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East Bay Law

Andrew W. Shalaby sbn 206841

1417 Solano Avenue

Albany, CA 94706

Tel. 510-551-8500

Fax: 510-725-4950

email: andrew@eastbaylaw.com 

Attorneys for Plaintiffs

The People of the State of California, and

The People of the United States of America

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO

People of the United States of

America and the State of California,

 Plaintiffs,

vs.

Donald Trump; United States of

America,

Defendants.

Case Number: 3:17-cv-451

(Fee Exempt: 28 U.S.C. § 1914(b), by Judicial Conference effective 12/2016)

COMPLAINT FOR INJUNCTION

AND REPEAL OF PRESIDENTIAL

EXECUTIVE ORDER DATED

JANUARY 27, 2017 SUSPENDING

VISAS AND IMMIGRATION

BENEFITS WITHOUT

CONGRESSIONAL APPROVAL

U.S. Const. art. I, § 1;

U.S. Const. art. II, § 1, cl. 1

I. FEE EXEMPTION

This action is brought on behalf of the People of the State of California and

United States, and exempted from filing fees under 28 U.S.C. § 1914(b):

Effective on: December 1, 2016

Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration

Benefits Without Congressional Approval 1 No. 3:17-cv-451

Case 3:17-cv-00451 Document 1 Filed 01/28/17 Page 1 of 7
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The United States should not be charged fees under this schedule, with

the exception of those specifically prescribed in Items 2, 4 and 5, when

the information requested is available through remote electronic access. 

Reference: 

http://www.uscourts.gov/services-forms/fees/district-court-miscellane

ous-fee-schedule 

I. JURISDICTION

This action arises under the Constitution, laws, or treaties of the United States,

conferring Federal Question jurisdiction under 28 U.S.C. § 1331.

VENUE

Defendant is the United States. Venue is proper in any judicial district pursuant

to 28 U.S.C. § 1391(e).

PARTIES

 1. Plaintiffs are the People of the United States of America and the State of

California, by way of the Private Attorney General statutes of the State of California

and United States, for this civil action. The action is for the protection of all persons

in the United States in their civil rights and for their vindication pursuant to brought

pursuant to 42 U.S.C. § 1988. 

 2. Defendant, Donald Trump, aka Donald John Trump (“Mr. Trump”), is

the forty fifth president of the united states, inaugurated eight days ago, on January

20, 2017. He is named as an indispensable party with regard to this action to enjoin

enforcement of his executive order issued one day before the filing of this action, on

January 27, 2017, purporting to suspend visas and immigration benefits of a

seemingly undefined class of persons, apparently based on ethnicity and/or religious

beliefs.

3. Defendant, the United States of America, is the United States

Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration

Benefits Without Congressional Approval 2 No. 3:17-cv-451

Case 3:17-cv-00451 Document 1 Filed 01/28/17 Page 2 of 7
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Government, generally, and is named as a defendant for the purpose of enjoining

enforcement of the Executive Order of Mr. Trump.

FIRST CAUSE OF ACTION FOR INUNCTION OF

EXECUTIVE ORDER DATED JANUARY 27, 2017

4. On January 27, 2017, one day before the filing of this Complaint, Mr.

Trump signed an executive order purporting to suspend visas and immigration

benefits of a seemingly undefined class of persons, apparently based on ethnicity

and/or religious beliefs. The order is captioned:

“EXECUTIVE ORDER

PROTECTING THE NATION FROM FOREIGN TERRORIST

ENTRY INTO THE UNITED STATES” A copy of the Executive Order is attached as Exhibit A hereto.

5. The Executive Order purports to suspend the issuance of visas and

benefits, with it’s stated goal being the prevention of entry of citizens and/or residents

of largely unspecified countries, and appears to erroneously reference a statute which

does not appear to exist: “section 217(a)(12) of the INA.” While there is a “section

217,” there does not appear to be a section “217(a)(12)” identifying the countries from

which “immigrant and nonimmigrant” persons are to be denied entry to the United

States:

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.Ss.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...”

The People are not able to readily identify which countries the President intended

because there does not appear to be a “section 217(a)(12),” and therefore does not

appear to be any publication defining the “countries referred” in “section 217(a)(12).

6. The Executive Order violates the separation of powers doctrine without

statutory exception, because U.S. Const. art. I, § 1 vests Congress with all legislative

powers: 

Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration

Benefits Without Congressional Approval 3 No. 3:17-cv-451

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U.S. Const. art. I, § 1 

All legislative Powers herein granted shall be vested in a Congress of the

United States, which shall consist of a Senate and House of

Representatives. 

The President is vested with the executive power pursuant to U.S. Const. art. II, § 1,

cl. 1: 

Section 1. The executive Power shall be vested in a President of the United

States of America. 

The Judiciary, this Court, is vested with the judicial powers to interpret the laws

pursuant to is vested with U.S. Const. art. III, § 1: 

Section 1. The judicial Power of the United States, shall be vested in one

supreme Court, and in such inferior Courts as the Congress may from

time to time ordain and establish. The Judges, both of the supreme and

inferior Courts, shall hold their Offices during good Behaviour, and

shall, at stated Times, receive for their Services, a Compensation, which

shall not be diminished during their Continuance in Office. 

No Statutory Exception Exists

There has been no change of any kind so as to warrant departure from the

Separation of Powers doctrine and permit Mr. Trump to legislate the Executive Order

at issue. There has been on increase of threat of terrorist attacks at all since the event

referenced in the second paragraph of Mr. Trump’s Executive Order, the “terrorist

attacks of September 11, 2001.” To the contrary, the threat of terrorist attacks has

declined steadily since September 2001, therefore Congress and the previous two

presidential administrations never considered enacting such a prohibition of entry of

persons to the United States based on their countries of origin and/or religious beliefs. 

There is no exigent circumstance exception to warrant an executive order, while the

legislature and previous two presidents served through the several years following

September 11, 2001 and had years to enact legislation barring entry into the United

States by the classes of persons identified on Mr. Trump’s Executive Order, but

clearly determined such legislation would be detrimental to the interests of the People

of the United States of America.

Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration

Benefits Without Congressional Approval 4 No. 3:17-cv-451

Case 3:17-cv-00451 Document 1 Filed 01/28/17 Page 4 of 7
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THE EXECUTIVE ORDER WOULD DAMAGE U.S. REPUTATION

Mr. Trump’s intent is commendable and appreciated insofar as he identifies

persons who inflict “gender-based violence against women, including honor killings,”

as well as persons “who have been radicalized after entry into the United States and

engaged in terrorism-related acts, or who have provided material support to terrorismrelated organizations in countries that pose a threat to the United States.” However,

Mr. Trump’s Executive Order is overly broad and misses it’s mark. If not stricken,

the Executive Order would facially damage the reputation of the United States

worldwide, because it discriminates against a very large class of persons based on

either their foreign citizenship or residency, or religious beliefs, based on an erroneous

beliefs of one individual (Mr. Trump). While the several countries Mr. Trump

attempted to identify on his Executive Order are not actually specified, and apparently

cannot even be ascertained from the document or it’s references, nevertheless a ban

on entry to the United States based solely on foreign citizenship or residency, or

religion, facially evidences inhumane discrimination. 

CONGRESS MAY ENACT THE LEGISLATION IF NECESSARY

The Legislative branch is charged with enactment of the laws. Mr. Trump can

therefore tender his Executive Order as a bill to Congress, so that the legislature can

decide whether such a law should be enacted for the benefit of the People of the

United States of America. However, no statute or authority exists to support the

issuance of this particular Executive Order. 

SECOND CAUSE OF ACTION TO STRIKE EXECUTIVE

ORDER AS UNCONSTITUTIONAL INFRINGEMENT ON

ESTABLISHMENT CLAUSE

7. The First Amendment to the United States Constitution is the cornerstone

Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration

Benefits Without Congressional Approval 5 No. 3:17-cv-451

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of democracy. The first sentence of the First Amendment provides: 

“Congress shall make no law respecting an establishment of religion...”

Mr. Trump’s Executive Order presents a proposed “law” facially prohibiting entry of 

persons to the United States based on their adherence to religious beliefs shared in

certain countries. The Executive Order therefore is facially unconstitutional and must

be stricken as an infringement on the Establishment Clause of the First Amendment.

INJUNCTIVE RELIEF PENDING ADJUDICATION

Plaintiffs respectfully move for an immediate injunction of enforcement of Mr.

Trump’s Executive Order until it’s validity and constitutionality is adjudicated.

Dated: January 28, 2017 s/Andrew W. Shalaby 

Andrew W. Shalaby, Attorney for

Plaintiffs

Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration

Benefits Without Congressional Approval 6 No. 3:17-cv-451

Case 3:17-cv-00451 Document 1 Filed 01/28/17 Page 6 of 7
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PROOF OF SERVICE

I, Andrew W. Shalaby, declare as follows:

I am a citizen of the United States, over the age of eighteen years and not a

party to the within entitled action. I am employed at 7525 Leviston Ave, El

Cerrito, CA. On January 28, 2017 I served the attached:

COMPLAINT FOR INJUNCTION AND REPEAL OF

PRESIDENTIAL EXECUTIVE ORDER DATED

JANUARY 27, 2017 SUSPENDING VISAS AND

IMMIGRATION BENEFITS WITHOUT

CONGRESSIONAL APPROVAL

on the interested parties in said action, by placing a true copy thereof in sealed envelope(s) addressed as follows:

Office of the Attorney General

455 Golden Gate, Suite 11000

San Francisco, CA 94102-7004

and served the named document in the manner indicated below:

BY MAIL: I am familiar with the practices of the U.S. Postal Service, and I

caused true and correct copies of the above documents, by following ordinary

business practices, to be placed and sealed in envelopes(s) addressed to the

addressees, at an office of the U.S. Postal Service in El Cerrito, California, for

collection and mailing by first class mail with the United States Postal Service.

I declare under penalty of perjury under the laws of the State of California

that the foregoing is true and correct. Executed January 28, 2017, at El Cerrito,

California.

 s/Andrew W. Shalaby

 Andrew W. Shalaby 

Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration

Benefits Without Congressional Approval 7 No. 3:17-cv-451

Case 3:17-cv-00451 Document 1 Filed 01/28/17 Page 7 of 7