Case 1:17-cv-00353-TCB Document 1 Filed 01/30/17 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

)

TAWFEEQ,

)

)

Plaintiff.

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY (“DHS”); JOHN F. KELLY, )

Secretary of DHS; U.S. CUSTOMS AND )

BORDER PROTECTION (“CBP”);

)

KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; CAREY DAVIS, )

Port Director, CBP ; ANDY PRYOR,

)

Manager, CBP; SHANA WELLS,

)

Manager, CBP; U.S. DEPARTMENT )

OF STATE (“Department of State”);

)

THOMAS A. SHANNON, JR., Acting )

Secretary of State, Department of State. )

)

Defendants.

)

Case No.
COMPLAINT FOR DECLARATORY, MANDAMUS, AND INJUNCTIVE RELIEF

INTRODUCTION

1. Plaintiff Mohammed Abdullah Tawfeeq is an Iraqi national, an award-

winning Middle Eastern journalist, and now a Manager of the International Desk

for Cable News Network, Inc. (“CNN”). While now based permanently in the

United States, as part of his regular duties, Mr. Tawfeeq travels abroad to conduct

reporting on the ground from the Middle East.

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2. Since 2013, Mr. Tawfeeq has been a legal permanent resident of the United States and has entered the United States on numerous occasions without incident.
3. Mr. Tawfeeq has been a crucial part of CNN’s reporting regarding North Africa and the Middle East for over a decade. He has filed hundreds of reports from the field, has worked alongside prominent CNN journalists such as Christiane Amanpour and Anderson Cooper, and has covered numerous major world events such as the withdrawal of U.S. troops from Iraq, the fall of Muamar Quadafi in Libya, and the rise of ISIS.
4. On January 27, 2017, President Donald J. Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” See Ex. A (hereinafter the “Executive Order” or the “Order”).
5. That Executive Order purported to order the immediate suspension of every “entry into the United States” by alien nationals of one of several countries for a period of 90 days. The Order specifically applied to entries by both “immigrants and nonimmigrants” and to aliens from Iraq.
6. Whatever the validity of the Executive Order as applied to those aliens visiting temporarily, the application of the Order to immigrants like Mr. Tawfeeq—i.e. lawful permanent residents or green card holders returning after a
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brief trip abroad—violates the Immigration and Nationality Act (“INA”), the Administrative Procedure Act (“APA”), and the U.S. Constitution.
7. Lawful permanent residents (i.e. immigrants) like Mr. Tawfeeq are entitled under the INA to greater procedural protections than aliens visited temporarily (i.e. non-immigrants).
8. Congress has by statute laid out careful guidance concerning when and how lawful permanent residents such as Mr. Tawfeeq can be removed from the country, and the Federal Courts have on numerous occasions noted that such residents are entitled to robust constitutional protections.
9. On information and belief, Defendants have nevertheless used the Executive Order as the sole basis for refusing the entry of numerous immigrant aliens covered by the Executive Order and to subject returning residents like Mr. Tawfeeq to inappropriate exercises of discretion with regard to their right to return to the United States, and to lengthy delays and interrogations at ports of entry, including at Atlanta Hartsfield/Jackson International Airport.
10. The Executive Order has greatly increased the uncertainty involved in current and future international travel for returning lawful permanent residents like Mr. Tawfeeq. Defendants have sent conflicting signals regarding how and whether the Executive Order will be applied to permanent residents like Mr. Tawfeeq.
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11. On January 28, 2017, Defendant Department of State, through its spokepersons to the media and its various consulates abroad, issued statements that the Executive Order would apply to returning resident immigrants such as Mr. Tawfeeq, in violation of law.
12. On the morning of January 29, 2017, President Donald J. Trump’s Chief of Staff, Reince Priebus disagreed. He stated on national television that “As far as green card holders moving forward, [the Executive Order] doesn’t affect them.”
13. Defendant Department of Homeland Security (“DHS”), however, confirmed on January 29, 2017, in its “Response to Recent Litigation” that “it will continue to enforce all of President Trump’s Executive Orders.” This defiant response is surprising given the orders of at least two Federal District Court judges on January 28, 2017, that DHS cease engaging in certain of its removal actions pursuant to the Executive Order.
14. Then, late in the day on January 29, 2017, Defendant DHS Secretary John Kelly issued a press release suggesting that the Executive Order would not be applied to lawful permanent residents “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare.” That press release is not a formal statement of agency policy can be revoked at any time by
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the Secretary in his discretion, and it is unclear whether Defendants’ guidance to their employees matches that statement.
15. Further clarification of the law by the Federal Courts is clearly required as to Defendants. Such clarification is necessary to ensure that the Executive Order is not improperly applied to returning legal permanent residents like Mr. Tawfeeq.
16. On January 29, 2017, Defendants on information and belief used the Executive Order as the sole basis for detaining Mr. Tawfeeq and subjecting him to additional screening at Atlanta Hartsfield/Jackson International Airport, which delayed his entry into the United States. On information and belief, Defendants made a determination under the Executive Order concerning whether they would exercise their discretion to permit Mr. Tawfeeq to enter the United States.
17. Application of the Executive Order to Mr. Tawfeeq exceeds Defendants’ authority under the Immigration and Nationality Act because, under the Immigration and Nationality Act, Congress has not provided the immigration agencies with legal authority to prevent the return of permanent resident aliens like Mr. Tawfeeq into the United States.
18. Mr. Tawfeeq seeks a declaration of his rights under the Immigration and Nationality Act, a declaration that Defendant executive agencies are violating
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his rights under the Administrative Procedure Act, a declaration that Defendant executive agencies are violating his rights under the U.S. Constitution, an injunction against the application of the Executive Order to returning immigrants like Mr. Tawfeeq, a writ of mandamus instructing DHS to instruct its employees inspecting aliens at U.S. ports of entry to exclude returning resident immigrants such as Mr. Tawfeeq from the Order, and any other appropriate remedies to which the Court determines that he is entitled.
PARTIES 19. Plaintiff Mohammed Abdullah Tawfeeq was born in 1971 in Iraq and is an Iraqi citizen. Mr. Tawfeeq was resettled as refugee in the United States and, on June 20, 2013, Mr. Tawfeeq became a legal permanent resident in the United States. 20. Defendant U.S. Department of Homeland Security (“DHS”) is a federal agency bearing responsibility for the administration and enforcement of the nation’s immigration laws. 21. Defendant John F. Kelly is sued in his official capacity as Secretary of DHS, in which capacity he is charged with the just administration and enforcement of the immigration laws. 8 U.S.C. § 1103(a).
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22. Defendant U.S. Customs and Border Protection (“CBP”), a agency within DHS, is responsible for detecting and preventing the unlawful entry of persons and goods into the United States.
23. Defendant Kevin A. McAleenan is the Acting Commissioner of CBP and is sued in his official capacity.
24. On information and belief, Defendant Carey Davis is CBP’s Port Director for Atlanta and is sued in his official capacity. On information and belief, he is responsible for the processing of aliens arriving to the United States through Atlanta Hartsfield/Jackson International Airport.
25. On information and belief, Defendant Andy Pryor is a Manager of CBP’s Atlanta Port and is sued in his official capacity. On information and belief, he is responsible for the processing of aliens arriving to the United States through Atlanta Hartsfield/Jackson International Airport.
26. On information and belief, Defendant Shana Wells is a Manager of CBP’s Atlanta Port and is sued in her official capacity. On information and belief, she is responsible for the processing of aliens arriving to the United States through Atlanta Hartsfield/Jackson International Airport.
27. Defendant U.S. Department of State is a federal agency bearing responsibility for the administration and enforcement of the immigration laws.
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28. Defendant Thomas A. Shannon, Jr., is sued in his official capacity as Acting Secretary of State.
JURISDICTION AND VENUE 29. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. See Califano v. Sanders, 430 U.S. 99, 105 (1977) (except where statutes preclude review, 28 U.S.C. § 1331 “confer[s] jurisdiction on federal courts to review agency action”). See also 5 U.S.C. § 702; 28 U.S.C. § 1361; 28 U.S.C. §§ 2201–2202. 30. Defendants have a non-discretionary duty to inspect for return to the United States legal permanent residents eligible for treatment as “returning residents” and not otherwise barred. Because this duty is not discretionary, neither the immigration laws (see, e.g., 8 U.S.C. § 1252(a)(2)(B)(ii)) nor the Administrative Procedure Act (“APA”) withdraws jurisdiction. 31. The aid of the Court is invoked under 28 U.S.C. §§ 2201 and 2202, authorizing declaratory judgment. 32. Plaintiff seeks costs and attorneys fees pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504, and 28 U.S.C. § 2412(d), et seq. 33. Venue properly lies in this judicial district under 28 U.S.C. § 1391(e). Defendants are agencies and officers of agencies of the United States sued in their
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official capacities. As such, venue is proper because a substantial part of the events or omissions giving rise to these claims occurred in this District. Venue is also proper because Plaintiff resides in this District, and no real property is involved in this action.
EXHAUSTION OF REMEDIES 34. Plaintiff has no other adequate remedy available for the harm that he seeks to redress—the overly broad application by Defendants DHS and CBP of the Executive Order to returning resident immigrants such as Plaintiff.
FACTS 35. Plaintiff Mohammed Abdullah Tawfeeq was born in 1971 in Iraq and is a citizen of Iraq. 36. Mr. Tawfeeq was resettled as a refugee in the United States because of direct threats against him in Iraq because of his work as a reporter. 37. On June 20, 2013, the United States government made Mr. Tawfeeq a legal permanent resident. The green card in his possession expires on January 11, 2026. 38. Mr. Tawfeeq owns a condominium in Atlanta, Georgia. 39. Mr. Tawfeeq’s brother is an American citizen and lives in Kentucky.
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40. Mr. Tawfeeq is a journalist by trade. He has over 10 years of experience as an international news editor and producer specializing in the Middle East and North Africa (MENA) region.
41. Mr. Tawfeeq has covered several significant historical events within that region, including the U.S.-led invasion of Iraq and subsequent sectarian violence, the toppling of Muamar Quadafi in Libya, and the rise of ISIS.
42. Since 2004, Mr. Tawfeeq has worked for Cable News Network, Inc. (“CNN”). He worked for CNN first as a freelancer before being hired as a fulltime employee in 2006.
43. Mr. Tawfeeq has been placed on CNN special assignments along the Syria-Lebanon border and in Jordan, Saudi Arabia, and Libya.
44. From February 2004 to November 2011, Mr. Tawfeeq was a Field Producer for CNN. In that capacity, he contributed to hundreds of CNN stories in the field and to several specials with CNN reporters and anchors including Christiane Amanpour and Anderson Cooper.
45. From December 2011 to June 2013, Mr. Tawfeeq was CNN’s Baghdad Bureau Chief. In that capacity, he oversaw all managerial duties of CNN’s Baghdad office and produced countless stories concerning topics such as the U.S. troop withdrawal from Iraq.
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46. In July 2013, Mr. Tawfeeq was transferred to CNN’s U.S. offices in Atlanta. He was a news editor through February 2016, when he became an International Desk Producer.
47. While Mr. Tawfeeq primarily performs his duties from the United States, he still regularly travels to the Middle East to facilitate CNN’s reporting there.
48. On October 17, 2016, Mr. Tawfeeq left the United States bound for Iraq. After completing an assignment for CNN in northern Iraq, Mr. Tawfeeq spent time with family members in that country.
49. On January 29, 2017 at approximately 9:05am local time, Mr. Tawfeeq departed from Baghdad, Iraq en route to Atlanta, Georgia, with a layover in Istanbul, Turkey.
50. On January 29, 2017 at approximately 7:20pm Eastern Standard Time, Mr. Tawfeeq landed at Atlanta Hartsfield/Jackson International Airport.
51. When Mr. Tawfeeq presented himself for inspection at Atlanta Hartsfield/Jackson International Airport, the CBP officer in primary inspection notified him that he could be refused entry under the President’s recently-signed Executive Order.
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52. That CBP official scanned his passport and green card, asked him why he was in Iraq for such a long period of time, asked whether his trip to Iraq was for business or to visit family, and asked what he did for a living. He was then sent to secondary inspection
53. CBP officials then told Mr. Tawfeeq to wait because they needed to seek “an e-mail” concerning whether he would be allowed into the United States.
54. After approximately 30 minutes of waiting, CBP officials at the airport asked Mr. Tawfeeq whether he had ever been fingerprinted. Mr. Tawfeeq told officials that he had been repeatedly fingerprinted by the U.S. government when embedded with the U.S. military in Iraq.
55. CBP officials came back to Mr. Tawfeeq a few minutes later and indicated that he was free to enter the United States.
56. CBP officials gave Mr. Tawfeeq no explanation for their decision, no documents relating to his entry, nor did they stamp his passport.
The Executive Order 57. On January 27, 2017, President Donald J. Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” See Ex. A.
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58. The Executive Order purports to rest on “authority vested…as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et. seq, and section 301 of title 3, United States code.”
59. The Order requires Defendant Secretary of Homeland Security to conduct a review concerning information needed from “any country to adjudicate any visa” in consultation with Defendant Secretary of State and the U.S. Director of National Intelligence within 30 days after the Order’s signing.
60. The Order also imposes a 90-day ban on entry into the United States by aliens of certain nationalities:
I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
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Order at § 3(c) (emphasis added). Under the INA, the term “immigrants” refers to lawful permanent resident aliens, such as Mr. Tawfeeq.
61. Iraq is on the list of countries whose aliens are prohibited from “entry” into the United States for 90 days from the signing of the order. See INA § 217(a)(12)(A)(i)(I), 8 U.S.C. § 1187(a)(12)(A)(i)(I).
62. On its face, the Order applies to immigrants like Mr. Tawfeeq. 63. On information and belief, Defendant DHS originally determined that it could not legally apply the Executive Order to all legal permanent residents. 64. On information and belief, the staff of President Donald J. Trump overruled DHS’s legal determination, and DHS subsequently applied the Executive Order to legal permanent residents as well as to non-immigrants. 65. The spokeswoman for Defendant DHS told the Reuters news agency on January 28, 2017, that the Executive Order would be applied to bar lawful permanent residents from entering the United States. 66. The Department of State has also confirmed to the press that the Executive Order will be applied to bar lawful permanent residents from entering the United States. 67. The President’s Chief of Staff, Reince Priebus, appeared to contradict Defendant agencies on the applicability of the Executive Order to lawful
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permanent residents, stating on Meet the Press on January 29, 2017: “As far as green card holders moving forward, [the Executive Order] doesn’t affect them.”
68. DHS Secretary John Kelly issued a press release on January 29, 2017 that stated:
In applying the provisions of the president's executive order, I hereby deem the entry of lawful permanent residents to be in the national interest.
Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations. 69. On information and belief, Defendants have continued applying the Order to encumber or bar the entry of numerous legal permanent residents from the United States at various ports of entry in the United States, including Atlanta Hartsfield/Jackson International Airport. 70. On information and belief, Defendants have also spoken publicly about the Order to international airlines, which has resulted in the prevention of numerous legal permanent residents from boarding flights bound for the United States, including flights bound for Atlanta Hartsfield/Jackson International Airport.
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The Executive Order Cannot Legally Be Applied to Returning Legal Permanent Residents Like Plaintiff Whom the Statute Does Not Even Treat as Seeking Admission 71. Section 212(f) of the INA states: (f) Suspension of entry or imposition of restrictions by President Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline. 8 U.S.C. § 1182(f).
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72. Historically the President has exercised his authority under INA § 212(f) to ban discrete groups of aliens, such as those participating in human rights abuses in other countries, or those leaving from their home countries for the United States without a visa or other authorization to enter.
73. On information and belief, no President has ever suspended all aliens from an entire country from entering the United States under Section 212(f), much less from numerous countries as the current Executive Order purports to do.
74. A report summarizing previous exercises of the President’s authority under this section, prepared by the Congressional Research Service and dated January 23, 2017, identifies no instance of a prior exercise of this authority in so broad a manner. See Kate M. Manuel, Executive Authority to Exclude Aliens: In Brief, Congressional Research Service (Jan. 23, 2017), available at https://fas.org/sgp/crs/homesec/R44743.pdf.
75. INA § 212(f) has been a part of the INA since its enactment in 1952. 76. In 1996—long after the addition of INA § 212(f), Congress made several overhauls to the INA. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104-208, Div. C (“IIRAIRA”).
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77. Among those overhauls in IIRAIRA, Congress eliminated the concept of “entry” and provided in its place a new definition for “admission” and “admitted” at 8 U.S.C. § 1101(a)(13).
78. That provision draws a distinction between “applicants for admission”—such as all nonimmigrants and some immigrants—and returning permanent resident alien aliens, like Mr. Tawfeeq, who are not deemed to be seeking admission. See 8 U.S.C. § 1101(a)(13)(C).
79. Specifically, a legal permanent resident returning from abroad is not an applicant for “admission” unless that resident:
(i) has abandoned or relinquished that status (ii) has been absent from the United States for a continuous period
in excess of 180 days, (iii) has engaged in illegal activity after having departed the United
States, (iv) has departed from the United States while under legal process
seeking removal of the alien from the United States, including removal proceedings under this chapter and extradition proceedings,
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(v) has committed an offense identified in section 1182(a)(2) of this title, unless since such offense the alien has been granted relief under section 1182(h) or 1229b(a) of this title, or
(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.
8 U.S.C. § 1101(a)(13)(C)(i-vi). 80. The Federal Courts have since equated the pre-1996 concept of
“entry,” over which INA § 212(f) provides authority to the President, with current law’s concept of “admission,” which does not apply to returning permanent immigrants such as Mr. Tawfeeq. This line of cases does so in part by construing 8 U.S.C. § 1101(a)(13)(A)’s definition of “admission,” which incorporates the term “entry.”
81. Mr. Tawfeeq did not abandon or relinquish his legal permanent residence status before returning to the United States.
82. Mr. Tawfeeq was not absent from the United States for a continuous period in excess of 180 days.
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83. Mr. Tawfeeq did not engage in illegal activity after departing the United States.
84. Mr. Tawfeeq did not depart from the United States while under legal process seeking his removal.
85. Mr. Tawfeeq has not committed a criminal offense identified in 8 U.S.C. § 1182(a)(2).
86. Mr. Tawfeeq sought to return to the United States through Atlanta Hartsfield/Jackson International Airport on January 29, 2017. He did not then attempt and has never attempted to enter the United States at a time or place other than as designated by immigration officers and has never been admitted to the United States without inspection or authorization by an immigration officer.
87. Because he was a returning resident alien who met none of the disqualifying conditions described in 8 U.S.C. § 1101(a)(13)(C)(i-vi), Mr. Tawfeeq did not on January 29, 2017 seek “admission” to the United States of America.
88. Through the elimination of the concept of “entry” and the addition of 8 U.S.C. § 1101(a)(13)(C) in 1996, and with full knowledge of the terms of INA Section 212(f) as enacted in 1952, Congress has determined that the President’s ability to ban the entry of certain aliens under INA § 212(f) does not extend to returning legal permanent residents as described in 8 U.S.C. § 1101(a)(13)(C).
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89. The President’s INA § 212(f) authority therefore cannot be applied to returning residents who by law do not seek “admission” as set forth in 8 U.S.C. § 101(a)(13)(C), and therefore Defendants DHS, CBP, and Department of State, may not implement the Executive Order in a manner that includes Plaintiff.
90. Defendants, by their actions and public statement, however, have indicated their intention to disregard 8 U.S.C. 1101(a)(13)(C), and to apply INA § 212(f) in an overly broad manner, and thus the assistance of this Court is requested, through the relief requested herein.
91. On information and belief, CBP admitted Mr. Tawfeeq on January 29, 2017, based on an improper analysis of whether he was entitled to a case-by-case exception to the Executive Order.
92. On information and belief, CBP did not admit Mr. Tawfeeq on January 29, 2017, based on a proper analysis under INA § 101(a)(13)(C). Such an analysis would have required the conclusion that Mr. Tawfeeq was not an alien seeking “admission” into the United States.
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Application of the Executive Order to Returning Legal Permanent Residents Like Plaintiff Violate Their Due Process Rights
93. Application of the Executive Order to returning legal permanent residents like Plaintiff also violates their rights to statutory process under the INA, as well as their procedural due process rights under the U.S. Constitution.
94. Once lawful permanent residents present themselves for inspection at a port of entry, they cannot lawfully be removed from the United States without due process of law.
95. The INA provides carefully crafted statutory mechanisms whereby aliens can be removed. Some of those mechanisms with the least amount of process, such as “expedited removal” under INA § 235, cannot be applied at all to legal permanent residents. See 8 U.S.C. § 1225; 8 C.F.R. § 235.3(b)(5)(ii).
96. At a minimum, a legal permanent resident presenting himself at a port is entitled to the robust removal procedures under INA § 240. See 8 U.S.C. § 1229a. At such a removal hearing, Defendants would bear the burden of showing that the legal permanent resident should be removed and would be required to state the basis for that removal. Such removal would be subject to administrative appellate review, and to further review in the Federal Courts.
97. Courts have long recognized that legal permanent residents, including those returning from trips abroad, are entitled to Fifth Amendment due process
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protections. See, e.g., Kwong Hai Chew v. Colding, 344 U.S. 590, 601 (1953) (“While it may be that a resident alien's ultimate right to remain in the United States is subject to alteration by statute or authorized regulation because of a voyage undertaken by him to foreign ports, it does not follow that he is thereby deprived of his constitutional right to procedural due process. His status as a person within the meaning and protection of the Fifth Amendment cannot be capriciously taken from him.”).
98. Application of the Executive Order to lawful permanent immigrants provides them with almost no process—much less the process to which they are entitled by both the INA and the Constitution.
99. INA § 212(f) does not allow the President or Defendants to override the INA’s carefully crafted procedural protections, including the right for a legal permanent resident to challenge his removability in a proceeding under INA § 240.
100. Nevertheless, on information and belief, Defendants have continued removing or otherwise encumbering or barring the return of legal permanent residents like Mr. Tawfeeq in violation of these statutory protections and without the procedural hearing required by INA § 240 and the process mandated by the Constitution.
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101. Application of the Executive Order to Plaintiff would rob him of the procedural protections due him under the INA. In its place, the Executive Order substitutes only a “case-by-case” discretionary exception to the blanket ban with no mechanism for appeal. See Executive Order at § 3(g). Such a mechanism is constitutionally infirm and statutorily prohibited.
102. Nevertheless, on information and belief, Defendants improperly did admit Plaintiff pursuant to the Executive Order on January 29, 2017.
103. Despite any recent public guidance to the contrary, Defendants could without notice begin applying the Executive Order to bar or otherwise encumber the return of legal permanent residents, as they did on information and belief for at least the period of January 28, 2017 through January 30, 2017.
104. As such, the Executive Order could be applied to Plaintiff when he presents himself for inspection after a trip abroad. Plaintiff is regularly required to engage in international travel to perform his job duties.
CLAIMS FOR RELIEF FIRST CAUSE OF ACTION Deprivation of Rights Under the INA 105. Plaintiff repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
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106. Defendants have a non-discretionary legal duty under INA § 101(a)(13)(C) to permit the Plaintiff to return the United States without “admission.”
107. On information and belief, rather than inspecting Plaintiff and allowing him to proceed into the United States as a returning resident, Defendant CBP improperly admitted Plaintiff under the Executive Order.
108. By on information and belief applying the Executive Order to Plaintiff’s entry on January 29, 2017, Defendants deprived Plaintiff of his rights as a legal permanent resident, including his rights under INA § 101(a)(13)(C). 8 U.S.C. § 1101(a)(13)(C).
SECOND CAUSE OF ACTION Violations of the APA
109. Plaintiff repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
110. Defendants’ refusal to permit Plaintiff to return to the United States without admission was arbitrary and capricious and not otherwise in accordance with law. 5 U.S.C. § 706(2).
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111. Defendant’s decision to apply the Executive Order to Plaintiff as a legal permanent resident was arbitrary and capricious and not otherwise in accordance with law. 5 U.S.C. § 706(2).
112. The INA forbids discrimination in the 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).
113. Defendant CBP’s application of the Executive Order to Plaintiff, which occurred on information and belief the night of January 29, 2017, was not authorized by the INA. Further, Defendants actions with respect to Plaintiff were arbitrary, capricious, an abuse of discretion, and not otherwise in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; and without observance of procedure required by law, in violation of the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D).
THIRD CAUSE OF ACTION Declaratory Judgment
114. Plaintiff repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
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115. Plaintiff is entitled to a declaration of his rights, which shall have the force and effect of a final judgment, in accordance with 28 U.S.C. § 2201(a).
116. In particular, Plaintiff is entitled to a declaration that the Executive Order’s ban on entry does not extend to returning permanent resident aliens who satisfy the conditions set forth in INA § 101(a)(13)(C). 8 U.S.C. § 1101(a)(13)(C).
FOURTH CAUSE OF ACTION Mandamus
117. Plaintiff repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
118. Mandamus lies in the present action because Defendants owe Plaintiff a non-discretionary legal duty to permit his return to the United States without admission.
119. Defendants failure to permit Plaintiff’s return pursuant to INA § 101(a)(13)(C) constitutes a violation of a duty owed to him. See 8 U.S.C. § 1101(a)(13)(C).
120. Defendants owe Plaintiff a duty to obey applicable law, and to instruct its employees at border ports of entry, notwithstanding the language of the Executive Order, to exclude from the Order’s coverage those returning residents within INA § 101(a)(13)(C).
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121. Plaintiff has no other adequate remedy to address Defendants’ failure to permit his return to the United States.
122. The Court therefore has authority under the Mandamus Act, 28 U.S.C. § 1361, to compel the Government to permit Plaintiff’s return to the United States under the terms of INA § 101(a)(13)(C), rather than under the case-by-case authority granted to Defendants under the Executive Order.
FIFTH CAUSE OF ACTION Deprivation of Procedural Due Process 123. Plaintiff repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 124. Returning legal permanent residents like Plaintiff are entitled to statutory and regulatory procedural rights before they can be removed from the United States. 125. On information and belief, those statutory and procedural rights are being violated by Defendants’ continued removal of legal permanent residents from the United States without the process due them under, inter alia, INA § 240. See 8 U.S.C. § 1229a. 126. If Plaintiff leaves the United States, he too could be subject to a violation of those statutory rights.
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127. In addition, 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.
128. Application of the Executive Order to lawful permanent residents like Plaintiff deprives them of the process due them under the Fifth Amendment.
129. Defendants’ actions in threatening to exclude Plaintiff under the Executive Order and on information and belief in applying their discretion under the Executive Order to admit him on January 30, 2017, violated Plaintiff’s procedural due process rights guaranteed by the Fourteenth Amendment.
SIXTH CAUSE OF ACTION Equal Access to Justice Act 130. Plaintiff repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 131. Plaintiff is entitled to recoup his reasonable attorney’s fees and costs pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504 and 28 U.S.C. § 2412(d), et seq. 132. Plaintiff’s net worth does not and has not exceeded $2,000,000 at any relevant time.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Court grant the following relief: 1. Issue an injunction ordering Defendants not to detain or apply a
discretionary admissions assessment to any returning legal permanent resident including Plaintiff solely on the basis of the Executive Order; 2. Enter a judgment declaring unlawful Defendants’ refusal to permit Plaintiff’s return into the United States without admission pursuant to INA § 101(a)(13)(C); 3. Enter a judgment declaring Defendants’ conduct to be a violation of Plaintiff’s rights under the INA, the APA, and the U.S. Constitution; 4. Issue an order of mandamus to Defendants preventing them from applying the Executive Order to returning legal permanent residents like Plaintiff who meet the criteria in INA § 101(a)(13)(C); 5. Award Plaintiff’s reasonable costs and attorney’s fees; and 6. Grant any other and further relief that this Court may deem fit and proper.

DATED January 30, 2017

Respectfully submitted,
/s/ Theresia Moser Theresia M. Moser Georgia Bar No. 526514
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Moser Law Co. 112 Krog Street N.E., Suite 26 Atlanta, GA 30307 Phone: (404) 537-5339 Fax: (404) 537-5340 tmoser@moserlawco.com Carl W. Hampe (pro hac vice forthcoming) Daniel P. Pierce (pro hac vice forthcoming) Fragomen, Del Rey, Bernsen & Loewy LLP 1101 15th St. NW, Suite 700 Washington, DC 20005 Phone: (202) 223-5515 Fax: (202) 371-2898 champe@fragomen.com dpierce@fragomen.com Attorneys for Plaintiff
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EXHIBIT A

Case 1:17-cv-00353-TCB Document 1-1 Filed 01/30/17 Page 2 of 9

The White House Office of the Press Secretary For Immediate Release

January 27, 2017

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES

EXECUTIVE ORDER
- - - - - - -
Protecting the Nation from Foreign Terrorist Entry into the United States
By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:
Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.
Numerous foreign-born individuals have been convicted or implicated in terrorismrelated crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered
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through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.
In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.
Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.
Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security's determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.
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(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.
(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.
(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.
(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.
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(h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order.
Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant's likelihood of becoming a positively contributing member of society and the applicant's ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.
(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date of this order.
Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants
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who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.
(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.
(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.
(d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.
(e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest -- including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship -- and it would not pose a risk to the security or welfare of the United States.
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(f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order.
(g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.
Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda.
Sec. 7. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.
(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section. The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order. Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational.
Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222
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of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.
(b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly affected.
Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by the foreign country, to the extent practicable.
Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter: (i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later;
(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and engaged in terrorismrelated acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period, whichever is later; and
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(iii) information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later; and (iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.
(b) The Secretary of State shall, within one year of the date of this order, provide a report on the estimated long-term costs of the USRAP at the Federal, State, and local levels.
Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. DONALD J. TRUMP
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 Case 1:17-cv-00353-TCB Document 15 Filed 02/02/17 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH TAWFEEQ,

Plaintiff,

CIVIL ACTION FILE

v.

NUMBER 1:17-cv-353-TCB

U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants.

O R D E R

Defendants are hereby ordered to file their response(s), if any, to

Plaintiff’s motion to expedite proceedings [5] by February 8, 2017.

Plaintiff is directed to serve this Order on Defendants.

IT IS SO ORDERED this 2d day of January, 2017.

____________________________________ Timothy C. Batten, Sr. United States District Judge

 
 Case 1:17-cv-00353-TCB Document 5 Filed 02/01/17 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

)

TAWFEEQ,

)

)

Plaintiff.

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY (“DHS”); JOHN F. KELLY, )

Secretary of DHS; U.S. CUSTOMS AND )

BORDER PROTECTION (“CBP”);

)

KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; CAREY DAVIS, )

Port Director, CBP ; ANDY PRYOR,

)

Manager, CBP; SHANA WELLS,

)

Manager, CBP; U.S. DEPARTMENT )

OF STATE (“Department of State”);

)

THOMAS A. SHANNON, JR., Acting )

Secretary of State, Department of State. )

)

Defendants.

)

Case No. 1:17-cv-353
EMERGENCY MOTION TO EXPEDITE PROCEEDINGS

PLAINTIFF’S EMERGENCY MOTION TO EXPEDITE PROCEEDINGS By and through undersigned counsel, Plaintiff moves for expedited
consideration of this matter pursuant to 28 U.S.C. § 1657 and Local Rule 65.2, because the issues raised in the complaint rely on Plaintiff’s rights under the U.S. Constitution and federal immigration law that are of immediate importance and that could evade review if the regular briefing schedule is not significantly
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accelerated to reflect the expedited timetable set forth in the proposed order. For

the reasons outlined in the accompanying Memorandum of Law in support of the

Motion, Plaintiff requests that the Court order Defendants to respond to his

Complaint no later than 10 days after any order granting this motion, and that the

Court set a summary judgment briefing schedule that will end no later than 20 days

thereafter. Plaintiff further requests that Defendants be required to promptly

respond to this Motion.

DATED February 1, 2017

Respectfully submitted,

/s/ Theresia Moser Theresia M. Moser Georgia Bar No. 526514 Moser Law Co. 112 Krog Street N.E., Suite 26 Atlanta, GA 30307 Phone: (404) 537-5339 Fax: (404) 537-5340 tmoser@moserlawco.com
Carl W. Hampe (pro hac vice) Daniel P. Pierce (pro hac vice) Fragomen, Del Rey, Bernsen & Loewy LLP 1101 15th St. NW, Suite 700 Washington, DC 20005 Phone: (202) 223-5515 Fax: (202) 371-2898 champe@fragomen.com dpierce@fragomen.com
Attorneys for Plaintiff
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CERTIFICATE OF FONT AND POINT SELECTION Undersigned counsel hereby certifies, pursuant to L.R. 7.1(D), N.D. Ga., that the foregoing PLAINTIFF’S EMERGENCY MOTION TO EXPEDITE PROCEEDINGS AND SUPPORTING MEMORANDUM AND PROPOSED ORDERS were prepared in Times New Roman, 14 point font, which is one of the font and point selections approved in L.R. 5.1, N.D. Ga.
/s/ Theresia Moser Theresia M. Moser
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CERTIFICATE OF SERVICE
I hereby certify that I have this day mailed a true and correct copy of the
within and foregoing PLAINTIFF’S EMERGENCY MOTION TO EXPEDITE
PROCEEDINGS AND SUPPORTING MEMORANDUM AND PROPOSED
ORDERS by overnight Federal Express to each of the following:
The Honorable John F. Kelly, Secretary of Homeland Security U.S. Department of Homeland Security 245 Murray Lane, SW Mail Stop 0485 Washington, DC 20528-0485
Kevin K. McAleenan, Acting Commissioner U.S. Customs and Border Protection 1300 Pennsylvania Ave. NW Washington, DC 20229
Carey Davis, Port Director, Andy Pryor, Manager, Shanna Wells, Manager, U.S. Customs and Border Protection, Atlanta Hartsfield/Jackson Int’l Airport 157 Tradeport Drive Atlanta, GA 30354
Thomas A. Shannon, Acting Secretary of State U.S. Department of State 2201 C St. NW Washington, DC 20520
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Courtesy copies of the above documents were sent via electronic mail to the following individuals with whom Plaintiff has made initial contact on behalf of the government: Lori Beranek Assistant United States Attorney Northern District of Georgia U.S. Department of Justice Lori.Beranek@usdoj.gov Sheetul S. Wall Office of Immigration Litigation U.S. Department of Justice Sheetul.S.Wall2@usdoj.gov This 1st day of February 2017.
/s/ Theresia Moser Theresia M. Moser
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Case 1:17-cv-00353-TCB Document 5-1 Filed 02/01/17 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

)

TAWFEEQ,

)

)

Plaintiff.

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY (“DHS”); JOHN F. KELLY, )

Secretary of DHS; U.S. CUSTOMS AND )

BORDER PROTECTION (“CBP”);

)

KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; CAREY DAVIS, )

Port Director, CBP ; ANDY PRYOR,

)

Manager, CBP; SHANA WELLS,

)

Manager, CBP; U.S. DEPARTMENT )

OF STATE (“Department of State”);

)

THOMAS A. SHANNON, JR., Acting )

Secretary of State, Department of State. )

)

Defendants.

)

Case No. 1:17-cv-353
MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY MOTION TO EXPEDITE PROCEEDINGS

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF EMERGENCY MOTION TO EXPEDITE PROCEEDINGS By and through undersigned counsel, Plaintiff moves for expedited consideration of this matter pursuant to 28 U.S.C. § 1657 and Local Rule 65.2, because the issues raised in the complaint rely on Plaintiff’s rights under the U.S. Constitution and federal immigration law that are of immediate importance and
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that could evade review if the regular briefing schedule is not significantly accelerated to reflect the expedited timetable set forth in the proposed order.
Authority to Expedite 28 U.S.C. § 1657 gives this Court the power to “expedite the consideration of any action…for temporary or preliminary injunctive relief, or any other action if good cause therefor is shown.” “’[G]ood cause’ is shown if a right under the Constitution of the Untied States or a Federal Statute . . . would be maintained in a factual context that indicates that a request for expedited consideration has merit.” 28 U.S.C. § 1657(a). Local Rule 65.2 further permits this Court to waive motion time requirements and grant immediate hearings on any matter “requiring such expedited procedure.” L.R. 65.2.
Defendants’ Violation of Federal Law Defendants Department of Homeland Security (“DHS”) and Customs and Border Protection (“CBP”) continue to inspect returning permanent resident aliens in violation of Section 101(a)(13) of the Immigration & Nationality Act (“INA”) (8 U.S.C. § 1101(a)(13)) by impermissibly applying a discretionary review of whether DHS is in “receipt of significant derogatory information” with respect to such aliens. To the extent that Defendants contend that “derogatory information” is present with respect to any such alien, then his or her “entry” would likely be
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“barred” pursuant to the President’s executive order, in violation of the right to a removal hearing pursuant to INA §240 (8 U.S.C. §1229a). In this “barred entry” scenario, a returning permanent resident alien would furthermore be deprived of his or her constitutional due process rights. In short, INA Section 212(f) does not allow the President to trump the presumption in INA § 101(a)(13)(C) that returning permanent resident aliens have not legally exited the United States, nor to circumvent the hearing process available to such aliens whom the government believes do not qualify for that presumption. Defendants’ conduct, however, including toward Plaintiff, has violated this legal regime.
Expedited Consideration is Required Plaintiff submits that “good cause” exists for expedited consideration of this matter for the following reasons: First, Plaintiff’s position with CNN requires his ability to travel internationally to those countries targeted by the Executive Order. Compl. ¶ 47. His return to the United States on January 29, 2017, was encumbered by Defendant CBP’s application of the “discretionary entry” policy established by the Executive Order, in violation of his right to “return” to the United States without having to apply for “admission,” as set forth in INA § 101(a)(13)(C). Compl. ¶¶ 51-54. The
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primary CBP inspecting officer in fact told him that he could be denied entry pursuant to the Executive Order. Compl. ¶ 51.
Second, the Executive Order currently imposes a 90-day period of uncertainty for those in Plaintiffs’ position. See Executive Order at § 3(c). If normal procedural rules are applied in this matter, Plaintiff’s dispute could easily be mooted by the Government’s taking the full amount of time to respond permitted under the rules. The President would then be free to extend the current Executive Order, and Defendants would be free to mistreat Plaintiff during a subsequent international trip during the period the Order is in effect. The President could also issue a new order with similar effect that Defendants could use in a manner that would be capable of continuous repetition but could evade judicial review. Plaintiff’s need to travel internationally during this time period is almost certain, as set forth in the Declaration of Deborah Rayner, Senior Vice President of International Newsgathering, CNN. Exhibit A.
There is, however, a well-established doctrine ensuring that review is made available in such situations. See, e.g., Kingdomware Tech., Inc. v. United States, 136 S.Ct. 1969, 1976 (2016) (exception to mootness doctrine for controversy “capable of repetition, yet evading review”), citing Spencer v. Kemna, 523 U.S. 1, 17, (1998). There is thus “good cause” to expedite the briefing schedule of this
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case because it is capable of repetition, yet absent prompt consideration of the legal issues raised, it could effectively evade judicial review. The most efficient manner to adjudicate Plaintiff’s rights in the situation presented by this case is to allow this Court to render a decision within the current 90-day ban period. Absent such a briefing schedule, there is a significant chance that plaintiff’s injury will “evade review.”
Finally, this matter presents important statutory and constitutional issues. Judges around the country have acknowledged the fundamental rights raised by Defendants’ implementation of the Executive Order, issuing numerous orders pausing certain of its applications. See, e.g., Darweesh v. Trump, Case No. 1:17cv-480 (E.D.N.Y., January 28, 2017); Aziz v. Trump, Case No. 1:17-cv-116 (E.D.Va., January 28, 2017); Tootkaboni v. Trump, 1:17-cv-10154 (D. Mass., January 28, 2017); Abdiaziz v. Trump, 2:17-cv-00135 (W.D. Wash., January 30, 2017). Plaintiff seeks vindication of his due process and statutory rights under the INA that are provided to him as a lawful permanent resident. This is precisely the sort of constitutional or federal statutory controversy where the right under review is best maintained through expedited consideration of its merit. 28 U.S.C. § 1657(a).
Relief Requested – Expedited Briefing
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Plaintiff submits that the rights under review can best be maintained through

expeditious summary judgment briefing—without resort to more drastic temporary

restraining order or preliminary injunction procedures. Plaintiff thus requests that

the Court order the Government to respond to his Complaint no later than 10 days

after any order granting this motion, and that the Court set a summary judgment

briefing schedule that will end no later than 20 days thereafter, thus allowing the

Court to rule on this matter expeditiously.

Counsel to Plaintiff confirms that it has met and conferred with counsel to

Defendants, and that no agreement was reached on this motion. Plaintiff requests

that the Government be required to promptly respond to this Motion.

DATED February 1, 2017

Respectfully submitted,

/s/ Theresia Moser Theresia M. Moser Georgia Bar No. 526514 Moser Law Co. 112 Krog Street N.E., Suite 26 Atlanta, GA 30307 Phone: (404) 537-5339 Fax: (404) 537-5340 tmoser@moserlawco.com

Carl W. Hampe (pro hac vice) Daniel P. Pierce (pro hac vice) Fragomen, Del Rey, Bernsen & Loewy LLP 1101 15th St. NW, Suite 700 Washington, DC 20005 Phone: (202) 223-5515
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Fax: (202) 371-2898 champe@fragomen.com dpierce@fragomen.com Attorneys for Plaintiff
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Case 1:17-cv-00353-TCB Document 5-2 Filed 02/01/17 Page 1 of 2
EXHIBIT A

Case 1:17-cv-00353-TCB Document 5-2 Filed 02/01/17 Page 2 of 2
1

Case 1:17-cv-00353-TCB Document 5-3 Filed 02/01/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

)

TAWFEEQ,

)

)

Plaintiff.

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY (“DHS”); JOHN F. KELLY, )

Secretary of DHS; U.S. CUSTOMS AND )

BORDER PROTECTION (“CBP”);

)

KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; CAREY DAVIS, )

Port Director, CBP ; ANDY PRYOR,

)

Manager, CBP; SHANA WELLS,

)

Manager, CBP; U.S. DEPARTMENT )

OF STATE (“Department of State”);

)

THOMAS A. SHANNON, JR., Acting )

Secretary of State, Department of State. )

)

Defendants.

)

Case No. 1:17-cv-353 PROPOSED ORDER

ORDER REGARDING RESPONSE TO MOTION TO EXPEDITE

Pursuant to the Court’s authority under 28 U.S.C. § 1657 and Local Rule 65.2, the Court hereby orders

The Government’s Opposition to this motion will be due no later than: .

IT IS SO ORDERED.
Honorable Timothy C. Batten
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Case 1:17-cv-00353-TCB Document 5-3 Filed 02/01/17 Page 2 of 2
United States District Judge
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Case 1:17-cv-00353-TCB Document 5-4 Filed 02/01/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

)

TAWFEEQ,

)

)

Plaintiff.

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY (“DHS”); JOHN F. KELLY, )

Secretary of DHS; U.S. CUSTOMS AND )

BORDER PROTECTION (“CBP”);

)

KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; CAREY DAVIS, )

Port Director, CBP ; ANDY PRYOR,

)

Manager, CBP; SHANA WELLS,

)

Manager, CBP; U.S. DEPARTMENT )

OF STATE (“Department of State”);

)

THOMAS A. SHANNON, JR., Acting )

Secretary of State, Department of State. )

)

Defendants.

)

Case No. 1:17-cv-353 PROPOSED ORDER

ORDER SETTING EXPEDITED BRIEFING SCHEDULE

Pursuant to the Court’s authority under 28 U.S.C. § 1657 and Local Rule 65.2, the Court hereby orders

(1) The Government’s Answer or other responsive pleading will be due

no later than:

.

(2) Cross-motions for Summary Judgment will be due no later than:

.

(3) Responses to Cross-motions for Summary Judgment will be due no

later than:

.

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Case 1:17-cv-00353-TCB Document 5-4 Filed 02/01/17 Page 2 of 2
IT IS SO ORDERED. Honorable Timothy C. Batten United States District Judge
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 Case 1:17-cv-00353-TCB Document 24 Filed 02/21/17 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

)

TAWFEEQ,

)

)

Plaintiff.

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY ("DHS"); JOHN F. KELLY, )

Secretary of DHS; U.S. CUSTOMS AND )

BORDER PROTECTION ("CBP");

)

KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; CAREY DAVIS, )

Port Director, CBP ; ANDY PRYOR,

)

Manager, CBP; SHANA WELLS,

)

Manager, CBP; U.S. DEPARTMENT

)

OF STATE ("Department of State");

)

THOMAS A. SHANNON, JR., Acting

)

Secretary of State, Department of State.

)

)

Defendants.

)

Case No. 1:17-cv-353 - ORDER

Pursuant to the Court's authority under Federal Rule of Civil Procedure 6(b),
the Court hereby extends the time in which Plaintiff must respond to Defendants'
Motion to Dismiss, ECF No. 19, by no later than February 28, 2017.
!TI 0 OKQFR:El1 " /{;") � I N"- �
Hon rable Timothy C. Batten United States District Judge
"l)tA.te.� �·lJ•l7
-1-

 
 Case 1:17-cv-00353-TCB Document 25 Filed 02/27/17 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

)

TAWFEEQ,

)

)

Plaintiff.

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY (“DHS”); JOHN F. KELLY, )

Secretary of DHS; U.S. CUSTOMS AND )

BORDER PROTECTION (“CBP”);

)

KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; CAREY DAVIS, )

Port Director, CBP ; ANDY PRYOR,

)

Manager, CBP; SHANA WELLS,

)

Manager, CBP; U.S. DEPARTMENT )

OF STATE (“Department of State”);

)

THOMAS A. SHANNON, JR., Acting )

Secretary of State, Department of State. )

)

Defendants.

)

Case No. 1:17-cv-353
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Plaintiff Mohammed Abdullah Tawfeeq is a prominent journalist and a
lawful permanent resident (“LPR”) from Iraq. On January 27, 2017, President Donald J. Trump issued an Executive Order (“EO”) that purports to ban, inter alia, all aliens from Iraq—including LPRs—from entering the United States. See ECF No. 1-1. Defendants improperly applied the EO to Mr. Tawfeeq upon his return
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from Iraq on January 29, 2017, instead of permitting his return pursuant to his rights under the Immigration and Nationality Act (“INA”). Plaintiff brought the instant action for declaratory, mandamus, and other relief the following day.
Defendants now seek dismissal of Plaintiff’s case because they claim that subsequent events have mooted his claims. See ECF No. 19. Factual jurisdictional challenges that are inextricably linked to the merits of a case, however, are disfavored, and Defendants bear a heavy burden of persuasion because this is precisely such a challenge. See U.S. v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968); Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Defendants essentially argue that the case is now moot because they have voluntarily ceased their unlawful conduct. Defendants bear a “formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190 (2000).
Defendants attempt to carry their heavy burden by citing three documents: (1) a White House Counsel memorandum (hereinafter the “memorandum”) that interprets the EO to exclude LPRs, (2) a Department of Homeland Security (“DHS”) press release regarding the memorandum, and (3) a District Court opinion from Massachusetts that declined to extend a temporary restraining order (“TRO”)
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based on the memorandum. Those documents fall far, far short of carrying Defendants’ burden for numerous reasons.
First, the text of the EO itself has not changed and still purports to exclude all “immigrants” (i.e. LPRs) like Plaintiff. Second, the memorandum and press release to which Defendant point are of dubious legal import—they are not binding policy, cannot amend the EO’s clear language, and need not be followed by admitting officers at the border. Third, the cited documents only claim that the EO’s clear language somehow does not apply to LPRs—not that application of the language to Plaintiff would be illegal, as Plaintiff contends. Fourth, at least three other Federal Courts—the Western District of Washington, the Ninth Circuit, and the Eastern District of Virginia—have now rejected the Government’s nearly identical mootness arguments. The District of Massachusetts’ opinion does not appear to have fully considered these arguments, and in any case that ruling issued in a TRO context is inapposite here.
Moreover, even if Defendants could carry their heavy mootness burden here, the Court should still deny the Motion because several exceptions to mootness apply. Defendants have not established full voluntary cessation of their conduct, as the underlying EO remains in effect. The conduct here falls under the mootness exception for conduct capable of repetition yet evading review. And Defendants’
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conduct unlawfully imposes a “brooding presence” concerning Plaintiff’s legal rights, particularly given his professional need to travel.
Defendants could take steps designed to provide Plaintiff with the assurances he seeks by withdrawing the EO, clarifying that the EO cannot legally apply to him, presenting binding policy guidance to field officers, or agreeing that Plaintiff’s rights under INA § 101(a)(13)(C), trump the authority cited in the EO. Defendants have thus far refused to take any of these steps and have relied instead on convoluted, nonbinding reinterpretations of clear language.
Plaintiff thus remains in the same position as when he filed his Complaint— unable to travel outside of the United States with assurances that he will be permitted to return under applicable law. If Plaintiff travels abroad, Defendants could bar him from the country without any due process under the terms of the EO and notwithstanding any of the subsequent documents they now cite. Defendants could also apply a separate EO that similarly bars Plaintiff based on their litigation position that they possess such power. Defendants’ non-binding assurances that they will not apply the current EO to LPRs provides cold comfort in light of their recent positions and conduct. Plaintiff deserves an adjudication of his statutory and constitutional rights and the certainty that this Court can provide via the
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requested declaratory, mandamus, and injunctive relief. Plaintiff respectfully requests that the Court deny the Motion to Dismiss.
FACTUAL AND PROCEDURAL BACKGROUND Plaintiff is a prominent journalist for Cable News Network, Inc. (“CNN”) specializing in the regions of the Middle East and North Africa. Since 2013, Plaintiff has been stationed at CNN’s Atlanta offices, but he must regularly travel abroad as part of his job duties. ECF No. 1 at ¶¶ 40-47; ECF No. 5-2, at ¶ 5.1 Plaintiff is an LPR who resides in Atlanta. ECF No. 1, at ¶¶ 37-38. On January 27, 2017, President Donald J. Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” ECF No. 1-1. That EO, inter alia, “suspend[ed] entry into the United States, as immigrants and nonimmigrants” aliens from seven nationalities, including Iraq, for a period of 90 days. Id.; ECF No. 1, at ¶¶ 60-61. Subsequent to the EO’s issuance, Defendants issued various statements indicating that the EO would be applied to LPRs—i.e. immigrants—like Plaintiff. ECF No. 1, at ¶¶ 11-
1 Plaintiff assumes that the allegations from his Complaint cited herein will not be disputed by Defendants. If Defendants dispute these facts and thereby create contested facts concerning this motion, Plaintiff requests an evidentiary hearing on the motion. See Williamson v. Tucker, 645 F.2d 404, 414 (“[T]he district court must give the plaintiff an opportunity for discovery and for a hearing that is appropriate to the nature of the motion to dismiss.”).
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14, 63-70. On information and belief (and as has been widely reported in the press and other lawsuits around the country), Defendants actually did apply the EO to refuse entry or otherwise impede the travel of numerous LPRs. Id. at ¶ 9.
Defendants then applied the EO to Plaintiff upon his return to the United States from a trip to Iraq on the evening of January 29, 2017. Specifically, Customs and Border Protection (“CBP”) officials at Atlanta Hartsfield/Jackson International Airport informed Plaintiff that he could be denied entry under the EO and forced him to wait while CBP obtained an unspecified “e-mail” concerning whether he would be allowed into the United States. Id. at ¶¶ 48-56. The next day, Plaintiff filed the instant suit seeking declaratory, mandamus, and injunctive relief for the violation of his statutory and constitutional rights. Id. at ¶¶ 105-132.
On February 1, 2017—two days after Plaintiff filed this suit and after numerous similar suits had been filed around the country—White House Counsel Donald F. McGahn II issued a “Memorandum to the Acting Secretary of State, the Acting Attorney General, and the Secretary of Homeland Security” purporting to issue “Authoritative Guidance” regarding the EO. ECF No. 19-2. That memorandum stated:
I understand that there has been reasonable uncertainty about whether [Sections 3(c) and 3(e) of the Executive Order] 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
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immediately convey this interpretive guidance to all individuals responsible for the administration and implementation of the Executive Order. Id. Two days after the White House Counsel issued his memorandum, DHS issued a “Statement on Countries Currently Suspended from Travel to the United States” from its Office of the Press Secretary stating that the travel “pause does not apply to Lawful Permanent Residents.” ECF No. 19-4 at 1.
ARGUMENT I. Defendants—not Plaintiff—bear the mootness burden. In the Memorandum accompanying their Motion, Defendants assert the basic principle that “the party invoking federal jurisdiction bears the burden of proving its existence.” ECF No. 19-1 at 3-4. Defendants appear to suggest that the burden with respect to their Motion rests on Plaintiff. It does not. Defendants do not levy a “facial” mootness challenge in their Motion. Defendants do not contest that the Complaint alleges numerous bases for this Court’s jurisdiction. See ECF No. 1, at ¶¶ 29-32. Defendants also provide the Court with no reason to believe that Plaintiff’s case was moot when filed, as their Motion acknowledges that there might have been “a question as to the applicability of the [EO] to Plaintiff Mr. Tawfeeq on the day he filed the instant complaint.” ECF No. 19-1 at 6.
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Instead, Defendants rely on post-filing evidence from outside the complaint to levy a “factual challenge” to the Complaint. Id. at 4-5. Defendants—not Plaintiff—bear the burden on such a challenge. As the Eleventh Circuit has cautioned, “it is extremely difficult to dismiss a claim for lack of subject matter jurisdiction.” Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A., 104 F.3d 1256, 1260 (11th Cir. 1997). The test for mootness is a “stringent one,” and the party arguing in favor of mootness must “satisfy [a] heavy burden of persuasion.” U.S. v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968). Indeed, “[t]he formidable, heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir. 2007) (quotations omitted). “[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000).
II. The Government has not carried its stringent burden. Defendants primarily base their mootness arguments on two documents that post-date Plaintiff’s Complaint: (1) the White House Counsel memorandum and (2)
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the DHS press statement. ECF Nos. 19-2, 19-4. These documents cannot carry Defendant’s heavy burden of persuasion on mootness for several reasons.
A. Defendants fail to establish that the documents cited have any legal import or power to bind relevant authorities.
First, Defendants provide no basis on which this Court can assess the legal import of either the memorandum or the DHS press statement. The White House Counsel is not charged with the inspection and admission of aliens, is not a party to this suit, and cannot alone bind any of Defendants to his interpretation of the EO. As the Ninth Circuit recently stated regarding the Government’s nearly identical arguments in Washington v. Trump, No. 17-35105 (9th Cir. 2017):
The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President…, and that proposition seems unlikely. Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Ex. A at 21-22. Indeed, Defendants give this Court no basis on which to conclude that the White House Counsel memorandum bears legal significance at all. At least one court has cast doubt on the White House Counsel’s ability to bind the President to an interpretation of a memorandum published with the White House Counsel’s
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blessing. See New York Times Co. v. U.S. Dep’t of Justice, No. 12 Civ. 3215, 2013 WL 174222, at *8 (S.D.N.Y. Jan. 7, 2013) (fact that White House Counsel consented to Office of Legal Counsel’s publication of a memorandum “cannot be read as the President expressly adopting [that memorandum’s] reasoning”). The White House Counsel memorandum poses more questions than it answers. Does the White House Counsel purport to amend the EO or bind the President to his interpretation of the EO? Does the White House Counsel’s interpretation of the EO supersede other interpretations previously advanced by Defendants, and—if so—on what legal authority? Neither Defendants nor the White House Counsel’s statement offers any insight.
The DHS “statement” on which Defendants rely is similarly unavailing. Defendants characterize the document as a “policy statement,” ECF No. 19-1 at 2, but they do not explain why a press release binds any DHS agent to any “policy.” Defendants provide no evidence, for example, that adjudicators in the field—e.g. CBP officials who would inspect Plaintiff upon his return to Atlanta HartsfieldJackson Airport—are either aware of or would be bound to implement a DHS press release concerning the Executive Order. Cf. Broadgate Inc. v. U.S. Citizenship & Immigration Servs., 730 F. Supp. 2d 240, 245 (D.D.C. 2010) (finding “no
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evidence” that an internal memorandum “either binds USCIS adjudicators or requires a different outcome” than the underlying regulation).
Defendants further fail to even mention a separate DHS press release from DHS Secretary Kelly dated January 29, 2017 and that is still available on DHS’s website at the time of this filing. See Ex. B. That press release suggests that the EO does apply to LPRs but that LPR status will generally be a determinative factor in DHS’s “case-by-case determinations” under the EO. Are CBP agents to examine DHS’s dueling press releases and determine which of them correctly interprets the EO? Defendants again do not say. In short, Defendants provide no basis for this Court to conclude that the memorandum or press statement have any legal import whatsoever—much less that they combine to form the “absolutely clear” showing required for mootness. Friends of the Earth, 528 U.S. at 190.
B. The documents cited are part of an ever-shifting interpretation of the EO.
Second, the memorandum and press release are best viewed as Defendants’ latest musings regarding the EO’s application to LPRs. As alleged in Plaintiff’s complaint:
 On January 28, 2017, the acting DHS spokeswoman stated to Reuters that the Executive Order would bar green card holders. ECF No. 1 at ¶ 65.
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 The Department of State confirmed to the press that the Executive Order would be applied to lawful permanent residents. Id. at ¶ 66.
 On the morning of January 29, 2017, White House Chief of Staff Reince Priebus said on national television that the Executive Order would not “affect” green card holders “moving forward.” Id. at ¶ 67.
 Later in the day on January 29, 2017, DHS Secretary John Kelly issued a press release indicating that the Executive Order would in fact apply to green card holders but that “absent the receipt of significant derogatory information” lawful permanent resident status would be “a dispositive factor in [DHS’s] case-by-case determinations” under the Executive Order. Id. at ¶ 68. See Ex. B.
Thus, within just the six-day period from January 27 to February 1, the Government thus took at least three positions regarding the applicability of the EO to LPRs. As the Ninth Circuit held, “in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.” Ex. A at 22.2
Defendants must show that their conduct “cannot reasonably be expected to start up again.” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir. 2007) (quotations omitted). Defendants have made no showing that the 2 Defendants recently stated to the Ninth Circuit that a new EO is forthcoming, see ECF No. 23-2 at 4, but such an EO has not yet issued and its content is unclear today.
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White House Counsel’s interpretation of the EO will last any longer than the other interpretations they had previously adopted, much less the “formidable” showing required here. Id. Plaintiff’s ability to seek an adjudication of his rights does not rest on the Executive’s unsettled interpretation of language that it promulgated.
C. Defendants provide no reason for their interpretive changes, and thus no assurance that their interpretation is final.
Defendants ever-shifting interpretations of the EO are particularly perplexing in light of a fundamental underlying fact—the EO has facially applied to LPRs since its promulgation, and its language has never been changed. The EO purports to suspend the entry of both “immigrants and nonimmigrants.” ECF No. 1-1 at § 3(c) (“I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order[.]”). LPRs are “immigrants” under the INA. See 8 U.S.C. § 1101(a)(15).
The memorandum and statement on which Defendants here rely state simply that the relevant EO provisions “do not” apply to LPRs without any accompanying legal analysis. See ECF No. 19-2 (“Sections 3(c) and 3(e) do not apply to [LPRs].”); ECF No. 19-4 at 1 (“This pause does not apply to Lawful Permanent Residents[.]”). This careful phrasing provides no legal basis for Defendants’ decision to ignore the EO’s plain language, and no reason for the government’s apparent change of heart regarding that language. Cf. Motor Vehicle Mfrs. Ass’n of
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U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (“[A]n agency changing its course…is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.”). As such, the statements provide no assurances to Plaintiff that the interpretations will not change again at a moment’s notice or that a CBP officer would choose those non-binding interpretations over the EO’s clear language.
Indeed, the Government has argued before the Ninth Circuit that the President retains vast authority to engage in “the categorical, temporary suspension the President has adopted” in the EO. Ex. C at 4. The Government has also contended that restrictions on nationality-based discrimination against LPRs do not impede the EO. See id. at 4-5. Defendants thus appear to believe that they could bar Plaintiff—they are just choosing not to apply the EO’s plain language this time. Plaintiff’s rights hang by a thread made up of Defendants’ current assurances that they will not illegally ban him from the country without process—for the moment.
D. The documents on which Defendants rely do not address Plaintiff’s rights.
Finally, neither of the documents on which Defendants rely address the rights that Plaintiff asserts in his suit. A rote conclusion that the EO “does not” apply to LPRs does not show that Defendants believe that this EO or a subsequent one cannot so apply. Plaintiff seeks a declaration that an EO cannot breach the
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process due to returning LPRs under law, and his right to such a declaration is not affected by the Government’s temporary promise that the EO “does” not apply to him now. The documents simply do not bind the Government to what Plaintiff submits is the only legal interpretation of the INA—that the EO (and any subsequent EO based on the same authority) cannot be applied to him as a matter of law, not just as a matter of government whim. The documents do not, for instance, direct Defendants’ agents to permit the entry of returning permanent residents like Plaintiff pursuant to § 101(a)(13)(C) of the INA, 8 U.S.C. § 1101. Until Defendants are willing to clarify that they will inspect Plaintiff pursuant to that provision, Plaintiff still faces uncertainty regarding his return and whether Defendants intend to respect his full legal rights.
III. Several exceptions to mootness apply here. Even if the Court is inclined to find that Defendants have carried their steep burden on mootness, several mootness exception doctrines apply to Plaintiff’s case.
A. Even if Defendants have voluntarily ceased their conduct, the Court lacks a reasonable basis to conclude that the conduct will not recur.
First, Defendants’ arguments in their Motion fall within the mootness exception for voluntary cessation. “It long has been the rule that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear
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and determine the case, i.e., does not make the case moot.” Troiano v. Supervisor of Elections in Palm Beach County, Fla., 382 F.3d 1276, 1283 (11th Cir. 2004) (quoting Sec’y of Labor v. Burger King Corp., 955 F.2d 681, 684 (11th Cir. 1992) (internal quotation marks omitted)). Courts must consider three factors in such cases: “(1) whether the challenged conduct was isolated or intentional, as opposed to a continuing and deliberate practice; (2) whether the defendant’s cessation of the conduct was motivated by a genuine change of heart or timed to anticipate suit; and (3) whether, in ceasing the conduct, the defendant has acknowledged liability.” Thomas v. Branch Banking & Trust Co., 32 F. Supp. 3d 1266, 1268-69 (N.D. Ga. 2014).
Here, Defendants’ conduct was—and is—continuing and deliberate. The EO is an intentional policy intended to circumvent the rights of LPRs, and Defendants have only stated that they will not apply the EO as written. Even if this Court finds that Defendants have ceased their unlawful conduct, the timing of that cessation suggests that it was related to the numerous lawsuits filed to challenge the EO rather than a true “change of heart.” Indeed Defendants do not fully concede in their Motion that their conduct was ever unlawful. See ECF No. 19-1 at 6 (“if there was a question as to the applicability of the Executive Order to Plaintiff Mr. Tawfeeq on the day he filed the instant Complaint”) (emphasis added).
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Moreover, Defendants have argued in the Ninth Circuit for broad authority that would permit them to enforce the current EO against LPRs, or to issue further EOs that cover LPRs. Ex. C at 4-5. Defendants’ actions establish neither a change of heart nor an acknowledgement of liability.
Admittedly, a government is generally entitled to a presumption that once it has voluntarily ceased an illegal action, the objectionable behavior will not recur. Troiano, 382 F.3d at 1283. Critically, though, the government does not enjoy that presumption until the faulty policy has been “unambiguously terminated.” Id. at 1283, 1285. As argued above, the termination here is ambiguous because the underlying EO remains in force with language dictating that LPRs will be barred. And even if the EO were revised to eliminate reference to immigrants, Defendants’ position in the Ninth Circuit proceeding – that the government retains expansive powers to bar all immigrants—flies in the face of INA § 101(a)(13)(C), which states that returning residents like Plaintiff do not seek readmission upon their return to the United States and are treated as if they never left. Plaintiff seeks a declaration of his rights on precisely this point of law.
And in any case, Plaintiff has given the Court ample reason to overcome any presumption that the Government will not resume the unlawful behavior. Defendants have taken numerous positions on the current EO and have not yet
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consistently applied their new policy. Compare, e.g., Jews for Jesus, Inc. v. Hillsborough County Aviation Authority, 162 F.3d 627, 629-30 (11th Cir.) (finding no reasonable expectation of a return to a prior policy when the change occurred as a result of “substantial deliberation” and the new policy was consistently applied for three years). Defendants’ actions before the Ninth Circuit and in the EO itself suggest that they hope to press forward with subsequent EOs that apply to LPRs. See ECF No. 1-1 at § 3(e) (contemplating a subsequent EO against countries to be determined); City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 and n. 11 (1982) (finding no mootness when a city had indicated it would reenact a challenged ordinance). These factors give the Court much more than the required “reasonable basis” needed to conclude that the Government’s voluntary cessation has not mooted Plaintiff’s suit. Troiano, 382 F.3d at 1285.
B. The Government’s actions constitute conduct capable of repetition yet evading review.
The Court should also decline to find mootness because Defendants’ conduct here fits the “capable of repetition, yet evading review” exception to mootness. This exception requires that the Court find: (1) a reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party, and (2) the challenged action was too short in duration to be fully litigated prior to its cessation or expiration. See News-Journal Corp. v.
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Foxman, 939 F.2d 1499, 1507 (11th Cir. 1991). Plaintiff can make such a showing here.
First, the Government’s conduct to date gives rise to a reasonable expectation that the conduct will recur. Defendants elsewhere argue for broad authority to promulgate subsequent EOs that apply to LPRs. Defendants: (i) have not made a clear statement of the law that applies to returning LPRs, (ii) cite no authoritative instructions to their employees implementing the EO that are based on such a legal finding, and (iii) are taking litigation positions that confirm that the Defendants wish to reserve their rights to ignore applicable law—thus putting Plaintiff directly at risk of further injury in a future overseas trip.
Second, Defendants appear to be trying to evade proper judicial review by constantly shifting the playing field. Defendants clearly violated the rights of Plaintiff and other LPRs in the days after the EO’s issuance, but they changed their tune as soon as litigation was filed around the country. Plaintiff timely filed this case the day after his rights were violated and almost immediately sought expedited consideration, which Defendants opposed. Defendants issued the documents it relies on for mootness mere days after the deluge of lawsuits. And now Defendants have suggested they may withdraw the EO and replace it with a new EO of unknown content but that is intended, in the words of Senior White
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House Policy Adviser Stephen Miller, to achieve the “same basic policy outcome.” ECF No. 23-2 at 4; Ex. D.3 Defendants seek to evade judicial review through the seriatim enactment of policies of short duration that cause tremendous harm, and the mootness exception cited here forbids that.
C. The Government’s misconduct is a “brooding presence” in Plaintiff’s life.
The Supreme Court has indicated that mootness should not bar a suit when “the challenged governmental activity…is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties.” Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122 (1974). One court in the Eleventh Circuit considered Super Tire in allowing a First Amendment challenge relating to a special election even after that election had passed, based on the likelihood that the government would hold future, similar special elections. See Hall v. Bennett, 999 F. Supp. 2d 1266, 1269-70 (M.D. Ala. 2014).
Here Defendants clearly believe that the President has the ability to unilaterally suspend the entry of returning LPRs into the United States on a whim. Defendants are circumventing judicial review of the EO by reinterpreting its clear 3 Should the President issue a new EO, Plaintiff contends that any mootness arguments based on that EO should be brought as a separate motion to dismiss.
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language without withdrawing it. Plaintiff deserves to have his statutory and constitutional rights adjudicated to avoid the “brooding presence” both for the next 90 days and from a future EO that could unilaterally bar him from the country at a moment’s notice.
IV. Plaintiff continues to seek meaningful relief from this Court. Defendants contend that this Court can only now issue an “impermissible advisory opinion” that “cannot affect the rights of the litigants” because, Defendants claim, any ambiguity regarding Mr. Tawfeeq was “resolved—in his favor” upon issuance of the White House Counsel’s memorandum. ECF No. 19-1 at 6. For the reasons stated above, the issues raised by the EO are far from settled. This Court can still award numerous forms of relief for Plaintiff’s situation. For instance, the Court could issue a declaration that Plaintiff’s rights under the INA prevent Defendants from applying the EO to him, which would prevent Defendants from again changing course and applying the EO to LPRs. The Court can also award mandamus or injunctive relief requiring Defendants to issue guidance to the ports of entry that require them to inspect LPRs under INA § 101(a)(13)(C), regardless of this or any similar future EO to the contrary. Defendants cite an inapposite Fourth Amendment case for the proposition that the Plaintiff seeks only redress for future harm and that a “30 minute delay is
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not a constitutionally-cognizable injury.” ECF No. 19-1 at 7 n.3 (citing United States v. Flores-Montano, 541 U.S. 149, 154 n.3 (2004)). That case, however, concerned whether the Plaintiff had “some sort of Fourth Amendment right not to be subject to delay at the international border.” Flores-Montano, 541 U.S. at 154 n.3. Mr. Tawfeeq here asserts no Fourth Amendment claims but instead complains of violations of various statutes and of his procedural due process rights. See ECF No. 1 at ¶¶ 105-129.
Flores-Montano suggests that the duration of a delay might impact the analysis of whether a Fourth Amendment violation has occurred. Defendants give the Court no reason to believe, however, that the quantity of time Mr. Tawfeeq spent at the airport impacts his claims here, which center on statutory and due rights. If Defendants had carried through on their threats to send Mr. Tawfeeq back to Iraq without proper process, his rights would have been violated if Defendants took five minutes or five days to make that decision. Here, the government violated Mr. Tawfeeq’s clear rights—including his right to return to the United States under 8 U.S.C. § 1101(a)(13)(C) rather than be subjected to inquiry under the EO—the moment they told him the EO applied to him and sought an “e-mail” concerning whether he could enter the country. ECF No. 1 at ¶ 51-54. That the e-mail arrived in 30 minutes in no way renders Defendants
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application of the EO proper. And, in any case, Mr. Tawfeeq has properly alleged
that LPRs were turned away from the United States or not permitted to board
flights bound for the United States under the EO. See ECF 1 at ¶ 69-70. Plaintiff
seeks to remedy both the harm that already has occurred and the harm currently occurring—his inability to travel with certainty that he will be permitted to return.4
V. Courts have largely sided against the Government’s mootness claims.
Defendants also draw the Court’s attention to a recent District Court
decision from the District of Massachusetts in support of their mootness claims.
See ECF No. 19-1 at 6; ECF No. 19-3. That Court found no further conduct to
4 Defendants make the puzzling argument in a footnote that Plaintiff has raised “no claims relating to any action taken by Department of State with respect to Mr. Tawfeeq” and that the Department of State thus should be dismissed as a named Defendant. ECF No. 19-1 at 1 n.1. That contention is incorrect, as Plaintiff has alleged that all Defendants have and will violate his rights, see ECF No. 1 at ¶¶ 105-129, and has also alleged several facts that specifically relating to the Department of State’s role in that scheme. See, e.g., id. at ¶¶ 27-28, 59, 66. Moreover, while Plaintiff does not currently possess knowledge about which Defendant bears responsibility for each of the actions taken pursuant to the EO, the Department of State almost certainly plays at least some role in, for instance, preventing airlines abroad from allowing LPRs on flights. See id. at ¶ 70. It will be cold comfort to Plaintiff if the Court awards him the requested remedies as to the DHS, but the Department of State thereafter improperly revokes his visa or takes actions to prevent him from boarding a plane under the EO. Defendant Department of State is a proper party here. See Fed. R. Civ. Pro. 20(a)(2).
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enjoin based on the Government’s contention that the EO would no longer be applied to LPRs. That Court, however was deciding merely whether to extend a previously-granted TRO—which needless to say uses under a different standard than a motion to dismiss. And the Massachusetts Court gave no discussion whatsoever to the practical import of the White House Counsel’s memorandum or the serious questions regarding its legal validity raised above.
Moreover, three other Courts now have examined that memorandum and have concluded that it does not remove LPRs from legal jeopardy. The Western District of Washington granted a TRO despite the White House Counsel’s memorandum. See Ex. E (government opposition arguing that plaintiffs could not rely on injuries to LPRs in light of the White House counsel guidance); Ex. F (granting TRO). The Ninth Circuit then upheld that TRO—again despite mootness arguments based on the White House Counsel’s memorandum. See Ex. A at 21-22. Those same arguments were again rejected in the Eastern District of Virginia, which issued a preliminary injunction because “the EO presents an ongoing risk to the status of LPRs from the seven countries covered by the EO.” See Ex. G (memorandum in support of preliminary injunction) at 4; Ex. H (preliminary injunction). To Plaintiff’s knowledge, all Federal Courts that have considered the
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mootness issue more fully than the Massachusetts Court have rejected Defendants’

nearly identical mootness claims.

VI. Conclusion

For the foregoing reasons, Plaintiff requests that the Court deny Defendants’

Motion to Dismiss.

DATED February 27, 2017

Respectfully submitted,

/s/ Daniel P. Pierce Theresia M. Moser Georgia Bar No. 526514 Moser Law Co. 112 Krog Street N.E., Suite 26 Atlanta, Georgia 30307 Phone: (404) 537-5339 Fax: (404) 537-5340 tmoser@moserlawco.com

Carl W. Hampe (pro hac vice) Daniel P. Pierce (pro hac vice) Fragomen, Del Rey, Bernsen & Loewy LLP 1101 15th St. NW, Suite 700 Washington, DC 20005 Phone: (202) 223-5515 Fax: (202) 371-2898 champe@fragomen.com dpierce@fragomen.com

Attorneys for Plaintiff

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CERTIFICATE OF FONT AND POINT SELECTION Undersigned counsel hereby certifies, pursuant to L.R. 7.1(D), N.D. Ga., that the foregoing PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS was prepared in Times New Roman, 14 point font, which is one of the font and point selections approved in L.R. 5.1, N.D. Ga.
/s/ Daniel P. Pierce Daniel P. Pierce Attorney for Plaintiff

Case 1:17-cv-00353-TCB Document 25 Filed 02/27/17 Page 27 of 27

CERTIFICATE OF SERVICE I hereby certify that I have this day filed a true and correct copy of the

within and foregoing PLAINTIFF’S OPPOSITION TO DEFENDANTS’

MOTION TO DISMISS by using the Court’s CM/ECF, which will automatically

send e-mail notification of this filing to the following counsel of record:

Sheetul S. Wall Department of Justice - Office of Immigration Litigation P.O. Box 868 Ben Franklin Station 450 5th Street N.W. Washington, D.C. 20044 (202) 598-2668 Email: Sheetul.S.Wall2@usdoj.gov

This 27th day of February 2017.

/s/ Daniel P. Pierce Daniel P. Pierce

Attorney for Plaintiff

Case 1:17-cv-00353-TCB Document 25-1 Filed 02/27/17 Page 1 of 30
EXHIBIT A

Case 1:17-cv-00353-TCB Document 25-1 Filed 02/27/17 Page 2 of 30
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

STATE OF WASHINGTON; STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; REX W. TILLERSON, Secretary of State; JOHN F. KELLY, Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA,
Defendants-Appellants.

No. 17-35105 D.C. No.
2:17-cv-00141
ORDER

Motion for Stay of an Order of the United States District Court for the
Western District of Washington James L. Robart, District Judge, Presiding
Argued and Submitted February 7, 2017
Filed February 9, 2017
Before: William C. Canby, Richard R. Clifton, and Michelle T. Friedland, Circuit Judges
Per Curiam Order

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STATE OF WASHINGTON V. TRUMP

COUNSEL
August E. Flentje (argued), Special Counsel to the Assistant Attorney General; Douglas N. Letter, Sharon Swingle, H. Thomas Byron, Lowell V. Sturgill Jr., and Catherine Dorsey, Attorneys, Appellate Staff; Chad A. Readler, Acting Assistant Attorney General; Noel J. Francisco, Acting Solicitor General; Civil Division, United States Department of Justice, Washington, D.C., for Defendants-Appellants.
Noah G. Purcell (argued), Solicitor General; Marsha Chien and Patricio A. Marquez, Assistant Attorneys General; Colleen M. Melody, Civil Rights Unit Chief; Anne E. Egeler, Deputy Solicitor General; Robert W. Ferguson, Attorney General; Attorney General’s Office, Seattle, Washington; for Plaintiff-Appellee State of Washington.
Jacob Campion, Assistant Attorney General; Alan I. Gilbert, Solicitor General; Lori Swanson, Attorney General; Office of the Attorney General, St. Paul, Minnesota; for PlaintiffAppellee State of Minnesota.

ORDER
PER CURIAM:
At issue in this emergency proceeding is Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which, among other changes to immigration policies and procedures, bans for 90 days the entry into the United States of individuals from seven countries. Two States challenged the Executive Order as unconstitutional and violative of federal law, and a federal district court preliminarily ruled in their favor and

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STATE OF WASHINGTON V. TRUMP

3

temporarily enjoined enforcement of the Executive Order. The Government now moves for an emergency stay of the district court’s temporary restraining order while its appeal of that order proceeds.
To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.
Background
On January 27, 2017, the President issued Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (the “Executive Order”). 82 Fed. Reg. 8,977. Citing the terrorist attacks of September 11, 2001, and stating that “numerous foreign-born individuals have been convicted or implicated in terrorismrelated crimes” since then, the Executive Order declares that “the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.” Id. It asserts, “Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United

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STATE OF WASHINGTON V. TRUMP

States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.” Id.
The Executive Order makes several changes to the policies and procedures by which non-citizens may enter the United States. Three are at issue here. First, section 3(c) of the Executive Order suspends for 90 days the entry of aliens from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. 82 Fed. Reg. 8,977-78 (citing the Immigration and Nationality Act (INA) § 217(a)(12), codified at 8 U.S.C. § 1187(a)(12)). Second, section 5(a) of the Executive Order suspends for 120 days the United States Refugee Admissions Program. 82 Fed. Reg. 8,979. Upon resumption of the refugee program, section 5(b) of the Executive Order directs the Secretary of State to prioritize refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality. Id. Third, section 5(c) of the Executive Order suspends indefinitely the entry of all Syrian refugees. Id. Sections 3(g) and 5(e) of the Executive Order allow the Secretaries of State and Homeland Security to make case-by-case exceptions to these provisions “when in the national interest.” 82 Fed. Reg. 8,978-80. Section 5(e) states that situations that would be in the national interest include “when the person is a religious minority in his country of nationality facing religious persecution.” 82 Fed. Reg. 8,979. The Executive Order requires the Secretaries of State and Homeland Security and the Director of National Intelligence to evaluate the United States’ visa, admission, and refugee programs during the periods in which entry is suspended. 82 Fed. Reg. 8,977-80.
The impact of the Executive Order was immediate and widespread. It was reported that thousands of visas were

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STATE OF WASHINGTON V. TRUMP

5

immediately canceled, hundreds of travelers with such visas were prevented from boarding airplanes bound for the United States or denied entry on arrival, and some travelers were detained. Three days later, on January 30, 2017, the State of Washington filed suit in the United States District Court for the Western District of Washington, challenging sections 3(c), 5(a)-(c), and 5(e) of the Executive Order, naming as defendants the President, the Secretary of the Department of Homeland Security, the Secretary of State, and the United States (collectively, “the Government”). Washington alleged that the Executive Order unconstitutionally and illegally stranded its residents abroad, split their families, restricted their travel, and damaged the State’s economy and public universities in violation of the First and Fifth Amendments, the INA, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act. Washington also alleged that the Executive Order was not truly meant to protect against terror attacks by foreign nationals but rather was intended to enact a “Muslim ban” as the President had stated during his presidential campaign that he would do.
Washington asked the district court to declare that the challenged sections of the Executive Order are illegal and unconstitutional and to enjoin their enforcement nationwide. On the same day, Washington filed an emergency motion for a temporary restraining order (TRO) seeking to enjoin the enforcement of sections 3(c), 5(a)-(c), and 5(e) of the Executive Order. Two days later, Washington’s Complaint was amended to add the State of Minnesota as a plaintiff and to add a claim under the Tenth Amendment. Washington and Minnesota (collectively, “the States”) jointly filed an amended motion for a TRO. The Government opposed the

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motion the next day, and the district court held a hearing the day after that.
That evening, the court entered a written order granting the TRO. Washington v. Trump, No. C17-0141-JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017). The district court preliminarily concluded that significant and ongoing harm was being inflicted on substantial numbers of people, to the detriment of the States, by means of an Executive Order that the States were likely to be able to prove was unlawful. Id. at *2. The district court enjoined and restrained the nationwide enforcement of sections 3(c) and 5(a)-(c) in their entirety. Id. It enjoined section 5(e) to the extent that section “purports to prioritize refugee claims of certain religious minorities,” and prohibited the government from “proceeding with any action that prioritizes the refugee claims of certain religious minorities.” The court also directed the parties to propose a briefing schedule for the States’ request for a preliminary injunction and denied the Government’s motion to stay the TRO pending an emergency appeal. Id. at *3.
The Government filed a notice of appeal the next day and sought an emergency stay in this court, including an immediate stay while its emergency stay motion was under consideration. We denied the request for an immediate stay and set deadlines for the filing of responsive and reply briefs on the emergency stay motion over the next two days.1 Washington v. Trump, No. 17-35105, 2017 WL 469608 (9th Cir. Feb. 4, 2017). The motion was submitted after oral argument was conducted by telephone.

1 We have also received many amicus curiae briefs in support of both the Government and the States.

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7

Appellate Jurisdiction
The States argue that we lack jurisdiction over the Government’s stay motion because the Government’s appeal is premature. A TRO is not ordinarily appealable. See Bennett v. Medtronic, Inc., 285 F.3d 801, 804 (9th Cir. 2002). We may nonetheless review an order styled as a TRO if it “possesses the qualities of a preliminary injunction.” Serv. Emps. Int’l Union v. Nat’l Union of Healthcare Workers, 598 F.3d 1061, 1067 (9th Cir. 2010). This rule has ordinarily required the would-be appellant to show that the TRO was strongly challenged in adversarial proceedings before the district court and that it has or will remain in force for longer than the fourteen-day period identified in Federal Rule of Civil Procedure 65(b). See, e.g., id.
We are satisfied that in the extraordinary circumstances of this case, the district court’s order possesses the qualities of an appealable preliminary injunction. The parties vigorously contested the legal basis for the TRO in written briefs and oral arguments before the district court. The district court’s order has no expiration date, and no hearing has been scheduled. Although the district court has recently scheduled briefing on the States’ motion for a preliminary injunction, it is apparent from the district court’s scheduling order that the TRO will remain in effect for longer than fourteen days. In light of the unusual circumstances of this case, in which the Government has argued that emergency relief is necessary to support its efforts to prevent terrorism, we believe that this period is long enough that the TRO

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should be considered to have the qualities of a reviewable preliminary injunction.2
Standing
The Government argues that the district court lacked subject matter jurisdiction because the States have no standing to sue. We have an independent obligation to ascertain our jurisdiction, Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006), and we consider the Government’s argument de novo, see, e.g., Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1098 (9th Cir. 2016). We conclude that the States have made a sufficient showing to support standing, at least at this preliminary stage of the proceedings.
Article III, section 2 of the Constitution allows federal courts to consider only “Cases” and “Controversies.” Massachusetts v. EPA, 549 U.S. 497, 516 (2007). “Those two words confine ‘the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.’” Id. (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)). ”Standing is an essential and unchanging part of the case-or-controversy requirement” and is therefore a prerequisite to our jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The “gist of the question of standing” is whether the plaintiff has a sufficiently “personal stake in the outcome of the controversy” to ensure that the parties will be truly adverse and their legal

2 Our conclusion here does not preclude consideration of appellate jurisdiction at the merits stage of this appeal. See Nat’l Indus., Inc. v. Republic Nat’l Life Ins. Co., 677 F.2d 1258, 1262 (9th Cir. 1982).

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9

presentations sharpened. Massachusetts, 549 U.S. at 517 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
To establish Article III standing, a plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Id. (citing Lujan, 504 U.S. at 560-61).
Because standing is “an indispensable part of the plaintiff’s case,” it “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. At this very preliminary stage of the litigation, the States may rely on the allegations in their Complaint and whatever other evidence they submitted in support of their TRO motion to meet their burden. See id. With these allegations and evidence, the States must make a “clear showing of each element of standing.” Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013).3
The States argue that the Executive Order causes a concrete and particularized injury to their public universities, which the parties do not dispute are branches of the States under state law. See, e.g., Hontz v. State, 714 P.2d 1176, 1180 (Wash. 1986) (en banc); Univ. of Minn. v. Raygor, 620 N.W.2d 680, 683 (Minn. 2001).

3 Our decision in Townley concerned a motion for a preliminary injunction, but the legal standards applicable to TROs and preliminary injunctions are “substantially identical.” Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001).

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Specifically, the States allege that the teaching and research missions of their universities are harmed by the Executive Order’s effect on their faculty and students who are nationals of the seven affected countries. These students and faculty cannot travel for research, academic collaboration, or for personal reasons, and their families abroad cannot visit. Some have been stranded outside the country, unable to return to the universities at all. The schools cannot consider attractive student candidates and cannot hire faculty from the seven affected countries, which they have done in the past.
According to declarations filed by the States, for example, two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States; one was informed he would be unable to obtain a visa. Similarly, the University of Washington was in the process of sponsoring three prospective employees from countries covered by the Executive Order for visas; it had made plans for their arrival beginning in February 2017, but they have been unable to enter the United States. The University of Washington also sponsored two medicine and science interns who have been prevented by the Executive Order from coming to the University of Washington. The University of Washington has already incurred the costs of visa applications for those interns and will lose its investment if they are not admitted. Both schools have a mission of “global engagement” and rely on such visiting students, scholars, and faculty to advance their educational goals. Students and faculty at Minnesota’s public universities were similarly restricted from traveling for academic and personal reasons.
Under the “third party standing” doctrine, these injuries to the state universities give the States standing to assert the

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rights of the students, scholars, and faculty affected by the Executive Order. See Singleton v. Wulff, 428 U.S. 106, 11416 (1976) (explaining that third-party standing is allowed when the third party’s interests are “inextricably bound up with the activity the litigant wishes to pursue”; when the litigant is “fully, or very nearly, as effective a proponent of the right” as the third party; or when the third party is less able to assert her own rights). Vendors, for example, “have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.” Craig v. Boren, 429 U.S. 190, 195 (1976). Likewise, doctors have been permitted to assert the rights of their patients. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965). And advocacy organizations such as the NAACP have been permitted to assert the constitutional rights of their members. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958).
Most relevant for our purposes, schools have been permitted to assert the rights of their students. See, e.g., Runyon v. McCrary, 427 U.S. 160, 175 & n.13 (1976) (“It is clear that the schools have standing to assert these arguments [asserting free-association rights, privacy rights, and ‘a parent’s right to direct the education of his children’] on behalf of their patrons.”); Pierce v. Soc’y of Sisters, 268 U.S. 510, 536 (1925) (allowing a school to assert the “right of parents to choose schools where their children will receive appropriate mental and religious training [and] the right of the child to influence the parents’ choice of a school”); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1487-88 (9th Cir. 1995) (citing Pierce and rejecting the argument that the plaintiff school had no standing to assert claims of discrimination against its minority students); see also Ohio Ass’n of Indep. Sch. v. Goff, 92 F.3d 419, 422 (6th Cir. 1996) (citing similar authorities). As in those cases, the interests

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of the States’ universities here are aligned with their students. The students’ educational success is “inextricably bound up” in the universities’ capacity to teach them. Singleton, 428 U.S. at 115. And the universities’ reputations depend on the success of their professors’ research. Thus, as the operators of state universities, the States may assert not only their own rights to the extent affected by the Executive Order but may also assert the rights of their students and faculty members.4
We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement. The Government does not argue otherwise.

4 The Government argues that the States may not bring Establishment Clause claims because they lack Establishment Clause rights. Even if we assume that States lack such rights, an issue we need not decide, that is irrelevant in this case because the States are asserting the rights of their students and professors. Male doctors do not have personal rights in abortion and yet any physician may assert those rights on behalf of his female patients. See Singleton, 428 U.S. at 118.

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We therefore hold that the States have standing.5
Reviewability of the Executive Order
The Government contends that the district court lacked authority to enjoin enforcement of the Executive Order because the President has “unreviewable authority to suspend the admission of any class of aliens.” The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches—an uncontroversial principle that is well-grounded in our jurisprudence. See, e.g., Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (recognizing that “the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control” (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977))); see also Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010) (explaining that courts should defer to the political branches with respect to national security and foreign relations). Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the

5 The States have asserted other proprietary interests and also presented an alternative standing theory based on their ability to advance the interests of their citizens as parens patriae. Because we conclude that the States’ proprietary interests as operators of their public universities are sufficient to support standing, we need not reach those arguments.

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judiciary to entertain a constitutional challenge to executive actions such as this one.
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will”). Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.
Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (emphasizing that the power of the political branches over immigration “is subject to important constitutional limitations”); Chadha, 462 U.S. at 940-41 (rejecting the argument that Congress has “unreviewable authority over the regulation of aliens,” and affirming that courts can review “whether Congress has chosen a constitutionally

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permissible means of implementing that power”).6 Our court has likewise made clear that “[a]lthough alienage classifications are closely connected to matters of foreign policy and national security,” courts “can and do review foreign policy arguments that are offered to justify legislative or executive action when constitutional rights are at stake.” American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995).
Kleindienst v. Mandel, 408 U.S. 753 (1972), does not compel a different conclusion. The Government cites Mandel for the proposition that “‘when the Executive exercises’ immigration authority ‘on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion.’” The Government omits portions of the quoted language to imply that this standard governs judicial review of all executive exercises of immigration authority. In fact, the Mandel standard applies to lawsuits challenging an executive branch official’s decision to issue or deny an individual visa based on the

6 See also, e.g., Galvan v. Press, 347 U.S. 522, 530 (1954) (reaffirming the broad power of Congress over immigration, but observing that “[i]n the enforcement of these policies, the Executive Branch of the Government must respect the procedural safeguards of due process”); Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903) (reaffirming, in the context of adjudicating a constitutional challenge to an immigration policy, that “this court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Constitution”); Chae Chan Ping v. United States, 130 U.S. 581, 604 (1889) (“The powers to declare war, make treaties . . . and admit subjects of other nations to citizenship, are all sovereign powers, restricted in their exercise only by the constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations.”).

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application of a congressionally enumerated standard to the particular facts presented by that visa application. The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather, the States are challenging the President’s promulgation of sweeping immigration policy. Such exercises of policymaking authority at the highest levels of the political branches are plainly not subject to the Mandel standard; as cases like Zadvydas and Chadha make clear, courts can and do review constitutional challenges to the substance and implementation of immigration policy. See Zadvydas, 533 U.S. at 695; Chadha, 462 U.S. at 940-41.
This is no less true when the challenged immigration action implicates national security concerns. See Ex parte Quirin, 317 U.S. 1, 19 (1942) (stating that courts have a duty, “in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty”); Ex parte Milligan, 71 U.S. 2, 120-21 (1866) (“The Constitution of the United States is a law for rulers and people, equally in war and in peace . . . under all circumstances.”). We are mindful that deference to the political branches is particularly appropriate with respect to national security and foreign affairs, given the relative institutional capacity, informational access, and expertise of the courts. See Humanitarian Law Project, 561 U.S. at 3334.
Nonetheless, “courts are not powerless to review the political branches’ actions” with respect to matters of national security. Alperin v. Vatican Bank, 410 F.3d 532, 559 n.17 (9th Cir. 2005). To the contrary, while counseling deference to the national security determinations of the political branches, the Supreme Court has made clear that

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the Government’s “authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals,” even in times of war. Humanitarian Law Project, 561 U.S. at 34 (quoting id. at 61 (Breyer, J., dissenting)); see also United States v. Robel, 389 U.S. 258, 264 (1967) (“‘[N]ational defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.”); Zemel v. Rusk, 381 U.S. 1, 17 (1965) (“[S]imply because a statute deals with foreign relations [does not mean that] it can grant the Executive totally unrestricted freedom of choice.”).
Indeed, federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict. See, e.g., Boumediene, 553 U.S. 723 (striking down a federal statute purporting to deprive federal courts of jurisdiction over habeas petitions filed by non-citizens being held as “enemy combatants” after being captured in Afghanistan or elsewhere and accused of authorizing, planning, committing, or aiding the terrorist attacks perpetrated on September 11, 2001); Aptheker v. Sec’y of State, 378 U.S. 500 (1964) (holding unconstitutional a statute denying passports to American members of the Communist Party despite national security concerns); Ex parte Endo, 323 U.S. 283 (1944) (holding unconstitutional the detention of a law-abiding and loyal American of Japanese ancestry during World War II and affirming federal court jurisdiction over habeas petitions by such individuals). As a plurality of the Supreme Court cautioned in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), “Whatever power the United

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States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Id. at 536 (plurality opinion).
In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.
Legal Standard
The Government moves to stay the district court’s order pending this appeal. “A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926)). “It is instead ‘an exercise of judicial discretion,’ and ‘the propriety of its issue is dependent upon the circumstances of the particular case.’” Id. (quoting Virginian, 272 U.S. at 672-73) (alterations omitted). “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433-34.
Our decision is guided by four questions: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken, 556 U.S. at 434). “The first two factors . . . are the most critical,” Nken, 556 U.S. at 434, and the last two steps are reached “[o]nce an applicant satisfies the first two

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factors,” id. at 435. We conclude that the Government has failed to clear each of the first two critical steps. We also conclude that the final two factors do not militate in favor of a stay. We emphasize, however, that our analysis is a preliminary one. We are tasked here with deciding only whether the Government has made a strong showing of its likely success in this appeal and whether the district court’s TRO should be stayed in light of the relative hardships and the public interest.
The Government has not shown that it is likely to succeed on appeal on its arguments about, at least, the States’ Due Process Clause claim, and we also note the serious nature of the allegations the States have raised with respect to their religious discrimination claims. We express no view as to any of the States’ other claims.
Likelihood of Success—Due Process
The Fifth Amendment of the Constitution prohibits the Government from depriving individuals of their “life, liberty, or property, without due process of law.” U.S. Const. amend. V. The Government may not deprive a person of one of these protected interests without providing “notice and an opportunity to respond,” or, in other words, the opportunity to present reasons not to proceed with the deprivation and have them considered. United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014); accord Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985); ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1073 (9th Cir. 2015).
The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive

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Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.
In the district court, the States argued that the Executive Order violates the procedural due process rights of various aliens in at least three independent ways. First, section 3(c) denies re-entry to certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond. Second, section 3(c) prohibits certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States. Third, section 5 contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States. The district court held generally in the TRO that the States were likely to prevail on the merits of their due process claims, without discussing or offering analysis as to any specific alleged violation.
At this stage of the proceedings, it is the Government’s burden to make “a strong showing that [it] is likely to” prevail against the States’ procedural due process claims. Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken v. Holder, 556 U.S. 418, 426 (2009)). We are not persuaded that the Government has carried its burden for a stay pending appeal.
The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their

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presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982). The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens. For example, the Government has failed to establish that lawful permanent residents have no due process rights when seeking to re-enter the United States. See id. (“[T]he returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.” (quoting Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963))). Nor has the Government established that the Executive Order provides lawful permanent residents with constitutionally sufficient process to challenge their denial of re-entry. See id. at 35 (“[T]he courts must evaluate the particular circumstances and determine what procedures would satisfy the minimum requirements of due process on the re-entry of a permanent resident alien.”).
The Government has argued that, even if lawful permanent residents have due process rights, the States’ challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued “[a]uthoritative [g]uidance” stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents. At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order

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signed by the President and now challenged by the States, and that proposition seems unlikely.
Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc., v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (emphasis added).
Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972). Accordingly, the Government has not demonstrated that the States lack viable claims based

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on the due process rights of persons who will suffer injuries to protected interests due to the Executive Order. Indeed, the existence of such persons is obvious.
The Government argues that, even if the States have shown that they will likely succeed on some of their procedural due process claims, the district court nevertheless erred by issuing an “overbroad” TRO. Specifically, the Government argues that the TRO is overbroad in two independent respects: (1) the TRO extends beyond lawful permanent residents, and covers aliens who cannot assert cognizable liberty interests in connection with travelling into and out of the United States, and (2) the TRO applies nationwide, and enjoins application of the Executive Order outside Washington and Minnesota. We decline to modify the scope of the TRO in either respect.
First, we decline to limit the scope of the TRO to lawful permanent residents and the additional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well. Zadvydas, 533 U.S. at 693. That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States. See Din, 135 S. Ct. at 2139 (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting) (six Justices declining to adopt a rule that would categorically bar U.S. citizens from asserting cognizable liberty interests in the receipt of visas by alien spouses). There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.

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Second, we decline to limit the geographic scope of the TRO. The Fifth Circuit has held that such a fragmented immigration policy would run afoul of the constitutional and statutory requirement for uniform immigration law and policy. Texas v. United States, 809 F.3d 134, 187-88 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016). At this stage of the litigation, we do not need to and do not reach such a legal conclusion for ourselves, but we cannot say that the Government has established that a contrary view is likely to prevail. Moreover, even if limiting the geographic scope of the injunction would be desirable, the Government has not proposed a workable alternative form of the TRO that accounts for the nation’s multiple ports of entry and interconnected transit system and that would protect the proprietary interests of the States at issue here while nevertheless applying only within the States’ borders.
More generally, even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order. See United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 479 (1995) (declining to rewrite a statute to eliminate constitutional defects); cf. Aptheker v. Sec’y of State, 378 U.S. 500, 516 (1964) (invalidating a restriction on freedom of travel despite the existence of constitutional applications). The political branches are far better equipped to make appropriate distinctions. For now, it is enough for us to conclude that the Government has failed to establish that it will likely succeed on its due process argument in this appeal.
Likelihood of Success—Religious Discrimination
The First Amendment prohibits any “law respecting an establishment of religion.” U.S. Const. amend. I. A law that has a religious, not secular, purpose violates that clause,

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Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), as does one that “officially prefer[s] [one religious denomination] over another,” Larson v. Valente, 456 U.S. 228, 244 (1982). The Supreme Court has explained that this is because endorsement of a religion “sends the ancillary message to . . . nonadherents ‘that they are outsiders, not full members of the political community.’” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310 (2000) (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring)). The Equal Protection Clause likewise prohibits the Government from impermissibly discriminating among persons based on religion. De La Cruz v. Tormey, 582 F.2d 45, 50 (9th Cir. 1978).
The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); Larson, 456 U.S. at 254-55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-

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68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose).
The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.
The Balance of Hardships and the Public Interest
The Government has not shown that a stay is necessary to avoid irreparable injury. Nken, 556 U.S. at 434. Although we agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the Government has done little more than reiterate that fact. Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.
The Government has pointed to no evidence that any alien from any of the countries named in the Order has

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perpetrated a terrorist attack in the United States.7 Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.8 We disagree, as explained above.
To the extent that the Government claims that it has suffered an institutional injury by erosion of the separation of powers, that injury is not “irreparable.” It may yet pursue and vindicate its interests in the full course of this litigation. See, e.g., Texas v. United States, 787 F.3d 733, 767-68 (5th Cir. 2015) (“[I]t is the resolution of the case on the merits, not whether the injunction is stayed pending appeal, that will affect those principles.”).

7 Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.
8 In addition, the Government asserts that, “[u]nlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.” But the Government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that. 28 C.F.R. § 17.17(c) (describing Department of Justice procedures to protect classified materials in civil cases); 28 C.F.R. § 17.46(c) (“Members of Congress, Justices of the United States Supreme Court, and Judges of the United States Courts of Appeal and District Courts do not require a determination of their eligibility for access to classified information . . . .”); W.D. Wash. Civ. L.R. 5(g) (providing procedures governing filings under seal).

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By contrast, the States have offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple “other parties interested in the proceeding.” Nken, 556 U.S. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). When the Executive Order was in effect, the States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. These are substantial injuries and even irreparable harms. See Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’” (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976))).
The Government suggests that the Executive Order’s discretionary waiver provisions are a sufficient safety valve for those who would suffer unnecessarily, but it has offered no explanation for how these provisions would function in practice: how would the “national interest” be determined, who would make that determination, and when? Moreover, as we have explained above, the Government has not otherwise explained how the Executive Order could realistically be administered only in parts such that the injuries listed above would be avoided.
Finally, in evaluating the need for a stay, we must consider the public interest generally. See Nken, 556 U.S. at 434. Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages. On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from

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discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.
Conclusion
For the foregoing reasons, the emergency motion for a stay pending appeal is DENIED.

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EXHIBIT B

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EXHIBIT C

CaCsaes1e:1177--c3v5-010355, 30-2T/0C6B/20D1o7c, uIDm:e1n0t32054-1346F,iDlekdtE0n2t/r2y7:/7107, PPaaggee12ooff1156

No. 17-35105

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STATE OF WASHINGTON, et al., Plaintiffs-Appellees, v.
DONALD TRUMP, President of the United States, et al. Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

REPLY IN SUPPORT OF EMERGENCY MOTION FOR STAY PENDING APPEAL
_____________________

EDWIN S. KNEEDLER* Deputy Solicitor General

AUGUST E. FLENTJE Special Counsel to the Assistant Attorney General
DOUGLAS N. LETTER SHARON SWINGLE H. THOMAS BYRON III LOWELL V. STURGILL JR. CATHERINE DORSEY Attorneys, Appellate Staff Civil Division, Room 7241 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530

* The Acting Solicitor General and Acting Assistant Attorney General have refrained from signing this brief, out of an abundance of caution, in light of a last-minute filing of an amicus brief by their former law firm.

CaCsaes1e:1177--c3v5-010355, 30-2T/0C6B/20D1o7c, uIDm:e1n0t32054-1346F,iDlekdtE0n2t/r2y7:/7107, PPaaggee23ooff1156
The Executive Order is a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees. Relying on his express statutory authority to suspend entry of any class of aliens to protect the national interest, the President has directed a temporary suspension of entries through the refugee program and from countries that have a previously identified link to an increased risk of terrorist activity, see 8 U.S.C. § 1187(a)(12). The purpose of that temporary suspension is to permit an orderly review and revision of screening procedures to ensure that adequate standards are in place to protect against terrorist attacks. As a different district court recently concluded, that objective provides a “facially legitimate and bona fide” justification that satisfies any constitutional scrutiny that applies. Louhghalam v. Trump, Civ. Action No. 17-10154-NMG, Order 18-19 (D. Mass. Feb. 3, 2017); see id. at 10-11, 15-16.
The district court therefore erred in entering an injunction barring enforcement of the order. But even if some relief were appropriate, the court’s sweeping nationwide injunction is vastly overbroad, extending far beyond the State’s legal claims to encompass numerous applications of the Order that the State does not even attempt to argue are unlawful.
1. As an initial matter, the State cannot challenge the denial of entry or visas to third-party aliens. It is well-settled that a State lacks authority to sue “as the representative of its citizens” to protect them from the operation of federal law.
1

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Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923); South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966). The State invokes the “special solicitude” for States referred to in Massachusetts v. EPA, but there, Massachusetts sought to enforce a congressionally created “procedural right” to protect a loss of “sovereign territory.” 549 U.S. 497, 519-20, 522-23 (2007). Here, by contrast, the State’s interest in protecting its own territory is not at issue. Instead, the Constitution vests the federal government with exclusive power over immigration for the Nation as a whole, and Congress did not create any “procedural right” for States to sue the federal government to challenge its decisions to deny the entry of (or revoke visas held by) third-party aliens.
To the contrary, an alien outside the United States has no substantive right or basis for judicial review in the denial of a visa at all. See Brownell v. Tom We Shung, 352 U.S. 180, 184 n.3, 185 n.6 (1956). Moreover, Congress has been clear that the issuance of a visa to an alien does not confer upon that alien any right of admission into the United States, 8 U.S.C. § 1201(h), and that the Secretary of State “may, at any time, in his discretion, revoke such visa or other documentation.” Id. § 1201(i). If a visa is revoked, even the alien himself has no right of judicial review “except in the context of a removal proceeding,” and only if the visa revocation “provides the sole ground for removal.” Id. And even an alien who has been admitted to and developed significant ties with this country, who has as a result come within the
2

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protection of the Fifth Amendment’s Due Process Clause, has no protected property or liberty interest in the retention of his visa. Knoetze v. U.S. Dep’t of State, 634 F.2d 207, 212 (5th Cir. 1981). A fortiori, the State cannot challenge the revocation of third-party aliens’ visas here. The State likewise cannot challenge the Executive’s decision not to admit a refugee.
The Supreme Court’s decisions in Kerry v. Din, 135 S. Ct. 2128 (2015), and Kleindienst v. Mandel, 408 U.S. 753 (1972), also do not support even limited judicial review of the State’s claims here. In those cases, U.S. citizens sought review of the denial of a third-party visa on the ground that the citizens had an independent constitutionally-protected interest in the third-party’s admission to the country— either a marital relationship or a First Amendment interest. The State, in contrast, has no independent constitutional rights to invoke with respect to the denial of admission of aliens affected by the Order.
2. Even if it could establish standing and a right of judicial review, the State would be unlikely to succeed on the merits of its claims.
a. Congress has granted the President broad discretion under 8 U.S.C. § 1182(f) to suspend the entry of “any class of aliens” into the United States, and independently broad discretion over the refugee program under 8 U.S.C. § 1157. The exclusion of aliens is also “a fundamental act of sovereignty * * * inherent in the executive power to control the foreign affairs of the nation.” United States ex
3

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rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). The State does not address the text of § 1182(f), or the extensive caselaw relating to the exclusion of aliens from the United States. And although the State suggests (Response 23) that it is somehow impermissible for the President to rely on § 1182(f) “to impose a categorical ban on admission,” the statute’s broad grant of authority to suspend the entry “of any class of aliens,” “for such period as [the President] shall deem necessary,” whenever the President finds that it would be “detrimental to the interests of the United States,” clearly authorizes the categorical, temporary suspension the President has adopted here.
b. The State continues to argue that Section 3(c)’s temporary suspension of the entry of aliens from seven countries contravenes the restriction on nationalitybased distinctions in 8 U.S.C. § 1152(a)(1)(A). But that restriction applies only to “the issuance of an immigrant visa,” Id., not to the President’s restrictions on the right of entry. It also has no application at all to aliens who hold or seek nonimmigrant visas, such as student visas or work visas. And § 1152(a)(1)(B) permits, as here, a temporary suspension of entry pending completion of a review and revision of procedures for processing visa applications.
Furthermore, even if it applied, § 1152(a)(1)(A) would not restrict § 1182(f)’s broad grant of discretionary authority. A court should, whenever possible, “interpret two seemingly inconsistent statutes to avoid a potential conflict,” California ex rel.
4

CaCsaes1e:1177--c3v5-010355, 30-2T/0C6B/20D1o7c, uIDm:e1n0t32054-1346F,iDlekdtE0n2t/r2y7:/7107, PPaaggee67ooff1156
Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1012 (9th Cir. 2000), and should interpret “the specific [to] govern[] the general.” RadLAX Gateway Hotel v. Amalgamated Bank, 132 S. Ct. 2065, 2070-71 (2012). Here, § 1152(a)(1)(A) establishes a general rule governing the issuance of immigrant visas, whereas § 1182(f) governs the specific instance in which the President determines that entry of a “class of aliens” would be “detrimental to the interests of the United States.” The State’s assertion that § 1152(a)(1)(A) limits that authority would mean that the President would be statutorily disabled from barring the entry of nationals of a country with which the United States was at war—a result that would raise serious constitutional questions, which is itself a sufficient reason to reject the State’s reading. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988).
c. The State asserts that the Order violates the constitutional rights of lawful permanent residents (LPRs). Response at 10, 15 & n.3, 16. But the Order does not apply to LPRs. Exhibit D. It applies only to aliens who lack LPR status. And most of those aliens are outside the United States and have never been admitted to this country. The Supreme Court “has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” Landon v. Plasencia, 459 U.S. 21, 32 (1982).
5

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The State argues (Response 9) that “courts routinely review executive decisions with far greater security implications than this Order.” In those cases, however, the courts were reviewing government actions taken against individuals who had rights under the U.S. Constitution or federal statutes with respect to the adverse actions they faced. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004) (plurality op.) (reviewing indefinite detention of U.S. citizen); Boumediene v. Bush, 553 U.S. 723 (2008) (reviewing detention of aliens held to have constitutionally protected interest in habeas corpus review). Those cases do not override the longstanding rule that aliens outside the United States have no right or interest in their admission to the United States protected by the Due Process Clause, Knauff, 338 U.S. at 543, or the rule that non-immigrants do not have a liberty or property interest in the retention of a visa.
d. The State’s constitutional challenges lack merit. i. The State first asserts that the Order violates the Establishment
Clause and equal protection principles because it was assertedly based on animus against Muslims. That is incorrect. There are two separate aspects of the Order challenged here, and both are neutral with respect to religion.
First, Section 3(c) temporarily suspends entry of aliens from seven countries previously identified under 8 U.S.C. § 1187(a)(12). Those countries were identified by Congress and the Executive Branch as being associated with a heightened risk of
6

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terrorism. Congress itself identified Iraq and Syria, where “the Islamic State of Iraq and the Levant (ISIL) * * * maintain[s] a formidable force.” U.S. Department of State, Country Reports on Terrorism 2015 6 (June 2016). See 8 U.S.C. § 1187(a)(12)(A)(i)(I), (ii)(I). Congress also incorporated countries designated as state sponsors of terrorism: Iran, Sudan, and Syria. Id. § 1187(a)(12)(A)(i)(II) and (ii)(II). And in 2016, the Executive Branch added Libya, Somalia, and Yemen after a review that considered “whether the country or area is a safe haven for terrorists” and “whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States.” 8 U.S.C. § 1187(a)(12)(D)(iii); https://www.dhs.gov/news/20016/02/18/dhsannounces-further-travel-restrictions-visa-waiver-program.
Second, Section 5(a) temporarily suspends the refugee program as to refugees from all countries, not just the seven countries identified in Section 3(c). Section 5(b) further provides that, when the refugee program resumes, the Secretary of State shall “make changes, to the extent permitted by law, to prioritize refugee claims” by members of persecuted minority religions. Laws that “give relief to a religious minority” “are in tune with the Bill of Rights,” Kong v. Scully, 341 F.3d 1132, 1141 (9th Cir. 2003), and Section 5(b) of the Order applies equally to all religious minorities seeking refugee status “on the basis of religious-based persecution.” As the district court recognized in Louhghalam, Section 5(b) “could be invoked to give
7

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preferred refugee status to a Muslim individual in a country that is predominantly Christian.” Order 13.2
Accordingly, as the district court held in Louhghalam, Order 13, the Executive Order is “neutral with respect to religion.” And under Mandel, the Order’s nationalsecurity basis for the temporary suspension amply establishes its constitutionality. See also Louhghalam, Order 18-19. The State asserts (Response 10) that the Court should “look behind” the stated basis for the Order to probe its subjective motivations because the State claims to have made “an affirmative showing of bad faith.” Din, 135 S. Ct. at 2141 (Kennedy, J., concurring). But the State’s allegations of bad faith are not meaningfully different from the allegations deemed insufficient in Mandel, where the plaintiff asserted that the visa was denied because of the alien’s advocacy of revolutionary Marxism and world communism, rather than his failure to comply with the terms of prior visas. 408 U.S. at 756; see Din, 135 S. Ct. at 21412142 (Kennedy, J., concurring) (endorsing Mandel). And here, the State asks the courts to take the extraordinary step of second-guessing a formal national-security judgment made by the President himself pursuant to broad grants of statutory authority.
2 Washington relies on Larson v. Valente, 456 U.S. 228 (1982), but that holding is limited to cases where a government statute or practice “explicitly discriminates against a certain religious group.” Sep. of Church & State Comm. v. City of Eugene, 93 F.3d 617, 623 (9th Cir. 1996) (O’Scannlain, J., concurring).
8

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ii. The State also argues (Response 14-18) that the order violates aliens’ procedural due process rights. But as explained above, aliens outside the United States have no due process rights with respect to their attempt to gain entry into this country. And regardless, “notice and an opportunity to respond” is not required where, as here, the challenged rule reflects a categorical judgment. Cf. BiMetallic Inv. Co. v. State Bd. Of Equalization, 239 U.S. 441, 445 (1915) (“[w]here a rule of conduct applies to more than a few people,” individuals affected do not “have a constitutional right to be heard before a matter can be decided”); see also Din, 135 S. Ct. at 2144 (Breyer, J., dissenting) (citing Bi-Metallic).
3. The State argues (Response 7-8) that the injunction does not impose any irreparable harm. But the injunction reinstates procedures that the President determined should be temporarily suspended in the interest of national security. Order § 1; see also id. § 2. The Order temporarily suspends entry of aliens from seven countries previously identified by Congress and the Executive Branch as raising heightened terrorism-related concerns. The suspension terminates in 90 days, once concerns relating to screening practices can be addressed, as necessary “to prevent infiltration [into this Nation] by foreign terrorists or criminals,” Order § 3(c). Similarly, the temporary suspension of the U.S. refugee program will be lifted after 120 days, once the Secretaries of State and Homeland Security, in consultation with the Director of National Intelligence, determine “what additional
9

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procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States.” Order § 5(a). The potential national-security risks and harms resulting from the compelled application of procedures that the President has determined must be reexamined, for the purpose of ensuring an adequate measure of protection for the Nation, cannot be undone. Nor can the effect on our constitutional separation of powers.
4. Regardless of the plaintiff’s likelihood of success, the injunction court is, at a minimum, vastly overbroad. The State has made clear that it is seeking to protect LPRs and other nationals from the seven identified countries who were previously admitted to the United States and are either temporarily abroad or are here now and wish to travel outside this country—not aliens who are attempting to enter the country for the first time. See Response 11-12, 15-16; Transcript 7-8, 1516. That makes sense because the latter class of aliens have no constitutional rights with respect to entry into the country—a point the State largely conceded below. See Transcript 7, 15. The injunction, however, bars all applications of Section 3(c)—even as to aliens who have never previously visited this country, and have not yet begun the process of obtaining a visa. It also bars all applications of Section 5, even though there is no indication that any of the aliens affected by the temporary
10

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suspension of the refugee program have been previously admitted to this country.3 That is plainly impermissible. At most, the injunction should be limited to the class of individuals on whom the State’s claims rest—previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.
3 Indeed, the district court even enjoined a provision that will not go into effect for 120 days, a provision as to which even plaintiffs conceded that their challenge is not ripe for review. Transcript 15 (Section 5(b) claim “does not necessarily require immediate injunction”).
11

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CONCLUSION

For the foregoing reasons, defendants respectfully request a stay pending

appeal of the district court’s February 3, 2017 injunctive order.

Respectfully submitted,

/s/ Edwin S. Kneedler EDWIN S. KNEEDLER* Deputy Solicitor General

AUGUST E. FLENTJE Special Counsel to the Assistant Attorney General
DOUGLAS N. LETTER SHARON SWINGLE H. THOMAS BYRON III LOWELL V. STURGILL JR. CATHERINE DORSEY Attorneys, Appellate Staff Civil Division, Room 7241 U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530

12
* The Acting Solicitor General and Acting Assistant Attorney General have refrained from signing this brief, out of an abundance of caution, in light of a last-minute filing of an amicus brief by their former law firm.

CaCsaes1e:1177--c3v5-010355, 30-2T/0C6B/20D1o7c, uIDm:e1n0t32054-1346F,iDlekdtE0n2t/r2y7:/7107, PPaaggee1145ooff1156
CERTIFICATE OF SERVICE I hereby certify that on February 6, 2017, I filed the foregoing motion with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. All participants in the case are registered CM/ECF users and will be served by the appellate CM/ECF system.
s/ Lowell V. Sturgill Jr. Lowell V. Sturgill Jr.

CaCsaes1e:1177--c3v5-010355, 30-2T/0C6B/20D1o7c, uIDm:e1n0t32054-1346F,iDlekdtE0n2t/r2y7:/7107, PPaaggee1156ooff1156
CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing Reply in Support of Emergency Motion for Stay Pending Appeal complies with the type-volume limitation of Fed. R. App. P. 27 because it contains 2,599 words. This Motion complies with the typeface and the type style requirements of Fed. R. App. P. 27 because this brief has been prepared in a proportionally spaced typeface using Word 14-point Times New Roman typeface.
s/ Lowell V. Sturgill Jr. Lowell V. Sturgill Jr.

Case 1:17-cv-00353-TCB Document 25-4 Filed 02/27/17 Page 1 of 2
EXHIBIT D

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Case 1:17-cv-00353-TCB Document 25-5 Filed 02/27/17 Page 1 of 35
EXHIBIT E

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1

The Honorable James L. Robart

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

9

STATE OF WASHINGTON and

STATE OF MINNESOTA, 10

No. 2:17-cv-00141 (JLR)

11

Plaintiffs,

DEFENDANTS’ OPPOSITION TO

12

v.

PLAINTIFF STATE OF

WASHINGTON’S MOTION FOR

13

DONALD TRUMP, in his official capacity as TEMPORARY RESTRAINING

14

President of the United States; U.S. DEPARTMENT OF HOMELAND

ORDER

15

SECURITY; JOHN F. KELLY, in his official

capacity as Secretary of the Department of

Noted For Consideration:

16

Homeland Security; REX W. TILLERSON, in February 3, 2017

his official capacity as Secretary of State;1 and

17

the UNITED STATES OF AMERICA,

18 Defendants.
19

20

21

22

23

24

25

26

27

1 Rex W. Tillerson, Secretary of State, has been substituted for Tom Shannon pursuant to Federal Rule of Civil

28

Procedure 25(d).

DEFENDANTS’ OPPOSITION TO PLAINTIFF STATE OF WASHINGTON’SMOTION FOR TEMPORARY RESTRAINING ORDER State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

CCaasese12:1:177-c-vc-v0-00315431-T-JCLBR DDooccuummeenntt2550-5 FFileiledd0022/0/27/1/177 PPaaggee23oof 3f 345

1

TABLE OF CONTENTS

2 INTRODUCTION ........................................................................................................................ 1
3 BACKGROUND .......................................................................................................................... 3 4
I. The Immigration and Nationality Act ........................................................................ 3 5
II. Presidential Authority Over Foreign Affairs and National Security .......................... 5 6
III. The President’s Executive Order of January 27, 2017 ............................................... 6 7
8 STANDARD OF REVIEW.......................................................................................................... 8
9 ARGUMENT ............................................................................................................................... 9

10

I. The State Lacks Standing to Invoke the Court’s Jurisdiction .................................... 9

11

A. The State Lacks Standing on Its Own Behalf....................................................... 9

12

B. The State Cannot Bring a Parens Patriae Action Here ..................................... 12

13

II. The State Does Not Demonstrate It Is Likely to Prevail on the Merits.................... 14

14

A. The Executive Order Is a Valid Exercise of Congress’ Broad Delegation

15

of Authority to the President, and His Own Constitutional Powers................... 14

16

B. This Court Cannot, and Need Not, Review the President’s National

Security Determinations Underlying the Executive Order................................. 19 17

18

C. The State’s Facial Constitutional Challenges Fail.............................................. 23

19

III. The State Has Made No Showing of Irreparable Harm ........................................... 26

20

IV. The Balance of the Equities and the Public Interest Mandate Against a

Temporary Restraining Order................................................................................... 28

21

V. Any Relief Entered Must Be Limited in Scope to the Plaintiff State and to

22

the Specific Harm Found .......................................................................................... 30

23 CONCLUSION .......................................................................................................................... 30 24

25

26

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - i State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

CCaasese12:1:177-c-vc-v0-00315431-T-JCLBR DDooccuummeenntt2550-5 FFileiledd0022/0/27/1/177 PPaaggee34oof 3f 345

1

INTRODUCTION

2

A provision of the Immigration and Nationality Act (INA) titled “Suspension of entry or

3 imposition of restrictions by President,” 8 U.S.C. § 1182(f), authorizes the President to “suspend
4 the entry of . . . any class of aliens” whenever the President determines their entry “would be
5

6 detrimental to the interests of the United States[.]” Invoking that authority, on January 27, 2017,

7 the President issued an Executive Order titled “Protecting the Nation from Foreign Terrorist

8 Entry into the United States.” See ECF No. 1-7. The Executive Order’s purpose is “to protect

9 the American people from terrorist attacks by foreign nationals admitted to the United States,”

10 id. pmbl., and as pertinent here it directs the following actions:
11

12

• a 90-day suspension of entry for individuals from certain countries, during which time the Secretary of Homeland Security and other officials must review whether the United

13

States has adequate information to determine that an individual seeking an immigration

benefit “is not a security or public-safety threat,” see id. § 3(a), (c);

14

• a 120-day suspension of the U.S. Refugee Admissions Program (“USRAP” or “refugee

15

program”), during which time the Secretary of State and other officials must “review the

16

USRAP application and adjudication process to determine what additional procedures

should be taken to ensure that those approved for refugee admission do not pose a threat

17

to the security and welfare of the United States, and shall implement such additional

procedures,” see id. § 5(a); and 18

• a suspension of entry of Syrian nationals as refugees, until such time as the President

19

determines “that sufficient changes have been made to the USRAP to ensure that

20

admission of Syrian refugees is consistent with the national interest,” see id. § 5(c).

21 The Executive Order also contains waiver provisions permitting exceptions from some of these

22 actions. See, e.g., id. §§ 3(g), 5(e).

23

Despite this plain congressional authorization to the President to make determinations

24 regarding national security and the admissibility of aliens, the State of Washington (hereafter,
25

“the State”) requests entry of a temporary restraining order prohibiting enforcement nationwide 26

27 of the President’s Executive Order. See Proposed Order (ECF No. 3-1) at 3 ¶ 2. The State does

28 so despite the heavy burden it carries to justify such an “extraordinary remedy,” particularly

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 1 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

CCaasese12:1:177-c-vc-v0-00315431-T-JCLBR DDooccuummeenntt2550-5 FFileiledd0022/0/27/1/177 PPaaggee45oof 3f 345

1 where the remedy would interfere with Congress’ determination that it is the President, not a

2 court or a single state, that should make the relevant judgments over national security and foreign 3
affairs. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 22, 25-26 (2008). 4
At the outset, the State’s motion for a temporary restraining order (ECF No. 3, hereafter 5 6 “TRO Mot.”) overlooks whether the State even has standing to pursue its claims. It is well-
7 established that a state cannot sue the Federal Government on a parens patriae theory. And the

8 State’s attempts to manufacture standing in its own right—i.e., through lost tax revenues, or
9 reputational injury to its universities—are not concrete, particularized harms cognizable under 10
Article III. Many of the State’s claimed harms, moreover, simply do not exist. Most 11
significantly, the State cannot rely on injuries to lawful permanent residents (“LPRs”), as it seeks 12 13 to do, in light of guidance from the White House clarifying that the 90-day suspension of entry
14 does not apply to those individuals.1

15

The State’s claims likewise fails on the merits. Congress has “plenary power” over the

16 admission and exclusion of aliens, Kleindienst v. Mandel, 408 U.S. 753, 766 (1972), and here
17 expressly has delegated to the President the broad power to suspend entry “of any class of aliens
18
19 into the United States.” 8 U.S.C. § 1182(f). The President’s exercise of his Section 1182(f)

20 authority is committed to his discretion by law, and thus judicial review is precluded. Moreover,

21 that delegation, combined with the President’s own Article II powers in this realm, placed the
22 President at the apex of his authority when issuing the Executive Order. Cf. Youngstown Sheet 23
& Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). The Order was well 24
within the President’s authority under Congress’ delegation, particularly in an area, like 25 26 immigration, in which the admission to the United States of foreign aliens is subject to plenary

27

1 See Memorandum from Donald F. McGahn II, Counsel to the President (Feb. 1, 2017) (filed herewith as Exhibit A)

28

(hereafter “Feb. 1, 2017 Memorandum”).

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 2 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 control by the political branches. See Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“This Court

2 has long held that an alien seeking initial admission to the United States requests a privilege and
3 has no constitutional rights regarding his application, for the power to admit or exclude aliens is
4 a sovereign prerogative.”). In light of these principles, the State’s claims on the merits cannot
5
6 succeed, for they would force this Court to override the plenary power of the political branches

7 to determine which aliens should be admitted into this Nation’s borders according to those

8 branches’ assessments of the foreign policy and national security interests of the United States.

9

Indeed, the State’s likelihood of success faces a particularly insurmountable barrier

10 because the State is bringing a facial challenge to the Executive Order. To prevail on its facial
11

challenge, the State must prove that the Executive Order is unconstitutional in all (or at least 12

13 most) of its applications. It cannot do so. At a minimum, because there are unquestionably a

14 significant number of lawful applications of the Executive Order—e.g., to non-resident

15 unadmitted aliens—the State’s facial challenge necessarily must fail.
16 Nor can the State sustain its other burdens. The State’s claimed irreparable harm is vague
17 and abstract, and certainly not occurring with the immediacy necessary to warrant a temporary
18 19 restraining order (i.e., within the coming days or weeks). The balance of the equities and the
20 public interest also decisively favor the United States, given that the State’s requested relief

21 would interfere with the President’s exercise of plenary power delegated by Congress. As these

22 factors, like the merits, weigh squarely against judicial relief, the State’s motion should be denied.

23 BACKGROUND

24

I.

THE IMMIGRATION AND NATIONALITY ACT

25

26

The Immigration and Nationality Act of 1952 (“INA”), 8 U.S.C. §§ 1101 et seq., as

27 amended, provides the legal framework under which Congress has exercised and delegated its

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 3 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 constitutional authority to determine who is permitted to enter the United States, who is permitted

2 to remain in the United States, and for what reasons persons may be admitted to or removed from
3 the United States. Central to the Court’s consideration of the issues before it is Section 212(f) of
4 the INA, 8 U.S.C. § 1182(f), which provides broad authority to the President to suspend or
5
6 impose restrictions on the entry of aliens into the United States:

7

(f) Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens

8

into the United States would be detrimental to the interests of the United States,

9

he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or

10

impose on the entry of aliens any restrictions he may deem to be appropriate. . . .

11

Every President over the last thirty years has invoked this authority to suspend or impose

12 restrictions on the entry of certain aliens or classes of aliens,2 in some instances including
13 classifications based on nationality. For example, in 1986, President Reagan (through
14 Presidential Proclamation 5517) invoked section 212(f) to suspend entry of Cuban nationals as
15
16 immigrants into the United States, subject to certain exceptions. See Suspension of Cuban

17 Immigration, 1986 WL 796773 (Aug. 22, 1986). In 1996, President Clinton (through

18 Presidential Proclamation 6958) invoked section 212(f) to suspend entry, subject to certain
19 exceptions, of members of the Government of Sudan, officials of that Government, and members 20
of the Sudanese armed forces as immigrants or nonimmigrants into the United States. See 21
Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Are Members or 22
23 Officials of the Sudanese Government or Armed Forces, 1996 WL 33673860 (Nov. 22, 1996).

24

25

2 See, e.g., Presidential Proclamation 5517 (President Reagan); Exec. Order No. 12,324 (President Reagan); Exec.

26

Order No. 12,807 (President George H.W. Bush); Presidential Proclamation 6958 (President Clinton); Presidential

Proclamation 8342 (President George W. Bush); Presidential Proclamation 8693 (President Obama); Exec. Order

27

No. 13,694 (President Obama); Exec. Order No. 13,726 (President Obama). The Department of States maintains a

list of Section 212(f) Presidential Proclamations that currently affect the issuance of United States visas at

28

https://travel.state.gov/content/visas/en/fees/presidential-proclamations.html.

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 4 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1

Congress likewise has expressly drawn distinctions based on nationality. For example,

2 in 2015, Congress amended the INA to exclude certain individuals from a visa waiver program 3
(i.e., the ability to enter the United States as a nonimmigrant without a visa) on the basis of 4
nationality.3 See Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, 129 Stat. 2242, 5 6 2990 (2015) (codified at 8 U.S.C. § 1187(a)(12)). Congress expressly excluded nationals of Iraq
7 and Syria from the program, see 8 U.S.C. § 1187(a)(12)(A)(ii), and created a process by which

8 the Secretary of Homeland Security could designate additional “Countries or areas of concern,”
9 for exclusion of a country’s nationals. See id. § 1187(a)(12)(D). As of February 2016, the 10
exclusion applied to nationals of Iraq and Syria (pursuant to the statute’s plain text), as well as 11
nationals of Iran, Sudan, Libya, Somalia, and Yemen (pursuant to Executive Branch designations 12 13 under the statutory scheme). See Dep’t of Homeland Sec., DHS Announces Further Travel
14 Restrictions for the Visa Waiver Program (Feb. 18, 2016).4 These seven countries excluded

15 from the visa waiver program are the same seven countries that are covered by Section 3 of the

16 President’s January 27, 2017 Executive Order. See Executive Order § 3(c) (incorporating by

17
reference “countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12)”). 18

19

II. PRESIDENTIAL AUTHORITY OVER FOREIGN AFFAIRS AND NATIONAL SECURITY

20

These delegations of authority to deny entry to certain classes of aliens, based on the

21 President’s findings regarding the national interest, fall in the heartland of (and are bolstered by) 22

23

24

3 The INA sets out several terms of art. An “alien” is any person who is neither a citizen nor a national of the United States. See 8 U.S.C. § 1101(a)(3). A “nonimmigrant” is an alien admitted to the United States on a temporary

25

basis, with one of the visa categories established for particular purposes under 8 U.S.C. § 1101(a)(15). On the other hand, an “immigrant” is an individual who is permitted to stay in the United States on a permanent basis. Within

26

the category of “immigrant,” an individual may be admitted with the privilege of residing permanently in the United States, thereby acquiring LPR status. See 8 U.S.C. § 1101(a)(20). LPRs are authorized to work in the United States,

as are some aliens temporarily admitted pursuant to certain nonimmigrant categories. See generally 8 C.F.R. §

27

274a.12 (Classes of aliens authorized to accept employment).

28

4 https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictions-visa-waiver-program

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 5 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 the President’s broad authority under Article II relating to foreign affairs and national security.

2 See U.S. Const., art. II, § 2 (“Commander in Chief” power, and authority to “make treaties” and
3 “appoint ambassadors”), § 3 (power to “receive ambassadors”). As the Supreme Court
4 repeatedly has held, Article II confers upon the President expansive authority over foreign affairs,
5
6 national security, and immigration. See Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (“The

7 exclusion of aliens is a fundamental act of sovereignty . . . inherent in the executive power to

8 control the foreign affairs of the nation.”); United States v. Curtiss-Wright Exp. Corp., 299 U.S.

9 304, 320 (1936) (discussing “the very delicate, plenary and exclusive power of the President as
10 the sole organ of the federal government in the field of international relations—a power which
11 does not require as a basis for its exercise an act of Congress”).
12

13

III. THE PRESIDENT’S EXECUTIVE ORDER OF JANUARY 27, 2017

14

Invoking these constitutional and statutory authorities, on January 27, 2017, the President

15 issued an Executive Order titled: “Protecting the Nation from Foreign Terrorist Entry into the

16 United States.” See ECF No. 1-7, also available at 2017 WL 394075. The Executive Order is
17 intended “to protect the American people from terrorist attacks by foreign nationals admitted to
18
19 the United States.” Executive Order § 2.

20

To accomplish this purpose, the Executive Order directs a number of actions. See id.

21 §§ 2-11. First, Section 3 of the Executive Order directs the Secretary of Homeland Security (in

22 consultation with other Executive Branch officials) to immediately conduct a review to identify
23 the “information needed from any country . . . to determine that [an] individual seeking [an
24 immigration-related] benefit is who the individual claims to be and is not a security or public-
25
26 safety threat.” Id. § 3(a). The Secretary must, within 30 days of the Executive Order, “submit

27 to the President a report on the results of the review,” as well as “a list of countries that do not

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 6 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 provide adequate information[.]” Id. § 3(b). During the next 60 days, the Executive Order directs

2 a process for requesting necessary information from foreign governments that do not supply such
3 information, and consequences for countries not providing the information. See id. § 3(d)-(f).
4 While this review is ongoing, the Executive Order, pursuant to section 212(f) of the INA,
5
6 suspends entry for 90 days of aliens from the seven countries covered by 8 U.S.C. § 1187(a)(12).

7 Id. § 3(c). During this period, exceptions may be made (on a case-by-case basis) by the

8 Secretaries of State or Homeland Security. Id. § 3(g). The suspension of entry in Section 3(c)
9 does not apply to lawful permanent residents of the United States. See Feb. 1, 2017 10
Memorandum (Exhibit A). 11
The Executive Order also suspends the U.S. Refugee Admissions Program for 120 days, 12
13 while the Secretary of State (in conjunction with other Executive Branch officials) reviews “the

14 USRAP application and adjudication process to determine what additional procedures should be

15 taken to ensure that those approved for refugee admission do not pose a threat to the security and
16 welfare of the United States,” and then “implement[s] such additional procedures.” Executive
17 Order § 5(a). Upon resumption of the refugee program—i.e., no sooner than 120 days after
18 19 issuance of the Executive Order—the Order directs the Secretary of State to “make changes, to
20 the extent permitted by law, to prioritize refugee claims made by individuals on the basis of

21 religious-based persecution, provided that the religion of the individual is a minority religion in

22 the individual’s country of nationality.” Id. § 5(b). Again, during the 120-day suspension of the

23 refugee program, the Executive Order allows the Secretaries of State and Homeland Security to
24 permit entry of individual refugees on a case-by-case basis. Id. § 5(e).
25

26

Finally, notwithstanding the general resumption of the refugee program after 120 days,

27 the Executive Order directs, pursuant to Section 212(f), a suspension of entry of nationals of

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 7 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 Syria as refugees based upon the President’s finding that such entry “is detrimental to the interests

2 of the United States.” Id. § 5(c). Such suspension will continue until such time as the President

3 determines “that sufficient changes have been made to the USRAP to ensure that admission of
4 Syrian refugees is consistent with the national interest.” Id.
5

6

STANDARD OF REVIEW

7

A temporary restraining order is “an extraordinary and drastic remedy[.]” Munaf v.

8 Geren, 553 U.S. 674, 689 (2008). A party seeking such relief “must establish that [it] is likely
9 to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary 10
relief, that the balance of equities tips in [its] favor, and that [a temporary restraining order] is in 11
the public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008). Further, injunctive relief that would 12
13 “deeply intrude[] into the core concerns of the executive branch”—such as foreign affairs and

14 national security—may be awarded only where the plaintiff “make[s] an extraordinarily strong

15 showing” as to each element. Adams v. Vance, 570 F.2d 950, 954-55 (D.C. Cir. 1978); see
16 Winter, 555 U.S. at 32-33.
17 The State raises only facial challenges to the Executive Order, which are “the most
18 19 difficult challenge[s] to mount successfully.” United States v. Salerno, 481 U.S. 739, 745 (1987).
20 To demonstrate that it is likely to prevail on the merits, the State must show more than that the

21 Executive Order “might operate unconstitutionally under some conceivable set of

22 circumstances.” Id. Instead, the State bears the “heavy burden” of “establish[ing] that no set of
23 circumstances exist under which the [Executive Order] would be valid.” Id.; see also Puente
24 Arizona v. Arpaio, 821 F.3d 1098, 1104 (9th Cir. 2016).
25

26

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 8 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1

ARGUMENT

2

I.

THE STATE LACKS STANDING TO INVOKE THE COURT’S JURISDICTION

3 The State of Washington pursues two theories of standing. First, it purports to sue on its
4 own behalf, alleging various injuries to its “proprietary interests.” Pl.’s Supp. Br. at 2-3 (ECF
5

6 No. 17). Second, it seeks to bring a parens patriae action on behalf of its residents. Id. at 3-5.

7 Neither theory satisfies the State’s burden to demonstrate standing.

8

A. The State Lacks Standing on Its Own Behalf

9

In some circumstances, a state may have standing to challenge federal action that

10 threatens its own distinct interests. As with any other party, however, the harm to the state’s
11

interests must be “an invasion of a legally protected interest” that is “concrete and particularized” 12

13 and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan v. Defs. of Wildlife, 504 U.S.

14 555, 560-61 (1992). A state suffers a cognizable injury when, for example, its physical territory

15 such as its “coastal land” is harmed. See Massachusetts v. EPA, 549 U.S. 497, 522-23 (2007).
16 A state likewise may challenge a measure commanding the state itself to act, see New York v.
17 United States, 505 U.S. 144 (1992) (standing to challenge federal law requiring State to take title
18 19 to nuclear waste or enact federally-approved regulations), or that prohibits it from acting, see
20 Oregon v. Mitchell, 400 U.S. 112 (1970) (standing to challenge federal law barring literacy-test

21 or durational-residency requirements in elections and requiring State to enfranchise 18-year-

22 olds).
23 The State’s allegations of harm here are insufficient to establish Article III standing.
24 Most fundamentally, the State’s allegations of standing rely on downstream, incidental effects
25
26 stemming from the Federal Government’s regulation of immigration as to third-party aliens. The

27 State has no legally cognizable interest in ensuring that the Federal Government issue any

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 9 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 particular alien any particular visa or admit any particular alien into the United States. The

2 State’s conception of standing miscomprehends the Nation’s constitutional structure: under our
3 federal system of separate sovereigns, a State has no legally protected interest in avoiding indirect
4 and incidental consequences (allegedly) flowing from the United States’ regulation of
5
6 individuals’ conduct pursuant to the powers vested in the Federal Government by the

7 Constitution. And it would be especially inconsistent with the constitutional structure to allow

8 such claims to proceed when they involve immigration, which is a subject uniquely committed
9 to the Federal Government, and in which the State has no role. See Arizona v. United States, 132 10
S. Ct. 2492, 2502 (2012) (“The federal power to determine immigration policy is well settled.”). 11
Thus, the State’s incidental, indirect injuries from federal immigration policies simply cannot 12
13 establish standing here.

14

Even so, the State’s alleged harms are neither concrete nor particularized. The State first

15 asserts that it will “lose . . . tax revenue” from tourists who, absent the Executive Order, would
16 visit the State and purchase goods and services there. Pl.’s Supp. Br. at 2; Decl. of Kathy Oline,
17 ECF No. 17-1. But allegations of a reduction in a State’s tax revenues (particularly where, as
18 19 here, there is no “direct link between the state’s status as a collector and recipient of revenues
20 and the . . . action being challenged”) is a “generalized grievance about the conduct of

21 government,” not the sort of particularized injury necessary to establish standing. Pennsylvania

22 v. Kleppe, 533 F.2d 668, 672 (D.C. Cir. 1976) (rejecting similar allegations by analogy to
23 taxpayer standing cases); see Florida v. Mellon, 273 U.S. 12, 17-18 (1927) (rejecting standing
24 despite Florida’s allegation that challenged federal law would induce citizens to remove property
25
26 from the state thereby diminishing the state’s tax revenues); Iowa ex rel. Miller v. Block, 771

27 F.2d 347, 353 (8th Cir. 1985) (concluding state lacked standing despite claim that challenged

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 10 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 action would “forc[e] unemployment up and state tax revenues down”). Were the Court to find

2 standing based on incidental impacts to the State’s treasury without any direct link to the action
3 challenged, virtually any change in federal policy could prompt an Article III dispute, which is
4 an approach to standing the Supreme Court decisively has rejected. See DaimlerChrysler Corp.
5 6 v. Cuno, 547 U.S. 332, 341 (2006); Kleppe, 533 F.2d at 672.5

7

The State next claims that the “mission” of various state universities and “their

8 attractiveness to international students” may be “damage[d]” because some students and faculty
9 members may be prevented from attending the universities or from travelling abroad for research. 10
Pl.’s Supp. Br. at 3. This argument fails for two reasons. First, most (if not all) of the students 11
and faculty members the State identifies are not actually prohibited from entering the United 12 13 States, and others’ alleged difficulties are hypothetical or speculative.6 That is particularly true

14 given the waiver authority granted to the Secretaries of Homeland Security and State under the

15 Executive Order when entry of an alien would be in the national interest. See Executive Order
16 §§ 3(g), 5(e). And second, even if the State could piggyback on these individuals to establish an
17 injury to the State itself, the State’s assertions of injury are too abstract. See Whitmore v.
18 19 Arkansas, 495 U.S. 149, 155 (1990). Vague allegations about the universities’ reputations and
20 ability to attract students are not sufficiently concrete to show standing. The State’s reliance on

21 Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480 (9th Cir. 1995), see Pl.’s Supp. Br. at 3 n.3,

22 is inapposite. The school’s injury in that case was that it had been terminated from the 23

24

5 City of Sausalito v. O’Neill, 386 F.3d 1186 (9th Cir. 2004), see Pl.’s Supp. Br. at 2, is not to the contrary. In that

25

case, there was a direct link between the challenged construction project and the alleged injury to the adjacent City’s natural resources, aesthetic, and economy. See O’Neill, 386 F.3d at 1199.

26

6 See, e.g., Second Riedinger Decl. ¶¶ 3-7, ECF No. 17-2 (allegations about lawful permanent residents, who are

not impacted by the Executive Order); Boesenberg Decl. ¶ 6, ECF No. 17-3 (same); Second Riedinger Decl. ¶ 8

27

(asserting that certain countries may “ban . . . U.S. travelers” in response to the Executive Order); Second Chaudhry

Decl. ¶ 8, ECF No. 17-4 (alleging one faculty member may not be able to return to the university at a future date).
28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 11 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 defendant’s loan guarantee program, id. at 1483, not that its reputation or attractiveness to

2 students had been incidentally diminished by some action that did not directly affect the school.
3 Additionally, the State asserts that it “expects” the Executive Order will have effects on
4 its agency recruitment efforts and its child welfare system. Pl.’s Supp. Br. at 3 n.4. But the State
5
6 concedes that it cannot identify any State agency employees that are currently affected by the

7 Executive Order, see Schumacher Decl. ¶ 7, ECF No. 17-5, nor any specific and actual impact

8 on its child welfare system, see Strus Decl., ECF No. 17-6. Speculation about possible future
9 events does not constitute an injury in fact. Whitmore, 495 U.S. at 158. 10
Finally, the State cites no case recognizing the standing of a state government to bring an 11
Establishment Clause challenge, and it is not clear how a state can suffer “spiritual or 12
13 psychological harm” or have “religious beliefs” that can be “stigmatized.” Catholic League for

14 Religious & Civil Rights v. City & Cty. of San Francisco, 624 F.3d 1043, 1051-52 (9th Cir. 2010).

15

B. The State Cannot Bring a Parens Patriae Action Here

16 The State cannot convert its political dispute with the Federal Government into a legal
17 claim through the vehicle of a parens patriae suit brought on behalf of its residents. The Supreme
18
19 Court made clear more than eighty years ago that a state cannot bring a parens patriae action

20 against federal defendants. See Massachusetts v. Mellon, 262 U.S. at 485-86. In dismissing an

21 action brought by Massachusetts to exempt its citizens from a federal statute designed to “protect

22 the health of mothers and infants,” the Court explained that the citizens of a state “are also citizens
23 of the United States,” and therefore “[i]t cannot be conceded that a state, as parens patriae, may
24 institute judicial proceedings to protect citizens of the United States from the operation of the
25
26 statutes thereof.” Id. at 479, 485. “[I]t is no part of [a state’s] duty or power to enforce [its

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 12 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 citizens’] rights in respect of their relations with the federal government;” “it is the United States,

2 and not the state, which represents [its citizens] as parens patriae.” Id. at 485-86.7 3
Contrary to the State’s assertion, the “special solicitude” for states referred to in 4
Massachusetts v. EPA, 549 U.S. 497, 520 (2007), did not “eradicate[]” the bar on parens patriae 5 6 actions against the Federal Government, Pl.’s Supp. Br. at 4 n.5. Indeed, Massachusetts
7 recognized that Mellon “prohibits” allowing a state “‘to protect her citizens from the operation

8 of federal statutes.’” Massachusetts, 549 U.S. at 520 n.17; see also Del. Dep’t of Nat. Res. &
9 Envtl. Control v. FERC, 558 F.3d 575, 579 n.6 (D.C. Cir. 2009) (Massachusetts “does not 10
eliminate the state [plaintiff’s] obligation to establish a concrete injury, as Justice Stevens’ 11
opinion amply indicates”). The special solicitude afforded in Massachusetts was based on the 12
13 “unique circumstances” of that case, Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563

14 F.3d 466, 476 (D.C. Cir. 2009), wherein Massachusetts sought to assert its own rights to ensure

15 the protection of the land and air within its “sovereign territory,” which was protected by a special
16 “procedural right.” 549 U.S. at 519-20; see id. at 522-23 (explaining that Massachusetts “owns
17 a substantial portion of the state’s coastal property” that was harmed by EPA’s inaction). Here,
18 19 the State’s interest in protecting its territorial sovereignty is not at issue, and the State has
20 identified no other injury to any legally protected rights. Moreover, Congress has not created

21 any protection for states against the incidental impacts asserted by the State here.8 Because a 22

23

7 The Supreme Court has repeatedly applied this principle since Mellon to dismiss actions brought by a state as

24

parens patriae against federal defendants. See Florida, 273 U.S. at 18 (relying on Mellon to dismiss Florida’s challenge to a federal inheritance tax based on alleged injury to its citizens); South Carolina v. Katzenbach, 383 U.S.

25

301, 324 (1966) (concluding South Carolina lacked standing as parens patriae to invoke the Due Process Clause or the Bill of Attainder Clause against the Federal Government); see also Snapp, 458 U.S. at 610 n.16 (“A State does

26

not have standing as parens patriae to bring an action against the Federal Government.”).

8 The generic cause of action under the Administrative Procedure Act, 5 U.S.C. § 702, is no substitute for the

27

necessary conditions for standing in Massachusetts. See Pl.’s Supp. Br. at 4 n.5. It would have made little sense for

the Supreme Court to attach “critical importance” to Congress’s creation of a particular procedural right,

28

Massachusetts, 549 U.S. at 516, if the APA already made that right available generally. The State’s reliance on the

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 13 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 state cannot bring a parens patriae suit against federal defendants, the State lacks standing and
2 thus the Court should deny the State’s motion for lack of jurisdiction. 3
II. THE STATE DOES NOT DEMONSTRATE IT IS LIKELY TO PREVAIL ON THE MERITS 4
The State falls far short of carrying its “heavy burden” to demonstrate that it is likely to 5 6 prevail on the merits of its facial challenge by “establish[ing] that no set of circumstances exist
7 under which the [Executive Order] would be valid.” Salerno, 481 U.S. at 745. To the contrary,

8 the Executive Order fits within the express delegation of authority in Section 212(f). The State’s

9 constitutional and statutory claims additionally fail pursuant to their individual elements.
10 A. The Executive Order Is a Valid Exercise of Congress’ Broad Delegation of
11
Authority to the President, and His Own Constitutional Powers 12

13

The Executive Order was issued pursuant to Congress’ broad delegation of authority to

14 the President to “suspend the entry of all aliens or any class of aliens as immigrants or

15 nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
16 8 U.S.C. § 1182(f). The express delegation from Congress, coupled with the President’s own
17 Article II powers over foreign affairs and national security, mean that the President’s “authority
18 19 is at its maximum, for it includes all that he possesses in his own right plus all that Congress can
20 delegate.’” Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083-84 (2015) (quoting

21 Youngstown, 343 U.S. at 635 (Jackson, J., concurring)).

22

Indeed, in the immigration context specifically, “[t]he Supreme Court has ‘long

23 recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised
24 by the Government’s political departments largely immune from judicial control.’” Cardenas v.
25

26 United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (quoting Fiallo v. Bell, 430 U.S. 787, 792

27

Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1, also is unavailing, as that statute only provides a cause

28

of action for persons that exercise religion.

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 14 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 (1977)). “Congress has ‘plenary power to make rules for the admission of aliens and to exclude

2 those who possess those characteristics which Congress has forbidden.’” Cardenas, 826 F.3d at 3
1169 (quoting Kleindienst v. Mandel, 408 U.S. 753, 769 (1972)). “When Congress delegates this 4
plenary power to the Executive, the Executive’s decisions are likewise generally shielded from 5 6 administrative or judicial review.” Cardenas, 826 F.3d at 1169. And “[i]n the exercise of its
7 broad power over naturalization and immigration, Congress regularly makes rules that would be

8 unacceptable if applied to citizens.” Mathews v. Diaz, 426 U.S. 67, 79-80 (1976).9

9

Here, the President’s Executive Order falls squarely within the express delegation of

10 power granted him under Section 212(f) of the INA, codified at 8 U.S.C. § 1182(f). “[T]hat
11

statute specifically grants the President, where it is in the national interest to do so, the extreme 12

13 power to prevent the entry of any alien or groups of aliens into this country as well as the lesser

14 power to grant entry to such person or persons with any restriction on their entry as he may deem

15 to be appropriate.” Mow Sun Wong v. Campbell, 626 F.2d 739, 744 n.9 (9th Cir. 1980); Haitian

16 Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1507 (11th Cir. 1992) (“8 U.S.C. § 1182(f) clearly

17
grants the President broad discretionary authority to control the entry of aliens into the United 18

19

States.”).10

20

Presidents, moreover, repeatedly have exercised authority under Section 212(f) to

21 suspend entry of certain aliens or classes of aliens, and at least twice have drawn distinctions 22

23

24

9 As an example of the judicial deference in this area, under the long-established doctrine of consular nonreviewability, a non-resident alien outside the United States has no right to judicial review of a consular officer’s

25

denial of a visa. See Capistrano v. Dep’t of State, 267 F. App’x 593, 594 (9th Cir. 2008) (“The doctrine of consular nonreviewability predates the founding of our Republic” and “prevents [courts] from reviewing decisions reached

26

by consular officials regarding the entry of visa applicants.”).

10 In several other statutory provisions, Congress delegated authority to the Secretaries of Homeland Security and

27

State to, in their sole discretion, revoke visas or visa petitions. See 8 U.S.C. §§ 1155, 1201(i); see also Bernardo ex

rel. M & K Eng’g, Inc. v. Johnson, 814 F.3d 481, 484 (1st Cir. 2016) (describing the unreviewability of such

28

revocations).

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U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 based on nationality. See Background, Section II.A. For example, in 1986, the President invoked
2 Section 212(f) to suspend entry of Cuban nationals as immigrants into the United States, and in 3
1996, the President did something similar for Sudanese government officials. And with respect 4
to Executive Order 12,807—which, among other things, suspended entry of undocumented aliens 5 6 by sea—the Supreme Court found “[i]t is perfectly clear that 8 U.S.C. § 1182(f) . . . grants the
7 President ample power to establish a naval blockade that would simply deny illegal Haitian
8 migrants the ability to disembark on our shores.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S.
9 155, 164 n.13, 187 (1993) (emphasis added). There can be little doubt, therefore, that 8 U.S.C. 10
§ 1182(f) authorizes the President to suspend the entry of classes of immigrants on the basis of 11
nationality where, as here, the President has determined that their entry would be “detrimental to 12 13 the interests of the United States.” And it is thus untenable for the State to contend that, for
14 countries that present a national-security risk to the United States—as judged by Congress, the
15 State Department, and DHS—the President lacks the authority to pause the entry of aliens from 16
those countries. 17
Indeed, courts repeatedly have confirmed that “[d]istinctions on the basis of nationality 18 19 may be drawn in the immigration field by the Congress or the Executive.” Narenji v. Civiletti,
20 617 F.2d 745, 747 (D.C. Cir. 1979). “In view of the Supreme Court’s repeated emphasis on the
21 concurrent nature of executive and legislative power in this area and the sweeping congressional
22 delegations of discretionary authority to the Executive under the INA, there is little question that 23
the Executive has the power to draw distinctions among aliens on the basis of nationality.” Jean 24
v. Nelson, 727 F.2d 957, 978 n.30 (11th Cir. 1984) (en banc), aff’d, 472 U.S. 846 (1985). 25 26 “[C]lassifications on the basis of nationality are frequently unavoidable in immigration matters,”
27
28

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20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 including because “the very concept of ‘alien’ is a nationality-based classification.” Rajah v.

2 Mukasey, 544 F.3d 427, 435 (2d Cir. 2008).

3 Despite this wealth of authority, the State asserts that the President’s authority under

4 Section 212(f) is limited by 8 U.S.C. § 1152(a)(1)(A), another provision of the INA stating that,
5

6

with certain exceptions,11 “no person shall receive any preference or priority or be discriminated

7 against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place

8 of birth, or place of residence.” See TRO Mot. at 19-21. The State is wrong. First, as an initial
9 matter, this provision’s reach is limited to only the “issuance of an immigrant visa”—meaning 10
that it does not apply to nonimmigrant visas or to refugees (who generally do not enter the United 11
States with a visa), and also expressly does not extend to procedures for processing visa 12
13 applications. Indeed, § 1152(a)(1)(B) clarifies that subsection (A) is not to be “construed to limit

14 the authority of the Secretary of State to determine the procedures for the processing of immigrant

15 visa applications or the locations where such applications will be processed.” This clarification
16 suggests that the Executive Order, in part or in whole, may not be covered by the restrictions of
17 subsection (A) because the Executive Order governs the procedures for pausing then resuming
18 19 visa applications. See, e.g., Executive Order §§ 3(a), 5(a). Moreover, this provision does not
20 purport to prohibit preference, priority, or discrimination on the basis of religion, so it would

21 provide no benefit to the State here under one of the State’s theories of the case. See TRO Mot.
22 at 10 (“There is little doubt that the Executive Order is prompted by animus to those of the Islamic 23
faith[.]”). By the statute’s plain terms, then, the provision could have only limited application to 24
the State’s claims here. 25

26

27

11 These exceptions include most family-based, employment-based, and special immigrant visa categories. 8 U.S.C.

28

§§ 1101(a)(27), 1151(b)(2)(A)(i), 1152(b), 1153.

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 17 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

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20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1

More fundamentally, however, the State misreads 8 U.S.C. § 1152(a)(1)(A) as

2 constraining the broad delegation of authority to the President in Section 212(f) of the Act. “[I]t
3 is a well established axiom of statutory construction that, whenever possible, a court should
4 interpret two seemingly inconsistent statutes to avoid a potential conflict.” California ex rel.
5
6 Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1012 (9th Cir. 2000).

7 Likewise, it is a “well established canon of statutory interpretation . . . that the specific governs

8 the general.” RadLAX Gateway Hotel v. Amalgamated Bank, 132 S. Ct. 2065, 2070-71 (2012).

9

In light of these principles, Section 212(f) is easily reconciled with § 1152(a)(1)(A): the

10 latter sets forth the general default rule that applies in the absence of action by the President,
11

whereas Section 212(f) governs the specific instance in which the President proclaims that entry 12

13 of a “class of aliens” would be “detrimental to the interests of the United States.” Here, as the

14 challenged Executive Order involves “detrimental” findings, Section 212(f) controls. That is

15 precisely why (as discussed above) prior Presidents have drawn nationality-based distinctions
16 when exercising their authority under Section 212(f). And it is likewise why the 2015
17 Amendment to the INA, as implemented by the Executive Branch over the past year, has drawn
18 19 the exact same nationality-based distinctions as the Executive Order. Indeed, under the State’s
20 view, the United States could not suspend entry of nationals of a country with which the United

21 States is at war. The INA plainly does not require that result.

22

The placement of the anti-discrimination rule within Section 1152 further indicates that

23 the rule is not intended to curb the President’s authority under Section 212(f) to suspend or
24 impose restrictions upon entry. Section 1152 generally establishes a uniform annual numerical
25

26 limit on immigrant visas for nationals of each foreign country. Had Congress intended to enact

27 a general bar against nationality-based distinctions, it would have enacted such a bar as a general

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 18 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

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20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 provision of the INA, rather than as a subpart of a subsection speaking to the implementation of

2 nationality-based numerical limitations for the issuance of immigrant visas.
3 Finally, the State mischaracterizes the Executive Order as “tak[ing] us back to a period
4 in our history when distinctions based on national origin were accepted . . . rather than outlawed.”
5
6 TRO Mot. at 20. As an initial matter, the State repeatedly characterizes the Executive Order as

7 discriminating on the basis of “national origin.” See TRO Mot. at 1, 6. But the Executive Order

8 does not distinguish on the basis of national origin insofar as that term implicates ethnic heritage;
9 rather, discrimination on the basis of nationality implicates whether “a person ow[es] permanent 10
allegiance to a state.” 8 U.S.C. § 1101(a)(21) (defining “national”). 11
In any event, in 2015, Congress amended the INA to single out nationals of Iraq, Syria, 12
13 and other to-be-designated countries for exclusion from the Visa Waiver Program. See

14 Background, Section II.B. It is that same group of countries that is covered by Section 3(c) of

15 the Executive Order, which expressly cross-references 8 U.S.C. § 1187(a)(12). And Section 5(c)
16 of the Executive Order applies to nationals of Syria, one of the countries Congress expressly
17 identified. Accordingly, the President has joined with Congress in selecting the seven countries
18 19 whose nationals warrant different treatment on the basis of national security and foreign policy
20 concerns.

21

B. This Court Cannot, and Need Not, Review the President’s National Security

22

Determinations Underlying the Executive Order

23 The State asks this Court to not only disregard case law, Congress’ express delegation of
24 authority to the President, and the President’s own Article II powers, but indeed, to substitute the
25

26 Court’s own judgment regarding what is in the national security and foreign policy interests of

27 the United States. See, e.g., TRO Mot. at 8. This Court should soundly reject that invitation, for

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 19 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

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20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 as courts repeatedly have recognized, these areas are within the exclusive domain of the political
2 branches of our government. 3
As a statutory matter, Section 212(f), by its plain terms, vests complete discretion in the 4
President to determine whether “the entry of any aliens or of any class of aliens into the United 5 6 States would be detrimental to the interests of the United States,” for the period “as he shall deem
7 necessary,” and to impose such conditions of entry as “he may deem appropriate.” 8 U.S.C. §
8 1182(f). The statute does not require the President to state any basis for such a finding, nor does
9 it require ratification of such a finding by any other entity. Instead, it reflects Congress’ 10
considered judgment that these determinations should be vested exclusively in the President. 11
Critically, the State cites no instance where any court has reviewed presidential findings 12 13 under Section 212(f) regarding what is detrimental to the interests of the United States, nor does
14 the State explain how such an inquiry would be judicially manageable. To the contrary, one
15 court analyzing a presidential exercise of authority under 8 U.S.C. § 1182(f) concluded that 16
“because exercise of this discretion is not limited to circumstances defined in the statute, but 17
rather is geared to Executive ‘find[ings]’ and what is ‘deem[ed]’ necessary or appropriate, the 18 19 statute provides no discernable standards by which this court can review the challenged actions
20 under the APA.” Haitian Refugee Ctr., Inc. v. Baker, 789 F. Supp. 1552, 1575-76 (S.D. Fla.
21 1991); see also Webster v. Doe, 486 U.S. 592, 594, 600-01 (1988) (holding that similar statutory
22 language vested the Director of Central Intelligence with complete discretion over employee 23
discharges, and thus judicial review was precluded). 24
The State here asks the Court to evaluate whether the President’s Executive Order 25 26 achieves its stated purposes. See TRO Mot. at 9 (arguing that the Executive Order is unlawful
27 because “there is no ‘fit’ between the rationales advanced to support the Executive Order and the
28

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20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 means used to further those rationales”). But that would require the Court inappropriately to

2 second-guess the underlying finding that Congress has tasked the President with making, and
3 which lies at the heartland of his constitutional authority regarding foreign affairs, national
4 security, and immigration. See Mandel, 408 U.S. at 765 (“[T]he power to exclude aliens is
5
6 inherent in sovereignty, necessary for maintaining normal international relations and defending

7 the country against foreign encroachments and dangers[.]”); see also, e.g., Harisiades v.

8 Shaughnessy, 342 U.S. 580, 588-89 (1952) (“[A]ny policy toward aliens is vitally and intricately
9 interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war 10
power, and the maintenance of a republican form of government.”); Knauff, 338 U.S. at 542; 11
Mow Sun Wong, 626 F.2d at 743. It is thus well-established that courts cannot evaluate the 12
13 President’s national security and foreign affairs judgments, especially in the immigration context.

14 See Knauff, 338 U.S. at 543 (“[I]t is not within the province of any court, unless expressly

15 authorized by law, to review the determination of the political branch of the Government to
16 exclude a given alien.”); INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (“[J]udicial deference
17 to the Executive Branch is especially appropriate in the immigration context where officials
18 19 ‘exercise especially sensitive political functions that implicate questions of foreign relations.’”);
20 see also Dep’t of Navy v. Egan, 484 U.S. 518, 529-30 (1988); Al-Haramain Islamic Found., Inc.

21 v. Bush, 507 F.3d 1190, 1203 (9th Cir. 2007).

22

It is simply not possible for the Court here to evaluate the President’s Executive Order

23 without passing judgment on the President’s national security and foreign affairs determinations.
24 See, e.g., TRO Mot. at 11 (arguing that the Executive Order is unlawful because there is “no basis
25

26 to conclude that existing screening procedures are uniquely failing as to individuals from the

27 listed countries or as to refugees”). The Constitution vests the President with the duty of

28

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20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 protecting our Nation’s security, and Congress has specifically empowered the President to

2 suspend the entry of categories of aliens if he finds that their entry would be detrimental to the
3 national interest. There is accordingly no basis for the Judiciary to second-guess the President’s
4 determinations in that regard. See Al Haramain Islamic Found., Inc. v. Dep’t of Treasury, 686
5
6 F.3d 965, 980 (9th Cir. 2012) (stating that the court “owe[s] unique deference to the executive

7 branch’s determination that we face ‘an unusual and extraordinary threat to the national security’

8 of the United States” (quoting an Executive Order)); Harisiades, 342 U.S. at 597 (Frankfurter,

9 J., concurring) (noting that immigration policies have sometimes been “departures . . . from the
10 best traditions of this country” and “may be deemed to offend American traditions,” but “the
11 place to resist unwise or cruel legislation touching aliens is the Congress, not this Court”).
12

13

Finally, the State also argues that the President’s stated rationale under Section 212(f)

14 was pretextual and, instead, that the Executive Order was “prompted by animus to those of the

15 Islamic faith.” TRO Mot. at 10. But any such inquiry would be directly contrary to the Supreme
16 Court’s decision in Kleindienst v. Mandel, 408 US. 753 (1972), which held that “when the
17 Executive exercises” its delegated plenary power over immigration “on the basis of a facially
18 19 legitimate and bona fide reason, the courts will [not] look behind the exercise of that
20 discretion[.]” Id. at 770. Here, the Executive Order undeniably states a facially legitimate and

21 bona fide reason—protecting against terrorism—which is sufficient to end the matter. Cf. Kerry

22 v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring) (noting that Mandel’s “reasoning
23 has particular force in the area of national security”). Accordingly, the State’s references to
24 statements outside the four corners of the Executive Order are not legally pertinent. The State,
25
26 moreover, creates a constitutional separation-of-powers problem—between the Judiciary and the

27 President, and between a state and the Federal Government—to the extent that this Court is being

28

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20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 urged to allow the State to use Article III judicial process to attempt to divine the President’s

2 purported subjective motives in issuing the Executive Order.12 The State cites no precedent for 3
such an inquiry by the Judiciary of the President. Cf. United States v. O’Brien, 391 U.S. 367, 4
383-84 (1968) (holding that an inquiry into the subjective motives of members of Congress is a 5 6 “hazardous matter” and that courts “will not strike down an otherwise constitutional statute on
7 the basis of an alleged illicit legislative motive”).

8

C. The State’s Facial Constitutional Challenges Fail

9

Aside from its statutory argument under the INA, the State contends that the Executive

10 Order is facially unconstitutional under the Fifth Amendment’s equal protection and procedural
11

due process doctrines, and under the First Amendment’s Establishment Clause. TRO Mot. at 512

13 19. These claims fail for reasons in addition to those discussed above.

14

1. An overarching and insurmountable hurdle for the State’s claims of facial

15 unconstitutionality is that the State has the burden to show there is no constitutionally valid
16 application of the Executive Order. See Salerno, 481 U.S. at 745; United States v. Mujahid, 799
17 F.3d 1228, 1233 (9th Cir. 2015). That showing is improbable—indeed, impossible—because it
18 19 is clear that valid applications exist, at an absolute minimum as to unadmitted and nonresident
20 aliens. See Mandel, 408 U.S. at 762 (“It is clear that Mandel personally, as an unadmitted and

21 nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or
22 otherwise.”); Plasencia, 459 U.S. at 32 (“This Court has long held that an alien seeking initial 23
admission to the United States requests a privilege and has no constitutional rights regarding his 24
application, for the power to admit or exclude aliens is a sovereign prerogative.”); United States 25

26

12 In addition, it is well-settled that courts have no jurisdiction “to enjoin the President in the performance of his

27

official duties.” Mississippi v. Johnson, 71 U.S. 475, 501 (1866). Accordingly, the President cannot be the subject

of any injunctive order. Id.; see Franklin v. Massachusetts, 505 U.S. 788, 826 (1992) (Scalia, J., concurring in part

28

and concurring in judgment).

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U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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1 v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (“[W]e have rejected the claim that aliens are

2 entitled to Fifth Amendment rights outside the sovereign territory of the United States.”). The 3
State does not dispute that the Executive Order is constitutional as applied to this category of 4
unadmitted and nonresident aliens who have no constitutional right to entry. Whatever claims 5 6 may exist in hypothetical individual cases, therefore, are irrelevant because the State must—but
7 cannot—demonstrate that all (or even most) applications of the Executive Order are

8 unconstitutional.13

9

The State’s arguments rest heavily on the Executive Order’s purported application to

10 lawful permanent residents. See, e.g., TRO Mot. at 1 (contending that the Executive Order
11

“block[s] longtime legal permanent residents from returning to this country”). But as is now 12

13 clear, the Executive Order does not apply to such individuals. See Feb. 1, 2017 Memorandum

14 (Exhibit A).

15

2. A further problem with the State’s equal protection and procedural due process claims

16 is that they both arise under the Fifth Amendment’s Due Process Clause, but the State is ineligible
17 to assert a Fifth Amendment claim. The Fifth Amendment provides that “[n]o person shall . . .
18
19 be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.

20 “The word ‘person’ in the context of the Due Process Clause of the Fifth Amendment cannot . . .

21 be expanded to encompass the States of the Union, and to our knowledge this has never been
22 done by any court.” Katzenbach, 383 U.S. at 323-24; see also Premo v. Martin, 119 F.3d 764, 23
771 (9th Cir. 1997) (“Because the State is not a ‘person’ for the purposes of the Fifth Amendment, 24
the State’s reliance on the Due Process Clause was misplaced.”). “Nor does a State have standing 25 26 as the parent of its citizens to invoke these constitutional provisions against the Federal

27

13

With respect to hypothetical individual cases that may arise, the Executive Order contains an overarching

28

direction that “[t]his order shall be implemented consistent with applicable law.” Executive Order § 11(b).

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 24 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

CCaasese12:1:177-c-vc-v0-00315431-T-JCLBR DDooccuummeenntt2550-5 FFileiledd0022/0/27/1/177 PPaaggee2278oof 3f 345

1 Government, the ultimate parens patriae of every American citizen.” Katzenbach, 383 U.S. at

2 324. This defect is also fatal to the State’s equal protection and due process claims. 3
3. The State’s claim under the Establishment Clause—which is limited to Section 5(b) 4
of the Executive Order—is likewise meritless. See TRO Mot. at 12. The State argues that 5 6 Section 5(b) discriminates based on religion, because it “give[s] preference to Christian refugees
7 while disadvantaging Muslim refugees.” TRO Mot. at 7. That is wrong. Notably, Section 5(b)

8 does not take effect for at least 120 days (i.e., “Upon the resumption of USRAP admissions”),
9 and thus the State cannot yet know how it will be implemented. The State’s Establishment Clause 10
claim therefore is not ripe. See Addington v. U.S. Airline Pilots Ass’n, 606 F.3d 1174, 1179 (9th 11
Cir. 2010) (“A question is fit for decision when it can be decided without considering ‘contingent 12 13 future events that may or may not occur as anticipated, or indeed may not occur at all.’”).14

14

Even if the claim were ripe, moreover, Section 5(b) is lawful. That Section applies to all

15 USRAP admissions—not just admissions for nationals of the seven countries of concern—so it
16 does not exclusively “tilt the scales in favor of Christian refugees at the expense of Muslims.”
17 TRO Mot. at 12. Moreover, Section 5(b) merely provides an accommodation to minority
18 19 religions within each country participating in the refugee program. That accommodation makes
20 eminent sense, because members of minority religions are more likely to face persecution. Such

21 accommodations do not violate the Establishment Clause. Cutter v. Wilkinson, 544 U.S. 709, 22 713 (2005) (“‘[T]here is room for play in the joints between the Free Exercise and Establishment 23

24

25

14 There is also an interim provision, Section 5(e), which authorizes the Secretaries of State and Homeland Security

26

to admit refugees on a case-by-case basis, with one factor (of several) being religious persecution as a minority religion. The State does not mention this interim provision in its TRO motion, but its proposed order seeks to enjoin

this section “to the extent Section 5(e) purports to prioritize only the refugee claims of certain religious minorities.”

27

ECF No. 3-1 at 3, ¶ 1(e). Obviously Section 5(e) does not prioritize only claims of religious minorities because that

is only one of several factors expressly listed, and thus, the State does not appear to be meaningfully challenging

28

this provision.

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 25 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

CCaasese12:1:177-c-vc-v0-00315431-T-JCLBR DDooccuummeenntt2550-5 FFileiledd0022/0/27/1/177 PPaaggee2289oof 3f 345

1 Clauses, allowing the government to accommodate religion beyond free exercise requirements,

2 without offense to the Establishment Clause.’”). Because Section 5(b) is both lawful and not yet

3 subject to challenge, therefore, the State has failed to justify any relief—let alone emergency
4 relief—with respect to this provision.
5

6

III. THE STATE HAS MADE NO SHOWING OF IRREPARABLE HARM

7

The State’s motion for a temporary restraining order also should be denied because the

8 State has not “demonstrate[d]” that it will be “immediate[ly]” and “irreparabl[y]” harmed by the
9 Executive Order if this case proceeds in the normal course. Caribbean Marine Servs. Co. v. 10
Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). The State speculates that its residents might be 11
harmed by the Executive Order, see Pl.’s TRO Mot. at 22, but to obtain a temporary restraining 12
13 order, the State must demonstrate irreparable harm to itself, not merely to “third parties.” Phany

14 Poeng v. United States, 167 F. Supp. 2d 1136, 1142 (S.D. Cal. 2001); see, e.g., Adams v. Freedom

15 Forge Corp., 204 F.3d 475, 487 (3d Cir. 2000) (“[T]he preliminary injunction device should not

16 be exercised unless the moving party shows that it specifically and personally risks irreparable
17 harm.”). Because the State has identified no injury to itself—much less a likely, immediate, and
18
19 irreparable injury—it has not met its burden.

20

Even if the Court could consider purported harms to non-parties, moreover, the State does

21 no more than speculate that amorphous harms may occur at some point in time to unspecified

22 individuals. The State claims that some “workers and students” may be harmed economically or
23 psychologically because they will not be able to travel overseas for work or school, and that
24 businesses’ recruitment efforts may be hampered because they may not be able to hire certain
25
26 aliens. See TRO Mot. at 21. This sort of generalized speculation is a far cry from the concrete

27 evidence of likely immediate and irreparable harm that is necessary to obtain a temporary

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 26 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

CCaasese12:1:177-c-vc-v0-00315431-T-JCLBR DDooccuummeenntt2550-5 FFileiledd0022/0/27/1/177 PPaaggee2390oof 3f 345

1 restraining order. See Winter, 555 U.S. at 22; Caribbean Marine, 844 F.2d at 674; cf. Oregon v.

2 Legal Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009) (noting that the Supreme Court has

3 disapproved of considering “‘abstract questions of wide public significance’” amounting to
4 “‘generalized grievances’”).
5

6

The State’s arguments also fail to acknowledge the limited timeframe relevant to

7 consideration of their request for a temporary restraining order. To obtain such relief, the State

8 must show that irreparable harm will occur in the time prior to a hearing on the preliminary
9 injunction motion. Cf. Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 10
415 U.S. 423, 439 (1974) (“Ex parte temporary restraining orders . . . should be restricted to 11
serving their underlying purpose of preserving the status quo and preventing irreparable harm 12
13 just so long as is necessary to hold a hearing, and no longer.”). Here, even assuming the State’s

14 harms are both cognizable and irreparable (and they are not), those harms will be suffered over

15 the long-term; there is no showing that harm is imminent within the next days or even weeks.
16 Finally, the restrictions on entry in Sections 3(c) and 5(a) of the Executive Order are both
17 subject to exceptions to be applied by the Secretaries of State and Homeland Security on a case-
18 19 by-case basis. See Executive Order §§ 3(g), 5(e). Therefore, none of the purported harms the
20 State identifies will occur unless a particular individual falls within the terms of the Executive

21 Order and cannot obtain an exception under these case-by-case provisions. Because of the

22 availability of this case-by-case review, any allegations of harm to third parties are not irreparable
23 at this time. Cf. Leidseplein Presse, B.V. v. Does, No. C16-5065 (BHS), 2016 WL 337267, at *1
24 (W.D. Wash. Jan. 28, 2016) (denying temporary restraining order based on lack of irreparable
25
26 harm, because “Plaintiff has failed to show that other means of preventing the alleged [harm] are

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 27 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

CCaasese12:1:177-c-vc-v0-00315431-T-JCLBR DDooccuummeenntt2550-5 FFileiledd0022/0/27/1/177 PPaaggee3301oof 3f 345

1 either unavailable or unavailing” and “Plaintiff has failed to submit evidence describing efforts

2 made to explore other available means of preventing” the alleged harm).

3 IV. THE BALANCE OF THE EQUITIES AND THE PUBLIC INTEREST MANDATE AGAINST A
4 TEMPORARY RESTRAINING ORDER
5

6

The State has not demonstrated that any harm to it (and there is none) outweighs the harm

7 that a temporary restraining order would cause the Federal Government, or that “an injunction is

8 in the public interest.” Winter, 555 U.S. at 20. These two factors merge where, as here, the
9 Federal Government is the opposing party. Nken v. Holder, 556 U.S. 418, 435 (2009). Courts 10
have accorded “great weight” to considerations of foreign policy and national security when 11
balancing the interests and equities of the parties. Nat’l Res. Def. Council, Inc. v. Pena, 972 F. 12
13 Supp. 9, 20 (D.D.C. 1997); see Winter, 555 U.S. at 24; Comm. for Nuclear Responsibility, Inc.

14 v. Seaborg, 463 F.2d 796, 798 (D.C. Cir. 1971) (Because of “assertions of potential harm to

15 national security and foreign policy—assertions which [the court] obviously can not appraise—
16 and given the meager state of the record before us, we are constrained to refuse an injunction.”).
17 Moreover, in assessing the public interest, a court must heed “the judgment of Congress,
18 19 deliberately expressed in legislation,” and “the balance that Congress has struck.” United States
20 v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001).

21

These final elements weigh heavily in favor of the Federal Government. The State asks

22 the Court to enjoin an Executive Order that suspends the entry of certain aliens into the United
23 States based on the President’s determination that failing to do so would be detrimental to the
24 interests of the United States, including its national security. The State of Washington disagrees
25
26 with the President’s determination and believes the Executive Order will harm the interests of

27 residents in that state. The Constitution, however, commits “decision-making in the fields of

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 28 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

CCaasese12:1:177-c-vc-v0-00315431-T-JCLBR DDooccuummeenntt2550-5 FFileiledd0022/0/27/1/177 PPaaggee3312oof 3f 345

1 foreign policy and national security . . . to the political branches of government,” Schneider v.

2 Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005), not to the states. And in 8 U.S.C. § 1182(f),
3 Congress expressly authorized the President to do what he has done here based upon a finding,
4 which the President has made here, that “the entry . . . of any class of aliens into the United States
5
6 would be detrimental to the interests of the United States.” It undoubtedly would be contrary to

7 the public interest for this Court to ignore Congress’s judgment that the President should make

8 such determinations, to second-guess the President’s determination, or to override the President’s

9 determination based on purported interests of a single state. See, e.g., Adams, 570 F.2d at 954
10 (vacating preliminary injunction that directed action by the Secretary of State in foreign affairs,
11 which “deeply intrude[d] into the core concerns of the executive branch”).
12

13

Finally, even if the State satisfied the requirements for a temporary restraining order, this

14 Court still would retain its equitable discretion—i.e., the discretion to refrain from issuing relief

15 that would interfere in the Executive Branch’s foreign affairs and national security activities. In
16 an analogous situation, the D.C. Circuit held it would be an abuse of discretion for a court to
17 enter equitable relief against one of the President’s foreign affairs policies: “At least where the
18 19 authority for our interjection into so sensitive a foreign affairs matter as this are statutes no more
20 specifically addressed to such concerns than the Alien Tort Statute and the APA, we think it

21 would be an abuse of our discretion to provide discretionary relief.” Sanchez-Espinoza v.

22 Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985). Similarly here, the Court should not intrude upon
23 the President’s efforts “to ensure that those approved for admission do not intend to harm
24 Americans and that they have no ties to terrorism.” Executive Order § 1.
25

26

27

28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 29 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

CCaasese12:1:177-c-vc-v0-00315431-T-JCLBR DDooccuummeenntt2550-5 FFileiledd0022/0/27/1/177 PPaaggee3323oof 3f 345

1

V. ANY RELIEF ENTERED MUST BE LIMITED IN SCOPE TO THE PLAINTIFF STATE AND TO

2

THE SPECIFIC HARM FOUND

3 Even if the Court were to conclude that the State has satisfied the requirements for a
4 temporary restraining order with respect to some or all of its claims, the Court should not enter
5

6 the “nationwide injunction” the State seeks. TRO Mot. at 23; see Pl.’s Proposed TRO, ECF No.

7 3-1, at 3. “[A]n injunction must be narrowly tailored ‘to affect only those persons over which it

8 has power, and to remedy only the specific harms shown by the plaintiffs, rather than’ to enjoin
9 all possible breaches of the law.” Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004). 10
Thus, courts routinely deny requests for nationwide injunctive relief. See Dep’t of Def. v. 11
Meinhold, 510 U.S. 939 (1993) (staying nationwide injunction insofar as it “grants relief to 12
13 persons other than” named plaintiff); Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105 (9th

14 Cir. 2012) (affirming district court’s refusal to grant nationwide relief).

15

CONCLUSION

16 For the reasons set forth above, the Court should deny the State of Washington’s motion

17
for a temporary restraining order. 18

19 DATED: February 2, 2017

Respectfully submitted,

20

CHAD A. READLER

Acting Assistant Attorney General

21

JOSEPH H. HUNT

22

Director, Federal Programs Branch

23 JOHN R. TYLER

24

Assistant Director, Federal Programs Branch

25

/s/ Michelle R. Bennett

26

MICHELLE R. BENNETT

ERIC SOSKIN

27

DANIEL SCHWEI

ARJUN GARG 28

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 30 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

CCaasese12:1:177-c-vc-v0-00315431-T-JCLBR DDooccuummeenntt2550-5 FFileiledd0022/0/27/1/177 PPaaggee334oof 3f 345

1

Trial Attorneys

U.S. Department of Justice

2

Civil Division, Federal Programs Branch

3

20 Massachusetts Avenue, NW

Washington, DC 20530

4

Tel: (202) 305-8902

Fax: (202) 616-8470

5

Email: michelle.bennett@usdoj.gov

6

arjun.garg@usdoj.gov

7

Attorneys for Defendants

8

9

10

11

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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 31 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

CCaasese12:1:177-c-vc-v0-00315431-T-JCLBR DDooccuummeenntt2550-5 FFileiledd0022/0/27/1/177 PPaaggee3345oof 3f 345

1

CERTIFICATE OF SERVICE

2

3

I hereby certify that on February 2, 2017, I electronically filed the foregoing Opposition

4 to Plaintiff’s Motion for Temporary Restraining Order using the Court’s CM/ECF system,

5 causing a notice of filing to be served upon all counsel of record.

6

7 Dated: February 2, 2017 8

/s/ Michelle R. Bennett MICHELLE R. BENNETT

9

10

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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

Case 1:17-cv-00353-TCB Document 25-6 Filed 02/27/17 Page 1 of 8
EXHIBIT F

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CCaasese12:1:177-c-vc-v0-00315431-T-JCLBR DDooccuummeenntt2552-6 FFileiledd0022/0/237/1/177 PPaaggee78oof f78

Case 1:17-cv-00353-TCB Document 25-7 Filed 02/27/17 Page 1 of 23
EXHIBIT G

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP1aogfe222oPfa2g3eID# 1263

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

TAREQ AQEL MOHAMMED AZIZ, M^

Plaintiffs/Petitioners
V.

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

DONALD TRUMP, President ofthe United States, ^ al..

Defendants/Respondents.

MEMORANDUM OPINION

In this civil action, the Commonwealth ofVirginia ("Commonwealth") alleges that Executive Order 13,769, entitled "Protecting the Nation from Foreign Terrorist Entry into the United States" ("the EO"), violates the First and Fifth Amendments to the United States Constitution, as well as the Immigration and Nationality Act and Religious Freedom Restoration

Act. Before the Court is the Commonwealth's Motion for a Preliminary Injunction, to which defendants have responded and on which oral argumenthas been held. Attachedto the Commonwealth's motionweremultiple exhibits and declarations. The defendants have
responded withno evidence other thanthe EO, which theyhave defended primarily with arguments attacking the Commonwealth's standing to oppose the EO and emphasizing the authority of the president to issue suchan EO. Forthe reasons thatfollow, the Commonwealth's
Motion for a Preliminary Injimction will be granted.

I. FINDINGS OF FACT

A. The Executive Order
On January 20,2017, Donald Trump ("Trump") was inaugurated as the 45th President of the United States. On January 27,2017, he signed the EO. Section 3 of the EO "proclaim[ed]

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP2aogfe232oPfa2g3eID# 1264

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP3aogfe242oPfa2g3eID# 1265

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP4aogfe252oPfa2g3eID# 1266

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP5aogfe262oPfa2g3eID# 1267

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP6aogfe272oPfa2g3eID# 1268

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP7aogfe282oPfa2g3eID# 1269

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP8aogfe292oPfa2g3eID# 1270

Case 1:17C-acsve-010:11176-c-LvM-0B0-3T5C3B-TCDBocDumoceunmt 1e1n1t 25F-i7ledF0il2e/d130/21/727/P17ageP9agoef 2120 Pofa2g3eID# 1271

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP1a0goef1212oPfa2g3eID# 1272

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP1a1goef1222oPfa2g3eID# 1273

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP1a2goef1232oPfa2g3eID# 1274

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP1a3goef1242oPfa2g3eID# 1275

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP1a4goef1252oPfa2g3eID# 1276

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP1a5goef1262oPfa2g3eID# 1277

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP1a6goef1272oPfa2g3eID# 1278

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP1a7goef1282oPfa2g3eID# 1279

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP1a8goef1292oPfa2g3eID# 1280

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP1a9goef2202oPfa2g3eID# 1281

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP2a0goef2212oPfa2g3eID# 1282

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP2a1goef2222oPfa2g3eID# 1283

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n1t 2F5-il7ed F0i2le/1d30/127/27P/1a7geP2a2goef2232oPfa2g3eID# 1284

Case 1:17-cv-00353-TCB Document 25-8 Filed 02/27/17 Page 1 of 3
EXHIBIT H

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n2t 2F5-il8ed F0i2le/1d30/127/27P/1a7geP1aogfe22Poafg3eID# 1285

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

TAREQ AQEL MOHAMMED AZIZ, ^

Petitioners,
V.

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

DONALD TRUMP, President ofthe United States, §t al..

Defendants.

PRELIMINARY INJUNCTION

For the reasons stated in the accompanying Memorandum Opinion,the Court finds that the Conmionwealth of Virginia hasstanding to maintain this civil action andhasestablished that it is likely to prevail onthemerits, thatit is likely to suffer ureparable harm intheabsence ofinjunctive

relief, and that the balance ofthe equities and the public interest favor an injunction. Accordingly, the Commonwealth's Motion for a Preliminary Injunction [Dkt. 23] is GRANTED

and it is hereby
ORDERED that respondents, and all officers, agents, andemployees of the Executive Branch of the United States government, and anyone acting under their authorization or direction

be and are ENJOINED from enforcing § 3(c) ofExecutive Order 13,769 against any person who hasa Virginia residence or is employed byorattends aneducational institution administered bythe Commonwealth of Virginia, and who, as of 5:00 p.m. Eastern Standard Time on Friday, January 27,2017, waslawfully admitted for permanent residency in the United States, heldan immigrant

visa that would entitle the bearer to be lawfully admitted for permanent residencyupon admission to the United States, held a valid student visa (or accompanying family or spousal visa), or held a valid work visa (or accompanying family or spousal visa); and it is further

Case 1:17C-cavs-e0011:176-cLvM-0B0-3T5C3B-TCDBocuDmoecnutm1e1n2t 2F5-il8ed F0i2le/1d30/127/27P/1a7geP2aogfe23Poafg3eID# 1286

 
 Case 1:17-cv-00353-TCB Document 27 Filed 03/09/17 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

)

TAWFEEQ,

)

)

Plaintiff.

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY (“DHS”); JOHN F. KELLY, )

Secretary of DHS; U.S. CUSTOMS AND )

BORDER PROTECTION (“CBP”);

)

KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; CAREY DAVIS, )

Port Director, CBP ; ANDY PRYOR,

)

Manager, CBP; SHANA WELLS,

)

Manager, CBP; U.S. DEPARTMENT )

OF STATE (“Department of State”);

)

THOMAS A. SHANNON, JR., Acting )

Secretary of State, Department of State. )

)

Defendants.

)

Case No. 1:17-cv-353
JOINT MOTION TO RESET DEADLINES

By and through undersigned counsel, the parties jointly request that the

Court delay the following upcoming events in this matter pursuant to Fed. R. Civ.

Pro. 6(b): (1) Defendants’ deadline for a Reply Concerning their Motion to

Dismiss, ECF No. 19, currently due on March 13, 2017; (2) the parties’ obligation

to exchange initial disclosures, L.R. 26.1; Fed. R. Civ. Pro. 26(a)(1), currently due

-1-

Case 1:17-cv-00353-TCB Document 27 Filed 03/09/17 Page 2 of 6
on March 9, 2017; and (3) the parties’ obligation file a joint preliminary report and discovery plan, L.R. 16.2, currently due on March 9, 2017.
Good cause exists to grant the Motion for the reasons stated in the accompanying memorandum. In short, the President has issued a new Executive Order that revokes the Executive Order central to Plaintiff’s Complaint. The Parties request time to assess the new Executive Order’s implementation and its impacts on how to proceed with this Matter.
By e-mail dated March 9, 2017, counsel for Plaintiff consented to the filing of this Motion. // // //
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Case 1:17-cv-00353-TCB Document 27 Filed 03/09/17 Page 3 of 6

DATED March 9, 2017
Theresia M. Moser Georgia Bar No. 526514 Moser Law Co. 112 Krog Street N.E., Suite 26 Atlanta, GA 30307

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 Assistant Director Office of Immigration Litigation District Court Section
EREZ REUVENI Senior Litigation Counsel
By: s/ Sheetul S. Wall SHEETUL S. WALL Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 598-2668 Fax: (202) 305-7000 Email: Sheetul.S.Wall2@usdoj.gov Counsel for Defendants
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Case 1:17-cv-00353-TCB Document 27 Filed 03/09/17 Page 4 of 6
Phone: (404) 537-5339 Fax: (404) 537-5340 tmoser@moserlawco.com Carl W. Hampe (pro hac vice) Daniel P. Pierce (pro hac vice) Fragomen, Del Rey, Bernsen & Loewy LLP 1101 15th St. NW, Suite 700 Washington, DC 20005 Phone: (202) 223-5515 Fax: (202) 371-2898 champe@fragomen.com dpierce@fragomen.com Counsel for Plaintiff
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Case 1:17-cv-00353-TCB Document 27 Filed 03/09/17 Page 5 of 6
CERTIFICATE OF FONT AND POINT SELECTION Undersigned counsel hereby certifies, pursuant to L.R. 7.1(D), N.D. Ga., that the foregoing JOINT MOTION TO RESET DEADLINES was prepared in Times New Roman, 14 point font, which is one of the font and point selections approved in L.R. 5.1, N.D. Ga.
/s/ Sheetul S. Wall Sheetul S. Wall
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Case 1:17-cv-00353-TCB Document 27 Filed 03/09/17 Page 6 of 6

CERTIFICATE OF SERVICE I hereby certify that I have this day filed a true and correct copy of the

within and foregoing JOINT MOTION TO RESET DEADLINES by using the

Court’s CM/ECF, which will automatically send e-mail notification of this filing to

all counsel of record.

This 9th day of March 2017.

/s/ Sheetul S. Wall Sheetul S. Wall

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Case 1:17-cv-00353-TCB Document 27-1 Filed 03/09/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

)

TAWFEEQ,

)

)

Plaintiff.

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY (“DHS”); JOHN F. KELLY, )

Secretary of DHS; U.S. CUSTOMS AND )

BORDER PROTECTION (“CBP”);

)

KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; CAREY DAVIS, )

Port Director, CBP ; ANDY PRYOR,

)

Manager, CBP; SHANA WELLS,

)

Manager, CBP; U.S. DEPARTMENT )

OF STATE (“Department of State”);

)

THOMAS A. SHANNON, JR., Acting )

Secretary of State, Department of State. )

)

Defendants.

)

Case No. 1:17-cv-353
MEMORANDUM IN SUPPORT OF JOINT MOTION TO RESET DEADLINES

By and through undersigned counsel, the parties jointly request that the Court grant additional time for the following upcoming events: (1) Defendants’ deadline for a Reply Concerning their Motion to Dismiss, ECF No. 19, currently due on March 13, 2017; (2) the parties’ obligation to exchange initial disclosures, L.R. 26.1; Fed. R. Civ. Pro. 26(a)(1), currently due on March 9, 2017; and (3) the parties’ obligation file a joint preliminary report and discovery plan, L.R. 16.2,
-1-

Case 1:17-cv-00353-TCB Document 27-1 Filed 03/09/17 Page 2 of 4
currently due on March 9, 2017. The parties request that the Court move each of these deadlines to March 23, 2017.
Good cause exists for this Motion because of a pending change to the Executive Order at the center of Plaintiff’s case. On March 6, 2017, President Donald J. Trump issued a new Executive Order that by its terms will become effective on March 16, 2017. See Ex. A at § 14. On that effective date, Executive Order 13769 of January 27, 2017, which is central to Plaintiff’s complaint, will be . See Ex. A at § 13. The new Executive Order includes a section related to nationals of Iraq, which includes Plaintiff. The parties thus request that the Court grant them time to assess the revised Executive Order and the implementation of that Order for a period of seven (7) days following its effective date. The parties believe that this course will allow them to more efficiently and fully determine: (i) how or whether Plaintiff intends to pursue this matter, and (ii) whether further briefing regarding mootness or other matters is necessary. // // //
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Case 1:17-cv-00353-TCB Document 27-1 Filed 03/09/17 Page 3 of 4

DATED March 9, 2017
Theresia M. Moser Georgia Bar No. 526514 Moser Law Co.

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 Assistant Director Office of Immigration Litigation District Court Section
EREZ REUVENI Senior Litigation Counsel
By: s/ Sheetul S. Wall SHEETUL S. WALL Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 598-2668 Fax: (202) 305-7000 Email: Sheetul.S.Wall2@usdoj.gov Counsel for Defendants
-3-

Case 1:17-cv-00353-TCB Document 27-1 Filed 03/09/17 Page 4 of 4
112 Krog Street N.E., Suite 26 Atlanta, GA 30307 Phone: (404) 537-5339 Fax: (404) 537-5340 tmoser@moserlawco.com Carl W. Hampe (pro hac vice) Daniel P. Pierce (pro hac vice) Fragomen, Del Rey, Bernsen & Loewy LLP 1101 15th St. NW, Suite 700 Washington, DC 20005 Phone: (202) 223-5515 Fax: (202) 371-2898 champe@fragomen.com dpierce@fragomen.com Counsel for Plaintiff
-4-

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 1 of 19

THE WHITE HOUSE Office of the Press Secretary

For Immediate Release

March 6, 2017

EXECUTIVE ORDER
- - - - - - -
PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the Nation from terrorist activities by foreign nationals admitted to the United States, it is hereby ordered as follows:
Section 1. Policy and Purpose. (a) It is the policy of the United States to protect its citizens from terrorist attacks, including those committed by foreign nationals. The screening and vetting protocols and procedures associated with the visa-issuance process and the United States Refugee Admissions Program (USRAP) play a crucial role in detecting foreign nationals who may commit, aid, or support acts of terrorism and in preventing those individuals from entering the United States. It is therefore the policy of the United States to improve the screening and vetting protocols and procedures associated with the visa-issuance process and the USRAP.
(b) On January 27, 2017, to implement this policy, I issued Executive Order 13769 (Protecting the Nation from Foreign Terrorist Entry into the United States).
(i) Among other actions, Executive Order 13769 suspended for 90 days the entry of certain aliens from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. These are countries that had already been identified as presenting heightened
5"8'&&2 &Y"&0

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 2 of 19
2
concerns about terrorism and travel to the United States. Specifically, the suspension applied to countries referred to in, or designated under, section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), in which Congress restricted use of the Visa Waiver Program for nationals of, and aliens recently present in, (A) Iraq or Syria, (B) any country designated by the Secretary of State as a state sponsor of terrorism (currently Iran, Syria, and Sudan), and (C) any other country designated as a country of concern by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence. In 2016, the Secretary of Homeland Security designated Libya, Somalia, and Yemen as additional countries of concern for travel purposes, based on consideration of three statutory factors related to terrorism and national security: "(I) whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States; (II) whether a foreign terrorist organization has a significant presence in the country or area; and (III) whether the country or area is a safe haven for terrorists." 8 U.S.C. 1187(a)(12)(D)(ii). Additionally, Members of Congress have expressed concerns about screening and vetting procedures following recent terrorist attacks in this country and in Europe.
(ii) In ordering the temporary suspension of entry described in subsection (b)(i) of this section, I exercised my authority under Article II of the Constitution and under section 212(f) of the INA, which provides in relevant part: "Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." 8 U.S.C. 1182(f). Under these authorities, I determined that, for a brief period of 90 days, while existing screening and vetting procedures were under review, the entry into

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 3 of 19
3
the United States of certain aliens from the seven identified countries -- each afflicted by terrorism in a manner that compromised the ability of the United States to rely on normal decision-making procedures about travel to the United States -- would be detrimental to the interests of the United States. Nonetheless, I permitted the Secretary of State and the Secretary of Homeland Security to grant case-bycase waivers when they determined that it was in the national interest to do so.
(iii) Executive Order 13769 also suspended the USRAP for 120 days. Terrorist groups have sought to infiltrate several nations through refugee programs. Accordingly, I temporarily suspended the USRAP pending a review of our procedures for screening and vetting refugees. Nonetheless, I permitted the Secretary of State and the Secretary of Homeland Security to jointly grant case-by-case waivers when they determined that it was in the national interest to do so.
(iv) Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the USRAP in light of their particular challenges and circumstances.
(c) The implementation of Executive Order 13769 has been delayed by litigation. Most significantly, enforcement of critical provisions of that order has been temporarily halted by court orders that apply nationwide and extend even to foreign nationals with no prior or substantial connection to the United States. On February 9, 2017, the United States Court of Appeals for the Ninth Circuit declined to stay or narrow one such order pending the outcome of further judicial proceedings, while noting that the "political branches are far better

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 4 of 19
4
equipped to make appropriate distinctions" about who should be covered by a suspension of entry or of refugee admissions.
(d) Nationals from the countries previously identified under section 217(a)(12) of the INA warrant additional scrutiny in connection with our immigration policies because the conditions in these countries present heightened threats. Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government's willingness or ability to share or validate important information about individuals seeking to travel to the United States. Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States. Finally, once foreign nationals from these countries are admitted to the United States, it is often difficult to remove them, because many of these countries typically delay issuing, or refuse to issue, travel documents.
(e) The following are brief descriptions, taken in part from the Department of State's Country Reports on Terrorism 2015 (June 2016), of some of the conditions in six of the previously designated countries that demonstrate why their nationals continue to present heightened risks to the security of the United States:
(i) Iran. Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq. Iran has also been linked to support for al-Qa'ida and has permitted al-Qa'ida to transport funds and fighters through Iran to Syria and South Asia. Iran does not cooperate with the United States in counterterrorism efforts.
(ii) Libya. Libya is an active combat zone, with hostilities between the internationally recognized government and its rivals. In many parts of the country, security and law enforcement functions are provided by armed militias rather than state institutions. Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 5 of 19
5
exploited these conditions to expand their presence in the country. The Libyan government provides some cooperation with the United States' counterterrorism efforts, but it is unable to secure thousands of miles of its land and maritime borders, enabling the illicit flow of weapons, migrants, and foreign terrorist fighters. The United States Embassy in Libya suspended its operations in 2014.
(iii) Somalia. Portions of Somalia have been terrorist safe havens. Al-Shabaab, an al-Qa'idaaffiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries. Somalia has porous borders, and most countries do not recognize Somali identity documents. The Somali government cooperates with the United States in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists.
(iv) Sudan. Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas. Historically, Sudan provided safe havens for al-Qa'ida and other terrorist groups to meet and train. Although Sudan's support to alQa'ida has ceased and it provides some cooperation with the United States' counterterrorism efforts, elements of core al-Qa'ida and ISIS-linked terrorist groups remain active in the country.
(v) Syria. Syria has been designated as a state sponsor of terrorism since 1979. The Syrian government is engaged in an ongoing military conflict against ISIS and others for control of portions of the country. At the same time, Syria continues to support other terrorist groups. It has allowed or encouraged extremists to pass through its territory to enter Iraq. ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe, including in the United States. The United States Embassy in Syria suspended its operations in 2012. Syria does not

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 6 of 19
6
cooperate with the United States' counterterrorism efforts.
(vi) Yemen. Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition. Both ISIS and a second group, al-Qa'ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks. Weapons and other materials smuggled across Yemen's porous borders are used to finance AQAP and other terrorist activities. In 2015, the United States Embassy in Yemen suspended its operations, and embassy staff were relocated out of the country. Yemen has been supportive of, but has not been able to cooperate fully with, the United States in counterterrorism efforts.
(f) In light of the conditions in these six countries, until the assessment of current screening and vetting procedures required by section 2 of this order is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high. Accordingly, while that assessment is ongoing, I am imposing a temporary pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to categorical exceptions and case-by-case waivers, as described in section 3 of this order.
(g) Iraq presents a special case. Portions of Iraq remain active combat zones. Since 2014, ISIS has had dominant influence over significant territory in northern and central Iraq. Although that influence has been significantly reduced due to the efforts and sacrifices of the Iraqi government and armed forces, working along with a United States-led coalition, the ongoing conflict has impacted the Iraqi government's capacity to secure its borders and to identify fraudulent travel documents. Nevertheless, the close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq's commitment to combat ISIS justify different treatment for Iraq. In particular, those Iraqi government forces that have fought to regain more than half of the territory previously

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 7 of 19
7
dominated by ISIS have shown steadfast determination and earned enduring respect as they battle an armed group that is the common enemy of Iraq and the United States. In addition, since Executive Order 13769 was issued, the Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal. Decisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.
(h) Recent history shows that some of those who have entered the United States through our immigration system have proved to be threats to our national security. Since 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States. They have included not just persons who came here legally on visas but also individuals who first entered the country as refugees. For example, in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses. And in October 2014, a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction as part of a plot to detonate a bomb at a crowded Christmas-treelighting ceremony in Portland, Oregon. The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.
(i) Given the foregoing, the entry into the United States of foreign nationals who may commit, aid, or support acts of terrorism remains a matter of grave concern. In light of the Ninth Circuit's observation that the political branches are better suited to determine the appropriate scope of any suspensions than are the courts, and in order to avoid spending additional time pursuing litigation, I am revoking Executive Order 13769 and replacing it with this order, which expressly excludes from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens.

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 8 of 19
8
Sec. 2. Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat. The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the worldwide review described in subsection (a) of this section, including the Secretary of Homeland Security's determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State, the Attorney General, and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States. I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 9 of 19
9
(d) Upon submission of the report described in subsection (b) of this section regarding the information needed from each country for adjudications, the Secretary of State shall request that all foreign governments that do not supply such information regarding their nationals begin providing it within 50 days of notification.
(e) After the period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means. The Secretary of State, the Attorney General, or the Secretary of Homeland Security may also submit to the President the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States.
(f) At any point after the submission of the list described in subsection (e) of this section, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, may submit to the President the names of any additional countries recommended for similar treatment, as well as the names of any countries that they recommend should be removed from the scope of a proclamation described in subsection (e) of this section.
(g) The Secretary of State and the Secretary of Homeland Security shall submit to the President a joint report on the progress in implementing this order within 60 days of the effective date of this order, a second report within 90 days of the effective date of this order, a third report within 120 days of the effective date of this order, and a fourth report within 150 days of the effective date of this order.
Sec. 3. Scope and Implementation of Suspension.
(a) Scope. Subject to the exceptions set forth in subsection (b) of this section and any waiver under subsection (c) of this section, the suspension of entry pursuant

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 10 of 19
10
to section 2 of this order shall apply only to foreign nationals of the designated countries who:
(i) are outside the United States on the effective date of this order;
(ii) did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and
(iii) do not have a valid visa on the effective date of this order.
(b) Exceptions. The suspension of entry pursuant to section 2 of this order shall not apply to:
(i) any lawful permanent resident of the United States;
(ii) any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;
(iii) any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;
(iv) any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country;
(v) any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or
(vi) any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 11 of 19

11

(c) Waivers. Notwithstanding the suspension of entry pursuant to section 2 of this order, a consular officer, or, as appropriate, the Commissioner, U.S. Customs and Border Protection (CBP), or the Commissioner's delegee, may, in the consular officer's or the CBP official's discretion, decide on a case-by-case basis to authorize the issuance of a visa to, or to permit the entry of, a foreign national for whom entry is otherwise suspended if the foreign national has demonstrated to the officer's satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest. Unless otherwise specified by the Secretary of Homeland Security, any waiver issued by a consular officer as part of the visa issuance process will be effective both for the issuance of a visa and any subsequent entry on that visa, but will leave all other requirements for admission or entry unchanged. Case-by-case waivers could be appropriate in circumstances such as the following:

(i)

the foreign national has previously been

admitted to the United States for a continuous period

of work, study, or other long-term activity, is

outside the United States on the effective date of

this order, seeks to reenter the United States to

resume that activity, and the denial of reentry during

the suspension period would impair that activity;

(ii) the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity;

(iii) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;

(iv) the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 12 of 19

12

(v)

the foreign national is an infant, a young

child or adoptee, an individual needing urgent medical

care, or someone whose entry is otherwise justified by

the special circumstances of the case;

(vi) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government;

(vii) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;

(viii) the foreign national is a landed Canadian immigrant who applies for a visa at a location within Canada; or

(ix) the foreign national is traveling as a United States Government-sponsored exchange visitor.

Sec. 4. Additional Inquiries Related to Nationals of Iraq. An application by any Iraqi national for a visa, admission, or other immigration benefit should be subjected to thorough review, including, as appropriate, consultation with a designee of the Secretary of Defense and use of the additional information that has been obtained in the context of the close U.S.-Iraqi security partnership, since Executive Order 13769 was issued, concerning individuals suspected of ties to ISIS or other terrorist organizations and individuals coming from territories controlled or formerly controlled by ISIS. Such review shall include consideration of whether the applicant has connections with ISIS or other terrorist organizations or with territory that is or has been under the dominant influence of ISIS, as well as any other information bearing on whether the applicant may be a threat to commit acts of terrorism or

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 13 of 19
13
otherwise threaten the national security or public safety of the United States.
Sec. 5. Implementing Uniform Screening and Vetting Standards for All Immigration Programs. (a) The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence shall implement a program, as part of the process for adjudications, to identify individuals who seek to enter the United States on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group or class of people within the United States, or who present a risk of causing harm subsequent to their entry. This program shall include the development of a uniform baseline for screening and vetting standards and procedures, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that applicants are who they claim to be; a mechanism to assess whether applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United States; and any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility or grounds for the denial of other immigration benefits.
(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Attorney General, and the Director of National Intelligence, shall submit to the President an initial report on the progress of the program described in subsection (a) of this section within 60 days of the effective date of this order, a second report within 100 days of the effective date of this order, and a third report within 200 days of the effective date of this order.
Sec. 6. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend travel of refugees into the United States under the USRAP, and the Secretary of Homeland Security shall suspend decisions on applications for refugee status, for 120 days after the effective date of this order, subject to waivers pursuant to subsection (c) of this section. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 14 of 19
14
National Intelligence, shall review the USRAP application and adjudication processes to determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. The suspension described in this subsection shall not apply to refugee applicants who, before the effective date of this order, have been formally scheduled for transit by the Department of State. The Secretary of State shall resume travel of refugees into the United States under the USRAP 120 days after the effective date of this order, and the Secretary of Homeland Security shall resume making decisions on applications for refugee status only for stateless persons and nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that the additional procedures implemented pursuant to this subsection are adequate to ensure the security and welfare of the United States.
(b) Pursuant to section 212(f) of the INA, I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any entries in excess of that number until such time as I determine that additional entries would be in the national interest.
(c) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretary of State and the Secretary of Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such individuals as refugees is in the national interest and does not pose a threat to the security or welfare of the United States, including in circumstances such as the following: the individual's entry would enable the United States to conform its conduct to a preexisting international agreement or arrangement, or the denial of entry would cause undue hardship.
(d) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of State shall examine existing law to

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 15 of 19
15
determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.
Sec. 7. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretary of State and the Secretary of Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority permitted by section 212(d)(3)(B) of the INA, 8 U.S.C. 1182(d)(3)(B), relating to the terrorism grounds of inadmissibility, as well as any related implementing directives or guidance.
Sec. 8. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for in-scope travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.
(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive set forth in subsection (a) of this section. The initial report shall be submitted within 100 days of the effective date of this order, a second report shall be submitted within 200 days of the effective date of this order, and a third report shall be submitted within 365 days of the effective date of this order. The Secretary of Homeland Security shall submit further reports every 180 days thereafter until the system is fully deployed and operational.
Sec. 9. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions. This suspension shall not apply to any foreign national traveling on a diplomatic or diplomatictype visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; traveling for purposes related to an international organization designated under the IOIA; or traveling for purposes of

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 16 of 19
16
conducting meetings or business with the United States Government.
(b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that nonimmigrant visa-interview wait times are not unduly affected.
Sec. 10. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements and arrangements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If another country does not treat United States nationals seeking nonimmigrant visas in a truly reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by that foreign country, to the extent practicable.
Sec. 11. Transparency and Data Collection. (a) To be more transparent with the American people and to implement more effectively policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available the following information:
(i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation with or provision of material support to a terrorism-related organization, or any other national-security-related reasons;

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 17 of 19
17
(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and who have engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States;
(iii) information regarding the number and types of acts of gender-based violence against women, including so-called "honor killings," in the United States by foreign nationals; and
(iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security or the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.
(b) The Secretary of Homeland Security shall release the initial report under subsection (a) of this section within 180 days of the effective date of this order and shall include information for the period from September 11, 2001, until the date of the initial report. Subsequent reports shall be issued every 180 days thereafter and reflect the period since the previous report.
Sec. 12. Enforcement. (a) The Secretary of State and the Secretary of Homeland Security shall consult with appropriate domestic and international partners, including countries and organizations, to ensure efficient, effective, and appropriate implementation of the actions directed in this order.
(b) In implementing this order, the Secretary of State and the Secretary of Homeland Security shall comply with all applicable laws and regulations, including, as appropriate, those providing an opportunity for individuals to claim a fear of persecution or torture, such as the credible fear determination for aliens covered by section 235(b)(1)(A) of the INA, 8 U.S.C. 1225(b)(1)(A).
(c) No immigrant or nonimmigrant visa issued before the effective date of this order shall be revoked pursuant to this order.

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 18 of 19
18
(d) Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry. Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.
(e) This order shall not apply to an individual who has been granted asylum, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture. Nothing in this order shall be construed to limit the ability of an individual to seek asylum, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.
Sec. 13. Revocation. Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order.
Sec. 14. Effective Date. This order is effective at 12:01 a.m., eastern daylight time on March 16, 2017.
Sec. 15. Severability. (a) If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other persons or circumstances shall not be affected thereby.
(b) If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements.
Sec. 16. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

Case 1:17-cv-00353-TCB Document 27-2 Filed 03/09/17 Page 19 of 19
19 (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP
THE WHITE HOUSE, March 6, 2017.
# # #

Case 1:17-cv-00353-TCB Document 27-3 Filed 03/09/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

)

TAWFEEQ,

)

)

Plaintiff.

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY (“DHS”); JOHN F. KELLY, )

Secretary of DHS; U.S. CUSTOMS AND )

BORDER PROTECTION (“CBP”);

)

KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; CAREY DAVIS, )

Port Director, CBP ; ANDY PRYOR,

)

Manager, CBP; SHANA WELLS,

)

Manager, CBP; U.S. DEPARTMENT )

OF STATE (“Department of State”);

)

THOMAS A. SHANNON, JR., Acting )

Secretary of State, Department of State. )

)

Defendants.

)

Case No. 1:17-cv-353 PROPOSED ORDER

Pursuant to the Court’s authority under Federal Rule of Civil Procedure 6(b), the Court hereby resets the following deadlines:
(1) Defendants’ deadline for a Reply Concerning their Motion to Dismiss, ECF No. 19;
(2) the parties’ deadline for the exchange of initial disclosures, L.R. 26.1; Fed. R. Civ. Pro. 26(a)(1);

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Case 1:17-cv-00353-TCB Document 27-3 Filed 03/09/17 Page 2 of 2
(3) the parties’ obligation file a joint preliminary report and discovery plan, L.R. 16.2.
The deadline for each of these documents shall be March 23, 2017. IT IS SO ORDERED. Honorable Timothy C. Batten United States District Judge
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 Case 1:17-cv-00353-TCB Document 28 Filed 03/13/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH TAWFEEQ,

Plaintiff,

CIVIL ACTION FILE

v.

NUMBER 1:17-cv-353-TCB

U.S. DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants.

O R D E R

Pursuant to the Court’s authority under Federal Rule of Civil

Procedure 6(b), the Court hereby resets the following deadlines:

(1) Defendants’ deadline for a Reply Concerning their Motion to

Dismiss, ECF No. 19;

(2) the parties’ deadline for the exchange of initial disclosures, L.R.

26.1; Fed. R. Civ. Pro. 26(a)(1);

(3) the parties’ obligation file a joint preliminary report and

discovery plan, L.R. 16.2.

The deadline for each of these documents shall be March 23, 2017.

Case 1:17-cv-00353-TCB Document 28 Filed 03/13/17 Page 2 of 2
IT IS SO ORDERED this 10th day of March, 2017.
____________________________________ Honorable Timothy C. Batten United States District Judge

 
 Case 1:17-cv-00353-TCB Document 31 Filed 03/22/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

)

TAWFEEQ,

)

)

Plaintiff.

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY (“DHS”); JOHN F. KELLY, )

Secretary of DHS; U.S. CUSTOMS AND )

BORDER PROTECTION (“CBP”);

)

KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; CAREY DAVIS, )

Port Director, CBP ; ANDY PRYOR,

)

Manager, CBP; SHANA WELLS,

)

Manager, CBP; U.S. DEPARTMENT )

OF STATE (“Department of State”);

)

THOMAS A. SHANNON, JR., Acting )

Secretary of State, Department of State. )

)

Defendants.

)

Case No. 1:17-cv-353 ORDER

Pursuant to the Court’s authority under Federal Rule of Civil Procedure 6(b), the Court hereby:
(1) Grants Plaintiff through March 23, 2017 the opportunity to file an Amended Complaint;
(2) Allows Defendant to withdraw their Motion to Dismiss, ECF No. 19; (3) Grants Defendants thirty (30) days from the filing of Plaintiff’s Amended
Complaint for a response thereto;
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Case 1:17-cv-00353-TCB Document 31 Filed 03/22/17 Page 2 of 2
(4) Orders that the parties will commence discovery pursuant to Local Rules and the Federal Rules of Civil Procedure or as otherwise stipulated by the parties. If no other agreement is reached, the parties will exchange initial disclosures and file a joint preliminary report and discovery plan fourteen (14) days after the date of Defendants’ answer to Plaintiff’s Amended complaint. If Defendants respond to the Amended Complaint via dispositive motion, the parties will commence discovery on the date that the Court denies any dispositive motion by Defendants, or June 15, 2017, whichever is earlier.
(5) Orders that the parties exchange of initial disclosures under L.R. 26.1; Fed. R. Civ. Pro. 26(a)(1) and file a joint preliminary report and discovery plan under L.R. 16.2 no later than fourteen (14) days after the commencement of discovery. IT IS SO ORDERED this 22nd day of March, 2017.
_____________________ Timothy C. Batten, Sr. United States District Judge
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 Case 1:17-cv-00353-TCB Document 32 Filed 03/22/17 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

)

TAWFEEQ,

)

)

Plaintiff.

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY (“DHS”); JOHN F. KELLY, )

Secretary of DHS; U.S. CUSTOMS AND )

BORDER PROTECTION (“CBP”);

)

KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; CAREY DAVIS, )

Port Director, CBP ; ANDY PRYOR,

)

Manager, CBP; SHANA WELLS,

)

Manager, CBP; U.S. DEPARTMENT )

OF STATE (“Department of State”);

)

REX WAYNE TILLERSON,

)

Secretary of State, Department of State.1 )

)

Defendants.

)

Case No. 1:17-cv-353
OPPOSITION TO MOTION FOR LEAVE TO FILE AS AMICUS CURAIE

On March 3, 2017, Professor Victor Williams filed a Motion for Leave to

File an [sic] Brief Amicus Curaie. See ECF No. 26 at 4 (stating that Prof. Williams

“offers this brief as an individual” despite his affiliation with the “America First

1 Plaintiff originally brought this Action against Thomas Shannon, who was then the acting Secretary of State. Rex Wayne Tillerson became Secretary of State upon his confirmation on February 1, 2017 and should be substituted pursuant to Fed. R. Civ. Pro. 25(d).
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Case 1:17-cv-00353-TCB Document 32 Filed 03/22/17 Page 2 of 6
Lawyers Association”). Prof. Williams primarily argues that the instant case presents non-justiciable political question because of the President’s authority to exclude aliens under the Immigration and Nationality Act (“INA”). See ECF 26 at 4-5. This Court retains broad discretion to permit the filing of amicus briefs, but it should exercise that discretion against this filing for at least two reasons. DeJulio v. Georgia, 127 F. Supp. 2d 1274, 1284-85 (N.D. Ga. 2001) (granting leave to file Amicus on a finding that the filer had an undisputed interest in the litigation and plaintiff did not oppose the filing).
First, the filing of the proposed Amicus appears to be politically motivated and would add nothing to the Court’s understanding of the relevant issues that cannot be fully addressed by the parties. See, e.g., ECF No. 26-1 at 2 (“Williams was an early primary supporter of candidate Donald Trump. . . . The campaign group has now transformed into the ‘America First Lawyers Association’ (www.americafirstlawyers.com), which Professor Williams chairs, to advance the Trump administration ‘America first’ nominations, policies, and other efforts.”). The interests of President Trump are already more than adequately represented before this Court by the Department of Justice. Moreover, as the Amicus itself notes, this Court can raise any justiciability concerns directly. See ECF 26 at 4 (“[T]his Court has an obligation to sua sponte examine this subject matter
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Case 1:17-cv-00353-TCB Document 32 Filed 03/22/17 Page 3 of 6
deficiency, in full, before proceeding further in this adjudication.”). The proposed amicus brief thus presents unnecessary new arguments—apparently for political purposes—that are not yet part of this matter and that can be raised by either the Court or Defendants as necessary.
Second, the core premise of the amicus brief—that exercises of the President’s authority to exclude aliens are non-justiciable—is mistaken. Both of the Executive Orders relevant to this matter—Executive Order No. 13,769 and Executive Order No. 13,780—rest on the President’s authority to exclude aliens under § 212(f) of the INA, 8 U.S.C. § 1182(f). The Supreme Court has historically raised no justiciability issues concerning a similar Executive Orders resting on this same legal authority. See Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 165 n.13 (1993) (noting that underlying Executive Order rested on INA § 212(f)). Other Courts considering challenges to the Executive Orders here have similarly raised no concerns about justiciability. See, e.g., Washington v. Trump, No. C170141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017); Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017).
In conclusion, Prof. Williams’s amicus brief would inject erroneous legal arguments on matters not raised by the parties or the Court. The Amicus would serve to confuse and complicate this matter instead of clarifying issues for the
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Case 1:17-cv-00353-TCB Document 32 Filed 03/22/17 Page 4 of 6

Court. The Court should thus exercise its discretion against the Motion for Leave

to File.

DATED March 22, 2017

Respectfully submitted,

/s/ Daniel P. Pierce Theresia M. Moser Georgia Bar No. 526514 Moser Law Co. 112 Krog Street N.E., Suite 26 Atlanta, GA 30307 Phone: (404) 537-5339 Fax: (404) 537-5340 tmoser@moserlawco.com

Carl W. Hampe (pro hac vice) Daniel P. Pierce (pro hac vice) Fragomen, Del Rey, Bernsen & Loewy LLP 1101 15th St. NW, Suite 700 Washington, DC 20005 Phone: (202) 223-5515 Fax: (202) 371-2898 champe@fragomen.com dpierce@fragomen.com

Attorneys for Plaintiff

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Case 1:17-cv-00353-TCB Document 32 Filed 03/22/17 Page 5 of 6
CERTIFICATE OF FONT AND POINT SELECTION Undersigned counsel hereby certifies, pursuant to L.R. 7.1(D), N.D. Ga., that the foregoing OPPOSITION FOR LEAVE TO FILE AS AMICUS CURAIE was prepared in Times New Roman, 14 point font, which is one of the font and point selections approved in L.R. 5.1, N.D. Ga.
/s/ Daniel P. Pierce Daniel P. Pierce
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Case 1:17-cv-00353-TCB Document 32 Filed 03/22/17 Page 6 of 6

CERTIFICATE OF SERVICE I hereby certify that I have this day filed a true and correct copy of the

within and foregoing OPPOSITION FOR LEAVE TO FILE AS AMICUS

CURAIE by using the Court’s CM/ECF, which will automatically send e-mail

notification of this filing to the following counsel of record:

Sheetul S. Wall Department of Justice - Office of Immigration Litigation P.O. Box 868 Ben Franklin Station 450 5th Street NW Washington, DC 20044 202-598-2668 Email: Sheetul.S.Wall2@usdoj.gov

I have also sent a copy of this filing by U.S. mail (as pro se prospective amicus is not a registered ECF user) to:

Prof. Victor Williams America First Lawyers Association 5209 Baltimore Ave. Bethesda, MD 20816 301-951-9045 Email: americanfirstlawyers@gmail.com

This 22nd day of March 2017.

/s/ Daniel P. Pierce Daniel P. Pierce

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 Case 1:17-cv-00353-TCB Document 33 Filed 03/23/17 Page 1 of 42

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

)

TAWFEEQ,

)

)

Plaintiff.

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY (“DHS”); JOHN F. KELLY, )

Secretary of DHS; U.S. CUSTOMS AND )

BORDER PROTECTION (“CBP”);

)

KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; CAREY DAVIS, )

Port Director, CBP ; ANDY PRYOR,

)

Manager, CBP; SHANA WELLS,

)

Manager, CBP; U.S. DEPARTMENT )

OF STATE (“Department of State”);

)

REX WAYNE TILLERSON,

)

Secretary of State, Department of State. )

)

Defendants.

)

Case No. 1:17-cv-353-TCB
AMENDED COMPLAINT FOR DECLARATORY, MANDAMUS, AND INJUNCTIVE RELIEF

INTRODUCTION

1. Plaintiff Mohammed Abdullah Tawfeeq is an Iraqi national, an award-

winning Middle Eastern journalist, and now a News Desk Producer and Field

Producer for Cable News Network, Inc. (“CNN”). While now based permanently

in the United States, as part of his regular duties, Mr. Tawfeeq travels abroad to

conduct reporting on the ground from the Middle East.

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Case 1:17-cv-00353-TCB Document 33 Filed 03/23/17 Page 2 of 42
2. Since 2013, Mr. Tawfeeq has been a lawful permanent resident of the United States and has entered the United States on numerous occasions without incident.
3. Mr. Tawfeeq has been a crucial part of CNN’s reporting regarding North Africa and the Middle East for over a decade. He has filed hundreds of reports from the field, has worked alongside prominent CNN journalists such as Christiane Amanpour and Anderson Cooper, and has covered numerous major world events such as the withdrawal of U.S. troops from Iraq, the fall of Muamar Quadafi in Libya, and the rise of ISIS.
4. On January 27, 2017, President Donald J. Trump signed Executive Order (“EO”) No. 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” See Ex. A (82 Fed. Reg. 8977 (Jan. 27, 2017)). That EO purported to order the immediate suspension of every “entry into the United States” by alien nationals of one of several countries for a period of 90 days. That EO specifically applied on its face to entries by “immigrants” (i.e. lawful permanent residents or green card holders) from Iraq, like Mr. Tawfeeq.
5. Beginning on the night of January 27, 2017, on information and belief Defendants began barring or otherwise impairing the entry of immigrants from the listed countries, including Iraq. On January 29, 2017, Defendants on information
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Case 1:17-cv-00353-TCB Document 33 Filed 03/23/17 Page 3 of 42
and belief used Executive Order No. 13,769 as the sole basis for detaining Mr. Tawfeeq and subjecting him to additional immigration-related screening at Atlanta Hartsfield/Jackson International Airport, which delayed his entry into the United States. On information and belief, Defendants made a determination under Executive Order No. 13,769 concerning whether they would exercise their discretion to permit Mr. Tawfeeq to enter the United States, instead of treating him as a “returning resident” as required by law.
6. On January 30, 2017, Plaintiff filed his initial Complaint. Plaintiff averred that—whatever the validity of Executive Order No. 13,769 as applied to aliens visiting temporarily—the application of that EO to lawful permanent residents like Mr. Tawfeeq returning after a brief trip abroad violated the Immigration and Nationality Act (“INA”), the Administrative Procedure Act (“APA”), and the U.S. Constitution.
7. Shortly after Plaintiff filed his Complaint, the White House Counsel and Defendant Secretary of the Department of Homeland Security John F. Kelly claimed that Executive Order No. 13,769 either would not be applied or did not apply to lawful permanent residents like Mr. Tawfeeq. The text of Executive Order No. 13,769 still applied to “immigrants,” however, and was not altered.
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Case 1:17-cv-00353-TCB Document 33 Filed 03/23/17 Page 4 of 42
8. Defendants’ implementation of certain sections of Executive Order No. 13,769 was eventually halted by various courts around the country, including most notably by a temporary restraining order from the Western District of Washington that was upheld on appeal by the Ninth Circuit. See Washington v. Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017); Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017).
9. Then, on March 6, 2017, President Trump signed Executive Order No. 13,780, which is also called “Protecting the Nation from Foreign Terrorist Entry into the United States.” See Ex. B (82 Fed. Reg. 13209 (Mar. 6, 2017)). Executive Order No. 13,780 took effect on March 16, 2017 and revoked Executive Order No. 13,769. Id. at § 13, 14.
10. Executive Order No. 13,780 again purports to suspend the entry of nationals of various countries from the United States. See Ex. B at page 8 at § 2. Unlike the prior EO, however, Executive Order No. 13,780 does not include Iraq among the list of countries whose nationals would be barred outright. See Ex. B at page 6 § 1(f) (imposing a “temporary pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen”).
11. Nevertheless, Executive Order No. 13,780 does contain provisions relating to Iraqis that continue to harm Mr. Tawfeeq by, inter alia, impairing his
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Case 1:17-cv-00353-TCB Document 33 Filed 03/23/17 Page 5 of 42
ability to travel freely into the United States. See, e.g., Ex. B at page 6 § 1(g). In particular, the Executive Order requires that “[a]n application by any Iraqi national for a visa, admission, or other immigration benefit should be subject to thorough review.” Id. at § 4.
12. Other sections of Executive Order No. 13,780 exclude lawful permanent residents from the ambit of the categorical suspension of entry. See, e.g., Ex. B at page 10 § 3(b)(i) (excepting “any lawful permanent resident” from the “suspension of entry pursuant to section 2” of the EO). By contrast, the provisions of the EO relating to Iraqi nationals—particularly § 1(g) and § 4 of the EO—apply facially to all Iraqi nationals regardless of whether they are longstanding lawful permanent residents like Mr. Tawfeeq or are seeking a temporary visa for the first time. The exclusion of lawful permanent residents in Executive Order No. 13,780 does not apply, by its terms, to Iraqi nationals.
13. At the time of this Complaint’s filing, at least two courts have enjoined portions of Executive Order No. 13,780. See Ex. C (State of Hawaii v. Trump -- Order Granting TRO) and Ex. D (International Refugee Assistance Project v. Trump -- Order Granting TRO). To Plaintiff’s knowledge, however, no Court has enjoined the EO sections relating to Iraqi nationals, including sections 1(g) and 4 of that EO.
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14. Sections 1(g) and 4 of Executive Order No. 13,780 entered into full force and effect on March 16, 2017 by their clear terms. Those provisions require Defendants to apply “additional scrutiny” to Iraqis and to subject Iraqis to “thorough review” for ties to terrorism or threats to national security and public safety. Ex. B at §§ 1(g), 4.
15. The threats to Mr. Tawfeeq’s ability to return to the United States unimpeded, as is his right under the U.S. immigration laws, thus persists despite the issuance of Executive Order No. 13,780.
16. Lawful permanent residents (i.e. immigrants) like Mr. Tawfeeq are entitled under the INA to greater procedural protections than aliens visited temporarily (i.e. non-immigrants).
17. Congress has by statute laid out careful guidance concerning when and how lawful permanent residents such as Mr. Tawfeeq can be removed from the country, and the Federal Courts have on numerous occasions noted that such residents are entitled to robust constitutional protections.
18. Both Executive Order No. 13,769 and Executive Order No. 13,780 have greatly increased the uncertainty involved in current and future international travel for returning Iraqi lawful permanent residents like Mr. Tawfeeq.
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19. Further clarification of the law by the Federal Courts is clearly required to ensure that Executive Order No. 13,780 is not improperly applied to returning Iraqi lawful permanent residents like Mr. Tawfeeq.
20. Application of Executive Order No. 13,780 to Mr. Tawfeeq exceeds Defendants’ authority under the INA because, under the INA, Congress has not provided the immigration agencies with legal authority to prevent or impede the return of lawful permanent resident aliens like Mr. Tawfeeq into the United States.
21. Mr. Tawfeeq seeks (i) a declaration of his rights under the Immigration and Nationality Act; (ii) a declaration that Defendants are violating his rights under the Administrative Procedure Act; (iii) a declaration that Defendants are violating his rights under the U.S. Constitution; (iv) an injunction against the application of Executive Order No. 13,780 to returning Iraqi immigrants like Mr. Tawfeeq; (v) a writ of mandamus instructing DHS to instruct its employees inspecting aliens at U.S. ports of entry to exclude returning Iraqi resident immigrants such as Mr. Tawfeeq from Executive Order No. 13,780; and (vi) any other appropriate remedies to which the Court determines that he is entitled.
PARTIES
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22. Plaintiff Mohammed Abdullah Tawfeeq was born in 1971 in Iraq and is an Iraqi citizen. Mr. Tawfeeq was resettled as refugee in the United States and, on June 20, 2013, Mr. Tawfeeq became a lawful permanent resident in the United States.
23. Defendant U.S. Department of Homeland Security (“DHS”) is a federal agency bearing responsibility for the administration and enforcement of the nation’s immigration laws.
24. Defendant John F. Kelly is sued in his official capacity as Secretary of DHS, in which capacity he is charged with the just administration and enforcement of the immigration laws. 8 U.S.C. § 1103(a).
25. Defendant U.S. Customs and Border Protection (“CBP”), a agency within DHS, is responsible for detecting and preventing the unlawful entry of persons and goods into the United States.
26. Defendant Kevin A. McAleenan is the Acting Commissioner of CBP and is sued in his official capacity.
27. On information and belief, Defendant Carey Davis is CBP’s Port Director for Atlanta and is sued in his official capacity. On information and belief, he is responsible for the processing of aliens arriving to the United States through Atlanta Hartsfield/Jackson International Airport.
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28. On information and belief, Defendant Andy Pryor is a Manager of CBP’s Atlanta Port and is sued in his official capacity. On information and belief, he is responsible for the processing of aliens arriving to the United States through Atlanta Hartsfield/Jackson International Airport.
29. On information and belief, Defendant Shana Wells is a Manager of CBP’s Atlanta Port and is sued in her official capacity. On information and belief, she is responsible for the processing of aliens arriving to the United States through Atlanta Hartsfield/Jackson International Airport.
30. Defendant U.S. Department of State is a federal agency bearing responsibility for the administration and enforcement of the immigration laws.
31. Defendant Rex Wayne Tillerson is sued in his official capacity as Secretary of State.
JURISDICTION AND VENUE 32. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. See Califano v. Sanders, 430 U.S. 99, 105 (1977) (except where statutes preclude review, 28 U.S.C. § 1331 “confer[s] jurisdiction on federal courts to review agency action”). See also 5 U.S.C. § 702; 28 U.S.C. § 1361; 28 U.S.C. §§ 2201–2202.
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33. Defendants have a non-discretionary duty to inspect for return to the United States lawful permanent residents eligible for treatment as “returning residents” and not otherwise barred. Because this duty is not discretionary, neither the immigration laws (see, e.g., 8 U.S.C. § 1252(a)(2)(B)(ii)) nor the Administrative Procedure Act (“APA”) withdraws jurisdiction.
34. The aid of the Court is invoked under 28 U.S.C. §§ 2201 and 2202, authorizing declaratory judgment.
35. Plaintiff seeks costs and attorneys fees pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504, and 28 U.S.C. § 2412(d), et seq.
36. Venue properly lies in this judicial district under 28 U.S.C. § 1391(e). Defendants are agencies and officers of agencies of the United States sued in their official capacities. As such, venue is proper because a substantial part of the events or omissions giving rise to these claims occurred in this District. Venue is also proper because Plaintiff resides in this District, and no real property is involved in this action.
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EXHAUSTION OF REMEDIES 37. Plaintiff has no other adequate remedy available for the harm that he seeks to redress—the application by Defendants DHS and CBP of Executive Order No. 13,780 to returning resident immigrants such as Plaintiff.
FACTS 38. Plaintiff Mohammed Abdullah Tawfeeq was born in 1971 in Iraq and is a citizen of Iraq. 39. Mr. Tawfeeq was resettled as a refugee in the United States because of direct threats against him in Iraq because of his work as a reporter. 40. On June 20, 2013, the United States government made Mr. Tawfeeq a lawful permanent resident. The green card in his possession expires on January 11, 2026. 41. Mr. Tawfeeq owns a condominium in Atlanta, Georgia. 42. Mr. Tawfeeq’s brother is an American citizen and lives in Kentucky. 43. Mr. Tawfeeq is a journalist by trade. He has over 10 years of experience as an international news editor and producer specializing in the Middle East and North Africa (MENA) region.
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44. Mr. Tawfeeq has covered several significant historical events within that region, including the U.S.-led invasion of Iraq and subsequent sectarian violence, the toppling of Muamar Quadafi in Libya, and the rise of ISIS.
45. Since 2004, Mr. Tawfeeq has worked for Cable News Network, Inc. (“CNN”). He worked for CNN first as a freelancer before being hired as a fulltime employee in 2006.
46. Mr. Tawfeeq has been placed on CNN special assignments along the Syria-Lebanon border and in Jordan, Saudi Arabia, and Libya.
47. From February 2004 to November 2011, Mr. Tawfeeq was a Field Producer for CNN. In that capacity, he contributed to hundreds of CNN stories in the field and to several specials with CNN reporters and anchors including Christiane Amanpour and Anderson Cooper.
48. From December 2011 to June 2013, Mr. Tawfeeq was CNN’s Baghdad Bureau Chief. In that capacity, he oversaw all managerial duties of CNN’s Baghdad office and produced countless stories concerning topics such as the U.S. troop withdrawal from Iraq.
49. In July 2013, Mr. Tawfeeq was transferred to CNN’s U.S. offices in Atlanta. He was a news editor through February 2016, when he became an
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International Desk Producer. He is currently a News Desk Producer and Field Producer.
50. While Mr. Tawfeeq primarily performs his duties from the United States, he must still regularly travel to the Middle East to facilitate CNN’s reporting there.
51. On October 17, 2016, Mr. Tawfeeq left the United States bound for Iraq. After completing an assignment for CNN in northern Iraq, Mr. Tawfeeq spent time with family members in that country.
52. On January 29, 2017 at approximately 9:05am local time, Mr. Tawfeeq departed from Baghdad, Iraq en route to Atlanta, Georgia, with a layover in Istanbul, Turkey.
53. On January 29, 2017 at approximately 7:20pm Eastern Standard Time, Mr. Tawfeeq landed at Atlanta Hartsfield/Jackson International Airport.
54. When Mr. Tawfeeq presented himself for inspection at Atlanta Hartsfield/Jackson International Airport, the CBP officer in primary inspection notified him that he could be refused entry under the President’s then-recentlysigned Executive Order No. 13,769.
55. That CBP official scanned his passport and green card, asked Mr. Tawfeeq why he was in Iraq for such a long period of time, asked whether his trip
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to Iraq was for business or to visit family, and asked what he did for a living. Mr. Tawfeeq was then sent to secondary inspection
56. CBP officials then told Mr. Tawfeeq to wait because they needed to seek “an e-mail” concerning whether he would be allowed into the United States.
57. After approximately 30 minutes of waiting, CBP officials at the airport asked Mr. Tawfeeq whether he had ever been fingerprinted. Mr. Tawfeeq told officials that he had been repeatedly fingerprinted by the U.S. government when embedded with the U.S. military in Iraq.
58. CBP officials came back to Mr. Tawfeeq a few minutes later and indicated that he was free to enter the United States.
59. CBP officials gave Mr. Tawfeeq no explanation for their decision, no documents relating to his entry, nor did they stamp his passport.
Executive Order No. 13,769 60. On January 27, 2017, President Donald J. Trump signed Executive Order No. 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.” See Ex. A (82 Fed. Reg. 8977 (Jan. 27, 2017)). 61. Executive Order No. 13,769 purported to rest on “authority vested…as President by the Constitution and laws of the United States of America,
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including the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et. seq, and section 301 of title 3, United States code.” Ex. A at page 1.
62. Executive Order No. 13,769 also imposed a 90-day ban on entry into the United States by aliens of certain nationalities:
I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas). Ex. A at page 3 § 3(c) (emphasis added). Under the INA, the term “immigrants” refers to lawful permanent resident aliens, such as Mr. Tawfeeq. 63. Executive Order No. 13,769 included Iraq on the list of countries whose aliens were prohibited from “entry” into the United States for 90 days from the signing of that EO. See INA § 217(a)(12)(A)(i)(I), 8 U.S.C. § 1187(a)(12)(A)(i)(I). 64. On its face, Executive Order No. 13,769 applied to immigrants like Mr. Tawfeeq.
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65. On information and belief, Defendant DHS originally determined that it could not legally apply Executive Order No. 13,769 to all lawful permanent residents.
66. On information and belief, the staff of President Donald J. Trump overruled DHS’s legal determination, and DHS subsequently applied Executive Order No. 13,769 to lawful permanent residents as well as to non-immigrants.
67. The spokeswoman for Defendant DHS told the Reuters news agency on January 28, 2017, that Executive Order No. 13,769 would be applied to bar lawful permanent residents from entering the United States.
68. The Department of State also confirmed to the press that Executive Order No. 13,769 would be applied to bar lawful permanent residents from entering the United States.
69. The President’s Chief of Staff, Reince Priebus, appeared to contradict Defendant agencies on the applicability of Executive Order No. 13,769 to lawful permanent residents, stating on Meet the Press on January 29, 2017: “As far as green card holders moving forward, [Executive Order No. 13,769] doesn’t affect them.”
70. DHS Secretary John Kelly issued a press release on January 29, 2017 that stated:
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In applying the provisions of the president's executive order, I hereby deem the entry of lawful permanent residents to be in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations. Ex. E. As of the filing of this Amended Complaint, that press release is still available on DHS’s website. 71. Then, on February 1, 2017, White House Counsel Donald F. McGahn II issued a document entitled “MEMORANDUM TO THE ACTING SECRETARY OF STATE, THE ACTING ATTORNEY GENERAL, AND THE SECRETARY OF HOMELAND SECURITY.” That document had a subject line of “Authoritative Guidance on Executive Order Entitled ‘Protecting the Nation from Foreign Terrorist Entry into the United States’ (Jan. 27, 2017).” See Ex. F. 72. The White House Counsel’s memorandum stated in part: I understand that there has been reasonable uncertainty about whether [Sections 3(c) and 3(e) of Executive Order No. 13,769] 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. Ex. F at page 1.
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73. The White House Counsel’s statement did not explain the legal basis on which the White House Counsel issued the purported “authoritative guidance” or which of Defendants that guidance would legally bind.
74. On February 3, 2017, Defendant DHS issued a document from its Office of the Press Secretary entitled “Statement on Countries Currently Suspended from Travel to the United States.” Ex. G at page 1.
75. That document stated in part: To ensure that the U.S. government can conduct a thorough analysis of the national security risks faced by our immigration system, the Executive Order imposes a 90-day pause on the entry into the United States of nationals from Iraq, Syria, Sudan, Iran, Somalia, and Yemen. This pause does not apply to Lawful Permanent Residents[.] Ex. G at page 2. 76. Despite these varying views by Defendants and other U.S. government officials concerning the applicability of Executive Order No. 13,769, the language in that Executive Order was not changed from the date of its signing through its revocation on March 16, 2017. 77. Various Federal Courts considered legal challenges to Executive Order No. 13,769 between January 27, 2016 and March 16, 2017. Several of those Courts issued temporary restraining orders and other injunctions that prevented Defendants from full implementation of that Order. See, e.g., Washington v.
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Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017); Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017).
78. On information and belief, Defendants applied Executive Order No. 13,769 to encumber or bar the entry of numerous lawful permanent residents from the United States at various ports of entry in the United States, including Atlanta Hartsfield/Jackson International Airport, before March 16, 2017.
79. On information and belief, Defendants also spoke about Executive Order No. 13,769 to international airlines, which resulted in the prevention of certain lawful permanent residents from boarding flights bound for the United States, including flights bound for Atlanta Hartsfield/Jackson International Airport, before March 16, 2017.
Executive Order No. 13,780 80. On March 6, 2017, President Trump signed Executive Order No. 13,780, which is also called “Protecting the Nation from Foreign Terrorist Entry into the United States.” See Ex. B (82 Fed. Reg. 13209 (Mar. 6, 2017)). 81. Executive Order No. 13,780 took effect on March 16, 2017 and concurrently revoked Executive Order No. 13,769. Ex. B at page 19 §§ 13, 14.
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82. Executive Order No. 13,780 again purports to suspend temporarily the
entry of certain nationals of six countries, Iran, Libya, Somalia, Sudan, Syria, and
Yemen. See Ex. B at §§ 1(e-f), 2.
83. Unlike the prior EO, however, Executive Order No. 13,780 provides
an exception to the temporary suspension of entry with respect to, inter alia, lawful
permanent residents from the affected six countries. See Ex. B at § 3(b) (“The
suspension of entry pursuant to section 2 of this order shall not apply to: (i) any
lawful permanent resident o the United States[.]”).
84. Unlike the prior EO, Executive Order No. 13,780 does not purport to
suspend the entry of all Iraqi nationals. See Ex. B at §§ 1(e-f), 2.
85. Instead, Executive Order No. 13,780 contains two provisions
primarily directed at Iraqi nationals. Section 1(g) of Executive Order No. 13,780
states:
(g) Iraq presents a special case. Portions of Iraq remain active combat zones. Since 2014, ISIS has had dominant influence over significant territory in northern and central Iraq. Although that influence has been significantly reduced due to the efforts and sacrifices of the Iraqi government and armed forces, working along with a United States-led coalition, the ongoing conflict has impacted the Iraqi government’s capacity to secure its borders and to identify fraudulent travel documents. Nevertheless, the close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq's commitment to combat ISIS justify different treatment for Iraq. In particular, those Iraqi government forces that have fought to regain more than half of
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the territory previously dominated by ISIS have shown steadfast determination and earned enduring respect as they battle an armed group that is the common enemy of Iraq and the United States. In addition, since Executive Order 13769 was issued, the Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal. Decisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.
Ex. B at page 6 § 1(g) (emphasis added).
86. Section 4 of Executive Order No. 13,780 states:
Sec. 4. Additional Inquiries Related to Nationals of Iraq. An application by any Iraqi national for a visa, admission, or other immigration benefit should be subjected to thorough review, including, as appropriate, consultation with a designee of the Secretary of Defense and use of the additional information that has been obtained in the context of the close U.S.-Iraqi security partnership, since Executive Order 13769 was issued, concerning individuals suspected of ties to ISIS or other terrorist organizations and individuals coming from territories controlled or formerly controlled by ISIS. Such review shall include consideration of whether the applicant has connections with ISIS or other terrorist organizations or with territory that is or has been under the dominant influence of ISIS, as well as any other information bearing on whether the applicant may be a threat to commit acts of terrorism or otherwise threaten the national security or public safety of the United States.
Ex. B at page 13 § 4 (emphasis added).
87. No section of Executive Order No. 13,780 removes Iraqi lawful
permanent residents like Plaintiff from the “additional scrutiny” contemplated in
§ 1(g) of that EO.
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88. No section of Executive Order No. 13,780 removes Iraqi lawful permanent residents like Plaintiff from the “thorough review” contemplated in § 4 of that EO.
89. No section of Executive Order No. 13,780 imposes “additional scrutiny” or “thorough review” on lawful permanent residents from Iran, Libya, Somalia, Sudan, Syria, or Yemen.
90. Lawful permanent residents from Iraq are thus subject to scrutiny and review above and beyond that imposed on lawful permanent residents from countries whose residents the President saw fit to temporarily ban from entry.
91. On information and belief, Defendants have and will continue to implement additional screening procedures of the type contemplated by sections 1(g) and 4 of Executive Order No. 13,780 on lawful permanent residents from Iraq.
Executive Order No. 13,780 Cannot Legally Be Applied to Returning Lawful Permanent Residents Like Plaintiff
Whom the Statute Does Not Even Treat as Seeking Admission 92. Section 212(f) of the INA states:
(f) Suspension of entry or imposition of restrictions by President Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has
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failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline. 8 U.S.C. § 1182(f). 93. Historically the President has exercised his authority under INA § 212(f) to ban discrete groups of aliens, such as those participating in human rights abuses in other countries, or those leaving from their home countries for the United States without a visa or other authorization to enter. 94. On information and belief, prior to January 2017, no President had ever suspended all aliens from an entire country from entering the United States under Section 212(f), much less from numerous countries as Executive Order No. 13,769 purported to do and as Executive Order No. 13,780 purports now to do. 95. A report summarizing previous exercises of the President’s authority under this section, prepared by the Congressional Research Service and dated January 23, 2017, identifies no instance of a prior exercise of this authority in so broad a manner. See Kate M. Manuel, Executive Authority to Exclude Aliens: In Brief, Congressional Research Service (Jan. 23, 2017), available at https://fas.org/sgp/crs/homesec/R44743.pdf. 96. INA § 212(f) has been a part of the INA since its enactment in 1952.
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97. In 1996—long after the addition of INA § 212(f), Congress made
several overhauls to the INA. See Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, P.L. 104-208, Div. C (“IIRAIRA”).
98. Among those overhauls in IIRAIRA, Congress eliminated the concept
of “entry” and provided in its place a new definition for “admission” and
“admitted” at 8 U.S.C. § 1101(a)(13).
99. That provision draws a distinction between “applicants for
admission”—such as all nonimmigrants and some immigrants—and returning
lawful permanent resident alien aliens, like Mr. Tawfeeq, who are not deemed to
be seeking admission. See 8 U.S.C. § 1101(a)(13)(C).
100. Specifically, a lawful permanent resident returning from abroad is not
an applicant for “admission” unless that resident:
(i) has abandoned or relinquished that status (ii) has been absent from the United States for a continuous period
in excess of 180 days, (iii) has engaged in illegal activity after having departed the United
States, (iv) has departed from the United States while under legal process
seeking removal of the alien from the United States, including removal proceedings under this chapter and extradition proceedings, (v) has committed an offense identified in section 1182(a)(2) of this title, unless since such offense the alien has been granted relief under section 1182(h) or 1229b(a) of this title, or (vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to
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the United States after inspection and authorization by an immigration officer. 8 U.S.C. § 1101(a)(13)(C)(i-vi). 101. The Federal Courts have since equated the pre-1996 concept of “entry,” over which INA § 212(f) provides authority to the President, with current law’s concept of “admission,” which does not apply to returning lawful permanent immigrants such as Mr. Tawfeeq. This line of cases does so in part by construing 8 U.S.C. § 1101(a)(13)(A)’s definition of “admission,” which incorporates the term “entry.” 102. Mr. Tawfeeq did not abandon or relinquish his lawful permanent residence status before returning to the United States on January 29, 2017. 103. Mr. Tawfeeq was not absent from the United States for a continuous period in excess of 180 days before returning to the United States on January 29, 2017. 104. Mr. Tawfeeq did not engage in illegal activity after departing the United States and before returning to the United States on January 29, 2017. 105. Mr. Tawfeeq has never departed from the United States while under legal process seeking his removal. 106. Mr. Tawfeeq has never committed a criminal offense identified in 8 U.S.C. § 1182(a)(2).
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107. Mr. Tawfeeq last sought to return to the United States through Atlanta Hartsfield/Jackson International Airport on January 29, 2017. He did not then attempt and has never attempted to enter the United States at a time or place other than as designated by immigration officers and has never been admitted to the United States without inspection or authorization by an immigration officer.
108. Because he was a returning lawful permanent resident alien who met none of the disqualifying conditions described in 8 U.S.C. § 1101(a)(13)(C)(i-vi), Mr. Tawfeeq did not on January 29, 2017 seek “admission” to the United States of America.
109. Through the elimination of the concept of “entry” and the addition of 8 U.S.C. § 1101(a)(13)(C) in 1996, and with full knowledge of the terms of INA Section 212(f) as enacted in 1952, Congress has determined that the President’s ability to ban the entry of certain aliens under INA § 212(f) does not extend to returning lawful permanent residents as described in 8 U.S.C. § 1101(a)(13)(C).
110. The President’s INA § 212(f) authority therefore cannot be applied to returning residents who by law do not seek “admission” as set forth in 8 U.S.C. § 101(a)(13)(C), and therefore Defendants may not implement the Executive Order in a manner that includes Plaintiff.
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111. Defendants, by their prior actions and public statements regarding Executive Order No. 13,769, however, have indicated their intention to disregard 8 U.S.C. 1101(a)(13)(C), and to apply INA § 212(f) in an overly broad manner, and thus the assistance of this Court is requested, through the relief requested herein.
112. On information and belief, CBP admitted Mr. Tawfeeq on January 29, 2017, based on an improper analysis of whether he was entitled to a case-by-case exception to Executive Order No. 13,769.
113. On information and belief, CBP did not admit Mr. Tawfeeq on January 29, 2017, based on a proper analysis under INA § 101(a)(13)(C). Such an analysis would have required the conclusion that Mr. Tawfeeq was not an alien seeking “admission” into the United States.
114. On information and belief, if Mr. Tawfeeq were to leave and return to the United States today, he would be subjected to impermissible additional questioning and screening under the provisions of Executive Order No. 13,780 relating to nationals of Iraq. That screening could impede or bar his return from the United States.
Application of Executive Order No. 13,780 to Returning Lawful Permanent Residents Like Plaintiff Violate Their Due Process Rights
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115. Application of Executive Order No. 13,780 to returning lawful permanent residents like Plaintiff also violates their rights to statutory process under the INA, as well as their procedural due process rights under the U.S. Constitution.
116. Once lawful permanent residents present themselves for inspection at a port of entry, they cannot lawfully be removed from the United States without due process of law.
117. The INA provides carefully crafted statutory mechanisms whereby aliens can be removed. Some of those mechanisms with the least amount of process, such as “expedited removal” under INA § 235, cannot be applied at all to lawful permanent residents. See 8 U.S.C. § 1225; 8 C.F.R. § 235.3(b)(5)(ii).
118. At a minimum, a lawful permanent resident presenting himself at a port is entitled to the robust removal procedures under INA § 240. See 8 U.S.C. § 1229a. At such a removal hearing, Defendants would bear the burden of showing that the lawful permanent resident should be removed and would be required to state the basis for that removal. Such removal would be subject to administrative appellate review, and to further review in the Federal Courts.
119. Courts have long recognized that lawful permanent residents, including those returning from trips abroad, are entitled to Fifth Amendment due
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process protections. See, e.g., Kwong Hai Chew v. Colding, 344 U.S. 590, 601 (1953) (“While it may be that a resident alien's ultimate right to remain in the United States is subject to alteration by statute or authorized regulation because of a voyage undertaken by him to foreign ports, it does not follow that he is thereby deprived of his constitutional right to procedural due process. His status as a person within the meaning and protection of the Fifth Amendment cannot be capriciously taken from him.”).
120. Application of Executive Order No. 13,780 could deprive lawful permanent immigrants the process to which they are entitled by both the INA and the Constitution.
121. INA § 212(f) does not allow the President or Defendants to override the INA’s carefully crafted procedural protections, including the right for a lawful permanent resident to challenge his removability in a proceeding under INA § 240.
122. Nevertheless, on information and belief, Defendants have reserved for themselves the right to condition or refuse the return of lawful permanent residents like Mr. Tawfeeq, for example based on information provided by the Secretary of Defense, in violation of these statutory protections and without the procedural hearing required by INA § 240 and the process mandated by the Constitution. Such a result is ultra vires because the INA provides the Secretary of Defense with
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no role in the admission or inspection process for returning lawful permanent resident aliens.
123. Application of either Executive Order No. 13,769 or Executive Order No. 13,780 to Plaintiff would rob him of the procedural protections due him under the INA. The Executive Orders provide Plaintiff with no way of avoiding additional screenings and delays at airports or any removal or other encumbrance to travel based on that additional screening. Such a mechanism is constitutionally infirm and statutorily prohibited.
124. Nevertheless, on information and belief, Defendants improperly did admit Plaintiff pursuant to the Executive Order No. 13,769 on January 29, 2017 and would impermissibly screen him pursuant to Executive Order No. 13,780 if he attempted to enter the United States in the future.
125. On information and belief, Defendants intend to implement § 1(g) and § 4 of Executive Order No. 13,780 to encumber the return of Iraqi lawful permanent residents.
126. Executive Order No. 13,780 would be applied to Plaintiff when he presents himself for inspection after a trip abroad.
Ongoing Harm to Plaintiff
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127. Plaintiff is regularly required to engage in international travel to perform his job duties, which include reporting on events in the Middle East and North Africa. See Ex. H (Decl. of Deborah Rayner).
128. But for the uncertainty caused by the issuance of Executive Order Nos. 13,769 and 13,780, Plaintiff’s employer would have already sent him on various trips from late January 2017 through the filing of this Complaint. Ex. H (Decl. of Deborah Rayner) at ¶ 7.
129. The continued uncertainty has forced Mr. Tawfeeq’s employer not to send him on future trips abroad, which has and will cause damage to Mr. Tawfeeq’s ability to perform his current job and other damage to his career. Ex. H (Decl. of Deborah Rayner) at ¶ 6.
130. The uncertainty surrounding Plaintiff’s situation has been heightened by President Trump’s publicly expressed desires to revoke Executive Order No. 13,780 and reissue the flawed Executive Order No. 13,769.
131. President Trump spoke at a political rally in Nashville, Tennessee on March 15, 2017. At that rally, President Trump called Executive Order No. 13,780 a “watered down version of the first order.” He later reiterated, speaking of Executive Order No. 13,780: “This is a watered down version of the first one. This is a watered down version.” Ex. I at page 9 (Rally Transcript).
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132. President Trump stated that Executive Order No. 13,780 was “tailored to the dictates of the 9th Circuit, in my opinion, flawed ruling.” President Trump stated that he “wasn’t thrilled, but the lawyers said oh, let’s tailor it.” He also stated “And let me tell you something. I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place.” Ex. I at page 9 (Rally Transcript).
133. President Trump could at any time legally revoke Executive Order No. 13,780 and immediately promulgate an executive order with identical content to that of Executive Order No. 13,769.
134. Because of the uncertainty caused by the Executive Orders and Defendants’ conduct, Plaintiff’s employer has not felt comfortable permitting Plaintiff to travel outside of the United States.
135. If Plaintiff cannot resume regular travel into the United States with certainty that he will be permitted to return unimpeded, Plaintiff will suffer further damage to his professional career and reputation.
CLAIMS FOR RELIEF FIRST CAUSE OF ACTION Deprivation of Rights Under the INA
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136. Plaintiff repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
137. Defendants have a non-discretionary legal duty under INA § 101(a)(13)(C) to permit the Plaintiff to return the United States without “admission.”
138. On information and belief, rather than inspecting Plaintiff and allowing him to proceed into the United States as a returning resident, Defendant CBP improperly admitted Plaintiff under the Executive Order No. 13,769 in on January 29, 2017.
139. By, on information and belief, applying the Executive Order to Plaintiff’s entry on January 29, 2017, Defendants deprived Plaintiff of his rights as a lawful permanent resident, including his rights under INA § 101(a)(13)(C). 8 U.S.C. § 1101(a)(13)(C).
140. Executive Order No. 13,780, through the imposition of additional screening procedures for lawful permanent residents from Iraq, will further deprive Plaintiff of his rights as a lawful permanent resident, including his rights under INA § 101(a)(13)(C). 8 U.S.C. § 1101(a)(13)(C).
SECOND CAUSE OF ACTION Violations of the APA -33-

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141. Plaintiff repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
142. Defendants’ refusal to permit Plaintiff to return to the United States without admission on January 29, 2017, was arbitrary and capricious and not otherwise in accordance with law. 5 U.S.C. § 706(2).
143. Defendants’ decision to apply Executive Order No. 13,769 to Plaintiff as a lawful permanent resident was arbitrary and capricious and not otherwise in accordance with law. 5 U.S.C. § 706(2).
144. Any application of Executive Order No. 13,780 to Plaintiff would similarly be arbitrary and capricious because it would unlawfully treat him differently than lawful permanent residents from other countries.
145. Defendant CBP’s application of Executive Order No. 13,769 to Plaintiff, which occurred on information and belief the night of January 29, 2017, was not authorized by the INA. Any application of Executive Order No. 13,780 to Plaintiff upon his return from abroad would be similarly not authorized by the INA.
146. Further, Defendants actions with respect to Plaintiff on January 29, 2017 were, and any application of Executive Order No. 13,780 to Plaintiff would be, arbitrary, capricious, an abuse of discretion, and not otherwise in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess
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of statutory jurisdiction, authority, or limitations, or short of statutory right; and without observance of procedure required by law, in violation of the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D).
THIRD CAUSE OF ACTION Declaratory Judgment
147. Plaintiff repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
148. Plaintiff is entitled to a declaration of his rights, which shall have the force and effect of a final judgment, in accordance with 28 U.S.C. § 2201(a).
149. In particular, Plaintiff is entitled to a declaration that Executive Order No. 13,780 does not extend to returning permanent resident aliens who satisfy the conditions set forth in INA § 101(a)(13)(C). 8 U.S.C. § 1101(a)(13)(C).
FOURTH CAUSE OF ACTION Mandamus
150. Plaintiff repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
151. Mandamus lies in the present action because Defendants owe Plaintiff a non-discretionary legal duty to permit his return to the United States without admission.
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152. Defendants’ prior failure to permit Plaintiff’s return pursuant to INA § 101(a)(13)(C) constitutes a violation of a duty owed to him, as would any future failure to permit his return pursuant to that provision. See 8 U.S.C. § 1101(a)(13)(C).
153. Defendants owe Plaintiff a duty to obey applicable law, and to instruct its employees at border ports of entry to exclude returning Iraqi lawful permanent residents within INA § 101(a)(13)(C) from any additional screening contemplated by Executive Order No. 13,780.
154. Plaintiff has no other adequate remedy to address Defendants’ failure to permit his unimpeded return to the United States.
155. The Court therefore has authority under the Mandamus Act, 28 U.S.C. § 1361, to compel the Government to permit Plaintiff’s return to the United States under the terms of INA § 101(a)(13)(C), rather than under the terms of Executive Order No. 13,780.
FIFTH CAUSE OF ACTION Deprivation of Procedural Due Process 156. Plaintiff repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
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157. Returning lawful permanent residents like Plaintiff are entitled to statutory and regulatory procedural rights before they can be removed from the United States.
158. On information and belief, those statutory and procedural rights are being violated by impeding or preventing the return of lawful permanent residents from the United States without the process due them under, inter alia, INA § 240. See 8 U.S.C. § 1229a.
159. If Plaintiff leaves the United States, he too could be subject to a violation of those statutory rights.
160. In addition, 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.
161. Application of Executive Order No. 13,780 to lawful permanent residents like Plaintiff deprives them of the process due them under the Fifth Amendment.
162. In particular, Executive Order No. 13,780 impermissibly injects the Secretary of Defense into the admission or inspection on return of lawful permanent residents when, under the INA, the Secretary of Defense has no such role.
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163. Defendants’ actions in threatening to exclude Plaintiff under Executive Order No. 13,769 and on information and belief in applying their discretion under that Executive Order to admit him on January 30, 2017, violated Plaintiff’s procedural due process rights guaranteed by the Fifth and Fourteenth Amendments.
164. Defendants’ use of Executive Order No. 13,780 to impede or bar Plaintiff’s entry into the United States would also violate Plaintiff’s procedural due process rights guaranteed by the Fifth and Fourteenth Amendments.
SIXTH CAUSE OF ACTION Equal Access to Justice Act 165. Plaintiff repeats and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 166. Plaintiff is entitled to recoup his reasonable attorney’s fees and costs pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504 and 28 U.S.C. § 2412(d), et seq. 167. Plaintiff’s net worth does not and has not exceeded $2,000,000 at any relevant time.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Court grant the following relief: 1. Issue an injunction ordering Defendants not to detain or apply a
discretionary admissions assessment or place conditions upon the right to return to any returning Iraqi lawful permanent resident including Plaintiff solely on the basis Executive Order No. 13,780; 2. Enter a judgment declaring unlawful Defendants’ refusal under Executive Order No. 13,769 to permit Plaintiff’s return into the United States pursuant to INA § 101(a)(13)(C); 3. Enter a judgment declaring Defendants’ conduct to be a violation of Plaintiff’s rights under the INA, the APA, and the U.S. Constitution; 4. Issue an order of mandamus to Defendants compelling them to provide instructions to their employees to allow lawful permanent residents like Plaintiff to return to the United States under the criteria in INA § 101(a)(13)(C); 5. Award Plaintiff’s reasonable costs and attorney’s fees; and 6. Grant any other and further relief that this Court may deem fit and proper.

DATED March 23, 2017

Respectfully submitted, -39-

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/s/ Daniel P. Pierce Theresia M. Moser Georgia Bar No. 526514 Moser Law Co. 112 Krog Street N.E., Suite 26 Atlanta, GA 30307 Phone: (404) 537-5339 Fax: (404) 537-5340 tmoser@moserlawco.com Carl W. Hampe (pro hac vice) Daniel P. Pierce (pro hac vice) Fragomen, Del Rey, Bernsen & Loewy LLP 1101 15th St. NW, Suite 700 Washington, DC 20005 Phone: (202) 223-5515 Fax: (202) 371-2898 champe@fragomen.com dpierce@fragomen.com Attorneys for Plaintiff
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CERTIFICATE OF FONT AND POINT SELECTION Undersigned counsel hereby certifies, pursuant to L.R. 7.1(D), N.D. Ga., that the foregoing AMENDED COMPLAINT FOR DECLARATORY, MANDAMUS, AND INJUNCTIVE RELIEF was prepared in Times New Roman, 14 point font, which is one of the font and point selections approved in L.R. 5.1, N.D. Ga.
/s/ Daniel P. Pierce Daniel P. Pierce
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CERTIFICATE OF SERVICE
I hereby certify that I have this day filed a true and correct copy of the
within and foregoing AMENDED COMPLAINT FOR DECLARATORY,
MANDAMUS, AND INJUNCTIVE RELIEF by using the Court’s CM/ECF,
which will automatically send e-mail notification of this filing to the following
counsel of record:
Sheetul S. Wall Department of Justice - Office of Immigration Litigation P.O. Box 868 Ben Franklin Station 450 5th Street NW Washington, DC 20044 202-598-2668 Email: Sheetul.S.Wall2@usdoj.gov
I have also sent a copy of this filing by U.S. mail (as pro se prospective amicus is not a registered ECF user) to:
Prof. Victor Williams America First Lawyers Association 5209 Baltimore Ave. Bethesda, MD 20816 301-951-9045 Email: americanfirstlawyers@gmail.com

This 23rd day of March 2017.

/s/ Daniel P. Pierce Daniel P. Pierce

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EXHIBIT A

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The White House Office of the Press Secretary For Immediate Release

January 27, 2017

EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES

EXECUTIVE ORDER
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Protecting the Nation from Foreign Terrorist Entry into the United States
By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:
Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.
Numerous foreign-born individuals have been convicted or implicated in terrorismrelated crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered
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through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.
In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.
Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.
Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security's determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.
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(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.
(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.
(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.
(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.
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(h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order.
Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant's likelihood of becoming a positively contributing member of society and the applicant's ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.
(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date of this order.
Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants
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who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.
(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.
(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.
(d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.
(e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest -- including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship -- and it would not pose a risk to the security or welfare of the United States.
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(f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order.
(g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.
Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda.
Sec. 7. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.
(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section. The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order. Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational.
Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222
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of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.
(b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly affected.
Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by the foreign country, to the extent practicable.
Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter: (i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later;
(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and engaged in terrorismrelated acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period, whichever is later; and
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(iii) information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later; and (iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.
(b) The Secretary of State shall, within one year of the date of this order, provide a report on the estimated long-term costs of the USRAP at the Federal, State, and local levels.
Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. DONALD J. TRUMP
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EXHIBIT B

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The White House Office of the Press Secretary For Immediate Release

March 06, 2017

Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States

EXECUTIVE ORDER
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PROTECTING THE NATION FROM FOREIGN TERRORIS T ENTRY INTO THE UNITED S TATES

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 (INA), 8 U.S .C. 1 1 01 et seq., and section 301 of title 3, United S tates Code, and to protect the Nation from terrorist activities by foreign nationals admitted to the United S tates, it is hereby ordered as follows:
S ection 1 . Policy and Purpose. (a) It is the policy of the United S tates to protect its citizens from terrorist attacks, including those committed by foreign nationals. The screening and vetting protocols and procedures associated with the visa -issuance process and the United S tates Refugee Admissions Program (US RAP) play a crucial role in detecting foreign nationals who may commit, aid, or support acts of terrorism and in preventing those individuals from entering the United S tates. It is therefore the policy of the United S tates to improve the screening and vetting protocols and procedures associated with the visa-issuance process and the US RAP.

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(b) On January 27, 201 7, to implement this policy, I issued Executive Order 1 3769 (Protecting the Nation from Foreign Terrorist Entry into the United S tates).
(i) Among other actions, Executive Order 1 3769 suspended for 90 days the entry of certain aliens from seven countries: Iran, Iraq, Libya, S omalia, S udan, S yria, and Yemen. These are countries that had already been identified as presenting heightened concerns about terrorism and travel to the United S tates. S pecifically, the suspension applied to countries referred to in, or designated under, section 21 7(a)(1 2) of the INA, 8 U.S .C. 1 1 87(a)(1 2), in which Congress restricted use of the Visa Waiver Program for nationals of, and aliens recently pre sent in, (A) Iraq or S yria, (B) any country designated by the S ecretary of S tate as a state sponsor of terrorism (currently Iran, S yria, and S udan), and (C) any other country designated as a country of concern by the S ecretary of Homeland S ecurity, in cons ultation with the S ecretary of S tate and the Director of National Intelligence. In 201 6, the S ecretary of Homeland S ecurity designated Libya, S omalia, and Yemen as additional countries of concern for travel purposes, based on consideration of three statutory factors related to terrorism and national security: "(I) whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United S tates; (II) whether a foreign terrorist organization has a significant presence in the country or area; and (III) whether the country or area is a safe haven for terrorists." 8 U.S .C. 1 1 87(a)(1 2)(D)(ii). Additionally, Members of Congress have expressed concerns about screening and vetting procedures following recent terrorist attacks in this country and in Europe.
(ii) In ordering the temporary suspension of entry described in subsection (b)(i) of this section, I exercised my authority under Article II of the Constitution and under section 21 2(f) of the INA, which provides in relevant part: "Whenever the President finds that the entry of any aliens or of any class of aliens into the United S tates would be detrimental to the interests of the United S tates, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." 8 U.S .C. 1 1 82(f). Under these authorities, I determined that, for a brief period of 90 days, while existing screening and vetting procedures were under review, the entry into the United S tates of certain
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aliens from the seven identified countries -- each afflicted by terrorism in a manner that compromised the ability of the United S tates to rely on normal decision-making procedures about travel to the United S tates -- would be detrimental to the interests of the United S tates. Nonetheless, I permitted the S ecretary of S tate and the S ecretary of Homeland S ecurity to grant case -by-case waivers when they determined that it was in the national interest to do so.
(iii) Executive Order 1 3769 also suspended the US RAP for 1 20 days. Terrorist groups have sought to infiltrate several nations through refugee programs. Accordingly, I temporarily suspended the US RAP pending a review of our procedures for screening and vetting refugees. Nonetheless, I permitted the S ecretary of S tate and the S ecretary of Homeland S ecurity to jointly grant case -bycase waivers when they determined that it was in the national interest to do so.
(iv) Executive Order 1 3769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the US RAP in light of their particular challenges and circumstances.
(c) The implementation of Executive Order 1 3769 has been delayed by litigation. Most significantly, enforcement of critical provisions of that order has been temporarily halted by court orders that apply nationwide and extend even to foreign nationals with no prior or substantial connection to the United S tates. On February 9, 201 7, the United S tates Court of Appeals for the Ninth Circuit declined to stay or narrow one such order pending the outcome of further judicial proceedings, while noting that the "political branches are far better equipped to make appropriate distinctions" about who should be covered by a suspension of entry or of refugee a dmis s ions .
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(d) Nationals from the countries previously identified under section 21 7(a)(1 2) of the INA warrant additional scrutiny in connection with our immigration policies because the conditions in these countries present heightened threats. Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government's willingness or ability to share or validate important information about individuals seeking to travel to the United S tates. Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United S tates. Finally, once foreign nationals from these countries are admitted to the United S tates, it is often difficult to remove them, because many of these countries typically delay issuing, or refuse to issue, travel doc ume nts .
(e) The following are brief descriptions, taken in part from the Department of S tate's Country Reports on Terrorism 201 5 (June 201 6), of some of the conditions in six of the previously designated countries that demonstrate why their nationals continue to present heightened risks to the security of the United S tates:
(i) Iran. Iran has been designated as a state sponsor of terrorism since 1 984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq. Iran has also been linked to support for al-Qa'ida and has permitted alQa'ida to transport funds and fighters through Iran to S yria and S outh Asia. Iran does not cooperate with the United S tates in counterterrorism efforts.
(ii) Libya. Libya is an active combat zone, with hostilitie s between the internationally recognized government and its rivals. In many parts of the country, security and law enforcement functions are provided by armed militias rather than state institutions. Violent extremist groups, including the Islamic S tate of Iraq and S yria
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(IS IS ), have exploited these conditions to expand their presence in the country. The Libyan government provides some cooperation with the United S tates' counterterrorism efforts, but it is unable to secure thousands of miles of its land and maritime borders, enabling the illicit flow of weapons, migrants, and foreign terrorist fighters. The United S tates Embassy in Libya suspended its operations in 201 4.
(iii) S omalia. Portions of S omalia have been terrorist safe havens. Al-S habaab, an al-Qa'ida-affiliated terrorist group, has operated in the country for years and continues to plan and mount operations within S omalia and in neighboring countries. S omalia has porous borders, and most countries do not recognize S omali identity documents. The S omali government cooperates with the United S tates in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists.
(iv) S udan. S udan has been designated as a state sponsor of terrorism since 1 993 because of its support for international terrorist groups, including Hizballah and Hamas. Historically, S udan provided safe havens for al-Qa'ida and other terrorist groups to meet and train. Although S udan's support to al-Qa'ida has ceased and it provides some cooperation with the United S tates' counterterrorism efforts, elements of core al-Qa'ida and IS IS -linked terrorist groups remain active in the country.
(v) S yria. S yria has been designated as a state sponsor of te rrorism since 1 979. The S yrian government is engaged in an ongoing military conflict against IS IS and others for control of portions of the country. At the same time, S yria continues to support other terrorist groups. It has allowed or encouraged extremists to pass through its territory to enter Iraq. IS IS continues to attract foreign fighters to S yria and to use its base in S yria to plot or encourage attacks around the globe, including in the United S tates. The United S tates Embassy in S yria suspended its operations in 201 2. S yria does not cooperate with the United S tates' counterterrorism efforts.
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(vi) Yemen. Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition. Both IS IS and a second group, al-Qa'ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks. Weapons and other materials smuggled across Yemen's porous borders are used to finance AQAP and other terrorist activities. In 201 5, the United S tates Embassy in Yemen suspended its operations, and embassy staff were relocated out of the country. Yemen has been supportive of, but has not been able to cooperate fully with, the United S tates in counterterrorism efforts.
(f) In light of the conditions in these six countries, until the assessment of current screening and vetting procedures required by section 2 of this order is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United S tates is unacceptably high. Accordingly, while that assessment is ongoing, I am imposing a temporary pause on the entry of nationals from Iran, Libya, S omalia, S udan, S yria, and Yemen, subject to categorical exceptions and case -by-case waivers, as described in section 3 of this order.
(g) Iraq presents a special case. Portions of Iraq remain active combat zones. S ince 201 4, IS IS has had dominant influence over significant territory in northern and central Iraq. Although that influence has been significantly reduced due to the efforts and sacrifices of the Iraqi government and armed forces, working along with a United S tates-led coalition, the ongoing conflict has impacted the Iraqi government's capacity to secure its borders and to identify fraudulent travel documents. Nevertheless, the close cooperative relationship between the United S tates and the democratically elected Iraqi government, the strong United S tates diplomatic presence in Iraq, the significant presence of United S tates forces in Iraq, and Iraq's commitment to combat IS IS justify different treatment for Iraq. In particular, those Iraqi government forces that have fought to regain more than half of the territory previously dominated by IS IS have shown steadfast determination and earned enduring respect as they battle an armed group that is the common enemy of Iraq and the United S tates. In addition, since Executive Order 1 3769 was issued, the Iraqi
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government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal. Decisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with IS IS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.
(h) Recent history shows that some of those who have entered the United S tates through our immigration system have proved to be threats to our national security. S ince 2001 , hundreds of persons born abroad have been convicted of terrorism-related crimes in the United S tates. They have included not just persons who came here legally on visas but also individuals who first entered the country as refugees. For example, in January 201 3, two Iraqi nationals admitted to the United S tates as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses. And in October 201 4, a native of S omalia who had been brought to the United S tates as a child refugee and later became a naturalized United S tates citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction as part of a plot to detonate a bomb at a crowded Christmas-tree-lighting ceremony in Portland, Oregon. The Attorney General has reported to me that more than 300 persons who entered the United S tates as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.
(i) Given the foregoing, the entry into the United S tates of foreign nationals who may commit, aid, or support acts of terrorism remains a matte r of grave concern. In light of the Ninth Circuit's observation that the political branches are better suited to determine the appropriate scope of any suspensions than are the courts, and in order to avoid spending additional time pursuing litigation, I am revoking Executive Order 1 3769 and replacing it with this order, which expressly excludes from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens.
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S ec. 2. Temporary S uspension of Entry for Nationals of Countries of Particular Concern During Review Period. (a) The S ecretary of Homeland S ecurity, in consultation with the S ecretary of S tate and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public -safety threat. The S ecretary of Homeland S ecurity may conclude that certain information is needed from particular countries even if it is not needed from every country.
(b) The S ecretary of Homeland S ecurity, in consultation with the S ecretary of S tate and the Director of National Intelligence, shall submit to the President a report on the results of the worldwide review described in subsection (a) of this section, including the S ecretary of Homeland S ecurity's determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of this order. The S ecretary of Homeland S ecurity shall provide a copy of the report to the S ecretary of S tate, the Attorney General, and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections 21 2(f) and 21 5(a) of the INA, 8 U.S .C. 1 1 82(f) and 1 1 85(a), that the unrestricted entry into the United S tates of nationals of Iran, Libya, S omalia, S udan, S yria, and Yemen would be detrimental to the interests of the United S tates. I therefore direct that the entry into the United S tates of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 1 2 of this order.
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(d) Upon submission of the report described in subsection (b) of this section regarding the information needed from each country for adjudications, the S ecretary of S tate shall request that all foreign governments that do not supply such information regarding their nationals begin providing it within 50 days of notification.
(e) After the period described in subsection (d) of this section expires, the S ecretary of Homeland S ecurity, in consultation with the S ecretary of S tate and the Attorney General, shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the S ecretary of Homeland S ecurity certifies that the country has an adequate plan to do so, or has adequately shared information through other means. The S ecretary of S tate, the Attorney General, or the S ecretary of Homeland S ecurity may also submit to the President the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United S tates.
(f) At any point after the submission of the list described in subsection (e) of this section, the S ecretary of Homeland S ecurity, in consultation with the S ecretary of S tate and the Attorney General, may submit to the President the names of any additional countries recommended for similar treatment, as well as the names of any countries that they recommend should be removed from the scope of a proclamation described in subsection (e) of this section.
(g) The S ecretary of S tate and the S ecretary of Homeland S ecurity shall submit to the President a joint report on the progress in implementing this order within 60 days of the effective date of this order, a second report within 90 days of the effective date of this order, a third report within 1 20 days of the effective date of this order, and a fourth report within 1 50 days of the effective date of this order.
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S ec. 3. S cope and Implementation of S uspension.
(a) S cope. S ubject to the exceptions set forth in subsection (b) of this section and any waiver under subsection (c) of this section, the suspension of entry pursuant to section 2 of this order shall apply only to foreign nationals of the designated countries who:
(i) are outside the United S tates on the effective date of this order;
(ii) did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 201 7; and
(iii) do not have a valid visa on the effective date of this order.
(b) Exceptions. The suspension of entry pursuant to section 2 of this order shall not apply to:
(i) any lawful permanent resident of the United S tates;
(ii) any foreign national who is admitted to or paroled into the United S tates on or after the effective date of this order;
(iii) any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United S tates and seek entry or admission, such as an advance parole document;
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(iv) any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country;
(v) any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C -2 visa for travel to the United Nations, or G -1 , G-2, G-3, or G-4 visa; or
(vi) any foreign national who has been granted asylum; any refugee who has already been admitted to the United S tates; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture .
(c) Waivers. Notwithstanding the suspension of entry pursuant to section 2 of this order, a consular officer, or, as appropriate, the Commissioner, U.S . Customs and Border Protection (CBP), or the Commissioner's delegee, may, in the consular officer's or the CBP official's discretion, decide on a case -by-case basis to authorize the issuance of a visa to, or to permit the entry of, a foreign national for whom entry is otherwise suspended if the foreign national has demonstrated to the officer's satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest. Unless otherwise specified by the S ecretary of Homeland S ecurity, any waiver issued by a consular officer as part of the visa issuance process will be effective both for the issuance of a visa and any subsequent entry on that visa, but will leave all other requirements for admission or entry unchanged. Case-by-case waivers could be appropriate in circumstances such as the following:
(i) the foreign national has previously been admitted to the United S tates for a continuous period of work, study, or other long-term activity, is outside the United
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S tates on the effective date of this order, seeks to reenter the United S tates to resume that activity, and the denial of reentry during the suspension period would impair that activity;
(ii) the foreign national has previously established significant contacts with the United S tates but is outside the United S tates on the effective date of this order for work, study, or other lawful activity;
(iii) the foreign national seeks to enter the United S tates for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;
(iv) the foreign national seeks to enter the United S tates to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United S tates citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;
(v) the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
(vi) the foreign national has been employed by, or on behalf of, the United S tates Government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United S tates Government;
(vii) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA),
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22 U.S .C. 288 et seq., traveling for purposes of conducting meetings or business with the United S tates Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;
(viii) the foreign national is a landed Canadian immigrant who applies for a visa at a location within Canada; or
(ix) the foreign national is traveling as a United S tates Government-sponsored exchange visitor.
S ec. 4. Additional Inquiries Related to Nationals of Iraq. An application by any Iraqi national for a visa, admission, or other immigration benefit should be subjected to thorough review, including, as appropriate, consultation with a designee of the S ecretary of Defense and use of the additional information that has been obtained in the context of the close U.S .-Iraqi security partnership, since Executive Order 1 3769 was issued, concerning individuals suspected of ties to IS IS or other terrorist organizations and individuals coming from territories controlled or formerly controlled by IS IS . S uch review shall include consideration of whether the applicant has connections with IS IS or other terrorist organizations or with territory that is or has been under the dominant influence of IS IS , as well as any other information bearing on whether the applicant may be a threat to commit acts of terrorism or otherwise threaten the national security or public safety of the United S tates.
S ec. 5. Implementing Uniform S creening and Vetting S tandards for All Immigration Programs. (a) The S ecretary of S tate, the Attorney General, the S ec retary of Homeland S ecurity, and the Director of National Intelligence shall implement a program, as part of the process for adjudications, to identify individuals who seek to enter the United S tates on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group or class of people within the United S tates, or who present a risk of causing harm subsequent to their entry. This program shall include the development of a uniform baseline for screening and vetting
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standards and procedures, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that applicants are who they claim to be; a mechanism to assess whether applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United S tates; and any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility or grounds for the denial of other immigration benefits.
(b) The S ecretary of Homeland S ecurity, in conjunction with the S ecretary of S tate, the Attorney General, and the Director of National Intelligence, shall submit to the President an initial report on the progress of the program described in subsection (a) of this section within 60 days of the effective date of this order, a second report within 1 00 days of the effective date of this order, and a third report within 200 days of the effective date of this order.
S ec. 6. Realignment of the U.S . Refugee Admissions Program for Fiscal Year 201 7. (a) The S ecretary of S tate shall suspend travel of refugees into the United S tates under the US RAP, and the S ecretary of Homeland S ecurity shall suspend decisions on applications for refugee status, for 1 20 days after the effective date of this order, subject to waivers pursuant to subsection (c) of this section. During the 1 20-day period, the S ecretary of S tate, in conjunction with the S ecretary of Homeland S ecurity and in consultation with the Director of National Intelligence, shall review the US RAP application and adjudication processes to determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United S tates, and shall implement such additional procedures. The suspension described in this subsection shall not apply to refugee applicants who, before the effective date of this order, have been formally scheduled for transit by the Department of S tate. The S ecretary of S tate shall resume travel of re fugees into the United S tates under the US RAP 1 20 days after the effective date of this order, and the S ecretary of Homeland S ecurity shall resume making decisions on applications for refugee status only for stateless
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persons and nationals of countries for which the S ecretary of S tate, the S ecretary of Homeland S ecurity, and the Director of National Intelligence have jointly determined that the additional procedures implemented pursuant to this subsection are adequate to ensure the security and welfare of the United S tates.
(b) Pursuant to section 21 2(f) of the INA, I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 201 7 would be detrimental to the interests of the United S tates, and thus suspend any entries in excess of that number until such time as I determine that additional entries would be in the national interest.
(c) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the S ecretary of S tate and the S ecretary of Homeland S ecurity may jointly determine to admit individuals to the United S tates as refugees on a case -bycase basis, in their discretion, but only so long as they determine that the entry of such individuals as refugees is in the national interest and does not pose a threat to the security or welfare of the United S tates, including in circumstances such as the following: the individual's entry would enable the United S tates to conform its conduct to a preexisting international agreement or arrangement, or the de nial of entry would cause undue hardship.
(d) It is the policy of the executive branch that, to the extent permitted by law and as practicable, S tate and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United S tates as refugees. To that end, the S ecretary of S tate shall examine existing law to determine the extent to which, consistent with applicable law, S tate and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.
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S ec. 7. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The S ecretary of S tate and the S ecretary of Homeland S ecurity shall, in consultation with the Attorney General, consider rescinding the exercises of authority permitted by section 21 2(d)(3)(B) of the INA, 8 U.S .C. 1 1 82(d)(3)(B), relating to the terrorism grounds of inadmissibility, as well as any related implementing directives or guidance.
S ec. 8. Expedited Completion of the Biometric Entry-Exit Tracking S ystem. (a) The S ecretary of Homeland S ecurity shall e xpedite the completion and implementation of a biometric entry-exit tracking system for in-scope travelers to the United S tates, as recommended by the National Commission on Terrorist Attacks Upon the United S tates.
(b) The S ecretary of Homeland S e curity shall submit to the President periodic reports on the progress of the directive set forth in subsection (a) of this section. The initial report shall be submitted within 1 00 days of the effective date of this order, a second report shall be submitted within 200 days of the effective date of this order, and a third report shall be submitted within 365 days of the effective date of this order. The S ecretary of Homeland S ecurity shall submit further reports every 1 80 days thereafter until the system is fully deployed and operational.
S ec. 9. Visa Interview S ecurity. (a) The S ecretary of S tate shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S .C. 1 202, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions. This suspension shall not apply to any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1 , G-2, G-3, or G-4 visa; traveling for purposes related to an international organization designated under the IOIA; or traveling for purposes of conducting meetings or business with the United S tates Government.
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(b) To the extent permitted by law and subject to the availability of appropriations, the S ecretary of S tate shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign S ervice Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that nonimmigrant visa -interview wait times are not unduly a ffe c te d.
S ec. 1 0. Visa Validity Reciprocity. The S ecretary of S tate shall review all nonimmigrant visa reciprocity agreements and arrangements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221 (c) and 281 of the INA, 8 U.S .C. 1 201 (c) and 1 351 , and other treatment. If another country does not treat United S tates nationals seeking nonimmigrant visas in a truly re ciprocal manner, the S ecretary of S tate shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United S tates nationals by that foreign country, to the extent pra c tic a ble .
S ec. 1 1 . Transparency and Data Collection. (a) To be more transparent with the American people and to implement more effectively policies and practices that serve the national interest, the S ecretary of Homeland S ecurity, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available the following information:
(i) information regarding the number of foreign nationals in the United S tates who have been charged with terrorism-related offenses while in the United S tates; convicted of terrorism-related offenses while in the United S tates; or removed from the United S tates based on terrorism-related activity, affiliation with or provision of material support to a terrorism-related organization, or any other national-securityrelated reasons;
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(ii) information regarding the number of foreign nationals in the United S tates who have been radicalized after entry into the United S tates and who have engaged in terrorism-related acts, or who have provided material s upport to terrorism-related organizations in countries that pose a threat to the United S tates;
(iii) information regarding the number and types of acts of gender-based violence against women, including so-called "honor killings," in the United S tates by foreign nationals; and
(iv) any other information relevant to public safety and security as determined by the S ecretary of Homeland S ecurity or the Attorney General, including information on the immigration status of foreign nationals charged with ma jor offenses.
(b) The S ecretary of Homeland S ecurity shall release the initial report under subsection (a) of this section within 1 80 days of the effective date of this order and shall include information for the period from S eptember 1 1 , 2001 , until the date of the initial report. S ubsequent reports shall be issued every 1 80 days thereafter and reflect the period since the previous report.
S ec. 1 2. Enforcement. (a) The S ecretary of S tate and the S ecretary of Homeland S ecurity shall consult with appropriate domestic and international partners, including countries and organizations, to ensure efficient, effective, and appropriate implementation of the actions directed in this order.
(b) In implementing this order, the S ecretary of S tate and the S ecretary of Homeland S ecurity shall comply with all applicable laws and regulations, including, as appropriate, those providing an opportunity for individuals to claim a fear of persecution or torture, such as the credible fear determination for aliens covered by section 235(b)(1 )(A) of the INA, 8 U.S .C. 1 225(b)(1 )(A).
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(c) No immigrant or nonimmigrant visa issued before the effective date of this order shall be revoked pursuant to this order.
(d) Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 1 3769 shall be entitled to a travel document confirming that the individual is permitted to travel to the United S tates and seek entry. Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 1 3769 shall not be the basis of inadmissibility for any future determination about entry or a dmis s ibility.
(e) This order shall not apply to an individual who has been granted asylum, to a refugee who has already been admitted to the United S tates, or to an individual granted withholding of removal or protection under the Convention Against Torture. Nothing in this order shall be construed to limit the ability of an individual to seek asylum, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United S tates.
S ec. 1 3. Revocation. Executive Order 1 3769 of January 27, 201 7, is revoked as of the effective date of this order.
S ec. 1 4. Effective Date. This order is effective at 1 2:01 a.m., eastern daylight time on March 1 6, 201 7.
S ec. 1 5. S everability. (a) If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other persons or circumstances shall not be affected thereby.
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(b) If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural re quire me nts .
S ec. 1 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United S tates, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP
THE WHITE HOUS E, March 6, 201 7. -20-

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EXHIBIT C

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I

FILED IN THE UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
12:32 pm, Mar 15, 2017
SUE BEITIA, CLERK

STATE OF HAWAI‘I and ISMAIL ELSHIKH,
Plaintiffs, vs. DONALD J. TRUMP, et al.,
Defendants.

CV. NO. 17-00050 DKW-KSC
ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER

INTRODUCTION On January 27, 2017, the President of the United States issued Executive Order No. 13,769 entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” See 82 Fed. Reg. 8977 (Jan. 27, 2017). On March 6, 2017, the President issued another Executive Order, No. 13,780, identically entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” (the “Executive Order”). See 82 Fed. Reg. 13209 (Mar. 6, 2017). The Executive Order

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revokes Executive Order No. 13,769 upon taking effect.1 Exec. Order §§ 13, 14. Like its predecessor, the Executive Order restricts the entry of foreign nationals from specified countries and suspends entrants from the United States refugee program for specified periods of time.
Plaintiffs State of Hawai‘i (“State”) and Ismail Elshikh, Ph.D. seek a nationwide temporary restraining order that would prohibit the Federal Defendants2 from “enforcing or implementing Sections 2 and 6 of the Executive Order” before it takes effect. Pls.’ Mot. for TRO 4, Mar. 8, 2017, ECF No. 65.3 Upon evaluation of the parties’ submissions, and following a hearing on March 15, 2017, the Court concludes that, on the record before it, Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief. Accordingly, Plaintiffs’ Motion for TRO (ECF. No. 65) is granted for the reasons detailed below.
1By its terms, the Executive Order becomes effective as of March 16, 2017 at 12:01 a.m., Eastern Daylight Time—i.e., March 15, 2017 at 6:01 p.m. Hawaii Time. Exec. Order § 14. 2Defendants in the instant action are: Donald J. Trump, in his official capacity as President of the United States; the U.S. Department of Homeland Security (“DHS”); John F. Kelly, in his official capacity as Secretary of DHS; the U.S. Department of State; Rex Tillerson, in his official capacity as Secretary of State; and the United States of America. 3Plaintiffs filed a Second Amended Complaint for Declaratory and Injunctive Relief (“SAC”) on March 8, 2017 simultaneous with their Motion for TRO. SAC, ECF. No. 64.
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BACKGROUND I. The President’s Executive Orders
A. Executive Order No. 13,769 Executive Order No. 13,769 became effective upon signing on January 27, 2017. See 82 Fed. Reg. 8977. It inspired several lawsuits across the nation in the days that followed.4 Among those lawsuits was this one: On February 3, 2017, the State filed its complaint and an initial motion for TRO, which sought to enjoin, nationwide, Sections 3(c), 5(a)–(c), and 5(e) of Executive Order No. 13,769. Pls.’ Mot. for TRO, Feb. 3, 2017, ECF No. 2. This Court did not rule on the State’s initial TRO motion because later that same day, the United States District Court for the Western District of Washington entered a nationwide preliminary injunction enjoining the Government from enforcing the same provisions of Executive Order No. 13,769 targeted by the State here. See Washington v. Trump, 2017 WL 462040. As such, the Court stayed this case, effective February 7, 2017, specifying that the stay would continue “as long as
4See, e.g., Mohammed v. United States, No. 2:17-cv-00786-AB-PLA (C.D. Cal. Jan. 31, 2017); City & Cty. of San Francisco v. Trump, No. 3:17-cv-00485-WHO (N.D. Cal. Jan. 31, 2017); Louhghalam v. Trump, Civil Action No. 17-cv-10154, 2017 WL 386550 (D. Mass. Jan. 29, 2017); Int’l Refugee Assistance Project v. Trump, No. 8:17-0361-TDC (D. Md. filed Feb. 7, 2017); Darweesh v. Trump, 17 Civ. 480 (AMD), 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017); Aziz v. Trump, --- F. Supp. 3d ----, 2017 WL 580855 (E.D. Va. Feb. 13, 2017); Washington v. Trump, Case No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017), emergency stay denied, 847 F.3d 1151 (9th Cir. 2017). This list is not exhaustive.
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the February 3, 2017 injunction entered in Washington v. Trump remain[ed] in full force and effect, or until further order of this Court.” ECF Nos. 27 & 32.
On February 4, 2017, the Government filed an emergency motion in the Ninth Circuit Court of Appeals seeking a stay of the Washington TRO, pending appeal.5 See Washington v. Trump, No. 17-35105 (9th Cir. Feb. 4, 2017). The Ninth Circuit heard oral argument on February 7, after which it denied the emergency motion via written Order dated February 9, 2017. See Case No. 17-35105, ECF Nos. 125 (Tr. of Hr’g), 134 (Filed Order for Publication at 847 F.3d 1151).
On March 8, 2017, the Ninth Circuit granted the Government’s unopposed motion to voluntarily dismiss the appeal. See Order, No. 17-35105 (9th Cir. Mar. 8, 2017), ECF No. 187. As a result, the same sections of Executive Order No. 13,769 initially challenged by the State in the instant action remain enjoined as of the date of this Order.
B. The New Executive Order Section 2 of the new Executive Order suspends from “entry into the United States” for a period of 90 days, certain nationals of six countries referred to in Section 217(a)(12) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
5The Government also requested “an immediate administrative stay pending full consideration of the emergency motion for a stay pending appeal” on February 4, 2017 (Emergency Mot. to Stay, No. 17-35105 (9th Cir.), ECF No. 14), which the Ninth Circuit panel swiftly denied (Order, No. 17-35105 (9th Cir.), ECF No. 15).
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§ 1101 et seq.: Iran, Libya, Somalia, Sudan, Syria, and Yemen.6 8 U.S.C. § 1187(a)(12); Exec. Order § 2(c). The suspension of entry applies to nationals of these six countries who (1) are outside the United States on the new Executive Order’s effective date of March 16, 2017; (2) do not have a valid visa on that date, and (3) did not have a valid visa as of 5:00 p.m. Eastern Standard Time on January 27, 2017 (the date of the prior Executive Order, No. 13,769). Exec. Order § 3(a).
The 90-day suspension does not apply to: (1) lawful permanent residents; (2) any foreign national admitted to or paroled into the United States on or after the Executive Order’s effective date (March 16, 2017); (3) any individual who has a document other than a visa, valid on the effective date of the Executive Order or issued anytime thereafter, that permits travel to the United States, such as an advance parole document; (4) any dual national traveling on a passport not issued by one of the six listed countries; (5) any foreign national traveling on a diplomatic-type or other specified visa; and (6) any foreign national who has been granted asylum, any refugee already admitted to the United States, or any individual granted withholding of removal, advance parole, or protection under the Convention Against Torture. See Exec. Order § 3(b).
6Because of the “close cooperative relationship” between the United States and the Iraqi government, the Executive Order declares that Iraq no longer merits inclusion in this list of countries, as it was in Executive Order No. 13,769. Iraq “presents a special case.” Exec. Order § 1(g).
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Under Section 3(c)’s waiver provision, foreign nationals of the six countries
who are subject to the suspension of entry may nonetheless seek entry on a
case-by-case basis. The Executive Order includes the following list of
circumstances when such waivers “could be appropriate:”
(i) the foreign national has previously been admitted to the United States for a continuous period of work, study, or other longterm activity, is outside the United States on the effective date of the Order, seeks to reenter the United States to resume that activity, and denial of reentry during the suspension period would impair that activity;
(ii) the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of the Order for work, study, or other lawful activity;
(iii) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;
(iv) the foreign national seeks to enter the United States to visit a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;
(v) the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
(vi) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of
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such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government;
(vii) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOAI), 22 U.S.C. § 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under IOIA;
(viii) the foreign national is a landed Canadian immigrant who applies for admission at a land border port of entry or a preclearance location located in Canada; or
(ix) the foreign national is traveling as a United States Government sponsored exchange visitor.
Exec. Order § 3(c).
Section 6 of the Executive Order suspends the U.S. Refugee Admissions
Program for 120 days. The suspension applies both to travel into the United States
and to decisions on applications for refugee status for the same period. See Exec.
Order § 6(a). It excludes refugee applicants who were formally scheduled for
transit by the Department of State before the March 16, 2017 effective date. Like
the 90-day suspension, the 120-day suspension includes a waiver provision that
allows the Secretaries of State and DHS to admit refugee applicants on a
case-by-case basis. See Exec. Order § 6(c). The Executive Order identifies
examples of circumstances in which waivers may be warranted, including: where
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the admission of the individual would allow the United States to conform its conduct to a pre-existing international agreement or denying admission would cause undue hardship. Exec. Order § 6(c). Unlike Executive Order No. 13,769, the new Executive Order does not expressly refer to an individual’s status as a “religious minority” or refer to any particular religion, and it does not include a Syria-specific ban on refugees.
Section 1 states that the purpose of the Executive Order is to “protect [United States] citizens from terrorist attacks, including those committed by foreign nationals.” Section 1(h) identifies two examples of terrorism-related crimes committed in the United States by persons entering the country either “legally on visas” or “as refugees”:
[1] In January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses. [2] [I]n October 2014, a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction[.] Exec. Order § 1(h). By its terms, the Executive Order also represents a response to the Ninth Circuit’s decision in Washington v. Trump. See 847 F.3d 1151. According to the Government, it “clarifies and narrows the scope of Executive action regarding
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immigration, extinguishes the need for emergent consideration, and eliminates the potential constitutional concerns identified by the Ninth Circuit.” See Notice of Filing of Executive Order 4–5, ECF No. 56.
It is with this backdrop that we turn to consideration of Plaintiffs’ restraining order application. II. Plaintiffs’ Motion For TRO
Plaintiffs’ Second Amended Complaint (ECF No. 64) and Motion for TRO (ECF No. 65) contend that portions of the new Executive Order suffer from the same infirmities as those provisions of Executive Order No. 13,769 enjoined in Washington, 847 F.3d 1151. Once more, the State asserts that the Executive Order inflicts constitutional and statutory injuries upon its residents, employers, and educational institutions, while Dr. Elshikh alleges injuries on behalf of himself, his family, and members of his Mosque. SAC ¶ 1.
Plaintiffs allege that the Executive Order subjects portions of the State’s population, including Dr. Elshikh and his family, to discrimination in violation of both the Constitution and the INA, denying them their right, among other things, to associate with family members overseas on the basis of their religion and national origin. The State purports that the Executive Order has injured its institutions,
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economy, and sovereign interest in maintaining the separation between church and state. SAC ¶¶ 4–5.
According to Plaintiffs, the Executive order also results in “their having to live in a country and in a State where there is the perception that the Government has established a disfavored religion.” SAC ¶ 5. Plaintiffs assert that by singling out nationals from the six predominantly Muslim countries, the Executive Order causes harm by stigmatizing not only immigrants and refugees, but also Muslim citizens of the United States. Plaintiffs point to public statements by the President and his advisors regarding the implementation of a “Muslim ban,” which Plaintiffs contend is the tacit and illegitimate motivation underlying the Executive Order. See SAC ¶¶ 35–51. For example, Plaintiffs point to the following statements made contemporaneously with the implementation of Executive Order No. 13,769 and in its immediate aftermath:
48. In an interview on January 25, 2017, Mr. Trump discussed his plans to implement “extreme vetting” of people seeking entry into the United States. He remarked: “[N]o, it’s not the Muslim ban. But it’s countries that have tremendous terror. . . . [I]t’s countries that people are going to come in and cause us tremendous problems.” 49. Two days later, on January 27, 2017, President Trump signed an Executive Order entitled, “Protecting the Nation From Foreign Terrorist Entry into the United States.”
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50. The first Executive Order [No. 13,769] was issued without a notice and comment period and without interagency review. Moreover, the first Executive Order was issued with little explanation of how it could further its stated objective.
51. When signing the first Executive Order [No. 13,769], President Trump read the title, looked up, and said: “We all know what that means.” President Trump said he was “establishing a new vetting measure to keep radical Islamic terrorists out of the United States of America,” and that: “We don’t want them here.”
. . . .
58. In a January 27, 2017 interview with Christian Broadcasting Network, President Trump said that persecuted Christians would be given priority under the first Executive Order. He said (once again, falsely): “Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.”
59. The day after signing the first Executive Order [No. 13,769], President Trump’s advisor, Rudolph Giuliani, explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”
60. The President and his spokespersons defended the rushed nature of their issuance of the first Executive Order [No. 13,769] on January 27, 2017, by saying that their urgency was imperative to stop the inflow of dangerous persons to the United States. On January 30, 2017, President Trump tweeted: “If the ban were
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announced with a one week notice, the ‘bad’ would rush into our country during that week.” In a forum on January 30, 2017 at George Washington University, White House spokesman Sean Spicer said: “At the end of the day, what was the other option? To rush it out quickly, telegraph it five days so that people could rush into this country and undermine the safety of our nation?” On February 9, 2017, President Trump claimed he had sought a one-month delay between signing and implementation, but was told by his advisors that “you can’t do that because then people are gonna pour in before the toughness.”
SAC ¶¶ 48–51, 58–60 (footnotes and citations omitted).
Plaintiffs also highlight statements by members of the Administration prior to
the signing of the new Executive Order, seeking to tie its content to Executive Order
No. 13,769 enjoined by the Washington TRO. In particular, they note that:
On February 21, Senior Advisor to the President, Stephen Miller, told Fox News that the new travel ban would have the same effect as the old one. He said: “Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court and those will be addressed. But in terms of protecting the country, those basic policies are still going to be in effect.”
SAC ¶ 74(a) (citing Miller: New order will be responsive to the judicial ruling; Rep.
Ron DeSantis: Congress has gotten off to a slow start, The First 100 Days (Fox
News television broadcast Feb. 21, 2017), transcript available at
https://goo.gl/wcHvHH (rush transcript)). Plaintiffs argue that, in light of these and
similar statements “where the President himself has repeatedly and publicly
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espoused an improper motive for his actions, the President’s action must be invalidated.” Pls.’ Mem. in Supp. of Mot. for TRO 2, ECF No. 65-1.
In addition to these accounts, Plaintiffs describe a draft report from the DHS, which they contend undermines the purported national security rationale for the Executive Order. See SAC ¶ 61 (citing SAC, Ex. 10, ECF No. 64-10). The February 24, 2017 draft report states that citizenship is an “unlikely indicator” of terrorism threats against the United States and that very few individuals from the seven countries included in Executive Order No. 13,769 had carried out or attempted to carry out terrorism activities in the United States. SAC ¶ 61 (citing SAC, Ex. 10, ECF No. 64-10). According to Plaintiffs, this and other evidence demonstrates the Administration’s pretextual justification for the Executive Order.
Plaintiffs assert the following causes of action: (1) violation of the Establishment Clause of the First Amendment (Count I); (2) violation of the equal protection guarantees of the Fifth Amendment’s Due Process Clause on the basis of religion, national origin, nationality, or alienage (Count II); (3) violation of the Due Process Clause of the Fifth Amendment based upon substantive due process rights (Count III); (4) violation of the procedural due process guarantees of the Fifth Amendment (Count IV); (5) violation of the INA due to discrimination on the basis of nationality, and exceeding the President’s authority under Sections 1182(f) and
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1185(a) (Count V); (6) substantially burdening the exercise of religion in violation of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 200bb-1(a) (Count VI); (7) substantive violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 (2)(A)–(C), through violations of the Constitution, INA, and RFRA (Count VII); and (8) procedural violation of the APA, 5 U.S.C. § 706 (2)(D) (Count VIII).
Plaintiffs contend that these alleged violations of law have caused and continue to cause them irreparable injury. To that end, through their Motion for TRO, Plaintiffs seek to temporarily enjoin Defendants from enforcing and implementing Sections 2 and 6 of the Executive Order. Mot. for TRO 4, ECF No. 65. They argue that “both of these sections are unlawful in all of their applications:” Section 2 discriminates on the basis of nationality, Sections 2 and 6 exceed the President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a), and both provisions are motivated by anti-Muslim animus. TRO Mem. 50, Dkt. No. 65-1. Moreover, Plaintiffs assert that both sections infringe “on the ‘due process rights’ of numerous U.S. citizens and institutions by barring the entry of non-citizens with whom they have close relationships.” TRO Mem. 50 (quoting Washington, 847 F.3d at 1166).
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Defendants oppose the Motion for TRO. The Court held a hearing on the matter on March 15, 2017, before the Executive Order was scheduled to take effect.
DISCUSSION I. Plaintiffs Have Demonstrated Standing At This Preliminary Phase
A. Article III Standing Article III, Section 2 of the Constitution permits federal courts to consider only “cases” and “controversies.” Massachusetts v. EPA, 549 U.S. 497, 516 (2007). “Those two words confine ‘the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.’” Id. (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)). “[T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). “At bottom, ‘the gist of the question of standing’ is whether petitioners have ‘such a personal stake in the outcome of the controversy as to assure that concrete
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adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.’” Catholic League for Religious & Civil Rights v. City & Cty. of San Francisco, 624 F.3d 1043, 1048 (9th Cir. 2010) (en banc) (quoting Massachusetts, 549 U.S. at 517)).
“At this very preliminary stage of the litigation, the [Plaintiffs] may rely on the allegations in their Complaint and whatever other evidence they submitted in support of their TRO motion to meet their burden.” Washington, 847 F.3d at 1159 (citing Lujan, 504 U.S. at 561). “With these allegations and evidence, the [Plaintiffs] must make a ‘clear showing of each element of standing.’” Id. (quoting Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013), cert. denied, 134 S. Ct. 907 (2014)). At this preliminary stage of the proceedings, on the record presented, Plaintiffs meet the threshold Article III standing requirements.
B. The State Has Standing The State alleges standing based both upon injuries to its proprietary interests and to its quasi-sovereign interests, i.e., in its role as parens patriae.7 Just as the
7The State’s parens patriae theory focuses on the Executive Order subject[ing] citizens of Hawai‘i like Dr. Elshikh to discrimination and marginalization while denying all residents of the State the benefits of a pluralistic and inclusive society. Hawai‘i has a quasi-sovereign interest in ‘securing [its] residents from the harmful effects of discrimination.’ Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592, 609 (1982). The [Executive] 16

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Ninth Circuit panel in Washington concluded on a similar record that the alleged harms to the states’ proprietary interests as operators of their public universities were sufficient to support standing, the Court concludes likewise here. The Court does not reach the State’s alternative standing theory based on the protection of the interests of its citizens as parens patriae. See Washington, 847 F.3d at 1168 n.5 (“The States have asserted other proprietary interests and also presented an alternative standing theory based on their ability to advance the interests of their citizens as parens patriae. Because we conclude that the States’ proprietary interests as operators of their public universities are sufficient to support standing, we need not reach those arguments.”).
Hawaii primarily asserts two proprietary injuries stemming from the Executive Order. First, the State alleges the impacts that the Executive Order will have on the University of Hawaii system, both financial and intangible. The University is an arm of the State. See Haw. Const. art. 10, §§ 5, 6; Haw. Rev. Stat. (“HRS”) § 304A-103. The University recruits students, permanent faculty, and visiting faculty from the targeted countries. See, e.g., Suppl. Decl. of Risa E. Dickson ¶¶ 6–8, Mot. for TRO, Ex. D-1, ECF No. 66-6. Students or faculty
Order also harms Hawai‘i by debasing its culture and tradition of ethnic diversity and inclusion. TRO Mem. 48, ECF No. 65-1.
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suspended from entry are deterred from studying or teaching at the University, now and in the future, irrevocably damaging their personal and professional lives and harming the educational institutions themselves. See id.
There is also evidence of a financial impact from the Executive Order on the University system. The University recruits from the six affected countries. It currently has twenty-three graduate students, several permanent faculty members, and twenty-nine visiting faculty members from the six countries listed. Suppl. Dickson Decl. ¶ 7. The State contends that any prospective recruits who are without visas as of March 16, 2017 will not be able to travel to Hawaii to attend the University. As a result, the University will not be able to collect the tuition that those students would have paid. Suppl. Dickson Decl. ¶ 8 (“Individuals who are neither legal permanent residents nor current visa holders will be entirely precluded from considering our institution.”). These individuals’ spouses, parents, and children likewise would be unable to join them in the United States. The State asserts that the Executive Order also risks “dissuad[ing] some of [the University’s] current professors or scholars from continuing their scholarship in the United States and at [the University].” Suppl. Dickson Decl. ¶ 9.
The State argues that the University will also suffer non-monetary losses, including damage to the collaborative exchange of ideas among people of different
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religions and national backgrounds on which the State’s educational institutions depend. Suppl. Dickson Decl. ¶¶ 9–10, ECF no. 66-6; see also Original Dickson Decl. ¶ 13, Mot. for TRO, Ex. D-2, ECF, 66-7; SAC ¶ 94. This will impair the University’s ability to recruit and accept the most qualified students and faculty, undermine its commitment to being “one of the most diverse institutions of higher education” in the world, Suppl. Dickson Decl. ¶ 11, and grind to a halt certain academic programs, including the University’s Persian Language and Culture program, id. ¶ 8. Cf. Washington, 847 F.3d at 1160 (“[The universities] have a mission of ‘global engagement’ and rely on such visiting students, scholars, and faculty to advance their educational goals.”).
These types of injuries are nearly indistinguishable from those found to support standing in the Ninth Circuit’s decision in Washington. See 847 F.3d at 1161 (“The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they
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could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement.”).
The second proprietary injury alleged Hawaii alleges is to the State’s main economic driver: tourism. The State contends that the Executive Order will “have the effect of depressing international travel to and tourism in Hawai‘i,” which “directly harms Hawaii’s businesses and, in turn, the State’s revenue.” SAC ¶ 100, ECF No. 64. See also Suppl. Decl. of Luis P. Salaveria ¶¶ 6–10, Mot. for TRO, Ex. C-1, ECF No. 66-4 (“I expect, given the uncertainty the new executive order and its predecessor have caused to international travel generally, that these changing policies may depress tourism, business travel, and financial investments in Hawaii.”). The State points to preliminary data from the Hawaii Tourism Authority, which suggests that during the interval of time that the first Executive Order was in place, the number of visitors to Hawai‘i from the Middle East dropped (data including visitors from Iran, Iraq, Syria and Yemen). See Suppl. Decl. of George Szigeti, ¶¶ 5–8, Mot. for TRO, Ex. B-1, ECF No. 66-2; see also SAC ¶ 100 (identifying 278 visitors in January 2017, compared to 348 visitors from that same region in January 2016).8 Tourism accounted for $15 billion in spending in 2015,
8This data relates to the prior Executive Order No. 13,769. At this preliminary stage, the Court looks to the earlier order’s effect on tourism in order to gauge the economic impact of the new Executive Order, while understanding that the provisions of the two differ. Because the new
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and a decline in tourism has a direct effect on the State’s revenue. See SAC ¶ 18.
Because there is preliminary evidence that losses of current and future revenue are
traceable to the Executive Order, this injury to the State’s proprietary interest also
appears sufficient to confer standing. Cf. Texas v. United States, 809 F.3d 134,
155–56 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016)
(holding that the “financial loss[es]” that Texas would bear, due to having to grant
drivers licenses, constituted a concrete and immediate injury for standing purposes).
For purposes of the instant Motion for TRO, the State has preliminarily
demonstrated that: (1) its universities will suffer monetary damages and intangible
harms; (2) the State’s economy is likely to suffer a loss of revenue due to a decline in
tourism; (3) such harms can be sufficiently linked to the Executive Order; and
(4) the State would not suffer the harms to its proprietary interests in the absence of
implementation of the Executive Order. Accordingly, at this early stage of the litigation, the State has satisfied the requirements of Article III standing.9
Executive Order has yet to take effect, its precise economic impact cannot presently be determined. 9To the extent the Government argues that the State does not have standing to bring an Establishment Clause violation on its own behalf, the Court does not reach this argument. Cf. Washington, 847 F.3d at 1160 n.4 (“The Government argues that the States may not bring Establishment Clause claims because they lack Establishment Clause rights. Even if we assume that States lack such rights, an issue we need not decide, that is irrelevant in this case because the States are asserting the rights of their students and professors. Male doctors do not have personal rights in abortion and yet any physician may assert those rights on behalf of his female patients.” (citing Singleton v. Wulff, 428 U.S. 106, 118 (1976))). Unlike in Washington where there was no
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C. Dr. Elshikh Has Standing Dr. Elshikh is an American citizen of Egyptian descent and has been a resident of Hawai‘i for over a decade. Declaration of Ismail Elshikh ¶ 1, Mot. for TRO, Ex. A, ECF No. 66-1. He is the Imam of the Muslim Association of Hawai‘i and a leader within Hawaii’s Islamic community. Elshikh Decl. ¶ 2. Dr. Elshikh’s wife is of Syrian descent, and their young children are American citizens. Dr. Elshikh and his family are Muslim. Elshikh Decl. ¶¶ 1, 3. His mother-in-law, also Muslim, is a Syrian national without a visa, who last visited the family in Hawaii in 2005. Elshikh Decl. ¶¶ 4–5. In September 2015, Dr. Elshikh’s wife filed an I-130 Petition for Alien Relative on behalf of her mother. On January 31, 2017, Dr. Elshikh called the National Visa Center and learned that his mother-in-law’s visa application had been put on hold and would not proceed to the next stage of the process because of the implementation of Executive Order No. 13,769. Elshikh Decl. ¶ 4. Thereafter, on March 2, 2017, during the pendency of the nationwide injunction imposed by Washington, Dr. Elshikh received an email from the National Visa Center advising that his mother-in-law’s visa application had progressed to the next stage and that her interview would be scheduled at an embassy overseas. Although no date was
individual plaintiff, Dr. Elshikh has standing to assert an Establishment Clause violation, as discussed herein.
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given, the communication stated that most interviews occur within three months. Elshikh Decl. ¶ 4. Dr. Elshikh fears that although she has made progress toward obtaining a visa, his mother-in-law will be unable to enter the country if the new Executive Order is implemented. Elshikh Decl. ¶ 4. According to Plaintiffs, despite her pending visa application, Dr. Elshikh’s mother-in-law would be barred in the short-term from entering the United States under the terms of Section 2(c) of the Executive Order, unless she is granted a waiver, because she is not a current visa holder.
Dr. Elshikh has standing to assert his claims, including an Establishment Clause violation. Courts observe that the injury-in-fact prerequisite can be “particularly elusive” in Establishment Clause cases because plaintiffs do not typically allege an invasion of a physical or economic interest. Despite that, a plaintiff may nonetheless show an injury that is sufficiently concrete, particularized, and actual to confer standing. See Catholic League, 624 F.3d at 1048–49; Vasquez v. Los Angeles Cty., 487 F.3d 1246, 1250 (9th Cir. 2007) (“The concept of a ‘concrete’ injury is particularly elusive in the Establishment Clause context.”). “The standing question, in plain English, is whether adherents to a religion have standing to challenge an official condemnation by their government of their religious views[.] Their ‘personal stake’ assures the ‘concrete adverseness’
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required.” Catholic League, 624 F.3d at 1048–49. In Establishment Clause cases—
[e]ndorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.” Plaintiffs aver that not only does the resolution make them feel like second-class citizens, but that their participation in the political community will be chilled by the [government’s] hostility to their church and their religion. Id. at 1048–49 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring)). Dr. Elshikh attests that he and his family suffer just such injuries here. He declares that the effects of the Executive Order are “devastating to me, my wife and children.” Elshikh Decl. ¶ 6, ECF No. 66-1. Like his children, Dr. Elshikh is “deeply saddened by the message that [both Executive Orders] convey—that a broad travel-ban is ‘needed’ to prevent people from certain Muslim countries from entering the United States.” Elshikh Decl. ¶ 1 (“Because of my allegiance to America, and my deep belief in the American ideals of democracy and equality, I am deeply saddened by the passage of the Executive Order barring nationals from now-six Muslim majority countries from entering the United States.”); id. ¶ 3 ([“My children] are deeply affected by the knowledge that the United States—their own country—would discriminate against individuals who are of the same ethnicity as them, including members of their own family, and who
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hold the same religious beliefs. They do not fully understand why this is happening, but they feel hurt, confused, and sad.”).
“Muslims in the Hawai‘i Islamic community feel that the new Executive Order targets Muslim citizens because of their religious views and national origin. Dr. Elshikh believes that, as a result of the new Executive Order, he and members of the Mosque will not be able to associate as freely with those of other faiths.” SAC ¶ 90. These injuries are sufficiently personal, concrete, particularized, and actual to confer standing in the Establishment Clause context.
The final two aspects of Article III standing—causation and redressability—are also satisfied. Dr. Elshikh’s injuries are traceable to the new Executive Order and, if Plaintiffs prevail, a decision enjoining portions of the Executive Order would redress that injury. See Catholic League, 624 F.3d at 1053. At this preliminary stage of the litigation, Dr. Elshikh has accordingly carried his burden to establish standing under Article III. II. Ripeness
“While standing is primarily concerned with who is a proper party to litigate a particular matter, ripeness addresses when litigation may occur.” Lee v. Oregon, 107 F.3d 1382, 1387 (9th Cir. 1997). “[I]n many cases, ripeness coincides squarely with standing’s injury in fact prong.” Thomas v. Anchorage Equal Rights Comm’n,
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220 F.3d 1134, 1138 (9th Cir. 2000) (en banc). In fact, the ripeness inquiry is often “characterized as standing on a timeline.” Id. “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Texas v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580–81 (1985)).
The Government argues that “the only concrete injury Elshikh alleges is that the Order ‘will prevent [his] mother-in-law’—a Syrian national who lacks a visa—from visiting Elshikh and his family in Hawaii.” These claims are not ripe, according to the Government, because there is a visa waiver process that Elshikh’s mother-in-law has yet to even initiate. Govt. Mem. in Opp’n to Mot. for TRO (citing SAC ¶ 85), ECF No. 145.
The Government’s premise is not true. Dr. Elshikh alleges direct, concrete injuries to both himself and his immediate family that are independent of his mother-in-law’s visa status. See, e.g., SAC ¶¶ 88–90; Elshikh Decl. ¶¶ 1, 3.10 These alleged injuries have already occurred and will continue to occur once the
10There is no dispute that Dr. Elshikh’s mother-in-law does not currently possess a valid visa, would be barred from entering as a Syrian national by Section 2(c) of the Executive Order, and has not yet applied for a waiver under Section 3(c) of the Executive Order. Since the Executive Order is not yet effective, it is difficult to see how she could. None of these propositions, however, alter the Court’s finding that Dr. Elshikh has sufficiently established, at this preliminary stage, that he has suffered an injury-in-fact separate and apart from his mother-in-law that is sufficiently concrete, particularized, and actual to confer standing.
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Executive Order is implemented and enforced—the injuries are not contingent ones. Cf. 281 Care Comm. v. Arneson, 638 F.3d 621, 631 (8th Cir. 2011) (“Plaintiffs’ alleged injury is not based on speculation about a particular future prosecution or the defeat of a particular ballot question. . . . Here, the issue presented requires no further factual development, is largely a legal question, and chills allegedly protected First Amendment expression.”); see also Arizona Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (“[W]hen the threatened enforcement effort implicates First Amendment [free speech] rights, the inquiry tilts dramatically toward a finding of standing.”).
The Court turns to the merits of Plaintiffs’ Motion for TRO. III. Legal Standard: Preliminary Injunctive Relief
The underlying purpose of a TRO is to preserve the status quo and prevent irreparable harm before a preliminary injunction hearing is held. Granny Goose Foods, 415 U.S. 423, 439 (1974); see also Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130–31 (9th Cir. 2006).
The standard for issuing a temporary restraining order is substantially identical to the standard for issuing a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A “plaintiff seeking a preliminary injunction must establish that he is likely to succeed
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on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citation omitted).
“[I]f a plaintiff can only show that there are ‘serious questions going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (emphasis by Shell Offshore)).
For the reasons that follow, Plaintiffs have met this burden here. IV. Analysis of TRO Factors: Likelihood of Success on the Merits
The Court turns to whether Plaintiffs sufficiently establish a likelihood of success on the merits of their Count I claim that the Executive Order violates the Establishment Clause of the First Amendment. Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion,
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in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.11
A. Establishment Clause “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). To determine whether the Executive Order runs afoul of that command, the Court is guided by the three-part test for Establishment Clause claims set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). According to Lemon, government action (1) must have a primary secular purpose, (2) may not have the principal effect of advancing or inhibiting religion, and (3) may not foster excessive entanglement with religion. Id. “Failure to satisfy any one of the three prongs of the Lemon test is sufficient to invalidate the challenged law or practice.” Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007, 1076–77 (9th Cir. 2010). Because the Executive Order at issue here cannot survive the secular purpose prong, the Court does not reach the balance of the criteria. See id. (noting that it is unnecessary to reach the second or third Lemon criteria if the challenged law or practice fails the first test).
11The Court expresses no views on Plaintiffs’ due-process or INA-based statutory claims.
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B. The Executive Order’s Primary Purpose It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order—unlike its predecessor—contain any term or phrase that can be reasonably characterized as having a religious origin or connotation. Indeed, the Government defends the Executive Order principally because of its religiously neutral text —“[i]t applies to six countries that Congress and the prior Administration determined posed special risks of terrorism. [The Executive Order] applies to all individuals in those countries, regardless of their religion.” Gov’t. Mem. in Opp’n 40. The Government does not stop there. By its reading, the Executive Order could not have been religiously motivated because “the six countries represent only a small fraction of the world’s 50 Muslim-majority nations, and are home to less than 9% of the global Muslim population . . . [T]he suspension covers every national of those countries, including millions of non-Muslim individuals[.]” Gov’t. Mem. in Opp’n 42. The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. The Court declines to relegate its Establishment
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Clause analysis to a purely mathematical exercise. See Aziz, 2017 WL 580855, at *9 (rejecting the argument that “the Court cannot infer an anti-Muslim animus because [Executive Order No. 13,769] does not affect all, or even most, Muslims,” because “the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefficient the execution” (citation omitted)). Equally flawed is the notion that the Executive Order cannot be found to have targeted Islam because it applies to all individuals in the six referenced countries. It is undisputed, using the primary source upon which the Government itself relies, that these six countries have overwhelmingly Muslim populations that range from 90.7% to 99.8%.12 It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam. Certainly, it would be inappropriate to conclude, as the Government does, that it does not.
The Government compounds these shortcomings by suggesting that the Executive Order’s neutral text is what this Court must rely on to evaluate purpose. Govt. Mem. in Opp’n at 42–43 (“[C]ourts may not ‘look behind the exercise of [Executive] discretion’ taken ‘on the basis of a facially legitimate and bona fide
12See Pew-Templeton Global Religious Futures Project, Muslim Population by Country (2010), available at http://www.globalreligiousfutures.org/religions/muslims.
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reason.’”). Only a few weeks ago, the Ninth Circuit commanded otherwise: “It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” Washington, 847 F.3d at 1167–68 (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); Larson, 456 U.S. at 254–55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); and Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose)). The Supreme Court has been even more emphatic: courts may not “turn a blind eye to the context in which [a] policy arose.” McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 866 (2005) (citation and quotation signals omitted).13 “[H]istorical context and ‘the specific sequence of events leading up
13In McCreary, the Supreme Court examined whether the posting of successive Ten Commandments displays at two county courthouses violated the Establishment Clause. 545 U.S. at 850–82.
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to’” the adoption of a challenged policy are relevant considerations. Id. at 862; see also Aziz, 2017 WL 580855, at *7.
A review of the historical background here makes plain why the Government wishes to focus on the Executive Order’s text, rather than its context. The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor. For example—
In March 2016, Mr. Trump said, during an interview, “I think Islam hates us.” Mr. Trump was asked, “Is there a war between the West and radical Islam, or between the West and Islam itself?” He replied: “It’s very hard to separate. Because you don’t know who’s who.” SAC ¶ 41 (citing Anderson Cooper 360 Degrees: Exclusive Interview With Donald Trump (CNN television broadcast Mar. 9, 2016, 8:00 PM ET), transcript available at https://goo.gl/y7s2kQ)). In that same interview, Mr. Trump stated: “But there’s a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States. . . [a]nd of people that are not Muslim.” Plaintiffs allege that “[l]ater, as the presumptive Republican nominee, Mr. Trump began using facially neutral language, at times, to describe the Muslim ban.” SAC ¶ 42. For example, they point to a July 24, 2016 interview:
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Mr. Trump was asked: “The Muslim ban. I think you’ve pulled back from it, but you tell me.” Mr. Trump responded: “I don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”
SAC ¶ 44; Ex. 7 (Meet the Press (NBC television broadcast July 24, 2016),
transcript available at https://goo.gl/jHc6aU). And during an October 9, 2016
televised presidential debate, Mr. Trump was asked:
“Your running mate said this week that the Muslim ban is no longer your position. Is that correct? And if it is, was it a mistake to have a religious test?” Mr. Trump replied: “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.” When asked to clarify whether “the Muslim ban still stands,” Mr. Trump said, “It’s called extreme vetting.”
SAC ¶ 45 (citing The American Presidency Project, Presidential Debates:
Presidential Debate at Washington University in St. Louis, Missouri (Oct. 9, 2016),
available at https://goo.gl/iIzf0A)).
The Government appropriately cautions that, in determining purpose, courts
should not look into the “veiled psyche” and “secret motives” of government
decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart
of hearts.” Govt. Opp’n at 40 (citing McCreary, 545 U.S. at 862). The
Government need not fear. The remarkable facts at issue here require no such
34

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impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.[]” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for President, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at https://goo.gl/D3OdJJ)). Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order:
Rudolph Giuliani explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” SAC ¶ 59, Ex. 8. On February 21, 2017, commenting on the then-upcoming revision to the Executive Order, the President’s Senior Adviser, Stephen Miller, stated, “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].” SAC ¶ 74. These plainly-worded statements,14 made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made
14There are many more. See, e.g., Br. of The Roderick and Solange MacArthur Justice Center as Amicus Curiae in Supp. of Pls.’ Mot. for TRO, ECF No. 204, at 19-20 (“It’s not unconstitutional keeping people out, frankly, and until we get a hold of what’s going on. And then if you look at Franklin Roosevelt, a respected president, highly respected. Take a look at Presidential proclamations back a long time ago, 2525, 2526, and 2527 what he was doing with Germans, Italians, and Japanese because he had to do it. Because look we are at war with radical Islam.”)
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by the Executive himself, betray the Executive Order’s stated secular purpose. Any
reasonable, objective observer would conclude, as does the Court for purposes of the
instant Motion for TRO, that the stated secular purpose of the Executive Order is, at
the very least, “secondary to a religious objective” of temporarily suspending the
entry of Muslims. See McCreary, 545 U.S. at 864.15
To emphasize these points, Plaintiffs assert that the stated national security
reasons for the Executive Order are pretextual. Two examples of such pretext
include the security rationales set forth in Section 1(h):
“[I]n January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses.” [Exec. Order] § 1(h). “And in October 2014, a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen was
(quoting Michael Barbaro and Alan Rappeport, In Testy Exchange, Donald Trump Interrupts and ‘Morning Joe’ Cuts to Commercial, New York Times (Dec. 8, 2015), available at https://www.nytimes.com/politics/first-draft/2015/12/08/in-testy-exchange-donaldtrump-interrup ts-and-morning-joe-cuts-to-commercial/)); Br. of Muslim Advocates et al. as Amici Curiae in Supp. of Pls.' Mot. for TRO, ECF No. 198, at 10-11 (“On June 13, 2016, after the attack on a nightclub in Orlando, Florida, Mr. Trump said in a speech: ‘I called for a ban after San Bernardino, and was met with great scorn and anger, but now many are saying I was right to do so.’ Mr. Trump then specified that the Muslim ban would be ‘temporary,’ ‘and apply to certain ‘areas of the world when [sic] there is a proven history of terrorism against the United States, Europe or our allies, until we understand how to end these threats.’”) (quoting Transcript: Donald Trump’s national security speech, available at http://www.politico.com/story/2016/06/ transcript-donald-trump-national-security-speech-22427). 15This Court is not the first to examine these issues. In Aziz v. Trump, United States District Court Judge Leonie Brinkema determined that plaintiffs were likely to succeed on the merits of their Establishment Clause claim as it related to Executive Order No. 13,769. Accordingly, Judge Brinkema granted the Commonwealth of Virginia’s motion for preliminary injunction. Aziz v. Trump, ___ F. Supp. 3d ___, 2017 WL 580855, at *7–*10 (E.D. Va. Feb. 13, 2017).
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sentenced to 30 years in prison for attempting to use a weapon of mass destruction[.]” Id. Iraq is no longer included in the ambit of the travel ban, id., and the Order states that a waiver could be granted for a foreign national that is a “young child.” Id. § 3(c)(v). TRO Mem. 13. Other indicia of pretext asserted by Plaintiffs include the delayed timing of the Executive Order, which detracts from the national security urgency claimed by the Administration, and the Executive Order’s focus on nationality, which could have the paradoxical effect of “bar[ring] entry by a Syrian national who has lived in Switzerland for decades, but not a Swiss national who has immigrated to Syria during its civil war,” revealing a “gross mismatch between the [Executive] Order’s ostensible purpose and its implementation and effects.” Pls.’ Reply 20 (citation omitted). While these additional assertions certainly call the motivations behind the Executive Order into greater question,16 they are not necessary to the Court’s Establishment Clause determination. See Aziz, 2017 WL 580855, at *8 (the Establishment Clause concerns addressed by the district court’s order “do not involve an assessment of the merits of the president’s national security judgment. Instead, the question is whether [Executive Order No. 13,769] was animated by
16See also Br. of T.A., a U.S. Resident of Yemeni Descent, as Amicus Curiae in Supp. of Pls.’ Mot. for TRO, ECF No. 200, at 15-25 (detailing evidence contrary to the Executive Order’s national security justifications).
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national security concerns at all, as opposed to the impermissible notion of, in the context of entry, disfavoring one religious group, and in the context of refugees, favoring another religious group”).
Nor does the Court’s preliminary determination foreclose future Executive action. As the Supreme Court noted in McCreary, in preliminarily enjoining the third iteration of a Ten Commandments display, “we do not decide that the [government’s] past actions forever taint any effort on their part to deal with the subject matter.” McCreary, 545 U.S. at 873–74; see also Felix v. City of Bloomfield, 841 F.3d 848, 863 (10th Cir. 2016) (“In other words, it is possible that a government may begin with an impermissible purpose, or create an unconstitutional effect, but later take affirmative actions to neutralize the endorsement message so that “adherence to a religion [is not] relevant in any way to a person’s standing in the political community.” (quoting Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring))). Here, it is not the case that the Administration’s past conduct must forever taint any effort by it to address the security concerns of the nation. Based upon the current record available, however, the Court cannot find the actions taken during the interval between revoked Executive Order No. 13,769 and the new Executive Order to be “genuine changes in constitutionally significant
38

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conditions.” McCreary, 545 U.S. at 874.17 The Court recognizes that “purpose needs to be taken seriously under the Establishment Clause and needs to be understood in light of context; an implausible claim that governmental purpose has changed should not carry the day in a court of law any more than in a head with common sense.” Id. Yet, context may change during the course of litigation, and the Court is prepared to respond accordingly.
Last, the Court emphasizes that its preliminary assessment rests on the peculiar circumstances and specific historical record present here. Cf. Aziz, 2017 WL 580855, at *9 (“The Court’s conclusion rests on the highly particular ‘sequence of events’ leading to this specific [Executive Order No. 13,769] and the dearth of evidence indicating a national security purpose. The evidence in this record focuses on the president’s statements about a ‘Muslim ban’ and the link Giuliani
17The Tenth Circuit asked: “What would be enough to meet this standard?” The case law does not yield a ready answer. But from the above principles we conclude that a government cure should be (1) purposeful, (2) public, and (3) at least as persuasive as the initial endorsement of religion. It should be purposeful enough for an objective observer to know, unequivocally, that the government does not endorse religion. It should be public enough so that people need not burrow into a difficult-to-access legislative record for evidence to assure themselves that the government is not endorsing a religious view. And it should be persuasive enough to countermand the preexisting message of religious endorsement.
Felix, 841 F.3d 863–64. 39

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established between those statements and the [Executive Order].”) (citing McCreary, 545 U.S. at 862). V. Analysis of TRO Factors: Irreparable Harm
Dr. Elshikh has made a preliminary showing of direct, concrete injuries to the exercise of his Establishment Clause rights. See, e.g., SAC ¶¶ 88–90; Elshikh Decl. ¶¶ 1, 3. These alleged injuries have already occurred and likely will continue to occur upon implementation of the Executive Order.
Indeed, irreparable harm may be presumed with the finding of a violation of the First Amendment. See Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); see also Washington, 847 F.3d at 1169 (citing Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’”)) (additional citations omitted). Because Dr. Elshikh is likely to succeed on the merits of his Establishment Clause claim, the Court finds that the second factor of the Winter test is satisfied—that Dr. Elshikh is likely to suffer irreparable injury in the absence of a TRO.
40

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VI. Analysis of TRO Factors: The Balance of Equities and Public Interest Weigh in Favor of Granting Emergency Relief The final step in determining whether to grant the Plaintiffs’ Motion for TRO
is to assess the balance of equities and examine the general public interests that will be affected. Here, the substantial controversy surrounding this Executive Order, like its predecessor, illustrates that important public interests are implicated by each party’s positions. See Washington, 847 F.3d at 1169. For example, the Government insists that the Executive Order is intended “to protect the Nation from terrorist activities by foreign nationals admitted to the United States[.]” Exec. Order, preamble. National security is unquestionably important to the public at large. Plaintiffs and the public, on the other hand, have a vested interest in the “free flow of travel, in avoiding separation of families, and in freedom from discrimination.” Washington, 847 F.3d at 1169–70.
As discussed above, Plaintiffs have shown a strong likelihood of succeeding on their claim that the Executive Order violates First Amendment rights under the Constitution. “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Melendres, 695 F.3d at 1002 (emphasis added) (citing Elrod, 427 U.S. at 373); Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) (“[E]nforcement of an unconstitutional law is always contrary to the public
41

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interest.” (citing Lamprecht v. FCC, 958 F.2d 382, 390 (D.C. Cir. 1992); G & V Lounge v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994).
When considered alongside the constitutional injuries and harms discussed above, and the questionable evidence supporting the Government’s national security motivations, the balance of equities and public interests justify granting the Plaintiffs’ TRO. See Aziz, 2017 WL 580855, at * 10. Nationwide relief is appropriate in light of the likelihood of success on the Establishment Clause claim.
CONCLUSION Based on the foregoing, Plaintiffs’ Motion for TRO is hereby GRANTED.
TEMPORARY RESTRAINING ORDER It is hereby ADJUDGED, ORDERED, and DECREED that:
Defendants and all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them, are hereby enjoined from enforcing or implementing Sections 2 and 6 of the Executive Order across the Nation. Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court.
No security bond is required under Federal Rule of Civil Procedure 65(c).
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The Court declines to stay this ruling or hold it in abeyance should an emergency appeal of this order be filed.
Pursuant to Federal Rule of Civil Procedure 65(b)(2), the Court intends to set an expedited hearing to determine whether this Temporary Restraining Order should be extended. The parties shall submit a stipulated briefing and hearing schedule for the Court’s approval forthwith.
IT IS SO ORDERED. Dated: March 15, 2017 at Honolulu, Hawai‘i.
State of Hawaii, et al. v. Trump, et al.; CV 17-00050 DKW-KSC; ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER
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Case 1:17-cv-00353-TCB Document 33-4 Filed 03/23/17 Page 1 of 47
EXHIBIT D

CCaassee18:1:177-c-cvv-0-000335631-T-TCDBC DDooccuummeennt t3135-40 FFiilleedd 0033//2136//1177 PPaaggee 21 ooff 437

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, a project of the Urban Justice Center, Inc., on behalf of itself and its clients, HIAS, INC., on behalf of itself and its clients, MIDDLE EAST STUDIES ASSOCIATION of North America, Inc., on behalf of itself and its members, MUHAMMED METEAB, PAUL HARRISON, IBRAHIM AHMED MOHOMED, JOHN DOES Nos. 1 & 3, and JANE DOE No.2,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF STATE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, JOHN F. KELLY, in his official capacity as Secretary of Homeland Security, REX W. TILLERSON, in his official capacity as Secretary of State, and MICHAEL DEMPSEY, in his official capacity as Acting Director of National Intelligence,
Defendants.

Civil Action No. TDC-17-0361

ORDER For the reasons stated in the accompanying Memorandum Opinion, the Court finds that the Plaintiffs have standing to maintain this civil action and have established that they are likely

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to prevail on the merits, that they are likely to suffer irreparable harm in the absence of injunctive relief, and that the balance of the equities and the public interest favor an injunction.
Accordingly, it is hereby ORDERED that: 1. Plaintiffs' Motion for a Preliminary Injunction and/or Temporary Restraining
Order of the Executive Order is construed as a Motion for a Preliminary Injunction. 2. The Motion, ECF No. 95, is GRANTED IN PART and DENIED IN PART. 3. The Motion is GRANTED as to Section 2(c) of Executive Order 13,780 ("Executive Order Protecting the Nation from Foreign Terrorist Entry Into the United States"). Defendants, and all officers, agents, and employees of the Executive Branch of the United States government, and anyone acting under their authorization or direction, are ENJOINED from enforcing Section 2(c) of Executive Order 13,780. 4. This Preliminary Injunction is granted on a nationwide basis and prohibits the enforcement of Section 2(c) of Executive Order 13,780 in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas, pending further orders from this court. 5. Plaintiffs are not required to pay a security deposit. 6. The Court declines to stay this ruling or hold it in abeyance should an emergency appeal of this Order be filed.
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CCaassee18:1:177-c-cvv-0-000335631-T-TCDBC DDooccuummeennt t3135-40 FFiilleedd 0033//2136//1177 PPaaggee 43 ooff 437 7. The Motion is DENIED as to all other provisions of Executive Order 13,780.

Date: March 15,2017

THEODORE D. CH United States District

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UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, a project of the Urban Justice Center, Inc., on behalf of itself and its clients, HIAS, INC., on behalf of itself and its clients, MIDDLE EAST STUDIES ASSOCIATION of North America, Inc., on behalf of itself and its members, MUHAMMED METEAB, PAUL HARRISON, IBRAHIM AHMED MOHOMED, JOHN DOES Nos. 1 & 3, and JANE DOE No.2,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States, DEPARTMENT OF HOMELAND SECURITY, DEPARTMENT OF STATE, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, JOHN F. KELLY, in his official capacity as Secretary of Homeland Security, REX W. TILLERS ON, in his official capacity as Secretary of State, and MICHAEL DEMPSEY, in his official capacity as Acting Director of National Intelligence,
Defendants.

Civil Action No. TDC-17-0361

MEMORANDUM OPINION On March 6, 2017, President Donald J. Trump issued an Executive Order which bars, with certain exceptions, the entry to the United States of nationals of six predominantly Muslim

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countries, suspends the entry of refugees for 120 days, and cuts by more than half the number of refugees to be admitted to the United States in the current year. This Executive Order follows a substantially similar Executive Order that is currently the subject of multiple injunctions premised on the conclusion that it likely violates various provisions of the United States Constitution. Pending before the Court is Plaintiffs' Motion for a Temporary Restraining Order or a Preliminary Injunction, filed on March 10,2017. At issue is whether the President's revised Executive Order, set to take effect on March 16, 2017, should likewise be halted because it violates the Constitution and federal law. For the reasons set forth below, the Motion is GRANTED IN PART and DENIED IN PART.
INTRODUCTION On January 27, 2017, President Trump issued Executive Order 13,769, "Protecting the Nation from Foreign Terrorist Entry into the United States" ("First Executive Order" or "First Order"), 82 Fed. Reg. 8977 (Jan. 27, 2017). On February 7, 2017, Plaintiffs filed a Complaint alleging that the First Executive Order violated the Establishment Clause of the First Amendment to the United States Constitution, U.S. Const. amend. I; the equal protection component of the Due Process Clause of the Fifth Amendment, U.S. Const. amend. V; the
Immigration and Nationality Act ("INA"), 8 U.S.C. SS 1101-1537 (2012); the Religious Freedom Restoration Act, 42 U.S.C. SS 2000bb to 2000bb-4 (2012); the Refugee Act, 8 U.S.C. SS 1521-1524 (2012); and the Administrative Procedure Act ("APA"), 5 U.S.C. SS 701-706
(2012). On March 6, 2017, in the wake of several successful legal challenges to the First Executive Order, President Trump issued Executive Order 13,780 ("Second Executive Order" or "Second Order"), which bears the same title as the First Executive Order. 82 Fed. Reg. 13209
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(Mar. 9, 2017). The Second Executive Order, by its own terms, is scheduled to go into effect

and supplant the First Executive Order on March 16, 2017.

On March 10, 2017, Plaintiffs amended their Complaint to seek the invalidation of the

Second Executive Order. Plaintiffs substituted certain individual plaintiffs and added an

organizational plaintiff. Their causes of action remain the same. That same day, Plaintiffs filed

the pending Motion, seeking to enjoin the Second Executive Order in its entirety before it takes

effect. Defendants have received notice of the Motion and filed a brief in opposition to it on

March 13,2017. After Plaintiffs filed a reply brief on March 14,2017, the Court held a hearing

on the Motion on March 15,2017. With the matter fully briefed and argued, the Court construes

the Motion as a Motion for a Preliminary Injunction. The Court now issues its findings of fact

and conclusions of law and rules on the Motion. I

FINDINGS OF FACT

I.

Executive Order 13,769

The stated purpose of the First Executive Order is to "protect the American people from

terrorist attacks by foreign nationals admitted to the United States." 1st Order Preamble. To that

end, the First Executive Order states that the United States must be "vigilant during the visa-

issuance process," a process that "plays a crucial role in detecting individuals with terrorist ties
and stopping them from entering the United States." 1st Order S 1. The First Executive Order

therefore mandates, as relevant here, two courses of action. The first, set forth in Section 3

I On February 22,2017, Plaintiffs filed a Motion for a Preliminary Injunction of S 5(d) of the
Executive Order, ECF No. 64, requesting that the Court enjoin a specific provision of the First Executive Order. With the agreement of the parties, the Court set a briefing and hearing schedule extending to March 28, 2017. The Court will resolve that Motion, which the parties have agreed should be construed to apply to the successor provision of the Second Executive Order, in accordance with the previously established schedule.
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entitled "Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of
Countries of Particular Concern," invokes the President's authority under 8 U.S.C. S 1182(f) to
suspend for 90 days "the immigrant and nonimmigrant entry into the United States of aliens" from the countries of Iraq, Iran, Libya, Sudan, Somalia, Syria, and Yemen as "detrimental to the
interests of the United States." 1st Order S 3(c). Each of these countries has a predominantly
Muslim population, including Iraq, Iran, and Yemen which are more than 99 percent Muslim. In addition to providing certain exceptions for diplomatic travel, the provision contains exceptions on a "case-by-case basis" when such an exception is "in the national interest," a term not defined
elsewhere in the Order. 1st Order S 3(g). During this 90-day period, the Secretary of Homeland
Security, the Secretary of State, and the Director of National Intelligence are to "immediately conduct a review to determine the information needed from any country" to assess whether an individual from that country applying for a "visa, admission, or other benefit ... is not a security or public-safety threat" and provide a report on their review to the President within 30 days of
the issuance of the Order. 1st Order S 3(a)-(b).
The second course of action relates to refugees. As set out in Section 5(d), the President
ordered, pursuant to S 1182(f), that "the entry of more than 50,000 refugees in fiscal year 2017
would be detrimental to the interests of the United States" and thus suspended the entry of any
refugees above that figure. 1st Order S 5(d). The Order also immediately suspended the U.S.
Refugee Admissions Program ("USRAP") for 120 days and imposed an indefinite ban on the entry of refugees from Syria. The Order further required changes to the refugee screening process "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." 1st Order S 5(b).
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The drafting process for the First Executive Order did not involve traditional interagency review by relevant departments and agencies. In particular, there was no consultation with the Department of State, the Department of Defense, the Department of Justice, or the Department of Homeland Security. When the Order was issued in the early evening of Friday, January 27, 2017, the State Department immediately stopped conducting visa interviews of, and processing visa applications from, citizens of any of the seven banned countries. Between 60,000 and 100,000 visas have been revoked. II. Legal Challenges to the First Executive Order
The First Executive Order prompted numerous legal challenges, including an action filed by the State of Washington and the State of Minnesota in the United States District Court for the Western District of Washington based on the Due Process, Establishment, and Equal Protection Clauses of the Constitution that resulted in a nationwide temporary restraining order against several sections of the First Order. On February 9, 2017, the United States Court of Appeals for the Ninth Circuit, construing the order as a preliminary injunction, upheld the entry of the injunction. Washington v. Trump, 847 F.3d 1151, 1165-66 (9th Cir. 2017). Although it did not reach the Establishment Clause claim, the Ninth Circuit noted that the asserted claim raised "serious allegations" and presented "significant constitutional questions." Id. at 1168. On February 13,2017, the United States District Court for the Eastern District of Virginia found that plaintiffs had shown a likelihood of success on the merits of an Establishment Clause claim and issued an injunction against enforcement of Section 3(c) of the First Executive Order as to Virginia residents or students enrolled a Virginia state educational institution. Aziz v. Trump, --F. Supp. 3d ---, NO.1 :17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13,2017). These injunctions remain in effect.
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III. Executive Order 13,780 On March 6, 2017, President Trump issued a revised Executive Order, to become
effective on March 16, 2017, at which point the First Executive Order will be revoked. 2d Order
SS 13, 14. The Second Executive Order reinstates the 90-day ban on travel for citizens ofIran,
Libya, Somalia, Sudan, Syria, and Yemen ("the Designated Countries"), but removes Iraq from the list based on its recent efforts to enhance its travel documentation procedures and ongoing cooperation between Iraq and the United States in fighting ISIS. The scope of the ban, however,
was narrowed expressly to respond to "judicial concerns." 2d Order S (l)(i). The Order states
that it applies only to individuals outside the United States who did not have a valid visa as of the issuance of the First Executive Order and who have not obtained one prior to the effective date of the Second Executive Order. In addition, the travel ban expressly exempts lawful permanent residents ("LPRs"), dual citizens traveling under a passport issued by a country not on the banned list, asylees, and refugees already admitted to the United States. The Second Executive Order also provides a list of specific situations in which a case-by-case waiver "could be
appropriate." 2d Order S 3(c).
The refugee provisions continue to suspend USRAP for 120 days and to reduce the number of refugees to be admitted in fiscal year 2017 to 50,000. However, the minority religion preferences in refugee applications and the complete ban on Syrian refugees have been removed entirely.
Unlike the First Executive Order, the Second Executive Order provides certain information relevant to the national security concerns underlying the decision to ban the entry of citizens of the Designated Countries. The Second Order notes that "the conditions in these
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countries present heightened threats" because each country is "a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones." 2d
Order S led). It provides information from the State Department's Country Reports on
Terrorism 2015 identifying Iran, Sudan, and Syria as longstanding state sponsors of terrorism and describing the presence of members of certain terrorist organizations within those countries. The asserted consequences of these conditions are that the governments of these nations are less willing or less able to provide necessary information for the visa or refugee vetting process, and there is a heightened chance that individuals from these countries will be "terrorist operatives or
sympathizers." 2d Order S (l)(d). In light of these factors, the Second Order concludes, the
United States is unable "to rely on normal decision-making procedures about travel" as to individuals from these nations, making the present risk of admitting individuals from these
countries "unacceptably high." 2d Order S l(b)(ii), (t). The Second Order expressly disavows
that the First Executive Order was motivated by religious animus. The Second Order also states that "Since 200 I, hundreds of persons born abroad have
been convicted of terrorism-related crimes in the United States" and references two Iraqi refugees who were convicted of terrorism-related offenses and a naturalized U.S. citizen who came to the United States from Somalia as a child refugee and has been convicted of a plot to
detonate a bomb at a Christmas tree lighting ceremony. 2d Order S I (h). The Second Order
further states that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations. It does not identify any instances of individuals who came from Iran, Libya, Sudan, Syria, or Yemen engaging in terrorist activity in the United States.
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The same day that the Second Executive Order was issued, Attorney General Jeff Sessions and Secretary of Homeland Security John Kelly submitted a letter to the President recommending a temporary suspension on the entry to the United States of nationals of certain countries so as to facilitate a review of security risks in the immigration system, for reasons that largely mirror the statements contained in the Second Executive Order. IV. Public Statements About the Executive Orders
On December 7, 2015, then-presidential candidate Donald Trump posted a "Statement on Preventing Muslim Immigration" on his campaign website in which he "call [ed) for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on." J.R. 85. Trump promoted the Statement on Twitter that same day, stating that he had "[j]ust put out a very important policy statement on the extraordinary influx of hatred & danger coming into our country. We must be vigilant!" J.R. 209. In a March 9, 2016 interview with CNN, Trump professed his belief that "Islam hates us," and that the United States had "allowed this propaganda to spread all through the country that [Islam) is a religion of peace." J.R. 255-57. Then, in a March 22, 2016 Fox Business interview, Trump reiterated his call for a ban on Muslim immigration, explaining that his call for the ban had gotten "tremendous support" and that "we're having problems with the Muslims, and we're having problems with Muslims coming into the country." J.R. 261. In a July 24, 2016 interview on Meet the Press soon after he accepted the Republican nomination, Trump asserted that immigration should be immediately suspended "from any nation that has been compromised by terrorism." J.R. 219. When questioned whether his new formulation was a "rollback" of his December 2015 call for a "Muslim ban," Trump characterized it instead as an "expansion." J.R. 220. He explained that "[p )eople were so upset when I used the word Muslim," so he was
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instead "talking territory instead of Muslim." 1.R. 220. On December 21, 2016, when asked whether a recent attack in Germany affected his proposed Muslim ban, President-Elect Trump replied, "You know my plans. All along, I've proven to be right. 100% correct." 1.R. 245. In a written statement about the events, he lamented the attack on people "prepared to celebrate the Christmas holiday" by "ISIS and other Islamic terrorists [who] continually slaughter Christians in their communities and places of worship as part of their global jihad." 1.R. 245.
On lanuary 27, 2017, a week after his inauguration, President Trump stated in an interview on the Christian Broadcasting Network that the First Executive Order would give preference in refugee applications to Christians. Referring to Syria, President Trump stated that "[i]f you were a Muslim you could come in, but if you were a Christian, it was almost impossible," a situation that he thought was "very, very unfair." 1.R. 201. When President Trump was preparing to sign the First Executive Order later that day, he remarked, "This is the 'Protection of the Nation from Foreign Terrorist Entry into the United States.' We all know what that means." 1.R. 142 The day after the Order was issued, former New York City Mayor Rudolph W. Giuliani appeared on Fox News and asserted that President Trump told him he wanted a Muslim ban and asked Giuliani to "[s]how me the right way to do it legally." 1.R. 247. Giuliani, in consultation with others, proposed that the action be "focused on, instead of religion ... the areas of the world that create danger for us," specifically "places where there are [sic] substantial evidence that people are sending terrorists into our country." 1.R.247-248.
In response to the court-issued injunctions against provisions of the First Executive Order, President Trump maintained at a February 16, 2017 news conference that the First Executive Order was lawful but that a new Order would be issued. 1.R. 91. Stephen Miller, Senior Policy Advisor to the President, described the changes being made to the Order as
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"mostly minor technical differences," emphasizing that the "basic policies are still going to be in effect." J.R. 319. White House Press Secretary Sean Spicer stated that "[t]he principles of the [second] executive order remain the same." J.R. 118. As of February 12, 2017, Trump's Statement on Preventing Muslim Immigration remained on his campaign website. J.R. 207.
Upon the issuance of the Second Executive Order, Secretary of State Rex Tillerson described it as "a vital measure for strengthening our national security." J.R. 115. In a March 7, 2017 interview, Secretary of Homeland Security Kelly stated that the Order was not a Muslim ban but instead was focused on countries with "questionable vetting procedures," then noted that there are 13 or 14 countries with questionable vetting procedures, "not all of them Muslim countries and not all of them in the Middle East." J.R. 150.
In a joint affidavit, 10 former national security, foreign policy, and intelligence officials who served in the White House, Department of State, Department of Homeland Security, and Central Intelligence Agency in Republican and Democratic Administrations, four of whom were aware of the available intelligence relating to potential terrorist threats to the United States as of January 19, 2017, have stated that "there is no national security purpose for a total bar on entry for aliens" from the Designated Countries and that they are unaware of any prior example of a president suspending admission for such a "broad class of people." J.R. 404, 406. The officials note that no terrorist acts have been committed on U.S. soil by nationals of the banned countries since September 11, 2001, and that no intelligence as of January 19, 2017 suggested any such potential threat. Nor, the former officials assert, is there any rationale for the abrupt shift from individualized vetting to group bans. J.R. 404.
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v. The Plaintiffs
Plaintiffs, comprised of six individuals and three organizations, assert that they will be harmed by the implementation of the Second Executive Order. Collectively, they assert that because the Individual Plaintiffs are Muslim and the Organizational Plaintiffs serve or represent Muslim clients or members, the anti-Muslim animus underlying the Second Executive Order inflicts stigmatizing injuries on them all. The Individual Plaintiffs, who each have one or more relatives who are nationals of one of the Designated Countries and are currently in the process of seeking permission to enter the United States, also claim that if the Second Executive Order is allowed to go into effect, their separation from their loved ones, many of whom live in dangerous conditions, will be unnecessarily prolonged.
Two of the Organizational Plaintiffs, the Hebrew Immigrant Aid Society and the International Refugee Assistance Project, which provide services to refugees, assert that injuries they have suffered under the First Executive Order will continue if the Second Executive Order goes into effect, including lost revenue arising from a reduction in refugee cases that may necessitate reductions in staff. They also assert that their clients, many of whom are refugees now re-settled in the United States, will be harmed by prolonged separation from relatives in the Designated Countries currently seeking to join them. Plaintiff Middle East Studies Association, many of whose members are nationals of one of the Designated Countries, claims that the Second Executive Order would make it more difficult for certain members to travel for academic conferences and field work, and that the inability of its members to enter the United States threatens to cripple its annual conference, on which it relies for a large portion of its yearly revenue.
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In light of these alleged imminent harms, Plaintiffs now ask this Court to preliminarily

enjoin enforcement of the Second Executive Order.

. CONCLUSIONS OF LAW

In this Motion, Plaintiffs seek a preliminary injunction based on their claims that the

Second Executive Order violates (1) the Immigration and Nationality Act and (2) the

Establishment Clause.

I.

Standing

Article III of the Constitution limits the judicial power of the federal courts to actual
"Cases" or "Controversies." U.S. Const. art. III, S 2, cl. 1. To invoke this power, a litigant must

have standing. Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013). A plaintiff establishes

standing by demonstrating (1) a "concrete and particularized" injury that is "actual or imminent,"

(2) "fairly traceable to the challenged conduct," (3) and "likely to be redressed by a favorable

judicial decision." Id.; Covenant Media ofS.C., LLC v. City ofN Charleston, 493 F.3d 421, 428

(4th Cir. 2007). Standing must be demonstrated for each claim. Bostic v. Schaefer, 760 F.3d

352,370 (4th Cir. 2014). The presence of one plaintiff with standing renders a claim justiciable.

Id. at 370-71.

A. Immigration and Nationality Act

Several Individual Plaintiffs, specifically John Doe NO.1, John Doe NO.3 and Jane Doe

No.2, have standing to assert the claim that the travel ban for citizens of the Designated

Countries violates the INA's prohibition on discrimination in the issuance of immigrant visas on
the basis of nationality, 8 U.S.C. S 1152(a). These Individual Plaintiffs are all U.S. citizens or

lawful permanent residents who have sponsored relatives who are citizens of one of the

Designated Countries and now seek immigrant visas to enter the United States. They argue that

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the delay or denial of the issuance of visas will cause injury in the form of continued separation from their family members. Cf Covenant Media, 493 F.3d at 428 (stating that not having an application processed in a timely manner is a form of cognizable injury).
Although neither the United States Supreme Court nor the United States Court of Appeals for the Fourth Circuit has explicitly endorsed this basis for standing, the Supreme Court has reviewed the merits of cases brought by U.S. residents with a specific interest in the entry of a foreigner challenging the application of the immigration laws to that foreign individual. See Kerry v. Din, 135 S. Ct. 2128, 2131, 2138-42 (2015) (considering an action brought by a U.S. citizen challenging the denial of her husband's visa that failed to result in a majority of the Court agreeing whether the plaintiff had a constitutionally-protected liberty interest in the processing of her husband's visa); Kleindienst v. Mandel, 408 U.S. 753, 756, 762-65 (1972) (considering the merits of a claim brought by American plaintiffs challenging the denial of a visa to a Belgian journalist whom they had invited to speak in various academic forums in the United States); see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1998) (stating that because standing relates to a court's power to hear and adjudicate a case, it is normally "considered a threshold question that must be resolved in [the litigant's] favor before proceeding to the merits"); Abourezk v. Reagan, 785 F.2d 1043, 1050 (D.C. Cir. 1986) ("Presumably, had the Court harbored doubts concerning federal court subject matter jurisdiction in Mandel, it would have raised the issue on its own motion."). Other courts have done the same. See Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008) (considering an action by a United States citizen challenging the denial of her husband's visa and holding that the citizen had a procedural due process right to a "limited judicial inquiry regarding the reason for the decision"); Allende v. Shultz, 845 F.2d 1111, 1114 & n.4 (1st Cir. 1988) (evaluating the merits of a claim brought by
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scholars and leaders who extended invitations to a foreign national challenging the denial of her visa).
The United States Court of Appeals for the District of Columbia Circuit has found that U.S. citizens and residents have standing to challenge the denial of visas to individuals in whose entry to the United States they have an interest. See Abourezk, 785 F.2d at 1050 (finding that U.S. citizens and residents had standing to challenge the denial of visas to foreigners whom they had invited to "attend meetings or address audiences" in the United States); Legal Assistance for Vietnamese Asylum Seekers v. Dep't of State, Bureau of Consular Affairs, 45 F.3d 469, 471 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996). In Legal Assistance, the court specifically held that U.S. resident sponsors had standing to assert that the State Department's failure to process visa applications of Vietnamese citizens in Hong Kong violated the provision
at issue here, 8 U.S.C. S 1152. Id. at 471. The court articulated the cognizable injury to the
plaintiffs as the prolonged "separation of immediate family members" resulting from the State Department's inaction. Id. Here, the three Individual Plaintiffs who seek the entry of family members from the Designated Countries into the United States face the same harm of continuing separation from their respective family members. This harm is "fairly traceable to the challenged conduct" in that the Second Executive Order and its implementation, in barring their entry, would cause the prolonged separation, and the injury is "likely to be redressed by a favorable judicial decision" because invalidation of the relevant provisions of the Executive Order would remove a barrier to their entry. Hollingsworth, 133 S. Ct. at 2661.
Defendants nevertheless argue that the Individual Plaintiffs' harm does not arise from a "legally protected interest," citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (describing an "injury in fact" as a "legally protected interest" which is "concrete and
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particularized"). However, the case cited by Lujan in referencing the "legally protected interest" requirement referred to an injury "deserving of legal protection through the judicial process." Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972), cited with approval in Lujan, 504 U.S. at 561. Indeed, in Lujan, the Court also noted that "the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing." Lujan, 504 U.S. at 562-63. Since Lujan, courts have clarified that a party is not required to have a "substantive right sounding in property or contract" to articulate a legally protected injury. Cantrell v. City of Long Beach, 241 F.3d 674, 681 (9th Cir. 2001) (recognizing aesthetic and recreational enjoyment as a legally protected interest); see also Warth v. Seldin, 422 U.S. 490, 500 (1975) (explaining that although standing "often turns on the nature and source of the claim asserted," "standing in no way depends on the merits" of a plaintiffs claim); Judicial Watch, Inc. v. United States Senate, 432 F.3d 359, 363-66 (D.C. Cir. 2005) (Williams, J., concurring) (suggesting that a legally protected interest is merely another label for a judicially cognizable interest). Plaintiffs' interests arising from the separation from family members are consistent with the injury requirement.
Because this claim is a statutory cause of action, these Individual Plaintiffs must also meet the requirement of having interests that fall within the "zone of interests protected by the law invoked." Lexmark Int'!, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1389 (2014). The APA grants standing to a person "aggrieved by agency action within the meaning of
a relevant statute." 5 U.S.C. S 702; Clarke v. Sec. Indus. Ass 'n, 479 U.S. 388, 394 (1987). In the
context of the APA, the "zone of interests" test is "not especially demanding." Lexmark, 134 S. Ct. at 1389. A plaintiffs interest need only "arguably" fall within the zone of interests, and the test "forecloses suit only when a plaintiffs interests are so marginally related to or inconsistent
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with the purposes implicit in the statute that it cannot reasonably be assumed that Congress authorized that plaintiff to sue." !d. (internal quotation marks omitted) (quoting Match-E-BeNash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012)). Because implementing the "underlying intention of our immigration laws regarding the preservation of the family unit" is among the INA's purposes, the interests of these Individual Plaintiffs, who have sponsored family members who will be denied entry pursuant to the Second Executive Order, fall within the zone of interest protected by the statute. Legal Assistance, 45 F.3d at 471-72 (quoting H.R. Rep. No. 82-1365, at 29 (l952), as reprinted in 1952 U.S.C.C.A.N. 1653, 1680). The Court therefore finds that these three Individual Plaintiffs have standing to
assert the claim under 8 U.S.C. S 1152.
Finally, although some of the Individual Plaintiffs' relatives may be eligible for a waiver under the Second Executive Order, because the waiver process presents an additional hurdle that would delay reunification, their claims are ripe. See Jackson v. Okaloosa Cty., 21 F.3d 1531, 1541 (lith Cir. 1994) (finding in a Fair Housing Act action that plaintiffs' claim was ripe where, "assuming that [plaintiffs] successfully prove at trial that this [challenged] additional hurdle was interposed with discriminatory purpose and/or with disparate impact, then the additional hurdle itself is illegal whether or not it might have been surmounted").
B. Establishment Clause At least three of the Individual Plaintiffs, Muhammed Meteab, John Doe NO.1, and John Doe No.3, each of whom is a Muslim and a lawful permanent resident of the United States, have standing to assert the claim that the Second Executive Order violates the Establishment Clause. John Doe NO.1 and John Doe NO.3 each has a wife who is an Iranian national, currently residing in Iran, who would be barred from entry to the United States by the Executive Orders.
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John Doe No. 1 has stated that the travel ban has "created significant fear, anxiety, and insecurity" for him and his wife and that the "anti-Muslim views" underlying the Executive Orders have caused him "significant stress and anxiety" to the point that he "worr(ies] that I may not be safe in this country." J.R. 45. John Doe NO.3 has stated that the "anti-Muslim attitudes that are driving" the Executive Orders cause him "stress and anxiety" and lead him to "question whether I even belong in this country." J.R.49. Meteab, who has Iraqi family members seeking entry as refugees but who are now subject to the Executive Orders' suspension of refugee admissions, has stated that the "official anti-Muslim sentiment" of the Executive Orders has caused "mental stress" and has rendered him "isolated and disparaged" in his community. J.R. 53.
Courts have recognized that for purposes of an Establishment Clause claim, noneconomic, intangible harms to "spiritual, value-laden beliefs" can constitute a particularized injury sufficient to support standing. Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th Cir. 1997); Awad v. Ziriax, 670 F.3d 1111, 1122-23 (lOth Cir. 2012) (holding that a Muslim plaintiff residing in Oklahoma suffered a cognizable injury in the form of condemnation of his religion and exposure to "disfavored treatment" based on a voter-approved state constitutional amendment prohibiting Oklahoma state courts from considering Sharia law); Catholic League v. City & Cty. of San Francisco, 624 F.3d 1043, 1048 (9th Cir. 2010) (stating that a "psychological consequence" constitutes a concrete injury where it is "produced by government condemnation of one's own religion or endorsement of another's in one's own community"). The injury, however, needs to be a "personal injury suffered" by the plaintiff "as a consequence of the alleged constitutional error." Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485 (l982). Such a "personal injury" can result, for
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example, from having "unwelcome direct contract with a religious display that appears to be endorsed by the state," Suhre, 131 F.3d at 1086, or from being a member of the geographic community in which the governmental action disfavoring their religion has an impact, see Awad, 670 F.3d at 1122-23; Catholic League, 624 F.3d at 1048 (finding that two devout Catholics and a Catholic advocacy group, all based in San Francisco, had standing to challenge an allegedly antiCatholic resolution passed by the city government). Here, where the Executive Order was issued by the federal government, and the three Individual Plaintiffs have family members who are directly and adversely affected in that they are barred from entry to the United States as a result of the terms of the Executive Orders, these Individual Plaintiffs have alleged a "personal injury" as a "consequence" of the alleged Establishment Clause violation. Valley Forge Christian Coli., 454 U.S. at 485.
The harm is "fairly traceable to the challenged conduct" in that the Second Executive Order and its implementation will allegedly effect the disfavoring of Islam, and the injury is "likely to be redressed by a favorable judicial decision" invalidating the relevant provisions of the Executive Order. Hollingsworth, 133 S. Ct. at 2661. The Court therefore finds that these three Individual Plaintiffs have standing to assert an Establishment Clause challenge.
Having identified at least one plaintiff with standing to assert the claims to be addressed on this Motion, the Court need not address the standing arguments of the other Plaintiffs. II. Legal Standard
To obtain a preliminary injunction, moving parties must establish that (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the public interest. Winter v. Nat. Res. De! Council, Inc., 555 U.S. 7, 20 (2008); see Dewhurst v.
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Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). A moving party must satisfy each requirement as articulated. Real Truth About Obama, Inc. v. Fed. Election Comm 'n, 575 F.3d 342, 347 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010). Because a preliminary injunction is "an extraordinary remedy," it "may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter, 555 U.S. at 22. III. Likelihood of Success on the Merits
Because "courts should be extremely careful not to issue unnecessary constitutional rulings," Am. Foreign Servo Ass'n V. Garfunkel, 490 U.S. 153, 161 (1989) (per curiam), the Court first addresses the statutory claim and then proceeds, if necessary, to the constitutional claim.
A. Immigration and Nationality Act Plaintiffs assert that the President's travel ban violated provisions of the INA. The formulation of immigration policies is entrusted exclusively to Congress. Galvan v. Press, 347 U.S. 522, 531 (1954). In the Immigration and Nationality Act of 1952, Pub. L. 82-414, 66 Stat. 163, Congress delegated some of its power to the President in the form of what is now Section
212(f) of the INA, codified at 8 U.S.C. 9 1182(f) ("9 1182(f)"), which 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 entry of aliens any restrictions he may deem to be appropriate.
8 U.S.C. 9 1182(f). In the Second Executive Order, President Trump invokes 9 1I82(f) in issuing the travel ban against citizens of the Designated Countries. See 2d Order 9 2( c).
Plaintiffs argue that by generally barring the entry of citizens of the Designated
Countries, the Second Order violates Section 202(a) of the INA, codified at 8 U.S.C. 9 1152(a)
("9 1152(a)"), which provides that, with certain exceptions:
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No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place ofresidence(.]
8 U.S.C. S 1152(a)(1)(A).
Section 1152(a) was enacted as part of the Immigration and Nationality Act of 1965, which was adopted expressly to abolish the "national origins system" imposed by the Immigration Act of 1924, which keyed yearly immigration quotas for particular nations to the percentage of foreign-born individuals of that nationality who were living in the continental United States, based on the 1920 census, in order to "maintain, to some degree, the ethnic composition of the American people." H. Rep. No. 89-745, at 9 (1965). President Johnson sought this reform because the national origins system was at odds with "our basic American tradition" that we "ask not where a person comes from but what are his personal qualities." Id at 11.
At first glance, President Trump's action appears to conflict with the bar on discrimination on the basis of nationality. However, upon consideration of the specific statutory language, the Court finds no direct conflict. Section 1182(f) authorizes the President to bar
"entry" to certain classes of aliens. 8 U.S.C. S 1182(f). Section 1152(a) bars discrimination based on nationality in the "issuance of an immigrant visa." Id S 1152( a)(1)(A). Although entry
is not currently defined in the INA, until 1997 it was defined as "any coming of an alien into the United States, from a foreign port or place or from an outlying possession, voluntary or
otherwise." Id S 1101(a)(13) (1994). In the same section of the current INA, the term
"admission" is defined as "the lawful entry of the alien into the United States after inspection and
authorization by an immigration officer." !d. S 1101(a)(13)(A). The term "immigrant visa" is
separately defined as "an immigrant visa required by this chapter and properly issued by a
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consular officer at his office outside the United States to an eligible immigrant under the
provisions of this chapter." ld. S 1101(a)(16). The INA, in turn, makes clear that "(n]othing in
this Act shall be construed to entitle any alien, to whom a visa or other documentation has been
issued, to be admitted to the United States." ld. S 1201(h). Thus, S 1152(a) and S 1182(f) appear
to address different activities handled by different government officials. When two statutory provisions "are capable of co-existence, it is the duty of the courts . . . to regard each as effective." Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976). Accordingly, an executive order barring entry to the United States based on nationality pursuant to the President's
authority under S 1I82(f) does not appear to run afoul of the provision in S 1I52(a) barring
discrimination in the issuance of immigrant visas. Although the Second Executive Order does not explicitly bar citizens of the Designated
Countries from receiving a visa, the Government acknowledged at oral argument that as a result of the Second Executive Order, any individual not deemed to fall within one of the exempt categories, or to be eligible for a waiver, will be denied a visa. Thus, although the Second Executive Order speaks only of barring entry, it would have the specific effect of halting the issuance of visas to nationals of the Designated Countries. Under the plain language of the
statute, the barring of immigrant visas on that basis would run contrary to S 1I52(a). Just as S 1I52(a) does not intrude upon the President's S 1I82(f) authority to bar entry to the United States, the converse is also true: the S 1182(f) authority to bar entry does not extend to the
issuance of immigrant visas. The power the President has in the immigration context, and certainly the power he has by virtue of the INA, is not his by right, but derives from "the statutory authority conferred by Congress." Abourezk, 785 F.2d at 1061. Notably, the
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Government has identified no instance in which S 1182(f) was invoked to bar the issuance of
visas based on nationality, a step not contemplated by the language of the statute.
To the extent the Government argues that S 1152(a) does not constrain the ability of the President to use S 1182(f) to bar the issuance of immigrant visas, the Court finds no such
exception. Section 1152(a) requires a particular result, namely non-discrimination in the issuance of immigrant visas on specific, enumerated bases. Section 1182(f), by contrast, mandates no particular action, but instead sets out general parameters for the President's power
to bar entry. Thus, to the extent that S 1152(a) and S 1182(f) may conflict on the question whether the President can bar the issuance of immigrant visas based on nationality, S 1152(a), as the more specific provision, controls the more general S 1182(f). See Edmond v. United States,
520 U.S. 651, 657 (1997) ("Ordinarily, where a specific provision conflicts with a general one,
the specific governs."); United States v. Smith, 812 F.2d 161, 166 (4th Cir. 1987). Moreover, S 1152(a) explicitly excludes certain sections of the INA from its scope, specifically 99 1101(a)(27), 1151(b)(2)(A)(i), and 1153. 8 U.S.C. 9 1152(a)(1)(A). Section 1182(f) is not
among the exceptions. Because the enumerated exceptions illustrate that Congress "knows how
to expand 'the jurisdictional reach of a statute, '" the absence of any reference to 9 1182(f) among these exceptions provides strong evidence that Congress did not intend for 9 l182(f) to be exempt from the anti-discrimination provision of 9 1152(a). Reyes-Gaona v. NC. Growers
Ass 'n, 250 F.3d 861, 865 (4th Cir. 2001) (quoting Equal Emp't Opportunity Comm 'n v. Arabian Am. Oil Co., 499 U.S. 244, 258 (1991)).
The Government further argues that the President may nevertheless engage in
discrimination on the basis of nationality in the issuance of immigrant visas based on 8 U.S.C. 9 1152(a)(1)(B), which states that "[n]othing in [9 1152(a)] shall be construed to limit the authority
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of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed." As that statutory provision expressly applies to the Secretary of State, it does not provide a basis to uphold an otherwise discriminatory action by the President in an Executive Order. Even if the Court were to construe Plaintiffs' claim to be that the State Department's anticipated denial of immigrant
visas based on nationality for a period of 90 days would run contrary to S 1152(a), the text of S
1152(a)(l)(B) does not comfortably establish that such a delay falls within this exception.
Although S 1152(a)(l)(B) specifically allows the Secretary to vary "locations" and "procedures"
without running afoul of the non-discrimination provision, it does not include within the exception any authority to make temporal adjustments. Because time, place, and manner are
different concepts, and S 1152(a)(l)(B) addresses only place and manner, the Court cannot readily conclude that S 1152(a)(l)(B) permits the imminent 90-day ban on immigrant visas based on nationality despite its apparent violation of the non-discrimination provision of S
1152(a)(1)(A). Finally, the Government asserts that the President has the authority to bar the issuance of
visas based on nationality pursuant to Section 215(a) of the INA, codified at 8 U.S.C. S 1185(a)
("s 1185(a)"), which provides that: Unless otherwise ordered by the President, it shall be unlawful for an alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.
8 U.S.C. S 1185(a)(1). As support for this interpretation, the Government cites President Carter's invocation of 8 U.S.C. S 1185(a)(l) to bar entry of Iranian nationals during the Iran Hostage Crisis in 1979. Crucially, however, President Carter used S 1185(a)(l) to "prescribe
limitations and exceptions on the rules and regulations" governing "Iranians holding
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nonimmigrant visas," a category that is outside the ambit of S 1I52(a). 44 Fed. Reg. 67947, 67947 (1979). The Government has identified no instance in which S 1185(a) has been used to
control the immigrant visa issuance process. Under the principle of statutory construction that "all parts of a statute, if at all possible, are to be given effect," Weinberger v. Hynson, Westcott &
Dunning, Inc., 412 U.S. 609, 633 (1973), the Court concludes that, as with S 1I82(t), the most fair reading of S 1I82(a)(1) is that it provides the President with the authority to regulate and
control whether and how aliens enter or exit the United States, but does not extend to regulating the separate activity of issuance of immigrant visas.
Because there is no clear basis to conclude that S l182(t) is exempt from the nondiscrimination provision of S 1152(a) or that the President is authorized to impose nationality-
based distinctions on the immigrant visa issuance process through another statutory provision, the Court concludes that Plaintiffs have shown a likelihood of success on the merits of their
claim that the Second Executive Order violates S 1I52(a), but only as to the issuance of
immigrant visas, which the statutory language makes clear is the extent of the scope of that antidiscrimination requirement. They have not shown a likelihood of success on the merits of the
claim that S 1152(a) prevents the President from barring entry to the United States pursuant to S
1182(t), or the issuance of non-immigrant visas, on the basis of nationality.
Beyond S 1I52(a), Plaintiffs make the additional argument under the INA that because
the Second Executive Order's nationality-based distinctions are ostensibly aimed at potential
terrorist threats, the Order conflicts with 8 U.S.C. S 1I82(a)(3)(B), which renders an individual inadmissible based on an enumerated list of terrorism considerations. See 8 U.S.C. S
1182(a)(3)(B)(i)(I), (IV), and (VII). Plaintiffs contend that these provisions indicate that Congress has established a mechanism for the individualized assessment of the terror risk an
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immigrant poses, such that Congress did not envision that terrorism would be addressed through
broad nationality- or religion-based bans pursuant to S 1182(f). But Plaintiffs provide no support for their contention and make no showing that S 1182(a)(3)(B) and S 1182(f) "cannot mutually coexist." Radzanower, 426 U.S. at 155. Although Plaintiffs try to cast S 1182(a) as an emphatically individualized enterprise, neither S 1182(a) nor S 1I82(f) purports to limit the President to barring entry only to classes of aliens delineated in S 1182(a). Thus, Plaintiffs are
unlikely to succeed on the merits of this claim. B. Establishment Clause Plaintiffs assert that the travel ban on citizens from the Designated Countries is President
Trump's fulfillment of his campaign promise to ban Muslims from entering the United States. They argue that the Second Executive Order therefore violates the Establishment Clause. The First Amendment prohibits any "law respecting an establishment of religion," U.S. Const. amend. I, and "mandates governmental neutrality between religion. and religion, and between religion and nonreligion," Epperson v. Arkansas, 393 U.S. 97, 104 (1968). When a law does not differentiate among religions on its face, courts apply the test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971). See Hernandez v. C.IR., 490 U.S. 680, 695 (1989). Under the Lemon test, to withstand an Establishment Clause challenge (1) an act must have a secular purpose, (2) "its principal or primary effect must be one that neither advances nor inhibits religion," and (3) it must not "foster' an excessive government entanglement with religion. '" Id. at 612-613 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)). All three prongs of the test must be satisfied. Edwards v. Aguillard, 482 U.S. 578, 583 (1987).
The mere identification of any secular purpose for the government action does not satisfy the purpose test. McCreary Cty. v. Am. Civil Liberties Union a/Ky., 545 U.S. 844,860,865 n.13
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(2005). Such a rule "would leave the purpose test with no real bite, given the ease of finding some secular purpose for almost any government action." Id. ("[A]n approach that credits any valid purpose . . . has not been the way the Court has approached government action that implicates establishment." (emphasis added)). Thus, although governmental statements of purpose generally receive deference, a secular purpose must be "genuine, not a sham, and not merely secondary to a religious objective." Id. at 864. If a religious purpose for the government action is the predominant or primary purpose, and the secular purpose is "secondary," the purpose test has not been satisfied. Id. at 860, 862-65; see also Edwards, 482 U.S. at 594 (finding a violation of the Establishment Clause where the "primary purpose" of the challenged act was "to endorse a particular religious doctrine").
An assessment ofthe purpose of an action is a "common" task for courts. McCreary, 545 U.S. at 861. In determining purpose, a court acts as an "objective observer" who considers "the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act." McCreary, 545 U.S. at 862 (internal quotation marks omitted) (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)). An "understanding of official objective" can emerge from "readily discoverable fact" without ''judicial psychoanalysis" of the decisionmaker. Id.
Plaintiffs argue that the Second Executive Order fails the purpose prong because there is substantial direct evidence that the travel ban was motivated by a desire to ban Muslims as a group from entering the United States. Plaintiffs' evidence on this point consists primarily of public statements made by President Trump and his advisors, before his election, before the issuance of the First Executive Order, and since the decision to issue the Second Executive Order. Considering statements from these time periods is appropriate because courts may
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consider "the historical context" of the action and the "specific sequence of events" leading .up to it. Edwards, 482 U.S. at 594-95. Such evidence is "perfectly probative" and is considered as a matter of "common sense"; indeed, courts are "forbid[ den] ... 'to tum a blind eye to the context in which [the] policy arose.''' McCreary, 545 U.S. at 866 (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000)); cf Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267-68 (1987) (including the "historical background of the decision," the "specific sequence of events leading up [to] the challenged decision," and "contemporary statements of the decisionmaking body" as factors indicative of discriminatory intent), cited with approval in Edwards, 482 U.S. at 595.
One consequence of taking account of the purpose underlying past actions is that the same government action may be constitutional if taken in the first instance and unconstitutional if it has a sectarian heritage. This presents no incongruity, however, because purpose matters. McCreary, 545 U.S. at 866 n.l4. Specifically, the evidence offered by Plaintiffs includes numerous statements by President Trump expressing an intent to issue a Muslim ban or otherwise conveying anti-Muslim sentiments. For example, on December 7, 2015, then a Republican primary candidate, Trump posted a "Statement on Preventing Muslim Immigration" on his campaign website "calling for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on." J.R. 85. In a March 9, 2016 interview with CNN, Trump professed his belief that "Islam hates us," and that the United States had "allowed this propaganda to spread all through the country that [Islam] is a religion of peace." J.R. 255-57. Then in a March 22, 2016 Fox Business interview, Trump reiterated his call for a ban on Muslim immigration, explaining that his call for the ban had gotten "tremendous support" and that "we're having problems with the Muslims, and we're having problems with Muslims coming into the country."
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into the country." J.R. 261. On December 21, 2016, when asked whether a recent attack in Germany affected his proposed Muslim ban, President-Elect Trump replied, "You know my plans. All along, I've proven to be right. 100% correct." J.R.245. In a written statement about the events, Trump lamented the attack on people "prepared to celebrate the Christmas holiday" by "ISIS and other Islamic terrorists [who] continually slaughter Christians in their communities and places of worship as part of their global jihad." J.R. 245.
Significantly, the record also includes specific statements directly establishing that Trump intended to effectuate a partial Muslim ban by banning entry by citizens of specific predominantly Muslim countries deemed to be dangerous, as a means to avoid, for political reasons, an action explicitly directed at Muslims. In a July 24, 2016 interview on Meet the Press, soon after becoming the Republican presidential nominee, Trump asserted that immigration should be immediately suspended "from any nation that has been compromised by terrorism." J.R. 219. When questioned whether his new formulation was a "rollback" of his call for a "Muslim ban," he described it as an "expansion" and explained that "[p ]eople were so upset when I used the word Muslim," so he was instead "talking territory instead of Muslim." J.R. 220. When President Trump was preparing to sign the First Executive Order, he remarked, "This is the 'Protection of the Nation from Foreign Terrorist Entry into the United States.' We all know what that means." J.R. 142. The day after the First Executive Order was issued, Mayor Giuliani appeared on Fox News and asserted that President Trump told him he wanted a Muslim ban and asked Giuliani to "[s]how me the right way to do it legally." J.R. 247. Giuliani, in consultation with others, proposed that the action be "focused on, instead of religion ... the areas of the world that create danger for us," specifically "places where there are [sic] substantial evidence that people are sending terrorists into our country." J.R.247-48. These types of public
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statements were relied upon by the Eastern District of Virginia in enjoining the First Executive Order based on a likelihood of success on an Establishment Clause claim, Aziz, 2017 WL 580855, at *11, and the Ninth Circuit in concluding that an Establishment Clause claim against that Order raised "serious allegations" and presented "significant constitutional questions." Washington, 847 F.3d at 1168.
These statements, which include explicit, direct statements of President Trump's animus towards Muslims and intention to impose a ban on Muslims entering the United States, present a convincing case that the First Executive Order was issued to accomplish, as nearly as possible, . President Trump's promised Muslim ban. In particular, the direct statements by President Trump and Mayor Giuliani's account of his conversations with President Trump reveal that the plan had been to bar the entry of nationals of predominantly Muslim countries deemed to constitute dangerous territory in order to approximate a Muslim ban without calling it oneprecisely the form of the travel ban in the First Executive Order. See Aziz, 2017 WL 580855, at *4 (quoting from a July 17,2016 interview during which then-candidate Trump, upon hearing a tweet stating "Calls to ban Muslims from entering the U.S. are offensive and unconstitutional," responded "So you call it territories. OK? We're gonna do territories."). Such explicit statements of a religious purpose are "readily discoverable fact [s]" that allow the Court to identify the purpose of this government action without resort to "judicial psychoanalysis." McCreary, 545 U.S. at 862. They constitute clear statements of religious purpose comparable to those relied upon in Glassroth v. Moore, 335 F.3d 1282 (lith Cir. 2003), where the court found that a Ten Commandments display at a state courthouse was erected for a religious purpose in part based on the chief justice stating at the dedication ceremony that "in order to establish justice, we must invoke 'the favor and guidance of Almighty God. '" Id. at 1286, 1296 ("[N]o
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psychoanalysis or dissection is required here, where there is abundant evidence, including his own words, of the Chief Justice's purpose.").
Relying primarily on this record, Plaintiffs asks this Court to issue an injunction against the Second Executive Order on Establishment Clause grounds. In considering this request, the same record of public statements by President Trump remains highly relevant. In McCreary, where the Court was reviewing a third attempt to create a courthouse display including the Ten Commandments after two prior displays had been deemed unconstitutional, it held that its review was not limited to the "latest news about the last in a series of governmental actions" because "the world is not made brand new every morning," "reasonable observers have reasonable memories," and to impose such a limitation would render a court "an absentedminded objective observer, not one presumed familiar with the history of the government's action and competent to learn what history has to show." McCreary, 545 U.S. at 866.
The Second Executive Order, issued only six weeks after the First Executive Order, differs, as relevant here, in that the preference for religious minorities in the refugee process has been removed. It also removes Iraq from the list of Designated Countries, exempts certain categories of individuals from the ban, and lists other categories of individuals who may be eligible for a case-by-case waiver from the ban. Despite these changes, the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban. The Trump Administration acknowledged that the core substance of the First Executive Order remained intact. Prior to its issuance, on February 16, 2017, Stephen Miller, Senior Policy Advisor to the President, described the forthcoming changes as "mostly minor technical differences," and stated that the "basic policies are still going to be in effect." J.R. 319. When the Second Executive Order was
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signed on March 6, 2017, White House Press Secretary Sean Spicer stated that "[t]he principles of the [second] executive order remain the same." J.R. 118. The Second Executive Order itself explicitly states that the changes, particularly the addition of exemption and waiver categories,
were made to address 'judicial concerns," 2d Order S 1(i), including those raised by the Ninth
Circuit, which upheld an injunction based on due process concerns, Washington, 847 F.3d at 1156.
The removal of the preference for religious minorities in the refugee system, which was the only explicit reference to religion in the First Executive Order, does not cure the Second Executive Order of Establishment Clause concerns. Crucially, the core policy outcome of a blanket ban on entry of nationals from the Designated Countries remains. When President Trump discussed his planned Muslim ban, he described not the preference for religious minorities, but the plan to ban the entry of nationals from certain dangerous countries as a means to carry out the Muslim ban. These statements thus continue to explain the religious purpose behind the travel ban in the Second Executive Order. Under these circumstances, the fact that the Second Executive Order is facially neutral in terms of religion is not dispositive. See Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 699-702 (1994) (holding that a facially neutral delegation of civic power to "qualified voters" of a village predominantly comprised of followers of Satmas Hasidism was a "purposeful and forbidden" violation of the Establishment Clause); cf Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534, 542 (1993) (holding that a facially neutral city ordinance prohibiting animal sacrifice and intended to target the Santeria faith violated the Free Exercise Clause because "the Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination" and action
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targeting religion "cannot be shielded by mere compliance with the requirement of facial neutrality").
Defendants do not directly contest that this record of public statements reveals a religious motivation for the travel ban. Rather, they argue that many of the statements may not be considered because they were made outside the formal government decisionmaking process or before President Trump became a government official. Although McCreary, relied upon by Defendants, states that a court considers "the text, legislative history, and implementation" of an action and "comparable" official acts, it did not purport to list the only materials appropriate for consideration? 545 U.S. at 862. Notably, in Green v. Haskell County Board of Commissioners, 568 F.3d 784 (10th Cir. 2009), the United States Court of Appeals for the Tenth Circuit considered quotes from county commissioners that appeared in news reports in finding that a Ten Commandments display violated the Establishment Clause. Id. at 701. Likewise, in Glassroth, the United States Court of Appeals for the Eleventh Circuit found an Establishment Clause violation based on a record that included the state chief justice's campaign materials, including billboards and television commercials, proclaiming him to be the "Ten Commandments Judge." 335 F.3d at 1282, 1284-85, 1297.
Although statements must be fairly "attributed to [a] government actor," Glassman v. Arlington Cty., 628 F.3d 140, 147 (4th Cir. 2010), Defendants have cited no authority concluding
2 In Hamdan v. Rumsfeld, 548 U.S. 557, 624 n.52 (2006), cited by Defendants, the Court criticized a dissent's reliance on press statements by senior government officials, rather than the President's formal written determination mandated by the Uniform Code of Military Justice, to provide justification for the government's determination that applying court-martial rules to a terrorism suspect's military commission was impracticable. Id. at 624 & n.52. It did not address what facts could be considered in assessing government purpose under the Establishment Clause, where courts have held that facts outside the specific text of the government decision may be considered. See Edwards, 482 U.S. at 594-95.
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that a court assessing purpose under the Establishment Clause may consider only statements made by government employees at the time that they were government employees. Simply because a decisionmaker made the statements during a campaign does not wipe them from the "reasonable memory" of a "reasonable observer." McCreary, 545 U.S. at 866. Notably, the record in Glassroth also included the fact that the state chief justice, before securing election to that position, had made a campaign promise to install the Ten Commandments in the state courthouse, as well as campaign materials issued by members of his campaign committee. Glassroth, 335 F.3d at 1285. Because the state chief justice was the ultimate decisionmaker, and his campaign committee's statements were fairly attributable to him, such material is appropriately considered in assessing purpose under the Establishment Clause. See id. at 1285; Glassman, 628 F.3d at 147. Likewise, all of the public statements at issue here are fairly attributable to President Trump, the government decisionmaker for the Second Executive Order, because they were made by President Trump himself, whether during the campaign or as President, by White House staff, or by a close campaign advisor who was relaying a conversation he had with the President. In contrast, Defendants' cited case law does not involve statements fairly attributable to the government decisionmaker. See, e.g., Glassman, 628 F.3d at 147 (declining to consider statements made by members of a church that was alleged to have benefited from government action); Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 (lOth Cir. 2008) (declining to consider statements by the artist where the government's display of artwork is challenged); Modrovich v. Allegheny Cty., 385 F.3d 397, 411 (3d Cir. 2004) (declining to consider statements by a judge and county residents about a Ten Commandments display where the county government's purpose was at issue).
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Defendants also argue that the Second Executive Order explicitly articulates a national security purpose, and that unlike its predecessor, it includes relevant information about national security concerns. In particular, it asserts that there is a heightened chance that individuals from the Designated Countries will be "terrorist operatives or sympathizers" because each country is "a state sponsor of terrorism, has' been significantly compromised by terrorist organizations, or contains active conflict zones," and those governments are therefore less likely to provide necessary information for the immigrant vetting process. 2d Order ~ 1(d). The Order also references a history of persons born abroad committing terrorism-related crimes in the United States and identifies three specific cases of such crimes. The Order further states that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations.
Plaintiffs argue that the stated national security rationale is limited and flawed. Among other points, they note that the Second Executive Order does not identify examples of foreign nationals from Iran, Libya, Sudan, Syria, or Yemen who engaged in terrorist activity in the United States. They also note that a report from the Department of Homeland Security, Office of Intelligence and Analysis, concluded that "country of citizenship is unlikely to be a reliable indicator of potential terrorist activity" and that "few of the impacted countries have terrorist groups that threaten the West." l.R. 158. Furthermore, they note that the 300 FBI investigations are dwarfed by the over 11,000 counterterrorism investigations at anyone time, only a fraction of which lead to actual evidence of illegal activity. Finally, they note that Secretary of Homeland Security Kelly stated that there are additional countries, some of which are not predominantly Muslim, that have vetting problems but are not included among the banned
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countries. These facts raise legitimate questions whether the travel ban for the Designated Countries is actually warranted.
Generally, however, courts should afford deference to national security and foreign policy judgments of the Executive Branch. Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010). The Court thus should not, and will not, second-guess the conclusion that national security interests would be served by the travel ban. The question, however, is not simply whether the Government has identified a secular purpose for the travel ban. If the stated secular purpose is secondary to the religious purpose, the Establishment Clause would be violated. See McCreary, 545 U.S. at 864, 866 n.14 (stating that it is appropriate to treat two like acts differently where one has a "history manifesting sectarian purpose that the other lacks"). Making assessments on purpose, and the relative weight of different purposes, is a core judicial function. See id. at 861-62.
In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban. First, the core concept of the travel ban was adopted in the First Executive Order, without the interagency consultation process typically followed on such matters. Notably, the document providing the recommendation of the Attorney General and the Secretary of Homeland Security was issued not before the First Executive Order, but on March 6, 2017, the same day that the Second Executive Order was issued. The fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale.
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Second, the fact that the national security rationale was offered only after courts issued injunctions against the First Executive Order suggests that the religious purpose has been, and remains, primary. Courts have been skeptical of statements of purpose "expressly disclaim(ing] any attempt to endorse religion" when made after a judicial finding of impermissible purpose, describing them as a "litigating position." E.g., Am. Civil Liberties Union of Ky. v. McCreary Cty., 607 F.3d 439, 444, 448 (6t~ Cir. 2010). Indeed, the Second Executive Order itself acknowledges that the changes made since the First Executive Order were to address "judicial
concerns." 2d Order S l(i).
Third, although it is undisputed that there are heightened security risks with the Designated Countries, as reflected in the fact that those who traveled to those countries or were nationals of some of those countries have previously been barred from the Visa Waiver Program,
see 8 U.S.C. S 1187(a)(12), the travel ban represents an unprecedented response. Significantly,
during the time period since the Reagan Administration, which includes the immediate aftermath of September 11, 2001, there have been no instances in which the President has invoked his
authority under S 1182(f) or S 1185 to issue a ban on the entry into the United States of all
citizens from more than one country at the same time, much less six nations all at once. Kate M. Manuel, Congo Research Serv., R44743, Executive Authority to Exclude Aliens: In Brief (2017); l.R. 405-406. In the two instances in which nationals from a single country were temporarily stopped, there was an articulable triggering event that warranted such action. Manuel, supra, at 10-11 (referencing the suspension of the entry of Cuban nationals under President Reagan after Cuba stopped complying with U.S. immigration requirements and the revocation of visas issued to Iranians under President Carter during the Iran Hostage Crisis). The Second Executive Order does not explain specifically why this extraordinary, unprecedented action is the necessary
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response to the existing risks. But while the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban. Thus, it is more likely that the primary purpose of the travel ban was grounded in religion, and even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban. Accordingly, there is a likelihood that the travel ban violates the Establishment Clause.
Finally, Defendants argue that because the Establishment Clause claim implicates Congress's plenary power over immigration as delegated to the President, the Court need only consider whether the Government has offered a "facially legitimate and bona fide reason" for its action. See Mandel, 408 U.S. at 777. This standard is most typically applied when a court is asked to review an executive officer's decision to deny a visa. See, e.g., Din, 135 S. Ct. at 2140 (Kennedy, J., concurring); or in other matters relating to the immigration rights of individual aliens or citizens, see Fiallo v. Bell, 430 U.S. 787, 790 (1977). The Mandel test, however, does not apply to the "promulgation of sweeping immigration policy" at the "highest levels of the political branches." Washington, 847 F.3d at 1162 (holding that courts possess "the authority to review executive action" on matters of immigration and national security for "compliance with the Constitution"). In such situations, the power of the Executive and Legislative branches to create immigration law remains "subject to important constitutional limitations." Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (quoting INS v. Chadha, 462 U.S. 919,941-42 (1983)).
Even when exercising their immigration powers, the political branches must choose "constitutionally permissible means of implementing that power." Chadha, 462 U.S. at 941. Courts have therefore rejected arguments that they forgo the traditional constitutional analysis
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when a plaintiff has challenged the Government's exercise of immigration power as violating the Constitution. See, e.g., Zadvydas, 533 U.S. at 695 (rejecting deference to plenary power in determining that indefinite detention of aliens violated the Due Process Clause); Chadha, 462 U.S. at 941-43 (stating that Congress's plenary authority over the regulation of aliens does not permit it to "offend some other constitutional restriction" and holding that a statute permitting Congress to overturn the Executive Branch's decision to allow a deportable alien to remain in the United States violated constitutional provisions relating to separation of powers); Washington, 847 F.3d at 1167-68 (referencing standard Establishment Clause principles as applicable to the claim that the First Executive Order violated the Establishment Clause). Thus, although "[t]he Executive has broad discretion over the admission and exclusion of aliens," that discretion "may not transgress constitutional limitations," and it is "the duty of the courts" to "say where those statutory and constitutional boundaries lie." Abourezk, 785 F.2d at 1061.
Mindful of "the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded," Lynch v. Donnelly, 465 U.S. 668, 694 (1984), the Court finds that the Plaintiffs have established that they are likely to succeed on the merits of their Establishment Clause claim. Having reached this conclusion, the Court need not address Plaintiffs' likelihood of success on their Equal Protection Clause claim. IV. Irreparable Harm
Having concluded that Plaintiffs have established a likelihood of success on the merits, the Court turns to whether they have shown a likelihood of irreparable harm. The Supreme Court has held that "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976)
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(finding irreparable harm upon a violation of the freedom of association). The Fourth Circuit has applied this holding to cases involving the freedom of speech and expression. E.g., Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 190, 191-92 (4th Cir. 2013); Legend Night Club v. Miller, 637 F.3d 291, 302 (4th Cir. 2011). Although the Fourth Circuit has not yet held that a violation of the Establishment Clause likewise necessarily results in irreparable harm, other circuits have. See, e.g., Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303 (D.C. Cir. 2006); Ingebretsen ex rei. Ingebretsen v. Jackson Pub. Sch. Disf., 88 F.3d 274, 280 (5th Cir. 1996); Parents' Ass'n of P.s. 16 v. Quinones, 803 F.2d 1235, 1242 (2d Cir. 1986); Am. Civil Liberties Union of Ill. v. City of Sf. Charles, 794 F.2d 265, 275 (7th Cir. 1986) (finding irreparable harm in an Establishment Clause case and stating that the "harm is irreparable as well as substantial because an erosion of religious liberties cannot be deterred by awarding damages to the victims of such erosion").
Here, as in Elrod, "First Amendment interests were either threatened or in fact being impaired at the time relief was sought." Elrod, 427 U.S. at 373. "[W]hen an Establishment Clause violation is alleged, infringement occurs the moment the government action takes place." Chaplaincy of Full Gospel Churches, 454 F.3d at 303. The Court accordingly finds that Plaintiffs have established a likelihood of irreparable harm when the Second Executive Order takes effect.
v. Balance of the Equities and the Public Interest
While Plaintiffs would likely face irreparable harm in the absence of an injunction, Defendants are not directly harmed by a preliminary injunction preventing them from enforcing an Executive Order likely to be found unconstitutional. See Newsom ex rei. Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003); Aziz, 2017 WL 580855, at *10.
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Preventing an Establishment Clause violation has significant public benefit beyond the interests of the Plaintiffs. The Supreme Court has recognized the "fundamental place held by the Establishment Clause in our constitutional scheme." Wallace v. Jajfree, 472 U.S. 38, 60 (1985). The Founders "brought into being our Nation, our Constitution, and our Bill of Rights with its prohibition against any governmental establishment of religion" because they understood that "governmentally established religions and religious persecution go hand in hand." Engel v. Vitale, 370 U.S. 421, 432-33 (1962). When government chooses sides among religions, the "inevitable result" is "hatred, disrespect, and even contempt" from those who adhere to different beliefs. See id. at 431. Thus, to avoid sowing seeds of division in our nation, upholding this fundamental constitutional principle at the core of our Nation's identity plainly serves a significant public interest.
At the same time, the Supreme Court has stated that "no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453. U.S. 280, 307 (1981). Defendants, however, have not shown, or even asserted, that national security cannot be maintained without an unprecedented six-country travel ban, a measure that has not been deemed necessary at any other time in recent history. Thus, the balance of the equities and the public interest favor the issuance of an injunction. VI. Scope of Relief
Plaintiffs have asked the Court to issue an injunction blocking the Executive Order in its entirety. The Court declines to grant such broad relief. The Plaintiffs' Establishment Clause and INA arguments focused primarily on the travel ban for citizens of the six Designated Countries in Section 2(c) of the Second Executive Order. The Court will enjoin that provision only. Although Plaintiffs have argued that sections relating to the temporary ban on refugees also
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offend the Establishment Clause, they did not sufficiently develop that argument to warrant an injunction on those sections at this time. As for the remaining portions of the Second Order, Plaintiffs have not provided a sufficient basis to establish their invalidity. Thus, the Court declines to enjoin the Second Order in its entirety.
With respect to Section 2(c), the Court concludes that nationwide relief is warranted. It is "well established" that a federal district court has "wide discretion to fashion appropriate injunctive relief in a particular case." Richmond Tenants Org., Inc. v. Kemp, 956 F.2d 1300, 1308 (4th Cir. 1992); see also Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015) (holding that the "Constitution vests the District Court with 'the judicial Power of the United States,'"
which "extends across the country" (quoting U.S. Const. art. III S 1)), aff'd by an equally divided
court, 136 S. Ct. 2271 (2016). Injunctive relief "should be no more burdensome to the defendant than necessary to provide complete reliefto the plaintiffs." Califano v. Yamasaki, 442 U.S. 682, 702 (1979). However, nationwide injunctions are appropriate if necessary to afford relief to the prevailing party. See id.; Richmond Tenants Org., Inc., 956 F.3d at 1308-39; Texas, 809 F.3d at 188.
The Court has found that Plaintiffs are likely to be able to establish that Section 2(c) of the Second Executive Order violates the Establishment Clause. Both the Individual Plaintiffs and clients of the Organizational Plaintiffs are located in different parts of the United States, indicating that nationwide relief may be appropriate. Richmond Tenants Org., Inc., 956 F.3d at 1309 (holding that a nationwide injunction was "appropriately tailored" because the plaintiffs lived in different parts of the country). Moreover, although the Government has argued that relief should be strictly limited to the specific interests of the Plaintiffs, an Establishment Clause violation has impacts beyond the personal interests of individual parties. Joyner v. Forsyth Cty.,
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653 F.3d 341, 355 (4th Cir. 2011) ("[T]hese plaintiffs are not so different from other citizens who may feel in some way marginalized on account of their religious beliefs and who decline to risk the further ostracism that may ensue from bringing their case to court or who simply lack the resources to do so."); City of Sf. Charles, 794 F.2d at 275 (stating that a violation of the Establishment Clause causes "harm to society"). Here, nationwide relief is appropriate because this case involves an alleged violation of the Establishment Clause by the federal government manifested in immigration policy with nationwide effect. See Decker v. O'Donnell, 661 F.2d 598, 618 (7th Cir. 1980) (affirming a nationwide injunction in a facial challenge to a federal statute and regulations on Establishment Clause grounds).
Finally, under these facts, a "fragmented" approach "would run afoul of the constitutional and statutory requirement for uniform immigration law and policy." Washington, 847 F.3d at 1166-67. "Congress has instructed that the immigration laws of the United States should be enforced vigorously and uniformly, and the Supreme Court has described immigration policy as a comprehensive and unified system." Texas, 80 F.3d at 187-88 (footnotes and quotation marks omitted). In light of the constitutional harms likely to befall Plaintiffs in the absence of relief, and the constitutional mandate of a uniform immigration law and policy, Section 2(c) of the Second Executive Order will be enjoined on a nationwide basis.
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CONCLUSION For the foregoing reasons, the Motion is GRANTED IN PART and DENIED IN PART. The Court will issue an injunction barring enforcement of Section 2(c) of the Second Executive Order. A separate Order shall issue.

Date: March 15,2017

THEODORE D. CHU United States District

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EXHIBIT E

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Official website of the Department of Homeland Security

Contact Us Quick Links Site Map

A-Z Index

Archived Content
In an effort to keep DHS.gov current, the archive contains content from a previous administration or is otherwise outdated.
Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents Into The United States
Release Date: January 29, 2017
On March 6, 2017 President Trump issued a new Executive Order on Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States that
rescinded the Executive Order that was issued on January 27, 2017. Click here for more information (/executive-orders-
protecting-homeland) .
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----For Immediate Release Office of the Press Secretary Contact: 202-282-8010 WASHINGTON – In applying the provisions of the president's executive order, I hereby deem the entry of lawful permanent residents to be in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.
# # #
Topics: International (/topics/international) Keywords: international (/keywords/international) , Legal Permanent Residents (/keywords/legal-permanent-residents) Last Published Date: January 29, 2017
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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.

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EXHIBIT G

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Official website of the Department of Homeland Security

Contact Us Quick Links Site Map

A­Z Index

Statement on Countries Currently Suspended from Travel to the United States
Release Date: February 3, 2017
For Immediate Release Office of the Press Secretary Contact: 202-282-8010
WASHINGTON - The Department of Homeland Security (DHS) would like to clarify the classes of aliens affected by the 90-day temporary pause on travel, with case-by-base exceptions and waivers, as outlined in the President’s Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.”
To ensure that the U.S. government can conduct a thorough analysis of the national security risks faced by our immigration system, the Executive Order imposes a 90-day pause on the entry into the United States of nationals from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen. This
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pause does not apply to Lawful Permanent Residents, dual citizens with passports from a country other than the seven listed, or those traveling on diplomatic, NATO, or UN visas. Special Immigrant Visa holders who are nationals of these seven countries may board U.S.-bound planes, and apply for and receive a national interest exception to the pause upon arrival.
Importantly, these seven countries are the only countries to which the pause on entry applies. No other countries face such treatment. Nor have any other countries been identified as warranting future inclusion at this time, contrary to false reports.
As directed by the Executive Order, DHS is working with the Department of State and the Office of the Director of National Intelligence to conduct a country-by-country review of the information provided by countries in order for their nationals to apply for myriad visas, immigration benefits, or otherwise seek admission into the United States. This review is needed to ensure that individuals seeking to enter the U.S. are who they claim to be and do not pose a security or public-safety threat.
The results of this review will be provided to the President within 30 days of the Executive Order’s signing. This review, conducted in consultation with our interagency partners, will determine which countries do not provide adequate information on their nationals seeking immigration benefits or admission into the United States. Principally, the goal is to ensure that those admitted to this country do not bear hostile attitudes toward the United States and its founding principles.
Based on that report, the State Department will ask any foreign governments who were determined to not be supplying adequate information on their nationals to begin
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providing such information within 60 days. In order to protect Americans, and to advance the national interest, the United States must ensure that we have adequate information about individuals seeking to enter this country to ensure that they do not bear malicious intent toward the United States and its people.
###
Topics: Immigration Enforcement (/topics/immigration-enforcement) Keywords: immigration (/keywords/immigration) Last Published Date: February 4, 2017
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EXHIBIT H

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EXHIBIT I

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President Donald Trump speaks at a rally on March 15, 2017 in Nashville, Tennessee. Andrea Morales/Getty Images
WHITE HOUSE
Read President Trump’s Response to the Travel Ban Ruling: It ‘Makes Us Look Weak’
Katie Reilly Mar 16, 2017
President Donald Trump on Wednesday spoke at a rally in Nashville, Tenn., where he responded to a new ruling by a federal judge in Hawaii placing a nationwide restraining order on his revised travel ban.
Trump criticized the ruling as "an unprecedented judicial overreach."
"You don't think this was done by a judge for political reasons, do you? No," he said to applause. "This ruling makes us look weak, which, by the way, we no longer are. Believe me."

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Read Trump's full remarks from the rally, where he also spoke about the Republican health care plan:
TRUMP: Thank you very much, everybody. Thank you. (APPLAUSE) So, we're just going to let the other folks come in, fill it up. This is some crowd. You have to see what's outside. You wouldn't even believe it. (APPLAUSE) Unbelievable. (APPLAUSE) So, I'm thrilled to be here in Nashville, Tennessee, the home... (APPLAUSE) ... of country music, southern hospitality, and the great President Andrew Jackson. (APPLAUSE) I just came from a tour of Andrew Jackson's home to mark the 250th anniversary of his birth. (APPLAUSE) Jackson's life was devoted to one -- a very crucial principle. He understood that real leadership means putting America first. (APPLAUSE) Before becoming president, Andrew Jackson served your state in the House of Representatives and in the United States Senate. And he also served as commander of the Tennessee Militia. (APPLAUSE) Tough cookies. Tough cookies. So, let's begin tonight by thanking all of the incredible men and women of the United States military and all of our wonderful veterans. The veterans. (APPLAUSE) AUDIENCE: USA! USA! USA! TRUMP: Crazy. Amazing. There's no place I'd rather be than with all of you here tonight, with the wonderful, hardworking citizens of our country. (APPLAUSE) I would much rather spend time with you than any of the pundits, consultants or special interests, certainly or reporters from Washington D.C. (APPLAUSE) It's patriotic Americans like you who make this country run and run well. You pay your taxes, follow our laws, support your communities, raise your children, love your country, and send your bravest to fight in our wars. (APPLAUSE) All you want is a government that shows you the same loyalty in return. (APPLAUSE)

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It's time that Washington heard your voice and, believe me, on November 8th they heard your voice. (APPLAUSE) The forgotten men and women of our country will never be forgotten again. Believe me. (APPLAUSE) I want to thank so many of your state leaders; State Party Chairman Scott Golden, Congressman Scott DesJarlais... (APPLAUSE) ... Congresswoman Marsha Blackburn... (APPLAUSE) ... Congresswoman Diane Black... (APPLAUSE) ... Congressman Jimmy Duncan, right from the beginning... (APPLAUSE) ... Governor Bill Haslam... (APPLAUSE) ... a great friend of mine, Senator Bob Corker... (APPLAUSE) ... an incredible guy, respected by all, Senator Lamar Alexander... (APPLAUSE) ... and so many more. Thank you all for being here. We're going to be working closely together -thank you; to deliver for you, the citizens of Tennessee, like you've never been delivered for before. Thank you. Thank you. (APPLAUSE) Thank you. (APPLAUSE) We are going to reduce your taxes. (APPLAUSE) Big league. Big. Big. And I want to start that process so quickly. Got to get the health care got done. We got to start the tax reductions. (APPLAUSE) We are going to enforce our trade rules and bring back our jobs, which are scattered all over the world. They're coming back to our country. (APPLAUSE) We're going to support the amazing, absolutely amazing men and women of law enforcement. (APPLAUSE) Protect your freedoms and defend the Second Amendment. (APPLAUSE) And we are going to restore respect for our country and for its great and very beautiful flag.

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(APPLAUSE) It's been a little over 50 days since my inauguration and we've been putting our America First agenda very much into action. You see what's happened (ph). We're keeping our promises. In fact, they have signs, he's kept his promise. They're all over the place. I have. We have done far more, I think maybe more than anybody's done in this office in 50 days. That I can tell you. (APPLAUSE) And we have just gotten started. Wait till you see what's coming, folks. (APPLAUSE) We've appointed a Supreme Court Justice to replace the late, great Antonin Scalia. His name is Judge Neil Gorsuch. (APPLAUSE) He will uphold and defend the Constitution of the United States. We are proposing a budget that will shrink the bloated federal bureaucracy -- and I mean bloated; while protecting our national security. You see what we're doing with our military; bigger, better, stronger than ever before. You see what's happening. (APPLAUSE) And you're already seeing the results. Our budget calls for one of the single largest increases in defense spending history in this country. (APPLAUSE) We believe, especially the people in Tennessee -- I know you people so well... (APPLAUSE) ... in peace through strength. It's what we're going to have. (APPLAUSE) And we are taking steps to make sure that our allies pay their fair share. They have to pay. (APPLAUSE) We've begun a dramatic effort to eliminate job-killing federal regulations like nobody has ever seen before. Slash, slash. We're going to protect the environment. We're going to protect people's safeties, but let me tell you, the regulation business has become a terrible business and we're going to bring it down to where it should be. (APPLAUSE) (BOOING) (APPLAUSE) OK, let's go. One person, and they'll be the story tomorrow. Did you hear there was a protester? (APPLAUSE) We're going to put our miners back to work. We're going to put our auto industry back to work. (APPLAUSE) Already, because of this new business climate, we are creating jobs that are starting to pour back into our country like we haven't seen in many, many decades.

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(APPLAUSE) In the first two job reports since I took the oath of office, we've already added nearly half a million new jobs. And believe me, it's just beginning. (APPLAUSE) I've already authorized the construction of the long-stalled and delayed Keystone and Dakota access pipeline. (APPLAUSE) A lot of jobs. (APPLAUSE) I've also directed that new pipelines must be constructed with American steel. (APPLAUSE) They want to build them here, they use our steel. We believe in two simple rules. Buy American and hire American. (APPLAUSE) On trade, I've kept my promise to the American people and withdrawn from the Trans-Pacific Partnership disaster. (APPLAUSE) Tennessee has lost one-third of its manufacturing jobs since the institution of NAFTA, one of the worst trade deals ever in history. (BOOING) Our nation has lost over 60,000 factories since China joined the World Trade Organization; 60,000. Think of that. More than that. We're not going to let it happen anymore. From now on, we are going to defend the American worker and our great American companies. (APPLAUSE) And if America does what it says and if your president does what I've been telling you, there is nobody anywhere in the world that can even come close to us, folks. Not even close. (APPLAUSE) If a company wants to leave America, fire their works, and then ship their new products back into our country, there will be consequences. (APPLAUSE) That's what we have borders for. And by the way, aren't our borders getting extremely strong? (APPLAUSE) Very strong. (APPLAUSE) Don't even think about it. We will build the wall. Don't even think about it. (APPLAUSE) In fact, as you've probably read, we went out to bid. We had hundreds of bidders. Everybody wants to build our wall. (APPLAUSE)

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Usually, that means we're going to get a good price. We're going to get a good price; believe me. We're going to build a wall. Some of the fake news said, I don't think Donald Trump wants to build the wall. Can you imagine if I said we're not going to build a wall? Fake news. (BOOING) Fake, fake news. (BOOING) Fake news, folks. A lot of fake. (BOOING) No, the wall is way ahead of schedule in terms of where we are. It's under design and you're going to see some very good things happening. But the border by itself right now is doing very well. It's becoming very strong. (APPLAUSE) General Kelly has done a great job. General Kelly. (APPLAUSE) My administration is also following through on our promise to secure, protect, and defend that border within our United States. Our southern border will be protected always. It will have the wall. Drugs will stop pouring in and poisoning our youth. (APPLAUSE) And that will happen very, very soon. You're already seeing what's going on. The drugs are pouring in to our country folks. They are poisoning our youth and plenty of others and we're going to stop it. We're not going to be playing games. Not going to be playing games. (APPLAUSE) Following my executive action -- and don't forget, we've only been here for like, what, 50 days? We've already experienced an unprecedented 40 percent reduction in illegal immigration on our southern border, 61 percent -- 61 percent since inauguration day. Sixty-one percent; think about it. (APPLAUSE) And now people are saying we're not going to go there anymore 'cause we can't get in, so it's going to get better and better. We got to stop those drugs, though. We got to stop those drugs. During the campaign, as I traveled all across this country, I met with many American families whose loved ones were viciously and violently killed by illegal immigrants because our government refused to enforce our already existing laws. These American victims were ignored by the media. They were ignored by Washington. But they were not ignored by me and they're not ignored by you and they never will be ignored, certainly any longer. Not going to happen. (APPLAUSE) As we speak, we are finding the drug dealers, the robbers, thieves, gang members, killers, and criminals preying on our citizens. One by one -- you're reading about it, right? (APPLAUSE)

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They're being thrown out of our country, they're being thrown into prisons, and we will not let them back in. (APPLAUSE) We're also working night and day to keep our nation safe from terrorism. (APPLAUSE) We have seen the devastation from 9/11 to Boston to San Bernardino; hundreds upon hundreds of people from outside our country have been convicted of terrorism-related offenses. In the United States courts, right now we have investigations going on all over. Hundreds of refugees are under federal investigation for terrorism and related reasons. We have entire regions of the world destabilized by terrorism and ISIS. For this reason, I issued an executive order to temporarily suspend immigration from places where it cannot safely occur. (APPLAUSE) AUDIENCE: USA! USA! USA! TRUMP: But let me give you the bad news. We don't like bad news, right? I don't want to hear an alternative to good. But let me give you the bad, the sad news. Moments ago, I learned that a district judge in Hawaii... (BOOING) ... part of the much overturned 9th Circuit Court... (BOOING) ... and I have to be nice. Otherwise I'll get criticized for... (APPLAUSE) ... for speaking poorly about our courts. I'll be -- I'll be criticized by these people, among the most dishonest people in the world. (APPLAUSE) I will be criticized... (BOOING) (APPLAUSE) I'll be criticized by them for speaking harshly about our courts. I would never want to do that. A judge has just blocked our executive order on travel and refugees coming into our country from certain countries. (BOOING) The order he blocked was a watered down version of the first order that was also blocked by another judge and should have never been blocked to start with. (APPLAUSE) This new order was tailored to the dictates of the 9th Circuit, in my opinion, flawed ruling. (APPLAUSE) This is the opinion of many, an unprecedented judicial overreach. (APPLAUSE) The law and the Constitution give the President the power to suspend immigration when he deems -- or she -- or she -- fortunately it will not be Hillary-she.

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(APPLAUSE) When he or she deems it to be in the national interest of our country. AUDIENCE: Lock her up! Lock her up! Lock her up! TRUMP: So we have a lot of lawyers here. We also have a lot of smart people here. Let me read to you, directly from the federal statute, 212(f) of the immigration, and you know what I'm talking about, right? Can I read this to you? Listen to this. Now, we're all smart people, we're all good students, were all everything. Some are bad students, but even if you're a bad student, this is a real easy one, let me tell you. Ready? So here's the statute, when they don't even want to quote when they overrule it. And it was put here for the security of our country. And this goes beyond me, because there'll be other presidents and we need this. And sometimes we need it very badly for security -- security of our country. It says -- now listen to easy -- how easy this is. Whenever the president finds that the entry of any aliens or any class of aliens would be detrimental to the interests of the United States, he may, by proclamation and for such period as he -- see, it wasn't politically correct, 'cause they should have said he or she. You know, today they'd say that. (LAUGHTER) That's (inaudible) (LAUGHTER) Actually, that's the only mistake they made -- as he shall deem necessary, suspend the entry of all aliens or any class of aliens, as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. In other words, if he thinks there's danger out there, he or she, whoever is president can say, I'm sorry, folks, not now, please. We got enough problems. (APPLAUSE) We're talking about the safety of our nation, the safety and security of our people. (APPLAUSE) Now, I know you people aren't skeptical people, 'cause nobody would be that way in Tennessee. Nope, nobody. Not Tennessee. You don't think this was done by a judge for political reasons, do you? No. (APPLAUSE) This ruling makes us look weak, which, by the way, we no longer are. Believe me. (APPLAUSE) Just look at our borders. (APPLAUSE) We're going to fight this terrible ruling. We're going to take our case as far as it needs to go, including all the way up to the Supreme Court. (APPLAUSE) We're going to win. We're going to keep our citizens safe. And regardless, we're going to keep our citizens safe. Believe me. (APPLAUSE)

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Even liberal democratic lawyer, Alan Dershowitz -- good lawyer; just said that we would win this case before the Supreme Court of the United States. (APPLAUSE) Remember this. I wasn't thrilled, but the lawyers all said, oh, let's tailor it. This is a watered down version of the first one. This is a watered down version. And let me tell you something. I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place. (APPLAUSE) The danger is clear. The law is clear. The need for my executive order is clear. I was elected to change our broken and dangerous system and thinking in government that has weakened and endangered our country and left our people defenseless. (APPLAUSE) And I will not stop fighting for the safety of you and your families. Believe me. Not today, not ever. We're going to win it. We're going to win it. (APPLAUSE) We're going to apply common sense. We're going to apply intelligence. And we're never quitting and we're never going away and we're never, ever giving up. The best way to keep foreign terrorists or, as some people would say in certain instances, radical Islamic terrorists from attacking our country is to stop them from entering our country in the first place. (APPLAUSE) We'll take it, but these are the problems we have. People are screaming break up the 9th Circuit and I'll tell you what. That 9th Circuit -- you have to see. Take a look at how many times they have been overturned with their terrible decisions. Take a look. And this is what we have to live with. Finally, I want to get to taxes. I want to cut the hell out of taxes, but... (APPLAUSE) ... but... (APPLAUSE) ... before I can do that -- I would have loved to have put it first. I'll be honest. There is one more very important thing that we have to do and we are going to repeal and replace horrible, disastrous Obamacare. (APPLAUSE) If we leave Obamacare in place, millions and millions of people will be forced off their plans and your senators just told me that in your state you're down to practically no insurers. You're going to have nobody. You're going to have nobody. And this is true all over. The insurers are fleeing. The insurers are fleeing. It's a catastrophic situation. And there's nothing to compare anything to because Obamacare won't be around for a year or two. It's -- it's gone. So it's not like, oh gee, they this -- Obamacare is gone. (APPLAUSE)

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Premiums will continue to soar, double digits and even triple digits in many cases. It will drain our budget and destroy our jobs. Remember all of the broken promises? You can keep your doctor. You can keep your plan. Remember the wise guy? (BOOING) Remember the wise guy that essentially said the American people -- the so-called architect; the American people are stupid because they approved it? We're going to show them. Those in Congress who made these promises have no credibility whatsoever on health care. And remember this; remember this. If we took -- because there's such divisiveness. And I'm not just talking now, with me. There was Obama, there was with Bush, the level of hatred and divisiveness with the politicians. I remember years ago, I'd go to Washington. I was always very politically active. And Republicans and Democrats, they'd fight during the day and they'd go to dinner at night. Today, there's a level that nobody's seen before. Just remember this. If we submitted, the Democrats' plan, drawn everything perfect for the Democrats, we wouldn't get one vote from the Democrats. That's the way it is. That's how much divisiveness and other things there are, so it's a problem. But we're going to get it by. So I've met with so many victims of Obamacare, the people who've been so horribly hurt by this horrible legislation. At the very core of Obamacare was a fatal flaw. The government forcing people to buy a government-approved product. (BOOING) There are very few people. Very few people. (BOOING) And by the way, watch what happens. Now you just booed Obamacare. They will say Trump got booed when he mentioned... (LAUGHTER) They're bad people, folks. They're bad people. (BOOING) (APPLAUSE) Tonight I'll go home. I'll turn on. I'll say, listen, I'll turn on that television. My wife will say, darling, it's too bad you got booed. I said I didn't be booed. This was (inaudible). I said no, no. They were booing Obamacare. Watch, a couple of them will actually do it, almost guaranteed. But when we call them out it makes it harder for them to do it, so we'll see. (APPLAUSE) It's the fake, fake media. We want Americans to be able to purchase the health insurance plans they want, not the plans forced on them by our government. (APPLAUSE) The House has put forward a plan to repeal and replace Obamacare, based on the principles I outlined in my joint address, but let me tell you. We're going to arbitrate. We're going to all get together. We're going to get something done.

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Remember this. If we didn't do it the way we're doing it, we need 60 votes, so we'd have to get the Democrats involved. They won't vote. No matter what we do they're not going to vote. So we're doing it a different way, a complex way, it's fine. The end result is when you're at phase one, phase two, phase three; it's going to be great. It's going to be great. (APPLAUSE) And then, we get on to tax reductions, which I like. (APPLAUSE) The House legislation does so much for you. It gives the states Medicaid flexibility and some of the states will take over their health care. Governor Rick Scott in Florida said, just send me the money. They run a great plan. We have states that are doing great. It gives great flexibility. Thank you, folks. Thank you. (APPLAUSE) Thank you. (APPLAUSE) It repeals hundreds of billions of dollars in Obamacare taxes. It provides tax credits to people to purchase the care that is rightfully theirs. The bill that I will ultimately sign, and that will be a bill where everybody's going to get into the room and we're going to get it done. We'll get rid of Obamacare and make health care better for you and for your family. (APPLAUSE) And once this is done, and a step further, we are going to try and put it in phase three. I'm going to work on bringing down the cost of medicine by having a fair and competitive bidding process. (APPLAUSE) We welcome this health care debate and its negotiation and we're going to carry it out and have been carrying it out in the full light of day, unlike the way Obamacare was passed. (APPLAUSE) Remember, folks, if we don't do anything, Obamacare is gone. It's not like, oh gee, it's going to be wonderful in three years. It's gone. It's gone. It's gone. Not working. It's gone. (APPLAUSE) What we cannot do is to be intimidated by the dishonest attacks from Democratic leaders in Congress who broke the system in the first place and who don't believe you should be able to make your own health care decisions. (APPLAUSE) I am very confident that if we empower the American people, we'll accomplish incredible things for our country, not just on health care, but all across our government. We will unlock new frontiers in science and in medicine. We will give our children the right to attend the school of their choice, one where they will be taught to love this country and its values. (APPLAUSE) We will create millions and millions of new jobs by lowering taxes on our businesses and, very importantly, for our workers. We're going to lower taxes.

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(APPLAUSE) Big (ph). (APPLAUSE) And we will fight for the right of every American child to grow up in a safe neighborhood, attend a great school, and to graduate with access to a high-paying job that they love doing. (APPLAUSE) No matter background (ph), no matter our income, no matter our geography, we all share the same home. We all salute the same flag. And we all are made by the same God. (APPLAUSE) AUDIENCE: USA! USA! USA! TRUMP: It's time to embrace our glorious American destiny. Anything we can dream for our country, we can achieve for our country. All we have to do is tap into that American pride that is swelling our hearts and stirring our souls and we found that out very recently in our last election. A lot of pride. (APPLAUSE) We are all Americans and the future truly belongs to us. The future belongs to all of you. This is your moment. This is your time. This is the hour when history is made. All we have to do is put our own citizens first and, together, we will make America strong again. (APPLAUSE) We will make America wealthy again. (APPLAUSE) We will make America proud again. (APPLAUSE) We will make America safe again. (APPLAUSE) And we will make America great again. (APPLAUSE) Thank you. God bless you. Thank you. (APPLAUSE) God bless you, everybody.

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 Case 1:17-cv-00353-TCB Document 37 Filed 05/08/17 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

)

TAWFEEQ,

)

)

Plaintiff.

)

)

v.

)

)

U.S. DEPARTMENT OF HOMELAND )

SECURITY (“DHS”); JOHN F. KELLY, )

Secretary of DHS; U.S. CUSTOMS AND )

BORDER PROTECTION (“CBP”);

)

KEVIN K. MCALEENAN, Acting

)

Commissioner of CBP; CAREY DAVIS, )

Port Director, CBP ; ANDY PRYOR,

)

Manager, CBP; SHANA WELLS,

)

Manager, CBP; U.S. DEPARTMENT )

OF STATE (“Department of State”);

)

REX WAYNE TILLERSON,

)

Secretary of State, Department of State. )

)

Defendants.

)

Case No. 1:17-cv-353
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

As alleged in the Amended Complaint, Plaintiff continues to suffer harm

under a broad Executive Order that (i) applies to Iraqi nationals, (ii) does not

exempt lawful permanent residents like Plaintiff, (iii) subjects Iraqis to sweeping

and unlawful border scrutiny, and (iv) continues to prevent him from work-

required travel. Defendants argue that Plaintiff’s Amended Complaint should be

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dismissed for lack of standing and mootness. Defendants’ Motion fails because it relies on factual assertions inappropriate for a motion to dismiss, disguises factual assumptions as legal arguments, and makes legal arguments unsupported by the law of this Circuit. As such, the Motion should be denied.
Plaintiff Mohammed Tawfeeq is a prominent journalist and Iraqi national who has since 2013 been a lawful permanent resident (“LPR”) of the United States. Plaintiff’s job requires him to make trips abroad at a moment’s notice to some of the world’s most dangerous areas, including, for example, areas influenced by the so-called Islamic State of Iraq and Syria (“ISIS”). As an LPR, Plaintiff is entitled to enhanced statutory and constitutional protections. See, e.g., Landon v. Plasencia, 459 U.S. 21, 32 (1982).
Among those protections, Section 101(a)(13)(C) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(13)(C), allows Plaintiff to be treated as a “returning resident”—meaning that he does not apply for “admission” when returning to the United States, but rather is treated as a matter of law as if he never departed the United States. While an alien applicant for “admission” bears the burden of proving to an immigration official at a port of entry that he should be admitted, 8 U.S.C. § 1361, a returning resident LPR may only be denied entry if Defendants prove by clear and convincing evidence that he is within one of the
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grounds in INA § 101(a)(13)(C) that negates his “returning resident” status. See Matter of Rivens, 25 I&N Dec. 623, 625 (BIA 2011).
Two Executive Orders (“EO”s)—one now revoked, and one currently in place—have impeded Plaintiff’s ability to travel freely for over three months. Under a January 2017 EO, Defendants turned away LPRs from seven countries, including Iraq, at the U.S. border and as they were attempting to board airplanes bound for the United States, in clear violation of INA § 101(a)(13)(C). Plaintiff himself was permitted to enter the country only after being stopped at the airport by an immigration officer, told that he could be turned away under the EO, and then allowed to proceed only after an unspecified “e-mail” from a supervisor. In other words, Plaintiff was not merely inspected by immigration officials the last time he returned home—he was subject to the admission process, or its de facto equivalent, in clear violation of his statutory rights under INA § 101(a)(13)(C).
The January EO was revoked after numerous lawsuits and replaced by a new EO dated March 6, 2017, that explicitly attempts to cure various defects with the January EO. See ECF No. 33-2 at § 1(c), (i). While the March EO removes LPRs and Iraqis from the blanket travel ban, id. at §§ 2(c), 3(b)(i), Plaintiff’s uncertainty persists due to a new provision of the March EO—Section 4—that states that all Iraqi nationals (including LPRs) making an application for “a visa, admission or
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other immigration benefit” will be subject to “thorough review” including a consultation with the Secretary of Defense or his designee to see whether they have “connections with ISIS or other terrorist organizations or with territory that is or has been under the dominant influence of ISIS.” ECF No. 33-2 at § 4. The March EO does not define any of the terms that Section 4 uses (e.g. “other immigration benefit”), detail how the alleged additional screening will be administered or who will bear the burden, or specify the implications of that screening for LPRs.
Under any fair reading of the March EO, Plaintiff bears a tangible risk of being subjected to scrutiny akin to an admissibility inquiry—an inquiry that by law does not apply to him. An EO cannot overturn INA § 101(a)(13)(C), but the March EO purports to do just that by threatening to again refuse a proper application of INA § 101(a)(13)(C) to Plaintiff upon any return to the United States. As such: (i) this Court has jurisdiction to hear this case, and (ii) Plaintiff’s Amended Complaint has not been mooted by the revised EO.
Defendants now move to dismiss. In their view, Plaintiff has no further cause for concern—a new day has dawned and a new EO has issued. Defendants assure the Court that the EO will not apply to Mr. Tawfeeq because he will not possibly seek “admission” when he returns, for instance, from ISIS-influenced areas of Iraq where he is covering a story. And even if Mr. Tawfeeq were
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subjected to additional scrutiny, Defendants say, the idea that he could be impeded or barred from returning home is mere speculation.
Defendants’ position relies on an assertion of fact—“here is how Plaintiff will be treated when he returns under the March EO”—that is impermissible in a motion to dismiss. Defendants’ position also disregards the language in Section 4 of the March EO, quoted above, that is in direct conflict with INA § 101(a)(13)(C). How is a CBP Officer at a port of entry to resolve the tension between the March EO and applicable law without the declaration of law and issuance of operational instructions contained in the Amended Complaint’s plea for relief when inspecting Mr. Tawfeeq on return from a part of the world affected by ISIS? Defendants’ assertion that the injury caused by the March EO to him is “speculative” is simply inconsistent with the case law and with common sense.
Finally, Defendants’ assertion that the March EO will cure any ills that Plaintiff suffered under the January EO does not square with the mootness laws of this Circuit. The words of Section 4 of the March EO contradict the showing Defendants must make that their unlawful conduct will cease, and the Amended Complaint establishes Defendants’ misconduct is capable of repetition but could evade judicial review unless this litigation is maintained. For the reasons that follow, Defendants’ Motion to Dismiss should thus be denied.
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FACTUAL AND PROCEDURAL BACKGROUND Plaintiff is a prominent journalist for Cable News Network, Inc. (“CNN”) specializing in the regions of the Middle East and North Africa. ECF No. 33 at ¶¶ 1-3, 43-49. Since 2013, Plaintiff has been stationed at CNN’s Atlanta offices, but he must regularly travel abroad as part of his job duties. Id. at ¶¶ 1-3, 50.1 Plaintiff is an LPR who resides in Atlanta. ECF No. 33 at ¶¶ 40-41. On January 27, 2017, President Trump signed an Executive Order (“EO”) that, inter alia, “suspend[ed] entry into the United States, as immigrants and nonimmigrants” aliens from seven nationalities, including Iraq, for a period of 90 days. ECF No. 33 at ¶ 60, 62; ECF No. 33-1 at 3 (§ 3(c)). Subsequent to that EO’s issuance, Defendants issued various statements indicating that the EO would be applied to LPRs—i.e. immigrants—like Plaintiff. ECF No. 33 at ¶¶ 67-68. On information and belief (and as alleged in other lawsuits around the country), Defendants actually did apply that EO to refuse entry or otherwise impede the travel of numerous LPRs. Id. at ¶¶ 78-79. Defendants then applied the January EO to Plaintiff upon his return to the United States from a trip to Iraq on the evening of January 29, 2017. Specifically,
1 As discussed infra, Plaintiff’s allegations should be accepted as true for purposes of Defendants’ Motion.
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immigration officials at Atlanta Hartsfield/Jackson International Airport informed Plaintiff that he could be denied entry under the January EO and forced him to wait while they obtained an unspecified “e-mail” concerning whether he would be allowed into the United States. Id. at ¶¶ 52-59. Plaintiff has alleged that Defendants have no basis for treating him as seeking admission on his return in January. Id. at ¶¶ 102-06. The next day, Plaintiff filed the Complaint in this matter seeking relief for the violation of his statutory and constitutional rights. See ECF No. 1. In the face of lawsuits around the country, Defendants issued press releases and dubious legal guidance from the White House Counsel that attempted to carve out LPRs from the January EO’s travel ban. ECF No. 33 at ¶¶ 71-75; ECF No. 33-5; ECF No. 33-6. The January EO remained in effect—unchanged— through March 16, 2017. ECF No. 33 at ¶¶ 76.
On March 6, 2017, President Trump signed a new EO. ECF No. 33 at ¶ 80; ECF No. 33-2. The March EO had an effective date of March 16, 2017, upon which the January EO was revoked. ECF No. 33 at ¶ 81; ECF No. 33-2 at §§ 13, 14. The March EO has two provisions that relate directly to Iraqis. First, section 1(g) terms Iraq a “special case” due to ISIS’s influence over Iraqi territory and the close relationship between Iraq and the United States. See ECF No. 33-2 at § 1(g).
Second, section four of the March EO states: -7-

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Sec. 4. Additional Inquiries Related to Nationals of Iraq. An application by any Iraqi national for a visa, admission, or other immigration benefit should be subjected to thorough review, including, as appropriate, consultation with a designee of the Secretary of Defense and use of the additional information that has been obtained in the context of the close U.S.-Iraqi security partnership, since Executive Order 13769 was issued, concerning individuals suspected of ties to ISIS or other terrorist organizations and individuals coming from territories controlled or formerly controlled by ISIS. Such review shall include consideration of whether the applicant has connections with ISIS or other terrorist organizations or with territory that is or has been under the dominant influence of ISIS, as well as any other information bearing on whether the applicant may be a threat to commit acts of terrorism or otherwise threaten the national security or public safety of the United States.
Id. at § 4. Nowhere does the March EO define any of the terms used (e.g.
“controlled or formerly controlled by ISIS”) or provide information about the
“thorough review” contemplated in Section 4. On information and belief,
Defendants intend to subject Mr. Tawfeeq to impermissible additional scrutiny
under the March EO and impede or bar his return to the United States, rather than
following the procedures laid out in the INA. ECF No. 33 at ¶¶ 114-126.
President Trump has also explicitly threatened to revoke the March EO in
favor of the January EO, which Defendants previously used to bar LPRs like
Plaintiff. ECF No. 33 at ¶¶ 130-133. Because of the substantial uncertainty caused
by the EOs, Plaintiff’s employer has not permitted him to travel, causing damage
to his career. Id. at 127-135; ECF No. 33-8.
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ARGUMENT Defendants now move to dismiss Plaintiff’s Amended Complaint under Fed. R. Civ. P. 12(b)(1) on two closely-related grounds. First, Defendants claim that Plaintiff lacks standing because his injuries are “conjectural and hypothetical” and rest on an “attenuated chain of possibilities.” ECF No. 36-1 at 17-18. Second, Defendants assert that Plaintiff’s claims relate to the revoked January EO and are thus moot. See id. at 19-22. Defendants also state that the EO does not apply to Plaintiff because Plaintiff would not seek “admission” upon return from abroad, a contention that Plaintiff assumes goes to both standing and mootness. See id. at 22-24. Defendants’ standing and mootness arguments fail.2 I. Legal Standards In the Eleventh Circuit, “it is extremely difficult to dismiss a claim for lack of subject matter jurisdiction.” Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A., 104 F.3d 1256, 1260 (11th Cir. 1997). With regard to standing, Defendants correctly identify two types of 12(b)(1) motions: (1) facial motions in which the
2 Defendants make the unfounded argument that the Department of State should be dismissed. ECF No. 36-1 at 1 n.1. Plaintiff has properly alleged numerous facts about that agency’s participation in the EO’s implementation. See, e.g., ECF No. 33 at ¶¶ 30-31, 68, 71. Defendants even attach to their own Motion a press release highlighting the Department of State’s role in drafting the EO. ECF No. 36-3 at 2.
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Court assumes the complaint is true (as with a 12(b)(6) motion) and determines whether the Plaintiff has properly alleged standing, and (2) factual motions in which the Court can examine extraneous materials and need not accept Plaintiff’s allegations as true. See Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). Defendants fail, however, to specify which type of motion they raise here.
Defendants appear largely to accept Plaintiff’s well-pled allegations as true, although at times the Motion impermissibly questions those allegations. See, e.g., ECF No. 36-1 at 4 (complaining that Plaintiff “speculates” about delay caused by the January EO). Plaintiff thus assumes for purposes of this response that Defendants intend to levy a facial challenge. As such, this Court should assume that Plaintiff’s allegations are true and “presume that the general allegations in the complaint encompass the specific facts necessary to support those allegations.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104 (1998); Lawrence v. Dunbar, 919 F.3d 1525, 1529 (11th Cir. 1990) (on a facial attack “allegations in [the] complaint are taken as true for purposes of the motion”).
Defendants also, however, attach to their Motion two additional documents—(1) a letter from the Attorney General and Department of Homeland Security (“DHS”) Secretary Kelly and (2) a DHS press release—relating to the March EO. Consideration of these documents, which Defendants apparently
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intend to offer as proof regarding how Plaintiff will be treated under the March EO, see id. at 11, are permissible only on a factual motion to dismiss. Factual motions to dismiss should not be entertained when the facts at issue—in this case how Defendants’ agents have implemented or will implement the March EO—implicate the merits of Plaintiff’s cause of action. See Morrison v. Amway Corp., 323 F.3d 920, 925-28 (11th Cir. 2003). If the Court is inclined to treat Defendants’ motion as a factual challenge, Plaintiff believes that the Court should grant discovery and/or an evidentiary hearing to probe these apparently disputed facts concerning the March EO’s implementation. See Lawrence, 919 F.2d at 1529-30 (faulting the district court for resolving a factual 12(b)(1) motion on the basis of an affidavit without “further jurisdictional discovery or an evidentiary hearing”); Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir. 1981) (“[T]he district court must give the plaintiff an opportunity for discovery and for a hearing that is appropriate to the nature of the motion to dismiss.”).
On mootness, Defendants bear the steep burden of convincing this Court that President Trump’s voluntary withdrawal of the January EO renders Plaintiff’s case moot. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (defendant bears the “burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected
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to recur”); Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir. 2007) (“The formidable, heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” (quotations omitted)).
II. Plaintiff Has Properly Pled Standing. “The requirements for standing in declaratory judgment actions are the same in other cases.” Drew v. Safeco Ins. Co. of Ill., 578 Fed. Appx. 954, 957 (11th Cir. 2014). Plaintiff must show “(1) injury in fact, (2) a causal link between the defendant’s conduct and the injury, and (3) that a favorable verdict will likely redress the injury.” Id. Plaintiff’s allegations demonstrate standing here.
A. Injury Standing “requires only a minimal showing of injury,” whether past or imminent. Fla. State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1165 (11th Cir. 2008). For imminent future injury, the plaintiff must establish “a realistic danger of sustaining a direct injury as a result of” a law’s “operation or enforcement” but “does not have to await the consummation of the threatened injury to obtain preventive relief.” Id. at 1161. Injury requirements are met when a “law is aimed directly at” Plaintiff if his “interpretation of the [law] is correct,” and absent good reason to believe that the law will not be enforced against him.
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Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392-93 (1988). The government’s attempt at narrowly construing an executive order “does not limit…standing to challenge a law that is subject to multiple interpretations.” Cty. of Santa Clara v. Trump, No. 17-CV-00485-WHO, 2017 WL 1459081, at *8 (N.D. Cal. Apr. 25, 2017) (finding standing to challenge prospective application of an executive order from Pres. Trump relating to immigration enforcement).
Defendants first complain that Plaintiff’s injuries are “conjectural and hypothetical” and based on an “attenuated chain of possibilities.” ECF No. 36-1 at 17-18. They are wrong. Plaintiff cannot travel because he does not know if he will be permitted to re-enter the country if he leaves. Therefore, Plaintiff cannot leave the country even though his job duties necessitate travel.
Plaintiff lays this out in a logical progression of past and future injury based on Defendants’ actions and statements. Plaintiff works for a prominent news organization covering North Africa and the Middle East, a position in which he must travel internationally on a regular basis. ECF No. 33 at ¶ 127. But for the EOs at the heart of this case, Plaintiff’s employer likely would have sent him out of the country on several occasions to cover stories. Id. at ¶ 128; ECF No. 33-8. Plaintiff visited Iraq as recently as January 2017 and has been part of CNN’s coverage concerning the U.S. military and ISIS in Iraq. ECF No. 33 at ¶¶ 3, 48, 51.
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The fact that Plaintiff remains grounded due to uncertainty regarding his rights has resulted in damage to his career. Id. at ¶¶ 127-135.
Indeed it is Defendants who suffer from a lack of plausibility as a legal matter. The provisions of the March EO relating to Iraqis are per se ultra vires as applied to a returning LPR, as Plaintiff has alleged. INA § 101(a)(13)(C) provides the only legal basis for providing the “admission” scrutiny to an LPR. But the EO explicitly requires a border agent to conduct a “thorough inquiry” to at least some LPRs—at a minimum those who, in the border agent’s view, are seeking an “immigration benefit” and who are returning from an area that was or is under ISIS control. The EO is silent as to what the implications are to this added scrutiny and who bears the burden of proof under that inquiry. Will Mr. Tawfeeq need to make a showing that he is not a security threat and/or that he is not seeking an “immigration benefit”? On that entirely plausible reading of Section 4, the March EO impermissibly adds to the criteria under INA § 101(a)(13)(C).
Defendants also complain that Plaintiff has not yet announced a travel date. See, e.g., ECF No. 36-1 at 13. Eleventh Circuit caselaw only requires Plaintiff to allege the manner in which the injury will occur and a fixed time period in the future in which it is likely. See, e.g., Florida State Conference of N.A.A.C.P., 522 F.3d at 1161 (“[P]laintiffs here have alleged when and in what manner the alleged
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injuries are likely going to occur. Immediacy requires only that the anticipated injury occur with some fixed period of time in the future, not that it happen in the colloquial sense of soon or precisely within a certain number of days, weeks, or months.”). Plaintiff has identified the manner of the alleged injury (impediments to his return to the United States) and when they are likely to occur (on a future return from a trip abroad, of the type he took in January and would have taken again but for the EOs issued in the period from January to March). The caselaw is clear that Plaintiff need not travel under the March EO to challenge it. See, e.g., Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979).3 Plaintiff’s showing is thus sufficient for standing. See also, e.g., Ga. Latino Alliance for Human Rights v. Governor of Ga., 691 F.3d 1250, 1258 (11th Cir. 2012) (holding that attorney working with undocumented immigrants had standing to challenge state statute on pre-enforcement basis based on credible threat of its application to him at future date); Florida State Conference of N.A.A.C.P., 522 F.3d at 1163-64 (finding probabilistic harm capable of satisfying injury in the “undemanding Article III sense”).
3 Defendants cannot blame Plaintiff for not putting himself at risk when their actions caused the chilling effect on his travel. Cf., e.g. Pittman v. Cole, 267 F.3d 1269, 1283-84 (11th Cir. 2001) (judicial advisory opinion that caused judicial candidates to self-censor their speech gave rise to standing).
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Defendants also repeatedly minimize Plaintiff’s prior injury as a mere thirtyminute airport delay. See, e.g., ECF No. 36-1 at 13. Whatever the rhetorical value of that point, the caselaw is clear that the duration of the violation of one’s rights does not affect standing. A plaintiff need make “only a minimal showing of injury.” Florida State Conference of N.A.A.C.P., 522 F.3d at 1165. In one recent case, the Eleventh Circuit found standing to challenge changes to voter rolls when plaintiffs were misidentified as non-citizens but were permitted to vote. See Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1341 (11th Cir. 2014). Misidentification of Plaintiff as an alien seeking admission similarly suffices for standing here, even though the government denied Plaintiff his rights with ruthless efficiency. Indeed the only case the government can muster for its new “30 minutes delay is OK” standard is a single, inapposite Fourth Amendment case. See ECF 36-1 at 21-22. Mr. Tawfeeq here raises no Fourth Amendment claims, and surely Defendants do not assert that Plaintiff’s right to return to his home as an LPR depends on how quickly an immigration officer can wrongfully send him away.
Defendants’ focus on airport delays also completely ignores the prospective harms that Plaintiff alleges. Plaintiff has alleged that, under the January EO, Defendants prohibited LPRs like Plaintiff from boarding flights, turned them away when they arrived at a U.S. port of entry, and subjected them to improper screening.
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ECF No. 33 at ¶¶ 5, 78-79. But Plaintiff has also alleged that this behavior continues under the March EO and that the President has stated he may revoke the March EO in favor of returning to the January EO. Id. at ¶¶ 114, 122-25. Thus, not only has Plaintiff alleged sufficient harm for standing based on past behavior, he also alleges that Defendants at present are violating the rights of similarly situated individuals and would violate his rights if he travelled.
Defendants also, puzzlingly, argue that Plaintiff has not alleged how the March EO’s “thorough review” would constitute a judicially cognizable injury. ECF No. 36-1 at 18. Plaintiff has, however, (i) presented a complete legal theory about how imposing additional screening on LPRs like Plaintiff violates their right to be treated according to the returning resident screening under INA § 101(a)(13)(C), (ii) alleged that Defendants are using the March EO to prevent LPRs from returning to the U.S. in violation of their legal rights, and (iii) alleged that Plaintiff would be similarly mistreated if he returned from abroad. See, e.g., ECF 33 at ¶¶ 92-126. Defendants’ arguments apparently rest on the idea their agents’ “thorough review” is nothing more than security theater, which presents a factual dispute for another time.
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B. Causal Link Plaintiff has also properly alleged the requisite causal link between the harm that he alleges—being denied entry or being subjected to improper additional screening—and Defendants’ behavior. Plaintiff has alleged that Defendants are charged with admitting aliens, previously violated Plaintiff’s rights under the January EO, and continue to violate the rights of Iraqi LPRs under the March EO. Defendants suggest that causality fails because Plaintiff is not covered by the EO’s terms, as he will not seek “admission” after a brief trip abroad. See, e.g., ECF No. 36-1 at 17. Unfortunately for Defendants, the March EO does not apply only to those Iraqis who seek “admission”—it also applies to those who seek any “other immigration benefit,” a term that neither the March EO nor the immigration law defines. ECF No. 33-2 at § 4. Surely an LPR who seeks to return to the United States under INA § 101(a)(13)(C) seeks to benefit from that provision and thus comes within a plausible reading of the March EO, even if he does not as a legal matter seek “admission.” How CBP officers are reading the ambiguous EO is a factual question best dealt with at the discovery or summary judgment stage and cannot be resolved now by the Court. But Defendants’ argument concerning whether Plaintiff will fall within the March EO as seeking “admission” suffers from another fatal flaw. Defendants
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seek to focus the Court’s attention on the legal issue on which the parties now apparently agree—that a returning LPR should be treated according to INA § 101(a)(13)(C) and thus generally should not be treated as seeking “admission.” The problem for Defendants is the closely related factual issue of whether their agents will actually treat Plaintiff as seeking admission when he returns. Plaintiff alleges that CBP officials already improperly treated him as seeking admission under the January EO and that they continue to do so to other LPRs under the March EO. Whatever the outcome of the legal question of whether Plaintiff should be treated as seeking admission, the factual question of whether he will be treated as seeking admission cannot yet be resolved by this Court. Have Defendants issued guidance to their agents in the field such that Plaintiff can be assured that his rights will be respected? Presumably not. The terms of the March EO could certainly cause Defendants’ agents to mistreat Plaintiff again, and there are no facts available for Defendants to argue that causality is otherwise interrupted.
C. Redressability Finally, the injuries that Plaintiff alleges are fully redressable by this Court. Plaintiff seeks clarification of his rights under the March EO. He seeks injunctive and mandamus relief that would require Defendants to issue guidance to their officers—who will actually be admitting Plaintiff at the airport—regarding how
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they are to implement the March EO in light of the INA. In essence, Plaintiff seeks this Court’s assistance in ensuring that Defendants have properly understood and implemented the March EO in light of the complex legal framework here and that they have conveyed that proper implementation to their agents in the field. Such relief would address Plaintiff’s concerns and vindicate his rights.4
III. Plaintiff’s Case Is Not Moot. Defendants separately allege that Plaintiff’s case is now moot because the January EO has been revoked. As an initial matter, Defendants’ argument appears to be only that the claims under the January EO—not the March EO—are mooted. For the reasons discussed in the prior section, Plaintiff’s claims under the March EO are live because the March EO remains in effect and applies to Plaintiff. Defendants allege, however, that because they have voluntarily ceased the challenged conduct under the January EO, Plaintiff’s claims relating to that EO are moot. “[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful
4 Other Courts around the country have found standing to challenge the March EO on claims far more attenuated than those that Plaintiff advances here. See, e.g., Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 1018235, at *5-7 (D. Md. Mar. 16, 2017) (holding that LPRs who sponsored visa applications for family members affected by March EO travel ban have standing to challenge the March EO).
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behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000).
The problem for Defendants’ arguments regarding the January EO is twofold. First, as described above, Plaintiff’s claims relate primarily to the March EO—not the now-revoked January EO. Defendants apparently hope, via a mootness claim, to remove their conduct under the January EO from the Court’s consideration. But Defendants’ disregard for the rights of LPRs under the January EO remains relevant, for example, to the probability that they will again disregard Plaintiff’s rights under the March EO. As Defendants freely admit in their Motion, the March EO was promulgated in response to the concerns expressed in federal court challenges to their conduct under the January EO. See ECF No. 36-1 at 9.
Second, the President has himself publicly contemplated returning to the January EO. See ECF No. 33-9. Specifically, at a political rally days after signing the March EO, President Trump complained that the March EO was a “watered down version of the first order” that was “tailored to the dictates” of a “flawed” Ninth Circuit ruling and that he believed that “we ought to go back to the first one and go all the way” to the Supreme Court. ECF No. 33 at ¶¶ 130-32. Defendants bear “[t]he formidable, heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.” Sheely v. MRI
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Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir. 2007) (quotations omitted). See also Friends of the Earth, 528 U.S. at 190 (“[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”). Given that the President has recently contemplated returning to the problematic January EO, Defendants cannot show with certainty that the January EO is irrelevant.
And even if Defendants are correct that withdrawal of the January EO produced mootness, their arguments fail under the mootness exception for voluntary cessation. “It long has been the rule that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.” Troiano v. Supervisor of Elections in Palm Beach Cty., Fla., 382 F.3d 1276, 1283 (11th Cir. 2004) (quotation omitted). Courts must consider three factors: “(1) whether the challenged conduct was isolated or intentional, as opposed to a continuing and deliberate practice; (2) whether the defendant’s cessation of the conduct was motivated by a genuine change of heart or timed to anticipate suit; and (3) whether, in ceasing the conduct, the defendant has acknowledged liability.” Thomas v. Branch Banking & Trust Co., 32 F. Supp. 3d 1266, 1268-69 (N.D. Ga. 2014) (Batten, Sr., J.).
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Here, Defendants’ conduct was—and is—continuing and deliberate. The January EO was part of an intentional policy intended to circumvent the rights of LPRs, and President Trump has publicly pined for reinstatement of that flawed EO. Even if this Court finds that Defendants have ceased their unlawful conduct under the January EO, both the timing of that cessation and the actual text of the March EO suggest that the new EO was related to the numerous lawsuits filed to challenge the EO rather than a true “change of heart.” See ECF No. 33-2 at § 1(c).
Admittedly, a government is generally entitled to a presumption that once it has voluntarily ceased an illegal action, the objectionable behavior will not recur. Troiano, 382 F.3d at 1283. Critically, though, the government does not enjoy that presumption until the faulty policy has been “unambiguously terminated” and not when—as here—the government apparently intends to alternate between equally unlawful executive orders and stymy judicial review of its unlawful conduct. Id. at 1285. See also, e.g., City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 and n. 11 (1982) (finding no mootness when a city had indicated it would reenact a challenged ordinance).
The Court should also decline to find mootness because Defendants’ conduct here fits the “capable of repetition, yet evading review” exception to mootness. This exception requires that the Court find: (1) a reasonable expectation
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or a demonstrated probability that the same controversy will recur involving the same complaining party, and (2) the challenged action was too short in duration to be fully litigated prior to its cessation or expiration. See News-Journal Corp. v. Foxman, 939 F.2d 1499, 1507 (11th Cir. 1991). This exception is available when the challenged governmental activity casts a “brooding presence” over a party’s interests. Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122 (1974). See, e.g., Hall v. Bennett, 999 F. Supp. 2d 1266, 1269-70 (M.D. Ala. 2014) (permitting challenge relating to special election based on likelihood that government would hold future, similar elections). Here Defendants clearly believe that the President has the ability to suspend the entry of returning LPRs into the United States without regard to the INA. Plaintiff deserves to have his statutory and constitutional rights adjudicated to avoid the “brooding presence” of that policy— whether under the March EO or under a renewed application of the January EO.
IV. Conclusion For the foregoing reasons, Plaintiff requests that the Court deny Defendants’ Motion to Dismiss. Pursuant to Local Rule 7.1(E) and the Court's standing order regarding motions, ECF No. 34 at ¶ 19, Plaintiff requests oral argument on this Motion in light of the important issues raised and their complexity. And as
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discussed above, if the Court intends to treat this Motion as one for factual

dismissal, Plaintiff believes that the hearing should be evidentiary in nature.

DATED May 8, 2017

Respectfully submitted,

/s/ Daniel P. Pierce Theresia M. Moser Georgia Bar No. 526514 Moser Law Co. 112 Krog Street N.E., Suite 26 Atlanta, Georgia 30307 Phone: (404) 537-5339 Fax: (404) 537-5340 tmoser@moserlawco.com

Carl W. Hampe (pro hac vice) Daniel P. Pierce (pro hac vice) Fragomen, Del Rey, Bernsen & Loewy LLP 1101 15th St. NW, Suite 700 Washington, DC 20005 Phone: (202) 223-5515 Fax: (202) 371-2898 champe@fragomen.com dpierce@fragomen.com

Attorneys for Plaintiff

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CERTIFICATE OF FONT AND POINT SELECTION Undersigned counsel hereby certifies, pursuant to L.R. 7.1(D), N.D. Ga., that the foregoing PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS was prepared in Times New Roman, 14 point font, which is one of the font and point selections approved in L.R. 5.1, N.D. Ga.
/s/ Daniel P. Pierce Daniel P. Pierce Attorney for Plaintiff

Case 1:17-cv-00353-TCB Document 37 Filed 05/08/17 Page 27 of 27

CERTIFICATE OF SERVICE I hereby certify that I have this day filed a true and correct copy of the

within and foregoing PLAINTIFF’S OPPOSITION TO DEFENDANTS’

MOTION TO DISMISS by using the Court’s CM/ECF, which will automatically

send e-mail notification of this filing to the following counsel of record:

Sheetul S. Wall Department of Justice - Office of Immigration Litigation P.O. Box 868 Ben Franklin Station 450 5th Street N.W. Washington, D.C. 20044 (202) 598-2668 Email: Sheetul.S.Wall2@usdoj.gov

This 8th day of May 2017.

/s/ Daniel P. Pierce Daniel P. Pierce

Attorney for Plaintiff

 
 Case 1:17-cv-00353-TCB Document 40 Filed 06/06/17 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

*

TAWFEEQ,

*

*

Plaintiff,

*

*

v.

*

*

JOHN F. KELLY, Secretary, U.S. *

Department of Homeland Security, *

et. al.

*

*

Defendants.

*

*

Civil Action No.: 1:17-CV-353-TCB
DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS SECOND AMENDED COMPLAINT

Defendants hereby reply to Plaintiff’s Opposition to Defendants’ Motion to

Dismiss (ECF No. 37) (hereinafter, “Pl. Opp.”). Plaintiff makes no allegations that

Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017), titled “Protecting the

Nation from Foreign Terrorist Entry Into the United States” (“the Order”) is invalid and

does not seek to enjoin enforcement of any provision thereof. (See Am. Compl. at 39.)

Rather, Plaintiff asks this Court to preemptively issue a writ of mandamus ordering the

government to apply the Order and the law to Plaintiff, and an injunction against not

misapplying the law to Plaintiff. (Am. Compl. at 39.)

For purposes of this filing, Defendants accept as true Plaintiff’s assertion that he is

an Iraqi lawful permanent resident (“LPR”) to whom the six categorical exceptions found
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in §101(a)(13)(C)(i)-(vi) of the Immigration and Nationality Act (“INA”), 8 U.S.C §1101(a)(13)(C)(i)-(vi), do not apply. (Id. at ¶ 100.)
I. Plaintiff’s Claims Are Not Justiciable A. Plaintiff lacks standing because he has not suffered an injury that is fairly traceable to the Order.
Since the Order’s effective date, March 16, 2017, Plaintiff does not allege he or any other Iraqi LPR similarly situated has been treated unlawfully in connection with the Order. Plaintiff alleges he has not traveled since the Order’s effective date and cites to Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979), for the proposition that “Defendants cannot blame Plaintiff for not putting himself at risk when their actions caused the chilling effect on his travel.” (Pl. Opp. at 15 n.3.)
Babbitt does not support Plaintiff’s standing argument. There, the Supreme Court acknowledged that abstract questions are not justiciable by a federal court because there is no case or controversy. Id. at 297-98. (plaintiffs lacked standing where they “do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible,” and holding that a threatened injury had to be “certainly pending” to result in standing). Thus, Babbitt does not support Plaintiff’s claim to standing: the Parties agree that section 2 of the Order does not apply to Iraqis, (Am. Compl. at ¶ 10), and Plaintiff has alleged no facts that would make section 4 of the
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Order applicable to him. (Pl. Opp. at 37). Plaintiff’s alleged injury stems only from his uncertainty whether government employees will require Plaintiff to go through the “admission” process rather than allowing him entry as an LPR under INA §101(a)(13)(C), 8 U.S.C §1101(a)(13)(C). Most fatal to his claim, Plaintiff does not allege that he or any other LPR with Iraqi citizenship has ever been required to apply for admission at the border upon return from travel abroad due solely to the provisions of the Order,1 or that anyone in the government has threatened to apply it in such situations.
B. Plaintiff lacks standing because all of Plaintiff’s claims of imminent harm relate to his own unreasonable uncertainty
Plaintiff’s claims of imminent harm center on his feelings of uncertainty with respect to section 4 of the Order even though he does not allege any circumstance under which it would apply to him. (Def. Mem. in Supp. of Mot. to Dism. at 13-14, 16, and Am. Compl. at ¶ 114.) Plaintiff seeks a preemptive order of mandamus from this Court compelling Defendants “to provide instructions to their employees to allow lawful [permanent] residents like Plaintiff to return to the United States under the criteria laid out in INA §101(a)(13)(C).” (Am. Compl. at 39.) However, Plaintiff does not allege that
1 LPRs who fall within one of the categories enumerated in INA §101(a)(13)(C)(i)(vi), 8 U.S.C §1101(a)(13)(C)(i)-(vi), are deemed to be seeking admission, irrespective of the Order. These statutory categories include LPRs who have committed certain crimes or who have abandoned their LPR status.
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any government employee has failed to apply INA §101(a)(13)(C), 8 U.S.C §1101(a)(13)(C) since the effective date of the Order.2
Without alleging any supporting facts, Plaintiff attempts to show imminent harm by alleging his unfounded belief that “Defendants intend to subject him to impermissible additional scrutiny under the March EO and impede or bar his return to the United States, rather than following the procedures laid out in the INA.” (Pl. Opp. at 8.) Plaintiff cites to a voter registration case where the Court found that the plaintiffs’ averment “that they intend to increase voter registration efforts and anticipate increased registration applications ahead of the upcoming presidential election” was sufficient to meet the immediacy requirement in showing imminent injury. (Pl. Opp. at 12). See Florida State Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008).
Here, Plaintiff contends he meets the immediacy requirement because the injury is likely to occur “on a future return from a trip abroad, of the type he took in January and would have taken again but for the EOs issued in the period from January to March.” (Pl. Opp. at 15.) Plaintiff does not identify, even generally, if and when he intends to travel
2 Plaintiff alleges “On information and belief, Defendants intend to implement §1(g) and §4 of [the Order] to encumber the return of Iraqi lawful permanent residents,” and that it “would be applied to Plaintiff when he presents himself for inspection after a trip abroad.” (Am. Compl. at ¶ 125 & 126; see also Pl. Opp. at 8.) However, Plaintiff alleges no facts to support these speculative assertions.
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abroad and return to the United States. Nor does he articulate how the Order would encumber his return if he did travel given that an LPR returning to the United States is not applying for an immigration benefit except under certain limited circumstances that do not apply here. “Such ‘some day’ intentions—without any description of concrete plans, or indeed even any specification of when the someday will be—do not support a finding of the ‘actual or imminent’ injury” that is required for standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992). Thus, he does not meet the immediacy requirement.
Plaintiff cites to Virginia v. American Booksellers Association, 484 U.S. 383, 39293 (1988), for the proposition that the immediacy requirements of imminent harm are met when the law is aimed directly at an individual and the individual’s interpretation of the law is correct. (Pl. Opp. at 12-13.) In that case, there was no dispute that the criminal statute was aimed at the plaintiffs. See Am. Bookseller’s Ass’n., 484 U.S. at 384. But in this case, the Parties agree that sections 2 and 4 of the Order are not aimed at Plaintiff. Instead, Plaintiff’s own allegations admit that his alleged prospective injury stems from conjecture—that government employees may not know the law and may apply section 4 to Plaintiff in a manner contrary to law if Plaintiff were to travel abroad and return to the United States. (Pl. Opp. at 19 “In essence, Plaintiff seeks this Court’s assistance in ensuring that Defendants have properly understood and implemented the March EO . . .
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and that they have conveyed that proper implementation to their agents in the field.”). The assertion that government employees might incorrectly apply the law is entirely speculative, is not supported the by language of the Order, and there is no precedent to support Plaintiff’s novel claim that this kind of speculation gives rise to standing.
Section 4 of the Order is inapplicable to Plaintiff. Plaintiff’s claims of uncertainty stem from the following language of section 4 of the Order: “An application by any Iraqi national for a visa, admission, or other immigration benefit should be subjected to thorough review.” (Am. Compl. at ¶ 11; Pl. Opp. at 8.) However, as shown below, section 4 of the Order generally does not apply to Plaintiff.
First, notwithstanding Plaintiff’s conjectures that CBP officers would not know that Plaintiff, as a returning LPR,3 is not an applicant for “admission,” (Pl. Opp. at 19), it cannot be disputed that if Plaintiff were to leave the United States, he would not make an application for a visa or “admission” upon his return. Rather, he would be treated as a “returning lawful permanent resident” as a matter of law under INA §101(a)(13)(C), 8 U.S.C §1101(a)(13)(C). Plaintiff’s speculative uncertainty as to whether government employees will perform their duties in accordance with the law is contrary to elementary
3 Defendants again note that, for purposes of this filing, Defendants accept as true Plaintiff’s allegations that he would not be subject to any of the categorical exceptions found in INA §101(a)(13)(C)(i)-(vi), 8 U.S.C §1101(a)(13)(C)(i)-(vi). (Am. Compl. at ¶ 100.)
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presumptions governing the regularity of government action, see United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)4, and does not satisfy the requirement that the threatened injury must be certainly impending. See Clapper v. Amnesty Intern. USA, 133 S. Ct. 1138, 1148 (2013). Rather, Plaintiff’s allegations stack contingency upon contingency, requiring the Court to assume that Government officials will willfully violate the law applicable to Plaintiff at some hypothetical future time and that the Government should be subject to injunctions that resolve no dispute and confer no rights. N.L.R.B. v. Express Pub. Co., 312 U.S. 426, 435 (1941) (an “obey the law” injunction can open a party to contempt proceedings and that such an encumbrance should not be imposed lightly). In sum, Plaintiff’s arguments are a far cry from the actual, imminent, concrete injury necessary to articulate Article III standing, and cannot plausibly form the basis for a writ of mandamus requiring government officials to take specified, hypothetical future action.
Next, Plaintiff argues that he “plausibly” falls within the purview of “other immigration benefit” in section 4 of the Order because he is seeking the benefit of entry as an LPR under INA §101(a)(13)(C), 8 U.S.C §1101(a)(13)(C), which is an immigration
4 “The presumption of regularity supports the official acts of public officers, and in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” Id.
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statute. (Pl. Opp. at 8.) However, merely alleging plausibility does not make it so. Plaintiff ignores the first part of the sentence, “[a]n application by any Iraqi national for a visa, admission, or other immigration benefit.” (Order, § 4) (emphasis added). Here, upon Plaintiff’s possible return to the United States, he would not be making an application for any immigration benefit, such as for “admission” or for a “visa,” at the time of entry upon his return to the United States from a trip abroad, because it cannot be disputed that Plaintiff would be treated as a “returning lawful permanent resident” as a matter of law under INA §101(a)(13)(C), 8 U.S.C §1101(a)(13)(C).5 Thus, Plaintiff cannot allege that there is any “immigration benefit” for which he has or will make an application, and any claims related to past or future harm with respect to the “other immigration benefit” language in section 4 is not cognizable.
Finally, because Plaintiff would not be subject to section 4, as discussed above, Plaintiff is not separately subject to the additional scrutiny that section imposes. The “thorough review” language in section 4 does not change the standard for determining whether an alien is admissible or otherwise entitled to enter, but requires the government to consult with specified agencies, as appropriate, and consider certain information
5 Plaintiff himself alleges he is not subject to any of the categorical exceptions in INA §101(a)(13)(C)(i)-(vi), 8 U.S.C §1101(a)(13)(C)(i)-(vi), and Defendants accept this as true for this filing. (Am. Compl. at § 100.)
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regarding possible connections of an applicant with national security or public safety threats. Given that Plaintiff would be a returning LPR who is not treated as an applicant for admission and would not be seeking “admission” or applying for any other “other immigration benefit” at the border upon his return, the “thorough review” requirement of section 4 would not apply to him.
Notwithstanding the Order, “[a] person claiming to have been lawfully admitted for permanent residence must establish that fact to the satisfaction of the inspecting officer and must present proper documents.” 8 C.F.R. § 235.1(f)(1). The fact that Plaintiff, like every other person in the world seeking to enter the United States, might be subject to inspection pursuant to binding law unrelated to the Order cannot plausibly serve as the basis for cause of action articulated in Plaintiffs’ pleadings. Therefore, Plaintiff has not articulated a past or ongoing injury related to section 4 of the Order.
C. This Court may not issue an advisory opinion regarding the Revoked Order.
Plaintiff is not disputing that Executive Order No. 13,769 (“Revoked Order”) was explicitly revoked by the Order, but rather seeks a declaration from this Court that his 30minute delay at Atlanta airport on January 30, 2017, was a refusal of entry into the United States pursuant to INA §101(a)(13)(C) on the basis of the Revoked Order. (Am. Compl at 39.) But such a declaration is prohibited under Article III which limits courts to deciding
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live cases and controversies. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (A case is moot unless the litigant continues to have a personal stake in the outcome of the suit throughout all stages of federal judicial proceedings.); Spencer v. Kemna, 523 U.S. 1, 7–8 (1998) (If the litigant loses such a stake, the court must dismiss the petition rather than issue an advisory opinion on an abstract proposition of law.) Any declaration by this Court as to the character or lawfulness of any delay experienced by Plaintiff in January would have no practical effect on the Parties because Plaintiff’s alleged delay is over, and because the Revoked Order was revoked there is absolutely no likelihood that Plaintiff will be affected by the Revoked Order in the future. Any decision by this Court would amount to an advisory opinion, which this Court lacks the authority to issue.
Moreover, even if this Court could issue a declaration about the source and lawfulness of Plaintiff’s alleged 30-minute delay at the Atlanta airport, it would have no impact on Plaintiff’s challenge to the Order. Plaintiff fails to explain how any delay on January 30, 2017 that might have resulted from the implementation of the Revoked Order, would be an indicator for how the current Order is being or will be implemented in the future. The content and the implementation of the Order are significantly different from that of the Revoked Order. See Washington v. Trump, No. C17-0141JLR, 2017 WL 1045950, *2-*3 (W.D. Wash. Mar. 16, 2017) (explaining the numerous substantive and
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procedural differences between the two Executive Orders, including the delayed implementation of the current Order). Most relevant here, the entry bar in the new Order does not apply to LPRs, so the circumstance alleged by Plaintiff cannot recur. In any event, an alleged delay of 30 minutes is not a cognizable legal injury and cannot form the basis for a valid claim. Cf. United States v. Flores-Montano, 541 U.S. 149, 155 n.3 (2004) (noting in the context of a Fourth Amendment challenge that it is “clear that delays of one to two hours at international borders are to be expected.”).
D. All of Plaintiff’s Claims Arising from the Revoked Order are Moot and No Exception to the Mootness Doctrine Applies
Plaintiff argues his claims related to the Revoked Order are not moot because Defendants voluntarily ceased the alleged misconduct, (Pl. Opp. at 22), and because the alleged misconduct “is capable of repetition but could evade judicial review.” (Pl. Opp. at 5). Both of these arguments fail. The Eleventh Circuit recognizes two exceptions to the mootness doctrine: (1) the “voluntary cessation” exception, and (2) the “capable of repetition yet evading review” exception. See Church of Scientology Flag Serv. Org. v. City of Clearwater, 777 F.2d 598, 606 n. 21 (11th Cir. 1985). Neither applies here.
First, the “voluntary cessation” exception provides that “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.” Sec'y. of Labor v. Burger King Corp., 955 F.2d
11

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681, 684 (11th Cir. 1992). “However, governmental entities and officials have been given considerably more leeway than private parties in the presumption that they are unlikely to resume illegal activities.” Coral Springs St. Sys. v. City of Sunrise, 371 F.3d 1320, 132829 (11th Cir. 2004). In addition, where government parties are at issue, the exception does not apply where a superseding statute or regulation replaces the statute or regulation at issue, unless there is a “substantial likelihood that the challenged” statutory or regulatory “language will be reenacted.” Id. Thus, “[w]hen government laws or policies have been challenged, the Supreme Court has held almost uniformly that cessation of the challenged behavior moots the suit.” Troiano v. Supervisor of Elections, 382 F.3d 1276, 1283 (11th Cir. 2004); accord Log Cabin Republicans v. United States, 658 F.3d 1162, 1168 (9th Cir. 2011) (“voluntary cessation is different from a statutory amendment or repeal. Repeal is ‘usually enough to render a case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed.’”) As the Eleventh Circuit recently explained, “[t]he governing principle, as we have distilled it, is that ‘in the absence of evidence indicating that the government intends to return to its prior legislative scheme, repeal of an allegedly offensive statute moots legal challenges to the validity of that statute.’” U.S. v. Georgia, 778 F.3d 1202, 1205 (11th Cir. 2015). Moreover, Plaintiffs bear the burden of proving otherwise, because “as a general matter, ‘voluntary cessation by a government actor gives rise to a rebuttable presumption that the
12

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objectionable behavior will not recur.’” Id.; accord National Black Police Ass'n v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997) (collecting cases) (“the mere power to reenact a challenged law is not a sufficient basis on which a court can conclude that a reasonable expectation of recurrence exists. Rather, there must be evidence indicating that the challenged law likely will be reenacted.”). No such evidence is present here.
Plaintiff’s fear that the Revoked Order might become active again, (Pl. Opp. at 21), is unfounded. He concedes the Order contains explicit language revoking it. (Id.) (Order, § 13 (“Executive Order 13769 of January 27, is revoked as of the effective date of this order”)). The government has taken no steps to revive the Revoked Order and Plaintiff alleges no facts to the contrary. Merely alleging that Plaintiff believes the President of the United States “contemplates” returning to the Revoked Order does not meet the “voluntary cessation” exception to the mootness doctrine.6 Rather, as the Eleventh Circuit has explained, voluntary cession does not apply where, as here, the “new policy . . . ‘appears to have been the result of substantial deliberation’ on the part of the alleged
6 The government’s continued commitment to the current Order is evidenced by the government’s recent petition for a writ of certiorari to the Supreme Court in International Refugee Assistance Project v. Trump, -- F.3d --, 2017 WL 2273306 (4th Cir. 207), petition for cert. filed, No. 16-1436 (Jun. 1, 2017).
13

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wrongdoers and has been ‘consistently applied’ in the recent past.” Troiano, 382 F.3d at 1283.
Second, the “capable of repetition yet evading review” exception does not apply here. “To satisfy this standard, [Plaintiffs] must demonstrate (1) a ‘reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party,’ and (2) that the ‘challenged action was in its duration too short to be fully litigated prior to its cessation or expiration.’” See Naturist Soc’y., Inc. v. Fillyaw, 958 F.2d 1515, 1520-21 (11th Cir. 1992) (quoting The News-Journal Corp. v. Foxman, 939 F.2d 1499, 1507 (11th Cir.1991)). “[T]his exception is ‘narrow,’ and applies only in ‘exceptional situations.’” Soliman v. United States, 296 F.3d 1237, 1242-43 (11th Cir 2002) (quoting Fla. Ass'n of Rehab. Facilities, Inc. v. Fla. Dep't of Health and Rehab. Servs., 225 F.3d 1208, 1216-17 (11th Cir. 2000)). Indeed, “the remote possibility that an event might recur is not enough to overcome mootness, and even a likely recurrence is insufficient if there would be ample opportunity for review at that time.” Id.
Plaintiff cannot satisfy this stringent exception. Plaintiff does not allege he will be subjected to any actions, improper or otherwise, pursuant to the Revoked Order again in the future. Thus, he cannot show a “reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party.” See Fillyaw, 958 F.2d at 1520-21. Second, Plaintiff does not allege “that the ‘challenged action was in
14

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its duration too short to be fully litigated prior to its cessation or expiration.’” Id. Therefore, Plaintiff alleges no facts to support “capable of repetition yet evading review” exception to the mootness doctrine.
II. CONCLUSION Based on the foregoing and Defendants’ Motion to Dismiss Amended Complaint and Memorandum in Support thereof, ECF No. 36, Defendants respectfully request the Court dismiss Plaintiff’s Amended Complaint. Pursuant to Local Rule 7.1(E) and this Court’s Instructions to Parties, ECF No. 34 at ¶ 19, Defendants defer to the Court’s customary practice of deciding the matter without oral argument. The matters at issue in this case are not complex and Defendants believe the Court will be able to rule on the papers, without further argument from Parties’ counsel.
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DATED: June 6, 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 Assistant Director Office of Immigration Litigation District Court Section
EREZ REUVENI Senior Litigation Counsel
By: s/ Sheetul S. Wall SHEETUL S. WALL Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 598-2668 Fax: (202) 305-7000 Email: Sheetul.S.Wall2@usdoj.gov
Counsel for Defendants

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Case 1:17-cv-00353-TCB Document 40 Filed 06/06/17 Page 17 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

:

TAWFEEQ,

:

:

Plaintiff,

: CIVIL ACTION

:

v.

: NO. 1:17-CV-353-TCB

:

JOHN F. KELLY, Secretary, U.S.

:

Department of Homeland Security; et al. :

:

Defendants.

:

CERTIFICATE OF COMPLIANCE

I certify that the documents to which this certificate is attached have been prepared

with one of the font and point selections approved by the Court in LR 5.1B for documents

prepared by computer.

s/ Sheetul S. Wall
Sheetul S. Wall Trial Attorney Department of Justice Georgia Bar No. 734724

17

Case 1:17-cv-00353-TCB Document 40 Filed 06/06/17 Page 18 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH

:

TAWFEEQ,

:

:

Plaintiff,

: CIVIL ACTION

:

v.

: NO. 1:17-CV-353-TCB

:

JOHN F. KELLY, Secretary, U.S.

:

Department of Homeland Security; et al. :

:

Defendants.

:

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following lead counsel via CM/ECF:

Theresia Moser Moser Law Co.
This 6th day of June, 2017.

Carl W. Hampe Daniel P. Pierce Fragomen, Del Rey, Bernsen & Loewy, LLP

s/ Sheetul S. Wall Sheetul S. Wall Trial Attorney Department of Justice
Georgia Bar No. 734724

 
 Case 1:17-cv-00353-TCB Document 46 Filed 08/11/17 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MOHAMMED ABDULLAH TAWFEEQ,

Plaintiff,
v.
ELAINE C. DUKE, Acting Secretary, U.S. Department of Homeland Security; et al.,

CIVIL ACTION FILE NUMBER 1:17-cv-353-TCB

Defendants.

O R D E R

This case comes before the Court on Defendants’ motion to dismiss

for lack of subject-matter jurisdiction [36].

I. Background1

Plaintiff Mohammed Abdullah Tawfeeq, an Iraqi national and a

lawful permanent resident (“LPR”) of the United States, lives in Atlanta

but regularly travels to the Middle East, often on short notice, to

1 Because Defendants’ motion raises a facial challenge to Tawfeeq’s amended complaint [33], the Court’s factual recitation is derived from the averments therein, which are presumed to be true. McElmurray v. Consol. Gov’t of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007).

Case 1:17-cv-00353-TCB Document 46 Filed 08/11/17 Page 2 of 22
perform his duties as a CNN journalist. He has filed this lawsuit against various governmental agencies and employees thereof2 claiming that two Executive Orders signed by President Donald J. Trump— Executive Order No. 13,769 (Jan. 27, 2017) (the “January EO”), and Executive Order No. 13,780 (Mar. 6, 2017) (the “March EO”), both titled “Protecting the Nation from Foreign Terrorist Entry into the United States”—violate his rights under the Immigration and Nationality Act (“INA”), the Administrative Procedure Act (“APA”), and the United States Constitution.
On January 27, 2017, President Trump signed the January EO, which purported to immediately suspend “entry into the United States of aliens” from several countries, including Iraq, for a period of ninety days. [33-1] at § 3(c); see also 8 U.S.C. § 1187(a)(12). This temporary
2 Tawfeeq originally named nine Defendants: the Department of Homeland Security (“DHS”); then-Acting Secretary of DHS John F. Kelly; U.S. Customs and Border Protection (“CBP”), an agency under DHS; CBP Acting Commissioner Kevin McAleenan; three CBP employees; the Department of State; and then-Acting Secretary of State Thomas A. Shannon, Jr. Since the filing of this lawsuit on January 30, 2017, Rex W. Tillerson has been appointed Secretary of State and Elaine C. Duke has replaced Kelly as Acting Secretary of DHS. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Tillerson and Duke have been automatically substituted as parties to this action in place of Shannon and Kelly, respectively.
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suspension expressly applied to immigrants (e.g., lawful permanent residents) and non-immigrants (i.e., aliens visiting the United States temporarily) alike. [33-1] at § 3(c).
Two days later, Tawfeeq returned to Hartsfield–Jackson Atlanta International Airport after completing a three-month CNN assignment in Iraq. Upon arrival, a CBP official working at the airport told Tawfeeq that he could be denied entry based on the January EO. The border official scanned Tawfeeq’s passport and green card, questioned Tawfeeq about the duration and purpose of his trip to Iraq, and then sent Tawfeeq to a secondary inspection. After a thirty-minute wait and additional questioning, border officials allowed Tawfeeq to enter the United States. Tawfeeq filed this lawsuit the next day, specifically attacking Defendants’ application of the January EO to lawful permanent residents.
Legal challenges ultimately stifled the implementation of the January EO, and on March 6, 2017, the January EO was revoked and replaced by the March EO. Like its predecessor, the March EO purports to suspend the entry into the United States of foreign nationals from
3

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several countries in the Middle East and Africa, but unlike the January EO, the March EO expressly excludes LPRs from that ban.
In addition, the March EO does not include Iraq among the list of countries whose nationals are barred from entry into this country. Instead, the March EO contains two new provisions aimed at Iraqi nationals. In § 1(g), the March EO declares that “[d]ecisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny . . . .” This sentiment is reiterated in § 4, which provides that any “application by an Iraqi national for a visa, admission, or other immigration benefit should be subjected to thorough review . . . .” The March EO does not explicitly state whether or how either of these sections should be applied to Iraqi LPRs. As a result of this uncertainty, Tawfeeq alleges that CNN has refrained from sending him on various international trips, causing damage to his job performance, reputation, and career that is ongoing as long as this uncertainty persists.
Consequently, after the issuance of the March EO, Tawfeeq filed an amended complaint that contains six causes of action. In counts one,
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two, and five, respectively, he asserts claims for violations of rights secured by the INA, the APA, and the due process clause. These three claims relate to both past harm (the January 29, 2017 incident at the Atlanta airport) and Tawfeeq’s concern about future harm (i.e., having the March EO prospectively applied to him if he were to return to the United States from a trip abroad).
In count three, Tawfeeq seeks a declaratory judgment that the March EO does not apply to returning LPRs, and in count four he requests a writ of mandamus compelling Defendants to allow LPRs to return to the United States under the terms of the INA rather than the March EO.
Finally, count six seeks an award of Tawfeeq’s attorneys’ fees and costs under the Equal Access to Justice Act.
Defendants have moved to dismiss the amended complaint, arguing that claims relating to Tawfeeq’s detention pursuant to the January EO are now moot and that Tawfeeq lacks standing to bring a claim challenging the March EO.
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II. Tawfeeq’s Claims Arising Under the January EO As noted above, Tawfeeq’s amended complaint seeks a declaratory
judgment that Defendants violated his rights under the INA, the APA, and the due process clause by applying the January EO to his January 29, 2017 reentry into the United States. Defendants argue that the March EO’s revocation of the January EO renders these claims moot. In response, Tawfeeq contends that Defendants’ revocation of the January EO falls under the voluntary cessation exception to the mootness doctrine and that the events giving rise to his claims under the January EO are capable of repetition yet evading review.
A. Legal Standard: Mootness “The Constitution of the United States limits the subject matter jurisdiction of federal courts to “Cases” and “Controversies.” CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1269 (11th Cir. 2006). Article III’s case-or-controversy requirement “means that the federal courts cannot exercise jurisdiction over cases where the parties lack standing, or where the issue in controversy has become moot.” Fla.
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Case 1:17-cv-00353-TCB Document 46 Filed 08/11/17 Page 7 of 22
Wildlife Fed’n, Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296, 1302 (11th Cir. 2011).
“By its very nature, a moot suit ‘cannot present an Article III case or controversy and the federal courts lack subject matter jurisdiction to entertain it.’” Nat’l Advert. Co. v. City of Miami, 402 F.3d 1329, 1332 (11th Cir. 2005) (quoting Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1328 (11th Cir. 2004)). “If a lawsuit is mooted by subsequent developments, any decision a federal court might render on the merits of a case would constitute an advisory opinion.” Id.
But an exception to this rule applies when the subsequent developments at issue consist of a defendant’s voluntary cessation of allegedly illegal conduct. United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). “‘Because of the possibility that the defendant could merely return to his old ways, the test for mootness in cases such as this is a stringent one,’” and a case will not be deemed moot unless it is “‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Coral Springs St. Sys., 371 F.3d at
7

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1328–29 (quoting Sec’y of Labor v. Burger King Corp., 955 F.2d 681, 684 (11th Cir. 1992) (alterations adopted)).
“[G]overnmental entities and officials have been given considerably more leeway than private parties in the presumption that they are unlikely to resume illegal activities.” Id. at 1329. Thus, the repeal or amendment of a challenged law generally moots a case to the extent the challenged features of the law are removed. Id. (collecting cases); Nat’l Advert. Co., 402 F.3d at 1332 (“A change in the law, such as amending a zoning ordinance . . . , or a change in other circumstances can give rise to mootness.”).
But even in the context of repealed legislation, courts have declined to find mootness applicable “when the law is reasonably likely to be reenacted or when it is replaced by another constitutionally suspect law.” Coral Springs St. Sys., 371 F.3d at 1330; see also City of Mesquite v. Aladdin’s Castle, 455 U.S. 283 (1982) (denying mootness defense in part because the defendant-city expressly stated an intention to reenact the old law that was being challenged).
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B. Analysis Applying these principles to this case, the Court is compelled to conclude that Tawfeeq’s claims challenging the January EO are moot and the voluntary cessation exception is inapplicable. Initially, it must be noted that none of the Defendants in this case voluntarily ceased enforcing the January EO; instead, once the March EO was signed by the president and took effect, the January EO was revoked. The decision to revoke the January EO was not made by Defendants, and Defendants are not free, absent further action by the president, to again enforce the terms of the revoked January EO. Tawfeeq suggests that President Trump’s statement that “we ought to go back to the [January EO] and go all the way” to the Supreme Court shows a reasonable expectation that the January EO will be reinstated, [37] at 21, but the Court disagrees. Such statements, which the Court notes were made in the context of a political rally days after the March EO was signed, show at most a mere possibility that the president would consider returning to the January EO. There is no
9

Case 1:17-cv-00353-TCB Document 46 Filed 08/11/17 Page 10 of 22
allegation that he has actually taken steps to revive the January EO in the five months since it was revoked.
Significant too is the fact that the January EO was revoked only after multiple courts enjoined its enforcement. “This is not a case where the defendant[s] escaped adjudication of the illegality of [their] actions by voluntarily ceasing its improper conduct before the court could act.” Dubois v. U.S. Dep’t of Agric., 20 F. Supp. 2d 263, 269 (D.N.H. 1998). “In a case such as this, . . . where the potential for recurrence of the challenged conduct is largely eliminated by an enforceable court order, the justification underlying the [voluntary cessation] exception is not present” because the defendants are “not simply free to return to [their] ‘old ways’” once the case is declared moot. Id.; see also Sea-Land Serv., Inc. (Pac. Div.) v. Int’l Longshoremen’s & Warehousemen’s Union, Locals 13, 63 & 94, 939 F.2d 866, 870 (9th Cir. 1991) (“‘[L]egally compelled’ cessation of . . . conduct is not ‘voluntary’ for purposes of this exception to the mootness doctrine.”).
In sum, while there exists the theoretical possibility that the president—a non-party to this case—could revive the January EO and
10

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in so doing effectively undo Defendants’ “cessation” of the conduct Tawfeeq challenges, five months of inaction suggests that is unlikely, and the prior enforceable injunctions ensure that any attempt to reinstate the January EO would be unsuccessful. Under the circumstances present in this case, the Court cannot conclude that the harm to which Tawfeeq complains he was subjected under the terms of the January EO is reasonably likely to recur.3 Thus, Tawfeeq’s claims arising from the January 29, 2017 incident at the Atlanta airport are moot. III. Tawfeeq’s Claims Arising Under the March EO
Having concluded that Tawfeeq’s claims seeking a declaration of his rights under the January EO are moot, the Court turns to Defendants’ argument that Tawfeeq lacks standing to bring claims challenging the March EO.
3 For this reason, the Court finds the exception for issues “capable of repetition yet evading review” equally inapplicable. See Dow Jones & Co. v. Kaye, 256 F.3d 1251, 1256 (11th Cir. 2001) (describing this exception as “narrow” and applicable only where, among other things, “there is a reasonable expectation that the same complaining party will be subject to the same action again”).
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Case 1:17-cv-00353-TCB Document 46 Filed 08/11/17 Page 12 of 22
A. Legal Standard: Standing and Injury Standing, like mootness, is an “essential and unchanging part of
the case-or-controversy requirement of Article III.” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992). “The party invoking federal
jurisdiction bears the burden of proving the essential elements of
standing.” DiMaio v. Democratic Nat’l Comm., 520 F.3d 1299, 1301
(11th Cir. 2008). The Supreme Court has summarized those elements as
follows:
First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560–61.
With respect to injury, a plaintiff bringing a pre-enforcement
challenge to a law that has not yet been applied to him must show that
there is “‘a realistic danger of sustaining direct injury as a result of the
statute’s operation or enforcement.’” Ga. Latino Alliance for Human 12

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Rights v. Governor of Ga., 691 F.3d 1250, 1257 (11th Cir. 2012) (internal punctuation omitted) (quoting Socialist Workers Party v. Leahy, 145 F.3d 1240, 1245 (11th Cir. 1998)). This standard is satisfied if either (1) the plaintiff was threatened with application of the challenged law; (2) the challenged law is likely to be applied to the plaintiff; or (3) there is a “credible threat” that the law will be applied to the plaintiff. Id. at 1257–58.
“While it is unnecessary for a plaintiff to expose himself to actual arrest or prosecution to challenge a statute, [courts] will not accept as plaintiffs persons having no fears of state prosecution except those that are imaginary or speculative.” Id. at 1258 (internal quotations and citations omitted). In addition, “[i]t is not enough that the plaintiff’s complaint sets forth facts from which [a court] could imagine an injury sufficient to satisfy Article III’s standing requirements.” Elend v. Basham, 471 F.3d 1199, 1205 (11th Cir. 2006) (quotations omitted and alteration adopted).
“The standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is
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entitled to an adjudication of the particular claims asserted.” Id. (internal punctuation omitted). The standing inquiry is “especially rigorous when reaching the merits of the dispute would force [a court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819–20 (1997). “In the absence of standing, a court is not free to opine in an advisory capacity about the merits of a plaintiff’s claims.” CAMP Legal Def. Fund, 451 F.3d at 1269 (quotations omitted).
B. Analysis Defendants argue that Tawfeeq’s claimed injury caused by the March EO is too speculative and attenuated to give him standing to sue. Initially, the Court is not persuaded that Tawfeeq’s lack of plans to travel outside the United States on any date certain is dispositive of the injury inquiry. Just as a plaintiff need not expose himself to arrest or prosecution before bringing a legal challenge to a criminal statute, Tawfeeq can bring a pre-enforcement challenge to the March EO’s travel ban—even in the absence of set plans to depart the country—so long as he can show that there exists a “realistic danger of sustaining
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direct injury as a result of the . . . operation or enforcement” of the March EO. Ga. Latino Alliance, 691 F.3d at 1257–58. Thus, the Court will examine whether this standard is satisfied with respect to the various provisions of the March EO.
1. Standing to Challenge § 2 of the March EO The Court easily concludes that Tawfeeq lacks standing to challenge § 2 of the March EO. That provision, which temporarily suspends entry into the United States by nationals from six specified countries, does not apply to Iraqis or lawful permanent residents. There is simply no basis to believe that § 2 would in any way affect the attempted reentry into the United States of an Iraqi LPR such as Tawfeeq. Where a plaintiff has only an “imaginary or speculative” fear that a law will be enforced against him, he has no standing to bring a pre-enforcement challenge to that law. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).
2. Standing to Challenge § 1(g) of the March EO Unlike § 2 of the March EO, § 1(g) does apply to Iraqi nationals, and it does not expressly exclude lawful permanent residents from its
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reach. Nevertheless, the Court concludes that Tawfeeq lacks standing to challenge this provision as well.
Section 1(g) provides, in pertinent part, that “[d]ecisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny . . . .” [33-2] at § 1(g). Tawfeeq has never alleged that he would require a visa to reenter the country after an international trip. He therefore has standing to challenge § 1(g) only if there is a realistic danger that he will be subjected to “additional scrutiny” in connection with seeking an “admission” into the United States.
Under the INA and other immigration laws, “admission” is a term of art, and subject to certain statutory exceptions that do not apply here, a lawful permanent resident returning to the United States “shall not be regarded as seeking an admission into the United States for purposes of the immigration laws.” 8 U.S.C. § 1101(a)(13)(C); see also [33] at ¶110 (alleging that the March EO “cannot be applied to returning residents who by law do not seek ‘admission’ as set forth in 8 U.S.C. § [1]101(a)(13)(C)”).
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Because Tawfeeq avers that § 1(g) of the March EO does not apply to him since he would not be seeking an “admission” when returning to the United States, it is tempting to hastily dismiss his fear of being detained under that provision as “imaginary or speculative.” Babbitt, 442 U.S. at 298. But the amended complaint also alleges that on January 29, 2017, Defendants erroneously processed his reentry as an “admission.” [33] at ¶¶102–14.4 If they were to make that mistake again while the March EO is in place, Tawfeeq could be subjected to “additional scrutiny” under § 1(g).
In other words, Tawfeeq claims standing to challenge the March EO not because it actually applies to him but instead because Defendants are likely to erroneously conclude that it applies to him. He seeks a court order essentially requiring Defendants to comply with the law. See [37] at 20 (“In essence, Plaintiff seeks this Court’s assistance in ensuring that Defendants have properly understood and implemented the March EO in light of the complex legal framework here and that
4 The Court has already concluded that any legal claims arising from the January 29 incident are moot, but the Court will still consider the allegations about Defendants’ conduct vis-à-vis the January EO insofar as those allegations are relevant to his claims relating to the March EO.
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they have conveyed that proper implementation to their agents in the field.”).
Even giving full credit to the amended complaint’s allegations about the January 29, 2017 incident, Tawfeeq takes too broad a view of Article III standing. The Court cannot assume that those tasked with enforcing a law will do so in an unreasonably broad manner, even when they might have done so on one occasion in the past. Indeed, government defendants are presumed to carry out their duty to enforce the law in good faith. See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996). To premise standing on conjecture that governmental agencies will apply a challenged law to individuals whose conduct the text of the law does not actually reach would eviscerate the limitations placed on federal jurisdiction by Article III.
Defendants do not dispute that returning permanent residents do not seek “admission” into the United States. There is no allegation that since January 29, 2017, Defendants have processed any LPR’s reentry as an “admission,” and it is only speculative that they will do so in the future. Moreover, unlike the January EO, which made no special
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mention of permanent residents, the most restrictive part of the March EO—§ 2, which suspends outright entry into the United States by nationals from six countries—carves out an exception for LPRs. It is unlikely that Defendants would apply the March EO in a manner that would disallow the entry of LPRs from Iraq—a country whose nationals can enter the United States—while simultaneously allowing the entry of LPRs from countries whose nationals cannot enter.
Under these circumstances, the Court cannot conclude that there is anything more than a “remote possibility” that Tawfeeq will suffer a future injury by operation of § 1(g) of the March EO, and he therefore lacks standing to challenge that provision. Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1347 (11th Cir. 1999).
C. Standing to Challenge § 4 of the March EO Finally, the Court turns to § 4 of the March EO, which provides that “[a]n application by any Iraqi national for a visa, admission, or other immigration benefit should be subjected to thorough review . . . .” [33-2] at § 4. Although § 4 is similar to § 1(g) in that both apply to applications by Iraqis for visas or admission, § 4 reaches something that
19

Case 1:17-cv-00353-TCB Document 46 Filed 08/11/17 Page 20 of 22
§ 1(g) does not: “[a]n application by any Iraqi national for . . . other immigration benefit[s].”
The Court has already rejected Tawfeeq’s concern that he might be deemed to be seeking “admission” as too speculative to give rise to an Article III injury. Unlike “admission,” however, “other immigration benefits” is not defined in the March EO or in the INA or other immigration laws. “Surely,” Tawfeeq suggests, “an LPR who seeks to return to the United States under INA § 101(a)(13)(C) seeks to benefit from that provision and thus comes within a plausible reading of the March EO, even if he does not as a legal matter seek ‘admission.’” [37] at 18. The Court disagrees.
While there is no precise definition of “immigration benefits,” neither of the two examples that can be gleaned from context—visas and admissions—applies to lawful permanent residents. The amended complaint does not allege that a returning LPR would be seeking an “immigration benefit” or that Defendants have relied on this language to detain returning LPRs. Although Tawfeeq fears that Defendants might detain him based on their determination that he seeks an
20

Case 1:17-cv-00353-TCB Document 46 Filed 08/11/17 Page 21 of 22
“immigration benefit” when returning from abroad, there are no factual averments in the amended complaint suggesting that such a fear is anything other than speculative. The Court cannot conclude that there is a realistic danger that Defendants will apply the “other immigration benefit” language of § 4 to any future reentry by Tawfeeq, and as a result Tawfeeq lacks standing to challenge § 4 of the March EO.
The revocation of the January EO renders moot Tawfeeq’s claims challenging its application to lawful permanent residents. Section 2 of the March EO does not apply to Iraqis or LPRs, and the facts alleged in the amended complaint do not support a finding that Tawfeeq is likely to be adversely affected by either § 1(g) or § 4 of the March EO. Accordingly, he lacks standing and is not an appropriate plaintiff to challenge the March EO. IV. Conclusion
For the foregoing reasons, Defendants’ motion to dismiss [36] is granted, non-party Victor Williams’s motion for leave to file an amicus curiae brief [26] is denied as moot, and the Clerk is directed to close the case.
21

Case 1:17-cv-00353-TCB Document 46 Filed 08/11/17 Page 22 of 22
IT IS SO ORDERED this 11th day of August, 2017. ____________________________________ Timothy C. Batten, Sr. United States District Judge
22

 
 Case: 1:17-cv-353 As of: 08/13/2017 12:10 PM EDT 1 of 7
0months,CLOSED
U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:17−cv−00353−TCB

Tawfeeq v. U.S. Department of Homeland Security et al Assigned to: Judge Timothy C. Batten, Sr Cause: 28:2201 Declaratory Judgment
Plaintiff

Date Filed: 01/30/2017 Date Terminated: 08/11/2017 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Mohammed Abdullah Tawfeeq

represented by Carl W. Hampe Fragomen, Del Rey, Bernsen & Loewy, LLP 1101 15th Street NW Suite 700 Washington, DC 20005 202−349−2174 Email: champe@fragomen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel P. Pierce Fragomen, Del Rey, Bernsen & Loewy, LLP 1101 15th Street NW Suite 700 Washington, DC 20005 202−349−2181 Email: dpierce@fragomen.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Theresia Maria Moser Moser Law Company The Stove Works Suite 26 112 Krog Street, N.E. Atlanta, GA 30307 404−537−5339 Fax: 404−537−5340 Email: tmoser@moserlawco.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
U.S. Department of Homeland Security (DHS)

represented by Sheetul Sheth Wall Department of Justice − Office of Immigration Litigation P.O. Box 868 Ben Franklin Station 450 5th Street NW Washington, DC 20044 202−598−2668 Email: Sheetul.S.Wall2@usdoj.gov ATTORNEY TO BE NOTICED

Case: 1:17-cv-353 As of: 08/13/2017 12:10 PM EDT 2 of 7

Defendant John F. Kelly Secretary of DHS
Defendant U.S. Customs and Border Protection (CBP)
Defendant Kevin A. McAleenan Acting Commissioner of CBP
Defendant Carey Davis Port Director, CBP
Defendant Andy Pryor Manager, CBP
Defendant Shana Wells Manager, CBP
Defendant U.S. Department of State (Department of State)
Defendant Thomas A. Shannon Acting Secretary of State, Department of State
Movant Victor Williams

represented by Sheetul Sheth Wall (See above for address) ATTORNEY TO BE NOTICED
represented by Sheetul Sheth Wall (See above for address) ATTORNEY TO BE NOTICED
represented by Sheetul Sheth Wall (See above for address) ATTORNEY TO BE NOTICED
represented by Sheetul Sheth Wall (See above for address) ATTORNEY TO BE NOTICED
represented by Sheetul Sheth Wall (See above for address) ATTORNEY TO BE NOTICED
represented by Sheetul Sheth Wall (See above for address) ATTORNEY TO BE NOTICED
represented by Sheetul Sheth Wall (See above for address) ATTORNEY TO BE NOTICED
represented by Sheetul Sheth Wall (See above for address) ATTORNEY TO BE NOTICED
represented by Victor Williams 5209 Baltimore Ave. Bethesda, MD 20816 301−951−9045 PRO SE

Date Filed 01/30/2017

# Docket Text
1 COMPLAINT FOR DECLARATORY, MANDAMUS, AND INJUNCTIVE RELIEF filed by Mohammed Abdullah Tawfeeq against Defendants. ( Filing fee $ 400 receipt number 113E−6944220.) (Attachments: # 1 Exhibit A − Executive Order, # 2 Civil Cover Sheet)(aaq) Please visit our website at http://www.gand.uscourts.gov/commonly−used−forms to obtain Pretrial Instructions which includes the Consent To Proceed Before U.S. Magistrate form. (Entered: 01/31/2017)

Case: 1:17-cv-353 As of: 08/13/2017 12:10 PM EDT 3 of 7

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

2 Summons Issued as to Carey Davis, John F. Kelly, Kevin A. McAleenan, Andy Pryor, Thomas A. Shannon, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State and Shana Wells. (aaq) (Entered: 01/31/2017)
Submission of the 1 COMPLAINT FOR DECLARATORY, MANDAMUS, AND INJUNCTIVE RELIEF to District Judge Timothy C. Batten. (aaq) (Entered: 01/31/2017)
3 APPLICATION for Admission of Carl W. Hampe Pro Hac Vice (Application fee $ 150, receipt number 113E−6945025)by Mohammed Abdullah Tawfeeq. (Moser, Theresia) (Entered: 01/31/2017)
4 APPLICATION for Admission of Daniel P. Pierce Pro Hac Vice (Application fee $ 150, receipt number 113E−6945170)by Mohammed Abdullah Tawfeeq. (Moser, Theresia) (Entered: 01/31/2017)
APPROVAL by Clerks Office re: 4 APPLICATION for Admission of Daniel P. Pierce Pro Hac Vice (Application fee $ 150, receipt number 113E−6945170). Attorney Daniel P. Pierce added appearing on behalf of Mohammed Abdullah Tawfeeq (pmb) (Entered: 02/01/2017)
APPROVAL by Clerks Office re: 3 APPLICATION for Admission of Carl W. Hampe Pro Hac Vice (Application fee $ 150, receipt number 113E−6945025). Attorney Carl W. Hampe added appearing on behalf of Mohammed Abdullah Tawfeeq (pmb) (Entered: 02/01/2017)
5 Emergency MOTION to Expedite Proceedings with Brief In Support by Mohammed Abdullah Tawfeeq. (Attachments: # 1 Brief in Support of Motion to Expedite, # 2 Exhibit A: Declaration of Deborah Rayner, # 3 Text of Proposed Order in Response to Motion to Expedite, # 4 Text of Proposed Order Setting Expedited Briefing Schedule)(Moser, Theresia) (Entered: 02/01/2017)
6 AFFIDAVIT of Service for Summons and Complaint , as to U.S. Customs and Border Protection. (Moser, Theresia) (Entered: 02/02/2017)
7 AFFIDAVIT of Service for Summons and Complaint , as to U.S. Department of State. (Moser, Theresia) (Entered: 02/02/2017)
8 AFFIDAVIT of Service for Summons and Complaint , as to Kevin McAleenan. (Moser, Theresia) (Entered: 02/02/2017)
9 AFFIDAVIT of Service for Summons and Complaint , as to Thomas Shannon. (Moser, Theresia) (Entered: 02/02/2017)
10 AFFIDAVIT of Service for Summons and Complaint , as to U.S. Department of Homeland Security. (Moser, Theresia) (Entered: 02/02/2017)
11 AFFIDAVIT of Service for Summons and Complaint , as to John F. Kelly. (Moser, Theresia) (Entered: 02/02/2017)
12 AFFIDAVIT of Service for Summons and Complaint , as to Andy Pryor. (Moser, Theresia) (Entered: 02/02/2017)
13 AFFIDAVIT of Service for Summons and Complaint , as to Carey Davis. (Moser, Theresia) (Entered: 02/02/2017)
14 AFFIDAVIT of Service for Summons and Complaint , as to Shana Wells. (Moser, Theresia) (Entered: 02/02/2017)
15 ORDER DIRECTING defendants to file their response(s), if any, to Plaintiff's Motion to Expedite Proceedings by 2/8/17. Plaintiff is DIRECTED to serve this order on defendants. Signed by Judge Timothy C. Batten, Sr on 2/2/17. (jlm) (Additional attachment(s) added on 2/2/2017: # 1 Order) (jlm). (Entered: 02/02/2017)
Clerks Certificate of Mailing as to defendants Carey Davis, John F. Kelly, Kevin A. McAleenan, Andy Pryor, Thomas A. Shannon, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State and Shana Wells re 15 Order. (Using addresses provided on summonses) (jlm) (Entered: 02/02/2017)

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02/02/2017 02/03/2017 02/03/2017 02/03/2017 02/07/2017
02/08/2017 02/09/2017 02/10/2017 02/10/2017 02/17/2017
02/21/2017 02/27/2017
03/03/2017 03/09/2017

16 CERTIFICATE OF SERVICE re 15 Order, Set Submission Deadline,, filed by Mohammed Abdullah Tawfeeq (Moser, Theresia) (Entered: 02/02/2017)
17 NOTICE of Appearance by Sheetul Sheth Wall on behalf of Carey Davis, John F. Kelly, Kevin A. McAleenan, Andy Pryor, Thomas A. Shannon, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, Shana Wells (Wall, Sheetul) (Entered: 02/03/2017)
18 ORDER directing Clerk's Office to make case filings electronically available for review through PACER. Signed by Judge Timothy C. Batten, Sr on 2/3/17. (rsh) (Entered: 02/03/2017)
MINUTE ORDER granting 3 Application for Admission Pro Hac Vice of Carl W. Hampe; granting 4 Application for Admission Pro Hac Vice of Daniel P. Pierce. Entered by CRD at the direction of Judge Timothy C. Batten, Sr. on 2/3/17. (se) (Entered: 02/03/2017)
19 WITHDRAWN MOTION to Dismiss Complaint for Declaratory, Mandamus, and Injunctive Relief with Brief In Support by Carey Davis, John F. Kelly, Kevin A. McAleenan, Andy Pryor, Thomas A. Shannon, U.S. Customs and Border Protection, U.S. Department of Homeland Security. (Attachments: # 1 Brief, # 2 Exhibit A − 2−1−17 White House Counsel Memorandum, # 3 Exhibit B − Louhghalam v. Trump, Mem. & Order at 6−7, Civ. No. 17−10154−NMG (D. Mass. Feb. 3, 2017, # 4 Exhibit C − 2−3−17 Department of Homeland Security Memorandum)(Wall, Sheetul) Modified on 4/4/2017 (jlm). (Entered: 02/07/2017)
20 RESPONSE in Opposition re 5 Emergency MOTION to Expedite Proceedings filed by Carey Davis, John F. Kelly, Kevin A. McAleenan, Andy Pryor, Thomas A. Shannon, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, Shana Wells. (Wall, Sheetul) (Entered: 02/08/2017)
21 REPLY to Response to Motion re 5 Emergency MOTION to Expedite Proceedings filed by Mohammed Abdullah Tawfeeq. (Attachments: # 1 Exhibit A− CBP Q & A, # 2 Exhibit B− Gov't Washington Litigation Reply Brief)(Pierce, Daniel) (Entered: 02/09/2017)
Submission of 5 Emergency MOTION to Expedite Proceedings, submitted to District Judge Timothy C. Batten. (jlm) (Entered: 02/10/2017)
22 ORDER denying 5 Motion to Expedite. Signed by Judge Timothy C. Batten, Sr. on 2/10/17. (se) (Entered: 02/10/2017)
23 First MOTION for Extension of Time Respond to Defendants' Motion to Dismiss re: 19 MOTION to Dismiss Complaint for Declaratory, Mandamus, and Injunctive Relief with Brief In Support by Mohammed Abdullah Tawfeeq. (Attachments: # 1 Brief in Support of Joint Motion to Delay Response to Defendants' Motion to Dismiss, # 2 Exhibit A − Washington v. Trump, # 3 Text of Proposed Order Granting Joint Motion to Delay Response)(Pierce, Daniel) (Entered: 02/17/2017)
24 ORDER granting 23 Motion for Extension of Time through 2/28/17 for Plaintiff to respond to Dfts' Motion to Dismiss. Signed by Judge Timothy C. Batten, Sr on 2/21/17. (rsh) (Entered: 02/21/2017)
25 RESPONSE in Opposition re 19 MOTION to Dismiss Complaint for Declaratory, Mandamus, and Injunctive Relief filed by Mohammed Abdullah Tawfeeq. (Attachments: # 1 Exhibit A − Washington v. Trump (9th Cir. 2017), # 2 Exhibit B − Statement by Sec. John Kelly, # 3 Exhibit C − Govt 9th Cir. Reply Brief, # 4 Exhibit D − Fox News Report, # 5 Exhibit E − Gov Opp to TRO in W.D. Wash, # 6 Exhibit F − W.D. Wash. TRO, # 7 Exhibit G − ED Va. Memo re Grant of PI, # 8 Exhibit H − ED Va. PI)(Pierce, Daniel) (Entered: 02/27/2017)
26 MOTION for Leave to File Amicus Curaie Brief by Victor Williams. (Attachments: # 1 Amicus Curaie Brief, # 2 Envelope)(adg) Modified on 4/3/2017 to correct filer information (adg). (Entered: 03/08/2017)
27 Joint MOTION for Extension of Time File Reply and Pretrial Discovery re: 20 Response in Opposition to Motion, 19 MOTION to Dismiss Complaint for Declaratory, Mandamus, and Injunctive Relief with Brief In Support by Carey Davis,

Case: 1:17-cv-353 As of: 08/13/2017 12:10 PM EDT 5 of 7

03/09/2017 03/13/2017 03/21/2017
03/22/2017 03/22/2017 03/23/2017
03/29/2017 03/31/2017 04/03/2017 04/03/2017 04/04/2017 04/04/2017

John F. Kelly, Kevin A. McAleenan, Andy Pryor, Thomas A. Shannon, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, Shana Wells. (Attachments: # 1 Brief, # 2 Exhibit A − Revised Executive Order, # 3 Text of Proposed Order)(Wall, Sheetul) (Entered: 03/09/2017)
29 LETTER from the U.S. Department of State returning 15 Order. (Attachments: # 1 Envelope) (dfb) (Entered: 03/13/2017)
28 ORDER GRANTING 27 Motion for Extension of Time to and including 3/23/17 for defendant's to file a reply re 19 MOTION to Dismiss Complaint for Declaratory, Mandamus, and Injunctive Relief and for parties to exchange initial disclosures and file joint preliminary report and discovery plan. Signed by Judge Timothy C. Batten, Sr on 3/10/17. (jlm) (Entered: 03/13/2017)
30 Joint MOTION for Extension of Time to Amend Complaint and Further Deadlines Regarding Motion to Dismiss re: 1 Complaint, 19 MOTION to Dismiss Complaint for Declaratory, Mandamus, and Injunctive Relief with Brief In Support by Mohammed Abdullah Tawfeeq. (Attachments: # 1 Brief In Support of Joint Motion Regarding Amendment to Complaint and Further Deadlines, # 2 Text of Proposed Order In Support of Joint Motion Regarding Amendment to Complaint and Further Deadlines)(Pierce, Daniel) (Entered: 03/21/2017)
31 ORDER GRANTING Plaintiff through 3/23/17 to file an Amended Complaint; ALLOWING defendant to withdraw their 19 Motion to Dismiss; GRANTING Defendant 30 days from the filing of Plaintiff's Amended Complaint to file a response. (See order for deadlines re discovery and FRCP 26 obligations). Signed by Judge Timothy C. Batten, Sr on 3/22/17. (jlm) (Entered: 03/22/2017)
32 RESPONSE in Opposition re 26 MOTION for Leave to File Amicus Curaie Brief filed by Mohammed Abdullah Tawfeeq. (Pierce, Daniel) (Entered: 03/22/2017)
33 First AMENDED COMPLAINT against Carey Davis, John F. Kelly, Kevin A. McAleenan, Andy Pryor, Thomas A. Shannon, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, Shana Wells, filed by Mohammed Abdullah Tawfeeq. (Attachments: # 1 Exhibit A − Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States, # 2 Exhibit B − Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States 3−6−2017, # 3 Exhibit C − State of Hawaii v Trump TRO, # 4 Exhibit D − International Assistance Project v Trump TRO, # 5 Exhibit E − Statement by John Kelly on Entrance of Lawful Permanent Residents, # 6 Exhibit F − White House Counsel Memo, # 7 Exhibit G− Statement on Countries Suspended from Travel to US, # 8 Exhibit H − Declaration of Deborah Rayner, # 9 Exhibit I − Trump Rally (3−15−2017))(Pierce, Daniel) Please visit our website at http://www.gand.uscourts.gov/commonly−used−forms to obtain Pretrial Instructions which includes the Consent To Proceed Before U.S. Magistrate form. (Entered: 03/23/2017)
35 REPLY to Response to Motion re 26 MOTION for Leave to File Amicus Curaie Brief filed by Victor Williams. (adg) Modified on 4/3/2017 to correct filer (adg). (Entered: 04/03/2017)
34 INSTRUCTIONS to Parties and Counsel. Signed by Judge Timothy C. Batten, Sr on 3/31/17. (jlm) (Entered: 03/31/2017)
Notification of Docket Correction re 26 MOTION for Leave to File Amicus Curaie Brief by Victor Williams, 35 Reply to Response to Motion by Victor Williams. Modified on 4/3/2017 to correct filer (adg) (Entered: 04/03/2017)
Submission of 26 MOTION for Leave to File Amicus Curaie Brief to District Judge Timothy C. Batten. (adg) (Entered: 04/03/2017)
Submission of 19 MOTION to Dismiss Complaint for Declaratory, Mandamus, and Injunctive Relief, 31 Order, submitted to District Judge Timothy C. Batten. (jlm) (Entered: 04/04/2017)
MINUTE ORDER APPROVING WITHDRAWAL of Plaintiff's 19 MOTION to Dismiss Complaint for Declaratory, Mandamus, and Injunctive Relief as agreed upon by parties (See 3/22/17 Order). (Entered at the direction of Chambers) Ordered by

Case: 1:17-cv-353 As of: 08/13/2017 12:10 PM EDT 6 of 7

04/24/2017
05/08/2017 05/19/2017
05/22/2017 06/06/2017 06/06/2017 06/28/2017
06/29/2017 07/07/2017 07/18/2017 07/31/2017
07/31/2017 08/11/2017 08/11/2017 08/11/2017 08/11/2017

Judge Timothy C. Batten, Sr on 4/4/17. (jlm) (Entered: 04/04/2017)
36 MOTION to Dismiss Complaint with Brief In Support by Carey Davis, John F. Kelly, Kevin A. McAleenan, Andy Pryor, Thomas A. Shannon, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, Shana Wells. (Attachments: # 1 Brief Memorandum in Support of Motion to Dismiss, # 2 Exhibit A − Joint Ltr. to President, # 3 Exhibit B − DHS Press Release)(Wall, Sheetul) (Entered: 04/24/2017)
37 RESPONSE re 36 MOTION to Dismiss Complaint filed by Mohammed Abdullah Tawfeeq. (Pierce, Daniel) (Entered: 05/08/2017)
38 Joint MOTION for Extension of Time to file Reply in Support of Motion to Dismiss re: 36 MOTION to Dismiss Complaint, 37 Response to Motion with Brief In Support by Carey Davis, John F. Kelly, Kevin A. McAleenan, Andy Pryor, Thomas A. Shannon, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, Shana Wells. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(Wall, Sheetul) (Entered: 05/19/2017)
39 ORDER GRANTING 38 Motion for Extension of Time to and including 6/6/17 for defendant's to file a reply to plaintiff's 37 Response to 36 Motion to Dismiss. Signed by Judge Timothy C. Batten, Sr on 5/22/17. (jlm) (Entered: 05/22/2017)
40 REPLY to Response to Motion re 36 MOTION to Dismiss Complaint filed by Carey Davis, John F. Kelly, Kevin A. McAleenan, Andy Pryor, Thomas A. Shannon, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, Shana Wells. (Wall, Sheetul) (Entered: 06/06/2017)
Submission of 36 MOTION to Dismiss Complaint, submitted to District Judge Timothy C. Batten. (jlm) (Entered: 06/06/2017)
41 Joint MOTION for Extension of Time Joint Motion to Reset Deadline to File Joint Preliminary Report and Scheduling Order and Serve Initial Disclosures with Brief In Support by Carey Davis, John F. Kelly, Kevin A. McAleenan, Andy Pryor, Thomas A. Shannon, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of State, Shana Wells. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(Wall, Sheetul) (Entered: 06/28/2017)
42 ORDER granting 41 Joint Motion for Extension of Time to and including 7/7/17 for parties to exchange initial disclosures and file a joint preliminary report and discovery plan. Signed by Judge Timothy C. Batten, Sr on 6/29/17. (jlm) (Entered: 06/29/2017)
43 JOINT PRELIMINARY REPORT AND DISCOVERY PLAN filed by Mohammed Abdullah Tawfeeq. (Pierce, Daniel) (Entered: 07/07/2017)
44 Notice for Leave of Absence for the following date(s): 7/24/17, 7/25/17, 7/26/17, 7/27/17, 7/28/17, by Sheetul Sheth Wall. (Wall, Sheetul) (Entered: 07/18/2017)
45 SCHEDULING ORDER: re: 43 Joint Preliminary Report and Discovery Plan. The Court's 3/22/17 Order setting out discovery deadlines was in response to the parties' joint request for same. The parties now disagree on that issue. Discovery in this case is STAYED pending the Courts ruling on the motion to dismiss. Signed by Judge Timothy C. Batten, Sr on 7/31/17. (rsh) (Entered: 07/31/2017)
Clerks Certificate of Mailing as to Victor Williams re 45 Scheduling Order. Notice of street name change for the Atlanta courthouse included. (rsh) (Entered: 07/31/2017)
46 ORDER granting 36 Dfts' Motion to Dismiss; denying as moot 26 non−party Victor Williams's Motion for Leave to File an amicus curiae brief. Clerk directed to close case. Signed by Judge Timothy C. Batten, Sr on 8/11/17. (rsh) (Entered: 08/11/2017)
47 CLERK'S JUDGMENT dismissing action, pursuant to Court's order on motion to dismiss. (rsh)−−Please refer to http://www.ca11.uscourts.gov to obtain an appeals jurisdiction checklist−− (Entered: 08/11/2017)
Civil Case Terminated. (rsh) (Entered: 08/11/2017)
Clerks Certificate of Mailing as to Victor Williams re 47 Clerk's Judgment, 46 Order. Notice of street name change for the Atlanta courthouse included. (rsh) (Entered:

Case: 1:17-cv-353 As of: 08/13/2017 12:10 PM EDT 7 of 7 08/11/2017)