Intl. Refugee Assistance v. Donald J. Trump

Filing 5

MOTION 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 for stay pending appeal.. Date and method of service: 10/20/2017 ecf. [1000178180] [17-2231, 17-2232, 17-2233] Lowell Sturgill [Entered: 10/20/2017 08:09 PM]

Nos. 17-2231 (L), 17-2232, 17-2233 (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 & 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 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)
(8:17-cv-00361-TDC)
[Caption continued on inside cover]
MOTION OF DEFENDANTS-APPELLANTS FOR AN EMERGENCY STAY
PENDING EXPEDITED APPEAL AND ADMINISTRATIVE STAY
NOEL J. FRANCISCO
Solicitor General
JEFFREY B. WALL
EDWIN S. KNEEDLER
Deputy Solicitors General

CHAD A. READLER
Acting Assistant Attorney General
STEPHEN M. SCHENNING
Acting United States Attorney
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
DOUGLAS N. LETTER
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]

IRANIAN ALLIANCES ACROSS BORDERS; JANE DOE #1; JANE DOE #2; JANE DOE #3; JANE
DOE #4; JANE DOE #5; JANE #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 Commission 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. 17-2232
(8:17-cv-02921-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. 17-2233
(1:17-cv-02969-TDC)

INTRODUCTION
The district court enjoined worldwide a Proclamation issued by the President
of the United States pursuant to his broad constitutional and statutory authority to
suspend or restrict the entry of aliens abroad when he deems it in the Nation’s
interest. The Proclamation—“Enhancing Vetting Capabilities and Processes for
Detecting Attempted Entry into the United States by Terrorists or Other Public
Safety Threats,” 82 Fed. Reg. 45,161 (Sept. 27, 2017)—was issued after a global
review by the Department of Homeland Security (DHS) and the Department of State
of foreign governments’ information-sharing practices and risk factors, culminating
in a recommendation that the President restrict entry of certain nationals of eight
countries that have inadequate practices or otherwise present heightened risks. The
Proclamation imposes country-specific restrictions that, in the President’s judgment,
would most effectively “encourage cooperation” in information sharing and “protect
the United States until such time as improvements occur.” Id. at 45,164.
The district court nevertheless ruled that, despite this thorough review process
and tailored substantive measures, the Proclamation is motivated by religious
animus and constitutes nationality discrimination under 8 U.S.C. § 1152(a). That
ruling threatens the ability of this and future Presidents to address national security
threats. It is also wrong: the alleged flaws in the prior entry suspension do not apply
to the Proclamation, which was issued after a worldwide, religion-neutral review by

multiple Cabinet officials whose good faith has never been questioned, and which
imposes only tailored restrictions on Muslim-majority as well as non-Muslim
majority nations. The district court’s conclusion that this is insufficient to refute
religious discrimination threatens to disable the President permanently from
addressing immigration-related national-security risks in countries that pose the
greatest concern. Nor does the Immigration and Nationality Act (INA) prohibit the
President from imposing nationality-specific restrictions on entry to the United
States, as past Presidents have also done. In any event, plaintiffs’ challenge to the
exclusion of aliens abroad is not justiciable.
The remaining stay factors support staying the injunction pending expedited
appeal. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The balance of harms tips
sharply in favor of a stay: Barring effectuation of the President’s judgment that
restricting entry for certain nationals of eight countries is warranted to protect the
Nation’s safety threatens the interests of the government and the public (which
merge, Nken v. Holder, 556 U.S. 418, 435 (2009)). By contrast, plaintiffs have not
identified any cognizable and irreparable injury that they personally would incur if
the restrictions on entry take effect, especially during the brief period of an expedited
appeal. Nor do the equities support the district court’s worldwide injunction. This
Court should stay the injunction pending final disposition of the appeal of its validity
and scope, and grant an administrative stay until it rules on this request.

BACKGROUND
1. On March 6, 2017, the President issued Executive Order No. 13,780,
82 Fed. Reg. 13,209 (Mar. 9, 2017) (“EO-2”). EO-2 directed the Secretary of DHS
to conduct a global review of whether foreign governments provide adequate
information about their nationals seeking U.S. visas. EO-2 § 2(a). EO-2 directed
the Secretary to report findings to the President, after which nations identified as
deficient would be encouraged to alter their practices, prior to the Secretary
recommending appropriate entry restrictions on any nations that remained
inadequate or presented other special circumstances. Id. § 2(d)-(f).
During that review, EO-2 temporarily suspended the entry of foreign nationals
from six countries that had been identified by Congress or the Executive as
presenting terrorism-related concerns. See id. § 2(c). The district court below, and
another district court, preliminarily enjoined that entry suspension, IRAP v. Trump,
241 F. Supp. 3d 539 (D. Md. 2017); Hawaii v. Trump, 245 F. Supp. 3d 1227 (D. Haw.
2017), and were affirmed in relevant part, IRAP v. Trump, 857 F.3d 554 (4th Cir.
2017) (en banc); Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) (per curiam).
The Supreme Court granted certiorari, and partially stayed the injunctions
pending review, Trump v. IRAP, 137 S. Ct. 2080 (2017). After EO-2’s entry
suspension expired, the Supreme Court vacated this Court’s ruling as moot. Trump
v. IRAP, 2017 WL 4518553.

2. On September 24, 2017, the President issued the Proclamation, which is
the product of a comprehensive review of vetting and screening procedures. First,
the Secretary of DHS, in consultation with the Secretary of State and the Director of
National Intelligence, identified the information needed from foreign governments
to enable the United States to make informed decisions about foreign nationals
applying for visas. Procl. § 1(c). DHS, in coordination with the Department of State,
collected data on, and evaluated, nearly 200 countries, and identified each country’s
information-sharing practices and risk factors. Id. § 1(d). The Department of State
engaged with foreign governments to encourage them to improve their performance,
which yielded significant gains.

Id. § 1(f).

The Secretary of DHS then

recommended that the President impose entry restrictions on certain nationals from
eight countries; after further Executive Branch consultation, the President acted in
accordance with that recommendation. Id. § 1(h), (i).
For countries that refuse to cooperate regularly with the United States (Iran,
North Korea, and Syria), the Proclamation suspends entry of all nationals, except for
Iranian nationals seeking non-immigrant student (F and M) and exchange-visitor (J)
visas. Procl. §§ 2(b)(ii), (d)(ii), (e)(ii). For countries that are valuable counterterrorism partners but have information-sharing deficiencies (Chad, Libya, and
Yemen), the Proclamation suspends entry only of nationals seeking immigrant visas
and non-immigrant business, tourist, and business/tourist (B-1, B-2, B-1/B-2) visas.

Id. §§ 2(a)(ii), (c)(ii), (g)(ii).

For Somalia, which has significant identity-

management deficiencies and is unable to effectively control all of its territory, the
Proclamation suspends entry of nationals seeking immigrant visas and requires
additional scrutiny of nationals seeking nonimmigrant visas. Id. § 2(h)(ii). And for
Venezuela, which refuses to cooperate in information-sharing but for which
alternative means of obtaining information are available, the Proclamation suspends
entry of government officials “involved in screening and vetting procedures,” and
“their immediate family members,” on nonimmigrant business or tourist visas. Id.
§ 2(f)(ii). The Proclamation provides for case-by-case waivers, id. § 3(c), and
ongoing review to determine whether restrictions should remain in place. Id. § 4.
3. The district court preliminarily enjoined enforcement of Section 2’s
restrictions against any alien with a bona fide relationship to a U.S. person or entity,
except nationals of Venezuela and North Korea. Order. Although agreeing with the
government that the Proclamation falls within the President’s broad authority to
restrict the entry of aliens under 8 U.S.C. § 1182(f), the district court concluded that
the entry restrictions likely violate the Establishment Clause, and that the immigrant
entry restrictions likely violate 8 U.S.C. § 1152(a)(1)’s ban on nationality
discrimination in the issuance of immigrant visas. Opinion 52-85, 42-48.

ARGUMENT
I.

The Balance Of Harms Weighs Strongly In Favor Of A Stay
A.

The District Court’s Injunction Imposes Serious, Irreparable
Harm On The Government And The Public

1.

The

district

court’s

injunction

barring

enforcement

of

the

Proclamation’s entry restrictions undermines the President’s constitutional and
statutory authority to safeguard the Nation’s security and intrudes on the political
branches’ constitutional prerogatives.

“[N]o governmental interest is more

compelling than the security of the Nation,” Haig v. Agee, 453 U.S. 280, 307 (1981),
and “the Government’s interest in combatting terrorism is an urgent objective of the
highest order,” Holder v. Humanitarian Law Project (HLP), 561 U.S. 1, 28 (2010) .
The President’s defense of these interests warrants the utmost deference, particularly
where, as here, he acts based on a “[p]redictive judgment” regarding specific
national-security risks. Dep’t of the Navy v. Egan, 484 U.S. 518, 529 (1988); see
HLP, 561 U.S. at 33-35.
The injunction also causes irreparable injury by invalidating an action taken
at the height of the President’s authority. “[T]he President has unique responsibility”
over “foreign and military affairs.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S.
155, 188 (1993). Rules “concerning the admissibility of aliens” also “implement[]
an inherent executive power.” United States ex rel. Knauff v. Shaughnessy, 338 U.S.
537, 542 (1950). And because “the President act[ed] pursuant to an express * * *

authorization of Congress, his authority is at its maximum, for it includes all that he
possesses in his own right plus all that Congress can delegate.” Zivotofsky ex rel.
Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083-84 (2015).
The district court’s injunction overriding the President’s judgment thus
necessarily imposes irreparable harm. Even a single State “suffers a form of
irreparable injury” “[a]ny time [it] is enjoined by a court from effectuating statutes
enacted by representatives of its people.” Maryland v. King, 567 U.S. 1301, 1303
(2012) (Roberts, C.J., in chambers); see, e.g., O Centro Espirita Beneficiente Uniao
de Vegetal v. Ashcroft, 314 F.3d 463, 467 (10th Cir. 2002). A fortiori, this injunction
imposes irreparable injury on the President and the public given “the singular
importance of [his] duties” to the entire Nation. Nixon v. Fitzgerald, 457 U.S. 731,
751 (1982).
B.

A Brief Stay Pending Expedited Appeal Would Not Impose
Any Substantial Harm On Plaintiffs

Plaintiffs, by contrast, would suffer no cognizable harm, much less irreparable
injury, from a stay. The only concrete, cognizable harm plaintiffs allege is that the
Proclamation will prevent family members from entering the United States. But
delay in entry alone does not amount to irreparable harm, particularly for the brief
period while the Court considers the appeal on the merits. Moreover, visa processing
times vary widely, and until the aliens abroad meet otherwise-applicable visa
requirements and seek and are denied a waiver, they have not received final agency

action, and plaintiffs’ claimed harms are too “remote” and “speculative” to merit
injunctive relief. Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812
(4th Cir. 1992).
II.

The Government Is Likely To Prevail On The Merits
A.

Plaintiffs’ Claims Are Not Justiciable

1.

It is a bedrock separation-of-powers principle that “the power to

exclude or expel aliens [is] a fundamental sovereign attribute exercised by the
Government’s political departments largely immune from judicial control.” Fiallo
v. Bell, 430 U.S. 787, 792 (1977). “[I]t 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.” Knauff, 338 U.S. at 543.
Courts have distilled from this deeply rooted principle of nonreviewability the
rule that the denial or revocation of a visa for an alien abroad “is not subject to
judicial review * * * unless Congress says otherwise.” Saavedra Bruno v. Albright,
197 F.3d 1153, 1159 (D.C. Cir. 1999). Congress has not provided for judicial review
of decisions to exclude aliens abroad, e.g., 6 U.S.C. § 236(f ), and has forbidden
“judicial review” of visa revocations (subject to a narrow exception inapplicable to
aliens abroad), 8 U.S.C. § 1201(i).
Furthermore, the conclusion is “unmistakable” from history that “the
immigration laws ‘preclude judicial review’ of []consular visa decisions.” Saavedra

Bruno, 197 F.3d at 1160. The lone time the Supreme Court held that certain aliens
(only those physically present in the United States) could seek review of exclusion
orders under the Administrative Procedure Act (APA), Congress abrogated the ruling
and limited those aliens to the habeas remedy. See id. at 1157-62. Because even an
alien present in the United States cannot invoke the APA to obtain review, a fortiori
neither can aliens abroad nor U.S. citizens acting at their behest. See 5 U.S.C.
§§ 701(a)(1), 702(1).
In holding to the contrary, the district court invoked Abourezk v. Reagan,
785 F.2d 1043 (D.C. Cir. 1986), aff’d by an equally divided Court, 484 U.S. 1 (1987).
Opinion 38-39. As the D.C. Circuit subsequently recognized in Saavedra Bruno,
however, Abourezk “rested in large measure” on an INA provision that was
subsequently amended to “make[] clear that district courts do not have general
jurisdiction over claims arising under the immigration laws and that their jurisdiction
extends only to actions brought by the government.” 197 F.3d at 1164.1
The district court also stated that the principle of nonreviewability of the
exclusion of aliens applies only to a challenge to “individual visa decisions by
consular officers,” not to a Presidential proclamation restricting entry of nationals
from eight countries. Opinion 36-37. Although the principle is applied most

The district court also invoked Sale, supra, but the Supreme Court there
rejected plaintiffs’ claims on the merits without addressing reviewability.
1

frequently to challenges to decisions by consular officers adjudicating visa
applications, it makes no sense to limit review in that context while permitting
review of the President’s decision to restrict entry of classes of aliens. Consular
nonreviewability is grounded in the “firmly established principle” that the power to
exclude aliens is “inherent in sovereignty, necessary for maintaining normal
international relations and defending the country,” and to “be exercised exclusively
by the political branches of government.” Saavedra Bruno, 197 F.3d at 1158-59.
Those considerations apply with greater force to broad policy decisions made by the
President as compared to individualized decisions by a consular official. See
Harisiades v. Shaughnessy, 342 U.S. 580, 584-91 (1952) (relying on these
considerations in rejecting broad challenges to immigration statute).
2.

Although Congress has not expressly authorized judicial review of

Executive decisions to exclude aliens abroad, it has not “clear[ly]” “preclude[d]
judicial review” for persons asserting violations of their own constitutional rights.
Webster v. Doe, 486 U.S. 592, 603 (1988). The exclusion of aliens typically raises
no constitutional questions because aliens abroad lack any constitutional rights
regarding entry. See Knauff, 338 U.S. at 542. However, the Supreme Court has
twice engaged in limited judicial review when a U.S. citizen contended that the
denial of a visa to an alien abroad violated the citizen’s own constitutional rights.
Kleindienst v. Mandel, 408 U.S. 753 (1972) (alleged First Amendment right to

receive information); Kerry v. Din, 135 S. Ct. 2128 (2015) (alleged due process right
to reunite with spouse).
But plaintiffs here lack standing to bring an Establishment Clause challenge
to the exclusion of aliens abroad. Putting aside that plaintiffs have identified no visa
application that has yet been denied based on the Proclamation, plaintiffs’ claimed
injury resulting from the exclusion of aliens is not cognizable because it does not
stem from an alleged infringement of their own constitutional rights.
In McGowan v. Maryland, 366 U.S. 420 (1961), the Supreme Court held that
individuals who are indirectly injured by alleged religious discrimination against
others generally may not sue, because they have not suffered violations of their own
rights. Id. at 429-30. The plaintiffs, employees of a store subject to a Sunday-closing
law, lacked standing to challenge the law on free-exercise grounds because they
“d[id] not allege any infringement of their own religious freedoms,” id. at 429, and
had standing for an Establishment Clause challenge only because they suffered
“direct * * * injury, allegedly due to the [law’s] imposition on them of the tenets of
the Christian religion,” id. at 430-31. Here, plaintiffs are not directly subject to the
Proclamation and thus are not asserting violations of their own constitutional rights.
They instead allege indirect injuries from the Proclamation’s application to others—
the individual plaintiffs’ family members and the organizational plaintiffs’ clients—
who themselves have no constitutional rights. Contrary to the district court’s

conclusion, Opinion 32, plaintiffs’ alleged third-party injuries are insufficient to
invoke the limited review for first-party constitutional claims afforded in Mandel
and Din.
The district court also reasoned that the Proclamation injures plaintiffs by
sending a message of “hostility to Muslims.” Opinion 33. This “message” injury is
not cognizable either; the Supreme Court has “ma[de] clear” that “the stigmatizing
injury often caused by racial [or other invidious] discrimination * * * accords a basis
for standing only to ‘those persons who are personally denied equal treatment’ by
the challenged discriminatory conduct.” Allen v. Wright, 468 U.S. 737, 755 (1984).
The same rule applies to Establishment Clause claims. Valley Forge Christian Coll.
v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485-86 (1982).
To be sure, a plaintiff may suffer a cognizable injury where he himself has been
“subjected to unwelcome religious exercises” or “forced to assume special burdens
to avoid them.” Id. at 486-487 n.22. But the Proclamation says nothing about
religion and does not subject plaintiffs to any religious exercise.
The D.C. Circuit correctly has rejected the notion that a putative
Establishment Clause plaintiff may “re-characterize[]” an abstract injury flowing
from “government action” directed against others as a personal injury from “a
governmental message [concerning] religion” directed at the plaintiff. In re Navy
Chaplaincy, 534 F.3d 756, 764 (2008) (Kavanaugh, J.), cert. denied, 556 U.S. 1167

(2009).

Permitting that approach would “eviscerate well-settled standing

limitations” in cases like Valley Forge. Id.
In its now-vacated ruling addressing EO-2, this Court relied on the
combination of EO-2’s purported message and its adverse effect on one plaintiff in
delaying the entry of his spouse to find standing. See IRAP, 857 F.3d at 583-86 &
n.11. That reasoning, however, erroneously conflated the question whether an
individual has suffered an injury-in-fact from an alleged Establishment Clause
violation with the question whether the violation was of the individual’s own
Establishment Clause rights. Under the Supreme Court’s decisions, a plaintiff must
allege a violation of his own constitutional rights to invoke the limited review
afforded by Mandel. Because plaintiffs have not done so, their constitutional claims
are not reviewable.
B.

The Proclamation Does Not Violate 8 U.S.C. § 1152(a)(1) or the
Establishment Clause

The government is likely to prevail on the merits of its appeal because the
district court erred in holding that the Proclamation’s entry-restrictions likely
contravene 8 U.S.C. § 1152(a)(1) and the Establishment Clause.
1. The President’s Proclamation was issued pursuant to his inherent Article II
authority to exclude aliens, see Knauff, 338 U.S. at 543, and his broad statutory
authority under 8 U.S.C. §§ 1182(f) and 1185(a)(1). Section 1182(f) authorizes the
President to “suspend the entry of all aliens or any class of aliens as immigrants or

nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be
appropriate,” whenever he finds that their entry “would be detrimental to the
interests of the United States.” Section 1185(a) similarly authorizes the President to
restrict the entry of aliens into the United States, or to set “such reasonable rules,
regulations, and orders,” and “such limitations and exceptions as the President may
prescribe.” By their plain terms, these provisions confirm the expansive discretion
afforded to the President to restrict entry of aliens. See Abourezk, 785 F.2d at 1049
n.2; Allende v. Shultz, 845 F.2d 1111, 1117-1118 & n.13 (1st Cir. 1988). The
Supreme Court has deemed it “perfectly clear that [Section] 1182(f ) * * * grants the
President ample power to establish a naval blockade that would simply deny illegal
Haitian migrants the ability to disembark on our shores.” Sale, 509 U.S. at 187.
Historical practice likewise confirms the breadth of, and deference owed to,
the President’s exercise of authority under Sections 1182(f) and 1185(a)(1). For
decades, Presidents have restricted entry pursuant to those statutes based on
nationality. See Opinion 45-46 (discussing President Carter’s 1979 exclusion of
Iranians in response to the Iran Hostage Crisis and President Reagan’s 1986 decision
to bar entry to Cuban nationals in retaliation for Cuba’s suspension of an
immigration agreement and facilitation of illegal migration to the United States).
Courts found no impediment to upholding these actions. See, e.g., Nademi v. INS,
679 F.2d 811, 813-14 (10th Cir. 1982); Yassini v. Crosland, 618 F.2d 1356, 1362 (9th

Cir. 1980).
Here, the President acted within his authority under Sections 1182(f) and
1185(a) by restricting the entry of aliens from eight countries that share information
inadequately or present other risk factors, both to improve information-sharing and
to protect against the risks of insufficient information until such improvements
occur.
2. The district court nevertheless held that the entry restrictions violate 8
U.S.C. § 1152(a)(1), which prohibits discrimination on the basis of nationality in the
“issuance of an immigrant visa.” But as the district court itself previously (and
correctly) recognized, “barring entry to the United States based on nationality
pursuant to the President's authority under § 1182(f) does not appear to run afoul of
the provision in § 1152(a) barring discrimination in the issuance of immigrant visas.”
IRAP, 241 F. Supp. 3d at 554 (emphasis added). Rather than reading Section 1152(a)
to conflict with Sections 1182(f) and 1185(a), the provisions should be read in
harmony, Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976). The
statutory provisions operate in different spheres: Sections 1182(f) and 1185(a) limit
the universe of individuals eligible to receive visas, and Section 1152(a) prohibits
discrimination on the basis of nationality within that universe of eligible individuals.
Reading them to conflict would render invalid prior proclamations by President
Reagan and President Carter.

Harmonizing the statutes is particularly appropriate where the President is
imposing restrictions on the entry of aliens to influence foreign governments’
behavior.

As the Ninth Circuit acknowledged in Hawaii, the President may

permissibly distinguish among “classes of aliens on the basis of nationality” when
warranted “as retaliatory diplomatic measures responsive to government conduct
directed at the United States.” 859 F.3d at 772 n.13. This Court has upheld
nationality-based restrictions in similar circumstances. See Malek-Marzban v. INS,
653 F.2d 113, 116 (4th Cir. 1981). Construing Section 1152(a)(1) to disable the
President from taking action against the nationals of a foreign state for foreign affairs
or nationality-security reasons would also raise serious constitutional concerns.
The district court itself acknowledged that Sections 1182(f) and 1185(a)
empower the President to deny entry based on nationality, Opinion 58-60, and
further that such denial is permissible in some circumstances notwithstanding
Section 1152(a)(1). Opinion 45. It distinguished past Presidential actions on the
ground that they were of “limited duration, such as during a specific urgent national
crisis or public health emergency.” Opinion 45-46 (discussing President Reagan’s
Cuban entry restriction and President Carter’s Iranian entry restriction). That
distinction, however, has no textual basis in Section 1152(a). Nor is it supported by
the underlying facts; if anything, those prior suspensions were more indefinite in
scope than the Proclamation. President Reagan directed that the suspension of entry

of Cuban immigrants under Section 1182(f) “shall remain in effect until the
Secretary of State, in consultation with the Attorney General, determines that normal
migration procedures with Cuba have been restored.” 51 Fed. Reg. 30,470, 30,471
(Aug. 22, 1986). Although President Carter’s Order in response to the Iranian
hostage crisis did not itself deny or revoke visas, he explained upon its issuance that
the State Department would “invalidate all visas issued to Iranian citizens” and
would not reissue visas or issue new visas “except for compelling and proven
humanitarian reasons or where the national interest of our own country requires.”
Jimmy Carter, Sanctions Against Iran: Remarks Announcing U.S. Actions (Apr. 7,
1980), http://www.presidency.ucsb.edu/ws/?pid=33233; see also See 44 Fed. Reg.
67,947 (Nov. 26, 1979). The Proclamation, by contrast, requires periodic review of
the continuing need for the restrictions and establishes a process for recommending
that they be terminated if the countries “have improved their identity-management
and information-sharing protocols and procedures” or the interests of the United
States no longer require the suspensions and restrictions on entry. Procl. § 4.
3. The district court also erred in holding that the Proclamation’s entry
restrictions violate the Establishment Clause. The Proclamation is constitutional
regardless of whether the Court applies Mandel’s limited standard of review that
there need only be a “facially legitimate and bona fide reason” for excluding aliens
abroad, 408 U.S. at 770, or the primary “secular purpose” standard applicable in the

domestic context under Establishment Clause precedent, e.g., McCreary County v.
ACLU of Kentucky, 545 U.S. 844, 862 (2005). Both the process by which the
Proclamation was issued, and its substance, foreclose any suggestion that it was the
product of bad faith or religious animus.
The Proclamation is the result of a months-long worldwide review and process
of diplomatic engagement combining the efforts of multiple government agencies
and recommendations from the Secretary of DHS to the President regarding whether
and what entry restrictions were necessary to address the inadequacies identified and
to encourage countries to cooperate with the United States to address those
inadequacies. The President acted in accordance with these recommendations.
Neither plaintiffs nor the district court have even suggested, let alone demonstrated,
that the Cabinet secretaries and numerous other government officials involved in the
review process that culminated in those recommendations were acting in bad faith
or harbored anti-Muslim animus.
Furthermore, the Proclamation neither mentions nor draws any distinction
based on religion, and its “operation,” Church of Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 535 (1993), confirms that it is religion-neutral.

The

Proclamation establishes entry restrictions that are tailored to the particular
information-sharing deficiencies and terrorism risks in each nation. Of the seven
countries from which EO-2 and its predecessor suspended entry, the Proclamation

omits two Muslim-majority countries (Sudan and Iraq). The President concluded
that Sudan met the Secretary of DHS’s baseline and that, although Iraq fell below
the baseline, entry restrictions were not warranted in light of “the close cooperative
relationship between the United States and the democratically elected government
of Iraq, the strong United States diplomatic presence in Iraq, the significant presence
of United States forces in Iraq, and Iraq’s commitment to combating the Islamic State
of Iraq and Syria (ISIS).” Procl. § 1(g). The Proclamation added entry restrictions
for three new countries, two of which are non-Muslim-majority (Venezuela and
North Korea) and the third of which has an approximately 48% non-Muslim
population

(Chad).

Africa:

Chad,

https://www.cia.gov/library/publications/the-world-factbook/geos/cd.html.

The

See

CIA,

The

World

Factbook:

five other Muslim-majority countries included were all previously identified by
Congress or the Executive Branch as posing terrorism-related concerns. See 8
U.S.C. § 1187(a)(12).
Moreover, the Proclamation tailors the entry restrictions to the particular
country, allowing students and exchange visitors from Iran, while restricting only
business and tourist non-immigrant entry for nationals of Libya, Yemen, and Chad,
and imposing no exclusions on non-immigrant entry for Somali nationals. This
particular selection of countries and restrictions is nonsensical as a supposed
“Muslim ban,” but is readily explicable as a tailored means of encouraging

individual countries to improve inadequate information-sharing and of protecting
against security risks in the interim.
The district court nevertheless reasoned that the process preceding the
Proclamation could not “cure[] any taint from EO-2” because “the outcome of the
DHS Review was at least partially pre-ordained.” Opinion 76. That conclusion is
fundamentally at odds with EO-2’s provisions governing that review, which direct
the Secretary of DHS to establish the criteria by which to identify “whether, and if
so what, additional information will be needed from each foreign country,” EO-2
§ 2(a) (emphasis added), and to provide a list of any “countries recommended for
inclusion in a Presidential proclamation that would prohibit the entry of appropriate
categories of foreign nationals of countries that have not provided the information
requested,” id. § 2(e) (emphasis added). Nothing in those provisions cabined the
independent judgment of the Secretary of DHS—whose good-faith has never been
called into question—in deciding whether and which countries to recommend for
appropriate entry restrictions.
The district court also inferred anti-Muslim bias because the Proclamation
supposedly treats countries with similar deficiencies differently, in a manner that is
asserted to have “a disproportionate impact on majority-Muslim nations” and to
manifest animus rather than “flow from the objective factors considered in the
review.” Opinion 78. But the seemingly different treatment is instead explained by

different circumstances, as outlined in the Proclamation. For example, although
Somalia generally satisfies the information-sharing baseline, it not only “has
significant identity-management deficiencies” but “stands apart from other countries
in the degree to which its government lacks command and control of its territory.”
Procl. § 2(h). Likewise, although Venezuela’s “government is uncooperative in
verifying whether its citizens pose national security or public-safety threats,” it “has
adopted many of the baseline standards identified by the Secretary of Homeland
Security” and the United States has “alternative sources for obtaining information to
verify the citizenship and identify of nationals from Venezuela.” Id. § 2(f). These
country-specific differences, rather than animus, are the self-evident basis for the
differing treatment.
The district court also stated that the country-based entry restrictions in the
Proclamation are “unprecedented,” distinguishing prior country-based entry bans on
the basis that they applied to “a single nation” “in response to a specific diplomatic
dispute.” Opinion 79. But the President determined that each of the eight countries
presented specific risks requiring nationality-based entry restrictions, just as the Iran
and Cuba restrictions were the result of specific problems relating to those countries.
The fact that particular countries refuse to share adequate information to enable
consular officials to discover if their nationals justifies nationality-based restrictions
that are commensurate with the problem.

Finally, the district court held that the President’s prior campaign statements
bear on the Proclamation because the President has never repudiated them. Opinion
81. But neither McCreary nor the other cases relied on by the district court hold that
religiously neutral government action must remain subject to the taint of prior
conduct or statements absent an affirmative statement of disavowal. To the contrary,
in McGowan, the Supreme Court held that a Sunday closing law’s secular
exemptions were sufficient to prove that the law no longer was motivated by its
traditional religious purpose of observing the Sabbath, even though the law still
contained expressly religious references. 366 U.S. at 445. Here, the process of
review and recommendation by government officials whose motives have never
been questioned, and the limited restrictions and express exclusions for Muslimmajority nations, make clear that the Proclamation implements a good-faith, secular
national-security objective.

Yet under the district court’s approach, until the

President issues a disavowal of sufficient (and unknowable) sincerity and force, he
is unable to regulate immigration from Muslim-majority countries despite known
and identified risks to our national security. That is not, and should not be, the law.
C.

The Global Injunction Is Improper

At a minimum, the district court erred because Article III and equitable
principles require that the injunction be limited to redressing plaintiffs’ own
cognizable, irreparable injuries. Lewis v. Casey, 518 U.S. 343, 357 (1996); Madsen

v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). The global injunction is
overbroad, notwithstanding the district court’s exclusion of “[i]ndividuals lacking a
credible claim of a bona fide relationship with a person or entity in the United
States.” Order 2. Although the Supreme Court so narrowed the injunctions against
EO-2, see Trump, 137 S. Ct. at 2088-89, the Court did not conclude that similar relief
was required in all circumstances, and carefully tailored its stay to the equities in the
case. This case is very different for the reasons described, and the equitable
balancing requires following the ordinary rule of plaintiff-specific relief.
CONCLUSION
For these reasons, defendants respectfully request that, pending final
disposition of the appeal, this Court stay the preliminary injunction, in whole or at
least as to all aliens except those identified aliens whose exclusion would impose a
cognizable, irreparable injury on plaintiffs. In addition, defendants respectfully
request that, pending a ruling on a stay pending appeal, the Court grant an immediate
administrative stay.

Respectfully submitted,

NOEL J. FRANCISCO
Solicitor General
JEFFREY B. WALL
EDWIN S. KNEEDLER
Deputy Solicitors General

OCTOBER 2017

CHAD A. READLER
Acting Assistant Attorney General
STEPHEN M. SCHENNING
Acting United States Attorney
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
DOUGLAS N. LETTER
/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]

CERTIFICATE OF COMPLAINCE
I hereby certify that this motion complies with the type-face requirements of
Fed. R. App. P. 32(a)(5) and the type-volume limitations of Fed. R. App. P.
27(d)(2)(A). This motion contains 5,196 words, excluding the parts of the motion
excluded by Fed. R. App. P. 27(d)(2) and 32(f).

/s/ Sharon Swingle
Sharon Swingle

CERTIFICATE OF SERVICE
I hereby certify that on October 20, 2017, I electronically filed the foregoing
motion 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