Intl. Refugee Assistance v. Donald J. Trump

Filing 123

BRIEF by Appellants Daniel R. Coats, Department of State, Elaine C. Duke, Office of the Director of National Intelligence, Rex Tillerson, Donald J. Trump and United States Department of Homeland Security in 17-2231, Appellants Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson B. Sessions III, Rex Tillerson and Donald J. Trump in 17-2232, Appellants Elaine C. Duke, Rex Tillerson, Donald J. Trump, United States Department of Homeland Security and United States Department of State in 17-2233 in electronic and paper format. Type of Brief: RESPONSE/REPLY. Method of Filing Paper Copies: courier. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/22/2017. [1000197292] [17-2231, 17-2232, 17-2233, 17-2240] Sharon Swingle [Entered: 11/22/2017 04:09 PM]

Nos. 17-2231 (L), 17-2232, 17-2233, 17-2240 (Consolidated)

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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; JOHN DOES #1 AND 3;
JANE DOE #2; MIDDLE EAST STUDIES ASSOCIATION OF NORTH AMERICA, INC., on behalf of
itself and its members; MUHAMMED METEAB; PAUL HARRISON; IBRAHIM AHMED
MOHOMED; ARAB AMERICAN ASSOCIATION OF NEW YORK, on behalf of itself and its clients,
Plaintiffs – Appellees,
and ALLAN HAKKY; SAMANEH TAKALOO,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES
DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF STATE; OFFICE OF THE
DIRECTOR OF NATIONAL INTELLIGENCE; ELAINE C. DUKE, in her official capacity as Acting
Secretary of Homeland Security; REX TILLERSON, in his official capacity as Secretary of State;
DANIEL R. COATS, in his official capacity as Director of National Intelligence,
Defendants – Appellants.
No. 17-2231 (L)
On Cross-Appeal from the United States District Court
for the District of Maryland, Southern Division
(8:17-cv-00361-TDC)
[Caption continued on inside cover]
THIRD CROSS-APPEAL BRIEF FOR APPELLANTS
NOEL J. FRANCISCO
Solicitor General
JEFFREY B. WALL
EDWIN S. KNEEDLER
Deputy Solicitors General

CHAD A. READLER
Principal Deputy Assistant Attorney General
STEPHEN M. SCHENNING
Acting United States Attorney
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
SHARON SWINGLE
H. THOMAS BYRON III
LOWELL V. STURGILL JR.
Attorneys, Appellate Staff
Civil Division, Room 7241
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
[phone]

____________________
No. 17-2232
(8:17-cv-02921-TDC)
____________________
IRANIAN ALLIANCES ACROSS BORDERS; JANE DOE #1; JANE DOE #2; JANE DOE #3;
JANE DOE #4; JANE DOE #5, JANE DOE #6,
Plaintiffs – Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; ELAINE C. DUKE, in
her official capacity as Acting Secretary of Homeland Security; KEVIN K. MCALEENAN, in his official
capacity as Acting Commissioner of U.S. Customs and Border Protection; JAMES MCCAMENT, in his
official capacity as Acting Director of U.S. Citizenship and Immigration Services; REX TILLERSON;
JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States,
Defendants – Appellants.
____________________
No. 17-2233
(1:17-cv-02969-TDC)
____________________
EBLAL ZAKZOK; SUMAYA HAMADMAD; FAHED MUQBIL; JOHN DOE #1; JOHN DOE #2;
JOHN DOE #3,
Plaintiffs – Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES
DEPARTMENT OF HOMELAND SECURITY; UNITED STATES DEPARTMENT OF STATE;
ELAINE C. DUKE, in her official capacity as Acting Secretary of Homeland Security; REX
TILLERSON, in his official capacity as Secretary of State,
Defendants – Appellants.

____________________
No. 17-2240
(8:17-cv-00361-TDC)
____________________
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; JOHN DOES #1
AND 3; JANE DOE #2; MIDDLE EAST STUDIES ASSOCIATION OF NORTH AMERICA,
INC., on behalf of itself and its members; MUHAMMED METEAB; ARAB AMERICAN
ASSOCIATION OF NEW YORK, on behalf of itself and its clients,
Plaintiffs – Appellants,
and PAUL HARRISON; IBRAHIM AHMED MOHOMED; ALLAN HAKKY; SAMANEH
TAKALOO,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES
DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF STATE; OFFICE OF THE
DIRECTOR OF NATIONAL INTELLIGENCE; ELAINE C. DUKE, in her official capacity as
Acting Secretary of Homeland Security; DANIEL R. COATS, in his official capacity as Director
of National Intelligence,
Defendants – Appellees

TABLE OF CONTENTS
Page
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 5
I.

Plaintiffs’ Claims Are Not Justiciable ............................................................. 5
A.
B.

II.

Plaintiffs’ Statutory Claims Are Not Justiciable .................................. 5
Plaintiffs’ Establishment Clause Claims Are
Not Justiciable ...................................................................................... 9

Plaintiffs Do Not Have A Likelihood Of Success On The
Merits Of Their Statutory Or Constitutional Claims .................................... 11
A.

The Proclamation Is Consistent With The INA ................................... 11
1.
2.

B.

The Proclamation Is Within The President’s Statutory
Authority Under Sections 1182(f) And 1185(a)(1) .................. 12
The Proclamation Does Not Violate Section
1152(a)(1)(A) ............................................................................ 16

The Proclamation Is Consistent With The
Establishment Clause .......................................................................... 18
1.

2.
III.

The Proclamation Is Constitutional Under Mandel
Because It Relies On Facially Neutral And Bona
Fide Reasons ............................................................................. 18
The Proclamation Is Valid Under McCreary............................ 20

The Balance Of Harms Weighs Strongly Against Preliminary Relief .......... 27

CONCLUSION ........................................................................................................ 29
i

CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

ii

TABLE OF AUTHORITIES
Cases:

Page(s)

Abourezk v. Reagan,
785 F.2d 1043 (D.C. Cir. 1986),
aff’d by an equally divided Court, 484 U.S. 1 (1987) ................................. 6, 8, 13
Allen v. Wright,
468 U.S. 737 (1984) ...............................................................................................9
Allende v. Shultz,
845 F.2d 1111 (1st Cir. 1988) ..............................................................................13
Arizona v. United States,
567 U.S. 387 (2012) ............................................................................................. 12
Armstrong v. Exceptional Child Center, Inc.,
135 S. Ct. 1378 (2015) ....................................................................................... 8, 9
Department of Navy v. Egan,
484 U.S. 518 (1988) ...............................................................................................6
Fiallo v. Bell,
430 U.S. 787 (1977) .............................................................................................20
Haig v. Agee,
453 U.S. 280 (1981) .............................................................................................27
Harisiades v. Shaughnessy,
342 U.S. 580 (1952) ...............................................................................................6
Hawaii v. Trump,
No. 17-17168, Order (Nov. 13, 2017) ..................................................................28
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ................................................................................................ 27
International Union of Bricklayers v. Meese,
761 F.2d 798 (D.C. Cir. 1985) .............................................................................. 7
iii

IRAP v. Trump,
857 F.3d 554 (4th Cir. 2017),
vacated as moot, 2017 WL 4518553 (U.S. Oct. 10, 2017) ......................... 2, 9, 19
Kerry v. Din,
135 S. Ct. 2128 (2015) .................................................................................... 9, 19
Kleindienst v. Mandel,
408 U.S. 753 (1972) ........................................................................ 3, 9, 18, 19, 20
Legal Assistance for Vietnamese Asylum Seekers v. Department of
Justice, 45 F.3d 469 (D.C. Cir. 1995), vacated on other grounds,
519 U.S. 1 (1996) .......................................................................................... 6, 7, 8
Lujan v. National Wildlife Fed’n,
497 U.S. 871 (1990) ...............................................................................................8
McCreary County v. ACLU of Kentucky,
545 U.S. 844 (2005) .................................................................................. 3, 20, 26
McGowan v. Maryland,
366 U.S. 420 (1961) ...................................................................................... 10, 26
Mulligan v. Schultz,
848 F.2d 655 (5th Cir. 1988) ................................................................................. 7
Patel v. Reno,
134 F.3d 929 (9th Cir. 1997) ................................................................................. 7
Reno v. American-Arab Anti-Discrimination Committee,
525 U.S. 471 (1999) .............................................................................................25
Saavedra Bruno v. Albright,
197 F.3d 1153 (D.C. Cir. 1999)..........................................................................6, 8
Sale v. Haitian Ctrs. Council, Inc.,
509 U.S. 155 (1993) ........................................................................................ 6, 12

iv

Sessions v. Morales-Santana,
137 S. Ct. 1678 (2017) .........................................................................................20
Suhre v. Haywood Cty.,
131 F.3d 1083 (4th Cir. 1997) ............................................................................... 9
Trump v. IRAP:
137 S. Ct. 2080 (2017) .........................................................................................27
Two Guys From Harrison-Allentown, Inc. v. McGinley:
179 F. Supp. 944, 946 (E.D. Pa. 1959) ................................................................ 10
366 U.S. 582 (1961) ............................................................................................. 10
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) ........................................................................................ 5, 12
Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464 (1982) ..................................................... 9, 19

Statutes:
Administrative Procedure Act:
5 U.S.C. § 701(a)(1) ...............................................................................................7
5 U.S.C. § 702(1) ....................................................................................................7
5 U.S.C. § 703 ........................................................................................................8
Immigration and Nationality Act:
8 U.S.C. § 1152(a)(1)(A) ............................................................... 3, 11, 16, 17, 18
8 U.S.C. § 1182(a) ........................................................................................... 3, 13
8 U.S.C. § 1182(f) ............................................. 2, 3, 11, 12, 13, 14, 15, 16, 17, 18
8 U.S.C. § 1185(a)(1) .................................................... 2, 3, 11, 12, 13, 16, 17, 18
8 U.S.C. § 1187(a)(3) .......................................................................................... 24
8 U.S.C. § 1187(a)(12)(A)....................................................................................24
8 U.S.C. § 1187(a)(12)(D)....................................................................................24
8 U.S.C. § 1187(c) ................................................................................................15

v

Other Authorities:
9 Foreign Affairs Manual 403.7-3 ............................................................................. 8
9 Foreign Affairs Manual 504.1-3(f) ......................................................................... 8
Proclamation No. 9645, 82 Fed. Reg. 45,161 (2017) ...................................... passim
U.S. Dep’t of Homeland Security, Fact Sheet: The President’s
Proclamation on Enhancing Vetting Capabilities and Processes for
Detecting Attempted Entry into the United States by Terrorists
or Other Public-Safety Threats, https://www.dhs.gov/news/2017/09/24/
fact-sheet-president-s-proclamation-enhancing-vettingcapabilities-and-processes ................................................................................... 24

vi

INTRODUCTION
The President issued Proclamation No. 9645 pursuant to his broad
constitutional and statutory authority to exclude aliens whose entry he determines
would be detrimental to the interests of the United States. The Proclamation was the
product of a global review and evaluation of foreign governments’ informationsharing practices and other risk factors, involving multiple Cabinet heads and other
agency officials whose motives have never been questioned.

That process

culminated in a recommendation by the Acting Secretary of Homeland Security to
restrict the entry of certain nationals of eight countries, and, acting in accordance
with that recommendation, the President imposed tailored substantive restrictions
for those eight countries to encourage improvement in their inadequate practices and
to protect the Nation unless and until they do so.
Plaintiffs disregard these critical features of the Proclamation, simply labeling
it a “re-animation” of the Executive Order (EO-2) previously before this Court. Br.
1-2. Relying on the views of former government officials and commentators,
plaintiffs suggest that the entry restrictions in the Proclamation are unnecessary to
protect national security or to encourage foreign governments to improve their
practices.

This Court should reject plaintiffs’ invitation to second-guess the

national-security and foreign-policy judgment of the President and his top advisors,

which could disable this President and future ones from addressing critical security
risks and would impugn the validity of past Presidents’ entry restrictions.
As an initial matter, there is no basis for allowing these harms because the
district court exceeded the proper limits on its jurisdiction. As to plaintiffs’ statutory
claims, the political branches’ exclusion of aliens abroad is beyond the province of
courts to review absent express authorization by Congress. Plaintiffs neither identify
any such authorization nor provide a principled justification why the rule should
apply to individual decisions by subordinate officials but not to policy decisions by
the head of the Executive Branch. As to plaintiffs’ constitutional claims, this Court
has previously recognized that alleged “condemnation” injuries are not cognizable
absent “personal contact” with an Establishment Clause violation. IRAP v. Trump,
857 F.3d 554, 582 (4th Cir. 2017), vacated as moot, 2017 WL 4518553 (U.S. Oct.
10, 2017). Plaintiffs fail to explain how their own constitutional rights are violated
merely because they allegedly suffer indirect injuries flowing from the
Proclamation’s alleged discrimination against aliens abroad who lack constitutional
rights.
Plaintiffs’ claims also fail on the merits. As to their claims under the
Immigration and Nationality Act (INA), plaintiffs mischaracterize the government’s
position as being that the President can invoke 8 U.S.C. §§ 1182(f) and 1185(a)(1)
to override Congress’s judgment. Instead, and as the district court acknowledged,
2

Congress in § 1182(f) and § 1185(a)(1) ratified the President’s authority to
supplement 8 U.S.C. § 1182(a)’s grounds of inadmissibility by excluding aliens
whose entry he finds to be detrimental. This includes, contrary to plaintiffs’
suggestion, when entry would be detrimental because of concerns that are similar to
ones that Congress has addressed in other INA provisions or that are focused on
those aliens’ governments. And where the problem sought to be addressed is nationspecific, it is wrong to read 8 U.S.C. § 1152(a)(1)(A)’s discrimination protections
for eligible immigrant-visa applicants to impliedly repeal the President’s authority
under § 1182(f) and § 1185(a)(1) to suspend the entry eligibility of those nations’
citizens. Notwithstanding plaintiffs’ half-hearted denials, their arguments would
necessarily imply that the actions of past Presidents were invalid, including President
Carter’s Iran order and President Reagan’s Cuba order.
As to plaintiffs’ Establishment Clause claim, they fail to show a constitutional
violation under either the “facially legitimate and bona fide” standard in Kleindienst
v. Mandel, 408 U.S. 753 (1972), or the “secular purpose” standard in McCreary
County v. ACLU of Kentucky, 545 U.S. 844 (2005). Plaintiffs’ suggestion that the
review and recommendation process that culminated in the Proclamation was a “preordained” sham (Br. 2) is belied by the undisputed good faith of the agencies
involved and the clear instructions in EO-2 to recommend only those restrictions
they deemed appropriate. And plaintiffs’ suggestion that there was “subjective,
3

post-hoc manipulation of the process to make the results even more of a Muslim
ban” (id.) is irreconcilable with the substance of the tailored restrictions, which
exclude two Muslim-majority countries from which entry was previously restricted
(Iraq and Sudan); add two non-Muslim-majority countries and a third that is barely
Muslim-majority (North Korea, Venezuela, and Chad); and provide additional
exemptions for nonimmigrant visas from certain Muslim-majority countries
(Somalia, Chad, Libya, Yemen, and Iran). Although plaintiffs emphasize that the
process nevertheless culminated in coverage of mostly Muslim-majority countries
that overlap substantially with those covered under EO-2, that hardly calls into
question the validity of the process, because most of those countries were also
previously identified by Congress or the Executive Branch as posing heightened
risks. Plaintiffs further emphasize pre-Proclamation statements (and a few postProclamation statements) by the President that are alleged to show religious animus,
but it is both illogical and dangerous to use such statements to disable the President
from acting on the national-security and foreign-policy recommendations of his
Cabinet.
Finally, even if some injunctive relief were appropriate, the district court erred
in refusing to limit its injunction to identified aliens whose exclusion would impose
concrete, irreparable harm on plaintiffs.

A fortiori, this Court should reject

plaintiffs’ argument that the injunction should be expanded to reach aliens who lack
4

even a credible claim of a bona fide relationship with a person or entity in the United
States, the exclusion of whom by definition causes no cognizable harm to plaintiffs.
ARGUMENT
I.

Plaintiffs’ Claims Are Not Justiciable
A.

Plaintiffs’ Statutory Claims Are Not Justiciable

1.

Plaintiffs’ statutory claims are barred by the longstanding principle that

“it is not within the province of any court, unless expressly authorized by law, to
review the determination of the political branch of the Government to exclude a
given alien.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950).
Plaintiffs seek to cabin this principle to “review of purely statutory challenges to a
consular official’s decision to issue or withhold a visa.” Br. 15. But regardless of
whether a distinction between individualized decisions and broad policies might
make sense in some contexts (cf. Br. 16-17), it makes no sense here, because it turns
upside-down the separation-of-powers rationale of the nonreviewability principle.
Rather than relying on anything specific to the individualized nature of
consular officials’ visa decisions, the principle of nonreviewability of the exclusion
of aliens rests more broadly on the “recognition that ‘any policy toward aliens is
vitally and intricately interwoven with * * * the conduct of foreign relations, the war
power, and the maintenance of a republican form of government’”—matters “ʻso
exclusively entrusted to the political branches of government as to be largely
5

immune from judicial inquiry or interference.’” Saavedra Bruno v. Albright, 197
F.3d 1153, 1159 (D.C. Cir. 1999) (quoting Harisiades v. Shaughnessy, 342 U.S. 580,
588-89 (1952)); see also id. at 1162 (“When it comes to matters touching on national
security or foreign affairs * * * the presumption of review ‘runs aground.’”) (quoting
Department of Navy v. Egan, 484 U.S. 518, 527 (1988)). That separation-of-powers
rationale applies a fortiori to the President’s policy decision to exclude certain
classes of aliens abroad whose entry he finds would be detrimental to the interests
of the United States, as compared to an individualized visa determination under the
INA by a subordinate executive official.
2.

Unsurprisingly, plaintiffs fail to cite a single case prior to this litigation

and the related Hawaii litigation where a court without express congressional
authorization has held that judicial review is available of a statutory claim seeking
to order the Executive to allow the entry of an alien abroad. Each case on which
they rely (Br. 14-16) is readily distinguishable, including on grounds that the
government explained in its opening brief yet plaintiffs notably ignore.
Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 170-88 (1993), denied
relief on the merits and did not address reviewability at all. Gov’t Br. 25. Abourezk
v. Reagan, 785 F.2d 1043, 1051 & n.6 (D.C. Cir. 1986), asserted that Congress had
expressly authorized review, but Congress subsequently amended the INA to
eliminate the purported authorization.

Gov’t Br. 22.
6

Legal Assistance for

Vietnamese Asylum Seekers v. Department of State, 45 F.3d 469, 470 (D.C. Cir.
1995) (LAVAS), involved only a procedural question of where a visa interview would
occur, and it was vacated in any event when Congress again abrogated the basis for
review, 519 U.S. 1 (1996). International Union of Bricklayers v. Meese, 761 F.2d
798, 801 (D.C. Cir. 1985), involved a challenge to aliens’ admission (not exclusion)
by unions that did not want competition. Patel v. Reno, 134 F.3d 929, 931-32 (9th
Cir. 1997), involved a challenge to a consular officer’s procedural authority to
decline to act on a visa application, not a substantive decision to deny a visa.
Mulligan v. Schultz, 848 F.2d 655, 657 (5th Cir. 1988), similarly challenged the
procedure adopted by the Secretary of State for establishing chronological priority
for visa applications, and the reviewability discussion was immaterial because relief
was denied on the merits regardless.
3.

Plaintiffs also err in their arguments (Br. 17-19) that Congress has

authorized judicial review under the Administrative Procedure Act (APA).
First, the APA does not apply where a statute “preclude[s] review” or the
agency’s action is otherwise nonreviewable. See 5 U.S.C. §§ 701(a)(1), 702(1). As
the government showed in its opening brief (at 19-22, 24-25), those exemptions
apply here, given the principle of nonreviewability of the exclusion of aliens abroad.
Plaintiffs offer no response to that showing, nor to the government’s related

7

demonstration that Congress expressly abrogated APA review even for the exclusion
of aliens physically present in the United States at the border.
Second, plaintiffs have no statutory right to enforce under the APA. They
invoke Abourezk and the vacated decision in LAVAS, but those decisions cannot be
reconciled with Saavedra Bruno and Lujan v. National Wildlife Federation, 497 U.S.
871 (1990), and plaintiffs make no attempt to do so. See Gov’t Br. 24.
Third, there is no final agency action to review under the APA. Although
plaintiffs emphasize that Presidential decisions can be challenged through actions of
subordinate officials, they have not overcome the government’s showing that there
is no final action to challenge because none of their relatives or other aliens with
whom they have a bona fide connection has actually been excluded yet by virtue of
the Proclamation. See Gov’t Br. 22-23. As for plaintiffs’ observation that some
relatives had completed interviews and were awaiting administrative processing, that
means their visa applications had already been denied on independent grounds, see
9 Foreign Affairs Manual 504.1-3(f), 403.7-3, and it is unclear whether those
relatives will ever be found otherwise eligible for a visa wholly apart from the
Proclamation.
4.

Finally, plaintiffs cannot evade these problems by invoking (Br. 17) the

Court’s inherent equitable authority.

The APA governs suits challenging

government action, 5 U.S.C. § 703, and in any event Armstrong v. Exceptional Child
8

Center, Inc., 135 S. Ct. 1378 (2015), makes clear that equitable authority is
constrained by “express and implied statutory limitations” on review. Id. at 1385.
B.

Plaintiffs’ Establishment Clause Claims Are Not Justiciable

Plaintiffs also argue (Br. 20) that the Proclamation’s supposed condemnation
of their religion provides Article III injury, but as the government’s opening brief
explained (at 27-28), mere stigma does not establish standing, for Establishment
Clause purposes or otherwise. See Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 485-86 (1982); Allen v. Wright,
468 U.S. 737, 755 (1984). A plaintiff must show “personal contact” with challenged
government action, Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th Cir. 1997);
IRAP, 857 F.3d at 582-83, which is lacking here because the Proclamation does not
apply to plaintiffs but only to third-party aliens abroad.
Plaintiffs argue (Br. 20) that their constitutional claims are no different than
the ones reviewed by the Supreme Court in Mandel and Kerry v. Din, 135 S. Ct.
2128 (2015), but the plaintiffs in those cases alleged that the exclusion of aliens
abroad violated their own constitutional rights. See Mandel, 408 U.S. at 770 (alleged
free-speech right); Din, 135 S. Ct. at 2131 (alleged due-process right). Here, by
contrast, plaintiffs are not asserting violations of their own constitutional rights, but
instead indirect injuries resulting from the Proclamation’s application to others—the
individual plaintiffs’ family members and the organizational plaintiffs’ clients
9

abroad (who, moreover, themselves have no constitutional rights). In that context,
the Supreme Court has held that plaintiffs may not sue. See Gov’t Br. 26.
Plaintiffs argue that Two Guys From Harrison-Allentown, Inc. v. McGinley,
366 U.S. 582 (1961), recognized a company’s standing to challenge a Sunday
closing law “even though only the company’s employees—not the company itself—
had been regulated, prosecuted, and fined for violating a previous version of the
law.” Br. 21. That is incorrect. Like the employee in McGowan v. Maryland, 366
U.S. 420, 430-31 (1961), the business in Two Guys was directly regulated by the
Sunday closing law, 366 U.S. at 583 n.1, and the Supreme Court characterized the
challenge as one by the business to prevent enforcement of “th[e] statute against it,”
id. at 586. The law’s operation against the employees was merely an additional
means of regulating the businesses. See Two Guys From Harrison-Allentown, Inc.
v. McGinley, 179 F. Supp. 944, 946 (E.D. Pa. 1959).
Finally, plaintiffs’ suggestion (Br. 21) that alleged injury-in-fact alone is
sufficient to bring an Establishment Clause claim—even where it is only the indirect
effect of the challenged law’s regulation of third parties—cannot possibly be correct.
If true, for example, that would mean that a U.S. Christian could challenge the
Proclamation’s exclusion of his relatives who are Syrian Christians as a violation of
his own Establishment Clause rights. That would be a nonsensical result.

10

II.

Plaintiffs Do Not Have A Likelihood Of Success On The Merits Of
Their Statutory Or Constitutional Claims
As the government’s opening brief described (at 6, 8-12), the Proclamation is

the result of a months-long worldwide review and process of diplomatic engagement
that involved the efforts of multiple government agencies and officials whose
motives have never been questioned. That process culminated in a recommendation
from the Acting Secretary of Homeland Security, with which the President acted in
accordance—namely, by adopting tailored substantive restrictions designed to
encourage improvement by eight countries with inadequate information-sharing
practices or other risk factors and to protect this Nation unless and until they do so.
In light of these critical features of the Proclamation, plaintiffs’ statutory and
constitutional arguments all fail.
A.

The Proclamation Is Consistent With The INA

Despite the district court’s rejection of their argument, JA 1041-53, plaintiffs
assert that the President exceeded his authority under 8 U.S.C. §§ 1182(f) and
1185(a)(1) because the Proclamation supposedly overrides the INA. Plaintiffs also
defend the district court’s narrower conclusion, JA 1034-40, that the Proclamation
violates the prohibition on nationality-based discrimination for immigrant visas
under 8 U.S.C. § 1152(a)(1)(A). Both arguments are incorrect.

11

1.
a.

The Proclamation Is Within The President’s Statutory
Authority Under Sections 1182(f) And 1185(a)(1)

Plaintiffs mischaracterize the government’s position as asserting

“limitless authority” for the President under 8 U.S.C. § 1182(f). Br. 28. Whatever
the outer bounds of the President’s power, the Proclamation’s entry restrictions fall
well within his legal authority and historical practice.
First, the entry restrictions are based on the President’s determination that they
are needed to encourage countries with inadequate information-sharing practices or
other risk factors to improve their practices, while protecting the Nation from those
risks in the interim. Plaintiffs posit hypotheticals (Br. 29) such as a ban on entry on
all employment-based visas in order to affect the domestic labor market, but the
exclusion of aliens abroad based on national-security and foreign-policy concerns is
action taken at the height of the President’s authority. See Gov’t Br. 53-54. The
President was exercising his “unique responsibility” over “foreign * * * affairs,”
Sale, 509 U.S. at 188, and his “inherent executive power” concerning the
“admissibility of aliens,” Knauff, 338 U.S. at 542, as well as his statutory authority
in Sections 1182(f) and 1185(a)(1). Contrary to plaintiffs’ suggestion (Br. 30),
Arizona v. United States, 567 U.S. 387 (2012), holds that States lack power to
regulate immigration because that power is exclusively “entrusted to * * * the
Federal Government,” id. at 409, not that the President lacks power to exclude aliens
absent Congressional authorization. Accordingly, plaintiffs’ separation-of-powers
12

concerns (Br. 2, 28, 30, 63) are at their nadir, and their non-delegation concerns (Br.
30) are misplaced.
Second, the President is supplementing the inadmissibility grounds in Section
1182(a) based on additional findings under Sections 1182(f) and 1185(a)(1).
Plaintiffs argue that because of “Congress’s detailed visa system,” Br. 22, the
President may not “override” specific provisions in the INA, Br. 28. But Congress
has expressly authorized the President to impose additional limitations under
Sections 1182(f) and 1185(a)(1). For example, in Abourezk v. Reagan, supra, and
Allende v. Shultz, 845 F.2d 1111 (1st Cir. 1988), the courts held that a certain ground
for visa ineligibility under Section 1182(a) required particular harm from the alien’s
activities in the United States rather than from their mere entry alone, but also held
that the President nevertheless could rely on the entry-based harms to deny entry
under Section 1182(f). Abourezk, 785 F.2d at 1049 n.2, 1053-60; Allende, 845 F.2d
at 1116-18, 118 n.13, 1119. Indeed, the Abourezk Court noted that President Reagan
had issued a Proclamation doing so for the entry of officers and employees of the
Cuban Communist Party. 785 F.2d at 1049 n.2. Likewise, President Reagan later
excluded all Cubans in response to a diplomatic dispute, and President Carter had
previously authorized the exclusion of all Iranians in response to the Iranian hostage
crisis. See Gov’t Br. 37-38. These historic examples flatly refute plaintiffs’ atextual
arguments (Br. 31-32) that Section 1182(f)’s reference to “class[es] of aliens” does
13

not apply to entire nations, or that the President may take action under Sections
1182(f) and 1185(a)(1) only to address topics that Congress has not already
addressed.
Plaintiffs likewise err in arguing that Section 1182(f) is limited to “foreign
policy crises,” Br. 32, or to “discrete, narrow, often fast-developing problems,” Br.
40. Those restrictions appear nowhere in the statute. Nor is the President’s Section
1182(f) authority confined to “limited” periods of time, Br. 31; to the contrary, it
permits suspension of entry “for such period as he shall deem necessary.” Plaintiffs’
proposal invites judicial second-guessing of the President’s discretion, without
manageable criteria as to whether a particular foreign-policy problem is a true
“crisis,” is sufficiently “narrow,” or has an appropriately “limited” duration. In any
event, though, the findings in the Proclamation amply demonstrate the critical need
for the entry restrictions.
b.

Plaintiffs also argue that the Proclamation conflicts with the “basic

operation of Congress’s visa system,” Br. 33, because, in their view, individualized
vetting and screening through the visa application process is sufficient to address
security concerns, Br. 34-36. Plaintiffs’ argument fails for multiple reasons.
First, the fact that Congress generally requires individualized vetting and
screening for visa applicants does not dictate how the President must treat nationals
of countries with information-sharing inadequacies, and other risk factors, that
14

undermine the reliability of that vetting and screening process. There is no reason
to assume that Congress would have wanted to foreclose Presidential action and
depend solely on the ability of individual consular officers to repeatedly recognize
the problem of inadequate information-sharing by those foreign governments. A
systemic problem warrants a systemic solution, especially since such solutions are
more likely to induce improvements by the foreign country.
Second, the President did not need to identify specific “vetting failures,” Br.
40, in order to act on the risk of potential failures and the desire to improve
information-sharing. Again, plaintiffs’ argument assumes that the President must
focus only on individuals and individualized vetting, but Section 1182(f) permits the
President to restrict the entry of “any class of aliens” whose entry would be
detrimental to the interests of the United States, and authorizes the President to make
his own judgment about the adequacy of existing restrictions on entry.
Third, as the district court correctly held (JA 1050), plaintiffs are wrong to
argue that the Proclamation conflicts with the Visa Waiver Program (VWP), Br. 3436. For the specific purpose of the VWP’s facilitation of travel, Congress has
excluded a country if it fails any one of several criteria, see 8 U.S.C. § 1187(c), but
Congress was not addressing the more general issue of what to do about a country
that fails multiple criteria.

Although Congress decided that the appropriate

consequence for countries that fail to meet a single statutory criterion is that their
15

nationals must obtain visas, that narrow decision in no way forecloses the President’s
determination that a different consequence is appropriate for countries that fail so
many criteria that their information-sharing practices and other risk factors are
collectively inadequate—namely, certain of their nationals shall be denied entry,
unless a waiver applies. Likewise, the 2015 amendments to the VWP addressed the
distinct problem of nationals of VWP countries who were either dual nationals of,
or had traveled to, certain countries that posed heightened terrorism concerns yet
could travel without a visa based on their VWP-country passport; the Proclamation,
by contrast, addresses the problem of nationals traveling on passports from countries
that have inadequate information-sharing practices or present other risk factors. In
any event, even if plaintiffs were correct that the VWP and the Proclamation were
sufficiently “close” in the topics they address, the fact that Congress addresses a
specific situation in one provision of the INA does not foreclose the President from
supplementing those provisions through his authority under Section 1182(f).
2.

The Proclamation
1152(a)(1)(A)

Does

Not

Violate

Section

Plaintiffs do not dispute that Section 1152(a)(1)(A)’s nationalitydiscrimination ban is limited to the issuance of visas to otherwise-eligible aliens by
consular officers and other government officials, whereas Sections 1182(f) and
1185(a)(1) address the President’s authority to deem aliens ineligible to enter based

16

on the national interest. That is fatal to plaintiffs’ statutory challenge given the
judicial obligation to read the statutes in harmony rather than in conflict.
Plaintiffs argue that it would make “no sense” to ban nationalitydiscrimination in the issuance of immigrant visas if nationality nevertheless could
be used as a basis to suspend entry. Br. 26. But this overlooks the obvious difference
between Congress’s constraining the ability of inferior Executive Branch officers to
allocate immigrant visas among the set of aliens that Congress and the President
allow to enter the country, and Congress’s constraining the President’s ability to
exclude aliens from entering based on national-security and foreign-policy concerns.
The latter would raise serious separation-of-powers concerns, and would necessarily
imply the unlawfulness of President Reagan’s order barring Cuban nationals and
President Carter’s order authorizing a ban on Iranian nationals. See Gov’t Br. 3738. Plaintiffs hypothesize that such restrictions are permissible under Section
1152(a)(1)(A) in case of “bilateral emergencies,” Br. 27, but that atextual exception
is created out of whole cloth in a failed effort to avoid the unacceptable consequences
that follow from plaintiffs’ interpretation.

And again, plaintiffs provide no

administrable standard for determining what constitutes an “emergency,” or why
that category does not include the inadequate information-sharing practices and
other risk factors that the Acting DHS Secretary has identified for the President.

17

Furthermore, even if Sections 1182(f) and 1185(a)(1) were thought to conflict
with Section 1152(a)(1)(A), the former would control. Contrary to plaintiffs’
suggestion (Br. 26-27), if Section 1152(a)(1)(A) were a general ban on nationality
discrimination concerning immigrant visas, it still would not supplant the more
specific, and thus controlling, grants of authority in Sections 1182(f) and 1185(a)(1)
for the President to restrict entry of aliens to protect the national interest, particularly
in light of the serious constitutional concerns that a contrary construction would
raise. Gov’t Br. 36.
At a minimum, any possible violation of Section 1152(a)(1)(A) could not
justify the district court’s injunction. At most, the government would be required to
issue immigrant visas to aliens whose entry would nevertheless remain suspended.
And Section 1152(a)(1)(A) certainly could not require the government to issue visas
or allow entry for nonimmigrants, as even plaintiffs do not dispute.
B.

The Proclamation Is Consistent With The Establishment
Clause
1.

The Proclamation Is Constitutional Under Mandel
Because It Relies On Facially Legitimate And Bona
Fide Reasons

Plaintiffs fail to refute the government’s showing that Mandel prohibits
“looking behind” a facially legitimate and bona fide reason.

Because the

Proclamation’s entry restrictions are rationally based on valid reasons, as the district
court essentially recognized, see JA 1055, plaintiffs’ Establishment Clause challenge
18

fails under Mandel. Gov’t Br. 40-42; see IRAP, 857 F.3d at 588 (noting that Mandel
governs constitutional challenges to the exclusion of aliens abroad).1
Plaintiffs argue (Br. 41-42) that Mandel’s reference to a “bona fide” reason
authorizes a subjective pretext inquiry. But plaintiffs offer no response to our
showing (Gov’t Br. 41) that interpreting “bona fide” to require anything more than
objective rationality is foreclosed by Mandel, where the Court explicitly rejected
“look[ing] behind” the government’s stated reason for denying a waiver of
inadmissibility, 408 U.S. at 770, and declined Justice Marshall’s invitation to take
“[e]ven the briefest peek behind the Attorney General’s reason for refusing a
waiver,” which he asserted was a “sham.” Id. at 778.
Plaintiffs next argue, relying on Justice Kennedy’s concurrence in Din, 135 S.
Ct. at 2141, that “an affirmative showing of bad faith” justifies further scrutiny of
the government’s stated rationale. Br. 42. But that misreads the Din concurrence,
as the government explained (Gov’t Br. 41-42), and plaintiffs fail to refute.
Critically, Justice Kennedy merely noted that a plaintiff might be able to seek
“additional factual details” where the government fails to offer any factual basis for

1

Plaintiffs suggest (Br. 42 n.19) that Mandel should not govern because the
Establishment Clause is a “structural[]” limitation on government action. The
Supreme Court’s jurisprudence does not countenance that kind of Establishment
Clause exceptionalism. See, e.g., Valley Forge, 454 U.S. at 485-86 (The
Establishment Clause “establishes a norm of conduct which the Federal Government
is bound to honor—to no greater or lesser extent than any other inscribed in the
Constitution.”).
19

a consular officer’s decision. 135 S. Ct. at 2141. When the government does identify
a factual basis, though, Justice Kennedy properly recognized that that is the end of
the analysis under Mandel. See id. at 2140 (citation of a rationally applicable
statutory ground of inadmissibility is sufficient to establish that the government
“relied upon a bona fide factual basis”).
Plaintiffs also argue (Br. 43) that the Supreme Court’s recent description of
Mandel’s standard as authorizing only “minimal scrutiny (rational basis review),”
Sessions v. Morales-Santana, 137 S. Ct. 1678, 1693 (2017), does not foreclose their
position, because that case cited Fiallo v. Bell, 430 U.S. 787 (1977), which involved
a challenge to a congressional policy with no explanation of bad faith. But Fiallo
recited and applied Mandel’s “legitimate and bona fide reason” standard. Id. at 79495. And Fiallo acknowledged but declined to consider allegations of bad faith—
namely, that the statutory distinctions at issue were “based on an overbroad and
outdated stereotype concerning the relationship of unwed fathers and their
illegitimate children” rather than any legitimate purpose. Id. at 799 n.9.
2.

The Proclamation Is Valid Under McCreary

The Proclamation would be consistent with the Establishment Clause even if
the Court were to ignore its facially legitimate and bona fide justification and look
for “bad faith” under plaintiffs’ view of Mandel or for a primary religious purpose
or effect under McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005).
20

Plaintiffs fail to refute the critical features of the Proclamation that the government’s
opening brief emphasized, and their efforts nevertheless to equate the Proclamation
with EO-2’s temporary entry suspension also fail.
a.

Plaintiffs have no meaningful response to the multi-agency review and

recommendation process, which makes clear that the Proclamation was not the
product of discriminatory animus. See Gov’t Br. 43, 47-48.
First, plaintiffs provide no basis to question the integrity of the Cabinet heads
and other government officials who conducted the review, formulated the
recommendation to the President, and assisted the President in considering those
recommendations; much less do plaintiffs provide evidence that those officials were
motivated by discriminatory animus.2
Second, plaintiffs repeat the district court’s erroneous conclusion that the
outcome of the review process “was at least partially pre-ordained” because EO-2
“required the Secretary of Homeland Security to ‘submit to the President a list of
countries recommended for inclusion in a Presidential proclamation that would
prohibit the entry of appropriate categories of foreign nationals.’” Br. 48; JA 1068.

2

Relying solely on extra-record Internet articles that are not before this Court on
appeal, plaintiffs question the motives of one official at DHS based on alleged prior
statements unrelated to the Proclamation. Br. 5-6 nn.2-3. Even if that single
subordinate were biased, plaintiffs fail to demonstrate that he somehow
compromised the independent judgment of multiple Cabinet officials, whose
motives plaintiffs have not challenged, or that he otherwise overbore the process
with his personal views.
21

As the government’s opening brief noted, though, this provision addressed only
“foreign nationals of countries that have not provided the information requested”; it
did not require the Secretary to conclude that any category of foreign nationals from
those countries would be “appropriate” for an entry suspension; and it in no way
constrained the Secretary’s discretion to determine what additional information
should be requested from any country in the first place. Gov’t Br. 48. Plaintiffs are
tellingly silent in response.
Third, plaintiffs speculate (Br. 47-50) that the Proclamation may diverge from
the Acting Secretary of Homeland Security’s recommendation in some unidentified
respect. But the President’s selection of countries from which to restrict entry
mirrors the Acting Secretary’s recommendation, see Procl. § 1(g)-(i), and the
Proclamation’s entry restrictions are “in accordance with” the Acting Secretary’s
recommendations, see id. § 1(h)(iii); see also Procl., pmbl. (noting that the
President’s determinations as reflected in the Proclamation were made “on the basis
of recommendations from the Secretary of Homeland Security and other members
of my Cabinet”). There is no basis to suggest any material difference between the
recommendation and the Proclamation.
b.

Plaintiffs also fail to counter our showing that the Proclamation’s

careful tailoring of substantive entry restrictions makes clear that they are not the
product of anti-Muslim bias. See Gov’t Br. 43-45.
22

For example, plaintiffs offer no explanation for why the Proclamation, if it
were intended to discriminate against Muslims, would have omitted two Muslimmajority countries (Sudan and Iraq) from the seven countries from which EO-2 or
its predecessor suspended entry.

Similarly, plaintiffs do not explain why the

Proclamation would have added only one new Muslim-majority country (Chad,
which is only 52% Muslim), and two non-Muslim-majority countries (Venezuela
and North Korea). Plaintiffs assert that the inclusion of Venezuela and North Korea
will have “little practical consequence,” Br. 45, but, even if that is so (which courts
are ill equipped to second-guess), it simply underscores the good faith of the agency
officials who applied their religion-neutral criteria consistently. Nor do plaintiffs
offer any explanation for why the Proclamation would have provided exemptions
for all or some nonimmigrant visa applicants from the Muslim-majority countries of
Somalia, Chad, Libya, Yemen, and Iran.
Citing an Internet article, plaintiffs contend that the Proclamation is a religious
gerrymander because it “ban[s] more Muslims and exempt[s] more non-Muslims
than its ‘baseline’ criteria * * * would dictate.” Br. 45. But the author of this article
erroneously assumed that failure of any one of nine criteria in the baseline renders a
country inadequate under the Proclamation, when instead the Acting Secretary of
Homeland Security determined adequacy based on all nine criteria collectively.
Procl. §§ 1(c), (e), 2; see also U.S. Dep’t of Homeland Security, Fact Sheet: The
23

President’s Proclamation on Enhancing Vetting Capabilities and Processes for
Detecting Attempted Entry into the United States by Terrorists or Other PublicSafety

Threats,

https://www.dhs.gov/news/2017/09/24/fact-sheet-president-s-

proclamation-enhancing-vetting-capabilities-and-processes.
c.

Plaintiffs also seek to impugn the integrity of the Proclamation based

on various similarities between the Proclamation and its predecessor Executive
Orders, but that attempt fails. For instance, it is unsurprising that, as Plaintiffs note
(Br. 47), the multi-agency review process culminated in a recommendation to
include under the Proclamation many of the same countries included in EO-2 and its
predecessor: after all, five of those countries (Iran, Libya, Somalia, Syria, Yemen)
were previously identified by Congress or the Executive Branch as posing
heightened terrorism-related concerns based on criteria that the agencies likewise
deemed relevant to their review and recommendation.

Compare 8 U.S.C.

§§ 1187(a)(3), (a)(12)(A), (a)(12)(D), (c)(2)(C)-(F), with Procl. § 1(c).
Nor is the Proclamation unconstitutional because, as plaintiffs further
emphasize (Br. 49), it relies on many of the same criteria that were present in EO-2.
The criteria that overlap are all religion-neutral and reflect compelling nationalsecurity interests, similar to the criteria that Congress and other Presidents have
relied on in the past. See Gov’t Br. 49 (noting, for example, that Iran “regularly fails
to cooperate with the United States Government in identifying security risks” and
24

“is the source of significant terrorist threats”) (quoting Procl. § 2(b)(i)). The fact
that serious national-security risks are posed by some Muslim-majority nations
cannot prevent the government from addressing those problems, especially after the
kind of extensive, multi-agency review process that occurred here.
Plaintiffs (Br. 50-51) seek to minimize those threats, but in so doing ignore
the bedrock point that courts are generally “ill equipped to determine the[]
authenticity and utterly unable to assess the[] adequacy” of the Executive’s “reasons
for deeming nationals of a particular country a special threat.” Reno v. AmericanArab Anti-Discrimination Committee, 525 U.S. 471, 491 (1999) (AAADC).
Plaintiffs’ individual criticisms also fall short in their own right. For instance, they
rely on opinions of former national-security officials, but those officials were not
part of the comprehensive worldwide review and evaluation process that led to the
Proclamation. The draft Department of Homeland Security reports that plaintiffs
cite likewise predate that review, and also do not reflect the views of the thenSecretary.
Plaintiffs also take issue (Br. 47) with the “indefinite” duration of the
Proclamation’s entry restrictions, but contrary to their suggestion, indefinite does
not mean “permanent.”

The Proclamation requires periodic review of the

restrictions, Procl. § 4, and “encourage[s] the countries to work with the United
States to address [identified] inadequacies and risks so that the restrictions and
25

limitations imposed by this proclamation may be relaxed or removed as soon as
possible,” id. § 1(h). As the government explained in its opening brief (at 37-38),
the entry restrictions imposed by President Carter and President Reagan were, if
anything, more indefinite in scope.
d.

Finally, plaintiffs’ reliance (Br. 51-52) on statements by the President

does not establish that the Proclamation was the product of anti-Muslim bias. As
the government’s opening brief explained (at 52), the statements primarily reflect an
intent to protect the United States from the threat of terrorism by nationals from
countries that pose heightened risks, and in any event cannot disable the President
from adopting the Proclamation’s religion-neutral restrictions in accordance with the
national-security and foreign-policy recommendations of his Cabinet. Plaintiffs fail
to acknowledge those key points, which distinguish the Establishment Clause cases
they cite, see Br. 45-46, 51-55, all of which involved either explicit religious
expression or discriminatory laws that lacked any valid secular purpose. For
example, plaintiffs cite McCreary, supra, which involved a Ten Commandments
display at a county courthouse, but make no attempt to refute our explanation for
why that case is inapposite. Gov’t Br. 45-46. Conversely, plaintiffs fail to address
McGowan, supra, which is relevant and confirms that the Proclamation has a valid
secular purpose and effect. Gov’t Br. 46-47.

26

III.

The Balance Of Harms Weighs Strongly Against Preliminary
Relief
The President has suspended the entry of aliens whose entry he has determined

would be detrimental to the interests of the United States, exercising his broad
constitutional and statutory authority. There is no “more compelling” interest than
the security of the Nation, Haig v. Agee, 453 U.S. 280, 307 (1981), and the interest
in combatting terrorism “is an urgent objective of the highest order,” Holder v.
Humanitarian Law Project, 561 U.S. 1, 28 (2010). Plaintiffs simply evade these
harms by ignoring the prospect at the preliminary-injunction stage that the
Proclamation will ultimately be upheld as lawful. Br. 56-57.
Plaintiffs also do not dispute that an injunction should extend no further than
is necessary to redress plaintiffs’ own injuries. Gov’t Br. 56. Plaintiffs contend that
it would be “difficult” to tailor the injunction to their own alleged injuries, Br. 57,
but there would be little difficulty in tailoring an injunction to identified aliens whose
exclusion imposes concrete, irreparable injury on plaintiffs.
It follows a fortiori that, contrary to plaintiffs’ cross-appeal arguments (Br.
59-60), the injunction against the Proclamation should not be extended beyond
foreign nationals with a credible claim of a bona fide relationship with a person or
entity in the United States, under the Supreme Court’s stay of the EO-2 injunctions
in Trump v. IRAP, 137 S. Ct. 2080 (2017). Plaintiffs make the remarkable assertion
that they will suffer irreparable harm from the exclusion of aliens with whom they
27

lack any relationship at all, but their argument rests on the abstract “condemnation”
injuries that this Court already held are not cognizable at all without additional
“personal contact.” Supra p. 2. Indeed, when a district court in Hawaii recently
enjoined enforcement of the Proclamation as to aliens without a credible claim of a
bona fide relationship, the Ninth Circuit promptly stayed that portion of the
injunction. See Hawaii v. Trump, No. 17-17168, Order (Nov. 13, 2017).
In arguing for broader injunctive relief, plaintiffs observe that the
Proclamation will last longer than EO-2 and thus there is greater alleged injury even
to those relationships that do not meet the standard established in the Supreme
Court’s stay decision. Br. 59-60. But such injuries concerning mere “friends and
acquaintances” and other “insufficiently formal” connections (Br. 58-59) pale in
comparison to the harm to the government’s national-security and foreign-policy
interests, especially since that harm is significantly greater under the Proclamation,
which now reflects a multi-agency review and recommendation acted on by the
President.
Finally, plaintiffs assert that the district court’s injunction defined “bona fide
relationships” differently than the Supreme Court did. Br. 63. But the district court
simply repeated verbatim the Supreme Court’s language, stated that IRAP and HIAS
clients are not covered by the injunction “absent a separate bona fide relationship,”
and left for individualized determination whether a given relationship qualifies. JA
28

1080 (emphasis added). And to the extent the district court’s injunction is unclear,
which the government believes it is not, plaintiffs can seek (and in fact have sought)
clarification in district court.
CONCLUSION
For these reasons and those stated in the Government’s first cross-appeal
brief, the district court’s preliminary injunction should be reversed. At a minimum,
it should be vacated except for those identified aliens whose exclusion would impose
a cognizable, irreparable injury on plaintiffs. And in no circumstance should the
injunction be extended to reach aliens without a bona fide relationship to a person
or entity in the United States.

29

Respectfully submitted,

NOEL J. FRANCISCO
Solicitor General

CHAD A. READLER
Principal Deputy Assistant Attorney
General

JEFFREY B. WALL
EDWIN S. KNEEDLER
Deputy Solicitors General

STEPHEN M. SCHENNING
Acting United States Attorney
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
/s/ Sharon Swingle
SHARON SWINGLE
H. THOMAS BYRON III
LOWELL V. STURGILL JR.
Attorneys, Appellate Staff
Civil Division, Room 7241
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
[phone]

NOVEMBER 2017

30

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-face requirements of
Federal Rule of Appellate Procedure 32(a)(5) and the type-volume limitations of
Rule 32(a)(7)(B). The brief contains 6,544 words, excluding the parts of the brief
excluded by Fed. R. App. P. 32(f).

/s/ Sharon Swingle
Sharon Swingle

CERTIFICATE OF SERVICE
I hereby certify that on November 22, 2017, I electronically filed the foregoing
brief 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/ Sharon Swingle
Sharon Swingle