Intl. Refugee Assistance v. Donald J. Trump

Filing 58

BRIEF by Appellants Daniel R. Coats, Department of State, Elaine C. Duke, Office of the Director of National Intelligence, Rex Tillerson, Donald J. Trump and United States Department of Homeland Security in 17-2231, Appellants Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson B. Sessions III, Rex Tillerson and Donald J. Trump in 17-2232, Appellants Elaine C. Duke, Rex Tillerson, Donald J. Trump, United States Department of Homeland Security and United States Department of State in 17-2233, Appellees 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 in electronic and paper format. Type of Brief: OPENING. Method of Filing Paper Copies: courier. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 01/02/2017. [1000185246] [17-2231, 17-2232, 17-2233, 17-2240] Sharon Swingle [Entered: 11/01/2017 06:53 PM]

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

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

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

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

TABLE OF CONTENTS
Page
INTRODUCTION ..................................................................................................... 1
STATEMENT OF JURISDICTION.......................................................................... 4
STATEMENT OF THE ISSUE ................................................................................. 4
STATEMENT OF THE CASE .................................................................................. 4
A.

Statutory Background ............................................................................ 4

B.

Executive Order No. 13,780 .................................................................. 6

C.

Proclamation No. 9645 .......................................................................... 8

D.

District Court Injunction ..................................................................... 12

SUMMARY OF ARGUMENT ............................................................................... 16
STANDARD OF REVIEW ..................................................................................... 19
ARGUMENT ........................................................................................................... 19
I.

Plaintiffs’ Claims Are Not Justiciable ........................................................... 19
A.
B.

II.

Plaintiffs’ Statutory Claims Are Not Justiciable ................................ 19
Plaintiffs’ Establishment Clause Claims Are
Not Justiciable .................................................................................... 25

Plaintiffs Do Not Have A Likelihood Of Success On The
Merits Of Their Statutory Or Constitutional Claims .................................... 28
A.

The Proclamation Is Consistent With The INA ................................... 29

i

1.
2.

The Proclamation Is Fully Justified By The
President’s National-Security And Foreign-Affairs
Judgments.................................................................................. 32

3.

B.

The President Has Extremely Broad Discretion
To Suspend Entry Of Aliens Abroad ........................................ 29

Section 1152(a)(1)’s Prohibition On Nationality
Discrimination In Issuing Immigrant Visas Does Not
Restrict The President’s Authority To Suspend Entry ............. 34

The Proclamation Is Consistent With The
Establishment Clause .......................................................................... 39
1.

2.
III.

The Proclamation Is Constitutional Under Mandel
Because It Relies On Facially Neutral And Bona Fide
Reasons ..................................................................................... 40
The Proclamation Is Valid Under McCreary............................ 43

The Balance Of Harms Weighs Strongly Against Preliminary Relief .......... 53
A.

The District Court’s Injunction Imposes Serious, Irreparable
Harm On The Government And The Public ...................................... 53

B.

A Preliminary Injunction Is Not Necessary To Prevent Any
Substantial Harm To Plaintiffs ........................................................... 55

CONCLUSION ........................................................................................................ 56
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

ii

TABLE OF AUTHORITIES
Cases:

Page(s)

Abourezk v. Reagan,
785 F.2d 1043 (D.C. Cir. 1986),
aff’d by an equally divided Court, 484 U.S. 1 (1987) .............................. 21-22, 29
Allen v. Wright,
468 U.S. 737 (1984) .............................................................................................27
Allende v. Shultz,
845 F.2d 1111 (1st Cir. 1988) ....................................................................... 29, 30
Block v. Community Nutrition Inst.,
467 U.S. 340 (1984) .............................................................................................24
Camreta v. Greene,
563 U.S. 692 (2011) ...............................................................................................7
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) .............................................................................................43
Dalton v. Specter,
511 U.S. 462 (1994) .............................................................................................30
Department of Navy v. Egan,
484 U.S. 518 (1988) .............................................................................................33
Direx Israel, Ltd. v. Breakthrough Med. Corp.,
952 F.2d 802 (4th Cir. 1992) ................................................................................55
Fiallo v. Bell,
430 U.S. 787 (1977) .............................................................................................19
Franklin v. Massachusetts,
505 U.S. 788 (1992) .............................................................................................22
Haig v. Agee,
453 U.S. 280 (1981) ...................................................................................... 30, 53
iii

Harisiades v. Shaughnessy,
342 U.S. 580 (1952) .............................................................................................21
Hawaii v. Trump :
245 F. Supp. 3d 1227 (D. Haw. 2017) ...................................................................7
859 F.3d 741 (9th Cir. 2017) ........................................................................... 7, 36
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ......................................................................................... 52, 53
International Union of Bricklayers v. Meese,
761 F.2d 798 (D.C. Cir. 1985) ............................................................................ 22
IRAP v. Trump:
241 F. Supp. 3d 539 (D. Md. 2017) ................................................................ 7, 35
857 F.3d 554 (4th Cir. 2017) ......................................................... 7, 21, 28, 40, 41
Jackson v. Okaloosa Cty.,
21 F.3d 1531 (11th Cir. 1994) ..............................................................................23
Kerry v. Din,
135 S. Ct. 2128 (2015) ............................................................................ 26, 28, 42
Kleindienst v. Mandel,
408 U.S. 753 (1972) ............................................ 15, 18, 25, 26, 28, 39, 40, 41, 42
League of Women Voters of N.C. v. North Carolina,
769 F.3d 224 (4th Cir. 2014) ................................................................................10
Legal Assistance for Vietnamese Asylum Seekers v. Department of
Justice, 45 F.3d 469 (D.C. Cir. 1995), vacated on other grounds,
519 U.S. 1 (1996) .......................................................................................... 22, 24
Lewis v. Casey,
518 U.S. 343 (1996) .............................................................................................56
Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871 (1990) .............................................................................................24

iv

Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753 (1994) .............................................................................................56
Malek-Marzban v. INS,
653 F.2d 113 (4th Cir. 1981) .................................................................... 31-32, 36
Maryland v. King,
567 U.S. 1301 (2012) ...........................................................................................54
McCreary County v. ACLU of Kentucky,
545 U.S. 844 (2005) .......................................................................... 39, 43, 45, 46
McGowan v. Maryland,
366 U.S. 420 (1961) ...................................................................................... 26, 46
Morfin v. Tillerson,
851 F.3d 710 (7th Cir. 2017), cert. denied,
2017 WL 3136962 (U.S. Oct. 30, 2017) ............................................................. 42
Nademi v. INS,
679 F.2d 811 (10th Cir. 1982) ..............................................................................32
In re Navy Chaplaincy,
534 F.3d 756 (2008), cert. denied, 556 U.S. 1167 (2009) ...................................28
Nixon v. Fitzgerald,
457 U.S. 731 (1982) .............................................................................................54
NLRB v. SW Gen., Inc.,
137 S. Ct. 929 (2017) .......................................................................................... 39
O Centro Espirita Beneficiente Uniao de Vegetal v. Ashcroft,
314 F.3d 463, 467 (10th Cir. 2002) ..................................................................... 54
PBM Prods., LLC v. Mead Johnson & Co.,
639 F.3d 111 (4th Cir. 2011) ................................................................................19
Radzanower v. Touche Ross & Co.,
426 U.S. 148 (1976) .............................................................................................34
v

Reno v. American-Arab Anti-Discrimination Committee,
525 U.S. 471 (1999) ...................................................................................... 30, 51
Saavedra Bruno v. Albright,
197 F.3d 1153 (D.C. Cir. 1999)......................................................... 20, 21, 22, 24
Salazar v. Buono,
130 S. Ct. 1803 (2010) .........................................................................................46
Sale v. Haitian Ctrs. Council, Inc.,
509 U.S. 155 (1993) .................................................................... 25, 29, 31, 39, 53
Sessions v. Morales-Santana,
137 S. Ct. 1678 (2017) .........................................................................................41
Steel Co. v. Citizens for a Better Env’t,
523 U.S. 823 (1998) .............................................................................................25
Texas v. United States,
523 U.S. 296 (1998) .............................................................................................23
Trump v. Hawaii,
2017 WL 4782860 (U.S. Oct. 24, 2017) ................................................................7
Trump v. IRAP:
137 S. Ct. 2080 (2017) .................................................................................... 7, 56
2017 WL 4518553 (U.S. Oct. 10, 2017) ................................................................7
United States R.R. Ret. Bd. v. Fritz,
449 U.S. 166 (1980) .............................................................................................41
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) ................................................................ 6, 20, 24, 25, 29, 53
United Transp. Union v. S.C. Pub. Ry. Comm’n,
130 F.3d 627 (4th Cir. 1997) ................................................................................19
Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464 (1982) ................................................... 27, 28
vi

Webster v. Doe,
486 U.S. 592 (1988) ...................................................................................... 25, 30
Western & S. Life Ins. Co. v. State Bd. of Equalization of Cal.,
451 U.S. 648 (1981) .............................................................................................41
Yassini v. Crosland,
618 F.2d 1356 (9th Cir. 1980) ..............................................................................32
Zelman v. Simmons-Harris,
536 U.S. 639 (2002) .............................................................................................48
Zivotofsky ex rel. Zivotofsky v. Kerry,
135 S. Ct. 2076 (2015) .........................................................................................54

Statutes:
Administrative Procedure Act:
5 U.S.C. § 701(a)(1) .............................................................................................20
5 U.S.C. § 701(a)(2) .............................................................................................24
5 U.S.C. § 702(1) ..................................................................................................20
5 U.S.C. § 704 ......................................................................................................22
Foreign Relations Authorization Act, Fiscal Year 1979,
Pub. L. No. 95-426, 92 Stat. 963 (1978) ..............................................................38
Immigration and Nationality Act:
8 U.S.C. § 1101 et seq. ...........................................................................................4
8 U.S.C. § 1152(a) ..................................................................................... 1, 35, 37
8 U.S.C. § 1152(a)(1) .............................................................................. 17, 36. 38
8 U.S.C. § 1152(a)(1)(A)................................................. 15, 24, 34, 35, 37, 38, 39
8 U.S.C. § 1152(a)(1)(B) ......................................................................................39
8 U.S.C. § 1181 ......................................................................................................4
8 U.S.C. § 1182(a)(7)(A)(i) ....................................................................................4
8 U.S.C. § 1182(a)(7)(B)(iv) ..................................................................................5
8 U.S.C. § 1182(a)(7)(B)(i)(II) ...............................................................................4
8 U.S.C. § 1182(f) ......................... 6, 10, 15, 17, 24, 25, 29, 30, 31, 32, 34, 35, 38
8 U.S.C. § 1185(a) ............................................................................. 17, 32, 34, 35
8 U.S.C. § 1185(a)(1) ............................................ 6, 10, 17, 24, 29, 30, 31, 35, 38
vii

8 U.S.C. § 1185(b) ................................................................................................30
8 U.S.C. § 1187 ..................................................................................................... 5
8 U.S.C. § 1187(a)(12) .........................................................................................44
8 U.S.C. § 1187(a)(12)(A)(i)-(ii)............................................................................5
8 U.S.C. § 1187(a)(12)(D)(i)-(ii)............................................................................5
8 U.S.C. § 1201(a)(1) .............................................................................................4
8 U.S.C. § 1201(g) ................................................................................................35
8 U.S.C. § 1201(i).................................................................................................20
8 U.S.C. § 1202(h) ..................................................................................................4
8 U.S.C. § 1203 ......................................................................................................4
8 U.S.C. § 1204 ......................................................................................................4
8 U.S.C. § 1225(a) ..................................................................................................4
6 U.S.C. § 236(f) ......................................................................................................20
28 U.S.C. § 1292(a)(1) ...............................................................................................4
28 U.S.C. § 1331 ........................................................................................................4
28 U.S.C. § 1343 ........................................................................................................4

Regulation:
22 C.F.R. § 42.62 .......................................................................................................4

Legislative Materials:
H. Rep. No. 89-745 (1965) ......................................................................................36
S. Rep. No. 89-748 (1965) .......................................................................................36

Other Authorities:
Jimmy Carter, Sanctions Against Iran: Remarks Announcing
U.S. Actions (Apr. 7, 1980), http://www.presidency.ucsb.edu/
ws/?pid=33233............................................................................................... 37, 38
viii

Cent. Intelligence Agency, The World Factbook: Africa (Chad),
https://www.cia.gov/library/publications/the-world-factbook/
geos/cd.html (last updated Oct. 26, 2017) ............................................................44
Exec. Order No. 12,172, 44 Fed. Reg. 67,947 (1979) ...................................... 31, 37
Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (1992) .............................................31
Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (2017) ...................................... 6, 7, 8
Proclamation No. 5517, 51 Fed. Reg. 30,470 (1986) ................................. 32, 37, 38
Proclamation No. 5829, 53 Fed. Reg. 22,289 (1988) ............................................. 31
Proclamation No. 5887, 53 Fed. Reg. 43,185 (1988) ............................................. 31
Proclamation No. 6958, 61 Fed. Reg. 60,007 (1996) ............................................. 31
Proclamation No. 8342, 74 Fed. Reg. 4093 (2009) ................................................ 31
Proclamation No. 8693, 76 Fed. Reg. 44,751 (2011) ............................................. 31
Proclamation No. 9645, 82 Fed. Reg. 45,161 (2017) ............. 1, 8, 9, 10, 11, 12, 32,
34, 38, 40, 43, 46, 48, 49, 50
Pres. Donald J. Trump, Speech to the Arab Islamic American Summit
(May
21,
2017),
https://www.whitehouse.gov/the-press-office/
2017/05/21/president-trumps-speech-arab-islamic-american-summit .................52
U.S. Dep’t of Homeland Sec., DHS Announces Further Travel Restrictions
for the Visa Waiver Program (Feb. 18, 2016), https://www.dhs.gov/
news/2016/02/18/dhs-announces-further-travel-restrictions-visawaiver-program ......................................................................................................5
U.S. Dep’t of State, Country Reports on Terrorism 2015 (June 2016),
https://www.state.gov/documents/organization/258249.pdf ..................................5

ix

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 PublicSafety Threats,” 82 Fed. Reg. 45,161 (2017)—was issued after a global review by
the Department of Homeland Security, in consultation with the Department of State,
of foreign governments’ information-sharing practices and risk factors, culminating
in a recommendation by the Acting Secretary of Homeland Security that the
President restrict entry of certain nationals of eight countries that have inadequate
practices or otherwise present heightened risks. The Proclamation imposes countryspecific restrictions that, in the President’s judgment, will 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 the thorough review process
and tailored substantive measures that were not present in the temporary entry
suspension that preceded this one, the Proclamation is motivated by religious animus
in violation of the Establishment Clause and constitutes impermissible nationalitybased discrimination in the issuance of immigration visas under 8 U.S.C. § 1152(a).

That erroneous ruling threatens the ability of this and future Presidents to address
national-security threats. 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 nonMuslim-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.
All that said, this Court should not even reach the merits, because plaintiffs’
claims are not justiciable in the first place. As a general matter, courts cannot review
a challenge to the political branches’ exclusion of aliens abroad absent express
statutory authorization. Congress has not provided such authorization, and thus
plaintiffs’ statutory claims are barred. Although there is a limited exception to the
principle of nonreviewability where the exclusion of aliens abroad allegedly violates
the constitutional rights of persons in the United States, the Proclamation’s alleged
discrimination against certain nationals of the covered countries does not violate
plaintiffs’ own religious-freedom rights.
2

The district court also erred in its evaluation of the remaining factors
governing preliminary injunctive relief.

The interests of the public and the

government are significantly impaired by barring effectuation of a judgment of the
President that restricting entry for certain nationals of eight countries is warranted to
protect the Nation’s safety. By contrast, plaintiffs have not identified any cognizable
and irreparable injury that they personally would incur if the restrictions on entry
take effect while the case is being adjudicated, and any impact from the Proclamation
on their relatives’ or other identified individuals’ receipt of a visa is speculative. The
preliminary injunction should be vacated for this reason as well.
At a minimum, the global injunctive relief was vastly overbroad. Under both
Article III and equitable principles, any injunction cannot properly go further than
necessary to redress plaintiffs’ own injuries—i.e., to identified aliens whose
exclusion would impose cognizable, irreparable injury on plaintiffs themselves. The
district court extended the injunction further to reach any alien with a credible claim
of a bona fide relationship with a U.S. person or entity, but that standard—which the
Supreme Court adopted in staying the injunction against the prior entry
suspension—is not the proper standard for issuing a preliminary injunction in the
first place.

3

STATEMENT OF JURISDICTION
The district court’s jurisdiction was invoked under 28 U.S.C. §§ 1331 and
1343. JA 475. This Court has jurisdiction under 28 U.S.C. § 1292(a)(1). The
district court entered its order granting a preliminary injunction in these cases on
October 17, 2017. JA 1084. Defendants filed timely notices of appeal on October
20, 2017. JA 1087, 1198, 1494. Plaintiffs in No. 17-2240 filed a timely notice of
cross-appeal on October 23, 2017. JA 1090.
STATEMENT OF THE ISSUE
Whether the district court abused its discretion in entering a worldwide
preliminary injunction barring enforcement of Section 2 of the Proclamation.
STATEMENT OF THE CASE
A.

Statutory Background

The Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., governs
admission of aliens into the United States. Admission normally requires a valid
immigrant or nonimmigrant visa. Id. §§ 1181, 1182(a)(7)(A)(i), (B)(i)(II), 1203.
The visa-application process typically includes an in-person interview and results in
a decision by a State Department consular officer. Id. §§ 1201(a)(1), 1202(h), 1204;
22 C.F.R. § 42.62. Although a visa is typically necessary for admission, it does not
guarantee admission; the alien still must be admissible upon arriving at a port of
entry. 8 U.S.C. §§ 1201(h), 1225(a).
4

Congress has created a Visa Waiver Program enabling nationals of approved
countries to seek temporary admission for tourism or certain business purposes
without a visa. 8 U.S.C. §§ 1182(a)(7)(B)(iv), 1187. In 2015, Congress excluded
from travel under that Program aliens who are dual nationals of or recent visitors to
Iraq or Syria (where “[t]he Islamic State of Iraq and the Levant (ISIL) * * *
maintain[s] a formidable force”) as well as countries designated by the Secretary of
State as state sponsors of terrorism (currently Iran, Sudan, and Syria).1

Id.

§ 1187(a)(12)(A)(i)-(ii). Congress authorized the Department of Homeland Security
(DHS) to designate additional countries of concern, considering whether a country
is a “safe haven for terrorists,” “whether a foreign terrorist organization has a
significant presence” in the country, and “whether the presence of an alien in the
country * * * increases the likelihood that the alien is a credible threat to” U.S.
national security. Id. § 1187(a)(12)(D)(i)-(ii). Applying those criteria, in February
2016, DHS excluded recent visitors to Libya, Somalia, and Yemen from travel under
the Program.2

1

U.S. Dep’t of State, Country Reports on Terrorism 2015, at 6, 299-302
(June 2016), https://www.state.gov/documents/organization/258249.pdf.
2

U.S. Dep’t of Homeland Security, DHS Announces Further Travel
Restrictions
for
the
Visa
Waiver
Program
(Feb.
18,
2016),
https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictionsvisa-waiver-program.
5

In addition, building upon the President’s inherent authority to exclude aliens,
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950), Congress has
accorded the Executive broad discretion to suspend or restrict entry of aliens. 8
U.S.C. § 1182(f) provides:
Whenever the President finds that the entry of any aliens or of any class
of aliens into the United States would be detrimental to the interests of
the United States, he may by proclamation, and for such period as he
shall deem necessary, suspend the entry of all aliens or any class of
aliens as immigrants or nonimmigrants, or impose on the entry of aliens
any restrictions he may deem to be appropriate.
8 U.S.C. § 1185(a)(1) grants the President broad general authority to adopt
“reasonable rules, regulations, and orders” governing entry of aliens, “subject to
such limitations and exceptions as [he] may prescribe.” Pursuant to these authorities,
President Reagan suspended entry of all Cuban nationals in 1986, and President
Carter authorized the denial and revocation of visas for Iranian nationals in 1979.
See pp. 31-33, 37-38, infra.
B.

Executive Order No. 13,780

On March 6, 2017, the President issued Executive Order No. 13,780, 82 Fed.
Reg. 13,209 (2017) (EO-2). Among other things, EO-2 directed the Secretary of
Homeland Security to conduct a global review of whether foreign governments
provide adequate information about their nationals seeking U.S. visas, and to report
findings to the President. See EO-2 § 2(a), (b). The Secretary of State would then
encourage countries identified as inadequate to alter their practices; following that
6

diplomatic-engagement process, the Secretary of Homeland Security would
recommend whether and it so what entry restrictions to impose on nations that
continued to have inadequate practices or to pose other risks. See 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 Branch in
connection with the Visa Waiver Program as presenting heighted terrorism-related
concerns. See EO-2 § 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) (per curiam). After EO2’s temporary entry suspension and certain other provisions expired, the Supreme
Court vacated both injunctions as moot. See Trump v. IRAP, No. 16-1436, 2017 WL
4518553 (U.S. Oct. 10, 2017); Trump v. Hawaii, No. 16-1540, 2017 WL 4782860
(U.S. Oct. 24, 2017); see also Camreta v. Greene, 563 U.S. 692, 713 (2011) (point
of vacatur upon mootness is “to prevent an unreviewable decision from spawning
any legal consequences” and to “clear[] the path for future relitigation”).

7

C.

Proclamation No. 9645

On September 24, 2017, the President signed Proclamation No. 9645, 82 Fed.
Reg. 45,161 (2017). The Proclamation is the product of the comprehensive review
of vetting and screening procedures conducted pursuant to Section 2 of EO-2, and
reflects the recommendation of the Acting Secretary of Homeland Security, and
consultations with the Secretaries of State and Defense as well as the Attorney
General.
1.

DHS, in consultation with the Department of State and the Office of the

Director of National Intelligence, conducted “a worldwide review to identify
whether, and if so what, additional information will be needed from each foreign
country to adjudicate an application by a national of that country for a visa,
admission, or other benefit under the INA * * * in order to determine that the
individual is not a security or public-safety threat.” EO-2 § 2(a). In a report
submitted to the President on July 9, 2017, the Acting Secretary of Homeland
Security developed a “baseline” for the kinds of information required, which
includes three components:
(1) identity-management information, i.e., “information needed to determine
whether individuals seeking benefits under the immigration laws are who they
claim to be,” which turns on criteria such as “whether the country issues
electronic passports embedded with data to enable confirmation of identity,
reports lost and stolen passports to appropriate entities, and makes available
upon request identity-related information not included in its passports”;

8

(2) national-security and public-safety information about whether a person
seeking entry poses a risk, which turns on criteria such as “whether the country
makes available * * * known or suspected terrorist and criminal-history
information upon request,” “whether the country impedes the United States
Government’s receipt of information about passengers and crew traveling to
the United States,” and “whether the country provides passport and nationalidentity document exemplars”; and
(3) a national-security and public-safety risk assessment of the country, which
turns on criteria such as “whether the country is a known or potential terrorist
safe haven, whether it is a participant in the Visa Waiver Program * * * that
meets all of [the program’s] requirements, and whether it regularly fails to
receive its nationals subject to final orders of removal from the United States.”
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 Acting Secretary of Homeland Security
identified 16 countries as having “inadequate” information-sharing practices and
risk factors, and another 31 countries as “at risk” of becoming “inadequate.” Id.
§ 1(e).
These preliminary results were submitted to the President on July 9, 2017.
Id. § 1(c). The Department of State conducted a 50-day engagement period with
foreign governments to encourage them to improve their performance, which
yielded significant gains. Id. § 1(f).
2. On September 15, 2017, the Acting Secretary of Homeland Security
recommended that the President impose entry restrictions on certain nationals from
9

seven countries that were determined to be inadequate in their information-sharing
practices or to present other risk factors: Chad, Iran, Libya, North Korea, Syria,
Venezuela, and Yemen. Id. § 1(h). The Acting Secretary also recommended entry
restrictions for nationals of Somalia, which, although it was determined to satisfy
baseline requirements for information-sharing, has significant identity-management
deficiencies and is unable to effectively control all of its territory. Id. § 1(i).
3.

The President evaluated the Acting Secretary’s recommendation in

consultation with multiple Cabinet members and other high-level government
officials. Id. § 1(h)(i), (ii). The President considered a number of factors, including
each country’s “capacity, ability, and willingness to cooperate with our identitymanagement and information-sharing policies and each country’s risk factors,” as
well as “foreign policy, national security, and counterterrorism goals.” Id. § 1(h)(i).
Acting in accordance with the Acting Secretary’s recommendation, the
President exercised his constitutional authority and his statutory authority under 8
U.S.C. §§ 1182(f) and 1185(a)(1) to impose tailored entry restrictions on certain
nationals from eight countries.

The restrictions were intended “to encourage

cooperation given each country’s distinct circumstances, and * * *, at the same time,
protect the United States until such time as improvements occur.” Id. § 1(h)(i). The
President determined that these entry restrictions are “necessary to prevent the entry
of those foreign nationals about whom the United States Government lacks sufficient
10

information to assess the risks they pose to the United States,” and which are “needed
to elicit improved identity-management and information-sharing protocols and
practices from foreign governments.” Ibid.
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 nonimmigrant 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 nonimmigrant 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 identity 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.
§ 2(f)(ii).

11

Id.

The Proclamation provides for case-by-case waivers where a foreign national
demonstrates that denying entry would cause undue hardship, entry would not pose
a threat to the national security or public safety, and entry would be in the national
interest. Id. § 3(c)(i)(A)-(C). The Proclamation requires an ongoing review of the
Proclamation’s restrictions, taking into account whether countries have improved
their identity-management and information-sharing protocols, and periodic
reporting to the President about whether entry restrictions should be continued,
modified, terminated, or supplemented. Id. § 4.
The Proclamation took effect immediately for all foreign nationals who were
subject to entry restrictions under Section 2(a) of EO-2 pursuant to the Supreme
Court’s partial stay of the injunctions barring enforcement of that provision, and was
to take effect on October 18, 2017, for all other persons subject to the Proclamation.
Id. § 7.
D.

District Court Injunction

1.

These three cases are brought by individual and organizational

plaintiffs who challenge the Proclamation under the INA as well as the
Establishment Clause and the Equal Protection Clause.
The individual plaintiffs include U.S. citizens and lawful permanent residents
(LPRs) who have relatives from Iran, Syria, Yemen, and Somalia seeking immigrant

12

or nonimmigrant visas, as well as a few LPRs who do not have relatives seeking
entry from one of the covered countries. JA 1013-14.
Organizational plaintiffs include the International Refugee Assistance Project
(IRAP), and HIAS, Inc., both of which provide services to refugees in the
resettlement process; the Arab American Association of New York (AAANY),
which provides legal and other services to the Arab-American and Arab immigrant
community; The Middle East Studies Association of North America (MESA), an
organization of graduate students and faculty focused on Middle Eastern studies; the
Yemeni-American Merchants Association (YAMA), a membership organization
that protects against harassment and assists with immigration issues; Iranian
Alliances Across Borders (IAAB), which organizes youth camps, educational
events, and international conferences for the Iranian diaspora; and the Iranian
Students’ Foundation (ISF), which organizes events for Iranian-American students.
JA 1014.
2.

After expedited briefing and argument, the district court entered a

worldwide preliminary injunction barring enforcement of Section 2 of the
Proclamation against any alien with a credible claim of a bona fide relationship to a
U.S. person or entity, except nationals of Venezuela and North Korea. JA 1079-81.
The court held that U.S. residents may challenge the exclusion of aliens
abroad where they have a specific interest in the entry of those aliens. JA 1016-17.
13

The court reasoned that exclusion orders are nonreviewable only where they involve
“individual visa decisions by consular officers,” rather than “a broader policy.” JA
1029.
The court further held that several individual plaintiffs have standing to assert
their claims that the entry restrictions in Section 2 of the Proclamation violate the
INA. The court reasoned that the entry restrictions harm individual plaintiffs by
threatening to prolong their separation from family members from the designated
countries seeking visas to come to the United States. JA 1017-18. The district court
reasoned that several organizational plaintiffs have standing either on behalf of their
members for similar reasons, JA 1022, or in their own right because foreign nationals
subject to the entry restrictions will be unable to attend sponsored conferences and
events, JA 1019-20. The court further concluded that the individuals whose family
members are subject to the Proclamation have standing to challenge the entry
restrictions under the Establishment Clause because of their alleged “personal
contact” with those restrictions and the intangible “feelings of marginalization or
emotional distress [they experience] as a result of the Proclamation’s alleged antiMuslim message.” JA 1024-27.
3.

The court found that plaintiffs were likely to succeed on the merits as

to some of their statutory and constitutional claims.

14

Although the court held that plaintiffs had failed to show they are likely to
succeed on their claim that the Proclamation exceeds the President’s authority to
suspend the entry of aliens under 8 U.S.C. § 1182(f), JA 1041-53, it held that
plaintiffs are likely to succeed on their claim that the Proclamation violates the INA’s
prohibition on nationality-based discrimination in the issuance of immigrant visas,
8 U.S.C. § 1152(a)(1)(A), JA 1034-40. The court reasoned that the Proclamation’s
entry restrictions are “the equivalent of a ban on issuing immigrant visas based on
nationality.” JA 1038. The court acknowledged that “[t]here may be scenarios under
which denial of entry based on nationality” would be permissible, “such as during a
specific urgent national crisis or public health emergency,” JA 1037, but it
distinguished the Proclamation on the ground that it “imposed a permanent * * * ban
on immigrants from the Designated Countries,” JA 1038.
The court also held that plaintiffs are likely to succeed on the merits of their
Establishment Clause claim. JA 1053-76. It agreed with the Government that the
Proclamation should be reviewed under the “facially legitimate and bona fide
reason” standard in Kleindienst v. Mandel, 408 U.S. 753 (1972), and that the
Proclamation’s national-security interest is facially legitimate. JA 1055. The court
found, however, that the plaintiffs had “plausibly allege[d]” that the stated rationale
for the Proclamation was not bona fide, which the court held entitled it to look behind
the Proclamation’s stated rationale. JA 1056-57. Doing so, the court concluded that
15

the Proclamation “stands in the[] shadow” of EO-2, which the court had previously
concluded was likely to violate the Establishment Clause, JA 1064, and that the
Proclamation did not constitute “curative action” that would remove the “taint” the
court perceived, JA 1064, 1067.
The court concluded that the balancing of harms supports an injunction. JA
1076-77. Although the court acknowledged that “no government interest is more
compelling than the security of the Nation,” JA 1078, the court was of the view that
the Proclamation was not necessary to ensure national security, ibid., and that those
interests “are not paramount in this instance,” JA 1079.
SUMMARY OF ARGUMENT
I.

The district court erred in holding that plaintiffs’ claims are justiciable.

It is a fundamental separation-of-powers principle that the political branches’
decisions to exclude aliens abroad generally are not judicially reviewable absent
express authorization by law. That principle bars review of plaintiffs’ statutory
claims, which in any event are not cognizable under the Administrative Procedure
Act (APA) and Article III ripeness requirements. Although the Supreme Court has
allowed limited judicial review when a U.S. citizen claims that the exclusion of an
alien abroad infringes the plaintiff’s own constitutional rights, plaintiffs here assert
no cognizable violation of their own Establishment Clause rights.

16

II.

The district court also erred in holding that plaintiffs are likely to

succeed on the merits of their claims.
Plaintiffs’ statutory claims fail because the entry restrictions imposed by the
Proclamation fall well within the President’s broad, discretionary authority under 8
U.S.C. §§ 1182(f) and 1185(a)(1). The Proclamation contains ample findings that
the identified countries have inadequate information-sharing practices or other risk
factors, and that the entry restrictions encourage those countries to improve and
protect this country from those risks in the interim. Past Presidents have similarly
invoked this statutory authority to impose nationality-based bans on the entry of
nationals from countries that pose national-security and foreign-policy concerns.
Imposing nationality-based bans on entry does not contravene 8 U.S.C.
§ 1152(a)(1)’s prohibition on nationality-based discrimination in the issuance of an
immigrant visa. Section 1152(a)(1) applies to immigrants who are otherwise eligible
for a visa, but does not abrogate the President’s authority under Sections 1182(f) and
1185(a) to limit eligibility in the first place. The statutory provisions can, and
should, be harmonized.
The Proclamation is also consistent with the Establishment Clause. The
Proclamation’s entry restrictions are justified by facially legitimate and bona fide
reasons.

The district court’s second-guessing of the President’s subjective

17

motivation is inconsistent with Mandel and subsequent precedent, and fails to give
due regard to the President’s national-security judgment.
Furthermore, even under domestic Establishment Clause precedent, the
Proclamation is clearly lawful. It is religion-neutral on its face and in operation, and
its tailored restrictions, which apply to both Muslim-majority and non-Muslimmajority nations, are animated by country-specific conditions identified after a
comprehensive review by multiple Cabinet officials, not by religious animus. In
light of the current Proclamation’s valid process and substance, it cannot be
invalidated simply based on some perceived historical taint from the prior entry
suspensions or earlier campaign statements.
III.

Finally, the district court erred in concluding that the balancing of

harms supports its injunction. The injunction causes irreparable harm by overriding
the President’s national-security judgment.

Plaintiffs have not identified any

cognizable and irreparable injury that they personally would incur, and any effect on
the receipt of visas by their relatives or other identified individuals is speculative. In
any event, the injunction was overbroad under Article III and equitable principles,
because it extended beyond plaintiffs’ own alleged injuries to reach aliens who have
relationships only with unidentified non-parties in this country.

18

STANDARD OF REVIEW
This Court “review[s] the grant of a preliminary injunction for abuse of
discretion.” United Transp. Union v. S.C. Pub. Ry. Comm’n, 130 F.3d 627, 631
(4th Cir. 1997). “A district court abuses its discretion when it misapprehends or
misapplies the applicable law.” League of Women Voters of N.C. v. North Carolina,
769 F.3d 224, 235 (4th Cir. 2014). “[T]he court will vacate an injunction if it is
broader in scope than that necessary to provide complete relief to the plaintiff or if
an injunction does not carefully address only the circumstances of the case.” PBM
Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 128 (4th Cir. 2011).
ARGUMENT
As demonstrated below, the Government is likely to prevail on the merits,
both because plaintiffs’ claims are not justiciable and because plaintiffs are unlikely
to prevail under the statutory and constitutional provisions they invoke.
I.

Plaintiffs’ Claims Are Not Justiciable
A.

Plaintiffs’ Statutory Claims Are Not Justiciable

1.

The Supreme Court “ha[s] long recognized the power to expel or

exclude aliens as 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
19

Government to exclude a given alien.” United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537, 543 (1950).
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). Accordingly, the longstanding bar on judicial
review of the political branches’ exclusion of aliens abroad forecloses plaintiffs’
statutory challenges to the Proclamation.
Moreover, history “unmistakabl[y]” confirms 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 APA, Congress abrogated the ruling and limited those aliens to the habeas
remedy (which is not available to aliens abroad). 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).
20

The district court held 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. JA 1029. Although the nonreviewability principle is applied most
frequently to decisions by consular officers adjudicating visa applications, it would
invert the constitutional structure to limit review in that context while permitting
review of the President’s decision to restrict entry of classes of aliens. A consular
officer is a subordinate executive-branch official under the constitutional hierarchy.
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 even more strongly to broader nationalsecurity judgments of the President than 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).
This Court’s since-vacated opinion addressing EO-2 does not support the
district court’s rationale, because it rested solely on the constitutional claims and did
not address whether the statutory claims were reviewable. IRAP, 857 F.3d at 57980. The district court relied instead on Abourezk v. Reagan, 785 F.2d 1043 (D.C.
21

Cir. 1986), aff’d by an equally divided Court, 484 U.S. 1 (1987), in which the D.C.
Circuit concluded that U.S. citizens who invited foreign nationals to speak were
aggrieved by the State Department’s interpretation of an INA definition that led to
the exclusion of the intended speakers. JA 1017. 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 1164.3
2.

Even if the general rule of nonreviewability did not foreclose judicial

review of plaintiffs’ statutory claims, review would still be unavailable for three
additional reasons.
First, the APA provides for judicial review only of “final agency action.” 5
U.S.C. § 704. The President’s Proclamation is not “agency action” at all, Franklin
v. Massachusetts, 505 U.S. 788, 800-01 (1992), and there also has been no “final”
agency decision denying a visa based on the Proclamation to any of the aliens abroad
identified by plaintiffs. Even in cases where courts have considered constitutional

3

The district court also relied on Legal Assistance for Vietnamese Asylum
Seekers v. Department of State (LAVAS), 45 F.3d 469 (D.C. Cir. 1995), vacated on
other grounds, 519 U.S. 1 (1996), and International Union of Bricklayers v. Meese,
761 F.2d 798, 801 (D.C. Cir. 1985), JA 1017, 1030, but neither case even involved,
let alone sustained, a challenge to orders excluding aliens abroad.
22

claims of U.S. plaintiffs challenging the exclusion of aliens abroad, see pp. 25-26,
infra, they have not done so until after the aliens had been denied visas.
Indeed, for this reason, plaintiffs’ statutory claims as well as their
constitutional claims do not satisfy Article III and equitable ripeness requirements.
If any alien in whose entry a U.S. plaintiff has a cognizable interest is found
otherwise eligible for a visa and denied a waiver, then that plaintiff can bring suit at
that time (if the plaintiff’s claim is otherwise justiciable) and the Court can consider
the challenge in a concrete dispute. See Texas v. United States, 523 U.S. 296, 300
(1998) (“A claim is not ripe for adjudication if it rests upon ‘contingent future events
that may not occur as anticipated, or indeed may not occur at all.’”).
The district court reasoned that the waiver process “itself presents an
additional hurdle not faced by other visa applicants which would delay
reunification.” JA 1028. But it is not at all clear that the process of seeking a waiver
would cause any meaningful delay of the definitive resolution of an application for
a visa. Visa times vary widely, and it is not unusual for an alien to wait months or
years from the time he applies for an immigrant visa before receiving one. Nor is
the waiver process a discriminatory “hurdle” like the law challenged in Jackson v.
Okaloosa Cty., 21 F.3d 1531, 1541 (11th Cir. 1994), because it applies only to aliens
who lack any constitutional rights concerning entry, Knauff, 338 U.S. at 542, not to
the plaintiffs themselves.
23

Second, plaintiffs lack a statutory right to enforce. Nothing in the INA gives
plaintiffs a direct right to judicial review, and the APA’s “general cause of action”
exists only for “persons ‘adversely affected or aggrieved by agency action within the
meaning of a relevant statute,’ ” Block v. Community Nutrition Inst., 467 U.S. 340,
345 (1984). The statutory provisions empowering the President to restrict entry of
aliens, 8 U.S.C. §§ 1182(f ), 1185(a)(1), and prohibiting nationality-based
discrimination in the issuance of immigrant visas, id. § 1152(a)(1)(A), do not confer
any legally cognizable rights on third parties like plaintiffs here—i.e., U.S. persons
or organizations seeking entry of aliens abroad.
Although the district court invoked Abourezk and the vacated decision in
LAVAS, JA 1030, the D.C. Circuit has since held that, even when the INA permits a
U.S. person to file a petition for a foreign family member’s classification as a relative
for immigrant status, any arguable interest the U.S. person has “terminate[s]”
“[w]hen [his] petition [i]s granted.” Saavedra Bruno, 197 F.3d at 1164. Likewise,
the INA does not protect any interest of organizations that merely provide services
to aliens seeking entry. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990).
Third, the APA does not apply to the extent “agency action is committed to
agency discretion by law.” 5 U.S.C. § 701(a)(2). Here, the relevant statutes give
the President unreviewable discretion to impose restrictions on entry. See pp. 29-30,
infra. The district court rejected this argument on the ground that “courts have had
24

no difficulty reaching the merits of challenges to the President’s use of § 1182(f),”
JA 1031, relying principally on Sale v. Haitian Centers Council, Inc., 509 U.S. 155
(1993). But the Supreme Court in Sale did not question the President’s national
security judgment under 8 U.S.C. § 1182(f) and did not address whether plaintiffs’
claims were reviewable because it rejected them on the merits. Sale, 509 U.S. at
170-88; cf. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998) (“driveby jurisdictional rulings * * * have no precedential effect”).
B.

Plaintiffs’ Establishment Clause Claims Are Not Justiciable

1.

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. 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, 770 (1972) (reviewing but rejecting claim that the denial
of a waiver of visa-ineligibility to a Belgian national violated U.S. citizens’ own
First Amendment right to receive information); Kerry v. Din, 135 S. Ct. 2128 (2015)

25

(reviewing but rejecting claim by a U.S. citizen that the refusal of a visa to her
husband violated her own alleged due-process rights concerning her spouse’s entry).
Mandel and Din are inapposite here. Even putting aside that plaintiffs have
identified no visa application that has yet been denied based on the Proclamation,
their claimed injury from the exclusion of aliens abroad is not cognizable because it
does not stem from an alleged infringement of plaintiffs’ own constitutional rights
to religious freedom.
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 to bring 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, by contrast, 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
26

themselves have no constitutional rights. In reaching the contrary conclusion, JA
1024, the district court 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.
2.

Plaintiffs also asserted that they have “experienced feelings of

marginalization or emotional distress as a result of the Proclamation’s alleged antiMuslim message.” JA 1026-27. This “message” injury likewise is not cognizable;
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 n.22. But the Proclamation says nothing about
religion and does not subject plaintiffs to any religious exercise, and 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
27

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 that involve
challenges to government actions concerning third parties on the grounds that they
endorse or disfavor religion. Id.
Indeed, the district court, like this Court in its since-vacated opinion
addressing EO-2, acknowledged that plaintiffs could not challenge the Proclamation
based solely on the Proclamation’s alleged message, absent “personal contact” with
the Proclamation. JA 1024; see also IRAP, 857 F.3d at 582-83. But, as already
discussed, plaintiffs do not have “personal contact” with the Proclamation since it
does not apply to them at all, but only to third-party aliens abroad. In sum, Plaintiffs’
alleged third-party injuries are insufficient to invoke the limited review for firstparty constitutional claims afforded in Mandel and Din.
II.

Plaintiffs Do Not Have A Likelihood Of Success On The Merits Of
Their Statutory or Constitutional Claims
The government is also likely to prevail on the merits of its appeal because

the district court erred in holding that the Proclamation’s entry restrictions likely
contravene the INA and the Establishment Clause.

28

A.

The Proclamation Is Consistent With The INA
1.

a.

The President Has Extremely Broad Discretion To
Suspend Entry Of Aliens Abroad

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) provides that “[w]henever the President finds that the entry of
any aliens or of any class of aliens into the United States would be detrimental to the
interests of the United States, he may by proclamation, and for such period as he
shall deem necessary, suspend the entry of all aliens or any class of aliens as
immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he
may deem to be appropriate.” As courts have repeatedly recognized, Section 1182(f)
provides the President “sweeping” discretionary power to suspend the entry of
aliens. Abourezk, 785 F.2d at 1049 n.2; see also, e.g., Allende v. Shultz, 845 F.2d
1111, 1118-19 (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.
Section 1185(a)(1) 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.” This
29

statutory text likewise confirms the breadth of the President’s authority; the text does
not require any predicate findings, but simply gives the President the authority to
restrict entry to the United States according to “such limitations and exceptions as
the President may prescribe.” Id.; see Allende, 845 F.2d at 1118 & n.13; Haig v.
Agee, 453 U.S. 280, 297 (1981) (construing similar language in § 1185(b) as
“le[aving] the power to make exceptions exclusively in the hands of the Executive”).
The plain terms of Sections 1182(f) and 1185(a)(1) provide no basis for
judicial second-guessing of the President’s determination about what restrictions to
“prescribe” or what restrictions are necessary to avoid “detriment[] to the interests
of the United States.” In these circumstances, where Congress has traditionally and
expressly committed these matters to the President’s judgment and discretion, there
are no meaningful standards for review. See Doe, 486 U.S. at 600-01; Dalton v.
Specter, 511 U.S. 462, 474-76 (1994). As the Supreme Court recognized in Reno v.
American-Arab Anti-Discrimination Committee, 525 U.S. 471, 491 (1999)
(AAADC), courts are “ill equipped to determine the[] authenticity and utterly unable
to assess the[] adequacy” of the Executive’s reasons for excluding particular foreign
nationals. At a minimum, to the extent Section 1182(f) envisions any “find[ings],”
the fact that the President acts by “proclamation” suggests that they need not be
extensive and should not be subject to searching review.

30

b.

Historical practice 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 without detailed
public justifications or findings; some have discussed the President’s rationale in one
or two sentences that broadly declare the Nation’s interests.4 The only justification
provided for the Presidential action at issue in Sale, for example, was that “[t]here
continues to be a serious problem of persons attempting to come to the United States
by sea without necessary documentation and otherwise illegally.” Executive Order
No. 12,807, pmbl. pt. 4, 57 Fed. Reg. 23,133 (1992). The Supreme Court expressed
no concerns about the adequacy of that finding, ruling that “[w]hether the President’s
chosen method” made sense from a policy perspective was “irrelevant to the scope
of his authority” under Section 1182(f). Sale, 509 U.S. at 187-88.
Similarly, in 1979, when President Carter invoked Section 1185(a)(1) in
response to the Iranian hostage crisis, he made no express findings and delegated to
lower Executive Branch officials the authority to deny and revoke visas for Iranian
nationals. See Exec. Order No. 12,172, § 1-101, 44 Fed. Reg. 67,947 (1979). Courts
had no trouble upholding those restrictions. E.g., Malek-Marzban v. INS, 653 F.2d

4

E.g., Proclamation No. 8693, 76 Fed. Reg. 44,751 (2011); Proclamation
No. 8342, 74 Fed. Reg. 4093 (2009); Proclamation No. 6958, 61 Fed. Reg. 60,007
(1996); Proclamation No. 5887, 53 Fed. Reg. 43,185 (1988); Proclamation No.
5829, 53 Fed. Reg. 22,289 (1988).
31

113, 116 (4th Cir. 1981); Yassini v. Crosland, 618 F.2d 1356, 1362 (9th Cir. 1980);
Nademi v. INS, 679 F.2d 811, 813-14 (10th Cir. 1982). And when President Reagan
suspended the entry of Cuba nationals as immigrants in 1986 pursuant to 8 U.S.C.
§ 1182(f), he offered only a single sentence explaining the basis for his action. See
Proclamation No. 5517, 51 Fed. Reg. 30,470 (1986).
2.

The Proclamation Is Fully Justified By The President’s
National Security And Foreign Affairs Judgments

Here, the Presidential findings and explanation set forth in the Proclamation
amply support the exercise of his authority to impose entry restrictions under
Sections 1182(f) and 1185(a). The President imposed the entry restrictions after
reviewing the recommendations of the Acting Secretary of Homeland Security,
following a worldwide review that evaluated every country according to established
criteria. The Acting Secretary recommended entry restrictions on eight countries,
each of which was identified as “inadequate” in its information-sharing practices or
as presenting other special circumstances. See Procl. § 1(c)-(g), (i). The entry
restrictions for each country are tailored to the country’s particular circumstances
and conditions. See id. §§ 1(h)(i), 2(a)-(h).
The President found that the “entry into the United States of persons described
in Section 2 of [the] proclamation would be detrimental to the interests of the United
States, and that their entry should be subject to certain restrictions, limitations, and
exceptions.” Id. pmbl. As the President explained, the entry restrictions serve two
32

purposes. First, they “prevent the entry of those foreign nationals about whom the
United States Government lacks sufficient information to assess the risks they pose
to the United States.” Procl. § 1(h)(i); id. § 1(a), (b) (discussing the importance of
foreign governments’ information-sharing to vetting process).

Plaintiffs have

offered no basis to second-guess this national-security judgment. Cf. Department of
Navy v. Egan, 484 U.S. 518, 530 (1988). Second, the entry restrictions are “needed
to elicit improved identity-management and information-sharing protocols and
practices from foreign governments” whose nationals are subject to the restrictions.
Procl. § 1(h)(i). The diplomatic-engagement period described in the Proclamation
yielded significant improvements in foreign governments’ information sharing, id.
§ 1(e)-(g), and encouraging changes in the behavior of foreign governments through
entry restrictions is an accepted foreign-policy method, as illustrated by President
Carter’s Iranian order and President Reagan’s Cuban order. See pp. 37-38, supra.
Furthermore, both of these purposes are furthered by nationality-based entry
restrictions. Foreign governments “manage the identity and travel documents of
their nationals” and “control the circumstances under which they provide
information about their nationals to other governments.” Id. § 1(b). Because the
Proclamation’s entry restrictions seek both to protect against and to encourage
improvement of deficient information-sharing practices by certain foreign countries,
it is eminently sensible to impose those restrictions on nationals of those countries
33

traveling on those countries’ passports (and, conversely, not to apply them to dual
nationals of a covered country who are traveling on a non-covered country’s
passport, id. § 3(b)(iv)).
3.

Section 1152(a)(1)’s Prohibition On Nationality
Discrimination In Issuing Immigrant Visas Does Not
Restrict The President’s Authority To Suspend Entry

Although the district court rejected plaintiffs’ argument that the Proclamation
exceeded the President’s authority under Sections 1182(f) or 1185(a), JA 1041-53,
it held that the Proclamation’s targeted entry restrictions violate 8 U.S.C.
§ 1152(a)(1)(A), which prohibits discrimination on the basis of nationality in the
“issuance of [an] immigrant visa[],” JA 1034-40. The court erred in reading Section
1152(a) to override the President’s distinct authority under Sections 1182(f) and
1185(a), especially in light of the statutory deference afforded to the President,
contrary historical practice, and the serious constitutional concerns raised by that
interpretation.
a.

It is axiomatic that “when two statutes are capable of co-existence, it is

the duty of the courts * * * to regard each as effective.” Radzanower v. Touche Ross
& Co., 426 U.S. 148, 155 (1976). That principle applies here. 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
34

immigrant visas.” IRAP, 241 F. Supp. 3d at 554 (emphasis added). At an absolute
minimum, Section 1152(a)(1)(A) by its plain terms does not prohibit the President
from restricting entry based on nationality under Sections 1182(f) and 1185(a), even
if it were to require the State Department to issue immigrant visas to aliens whose
entry the President has suspended based on nationality. Moreover, Section 1152(a)
does not even require issuing immigrant visas to aliens whose entry has been validly
suspended based on nationality under Sections 1182(f) and 1185(a). The two sets
of statutory provisions simply operate in different spheres: Sections 1182(f) and
1185(a), like numerous other provisions of the INA, limit the universe of individuals
eligible to receive visas; Section 1152(a)(1)(A), by contrast, prohibits discrimination
on the basis of nationality within that universe of eligible individuals. Indeed, the
INA expressly requires the denial of visas to aliens who are ineligible “under section
1182.” 8 U.S.C. § 1201(g).5
Legislative history confirms that Congress understood the INA to operate in
this manner. The 1965 amendment enacting the provision codified at 8 U.S.C.
§ 1152(a)(1)(A) was designed to eliminate the country-quota system previously in

5

The district court thus erred both in relying on consular officers’ role in
implementing the Proclamation through visa denials, JA 1039, and in finding it
“highly significant that § 1152(a) explicitly excludes certain sections of the INA
from its scope * * * but * * * not § 1182(f) or § 1185(a),” JA 1036. Section
1152(a)(1)(A) applies only to those who are eligible for entry to the United States,
which necessarily excludes individuals whom the President determines are ineligible
for entry, and thus for visas, under Sections 1182(f) or 1185(a)(1).
35

effect, but it was intended to operate only as to those aliens otherwise eligible for
visas, not to modify the eligibility criteria for admission or to limit pre-existing
provisions like Sections 1182(f) or 1185(a)(1) addressing entry. See H. Rep. No. 89745, at 12 (1965) (“Under this [new] system, selection from among those eligible to
be immigrants * * * will be based upon the existence of a close family relationship
to U.S. citizens or permanent resident aliens and not on the existing basis of
birthplace or ancestry.” (emphasis added)); S. Rep. No. 89-748, at 13 (1965)
(similar).
Moreover, 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 challenged on constitutional and statutory grounds, see
Malek-Marzban, 653 F.2d at 116, and construing Section 1152(a)(1) to disable the
President from taking action against the nationals of a foreign state for foreign affairs
or national-security reasons (e.g., when on the brink of war with a country) would
of course raise serious constitutional concerns.

36

Historical practice also strongly supports the government’s interpretation of
the relevant provisions. In 1986, President Reagan suspended the immigrant entry
of “all Cuban nationals,” subject to certain exceptions, until “the Secretary of State,
after consultation with the Attorney General, determines that normal migration
procedures with Cuba have been restored.” 51 Fed. Reg. at 30,470-71. President
Carter issued an order in 1979 in response to the Iranian hostage crisis; although the
order did not itself deny or revoke visas, the President 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 (“Sanctions Against Iran”);
see also 44 Fed. Reg. 67,947 (1979). Construing Section 1152(a)(1)(A) to forbid
nationality-based restrictions on entry would mean that those measures were
unlawful.
The district court distinguished these prior Presidential actions, as well as the
brink-of-war scenario, on the ground that they were of “limited duration, such as
during a specific urgent national crisis or public health emergency.” JA 1037. But
that distinction has no textual basis in Section 1152(a). Nor is it supported by the
underlying facts; if anything, the prior suspensions were more indefinite in scope
37

than the Proclamation. President Reagan’s suspension of entry of Cuban immigrants
was to “remain in effect until such time as the Secretary of State, after consultation
with the Attorney General, determines that normal migration procedures with Cuba
have been restored.” 51 Fed. Reg. at 30,471. And President Carter’s instruction to
the State Department was to “invalidate all visas issued to Iranian citizens” and not
to reissue visas or issue new visas “except for compelling and proven humanitarian
reasons or where the national interest of our own country requires.” Sanctions
Against Iran, supra. The Proclamation, by contrast, requires periodic review of the
continuing need for the restrictions and establishes a process for recommending that
they be terminated or modified. Procl. § 4.
b.

Even assuming that Section 1152(a)(1)(A) were inconsistent with

Sections 1182(f) and 1185(a)(1), background principles of construction would
require finding that Section 1152(a)(1) gives way. Section 1185(a)(1) was amended
to its current form in 1978, after enactment of Section 1152(a)(1)(A), and as the most
recent statute, would prevail. See Foreign Relations Authorization Act, Fiscal Year
1979, Pub. L. No. 95-426, § 707(a), 92 Stat. 963, 992-93 (1978). Furthermore, while
Section 1152(a)(1)(A) establishes a general rule governing nondiscrimination in the
issuance of visas by consular officers and others involved in that process, Sections
1182(f) and 1185(a)(1) constitute more specific, and thus controlling, grants of
authority expressly and directly to the President to restrict entry of aliens to protect
38

the national interest. See Sale, 509 U.S. at 170-73; see also NLRB v. SW General,
Inc., 137 S. Ct. 929, 941 (2017).
Finally, even if the district court were correct that Section 1152(a)(1)(A)
would otherwise forbid withholding immigrant visas from aliens whose entry was
suspended, Section 1152(a)(1)(B) confirms that Section 1152(a)(1)(A) does not
“limit the authority of the Secretary of State to determine the procedures for the
processing of immigrant visa applications.” The means by which the Secretary of
State implements the Proclamation’s entry restrictions—i.e., by withholding visas
from aliens who are not eligible for entry—constitutes a “procedure[]” within the
meaning of Section 1152(a)(1)(B).
B.

The Proclamation Is Consistent With The Establishment
Clause

The district court also erred in holding that the Proclamation’s entry
restrictions likely 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
applied in the domestic context in certain circumstances, e.g., McCreary County v.
ACLU of Kentucky, 545 U.S. 844, 862 (2005).

39

1.

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

This Court’s now-vacated ruling in IRAP correctly acknowledged that
Mandel’s test applies to constitutional challenges to the exclusion of aliens abroad.
See IRAP, 857 F.3d at 588. Under that test, when the Executive gives “a facially
legitimate and bona fide reason” for excluding an alien, “courts will neither look
behind the exercise of that discretion, nor test it by balancing its justification against
the” asserted constitutional rights of U.S. citizens. Mandel, 408 U.S. at 770.
a.

Mandel compels the rejection of plaintiffs’ Establishment Clause claim.

As the district court correctly acknowledged, JA 1055, the Proclamation’s entry
restrictions rest on facially legitimate reasons: protecting national security and
encouraging foreign governments to improve their information-sharing practices.
See Procl. § 1. The Proclamation describes the global review process undertaken by
DHS, in consultation with other agencies; the neutral criteria against which all
nations were assessed; the subsequent diplomatic engagement process during which
the Department of State encouraged nations to improve their performance; and the
resulting recommendations of the Acting Secretary of Homeland Security. See id.
§ 1(a)-(f), 1(i).
The Proclamation further explains that, in accordance with the Acting
Secretary’s recommendations and after consulting with members of the Cabinet, the
40

President “craft[ed] * * * country-specific restrictions that would be most likely to
encourage cooperation given each country’s distinct circumstances, and that would,
at the same time, protect the United States until such time as improvements occur.”
See id. § 1(h)(i).

These facially legitimate and bona fide reasons for the

Proclamation’s entry restrictions readily satisfy Mandel’s test.
b.

Relying on this Court’s opinion reviewing the constitutionality of EO-

2, the district court held that Mandel’s “bona fide” requirement permits courts to
look behind the Government’s stated reasons to determine whether they were given
in good faith. JA 1055 (citing IRAP, 857 F.3d at 590-91). But IRAP’s holding on
that point is no longer good law, not only because it has been vacated as moot, but
also because it conflicts with the Supreme Court’s subsequent decision in Sessions
v. Morales-Santana, 137 S. Ct. 1678, 1693 (2017), which described Mandel’s
standard as “minimal scrutiny (rational-basis review).” Rational-basis review is
objective and does not permit probing government officials’ subjective intentions.
See Western & S. Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648,
671-72 (1981); United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980).
Moreover, even apart from Morales-Santana, IRAP’s holding was not
persuasive on its own terms, because it erroneously relied on Justice Kennedy’s
concurrence in Din. Justice Kennedy’s concurrence did not propose an enormous
loophole in Mandel, especially with respect to a formal national-security and
41

foreign-policy determination of the President. It merely hypothesized that, if the
government had not identified a factual basis for the consular officers’ decision at
issue, the plaintiff might have been able to seek “additional factual details” about the
basis of the consular officer’s decision (provided the information is not classified).
Din, 135 S. Ct. at 2141 (Kennedy, J., concurring in judgment). In contrast, when the
government does identify a factual basis—as it did in Mandel and in Din (by citing
a statutory provision that itself included sufficient factual predicates), and has also
done here through the Proclamation’s text—that is the end of the analysis. See id.
at 2140 (observing that the citation of a statutory ground of inadmissibility involving
terrorism indicates that the government “relied upon a bona fide factual basis for
denying [the] visa”). Plaintiffs’ overreading of the Din concurrence also cannot be
squared with Mandel, where the Court explicitly rejected “look[ing] behind” the
government’s stated reason for denying a waiver of inadmissibility grounds, 408
U.S. at 770, and declined Justice Marshall’s invitation in dissent to take “[e]ven the
briefest peek behind the Attorney General’s reason for refusing a waiver,” which he
asserted was a “sham.” Id. at 778; see also Morfin v. Tillerson, 851 F.3d 710, 713
(7th Cir. 2017) (holding that the concurring decision in Din “left things as Mandel
had left them” and that “Mandel tells us not to go behind a facially legitimate and
bona fide explanation”), cert. denied, 2017 WL 3136962 (Oct. 30, 2017).

42

2.
a.

The Proclamation Is Valid Under McCreary

In McCreary, the Court asked whether the challenged government

conduct had the primary purpose or effect of advancing religion. 545 U.S. at 85960. Here, 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 and not intended to
discriminate on the basis of religion.
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 Acting Secretary of Homeland Security to the
President regarding whether and what entry restrictions were necessary to address
the inadequacies identified.

The President acted in accordance with those

recommendations. Neither plaintiffs nor the district court have even suggested, let
alone demonstrated, that the Cabinet secretaries and numerous other government
officials involved in that review and consultative process culminating in the
Proclamation were acting in bad faith or harbored anti-Muslim animus.
Furthermore, 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
43

concluded that Sudan met the Acting Secretary of Homeland Security’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 a
substantial (approximately 48%) non-Muslim population (Chad). See CIA, The
World Factbook: Africa (Chad), https://www.cia.gov/library/publications/theworld-factbook/geos/cd.html. The 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
business and tourist nonimmigrant entry for nationals of Libya, Yemen, and Chad,
and imposing no exclusions on nonimmigrant entry for Somali nationals.
This particularized selection of countries and restrictions would be
nonsensical as a supposed “Muslim ban,” but is readily justified as a tailored means
of encouraging individual countries to improve inadequate information-sharing and
44

of protecting against security risks in the interim, which are obviously purely secular,
not to mention compelling, government interests.
b.

Citing McCreary as principal support, the district court held that these

features are insufficient to cure the alleged “taint” from the prior Executive Orders
and earlier campaign statements. JA 1063-64, 1072-75. As a threshold matter, the
government strongly disagrees that the history preceding the Proclamation is
evidence of anti-Muslim bias. But more importantly for present purposes, the
Proclamation is significantly different from the prior entry suspensions, both
procedurally and substantively. It thus involves nothing remotely like the history of
overt and explicit religious displays that were at issue in McCreary. The district
court’s criticisms of the Proclamation reflect exactly the kinds of improper secondguessing of national security judgments that the Supreme Court has directed the
lower courts not to attempt.
In McCreary, the Supreme Court was confronted with a history of three
successive Ten Commandments displays at a county courthouse. The first display,
of the Ten Commandments standing alone, was clearly unconstitutional under prior
Supreme Court precedent, see 545 U.S. at 868, and a second display, erected after
suit was filed, also focused on religious messages and was authorized by a resolution
that clearly endorsed religion. See id. at 870. The counties then mounted a third
display, which “quoted more of the purely religious language of the Ten
45

Commandments than the first two displays had done.” Id. at 872. The Supreme
Court concluded that all the displays plainly violated the Establishment Clause, and
that the third display in particular represented nothing more than a “litigating
position,” and was even more explicitly religious than its predecessors. Id. at 871.
McCreary is readily distinguishable in multiple respects. The Proclamation,
unlike the religious displays in McCreary, contains no textual or operational
reference to religion. The Proclamation is the result of separate action by the
President, based on the study, analysis, and recommendations of multiple
government offices and officials (including four Cabinet-level officials), none of
whom plaintiffs suggest had a religious basis for making the recommendations and
providing the advice that culminated in the Proclamation. In addition, EO-2, which
expired by its own terms, see p. 7, supra, itself expressly repudiated the notion that
it was motivated by or intended to display religious animus, see EO-2 §§ 1(b)(iv),
(h)(i). These are exactly the kinds of “genuine changes in constitutionally significant
conditions” that McCreary held defeat any claim that the government has acted with
an “implausible” secular purpose. 545 U.S. at 874.
Similarly in McGowan, the Supreme Court held that a Sunday closing law’s
secular exemptions were sufficient to establish that the law no longer was motivated
by its original religious purpose of observing the Sabbath, even though the law still
contained expressly religious references. 366 U.S. at 445. Here, likewise, the
46

limited restrictions and express exclusions for certain Muslim-majority nations (as
well as the process of review and recommendation by government officials whose
motives have never been questioned) make clear that the Proclamation implements
a good-faith and secular national-security objective. See Salazar v. Buono, 559 U.S.
700, 715-16 (2010) (plurality op.) (criticizing a district court for “dismissing
Congress’s motives” for transferring land on which a cross had been
unconstitutionally erected to a private party as “illicit” rather than attributing a
“reasonable,” lawful purpose for Congress’s actions).
c.

The district court gave several specific reasons for questioning the

Proclamation’s secular bona fides, but none withstands even minimal scrutiny, and
all

represent

an

inappropriate

effort

to

second-guess

national-security

determinations that are constitutionally committed to the Executive.
The district court first considered it significant that “the underlying
architecture of the prior Executive Orders and the Proclamation is fundamentally the
same,” reasoning that each “bans the issuance of immigrant and non-immigrant visas
on the basis of nationality to multiple majority-Muslim countries on the basis of
concerns about terrorism.” JA 1067-68. But the Proclamation’s “architecture” is in
fact fundamentally different, because it reflects a multi-agency review and
recommendation process and tailored substantive restrictions. The district court’s
troubling suggestion that none of this matters because countries that are Muslim47

majority are still included in the Proclamation threatens to permanently disable the
President from addressing terrorism-related concerns relating to nationality in the
very countries where those concerns are currently the most acute. In similar
contexts, the Supreme Court has held that the constitutionality of a facially neutral
government program “does not turn on” statistical evidence regarding the expected
religious/secular impact of that program at any given time. Zelman v. SimmonsHarris, 536 U.S. 639, 658 (2002).
The court then questioned the Proclamation’s secular purpose, asserting that
“the outcome of the DHS Review was at least partially pre-ordained.” JA 1068.
That assertion ignores the relevant EO-2 provisions governing the review process,
which directed the Secretary of Homeland Security 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) (emphases added). Nothing
in those provisions cabined the independent judgment of the Acting Secretary of
Homeland Security—whose good-faith has never been called into question— to
decide whether and which countries to recommend for appropriate entry restrictions.

48

The district court ascribed additional significance to the fact that “a
comparison of EO-2 with the Proclamation reveals that many of the criteria
considered in the DHS Review, and used to justify the ban on specific countries in
the Proclamation, were substantially similar to those used to select the list of
countries banned by EO-2.” JA 1068-69. As explained, however, the criteria used
were religion-neutral, reflect compelling government interests in national security,
and are similar to the criteria that Congress and other Presidents have relied on in
the past in previously identifying countries that pose heightened terrorism risks. See
pp. 5-7, 31-34, 40-45, supra. For example, the fact that Iran “regularly fails to
cooperate with the United States Government in identifying security risks” and “is
the source of significant terrorist threats,” Procl. § 2(b)(i), are exactly the
compelling, secular concerns that those charged with protecting our country’s
national security should be considering—and that is precisely why both the agencies
and the President chose to consider them.
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.” JA 1070. But the seemingly different treatment is instead explained by
different circumstances, as outlined in the Proclamation itself.
49

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 publicsafety 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 identity of nationals from
Venezuela.” Id. § 2(f)(i). These country-specific differences, rather than animus,
are the self-evident basis for the differing treatment.
The district court also diminished the significance of the inclusion of North
Korea in the list of countries subject to entry restrictions on the basis that the
restrictions were of “little practical consequence” because that country would likely
involve “only a fraction of one percent of all those affected by the Proclamation.”
JA 1066. The inclusion of those non-Muslim-majority countries in the Proclamation
underscores the Proclamation’s religion-neutral purpose and effect, and the
Proclamation sets forth valid reasons for concluding that the inclusion of those
countries is important.
The district court further asserted that the country-based entry restrictions in
the Proclamation are “unprecedented,” distinguishing prior country-based entry bans
50

on the basis that they applied to “a single nation” “in response to a specific
diplomatic dispute.” JA 1071. But the President determined that each of the eight
countries presented specific risks warranting entry restrictions, just as the Iran and
Cuba restrictions were the result of specific problems relating to those countries.
The entry restrictions are commensurate with the problem they are intended to
address, and that does not change simply because more than one country presents
the problem.
The district court also maintained that “[d]efendants offer no evidence * * *
showing an intelligence-based terrorism threat justifying a ban on entire
nationalities,” and suggested that individualized assessment of nationals from those
countries could adequately protect against the threat.

JA 1071.

Where the

government faces a structural problem that is common to all nationals of a foreign
country, however, it surely has the latitude to address the problem on a national
basis—particularly where one of the goals sought to be attained is to encourage that
country to change its practices nationwide to address the problem. The district
court’s reasoning was particularly problematic because it involved second-guessing
the President’s predictive judgments about what is necessary to protect the country
against national-security risks, which are entitled to the utmost deference. See
AAADC, 525 U.S. at 491 (noting that courts are generally “ill equipped to determine
the[] authenticity and utterly unable to assess the[] adequacy” of the Executive’s
51

“reasons for deeming nationals of a particular country a special threat”); Holder v.
Humanitarian Law Project (HLP), 561 U.S. 1, 28 (2010).

The district court

purported to acknowledge that it was required to defer to that judgment, yet
immediately, and improperly, rejected it in the guise of assessing whether the
government acted with a permissible secular purpose. JA 1072.
Finally, the court concluded that statements by the President and his advisors
show that the Proclamation fundamentally rests on an illicit religious purpose. The
President’s campaign statements are irrelevant for reasons already discussed, see pp.
45-47, supra, and the cited statements that occurred after the issuance of EO-2 do
not reflect any religious animus, but the compelling secular goal of protecting
national security from an amply-documented present threat.

That reading is

consistent with other statements, such as the President’s statements in an official
address praising Islam as “one of the world’s great faiths;” decrying “the murder of
innocent Muslims;” and emphasizing that the fight against terrorism “is not a battle
between different faiths, different sects, or different civilizations,” but one “between
barbaric criminals who seek to obliterate human life, and decent people of all
religions who seek to protect it.” Pres. Donald J. Trump, Speech to the Arab Islamic
American Summit (May 21, 2017), httpps://www.whitehouse.gov/the-pressoffice/2017/05/21/president-trumps-speech-arab-islamic-american-summit.

52

In sum, the district court plainly erred in holding that plaintiffs have a
likelihood of success on their Establishment Clause claim. And because plaintiffs’
Equal Protection claim rests on the same religious-purpose allegations as their
Establishment Clause claims, it fails for the same reasons.
III.

The Balance of Harms Weighs Strongly Against Preliminary Relief
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,” Agee, 453 U.S. at 307, and “the
Government’s interest in combatting terrorism is an urgent objective of the highest
order,” HLP, 561 U.S. at 28.
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, 509 U.S. at 188. Rules “concerning the
admissibility of aliens” necessarily rely on not just legislative authority but also
“inherent executive power.” Knauff, 338 U.S. at 542. 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
53

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).
2.

The district court held that “Defendants are not directly harmed by a

preliminary injunction preventing them from enforcing a Proclamation likely to be
found unconstitutional,” JA 1077-78, but that ignores the harm if, instead, the
Proclamation is ultimately held to be constitutional. The district court also expressed
the view that “[d]efendants have not shown that national security cannot be
maintained without an unprecedented eight-country travel ban,” and that “[e]ven
with an injunction, visa applicants from the Designated Countries would be screened
through the standard, individualized vetting process under which the burden is on
the individual applicants to prove that they are not inadmissible to the United States.”
54

JA 1078.

That approach improperly second-guessed the President’s national-

security determination, by disregarding that the purpose of the entry restrictions is
to encourage the covered countries to improve their information-sharing practices
and to protect this country in the interim in light of the adverse effect those
inadequate practices have on individualized vetting and screening. And it also
ignores that waivers are available on a case-specific basis under the Proclamation.
B.

A Preliminary Injunction Is Not Necessary To Prevent Any
Substantial Harm To Plaintiffs

Plaintiffs, by contrast, would suffer no cognizable harm, much less irreparable
injury, if the Proclamation’s entry restrictions are allowed to take effect. The district
court cited “prolonged separation from their family members,” JA 1077, but delay
in entry alone does not amount to irreparable harm. As already noted, visa times
vary widely, and it is not unusual for an alien to wait months or years for an
immigrant visa. Until 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.
1991).
The district court also concluded that plaintiffs’ Establishment Clause claims
show irreparable harm per se, JA 1076-77, but the cited cases all involved plaintiffs
whose own Establishment Clause rights were violated. The district court cited no
55

case supporting the proposition that a plaintiff challenging alleged religious
discrimination against third parties has established irreparable harm per se.
C.

The Global Injunction Is Improper

At a minimum, the district court erred because Article III and equitable
principles require that any 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
vastly 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 it tailored its stay to its
assessment of the equities. 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, the district court’s preliminary injunction should be
reversed. At a minimum, it should be vacated except for those aliens whose
exclusion would impose a cognizable, irreparable injury on plaintiffs.

56

Respectfully submitted,

CHAD A. READLER
Acting Assistant Attorney General

NOEL J. FRANCISCO
Solicitor General

STEPHEN M. SCHENNING
Acting United States Attorney

JEFFREY B. WALL
EDWIN S. KNEEDLER
Deputy Solicitors General

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]

NOVEMBER 2017

57

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-face requirements of
Federal Rule of Appellate Procedure 32(a)(5) and the type-volume limitations of
Rule 32(a)(7)(B). The brief contains 12,711 words, excluding the parts of the brief
excluded by Fed. R. App. P. 32(f).

/s/ Sharon Swingle
Sharon Swingle

CERTIFICATE OF SERVICE
I hereby certify that on November 1, 2017, I electronically filed the foregoing
brief with the Clerk of the Court for the United States Court of Appeals for the Fourth
Circuit by using the appellate CM/ECF system.

Participants in the case are

registered CM/ECF users, and service will be accomplished by the appellate
CM/ECF system.
/s/ Sharon Swingle
Sharon Swingle