Intl. Refugee Assistance v. Donald J. Trump

Filing 50

REPLY by Daniel R. Coats, Department of State, Elaine C. Duke, John F. Kelly, Office of the Director of National Intelligence, Rex Tillerson, Donald J. Trump and United States Department of Homeland Security in 17-2231, Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson B. Sessions III, Rex Tillerson and Donald J. Trump in 17-2232, Elaine C. Duke, Rex Tillerson, Donald J. Trump, United States Department of Homeland Security and United States Department of State in 17-2233, 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 17-2240 to Response [44], Response [40].. [17-2231, 17-2232, 17-2233, 17-2240] Sharon Swingle [Entered: 10/30/2017 07:36 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 & 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]
REPLY OF DEFENDANTS-APPELLANTS IN SUPPORT OF MOTION 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 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. 17-2232
(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)
_________________________

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; REX TILLERSON, in his official capacity as Secretary of State;
DANIEL R. COATS, in his official capacity as Director of National Intelligence,
Defendants – Appellees.

_________________________
No. 17-2240
(8:17-cv-00361-TDC)
_________________________

The district court’s ruling enjoins worldwide a national-security and foreignrelations judgment by the President set forth in a Proclamation issued pursuant to
broad congressional authorization. That judgment represents the culmination of a
comprehensive, multi-agency review of foreign governments’ information-sharing
practices and risk factors and individualized findings that certain governments’
practices are deficient. Plaintiffs offer no persuasive reason to allow that injunction
effectively to nullify the Proclamation before this Court has an opportunity to rule
on the injunction’s validity and scope.
Both in denying that the injunction will cause the government and the public
irreparable harm and in assailing the Proclamation as the product of religious bias,
plaintiffs largely ignore the good-faith process that led to the Proclamation and the
tailored nature of its substantive restrictions. That review process identified specific,
concrete deficiencies in the information supplied by particular foreign countries that
directly implicate this Nation’s security, and the Proclamation imposes tailored
restrictions to encourage greater cooperation and to protect the Nation until sufficient
improvements occur. The review and recommendations of multiple Cabinet officials
whose motivations have never been questioned refute any suggestion of religious
animus, and the Proclamation’s findings foreclose any claim that the President
exceeded his expansive authority, consistent with similar decisions by past
Presidents.

Plaintiffs urge the Court to equate the Proclamation with Executive Order
13,780 (EO-2), which this Court addressed in its now-vacated opinion. In essence,
plaintiffs contend that, because the government did not succeed in obtaining a full
stay from this Court or the Supreme Court of an injunction against prior travel
restrictions imposed by EO-2, the government also cannot do so here. But after
granting review of that injunction, the Supreme Court vacated it as moot precisely
to wipe the slate clean for fresh consideration. And even on its own terms, this
Court’s vacated opinion does not justify ignoring the differences between the two
directives or the comprehensive process and national-security findings on which the
Proclamation is based.
Plaintiffs also fail to identify any cognizable, let alone irreparable, harm that
they would suffer if the Proclamation takes effect during the brief duration of an
expedited appeal. Plaintiffs’ statutory and constitutional claims are not justiciable,
and the speculative injuries they forecast will not be ripe unless and until their
relatives and members seek and are denied a waiver and visa. At a minimum, the
injunction should be stayed to the extent it reaches numerous third parties to whom
plaintiffs have no connection at all.
A.

The Balance of Harms Supports A Stay

1.

As we demonstrated, the district court’s injunction overriding the

President’s national-security and foreign-policy judgment causes irreparable
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substantive and institutional injuries. Motion 8-9. Plaintiffs rejoin that the Supreme
Court declined to stay the EO-2 injunction for individuals with credible claims of
bona fide relationships with U.S. persons or entities, and contend that the
government has identified no “new” or “concrete” harms warranting a stay of the
injunction against the Proclamation for such individuals.

IRAP Opposition

(“Opposition”) 4-5 (emphasis omitted). That is erroneous. Unlike EO-2, which
imposed restrictions pending a worldwide review based on concern that existing
information may be inadequate, the Proclamation reflects an exhaustive multiagency review process that identified actual information-sharing deficiencies and
other risk factors for eight countries, and that recommended entry restrictions to
induce improvements by those countries and to protect this Nation. Procl. § 1(c)-(i).
Plaintiffs offer no valid reason to discount that process or the resulting
determinations. Indeed, the district court found no fault with the President’s finding
under 8 U.S.C. §§ 1182(f) and 1185(a) that entry of the covered aliens would be
detrimental to the national interest. Opinion 49-61. Plaintiffs assert that the injunction
cannot pose irreparable injury because former national-security officials disagree
with the need for the Proclamation’s entry restrictions. Opposition 5-6. But none of
those former officials participated in the recent review, diplomatic-engagement, and
recommendation processes that culminated in the Proclamation. Their private
viewpoints, based on outdated information, cannot justify disregarding the
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considered judgment of the President and multiple Cabinet officials whose good
faith is unquestioned.
Plaintiffs’ remaining attempts to undermine the government’s showing of
irreparable harm are insubstantial. They wrongly suggest that the district court’s
injunction cannot threaten national security because the Proclamation permits entry by
some individuals from the covered countries. Opposition 6. But those exemptions
either do not equally implicate the concerns motivating the Proclamation, see, e.g.,
Procl. § 3(b)(iv) (dual nationals traveling on a non-covered nation’s passport), or reflect
careful balancing of countervailing considerations, see, e.g., id. § 3(c) (waivers in
certain circumstances). Plaintiffs also inaccurately accuse the government of acting
without “dispatch” in implementing the Proclamation.

Opposition 7.

The

government acted deliberately yet expeditiously by completing, within 90 days of
the date the temporary stay suspension went into effect, the following steps:
identifying the criteria by which to evaluate countries; collecting data on, and
evaluating the information-sharing practices of, nearly 200 countries; engaging with
foreign governments to encourage them to improve their performance, which
yielded substantial improvements; and crafting the final restrictions after
considering recommendations and further advice. Procl. § 1(c)-(i). Nor should the
government be faulted for allowing a brief period in the Proclamation for orderly
implementation worldwide of its entry restrictions.
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2.

Plaintiffs also fail to identify any countervailing harm that justifies

denying a stay. Setting aside their allegations that the Proclamation denigrates their
religion, Opposition 21—which is not a cognizable injury at all, see p. 5-6, infra—
they rely entirely on general assertions about the harms they will supposedly suffer
from the Proclamation’s “indefinite” entry suspension. Opposition 21-22; IAAB
Opposition 6-8. But plaintiffs make no attempt to show that significant harms would
occur during the brief period of a stay pending expedited appeal, taking into account
the widely varying times for visa processing and the uncertainty whether the aliens
with whom they have a bona fide relationship would meet otherwise-applicable visa
requirements and ultimately be denied a waiver. Motion 9-10. And during the
appeal, those aliens can continue to seek visas and perhaps receive the final agency
action that would be a prerequisite to review under the Administrative Procedure Act
even if such review were not otherwise barred.
B.

The Government Is Likely To Prevail On Appeal

1.

Plaintiffs’ claims are not justiciable

Plaintiffs do not respond to the government’s argument that the
Proclamation’s exclusion of aliens abroad does not violate plaintiffs’ own rights
under the Establishment Clause or Equal Protection Clause.

Motion 12-15.

Plaintiffs simply cite this Court’s vacated en banc opinion, Opposition 21, while
ignoring the government’s showing that this Court conflated the question whether
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plaintiffs have suffered an Article III injury-in-fact from the exclusion of aliens
abroad with the question whether the allegedly discriminatory treatment of those
third parties violated plaintiffs’ own constitutional rights.
Plaintiffs fare no better on their statutory claims. They do not dispute 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). Nor
do they identify any express legal authorization to review their statutory challenges
to the exclusion of aliens abroad. (Knauff, by contrast, involved an alien detained at
Ellis Island, as to whom Congress had authorized habeas corpus review. Id. at 53940.)
Instead, plaintiffs reprise the district court’s assertion that exclusion orders are
non-reviewable without statutory authorization only for the exclusion of “particular”
aliens, and that the principle of non-reviewability does not extend to “general”
policies. Opposition 19. But plaintiffs provide no response to the government’s
showing that this distinction is inconsistent with the rationale underlying the
principle of non-reviewability and contrary to the constitutional structure. Motion
11-12. Not one of the cases cited by plaintiffs ordered the admission of aliens abroad
that the Executive Branch had excluded.

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2.

The Proclamation does not violate the INA or the Establishment
Clause

a.

Plaintiffs contend that the Proclamation exceeds the President’s broad

authority under 8 U.S.C. §§ 1182(f) and 1185(a)(1). Opposition 15-19. Contrary to
their suggestion, the district court did not merely “decline[] to enjoin” the
Proclamation on this ground, Opposition 15, but rather affirmatively rejected
plaintiffs’ argument. Opinion 49-61.

Under the plain text of these statutory

provisions, it is unquestionably permissible to restrict entry of nationals from
countries that present information-sharing deficiencies or other risk factors, both to
encourage improvement by those countries and to protect this country in the interim.
Motion 15-17. Indeed, plaintiffs fail to refute the government’s showing that this
Proclamation is not materially distinguishable from President Carter’s 1979 decision
to authorize the exclusion of Iranian nationals during the Iran Hostage Crisis and
President Reagan’s 1986 exclusion of Cuban nationals during a diplomatic dispute.
Motion 16; Opposition 18-19.
Plaintiffs nevertheless contend that the Proclamation “override[s] Congress’s
enacted policy judgments,” particularly with respect to the Visa Waiver Program
(VWP). Opposition 15, 16-18. As the district court correctly held, however, “a fair
reading of § 1182(f) is that it allows the President to impose * * * additional
restrictions outside of previously listed requirements.” Opinion 57-58; see, e.g.,
Allende v. Shultz, 845 F.2d 1111, 1118-19 (1st Cir. 1988) (holding that Presidents can
7

use § 1182(f) to supplement statutory grounds for inadmissibility under § 1182(a)).
In particular, here, because the incentive that Congress has provided countries to
improve their information-sharing practices (the VWP) has not been adequate for
the countries at issue, Congress has recognized the President’s authority to impose
entry restrictions. See Opinion 58.
b.

In defending the district court’s holding that the Proclamation violates

8 U.S.C. § 1152(a)(1)’s ban on nationality discrimination in the issuance of
immigrant visas, plaintiffs do not meaningfully respond to our objections.
First, plaintiffs do not seriously dispute that Section 1152(a)(1)’s restriction
on “the issuance of an immigrant visa” does not purport to restrict the President’s
power to suspend entry under Sections 1182(f) and 1185(a).

Motion 17-18.

Although plaintiffs emphasize that the purpose of Section 1152(a)(1) was to end the
national-origins quota system for immigrant visas, Opposition 13-14, that history is
entirely consistent with the government’s showing that Section 1152(a)(1) merely
prevents discrimination on the basis of nationality within the set of aliens who are
otherwise eligible for immigrant visas, but does not restrict the President’s power to
limit the set of aliens who are eligible for entry in the first place.
Second, plaintiffs ignore that their position would mean that President
Carter’s 1979 decision to authorize the exclusion of Iranian immigrants during the
Iran Hostage Crisis violated Section 1152(a)(1), as would President Reagan’s 1986
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exclusion of Cuban immigrants during a diplomatic dispute. Motion 18-19. And
more generally, plaintiffs ignore that it is eminently sensible for the President to
respond to problems posed by a particular country by restricting the entry of that
country’s nationals—e.g., when on the brink of war with a country—and equally
sensible to implement such an entry suspension by denying visas rather than
stopping aliens at the border. Motion 18. The need for nationality-based restrictions
in such a situation demonstrates that the district court’s reading of Section 1152(a)(1)
cannot be correct, and nothing in that statute authorizes plaintiffs to second guess
the President on when nationality-based restrictions are warranted. Nor do plaintiffs
dispute that Section 1152(a)(1) is unambiguously inapplicable to non-immigrant
visas.
c.

Plaintiffs likewise fail to refute the government’s showing that the

Proclamation does not violate the Establishment Clause. Plaintiffs cannot reconcile
their claim with the Proclamation’s religion-neutral text, process, and substance, and
they cannot evade that fatal flaw by fixating on the earlier Executive Orders or the
President’s campaign statements.
Plaintiffs repeat the district court’s erroneous assertion that the Proclamation’s
“underlying architecture” is “fundamentally the same” as the prior Executive Orders.
Opposition 9. But plaintiffs concede that, unlike the prior Executive Orders, the
Proclamation reflects a months-long worldwide review and recommendation
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process by multiple government agencies whose officials have never been accused
of, much less shown to have acted based on, anti-Muslim animus or any other badfaith motive. Motion 20. Plaintiffs reprise the district court’s accusation that the
agencies’ recommendation was “pre-ordained,” Opposition 10, but they ignore our
showing that this charge is directly contrary to the unambiguous text of the
provisions in EO-2 establishing the review and recommendation process, Motion 22.
Plaintiffs also emphasize that it was the President, not the agencies, who ultimately
adopted the Proclamation’s restrictions. Opposition 11. But, as the Proclamation
makes clear, the eight countries selected were the same countries recommended by
the Acting Secretary of Homeland Security, and the particular tailored restrictions
imposed on each country were in accordance with the Acting Secretary’s
recommendations. Procl. § 1(g)-(i).
Moreover, the substantive restrictions imposed by the President underscore
the good-faith, secular basis of the Proclamation. Plaintiffs’ animus-based theory
does not explain why the President dropped two Muslim-majority nations that had
been subject to entry restrictions under prior Executive Orders (Sudan and Iraq).
Motion 20-21. Nor do Plaintiffs explain why the President exempted significant
categories of non-immigrant visas from five Muslim-majority nations (Somalia,
Libya, Yemen, Chad, and Iran). Motion 21-22. Plaintiffs likewise do not explain
why only one (barely) Muslim-majority nation was added (Chad), Motion 21, and
10

plaintiffs’ suggestion that the addition of two non-Muslim-majority nations (North
Korea and Venezuela) was merely a “litigating position,” Opposition 11, is belied by
the fact that this addition was recommended by the Acting Secretary of Homeland
Security. Finally, plaintiffs allege that the President treated Somalia and Venezuela
inconsistently based on religion, Opposition 11, but they ignore the Proclamation’s
neutral explanation for why those countries were treated differently, Motion 22-23.
Given their inability to undermine the Proclamation’s text, process, and
substance, plaintiffs repeatedly emphasize the history of the prior Executive Orders
and the campaign statements that preceded them. Opposition 8-9, 12. But both
Supreme Court precedent and common sense compel the conclusion that this history
cannot continue to disable the President from regulating the entry of aliens when
applied to Muslim-majority countries—not after a multi-agency review by officials
whose motives have never been questioned, and whose recommendation as
implemented by the President operates neutrally with respect to religion and in
myriad ways that are inconsistent with a purpose or effect of banning Muslims.
Motion 24.
C.

The Global Injunction Is Improper

Plaintiffs do not dispute that both Article III and equitable principles require
that any injunctive relief be limited to redressing plaintiffs’ own cognizable,
irreparable injuries, regardless of whether the Proclamation may also be invalid as
11

applied to others. Motion 24-25; Opposition 22-23. Yet, apart from their noncognizable “message” injury, they identify no reason that could justify relief that
extends beyond any particular aliens with whom they have a bona fide relationship.
Although they observe that the organizational plaintiffs have “employees, clients,
and members located across the country,” Opposition 23, that does not make it
“impractical” to limit any relief to particular aliens abroad with which a member or
client claims a bona fide relationship. Plaintiffs thus fall back on the claim that the
Supreme Court’s decision staying in part the injunction against EO-2 otherwise
“approved” that global injunction, Opposition 22, but they misconstrue that stay
decision, as we have already explained, Motion 25.
CONCLUSION
Defendants respectfully request that, pending completion of appellate review
(including any Supreme Court proceedings), 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. Defendants
also respectfully request that, pending a ruling on a stay pending appeal, the Court
grant an immediate administrative stay.

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Respectfully submitted,

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
/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]

OCTOBER 2017

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CERTIFICATE OF COMPLIANCE
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 2,585 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 30, 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