UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MAZDAK POURABDOLLAH TOOTKABONI and ARGHAVAN LOUHGHALAM,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WILLIAM MOHALLEY, Boston Field Director, CBP,
Respondents.

Case No. 17-cv-10154 Date: January 28, 2017

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

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INTRODUCTION Petitioners Mazdak Pourabdollah Tootkaboni and Arghavan Louhghalam, two lawful permanent residents of United States, are being unlawfully held at Logan Airport as a consequence of an Executive Order recently issued by President Donald Trump. Both Petitioners are associate professors at the University of Massachusetts-Dartmouth, Iranian nationals, and Muslims. Both Petitioners landed at Logan at approximately 5:30 p.m. on January 28, 2017, and, on information and belief, have been detained since then. They were returning from an academic conference and was outside the United States for fewer than 180 days. As lawful permanent residents, and as set forth in detail below, Petitioners have a constitutional right to return home to the United States after a brief trip abroad, and cannot be deprived of their lawful permanent status without justification and due process protections. Even though Petitioners were returning home to the United States as lawful permanent residents, U.S. Customs and Border Protection (“CBP”) blocked them from exiting Logan and detained them therein. No magistrate has determined that there is sufficient justification for the continued detention of Petitioners. Instead, CBP is holding them at Logan solely pursuant to an executive order issued by President Donald Trump on January 27, 2017. Because the executive order is unlawful as applied to Petitioners, their continued detention based solely on the executive order violates his Fifth Amendment procedural and substantive due process rights, violates the First Amendment Establishment Clause, is ultra vires under the immigration statutes, and violates the Administrative Procedure Act and Religious Freedom Restoration Act. Further, Petitioners’ continued unlawful detention is part of a widespread policy,
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pattern, and practice applied to many refugees and arriving aliens detained after the issuance of the January 27, 2017 executive order. Therefore, Petitioners respectfully apply to this Court for a writ of habeas corpus to remedy his unlawful detention by Respondents, and for declaratory and injunctive relief to prevent such harms from recurring.
JURISDICTION AND VENUE 1. This Court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1361, 2241, 2243, and the Habeas Corpus Suspension Clause of the U.S. Constitution. This court has further remedial authority pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. 2. Venue properly lies within the District of Massachusetts because a substantial part of the events or omissions giving rise to this action occurred in the District. 28 U.S.C. § 1391(b). 3. No petition for habeas corpus has previously been filed in any court to review Petitioner’s case.
PARTIES 4. Petitioner Tootkaboni is an Iranian national and a lawful permanent resident of the United States. He is an Associate Professor at the University of Massachusetts-Dartmouth. 5. Petitioner Louhghalam is an Iranian national and a lawful permanent resident of the United States. She is an Associate Professor at the University of Massachusetts-Dartmouth. 6. 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.
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7. 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.
8. Respondent John Kelly is the Secretary of DHS. Secretary Kelly has immediate custody of Petitioners and other members of the proposed class. He is sued in his official capacity.
9. Respondent Kevin K. McAleenan is the Acting Commissioner of CBP. Acting Commissioner McAleenan has immediate custody of Petitioners and other members of the proposed class. He is sued in his official capacity.
10. Respondent James T. Madden is the Director of the New York Field Office of CBP, which has immediate custody of Petitioners and other members of the proposed class. He is sued in his official capacity.
11. Respondent Donald Trump is the President of the United States. He is sued in his official capacity.
STATEMENT OF FACTS President Trump’s January 27, 2017 Executive Order
12. 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.
13. 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.”
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14. 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.
15. 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 “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.
16. 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.
17. 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. Petitioner Tootkaboni
18. Petitioner Tootkaboni is an Iranian national and a lawful permanent resident of the United States.
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19. Petitioner Tootkaboni is Muslim. 20. Petitioner Tootkaboni joined the Department of Civil Engineering at the Johns Hopkins University in 2004 and earned his PhD degree in Structural Mechanics in May 2009 21. Petitioner Tootkaboni is now an Associate Professor at the University of Massachusetts-Dartmouth. 22. Petitioner Tootkaboni arrived at Logan Airport on January 28, 2017, following a trip out of the country to attend an academic conference. 23. Petitioner Tootkaboni has been detained since that arrival. 24. Counsel for Petitioner Tootkaboni have attempted to make contact with him at Logan Airport but have been unsuccessful due to Petitioner Tootkaboni’s detention. 25. Upon knowledge and belief, Petitioner remains in the custody of CBP at Logan Airport. 26. Petitioner Tootkaboni is being detained at Logain Airport and not being permitted to go home, in violation of the U.S. law. Petitioner Louhghalam 27. Petitioner Louhghalam is an Iranian national and a lawful permanent resident of the United States. 28. Petitioner Louhghalam is Muslim. 29. Petitioner Louhghalam holds a Ph.D. and a M.S. in Engineering Mechanics from the Johns Hopkins University.
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30. Petitioner Louhghalam is now an Associate Professor at the University of Massachusetts-Dartmouth.
31. Petitioner Louhghalam arrived at Logan Airport on January 28, 2017, following a trip out of the country to attend an academic conference.
32. Petitioner Louhghalam has been detained since that arrival. 33. Counsel for Petitioner Louhghalam have attempted to make contact with her at Logan Airport but have been unsuccessful due to Petitioner Louhghalam’s detention. 34. Upon knowledge and belief, Petitioner Louhghalam remains in the custody of CBP at Logan Airport. 35. Petitioner Louhghalam is being detained at Logain Airport and not being permitted to go home, in violation of the U.S. law. 36. Congress has provided that lawful permanent residents in Petitioners’ situation are entitled to enter the United States. Under 8 U.S.C. § 1101(a)(13)(C), a lawful permanent resident is regarded as seeking an admission into the United States for purposes of the immigration laws” only if he or she “has abandoned or relinquished that status,” id. § 1101(a)(13)(C)(i), has been absent from the United States for more than 180 days continuously, is in removal proceedings, has committed one of a class of enumerated offenses, or has attempted to enter without inspection. 37. None of the foregoing circumstances applies to Petitioners and therefore they are not deemed to be seeking admission and have a right to enter. In In re Collado–Munoz, 21 I. & N. Dec. 1061, 1065-1066 (1998) (en banc) (requiring immigration judge to look to 8 U.S.C. § 1101(a)(13)(C) in determining whether lawful permanent resident was applicant for admission);
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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).
38. Respondents are also detaining Petitioners in violation of the Due Process Clause. In Rosenberg v. Fleuti, 374 U.S. 449, 462 (1963), the Supreme Court held that “an innocent, casual, and brief excursion by a resident alien outside this country's borders may not have been intended as a departure disruptive of his resident alien status and therefore may not subject him to the consequences of an entry into the country on his return.” (internal quotation marks and citations omitted); see also Kwong Hai Chew v. Colding, 344 U.S. 590, 601-02 (1953) (assimilating status, for constitutional purposes, of lawful permanent resident who had been abroad for five months to that of one continuously present). The Supreme Court reaffirmed this constitutional principle in Landon v. Plasencia, 459 U.S. 21, 31 (1982) (describing Chew as standing for the proposition that “a resident alien returning from a brief trip has a right to due process just as would a continuously present resident alien”).
39. As a lawful permanent residents of the United States, Petitioners are attempting to return home. They have been left in limbo while detained by the Respondents for no reason other than the discriminatory and unconstitutional EO
CAUSES OF ACTION COUNT ONE
FIFTH AMENDMENT – PROCEDURAL DUE PROCESS
40. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
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41. Procedural due process requires that the government be constrained before it acts in a way that deprives individuals of liberty interests protected under the Due Process Clause of the Fifth Amendment. Additionally, due process requires that arriving immigrants be afforded those statutory rights granted by Congress and the principle that “[m]inimum due process rights attach to statutory rights.” Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (alteration in original) (quoting Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996)).
42. In particular, returning lawful permanent residents have constitutional due process rights with respect to their return to the United States. In evaluating the due process rights 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).
43. Respondents’ actions, taken pursuant to the EO, violate the procedural due process rights guaranteed by the Fifth Amendment.
COUNT TWO FIRST AMENDMENT – ESTABLISHMENT CLAUSE 44. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 45. 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
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Clause of the First Amendment by not pursuing a course of neutrality with regard to different religious faiths.
COUNT THREE FIFTH AMENDMENT – EQUAL PROTECTION 46. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 47. The EO discriminates against Petitioners on the basis of their country of origin and religion, without sufficient justification, and therefore violates the equal protection component of the Due Process Clause of the Fifth Amendment. 48. 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). 49. Respondents have demonstrated an intent to discriminate against Petitioners on the basis of religion through repeated public statements that make clear the EO was designed to prohibit the entry of Muslims to the United States. See Michael D. Shear & Helene Cooper, Trump Bars Refugees and Citizens of 7 Muslim Countries, N.Y. Times (Jan. 27, 2017), (“[President Trump] ordered that Christians and others from minority religions be granted priority over Muslims.”); Carol Morello, Trump Signs Order Temporarily Halting Admission of Refugees, Promises Priority for Christians, Wash. Post (Jan. 27, 2017). 50. Applying a general law in a fashion that discriminate on the basis of religion in this way violates Petitioner’s rights to equal protection under the Fifth Amendment Due Process
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Clause. Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). Petitioners satisfy the Supreme Court’s test to determine whether a facially neutral law – in the case, the EO and federal immigration law – has been applied in a discriminatory fashion. The Supreme Court requires an individual bringing suit to challenge the application of a law bear the burden of demonstrating a “prima facie case of discriminatory purpose.”Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-7 (1977). This test examines the impact of the official action, whether there has been a clear pattern unexplainable on other grounds besides discrimination, the historical background of the decision, the specific sequence of events leading up to the challenged decision, and departures from the normal procedural sequence. Id.
51. Here, President Donald Trump and senior staff have made clear that EO will be applied to primarily exclude individuals on the basis of their national origin and being Muslim. See, e.g., Donald J. 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 (“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 Petitioner. See supra.
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52. Thus, Respondents have applied the EO with forbidden animus and discriminatory intent in violation of the equal protection of the Fifth Amendment and violated Petitioner’s equal protection rights.
COUNT FOUR ADMINISTRATIVE PROCEDURE ACT 53. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 54. Respondents detained and mistreated Petitioners solely pursuant to an executive order issued on January 27, 2017, which expressly discriminates against Petitioners on the basis of their country of origin and was substantially motivated by animus toward Muslims. See supra Count Five. 55. The EO exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity. 56. 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). 57. 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. § 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 Petitioner to an opportunity to apply for asylum, withholding of removal, and CAT relief.
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58. Respondents’ actions in detaining and mistreating Petitioners were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of APA § 706(2)(A); contrary to constitutional right, power, privilege, or immunity, in violation of APA § 706(2)(B); in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, in violation of APA § 706(2)(C); and without observance of procedure required by law, in violation of § 706(2)(D).
COUNT FIVE RELIGIOUS FREDOM RESTORATION ACT 59. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 60. The EO will have the effect of imposing a special disability on the basis of religious views or religious status, by withdrawing an important immigration benefit principally from Muslims on account of their religion. In doing so, the EO places a substantial burden on Petitioner’s exercise of religion in a way that is not the least restrictive means of furthering a compelling governmental interest.
PRAYER FOR RELIEF WHEREFORE, Petitioners prays that this Court grant the following relief: (1) Issue a Writ of Habeas Corpus requiring Respondents to release Petitioners; (2) Issue an injunction ordering Respondents not to detain any individual solely on the basis of the EO;
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(3) Enter a judgment declaring that Respondents’ detention of Petitioners is and will be unauthorized by statute and contrary to law;
(4) Award Petitioners reasonable costs and attorney’s fees; and (5) Grant any other and further relief that this Court may deem fit and proper.

DATED: January 28, 2017 Boston, Massachusetts

Respectfully submitted,
Derege B. Demissie (BBO#637544) Demissie & Church 929 Mass. Ave., Suite 101 Cambridge, MA 02139 (617) 354-3944
/s/ Kerry E. Doyle Kerry E. Doyle (BBO# 565648) Graves & Doyle 100 State Street, 9th Floor Boston, MA 02109 (617) 216-1248
/s/ Susan Church Susan Church Demissie & Church 929 Mass. Ave., Suite 101 Cambridge, MA 02139 (617) 354-3944

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/s/ Matthew R. Segal Matthew R. Segal (BBO# 654489) Sarah Wunsch Jessie J. Rossman Laura Rotolo Adriana Lafaille ACLU Foundation of Massachusetts 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org
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 Case 1:17-cv-10154 Document 6 Filed 01/29/17 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETIS

MAZDAK POURABDOLLAH TOOTKABONI and ARGHAVANLOUHGHALAM,
Petitioners,
v.

CIVIL ACTION NO. 17-cv-10154

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

Respondents

TEMPORARY RESTRAINING ORDER January 29, 2017

BURROUGHS, U.S.D.J. On January 28, 2017 the Petitioners filed a Petition for Writ of Habeas Corpus and
Complaint for Declaratory and Injunctive Relief. After consideration of the written submissions, arguments of counsel, and the hearing
held on January 28-29, 2017, the Court hereby finds as follows: 1. The petitioners have met their burden of establishing a strong likelihood of success in
establishing that the detention and/or removal of the petitioners and others similarly situated would violate their rights to Due Process and Equal Protection as guaranteed by the United

States Constitution; 2. Absent a stay of removal, petitioners and others similarly situated, including lawful
permanent residents, citizens, visa-holders, approved refugees, and other individuals from nations who are subject to the January 27, 2017 Executive Order, are likely to suffer irreparable

harm.

Case 1:17-cv-10154 Document 6 Filed 01/29/17 Page 2 of 3

3. The balance of harms favors the issuance of this temporary restraining order and its

issuance is in the public interest.

NOW, THEREFORE, IT IS HEREBY ORDERED

I.

that respondents, their officers, agents, servants, employees, attorneys, and all

members and persons acting in concert or participation with them:

a) shall limit secondary screening to comply with the regulations and statutes in effect

prior to the Executive Order, including 8 U.S.C. § 1101(a)(13)(C);

b) shall not, by any manner or means, detain or remove individuals with refugee

applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee

Admissions Program, holders of valid immigrant and non-immigrant visas, lawful permanent

residents, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen who,

absent the Executive Order, would be legally authorized to enter the United States;

c) to assure compliance with this Order, the United States Marshal for the District of

Massachusetts shall be served with this Order and is further directed to take those actions

deemed necessary to enforce this Order; and

d) Customs and Border Protection shall notify airlines that have flights arriving at Logan

Airport of this Order and the fact that individuals on these flights will not be detained or

returned based solely on the basis of the Executive Order.

II. This Order shall remain in effect for a period of seven {7) days from the date of this Order.

The Court shall schedule a hearing prior to the expiration of this Order.

[2]

Case 1:17-cv-10154 Document 6 Filed 01/29/17 Page 3 of 3 Ill. Petitioners shall file an Amended Complaint by January 30, 2017.
~L~-~
AisonD.BUfl.oughs United States District Judge January 29, 2017
[3]

 
 Case 1:17-cv-10154-NMG Document 28 Filed 02/01/17 Page 1 of 32

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ARGHAVAN LOUHGHALAM and, MAZDAK POURABDOLLAH TOOTKABONI
Plaintiff-Petitioners,

FATEMEH YAGHOUBI MOGHADAM, BABAK YAGHOUBI MOGHADAM, ALI SANIE, ZAHRASADAT MIRRAZI RENANI, LEILY AMIRSARDARY, and OXFAM AMERICA, INC.
Plaintiffs,

v.

No.17-cv-10154-NMG

DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. McALEENAN, Acting Commissioner of CBP; and WILLIAM MOHALLEY, Boston Field Director, CBP,
Defendants.

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

Case 1:17-cv-10154-NMG Document 28 Filed 02/01/17 Page 2 of 32
1. This is a suit on behalf of noncitizens who are lawfully in the United States after being thoroughly vetted by the U.S. government, and on behalf of Oxfam America, Inc., a U.S. organization dedicated to reducing poverty around the world. Oxfam and the noncitizens—including five lawful permanent residents—are victims of Section 3 of President Donald Trump’s Executive Order (“EO”) of January 27, 2016, which bars entry into the United States by nationals of seven Muslimmajority countries.
2. Issued a week after his inauguration, the EO fulfills President Trump’s campaign promise to institute a “Muslim ban.” As Acting Attorney General Sally Yates put it yesterday, in a letter that reportedly led to her dismissal, “statements made by an administration or it[s] surrogates close in time to the issuance of an Executive Order . . . may bear on its purpose.”
3. In other words: if an Executive Order looks like a Muslim ban, acts like a Muslim ban, and has been talked about as a Muslim ban, then it’s probably a Muslim ban.
4. Consistent with its purpose, the EO’s effects were immediate and catastrophic. It yielded unlawful detention in Boston’s Logan Airport; required noncitizens who reside in the United States to cancel international travel that could leave them no means to return home to the U.S.; stranded U.S. residents who had already traveled overseas; and prevented institutions of learning from accessing information and participating in a free exchange of ideas.
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Case 1:17-cv-10154-NMG Document 28 Filed 02/01/17 Page 3 of 32
5. The EO is so contrary to the laws, Constitution, and traditions of the United States that it is almost literally indefensible. As alleged below, the EO violates equal protection guarantees against discrimination based on religion and national origin, the First Amendment’s Establishment Clause, First Amendment protections for sharing ideas and petitioning the government, constitutional due process guarantees, and the Administrative Procedure Act. The individual plaintiffs1 and Oxfam therefore seek a declaration that Section 3 is unlawful, an injunction preventing defendants from enforcing it, and an order requiring defendants to alert airlines about this relief, so that the Executive Order’s disastrous consequences are ended as swiftly as they began.
JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1361, 2241, 2243, and the Suspension Clause of the U.S. Constitution. This Court has further remedial authority pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. 7. Venue properly lies within the District of Massachusetts because a substantial part of the events or omissions giving rise to this action has occurred in
1 Plaintiff-petitioners Pourabdollah Tootkaboni and Arghavan Louhghalam, and Plaintiffs Fatemeh Yaghoubi Moghadam, Babak Yaghoubi Moghadam, Ali Sanie, Zahrasadat Mirrazi Renani, and Leily Amirsardary are collectively referred to as the “individual plaintiffs”.
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Case 1:17-cv-10154-NMG Document 28 Filed 02/01/17 Page 4 of 32
the District, the individual plaintiffs all reside in Massachusetts, and Oxfam has its principle place of business in Massachusetts. 28 U.S.C. § 1391.
PARTIES 8. Plaintiff-petitioner Mazdak Pourabdollah Tootkaboni is an Iranian national and a lawful permanent resident of the United States. . 9. Plaintiff-petitioner Arghavan Louhghalam is an Iranian national and a lawful permanent resident of the United States. 10. Plaintiff Fatemeh Yaghoubi Moghadam is an Iranian national and a lawful permanent resident of the United States. 11. Plaintiff Babak Yaghoubi Moghadam is an Iranian national and a lawful permanent resident of the United States. 12. Plaintiff Ali Sanie is an Iranian national and a lawful permanent resident of the United States. 13. Plaintiff Zahrasdat Mirrazi Renani is an Iranian national with an F-1 student visa. 14. Plaintiff Leily Amirsardary is an Iranian national with an F-1 student visa. 15. Plaintiff Oxfam America, Inc. (“Oxfam”) is part of a 19-member confederation of non-governmental development organizations—Oxfam International—dedicated to creating lasting solutions to hunger, poverty, and social
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Case 1:17-cv-10154-NMG Document 28 Filed 02/01/17 Page 5 of 32
injustice through long-term partnerships with poor communities around the world, and by responding to life-threatening emergencies. Oxfam and all Oxfam International organizations seek to challenge the structural barriers that foster conflict and human suffering and limit people from gaining the skills, resources, and power to become self-sufficient.
16. Defendant Donald Trump is the President of the United States. He is sued in his official capacity.
17. Defendant U.S. Department of Homeland Security (“DHS”) is the cabinet department of the United States government responsible for the enforcement of immigration laws.
18. Defendant U.S. Customs and Border Protection (“CBP”) is the component of DHS responsible for the protection of the United States border, including the admission of travelers at airports and other ports of entry.
19. Defendant John Kelly is the Secretary of DHS. Secretary Kelly is responsible for the administration of immigration laws at the border and in the interior, and had immediate custody of plaintiff-petitioners Tootkaboni and Louhghalam during their detention on January 27, 2017. He is sued in his official capacity.
20. Defendant Kevin K. McAleenan is the Acting Commissioner of CBP. Acting Commissioner McAleenan is responsible for the administration of immigration laws at the border, including the admission of travelers to the United
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Case 1:17-cv-10154-NMG Document 28 Filed 02/01/17 Page 6 of 32
States. He had immediate custody of plaintiff-petitioners Tootkaboni and Louhghalam during their detention on January 27, 2017. He is sued in his official capacity.
21. Defendant William Mohalley is the Director of the Boston Field Office of CBP, and had immediate custody of petitioners Tootkaboni and Louhghalam during their detention on January 27, 2017. He is sued in his official capacity.
STATEMENT OF FACTS I. The Executive Order and Anti-Muslim Sentiment
A. The January 27, 2017 Executive Order 22. Donald Trump was inaugurated as the forty-fifth President of the United States on January 20, 2017. 23. On January 27, President Trump signed an executive order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States” (herein, “EO”). 24. Citing an asserted 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; provides that refugee admissions, once resumed, should prioritize members of a “minority religion” in their countries of origin who are facing “religious-based persecution”;
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and proclaims that “the entry of nationals of Syria as refugees is detrimental to the interests of the United States,” singling out Syrian refugees for an indefinite “suspension” on their admission to the country.
25. Most relevant here 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.
26. There are currently seven countries that the United States government has determined 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” for 90 days from the date of the EO.
27. The impact of this restriction would expand even further if DHS designates additional countries or areas as being “of concern” under 8 U.S.C. § 1187(a)(12)(D); see id. § 1187(a)(12)(A), or extends the duration of the ban, either under the terms of the EO itself (see Section 3(e)) or under a new executive order.
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B. The EO’s Anti-Muslim Motivation
28. The EO was motivated by anti-Muslim sentiment, not by a desire to
further national security or any other legitimate government interest.
29. During his campaign, now-President Trump repeatedly made anti-
Muslim statements, including promising to ban Muslims from entering the United
States.2
30. The EO was designed to implement President’s Trump campaign
promise to prohibit the entry of Muslims to the United States. In fact, former New
York mayor Rudy Giuliani revealed that he assembled a group to develop the EO
after President Trump asked him to help him find a “legal[]” way to implement a
“Muslim ban.”3
31. Through its provision favoring refugee admission of religious
minorities, the EO also implements President Trump’s policy to favor Christians
over Muslims from Muslim-majority countries.4
2 See, e.g., Donald J. Trump, Donald J. Trump Statement On Preventing Muslim Immigration (Dec. 7, 2015), www.donaldjtrump.com/press-releases/donald-j.-trumpstatement-on-preventing-muslim-immigration (“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on.”); Abby Phillip and Abigail Hauslohner, Trump on the Future of Proposed Muslim Ban, Registry: ‘You know my plans’, Wash. Post (Dec. 22, 2016); see also Theodore Schleifer, Donald Trump: ‘I think Islam hates us’, CNN (Mar. 10, 2016). 3 See Amy B. Wang, Trump Asked for a ‘Muslim ban,’ Giuliani says – and Ordered a Commission to do it ‘legally’, Wash. Post (Jan. 29, 2017). 4 Carol Morello, Trump Signs Order Temporarily Halting Admission of Refugees, Promises Priority for Christians, Wash. Post (Jan. 27, 2017) (reporting President Trump affirmed that he would prioritize Middle Eastern Christians). On the morning of January 29, 2017—following orders by three courts enjoining parts of the EO—President Trump tweeted that “Christians in the Middle-East have been
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32. In developing the EO, President Trump did not inform or consult officials actually responsible for the nation’s defense, homeland security, and control of the nation’s borders.5
33. Because the EO was motivated by anti-Muslim sentiment rather than any genuine effort to advance national security, or any other legitimate government interest, it is not justified by any facially legitimate and bona fide reason.
C. Defendants Have not Disavowed Enforcement of the Executive Order
34. On January 29, 2017, this Court granted a temporary restraining order barring for seven days the detention or removal of individuals with valid entry documents under the EO (“TRO”). ECF No. 6. The TRO also ordered CBP to inform airlines flying into Logan Airport that noncitizens would not be detained or removed under the EO.
35. However, later that day, referencing another temporary injunction against the EO issued by United States District Judge Ann M. Donnelly, a White House spokesperson stated that Judge Donnelly’s ruling “[did] not undercut the President’s executive order. All stopped visas will remain stopped. All halted admissions will remain halted. All restricted travel will remain prohibited.”6
executed in large numbers. We cannot allow this horror to continue!” See twitter.com/realdonaldtrup/status/825721153142521858. 5 See Michael D. Shear & Ron Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017) (reporting that Stephen Bannon, chief White House strategist, a small White House team and a small group of the president’s advisors worked on order without apprising DHS, the State Department, or the Department of Defense). 6 Ariane de Vogue, Eli Watkins & Alanne Orjoux, Judges temporarily block part of Trump’s immigration order, WH stands by it, CNN (Jan. 29, 2017).
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36. Also that day, defendants Kelly and DHS issued three separate statements about the EO.
37. In a statement entitled “Department Of Homeland Security Response to Recent Litigation,” DHS mirrored the White House stating “prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas at any time if required for national security or public safety.” The release simultaneously stated that it would “continue to enforce all of President Trump’s Executive Orders,” and that DHS would “comply with judicial orders.”7
38. That same day, defendant Kelly issued a statement indicating that lawful permanent resident status would be “a dispositive factor in our case-by-case determinations” about the entry and admission of noncitizens into the United States.8 This statement neither revised the EO nor disclaimed its application to lawful permanent residents.
39. A further statement by DHS that same day stated “[w]e are and will remain in compliance with judicial orders.”9
40. On January 30, 2017, then-Acting Attorney General Sally Yates directed the Department of Justice not to present arguments in defense of the EO. Yates indicated that her review of the EO included “statements made by [the] 7 Dep’t of Homeland Security, Department of Homeland Security Response to Recent Litigation, (Jan 29, 2017), dhs.gov/news/2017/01/29/department-homeland-securityresponse-recent-litigation. 8 John Kelly, Statement by Secretary John Kelly on the Entry of Lawful Permanent Residents into the United States (Jan. 29, 2017), dhs.gov/news/2017/01/29/ statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states. 9 Dep’t of Homeland Security, DHS Statement on Compliance with Court Orders and the President’s Executive Order, (Jan. 29, 2017), dhs.gov/news/2017/01/29/dhsstatement-compliance-court-orders-and-presidents-executive-order.
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administration or its surrogates close in time to the issuance of an Executive Order that may bear on it[s] purpose,” and that she was not convinced of the EO’s lawfulness.10
41. President Trump fired Yates hours later.11 42. Since this Court’s issuance of the TRO on January 29, numerous noncitizens are continuing to be turned away from flights to Logan Airport on the basis of the EO. Noncitizens who are nationals of the affected countries who are outside the United States do not know whether they will be permitted to travel, and those in the United States have little reason to believe that they will be able to return if they travel abroad. II. Individual Plaintiffs 43. All of the individual plaintiffs are Iranian nationals who are noncitizens lawfully in the United States after being thoroughly vetted by the United States government. 44. Plaintiff-petitioners Mazdak Pourabdollah Tootkaboni and Arghavan Louhghalam, and plaintiffs Fatemeh Yaghoubi Moghadam, Babak Yaghoubi Moghadam and Ali Sanie, are lawful permanent residents of the United States. As lawful permanent residents, they have the right to enter the country unless they are deemed to be seeking admission. In re Collado–Munoz, 21 I&N Dec. 1061, 106566 (BIA 1998); Vartelas v. Holder, 566 U.S. 257 (2012). Thus, when Tootkaboni and 10 Jonathan H. Adler, Acting Attorney General Orders Justice Department Attorneys not to Defend Immigration Executive Order [UPDATED], Wash. Post (Jan. 30, 2017). 11 Michael D. Shear, Mark Landler, Matt Apuzzo & Eric Lichtblau, Trump Fires Acting Attorney General Who Defied Him, N.Y. Times (Jan. 30, 2017).
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Louhghalam entered the United States on January 28, 2017, they were not seeking admission and had a right to enter the country because they did not relinquish their status as lawful permanent residents, were not absent from the United States for more than 180 days continuously, were not in removal proceedings, did not commit any of the enumerated offenses, and did not attempt to enter the country without inspection. 8 U.S.C. § 1101(a)(13)(C)(i)-(vi) (2014).
45. Plaintiffs Zahrasdat Mirrazi Renani and Leily Amirsardary hold student F-1 visas, and they were inspected by CBP for lawful entry to the United States.
46. Student F-1 visas are awarded by the United States government, and approved by a United States Consular Officer. To secure that immigration status, both they and their academic institutions had to be vetted by the United States government.
47. Congress has provided that Amirsardary and Renani, as nonimmigrant visa-holders, are entitled to enter the United States. Pursuant to 22 C.F.R. § 41.122, an immigration officer may cancel a valid nonimmigrant visa if certain enumerated fraud or inadmissibility criteria are met, none of which are applicable here.12
12 Immediately prior to the filing of this Amended Petition, defendants served on the plaintiff-petitioners a document purportedly issued by Edward J. Ramotowski, Deputy Assistant Secretary, Bureau of Consular Affairs, Department of State, dated January 27, 2017 stating “I hereby revoke all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen, subject to the exceptions discussed below”. This document was never before disclosed to the plaintiffs, nor was it disclosed to this Court at the hearing on
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48. Section 3(c) of the EO prohibits the individual plaintiffs from conducting trips abroad because it declares that their return to the United States would be “detrimental to the interests of the United States” and suspends their rights to re-enter the United States.
49. If the individual plaintiffs were not Iranian nationals, and instead nationals of any country in the world other than the seven Muslim-majority countries subject to the EO, they still would be legally entitled to conduct travel abroad, knowing that they could return to the United States.
50. None of the individual plaintiffs poses any threat of terrorist activity and none of them, has any criminal record in Iran or the United States. There is no legitimate government rationale for impeding their international travel or preventing their return to the United States from their scheduled trips abroad. The EO applies to them regardless of whether they travel to a country that may have sensitive diplomatic relations with the United States or whether they travel to a close ally of the United States.
51. Enforcement of the EO has caused, and will continue to cause, irreparable and significant harm to the individual plaintiffs, as alleged below.
January 28-29, 2017. Plaintiffs reserve their right to further amend this Amended Petition once the purported action of the Assistant Secretary has been investigated.
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Plaintiff-Petitioner Arghavan Louhghalam 52. Plaintiff-petitioner Arghavan Louhghalam is an Iranian national and a lawful permanent resident of the United States who resides in Massachusetts. 53. Louhghalam is Muslim. 54. Louhghalam holds a Ph.D. and an M.S. in Engineering Mechanics from the Johns Hopkins University. She is now an Assistant Professor at the University of Massachusetts Dartmouth. 55. Louhghalam arrived at Logan Airport on January 28, 2017, following a trip out of the country to attend an academic conference. She was detained for nearly four hours, suffering irreparable harm. 56. This petition was filed and she was released prior to a hearing on the habeas petition. 57. The defendants’ enforcement of the EO was the only reason for Louhghalam’s detention. 58. As an academic, Louhghalam must travel internationally for work to attend meetings and conferences. It is also important to her to visit her father in Iran on a regular basis, because he is 69 years old and has a serious heart condition. 59. As a consequence of the EO, Louhghalam is now refraining from leaving the country because she is afraid she will be unable to return.
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Plaintiff-Petitioner Mazdak Pourabdollah Tootkaboni 60. Plaintiff-petitioner Mazdak Pourabdollah Tootkaboni is an Iranian national and a lawful permanent resident of the United States who resides in Massachusetts. He is married to Louhghalam. 61. Tootkaboni is Muslim. 62. Tootkaboni joined the Department of Civil Engineering at the Johns Hopkins University in 2004 and earned his Ph.D. in Structural Mechanics in May 2009. He is now an Associate Professor at the University of Massachusetts Dartmouth. 63. Tootkaboni arrived at Logan Airport on January 28, 2017, following a trip out of the country to attend an academic conference. He was detained for nearly four hours, suffering irreparable harm. 64. This petition was filed and he was released prior to a hearing on the habeas petition. 65. The defendants’ enforcement of the EO was the only reason for Tootkaboni’s detention. 66. As an academic, Tootkabani must travel internationally for work to attend meetings and conferences. It is also important to him to visit his mother in Iran on a regular basis, because she is 70 years old and has suffered from serious depression for about 25 years.
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67. As a consequence of the EO, Tootkabani is now refraining from leaving the country because he is afraid he will be unable to return.
Plaintiff Fatemeh Yaghoubi Moghadam 68. Plaintiff Fatemeh Yaghoubi Moghadam (“F. Moghadam”) is an Iranian national and a lawful permanent resident of the United States who resides in Massachusetts with her brother, Babak. She has a bachelor’s degree in graphic design. 69. She is Muslim. 70. F. Moghadam has close family members living in Iran, including her parents, a brother, a grandmother with whom she is very close, and aunts and uncles on her mother’s side of the family. She misses her family very much and had counted on visiting them this spring, especially her brother Behrouz who recently suffered a major heart attack. 71. F. Moghadam fears that due to the EO she will not be able to return to the United States if she travels abroad to visit family in Iran. 72. As a consequence of the EO, F. Moghadan is now refraining from traveling to Iran to see her family, because she is afraid that she will be unable to return.
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Plaintiff Babak Yaghoubi Moghadam 73. Plaintiff Babak Yaghoubi Moghadam (“B. Moghadam”) is an Iranian national and a lawful permanent resident of the United States who resides in Massachusetts. He is the brother of Fatemeh. 74. He is Muslim. 75. He has a Ph.D. in mechanical engineering from the University of Washington, an M.S. degree in mechanical engineering from Ferdowsi University and a B.S. in mechanical engineering from Iran University of Science & Technology. 76. B. Moghadam obtained his permanent resident status through a national interest waiver based on the importance to the United States of his knowledge, skills and experience. He currently is employed as a senior engineer by Becton Dickinson, a global medical technology company, and works on making medical devices to treat type I and type II diabetes patients. He also has experience developing ten-to-fifteen minute diagnostic tests to be used in doctors’ offices, saving patients the need to go to hospitals for tests for diseases like HIV. 77. B. Moghadam has close family members living in Iran, including his parents, a brother, a grandmother, and aunts and uncles on his mother’s side of the family. 78. B. Moghadam had been planning to purchase a ticket to visit these relatives in Iran or in other nearby countries in the next month. He particularly needs to see his brother Behrouz, who recently suffered a major heart attack.
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79. In addition, to advance at his company, B. Moghadam must be able to travel internationally. His employer, however, has advised non-citizen employees from Iran and the other affected countries not to travel abroad because of the EO.
80. As a consequence of the EO, B. Moghadan is now refraining from traveling abroad to see his family and advance his career, because he is afraid he will be unable to return.
Plaintiff Ali Sanie 81. Plaintiff Ali Sanie is an Iranian citizen and a lawful permanent resident residing in Massachusetts. 82. Sanie is Muslim. 83. Sanie works as a cashier at a grocery store seven days a week. He developed serious neck issues that cause intense pain in his neck, and potentially requires neck surgery. 84. Sanie’s medical doctor in Iran is best suited to perform any required surgery, and Sanie’s family in Iran is able to care for him during his recovery after any surgery. 85. Accordingly, Sanie made plans to travel to Iran to obtain medical treatment from his own physician and scheduled his departure for Iran on January 30, 2017, with plans to complete his surgery before March 20, 2017.
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86. Sanie made arrangements for his trip by pre-paying three months of his rent, and arranging with his employer to have coverage for his job while he was gone. Sanie funded his round-trip travel with two years of savings.
87. Sanie is very upset because of his inability to receive medical care in Iran and is confused about what his future will hold.
88. Sanie is in intense pain, is disabled as a result of his injury, and his position has been filled for the next three months.
89. As a consequence of the EO, Sanie did not travel on January 30 as scheduled. He is refraining from traveling to Iran to receive critical medical care from his physician, and to be cared for by his family, because he is afraid he will be unable to return to the United States.
Plaintiff Zahrasadat Mirrazi Renani 90. Plaintiff Zahrasadat Mirrazi Renani is an Iranian national and a lawful non-immigrant residing in Massachusetts. 91. Renani is Muslim. 92. She is currently completing her first year of a five-year doctoral program in linguistics at University of Massachusetts Amherst. Her linguistics program is ranked seventh in the world of over 3000 universities evaluated by QS World University Rankings. Her academic focus is in syntax and semantics. She earned straight As in her first semester.
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93. Renani’s parents, a teacher and a businessman, live in Iran. Her only sibling, a younger brother, died just eight months ago of a stroke while mountain climbing.
94. Renani chose to study in America despite achieving the highest score of 3000 students on the annual examination for admission into postgraduate linguistics programs in Iran. She promised, however, to visit her parents often, and obtained a multiple entry F-1 visa before moving to the United States in September 2016.
95. Renani made her first visit to her parents on December 14, 2016. She spent her entire winter break with her family, returning to the University of Massachusetts Amherst on January 21, 2017.
96. Renani had planned to visit her parents again in late March during on Norooz, a time of New Year observance in Iranian culture, when families traditionally come together to reflect and celebrate. Renani and her parents are still reckoning with her brother’s tragic death, so reuniting to comfort one another and their extended family is uniquely important this year. Renani had planned to leave for Iran on March 11, 2017, the day her spring break begins.
97. Renani also had planned to attend the West Coast Conference on Formal Linguistics in Calgary Canada, and to arrive there on April 27, 2017. This conference is among the most prestigious in Renani’s field of research. She has researched, drafted and submitted an abstract for presentation at the conference, on “Double-Object Construction in the Persian Language.” The opportunity to present
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to such an accomplished audience would be an invaluable step forward in Renani’s young but promising academic career.
98. As a consequence of the EO, however, Renani is refraining from international travel because she is afraid she will be unable to return.
99. If she makes either of her planned trips abroad—each scheduled for an irreplaceably important period which falls within 90 days of the EO—she is afraid she will not be able to return to the United States.
100. Renani has been awarded full funding of her doctoral studies—worth over $290,000—but that funding is conditioned upon her continued fulfillment of class requirements and the teaching and research responsibilities of an “Assistantship” which she holds at the University of Amherst. The EO therefore imposes an unfair and indefensible predicament: Renani must forfeit two invaluable opportunities for family reunion and professional growth; or she must forfeit the opportunity she has earned to pursue her doctorate in formal linguistics.
Plaintiff Leily Amirsardary 101. Plaintiff Leily Amirsardary is an Iranian national and a lawful nonimmigrant residing in Massachusetts. She owns a small business. 102. Amirsardary was born in Iran and attended high school in France, where she is a resident. She attended Wellesley College in Massachusetts on an F-1 student visa, and graduated from Wellesley with a bachelor’s degree in 2016. 103. Amirsardary obtained Optional Practical Training (“OPT”) in July 2016 through U.S. Citizenship and Immigration Services.
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104. In 2016, Amirsardary founded Anara, a Boston-based women’s luxury footwear startup company that produces shoes and regionally-inspired accessories. Anara is hoping to launch its first line of products in June 2017.
105. Anara is funded by U.S and foreign investors, and will soon join a university affiliated incubator, the Harvard Innovation Lab. In addition, Anara currently receives some operational support from Harvard Business School students. The company is on track to raise a convertible note from angel investors and venture capital groups. Several United States-based angel investors have already committed to investing, and investment will begin in the coming weeks.
106. Once successfully launched, Anara will hire its own employees. Currently, however, Amirsardary is solely responsible for nearly every aspect of Anara’s operations, ranging from designing the products to raising capital for the company.
107. Amirsardary has worked tirelessly to build Anara, and the company is a few short months from being able to launch its products.
108. Anara’s test products (currently limited to footwear) are manufactured in Italy. It is crucial that Amirsadary travel to Italy every six to eight weeks to source materials for Anara and oversee its manufacturing process. Before the EO, Amirsardary was legally entitled to, and did, travel from the United States to and from Italy to conduct business for Anara. She last traveled there in November 2016, and she must travel again to Italy to source materials and oversee the manufacturing process for Anara no later than March, 2017.
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109. Anara’s business plan also includes sourcing materials from and working with manufacturers from Spain, India and Thailand. Prior to launching these types of products, it is crucial that Amirsardary be able to travel to other destinations to source these products and accessories.
110. Amirsardary’s regular travel to outside of the United States, and her right to return to the United States after her travel, is crucial to the success of her small business Anara.
111. As a consequence of the EO, however, Amrisardy is refraining from traveling abroad because she is afraid she will be unable to return. III. Oxfam America
112. Oxfam America is a non-profit headquartered in Boston. 113. Oxfam and its affiliated organizations fund development and humanitarian relief projects in more than 90 countries, collaborating on strategic, long-term efforts to help build strong local organizations that can promote selfsufficiency and alleviate the issues of global poverty. Oxfam and its affiliates advocate for changes in international policies related to trade, conflict, funding for education, development assistance, debt relief and other issues, as well as work to educate and mobilize the public and raise awareness about global poverty. 114. Oxfam operates in five of the seven countries affected by the Executive Order—all but Libya and Iran. Its humanitarian mission is crucial in those countries; for example, Oxfam is one of the few international non-governmental
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organizations still allowed to function in Sudan, bringing much-needed relief to displaced populations in Darfur and beyond.
115. Oxfam regularly brings staff members and civil society partners from the affected countries to the United States. These visits are essential for internal purposes, so that Oxfam’s American staff can obtain information from their overseas colleagues that enable the organization to carry out its activities in the United States. They are critical for external purposes as well, as they provide opportunities for people who are intimately familiar with country conditions to bear witness on Oxfam’s behalf in direct communications with members of the organization’s key American constituencies. This includes speaking to key Congressional constituencies, donors, and potential donors about conditions, and about Oxfam’s operations, in those countries, and these efforts are essential for keeping Oxfam’s programs in those countries funded and operational.
116. In addition, Oxfam regularly brings people from the affected countries to the United States to speak with American governmental officials, including lawmakers in the United States’ House of Representatives and Senate and members of the executive branch (including representatives of the White House, the Department of State, and the Department of the Treasury) as well as the United Nations’ Security Council mission in New York. These meetings and discussions enable Oxfam to educate governmental officials generally about political and humanitarian conditions in the affected countries, and also to answer specific
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questions helpful in shaping policy and practice with respect to countries where the United States government often has limited insight because of ongoing conflict.
117. Oxfam frequently brings representatives from the affected countries to the United States for this purpose at the request of the governmental officials themselves. For example, just prior to the signing of the Executive Order, Oxfam was requested to send its Country Director from one of the listed countries to Washington to provide briefings on a key, time-sensitive issue under consideration across the White House, the Department of the Treasury, and the Department of State. The meeting was to be held within the 90-day period of the visa ban in order to comply with the United States Government’s own timeline for action, but that meeting will now be impossible.
118. Oxfam currently expects to bring several other people to the United States from the affected countries within the next 90 days. This includes a representative of a partner organization in Syria, who has been invited to speak at public events in mid-March marking six years since the start of the Syria crisis, to raise awareness and suggest potential solutions to government officials, the media, and the public. Much of this analysis comes from inside besieged areas of Syria where information is extremely difficult to come by and can only be provided securely in person in the United States. Another major component of these meetings surrounds ongoing discussions with Congress and the Department of the Treasury on the exclusion of a growing number of civil society organizations from financial services needed to deliver life-saving aid in Syria.
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119. Many people who bear witness on Oxfam’s behalf about their experiences and conditions in their countries must come to the United States to do so because they cannot safely or legally speak publicly at home.
120. Application of the EO will therefore severely impair Oxfam’s ability to advocate on its behalf and on behalf of the people Oxfam assists in the developing world. The EO will also prevent Oxfam and its representatives from addressing members of Oxfam’s key Executive and Congressional constituencies and responding to specific inquiries made by them, therefore impacting the federal government’s ability to properly effectuate foreign policy and programs in areas directly affected by Oxfam’s work.
121. Enforcement of the EO has caused, and will continue to cause, Oxfam injury in fact by, among other things, causing administrative and logistical burdens; depriving Oxfam’s employees and affiliates of their protected ability to speak with key governmental constituencies to advocate for and address questions regarding Oxfam’s programs in the affected countries; depriving Oxfam of its ability to utilize its representatives on specific projects in the furtherance of Oxfam’s fundraising needs; preventing Oxfam from representing the interests and intent of its American donors; and frustrating Oxfam’s organizational mission of alleviating global poverty. Moreover, if the EO is enforced, Oxfam will be irreparably injured by the infringement of its rights under the First Amendment to speak freely, associate freely, and petition the government. The Court can redress these injuries by
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declaring the EO is unconstitutional and invalid, and by enjoining its further enforcement.
CAUSES OF ACTION COUNT ONE
FIFTH AMENDMENT – EQUAL PROTECTION 122. The foregoing allegations are realleged and incorporated herein. 123. The Fifth Amendment’s Equal Protection Clause prohibits classifications on the basis of religion—including laws or policies enacted with discriminatory intent or applied in a discriminatory manner—unless narrowly tailored to serve a compelling government interest. Larson v. Valente, 456 U.S. 228, 244, 246 (1982); Anderson ex rel. Dowd v. City of Boston, 375 F.3d 71, 82-83 (1st Cir. 2004) (citing Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265 (1977)); Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995). 124. The EO discriminates on the basis of religion and directs the discriminatory application of immigration laws. 125. The EO is also motivated by animus against Muslims and was designed to target Muslims for exclusion from the United States. 126. The Equal Protection Clause also limits classifications based on national origin. 127. The EO singles out for differential treatment individuals from seven countries.
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128. This disparate treatment is not narrowly tailored to serve a compelling interest. Indeed, it does not further any legitimate government interest. Consequently, the EO violates the individual plaintiffs’ equal protection right to be free from religious and national origin discrimination.
COUNT TWO FIRST AMENDMENT – ESTABLISHMENT CLAUSE 129. The foregoing allegations are realleged and incorporated herein. 130. The First Amendment’s Establishment Clause erects “a wall of separation between church and State.” Everson v. Bd. of Educ., 330 U.S. 1, 15-16 (1947) (quotation marks omitted). Its “clearest command” is “that one religious denomination cannot be officially preferred over another.” Larson, 456 U.S. at 244. This prohibits government action that discriminates among religions unless such action is narrowly tailored to serve a compelling government interest. Id. at 246-47, 254-55; Awad v. Ziriax, 670 F.3d 1111, 1130-31 (10th Cir. 2012). 131. As described above, the EO preferences Christianity and disfavors Islam. This discriminatory treatment is not narrowly tailored to serve a compelling interest. Indeed, it does not further any legitimate government interest. Consequently, the EO violates the Establishment Clause of the First Amendment.
COUNT THREE FIFTH AMENDMENT – DUE PROCESS 132. The foregoing allegations are realleged and incorporated herein.
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133. All non-citizens entering the United States are entitled to the protections of the Due Process Clause of the Fifth Amendment. See, e.g., Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (arriving non-citizens must be afforded those statutory rights granted by Congress and “[m]inimum due process rights attach to statutory rights”); Landon v. Plasencia, 459 U.S. 21, 32 (1982) (affirming particularly significant due process rights of lawful permanent residents re-entering the United States).
134. Because the EO prohibits the individual plaintiffs from entering the United States without affording even minimal procedural safeguards, it violates the due process rights guaranteed by the Fifth Amendment.
COUNT FOUR ADMINISTRATIVE PROCEDURE ACT 135. The foregoing allegations are realleged and incorporated herein. 136. The APA prohibits actions that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, 5 U.S.C. § 706(2)(A); contrary to constitutional right, power, privilege, or immunity, id. at § 706(2)(B); in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, id. at § 706(2)(C); or without observance of procedure required by law, id. at § 706(2)(D). 137. The EO violates the APA because it discriminates based on religion and national origin, preferences Christianity over other religions and exhibits hostility to Islam, violates the INA’s non-discrimination clause, 8 U.S.C.
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§ 1152(a)(1)(A), and prevents individuals from exercising their opportunity to apply for asylum, withholding of removal, and Convention Against Torture relief, guaranteed by immigration laws. See 8 U.S.C. § 1225(b)(1), 8 C.F.R. §§ 235.3(b)(4), 208.30, 1003.42; 8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1231(b)(3); 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).
COUNT FIVE FIRST AMENDMENT – FREE SPEECH, FREE ASSOCIATION
AND PETITIONING CLAUSES 138. The foregoing allegations are realleged and incorporated herein. 139. The First Amendment protects the right “to receive information and ideas.” Kleindienst v. Mandel, 408 U.S. 753, 763 (1972) (quotation omitted). This includes to the right to “hear, speak, and debate with” non-immigrants and lawful permanent residents. American Academy of Religion v. Napolitano, 573 F.3d 115, 117 (2d Cir. 2009) (quotation marks omitted); American Sociological Ass’n v. Chertoff, 588 F. Supp. 2d 166, 169 (D. Mass 2008). 140. The preservation of this right is particularly important for academic, research, and policy organizations, whose very missions require a robust exchange of ideas among diverse groups of people. 141. The First Amendment also protects “the right to petition the government for redress of grievances.” U.S. CONST. Amend. I.
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142. As described above, the EO significantly burdens Oxfam’s First Amendment rights, but it is neither substantially related to an important government interest, nor narrowly tailored to a compelling government interest. Indeed, the EO is not even justified by any facially legitimate and bona fide reason.
143. Defendants’ enforcement of the EO and exclusion of Oxfam’s employees and affiliates residing and working in the affected countries, violates the free speech, free association and petitioning rights of Oxfam, its employees, and affiliated representatives and professionals.
PRAYER FOR RELIEF WHEREFORE, all plaintiffs seek an order and judgment: (1) issuing a Writ of Habeas Corpus requiring defendants to release plaintiff-petitioners; (2) declaring that Section 3 of the EO is unlawful and unconstitutional; (3) permanently enjoining defendants from detaining or removing any individual solely based on the EO; (4) requiring defendants to communicate to all airlines flying into the United States that this Court has declared Section 3 unlawful and unconstitutional, and that defendants have been prohibited by this Court from relying on the EO as a basis to detain or remove anyone otherwise legally authorized to enter the United States;
31

Case 1:17-cv-10154-NMG Document 28 Filed 02/01/17 Page 32 of 32

(5) awarding plaintiffs reasonable costs and attorney’s fees; and (6) granting any other relief that this Court may deem fit and proper.

Respectfully submitted,

/s/ Susan Church Susan Church (BBO #639306) Derege Demissie (BBO #637544) Heather Yountz (BBO # 669770) DEMISSIE & CHURCH 929 Mass. Ave., Suite 1 Cambridge, MA 02139 (617) 354-3944

/s/ Kerry E. Doyle Kerry E. Doyle (BBO #565648) GRAVES & DOYLE 100 State Street, 9th Floor Boston, MA 02109 (617) 216-1248

/s/ Michael S. Gardener Michael S. Gardener (BBO #185040) Elizabeth B. Burnett (BBO #066120) Peter A. Biagetti (BBO #042310) Susan M. Finegan (BBO #559156) Andrew N. Nathanson (BBO #548684) Susan J. Cohen (BBO #546482) MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. One Financial Center Boston, MA 02111 (617) 542-6000 smfinegan@mintz.com

/s/ Matthew R. Segal Matthew R. Segal (BBO #654489) Sarah Wunsch (BBO #548767) Jessie J. Rossman (BBO #670685) Laura Rotolo (BBO #665247) Adriana Lafaille (BBO #680210) ACLU FOUNDATION OF MASSACHUSETTS 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org

Date: February 1, 2017

CERTIFICATE OF SERVICE

I, Matthew R. Segal, hereby certify that the foregoing document will be filed through the ECF system on February 1, 2017, which will cause counsel for all parties to be electronically served.

Respectfully submitted,

/s/ Matthew R. Segal Matthew R. Segal

32

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ARGHAVAN LOUHGHALAM AND MAZDAK .

POURABDOLLAH TOOTKABONI,

. CIVIL NO. 1:17-10154-NMG

Petitioners

.

. BOSTON, MASSACHUSETTS

v.

. JANUARY 28 & 29, 2017

.

DONALD J. TRUMP, PRESIDENT OF .

THE UNITED STATES, et al,

.

Respondents

.

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

TRANSCRIPT OF HEARING REGARDING TEMPORARY RESTRAINING ORDER BEFORE THE HONORABLE JUDITH G. DEIN, U.S. MAGISTRATE JUDGE
& THE HONORABLE ALLISON D. BURROUGHS, U.S. JUDGE

APPEARANCES: For the Plaintiffs:

Matthew Segal, Esq. American Civil Liberties Union 211 Congress Street Boston, MA 02110 617-482-3170 msegal@aclum.org

Susan Church, Esq. Demissie & Church 929 Massachusetts Avenue Suite 01 Cambridge, MA 02139 617-354-3944 sc@demissiechurch.com

Heather Yountz, Esq. Demissie & Church 929 Massachusetts Avenue Suite 01 Cambridge, MA 02139 617-354-3944

Kerry E. Doyle, Esq. Graves & Doyle 9th Floor 100 State Street Boston, MA 02110

2

1

617-542-6400

kdoyle@gravesanddoyle.com

2

3

For the Defendants: Rayford A. Farquhar, Esq.

United States Attorney's Office

4

John Joseph Moakley Courthouse

1 Courthouse Way

5

Suite 9200

Boston, MA 02210

6

617-748-3100

rayford.farquhar@usdoj.gov

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

Court Reporter:

24

Proceedings recorded by electronic sound recording,

25

transcript produced by transcription service.

Judy Bond Certified Federal Court Transcriber
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3 1 COURT CALLED INTO SESSION

2 (11:34:45 P.M.)

3

THE CLERK: All rise. This Honorable Court is now

4 in session. Please be seated.

5

Calling the case Arghavan -- nope, I have no idea

6 -- Louhghalam and Mazdak Pourabdollah Tootkaboni versus

7 Trump et al, Civil Action No. of 17-10154.

8

Could counsel please identify themselves for the

9 record?

10

MS. CHURCH: Attorney Susan Church representing

11 the plaintiffs.

12

MR. SEGAL: Matthew Segal also for the plaintiffs.

13 Good evening, Your Honor.

14

MS. DOYLE: Good evening, Your Honor. It's Kerry

15 Doyle.

16

MS. YOUNTZ: Heather Yountz (inaudible).

17

MR. FARQUHAR: Good morning, Your Honor. It's Ray

18 Farquhar for the United States.

19

JUDGE BURROUGHS: It's not quite morning.

20

MAG. JUDGE DEIN: Are we recording? Yes? All

21 right.

22

Just make sure that you speak into the mics so

23 that our recording is clear.

24

JUDGE BURROUGHS: So Judge Dein and I decided to

25 do this together. It's an important matter. We're both

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4 1 here on the theory that two heads are better than one.

2 We're going to co-preside over there for the time being.

3

What is the status? We've read the petition.

4 We're both familiar with what's happened in New York. We

5 understand there's another order in Virginia. Where are we

6 here?

7

MS. CHURCH: Okay. As to our two immediate

8 plaintiffs, although they have been released, we are still

9 asking this Court to rule on the grounds that -- and

10 Attorney Segal's going to address the mootness issue, but on

11 the grounds that, first of all, that this case was filed by

12 the emergency phone call to this Court at 7:30 p.m. this

13 afternoon when both of these individuals were still in

14 custody; and second of all, on the grounds that there are

15 many other flights scheduled to come into Logan tomorrow.

16 There's Dubai flight at 7:30 a.m. There is another London

17 flight coming in early in the morning.

18

And on the grounds that the national restraining

19 order and the restraining order in Virginia -- which I'm not

20 intimately familiar with, but I am familiar with the

21 national restraining order -- do not completely solve the

22 dilemma of -- our current clients, yes, probably -- but not

23 two particular clients that we intend to amend the complaint

24 to add. And those are a lawful permanent resident who is

25 Attorney Doyle's client who's scheduled to fly in tomorrow

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5 1 morning from Iran, and an F-1 medical student who is

2 currently a Harvard Medical student who is scheduled to

3 leave the country on Tuesday, already has a ticket, but has

4 been advised by his attorney, Attorney Tony Dragle, that he

5 cannot leave due to this executive order.

6

The national order. Our problem with the national

7 order, is number, one, it only protects people from removal.

8 So if the Court reviews the language of the national

9 restraining order, it limits the process -- the protections

10 to those facing removal.

11

Our second problem with the national order is that

12 it specifically does not include lawful permanent residents.

13 It uses language such as "visa," "immigrant visa holders,"

14 but that doesn't quite clearly cover the grounds of people

15 who are a lawful permanent resident who pursuant to 8 USC

16 1101(a)(13)(C) are entitled to present themselves at the

17 border and not seek admission.

18

So the only people who are lawful permanent

19 residents who should be seeking admission are those with

20 criminal convictions, those who have been gone for more than

21 180 days. Neither of these two plaintiffs qualified under

22 that; and therefore, should have been sent through quite

23 easily.

24

So that's to start with. If the Court wants me to

25 go further into the reasons we're seeking the restraining

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6 1 order --

2

And in this case we're going to ask for -- maybe

3 in a week or so we're going to amend our pleadings to ask

4 for a declaratory judgment. I can do that at this time. .

5

JUDGE BURROUGHS: How were the two released? What

6 were the circumstances of that?

7

MS. CHURCH: They were held for more than --

8

The first individual was held for more than three

9 hours. The second individual was held for about two hours

10 and 45 minutes. And they were released after what we

11 consider to be extensive interrogation prompted by the Trump

12 Administration executive order.

13

JUDGE BURROUGHS: Released with conditions or just

14 released?

15

MS. CHURCH: That, we have not --

16

We've been trying to verify that. We have not

17 been able to verify that.

18

JUDGE BURROUGHS: So they were released by?

19

MS. CHURCH: Customs And Border Protection.

20

JUDGE BURROUGHS: Mr. Farquhar?

21

MR. FARQUHAR: Yes, Your Honor?

22

JUDGE BURROUGHS: What's your view on all of this?

23 Your official view.

24

MR. FARQUHAR: I'm not quite sure, Your Honor,

25 what you mean by my "official view."

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7

1

My personal view would be, one, it's extremely

2 complicated; secondly and most importantly, I think what's

3 before this Court, if we take a step back, is the petition

4 for a writ for declaratory injunctive relief with regard to

5 the two individuals, Mr. Tootkaboni and Louhghalam.

6

From speaking to Customs and Border Patrol, it's

7 my understanding that both of these individuals after

8 interrogation were, in fact, released. I confirmed that

9 within the past half an hour.

10

The government's position at this point would be

11 that the filing of this petition would be moot, given the

12 fact that the filing asked for their release and, in fact,

13 they were released.

14

Unfortunately, Your Honor, there is a larger issue

15 here; and that is, any other individuals that may be coming

16 forward, and it's also been brought to my attention that,

17 mushrooming into a larger issue, you have individuals that

18 are overseas at this time that are being potentially told --

19

It's my understanding from my brother and sisters

20 at opposing counsel table that there are individuals that

21 are being told that you can not board a plane going to the

22 United States, because you're not going to be let in to the

23 United States. I can't confirm that information at this

24 point. I have not been able to contact the appropriate

25 parties within the Custom and Border Patrol to confirm that

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8 1 this, in fact, is taking place.

2

And so at this point, Your Honor, I'm only able to

3 address what is before the Court, and this is with regard to

4 the detention of the two individuals that's cited in the

5 petition that was filed.

6

JUDGE BURROUGHS: So it's your view that this

7 petition is moot, and we should wait until tomorrow when

8 other people are detained or other people are denied the

9 ability to get on a plane?

10

MR. FARQUHAR: Your Honor, at this point I think

11 what needs to take place is some type of a concerted effort

12 by the United States to address the situation. I don't

13 think that trying to address it piecemeal out of New York,

14 Boston and Virginia is going to work.

15

I'm attempting -- or at least I was attempting

16 until my phone died -- to reach some folks out of MAIN

17 Justice to ascertain how we may be able to coordinate this

18 through Washington, DC.

19

Right now, again, I'm unaware of specifically any

20 petitioners or any plaintiffs that could be filing suit

21 based on the fact that they attempted to board a plane

22 overseas, and they were told they have to go home.

23

It is my understanding that -- from, again, my

24 brother and my sisters at opposing counsel table -- that

25 this has happened.

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9

1

But I'm not in a position right now to address

2 that. I do not know of any specific facts, and I don't know

3 of any specific individuals.

4

JUDGE BURROUGHS: Ms. Church?

5

MS. CHURCH: Your Honor, we do know of at least

6 one junior at MIT who's been in contact with us who

7 attempted to board a plane, I believe in London -- I've

8 talked to a lot of people today, so I'm not totally positive

9 about the location -- who was denied.

10

We know from the Attorney General's Office --

11

A representative of the Attorney General's Office

12 has told us that there are families currently in Egypt who

13 all are lawful permanent residents who are all -- local

14 Boston residents who were all sent back and not allowed to

15 board a plane.

16

With some time I'm confident we can get affidavits

17 or information at least to verify all of these people are

18 put in this position.

19

And then Attorney Segal would like to address the

20 other issues with regards to the mootness, if the Court

21 would so allow.

22

JUDGE BURROUGHS: That's fine.

23

In terms of the people that are international and

24 being denied access to a plane, what jurisdiction do we have

25 over that, an international sort of order?

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10

1

MS. CHURCH: Yeah. Attorney Segal's going to

2 address that.

3

MAG. JUDGE DEIN: And who's not letting them on

4 the plane? Is it --

5

MS. CHURCH: The airlines.

6

MAG. JUDGE DEIN: -- the airlines themselves, --

7

MS. DOYLE: It's the airlines themselves.

8

MAG. JUDGE DEIN: -- or is there a government

9 official involved?

10

MS. CHURCH: The airlines --

11

We don't know the exact details, but we've been

12 told that the airlines are not allowing it based on the

13 executive order.

14

And those are my two examples. I'm tracking

15 through national immigration lawyers thousands of examples.

16 I mean, it's happening all over the world.

17

But those are two local examples that we've had

18 direct contact with someone who's had direct contact about

19 them.

20

MR. SEGAL: Good evening, Your Honors. So just to

21 back up, I think what Ms. Church is talking about is what

22 might happen in an amended complaint.

23

But I think just to address Mr. Farquhar is

24 discussing, there's a question about whether this case is

25 moot, and our submission is that it's not.

Judy Bond Certified Federal Court Transcriber
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11

1

These two individuals, the petitioners, were

2 detained. The allegation in the complaint is they were

3 detained on the basis of the executive order, and the

4 submission from counsel for the government is that they were

5 released at some time within the last half hour.

6

And so the question really is does that make the

7 case moot. It doesn't. They were not released, the

8 government contends -- is not contending here tonight that

9 they were released because the executive orders rescinded or

10 because the CBP has disavowed enforcement of it. They were

11 simply released, and that's all we know.

12

So under cases like Clark against Martinez and

13 other cases on mootness, we don't even know if these

14 particular defendants are out of -- I'm sorry -- petitioners

15 are out of peril, let alone whether the case is moot

16 entirely. Because the government has not given up the

17 authority that they exercised. And the Courts have been

18 pretty clear that just releasing somebody when a lawsuit's

19 filed is not enough to make a case moot.

20

What I think the back and forth about the

21 possibility of amendment and Mr. Farquhar's point goes to is

22 whether their release bears on the relief that might be

23 ordered. And it might. Mr. Farquhar makes the point that

24 the government would like to take some time to sort this

25 out.

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12

1

Well, the most appropriate way to sort this out

2 would not be to leave thousands of people in peril of being

3 detained, you know, all over the country, but also here in

4 Boston when they arrive, including the folks who are set to

5 arrive at 7:40 in the morning.

6

So if the Court is inclined to limit some of the

7 relief that we requested --

8

For example, the number-one thing we requested was

9 a writ of habeas corpus requiring the respondents to release

10 the petitioners. Well, you know, given that they're not

11 presently in custody, maybe it makes sense not to rule on

12 that at the moment.

13

But the second thing we asked for was an

14 injunction ordering the respondents not to detain and

15 implicitly not to send across the globe people who are

16 arriving, any individual, solely on the basis of the

17 executive order.

18

And I think the case is not moot, and it is

19 certainly appropriate to issue that kind of relief;

20 particularly as the government, as it wants to do, sorts

21 out, tries to create and even-handed approach, and as we

22 look to see whether an amended complaint might be

23 appropriate, whether on behalf of the people that Ms. Church

24 mentioned or somebody else.

25

But either way, even if it's a time-limited

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13 1 injunction, maybe even a temporary restraining order, that

2 would be more appropriate than in a case that's not moot to

3 send it into upheaval, to send Logan Airport into upheaval

4 in the morning.

5

JUDGE BURROUGHS: Do you have a draft order that

6 you're asking us to enter tonight?

7

MS. CHURCH: Yes, Your Honor. On the --

8

Well, we can have it typed up.

9

But we have a prayer for relief that we can get

10 emailed to you with that language if would you give us 15

11 minutes.

12

JUDGE BURROUGHS: Mr. Farquhar, I take your point

13 about there being some advantages to this being dealt with

14 on a more national basis but your phone died. If you had a

15 phone, would some additional time tonight make a difference,

16 or are you going to stand on the mootness argument? What's

17 your 'druthers for tonight?

18

MR. FARQUHAR: Well, Your Honor, as we speak, my

19 phone is being charged, so that's the good news.

20

With regard to the mootness argument, I would

21 actually stand on what I have stated with regard to the

22 mootness argument.

23

I'm very much sensitive to the fact, Your Honor,

24 that potentially that there are more individuals that could

25 fall under this scenario. I don't know if that's the case.

Judy Bond Certified Federal Court Transcriber
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14 1 The only individuals that have been brought to my attention

2 were the two individuals that were mentioned here. That

3 does not necessarily mean that if someone else comes in,

4 they're going to be detained.

5

At this point, Your Honor, unfortunately given the

6 fact that it is the weekend, it has been a little more

7 difficult to get in touch with folks in DC that are high

8 enough to, in fact, execute some type of an order for the

9 rest of the country to react. And so we're moving as

10 quickly as we can, but right now I can't state what the

11 United States is going to do.

12

MAG. JUDGE DEIN: The individual that's supposed

13 to land tomorrow morning, what are the details about that?

14

MS. CHURCH: It's tomorrow evening. Attorney

15 Doyle will --

16

MR. SEGAL: I think we've been in touch separately

17 throughout the day with her as people --

18

I know that our office has been in touch with

19 someone or the family member of someone who's due to arrive

20 at, I think, 7:40 in the morning.

21

And to Mr. Farquhar's point, I mean, the question

22 really is whether --

23

I mean, we're all in favor of the government

24 sorting this out; but I mean, the worry is that if it isn't

25 sorted out by virtue of an order from this Court enjoining

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15 1 action, then policy's going to be made by individual Customs

2 and Border Patrol agents starting at 7:40 a.m. tomorrow.

3

MR. FARQUHAR: Your Honor, if I can just

4 interject? I actually don't think that's going to be the

5 case.

6

Certainly locally the Custom and Border Patrol is

7 fully aware of this scenario. They're fully aware of what's

8 happening nationwide. And my office is in direct contact

9 with them including the SAC for the Boston area. So I do

10 not think that's going to be the case.

11

At this point this Court is being asked to

12 speculate on what might happen if someone comes in under

13 this scenario, but it's my understanding at this point there

14 is no guarantee that anyone's going to be detained at the

15 airport who falls under this scenario.

16

JUDGE BURROUGHS: Well, have you spoken to them

17 about what their intention is with regards to people that

18 continue to land over the weekend?

19

MR. FARQUHAR: At this point, Your Honor, they

20 were supposed to get back to me in about an hour's time, and

21 that would put us well into the morning. So I do not have

22 that answer right now.

23

My suggestion to them was that we continue to

24 allow individuals that are lawful permanent residents to

25 enter the United States while this is being sorted out

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16 1 nationwide.

2

MS. CHURCH: Can I just chime in on the urgency

3 issue?

4

I'm the chair of the American Immigration Lawyers

5 Association. I'm on a national list served. I have

6 received an email right after the -- about -- I want to say

7 about an hour and a half after the national stay was issued

8 indicating that the Dulles CBP office is not following the

9 national stay, presumably because it wasn't issued out of

10 Dulles.

11

So we feel it particularly important to have

12 something that's local for that reason, so that it's easily

13 understood by CBP, that it applies to them.

14

And then Attorney Doyle wanted to address the

15 individual flying in tomorrow night.

16

MS. DOYLE: Your Honors, my client is Barmah

17 Keshma (phonetic). He's a returning permanent resident.

18 He's a citizen of Iran. He's scheduled to be flying in

19 tomorrow evening, and we are concerned that he will end up

20 being detained, as these other individuals were.

21

And I did want to point out to the Court that

22 Customs and Border Patrol is of the position that

23 individuals that arrive at the airport are not entitled to

24 counsel; and so therefore, when people are coming in to the

25 airports, things are happening that we are unaware of and

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17 1 are unable to talk to our clients directly or to have any

2 access to them, and that different port directors are on

3 duty at different times of the day.

4

And we're very concerned that individuals that we

5 haven't been able to reach at this point may be put back on

6 a plane, because Customs and Border Patrol have the

7 authority to deport somebody from the airport without any

8 kind of judicial review even with an immigration court. So

9 they have pretty broad authority that they tend to wield

10 very broadly, and that is our concern, is that things can be

11 happening that we're unaware of.

12

And again, in a short time today we were able to

13 identify these two individuals. A.C.L.U. again, as Mr.

14 Segal mentioned, is in touch with some other individuals

15 that would be coming in tomorrow morning. I've been in

16 touch with an individual coming in tomorrow evening.

17

But we are very limited in what we know of, and

18 that is happening in Customs when people get off the

19 airport.

20

And these particular individuals are returning

21 permanent residents that are not even supposed to be subject

22 to inspection at admission. Returning permanent residents

23 are not subject to inspection at admission; yet nonetheless,

24 they are still being detained for significant periods of

25 time and put into secondary inspection despite the fact that

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18 1 the U.S. Code specifically states that they are not subject

2 to inspection at admission.

3

JUDGE BURROUGHS: Did you have access to the two

4 named plaintiffs in this case before they were released?

5

MS. CHURCH: No. I personally went back to the

6 CBP officers. I asked for -- I identified myself as an

7 attorney. In fact, they know me. And I asked for access to

8 my clients, indicated that I represented them, indicated

9 that they were Iranian L.P.R. holders, and I was denied

10 access.

11

JUDGE BURROUGHS: How did you become aware they

12 were being held?

13

MS. CHURCH: I found -- I overheard family members

14 using the words "case-by-case basis," and I approached them

15 and asked them what was going on. And they were able to

16 text their family member and got permission for me to

17 represent them.

18

MS. DOYLE: And I can state that in the last week

19 I actually had another individual who's a returning

20 permanent resident who was stopped and put into secondary

21 inspection for a different reason, not because of this; and

22 I was able to find out just because he went into the

23 bathroom and was able to text on his phone from the bathroom

24 to his wife, and his wife called me. And so I was able to

25 talk to the port -- one of the supervisors that Ms. Church

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19 1 and I both know through our work with the American

2 Immigration Lawyers Association.

3

But he can either admit or deny that he is there,

4 and I certainly wasn't able to talk to my client. I just

5 kind of let them know that I knew he was there, and that if

6 they need anything, they should call me.

7

And from my client who I spoke to today, the

8 Customs and Border Patrol agents were down there and got

9 very upset at people, to make sure they turned off their

10 phones, because they were very upset that the attorney even

11 found out that someone was in secondary detention.

12

JUDGE BURROUGHS: What are the classifications of

13 people that are not supposed to be put into secondary

14 inspection?

15

MS. DOYLE: It would be U.S. citizens, and then

16 returning permanent residents who -- other than those that

17 are under 8 USC, Section 1101(a)(13)(C), which is

18 specifically people who have been outside the country more

19 than 180 days, persons with certain types of criminal

20 convictions, persons who may have been engaged in unlawful

21 criminal behavior during their time apart.

22

There's six specific conditions in which lawful

23 permanent residents can be considered to be applicants for

24 admission, but other than that, they are not.

25

JUDGE BURROUGHS: So you'll have to pardon me.

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20 1 It's not an area of the law I'm hugely familiar with.

2

But are they allowed to put them in to secondary

3 inspection to find out if they satisfy one of those six

4 categories?

5

MS. DOYLE: They may be entitled to ask some

6 questions to see if they're subject to these six items.

7

But the executive order that was issued by the

8 president does not address any of those issues and, in fact,

9 bring up specific grounds in which they wish to try to keep

10 people from returning to the United States that are not even

11 cited in the Immigration Act and are above and beyond those

12 particular items.

13

So from our understanding, yeah, again, this is

14 somewhat anecdotal at this point, that most people are being

15 questioned as to their religions or religious beliefs and so

16 forth as opposed to any of these specific things. We'll

17 have to follow up with the people who've been released.

18

And also just to reiterate the fact that I know

19 they're out of Customs and Border Patrol detention at this

20 point, but we don't -- we haven't actually been able to

21 verify whether they're even admitted as lawful permanent

22 residents or may have been paroled. Because persons can be

23 paroled under Immigration Act, as well.

24

MAG. JUDGE DEIN: So are you doing constitutional

25 issues as well as statutory violations? What's the base --

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21 1 on the merits.

2

MS. CHURCH: Yes, Your Honor. In our complaint

3 there are multiple constitutional grounds cited. One ground

4 that is important is that this executive order is premised

5 upon and animus against the people of a Muslim religion. It

6 targets people only from countries that are predominantly

7 Muslim. People are -- and that's cited as ground 1 in our

8 petition.

9

Ground 2 is due process grounds, that these

10 individuals are being held, detained, interrogated and

11 excluded without procedural due process.

12

Oops, I got those reversed. So Count 2 is the --

13

Thank you, Matt.

14

Count 2 is the religious establishment clause.

15

Count 1 is due process of law.

16

Count 3 is Fifth Amendment equal protection law

17 that a lawful permanent resident returning from England or

18 Canada is treated substantially different from a lawful

19 permanent resident returning from Syria, Iran or Iraq; and

20 that that difference in treatment is premised solely upon

21 their religious and the country that they came from.

22

And these are explained much further in the

23 complaint.

24

Count 4 is under the Administrative Procedures

25 Act, that the Immigration Nationality Act itself prohibits

Judy Bond Certified Federal Court Transcriber
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22 1 discrimination based on race, nationality, place of birth or

2 place of residence; and that the detaining and mistreating

3 of these individuals based on their nationality alone, their

4 nationality and religion, violated due process of law and

5 the Administrative Procedures Act.

6

Finally, Count 5 is the Religious Freedom

7 Restoration Act. That these individuals have been placed a

8 special disability upon them based on their religious

9 beliefs and their country of origin.

10

Those are the five complaints.

11

JUDGE BURROUGHS: Mr. Segal, do you have a copy of

12 Clark vs. Martinez?

13

MR. SEGAL: Your Honor, I do not. I apologize for

14 that. But I could tell that you when I mentioned it, I was

15 referring to -- the case is 543 U.S. 371, and I was

16 discussing footnote 3.

17

And just to relate that point to what we're

18 discussing now, the question, I think, when we talk about

19 these people coming back on flights tomorrow, is whether it

20 is more appropriate for their situation to be addressed

21 through a possible amendment of this case, through a

22 possible motion for a class certification, so that we

23 wouldn't have to continue dealing with mootness questions;

24 or whether it is more appropriately dealt with in a kind of

25 haphazard way where people will be coming to this Court

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23 1 presumably in substantial numbers in the morning.

2

And, you know, our submission is that,

3 notwithstanding the release for reasons that nobody in this

4 courtroom knows of our clients within the last half hour,

5 maybe now it's an hour, there's a perfectly good case in

6 front of the Court in which it can begin by issuing perhaps

7 temporary relief and give everyone -- give the government

8 some time to sort it out, make sure that the Customs and

9 Border Patrol agents are not going to be freelancing

10 starting tomorrow morning, and also giving the petitioner

11 some time to bring additional plaintiffs or a motion for

12 class certification to the Court, if that seems like the

13 appropriate next step in this case.

14

JUDGE BURROUGHS: Hold on. I just pulled up the

15 case. Just let me take a look at the footnote.

16

MR. SEGAL: While Your Honors are reviewing, I

17 should say that that's sort of one aspect of the mootness

18 doctrine is when there's a voluntary release by a defendant.

19

Of course, we're dealing with other issues here,

20 as well, such as the potentially short time period, which

21 makes the harm that we're talking about capable of

22 repetition. We expect repetition as soon as the morning.

23

And, you know, there's a reasonable expectation

24 that this is going to keep happening.

25

MAG. JUDGE DEIN: Well, I think the bigger

Judy Bond Certified Federal Court Transcriber
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24 1 problem, though, is that you have two named plaintiffs, and

2 then you don't have a class allegation here; do you?

3

MR. SEGAL: Well, not as of yet. But I anticipate

4 that we --

5

We might need some time to confer, but we could

6 have a motion for class certification on file tomorrow. You

7 know, I don't think that is the major hold up at the moment,

8 and it may be just a matter of deciding --

9

MAG. JUDGE DEIN: Well, it sounds like you have

10 different plaintiffs with different statuses.

11

MR. SEGAL: Well, that's right, and so --

12

Your Honor's right. We have decisions to make

13 about what the class would be and whether every plaintiff

14 that we've mentioned to you tonight is going to be in that

15 putative class.

16

But I think the larger point is that the fact that

17 some of those plaintiffs might have to be separately

18 represented wouldn't be a reason to dismiss this case where

19 there's a non-moot case before the Court and an opportunity

20 to certify -- to seek to certify a class of

21 similarly-situated petitioners in the morning.

22

MS. DOYLE: And I would point out that my client

23 that's returning tomorrow is in exactly the same position as

24 these two individuals; in that, he's a permanent resident,

25 returning permanent resident.

Judy Bond Certified Federal Court Transcriber
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25

1

And I did also want to just give you the cite so

2 you have it for the parole section which is 8 USC Section

3 1182(d)(5).

4

And as you'll see, if you look at that, the

5 persons that are paroled are subject to re-detention at any

6 point.

7

JUDGE BURROUGHS: Do you have a proposed order

8 that you could email us now?

9

MS. CHURCH: We're working on that.

10

MS. DOYLE: We're having someone write that now.

11

MS. CHURCH: We hope we can do it in like 5, 10

12 minutes. But one of us may have to leave and make a phone

13 call. We also hope he's still awake.

14

MS. DOYLE: He's awake. Can I be excused, Your

15 Honor?

16

JUDGE BURROUGHS: Mr. Farquhar?

17

MR. FARQUHAR: Thank you, Your Honor. Your Honor,

18 as I told my brothers and sisters this evening, I understand

19 where they're coming from. I'm trying to think of some type

20 of solution within the authority that I currently have.

21

The main concern at this point, Your Honor, would

22 fall, in my opinion, on individuals that are arriving at

23 Logan Airport that may fall into the category of what

24 counsel has described, being turned back and having to go

25 back wherever they -- the port wherever arrived from.

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26

1

Perhaps an order from this Court instructing the

2 Custom and Border Patrol that no individual can, in fact, be

3 deported or returned to where they came from without first

4 contacting the U.S. Attorney's Office, which would give us

5 an opportunity at least to address the matter and bring it

6 before this Court.

7

That way we make sure that no one slips between

8 the cracks. I'm sure with this very able legal team in

9 front of Your Honor that's not going to be the case, but

10 this will certainly reassure anything happening of that

11 nature.

12

In the interim, the United States certainly, Your

13 Honor, between today and tomorrow, I'm sure we're going to

14 have many conversations with DC to try to figure out a

15 national approach to try to solve this problem for now.

16

Internationally, Your Honor, I don't have a

17 solution as to what we can do with regard to airlines

18 preventing people from boarding planes overseas. I don't

19 think that this Court has jurisdiction with regard to that

20 issue, but I will also try to address that, as well.

21

MS. CHURCH: We do have a proposed solution for

22 that, Your Honor; and that would be to order Customs and

23 Borders Protection to send an email or a notice to the

24 airlines that they are no longer allowed to exclude people.

25 So our prayer for relief that we're going to be asking for

Judy Bond Certified Federal Court Transcriber
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27 1 is going to include that.

2

JUDGE BURROUGHS: Do we have jurisdiction to do

3 that?

4

MS. CHURCH: We have jurisdiction over CBP, so I

5 would think that we would have jurisdiction over CBP sending

6 out notices to the airlines that they regularly interface

7 with.

8

JUDGE BURROUGHS: Mr. Farquhar?

9

MR. FARQUHAR: I don't know, Your Honor, if CBP

10 can, in fact, instruct overseas airlines on how they manage

11 their business. They certainly, I think, try to follow what

12 CBP says with regard to the policy here in the United

13 States.

14

But I'm not in a position, Your Honor, to be able

15 to tell this Court what will be the result of that type of

16 an order internationally.

17

MS. CHURCH: CBP sets rules and regulations for

18 these airlines to follow when they're admitting people

19 overseas, so the airlines are required to check visas, to

20 check Green cards. They won't allow anybody on the plane.

21 That is United States law that these airlines follow.

22

So if they are instructed that the current law in

23 Boston is that they must allow these individuals on the

24 plane, I think that's well within this Court's jurisdiction

25 to order, and that these airlines would follow.

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28

1

MR. FARQUHAR: Your Honor, what confounds me then,

2 if that is the case, is how we got to this situation in the

3 first place. And unless Customs and Border Patrol sent out

4 a notice stating that individuals will not be allowed in the

5 United States, then the two individuals that are, in fact,

6 here in Logan Airport that were, in fact, released, they

7 wouldn't have come through in the first place. So clearly,

8 that's not the case. I think that what's happening overseas

9 is that the executive order's being interpreted without

10 necessarily guidance from CBP.

11

JUDGE BURROUGHS: Is the situation with

12 jurisdiction, does anybody know, different based on domestic

13 carriers here versus carriers that are internationally

14 based?

15

MR. FARQUHAR: I don't know, Your Honor. There

16 are specialists in DC that would know that.

17

But some of these carriers that are here in the

18 United States may, in fact, be incorporated overseas, and so

19 it's far more complicated than I think what's being stated

20 to the Court at this point.

21

MR. SEGAL: Your Honors, I think there's one thing

22 we can grant, it's that this is complicated.

23

So but I think that points to a particular type of

24 relief, which is that if it's true, as it may well be, that

25 there's nothing that this Court can order an airline to do,

Judy Bond Certified Federal Court Transcriber
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29 1 the best way to handle this is to provide the maximum amount

2 of clarity.

3

So an order, you know, saying to the CBP that it's

4 got to confer with the U.S. Attorney leaves airlines in the

5 dark. I mean, who's supposed to get on a plane in that

6 circumstance? How do you know if your passenger is going to

7 be sent right back on the plane?

8

So that's why if it's really that complicated and

9 if it's really that unclear, the way to bring clarity is to

10 enter a clear order, maybe limited in time, that prohibits

11 the CBP from enforcing the order -- the executive order,

12 from detaining people or sending them back at all.

13

Because then the airlines would know that that is

14 the law that applies to the CBP on people that it sends to

15 Boston.

16

JUDGE BURROUGHS: The detaining and sending back

17 seems easier to manage than the issue of whether or not

18 people get on planes in foreign jurisdictions.

19

Are you now limiting your request to that?

20

MR. SEGAL: Well, I'm saying --

21

I anticipate, and this is easy for me to say,

22 because the people writing the proposed order are not even

23 in the room. So I anticipate that the proposed order is

24 going to contain language about instructing -- ordering the

25 CBP to communicate this information or instruct the

Judy Bond Certified Federal Court Transcriber
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30 1 airlines.

2

I think it is within the Court's jurisdiction to

3 order CBP to make that instruction.

4

But I'm saying even if the Court has reservations

5 about that, it may well be able to achieve a similar result

6 simply by being very clear in the remainder of the relief

7 that the CBP is not entitled to enforce the executive order

8 at all, because that may give the airlines at least the

9 clarity and the comfort that they would need to know who can

10 get on a plane and who can't.

11

MAG. JUDGE DEIN: Well, under either of those

12 scenarios what you're saying, though, is that we shouldn't

13 at this juncture issue an order against the foreign

14 entities. It's here, and then they can choose whether or

15 not they're going to listen. And that goes to Mr.

16 Farquhar's argument that they're interpreting the executive

17 order on their own.

18

MR. SEGAL: Yes. I'm being told that you're

19 exactly right, Your Honor.

20

MAG. JUDGE DEIN: Well, then good.

21

I do have a question, though. And I know you're

22 on the spot, Mr. Farquhar, but there's sort of an assumption

23 that the complaint is valid -- that the arguments raised in

24 the complaint are correct, as a matter of law.

25

Is there anything that you want to address on the

Judy Bond Certified Federal Court Transcriber
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31 1 merits that this executive order is illegal?

2

MR. FARQUHAR: Your Honor, I am not prepared at

3 this point. I first got wind of this at about ten o'clock

4 at an engagement party. That glass of wine quickly went

5 sour, because I had to put that away. So I am not,

6 unfortunately, as up to speed as my brothers and sisters are

7 here. I wish I was, but I'm just not.

8

There are people in the United States Government

9 right now that are sifting through this and trying to make

10 heads or tails of what's going on and trying to figure out

11 some kind of a solution before tomorrow. But we're just not

12 in that position at this point.

13

All we know is that we have an executive order.

14 At this point we're bound by the executive order. And what

15 I'm trying to do, Your Honor, is trying to prevent what has

16 happened this evening from happening again tomorrow morning,

17 tomorrow afternoon.

18

I am not prepared to deal with the larger picture,

19 which is what is happening overseas internationally because

20 of this executive order.

21

MAG. JUDGE DEIN: Thank you.

22

MR. FARQUHAR: Thank you.

23

MAG. JUDGE DEIN: And what's the schedule set by

24 the other courts?

25

First of all, did anybody get ahold of the

Judy Bond Certified Federal Court Transcriber
508.984.7003

32 1 Virginia order? I understand --

2

MS. CHURCH: We found it on the New York Times --

3 all of our -- all of our phones, our iPads, they're all

4 dead, because this has been going on all day. But we know

5 it's attached to a New York Times article, but none of us

6 could get it pdf'ed for the Court. I'm sure by tomorrow we

7 could figure that out.

8

MAG. JUDGE DEIN: And what's the schedule that was

9 set in New York for the next hearing? Do you know?

10

MR. SEGAL: It didn't say, Your Honor.

11

MS. CHURCH: That actually happened while we were

12 driving to the courthouse.

13

MR. SEGAL: Your Honor, I think that the

14 difference is that there's no schedule in New York, but

15 there's this injunction that's in place and is indefinite;

16 whereas, in Virginia my understanding is that it's a

17 temporary seven-day order.

18

MAG. JUDGE DEIN: Okay.

19

JUDGE BURROUGHS: So I think our suggestion at the

20 moment is that we take a short recess, we confer amongst

21 ourselves. You all get your draft order in draft, show it

22 to Mr. Farquhar, and we'll reconvene in however long that

23 takes.

24

MAG. JUDGE DEIN: I think it will be better to be

25 able to work off of what your proposed language is.

Judy Bond Certified Federal Court Transcriber
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33

1

MS. CHURCH: Right. Hopefully that will be done

2 --

3

MAG. JUDGE DEIN: It makes more sense.

4

MS. CHURCH: Right. Thank you.

5

MAG. JUDGE DEIN: All right. We're in recess.

6

MS. CHURCH: Thank you.

7

THE CLERK: All rise.

8

(Court recessed from 12:12:41 a.m. to 1:48:11 a.m.)

9

AFTER RECESS

10

THE CLERK: All rise. This Honorable Court is now

11 in session. Please be seated.

12

JUDGE BURROUGHS: So this is the order we intend

13 to issue under both of our signatures. We wanted to give

14 you an opportunity to comment before we did and check it for

15 accuracy given that it's 1:50 in the morning. We typed it

16 ourselves from scratch. So anything that any of you want to

17 say or comment about it before we go ahead and issue it?

18

MR. SEGAL: Two things, Your Honors. First of

19 all, in the case caption it looked like the word "Donald" is

20 spelled --

21

JUDGE BURROUGHS: That's been corrected.

22

MR. SEGAL: Okay. So perhaps more importantly, we

23 assume that the Court has in mind certain proceedings that

24 might come after their order, and particularly given Mr.

25 Farquhar's argument as to mootness. If the Court has any

Judy Bond Certified Federal Court Transcriber
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34 1 instructions for us as to how it wishes the case to proceed

2 between now and seven days from now in light of the status

3 of the petitioners, we would welcome that guidance.

4 Otherwise, we'll huddle up and look at our next steps in

5 light of that.

6

JUDGE BURROUGHS: Well, the order includes a

7 provision that you need to file an amended complaint by

8 close of business on Monday.

9

MR. SEGAL: Yes, Your Honor. If Your Honors'

10 order is followed, however, between now and close of

11 business on Monday, we don't it exactly know if people will

12 be detained.

13

I take it then the Court would be open to sort of

14 a variety of different potential plaintiffs in that

15 circumstance.

16

JUDGE BURROUGHS: Yes. But you'll file a draft

17 complaint, and they'll have an opportunity to respond to it

18 at the hearing.

19

MAG. JUDGE DEIN: It would be the plaintiffs who

20 would be potentially detained under the executive order.

21

MR. SEGAL: Perhaps so, Your Honor. Perhaps so,

22 yes.

23

JUDGE BURROUGHS: Mr. Farquhar?

24

MR. FARQUHAR: Your Honor, there's no objection

25 from the United States.

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35

1

JUDGE BURROUGHS: Okay. Then we will go ahead and

2 issue this order as it's currently drafted. You'll file

3 your amended complaint sometime on Monday, and we'll

4 schedule a hearing for sometime within the next seven days.

5 Okay?

6

MS. CHURCH: Yes, Your Honor.

7

MR. SEGAL: Thank you, Your Honor.

8

JUDGE BURROUGHS: Anything else tonight?

9

MS. CHURCH: Thank you Your Honors.

10

MR. SEGAL: Thank you very much, Your Honor.

11

MS. DOYLE: Thank you so much for coming in.

12

THE CLERK: All rise. This hearing is in recess.

13

(Court adjourned at 1:51:53 a.m.)

14

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36

1

CERTIFICATION

2

I, Judy Bond Gonsalves, a court approved transcriber,

3 certify that the foregoing is a correct transcript from the

4 official electronic sound recording of the proceedings in

5 the above-entitled matter.

6

7

8 Judy Bond
9

January 30, 2017

10

11

12

13

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15

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Judy Bond Certified Federal Court Transcriber
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 Case 1:17-cv-10154-NMG Document 3 Filed 01/29/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MAZDAK POURABDOLLAH TOOTKABONI and ARGHAVAN LOUHGHALAM,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WILLIAM MOHALLEY, Boston Field Director, CBP,
Respondents.

Case No. 17-cv-10154 Date: January 28, 2017

PROPOESED ORDER
Petitioners respectfully request to enter the following order: 1. Issue an injunction ordering Respondents not to detain, remove, or interrogate any individual solely on the basis of the Executive Order. 2. Adopt the decision of the Eastern District of New York in its entirety with an amendment to specifically include lawful permanent residents. 3. Enter a judgment declaring that Respondents’ detention of Petitioners is and will be unauthorized by statutes and is contrary to laws of the United States.
1

Case 1:17-cv-10154-NMG Document 3 Filed 01/29/17 Page 2 of 3
4. Award Petitioners reasonable costs and attorney’s fees; 5. Direct Respondents order Customs and Border Protection to contact Airlines that have flights arriving at Logan Airport and inform them of this Court’s order. 6. Grant any other and further relief that this Court may deem fit and proper.

DATED: January 28, 2017 Boston, Massachusetts

Respectfully submitted,
/s/ Derege B. Demissie Derege B. Demissie (BBO#637544) Demissie & Church 929 Mass. Ave., Suite 101 Cambridge, MA 02139 (617) 354-3944
/s/ Kerry E. Doyle Kerry E. Doyle (BBO# 565648) Graves & Doyle 100 State Street, 9th Floor Boston, MA 02109 (617) 216-1248
/s/ Susan Church Susan Church Demissie & Church 929 Mass. Ave., Suite 101 Cambridge, MA 02139 (617) 354-3944

2

Case 1:17-cv-10154-NMG Document 3 Filed 01/29/17 Page 3 of 3 /s/ Matthew R. Segal
Matthew R. Segal (BBO# 654489) Sarah Wunsch Jessie J. Rossman Laura Rotolo Adriana Lafaille ACLU Foundation of Massachusetts 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org
3

 
 Case 1:17-cv-10154-NMG Document 13 Filed 01/30/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MAZDAK POURABDOLLAH TOOTKABONI and ARGHAVAN LOUHGHALAM,
Petitioners, v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WILLIAM MOHALLEY, Boston Field Director, CBP,
Respondents.

Case No.17-10154

ASSENTED-TO MOTION TO EXTEND DEADLINE TO FILE AMENDED COMPLAINT
Petitioners Mazdak Pourabdollah Tootkaboni and Arghavan Louhghalam respectfully move for a two-day extension of their deadline to file an amended complaint. In support of this motion, petitioners state:
1. Petitioners filed a petition for writ of habeas corpus and complaint for declaratory and injunctive relief on January 28, 2017.
2. On an emergency basis, this Court held a hearing on January 28-29, 2017, and issued a temporary restraining order setting a deadline of January 30, 2017, for petitioners to file an amended complaint.

1

Case 1:17-cv-10154-NMG Document 13 Filed 01/30/17 Page 2 of 3

3. Counsel for petitioners have been working diligently to prepare an amended complaint and to respond to overwhelming requests for assistance that have poured in from around the world.
4. Meanwhile, it has been reported that the Commonwealth of Massachusetts intends to move to move to intervene in this case, and we anticipate that such a motion would be filed on or before February 1, 2017.
5. Given these developments and the substantial burdens associated with litigating this case, petitioners will be unable to file an amended complaint on January 30, 2017.
6. Counsel for the petitioners have consulted with counsel for the respondents, and the respondents consent to the relief requested in this motion.
WHEREFORE, petitioners respectfully request that this Court extend by two days, until February 1, 2017, their deadline for filing an amended complaint.

DATED: January 30, 2017 Boston, Massachusetts

Respectfully submitted,
/s/ Kerry E. Doyle Kerry E. Doyle (BBO# 565648) Graves & Doyle 100 State Street, 9th Floor Boston, MA 02109 (617) 216-1248
/s/ Susan Church Susan Church Demissie & Church 929 Mass. Ave., Suite 1 Cambridge, MA 02139 (617) 354-3944

2

Case 1:17-cv-10154-NMG Document 13 Filed 01/30/17 Page 3 of 3

/s/ Matthew R. Segal Matthew R. Segal (BBO# 654489) Sarah Wunsch Jessie J. Rossman Laura Rotolo Adriana Lafaille ACLU Foundation of Massachusetts 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org

CERTIFICATION UNDER LOCAL RULE 7.1

I hereby certify that I have conferred with counsel for the Respondents in an effort to resolve or narrow the issues raised by this motion.

DATED: January 30, 2017

/s/ Matthew R. Segal Matthew R. Segal

CERTIFICATE OF SERVICE
I, Matthew R. Segal, hereby certify that the foregoing document will be filed through the ECF system on January 30, 2017, which will cause counsel for all parties to be electronically served.
Respectfully submitted,
/s/ Matthew R. Segal Matthew R. Segal

3

 
 Case 1:17-cv-10154-NMG Document 14 Filed 01/30/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MAZDAK POURABDOLLAH TOOTKABONI and ARGHAVAN LOUHGHALAM,
Petitioners, v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WILLIAM MOHALLEY, Boston Field Director, CBP,
Respondents.

Case No.17-10154

MOTION TO PERMIT PUBLIC ACCESS TO ELECTRONIC CASE FILES Petitioners Mazdak Pourabdollah Tootkaboni and Arghavan Louhghalam
respectfully move to permit the public to access any filings in the case that are not filed under seal. Notwithstanding any other applicable local rule, petitioners submit that there is substantial public interest in this case and that public access to the electronic case files would benefit the public and the Court.
Counsel for the petitioners have consulted with counsel for the respondents, and the respondents do not consent to the relief requested in this motion.
WHEREFORE, petitioners respectfully request that this Court grant the public electronic access to non-sealed electronic filings in this case.
1

Case 1:17-cv-10154-NMG Document 14 Filed 01/30/17 Page 2 of 3

DATED: January 30, 2017 Boston, Massachusetts

Respectfully submitted,
/s/ Kerry E. Doyle Kerry E. Doyle (BBO# 565648) Graves & Doyle 100 State Street, 9th Floor Boston, MA 02109 (617) 216-1248

/s/ Susan Church Susan Church Demissie & Church 929 Mass. Ave., Suite 1 Cambridge, MA 02139 (617) 354-3944

/s/ Matthew R. Segal Matthew R. Segal (BBO# 654489) Sarah Wunsch Jessie J. Rossman Laura Rotolo Adriana Lafaille ACLU Foundation of Massachusetts 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org

CERTIFICATION UNDER LOCAL RULE 7.1

I hereby certify that I have conferred with counsel for the Respondents in an effort to resolve or narrow the issues raised by this motion.

DATED: January 30, 2017

/s/ Matthew R. Segal Matthew R. Segal

2

Case 1:17-cv-10154-NMG Document 14 Filed 01/30/17 Page 3 of 3 CERTIFICATE OF SERVICE
I, Matthew R. Segal, hereby certify that the foregoing document will be filed through the ECF system on January 30, 2017, which will cause counsel for all parties to be electronically served.
Respectfully submitted, /s/ Matthew R. Segal Matthew R. Segal
3

 
 Case 1:17-cv-10154-NMG Document 25 Filed 01/31/17 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MAZDAK POURABDOLLAH TOOTKABONI and ARGHAVAN LOUHGHALAM,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WILLIAM MOHALLEY, Boston Field Director, CBP,
Respondents.

Case No.17-10154

MOTION BY PLAINTIFFS-INTERVENORS COMMONWEALTH OF MASSACHUSETTS AND UNIVERSITY OF MASSACHUSETTS TO INTERVENE
The Commonwealth of Massachusetts and the University of Massachusetts (collectively, the “Commonwealth”) respectfully move pursuant to Federal Rule of Civil Procedure 24 to intervene as plaintiffs in this action.
Intervention is warranted as of right because the motion is timely and the Commonwealth has strong interests in this litigation. The Executive Order at issue compels the Commonwealth to engage in unlawful, unconstitutional, and economically and socially destructive discrimination; it causes harm to the Commonwealth’s economy by hampering the movement of people and ideas into the state and by discouraging internationally-linked activity in Massachusetts; and it affects the ability of thousands of immigrants, refugees, and asylees to travel to and from Massachusetts. In addition, both the Commonwealth generally and the
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University of Massachusetts have an interest in predictable and lawful immigration policies. The University of Massachusetts, in particular, employs faculty and enrolls students from the countries affected by the Executive Order. These interests will be impaired if the Commonwealth is not permitted to intervene. See Fed. R. Civ. P. 24(a)(2).
In the alternative, the Commonwealth should be granted leave to intervene because its claims challenging the constitutionality of the Executive Order share common questions of law and fact with the petitioners’ complaint. See Fed. R. Civ. P. 24(b)(1)(B). A Proposed Complaint is attached. Pursuant to Local Rule 7.1(b)(1), the grounds for the Commonwealth’s motion are set forth with specificity in the memorandum of law filed herewith.
LOCAL RULE 7.1(A)(2) CERTIFICATION The undersigned counsel for the Commonwealth certify that they have conferred with counsel for petitioners and respondents by telephone on January 31, 2017, to resolve or narrow the issue addressed in this motion. Petitioners assent to the Commonwealth’s motion. WHEREFORE, the Commonwealth of Massachusetts and the University of Massachusetts respectfully request that the Court grant their motion to intervene in this matter.
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Dated: January 31, 2017

Respectfully submitted,
COMMONWEALTH OF MASSACHUSETTS UNIVERSITY OF MASSACHUSETTS
ATTORNEY GENERAL MAURA HEALEY

/s/ Elizabeth N. Dewar

x

Elizabeth N. Dewar, BBO# 680722

Genevieve C. Nadeau, BBO# 677566

Jonathan B. Miller, BBO# 663012

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108

617-963-2204 (Dewar)

617-963-2121 (Nadeau)

617-963-2073 (Miller)

Bessie.Dewar@state.ma.us

Genevieve.Nadeau@state.ma.us

Jonathan.Miller@state.ma.us

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CERTIFICATE OF SERVICE I, Elizabeth N. Dewar, hereby certify that a true copy of the above document, filed through the CM/ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing and paper copies will be sent to those indicated as non-registered participants on this date.

Dated: January 31, 2017

/s/ Elizabeth N. Dewar

x

Elizabeth N. Dewar

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MAZDAK POURABDOLLAH TOOTKABONI and ARGHAVAN LOUHGHALAM,
Plaintiff-Petitioners,
and
COMMONWEALTH OF MASSACHUSETTS, and UNIVERSITY OF MASSACHUSETTS,
Plaintiff-Intervenors,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOMS AND BORDER PROTECTION; JOHN KELLY, Secretary of U.S. Department of Homeland Security; KEVIN K. MCALEENAN, Acting Commissioner of U.S. Customs and Border Protection; and WILLIAM MOHALLEY, Boston Field Director, U.S. Customs and Border Protection,
Defendants.

Case No.17-10154

[PROPOSED] COMPLAINT Ours is a nation of immigrants. Our enduring strength derives in large part from the diversity of our people, our commitment to liberty, including religious liberty, and our abiding respect for our federal Constitution. That strength is being tested by recent federal action targeting friends, neighbors, relatives, and co-workers for no reason other than that they were born in countries associated with Islam. On January 27, 2017, President Donald Trump issued an Executive Order that barred entry into the United States to individuals who are nationals from seven majority-Muslim

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countries. The Executive Order, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” represents a stark and troubling departure from this nation’s founding principles. The Executive Order will prevent or discourage travel and emigration to the Commonwealth from the affected countries and likely other countries as well. The Executive Order will thus hinder the free exchange of information, ideas, and talent between the affected countries and the Commonwealth, including at the Commonwealth’s many educational institutions; will harm the Commonwealth’s life sciences, technology, health care, and other industries, as well as innumerable small businesses throughout the Commonwealth; and will inflict economic harm on the Commonwealth itself. Moreover, and most fundamentally, the Executive Order effectively labels many Massachusetts residents as unworthy of certain rights and immigration benefits and as threats to our society simply on the basis of their religion or nation of origin, and thus unfairly and unreasonably casts a shadow of stigma and fear that will follow them to work, school, and elsewhere.
JURISDICTION AND VENUE 1. This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331 and may enter declaratory relief under 28 U.S.C § 2201(a). 2. Venue properly lies within the District of Massachusetts because a substantial part of the events or omissions giving rise to this action occurred in the District. 28 U.S.C. §§ 1391(b)(2), (e)(1).
PARTIES 3. Petitioner Tootkaboni is an Iranian national and a lawful permanent resident of the United States. He is an Associate Professor at the University of Massachusetts at Dartmouth.
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4. Petitioner Louhghalam is an Iranian national and a lawful permanent resident of the United States. She is an Associate Professor at the University of Massachusetts at Dartmouth.
5. Plaintiff-Intervenor Commonwealth of Massachusetts (the “Commonwealth”) represented by and through its Attorney General, is a sovereign state of the United States. The Commonwealth is home to more than one million immigrants, hosts tens of thousands of international students, and welcomes approximately two thousand refugees each year. The Commonwealth has a significant interest in treating its residents equally, as required by its constitution and laws, and in ensuring that its residents are not excluded from the benefits that flow from participation in the federal system, including the rights and privileges secured by the U.S. Constitution and federal law. The Commonwealth also has a sovereign interest in protecting the health, safety, and well-being of all its residents, including against the special harms caused by discrimination based on race, religion, and national origin.
6. Plaintiff-Intervenor University of Massachusetts (“UMass”) is a public university system with five campuses across the state, including a medical school and a law school, as well as UMassOnline, its nationally recognized online education consortium. UMass’s mission is to provide an affordable and accessible education of high quality and to conduct programs of research and public service that advance knowledge and improve the lives of the people of the Commonwealth, the nation, and the world.
7. Defendant Donald Trump is the President of the United States. He is sued in his official capacity.
8. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet department of the United States federal government with the primary mission of securing the
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United States. DHS implements and enforces the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq.
9. Defendant 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.
10. Defendant John Kelly is the Secretary of DHS. He is responsible for implementing and enforcing the INA and oversees CBP. He is sued in his official capacity.
11. Defendant Kevin K. McAleenan is the Acting Commissioner of CBP. He carries out CBP’s primary mission, including preventing unlawful entry of persons into the United States. He is sued in his official capacity.
12. Defendant William Mohalley is the Director of the Boston Field Office of CBP, which is responsible for taking custody of and interrogating any persons from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen arriving in the Commonwealth through Logan Airport. He is sued in his official capacity.

The Executive Order

STATEMENT OF FACTS

13. As a candidate and as President of the United States, Donald Trump has embraced and advanced extreme anti-Muslim views. By issuing the Executive Order, he is attempting to give those views the imprimatur and force of law.
14. On December 7, 2015, for example, candidate Trump issued a press release calling for “a total and complete shutdown of Muslims entering the United States.”

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15. On June 13, 2016, candidate Trump reiterated his promise to ban all Muslims entering this country until “we as a nation are in a position to properly and perfectly screen those people coming into our country.”
16. On January 27, 2017, seven days after being sworn in as the 45th President of the United States, President Trump signed the Executive Order.
17. During the signing ceremony, President Trump stated that the purpose of the Executive Order was to “establish[] new vetting measures to keep radical Islamic terrorists out of the United States of America.” He continued, “We don’t want them here.”
18. Purportedly in response to the threat of terrorism committed by foreign nationals, the Executive Order directs a variety of changes to the manner and extent to which non-citizens may seek and obtain entry to the United States as well as renewal of their statuses and visas once present in the United States.
19. Among other things, the Executive Order imposes a 120-day moratorium on the United States refugee resettlement program as a whole; provides that refugee admissions, once resumed, should prioritize members of a “minority religion” in their countries of origin who are facing “religious-based persecution”; and proclaims that “the entry of nationals of Syria as refugees is detrimental to the interests of the United States,” thus singling out Syrian refugees for an indefinite “suspension” of their admission to the country.
20. Section 3(c) of the Executive Order asserts, without explanation, “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.” Accordingly, effective immediately, the Executive Order “suspend[ed] entry
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into the United States, as immigrants and nonimmigrants, of such persons for 90 days,” with narrow exceptions not relevant here.
21. There are currently seven countries to which section 217(a)(12) of the INA refers: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen (the “affected countries”). Under the terms of the Executive Order, “entry into the United States” of non-citizens from those countries is “suspended” for at least 90 days from the date of the Executive Order.
22. Section 3(a) of the Executive Order also requires “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.” Such benefits include those otherwise available to individuals from the affected countries who are currently present in the United States, such as initial non-immigrant status and work authorization, as well as extensions thereof, and adjustments to permanent resident status.
23. The Commonwealth is informed and believes that U.S. Citizenship and Immigration Services has been instructed not to take any final action on any pending petition or application where the applicant is a citizen of an affected country.
24. Defendants have purported to clarify that lawful permanent resident status would be “a dispositive factor” in “case-by-case determinations” about the entry and admission of noncitizens. However, Defendants have neither rescinded nor amended the Executive Order, which applies by its terms to lawful permanent residents.
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25. The sweeping Executive Order was motivated by animus against the Islamic faith and those who are Muslim. Its purported national security justification is a pretense. The Executive Order is not justified by any rational, legitimate, or bona fide governmental interest.
26. The Executive Order was designed to implement President’s Trump campaign promise to prohibit the entry of Muslims to the United States. Former New York mayor Rudy Giuliani, who has been an advisor to President Trump both during the campaign and since, has revealed that he assembled a group to prepare the Executive Order after President Trump asked him to help him find a “legal[]” way to implement a “Muslim ban.”
27. In favoring refugee admission of religious minorities, the Executive Order also implements President Trump’s policy of favoring Christians over Muslims from Muslimmajority countries. In statements to the press in connection with his issuance of the Executive Order, President Trump stated his intent that the Executive Order help Christian refugees to enter the United States. During a January 27, 2017, interview with the Christian Broadcasting Network, President Trump further confirmed his intent to prioritize Christians in the Middle East for admission as refugees. The Effects of the Executive Order
28. Plaintiff Commonwealth of Massachusetts is home to more than one million immigrants, comprising more than fifteen percent of the state’s population. Among these, thousands were born in the affected countries. See U.S. Census Bureau, http://www.census.gov/quickfacts/table/PST045216/25.
29. In 2015 alone, the Commonwealth accepted hundreds of new refugees and asylees from the affected countries. See Massachusetts Department of Public Health, Refugee Arrivals
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in Massachusetts by Country of Origin, http://www.mass.gov/eohhs/gov/departments/dph/programs/id/public-health-cdc-refugeearrivals.html. It is the policy of the Commonwealth “to promote the full participation of refugees and immigrants as self-sufficient individuals and families in the economic, social, and civic life of the commonwealth.” Mass. Gen. Laws ch. 6, § 205.
30. The Commonwealth is also home to hundreds, if not thousands, of small businesses, large corporations, non-profit organizations, public and private hospitals, and colleges and universities that will be affected by the Executive Order. These institutions employ and enroll individuals from the affected countries and rely on their expertise, skill, labor, and other contributions to our civic society and economy. These institutions also engage in a constant exchange of information, personnel, and ideas with international partners and collaborators. Such exchanges with institutions, organizations, businesses, and persons in affected countries will be hampered or precluded altogether by the Executive Order.
31. The Executive Order will thus affect these organizations’ operations and productivity, in turn adversely affecting the Commonwealth’s overall competitiveness, including vis-à-vis international competitors who will become more attractive locations for investment, conferences, meetings, and other engines of economic growth. In turn, these harms will reduce the Commonwealth’s tax and other revenues.
32. In higher education and the health care industry in particular, the Commonwealth depends upon the unique specialized knowledge and experience of foreign nationals, including from the affected countries, as doctors, scholars, teachers, and other contributors to these institutions.
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33. The Commonwealth’s students, faculty, researchers, clinical professionals, and other employees who are affected by the Executive Order cannot leave the United States without risking the inability to return to work or school. These individuals are thus unable to attend academic and professional conferences, seminars, and other gatherings outside of the United States. They are also forced to choose between risking the inability to return and forgoing travel to visit their families and friends; to care for sick relatives; to attend weddings, funerals, and other important family events; to pursue professional development and opportunities; and for other reasons.
Particular Effects on the University of Massachusetts—Employees 34. The Commonwealth supports an extensive system of twenty-nine public colleges and universities, including UMass. 35. Among its faculty, UMass employs individuals from the affected countries who hold non-immigrant visas or have lawful permanent residence in the United States. These include Petitioners Tootkaboni and Louhghalam, who are lawful permanent residents and associate professors at the University of Massachusetts at Dartmouth. 36. In addition to Petitioners Tootkaboni and Louhghalam, UMass employs approximately 160 faculty, researchers, and staff from the affected countries. These include employees who are lawful permanent residents like Petitioners Tootkaboni and Louhghalam, as well as employees who hold visas, including H-1B visas (for specialty, highly-skilled occupations) and J-1 visas (for exchange visitors in professor, researcher, and physician classifications).
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37. Because the Executive Order appears to restrict immigration benefits available even to individuals from the affected countries already lawfully present in the United States, many of those UMass employees may soon be unable to extend their current work authorizations adjudicated in the United States by DHS through U.S. Citizenship and Immigration Services. In fact, of the approximately 160 UMass employees from the affected countries, approximately 120 have temporary statuses or visas that will have to be renewed or extended.
38. If those 120 employees cannot renew or extend their visas or statuses, UMass cannot lawfully employ them.
39. The resulting termination of employment, while undoubtedly most grievous for the employees, would also cause harm to UMass. It would force UMass to remove the employees from its payroll and force UMass to expend time and resources on replacing them. In the case of academic positions, replacing the employees would require following an extensive search process that could mean vacancies could remain open for months or entire semesters.
40. In order to manage its operations effectively, UMass requires certainty regarding which faculty members will be available to teach courses well in advance of the beginning of a semester. With the Executive Order in place, UMass will be unable to hire certain faculty, lecturers, or visiting scholars from the affected countries because they may be unable to fulfill their teaching obligations.
Particular Effects on the University of Massachusetts—Students 41. UMass has approximately 350 students who are nationals of the affected countries currently enrolled in its graduate and undergraduate programs, including lawful permanent
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residents, refugees, and asylees, as well as students in the following non-immigrant visa classifications: F-1 visas (for international students); J-1 visas (for exchange visitors in student classifications); and TPS visas (temporary protected status for Syrians). Among these are students who have been unable to return to the United States since leaving the country for lawful reasons and are now uncertain of their ability ever to return.
42. UMass regularly receives applications from prospective students who are nationals of the affected countries. Indeed, UMass has already extended offers of admission for the 2017-2018 academic year to prospective undergraduate and graduate students who are nationals of these countries.
43. As a result of the Executive Order, UMass will be forced to decline future applicants from the affected countries, because UMass needs to be able to know in advance how many students will be enrolling in order to predict course enrollments, forecast tuition receipts, and allocate teaching staff and classrooms.
Particular Effects on the University of Massachusetts—Medical School 44. The Executive Order will also harm the University of Massachusetts Medical School, which is the Commonwealth’s public academic health sciences center. The medical school employs at least 15 people who are nationals of the affected countries and who are in the United States on visas or as lawful permanent residents. These include physicians, research faculty, medical resident physicians in training, and post-doctoral researchers. Like all UMass employees, if these employees cannot renew or extend their visas or statuses, the medical school cannot lawfully employ them and may suffer decreased staffing as a result.
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45. The medical school has also extended pending job offers to two Iranian nationals. Due to the Executive Order, their visa applications will be delayed and may not be processed at all.
46. The medical school is especially well-respected for educating primary care physicians, a particular need in the Commonwealth. Residency positions are often filled by physicians from other countries, including the affected countries. The medical school currently has six medical residents from the affected countries under employment contracts with the Commonwealth. If these residents are unable to renew or extend their visas or statuses, UMass will be unable to continue to employ them, and UMass will be left with unfilled positions in its years-long programs for training physicians, including primary care physicians. If the residents are unable to complete their medical residencies, they will not be able to become licensed physicians to serve the public.
Effects on the Commonwealth as a Whole 47. The Executive Order compels the Commonwealth to engage in unlawful, unconstitutional, and economically and socially destructive discrimination by requiring it to take national origin and religion into account in determining to whom to extend employment and educational opportunities. The Commonwealth and its agencies will effectively be commanded to engage in invidious discrimination, in violation of the Commonwealth’s intrinsic sovereignty and longstanding constitutional commitment to due process and equal protection of the laws. The Commonwealth has a compelling interest in avoiding subjecting individuals to violations of their constitutional rights or otherwise unlawful discrimination, including in the
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Commonwealth’s employment practices and administration of its programs more generally. The Commonwealth also has an interest in avoiding liability for such constitutional violations and unlawful discrimination.
48. The Executive Order disrupts the operations of Commonwealth agencies and public institutions, including UMass, that educate, employ, and serve persons from the affected countries.
49. The Executive Order will inflict concrete financial injury on the Commonwealth as a whole. A leader in education, health care, life sciences, technology, and finance, Massachusetts depends on robust intellectual capital fostered through a strong educational system and lawful immigration policies. Immigrants are also leading entrepreneurs in businesses small and large across the Commonwealth.
50. By unlawfully, arbitrarily, and unconstitutionally singling out persons who are nationals of the affected countries and impeding or precluding them from traveling, immigrating, or returning to work or school in Massachusetts, regardless of the skills they have to bring or the ties they already have with our residents, the Executive Order will financially harm the Commonwealth, its economy, and its people.
51. More specifically, the Commonwealth until now has been an attractive destination for companies in the life sciences, technology, finance, health care, and other industries, as well as an attractive destination for students, scholars, tourists, and entrepreneurs. The Executive Order will adversely affect all of these activities, because it hampers the movement of people and ideas into Massachusetts. It restricts movement of persons from seven nations and precludes them from coming to Massachusetts, including for its world-leading technology and health care.
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52. The Executive Order also discourages internationally-linked activity in Massachusetts more generally. Investors, scholars, tourists, and others all may be less likely to visit Massachusetts, plan a conference in Massachusetts, or invest in Massachusetts, because they will know that Muslims from the affected countries are excluded. Notably, the number of affected countries may be expanded in the future, creating further uncertainty and disruption.
53. The Executive Order will thus decrease the Commonwealth’s current high international standing in all of these areas, reducing investment and industry here; decrease the number of major international conferences and meetings that are held in the Commonwealth as well as the associated spending by visitors; and reduce travel to the Commonwealth by students, scholars, and tourists, all of whom also spend money in the Commonwealth during their stays here. All of these effects will harm the Commonwealth’s economy as a whole, including by decreasing tax and other revenues.
54. Finally, the Executive Order prevents the Commonwealth from promoting and enforcing a regime of non-discrimination under its state constitution and laws. For example, employers in Massachusetts, including the Commonwealth itself, are prohibited by state law from taking national origin and religion into account in determining to whom to extend employment and other opportunities. The Executive Order now mandates that discrimination, and thus conflicts with the Commonwealth’s historic protection of civil rights and religious freedom.
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CAUSES OF ACTION COUNT ONE
EQUAL PROTECTION 55. The Commonwealth realleges and incorporates by reference each of the foregoing paragraphs of this Complaint. 56. The Due Process Clause of the Fifth Amendment prohibits the federal government from denying equal protection of the laws. 57. The Executive Order targets individuals for discriminatory treatment based on their country of origin and religion, without lawful justification. 58. The Executive Order was motivated by animus and a desire to harm a particular group, specifically, Muslims. 59. The discriminatory terms and application of the Executive Order are arbitrary and not justified by federal interests. 60. Through these actions, Defendants have violated the Fifth Amendment’s guarantee of equal protection of the laws. 61. Defendants’ violation causes ongoing harm to Commonwealth residents. 62. Defendants’ violation of Commonwealth residents’ due process rights causes harm to the Commonwealth itself.
COUNT TWO PROCEDURAL DUE PROCESS 63. The Commonwealth realleges and incorporates by reference each of the foregoing paragraphs of this Complaint.
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64. The Due Process Clause of the Fifth Amendment prohibits the federal government from depriving individuals of their liberty interests without due process of law.
65. Where Congress has granted statutory rights and authorized procedures applicable to non-citizens, due process rights attach to those statutory rights.
66. The Executive Order conflicts with the statutory rights and procedures directed by Congress. In issuing and implementing the Executive Order, Defendants have violated the procedural due process guarantees of the Fifth Amendment.
67. Defendants’ violation is causing ongoing harm to Commonwealth residents. 68. Defendants’ violation of Commonwealth residents’ procedural due process rights is causing ongoing harm to the Commonwealth itself.
COUNT THREE ESTABLISHMENT CLAUSE 69. The Commonwealth realleges and incorporates by reference each of the foregoing paragraphs of this Complaint. 70. The Establishment Clause of the First Amendment prohibits the federal government from officially preferring one religion over another. 71. The Executive Order is intended to disfavor Islam and favor Christianity. In particular, Section 5(b) of the Order directs federal officials “to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” In the affected countries, Christianity is a minority religion, and Islam is not a minority religion.
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72. President Trump has made repeated public statements that the Executive Order was designed to prohibit the entry of Muslims to the United States. The President has also publicly promised that preferential treatment will be given to Christians under the Executive Order.
73. Through their actions described above, including in issuing and enforcing the Executive Order, Defendants have violated the Establishment Clause.
74. Defendants’ violation causes ongoing harm to Commonwealth residents. 75. Defendants’ violation causes ongoing harm to the Commonwealth itself.
COUNT FOUR SUBSTANTIVE VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT
76. The Commonwealth realleges and incorporates by reference each of the paragraphs of this Complaint.
77. The Administrative Procedure Act requires this Court to hold unlawful agency actions that are unconstitutional, arbitrary and capricious, or otherwise contrary to law. 5 U.S.C. § 706(2).
78. In implementing the Executive Order, federal agencies have taken actions that are unconstitutional, as alleged herein.
79. In implementing the Executive Order, federal agencies have taken actions that are arbitrary and capricious, as alleged herein.
80. In implementing the Executive Order, federal agencies have taken actions that are otherwise contrary to laws passed by the U.S. Congress, including the INA.
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81. The Executive Order is contrary to the INA’s prohibition on discrimination in issuance of immigrant visas based on a person’s race, nationality, place of birth, or place of residence. 8 U.S.C. § 1152(a)(1)(A).
82. The Executive Order, by its terms, also applies to lawful permanent residents, and purports to deny them entry. The Petitioners, both lawful permanent residents, were detained for hours at Logan Airport as a result of the Executive Order. The INA, however, provides that lawful permanent residents “shall not be regarded as seeking an admission into the United States for purposes of the immigration laws” unless certain exceptions apply. 8 U.S.C. § 1101(a)(13)(C).
83. Moreover, the INA and implementing regulations, including 8 U.S.C. § 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 certain individuals entering the country to apply for asylum, withholding of removal, and CAT relief. But the Executive Order does not permit individuals from the affected countries to apply for such relief.
84. Because the Executive Order and Defendants’ actions in implementing and enforcing the Executive Order are unconstitutional, arbitrary, capricious, and otherwise not in accordance with law, the Executive Order and Defendants’ actions violate the Administrative Procedure Act and must be held unlawful and set aside. 5 U.S.C. § 706(2).
85. Defendants’ violations cause ongoing harm to Commonwealth residents. 86. Defendants’ violations cause ongoing harm to the Commonwealth itself.
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COUNT FIVE PROCEDURAL VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT
87. The Commonwealth realleges and incorporates by reference each of the foregoing paragraphs of this Complaint.
88. The Administrative Procedure Act requires the Court to “hold unlawful and set aside” agency action found to be, among other things, “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
89. The Administrative Procedure Act also requires that federal agencies conduct formal rulemaking before engaging in action that adversely affects substantive rights.
90. In implementing the Executive Order, federal agencies have changed the substantive criteria by which individuals from the affected countries may enter the United States. Federal agencies did not follow the procedures required by the Administrative Procedure Act before taking action adversely affecting these substantive rights.
91. Defendants’ violation causes ongoing harm to Commonwealth residents. 92. Defendants’ violation causes ongoing harm to the Commonwealth itself.
COUNT SIX TENTH AMENDMENT 93. The Commonwealth realleges and incorporates by reference each of the foregoing paragraphs of this Complaint. 94. The Tenth Amendment to the United States Constitution expressly reserves to the states all powers except those limited powers granted to the federal government. 95. The Tenth Amendment ensures the division of powers between the states and federal government that is necessary for the dual sovereignty of the federal system.
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96. The Tenth Amendment preserves for the states their sovereign authority, including their authority not to engage in unconstitutional discrimination even if dictated by federal statute, federal regulation, executive order, or other announcement of federal policy, and their authority to enforce their own state laws unless validly preempted by federal law.
97. As a result of the Executive Order, the Commonwealth, in determining to whom to extend employment and educational opportunities, must unlawfully discriminate against individuals from the affected countries, because those individuals will be subject to the Executive Order’s unlawful and unconstitutional restrictions.
98. The Executive Order requires the Commonwealth and its agencies to take part in invidious discrimination. This compelled conduct is contrary to the Massachusetts Constitution, Amendment Article 106, which provides that “[e]quality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.” This compelled conduct is also contrary to Massachusetts’ anti-discrimination laws, including Mass. Gen. Laws ch. 151B, § 4, and Mass. Gen. Laws ch. 93, § 102.
99. The Executive Order precludes the Commonwealth and its agencies from enforcing Massachusetts’ anti-discrimination laws against employers and others who act consistently with the unlawful Executive Order.
100. The Executive Order constitutes impermissible interference with the sovereignty of the Commonwealth of Massachusetts and exceeds any of the federal government’s enumerated powers.
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COUNT SEVEN DECLARATORY JUDGMENT 101. The Commonwealth realleges and incorporates by reference each of the foregoing paragraphs of this Complaint. 102. There is an actual controversy of sufficient immediacy and concreteness relating to the legal rights and duties of the Commonwealth and the proper legal relations between the Commonwealth and Defendants to warrant relief under 28 U.S.C. § 2201. 103. The harm to the Commonwealth as a direct result of the Executive Order is sufficiently real and imminent to warrant the issuance of a declaratory judgment clarifying the legal relations of the parties.
PRAYER FOR RELIEF WHEREFORE, Proposed Plaintiff-Intervenors Commonwealth of Massachusetts and the University of Massachusetts pray that this Court grant the following relief: (1) Enter a judgment declaring that the Executive Order as a whole, and each of its specific provisions, violates federal law and is otherwise unconstitutional; (2) Enjoin Defendants from implementing or enforcing the Executive Order and from detaining any individual and/or barring or removing any individual from the United States pursuant to the Executive Order; and (3) Grant any other and further relief that this Court may deem fit and proper.
21

Case 1:17-cv-10154-NMG Document 25-1 Filed 01/31/17 Page 22 of 22

Dated: January 31, 2017

Respectfully submitted,
COMMONWEALTH OF MASSACHUSETTS UNIVERSITY OF MASSACHUSETTS
ATTORNEY GENERAL MAURA HEALEY

/s/ Elizabeth N. Dewar

x

Elizabeth N. Dewar, BBO# 680722

Genevieve C. Nadeau, BBO# 677566

Jonathan B. Miller, BBO# 663012

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108

617-963-2204 (Dewar)

617-963-2121 (Nadeau)

617-963-2073 (Miller)

Bessie.Dewar@state.ma.us

Genevieve.Nadeau@state.ma.us

Jonathan.Miller@state.ma.us

22

 
 Case 1:17-cv-10154-NMG Document 26 Filed 01/31/17 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MAZDAK POURABDOLLAH TOOTKABONI and ARGHAVAN LOUHGHALAM,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WILLIAM MOHALLEY, Boston Field Director, CBP,
Respondents.

Case No.17-10154

MEMORANDUM IN SUPPORT OF MOTION BY COMMONWEALTH OF MASSACHUSETTS AND UNIVERSITY OF MASSACHUSETTS TO INTERVENE
The Commonwealth of Massachusetts and the University of Massachusetts (“UMass”) (collectively, the “Commonwealth”) submit this memorandum of law in support of their motion to intervene as plaintiffs in this action. For the reasons set forth below, allowing the Commonwealth to intervene is necessary to fully protect its own interests in this litigation and will not prejudice any other party. Accordingly, the Commonwealth’s motion to intervene as a matter of right or, in the alternative, by permission, should be allowed.
BACKGROUND This case, which was initiated in the late hours of January 28, 2017, arose out of the unconstitutional detention of two lawful permanent residents of the United States upon their arrival at Logan International Airport. Acting pursuant to the Executive Order at issue in the
1

Case 1:17-cv-10154-NMG Document 26 Filed 01/31/17 Page 2 of 12
Proposed Complaint, Customs and Border Protection detained Mazdak Pourabdollah Tootkaboni and Arghavan Louhghalam in secondary screening for several hours, and took this action for no reason other than that these two professors at UMass-Dartmouth are nationals of Iran. This Court issued a temporary restraining order early on January 29, 2017, enjoining the Defendants from removing or detaining individuals based solely on the Executive Order. This Court’s order was one of three restraining orders issued by federal courts during the first weekend after the Executive Order went into effort.
The confusion, disruption, and fear caused by the Executive Order necessitate swift action by the courts. Since its issuance, many individuals inside and outside of the country have suffered violations of their legal and constitutional rights. Businesses, hospitals, universities, and other entities have been required to make contingency plans, prepare for operational disruptions, and scramble to return their personnel to the country. Respondents have purported to clarify that the Executive Order does not apply to lawful permanent residents (even though they are expressly covered by the Executive Order), but have not taken any official steps to amend or rescind the Executive Order.
The Commonwealth seeks to intervene in order to assert its unique interests in this litigation. As set forth in detail in the Proposed Complaint, the Executive Order affects the Commonwealth in at least four ways: (1) it disrupts the operations of Commonwealth agencies and public institutions, including UMass and its medical school, that educate, employ, and serve persons from the affected countries, including, in particular, UMass’s ability to staff and retain faculty positions, take on international scholars, admit students into both undergraduate and graduate programs, and permit its faculty and students from the affected countries to leave the United States on university business; (2) it similarly disrupts the operations of small and large
2

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Massachusetts businesses and industries that employ or recruit individuals from the affected countries, and thus places the state at a competitive disadvantage with other international centers of life sciences, education, and medicine, directly harming the overall economy and public fisc of the Commonwealth; (3) it requires the Commonwealth, through its agencies and other institutions, to make employment and admission decisions that are dictated by the Executive Order, in violation of state anti-discriminations laws and the state and federal constitutions; and (4) it precludes the Commonwealth and its agencies from enforcing Massachusetts’ antidiscrimination laws against employers and others who act consistently with the unlawful Executive Order. The Executive Order and actions taken to enforce it by federal officials are unconstitutional, arbitrary and capricious, and otherwise contrary to law. The Commonwealth seeks an order declaring the Executive Order unconstitutional and permanently enjoining its enforcement.
ARGUMENT I. THE COMMONWEALTH IS ENTITLED TO INTERVENE AS OF RIGHT.
The Commonwealth satisfies the requirements for intervention as of right. Rule 24(a)(2) of the Federal Rules of Civil Procedure allows intervention as of right for any party that “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.”
The First Circuit applies the following four-factor test for intervention by right under Fed. R. Civ. P. 24(a)(2): “a would-be intervenor must demonstrate that: (i) its motion is timely; (ii) it has an interest relating to the property or transaction that forms the foundation of the ongoing action; (iii) the disposition of the action threatens to impair or impede its ability to protect this
3

Case 1:17-cv-10154-NMG Document 26 Filed 01/31/17 Page 4 of 12
interest; and (iv) no existing party adequately represents its interest.” Ungar v. Arafat, 634 F.3d 46, 50 (1st Cir. 2011) (citation omitted). The Commonwealth satisfies each of these factors.
A. The Commonwealth’s Motion is Timely. The Commonwealth has moved in very timely fashion to intervene. Timeliness, which “is of first importance,” United Nuclear Corp. v. Cannon, 696 F.2d 141, 143 (1st Cir. 1982), is determined by considering “the totality of the relevant circumstances,” Banco Popular de Puerto Rico v. Greenblatt, 964 F.2d 1227, 1230 (1st Cir. 1992) (citations omitted). A motion to intervene is timely if it is “filed promptly after a person obtains actual or constructive notice that a pending case threatens to jeopardize his rights.” R & G Mortgage v. Fed. Home Loan Mortg. Corp., 584 F.3d 1, 7 (1st Cir. 2009). That has clearly occurred here. The Commonwealth is moving to intervene in this case’s early infancy: only four days after the President issued the Executive Order (January 27), and three days after petitioners filed suit (January 28). Allowing the Commonwealth to assert its interests at this early stage will not complicate or delay proceedings or otherwise create any “foreseeable prejudice to the existing parties.” Navieros Inter–Americanos, S.A. v. M/V Vasilia Exp., 120 F.3d 304, 321-22 (1st Cir. 1997). By contrast, the Commonwealth would suffer substantial prejudice were it not allowed to intervene in this action to protect its important interests set out above. See supra at 2-3 and infra at 4-7. Under these circumstances, the Commonwealth’s motion to intervene is timely. B. The Commonwealth Has Important Interests in this Action. The Commonwealth has sufficient interests in this action to justify intervention as of right. To satisfy this second requirement, the movant must identify an interest “relating to the property or transaction that is the subject of the action.” Fed. R. Civ. P. 24(a)(2). The interest must be “direct” and “significantly protectable,” Ungar, 634 F.3d at 51 (quoting Donaldson v.
4

Case 1:17-cv-10154-NMG Document 26 Filed 01/31/17 Page 5 of 12
United States, 400 U.S. 517, 531 (1971)), but it need not “be of a legal nature identical to that of claims asserted in the main action,” In re Lopez Soto, 764 F.2d 23, 26 (1st Cir. 1985) (citation omitted).
First, as the Commonwealth’s proposed Complaint sets out in detail, the Commonwealth, its agencies, and UMass in particular are suffering and will continue to suffer disruption and other harms from the Executive Order. UMass is facing multiple immediate operational and business disruptions. Indeed, the two original petitioners in this action, unlawfully detained at Logan Airport, are associate professors at UMass Dartmouth who were returning home from an academic conference. Thus, the travel ban immediately and adversely affects important state business.
At its state colleges and universities, the Commonwealth depends upon the unique specialized knowledge and experiences of foreign nationals, including those from the affected countries, as scholars, teachers, employees, and contributors to our university communities, teaching hospitals, and other educational institutions. By limiting the ability of individuals to leave the United States and return as otherwise permitted by law—and as contemplated when they initially were employed or enrolled—the Executive Order deprives UMass and other educational institutions of the full benefit of their contributions to the education of our students and workforce. The students, faculty, researchers, clinical professionals, and other employees who are adversely affected by the Executive Order are effectively unable to leave the United States without risking the inability to return to work or school. These individuals are thus unable to attend academic and professional conferences, seminars, and other academic gatherings
5

Case 1:17-cv-10154-NMG Document 26 Filed 01/31/17 Page 6 of 12
outside of the United States, which interferes with their academic work and frustrates the mission of the university system.
In addition, UMass needs to know that faculty members will be available to teach courses. With the Executive Order in effect, UMass will be unable to hire faculty, lecturers, or visiting scholars from the affected countries who may be unable to fulfill such teaching obligations as a result of the Executive Order. If the approximately 120 UMass employees from the affected countries with temporary status lose their work authorization, UMass will be required to expend additional time and resources to fill their jobs and will be at risk of having no faculty to teach certain courses for at least a period of time. UMass will also suffer effects relating to its admission of incoming students, as well as the placement of medical residents at UMass-Memorial Medical Center. Given the breadth and substantial impact of the Executive Order, the Commonwealth’s interests are sufficiently significant to warrant intervention.
Second, hundreds, if not thousands, of Massachusetts small and large businesses, nonprofit organizations, public and private hospitals, and colleges and universities are similarly disrupted by the Executive Order. These institutions collectively employ and enroll individuals from the affected countries and rely on their expertise, skill, labor, and other contributions to our economy and civic society. These institutions also engage in a constant exchange of information, personnel, and ideas with international partners and collaborators—exchanges that are hampered or precluded by the Executive Order. By undermining these organizations’ operations and productivity, the Executive Order adversely affects the Commonwealth’s overall economy and competitiveness, including vis-à-vis international competitors that will become
6

Case 1:17-cv-10154-NMG Document 26 Filed 01/31/17 Page 7 of 12
more attractive locations for conferences, meetings, investment, and other engines of economic growth.
Third, sovereign and proprietary interests of the Commonwealth uniquely support its intervention. The Order requires the Commonwealth, in its agencies and universities, to make employment and admission decisions that are dictated by the Executive Order, which is itself an act of unlawful discrimination. And the Executive Order prevents the Commonwealth from promoting and enforcing a regime of non-discrimination under its state constitution and laws with respect to employers and others who act consistently with this unlawful order. Generally, citizens and businesses in Massachusetts, including the Commonwealth itself, are prohibited by state law from taking national origin and religion into account in determining to whom to extend employment and other opportunities. The Executive Order now effectively mandates such discrimination, thereby rescinding the Commonwealth’s historic protection of civil rights and religious freedom. This invasion of sovereignty exceeds any of the federal government’s enumerated powers, and violates the Tenth Amendment.
The breadth and substantial impact of the Executive Order, and in particular its impact on the Commonwealth’s sovereign interests, warrant intervention.
C. The Commonwealth’s Interests Will Be Impaired Absent Intervention. The Commonwealth needs to intervene in order that its interests not be impaired. In addition to establishing a sufficient interest in the subject of the action, the proposed intervenor must demonstrate that disposition of that action may, as a practical matter, “impair[s] or impede[s] its ability to protect this interest.” Fed. R. Civ. P. 24(a)(2). In determining whether this requirement is met, courts consider “the practical consequences of denying intervention.”
7

Case 1:17-cv-10154-NMG Document 26 Filed 01/31/17 Page 8 of 12
Fund for Animals, Inc. v. Norton, 322 F.3d 728, 735 (D.C. Cir. 2003) (citation and internal quotation omitted); accord Daggett v. Comm’n on Governmental Ethics & Election Practices, 172 F.3d 104, 110-11 (1st Cir. 1999) (holding that “‘practical’ test of adverse effect that governs under Rule 24(a)” was “easily satisfied” by showing that proposed intervenor’s interests would be “adversely affected” if lawsuit were lost).
An action by the state Attorney General uniquely protects the interests of the Commonwealth in challenging the Executive Order. In Massachusetts, the Attorney General has a broad statutory and common law mandate to represent the public interest. Attorney General v. Dime Sav. Bank, 413 Mass. 284, 287 (1992). Under Mass. Gen. L. c. 12, §§ 3 and 3E, the Attorney General alone has control over litigation involving the Commonwealth and its agencies and officials, and is uniquely charged with protecting the Commonwealth’s interests in court. Clerk of the Superior Court v. Treasurer & Receiver Gen., 386 Mass. 517, 526 (1982).
An adverse ruling in this litigation would have considerable practical consequences for the Commonwealth. As discussed above, the Executive Order disrupts and interferes with the operations of the state’s colleges and universities, including the recruitment, selection, and retention of faculty and students. By hindering the free exchange of information, ideas, and talent, the Executive Order undermines the Commonwealth’s life sciences, technology, finance, health care, and other industries, thus inflicting economic harm on the Commonwealth itself, including decreased tax and other revenues. The Executive Order also prevents or discourages travel and emigration to the Commonwealth and interferes with the Commonwealth’s sovereign interest in protecting the health, safety, and well-being of all its residents, including against the special harms caused by discrimination based on race, religion, and national origin.
8

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Accordingly, the Commonwealth satisfies the “impairment of interest” requirement for intervention as of right.
D. Existing Parties Do Not Adequately Represent the Commonwealth’s Interests.
Finally, no existing party adequately represents all of the Commonwealth’s interests in this matter. The burden of showing that a proposed intervenor’s interests will not be adequately represented by existing parties is a “minimal” one. See Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972); Maine v. Director, U.S. Fish & Wildlife Serv., 262 F.3d 13, 18 (1st Cir. 2001). The intervenor “need only show that representation may be inadequate, not that it is inadequate.” Conservation Law Found. of N. Eng. v. Mosbacher, 966 F.2d 39, 44 (1st Cir. 1992) (citing Trbovich, 404 U.S. at 538 n.10).
Here, the Commonwealth more than satisfies that minimal burden. Its interests are clearly not represented by defendants, insofar as the federal government seeks to defend the constitutionality of the Executive Order. Furthermore, the Commonwealth’s interests are “sufficiently different in kind or degree from those” of the petitioners. B. Fernandez & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 546 (1st Cir. 2006) (citations omitted). First, the Commonwealth has institutional interests relating to the operation of all its agencies and public institutions, including its public colleges and universities. Second, the Commonwealth is concerned with the economic well-being of the state economy as a whole, including its various business and non-profit sectors in which staff and services are specifically affected by the Executive Order. Finally, the Commonwealth has sovereign interests that no other party could represent. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 520 (2007) (state interests are entitled to “special solicitude”). Consequently, no existing party can be expected to adequately represent the Commonwealth’s specific interests in this matter.
9

Case 1:17-cv-10154-NMG Document 26 Filed 01/31/17 Page 10 of 12
II. IN THE ALTERNATIVE, THE COURT SHOULD EXERCISE ITS DISCRETION TO GRANT PERMISSIVE INTERVENTION. Even if the Court concludes that the Commonwealth does not meet the standard for
intervention as a matter of right, it should nevertheless exercise its discretion to permit the Commonwealth to intervene in this litigation. See, e.g., Morra v. Casey, 960 F. Supp. 2d 335, 338 (D. Mass. 2013) (concluding that while proposed intervenor was not entitled to intervene as of right, “[n]evertheless, the court may allow [the proposed intervenor] to intervene under Rule 24(b)(2)”).
Permissive intervention is appropriate where a party “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Courts have “broad discretion” in deciding whether or not to grant permissive intervention under Rule 24(b). Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 641 (1st Cir. 1989). The First Circuit has articulated three factors to be considered in determining whether permissive intervention is warranted, including whether: “(i) the applicant’s claim or defense and the main action have a question of law or fact in common; (ii) the applicant’s interests are not adequately represented by an existing party; and (iii) intervention would not result in undue delay or prejudice to the original parties.” In re Thompson, 965 F.2d 1136, 1142 n.10 (1st Cir. 1992) (citation omitted).
For the reasons discussed above, the Commonwealth satisfies all three of these considerations. Allowing the Commonwealth to intervene would not delay any aspect of this proceeding nor cause any prejudice to the existing parties. Further, the Commonwealth’s interests are broadly implicated by the unconstitutional Executive Order, and those interests are not adequately represented by the individual petitioners. Indeed, permitting the Commonwealth to present in concrete terms the impact that the Executive Order will have on a broad array of governmental activities will allow the Court to better assess its constitutionality. See Daggett,
10

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172 F.3d at 113 (“The fact that the applicants may be helpful in fully developing the case is a reasonable consideration in deciding on permissive intervention.”) (citation omitted). The Commonwealth should therefore be allowed to intervene by permission.
CONCLUSION For the above-stated reasons, the Commonwealth of Massachusetts and UMass should be allowed to intervene as of right in this matter. In the alternative, the Court, in its discretion, should permit the Commonwealth and UMass to intervene.

Dated: January 31, 2017

Respectfully submitted,
COMMONWEALTH OF MASSACHUSETTS UNIVERSITY OF MASSACHUSETTS
ATTORNEY GENERAL MAURA HEALEY

/s/ Elizabeth N. Dewar

x

Elizabeth N. Dewar, BBO# 680722

Genevieve C. Nadeau, BBO# 677566

Jonathan B. Miller, BBO# 663012

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108

617-963-2204 (Dewar)

617-963-2121 (Nadeau)

617-963-2073 (Miller)

Bessie.Dewar@state.ma.us

Genevieve.Nadeau@state.ma.us

Jonathan.Miller@state.ma.us

11

Case 1:17-cv-10154-NMG Document 26 Filed 01/31/17 Page 12 of 12
CERTIFICATE OF SERVICE I, Elizabeth N. Dewar, hereby certify that a true copy of the above document, filed through the CM/ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing and paper copies will be sent to those indicated as non-registered participants on this date.

Dated: January 31, 2017

/s/ Elizabeth N. Dewar

x

Elizabeth N. Dewar

12

 
 Case 1:17-cv-10154-NMG Document 23 Filed 01/31/17 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ARGHAVAN LOUHGHALAM, et al.,

)

)

Petitioners,

)

)

v.

)

)

DONALD TRUMP, President of the

)

United States, et al.,

)

)

Respondents.

)

Case No. 1:17-cv-10154

NOTICE OF SUPPLEMENTAL AUTHORITY Respondents hereby give notice of legal authority relevant to this litigation: a letter issued on Friday, January 27, 2017, by Edward J. Ramotowski, the Deputy Assistant Secretary for Visa Services at the Department of State. Enclosed is a copy of the letter, which provisionally revokes all visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to certain exceptions, under the authority of 8 U.S.C. §§ 1182(f), 1201(i), and 22 C.F.R. §§ 41.122, 42.82. The Department of State may make changes to the provisional revocation in the future. Respondents will promptly notify the Court if the Department of State makes any such revisions, and will provide a copy of any such document.

Case 1:17-cv-10154-NMG Document 23 Filed 01/31/17 Page 2 of 4

January 31, 2017

Respectfully Submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director, Office of Immigration Litigation District Court Section
GISELA A. WESTWATER Senior Litigation Counsel Office of Immigration Litigation District Court Section
By: s/ Katherine J. Shinners KATHERINE J. SHINNERS DC Bar No. 978141 Trial Attorney U.S. Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 598-8259 Fax: (202) 305-7000 katherine.j.shinners@usdoj.gov
By: s/ Joshua S. Press (w/ permission) JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 Facsimile: (202) 305-7000 e-Mail: joshua.press@usdoj.gov

2

Case 1:17-cv-10154-NMG Document 23 Filed 01/31/17 Page 3 of 4 WILLIAM D. WEINREB, Acting U.S. Attorney District of Massachusetts BY: /s/ Rayford A. Farquhar (w/ permission) RAYFORD A. FARQUHAR BBO No. 560350 U.S. Attorney’s Office 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3284 rayford.farquhar@usdoj.gov BY: /s/ Michael Sady (w/ permission) BBO No. 552934 U.S. Attorney’s Office 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3362 michael.sady@usdoj.gov
3

Case 1:17-cv-10154-NMG Document 23 Filed 01/31/17 Page 4 of 4 CERTIFICATE OF SERVICE
I hereby certify that on January 31, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the District of Massachusetts 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.
s/ Katherine J. Shinners KATHERINE J. SHINNERS Trial Attorney U.S. Department of Justice, Civil Division Office of Immigration Litigation District Court Section
4

Case 1:17-cv-10154-NMG Document 23-1 Filed 01/31/17 Page 1 of 1
United States Department of State
Deputy Assistant Secretcuy for Visa Services Washington, D.C. 20520
January 27, 2017
Upon request of the U.S. Department of Homeland Security and pursuant to sections 212(±) and 221(i) of the Immigration and Nationality Act and 22 CFR 41.122 and 42.82, and in implementation of'section 3(c) of the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals, I hereby provisionally revoke all valid nonimmigrant and immigrant visas of nationals of
' Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to the exceptions
discussed below.
The revocation does not apply to visas in the following nonimmigrant classifications: A-1, A-2, G-1, G-2, G-3, G-4, NATO, C-2, or certain diplomatic visas.
The revocation also does not apply to any visa exempted on the basis of a determination made by the Secretaries of State and Homeland Secmity pursuant to section 3(g) of the Executive Order on a case-by-case basis, and when in the national interest.
This document is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
~~a:=------
Edward J. Ramotowski Deputy Assistant Secretary Bureau ofConsular Affairs Department of State

 
 Case 1:17-cv-10154-NMG Document 69 Filed 02/03/17 Page 1 of 21

United States District Court District of Massachusetts

)

Arghavan Louhghalam et al.

)

)

Plaintiffs,

)

)

v.

)

)

Donald J. Trump, President of )

the United States, et al.

)

)

Defendants.

)

)

Civil Action No. 17-10154-NMG

MEMORANDUM & ORDER

GORTON, J.

This Court was initially asked 1) to issue a writ of habeas

corpus on behalf of by Arghavan Louhghalam and Mazdak

Pourabdollah Tootkaboni, lawful permanent residents who were

detained at Boston Logan International Airport (“Logan”) for

several hours upon arrival from an academic conference outside

the United States and 2) to declare unlawful Executive Order

13,769, promulgated by the President of the United States.

Late in the evening on January 28, 2017, United States

District Judge Allison D. Burroughs and United States Magistrate

Judge Judith G. Dein held a hearing on a motion of Louhghalam

and Tootkaboni for a temporary restraining order. Following

that hearing, Judge Burroughs and Magistrate Judge Dein entered

a temporary restraining order (“TRO”) that, inter alia,

prohibits the detention and/or removal of individuals with

-1-

Case 1:17-cv-10154-NMG Document 69 Filed 02/03/17 Page 2 of 21
approved refugee applications who would be legally admitted to the United States in absence of the Executive Order. That TRO is set to expire on Sunday, February 5, 2017.
Following entry of the TRO a flurry of activity has resulted in the filing of an amended complaint wherein five other Iranian nationals and Oxfam America, Inc. are named as additional plaintiffs and the allowance of a motion by the Commonwealth of Massachusetts and the University of Massachusetts to intervene as plaintiffs. Now pending before this session is the informal motion of all of the plaintiffs to continue in force the subject TRO which defendant opposes. Oral argument on that motion was heard earlier today. I. Background
A. The Parties Habeas petitioners Tootkaboni and Louhghalam are Iranian nationals, Muslim and lawful permanent residents of the United States. Both are currently employed as Associate Professors at the University of Massachusetts-Dartmouth. They were each detained for nearly four hours at Logan Airport on January 28, 2017, without access to counsel, after returning from an academic conference outside the country. The five other individual plaintiffs are Iranian nationals and Muslim. Three of them, Babak Yaghoubi Moghadam, his sister, Fatemeh Yaghoubi Moghadam, and Ali Sanie are also lawful
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Case 1:17-cv-10154-NMG Document 69 Filed 02/03/17 Page 3 of 21
permanent residents. Plaintiffs Zahrasadat Mirrazi Renani and Leily Amirsardary are in the United States on valid F-1 student visas. Plaintiff Oxfam America Inc. is a subsidiary of a worldwide non-profit organization that promotes policy reform in the United States and abroad with respect to global poverty.
Defendants in this case are President of the United States, Donald J. Trump, United States Customs and Border Protection (“CBP”), Kevin K. McAleen, the Acting Commissioner of the CBP, William Mohalley, the Boston Field Director of the CPB, and the Department of Homeland Security and its Secretary, John Kelly. Each individual defendant is sued in his official capacity.
B. The Executive Order On January 27, 2017, the President of the United States Donald J. Trump, issued Executive Order No. 13,769 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO”). The EO directs changes to the policy and process of admitting non-citizens into the United States purportedly to protect national security and to provide a period of review for relevant agencies to evaluate current procedures and to propose and implement new procedures. The changes in immigration procedure relevant to this action are as follows. The EO suspends for 90 days entry of immigrants and non-immigrants from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. Exec. Order 13,769
-3-

Case 1:17-cv-10154-NMG Document 69 Filed 02/03/17 Page 4 of 21
§ 3(c). The EO also suspends, for 120 days, the United States Refugee Admission Program (“USRAP”). Id. § 5(b). The order directs, after the suspension on USRAP ends, that the Secretary of State prioritize applicants on the basis of religious-based persecution
provided that the religion of the individual is a minority religion in the individual’s country of nationality. Id. On February 1, 2017, White House counsel issued a clarification to the Acting Secretary of State, the Attorney General and the Secretary of Homeland Security that Sections 3(c) and 3(e) do not apply to lawful permanent residents. C. The Immigration and Nationality Act The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., was originally enacted in 1952 and has been amended several times, including in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). The INA governs immigration, naturalization, refugee assistance and removal procedures and defines the circumstances that govern the admission of aliens into the United States. The relevant provision of the INA provides that: Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the
-4-

Case 1:17-cv-10154-NMG Document 69 Filed 02/03/17 Page 5 of 21
entry of aliens any restrictions he may deem to be appropriate. 8 U.S.C. § 1182(f). D. Procedural History As described above, petitioners Tootkaboni and Louhghalam filed a writ of habeas corpus on January 28, 2017. In the middle of a weekend night, following a hearing, Judge Burroughs and Magistrate Judge Dein, the assigned emergency district and magistrate judges, respectively, entered a TRO preventing individuals subject to the EO from being detained or removed upon arrival at Logan. The TRO also directed petitioners to file an amended complaint and scheduled a hearing to occur prior to the expiration of that order. The matter was randomly assigned to this judicial officer who, accordingly, scheduled a hearing with respect to the continuance of the TRO. II. Continuance of the TRO A. Legal Standard In order to obtain a preliminary injunction or temporary restraining order, the moving party must establish 1) a reasonable likelihood of success on the merits, 2) the potential for irreparable harm if the injunction is withheld, 3) a favorable balance of hardships and 4) the effect on the public interest. Jean v. Mass. State Police, 492 F.3d 24, 26-27 (1st Cir. 2007); Quincy Cablesys., Inc. v. Sully’s Bar, Inc., 640 F.
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Supp. 1159, 1160 (D. Mass. 1986). Of these factors, the likelihood of success on the merits “normally weighs heaviest on the decisional scales.” Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009).
The Court may accept as true “well-pleaded allegations [in the complaint] and uncontroverted affidavits.” Rohm & Haas Elec. Materials, LLC v. Elec. Circuits, 759 F. Supp. 2d 110, 114, n.2 (D. Mass. 2010) (quoting Elrod v. Burns, 427 U.S. 347, 350, n.1 (1976)). The Court may also rely on otherwise inadmissible evidence, including hearsay. See Asseo v. Pan Am. Grain Co., Inc., 805 F.2d 23, 26 (1st Cir. 1986). Ultimately, the issuance of preliminary injunctive relief is “an extraordinary and drastic remedy that is never awarded as of right.” Peoples Fed. Sav. Bank v. People’s United Bank, 672 F.3d 1, 8-9 (1st Cir. 2012) (quoting Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011)).
The Court may extend temporary injunctive relief upon a showing of good cause. Fed. R. Civ. P. 65(b)(2).
B. Application 1. The claims for injunctive relief by the lawful permanent residents
On February 1, 2017, the White House distributed a memorandum to the Acting Secretary of State, the Acting Attorney General and the Secretary of Homeland Security clarifying that
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Sections 3(c) and 3(e) of the EO do not apply to lawful permanent residents.
That memorandum comports with the language of the Section 3(c) which temporarily suspends “entry” of aliens from the seven subject countries. Upon returning to the United States, lawful permanent residents do not, however, typically “enter” the country for purposes of the INA.
Although “entry” is no longer defined in the INA, it has been replaced with the term “admission,” which is defined as
the lawful entry of the alien into the United States after inspection and authorization by an immigration officer. 8 U.S.C. § 1101(a)(13)(A) (emphasis added); see also Vartelas v. Holder, 556 U.S. 257, 263 (2012) (explaining that Congress made “admission” the “key word” and removed the definition of “entry” from the statute). Under the INA, lawful permanent residents are regarded as seeking admission, i.e. entry, into the United States only if they fall within six categories, including inter alia, being absent from the United States for 180 days or more. See id.; 8 U.S.C. § 1101(a)(13)(c). Therefore, the use of the term “entry” in Section 3(c) indicates that the suspension was not intended to be applied to lawful permanent residents.
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In light of the government’s clarification that the EO will not be applied to lawful permanent residents, the claims for injunctive relief by plaintiffs Louhghalam, Tootkaboni, Sanie, Fatemeh Moghadam and Babak Moghadam are moot. With respect to those individuals, there is “no ongoing conduct to enjoin”. Town of Portsmouth v. Lewis, 813 F.3d 54, 58 (1st Cir. 2016). Thus, any declaration with respect to the lawfulness of the EO would be strictly advisory. See New Eng. Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 18 (1st Cir. 2002) (remarking that it would be “pointless” to declare the constitutionality of a policy that had been revised during litigation).
Although the claims by the lawful permanent resident plaintiffs for injunctive relief are moot, the claims for injunctive relief by plaintiffs Renani and Amirsardary, holders of F-1 visas, and Oxfam are not covered by that clarification and thus the Court will address the merits of their claims for injunctive relief.
2. The claims for injunctive relief by the plaintiffs who hold F-1 Visas a. Count I: Equal Protection claim
The Fifth Amendment protects aliens within the United States from “invidious discrimination by the Federal Government.” Plyler v. Doe, 457 U.S. 202, 210 (1982) (quoting Mathews v. Diaz, 426 U.S. 67, 77); see also Yick Wo v. Hopkins,
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118 U.S. 356, 369, (1886) (“[Equal Protection is] universal in [its] application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality.”). There is a distinction, however, between the constitutional rights enjoyed by aliens who have entered the United States and those who are outside of it. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
The decision to prevent aliens from entering the country is a “fundamental sovereign attribute” realized through the legislative and executive branches that is “largely immune from judicial control.” Chi Thon Ngo v. I.N.S., 192 F.3d 390, 395 (3d Cir. 1999), amended (Dec. 30, 1999) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953)). Federal classifications based on alien status are evaluated using rational basis review. Mathews v. Diaz, 426 U.S. 67, 83 (1976) (considering whether a law that made distinctions based on alien status was “wholly irrational”); Ruiz-Diaz v. United States, 703 F.3d 483, 486–87 (9th Cir. 2012)(determining that a regulation that treated immigrant religious workers differently than other visa applicants would be evaluated using rational basis review); Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 1979) (upholding a regulation issued in response to the Iran hostage crisis that required non-immigrant alien Iranian students to
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provide information to Immigration and Naturalization Services Offices).
Rational basis review examines whether the “classification at issue bears some fair relationship to a legitimate public purpose.” Plyler, 457 U.S. at 216. It is “not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Heller v. Doe by Doe, 509 U.S. 312, 319–20 (1993) (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993)). Under rational basis review, a classification is permissible “if there is any reasonably conceivable state of facts that could provide a rational basis.” Id. (quoting Beach Communications, 508 U.S. at 313).
Plaintiffs contend that the EO discriminates on the basis of religion and was designed to exclude Muslims from the United States. They further allege that it singles out citizens of seven different countries. At oral argument, plaintiffs relied on “astonishing evidence of intent” from President Trump which, in their view, demonstrates that EO was “substantially motivated by improper animus.” See Hunter v. Underwood, 471 U.S. 222, 233 (1985) (holding that a provision in the Alabama Constitution violated equal protection even through it was facially neutral because it was motivated by animus). Defendants responded that the cases examining improper animus involve equal protection claims against states, which may be reviewed with strict
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scrutiny, while the federal government classification of nonresident aliens in this case is subject to rational basis review.
Because the EO involves federal government categorizations with respect to non-resident aliens, rational basis review applies. According to the EO, its purpose is
to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists . . . . Exec. Order 13,769 § 3(c). The EO specifically asserts that permitting aliens from the countries identified in section 217(a) of the INA, 8 U.S.C. § 1187(a)(12), to enter “would be detrimental to the United States.” The order provides a reasonably conceivable state of facts [which concerns national security and] that could provide a rational basis for the classification. Heller, 509 U.S. at 319–20. Accordingly, this Court declines to encroach upon the “delicate policy judgment” inherent in immigration decisions. Plyler, 457 U.S. at 225.
b. Count II: Establishment Clause claim With respect to Count II, plaintiffs allege that the Executive Order violates the Establishment Clause of the United States Constitution. See U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion . . . .”). Specifically, plaintiffs claim that the EO disfavors Islam and
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favors Christianity. The Court concludes, however, that the remaining plaintiffs lack standing to raise an Establishment Clause challenge.
The purported harmful disparate treatment of those two faiths arises from Section 5(b) of the EO in which the Secretary of State is directed, upon reinstatement of USRAP, to
prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality (emphasis added). To have standing, plaintiffs must allege an injury in fact that is “concrete and particularized”. Reddy v. Foster, Docket No. 16-1432, 2017 WL 104825, at *4 (1st Cir. Jan. 11, 2017) (quoting Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)). Plaintiffs are not, however, refugees seeking admission to the United States and consequently, any future implementation of Section 5(b) would not personally affect them. Although plaintiffs vigorously disagree with such a policy, that sincere disagreement is insufficient injury to confer standing. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485-86 (1982) (“They fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of
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conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III . . . .” (emphasis removed)).
Moreover, the language in Section 5 of the EO is neutral with respect to religion. Plaintiffs submit in their amended complaint that Section 5 favors Muslims over Christians, in violation of the Establishment Clause. The provisions of Section 5, however, could be invoked to give preferred refugee status to a Muslim individual in a country that is predominately Christian. Nothing in Section 5 compels a finding that Christians are preferred to any other group.
c. Count III: Due Process claim The power to admit or exclude aliens is a sovereign prerogative” and aliens seeking admission to the United States request a “privilege.” Landon v. Plasencia, 459 U.S. 21, 32 (1982). It is “beyond peradventure” that “unadmitted and nonresident aliens” have no right to be admitted to the United States. Adams v. Baker, 909 F.2d 643, 647 (1st Cir. 1990). There is no constitutionally protected interest in either obtaining or continuing to possess a visa. The due process guaranteed by the Fifth Amendment “attaches only when the federal government seeks to deny a liberty or property interest.” Knoetze v. U.S., Dep't of State, 634 F.2d 207, 211 (5th Cir. 1981). A non-citizen has no “inherent property right
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in an immigrant visa.” Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990); see also Legal Assistance for Vietnamese Asylum Seekers v. Dep't of State, Bureau of Consular Affairs, 104 F.3d 1349, 1354 (D.C. Cir. 1997) (holding that aliens “may not assert a Fifth Amendment right in challenging the procedures for granting immigrant visas”); Knoetze, 634 F.2d at 212 (concluding that “revocation of an entry visa issued to an alien already within our country has no effect upon the alien's liberty or property interests”); De Avilia v. Civiletti, 643 F.2d 471, 477 (7th Cir. 1981) (determining there is “no vested right in the issuance of a visa”). Thus, because an alien does not enjoy a property right in a visa, he has no due process right that protects the manner in which a visa is revoked.
Conversely, because the Due Process Clause safeguards all “persons” in the United States, once an alien is in this country, that alien is entitled to Fifth Amendment protection. Zadvydas, 533 U.S. at 693. It is “well established” that aliens have cognizable due process interests which must be protected in deportation hearings. Demore v. Kim, 538 U.S. 510, 523 (2003) (quoting Reno v. Flores, 507 U.S. 292, 306 (1993)). At a minimum, before deportation, aliens are entitled to “notice of the nature of the charges and a meaningful opportunity to be heard.” Choeum v. I.N.S., 129 F.3d 29, 38 (1st Cir. 1997).
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The plaintiffs who hold F-1 Visas, Ms. Renani and Ms. Amirsardary (“the F-1 plaintiffs”), contend that the EO violates their due process rights guaranteed by the Fifth Amendment because it prevents individuals from the targeted countries from coming into the United States without any procedural safeguards. Moreover, they submit that they fear leaving the country because of concerns about being unable to return. Defendants respond that such fears are premature because neither of the F-1 plaintiffs has specific travel plans within the next month.
The F-1 plaintiffs have not demonstrated that they are likely to succeed on the merits of their due process claim. It is not clear whether the F-1 visas of aliens in the United States at the time of the EO have been revoked, although defendants’ counsel stated at the hearing that he thought they had been. Assuming their visas have been revoked, the F-1 plaintiffs have no property or liberty interest in those visas and thus no due process claim with respect to the supposed revocation. Knoetze, 634 F.2d at 212.
Although the F-1 plaintiffs certainly would be protected by the Due Process Clause in the Fifth Amendment if deportation proceedings were initiated against them, Demore, 538 U.S. at 523, there is no indication that such proceedings are forthcoming. Furthermore, while this Court is sympathetic to the difficult personal circumstances in which these plaintiffs
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find themselves, if they choose to leave the country, as nonresident aliens, they have no right to re-enter. Landon, 459 U.S. at 32. In sum, because due process protections do not apply to visas and the F-1 plaintiffs are not currently subject to deportation proceedings, they have not demonstrated a likelihood of success on the merits of a due process claim at this time.
d. Count IV: Administrative Procedure Act claim
The Court concludes that plaintiffs have not shown a likelihood of success on the merits with respect to Count IV, in which plaintiffs allege that the EO violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 706.
In Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992), the United States Supreme Court concluded that the Presidency is not an “agency” as defined in the APA, § 701(b)(1), and thus actions by the President are not subject to the APA. Courts have interpreted Franklin to prohibit review under the APA of actions by the President when he is exercising discretionary authority. See, e.g., Detroit Int’l Bridge Co. v. Gov’t of Canada, 189 F. Supp. 3d 85, 104 (D.D.C. 2016).
Here, Congress has granted the President authority to suspend entry for any class of aliens if such entry would be “detrimental to the interests of the United States.” 8 U.S.C.
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1182(f). Pursuant to, and without exceeding, that grant of discretionary authority, the President issued EO 13,769 and suspended entry of aliens from the seven subject countries. The President’s action is thus unreviewable under the APA. See Detroit Int’l Bridge, 189 F. Supp. 3d at 104-05 (concluding that the President’s decision to allow a permit for an international bridge was not subject to the APA because he had the authority to do so under the International Bridge Act of 1972, 33 U.S.C. § 535 et seq.).
Because the likelihood of success element is “essential” to the issuance of an injunction, New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 13-14 (1st Cir. 2002), the Court will not continue to impose injunctive relief pursuant to Count IV.
e. Count V: First Amendment claim Finally, in Count V, Oxfam claims that the EO has violated its First Amendment rights to freedom of speech, association and petition by barring entry of aliens, including visa holders, into the United States. The United States Supreme Court, in Kleindienst v. Mandel, 408 U.S. 753, 764, 770 (1972), explained that a denial of a visa to an alien could, under some circumstances, violate a United States citizen’s First Amendment right “to receive information”. The Court dismissed plaintiffs’ First Amendment claim, however,
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because the Attorney General provided a “facially legitimate and bona fide reason” for denying the alien’s visa request. In such case, the Court continued, lower courts should not
look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant. Id. at 770. The First Circuit Court of Appeals (“First Circuit”) has considered the bounds of Kleindienst on two occasions: in Allende v. Shultz, 845 F.2d 1111 (1st Cir. 1988), and in Adams v. Baker, 909 F.2d 643 (1st Cir. 1990). That Court concluded in Allende that plaintiffs adequately raised a First Amendment claim. 845 F.2d at 1116. Conversely, in Adams, it held that plaintiffs’ did not assert a valid First Amendment challenge. 909 F.2d at 649-50. In both cases, however, the First Circuit undertook an analysis to determine whether the conduct of the individual who had been denied a visa fit within the statutory authority relied upon for those denials. Here, the President has exercised his broad authority under 8 U.S.C. § 1182(f) to suspend entry of certain aliens purportedly in order to ensure that resources are available to review screening procedures and that adequate standards are in place to protect against terrorist attacks. Exec. Order 13,769 § 3(c). Such a justification is “facially legitimate and bona
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fide” and therefore Oxfam’s First Amendment rights are not implicated. See Kleindienst, 408 U.S. at 770 (concluding that the First Amendment rights of American scholars and students were not violated when a Belgian scholar whom they invited to speak was denied entry into the United States).
Although at oral argument plaintiffs directed this Court to American Academy of Religion v. Napolitano, 573 F.3d 115, 137 (2nd Cir. 2009), which held that a “well supported allegation of bad faith” could render a decision not bona fide, that is not the standard in the First Circuit. Therefore, in light of the “plenary congressional power to make policies and rules for exclusion of aliens,” Kleindienst, 408 U.S. at 769, which pursuant to 8 U.S.C. § 1182(f), has been delegated to the President, the Court concludes that the government’s reasons, as provided in the EO, are facially legitimate and bona fide.
Consequently, Oxfam has not shown a likelihood of success with respect to its claim in Count V. See Kleindienst, 408 U.S. at 770; Adams, 909 F.2d at 650.
f. Other preliminary injunction factors Moving on to the other three factors considered for a temporary restraining order, Jean v. Mass. State Police, 492 F.3d 24, 26-27 (1st Cir. 2007), the potential for irreparable harm weighs in favor of plaintiffs. The harm of being forced to choose between visiting loved ones, participating in a
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prestigious doctoral program or founding a business, on the one hand, and staying in this country out of fear of being denied re-entry is painful to contemplate. Oxfam faces some less lifesize challenges but they are important nevertheless.
There are considerations on both sides with respect to a balancing of the hardships. On the one hand, implementing an effective immigration regime that ensures the safety of all Americans is undoubtedly difficult. On the other hand, the hardship to the professional and personal lives of the individual plaintiffs and to the operation of the Oxfam worldwide organization is palpable.
Finally, there are public interest considerations on both sides. The rich immigrant history of the United States has long been a source of strength and pride in this country. The individual plaintiffs in this case provide particularly compelling examples of the value that immigrants add to our society. Conversely, the public interest in safety and security in this ever-more dangerous world is strong as well.
When the four factors that the Court must consider before imposing injunctive relief are considered collectively, likelihood of success on the merits weighs most heavily in the decision. Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009). Therefore, because plaintiffs have not demonstrated that they are likely to succeed on the merits of
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any of their claims, an extension of the restraining order at the present time is not warranted.

ORDER For the forgoing reasons, the Court declines to impose any injunctive relief and will not renew the temporary restraining order that was entered on January 29, 2017 (Docket No. 6).

So ordered.

Dated February 3, 2017

/s/ Nathaniel M. Gorton_____ Nathaniel M. Gorton United States District Judge

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 Case 1:17-cv-10154-NMG Document 52 Filed 02/02/17 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ARGHAVAN LOUHGHALAM and MAZDAK POURABDOLLAH TOOTKABONI
Plaintiff-Petitioners,
FATEMEH YAGHOUBI MOGHADAM, BABAK YAGHOUBI MOGHADAM, ALI SANIE, ZAHRASADAT MIRRAZI RENANI, LEILY AMIRSARDARY, and OXFAM AMERICA, INC.
Plaintiffs,
and
COMMONWEALTH OF MASSACHUSETTS and UNIVERSITY OF MASSACHUSETTS,
Plaintiff-Intervenors,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WILLIAM MOHALLEY, Boston Field Director, CBP,
Defendants.

No.17-cv-10154-NMG

PLAINTIFF-INTERVENORS’ MEMORANDUM IN SUPPORT OF EXTENDING TEMPORARY RESTRAINING ORDER This case was initiated in the late hours of January 28, 2017, when two lawful permanent residents of the United States—professors at the University of Massachusetts—were detained by U.S. Customs and Border Protection upon their arrival at Logan International Airport pursuant to an Executive Order issued the day before. This Court issued a temporary restraining order early on January 29, 2017, enjoining the Defendants from removing or detaining, “by any manner or

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means,” individuals based solely on the Executive Order. This Court’s order was one of three restraining orders entered by federal courts immediately following issuance of the Executive Order, each premised on a finding of a strong likelihood that the Executive Order violates the constitutional rights of the various plaintiffs and others similarly situated.1 A fourth restraining order was issued just two days ago.2 Each of these orders remains in place and is expected to continue in place until courts rule on the plaintiffs’ motions for further injunctive relief. As in New York, Virginia, and California, the Executive Order continues to inflict and threaten grave harms in Massachusetts, and the need for emergency relief thus continues.
For all of the reasons advanced by Plaintiffs and Plaintiff-Petitioners in support of extending the temporary restraining order in this case, the harm to these parties and others similarly situated is immediate and irreparable. Moreover, beyond those particular individuals, broader harms to the Commonwealth, its institutions, and its residents persist each day the Executive Order is in place. The Executive Order harms the Commonwealth as an employer, educator, service-provider, and tourist destination, as well as a vibrant, international economy.
With the Executive Order in effect, thousands of people in the Commonwealth cannot travel outside of the country (or, in some cases, return to the country from abroad), and they cannot safely make travels plans. Thousands of people face considerable uncertainty as to their legal status even within the United States. The effects already are being felt and will only worsen without the protections currently in place through the temporary restraining order. It is little comfort to these residents that the United States now says, after days of vague and
1 See Aziz v. Trump et al., No. 17-cv-00116 (E.D. Va. Jan. 28, 2017) (temporary restraining order currently in place); Darweesh v. Trump et al., No. 17-cv-00480 (AMD) (E.D.N.Y. Jan. 28, 2017) (temporary restraining order extended until February 21, 2017). 2 See Mohammed v. United States et al., No. 17-cv-00786-AB (PLAx) (C.D. Cal. Jan. 31, 2017) (temporary restraining order extended until hearing on February 10, 2017).
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conflicting statements from various agencies, that it will not enforce the Executive Order with respect to lawful permanent residents. The Executive Order has not been amended or rescinded and continues to apply on its face to lawful permanent residents. Furthermore, the fate of Massachusetts residents with visas and other statuses remains unclear at best. These residents cannot make meaningful plans for their lives, their work, or their education with the Executive Order threatening their continued ability to reside lawfully in the country. The schools, hospitals, businesses, and other institutions that employ or enroll these residents are likewise plagued by uncertainty. That not all of these residents have come forward to submit evidence to the Court of their immediate travel plans misses the point. They already are being harmed and will only be further harmed if the temporary restraining order is lifted. The Commonwealth has intervened in this case on behalf of the broader public interest for this very reason.
The balance of harms at issue here and the public interest thus weigh decidedly in favor of continued emergency relief.
A. The University of Massachusetts is Suffering Immediate and Ongoing Harm In its Complaint and in the attached declarations, the Commonwealth details the
particular harms that the Executive Order has inflicted and will continue to inflict on the University of Massachusetts system (“UMass”).
UMass depends upon the unique and specialized knowledge and experience of foreign nationals, including those from the seven affected countries, as scholars, teachers, employees, and contributors to its academic communities, including its medical school. By limiting the ability of individuals to leave the United States and return as otherwise permitted by federal law—and as contemplated when they initially were employed or enrolled—the Executive Order deprives UMass of the full benefit of their contributions.
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UMass has approximately 300 students who are nationals of the affected countries currently enrolled in its graduate and undergraduate programs, including lawful permanent residents, refugees, and asylees, as well as students in non-immigrant visa classifications. UMass also employs approximately 160 faculty members, researchers, and staff from the affected countries. These include employees who are lawful permanent residents like Petitioners Tootkaboni and Louhghalam, as well as approximately 120 employees with visas conferring temporary, lawful status.
These students, faculty members, researchers, clinical professionals, and other employees who are adversely affected by the Executive Order are effectively unable to leave the United States without risking the inability to return to work or school. They are thus unable to attend academic and professional conferences, seminars, and other academic gatherings outside of the United States, which interferes with their academic work and frustrates the mission of the university. Moreover, with the Executive Order in effect, UMass will also be frustrated in its ongoing efforts to hire and retain employees and to recruit and enroll students. The disruption to UMass’s operations—even for a period of weeks—will be significant.
B. The Executive Order Will Inflict Broad Harms Statewide The harms that UMass is experiencing are just a fraction of the tremendous harms that
the Executive Order will inflict across the Commonwealth. As demonstrated by the additional attached declarations, many individuals, municipalities, schools, businesses, and other organizations across the state already are experiencing adverse effects from the Executive Order and will only suffer further if the temporary restraining order is lifted. As with UMass, these declarations—from the City of Boston, Trip Advisor, LLC, Boston Architectural College, The Broad Institute, Nano-C, Inc., the Boston Bar Association, and the Massachusetts Bar
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Association—represent only a small sampling of ongoing and imminent future harms across Massachusetts. But they nevertheless convey some sense of the scope and gravity of those harms.
C. The Public Interest Thus Weighs in Favor of Uninterrupted Injunctive Relief The public interest weighs in favor of uninterrupted injunctive relief. By unnecessarily
and unconstitutionally singling out individuals who are nationals of the affected countries and impeding or precluding them from traveling, immigrating, or returning to work or school in Massachusetts, the Executive Order will financially harm the Commonwealth, its economy, and its people. Until now, the Commonwealth has been an attractive destination for companies in the life sciences, technology, finance, health care, and other industries, as well as an attractive destination for students, scholars, tourists, and entrepreneurs. The Executive Order will reduce investment and industry in the Commonwealth; decrease the number of international conferences and meetings that are held here, along with the associated spending by visitors; and reduce travel by students, scholars, and tourists, all of whom also spend money in the Commonwealth during their stays here. All of these outcomes will harm the Commonwealth’s economy as a whole, including by decreasing tax and other revenues.
Equally as important, the Commonwealth has a sovereign interest in protecting the health, safety, and well-being of all its residents, including against the special harms caused by discrimination based on religion and national origin. The Executive Order prevents the Commonwealth from promoting and enforcing a regime of non-discrimination under its state constitution and laws. In fact, it effectively mandates discrimination, and thus conflicts with the Commonwealth’s historic protection of civil rights and religious freedom. It also labels many Massachusetts residents as threats to our society simply on the basis of their religion or nation of
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origin, and thus unfairly and unreasonably casts a shadow of stigma and fear on many of our immigrant communities. These harms are as real and significant as the operational and financial harms facing the Commonwealth and its residents.
***** For the foregoing reasons, and in the public interest of all residents of the Commonwealth, Plaintiff-Intervenors urge the Court to extend the temporary restraining order currently in place while the parties fully brief and argue the merits of a preliminary injunction.
Respectfully submitted, COMMONWEALTH OF MASSACHUSETTS UNIVERSITY OF MASSACHUSETTS ATTORNEY GENERAL MAURA HEALEY

February 2, 2017

/s/ Genevieve C. Nadeau

x

Elizabeth N. Dewar, BBO# 680722

Genevieve C. Nadeau, BBO# 677566

Jonathan B. Miller, BBO# 663012

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108

617-963-2204 (Dewar)

617-963-2121 (Nadeau)

617-963-2073 (Miller)

Bessie.Dewar@state.ma.us

Genevieve.Nadeau@state.ma.us

Jonathan.Miller@state.ma.us

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Case 1:17-cv-10154-NMG Document 52 Filed 02/02/17 Page 7 of 7

CERTIFICATE OF SERVICE I, Genevieve C. Nadeau, hereby certify that a true copy of the above document, filed through the CM/ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing and paper copies will be sent to those indicated as non-registered participants on this date.

Dated: February 2, 2017

/s/ Genevieve C. Nadeau

x

Genevieve C. Nadeau

7

 
 Case 1:17-cv-10154-NMG Document 68 Filed 02/03/17 Page 1 of 23

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

ARGHAVAN LOUHGHALAM and,

)

MAZDAK POURABDOLLAH

)

TOOTKABONI

)

)

Plaintiff-Petitioners,

)

)

ZAHRASADAT MIRRAZI RENANI,

)

LEILY AMIRSARDARY, OXFAM

)

AMERICA INC., ALI SANIE, FATEMEH

)

YAGHOUBI MOGHADAM, and

)

BABAK YAGHOUBI MOGHADAM

) Civil Action No. 1:17-cv-10154-NMG

)

Plaintiffs,

)

)

v.

) Leave to File Granted on

) February 3, 2017

)

DONALD J. TRUMP, U.S. CUSTOMS

)

AND BORDER PROTECTION, JOHN KELLY, )

KEVIN K. MCALEENAN, WILLIAM

)

MOHALLEY, and U.S. DEPARTMENT OF

)

HOMELAND SECURITY

)

)

Defendants.

)

)

BRIEF OF AMICI CURIAE MASSACHUSETTS UNIVERSITIES IN SUPPORT OF PLAINTIFFS’ COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF

INTRODUCTION Amici are eight private American institutions of higher education.1 Although each

amicus institution is located in Massachusetts, each has a global connection to a far greater

1 They include Trustees of Boston College (“Boston College”), Trustees of Boston University (“Boston University”), Brandeis University, President and Fellows of Harvard College (“Harvard University”), Massachusetts Institute of Technology (“MIT”), Northeastern University, Trustees of Tufts College (“Tufts University”), and Worcester Polytechnic Institute (“WPI”).
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network of international learning, research, and education. Together, they enroll tens of thousands of students from all over the United States and the world in undergraduate, graduate, and professional degree and certificate programs. Amici also employ faculty and researchers from throughout the globe. These faculty and researchers routinely publish pioneering peerreviewed work in virtually all fields of knowledge. Many have gone on to invent groundbreaking technology, start thriving businesses, and assume leadership roles in governments and other organizations both in this country and abroad. As one amicus institution’s President succinctly stated:
We take great pride in the global nature of our community and have always embraced and valued our international members from around the world. They are our colleagues and friends. Our community and the world are better places because of what we learn and create together.2 Over the course of the past week, amici institutions have seen their students stranded abroad and their faculty members prevented from travelling to and from foreign countries. Scholars based abroad have expressed a determination to boycott academic conferences in the United States, and potential faculty recruits have expressed serious doubts about teaching at amici’s schools. These consequences undermine amici’s bedrock commitment to serving the Commonwealth of Massachusetts, the United States, and the world through innovative teaching and research. That effort depends on maintaining a consistent pipeline of the most talented students and scholars from around the world, who bring with them unique skills and perspectives that inure to the benefit of their classmates, colleagues, and society as a whole. And after
2 Letter from Tony Monaco to Members of the Tufts Community (Jan. 29, 2017), http://president.tufts.edu/blog/2017/01/29/supporting-and-protecting-the-international-membersof-our-community/.
Statements from leaders of other amici institutions are included at Exhibit 2 of the Motion for Leave To File Amici Curiae Brief In Support Of Plaintiffs’ Complaint for Declaratory and Injunctive Relief.
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receiving first-class educations in the United States, the benefits flow in the opposite direction, as those students and scholars take back to their countries the lessons and values they learned here.
At the same time, amici are equally committed to the security of their campuses and the United States. Each university places the highest priority on the safety of its students and scholars and recognizes that security is essential to maintaining a productive learning environment. But it is essential that our commitments to national security not unduly stifle the free flow of ideas and people that are critical to progress in a democratic society. The inquiry, innovation, and invention that take place every day within amici’s classrooms, libraries, and laboratories depend on the ability of scholars and students to travel to and from the United States. Without that ability, the academic achievement and the economic growth that such achievement generates are profoundly at risk.
For these reasons, amici submit this brief to express their concern that the January 27, 2017 Executive Order (“EO”), entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” undermines the values and contributions of open academic exchange and collaboration. Amici are not alone in expressing these concerns—universities and academic organizations across the United States have voiced similar views.3 Like many other institutions, amici have been directly impacted by the EO in the week since it was issued, even despite the Temporary Restraining Order (“TRO”) the Court entered on January 28, 2017. At bottom, those adverse impacts impair the cross-border exchange of ideas that is critical to amici’s success as educational institutions—and to the success of the country as a whole.
3 See International Higher Education Consulting Blog, Running List of University/College and Higher Education Organization/Association Responses to President Trump's Executive Order Entitled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals” Issued Jan. 27, 2017, http://ihec-djc. blogspot. com/2017/01/running-list-ofuniversitycollege-and.html.
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I. The Free Exchange of Information, Ideas, and Scholars Across Borders Is Vital to American Interests. A. Universities and Their Communities Rely and Thrive on the Unhampered Exchange of Scholars and Ideas Across Borders. In any ranking of the world’s finest institutions of higher education, colleges and
universities in the United States predominate.4 The consistent success and acclaim that American colleges and universities enjoy arise, in no small part, from their ability to attract the very best students and faculty, including those from other countries. By attracting the sharpest minds to work together on the world’s most challenging problems, these institutions are best equipped to improve the human condition through medical advances, new political and economic insights, innovative technologies, and the rich learning experiences that an internationally diverse group of students and teachers helps cultivate.
As the statistics provided by each amicus reveal, universities throughout Massachusetts educate and employ tens of thousands of international students, scholars, and staff. Consider the following examples: More than 11,000 international students and scholars from 140 different countries connect on Northeastern’s campus in Boston, and its faculty members collaborate with colleagues all over the world to combat global challenges in health, security, and sustainability. At MIT, 3,289 international students are enrolled in degree programs, and 2,403 international scholars are engaged in teaching and research.5 Boston University hosts more than 9,000
4 See Times Higher Educ. World Univ. Rankings, https:// www. timeshighereducation. com/world-university-rankings/2017/world-ranking# (last visited Feb. 2, 2017).
5 International Students and Scholars, MIT Facts, http://web.mit.edu/facts/international. html (last visited Feb. 2, 2017).
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international students and more than 1,300 international scholars from 88 countries.6 Tufts University enrolls approximately 1,500 international students each year and maintains a global footprint that includes research and academic collaborations in more than 135 countries around the world.7
Amici’s ability to attract these gifted, accomplished, and motivated students and scholars depends on ensuring their ability to travel freely to and from the countries they once called home—and for that matter, to other nations overseas in support of their scholarship. If amici and their peer institutions cannot assure their students, professors, and researchers that they can freely leave the country to visit their families, attend international symposia or conferences, or engage in overseas field research without encountering impediments to their return, then they will struggle to maintain the level of talent and experience that makes the United States the world leader in higher education and research and development.
The importance of maintaining international inclusion on our campuses cannot be overstated. Regular interactions with students and professors who come from different cultures and who have had vastly different life experiences promote both a richer understanding and a deeper appreciation of the pluralistic world in which we live. Equally important, international diversity challenges all of the members of an academic community to reevaluate their assumptions and to reconsider their beliefs and biases. As the President of one amicus institution explained, our institutions are places of “rigor, ingenuity and real-world problem-solving where
6 International Students and Scholars Data, http://www.bu.edu/isso/about/statistics/ (last visited Feb. 2, 2017).
7 International Students and Scholars Data, http://provost.tufts.edu/institutionalresearch/ files/Fact-Book-2015-16_Final.pdf (last visited Feb. 2, 2017).
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generations of bright young minds have come from every corner of the Earth to make something of themselves and work together to make a better world.”8
By way of example, the five Syrian students enrolled at MIT this past semester undoubtedly were able to contribute to their peers’ understanding of the wide-ranging consequences of the war in Syria in a way no textbook or lecture ever could.9 Similarly, the Iranian students enrolled at amici’s schools could offer a unique perspective on the strengths and weaknesses of the recent nuclear deal and other aspects of the United States’ foreign policy that students could not absorb by simply reading op-eds in domestic newspapers. The presence of international scholars and students enriches the experiences of all members of amici’s communities. Indeed, amici would find it extraordinarily difficult to realize the ideals described in their respective mission statements, if students and scholars from countries around the globe could not predictably exit and enter our country.
In addition to contributing to a diversity of perspective, scholars hailing from different countries have necessarily confronted different social and political conditions and so can identify different problems to solve—and see different solutions to offer. For this reason, Harvard operates a “Scholars at Risk” program that allows scholars from war-torn countries or who face persecution to continue their important work under safe conditions—and with greater reach.10
8 See Letter from L. Rafael Reif to Members of MIT Community (Nov. 9, 2017), http:// president.mit.edu/speeches-writing/our-eyes-future (last visited Feb. 2, 2017).
9 Geographic Distribution of Students, MIT Registrar’s Office, http://web.mit.edu/ registrar/stats/geo/ (last visited Feb. 2, 2017).
10 See Harvard Scholars at Risk, http://projects.iq.harvard.edu/scholarsatrisk/home (last visited Feb. 2, 2017). See also infra p. 11–12 (describing the research projects and contributions of select international scholars from the seven nations affected by the EO).
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B. International Scholars Bolster the American Economy and Strengthen Our Democracy.
The benefits of a free-flowing exchange of scholars and ideas redound well beyond
American colleges and universities. The United States reaps tremendous profits—both tangible
and intangible—from its colleges’ and universities’ commitment to welcoming academics,
researchers, and innovators from around the world.
As a matter of pure economics, few investments produce a greater return for our nation than investments in higher education, innovation, and research.11 The United States economy
has been fueled by foreign-born innovators who came to this country and chose to stay for extended periods of time.12 According to one study by the National Foundation for American
Policy (NFAP), “[i]mmigrants have started more than half (44 of 87) of America’s startup
companies valued at $1 billion or more and are key members of management or product development teams in over 70 percent (62 of 87) of these companies.”13 Indeed, one can only
imagine how different the American economy would be if Abdul Fattah Jandali—Steve Jobs’s
11 See, e.g., Eric A. Hanushek, et al., Education and Economic Growth, Education Next 62, 64 (Spring 2008) (describing the “large effect” such investments exert on a nation’s economic growth rate); Jennifer Erickson & Sean Pool, Science Progress, The High Return on Investment for Publicly Funded Research, https://scienceprogress.org/2012/12/the-high-returnon-investment-for-publicly-funded-research/ (last visited Feb. 2, 2017) (estimating that a “return on investment for publicly funded scientific research and development is somewhere between 30 percent and 100 percent or more” and citing DARPA, the Apollo Project, NSF, and the Human Genome Project as examples of high ROI programs).
12 See, e.g., Adams Nager, et al., Information Technology & Innovation Found., The Demographics of Innovation in the United States (Feb. 24, 2016), https://itif.org/publications/ 2016/02/24/demographics-innovation-united-states (suggesting that more than one third of U.S. innovators were born outside the country, and another 10 percent have at least one parent who was born abroad) (last visited Feb. 2, 2017).
13 Stuart Anderson, Nat’l Found. for American Policy, Immigrants and Billion Dollar Startups, http://nfap.com/wp-content/uploads/2016/03/Immigrants-and-Billion-Dollar-Startups. NFAP-Policy-Brief.March-2016.pdf (last visited Feb. 2, 2017).
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Case 1:17-cv-10154-NMG Document 68 Filed 02/03/17 Page 8 of 23
biological father—were not permitted to enter the United States from his original home in Homs, Syria, to study at the University of Wisconsin.14 The creation of new wealth generates obvious financial benefits for the United States, as well as considerable job growth. Each of the $1 billion startups in the NFAP study has “created an average of approximately 760 jobs . . . in the United States.” Id.
Finally, the education of foreign-born students and collaboration between American students and foreign-born scholars at institutions like amici’s present the United States with an opportunity to promote the ideals that, together, compose the social, political, and cultural fabric of this country. International students and scholars who come to the United States to engage on our academic campuses are exposed to our democratic principles, as well as to our norms of tolerance and respect. They witness American society’s steadfast commitment to human rights, our emphasis on education, and our dedication to the rule of law.
These values, in turn, are transmitted around the world when these individuals depart this country. Harvard counts twenty or more alumni who have served as heads of state of foreign countries—many in developing countries—including Liberian President Ellen Johnson-Sirleaf (who studied economics and public policy) and former Prime Minister of Pakistan Benazir Bhutto (who studied comparative government).15 Former Secretary-General of the United Nations Kofi Annan earned a Master’s degree in management from MIT. These world leaders, along with countless other individuals from the amici institutions, have come to the United
14 See Edward C. Baig, Steve Jobs’ Biological Father Was Syrian Migrant, Some Note, USA Today (Nov. 17, 2015), http://www.usatoday.com/story/tech/columnist/baig/2015/11/16/ steve-jobs-biological-father-syrian-migrant-some-note/75899450/ (last visited Feb. 2, 2017).
15 Heads of State, http://www.harvard.edu/about-harvard/harvard-glance/honors/headsstate (visited Feb. 1, 2017).
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States, engaged in the vigorous exchange of ideas for which this country is known, and then returned to their countries steeped in American culture and American principles.16
The importance of a free-flowing exchange of students, scholars, and ideas is reflected in
longstanding federal law and policy. In 1961, the government established a special non-
immigrant visa program to encourage young leaders, entrepreneurs, research scholars, and professors to come to the United States and engage in “educational and cultural exchange[].”17
This program, called the J-1 Visa Program, expressly instructs visitors who have completed the program to “return to their home country . . . to share their exchange experiences.” Id. Given
the important role these exchanges play in maintaining American relationships and influence
abroad, it is no surprise that administration of the J-1 program is entrusted to the Department of
State. And yet the EO notably did not include J-1 visa holders in its list of foreign nationals
exempted from its entry ban. See EO, § 3(c). Other provisions of law advance Congress’s intention that, notwithstanding the national
security interest, borders should not constrain the dissemination of knowledge. See, e.g., 50 U.S.C. § 5(b)(4) (the “Berman Amendment”); 50 U.S.C. § 1702(b)(3) (the “Free Trade in Ideas
16 What is more, the wide array of executive education programs offered by amici allow for direct instruction to foreign public servants, government officials, and business leaders. For example, students from all over the world—including several of the countries specified in the EO—have recently participated in programs that are conducted by Harvard Kennedy School (HKS). See HKS Executive Education, Participant Mix, https://exed.hks.harvard.edu/HKS_ Advantage/Participant_Mix.aspx (last visited Feb. 2, 2017). Similarly, HKS and Harvard’s T.H. Chan School of Public Health offer an annual Harvard Ministerial Leadership Program, in which ten to twelve “serving education, health, and finance ministers from Africa, Southeast Asia and Latin America” are invited into a rigorous summer course in Cambridge for leadership enhancement. Harvard Ministerial Leadership Program, https://ministerialleadership. harvard. edu/the-program/ (last visited Feb. 2, 2017).
17 U.S. Dep’t of State, J-1 Visa Exchange Visitor Program, Common Questions, https:// j1visa.state.gov/basics/common-questions/ (last visited Feb. 2, 2017).
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Act”) (barring the President from restricting the importation or exportation of “any information or informational materials” to or from any country, including in times of war). Similarly, pursuant to National Security Research Directive 189, National Policy on the Transfer of Scientific, Technical, and Engineering Information, the government has taken steps to ensure that “any basic or applied research in science and engineering, the results of which are ordinarily published and shared broadly within the scientific community,” is exempted from export controls. See 15 C.F.R. § 734.8(a) (applying the fundamental research exclusion to Department of Commerce export control regulations); 22 C.F.R. § 120.11(a) (defining the scope of the exclusion in State Department International Trafficking in Arms Regulations). II. The Executive Order Endangers Academic Exchange with International Students
and Scholars. By “suspend[ing] entry into the United States, as immigrants and nonimmigrants,” of persons from Iran, Iraq, Syria, Sudan, Yemen, Libya and Somalia for at least 90 days, EO § 3(c), the EO stands in the way of the open academic exchange that is so vital to modern higher education and our national interests. All eight amici have students and scholars with nonimmigrant visas from the countries specified in the EO:  Boston College counts 8 students and 5 scholars;  Boston University counts 97 students and 16 scholars;  Brandeis University counts 12 students and 10 scholars;  Harvard University counts 49 students and 62 scholars;  MIT counts 47 students and 69 scholars;  Northeastern counts 250 students and 30 scholars;  Tufts University counts 32 students and 25 scholars;  WPI counts 40 students.
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Amici also host and employ numerous nationals of the seven specified countries,
including:
 An activist and journalist who helped galvanize Yemeni support for the Arab Spring and has been appointed a visiting lecturer on public policy;
 A Syrian trauma surgeon who was instrumental in coordinating NGO support for medical care to casualties of the civil war and is now assessing the relative availability and quality of trauma care at Syrian hospitals;
 An Iranian professor who previously worked at a leading European architectural firm, taught throughout Europe, and has received numerous prestigious awards and appointments for her contributions to the field;
 A Sudanese medical professor (and practicing physician at a local hospital) who has received awards and public acclaim for her work on female genital cutting;
 An Iranian medical professor who has developed novel methods for studying the longterm risks of myocardial infarction and stroke following blood infection;
 An Iranian postdoctoral student whose stem cell research has broad implications for lung regeneration and precision medicine approaches to treating children and adults with lung disease;
 A Syrian professor and recipient of a MacArthur “Genius” grant who has, among other things, founded a company that develops systems to monitor vital signs to detect the onset of illness in the elderly;
 An Iranian professor, widely-regarded as a leader in the exploration of the Earth, who has worked closely with NASA and received numerous awards in his field; and
 An Iranian postdoctoral researcher whose research will contribute to the development of next-generation therapeutics for cancer patients.
From the moment the EO was signed, amici’s students and scholars like these have acutely felt
its negative effects.
A. Students and Scholars At Amici Universities Have Been Directly Impacted by the EO.
At the moment the EO took effect, members of the Massachusetts academic community
were both locked out of and locked into the United States. Numerous students and scholars from
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amici institutions who were outside of the United States at the time the EO was signed have been barred from returning to the United States to continue their studies and work. These include undergraduates who were simply trying to return to campus after spending their winter breaks with their families.18 Many students and scholars were barred from travelling to Boston, even after this Court’s entry of a TRO.19 To take just one case, a Ph.D. student at an amicus institution traveled home to Iran in December for a family emergency. The EO has prevented her from returning to the United States to resume her coursework, so her progress toward her degree has stalled. In another case, a research scientist who holds a Ph.D. in theoretical physics received a fellowship from the New England Complex Systems Institute to study the behavior of complex social networks. That scholar had planned to arrive last weekend, but has had to remain in Iran because of the EO. It is now unclear when, if ever, she will be able to travel to the United States for her project. In a third case, a postdoctoral scholar at another amicus university was visiting family in Iran when the EO took effect and has since been unable to return to the United States despite repeated efforts to board flights bound for Logan Airport through no fewer than three international cities. Another Iranian researcher with a joint appointment at Harvard Medical School and Brigham & Women’s Hospital was unable to board a flight from Zurich to
18 See, e.g., Stephanie Ebbert, MIT Engineering Student From Iran Not Allowed To Reenter US, Boston Globe, Jan. 31, 2017, http://www.bostonglobe.com/metro/2017/01/31/mitengineering-student-from-iran-barred-entry-into/fQBJ7kLIhY7P79YNKVKtTN/story.html; Anya Kamenetz, Students Stranded Worldwide By Trump Order, NPR (Jan. 30, 2017), http://www.npr.org/sections/ed/2017/01/30/512431112/students-stranded-worldwide-by-trumporder.
19 See Stephanie Ebbert, MIT Engineering Student From Iran Not Allowed To Reenter US, Boston Globe, Jan. 31, 2017, http://www.bostonglobe.com/metro/2017/01/31/mitengineering-student-from-iran-barred-entry-into/fQBJ7kLIhY7P79YNKVKtTN/story.html.
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Logan Airport—even with the TRO in effect—and filed a lawsuit yesterday to gain entry to start her work.20
Just as many individuals have been kept out of the United States in the wake of the EO, others are effectively kept in. Those scholars and students from the seven countries covered by the EO who were fortunate enough to be in the United States at the time the EO took effect cannot confidently travel outside of the United States and expect reentry. This means that, despite having valid visas, faculty members from the seven countries covered by the EO cannot attend academic conferences, give lectures to colleagues at sister universities, or conduct field research in foreign nations. Others are cancelling both their personal and professional travel plans.
The experience of a professor at one amicus institution exemplifies these adverse academic and personal consequences. Prior to settling in Massachusetts, this professor taught at universities around the world and maintained close ties with academic colleagues at these foreign institutions. The EO struck a sudden, significant blow to these connections, casting in doubt the professor’s ability to present as scheduled at upcoming conferences overseas, because her return to the United States is not guaranteed. The professor also has concerns about traveling abroad to visit and care for her mother, who is terminally ill, while the EO remains in place. This case illustrates how significantly the EO upends both lives and learning.
Equally to the point, students cannot pursue their own research in foreign libraries or laboratories, participate in study abroad programs, or attend satellite campuses in other

20 See Milton J. Valencia, Boston-Bound Iranian Scientist with Visa Sues US over Ban,

Boston Globe, Feb. 2, 2017, https://www.bostonglobe.com/metro/2017/02/01/iranian-scientist-

with-visa-and-bound-for-boston-sues-over-ban/v0rRMIatsOfTTzY0sr8EvL/story.html

(last

visited Feb. 2, 2017).

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countries.21 Nor can they travel home for personal reasons, whether to celebrate a family
member’s marriage or to mourn a loved one’s death at a funeral. Two Iranian graduate students
who are studying global health at an amicus institution may not be able to complete field
research and training because of the EO’s travel ban. One Ph.D. student at an amicus university,
moreover, cannot travel to conduct research on changes in family life in urban Iran. And one
Harvard graduate student recently published an eloquent editorial in the New York Times—worth
reading in its entirety—describing how he is now afraid to leave the country and sorrowful about
the effects that the EO will have on “thousands who, unlike me, might never get to experience
21 Amici have invested significant resources in study abroad programs, foreign satellite campuses, and global experiential learning opportunities. The EO imperils the success of innovative international programs like these. For example, amicus Northeastern’s cooperative experiential learning model integrates study with professional work, research, and service opportunities in more than 130 countries around the world and with more than 3,300 global partners. In addition to global co-op, the university offers the “N.U.in” program, an experiential academic program that expands Northeastern students’ education into worldwide locations. The Nu.in Program, https://www.northeastern.edu/nuin/ (last visited Feb. 2, 2017). Launched in 2007, the program provides educational opportunities in eight different countries. Amicus Boston University offers more than 100 study abroad opportunities in more than 20 countries and on six continents, including at its campus in London. See Study Abroad, http:// www.bu.edu/abroad/find (last visited Feb. 2, 2017). Amicus MIT’s Sloan Management School allows students to enroll in “Action Learning Labs,” where they are assigned to real-world company partners and work on projects for those companies, often on-site, during an academic term. The school offers Labs in China, India, and Israel, as well as a Global Entrepreneurship Lab, in which students are sent to emerging markets across the globe, “from Argentina to Zambia.” MIT-Sloan, Action Learning, http://mitsloan.mit.edu/actionlearning/ (last visited Feb. 2, 2017). Finally, the Human Rights Program at Harvard Law School works to protect the rights of clients and communities around the world through a variety of international projects. See Human Rights@Harvard Law, http://hrp.law.harvard.edu (last visited Feb. 2, 2017). The Program’s clinical projects regularly involve work in several of the countries identified in the EO.   For example, in the past five years the Clinic has undertaken work related to the threat posed to civilians in Libya by abandoned weapons. More recently, one clinical project has been engaging with the challenges that Syrian refugees living outside refugee camps encounter when attempting to obtain official documents from the Government of Jordan. Over the past year, another ongoing clinical initiative focused on climate change displacement and included a case study on Somalia.  
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America at its best.”22 These examples demonstrate just how disruptive the EO has been to universities across the Commonwealth in one short week.
Needless to say, fruitful academic exchange does not only occur abroad. It also takes place within the United States. Foreign scholars frequently travel to amici universities for conferences and to collaborate with academic and research colleagues. For example, the Boston College Islamic Civilization Program plans to host an international conference in the fall of 2017. However, plans for the program are in jeopardy, as one key speaker from the Middle East has already cancelled, and there is considerable uncertainty whether other scholars from the Middle East will submit an adequate number of papers. And the EO also burdens foreign academics who wish to come to the United States to foster collaborative study. As more than 20,000 scholars—including 44 Nobel Laureates; 45 recipients of prestigious awards like the Fields Medal, Pulitzer Prize, and MacArthur Fellowship; and 273 Members of the National Academies of Sciences, Engineering, and Arts—explained in an online petition:
The proposed EO limits collaborations with researchers from these nations by restricting entry of these researchers to the US and can potentially lead to departure of many talented individuals who are current and future researchers and entrepreneurs in the US. We strongly believe the immediate and long term consequences of this EO do not serve our national interests.23 B. The EO Will Have Continuing Adverse Effects on Open Academic Exchange
and, by Extension, National Interests. In addition to the direct effects on amici’s existing students and scholars, the EO promises to have indirect deleterious effects on academic exchange going forward. Shortly after
22 Ziad Reslan, Harvard Student: ‘I Worry If I Leave, I Won’t Be Let Back In’, N.Y. Times (Feb. 2, 2017), https://kristof.blogs.nytimes.com/2017/02/02/harvard-student-i-worry-if-ileave-i-wont-be-let-back-in/?_r=2 (last visited Feb. 2, 2017).
23 Academics Against Immigration Executive Order, https://notoimmigrationban.com/ (last visited Feb. 2, 2017).
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the EO’s signing was announced, for example, more than 3,000 international scholars signed a petition to “boycott international academic conferences held in the United States in solidarity with those affected by” the EO.24 This proposed boycott was not a hollow threat. One faculty member at an amicus institution had signed an agreement to host an international conference in the fall of 2017. This faculty member recently received correspondence from the funding source calling for all planning for the conference to be suspended, given the large number of expected attendees who have signed the boycott petition. The conference likely will be moved out of the United States or postponed as a result.
Foreign countries have also started cancelling their own conferences in response to the EO. One faculty member at an amicus institution has already been informed that an academic conference she was planning to attend in March has been cancelled. That conference, sponsored by the Association for the Study of Persianate Societies and scheduled to take place in Shiraz, Iran, could not proceed due to the travel difficulties posed by the EO and the related uncertainty around who (if anyone) would be able to attend. This professor had planned to participate in the conference to consult with her academic colleagues in her unique field of study, but she will now be unable to do so.
It is difficult to overstate the importance of conferences, colloquia, and symposia to scholarly communication. They enable intellectual give-and-take and real-time digestion and discussion of research. Conferences also allow for in-person encounters and discussions that may give rise to important future collaborations. The prospect of barred entry, and of retaliation
24 Elizabeth Redden, Boycotting the U.S., Inside Higher Ed (Jan. 31, 2017), https://www.insidehighered.com/news/2017/01/31/protest-trump-entry-ban-some-scholars-areboycotting-us-based-conferences (last visited Feb. 2, 2017).
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and boycotts, means lost opportunities for the expansion of knowledge. Moreover, American universities risk removal from the epicenter of where cutting-edge ideas are discussed. The EO puts all of these benefits in jeopardy.
The EO will also impair amici’s ability to recruit foreign faculty and scholars. Collectively, amici universities already employ dozens of faculty members from the seven nations currently covered in the EO. But the aforementioned petitioning scholars offer a powerful reason why foreign academics may be unwilling to teach at an American university in the future:
The implementation of this EO will necessarily tear families apart by restricting entry for family members who live outside of the US and limiting the ability to travel for those who reside and work in the US.25 Given those working conditions, scholars often will not choose to teach in this country. In fact, one amicus institution’s current recruit to fill a full-time faculty position has disclosed that he is married to a national from one of the seven countries covered in the EO; that recruit has expressed concerns about accepting a position in light of the EO. Another amicus institution is conducting two important faculty searches and has identified highly desirable candidates from the affected countries. The EO has created significant uncertainty regarding whether these candidates would be able to obtain visas. Similar problems have arisen at other amici institutions, which may lose highly competitive candidates from the affected countries to institutions outside the United States. In addition, the suspension of visa processing under the EO may have financial implications for our students and scholars through the loss of research
25 See Academics Against Immigration Executive Order, https://notoimmigrationban. com/ (last visited Feb. 2, 2017).
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Case 1:17-cv-10154-NMG Document 68 Filed 02/03/17 Page 18 of 23
funding and the loss of job opportunities if they are unable to obtain or extend work authorizations during this time period.
Likewise, the EO will prevent amici universities from attracting and educating the best and brightest foreign students. For example, while the regular admissions process is still underway at MIT, at least two prospective students from the identified countries have already been admitted for the fall, via early action. One, an 18-year-old from Damascus, was reported on in the media.26 After dreaming for years of earning an engineering degree from MIT, the student was recently accepted for the class of 2021. But when the EO was signed, his ability to attend MIT became uncertain. As he puts it: “‘My dreams are basically ruined.’”27 Regrettably, this young man is not the only talented applicant whose dreams may be dashed. Tufts University has already observed a drop in applications for one of its international scholarship programs. In fact, one of the program’s most highly qualified applicants withdrew his application after the EO issued, saying that he was not ready to commit to the program “under the current climate.” This withdrawal is causing concern about the pipeline of future applicants for the scholarship program. Tufts’ experience suggests that fewer students from the seven affected nations will continue to apply to American universities so long as the EO’s restrictions remain in effect.
Finally, the uncertainty of the current situation likely will deter international scholars and students from countries not currently listed in the EO from visiting the United States for academic purposes. To give one example, an amicus had recently extended a postdoctoral offer to a prospective student from Ukraine, but the student has indicated that she is unlikely to accept
26 See Justin Lear, A Syrian teen was headed to MIT and then came the ban (Jan. 29, 2017), http://www.cnn.com/2017/01/29/us/mit-syria-student-ban-trnd/ (last visited Feb. 2, 2017).
27 Id.
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due to the unpredictable environment. Although there are reportedly no current plans in place to expand the EO’s current list of seven countries, high-ranking Executive Branch officials have suggested that an expansion may well occur in the future.28 Given those statements and the abruptness with which the existing EO was issued, foreign scholars and students may not be willing to risk be being stranded here or abroad with hopes of simply gaining an education or educating young minds in the United States.
CONCLUSION For the foregoing reasons, the EO poses serious risks that amici will not be able to remain the successful institutions of higher learning that they are today. Accordingly, the Court should grant the declaratory and injunctive relief requested by the Plaintiffs.
28 See Face the Nation Transcript, January 29, 2017, http://www.cbsnews.com/news/facethe-nation-transcript-january-29-2017-priebus-mccain-ellison/ (“Now, you can point to other countries that have similar problems, like Pakistan and others. Perhaps we need to take it further.”).
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February 3, 2017

Respectfully Submitted,
COUNSEL FOR AMICI CURIAE MASSACHUSETTS UNIVERSITIES,
By: /s/ Alan D. Rose Alan D. Rose Rose, Chinitz & Rose One Beacon Street, 23rd Floor Boston, MA 02108 Tel: (617) 536-0040 Fax: (617) 536-4400 adr@rose-law.net
Brad D. Brian (California Bar #79001) Pro Hac Vice pending Michael R. Doyen (California Bar #119687) Pro Hac Vice pending Munger, Tolles & Olson LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071 Tel: (213) 683-9100 Fax: (213) 687-3702 Brad.Brian@mto.com Michael.Doyen@mto.com
Chad Golder (New York Bar #4381356) Pro Hac Vice pending Sarah G. Boyce (District of Columbia Bar #1035243) Pro Hac Vice pending Munger, Tolles & Olson LLP 1155 F. St., NW, 7th Floor Washington, DC 20004 Tel: (202) 220-1100 Fax: (202) 0220-2300 Chad.Golder@mto.com Sarah.Boyce@mto.com
AMICI CURIAE MASSACHUSETTS UNIVERSITIES
Joseph M. Herlihy (BBO #548854) General Counsel Boston College 140 Commonwealth Avenue Chestnut Hill, Massachusetts 02467
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Case 1:17-cv-10154-NMG Document 68 Filed 02/03/17 Page 21 of 23
Tel.: 617-552-2855 joseph.herlihy.1@bc.edu
Erika Geeter (BBO # 635083) Vice President and General Counsel Sheila O’Leary(BBO #654920) Associate General Counsel Boston University Office of the General Counsel 125 Bay State Road Boston, Massachusetts 02215 Tel.: 617-353-2326 egeetter@bu.edu soleary1@bu.edu
Steven S. Locke (BBO # 559614) General Counsel Brandeis University MS 128 Brandeis University 415 South Street Waltham, MA 02454-9110 Tel.: 781-736-3017 slocke@brandeis.edu
Robert W. Iuliano (BBO #550215) Senior Vice President and General Counsel Deputy to the President Bradley E. Abruzzi (BBO #651516) University Counsel Harvard University Smith Campus Center, Suite 980 1350 Massachusetts Avenue Cambridge, Massachusetts 02138-3834 Tel.: 617-495-0876 robert_iuliano@harvard.edu bradley_abruzzi@harvard.edu
Mark C. DiVincenzo (BBO #552818) Vice President and General Counsel Dahlia S. Fetouh (BBO #651196) Counsel Office of the General Counsel Massachusetts Institute of Technology 77 Massachusetts Avenue, 7-206 Cambridge, MA 02139-4307 Tel.: 617-452-2082
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Case 1:17-cv-10154-NMG Document 68 Filed 02/03/17 Page 22 of 23
mdiv@mit.edu dfetouh@mit.edu Ralph C. Martin, II (BBO #322660) Senior Vice President and General Counsel Office of the General Counsel Northeastern University 360 Huntington Avenue – 378 CP Boston, Massachusetts 02115 Tel.: 617-373-8664 r.martin@neu.edu Mary R. Jeka (BBO #542004) Senior Vice President and General Counsel Tufts University Office of the General Counsel Ballou Hall, Third Floor Medford, MA 02155 Tel.: 617-627-4220 Mary.Jeka@Tufts.edu David A. Bunis (BBO #550570) Senior Vice President and General Counsel Worcester Polytechnic Institute 100 Institute Road Worcester, MA 01609-2280 Tel.: 508-831-4993 dabunis@wpi.edu
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CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent via mail to those indicated as non-registered participants on February 3, 2017.

/s/ Alan D. Rose

o

23

 
 Case 1:17-cv-10154-NMG Document 55 Filed 02/03/17 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MAZDAK POURABDOLLAH TOOTKABONI and ARGHAVAN LOUHGHALAM,
Plaintiff-Petitioners,
FATEMEH YAGHOUBI MOGHADAM, BABAK YAGHOUBI MOGHADAM, ALI SANIE, ZAHRASADAT MIRRAZI RENANI, LEILY AMIRSARDARY, and OXFAM AMERICA, INC.
Plaintiffs,
v.
DONALD TRUMP, President of the United States, et al.; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. McALEENAN, Acting Commissioner of CBP; and WILLIAM MOHALLEY, Boston Field Director, CBP,
Defendants.

No.17-cv-10154-NMG
LEAVE TO FILE GRANTED ON FEBRUARY 3, 2017

PLAINTIFF-PETITIONERS’ AND PLAINTIFFS’ RESPONSE IN SUPPORT OF CONTINUATION OF TEMPORARY RESTRAINING
ORDER AND TO SET BRIEFING SCHEDULE FOR EXPEDITED PRELIMINARY INJUNCTION
President Donald Trump’s January 27, 2017 Executive Order banning individuals from
seven majority-Muslim countries (“EO”)1 already is causing ongoing harm to Massachusetts
1The EO declares “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 suspends entry into the United States of nationals from those counties for 90 days, with narrow exceptions not relevant here. The seven countries that the United States government has determined fit the criteria in 8 U.S.C. § 1187(a)(12) are: 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. See Ex. A.

Case 1:17-cv-10154-NMG Document 55 Filed 02/03/17 Page 2 of 13
residents, and to the companies, hospitals, universities, non-profits, and all other forms of commerce that operate in the Commonwealth. Across the country, numerous courts have made preliminary findings that the EO is likely unlawful and on that basis have issued temporary restraining orders or other preliminary relief.2
Plaintiff - Petitioners Arghavan Louhghalam and Mazdak Pourabdollah Tootkaboni, and Plaintiffs Fatemeh Yaghoubi Moghadam, Babak Yaghoubi Moghadam, Ali Sanie, Zahrasadat Mirrazi Renani, Leily Amirsardary, and Oxfam America, Inc. (collectively, “Plaintiffs”) respectfully submit that the Temporary Restraining Order entered in this action on January 29, 2017 should likewise remain intact while the parties brief and argue a forthcoming motion for a preliminary injunction.3
This case began on January 28, 2017, when two lawful permanent residents filed their petition for habeas corpus and a complaint to challenge their unlawful detention at Logan Airport under the EO. See ECF No. 1. On January 29, 2017 this Court issued a temporary restraining order (“TRO”), following the appearance and argument by counsel to Plaintiffs and Defendants. See ECF No. 6. The TRO restored the status quo existing prior to the EO, by ordering the federal government (including all of its “officers, agents, servants, employees, attorneys, and all members and persons acting in concert or participation with them”) to conduct itself as if no EO had issued, and to take steps to notify affected parties, including airlines, of the same.
The Court based the TRO on two findings of fact, which are as controlling today as they were less than a week ago when the TRO issued:
x “Absent a stay of removal, petitioners and others similarly situated, including lawful permanent residents, citizens, visa-holders, approved refugees and other individuals from nations who are subject to the January 27, 2017 Executive Order, are likely to suffer irreparable harm.” Id. ¶ 2.
2See Darweesh v. Trump, 1:17-cv-00480 (E.D.N.Y.); Vayeghan v. Kelly, 17-0702 (C.D. Cal.); Mohammed v. Trump, 2:17-cv-00786 (C.D. Cal.); see also Aziz v. Trump, 1:17-cv-116 (E.D. Va.) (granting TRO without specifically addressing likelihood of success). 3See Fed. R. Civ. P. 65(b)(2); State of Me. v. Fri., 483 F.2d. 439, 440 (1st Cir. 1973); 11 Wright and Miller, Federal Practice & Procedure: Civil § 2953 at 521 (1973).
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x “The balance of harms favors the issuance of this temporary restraining order and its issuance is in the public interest.” Id. ¶ 3. Notably, each of the individual Plaintiffs in this action is lawfully in the United States.4
Each followed the process established by the federal government for lawful entry, which requires their thorough background check and vetting, after which a United States Consular Office granted them visas to enter and live in the country. Plaintiffs include a Massachusetts small business owner, two professors at University of Massachusetts, an engineer employed at Becton Dickinson and his sister, an injured man who requires medical treatment by his doctor in Iran, and a linguistics Ph.D. student at University of Massachusetts. See Amended Complaint (Compl.) at ¶¶ 52-111. None of the Plaintiffs pose any threat of terrorist activity and none of them has any criminal record in Iran or the United States. All are law-abiding, productive individuals, and Defendants have not introduced any evidence to the contrary.
Plaintiffs allege specific, compelling reasons to travel internationally during the 90-day ban, and explain why their inability to do so is causing irreparable harm. See id.5 If they were not Iranian nationals, and instead nationals of any country in the world other than the seven Muslim-majority countries subject to the EO, they still would be legally entitled to conduct travel abroad, knowing that they could return to the United States.
Oxfam America, Inc. (“Oxfam”) is also a plaintiff. Oxfam is part of a 19-member confederation of non-governmental development organizations—Oxfam International— dedicated to creating lasting solutions to hunger, poverty, and social injustice through long-term partnerships with poor communities around the world, and by responding to life-threatening emergencies. Oxfam operates in five of the seven countries affected by the EO. It is essential for Oxfam’s business that its staff members and civil society partners are able to travel from the affected countries to the U.S. Many people who bear witness on Oxfam’s behalf about their
4The Amended Complaint filed on January 31, 2017 added six (6) individual Plaintiffs and Oxfam. See ECF No. 28. 5See also Affidavit of Mazdak Pourabdollah Tootkaboni, signed February 2, 2017, attached hereto as Exhibit B; Affidavit of Babak Yaghoubi Moghadam, signed February 2, 2017, attached hereto as Exhibit C; Affidavit of Ali Sanie, signed February 2, 2017, attached hereto as Exhibit D; Affidavit of Zahrasadat Mirrazi Renani, signed February 2, 2017, attached hereto as Exhibit E; Affidavit of Leily Amirsardary, signed February 2, 2017, attached hereto as Exhibit F; Affidavit of Raymond C. Offenheiser, signed February 2, 2017, attached hereto as Exhibit G.
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experiences and conditions in their countries must come to the U.S. to do so because they cannot safely or legally speak publicly at home.
Oxfam currently expects that several people will be traveling to the U.S. from the affected countries within the next 90 days. Those expected to travel include a representative of a partner organization in Syria, who has been invited to speak at public events in mid-March marking six years since the start of the Syria crisis, to raise awareness and suggest potential solutions to government officials, the media, and the public. Application of the EO will therefore irreparably impair Oxfam’s ability to advocate on its behalf and on behalf of the people Oxfam assists in the developing world.6
ARGUMENT I. Extending the Temporary Restraining Order Is Appropriate Where, As Here, The
Movants Are Likely To Succeed On The Merits And The Balance Of Harms Weighs In Favor Of The Movants.
The TRO is properly based on the four factor determination of Plaintiffs’ entitlement to equitable relief. See, e.g., Vaqueria Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464, 482 (1st Cir. 2009) (citing Waldron v. George Weston Bakeries, Inc., 570 F.3d 5, 9 (1st Cir. 2009); 178 Lowell St. Operating Co., LLC v. Nichols, 152 F. Supp. 3d 47, 53 (D. Mass. 2016). Since the TRO issued, the EO remains unchanged, and its devastating effect on the constitutional rights of Plaintiffs continues.7
A. Plaintiffs have demonstrated a likelihood of success in their claims. The Amended Complaint, supported by the sworn declarations submitted with this Memorandum at Exhibits B-G, establish a strong likelihood that Plaintiffs will succeed on the
6See Affidavit of Raymond C. Offenheiser, signed February 2, 2017, attached hereto as Exhibit G. 7The February 1, 2017 White House Memo entitled “Authoritative Guidance on Executive Order Entitled ‘Protecting the Nation from Foreign Terrorist Entry into the United States,” ECF No. 50-1 (February 1 Memo)— which purports to interpret the EO to exclude lawful permanent residents—neither officially amends the EO nor addresses the two individual Plaintiffs who are not lawful permanent residents.
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merits of all of their claims.8 Plaintiffs address only a few examples here, namely, the Equal Protection Claim (Count I) and the First Amendment Claim (Count V).
1. Probability of Success on the Equal Protection Claims The individual Plaintiffs have demonstrated that they are likely to succeed on the Equal Protection claims alleged in Count I of the Amended Complaint. In addition to discriminating on its face on the basis of Plaintiffs’ country of origin, the EO also discriminates on the basis of religion. In fact, this is the rare case in which the government has publicly disclosed its intention to discriminate against Plaintiffs based on their religion. President Trump has publicly stated his support for a “total and complete shutdown of Muslims entering the United States,” reportedly directed his advisors to implement that “shutdown” using the language of the law, and then enacted the resulting prohibition on seven majority-Muslim countries just one week after coming into office. See Amended Complaint at ¶¶ 29-30. The EO not only discriminates against Muslims; through its provisions favoring refugee admission of religious minorities, the EO also implements President Trump’s policy to favor Christians over Muslims from Muslim-majority countries. See Amended Complaint at ¶ 31. The Fifth Amendment’s Equal Protection Clause prohibits classifications on the basis of national origin and on religion—including laws or policies enacted with discriminatory intent or applied in a discriminatory manner—unless narrowly tailored to serve a compelling government interest. Larson v. Valente, 456 U.S. 228, 244, 246 (1982); Anderson ex rel. Dowd v. City of Boston, 375 F.3d 71, 82-83 (1st Cir. 2004) (citing Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265 (1977)); Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995). The EO is not narrowly tailored to serve a compelling interest. First, it does not serve a compelling interest—and, in fact, does not serve a legitimate interest at all—because its purpose
8The individual Plaintiffs also have demonstrated that they are also likely to succeed on the Establishment Clause claims (Count II), Due Process claims (Count III) and APA claims (Count IV) for the reasons alleged in the Amended Complaint.
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is to discriminate against Muslims, not to promote security. In fact, because its purpose was to implement a discriminatory campaign promise, the EO was developed without the advice of the agencies responsible for homeland security, defense, and the admission of immigrants. Amended Complaint at ¶ 32. Second, even if that were not the case, the EO is rationally related, much less narrowly tailored, to serve any interest in security. It applies a blanket prohibition affecting tens of thousands of visa holders who have already been thoroughly vetted by the U.S. government, without any reason to believe that any of them pose a risk to national security.

Foreign State

Nonimmigrant Visas Issued in FY2015

Iran

35,363

Iraq

13,499

Syria

10,061

Yemen

4,525

Sudan

5,080

Libya

3,303

Somalia

331

72,162 Figure 1: See U.S. State Department Detail Table “Nonimmigrant Visa Issuances by Visa Class and by Nationality”9

Individual Plaintiffs therefore are likely to succeed in their claim that the EO violates

their equal protection right to be free from religious and national origin discrimination.

9See Glenn Kessler, The number of people affected by Trump’s travel ban: About 90,000, Wash Post. (Jan. 30, 2017).
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2. Probability of Success on Oxfam’s First Amendment Claims
Plaintiff Oxfam has demonstrated that it is likely to succeed on the First Amendment Claims alleged in Count V of the Amended Complaint. The First Amendment protects the right “to receive information and ideas.” Kleindienst v. Mandel, 408 U.S. 753, 763 (1972) (quotation omitted). This includes to the right to “hear, speak, and debate with” non-immigrants and lawful permanent residents. American Academy of Religion v. Napolitano, 573 F.3d 115, 117 (2d Cir. 2009) (quotation marks omitted); American Sociological Ass’n v. Chertoff, 588 F. Supp. 2d 166, 169 (D. Mass 2008). The preservation of this right is particularly important for academic, research, and policy organizations, whose very missions require a robust exchange of ideas among diverse groups of people. Cf. Kleindienst, 408 U.S. at 763. The First Amendment also protects “the right to petition the government for redress.” U.S. CONST. Amend. I.
The EO significantly burdens Oxfam’s First Amendment rights. In-person meetings with individuals from the affected countries enable Oxfam to receive critical information from their overseas colleagues and are essential to its ability to carry out its activities in the United States. Ex G ¶6. Many of these individuals could not share this information remotely “because they cannot safely or legally speak publicly at home.” Id. ¶10. In addition, international visits are critical to the organization because they “provide opportunities for people who are intimately familiar with country conditions to bear witness on Oxfam’s behalf in direct communication with members of the organization’s key American constituencies,” including “lawmakers in the United States’ House of Representatives and Senate and members of the executive branch.” Id.¶¶ 6-7. For example, right before President Trump signed the EO, Oxfam was “requested to send [its] Country Director from one of the listed countries to Washington to brief on a key, time-sensitive issue under consideration across the White House, the Department of the Treasury, and the Department of State.” Id. ¶8. “To comply with the United States Government’s own timeline for action,” the meeting was to be held within the 90-day period of the visa ban.” Because of the EO, “that meeting will now be impossible.” Id.
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The EO therefore burdens Oxfam’s right to both “hear, speak and debate with” nonimmigrants and to petition the government. It is neither substantially related to an important government interest, nor narrowly tailored to a compelling government interest. Indeed, the EO is not even justified by any facially legitimate and bona fide reason. Consequently, Oxfam is likely to succeed in its claim that Defendants’ enforcement of the EO and exclusion of Oxfam’s employees and affiliates residing and working in the affected countries violates the First Amendment rights of Oxfam, its employees, and affiliated representatives and professionals.
B. Plaintiffs will suffer irreparable harm if the TRO is not extended. Enforcement of the Executive Order will inflict irreparable harm on plaintiffs. First, the Executive Order does not disclaim the authority to re-detain Arghavan Louhghalam and Mazdak Pourabdollah Tootkaboni, without notice, at any time. Second, the Executive Order will prevent plaintiffs from undertaking international travel to attend to important family, health, and career needs.10 Plaintiffs Fatemeh and Babak Yaghoubi Moghadam will be unable to visit their brother in Iran, who recently suffered a heart attack, while Plaintiff Zahra Renani will be unable to comfort her parents in the wake of her brother’s tragically sudden death in Iran. Compl., ¶¶ 7072, 78-80; Ex. E, ¶ 8. Plaintiff Ali Sanie will be denied the medical care he needs to return to a normal life. Ex. D ¶¶ 3-5, 7-9. And plaintiff Leily Amirsardary will be unable to grow her business. Ex. F ¶¶ 8-11. Even if these plaintiffs had no uniquely urgent plans to leave and return to the United States, they still would be irreparably harmed by the Executive Order. If one of their family members suddenly has a health crisis overseas, if a career suddenly requires international travel, or if an educational or cultural opportunity suddenly presents itself, each plaintiff will have to
10The various press releases and other clarifications issued by the government since January 27 cannot moot this case because they do not amend the EO itself, and thus do not rescind the authority it purports to create. United States v. W.T. Grant Co., 345 U.S. 629, 630 (1961). (“[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case[.]”). Moreover, the February 1 memo does not alleviate the harm, as plaintiffs “have seen the government quickly shift what it has been saying numerous times over the past week” and “feel that the U.S. government could change its position at any time.” Ex. C ¶8; see also Ex. B ¶8. If anything, this scramble to cabin the chaos unleashed by the EO highlights the need for temporary injunctive relief; unlike a press release or memo issued by a party in litigation, a TRO is more capable of ensuring predictable behavior while a preliminary injunction motion is litigated.
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choose between staying in the United States or leaving without any hope of return. Indeed, that is why noncitizens work so hard to secure visas, and why the government so thoroughly vets them: visas deliver the freedom to leave and come back. To say that the withdrawal of that right is not irreparably harmful unless people had imminent plans to leave would be like saying that house arrest does not irreparably harm someone who had prior plans to stay home for the day.
Oxfam also will be irreparably harmed. Precisely because it works to help people in countries hardest hit by poverty and life-threatening hardship, its work requires bringing in people from around the world to strategize, problem-solve, and petition public officials in the United States to take concrete steps to alleviate suffering in other countries. Ex. G ¶¶ 6-11. These meetings often must be in person because “[m]any people who bear witness on [Oxfam’s] behalf about their experiences and conditions in their countries must come to the United States to do so because they cannot safely or legally speak publicly at home.” Id. ¶ 10. By prohibiting people in the banned countries from coming to the United States, the Executive Order makes it immeasurably harder for Oxfam to address the unique needs of people in those countries and to persuade public officials that those people deserve even more developmental assistance, education funding and humanitarian relief – not baseless targeting and marginalization.
Finally, extending the TRO is necessary to prevent irreparable harm to people all over the world.11 Just today, the airline Lufthansa issued this alert:
Admission will be refused to visitors with a passport issued by 7 countries - Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen - and holding a valid immigrant or nonimmigrant visa for the US.
*** Due to a decision (Temporary Restraint Order) by the District Court in Massachusetts, the above mentioned Order is suspended on flights to BOS for the time being until
11Because the document purportedly issued by Edward J. Ramotowski on January 27, 2017 stating “I hereby revoke all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen” was issued “in implementation of section 3(c)” of the EO, any reliance on the letter would also violate the TRO. ECF No. 23-1.
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February 5th, 2017. All passengers with valid travel documents are eligible to board on LH-flights to BOS.12
If the TRO is lifted, this beacon of hope will instantaneously disappear. People who had been issued visas by the U.S. government may be stranded overseas or at connecting destinations. Confusion will be rampant. People might even be stuck at airports, caught between the international location they have departed and a country that will suddenly no longer accept them. II. The balance of harm weighs in plaintiffs’ favor.
The events of the last week demonstrate that the balance of harms overwhelmingly warrants extending the TRO. It is, in fact, a case study in imposing harm on people and organizations for no good reason.
Notwithstanding the TRO’s existence and the relief that has been ordered in other cases, the government has apparently succeeded in implementing the Executive Order to some extent. Some people have been detained at airports. Others, including the five individual plaintiffs added to the amended complaint, can no longer make plans to leave the country. See Ex. B ¶6; Ex. C ¶5; Ex. D ¶9; Ex. E ¶11; Ex. F ¶11. Many noncitizens abroad have been prevented from returning to their homes, jobs, and lives in the United States.13 And businesses and organizations, including Oxfam, have had their work cut off at the legs. See Ex. G ¶ 11.
On the other side of the ledger, there is essentially nothing. The government has not identified any harm that has been abated by abruptly stranding overseas scores of people who seek to return to their jobs and studies in the United States, preventing the overseas travel of many more who already live and work in this country, and keeping out other previously vetted travelers. Because the EO inflicts senseless harm on thousands of people and the institutions, and brings no known benefits, the balance of harms weighs heavily in Plaintiffs’ favor.
12http://www.lufthansa.com/de/en/Travel-information (last visited Feb. 2, 2017). 13See, e.g., Thomas Erdbrink, Unable to Enter U.S., and Still Stranded Abroad, N.Y. Times (Jan. 31, 2017).
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III. The TRO is in the public interest. The public interest will not be served by allowing confusion, chaos, and suffering to
continue unabated while this case unfolds. Together with this motion, Plaintiffs and the Commonwealth are submitting declarations that describe just some of the ways the public will be harmed if temporary relief is not extended. These declarations demonstrate that the EO irreparably harms not only individuals, but also the critical educational, business, technology, and policy institutions that depend to a large extent on the talents of individuals from around the world, including the seven countries impacted by the EO. See Ex. G (Oxfam); ECF No. 52 (University of Massachusetts, University of Massachusetts Medical School, Boston College, Boston Architectural College, TripAdvisor; Nano-C, Inc., The Broad Institute). Because stranding individuals overseas and preventing the back-and-forth travel of those who live and work in the United States has created chaos and impeded the day-to-day function of vital sectors of civil society and the economy, extending the TRO is in the public interest.
CONCLUSION Accordingly, for all of the reasons detailed above, Plaintiffs respectfully request that the TRO remain intact while the parties brief and argue a forthcoming motion for a preliminary injunction.
Respectfully submitted, /s/ Susan Church Susan Church (BBO #639306) Derege Demissie (BBO #637544) Heather Yountz (BBO # 669770) DEMISSIE & CHURCH 929 Mass. Ave., Suite 1 Cambridge, MA 02139 (617) 354-3944
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Case 1:17-cv-10154-NMG Document 55 Filed 02/03/17 Page 12 of 13

Date: February 3, 2017

/s/ Michael S. Gardener Michael S. Gardener (BBO #185040) Elizabeth B. Burnett (BBO #066120) Peter A. Biagetti (BBO #042310) Susan M. Finegan (BBO #559156) Andrew N. Nathanson (BBO #548684) Susan J. Cohen (BBO #546482) MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. One Financial Center Boston, MA 02111 (617) 542-6000 smfinegan@mintz.com Date: February 2, 2017
/s/ Kerry E. Doyle Kerry E. Doyle (BBO #565648) GRAVES & DOYLE 100 State Street, 9th Floor Boston, MA 02109 (617) 216-1248
/s/ Matthew R. Segal Matthew R. Segal (BBO #654489) Sarah Wunsch (BBO #548767) Jessie J. Rossman (BBO #670685) Laura Rotolo (BBO #665247) Adriana Lafaille (BBO #680210) ACLU FOUNDATION OF MASSACHUSETTS 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org

12

Case 1:17-cv-10154-NMG Document 55 Filed 02/03/17 Page 13 of 13

CERTIFICATE OF SERVICE I, Michael S. Gardener, hereby certify that the foregoing document will be filed through the ECF system on February 3, 2017, which will cause counsel for all parties to be electronically served.

Respectfully submitted,

/s/ Michael S. Gardener Michael S. Gardener

CERTIFICATE OF COMPLIANCE WITH L.R. 7.1 I, Matthew R. Segal, hereby certify that I have conferred with counsel for the defendants

in an effort to resolve or narrow the issues raised by this motion. Defendants oppose the

extension of the TRO.

Respectfully submitted, /s/ Matthew R. Segal Matthew R. Segal

13

Case 1:17-cv-10154-NMG Document 55-1 Filed 02/03/17 Page 1 of 9
Exhibit A

CCaassee11:1:177--ccvv--1100115544--NNMMGG DDooccuummeenntt525--11 FFilieledd0012/2/083/1/177 PPaaggee12ooff89

The White House Office of the Press Secretary For Immediate Release

January 25, 2017

Executive Order: Border Security and Immigration Enforcement Improvements

EXECUTIVE ORDER
- - - - - - -
BORDER S ECURITY AND IMMIGRATION ENFORCEMENT IMPROVEMENTS
By the authority vested in me as President by the Constitution and the laws of the United S tates of America, including the Immigration and Nationality Act (8 U.S .C. 1 1 01 et seq.) (INA), the S ecure Fence Act of 2006 (Public Law 1 09 367) (S ecure Fence Act), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1 996 (Public Law 1 04 208 Div. C) (IIRIRA), and in order to ensure the safety and territorial integrity of the United S tates as well as to e nsure that the Nation's immigration laws are faithfully executed, I hereby order as follows:
S ection 1 . Purpose. Border security is critically important to the national security of the United S tates. Aliens who illegally enter the United S tates without inspection or admission present a significant threat to national security and public safety. S uch aliens have not been identified or inspected by Federal immigration officers to determine their admissibility to the United S tates. The recent surge of ille gal immigration at the southern border with Mexico has placed a significant strain on Federal resources and overwhelmed agencies charged with border security and immigration enforcement, as well as the local communities into which many of the aliens are placed.
Transnational criminal organizations operate sophisticated drug - and humantrafficking networks and smuggling operations on both sides of the southern border,

CCaassee11:1:177--ccvv--1100115544--NNMMGG DDooccuummeenntt525--11 FFilieledd0012/2/083/1/177 PPaaggee23ooff89
contributing to a significant increase in violent crime and United S tates deaths from dangerous drugs. Among those who illegally enter are those who seek to harm Americans through acts of terror or criminal conduct. Continued illegal immigration presents a clear and present danger to the interests of the United S tates.
Federal immigration law both imposes the responsibility and provides the means for the Federal Government, in cooperation with border S tates, to secure the Nation's southern border. Although Federal immigration law provides a robust framework for Federal-S tate partnership in enforcing our immigration laws and the Congress has authorized and provided appropriations to secure our borders the Federal Government has failed to discharge this basic sovereign responsibility. The purpose of this order is to direct executive departments and agencies (agencies) to deploy all lawful means to secure the Nation's southern border, to prevent further illegal immigration into the United S tates, and to repatriate illegal aliens swiftly, consistently, and humanely.
S ec. 2. Policy. It is the policy of the executive branch to:
(a) secure the southern border of the United S tates through the immediate construction of a physical wall on the southern border, monitored and supported by adequate personnel so as to prevent illegal immigration, drug and human trafficking, and acts of terrorism;
(b) detain individuals apprehended on suspicion of violating Federal or S tate law, including Federal immigration law, pending further proceedings regarding those viola tions ;
(c) expedite determinations of apprehended individuals' claims of eligibility to remain in the United S tates;
(d) remove promptly those individuals whose legal claims to remain in the United S tates have been lawfully rejected, after any appropriate civil or criminal sanctions have been imposed; and
(e) cooperate fully with S tates and local law enforcement in ena cting Federal-S tate partnerships to enforce Federal immigration priorities, as well as S tate monitoring and detention programs that are consistent with Federal law and do not undermine Federal immigration priorities.

CCaassee11:1:177--ccvv--1100115544--NNMMGG DDooccuummeenntt525--11 FFilieledd0012/2/083/1/177 PPaaggee34ooff89
S ec. 3. Definitions. (a) "Asylum officer" has the meaning given the term in section 235(b)(1 )(E) of the INA (8 U.S .C. 1 225(b)(1 )).
(b) "S outhern border" shall mean the contiguous land border between the United S tates and Mexico, including all points of entry.
(c) "Border S tates" shall mean the S tates of the United S tates immediately adjacent to the contiguous land border between the United S tates and Mexico.
(d) Except as otherwise noted, "the S ecretary" shall refer to the S ecretary of Homeland S ecurity.
(e) "Wall" shall mean a contiguous , physical wall or other similarly secure, contiguous, and impassable physical barrier.
(f) "Executive department" shall have the meaning given in section 1 01 of title 5, United S tates Code.
(g) "Regulations" shall mean any and all Federal rules, regulations, and directives lawfully promulgated by agencies.
(h) "Operational control" shall mean the prevention of all unlawful entries into the United S tates, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband.
S ec. 4. Physical S ecurity of the S outhern Border of the United S tates. The S ecretary shall immediately take the following steps to obtain complete operational control, as determined by the S ecretary, of the southern border:
(a) In accordance with existing law, including the S ecure Fence Act and IIRIRA, take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border, using appropriate materials and technology to most effectively achieve complete operational control of the southern border;
(b) Identify and, to the extent permitted by law, allocate all sources of Federal funds for the planning, designing, and constructing of a physical wall along the southern borde r;

CCaassee11:1:177--ccvv--1100115544--NNMMGG DDooccuummeenntt525--11 FFilieledd0012/2/083/1/177 PPaaggee45ooff89
(c) Project and develop long-term funding requirements for the wall, including preparing Congressional budget requests for the current and upcoming fiscal years; and
(d) Produce a comprehensive study of the security of the southern border, to be completed within 1 80 days of this order, that shall include the current state of southern border security, all geophysical and topographical aspects of the southern border, the availability of Federal and S tate resources necessary to achieve complete operational control of the southern borde r, and a strategy to obtain and maintain complete operational control of the southern border.
S ec. 5. Detention Facilities. (a) The S ecretary shall take all appropriate action and allocate all legally available resources to immediately construct, operate, control, or establish contracts to construct, operate, or control facilities to detain aliens at or near the land border with Mexico.
(b) The S ecretary shall take all appropriate action and allocate all legally available resources to immediately assign asylum officers to immigration detention facilities for the purpose of accepting asylum referrals and conducting credible fear determinations pursuant to section 235(b)(1 ) of the INA (8 U.S .C. 1 225(b)(1 )) and applicable regulations and reasonable fear determinations pursuant to applicable regulations.
(c) The Attorney General shall take all appropriate action and allocate all legally available resources to immediately assign immigration judges to immigration detention facilities operated or controlled by the S ecretary, or operated or controlled pursuant to contract by the S ecretary, for the purpose of conducting proceedings authorized under title 8, chapter 1 2, subchapter II, United S tates Code.
S ec. 6. Detention for Illegal Entry. The S ecretary shall immediately take all appropriate actions to ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings or their removal from the country to the extent permitted by law. The S ecretary shall issue new policy guidance to all Department of Homeland S ecurity personnel regarding the appropriate and consistent use of lawful detention authority under the INA, including the termination of the practice commonly known as "catch and release," whereby aliens are routinely released in the United S tates shortly after their apprehension for violations of immigration law.

CCaassee11:1:177--ccvv--1100115544--NNMMGG DDooccuummeenntt525--11 FFilieledd0012/2/083/1/177 PPaaggee56ooff89
S ec. 7. Return to Territory. The S ecretary shall take appropriate action, consistent with the requirements of section 1 232 of title 8, United S tates Code, to ensure that aliens described in section 235(b)(2)(C) of the INA (8 U.S .C. 1 225(b)(2)(C)) are returned to the territory from which they came pending a formal removal proceeding.
S ec. 8. Additional Border Patrol Agents. S ubject to available appropriations, the S ecretary, through the Commissioner of U.S . Customs and Border Protection, shall take all appropriate action to hire 5,000 additional Border Patrol agents, and all appropriate action to ensure that such agents enter on duty and are assigned to duty stations as soon as is practicable.
S ec. 9. Foreign Aid Reporting Requirements. The head of each executive department and agency shall identify and quantify all sources of direct and indirect Federal aid or assistance to the Government of Mexico on an annual basis over the past five years, including all bilateral and multilateral development aid, economic assistance, humanitarian aid, and military aid. Within 30 days of the date of this order, the head of each executive department and a gency shall submit this information to the S ecretary of S tate. Within 60 days of the date of this order, the S ecretary shall submit to the President a consolidated report reflecting the levels of such aid and assistance that has been provided annually, over each of the past five years.
S ec. 1 0. Federal-S tate Agreements. It is the policy of the executive branch to empower S tate and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United S tates to the maximum extent permitted by law.
(a) In furtherance of this policy, the S ecretary shall immediately take appropriate action to engage with the Governors of the S tates, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S .C. 1 357(g)).
(b) To the extent permitted by law, and with the consent of S tate or local officials, as appropriate, the S ecretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize S tate and local law enforcement officials, as the S ecretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United S tates under the direction and the supervision of the

CCaassee11:1:177--ccvv--1100115544--NNMMGG DDooccuummeenntt525--11 FFilieledd0012/2/083/1/177 PPaaggee67ooff89
S ecretary. S uch authorization shall be in addition to, rather than in place of, Federal performance of these duties.
(c) To the extent permitted by law, the S ecretary may structure e ach agreement under section 287(g) of the INA in the manner that provides the most effective model for enforcing Federal immigration laws and obtaining operational control over the border for that jurisdiction.
S ec. 1 1 . Parole, Asylum, and Removal. It is the policy of the executive branch to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.
(a) The S ecretary shall immediately take all appropriate action to ensure that the parole and asylum provisions of Federal immigration law are not illegally exploited to prevent the removal of otherwise removable aliens.
(b) The S ecretary shall take all appropriate action, including by promulgating any appropriate regulations, to ensure that asylum referrals and credible fear determinations pursuant to section 235(b)(1 ) of the INA (8 U.S .C. 1 1 25(b)(1 )) and 8 CFR 208.30, and reasonable fear determinations pursuant to 8 CFR 208.31 , are conducted in a manner consistent with the plain language of those provisions.
(c) Pursuant to section 235(b)(1 )(A)(iii)(I) of the INA, the S ecretary shall take appropriate action to apply, in his sole and unreviewable discretion, the provisions of section 235(b)(1 )(A)(i) and (ii) of the INA to the aliens designated under section 235(b)(1 )(A)(iii)(II).
(d) The S ecretary shall take appropriate action to ensure that parole authority under section 21 2(d)(5) of the INA (8 U.S .C. 1 1 82(d)(5)) is exercised only on a case -by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.
(e) The S ecretary shall take appropriate action to require that all Department of Homeland S ecurity personnel are properly trained on the proper application of section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S .C. 1 232) and section 462(g)(2) of the Homeland S ecurity Act of 2002 (6 U.S .C. 279(g)(2)), to ensure that unaccompanied alien children are properly

CCaassee11:1:177--ccvv--1100115544--NNMMGG DDooccuummeenntt525--11 FFilieledd0012/2/083/1/177 PPaaggee78ooff89
processed, receive appropriate care and placement while in the cus tody of the Department of Homeland S ecurity, and, when appropriate, are safely repatriated in accordance with law.
S ec. 1 2. Authorization to Enter Federal Lands. The S ecretary, in conjunction with the S ecretary of the Interior and any other heads of agencies as necessary, shall take all appropriate action to:
(a) permit all officers and employees of the United S tates, as well as all S tate and local officers as authorized by the S ecretary, to have access to all Federal lands as necessary and appropriate to implement this order; and
(b) enable those officers and employees of the United S tates, as well as all S tate and local officers as authorized by the S ecretary, to perform such actions on Federal lands as the S ecretary deems necessary and appropriate to implement this order.
S ec. 1 3. Priority Enforcement. The Attorney General shall take all appropriate steps to establish prosecution guidelines and allocate appropriate resources to ensure that Federal prosecutors accord a high priority to prosecutions of offenses having a nexus to the southern border.
S ec. 1 4. Government Transparency. The S ecretary shall, on a monthly basis and in a publicly available way, report statistical data on aliens apprehended at or near the southern border using a uniform method of reporting by all Department of Homeland S ecurity components, in a format that is easily understandable by the public.
S ec. 1 5. Reporting. Except as otherwise provided in this order, the S ecretary, within 90 days of the date of this order, and the Attorney General, within 1 80 days, shall each submit to the President a report on the progress of the directives contained in this order.
S ec. 1 6. Hiring. The Office of Personnel Management shall take appropriate action as may be necessary to facilitate hiring personnel to implement this order.
S ec. 1 7. 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

CCaassee11:1:177--ccvv--1100115544--NNMMGG DDooccuummeenntt525--11 FFilieledd0012/2/083/1/177 PPaaggee89ooff89
(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 S tates, its departments, agencies, or entities, its officers, employees, or agents, or any other pe rs on.
DONALD J. TRUMP THE WHITE HOUS E,
January 25, 201 7.

Case 1:17-cv-10154-NMG Document 55-2 Filed 02/03/17 Page 1 of 4
Exhibit B

Case 1:17-cv-10154-NMG Document 55-2 Filed 02/03/17 Page 2 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MAZDAK POURABDOLLAH TOOTKABONI and ARGHAVAN LOUHGHALAM,
Plaintiff-Petitioners,

FATEMEH YAGHOUBI MOGHADAM, BABAK YAGHOUBI MOGHADAM, ALI SANIE, ZAHRASADAT MIRRAZI RENANI, LEILY AMIRSARDARY, and OXFAM AMERICA, INC.
Plaintiffs,

v.

No.17-cv-10154-NMG

DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”);; U.S. CUSTOMS AND BORDER PROTECTION (“CBP”);; JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WILLIAM MOHALLEY, Boston Field Director, CBP,
Respondents-Defendants.

AFFIDAVIT OF MAZDAK POURABDOLLAH TOOTKABONI Mazdak Pourabdollah Tootkaboni, hereby affirms, 1. I am one of the Petitioner-Plaintiffs in this case. 2. My wife Petitioner-Plaintiff Arghavan Louhghalam and I are Iranian nationals, we are Muslim, and we both are lawful permanent residents of the United States. 3. My wife and I are also professors on the faculty of the University of Massachusetts-Dartmouth. I am an associate professor in the UMass-Dartmouth College of Engineering. I obtained a Ph.D. in 2009 in civil engineering, specializing

1

Case 1:17-cv-10154-NMG Document 55-2 Filed 02/03/17 Page 3 of 4
in Structural Mechanics, from Johns Hopkins University and have been on the faculty at UMass-Dartmouth since 2010. My research is cross-disciplinary and focuses on developing techniques that help structural mechanics community move towards more reliable, resource-efficient and resilient solutions for civil infrastructures. I am a recipient of the NSF early CAREER award in 2014, a recipient of University of Massachusetts President’s Science and Technology award for 2014-2015, and a recipient of UMass-Dartmouth Chancellor’s Sponsored Research Recognition award in 2015. I am an associate member of American Society of Civil Engineers (ASCE) and a member of Engineering Mechanics Institute (EMI).
4. In January, 2017, my wife and I traveled to Marseille, France to attend a week-long workshop on Mechanics of Porous Materials (e.g. cement, concrete, soil) organized through the AMU (Aix-Marseille University)-MIT-CNRS joined lab with the support of MIT Energy Initiative.
5. We returned, flying in to Logan Airport on January 28, 2017 from Paris Charles de Gaulle Airport. We were detained by Customs and Border Patrol officers for nearly four hours, for no apparent reason other than the President’s Executive Order affecting immigrants and refugees, the details of which we learned about after we were released. We were asked why we were in France and what our occupations were in US.
6. I am greatly concerned about the Executive Order. As a professor of engineering, I frequently attend meetings and conferences, and share research and ideas with others from my field around the world, including other faculty, students,
2

Case 1:17-cv-10154-NMG Document 55-2 Filed 02/03/17 Page 4 of 4
and researchers. Intellectual inquiry, debate, and discussion internationally are critical to the development of my research. Meeting with others in person is critical to the thorough exchange of ideas and is entirely different from communicating in other ways. If the court’s order staying the Executive Order does not remain in effect, I fear that it will be applied to me again and I cannot travel with the fear that I could not return.
7. I am also worried that if the Executive Order were applied to me again, it would make it impossible for me to leave the United States to visit my mother in Iran who is seventy years old and suffers from depression. Both she and I rely on my regular visits to see her. I would not be able to visit her if I feared being unable to return to my wife, my life, my work, and my home in the United States. Being separated from close family is difficult enough on a daily basis but being prevented from visiting for this reason is beyond distressing.
8. While I understand the Counsel to the President has issued a memo saying the EO now does not apply to lawful permanent residents like me, I am still afraid to travel because I have seen what people, caught off-guard and stranded in the middle of fast-paced changes and quick shifts in laws and policies, have been through over the past few days.
Signed under the penalty of perjury this 2nd day of February, 2017.
_______________________________ Mazdak Pourabdollah Tootkaboni
3

Case 1:17-cv-10154-NMG Document 55-3 Filed 02/03/17 Page 1 of 4
Exhibit C

Case 1:17-cv-10154-NMG Document 55-3 Filed 02/03/17 Page 2 of 4

Case 1:17-cv-10154-NMG Document 55-3 Filed 02/03/17 Page 3 of 4

Case 1:17-cv-10154-NMG Document 55-3 Filed 02/03/17 Page 4 of 4

Case 1:17-cv-10154-NMG Document 55-4 Filed 02/03/17 Page 1 of 3
Exhibit D

Case 1:17-cv-10154-NMG Document 55-4 Filed 02/03/17 Page 2 of 3

-ur4r-rnrs s-rA:rns Ens-ria_icu- COURT
DISTRICT OF /VIASSACI-3UUSIElf-TS

MAZE).A.1‹. POILJP-A.131DCZ.L..L--A.1-1 TOCYTKA.E10/,..11, and

A.R.G1-1A2V.A.1,4 _,Petiticerzefrw,

Civil Action.1‘.1c.. 17-cv-10154

11,0,1TAL.JD -FR_T_J/v1P, P'resiclent oftheUnited States,et al., .Re.s.pezerzarrzt.s_
121e4C'1....AJELATIC:91"..T CI,JF ALI S.A.1%/I1E. I, Ali Sanie, hereby deolare as follows:
1. My narre is Ali Sanie. I am an Iranfan citizen and a 1....awful Permanent Resident("L,PP..") ofthe United States_ I resicle in Quinoy,MA.. I have been a LPR since 2010. My sister, Sepiaela Sanie,is a United States citizen and resicles in 13raintree,
2_ I am.Muslim_ 3_ I work as a.cashier at a grc>cery store in 121raintree, MA.. I work seven clays a weelc and.I
developed serions neck issnes as a result. I went to the Ernergency Ftoom becanse ofthe paha that I was in and I was told I rnay neecl neck surgery_ 4. I wanz to see a doctor in Iran for any potential surgery because I know my old doctor there arid I can have family and friends in Iran care for rine after any surgery. My fa.ther resides in Iran. 5. I have been warrting to go back to Iran for a Fang time. I finally booked a trip to Iran for Jarmary 30,2017_ The pain in nay neck laad becarne unbearable. I hacl to travel at this

Case 1:17-cv-10154-NMG Document 55-4 Filed 02/03/17 Page 3 of 3
time to arrive in time to have any treatment for my severe neck pair'beföre P'ersiar,or Iranian New Year an March 20,2017 and to have time to recover aftervvards before corning back to the United Stetes. 6. I pre-paid three months ofrriy rent and my employer arranged to have coverage for my job for three rnonth for this trip. I sa.-vecl up mortey and plarmed for a trip for two years to be able to rnake a trip back to Iran. 7. I purchased gifts for my family in Iran. T had scheduled an 1,..112.1, physical therapy and time for surgery if necessary in Iran. I carmot work until I have medical help because I am in sc, much pain and I chaose to seck help vvith a cloctor in Iran. and -with rny father and friends in Iran to. help B. I was ernotionally very upset vvhen I had to abtut my long-avvaited trip tc,Iranjust at the last minuto. I was crying and nc,vv I am confuseci abcrut vvhat my future will hold. 9. I carmot go tc, vvork at rray _Job because my replacernent has been hired. I arra afraid to travel tc,Iran at this time because I fears that,ifI leave the United States,I will not be perrnitted to return to the -United States.
I declare under perialty ofperjury that the föregoing is true and.correct. Eacecutecl an February 2,2017.
Ali Sanie

Case 1:17-cv-10154-NMG Document 55-5 Filed 02/03/17 Page 1 of 4
Exhibit E

Case 1:17-cv-10154-NMG Document 55-5 Filed 02/03/17 Page 2 of 4

Case 1:17-cv-10154-NMG Document 55-5 Filed 02/03/17 Page 3 of 4

Case 1:17-cv-10154-NMG Document 55-5 Filed 02/03/17 Page 4 of 4

Case 1:17-cv-10154-NMG Document 55-6 Filed 02/03/17 Page 1 of 4
Exhibit F

Case 1:17-cv-10154-NMG Document 55-6 Filed 02/03/17 Page 2 of 4

Case 1:17-cv-10154-NMG Document 55-6 Filed 02/03/17 Page 3 of 4

Case 1:17-cv-10154-NMG Document 55-6 Filed 02/03/17 Page 4 of 4

Case 1:17-cv-10154-NMG Document 55-7 Filed 02/03/17 Page 1 of 5
Exhibit G

Case 1:17-cv-10154-NMG Document 55-7 Filed 02/03/17 Page 2 of 5

Case 1:17-cv-10154-NMG Document 55-7 Filed 02/03/17 Page 3 of 5

Case 1:17-cv-10154-NMG Document 55-7 Filed 02/03/17 Page 4 of 5

Case 1:17-cv-10154-NMG Document 55-7 Filed 02/03/17 Page 5 of 5

 
 Case 1:17-cv-10154-NMG Document 45 Filed 02/02/17 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ARGHAVAN LOUHGHALAM, et al.,

)

)

Petitioners/Plaintiffs,

)

)

v.

)

)

DONALD TRUMP, President of the

)

United States, et al.,

)

)

Respondents/Defendants.

)

Case No. 1:17-cv-10154

MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO CONTINUATION OF TEMPORARY RESTRAINING ORDER Respondents/Defendants (“Defendants” or “the Government”), by and through counsel, hereby move for an extension of time under Fed. R. Civ. P. 6(b) to file an opposition to the continuation of the Temporary Restraining Order entered on January 29, 2017 until 12:00 a.m. on February 3, 2017. Defendants state that good cause for such an extension exists: 1. On January 29, 2017, the Court issued a Temporary Restraining Order (“TRO”), which is set to expire on February 5, 2017 (ECF No. 6). 2. On February 1, 2017, after an assented-to extension of time, Petitioners/Plaintiffs (“Plaintiffs”) filed an amended complaint (ECF No. 28). 3. Also on February 1, 2017, this Court directed Defendants, if they intend to oppose the continuation of the TRO, to file a written response on or before 12:00 noon today, February 2, 2017 (ECF No. 36). 4. Defendants are diligently working on a thorough opposition to continuation of the TRO, but request a brief extension of time, until 12:00 a.m. on February 3, 2017, to file their opposition.

Case 1:17-cv-10154-NMG Document 45 Filed 02/02/17 Page 2 of 4
5. Additional time to submit the opposition is required in order for the Government to fully brief its opposition to the TRO, particularly in light of the substantial internal review necessary to address issues of national significance and the fact that Plaintiffs have recently amended their Complaint to include significantly changed allegations and causes of action.
6. Defendants conferred with Plaintiffs, who indicated that they would not assent to the request for an extension of time. Defendants are still conferring with Plaintiffs, however, as to whether the parties can resolve any issues relating to the status of the TRO.
7. The extension is not being sought in bad faith or for purposes of delay. For the foregoing reasons, Defendants respectfully request an extension of time to file an opposition to the continuation of the TRO until 12:00 a.m. on February 3, 2017.

February 2, 2017

Respectfully Submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director, Office of Immigration Litigation District Court Section
GISELA A. WESTWATER Senior Litigation Counsel Office of Immigration Litigation District Court Section
By: s/ Katherine J. Shinners KATHERINE J. SHINNERS DC Bar No. 978141 Trial Attorney U.S. Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station
2

Case 1:17-cv-10154-NMG Document 45 Filed 02/02/17 Page 3 of 4
Washington, DC 20044 Telephone: (202) 598-8259 Fax: (202) 305-7000 katherine.j.shinners@usdoj.gov
JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 Facsimile: (202) 305-7000 e-Mail: joshua.press@usdoj.gov
WILLIAM D. WEINREB, Acting U.S. Attorney District of Massachusetts
RAYFORD A. FARQUHAR BBO No. 560350 U.S. Attorney’s Office 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3284 rayford.farquhar@usdoj.gov
MICHAEL SADY BBO No. 552934 U.S. Attorney’s Office 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3362 michael.sady@usdoj.gov
Counsel for Respondents/Defendants
3

Case 1:17-cv-10154-NMG Document 45 Filed 02/02/17 Page 4 of 4 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 District of Massachusetts 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.
By: s/ Katherine J. Shinners KATHERINE J. SHINNERS DC Bar No. 978141 Trial Attorney U.S. Department of Justice, Civil Division Office of Immigration Litigation District Court Section
4

 
 Case 1:17-cv-10154-NMG Document 50 Filed 02/02/17 Page 1 of 8

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

ARGHAVAN LOUHGHALAM AND )

MAZDAK POURABDOLLAH

)

TOOTKABONI, et al.

)

)

Plaintiffs,

)

)

v.

)

)

DONALD J. TRUMP, et al.

)

)

Defendants.

)

)

Civil Action No.: 17-cv-10154-NMG

OPPOSITION TO CONTINUATION OF TEMPORARY RESTRAINING ORDER

Defendants, by and through counsel, hereby oppose the continuation of the Temporary

Restraining Order (“TRO”) entered on January 29, 2017 (ECF No. 6). The primary reason the Court

should decline to extend the TRO is that, assuming the truth of the allegations in the Amended

Complaint (ECF No. 28), the immediate need for the emergency relief Plaintiffs initially requested

has evaporated.

In this case, the original named Plaintiffs challenged the executive order of January 27,

2017 titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” (ECF No.

2) (hereinafter, “the Order”), alleging they were unlawfully detained upon entry into this country

on the basis of the Order. The resulting TRO thus addressed concerns of those affected by the

Order who were either in airports in the United States or in transit. At this point, however, all of

the named individual Plaintiffs are within the United States; none is alleged to be detained

(mooting any claim for habeas relief); and most of them are not affected by the Order at all given

the recent clarification that it does not apply to lawful permanent residents (“LPRs”) (commonly

1

Case 1:17-cv-10154-NMG Document 50 Filed 02/02/17 Page 2 of 8
referred to as “green-card holders”). The free-speech claims of the organizational Plaintiff (that is, their wish to have others physically present to hear what they have to say) similarly do not represent the type of immediate and irreparable harm that warrants a TRO rather than consideration on a preliminary-injunction schedule.
Consequently, none of the Plaintiffs has alleged circumstances that would lead to substantial injury should the TRO expire. In short, there is no reason the Court cannot allow the emergency order to expire and consider the merits of a preliminary injunction on a slightly less expedited schedule. Such a plan would allow the Government to present full briefing on why Plaintiffs are unlikely to succeed on their claims challenging the Order, particularly in light of the longstanding judicial doctrines granting the political branches broad power to control the admission of aliens into the United States. See, e.g., Kerry v. Din, 135 S. Ct. 2128, 2137 (2015); Kleindienst v. Mandel, 408 U.S. 753, 766 (1972); Landon v. Plasencia, 459 U.S. 21, 32 (1982); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953).
BACKGROUND The original Plaintiff-Petitioners, Messrs. Tootkaboni and Arghavan Louhghalam, natives and citizens of Iran, filed their petition for a writ of habeas corpus and complaint on January 28, 2017. (ECF No. 1; hereinafter, “Petition.”) They alleged therein that the LPRs being unlawfully detained at Logan International Airport as a consequence of the Order. (Petition at 2.) The Order suspended the entry of immigrants and non-immigrants from “Countries of Particular Concern,” including Iran, “for 90 days from the date of [the] order.” Order at Section 3; see also 8 U.S.C. § 1187(a)(12)(D)(ii) (requiring the Secretary of Homeland Security to identify countries of concern based on “(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
2

Case 1:17-cv-10154-NMG Document 50 Filed 02/02/17 Page 3 of 8
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”).
The President signed the Order at 4:48 p.m. (EST) on Friday, January, 27, 2017. That same day, the U.S. Department of State (“State Department”) issued a letter provisionally revoking all visas of nationals of Libya, Iran, Iraq, Somalia, Sudan, Syria, and Yemen (subject to certain exceptions) under the authority of 8 U.S.C. §§ 1182(f), 1201(i), and 22 C.F.R. §§ 41.122, 42.82. (ECF No. 23.)
In their Petition, Plaintiff-Petitioners alleged that they arrived at Logan International Airport at approximately 5:30 p.m. (EST) on Saturday, January 28, 2017, and were held therein by U.S. Customs and Border Protection (“CBP”) until at least the time their petition was filed. Petition at 2. The Court held a hearing on their request for a temporary restraining order at 11:34 p.m. that same evening. (ECF No. 17; Hearing Regarding Temporary Restraining Order, Tr. at 2:2 (Jan. 28–29, 2017)). At the time the hearing commenced, counsel for Petitioners acknowledged that their clients were no longer being held by CBP. (Id. at 7:1-2.) The Court nonetheless heard argument and on Sunday, January 29, 2017, granted Plaintiff-Petitioners’ request for a TRO, and ordered Petitioners to file an amended complaint by January 30, 2017. (ECF No. 6). After seeking a two-day extension, Petitioners filed their Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief, adding five individual Plaintiffs and one corporate Plaintiff. (ECF No. 28; hereinafter, “Amended Complaint” or “Am. Compl.”) Each new individual Plaintiff is currently present in the United States. See Am. Compl. at ¶¶ 68–111.) Three of the five new individual Plaintiffs are LPRs; the remaining two are in the United States in nonimmigrant status. See id. The corporate Plaintiff, Oxfam America, Inc. (“Oxfam”), alleges that it regularly brings individuals from five of the seven countries of particular concern to the United
3

Case 1:17-cv-10154-NMG Document 50 Filed 02/02/17 Page 4 of 8
States to “obtain information from overseas colleagues” and “to speak with American governmental officials”; the Amended Complaint does not explain why those individuals cannot participate in meetings by telephone or videoconferencing. (See Am. Compl. at ¶¶ 112–21.)
On Wednesday, February 1, 2017, White House counsel issued guidance regarding the Order, clarifying that Section 3(c), which temporarily suspended the entry of immigrants and nonimmigrants from the countries of particular concern, did not apply to LPRs. Specifically, the White House, in its “Memorandum to the Acting Secretary of State, the Acting Attorney General, and the Secretary of Homeland Security” (February 1, 2017), stated: “I understand that there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States. Accordingly, to remove any confusion, I now clarify that Sections 3(c) and 3(e) do not apply to such individuals. Please immediately convey this interpretive guidance to all individuals responsible for the administration and implementation of the Executive Order.” (hereinafter, “Defendants’ Exhibit 1.”)
LEGAL STANDARDS The standard for issuance of a temporary restraining order is the same as that for issuance of a preliminary injunction. See, e.g., Kilmowicz v. Deutsche Bank Nat’l Trust Co., — F. Supp. 3d —, 2016 WL 3541540, at *1 (D. Mass. June 23, 2016). In evaluating either, courts consider: (1) the likelihood of 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. 178 Lowell St. Operating Co. v. Nichols, 152 F. Supp. 3d 47, 53 (D. Mass. 2016) (Gorton, J.) (citing Jean v. Mass. State Police, 492 F.3d 24, 26–27 (1st Cir. 2007)). The moving party bears the burden of proof for each of these four factors. Finally, preliminary injunctive relief is an extraordinary remedy never awarded as of right,
4

Case 1:17-cv-10154-NMG Document 50 Filed 02/02/17 Page 5 of 8
Winter v. Natural Resources Defense Council, 555 U.S. 7, 20 (2008), and the party seeking such relief bears the burden of establishing its entitlement to an injunction. Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003); see also Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (“‘[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.’”). A temporary restraining order expires unless the Court finds good cause to extend it, for a period not to exceed 14 days. Fed. R. Civ. P. 65(b)(2). Here, there has been no showing that the grounds for issuance of the Temporary Restraining Order continue to exist.
ARGUMENT Plaintiffs cannot show good cause to extend the TRO. This is because Plaintiffs have not demonstrated the potential for irreparable harm, at least not pending briefing on a preliminary injunction. This Court has previously explained that “[i]rreparable harm is ‘a substantial injury that is not accurately measurable or adequately compensable by money damages.’” Hearst Stations, Inc. v. Aereo, Inc., 977 F. Supp. 2d 32, 40 (D. Mass. 2013) (Gorton, J.) (quoting RossSimons of Warwick v. Baccarat, Inc., 102 F.3d 12, 19 (1st Cir. 1996)). The First Circuit has stated that Plaintiffs’ allegations of irreparable harm must not be an “overly speculative forecast of anticipated harm.” Baccarat, 102 F.3d at 19. Even if the circumstances surrounding Petitioner-Plaintiffs’ entry into the United States on January 28, 2017 was, at that time, an injury sufficient to meet the First Circuit’s standard for irreparable harm, that is no longer the case. In this case, the individual Plaintiffs are all within the United States. Plaintiffs argue that they will be irreparably harmed by the Order because their travel plans outside of the country may now be impeded. The first problem with this argument is that most of the Plaintiffs are LPRs—whose claims are now entirely moot because they are not
5

Case 1:17-cv-10154-NMG Document 50 Filed 02/02/17 Page 6 of 8
covered by the Order. (See Defendants’ Exhibit 1.) This development effectively means that any decision by the Court regarding those LPR Plaintiffs would be “strictly advisory.” Cambridge Taxi Drivers & Owners Ass’n, Inc. v. City of Cambridge, 2017 WL 373491, at *3 (D. Mass. Jan. 25, 2017) (Gorton, J.); see also New Eng. Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 18 (1st Cir. 2002) (noting how it is “pointless” to pass on constitutional issues when a disputed policy was revised during litigation). Put simply, there is no risk that the Order will impede the LPR Plaintiffs’ entry into the United States in the future.
Furthermore, only two plaintiffs (Mses. Renani and Amirsardary) have any specific intentions of making such a trip outside of the United States. (See Am. Compl. at ¶¶ 52–111.) But neither have alleged concrete travel plans in the next month, which would allow sufficient time for the parties to brief, and the Court to consider, whether preliminary injunctive relief is warranted in this case.
Oxfam’s allegations similarly do not present the type of irreparable harm that warrants the extraordinary remedy of a temporary restraining order. It alleges that it is being irreparably harmed by the Order because “[m]any people who bear witness on Oxfam’s behalf about their experiences and conditions in their countries must come to the United States to do so because they cannot safely or legally speak publicly at home,” along with their First Amendment rights. (Am. Compl. at ¶¶ 119.) However, the Supreme Court has already addressed this sort of claim, concluding that there is very limited review of them. See Kleindienst, 408 U.S. at 769–70. Moreover, Oxfam does not allege that any individual has an intention to come to the United States in the next month. 1
1 Defendants recognize that the Court today allowed the intervention of the Commonwealth of Massachusetts and the University of Massachusetts. (ECF No. 44.) The Intervenor-Plaintiffs’ proposed complaint similarly does not present specific allegations of the types of immediate concerns that would warrant continuation of the temporary restraining order (Proposed Compl., ECF No. 25-1, at ¶¶ 41–46.) Indeed, many of the Intervenor-Plaintiffs’ allegations address claimed
6

Case 1:17-cv-10154-NMG Document 50 Filed 02/02/17 Page 7 of 8
(Am. Compl. ¶¶ 117-118.) Even if there were such a person, there is no reason that the individuals Oxfam wishes to bring to the United States for speeches and meetings—or even briefings—cannot appear via videoconference or telephone. Although Oxfam may certainly prefer that certain individuals be physically present within the United States, modern technology such as the telephone, international mail, electronic mail, and video conferencing would all accomplish the ends that Oxfam now purportedly seek—especially when the claim most relevant to it is one regarding the freedom of speech. At the very least, that mitigates the harm sufficiently to resolve these issues on a preliminary injunction schedule, rather than tomorrow. As none of the Plaintiffs has alleged non-speculative harm in the immediate future, the reasons for issuance of the Temporary restraining order no longer exist, and the Court should allow it to expire.
CONCLUSION As there is no potential irreparable harm pending fuller consideration of whether preliminary injunctive relief is warranted, good cause does not exist to continue the Temporary Restraining Order for any period of time.
Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General AUGUST FLENTJE Special Counsel WILLIAM C. PEACHEY Director GISELA M. WESTWATER Assistant Director
restrictions of immigration benefits and concerns that are not at all addressed by the TRO. (See id. ¶¶ 37–40.)
7

Case 1:17-cv-10154-NMG Document 50 Filed 02/02/17 Page 8 of 8

Dated: February 2, 2017

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
Attorneys for Defendants

CERTIFICATE OF SERVICE I hereby certify that on February 2, 2017, I electronically filed the foregoing OPPOSITION TO CONTINUATION OF TEMPORARY RESTRAINING ORDER with the Clerk of the Court by using the CM/ECF system, which will provide electronic notice and an electronic link of this document to the attorneys of record.

DATED: February 2, 2017

By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division

8

Case 1:17-cv-10154-NMG Document 50-1 Filed 02/02/17 Page 1 of 2
EXHIBIT 1

Case 1:17-cv-10154-NMG Document 50-1 Filed 02/02/17 Page 2 of 2

THE WHITE HOUSE
WASHINGTON

February 1, 2017

MEMORANDUM TO THE ACTING SECRETARY OF STATE, THE ACTING ATTORNEY GENERAL, AND THE SECRETARY OF HOMELAND SECURITY

FROM:

Donald F. McGahn II – Counsel to the President

SUBJECT: Authoritative Guidance on Executive Order Entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017)
Section 3(c) of the Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017) suspends for 90 days the entry into the United States of certain aliens from countries referred to in section 217(a)(12) of the Immigration and Nationality Act (INA), 8 U.S.C. 1187(a)(12). Section 3(e) of the order directs the Secretary of Homeland Security, in consultation with the Secretary of State, to submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of certain foreign nationals from countries that do not provide information needed to adjudicate visas, admissions, or other benefits under the INA.

I understand that there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States. Accordingly, to remove any confusion, I now clarify that Sections 3(c) and 3(e) do not apply to such individuals. Please immediately convey this interpretive guidance to all individuals responsible for the administration and implementation of the Executive Order.

1

 
 Case 1:17-cv-10154-NMG Document 46 Filed 02/02/17 Page 1 of 1 Case 1:17-cv-10154-NMG Document 45 Filed 02/02/17 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ARGHAVAN LOUHGHALAM, et al. ,

)

)

Petitioners/Piai nti ffs ,

)

)

v.

)

)

DONALD TRUMP, President of the

)

United States, et al.,

)

)

Resp ondents / Defe ndants.

)

Case No. I: 17-cv- 10154

MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO CONTINUATION OF TEMPORARY RESTRAINING ORDER Respondents/Defendants ("Defendants" or "the Government"), by and through counsel, hereby move for an extension of time under Fed. R. Civ. P. 6(b) to file an opposition to the continuation of the Temporary Restraining Order entered on January 29, 2017 until 12:00 a.m. on February 3, 2017. Defendants state that good cause for such an extension exists: I. On January 29, 20 17, the Court issued a Temporary Restraining Order ("TRO"), which is set to expire on February 5, 20 17 (ECF No.6). 2. On February I, 2017, after an assented-to extens ion of time, Petitioners/Plaintiffs

("Piainti ffs") filed an amended complaint (ECF No. 28). 3. Also on February I, 2017, thi s Court directed Defendants, if they intend to oppose the
continuation ofthe TRO, to file a written response on or before 12:00 noon today,

February 2, 20 17 (ECF No. 36). 4. Defendants are diligently working on a thorough opposition to continuation of the
TRO, but request a brief extension of time, until 12:00 a.m. on February 3, 2017, to

fi le their opposition.

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 Case 1:17-cv-10154-NMG Document 46 Filed 02/02/17 Page 1 of 1 Case 1:17-cv-10154-NMG Document 45 Filed 02/02/17 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ARGHAVAN LOUHGHALAM, et al. ,

)

)

Petitioners/Piai nti ffs ,

)

)

v.

)

)

DONALD TRUMP, President of the

)

United States, et al.,

)

)

Resp ondents / Defe ndants.

)

Case No. I: 17-cv- 10154

MOTION FOR EXTENSION OF TIME TO FILE OPPOSITION TO CONTINUATION OF TEMPORARY RESTRAINING ORDER Respondents/Defendants ("Defendants" or "the Government"), by and through counsel, hereby move for an extension of time under Fed. R. Civ. P. 6(b) to file an opposition to the continuation of the Temporary Restraining Order entered on January 29, 2017 until 12:00 a.m. on February 3, 2017. Defendants state that good cause for such an extension exists: I. On January 29, 20 17, the Court issued a Temporary Restraining Order ("TRO"), which is set to expire on February 5, 20 17 (ECF No.6). 2. On February I, 2017, after an assented-to extens ion of time, Petitioners/Plaintiffs

("Piainti ffs") filed an amended complaint (ECF No. 28). 3. Also on February I, 2017, thi s Court directed Defendants, if they intend to oppose the
continuation ofthe TRO, to file a written response on or before 12:00 noon today,

February 2, 20 17 (ECF No. 36). 4. Defendants are diligently working on a thorough opposition to continuation of the
TRO, but request a brief extension of time, until 12:00 a.m. on February 3, 2017, to

fi le their opposition.

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~t( k p~· ~ ~ ~~ k~ . ~ ~;Ot:J f· ~ ·

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 ··-
Case 1:17-cv-10154-NMG Document 39 Filed 02/02/17 Page 1 of 2

UN ITED STATES DISTRICT COURT DISTRI CT OF MASSAC HUSETTS

ARGHAVAN LOU HGHALAM and MAZDAK PO URABDOLLA H TOOTKABONI,
Petiti oners
V.
DONA LD J . TRUM P, PRESIDENT OF TI-lE UN ITED STATES , ET AL. ,
Respondents.

) ) ) )
) CIVIL ACTION ) NO. 17-101 54-N MG
) ) )
)

PTEORFMMEIODTT.TRIIO.NCNGIOVR.FEPBM. O5O.S2TT(cEO) AONCRGCTLEOOSBSPEETROMMEEIDLTIEATCHPTEARROPTUNNBICELRICCSO,TULORLCPTRFFIIONLRTINAAGNNSDOP/RUODRRSECUROAPNYT UNSEALED COURT RECORDS
Boston Globe Media Partners LLC, publisher of The Boston Globe Newspaper (the "Globe") respectfully moves for an order ( I) allowi ng the public to remotely access on Pacer unsealed electroni c court fi li ngs in this case pursuant to Fed. R. Civ. P. 5.2(c); or, in the alternative, (2) permitt ing the public to print and/or copy unsealed case fi le records made
ava ilab le in the courthouse. As grounds for its motion, the Globe relies on its memorandum of law and the
Declaration of Milton Valencia, fi led herewith.

063/ 201268715.1

 
 Case 1:17-cv-10154-NMG Document 70 Filed 03/09/17 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ARGHAVAN LOUHGHALAM and MAZDAK POURABDOLLAH TOOTKABONI
Plaintiff-Petitioners,
FATEMEH YAGHOUBI MOGHADAM, BABAK YAGHOUBI MOGHADAM, ALI SANIE, ZAHRASADAT MIRRAZI RENANI, LEILY AMIRSARDARY, and OXFAM AMERICA, INC.
Plaintiffs,
and
COMMONWEALTH OF MASSACHUSETTS and UNIVERSITY OF MASSACHUSETTS,
Plaintiff-Intervenors,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WILLIAM MOHALLEY, Boston Field Director, CBP,
Defendants.

No.17-cv-10154-NMG

NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE Pursuant to Fed. R. Civ. P. 41(a), the Commonwealth of Massachusetts and the University of Massachusetts hereby dismiss their above-captioned action without prejudice.

Case 1:17-cv-10154-NMG Document 70 Filed 03/09/17 Page 2 of 3

March 9, 2017

COMMONWEALTH OF MASSACHUSETTS and UNIVERSITY OF MASSACHUSETTS
By their attorneys,
ATTORNEY GENERAL MAURA HEALEY

/s/ Elizabeth N. Dewar

x

Elizabeth N. Dewar, BBO# 680722

Genevieve C. Nadeau, BBO# 677566

Jonathan B. Miller, BBO# 663012

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108

617-963-2204 (Dewar)

617-963-2121 (Nadeau)

617-963-2073 (Miller)

Bessie.Dewar@state.ma.us

Genevieve.Nadeau@state.ma.us

Jonathan.Miller@state.ma.us

2

Case 1:17-cv-10154-NMG Document 70 Filed 03/09/17 Page 3 of 3

CERTIFICATE OF SERVICE I, Elizabeth N. Dewar, hereby certify that a true copy of the above document, filed through the CM/ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing and paper copies will be sent to those indicated as non-registered participants on this date.

Dated: March 9, 2017

/s/ Elizabeth N. Dewar

x

Elizabeth N. Dewar

3

 
 Case 1:17-cv-10154-NMG Document 71 Filed 03/20/17 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MAZDAK POURABDOLLAH TOOTKABONI and ARGHAVAN LOUHGHALAM,
Plaintiff-Petitioners,

FATEMEH YAGHOUBI MOGHADAM, BABAK YAGHOUBI MOGHADAM, ALI SANIE, ZAHRASADAT MIRRAZI RENANI, LEILY AMIRSARDARY, and OXFAM AMERICA, INC.
Plaintiffs,

and

No.17-cv-10154-NMG

COMMONWEALTH OF MASSACHUSETTS and UNIVERSITY OF MASSACHUSETTS,
Plaintiff-Intervenors,

v.

DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. McALEENAN, Acting Commissioner of CBP; and WILLIAM MOHALLEY, Boston Field Director, CBP,
Defendants.

NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE
Individual plaintiffs1 and Oxfam-America, Inc. (collectively, “plaintiffs”) brought this case to challenge a specific Executive Order. In the wake of this litigation, President Donald Trump rescinded the challenged Executive Order. Plaintiffs therefore dismiss this case without prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i).

Case 1:17-cv-10154-NMG Document 71 Filed 03/20/17 Page 2 of 4
On January 27, 2017, President Trump issued Executive Order 13769 “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO 13769”). This case was filed the next day. On January 29, 2017, the United States District Court for the District of Massachusetts issued an emergency temporary restraining order (“TRO”). The Court found that “petitioners and others similarly situated . . . are likely to suffer irreparable harm” due to EO 13769. Louhghalam et al. v. Trump et al., No. 17-cv-10154 (D. Mass. Jan. 29, 2017). Plaintiffs filed an amended complaint on February 1, 2017. Defendants have not filed an answer or motion for summary judgment. On February 3, 2017, plaintiffs moved to extend the TRO, which this Court denied.
Before the time to appeal this decision expired, President Trump issued a new Executive Order to revoke and replace EO 13769. Plaintiffs do not concede that this new Executive Order is lawful. Plaintiff-Intervenors Commonwealth of Massachusetts and University of Massachusetts filed a Notice of Voluntary Dismissal Without Prejudice on March 9, 2017. Plaintiffs now do the same.
1 Plaintiff-petitioners Mazdak Pourabdollah Tootkaboni, and Arghavan Louhghalam, and Plaintiffs Fatemeh Yaghoubi Moghadam, Babak Yaghoubi Moghadam, Ali Sanie, Zahrasadat Mirrazi Renani, and Leily Amirsardary and are collectively the “individual plaintiffs.”
2

Case 1:17-cv-10154-NMG Document 71 Filed 03/20/17 Page 3 of 4

Respectfully submitted,

/s/ Susan Church Susan Church (BBO #639306) Derege Demissie (BBO #637544) Heather Yountz (BBO #669770) DEMISSIE & CHURCH 929 Mass. Ave., Suite 1 Cambridge, MA 02139 (617) 354-3944

/s/ Kerry E. Doyle Kerry E. Doyle (BBO #565648) GRAVES & DOYLE 100 State Street, 9th Floor Boston, MA 02109 (617) 216-1248

/s/ Michael S. Gardener Michael S. Gardener (BBO #185040) Elizabeth B. Burnett (BBO #066120) Peter A. Biagetti (BBO #042310) Susan M. Finegan (BBO #559156) Andrew N. Nathanson (BBO #548684) Susan J. Cohen (BBO #546482) MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. One Financial Center Boston MA 02111 (617-542-6000) smfinegan@mintz.com

/s/ Matthew R. Segal Matthew R. Segal (BBO #654489) Sarah Wunsch (BBO #548767) Jessie J. Rossman (BBO #670685) Laura Rotolo (BBO #665247) Adriana Lafaille (BBO #680210) ACLU FOUNDATION OF MASSACHUSETTS 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org

ATTORNEYS FOR PLAINTIFFS

3

Case 1:17-cv-10154-NMG Document 71 Filed 03/20/17 Page 4 of 4

CERTIFICATE OF SERVICE

I, Michael S. Gardener, hereby certify that the foregoing document will be filed through the ECF system on March 20, 2017, which will cause counsel for all parties to be electronically served.

67897609v.1

Respectfully submitted, /s/ Michael S. Gardener Michael S. Gardener

4

 
 Case: 1:17-cv-10154 As of: 05/28/2019 01:11 PM EDT 1 of 17
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:17−cv−10154−NMG

CLOSED

Louhghalam et al v. Trump, et al Assigned to: Judge Nathaniel M. Gorton Cause: 28:2241 Petition for Writ of Habeas Corpus (federa
Intervenor Plaintiff

Date Filed: 01/28/2017 Date Terminated: 03/20/2017 Jury Demand: None Nature of Suit: 463 Habeas Corpus − Alien Detainee Jurisdiction: U.S. Government Defendant

Commonwealth of Massachusetts TERMINATED: 03/09/2017

represented by Elizabeth N. Dewar Office of the State Solicitor Attorney General's Office One Ashburton Place Boston, MA 02133 617−963−2204 Email: bessie.dewar@state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Genevieve C. Nadeau Office of the Attorney General One Ashburton Place Boston, MA 02108 617−963−2121 Fax: 617−727−5762 Email: genevieve.nadeau@state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan B. Miller Office of the Attorney General (MA) Suite 301 10 Mechanic Street Worcester, MA 01608 617−963−2073 Fax: 617−727−5762 Email: jonathan.miller@state.ma.us ATTORNEY TO BE NOTICED

Intervenor Plaintiff
University of Massachusetts TERMINATED: 03/09/2017

represented by Elizabeth N. Dewar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Genevieve C. Nadeau (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan B. Miller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Arghavan Louhghalam

represented by Adriana Lafaille American Civil Liberties Union 211 Congress Street

Case: 1:17-cv-10154 As of: 05/28/2019 01:11 PM EDT 2 of 17
Boston, MA 02110 617−482−3470 Email: alafaille@aclum.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Derege B. Demissie Demissie & Church 929 Massachusetts Avenue Suite 01 Cambridge, MA 02139 617−354−3944 Fax: 617−354−0985 Email: dd@demissiechurch.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth B. Burnett Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC 42nd Floor One Financial Center Boston, MA 02111 617−542−6000 Fax: 617−542−2241 Email: ebburnett@mintz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Segal American Civil Liberties Union 211 Congress Street Boston, MA 02110 617−482−3170 Fax: 617−451−0009 Email: msegal@aclum.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael S. Gardener Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC 42nd Floor One Financial Center Boston, MA 02111 617−542−6000 Fax: 617−542−2241 Email: mgardener@mintz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan B. Church Demissie & Church 929 Massachusetts Avenue Suite 01 Cambridge, MA 02139 617−354−3944 Email: sbc@demissiechurch.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M. Finegan Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC One Financial Center

Case: 1:17-cv-10154 As of: 05/28/2019 01:11 PM EDT 3 of 17
43rd Floor Boston, MA 02111 617−542−6000 Fax: 617−542−2241 Email: sfinegan@mintz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Nathanson Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC One Financial Center Boston, MA 02111 617−542−6000 Fax: 617−542−2241 Email: anathanson@mintz.com ATTORNEY TO BE NOTICED
Heather Yountz Demissie & Church 929 Massachusetts Avenue Suite 01 Cambridge, MA 02139 617−354−3944 Email: hyountz@gmail.com ATTORNEY TO BE NOTICED
Jessie J. Rossman ACLU of Massachusetts 211 Congress Street 3rd Flr. Boston, MA 02110 617−482−3170 Email: jrossman@aclum.org ATTORNEY TO BE NOTICED
Kerry E. Doyle Graves & Doyle 9th Floor 100 State Street Boston, MA 02110 617−542−6400 Fax: 617−542−6411 Email: kdoyle@gravesanddoyle.com ATTORNEY TO BE NOTICED
Peter A. Biagetti Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC One Financial Center Boston, MA 02111 617−542−6000 Fax: 617−542−2241 Email: pbiagetti@mintz.com ATTORNEY TO BE NOTICED
Sarah R. Wunsch ACLU of Massachusetts 3rd Floor 211 Congress Street Boston, MA 02110 617−482−3170 Fax: 617−451−0009 Email: swunsch@aclum.org ATTORNEY TO BE NOTICED

Case: 1:17-cv-10154 As of: 05/28/2019 01:11 PM EDT 4 of 17

Plaintiff Mazdak Pourabdollah Tootkaboni

Susan J. Cohen Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC One Financial Center Boston, MA 02111 617−348−4468 Fax: 617−542−2241 Email: scohen@mintz.com ATTORNEY TO BE NOTICED
represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Derege B. Demissie (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth B. Burnett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael S. Gardener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah R. Wunsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan B. Church (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M. Finegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Nathanson (See above for address) ATTORNEY TO BE NOTICED
Heather Yountz (See above for address) ATTORNEY TO BE NOTICED
Jessie J. Rossman (See above for address) ATTORNEY TO BE NOTICED

Case: 1:17-cv-10154 As of: 05/28/2019 01:11 PM EDT 5 of 17

Kerry E. Doyle (See above for address) ATTORNEY TO BE NOTICED

Peter A. Biagetti (See above for address) ATTORNEY TO BE NOTICED

Susan J. Cohen (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Zahrasadat Mirrazi Renani

represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth B. Burnett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael S. Gardener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah R. Wunsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan M. Finegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Nathanson (See above for address) ATTORNEY TO BE NOTICED

Peter A. Biagetti (See above for address) ATTORNEY TO BE NOTICED

Susan J. Cohen (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Leily Amirsardary

represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth B. Burnett (See above for address) LEAD ATTORNEY

Case: 1:17-cv-10154 As of: 05/28/2019 01:11 PM EDT 6 of 17

ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael S. Gardener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah R. Wunsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan M. Finegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Nathanson (See above for address) ATTORNEY TO BE NOTICED

Peter A. Biagetti (See above for address) ATTORNEY TO BE NOTICED

Susan J. Cohen (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Oxfam America Inc

represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth B. Burnett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael S. Gardener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah R. Wunsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan M. Finegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-10154 As of: 05/28/2019 01:11 PM EDT 7 of 17

Plaintiff Ali Sanie
Plaintiff Fatemeh Yaghoubi Moghadam

Andrew Nathanson (See above for address) ATTORNEY TO BE NOTICED
Peter A. Biagetti (See above for address) ATTORNEY TO BE NOTICED
Susan J. Cohen (See above for address) ATTORNEY TO BE NOTICED
represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth B. Burnett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael S. Gardener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah R. Wunsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M. Finegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Nathanson (See above for address) ATTORNEY TO BE NOTICED
Peter A. Biagetti (See above for address) ATTORNEY TO BE NOTICED
Susan J. Cohen (See above for address) ATTORNEY TO BE NOTICED
represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth B. Burnett (See above for address)

Case: 1:17-cv-10154 As of: 05/28/2019 01:11 PM EDT 8 of 17

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael S. Gardener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah R. Wunsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan M. Finegan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Nathanson (See above for address) ATTORNEY TO BE NOTICED

Peter A. Biagetti (See above for address) ATTORNEY TO BE NOTICED

Susan J. Cohen (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Babak Yaghoubi Moghadam

represented by Adriana Lafaille (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth B. Burnett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael S. Gardener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sarah R. Wunsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan M. Finegan (See above for address) LEAD ATTORNEY

Case: 1:17-cv-10154 As of: 05/28/2019 01:11 PM EDT 9 of 17
ATTORNEY TO BE NOTICED
Andrew Nathanson (See above for address) ATTORNEY TO BE NOTICED
Peter A. Biagetti (See above for address) ATTORNEY TO BE NOTICED
Susan J. Cohen (See above for address) ATTORNEY TO BE NOTICED

V.
Respondent
Donald J. Trump President of the United States

represented by Katherine J. Shinners U.S. Department of Justice, Civil Division Office of Immigration Litigation − District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044 202−598−8259 Fax: 202−305−7000 Email: katherine.j.shinners@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rayford A. Farquhar United States Attorney's Office John Joseph Moakley Federal Courthouse 1 Courthouse Way Suite 9200 Boston, MA 02210 617−748−3100 Fax: 617−748−3971 Email: rayford.farquhar@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua S. Press U.S. Department of Justice, Civil Division 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
Michael P. Sady United States Attorney's Office John Joseph Moakley Federal Courthouse 1 Courthouse Way Suite 9200 Boston, MA 02210 617−748−3362 Fax: 617−748−3971 Email: michael.sady@usdoj.gov ATTORNEY TO BE NOTICED

Case: 1:17-cv-10154 As of: 05/28/2019 01:11 PM EDT 10 of 17

Respondent U.S. Customs and Border Protection
Respondent John Kelly Secretary of DHS
Respondent Kevin K. McAleenan Acting Commissioner of CBP
Respondent William Mohalley Boston Field Director, CBP
Respondent U.S. Department of Homeland Security

represented by Katherine J. Shinners (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua S. Press (See above for address) ATTORNEY TO BE NOTICED
Michael P. Sady (See above for address) ATTORNEY TO BE NOTICED
represented by Katherine J. Shinners (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua S. Press (See above for address) ATTORNEY TO BE NOTICED
Michael P. Sady (See above for address) ATTORNEY TO BE NOTICED
represented by Katherine J. Shinners (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua S. Press (See above for address) ATTORNEY TO BE NOTICED
Michael P. Sady (See above for address) ATTORNEY TO BE NOTICED
represented by Katherine J. Shinners (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua S. Press (See above for address) ATTORNEY TO BE NOTICED
Michael P. Sady (See above for address) ATTORNEY TO BE NOTICED
represented by Katherine J. Shinners (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-10154 As of: 05/28/2019 01:11 PM EDT 11 of 17

Amicus Amici Curiae Massachusetts Universities
Interested Party Boston Globe Media Partners, LLC

Joshua S. Press (See above for address) ATTORNEY TO BE NOTICED
Michael P. Sady (See above for address) ATTORNEY TO BE NOTICED
represented by Alan D. Rose , Sr. Rose, Chinitz & Rose One Beacon Street 23rd Floor Boston, MA 02108 617−536−0040 Fax: 617−536−4400 Email: adr@rose−law.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad D. Brian Munger, Tolles & Olson LLP 35th Floor 355 South Grand Avenue Los Angeles, CA 90071 PRO HAC VICE ATTORNEY TO BE NOTICED
Chad Golder Munger, Tolles & Olson LLP 1155 F Street, NW Washington, DC 20004 (202) 220−1100 Email: chad.golder@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED
Michael R. Doyen Munger, Tolles & Olson LLP 50th Floor 350 S. Grand Avenue Los Angeles, CA 90071 213−683−9100 Email: michael.doyen@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah G. Boyce Munger, Tolles & Olson LLP 1155 F Street, NW Washington, DC 20004 (202) 220−1104 Email: sarah.boyce@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan M. Albano Morgan Lewis & Bockius LLP One Federal Street Boston, MA 02110 617−951−8360 Fax: 617−951−8736

Case: 1:17-cv-10154 As of: 05/28/2019 01:11 PM EDT 12 of 17
Email: jonathan.albano@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emma D. Hall Morgan Lewis & Bockius LLP One Federal Street Boston, MA 02110 617−951−8194 Email: emma.hall@morganlewis.com ATTORNEY TO BE NOTICED

Date Filed 01/28/2017
01/28/2017 01/29/2017 01/29/2017 01/29/2017
01/29/2017 01/29/2017 01/30/2017 01/30/2017 01/30/2017 01/30/2017 01/30/2017

# Docket Text
1 PETITION for Writ of Habeas Corpus (2241), filed by ARGHAVAN LOUHGHALAM, MAZDAK POURABDOLLAH TOOTKABONI. Filing fee: $ 400, receipt number 0101−6472534 (Fee Status: Filing Fee paid) (Demissie, Derege) Modified docket text on 1/30/2017 (adminn, ). (Main Document 1 replaced on 1/31/2017 to reflect signatures of all counsel) (Caruso, Stephanie). (Entered: 01/28/2017)
2 EXHIBIT re 1 Complaint by ARGHAVAN LOUHGHALAM. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D)(Demissie, Derege) (Entered: 01/28/2017)
3 Proposed Document(s) submitted by ARGHAVAN LOUHGHALAM. Document received: Proposed Order. (Demissie, Derege) (Entered: 01/29/2017)
4 Proposed Document(s) submitted by MAZDAK POURABDOLLAH TOOTKABONI. Document received: Proposed Order. (Demissie, Derege) (Entered: 01/29/2017)
5 Electronic Clerk's Notes for proceedings held before Judge Allison D. Burroughs and Magistrate Judge Judith G. Dein: Hearing held on 1/28/17. Court hears argument regarding Temporary Restraining Order. Order Issued. (Court Reporter: Digital Recording.) To order a copy of this Digital Recording, please go to http://www.mad.uscourts.gov/attorneys/Magistrate−Audio.htm . For a transcript of this proceeding, contact Deborah Scalfani by email at deborah_scalfani@mad.uscourts.gov.(Attorneys present: Farquar,Church, Segal) (Rynne, Michelle) (Entered: 01/29/2017)
6 Judge Allison D. Burroughs and Magistrate Judge Judith G. Dein: ORDER entered. TEMPORARY RESTRAINING ORDER(Rynne, Michelle) (Entered: 01/29/2017)
7 NOTICE of Appearance by Matthew Segal on behalf of ARGHAVAN LOUHGHALAM, MAZDAK POURABDOLLAH TOOTKABONI (Segal, Matthew) (Entered: 01/29/2017)
8 NOTICE of Appearance by Michael P. Sady on behalf of John Kelly, Kevin K. McAleenan, William Mohalley, Donald J Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security (Sady, Michael) (Entered: 01/30/2017)
9 NOTICE of Appearance by Katherine J. Shinners on behalf of John Kelly, Kevin K. McAleenan, William Mohalley, Donald J Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security (Shinners, Katherine) (Entered: 01/30/2017)
10 ELECTRONIC NOTICE of Case Assignment. Judge Nathaniel M. Gorton assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Donald L. Cabell. (Abaid, Kimberly) (Entered: 01/30/2017)
ELECTRONIC NOTICE of Duplicate Filing Fee and Credit for Refund re 1 Complaint,, for $400.00 paid on 01/28/2017, receipt number 0101−6472533. (Adam, Lucien) (Entered: 01/30/2017)
11 NOTICE of Appearance by Susan B. Church on behalf of ARGHAVAN LOUHGHALAM (Church, Susan) (Entered: 01/30/2017)

Case: 1:17-cv-10154 As of: 05/28/2019 01:11 PM EDT 13 of 17

01/30/2017 01/30/2017 01/30/2017 01/30/2017 01/31/2017 01/31/2017
01/31/2017
01/31/2017

12 NOTICE of Appearance by Susan B. Church on behalf of MAZDAK POURABDOLLAH TOOTKABONI (Church, Susan) (Entered: 01/30/2017)
13 Assented to MOTION for Extension of Time to Feb. 1, 2017 to Amend 1 Complaint, by ARGHAVAN LOUHGHALAM, MAZDAK POURABDOLLAH TOOTKABONI.(Segal, Matthew) (Entered: 01/30/2017)
14 MOTION to Permit Electronic Access to Case Filings by ARGHAVAN LOUHGHALAM, MAZDAK POURABDOLLAH TOOTKABONI.(Segal, Matthew) (Entered: 01/30/2017)
15 NOTICE of Appearance by Kerry E. Doyle on behalf of ARGHAVAN LOUHGHALAM, MAZDAK POURABDOLLAH TOOTKABONI (Doyle, Kerry) (Entered: 01/30/2017)
16 Judge Nathaniel M. Gorton: ENDORSED ORDER entered granting 13 Motion for Extension of Time to File Amended Complaint. "Motion allowed." (Lima, Christine) (Entered: 01/31/2017)
17 Transcript of Hearing Regarding Temporary Restraining Order held on January 28−29, 2017 before Magistrate Judge Judith G. Dein and Judge Allison D. Burroughs. The Transcript may be purchased through Judy Bond at bond.court.reporting@gmail.com, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter: No Reporter Used. Digital Recording transcribed by Judy Bond. Redaction Request due 2/21/2017. Redacted Transcript Deadline set for 3/3/2017. Release of Transcript Restriction set for 5/1/2017. (Scalfani, Deborah) (Main Document 17 replaced on 2/1/2017) (Scalfani, Deborah). (Entered: 01/31/2017)
18 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 01/31/2017)
19 Judge Nathaniel M. Gorton: ENDORSED ORDER entered. re 6 Temporary Restraining Order.

01/31/2017 01/31/2017 01/31/2017 01/31/2017 01/31/2017
01/31/2017

"Pursuant to the Temporary Restraining Order ("TRO", Docket No. 6) entered by United States District Judge Allison D. Burroughs and United States Magistrate Judge Judith Gail Dein on January 29, 2017, a hearing on the status of the TRO will be held in Courtroom 4 on Friday, February 3, 2017, at 11:00 A.M.. So Ordered."(Caruso, Stephanie) Modified text on 1/31/2017 (adminn, ). (Entered: 01/31/2017)
20 Judge Nathaniel M. Gorton: ENDORSED ORDER entered denying 14 Motion to Permit Electronic Access to Case Filings. See attached Order. (Caruso, Stephanie) (Entered: 01/31/2017)
21 NOTICE of Appearance by Joshua S. Press on behalf of John Kelly, Kevin K. McAleenan, William Mohalley, Donald J. Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security (Press, Joshua) (Entered: 01/31/2017)
22 NOTICE of Appearance by Heather Yountz on behalf of Arghavan Louhghalam, Mazdak Pourabdollah Tootkaboni (Yountz, Heather) (Entered: 01/31/2017)
23 NOTICE by John Kelly, Kevin K. McAleenan, William Mohalley, Donald J. Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security of Supplemental Authority (Attachments: # 1 Supplemental Authority)(Shinners, Katherine) (Entered: 01/31/2017)
24 NOTICE of Appearance by Sarah R. Wunsch on behalf of on behalf of Leily Amirsardary, Arghavan Louhghalam, Babak Yaghoubi Moghadam, Fatemeh Yaghoubi Moghadam, Oxfam America Inc, Zahrasadat Mirrazi Renani, Ali Sanie, Mazdak Pourabdollah Tootkaboni (Wunsch, Sarah) Modified on 2/1/2017 (Caruso, Stephanie). (Entered: 01/31/2017)
25 MOTION to Intervene by Commonwealth of Massachusetts, UNIVERSITY OF MASSACHUSETTS. (Attachments: # 1 Exhibit Proposed Complaint)(Dewar,

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01/31/2017 01/31/2017 02/01/2017
02/01/2017 02/01/2017 02/01/2017 02/01/2017 02/01/2017 02/01/2017 02/01/2017 02/01/2017
02/02/2017 02/02/2017 02/02/2017

Elizabeth) (Entered: 01/31/2017)
26 MEMORANDUM in Support re 25 MOTION to Intervene filed by Commonwealth of Massachusetts, UNIVERSITY OF MASSACHUSETTS. (Dewar, Elizabeth) (Entered: 01/31/2017)
27 NOTICE of Appearance by Jessie J. Rossman on behalf of Arghavan Louhghalam, Mazdak Pourabdollah Tootkaboni (Rossman, Jessie) (Entered: 01/31/2017)
28 AMENDED COMPLAINT against U.S. Customs and Border Protection, Donald J. Trump, U.S. Department of Homeland Security, William Mohalley, John Kelly, Kevin K. McAleenan, Zahrasadat Mirrazi Renani, Leily Amirsardary, Oxfam America Inc, Ali Sanie, Fatemeh Yaghoubi Moghadam, Babak Yaghoubi Moghadam, filed by Arghavan Louhghalam, Mazdak Pourabdollah Tootkaboni, Zahrasadat Mirrazi Renani, Leily Amirsardary, Oxfam America Inc, Ali Sanie, Fatemeh Yaghoubi Moghadam, Babak Yaghoubi Moghadam.(Segal, Matthew) (Entered: 02/01/2017)
29 NOTICE of Appearance by Michael S. Gardener on behalf of Leily Amirsardary, Arghavan Louhghalam, Babak Yaghoubi Moghadam, Fatemeh Yaghoubi Moghadam, Oxfam America Inc, Zahrasadat Mirrazi Renani, Ali Sanie, Mazdak Pourabdollah Tootkaboni (Gardener, Michael) (Entered: 02/01/2017)
30 NOTICE of Appearance by Elizabeth B. Burnett on behalf of Leily Amirsardary, Arghavan Louhghalam, Babak Yaghoubi Moghadam, Fatemeh Yaghoubi Moghadam, Oxfam America Inc, Zahrasadat Mirrazi Renani, Ali Sanie, Mazdak Pourabdollah Tootkaboni (Burnett, Elizabeth) (Entered: 02/01/2017)
31 NOTICE of Appearance by Peter A. Biagetti on behalf of Leily Amirsardary, Arghavan Louhghalam, Babak Yaghoubi Moghadam, Fatemeh Yaghoubi Moghadam, Oxfam America Inc, Zahrasadat Mirrazi Renani, Ali Sanie, Mazdak Pourabdollah Tootkaboni (Biagetti, Peter) (Entered: 02/01/2017)
32 NOTICE of Appearance by Susan M. Finegan on behalf of Leily Amirsardary, Arghavan Louhghalam, Babak Yaghoubi Moghadam, Fatemeh Yaghoubi Moghadam, Oxfam America Inc, Zahrasadat Mirrazi Renani, Ali Sanie, Mazdak Pourabdollah Tootkaboni (Finegan, Susan) (Entered: 02/01/2017)
33 NOTICE of Appearance by Andrew Nathanson on behalf of Leily Amirsardary, Arghavan Louhghalam, Babak Yaghoubi Moghadam, Fatemeh Yaghoubi Moghadam, Oxfam America Inc, Zahrasadat Mirrazi Renani, Ali Sanie, Mazdak Pourabdollah Tootkaboni (Nathanson, Andrew) (Entered: 02/01/2017)
34 NOTICE of Appearance by Susan J. Cohen on behalf of Leily Amirsardary, Arghavan Louhghalam, Babak Yaghoubi Moghadam, Fatemeh Yaghoubi Moghadam, Oxfam America Inc, Zahrasadat Mirrazi Renani, Ali Sanie, Mazdak Pourabdollah Tootkaboni (Cohen, Susan) (Entered: 02/01/2017)
35 NOTICE of Appearance by Adriana Lafaille on behalf of Leily Amirsardary, Arghavan Louhghalam, Babak Yaghoubi Moghadam, Fatemeh Yaghoubi Moghadam, Oxfam America Inc, Zahrasadat Mirrazi Renani, Ali Sanie, Mazdak Pourabdollah Tootkaboni (Lafaille, Adriana) (Entered: 02/01/2017)
36 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered.
In light of the hearing scheduled for Friday, February 3, 2017, at 11:00 A.M., defendants are directed, if they intend to oppose the continuation of the temporary restraining order (Docket No. 6), to file a written response on or before 12:00 noon, Thursday, February 2, 2017.(Caruso, Stephanie) (Entered: 02/01/2017)
37 NOTICE of Appearance by Emma D. Hall on behalf of Boston Globe Media Partners, LLC (Hall, Emma) (Entered: 02/02/2017)
38 MOTION to Intervene by Boston Globe Media Partners, LLC.(Hall, Emma) (Entered: 02/02/2017)
39 MOTION ORDER PERMITTING REMOTE ACCESS TO ELECTRONIC COURT FILINGS PURSUANT TO FED. R. CIV. P. 5.2(c) OR TO PERMIT THE PUBLIC TO PRINT AND/OR COPY UNSEALED COURT RECORDS by Boston Globe

Case: 1:17-cv-10154 As of: 05/28/2019 01:11 PM EDT 15 of 17

02/02/2017
02/02/2017
02/02/2017 02/02/2017 02/02/2017 02/02/2017 02/02/2017
02/02/2017 02/02/2017 02/02/2017
02/02/2017
02/02/2017 02/02/2017
02/03/2017

Media Partners, LLC.(Hall, Emma) (Entered: 02/02/2017)
40 MEMORANDUM in Support re 39 MOTION ORDER PERMITTING REMOTE ACCESS TO ELECTRONIC COURT FILINGS PURSUANT TO FED. R. CIV. P. 5.2(c) OR TO PERMIT THE PUBLIC TO PRINT AND/OR COPY UNSEALED COURT RECORDS filed by Boston Globe Media Partners, LLC. (Hall, Emma) (Entered: 02/02/2017)
41 AFFIDAVIT of Milton J. Valencia in Support re 39 MOTION ORDER PERMITTING REMOTE ACCESS TO ELECTRONIC COURT FILINGS PURSUANT TO FED. R. CIV. P. 5.2(c) OR TO PERMIT THE PUBLIC TO PRINT AND/OR COPY UNSEALED COURT RECORDS filed by Boston Globe Media Partners, LLC. (Hall, Emma) (Entered: 02/02/2017)
42 NOTICE of Appearance by Jonathan M. Albano on behalf of Boston Globe Media Partners, LLC (Albano, Jonathan) (Entered: 02/02/2017)
43 NOTICE of Appearance by Genevieve C. Nadeau on behalf of Commonwealth of Massachusetts, University of Massachusetts (Nadeau, Genevieve). (Entered: 02/02/2017)
44 Judge Nathaniel M. Gorton: ENDORSED ORDER entered granting 25 Motion to Intervene (Lima, Christine) (Entered: 02/02/2017)
45 MOTION for Extension of Time to 12:00 a.m., 2/3/17 to File Response/Reply as to 6 Temporary Restraining Order by John Kelly, Kevin K. McAleenan, William Mohalley, Donald J. Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security.(Shinners, Katherine) (Entered: 02/02/2017)
46 Judge Nathaniel M. Gorton: ENDORSED ORDER entered granting in part and denying in part 45 Motion for Extension of Time to 12:00 a.m., 2/3/17 to File Response/Reply as to 6 Temporary Restraining Order
"Motion for extension of time allowed, in part, and denied, in part; the government shall have until 5:00 p.m. on Thurs., Feb. 2, 2017 to file its opposition, if any." (Caruso, Stephanie) (Entered: 02/02/2017)
47 Letter/request (non−motion) from Milton Valencia. (Caruso, Stephanie) (Entered: 02/02/2017)
48 Judge Nathaniel M. Gorton: ENDORSED ORDER entered granting 38 Motion to Intervene by Boston Globe Media Partners, LLC. "Motion allowed." (Caruso, Stephanie) (Entered: 02/02/2017)
49 Judge Nathaniel M. Gorton: ENDORSED ORDER entered granting 39 Motion for ORDER PERMITTING REMOTE ACCESS TO ELECTRONIC COURT FILINGS PURSUANT TO FED. R. CIV. P. 5.2(c) OR TO PERMIT THE PUBLIC TO PRINT AND/OR COPY UNSEALED COURT RECORDS by Boston Globe Media Partners, LLC. " Motion allowed." (Caruso, Stephanie) (Entered: 02/02/2017)
50 Opposition re 45 MOTION for Extension of Time to 12:00 a.m., 2/3/17 to File Response/Reply as to 6 Temporary Restraining Order filed by John Kelly, Kevin K. McAleenan, William Mohalley, Donald J. Trump, U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Exhibit 1)(Press, Joshua) (Entered: 02/02/2017)
51 NOTICE of Appearance by Jonathan B. Miller on behalf of Commonwealth of Massachusetts, University of Massachusetts (Miller, Jonathan). (Entered: 02/02/2017)
52 MEMORANDUM OF LAW by Commonwealth of Massachusetts, University of Massachusetts. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Affidavit, # 5 Affidavit, # 6 Affidavit, # 7 Affidavit, # 8 Affidavit, # 9 Affidavit)(Nadeau, Genevieve) (Attachment 9 replaced on 2/3/2017) (Lima, Christine). (Entered: 02/02/2017)
53 MOTION for Leave to File Response in Support of Continuation of Temporary Restraining Order and to Set Briefing Schedule for Expedited Preliminary Injunction by Leily Amirsardary, Arghavan Louhghalam, Babak Yaghoubi Moghadam, Fatemeh

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Yaghoubi Moghadam, Oxfam America Inc, Zahrasadat Mirrazi Renani, Ali Sanie, Mazdak Pourabdollah Tootkaboni. (Attachments: # 1 {Proposed} Response in Support of Continuation of Temporary Restraining Order and to Set Briefing Schedule for Expedited Preliminary Injunction, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(Gardener, Michael) (Entered: 02/03/2017)
54 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 53 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Caruso, Stephanie) (Entered: 02/03/2017)
55 Response by Leily Amirsardary, Arghavan Louhghalam, Babak Yaghoubi Moghadam, Fatemeh Yaghoubi Moghadam, Oxfam America Inc, Zahrasadat Mirrazi Renani, Ali Sanie, Mazdak Pourabdollah Tootkaboni in Support of Continuation of Temporary Restraining Order and to Set Briefing Schedule for Expedited Preliminary Injunction. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Gardener, Michael) (Entered: 02/03/2017)
56 NOTICE of Appearance by Alan D. Rose, Sr on behalf of Amici Curiae Massachusetts Universities (Rose, Alan) (Entered: 02/03/2017)
57 MOTION for Leave to Appear Pro Hac Vice for admission of Brad D. Brian Filing fee: $ 100, receipt number 0101−6482230 by Amici Curiae Massachusetts Universities. (Attachments: # 1 Affidavit Rule 83.5.3 Certification of Brad D. Brian, Esq. in Support of Unopposed Motion for Admission Pro Hac Vice)(Rose, Alan) (Entered: 02/03/2017)
58 MOTION for Leave to Appear Pro Hac Vice for admission of Chad Golder Filing fee: $ 100, receipt number 0101−6482238 by Amici Curiae Massachusetts Universities. (Attachments: # 1 Affidavit Rule 83.5.3 Certification of Chad Golder, Esq. in Support of Unopposed Motion for Admission Pro Hac Vice)(Rose, Alan) (Entered: 02/03/2017)
59 MOTION for Leave to Appear Pro Hac Vice for admission of Michael R. Doyen Filing fee: $ 100, receipt number 0101−6482254 by Amici Curiae Massachusetts Universities. (Attachments: # 1 Affidavit Rule 83.5.3 Certification of Michael R. Doyen, Esq. in Support of Unopposed Motion for Admission Pro Hac Vice)(Rose, Alan) (Entered: 02/03/2017)
60 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 57 Motion for Leave to Appear Pro Hac Vice Added Brad D. Brian. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Caruso, Stephanie) (Entered: 02/03/2017)
61 MOTION for Leave to Appear Pro Hac Vice for admission of Sarah G. Boyce Filing fee: $ 100, receipt number 0101−6482268 by Amici Curiae Massachusetts Universities. (Attachments: # 1 Affidavit Rule 83.5.3 Certification of Sarah G. Boyce, Esq. in Support of Unopposed Motion for Admission Pro Hac Vice)(Rose, Alan) (Entered: 02/03/2017)
62 MOTION for Leave to File Amicus Brief by Amici Curiae Massachusetts Universities. (Attachments: # 1 Proposed Amicus Brief on Behalf of Amici Curiae Massachusetts Universities)(Rose, Alan) (Entered: 02/03/2017)
63 Electronic Clerk's Notes for proceedings held before Judge Nathaniel M. Gorton: Status Conference held on 2/3/2017 as to whether the TRO currently in place should or should not be allowed to expire. Court hears arguments of counsel and takes the matter under advisement. Order to issue. (Court Reporter: Catherine Handel at hhcatherine2@yahoo.com.)(Attorneys present: Dewar, Nadeau, Miller, Segal, Church, Rossman, Shinners, Farquhar, Press) (Lima, Christine) (Entered: 02/03/2017)

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64 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 58 Motion for Leave to Appear Pro Hac Vice Added Chad Golder. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Caruso, Stephanie) (Entered: 02/03/2017)
65 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 59 Motion for Leave to Appear Pro Hac Vice Added Michael R. Doyen. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Caruso, Stephanie) (Entered: 02/03/2017)
66 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 61 Motion for Leave to Appear Pro Hac Vice Added Sarah G. Boyce. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Caruso, Stephanie) (Entered: 02/03/2017)
67 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 62 Motion for Leave to File Document ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Caruso, Stephanie) (Entered: 02/03/2017)
68 AMICUS BRIEF filed by Amici Curiae Massachusetts Universities in Support of Plaintiffs' Complaint for Declaratory and Injunctive Relief. (Rose, Alan) (Entered: 02/03/2017)
69 Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER. For the forgoing reasons, the Court declines to impose any injunctive relief and will not renew the temporary restraining order that was entered on January 29, 2017 (Docket No. 6).So ordered.(Lima, Christine) (Entered: 02/03/2017)
70 NOTICE of Voluntary Dismissal by Commonwealth of Massachusetts, University of Massachusetts (Dewar, Elizabeth) (Entered: 03/09/2017)
71 NOTICE of Voluntary Dismissal by Leily Amirsardary, Arghavan Louhghalam, Babak Yaghoubi Moghadam, Fatemeh Yaghoubi Moghadam, Oxfam America Inc, Zahrasadat Mirrazi Renani, Ali Sanie, Mazdak Pourabdollah Tootkaboni (Gardener, Michael) (Entered: 03/20/2017)
72 Transcript of Hearing on a Stay of the Temporary Restraining Order held on February 3. 2017, before Judge Nathaniel M. Gorton. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Catherine Handel at hhcatherine2@yahoo.com Redaction Request due 6/26/2017. Redacted Transcript Deadline set for 7/6/2017. Release of Transcript Restriction set for 9/5/2017. (Scalfani, Deborah) (Entered: 06/05/2017)
73 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 06/05/2017)