Intl. Refugee Assistance v. Donald J. Trump

Filing 44

RESPONSE/ANSWER by Arab American Association of New York, Jane Doe #2, John Does #1 & 3, HIAS, Inc., International Refugee Assistance Project, Muhammed Meteab and Middle East Studies Association of North America, Inc. in 17-2231, 17-2240 to Motion for stay pending appeal [5]. Nature of response: in opposition. [17-2231, 17-2232, 17-2233, 17-2240] Omar Jadwat [Entered: 10/27/2017 04:58 PM]

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

INTERNATIONAL REFUGEE
ASSISTANCE PROJECT, et al.,
Plaintiffs-Cross-Appellants,
v.

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

IRAP PLAINTIFFS-CROSSAPPELLANTS’ OPPOSITION
DONALD TRUMP, et al.,
TO MOTION FOR AN
EMERGENCY STAY PENDING
Defendants-Appellants. APPEAL
______________________________

IRANIAN ALLIANCES
ACROSS BORDERS, et al.,
Plaintiffs-Appellees,
v.
DONALD TRUMP, et al.,
Defendants-Appellants.

______________________________

EBLAL ZAKZOK, et al.,
Plaintiffs-Appellees,
v.
DONALD TRUMP, et al.,
Defendants-Appellants.

TABLE OF CONTENTS

INTRODUCTION .......................................................................................... 1
ARGUMENT .................................................................................................. 3
I. The Government Identifies No Harm Warranting a Stay. ................... 3
II. The Government Is Unlikely to Prevail on the Merits. ........................ 7
A. EO-3 Violates the Establishment Clause. ....................................... 7
B. EO-3 Violates the Immigration and Nationality Act. ................... 13
III. The Plaintiffs and the Public Interest Would Be Harmed by a Stay. . 20
CONCLUSION ............................................................................................. 23

i

INTRODUCTION
In the government’s prior appeal in this case, the en banc court
concluded that “the Government’s asserted national security interest” was “a
post hoc, secondary justification for an executive action rooted in religious
animus and intended to bar Muslims from this country.” Int’l Refugee
Assistance Project v. Trump, 857 F.3d 554, 603 (4th Cir. 2017) (en banc), as
amended (May 31, 2017), as amended (June 15, 2017), vacated as moot,
2017 WL 4518553 (U.S. Oct. 10, 2017). That executive action—Executive
Order 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017) (“EO–2”)—“injure[d]
Plaintiffs and in the process permeate[d] and ripple[d] across entire religious
groups, communities, and society at large.” Id. at 604.
The district court has now found the ban provision of Presidential
Proclamation 9645, 82 Fed. Reg. 45161 (Sept. 24, 2017) (“EO-3”) likewise
unconstitutional.

It issued a preliminary injunction preventing the

government from applying EO-3’s ban to persons with bona fide
relationships with individuals or entities in the United States. 1 Op. 88-89.
The government’s motion asks this Court to stay the preliminary injunction
so that the government can ban persons with meaningful ties to persons and
institutions in the United States—even though the government has lost on
1

The district court did not enjoin the ban as applied to North Koreans and
the set of Venezuelan nationals barred by EO-3. Op. 89.
1

the merits as to EO-3 in the district courts in Maryland and Hawai‘i and
even though it has been continually prohibited from applying any iteration of
its ban to such persons.
The government’s motion recycles the same argument that it has made
time and again without success: that its abstract interests warrant a stay,
regardless of the harms its ban would impose on the plaintiffs and many
others. Once again, the government asks for an emergency stay without
demonstrating any actual urgency, and despite acting in ways that
demonstrate the opposite. Once again, the government asks the Court to
allow it to enforce an order that would rewrite the Immigration and
Nationality Act and implement the President’s promise to ban Muslims.
And once again, the government trivializes the concrete irreparable harms
that the ban would cause the plaintiffs.
A stay is even less appropriate now than it was at previous points in
this litigation, when this Court and the Supreme Court denied similar
requests. The severity of the new ban is greater; EO-3 would indefinitely
separate the plaintiffs’ families and harm the organizational plaintiffs. And
this time, a vacated but highly persuasive en banc decision of this Court
strongly supports the district court’s judgment.

2

It is the government’s burden to justify the extraordinary remedy of a
stay pending appeal. The government cannot meet that heavy burden, and
the Court should deny the motion.
ARGUMENT
The government “bears the burden of showing that the circumstances
justify” a stay pending appeal. Nken v. Holder, 556 U.S. 418, 434 (2009).
The Court considers the traditional factors: “(1) whether the stay applicant
has made a strong showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” Id. at 426 (internal
quotation marks omitted). A stay is warranted “only in those extraordinary
cases where the applicant is able to rebut the presumption that the decisions
below—both on the merits and on the proper interim disposition of the
case—are correct.”

Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980)

(Brennan, J., in chambers).
I.

The Government Identifies No Harm Warranting a Stay.
The government has presented no evidence to justify a stay; instead,

as before, it has presented only abstract interests and conclusory assertions.
The government has not acted with the level of urgency claimed in its papers.
3

And EO-3’s own waiver provisions confirm that individualized visa vetting
procedures are sufficient to protect national security.
1. The government’s interest in immediately enforcing the ban does
not justify a stay while the appeal is expeditiously litigated on the merits.
Since EO-1 was issued, nearly nine months have elapsed without any ban
being enforced against the individuals who are protected by the preliminary
injunction. In significant part, that is because the Supreme Court refused to
stay the EO-2 injunction with respect to individuals with credible claims of
bona fide relationships with U.S. persons or entities. Trump v. Int’l Refugee
Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam); see App. Stay,
No. 16A1190 at 1, 3-4, 33-37 (U.S. filed June 1, 2017); see also Mot. Stay,
No. 17-1351, Doc. 35 at 2-10 (4th Cir filed Mar. 24, 2017); IRAP, 857 F.3d
at 606 (denying stay). That is the same class of persons protected by the
injunction at issue here. The government has pointed to no new harms that
would now justify the extraordinary remedy of a stay.
2. The government primarily argues that the preliminary injunction
“undermines” the President’s authority and “intrudes” on his “prerogatives.”
Stay Mot. 8. But the en banc Court previously rejected “the notion that the
President, because he or she represents the entire nation, suffers irreparable
harm whenever an executive action is enjoined.” IRAP, 857 F.3d at 603.
4

Nor was EO-3 issued “at the height of the President’s authority.”
Stay Mot. 8. As explained below, the President’s power in this case is at its
“lowest ebb,” because it both exceeds his statutory authority and conflicts
with Congress’s non-discrimination mandate. Youngstown Sheet & Tube
Co., 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
3. The government’s stay application fails to identify any concrete
injury to the government that would occur in the absence of a stay. But in
seeking a stay, the government cannot simply offer ipse dixit. See, e.g.,
IRAP, 137 S. Ct. at 2088 (recognizing that harms to plaintiffs and those like
them were “sufficiently weighty and immediate to outweigh the
Government’s interest in enforcing” the prior ban); IRAP, 857 F.3d at 603
(“We are . . . unmoved by the Government’s rote invocation of harm to
‘national security interests’ as the silver bullet that defeats all other asserted
injuries”).2
And the record evidence indicates that no such harm exists.

A

bipartisan group of forty-nine former national security officials concluded
that “[i]ssuing a new preliminary injunction against Travel Ban 3.0 would

2

The government relied in the district court on a new foreign relations
rationale for the ban as an “independent” reason that it would be harmed by
an injunction. Response Br. 23, D. Ct. Doc. No. 212; see also id. at 44. But
the stay motion (correctly) does not assert that the government is irreparably
harmed on that basis. Mot. 8-9.
5

not jeopardize national security.” Joint Declaration of Former National
Security Officials ¶ 14, D. Ct. J.R. 774, Doc. No. 205-1. Similarly, a DHS
report concluded that “country of citizenship is unlikely to be a reliable
indicator of potential terrorist activity.” Id. ¶ 10, D. Ct. J.R. 771, Doc. No.
205-1 (citation and internal quotation marks omitted).
In fact, the evidence that does exist indicates that EO-3 “would
undermine the national security of the United States” by disrupting national
security partnerships with other nations, endangering intelligence sources,
causing humanitarian harm, and supporting the recruitment narrative of
terrorist organizations. Id. ¶¶ 13-15, D. Ct. J.R. 773-74, Doc. No. 205-1.
And EO-3 itself demonstrates that allowing individuals from the
banned countries to enter the United States on visas does not pose an
unacceptable security risk. Under EO-3’s own terms, many such persons
would be allowed to enter. See EO-3 § 3(a)(ii) (holders of visas issued
before effective date); id. § 3(b)(iv) (dual nationals). The Order’s waiver
provision likewise confirms that the government is already capable of
determining whether an individual’s “entry would [] pose a threat to national
security.” Id. § 3(c)(i)(B); see also Op. 54, 86.
4. The government also has not acted with the kind of urgency typical
of a party that claims to be suffering irreparable harm. See Quince Orchard
6

Valley Citizens Ass’n, Inc. v. Hodel, 872 F.2d 75, 80 (4th Cir. 1989)
(movant’s delay negates irreparable harm).

EO-3 itself delayed

implementation of the ban for 24 days with respect to persons covered by the
preliminary injunction, from its issuance on September 24 to October 18. 82
Fed. Reg. 45161. Moreover, according to the schedule set forth in EO-2, the
government could have issued EO-3 as early as August 28, see Hawai‘i v.
Trump, Order Granting Consent Motion to Issue Mandate, No. 17-15589,
Doc. No. 316 (9th Cir. Filed June 19, 2017); EO-2 § 2(b) (20 days allowed
for first report), 2(d) (50 days allowed for second report), but instead waited
until the very last day of the 90-day EO-2 ban period to do so. And in the
litigation over EO-2, the government proposed a briefing schedule to the
Supreme Court that would leave the merits of the case unresolved for at least
four months, knowing that the injunction of the prior ban might remain in
place during that time. App. Stay, No. 16A1190 at 40 (U.S. filed June 1,
2017). This lack of dispatch undercuts the government’s claim that it needs
a stay while this case is expeditiously briefed.
II.

The Government Is Unlikely to Prevail on the Merits.
A. EO-3 Violates the Establishment Clause.
This Court, sitting en banc, concluded that EO-2 spoke “with vague

words of national security, but in context drip[ped] with religious intolerance,
7

animus, and discrimination.” IRAP, 857 F.3d at 572 (emphasis added). The
relevant context—including the President’s and his advisors’ statements
before and after his election calling for a Muslim ban in the guise of
nationality restrictions, the ban’s disproportionate impact on Muslims, the
explicit religious discrimination in the first version of the ban, and the weak,
historically anomalous, and post hoc justifications offered for it—
demonstrated that the primary purpose of the ban was to make good on the
President’s promise to ban Muslims from the United States. Id. at 591-92,
594.
The district court applied this same analysis and concluded that the
newest iteration was “the inextricable re-animation of the twice-enjoined
Muslim ban.” Op. 83. The government has failed to meet its heavy burden
of showing a likelihood of success on the merits of this appeal.
The government’s principal contention is that “the process by which
the Proclamation was issued”—namely a review yielding a report and
recommendation from DHS—“foreclose[s] any suggestion that it was the
product of bad faith or religious animus.” Mot. 20. But the Supreme Court
has repeatedly rejected that kind of reasoning. “[T]he world is not,” after all,
“made brand new every morning.” McCreary County v. ACLU of Kentucky,
545 U.S. 844, 866 (2005) (citing Santa Fe Independent School District v.
8

Doe, 530 U.S. 290, 308 (2000)). So, as the district court observed, “[w]hen
faced with allegations of a successive Establishment Clause violation, a
court must . . . not lapse into the role of ‘an absentminded objective
observer,’ but must instead remain ‘familiar with the history of the
government’s action and competent to learn what history has to show.’” Op.
71-72 (quoting McCreary, 545 U.S. at 866).
The district court’s injunction rests on a careful assessment of that
history.

As the court found, the “underlying architecture of the prior

Executive Orders and the Proclamation is fundamentally the same.” Op. 75.
Far from abandoning the promise of a ban on entry from Muslim-majority
countries, EO-3 “doubles down on it” by making the ban potentially
permanent. Op. 76. And, as the court observed, many of the “specific
findings about banned countries” from EO-2 are recycled as support for EO3.

Op. 77.

As with EO-2, “[n]umerous distinguished former national

security officials have attested to the unique nature of this travel ban and the
lack of a discernible national security rationale for it . . . .” Op. 77-79.
Ultimately, “where EO-1 and EO-2 were each likely to violate the
Establishment Clause, and the third iteration, the Proclamation, was issued
close on their heels—within nine and six months, respectively—it is
‘common sense’ that the Proclamation stands in their shadow.” Op. 72
9

(citing McCreary, 545 U.S. at 855, 869-72, 874); see also McCreary, 545
U.S. at 866 (warning against looking only to “the latest news about the last
in a series of governmental actions”).
Given this history and context, the district court correctly found that
the fact that a DHS report apparently recommended some travel restrictions
on the countries banned in EO-3 cannot “foreclose” the courts from finding
a constitutional violation, especially when EO-2 required DHS to
recommend a country-based ban. See Op. 76 (“the outcome of the DHS
Review was at least partially pre-ordained”); EO-2 § 2(e) (ordering that the
Secretary “shall submit to the President a list of countries recommended for
inclusion in a Presidential proclamation that would prohibit the entry of
appropriate categories of foreign nationals”) (emphases added). And if that
were not clear enough, the President again and again underlined what he
expected, calling for further bans before EO-2’s review process was even
underway. Op. 82.3

3

There are also troubling indications that White House pressure may have
warped the agency recommendations. Reports indicate that the parallel
process for reaching a recommendation regarding the new annual cap on
refugees—which both EO-1 and EO-2 addressed—was “purely political”
and “corrupt.” Jonathan Blitzer, How Stephen Miller Single-Handedly Got
the U.S. to Accept Fewer Refugees, The New Yorker (Oct. 13, 2017),
https://www.newyorker.com/news/news-desk/how-stephen-miller-singlehandedly -got-the-us-to-accept-fewer-refugees; see also D. Ct. J.R. 123-25,
Doc. No. 95-10; id. at 607, 615, Doc. No. 205-1.
10

Moreover, even by the government’s account, it was the President—
who this Court held acted in bad faith with regard to EO-2—who “crafted”
EO-3’s ban provisions “in his judgment.” Response Br., D. Ct. Doc. No.
212 at 1, 8. The ban does not even say what DHS recommended or how it
chose and applied its criteria, and the government has refused to disclose
publicly any part of the report or recommendations.

All a reasonable

observer knows is that some type of “restrictions and limitations” on the
banned countries (and perhaps others) were recommended. EO-3 § 1(g).
And, whatever the recommendations were, EO-3 admits a disconnect
between the agency findings and EO-3 itself: Even though Somalia (which
is more than 99 percent Muslim) satisfies the government’s baseline criteria,
for example, it was banned anyway; even though Venezuela (whose
population is less than half a percent Muslim) fails to meet the baseline, it
was effectively exempted. EO-3 §§ 2(f), 2(h); Op. 77-79.
The government’s other objections to the district court’s conclusions
are similarly baseless. It argues that the ban operates in a facially neutral
way, Mot. 20, but this Court previously concluded that facial neutrality is
“not dispositive,” IRAP, 857 F.3d at 595. The inclusion of two non-Muslim
countries this time around is little more than a “litigating position,”
McCreary, 545 U.S. at 871: The narrow ban on Venezuela, and the near11

total lack of visa applicants from North Korea, 4 mean those bans will have
“little practical consequence,” Op. 74. And the fact that the ban operates
differently as to different banned countries does not demonstrate that the
ban’s primary purpose is secular. Mot. 21-22. Notably, individuals with
immigrant visas—who on entry become lawful permanent residents—are
banned from all the Muslim-majority countries (but not from Venezuela).
Ultimately, the government resorts—as in the prior appeal—to alarm
about other actions and other Presidents. Mot. 4, 24. But the Establishment
Clause requires just the kind of common sense the district court applied.
This President repeatedly promised a Muslim ban using nationality as a
proxy, never repudiated that promise, and has signed three historically
unprecedented

orders

banning

hundreds

of

millions

of

people,

overwhelmingly Muslim, based on nationality this year. Cf. McGowan v.
Maryland, 366 U.S. 420, 444-45 (1961) (holding that religious purpose from
“centuries ago” had abated). The district court was right to look at the
context of the President’s action, and to conclude that the third ban shares
the purpose of the two earlier bans to which it is explicitly and inextricably
connected. See Op. 80.

4

See Op. at 74 (noting that “the ban on North Korea will, according to
Department of State statistics, affect fewer than 100 people”).
12

B. EO-3 Violates the Immigration and Nationality Act.
EO-3 also violates the Immigration and Nationality Act, both for the
specific reason found by the district court—that it violates the INA’s
prohibition on nationality discrimination in 8 U.S.C. § 1152(a)(1)(A)—and
because it exceeds the President’s authority under 8 U.S.C. §§ 1182(f) and
1185(a).
1. The district court correctly held that EO-3 violates the INA’s core
anti-discrimination mandate.

That mandate, enacted in the original

Immigration and Nationality Act of 1965, ended the national-origins quota
system, which had been designed to favor some ethnic groups and disfavor
others. President Johnson, in his signing statement, declared that “for over
four decades the immigration policy of the United States has been twisted
and has been distorted by the harsh injustice of the national origins quota
system.” Lyndon B. Johnson, Remarks at the Signing of the Immigration
Bill (Oct. 3, 1965). The INA therefore provides that “no person shall . . . be
discriminated in the issuance of an immigrant visa because of the
person’s . . . nationality.” 8 U.S.C. § 1152(a)(1)(A).
EO-3 resurrects the discriminatory national-origins quota system that
Congress abolished in 1965. It provides that nationals of Chad, Iran, Libya,
Syria, Yemen, and Somalia may not come to the United States “as
13

immigrants”—i.e., future lawful permanent residents and U.S. citizens—
indefinitely, solely because of their nationality. EO-3 § 2(a)-(h); see id. §
1(h)(ii) (explaining that the Order “distinguish[es] between the entry of
immigrants and nonimmigrants” and bars the use of immigrant visas). The
breadth of this nationality-based ban has no post-1965 parallel. It squarely
violates § 1152(a)(1)(A).

See IRAP, 857 F.3d at 635-38 (Thacker, J.,

concurring); Hawai‘i v. Trump, 859 F.3d 741, 776-79 (2017).
As the district court correctly held, it is irrelevant that EO-3 claims to
bar only “entry” using immigrant visas, not the issuance of those visas. Op.
44-45. First, the claim is wrong: The government has repeatedly admitted
that it will implement EO-3 “by denying visas.” Br. for the Petitioners,
IRAP v. Trump, Nos. 16-1436 & 16-1540, at 51-52. 5 Second, banning entry
to immigrant visa holders achieves the same effect as banning issuance of
the visas themselves, because a visa is effectively nullified if its holder is
categorically barred from entering the country. An indefinite immigrantvisa entry ban therefore achieves the precise result that § 1152(a) forbids.
The government’s response is a substanceless assertion that § 1182(f) allows
the President to “limit the universe of individuals eligible to receive
[immigrant] visas” on the basis of nationality, which is somehow distinct
5

The State Department itself describes EO-3 as a “Presidential Proclamation
on Visas.” D. Ct. J.R. 506, Doc. No. 205-1.
14

from discriminating in visa issuance on the basis of nationality. Stay Mot.
17.

The INA’s hard-won non-discrimination principle is not so easily

evaded.
There is no conflict between § 1152(a) and § 1182(f); as explained
below, the latter does not empower the President to override Congress’s
enacted policy judgments. But if there were, § 1152(a) would control. It is
later-enacted and more specific, in that it specifically addresses nationality
discrimination in the issuance of visas, while § 1182(f) is silent as to visa
issuance in general and discrimination in particular. See Radzanower v.
Touche Ross & Co., 426 U.S. 148, 153 & n.7 (1976).
2. More generally, EO-3 exceeds the President’s suspension authority
under 8 U.S.C. § 1182(f). Although the district court declined to enjoin EO3 on this ground, it is nonetheless an alternative basis for this Court to affirm
the injunction, which plaintiffs will brief more fully at the merits stage.
The government claims that § 1182(f) allows the President to override
Congress’s own enacted policy judgments—indeed, to rewrite any part of
the INA with the mere recitation of the statutory words themselves. But that
is contrary to our constitutional structure: The President may not “enact, to
amend, or to repeal statutes,” Clinton v. City of New York, 524 U.S. 417, 438
(1998), nor has Congress permitted him to do so. See Carlson v. Landon,
15

342 U.S. 524, 544 (1952) (holding that a delegation of immigration authority
was only permissible where “the executive judgment is limited by adequate
standards”); Kent v. Dulles, 357 U.S. 116, 129 (1958). The President must
therefore exercise his delegated authority consistent with the “declared
policy of Congress.” Mahler v. Eby, 264 U.S. 32, 40 (1924).
EO-3 upends numerous congressional policy choices. As discussed
above, it violates Congress’s prohibition against nationality-based visa
discrimination. It also formally rejects (while implicitly acknowledging the
efficacy of) the individualized visa vetting process Congress has designed.
EO-3 claims that its unprecedented bans are necessary to deny visas to
foreigners about whom the government “lacks sufficient information to
assess the risks they pose to the United States,” EO-3 § 1(h)(i), but does not
even acknowledge that existing law—the system Congress designed—
already requires consular officers to deny visas whenever they lack
sufficient information to negate any of the terrorism or public-safety grounds
of inadmissibility. 8 U.S.C. § 1361 (individual applicant’s burden to negate
inadmissibility); id. § 1182(a)(2) (criminal bars), (a)(3)(A)-(C), (F)
(terrorism bars); 22 C.F.R. § 40.6(a) (applicant’s burden). EO-3’s waiver
provisions only underscore the value of that system.

See EO-3 § 3(c).

Those provisions employ consular officials to make individual decisions, as
16

Congress did in the INA; they just replace the substantive standards that
Congress prescribed with those of the President’s choosing.
Relatedly, EO-3 rejects Congress’s method for encouraging countries
to share information, issue secure passports, and engage in other practices.
Since the 1980s, Congress has used the Visa Waiver Program—under which
certain foreign nationals can travel to the United States for certain short-term
nonimmigrant visits without applying for a visa—to spur other countries to
meet a list of conditions for participation in the program. See 8 U.S.C. §
1187. EO-3 imposes a fundamentally different sanction: If a country fails
to meet virtually the exact same criteria, see EO-3 § 1(c)(i)-(iii), its nationals
are banned from receiving most visas, including (for the Muslim-majority
countries) immigrant visas.
Finally, EO-3 overrides Congress’s conclusions about how to address
safety concerns relating to the very countries it bans. Congress considered
that issue in 2015 and decided that the appropriate response to those
concerns was to bar from the Visa Waiver Program individuals who had
visited or were dual nationals of the countries in question. See Pub. L. 114113, div. O, tit. II, § 203, 129 Stat. 2242 (codified at 8 U.S.C. §
1187(a)(12)); see also 4 Cong. Rec. H9051 (Dec. 8, 2015) (Rep. Miller)
(explaining that Congress would now require the individuals in question “to
17

apply for a visa and go through the formal visa screening process” in “an
abundance of caution”).

Notably, Congress rejected a proposal to ban

individuals from these countries. E.g., S. 2302, 114th Cong., introduced
Nov. 18, 2015. EO-3’s basic premise is that Congress got this wrong.
Based on the same security concerns for the same countries, it imposes the
far more drastic remedy that Congress expressly rejected.
No other President has used § 1182(f) to override Congress’s enacted
policy judgments, or suggested that it authorized such action. Rather, past
Presidents have invoked the statute to address detriments to the national
interest that Congress had not itself already addressed.

For example,

President Reagan’s 1986 suspension covering certain Cuban nationals
responded to a fast-developing diplomatic event that Congress had not
passed any statute to resolve. Proclamation No. 5,517, 51 Fed. Reg. 30,470
(Aug. 22, 1986). President Bush’s 1992 suspension of unauthorized entry
by sea likewise responded to an influx of unauthorized migrants for which
Congress had not provided a statutory solution. Exec. Order No. 12,807, 57
Fed. Reg. 23,133 (May 24, 1992). Other § 1182(f) suspensions have been
far narrower, reaching only a handful of individuals who had contributed to
specific and recent harmful situations abroad, none of which Congress had

18

addressed. See generally Kate M. Manuel, Executive Authority to Exclude
Aliens, 6-10, Cong. Res. Serv., Jan. 23, 2017 (listing § 1182(f) suspensions).
3. Finally, the government is wrong that its entry ban is immune from
statutory review. Stay Mot. 10-12. Both this Court and the Ninth Circuit
have already rejected the government’s troubling claim of unreviewable
authority. Hawai‘i, 859 F.3d at 768-69; IRAP, 857 F.3d at 587-88. The
Supreme Court itself reviewed a statutory claim against a § 1182(f)
suspension on the merits in Sale v. Haitian Centers Council, 509 U.S. 155,
163-66 (1993), despite the government’s lengthy argument—just like in this
case—that § 1182(f) suspensions were unreviewable, and that therefore the
Court was barred from even considering the merits. See U.S. Br. 13-18 &
n.9, 55-57, 1992 WL 541276, Reply Br. 1-4, 1993 WL 290141, Sale v.
Haitian Ctrs. Council, Inc. (No. 92-344).
The government invokes the doctrine of consular non-reviewability,
Stay Mot. 11-12, but as multiple Circuits have held, that doctrine applies
only to “a particular determination in a particular case,” not a “general”
policy. Int’l Union of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d
798, 801 (D.C. Cir. 1985); see Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir.
1997) (same); Mulligan v. Schultz, 848 F.2d 655, 657 (5th Cir. 1988) (same);
accord Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999)
19

(describing doctrine as applying to “a consular official’s decision to issue or
withhold a visa” (emphases added)); id. at 1160, 1162.
Those cases, along with Sale, belie the government’s invocation of a
broader “principle” of non-reviewability. Stay Mot. 11-12. The government
does not cite a single case recognizing any such principle, only a series of
cases reviewing admissions policies deferentially on the merits. See Fiallo v.
Bell, 430 U.S. 787, 792-99 (1977); Harisiades v. Shaughnessy, 342 U.S. 580,
583 & n.4 (1952); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537,
544-47 (1950) (reviewing two statutory claims against regulations
promulgated under a presidential proclamation).

As the en banc Court

explained, the notion that “this Court lacks the authority to review high-level
government policy of the sort here” is “a dangerous idea,” and the Supreme
Court “has not countenanced judicial abdication, especially where
constitutional rights, values, and principles are at stake.” IRAP, 857 F.3d at
587.
III.

The Plaintiffs and the Public Interest Would Be Harmed by a
Stay.

A stay would cause immediate irreparable harm to both the
organizational and individual plaintiffs. See Op. 84-85. As the district court
correctly found, EO-3 would harm the plaintiffs by separating them from
family members and denigrating their religion. The district court’s findings
20

of harm and tailoring of relief are entitled to significant deference. See
Aberdeen & Rockfish R. Co. v. Students Challenging Reg. Agency
Procedures, 409 U.S. 1207, 1218 (1972). In any event, both this Court and
the Supreme Court have rejected the government’s argument that the
plaintiffs are somehow not irreparably harmed by a ban that condemns their
religion and prolongs the separation from their families. See IRAP, 857 F.3d
at 602; id. at 611-12 (Keenan, J., concurring); IRAP, 137 S. Ct. at 2087-88.
1. Each day, each hour the ban is in effect, plaintiffs are told by the
highest levels of their government that they are less than full members of our
national community, and that they, their family members, and their
colleagues and friends are suspect because of their religion. Such a “loss of
First Amendment freedoms, for even minimal periods of time,
unquestionably

constitutes

irreparable

injury.”

Centro

Tepeyac

v.

Montgomery Cty., 722 F.3d 184, 191 (4th Cir. 2013) (quotation marks
omitted); see also IRAP, 857 F.3d at 602.
2. Likewise, the indefinite separation of the individual plaintiffs and
the organizational plaintiffs’ clients and members from their loved ones
would inflict grave irreparable harm. There is no damages remedy that can
compensate for one’s separation from a loved one being unlawfully
prolonged. The government’s blithe assertion, without citation, that delay in
21

reunification “does not amount to irreparable harm,” Mot. 9, is self-evidently
wrong.
The impacts on plaintiffs here are severe.

For example, Ms.

Khazaeli’s husband has terminal cancer, and her sister will likely never see
him again if EO-3 takes effect. Khazaeli Decl. ¶ 12, D. Ct. J.R. 465, Doc.
No. 205-1. AAANY has clients whose parents are stranded in dangerous
circumstances in Yemen and Syria, Issa-Ibrahim Decl. ¶ 21-22, D. Ct. J.R.
442, Doc. No. 205-1, and a client whose husband has not yet seen his
newborn son, id. ¶ 19, D. Ct. J.R. 441, Doc. No. 205-1. John Doe #4 finds
life without his wife “excruciatingly difficult,” and is unable to start a family
while they are separated. Doe #4 Decl. ¶¶ 6-7, D. Ct. J.R. 461, Doc. No.
205-1. John Doe #5’s mother fled Yemen and is stranded in Jordan, where
she cares for her mother, who has Alzheimer’s disease; the ban will prevent
her from obtaining medical care in the United States. Doe #5 Decl. ¶ 4, D.
Ct. J.R. 446-47, Doc. No. 205-1.
3. Finally, the Court should reject the government’s request to
partially stay the preliminary injunction by limiting it to the plaintiffs.
While the government expresses alarm at a “worldwide” or “global”
injunction, Mot. 3, 25, the Supreme Court approved of an injunction with the
same scope as the one at issue here. IRAP, 137 S. Ct. at 2088. This Court
22

likewise rejected the contention that the previous preliminary injunction
should be limited in this way. IRAP, 857 F.3d at 602.
“[T]he scope of . . . relief rests within [the district court’s] sound
discretion.” Dixon v. Edwards, 290 F.3d 699, 710 (4th Cir. 2002). The
district court’s decision to enjoin EO-3 nationwide was correct. As this
Court previously held, the nature of EO-3’s constitutional violations means
that “enjoining it only as to Plaintiffs would not cure the constitutional
deficiency,” IRAP, 857 F.3d at 605, because the unmistakable message of
governmental condemnation would remain. Moreover, the organizational
plaintiffs have employees, clients, and members located across the country,
making more limited relief impractical. Id. And because EO-3 exceeds the
President’s statutory authority, its bans “are invalid” as a categorical matter.
Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2449 (2014); see also
Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (explaining
that when courts hold government action unlawful, “the ordinary result”
under the APA “is that the rules are vacated—not that their application to the
individual petitioners is proscribed”).
CONCLUSION
The Court should deny the motion for a stay pending appeal.
Dated: October 27, 2017

Respectfully submitted,
23

/s/ Omar C. Jadwat
Omar C. Jadwat
Lee Gelernt
Hina Shamsi
Hugh Handeyside
Sarah L. Mehta
David Hausman
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Karen C. Tumlin
Nicholas Espíritu
Melissa S. Keaney
Esther Sung
National Immigration Law Center
3435 Wilshire Boulevard, Suite
1600
Los Angeles, CA 90010
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Justin B. Cox
National Immigration Law Center
PO Box 170208
Atlanta, GA 30317
Tel: [phone]
Fax: [phone]
[e-mail]

Cecillia D. Wang
Cody H. Wofsy
Spencer E. Amdur
American Civil Liberties Union
Foundation
39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Kathryn Claire Meyer
Mariko Hirose
International Refugee Assistance
Project
40 Rector Street, 9th Floor
New York, New York 10006
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

David Cole
Daniel Mach
Heather L. Weaver
American Civil Liberties Union
Foundation
915 15th Street NW
Washington, DC 20005

David Rocah
Deborah A. Jeon
Sonia Kumar
Nicholas Taichi Steiner
American Civil Liberties Union
24

Foundation of Maryland
3600 Clipper Mill Road, Suite 350
Baltimore, MD 21211
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

25

CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of October, 2017, I caused a
PDF version of the foregoing document to be electronically transmitted to
the Clerk of the Court, using the CM/ECF System for filing and for
transmittal of a Notice of Electronic Filing to all CM/ECF registrants.
Dated: October 27, 2017

Respectfully submitted,
/s/ Omar Jadwat
Omar C. Jadwat

CERTIFICATE OF COMPLIANCE
Pursuant to FRAP 32(g)(1), I hereby certify that the foregoing motion
complies with the type-volume limitation in FRAP 27(d)(2)(A). According to
Microsoft Word, the motion contains 5,110 words and has been prepared in a
proportionally spaced typeface using Times New Roman in 14 point size.
Dated: October 27, 2017

Respectfully submitted,
/s/ Omar Jadwat
Omar C. Jadwat