executive Order was released, thenSecretary of State Rex Tillerson, then-Acting Secretary of Homeland Security Elaine Duke, and Director of National Intelligence Daniel Coats released a Memorandum to the President dated October 23, 2017, describing how that October 24 Executive Order would be implemented.
251. The October 23 Memorandum acknowledges that refugee applicants from the 11 countries specified in EO-4 were already required to go through a heightened security-screening process called the Security Advisory Opinion (SAO) process. EO-4 found that “the refugee screening and vetting process generally meets the uniform baseline for immigration screening and vetting.” EO-4 § 2(b).
252. However, the October 23 Memorandum specifies that the Departments of State and Homeland Security will prioritize refugee applications from other countries (i.e., other than the 11 countries) and will “reallocate . . . resources” that would otherwise be “dedicated to processing nationals” of the 11 countries “to process applicants” from other countries.
253. In other words, through the combination of EO-3 and EO-4 the President enacted the Muslim ban he intended to enact with EO-1 and EO-2. EO-3 provides for an even more severe indefinite ban on immigration from predominantly Muslim countries, while EO-4 enacts the Muslim refugee ban.
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254. The U.S. District Court for the Western District of Washington issued a nationwide preliminary injunction against enforcement of EO-4 with respect to foreign nationals who have a bona fide relationship with a person or entity in the United States. Doe v. Trump, 288 F. Supp. 3d 1045 (W.D. Wash. 2017). The court concluded that the plaintiffs were likely to succeed in showing that EO-4 violates the Administrative Procedure Act and the INA. Id. at 1077, 1081-82.
Immigrants Were Very Carefully Screened Long Before the Executive Orders Were Issued 255. Individuals applying for family or employer-based visas are subject to an extensive, demanding vetting process that was already in place long before the Executive Orders were issued. A sponsor, such as an employer or family member, must first submit a petition on behalf of the visa applicant. In the case of familybased visas, the qualified sponsoring individuals must submit their petitions along with documentation establishing their U.S. citizenship or lawful permanent resident status, as well as documentation establishing their relationship with the visa applicant. Petitioners must also pay filing fees. 256. Once petitions are approved, the applicants’ information is then sent to the National Visa Center (NVC). The NVC collects additional fees, forms, and documents from visa applicants and their sponsors. Applicants must submit relevant birth certificates, adoption records, court and prison records, marriage certificates, marriage termination documents, military records, photocopies of
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passports, and police certificates (for applicants 16 years old or older). Each sponsor must also submit an Affidavit of Support and demonstrate that he or she has the ability to support the applicant financially in the United States.
257. Once the NVC has received all the relevant documentation, the visa applicant must submit Form DS-260 on the Consular Electronic Application Center. This form requires that the applicant fill in fields related to previous addresses; prior work, education, and training; family information; medical and health information; and criminal history.
258. The information submitted in these various forms is screened against various federal databases to verify that the applicant is not on any U.S. terrorism watch lists and has not committed any immigration or criminal violations.
259. Visa applicants are then scheduled for an interview with a consular officer. Visa applications are not considered complete until the applicant has interviewed with a consular officer.
260. This robust vetting system works. No person from a Designated Country has killed anyone in the United States in a terrorist attack in over 40 years.
The Executive Orders Do Not Advance National Security 261. There is no sound basis for concluding that Muslims generally, or Muslims from particular countries, are more likely to commit violent acts of terror than persons of other faiths or other countries.
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262. Many alternatives exist that do not involve targeting individuals based
on their faith or nationality as a proxy for faith, are less restrictive than EO-3, and
are more closely tailored to legitimate national security concerns.
263. Though cast as measures to improve national security, the Executive
Orders have been criticized by numerous national security experts as undermining
their stated purpose.
264. On January 30, 2017, over 100 former U.S. intelligence officials
wrote a letter opposing the First Executive Order. The authors of this letter wrote,
Simply put, this Order will harm our national security. Partner countries in Europe and the Middle East, on whom we rely for vital counterterrorism cooperation, are already objecting to this action and distancing themselves from the United States, shredding years of effort to bring them closer to us. Moreover, because the Order discriminates against Muslim travelers and immigrants, it has already sent exactly 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. We may even endanger Christian communities, by handing ISIL a recruiting tool and propaganda victory that spreads their horrific message that the United States is engaged in a religious war.
265. Many of these same officials also filed a joint statement in the Ninth
Circuit in Washington v. Trump further explaining the dangers posed by the First
Executive Order. The signatories, which included former Secretaries of State,
former CIA directors, former CIA deputy and acting directors, a former National
Security Advisor, and a former DHS Secretary, concluded that the January 27
Order would harm the interests of the United States in several respects, including
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endangering American soldiers fighting alongside allies from the affected countries; disrupting key counterterrorism, foreign policy, and national security partnerships; endangering intelligence sources in the field; feeding ISIL recruitment efforts; disrupting ongoing law enforcement efforts; hindering family reunification and humanitarian efforts; and causing severe economic damage to American citizens and residents.
266. In a joint statement by Senators Lindsey Graham, who sits on the Senate Armed Services Committee, and John McCain, who sat on the Senate Armed Services Committee and Homeland Security and Governmental Affairs Committee, the two Republican Senators expressed their concerns about the poor vetting and lack of consultation between the White House and numerous federal departments tasked with protecting U.S. national security during the drafting of the First Executive Order. In their joint statement, the two senators wrote, “Our most important allies in the fight against ISIL are the vast majority of Muslims who reject its apocalyptic ideology of hatred. This executive order sends a signal, intended or not, that America does not want Muslims coming into our country. That is why we fear this executive order may do more to help terrorist recruitment than improve our security.”
267. U.S. counterterrorism officials expressed similar reservations about EO-1. Paul Pillar, former Deputy Director of the CIA Counterterrorism Center,
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said, “The whole order is and will be read as another anti-Islam, anti-Muslim action by this president and his administration. It is not targeted at where the threat is, and the anti-Islam message that it sends is more likely to make America less safe.”
268. Similarly, former CIA director Michael V. Hayden discussed the efforts by U.S. diplomats, military commanders, and agency station chiefs to limit the damaging fallout from EO-1 before concluding that the Order “inarguably has made us less safe. It has taken draconian measures against a threat that was hyped. The byproduct is it feeds the Islamic militant narrative and makes it harder for our allies to side with us.”
269. The Second Executive Order did not quell the concerns of intelligence officials, military leaders and diplomats about the damage that the Executive Orders have done to national security.
270. On March 10, 2017, a bipartisan group of 134 cabinet Secretaries, senior government officials, diplomats, military service members and intelligence community professionals sent a letter to President Trump expressing their concern over the Second Executive Order. The letter states:
We are deeply concerned that the March 6, 2017 executive order halting refugee resettlement and suspending visa issuance and travel from six Muslim-majority countries will, like the prior version, weaken U.S. national security and undermine U.S. global leadership…. The revised executive order will jeopardize our relationships with allies and partners on whom we rely for vital
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counterterrorism cooperation and information-sharing. To Muslims— including those victimized by or fighting against ISIS—it will send a message that reinforces the propaganda of ISIS and other extremist groups, that falsely claim the United States is at war with Islam. Welcoming Muslim refugees and travelers, by contrast, exposes the lies of terrorists and counters their warped vision….
Following the 9/11 attacks, the United States developed a rigorous system of security vetting for travelers to our homeland, leveraging the full capabilities of the intelligence and law enforcement communities. Since then, the U.S. has added enhanced vetting procedures for travelers and has revised them continuously. Our government applies this process to travelers not once, but multiple times. Refugees are vetted more intensively than any other category of traveler. They are screened by national intelligence agencies and INTERPOL, their fingerprints and other biometric data are checked against terrorist and criminal databases, and they are interviewed several times. These processes undergo review on an ongoing basis to ensure that the most updated and rigorous measures are applied, and any additional enhancements can be added without halting refugee resettlement or banning people from certain countries.
271. Although the Trump Administration had many months of notice
regarding national security officials’ serious concerns about the First and Second
Executive Orders, the Trump Administration failed to address the problems these
experts had identified when the Administration issued the Third Executive Order
on September 24, 2017.
272. The primary critique of the national security experts is that the Prior
Orders banned individuals from entry based merely on the fact that they are
nationals of certain majority-Muslim countries, rather than on a robust and tested
metric: individualized factors identified in the screening process. Like the Prior
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Orders, EO-3 not only fails to identify individuals who present a risk, it
undermines national security by inflaming resentment against the United States.
273. On October 15, 2017, another bipartisan group of former intelligence
officials, military leaders, and diplomats issued a Joint Declaration asserting that EO-3 suffered from many of the same defects as EO-3.7 The Joint Declaration
states in part:
In our professional judgment, Travel Ban 3.0 would undermine the national security of the United States, rather than making us safer. If given effect, Travel Ban 3.0 would do long-term damage to our national security and foreign policy interests, and disrupt counterterrorism and national security partnerships. It would aid the propaganda effort of the Islamic State (“IS”) and serve its recruitment message by feeding into the narrative that the United States is at war with Islam. It would hinder relationships with the very communities law enforcement professionals need to engage to address the threat. And apart from all of these concerns, the Ban offends our nation’s laws and values.
274. On November 20, 2017, the Inspector General wrote a letter to
Senators Durbin, Duckworth, and McCaskill, informing them, among other things,
that there was no “evidence that CBP detected any traveler linked to terrorism
based on the additional procedures required by the EO.” The Inspector General
referenced an 87-page report “regarding the travel into the United States of
7 A version of this “Joint Declaration of Former National Security Officials” was filed in Hawaii v. Trump, No. CV 17-00050 DKW-KSC, ECF 383-1 (D. Haw. Oct. 15, 2017).
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individuals from seven countries” that the Office of Inspector General submitted to DHS on October 15, 2017. This report has not been made public.
275. The history of EO-3 and the Prior Orders, Candidate and President Trump’s statements calling for and supporting a Muslim ban, the lack of justification for the restrictions imposed by EO-3, and the apparent operation of EO-3 as a Muslim ban despite its sanitized provisions, demonstrate that there is no rational basis for concluding that EO-3 resulted from a justification independent of anti-Muslim animus. Additional relevant facts are currently in the possession of the Government.
276. In January 2018, DHS and DOJ issued a report that stated that approximately 73 percent of individuals convicted of international terrorismrelated charges in U.S. federal courts between September 11, 2001, and December 31, 2016 were foreign-born. The report has been heavily criticized by several former Government officials, including a former Assistant Attorney General for DOJ’s National Security Division. The Government’s report excludes acts of domestic terrorism committed by groups such as white supremacists, which are more likely to be supported by those born in the United States. It also includes individuals who committed crimes overseas and were brought to the United States for trial. The report’s flawed methodology results in vastly overstating the risk posed by immigrants.
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Litigation Regarding EO-3 and the Supreme Court’s Decision in Hawaii v. Trump 277. On October 17, 2017, the U.S. District Court for the District of Hawaii issued a nationwide temporary restraining order against the enforcement of EO-3’s entry restrictions on nationals from Chad, Iran, Libya, Somalia, Syria, and Yemen. Hawaii v. Trump, 265 F. Supp. 3d 1130 (D. Haw. 2017). On October 20, 2017, the court converted the TRO into a preliminary injunction. 278. Defendants applied to the Supreme Court for a stay of the order of the U.S. District Court for the District of Hawaii granting the preliminary injunction “pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought.” Trump v. Hawaii, No. 17-965, Docket entry (Dec. 4, 2017). The Supreme Court granted the application for the stay on December 4, 2017. Id. 279. On December 22, 2017, the U.S. Court of Appeals for the Ninth Circuit issued its ruling on the government’s appeal from the preliminary injunction. The Ninth Circuit affirmed in part and vacated in part, upholding the injunction and concluding that plaintiffs showed a likelihood of success on their statutory claims, but narrowing the scope of the injunction to give relief only to individuals with a credible bona fide relationship with the United States, pursuant
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to the Supreme Court’s decision in IRAP, 137 S.Ct. at 2088. Hawaii v. Trump, 878 F. 3d 662 (9th Cir. 2017).
280. Also on October 17, 2017, the U.S. District Court for the District of Maryland issued a preliminary injunction enjoining enforcement of EO-3’s entry restrictions on nationals from Chad, Iran, Libya, Somalia, Syria, and Yemen who have a bona fide relationship with an individual or entity in the United States. IRAP v. Trump, 265 F. Supp. 3d 570 (D. Md. 2017). The court concluded that the plaintiffs demonstrated a likelihood of success on the merits of their claims under the INA. The court also concluded that plaintiffs demonstrated a likelihood of success on their Establishment Clause claim, noting that “there are substantial reasons to question whether the asserted national security purpose” for EO-3 was the primary purpose of the ban and observing that the DHS review “was at least partially pre-ordained.” Id. at 76. On February 15, 2018, the Fourth Circuit affirmed the preliminary injunction issued by the U.S. District Court in Maryland but—like the Ninth Circuit—stayed its decision in light of the Supreme Court’s stay. IRAP v. Trump, 883 F.3d 233, 274 (4th Cir. 2018).
281. Defendants in the IRAP and Hawaii cases filed petitions for writs of certiorari in the Supreme Court of the United States. The Supreme Court granted the Government’s petition for a writ of certiorari in Hawaii v. Trump on January 18, 2018. 138 S. Ct. 923 (mem.).
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282. On June 26, 2018, the Supreme Court reversed the judgment of the Ninth Circuit and remanded the case for further proceedings. The Supreme Court concluded that President Trump’s issuance of EO-3 did not exceed the statutory authority of the president under the INA. Trump v. Hawaii, No. 17-965, 585 U.S. __, slip op. at 24 (June 26, 2018).
283. In determining the likelihood of the plaintiffs’ success on the merits of their Establishment Clause claim, the Court “assume[d] that [it could] look behind the face of” EO-3 and “consider . . . extrinsic evidence.” Id. at 32. The Court determined that the plaintiffs had not marshaled sufficient evidence to show they were likely to succeed on a claim that EO-3 could “reasonably be understood to result from a justification independent of unconstitutional grounds.” Id. at 38.
284. The Court noted that ongoing FOIA litigation revealed that the September 2017 DHS report is 17 pages. Id. at 35. The Court conceded that this information “offers little insight into the actual substance of the final report, much less predecisional materials underlying it,” id., highlighting the relevance of the multiple non-public reports and materials.
285. In a concurring opinion, Justice Kennedy wrote that “[w]hether judicial proceedings may properly continue in this case . . . is a matter to be addressed in the first instance on remand.” Id., slip op. at 1 (Kennedy, J., concurring). Justice Breyer also observed in a dissenting opinion that “the Court’s
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decision . . . leaves the District Court free to explore these issues [whether EO-3 violates the Establishment Clause] on remand.” Id., slip op. at 8 (Breyer, J., dissenting).
286. On June 28, 2018, the Supreme Court granted the petition for writ of certiorari in Trump v. IRAP, vacated the judgment, and remanded the case to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the Supreme Court decision in Trump v. Hawaii.
The Grave Harm to the Plaintiffs, Their Members and Their Clients 287. Implementation and enforcement of the Executive Orders caused the organizational Plaintiffs, their members and their clients, as well as the Individual Plaintiffs, substantial, concrete, and particularized injury, and will continue to harm them if not permanently enjoined. 288. The Individual Plaintiffs and many of the members and clients of the organizational Plaintiffs are Muslim. The Executive Orders convey an official message of disapproval and hostility towards Muslims, making clear that the government deems them outsiders, not full members of the political community. This marginalizes them, subjects them to suspicion and scrutiny and political isolation on the basis of religion and national origin, and inflicts other stigmatic and dignitary injuries.
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289. EO-3 and the Prior Orders deeply affected the Individual Plaintiffs and the members and clients of the organizational Plaintiffs by conveying to them that the United States discriminates against individuals who share their ethnicity and who hold the same religious beliefs, including members of their own families.
290. The Plaintiffs believe that, as a result of the Executive Orders, there are now a favored and a disfavored religion in the United States—in other words, that a religion has been established.
Arab American Civil Rights League (ACRL) 291. The ACRL works to build coalitions, promote understanding and cooperation and combat negative stereotypes. Led by prominent civil rights attorneys and advocates, the ACRL offers the community it serves a solid commitment to ensuring that their rights are protected and preserved. 292. ACRL works with Arab Americans from around the state of Michigan, which is home to the second largest Arab American community in the United States. ACRL’s members have been and continue to be affected by both EO-3 and the Prior Orders. 293. Many of ACRL’s members are refugees and/or family members of people seeking to enter the United States as refugees. Many of ACRL’s members are from the majority-Muslim Designated Countries and/or are family members of
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people from the Designated Countries who are seeking to immigrate to, travel to, study in, work in, or remain in the United States.
294. Due to EO-3, members of ACRL live in forced separation from family members who are unable to enter the United States.
295. ACRL members were stranded abroad following issuance of the First Executive Order, and ACRL has been working continuously with these members and other impacted individuals to ensure their return to the United States. Other ACRL members face real and immediate threats of future harm, including the inability to reunite with family members from the majority-Muslim Designated Countries and the inability to travel outside the United States with assurance that they will be able to return to the United States.
296. EO-3 blocks ACRL’s members, including U.S. citizens and lawful permanent residents, from receiving visits from, and/or reunifying with, their family members who live in the majority-Muslim Designated Countries.
297. ACRL’s members and clients who are Muslim or who are from the Designated Countries have been marginalized as a result of the anti-Muslim message conveyed by the Executive Orders and subjected to baseless suspicion, scrutiny, and social isolation on the basis of religion and national origin.
298. ACRL has also been directly affected by EO-3 and the Prior Orders because it has had to divert resources from its ordinary activities to cope with the
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fall-out from the Orders. ACRL has had to devote extensive leadership, attorney, and staff resources to responding to crises facing ACRL members as a result of the Orders, as well as to address widespread confusion and fear in the community that ACRL serves.
299. ACRL’s clients face numerous hurdles to bringing suit in their own name, including language and cultural barriers, lack of financial resources, rising Islamophobia which would subject them to intense scrutiny if they participate in litigation, and fear of retaliation by the Defendants given that Defendants have made anti-Islamic statements and have pledged aggressive action against immigrants and refugees.
American Civil Liberties Union of Michigan 300. The ACLU of Michigan is dedicated to protecting constitutional rights, including freedom of religion, freedom of speech, freedom of association and equal protection of the laws. The ACLU of Michigan and its members are harmed by EO-3 and the Prior Orders. 301. As a result of EO-3 and the Prior Orders, the ACLU has had to divert its resources from other organizational activities to address the consequences of those orders. After the First Executive Order was issued, the ACLU responded to the crisis by coordinating emergency legal assistance for impacted individuals and responding to numerous individual requests for assistance. When the Second
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Executive Order was enacted, the ACLU had to respond in a similar way. Now that the Third Executive Order has taken effect, the ACLU has again been forced to respond similarly. As a direct result of the Executive Orders, ACLU staff have spoken and will continue to speak at numerous community fora, have responded and will continue to respond to media requests for information, and have distributed and will continue to distribute Know Your Rights materials to impacted communities.
302. The ACLU has members who are directly affected by EO-3 and its implementation, including individuals whose immediate family members are nationals of the majority-Muslim Designated Countries.
303. EO-3 blocks the ACLU’s members, including U.S. citizens, from receiving visits from, and/or reunifying with, their family members who live in the majority-Muslim Designated Countries.
304. The ACLU has members of many faiths—Islam, Christianity, Judaism and others—whose ability to live out the teaching of their faiths, to interact with co-religionists and members of other faiths, and to provide assistance to immigrants and refugees as a matter of religious conviction is directly affected by the EO-3 and the Prior Orders.
305. The ACLU has members who are U.S. citizens, permanent residents and other persons residing in the United States who wish to hear the speech of and
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associate with people of all faiths who are now unable to travel to the United States because of EO-3 and the Prior Orders.
306. The ACLU regularly organizes events to educate the public on pressing matters of public concern, including speakers who address civil liberties and civil rights issues of the moment. EO-3 has chilled, and continues to chill, the participation of speakers in such events.
307. On May 3, 2018, the ACLU sponsored a local event along with partner organizations. The event included a spoken word performance, a panel discussion featuring local activists, and an interactive exhibit of stories of local Arab and Muslim community members impacted by immigration policies like EO3 and the Prior Orders, Temporary Protected Status, and Deferred Action for Childhood Arrivals. Because community members feared having their immigration status compromised or their family member’s immigration process delayed, they participated in the audiovisual and storytelling exhibit anonymously.
308. On June 28, 2018, shortly after the Supreme Court’s decision in Trump v. Hawaii was issued, the ACLU hosted an event for attorneys, community members, and individuals impacted by EO-3. Unfortunately, once again impacted family members did not speak publicly at the event for fear of Government reprisal.
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309. The ACLU plans to continue hosting educational events about the impact of EO-3 and hopes to include family members and individuals from the Designated Countries. The ACLU is sponsoring an event with the Arab American National Museum on September 14, 2018 related to anti-Muslim discrimination and has been asked repeatedly to provide individuals willing to speak out about their family’s own experience with EO-3. To date, the ACLU has been unsuccessful, not because there is a dearth of individuals impacted, but because the arbitrary and volatile nature of the Government’s implementation of the waiver provisions has silenced those seeking to successfully navigate them.
310. Because EO-3 and Islamophobia are matters of pressing public concern, because EO-3 and the Prior Orders have created widespread fear within the Muslim and Arab-American communities in Michigan, and because the ACLU believes it is vitally important to counteract the rising tide of Islamophobia before it becomes even worse, the ACLU wishes to continue holding events related to EO-3 and Islamophobia.
311. EO-3 and the Prior Orders have and continue to directly interfere with the ACLU’s ability to hold such events.
312. EO-3 will either prevent or create obstacles to the ACLU from organizing events with its desired speakers.
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The American Arab Chamber of Commerce 313. The Chamber seeks to promote and empower its member businesses on a local, national and international level. The Chamber seeks to strengthen its members by offering networking opportunities, events, and seminars to promote member businesses. The Chamber also seeks to promote its member businesses internationally by fostering trade between Michigan-based companies and businesses located in the Middle East, including in the Designated Countries. To this end, the Chamber provides international referrals, sponsorship of delegations and trade missions; and resources for accessing Middle Eastern business markets. 314. As the largest American-Arab business organization in the country, much of the Chamber’s work focuses on building economic and cultural bridges, locally, nationally, and globally. Internationally, the Chamber fosters trade and establishes relationships between the U.S. and Middle Eastern countries, and many of the Chamber’s member businesses have direct connections to Middle Eastern countries, including the Designated Countries. These efforts are largely led by the Chamber’s International Business Development Committee, which pursues projects to connect Chamber members with international business opportunities. As part of its mission, the International Business Development Committee seeks to foster closer business relationships and trade through trade missions between the United States and the Middle East, including the Designated Countries.
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315. In order to establish and sustain their businesses, the Chamber’s members must be able to interact with businesspeople from the Designated Countries and be able to invite those businesspeople to the United States. EO-3 and the Prior Orders directly interfere with the ability of the Chamber’s members to conduct such business dealings.
316. Many of the Chamber’s members have employees who are immigrants from the Designated Countries or are refugees. EO-3 makes it more difficult and expensive for the Chamber’s members to recruit, hire, and retain the best employees, and undermines the ability of the Chamber’s members to attract talent, business, and investment to the United States.
317. EO-3 also disrupts the Chamber’s mission of encouraging constructive relations and enhancing mutual understanding between the United States and Arab nations. The Chamber has received numerous inquiries from its membership as to whether the enforcement of the Executive Orders will strain relations between the United States and Arab nations, thereby undermining the Chamber’s mission of promoting greater understanding between the American people and Arab nations. Members are concerned that the Executive Orders create a negative stigma on Muslims and immigrants from the Designated Countries, directly conflicting with the missions and purposes of Chamber.
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318. The Chamber’s membership includes businesses created or run by refugees and immigrants from the Designated Countries. Many of these business leaders are Muslim. Chamber members have been marginalized as a result of the anti-Muslim and anti-Arab message conveyed by the Executive Orders. These members have been subjected to baseless suspicion, scrutiny, and social isolation on the basis of religion and national origin.
319. The Chamber assists its members with the certification and legalization process for exports. While this service is not limited to Arab nations, given the Chamber’s members and its mission, this certification process primarily deals with exports intended for Arab nations, which includes the Designated Countries. The Chamber’s export certification and legalization services have been adversely affected by the Executive Orders.
320. Because of EO-3 and the Prior Orders, members of the Chamber cannot travel unencumbered and cannot complete legitimate business and social obligations unencumbered. These Executive Orders disrupt existing business ties with businesses in the Designated Countries, hinder the development of economic ties with the Designated Countries, and restrict the creation of any future business ventures between the Chamber’s members and the Designated Countries.
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The Arab American and Chaldean Council (“ACC”) 321. ACC’s mission is to serve the Middle Eastern community of Southeast Michigan by maximizing the community’s skills, resources, and expertise, and by providing a variety of public health and behavioral health programs, many of which are directed towards immigrants, refugees, and their families. The ACC also seeks to promote understanding between the Middle Eastern community, its Middle Eastern clients and the larger community of Metropolitan Detroit. ACC has 40 outreach offices and annually serves more than 80,000 individuals in the metro Detroit. 322. Many of ACC’s clients are recent immigrants and refugees from the Middle East, and/or family members of people seeking to enter the United States as refugees or immigrants from the Middle East. Many of ACC’s clients are from the Designated Countries and/or are family members of people from the Designated Countries. Many of ACC’s clients are Muslim. Likewise, many of ACC’s staff are refugees, immigrants from the Designated Countries, or family members of refugees and immigrants from the Designated Countries. 323. EO-3 and the Prior Orders, by promoting the idea that people from majority-Muslim, Middle Eastern countries are dangerous and should be treated differently, directly interfere with ACC’s ability to carry out its mission and harm ACC’s clients.
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324. As a result of EO-3 and the Prior Orders, ACC has had to divert its resources from other organizational activities to address the consequences of those orders. For example, because ACC’s clients and the community it serves have been severely impacted by the Executive Orders, ACC’s senior leadership, as well as front-line staff, have had to set aside other responsibilities in order to educate the community about the Executive Orders, meet with other impacted organizations, respond to extensive press inquiries, and address pressing questions from impacted clients. Due to EO-3’s effect as a travel ban, ACC was forced to remove one fulltime employee from its refugee health assessment program, resulting in a drastic drop in billable services.
325. EO-3 and the Prior Orders also directly interfere with many of the ACC’s programs. A few representative programs that are harmed by EO-3 and the Prior Orders are described below. EO-3, like the Prior Orders, threatens these programs because many potential future clients for these programs, including immigrants and refugees, will no longer be able to enter the United States.
326. ACC’s Behavioral Health Division, which consists of five outpatient clinics, offers a comprehensive, community-based, outpatient program to address the emotional and psychological needs ACC’s clients. Since many of the ACC’s clients are individuals from the Designated Countries who have experienced persecution or even torture, the Behavioral Health Division offers services that
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focus on family, PTSD and severe trauma treatment. EO-3, by barring entry to individuals from the Designated Countries, interferes with ACC’s ability to carry out these programs and directly harms the clients of this program.
327. ACC also assists refugee students and immigrant students, many of whom are from the Designated Countries, with ESL classes, career counseling, certification or professional license achievement, enrollment, and financial aid applications through three outreach offices at different Oakland Community College campus sites. EO-3 and the Prior Orders harm this program by barring admission into the United States for many future participants of the program. The Executive Orders also harm ACC’s current clients in this program, who may not be able to obtain the necessary immigration documents to complete their studies, and harm ACC which must now expend resources advising these impacted students.
328. The ACC provides a variety of employment and job training services for immigrants and refugees through its PATH program. The PATH program includes job counseling, resume writing workshops, vocational training, ESL and vocational ESL classes, and job placement services. Additionally, to ensure that all individuals can pursue a career, the PATH program offers access to Child Care services. EO-3 and the Prior Orders directly harm ACC’s clients in the PATH program and also interfere with the PATH Program’s ability to pursue community and economic development by interfering with the ability of potential immigrant
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and refugee entrepreneurs to enter the United States and by diverting resources of Growth Center staff to addressing problems faced by their clients as a result of the Executive Orders.
329. The ACC offers a range of English as a Second Language training courses as well as bilingual and trilingual services that help refugee and immigrant clients understand and complete official government documents. EO-3, by barring entry to citizens of the Designated Countries, interferes with ACC’s ability to carry out these programs.
330. EO-3, by restricting the flow of clients for ACC’s programs and affecting funding for those programs, will have a significant financial impact on ACC. ACC anticipates that, as a result of EO-3, it will have to lay off staff from the impacted programs, or reassign those staff to fill vacancies in other programs. EO-3 also impacts ACC’s decisions whether to renew certain leases because it is unclear whether ACC will be able to continue the programs for which it had previously leased those spaces.
331. Some of ACC’s clients and staff who are United States citizens or lawful permanent residents have close family members who are nationals of the Designated Countries. EO-3 prevents those ACC clients and staff from receiving visits from, and/or reunifying with, their family members who live in the majority-
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Muslim Designated Countries. Due to EO-3, ACC clients live in forced separation from family members who are unable to enter the United States.
332. ACC’s clients face numerous hurdles to bringing suit in their own name, including language and cultural barriers, lack of financial resources, rising Islamophobia which would subject them to intense scrutiny if they participate in litigation, and fear of retaliation by the Defendants given that Defendants have made anti-Islamic statements and have pledged aggressive action against immigrants and refugees.
The Arab American Studies Association (“AASA”) 333. The AASA facilitates communication among scholars through meetings; promotes cooperation among members of the Association and persons or organizations concerned with Arab American Studies; stimulates academic research in Arab American Studies; and explores intersections and comparative approaches among Arab American, Arab, and diasporic Arab experiences. The AASA and its members are harmed by the Executive Orders. 334. The AASA has members who are U.S. citizens or lawful permanent residents whose national origin is from one of the Designated Countries, members with close family who are nationals of the Designated Countries, and members who engage in scholarly collaboration with nationals of the Designated Countries.
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335. Many AASA members work on issues of transnational migration, which requires study of where, why and how people leave their countries of origin and where, why and how they migrate to new areas. Such research necessarily involves research in countries where transnational migration originates, as well as close collaboration with scholars from those countries.
336. Because the Designated Countries are significant sources of transnational migration, it is particularly important for the AASA members to travel to those countries for research; to recruit faculty and graduate students from those countries; and to invite scholars from those countries for academic conferences, academic exchanges, and other scholarly collaboration. EO-3 interferes with the ability of AASA members to do all of those things.
337. The AASA and its members believe that in order for Arab American Studies to move forward as a field, it is critical that U.S.-based institutions recruit faculty and students from the Designated Countries, particularly given that these countries are pivotal to current understandings of transnational migration. AASA’s members who are U.S.-based faculty have, in the past, sought to recruit potential colleagues and students from the Designated Countries. Due to EO-3, AASA members can no longer recruit potential colleagues and students from many of the Designated Countries since those faculty and students will be unable to obtain visas to work or study in the United States.
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338. AASA and its members have the goal of advancing learning and exchanging ideas with other scholars in the areas of Arab American studies, Middle Eastern Studies, Migration Studies and similar disciplines. This requires AASA and its members to be able to hear from, speak with, debate with and associate with scholars from the Designated Countries. EO-3 will prevent AASA and its members from inviting scholars from the Designated Countries to present at academic conferences and engage in other collaborative research and scholarship projects.
339. The AASA will be harmed by EO-3. As part of its goal to advance learning, facilitate communication and promote cooperation, AASA sponsors conferences and other events that serve as a forum for scholarship, intellectual engagement, and pedagogical innovation. Due to EO-3, scholars from the Designated Counties will not be able participate in those conferences. AASA selects papers for its conferences based on the quality of the scholarship, not the nationality of the scholar, and its ability to make such merit-based decisions will be impaired if it cannot invite scholars from the Designated Countries. The AASA also fears that it will not be able to hold academic conferences outside the United States because AASA members who are nationals of the Designated Countries currently based at U.S. institutions may be unable to attend for fear of being unable to return to the United States.
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340. The AASA’s members likewise host conferences, invite speakers and artists, and sponsor other events to promote scholarship, intellectual engagement and pedagogical innovation. Due to EO-3, scholars from the Designated Counties will not be able participate in those events.
341. Because, and only because, the scholars, artists and students invited by the AASA and its members are from the majority-Muslim Designated Countries, those individuals cannot enter the United States to speak with and share ideas with the AASA and its members unless these scholars, artists and students obtain a case-by-case waiver under Section 3(c) of EO-3.
342. Because Section 3(c) of EO-3 does not provide narrow, objective or definite standards for the issuance of case-by-case waivers, the AASA and its members do not know when or whether waivers will be approved, thereby interfering with the AASA’s and its members’ ability to plan for and organize conferences, invite speakers and artists, and sponsor other events.
343. Under Section 3(c) of EO-3, in order for the scholars, artists and students invited by the AASA and its members to speak and share ideas with their colleagues in the United States, Defendants must evaluate the proposed purpose of their travel to the United States and decide that denying those scholars, artists and students the opportunity to speak and participate in academic exchange would cause “undue hardship” and that their entry into the United States “would be in the
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national interest.” Defendants cannot make such an assessment without considering the identity of the speaker and the content of the speech.
344. AASA is further concerned that the desired scholars, artists and students from the majority-Muslim Designated Countries will decline to come to the United States as a result of the Executive Orders. Some foreign speakers who are Muslim or whose national origin is in one of the Designated Countries are now refusing to come to the United States because they do not want to be subjected to possible prolonged and intrusive questioning, including questioning about their religious beliefs, as has reportedly occurred at ports of entry since issuance of the First Executive Order.
345. AASA members, particularly those who conduct research related to the Designated Countries, fear that they will be precluded from traveling to the Designated Countries when those countries institute reciprocal actions in response to EO-3 and the Prior Orders, as Iran has already done.
346. The research of AASA members within the United States has also been hampered by EO-3’s chilling effect on the speech of Muslim Americans. For example, an AASA member researching the history of Yemeni seafarers on the Great Lakes has found local Yemenis extremely hesitant or unwilling to speak about the research topic due to the increasing anti-Muslim sentiments caused by the Executive Orders.
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347. Some of AASA’s members who are United States citizens or lawful permanent residents have close family members who are nationals of the Designated Countries. EO-3 prevents those AASA members from receiving visits from, and/or reunifying with, their family members. For example, one AASA member, who is a United States citizen and an assistant professor for U.S.-Arab Cultural Politics at a major university, has ailing parents in Yemen, including a mother whose health is critical and for whom she wishes to obtain medical care in the United States. That AASA member cannot bring his parents to the United States. Another AASA member who is a U.S. citizen is unable to bring a family member recently diagnosed with muscular dystrophy to the United States for further diagnosis and treatment.
348. In addition, EO-3 could cause financial harm to AASA, by depriving it of membership dues and conference registration fees from individuals who cannot come to the United States as a result of EO-3.
The Individual Plaintiffs 349. Plaintiffs Hend and Salim Alshawish have four children. Their two youngest children, A.A. and M.A., are U.S. citizens and are currently residing in the United States. Their two other minor children, J.A.1 and J.A.2, are citizens of Yemen and are currently in Egypt.
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350. In November 2010, Mr. Alshawish petitioned for immigrant visas to bring his wife, Plaintiff Hend Alshawish, and their two Yemeni-citizen children, J.A.1 and J.A.2, to the United States.
351. Ms. Alshawish and the two minor children underwent extensive security and medical screening, and attended a consular interview.
352. On December 28, 2016, Ms. Alshawish was finally issued an IR1 spousal visa to enter the United States as a lawful permanent resident. Her visa was set to expire in six months.
353. However, upon the completion of the interview, the immigrant visas of the two minor children were not issued at the same time. Ms. Alshawish intended to wait till her children’s visas were issued before traveling to the United States.
354. On January 27, 2017, the date the First Executive Order was issued, Ms. Alshawish was in Egypt with J.A.1 and J.A.2. Mr. Alshawish had traveled to Egypt around September 20, 2016 to join her and their children before traveling back to the U.S. together.
355. As a result of the January 27 Order, Ms. Alshawish was barred from traveling to the United States.
356. Ms. and Mr. Alshawish closely monitored the news regarding the Executive Order. They heard many inconsistent reports from government officials
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about whether immigrant visas, such as the IR1 spousal visa Ms. Alshawish had obtained, would be revoked and whether individuals with immigrant visas would be allowed to obtain lawful permanent resident status.
357. For that reason, Ms. Alshawish and Mr. Alshawish decided to travel to the United States as soon as they learned that the First Executive Order had been enjoined by the courts, as it was unclear whether the injunction would be overturned on appeal. They booked last-minute tickets at considerable expense in order to ensure that Ms. Alshawish had the opportunity to enter the country while there was a window of opportunity to do so.
358. The decision to travel was heart-wrenching for Ms. Alshawish and Mr. Alshawish, because the immigrant visa applications for their two minor children, J.A.1 and J.A.2, were still in administrative processing and had not yet been approved. The couple had to decide whether Ms. Alshawish should travel while the injunction was in effect, allowing her to join her husband and two U.S.citizen children in the United States and become a lawful permanent resident, even though that meant leaving her two Yemeni-citizen children behind.
359. In desperation, Ms. Alshawish and Mr. Alshawish decided to have Mr. Alshawish’s sister in Egypt care for J.A.1 and J.A.2, while Ms. Alshawish, Mr. Alshawish, and their two U.S. citizen children traveled to the United States.
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360. On February 5, 2017, Ms. Alshawish was allowed to board a flight to the United States, and was allowed to enter the United States. Upon entry, her status became that of a lawful permanent resident. She is currently living with her two U.S.-citizen children.
361. Mr. Alshawish returned to Egypt on March 4, 2017 to care for J.A.1 and J.A.2, but has since returned to the United States to reunite with Ms. Alshawish and their two younger children.
362. Around December 2017, Mr. and Ms. Alshawish received a letter from the U.S. Embassy in Cairo rejecting their application for a visa for J.A.1 and J.A.2. The letter stated that “[t]he consular officer [was] reviewing [their] eligibility for a waiver” and that they would be “contacted with a final determination on [their] application as soon as practicable.” Mr. and Ms. Alshawish have not received any communications since.
363. EO-3 prohibits citizens of Yemen, including J.A.1 and J.A.2, from entering the United States, and halts ordinary visa processing, as did the Prior Orders.
364. Due to EO-3, Mr. and Ms. Alshawish cannot reunite their family by bringing their two Yemeni-citizen children to the United States to be with their mother and father and two U.S.-citizen siblings.
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365. Mr. Alshawish also suffers stigmatic harm because the Executive Orders reinforce stereotypes about Muslims and associates Muslims with violence, bigotry, and hatred, thereby discriminating against them and inflicting stigmatic and dignitary harms, among other types of injury.
366. Plaintiff Fahmi Jahaf, a U.S. citizen, married his wife, Basema Al Reyashi, in February 2011. Mr. Jahaf filed an immigrant petition for his wife after their marriage. The couple then waited four years to receive notice of the scheduling of a consular interview.
367. Ms. Al Reyashi is from a region in Yemen where there is intense conflict and that is bombed regularly.
368. Mr. Jahaf found out the petition for his wife’s visa was dismissed in September 2015 for failure to respond to certain notices, but it was later determined that the National Visa Center has been sending notices to the wrong address. Mr. Jahaf refiled a petition in July 2016 for his wife and submitted documentation proving that the National Visa Center had been sending the letters to the wrong address. The National Visa Center expedited his petition and visa application when they learned they had made a mistake.
369. Around July 2017, Ms. Al Reyashi went to an interview at the U.S. embassy in Djibouti. She was given a document that stated, “your visa is approved.” However, she was subsequently asked to provide additional
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information, and she is still awaiting a final decision on her application. On July 19, 2018, Plaintiff Mr. Jahaf requested an update on the status of Ms. Al Reyashi’s spousal visa application from the U.S. Embassy in Djibouti. On August 15, 2018, Mr. Jahaf received a message that Ms. Al Reyashi’s application is “undergoing necessary administrative processing.” Although the U.S. Embassy could not “estimate when this process will be completed,” Mr. Jahaf was instructed not to request updates on the status of his wife’s visa application.
370. Mr. Jahaf has been waiting for nearly eight years for his wife’s visa to be approved so that she can join him in the United States. Ms. Al Reyashi is still waiting in limbo in Djibouti, unable to join her husband of seven years in the United States, and unable to return to her conflict-ridden home in Yemen.
371. The Executive Orders have prohibited citizens of Yemen, including Ms. Al Reyashi, from entering the United States, and have prevented ordinary visa processing.
372. Due to the Executive Orders, Mr. Jahaf has been unable to bring his wife to the United States.
373. Mr. Jahaf also suffers stigmatic harm because the Executive Orders, including EO-3, reinforce stereotypes about Muslims and associate Muslims with violence, bigotry, and hatred, thereby discriminating against them and inflicting stigmatic and dignitary harms, among other types of injury.
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374. Plaintiff Kaltum Saleh is a U.S. citizen of over twenty years who resides in Wayne County, Michigan. Ms. Saleh’s elderly mother, Sahra Abdi Noor, is a Somali national and currently resides in Uganda. Ms. Noor is disabled and requires full-time care. Ms. Saleh’s sister has been caring for Ms. Noor. The family determined that Ms. Noor would join Ms. Saleh in the United States, where Ms. Saleh would care for her.
375. Ms. Saleh filed a petition for an immigrant visa for Ms. Noor on May 9, 2016. Ms. Noor attended an interview at the U.S. embassy in Nairobi, Kenya on March 20, 2018. Ms. Saleh traveled to Uganda, met her mother in Kenya for the interview, and cared for her mother during the trip.
376. At the interview, Ms. Noor was given a letter informing her that she was ineligible for a visa as a result of EO-3. The letter stated that the consular officer was reviewing her eligibility for a waiver. Ms. Noor was told that she would be notified as to her eligibility for a waiver within one week. Ms. Saleh stayed with her mother in Nairobi to await the notification.
377. After ten days had passed and Ms. Saleh and Ms. Noor had yet to receive a response, Ms. Saleh called the embassy for an update. She was again told that she could expect to receive a determination shortly. Ms. Saleh cared for her mother in Nairobi for multiple months, continually checking the status of the waiver determination online and calling the embassy for updates.
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378. On May 15, 2018, Ms. Saleh sent an e-mail to the U.S. embassy in Nairobi, requesting that they expedite her mother’s waiver application on humanitarian grounds. Two days later, Ms. Saleh received a reply e-mail with a generic response stating that the applicant would be contacted when a final determination was made.
379. Finally, Ms. Saleh drove her mother back to her mother’s home in Uganda, and Ms. Saleh returned to Michigan to rejoin her children.
380. A determination of Ms. Noor’s eligibility for a waiver from EO-3’s travel restrictions is still pending.
381. Due to the Executive Orders, Ms. Saleh has been unable to bring her elderly mother to the United States. Also due to the Executive Orders, Ms. Saleh was forced to spend multiple months away from her home and children in Michigan to care for her mother in Nairobi awaiting the promised response to the visa application.
382. Ms. Saleh also suffers stigmatic harm because the Executive Orders, including EO-3, reinforce stereotypes about Muslims and associate Muslims with violence, bigotry, and hatred, thereby discriminating against them and inflicting stigmatic and dignitary harms, among other types of injury.
383. It is unclear whether the Individual Plaintiffs will be determined to be eligible for a waiver under Section 3(c) of EO-3, whether such a waiver will be
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granted if they are eligible, or how much longer the process of seeking a waiver could take.
384. For the Individual Plaintiffs, pursuing a waiver on the theoretical possibility that it could be granted will involve additional time and expense. Consular processing for individuals from the Designated Countries frequently requires travel to a U.S. embassy in a third country.
385. By requiring a waiver for any visa or entry into the United States from the Designated Countries, the Third Executive Order imposes additional obstacles to the reunification of the Plaintiffs’ families. Those obstacles were imposed for the purpose of preventing Muslims from entering the United States.
CLASS ACTION ALLEGATIONS 386. The Individual Plaintiffs bring this action on their own behalf and on behalf of a class of all others similarly situated—that is, persons in the United States for whom EO-3 interferes with their ability to reunify with family members who are citizens of the Designated Countries (the “Plaintiff Class”). The Plaintiff Class includes but is not limited to individuals in the United States who currently have an approved or pending petition to the United States government to be reunited with family members who are nationals of the Designated Countries, or who will soon file such petition.
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387. The Plaintiff Class is so numerous that joinder is impracticable. According to the Annual Report of the Visa Office, in 2015, the United States issued approximately 70,000 immigrant and non-immigrant visas to nationals from the Designated Countries. As noted above, if in effect in 2016, EO-3 would have barred 12,998 Yemenis, 7,727 Iranians, 2,633 Syrians, 1,797 Somalians, and 383 Libyans from obtaining immigrant visas. The U.S. government previously estimated that between 60,000 and 100,000 people were affected by Section 3(c) of EO-1.
388. A large number of such persons reside, or have recently resided, in Michigan. Many thousands of Arab-Americans in Michigan are originally from the Designated Countries, and have family members in those countries.
389. The claims of the Plaintiff Class members share common issues of law, including but not limited to whether EO-3 violates their right to religious liberty, equal protection, freedom of speech and freedom of association under the First and Fifth Amendments to the United States Constitution.
390. The claims of the Plaintiff Class members share common issues of fact, including but not limited to whether EO-3 was adopted with the purpose of discriminating against Muslims and whether EO-3 is being or will be enforced so as to prevent Plaintiff Class members or their family members from obtaining visas and entering the United States from abroad.
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391. The claims of the Individual Plaintiffs are typical of the claims of members of the Plaintiff Class.
392. The Individual Plaintiffs will fairly and adequately protect the interests of the Plaintiff Class. The Individual Plaintiffs have no interest that is now or may be potentially antagonistic to the interests of the Plaintiff Class. The attorneys representing the Individual Plaintiffs include experienced civil rights attorneys and are considered able practitioners in federal constitutional litigation. These attorneys should be appointed as class counsel.
393. Defendants have acted, have threatened to act, and will act on grounds generally applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief appropriate to the class as a whole. The Plaintiff Class may therefore be properly certified under Fed. R. Civ. P. 23(b)(2).
CLAIMS FOR RELIEF COUNT I
FIRST AMENDMENT ESTABLISHMENT CLAUSE
394. Plaintiffs adopt and incorporate by reference all prior paragraphs as though fully set forth herein.
395. The Establishment Clause of the First Amendment prohibits the federal government from preferring one religion over another.
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396. EO-3 and the Prior Orders constitute unlawful discrimination against Muslims, disfavoring and disadvantaging Islam as compared to other religions, and establishing a preference for one religion over another. Defendants have not pursued a course of neutrality with regard to different religious faiths.
397. EO-3 and the Prior Orders have the purpose and effect of inhibiting religion, and are neither justified by, nor closely fitted to, any legitimate, much less compelling, governmental interest.
398. Defendants’ statements and actions before and during the implementation of EO-3 and the Prior Orders manifest an intent to discriminate against Muslims, disfavor and disadvantage Islam, and establish a preference for one religion over another.
399. Defendants’ statements and actions before and during the implementation of EO-3 and the Prior Orders have the effect of discriminating against Muslims, disfavoring and disadvantaging Islam, and establishing a preference for one religion over another.
400. EO-3 and the Prior Orders provide no facially legitimate and bona fide reason for denying entry into the United States to nationals of the Designated Countries. References in EO-3 and the Prior Orders to non-religious justifications for the actions taken are transparently a pretext for the underlying aim to establish this preference.
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401. Given the overwhelming evidence of anti-Muslim animus already in the public record, considering the numerous logical deficiencies in the scope and manner of restrictions imposed, and given that publicly available evidence indicates the waiver process is a sham, EO-3 cannot reasonably be understood to result from a justification independent of unconstitutional grounds.
402. Discovery will likely reveal further evidence that EO-3 resulted from anti-Muslim animus, that the scope and manner of the restrictions are not rationally related to legitimate national security concerns, that the waiver process is a sham, and that EO-3 therefore cannot reasonably be understood to result from a justification independent of unconstitutional grounds.
403. Through the actions described in this Complaint, Defendants have violated the Establishment Clause. Defendants’ violation inflicts ongoing harm upon the Individual Plaintiffs and all those similarly situated, and on the organizational plaintiffs, their members and their clients.
COUNT II FIFTH AMENDMENT EQUAL PROTECTION
404. Plaintiffs adopt and incorporate by reference all prior paragraphs as though fully set forth herein.
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405. The Due Process Clause of the Fifth Amendment to the U.S. Constitution guarantees the right to equal protection of the laws.
406. The equal protection requirement of the Due Process Clause requires strict scrutiny of governmental classifications that are based on religion.
407. EO-3 and the Prior Orders were substantially motivated by animus and a desire to discriminate on the basis of religion and have a disparate effect on persons of the disfavored religion.
408. The equal protection requirement of the Due Process Clause requires strict scrutiny of governmental restrictions on fundamental rights.
409. EO-3 and the Prior Orders burden fundamental rights by restricting the ability of the Individual Plaintiffs and those similarly situated, and of the members and clients of the organizational Plaintiffs, to associate with their families and raise their children.
410. EO-3 and the Prior Orders were substantially motivated by animus and a desire to restrict the fundamental rights of Muslims, and have a disparate effect on the ability of Muslims versus non-Muslims to exercise their fundamental rights to associate with their families and raise their children.
411. The statements of President Trump and his advisors, as well as the other information set out in this Complaint, provide direct evidence that EO-3 and
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the Prior Orders were adopted for discriminatory reasons, and that they are not tailored to the asserted government goal of promoting national security.
412. EO-3 and the Prior Orders are not narrowly tailored to serve a compelling governmental interest, and thereby violate the equal protection requirement of the Due Process Clause.
413. For the same reasons, EO-3 and the Prior Orders are not rationally related to a legitimate government interest.
414. EO-3 and the Prior Orders do not provide a facially legitimate and bona fide reason for denying entry into the United States to nationals of the Designated Countries. The ostensibly neutral reasons for denying entry that are listed in EO-3 and the Prior Orders were made in bad faith and as a pretext for denying entry of Muslims into the United States.
415. Given the overwhelming evidence of anti-Muslim animus in the public record, considering the numerous logical deficiencies in the scope and manner of restrictions imposed, and given the evidence that the waiver process is a sham, EO-3 cannot reasonably be understood to result from a justification independent of unconstitutional grounds.
416. Discovery will likely reveal further evidence that EO-3 resulted from anti-Muslim animus and cannot reasonably be understood to result from a justification independent of unconstitutional grounds.
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417. EO-3 and the Prior Orders, as well as Defendants’ statements and their actions to implement them, discriminate against individuals based on their religion and restrict their fundamental rights without lawful justification.
418. Through the actions described in this Complaint, Defendants have violated the equal protection guarantee of the Fifth Amendment. Defendants’ violation inflicts ongoing harm upon the Individual Plaintiffs and all those similarly situated, and on the organizational plaintiffs, their members and their clients.
COUNT III FIRST AMENDMENT FREEDOM OF SPEECH AND ASSOCIATION 419. Plaintiffs adopt and incorporate by reference all prior paragraphs as though fully set forth herein. 420. The First Amendment to the United States Constitution protects the marketplace of ideas; the right to receive information; the right to access social, political, esthetic, moral and other ideas and experiences; and the right to association. 421. Plaintiffs have a right to speak about EO-3, the Prior Orders, and the Administration’s anti-Muslim policies. They also have a right to hear, speak, debate with, and associate with individuals whose entry into the United States is curtailed by EO-3 and the Prior Orders.
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422. EO-3 and the Prior Orders chill the ability of Plaintiffs to speak, since they fear that speaking will affect their ability to obtain waivers for reunification with their family members. EO-3 and the Prior Orders also restrict Plaintiffs’ ability to hear from, speak with, debate with, and associate with nationals of the Designated Countries, a restriction which is based on the identity, national origin and religion of the speaker.
423. EO-3 and the Prior Orders do not provide a facially legitimate and bona fide reason for chilling speech or for denying entry into the United States to persons with whom Plaintiffs wish to speak, debate or associate, or whose ideas they wish to hear. The ostensibly neutral reasons for denying entry that are listed in EO-3 and the Prior Orders were made in bad faith and as a pretext for denying entry of Muslims into the United States.
424. Given the overwhelming evidence of anti-Muslim animus in the public record, considering the numerous logical deficiencies in the scope and manner of restrictions imposed, and given the evidence that the waiver process is a sham, EO-3 cannot reasonably be understood to result from a justification independent of unconstitutional grounds.
425. Discovery will likely reveal further evidence that EO-3 resulted from anti-Muslim animus and cannot reasonably be understood to result from a justification independent of unconstitutional grounds.
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426. EO-3 and the Prior Orders chill Plaintiffs’ ability to speak because they reasonably fear that this could impact their ability to obtain a case-by-case waiver under Section 3(c) of the March 6 Order and Section 3(c) of EO-3.
427. EO-3 and the Prior Orders condition Plaintiffs’ ability to hear from, speak with, debate with or associate with nationals of the Designated Countries in face-to-face interactions within the United States on the ability of those nationals to obtain a case-by-case waiver under Section 3(c) of the March 6 Order and Section 3(c) of EO-3.
428. Section 3(c) of EO-3 provides that a case-by-case waiver cannot be granted unless “the foreign national has demonstrated to the [CBP] officer’s satisfaction that denying entry during the suspension period would cause undue hardship, entry would not pose a threat to national security or public safety of the United States; and entry would be in the national interest.”
429. Section 3(c) of EO-3 operates as a licensing scheme for speakers from the Designated Countries, but does not provide narrow, objective or definite standards for the issuance of case-by-case waivers. Section 3(c) of EO-3 gives the government unfettered discretion to determine whose speech will be permitted and whose speech will not.
430. Section 3(c) of EO-3 operates as a content-based restriction on protected First Amendment activities because it permits or requires Defendants to
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evaluate the content of those activities to determine whether denying entry of a speaker from the Designated Countries would cause “undue hardship” and whether allowing Plaintiffs to hear from, speak with, debate with and associate with the speaker would “be in the national interest.”
431. Similarly, Section 3(c)(iii) of EO-3, which provides for a case-by-case waiver at the “discretion” of the consular officer or CBP agent, operates as a content-based restriction on protected First Amendment activities because it permits or requires Defendants to evaluate the content of those activities to determine whether they are an “appropriate” basis to grant entry into the United States.
432. Section 3(c) of EO-3 permits or requires Defendants to engage in unconstitutional content-based and viewpoint-based discrimination because Defendants must determine whether denying entry of a speaker from the Designated Countries would cause “undue hardship” and whether allowing Plaintiffs to hear from, speak with, debate with, and associate with the speaker would “be in the national interest.”
433. EO-3 does not provide a facially legitimate and bona fide reason for requiring nationals of the Designated Countries to seek a case-by-case waiver in order to enter the United States, thereby making it more difficult for Plaintiffs to hear from, speak with, debate with, and associate with nationals of the Designated
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Countries. The ostensibly neutral reasons for requiring nationals of the Designated Countries to seek a case-by-case waiver that are listed in EO-3 were made in bad faith and as a pretext for denying entry of Muslims into the United States.
434. Defendants’ violation of the First Amendment inflicts ongoing harm upon the Individual Plaintiffs and all those similarly situated, and on the organizational plaintiffs, their members and their clients.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Honorable Court grant the following relief:

A. Issue a permanent injunction enjoining Defendants, their officials,

agents, employees, assigns and all persons acting in concert or participating with

them from implementing or enforcing EO-3 against nationals of Iran, Libya,

Somalia, Syria and Yemen;

B. Enter a judgment pursuant to 28 U.S.C. § 2201 declaring that EO-3 is

unlawful and invalid;

C. Award Plaintiffs reasonable attorney’s fees and costs pursuant to the

Equal Access to Justice Act or any other applicable law; and

D. Grant such other and further relief as the Court deems equitable, just

and proper.

Dated: September 13, 2018

Respectfully submitted,

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Counsel for Arab American Civil Rights League

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com
HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC /s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com

/s/ Rula Aoun Rula Aoun (P79119) 4917 Schaefer Rd. Dearborn, MI 48126 (313) 633-0231 rula@acrlmich.org
VIDA LAW GROUP, PLLC /s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com

Counsel for American Arab Chamber of Commerce

FARHAT & ASSOCIATES, PLLC /s/ Helal Farhat Helal Farhat (P64872) Counsel for the American Arab Chamber of Commerce 6053 Chase Rd. Dearborn, MI 48126 (313) 945-5100 hfarhat@saflegal.com

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) Attorney for Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com

Case 2:17-cv-10310-VAR-SDD ECF No. 124 filed 09/13/18 PageID.2515 Page 126 of 127

Counsel for Hend Alshawish, Salim Alshawish, and Fahmi Jahaf

AYAD LAW, P.L.L.C. /s/ Nabih H. Ayad Nabih H. Ayad (P59518) Attorney for Plaintiffs 645 Griswold St., Ste. 2202 Detroit, MI 48226 (313) 983-4600 nayad@ayadlaw.com
HAMMOUD, DAKHLALLAH & ASSOCIATES, PLLC /s/ Kassem M. Dakhlallah Kassem Dakhlallah (P70842) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 kd@hdalawgroup.com
/s/ Ali K. Hammoud Ali K. Hammoud (P73076) 6050 Greenfield Rd., Suite 201 Dearborn, MI 48126 (313) 551-3038 ah@hdalawgroup.com

/s/ Rula Aoun Rula Aoun (P79119) 4917 Schaefer Rd. Dearborn, MI 48126 (313) 633-0231 rula@acrlmich.org
VIDA LAW GROUP, PLLC /s/ Mona Fadlallah /s/ Natalie C. Qandah Mona Fadlallah (P64197) Natalie C. Qandah (P58434) 43050 Ford Road, Suite 160 Canton, MI 48187 Phone: (734) 456-9004 Facsimile: (734) 456-9003 Mona@vidalawpllc.com Natalie@vidalawpllc.com

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Counsel for American Civil Liberties Union of Michigan, Arab American and Chaldean Council, Arab American Studies Association, and Kaltum Saleh

/s/ Miriam Aukerman Miriam Aukerman (P63165) American Civil Liberties Union Fund of Michigan 1514 Wealthy SE, Suite 260 Grand Rapids, MI 49506 (616) 301-0930 maukerman@aclumich.org
/s/ Jason C. Raofield Jason C. Raofield (D.C. Bar #463877) Nishchay H. Maskay (D.C. Bar #998983) Frederick C. Benson (D.C. Bar #1033399) (application forthcoming) Benjamin L. Cavataro (D.C. Bar #1034839) (application forthcoming) Rachel L. Fried (D.C. Bar #1029538) (application forthcoming) Ingrid L. Price (D.C. Bar #1017436) (application forthcoming) Taylor M. Steffan (D.C. Bar #1045250) (application forthcoming) Covington & Burling LLP One City Center 850 10th Street, NW Washington, D.C. 20001 (202) 662-5072 jraofield@cov.com

/s/ Michael J. Steinberg Michael J. Steinberg (P43085) Daniel S. Korobkin (P72842) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org
/s/ Margo Schlanger Margo Schlanger (N.Y. Bar #2704443 (3d Dept)) Cooperating Attorney, American Civil Liberties Union Fund of Michigan 625 South State Street Ann Arbor, Michigan 48109 (734) 615-2618 margo.schlanger@gmail.com

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 Case 2:17-cv-10310-VAR-SDD ECF No. 138 filed 07/10/19 PageID.2732 Page 1 of 21

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs, v.
DONALD TRUMP, et al.,

Case No. 17-10310 Honorable Victoria A. Roberts

Defendants. ______________________________/

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ THIRD AMENDED COMPLAINT [ECF No. 128]

I. INTRODUCTION On September 24, 2017, President Donald J. Trump issued Proclamation No.
9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” (the “Proclamation”), 82 Fed. Reg. 45161 (Sept. 27, 2017).
Four individuals and five organizations (“Plaintiffs”) bring a constitutional challenge to the Proclamation, claiming that it violates: (1) the Establishment Clause of the First Amendment (Count I); (2) the equal protection component of the Fifth Amendment’s Due Process Clause (Count II); and (3) their First Amendment rights to freedom of speech and association (Count III).
Before the Court is Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint. The Court DENIES the Motion.

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II. BACKGROUND A. The Proclamation The Proclamation was the third iteration of the President’s efforts to ban the entry
of nationals from certain predominantly Muslim countries into the United States. See Exec. Order 13,769, “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO-1”), 82 Fed. Reg. 8977 (Jan. 27, 2017); Exec. Order 13,780, “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO-2”), 82 Fed. Reg. 13209 (Mar. 9, 2017).
Preceding EO-1, EO-2, and the Proclamation, President Trump, as a presidential candidate, president-elect, and President, repeatedly made public statements exhibiting prejudice against Muslims and describing his desire and intention to prevent Muslims from entering the United States. For example, on December 7, 2015, then candidate Trump published a “Statement on Preventing Muslim Immigration” on his campaign website in which he “call[ed] for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” On March 9, 2016 during a televised interview, he stated: “I think Islam hates us” and “[W]e can’t allow people coming into this country who have this hatred of the United States . . . and [of] people that are not Muslim.”
In the summer of 2016, President Trump had Rudolph Giuliani, a campaign advisor, establish a commission to advise President Trump on his proposed Muslim ban; in a television interview, Giuliani explained that President Trump directed him to put the “Muslim ban” into effect “legally.” In early July 2016, Giuliani indicated that his
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commission caused President Trump’s proposal to shift from a “general ban” to “very specific, targeted criteria” focusing on specific countries.
President Trump quickly adopted the commission’s recommended strategy for putting the “Muslim ban” into effect “legally.” For instance, in a July 24, 2016 interview, President Trump stated that he would accomplish his Muslim ban by barring entry from certain “territor[ies]” because “[p]eople were so upset when I used the word ‘Muslim.’” During a debate on October 9, 2016, one month before the election, President Trump stated that “[t]he Muslim Ban is something that in some form has morphed into extreme vetting from certain areas of the world.”
On March 6, 2017 – a month after EO-1 was enjoined – President Trump issued EO-2. On March 15, 2017, the United States District Court for the District of Hawaii granted a temporary restraining order against EO-2. In a rally that same evening, President Trump said EO-2 “was a watered-down version of the first order” and “I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place.”
While the legality of EO-2 was litigated, President Trump continued making statements reflecting his intention to fulfill his campaign promise to block the entry of Muslims into the United States. On June 5, 2017, President Trump tweeted: “The lawyers and courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” President Trump expressed his intent to issue a third travel ban for the same purpose, stating that the Justice Department “should have stayed with the original Travel Ban, not the watered down, politically correct version” and that there should be a “much tougher version” of the ban. On September 15, 2017, nine days
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before the release of the Proclamation, President Trump tweeted that “the travel ban into the United States should be far larger, tougher, and more specific – but stupidly, that would not be politically correct!”
On September 24, 2017, EO-2 expired, and President Trump issued the Proclamation the same day. He stated, “The travel ban: the tougher, the better.”
On November 25, President Trump tweeted, “need the BAN.” On November 29, 2017, President Trump retweeted links to three anti-Muslim videos which portrayed Muslim individuals committing acts of violence. In response to questions about those videos and whether President Trump thought Muslims are a threat to the United States, the President’s deputy press secretary stated that “the President has been talking about these security issues for years now, from the campaign trail to the White House,” and he “has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.”
On October 17, 2017, the United States District Court for the District of Hawaii enjoined enforcement of the Proclamation; it found that the plaintiffs were likely to succeed on their claim that the Proclamation exceeded the scope of the President’s statutory authority under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1182(f) and 1185(a), as well as their claim that the Proclamation violates the INA’s prohibition on nationality-based discrimination with respect to the issuance of immigrant visas, § 1152(a)(1)(A). Hawaii v. Trump, 265 F. Supp. 3d 1140, 1158-59 (D. Haw.), aff’d in part, vacated in part, 878 F.3d 662 (9th Cir. 2017), cert. granted, 138 S. Ct. 923 (2018), and rev’d and remanded, 138 S. Ct. 2392 (2018).
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That same day, the United States District Court for the District of Maryland entered a preliminary injunction against enforcement of Section 2(c) of the Proclamation. Int'l Refugee Assistance Project v. Trump, 265 F. Supp. 3d 570 (D. Md. 2017), aff’d, 883 F.3d 233 (4th Cir. 2018), judgment vacated, 138 S. Ct. 2710 (2018). In relevant part, the Maryland court held that plaintiffs were likely to succeed on their claim that the Proclamation violates the Establishment Clause. Id. at 628-29.
The Government appealed the injunctions. The Supreme Court granted a stay of the injunctions pending disposition of the Government’s appeals. The Fourth and Ninth Circuits affirmed the injunctions entered by the Districts of Maryland and Hawaii. The Supreme Court granted the Government’s petition for a writ of certiorari in both cases.
On June 26, 2018, the Supreme Court held that the plaintiffs had not demonstrated a likelihood of success on their claim that the Proclamation violated the Establishment clause. Trump v. Hawaii, –– U.S. ––, 138 S. Ct. 2392, 2423 (2018). Although not particularly relevant to any of Plaintiffs’ claims here, the Court also overruled the plaintiffs’ statutory challenges under the INA, finding that the Proclamation did not exceed the President’s authority under 8 U.S.C. § 1182(f). Id. at 2412, 2415.
B. The Proclamation In a recent decision deciding a similar motion to dismiss by the Government, see Int’l Refugee Assistance Project v. Trump (“IRAP”), 373 F. Supp. 3d 650 (D. Md. 2019), the United States District Court for the District of Maryland succinctly summarizes the relevant aspects of the Proclamation: The Proclamation states that “absent the measures set forth in this proclamation, the immigrant and nonimmigrant entry into the United States” of nationals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen (the “Designated Countries”) “would be
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detrimental to the interests of the United States.” Procl. pmbl. Specifically, the Proclamation suspends the entry of all immigrants from seven of the eight Designated Countries, excepting only Venezuela. The ban on entry by nonimmigrants is “more tailored,” with a narrower ban imposed on countries with mitigating circumstances such as a willingness to play a substantial role in combating terrorism. Id. § 1(h)(iii).
As justification for the ban, the Proclamation references a July 9, 2017 report by the Acting Secretary of Homeland Security, issued pursuant to the requirements of EO-2, describing a “worldwide review” conducted in consultation with the Secretary of State and the Director of National Intelligence. In that review, these officials selected baseline criteria for assessing the sufficiency of the information provided by foreign governments to permit the United States to confirm the identities of individuals seeking to enter the country and make a security assessment about them. Id. § 1(c) . . . .
According to the Proclamation, pursuant to the process set forth in EO-2, nearly 200 countries were evaluated based on the criteria. Of those, 16 nations were found to be “inadequate” and 31 were found to be at risk of becoming so. In accordance with Section 2(d) of EO-2, those nations were given 50 days to bring their information-sharing practices into compliance with the United States'[] expectations. At the end of that 50-day period, eight countries were determined to have continued inadequate information-sharing practices: Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen. In a September 15, 2017 report to the President[], the Acting Secretary of Homeland Security recommended that entry restrictions be imposed on all of those countries with the exception of Iraq. Although Somalia's information-sharing practices were found to be adequate, the Acting Secretary of Homeland Security recommended that Somalia also be subjected to entry restrictions. Venezuela is the only designated country for which entry of immigrants is not suspended. Limitations on the entry of Venezuelan nationals are confined to barring entry of specific government officials and their immediate family members, who are suspended from traveling to the United States on B-1, B-2, and B1/B-2 visas.
In addition to providing exceptions for lawful permanent residents, dual nationals if traveling on a passport issued by a non-designated country, and foreign nationals who have been granted asylum status or who have been already admitted to the United States as refugees, the Proclamation provides for waivers, to be granted on a case-by-case basis by either a State Department consular officer or an official of United States Customs and Border Protection (“CBP”), based on criteria to be developed by the Secretary of State and the Secretary of Homeland Security. The Proclamation expressly provides that waivers may be granted only upon a
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showing that (1) denying entry would cause the foreign national undue hardship; (2) allowing entry would not pose a national security or public safety threat; and (3) entry would be in the national interest. The Proclamation went into effect when it was published as to foreign nationals then barred by EO-2. For all other covered foreign nationals, it became effective on October 18, 2017. On April 10, 2018, Chad was removed from the list of Designated Countries. IRAP, 373 F. Supp. 3d at 655-56. C. Plaintiffs’ Third Amended Complaint After the Supreme Court vacated the injunctions entered by the Maryland and Hawaii courts related to the Proclamation, Plaintiffs filed the Third Amended Complaint. The four individual Plaintiffs – Hend Alshawish, Salim Alshawish, Fahmi Jahaf, and Kaltum Saleh (the “Individual Plaintiffs”) – reside in the United States and have applied for immigrant visas for immediate relatives – spouses, parents, and minor children who are citizens of either Yemen or Somalia – to join them in the United States. The Individual Plaintiffs seek to represent a purported class of persons in the United States whose ability to reunite with family members is hindered by the Proclamation. The five organizational Plaintiffs – Arab American Civil Rights League, American Civil Liberties Union of Michigan, American Arab Chamber of Commerce, Arab American and Chaldean Council, and Arab American Studies Association (collectively the “Organizational Plaintiffs”) – seek to represent the interests of the Individual Plaintiffs, their members and/or clients, and their own free speech interests in sponsoring nationals of the Designated Countries to the United States. Plaintiffs say the Proclamation violates: (1) the Establishment Clause of the First Amendment to the United States Constitution (Count I); (2) the equal protection
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component of the Fifth Amendment’s Due Process Clause (Count II); and (3) their First Amendment rights to freedom of speech and association (Count III).
The Third Amended Complaint describes in great detail, President Trump’s statements expressing his intent to prevent Muslims from entering the United States and demonstrating his longstanding hostility toward Muslims and Islam, including statements surrounding the development and implementation of EO-1, EO-2, and the Proclamation. Plaintiffs say the Proclamation, like the first two Executive Orders, is motivated by an unconstitutional targeting of Muslims, and it bears no rational or legitimate relationship to the national security concerns it purports to advance. Among other things, Plaintiffs claim that the Department of Homeland Security previously concluded that targeting the countries designated by EO-1 was not rationally related to combating terrorism, demonstrating that the Proclamation’s entry restrictions are not rationally related to its purported objective.
Plaintiffs also say there are several inconsistencies between the results of the Homeland Security review and the Proclamation’s entry restrictions and bans, which further show that the purpose of the travel ban was to target Muslims. For example, Plaintiffs say the Proclamation retains Somalia on the list of banned countries even though it expressly admits that Somalia meets Homeland Security’s “baseline” for ability to evaluate terrorist threats. On the other hand, Plaintiffs say the Homeland Security review identified 16 countries with “inadequate” screening protocols and informationsharing practices, but the Proclamation only targeted eight countries – six of which are majority Muslim.
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Moreover, Plaintiffs claim that the exceptions to the visa suspensions are not rationally related to a national security interest. Although the Proclamation indicates that its restrictions are necessary for increased information sharing between the Designated Countries and the United States and acknowledges that immigrants generally receive more extensive vetting than nonimmigrants, the Proclamation bans immigrant visas from the Designated Countries but allows entry on some nonimmigrant visas. Plaintiffs claim that this does not accomplish increased information sharing. Based on the Proclamation’s acknowledgement that immigrants have “more enduring rights” than non-immigrant visitors and are “more difficult to remove,” Plaintiffs say the true concern is not information sharing; it is preventing individuals from the majorityMuslim countries from becoming part of the American community.
Plaintiffs say other features of the Proclamation also demonstrate its discriminatory purpose. Plaintiffs claim that the Proclamation added North Korea and Venezuela, two non-Muslim-majority countries, to the list of countries for the first time in an effort to cover up the discrimination against Muslims and disguise the Proclamation as religion-neutral, because the Proclamation has little to no practical effect on foreign nationals from those countries. Moreover, Plaintiffs allege in detail that the Proclamation’s waiver process – which would exempt individuals from the entry restrictions on a case-by-case basis – is a sham. Plaintiffs claim that publicly available data regarding the rate at which waivers are granted provide even more evidence that the Government enforces a de facto Muslim ban, notwithstanding the Proclamation’s waivers and exceptions.
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Defendants move to dismiss Plaintiffs’ Third Amended Complaint. The motion is fully briefed, and the parties each notified the Court of supplemental authority. III. LEGAL STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests a complaint’s legal sufficiency. The federal rules require that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Indeed, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible where the facts allow the Court to infer that the defendant is liable for the misconduct alleged. Id. This requires more than “bare assertions of legal conclusions”; a plaintiff must provide the “grounds” of his or her “entitlement to relief.” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007); Twombly, 550 U.S. at 555 (while detailed factual allegations are not required, a pleading must offer more than “labels and conclusions” or “a formulaic recitation of the elements of the cause of action”). Ultimately, the question is “‘not whether [the plaintiff] will ultimately prevail’ . . . but whether [the] complaint [is] sufficient to cross the federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 52930 (2011) (citations omitted).
In deciding a motion under Rule 12(b)(6), the Court must construe the complaint in the light most favorable to the plaintiff, accept as true all well-pled factual allegations, and draw all reasonable inferences in favor of the plaintiff. Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). The Court “may consider the
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Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant’s motion to dismiss so long as they are referred to in the Complaint and are central to the claims contained therein.” Id. IV. ANALYSIS
Defendants argue that the Court should dismiss Plaintiffs’ claims as a matter of law, because the Supreme Court rejected both statutory and constitutional challenges to the Proclamation in Hawaii, such that Hawaii forecloses Plaintiffs’ suit. Defendants also say the Organizational Plaintiffs lack standing to bring Establishment Clause claims, and the Court should dismiss two of the Individual Plaintiffs for improper venue.
A. Plaintiffs Have Standing to Bring an Establishment Clause Claim Defendants say the Organizational Plaintiffs lack standing to bring an Establishment Clause claim. Plaintiffs argue that because Defendants make a facial attack on subject matter jurisdiction, the Court must accept the allegations in the complaint as true; under this deferential standard, Organizational Plaintiffs say they have standing on three grounds: in their own right, on behalf of their members, and to assert the rights of their clients. Under Article III of the Constitution, federal courts are limited to deciding “Cases” or “Controversies.” U.S. Const. art. III, § 2. One essential element of a legal case or controversy is that the plaintiff has standing to sue. Hawaii, 138 S. Ct. at 2416. Standing “requires allegations—and, eventually, proof—that the plaintiff ‘personal[ly]’ suffered a concrete and particularized injury in connection with the conduct about which he complains.” Id. (citation omitted); see also Barry v. Lyon, 834 F.3d 706, 715 (6th Cir. 2016) (“Plaintiffs have standing if they suffer a ‘concrete,’ ‘particularized,’ and ‘actual’ or
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‘imminent’ injury that is caused by a defendant’s conduct and is likely to be ‘redressed by a favorable decision.’” (citation omitted)). “In a case arising from an alleged violation of the Establishment Clause, a plaintiff must show, as in other cases, that he is ‘directly affected by the laws and practices against which [his] complaints are directed.’” Hawaii, 138 S. Ct. at 2416 (citation omitted).
In addition to having standing in its own right, an association has standing to bring suit on behalf of its members if: (1) the association’s members have standing; (2) the interests at stake are relevant to the organization’s purpose; and (3) the claims and relief do not require the participation of individual members. Barry, 834 F.3d at 716 (citation omitted).
Defendants’ standing arguments fail. All Plaintiffs seek the same the relief under their Establishment Clause claim, and Defendants do not challenge the Individual Plaintiffs’ standing. The Supreme Court explained that “the presence of one party with standing is sufficient to satisfy Article Ill’s case-or-controversy requirement.” See Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 330 (1999) (holding that the presence of one party with standing assures that the controversy is justiciable); Bowsher v. Synar, 478 U.S. 714, 721 (1986) (holding that it was sufficient to confer standing under Article III where it was clear that at least one plaintiff had standing to challenge the constitutionality of the law in question, and that there was no need to “consider the standing issue as to the [other plaintiffs]”). Because the Individual Plaintiffs have standing to challenge the Proclamation under the Establishment Clause, this claim is justiciable and Article III’s case or
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controversy requirement is satisfied; there is no need to resolve whether the Organizational Plaintiffs also have standing. Id.
Furthermore, without making a conclusion, it appears that the Organizational Plaintiffs do sufficiently allege standing for purposes of surviving a motion to dismiss. Defendants’ argument to the contrary is conclusory and fails to meaningfully challenge the Organizational Plaintiffs’ allegations regarding standing.
B. Venue is Proper Defendants say venue is improper as to Plaintiffs Hend Alshawish and Salim Alshawish, and their claims should be dismissed, because they reside in New York and have no connection to this District. Defendants appear to abandon this argument in their reply brief, because they fail to address Plaintiff’s response on this issue. Regardless, the Court denies Defendants’ request to dismiss the claims of Hend and Salim Alshawish. Pursuant to 28 U.S.C. § 1391(e)(1)(C), venue is proper “in any judicial district in which . . . the plaintiff resides.” The Sixth Circuit construes the phrase “the plaintiff” in § 1391(e)(1)(C) to mean “any plaintiff.” See Sidney Coal Co. v. Soc. Sec. Admin., 427 F.3d 336, 345-46 (6th Cir. 2005). Because all Plaintiffs other than Hend and Salim Alshawish are residents of this District, venue is proper as to all Plaintiffs. See id. C. Hawaii, 138 S.Ct. 2392 (2018), is Not Dispositive of Plaintiffs’ Claims Unlike a typical motion to dismiss, Defendants do not challenge the sufficiency of Plaintiffs’ factual allegations. Rather, Defendants argue that the Supreme Court’s
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decision in Hawaii governs all three of Plaintiffs’ claims, and that all three claims fail as a matter of law under Hawaii, regardless of Plaintiffs’ factual allegations.
Plaintiffs say Hawaii was an Establishment Clause case; they claim that their equal protection and freedom of speech and association claims are subject to different standards of review. Plaintiffs also say that Hawaii is not dispositive of their Establishment Clause claim or other claims because the issue there – whether plaintiffs demonstrated that they were likely to succeed for purposes of a preliminary injunction – is materially different than whether Plaintiffs plausibly allege violations of their constitutional rights for purposes of a motion to dismiss, when the Court must view the complaint in the light most favorable to them.
The Court agrees with Defendants that the same standard – i.e., the standard set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972) and applied in Hawaii to the plaintiffs’ Establishment Clause claim – applies to all three of Plaintiffs’ claims. See Hawaii, 138 S.Ct. at 2419 (explaining that “Mandel’s narrow standard of review” applies “across different contexts and constitutional claims, including visa denials and “broad congressional” policies, and “‘has particular force’ in admission and immigration cases that overlap with ‘the area of national security’” (citing Fiallo v. Bell, 430 U.S. 787, 795 (1977), and Kerry v. Din, –– U.S. ––, 135 S. Ct. 2128, 2141 (2015) (Kennedy, J., concurring))); see also IRAP, 373 F. Supp. 3d at 669-70 (concluding that Mandel’s standard “applies equally to all of Plaintiffs' [c]onstitutional [c]laims,” including their Establishment Clause claim and their “other constitutional claims alleging that the Proclamation violates the equal protection and procedural due process components of the Fifth Amendment, the right to freedom of speech under the First Amendment, and
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the right to freedom of association under the First Amendment”). “The analysis does not differ depending on the right that is alleged to have been impinged.” IRAP, 373 F. Supp. 3d at 670.
However, in arguing that Hawaii forecloses Plaintiffs’ claims as a matter of law, Defendants misconstrue the Supreme Court’s holding.
1. Summary of the Supreme Court Decision and the Mandel Standard In concluding that the plaintiffs failed to demonstrate a likelihood of success on the merits of their Establishment Clause claim, the Supreme Court applied the legal standard set forth in Mandel; under this standard, courts ask whether the policy is “facially legitimate and bona fide.” Hawaii, 138 S. Ct. at 2419-20. While declining to “define the precise contours” of the Mandel inquiry in Hawaii, the Supreme Court concluded that it should “look behind the face of the Proclamation to the extent of applying rational basis review.” Id. at 2420. In consideration of Din, looking behind the face of the Proclamation would be relevant to assessing the “bona fide” prong; if there is an “affirmative showing of bad faith on the part of the [decision maker],” the Court may look behind the action to evaluate whether its justification was bona fide. See Din, 135 S. Ct. at 2141. The Supreme Court explained that the rational basis standard of review “considers whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes,” and that the Court “will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” Hawaii, 138 S. Ct. at 2420.
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Applying the Mandel standard, the Supreme Court found that the Proclamation was facially neutral as to religion and was premised on legitimate national security interests. Hawaii, 138 S. Ct. at 2420-21. The Court acknowledged the extrinsic record presented by the plaintiffs – highlighting President Trump’s hostility toward Muslims and how the Proclamation’s stated concerns about vetting protocols and national security were not legitimate but mere pretext for discriminating against Muslims; however, the Court concluded that, “because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.” Id. at 2421.
Thus, the Court found that, “[u]nder these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. . . .We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their [Establishment Clause] claim.” Id. at 2423.
2. Plaintiffs Allege Plausible Constitutional Challenges to the Proclamation and Survive Dismissal Under Rule 12(b)(6)
As set forth above, supra Section IV(C), the Mandel standard and rational basis review applies to each of Plaintiffs’ claims.
Although rational basis is a highly deferential standard, the Supreme Court has invalidated governmental classifications for failing to meet this standard. See, e.g., Romer v. Evans, 517 U.S. 620, 632, 635 (1996) (invalidating a state constitutional amendment that barred governmental action to provide legal protections to gays and lesbians upon finding that it was “inexplicable by anything but animus toward the class it affects” and “divorced from any factual context from which we could discern a relationship to legitimate state interests”); City of Cleburne v. Cleburne Living Center,
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473 U.S. 432, 448-50 (1985) (invalidating a zoning ordinance that required a group home for the mentally disabled, but not other multi-occupancy homes, to obtain a special use permit upon concluding that, because the evidence refuted all of the proffered reasons for the classification, the law “appear[ed] to . . . rest on an irrational prejudice against the mentally retarded”); U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534-36 (1973) (invalidating on rational basis review a federal restriction on providing food stamps to households of unrelated individuals upon finding that the proffered reason for the measure did not rationally support a ban on food assistance to all unrelated households).
Under this precedent, the Proclamation would fail rational basis review if the evidence revealed that for each of its proffered purposes, either that purpose was not a legitimate state interest or, if legitimate, the Proclamation was not rationally related to that purpose – such that it was unable to be explained by anything but animus toward Muslims. See IRAP, 373 F. Supp. 3d at 671. Ultimately, Plaintiffs will need to provide evidence to refute the assertion that the Proclamation is rationally related to the national security goals of preventing entry of inadequately vetted individuals and inducing other nations to improve information sharing. See id. (citing Hawaii, 138 S.Ct. at 2421).
Defendants say the Proclamation survives rational basis review as a matter of law under Hawaii; they argue that because the Supreme Court found that the Proclamation was facially neutral as to religion and had legitimate grounding in national security interests, the inquiry should end there. The Court disagrees.
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The scope of the Supreme Court’s review of the Proclamation and plaintiffs’ Establishment Clause claim was materially different than this Court’s review of Plaintiffs’ claims at the motion to dismiss stage.
In reviewing a motion for preliminary injunction, a court considers the “likelihood of success on the merits” based on a limited factual record; if a plaintiff fails to show that she is likely to succeed on the merits under those limited facts, a preliminary injunction is not appropriate. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
When reviewing a motion to dismiss under Rule 12(b)(6), the Court is limited to deciding whether the complaint states a plausible claim for relief; in making this determination, the Court must construe the complaint in the light most favorable to the plaintiff, accept as true all well-pled factual allegations, and draw all reasonable inferences in favor of the plaintiff. Bassett, 528 F.3d at 430. Thus, denial of a motion for preliminary injunction does not mean that the complaint fails to state a plausible claim for relief.
The Supreme Court explicitly recognized the limited nature of its holding in Hawaii, stating that “[u]nder these circumstances” – i.e., based on the limited record presented – “the Government has set forth a sufficient national security justification to survive rational basis review. . . .We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their [Establishment Clause] claim.” Hawaii, 138 S. Ct. at 2423 (emphasis added).
Beyond their reliance on Hawaii, Defendants fail to meaningfully challenge the factual allegations of Plaintiffs’ Third Amended Complaint.
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Such a challenge would be unavailing. Plaintiffs’ Third Amended Complaint contains extensive, detailed, and non-conclusory allegations that support their three claims. Specifically, Plaintiffs allege significant, well-pled and supported facts to refute that the Proclamation is rationally related to national security goals and to induce other nations to improve information sharing. See, supra, Section II(A), (C). It also plausibly alleges that the Proclamation is not able to be explained by anything but animus toward Muslims. Id.
An “impermissible motive,” or animus, can include “a desire to harm a politically unpopular group,” or “[i]t can . . . take the form of ‘negative attitudes,’ ‘fear,’ ‘irrational prejudice,’ or ‘some instinctive mechanism to guard against people who appear to be different in some respect from ourselves.’” Bassett v. Snyder, 59 F. Supp. 3d 837, 847 (E.D. Mich. 2014) (citations omitted). The Sixth Circuit finds the following factors relevant for determining whether a facially neutral state action was motivated by a discriminatory purpose: “(1) the impact of the official action on the group challenging the classification; (2) the historical background of the challenged decision, especially if it reveals numerous actions being taken for discriminatory purposes; (3) the sequence of events that preceded the state action; (4) procedural or substantive departures from the government’s normal procedural process; and (5) the legislative or administrative history.” Id. (citations omitted). Plaintiffs’ allegations go to the heart of several of these factors.
Although the Proclamation is facially neutral, its impact falls predominantly on Muslims. This is not surprising considering that the historical background of the
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Proclamation and sequence of events preceding it “reveal[] numerous actions being taken for discriminatory purposes.”
The Proclamation started as a Muslim ban, with President Trump calling for a total and complete shutdown of Muslims entering the United States. When asked how his Muslim ban would be applied by a customs agent, President Trump said the agent would ask, “[A]re you Muslim?” When a reporter asked, “And if [the person seeking entry] said yes, they would not be allowed in the country,” President Trump responded, “That’s correct.”
After EO-1 and EO-2 were challenged successfully, President Trump issued the Proclamation and made numerous statements revealing that his true purpose remained to effectuate his long-desired Muslim ban; for example, he stated that they “should have stayed with the original Travel Ban, not the watered down, politically correct version,” and “the travel ban into the United States should be far larger, tougher, and more specific – but stupidly, that would not be politically correct!”
The same day the Proclamation was issued, the President Trump’s deputy press secretary said that “the companion [P]roclamation” – i.e., a companion to EO-1 and EO2 – addresses the issues President Trump had been talking about for years, “from the campaign trail to the White House.” Notably, what President Trump made explicit while on the campaign trail was his desire and intention to ban Muslims from entering the United States – even if it meant framing the ban in terms of “territories.” President Trump has never disguised his true goal or the purpose of the ban; at all steps up to and after issuing the Proclamation, he has admitted that “[t]he Muslim Ban is something
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that in some form has morphed into extreme vetting from certain areas of the world”

because “[p]eople were so upset when I used the word ‘Muslim.’”

Accepting Plaintiffs’ allegations as true and drawing all inferences in their favor –

as is required at this stage – it is reasonable to infer that the “morphed” executive orders

and “companion” Proclamation “rest on an irrational prejudice against [Muslims],”

Cleburne, 473 U.S. at 450, and are “inexplicable by anything but animus toward

[Muslims],” Romer, 517 U.S. at 632, especially considering that President Trump

admitted that the “Muslim ban” only morphed into “extreme vetting” because “people

were so upset” when he vociferously discriminated against Muslims.

Plaintiffs plausibly allege sufficient facts to demonstrate that the Proclamation is

not rationally related to national security goals of preventing inadequately vetted

individuals and inducing other nations to improve information sharing. See IRAP, 373

F. Supp. 3d at 676. Indeed, Plaintiffs present sufficient evidence that the Proclamation

is unable to be explained by anything but animus towards Muslims.

Plaintiffs survive dismissal under Rule 12(b)(6).

V. CONCLUSION

Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint is DENIED.

IT IS ORDERED. Dated: July 10, 2019

s/ Victoria A. Roberts Victoria A. Roberts United States District Judge

21

 
 Case 2:17-cv-10310-VAR-SDD ECF No. 157 filed 11/01/19 PageID.2994 Page 1 of 17

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARAB AMERICAN CIVIL RIGHTS LEAGUE, et al.,

Plaintiffs, v.
DONALD TRUMP, et al.,

Case No. 17-10310 Honorable Victoria A. Roberts

Defendants. ______________________________/

ORDER: (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO CERTIFY JULY 10, 2019 ORDER FOR INTERLOCUTORY APPEAL AND TO STAY DISCOVERY PENDING
APPEAL [ECF No. 140]; (2) CERTIFYING JULY 10 ORDER FOR INTERLOCUTORY APPEAL; AND (3) DECLINING TO STAY DISCOVERY PENDING APPEAL

I. INTRODUCTION Plaintiffs challenge the constitutionality of Presidential Proclamation
No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats (the “Proclamation”), 82 Fed. Reg. 45161 (2017). This challenge is based on: (1) the First Amendment’s Establishment Clause; (2) the equal protection and due process components of the Fifth Amendment; and (3) the free speech and freedom of association components of the First Amendment.

Case 2:17-cv-10310-VAR-SDD ECF No. 157 filed 11/01/19 PageID.2995 Page 2 of 17
On July 10, 2019, the Court entered an Order Denying Defendants’ Motion to Dismiss Plaintiffs’ Third Amended Complaint (“July 10 Order”).
Defendants now move to certify the July 10 Order for interlocutory appeal and to stay discovery pending appeal. [ECF No. 140]. The motion is fully briefed.
Defendants’ motion [ECF No. 140] is GRANTED IN PART and DENIED IN PART. The Court CERTIFIES the July 10 Order for interlocutory appeal but declines to stay discovery pending appeal. II. THE JULY 10 ORDER
In deciding Defendants’ motion to dismiss, the Court construed the Supreme Court’s decision in Trump v. Hawaii, –– U.S. ––, 138 S. Ct. 2392 (2018). Among other things, the Court held that Hawaii was not dispositive of Plaintiffs’ claims because whether Plaintiffs plausibly alleged violations of their constitutional rights for purposes of a motion to dismiss was materially different from whether they were likely to succeed on the merits of their claims, which was the issue before the Hawaii Court.
Defendants argued that the Court should evaluate the Proclamation under a conventional application of the standard set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972), without any rational basis component. A conventional application of Mandel limits a court’s review “to whether the
2

Case 2:17-cv-10310-VAR-SDD ECF No. 157 filed 11/01/19 PageID.2996 Page 3 of 17
Executive gave a ‘facially legitimate and bona fide’ reason for its action. . . . ‘[W]hen the Executive exercises [its] delegated power negatively on the basis of a facially legitimate and bona fide reason, [] courts will neither look behind the exercise of that discretion, nor test it by balancing its justification’ against the asserted constitutional interests of U.S. citizens.” Hawaii, 138 S. Ct. at 2419 (quoting Mandel, 408 U.S. at 769-70).
Because the Supreme Court looked behind the face of the Proclamation – see id. at 2420 (“we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review”) – this Court did the same in the July 10 Order, effectively applying rational basis review but framing it as “the Mandel standard and rational basis review.” [See ECF No. 138, PageID.2747]. In so doing, the Court held that Plaintiffs stated a cause of action: the Proclamation did not withstand rational basis scrutiny. The denied Defendants’ Rule 12(b)(6) motion. III. DISCUSSION
A. Interlocutory Appeal Defendants ask the Court to certify the July 10 Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
3

Case 2:17-cv-10310-VAR-SDD ECF No. 157 filed 11/01/19 PageID.2997 Page 4 of 17
i. Legal Standard The Court may certify a non-final order for interlocutory appeal where the party seeking appellate review establishes that: “(1) the order involves a controlling question of law, (2) a substantial ground for difference of opinion exists regarding the correctness of the decision, and (3) an immediate appeal may materially advance the ultimate termination of the litigation.” In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002); 28 U.S.C. § 1292(b). “The decision to certify an appeal pursuant to section 1292(b) is left to the sound discretion of the district court.” Sigma Fin. Corp. v. Am. Int’l Specialty Lines Ins. Co., 200 F. Supp. 2d 710, 723 (E.D. Mich. 2002). However, because the federal legal system strongly disfavors piecemeal appeals, review under § 1292(b) should be “granted sparingly and only in exceptional cases.” Memphis, 293 F.3d at 350; see also Durant v. Servicemaster Co., 147 F. Supp. 2d 744, 752 (E.D. Mich. 2001) (interlocutory appeal “exists only for exceptional situations in which an immediate appeal may prevent protracted litigation”). All three conditions of § 1292(b) are met, and this is an exceptional case that warrants interlocutory appeal.
4

Case 2:17-cv-10310-VAR-SDD ECF No. 157 filed 11/01/19 PageID.2998 Page 5 of 17
ii. The Purported “Controlling Question[s] of Law” Raised by Defendants
Defendants say that the July 10 Order presents four “controlling question[s] of law” which justify granting relief under § 1292(b).
First: Defendants contend that in Hawaii, the Supreme Court discussed but did not decide whether the Mandel standard applied to its review of the Proclamation. Mandel is a highly deferential standard which cautions that once the Executive gives a facially legitimate and bona fide reason for its action, courts cannot look behind the exercise of that discretion or test it by balancing its justification against constitutional interests asserted by United States citizens. See Hawaii, 138 S. Ct. at 2419 (citing Mandel, 408 U.S. at 769-70).
The Hawaii Court acknowledged that if it applied Mandel, its review would end in favor of the Government. At the urging of the Government, the Supreme Court went on to look beyond the facial neutrality of the Proclamation and applied rational basis review. Id. at 2420 (“A conventional application of Mandel, asking only whether the policy is facially legitimate and bona fide, would put an end to our review. But the Government has suggested that it may be appropriate here for the inquiry to extend beyond the facial neutrality of the order. . . . For our purposes
5

Case 2:17-cv-10310-VAR-SDD ECF No. 157 filed 11/01/19 PageID.2999 Page 6 of 17
today, we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review.”).
Defendants now contend that the Sixth Circuit should be invited to decide this pure question of law: whether the Proclamation should be evaluated solely under the highly deferential Mandel standard of review (which Defendants urge) or whether rational basis review is appropriate. Defendants say resolving this question in its favor would materially affect the litigation by ending it.
Second: Hawaii was before the Supreme Court on a motion for preliminary injunction. In applying rational basis review, the Court found that the entry policy had legitimate grounding in national security concerns – apart from any religious hostility – and that the Government set forth a sufficient national security justification to survive rational basis review, such that the plaintiffs were not likely to succeed on the merits of their Establishment Clause claim. Hawaii, 138 S. Ct. at 2421-23 (“Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. We express no view on the soundness of the policy. We simply hold today that plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional
6

Case 2:17-cv-10310-VAR-SDD ECF No. 157 filed 11/01/19 PageID.3000 Page 7 of 17
claim.”). The Court reversed the grant of preliminary injunction and remanded the case for further proceedings consistent with the opinion.
Defendants say that by holding the Proclamation satisfies rational basis review, the Supreme Court has conclusively held that all of Plaintiffs’ claims fail as a matter of law, under either Mandel or rational basis review – even if the Hawaii ruling was made on a review of a preliminary injunction.
Third: Whether Plaintiffs third amended complaint adequately pleads that the Proclamation fails rational basis review under Rule 12(b)(6).
Fourth: Whether Plaintiffs have a cognizable liberty or property interest to sustain their due process and Establishment Clause claims based on the denial of entry to foreign-national family members.
iii. Not All of Defendants’ Issues Meet the Threshold for Interlocutory Relief
The first, third, and fourth issues raised by Defendants do not satisfy the conditions for interlocutory appeal.
The Hawaii decision forecloses any dispute on the first issue; the Supreme Court analyzed the Establishment Clause challenge to the Proclamation under the rational basis standard. Courts asked to consider the applicable standard since Hawaii have read that opinion as calling for rational basis review of constitutional claims challenging the Proclamation. See Int’l Refugee Assistance Project v. Trump (“IRAP”), 373 F. Supp. 3d
7

Case 2:17-cv-10310-VAR-SDD ECF No. 157 filed 11/01/19 PageID.3001 Page 8 of 17
650, 670-71 (D. Md. 2019), motion to certify appeal granted, 2019 WL 3936819 (D. Md. Aug. 20, 2019); Alharbi v. Miller, 368 F. Supp. 3d 527, 562 (E.D.N.Y. 2019). Thus, there is not “a substantial ground for difference of opinion” on this issue.
The third issue raised by Defendants is not appropriate for interlocutory appeal. The factual sufficiency of a complaint under Rule 12(b)(6) is not the type of pure legal question that justifies § 1292(b) relief – which is to be “granted sparingly and only in exceptional cases.” Memphis, 293 F.3d at 350.
Defendants did not raise the fourth issue in their motion to dismiss. [See July 10 Order, ECF No. 138, PageID.2743 (“Defendants do not challenge the Individual Plaintiffs’ standing.”)]. This issue is waived.
iv. Defendants Demonstrate an Interlocutory Appeal is Appropriate Under 28 U.S.C. § 1292(b)
The Court finds that the second issue (i.e., “controlling question of law) Defendants raise entitles them to review under § 1292(b).
a. The July 10 Order Involves “a Controlling Question of Law” and an Interlocutory Appeal “May Materially Advance the Ultimate Termination of [this] Litigation” The Court considers the first and third conditions under § 1292(b) together; the parties address them together and the two requirements are “closely tied” to one another. See Newsome v. Young Supply Co., 873 F.
8

Case 2:17-cv-10310-VAR-SDD ECF No. 157 filed 11/01/19 PageID.3002 Page 9 of 17
Supp. 2d 872, 878 (E.D. Mich. 2012) (“‘The requirement that an appeal may materially advance the ultimate termination of the litigation is closely tied to the requirement that the order involve a controlling question of law.’” (quoting City of Dearborn v. Comcast of Michigan III, Inc., No. 08-10156, 2008 WL 5084203, at *3 (E.D. Mich. Nov. 24, 2008))).
“A decision ‘involves a controlling question of law’ if ‘resolution of the issue on appeal could materially affect the outcome of litigation in the district court.’” Wang v. Gen. Motors, LLC, No. 18-10347, 2019 WL 1950185, at *1 (E.D. Mich. May 2, 2019) (quoting In re Baker & Getty Fin. Servs., Inc., 954 F.2d 1169, 1172 n.8 (6th Cir. 1992)).
An interlocutory appeal “materially advance[s] the ultimate termination of [a] litigation” when it significantly shortens the litigation and/or “saves judicial resources and litigant expense.” See Newsome, 873 F. Supp. 2d at 878 (citation and internal brackets omitted); see also Wang, 2019 WL 1950185, at *1 (“The moving party satisfies the third requirement where the resolution of a controlling legal question would avoid trial, as well as when it would ‘otherwise substantially shorten the litigation.’” (citation omitted)).
Defendants say that because the same standard of review applies to all of Plaintiffs’ constitutional claims, resolving whether the Supreme Court
9

Case 2:17-cv-10310-VAR-SDD ECF No. 157 filed 11/01/19 PageID.3003 Page 10 of 17
held in Hawaii that the Proclamation satisfies rational basis review as a matter of law would not just significantly narrow the scope of this litigation but would end the case. Thus, they say they satisfy the first and third elements under § 1292(b). In response, Plaintiffs merely state that an “interlocutory appeal would do nothing more than create additional delay” because Defendants “intend to simply re-argue issues that they have already lost.”
Plaintiffs assertion that Defendants intend to simply reargue issues they already lost gets them nowhere; that is the precise nature of a typical appeal. Indeed, other than in exceptional circumstances, a party may not raise new arguments on appeal that were not raised below.
Defendants satisfy the first and third conditions under § 1292(b). If the Sixth Circuit concludes that the Supreme Court held in Hawaii that the Proclamation conclusively satisfies rational basis review as a matter of law, such that no complaint which challenges the Proclamation on rational basis grounds can ever be considered by a court, Plaintiffs’ constitutional challenges to the Proclamation would be foreclosed.
The Court finds that the Proclamation involves a controlling question of law, and that resolution of it on appeal could materially advance the ultimate termination of the litigation. See Wang, 2019 WL 1950185, at *2.
10

Case 2:17-cv-10310-VAR-SDD ECF No. 157 filed 11/01/19 PageID.3004 Page 11 of 17
b. A Substantial Ground for Difference of Opinion Exists Regarding the Correctness of the July 10 Order “‘A substantial ground for difference of opinion exists where reasonable jurists might disagree on an issue’s resolution, not merely where they have already disagreed.’” In re Trump, 874 F.3d 948, 952 (6th Cir. 2017) (quoting Reese v. BP Expl. Inc., 643 F.3d 681, 688 (9th Cir. 2011)). “‘Stated another way, when novel legal issues are presented, on which fair-minded jurists might reach contradictory conclusions, a novel issue may be certified for interlocutory appeal without first awaiting development of contradictory precedent.’” Id.; see also In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013) (courts find a substantial ground for difference of opinion exists when: “‘(1) the question is difficult, novel and either a question on which there is little precedent or one whose correct resolution is not substantially guided by previous decisions; (2) the question is difficult and of first impression; (3) a difference of opinion exists within the controlling circuit; or (4) the circuits are split on the question’” (citation omitted)). The controlling legal issue here is whether Hawaii held that the Proclamation satisfies rational basis review as a matter of law, such that all
11

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constitutional challenges to the Proclamation are foreclosed forever. This issue is a difficult and novel one. There is no controlling precedent.
Hawaii involved review of a preliminary injunction. In discussing rational basis review in Hawaii, the Supreme Court described the question as whether the policy “can reasonably be understood to result from a justification independent of unconstitutional grounds.” Hawaii, 138 S. Ct. at 2420. The Court then concluded that “[t]he Proclamation does not fit th[e] pattern” of policies where it “is impossible to discern a relationship to legitimate state interests or . . . is inexplicable by anything but animus. . . . [B]ecause there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.” Id. at 2420-21.
The Supreme Court also held that: (1) the Proclamation “is an act that is well within executive authority and could have been taken by any other President,” Hawaii, 138 S. Ct. at 2423; (2) “[t]he Proclamation is expressly premised on legitimate purposes,” id. at 2421; and (3) “the Government has set forth a sufficient national security justification to survive rational basis review,” id. at 2423.
12

Case 2:17-cv-10310-VAR-SDD ECF No. 157 filed 11/01/19 PageID.3006 Page 13 of 17
Defendants say fair-minded jurists could conclude that the Supreme Court’s decision on a preliminary injunction established as a matter of law that the Proclamation satisfies rational basis review, and that constitutional challenges to the Proclamation are forever foreclosed.
At least two district courts reached this conclusion. See Alharbi, 368 F. Supp. 3d at 565 (dismissing Establishment Clause claim against the Proclamation because it “[wa]s foreclosed by the Supreme Court’s decision in [Hawaii]”); Emami v. Nielsen, 365 F. Supp. 3d 1009, 1022-23 (N.D. Cal. 2019) (noting that a “sizeable roadblock” stood in the way of plaintiffs’ equal protection claim against the Proclamation – i.e., that “[t]he Supreme Court has already concluded in reviewing the Proclamation that ‘the Government has set forth a sufficient national security justification to survive rational basis review’” (quoting Hawaii, 138 S. Ct. at 2423)).
On the other hand, in addition to this Court, at least one other district court found that Hawaii does not hold that the Proclamation satisfies rational basis review as a matter of law and does not foreclose constitutional challenges to the Proclamation. See IRAP, 373 F. Supp. 3d at 675 (“[T]he Supreme Court’s merits analysis of the Proclamation under rational basis review was based on a preliminary record representing a
13

Case 2:17-cv-10310-VAR-SDD ECF No. 157 filed 11/01/19 PageID.3007 Page 14 of 17
snapshot in time and does not necessarily preclude a different determination at a later stage of the case on a more fulsome record.”).
The Court agrees with Defendants and finds that fair-minded jurists might reach contradictory conclusions on whether Hawaii held conclusively as a matter of law that the Proclamation satisfied rational basis review such that Plaintiffs’ claims are forever foreclosed, particularly since the Supreme Court stated it was “simply hold[ing] . . . that plaintiffs have not demonstrated a likelihood of success on the merits of their [Establishment Clause] claim.” See Hawaii, 138 S. Ct. at 2423.
The issue is also novel; it involves application of a recent Supreme Court decision that the Sixth Circuit has yet to consider. See Eberline v. Douglas J. Holdings, Inc., No. 14-CV-10887, 2019 WL 989284, at *2 (E.D. Mich. Mar. 1, 2019) (finding that an issue is novel where “its resolution is not substantially guided by previous decisions,” reasonable jurists might disagree on the issue’s resolution, and “the Sixth Circuit has not yet had an occasion to consider it”); Al Maqaleh v. Gates, 620 F. Supp. 2d 51, 55 (D.D.C. 2009) (district court’s interpretation and application of recent Supreme Court decision established “novelty” for § 1292(b) certification).
Because the July 10 Order presents a controlling legal issue that is both novel and one on which fair-minded jurists could disagree, the second
14

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condition under § 1292(b) is met. See In re Trump, 874 F.3d at 952 (“‘[W]hen novel legal issues are presented, on which fair-minded jurists might reach contradictory conclusions, a novel issue may be certified for interlocutory appeal without first awaiting development of contradictory precedent.’”)
Defendants establish that they are entitled to relief under § 1292(b). The Court CERTIFIES the July 10 Order for interlocutory appeal.
B. The Court Will Not Stay Discovery Pending the Appeal Defendants ask the Court to stay discovery pending the interlocutory appeal. Plaintiffs strongly oppose the request. An order certifying an order for interlocutory appeal does not stay the case automatically; the district court must explicitly stay the case. See 28 U.S.C. § 1292(b). The decision to stay a case “rests within the sound discretion of the District Court.” Eberline, 2019 WL 989284, at *4 (quoting FTC v. E.M.A. Nationwide, Inc., 767 F.3d 611, 626-27 (6th Cir. 2014)). Defendants say that “allowing discovery to proceed [during the appeal] could significantly waste the parties (and the Court’s) time and resources.” Defendants are correct that allowing discovery to proceed could waste the parties’ and Court’s resources. However, on the flip side,
15

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staying discovery during the appeal could prejudice Plaintiffs if the Court of Appeals does not reverse this Court’s order and the case proceeds.
This case was filed in 2017. Discovery was stayed during previous appeals related to the Proclamation. Plaintiffs have not yet been able to engage in any discovery. Additional delay will prejudice Plaintiffs if the case survives an appeal. Moreover, based on Defendants’ assertions, it appears there may be multiple discovery disputes that the parties will have to brief, and the Court will have to decide. It does not make sense to further delay this process.
Because the prejudice Plaintiffs will suffer from a stay of discovery if this case proceeds after the appeal outweighs the prejudice Defendants will suffer absent a stay if resolution of the appeal ends this case, the Court exercises its discretion and declines Defendants’ request for a stay pending the interlocutory appeal. IV. CONCLUSION
Defendants’ Motion to Certify the July 10 Order for Interlocutory Appeal and to Stay Discovery Pending Appeal [ECF No. 140] is GRANTED IN PART and DENIED IN PART.
The Court CERTIFIES the July 10 Order for interlocutory appeal but declines to stay discovery pending appeal.
16

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IT IS ORDERED. Dated: November 1, 2019

S/ Victoria A. Roberts Victoria A. Roberts United States District Judge

17

 
 Case 2:17-cv-10C3a1s0e-:V1A9R-1-1S4DD DEoCcuFmNeon.t1: 1589-1filedFi1le1d/2: 61/11/926/2P0a1g9eID.P3a0g1e3: 1Page 1 of 3 (1 of 3)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: November 26, 2019

Ms. Miriam J. Aukerman Mr. Nabih H. Ayad Mr. H. Thomas Byron III Ms. Alyson Sandler

Re: Case No. 19-114, In re: Donald Trump, et al Originating Case No.: 2:17-cv-10310
Dear Counsel, The Court issued the enclosed Order today in this case.
Sincerely yours,

cc: Mr. Daniel S. Korobkin Ms. Natalie C. Qandah Mr. Joshua Paul Waldman Mr. David J. Weaver
Enclosure
No mandate to issue

s/Laura A. Jones Case Management Specialist Direct Dial No. 513-564-7023

Case 2:17-cv-10C3a1s0e-:V1A9R-1-1S4DD DEoCcuFmNeon.t1: 1589-2filedFi1le1d/2: 61/11/926/2P0a1g9eID.P3a0g1e4: 1Page 2 of 3 (2 of 3)

No. 19-0114
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED
Nov 26, 2019 DEBORAH S. HUNT, Clerk

In re: DONALD J. TRUMP, President of the

)

United States, et al.,

)

)

Petitioners.

)

O R D E R

Before: MOORE, SUTTON, and NALBANDIAN, Circuit Judges.
President Donald J. Trump, the Department of Homeland Security, and other government entities petition for leave to appeal the district court’s denial of their motion to dismiss Plaintiffs’ constitutional challenges to the President’s Proclamation No. 9645, 82 Fed. Reg. 45161 (Sept. 24, 2017), titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.” The district court certified its order for interlocutory appeal under 28 U.S.C. § 1292(b) but denied Defendants’ motion to stay discovery pending appeal. Defendants petition for leave to appeal and move to stay further proceedings in the district court, including discovery. Plaintiffs oppose the petition and the stay motion.
An appeal may “be taken from an order certified for interlocutory appeal if (1) the order involves a controlling question of law, (2) a substantial ground for difference of opinion exists regarding the correctness of the decision, and (3) an immediate appeal may materially advance the ultimate termination of the litigation.” In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002)

Case 2:17-cv-10C3a1s0e-:V1A9R-1-1S4DD DEoCcuFmNeon.t1: 1589-2filedFi1le1d/2: 61/11/926/2P0a1g9eID.P3a0g1e5: 2Page 3 of 3 (3 of 3) No. 19-0114 -2-
(citing 28 U.S.C. § 1292(b)). If the petition is granted, we may address any issue included within the certified order. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996).
The issue then is whether, in our discretion, we should permit an appeal so that this court can consider the merits of the district court’s order before the case proceeds. See In re: Trump, 874 F.3d 948, 950 (6th Cir. 2017) (order). Having considered the three factors that justify interlocutory appeal, as well as the practical and political consequences of this case, we conclude that an interlocutory appeal is warranted. We also find that a stay of further proceedings in the district court, including discovery, is appropriate.
The petition for permission to appeal and the motion for a stay are GRANTED. ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

 
 U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:17-cv-10310-VAR-SDD

Arab American Civil Rights League et al v. Donald Trump et al Assigned to: District Judge Victoria A. Roberts Referred to: Magistrate Judge Stephanie Dawkins DavisM Cause: No cause code entered

Date Filed: 01/31/2017 Date Terminated: 02/17/2021 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
Arab American Civil Rights League

represented by Helal A. Farhat Salamey and Farhat 6053 Chase Road Dearborn, MI 48126 313-945-5100 Fax: 313-945-5716 Email: hfarhat@saflegal.com ATTORNEY TO BE NOTICED

Jason C. Raofield Covington & Burling LLP 850 10th Street NW Washington, DC 20001 202-662-5072 Email: jraofield@cov.com TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED

Kassem M. Dakhlallah Hammoud, Dakhlallah & Associates PLLC 6050 Greenfield Road Suite 201 Dearborn, MI 48126 313-551-3038 Fax: 313-551-3136 Email: kd@hdalawgroup.com ATTORNEY TO BE NOTICED

Plaintiff Samir Almasmari TERMINATED: 03/16/2017
Plaintiff Sabah Almasmary TERMINATED: 03/16/2017

Mona Fadlallah P.O. Box 355 Dearborn Heights, MI 48127 313-339-1962 Email: MONA@VIDALAWPLLC.COM ATTORNEY TO BE NOTICED
Natalie C. Qandah Vida Law Group, PLLC 43050 Ford Road Suite 160 Canton, MI 48187 734-456-9004 Fax: 734-456-9003 Email: natalie@vidalawpllc.com ATTORNEY TO BE NOTICED
Nabih H. Ayad Ayad Law, P.L.L.C. 645 Griswold Street Suite 2202 Detroit, MI 48226 313-983-4600 Fax: 313-983-4665 Email: ayadlaw@hotmail.com ATTORNEY TO BE NOTICED
represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Nabih H. Ayad

Plaintiff Hana Almasmari TERMINATED: 03/16/2017
Plaintiff Atik Mounira TERMINATED: 03/16/2017
Plaintiff Walid Jammoul TERMINATED: 03/16/2017
Plaintiff Abubaker Abbass TERMINATED: 03/16/2017
Plaintiff

(See above for address) ATTORNEY TO BE NOTICED
represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED

Kokab Algazali TERMINATED: 03/16/2017
Plaintiff Naji Algahaim TERMINATED: 03/16/2017
Plaintiff Shaika Shagera TERMINATED: 03/16/2017
Plaintiff Hend Alshawaish
Plaintiff Yusra Alsoufi TERMINATED: 03/16/2017

represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED

Plaintiff Hasan Al-Ahmed TERMINATED: 03/16/2017
Plaintiff Sahla Al-Talaqani TERMINATED: 03/16/2017

Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Michael J. Steinberg 3145 Jeffries Hall 701 South State Street Ann Arbor, MI 48109 (734) 615-2407 Email: mjsteinb@umich.edu TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED
Miriam J. Aukerman American Civil Liberties Union of Michigan West Michigan Regional Office 1514 Wealth St., SE Grand Rapids, MI 49506 616-301-0930 Email: maukerman@aclumich.org ATTORNEY TO BE NOTICED
Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED

Plaintiff
Sofana Bella TERMINATED: 09/13/2018

Miriam J. Aukerman (See above for address) ATTORNEY TO BE NOTICED
Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578-6824 Fax: (313) 578-6811 Email: dkorobkin@aclumich.org ATTORNEY TO BE NOTICED
Margo Schlanger 625 So. State Street Suite LR910 Ann Arbor, MI 48109 734-615-2618 Email: margo.schlanger@gmail.com ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED
Miriam J. Aukerman (See above for address) ATTORNEY TO BE NOTICED
Nishchay H. Maskay Covington & Burling LLP 850 Tenth St., NW Washington, DC 20001 202-662-5747 Fax: 202-778-5747 Email: nmaskay@cov.com TERMINATED: 10/04/2019 ATTORNEY TO BE NOTICED

Plaintiff American Civil Liberties Union of Michigan
Plaintiff Mohamed Alshega TERMINATED: 09/13/2018
Plaintiff SA a minor child by Hilal Alkatteeb,

Jason C. Raofield (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Margo Schlanger (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED
Miriam J. Aukerman (See above for address) ATTORNEY TO BE NOTICED
Nishchay H. Maskay (See above for address) TERMINATED: 10/04/2019 ATTORNEY TO BE NOTICED
Jason C. Raofield (See above for address) ATTORNEY TO BE NOTICED
represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED

Parent and Next Friend TERMINATED: 09/13/2018
Plaintiff Hilal Alkatteeb TERMINATED: 09/13/2018

Margo Schlanger (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED
Miriam J. Aukerman (See above for address) ATTORNEY TO BE NOTICED
Nishchay H. Maskay (See above for address) TERMINATED: 10/04/2019 ATTORNEY TO BE NOTICED
Jason C. Raofield (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Margo Schlanger (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED
Miriam J. Aukerman (See above for address) ATTORNEY TO BE NOTICED
Nishchay H. Maskay (See above for address) TERMINATED: 10/04/2019 ATTORNEY TO BE NOTICED

Plaintiff Arab American & Chaldean Council
Plaintiff Adeeb Saleh TERMINATED: 09/13/2018

Jason C. Raofield (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Margo Schlanger (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED
Miriam J. Aukerman (See above for address) ATTORNEY TO BE NOTICED
Nishchay H. Maskay (See above for address) TERMINATED: 10/04/2019 ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Margo Schlanger (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED

Plaintiff Fahmi Jahaf
Plaintiff American Arab Chamber of Commerce
Plaintiff Arab American Studies Association

Miriam J. Aukerman (See above for address) ATTORNEY TO BE NOTICED
Nishchay H. Maskay (See above for address) TERMINATED: 10/04/2019 ATTORNEY TO BE NOTICED
Jason C. Raofield (See above for address) ATTORNEY TO BE NOTICED
represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
represented by Helal A. Farhat (See above for address) ATTORNEY TO BE NOTICED
Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED
Margo Schlanger (See above for address)

Plaintiff Salim Alshawish
Plaintiff Yousef Abdullah TERMINATED: 09/13/2018
Plaintiff Kaltum Saleh

ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/03/2019 ATTORNEY TO BE NOTICED
Miriam J. Aukerman (See above for address) ATTORNEY TO BE NOTICED
Nishchay H. Maskay (See above for address) TERMINATED: 10/04/2019 ATTORNEY TO BE NOTICED
Jason C. Raofield (See above for address) ATTORNEY TO BE NOTICED
represented by Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
represented by Jason C. Raofield (See above for address) TERMINATED: 03/24/2017 ATTORNEY TO BE NOTICED
Nabih H. Ayad (See above for address) ATTORNEY TO BE NOTICED
represented by Nishchay H. Maskay (See above for address) TERMINATED: 10/04/2019 ATTORNEY TO BE NOTICED

V. Defendant Donald Trump

Jason C. Raofield (See above for address) ATTORNEY TO BE NOTICED
represented by August E. Flentje U.S. Department of Justice Special Counsel Civil Division 950 Pennsylvania Avenue Room 3613 Washington, DC 20530 202-514-3309 Email: august.flentje@usdoj.gov ATTORNEY TO BE NOTICED
Briana Yuh United States Department of Justice Civil Division P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-532-4165 Fax: 202-305-7000 Email: Briana.Yuh@usdoj.gov TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Gisela Westwater U.S. Department of Justice Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-532-4174 Fax: 202-616-8962 Email: gisela.westwater@usdoj.gov TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press DOJ-Civ

Defendant Department of Homeland Security
Defendant

Office of Immigration Litigation District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-305-0106 Fax: 202-305-7000 Email: joshua.press@usdoj.gov ATTORNEY TO BE NOTICED
Katherine J. Shinners United States Department of Justice Office of Immigration Litigation P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-598-8259 Email: katherine.j.shinners@usdoj.gov ATTORNEY TO BE NOTICED
represented by August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Briana Yuh (See above for address) TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED

U.S. Customs and Border Protection
Defendant John Kelly
Defendant

represented by August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Briana Yuh (See above for address) TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED
represented by August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Briana Yuh (See above for address) TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED

Kevin McAleenan
Defendant United States Citizenship and Immigration Services
Defendant

represented by August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Briana Yuh (See above for address) TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED
represented by August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Briana Yuh (See above for address) TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED

United States Department of State
Defendant United States Department of Justice
Defendant

represented by August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Briana Yuh (See above for address) TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED
represented by August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Briana Yuh (See above for address) TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED

Office of the Director of National Intelligence
Defendant Lori Scialabba
Defendant

represented by August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Briana Yuh (See above for address) TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED
represented by August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Briana Yuh (See above for address) TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED

Rex W. Tillerson
Defendant Jefferson Sessions
Defendant

represented by August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Briana Yuh (See above for address) TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED
represented by August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Briana Yuh (See above for address) TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED

Michael B. Dempsey
Defendant United States of America
Defendant

represented by August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Briana Yuh (See above for address) TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED
represented by August E. Flentje (See above for address) ATTORNEY TO BE NOTICED
Briana Yuh (See above for address) TERMINATED: 10/02/2018 ATTORNEY TO BE NOTICED
Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Shinners (See above for address) ATTORNEY TO BE NOTICED

Kirstjen M. Nielsen Secretary of Homeland Security
Defendant L. Francis Cissna Director of USCIS
Defendant Michael R. Pompeo Secretary of State
Defendant Dan Coats Director of National Intelligence
Amicus The Fred T. Korematsu Center for Law and Equality

represented by Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
represented by Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
represented by Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
represented by Gisela Westwater (See above for address) TERMINATED: 09/07/2019 ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
represented by Robert A. Johnson Akin, Gump, 590 Madison Avenue 19th Floor

Amicus Asian Americans Advancing Justice
Amicus National Native American Bar Association
Amicus South Asian Bar Association of North America
Amicus Asian American Legal Defense and Education Fund
Amicus Hispanic National Bar Association
Amicus LatinoJustice PRLDEF, Inc.
Amicus National Asian Pacific American Bar Association
Amicus

New York, NY 10022-2524 212-872-1077 Fax: 212-407-3277 Email: rajohnson@akingump.com ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED

Michigan Asian Pacific American Bar Association Amicus National Bar Association
Amicus Jay Hirabayashi
Amicus Holly Yasui
Amicus Karen Korematsu
Amicus Former National Security Officials
Amicus Muslim Advocates

represented by Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by John Doroghazi Wiggin and Dana LLP One Century Tower P.O. Box 1832 265 Church Street New Haven, CT 06508-1832 203-498-4400 Fax: 203-782-2889 Email: jdoroghazi@wiggin.com ATTORNEY TO BE NOTICED
represented by Dina M. Hayes Arnold & Porter Kaye Scholer LLP 70 West Madison Street Suite 4200 Chicago, IL 60602 312-583-2394 Fax: 312-583-2553

Amicus American Muslim Health Professionals Amicus Muppies, Inc.
Amicus Network of Arab-American Professionals Amicus Bruce Ackerman
Amicus Janet Cooper Alexander
Amicus Stuart Banner
Amicus Erwin Chemerinsky

Email: dina.hayes@apks.com ATTORNEY TO BE NOTICED
represented by Dina M. Hayes (See above for address) ATTORNEY TO BE NOTICED
represented by Dina M. Hayes (See above for address) ATTORNEY TO BE NOTICED
represented by Dina M. Hayes (See above for address) ATTORNEY TO BE NOTICED
represented by Abram J. Ellis Simpson Thacher & Bartlett LLP 900 G Street, NW 9th Floor Washington, DC 20001 202-636-5500 Fax: 202-636-5502 Email: aellis@stblaw.com ATTORNEY TO BE NOTICED
represented by Abram J. Ellis (See above for address) ATTORNEY TO BE NOTICED
represented by Abram J. Ellis (See above for address) ATTORNEY TO BE NOTICED
represented by Abram J. Ellis (See above for address) ATTORNEY TO BE NOTICED

Amicus Gabriel J. Chin
Amicus Kristin Collins
Amicus Brandon L. Garrett
Amicus Geoffrey Hoffman
Amicus Catherine Y. Kim
Amicus Hiroshi Motomura
Amicus Burt Neuborne
Amicus Gene R. Nichol
Amicus

represented by Abram J. Ellis (See above for address) ATTORNEY TO BE NOTICED
represented by Abram J. Ellis (See above for address) ATTORNEY TO BE NOTICED
represented by Abram J. Ellis (See above for address) ATTORNEY TO BE NOTICED
represented by Abram J. Ellis (See above for address) ATTORNEY TO BE NOTICED
represented by Abram J. Ellis (See above for address) ATTORNEY TO BE NOTICED
represented by Abram J. Ellis (See above for address) ATTORNEY TO BE NOTICED
represented by Abram J. Ellis (See above for address) ATTORNEY TO BE NOTICED
represented by Abram J. Ellis (See above for address) ATTORNEY TO BE NOTICED

Judith Resnik
Amicus Jonathan Weinberg

represented by Abram J. Ellis (See above for address) ATTORNEY TO BE NOTICED
represented by Abram J. Ellis (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/31/2017
01/31/2017
01/31/2017
01/31/2017 01/31/2017 01/31/2017

# Docket Text
1 COMPLAINT filed by Arab American Civil Rights League against Donald Trump. Plaintiff requests summons issued. Receipt No: 06456068348 - Fee: $ 400. County of 1st Plaintiff: Wayne - County Where Action Arose: Wayne - County of 1st Defendant: Wayne. [Previously dismissed case: No] [Possible companion case(s): None] (Attachments: # 1 Exhibit) (Ayad, Nabih) (Entered: 01/31/2017)
NOTICE of Error directed to: Nabih H. Ayad re 1 Complaint,,. Parties listed on the initiating document were omitted. The filing attorney must use the docket event Addition of Parties to correct the error. [No Image Associated with this docket entry] (LHos) (Entered: 01/31/2017)
Addition of Parties to CM/ECF: Plaintiffs Samir Almasmari, Sabah Almasmary, Hana Almasmari, Atik Mounira, Walid Jammoul, Abubaker Abbass, Defendants Department of Homeland Security, U.S. Customs and Border Protection, John Kelly, Kevin McAleenan. Reason: The party was not added to CM/ECF when e-filing 1
Complaint,, Plaintiff requests summons issued. (Ayad, Nabih) (Entered: 01/31/2017)
2 SUMMONS Issued for *Department of Homeland Security, John Kelly, Kevin McAleenan, Donald Trump, U.S. Customs and Border Protection* (LHos) (Entered: 01/31/2017)
3 SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (LHos) (Entered: 01/31/2017)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to

02/02/2017 02/02/2017

a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (LHos) (Entered: 01/31/2017)
4 NOTICE of Appearance by Kassem M. Dakhlallah on behalf of Arab American Civil Rights League. (Dakhlallah, Kassem) (Entered: 02/02/2017)
5 Ex Parte MOTION for Temporary Restraining Order by All Plaintiffs. (Ayad, Nabih) (Entered: 02/02/2017)

02/02/2017 02/02/2017 02/02/2017 02/02/2017 02/03/2017
02/03/2017 02/03/2017

6 NOTICE of Appearance by Gisela Westwater on behalf of All Defendants. (Westwater, Gisela) (Entered: 02/02/2017)
7 NOTICE of Relevant Authority by All Defendants (Attachments: # 1
Memorandum from Counsel to the President) (Westwater, Gisela) Modified on 2/3/2017 (LHos). (Entered: 02/02/2017)
8 ORDER Regarding Plaintiffs' 5 Motion for Temporary Restraining Order. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 02/02/2017)
Minute Entry for proceedings before District Judge Victoria A. Roberts: Telephonic Status Conference held on 2/2/2017 (Court Reporter: Janice Coleman) (CPin) (Entered: 02/03/2017)
9 NOTICE of Appearance by Natalie C. Qandah on behalf of Arab American Civil Rights League. (Qandah, Natalie) Modified on 2/3/2017 (LHos).[DOCUMENT IS AN APPEARANCE FOR MONA FADLALLAH AND NATALIE QANDAH. ADVISED MS. FADLALLAH TO FILE AN APPEARANCE USING HER LOGIN] (Entered: 02/03/2017)
10 NOTICE of Appearance by Briana Yuh on behalf of All Defendants. (Yuh, Briana) (Entered: 02/03/2017)
11 ORDER Setting Briefing Schedule and Hearing on Motion for Temporary Restraining Order: Amended Complaint due by 2/5/17; Response due by 2/7/2017; Reply due by 2/9/2017; Motion Hearing set for 2/13/2017 at 9:00 AM before District Judge Victoria A. Roberts. Signed by District Judge Victoria A. Roberts. (see image for details and dates) (LVer) (Entered: 02/03/2017)

02/03/2017 02/05/2017 02/06/2017 02/06/2017
02/06/2017
02/07/2017 02/07/2017 02/07/2017 02/07/2017 02/07/2017

12 NOTICE of Appearance by Helal A. Farhat on behalf of All Plaintiffs. (Farhat, Helal) (Entered: 02/03/2017)

13 AMENDED COMPLAINT filed by All Plaintiffs against All Defendants. NEW PARTIES ADDED. (Ayad, Nabih) (Entered: 02/05/2017)

14 NOTICE of Appearance by Michael J. Steinberg on behalf of Hasan AlAhmed, Sahla Al-Talaqani. (Steinberg, Michael) (Entered: 02/06/2017)

15 MOTION to Amend/Correct 8 Order on Motion for TRO , MOTION for Order to Dissolve Injunction by All Defendants.

(Attachments: # 1 02/06/2017)

Proposed Order) (Yuh, Briana) (Entered:

Set Deadlines as to 15 MOTION to Dissolve Injunction and Amend Order Regarding Plaintiffs' Motion for Temporary Restraining Order. Response due 2/7/2017 by 5:00 pm. (LVer) (Entered: 02/06/2017)

16 NOTICE of Appearance by Mona Fadlallah on behalf of Arab American Civil Rights League. (Fadlallah, Mona) (Entered: 02/07/2017)

17 NOTICE of Appearance by Miriam J. Aukerman on behalf of Hasan Al-Ahmed, Sahla Al-Talaqani. (Aukerman, Miriam) (Entered: 02/07/2017)

18 STIPULATION re 11 Order Setting Hearing on Motion, by All Defendants (Yuh, Briana) (Entered: 02/07/2017)

19 ORDER Granting 18 Stipulation for One Day Enlargement of Time to File Response and Reply Briefs. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 02/07/2017)

20 RESPONSE to 15 MOTION to Amend/Correct 8 Order on Motion for TRO MOTION for Order to Dissolve Injunction filed by All

Plaintiffs. (Attachments: # 1 (Entered: 02/07/2017)

Exhibit Exhibit 1) (Ayad, Nabih)

02/08/2017 02/08/2017 02/08/2017 02/08/2017 02/08/2017 02/08/2017
02/09/2017 02/09/2017

21 MOTION for Extension of Time to File Response/Reply as to 20

Response to Motion to Dissolve Injunction by All Defendants. (Yuh, Briana) (Entered: 02/08/2017)

22 REPLY to Response re 15

MOTION to Amend/Correct 8

Order on Motion for TRO MOTION for Order to Dissolve Injunction filed by All Defendants. (Yuh, Briana) (Entered: 02/08/2017)
23 ORDER granting 21 Motion for Extension of Time to File

Response/Reply as to 20 Response to Motion to Dissolve Injunction Reply due by 10:00 AM 2/9/2017. Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 02/08/2017)
24 RESPONSE to 5 Ex Parte MOTION for Temporary Restraining Order filed by All Defendants. (Attachments: # 1 Exhibit 1) (Yuh, Briana) (Entered: 02/08/2017)
25 MOTION for Leave to File Excess Pages by All Defendants. (Yuh, Briana) (Entered: 02/08/2017)

26 ERRATA Sheet re: 24 Response to Motion filed by Donald Trump, John Kelly, Kevin McAleenan, U.S. Customs and Border Protection, Department of Homeland Security. by All Defendants (Attachments: # 1 Defendants' Amended Opposition to Plaintiffs' Request for a Preliminary Injunction, # 2 Exhibit 1) (Yuh, Briana) (Entered: 02/08/2017)
27 NOTICE of Appearance by Joshua S. Press on behalf of All Defendants. (Press, Joshua) (Entered: 02/09/2017)
28 NOTICE by All Plaintiffs of withdrawal of Motion for Temporary Restraining Order (Doc #5). (Ayad, Nabih) (Entered: 02/09/2017)

02/09/2017 02/09/2017

29 ORDER granting 25 Motion for Leave to File Excess Pages. Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 02/09/2017)
30 MOTION for Leave to File Brief of Amici Curiae by The Fred T. Korematsu Center for Law and Equality, Asian Americans Advancing

02/10/2017 02/10/2017
02/13/2017

Justice, National Native American Bar Association, South Asian Bar Association of North America. (Johnson, Robert) (Entered: 02/09/2017)
TEXT-ONLY ORDER/NOTICE: Motion Hearing on 2/13/2017at 9:00 AM is Cancelled (CPin) (Entered: 02/10/2017)
31 MOTION re 15 MOTION to Amend/Correct 8 Order on Motion for TRO MOTION for Order to Dissolve Injunction Status Update by All Defendants. (Yuh, Briana) (Entered: 02/10/2017)
32 ORDER granting 31 Motion to File a Status Update. Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 02/13/2017)

02/13/2017 02/14/2017 02/14/2017 02/20/2017
02/22/2017

33 NOTICE by All Defendants re 31

MOTION re 15

MOTION

to Amend/Correct 8 Order on Motion for TRO MOTION for Order to Dissolve Injunction Status Update (Yuh, Briana) (Entered: 02/13/2017)

34 ORDER Granting 30 Motion for Leave to File Amicus Brief. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 02/14/2017)

35 ORDER Requiring Response to Defendants' 33 Status Update. Signed by District Judge Victoria A. Roberts. (see image for details) (LVer) (Entered: 02/14/2017)

36 RESPONSE to 31

MOTION re 15

MOTION to

Amend/Correct 8 Order on Motion for TRO MOTION for Order to Dissolve Injunction Status Update filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit A, # 4 Exhibit Exhibit C, # 5 Exhibit Exhibit D, # 6 Exhibit Exhibit E, # 7 Exhibit Exhibit F, # 8 Exhibit Exhibit G, # 9 Exhibit Exhibit H, # 10 Exhibit Exhibit I, # 11 Exhibit Exhibit J) (Ayad, Nabih) (Entered: 02/20/2017)

37 EXHIBIT D Updated re 36 Response to Motion,, by All Plaintiffs (Ayad, Nabih) (Entered: 02/22/2017)

03/06/2017

38 NOTICE by All Plaintiffs PLAINTIFFS NOTICE OF INTENT TO FILE AMENDED COMPLAINT (Ayad, Nabih) (Entered: 03/06/2017)

03/06/2017 03/07/2017 03/16/2017 03/16/2017 03/16/2017
03/16/2017 03/16/2017

39 NOTICE by All Defendants OF ISSUANCE OF NEW EXECUTIVE ORDER (Attachments: # 1 Exhibit 1) (Press, Joshua) (Entered: 03/06/2017)
40 NOTICE of Appearance by Jason C. Raofield on behalf of Hasan AlAhmed, Sahla Al-Talaqani. (Raofield, Jason) (Entered: 03/07/2017)
41 AMENDED COMPLAINT (Second) filed by All Plaintiffs against All Defendants. NEW PARTIES ADDED. (Attachments: # 1 Exhibit Notice of Filing of Second Amended Complaint, # 2 Exhibit Declaration in Support of Second Amended Complaint) (Raofield, Jason) (Entered: 03/16/2017)
42 NOTICE of Voluntary Dismissal by All Plaintiffs as to Sahla AlTalaqani, Naji Algahaim, Kokab Algazali, Hana Almasmari, Samir Almasmari, Sabah Almasmary, Yusra Alsoufi, Walid Jammoul, Atik Mounira, Shaika Shagera, Abubaker Abbass and Hasan AlAhmed (Raofield, Jason) (Entered: 03/16/2017)
43 MOTION to Expedite Discovery by Abubaker Abbass, Yousef Abdullah, Hasan Al-Ahmed, Sahla Al-Talaqani, Naji Algahaim, Kokab Algazali, Hilal Alkatteeb, Hana Almasmari, Samir Almasmari, Sabah Almasmary, Hend Alshawaish, Salim Alshawish, Mohamed Alshega, Yusra Alsoufi, American Arab Chamber of Commerce, American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Civil Rights League, Arab American Studies Association, Sofana Bella, Fahmi Jahaf, Walid Jammoul, Atik Mounira, SA, Adeeb Saleh, Shaika Shagera. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A- Document Requests, # 3 Exhibit B- Interrogatories, # 4 Exhibit C- Declaration 1 of 2, # 5 Document Continuation CDeclaration 2 of 2) (Raofield, Jason) (Entered: 03/16/2017)
44 MOTION to Expedite Briefing by All Plaintiffs. (Raofield, Jason) (Entered: 03/16/2017)
45 NOTICE by All Plaintiffs Re: Motion to Dissolve Injunction (Raofield, Jason) (Entered: 03/16/2017)

03/16/2017

REQUEST for SUMMONS for All Defendants. (Raofield, Jason) (Entered: 03/16/2017)

03/16/2017 03/16/2017 03/17/2017 03/17/2017 03/17/2017 03/17/2017
03/17/2017 03/17/2017
03/17/2017 03/17/2017 03/20/2017

46 NOTICE of Appearance by Nishchay H. Maskay on behalf of Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American Studies Association, Sofana Bella, SA, Adeeb Saleh. (Maskay, Nishchay) (Entered: 03/16/2017)
47 NOTICE of Appearance by Daniel S. Korobkin on behalf of Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American Studies Association, Sofana Bella, SA, Adeeb Saleh. (Korobkin, Daniel) (Entered: 03/16/2017)
48 SUMMONS Issued for * All Defendants * (LHos) (Entered: 03/17/2017)
49 SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (LHos) (Entered: 03/17/2017)
50 NOTICE of Appearance by Nabih H. Ayad on behalf of Yousef Abdullah, Hend Alshawaish, Salim Alshawish, Mohamed Alshega, Arab American Civil Rights League, Fahmi Jahaf. (Ayad, Nabih) (Entered: 03/17/2017)
51 ATTORNEY APPEARANCE: Miriam J. Aukerman appearing on behalf of Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American Studies Association, Sofana Bella, SA, Adeeb Saleh Hilal Alkatteeb and S.A., a minor through her Parent and Next Friend, Hilal Alkatteeb (Aukerman, Miriam) (Entered: 03/17/2017)
52 NOTICE of Appearance by Helal A. Farhat on behalf of American Arab Chamber of Commerce. (Farhat, Helal) (Entered: 03/17/2017)
53 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by American Arab Chamber of Commerce, American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Civil Rights League, Arab American Studies Association (Raofield, Jason) (Entered: 03/17/2017)
54 Joint MOTION for Leave to File Excess Pages by All Plaintiffs. (Raofield, Jason) (Entered: 03/17/2017)
55 ORDER Granting 54 Motion for Leave to File Excess Pages. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 03/17/2017)
56 NOTICE of Appearance by Michael J. Steinberg on behalf of Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American Studies Association, Sofana Bella, SA, Adeeb Saleh. (Steinberg, Michael) (Entered: 03/20/2017)

03/20/2017

57 Renewed MOTION to Vacate Permanent Injunction by All Defendants. (Attachments: # 1 Proposed Order) (Yuh, Briana) (Entered: 03/20/2017)

03/21/2017 03/21/2017

58 ORDER Deeming Moot 57

Defendant's Motion to Vacate

Injunction and 15 Motion To Dissolve Injunction. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 03/21/2017)

59 ORDER Granting In Part 44 Plaintiffs' Motion to Expedite Briefing. Signed by District Judge Victoria A. Roberts. (see image for details and dates) (LVer) (Entered: 03/21/2017)

03/24/2017 03/24/2017 03/27/2017
03/30/2017 03/30/2017 03/30/2017 03/30/2017

60 RESPONSE to 43 MOTION to Expedite Discovery (opposition) filed by All Defendants. (Yuh, Briana) (Entered: 03/24/2017)
62 STIPULATED ORDER. Signed by District Judge Victoria A. Roberts. (LHos) (Entered: 03/27/2017)
61 REPLY to Response re 43 MOTION to Expedite Discovery filed by Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American Studies Association, Sofana Bella, SA, Adeeb Saleh. (Raofield, Jason) (Entered: 03/27/2017)
63 NOTICE of Appearance by Michael J. Steinberg on behalf of Arab American & Chaldean Council. (Steinberg, Michael) (Entered: 03/30/2017)
64 NOTICE of Appearance by Miriam J. Aukerman on behalf of Arab American & Chaldean Council. (Aukerman, Miriam) (Entered: 03/30/2017)
65 NOTICE of Appearance by Daniel S. Korobkin on behalf of Arab American & Chaldean Council. (Korobkin, Daniel) (Entered: 03/30/2017)
66 NOTICE of Appearance by Jason C. Raofield on behalf of Arab American & Chaldean Council. (Raofield, Jason) (Entered: 03/30/2017)

03/30/2017
03/31/2017 03/31/2017
04/05/2017
04/11/2017 04/12/2017 04/13/2017 04/13/2017 04/13/2017 04/14/2017 04/14/2017 04/17/2017

67 Joint MOTION for Extension of Time to File Answer re 41
Amended Complaint, by All Defendants. (Press, Joshua) (Entered: 03/30/2017)
68 ORDER Granting 67 Stipulated Motion for Fourteen Day Extension of Time for Defendants to Answer or File Response. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 03/31/2017)
69 ORDER Denying Without Prejudice 43 Plaintiffs' Motion for Expedited Discovery. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 03/31/2017)
Set Deadlines/Hearings: TELEPHONIC Status Conference set for 4/13/2017 at 2:30 PM before District Judge Victoria A. Roberts. Plaintiffs' Counsel MUST initiate the call. (LVer) (Entered: 04/05/2017)
70 NOTICE of Appearance by Nabih H. Ayad on behalf of American Arab Chamber of Commerce. (Ayad, Nabih) (Entered: 04/11/2017)
71 Joint MOTION for Leave to File Excess Pages re Motion to Dismiss Briefing by All Defendants. (Attachments: # 1 Exhibit Proposed Order) (Press, Joshua) (Entered: 04/12/2017)
72 NOTICE by All Defendants of withdrawal of 71 Joint MOTION for Leave to File Excess Pages re Motion to Dismiss Briefing . (Press, Joshua) (Entered: 04/13/2017)
73 ORDER Granting Page Extension. Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 04/13/2017)
Minute Entry for proceedings before District Judge Victoria A. Roberts: Telephonic Status Conference held on 4/13/2017 (Court Reporter: Janice Coleman) (CPin) (Entered: 04/13/2017)
74 Joint MOTION for Leave to File Excess Pages in Motion to Dismiss Briefing by All Defendants. (Attachments: # 1 Exhibit) (Press, Joshua) (Entered: 04/14/2017)
75 ORDER granting 74 Motion for Leave to File Excess Pages. Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 04/14/2017)
76 MOTION to Dismiss by All Defendants. (Press, Joshua) (Entered: 04/17/2017)

04/17/2017
04/21/2017
04/24/2017 04/24/2017 04/28/2017 04/28/2017 05/01/2017 05/03/2017 05/05/2017

77 MOTION TO EXTEND Time for Issuance of a Scheduling Order under Rule 16(b) by Michael B. Dempsey, Department of Homeland Security, John Kelly, Kevin McAleenan, Office of the Director of National Intelligence, Lori Scialabba, Jefferson Sessions, Rex W. Tillerson, Donald Trump, U.S. Customs and Border Protection, United States Citizenship and Immigration Services, United States Department of Justice, United States Department of State, United States of America. (Attachments: # 1 Exhibit Proposed Order) (Press, Joshua) (Entered: 04/17/2017)
78 RESPONSE to 77 MOTION TO EXTEND Time for Issuance of a Scheduling Order under Rule 16(b) filed by All Plaintiffs.
(Attachments: # 1 Index of Exhibits, # 2 Exhibit A (Plaintiffs' First
Set of Document Requests to Defendants), # 3 Exhibit B (Plaintiffs' First Set of Interrogatories to Defendants)) (Raofield, Jason) (Entered: 04/21/2017)
79 (ERROR - DOCUMENT FILED ON WRONG CASE) NOTICE TO APPEAR: Scheduling Conference set for 6/1/2017 04:00 PM before District Judge Victoria A. Roberts See Notice for Details (CPin) Modified on 4/24/2017 (CPin). (Entered: 04/24/2017)
80 NOTICE of Correction re 79 Notice to Appear. FILED ON WRONG CASE (CPin) (Entered: 04/24/2017)
81 NOTICE of Appearance by Katherine J. Shinners on behalf of All Defendants. (Shinners, Katherine) (Entered: 04/28/2017)
82 REPLY to Response re 77 MOTION TO EXTEND Time for Issuance of a Scheduling Order under Rule 16(b) filed by All Defendants. (Press, Joshua) (Entered: 04/28/2017)
83 CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney on behalf of All Defendants. (Raofield, Jason) (Entered: 05/01/2017)
84 Joint MOTION for Leave to File Excess Pages in Motion to Dismiss Briefing by Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Sofana Bella, SA, Adeeb Saleh. (Raofield, Jason) (Entered: 05/03/2017)
85 ORDER granting 84 Motion for Leave to File Excess Pages. Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 05/05/2017)

05/08/2017 05/09/2017
05/09/2017 05/11/2017 05/18/2017
05/19/2017 05/19/2017 05/19/2017 05/19/2017

86 RESPONSE to 76 MOTION to Dismiss on behalf of all Plaintiffs filed by Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Sofana Bella, SA, Adeeb Saleh. (Raofield, Jason) (Entered: 05/08/2017)
87 NOTICE by Yousef Abdullah, Hend Alshawaish, Salim Alshawish, Mohamed Alshega, American Arab Chamber of Commerce, Arab
American Civil Rights League, Fahmi Jahaf re 86 Response to Motion, Joining Opposition to Defendants' Motion to Dismiss (Ayad, Nabih) (Entered: 05/09/2017)
88 ATTORNEY APPEARANCE: Margo Schlanger appearing on behalf of Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Sofana Bella, SA, Adeeb Saleh (Schlanger, Margo) (Entered: 05/09/2017)
89 ORDER Denying 77 Motion to Extend Time for Issuance of a Scheduling Order. Signed by District Judge Victoria A. Roberts. (see image for details and dates) (LVer) (Entered: 05/11/2017)
90 MOTION for Leave to File Brief of Amici Curiae by Asian Americans Advancing Justice, South Asian Bar Association of North America, The Fred T. Korematsu Center for Law and Equality, Asian American Legal Defense and Education Fund, Hispanic National Bar Association, LatinoJustice PRLDEF, Inc., National Asian Pacific American Bar Association, Michigan Asian Pacific American Bar Association, National Bar Association, Jay Hirabayashi, Holly Yasui, Karen Korematsu. (Johnson, Robert) (Entered: 05/18/2017)
91 ORDER Granting 90 Motion for Leave to File Brief of Amici Curiae. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 05/19/2017)
92 NOTICE of Appearance by John Doroghazi on behalf of Former National Security Officials. (Doroghazi, John) (Entered: 05/19/2017)
93 MOTION for Leave to File Amicus Curiae Brief by Former National Security Officials. (Doroghazi, John) (Entered: 05/19/2017)
94 SUPPLEMENTAL BRIEF re 93 MOTION for Leave to File Amicus Curiae Brief filed by Former National Security Officials. (Doroghazi, John) (Entered: 05/19/2017)

05/19/2017 05/19/2017 05/22/2017 05/22/2017

95 MOTION for Leave to File Brief and Supporting Declaration as Amici Curiae by Muslim Advocates, American Muslim Health Professionals, Muppies, Inc., Network of Arab-American Professionals. (Attachments: # 1 Exhibit Proposed Brief of Amici Curiae) (Hayes, Dina) (Entered: 05/19/2017)
96 DECLARATION by Lila Abu-Lughod re 95 MOTION for Leave to File Brief and Supporting Declaration as Amici Curiae filed by American Muslim Health Professionals, Muppies, Inc., Muslim Advocates, Network of Arab-American Professionals (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 CV of Lila Abu-Lughod, # 3 Exhibit 2 Chapter 4 Do Arab Women Need Saving, # 4 Exhibit 3 The Cross Publics of Ethnography) (Hayes, Dina) (Entered: 05/19/2017)
97 MOTION for Leave to File Brief of Constitutional Law Professors as Amici Curiae in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss by Bruce Ackerman, Janet Cooper Alexander, Stuart Banner, Erwin Chemerinsky, Gabriel J. Chin, Kristin Collins, Brandon L. Garrett, Geoffrey Hoffman, Catherine Y. Kim, Hiroshi Motomura, Burt Neuborne, Gene R. Nichol, Judith Resnik, Jonathan Weinberg. (Attachments: # 1 Exhibit Proposed Brief of Amici Curiae) (Ellis, Abram) (Entered: 05/22/2017)
98 REPLY to Response re 76 MOTION to Dismiss filed by All Defendants. (Press, Joshua) (Entered: 05/22/2017)

05/23/2017 05/23/2017 05/23/2017

TEXT-ONLY ORDER Granting Motion: 93 MOTION for Leave to File Amicus Curiae Brief filed by Former National Security Officials. Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 05/23/2017)
TEXT-ONLY ORDER Granting Motion: 95 MOTION for Leave to File Brief and Supporting Declaration as Amici Curiae filed by Network of Arab-American Professionals, American Muslim Health Professionals, Muslim Advocates, Muppies, Inc.. Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 05/23/2017)
TEXT-ONLY ORDER Granting Motion: 97 MOTION for Leave to File Brief of Constitutional Law Professors as Amici Curiae in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss filed by Brandon L. Garrett, Stuart Banner, Janet Cooper Alexander, Geoffrey Hoffman, Jonathan Weinberg, Bruce Ackerman, Catherine Y. Kim, Kristin Collins, Burt Neuborne, Gabriel J. Chin, Judith Resnik, Gene R.

Nichol, Hiroshi Motomura, Erwin Chemerinsky. Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 05/23/2017)

05/23/2017

99 SUPPLEMENTAL BRIEF re 95 MOTION for Leave to File Brief and Supporting Declaration as Amici Curiae filed by American Muslim Health Professionals, Muppies, Inc., Muslim Advocates, Network of Arab-American Professionals. (Hayes, Dina) (Entered: 05/23/2017)

05/23/2017
05/23/2017 05/24/2017 05/25/2017

100 DECLARATION by Lila Abu-Lughod re 99 Supplemental Brief, Brief of Amici Curiae in Opposition to Defedants' Motion to Dismiss filed by American Muslim Health Professionals, Muppies, Inc., Muslim Advocates, Network of Arab-American Professionals (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 CV of Lila Abu-Lughod, # 3 Exhibit 2 Do Muslim Women Need Saving Excerpt, # 4 Exhibit 3 The Cross-Publics of Ethnography, by Lila Abu-Lughod) (Hayes, Dina) (Entered: 05/23/2017)
101 Amicus Curiae BRIEF by Bruce Ackerman, Janet Cooper Alexander, Stuart Banner, Erwin Chemerinsky, Gabriel J. Chin, Kristin Collins, Brandon L. Garrett, Geoffrey Hoffman, Catherine Y. Kim, Hiroshi Motomura, Burt Neuborne, Gene R. Nichol, Judith Resnik, Jonathan Weinberg (Ellis, Abram) (Entered: 05/23/2017)
102 Ex Parte MOTION for Leave to File Excess Pages by Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Sofana Bella, SA, Adeeb Saleh. (Maskay, Nishchay) (Entered: 05/24/2017)
103 ORDER granting 102 Motion for Leave to File Excess Pages. Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 05/25/2017)

05/26/2017

104 MOTION to Compel Production of Documents by Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Sofana Bella,

05/30/2017 05/31/2017

SA, Adeeb Saleh. (Attachments: # 1 Declaration of Jason Raofield (and Exhibits thereto)) (Raofield, Jason) (Entered: 05/26/2017)
Set Deadlines as to 76 MOTION to Dismiss. Motion Hearing set for 6/6/2017 at 10:00 AM before District Judge Victoria A. Roberts. (LVer) (Entered: 05/30/2017)
105 MOTION to Stay Pending Supreme Court Review by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 - Order in IRAP, # 3 Exhibit 2 - Order in Sarsour, # 4 Exhibit 3 - Order in State of

Hawai'i, # 5 Exhibit 4 - Order in PARS Equality, # 6 Exhibit 5 - Order in Univeral Muslim, # 7 Exhibit 6 - Order in Doe, # 8 Text of Proposed Order) (Shinners, Katherine) (Entered: 05/31/2017)
05/31/2017 106 ORDER. Signed by District Judge Victoria A. Roberts. (see image for details and dates) (LVer) (Entered: 05/31/2017)

06/01/2017

107 MOTION to Reschedule Hearing on Motion to Dismiss re Set Motion and R&R Deadlines/Hearings by All Defendants. (Attachments: # 1 Text of Proposed Order) (Shinners, Katherine) (Entered: 06/01/2017)

06/01/2017

108 RESPONSE to 107 MOTION to Reschedule Hearing on Motion to Dismiss re Set Motion and R&R Deadlines/Hearings filed by Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Sofana Bella, SA, Adeeb Saleh. (Raofield, Jason) (Entered: 06/01/2017)

06/01/2017

109 ORDER Granting Defendants' Motion to Reschedule Hearing as to 76 MOTION to Dismiss ( Motion Hearing reset for 6/13/2017 09:00 AM before District Judge Victoria A. Roberts) Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 06/01/2017)

06/02/2017

110 RESPONSE to 105 MOTION to Stay Pending Supreme Court Review filed by Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Sofana Bella, SA, Adeeb Saleh. (Attachments: # 1 Declaration of Jason Raofield and Exhibits Thereto) (Raofield, Jason) (Entered: 06/02/2017)

06/05/2017

111 RESPONSE to 104 MOTION to Compel Production of Documents filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 - Objections, # 3 Exhibit 2 - Law Review Note, Presidents and Ex-Presidents as Witnesses, # 4 Exhibit 3 - IRAP, Petition for a Writ of Certiorari, # 5 Exhibit 4 - IRAP, Order on Response to Petition for Certiorari) (Shinners, Katherine) (Entered: 06/05/2017)

06/06/2017

112 REPLY to Response re 105 MOTION to Stay Pending Supreme Court Review filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 7 - Petition for Writ of Certiorari, # 3 Exhibit 8 Application for Stay to S.Ct., # 4 Exhibit 9 - Order on Response to Petition for Writ of Certiorari) (Shinners, Katherine) (Entered: 06/06/2017)

06/08/2017 113 NOTICE of Appearance by August E. Flentje on behalf of All Defendants. (Flentje, August) (Entered: 06/08/2017)

06/09/2017

114 Order Granting Defendants' Motion 105 for Stay Pending Supreme Court Proceedings. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 06/09/2017)

06/09/2017

TEXT-ONLY NOTICE: Motion Hearing on 6/13/17 is Cancelled. (LVer) (Entered: 06/09/2017)

07/06/2017 115 DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) (Maskay, Nishchay) (Entered: 07/06/2017)

10/20/2017
10/24/2017 11/06/2017

116 Joint MOTION Set Schedule for Filing of Joint Statement Pursuant to Court's Order of June 9, 2017 by Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Sofana Bella, SA, Adeeb Saleh. (Maskay, Nishchay) (Entered: 10/20/2017)
117 ORDER Granting 116 Motion. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 10/24/2017)
118 Joint MOTION for Clarification re 117 Order on Motion - Free by Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Sofana Bella, SA, Adeeb Saleh. (Maskay, Nishchay) (Entered: 11/06/2017)

11/16/2017 119 ORDER: (1) Granting Joint Motion 118 for Clarification; (2) Allowing Plaintiffs to File A Third Amended Complaint; and (3) Deeming Moot

Defendants' Motion 76 to Dismiss and Plaintiffs' Motion 104 to Compel Production of Documents. Signed by District Judge Victoria A. Roberts. (see image for details and dates) (LVer) (Entered: 11/16/2017)

12/06/2017 120 Joint MOTION TO EXTEND Deadlines Set in Court's Order of

November 16, 2017 re 119 Order on Motion to Dismiss, Order on Motion to Compel, Order on Motion - Free,,, by Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Sofana Bella, SA, Adeeb Saleh. (Maskay, Nishchay) (Entered: 12/06/2017)

12/07/2017

121 Stipulated Order Granting 120 Motion to Extend the Deadlines. Signed by District Judge Victoria A. Roberts. (see image for details and dates) (LVer) (Entered: 12/07/2017)

07/23/2018

122 MOTION Unopposed Motion for Extension of Deadlines Set in Court's Order of December 7, 2017 by Hilal Alkatteeb, American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Sofana Bella, SA, Adeeb Saleh. (Maskay, Nishchay) (Entered: 07/23/2018)

07/24/2018

123 ORDER granting 122 Unopposed Motion Extending Deadlines. Signed by District Judge Victoria A. Roberts. (CPin) (Entered: 07/24/2018)

09/13/2018

124 AMENDED COMPLAINT (Third) filed by Arab American & Chaldean Council, Arab American Studies Association, American Civil Liberties Union of Michigan, Kaltum Saleh against Department of Homeland Security, Kevin McAleenan, Office of the Director of National Intelligence, Jefferson Sessions, Donald Trump, U.S. Customs and Border Protection, United States Citizenship and Immigration Services, United States Department of Justice, United States Department of State, United States of America, Kirstjen M. Nielsen, L. Francis Cissna, Michael R. Pompeo, Dan Coats. NEW PARTIES ADDED. (Attachments: # 1 Notice of Filing of Third Amended Complaint, # 2 Declaration in Support of Third Amended Complaint) (Raofield, Jason) (Entered: 09/13/2018)

09/13/2018

125 NOTICE of Voluntary Dismissal by Hilal Alkatteeb, Sofana Bella, SA, Adeeb Saleh as to Mohamed Alshega, Sofana Bella, SA (a minor child by Hilal Alkatteeb, Parent and Next Friend), Adeeb Saleh, Yousef Abdullah and Hilal Alkatteeb (Raofield, Jason) (Entered: 09/13/2018)

09/27/2018 126 MOTION for Withdrawal of Attorney Briana Yuh by All Defendants. (Yuh, Briana) (Entered: 09/27/2018)

10/02/2018 10/15/2018

127 Order Granting 126 MOTION for Withdrawal of Attorney Briana Yuh. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 10/02/2018)
128 MOTION to Dismiss Plaintiffs' Third Amended Complaint by All Defendants. (Press, Joshua) (Entered: 10/15/2018)

10/25/2018 129 MOTION TO EXTEND TIME TO FILE RESPONSE TO MOTION

TO DISMISS AND REPLY BRIEF re 128 MOTION to Dismiss Plaintiffs' Third Amended Complaint by American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Kaltum Saleh. (Raofield, Jason) (Entered: 10/25/2018)

10/29/2018

130 Stipulated Order Granting 129 Extension of Time. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 10/29/2018)

11/19/2018

131 RESPONSE to 128 MOTION to Dismiss Plaintiffs' Third Amended Complaint filed by American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Kaltum Saleh. (Maskay, Nishchay) (Entered: 11/19/2018)

12/17/2018

132 REPLY to Response re 128 MOTION to Dismiss Plaintiffs' Third Amended Complaint filed by All Defendants. (Press, Joshua) (Entered: 12/17/2018)

05/06/2019 133 NOTICE by American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association,

Kaltum Saleh re 131 Response to Motion, Notice of Supplemental Authority (Attachments: # 1 Exhibit Opinion in IRAP v. Trump) (Maskay, Nishchay) (Entered: 05/06/2019)

05/20/2019

134 NOTICE by All Defendants re 133 Notice (Other), of Plaintiffs' Notice of Supplemental Authority (Press, Joshua) (Entered: 05/20/2019)

05/24/2019 135 NOTICE by American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association,
Kaltum Saleh re 134 Notice (Other), 133 Notice (Other), Reply to Defendants' Response to Plaintiffs' Notice of Supplemental Authority in Support of Their Opposition to Defendants' Motion to Dismiss (Maskay, Nishchay) [WRONG EVENT USED DOCUMENT IS A REPLY] Modified on 5/24/2019 (NAhm). (Entered: 05/24/2019)

06/09/2019

137 ORDER STRIKING 136 Consent of Substitution of Attorneys filed by American Arab Chamber of Commerce. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 06/09/2019)

07/10/2019

138 ORDER Denying 128 Defendants' Motion to Dismiss Plaintiffs' Third Amended Complaint. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 07/10/2019)

07/17/2019

139 MOTION for Order Reinstating Fully-Briefed Motion to Compel and Requiring Responses to Outstanding Discovery Requests by American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Kaltum Saleh. (Raofield, Jason) (Entered: 07/17/2019)

07/23/2019 140 MOTION for Leave to Appeal And for a Stay of Discovery Pending Appeal by All Defendants. (Press, Joshua) (Entered: 07/23/2019)

07/24/2019

141 Joint MOTION for Extension of Time to File Answer by All Defendants. (Attachments: # 1 Proposed Order) (Press, Joshua) (Entered: 07/24/2019)

07/25/2019 07/31/2019 07/31/2019

142 ORDER Granting 141 Joint MOTION for Extension of Time For Defendants' to Answer Plaintiffs' Third Amended Complaint until 7/31/19. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 07/25/2019)
143 RESPONSE to 139 MOTION for Order Reinstating Fully-Briefed Motion to Compel and Requiring Responses to Outstanding Discovery Requests filed by All Defendants. (Press, Joshua) (Entered: 07/31/2019)
144 ANSWER to Amended Complaint with Affirmative Defenses by All Defendants. (Press, Joshua) (Entered: 07/31/2019)

08/06/2019

145 RESPONSE to 140 MOTION for Leave to Appeal And for a Stay of Discovery Pending Appeal filed by American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Kaltum Saleh. (Maskay, Nishchay) (Entered: 08/06/2019)

08/06/2019

146 REPLY to Response re 139 MOTION for Order Reinstating FullyBriefed Motion to Compel and Requiring Responses to Outstanding Discovery Requests filed by American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association, Kaltum Saleh. (Maskay, Nishchay) (Entered: 08/06/2019)

08/13/2019

147 REPLY to Response re 140 MOTION for Leave to Appeal And for a Stay of Discovery Pending Appeal filed by All Defendants. (Press, Joshua) (Entered: 08/13/2019)

08/21/2019 08/23/2019

148 NOTICE by All Defendants re 140 MOTION for Leave to Appeal And for a Stay of Discovery Pending Appeal of Supplemental Authority (Attachments: # 1 Exhibit 1) (Press, Joshua) (Entered: 08/21/2019)
149 NOTICE by American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association,

08/29/2019

Kaltum Saleh re 148 Notice (Other) Response to Defendants' Notice of Supplemental Authority (Raofield, Jason) (Entered: 08/23/2019)
150 MOTION for Withdrawal of Attorney Gisela A Westwater by All Defendants. (Attachments: # 1 Exhibit Westwater Declaration) (Westwater, Gisela) (Entered: 08/29/2019)

09/03/2019

151 STIPULATION AND ORDER Allowing Michael J. Steinberg to Withdraw as Co-Counsel. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 09/03/2019)

09/07/2019

152 ORDER Granting 150 Motion for Gisela A. Westwater's Withdraw As Counsel. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 09/07/2019)

09/12/2019

153 NOTICE by All Defendants re 140 MOTION for Leave to Appeal And for a Stay of Discovery Pending Appeal (Attachments: # 1 Exhibit 1) (Press, Joshua) (Entered: 09/12/2019)

09/13/2019 154 NOTICE by American Civil Liberties Union of Michigan, Arab American & Chaldean Council, Arab American Studies Association,

Kaltum Saleh re 153 Notice (Other) (Response to Defendants' Second Notice of Supplemental Authority) (Maskay, Nishchay) (Entered: 09/13/2019)

10/04/2019

155 STIPULATION AND ORDER Allowing Nishchay H. Maskay to Withdraw As Co-Counsel. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 10/04/2019)

11/01/2019

156 ORDER: (1) Denying 139 Plaintiffs' Motion for Order Reinstating Fully-Briefed Motion to Compel and Requiring Responses to Outstanding Discovery Requests; and (2) Notice to Appear for Scheduling Conference. Scheduling Conference set for 12/12/2019 at 9:00 AM before District Judge Victoria A. Roberts. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 11/01/2019)

11/01/2019

157 ORDER: (1) Granting In Part and Denying In Part 140 Defendants' Motion to Certify July 10, 2019 Order for Interlocutory Appeal and to Stay Discovery Pending Appeal; (2) Certifying July 10, 2019 Order for Interlocutory Appeal; and (3) Declining to Stay Discovery Pending Appeal. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 11/01/2019)

11/26/2019

158 STIPULATED ORDER Holding Current Deadlines in Abeyance. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 11/26/2019)

11/26/2019 159 ORDER from U.S. Court of Appeals - Sixth Circuit [Appeal Case Number 19-114] (SKra) (Entered: 11/26/2019)

02/10/2021 160 ORDER from U.S. Court of Appeals - Sixth Circuit [Appeal Case Number 19-2375] (SKra) (Entered: 02/10/2021)

02/17/2021 161 Order Dismissing Plaintiffs' Claims Without Prejudice As Moot. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 02/17/2021)

03/11/2021 162 ORDER from U.S. Court of Appeals - Sixth Circuit [Appeal Case Number 19-2375] (SKra) (Entered: 03/11/2021)

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Docket Report

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