International Refugee Assistance Project v. Trump

Filing 34

Joint FULL ELECTRONIC APPENDIX and full paper appendix by Appellants Daniel R. Coats, Department of State, John F. Kelly, Office of the Director of National Intelligence, Rex Tillerson, Donald J. Trump and United States Department of Homeland Security. Method of Filing Paper Copies: courier. Date paper copies mailed dispatched or delivered to court: 03/27/2017. [1000049094] [17-1351] H. Thomas Byron

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Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 93 of 117 J.R.396 J.A. 657 Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 38 of 41 PageID #: 1506 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 94 of 117 J.R.397 J.A. 658 Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 39 of 41 PageID #: 1507 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 95 of 117 J.R.398 J.A. 659 Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 40 of 41 PageID #: 1508 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 96 of 117 J.R.399 J.A. 660 Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 41 of 41 PageID #: 1509 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 97 of 117 J.R.400 J.A. 661 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 98 of 117 Exhibit MM J.R.401 J.A. 662 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 99 of 117 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 17-35105 STATE OF WASHINGTON, et al. Plaintiffs-Appellees, vs. DONALD J. TRUMP, President of the United States, et al., Defendants-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) JOINT DECLARATION OF MADELEINE K. ALBRIGHT, AVRIL D. HAINES MICHAEL V. HAYDEN JOHN F. KERRY JOHN E. McLAUGHLIN LISA O. MONACO MICHAEL J. MORELL JANET A. NAPOLITANO LEON E. PANETTA SUSAN E. RICE We, Madeleine K. Albright, Avril D. Haines, Michael V. Hayden, John F. Kerry, John E. McLaughlin, Lisa O. Monaco, Michael J. Morell, Janet A. Napolitano, Leon E. Panetta, and Susan E. Rice declare as follows: 1. We are former national security, foreign policy, and intelligence officials in the United States Government: a. Madeleine K. Albright served as Secretary of State from 1997 to 2001. A refugee and naturalized American citizen, she served as U.S. Permanent Representative to the United Nations from 1993 to 1997 and has been a member of the Central Intelligence Agency External Advisory Board since 2009 and the Defense Policy Board since 2011, in which capacities she has received assessments of threats facing the United States. b. Avril D. Haines served as Deputy Director of the Central Intelligence Agency from 2013 to 2015, and as Deputy National Security Advisor from 2015 to January 20, 2017. c. Michael V. Hayden served as Director of the National Security Agency from 1999 to 2005, and Director of the Central Intelligence Agency from 2006 to 2009. d. John F. Kerry served as Secretary of State from 2013 to January 20, 2017. J.R.402 J.A. 663 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 100 of 117 e. John E. McLaughlin served as Deputy Director of the Central Intelligence Agency from 2000-2004 and Acting Director of CIA in 2004. His duties included briefing President-elect Bill Clinton and President George W. Bush. f. Lisa O. Monaco served as Assistant to the President for Homeland Security and Counterterrorism and Deputy National Security Advisor from 2013 to January 20, 2017. g. Michael J. Morell served as Acting Director of the Central Intelligence Agency in 2011 and from 2012 to 2013, Deputy Director from 2010 to 2013, and as a career official of the CIA from 1980. His duties included briefing President George W. Bush on September 11, 2001, and briefing President Barack Obama regarding the May 2011 raid on Osama bin Laden. h. Janet A. Napolitano served as Secretary of Homeland Security from 2009 to 2013. i. Leon E. Panetta served as Director of the Central Intelligence Agency from 2009-11 and as Secretary of Defense from 2011-13. j. Susan E. Rice served as U.S. Permanent Representative to the United Nations from 2009-13 and as National Security Advisor from 2013 to January 20, 2017. 2. We have collectively devoted decades to combatting the various terrorist threats that the United States faces in a dynamic and dangerous world. We have all held the highest security clearances. A number of us have worked at senior levels in administrations of both political parties. Four of us (Haines, Kerry, Monaco and Rice) were current on active intelligence regarding all credible terrorist threat streams directed against the U.S. as recently as one week before the issuance of the Jan. 27, 2017 Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (“Order”). 3. We all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. We all are nevertheless unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017. We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds. It does not perform its declared task of “protecting the nation from foreign terrorist entry into the United States.” To the contrary, the Order disrupts thousands of lives, including those of refugees and visa holders all previously vetted by standing procedures that the Administration has not shown to be inadequate. It could do long-term damage to our national security and foreign policy interests, endangering U.S. troops in the field and disrupting counterterrorism and national security partnerships. It will aid ISIL’s propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam. It will hinder relationships with the very communities that law enforcement professionals need to address the threat. It will have a damaging humanitarian and economic impact on the lives and jobs of American citizens and residents. And apart from all of these concerns, the Order offends our nation’s laws and values. 2 J.R.403 J.A. 664 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 101 of 117 4. There is no national security purpose for a total bar on entry for aliens from the seven named countries. Since September 11, 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order. Very few attacks on U.S. soil since September 11, 2001 have been traced to foreign nationals at all. The overwhelming majority of attacks have been committed by U.S. citizens. The Administration has identified no information or basis for believing there is now a heightened or particularized future threat from the seven named countries. Nor is there any rational basis for exempting from the ban particular religious minorities (e.g., Christians), suggesting that the real target of the ban remains one religious group (Muslims). In short, the Administration offers no reason why it abruptly shifted to group-based bans when we have a tested individualized vetting system developed and implemented by national security professionals across the government to guard the homeland, which is continually re-evaluated to ensure that it is effective. 5. In our professional opinion, the Order will harm the interests of the United States in many respects: a. The Order will endanger U.S. troops in the field. Every day, American soldiers work and fight alongside allies in some of the named countries who put their lives on the line to protect Americans. For example, allies who would be barred by the Order work alongside our men and women in Iraq fighting against ISIL. To the extent that the Order bans travel by individuals cooperating against ISIL, we risk placing our military efforts at risk by sending an insulting message to those citizens and all Muslims. b. The Order will disrupt key counterterrorism, foreign policy, and national security partnerships that are critical to our obtaining the necessary information sharing and collaboration in intelligence, law enforcement, military, and diplomatic channels to address the threat posed by terrorist groups such as ISIL. The international criticism of the Order has been intense, and it has alienated U.S. allies. It will strain our relationships with partner countries in Europe and the Middle East, on whom we rely for vital counterterrorism cooperation, undermining years of effort to bring them closer. By alienating these partners, we could lose access to the intelligence and resources necessary to fight the root causes of terror or disrupt attacks launched from abroad, before an attack occurs within our borders. c. The Order will endanger intelligence sources in the field. For current information, our intelligence officers may rely on human sources in some of the countries listed. The Order breaches faith with those very sources, who have risked much or all to keep Americans safe – and whom our officers had promised always to protect with the full might of our government and our people. d. Left in place, the Executive Order will likely feed the recruitment narrative of ISIL and other extremists that portray the United States as at war with Islam. As government officials, we took every step we could to counter violent extremism. Because of the Order’s disparate impact against Muslim travelers and immigrants, it feeds ISIL’s narrative and sends the wrong message to the Muslim community here at home and all over the world: that 3 J.R.404 J.A. 665 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 102 of 117 the U.S. government is at war with them based on their religion. The Order may even endanger Christian communities, by handing ISIL a recruiting tool and propaganda victory that spreads their message that the United States is engaged in a religious war. e. The Order will disrupt ongoing law enforcement efforts. By alienating Muslim-American communities in the United States, it will harm our efforts to enlist their aid in identifying radicalized individuals who might launch attacks of the kind recently seen in San Bernardino and Orlando. f. The Order will have a devastating humanitarian impact. When the Order issued, those disrupted included women and children who had been victimized by actual terrorists. Tens of thousands of travelers today face deep uncertainty about whether they may travel to or from the United States: for medical treatment, study or scholarly exchange, funerals or other pressing family reasons. While the Order allows for the Secretaries of State and Homeland Security to agree to admit travelers from these countries on a case-by-case basis, in our experience it would be unrealistic for these overburdened agencies to apply such procedures to every one of the thousands of affected individuals with urgent and compelling needs to travel. g. The Order will cause economic damage to American citizens and residents. The Order will affect many foreign travelers, particularly students, who annually inject hundreds of billions into the U.S. economy, supporting well over a million U.S. jobs. Since the Order issued, affected companies have noted its adverse impacts on many strategic economic sectors, including defense, technology, medicine, culture and others. 6. As a national security measure, the Order is unnecessary. National security-based immigration restrictions have consistently been tailored to respond to: (1) specific, credible threats based on individualized information, (2) the best available intelligence and (3) thorough interagency legal and policy review. This Order rests not on such tailored grounds, but rather, on (1) general bans (2) not supported by any new intelligence that the Administration has claimed, or of which we are aware, and (3) not vetted through careful interagency legal and policy review. Since the 9/11 attacks, the United States has developed a rigorous system of security vetting, leveraging the full capabilities of the law enforcement and intelligence communities. This vetting is applied to travelers not once, but multiple times. Refugees receive the most thorough vetting of any traveler to the United States, taking on the average more than a year. Successive administrations have continually worked to improve this vetting through robust informationsharing and data integration to identify potential terrorists without resorting to a blanket ban on all aliens and refugees. Because various threat streams are constantly mutating, as government officials, we sought continually to improve that vetting, as was done in response to particular threats identified by U.S. intelligence in 2011 and 2015. Placing additional restrictions on individuals from certain countries in the visa waiver program –as has been done on occasion in the past – merely allows for more individualized vettings before individuals with particular passports are permitted to travel to the United States. 7. In our professional opinion, the Order was ill-conceived, poorly implemented and ill-explained. The “considered judgment” of the President in the prior cases where courts have 4 J.R.405 J.A. 666 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 103 of 117 deferred was based upon administrative records showing that the President’s decision rested on cleared views from expert agencies with broad experience on the matters presented to him. Here, there is little evidence that the Order underwent a thorough interagency legal and policy processes designed to address current terrorist threats, which would ordinarily include a review by the career professionals charged with implementing and carrying out the Order, an interagency legal review, and a careful policy analysis by Deputies and Principals (at the cabinet level) before policy recommendations are submitted to the President. We know of no interagency process underway before January 20, 2017 to change current vetting procedures, and the repeated need for the Administration to clarify confusion after the Order issued suggest that that Order received little, if any advance scrutiny by the Departments of State, Justice, Homeland Security or the Intelligence Community. Nor have we seen any evidence that the Order resulted from experienced intelligence and security professionals recommending changes in response to identified threats. 8. The Order is of unprecedented scope. We know of no case where a President has invoked his statutory authority to suspend admission for such a broad class of people. Even after 9/11, the U.S. Government did not invoke the provisions of law cited by the Administration to broadly bar entrants based on nationality, national origin, or religious affiliation. In past cases, suspensions were limited to particular individuals or subclasses of nationals who posed a specific, articulable threat based on their known actions and affiliations. In adopting this Order, the Administration alleges no specific derogatory factual information about any particular recipient of a visa or green card or any vetting step omitted by current procedures. 9. Maintaining the district court’s temporary restraining order while the underlying legal issues are being adjudicated would not jeopardize national security. It would simply preserve the status quo ante, still requiring that individuals be subjected to all the rigorous legal vetting processes that are currently in place. Reinstating the Executive Order would wreak havoc on innocent lives and deeply held American values. Ours is a nation of immigrants, committed to the faith that we are all equal under the law and abhor discrimination, whether based on race, religion, sex, or national origin. As government officials, we sought diligently to protect our country, even while maintaining an immigration system free from intentional discrimination, that applies no religious tests, and that measures individuals by their merits, not stereotypes of their countries or groups. Blanket bans of certain countries or classes of people are beneath the dignity of the nation and Constitution that we each took oaths to protect. Rebranding a proposal first advertised as a “Muslim Ban” as “Protecting the Nation from Foreign Terrorist Entry into the United States” does not disguise the Order’s discriminatory intent, or make it necessary, effective, or faithful to America’s Constitution, laws, or values. 5 J.R.406 J.A. 667 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 104 of 117 10. For all of the foregoing reasons, in our professional opinion, the January 27 Executive Order does not further – but instead harms – sound U.S. national security and foreign policy. Respectfully submitted, s/MADELEINE K. ALBRIGHT* s/AVRIL D. HAINES s/MICHAEL V. HAYDEN s/JOHN F. KERRY s/JOHN E. McLAUGHLIN s/LISA O. MONACO s/MICHAEL J. MORELL s/JANET A. NAPOLITANO s/LEON E. PANETTA s/SUSAN E. RICE *All original signatures are on file with Harold Hongju Koh, Rule of Law Clinic, Yale Law School, New Haven, CT. 06520-8215 203-432-4932 We declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. [Individual signature pages follow] 6 J.R.407 J.A. 668 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 105 of 117 J.R.408 J.A. 669 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 106 of 117 J.R.409 J.A. 670 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 107 of 117 J.R.410 J.A. 671 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 108 of 117 J.R.411 J.A. 672 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 109 of 117 J.R.412 J.A. 673 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 110 of 117 J.R.413 J.A. 674 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 111 of 117 J.R.414 J.A. 675 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 112 of 117 EXECUTED this 5th day of February, 2017 /s/ JANET A. NAPOLITANO J.R.415 J.A. 676 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 113 of 117 J.R.416 J.A. 677 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 114 of 117 EXECUTED this 5th day of February, 2017 /s/ SUSAN E. RICE J.R.417 J.A. 678 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 115 of 117 Exhibit J.R.418 J.A. 679 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 116 of 117 J.R.419 J.A. 680 Case 8:17-cv-00361-TDC Document 95-12 Filed 03/11/17 Page 117 of 117 J.R.420 J.A. 681 1 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF MARYLAND 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al., ) ) ) Plaintiffs, ) ) vs. ) ) DONALD J. TRUMP, et al., ) ) Defendants. ) _______________________________) CASE NO. 8:17-cv-00361-TDC TRANSCRIPT OF PROCEEDINGS HEARING FOR TEMPORARY RESTRAINING ORDER BEFORE THE HONORABLE THEODORE D. CHUANG WEDNESDAY, MARCH 15, 2017; 9:40 A.M. GREENBELT, MARYLAND FOR THE PLAINTIFFS: Omar C. Jadwat, Esquire Lee Gelernt, Esquire AMERICAN CIVIL LIBERTIES UNION 125 Broad Street, 18th Floor New York, NY 10004 Justin B. Cox, Esquire NATIONAL IMMIGRATION LAW CENTER 1989 College Avenue, N.E. Atlanta, GA 30317 19 20 21 Proceedings recorded by mechanical stenography, transcript produced by computer. 22 _______________________________________________________ 23 24 25 CINDY S. DAVIS, RPR FEDERAL OFFICIAL COURT REPORTER 6500 CHERRYWOOD LANE, SUITE 200 GREENBELT, MD 20770 J.A. 682 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 FOR THE PLAINTIFFS (continued): Karen C. Tumlin, Esquire Esther Sung, Esquire NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Blvd., Suite 1600 Los Angeles, CA 90010 Daniel Mach, Esquire AMERICAN CIVIL LIBERTIES UNION 915 15th Street, N.W., Sixth Floor Washington, DC 20005 David R. Rocah, Esquire AMERICAN CIVIL LIBERTIES UNION OF MARYLAND 3600 Clipper Mill Road, #350 Baltimore, MD 21211 FOR THE DEFENDANTS: Jeffrey B. Wall, Acting Solicitor General Edwin Kneedler, Deputy Solicitor General UNITED STATES DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001 Arjun Garg, Trial Attorney Daniel Schwei, Trial Attorney UNITED STATES DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, N.W. Washington, DC 20530 18 19 20 21 22 23 24 25 J.A. 683 3 1 I N D E X 2 P A G E 3 Argument by Mr. Jadwat for Plaintiffs 4 Argument by Mr. Cox for Plaintiffs 20 5 Argument by Mr. Wall for Defendants 29 6 Argument by Mr. Garg for Defendants 62 7 Rebuttal Argument by Mr. Cox for Plaintiffs 66 8 Rebuttal Argument by Mr. Jadwat for Plaintiffs 71 5 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 J.A. 684 4 P R O C E E D I N G S 1 THE COURTROOM DEPUTY: 2 The matter now pending before 3 this Court is Civil Number TDC-17-0361, International Refugee 4 Assistance Project, et al., versus Donald J. Trump, et al. 5 We're here for the purpose of a temporary restraining order 6 hearing. 7 8 9 10 11 12 13 14 15 16 Counsel, please identify yourselves for the record. MR. JADWAT: Omar Jadwat, Your Honor, from the ACLU, for plaintiffs. MR. COX: Justin Cox, from the National Immigration Law Center, for plaintiffs. MS. TUMLIN: Good morning Your Honor. Karen Tumlin, National Immigration Law Center, for plaintiffs. MR. MACH: Good morning. Daniel Mach, from the ACLU, for plaintiffs. MR. GELERNT: Good morning, Your Honor. 17 from the ACLU, for plaintiffs. 18 MS. SUNG: Lee Gelernt 19 20 21 Good morning, Your Honor, Esther Sung, with the National Immigration Law Center, for the plaintiffs. MR. ROCAH: Good morning, Your Honor. ACLU of Maryland, for plaintiffs. 22 THE COURT: 23 MR. WALL: 24 25 David Rocah, Good morning to you all. Good morning, Your Honor. Jeffrey Wall for the United States. MR. KNEEDLER: Good morning, Your Honor. J.A. 685 Edwin 5 1 Kneedler, from the Department of Justice, for the United 2 States. 3 4 5 6 7 8 9 MR. GARG: Good morning, Your Honor. Arjun Garg, from the Department of Justice, for the defendants. MR. SCHWEI: Good morning. Daniel Schwei, from the Defendant of Justice, for the defendants. THE COURT: Good morning to everyone. I know there's other counsel in the audience and others as well. We're here on the motion for a temporary restraining 10 order and a preliminary injunction filed by the various 11 plaintiffs. 12 minutes for each side. 13 to reserve five minutes for rebuttal. 14 feel the need to go beyond that, we'll make sure each side gets 15 equal time. 16 17 18 19 I think the procedure I had suggested was 30 I understand the plaintiff would like And to the extent that I So we'll hear first from the plaintiffs. I understand it's Mr. Jadwat? ARGUMENT BY MR. JADWAT FOR PLAINTIFFS MR. JADWAT: Yes, Your Honor. Thank you. And we are 20 dividing the argument to the extent that Mr. Cox will handle 21 questions regarding standing harms and the 50,000 refugee 22 limit, the Section 5(d) PI, which is also pending. 23 THE COURT: 24 MR. JADWAT: 25 Okay. So on our constitutional claims, Your Honor, this Court can begin and end with Lemon and McCreary J.A. 686 6 1 and, specifically, the purpose prong of Lemon. Is the primary purpose of this Executive Order to 2 3 disfavor Muslims? 4 take all of the publicly available evidence together, that it 5 shows that purpose. 6 blind eye to much of the evidence which is apparent to 7 everybody, and that's exactly what McCreary tells us not to do. 10 11 Instead, it's asking the Court to turn a THE COURT: 8 9 The Government never disputes that if you consider? limit. So is there a limit to what the Court can The Government identifies what they think is a You disagree with that. MR. JADWAT: Sure. But is there some limit? The limit is what a reasonable 12 observer would find relevant or probative on the question of 13 what the Government's objective and purpose is. 14 the real teaching both of McCreary and of other cases in the 15 Supreme Court's religious jurisprudence. 16 I think that's If you look at, for example, Lakumi, the Court considered 17 there reactions of audience members during a hearing regarding 18 the bill in question. 19 If you look at McCreary itself, the Court considered the 20 speech given by a pastor, who was not a government official, at 21 the unveiling of the Ten Commandments display. 22 The real, I think, thrust of what the Courts have said is 23 that it's a question of what a reasonable person would 24 understand, and that it doesn't make sense to blind the Court, 25 just as it doesn't make sense to presume that a reasonable J.A. 687 7 1 person in the public would be blinded to information that's 2 readily available and is reliable. 3 Again, there's no question here that the President made 4 the statements that he made, that his spokespeople made the 5 statements they made, or that they were true. 6 So again, it would be unnatural and not in keeping with 7 the inquiry, that the Court is supposed to conduct under the 8 establishment clause, to cast that aside. THE COURT: 9 So let's assume that I consider all those 10 statements. 11 provided a national security rationale for the order. 12 Generally, the Courts defer, at least to some degree, on 13 national security issues to the Government. 14 The Government, in the Second Executive Order, has Do I need to conclude that the Government's purpose in 15 the national security -- the national security purpose is a 16 sham and is false in order to rule in your favor? MR. JADWAT: 17 I think you need to conclude that the 18 original purpose of the order -- the original purpose of the 19 original order continues through to the second order, and 20 that's what the Government itself has told us. 21 senior White House official said, that it was aimed to achieve 22 the same effect, with a few tweaks to deal with what the courts 23 have said. 24 25 THE COURT: What's what the But the Government, in the Executive Order, says that a purpose of the Executive Order is the need J.A. 688 8 1 to protect the public. 2 overrule that? MR. JADWAT: 3 On what basis can I just completely Well, I don't think you need to overrule 4 it. I think you need to think about it in the same context 5 that the Court thought about the effort in McCreary to back 6 fill what it had already done by adding, in that case, 7 additional features to the display and also additional 8 statements about purpose. 9 didn't divorce the third display at issue in that case from the Those didn't dilute sufficiently and 10 first and second displays at issue in that case, just as the 11 addition of some national security language to this order 12 doesn't divorce it from the first order and the purpose behind 13 the first order. 14 In addition, I think it's important to note that the 15 Government's invocation of these national security concerns 16 ignores the Government's own specific report on the question of 17 whether a seven-country ban or a six-country ban would serve a 18 national security purpose. 19 THE COURT: You're talking about the DHS INA report? 20 MR. JADWAT: That's right, and the other DHS report, 21 both of which were clearly prepared for the purpose of 22 examining whether this approach made sense. 23 on previously compiled information from the State Department 24 about things that might lead to an idea that there was some 25 increased terrorism risk in these six countries. Instead, they rely J.A. 689 9 1 But as the Interfaith brief, amicus brief points out, 2 even if you take the order on its own terms, that is a faulty 3 application of the methodology they claim to be using, because 4 there are at least two non-Muslim countries that present 5 greater concerns on the criteria that they outline -- 6 THE COURT: 7 MR. JADWAT: 8 Which countries are those? Venezuela and the Philippines, I believe. THE COURT: 9 MR. JADWAT: 10 I'm sorry, the Philippines and where? Venezuela. I mean, if you go to the 11 questions of are they terrorist-safe havens, are there 12 issues -- 13 THE COURT: 14 MR. JADWAT: Where is that in the record? It's in the amicus brief of the 15 Interfaith organizations. 16 reports -- or all of the statements in those reports. 17 also, the amicus brief of the national security officials -- 18 THE COURT: They did an analysis of all of the So where would the limit be? Again, Because 19 suppose the administration or executive branch determines that 20 there is a need to do more or even to restrict travel from any 21 particular country for reasons completely unrelated to the 22 President's statements, how could they ever do that without you 23 coming back with the exact same argument? Where would the 24 alleged taint from these statements end? Is it a matter of 25 time, or is it a matter of something else? J.A. 690 10 MR. JADWAT: 1 2 I think time would matter. The actual nature of the order would matter. THE COURT: 3 But national security issues may not wait 4 for time. There could be some event that requires an action 5 tomorrow, and you would say because he made these statements a 6 month and a half ago, they can't do anything? MR. JADWAT: 7 In that event, there would actually be 8 something to point to that would explain why they needed this 9 order now. 10 And that's, again, what McCreary says. They addressed 11 this concern that you've kind of tied the hands of the 12 Government going forward. 13 person will make a reasonable judgment, right? 14 observer is able to take into account what's changed, what's 15 different, both in the order itself or the law itself and in 16 the conditions on the ground. 17 asking. 18 19 20 They said no, you know, a reasonable This reasonable That's all that we would be What's absolutely clear is that we're on the other side of that spectrum right now -THE COURT: Well, what I'm just trying to understand 21 then is, since they have offered some additional information, 22 are you saying that I need to find that's offered in bad faith? 23 MR. JADWAT: I think you need to evaluate the 24 information, right, and see whether it negates what, again, is 25 an undisputed -- what they do not dispute is clear evidence of J.A. 691 11 1 an improper purpose. 2 And I think the fact that these national security 3 justifications that they've offered in the new order, one, are 4 kind of trying to backfill an order that's the same in 5 structure and the same in effect as the original order. 6 fact that the statements themselves, again, if you actually 7 take a look at them and see whether they make sense, they fail 8 on their own terms and -THE COURT: 9 The Well, give me a scenario where either 10 what they say in the order or what happens on the ground or 11 what analysis is provided, where you would acknowledge that an 12 action is not the result of the President's prior statements 13 but is based on a judgment by the national security officials 14 now. 15 MR. JADWAT: Sure. If there was a credible threat of 16 a specific -- I'm not saying this is the only scenario; I'm 17 just trying to think of one -- a credible threat of a specific 18 attack that they knew was associated -- that they had some 19 reason to think was coming from a particular group of people in 20 a particular country that was Muslim or even from an 21 organization that was, you know, an Islamic terrorist 22 organization in a particular country, and the best way to 23 account for that threat was to impose some sort of travel 24 restriction, I don't think we would say that that's necessarily 25 following through on this improper purpose. J.A. 692 12 1 But that's not what we have here. What we have here is 2 the President saying, before he was elected, that he was going 3 to go forward with a plan to ban Muslims. 4 week later he introduces a plan to ban Muslims. 5 Not every Muslim, but to ban Muslims. 6 only when faced with resistance from the Court, goes back and 7 reengineers it -- again, in his own words -- to accommodate the 8 Court's ruling, not to go back and figure out what's the best 9 thing from a national security perspective, and to try to move 10 11 He gets elected. A Imperfectly. And then when faced -- forward with the same plan. So there's really no -- again, it would be not 12 reasonable. It wouldn't make sense for a reasonable observer 13 to look at this new order as having been born afresh, without 14 any of the history being taken into account. THE COURT: 15 So are you arguing that the refugee 16 provisions are impacted by these alleged statements regarding 17 the Muslim ban? 18 focus primarily on the ban of travel from citizens of the six 19 countries. 20 Because your brief and your argument seems to MR. JADWAT: Well, I think it's clear from the way 21 that this order is put together that the Government -- or that 22 President Trump, when he created this, thought of it as one 23 coherent system, right, and that I think the purpose -- 24 25 THE COURT: Where in the record is that? You've identified statements in which the President referenced the J.A. 693 13 1 concept of identifying dangerous territories and barring travel 2 from there. 3 referring to the idea that banning refugees would be a way to 4 effectuate a Muslim ban. 5 I did not see references to the President MR. JADWAT: Well, there are actually a lot of 6 statements, some of which are -- I think it's footnote 12 of 7 our reply -- are, again, the President's own statements 8 conflating refugees with Muslims and making very clear that, in 9 his mind, the danger of Muslims and the danger of refugees is 10 all one combined danger, and I think that's why you do see this 11 refugee ban as part of the Muslim ban. 12 And in addition, if you look at the effect of the ban, 13 again, as President Trump pointed out, the people that were 14 actually banned -- or unbanned when the court orders went into 15 effect, 70-plus percent of the people who came in in the 16 ensuing weeks were from the seven banned countries, those 17 people who came in as refugees. 18 circumstances, perhaps, that explain that, but our 19 understanding is that over 50 percent of the refugees who 20 typically enter the United States are, in fact, Muslim. 21 there's a factual -- which, of course, is very disproportionate 22 to their actual population in the world. 23 to ban Muslims from the United States, banning refugees one 24 good way to do it. 25 THE COURT: There were some special And so So if you were trying What's the most compelling statement in J.A. 694 14 1 the record that the President or one of his agents indicated 2 that banning refugees was a proxy for banning Muslims? MR. JADWAT: 3 4 I just want to flag, Your Honor, that I'm about halfway through our time. If you could give us a moment, maybe I'll have the 5 6 specific statement for you in a moment. 7 you look at the whole Twitter compilation, which we provide in 8 that footnote, of the statements of the President regarding 9 refugees, that that conflation is very clear. THE COURT: 10 11 Okay. Let me ask you some questions about the INA issue, Section 202 of the INA. 12 MR. JADWAT: 13 THE COURT: Sure. So the statute refers to visa issuance or 14 immigrant visa issuance. 15 as does 212(f). 16 terms? 17 But I think, again, if The Executive Order refers to entry, Isn't there a difference between those two And why doesn't that make a difference in this case? MR. JADWAT: Well, there is a difference between 18 those two terms. And in fact, it is significant in this case, 19 but it significantly supports our contention that Section 202 20 is at issue here and does prevent exactly what they're doing, 21 because even though the order talks about entry, they're not 22 barring the entry of people with visas anymore. 23 barring the entry of people with green cards. 24 effectuating this ban by barring the issuance of new visas to 25 people from these countries. They're not They're only J.A. 695 15 THE COURT: 1 So the Executive Order does not say 2 they're barring the issuance of visas. 3 as a practical matter, that's what happening? 4 MR. JADWAT: 5 THE COURT: I think your argument, I think -Is there some action by the Secretary of 6 State that indicates that visas are now not being issued or not 7 being processed as a result of the Executive Order? MR. JADWAT: 8 9 That's right. And actually, I believe it was the Government's contention that we wouldn't know 10 whether our clients were actually banned until they had had 11 both a decision on their visa application and a decision on the 12 waiver, which they say is part of the visa application process. 13 So I don't think there's actually any dispute between the 14 parties -- although I'm sure they'll tell you if I'm wrong -- 15 that the way this ban operates is by freezing the issuance of 16 visas. THE COURT: 17 Right, but what action has been taken in 18 that regard? 19 saying no further visas will issue to people from these 20 countries or something to that effect? MR. JADWAT: 21 22 23 Is there some action by the Secretary of State Like how do they implement it, is that -THE COURT: The President's Executive Order, as I 24 read it, does not say you cannot issue a visa. It says you 25 cannot allow entry, which is a different question. J.A. 696 So where is 16 1 2 3 4 the action saying no visas will be issued? MR. JADWAT: I think it's the clear implication of the order, and I think it's also what they plan to do -THE COURT: Well, do you have any facts in the record 5 that indicate that that is actually what has happened? 6 Government said that visas will be processed to the point of 7 looking at waivers, but is there some contrary fact stating 8 that they're actually -- they've shut the door at the visa 9 office in these various countries or they've done something 10 11 The different, like the embassy? MR. JADWAT: But even if they process them to the 12 point of deciding on a waiver, what they are not saying, I 13 think very clearly, is that they're going to issue visas to 14 applicants from these countries absent a waiver. 15 Again, I'm sure that they're probably in a better 16 position to clarify this than I am, but I really don't think 17 there's any question of fact about whether visa issuance is 18 going to happen if this order goes into effect except -- again, 19 except for people who are -- 20 THE COURT: So what would be the order you would be 21 looking for in this area? 22 visa issuance and perhaps -- assuming you're entitled to some 23 conclusion that they can't prevent the issuance of visas, what 24 would you be asking an order to say? 25 MR. JADWAT: Because INA Section 202 talks about Well, if it was just the Section 202 -- J.A. 697 17 1 THE COURT: 2 MR. JADWAT: Just on that, yes. Just a pure Section 202 order I think 3 would say that they could not not -- refusing to issue visas 4 or -- implementing the terms of the order that would require 5 them to deny visas to applicants from these countries would be 6 enjoined. THE COURT: 7 8 But there's nothing in the order that says you can't issue a visa, as far as I can see. MR. JADWAT: 9 THE COURT: 10 Again, I -Would it be enjoining the terms of the 11 Executive Order or enjoining the terms of some other document 12 issued by the Secretary of State or someone else? MR. JADWAT: 13 It would be at least enjoining the 14 effect of the Executive Order as to visa issuance. 15 more to the point, the question is not just whether Section 202 16 specifically prohibits the actions they're taking here, but 17 also whether Section 212 authorizes what they're doing here. 18 Again, I think section -THE COURT: 19 20 And I think Are you aware of any cases where a court has found that a president has overreached on a 212(f) action? 21 MR. JADWAT: 22 THE COURT: 23 MR. JADWAT: No, but I'm also --- for whatever reason? There's also no 212(f) proclamation that 24 compares to this, either in its scope or in its discriminatory 25 nature. So I don't think that the lack of -- just in the same J.A. 698 18 1 way that there's not another case involving establishment 2 clause violations with respect to the immigration laws is not, 3 I think, a knock on our case. 4 unusual and extreme what the administration is doing here. 5 THE COURT: I think it demonstrates just how So even if there was some order barring 6 anybody from blocking the issuance of visas, is there any basis 7 to order that the Government cannot bar entry when they present 8 at the border? 9 Isn't that a different situation? MR. JADWAT: Right. Well, I mean, I do think that 10 the -- so I think the 202's effect doesn't stop at the point of 11 visa issuance, in the sense that Section 212 has to be read 12 against both Section 202, against the other provisions for 13 issuance of visas, and against the inadmissibility grounds that 14 are specified in the statute, and, of course, against RIFRA and 15 the Constitution. 16 ability of the Government to use 212(f) -- like, statutorily 17 limit the ability of the Government to use 212(f) in the manner 18 that it was trying to do in the first order, to actually bar 19 people at the gate. 20 I think all of those things limit the And so I think that -- THE COURT: Would you agree that entry and admission 21 are the same thing, or does entry mean something different than 22 admission as defined in the INA? 23 MR. JADWAT: 24 25 between them. I think there's some distinctions I don't think they're necessarily relevant here. I just wanted to flag, Your Honor, I see we're down to J.A. 699 19 1 2 3 five minutes and -THE COURT: I'll probably extend a little bit and give some time to your colleague. 4 MR. JADWAT: 5 THE COURT: 6 7 Okay. Let me just see if I have another question on that topic. I did want to ask, the Government makes the argument that 8 under section B, that is 1152(a)(1)(B), that some of the 9 actions that might be taken fall within that provision, in that 10 they are not outright stopping visa issuances forever; they're 11 just modifying the procedures. 12 MR. JADWAT: What's your response to that? I'd make two points, Your Honor. First, 13 it's not clear that they're not stopping them forever. 14 stopping them, initially, for 90 days. 15 extend the ban indefinitely or until such time as the agency 16 decides that the ban should be lifted. 17 think, a background point, but that's relevant. 18 They're There's a provision to And so that's just, I And I don't think that a suspension of issuance is really 19 the sort of procedural thing that's encompassed in (B). I 20 think the ordinary way that you would understand procedures 21 around issuance would be things like, you know, literally, 22 what's the procedure. 23 what decision? 24 But I don't think that they -- especially given the meat of 25 202, like that the provisions part allows for a suspension. Who in the State Department has to make How are those things related to each other? J.A. 700 20 1 THE COURT: Are there any cases that set an outer 2 limit on what could be defined as an activity under section (B) 3 that doesn't implicate section (a)? 4 5 6 MR. JADWAT: I'm not aware of any, but I'd be happy to very quickly research that at the end of the hearing. THE COURT: Okay. So why don't we stop for now. 7 Let's move on to Mr. Cox, and we'll plan to make it about ten 8 minutes and still allowing you to keep the extra rebuttal time. 9 And then we'll give the Government equal time. 10 11 12 13 ARGUMENT BY MR. COX FOR PLAINTIFFS MR. COX: Thank you, Your Honor. Justin Cox, from the National Immigration Law Center, for plaintiffs. As Your Honor is obviously aware, this Executive Order 14 goes into effect at 12:01 in the morning tomorrow. The 15 Executive Order, as we've tried to explain in our briefing, 16 threatens to inflict a variety of injuries on our plaintiffs, 17 which, collectively, have standing on a variety of 18 different types of standing -- 19 THE COURT: Can you explain or identify for me which 20 of the individual or organizational plaintiffs is your best 21 case for standing on each of the claims? 22 clause, INA Section 202 and the Refugee Act. 23 MR. COX: Sure. So establishment I think the establishment clause 24 claim, there are -- and for that matter, the equal protection 25 claim, virtually all of our plaintiffs have standing in one J.A. 701 21 1 form or another. So IRAP, for example, has third party 2 standing to represent the interests of its clients, including 3 those in the United States -THE COURT: 4 Well, as I understand it, just to proceed 5 with this case or to get to the merits, I only need to find one 6 plaintiff. 7 case, the easiest one to find standing from, from your 8 perspective for each of these? But which is the one that's your most compelling MR. COX: 9 Sure. That would probably be one of the 10 individual plaintiffs who is here. 11 Number 1, at page 45 of the joint record, his declaration talks 12 about how the anti-Muslim views driving the Executive Order 13 have inflicted an injury on him, this condemnation of his 14 religion. 15 16 So, for example, John Doe The same is true of John Doe Number 3, paragraph 12 of his declaration. 17 Mr. Meteab, paragraph 14, joint record 53. 18 All of these individuals have expressed that they feel 19 that their religion has been condemned by this Executive Order. 20 But beyond that, of course, it's not just a psychological 21 injury in these cases. 22 to suffering the condemnation injury, have -- and will be if 23 the Executive Order goes into effect -- will be separated from 24 their families, that delay that's already significant -- 25 THE COURT: These individuals have -- in addition What about on the INA claim, what's your J.A. 702 22 1 best case for a plaintiff who has standing? MR. COX: 2 On the INA claim, Your Honor, I believe 3 that we -- so the organizational plaintiffs would certainly. 4 So IRAP's clients' third-party standing would have standing 5 there because several of their clients get visas -- or would 6 get visas. 7 They have I-130 petitions pending -THE COURT: The theory on that is a U.S. resident 8 having standing based on the fact they have a family member who 9 wants to come over? 10 MR. COX: Yes, Your Honor. 11 THE COURT: If you want -- And does it have to be someone in that 12 case who is looking for an immigrant visa as opposed to coming 13 in as a refugee? 14 MR. COX: I'm not sure that it matters doctrinally, 15 but they have both. 16 variety of immigration relief available to them. 17 IRAP and HIAS have clients who have a If you want an individual, Mr. Harrison, the United 18 States citizen who is in Texas. His same-sex partner is in 19 Iran and is petitioning for -- he's petitioning for a K-1 visa 20 on behalf of his partner who is in dire risk -- he's at 21 constant risk of harassment and not just persecution but 22 prosecution in Iran, where homosexuality is a crime. 23 would clearly have standing with regards to that claim. So he 24 On the equal protection claim, I think virtually all -- 25 the equal protection injury is the deprivation, the denial of J.A. 703 23 1 equal treatment. So of course, that is -- THE COURT: 2 3 the United States? 4 MR. COX: For the applicant or for the sponsor in The sponsor in the United States would 5 certainly have standing to assert that because their petition 6 is being treated differently because of the relative for whom 7 they are petitioning is in one of these particular countries. 8 THE COURT: 9 MR. COX: What about Refugee Act? The Refugee Act, we would have -- Jane Doe 10 Number 2 would certainly have standing there because, as we 11 explained in the briefing, her family is in Saudi Arabia, on 12 the border. 13 pending, but through the Direct Access Program, certain -- 14 after that I-130 petition is approved. 15 a refugee claim, which cuts the wait time, in order for her 16 sister's family to come in, from approximately 13 years to more 17 like 18 to 24 months. They're filing a -- she has an I-130 petition THE COURT: 18 It gets converted into Let me ask you about the Refugee Act 19 then. 20 with some threshold issues. 21 applies here, and what's not clear to me is what exactly is the 22 final agency action that you're challenging? 23 what that is? 24 25 So the Government's identified some potential issues MR. COX: One question is whether the APA Can you tell me So I think there a variety of actions that we've identified in the complaint as being final agency action J.A. 704 24 1 in this regard. 2 security checks, for example, for the processing of refugees -THE COURT: 3 4 So the Department of State has suspended new Are there documents that effectuate these decisions, like a memo or directive or something? MR. COX: 5 There are e-mails, for example, that go 6 out. So, for example, on Monday, March 13th, a Department of 7 State official e-mailed to advise that, quote, there should be 8 no travel booked after March 30th of refugees. THE COURT: 9 10 action? Do you have any authority for that? MR. COX: 11 So does that count as a final agency Well, as we cited in our reply memorandum, 12 a press release can be a final agency action or it can reflect 13 final agency action. 14 certainly seems that a directive from the Department of State 15 to the resettlement agencies, who have this statutorily 16 codified rule in the refugee resettlement process in which 17 they're advised, for example, that the previous representations 18 made by the Department of State about how many refugees each 19 resettlement agency will be resettling in a particular year, 20 has been recalculated to reflect the new lowered admissions 21 level. 22 consequences certainly flow from that, and the agency's 23 decision-making process is final as of that point. 24 there's nothing more to be done. 25 And if a press release can, then it That certainly seems like final agency actions. THE COURT: Legal I mean, So even if you get to the merits of that, J.A. 705 25 1 and then, even if I were to find that the action was in 2 conflict with the statute, what exactly is the relief that you 3 would be seeking? I get the impression you would like me to order that the 4 5 President admit 110,000 this year, but I'm not sure how we 6 would do that. So what actually are you looking for? MR. COX: 7 Well, Your Honor, in this case, an 8 injunction of Section 5(d), of the current Executive Order, and 9 Section 6(d), of the one tomorrow, should give our clients full 10 relief. 11 undisputed on this point, the United States was on target to 12 hit this cap of 110,000 refugees. 13 standing between us right now and that point was the Executive 14 Order. 15 Prior to the Executive Orders, as the record is The only thing that is That's the only thing that's changed. THE COURT: So even if one were to enjoin that 16 section, what would prevent the Executive Branch from slowing 17 down the processing to the point that they don't actually 18 process 110,000 this year? 19 procedure, why couldn't they just do that? 20 MR. COX: Just as a matter of process or Well, I think as a practical matter, the 21 Executive Orders have been so disruptive at this point that it 22 is perhaps unlikely to hit the 110,000 mark that we were 23 previously on track to hit. 24 that tens of thousands of individuals, who should have been 25 resettled in this country this fiscal year, wouldn't be Nonetheless, there's no reason J.A. 706 26 1 resettled. 2 Court's order, I think that that would be a different question. 3 But we have no reason to believe -- there's no practical 4 consideration that we're aware of -- 5 If the Executive Branch attempts to circumvent this THE COURT: Well, would it be a circumvention of the 6 order if -- I mean, all that happened in that section was the 7 President set a 50,000 person maximum. 8 any change in processes or procedures; that's not in the order. So it didn't require 9 So what exactly would be the effect of enjoining that 10 section, in terms of the President's ability to increase or 11 decrease the specific number that end up getting admitted that 12 year, so long as he doesn't change the statutory maximum? 13 MR. COX: Well, Your Honor, I think as a practical 14 matter in this case, the fact is that the PRM, population 15 refugee and migration, has indicated that they're limiting the 16 number of individuals who can travel in any particular week 17 because of the lowered ceiling, for example. 18 in the record. 19 not processing applications, and it's all because of the 20 lowered ceiling. 21 That's undisputed They've stopped refugee processing. They're There's no fact question on that. So as a practical matter, it seems to us undisputed that 22 this is going to have real real-world consequences for our 23 clients and their clients as well, because but for the 24 Executive Order, there was every expectation -- and in fact, 25 many of them are already booked for travel -- J.A. 707 27 THE COURT: 1 So I guess the question is if I enjoin 2 that section and say, effectively, that this change in the cap 3 is invalid, and the Executive Branch continues to do what it's 4 doing, have they violated the order, or have they simply 5 processed refugees at a particular pace and not changed the 6 maximum of 110,000? MR. COX: 7 I think that would be a question of fact, 8 Your Honor. I think that as a practical matter, if they have 9 legitimate logistical/operational reasons for slowing down the 10 pace of refugee resettlement, that would be, certainly, a 11 different question. 12 But the record indicates that, in fact, to read from the 13 e-mail, bookings are still limited to approximately 400 14 individuals per week, globally, due to the FY17 ceiling of 15 50,000. 16 because we just got it, I believe, yesterday. 17 undisputed that the entire process has just ground to a halt. This e-mail, by the way, is not in the record yet THE COURT: 18 Okay. But it's also So then one last question on the 19 Refugee Act. I believe the Government makes an argument that 20 the APA doesn't apply because even if there is agency action at 21 issue by State or Homeland Security, it flows from the 22 Executive Order, not from a statue or some other source of 23 authority. 24 Do you have any authority to counter that argument, that 25 if it goes through the President, it's not subject to the APA? J.A. 708 28 1 MR. COX: Well, my recollection, Your Honor, is that 2 the cases that they cite for that proposition, in those cases 3 the agency was -- they were carrying out actions on the 4 President's order pursuant to sort of -- there was an expressed 5 statutory mandate that the President, effectively, had 6 delegated to the agencies. 7 to the contrary. 8 the annual limit on refugee admissions is set. 9 That's not the case here. In fact, The statute sets the procedure through which Essentially, the argument is that the agencies are 10 supposed to follow and adhere to the process that the Refugee 11 Act sets out. 12 and then at the end we have a limit. 13 effectively ordered them to do otherwise, but that order was 14 invalid because it violates the Refugee Act itself; it's not 15 authorized by 212(f). 16 Refugee Act in ignoring the proper process through which this 17 limit is set each year. The Refugee Act says we go through this process, 18 THE COURT: 19 MR. COX: 20 THE COURT: So the President has And so the agency is violating the Okay. Well, thank you very much. Thank you, Your Honor. We'll save those five minutes for the 21 Government. So I think it's approximately 40 minutes that we 22 used for the plaintiffs. 23 So we'll hear from the Government now, Mr. Wall. 24 To clarify, we used about 35 minutes, so the Government 25 has 40 at this point. J.A. 709 29 ARGUMENT BY MR. WALL FOR THE DEFENDANTS 1 MR. WALL: 2 Thank you, Your Honor. Jeffrey Wall for 3 the United States. I'm going to address the harm and the 4 standing issues and also the merits, the establishment clause, 5 and, to the extent Your Honor wants to hear about it, the 6 statutory claims. 7 their brief and argument, but we would certainly want to 8 address those if the Court is thinking about addressing them in 9 any order. They didn't spend a lot of time on that in Mr. Garg will talk about the refugee cap. 10 That was 11 obviously briefed separately, put on a separate schedule. 12 don't read that to be the subject of their TRO or PI motion. 13 But in any event, Mr. Garg is going to address the refugee cap 14 issue -THE COURT: 15 We Right, it's a separate motion, but we 16 said we might talk about it today, as we have already. 17 ahead. MR. WALL: 18 19 So go So I'm going to defer to him on those issues. 20 THE COURT: 21 MR. WALL: Okay. Your Honor, as you know, the Ninth Circuit 22 had concerns about the original order. It asked the Executive 23 to narrow it, and the President, rather than litigate, did 24 exactly that. 25 Secretaries of State and Homeland Security directly, serially After consulting with the attorney general, the J.A. 710 30 1 addressed, in the new order, the Ninth Circuit's concerns 2 and -THE COURT: 3 Those concerns were due process concerns, 4 if I recall, at least the ones that were specifically 5 articulated. And there's no due process challenge here, so. MR. WALL: 6 Well, that is true in part, Your Honor, 7 but I think there were a number of concerns that the order 8 addressed. 9 no longer covers aliens who are located in the United States; It no longer covers lawful permanent residents; it 10 it no longer singles out Syrian refugees; it no longer gives 11 any preference to victims of religious persecution; and we've 12 now clarified how the waiver process works as part of the visa 13 application and interview process, and that was a subject of 14 some concern to the plaintiffs in the Ninth Circuit. 15 I think what's remarkable is that despite all of the 16 substantial changes that the President made to the order and 17 the fact that there is no grave harm to the plaintiffs when 18 this order takes effect at 12:01 tomorrow morning, they're here 19 asking for emergency, immediate relief. 20 I want to start with the harms and then move to the 21 merits, if I could, because I want to get into the record just 22 a little bit. 23 When you asked about the individual plaintiffs, and on 24 the visa side, counsel started with John Doe 1 and Harrison. 25 As far as we can tell from our records, Mr. Harrison's fiance J.A. 711 31 1 was issued a visa within the last couple of days and, thus, 2 would not be subject to the order, and his claim would be moot. 3 Now, it's obviously on plaintiffs to come forward and update 4 the Court. 5 his K1 visa has been issued or it is set to be issued in 6 advance of the order taking effect. 7 We don't have those facts, but as best we can tell, On John Doe 1, his wife is currently waiting on an 8 interview, a visa interview, and, of course, as part of that 9 interview will be eligible for a waiver. 10 So again, I don't think it has any imminent harm that 11 plaintiffs could demonstrate during the brief period that would 12 be covered by a TRO. 13 THE COURT: So they raised the establishment clause 14 as one of their arguments, and that harm is not as specific as 15 a visa issuance. 16 the Courts generally seem to indicate that irreparable harm is 17 almost presumed in that circumstance. 18 I think it maybe harms -- in fact, I think MR. WALL: Do you agree with that? Well, the Courts have talked about the 19 harms that flow from the First Amendment violation but, of 20 course, every time you have a First Amendment claim, you can't 21 come into court and get a TRO or a PI. 22 demonstrate some immediate irreparable harm beyond just the 23 injury you're claiming from the violation itself. 24 25 You've got to Here, on the establishment clause side, they don't have anyone who can do it. The aliens, of course, don't have any J.A. 712 32 1 establishment clause rights, and they haven't claimed that they 2 do. 3 To the extent that there are people in the U.S. raising 4 those claims, what we would say is that the organizations can't 5 raise them on their client's behalf because there's no 6 hindrance to the plaintiffs raising them themselves, as they 7 have, and they also run straight into the doctrine of consular 8 nonreviewability. 9 It's long been the case -- THE COURT: Well, but they're not arguing that a 10 particular visa should or should not be issued. 11 arguing that the Government has established a disfavoring of 12 Muslims in a general sense. 13 nonreviewability? 14 MR. WALL: They're So why is that covered by consular Well, I think there's two different harms 15 to which they're pointing. 16 visa, and on that side they run smack dab into consular 17 nonreviewability. 18 19 20 21 One is the delay or denial of the On the stigma side, I do think you're right but -THE COURT: But aren't they challenging the policy? They're not challenging the individual determination. MR. WALL: Well, it's not -- they have asked you to 22 enjoin the entire order but, of course, the only violations 23 that these organizations and plaintiffs can claim and get 24 relief for are violations that harm them, which is to say the 25 family members or clients that they claim should be able to get J.A. 713 33 1 2 a visa, that are going to be denied one under the order. And as far as what we're looking at for the establishment 3 clause harm is not the denial of the visa itself, which 4 judicial review has precluded it from that, but just the stigma 5 of, as they say, being associated with a policy that, in their 6 view, discriminates. 7 kind of stigmatic injury doesn't satisfy Article III unless you 8 are the person directly subjected to the treatment at issue, 9 and that class of people is the affected aliens who have no 10 11 Courts have repeatedly held that that establishment-clause right in the first place. So I think they've got serious problems no matter how 12 they break down the standing argument. And in any event, even 13 if they could show a plaintiff with standing, that's not what 14 they need for a TRO. 15 irreparable injury during the brief period that would be 16 covered by a TRO, and they can't point to anyone on that. 17 I mean, take their claim on the refugee side. They need immediate, imminent, They point 18 to Jane Doe 2, who wants her sister to come into the country. 19 She's still at the point where -- what we're talking about is 20 an I-130, which is just a DHS document. 21 as we know, hasn't even been approved. 22 Doe 2's sister would enter the visa process, but the backlog 23 for sisters and siblings is many, many years. 24 this order is going to operate against Jane Doe 2's sister in 25 the next couple of weeks is frankly -- it's not remotely That petition, as far If it does, then Jane The idea that J.A. 714 34 1 2 plausible. So what they're lacking with regard to either visas or 3 refugees is someone who is going to face imminent injury in the 4 next couple weeks, and the only person about whom they possibly 5 could have made that claim was Mr. Harrison's fiance. 6 again, as I say, as far as we can tell, that K-1 visa has 7 issued, and his fiance is no longer subject to the order. 8 9 THE COURT: And So on standing, you raise this issue of -- or you cite at least one case, I think Lujan, that refers 10 to the injury needing to be a legally protected interest. As 11 far as I can tell, other Supreme Court cases since then don't 12 always use that term. Sometimes they do; sometimes they don't. 13 How do you define that term, and how does application of 14 that term -- how can we apply that without effectively getting 15 into the merits, which we're not supposed to do? 16 MR. WALL: Well, I think there is some overlap with 17 the merits, but courts have said that standing analysis 18 sometimes requires looking at issues that may, to some extent, 19 overlap with the merits -- 20 THE COURT: 21 resolve the merits. 22 MR. WALL: Well, it can't mean that we have to So what is the line there? I think the line is whether you fall -- 23 what courts have said, when they're trying to figure out 24 whether you have a legally cognizable interest for standing 25 purposes, is whether you fall within the zone of interest meant J.A. 715 35 1 2 to be protected by the law at issue. Here, I think the very real problem that they have is 3 that -- and the doctrine of consular nonreviewability is a 4 great example of this. 5 would be passing strange if the third party could challenge it, 6 let alone the organizational plaintiffs who want to raise it on 7 behalf of their U.S. clients. 8 removed -- 9 10 THE COURT: MR. WALL: 12 THE COURT: 13 MR. WALL: 15 So it So we're sort of two degrees But they don't have to show that they would be successful on a claim, correct? 11 14 The alien can't challenge it. For standing purposes, that's right. For standing. They've got to show likelihood of success on the merits separately. THE COURT: But just to have standing, they just need 16 to show that they have a claim that -- perhaps one could frame 17 it as a claim that is not obviously foreclosed? 18 MR. WALL: I think they've got to demonstrate a 19 concrete impending injury. 20 III injury in order to have standing. 21 most clear -- I grant you, with the organizational plaintiffs, 22 they're the easier case because they've got no claim to legally 23 cognizable injury, because they're just -- 24 25 THE COURT: They've got to demonstrate Article And the problem -- it's Well, I guess that's the question. seems to me that HIAS has indicated that, as a practical J.A. 716 It 36 1 matter, they will be harmed, in the sense that money will be 2 lost in some form, and you're saying that if we look ahead, 3 there's no way they could ever recover that money from the 4 Government, so there's no standing. MR. WALL: 5 Is that your argument? I'm saying two things. One, we think it 6 is very speculative that the harm that they've -- because the 7 funding comes in, as we understand it, per refugee. 8 fewer refugees they process, the fewer funds come in, but the 9 less they spend. So the It's not at all clear to us, based on their 10 pleadings, that they're going to suffer a financial loss. 11 even if they were, it's not a financial loss that's legally 12 cognizable under the immigration laws. THE COURT: 13 Well, I guess that's the question. But If 14 it's caused by the defendants' conduct, which their theory is 15 it is; that because of this Executive Order, we now have less 16 money, and perhaps accepting the plaintiffs' version of that 17 for the moment here in the hearing, then perhaps the question 18 is is it necessary, under the law, for there to be a conclusion 19 that they're going to be able to recover from the Government? 20 Or is it enough to say the Government has actually caused this 21 injury? 22 Maybe they can't win on a breach of contract issue, but 23 they've been harmed by this action, and to the extent the 24 action is invalid, they have a right to challenge it, even if 25 they could never recover on a breach of contract theory. J.A. 717 37 MR. WALL: 1 Yeah, I'd say a couple of things. Setting 2 aside the fact that we think the harms are speculative, but 3 assuming they are -- 4 THE COURT: 5 MR. WALL: Just for the moment. Right, just for the moment. It's not the 6 kind of harm that's legally cognizable, because the harm flows 7 simply from not being able to resettle refugees into the United 8 States and having to resettle them somewhere else, and that's 9 not a legally cognizable harm because those aliens have no 10 right to be resettled in the United States, and they can't 11 claim an injury from that one degree removed. Even if you set that to the side, that would get you to 12 13 standing, but it wouldn't remotely get you to the kind of harm 14 that you would need to enter a TRO for the next couple weeks. What they certainly can't show is that they're facing 15 16 some kind of imminent, irreparable harm over the next couple 17 weeks so that the Court needs to decide that right now, rather 18 than in the normal course of the litigation. So I think they've got both of the problems. 19 They've got 20 the Article III problem, and they've got the TRO emergency 21 relief problem. THE COURT: 22 So let's talk a little bit about the 23 establishment clause. Am I correct as a matter of fact that 24 this six-country ban is not something that 212(f) has ever 25 done? I think, at most, there's been, arguably, a relatively J.A. 718 38 1 complete ban of individual -- one country at a time on one or 2 two occasions but not more than that; is that correct? MR. WALL: 3 I think that's right, Your Honor. We did 4 have the Cuban ban, and then we have a couple that drew 5 nationality-based distinctions -- for Panamanians and 6 Nicaraguans, Sudanese -- that also drew other distinctions in 7 addition to nationality. But I want to be very clear about what has happened here. 8 9 What happened under the previous Administration was they said, 10 look, there are certain nationals and travelers to various 11 countries that we're going to take out of the Visa Waiver 12 Program; we're no longer going to let nationals from these 13 listed countries qualify for the Visa Waiver Program -THE COURT: 14 15 They were dual nationals, right? Because the countries weren't under the Visa Waiver Program themselves. MR. WALL: 16 That's right; dual nationals, that's 17 right. And what this Administration came in and did was it 18 took the same judgment, on the basis of the same risk for the 19 same listed countries, and said, basically, we're making a 20 different judgment about how much risk we're going to be 21 willing to tolerate, and what we want is a brief pause while we 22 ensure that the governments of these troubled countries are 23 able to provide us with reliable information so that we can 24 determine whether their nationals present a threat to the 25 United States or not. J.A. 719 39 1 Now, that is certainly a step beyond what the previous 2 Administration did, but it's done with respect to the same 3 countries and on the basis of the same risk. 4 President did in the new order, actually, is go country by 5 country by country and lay out exactly the kind of factual 6 record that the plaintiffs had criticized the Government for 7 not providing before in the original order. 8 9 And what the So I think what this order does -- granted, it is a step beyond what the previous Administration did, but it's on the 10 basis of the same distinction. 11 that have the same sort of troubled political conditions, the 12 same concerns about getting reliable information about their 13 nationals, and it says, look, we just want to put a pause on 14 this for a few months while we ensure we have vetting 15 procedures in place that will get us reliable information, and 16 while we do that, we're going to have a waiver process, as part 17 of the visa application process, to still allow people to come 18 into the country. THE COURT: 19 It takes the same countries So even if we accept the notion that that 20 is something that the Government's been thinking about and has 21 reached that conclusion, doesn't McCreary indicate that the 22 issue is which is the primary purpose, that or some religious 23 purpose? 24 25 MR. WALL: Well, yes, Your Honor, but it judges the purpose by looking at an official action -- the resolutions J.A. 720 40 1 passed by the city council, what they put up on the walls of 2 the courthouse, what people did in office. 3 clear on this that where the official action is a facially 4 legitimate and bona fide reason, courts don't look behind it. 5 The law is pretty Here, this order, it doesn't say anything about religion, 6 it doesn't draw any religious distinctions, and the one 7 religious distinction that it did draw in the old order, which 8 was to provide preference for victims of religious persecution 9 the new order removed in response to establishment clause 10 11 concerns. So in McCreary -THE COURT: So has this facially legitimate, bona 12 fide standard been applied in a case involving religion and the 13 establishment clause specifically? 14 MR. WALL: I'm not sure about that, Your Honor. 15 Right off hand, I'd have to confer with my colleagues. 16 been applied in a number of other contexts. 17 was to a federal statute. 18 It's Fiallo, of course, But I think even if you thought that that weren't the 19 standard and you just took McCreary and that body of 20 establishment clause law, even those cases are clear that what 21 you look at is the official act. 22 an explicitly religious message, and the question was just did 23 you have enough surrounding it that you could draw some secular 24 message or understanding from it. 25 And in those cases, you had That's not what we have here at all -- J.A. 721 41 THE COURT: 1 Well, McCreary seems to go beyond where 2 it was before. There's a lot of cases, pre-McCreary and going 3 back Lemon, in which they talk about just finding any purpose. 4 But McCreary seems to indicate the question is whether it was 5 more than -- whether it was a primary/predominant/preeminent 6 purpose. That's the issue. MR. WALL: 7 Oh, I completely agree, Your Honor, but 8 judged as against the official act, you've got to look at the 9 official action and what was the purpose for that. Here, the 10 official action is an order that the President took after 11 consulting with three cabinet-level officials whose motives 12 have not been impugned. THE COURT: 13 But nobody argued -- at least I don't 14 think you're arguing that we just look at the four corners of 15 the document and can't consider any outside information, 16 correct? 17 18 19 MR. WALL: Well, I think you can consider outside information that was official action. THE COURT: For instance -- So McCreary has language which you've 20 cited, but I don't see in there any limitation or any statement 21 that these are, in fact, the only -- it, frankly, was made in 22 passing, I think, by the Court. 23 discussing the question of what can be considered, and here's 24 the list of things that can be considered. 25 It doesn't say we're So what authority is there that's more explicit on that J.A. 722 42 1 point, if any? MR. WALL: 2 Well, I think in the immigration context, 3 Mandel and Fiallo couldn't be more explicit about it. 4 Executive puts forward a facially legitimate and bona fide 5 reason, then that's the end of courts' analysis, with the 6 possible exception of whether you draw some narrow exception 7 under Din, and we can talk about that. But I do want to focus on that on the establishment 8 9 If the clause side, McCreary is the sort of rare case in which, 10 looking at the official action, you would say, all right, we're 11 going to say that the Government's stated purpose is a sham; is 12 not, in fact, secular. 13 religious. Here, this is an order that draws no religious 14 15 But there, the message was explicitly distinctions at all -THE COURT: 16 Well, there are a number of cases they 17 were facially neutral, and there's still an establishment 18 clause problem based on the context, based on the history. 19 So beyond that argument, I think you focussed on the 20 national security issue, which we've talked about a little 21 bit -- 22 MR. WALL: I don't know, Your Honor, that I think 23 that the McCreary line of cases is long, but for that line of 24 cases, there can be a subset in which you've got a religious 25 message that pervades, whatever the Government conduct is or J.A. 723 43 1 that's clearly illustrated by official action that's directly 2 linked to it. 3 I just want to emphasize this case has gone the opposite 4 way from McCreary. 5 down, kept trying to make the same religious message. 6 the President went the opposite direction. 7 establishment clause concerns, and the President said I'm going 8 to take out the one provision that does anything to refer to 9 religion. 10 In McCreary, the city council kept doubling Here, Plaintiffs raised On its face, this does exactly what the previous 11 Administration did with the Visa Waiver Program, right? 12 just applies -- 13 THE COURT: It Well, again, it doesn't do it on 14 nationality. 15 basically, created a higher level of scrutiny for those 16 individuals. 17 It doesn't ban them entirely. MR. WALL: It simply, That's right, it created a higher level of 18 scrutiny, and this does the same for all nationals of the 19 listed countries, without regard to religion. 20 all nationals coming in from these six-listed countries. 21 doesn't draw any distinctions on the basis of religion, not on 22 its face and not in operation. 23 It applies to It I think what the other side hasn't provided is, as you 24 say, some long line of cases where you've got a law that 25 doesn't -- on its face, in its text or in operation -- draw any J.A. 724 44 1 religious distinction. 2 right? 3 Ten Commandment display in McCreary. 4 looks behind it. 5 further. 6 largely, of statements that were made before the President ever 7 took office. There's nothing explicitly religious. This is not the And yet, still, the Court And by the way, you have to go one step They want you to look behind it on the basis, THE COURT: 8 9 It doesn't send a religious message, So hypothetically, if all those statements they're referring to were made after he took office, 10 from the White House, during a press conference or otherwise, 11 would you be saying that there is no establishment clause issue 12 here nonetheless? MR. WALL: 13 I think it would be a much harder case, 14 Your Honor, and I think we would acknowledge that. 15 you don't have -THE COURT: 16 But what So the operative distinction for you is 17 when the statements were made, not that the statements 18 themselves are insufficient to accomplish their aims. MR. WALL: 19 20 distinctions. 21 the line. 22 I think there are two operative You asked the other side where would you draw I'd draw it in two places. One, here, these statements occurred before we had a 23 candidate, who took an oath to support and defend the 24 Constitution, who formed an administration, who consulted with 25 the Attorney General and the Secretaries of State and Homeland J.A. 725 45 1 Security -THE COURT: 2 3 4 Well, he didn't before the first order, correct? MR. WALL: No, that's right, so that was my second 5 fault line, right? 6 right, and rather than fight on the same ground, serially 7 addressed all of the other side's concerns, including the 8 establishment concern, and took out the preference for victims 9 of religious persecution. 10 He took the original order, went back, So I think there are two fault lines. The first is 11 coming into office and the difference between a President and a 12 candidate, right, who swears an oath, who forms an 13 administration and consults with them. 14 not the old order that's before you; it's the new order. 15 And the second is it's And I think the President's statements, even if you 16 consider all of them over time, have been clearer and clearer 17 that what he is concerned about are radical Islamist 18 terrorists, and that's what this order is designed to get at. 19 THE COURT: But the portion that they're challenging 20 now changed only in that Iraq was removed for some specific 21 reasons, and there were some categories that were exempted or 22 subject to waiver, but to some degree it appears that those 23 were all made to address the due process issues. 24 made to address establishment clause concerns. 25 MR. WALL: They weren't Well, Your Honor, I think what addressed J.A. 726 46 1 the establishment clause concern was taking out the only 2 provision of the order that referred to religion. 3 have now are provisions that do not distinguish on the basis of 4 religion. Nationals from these countries -THE COURT: 5 What you But they have an impact, a disparate 6 impact, which is not a legally-cognizable standard, but when it 7 gets into the question of identifying purpose, it's something 8 that one looks at. MR. WALL: 9 But as you recognize, not a 10 legally-cognizable theory under the establishment clause. 11 statements which they try to get at for the purpose part of 12 their establishment clause claim are preelection statements by 13 a candidate Trump, not President Trump. 14 15 16 They're pointing to the history of the order. The This order is different in the way that it functions. And you're right, it does it with respect to the same 17 countries that the previous order did, except for Iraq, because 18 conditions had changed with respect to Iraq just in the last 19 few weeks. 20 singled out by Congress and the previous Administration on what 21 everybody concedes, I think, are religion-neutral grounds, 22 because they were state sponsors of terrorism or countries of 23 concern because ISIL and Al Qaeda operate there heavily. 24 25 But, of course, those were the same countries And so the distinction on which this Administration borrowed from the previous Administration, that distinction J.A. 727 47 1 nobody has claimed was ever drawn on the basis of religion. And so I just think this is a very, very tough context 2 3 with this law, which draws no religious distinctions on its 4 face or in operations, to try to press that claim. 5 some sense they're trying to fight the last battle and not 6 really wanting -- in McCreary and all these cases, it's still 7 what is the law before the Court? 8 What does it do? 9 test. 10 I think in How does that law operate? Here, this order comfortably passes that THE COURT: So a factual question based on what the 11 plaintiffs have asserted. 12 first order has been in effect and still is in effect, at least 13 the portions that weren't enjoined, the State Department and 14 Homeland Security have not started issuing the reports that 15 were required by that. 16 MR. WALL: They assert that even though the Is that correct or not? My understanding is that the internal 17 review and consultation has begun. 18 have been any reports issued. 19 I don't think that there I believe that's right. There are certain portions of the order dealing with 20 suspension of entry that have been enjoined. 21 attempting to enforce those. 22 replaced by the new order when it takes effect. 23 THE COURT: We have not been Those will be revoked and But the reporting requirements were not 24 enjoined, and you're saying they're working on it, but they 25 haven't issued any reports, even though I think the 30-day J.A. 728 48 1 report has already been due. 2 meets deadlines for reports, I understand. MR. WALL: 3 4 Not that the Government always Your Honor, I would have to check on that. I'm not entirely sure what has happened with that provision. THE COURT: 5 Okay. So let me ask about the statutory 6 argument. 7 raised with the plaintiffs, the distinction between an entry 8 and a visa issuance and what does that do here. 9 does appear to some degree that, at a minimum, the practical 10 effect seems to be that visas are either not being issued or 11 their processing has been slowed down. 12 13 14 To some degree I want to address the same issue I Because it First of all, can you tell us, factually, if that's correct? MR. WALL: Well, my understanding is that the State 15 Department is continuing to process visas as it did before, and 16 once the new order takes effect, the question will simply be 17 during the interview -- the visa interview, whether the 18 applicant is eligible for a waiver, and that will all be part 19 of the current process. 20 THE COURT: There's no additional process to it. But will they be denied a visa because 21 they're from this country and they can't get a waiver? 22 they be given a visa and just told, look, you're still going to 23 have to wait before you can actually go to the United States? 24 25 MR. WALL: No. Or will My understanding is that they will be denied a visa if they are a national from the listed country, J.A. 729 49 1 and they don't qualify for a visa during the brief pause that 2 this order places on the process so that we can check to make 3 sure that the vetting procedures are reliable. And so we haven't focussed here on the distinction 4 5 between admission and entry for that reason. 6 focussed on why 1152 doesn't apply for other reasons. 7 applies to the issuance of immigrant visas. 8 of people covered by this order are not seeking immigrant 9 visas. It doesn't apply to procedures. Although we have It only The vast majority That's clearly what 10 this is. 11 by its definition, is a procedural change. 12 It's a temporary pause to reassess procedures, which, And even if you got past all of that, 1182(f) has always 13 been read and treated as a sort of catch-all power under the 14 immigration laws, so that where the President determines that 15 some class not picked up by other immigration provisions is 16 actually -- he needs to suspend entry immediately in the 17 interests of the United States, that's the power that the 18 President has. 19 THE COURT: But isn't that the issue, is that 1182(f) 20 or 212(f) allows the President to bar entry? It doesn't say 21 anything about altering the visa process. 22 different things? 23 reasons or otherwise, you can't come into the country, cannot 24 present for admission at the border to Customs and Border 25 Protection, that issuing visas is not covered by 212(f)? Aren't those two Even if we can say, because of emergency J.A. 730 50 1 MR. WALL: Your Honor, that would be an additional 2 reason why the order would be perfectly lawful. 3 tried to push -- 4 THE COURT: We have not But it would be a reason why the 212(f) 5 authority might not allow the Government to change the visa 6 processes, because the authority just goes to barring entry. 7 MR. WALL: Well, but if the Court said that, I think 8 it's true then -- and issued any emergency relief, I think it's 9 true then we would have to continue to process and issue visas. 10 But then we could physically stop everyone at the border, since 11 entry is the actual physical entry into the country, and we 12 haven't depended on that distinction because we haven't wanted 13 to set up a system in which we're issuing visas to people and 14 then literally stopping them at the border. 15 tried to draw that distinction, but if the Court did, I think 16 that's what would result. 17 THE COURT: So we haven't It would seem to be a chaotic approach. 18 Although perhaps from a timing standpoint, it might help people 19 in that situation get the visa steps out of the way and not 20 delay them in that regard. 21 delayed by a certain period of time. 22 MR. WALL: Because otherwise, they would be But I would point out even then, Your 23 Honor, under 1185(a), the President would still have the power 24 to suspend those visas, because he's got the power to place 25 limitations and exceptions on other provisions in the J.A. 731 51 1 immigration laws. So I think -- THE COURT: 2 When has that been done for that 3 particular step of suspending visas? 4 other reasons, including the Iran hostage crisis situation. MR. WALL: 5 I know it's been used for Your Honor, I don't know that it has, but 6 no court has ever read into 1182(f) any limits on the 7 President's authority to suspend entry into the United States. 8 So if this Court or others went down that road, we would be, I 9 think, in uncharted water. The understanding up to now has 10 always been that the President could detain any -- suspend the 11 entry of any class of aliens when he deemed it in the national 12 interest. 13 And I just want to -- I do want to walk through all the 14 statutory arguments, but I want to be very clear about where 15 they lead. 16 I think on plaintiffs' approach that what they're 17 committed to saying is that if the President got actionable 18 intelligence tomorrow that a Yemeni national, knowing nothing 19 more, were about to bring a bomb into the United States, the 20 President could not temporarily suspend the entry of Yemeni 21 nationals into the United States without violating other 22 provisions of the immigration laws. 23 have ever understood 1182(f). 24 catchall provision for just that sort of circumstance. 25 THE COURT: That is not the way courts They have understood it as a Well, their argument might be that but, J.A. 732 52 1 again, as I read the statute, it focuses on visa issuance, 2 which may or may not -- I mean, that's a technical issue. 3 practical matter, I think you're right; the issue would be 4 whether they could enter under that provision. 5 As a You also cite Section (b), I believe, that indicates 6 there might be some exceptions to the nondiscrimination 7 provisions regarding processing. 8 you have that would closely approximate this situation, 9 indicating that -- I know, for example, the location of an What authority, if any, do 10 office was added as part of that. 11 deemed part of this issue or at least enough that they put it 12 into the statute. 13 But either way, that was But given in that case they had to add that language, do 14 you have any cases or other authority that indicate that this 15 activity of suspending for 90 days would fall safely within 16 that provision? MR. WALL: 17 18 19 I don't know of good cases one way or the other, Your Honor. On the scope of the procedures provision, I'd say two 20 things. 21 talking about taking a temporary three-month pause to assess 22 procedures, that what you're talking about is, by definition, a 23 procedural change. 24 25 One, I think it's pretty clear that where you're And to the extent that it were ambiguous, the President and the Attorney General are entitled to deference in their J.A. 733 53 1 reading of the immigration laws. 2 as you know, in the immigration laws; that the Attorney 3 General's interpretation of these laws is concerning. 4 And indeed, that's codified, So to the extent I think there's doubt about what 5 1152(a)(2) means or (b) means, I think our interpretation ought 6 to prevail both for the deference reason and because their 7 interpretation raises a very serious constitutional question 8 about the scope of the President's constitutional authority to 9 detain people at the border. 10 That's never been an issue before because courts have 11 treated 1182(f) as contiguous with the President's 12 constitutional authority. 13 when he determined it in the national interest. 14 are right, the Courts can look behind that and narrow that 15 authority. 16 question, which is itself a reason not to interpret the statute 17 that way. 18 He can suspend any class of aliens If plaintiffs That's going to raise a serious constitutional THE COURT: But the Justice Department -- or no one 19 has actually yet interpreted that provision formally to say 20 that the delay of three months or delay of any kind is covered 21 by that, as opposed to changing procedures. 22 MR. WALL: 23 THE COURT: 24 25 Well, a couple of things, Your Honor -I suppose they might try to interpret it if it was forced to do so at some point. MR. WALL: We would have to examine that issue. J.A. 734 But 54 1 certainly under 1185(a) and that general power, the Office of 2 Legal Counsel did say that you could have nationality-based 3 restrictions with certain classes of Iranians, and the 4 following year after it was enacted, President Carter did 5 exactly that with Iranian students. 6 7 8 9 And then, obviously, we have the Cuban, Panamanian and Nicaraguan orders under 1182(f). And the Supreme Court statement in Sale that it was perfectly clear, the Supreme Court said, perfectly clear that 10 the President could put up a naval blockade to stop Haitian 11 migrants from coming into this country. 12 13 14 So I think at least the Supreme Court and the Office of Legal Counsel -THE COURT: Wasn't that case dealing with 15 extraterritoriality of the authority, rather than just the 16 basic notion of whether that activity was covered? 17 MR. WALL: I don't think so, Your Honor. It was 18 dealing with an order that prevented unlawful entry by sea. 19 And I grant that the order itself may not have drawn a 20 nationality-based distinction, but it was clearly aimed at the 21 Haitian refugee crisis, and the Supreme Court casting it that 22 way and thinking of it that way said perfectly clear that the 23 President can do this. 24 25 The plaintiffs -- to the extent we want to talk about sort of where the case is, the plaintiffs haven't come forward J.A. 735 55 1 with a single case that reads into 1182(f) any limit with 2 respect to any order that the President has ever put out, 3 provided that it made the national security determination. 4 Once the President puts forward that facially legitimate 5 reason, that it is in the country's national security interest, 6 courts haven't looked behind it, and they haven't narrowed the 7 scope of the President's authority under that statute. 8 would be a really, really serious thing to do. 9 Now, we already talked about 1152. It There is also an 10 argument about the other provisions of 1182(a), and if you want 11 to talk about it, I'd be happy to address it. 12 13 14 THE COURT: But otherwise -- I'm not sure it's really necessary at this point, but I appreciate that. Just in terms of the -- I think you said you were also 15 covering the overall relief at issue or asked for some sort 16 of -- assuming we get this far, which I know is not where you 17 want to go but, hypothetically, the relief that the plaintiffs 18 are seeking some sort of nationwide injunction. 19 there are not just people around the country who have these 20 issues in this Uniform Rule of Naturalization concept, but, in 21 fact, plaintiffs are scattered in different places, what would 22 be -- you asked this to be narrowed only to the individual 23 plaintiffs, and then they ask for the nation. 24 number of options in between. 25 the broad harm, but not nationwide, that you could offer that Given that There are a Is there one that is focussed on J.A. 736 56 1 2 is principled? MR. WALL: Yes. So this is a critically important 3 question, and I just -- if I can lay out a couple things that I 4 don't think the Court should do, and then what I think could be 5 the middle ground, if you will. 6 So the first thing is I don't think the Court should 7 enjoin the entire order because there are provisions of the 8 order that, although they say they're challenging the entire 9 thing, they don't brief them, they don't -- 10 11 12 13 14 THE COURT: No, I understand. There's the assessments, the biometric entry, there's various issues. MR. WALL: Exactly. So we would say not against the entire order. We would say it can't be facial because many of the 15 applications of the challenge provisions, for instance, with 16 respect to aliens abroad, who have no close connection, no 17 family or relative in the United States, we would say those 18 applications are clearly lawful. 19 rights are even arguably implicated. 20 No one's constitutional So we'd say it can't be facial. We'd say it has to be as 21 applied challenges to people who are denied a waiver, and 22 courts can decide those on more developed records. 23 24 25 And we would say it can't be nationwide. It has to be limited to the particular alleged violations here. So I think at the most -- I don't want to help the other J.A. 737 57 1 side craft its TRO, but I think, at the most, the Court could 2 enter a TRO or a preliminary injunction with respect to the 3 particular aliens that the family members here seek to bring 4 over -- that covers the individual plaintiffs -- and the 5 particular refugees who have a close relationship with Iraq or 6 HIAS, who face an imminent risk of injury and who are otherwise 7 eligible for refugee admission. 8 9 Now, again, we don't think any form of emergency relief is necessary because they can't show the harm. But if the 10 Court disagrees with us, the relief has got to be tailored to 11 the plaintiffs here and the violations they're claiming. 12 can't be nationwide, and it can't be facial -- 13 THE COURT: It Doesn't that depend on what the harm is? 14 I mean, the statute is one thing. 15 analysis for the establishment clause? 16 MR. WALL: Would you have a different No, not at all, Your Honor. A facial 17 challenge or a theory that something is wrong in all its 18 applications, and I know that's what their establishment clause 19 claim is, that it's tainted in every root and branch, that's 20 just a legal theory about why something is lawful or unlawful. 21 Article III and rules on equitable relief still require 22 that the relief has got to be tailored to these plaintiffs. 23 Otherwise, if they can get nationwide relief on behalf of 24 plaintiffs who aren't before the Court, it effectively converts 25 it into a class action without all the procedures that are J.A. 738 58 1 2 required, and it shuts off other courts from considering -THE COURT: So do you think the Ninth Circuit's 3 injunction was unlawful? 4 certainly affecting people who weren't in the case and even 5 people who might not have had a good argument for why they 6 should be allowed to enter. 7 MR. WALL: It was due process, but it was We think that the nationwide injunction 8 was certainly too broad, but the circumstances there were a 9 little different, because the old order covered lots of groups 10 that this one doesn't cover. 11 that it shouldn't enter a narrower injunction. 12 not sure how to do that; we're going to send it back to the 13 Executive and let the Executive take a first crack at it. 14 Now we have. And the Ninth Circuit didn't say It said we're We've narrowed the order, and it is now 15 very possible -- and Virginia did something like this. The 16 Western District of Wisconsin did something like this. It's 17 now possible for this Court to enter relief that, as Article 18 III requires, is tailored to the plaintiffs before the Court. 19 The particular refugees that these organizations want to bring 20 in, the particular family members these plaintiffs want to 21 bring in, that's the only thing that could be the subject of 22 equitable relief. 23 THE COURT: So going back to the establishment clause 24 as one perhaps more complicated area for this. It seems most 25 of the time there's an establishment clause violation. J.A. 739 The 59 1 2 remedy might be to remove the offending activity. So given that there's a slew of these Ten Commandment 3 cases, it might say take down the whole display. 4 matter that others -- it doesn't say take it down whenever the 5 plaintiffs come to the courthouse. 6 generally, because it has a pernicious effect generally, 7 because the Government is endorsing this -- regardless of who 8 walks in the door and regardless of whether they actually were 9 part of the lawsuit or not. 10 What is the equivalent here? It doesn't It says just take it down If this is an order that is 11 unconstitutional in that regard, it doesn't necessarily matter 12 then whether the people trying to enter or the family members 13 who are waiting for someone to enter were or were not part of 14 the lawsuit. 15 How is it different from that situation? MR. WALL: So I think the difference, Your Honor, is 16 that in the religious message cases, you're right. 17 to which that particular plaintiff is entitled, not having the 18 Ten Commandments on the courthouse wall, also inures to the 19 benefit of others. 20 The relief But this is a case in which it is possible for the Court 21 and, thus, we would say, constitutionally required for the 22 Court to enter narrower relief. 23 these organizations and individuals are complaining about 24 restrictions on their particular ability to bring other folks 25 into the country. Because these plaintiffs, The Court can address that -- J.A. 740 60 THE COURT: 1 But there are others who have that same 2 issue, who did not file suit. 3 MR. WALL: Well, but they filed suit in other places. 4 If the Court enters a facial nationwide injunction, what it 5 effectively does is it converts it into a class action, and it 6 prevents other courts from addressing the same issues at the 7 same time. 8 9 Now, again, for us, this is all the reason why we ought to be seeing as-applied challenges once the waiver system plays 10 itself out. 11 have an interview in any imminent period. 12 are -- and it's not clear that they're already, but maybe there 13 are one or two. 14 they've been denied a waiver, then they can bring an as-applied 15 challenge, and you've got an actual record to decide it. 16 Many of the plaintiffs here are not in line to And the ones who Once they have the visa interview and we know So I think the kinds of questions you're raising are 17 not -- they shouldn't counsel in favor of broader relief. They 18 should counsel in favor of saying the plaintiffs have run into 19 court too soon. 20 We ought to see if, in fact, these plaintiffs suffer any 21 injury. 22 to because they qualify for a waiver. 23 waiver, then they come, they bring an as-applied challenge, and 24 we can adjudicate it on a record where we actually know what 25 happened. We ought to allow the order to take effect. Some of them, based on their pleadings, are likely not And if they don't get a J.A. 741 61 THE COURT: 1 So you mentioned TRO at one point. 2 mentioned preliminary injunction. 3 You Does the Government have a view on which of those is appropriate here? Because I noticed in the Ninth Circuit they filed a TRO 4 5 at one point, and it was immediately appealed anyway and 6 treated as a preliminary injunction. 7 way or the other? 8 MR. WALL: 9 THE COURT: MR. WALL: 10 So is that the effect one So I think our view would be that if -By either side. -- the Court wants to grant emergency 11 relief, it should grant the temporary restraining order they've 12 asked for, and then we can confer with the other side about 13 whether it should be converted into a preliminary injunction, 14 and then come back to the Court. I mean, they've come in and said we're going to suffer 15 16 harm now; we want a TRO. 17 have shown any imminent, concrete harm coming in the next few 18 weeks. 19 We think that's wrong. None of them But if Your Honor decides otherwise, which would be the 20 premise for any injunctive relief today, than I think today it 21 should be a TRO, and then we'll confer with the other side on 22 whether to convert it to a preliminary junction. 23 THE COURT: But what else is there to do? 24 briefed this. 25 still, we've covered a lot of ground. We've We've argued it on a difficult schedule but, J.A. 742 62 MR. WALL: 1 Your Honor, I have to say I think the 2 plaintiffs don't provide nearly as much detail as they could or 3 should, at least on the individual plaintiffs and also on some 4 of the organizational plaintiffs, where they are in the process 5 and what injuries they face over the next couple of weeks. 6 I say, as far as we can tell, one of the plaintiff's claims is 7 moot. 8 9 As So I think that they're -- again, the burden is on them to supply that, and they haven't. So it ought to cut against 10 emergency relief. 11 it's clear that nothing will change over the next few weeks. 12 But in the event you enter it, I don't think THE COURT: Okay. Thank you. Let me get five 13 minutes with Mr. Garg, and then I'll add five minutes to the 14 plaintiffs' rebuttal. 15 MR. WALL: 16 THE COURT: 17 18 19 20 Thank you, Your Honor. Thank you. ARGUMENT BY MR. GARG FOR THE DEFENDANTS MR. GARG: Good morning, Your Honor. Arjun Garg for the defendants. THE COURT: Good morning. So I think on this issue 21 of the Refugee Act, I think I raised some of the issues that 22 I'm interested in with the plaintiffs, the question of the 23 applicability of the APA. 24 25 So why is it that these actions of suspending refugee security checks, suspending all screening interviews, why J.A. 743 63 1 aren't those actions that can be challenged? MR. GARG: 2 Your Honor, I think plaintiffs' counsel 3 said it himself actually. 4 the President's action. 5 are going on -THE COURT: 6 What they're really challenging is The specific agency activities that But they can be challenging both, and 7 then we could say the challenge to the President is one thing, 8 but there's a different issue we need to analyze. MR. GARG: 9 Your Honor, I don't think you can say 10 that, because they're not saying here's what would be a 11 stronger claim, if they're saying that they're challenging 12 agency activity, what the agencies are doing. 13 well, look, we know there's a 50,000 refugee cap -- we're going 14 to accept that for purposes of this argument -- but you changed 15 our allocation, as a resettlement agency, from 4,000 to 2,000, 16 and that was not the right number to change it; you took our 17 number way down further than you took anyone else's number. 18 That might be a claim where you're really targeting what the 19 agency did. They would say, 20 All they're targeting are the basic implementation 21 actions that any agency would have to do if the President said, 22 okay, we're going to limit this year's refugee flow to 50,000. 23 The words that were said was it's all due to the lowered 24 ceiling. 25 And so what the agencies are doing here are ministerial J.A. 744 64 1 actions that carry out the President's directive. 2 get around the bar on review of Presidential action under the 3 APA by pointing to those ministerial implementing actions. 4 THE COURT: So you can't So suppose the State Department and 5 Homeland Security took the actions for resource reasons. 6 said we don't have enough people because of hiring freezes or 7 otherwise; we're going to reduce or even suspend screening 8 interviews for the rest of the fiscal year. 9 challenge that? 10 11 12 MR. GARG: They Could they Your Honor, I don't believe they could. They haven't pointed to any provision of law that -THE COURT: Well, let's say that they have this 13 argument that that violates the statute itself. 14 worried about the President having done anything; they're just 15 saying the statute says 110. 16 be a good theory, but assuming that's their theory, why would 17 that not be something they could challenge under the APA, that 18 the agencies have violated the statute by taking these actions? 19 MR. GARG: They're not I'm not saying I agree this would Your Honor, first of all, I don't think -- 20 those actions, in themselves, are not final agency action. 21 There's not a consummation of a final process in terms of did 22 an alien who was seeking refugee status actually get denied. 23 There's no final decision. 24 processes are, in the interim, suspended. 25 It's just a later decision because As far as agency action, again, what legal consequences J.A. 745 65 1 are flowing from this? 2 another on a refugee applicant's application. 3 legal consequence to the refugee from this decision that we 4 need to pause our processes for budgetary reasons or whatever 5 it may be? 6 No decision has been made one way or So what is the As to the organizations themselves, they don't point 7 to -- and this gets a little bit to what was being discussed 8 before. 9 guaranteed 4,000 refugees; there was a contract there that I They don't point to any specific entitlement to I was 10 was guaranteed to it. 11 that was never guaranteed. 12 flows from an adjustment of that expectation level where there 13 was never a guarantee. 14 They weren't given an expectation level There's no legal consequence that So I don't think they could claim final agency action, 15 even if you are accepting that there was some legally plausible 16 basis to say that a statute restricted the agency from changing 17 it's processes. 18 THE COURT: So on the merits of the statute itself, I 19 assume one of your arguments is that -- and you've done the 20 brief saying that the statute doesn't prevent a change in the 21 maximum or a lowering of the maximum. 22 change in the -- an increase, absent some procedural steps. 23 It just prevents a Is there some point though where -- I mean, let's say the 24 President said zero this year. Would that violate the Refugee 25 Act in the sense that it goes beyond the concept that there J.A. 746 66 1 needs to be -- that Congress has said we're going to have a 2 program? 3 MR. GARG: Your Honor, I don't believe it would 4 violate the Refugee Act. If the President had a reason where 5 he determined it would be detrimental to the interests of the 6 United States, based on whatever information he's learned, that 7 we cannot have refugee flows this year at all, 1182(f) would 8 authorize that. 9 only cut it by half but not all the way. I don't see that there's any limit that he can I think 1182(f) 10 contemplates whatever the President thinks is necessary to 11 protect the national interest. 12 THE COURT: 13 14 15 Okay. Thank you very much. Let's go back to the plaintiff for ten minutes. REBUTTAL ARGUMENT BY MR. COX FOR THE PLAINTIFFS MR. COX: Thank you, Your Honor. I just wanted to 16 address a handful of issues with regard to standing and 17 irreparable injury. 18 First, with regard to Mr. Harrison, actually, no visa has 19 been issued for him. The record is clear. His application has 20 been approved, but that's a very separate step from a visa 21 being issued. 22 been issued. 23 exception in Section (3)(A) of the next Executive Order, which 24 requires that a visa to have been issued prior to, essentially, 25 12:01 a.m. tomorrow. The record is undisputed that the visa has not And for that reason, he won't qualify for the J.A. 747 67 1 Second, with regard to HIAS, HIAS plainly will be injured 2 by this Executive Order for all the reasons explained in the 3 second Hatfield declaration. 4 Government is putting forward here is actually the same 5 argument that then-Governor of Indiana Mike Pence put forward 6 in the Exodus case that we cited. 7 explained in that opinion and that Your Honor has explored, 8 that argument is simply wrong. 9 And the argument that the And for all the reasons With regards to irreparable injury, of course the 10 definition here is an injury that can't be remedied by any 11 other way. 12 occur at 12:01 a.m. tomorrow, absent an injunction. 13 And in a variety of ways, irreparable injury will So first, of course, we have the establishment clause 14 violation. 15 policy in this country, absent an injunction, condemning Islam, 16 and that can't be remedied, as courts have routinely said, 17 through any other way. 18 At 12:01 a.m. tomorrow, there will be an official It certainly can't be remedied with the sort of narrow 19 injunction that the Government is proposing, where, 20 essentially, you put up a curtain over the statue of the Ten 21 Commandments when the particular plaintiffs walk by, but then 22 you take it down when anyone else is around and the plaintiff 23 is gone -- 24 25 THE COURT: Let me ask the question I asked Mr. Wall regarding the TRO versus the PI. I don't know if the answer is J.A. 748 68 1 different depending on the outcome but, theoretically, it 2 should be similar, in that are we ready for a preliminary 3 injunction or not or ready for a denial of a preliminary 4 injunction or not? 5 straight to that, given that there's been briefing and there 6 have been arguments one way or the other? MR. COX: 7 Is there any reason why we can't go I guess the one thing I would say on that, 8 Your Honor, is that we've covered a lot of ground in the 9 briefing but, of course, there are some issues that, perhaps, 10 if Your Honor thought additional briefing would be necessary, 11 then I think certainly a TRO would be appropriate in that 12 instance. In the Washington case, the reason they converted it to a 13 14 preliminary injunction is because there was no time limit on 15 it. 16 kept it within the confines of the rule, that -- and Your Honor 17 wanted supplemental briefing on additional issues, that it 18 would be appropriate to do a TRO first and then perhaps convert 19 it into a preliminary injunction later. And so in our view, so long as there was a time limit that THE COURT: 20 So supplemental briefing or supplemental 21 argument. Obviously, at that point we would come back. 22 otherwise, you're comfortable one way or the other? 23 MR. COX: 24 THE COURT: 25 But I think so, yes. Perhaps more one way than the other, but you're comfortable. J.A. 749 69 MR. COX: 1 Yes, Your Honor. We would defer to Your 2 Honor's preferences with regards to what the Court would find 3 helpful in that regard. 4 Back to irreparable injury for a moment. The Government 5 points to the possibility of waivers as eliminating irreparable 6 injury. 7 protection or establishment clause injury. 8 held, a discriminatory process that's set up itself inflicts 9 the injury. 10 But of course, that can't eliminate the equal As the case law has If there was, as I mentioned on a call on Friday, a 11 special permitting process for black folks who want to live in 12 a particular neighborhood, you wouldn't say their claims not 13 ripe until after they apply and get denied. 14 being subjected to that process itself is part and parcel with 15 the injury; and, therefore, their claims are ripe even without 16 having to go through that process. 17 You would say that And then with regards to the delay, the Government does 18 not dispute, as a factual matter, that the Executive Order will 19 prolong the times in which our plaintiffs and their families 20 will be separated. 21 that that's not irreparable because they're already separated, 22 which doesn't make a lot of sense in our view, particularly 23 with regards to particular plaintiffs. 24 25 Instead, the Government sort of asserts So Mr. Mohammed, for example, who is from Somalia, his family, his wife and kids, are not here yet. They have refugee J.A. 750 70 1 applications approved, but they don't have travel documents. 2 And in the meantime, his kids are not being educated. 3 not in school, and so they're missing out on vital education. 4 I think that the idea that even an additional couple of weeks 5 delay of separation, in the abstract, is irreparable. 6 can't remedy that with damages. 7 They're You And when so many of the plaintiffs and the organizational 8 plaintiffs' clients are living in dangerous and deplorable 9 conditions, it's particularly irreparable. 10 Any additional delay is irreparable. 11 And with regard to the organizational plaintiffs and 12 their clients, Your Honor, the Government asserts that you 13 can't take into account the irreparable injury to third parties 14 but hasn't actually cited any cases that support that 15 proposition. 16 Again, here the Exodus case is on point, where the 17 irreparable injury was to the Syrian refugee clients, and yet 18 the resettlement agency was the one asserting their rights, and 19 the court found that that injury was irreparable. THE COURT: 20 Let me ask again on this issue -- again, 21 it's all hypothetical, but on this issue of an injunction. 22 understand there's another case in the Ninth Circuit on similar 23 issues. 24 certainly is. 25 I know you're not in that case, but the Government Do you have plaintiffs in the Ninth Circuit? J.A. 751 I could I 71 1 see, one way or the other, if there were conflicting opinions, 2 some confusion if courts go to the breadth of a nationwide 3 injunction in that situation. 4 MR. COX: 5 the Ninth Circuit. 6 plaintiffs both operate in some fashion in the Ninth Circuit 7 and have clients who -- I haven't confirmed this, but just 8 given the pure numbers, it seems possible that they would have 9 clients in the Ninth Circuit as well. So none of our individual plaintiffs are in I believe that our organizational I'm getting confirmation from HIAS and IRAP that they do, 10 11 indeed, have clients that would be within the Ninth Circuit, 12 yes, Your Honor. THE COURT: 13 Let me go back to an issue that Mr. Wall 14 raised, this facially legitimate bona fide standard. 15 that not apply here? MR. COX: 16 17 18 Why does If I would defer to Mr. Jadwat on that issue. THE COURT: Okay. Well, why don't we just switch out 19 just for the last few minutes on that. 20 last main question. 21 22 23 MR. COX: Fair enough. I think that was my Thank you, Your Honor. REBUTTAL ARGUMENT BY MR. JADWAT FOR THE PLAINTIFFS MR. JADWAT: To start there, Your Honor, on the 24 facially legitimate and bona fide question, two main points. 25 First, the Ninth Circuit explained that the origins of J.A. 752 72 1 that test and the situations in which it's been applied are 2 typically situations involving the application of a rule to a 3 particular visa -THE COURT: 4 But not always. Not every case is like 5 that. 6 situation, to the extent you can argue on a different side of 7 it? 8 9 Where is the line between those situations and your MR. JADWAT: Right. I think there's a couple lines. First, there is no case involving an Executive order involving 10 a claim under the establishment clause. 11 on all fours with this case, where the court has applied a 12 facially legitimate and bona fide test. 13 There's no case that's And if you look across the variety of constitutional 14 claims that have been brought with respect to actions in the 15 immigration sphere, sometimes, very occasionally, honestly, 16 it's the facially legitimate and bona fide test. 17 situations, again, as the Ninth Circuit pointed out, it's the 18 standard constitutional analysis that you would apply to that 19 question anywhere else. 20 Many other But the other point that I don't want to lose here is 21 that, ultimately, in our view, it doesn't matter. 22 both at Justice Kennedy's decision in Din, if you look at the 23 case out of the Eastern District of Virginia addressing the 24 first Executive Order, if you look at the Napolitano case out 25 of the Second Circuit, AAR versus Napolitano, or if you look, J.A. 753 If you look 73 1 for that matter, at Abourezk, the case that the Government 2 cites in their brief for a different issue, there is review 3 available under that facially legitimate and bona fide 4 standard, and what they try to read out of the standard is the 5 bona fide part. 6 THE COURT: But on this idea that there may be some 7 constitutional challenges that fall outside of that standard, 8 again, other than saying your case doesn't fall within it, what 9 would be the line that one could draw or the principle one 10 could apply that say what types of cases fall on this side and 11 what types of cases fall on that side? 12 MR. JADWAT: I think here, the question is -- maybe 13 I'll back into the question. 14 that's available at the outset of the case, that takes it out 15 of the sphere of the concerns that animate the facially 16 legitimate and bona fide standard. 17 I think there is evidence here, There's no question here about us delving into what the 18 Government -- what some particular visa issuer might have been 19 thinking, or the reasons why, inside the Government, the 20 Government might have undertaken this action. 21 We're going under the establishment clause based on what 22 a reasonable observer would understand based on the facts that 23 are available to the public. 24 THE COURT: 25 MR. JADWAT: So what's the rule then? So I think the rule would be that the J.A. 754 74 1 facially legitimate and bona fide standard, when it does apply, 2 applies when there are these concerns about reaching through 3 and into and behind government processes in order to raise the 4 claim, but that's not what we're doing here. 5 THE COURT: 6 MR. JADWAT: 7 10 There are a few other points I'd like to raise -THE COURT: 8 9 Okay. We've run out of time now, I think. think we've been going for quite a while. Okay. Well, thank you very much. I'll take the matter under advisement. 11 I appreciate 12 everyone's advocacy, both in the briefs and in the session 13 today. 14 hopefully today, but not necessarily. 15 16 And again, I'll try to issue a written ruling, Is there anything else we should discuss on this case while we're here as a matter of process? 17 Okay, thank you very much. 18 (The hearing concluded at 11:15 a.m.) 19 20 21 22 23 24 25 J.A. 755 I 75 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 I, Cindy S. Davis, Federal Official Court Reporter in and 4 for the United States District Court for the Southern District 5 of Maryland, do hereby certify that I reported, by machine 6 shorthand in my official capacity, the proceedings had in the 7 case of International Refugee Assistance Project, et al., 8 versus Donald J. Trump, et al., case number 8:17-cv-00361-TDC, 9 in said court on March 15, 2017. 10 I further certify that the foregoing 74 pages constitute 11 the official transcript of said proceedings, as taken from my 12 machine shorthand notes to the best of my ability. 13 14 In witness whereof, I have hereto subscribed my name this 16th day of March, 2017. 15 16 17 18 19 20 21 C i n d y S Da v i s . _____________________________________ CINDY S. DAVIS, RPR FEDERAL OFFICIAL COURT REPORTER 22 23 24 25 J.A. 756 INDEX-76 1 1 [3] - 21:11, 30:24, 31:7 110 [1] - 64:15 110,000 [5] - 25:5, 25:12, 25:18, 25:22, 27:6 1152 [2] - 49:6, 55:9 1152(a)(1)(B [1] 19:8 1152(a)(2 [1] - 53:5 1182(a [1] - 55:10 1182(f [7] - 49:12, 49:19, 51:6, 53:11, 55:1, 66:7, 66:9 1182(f) [2] - 51:23, 54:7 1185(a [2] - 50:23, 54:1 11:15 [1] - 74:18 12 [2] - 13:6, 21:15 12:01 [5] - 20:14, 30:18, 66:25, 67:12, 67:14 13 [1] - 23:16 13th [1] - 24:6 14 [1] - 21:17 15 [1] - 75:9 16th [1] - 75:14 18 [1] - 23:17 30th [1] - 24:8 35 [1] - 28:24 4 4,000 [2] - 63:15, 65:9 40 [2] - 28:21, 28:25 400 [1] - 27:13 45 [1] - 21:11 5 5 [1] - 3:3 5(d [2] - 5:22, 25:8 50 [1] - 13:19 50,000 [5] - 5:21, 26:7, 27:15, 63:13, 63:22 53 [1] - 21:17 6 6(d [1] - 25:9 62 [1] - 3:6 66 [1] - 3:7 7 70-plus [1] - 13:15 71 [1] - 3:8 74 [1] - 75:10 2 2 [2] - 23:10, 33:18 2's [2] - 33:22, 33:24 2,000 [1] - 63:15 20 [1] - 3:4 2017 [2] - 75:9, 75:14 202 [9] - 14:11, 14:19, 16:21, 16:25, 17:2, 17:15, 18:12, 19:25, 20:22 202's [1] - 18:10 212 [2] - 17:17, 18:11 212(f [8] - 17:20, 17:23, 18:16, 18:17, 37:24, 49:20, 49:25, 50:4 212(f) [2] - 14:15, 28:15 24 [1] - 23:17 29 [1] - 3:5 3 3 [1] - 21:15 3)(A [1] - 66:23 30 [1] - 5:11 30-day [1] - 47:25 8 8:17-cv-00361-TDC - 75:8 [1] 9 90 [2] - 19:14, 52:15 A a.m [4] - 66:25, 67:12, 67:14, 74:18 AAR [1] - 72:25 ability [5] - 18:16, 18:17, 26:10, 59:24, 75:12 able [5] - 10:14, 32:25, 36:19, 37:7, 38:23 Abourezk [1] - 73:1 abroad [1] - 56:16 absent [4] - 16:14, 65:22, 67:12, 67:15 absolutely [1] 10:18 abstract [1] - 70:5 accept [2] - 39:19, 63:14 accepting [2] 36:16, 65:15 Access [1] - 23:13 accommodate [1] 12:7 accomplish [1] 44:18 account [4] - 10:14, 11:23, 12:14, 70:13 achieve [1] - 7:21 acknowledge [2] 11:11, 44:14 ACLU [4] - 4:8, 4:14, 4:17, 4:21 act [2] - 40:21, 41:8 Act [12] - 20:22, 23:8, 23:9, 23:18, 27:19, 28:11, 28:14, 28:16, 62:21, 65:25, 66:4 action [31] - 10:4, 11:12, 15:5, 15:17, 15:18, 16:1, 17:20, 23:22, 23:25, 24:10, 24:12, 24:13, 25:1, 27:20, 36:23, 36:24, 39:25, 40:3, 41:9, 41:10, 41:18, 42:10, 43:1, 57:25, 60:5, 63:4, 64:2, 64:20, 64:25, 65:14, 73:20 actionable [1] 51:17 actions [14] - 17:16, 19:9, 23:24, 24:21, 28:3, 62:24, 63:1, 63:21, 64:1, 64:3, 64:5, 64:18, 64:20, 72:14 activities [1] - 63:4 activity [5] - 20:2, 52:15, 54:16, 59:1, 63:12 actual [4] - 10:1, 13:22, 50:11, 60:15 add [2] - 52:13, 62:13 added [1] - 52:10 adding [1] - 8:6 addition [5] - 8:11, 8:14, 13:12, 21:21, 38:7 additional [9] - 8:7, 10:21, 48:19, 50:1, 68:10, 68:17, 70:4, 70:9 address [9] - 29:3, 29:8, 29:13, 45:23, 45:24, 48:6, 55:11, 59:25, 66:16 addressed [5] 10:10, 30:1, 30:8, 45:7, 45:25 addressing [3] 29:8, 60:6, 72:23 adhere [1] - 28:10 adjudicate [1] 60:24 adjustment [1] 65:12 administration [4] 9:19, 18:4, 44:24, 45:13 Administration [8] 38:9, 38:17, 39:2, 39:9, 43:11, 46:20, 46:24, 46:25 admission [5] 18:20, 18:22, 49:5, 49:24, 57:7 admissions [2] 24:20, 28:8 admit [1] - 25:5 admitted [1] - 26:11 advance [1] - 31:6 advise [1] - 24:7 advised [1] - 24:17 advisement [1] 74:11 advocacy [1] - 74:12 affected [1] - 33:9 affecting [1] - 58:4 afresh [1] - 12:13 agencies [6] - 24:15, 28:6, 28:9, 63:12, 63:25, 64:18 agency [21] - 19:15, 23:22, 23:25, 24:9, 24:12, 24:13, 24:19, 24:21, 27:20, 28:3, 28:15, 63:4, 63:12, 63:15, 63:19, 63:21, 64:20, 64:25, 65:14, 65:16, 70:18 agency's [1] - 24:22 agents [1] - 14:1 ago [1] - 10:6 agree [4] - 18:20, 31:17, 41:7, 64:15 ahead [2] - 29:17, 36:2 aimed [2] - 7:21, 54:20 aims [1] - 44:18 al [4] - 4:4, 75:7, 75:8 Al [1] - 46:23 alien [2] - 35:4, 64:22 aliens [8] - 30:9, 31:25, 33:9, 37:9, 51:11, 53:12, 56:16, 57:3 alleged [3] - 9:24, 12:16, 56:24 allocation [1] - 63:15 allow [4] - 15:25, 39:17, 50:5, 60:19 allowed [1] - 58:6 allowing [1] - 20:8 allows [2] - 19:25, 49:20 almost [1] - 31:17 alone [1] - 35:6 altering [1] - 49:21 ambiguous [1] 52:24 Amendment [2] 31:19, 31:20 amicus [3] - 9:1, 9:14, 9:17 analysis [6] - 9:15, 11:11, 34:17, 42:5, 57:15, 72:18 analyze [1] - 63:8 animate [1] - 73:15 annual [1] - 28:8 answer [1] - 67:25 anti [1] - 21:12 anti-Muslim [1] 21:12 anyway [1] - 61:5 APA [6] - 23:20, 27:20, 27:25, 62:23, 64:3, 64:17 apparent [1] - 6:6 appealed [1] - 61:5 appear [1] - 48:9 applicability [1] 62:23 applicant [2] - 23:2, 48:18 applicant's [1] - 65:2 applicants [2] 16:14, 17:5 application [9] - 9:3, 15:11, 15:12, 30:13, 34:13, 39:17, 65:2, 66:19, 72:2 applications [5] 26:19, 56:15, 56:18, 57:18, 70:1 applied [8] - 40:12, 40:16, 56:21, 60:9, 60:14, 60:23, 72:1, 72:11 applies [5] - 23:21, 43:12, 43:19, 49:7, 74:2 apply [9] - 27:20, 34:14, 49:6, 49:9, 69:13, 71:15, 72:18, J.A. 757 INDEX-77 73:10, 74:1 appreciate [2] 55:13, 74:11 approach [3] - 8:22, 50:17, 51:16 appropriate [3] 61:3, 68:11, 68:18 approved [4] - 23:14, 33:21, 66:20, 70:1 approximate [1] 52:8 Arabia [1] - 23:11 area [2] - 16:21, 58:24 arguably [2] - 37:25, 56:19 argue [1] - 72:6 argued [2] - 41:13, 61:24 arguing [4] - 12:15, 32:9, 32:11, 41:14 Argument [5] - 3:3, 3:4, 3:6, 3:7, 3:8 ARGUMENT [6] 5:18, 20:10, 29:1, 62:17, 66:14, 71:22 argument [23] - 3:5, 5:20, 9:23, 12:17, 15:2, 19:7, 27:19, 27:24, 28:9, 29:7, 33:12, 36:4, 42:19, 48:6, 51:25, 55:10, 58:5, 63:14, 64:13, 67:3, 67:5, 67:8, 68:21 arguments [4] 31:14, 51:14, 65:19, 68:6 Arjun [2] - 5:3, 62:18 Article [5] - 33:7, 35:19, 37:20, 57:21, 58:17 articulated [1] - 30:5 as-applied [3] - 60:9, 60:14, 60:23 aside [2] - 7:8, 37:2 assert [2] - 23:5, 47:11 asserted [1] - 47:11 asserting [1] - 70:18 asserts [2] - 69:20, 70:12 assess [1] - 52:21 assessments [1] 56:11 Assistance [2] - 4:4, 75:7 associated [2] 11:18, 33:5 assume [2] - 7:9, 65:19 assuming [4] 16:22, 37:3, 55:16, 64:16 attack [1] - 11:18 attempting [1] 47:21 attempts [1] - 26:1 Attorney [3] - 44:25, 52:25, 53:2 attorney [1] - 29:24 audience [2] - 5:8, 6:17 authority [14] 24:10, 27:23, 27:24, 41:25, 50:5, 50:6, 51:7, 52:7, 52:14, 53:8, 53:12, 53:15, 54:15, 55:7 authorize [1] - 66:8 authorized [1] 28:15 authorizes [1] 17:17 available [6] - 6:4, 7:2, 22:16, 73:3, 73:14, 73:23 aware [4] - 17:19, 20:4, 20:13, 26:4 B B) [1] - 19:19 backfill [1] - 11:4 background [1] 19:17 backlog [1] - 33:22 bad [1] - 10:22 ban [20] - 8:17, 12:3, 12:4, 12:5, 12:17, 12:18, 13:4, 13:11, 13:12, 13:23, 14:24, 15:15, 19:15, 19:16, 37:24, 38:1, 38:4, 43:14 banned [3] - 13:14, 13:16, 15:10 banning [4] - 13:3, 13:23, 14:2 bar [4] - 18:7, 18:18, 49:20, 64:2 barring [7] - 13:1, 14:22, 14:23, 14:24, 15:2, 18:5, 50:6 based [13] - 11:13, 22:8, 36:9, 38:5, 42:18, 47:10, 54:2, 54:20, 60:21, 66:6, 73:21, 73:22 basic [2] - 54:16, 63:20 basis [10] - 8:1, 18:6, 38:18, 39:3, 39:10, 43:21, 44:5, 46:3, 47:1, 65:16 battle [1] - 47:5 begin [1] - 5:25 begun [1] - 47:17 behalf [4] - 22:20, 32:5, 35:7, 57:23 behind [7] - 8:12, 40:4, 44:4, 44:5, 53:14, 55:6, 74:3 benefit [1] - 59:19 best [6] - 11:22, 12:8, 20:20, 22:1, 31:4, 75:12 better [1] - 16:15 between [10] - 14:15, 14:17, 15:13, 18:24, 25:13, 45:11, 48:7, 49:5, 55:24, 72:5 beyond [8] - 5:14, 21:20, 31:22, 39:1, 39:9, 41:1, 42:19, 65:25 bill [1] - 6:18 biometric [1] - 56:11 bit [5] - 19:2, 30:22, 37:22, 42:21, 65:7 black [1] - 69:11 blind [2] - 6:6, 6:24 blinded [1] - 7:1 blockade [1] - 54:10 blocking [1] - 18:6 body [1] - 40:19 bomb [1] - 51:19 bona [11] - 40:4, 40:11, 42:4, 71:14, 71:24, 72:12, 72:16, 73:3, 73:5, 73:16, 74:1 booked [2] - 24:8, 26:25 bookings [1] - 27:13 Border [1] - 49:24 border [6] - 18:8, 23:12, 49:24, 50:10, 50:14, 53:9 born [1] - 12:13 borrowed [1] - 46:25 branch [2] - 9:19, 57:19 Branch [3] - 25:16, 26:1, 27:3 breach [2] - 36:22, 36:25 breadth [1] - 71:2 break [1] - 33:12 brief [13] - 9:1, 9:14, 9:17, 12:17, 29:7, 31:11, 33:15, 38:21, 49:1, 56:9, 65:20, 73:2 briefed [2] - 29:11, 61:24 briefing [7] - 20:15, 23:11, 68:5, 68:9, 68:10, 68:17, 68:20 briefs [1] - 74:12 bring [7] - 51:19, 57:3, 58:19, 58:21, 59:24, 60:14, 60:23 broad [2] - 55:25, 58:8 broader [1] - 60:17 brought [1] - 72:14 budgetary [1] - 65:4 burden [1] - 62:8 BY [6] - 5:18, 20:10, 29:1, 62:17, 66:14, 71:22 C cabinet [1] - 41:11 cabinet-level [1] 41:11 candidate [3] 44:23, 45:12, 46:13 cannot [5] - 15:24, 15:25, 18:7, 49:23, 66:7 cap [5] - 25:12, 27:2, 29:10, 29:13, 63:13 capacity [1] - 75:6 cards [1] - 14:23 carry [1] - 64:1 carrying [1] - 28:3 Carter [1] - 54:4 case [46] - 8:6, 8:9, 8:10, 14:16, 14:18, 18:1, 18:3, 20:21, 21:5, 21:7, 22:1, 22:12, 25:7, 26:14, 28:6, 32:8, 34:9, 35:22, 40:12, 42:9, 43:3, 44:13, 52:13, 54:14, 54:25, 55:1, 58:4, 59:20, 67:6, 68:13, 69:7, 70:16, 70:22, 70:23, 72:4, 72:9, 72:10, 72:11, 72:23, 72:24, 73:1, 73:8, 73:14, 74:15, 75:7, 75:8 cases [22] - 6:14, 17:19, 20:1, 21:21, 28:2, 34:11, 40:20, 40:21, 41:2, 42:16, 42:23, 42:24, 43:24, 47:6, 52:14, 52:17, 59:3, 59:16, 70:14, 73:10, 73:11 cast [1] - 7:8 casting [1] - 54:21 catch [1] - 49:13 catch-all [1] - 49:13 catchall [1] - 51:24 categories [1] 45:21 caused [2] - 36:14, 36:20 ceiling [4] - 26:17, 26:20, 27:14, 63:24 Center [4] - 4:11, 4:13, 4:19, 20:12 certain [5] - 23:13, 38:10, 47:19, 50:21, 54:3 certainly [16] - 22:3, 23:5, 23:10, 24:14, 24:21, 24:22, 27:10, 29:7, 37:15, 39:1, 54:1, 58:4, 58:8, 67:18, 68:11, 70:24 CERTIFICATE [1] 75:1 certify [2] - 75:5, 75:10 challenge [11] - 30:5, 35:4, 35:5, 36:24, 56:15, 57:17, 60:15, 60:23, 63:7, 64:9, 64:17 challenged [1] - 63:1 challenges [3] 56:21, 60:9, 73:7 challenging [8] 23:22, 32:19, 32:20, 45:19, 56:8, 63:3, 63:6, 63:11 change [10] - 26:8, 26:12, 27:2, 49:11, 50:5, 52:23, 62:11, 63:16, 65:20, 65:22 changed [6] - 10:14, 25:14, 27:5, 45:20, 46:18, 63:14 changes [1] - 30:16 changing [2] - 53:21, 65:16 chaotic [1] - 50:17 check [2] - 48:3, 49:2 checks [2] - 24:2, 62:25 Cindy [1] - 75:3 CINDY [1] - 75:20 Circuit [13] - 29:21, 30:14, 58:10, 61:4, J.A. 758 INDEX-78 70:22, 70:25, 71:5, 71:6, 71:9, 71:11, 71:25, 72:17, 72:25 Circuit's [2] - 30:1, 58:2 circumstance [2] 31:17, 51:24 circumstances [2] 13:18, 58:8 circumvent [1] - 26:1 circumvention [1] 26:5 cite [3] - 28:2, 34:9, 52:5 cited [4] - 24:11, 41:20, 67:6, 70:14 cites [1] - 73:2 citizen [1] - 22:18 citizens [1] - 12:18 city [2] - 40:1, 43:4 Civil [1] - 4:3 claim [27] - 9:3, 20:24, 20:25, 21:25, 22:2, 22:23, 22:24, 23:15, 31:2, 31:20, 32:23, 32:25, 33:17, 34:5, 35:10, 35:16, 35:17, 35:22, 37:11, 46:12, 47:4, 57:19, 63:11, 63:18, 65:14, 72:10, 74:4 claimed [2] - 32:1, 47:1 claiming [2] - 31:23, 57:11 claims [8] - 5:24, 20:21, 29:6, 32:4, 62:6, 69:12, 69:15, 72:14 clarified [1] - 30:12 clarify [2] - 16:16, 28:24 class [6] - 33:9, 49:15, 51:11, 53:12, 57:25, 60:5 classes [1] - 54:3 clause [30] - 7:8, 18:2, 20:22, 20:23, 29:4, 31:13, 31:24, 32:1, 33:3, 33:10, 37:23, 40:9, 40:13, 40:20, 42:9, 42:18, 43:7, 44:11, 45:24, 46:1, 46:10, 46:12, 57:15, 57:18, 58:23, 58:25, 67:13, 69:7, 72:10, 73:21 clear [21] - 10:18, 10:25, 12:20, 13:8, 14:9, 16:2, 19:13, 23:21, 35:21, 36:9, 38:8, 40:3, 40:20, 51:14, 52:20, 54:9, 54:22, 60:12, 62:11, 66:19 clearer [2] - 45:16 clearly [7] - 8:21, 16:13, 22:23, 43:1, 49:9, 54:20, 56:18 client's [1] - 32:5 clients [15] - 15:10, 21:2, 22:5, 22:15, 25:9, 26:23, 32:25, 35:7, 70:8, 70:12, 70:17, 71:7, 71:9, 71:11 clients' [1] - 22:4 close [2] - 56:16, 57:5 closely [1] - 52:8 codified [2] - 24:16, 53:1 cognizable [7] 34:24, 35:23, 36:12, 37:6, 37:9, 46:6, 46:10 coherent [1] - 12:23 colleague [1] - 19:3 colleagues [1] 40:15 collectively [1] 20:17 combined [1] - 13:10 comfortable [2] 68:22, 68:25 comfortably [1] 47:8 coming [7] - 9:23, 11:19, 22:12, 43:20, 45:11, 54:11, 61:17 Commandment [2] 44:3, 59:2 Commandments [3] - 6:21, 59:18, 67:21 committed [1] 51:17 compares [1] - 17:24 compelling [2] 13:25, 21:6 compilation [1] 14:7 compiled [1] - 8:23 complaining [1] 59:23 complaint [1] - 23:25 complete [1] - 38:1 completely [3] - 8:1, 9:21, 41:7 complicated [1] 58:24 concedes [1] - 46:21 concept [3] - 13:1, 55:20, 65:25 concern [5] - 10:11, 30:14, 45:8, 46:1, 46:23 concerned [1] 45:17 concerning [1] 53:3 concerns [14] - 8:15, 9:5, 29:22, 30:1, 30:3, 30:7, 39:12, 40:10, 43:7, 45:7, 45:24, 73:15, 74:2 conclude [2] - 7:14, 7:17 concluded [1] 74:18 conclusion [3] 16:23, 36:18, 39:21 concrete [2] - 35:19, 61:17 condemnation [2] 21:13, 21:22 condemned [1] 21:19 condemning [1] 67:15 conditions [4] 10:16, 39:11, 46:18, 70:9 conduct [3] - 7:7, 36:14, 42:25 confer [3] - 40:15, 61:12, 61:21 conference [1] 44:10 confines [1] - 68:16 confirmation [1] 71:10 confirmed [1] - 71:7 conflating [1] - 13:8 conflation [1] - 14:9 conflict [1] - 25:2 conflicting [1] - 71:1 confusion [1] - 71:2 Congress [2] 46:20, 66:1 connection [1] 56:16 consequence [2] 65:3, 65:11 consequences [3] 24:22, 26:22, 64:25 consider [5] - 6:9, 7:9, 41:15, 41:17, 45:16 consideration [1] 26:4 considered [4] 6:16, 6:19, 41:23, 41:24 considering [1] 58:1 constant [1] - 22:21 constitute [1] - 75:10 Constitution [2] 18:15, 44:24 constitutional [9] 5:24, 53:7, 53:8, 53:12, 53:15, 56:18, 72:13, 72:18, 73:7 constitutionally [1] 59:21 consular [4] - 32:7, 32:12, 32:16, 35:3 consultation [1] 47:17 consulted [1] - 44:24 consulting [2] 29:24, 41:11 consults [1] - 45:13 consummation [1] 64:21 contemplates [1] 66:10 contention [2] 14:19, 15:9 context [4] - 8:4, 42:2, 42:18, 47:2 contexts [1] - 40:16 contiguous [1] 53:11 continue [1] - 50:9 continues [2] - 7:19, 27:3 continuing [1] 48:15 contract [3] - 36:22, 36:25, 65:9 contrary [2] - 16:7, 28:7 convert [2] - 61:22, 68:18 converted [3] 23:14, 61:13, 68:13 converts [2] - 57:24, 60:5 corners [1] - 41:14 correct [7] - 35:10, 37:23, 38:2, 41:16, 45:3, 47:15, 48:13 council [2] - 40:1, 43:4 counsel [6] - 4:7, 5:8, 30:24, 60:17, 60:18, 63:2 Counsel [2] - 54:2, 54:13 count [1] - 24:9 counter [1] - 27:24 countries [24] - 8:25, 9:4, 9:6, 12:19, 13:16, 14:25, 15:20, 16:9, 16:14, 17:5, 23:7, 38:11, 38:13, 38:15, 38:19, 38:22, 39:3, 39:10, 43:19, 43:20, 46:4, 46:17, 46:19, 46:22 country [21] - 8:17, 9:21, 11:20, 11:22, 25:25, 33:18, 37:24, 38:1, 39:4, 39:5, 39:18, 48:21, 48:25, 49:23, 50:11, 54:11, 55:19, 59:25, 67:15 country's [1] - 55:5 couple [12] - 31:1, 33:25, 34:4, 37:1, 37:14, 37:16, 38:4, 53:22, 56:3, 62:5, 70:4, 72:8 course [15] - 13:21, 18:14, 21:20, 23:1, 31:8, 31:20, 31:25, 32:22, 37:18, 40:16, 46:19, 67:9, 67:13, 68:9, 69:6 COURT [122] - 4:22, 5:7, 5:23, 6:8, 7:9, 7:24, 8:19, 9:6, 9:9, 9:13, 9:18, 10:3, 10:20, 11:9, 12:15, 12:24, 13:25, 14:10, 14:13, 15:1, 15:5, 15:17, 15:23, 16:4, 16:20, 17:1, 17:7, 17:10, 17:19, 17:22, 18:5, 18:20, 19:2, 19:5, 20:1, 20:6, 20:19, 21:4, 21:25, 22:7, 22:11, 23:2, 23:8, 23:18, 24:3, 24:9, 24:25, 25:15, 26:5, 27:1, 27:18, 28:18, 28:20, 29:15, 29:20, 30:3, 31:13, 32:9, 32:19, 34:8, 34:20, 35:9, 35:12, 35:15, 35:24, 36:13, 37:4, 37:22, 38:14, 39:19, 40:11, 41:1, 41:13, 41:19, 42:16, 43:13, 44:8, 44:16, 45:2, 45:19, 46:5, 47:10, 47:23, 48:5, 48:20, 49:19, 50:4, 50:17, 51:2, 51:25, J.A. 759 INDEX-79 53:18, 53:23, 54:14, 55:12, 56:10, 57:13, 58:2, 58:23, 60:1, 61:1, 61:9, 61:23, 62:12, 62:16, 62:20, 63:6, 64:4, 64:12, 65:18, 66:12, 67:24, 68:20, 68:24, 70:20, 71:13, 71:18, 72:4, 73:6, 73:24, 74:5, 74:8, 75:21 court [8] - 13:14, 17:19, 31:21, 51:6, 60:19, 70:19, 72:11, 75:9 Court [40] - 4:3, 5:25, 6:5, 6:8, 6:16, 6:19, 6:24, 7:7, 8:5, 12:6, 29:8, 31:4, 34:11, 37:17, 41:22, 44:3, 47:7, 50:7, 50:15, 51:8, 54:8, 54:9, 54:12, 54:21, 56:4, 56:6, 57:1, 57:10, 57:24, 58:17, 58:18, 59:20, 59:22, 59:25, 60:4, 61:10, 61:14, 69:2, 75:3, 75:4 Court's [3] - 6:15, 12:8, 26:2 courthouse [3] 40:2, 59:5, 59:18 COURTROOM [1] 4:2 courts [12] - 7:22, 34:17, 34:23, 40:4, 51:22, 53:10, 55:6, 56:22, 58:1, 60:6, 67:16, 71:2 Courts [6] - 6:22, 7:12, 31:16, 31:18, 33:6, 53:14 courts' [1] - 42:5 cover [1] - 58:10 covered [10] - 31:12, 32:12, 33:16, 49:8, 49:25, 53:20, 54:16, 58:9, 61:25, 68:8 covering [1] - 55:15 covers [3] - 30:8, 30:9, 57:4 Cox [6] - 3:4, 3:7, 4:10, 5:20, 20:7, 20:11 COX [27] - 4:10, 20:10, 20:11, 20:23, 21:9, 22:2, 22:10, 22:14, 23:4, 23:9, 23:24, 24:5, 24:11, 25:7, 25:20, 26:13, 27:7, 28:1, 28:19, 66:14, 66:15, 68:7, 68:23, 69:1, 71:4, 71:16, 71:21 crack [1] - 58:13 craft [1] - 57:1 created [3] - 12:22, 43:15, 43:17 credible [2] - 11:15, 11:17 crime [1] - 22:22 crisis [2] - 51:4, 54:21 criteria [1] - 9:5 critically [1] - 56:2 criticized [1] - 39:6 Cuban [2] - 38:4, 54:6 current [2] - 25:8, 48:19 curtain [1] - 67:20 Customs [1] - 49:24 cut [2] - 62:9, 66:9 cuts [1] - 23:15 D dab [1] - 32:16 damages [1] - 70:6 danger [3] - 13:9, 13:10 dangerous [2] 13:1, 70:8 Daniel [2] - 4:14, 5:5 David [1] - 4:20 Davis [1] - 75:3 DAVIS [1] - 75:20 days [3] - 19:14, 31:1, 52:15 deadlines [1] - 48:2 deal [1] - 7:22 dealing [3] - 47:19, 54:14, 54:18 decide [3] - 37:17, 56:22, 60:15 decides [2] - 19:16, 61:19 deciding [1] - 16:12 decision [9] - 15:11, 19:23, 24:23, 64:23, 65:1, 65:3, 72:22 decision-making [1] - 24:23 decisions [1] - 24:4 declaration [3] 21:11, 21:16, 67:3 decrease [1] - 26:11 deemed [2] - 51:11, 52:11 defend [1] - 44:23 Defendant [1] - 5:6 Defendants [2] - 3:5, 3:6 DEFENDANTS [2] 29:1, 62:17 defendants [3] - 5:4, 5:6, 62:19 defendants' [1] 36:14 defer [4] - 7:12, 29:18, 69:1, 71:16 deference [2] 52:25, 53:6 define [1] - 34:13 defined [2] - 18:22, 20:2 definition [3] - 49:11, 52:22, 67:10 degree [5] - 7:12, 37:11, 45:22, 48:6, 48:9 degrees [1] - 35:7 delay [8] - 21:24, 32:15, 50:20, 53:20, 69:17, 70:5, 70:10 delayed [1] - 50:21 delegated [1] - 28:6 delving [1] - 73:17 demonstrate [4] 31:11, 31:22, 35:18, 35:19 demonstrates [1] 18:3 denial [4] - 22:25, 32:15, 33:3, 68:3 denied [7] - 33:1, 48:20, 48:25, 56:21, 60:14, 64:22, 69:13 deny [1] - 17:5 Department [12] 5:1, 5:4, 8:23, 19:22, 24:1, 24:6, 24:14, 24:18, 47:13, 48:15, 53:18, 64:4 depended [1] - 50:12 deplorable [1] - 70:8 deprivation [1] 22:25 DEPUTY [1] - 4:2 designed [1] - 45:18 despite [1] - 30:15 detail [1] - 62:2 detain [2] - 51:10, 53:9 determination [2] 32:20, 55:3 determine [1] - 38:24 determined [2] 53:13, 66:5 determines [2] - 9:19, 49:14 detrimental [1] 66:5 developed [1] 56:22 DHS [3] - 8:19, 8:20, 33:20 difference [5] 14:15, 14:16, 14:17, 45:11, 59:15 different [20] - 10:15, 15:25, 16:10, 18:8, 18:21, 20:18, 26:2, 27:11, 32:14, 38:20, 46:15, 49:22, 55:21, 57:14, 58:9, 59:14, 63:8, 68:1, 72:6, 73:2 differently [1] - 23:6 difficult [1] - 61:24 dilute [1] - 8:8 Din [2] - 42:7, 72:22 dire [1] - 22:20 Direct [1] - 23:13 direction [1] - 43:6 directive [3] - 24:4, 24:14, 64:1 directly [3] - 29:25, 33:8, 43:1 disagree [1] - 6:10 disagrees [1] - 57:10 discriminates [1] 33:6 discriminatory [2] 17:24, 69:8 discuss [1] - 74:15 discussed [1] - 65:7 discussing [1] 41:23 disfavor [1] - 6:3 disfavoring [1] 32:11 disparate [1] - 46:5 display [5] - 6:21, 8:7, 8:9, 44:3, 59:3 displays [1] - 8:10 disproportionate [1] - 13:21 dispute [3] - 10:25, 15:13, 69:18 disputes [1] - 6:3 disruptive [1] - 25:21 distinction [11] 39:10, 40:7, 44:1, 44:16, 46:24, 46:25, 48:7, 49:4, 50:12, 50:15, 54:20 distinctions [8] 18:23, 38:5, 38:6, 40:6, 42:15, 43:21, 44:20, 47:3 distinguish [1] - 46:3 District [4] - 58:16, 72:23, 75:4 dividing [1] - 5:20 divorce [2] - 8:9, 8:12 doctrinally [1] 22:14 doctrine [2] - 32:7, 35:3 document [3] 17:11, 33:20, 41:15 documents [2] 24:3, 70:1 Doe [8] - 21:10, 21:15, 23:9, 30:24, 31:7, 33:18, 33:22, 33:24 Donald [2] - 4:4, 75:8 done [8] - 8:6, 16:9, 24:24, 37:25, 39:2, 51:2, 64:14, 65:19 door [2] - 16:8, 59:8 doubling [1] - 43:4 doubt [1] - 53:4 down [12] - 18:25, 25:17, 27:9, 33:12, 43:5, 48:11, 51:8, 59:3, 59:4, 59:5, 63:17, 67:22 draw [10] - 40:6, 40:7, 40:23, 42:6, 43:21, 43:25, 44:20, 44:21, 50:15, 73:9 drawn [2] - 47:1, 54:19 draws [2] - 42:14, 47:3 drew [2] - 38:4, 38:6 driving [1] - 21:12 dual [2] - 38:14, 38:16 due [7] - 27:14, 30:3, 30:5, 45:23, 48:1, 58:3, 63:23 during [6] - 6:17, 31:11, 33:15, 44:10, 48:17, 49:1 E e-mail [2] - 27:13, 27:15 e-mailed [1] - 24:7 e-mails [1] - 24:5 easier [1] - 35:22 easiest [1] - 21:7 Eastern [1] - 72:23 educated [1] - 70:2 education [1] - 70:3 J.A. 760 INDEX-80 Edwin [1] - 4:25 effect [21] - 7:22, 11:5, 13:12, 13:15, 15:20, 16:18, 17:14, 18:10, 20:14, 21:23, 26:9, 30:18, 31:6, 47:12, 47:22, 48:10, 48:16, 59:6, 60:19, 61:6 effectively [6] - 27:2, 28:5, 28:13, 34:14, 57:24, 60:5 effectuate [2] - 13:4, 24:3 effectuating [1] 14:24 effort [1] - 8:5 either [6] - 11:9, 17:24, 34:2, 48:10, 52:10, 61:9 elected [2] - 12:2, 12:3 eligible [3] - 31:9, 48:18, 57:7 eliminate [1] - 69:6 eliminating [1] - 69:5 embassy [1] - 16:10 emergency [7] 30:19, 37:20, 49:22, 50:8, 57:8, 61:10, 62:10 emphasize [1] - 43:3 enacted [1] - 54:4 encompassed [1] 19:19 end [6] - 5:25, 9:24, 20:5, 26:11, 28:12, 42:5 endorsing [1] - 59:7 enforce [1] - 47:21 enjoin [4] - 25:15, 27:1, 32:22, 56:7 enjoined [4] - 17:6, 47:13, 47:20, 47:24 enjoining [4] - 17:10, 17:11, 17:13, 26:9 ensuing [1] - 13:16 ensure [2] - 38:22, 39:14 enter [12] - 13:20, 33:22, 37:14, 52:4, 57:2, 58:6, 58:11, 58:17, 59:12, 59:13, 59:22, 62:10 enters [1] - 60:4 entire [5] - 27:17, 32:22, 56:7, 56:8, 56:13 entirely [2] - 43:14, 48:4 entitled [3] - 16:22, 52:25, 59:17 entitlement [1] - 65:8 entry [21] - 14:14, 14:21, 14:22, 14:23, 15:25, 18:7, 18:20, 18:21, 47:20, 48:7, 49:5, 49:16, 49:20, 50:6, 50:11, 51:7, 51:11, 51:20, 54:18, 56:11 equal [7] - 5:15, 20:9, 20:24, 22:24, 22:25, 23:1, 69:6 equitable [2] - 57:21, 58:22 equivalent [1] 59:10 especially [1] - 19:24 essentially [3] 28:9, 66:24, 67:20 established [1] 32:11 establishment [31] 7:8, 18:1, 20:21, 20:23, 29:4, 31:13, 31:24, 32:1, 33:2, 33:10, 37:23, 40:9, 40:13, 40:20, 42:8, 42:17, 43:7, 44:11, 45:8, 45:24, 46:1, 46:10, 46:12, 57:15, 57:18, 58:23, 58:25, 67:13, 69:7, 72:10, 73:21 establishmentclause [1] - 33:10 Esther [1] - 4:18 et [4] - 4:4, 75:7, 75:8 evaluate [1] - 10:23 event [5] - 10:4, 10:7, 29:13, 33:12, 62:10 evidence [4] - 6:4, 6:6, 10:25, 73:13 exact [1] - 9:23 exactly [10] - 6:7, 14:20, 23:21, 25:2, 26:9, 29:24, 39:5, 43:10, 54:5, 56:12 examine [1] - 53:25 examining [1] - 8:22 example [11] - 6:16, 21:1, 21:10, 24:2, 24:5, 24:6, 24:17, 26:17, 35:4, 52:9, 69:24 except [3] - 16:18, 16:19, 46:17 exception [3] - 42:6, 66:23 exceptions [2] 50:25, 52:6 executive [1] - 9:19 Executive [34] - 6:2, 7:10, 7:24, 7:25, 14:14, 15:1, 15:7, 15:23, 17:11, 17:14, 20:13, 20:15, 21:12, 21:19, 21:23, 25:8, 25:10, 25:13, 25:16, 25:21, 26:1, 26:24, 27:3, 27:22, 29:22, 36:15, 42:4, 58:13, 66:23, 67:2, 69:18, 72:9, 72:24 exempted [1] - 45:21 Exodus [2] - 67:6, 70:16 expectation [3] 26:24, 65:10, 65:12 explain [4] - 10:8, 13:18, 20:15, 20:19 explained [4] 23:11, 67:2, 67:7, 71:25 explicit [2] - 41:25, 42:3 explicitly [3] - 40:22, 42:12, 44:2 explored [1] - 67:7 expressed [2] 21:18, 28:4 extend [2] - 19:2, 19:15 extent [10] - 5:13, 5:20, 29:5, 32:3, 34:18, 36:23, 52:24, 53:4, 54:24, 72:6 extra [1] - 20:8 extraterritoriality [1] - 54:15 extreme [1] - 18:4 eye [1] - 6:6 F face [7] - 34:3, 43:10, 43:22, 43:25, 47:4, 57:6, 62:5 faced [2] - 12:5, 12:6 facial [5] - 56:14, 56:20, 57:12, 57:16, 60:4 facially [12] - 40:3, 40:11, 42:4, 42:17, 55:4, 71:14, 71:24, 72:12, 72:16, 73:3, 73:15, 74:1 facing [1] - 37:15 fact [21] - 11:2, 11:6, 13:20, 14:18, 16:7, 16:17, 22:8, 26:14, 26:20, 26:24, 27:7, 27:12, 28:6, 30:17, 31:15, 37:2, 37:23, 41:21, 42:12, 55:21, 60:20 facts [3] - 16:4, 31:4, 73:22 factual [4] - 13:21, 39:5, 47:10, 69:18 factually [1] - 48:12 fail [1] - 11:7 fair [1] - 71:21 faith [1] - 10:22 fall [8] - 19:9, 34:22, 34:25, 52:15, 73:7, 73:8, 73:10, 73:11 false [1] - 7:16 families [2] - 21:24, 69:19 family [9] - 22:8, 23:11, 23:16, 32:25, 56:17, 57:3, 58:20, 59:12, 69:25 far [9] - 17:8, 30:25, 33:2, 33:20, 34:6, 34:11, 55:16, 62:6, 64:25 fashion [1] - 71:6 fault [2] - 45:5, 45:10 faulty [1] - 9:2 favor [3] - 7:16, 60:17, 60:18 features [1] - 8:7 Federal [1] - 75:3 federal [1] - 40:17 FEDERAL [1] - 75:21 few [7] - 7:22, 39:14, 46:19, 61:17, 62:11, 71:19, 74:6 fewer [2] - 36:8 Fiallo [2] - 40:16, 42:3 fiance [3] - 30:25, 34:5, 34:7 fide [11] - 40:4, 40:12, 42:4, 71:14, 71:24, 72:12, 72:16, 73:3, 73:5, 73:16, 74:1 fight [2] - 45:6, 47:5 figure [2] - 12:8, 34:23 file [1] - 60:2 filed [3] - 5:10, 60:3, 61:4 filing [1] - 23:12 fill [1] - 8:6 final [11] - 23:22, 23:25, 24:9, 24:12, 24:13, 24:21, 24:23, 64:20, 64:21, 64:23, 65:14 financial [2] - 36:10, 36:11 First [2] - 31:19, 31:20 first [20] - 5:16, 8:10, 8:12, 8:13, 18:18, 19:12, 33:10, 45:2, 45:10, 47:12, 48:12, 56:6, 58:13, 64:19, 66:18, 67:13, 68:18, 71:25, 72:9, 72:24 fiscal [2] - 25:25, 64:8 five [5] - 5:13, 19:1, 28:20, 62:12, 62:13 flag [2] - 14:3, 18:25 flow [3] - 24:22, 31:19, 63:22 flowing [1] - 65:1 flows [4] - 27:21, 37:6, 65:12, 66:7 focus [2] - 12:18, 42:8 focuses [1] - 52:1 focussed [4] - 42:19, 49:4, 49:6, 55:24 folks [2] - 59:24, 69:11 follow [1] - 28:10 following [2] - 11:25, 54:4 footnote [2] - 13:6, 14:8 FOR [6] - 5:18, 20:10, 29:1, 62:17, 66:14, 71:22 forced [1] - 53:24 foreclosed [1] 35:17 foregoing [1] - 75:10 forever [2] - 19:10, 19:13 form [3] - 21:1, 36:2, 57:8 formally [1] - 53:19 formed [1] - 44:24 forms [1] - 45:12 forward [9] - 10:12, 12:3, 12:10, 31:3, 42:4, 54:25, 55:4, 67:4, 67:5 four [1] - 41:14 fours [1] - 72:11 frame [1] - 35:16 frankly [2] - 33:25, J.A. 761 INDEX-81 41:21 freezes [1] - 64:6 freezing [1] - 15:15 Friday [1] - 69:10 full [1] - 25:9 functions [1] - 46:15 funding [1] - 36:7 funds [1] - 36:8 FY17 [1] - 27:14 G GARG [8] - 5:3, 62:17, 62:18, 63:2, 63:9, 64:10, 64:19, 66:3 Garg [6] - 3:6, 5:3, 29:10, 29:13, 62:13, 62:18 gate [1] - 18:19 Gelernt [1] - 4:16 GELERNT [1] - 4:16 general [3] - 29:24, 32:12, 54:1 General [2] - 44:25, 52:25 General's [1] - 53:3 generally [4] - 7:12, 31:16, 59:6 given [9] - 6:20, 19:24, 48:22, 52:13, 55:18, 59:2, 65:10, 68:5, 71:8 globally [1] - 27:14 Government [39] 6:3, 6:9, 7:10, 7:13, 7:20, 7:24, 10:12, 12:21, 16:6, 18:7, 18:16, 18:17, 19:7, 20:9, 27:19, 28:21, 28:23, 28:24, 32:11, 36:4, 36:19, 36:20, 39:6, 42:25, 48:1, 50:5, 59:7, 61:2, 67:4, 67:19, 69:4, 69:17, 69:20, 70:12, 70:23, 73:1, 73:18, 73:19, 73:20 government [2] 6:20, 74:3 Government's [8] 6:13, 7:14, 8:15, 8:16, 15:9, 23:19, 39:20, 42:11 governments [1] 38:22 Governor [1] - 67:5 grant [4] - 35:21, 54:19, 61:10, 61:11 granted [1] - 39:8 grave [1] - 30:17 great [1] - 35:4 greater [1] - 9:5 green [1] - 14:23 ground [7] - 10:16, 11:10, 27:17, 45:6, 56:5, 61:25, 68:8 grounds [2] - 18:13, 46:21 group [1] - 11:19 groups [1] - 58:9 guarantee [1] - 65:13 guaranteed [3] 65:9, 65:10, 65:11 guess [4] - 27:1, 35:24, 36:13, 68:7 H Haitian [2] - 54:10, 54:21 half [2] - 10:6, 66:9 halfway [1] - 14:4 halt [1] - 27:17 hand [1] - 40:15 handful [1] - 66:16 handle [1] - 5:20 hands [1] - 10:11 happy [2] - 20:4, 55:11 harassment [1] 22:21 harder [1] - 44:13 harm [19] - 29:3, 30:17, 31:10, 31:14, 31:16, 31:22, 32:24, 33:3, 36:6, 37:6, 37:9, 37:13, 37:16, 55:25, 57:9, 57:13, 61:16, 61:17 harmed [2] - 36:1, 36:23 harms [6] - 5:21, 30:20, 31:15, 31:19, 32:14, 37:2 Harrison [3] - 22:17, 30:24, 66:18 Harrison's [2] 30:25, 34:5 Hatfield [1] - 67:3 havens [1] - 9:11 hear [3] - 5:16, 28:23, 29:5 hearing [5] - 4:6, 6:17, 20:5, 36:17, 74:18 heavily [1] - 46:23 held [2] - 33:6, 69:8 help [2] - 50:18, 56:25 helpful [1] - 69:3 hereby [1] - 75:5 hereto [1] - 75:13 HIAS [6] - 22:15, 35:25, 57:6, 67:1, 71:10 higher [2] - 43:15, 43:17 himself [1] - 63:3 hindrance [1] - 32:6 hiring [1] - 64:6 history [3] - 12:14, 42:18, 46:14 hit [3] - 25:12, 25:22, 25:23 Homeland [5] 27:21, 29:25, 44:25, 47:14, 64:5 homosexuality [1] 22:22 honestly [1] - 72:15 Honor [61] - 4:8, 4:12, 4:16, 4:18, 4:20, 4:23, 4:25, 5:3, 5:19, 5:25, 14:3, 18:25, 19:12, 20:11, 20:13, 22:2, 22:10, 25:7, 26:13, 27:8, 28:1, 28:19, 29:2, 29:5, 29:21, 30:6, 38:3, 39:24, 40:14, 41:7, 42:22, 44:14, 45:25, 48:3, 50:1, 50:23, 51:5, 52:18, 53:22, 54:17, 57:16, 59:15, 61:19, 62:1, 62:15, 62:18, 63:2, 63:9, 64:10, 64:19, 66:3, 66:15, 67:7, 68:8, 68:10, 68:16, 69:1, 70:12, 71:12, 71:21, 71:23 Honor's [1] - 69:2 hopefully [1] - 74:14 hostage [1] - 51:4 House [2] - 7:21, 44:10 hypothetical [1] 70:21 hypothetically [2] 44:8, 55:17 I I-130 [4] - 22:6, 23:12, 23:14, 33:20 idea [5] - 8:24, 13:3, 33:23, 70:4, 73:6 identified [3] - 12:25, 23:19, 23:25 identifies [1] - 6:9 identify [2] - 4:7, 20:19 identifying [2] - 13:1, 46:7 ignores [1] - 8:16 ignoring [1] - 28:16 III [5] - 33:7, 35:20, 37:20, 57:21, 58:18 illustrated [1] - 43:1 immediate [3] 30:19, 31:22, 33:14 immediately [2] 49:16, 61:5 immigrant [4] 14:14, 22:12, 49:7, 49:8 Immigration [4] 4:10, 4:13, 4:19, 20:12 immigration [11] 18:2, 22:16, 36:12, 42:2, 49:14, 49:15, 51:1, 51:22, 53:1, 53:2, 72:15 imminent [7] - 31:10, 33:14, 34:3, 37:16, 57:6, 60:11, 61:17 impact [2] - 46:5, 46:6 impacted [1] - 12:16 impending [1] 35:19 imperfectly [1] - 12:4 implement [1] 15:21 implementation [1] 63:20 implementing [2] 17:4, 64:3 implicate [1] - 20:3 implicated [1] 56:19 implication [1] - 16:2 important [2] - 8:14, 56:2 impose [1] - 11:23 impression [1] - 25:4 improper [2] - 11:1, 11:25 impugned [1] - 41:12 INA [8] - 8:19, 14:11, 16:21, 18:22, 20:22, 21:25, 22:2 inadmissibility [1] 18:13 including [3] - 21:2, 45:7, 51:4 increase [2] - 26:10, 65:22 increased [1] - 8:25 indeed [2] - 53:1, 71:11 indefinitely [1] 19:15 Indiana [1] - 67:5 indicate [5] - 16:5, 31:16, 39:21, 41:4, 52:14 indicated [3] - 14:1, 26:15, 35:25 indicates [3] - 15:6, 27:12, 52:5 indicating [1] - 52:9 individual [10] 20:20, 21:10, 22:17, 30:23, 32:20, 38:1, 55:22, 57:4, 62:3, 71:4 individuals [7] 21:18, 21:21, 25:24, 26:16, 27:14, 43:16, 59:23 inflict [1] - 20:16 inflicted [1] - 21:13 inflicts [1] - 69:8 information [10] 7:1, 8:23, 10:21, 10:24, 38:23, 39:12, 39:15, 41:15, 41:18, 66:6 injunction [20] 5:10, 25:8, 55:18, 57:2, 58:3, 58:7, 58:11, 60:4, 61:2, 61:6, 61:13, 67:12, 67:15, 67:19, 68:3, 68:4, 68:14, 68:19, 70:21, 71:3 injunctive [1] - 61:20 injured [1] - 67:1 injuries [2] - 20:16, 62:5 injury [28] - 21:13, 21:21, 21:22, 22:25, 31:23, 33:7, 33:15, 34:3, 34:10, 35:19, 35:20, 35:23, 36:21, 37:11, 57:6, 60:21, 66:17, 67:9, 67:10, 67:11, 69:4, 69:6, 69:7, 69:9, 69:15, 70:13, 70:17, 70:19 inquiry [1] - 7:7 inside [1] - 73:19 instance [3] - 41:18, 56:15, 68:12 instead [3] - 6:5, 8:22, 69:20 insufficient [1] - J.A. 762 INDEX-82 44:18 intelligence [1] 51:18 interest [7] - 34:10, 34:24, 34:25, 51:12, 53:13, 55:5, 66:11 interested [1] - 62:22 interests [3] - 21:2, 49:17, 66:5 Interfaith [2] - 9:1, 9:15 interim [1] - 64:24 internal [1] - 47:16 International [2] 4:3, 75:7 interpret [2] - 53:16, 53:23 interpretation [3] 53:3, 53:5, 53:7 interpreted [1] 53:19 interview [8] - 30:13, 31:8, 31:9, 48:17, 60:11, 60:13 interviews [2] 62:25, 64:8 introduces [1] - 12:4 inures [1] - 59:18 invalid [3] - 27:3, 28:14, 36:24 invocation [1] - 8:15 involving [5] - 18:1, 40:12, 72:2, 72:9 Iran [3] - 22:19, 22:22, 51:4 Iranian [1] - 54:5 Iranians [1] - 54:3 IRAP [3] - 21:1, 22:15, 71:10 IRAP's [1] - 22:4 Iraq [4] - 45:20, 46:17, 46:18, 57:5 irreparable [16] 31:16, 31:22, 33:15, 37:16, 66:17, 67:9, 67:11, 69:4, 69:5, 69:21, 70:5, 70:9, 70:10, 70:13, 70:17, 70:19 ISIL [1] - 46:23 Islam [1] - 67:15 Islamic [1] - 11:21 Islamist [1] - 45:17 issuance [18] 14:13, 14:14, 14:24, 15:2, 15:15, 16:17, 16:22, 16:23, 17:14, 18:6, 18:11, 18:13, 19:18, 19:21, 31:15, 48:8, 49:7, 52:1 issuances [1] 19:10 issue [37] - 8:9, 8:10, 14:11, 14:20, 15:19, 15:24, 16:13, 17:3, 17:8, 27:21, 29:14, 33:8, 34:8, 35:1, 36:22, 39:22, 41:6, 42:20, 44:11, 48:6, 49:19, 50:9, 52:2, 52:3, 52:11, 53:10, 53:25, 55:15, 60:2, 62:20, 63:8, 70:20, 70:21, 71:13, 71:17, 73:2, 74:13 issued [16] - 15:6, 16:1, 17:12, 31:1, 31:5, 32:10, 34:7, 47:18, 47:25, 48:10, 50:8, 66:19, 66:21, 66:22, 66:24 issuer [1] - 73:18 issues [17] - 7:13, 9:12, 10:3, 23:19, 23:20, 29:4, 29:19, 34:18, 45:23, 55:20, 56:11, 60:6, 62:21, 66:16, 68:9, 68:17, 70:23 issuing [3] - 47:14, 49:25, 50:13 itself [14] - 6:19, 7:20, 10:15, 28:14, 31:23, 33:3, 53:16, 54:19, 60:10, 64:13, 65:18, 69:8, 69:14 J Jadwat [5] - 3:3, 3:8, 4:8, 5:17, 71:16 JADWAT [42] - 4:8, 5:18, 5:19, 5:24, 6:11, 7:17, 8:3, 8:20, 9:7, 9:10, 9:14, 10:1, 10:7, 10:23, 11:15, 12:20, 13:5, 14:3, 14:12, 14:17, 15:4, 15:8, 15:21, 16:2, 16:11, 16:25, 17:2, 17:9, 17:13, 17:21, 17:23, 18:9, 18:23, 19:4, 19:12, 20:4, 71:22, 71:23, 72:8, 73:12, 73:25, 74:6 Jane [4] - 23:9, 33:18, 33:21, 33:24 Jeffrey [2] - 4:23, 29:2 John [4] - 21:10, 21:15, 30:24, 31:7 joint [2] - 21:11, 21:17 judged [1] - 41:8 judges [1] - 39:24 judgment [4] - 10:13, 11:13, 38:18, 38:20 judicial [1] - 33:4 junction [1] - 61:22 jurisprudence [1] 6:15 Justice [5] - 5:1, 5:4, 5:6, 53:18, 72:22 justifications [1] 11:3 Justin [2] - 4:10, 20:11 K K-1 [2] - 22:19, 34:6 K1 [1] - 31:5 Karen [1] - 4:12 keep [1] - 20:8 keeping [1] - 7:6 Kennedy's [1] 72:22 kept [3] - 43:4, 43:5, 68:16 kids [2] - 69:25, 70:2 kind [8] - 10:11, 11:4, 33:7, 37:6, 37:13, 37:16, 39:5, 53:20 kinds [1] - 60:16 KNEEDLER [1] 4:25 Kneedler [1] - 5:1 knock [1] - 18:3 knowing [1] - 51:18 L lack [1] - 17:25 lacking [1] - 34:2 Lakumi [1] - 6:16 language [3] - 8:11, 41:19, 52:13 largely [1] - 44:6 last [6] - 27:18, 31:1, 46:18, 47:5, 71:19, 71:20 law [11] - 10:15, 35:1, 36:18, 40:2, 40:20, 43:24, 47:3, 47:7, 64:11, 69:7 Law [4] - 4:11, 4:13, 4:19, 20:12 lawful [4] - 30:8, 50:2, 56:18, 57:20 laws [8] - 18:2, 36:12, 49:14, 51:1, 51:22, 53:1, 53:2, 53:3 lawsuit [2] - 59:9, 59:14 lay [2] - 39:5, 56:3 lead [2] - 8:24, 51:15 learned [1] - 66:6 least [10] - 7:12, 9:4, 17:13, 30:4, 34:9, 41:13, 47:12, 52:11, 54:12, 62:3 Lee [1] - 4:16 Legal [2] - 54:2, 54:13 legal [5] - 24:21, 57:20, 64:25, 65:3, 65:11 legally [9] - 34:10, 34:24, 35:22, 36:11, 37:6, 37:9, 46:6, 46:10, 65:15 legally-cognizable [2] - 46:6, 46:10 legitimate [12] 27:9, 40:4, 40:11, 42:4, 55:4, 71:14, 71:24, 72:12, 72:16, 73:3, 73:16, 74:1 Lemon [3] - 5:25, 6:1, 41:3 less [2] - 36:9, 36:15 level [6] - 24:21, 41:11, 43:15, 43:17, 65:10, 65:12 lifted [1] - 19:16 likelihood [1] - 35:13 likely [1] - 60:21 limit [17] - 5:22, 6:8, 6:10, 6:11, 9:18, 18:15, 18:17, 20:2, 28:8, 28:12, 28:17, 55:1, 63:22, 66:8, 68:14, 68:15 limitation [1] - 41:20 limitations [1] 50:25 limited [2] - 27:13, 56:24 limiting [1] - 26:15 limits [1] - 51:6 line [10] - 34:21, 34:22, 42:23, 43:24, 44:21, 45:5, 60:10, 72:5, 73:9 lines [2] - 45:10, 72:8 linked [1] - 43:2 list [1] - 41:24 listed [5] - 38:13, 38:19, 43:19, 43:20, 48:25 literally [2] - 19:21, 50:14 litigate [1] - 29:23 litigation [1] - 37:18 live [1] - 69:11 living [1] - 70:8 located [1] - 30:9 location [1] - 52:9 logistical/ operational [1] - 27:9 look [22] - 6:16, 6:19, 11:7, 12:13, 13:12, 14:7, 36:2, 38:10, 39:13, 40:4, 40:21, 41:8, 41:14, 44:5, 48:22, 53:14, 63:13, 72:13, 72:21, 72:22, 72:24, 72:25 looked [1] - 55:6 looking [8] - 16:7, 16:21, 22:12, 25:6, 33:2, 34:18, 39:25, 42:10 looks [2] - 44:4, 46:8 lose [1] - 72:20 loss [2] - 36:10, 36:11 lost [1] - 36:2 lowered [4] - 24:20, 26:17, 26:20, 63:23 lowering [1] - 65:21 Lujan [1] - 34:9 M MACH [1] - 4:14 Mach [1] - 4:14 machine [2] - 75:5, 75:12 mail [2] - 27:13, 27:15 mailed [1] - 24:7 mails [1] - 24:5 main [2] - 71:20, 71:24 majority [1] - 49:7 mandate [1] - 28:5 Mandel [1] - 42:3 manner [1] - 18:17 March [4] - 24:6, 24:8, 75:9, 75:14 mark [1] - 25:22 Maryland [2] - 4:21, 75:5 matter [23] - 4:2, 9:24, 9:25, 10:1, 10:2, 15:3, 20:24, 25:18, 25:20, 26:14, 26:21, J.A. 763 INDEX-83 27:8, 33:11, 36:1, 37:23, 52:3, 59:4, 59:11, 69:18, 72:21, 73:1, 74:11, 74:16 matters [1] - 22:14 maximum [5] - 26:7, 26:12, 27:6, 65:21 McCreary [19] - 5:25, 6:7, 6:14, 6:19, 8:5, 10:10, 39:21, 40:10, 40:19, 41:1, 41:2, 41:4, 41:19, 42:9, 42:23, 43:4, 44:3, 47:6 mean [11] - 9:10, 18:9, 18:21, 24:23, 26:6, 33:17, 34:20, 52:2, 57:14, 61:15, 65:23 means [2] - 53:5 meant [1] - 34:25 meantime [1] - 70:2 meat [1] - 19:24 meets [1] - 48:2 member [1] - 22:8 members [5] - 6:17, 32:25, 57:3, 58:20, 59:12 memo [1] - 24:4 memorandum [1] 24:11 mentioned [3] - 61:1, 61:2, 69:10 merits [10] - 21:5, 24:25, 29:4, 30:21, 34:15, 34:17, 34:19, 34:21, 35:14, 65:18 message [7] - 40:22, 40:24, 42:12, 42:25, 43:5, 44:1, 59:16 Meteab [1] - 21:17 methodology [1] 9:3 middle [1] - 56:5 might [14] - 8:24, 19:9, 29:16, 50:5, 50:18, 51:25, 52:6, 53:23, 58:5, 59:1, 59:3, 63:18, 73:18, 73:20 migrants [1] - 54:11 migration [1] - 26:15 Mike [1] - 67:5 mind [1] - 13:9 minimum [1] - 48:9 ministerial [2] 63:25, 64:3 minutes [11] - 5:12, 5:13, 19:1, 20:8, 28:20, 28:21, 28:24, 62:13, 66:13, 71:19 missing [1] - 70:3 modifying [1] - 19:11 Mohammed [1] 69:24 moment [6] - 14:5, 14:6, 36:17, 37:4, 37:5, 69:4 Monday [1] - 24:6 money [3] - 36:1, 36:3, 36:16 month [2] - 10:6, 52:21 months [3] - 23:17, 39:14, 53:20 moot [2] - 31:2, 62:7 morning [15] - 4:12, 4:14, 4:16, 4:18, 4:20, 4:22, 4:23, 4:25, 5:3, 5:5, 5:7, 20:14, 30:18, 62:18, 62:20 most [7] - 13:25, 21:6, 35:21, 37:25, 56:25, 57:1, 58:24 motion [3] - 5:9, 29:12, 29:15 motives [1] - 41:11 move [3] - 12:9, 20:7, 30:20 MR [135] - 4:8, 4:10, 4:14, 4:16, 4:20, 4:23, 4:25, 5:3, 5:5, 5:18, 5:19, 5:24, 6:11, 7:17, 8:3, 8:20, 9:7, 9:10, 9:14, 10:1, 10:7, 10:23, 11:15, 12:20, 13:5, 14:3, 14:12, 14:17, 15:4, 15:8, 15:21, 16:2, 16:11, 16:25, 17:2, 17:9, 17:13, 17:21, 17:23, 18:9, 18:23, 19:4, 19:12, 20:4, 20:10, 20:11, 20:23, 21:9, 22:2, 22:10, 22:14, 23:4, 23:9, 23:24, 24:5, 24:11, 25:7, 25:20, 26:13, 27:7, 28:1, 28:19, 29:1, 29:2, 29:18, 29:21, 30:6, 31:18, 32:14, 32:21, 34:16, 34:22, 35:11, 35:13, 35:18, 36:5, 37:1, 37:5, 38:3, 38:16, 39:24, 40:14, 41:7, 41:17, 42:2, 42:22, 43:17, 44:13, 44:19, 45:4, 45:25, 46:9, 47:16, 48:3, 48:14, 48:24, 50:1, 50:7, 50:22, 51:5, 52:17, 53:22, 53:25, 54:17, 56:2, 56:12, 57:16, 58:7, 59:15, 60:3, 61:8, 61:10, 62:1, 62:15, 62:17, 62:18, 63:2, 63:9, 64:10, 64:19, 66:3, 66:14, 66:15, 68:7, 68:23, 69:1, 71:4, 71:16, 71:21, 71:22, 71:23, 72:8, 73:12, 73:25, 74:6 MS [2] - 4:12, 4:18 Muslim [8] - 9:4, 11:20, 12:5, 12:17, 13:4, 13:11, 13:20, 21:12 Muslims [9] - 6:3, 12:3, 12:4, 12:5, 13:8, 13:9, 13:23, 14:2, 32:12 N name [1] - 75:13 Napolitano [2] 72:24, 72:25 narrow [4] - 29:23, 42:6, 53:14, 67:18 narrowed [3] - 55:6, 55:22, 58:14 narrower [2] - 58:11, 59:22 nation [1] - 55:23 national [20] - 7:11, 7:13, 7:15, 8:11, 8:15, 8:18, 9:17, 10:3, 11:2, 11:13, 12:9, 42:20, 48:25, 51:11, 51:18, 53:13, 55:3, 55:5, 66:11 National [4] - 4:10, 4:13, 4:19, 20:12 nationality [5] - 38:5, 38:7, 43:14, 54:2, 54:20 nationality-based [3] - 38:5, 54:2, 54:20 nationals [10] 38:10, 38:12, 38:14, 38:16, 38:24, 39:13, 43:18, 43:20, 46:4, 51:21 nationwide [8] 55:18, 55:25, 56:23, 57:12, 57:23, 58:7, 60:4, 71:2 Naturalization [1] 55:20 nature [2] - 10:2, 17:25 naval [1] - 54:10 nearly [1] - 62:2 necessarily [4] 11:24, 18:24, 59:11, 74:14 necessary [5] 36:18, 55:12, 57:9, 66:10, 68:10 need [16] - 5:14, 7:14, 7:17, 7:25, 8:3, 8:4, 9:20, 10:22, 10:23, 21:5, 33:14, 35:15, 37:14, 63:8, 65:4 needed [1] - 10:8 needing [1] - 34:10 needs [3] - 37:17, 49:16, 66:1 negates [1] - 10:24 neighborhood [1] 69:12 neutral [2] - 42:17, 46:21 never [5] - 6:3, 36:25, 53:10, 65:11, 65:13 new [11] - 11:3, 12:13, 14:24, 24:1, 24:20, 30:1, 39:4, 40:9, 45:14, 47:22, 48:16 next [8] - 33:25, 34:4, 37:14, 37:16, 61:17, 62:5, 62:11, 66:23 Nicaraguan [1] 54:7 Nicaraguans [1] 38:6 Ninth [14] - 29:21, 30:1, 30:14, 58:2, 58:10, 61:4, 70:22, 70:25, 71:5, 71:6, 71:9, 71:11, 71:25, 72:17 nobody [2] - 41:13, 47:1 non [1] - 9:4 non-Muslim [1] - 9:4 nondiscrimination [1] - 52:6 none [2] - 61:16, 71:4 nonetheless [2] 25:23, 44:12 nonreviewability [4] - 32:8, 32:13, 32:17, 35:3 normal [1] - 37:18 note [1] - 8:14 notes [1] - 75:12 nothing [5] - 17:7, 24:24, 44:2, 51:18, 62:11 noticed [1] - 61:4 notion [2] - 39:19, 54:16 Number [4] - 4:3, 21:11, 21:15, 23:10 number [10] - 26:11, 26:16, 30:7, 40:16, 42:16, 55:24, 63:16, 63:17, 75:8 numbers [1] - 71:8 O oath [2] - 44:23, 45:12 objective [1] - 6:13 observer [4] - 6:12, 10:14, 12:12, 73:22 obviously [6] 20:13, 29:11, 31:3, 35:17, 54:6, 68:21 occasionally [1] 72:15 occasions [1] - 38:2 occur [1] - 67:12 occurred [1] - 44:22 OF [1] - 75:1 offending [1] - 59:1 offer [1] - 55:25 offered [3] - 10:21, 10:22, 11:3 Office [2] - 54:1, 54:12 office [6] - 16:9, 40:2, 44:7, 44:9, 45:11, 52:10 official [15] - 6:20, 7:21, 24:7, 39:25, 40:3, 40:21, 41:8, 41:9, 41:10, 41:18, 42:10, 43:1, 67:14, 75:6, 75:11 OFFICIAL [2] - 75:1, 75:21 Official [1] - 75:3 officials [3] - 9:17, 11:13, 41:11 old [3] - 40:7, 45:14, 58:9 Omar [1] - 4:8 once [4] - 48:16, 55:4, 60:9, 60:13 one [52] - 11:3, 11:17, 12:22, 13:10, J.A. 764 INDEX-84 13:23, 14:1, 20:25, 21:5, 21:6, 21:7, 21:9, 23:7, 23:20, 25:9, 25:15, 27:18, 31:14, 32:15, 33:1, 34:9, 35:16, 36:5, 37:11, 38:1, 40:6, 43:8, 44:4, 46:8, 52:17, 52:20, 53:18, 55:24, 57:14, 58:10, 58:24, 60:13, 61:1, 61:5, 61:6, 62:6, 63:7, 65:1, 65:19, 68:6, 68:7, 68:22, 68:24, 70:18, 71:1, 73:9 One [1] - 44:22 one's [1] - 56:18 ones [2] - 30:4, 60:11 operate [4] - 33:24, 46:23, 47:7, 71:6 operates [1] - 15:15 operation [2] 43:22, 43:25 operations [1] - 47:4 operative [2] - 44:16, 44:19 opinion [1] - 67:7 opinions [1] - 71:1 opposed [2] - 22:12, 53:21 opposite [2] - 43:3, 43:6 options [1] - 55:24 order [90] - 4:5, 5:10, 7:11, 7:16, 7:18, 7:19, 8:11, 8:12, 8:13, 9:2, 10:2, 10:9, 10:15, 11:3, 11:4, 11:5, 11:10, 12:13, 12:21, 14:21, 16:3, 16:18, 16:20, 16:24, 17:2, 17:4, 17:7, 18:5, 18:7, 18:18, 23:15, 25:4, 26:2, 26:6, 26:8, 27:4, 28:4, 28:13, 29:9, 29:22, 30:1, 30:7, 30:16, 30:18, 31:2, 31:6, 32:22, 33:1, 33:24, 34:7, 35:20, 39:4, 39:7, 39:8, 40:5, 40:7, 40:9, 41:10, 42:14, 45:2, 45:5, 45:14, 45:18, 46:2, 46:14, 46:17, 47:8, 47:12, 47:19, 47:22, 48:16, 49:2, 49:8, 50:2, 54:18, 54:19, 55:2, 56:7, 56:8, 56:13, 58:9, 58:14, 59:10, 60:19, 61:11, 72:9, 74:3 Order [24] - 6:2, 7:10, 7:25, 14:14, 15:1, 15:7, 15:23, 17:11, 17:14, 20:13, 20:15, 21:12, 21:19, 21:23, 25:8, 25:14, 26:24, 27:22, 36:15, 66:23, 67:2, 69:18, 72:24 ordered [1] - 28:13 Orders [2] - 25:10, 25:21 orders [2] - 13:14, 54:7 ordinary [1] - 19:20 organization [2] 11:21, 11:22 organizational [8] 20:20, 22:3, 35:6, 35:21, 62:4, 70:7, 70:11, 71:5 organizations [6] 9:15, 32:4, 32:23, 58:19, 59:23, 65:6 original [7] - 7:18, 7:19, 11:5, 29:22, 39:7, 45:5 origins [1] - 71:25 otherwise [10] 28:13, 44:10, 49:23, 50:20, 55:11, 57:6, 57:23, 61:19, 64:7, 68:22 ought [5] - 53:5, 60:8, 60:19, 60:20, 62:9 outcome [1] - 68:1 outer [1] - 20:1 outline [1] - 9:5 outright [1] - 19:10 outset [1] - 73:14 outside [3] - 41:15, 41:17, 73:7 overall [1] - 55:15 overlap [2] - 34:16, 34:19 overreached [1] 17:20 overrule [2] - 8:2, 8:3 own [5] - 8:16, 9:2, 11:8, 12:7, 13:7 P pace [2] - 27:5, 27:10 page [1] - 21:11 pages [1] - 75:10 Panamanian [1] - 54:6 Panamanians [1] 38:5 paragraph [2] 21:15, 21:17 parcel [1] - 69:14 part [15] - 13:11, 15:12, 19:25, 30:6, 30:12, 31:8, 39:16, 46:11, 48:18, 52:10, 52:11, 59:9, 59:13, 69:14, 73:5 particular [22] - 9:21, 11:19, 11:20, 11:22, 23:7, 24:19, 26:16, 27:5, 32:10, 51:3, 56:24, 57:3, 57:5, 58:19, 58:20, 59:17, 59:24, 67:21, 69:12, 69:23, 72:3, 73:18 particularly [2] 69:22, 70:9 parties [2] - 15:14, 70:13 partner [2] - 22:18, 22:20 party [3] - 21:1, 22:4, 35:5 passed [1] - 40:1 passes [1] - 47:8 passing [2] - 35:5, 41:22 past [1] - 49:12 pastor [1] - 6:20 pause [6] - 38:21, 39:13, 49:1, 49:10, 52:21, 65:4 Pence [1] - 67:5 pending [4] - 4:2, 5:22, 22:6, 23:13 people [24] - 11:19, 13:13, 13:15, 13:17, 14:22, 14:23, 14:25, 15:19, 16:19, 18:19, 32:3, 33:9, 39:17, 40:2, 49:8, 50:13, 50:18, 53:9, 55:19, 56:21, 58:4, 58:5, 59:12, 64:6 per [2] - 27:14, 36:7 percent [2] - 13:15, 13:19 perfectly [4] - 50:2, 54:9, 54:22 perhaps [11] - 13:18, 16:22, 25:22, 35:16, 36:16, 36:17, 50:18, 58:24, 68:9, 68:18, 68:24 period [4] - 31:11, 33:15, 50:21, 60:11 permanent [1] - 30:8 permitting [1] 69:11 pernicious [1] - 59:6 persecution [4] 22:21, 30:11, 40:8, 45:9 person [6] - 6:23, 7:1, 10:13, 26:7, 33:8, 34:4 perspective [2] 12:9, 21:8 pervades [1] - 42:25 petition [4] - 23:5, 23:12, 23:14, 33:20 petitioning [3] 22:19, 23:7 petitions [1] - 22:6 Philippines [2] - 9:7, 9:9 physical [1] - 50:11 physically [1] - 50:10 PI [4] - 5:22, 29:12, 31:21, 67:25 picked [1] - 49:15 place [3] - 33:10, 39:15, 50:24 places [4] - 44:21, 49:2, 55:21, 60:3 plainly [1] - 67:1 plaintiff [7] - 5:12, 21:6, 22:1, 33:13, 59:17, 66:13, 67:22 plaintiff's [1] - 62:6 PLAINTIFFS [4] 5:18, 20:10, 66:14, 71:22 Plaintiffs [5] - 3:3, 3:4, 3:7, 3:8, 43:6 plaintiffs [57] - 4:9, 4:11, 4:13, 4:15, 4:17, 4:19, 4:21, 5:11, 5:16, 20:12, 20:16, 20:20, 20:25, 21:10, 22:3, 28:22, 30:14, 30:17, 30:23, 31:3, 31:11, 32:6, 32:23, 35:6, 35:21, 39:6, 47:11, 48:7, 53:13, 54:24, 54:25, 55:17, 55:21, 55:23, 57:4, 57:11, 57:22, 57:24, 58:18, 58:20, 59:5, 59:22, 60:10, 60:18, 60:20, 62:2, 62:3, 62:4, 62:22, 67:21, 69:19, 69:23, 70:7, 70:11, 70:25, 71:4, 71:6 plaintiffs' [5] - 36:16, 51:16, 62:14, 63:2, 70:8 plan [5] - 12:3, 12:4, 12:10, 16:3, 20:7 plausible [2] - 34:1, 65:15 plays [1] - 60:9 pleadings [2] 36:10, 60:21 point [27] - 10:8, 16:6, 16:12, 17:15, 18:10, 19:17, 24:23, 25:11, 25:13, 25:17, 25:21, 28:25, 33:16, 33:17, 33:19, 42:1, 50:22, 53:24, 55:13, 61:1, 61:5, 65:6, 65:8, 65:23, 68:21, 70:16, 72:20 pointed [3] - 13:13, 64:11, 72:17 pointing [3] - 32:15, 46:14, 64:3 points [5] - 9:1, 19:12, 69:5, 71:24, 74:6 policy [3] - 32:19, 33:5, 67:15 political [1] - 39:11 population [2] 13:22, 26:14 portion [1] - 45:19 portions [2] - 47:13, 47:19 position [1] - 16:16 possibility [1] - 69:5 possible [5] - 42:6, 58:15, 58:17, 59:20, 71:8 possibly [1] - 34:4 potential [1] - 23:19 power [5] - 49:13, 49:17, 50:23, 50:24, 54:1 practical [9] - 15:3, 25:20, 26:3, 26:13, 26:21, 27:8, 35:25, 48:9, 52:3 pre [1] - 41:2 pre-McCreary [1] 41:2 precluded [1] - 33:4 preelection [1] 46:12 preference [3] 30:11, 40:8, 45:8 preferences [1] 69:2 preliminary [10] 5:10, 57:2, 61:2, 61:6, J.A. 765 INDEX-85 61:13, 61:22, 68:2, 68:3, 68:14, 68:19 premise [1] - 61:20 prepared [1] - 8:21 present [4] - 9:4, 18:7, 38:24, 49:24 President [41] - 7:3, 12:2, 12:22, 12:25, 13:2, 13:13, 14:1, 14:8, 25:5, 26:7, 27:25, 28:5, 28:12, 29:23, 30:16, 39:4, 41:10, 43:6, 43:7, 44:6, 45:11, 46:13, 49:14, 49:18, 49:20, 50:23, 51:10, 51:17, 51:20, 52:24, 54:4, 54:10, 54:23, 55:2, 55:4, 63:7, 63:21, 64:14, 65:24, 66:4, 66:10 president [1] - 17:20 President's [13] 9:22, 11:12, 13:7, 15:23, 26:10, 28:4, 45:15, 51:7, 53:8, 53:11, 55:7, 63:4, 64:1 Presidential [1] 64:2 press [4] - 24:12, 24:13, 44:10, 47:4 presume [1] - 6:25 presumed [1] - 31:17 pretty [2] - 40:2, 52:20 prevail [1] - 53:6 prevent [4] - 14:20, 16:23, 25:16, 65:20 prevented [1] - 54:18 prevents [2] - 60:6, 65:21 previous [8] - 24:17, 38:9, 39:1, 39:9, 43:10, 46:17, 46:20, 46:25 previously [2] - 8:23, 25:23 primarily [1] - 12:18 primary [2] - 6:2, 39:22 primary/ predominant/ preeminent [1] - 41:5 principle [1] - 73:9 principled [1] - 56:1 PRM [1] - 26:14 probative [1] - 6:12 problem [5] - 35:2, 35:20, 37:20, 37:21, 42:18 problems [2] - 33:11, 37:19 procedural [4] 19:19, 49:11, 52:23, 65:22 procedure [4] - 5:11, 19:22, 25:19, 28:7 procedures [11] 19:11, 19:20, 26:8, 39:15, 49:3, 49:9, 49:10, 52:19, 52:22, 53:21, 57:25 proceed [1] - 21:4 proceedings [2] 75:6, 75:11 process [33] - 15:12, 16:11, 24:16, 24:23, 25:18, 27:17, 28:10, 28:11, 28:16, 30:3, 30:5, 30:12, 30:13, 33:22, 36:8, 39:16, 39:17, 45:23, 48:15, 48:19, 49:2, 49:21, 50:9, 58:3, 62:4, 64:21, 69:8, 69:11, 69:14, 69:16, 74:16 processed [3] - 15:7, 16:6, 27:5 processes [6] - 26:8, 50:6, 64:24, 65:4, 65:17, 74:3 processing [6] 24:2, 25:17, 26:18, 26:19, 48:11, 52:7 proclamation [1] 17:23 Program [5] - 23:13, 38:12, 38:13, 38:15, 43:11 program [1] - 66:2 prohibits [1] - 17:16 Project [2] - 4:4, 75:7 prolong [1] - 69:19 prong [1] - 6:1 proper [1] - 28:16 proposing [1] 67:19 proposition [2] 28:2, 70:15 prosecution [1] 22:22 protect [2] - 8:1, 66:11 protected [2] 34:10, 35:1 Protection [1] 49:25 protection [4] 20:24, 22:24, 22:25, 69:7 provide [4] - 14:7, 38:23, 40:8, 62:2 provided [4] - 7:11, 11:11, 43:23, 55:3 providing [1] - 39:7 provision [11] - 19:9, 19:14, 43:8, 46:2, 48:4, 51:24, 52:4, 52:16, 52:19, 53:19, 64:11 provisions [11] 12:16, 18:12, 19:25, 46:3, 49:15, 50:25, 51:22, 52:7, 55:10, 56:7, 56:15 proxy [1] - 14:2 psychological [1] 21:20 public [3] - 7:1, 8:1, 73:23 publicly [1] - 6:4 pure [2] - 17:2, 71:8 purpose [26] - 4:5, 6:1, 6:2, 6:5, 6:13, 7:14, 7:15, 7:18, 7:25, 8:8, 8:12, 8:18, 8:21, 11:1, 11:25, 12:23, 39:22, 39:23, 39:25, 41:3, 41:6, 41:9, 42:11, 46:7, 46:11 purposes [3] - 34:25, 35:11, 63:14 pursuant [1] - 28:4 push [1] - 50:3 put [9] - 12:21, 29:11, 39:13, 40:1, 52:11, 54:10, 55:2, 67:5, 67:20 puts [2] - 42:4, 55:4 putting [1] - 67:4 Q Qaeda [1] - 46:23 qualify [4] - 38:13, 49:1, 60:22, 66:22 questions [4] - 5:21, 9:11, 14:10, 60:16 quickly [1] - 20:5 quite [1] - 74:9 quote [1] - 24:7 R radical [1] - 45:17 raise [6] - 32:5, 34:8, 35:6, 53:15, 74:3, 74:7 raised [5] - 31:13, 43:6, 48:7, 62:21, 71:14 raises [1] - 53:7 raising [3] - 32:3, 32:6, 60:16 rare [1] - 42:9 rather [4] - 29:23, 37:17, 45:6, 54:15 rationale [1] - 7:11 reached [1] - 39:21 reaching [1] - 74:2 reactions [1] - 6:17 read [8] - 15:24, 18:11, 27:12, 29:12, 49:13, 51:6, 52:1, 73:4 readily [1] - 7:2 reading [1] - 53:1 reads [1] - 55:1 ready [2] - 68:2, 68:3 real [5] - 6:14, 6:22, 26:22, 35:2 real-world [1] - 26:22 really [9] - 12:11, 16:16, 19:18, 47:6, 55:8, 55:12, 63:3, 63:18 reason [17] - 11:19, 17:22, 25:23, 26:3, 40:4, 42:5, 49:5, 50:2, 50:4, 53:6, 53:16, 55:5, 60:8, 66:4, 66:22, 68:4, 68:13 reasonable [9] 6:11, 6:23, 6:25, 10:12, 10:13, 12:12, 73:22 reasons [11] - 9:21, 27:9, 45:21, 49:6, 49:23, 51:4, 64:5, 65:4, 67:2, 67:6, 73:19 reassess [1] - 49:10 Rebuttal [2] - 3:7, 3:8 REBUTTAL [2] 66:14, 71:22 rebuttal [3] - 5:13, 20:8, 62:14 recalculated [1] 24:20 recognize [1] - 46:9 recollection [1] 28:1 record [17] - 4:7, 9:13, 12:24, 14:1, 16:4, 21:11, 21:17, 25:10, 26:18, 27:12, 27:15, 30:21, 39:6, 60:15, 60:24, 66:19, 66:21 records [2] - 30:25, 56:22 recover [3] - 36:3, 36:19, 36:25 reduce [1] - 64:7 reengineers [1] 12:7 refer [1] - 43:8 referenced [1] 12:25 references [1] - 13:2 referred [1] - 46:2 referring [2] - 13:3, 44:9 refers [3] - 14:13, 14:14, 34:9 reflect [2] - 24:12, 24:20 refugee [25] - 5:21, 12:15, 13:11, 22:13, 23:15, 24:16, 26:15, 26:18, 27:10, 28:8, 29:10, 29:13, 33:17, 36:7, 54:21, 57:7, 62:24, 63:13, 63:22, 64:22, 65:2, 65:3, 66:7, 69:25, 70:17 Refugee [14] - 4:3, 20:22, 23:8, 23:9, 23:18, 27:19, 28:10, 28:11, 28:14, 28:16, 62:21, 65:24, 66:4, 75:7 refugees [20] - 13:3, 13:8, 13:9, 13:17, 13:19, 13:23, 14:2, 14:9, 24:2, 24:8, 24:18, 25:12, 27:5, 30:10, 34:3, 36:8, 37:7, 57:5, 58:19, 65:9 refusing [1] - 17:3 regard [11] - 15:18, 24:1, 34:2, 43:19, 50:20, 59:11, 66:16, 66:18, 67:1, 69:3, 70:11 regarding [6] - 5:21, 6:17, 12:16, 14:8, 52:7, 67:25 regardless [2] - 59:7, 59:8 regards [5] - 22:23, 67:9, 69:2, 69:17, 69:23 related [1] - 19:23 relationship [1] 57:5 relative [2] - 23:6, J.A. 766 INDEX-86 56:17 relatively [1] - 37:25 release [2] - 24:12, 24:13 relevant [3] - 6:12, 18:24, 19:17 reliable [5] - 7:2, 38:23, 39:12, 39:15, 49:3 relief [22] - 22:16, 25:2, 25:10, 30:19, 32:24, 37:21, 50:8, 55:15, 55:17, 57:8, 57:10, 57:21, 57:22, 57:23, 58:17, 58:22, 59:16, 59:22, 60:17, 61:11, 61:20, 62:10 religion [11] - 21:14, 21:19, 40:5, 40:12, 43:9, 43:19, 43:21, 46:2, 46:4, 46:21, 47:1 religion-neutral [1] 46:21 religious [17] - 6:15, 30:11, 39:22, 40:6, 40:7, 40:8, 40:22, 42:13, 42:14, 42:24, 43:5, 44:1, 44:2, 45:9, 47:3, 59:16 rely [1] - 8:22 remarkable [1] 30:15 remedied [3] - 67:10, 67:16, 67:18 remedy [2] - 59:1, 70:6 remotely [2] - 33:25, 37:13 remove [1] - 59:1 removed [4] - 35:8, 37:11, 40:9, 45:20 repeatedly [1] - 33:6 replaced [1] - 47:22 reply [2] - 13:7, 24:11 report [4] - 8:16, 8:19, 8:20, 48:1 reported [1] - 75:5 REPORTER [2] 75:1, 75:21 Reporter [1] - 75:3 reporting [1] - 47:23 reports [6] - 9:16, 47:14, 47:18, 47:25, 48:2 represent [1] - 21:2 representations [1] 24:17 require [3] - 17:4, 26:7, 57:21 required [3] - 47:15, 58:1, 59:21 requirements [1] 47:23 requires [4] - 10:4, 34:18, 58:18, 66:24 research [1] - 20:5 reserve [1] - 5:13 resettle [2] - 37:7, 37:8 resettled [3] - 25:25, 26:1, 37:10 resettlement [6] 24:15, 24:16, 24:19, 27:10, 63:15, 70:18 resettling [1] - 24:19 resident [1] - 22:7 residents [1] - 30:8 resistance [1] - 12:6 resolutions [1] 39:25 resolve [1] - 34:21 resource [1] - 64:5 respect [8] - 18:2, 39:2, 46:16, 46:18, 55:2, 56:16, 57:2, 72:14 response [2] - 19:11, 40:9 rest [1] - 64:8 restraining [3] - 4:5, 5:9, 61:11 restrict [1] - 9:20 restricted [1] - 65:16 restriction [1] 11:24 restrictions [2] 54:3, 59:24 result [3] - 11:12, 15:7, 50:16 review [4] - 33:4, 47:17, 64:2, 73:2 revoked [1] - 47:21 RIFRA [1] - 18:14 rights [3] - 32:1, 56:19, 70:18 ripe [2] - 69:13, 69:15 risk [7] - 8:25, 22:20, 22:21, 38:18, 38:20, 39:3, 57:6 road [1] - 51:8 ROCAH [1] - 4:20 Rocah [1] - 4:20 root [1] - 57:19 routinely [1] - 67:16 RPR [1] - 75:20 rule [6] - 7:16, 24:16, 68:16, 72:2, 73:24, 73:25 Rule [1] - 55:20 rules [1] - 57:21 ruling [2] - 12:8, 74:13 run [4] - 32:7, 32:16, 60:18, 74:8 S safe [1] - 9:11 safely [1] - 52:15 Sale [1] - 54:8 same-sex [1] - 22:18 satisfy [1] - 33:7 Saudi [1] - 23:11 save [1] - 28:20 scattered [1] - 55:21 scenario [2] - 11:9, 11:16 schedule [2] - 29:11, 61:24 school [1] - 70:3 SCHWEI [1] - 5:5 Schwei [1] - 5:5 scope [4] - 17:24, 52:19, 53:8, 55:7 screening [2] 62:25, 64:7 scrutiny [2] - 43:15, 43:18 sea [1] - 54:18 Second [2] - 7:10, 72:25 second [6] - 7:19, 8:10, 45:4, 45:13, 67:1, 67:3 Secretaries [2] 29:25, 44:25 Secretary [3] - 15:5, 15:18, 17:12 Section [15] - 5:22, 14:11, 14:19, 16:21, 16:25, 17:2, 17:15, 17:17, 18:11, 18:12, 20:22, 25:8, 25:9, 52:5, 66:23 section [8] - 17:18, 19:8, 20:2, 20:3, 25:16, 26:6, 26:10, 27:2 secular [2] - 40:23, 42:12 Security [5] - 27:21, 29:25, 45:1, 47:14, 64:5 security [17] - 7:11, 7:13, 7:15, 8:11, 8:15, 8:18, 9:17, 10:3, 11:2, 11:13, 12:9, 24:2, 42:20, 55:3, 55:5, 62:25 see [11] - 10:24, 11:7, 13:2, 13:10, 17:8, 18:25, 19:5, 41:20, 60:20, 66:8, 71:1 seeing [1] - 60:9 seek [1] - 57:3 seeking [4] - 25:3, 49:8, 55:18, 64:22 seem [2] - 31:16, 50:17 send [2] - 44:1, 58:12 senior [1] - 7:21 sense [11] - 6:24, 6:25, 8:22, 11:7, 12:12, 18:11, 32:12, 36:1, 47:5, 65:25, 69:22 separate [3] - 29:11, 29:15, 66:20 separated [3] 21:23, 69:20, 69:21 separately [2] 29:11, 35:14 separation [1] - 70:5 serially [2] - 29:25, 45:6 serious [4] - 33:11, 53:7, 53:15, 55:8 serve [1] - 8:17 session [1] - 74:12 set [8] - 20:1, 26:7, 28:8, 28:17, 31:5, 37:12, 50:13, 69:8 sets [2] - 28:7, 28:11 Setting [1] - 37:1 seven [2] - 8:17, 13:16 seven-country [1] 8:17 several [1] - 22:5 sex [1] - 22:18 sham [2] - 7:16, 42:11 shorthand [2] - 75:6, 75:12 show [6] - 33:13, 35:9, 35:13, 35:16, 37:15, 57:9 shown [1] - 61:17 shows [1] - 6:5 shut [1] - 16:8 shuts [1] - 58:1 siblings [1] - 33:23 side [19] - 5:12, 5:14, 10:18, 30:24, 31:24, 32:16, 32:18, 33:17, 37:12, 42:9, 43:23, 44:20, 57:1, 61:9, 61:12, 61:21, 72:6, 73:10, 73:11 side's [1] - 45:7 significant [2] 14:18, 21:24 significantly [1] 14:19 similar [2] - 68:2, 70:22 simply [5] - 27:4, 37:7, 43:14, 48:16, 67:8 single [1] - 55:1 singled [1] - 46:20 singles [1] - 30:10 sister [3] - 33:18, 33:22, 33:24 sister's [1] - 23:16 sisters [1] - 33:23 situation [7] - 18:8, 50:19, 51:4, 52:8, 59:14, 71:3, 72:6 situations [4] - 72:1, 72:2, 72:5, 72:17 six [5] - 8:17, 8:25, 12:18, 37:24, 43:20 six-country [2] 8:17, 37:24 six-listed [1] - 43:20 slew [1] - 59:2 slowed [1] - 48:11 slowing [2] - 25:16, 27:9 smack [1] - 32:16 Somalia [1] - 69:24 someone [4] - 17:12, 22:11, 34:3, 59:13 sometimes [4] 34:12, 34:18, 72:15 somewhere [1] 37:8 soon [1] - 60:19 sorry [1] - 9:9 sort [13] - 11:23, 19:19, 28:4, 35:7, 39:11, 42:9, 49:13, 51:24, 54:25, 55:15, 55:18, 67:18, 69:20 source [1] - 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23:1, 33:8 J.A. 768 INDEX-88 tried [3] - 20:15, 50:3, 50:15 TRO [16] - 29:12, 31:12, 31:21, 33:14, 33:16, 37:14, 37:20, 57:1, 57:2, 61:1, 61:4, 61:16, 61:21, 67:25, 68:11, 68:18 troubled [2] - 38:22, 39:11 true [5] - 7:5, 21:15, 30:6, 50:8, 50:9 Trump [6] - 4:4, 12:22, 13:13, 46:13, 75:8 try [6] - 12:9, 46:11, 47:4, 53:23, 73:4, 74:13 trying [9] - 10:20, 11:4, 11:17, 13:22, 18:18, 34:23, 43:5, 47:5, 59:12 TUMLIN [1] - 4:12 Tumlin [1] - 4:12 turn [1] - 6:5 tweaks [1] - 7:22 Twitter [1] - 14:7 two [15] - 9:4, 14:15, 14:18, 19:12, 32:14, 35:7, 36:5, 38:2, 44:19, 44:21, 45:10, 49:21, 52:19, 60:13, 71:24 types [3] - 20:18, 73:10, 73:11 typically [2] - 13:20, 72:2 U U.S [3] - 22:7, 32:3, 35:7 ultimately [1] - 72:21 unbanned [1] - 13:14 uncharted [1] - 51:9 unconstitutional [1] - 59:11 under [22] - 7:7, 19:8, 20:2, 33:1, 36:12, 36:18, 38:9, 38:15, 42:7, 46:10, 49:13, 50:23, 52:4, 54:1, 54:7, 55:7, 64:2, 64:17, 72:10, 73:3, 73:21, 74:11 understood [2] 51:23 undertaken [1] 73:20 undisputed [6] - 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20:25, 22:24 visa [44] - 14:13, 14:14, 15:11, 15:12, 15:24, 16:8, 16:17, 16:22, 17:8, 17:14, 18:11, 19:10, 22:12, 22:19, 30:12, 30:24, 31:1, 31:5, 31:8, 31:15, 32:10, 32:16, 33:1, 33:3, 33:22, 34:6, 39:17, 48:8, 48:17, 48:20, 48:22, 48:25, 49:1, 49:21, 50:5, 50:19, 52:1, 60:13, 66:18, 66:20, 66:21, 66:24, 72:3, 73:18 Visa [4] - 38:11, 38:13, 38:15, 43:11 visas [26] - 14:22, 14:24, 15:2, 15:6, 15:16, 15:19, 16:1, 16:6, 16:13, 16:23, 17:3, 17:5, 18:6, 18:13, 22:5, 22:6, 34:2, 48:10, 48:15, 49:7, 49:9, 49:25, 50:9, 50:13, 50:24, 51:3 vital [1] - 70:3 W wait [3] - 10:3, 23:15, 48:23 waiting [2] - 31:7, 59:13 waiver [14] - 15:12, 16:12, 16:14, 30:12, 31:9, 39:16, 45:22, 48:18, 48:21, 56:21, 60:9, 60:14, 60:22, 60:23 Waiver [4] - 38:11, 38:13, 38:15, 43:11 waivers [2] - 16:7, 69:5 walk [2] - 51:13, 67:21 walks [1] - 59:8 WALL [53] - 4:23, 29:1, 29:2, 29:18, 29:21, 30:6, 31:18, 32:14, 32:21, 34:16, 34:22, 35:11, 35:13, 35:18, 36:5, 37:1, 37:5, 38:3, 38:16, 39:24, 40:14, 41:7, 41:17, 42:2, 42:22, 43:17, 44:13, 44:19, 45:4, 45:25, 46:9, 47:16, 48:3, 48:14, 48:24, 50:1, 50:7, 50:22, 51:5, 52:17, 53:22, 53:25, 54:17, 56:2, 56:12, 57:16, 58:7, 59:15, 60:3, 61:8, 61:10, 62:1, 62:15 wall [1] - 59:18 Wall [6] - 3:5, 4:23, 28:23, 29:2, 67:24, 71:13 walls [1] - 40:1 wants [4] - 22:9, 29:5, 33:18, 61:10 Washington [1] 68:13 water [1] - 51:9 ways [1] - 67:11 week [3] - 12:4, 26:16, 27:14 weeks [10] - 13:16, 33:25, 34:4, 37:14, 37:17, 46:19, 61:18, 62:5, 62:11, 70:4 Western [1] - 58:16 whereof [1] - 75:13 White [2] - 7:21, 44:10 whole [2] - 14:7, 59:3 wife [2] - 31:7, 69:25 willing [1] - 38:21 win [1] - 36:22 Wisconsin [1] 58:16 witness [1] - 75:13 words [2] - 12:7, 63:23 works [1] - 30:12 world [2] - 13:22, 26:22 worried [1] - 64:14 written [1] - 74:13 Z zero [1] - 65:24 zone [1] - 34:25 Y year [10] - 24:19, 25:5, 25:18, 25:25, 26:12, 28:17, 54:4, 64:8, 65:24, 66:7 year's [1] - 63:22 years [2] - 23:16, 33:23 Yemeni [2] - 51:18, 51:20 yesterday [1] - 27:16 yourselves [1] - 4:7 J.A. 769 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 1 of 43 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. Civil Action No. TDC-17-0361 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. 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 J.A. 770 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 2 of 43 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 Constitution. of the United States 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 Amendment Order violated to the United States Constitution, the Establishment Clause of the First 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"), Freedom Restoration Act, 42 U.S.C. SS SS 2000bb 1521-1524 (2012); and the Administrative (2012). 8 U.S.C. SS 1101-1537 (2012); the Religious to 2000bb-4 (2012); the Refugee Act, 8 U.S.C. Procedure Act ("APA"), 5 U.S.C. SS 701-706 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 2 J.A. 771 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 3 of 43 (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. organizational plaintiff. Plaintiffs substituted certain individual plaintiffs and added an 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. and conclusions of law and rules on the Motion. The Court now issues its findings of fact 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 visaissuance process," a process that "plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States." 1st Order therefore mandates, as relevant here, two courses of action. S 1. The First Executive Order The first, set forth in Section 3 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. I 3 J.A. 772 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 4 of 43 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). 4 J.A. 773 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 5 of 43 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. 5 J.A. 774 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 6 of 43 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 6 J.A. 775 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 7 of 43 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. 7 J.A. 776 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 8 of 43 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." 220. J.R. He explained that "[p )eople were so upset when I used the word Muslim," so he was 8 J.A. 777 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 9 of 43 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 9 J.A. 778 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 10 of 43 "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. 10 J.A. 779 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 11 of 43 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. 11 J.A. 780 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 12 of 43 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." have standing. U.S. Const. art. III, S 2, cl. 1. To invoke this power, a litigant must 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 12 J.A. 781 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 13 of 43 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] merits"); favor before proceeding to the 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 13 J.A. 782 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 14 of 43 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 14 J.A. 783 and Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 15 of 43 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." Ct. at 1389. A plaintiffs Lexmark, 134 S. 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 15 J.A. 784 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 16 of 43 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 Because Band of Pottawatomi implementing Indians v. Patchak, the "underlying intention 132 S. Ct. 2199, 2210 (2012)). 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. 16 J.A. 785 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 17 of 43 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, non- economic, 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 17 J.A. 786 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 18 of 43 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. 18 J.A. 787 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 19 of 43 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 rulings," Am. Foreign Servo Ass'n V. constitutional 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. formulation of immigration policies is entrusted exclusively to Congress. The 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 issuing the travel ban against citizens of the Designated Countries. See 2d Order Plaintiffs 9 1I82(f) in 9 2( c). 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)"), which provides that, with certain exceptions: 19 J.A. 788 9 1152(a) Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 20 of 43 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 discrimination on the basis of nationality. action appears to conflict with the bar on 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. S 8 U.S.C. 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, otherwise." Id S 1101(a)(13) (1994). voluntary or 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 20 J.A. 789 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 21 of 43 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 to address different activities handled by different government officials. S 1182(f) appear 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 1I52(a) does not intrude upon the President's States, the converse is also true: issuance of immigrant visas. the S S S 1I52(a). Just as S 1I82(f) authority to bar entry to the United 1182(f) authority to bar entry does not extend to the 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. 21 J.A. 790 Notably, the Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 22 of 43 S Government has identified no instance in which 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 President to use exception. S S 1152(a) does not constrain the ability of the 1182(f) to bar the issuance of immigrant visas, the Court finds no such Section 1152(a) requires a particular result, namely non-discrimination issuance of immigrant visas on specific, enumerated bases. in the 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 S 1152(a) and 1182(f) may conflict on the question S whether the President can bar the issuance of immigrant visas based on nationality, the more specific provision, controls the more general S 1152(a), as 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). 1152(a) explicitly excludes certain sections of the INA from its scope, specifically 1101(a)(27), 1151(b)(2)(A)(i), and 1153. among the exceptions. Moreover, 8 U.S.C. 9 1152(a)(1)(A). S 99 Section 1182(f) is not 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 discrimination on the basis of nationality in the issuance of immigrant visas based on 8 U.S.C. 1152(a)(1)(B), which states that "[n]othing in [9 in 9 1152(a)] shall be construed to limit the authority 22 J.A. 791 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 23 of 43 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 1152(a)(l)(B) Although S S 1152(a), the text of S does not comfortably establish that such a delay falls within this exception. 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. different concepts, and readily conclude that on nationality S 1152(a)(l)(B) S 1152(a)(l)(B) despite Because time, place, and manner are addresses only place and manner, the Court cannot permits the imminent 90-day ban on immigrant visas based 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, Carter's invocation of 8 U.S.C. S the Government 1185(a)(l) to bar entry of Iranian nationals during the Iran Hostage Crisis in 1979. Crucially, however, President Carter used limitations and exceptions cites President on the rules and regulations" S 1185(a)(l) to "prescribe governing "Iranians 23 J.A. 792 holding Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 24 of 43 nonimmigrant visas," a category that is outside the ambit of 67947 (1979). S 1I52(a). The Government has identified no instance in which control the immigrant visa issuance process. S 44 Fed. Reg. 67947, 1185(a) has been used to 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 fair reading of S S 1I82(t), the most 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 discrimination provision of S S l182(t) is exempt from the non- 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. claim that S They have not shown a likelihood of success on the merits of the 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 terrorist threats, the Order conflicts with 8 U.S.C. inadmissible based on an enumerated 1182(a)(3)(B)(i)(I), (IV), and (VII). distinctions are ostensibly aimed at potential S 1I82(a)(3)(B), which renders an individual list of terrorism considerations. See 8 U.S.C. Plaintiffs contend that these provisions S indicate that Congress has established a mechanism for the individualized assessment of the terror risk an 24 J.A. 793 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 25 of 43 immigrant poses, such that Congress did not envision that terrorism would be addressed through broad nationality- or religion-based bans pursuant to for their contention and make no showing that coexist." Radzanower, 426 U.S. at 155. emphatically individualized S S 1182(f). But Plaintiffs provide no support 1182(a)(3)(B) and S 1182(f) "cannot mutually Although Plaintiffs try to cast S enterprise, neither 1182(a) nor President to barring entry only to classes of aliens delineated in S S S 1182(a) as an 1I82(f) purports to limit the 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. First Amendment prohibits any "law respecting an establishment The 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 25 J.A. 794 n.13 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 26 of 43 (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," purpose test has not been satisfied. the 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)). "understanding of official objective" can emerge from "readily discoverable ''judicial psychoanalysis" of the decisionmaker. An fact" without 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 26 J.A. 795 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 27 of 43 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." 27 J.A. 796 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 28 of 43 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.' know what that means." We all 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 28 J.A. 797 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 29 of 43 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 29 J.A. 798 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 30 of 43 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 30 J.A. 799 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 31 of 43 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 31 J.A. 800 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 32 of 43 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 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. 2 32 J.A. 801 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 33 of 43 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 where the county government's purpose was at issue). 33 J.A. 802 display Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 34 of 43 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 34 J.A. 803 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 35 of 43 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. 35 J.A. 804 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 36 of 43 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 36 J.A. 805 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 37 of 43 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 37 J.A. 806 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 38 of 43 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) 38 J.A. 807 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 39 of 43 (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 circuits have. Clause likewise necessarily results in irreparable harm, other 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. 39 J.A. 808 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 40 of 43 Preventing an Establishment Clause violation has significant public benefit beyond the interests of the Plaintiffs. The Supreme Court has recognized the "fundamental Establishment Clause in our constitutional scheme." place held by the 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." Vitale, 370 U.S. 421, 432-33 (1962). Engel v. 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." Defendants, Haig v. Agee, 453. U.S. 280, 307 (1981). 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 40 J.A. 809 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 41 of 43 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., 41 J.A. 810 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 42 of 43 653 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." 1166-67. Washington, 847 F.3d at "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." omitted). Texas, 80 F.3d at 187-88 (footnotes and quotation marks 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. 42 J.A. 811 Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 43 of 43 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 43 J.A. 812 Case 8:17-cv-00361-TDC Document 150 Filed 03/16/17 Page 1 of 3 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. Civil Action No. TDC-17-0361 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. 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 J.A. 813 Case 8:17-cv-00361-TDC Document 150 Filed 03/16/17 Page 2 of 3 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. 2 J.A. 814 Case 8:17-cv-00361-TDC Document 150 Filed 03/16/17 Page 3 of 3 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 3 J.A. 815 Case 8:17-cv-00361-TDC Document 160 Filed 03/17/17 Page 1 of 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION ____________________________________ ) ) ) ) Plaintiffs, ) ) v. ) ) DONALD TRUMP, in his official capacity ) as President of the United States, et al., ) ) Defendants. ) ____________________________________) INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al., No. 8:17-cv-00361-TDC NOTICE OF APPEAL PLEASE TAKE NOTICE that the defendants Donald 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 Daniel Coats, in his official capacity as Director of National Intelligence,1 hereby appeal to the United States Court of Appeals for the Fourth Circuit from the Memorandum Opinion and Order at ECF Nos. 149 and 150, both dated March 15, 2017 and entered on March 16, 2017, enjoining enforcement of Section 2(c) of Executive Order 13,780. Dated: March 17, 2017 Respectfully submitted, JEFFREY B. WALL Acting Solicitor General 1 Pursuant to Federal Rule of Civil Procedure 25(d), Daniel Coats is substituted for Michael Dempsey as a defendant in this case. 1 J.A. 816 Case 8:17-cv-00361-TDC Document 160 Filed 03/17/17 Page 2 of 3 CHAD A. READLER Acting Assistant Attorney General ROD J. ROSENSTEIN United States Attorney JENNIFER D. RICKETTS Director, Federal Programs Branch JOHN R. TYLER Assistant Director, Federal Programs Branch /s/ Arjun Garg ARJUN GARG (Bar No. 806537) MICHELLE R. BENNETT (Bar No. 806456) DANIEL SCHWEI (Bar No. 96100) BRAD P. ROSENBERG Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8613 Fax: (202) 616-8470 E-mail: arjun.garg@usdoj.gov michelle.bennett@usdoj.gov daniel.s.schwei@usdoj.gov Attorneys for Defendants 2 J.A. 817 Case 8:17-cv-00361-TDC Document 160 Filed 03/17/17 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on March 17, 2017, I electronically filed the foregoing Notice of Appeal using the Court’s CM/ECF system, causing a notice of filing to be served upon all counsel of record. /s/ Arjun Garg ARJUN GARG J.A. 818 CERTIFICATE OF SERVICE I hereby certify that on March 24, 2017, I electronically filed the foregoing Joint Appendix with the Clerk of the Court for the United States Court of Appeals for the Fourth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system. s/ H. Thomas Byron III H. Thomas Byron III

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