Intl. Refugee Assistance v. Donald J. Trump

Filing 59

Joint FULL ELECTRONIC APPENDIX and full paper appendix 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. Method of Filing Paper Copies: courier. Date paper copies mailed dispatched or delivered to court: 11/02/2017. [1000185249] [17-2231, 17-2232, 17-2233, 17-2240] Sharon Swingle [Entered: 11/01/2017 06:59 PM]

Nos. 17-2231 (L), 17-2232, 17-2233, 17-2240 (Consolidated)
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, a project of the Urban Justice Center, Inc., on
behalf of itself and its clients; HIAS, INC., on behalf of itself and its clients; JOHN DOES # 1 & 3; JANE
DOE #2; MIDDLE EAST STUDIES ASSOCIATION OF NORTH AMERICA, INC., on behalf of itself
and its members; MUHAMMED METEAB; PAUL HARRISON; IBRAHIM AHMED MOHOMED;
ARAB AMERICAN ASSOCIATION OF NEW YORK, on behalf of itself and its clients,
Plaintiffs-Appellees,
and
ALLAN HAKKY; SAMANEH TAKALOO,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES
DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF STATE; OFFICE OF THE
DIRECTOR OF NATIONAL INTELLIGENCE; ELAINE DUKE in her official capacity as Acting
Secretary of Homeland Security; REX TILLERSON, in his official capacity as Secretary of State;
DANIEL R. COATS, in his official capacity as Director of National Intelligence,
Defendants – Appellants.
No. 17-2231 (L)
(8:17-cv-00361-TDC)
[Caption continued on inside cover]
JOINT APPENDIX – VOLUME 3
NOEL J. FRANCISCO
Solicitor General
JEFFREY B. WALL
EDWIN S. KNEEDLER
Deputy Solicitors General

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

IRANIAN ALLIANCES ACROSS BORDERS; JANE DOE #1; JANE DOE #2; JANE DOE #3; JANE
DOE #4; JANE DOE #5; JANE #6,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; ELAINE C. DUKE, in
her official capacity as Acting Secretary of Homeland Security; KEVIN K. MCALEENAN, in his official
capacity as Acting Commissioner of U.S. Customs and Border Protection; JAMES MCCAMENT, in his
official capacity as Acting Director of U.S. Citizenship and Immigration Services; REX TILLERSON;
JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States,
Defendants – Appellants.

No. 17-2232
(8:17-cv-02921-TDC)

EBLAL ZAKZOK; SUMAYA HAMADMAD; FAHED MUQBIL; JOHN DOE #1; JOHN DOE #2;
JOHN DOE #3,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES
DEPARTMENT OF HOMELAND SECURITY; UNITED STATES DEPARTMENT OF STATE;
ELAINE C. DUKE, in her official capacity as Acting Secretary of Homeland Security; REX
TILLERSON, in his official capacity as Secretary of State,
Defendants – Appellants.

No. 17-2233
(1:17-cv-02969-TDC)
_________________________

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, a project of the Urban Justice Center, Inc., on
behalf of itself and its clients; HIAS, INC., on behalf of itself and its clients; JOHN DOES #1 AND 3;
JANE DOE #2; MIDDLE EAST STUDIES ASSOCIATION OF NORTH AMERICA, INC., on behalf of
itself and its members; MUHAMMED METEAB; ARAB AMERICAN ASSOCIATION OF NEW
YORK, on behalf of itself and its clients,
Plaintiffs – Appellants,
and PAUL HARRISON; IBRAHIM AHMED MOHOMED; ALLAN HAKKY; SAMANEH TAKALOO,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; UNITED STATES
DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF STATE; OFFICE OF THE
DIRECTOR OF NATIONAL INTELLIGENCE; ELAINE C. DUKE, in her official capacity as Acting
Secretary of Homeland Security; REX TILLERSON, in his official capacity as Secretary of State;
DANIEL R. COATS, in his official capacity as Director of National Intelligence,
Defendants – Appellees.

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

JOINT APPENDIX
TABLE OF CONTENTS
VOLUME 1
Page(s)
International Refugee Assistance Project v. Trump,
No. 8:17-cv-00361, D. Md.:
Docket entries, No. 8:17-cv-00361 ...................................................................... JA 1
Exhibits to Amended Motion for Temporary Restraining Order
or Preliminary Injunction (Dkt. No. 95, March 11, 2017):
2d Decl. of Rebecca Heller,
(Dkt. No 95-1) .............................................................................................. JA 51
Decl. of Mark Hetfield
(Dkt. No. 95-2) ............................................................................................. JA 61
Decl. of Beth Baron,
(Dkt. No. 95-3) ............................................................................................. JA 86
Decl. of John Doe #1,
(Dkt. No. 95-4) ............................................................................................. JA 93
Decl. of John Doe #3,
(Dkt. No. 95-5) ............................................................................................. JA 97
Decl. of Mohammed Meteab,
(Dkt. No. 95-6) ........................................................................................... JA 101
Decl. of Jane Doe #2,
(Dkt. No. 95-7) ........................................................................................... JA 105
Decl. of Ibrahim Admed Mohomed,
(Dkt. No. 95-8) ........................................................................................... JA 110
Decl. of Paul Harrison,
(Dkt. No. 95-9) ........................................................................................... JA 112
Decl. of David Hausman, with Exhibits
(Dkt. No. 95-10 – 95-12) ........................................................................... JA 116
Order Granting Leave to File Second Am. Compl.
(Dkt. No. 201, Oct. 4, 2017) ......................................................................... JA 471
Second Am. Compl. (Dkt. No. 203, Oct. 5, 2017) .......................................... JA 473

VOLUME 2
IRAP Exhibits to Mot. for Prelim. Inj.
(Dkt. No. 205-1, Oct. 6, 2017):
Decl. of Grannaz Amirjamshidi, .................................................................. JA 548
Supp. Decl. of Beth Baron ........................................................................... JA 555
Decl. of Rama Issa-Ibrahim .......................................................................... JA 562
2d Decl. of John Doe #1 ............................................................................... JA 571
Decl. of John Doe #5 .................................................................................... JA 573
3d Decl. of Rebecca Heller .......................................................................... JA 576
2d Decl. of Jane Doe #2 ............................................................................... JA 581
2d Decl. of John Doe #3 ............................................................................... JA 585
Decl. of John Doe #4 .................................................................................... JA 587
Decl. of Afsaneh Khazaeli ............................................................................ JA 590
Decl. of Mohamad Mashta ........................................................................... JA 594
Decl. of Mohammed Meteab ........................................................................ JA 599
Decl. of Shapour Shirani .............................................................................. JA 602
Decl. of Fakhri Ziaolhagh............................................................................. JA 605
Decl. of Abdul Mubarez ............................................................................... JA 608
Supp. Decl. of David Hausman,
with Exhibit List and Exhibits ...................................................................... JA 614
Joint Decl. of Former National Security Officials
(Dkt. No. 211-1, Oct. 11, 2017) ................................................................... JA 892
Tr. of Prelim. Inj. Hearing (Oct. 16, 2017) ...................................................... JA 904
Mem. Op. (Dkt. No. 219, Oct. 17, 2017) ......................................................... JA 993
Order (Dkt. No. 220, Oct. 17, 2017) .............................................................. JA 1084
Notice of Appeal (Dkt. No. 223, Oct. 20, 2017)............................................ JA 1087
Notice of Cross-Appeal (Dkt. No. 229, Oct.. 23, 2017) ................................ JA 1090

ii

VOLUME 3
Iranian Alliances Across Borders v. Trump,
No. 8:17-cv-02921 D. Md.:
Docket entries, No. 8:17-cv-02921 ................................................................ JA 1095
Amend. Compl. (Dkt. No. 37, Oct. 12, 2017) ............................................... JA 1112
Exhibits to Attchmt. 2, Suppl. Mem. in Supp. of Mot for Prelim. Inj.
(Dkt. No. 26-2, Oct. 6, 2017):
Ex. 1, Decl. of Mana Kharrazi
(Dkt. No. 26-3) ...................................................................................... JA 1150
Ex. 2, Decl. of Jane Doe #1,
(Dkt. No. 26-4) ..................................................................................... JA 1157
Ex. 3, Decl. of Jane Doe #2,
(Dkt. No. 26-5) ..................................................................................... JA 1162
Ex. 4, Decl. of Jane Doe #3,
(Dkt. No. 26-6) .................................................................................... JA 1165
Ex. 5, Decl. of Jane Doe #5,
(Dkt. No. 26-7) .................................................................................... JA 1170
Ex. 6, Decl. of John Doe #6,
(Dkt. No. 26-8) .................................................................................... JA 1174
Attachments to Mem. in Supp. of Mot. for Leave to File Two
Additional Decls. (Dkt. No. 38-2, Oct. 13, 2017):
Ex. A, Decl. of Naseem Pashai,
(Dkt. No. 38-3) ...................................................................................... JA 1178
Ex. B, Decl. of Wallace Loh,
(Dkt. No. 38-4) ..................................................................................... JA 1184
Ex. C, email exchange among counsel,
(Dkt. No. 38-5) ..................................................................................... JA 1196
Notice of Appeal (Dkt. No. 50, Oct. 20, 2017).............................................. JA 1198

iii

Zakzok v. Trump,
No. 8:17-cv-02969 D. Md.:
Docket entries, No. 8:17-cv-02969, D. Md. .................................................. JA 1201
Compl. (Dkt. No. 1, Oct 6, 2017) .................................................................. JA 1214
Attachments to Mem. in Support of Mot. for Prelim. Inj.
(Dkt. No. 6, Oct 10, 2017):
Decl. of Fahed Muqbil,
(Dkt. No. 6-1) ....................................................................................... JA 1244
Decl. of Eblal Zakzok,
(Dkt. No. 6-2) ...................................................................................... JA 1249
Decl. of Sumaya Hamadmad,
(Dkt. No. 6-3) ...................................................................................... JA 1254
Decl. of John Doe #1,
(Dkt. No. 6-4) ...................................................................................... JA 1259
Decl. of Jane Doe #2,
(Dkt. No. 6-5) ...................................................................................... JA 1263
Decl. of Jane Doe #3,
(Dkt. No. 6-6) ...................................................................................... JA 1268
Decl. of Stephen Herzog, with Exhibit List, and Exhibits 1-14
(Dkt. No. 33-1 – 33-15, Oct. 14, 2017) ................................................ JA 1270
Notice of Appeal (Dkt. No. 40, Oct. 20, 2017).............................................. JA 1494

iv

District of Maryland (CM/ECF Live 6.1)

Page 1 of 17

APPEAL

U.S. District Court
District of Maryland (Greenbelt)
CIVIL DOCKET FOR CASE #: 8:17-cv-02921-TDC
Iranian Alliances Across Borders et al v. Trump et al
Assigned to: Judge Theodore D. Chuang
Case in other court: USCA, 17-02232
Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 10/02/2017
Jury Demand: None
Nature of Suit: 440 Civil Rights: Other
Jurisdiction: U.S. Government
Defendant

Plaintiff
Iranian Alliances Across Borders

represented by Mark Henry Lynch
Covington and Burling
850 St NW
One CityCenter
Washington, DC 20001
2026625544
Fax: [phone]
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Sirine Shebaya
Muslim Advocates
P.O. Box 71080
Oakland, CA 94612
202-656-4788
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Andrew Lieb Nellis
Americans United for Separation fo
Church and State
1310 L St. NW Ste. 200
Washington, DC 20005
2024662324
Fax: [phone]
Email: [e-mail]
PRO HAC VICE
ATTORNEY TO BE NOTICED
Eric Rothschild
Americans United for Separation of
Church and State

JA 1095
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Page 2 of 17

1310 L St. NW Ste. 210
Washington, DC 20005
2024663234
Fax: [phone]
Email: [e-mail]
PRO HAC VICE
ATTORNEY TO BE NOTICED
Johnathan James Smith
Muslim Advocates
PO Box 66408
Washington, DC 20035
2028972622
Fax: [phone]
Email:
[e-mail]
PRO HAC VICE
ATTORNEY TO BE NOTICED
Karun Tilak
Covington and Burling LLP
850 Tenth St. NW
Washington, DC 20001
2026625083
Fax: [phone]
Email: [e-mail]
PRO HAC VICE
ATTORNEY TO BE NOTICED
Richard B Katskee
Americans United for Separation of
Church and State
1310 L Street NW
Suite 200
Washington, DC 20005
[phone]
Fax: [phone]
Email: [e-mail]
ATTORNEY TO BE NOTICED
Marianne F Kies
Covington and Burling LLP
One CityCenter
850 Tenth St NW
Washington, DC 20001
2026625005
Fax: [phone]
Email: [e-mail]
ATTORNEY TO BE NOTICED

JA 1096
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Page 3 of 17

Plaintiff
Jane Doe #1

represented by Mark Henry Lynch
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Sirine Shebaya
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Andrew Lieb Nellis
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Eric Rothschild
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
John W. Sorrenti
Covington & Burling, LLP
850 10th Street
Washington, DC 20001
202-662-5033
Fax: [phone]
Email: [e-mail]
PRO HAC VICE
ATTORNEY TO BE NOTICED
Johnathan James Smith
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Jose Arvelo
Covington & Burling LLP
850 10th Street, NW
Washington, DC 20001
202-662-5474
Fax: [phone]
Email: [e-mail]
ATTORNEY TO BE NOTICED
Karun Tilak
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED

JA 1097
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Mark W Mosier
Covington and Burling LLP
850 10th St Nw
Washington, DC 20001
2026625435
Email: [e-mail]
PRO HAC VICE
ATTORNEY TO BE NOTICED
Rebecca Grace Van Tassell
Covington & Burling, LLP
1999 Avenue of the Stars
Los Angeles, CA 90067
4243324768
Fax: [phone]
Email: [e-mail]
ATTORNEY TO BE NOTICED
Richard B Katskee
(See above for address)
ATTORNEY TO BE NOTICED
Marianne F Kies
(See above for address)
ATTORNEY TO BE NOTICED
Plaintiff
Jane Doe #2

represented by Mark Henry Lynch
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Sirine Shebaya
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Andrew Lieb Nellis
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Eric Rothschild
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
John W. Sorrenti

JA 1098
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Page 5 of 17

(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Johnathan James Smith
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Jose Arvelo
(See above for address)
ATTORNEY TO BE NOTICED
Karun Tilak
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Mark W Mosier
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Rebecca Grace Van Tassell
(See above for address)
ATTORNEY TO BE NOTICED
Richard B Katskee
(See above for address)
ATTORNEY TO BE NOTICED
Marianne F Kies
(See above for address)
ATTORNEY TO BE NOTICED
Plaintiff
Jane Doe #3

represented by Mark Henry Lynch
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Sirine Shebaya
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Andrew Lieb Nellis
(See above for address)
PRO HAC VICE

JA 1099
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Page 6 of 17

ATTORNEY TO BE NOTICED
Eric Rothschild
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
John W. Sorrenti
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Johnathan James Smith
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Jose Arvelo
(See above for address)
ATTORNEY TO BE NOTICED
Karun Tilak
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Mark W Mosier
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Rebecca Grace Van Tassell
(See above for address)
ATTORNEY TO BE NOTICED
Richard B Katskee
(See above for address)
ATTORNEY TO BE NOTICED
Marianne F Kies
(See above for address)
ATTORNEY TO BE NOTICED
Plaintiff
Jane Doe #4

represented by Mark Henry Lynch
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

JA 1100
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Page 7 of 17

Sirine Shebaya
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Andrew Lieb Nellis
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Eric Rothschild
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
John W. Sorrenti
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Johnathan James Smith
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Jose Arvelo
(See above for address)
ATTORNEY TO BE NOTICED
Karun Tilak
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Mark W Mosier
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Rebecca Grace Van Tassell
(See above for address)
ATTORNEY TO BE NOTICED
Richard B Katskee
(See above for address)
ATTORNEY TO BE NOTICED
Marianne F Kies

JA 1101
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Page 8 of 17

(See above for address)
ATTORNEY TO BE NOTICED
Plaintiff
Jane Doe #5

represented by Mark Henry Lynch
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Sirine Shebaya
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Andrew Lieb Nellis
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Eric Rothschild
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
John W. Sorrenti
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Johnathan James Smith
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Jose Arvelo
(See above for address)
ATTORNEY TO BE NOTICED
Karun Tilak
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Mark W Mosier
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Rebecca Grace Van Tassell

JA 1102
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Page 9 of 17

(See above for address)
ATTORNEY TO BE NOTICED
Richard B Katskee
(See above for address)
ATTORNEY TO BE NOTICED
Marianne F Kies
(See above for address)
ATTORNEY TO BE NOTICED
Plaintiff
John Doe #6

represented by Mark Henry Lynch
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Sirine Shebaya
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Andrew Lieb Nellis
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Eric Rothschild
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
John W. Sorrenti
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Johnathan James Smith
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Jose Arvelo
(See above for address)
ATTORNEY TO BE NOTICED
Karun Tilak
(See above for address)
PRO HAC VICE

JA 1103
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Page 10 of 17

ATTORNEY TO BE NOTICED
Mark W Mosier
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Rebecca Grace Van Tassell
(See above for address)
ATTORNEY TO BE NOTICED
Richard B Katskee
(See above for address)
ATTORNEY TO BE NOTICED
Marianne F Kies
(See above for address)
ATTORNEY TO BE NOTICED
Plaintiff
Iranian Students' Foundation
Iranian Alliances Across Borders
Affiliate at the University of Maryland
College Park

represented by Mark Henry Lynch
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Sirine Shebaya
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Andrew Lieb Nellis
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Eric Rothschild
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Johnathan James Smith
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Karun Tilak
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED

JA 1104
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Richard B Katskee
(See above for address)
ATTORNEY TO BE NOTICED
Marianne F Kies
(See above for address)
ATTORNEY TO BE NOTICED
V.
Defendant
Donald J. Trump
in his official capacity as President of
the United States

represented by Daniel Stephen Garrett Schwei
United States Department of Justice
20 Massachusetts Ave NW Room 6145
Washington, DC 20001
2023058693
Fax: [phone]
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Defendant
Elaine C. Duke
in her official capacity as Acting
Secretary of Homeland Security

represented by Daniel Stephen Garrett Schwei
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Defendant
Kevin K. McAleenan
in his official capacity as Acting
Commissioner of U.S. Customes and
Border Protection

represented by Daniel Stephen Garrett Schwei
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Defendant
James McCament
in his official capacity as Acting
Director of U.S. Citizenship and
Immigration Services

represented by Daniel Stephen Garrett Schwei
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Defendant
Rex W. Tillerson
in his official capacity as Secretary of
State

represented by Daniel Stephen Garrett Schwei
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Defendant
represented by

JA 1105
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Jefferson Beauregard Sessions, III
in his official capacity as Attorney
General of the United States

Page 12 of 17

Daniel Stephen Garrett Schwei
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

10/02/2017

1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 04166921812.), filed by Jane Doe #5, Jane Doe #2, John Doe #6, Jane Doe #1, Jane
Doe #3, Iranian Alliances Across Borders, Jane Doe #4. (Attachments: # 1 Civil
Cover Sheet, # 2 Exhibit Attachment A)(Kies, Marianne) (Entered: 10/02/2017)

10/02/2017

2 NOTICE by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5,
John Doe #6, Iranian Alliances Across Borders re 1 Complaint, Summons to
Defendant Trump (Attachments: # 1 Supplement Summons to Defendant Duke,
# 2 Supplement Summons to Defendant McAleenan, # 3 Supplement Summons
to Defendant McCament, # 4 Supplement Summons to Defendant Tillerson, # 5
Supplement Summons to Defendant Sessions, # 6 Supplement Summons to U.S.
Attorney Schenning)(Kies, Marianne) (Entered: 10/02/2017)

10/02/2017

3 MOTION for Other Relief for Permission to Proceed Under Pseudonyma, and
to Omit Individual Plaintiffs' Home Addresses from Caption by Jane Doe #1,
Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian
Alliances Across Borders (Attachments: # 1 Text of Proposed Order, # 2
Supplement Memorandum ISO Motion, # 3 Affidavit Declaration of Sirine
Shebaya)(Kies, Marianne) (Entered: 10/02/2017)

10/02/2017

4 NOTICE of Appearance by Sirine Shebaya on behalf of All Plaintiffs (Shebaya,
Sirine) (Entered: 10/02/2017)

10/03/2017

5 Supplemental to 1 Complaint, filed by Jane Doe #1, Jane Doe #2, Jane Doe #3,
Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders,
University of Maryland College Park Chapter Complaint with Corrected
Caption (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit Attachment A)(Kies,
Marianne) (Entered: 10/03/2017)

10/03/2017

6 Supplemental to 3 MOTION for Other Relief for Permission to Proceed Under
Pseudonyma, and to Omit Individual Plaintiffs' Home Addresses from Caption
filed by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5,
John Doe #6, Iranian Alliances Across Borders, University of Maryland College
Park Chapter Motion with Corrected Caption (Attachments: # 1 Text of
Proposed Order, # 2 Supplement Memorandum ISO Motion, # 3 Affidavit
Declaration of Sirine Shebaya)(Kies, Marianne) (Entered: 10/03/2017)

10/03/2017

7 Local Rule 103.3 Disclosure Statement by Iranian Alliances Across Borders
(Shebaya, Sirine) (Entered: 10/03/2017)

10/03/2017

8 NOTICE by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5,
John Doe #6, Iranian Alliances Across Borders Plaintiffs' Notice of Relatedness
to IRAP v. Trump (No. 17-CV-00361-TDC) Under L.R. 103.1(b)(i) (Kies,
Marianne) (Entered: 10/03/2017)

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10/04/2017

9 Summons Issued 60 days as to Elaine C. Duke, Kevin K. McAleenan, James
McCament, Jefferson Beauregard Sessions, III, Rex W. Tillerson, Donald J.
Trump, U.S. Attorney and U.S. Attorney General(jf3s, Deputy Clerk) (Entered:
10/04/2017)

10/04/2017

10 MOTION to Appear Pro Hac Vice for Eric Rothschild (Filing fee $100, receipt
number 0416-6926023.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe
#4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Katskee,
Richard) (Entered: 10/04/2017)

10/04/2017

11 MOTION to Appear Pro Hac Vice for Andrew L. Nellis (Filing fee $100,
receipt number 0416-6926052.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane
Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Katskee,
Richard) (Entered: 10/04/2017)

10/04/2017

12 MOTION to Appear Pro Hac Vice for Johnathan J. Smith (Filing fee $100,
receipt number 0416-6927207.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane
Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Shebaya,
Sirine) (Entered: 10/04/2017)

10/05/2017

Case Reassigned to Judge Theodore D. Chuang. Judge George Jarrod Hazel no
longer assigned to the case. (ko, Deputy Clerk) (Entered: 10/05/2017)

10/05/2017

13 CASE MANAGEMENT ORDER. Signed by Judge Theodore D. Chuang on
10/5/2017. (jf3s, Deputy Clerk) (Entered: 10/05/2017)

10/05/2017

14 PAPERLESS ORDER granting 10 Motion to Appear Pro Hac Vice on behalf of
Eric Rothschild. Directing attorney Eric Rothschild to register online for
CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration.
Signed by Clerk on 10/5/2017. (srd, Deputy Clerk) (Entered: 10/05/2017)

10/05/2017

15 PAPERLESS ORDER granting 11 Motion to Appear Pro Hac Vice on behalf of
Andrew Nellis. Directing attorney Andrew Nellis to register online for CM/ECF
at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by
Clerk on 10/5/2017. (srd, Deputy Clerk) (Entered: 10/05/2017)

10/05/2017

16 PAPERLESS ORDER granting 12 Motion to Appear Pro Hac Vice on behalf of
Johnathan James Smith. Directing attorney Johnathan James Smith to register
online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 10/5/2017. (srd, Deputy Clerk) (Entered:
10/05/2017)

10/05/2017

17 NOTICE of Intent to file Motion by Jane Doe #1, Jane Doe #2, Jane Doe #3,
Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders
(Katskee, Richard) (Entered: 10/05/2017)

10/05/2017

18 NOTICE of Appearance by Mark Henry Lynch on behalf of Jane Doe #1, Jane
Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances
Across Borders (Lynch, Mark) (Entered: 10/05/2017)

10/05/2017

19 MOTION to Appear Pro Hac Vice for Mark W. Mosier (Filing fee $100, receipt
number 0416-6929948.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe
#4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Lynch, Mark)
(Entered: 10/05/2017)

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10/05/2017

20 MOTION to Appear Pro Hac Vice for Jose Arvelo (Filing fee $100, receipt
number 0416-6929965.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe
#4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Lynch, Mark)
(Entered: 10/05/2017)

10/05/2017

21 MOTION to Appear Pro Hac Vice for John W. Sorrenti (Filing fee $100, receipt
number 0416-6929971.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe
#4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Lynch, Mark)
(Entered: 10/05/2017)

10/05/2017

22 MOTION to Appear Pro Hac Vice for Rebecca G. Van Tassell (Filing fee $100,
receipt number 0416-6929980.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane
Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Lynch,
Mark) (Entered: 10/05/2017)

10/05/2017

23 Case Management Conference held on 10/5/2017 before Judge Theodore D.
Chuang.(FTR- S.Smith-2B.) (ss5s, Deputy Clerk) (Entered: 10/05/2017)

10/05/2017

24 NOTICE of Appearance by Daniel Stephen Garrett Schwei on behalf of All
Defendants (Schwei, Daniel) (Entered: 10/05/2017)

10/05/2017

25 ORDER granting Plaintiffs leave to file the Proposed Motion for Preliminary
Injunction; scheduling a Motion Hearing for October 17, 2017 at 9:30 a.m.
Signed by Judge Theodore D. Chuang on 10/5/2017. (jf3s, Deputy Clerk)
(Entered: 10/06/2017)

10/06/2017

26 MOTION for Preliminary Injunction by Jane Doe #1, Jane Doe #2, Jane Doe #3,
Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders
(Attachments: # 1 Text of Proposed Order, # 2 Supplement Memorandum ISO
Motion, # 3 Exhibit 1 (Kharrazi Decl.), # 4 Exhibit 2 (Doe #1 Decl.), # 5 Exhibit
3 (Doe #2 Decl.), # 6 Exhibit 4 (Doe #3 Decl.), # 7 Exhibit 5 (Doe #5 Decl.), # 8
Exhibit 6 (Doe #6 Decl.))(Lynch, Mark) (Entered: 10/06/2017)

10/10/2017

27 NOTICE rescheduling the Hearing on the Motions for Preliminary Injunction
for October 16, 2017 at 2:00 p.m. at the United States Courthouse at 6500
Cherrywood Lane in Greenbelt, Maryland. (signed by Judge Theodore D.
Chuang 10/10/2017). (tds, Deputy Clerk) (Entered: 10/10/2017)

10/11/2017

28 QC NOTICE: 19 Motion to Appear Pro Hac Vice, filed by Jane Doe #4, Jane
Doe #2, Iranian Alliances Across Borders, Jane Doe #5, Jane Doe #1, John Doe
#6, Jane Doe #3 needs to be modified. See attachment for details and corrective
actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk)
(Entered: 10/11/2017)

10/11/2017

29 QC NOTICE: 20 Motion to Appear Pro Hac Vice, filed by Jane Doe #4, Jane
Doe #2, Iranian Alliances Across Borders, Jane Doe #5, Jane Doe #1, John Doe
#6, Jane Doe #3 needs to be modified. See attachment for details and corrective
actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk)
(Entered: 10/11/2017)

10/11/2017

30 QC NOTICE: 21 Motion to Appear Pro Hac Vice, filed by Jane Doe #4, Jane
Doe #2, Iranian Alliances Across Borders, Jane Doe #5, Jane Doe #1, John Doe
#6, Jane Doe #3 needs to be modified. See attachment for details and corrective

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actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk)
(Entered: 10/11/2017)
10/11/2017

31 QC NOTICE: 22 Motion to Appear Pro Hac Vice, filed by Jane Doe #4, Jane
Doe #2, Iranian Alliances Across Borders, Jane Doe #5, Jane Doe #1, John Doe
#6, Jane Doe #3 needs to be modified. See attachment for details and corrective
actions needed regarding the signature(s) on the motion. (srds, Deputy Clerk)
(Entered: 10/11/2017)

10/11/2017

32 CORRECTED MOTION to Appear Pro Hac Vice for Jose Arvelo by Jane Doe
#1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian
Alliances Across Borders. The fee has already been paid.(Lynch, Mark)
(Entered: 10/11/2017)

10/11/2017

33 CORRECTED MOTION to Appear Pro Hac Vice for Mark W. Mosier by Jane
Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6,
Iranian Alliances Across Borders. The fee has already been paid.(Lynch, Mark)
(Entered: 10/11/2017)

10/11/2017

34 CORRECTED MOTION to Appear Pro Hac Vice for John W. Sorrenti by Jane
Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6,
Iranian Alliances Across Borders. The fee has already been paid.(Lynch, Mark)
(Entered: 10/11/2017)

10/11/2017

35 CORRECTED MOTION to Appear Pro Hac Vice for Rebecca G. Van Tassell
by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe
#6, Iranian Alliances Across Borders. The fee has already been paid.(Lynch,
Mark) (Entered: 10/11/2017)

10/12/2017

36 RESPONSE in Opposition re 26 MOTION for Preliminary Injunction filed by
Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson Beauregard
Sessions, III, Rex W. Tillerson, Donald J. Trump.(Schwei, Daniel) (Entered:
10/12/2017)

10/12/2017

37 AMENDED COMPLAINT against All Defendants, filed by Jane Doe #5, Jane
Doe #2, John Doe #6, Jane Doe #1, Jane Doe #3, Iranian Alliances Across
Borders, Jane Doe #4. (Attachments: # 1 Attachment A (Proclamation), # 2
Comparison Document)(Lynch, Mark) (Entered: 10/12/2017)

10/13/2017

38 MOTION for Leave to File Two Additional Declarations in Support of
Plaintiffs' Motion for a Preliminary Injunction re 26 MOTION for Preliminary
Injunction by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe
#5, John Doe #6, Iranian Alliances Across Borders (Attachments: # 1 Proposed
Order, # 2 Memorandum in Support of Motion, # 3 Exhibit A, # 4 Exhibit B, # 5
Exhibit C)(Lynch, Mark) (Entered: 10/13/2017)

10/13/2017

39 PAPERLESS ORDER granting 32 Corrected Motion to Appear Pro Hac Vice
on behalf of Jose Arvelo. Directing attorney Jose Arvelo to register online for
CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration.
Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered: 10/13/2017)

10/13/2017

40 PAPERLESS ORDER granting 33 Corrected Motion to Appear Pro Hac Vice
on behalf of Mark W Mosier. Directing attorney Mark W Mosier to register

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Page 16 of 17

online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered:
10/13/2017)
10/13/2017

41 PAPERLESS ORDER granting 34 Corrected Motion to Appear Pro Hac Vice
on behalf of John W. Sorrenti. Directing attorney John W. Sorrenti to register
online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered:
10/13/2017)

10/13/2017

42 PAPERLESS ORDER granting 35 Corrected Motion to Appear Pro Hac Vice
on behalf of Rebecca G Van Tassell. Directing attorney Rebecca G Van Tassell
to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-casefiling-registration. Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk)
(Entered: 10/13/2017)

10/14/2017

43 REPLY to Response to Motion re 26 MOTION for Preliminary Injunction filed
by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe
#6, Iranian Alliances Across Borders.(Lynch, Mark) (Entered: 10/14/2017)

10/16/2017

44 Preliminary Injunction Hearing held on 10/16/2017 before Judge Theodore D.
Chuang.(Court Reporter: Lisa Bankins - 4C) (klss, Deputy Clerk) (Entered:
10/16/2017)

10/17/2017

46 MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on
10/17/2017. (kns, Deputy Clerk) (Entered: 10/18/2017)

10/17/2017

47 ORDER granting in part and denying in part 26 Motion for Preliminary
Injunction. Signed by Judge Theodore D. Chuang on 10/17/2017. (kns, Deputy
Clerk) (Entered: 10/18/2017)

10/18/2017

45 PAPERLESS ORDER granting 38 Motion for Leave to File Additional
Declarations as to Additional Plaintiffs. See generally Fed. R. Civ. P. 15(a)(2)
(instructing courts to "freely give leave when justice so requires"). Signed by
Judge Theodore D. Chuang on 10/18/2017. (nr, Chambers) (Entered:
10/18/2017)

10/18/2017

48 MOTION to Appear Pro Hac Vice for Karun Tilak (Filing fee $100, receipt
number 0416-6950302.) by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe
#4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders(Lynch, Mark)
(Entered: 10/18/2017)

10/18/2017

49 PAPERLESS ORDER granting 48 Motion to Appear Pro Hac Vice on behalf of
Karun Tilak. Directing attorney Karun Tilak to use the attorney's existing
CM/ECF login and password previously issued in this Court. The account
password can be reset at http://www.mdd.uscourts.gov/electronic-case-filingpassword-reset. Signed by Clerk on 10/18/2017. (srd, Deputy Clerk) (Entered:
10/18/2017)

10/20/2017

50 NOTICE OF APPEAL as to 47 Order on Motion for Preliminary Injunction, 46
Memorandum Opinion by Elaine C. Duke, Kevin K. McAleenan, James
McCament, Jefferson Beauregard Sessions, III, Rex W. Tillerson, Donald J.
Trump. (Schwei, Daniel) (Entered: 10/20/2017)

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10/20/2017

51 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re
50 Notice of Appeal. IMPORTANT NOTICE: To access forms which you are
required to file with the United States Court of Appeals for the Fourth Circuit
please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(kns,
Deputy Clerk) (Entered: 10/20/2017)

10/20/2017

52 USCA Case Number 17-2232 for 50 Notice of Appeal filed by Jefferson
Beauregard Sessions, III, Rex W. Tillerson, Elaine C. Duke, Kevin K.
McAleenan, James McCament, Donald J. Trump. Case Manager - RJ Warren.
(kns, Deputy Clerk) (Entered: 10/20/2017)

10/20/2017

53 ORDER of USCA consolidating Case No. 17-2231(L) with Case No. 17-2232
and Case No. 17-2233 as to 50 Notice of Appeal filed by Jefferson Beauregard
Sessions, III, Rex W. Tillerson, Elaine C. Duke, Kevin K. McAleenan, James
McCament, Donald J. Trump. (kns, Deputy Clerk) (Entered: 10/20/2017)

10/20/2017

54 NOTICE by Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5,
John Doe #6, Iranian Alliances Across Borders re 43 Reply to Response to
Motion, Notice of Filing of Joint Record (Attachments: # 1 Exhibit Joint Record
1-10, # 2 Exhibit Joint Record 11-35, # 3 Exhibit Joint Record 36-42, # 4
Exhibit Joint Record 43-46, # 5 Exhibit Joint Record 47-50, # 6 Exhibit Joint
Record 51-54, # 7 Exhibit Joint Record 55-59, # 8 Exhibit Joint Record 60-61, #
9 Exhibit Joint Record 62-65, # 10 Exhibit Joint Record 66-184, # 11 Exhibit
Joint Record 185-303, # 12 Exhibit Joint Record 304-420, # 13 Exhibit Joint
Record 421-764, # 14 Exhibit Joint Record 765-776)(Kies, Marianne) (Entered:
10/20/2017)

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Case 8:17-cv-02921-TDC Document 37 Filed 10/12/17 Page 1 of 37

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IRANIAN ALLIANCES ACROSS BORDERS
154 Grand Street
New York, NY 10013
IRANIAN STUDENTS’ FOUNDATION,
IRANIAN ALLIANCES ACROSS BORDERS
AFFILIATE AT THE UNIVERSITY OF
MARYLAND COLLEGE PARK
3792 Campus Drive
College Park, MD 20742
DOE PLAINTIFFS 1–61
Plaintiffs,

Case No. 17-cv-02921
Judge Chuang

v.
DONALD J. TRUMP, in his official capacity as
President of the United States
1600 Pennsylvania Avenue
Washington, DC 20500

FIRST AMENDED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE
RELIEF

ELAINE C. DUKE, in her official capacity as
Acting Secretary of Homeland Security
3801 Nebraska Avenue NW
Washington, DC 20016
KEVIN K. MCALEENAN, in his official
capacity as Acting Commissioner of U.S.
Customs and Border Protection
1300 Pennsylvania Avenue NW
Washington, DC 20229

1

All of the individual Plaintiffs moved to waive their obligations under Local Rule 102.2(a) to
provide addresses, on the basis of their objectively reasonable fear that publicizing their home
addresses would subject Plaintiffs to harassment (potentially including violence) and threats. As
set forth below, at least three of the “Doe” Plaintiffs reside in Montgomery County, Maryland.
For similar reasons, all Plaintiffs moved to proceed anonymously.

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JAMES MCCAMENT, in his official capacity as
Acting Director of U.S. Citizenship and
Immigration Services
20 Massachusetts Avenue NW
Washington, DC 20008
REX W. TILLERSON, in his official capacity as
Secretary of State
2201 C Street NW
Washington, DC 20037
JEFFERSON BEAUREGARD SESSIONS III,
in his official capacity as Attorney General of the
United States
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530-0001
Defendants.

INTRODUCTION
1.

Plaintiffs bring this case to challenge President Donald J. Trump’s latest attempt

to implement an unlawful Muslim ban, this time through the “Presidential Proclamation
Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United
States by Terrorists or Other Public-Safety Threats” (“the Proclamation”) issued on September
24, 2017 (Attachment A to this Complaint). Plaintiffs are United States citizens and Lawful
Permanent Residents with bona fide relationships with current or potential applicants for
immigrant and non-immigrant visas to the United States from the countries affected by the
Proclamation, as well as two organizations of similarly situated individuals.
2.

President Trump has been consistent and clear about his intention to restrict

Muslims from entering the United States. Beginning on December 7, 2015, he called for “a total
and complete shutdown of Muslims entering the United States.” Throughout the remainder of
2

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his campaign, he pledged to follow through on this promise in terms that explicitly discriminated
against Muslims.
3.

In the first days of his presidency, President Trump sought to fulfill this campaign

promise by signing Executive Order 13769, entitled “Protecting the Nation from Foreign
Terrorist Entry into the United States” (the “First Executive Order”). On its face, the First
Executive Order restricted travel to the United States for 90 days for nationals of seven countries,
all Muslim-majority countries. It also put in effect a world-wide ban on refugees, with certain
exceptions for those of minority religious faiths. The First Executive Order spurred significant
litigation in several district courts and was enjoined on a national basis on February 3, 2017, on a
finding that the plaintiffs showed they were likely to succeed on the merits of their constitutional
challenges, or, in the alternative, that “they have established at least serious questions going to
the merits of their claims and the balance of equities tips sharply in their favor.” Washington v.
Trump, No. 2:17-cv-00141-JLR, ECF 52 at 4 (W.D. Wash. Feb. 3, 2017).
4.

On March 6, 2017, President Trump rescinded and replaced the First Executive

Order with Executive Order 13780 (the “Second Executive Order”). The Second Executive
Order had the same purpose and effect as the first: Both were designed to, and did, prevent
Muslims from entering the United States. The major provisions of the two orders were nearly
identical. Both included language reflecting bigotry, implicitly associating Muslims with
violence and terrorism. The Second Executive Order suffered from the same fundamental
constitutional and statutory defects as the first, so it too was blocked by the courts. Hawaii v.
Trump, 859 F.3d 741 (9th Cir. 2017); Int’l Refugee Assistance Project v. Trump, 857 F.3d 554
(4th Cir. 2017) (en banc). The Supreme Court narrowed these two preliminary injunctions to
enjoin the application of the relevant provisions with respect to visitors and immigrants to the

3

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United States only if they have a bona fide relationship with a U.S. individual or entity. Trump
v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017).2
5.

In a continuation of his unlawful Muslim ban, on September 24, 2017, President

Trump issued the Proclamation, which suspends categorically and indefinitely, without a
specified expiration date, the entry into the United States of nationals of five of the six countries
included in the Second Executive Order (Iran, Libya, Syria, Yemen, and Somalia), as well as yet
another Muslim-majority country (Chad). In an effort to disguise the Proclamation’s targeting of
Muslims, the Proclamation adds North Korea, even though virtually no North Korean nationals
travel to the United States, and adds Venezuela, but then imposes only limited restrictions on the
non-immigrant entry of just a small group of Venezuelan government officials and their
immediate family members.
6.

Despite President Trump’s attempts to cloak this latest iteration of his Muslim ban

in religiously neutral garb by invoking a national security review and including North Korea and
Venezuela, the purpose and effect of the Proclamation remain unchanged: to keep Muslims from
entering the United States.
7.

The Proclamation penalizes the nationals of the targeted Muslim-majority

countries without adequate determinations or findings as to a detrimental impact on the interests
of the United States of any of those particular nationals, and it harms U.S. citizens and U.S.
Lawful Permanent Residents with family or business ties to these countries—particularly those
with bona fide relationships with current or potential applicants for immigrant and non-

2

On October 10, 2017, the Supreme Court vacated as moot the judgment in Trump v. Int’l
Refugee Assistance Project, No. 16-1436, ___ S. Ct. ___, 2017 WL 4518553 (Oct. 10, 2017).
4

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immigrant visas to the United States from the countries affected by the Proclamation—as well as
organizations of similarly situated individuals.
8.

The Proclamation, like the First and Second Executive Orders that preceded it,

violates the Immigration and Nationality Act’s prohibition against discrimination in the issuance
of immigrant visas, 8 U.S.C. § 1152(a)(1), and exceeds the President’s authority under the
Immigration and Nationality Act’s provisions delineating classes of aliens ineligible for visas or
admission and the nature of Presidential suspension that is authorized, 8 U.S.C. § 1182.
9.

The Proclamation, like the First and Second Executive Orders that preceded it,

violates fundamental, dearly held constitutional protections. It violates the guarantees that the
government will not establish, favor, discriminate against, denigrate, or condemn any religion;
the guarantee of freedom of speech; and the guarantee of equal protection of the law. It betrays
our nation’s most central principles and forsakes our common heritage as a country founded in
part on the principle of freedom from religious persecution.
10.

As a result of the Proclamation, the individual Plaintiffs and some members of the

Iranian Students’ Foundation (“ISF”) are cut off from their family members, unable to have their
relatives visit under tourist visas or join them as immigrants to the United States. Specifically,
some members of the community ISF serves will not be able to have their families attend
commencement celebrations in the winter and spring. ISF also expects a reduction in
membership because the Proclamation will make it difficult for future Iranian students to come
to the University of Maryland and join the group. The Proclamation violates the Immigration
and Nationality Act, constitutes an exercise of authority in excess of the Act, and violates the
Establishment Clause and due process and equal protection guarantees of the Fifth Amendment.
Plaintiffs Iranian Alliances Across Borders (“IAAB”) and ISF suffer further harms to their

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constitutionally-protected rights to engage in the free flow of ideas and association under the
First Amendment.
PARTIES
A.
11.

The Plaintiffs
IAAB is a national organization, founded in 2003 by Iranian-American university

students. Its mission is to strengthen the Iranian diaspora community through leadership and
educational programming that encourages collaboration and solidarity across borders and
between communities. IAAB organizes camps for youths, regional summits, Persian-language
educational events, international conferences on the Iranian diaspora, and other activities, and in
so doing is in the practice of inviting prominent scholars and other participants from outside the
country, including from Iran, to the United States for its events. IAAB affiliates through its
Campus Action Network with a national network of affiliated Iranian-American student groups
and representatives, including groups at the University of Maryland, College Park, one of the
biggest and most active Iranian-American student groups in the nation, and a group at the
University of Maryland in Baltimore.
12.

ISF is an affiliate of IAAB. It is a student group at the University of Maryland,

College Park and is one of the oldest Iranian student organizations in the country. ISF has over
30 active student members at any given time, with many more participants attending events and
meetings throughout the year. Most of ISF’s members are first generation Iranian-Americans,
but some members hold student visas and others are non-Iranian. ISF holds weekly general body
meetings, fundraising events, and social events for students. It also regularly organizes
conferences and events with attendees and leaders from across the country. ISF hosts cultural
celebrations for the Iranian community that are attended by University students, alumni, and
members of the community. ISF provides its members and prospective members with
6

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opportunities to meet others with similar interests and backgrounds. It also seeks to keep the rich
Persian history and culture alive for the descendants of that nation and all interested in the
culture.
13.

Doe Plaintiff #1 is a U.S. citizen of Iranian origin who fled religious persecution

in Iran. From 2015 to 2016, she lived in Bethesda, Maryland, and was looking forward to
building her life there. She met her now-husband in 2015, and they married in 2016. Because
her husband does not have permission to reside in the United States, she relocated to the United
Arab Emirates on a temporary basis to live with him while his visa application to the United
States was being processed. She submitted an I-130 form for her husband in June 2016, and the
request was approved on September 20, 2017. She fears that due to the Proclamation, his visa
will now be suspended and they will be indefinitely banned from building their life together in
Maryland as they had hoped. Their residency status in the United Arab Emirates is uncertain;
they can never receive permanent residency and must continue to reapply for temporary
residency every three years. They would face persecution if forced to return to Iran.
14.

Doe Plaintiff #2 is a U.S. citizen of Iranian origin. She was born in the United

States and has lived in Maryland ever since. She graduated from the University of Maryland,
College Park in 2017 and continues to live and work in Maryland. In February 2017, she applied
for a K-visa for her fiancé, who is Iranian. He completed his interview at the U.S. Embassy in
Ankara, Turkey on August 4, 2017, and she is awaiting a final response on his application. If the
visa is not granted by October 18, 2017, Doe Plaintiff #2 will be separated indefinitely from her
fiancé, and will be forced to choose between the only home she has ever known and the love of
her life.

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15.

Doe Plaintiff #3 is a U.S. citizen of Iranian origin. She became a U.S. citizen in

1994. She has lived in Montgomery County, Maryland for many years and has been a specialeducation teacher for Montgomery County Public Schools since 2006. She has a pending I-130
application for her younger brother, who is the only remaining family member in Iran. Her
mother, father, and two brothers are all in the United States. If the Proclamation goes into full
effect on October 18, processing of her petition will be suspended and she will be indefinitely
banned from reuniting here with her brother.
16.

Doe Plaintiff #4 is a U.S. citizen of Iranian origin. She has lived in the United

States since 1978 and is a resident of Montgomery County, Maryland. She has a pending I-130
application on behalf of her sister, who is 72 years old and remains in Iran. If the Proclamation
goes into full effect on October 18, the processing of her application will be suspended and she
will be indefinitely banned from reuniting here with her sister.
17.

Doe Plaintiff #5 is an elderly Iranian national and a Lawful Permanent Resident

of the United States, who resides in Montgomery County, Maryland. She has been in the United
States since 2010 and lives with her husband and her U.S. citizen son. She applied to sponsor
her second son shortly after she became a resident, and her I-130 application was approved in
November 2010. In December 2016, her son received a letter scheduling his interview at the
U.S. Embassy in Ankara, Turkey for February 5, 2017. Because of the First Executive Order,
that interview was canceled. After the First Executive Order was enjoined by the courts, his
interview was rescheduled for March 20, 2017. He completed the interview and is now awaiting
final approval to come to the United States. Doe Plaintiff #5 is in desperate need of her son’s
presence, as she is wheelchair-bound. Her husband, who is 90 years old, also has significant
health problems. Her U.S. citizen son is their only caretaker, and they all need the assistance of

8

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her other son. If the Proclamation goes into full effect on October 18, the processing of his
application will be suspended and Doe Plaintiff #5 will be indefinitely banned from reuniting
with her son.
18.

Doe Plaintiff #6 is an Iranian national and a Lawful Permanent Resident of the

United States, who resides in Maryland. He has lived in the United States for five years and
works as an engineer. His wife, who also resides in Maryland, is Iranian and is employed at the
National Institutes of Health as a biochemistry researcher. She has a Ph.D. in Chemistry from
Johns Hopkins University. They have together made their home in Maryland. His mother-inlaw and sister-in-law have each applied for business/tourist (B1/B2) visitor visas in order to
come visit them, and both had their interviews at the U.S. Embassy in Dubai on January 5, 2017.
If their visitor visas are not issued before the Proclamation goes into full effect on October 18,
they will be indefinitely banned from coming to the United States to visit their son-in-law and
brother-in-law, as well as their daughter and sister, and they will be separated indefinitely from
some of their closest and dearest family members.
B.
19.

The Defendants
Defendant Donald J. Trump is the President of the United States and is sued in his

official capacity. President Trump issued the Proclamation that is the subject of this lawsuit.
20.

Defendant Elaine C. Duke is the Acting Secretary of Homeland Security and is

sued in her official capacity. The Department of Homeland Security (“DHS”) is an executive
department of the United States government, headquartered in Washington, DC. DHS was
involved in preparing a report that was cited in the Proclamation and is assigned several
responsibilities regarding implementation and enforcement of the Proclamation. Acting

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Secretary Duke is responsible for DHS’s administration of the Immigration and Nationality Act
(“INA”) and its implementation and enforcement of the Proclamation.
21.

Defendant Kevin McAleenan is the Acting Commissioner of U.S. Customs and

Border Protection and is sued in his official capacity. The U.S. Customs and Border Protection
(“CBP”) is an administrative agency within DHS, headquartered in Washington, DC. The
Proclamation assigns CBP various responsibilities regarding implementation and enforcement.
Acting Commissioner McAleenan is responsible for CBP’s implementation of the INA and its
implementation and enforcement of the Proclamation.
22.

Defendant James McCament is the Acting Director of U.S. Citizenship and

Immigration Services and is sued in his official capacity. The U.S. Citizenship and Immigration
Services (“USCIS”) is an administrative agency within DHS, headquartered in Washington, DC.
USCIS oversees lawful immigration to the United States. Acting Director McCament is
responsible for USCIS’s implementation of the INA and its implementation and enforcement of
the Proclamation.
23.

Defendant Rex W. Tillerson is the Secretary of State and is sued in his official

capacity. The Department of State is an executive department of the United States,
headquartered in Washington, DC. The State Department consulted on the report prepared by
DHS and is responsible for issuing visas and implementing the Proclamation. The Proclamation
assigns the State Department various responsibilities regarding implementation and enforcement.
Secretary Tillerson oversees the State Department’s activities with respect to the INA and its
implementation and enforcement of the Proclamation.
24.

Defendant Jefferson Beauregard Sessions III is the Attorney General of the

United States and is sued in his official capacity. The Department of Justice (“DOJ”) is an

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executive department of the United States, headquartered in Washington, DC. The Proclamation
assigns the Department of Justice various responsibilities regarding implementation and
enforcement. Attorney General Sessions oversees the DOJ’s activities with respect to the INA
and the implementation and enforcement of the Proclamation.
JURISDICTION AND VENUE
25.

The Court has federal question jurisdiction under 28 U.S.C. § 1331.

26.

The Court has authority to award declaratory and injunctive relief under the

Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 and the Administrative Procedure Act, 5
U.S.C. § 706.
27.

Venue is proper in this district under 28 U.S.C. § 1391(e)(1)(C).
STATEMENT OF FACTS

A.

President Trump’s Express Intent to Target Muslims for Prohibition
Against, or Restrictions on, Entry into the United States

28.

President Donald Trump made his intent to impose a “Muslim ban” against those

entering the United States a central tenet of his campaign for President and since assuming
office, he has worked to give effect to this Muslim ban through various measures, culminating in
the Proclamation.
29.

In a series of interviews in the fall of 2015, Mr. Trump stated that he would

require Muslims in the United States to register with the government, and he insisted that the
country had “absolutely no choice” but to shut down mosques.
30.

On December 7, 2015, after the attack in San Bernardino, California, Mr. Trump

released a written statement on his campaign website calling for a “total and complete shutdown
on Muslims entering the United States until our country’s representatives can figure out what is

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going on.”3 This original statement invoked invidious stereotypes of Muslims, suggesting that
all Muslims believe in “murder against non-believers who won’t convert” and “unthinkable acts”
against women. He suggested that barring immigration by Muslims was necessary to prevent
“horrendous attacks” on U.S. soil because “there is great hatred towards Americans by large
segments of the Muslim population.”4
31.

When asked that same day how customs officials would apply such a ban,

Candidate Trump said, “[T]hey would say, are you Muslim?” In response, a reporter asked, “[I]f
they say yes, they would not be allowed in the country?” Candidate Trump responded, “That’s
correct.”5
32.

This intended Muslim ban became a central talking point of the Trump campaign,

promoted by Mr. Trump and his surrogates at campaign events across the country.
33.

On January 14, 2016, when asked whether he had rethought his “comments about

banning Muslims from entering the country,” Mr. Trump responded “No.”6

3

Donald J. Trump, Donald J. Trump Statement on Preventing Muslim Immigration,
DonaldJTrump.com (Dec. 7, 2015),
https://web.archive.org/web/20170508151734/www.donaldjtrump.com/press-releases/donald-j.trump-statement-on-preventing-muslim-immigration.
4

Id.

5

Jenna Johnson & Sean Sullivan, Donald Trump explains how his ban on Muslims entering the
U.S. would work, WASH. POST (Dec. 8, 2015), https://www.washingtonpost.com/news/postpolitics/wp/2015/12/08/donald-trump-explains-how-his-ban-on-muslims-entering-the-u-s-wouldwork/?utm_term=.c0bda2a45d8b.
6

Gerhard Peters & John T. Wooley, Presidential Candidate Debates: Republican Candidates
Debate in North Charleston, South Carolina, The American Presidency Project (Jan. 14, 2016),
http://www.presidency.ucsb.edu/ws/index.php?pid=111395.
12

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Case 8:17-cv-02921-TDC Document 37 Filed 10/12/17 Page 13 of 37

34.

On March 9, 2016, Mr. Trump stated in a televised interview that “I think Islam

hates us . . . and we can’t allow people coming into this country who have this hatred of the
United States.”7
35.

On June 13, 2016, after an attack on a nightclub in Orlando, Florida, Mr. Trump

gave a speech in which he said, “I called for a ban after San Bernardino, and was met with great
scorn and anger, but now many are saying I was right to do so.” He went on to clarify that he
blamed Islam, writ large, for such attacks: “We cannot continue to allow thousands and
thousands of people to pour into our country, many of whom have the same thought process as
this savage killer.”8 He blamed “Muslim communities” for failing to “turn in the people who
they know are bad—and they do know where they are.”9
36.

On July 17, 2016, Mr. Trump was asked to respond to criticism by his running

mate (now the Vice President) that a ban on Muslims entering the country would be
unconstitutional. He responded, “So you call it territories, okay? We’re gonna do territories.”10
37.

On July 24, 2016, Mr. Trump was asked if this statement constituted a “rollback”

from his intended Muslim ban. His answer was “I don’t think so. I actually don’t think it’s a
rollback. In fact, you could say it’s an expansion. I’m looking now at territories. People were

7

Exclusive Interview by Anderson Cooper with Donald Trump, Presidential Candidate, in
Miami, Fl. (Mar. 9, 2016), http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html.
8

Transcript: Donald Trump’s national security speech, Politico (Jun. 13, 2016, 3:06 PM),
http://www.politico.com/story/2016/06/transcript-donald-trump-national-security-speech224273.
9

Id.

10

Lesley Stahl, The Republican Ticket: Trump and Pence, CBS News (Jul. 17, 2016),
http://www.cbsnews.com/news/60-minutes-trump-pence-republican-ticket/.
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so upset when I used the word Muslim. Oh, you can’t use the word Muslim. . . . And I’m okay
with that, because I’m talking territory instead of Muslim.”11
38.

On October 9, 2016, during a televised presidential debate, Mr. Trump stated that

“The Muslim ban is something that in some form has morphed into a[n] extreme vetting from
certain areas of the world.”12
39.

These remarks signal Mr. Trump’s search for a pretext to disguise blatant animus

toward Muslims and presage how his administration would carry out his unconstitutional
measure by dressing it up as a bona fide national security measure.
B.

The First Executive Order

40.

On January 27, 2017, a week after assuming office, President Trump signed

Executive Order 13769, titled “Protecting the Nation from Foreign Terrorist Entry into the
United States.”13 At the time of signing, his original December 7, 2015, statement calling for a
“total shutdown” of Muslim entrants remained live on his campaign website.
41.

At the signing ceremony, President Trump read the order’s title, and stated, “We

all know what that means.”14 The next day, President Trump’s advisor and vice chair of his
transition team, Rudy Giuliani, stated that the First Executive Order was the result of an

11

Interview by Chuck Todd with Donald Trump, Presidential Candidate on Meet the Press (Jul.
24, 2016, 11:47 AM), http://www.nbcnews.com/meet-the-press/meet-press-july-24-2016n615706.
12

Gerhard Peters & John T. Wooley, Presidential Debate at Washington University in St. Louis,
Missouri, The American Presidency Project (Oct. 9, 2016),
http://www.presidency.ucsb.edu/ws/index.php?pid=119038.

13

82 Fed. Reg. 8977 (Jan. 27, 2017).

14

Matt Shuham, Trump Signs Executive Order Laying Out ‘Extreme Vetting,’ Talking Points
Memo (Jan. 27, 2017, 4:56 PM), http://talkingpointsmemo.com/livewire/trump-signs-vettingexecutive-order.
14

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Case 8:17-cv-02921-TDC Document 37 Filed 10/12/17 Page 15 of 37

instruction by President Trump to him to find a way to implement a “Muslim ban” “legally.”15
Three days later, on January 30, President Trump referred on his Twitter account to the First
Executive Order as “the ban.”16
42.

The First Executive Order banned entry of nationals of seven Muslim-majority

countries17 for 90 days, suspended the entire U.S. Refugee Admissions Program for 120 days,
established a policy of prioritizing certain religious denominations over others upon resuming the
Refugee program, and indefinitely barred entry of all Syrian refugees.18
43.

In its “Purpose” section, the First Executive Order explicitly relied on negative

stereotypes about Islam, stating that the United States should not admit individuals who “place
violent ideologies over American law” or engage in acts of violence “including ‘honor killings,’
[or] other forms of violence against women.”19
44.

An overt preference for Christian refugees was one of the objectives of the First

Executive Order. Section 5(b) directed the Secretary of State, in consultation with the Secretary
of Homeland Security, to give priority to refugee claims made by persons fleeing “religious-

15

See Rebecca Savransky, Giuliani: Trump asked me how to do a Muslim ban ‘legally,’ The Hill
(Jan. 29, 2017, 8:48 AM), http://thehill.com/homenews/administration/316726-giuliani-trumpasked-me-how-to-do-a-muslim-ban-legally.
16

Donald J. Trump (@realDonaldTrump), Twitter (Jan. 30, 2017 5:31AM),
https://twitter.com/realdonaldtrump/status/826060143825666051?lang=en (“If the ban were
announced with a one week notice, the ‘bad’ would rush into our country during that week. A
lot of bad ‘dudes’ out there!”).
17

Some of the targeted countries have far more than simple Muslim majority. In Iran and
Yemen for instance, over 99% of the population is Muslim. The World Factbook: Middle East:
Iran, CIA, https://www.cia.gov/library/publications/the-world-factbook/geos/ir.html (last visited
October 2, 2017); The World Factbook: Middle East: Yemen, CIA,
https://www.cia.gov/library/publications/the-world-factbook/geos/ym.html (last visited October
2, 2017).
18

See 82 Fed. Reg. 8977 §§ 3(c), 5(a)-(c).

19

Id. § 1.
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based persecution,” but only if the claimant belonged to a “minority religion in the individual’s
country of nationality.”20 Although this exception was not expressly limited to religious
minorities residing in Muslim-majority countries, President Trump explained in an interview that
this exception was intended to give priority to Christian refugees over their Muslim
counterparts.21
45.

Like the current Proclamation, the First Executive Order attempted to mask its

unconstitutional purposes with national security and foreign policy rationales, suggesting that its
implementation would protect the country from terrorists.
46.

The First Executive Order was immediately met with a series of legal challenges

across the country. The day after the First Executive Order was issued, the U.S. District Court
for the Eastern District of New York granted an Emergency Motion for Stay of Removal,
enjoining the government from removing individuals with approved applications under the
Refugee Admissions Program, holders of visas, and other individuals legally authorized to enter
the United States from the seven countries designated in the First Executive Order. Darweesh v.
Trump, No. 1:17-cv-00480, ECF 8 at 2 (E.D.N.Y. Jan. 28, 2017). It did so on the basis that the
petitioners had a strong likelihood of success in establishing that removal would violate their
rights to due process and equal protection, and that there was imminent danger of “substantial
and irreparable injury to refugees, visa-holders, and other individuals from nations subject to”
the First Executive Order. Id.

20

Id. § 5(e).

21

David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be
Given Priority As Refugees, CBN News (Jan. 27, 2017),
http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusive-president-trumpsays-persecuted-christians-will-be-given-priority-as-refugees.
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47.

On February 3, 2017, the U.S. District Court for the Western District of

Washington issued a Temporary Restraining Order enjoining enforcement of several sections of
the First Executive Order on a nationwide basis. Washington v. Trump, No. 2:17-cv-00141-JLR,
ECF 52 at 5 (W.D. Wash. Feb. 3, 2017). That order was upheld by the U.S. Court of Appeals for
the Ninth Circuit. Washington v. Trump, 847 F.3d 1151, 1156 (9th Cir. 2017).
48.

During the pendency of the Washington case, the U.S. District Court for the

Eastern District of Virginia preliminarily enjoined Section 3(c) of the First Executive Order,
finding that the statements made by President Trump and his Administration demonstrated an
intent to ban Muslims from the United States, and that the plaintiffs were therefore likely to
succeed on the merits of their Establishment Clause claims. See Aziz v. Trump, No. 1:17-cv00116-LMB-TCB, ECF 111 at 7–9, 20 (E.D. Va. Feb. 13, 2017).
49.

One week after the Ninth Circuit’s decision in Washington v. Trump, the

Department of Justice informed the Ninth Circuit that the President intended to rescind the First
Executive Order and replace it with a “new, substantially revised Executive Order to eliminate
what the panel erroneously thought were constitutional concerns.” Defendants-Appellants’
Supplemental Brief on En Banc Consideration, Washington v. Trump, No. 17-35105, ECF 154 at
4 (9th Cir. Feb. 16, 2017).
50.

On February 21, 2017, a White House Senior Policy Advisor elaborated during an

interview that the intended revised executive order would include “mostly minor technical
differences” but “[f]undamentally, you’re still going to have the same basic policy outcome for
the country.”22
22

Matt Zapotosky, A new travel ban with ‘mostly minor technical differences’? That probably
won’t cut it, analysts say, Wash. Post (Feb. 22, 2017),
https://www.washingtonpost.com/world/national-security/a-new-travel-ban-with-mostly17

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Case 8:17-cv-02921-TDC Document 37 Filed 10/12/17 Page 18 of 37

51.

On February 24, 2017, the Associated Press obtained a DHS report prepared at

the request of the Acting Under Secretary for Intelligence and Analysis.23 That report found that
citizenship is “likely an unreliable indicator” of terrorist activity,24 despite the First Executive
Order’s supposed purpose to protect the nation from foreign terrorists.
C.

The Second Executive Order

52.

On March 6, 2017, President Trump issued a new executive order with the same

name.25 The Second Executive Order removed Iraq from the list of countries from which
nationals were categorically banned from entry into the United States, but subjected Iraqis
entering the United States to enhanced vetting.26 The Second Executive Order also eliminated
the priority for refugees of minority religions but still referenced “acts of gender-based violence
against women, including so-called ‘honor killings’ in the United States by foreign nationals.”27
53.

The Second Executive Order also directed the Secretary of Homeland Security to

“conduct a worldwide review” to determine what information the U.S. government needed from
foreign governments to adjudicate visa applications.28
54.

On March 15, 2017, the U.S. District Court for the District of Hawaii issued a

nationwide temporary restraining order against Sections 2 and 6 of the Second Executive Order.

minortechnical-differences-that-probably-wont-cut-it-analysts-say/2017/02/22/8ae9d7e6-f91811e6-bf01-d47f8cf9b643_story.html.
23

Rick Jervis, DHS memo contradicts threats cited by Trump’s travel ban, USA Today (Feb. 24,
2017), http://www.usatoday.com/story/news/2017/02/24/dhs-memo-contradicttravel-bantrump/98374184/.
24

Id.

25

82 Fed. Reg. 13209 (March 6, 2017).

26

Id. § 4.

27

Id. § 11(a)(iii).

28

Id. § 2(a).
18

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Hawaii v. Trump, 241 F. Supp. 3d 1119, 1140 (D. Haw. 2017).29 It did so on the basis that the
plaintiffs “met their burden of establishing a strong likelihood of success on the merits of their
Establishment Clause claim.” Id. at 1123.
55.

The next day, this Court issued a preliminary injunction against enforcement of

Section 2(c) of the Second Executive Order (the provision restricting entry into the United States
by nationals of Iran, Syria, Yemen, Sudan, Libya, and Somalia). Int’l Refugee Assistance
Project v. Trump, 241 F. Supp. 3d 539, 565–66 (D. Md. 2017). The Court ruled that the
plaintiffs showed a likelihood of success on the merits of their Establishment Clause challenge.
Id. at 564.
56.

Speaking at a rally in Nashville, Tennessee, on the same day that the Hawaii

Court issued its ruling, President Trump stated that the Second Executive Order was a “watereddown version” of the first one and that “we ought to go back to the first one and go all the
way.”30
57.

On May 25, 2017, the U.S. Court of Appeals for the Fourth Circuit upheld in

large part the nationwide injunction issued by this Court. IRAP, 857 F.3d at 606. The
government filed a petition for writ of certiorari in the U.S. Supreme Court on June 1, 2017. On
the same day, the government filed with the Supreme Court an application for a stay of the
injunctions in both IRAP v. Trump and Hawaii v. Trump (the latter of which was still pending on
appeal in the Ninth Circuit).

29

The Ninth Circuit lifted the injunction with respect to the review and reporting provisions of
the Second Executive Order on June 12, 2017. Hawaii, 859 F.3d at 786.

30

Matt Zapotosky, et al., Federal judge in Hawaii freezes President Trump’s new entry ban,
Wash. Post (Mar. 16, 2017), https://www.washingtonpost.com/local/social-issues/lawyers-faceoff-on-trump-travel-ban-in-md-court-wednesday-morning/2017/03/14/b2d24636-090c-11e793dc-00f9bdd74ed1_story.html?utm_term=.bf85c7c44a4c.
19

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Case 8:17-cv-02921-TDC Document 37 Filed 10/12/17 Page 20 of 37

58.

On June 12, 2017, the Ninth Circuit ruled on the Hawaii injunction, unanimously

ruling in favor of the plaintiffs and upholding the injunction in large part. 859 F.3d at 741.
Rather than relying on the constitutional grounds cited by the district court, the Ninth Circuit
held that portions of the Second Executive Order likely exceeded the President’s authority under
the INA. Id.
59.

The provisions of the Second Executive Order were originally scheduled to end

on June 14, 2017, raising questions about whether the appeal to the Supreme Court might be
moot. That day, however, the White House issued a Presidential Memorandum delaying the start
date of each of the provisions that had been enjoined by the courts until 72 hours after the
injunctions were lifted or stayed as to those provisions.
60.

On June 26, 2017, the Supreme Court granted the petitions for certiorari. It

consolidated the cases and set them for argument during the first argument session of the Court’s
next Term, in October 2017, and ordered the parties to address in their briefing the additional
question whether the challenges became moot on June 14. 137 S. Ct. at 2087. The Court also
stayed the preliminary injunctions “to the extent the injunctions prevent enforcement of § 2(c)
with respect to foreign nationals who lack any bona fide relationship with a person or entity in
the United States.” Id.31 The Ninth Circuit reviewed the District of Hawaii’s modified
injunction, and in so doing ruled that the district court did not err in including grandparents,
grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of
persons in the United States within the definition of bona fide close familial relationships.

31

The Supreme Court’s order outlined the requirements for a bona fide relationship: “For
individuals, a close familial relationship is required.” For entities, “the relationship must be
formal, documented, and formed in the ordinary course, rather than for the purpose of evading
EO-2.” 137 S.Ct. at 2088.
20

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Case 8:17-cv-02921-TDC Document 37 Filed 10/12/17 Page 21 of 37

Hawaii v. Trump, __ F.3d __, 2017 WL 3911055 at *9 (9th Cir. Sept. 7, 2017). On October 10,
2017, the Supreme Court vacated as moot the judgment in Trump v. Int’l Refugee Assistance
Project, No. 16-1436, ___ S. Ct. ___, 2017 WL 4518553 (Oct. 10, 2017).
61.

During the litigation prompted by the Second Executive Order, President Trump

continued to make official statements underscoring that the Executive Orders, in each iteration,
were intended to restrict Muslims from entering the United States. In response to a terrorist
attack in London on September 15, 2017, for example, President Trump tweeted that “[t]he
travel ban into the United States should be far larger, tougher and more specific—but stupidly,
that would not be politically correct!”32
D.

The Proclamation

62.

On September 24, 2017, President Trump issued the Proclamation, which now

expands the Muslim ban to a ban of indefinite duration against the entry into the United States of
nationals of the listed Muslim-majority countries, including individuals with bona fide
relationships with American citizens and Lawful Permanent Residents.33 Unlike the two
Executive Orders, there is no time limit in the Proclamation; affected persons are indefinitely
banned from entering the United States.
63.

The Proclamation expressly refers to the Second Executive Order, does not

rescind or nullify the vast majority of the provisions of the Second Executive Order, and imposes

32

Donald J. Trump (@realDonaldTrump), Twitter (Sept. 15, 2017, 3:54 AM),
https://twitter.com/realdonaldtrump/status/908645126146265090?lang=en.
33

Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting
Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, The White
House: Office of the Press Secretary (Sept. 24, 2017), Attach. A;
https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-andprocesses-detecting-attempted-entry.
21

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the indefinite ban against entry into the United States as immigrants on nationals of the following
six Muslim-majority countries, and broad bans on certain visas, with limited exceptions,34 as
follows:
a. Chad: All nationals of Chad are banned from entry into the United States as
immigrants or under business (B-1), tourist (B-2), or business/tourist (B-1/B-2)
visas.35
b. Iran: All nationals of Iran are banned from entry into the United States, except
under student and exchange visitor visas (F, M, and J), and such student and
exchange visitor visa applicants are subject to unspecified “enhanced screening
and vetting requirements.”36
c. Libya: All nationals of Libya are banned from entry into the United States as
immigrants or under business (B-1), tourist (B-2), or business/tourist (B-1/B-2)
visas.37
d. Syria: All nationals of Syria are banned from entry into the United States.38

34

The visa bans outlined in Section 2 of the Proclamation do not apply to lawful permanent
residents of the United States; foreign nationals admitted to the United States on or after the
applicable effective date of the Proclamation; “any foreign national who has a document other
than a visa—such as a transportation letter, an appropriate boarding foil, or an advance parole
document—valid on the applicable effective date under section 7 of this proclamation or issued
on any date thereafter”; dual nationals; foreign nationals traveling on a diplomatic or diplomatictype visa, NATO visa, C-2 visa, or G-1, G-2, G-3 or G-4 visa; foreign nationals who have been
granted asylum; refugees who have already been admitted; or individuals who have been granted
relief under the Convention Against Torture. Id. § 3(b).
35

Id. § 2(a)(ii).

36

Id. § 2(b)(ii).

37

Id. § 2(c)(ii).

38

Id. § 2(e)(ii).
22

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e. Yemen: All nationals of Yemen are banned from entry into the United States as
immigrants or under business (B-1), tourist (B-2), or business/tourist (B-1/B-2)
visas.39
f. Somalia: All nationals of Somalia are banned from entry into the United States as
immigrants. Somali nationals traveling on non-immigrant visas are subject to
unspecified “additional scrutiny.”40
64.

The Proclamation’s restrictions that apply to individuals who were subject to the

operative provisions of the Second Executive Order—nationals from Iran, Libya, Somalia,
Yemen, and Syria who do not have a credible claim of a bona fide relationship with a person or
entity in the United States—went into effect on September 24, 2017. All of the Proclamation’s
other restrictions are set to go into effect on October 18, 2017.
65.

The bans on entry into the United States by nationals of these Muslim-majority

countries mean that U.S. citizens and Lawful Permanent Residents cannot reunite in the United
States with their spouses, children, and parents who are nationals of countries subject to the
Proclamation. And the Proclamation purports to justify its blanket restrictions on immigrant
entry from all of these Muslim-majority countries by observing that Lawful Permanent Residents
receive “more enduring rights” and are therefore “more difficult to remove than
nonimmigrants.”41
66.

In an effort to disguise the underlying intent to ban entry of Muslims into the

United States, the Proclamation—unlike its predecessor Executive Orders—also imposes

39

Id. § 2(g)(ii).

40

Id. § 2(h)(ii).

41

Id. § 1(h)(ii).
23

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nominal restrictions relating to nationals of two non-Muslim-majority countries: North Korea
and Venezuela. The Proclamation bans immigrant and non-immigrant visas for North Korean
nationals (except for the limited exceptions in § 3(b)), but the number of visas issued each year
to North Korean nationals is extraordinarily low.42 And unlike the restrictions imposed for the
Muslim-majority countries, most nationals of Venezuela generally are not subject to a ban; the
Proclamation applies solely to a small group of officials of the Venezuelan government and their
immediate family traveling under certain classes of non-immigrant visas.43 The additional travel
restrictions involving these two non-Muslim-majority countries are thus without practical effect,
and in any event cannot transform the unconstitutional Muslim ban into a permissible nationalsecurity measure.
67.

Excluding the makeweight additions of North Korea and Venezuela, which are

subject to only negligible impacts, the Proclamation restricts entry of more than 157 million
nationals of Chad, Iran, Libya, Somalia, Syria, and Yemen. Of those nationals, a conservative
estimate is that at least 137 million of those people—over 87%—are Muslim.44

42

For example, according to the 2015 Yearbook of Immigration Statistics published by DHS,
only 99 non-immigrants from North Korea were admitted to the United States in 2015. Table
26: Nonimmigrant Admissions (I-94 Only) By Region And Country Of Citizenship: Fiscal Years
2013 To 2015, Homeland Security, https://www.dhs.gov/immigrationstatistics/yearbook/2015/table26 (last published Dec. 15, 2016). Similarly, only 55 people from
North Korea obtained Lawful Permanent Resident status in 2015. See Table 3. Persons
Obtaining Lawful Permanent Resident Status By Region And Country Of Birth: Fiscal Years
2013 To 2015, Homeland Security, https://www.dhs.gov/immigrationstatistics/yearbook/2015/table3 (last published Dec. 15, 2016).
43

Attach. A § 2(f)(ii).

44

The World Factbook, Country Comparison: Population, CIA
https://www.cia.gov/library/publications/the-world-factbook/rankorder/2119rank.html (last
visited Oct. 1, 2017). The Factbook lists the populations of the six Muslim-majority countries
subject to the Proclamation, in the total amount of more than 157 million people, as well as the
estimated percentages of Muslims in each country. This calculation excludes the entire Muslim
population of Somalia, for which information was not available; this suggests that the true
24

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68.

Also to try to disguise its underlying religious purpose, the Proclamation purports

to be based on the worldwide review of information-sharing practices, policies, and capabilities
of foreign countries directed by the Second Executive Order. The Proclamation states that the
Secretary of Homeland Security, with assistance from the Secretary of State and Director of
National Intelligence, “developed a baseline for the kinds of information required from foreign
governments” regarding individuals seeking entry into the United States,45 and evaluated each
country against this baseline.46 The Proclamation states that the Secretary of Homeland Security
submitted a report to the President on July 9, 2017, which developed that baseline.47 The
Proclamation further explains that the Department of Homeland Security, in coordination with
the State Department, “collected data,” “measured performance,” and “evaluated risks”
associated with each country that they assessed and evaluated against the baseline, culminating
in their identification of 16 countries as being “inadequate” and another 31 as “at risk” of
becoming inadequate.48
69.

The contents of the Department of Homeland Security’s review and evaluation

have not been made public, despite discussion in the Proclamation indicating that portions have
been shared with foreign governments during a “50-day engagement period” with other countries

proportion of the nationals subject to the ban who are Muslim is actually considerably higher
than 87%.
45

Attach. A § 1(c).

46

Id. §§ 1(d), (e).

47

Id. § 1(c).

48

Id. § 1(d), (e).
25

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with respect to the baseline,49 and indicating that the review and evaluation contain information
similar to that set forth publicly in the First and Second Executive Orders.
70.

The government of Chad issued a statement on September 25, 2017, expressing

“astonishment” and “incomprehension in the face of the official reasons for [the] decision” to
extend the ban against entry to the United States to nationals of Chad.50
71.

The Proclamation states that the Secretary of Homeland Security “assesse[d]”

seven countries to “have ‘inadequate’ identity-management protocols, information-sharing
practices, and risk factors with respect to the baseline . . . such that entry restrictions and
limitations are recommended: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen.”51
The Secretary submitted a report on September 15, 2017, to the President “recommending entry
restrictions and limitations” on nationals of the seven countries, but the specifics of those
recommendations are not provided in the Proclamation. He also “assesse[d]” that Iraq “did not
meet the baseline” but declared that “additional scrutiny” was recommended nonetheless.
Although Somalia was not similarly “assessed” by the Secretary, he determined that “special
circumstances” warrant “entry restrictions, limitations, and other measures” for nationals of
Somalia.52 The Proclamation states that the President reviewed the report and imposed the
“restrictions and limitations” by the proclamation because, in his judgment, they were necessary,

49

Id. § 1(f).

50

Helene Cooper, Michael D. Shear, & Dionne Searcey, Chad’s Inclusion in Travel Ban Could
Jeopardize American Interests, Officials Say, N.Y. Times (Sept. 26, 2017),
https://www.nytimes.com/2017/09/26/world/africa/chad-travel-ban-american-interests.html.

51

Attach. A § 1(g).

52

Id. § 1(i).
26

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among other reasons, “to elicit improved identity-management and information-sharing protocols
and practices from foreign governments.”53
72.

The Proclamation applies to nationals of the listed countries regardless of where

they currently reside, including those who reside in other countries that have not been identified
as having “‘inadequate’ identity-management protocols, information-sharing practices, and risk
factors”—and even if those persons have resided outside their country of origin for their entire
lives, and even if those persons reside outside their country of origin because of fear of
persecution. This categorical ban on the entry into the United States of more than 157 million
nationals of six Muslim-majority nations cannot be justified by a single report prepared in a
matter of months on worldwide practices, and cannot be reconciled with the framework of the
INA.
73.

The Proclamation’s purported reliance on various criteria and imposition of

restrictions on North Korean nationals and on a small group of Venezuelan government officials
paper over the legal and constitutional defects of the predecessor expressions of the Muslim ban
with post-hoc national security justifications. The national-security and other purported
rationales for the bans imposed by the Proclamation on millions of Muslims from the several
Muslim-majority countries, which disproportionately harm their American Muslim relatives, are
not bona fide reasons for the Proclamation.
74.

The recently generated national security rationale cannot wipe away the anti-

Muslim bias that has animated President Trump’s dogged efforts to fulfill his promise to ban
Muslims from entering this country. Indeed, the history of the President’s failed attempts to
enact his intended Muslim ban through two Executive Orders supports the inference that the

53

Id. § 1(h)(i).
27

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national security report is a pretext. And even if the national security report identifies legitimate
vetting and information-sharing issues with respect to the specified countries, the categorical and
undifferentiated ban of at least 137 million Muslims is a wildly overbroad response that violates
both the INA and the Constitution.
CAUSES OF ACTION
FIRST CLAIM FOR RELIEF
(Violation of the Immigration and Nationality Act)
(All Parties Against All Defendants)
75.

Plaintiffs repeat and incorporate by reference each and every allegation contained

in the preceding paragraphs as if fully set forth herein.
76.

The Immigration and Nationality Act (“INA”) provides that “no person shall

receive any preference or priority or be discriminated against in the issuance of an immigrant
visa because of the person’s race, sex, nationality, place of birth, or place of residence.” 8
U.S.C. § 1152(a)(1)(A).
77.

The Proclamation violates the INA by discriminating on the basis of nationality.

78.

Defendants’ violation causes ongoing harm to Plaintiffs.

SECOND CLAIM FOR RELIEF
(Exceeding the Executive’s Authority Under the Immigration and Nationality Act)
(All Parties Against All Defendants)
79.

Plaintiffs repeat and incorporate by reference each and every allegation contained

in the preceding paragraphs as if fully set forth herein.
80.

Congress established a detailed framework in the INA, 8 U.S.C. § 1182, of

specific criteria for “classes of aliens ineligible for visas or admission,” 8 U.S.C. § 1182(a),
including on “security and related grounds,” 8 U.S.C. § 1182(a)(3), specifically terrorism, 8
U.S.C. § 1182(a)(3)(B), 1182(a)(3)(F), and foreign policy, 8 U.S.C. § 1182(a)(3)(C). Section
1182 provides for suspension of entry or imposition of restrictions on aliens by the President “for
28

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such period” as deemed necessary if he “finds” that entry of the aliens or class of aliens “would
be detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). The INA further
addresses aspects of immigration and other entry into the United States in various provisions
throughout the statute.
81.

The Proclamation exceeds the Executive’s authority under the INA, including

under 8 U.S.C. §§ 1182(f).
82.

Defendants’ violation causes ongoing harm to Plaintiffs.
THIRD CLAIM FOR RELIEF
(Violation of the Establishment Clause of the First Amendment)
(All Plaintiffs Against All Defendants)

83.

Plaintiffs repeat and incorporate by reference each and every allegation contained

in the preceding paragraphs as if fully set forth herein.
84.

The Establishment Clause of the First Amendment to the U.S. Constitution

prohibits the government from “differentiat[ing] among religions.” Hernandez v. C.I.R., 490
U.S. 680, 695 (1989) (citing Larson v. Valente, 456 U.S. 228 (1982)).
85.

The Establishment Clause further prohibits the government from taking actions

that lack a secular purpose or have the principal or primary effect of advancing or inhibiting
religion.
86.

The Establishment Clause prohibits the government from endorsing or

disapproving of a religion or particular religious beliefs.
87.

The Proclamation impermissibly discriminates on the basis of religion and

constitutes an unconstitutional denominational preference against Muslims. Despite being
cloaked in the rhetoric of national security, the Proclamation—like the Executive Orders that
preceded it—is intended to and does disproportionately harm Muslims because of their faith.
The six countries whose nationals the Proclamation meaningfully restricts—Chad, Iran, Libya,
29

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Syria, Yemen, and Somalia—are all Muslim-majority countries. The other two countries
nominally covered by the ban are North Korea, whose nationals currently receive a vanishingly
small number of visas, and Venezuela, whose nationals are affected only if they are family
members of government officials “involved in screening and vetting procedures” who are not
seeking to immigrate to the United States. Thus the Proclamation’s effects on non-Muslim
countries’ nationals are de minimis. The continued outsized effect on Muslim entrants
demonstrates that the Proclamation discriminates on the basis of religion.
88.

In addition, the Proclamation violates the Establishment Clause because the

President’s repeatedly stated intent to ban Muslims from immigrating to or entering the United
States and the Proclamation’s direct lineage from and effectuation of those policy statements,
demonstrate that the Proclamation lacks a predominantly secular purpose and that it has a
principal effect of discriminating against, denigrating, and disfavoring Muslims.
89.

Finally, the Proclamation communicates official disapproval of Islam,

stigmatizing Plaintiffs and their religion.
90.

Defendants’ violation causes ongoing harm to Plaintiffs.
FOURTH CLAIM FOR RELIEF
(Violation of the Free Speech Clause of the First Amendment)
(Iranian Alliances Across Borders Against All Defendants)

91.

Plaintiffs repeat and incorporate by reference each and every allegation contained

in the preceding paragraphs as if fully set forth herein.
92.

The Free Speech Clause of the First Amendment protects the “right to receive

information and ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969).
93.

The Proclamation violates the right of IAAB to receive information and ideas

from the Persian scholars (many of whom are nationals of Iran) whom IAAB routinely invites to
speaking engagements and other cultural community-building events.
30

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94.

Defendants’ violation causes ongoing harm to IAAB.
FIFTH CLAIM FOR RELIEF
(Violation of Equal Protection Under the Fifth Amendment)
(All Plaintiffs Against All Defendants)

95.

Plaintiffs repeat and incorporate by reference each and every allegation contained

in the preceding paragraphs as if fully set forth herein.
96.

Plaintiffs are entitled to the protections of the Fifth Amendment.

97.

The Due Process Clause of the Fifth Amendment prohibits the federal

government from denying equal protection of the law.
98.

The Proclamation was motivated by animus and a desire to harm a particular

99.

The Proclamation has a disparate impact, targeting individuals for discriminatory

group.

treatment on the basis of religion and national origin. The discriminatory terms and application
of the Proclamation are not justified by legitimate governmental interests, much less by
compelling ones.
100.

Defendants have violated the equal protection guarantee of the Fifth Amendment.

101.

Defendants’ violation causes ongoing harm to Plaintiffs.
SIXTH CLAIM FOR RELIEF
(Violation of Procedural Due Process under the Fifth Amendment)
(All Plaintiffs Against All Defendants)

102.

Plaintiffs repeat and incorporate by reference each and every allegation contained

in the preceding paragraphs as if fully set forth herein.
103.

The Due Process Clause of the Fifth Amendment prohibits the federal

government from depriving individuals of their liberty interests without due process of law.
104.

Congress has granted statutory rights and prescribed procedures applicable to

prospective immigrants and refugees. Due process rights attach to those statutory rights.
31

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105.

In addition, United States citizens have a cognizable liberty interest with respect

to the ability of specific noncitizen family members to travel to the United States.
106.

The Proclamation, in depriving immigrants and refugees of the rights afforded to

them by statute, and in depriving United States citizens of travel by specific noncitizen family
members to the United States, violates the procedural due process guarantees of the Fifth
Amendment.
107.

Defendants’ violation causes ongoing harm to Plaintiffs.

SEVENTH CLAIM FOR RELIEF
(Violation of the Administrative Procedure Act)
(All Plaintiffs Against Defendants Duke, McAleenan, McCamment, Tillerson, and Sessions)
108.

Plaintiffs repeat and incorporate by reference each and every allegation contained

in the preceding paragraphs as if fully set forth herein.
109.

The Administrative Procedure Act (“APA”) requires courts to set aside agency

action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law”; “contrary to a constitutional right, power, privilege, or immunity”; or “in excess of
statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. §
706(2)(A)–(C).
110.

The APA requires courts to set aside agency action taken “without observance of

procedure required by law.” 5 U.S.C. § 706(2)(D). Specifically, the APA requires that federal
agencies conduct formal rule making before engaging in action that impacts substantive rights. 5
U.S.C. § 553, 706(2)(D).
111.

In instituting the Proclamation, including the requirement that subjects Iranian

student and exchange visitor visa applicants to unspecified “enhanced screening and vetting
requirements,” Defendants have acted contrary to the constitutional rights of Plaintiffs, and in
particular Plaintiff ISF and its members, and in excess of statutory jurisdiction, authority, or
32

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limitations, or short of a statutory right. Defendants’ actions were taken without observance of
procedure required by law. The Proclamation identifies final agency action by the Department
of Homeland Security and the Department of State, including the creation of a baseline criteria,
collection of data, evaluation and assessment of various practices, procedures, and performance
against that baseline, and identification of various countries as inadequate or at risk of being
inadequate under that baseline, followed by further information collection, assessment, and
identification of countries that continued to be inadequate under that baseline. The agencies took
these final actions without complying with the requirements of the Administrative Procedure
Act.
112.

Defendants’ violation causes ongoing harm to Plaintiffs.
EIGHTH CLAIM FOR RELIEF
(Violation of Right to Free Association under the First Amendment)
(ISFs Against All Defendants)

113.

Plaintiffs repeat and incorporate by reference each and every allegation in the

preceding paragraphs as if fully set forth herein.
114.

The First Amendment protects the right to associate, as there is a close nexus

between the freedoms of speech and association.
115.

In instituting the Proclamation, the Defendants prevent Plaintiff ISF from its right

to associate. It will be threatened with a reduction in its membership because it will be difficult
for students who are Iranian nationals to come to the University of Maryland, and associate with
ISF and its membership, hindering its mission of raising awareness about Persian culture,
history, and tradition. In so doing, Defendants violate the First Amendment.
116.

Defendants’ violation causes ongoing harm to Plaintiff ISF.
PRAYER FOR RELIEF

WHEREFORE, all Plaintiffs seek an order and judgment to:
33

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Case 8:17-cv-02921-TDC Document 37 Filed 10/12/17 Page 34 of 37

117.

Declare that the Proclamation, on its face or as applied, violates the Immigration

and Nationality Act, exceeds the Executive’s authority under the Act, and violates the
Constitution and laws of the United States;
118.

Enter a nationwide injunction enjoining Defendants from:

a. Enforcing the Proclamation;
b. Applying the Proclamation to deny, revoke, restrict, cancel, or delay issuance of
any immigrant or nonimmigrant visa;
c. Applying the Proclamation to deny or suspend entry or admission of any person;
d. Applying the Proclamation to prohibit any person from applying for or receiving
any benefit under the Immigration and Nationality Act;
e. Denying any person subject to the Proclamation access to legal counsel of his or
her choice;
f. Applying the Proclamation to instruct any airline or other common carrier to deny
passage to any person;
g. Applying the Proclamation to impose any penalty on any airline or other common
carrier for allowing passage to any person covered by the Proclamation;
119.

Order Defendants promptly to provide written guidance to employees,

contractors, and agents of DHS, the State Department, U.S. Customs and Border Protection, and
all other United States government officials and entities necessary to ensure full and timely
compliance with all terms of the order to be entered by the Court;
120.

Require Defendants promptly to rescind any guidance, directive, memorandum, or

statement interpreting or applying the Proclamation that conflicts with any term of the order to
be entered by the Court;

34

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121.

Require Defendants promptly to post a copy of the written guidance required

under paragraph 114 on government websites, including state.gov;
122.

Require Defendants promptly to update all relevant public guidance,

documentation, and FAQs to reflect the terms of the order to be entered by the Court;
123.

Require Defendants to instruct the consular officials handling the visa

applications of Plaintiffs, their families, and IAAB’s invitees and others attending IAAB
programs to print and issue the visas and travel documents within 10 days of the Court’s order;
124.

Require Defendants to instruct the relevant officials from the State Department

and Department of Homeland Security not to deny visas or entry into the United States to
Plaintiffs, their families, or IAAB’s invitees and others attending IAAB programs for any reason
directed by or arising from the Proclamation or guidance implementing it;
125.

Require Defendants to process without undue delay visa applications submitted

by nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia;
126.

Require Defendants to file with the Court, on the tenth day of each month

following the entry of the Court’s order, a signed and verified declaration stating:
a. The number of United States visas granted during the previous month to nationals
of Chad, Iran, Libya, Syria, Yemen, and Somalia;
b. The number of United States visa applications denied during the previous month
to nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia;
c. For each denied visa application under the above subparagraph (b), the identifying
information or numbers for the application for the Court’s reference;
d. For each denied visa application under the above subparagraph (b), a detailed
explanation of the reason or reasons why the application was denied. The

35

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explanation under this subsection must state the facts, authorities, and reasoning
relevant to the Defendants’ decision on the application;
127.

Require Defendants to pay reasonable attorneys’ fees and costs pursuant to 42

U.S.C. § 1988;
128.

Any other relief that the Court deems necessary or just to cure the violations

specified in this Complaint or that justice may require.
Dated: October 12, 2017

Respectfully submitted,
/s/ Mark H. Lynch

Johnathan Smith+
Sirine Shebaya (Bar # 07191)
MUSLIM ADVOCATES
P.O. Box 66408
Washington, D.C. 20035
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Mark H. Lynch (Bar # 12560)
Mark W. Mosier*
Herbert L. Fenster**
José E. Arvelo*
John W. Sorrenti*
Marianne F. Kies (Bar # 18606)
COVINGTON & BURLING LLP
One City Center
850 10th Street, NW
Washington, D.C. 20001
Richard B. Katskee (Bar # 27636)
Tel: [phone]
Eric Rothschild+
Fax: [phone]
Andrew Nellis^+
[e-mail]
AMERICANS UNITED FOR SEPARATION [e-mail]
OF CHURCH AND STATE
[e-mail]
[e-mail]
1310 L St. NW, Ste. 200
[e-mail]
Washington, D.C. 2005
Tel: [phone]
[e-mail]
Fax: [phone]
Rebecca G. Van Tassell*
[e-mail]
[e-mail]
COVINGTON & BURLING LLP
[e-mail]
1999 Avenue of the Stars
Los Angeles, California 90067
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for Plaintiffs
+ Admitted pro hac vice.
* Pro hac vice application pending.
36

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Case 8:17-cv-02921-TDC Document 37 Filed 10/12/17 Page 37 of 37

** Pro hac vice application forthcoming.
^ Admitted only in New York; supervised by Richard B. Katskee, a member of the D.C. Bar.

37

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Case 8:17-cv-02921-TDC Document 26-3 Filed 10/06/17 Page 1 of 7

Exhibit 1

JA 1149

Case 8:17-cv-02921-TDC Document 26-3 Filed 10/06/17 Page 2 of 7

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
IRANIAN ALLIANCES ACROSS BORDERS;
et al.
Plaintiffs,
v.

Case No. 17-cv-02921-TDC

DONALD J. TRUMP, in his official capacity as
President of the United States; et al.
Defendants.
DECLARATION OF MANA KHARRAZI ON BEHALF OF IRANIAN ALLIANCES
ACROSS BORDERS
Pursuant to 28 U.S.C. § 1746, I, Mana Kharrazi, hereby declare and state as follows:
1.

I am over the age of eighteen years. I have personal knowledge of the facts set

forth herein or believe them to be true based on my experience or upon personal information
provided to me by others, and I am competent to testify thereto.
2.

I am the Executive Director of Iranian Alliances Across Borders. IAAB is a

501(c)(3) nonprofit corporation organized under the laws of the state of New York. I have been
the Executive Director at IAAB since 2008. Prior to that, beginning in 2006, I served as a
program associate and program director. Before that, I participated in IAAB programs as a
student.
3.

Because of my position as Executive Director, and my prior involvement with the

organization, I know the history and background of IAAB as well as the organization’s mission,
purposes, and activities. I am also involved in the day-to-day operation of IAAB and am
therefore familiar with the organization’s current expenses, revenues, and resources. I oversee

1

JA 1150

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programs and activities sponsored or arranged by IAAB and am involved with publications that
IAAB distributes.
4.

The mission of IAAB is to strengthen the Iranian diaspora community through

leadership and educational programming that encourages collaboration and solidarity across
various borders and multiple communities. IAAB is a diverse organization, open to members of
all religious faiths.
5.

I am the only paid staff member of IAAB. Along with myself, our work is done

by approximately 50-60 unpaid volunteers each year. We host IAAB’s Campus Action Network,
a national network comprised of affiliated Iranian-American student groups and representatives,
including groups at the University of Maryland College Park, one of the biggest and most active
Iranian-American student groups in the nation, and the University of Maryland in Baltimore.
6.

We maintain a mailing list of over 2000 individuals, for distribution of our

monthly newsletter, and other communications.
7.

The travel bans issued in the past year, and the anti-Muslim rhetoric during the

campaign, resulted in our organization having to devote significant time responding to members
of our community who were subjected to hate speech and intimidation in public places, and/or
were otherwise distressed and stigmatized by these events. In response to these reports, we
launched the “Reject Hate” campaign to help our members respond to and address targeting and
harassment. We worked with parents in our community to provide toolkits for the schools their
children attend, presenting positive images of Muslims, Middle Easterners, and South Asians and
otherwise guiding parents and educators about how to deal with discriminatory and hateful
behavior.

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8.

The travel bans also affected our educational programs, and the new version of

the ban issued on September 24, 2017, excluding, without any time limitation, all Iranian
nationals from immigrating to the United States, and most Iranian nationals from traveling to the
United States, is likely to affect those programs in the future.
9.

Our programs include overnight camps for high school students (Camp Ayandeh,

begun in 2006), and middle school students (Camp Javan, begun in 2012). Although primarily
attended by Iranian Americans, we have also had campers from Iran and Europe. Since 2010,
Camp Ayandeh has hosted campers from outside the United States every year, until the Summer
of 2017—the first year that the United States ordered a ban on travel by Iranian nationals. Two
applicants to IAAB’s camps from overseas dropped out after the travel ban was ordered.
10.

The camps are run by volunteer counselors. There have been counselors from

overseas every year until the Summer of 2017. One counselor from Germany, with Iranian roots,
worked at the camp in 2016, but did not come back in 2017.
11.

At our camps, our workshops address social and cultural issues that challenge all

young people, and those that arise from their membership in the Iranian diaspora community.
These efforts are described in the recently published book “The Limits of Whiteness: Iranian
Americans and the Everyday Politics of Race” by Neda Maghbouleh.
12.

In the Summer of 2017, we spent a considerable amount of time at our camps

addressing our campers’ feelings of fear, self-hate, and lowered self-esteem arising specifically
from the statements made about Muslims and Iranians made during the election, and the
imposition of travel bans on Iranians and nationals of other predominantly Muslim countries.
13.

Our youth shared stories of feeling discriminated against and described negative

experiences in their schools. I led a session about the current climate, including the travel ban

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and the representation of our communities in the media. I supported youth who described
personal stories about being called a ‘terrorist’ and having to respond about their identities. I
supported young teenage boys with traumatic experiences of being subjected to ridicule and
harassment on sports teams, by parents of friends, classmates, and teachers. Some youth
described feeling unsafe in their communities, sometimes saying they did not want their
classmates to know that they are Iranian American. Some shared stories about being harassed for
their facial hair, being mocked for their names, not feeling a sense of self-love because their
Iranian identity subjected them to being treated differently. I also supported a young group of
volunteer counselors who shared similar experiences in college
14.

We maintain ongoing relationships with the young people who attend our camps,

and their families. Those relationships continue into college, where our camp alumni often
become leaders and participants in Iranian-American student groups. Participants in these IAAB
activities and relationships consider each other to be family.
15.

We created a national Campus Action Network of college and university Iranian-

American student groups, known as I-CAN. Through those affiliations, we share resources and
ideas, collaborate on various events and actions, provide leadership training, and collaborate on
programs. Most years we hold an IAAB Student Summit for I-CAN leaders and other interested
participants. We are in the process of scheduling that event for the 2017-18 academic year.
16.

Like our middle school and high school students, the college and university

students that we interact with have experienced sufficient distress and fear as a result of the
election rhetoric and the travel bans. Our organization is spending significant time discussing and
planning with these student groups how to respond to these disturbing developments.

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17.

IAAB periodically holds an International Conference on the Iranian Diaspora

where scholars, students, journalists, artists, community leaders and other interested people
present papers, participate in panels, and otherwise address issues affecting the Iranian Diaspora
community globally. The next conference will take place in on April 21 and 22 at New York
University. We are sending out our call for proposals in the coming week or two. If the
Proclamation goes into effect, potential participants will significantly be discouraged from
applying, and participants who do apply would not be able to obtain visas to attend.
18.

At prior conferences, about half the invited speakers come from outside the

United States, including from Iran. They often bring other members of their organizations or
faculty.
19.

At prior conferences, there is always an international presence that includes

attendees from outside the United States, including Iran.
20.

At prior conferences, we have hosted performers with Iranian national origins

from outside the country, including the Iranian rock band, Hypernova.
21.

The conference requires substantial advance planning, fundraising, and

promotion. We raise money to support travel, and pay honorarium for invited speakers. We assist
speakers and other participants with the visa process, providing them any documentation they
need to submit their application. Addressing whether the ban applies to individuals outside the
country who we wish to invite, or who wish to participate in the conference will require
organization resources, and likely require guidance that we do not have the internal capacity to
provide. We anticipate that potentially affected individuals will be discouraged from attempting
to come to the United States for the conference, in light of the challenges and uncertainty
associated.

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I declare under penalty of perjury that the foregoing is true and correct.

Executed on October 5, 2017.

______________________________
Mana Kharrazi

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
IRANIAN ALLIANCES ACROSS BORDERS;
et al.
Plaintiffs,
v.

Case No. 17-cv-02921-TDC

DONALD J. TRUMP, in his official capacity as
President of the United States; et al.

Defendants.

DECLARATION OF JANE DOE #2
Pursuant to 28 U.S.C. § 1746, I,

, known for the purpose of this case as Jane

Doe #2, hereby declare and state as follows:
1.

I am over the age of eighteen years, and I make this declaration based on my own

personal knowledge. If asked to do so, I could testify truthfully about the matters contained
herein.
2.

I am a US citizen born in the United States in 1994. I have lived in Maryland my

entire life.
3.

I went to college at the University of Maryland in College Park and graduated in

2017 with a Bachelor’s degree in International Business and Marketing and Persian Studies.
4.

I currently work as a loan processor at NVR Mortgage, and have had this job for

the last two months.
5.

About seven years ago, I first met my fiancé on a visit to Iran. We gradually

became closer to each other and started a romantic relationship about a year ago. I visited him in
Iran, and we maintained a long-distance relationship. With my current job, it is very difficult for
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me to get away to go visit him in Iran, and we eagerly await the time that we can fully be
together. It is extremely difficult and emotionally draining for us to be apart from each other. I
cannot wait until he joins me in the United States and we can get married.
6.

In February 2017, I applied for a K visa for my fiancé. The application was

received on February 14, which is Valentine’s Day. Things moved relatively quickly after that.
On August 4, 2017, he had his interview at the U.S. Embassy in Ankara. We provided dozens of
pictures, call logs, a letter detailing our relationship, and paperwork covering other aspects of our
relationship. We are now awaiting a final response on his application.
7.

I understand that if his visa is not issued by October 18, he will be banned from

traveling to the United States by the September 24, 2017 Presidential Proclamation. This will
mean that I have to choose between my home and my country here in Maryland and the love of
my life, the man I want to marry.
8.

We have both been distraught since finding out about the ban. If my fiancé’s visa

is not granted, we will be completely devastated. It will be very difficult for me to leave my job
and the only home I have known. This will tear us apart, and we are already devastated just
thinking about it.
9.

I believe this Proclamation targets me and my loved ones because of religion and

national origin, and not because of any legitimate reason. I feel dismayed and fearful that my
country if enacting official policies that discriminate against me and make me feel that I do not
belong here. Because of this Proclamation targeting me and my community, I feel insecure and I
fear for my safety and the safety of my loved ones. I feel that I am being treated as an outsider in
my own country.

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
IRANIAN ALLIANCES ACROSS BORDERS;
et al.
Plaintiffs,
v.

Case No. 17-cv-02921-TDC

DONALD J. TRUMP, in his official capacity as
President of the United States; et al.

Defendants.

DECLARATION OF JANE DOE #3
Pursuant to 28 U.S.C. § 1746, I,

, known for the purpose of this case as Jane

Doe #3, hereby declare and state as follows:
1.

I am over the age of eighteen years, and I make this declaration based on my own

personal knowledge. If asked to do so, I could testify truthfully about the matters contained
herein.
2.

I am a dual citizen of the United States and Iran.

3.

I first came to the United States as a student in 1995. I became a US citizen in

4.

I currently live in Potomac, Maryland with my husband, and we have two adult

2004.

twin boys. We first met while I was a student, and were married in August 1995.
5.

I am employed as a special education teacher for Montgomery County Public

Schools, where I have worked since 2006. I earned a Master’s degree in Education from George
Washington University in Washington, DC.

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6.

After I became a U.S. citizen in 2004, I completed and filed I-130 petitions for my

two brothers, mother, and father in October 2004. My oldest brother is now a U.S. citizen; my
mother is a U.S. citizen; and my father is a Lawful Permanent Resident.
7.

My youngest brother is the only one in our family who is still in Iran awaiting

final approval of his pending visa application. The I-130 application was approved in late 2005.
Because the waiting process for siblings is very long, my brother had been waiting his turn since
that time. In May 2017, we finally received a letter saying that my brother’s application is ready
for processing, and that an interview should be scheduled soon. A few months later, they asked
us to resubmit one of the documents in support of his application, and we did that in September
2017, at which point we were informed that his interview should be scheduled soon. After many
long years of waiting, we were finally approaching the end of the process.
8.

I am aware of the September 24, 2017 Presidential Proclamation banning most

travelers from Iran. If it goes into full effect on October 18, I understand that my brother’s
application will no longer move forward and he will not be issued an immigrant visa. He will be
prevented from entering the United States and rejoining his family.
9.

The ban on my brother has caused me a great deal of uncertainty, and I have been

confused, disheartened, and extremely disappointed about the third iteration of the ban on
Muslims and Iranians. I fear that my brother will remain separated from the rest of my family,
who all live with me in the United States. He is the only one left in Iran, and we are eagerly
awaiting the time when he can come and be reunited with us. I also fear that the Proclamation
will result in more hatred and attacks against my community, and I fear for my safety and the
safety of my loved ones.

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
IRANIAN ALLIANCES ACROSS BORDERS;
et al.
Plaintiffs,
v.

Case No. 17-cv-02921-TDC

DONALD J. TRUMP, in his official capacity as
President of the United States; et al.

Defendants.

DECLARATION OF JANE DOE #5
Pursuant to 28 U.S.C. § 1746, I,

, known for the purpose of this case as

Jane Doe #5, hereby declare and state as follows:
1.

I am over the age of eighteen years, and I make this declaration based on my own

personal knowledge. If asked to do so, I could testify truthfully about the matters contained
herein.
2.

I am a Lawful Permanent Resident. My husband and I live in the United States

with my son, who became a US citizen in 2009 and has been living in the United States since
2004.
3.

My husband and I came to the United States in 2010 to join him here. We came in

as immigrants and have lived with him in Maryland ever since.
4.

My other son currently remains in Iran. I applied to sponsor him shortly after I

came to the United States, and the I-130 petition was approved in November 2010.

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5.

In December 2016, after a long time spent waiting his turn until his visa was

ready to be processed, my son received a letter scheduling his interview with the U.S. Embassy
in Ankara, Turkey for February 5, 2017. I thought that we were finally at the end of this long
process, and would soon be reunited with my son. Before he had his interview, however,
President Trump issued the first travel ban and as a result, my son’s interview was canceled.
After the travel ban was struck down by the courts, his interview was rescheduled for March 20,
2017. He completed his interview and is now awaiting final approval. If the travel ban goes into
full effect on October 18, I understand that my son’s visa will not be issued, and my separation
from him will be prolonged even further.
6.

My son is now by himself in Iran, and he wants to come join us here in the United

States. I also very much want and need him to be here. I am 79 years old, and as a result of
several health issues, am now wheelchair-bound. My husband is 90 years old. He has problems
with balance and falls if he walks by himself. It is very difficult for my other son to take care of
us by himself, and very hard for us to get around or meet our own needs. We desperately need
my other son to be here also.
7.

Ever since I found out about the Proclamation, I have been extremely anxious,

sad, and worried. I am afraid that I will never be able to see my son. I am afraid that he will not
be able to come and be with his elderly parents. This causes me great pain and suffering on a
daily basis.
8.

I also feel personally attacked, targeted, and disparaged by this new Proclamation,

which shows hostility to Iranians generally and to Muslims in particular. It is distressing to feel
that the country I call home is targeting me and my children. It also makes me fear for my safety
and the safety of my sons and others in my community. By targeting us and treating us like a

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Exhibit A

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
IRANIAN ALLIANCES ACROSS BORDERS;
et al.
Plaintiffs,
v.

Case No. 17-cv-02921-TDC

DONALD J. TRUMP, in his official capacity as
President of the United States; et al.
Defendants.
DECLARATION OF NASEEM PASHAI ON BEHALF OF
IRANIAN STUDENTS’ FOUNDATION
Pursuant to 28 U.S.C. § 1746, I, Naseem Pashai, hereby declare and state as follows:
1.

I am over the age of eighteen years. I have personal knowledge of the facts set

forth herein or believe them to be true based on my experience or upon personal information
provided to me by others, and I am competent to testify thereto.
2.

I am the current President of the Iranian Students’ Foundation (ISF) at the

University of Maryland College Park (UMD). ISF is a student group that is formally registered
with the UMD Student Government Association (SGA), and it receives funding provided by the
state through the SGA. I was elected to be the President of ISF in May 2017 and have served as
President since.
3.

As the current President of ISF, I am familiar with the organization’s history,

background, and purpose. Because I lead a team of nine executive board positions, who are each
responsible for various projects, events, and activities, I am intimately involved in the day-to-day
operations of ISF. In addition, I am responsible for managing many aspects of the organization’s

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functions including ISF’s relationship with the campus SGA, overseeing internal matters with
other members of the Executive Board, and interfacing with our member base and the broader
community outside of UMD.
4.

Founded over thirty years ago, ISF is one of the oldest Iranian student

organizations in the country. It is comprised of over 30 active student members at any given
time, and has many more members that frequent events and meetings throughout the year. While
most of ISF’s members are first generation Iranian-Americans, some members hold student
visas, and a few others are non-Iranian. ISF has a broader network base of over 600 people who
receive weekly newsletters by email, and over 700 members in its Facebook group online.
5.

Throughout the year, ISF holds weekly general body meetings, fundraising

events, and social events for students. ISF provides students with opportunities to build
community and connect by hosting social gatherings and closely collaborating with student
groups at UMD and other universities. In addition, ISF regularly organizes conferences and
events with attendees and leaders from across the country.
6.

In addition to serving as an organization for UMD students, ISF has become a hub

for the greater Iranian community in the DC, Maryland, and Virginia area. ISF hosts cultural
celebrations for the entire Iranian community that are attended by UMD students, alumni, and
members of the community who otherwise have no connection to the University.
7.

Along with myself, ISF has nine other student executive board positions. ISF also

has a Board of Advisors that consists of ISF’s three most recent presidents.
8.

ISF’s primary purpose is to provide members and prospective members with the

opportunity to meet others with similar interests and backgrounds. A secondary goal of ISF is to
keep the rich Persian history and culture alive for both the descendants of that nation and for all

2

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interested in the culture. Furthermore, ISF strives to raise awareness about Persian culture,
dance, tradition, holidays, and history, as well as modern-day Iran and issues facing IranianAmericans.
9.

After previous versions of the travel ban were introduced, many ISF members

have lost their sense of safety and security. Many students who participate in our activities and
events are from abroad and can no longer rely on their traditional systems of love, support, and
comfort, during this time of uncertainty. While other international students can look forward to
what opportunities lie ahead, ISF members are unsure of what lies ahead. The Proclamation has
created great anxiety in these students, who are unable to plan for their future and now feel
unwelcome and discriminated against because of it.
10.

Overwhelmingly among our members, there is a feeling of being targeted and

singled out by this Presidential Proclamation, and a feeling that our families, ties to Iran, and
perceived religion are now liabilities that allow the government to discriminate against us. As an
organization that focuses on celebrating Iranian heritage and culture, ISF and its members
believe the travel ban represents an official denigration of our heritage, national origin, and
culture. ISF members have felt as though they are being separated and isolated from the broader
community, singled out and treated as though we are outsiders in our own country.
11.

If the Proclamation goes fully into effect, it would make it impossible for Iranian

family members of students to visit or attend graduation ceremonies. After sending their
children thousands of miles away for greater opportunities, many parents will never have the
chance to witness their child walk across the stage and receive a diploma. ISF is aware of two
Iranian students who are scheduled to graduate in December 2017, and their families will not be
able to obtain visas to attend their commencement celebrations once the travel ban goes into

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effect, even though their families had already applied and had already been scheduled for
interviews at the U.S. Embassy in Dubai. There are likely many more students in this situation
currently, and many more who will be when the Spring graduation dates approach.
12.

As a policy that seeks to eliminate an entire group of people from entering this

country, ISF worries that the recent Presidential Proclamation will threaten its very existence. At
a minimum, we expect that it will reduce ISF’s membership. The travel ban will make it more
difficult for future Iranian students to come to UMD in search of better opportunities, like many
generations before them. Without Iranian students and the greater Iranian-American community
to serve, ISF would have no purpose.
13.

Under this administration, Iranian and Iranian-American students feel as though

our community is under attack. ISF members have come to realize that the current
administration does not accept us for who we are—it is as if they are telling us we do not belong.
This is the first time where individuals like myself, who were born here in the United States, feel
like we are not welcome here.
14.

Anti-Iranian sentiment caused by the travel ban has caused great fear and

uncertainty for many students at UMD, which has long been a place where Iranians have come
and found a home away from home because of ISF. We believe that the issues facing our
community are negatively impacting academic performance and campus life for many ISF
members. Because the Proclamation and previous discriminatory policies like it have singled
out the Iranian culture by stigma, many ISF members feel compelled to take extra steps to
counteract what is happening on a national level. Similarly, ISF has had to devote time and
resources to responding to the increased anti-Iranian sentiment caused by the travel ban. While
this presents greater opportunities to educate others about the Iranian culture, ISF is deeply

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Exhibit B

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IRANIAN ALLIANCES ACROSS
BORDERS, et al.,
Plaintiffs,
Civil Action No.: 17-CV-2921
Judge Chuang

V.

DONALDJ. TRUMP,etal.,
Defendants.

DECLARATION OF WALLACE D. LOH,
PRESIDENT, UNIVERSITY OF MARYLAND

Pursuant to 28 U.S.C. § 1746, I, Wallace D. Loh, declare as follows:
1.

I am the President of the University of Maryland ("UMD"). The University of

Maryland was founded in 1856 and is the flagship campus of Maryland's higher educational
system. It is a top-ranked, nationally recognized public research institution. We have 38,000
students, including students from all 50 States and 118 countries. We have 9,000 faculty and
staff, including three Nobel laureates. We are a member of the Association of American
Universities. We have a $1.9 billion annual operating budget, including $500 million in external
research funding.
2.

Before assuming presidency of the University of Maryland in 2010, I served in

leadership positions at other public institutions of higher education across the country:
•

Dean, School of Law, University of Washington, 1990-95 (assistant professor,

1974-77; associate professor, 1977-80; professor, 1980-95);

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•

Vice-Chancellor for Academic Affairs, University of Colorado at Boulder, 1995-

97 (professor of law, 1995-97);
•

Dean, College of Arts & Sciences, Seattle University, 1999-2008 (professor,

public service, psychology, 1999-2008);
•

Executive Vice-President and Provost, University of Iowa, 2008-10.

I also served as Director of Policy in the Office of Governor, State of Washington, 1997-99.
3.

I received my Bachelor of Arts degree from Grinnell College, magna cum laude

1965; my Masters of Arts degree from Cornell University, 1967; my Ph.D. (psychology) from
the University of Michigan, 1971 (Ford Foundation Prize Fellowship; National Science
Foundation Fellowship; Foreign Area Program Fellowship, American Council of Learned
Societies); I received my Juris Doctorate from the Yale Law School, 1974 (Board of Editors,
Yale Law Journal).
4.

I am a Professor of Public Policy at the University of Maryland, and previously

held teaching positions as Professor of Law at Washington, Colorado-Boulder, and Iowa
Universities; and Visiting Professor of Law at Cornell, Peking University (China), Emory,
University of Texas at Austin, University of Houston, and Vanderbilt. My scholarship and
teaching are in the areas of law and social change and in criminal justice reform.
5.

I have received various honors and awards, including: Fellow, American

Academy of Arts and Sciences; board of directors, American Council of Education; advisory
board, U.S. Comptroller General; former advisory board chair, U.S. Department of Homeland
Security; "Influential Marylander" (Daily Record); "Power 100" (Washington Business Journal);
"Immigrant Achievement Award" (American Immigration Council); former President,

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Association of American Law Schools; "Trailblazer Award," National Asian-Pacific American
Bar Association; recipient of three honorary degrees.
6.

I was born in Shanghai, China in 1945. I moved as a child with my family to

Peru. After high school, I immigrated to the United States and became a naturalized citizen. I
am over eighteen years of age, am competent to testify, and have personal knowledge of the
matters in this declaration.
7.

On February 2, 2017, I was one of 48 University presidents from across the

country who wrote to President Trump, urging him to rescind Executive Order 13769 issued on
January 27, 2017, entitled "Protecting the Nation from Foreign Terrorist Entry into the United
States." We explained in our letter what we, as University presidents, have witnessed firsthand
on our campuses:
"We write as presidents ofleading American colleges and universities to urge you
to rectify or rescind the recent executive order closing our country's borders to
immigrants and others from seven majority-Muslim countries and to refugees from
throughout the world. If left in place, the order threatens both American higher education
and the defining principles of our country.
"The order specifically prevents talented, law-abiding students and scholars from
the affected regions from reaching our campuses. American higher education has
benefited tremendously from this country's long history of embracing immigrants from
around the world. Their innovations and scholarship have enhanced American learning,
added to our prosperity, and enriched our culture. Many who have returned to their own
countries have taken with them the values that are the lifeblood of our
democracy. America's educational, scientific, economic, and artistic leadership depends

3

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upon our continued ability to attract the extraordinary people who for many generations
have come to this country in search of freedom and a better life.
"This action unfairly targets seven predominantly Muslim countries in a manner
inconsistent with America's best principles and greatest traditions. We welcome
outstanding Muslim students and scholars from the United States and abroad, including
the many who come from the seven affected countries. Their vibrant contributions to our
institutions and our country exemplify the value of the religious diversity that has been a
hallmark of American freedom since this country's founding. The American dream
depends on continued fidelity to that value.
"We recognize and respect the need to protect America's security. The vetting
procedures already in place are rigorous. Improvements to them should be based on
evidence, calibrated to real risks, and consistent with constitutional principle.
"Throughout its history America has been a land of opportunity and a beacon of
freedom in the world. It has attracted talented people to our shores and inspired people
around the globe. This executive order is dimming the lamp of liberty and staining the
country's reputation. We respectfully urge you to rectify the damage done by this order.
8.

President Trump's March 6, 2017 order of the same title, Executive Order 13780,

provided for a similar devastating impact. Those orders were preliminarily enjoined by this and
other courts. Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017); Int'! Refugee Assistance Project v.
Trump, 857 F.3d 554 (4th Cir. 2017) (en bane).

9.

On September 24, 2017, the third iteration of President Trump's order was issued,

entitled the "Presidential Proclamation Enhancing Vetting Capabilities and Processes for
Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats"

4

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(the "Proclamation"). Attachment A. I have reviewed the Proclamation and write this
declaration to identify for the court the concrete and irreparable harm that will be suffered by the
students, their families, researchers, faculty members, scholars, speakers, and visitors at the
University of Maryland if that Proclamation is allowed to go into effect. The Proclamation
singles out six predominantly Muslim countries: Syria, Iran, Somalia, Chad, Libya and Yemen.
Approximately 111 of our students and 11 of our faculty and staff are nationals of these six
countries.
10.

Implementation of the Proclamation would directly impair the University of

Maryland's ability to carry out its mission of teaching, research, and support for the economic
development of Maryland as well as the United States. Implementation of the Proclamation will
interrupt and impede the academic progress and scholarly research of various students and
faculty members.
11.

The Proclamation, as well as the two Executive Orders that preceded it, has

generated anxiety among the student body at the University of Maryland, particularly among our
Muslim students. These adverse psychological effects extend even to those who are not
nationals of the countries on which the Proclamation directly imposes restrictions, including
students who are either United States citizens, Lawful Permanent Residents in the United States,
or nationals of other countries. These students have expressed intense feelings of insecurity,
depression, and alienation, and report feeling divided from their peers. These emotional and
psychological harms impact their productivity during their time at the University.
12.

The Proclamation will directly harm students of the University of Maryland, in

particular those who are nationals of Syria, Iran, and Somalia, because of the restrictions that the
Proclamation imposes on nationals of those countries as entrants to this country on

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nonimmigrant students. Our current students have great anxiety about whether they will be
barred from renewing their student visas and continuing their studies and research at the
University of Maryland.
a. For nationals of Syria, the Proclamation indefinitely suspends all non-immigrant
visas, including student and exchange visitor visas (F, M, and J). Attachment A
§ 2(e)(ii).

b. For nationals of Iran, the Proclamation imposed unspecified "enhanced screening
and vetting requirements," on holders of student and exchange visitor visas (F, M,
and J). Id. § 2(b)(ii).
c. For nationals of Somalia, all "visa adjudications" and "decisions regarding their
entry as nonimmigrants" are "subject to additional scrutiny" of an unspecified
nature. Id. § 2(h)(ii).
13.

Those students, as well as students who are nationals of Chad, Libya, and Yemen,

will be directly harmed by the Proclamation because it indefinitely bans nationals of those
countries from entering the United States on other non-immigrants visas such as B-1 tourist
visas, thereby meaning that these students will be barred from visits by various family members
throughout their college education at the University. In addition, members of our faculty or postgraduate students, researchers, and scholars, similarly are directly harmed by the indefinite ban
on visas for family members from their countries of nationality.
14.

Students and faculty members at the University who are United States citizens

and Lawful Permanent Residents who have family members who are nationals and residents of
the countries subject to the Proclamation restrictions will be similarly harmed by the inability of
those family members to obtain visas to visit them.

6

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15.

Of particularly great distress to me is the fact that the Proclamation will prevent

some of our students from having the honor and joy of the attendance of their parents and other
family members at their college graduation ceremony. A student's graduation from college is a
milestone in his or her life, a day often remembered specifically for the rest of one's life, and a
day on which students honor their parents' contributions and family support as major
contributing factors to their success. The banning of a student's family from his or her college
graduation ceremony is a type of harm that is irreparable not just because of the absence of the
family participation in one of the great milestones in that student's life, but also because of the
stigmatization and isolation of that student from the full experience of and participation in the
ceremonies as experienced by his or her classmates.
a. The University's winter graduation ceremony is scheduled for December 19,
2017. If the Proclamation is allowed to go into full effect, there is at least one
student at the University of Maryland who likely will not be able to have his
family attend his graduation as a direct result of the Proclamation. His parents are
nationals of Iran, and had applied (before issuance of the Proclamation) for tourist
visas to attend his graduation ceremony. They have an interview scheduled at the
United States embassy in Dubai to review their visa application, but according to
the terms of the Proclamation, they will be denied such visas. At least one other
student of Iranian origin is similarly situated.
b. Due to the indefinite nature of the Proclamation, such harm will befall other
students at the University at each semester's graduation ceremonies if the
Proclamation is in effect.

7

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16.

Individuals harmed by the Proclamation-students, faculty members, researchers,

and visiting scholars, and the loved ones who support them-are essential to the University's
educational and research missions, and are members of our campus family.
17.

The Proclamation threatens the University's enrollment. Approximately 25

individuals from the six Muslim-majority countries subject to the restrictions of the Proclamation
have submitted applications for admission to UMD. If the Proclamation were to go into full
effect, admitted students from Syria will not be able to receive student visas, or in the case of
nationals of Iran and Somalia, will be subject to unclear vetting and restrictions before
potentially receiving a visa. Many of those students would have pursued education in highdemand STEM disciplines (science, technology, engineering and mathematics). The University
will lose their valuable efforts and presence in our community, and the state of Maryland will
lose the long-term economic contributions of their studies and work.
18.

The Proclamation harms the University's ability to attracted talented students

from abroad, which will financially impact UMD and the state of Maryland. According to a
report analyzing the 2015-2016 academic year, international students contribute $150 million
annually to the University in payments for tuition, housing, and academic material. They
generated and maintained more than 2,200 jobs. See NAFSA, Maryland Benefits from

International Students, https://istart.iu.edu/nafsa/reports/state.cfm?state=MD&year=2015. The
Proclamation creates a perception that U.S. educational institutions do not welcome students
from predominately Muslim countries, and will deter those students from choosing to study at
UMD. The loss of these students will reduce the University's revenues.
19.

The Proclamation will directly harm visiting scholars and speakers whose

participation in scholarship and events at the University depends on processing and renewal of

8

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business, tourist, and other visas. The Proclamation bans such visas for nationals of Chad, Iran,
Libya, Syria, and Yemen, and subjects such visas for nationals of Somalia to unspecified
"additional scrutiny." The students at the University of Maryland, including United States
citizens, will be harmed by their inability to attend events at which such scholars and speakers
would otherwise participate to share their views, research, and academic analysis.
20.

Students, faculty, scholars, and speakers contribute to the University community

and its intellectual education of its student body through their academic pursuits and
achievements. Many teach and research in fields that are in-demand, and they are difficult, if not
impossible, to replace. For example, UMD conducted an extensive intefI!ational search for a
statistician with specific expertise to work on a team studying colony collapse disorder in
honeybees. That statistician had accepted an offer to relocate to UMD and participate in this
critical work. After President Trump signed Executive Order 13769 on January 27, 2017,
however, she expressed discomfort about moving to the United States and reversed her decision.
This knowledge gap has, and will continue to, slow the progress of this important research. If
the Proclamation is allowed to go into full effect, UMD expects to be further harmed in its effort
to recruit top talent from abroad, either because the needed experts will be unable to enter the
country under the terms of the Proclamation, or because they are uncomfortable with the
Proclamation's effect on others.
21.

The Proclamation also imposes direct harms on students, faculty members, and

other members of our campus family who are not nationals, and do not have family members
who are nationals, of the countries subject to the restrictions of the Proclamation, because the
Proclamation undermines the intellectual, cultural, and social diversity of the University.
Diversity, including diversity based on national origin, religion, and background, is uniquely

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valuable in an institution of higher learning. The University of Maryland benefits tremendously
by participation on campus by students, faculty, scholars, and speakers from other nations and
religious backgrounds. As the Supreme Court has held, educational benefits of diversity are a
compelling interest, particularly because diversity "promotes learning outcomes and better
prepares students for an increasingly diverse workforce and society, and better prepares them as
professionals." Grutter v. Bollinger, 539 U.S. 306, 330 (2003) (internal quotations and citation
omitted).
22.

Furthermore, students, faculty, scholars, and speakers from the specific countries

restricted by the Proclamation can provide particular wisdom and insight into our efforts to
improve the world's current problems. Their presence is essential for cross-cultural
understanding and learning. The Proclamation inhibits these opportunities for cross-cultural
understanding, which is integral to providing a high-quality University education.
23.

A substantial number of the students who attend the University of Maryland did

not grow up in diverse communities or attend diverse primary or secondary schools. Indeed,
some never met a Muslim before attending UMD. The Proclamation restricts the opportunities
for these students to broaden their understanding of other cultures, nations, and religions during
their university education. Indeed, the Proclamation sends the entirely wrong message that
Muslims are not welcome and not to be trusted in this country and thereby reinforces prejudices
and stereotypes that a university education should help to break down. In this respect, the
Proclamation directly hinders and frustrates the mission and role of the University of Maryland.
24.

It is in the interest of the University, as well as in the national interest, to welcome

talented persons of all nations to study, teach, and do research in the United States, in order to
maintain and improve America's position as a leader in higher education and research. To reach

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those goals, we must remain true to our bedrock values of diversity, inclusion, tolerance, and
intellectual :freedom. The Proclamation imposes urgent and concrete harms to the University's
community, mission, and values.

I declare under penalty of perjury that the foregoing is true and correct. Executed on October 10,
2017.

Wallace D. Loh
President, University of Maryland

11

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Exhibit C

JA 1195

Case 8:17-cv-02921-TDC Document 38-5 Filed 10/13/17 Page 2 of 3

Lynch, Mark
From:

Sent:
To:
Cc:
Subject:

Schwei, Daniel 5. (CIV) <[e-mail]>
Thursday, October 12, 2017 12:34 PM
Lynch, Mark
[e-mail]; [e-mail]; [e-mail]; [e-mail]; Kies,
Marianne; Mosier, Mark
RE: 17-2921 IAAB v. Trump Hearing Time

Mark,
The Government opposes your filing of the declaration, for the reasons stated in my prior e-mail. Judge
Chuang~ s order directed plaintiffs to file their opening motion by October 6~ and you have provided no reason
why the declaration could not have been filed by the deadline.
Also, while Plaintiffs do not require consent or leave of court to amend the complaint at this time, that amended
complaint does not change the character of the PI proceedings in any way. Allowing plaintiffs to add additional
claims or parties at this stage would be unfair and prejudicial to the Government, and again would be
inconsistent with Judge Chuang's scheduling order.
Best,
Daniel
From: Lynch, Mark [mailto:[e-mail]]

Sent: Thursday, October 12, 2017 9:51 AM
To: Schwei, Daniel S. {CIV) <[e-mail]>
Cc: [e-mail]; [e-mail]; [e-mail]; [e-mail]; Kies, Marianne
<[e-mail]>; Mosier, Mark <[e-mail]>
Subject: RE: 17-2921 IAAB v. Trump Hearing Time
Daniel --We plan to file later today an amended IAAB complaint to add claims under the APA and to add the Iranian
Students' Foundation (ISF} as a plaintiff. (As you know, amendment at this time does not require consent of the
defendants or leave of the court.) ISF will also file a declaration addressing the issues of standing and injury, similar to
the declarations of the other plaintiffs. Will you consent to the filing of that declaration?
Thanks for your attention to this matter.
Mark

From: Schwei, Daniel S. (CIV) [mailto:[e-mail]]
Sent: Tuesday, October 10, 2017 8:11 PM
To: Lynch, Mark <[e-mail]>
Cc: [e-mail]; [e-mail]; [e-mail]; [e-mail]; Kies, Marianne
<[e-mail]>; Mosier, Mark <[e-mail]>
Subject: RE: 17-2921 IAAB v. Trump Hearing Time

Mark,
The Government opposes your filing of this declaration. You have not provided any reason why the declaration
could not have been filed by the deadline for your opening motion, and in any event this declaration-from a
non-party entity-is not necessary to the Court's resolution of your motion.
1

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Case 8:17-cv-02921-TDC Document 38-5 Filed 10/13/17 Page 3 of 3
Best,
Daniel
From: Lynch, Mark [mailto:[e-mail]]
Sent: Tuesday, October 10, 2017 6:28 PM
To: Schwei, Daniel S. (CIV) <[e-mail]>
Cc: [e-mail]; [e-mail]; [e-mail]; [e-mail]; Kies, Marianne
<[e-mail]>; Mosier, Mark <[e-mail]>
Subject: RE: 17-2921 IAAB v. Trump Hearing Time
Dear Daniel:
We plan to file tomorrow a motion for leave to file the attached declaration from the President of the University of
Maryland, which we just obtained today, and we wanted to provide it to you as soon as possible. We also ask ifwe can
represent in our motion that defendants consent to the filing of this declaration.
Thank you for your attention to this matter.
Sincerely,
Mark Lynch

2

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Case 8:17-cv-02921-TDC Document 50 Filed 10/20/17 Page 1 of 3

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
____________________________________
)
IRANIAN ALLIANCES ACROSS
)
BORDERS, et al.,
)
)
Plaintiffs,
)
)
v.
)
No. 8:17-cv-02921-TDC
)
DONALD TRUMP, in his official capacity )
as President of the United States, et al.,
)
)
Defendants.
)
____________________________________)
NOTICE OF APPEAL
PLEASE TAKE NOTICE that all defendants hereby appeal to the United States Court of
Appeals for the Fourth Circuit from the Memorandum Opinion and Order at ECF Nos. 46 and 47,
both dated October 17, 2017.

Dated: October 20, 2017

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
STEPHEN M. SCHENNING
Acting United States Attorney
JENNIFER D. RICKETTS
Director, Federal Programs Branch
JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Daniel Schwei
DANIEL SCHWEI (Bar No. 96100)
MICHELLE R. BENNETT (Bar No. 806456)

1

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ARJUN GARG (Bar No. 806537)
Senior Trial Counsel / Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on October 20, 2017, I electronically filed the foregoing Notice of
Appeal using the Court’s CM/ECF system, causing a notice of filing to be served upon all counsel
of record.

/s/ Daniel Schwei
DANIEL SCHWEI

JA 1200

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Page 1 of 13

APPEAL

U.S. District Court
District of Maryland (Baltimore)
CIVIL DOCKET FOR CASE #: 1:17-cv-02969-TDC
Zakzok et al v. Trump et al
Assigned to: Judge Theodore D. Chuang
Case in other court: USCA, 17-02233
Cause: 28:2201 Declaration Judgement (aliens and
nationality)

Date Filed: 10/06/2017
Jury Demand: None
Nature of Suit: 440 Civil Rights: Other
Jurisdiction: U.S. Government
Defendant

Plaintiff
Eblal Zakzok

represented by Andrew J. Ehrlich
Paul, Weiss, Rifkind, Wharton &
Garrison, LLP
1285 Avenue of the Americas
New York, NY 10019
212-373-3000
Fax: [phone]
Email: [e-mail]
ATTORNEY TO BE NOTICED
Faiza Patel
Brennan Center for Justice at NYU
School of Law
120 Broadway
Suite 1750
New York, NY 10271
646-292-8325
Fax: [phone]
Email: [e-mail]
PRO HAC VICE
ATTORNEY TO BE NOTICED
Gadeir I. Abbas
CAIR
453 New Jersey Ave., SE
Washington, DC 20003
2027426420
Fax: [phone]
Email: [e-mail]
PRO HAC VICE
ATTORNEY TO BE NOTICED
Jethro Mark Eisenstein
Profeta & Eisenstein

JA 1201
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District of Maryland (CM/ECF Live 6.1)

Page 2 of 13

45 Broadway
Suite 2200
New York, NY 10006
212-577-6500
Fax: [phone]
Email: [e-mail]
ATTORNEY TO BE NOTICED
Lena F. Masri
CAIR
453 New Jersey Ave., SE
Washington, DC 20003
202-742-6420
Fax: [phone]
Email: [e-mail]
PRO HAC VICE
ATTORNEY TO BE NOTICED
Liza Velazquez
Paul Weiss Rifkind Wharton and
Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
12123733000
Fax: [phone]
Email: [e-mail]
PRO HAC VICE
ATTORNEY TO BE NOTICED
Michael William Price
Brennan Center for Justice at NYU
School of Law
120 Broadway
Suite 1750
New York, NY 10271
646-292-8335
Fax: [phone]
Email: [e-mail]
ATTORNEY TO BE NOTICED
Robert A Atkins
Paul Weiss Rifkind Wharton and
Garrison LLP
1285 Avenue of the Americas
New York, NY 10011
2123733183
Fax: [phone]
Email: [e-mail]
PRO HAC VICE

JA 1202
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Page 3 of 13

ATTORNEY TO BE NOTICED
Steven C. Herzog
Paul, Weiss, Rifkind, Wharton &
Garrison, LLP
1285 Avenue of the Americas
New York, NY 10019
212-373-3000
Fax: [phone]
Email: [e-mail]
ATTORNEY TO BE NOTICED
Charles E Davidow
Paul Weiss Rifkind Wharton and
Garrison LLP
2001 K St., NW
Suite 500
Washington, DC 20006-1047
12022237380
Fax: [phone]
Email: [e-mail]
ATTORNEY TO BE NOTICED
Plaintiff
Sumaya Hamadmad

represented by Andrew J. Ehrlich
(See above for address)
ATTORNEY TO BE NOTICED
Faiza Patel
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Gadeir I. Abbas
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Jethro Mark Eisenstein
(See above for address)
ATTORNEY TO BE NOTICED
Lena F. Masri
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Liza Velazquez
(See above for address)

JA 1203
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PRO HAC VICE
ATTORNEY TO BE NOTICED
Michael William Price
(See above for address)
ATTORNEY TO BE NOTICED
Robert A Atkins
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Charles E Davidow
(See above for address)
ATTORNEY TO BE NOTICED
Plaintiff
Fahed Muqbil

represented by Andrew J. Ehrlich
(See above for address)
ATTORNEY TO BE NOTICED
Faiza Patel
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Gadeir I. Abbas
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Jethro Mark Eisenstein
(See above for address)
ATTORNEY TO BE NOTICED
Lena F. Masri
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Liza Velazquez
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Michael William Price
(See above for address)
ATTORNEY TO BE NOTICED

JA 1204
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Robert A Atkins
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Charles E Davidow
(See above for address)
ATTORNEY TO BE NOTICED
Plaintiff
John Doe #1

represented by Andrew J. Ehrlich
(See above for address)
ATTORNEY TO BE NOTICED
Faiza Patel
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Gadeir I. Abbas
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Jethro Mark Eisenstein
(See above for address)
ATTORNEY TO BE NOTICED
Lena F. Masri
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Liza Velazquez
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Michael William Price
(See above for address)
ATTORNEY TO BE NOTICED
Robert A Atkins
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Charles E Davidow

JA 1205
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Page 6 of 13

(See above for address)
ATTORNEY TO BE NOTICED
Plaintiff
Jane Doe #2

represented by Andrew J. Ehrlich
(See above for address)
ATTORNEY TO BE NOTICED
Faiza Patel
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Gadeir I. Abbas
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Jethro Mark Eisenstein
(See above for address)
ATTORNEY TO BE NOTICED
Lena F. Masri
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Liza Velazquez
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Michael William Price
(See above for address)
ATTORNEY TO BE NOTICED
Robert A Atkins
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Charles E Davidow
(See above for address)
ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe #3

represented by Andrew J. Ehrlich
(See above for address)
ATTORNEY TO BE NOTICED

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Faiza Patel
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Gadeir I. Abbas
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Jethro Mark Eisenstein
(See above for address)
ATTORNEY TO BE NOTICED
Lena F. Masri
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Liza Velazquez
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Michael William Price
(See above for address)
ATTORNEY TO BE NOTICED
Robert A Atkins
(See above for address)
PRO HAC VICE
ATTORNEY TO BE NOTICED
Charles E Davidow
(See above for address)
ATTORNEY TO BE NOTICED
V.
Defendant
Donald Trump
in his official capacity as President of
the United States

represented by Daniel Stephen Garrett Schwei
United States Department of Justice
20 Massachusetts Ave NW Room 6145
Washington, DC 20001
2023058693
Fax: [phone]
Email: [e-mail]

JA 1207
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Page 8 of 13

LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
U.S. Department of Homeland
Security

represented by Daniel Stephen Garrett Schwei
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Defendant
U.S. Department of State

represented by Daniel Stephen Garrett Schwei
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Defendant
Elaine Duke
In her official capacity as Acting
Secretary of Homeland Security

represented by Daniel Stephen Garrett Schwei
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Steven C. Herzog
(See above for address)
ATTORNEY TO BE NOTICED

Defendant
Rex W. Tillerson
In his official capacity as Secretary of
State

represented by Daniel Stephen Garrett Schwei
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

10/06/2017

1 COMPLAINT against Elaine Duke, Rex W. Tillerson, Donald Trump, U.S.
Department of Homeland Security, U.S. Department of State ( Filing fee $ 400
receipt number 0416-6932959.), filed by Jane Doe #3, Fahed Muqbil, Sumaya
Hamadmad, John Doe #1, Eblal Zakzok, Jane Doe #2. (Attachments: # 1
Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Civil
Cover Sheet)(Davidow, Charles) (Entered: 10/06/2017)

10/06/2017

2 MOTION for Preliminary Injunction by John Doe #1, Jane Doe #2, Jane Doe
#3, Sumaya Hamadmad, Fahed Muqbil, Eblal Zakzok (Attachments: # 1 Text of
Proposed Order)(Davidow, Charles) (Entered: 10/06/2017)

10/06/2017

3 NOTICE by John Doe #1, Jane Doe #2, Jane Doe #3, Sumaya Hamadmad,
Fahed Muqbil, Eblal Zakzok Letter re: Motion for Preliminary Injunction /
Request to File Memorandum (Davidow, Charles) (Entered: 10/06/2017)

10/10/2017

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Case Reassigned to Judge Theodore D. Chuang. Judge George Levi Russell, III
no longer assigned to the case. (aos, Deputy Clerk) (Entered: 10/10/2017)
10/10/2017

4 ORDER granting Plaintiff's leave to file the Motion for Preliminary Injunction;
directing that a Supplement is due October 10, 2017 at 12:00 noon; directing
that the Zakzok Plaintiff's will be permitted to file a Reply by October 14, 2017
at 12:00 noon. Signed by Judge Theodore D. Chuang on 10/10/2017. (aos,
Deputy Clerk) Modified on 10/10/2017 (aos, Deputy Clerk). (Entered:
10/10/2017)

10/10/2017

5 QC NOTICE: 1 Complaint, filed by Sumaya Hamadmad, Jane Doe #2, Eblal
Zakzok, John Doe #1, Fahed Muqbil, Jane Doe #3 was filed
incorrectly.***Please file a proposed summons for the U.S. Attorney for the
District of Maryland and The Attorney General of the United States. (kw2s,
Deputy Clerk) (Entered: 10/10/2017)

10/10/2017

6 Memorandum in support of 2 MOTION for Preliminary Injunction filed by John
Doe #1, Jane Doe #2, Jane Doe #3, Sumaya Hamadmad, Fahed Muqbil, Eblal
Zakzok. (Attachments: # 1 Declaration of Fahed Muqbil, # 2 Declaration of
Eblal Zakzok, # 3 Declaration of Sumaya Hamadmad, # 4 Declaration of John
Doe #1, # 5 Declaration of Jane Doe #2, # 6 Declaration of Jane Doe #3)
(Davidow, Charles) Modified on 10/11/2017 (tds, Deputy Clerk). (Entered:
10/10/2017)

10/10/2017

7 NOTICE by John Doe #1, Jane Doe #2, Jane Doe #3, Sumaya Hamadmad,
Fahed Muqbil, Eblal Zakzok re 5 QC Notice - Miscellaneous, 1 Complaint,
Request of Issuance of Summonses for Acting U.S. Attorney Stephen Schenning
and Attorney General Jefferson Beauregard Sessions III (Attachments: # 1
Summons)(Davidow, Charles) (Entered: 10/10/2017)

10/10/2017

8 MOTION for Permission for Certain Plaintiffs to Proceed under Pseudonyms
and to Omit Individual Plaintiffs' Home Addresses from Caption by John Doe
#1, Jane Doe #2, Jane Doe #3, Sumaya Hamadmad, Fahed Muqbil, Eblal
Zakzok (Attachments: # 1 Memorandum, # 2 Text of Proposed Order)(Davidow,
Charles) (Entered: 10/10/2017)

10/10/2017

9 NOTICE rescheduling the Hearing on the Motions for Preliminary Injunction
for October 16, 2017 at 2:00 p.m. at the United States Courthouse at 6500
Cherrywood Lane in Greenbelt, Maryland. (signed by Judge Theodore D.
Chuang 10/10/2017). (tds, Deputy Clerk) (Entered: 10/10/2017)

10/10/2017

10 MOTION to Appear Pro Hac Vice for Robert A. Atkins (Filing fee $100, receipt
number 0416-6935673.) by John Doe #1, Jane Doe #2, Jane Doe #3, Sumaya
Hamadmad, Fahed Muqbil, Eblal Zakzok(Davidow, Charles) (Entered:
10/10/2017)

10/10/2017

11 MOTION to Appear Pro Hac Vice for Andrew J. Ehrlich (Filing fee $100,
receipt number 0416-6935675.) by John Doe #1, Jane Doe #2, Jane Doe #3,
Sumaya Hamadmad, Fahed Muqbil, Eblal Zakzok(Davidow, Charles) (Entered:
10/10/2017)

10/10/2017

12 MOTION to Appear Pro Hac Vice for Liza Velazquez (Filing fee $100, receipt
number 0416-6935677.) by John Doe #1, Jane Doe #2, Jane Doe #3, Sumaya

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Hamadmad, Fahed Muqbil, Eblal Zakzok(Davidow, Charles) (Entered:
10/10/2017)
10/10/2017

13 MOTION to Appear Pro Hac Vice for Steven C. Herzog (Filing fee $100,
receipt number 0416-6935678.) by John Doe #1, Jane Doe #2, Jane Doe #3,
Sumaya Hamadmad, Fahed Muqbil, Eblal Zakzok(Davidow, Charles) (Entered:
10/10/2017)

10/11/2017

14 MOTION to Appear Pro Hac Vice for Faiza Patel (Filing fee $100, receipt
number 0416-6936961.) by John Doe #1, Jane Doe #2, Jane Doe #3, Sumaya
Hamadmad, Fahed Muqbil, Eblal Zakzok(Davidow, Charles) (Entered:
10/11/2017)

10/11/2017

15 MOTION to Appear Pro Hac Vice for Jethro Mark Eisenstein (Filing fee $100,
receipt number 0416-6936974.) by John Doe #1, Jane Doe #2, Jane Doe #3,
Sumaya Hamadmad, Fahed Muqbil, Eblal Zakzok(Davidow, Charles) (Entered:
10/11/2017)

10/11/2017

16 MOTION to Appear Pro Hac Vice for Lena F. Masri (Filing fee $100, receipt
number 0416-6936982.) by John Doe #1, Jane Doe #2, Jane Doe #3, Sumaya
Hamadmad, Fahed Muqbil, Eblal Zakzok(Davidow, Charles) (Entered:
10/11/2017)

10/11/2017

17 MOTION to Appear Pro Hac Vice for Michael William Price (Filing fee $100,
receipt number 0416-6936992.) by John Doe #1, Jane Doe #2, Jane Doe #3,
Sumaya Hamadmad, Fahed Muqbil, Eblal Zakzok(Davidow, Charles) (Entered:
10/11/2017)

10/11/2017

18 Summons Issued 60 days as to Elaine Duke, Rex W. Tillerson, Donald Trump,
U.S. Department of Homeland Security, U.S. Department of State, U.S.
Attorney and U.S. Attorney General. (tds, Deputy Clerk) (Entered: 10/11/2017)

10/12/2017

19 NOTICE of Appearance by Daniel Stephen Garrett Schwei on behalf of All
Defendants (Schwei, Daniel) (Entered: 10/12/2017)

10/12/2017

20 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction filed by
Elaine Duke, Rex W. Tillerson, Donald Trump, U.S. Department of Homeland
Security, U.S. Department of State.(Schwei, Daniel) (Entered: 10/12/2017)

10/13/2017

21 MOTION to Appear Pro Hac Vice for Gadeir I. Abbas (Filing fee $100, receipt
number 0416-6941425.) by John Doe #1, Jane Doe #2, Jane Doe #3, Sumaya
Hamadmad, Fahed Muqbil, Eblal Zakzok(Davidow, Charles) (Entered:
10/13/2017)

10/13/2017

22 PAPERLESS ORDER granting 10 Motion to Appear Pro Hac Vice on behalf of
Robert A Atkins. Directing attorney Robert A Atkins to register online for
CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration.
Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered: 10/13/2017)

10/13/2017

23 [FILED IN ERROR] PAPERLESS ORDER granting 11 Directing attorney to
register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-casefiling-registration. Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk)
Modified on 10/13/2017 (kns, Deputy Clerk). (Entered: 10/13/2017)

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10/13/2017

24 PAPERLESS ORDER granting 12 Motion to Appear Pro Hac Vice on behalf of
Liza Velazquez. Directing attorney Liza Velazquez to register online for
CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration.
Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered: 10/13/2017)

10/13/2017

25 PAPERLESS ORDER granting 13 Motion to Appear Pro Hac Vice on behalf of
Steven C. Herzog. Directing attorney Steven C. Herzog to register online for
CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration.
Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered: 10/13/2017)

10/13/2017

26 PAPERLESS ORDER granting 14 Motion to Appear Pro Hac Vice on behalf of
Faiza Patel. Directing attorney Faiza Patel to register online for CM/ECF at
http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by
Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered: 10/13/2017)

10/13/2017

27 PAPERLESS ORDER granting 15 Motion to Appear Pro Hac Vice on behalf of
Jethro Mark Eisenstein. Directing attorney Jethro Mark Eisenstein to register
online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered:
10/13/2017)

10/13/2017

28 PAPERLESS ORDER granting 16 Motion to Appear Pro Hac Vice on behalf of
Lena F. Masri. Directing attorney Lena F. Masri to register online for CM/ECF
at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by
Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered: 10/13/2017)

10/13/2017

29 PAPERLESS ORDER granting 11 Motion to Appear Pro Hac Vice on behalf of
Andrew J. Ehrlich. Directing attorney Andrew J. Ehrlich to register online for
CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration.
Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered: 10/13/2017)

10/13/2017

30 [FILED IN ERROR] SUMMONS Returned Executed by Jane Doe #3, Fahed
Muqbil, Sumaya Hamadmad, John Doe #1, Eblal Zakzok, Jane Doe #2. Elaine
Duke served on 10/12/2017, answer due 12/11/2017; Rex W. Tillerson served
on 10/12/2017, answer due 12/11/2017; Donald Trump served on 10/12/2017,
answer due 12/11/2017; U.S. Department of Homeland Security served on
10/12/2017, answer due 12/11/2017; U.S. Department of State served on
10/12/2017, answer due 12/11/2017.(Davidow, Charles) Modified on
10/17/2017 (tds, Deputy Clerk). (Entered: 10/13/2017)

10/13/2017

31 PAPERLESS ORDER granting 17 Motion to Appear Pro Hac Vice on behalf of
Michael William Price. Directing attorney Michael William Price to register
online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filingregistration. Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered:
10/13/2017)

10/13/2017

32 PAPERLESS ORDER granting 21 Motion to Appear Pro Hac Vice on behalf of
Gadeir I. Abbas. Directing attorney Gadeir I. Abbas to register online for
CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration.
Signed by Clerk on 10/13/2017. (cs3, Deputy Clerk) (Entered: 10/13/2017)

10/14/2017

33 REPLY to Response to Motion re 2 MOTION for Preliminary Injunction filed
by John Doe #1, Jane Doe #2, Jane Doe #3, Sumaya Hamadmad, Fahed Muqbil,

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Eblal Zakzok. (Attachments: # 1 Declaration of Steven C. Herzog, # 2 Exhibit 1,
# 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8
Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13
Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14)(Davidow, Charles) (Entered:
10/14/2017)
10/16/2017

34 Preliminary Injunction Hearing held on 10/16/2017 before Judge Theodore D.
Chuang.(Court Reporter: Lisa Bankins - 4C) (klss, Deputy Clerk) (Entered:
10/16/2017)

10/17/2017

35 QC NOTICE: 30 Summons Returned Executed as to USA, filed by Sumaya
Hamadmad, Jane Doe #2, Eblal Zakzok, John Doe #1, Fahed Muqbil, Jane Doe
#3 was filed incorrectly. ***Please re-file the documents that pertain only to
Summonses that were returned executed. Documents titled "Affidavits of Service
by Certified Mail" were filed but they do not constitute actual service of the
Summonses. ECF No. 30 has been noted as FILED IN ERROR, and the
document link has been disabled. (tds, Deputy Clerk) (Entered: 10/17/2017)

10/17/2017

36 MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on
10/17/2017. (kns, Deputy Clerk) (Entered: 10/18/2017)

10/17/2017

37 ORDER granting in part and denying in part 2 Motion for Preliminary
Injunction. Signed by Judge Theodore D. Chuang on 10/17/2017. (kns, Deputy
Clerk) (Entered: 10/18/2017)

10/19/2017

38 SUMMONS Returned Executed by Jane Doe #3, Fahed Muqbil, Sumaya
Hamadmad, John Doe #1, Eblal Zakzok, Jane Doe #2. (Davidow, Charles)
(Entered: 10/19/2017)

10/19/2017

39 AFFIDAVIT of Service by Certified Mail for Summons, Complaint for
Declaratory and Injunctive Relief, Civil Cover Sheet, Letter dated October 6,
2017 Addressed to Judge Theodore D. Chuang, Plaintiffs' Motion for a
Preliminary Injunction, Text of the Proposed Order Granting the Motion,
Memorandum of Law in Support of Plaintiffs' Motion for a Preliminary
Injunction, Declaration of Fahed Muqbil, Declaration of Eblal Zakzok,
Declaration of Sumaya Hamadmad, Declaration of John Doe #1, Declaration of
Jane Doe #2, Declaration of Jane Doe #3, Plaintiffs' Motion for Permission for
Certain Plaintiffs to Proceed Under Pseudonyms and to Omit Individual
Plaintiffs' Home Address from Caption, Plaintiffs' Memorandum of Law in
Support of their Motion for Permission for Certain Plaintiffs to Proceed Under
Pseudonyms and to Omit Individual Plaintiffs' Home Addresses from Caption,
Text of Proposed Order Granting the Motion served on Donald J. Trump,
Jefferson Beauregard Sessions III, U.S. Department of Homeland Security, U.S.
Department of State, The Honorable Elaine C. Duke, The Honorable Secretary
of State Rex W. Tillerson on October 11, 2017, filed by John Doe #1, Jane Doe
#2, Jane Doe #3, Sumaya Hamadmad, Fahed Muqbil, Eblal Zakzok.(Davidow,
Charles) Modified on 10/23/2017 (kw2s, Deputy Clerk). Modified on
10/23/2017 (tds, Deputy Clerk). (Entered: 10/19/2017)

10/20/2017

40 NOTICE OF APPEAL as to 36 Memorandum Opinion, 37 Order on Motion for
Preliminary Injunction by Elaine Duke, Rex W. Tillerson, Donald Trump, U.S.

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Department of Homeland Security, U.S. Department of State. (Schwei, Daniel)
(Entered: 10/20/2017)
10/20/2017

41 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re
40 Notice of Appeal. IMPORTANT NOTICE: To access forms which you are
required to file with the United States Court of Appeals for the Fourth Circuit
please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(kns,
Deputy Clerk) (Entered: 10/20/2017)

10/20/2017

42 USCA Case Number 17-2233 for 40 Notice of Appeal filed by Rex W.
Tillerson, U.S. Department of State, U.S. Department of Homeland Security,
Donald Trump, Elaine Duke. Case Manager - RJ Warren.(kns, Deputy Clerk)
(Entered: 10/20/2017)

10/20/2017

43 ORDER of USCA consolidating Case No. 17-2231(L) with Case No. 17-2232
and Case No. 17-2233 as to 40 Notice of Appeal filed by Rex W. Tillerson, U.S.
Department of State, U.S. Department of Homeland Security, Donald Trump,
Elaine Duke. (kns, Deputy Clerk) (Entered: 10/20/2017)

10/23/2017

44 [FILED IN ERROR] QC NOTICE: 39 Affidavit of Service, filed by Sumaya
Hamadmad, Jane Doe #2, Eblal Zakzok, John Doe #1, Fahed Muqbil, Jane Doe
#3 was filed incorrectly. ***Please re-file documents by selecting Serviceof
Process> Summons Returned Executed. It has been noted as FILED IN ERROR,
and the document link has been disabled. (kw2s, Deputy Clerk) Modified on
10/23/2017 (tds, Deputy Clerk). (Entered: 10/23/2017)

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Case 1:17-cv-02969-TDC Document 1 Filed 10/06/17 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
EBLAL ZAKZOK,
SUMAYA HAMADMAD,
FAHED MUQBIL,
JOHN DOE #1, and
JANE DOES #2-3
Plaintiffs,

Civil Action No.:

v.
DONALD TRUMP, in his official capacity
as President of the United States,
1600 Pennsylvania Avenue NW
Washington, D.C. 20035

COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF

U.S. DEPARTMENT OF HOMELAND
SECURITY,
Serve on: Elaine Duke
Acting Secretary of Homeland Security
Washington, D.C. 20528;
U.S. DEPARTMENT OF STATE,
Serve on: Rex W. Tillerson,
Secretary of State
2201 C Street NW
Washington, D.C. 20520;
ELAINE DUKE
In her official capacity as Acting Secretary
of Homeland Security
Washington, D.C. 20528;
REX W. TILLERSON
In his official capacity as Secretary of State
2201 C Street NW
Washington, D.C. 20520
Defendants.

1

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Case 1:17-cv-02969-TDC Document 1 Filed 10/06/17 Page 2 of 30

INTRODUCTION
1. This case is a challenge to President Donald Trump’s third attempt at banning Muslims
from the United States. On September 24, 2017, President Trump issued a proclamation
titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into
the United States by Terrorists or Other Public-Safety Threats.” Proclamation No. 9645,
82 Fed Reg. 45,161 (Sept. 24, 2017) (“Proclamation”). The Proclamation, inter alia,
indefinitely banned virtually all travel to the United States from six Muslim-majority
countries. Plaintiffs are citizens or permanent residents of the United States who will not
be able to reunite with their family members or will otherwise be injured as a direct result
of the Proclamation.
2. The President previously attempted to halt the entry of Muslims to the United States on
two occasions. One week after taking office, fulfilling a campaign pledge to effectuate a
“total and complete shutdown of Muslims entering the United States,”1 President Trump
issued an executive order titled “Protecting the Nation from Foreign Terrorist Entry into
the United States.” Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017) (“EO-1”).
The order suspended travel from seven majority-Muslim countries for 90 days and
banned all refugees from those countries. EO-1 contained an exception for “minority
faiths,” making explicit its discriminatory intent, and the order was quickly enjoined by
federal courts. See Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017); Int'l Refugee
Assistance Project v. Trump, 857 F.3d 554 (4th Cir.), cert. granted, 137 S. Ct. 2080
(2017) (per curiam).
1

Jenna Johnson, Trump Calls for ‘Total and Complete Shutdown of Muslims Entering the United
States,’ N.Y. Times, Dec. 7, 2015, https://www.washingtonpost.com/news/postpolitics/wp/2015/12/07/donald-trump-calls-for-total-and-complete-shutdown-of-muslimsentering-the-united-states/.
2

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3. On March 27, 2017, the President issued what he described as a “watered down” version
of EO-1,2 also called “Protecting the Nation From Foreign Terrorist Entry Into the United
States.” Exec. Order No. 13780, 82 Fed. Reg. 13,209 (Mar. 6, 2017) (“EO-2”). It too was
enjoined by several federal courts as unconstitutional and in violation of the Immigration
and Nationality Act (“INA”), §§ 202(a)(1)(A), 207, 212(f), Pub. L. No. 89-236, 66 Stat.
187 (codified as amended at 8 U.S.C. §§ 1152(a)(1)(A), 1182(f)). Hawaii v. Trump, 859
F.3d 741 (9th Cir.) (per curiam), cert. granted sub nom. Trump v. Int’l Refugee
Assistance Project, 137 S. Ct. 2080 (2017). On June 26, 2017, the Supreme Court
consolidated the Hawaii and Maryland cases, granted certiorari, and narrowed the
preliminary injunctions entered by the lower courts. Trump v. Int’l Refugee Assistance
Project, 137 S. Ct. 2080, 2086-87 (2017) (per curiam).
4. Like the previous two iterations, President Trump’s September 2017 attempt at instituting
a Muslim ban invokes national security concerns. In defending EO-2, the government
argued that a suspension on travel was necessary to protect the country from the threat of
terrorist attacks from nationals of the targeted countries. The Ninth Circuit rejected that
argument, noting that there had been “no finding that present vetting standards are
inadequate, and no finding that absent the improved vetting procedures there likely will
be harm to our national interests.” Hawaii, 859 F.3d at 771.
5.

The government now offers a new – and equally unsupported – rationale. According to
the Proclamation, between July 9, 2017 and September 15, 2017, the Departments of
State and Homeland Security carried out a “worldwide review” of visa procedures in

2

Jacob Pramuk, Trump May Have Just Dealt a Blow to His Own Executive Order, CNBC, Mar.
15, 2017, http://www.cnbc.com/2017/03/15/trump-may-have-just-dealt-a-blow-to-his-ownexecutive-order.html.
3

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Case 1:17-cv-02969-TDC Document 1 Filed 10/06/17 Page 4 of 30

order to determine which countries were “inadequate” based on an analysis of their
“identity-management protocols, information-sharing practices, and risk factors.”
Proclamation at §1(e). This contrived process identified 47 countries as “inadequate” or
“at risk” of becoming “inadequate.” Id. In the end, however, the administration acted on
the same religious animus that animated the first two unlawful orders and imposed
indefinite wholesale ban on citizens of five of the same countries that were the subject of
EO-1 and EO-2: Iran, Libya, Somalia, Syria, and Yemen. Another Muslim majority
country, Chad, was also added to the list. Finally, North Korean nationals, as well as
certain Venezuelan government officials and their families, were also banned.
6.

Throughout, President Trump’s objective has remained constant: to keep Muslims out of
the United States. The visa “review” is a pretext. Adding North Koreans and small
group of Venezuelan government officials to the mix does not change this, but rather is a
transparent attempt to add a fig leaf of religious neutrality to the order. The primary effect
of the Proclamation is to exclude the nationals of several Muslim countries without
adequate justification as to why or how this would protect the homeland.

7. The Proclamation imposes concrete harms on American Muslim citizens and permanent
residents whose family members are barred from traveling to the United States. Like its
predecessors, EO-1 and EO-2, the Proclamation violates the fundamental constitutional
guarantee that the government may not establish or favor one religion over another. Like
the President’s earlier orders, it also violates the prohibition against discrimination on the
basis of race, nationality or country of origin contained in the Immigration and
Nationality Act, and exceeds the President’s authority under that law to identify classes
of aliens who are not eligible for entry to the United States.

4

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Case 1:17-cv-02969-TDC Document 1 Filed 10/06/17 Page 5 of 30

JURISDICTION AND VENUE
8. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 because this action
arises under the U.S. Constitution, the Administrative Procedure Act (“APA”) § 10(e), 5
U.S.C. §706, and the Immigration and Nationality Act (“INA”) §§ 202(a)(1)(A), 207,
212(f), Pub. L. No. 89-236, 66 Stat. 187 (codified as amended at 8 U.S.C. §§
1152(a)(1)(A), 1182(f)).
9. This Court is authorized to award the requested declaratory and injunctive relief under
the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and the APA, 5 U.S.C. § 706.
10. Venue is proper in this District under 28 U.S.C. §1391(b)(2) and (e)(1). Defendants are
officers or employees of the United States acting in their official capacities, and agencies
of the United States. Plaintiff Jane Doe #2 resides in this District. No real property is
involved in this action.
PARTIES
11. Plaintiff Eblal Zakzok, PhD, is a native of Syria and a lawful permanent resident of the
United States, who currently resides in Columbus, Ohio. Dr. Zakzok teaches Surveying,
Remote Sensing and Geographical Information Systems at the Ohio State University. He
was tortured in Aleppo by the Syrian regime and granted asylum in the United States in
2014. Dr. Zakzok’s wife and three of his children were granted asylee benefits in 2016
and came to the U.S. to join him. But Dr. Zakzok’s eldest daughter was forced to remain
in Turkey, as she was over 21 at the time and thus not eligible for derivative asylum
benefits. On August 25, 2017, Plaintiff Zakzok filed a Petition for Alien Relative, Form I130, seeking approval for his daughter, Turkie, to immigrate to the United States. The
Petition is currently still pending with USCIS.

5

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Case 1:17-cv-02969-TDC Document 1 Filed 10/06/17 Page 6 of 30

12. Plaintiff Sumaya Hamadmad is an American citizen of Syrian descent who currently
resides in Ohio. Plaintiff Hamadmad’s sister  is  a Syrian national, currently residing in
Amman, Jordan, who is trying to visit Hamadmad and her other relatives in the United
States. She also plans to participate in an academic project with American researchers
and applied for a B1/B2 visa on October 3, 2017. Plaintiff Hamadmad’s father-in-law is a
Syrian national, living in Syria. Hamadmad’s husband filed an I-130 Petition for Alien
Relative on behalf of his father. The Petition is currently still pending with USCIS.
13. Plaintiff Fahed Muqbil is an American citizen of Yemeni descent who currently resides
in Mississippi. In 2012, Muqbil married his wife, a Yemeni national. They have two
daughters together, one of whom has a serious birth defect and is currently receiving
medical treatment in the United States. Plaintiff Muqbil seeks to bring his wife, who now
resides in Egypt, to the United States as an immigrant on the basis of their marriage. In
June 2017, Muqbil submitted an I-130 Petition for Alien Relative on behalf of his wife,
which was subsequently approved on August 17, 2017. Plaintiff Muqbil and his wife
have an appointment for a visa interview in Egypt scheduled for October 10, 2017.
14. John Doe #1 is a United States citizen residing in New Jersey. In 2017, he married a
Syrian national in the United States. John Doe #1 seeks to bring his wife, who now
resides in Portugal, back to the United States as an immigrant on the basis of their
marriage.
15. Jane Doe #2 is an American citizen of Syrian descent who currently resides in Maryland
with her mother, her husband, and her child. Earlier this year, Jane Doe #2 submitted an
I-130 Petition on behalf of her father, a Syrian national living in a Gulf nation, who seeks

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to immigrate to the United States and be reunited with his family. USCIS approved the
petition, but her father has not yet been interviewed for his visa application.
16. Jane Doe #3 is an American citizen residing in Minnesota. She is engaged to a Somali
foreign national residing in Malaysia, who seeks to immigrate to the United States and
marry Jane Doe #3. She has submitted an I-129F petition on behalf of her fiancé, which
USCIS has approved. However, the fiancé’s visa application is still pending.
17. Defendant Donald J. Trump is the President of the United States. He issued the original
January 27, 2017, Executive Order (EO-1), the second March 6, 2017, Executive Order
(EO-2), and most recently, the September 24, 2017, Proclamation that is the subject of
this Complaint.
18. Defendant U.S. Department of Homeland Security (“DHS”) is a federal cabinet agency
responsible for implementing and enforcing the INA and the Proclamation that is the
subject of this Complaint. DHS is a Department of the Executive Branch of the United
States Government, and is an agency within the meaning of 5 U.S.C. § 522(f). The U.S.
Citizenship and Immigration Services (“USCIS”) is a component of DHS that is
responsible for adjudicating requests for immigration benefits for individuals located
within the United States.
19. Defendant U.S. Department of State is a federal cabinet agency responsible for
implementing the Proclamation that is the subject of this Complaint. It is a department of
the Executive Branch of the United States Government, and it is an agency within the
meaning of 5 U.S.C. § 522(f).

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20. Defendant Elaine Duke is the Acting Secretary of Homeland Security. Acting Secretary
Duke has responsibility for overseeing enforcement and implementation of the
Proclamation by all DHS staff. She is sued in her official capacity.
21. Defendant Rex Tillerson is the Secretary of State and has responsibility for overseeing
enforcement and implementation of the Proclamation by all State Department staff. He is
sued in his official capacity.
STATEMENT OF FACTS
President Trump’s Statements on Muslims and Islam
22. Defendant Trump has made frequent, explicitly bigoted statements about Islam and
Muslims in print, on television, via official statements, and on Twitter. EO-1, EO-2, and
the Proclamation are the manifestations of that religious animus.
23. On or about March 10, 2016, in an interview aired on CNN, Defendant Trump declared
“Islam hates us.”3 
24. On December 13, 2015, during a Fox News interview, Defendant Trump was asked if his
campaign promise to implement a Muslim Ban would apply to a Canadian businessman
who is Muslim. His response equated Islam to a disease and said that its followers were
sick, disease-ridden people. Specifically, Defendant Trump stated: “There’s a sickness.
They’re [Muslims are] sick people. There’s a sickness going. There’s a group of people
that is very sick.”4

3

Theodore Schleifer, Donald Trump: ‘I think Islam hates us,’ CNN, Mar. 10, 2016,
http://www.cnn.com/2016/03/09/politics/donald-trump-islam-hates-us/.
4
Dan Friedman, Trump cites ‘sickness’ in defense of Muslim immigration ban proposal,
Washington Examiner, Dec. 13, 2015, http://www.washingtonexaminer.com/trump-citessickness-in-defense-of-muslim-immigration-ban-proposal/article/2578269.
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25. Defendant Trump’s campaign statements regarding Islam and Muslims reveal that the
intent of the Proclamation, like EO-1 and EO-2 before it, is to disfavor Islam and
stigmatize Muslims.
26. After winning the Republican nomination, Defendant Trump began using more neutral
language to describe his Muslim Ban pledge.
27. On or about July 24, 2016, however, Defendant Trump conceded that the neutral
language was simply a veneer intended to subdue the public controversy generated by his
discriminatory plan. In an interview on NBC, Defendant Trump explained: “People were
so upset when I used the word Muslim. Oh, you can’t use the word Muslim…And I’m
OK with that, because I’m talking territory instead of Muslim.”5
EO-1
28. On January 27, 2017, Defendant Trump issued EO-1. Section 3(c) suspended entry of
immigrant and nonimmigrant nationals of seven Muslim-majority countries: Iran, Iraq,
Libya, Somalia, Sudan, Syria, and Yemen.
29. Although EO-1 did not use the words Islam or Muslim, the pretext was apparent from the
beginning. A close Trump advisor, Rudolph Giuliani, boasted on national television that
he had been asked to “show [Donald Trump] the right way to do [the Muslim Ban]
legally.” Giuliani said he had formed a commission to find a way to achieve the Muslim
Ban’s scope without mentioning Islam or Muslims.6

5

Carrie Dann, Donald Trump: I’m Running Against Hillary Clinton, Not ‘Rest of the World,’
NBC News, July 24, 2016, https://www.nbcnews.com/storyline/2016-conventions/trump-i-mrunning-against-hillary-not-rest-world-n615581.
6
Amy Wang, Trump asked for a ‘Muslim ban,’ Giuliani says – and ordered a commission to do
it ‘legally,’ Wash. Post, Jan. 29, 2017,
http://wapo.st/2khcw0t?tid=ss_tw&utm_term=.ab2db76b30de.
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30. Indeed, EO-1 contained explicit preferences for “religious minorities” in the seven
Muslim-majority countries targeted by the ban. Sections 5(b) and 5(e) established special
benefits only available to persons who were not Muslim. Section 5(b) authorized the
Secretary of State “to prioritize refugee claims made by individuals on the basis of
religious-based persecution … provided that the religion of the individual is a minority
religion in the individual’s country of nationality.” Since the countries that were the
subject of the ban were overwhelmingly Muslim, these religious minorities were by
definition non-Muslim people. Section 5(e) contained a similar explicit preference for
persons who were not Muslim from the seven banned countries.
31. EO-1 also contained a reference to “honor killings,” a term that is commonly used to
portray domestic violence in the Muslim community as sanctioned by Islam. It suggested
that the threat of admitting persons who engaged in “honor killings” was what, in part,
justified the categorical visa ban on seven Muslim-majority countries.
32. Defendant Trump emphasized EO-1’s religious preference. He explained during an
interview with the Christian Broadcasting Network that his order was “going to help
[persecuted Christians]” as opposed to Muslims. His answer made clear that the intent of
EO-1 was to treat foreign nationals in the seven identified countries differently based on
their faith.7
33. EO-1 was immediately challenged in several courts and its operative provisions were
enjoined, including by a nationwide injunction issued on February 3, 2017.

See

Washington v. Trump, No. C17-0141-JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017)

7

Carol Morello, Trump Signs Order Temporarily Halting Admission of Refugees, Promises
Priority for Christians, Wash. Post, Jan. 27, 2017,
http://wapo.st/2kbZl05?tid=ss_tw&utm_term=.816cd900dc2d.
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(enjoining sections 3(c), 5(a)-(c), and 5(e) of EO-1); Darweesh v. Trump, No. 17 CV 480,
2017 WL 388504 (E.D.N.Y. Jan. 28, 2017) (prohibiting the government from removing
individuals pursuant to EO-1); Aziz v. Trump, No. 1:17 CV 116, 2017 WL 580855 (E.D.
Va. Feb. 13, 2017) (granting preliminary injunction of portions of EO-1 on Establishment
Clause grounds).
34. On February 9, 2017, the Ninth Circuit Court of Appeals issued a unanimous decision
upholding a temporary restraining order issued by the United States District Court for the
Western District of Washington enjoining and restraining Sections 3(c) and 5(a)-(c) of
the First Muslim Ban. See Washington, 847 F.3d 1151.
35. Defendant Trump revoked EO-1 via a subsequent order, Exec. Order No. 13780,
“Protecting the Nation from Foreign Terrorist Entry Into the United States” (EO-2).
EO-2
36. Defendant Trump signed EO-2 on March 6, 2017, which was a clear continuation of
Defendant Trump’s attempt to discriminate against Muslims and broadcast a message of
disfavor against Islam.
37. Aside from a new “Policy and Purpose” section, EO-2 is largely the same as EO-1.
Indeed, EO-2 contains entire sections of EO-1’s text, including EO-1’s Section 5(g),
Section 6, Section 8, and Section 10.
38. EO-2 established the same mechanism as EO-1 to extend the 90-day ban applicable to
foreign nationals from six of the seven banned countries. EO-2 §2. And it adopted the
same mechanism to review information from foreign countries to determine whether
additional countries should be added. Id.

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39. EO-2 excluded Iraq from its scope and exempted lawful permanent residents and current
visa holders, but it kept the 120-day refugee ban and reduced the refugee cap to 50,000.
EO-2 also maintained EO-1’s reference to “honor killings” associated with Muslims.
40. A senior advisor to Defendant Trump, Stephen Miller, explained that the goal of EO-2’s
revisions was “to be responsive to the judicial ruling” and that the changes in EO-2 were
to be “mostly minor, technical differences. Fundamentally, you are still going to have the
same, basic policy outcome for the country.”8
41. The national security claims underlying EO-2 were obviously pretextual. The Department
of Homeland Security had conducted an assessment concluding that national origin was
an “unlikely indicator” of terrorist threats to the US, and that the countries affected by
EO-1 and EO-2 were not the top countries of origin for immigrants who actually
committed acts of terrorism inside the United States.9
42. On March 15, 2017, the U.S. District Court for the District of Hawaii issued a nationwide
injunction enjoining Defendants from enforcing or implementing sections 2 and 6 of EO2. Hawaii v. Trump, 241 F.Supp.3d 1119 (D. Haw. 2017). On June 12, 2017, the Ninth
Circuit largely upheld the injunction. See Hawaii, 859 F.3d at 756.
43. On March 16, the U.S. District Court for the District of Maryland also issued a
nationwide injunction against parts of EO-2, Int’l Refugee Assistance Project v. Trump,
241 F.Supp.3d 539 (D. Md. 2017), which was upheld in relevant part by the Fourth
Circuit on May 25, 2017. Int’l Refugee Assistance Project, 857 F.3d at 544.
8

Miller: New Order Will Be Responsive to the Judicial Ruling, Fox News (Feb. 21, 2017),
http://video.foxnews.com/v/5331823544001/?#sp=show-clips.
9
Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States, Dept. of
Homeland Sec., https://assets.documentcloud.org/documents/3474730/DHS-intelligencedocument-on-President-Donald.pdf (draft report obtained and released by Associated Press on
Feb. 24, 2017).
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44. The Defendants in Hawaii and Int’l Refugee Assistance Project petitioned the Supreme
Court for a writ of certiorari and applied for a stay of the injunctions pending appeal. On
June 26, 2017, the Supreme Court granted certiorari, consolidated the two cases, and
partially stayed the preliminary injunctions, allowing the Second Muslim Ban to become
effective, except as to foreign nationals with a “bona fide relationship with a person or
entity in the United States.” See Trump, 137 S. Ct. at 2088.
45. The Court stayed the Hawaii injunction with respect to “foreign nationals abroad who
have no connection to the United States,” but reaffirmed that sections 2(c), 6(a), and 6(b)
of EO-2 “may not be enforced against foreign nationals who have a credible claim of a
bona fide relationship with a person or entity in the United States.” Id. at 2088. The
Court’s order specifically protected foreign nationals with a “close familial relationship”
with a person in the United States. Id.
46. Following the Court’s ruling, the Department of Homeland Security adopted a narrow
interpretation of “close familial relationship” designed to exclude as many Muslims as
possible from the United States.

DHS’s definition of “close familial relationship”

excluded grandparents and aunts but allowed mothers-in-law and siblings. This definition
was challenged and, on July 13, 2017, the Hawaii district court modified its preliminary
injunction to prohibit Defendants from applying the Second Muslim Ban to grandparents,
grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins
of persons in the United States.

The court concluded that such individuals have

sufficiently “close family relationship” to fall within the ambit of the preliminary
injunction, as modified by the Supreme Court. Hawaii v. Trump, No. CV 17-00050
DKW-KSC, 2017 WL 2989048 (D. Haw. July 13, 2017).

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47. Defendants provided no rationale for their narrow definition of “close familial
relationship” and no security-based rationale exists for allowing siblings but not
grandparents of U.S. persons to travel to the United States. The only explanation for such
an irrational definition is a desire to keep as many Muslims as possible out of the United
States.
48. On July 19, 2017, the Supreme Court denied the government’s motion seeking
clarification of the Court’s June 26, 2017 order, thereby leaving the Hawaii court’s July
13, 2017 modified injunction in place. See Trump v. Hawaii, No. 16-1540, 2017 WL
3045234, 86 U.S.L.W. 3039 (U.S. July 19, 2017).
49. Under the terms of EO-2 and a subsequent Presidential Memorandum, the entry ban on
national of the six countries without such bona fide relationship remained in effect until
September 24, 2017,10 the day the President signed the Proclamation at issue in this case.
50. The Supreme Court had scheduled oral argument in the Int’l Refugee Assistance Project
and Hawaii cases for October 10, 2017. But following the Proclamation, the Court
removed the oral argument from its calendar and ordered additional briefing from the
parties on whether the Proclamation renders the cases moot. Trump v. Int’l Refugee
Assistance Project, No. 16-1436, 2017 WL 2405595 (U.S. Sept. 25, 2017).
The Proclamation
51. On September 24, 2017, the day EO-2 was set to expire, Defendant Trump signed the
latest iteration of the Muslim ban, the Proclamation at issue in this case. The
Proclamation, inter alia, permanently bans people from most of the Muslim countries

10

See Memorandum of June 14, 2017 on Effective Date in Executive Order 13780, 82 Fed. Reg.
27,965 (June 19, 2017).

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targeted in EO-1 and EO-2: Iran, Libya, Syria, Yemen, and Somalia. It also includes a
ban on people from Chad, another Muslim-majority country.
52. The Proclamation also bans travel from North Korea (from which a negligible number of
people come to the United States) as well as some government officials from Venezuela.
The impact of the Proclamation, however, is overwhelmingly on Muslims.
53. The Proclamation is an outgrowth of EO-2, which directed the Departments of State and
Homeland Security to conduct a “worldwide review” to determine whether additional
information would be required from some countries to properly adjudicate visa
applications.11 This review found 47 countries to be “inadequate” or “at risk” of
becoming “inadequate.” Proclamation at § 1(e).

But the end product was just a

permanent iteration of EO-1 and EO-2, establishing indefinite wholesale bans on five of
the same Muslim countries, based on the same religious animus.
54. On September 27, 2017, Defendant Trump was asked why Sudan was removed from the
ban list. Defendant Trump provided no explanation for this action.
55. The addition of North Korea and a small number of Venezuelan government officials to
the travel blacklist is a transparent attempt to disguise the Proclamation’s anti-Muslim
intent. Only a tiny number of travelers would be affected (just 109 visas were issued to
North Korean nationals in 2016, for example),12 and neither country has a history of
sponsoring terrorism in the United States.

11

This review was required by EO-2 § 2. It was temporarily enjoined by a federal court as part of
the travel ban litigation, but allowed to go forward in June 2017. Hawaii v. Trump, No. 1700050-DKW-KSC at 23 (D. Haw. Mar. 23, 2017); Hawaii v. Trump, 859 F.3d at 741.
12
Department of State – Bureau of Consular Affairs, Table XVIII: Nonimmigrant Visas Issued by
Nationality (Including Border Crossing Cards) Fiscal Year 2007-2016,
https://travel.state.gov/content/dam/visas/Statistics/Non-ImmigrantStatistics/NIVDetailTables/FY16%20NIV%20Detail%20Table.pdf (last accessed Oct. 4, 2017)
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56. Overall, the Proclamation bars approximately 138 million Muslim nationals from six
Muslim-majority nations, which is more than 85% of the people affected by the
Proclamation.13
57. The practical effects of the Proclamation also bear a striking resemblance to EO-2. Using
2016 data as a baseline, the current policy would ban 76% of nonimmigrant visa
applicants and 91% of immigrant visa applicants affected by the previous order.14 The
overlap is substantial despite the inclusion of Chad and North Korea, which together only
had 1,049 total visas issued in 2016 of the kind affected by the Proclamation – tourist,
business, and immigrant visas for Chad (940), and all visas for North Korea (109).
Likewise, the addition of Venezuela does not meaningfully change the calculus because
the restrictions apply only to government officials and their families, not to ordinary visa
applicants.
58. In effect, the Proclamation makes permanent many of the temporary restrictions imposed
by EO-1 and EO-2. For example, whereas EO-2 temporarily banned Iranian nationals

(100 nonimmigrant visas issued); Department of State – Bureau of Consular Affairs, Table XIV:
Immigrant Visas Issued at Foreign Service Posts (by Foreign State Chargeability) (All
Categories) Fiscal Years 2007-2016,
https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/FY16
AnnualReport-TableXIV.pdf (last accessed Oct. 4, 2017) (9 immigrant visas issued).
13
See Pew Research Ctr., The Global Religious Landscape 45–50 (2012).
14
Harsha Panduranga, Faiza Patel, & Michael Price, Extreme Vetting & the Muslim Ban 14
(2017). For State Department figures on total nonimmigrant U.S. visa types issued to foreign
states, see Department of State – Bureau of Consular Affairs, FY 2016 Nonimmigrant Visas
Issued, https://travel.state.gov/content/dam/visas/Statistics/Non-ImmigrantStatistics/NIVDetailTables/FY16%20NIV%20Detail%20Table.pdf (last accessed September 26,
2017). For State Department figures on U.S. immigrant visas issued to foreign states, see
Department of State – Bureau of Consular Affairs, Table XIV: Immigrant Visas Issued at
Foreign Service Posts (by Foreign State Chargeability) (All Categories) Fiscal Years 20072016, supra. Data from the tables above were used in combination with the visa issuance types
exempted from Executive Order 13780 and Proclamation 9645 to calculate the total number of
individuals in the new policy banned from entry in Panduranga, Patel, & Price, supra, at 14.
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from obtaining any visas, the Proclamation permanently bans Iranian nationals from
obtaining most kinds of visas. For the few visas still available to Iranian nationals, those
visas are now subjected to a different process.
59. Like EO-2, the Proclamation makes it impossible for nationals from Syria, Somalia,
Libya, Yemen, and Iran to obtain immigrant visas. Like EO-2, the Proclamation makes it
impossible for Syrian nationals to obtain any non-immigrant visas and prohibits nationals
from Libya, Yemen, and Iran from obtaining many kinds of non-immigrant visas. And
like EO-2, the Proclamation is rooted in religious animus, not reasonably related to
legitimate national security concerns.
Facts Relating to the Claims of the Plaintiffs
Eblal Zakzok
60. Plaintiff Eblal Zakzok (“Zakzok”) is a native of Syria and a lawful permanent resident of
the United States, who currently resides in Columbus, Ohio.
61. Zakzok attended graduate school at the University of Manchester in the United Kingdom.
In 2008, after obtaining his PhD, he returned to Syria and was employed as a full-time
assistant professor at Aleppo University until the beginning of 2014, when Syrian regime
security forces detained, beat and tortured him for two weeks.
62. In September 2014, Zakzok and his family fled from Syria to Turkey, to escape the
horrific civil war, and to escape further persecution and torture.
63. While his wife and children temporarily remained in Turkey, Plaintiff Zakzok came to
the United States on September 30, 2014 to present a paper at an international conference
in Michigan and requested asylum.

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64. He was granted asylum on December 17, 2014 and was assisted by The Scholar Rescue
Fund of the Institute of International Education in obtaining a fellowship at the Ohio
State University where he teaches Surveying, Remote Sensing and Geographical
Information Systems.
65. Following his successful asylum application, Plaintiff Zakzok’s wife and three of his
children were granted asylee benefits on January 25, 2016. Shortly thereafter, they
traveled to the United States to be reunited with Plaintiff Zakzok.
66. Plaintiff Zakzok’s remaining daughter, Turkie Zakzok, was forced to remain in Turkey
because she was over 21 at the time he was granted asylum and thus did not qualify for
derivative asylum benefits.
67. On August 25, 2017, Plaintiff Zakzok filed a Petition for Alien Relative, Form I-130,
seeking approval for his daughter, Turkie, to immigrate to the United States. The Petition
is currently still pending with USCIS.
68. On September 24, 2107, President Trump issued a Presidential Proclamation which bars
all Syrians from entering the US on either immigrant or non-immigrant visas after
October 18, 2017.
69. The Proclamation will bar Plaintiff Zakzok’s daughter from obtaining the immigrant visa
she has applied for and will prevent her from immigrating to the United States to be
reunited with her father, mother and other siblings.
70. Plaintiff Zakzok’s daughter cannot obtain permanent legal residence in Turkey, and is
therefore at risk of being returned to Syria, where she could face torture and or death.
71. If allowed to go into effect, the Proclamation will deny Plaintiff Zakzok and his family
the ability to be a regular and immediate part of each other’s lives. Additionally, Plaintiff

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Zakzok and his daughter will be forced to continue to live with the fear that his daughter
will be targeted by the many criminals in Turkey who specifically target Syrian women.
Sumaya Hamadmad
72. Plaintiff Sumaya Hamadmad (“Hamadmad”), a native of Syria, is a U.S. citizen residing
in Ohio.
73. On October 3, 2017, Hamadmad’s sister, a Syrian national currently residing in Amman,
Jordan, applied for a B1/B2 visa to enter the United States in order to visit her siblings
and other relatives and to participate in an academic project with American researchers.
74. Hamadmad’s sister’s research is for a collaborative project that involves the epigenetics
of transgenerational trauma of Syrian refugees. She has been the team leader for data
collection of this project in Jordan since 2016 while affiliated with a professor at a
university in Jordan. Specifically, she has been in charge of identifying, recruiting, and
collecting DNA samples and interview data from all of the families in the study.
75. A U.S. university has invited Hamadmad’s sister to provide input on the specifics
regarding the collection of the swab samples and analyses.
76. The Proclamation will prevent Hamadmad’s sister from being able to obtain the required
non-immigrant visa and will thus bar her from traveling to the United States for any
reason. This ban applies to her even though she was born in Jordan and has never been
inside of Syria.
77. Additionally, Hamadmad’s husband has filed an I-130 Petition for Alien Relative seeking
approval for his father, who is currently residing in Syria and is a Syrian national, to
immigrate to the United States. Due to the current dangerous situation in Syria, it is
urgent that Hamadmad’s father-in-law’s application be processed and approved as soon

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as possible. The Proclamation, however, will also prevent Hamadmad’s father-in-law
from having his application for an immigrant visa approved.
Fahed Muqbil
78. Plaintiff Fahed Muqbil is a United States citizen of Yemeni origin. He grew up in
Louisiana and currently resides in Mississippi. In 2012, Muqbil met and married his
wife, a Yemeni national. They have two daughters. The youngest daughter was born in
Yemen in 2016 with a very serious birth defect and its co-morbid conditions –
meningomyelocele (spina bifida), hydrocephalus with VP shunt, Chiari II malformation,
neurogenic bladder, hydro nephrosis, infantile spasms, an epilepsy that is very difficult to
contract, dysphasia, and worsening vision.
79. After her birth, Muqbil travelled from Yemen to Egypt to seek immediate, emergency
treatment for her birth defect. During this time, her head size increased markedly and her
vision begin to worsen.
80. In May 2017, Muqbil left his wife overseas in Egypt in order to bring his baby daughter
to the United States. She was immediately hospitalized at a Children’s hospital. The
hospital began treating her worsening hydrocephalus, the urinary tract infection, and her
seizure disorder. After three weeks, she was discharged to her father and his family.
Two weeks later, she was hospitalized again for increasing seizure activity. Currently,
she is under the care of a neurologist and is on constant medication. According to her
doctors, this type of epilepsy carries a poor neurodevelopmental outcome and that she
will have to be closely monitored for the rest of her life.
81. Since her time in the United States, the baby has undergone many life-threatening
surgeries. Her doctors predict more surgeries may be needed. The mother, Muqbil’s

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wife, has not seen her baby for nearly five months. She was not able to be with her
daughter nor could she provide her with care during this time.
82. Muqbil submitted an I-130 petition for his wife in June 2017, and the petition was
approved on August 17, 2017. Muqbil and his wife are currently in Egypt in preparation
for a visa interview scheduled for October 10, 2017. Their daughter is with his family in
Mississippi while they navigate the visa process. The baby has multiple appointments,
medications, and possible emergency room visits.
83. Unless Muqbil’s wife’s immigrant visa is issued prior to October 18, 2017, she will be
indefinitely banned from caring for her baby and reuniting with Muqbil and her family.
For the welfare of her baby and family, Muqbil’s wife is needed in the United States.
John Doe #1
84. John Doe #1 is a United States citizen residing in New Jersey.
85. In August 2017, John Doe #1 married a Syrian national in the United States. John Doe
#1’s spouse then left the country while he worked to set up their home together and apply
for her to come to the United States as an immigrant on the basis of their marriage.
86. John Doe #1’s spouse now resides in Portugal.
87. John Doe #1 intends to bring his wife to the United States but, in light of the
Proclamation, it would be futile for him to file an I-130 petition seeking approval for her
to immigrate to the United States, as there is no chance such a petition would be
adjudicated and a visa issued prior to the Proclamation’s categorical immigrant visa ban
which comes into effect on October 18, 2017.
Jane Doe #2
88. Jane Doe #2 is a United States citizen, originally from Syria, and a resident of Maryland.

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89. Jane Doe #2’s mother entered the United States in June 2016 and became a lawful
permanent resident a year later in June 2017. Jane Doe #2’s mother now resides in
Maryland with Jane Doe, her husband, and their child.
90. Since Jane Doe #2’s mother left for the United States, her father has lived and worked in
a Gulf nation. Because of work obligations, Jane Doe #2’s father was not ready to come
to the United States permanently at the time when his wife, Jane Doe #2’s mother,
entered the United States and later became a lawful permanent resident.
91. Though living and working abroad, Jane Doe #2’s father has entered the United States on
a tourist visa multiple times without incident.
92. Jane Doe #2 is now pregnant with her second child, and her father has decided to join his
wife, daughter, and grandchildren in the United States permanently.
93. Earlier this year, Jane Doe #2 submitted an I-130 petition seeking approval for her father
to immigrate to the United States.
94. USCIS approved the petition submitted by Jane Doe #2 on her father’s behalf.
95. Upon receiving that approval, Jane Doe #2’s father began his visa application, though he
has not yet been interviewed.
96. Because he is seeking an immigrant visa and is a Syrian national, the Proclamation will
bar Jane Doe #2’s father from entering the United States.
Jane Doe #3
97. Jane Doe #3 is a US citizen residing in Minnesota.
98. Jane Doe #3 is engaged to a Somali foreign national residing in Malaysia, where he has
lived since 2008.

22

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Case 1:17-cv-02969-TDC Document 1 Filed 10/06/17 Page 23 of 30

99. In late 2016, Jane Doe #3 filed an I-129F Petition with USCIS seeking a K-1 visa for her
fiancé. The K-1 visa would permit her fiancé to enter the United States, get married, and
pursue permanent residence in the United States.
100.

USCIS approved Jane Doe #3’s I-129F in March 2017, which then allowed her

fiancé to apply to the Department of State for his visa.
101.

Jane Doe #3’s fiancé has been interviewed by a consular official in Malaysia, has

submitted all requested information, and is now eligible for the visa for which he applied.
102.

However, Section 2(h)(ii) of the Proclamation provides that the entry into the

United States of nationals of Somalia as immigrants is suspended. Because the visa
sought is an immigrant visa, Jane Doe #3’s fiancé will be prohibited from obtaining a
visa because of the Proclamation.
CAUSES OF ACTION
COUNT I
(First Amendment – Establishment Clause)
(On behalf of all Plaintiffs)
103.

The foregoing allegations are repeated and incorporated as though fully set forth

herein.
104.

The Establishment Clause of the First Amendment prohibits the federal

government from officially preferring one religion over another, including actions
intended to disfavor a religion.
105.

Section 2 of the Proclamation and Defendants’ actions to implement it are

intended to disfavor Islam, and have the effect of disfavoring Islam.

23

JA 1236

Case 1:17-cv-02969-TDC Document 1 Filed 10/06/17 Page 24 of 30

106.

Section 2 of the Proclamation and Defendants’ actions to implement it violate the

Establishment Clause by singling out Muslims for disfavored treatment that is neither
justified by, nor closely fitted to, any compelling governmental interest.
107.

Defendants’ violation of the Establishment Clause is causing ongoing and

immediate harm to Plaintiffs.
COUNT II
(Immigration and Nationality Act & Administrative Procedure Act)
(On behalf of all Plaintiffs)
108.

The foregoing allegations are repeated and incorporated as though fully set forth

herein.
109.

The Immigration and Nationality Act provides, with certain exceptions not

applicable here, that “no person shall receive any preference or priority or be
discriminated against in the issuance of an immigrant visa because of the person’s race,
sex, nationality, place of birth, or place of residence.” 8 U.S.C. § 1152(a)(1)(A).
110.

Plaintiff Zakzok’s daughter has applied for an immigrant visa, but pursuant to

Section 2 of the Proclamation, her application will be categorically denied after October
18, 2017. The Proclamation requires denial because of her Syrian nationality, in violation
of 8 U.S.C. § 1152(a)(1)(A).
111.

Plaintiff Hamadmad’s father-in-law has applied for an immigrant visa, but

pursuant to Section 2 of the Proclamation, his application will be categorically denied
after October 18, 2017.

The Proclamation requires denial because of his Syrian

nationality, in violation of 8 U.S.C. § 1152(a)(1)(A).
112.

Plaintiff Fahed Muqbil’s wife has applied for an immigrant visa, but pursuant to

Section 2 of the Proclamation, her application will be categorically denied after October

24

JA 1237

Case 1:17-cv-02969-TDC Document 1 Filed 10/06/17 Page 25 of 30

18, 2017. The Proclamation requires denial because of her Yemeni nationality, in
violation of 8 U.S.C. § 1152(a)(1)(A).
113.

Plaintiff John Doe #1’s wife plans to apply applied for an immigrant visa, but

pursuant to Section 2 of the Proclamation, her application will be categorically denied
after October 18, 2017. The Proclamation requires denial because of her Syrian
nationality, in violation of 8 U.S.C. § 1152(a)(1)(A).
114.

Plaintiff Jane Doe #2’s father has applied for an immigrant visa, but pursuant to

Section 2 of the Proclamation, his application will be categorically denied after October
18, 2017. The Proclamation requires denial because of his Syrian nationality, in violation
of 8 U.S.C. § 1152(a)(1)(A).
115.

Plaintiff Jane Doe #3’s fiancé has a pending immigrant visa based on her

engagement with her fiancé. Pursuant to Section 2 of the Proclamation, his application
will be categorically denied after October 18, 2017. The Proclamation requires such
denial because of his Somali nationality, in violation of 8 U.S.C. § 1152(a)(1)(A).
116.

Section 2 of the Proclamation explicitly mandates discrimination against

immigrant visa applicants because of their nationality, in violation of 8 U.S.C. §
1152(a)(1)(A).
117.

The actions of Defendants, as set forth above, are arbitrary, capricious, and an

abuse of discretion, or are otherwise not in accordance with law; contrary to
constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right; and without observance of procedure
required by law, in violation of the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)(D).

25

JA 1238

Case 1:17-cv-02969-TDC Document 1 Filed 10/06/17 Page 26 of 30

COUNT III
(Substantive Violation of the Administrative Procedure Act through Violations of the
Constitution, Immigration and Nationality Act, and Arbitrary and Capricious Action)
(On behalf of all Plaintiffs)
118.

The foregoing allegations are repeated and incorporated as though fully set forth

herein.
119.

The APA requires courts to hold unlawful and set aside any agency action that is

“arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law”;
“contrary to constitutional right, power, privilege, or immunity”; “or “in excess of
statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. §
706(2)(A)-(C).
120.

In issuing and implementing the Proclamation, Defendants have acted contrary to

the Establishment Clause of the United States Constitution.
121.

In issuing and implementing the Proclamation, Defendants have acted contrary to

the INA.
122.

Defendants have engaged in nationality-based discrimination, contrary to 8

U.S.C. § 1152(a)(1)(A).
123.

Defendants have violated the INA by establishing an ultra vires regime for

processing nonimmigrant visa applications. Defendants have upended the extensive and
complex vetting scheme crafted by Congress and replaced them with a blunt new regime
of bans, requirements, exceptions, and waivers.
124.

Defendants are attempting to set their own standard for admission to the United

States. Proclamation at §§ 2(c), 6(a). They also seek to erase a carefully calibrated
congressional scheme for vetting visa applicants, including a comprehensive “terrorism

26

JA 1239

Case 1:17-cv-02969-TDC Document 1 Filed 10/06/17 Page 27 of 30

bar,” 8 U.S.C. § 1182(a)(3)(B); detailed vetting rules, 8 U.S.C. §§ 1202(b)-(d), 1361; and
exclusions from the Visa Waiver Program, 8 U.S.C. § 1187(a)(12). In short, Defendants
seek to permanently replace an extensive, congressionally-crafted system with its own
warren of waivers and exceptions, imposing burdens on the applicant that are in conflict
with the provisions of the INA. Proclamation at §§ 3(a)-(c).
125.

Plaintiff Hamadmad’s sister has been invited to be a researcher at a top American

university and would otherwise be eligible for a B1/B2 (nonimmigrant) visa, but pursuant
to Section 2 of the Proclamation, her application will be categorically denied after
October 18, 2017.
126.

Plaintiff Jane Doe #3’s fiancé has applied for a fiancée visa and would otherwise

be eligible to receive it, but pursuant to Section 2 of the Proclamation, his application will
be categorically denied after October 18, 2017.
127.

In issuing and implementing the Proclamation, Defendants have acted arbitrarily

and capriciously. While Defendants have sought to portray as objective and considered
the process that led to selecting eight countries for sanctions, it is evident that this is not
the case. EO-1 required the Departments of State and Homeland Security to review
“identity-management and information-sharing capabilities, protocols, and practices,” but
the decisions on which countries to exclude relied to an unspecified extent on other, less
objective concerns such as a broad-ranging “risk assessment.” Even with that subjectivity
built into the process, the Proclamation acknowledges that it did not follow the
conclusions of the review. Iraq was found to have failed the State Department’s baseline
standards, but left off the blacklist. Somalia, on the other hand met the standards, but was
nevertheless included. The issuance of all immigrant visas was stopped, even though the

27

JA 1240

Case 1:17-cv-02969-TDC Document 1 Filed 10/06/17 Page 28 of 30

individuals applying for them have the strongest connections to the United States and
undergo extraordinary vetting prior to approval. Nor does the Proclamation provide any
rationale for why certain categories of visas (primarily tourist and business) are excluded
while others (such as students) are permitted. More broadly, the Proclamation purports to
protect the country from terrorism, but affects millions of people who have absolutely no
connection to terrorism. Through their actions described in this Complaint, Defendants
have violated the substantive requirements of the APA. Defendants’ violation inflicts
ongoing and immediate harm on Plaintiffs.
COUNT IV
(Procedural Violation of the Administrative Procedure Act)
(On behalf of all Plaintiffs)
128.

The foregoing allegations are repeated and incorporated as though fully set forth

herein.
129.

The APA requires courts to hold unlawful and set aside any agency action taken

“without observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
130.

The Departments of State and Homeland Security are “agencies” under the APA.

See 5 U.S.C. § 551(1).
131.

The APA requires that agencies follow rulemaking procedures before engaging in

action that impacts substantive rights. See 5 U.S.C. § 553.
132.

In implementing the Proclamation, federal agencies have changed the substantive

criteria by which individuals from the targeted countries may enter the United States.
This change, among other actions by Defendants, impacts substantive rights.
133.

Defendants did not follow the rulemaking procedures required by the APA in

enacting and implementing the Executive Order.

28

JA 1241

Case 1:17-cv-02969-TDC Document 1 Filed 10/06/17 Page 29 of 30

134.

Defendants have violated the procedural requirements of the APA. This violation

inflicts ongoing and immediate harm upon Plaintiffs.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray that this Court:
A. Declare that Section 2 of the Proclamation is unauthorized by, and contrary to, the
Constitution and laws of the United States;
B. Enjoin the Defendants from implementing or enforcing Section 2 of the
Proclamation across the nation;
C. Award any other relief as the Court may deem just and proper.
Dated: October 6, 2017

Respectfully submitted,
/s/ Charles E. Davidow
Charles E. Davidow (Bar # 06516)
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
2001 K Street NW
Washington, DC 20006-1047
Tel.: [phone]
Fax: [phone]
[e-mail]
Robert A. Atkins†
Liza Velazquez†
Andrew J. Ehrlich†
Steven C. Herzog†
PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP
1285 Avenue of the Americas
New York, NY 10019-6064
[phone]
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

29

JA 1242

Case 1:17-cv-02969-TDC Document 1 Filed 10/06/17 Page 30 of 30

Lena F. Masri†
Gadeir Abbas*†
Council on American-Islamic
Relations (CAIR)
453 New Jersey Avenue SE
Washington, D.C. 20003
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Faiza Patel†
Michael Price†
Brennan Center for Justice
at NYU School of Law
120 Broadway, Suite 1750
New York, NY 10271
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Jethro Eisenstein†
Profeta & Eisenstein
45 Broadway, Suite 2200
New York, New York 10006
Tel.: [phone]
Fax: [phone]
[e-mail]
Counsel for Plaintiffs
†Pro hac vice applications forthcoming
*Licensed in VA; not in DC. Practice
limited to federal matters

30

JA 1243

Case 1:17-cv-02969-TDC Document 6-1 Filed 10/10/17 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

EBLALZAKZOK, etaL
Plaintiffs,

Civil Action No.: 1:17-cv-02969-GLR

v.
DONALD TRUMP, in his official
capacity as President of the United
States, et al..
Defendants.

DECLARATION OF FAHED MUQBIL
I, Fahed Muqbil, to the best of my knowledge, information and belief, hereby
submit this declaration pursuant to 28 U.S.C. § 1746 and declare as follows:

1.

I am a United States citizen and an American Muslim. I was bom

in Yemen on February 16, 1994 and came to the United States with my family when I
was approximately one year old. My mother is a U.S. permanent resident and my father
is a U.S. citizen, and I was naturalized as a U.S. citizen on June 7, 1995. I grew up in
Louisiana and currently reside in Mississippi. My parents and many of my siblings also
live in Mississippi.
2.

In 2012, I met and married my wife, who is a Yemeni national.

My wife is also a Muslim. Together we have two daughters, R.M. and N.M., who were
bom in Yemen on March 22, 2013 and October 10, 2016, respectively.

Both of our

daughters are U.S. citizens.

JA 1244

Case 1:17-cv-02969-TDC Document 6-1 Filed 10/10/17 Page 2 of 5

3.

After getting married, between 2013 and 2015, I traveled between

Mississippi to complete my high school diploma and Yemen to be with my family. I
graduated in May 2014 and intended to return to Yemen to be with my wife and older
daughter, however, because of the war in Yemen, I was not able to return to Yemen until
December 2015. My plan was to live with my family in Yemen until we could obtain a
visa for my wife and passports for our daughters to relocate and permanently live in
Mississippi. My wife and I wanted to petition for a visa for my wife prior to our younger
daughter's birth, but we had trouble doing so because the U.S. Embassy in Yemen was
closed due to the war.
4.

N.M., my younger daughter, was bom with meningomyelocele

(spina bifida), a very serious birth defect with multiple co-morbid conditions. In her
short life, she has developed hydrocephalus with VP shunt, Chiari II malformation,
neurogenic bladder, hydronephrosis, infantile spasms, an epilepsy that is very difficult to
control, dysphasia, and worsening vision. Possibly eighty-five percent of her brain is
damaged and she is unable to pick up her head or move her feet.
5.

N.M. was unable to receive adequate treatment in Yemen due to

the war there. As a result, soon after she was bom, on November 9, 2016, I went to
Egypt with my wife and daughters to seek immediate, emergency treatment for N.M..
6.

In Egypt, N.M. developed a condition called hydrocephalus, and

fluids began accumulating in her head, causing her head size to increase dramatically and
her vision to worsen. In order to get better medical treatment, I brought N.M. to the
United States on May 8, 2017, leaving my wife and older daughter behind in Egypt.

JA 1245

Case 1:17-cv-02969-TDC Document 6-1 Filed 10/10/17 Page 3 of 5

7.

In the United States, N.M. was immediately hospitalized at a

children's hospital. Doctors there began treating her worsening hydrocephalus, a urinary
tract infection, and her seizure disorder. To treat her hydrocephalus, the doctors put in a
shunt connecting N.M.'s head with her kidney, in order to allow the fluids from her head
to drain. After three weeks, she was discharged from the hospital. Two weeks later, she
was hospitalized again for increasing seizure activity due to her epilepsy.
8.

Currently, N.M. is under the care of a neurologist and is on

constant medication. Since coming to the United States, she has undergone several lifethreatening surgeries, and her doctors predict more surgeries may be needed. According
to her doctors, her form of epilepsy carries a poor neurodevelopmental outcome, and she
must be closely monitored for the rest of her life.
9.

My wife has been in Egypt since November 2016.

My older

daughter R.M. has remained in Egypt with her, in part because, given N.M.'s illness, I
cannot care for both daughters in the United States without my wife's assistance. We
also did not want to separate my wife from both of her daughters - it has been incredibly
difficult for my wife to be separated from N.M. N.M. is too sick to safely travel to
Egypt, and so my wife and R.M. have not seen N.M. for nearly five months.

I am

currently with my wife and R.M. in Egypt while we navigate the visa process. I have not
seen N.M., who is with my family in Mississippi, in two months. It is heartbreaking that
I have needed to choose between being with my wife and older daughter or with my
younger daughter.
10.

My wife and I are anguished that she is not able to be with and to

care for N.M., and are very worried that my wife might be permanently banned from

JA 1246

Case 1:17-cv-02969-TDC Document 6-1 Filed 10/10/17 Page 4 of 5

joining me and N.M. in the United States because of President Trump's Proclamation.
As a result, my wife has suffered from depression. It is very painful for me to know that
my wife is suffering such distress and to not be able to do anything about it.
11.

My wife's absence has also made it very difficult for me to care for

N.M.. Because of her illness, N.M. has regular doctors' appointments and takes constant
medications.

She has required frequent hospital visits and could require future

emergency room visits. Although I have assistance from my parents and siblings in
caring for N.M., they cannot care for her long term. I need my wife's help, and our
daughter needs her mother.
12.

As a result of my wife's absence and the significant care N.M.

needs, I cannot work or attend college.

I planned to study engineering at a local

community college but those plans have remained on hold.
13.

I submitted an 1-130 Petition for Alien Relative for my wife in

June 2017, and the petition was approved on August 17, 2017.

My wife has an

appointment for a visa interview in Egypt on October 10, 2017, and cannot enter the
United States until her visa is approved following this interview. I understand that if my
wife is not issued a visa before October 18, 2017 - w h e n President Trump's Proclamation
goes into effect - she will be indefinitely banned from the United States.
14.

I was devastated when I heard about the Proclamation, and I am

very worried at the thought of my wife being permanently banned from rejoining me and
our young daughter in the United States. I miss living as a family with my wife and both
daughters, and it has been very difficult to care for N.M. without the help - and
emotional support - of my wife.

JA 1247

Case 1:17-cv-02969-TDC Document 6-1 Filed 10/10/17 Page 5 of 5

15.

President Trump's Proclamation makes me feel as if I and my

fellow American Muslims arc unwanted, different, and somehow dangerous merely
because of our religion. It paints me and my family as terrorists when vvc have done
*•

nothing wrong. 1 feel condemned and penalized for practicing Islam. President Trump's
Proclamation treats me as a second class citizen simply because of my Islamic faith. My
wife is not a "national security threat." She is a wife and molhcr who wants to lie with
her family-she just happens to be Muslim loo.
I declare under penalty of perjury under the laws of the United States that the
foregoing is true and correct. Executed at

*

October

^

Q&lfp

> ^SYPt

on

,2017.

JA 1248

Case 1:17-cv-02969-TDC Document 6-2 Filed 10/10/17 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

EBLAL ZAKZOK, et al..
Plaintiffs,

Civil Action No.: 1:17-cv-02969-GLR

v.
DONALD TRUMP, in his official
capacity as President of the United
States, et ah,
Defendants.

DECLARATION OF EBLAL ZAKZOK

I, Eblal Zakzok, to the best of my knowledge, information and belief, hereby
submit this declaration pursuant to 28 U.S.C. § 1746 and declare as follows:

1.

I am a native of Syria. I was bom in the countryside outside the

city of Aleppo in 1970. I am a lawful permanent resident of the United States, and a
practicing Muslim.
2.

My wife and I married in 1989 and have five children: Turkie,

Mohamad, Razan, Saleh and Rasha, who were bom in 1993, 1996, 1999, 2001 and 2008,
respectively.
3.

I studied civil engineering at Aleppo University in Syria and

graduated with a degree in 1994. I thereafter continued my studies at the University of
Manchester in the United Kingdom and received my Ph.D. in 2007.

JA 1249

Case 1:17-cv-02969-TDC Document 6-2 Filed 10/10/17 Page 2 of 5

4.

After graduating from the University of Manchester, my family

and I returned to my hometown in Syria and I accepted a position as an assistant
professor at Aleppo University.
5.

Upon returning to Syria, I noticed the political conditions

deteriorating quickly. While my commute from my home to the university in Aleppo
would normally take 45 minutes, between 2008 and 2014 it became increasingly difficult
and dangerous to get from my hometown to Aleppo. The Syrian regime and rebel groups
set up checkpoints along the road to Aleppo and the road was littered with artillery shells.
I saw outbursts of violence and fighting on my way to work each day. By early 2014, it
would sometimes take me 6 hours to get to work.
6.

On Febmary 22, 2014,1 was detained by the Syrian regime on my

way to work. I was told that my name appeared on a list of persons critical of the Syrian
government. I was detained for two weeks, and kept in an approximately 30 square
meter cell. At times there were so many people in the cell that we could not sit or lie
down. I was beaten and tortured while in custody, and the overcrowded, unsanitary
conditions left me with a painful skin disease that persisted even after my release.
7.

On March 9, 2014,1 was brought before a judge for a hearing, and

the judge dismissed the charges and released me. The judge told me that, as a university
professor, I should not be living or traveling around Aleppo.
8.

After I was released, my family and I decided it was no longer safe

for us in Syria and that we had to leave. At that point, my hometown had been taken over
by ISIS.

JA 1250

Case 1:17-cv-02969-TDC Document 6-2 Filed 10/10/17 Page 3 of 5

9.

In September 2014, my family and I left Syria and immigrated to

Istanbul, Turkey.
10.

On September 30, 2014,1 traveled to the United States to present a

paper at a conference at Eastern Michigan University, to which I had been invited shortly
before my family and I left Syria. Although I had a visa to enter the United States for this
purpose, I was denied entry upon arrival in Detroit, MI, on suspicion that my intent was
to immigrate to the United States. Upon being denied entry, I applied for asylum in the
United States. I was detained by immigration services while my asylum application was
pending.
11.

On December 17, 2014, my asylum application was approved. I

stayed with friends in the Detroit area for a few months until the Ohio State University
offered me a position as an assistant professor of Surveying, Remote Sensing and
Geographical Information Systems, in May 2015. OSU offered me this position as part
of The Scholar Rescue Fund of the Institute of International Education, which provides
fellowships to academics who are refugees living in the United States.
12.

After my asylum application was approved, I applied for derivative

benefits for my wife and eligible children. My wife and three of my children were
granted these benefits on January 25, 2016 and thereafter joined me in Columbus, Ohio.
As refugees, the four of us are lawful permanent residents in the United States. I also
have a green card.
13.

My eldest son's application for derivative asylum benefits was

delayed due to administrative processing but was finally approved on October 4, 2017.
We expect he will join us in Ohio shortly.

JA 1251

Case 1:17-cv-02969-TDC Document 6-2 Filed 10/10/17 Page 4 of 5

14.

My eldest daughter, Turkie, was not eligible for derivative benefits

because she was older than 21 years of age when I was granted asylum in the United
States. Therefore, on August 25, 2017,1 filed a Petition for Alien Relative, Form 1-130,
seeking approval for Turkie to immigrate to the United States and be reunited with the
rest of my family. The Petition is currently pending with USCIS.
15.

It is my understanding that the Presidential Proclamation

announced by President Tmmp on September 24, 2017, which bars all Syrians from
entering the United States on either immigrant or non-immigrant visas after October 18,
2017, will prevent my daughter Turkie from receiving a visa to immigrate to or visit the
United States indefinitely.
16.

My wife and I, as well as our children, are distraught at the

possibility that Turkie may never be able to be reunited with us in the United States. I
fear for my daughter's safety in Turkey, where I understand Syrian women are
specifically targeted by criminals. Further, my daughter is not a permanent legal resident
in Turkey and therefore could be required to return to Syria, where I fear she would be
subjected to the same torture and persecution that I suffered prior to my family fleeing
the country.
17.

I currently support Turkie financially. When my family and I fled

Syria, Turkie's studies at Aleppo University were intermpted and she has not completed
her degree. Although she was accepted to Ohio State University in 2015 to complete her
degree in English Literature, and received an exceptional score on her English
proficiency exam, she was denied a student visa because the government believes it is her
intent to immigrate to the United States permanently. If the Proclamation goes into

JA 1252

Case 1:17-cv-02969-TDC Document 6-2 Filed 10/10/17 Page 5 of 5

effect, it will inhibit Turkic's ability to finish her degree and to obtain gainful
employment. It will prevent Turkie from rejoining our family in Ohio where she would
live with us and contribute to the household income. It would further require me to
continue to supporting herfinancially,which costs thousands of dollars per month, while
she regrettably lives alone without our family in Istanbul.
18.

I do not understand why the President is trying to ban people from

Syria and other Muslim countries from entering the United States. I feel this is basically
an attack on my religion, Islam, and on all Muslims who want to immigrate to this
country.
I declare under penalty of perjury that the foregoing is true and correct. Executed
at

Columbus

o h i o on 0ctober

_ 9 _ ; 2017.

(ff££a£ '?<zA%&/£'

'S^r

EBLAL ZAKZOK

JA 1253

Case 1:17-cv-02969-TDC Document 6-3 Filed 10/10/17 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

EBLAL ZAKZOK, et al.
Plaintiffs,

Civil Action No.: 1:17-cv-02969-GLR

v.
DONALD TRUMP, in his official
capacity as President of the United
States, et al..
Defendants.

DECLARATION OF SUMAYA HAMADMAD
I, Sumaya Hamadmad, to the best of my knowledge, information and
belief, hereby submit this declaration pursuant to 28 U.S.C. § 1746 and declare as
follows:

1.

I am a United States citizen, and a practicing Muslim of Syrian

descent. I live in Ohio with my husband and three children.
2.

Although I was bom in Syria, I left Syria when I was three years

old and moved to the United Arab Emirates, and then subsequently to Jordan. I came to
the United States in 2001 to pursue my Ph.D. in Pharmacology, which I obtained in 2006.
I completed a postdoctoral fellowship at Yale University and am currently a researcher in
pharmacology at the Ohio State University.
3.

I have a younger sister, Dima, who lives in Amman, Jordan. My

sister was bom in Jordan and has lived in Jordan all her life, but is not a Jordanian citizen.

JA 1254

Case 1:17-cv-02969-TDC Document 6-3 Filed 10/10/17 Page 2 of 5

Syrian citizenship is inherited through the nationality of your parents, and there is no path
to citizenship for Syrian immigrants in Jordan.
4.

My sister recently graduated from the Jordan University of Science

and Technology. She works at a non-governmental organization in Jordan, performing
research for a collaborative project that involves the epigenetics of transgenerational
trauma of Syrian refugees. She has been the team leader for data collection on this
project in Jordan since 2016. Specifically, she is in charge of identifying, recmiting, and
collecting DNA samples and interview data from all of the families in the study.
5.

Dima has received invitations to perform crucial genetic research

at Yale University and the University of Florida. She would be advising on the specifics
regarding the collection of DNA swab samples and analyses. She applied for a B1/B2
visa on October 3, 2017, which would permit her to come to the United States for a
mixed business and tourist purpose, so that she can perform this research and visit my
family during her trip.
6.

My sister was interviewed on October 9 at the U.S. Embassy in

Jordan and was approved for her B1/B2 visa and was told the visa should be issued in
approximately five days.
7.

It is my understanding that the Presidential Proclamation

announced by President Tmmp on September 24, 2017, which bars all Syrian citizens
from entering the United States on either immigrant or non-immigrant visas after October
18, 2017, will prevent my sister from receiving any further visas to visit or conduct
business in the United States indefinitely.

JA 1255

Case 1:17-cv-02969-TDC Document 6-3 Filed 10/10/17 Page 3 of 5

8.

My sister was bom in Jordan, and she has spent her whole life in

Jordan. But it is my understanding that my sister will not be treated like a Jordanian
when the Proclamation goes into effect. She will be treated like someone who lives in
Syria, even though she has never been to Syria. I do not understand why the United
States would prohibit someone like my sister, who has never been to Syria and who is
needed to perform important research in the United States, from traveling to the United
States.
9.

The Proclamation will also prevent my father-in-law, a Syrian

national, living in Syria, from being able to visit or immigrate to the United States.
10.

My husband has filed a Form 1-130, Petition for Alien Relative, on

my father-in-law's behalf. The petition is currently pending.
11.

My father-in-law has been diagnosed with skin cancer and prostate

cancer. It is difficult to get access to quality medical care for this kind of condition in
Syria. We would like for him to be able to receive treatment for these conditions in the
United States.
12.

It is stressful to be unable to help my father-in-law. He is 81 years

old, and it is hard to live in Syria. My children are his only grandchildren and it is
painful for all of us that he lives so far away and may be separated from us indefinitely.
13.

It is important to me that my children spend time and connect with

the older generations of my family. I have seen how much impact an in-person visit with
family can have on my children. My children met their cousins for the first time a year
ago, and they still talk about how special it was to meet someone who loves them in
person.

JA 1256

Case 1:17-cv-02969-TDC Document 6-3 Filed 10/10/17 Page 4 of 5

14.

I want my children to be able to hug their aunt and grandfather,

speak Arabic with them, and develop the kind of close relationship with them that can
only come from spending physical time together. My sister has not been to the United
States since 2005 and has not been able to meet one of my children—her nephew—in
person. My mother died four years ago and so I know there are only so many
opportunities for my children to meet their family.
15.

If the Proclamation goes into effect, I may never be able to provide

for my children this important experience of connecting with their relatives. It will
inhibit my ability to instill in my children that they are Syrian-American and have a
proud heritage.
16.

I feel that this Proclamation hurts the United States. Most of my

friends who are immigrants are scientists, engineers, doctors, and graduate students.
They are people who help contribute and make this country great. I would not have been
able to get my Ph.D. if this Proclamation was in place when I arrived. It makes me
nervous for the country's future.
17.

I believe the Proclamation damages the welcoming atmosphere

that the United States had when I immigrated here.
18.

I fear for myself and my family that the United States no longer

embraces people of different backgrounds and abilities, and I feel that this Proclamation
is basically an attack on my Islamic faith and all Muslims.
I declare under penalty of perjury that the foregoing is true and correct.
Executed at

Columbus

Ohio on October _J_, 2017.

JA 1257

Case 1:17-cv-02969-TDC Document 6-3 Filed 10/10/17 Page 5 of 5

SUMAYA HAMADMAD

JA 1258

Case 1:17-cv-02969-TDC Document 6-4 Filed 10/10/17 Page 1 of 4

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
EBLAL ZAKZOK, et al.
Plaintiffs,

Civil Action No.: l:17-cv-02969-GLR

v.
DONALD TRUMP, in his official
capacity as President of the United
States, et al..
Defendants.

DECLARATION O F J O H N D O E #1

I , ^ ^ ^ ^ ^ ^ ^ 1 , known as John Doe #1 for the purposes of this case, to the
best of my knowledge, information and belief, hereby submit this declaration pursuant
to 28 U.S.C. § 1746 and declare as follows:
1.

I am a United States citizen, and I am Muslim. I live in New

2.

I was born o n ^ ^ H ^ ^ m H , in Kuwait. I first came to the

Jersey.

United States in 1999. I have a Master's Degree in Social Work and Management and
Policy from Rutgers University
3.

In August 2017, my wife and I, a Syrian national, married in the

4.

My wife was bom and grew up in Saudi Arabia. She studied

United States.

dentistry, and is now pursuing a Master's degree in dentistry in Portugal on a full
scholarship.

JA 1259

Case 1:17-cv-02969-TDC Document 6-4 Filed 10/10/17 Page 2 of 4

5.

Soon after we married, my wife returned to Portugal to continue

her studies while I set up our home in New Jersey and prepared to apply for her to come
to the United States as an immigrant on the basis of our marriage.
6.

I have one child, my nine-year-old stepdaughter. She is my wife's

biological daughter, and a Syrian national. My stepdaughter lives in Saudi Arabia with
my wife's parents. She is a permanent resident of Saudi Arabia, and her permanent
residency status expires in 2018.
7.

Our plan is for my wife to immigrate to the United States on an I-

130 visa after she completes her master's program and then to apply for derivative
benefits for my stepdaughter to join us. We plan to raise our daughter in the United
States. It is currently very difficult for me to visit my stepdaughter because of Saudi
Arabia's stringent visa requirements.
8.

I have not yet applied for an 1-130 visa on my wife's behalf. I

understand that, if the Proclamation goes into effect, applying for the visa would be
pointless and my wife will be barred from joining me in the United States.
9.

I have and will continue to suffer emotional, psychological,

physical and financial injuries as a result of the Proclamation. I now realize that I may
never be joined by my wife in the United States or afforded the opportunity to create the
expanded family I envisioned. I have no other family in the United States, and the
possibility that my wife may never be able to join me in the United States has left me
distraught. Since the Proclamation, I have been anxious, depressed, stressed and feel
helpless.

JA 1260

Case 1:17-cv-02969-TDC Document 6-4 Filed 10/10/17 Page 3 of 4

10.

The Proclamation imperils my relationship with my wife, whom I

love and just married. My wife and I plan to have more children, and the Proclamation
will make it difficult or impossible to do so.
11.

The Proclamation will also have a significant financial impact on

me. If my wife is prevented from immigrating to the United States when she finishes her
degree, I will have to support her while she lives abroad. If she is delayed in immigrating
to the United States after she finishes her degree, we will suffer her lost wages during that
time.
12.

I am a practicing Muslim and feel marginalized and excluded by

the Proclamation on the basis of my religion. I believe that there are many other
countries that do not comply with the protocols that the President has used as a basis for
denying entry to citizens of the countries in the Proclamation, but it was my country of
ancestry, and that of my wife, that he singled out for the ban because there are many
Muslims who live there. I believe that the ban is based on bigotry and hatred, and that it
stigmatizes me for being Muslim.
13.

It is important for me to remain anonymous in this lawsuit. I am

aware of rising anti-Muslim sentiment in the United States, and I fear that the
Proclamation and the previous travel bans empower those that discriminate against
Muslims. I feel marginalized because other U.S. citizens are not being prevented from
having a relationship with their spouse in the way that I am.
14.

I am further concerned that revealing my identity will invite

harassment or targeting of me in the United States, or my wife in Portugal, on the basis of
our religion and national origin. I am also concerned that revealing my identity could

JA 1261

Case 1:17-cv-02969-TDC Document 6-4 Filed 10/10/17 Page 4 of 4

negatively affect the outcome of immigration proceedings for my wife and cause her visa
application to be denied in retaliation for this lawsuit.
I declare under penalty of perjury that the foregoing is true and correct. Executed
at Hackensack, New Jersey on October 6, 2017.

JA 1262

Case 1:17-cv-02969-TDC Document 6-5 Filed 10/10/17 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

EBLAL ZAKZOK, et al..
Plaintiffs,

Civil Action No.: 1:17-cv-02969-GLR

v.
DONALD TRUMP, in his official
capacity as President of the United
States, et al..
Defendants.

DECLARTION OF JANE DOE #2
L ^ ^ ^ ^ ^ ^ H known as Jane Doc #2 for the purposes of this case, to the best of
my knowledge, information and belief, hereby submit this declaration pursuant to 28
U.S.C. §1746 and declare as follows:
1.

I am a United States citizen and a resident of Maryland. I am also

2.

My parents are both Syrian. They moved to Kuwait in the 1980s,

Muslim.

before my birth. They remained there until the invasion of Kuwait by Iraq in 1990. At
the outset of the war, they returned to Syria to escape the violence. I was born in Syria
during that time.
3.

After the conclusion of the war, my father quickly returned to

Kuwait to begin rebuilding. He is an educator, and resumed his work as a teacher. My
father has not been back to Syria in the more than twenty-years since then.

JA 1263

Case 1:17-cv-02969-TDC Document 6-5 Filed 10/10/17 Page 2 of 5

4.

My mother took me, along with my brother, back to Kuwait in the

5.

I began my university studies in architecture in Syria. At that time,

mid-1990s.

I planned to complete my education in Syria and get married after I graduated.
6.

My plans changed in 2011, when the Syrian Civil War began.

Fearing for my safety, I returned to Kuwait briefly to stay with my parents.
7.

I then traveled to the United States to meet my fiance. We married

in 2011. I resumed my study of architecture and graduated with a Bachelor of Science
degree.
8.

My husband and I now live in Maryland with our three-year-old

9.

In June 2016, my mother, who was then in Kuwait, came to the

son.

United States visit and later decided to stay with my family and help us raise our child.
My mother is now a lawful permanent resident.
10.

When my mother came to the United States, my father remained in

Kuwait. He continued to work as a teacher, and he and my mother relied on his income.
My father has visited us in the United States, and has met his grandson, but his visits
have been brief.
11.

My husband and I are now expecting our second child. Financial

circumstances will now permit my father to join us in the United States. He hopes to
spend time with his grandchildren and to help raise them.

JA 1264

Case 1:17-cv-02969-TDC Document 6-5 Filed 10/10/17 Page 3 of 5

12.

Earlier this year, I submitted an 1-130 Petition on behalf of my

father. The petition was approved, and my father has begun his visa application. He has
not yet been interviewed.
13.

I understand that if the Proclamation goes into effect, my father

would be barred from coming to the United States indefinitely.
14.

It is very important to me and my family that my father be able to

join us in the United States. I want my children to know both of their grandparents, and
to learn from them. My father would speak to my children in Arabic, teaching them both
the language and our culture in a way that my husband and I cannot. It is very important
to us that our children be bilingual, understand their culture and history, and have a close,
personal relationship with their grandparents.
15.

My son and my father speak with each other using video

conferencing software, but these interactions cannot replace the experience of being
together face-to-face.
16.

My husband and I are both very involved in our community. We

are vocal members of the Syrian American Council, which advocates for freedom for the
Syrian people.
17.

We are also both fully involved with a local child-centered school

for children of ages five and younger. We teach at the school and do administrative work
to facilitate its operation. Our young students learn about art, culture, and diversity. My
mother has also become involved with the school since her arrival. 1 hope that my father
will be able to join us and contribute to the school as well.

JA 1265

Case 1:17-cv-02969-TDC Document 6-5 Filed 10/10/17 Page 4 of 5

18.

My work with children has reinforced my belief in the importance

of family. Children benefit emotionally and psychologically from being with their
family, and it is very damaging if they are disconnected from them.
19.

I also fear for my father's safety if he is not able to come to the

United States. My father's immigration status in Kuwait depends on his continued
employment. As he approaches retirement, there is a risk that he will no longer be able to
stay in that country.
20.

If my father has to leave Kuwait and cannot come to the United

States, the only place he could go would be Syria.
21.

Because of my husband's and my political involvement with the

Syrian American Council, I believe that my father would be at grave risk if he were
forced to return to Syria. I fear that he could be detained, tortured, or even killed.
22.

I have now lived in the United States for approximately six years.

The President's Proclamation, and the Executive Orders that preceded it, make me feel
that I am discriminated against, despite the fact that I am now a citizen.
23.

I believe that the Muslim ban is unconstitutional and unfair. It will

hurt a lot of people and separate a lot of families. The Constitution is supposed to protect
people, and to protect minorities. The Proclamation would make it so that my family
could not be together. It would hurt Americans—me, my husband, my son, and my
unborn child. This is not what the Constitution is about.

JA 1266

Case 1:17-cv-02969-TDC Document 6-5 Filed 10/10/17 Page 5 of 5

24.

I have requested to remain anonymous in this lawsuit because I am

afraid that my participation in this lawsuit might harm my father's visa application.
I declare under penalty of perjury that the foregoing is true and correct. Executed
axCcw^ftb/'^

, Maryland on October 3 ,2017.

JA 1267

Case 1:17-cv-02969-TDC Document 6-6 Filed 10/10/17 Page 1 of 2

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

EBLAL ZAKZOK, et al,
Plaintiffs,

Civil Action No.: 1:17-cv-02969-GLR

v.
DONALD TRUMP, in his official capacity
as President of the United States, et a!.,
Defendants.

^ ^ D E C ^ R T I O N OF JANE DOE #3
I, | H H | | ^ | known as Jane Doe #3 for the purposes of this case,
to the best of myToiowieageHMonnation and belief, hereby submit this declaration
pursuant to 28 U.S.C. §1746 and declare as follows:
1.1 am a United States citizen. I was bom in Somalia and am Muslim. I
came to the United States in 2006 as a refugee fleeing the horrific, war-torn conditions in
Somalia. I obtained my U.S. citizenship in 2012.
2.1 live and work in Minnesota, where I am a health care assistant at a
hospital. All of my family lives in Minnesota.
3. In April 2016,1 became engaged to be married. My fiance is from
Somalia and currently lives in Malaysia, where he has lived since 2008 and is obtaining a
Master's Degree in Finance. He has a student visa to study in Malaysia, but is scheduled
to graduate this month (October 2017), after which time he will no longer be able to
remain in Malaysia on his student visa.
4. My fiance and 1 have planned that he will come to Minnesota after
finishing his Master's Degree and that we will marry as soon as he arrives in the United
States, and start a family. MyfiancSalso plans to get a job using his Master's Degree; his
skill, labor, and finances will help us to build a family. Being separated from my fianc£
has been very difficult and has put a strain on our relationship. I never want us to be
separated again.
5. In December 2016,1 filed an I-129F petition with the United States
Citizen and Immigration Services (USCIS) for my fianc^ to come to the United States.
The USCIS approved the I-129F petition in March 2017. After the petition was
approved, my fiance applied for a K-l visa with the U.S. State Department. He was
interviewed by a consular official in Malaysia and has provided the government with all
of the information it has requested. However, the visa has not yet been granted.
6.1 understand that if President Trump's Proclamation goes into effect, my
fiance will be prohibited from obtaining a visa, even though he has not been to Somalia
for almost a decade.
7. Since the Proclamation, I have felt very upset and hopeless. I also feel
nervous and anxious when interacting with other people.
8.1 am afraid that I will never be able to marry and build a life and family
with the person I love. The uncertainty of not knowing whether my fianc£ will ever be
able to come to the United States has affected my relationship with him and given me

JA 1268

Case 1:17-cv-02969-TDCalso affected my physical health. I am diabetic, and when 2
nightmares. The situation has Document 6-6 Filed 10/10/17 Page 2 of
there is a lot of stress in my life, it is difficult to control my blood sugar levels.
9.1 believe that the Proclamation is motivated by a desire to stigmatize
Muslims and treats me like a second class citizen. I am an American citizen — I came to
the United States legally and passed the citizenship test — but the Proclamation denies
Muslims our rights and treats us differently in our own country. I personally feel
stigmatized by the Proclamation.
10.1 have noticed people treating me differently since the Proclamation
was announced. When people on social media learn that I am from Somalia, they
respond with hurtful messages and ask if I am in the United States legally. 1 am afraid
that when I travel in the future, I will be pulled aside for additional screening and
questioning because my passport states that I was bom in Somalia. I am afraid that I will
be isolated and separated from my fellow American citizens.
11. It is important to me to remain anonymous in this lawsuit I am afraid
that if I reveal my identity, my fiance's visa will be jeopardized because of my
participation in this lawsuit.
12.1 am also afraid of the backlash that might result if I cannot proceed
anonymously. I have already faced a lot of backlash from people on social media just
because I am from Somalia. If my identity is revealed in a lawsuit against the
government, I am afraid there will be anti-Muslim retaliation against me.
I declare under penalty of perjuiy that the foregoing is tme and correct. Executed
at l^UVn^Vlld
_, Minnesota on October ^ , 2 0 1 7 .

JA 1269

Case 1:17-cv-02969-TDC Document 33-1 Filed 10/14/17 Page 1 of 4

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

EBLAL ZAKZOK, et al.,
Plainri/Ji,

Civil Action No. :

| :17 -cv -02969-TDC

DONALD TRUMP, in his official
capacity as President of the United
States, et al.,

De/bndants.

DECLARATION OF STEVEN C. HERZOG
I, Steven C.Herzog, to the best of my knowledge. information and belief, hereby submit this
declaration pursuant to 28 U,S.C. $1746 and declare as follows:

1.

I am Counsel with the law firm of Paul, Weiss, Rifkind, Wharton &

Garrison LLP, counsel for Plaintiffs in the above-captioned action.

2.

A true and correct copy of the September 13,2017 New York Times

article by Ron Nixon entitled "Trump Adntinistration Punishes Countries that Refuse to Take
Back Deported Citizens," is attached hereto as Exhibit

L

The article can also be found at

https://www.nytimes.co rn/2017109113/us/politics/visa-sanctions-criminal-convicts.html.

3.

A true and correct copy of the May 16,2017 Washington Times article by

Stephen Dinan entitled "Trump Presses More Countries Take Back U.S. Deportees in

Immigration Success," is attached hereto as Exhibit 2. The article can also be found at
http://www.washingtontimes.com/news/201

7 lmay

l16lcountries-refusing-us-deportees-cut-from-

20-to-121.

JA 1270

Case 1:17-cv-02969-TDC Document 33-1 Filed 10/14/17 Page 2 of 4

4.

A true and correct copy of the October 9,2017 CATO Institute article by

David Bier entitled"Travel Ban is Based on Executive llhim, Not Objective Criteria," ts
attached hereto as Exhibit

3. The article can also be found at https://www.cato.org/blog/travel-

ban-based-executive-whim-not-obj ective-criteria.

5.

A true and correct copy of the International Civil Aviation Organization

("ICAO") webpage entitled "ICAO PKD Participants, " is attached hereto as Exhibit 4. The
webpage can also be found at https://icao.int/Security/FAL/PKD/Pages/ICAO-

PKDParticipants. aspx.

6.

A true and correct copy of the INTERPOL webpage entitled "Border

Management," is attached hereto as Exhibit

5. The webpage can also

be found at

https://www.interpol.int/INTERPOL-expertise/Border-management/SLTD-Database.
7

.

A true and correct copy of the September 2l ,2017 NPR article by Scott

Neuman entitled "Why is Chad on Trump's' Travel Ban Lisl?" is attached hereto as Exhibit 6.
The article can also be found at http://www.npr.org/sections/thetwoway

12017 I 09

l2l

I

5 539 67 424 I why

8.

-is-chad-on-trumps-travel-ban-l

i

st.

A true and correct copy of the 2017 Brennan Center for Justice report by

Harsha Panduranga,Faiza Patel,

& Michael W. Price entitled "Exlreme Vetting &

The Muslim

Ban," is attached hereto as Exhibit 7. The report can also be found at
https://www.brennancenter.orglsites/default/files/publications/extreme-vetting-full-10.2.pdf.

9.

A true and correct copy of the March 2009 American Civil Liberties

Union ("ACLU") report by Michael German and Michelle Richardson entitled "Reclaiming

Patriotism: A Call to Reconsider the Patriot Act," is attached hereto as Exhibit 8. The report
can also be found at https://www.aclu.org/files/pdfs/safefree/patriot_report_200903 10.pdf.

JA 1271

Case 1:17-cv-02969-TDC Document 33-1 Filed 10/14/17 Page 3 of 4

10.
"Guidelines

A true and correct copy of the U.S. Embassy Baghdad's webpage entitled

for Completing the DS I60 Non Immigranl

Visa

Application," is attached hereto

as

Exhibit 9. The webpage can also be found at
http://blogs.worldlearning.org/iyleplfilesl2}l2/03/DS- 160-NIV-lnstructions-IYLEP-WorldLearning.pdf.

11.
Jamaica entitled

A true and correct copy of the presentation by U.S. Embassy Kingston,

*DS-160 Nonimmigrant Visq Application Form, a Complete Step-by-Step

Instructional Guide," is attached hereto as Exhibit I 0. The presentation can also be found at
https://photos.state.gov/libraries/jamaica/231 771lPDFs/DS- I 60o/o20Instructions.pdf.

12.

A true and correct copy of the Department of Homeland Security Draft

Report entitled "Citizenship Likely an Unreliable Indicator of Teruorist Threat to the United
States," is attached hereto as Exhibit

1L

The report can also be found at

http://www.aila.org/infonet/dhs-report-citiz-unreliable-indicator-of-threat.

13.

A true and correct copy of the March 2017 Department of Homeland

Security intelligence assessment entitled "(U//FOUO) Most Foreign-born, US-based Violent
Extremists Radicalized after Entering Homeland; Opportunities

for Tailored

CVE Programs

Exist." is attached hereto as Exhibit 12. The assessment can also be found at
http://www.msnbc.com/rachel-maddow-show/trms-exclusive-dhs-document-undermines-trumpcase-travel-ban.

14.

A true and correct copy of the January 25,2017 CATO Institute article by

Alex Nowrasteh entitled"Little National Security BeneJit to Trump's Executive Order on
Immigratio,r,l," is attached hereto as Exhibit 13, The article can also be found at

h1ps://www.cato.org/blog/little-national-security-benefit-trumps-executive-order-immigration.

JA 1272

Case 1:17-cv-02969-TDC Document 33-1 Filed 10/14/17 Page 4 of 4

15.

A true and correct copy of the September 26,2017 Washington Post

article by David Bier entitled"The Basic Premise of Trump's Travel Ban is Wrong," is attached
hereto as

Exhibit 14. The article can also be found at

https://www,washinglonpost.com/opinions/the-basic-premise-of-trumps-travel-ban-iswrongl2}lT

I

09 I 26 I 7 cb8 6 8b0-td5 - 1 I e7 - 8cfe-d5b9 I

2fabc99 story. html.

I declare under penalty of perjury that the foregoing is true and correct. Executed at

Brooklyn, New York on October 14,2017.

Steven

C.Herzog

JA 1273

Case 1:17-cv-02969-TDC Document 33-2 Filed 10/14/17 Page 1 of 4

EXHIBIT 1

JA 1274

10/13/2017

Trump Administration Punishes Countries That Refuse to Take Back Deported Citizens - The New York Times

Case 1:17-cv-02969-TDC Document 33-2 Filed 10/14/17 Page 2 of 4

https://nyti.ms/2y07s3s

POLITICS

Trump Administration Punishes
Countries That Refuse to Take Back
Deported Citizens
By RON NIXON SEPT. 13, 2017

WASHINGTON — The Trump administration has imposed visa sanctions against
four countries that have refused to take back citizens who were convicted of crimes
in the United States and ordered deported, officials said on Wednesday.
The Department of Homeland Security said it notified the State Department
that the governments of Cambodia, Eritrea, Guinea and Sierra Leone had denied or
unreasonably delayed accepting the return of convicts. American diplomats in the
countries were ordered to impose visa restrictions, officials said in a statement, but
did not say what types of visas would be affected.
“International law obligates each country to accept the return of its nationals
ordered removed from the United States,” said Elaine Duke, the acting secretary of
Homeland Security. “Cambodia, Eritrea, Guinea, and Sierra Leone have failed in that
responsibility.”
Officials said the restrictions would remain in place until the countries
cooperate.

https://www.nytimes.com/2017/09/13/us/politics/visa-sanctions-criminal-convicts.html?_r=0

JA 1275

1/3

10/13/2017

Trump Administration Punishes Countries That Refuse to Take Back Deported Citizens - The New York Times

Case 1:17-cv-02969-TDC Document 33-2 Filed 10/14/17 Page 3 of 4

The issue has been a longstanding problem for officials at Immigration and
Customs Enforcement, the agency charged with deportations.
They say other nations will often refuse to issue travel documents or delay providing
them. In turn, agency officials said, they are forced to release criminals, including
those who have committed assaults and murders, in the United States. A 2001
Supreme Court ruling barred the government from detaining immigrants
indefinitely simply for lack of a country willing to take them.
The Obama administration was criticized for not using its authority to impose
visa sanctions against countries that refused to work with American officials to
deport immigrants with criminal convictions.
In one of the most recent examples, ICE officials had to release in 2012 a
Haitian immigrant, Jean Jacques, who had served time for attempted murder;
Haitian officials blocked his deportation because they said Mr. Jacques could not
prove that he was a citizen. In June 2015, he stabbed to death Casey Chadwick, a 25year-old woman from Norwich, Conn., and he was sentenced last year to 60 years in
prison in a case that received widespread attention.
President Trump, who campaigned on cracking down on illegal immigration,
had promised to punish countries that refused to take back their citizens and signed
an executive order in January directing the departments of State and Homeland
Security to suspend visas from countries that refused to take back their citizens.
Immigration officials said the sanctions send a message to the holdout nations.
“American citizens have been harmed because foreign governments refuse to
take back their citizens,” said Thomas Homan, the acting director of ICE. “These
sanctions will ensure that the problem these countries pose will get no worse as ICE
continues its work to remove dangerous criminals from the United States.”
Homeland Security officials said about 700 Eritrean nationals in the United
States are subject to final orders of removal, but Eritrean officials have refused to
cooperate. More than 1,900 Cambodian nationals in the United States are subject to
a final order of removal, and 1,412 have criminal convictions, officials said.

https://www.nytimes.com/2017/09/13/us/politics/visa-sanctions-criminal-convicts.html?_r=0

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Trump Administration Punishes Countries That Refuse to Take Back Deported Citizens - The New York Times

Case 1:17-cv-02969-TDC Document 33-2 Filed 10/14/17 Page 4 of 4

ICE officials say they have been forced to release about 2,137 Guinean and 831
Sierra Leone nationals, many with serious criminal convictions.
Get politics and Washington news updates via Facebook, Twitter and the Morning
Briefing newsletter.
A version of this article appears in print on September 14, 2017, on Page A16 of the New York edition
with the headline: U.S. Punishes Four Countries for Refusing to Take Back Criminals.

© 2017 The New York Times Company

https://www.nytimes.com/2017/09/13/us/politics/visa-sanctions-criminal-convicts.html?_r=0

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EXHIBIT 2

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Countries refusing U.S. deportees cut from 20 to 12 - Washington Times

Case 1:17-cv-02969-TDC Document 33-3 Filed 10/14/17 Page 2 of 4

Trump presses more countries take back U.S. deportees
in immigration success

President Trump has created a determined focus at the Homeland Security and State departments, which are both involved in speeding up deportations. (Associated Press/File) more >

By Stephen Dinan - The Washington Times - Tuesday, May 16, 2017

Between cajoling, threats and actual punishments, Homeland Security has managed to drastically cut the number of countries that
habitually refuse to take back immigrants whom the U.S. is trying to deport, o cials said Tuesday, notching an early immigration
success for President Trump.
The number of recalcitrant countries has dropped from 20 to 12 over the months since the presidential election, and some
longtime o enders — including Iraq and Somalia — have earned their way o the naughty list. The list of countries is the shortest
this decade.
U.S. Immigration and Customs Enforcement o cials couldn’t immediately say how many people have been deported because of
the changes, but Somalia has taken back 259 just seven months into the scal year. That is far more than the 198 it took back in all
of 2016 and the 17 it took in 2015.
Marlen Pineiro, assistant director for removal operations at ICE, said the e orts began under the Obama administration but that
Mr. Trump has created a determined focus at the Homeland Security and State departments, which are both involved in speeding
up deportations.
“The wind being at our wings is really driving us forward,” she said.
In many cases, that means criminals who otherwise would have been released onto the streets are now being sent to their home
countries.
Recalcitrant countries have long been among the serious issues that didn’t get much attention, though the consequences can be
extreme.
In one notorious case, Haiti refused to take back an illegal immigrant who had served time for attempted murder, and U.S. o cials
were forced to release him. He killed a young woman in Connecticut just months after his release.
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Another illegal immigrant, Thong Vang, was released from prison in 2014 after serving time for rape convictions, and his home
country of Laos refused to take him back. He was sent to a California prison last year and shot two guards, police said.
Armed with those kinds of cases, Mr. Trump made recalcitrant countries a part of his presidential campaign. He vowed to begin
putting pressure on countries to take back their deportees.
One of his rst executive orders instructed Homeland Security to take steps to pressure other countries, including potentially
stopping the issuance of visas to governments that refuse to cooperate.
Jessica Vaughan, policy studies director at the Center for Immigration Studies, said Mr. Trump and his Homeland Security
Department should get most of the credit for the changes for ramping up pressure beyond the diplomatic “demarche” letters that
the Obama administration used.
“On matters like this, the Trump administration is speaking not so softly and waving the sharp stick of visa sanctions,” she said.
“That’s a lot more e ective than apologetically delivered demarches.”
Still on the naughty list are Cuba and China — the two biggest o enders over the years. As of last year, the U.S. was trying to
deport some 35,000 Cubans with criminal records. The number of criminal migrants awaiting deportation to China stood at 1,900.
Even there, progress is being made, Ms. Piniero said. After the Obama administration’s diplomatic outreach, Cuba signed a deal to
begin taking back any new migrants — though it is still reluctant to eat into the backlog.
“They are accepting all the removals under the joint statement that have come in after Jan. 12,” Ms. Piniero said.
China remains a tougher situation, despite Mr. Trump’s e orts to advance relations with Chinese President Xi Jinping.
“We are working on China. We’re preparing our recommendations,” Ms. Piniero said.
Other countries still on the recalcitrant list are Burma, Cambodia, Eritrea, Guinea, Iran, Laos, Morocco, South Sudan and Vietnam.
Hong Kong was added into the list this month because its repatriation policy is controlled by China.
The countries that dropped o the list, in addition to Somalia and Iraq, were Afghanistan, Algeria, Burkina Faso, the Gambia, Mali,
Senegal and Sierra Leone.
Iraq earned its way o the list after it promised better cooperation in the wake of Mr. Trump’s rst extreme vetting executive
order.
U.S. law allows for penalties, including denying visas, against countries that refuse to take back their deportees.
That punishment has been used twice, and both times only on a limited basis. The Bush administration stopped issuing visas to
o cials from Guyana in 2001. Within months, the country had taken back 112 of the 113 Guyanans whom the U.S. was trying to
deport.
Late last year, after intense pressure from Congress, the Obama administration triggered the penalty for the Gambia, stopping
issuance of visas for government o cials and their families.
The Gambian Embassy said it quickly took steps to comply by issuing travel documents to the people ICE had requested and by
reviewing new cases.
“Our country respects the laws of the United States, and we are working closely with the U.S. authorities to take care of the
situation,” Hamba Manneh, a counselor at the embassy, told The Washington Times in October after the penalties were issued.
Thanks to that action, the Gambia has been taken o the recalcitrant list, though it is still one of 47 countries on the “at-risk” list.
The visa penalty on the Gambia hasn’t been lifted.
In the case of Somalia, the U.S. has deported its citizens who were in custody. Voice of America reported last month that some
4,000 other Somalis are still on the target list.
Most of them were released from custody over the years because of resistance by their home governments, and now the U.S.
must track them down to deport them.
Ms. Pineiro said ICE has moved to create a more formal process for identifying recalcitrant countries.
http://www.washingtontimes.com/news/2017/may/16/countries-refusing-us-deportees-cut-from-20-to-12/

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Countries refusing U.S. deportees cut from 20 to 12 - Washington Times

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In the past, she said, the list was based on a sense of the state of each country. Now, she said, o cials look at speci c metrics such
as how long it takes to issue travel documents, whether the country will conduct identity interviews to facilitate deportation and
whether countries have a favorable deportation-to-release ratio.

http://www.washingtontimes.com/news/2017/may/16/countries-refusing-us-deportees-cut-from-20-to-12/

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Case 1:17-cv-02969-TDC Document 33-4 Filed 10/14/17 Page 1 of 19

EXHIBIT 3

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Case 1:17-cv-02969-TDC Document 33-4 Filed 10/14/17 Page 2 of 19

YTREBIL TA OTAC
OCTOBER 9, 2017 2:07PM

airetirC evitcejbO toN ,mihW
evitucexE no desaB sI naB levarT
R E I B D I VA D

By

President Trump’s travel ban proclamation states that the Department of
Homeland Security (DHS) developed a global baseline for visa vetting that all
governments must meet before their nationals can travel to the United States.
The proclamation states that the president then applied DHS’s baseline to all
countries and then restricted travel to all those that failed them. This
explanation is untrue.
DHS created nine baseline criteria grouped into three categories (see the
Appendix for a detailed explanation of each one). Here they are:
Category 1: Identity management: 1) Use of electronic passports
embedded with data; 2) Reports lost and stolen passports; 3) Makes
available upon request identity-related information.
Category 2: National security information: 4) Makes available terrorist
and criminal information upon request; 5) Provides identity document
exemplars; 6) Allows U.S. government’s receipt of information about
passengers and crew traveling to the U.S.
Category 3: Risk indicators: 7) Is a known or potential terrorist safe

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haven; 8) Is a participant in the Visa Waiver Program that meets all of its

requirements; and 9) Regularly fails33-4 Filed its nationals subject19 final
Case 1:17-cv-02969-TDC Document to receive 10/14/17 Page 3 of to
orders of removal from the U.S.
The proclamation states that the president then applied the DHS baseline to
every country and banned all those—and only those—that fail its criteria. This
never happened.
Despite statements to the contrary, the proclamation admits that the president
did not ban all countries that failed the requirements and did ban others that
met them. It applies higher-than-the-baseline criteria to the countries on the list,
but never applies those more stringent criteria to other countries that remained
off the list. The president’s proclamation also applies mitigating factors to avoid
banning every failing country but then didn’t apply those new mitigating
factors to the other banned countries. Even when applying all of these
additional criteria, no set of failed or met factors can explain the proclamation’s
choices of which countries to ban. The travel ban simply lacks an objective
grounding.
The presidential proclamation did not apply the DHS baseline to every
country.
The proclamation states that Iraq failed the baseline, but it did not ban Iraqis. It
is the only country that it claims to have failed yet not banned. By itself, this
proves that the baseline is not automatically applied, but we know that many
other countries also failed.
At least 86 countries did not issue electronic passports in 2017, and many others
had nationals still using older non-electronic passports. At least 16 countries
never report lost or stolen passports and, as of mid-2014, about 150, including
large countries China, India, and Indonesia, rarely did. In May 2017, 12
countries regularly refused to accept U.S. deportees—only one of which was a
travel ban country—and on September 13, 2017, just before the travel ban came
out, the U.S. sanctioned four non-travel ban countries for this reason. None of
those four were travel ban countries. In 2017, 153 countries did not participate
in the Visa Waiver Program, and as of December 2015, a third of participating
countries did not meet its requirements. In 2016, the State Department
identified 13 terrorist safe havens—only three made the list.

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The proclamation tells us that some countries decided to sharePage 4 of 19 or
Case 1:17-cv-02969-TDC Document 33-4 Filed 10/14/17 information
passport samples, but it makes no mention of countries complying with the
above criteria. It tells us that DHS initially identified 16 failing countries, but
then settled on nine and exempted Iraq, implying that seven countries moved
from failing to passing. Even if all of these seven countries initially failed each
criterion above and then corrected the failure, 75 non-travel ban countries
would still not be issuing e-passports; six would still not be reporting passports;
and four would still not be accepting deportees. The number of terrorist safe
havens appears to have remained the same.
Either the proclamation misrepresents how the baseline applies to each country
(i.e. countries don’t need to meet all of its requirements) or the proclamation
misrepresents how the president applied the baseline (i.e. he didn’t apply it to
each country).
The proclamation did not apply the DHS baseline to travel ban countries.
Not only do many of these countries meet most of the baseline requirements,
the proclamation did not actually apply the baseline to them. The
administration applied something else entirely. Here are a few examples:
Somalia issues e-passports but fails this requirement because “the United
States and many other countries do not recognize it.” This is a much
higher standard than the baseline.
Libya and Venezuela do not “regularly refuse to receive their nationals”
whom the United States deports—which is why Immigration and Customs
Enforcement does not list either as an offender in this regard—but we are
told that they are “not fully cooperative with respect to receiving their
nationals,” and so they are banned. Here, the baseline allows some
refusals, but when the proclamation then applies this criterion, it requires
total or full cooperation.
Chad is not a “terrorist safe haven,” according to the State Department,
and actively partners with the United States against terrorists, but
apparently still fails this requirement because terrorists “are active within
Chad or in the surrounding region.” Under the DHS criteria, a country

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must be a terrorist safe haven or potential safe haven. But according to

the proclamation, the mere presence of “active” terrorists nearby can ban
Case 1:17-cv-02969-TDC Document 33-4 Filed 10/14/17 Page 5 of 19
nationals from a nation even if the terrorists are outside of the country.
This is moving the goalposts to an entirely different field.
Somalia “satisfies the information-sharing requirements of the baseline”
but its “lack of territorial control… compromises Somalia’s ability… to
share.” In other words, Somalia shares what it can, but due to its
limitation, it cannot collect the information that the United States wants.
Thus, this is about capacity, not cooperation, in terrorist surveillance. This
higher-than-baseline standard also appears to apply to Libya which “faces
challenges” to sharing. Again, the ability to collect is substantially
different than the baseline requirement to share upon request.
Iran is not a safe haven for terrorists, but the proclamation justifies its
inclusion by stating that it is a State Sponsor of Terrorism. This is a very
different standard than a “terrorist safe haven,” which requires
“ungoverned, under-governed, or ill‑governed physical areas where
terrorists are able to organize, plan, raise funds, communicate, recruit,
train, transit, and operate in relative security.” Iran does not fit this
description, yet the proclamation still found it to have failed the baseline.
The point here is that the proclamation did not actually apply the DHS
standards. It applied wholly different requirements that are not part of the
baseline.
The proclamation did not apply its own criteria to every non-travel ban
country.
Applying the proclamation’s additional criteria to every country adds no more
clarity. Indeed, if these more stringent requirements become part of the
baseline then more countries would fail and be banned. Thus, the selection of
these eight countries becomes even more arbitrary than it already is. Another
125 non-travel ban countries don’t have e-passports or have e-passports that
many countries don’t recognize. Like Syria, Sudan is also a State Sponsor of
Terrorism. Active terrorists “in the surrounding region” would add at least the
31 non-travel ban countries where Foreign Terrorist Organizations are based
and probably a half dozen more. The same must also be true for the higherthan-baseline deportee acceptance requirement. 

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Yet even if we apply these higher-than-baseline Filed 10/14/17 Pageof the travel
Case 1:17-cv-02969-TDC Document 33-4 criteria, still not all 6 of 19
ban countries fail them. Iran issues an internationally recognized electronic
passport. North Korea has no terrorist groups in its vicinity. 
The proclamation did not apply his own criteria to every travel ban
country.
The proclamation explains that it did apply the baseline to Iraq because Iraq
meets four mitigating factors and that it did not ban any Venezuelans, except
for a few bureaucrats, because they meet a fifth mitigating factor. Yet meeting
any or even all of these mitigating factors does not mean that the country is off
the list. Here are the mitigating factors:
One mitigating factor is having a “cooperative relationship” with the
United States. This would apply to Chad, Libya, Yemen, and Somalia. The
first three the proclamation itself describes as “counterterrorism
partners,” and Somalia is a member of the U.S. Global Coalition to Defeat
ISIS.
Another mitigating factor is having a “commitment to combating” ISIS.
This factor would apply to six of the travel ban countries, all of the
counterterrorism partners listed above as well as Syria and Iran, both of
whom are committing significant resources to defeating ISIS in Syria and
Iraq.
Another mitigating factor is the presence of U.S. troops. This would apply
at least to Chad, Syria, Yemen, Libya, and Somalia, and possibly even
Venezuela.
Another mitigating factor is the presence of U.S. diplomats. This would
also apply to Chad and Venezuela.
Finally, the existence of “alternative sources of information” about
Venezuelan travelers mitigates against their governments’ failure to meet
the baseline. But this mitigating factor would also apply to some travelers
from every other country. The fact that sources of information exist about
some travelers and immigrants from these countries is precisely why
there was not already a ban in place. Travelers face the burden of proof in

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the process. If someone cannot prove their eligibility, the Page 7 of 19
Case 1:17-cv-02969-TDC Document 33-4 Filed 10/14/17 government
simply denies their application.
Every travel ban country meets one of the mitigating factors. Chad meets all of
them. Libya, Yemen, and Somalia meet four of the five, every factor except the
presence of U.S. diplomats. Syria meets three of the conditions. Iran and
Venezuela meet two of them. Thus, we have no idea how these mitigating
factors matter, when they are applied, or what they can compensate for.
No combination of factors explains the proclamation’s travel ban
selections.
Not all travel ban countries fail all of the baseline criteria, and not all of the
other non-banned countries meet the baseline criteria. The next most logical
explanation is that some combination of factors explains the list. The
proclamation hints at this possibility, asserting that these eight countries “have
‘inadequate’ identity-management protocols, information-sharing practices,
and risk factors.” At a minimum, this means that each country on the list has
failed at least one criterion in each of the three baseline categories. Yet once
again, the proclamation then admits that this is not true.
It states that DHS “determined that Somalia satisfies the information-sharing
requirements of the baseline and states that Venezuela met “the baseline
standards identified,” except for those relating to public-safety and terrorismrelated information sharing and risk criteria. In addition, Iran appears to meet
the identity management requirements. It uses an electronic passport that is
recognized by other countries, and according to INTERPOL, Iran’s cooperation
with lost or stolen passports is “quite strong,” and that it is “able to get
information from Iran” on criminals. North Korea and Chad don’t appear to
meet any of the risk criteria (except for complying with the rules of the Visa
Waiver Program, which at least according to the State Department only applies
to VWP countries).
In the table below, I mark failed criteria with Ns and those that the countries
meet with Ys. Each country has two columns, the left (P) for what’s in the
proclamation itself, and the right (R) for what I was able to identify

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independently or where I have no reason to doubt the proclamation (see the

Appendix for a full explanation). Question marks signify that either the 19
Case 1:17-cv-02969-TDC Document 33-4 Filed 10/14/17 Page 8 of
proclamation is unclear or, in the case of the (R) column, the answer is
unknown or uncertain. The blanks indicate that the proclamation is silent on
the issue. See the annex for an explanation of each factor. “Total fails” in the
last column refer to all countries in the world failing that criterion.
Other than not complying with the requirements of the Visa Waiver Program—
which appears to only apply to VWP countries—there is no single factor that all
eight countries fail. That’s true even if you focus only the statements that the
proclamation itself makes or add in the higher-than-baseline requirements.
Even if we combine all the terrorism requirements into one criterion, not all the
countries on the list would fit that requirement. Introducing the mitigating
factors only muddies the picture even further, as there is also no consistent
application of those.
Table: Factors for Each Country Mentioned in the Travel Ban Proclamation

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Case 1:17-cv-02969-TDC Document 33-4 Filed 10/14/17 Page 9 of 19

Sources: International Civil Aviation Organization; White House; U.S. Department
of State; Immigration and Customs Enforcement; Department of Defense; U.S.
Department of State; Customs and Border Protection; See Appendix
Conclusion

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For countries on the list, and for any country wishing to remain off theof 19 it is
Case 1:17-cv-02969-TDC Document 33-4 Filed 10/14/17 Page 10 list,
vitally important that they understand which factors led to their inclusion or
exclusion. If the United States is acting in good faith—seeking to change
behavior as opposed to looking for an excuse to ban people—its criteria should
be clearly explained and understood. The Iran nuclear deal, for example, has
very precise requirements for Iran to avoid sanctions, down to the exact
percentage of purity for its enriched uranium. This is very far from the case
here.
No consistent combination of factors or mitigating factors triggers the ban. Not
every country needs to meet the baseline requirements, and while certain
mitigating factors can protect a country from the ban, meeting some or all of
them doesn’t always result in exclusion. The travel ban simply lacks an
objective standard of application. 
APPENDIX: TRAVEL BAN CRITERIA
Nine Primary Baseline Requirements
Category 1: “Identity management information”/“Integrity of documents”
1) “Use of electronic passports embedded with data”: The International Civil
Aviation Organization is a United Nations agency responsible for tracking travel
documents. According to the ICAO, 86 countries fail to issue an electronic
passport embedded with data. Of the travel ban countries, Venezuela, Iran,
Libya, and Somalia do issue electronic passports. This criterion lacks even a
vague quantification aspect, so we cannot know what share of passports must
possess these capabilities. For example, certain nationals of the United Kingdom
still rely on non-electronic passports, despite the country now issuing such
passports.
2) “Reports lost and stolen passports to the appropriate entities”: This
criterion lacks a quantification aspect—what share of lost or stolen passports
must be reported and how regularly must the country report? According to
INTERPOL on whose database the U.S. government relies on for this
information, 174 countries share this information, meaning that 16 INTERPOL
member states and at least one other do not. (The U.S. admits travelers from 191

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countries.)1:17-cv-02969-TDC countries, as of mid-2014, only aPage 11 of 19
Case Of the 174 sharing Document 33-4 Filed 10/14/17 small minority
were regularly contributing to the database, and the most populous countries in
the world—China, India, and Indonesia, contribute few. In 2014, at least India
did not participate at all.
In December 2015, DHS reported that all 38 Visa Waiver Program countries
shared lost or stolen passport information. INTERPOL itself doesn’t report on
individual member participation in a systematic way, but it did release data in
2011 to researchers, showing that 101 countries, including Syria, were using
INTERPOL’s passport screening system in some fashion. In 2014, INTERPOL
described Iran’s reporting compliance as “very strong.” Somalia is said to have
met all information sharing requirements, and Venezuela is described as
lacking only one of the information sharing requirements. Syria also appears to
report lost or stolen passports. Libya also uses INTERPOL’s Stolen and Lost
Travel Document database.
3) “Makes available upon request identity-related information not included
in its passports”: There doesn’t appear to be any systematic reporting on this
requirement, and again, there’s not even vague quantification aspect to this
criterion. However, the order indicates that Somalia met all information
sharing requirements and that Venezuela only failed one information sharing
requirement. I assumed that the counterterrorism partner countries—Yemen,
Libya, Chad—also share this information as Somalia does. Chad and Yemen
utilize the U.S. Personal Identification Secure Comparison and Evaluation
System (PISCES), which is a border control screening system that the U.S.
created to aid information sharing between itself and countries with porous
borders. At least 32 countries use PISCES.
Category 2: “National security and public-safety information”
4) “Makes available, directly or indirectly, known or suspected terrorist
and criminal-history information upon request”: This requirement focuses
on the willingness of a government to share information with the United States
unlike secondary baseline criterion #2 below, which requires an ability to
collect. We know this because Somalia is said to have met this requirement
despite being said to be unable to share as much information as the U.S. would

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like. As far1:17-cv-02969-TDC information goes, all 192 INTERPOL member
Case as criminal history Document 33-4 Filed 10/14/17 Page 12 of 19
countries, including all travel ban countries except North Korea, share
information regarding felons via “red notices” to INTERPOL that all members,
including the United States, receive. This has been the case for all countries
except Somalia since 2007. All 38 Visa Waiver Program countries have entered
into agreements to share information directly with the U.S. Terrorist Screening
Center, though more than a third of them were not doing so as of December
2015, according to DHS. DHS officials told the GAO, however, that some
countries report this information through other means.
Other countries also share this information, but there does not appear to be
systematic reporting on it. According to section 1(f) the proclamation, 11
countries agreed to share this information in response to U.S. requests. Libya
does contribute to INTERPOL’s databases for criminals, terrorists, and war
criminals. Somalia does as well. The proclamation asserts that six travel ban
countries—Chad, Iran, Syria, Yemen, North Korea, and Venezuela—fail this
requirement.
We know, however, that Yemen and Chad are misclassified because, as
counterterrorism partners, they do share when they can, and both countries
utilize the U.S. Personal Identification Secure Comparison and Evaluation
System (PISCES), which the U.S. has funded and introduced specifically for
watch-listing purposes. At least 32 countries use PISCES. According to
INTERPOL, only 52 countries last year reported individuals to its foreign
terrorist fighter database. The State Department’s embassy cable about the
proclamation asks specifically about participation in this.
It’s also unclear whether Iran, Syria, and Venezuela never share this
information. The U.S.-backed Iraqi government is coordinating with both Iran
and Syria against ISIS, and Iran is helpful in sharing information about its
passport abusers. But again, there’s not even vague quantification aspect to this
criterion: how much information or how often.
5) “Provides passport and national-identity document exemplars”: The
Department of Homeland Security’s Immigration and Customs Enforcement
Forensic Laboratory accepts and analyzes foreign passport samples to identify

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fraudulent1:17-cv-02969-TDC Document 33-4 inspectors to them. Other than
Case documents and alert immigration Filed 10/14/17 Page 13 of 19
Visa Waiver Program countries, all of which do so, there does not appear to be
systematic reporting on this criterion. According to section 1(f) the
proclamation, 29 countries provided samples in response to the U.S. request.
The proclamation itself does not describe any travel ban country as failing this
requirement, except for perhaps North Korea.
6) “Impedes the United States Government’s receipt of information about
passengers and crew traveling to the United States”: DHS vets the biographic
information (19 data fields) of travelers to the United States using its Advance
Passenger Information and Passenger Name Records system. Airlines, not
governments, must provide this information to fly to the United States. Foreign
governments may “impede” the delivery of this information through privacy
laws or other measures that bar its transfer. The European Union entered into
protracting negotiations with the United States on this point. However,
according to DHS, by mid-2013, compliance was “near 100 percent.”
Category 3: “National security and public-safety risk assessment”/”National
security risk indicators”
7) “Is a known or potential terrorist safe haven”: The idea of a “potential”
terrorist safe haven is not a phrase that appears in any of the State
Department’s Country Reports on Terrorism from which the idea of a “safe
haven” originates. I considered any country a “potential safe haven” if the State
Department at any time in the last decade has considered it a safe haven. In
2016, there were 13 “safe havens”: 1) Somalia, 2) Egypt, 3) Iraq, 4) Indonesia, 5)
Malaysia, 6) the Philippines, 7) Lebanon, 8) Libya, 9) Yemen, 10) Afghanistan, 11)
Pakistan, 12) Colombia, and 13) Venezuela. Additionally, Mali was a safe haven
in 2015. No other country was removed from the list in the last five years. The
State Sponsors of Terrorism are automatically not included on this list, and it
appears that the reasons for Iraq’s inclusion—the existence of the Islamic State
—would apply to Syria. The other two state sponsors, Sudan and Iran, do not
meet the definition of a terrorist safe haven.

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8) “IsCase 1:17-cv-02969-TDC DocumentProgram that meets all of 14 of 19
a participant in the Visa Waiver 33-4 Filed 10/14/17 Page its
requirements”: The United States must invite a country to participate in the
Visa Waiver Program, which allows for visa-free travel to the United States.
Only 38 countries out of 191 fulfill this requirement. As of December 2015, 13 or
14 countries didn’t fulfill the requirements of the program. The State
Department cable implies that this requirement actually only applies to Visa
Waiver Program countries, which would make more sense, but the
proclamation itself doesn’t say that and, given how much else has changed, we
can’t know for sure that it means that.
9) “Regularly fails to receive its nationals subject to final orders of removal
from the United States”: According to Immigration and Customs Enforcement
(ICE), 12 countries failed this requirement as of May 2017: Cuba, Burma,
Cambodia, Eritrea, Guinea, Iran, Laos, Morocco, South Sudan, Vietnam, China,
and Hong Kong. In September 2017, four countries—Eritrea, Cambodia, Guinea,
and Sierra Leone—were sanctioned for it. In May, Sierra Leone was not on the
list but was sanctioned in September. Iran is on the May 2017 list. It is the only
travel ban country listed as uncooperative by ICE.
Six Higher-Than-Baseline Requirements
Category 1: Identity systems
1) “Issues an electronic passport the United States, and many other
countries, recognize”: The proclamation states that Somalia fails this higherthan-baseline requirement. It is unclear how many countries would also fail
this requirement. However, according to the ICAO, only 58 countries
participated the ICAO’s Public Key Directory as of 2017, which “ensures that
border authorities around the world can validate ePassports.” The State
Department’s cable asks about the country’s use of this directory. Of the travel
ban countries, only Iran is a participant.
Category 2: Security sharing
2) “Compromised ability… to share information about its nationals who
pose criminal or terrorist risks”: The proclamation tells us that Somalia and
Libya fail this higher-than-baseline requirement. As distinct from criterion #4

JA 1295

above, it focuses on the inability to collect and then share information,of 19the
Case 1:17-cv-02969-TDC Document 33-4 Filed 10/14/17 Page 15 not
willingness to share it. It is too vague to assess in any particularly rigorous way.
Of the travel ban countries, Libya, Chad, and Yemen are counterterrorism
partners. This implies that although the proclamation describes Chad and
Yemen as failing criterion #4 above, they actually fail this higher-than-baseline
requirement.
Category 3: Other risks
3) “Designated as a state sponsor of terrorism”: Iran and Syria are said to
have failed this unlisted requirement. Sudan is also a State Sponsor of
Terrorism, but after being on prior versions, this new version of the travel ban
removed it.
4) “Terrorist groups are active within [the country] or in the surrounding
region”: Chad is said to have failed this higher-than-baseline requirement. This
requirement is much broader than baseline criterion #7, regarding terrorist
safe havens. This criterion appears to have been added by the president or
White House officials because it does not appear in the State Department cable
instructing U.S. embassies to request certain information from foreign
governments related to the proclamation. It brings in activities of terrorists
outside of the borders of the country. The terrorist groups listed as threats from
Chad are neither based in Chad nor composed of Chadians.
According to the U.S. Department of State, terrorist groups in 2016 based their
operations in 37 countries. Here they are in order of most groups to least
groups: Pakistan, Afghanistan, Palestine, Lebanon, Syria, Libya, India, Iraq,
Israel, Mali, Niger, Algeria, Burkina Faso, Colombia, Egypt, Indonesia, Iran,
Nigeria, Philippines, Tunisia, Turkey, Bangladesh, Cameroon, Cote D’Ivoire,
France, Greece, Ireland, Japan, Nepal, Peru, Russia, Somalia, Spain, Sri Lanka,
United Kingdom, Venezuela, and Yemen. The first 22 countries have at least
two terrorist organizations operating in their country. In addition, it mentions
groups that sometimes threaten, cross into, operate on the borders of, or have in
the past made attacks, or host individual leaders in Malaysia, Ivory Coast,
Mauritania, Brazil, Ecuador, Qatar, and “European countries.” Of the travel ban
countries, only North Korea is not on this list.

JA 1296

5) “Not fully cooperative with respect to receiving its nationals subject to
Case 1:17-cv-02969-TDC Document 33-4 Filed 10/14/17 Page 16 of 19
final orders of removal from the United States”: Libya and Venezuela are
said to have failed this higher-than-baseline requirement, which is more
stringent than baseline criterion number #9 that stipulates that must
“regularly” fail to respect removal orders, while this criterion requires “full” or
complete compliance. The government does not report how many countries are
not fully cooperative with deportees, but back in May 2016, DHS listed 23
countries as uncooperative—perhaps some of the 11 that dropped from the list
by May 2017 are now not “fully” cooperative. It’s noteworthy that Sierra Leon
was on the list in May 2016, off in May 2017, and then separately sanctioned in
September 2017. The same was true for Libya, but Venezuela has not appeared
on any of the lists. In any case, this more stringent category would sweep in
several more non-travel ban countries.
6) “Lack of territorial control”: This unlisted criterion justifies the inclusion of
Somalia. It is duplicative, however, because Somalia is a terrorist safe haven
and part of the definition of a safe haven is ungoverned or under-governed
areas. For this reason, this would also apply to all 12 of the known or potential
terrorist safe havens listed in criterion #4. There are, however, several other
areas in various countries around the world that are not under the control of
the central government. However, for our purposes here, I will assume that any
country that is not a potential or known safe haven has territorial control.
BONUS #7) “Fails to satisfy at least one key risk criterion”: The proclamation
repeats the phrase that six countries fail “at least one key risk criterion” without
specifying which one. “Risk criterion” relates only to the category #3 national
security risk factors. It does not use this phrase for Somalia and North Korea,
but it appears that they would each fail two of these criteria. It becomes even
more difficult to figure out which criteria the other governments failed given
the vague phrase “at least one”—meaning that it could be more than one—and
the fact that we know that the order is not applying the risk factors as actually
detailed in section 1(c).
The proclamation throws in additional uncertainty by saying that the security
risks “include” the three listed, implying that there could be more. But the fact

JA 1297

that the proclamation lists these three risks implies that it considers them to be

the “key” risks. It would be very strange—but not out of character for this
Case 1:17-cv-02969-TDC Document 33-4 Filed 10/14/17 Page 17 of 19
strange proclamation—to list non-key risks and not key ones. In any case, the
State Department cable to embassies requesting information about each
country for this proclamation lists slightly different versions of these three as
the “three security risk indicators,” so this does appear to be comprehensive list
(in the cable, the Visa Waiver Program requirement applies only to the Visa
Waiver Program countries).
If it is true that this criterion doesn’t apply to non-Visa Waiver Program
countries, then there are only two risk criteria that each country could fail. In
this case, Chad, Libya, and Venezuela don’t fail any risk criteria, even though
the proclamation claims that they do.
Five Mitigating Factors
1) “Commitment to combating the Islamic State of Iraq and Syria”: Section
1(g) of the proclamation explains that this factor mitigates the fact that Iraq
failed the baseline, keeping it out of the ban. This phrase would also apply to
Somalia and Chad, each of which are members of the U.S.-led Global Coalition to
Defeat ISIS, as well as Syria and Iran. Syrian government forces are the primary
opposition forces to ISIS in Syria, and according to the Pentagon, Iran is backing
almost 100,000 troops in Iraq.
2) “Close cooperative relationship”: This factor also is also said to have
mitigated the fact that Iraq failed the baseline. A total of 69 countries have
defense agreements with the United States, though some of these include
countries like Cuba and Venezuela. There are also 72 coalition partners in the
U.S.-led Global Coalition to defeat ISIS. The State Department describes a large
number of countries as counterterrorism partners. The United States certainly
has “cooperative relationships” with travel ban governments in Chad, Libya,
Yemen, and Somalia. The first three the order itself describe as
“counterterrorism partners,” and Somalia is a member of the U.S. Global
Coalition to Defeat ISIS as is Chad. Mitigating factor #3 further highlights the
cooperation between these four governments and the United States. The United
States does not have cooperative relationships with the other travel ban
governments: North Korea, Iran, Syria, or Venezuela.

JA 1298

3) “Presence of United States Document 33-4 Filed 10/14/17 Page 18 of 19
Case 1:17-cv-02969-TDC forces”: This factor also mitigates the fact that
Iraq failed the baseline. According to the Defense Department, the United States
has military personnel in 178 countries, including six travel ban countries:
Chad, Libya, Somalia, Venezuela, Syria, and Yemen. Only North Korea and Iran
have no U.S. troops. The Pentagon has underreported the true numbers of U.S.
troops in countries, and there are some 51,490 troops reported as occupying an
“unknown” location, so identifying the exact number of troops in any particular
country is difficult. But it lists 112 countries with double-digit personnel figures.
For the purposes of the table below, I considered only these 112 as having a U.S.
“military presence.” It also has military “bases” in 74 countries. These include
bases in Libya, Iraq, Chad, Yemen, and Somalia.
In Chad, the U.S. has held annual military “exercises” in Chad since 2005,
has conducted special operations in Chad for several years, and has a
drone base there. About 2,000 U.S. special forces and Chadian soldiers
conducted counterterrorism raids together in April 2017.
In Yemen, U.S. troops are on the ground fighting with the Yemeni
government against militants there, and in August, they engaged in a joint
operation against al Qaeda. U.S. soldiers were seriously wounded there in
May, and in January, one died. From 2009 to 2017, the U.S. has carried out
214 drone attacks in Yemen.
The U.S. has involved itself militarily in Somalia for decades. In Somalia,
U.S. forces have carried out 24 counterterrorism raids and 32 drone
strikes. In April 2017, the Trump administration sent “dozens” of new
soldiers there.
In Libya, U.S. forces were instrumental in the overthrow of Libyan
dictator Muammar Qaddafi in 2011. U.S. forces are still carrying air
strikes in the country and also carry out special operations on the ground.
President Trump is considering increasing the ground presence.
4) “United States diplomatic presence”: This factor also mitigates the fact that
Iraq failed the baseline. The United States also has a diplomatic presence in
Chad and in Venezuela. The United States maintains limited or no diplomatic

JA 1299

presence in Antigua and Barbuda; Dominica; Grenada; St. Kitts and 19 of 19
Case 1:17-cv-02969-TDC Document 33-4 Filed 10/14/17 Page Nevis; St.
Lucia; St. Vincent and the Grenadines; Guinea-Bissau; Bhutan; North Korea;
Iran; Yemen; Syria; Libya; Netherlands Antilles, Curaçao; and Belarus.
5) “Alternative sources for obtaining information to verify the citizenship
and identity”: Once again, there is absolutely no doubt that this factor applies
to all eight travel ban countries. As mentioned at the top, no one can receive a
visa to travel to the United States without proving their identity and eligibility,
so if no one from these countries could do so, there would already be a travel
ban. This is why the basic premise of the travel ban is wrong.
Topics: International Economics, Development & Immigration
Tags: Immigration; Travel Ban; Trump

This work by Cato Institute is licensed under a Creative Commons Attribution-NonCommercialShareAlike 3.0 Unported License.

G R O.O TA C M O R F D E T N I R P

JA 1300

Case 1:17-cv-02969-TDC Document 33-5 Filed 10/14/17 Page 1 of 4

EXHIBIT 4

JA 1301

ICAO / Security and Facilitation / Facilitation Programme / PKD / ICAO PKD Participants

Case 1:17-cv-02969-TDC Document 33-5 Filed 10/14/17 Page 2 of 4

stnapicitraP DKP OACI
State

stnapicitraP DKP fo tsiL

PKD Participant

Joining Date

Number
1

Australia (PKD Board Member)

19/03/2007

New Zealand (PKD Board Member)

19/03/2007

Singapore

19/03/2007

United Kingdom (PKD Board Member)

19/03/2007

Japan (PKD Board Member)

19/03/2007

Canada (PKD Board Member)

19/03/2007

United States of America (PKD Board Member)

02/11/2007

8

Germany

01/11/2007

9

Republic of Korea

28/03/2008

10

France

19/06/2008

People's Republic of China (PKD Board Member)

26/11/2008

Republic of Kazakhstan

19/12/2008

India

12/02/2009

Nigeria (PKD Board Member)

13/04/2009

Switzerland (PKD Board Member)

10/07/2009

2
3
4
5
6
7

11

12
13
14
15

JA 1302

16

Ukraine

30/10/2009

Latvia

28/06/2010

18

The Czech Republic

30/06/2010

19

Macao, China

28/09/2010

United Arab Emirates (PKD Board Member)

25/10/2010

21

Hong Kong, China

26/10/2010

22

Slovak Republic

23/11/2010

The Netherlands (PKD Board Member)

08/12/2010

24

Kingdom of Morocco

29/12/2010

25

Austria

31/12/2010

26

Hungary

15/02/2011

27

Norway

20/06/2011

28

Bulgaria

12/10/2011

29

Luxembourg (PKD Board Member)

30/11/2011

Sweden (PKD Board Member)

01/12/2011

31

United Nations

14/06/2012

32

Spain

10/07/2012

33

Russian Federation

31/08/2012

Malaysia (PKD Board Member)

09/11/2012

35

Argentina

13/12.2012

36

Thailand

05/03/2013

37

Ireland

08/03/2013

38

Republic of Moldova

11/06/2013

39

Belgium

31/10/2013

40

Brazil (PKD Board Member)

03/01/2014

41

Qatar

10/03/2014

42

Seychelles

14/03/2014

43

Uzbekistan

19/03/2014

44

Philippines

21/03/2014

45

Iran (Islamic Republic of)

18/05/2014

46

Colombia

19/05/2015

47

Romania

03/02/2016

48

Finland

26/02/2016

49

Benin

03.03.2016

50

Botswana

05/04/2016

51

Kuwait

20/04/2016

52

Georgia

25/05/2016

53

Turkey

30/09/2016

54

Iceland

30/09/2016

55

Oman

22/12/2016

56

Turkmenistan

13/02/2017

57

Peru

28/02/2017

17

Case 1:17-cv-02969-TDC Document 33-5 Filed 10/14/17 Page 3 of 4

20

23

30

34

JA 1303

58

Barbados

29/03/2017

Case 1:17-cv-02969-TDC Document 33-5 Filed 10/14/17 Page 4 of 4

JA 1304

Case 1:17-cv-02969-TDC Document 33-6 Filed 10/14/17 Page 1 of 4

EXHIBIT 5

JA 1305

10/13/2017

SLTD Database / Border management / INTERPOL expertise / Internet / Home - INTERPOL

Case 1:17-cv-02969-TDC Document 33-6 Filed 10/14/17 Page 2 of 4
Border management
Fighting terrorism and transnational crime through effective border management.

Stolen and Lost Travel Documents database
INTERPOL’s database of Stolen and Lost Travel Documents (SLTD) enables INTERPOL National Central Bureaus (NCBs) and other authorized law enforcement entities – such
as immigration and border control officers – to ascertain the validity of a travel document (passports, identity documents, visas) in seconds.
The SLTD database was created in 2002, following the 11 September 2001 terrorist attacks in the USA, in order to help member countries secure their borders and protect their
citizens from terrorists and other dangerous criminals using fraudulent travel documents.

How it works
Details of stolen and lost passports are submitted directly to the STLD database by INTERPOL NCBs and law enforcement agencies via INTERPOL’s I-24/7 secure global police
communication system. Only the country which issued a document can add it to the database.
Law enforcement officials at INTERPOL NCBs and other locations with access to INTERPOL’s databases through the I-24/7 system – such as airports and border crossings – can
query the passports of individuals travelling internationally against the SLTD, and immediately determine if the document has been reported as lost or stolen so they can take the
necessary actions.
INTERPOL is not automatically notified of all passport thefts occurring worldwide, and the SLTD database is not connected to national lists of stolen or lost passports. As such,
information on national statistics must be requested directly from the country in question.

Statistics
Starting with a few thousand records from just 10 countries, the SLTD database has grown exponentially.
174 countries contribute to the database which contains more than 68 million records;
From January to September 2016 it was searched more than 1,243,000,000 times, resulting in more than 115,000 positive responses, or ‘hits’.

Extending access to SLTD
Despite the potential availability of the STLD database, not all countries systematically search the database to determine whether an individual is using a fraudulent passport.
In order to increase the use of the SLTD database worldwide, INTERPOL encourages each member country to extend access to the I-24/7 network – and through it access to its
criminal databases including the STLD – to major airports, border crossings and other strategic locations. This requires the installation of technical equipment or specialized
software.
To help identify and stop criminals from using lost or stolen travel documents long before they get to the airport or the border, INTERPOL has developed I-Checkit. This initiative
allows trusted partners in the airline industry to submit travel documents for screening against the SLTD database when customers book a plane ticket.
A positive ‘hit’ will be relayed to law enforcement, to take any necessary actions.

Advice for travellers
Do not attempt to travel with a document that you have reported as lost or stolen.
Once you have declared your travel document as lost or stolen to your national authorities, it is cancelled and considered invalid. The details of the document are passed on to
INTERPOL and entered into the SLTD database. Border officials in INTERPOL's member countries can screen passenger information directly against the SLTD database.
Selected airlines can submit the document details through I-Checkit for screening.
If you try to travel with an invalid document, entry or boarding is denied. The travel document is seized to prevent its future use and you cannot travel.
View the travel safe infographic

NEWS
29 September 2017

INTERPOL General Assembly adopts data processing policy on refugees

20 September 2017

INTERPOL capacity building programme targets human trafficking and trans-border crime in West Africa and Sahel

11 September 2017

INTERPOL training targets border security in Southeast Asia

06 July 2017

Vietnam President and INTERPOL Chief discuss regional and global security issues

09 June 2017

INTERPOL border operation in Southeast Asia nets internationally wanted suspects

26 May 2017

Fake document detection training by INTERPOL enhances security in Americas

https://www.interpol.int/layout/set/print/INTERPOL-expertise/Border-management/SLTD-Database

JA 1306

1/3

10/13/2017

SLTD Database / Border management / INTERPOL expertise / Internet / Home - INTERPOL

Case 1:17-cv-02969-TDC Document 33-6 Filed 10/14/17 Page 3 of 4
18 May 2017

Suspected terrorist among 17 arrested during INTERPOL operation in Southeast Asia

12 May 2017

Shaping border security focus of INTERPOL workshop on ASEAN common visa

03 May 2017

INTERPOL and regional police organizations meet to enhance cooperation

28 April 2017

INTERPOL training looks to enhance border security in Southeast Asia

21 April 2017

Thousands of police officers across Europe join INTERPOL operation against illicit firearms

04 April 2017

Cybersecurity experts meet on the future of major event security

23 March 2017

INTERPOL training on fake document detection to boost security in Southeast Asia

22 March 2017

INTERPOL reaffirms support to Global Coalition as international policing partner

27 January 2017

INTERPOL’s Project Stadia and Council of Europe meet on major event security

07 December 2016

INTERPOL border operation targets organized crime networks across West Africa

23 November 2016

INTERPOL and EU project bolsters security in Jordan

04 November 2016

INTERPOL training under EU-ASEAN programme spotlights border security

04 November 2016

Fake document detection focus of INTERPOL training

21 October 2016

INTERPOL Chief warns of dangerous gaps in global screening for foreign terrorist fighters

14 September 2016

INTERPOL team helps safeguard ASEAN summit under EU-ASEAN programme

10 August 2016

Global response to terrorism must evolve with the threat - INTERPOL Chief

https://www.interpol.int/layout/set/print/INTERPOL-expertise/Border-management/SLTD-Database

JA 1307

2/3

10/13/2017

SLTD Database / Border management / INTERPOL expertise / Internet / Home - INTERPOL

Case 1:17-cv-02969-TDC Document 33-6 Filed 10/14/17 Page 4 of 4
03 August 2016

INTERPOL team in Brazil to support security measures during Rio Olympics

13 June 2016

INTERPOL border operation in Southeast Asia targets crime suspects

08 June 2016

INTERPOL’s global network supporting Euro 2016 security

07 June 2016

Border management focus of INTERPOL training in West Africa

23 May 2016

INTERPOL and UNODC forge closer ties in combating transnational crime

29 April 2016

INTERPOL training to strengthen border management in West Africa

13 April 2016

INTERPOL border operation in Southeast Asia targets terror suspects

01 April 2016

Effective information sharing underpins efforts against nuclear terrorism – INTERPOL Chief

25 March 2016

INTERPOL global resources supporting Brussels terror probe

19 March 2016

INTERPOL advises enhanced border vigilance following Abdeslam arrest

18 March 2016

Border security focus of INTERPOL training under EU-ASEAN programme

23 February 2016

INTERPOL and Europol take steps against organized crime behind migrant smuggling

15 February 2016

Enhancing port security in the Philippines focus of INTERPOL training

15 February 2016

Drugs, criminals, guns and gold intercepted in INTERPOL border operation in West Africa

13 January 2016

European Parliament President and INTERPOL Chief meet on security issues

11 January 2016

INTERPOL Chief says fight against terrorism at decisive stage

© INTERPOL 2017. All rights reserved.

https://www.interpol.int/layout/set/print/INTERPOL-expertise/Border-management/SLTD-Database

JA 1308

3/3

Case 1:17-cv-02969-TDC Document 33-7 Filed 10/14/17 Page 1 of 11

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JA 1309

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Case 1:17-cv-02969-TDC Document 33-8 Filed 10/14/17 Page 1 of 52

EXHIBIT 7

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E XT R E M E V E T T I N G &
THE MUSLIM BAN
Harsha Panduranga, Faiza Patel, and Michael W. Price

Brennan Center for Justice at New York University School of Law

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ABOUT THE BRENNAN CENTER FOR JUSTICE
The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that
seeks to improve our systems of democracy and justice. We work to hold our political institutions and
laws accountable to the twin American ideals of democracy and equal justice for all. The Center’s work
ranges from voting rights to campaign finance reform, from ending mass incarceration to preserving
Constitutional protection in the fight against terrorism. Part think tank, part advocacy group, part
cutting-edge communications hub, we start with rigorous research. We craft innovative policies. And
we fight for them — in Congress and the states, the courts, and in the court of public opinion.

ABOUT THE BRENNAN CENTER’S LIBERTY AND
NATIONAL SECURITY PROGRAM
The Brennan Center’s Liberty and National Security Program works to advance effective national security
policies that respect constitutional values and the rule of law, using innovative policy recommendations,
litigation, and public advocacy. The program focuses on reining in excessive government secrecy; ensuring
that counterterrorism authorities are narrowly targeted to the terrorist threat; and securing adequate
oversight and accountability mechanisms.

ABOUT THE BRENNAN CENTER’S PUBLICATIONS
Red cover | Research reports offer in-depth empirical findings.
Blue cover | Policy proposals offer innovative, concrete reform solutions.
White cover | White papers offer a compelling analysis of a pressing legal or policy issue.

© 2017. This paper is covered by the Creative Commons “Attribution-No Derivs-NonCommercial” license (see http://creativecommons.
org). It may be reproduced in its entirety as long as the Brennan Center for Justice at NYU School of Law is credited, a link to the Center’s
web pages is provided, and no charge is imposed. The paper may not be reproduced in part or in altered form, or if a fee is charged,
without the Center’s permission. Please let the Center know if you reprint.

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ABOUT THE AUTHORS
Harsha Panduranga is a fellow in the Brennan Center’s Liberty and National Security program, funded by
Simpson Thacher & Bartlett, where he was a litigation associate. Harsha received a B.A., Phi Beta Kappa,
and a J.D., cum laude, from the University of Michigan.
Faiza Patel serves as co-director of the Brennan Center’s Liberty and National Security Program, which
seeks to ensure that our counterterrorism laws and policies respect constitutional values and promotes
transparency and accountability in national security matters. She has testified before Congress opposing
the dragnet surveillance of Muslims, developed legislation creating an independent Inspector General for
the NYPD, and organized advocacy efforts against anti-Muslim laws and policies. She has authored and
co-authored eight reports: Extreme Vetting and the Muslim Ban (2017), Trump-Russia Investigations: A
Guide (2017); The Islamophobic Administration (2017); Countering Violent Extremism (2017), Overseas
Surveillance in an Interconnected World (2016), What Went Wrong with the FISA Court (2015), Foreign
Law Bans (2013), A Proposal for an NYPD Inspector General (2012), and Rethinking Radicalization
(2011). Ms. Patel’s writing has been featured in major newspapers including The New York Times and The
Washington Post, and she is a frequent commentator on national security and counterterrorism issues for
print, televisions, and radio outlets. She is a member of the Board of Editors of the legal blog Just Security.
Born and raised in Pakistan, Ms. Patel is a graduate of Harvard College and the NYU School of Law.
Michael W. Price serves as Senior Counsel for the Brennan Center’s Liberty and National Security
Program. He has worked to oppose discriminatory surveillance practices, developed legislation to create
an independent Inspector General for the NYPD, and authored numerous amicus briefs on behalf of
the Brennan Center and others in cases involving electronic surveillance and privacy issues. Mr. Price
is a frequent commentator on national security issues for media and has published widely in academic
outlets. He is the author of National Security and Local Police (2013) and Rethinking Privacy: Fourth
Amendment “Papers” and the Third-Party Doctrine (2016). Before joining the Brennan Center, Mr. Price
was the National Security Coordinator for the National Association of Criminal Defense Lawyers, where
he provided legal assistance for the defense of detainees in the military commissions at Guantanamo Bay.
Mr. Price also engaged in litigation and public advocacy on issues related to privacy, electronic searches and
surveillance, and government secrecy. He holds a J.D. from NYU School of Law and a B.A. from Columbia
University in Political Science and Middle East & Asian Languages and Cultures.

ACKNOWLEDGMENTS
The authors would like to express their deep gratitude to the Brennan Center’s Rachel LevinsonWaldman, Andrew Lindsay and Erica Posey for their invaluable assistance in the drafting of this report,
as well as the Center’s 2017 interns, Margot Adams, Lamya Agarwala, and Naomi Dwork. They would
also like to thank Naren Daniel, Liza Goitein, Raffe Jefferson, John Kowal, Jim Lyons, Ryan Witcombe,
Alejandra Collado, Jessica Katzen, and Michael Waldman for their input and support. In addition,
the authors benefited greatly from conversations and correspondence with Muzna Ansari, David Bier,
Adam Cox, Alex Nowrasteh, Scott Kilner, Jeffrey Gorsky, Stephen Legomsky, and Stephen Yale-Lohr.
The Brennan Center also gratefully acknowledges The Bauman Foundation, CS Fund, Ford Foundation,
Open Society Foundations, and Security & Rights Collaborative, a Proteus Fund initiative for their
generous support of the Liberty and National Security Program.

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TABLE OF CONTENTS
Introduction1

I.

Terrorism Threat and Existing Vetting

4

A. Exaggerated Claims of Terrorism Threat from Foreign Born Persons

4

B. Strict Vetting for Visas

5

C. Intensive National Security Checks

8

D. In-Person Vetting: The Visa Interview

10

II. The "Muslim Ban" and "Extreme Vetting"

11

A. Identity Verification, Information Sharing, and the Muslim Ban 3.0

11

B. Identifying Applicants Warranting "Additional Scrutiny" 

14

C. What is "Additional Scrutiny"?

16

D. Ideological Vetting

17

E. Extreme Vetting by Algorithm

19

III. Costs of Muslim Ban and Extreme Vetting

20

A. Economic Costs

21

B. Cost to American Values

22

Conclusion

23

Endnotes

24

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INTRODUCTION
Just one week after taking office, President Trump signed Executive Order 13769, which banned travel from
seven predominantly Muslim countries – Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen – for ninety days.1
The impact of this “Muslim ban” was immediate, dramatic, and highly visible: travelers were detained at airports
and prevented from boarding planes to the United States as family and friends waited anxiously for their arrival.
The ban’s repudiation of America’s commitment to religious freedom and nondiscrimination generated protests
around the country. It was enjoined by federal courts around the country as discriminatory, until the Supreme
Court allowed a limited portion of it to go forward. But the ban was just the beginning. According to Executive
Order 13769 and its successor, Executive Order 13780, the ban was just a temporary measure, designed to pave
the way for the indefinite suspension of travel from certain countries as well as “extreme vetting.”
The new regime, which is just coming into view, operates as a de facto Muslim ban. First, starting in May 2017,
the State Department began implementing new vetting procedures for certain categories of visa applicants, the
burden of which will likely fall most heavily on Muslims. Further, on September 24, 2017, President Trump
issued a proclamation that indefinitely bars almost all travel to the United States from six Muslim-majority
countries (Chad, Iran, Libya, Somalia, Syria, and Yemen), 2 and subjects Iraqi nationals to “additional scrutiny.” 3
Although the proclamation also bans travel from North Korea (from which a negligible number of people
come to the U.S.) and some government officials from Venezuela, its impact is overwhelmingly on Muslims.
There is ample evidence that this is by design. Beginning on December 7, 2015, when then-candidate Trump
called for a “total and complete shutdown of Muslims entering the United States,” the president made his goal
crystal clear, repeatedly. 4 Despite months of litigation accusing the president of intentional religious
discrimination, that campaign pledge remained online until May 2017. 5 Extreme vetting and the Muslim ban
are ways of fulfilling this promise. As Trump himself said in the second presidential debate, “[t]he Muslim ban
is something that in some form has morphed into an extreme vetting from certain areas of the world…” 6 More
recently, with the travel ban stopped by courts, Trump was even more explicit, tweeting: “In any event we are
EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are
slow and political!” 7
These measures are only part of the administration’s broader nationalistic, isolationist agenda which includes
plans to cut legal immigration in half over a decade; 8 rescind protections for “Dreamers,” undocumented young
adults who were brought to the U.S. as children; 9 substantially increase arrests of undocumented people; 10 and
build a wall on the U.S./Mexico border. 11 The Trump agenda would also put a damper on travel to the United
States by slowing down visa application processing, 12 and increasing the required paperwork by “double, triple
or more.” 13
The administration’s claim that travel bans and extreme vetting are necessary to protect the nation against
terrorist threats from overseas is unsupported by evidence and – particularly in the context of the president’s
stated goal of banning Muslims – seems pretextual. Multiple federal courts were unconvinced by the
administration’s argument that national security required a cessation of travel from certain countries. 14 And as
a federal appellate court recently pointed out: “There is no finding that present vetting standards are inadequate,
and no finding that absent the improved vetting procedures there likely will be harm to our national interests.” 15
Indeed, empirical studies show that the risk of a deadly attack on U.S. soil by a foreigner who has been
improperly vetted is infinitesimally small. This is not surprising: The process for screening foreign nationals

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entering the U.S. is rigorous and the U.S. has one of the world’s most thorough visa vetting systems. 16
Applicants not only face an imposing legal standard aimed at ensuring that those planning to visit the U.S. do
not intend to stay in the country, but are also are run through a gamut of national security checks. 17 Concerns
are treated seriously: Anyone flagged for additional review is thoroughly examined by security officials, a process
that can take months.
Nonetheless, the Trump administration appears committed to banning travel from certain Muslim-majority
countries and adding further burdens to the already robust visa screening process.
First, the administration has instituted indefinite bans in place of the temporary ones, which again seem targeted
as Muslims. The new rules stem from a “worldwide review,” mandated by the initial Muslim ban order, to
determine whether additional information would be required from some countries to properly adjudicate visa
applications. 18 Although the administration has sought to the paint the process for deciding which countries
were blacklisted as an objective exercise, it clearly also allowed for substantial discretion to be exercised.
According to the Department of Homeland Security (DHS) 47 countries were found to be “inadequate” or “at
risk” of becoming “inadequate” in meeting “global requirements for information sharing” related to identity
verification and cooperation on counterterrorism matters. 19 But in the end, the president selected eight nations
for sanctions, citing “other risk factors” (e.g., significant terrorist presence within a country’s territory) and
“foreign policy, national security, and counterterrorism goals”. 20 These malleable considerations can be and
were used to justify selective and sweeping travel restrictions. Indeed, the weight of the sanctions fell primarily
on Muslim countries, five of which were on the original Muslim ban list. The addition of North Korea and
certain Venezuelan government officials to the blacklist seems to have little to do with the stated
counterterrorism purpose of the initiative. Only a tiny number of travelers would be affected (just 109 visas
were issued to North Korean nationals in 2016, for example 21) and neither country has a history of sponsoring
terrorism in the United States. 22
Second, the Trump administration has begun imposing additional requirements on those still eligible for a visa
to enter the United States. According to the September 2017 proclamation, nationals of Iran, Iraq, and Somalia
will be subjected to additional screening. The State Department has started doing the same for “applicant
populations warranting increased scrutiny.” 23 We do not yet know how these populations will be chosen, but
it is notable that the State Department estimates that 65,000 people annually will be subject to further scrutiny, 24
which is roughly the number of temporary visas granted in fiscal year 2016 to citizens of countries affected by
the first two Muslim ban executive orders. 25
Tagging individuals for additional scrutiny is not out of the ordinary in the visa process. But the context in
which extreme vetting has been introduced suggests that it may be a means of erecting barriers based on
stereotypes about Muslims rather than individualized assessments. Particularly troubling is the requirement that
visa applicants provide consular officers with extensive information about their online presence, such as their
social media handles. 26 There are serious questions about the effectiveness of this tool. Anyone seeking to avoid
scrutiny could easily erase their social media footprint. And interactions on platforms such as Facebook and
Twitter are notoriously open to misinterpretation – especially since they may be truncated, conducted via
symbols, and are context, culture and language specific. These types of checks do, however, undermine
fundamental freedoms of speech and faith, both of foreigners and their American friends, families and business
contacts. The collection of social media profiles also facilitates ideological profiling, 27 a practice that has been
rejected by Congress as contrary to American ideals and dismissed by experts as ineffective.

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Analysis of social media profiles will not be limited to groups identified as particularly risky: DHS is in the
process of developing the requirements for an automatic screening system that will continuously analyze a
multitude of databases, including those containing social media information, to evaluate such subjective
characteristics as whether a traveler is likely to “becom[e] a positively contributing member of society.” 28 Not
only is this proposition of dubious efficacy, it raises loud alarm bells about privacy, free speech, and
discrimination.
Making our already stringent visa regime more “extreme” also carries significant economic and cultural costs.
It dampens international travel, which accounts for billions of dollars in revenue, both from travelers from the
countries directly affected and others. Already, the Commerce Department is reporting a 4.2 percent drop in
international visitors to the U.S. in the first quarter of 2017 compared to the first quarter of 2016.29 While it is
impossible to say definitively that this was caused by the administration’s anti-foreigner policies and rhetoric,
this inference hardly seems like a “reach.” 30
Clamping down on travel will also choke off the free exchange of ideas and interaction with the world that are
hallmarks of a successful and open democratic society. Anecdotal reports suggest that visiting the U.S. is
becoming more difficult. A trade summit at the University of Southern California intended to boost business
ties between America and Africa had no Africans – all 60 of those scheduled to participate were denied visas. 31
A gathering at the University of Wisconsin had to be canceled for the same reason. 32 An all-girls robotics team
from Afghanistan and a women’s soccer team from Tibet, both registered to participate in events intended to
foster cross-cultural understanding, were denied visas. 33 There are many other such stories that show how travel
restrictions undermine American interests and values. 34 If American universities are to be beacons of innovation
and the exchange of ideas, they need to be able to welcome people from across the globe; if American values
include gender equality, as the Muslim ban executive orders themselves state, 35 the country should welcome
aspiring women engineers and athletes; if America values economic growth, it needs to foster international
business partnerships and science and technology learning. This is all to say that the national interest is not
served by a reflexive ratcheting up of visa requirements, but requires a thoughtful evaluation of the range of
interests at stake.
***
This report exposes the stereotypes and discriminatory intent underlying the Trump administration’s push for
travel bans and extreme vetting and highlights the dangers of such a policy. It begins in Part I by using empirical
evidence to debunk the administration’s claim that foreign nationals who slip through the visa process pose a
serious terrorism risk in the U.S. It demonstrates that the U.S. strictly controls who comes into the country,
outlining the demanding process for obtaining a visa to travel to the U.S. and the robust national security
safeguards that are part of the visa issuance process. As the chart below shows, citizens from about 80 percent
of the countries in the world require visas to visit the United States. 36 Only visitors from a few, wealthy countries
that are U.S. allies, such as the United Kingdom, Japan, Chile, and Australia, do not have to obtain a visa to
enter the U.S.

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This report focuses on the procedures for issuing
temporary – or “nonimmigrant” – visas for
travelers such tourists, students, and
businesspeople. The screenings for obtaining a
permanent visa or refugee status are even more
rigorous, and continue to be supplemented as
part of extreme vetting. 37 Part II analyzes the
most recent ban and the Trump administration’s
vetting plans, demonstrating how they reflect
harmful stereotyping that implements President
Trump’s agenda of choking off travel from many
parts of the world. This section explains the
contradictions and deficiencies in the
administration’s stated justification for the
September 2017 ban, and also details initiatives to
incorporate social media and automated vetting as
part of the visa process, arguing that there is little
evidence of their effectiveness and considerable
evidence suggesting that they will trample on free
speech and privacy norms. In Part III, the report
discusses the myriad other costs of making travel
to the U.S. more difficult, such as damage to our economy, values, and culture. The report concludes that the
U.S. already rigorously vets those seeking to travel to the country and that measures such as travel bans and
“extreme vetting” are both unnecessary and harmful.

I.

TERRORISM THREAT AND EXISTING VETTING

Despite the president’s claims to the contrary, the numbers show that the threat of terrorism in the United
States from foreign-born persons is very small and the country’s visa vetting system is one of the world’s most
rigorous.

a. EXAGGERATED CLAIMS OF TERRORISM THREAT FROM FOREIGN BORN PERSONS
Figure 1 from the Cato Institute shows vividly that murders by foreign-born terrorists are so small in number
that, with the exception of the 9/11 attacks, they are functionally counted as zero. 38
Indeed, over the past ten years, Americans have been more than ten times as likely to be buried alive or die in
a lightning strike than to die in a terrorist attack perpetrated by a foreign-born terrorist on U.S. soil. 39
The Cato Institute study also shows that tightening visa vetting mechanisms would not have stopped four out
of five total foreign-born terrorists who have successfully carried out deadly attacks on U.S. soil since September

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11, 2001. 40 Four were U.S.
Figure 1 – U.S. Murder
permanent
residents
or
Born Terrorism
citizens who perpetrated
attacks years after entering the
country, meaning that entry
screening would have been
unlikely to catch their
intentions
to
commit
violence. 41 Only Tashfeen
Malik – who, along with her
husband killed 14 people and
injured 22 others in San
Bernardino – entered the U.S.
not long before perpetrating
an attack. 42 Stepping back and
looking at all domestic
terrorist attacks committed by
foreigners in the U.S. between
1975 and the end of 2015,
Cato’s analysis of cases shows
that 7.38 million visas were
issued for every one issued to
a terrorist, amounting to a near-zero 0.0000136 percent of visas. 43

Rates, Excluding Foreign-

Despite this empirical record, Executive Order 13780 (the second version of the Muslim ban) made the
unsupported claim that “[s]ince 2001, hundreds of persons born abroad have been convicted of terrorism-related
crimes in the United States.” 44 The only two examples cited in the order demonstrate the paucity of evidence.
The first involved two Iraqi refugees who, after coming to the U.S., pled guilty to using improvised explosive
devices against U.S. troops in Iraq and attempting to support Al Qaeda efforts to kill U.S. soldiers in Iraq. 45
They were never implicated in possible attacks on U.S. soil, and did not pose a risk of the type from which the
order seeks to protect – domestic attacks committed by foreigners. The second example involved a person who
came to the U.S. as a child and decided to engage in terrorist activities as an adult, for which a lack of screening
cannot account. 46 Indeed, a DHS intelligence assessment found that most foreign-born terrorists turned to
violence more than a decade after coming to the U.S., “limiting the ability of screening and vetting officials to
prevent their entry because of national security concerns.” 47
The administration has not put forward even a modicum of evidence for its claims that foreigners pose a
significant threat to America within its borders. Terrorism – though understandably fear-inducing – remains a
rare form of violence in the U.S. Foreign-born perpetrators are even more rare. This at least in part because, as
described below, the U.S. has one of the strictest visa vetting regimes in the world.

b. STRICT VETTING FOR VISAS
As anyone who has applied for a visa to the United States can attest, gaining permission to enter the country is
not easy. Experts routinely rate the U.S. visa system as one of the toughest in the world, 48 and people have long
complained that it is a slow and expensive process. 49

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The process starts by filling out the Form DS-160, which asks for a range of biographical information and
contains background and security questions. Applicants must also provide fingerprints and a photograph. Some
of the materials and information required to assemble a visa application are shown in Table I below.

Table I: Visa Application: Supporting Documents and Questions50
Biographic and
Biometric Information

Supporting
Documentation
(Recommended)

Security Questions
(examples)

Names and aliases

Passport

Home address and address in the
U.S.

Proof of travel plans (event
invitation, itinerary)

“Have you ever or do you intend to
provide financial assistance or other
support to terrorists or other terrorist
organizations?”

Home / work / cell phone numbers;
email address

Family documents
(photographs, family tree,
marriage and birth certificates)

Travel information (including
purpose of trip, U.S. address, source
of funding for trip, details on last five
U.S. trips, five years’ foreign travel
history)
Contacts in the U.S. for identity
verification purposes.
Family information (includes parents’
and spouse’s names, dates of birth,
U.S. residency status)
Work / education / training
information (primary occupation,
employer, work address, salary,
description of duties, five years’
employment history, education
history from middle school)

Proof of employment and
financial viability (letter from
employer, business registration,
pension book, income tax
returns, bank statements)
Proof of property ownership in
home country (deeds, mortgage
papers, photographs)

“Have you committed, ordered,
incited, assisted, or otherwise
participated in extrajudicial killings,
political killings, or other acts of
violence?”
“Are you coming to the United States
to engage in prostitution or unlawful
commercialized vice or have you been
engaged in prostitution or procuring
prostitutes within the past 10 years?”
“Are you or have you ever been a drug
user or addict?”
“Do you have a communicable disease
of public health significance such as
tuberculosis (TB)?”
“Have you ever been arrested or
convicted for any offense or crime,
even though subject of a pardon,
amnesty, or similar action?”

Ten fingerprints; photograph

Applicants then face a considerable legal hurdle under the Immigration and Nationality Act (INA), 51 the statute
governing visa issuance. They must prove a negative: A temporary visa applicant is “presumed to be an

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immigrant” – that is, someone who would stay
in the U.S. permanently – unless they
affirmatively convince a consular officer that
this is not the case. 52 To overcome this
presumption, a visa applicant must marshal
extensive evidence to prove that they have
every incentive to return to their home
country. Such evidence includes: proof of
income and property ownership; proof of
business ownership, or assets; proof of
employment; proof of immigration or visa
status in the country where they are residing;
and travel itinerary or other explanation of the
planned trip. 53
Consular officers probe – asking for additional
documentation when appropriate – applicants’
reasons for wanting to visit the U.S. as well as
for other possible causes under the INA for
denying a visa, which are formally called
“Grounds for Inadmissibility.” These are used
to exclude people, for example, with certain
medical conditions as well those who have a
criminal history, are likely to become a public
charge or work without proper certification,
or, as discussed in Section II, pose a national
security risk. 54
In sum, potential visitors who come from one
of the over 100 countries whose citizens must
obtain a visa cannot travel to the U.S. on a
whim. They must meet the INA’s strict
criteria, plan far in advance, and obtain
materials in support of their visa applications
from a range of sources. Even if they do all
that, their application can be denied simply for
“fail[ure] to establish to the satisfaction of the
consular officer [eligibility] to receive a visa.” 55

c. INTENSIVE NATIONAL SECURITY
CHECKS
National security plays a critical role in the
process of deciding whether to grant an
individual permission to travel to the U.S.

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Consular officers screen all visa applicants against a range of U.S. government and international databases
containing voluminous law enforcement, intelligence, and immigration holdings, including classified
information, to verify their identity and assess whether they pose a security risk.56 According to the Migration
Policy Institute, “non-citizens are [now] screened at more intervals, against more databases, which contain more
detailed data, than ever before.” 57 Table II below lists some of the databases consulted to vet visa applicants.

Table II: National Security Screening Databases
Kingfisher

Consular Lookout and Support System
(CLASS), Consular Consolidated Database
(CCD), & Other Checks

Pre-Adjudicated
Threat Recognition
Intelligence
Operations Team
(PATRIOT) 58

Introduced by the
National
Counterterrorism
Center 59

All applicants are run through CLASS; 62 consular
officer receives printout of CLASS results prior to
applicant’s interview

DHS-run vetting
program used at the
approximately 30
diplomatic outposts in
25 countries where
DHS agents are posted.
Will screen all nonimmigrant visa
applications submitted
online prior to
adjudication when fully
implemented.

Checks all visa
applicants against the
U.S. government’s
central repository of
classified holdings on
known or suspected
terrorists, such as the
Terrorist Identities
Environment
(“TIDE”) 60
Consular officer receives
“red” (positive match)
or “green” (no match)
light. If KFE returns
red, a Security Advisory
Opinion – or
interagency review
involving the NCTC,
DHS, FBI, and others –
must be requested. 61

CLASS checks against information submitted by the
DHS, FBI, DEA, and other agencies, as well as against
non-classified records from the Terrorist Screening
Database (commonly referred to as the “Watchlist”),
which has data on known or suspected terrorists
submitted from across the U.S. government 63
CLASS also runs checks against biographic and
biometric data held in the CCD, which contains
records of all visa applications from the mid-1990s.
The CCD has contained photos of all applicants since
2001, and ten finger scans of all applicants since 2007.
The database includes over 140 million records. 64
Applicants’ personal information and fingerprints are
run against various law enforcement biometric
databases, including: DHS’s IDENT, and the FBI’s
NGI, those agencies’ primary suppositories of
biometric information, with millions of records.
Applicant photos are compared to the FBI’s
photographic database on known or suspected
terrorists. 65

Integrates resources
from ICE, CBP,
Department of State,
and the intelligence
community to screen
applicants prior to the
visa interview stage.
Potential derogatory
matches are investigated
by on site DHS
personnel.

An important element of this identity verification and threat detection process is the use of biometric
information collected from applicants. 66 Biometric information – such as fingerprints, facial images, and iris
scans – is unique to individual travelers and difficult to forge, which makes it a better way to confirm identity

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than biographic information (such as names, birthdays, and addresses).67 Since 2002, people wanting to come
to the U.S. have had to include with their visa application ten fingerprints and a photograph, which are then
integrated into their visa if they are issued one. 68 As with biographic information, biometric information is
compared to the extensive information contained in federal government databases. For example, a consular
officer running standard checks will be notified if an applicant’s fingerprints matched those from an ongoing
Department of Defense criminal investigation or a known terrorist safe house. 69
Biometric material is not the only additional information on travelers now available to immigration enforcement
officials. Cross-border intelligence and data sharing efforts have been significantly stepped up since 2001. Under
the EU-US Passenger Name Record (PNR) agreement, for example, DHS receives flight reservation data
collected by airlines operating between the U.S. and Europe, including biographical information, contacts, credit
cards, and baggage information. 70 This information is not only used at the time of travel, but is distributed
through DHS systems that are used to evaluate visa applicants. 71
Applicants tagged for further scrutiny – either on the basis of their interview with a consular officer or because
their names have been flagged through one of these security screenings – are subjected to a Security Advisory
Opinion (SAO), or administrative review, a multi-agency security review coordinated by the State Department
in Washington, D.C. During this review, the visa application is put on hold until the SAO process is completed
and renders approval or rejection. 72 According to the State Department, most security reviews are resolved –
one way or another – within 60 days, with the caveat that “the timing will vary based on individual circumstances
of each case.” 73 Practitioners generally advise clients that SAOs can take months to clear, with terrorism-related
reviews taking from 10 - 14 weeks, or even longer to process. 74
In recent years, visa processing has become more
automated. The “Kingfisher Expansion” program,
launched in 2013, allows officials to check
application
information
against
classified
government holdings, directly from any given
consular outpost. The official submits a “vetting
package” electronically, and the system checks it
against databases like the Terrorist Identities
Datamart Environment (TIDE), “the US
Government’s central repository on international
terrorist identities,” 75 without the State
Department in Washington, D.C., having to act as
an intermediary. The system simply responds with
either a “red light” or “green light,” indicating
whether further review is necessary. 76

Figure 2 – Refusal Rate for Tourist
and Business Visas 2016

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The system as currently configured already
results in visas being denied to nationals of
countries targeted by the administration’s
Muslim ban at very high rates, as Figure 2
shows. 88 In other words, they are already being
subjected to extraordinary scrutiny.

d. IN-PERSON VETTING: THE VISA
INTERVIEW
After an applicant’s materials are processed,
consular officers conduct in-person interviews,
which the State Department’s Foreign Affairs
Manual calls “the most significant part of the
visa issuing process.” 89 The interview is a fraud
prevention mechanism, designed to help catch
relevant facts that applicants may be
concealing. 90 The “vast majority of visa
applicants” are interviewed; waivers are only
available (although not necessarily granted) for
those younger than 14 or older than 79; those
seeking to renew visas that expired less than 12
months ago; and persons traveling as diplomats
or officials of international organizations. 91
Consular officers receive extensive (and
continuing) training on how to conduct
interviews and review applications effectively
with a “strong emphasis on border security.” 92
Among other things, they must review
interview case studies in which they critique
recorded interviews and simulate their duties;
they must be generally familiar with the culture
and speak the language of the country where
they are stationed; and they must have a Top
Secret security clearance. 93 Officers may ask
“all sorts of questions about the applicant’s
personal situation and are trained to …detect
signs of emotion or nervousness that may
indicate deception,” and have access to
extensive
information obtained from background

Banning Muslims: Ten Trump Statements 77
1.

“Donald J. Trump is calling for a total and
complete shutdown of Muslims entering the
United States” 78

2. “It’s not unconstitutional keeping people out…
Because look, we are at war with radical
Islam.” 79
3. “The Muslim ban is something that in some
form has morphed into extreme vetting for
certain areas of the world.” 80
4. “It’s an expansion… People were so upset
when I used the word Muslim… I’m talking
territory instead of Muslim.”81
5. “Nor can we let the hateful ideology of Radical
Islam – its oppression of women, gays,
children, and nonbelievers – be allowed to
reside or spread within our own countries.”82
6. “I think Islam hates us… And we can’t allow
people coming into this country who have this
hatred of the United States and of people who
are not Muslim.” 83
7. “We’re having problems… with Muslims
coming into the country” 84
8. On banning Muslim immigration” “You know
my plans all along. I’ve proven right.” 85
9. Executive Order 13,769 is “a new vetting
measure to keep radical Islamic terrorists out of
the United States of America”86
10. “When [Mr. Trump] first announced it, he said,
‘Muslim ban.’… He said, ‘Put a commission
together. Show me the right way to do it
legally.’” 87

investigations to facilitate the applicants’ provision of “full and frank” information relevant to the visa

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application. 94
If an applicant is denied a visa at the end of this long process, they generally have no recourse – the doctrine
of consular non-reviewability forecloses judicial review in almost all cases. 95
Trump has advocated for “extreme vetting” based on the notion that the rigorous screening systems described
above are inadequate to protect the American homeland from “Radical Islamic Terrorism.” 96 This is wrong.
As explained above, the U.S. visa regime is extremely rigorous and particularly since the 9/11 attacks has
included extensive national security safeguards. The proof is in the pudding: terrorism by foreign-born persons
on U.S. soil is very rare.
II.

THE “MUSLIM BAN” AND “EXTREME VETTING”

Trump’s promises of a “Muslim ban” and “extreme vetting” are closely intertwined. The early versions of the
Muslim ban have been replaced by a new, indefinite iteration, issued on September 24, 2017. It is the result of
a review process, which examined whether countries adequately cooperate with the U.S. to confirm the
identities of those applying for visas or other immigration benefits and provide information necessary to assess
whether such individuals pose “a security or public-safety threat,” as well as a generalized “risk assessment.” 97
While secure identity documents, information sharing, and counterterrorism cooperation have long been goals
of the U.S. government, the Trump administration’s initiative departs from previous efforts by imposing blunt
sanctions in the form of near categorical bans. Moreover, the result of the review largely replicated earlier
iterations of the Muslim ban, raising obvious questions about the administration’s selective application of
malleable criteria.
“Extreme vetting” has also begun and is slated for discriminatory application. 98 Whereas the existing screening
system has generally used individualized assessments to identify people subject to further scrutiny, 99 the Trump
administration has made clear that it will use vetting to target particular nationalities, such as Iraqis, Somalis
and Yemenis, as shown in Table III below.100 In addition, expanded efforts to collect social media data from
selected people – especially coupled with DHS’s reported plan to analyze all publicly available information on
travelers, both potential and actual, and assess them using vague and subjective criteria – only amplify concerns
that the visa issuance process will become systematically infused with religious and ideological biases.

a. IDENTITY VERIFICATION, INFORMATION SHARING, AND THE MUSLIM BAN 3.0
The declared aim of the Trump administration’s “worldwide review” of vetting procedures was to have
countries across the globe help the U.S. better screen visa applicants. 101 But in practice, it has led to yet another
iteration of the Muslim ban, and a continuation of the same discriminatory policy.
The United States has long encouraged countries to comply with internationally accredited technical standards
for issuing travel documents, sharing available information on people who are or may be public safety threats,
and answering questions about domestic counterterrorism policies. 102 The United Nations and INTERPOL,
with leadership from the U.S., have guided these types of passport security and information sharing
initiatives. 103 Increasing compliance with the standards put forward by the International Civil Aviation
Organization (“ICAO”), for example, has been a long-held policy goal of the U.S. government. 104 The ICAO
standards require that: (1) countries issue “ePassports” that are biometrically capable, meaning they support
identity verification linked to features unique to individual people – such as facial images or fingerprints – that

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are hard to forge; and (2) submit information authenticating those passports to the ICAO’s central database
which can be used by other countries to better identify forgeries. 105
Such efforts are not without their critics, 106 but they rest on agreement among many governments and
international agencies on the need to improve systems for verifying identity and preventing passport fraud. 107
Currently, more than 100 countries issue ePassports, and 58 participate in the database. 108 The costs of
switching from traditional to biometric passports can be substantial, 109 however, and other factors – such as
lack of capacity or conflict – may make it difficult for countries to participate in these systems. Of the countries
from which President Trump has banned travel, however, only Syria and Yemen do not issue ePassports. 110
Iran already participates in the ICAO database. 111
The Trump administration also wants countries to regularly report lost and stolen travel documents to
INTERPOL’s Stolen and Lost Travel Document Database (SLTD). 112 All 190 INTERPOL-member countries
can report these documents through their National Central Bureaus – which theoretically link local law
enforcement to the INTERPOL network. 113 The Obama administration too was concerned about improving
reporting. 114 However, this is not an easy task. 115 Some countries have not committed to doing so and even
the efforts of participating countries are hampered by a “lack of connection…between law enforcement …[and]
border control authorities… [and the] cost of deployment and existing IT infrastructure.” 116 Additionally, the
Trump administration would require countries to share criminal records as well as data on known or suspected
terrorists. 117 Commonly, such information sharing is governed by bilateral agreements, 118 several of which have
been operational. 119 According to DHS, these exchanges have been helpful for crime fighting and identifying
“prospective travelers who may pose a risk to the United States.” 120
Once again, better information sharing and reporting on lost and stolen passports are longstanding U.S. foreign
policy goals. Indeed, all countries from which visa-free travel to the U.S. is allowed must conform to these
requirements, although they do not always fully meet all of them. 121 But never has non-compliance with these
types of requirements triggered a broad travel ban. 122 Such blunt restrictions raise several serious concerns.
First, by totally banning immigrant visas from seven countries, the administration is departing from a longstanding priority of U.S. visa policy which is reflected in the Immigration and Nationality Act: the re-unification
of families. 123 A large proportion of immigrant visas are issued to family members of Americans.124 In fact, an
earlier Supreme Court ruling ruling on the Muslim ban enjoined the government from enforcing it against
individuals who have “bona fide” relationships in the United States, including close family members of citizens
and legal permanent residents. 125 In doing so, the Court recognized the delay of entry into the country as a legal
harm to U.S. family members. 126
The September 2017 proclamation suggests that people admitted to the country based on familial ties “may
present national security or public-safety concerns that may be distinct from those admitted as nonimmigrants,”
because they have “more enduring rights” and are “more difficult to remove…even after national security
concerns arise.” 127 This is a facially implausible justification. If the concern were truly about the lack information
available to identify and vet visa applicants, then that concern would be at its lowest ebb with respect to
immigrant visas, which generally require sponsorship by a U.S. citizen, permanent resident, or employer. The
U.S. sponsor must submit reams of documentation and paperwork 128 – requirements to which the Trump
administration has added substantially 129 – in order to verify their relationship with the applicant. 130 In other
words, visa officers already have extensive information that allows them to establish the identity of those
applying for immigrant visas.

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Table III: Impact of September 2017 Proclamation
Country

Immigrants

Business Visitors

Tourists

Students

Chad

Banned

Banned

Banned

As before

Iran

Banned

Banned

Banned

Will be subject to
"enhanced screening
and vetting"

Libya

Banned

Banned

Banned

As before

North Korea

Banned

Banned

Banned

Banned

Syria

Banned

Banned

Banned

Banned

Venezuela

As before

Banned: government
officials involved in
screening and vetting
procedures and
immediate family
members

Banned: government
officials involved in
screening and vetting
procedures and
immediate family
members

As before

Yemen

Banned

Banned

Banned

As before

Somalia

Banned

"Subject to additional
scrutiny"

"Subject to additional
scrutiny"

"Subject to additional
scrutiny"

Iraq

will be "subject to
additional
scrutiny"

"subject to additional
scrutiny"

"subject to additional
scrutiny"

"subject to additional
scrutiny"

Second, just because countries do not meet a specific prescribed standard – say they fail to report lost or stolen
documents to INTERPOL’s SLTD – does not necessarily mean that permitting their nationals to enter the
U.S. will create serious national security risks. As discussed in Section I above, and shown in Table I, a
substantial amount of information is already collected from every visa applicant to corroborate their identity,
both in the form of biometric data (fingerprints and photographs) and background information (travel, address,
employment, or financial history, including corroborating documentation). Indeed, empirical analysis has found
no evidence that “lack of reliable information from … governments … has caused higher rates of terrorismrelated crimes from [Muslim ban] countries. 131

Finally, there is little doubt that the criteria for deciding which countries to blacklist have been selectively
applied. Banning travel for non-compliance with identity verification protocols, for example, would have
devastating economic and diplomatic consequences if applied equally to all countries. For example, China,

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India, and Indonesia comprise about 40 percent of the world’s population but contribute very little data to the
INTERPOL database on stolen and lost passports. 132 Even developed European countries that participate in
the Visa Wavier Program struggle to comply with their information sharing obligations.133 And U.S. officials
recognize that the “standards are so high that most countries won’t meet them.” 134
Instead, as many experts feared, 135 the countries chosen for sanctions stemming from the “worldwide review”
seem to have been handpicked to meet other goals. Several anomalies in the proclamation – as well as its
ultimate impact – show why this is the case.
According to the proclamation, DHS initially identified 47 countries that were “inadequate” or “at risk” based
on their “identity-management protocols, information-sharing practices, and risk factors.” 136 “Engagement”
with these governments allowed DHS to whittle the list down to eight countries that did not meet its baseline
standards, but only seven of these countries became the target of broad travel bans. Iraq was not subject to a
ban due to diplomatic and military considerations. 137 In contrast, DHS found that Somalia did satisfy the
baseline requirements, but nonetheless recommended a travel ban. 138 This raises questions as to the extent to
which the process was manipulated, particularly given the president’s singling out of Somalis as posing a
terrorism threat. 139 The proclamation also claims that its restrictions on non-immigrant visas are “tailored” in
order to: 1) mitigate security threats; and 2) to recognize certain countries’ willingness to cooperate in U.S.
efforts to combat terrorism or to encourage improvements. 140 But as Table III shows, for five countries –
Chad, Iran, Libya, Somalia, Yemen – the restrictions are functionally the same. Tourists and business people
are forbidden, but students are allowed in. There is no explanation provided for why students might pose less
of a risk than other visitors. Perhaps an answer might be found in the success that states such as Hawaii and
Washington have enjoyed in asserting their interest in reeiving international students in their public univerisites,
but that hardly seems connected to the stated purpose of the order. 141
Leaving aside process, the practical effects of new travel ban bear a striking resemblance to its predecessor,
Executive Order 13780. Using 2016 data as a baseline, the current policy would ban 76% of nonimmigrant visa
applicants and 91% of immigrant visa applicants affected by the previous order. 142 The overlap is substantial
despite the inclusion of Chad and North Korea, which together only had 1,049 total visas of the kind affected
by sanctions issued in 2016 – tourist, business, and immigrant visas for Chad (940), and all visas for North
Korea (109). 143 Likewise, the addition of Venezuela does not meaningfully change the calculus because the
restrictions apply to government officials and their families, not ordinary applicants. 144
Far from being “tailored,” 145 these measures are – most charitably – a blunt instrument: the cloak of visa security
is being used as an excuse to ban citizens of a select group of Muslim countries, as the administration has been
trying to do since January 2017. The inclusion of non-Muslim states cannot erase the president’s oft-repeated
commitment to use extreme vetting as a way of keeping Muslims out of the United States.

b. IDENTIFYING APPLICANTS WARRANTING “ADDITIONAL SCRUTINY”
Trump’s recent proclamation prescribed additional visa vetting for nationals of Iran, Iraq, and Somalia. 146 Such
broad-brush scrutiny is not surprising because the administration’s extreme vetting initiative is premised on
identifying “populations” warranting additional vetting. 147 While consular officers have long collected
additional information when their interviews with visa applicants raised suspicions, or when a traveler’s name
was flagged by a security database, it appears that the State Department will now target populations, likely
identified by their shared religion – with national origin or ideology used as a proxy.

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While the State Department has stated that travelers will be vetted “based on individual circumstances and
information they provide,” 148 the most recent proclamation shows that the U.S. will subject entire countries to
this regime. Even before the September proclamation was issued, the State Department estimated that the new
rules would affect 65,000 people. 149 This number closely tracks the roughly 68,000 nonimmigrant visas issued
in 2016 to nationals of the seven countries included in the first travel ban (Executive Order 13769), as shown
in Figure 3 below. 150 It also aligns with the 66,000 such visas that would have been affected by the proclamation
were it applied in 2016. 151 In addition, the Department’s first attempt at implementing these requirements –
which was halted due to ongoing litigation – directed consular officials to implement these measures to all
nationals of the initial Muslim ban countries.152 In sum, “populations warranting increased scrutiny” could
simply be code for people from Muslim countries or some subset thereof.
Notwithstanding Trump’s assumptions to
the contrary, such an approach is unlikely
Figure 3 – Number of Nonimmigrant and
to make us safer. There is no evidence that
Immigrant Visas Issued 2016
religion or national origin are indicative of
a propensity to terrorism. Writing in
opposition to the Muslim ban, more than
40 national security experts from across
the political spectrum argued that vetting
should be responsive to “specific, credible
threats
based
on
individualized
information,” not stereotypes of religions
or countries. 153 Even an analysis by
Trump’s own DHS found that citizenship
was an unreliable indicator of terrorism
threat, 154 a finding echoed by two federal
appeals courts in rejecting the security
rationale for Muslim ban Executive Order
proffered by the administration. 155 As has
been detailed in previous Brennan Center
reports, decades of counterterrorism
research has not been able to confirm traits
that could be used to identify people who have a propensity for terrorism. 156 Indeed, national security officials
have also warned that banning people from Muslim countries would have broader consequences, damaging the
“strategic and national security interests of the United States,” corroding relationships with allies and reinforcing
the terrorist propaganda. 157
The administration has argued that the Muslim ban was based on the Obama administration’s previous
identification of Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen as “sources of terror.” 158 This is only half
true. Under Obama, a combination of legislative and executive action made it so people previously eligible for
visa-free travel to the U.S. who had traveled to Iran, Iraq, Sudan, Syria, Libya, Somalia, and Yemen on or after
March 1, 2011 were required to apply for visas to enter the U.S and therefore go through the same,
individualized vetting process through which citizens of non-visa waiver countries proceed. 159 Dual nationals
of Iran, Iraq, Sudan, and Syria were also required to obtain visas even if they held European passports. 160
Though not a blanket ban, this policy does discriminate solely on the basis of travelers’ links to predominantly
Muslim countries, and has been criticized for doing so. The E.U. considered a reciprocal measure to strip U.S.

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citizens’ visa-free travel privileges; 161 the technology industry has assailed it as discriminatory and bad for
business; 162 and prominent lawmakers, both Democratic and Republican, have censured the visa requirement
for dual nationals. 163 Nonetheless, it is notable that the change was, in some sense, a vote of confidence in the
existing visa vetting process, which was considered sufficiently robust to “help neutralize the threat from
foreign terrorists entering our country,” in the words of House Speaker Paul Ryan (R.- WI). 164
However Obama-era vetting policies came about, Trump is now president. And his Islamophobic statements
combined with circumstantial evidence of which affected “populations” will be chosen for additional scrutiny
give rise to a worry that the onerous and invasive requirements described in detail below will be applied
discriminatorily and to the likely detriment of national security.

c. WHAT IS “ADDITIONAL SCRUTINY”?

i.

BIOGRAPHICAL AND TRAVEL INFORMATION

Applicants falling within “populations” the Trump administration determines need additional scrutiny, as well
as visa applicants from Iran, Iraq, and Somalia, will be required to provide additional information including: 15
years’ worth of travel, address, and employment history; email addresses, and phone numbers; names of
siblings, children, former spouses not already provided; prior passport numbers; and details and documentation
on any travel to an area controlled by a terrorist organization. 165 These applicants will almost certainly be subject
to additional intensive interagency security reviews, which will, at the very least, delay visas for months on
end. 166
These new requirements would subject potential travelers to significant burdens. For example, gathering travel
information for the last 15 years – including details such as locations visited on trips, sources of funds for travel
to foreign, and even potentially domestic, locations, and corroborating documentation 167 – could require
weeks’ worth of time and substantial resources, involve tracking down accommodation and transportation
providers, and finding credible people to corroborate trip details. Nor is it clear that reaching so far back in
time would offer security benefits, particularly since many current terrorist threats like ISIS did not even emerge
until 2013. 168 Indeed, the questions for even a short visit to the U.S. require more personal information than
the forms required to get a Top Secret security clearance. 169
Two consequences of this policy are, however, clear. First, it will enable the collection of more information for
government databases, potentially for use in data mining, as discussed below. Second, it imposes a sufficiently
heavy burden that people wanting to come to the U.S. will find gathering required supplemental application
materials difficult, and many others will be discouraged from even applying for a visa.

ii.

SOCIAL MEDIA INFORMATION

The review of social media postings is increasingly touted as a tool for vetting those seeking to enter the U.S.
In 2016, DHS added an optional social media identifier field to the portal through which nationals of visa
waiver countries apply for entry into the U.S. It also ran a pilot program that screened the social media posting
of certain temporary visa applicants. 170 The new rules being implemented by the Trump administration require
those from “populations warranting additional scrutiny” to provide all social media platforms and identifiers
used over the last five years.171 Further, social media checks are required for people who have been in an area
at any time it was controlled by ISIS, or if a consular outpost suspects that an applicant may be linked to ISIS

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or another terrorist group. 172
The expansion of social media data collection is unsupported by evidence that it is a reliable means of
improving visa vetting. In fact, the DHS Office of Inspector General recently audited the Department’s
existing social media pilot programs to screen applicants for immigration benefits. Its report – titled “DHS’
Pilots for Social Media Screening Need Increased Rigor to Ensure Scalability and Long-term Success” – found
that DHS did not have sufficient metrics in place to measure the programs’ effectiveness. The Inspector
General concluded that the pilot programs provided little value for guiding the rollout of any departmentwide social media screening program. 173
Social media platforms amplify issues of subjectivity inherent in many human communications. This is for
two reasons. First, as with other communications, context is important. Both humans and computers have
trouble properly contextualizing social media communications in order to detect sarcasm or other features of
local parlance. 174 A few examples illustrate this problem. In 2012, a U.K. citizen was detained for hours at Los
Angeles International Airport and denied entry into the U.S. after telling a friend on Twitter, “[f]ree this week,
for quick gossip/prep before I go and destroy America,” slang for partying; he also said he would “dig[]
Marilyn Monroe up,” a reference to a popular television show. 175 Rap lyrics have been wrongly interpreted as
threatening messages in criminal cases.176 Further exacerbating these issues, officials will often be looking at
posts in different languages, governed by different linguistic conventions. 177 It is not obvious that computers
will fare better. For example, DHS’s foray into using tone analysis software to identify national security threats
has been questioned for defining terms statically, without accounting for historical or linguistic nuances. 178
Second, social media platforms contain many kinds of non-verbal communications: Facebook has “likes” and
other emoji reactions; Twitter users can “heart” or “re-tweet” communications.” There is no interpretive
consensus on whether many of these kinds of acts count as endorsements. 179 As the Brennan Center and 34
other civil rights and liberties groups explained in a letter to the State Department:
If a Facebook user posts an article about the FBI persuading young, isolated Muslims to make
statements in support of ISIS, and another user “loves” the article, is he sending appreciation that the
article was posted, signaling support for the FBI’s practices, or sending love to a friend whose family
has been affected? …
A similar dilemma infects Twitter … A user may click the heart simply to mark a post for later review,
but it could falsely signal to her followers – or more urgently, the U.S. government – that she agrees
with the sentiment expressed….
In light of the multitude of possible interpretations of both speech and non-verbal communication,
consular officers will be able to exercise enormous, unchecked discretion when it comes to assessing
foreign residents’ suitability to enter the country and quizzing them about the meaning and significance
of a range of expression.180
Beyond interpretative issues, the accumulation and analysis of social media information corrodes the
fundamental freedoms of speech and faith, as well as privacy. The State Department claims that it will not use
social media information to deny visas “based on...religion [or] political views.” 181 This seems like a rule that
begs to be broken. While social media can be used verify identity, it also easily reveals information on political
and religious views, as discussed further below. Anyone thinking of coming to the United States will almost

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certainly either refrain from expressing views on controversial political or religious matters or sanitize their
online personas. Such self-censorship should not be the end result of policies pursued by a democracy
committed to the values embodied in the First Amendment to the U.S. Constitution and the International
Covenant on Civil and Political Rights, which guarantees “the right to freedom of expression,” including the
“freedom to seek, receive and impart information and ideas of all kinds.” 182

d. IDEOLOGICAL VETTING
Social media analysis facilitates ideological vetting of visa applicants, which is a stated goal of the Trump
administration. During the election campaign Trump promised to bring back a Cold War style “ideological
screening test.” 183 At a Phoenix rally, he told the crowd that “extreme vetting” would make sure the U.S. only
accepts “the right people,” using “ideological certification to make sure that those we are admitting to our
country share our values and love our people.” 184 Trump’s many proclamations about Muslims leave no doubt
who he is targeting as being ideologically unfit to travel to the country and he has singled out “honor killings”
and discrimination on the basis of gender or sexual orientation as aspects of Islam that are incompatible with
American values. 185 The intention to use ideological tests is reflected in Trump’s executive orders implementing
the Muslim ban and triggering extreme vetting, and senior DHS officials have said they are working on such a
test.186
The original travel ban, Executive Order 13769, contained several coded references to Islam. For example,
among its stated goals was to exclude people who “would place violent ideologies over American law.” 187 This
is a reference to jihad (which is the “violent ideology” that is at the forefront of Trump’s counterterrorism
policy), 188 and it reflects the view held by fringe Islamophobes, many of whom have been permitted into
Trump’s inner circle, that Muslims cannot participate in democratic societies because they hold to a “higher
law.” 189 The order would have excluded those who perpetrated “honor killings” or would discriminate against
Americans on the basis of race, gender, or sexual orientation. 190 While all of these reprehensible attitudes can
be found in many countries, including the United States, in the Western imagination they are associated with
Islam. 191 The order also would have barred “those who persecute minority religions” and included a telling
carve out for non-Muslims, 192 provisions which track Trump’s frequent remarks about how badly Christians
are treated in Muslim countries. 193
The second version, Executive Order 13780, was designed to withstand obvious charges of anti-Muslim bias
that stymied the first version in court. It removed many of the references to Islam, suggesting that the White
House had at least some understanding that the stereotypes in the original version were objectionable. 194 But it
did not purge them entirely, retaining, for example, an instruction to the DHS Secretary to report on the number
of “honor killings” by foreigners in the U.S.195 Indeed, it seems almost certain that the first order reflects the
administration’s true intentions. As federal courts have noted in enjoining the second order, Trump has made
it obvious that the blatant discrimination that marked the first order also animates its successor. 196 The president
called the second order a “watered down, politically correct version,” and recently tweeted that the travel ban
should be “far larger, tougher, and more specific” than the one reflected in the
second order. 197 His senior advisor Stephen Miller went on record saying that it would achieve the “same basic
policy outcome.” 198
The ideological questions that the administration is reportedly considering asking visitors are in line with the
stereotypes about Muslims reflected in Trump’s public statements and Executive Order 13769. According to

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the Wall Street Journal, they “include how visa applicants view the treatment of women in society, whether they
value the ‘sanctity of human life’ and who they view as a legitimate target in a military operation.” 199
Ideological screening of the kind described above has a long history in U.S. immigration law, 200 elements of
which still persist. 201 But Congress has largely moved away from this tactic since 1990, when it unanimously
repealed broad ideological exclusions that permitted exclusion of those who “engage[d] in activities which
would be prejudicial to the public interest,” even through speech or writing. 202 Congress jettisoned ideological
vetting because it led to absurd exclusions – for example, author Graham Greene, comedian Charlie Chaplin,
novelist Gabriel Garcia Marquez, and Pierre Trudeau, who went on to become the Prime Minister of Canada
– and had come to be seen as incompatible with the American ethos. 203 In the words of Senator Daniel Patrick
Moynihan, who sponsored the repeal, ideological screening projected a “fearful, muddled, intimidated
citizen[ry],” inconsistent with the nature of the American body politic. 204
Fortunately, at least some lawmakers today remain concerned about these principles. Senator Claire McCaskill
questioned then-DHS Secretary John Kelly at length about the Department’s plans for ideological vetting and
expressed deep concern:
It seems to me we are signaling something that's very un-American to the rest of the world by
announcing this policy. Every ambassador in Washington read this article in The Wall Street Journal
yesterday and every ambassador in Washington called back to their country and said, listen to this,
they're going to start asking people for their social media password and about their ideology in America.
That is incredibly damaging, and all the bad guys are going to … just lie. I don't get how get we get
anything out of it. 205
In addition to conflicting with American values and legal norms, as former commissioner of the Immigration
and Naturalization Service, Doris Meissner has pointed out, ideological tests “have proven to be poorly
equipped to actually predict what people are going to do.” 206 This is unsurprising. Decades of empirical research
have shown that ideology is not a good predictor of violence. Many people hold views that can be described as
“extreme” and never act violently; the reverse is also true. 207 Moreover, as discussed above, figuring out the
nuances of what people think or believe is difficult, even with social media posts at our disposal. 208 Finally, as
noted previously, according to a DHS study, the few foreigners who do commit terrorist acts in the U.S. do so
years after coming to the country, so investigating their ideological proclivities is unlikely to identify threats. 209
Indeed, the law already contains robust mechanisms for identifying and excluding people who support terrorist
groups. In particular, the PATRIOT Act passed in the wake of the September 11 attacks provides that those
who “endorse[] or espouse[] terrorist activity or persuade[] others to endorse or espouse terrorist activity or
support a terrorist organization” can be barred from the country. 210 As part of the visa process, would-be
visitors are asked a number of questions aimed at surfacing links to violent behavior or terrorism. 211 If anything,
these and related PATRIOT Act amendments to the INA are overbroad,212 as Congress recognized in 2008,
when it made it easier for immigration authorities to grant discretionary waivers for their application. 213
Overall, ideological tests of the kind the Trump administration appears to embrace reflect the very worst of
extreme vetting. They infect policy decisions with religious stereotypes, while providing no identifiable benefits
to national security.

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e.

EXTREME VETTING BY ALGORITHM

Despite the president’s vocal support for extreme vetting of Muslims, the administration has sought to portray
its the measures as applying only to a limited set of people who require additional scrutiny. The State
Department claims that it will gather social media information from populations “warranting additional
scrutiny” that it estimates will include 65,000 people. Also, when the DHS Secretary was questioned about
reports of ideological screening, he insisted that such measures would only be applied to a very small number
of people.214
In fact, the administration is contemplating something that reaches much further – an automatic vetting system
that will ingest reams of information about all potential visitors from government databases and publicly
accessible platforms such as “media, blogs, public hearings, conferences, academic websites, social media
websites…radio, television, press, geospatial sources, internet sites.” 215 This would presumably include the
extensive biographical and biometric data collected from visa applicants, as well as any social media-related
information they provide. 216 According to the Statement of Objectives disclosed at a trade show, the system
should evaluate “an applicant’s probability of becoming a positively contributing member of society as well as
their ability to contribute to national interests,” 217 and whether they intended to commit a crime or terrorist
attack once they arrived here. 218 It would continue to monitor people even after they come to the U.S., at least
for the duration of their visit and potentially afterwards.
Even a cursory examination of the goals of this project demonstrates its fundamental flaws. First, the system is
meant to determine whether someone is probable to “positively contribut[e]” to society, “contribut[e] to the
national interest.” This element of screening was included in the first Muslim ban Executive Order, but
removed in its later version. 219 While the State Department perhaps has the authority to evaluate an individual
based on their ability to contribute to the national interest, that standard seems a poor one by which to appraise
to visitors, students, and businesspeople who are – by definition – only in the country for a limited period of
time. Moreover, the characteristics to be evaluated are subjective and political, not scientific. For example, a
transgender political activist seeking to attend a conference might be considered as adding value to U.S.
discourse by some and as inflammatory by others. Malleable concepts such as value to “society” and the
“national interest” could easily be used to keep out Muslims on the theory that they present a threat to American
values as this president and his inner circle clearly believe. 220 The fact that a computer conducts this assessment
does not mean the results will be objective.
Nor is there cause to believe that an automated system would be able to make accurate predictions about who
will commit a terrorist or criminal act at some point in the future. Attempts to predict criminality in the U.S.
typically rely on law enforcement records of arrests and crime as a proxy. Such data may not be available for
those applying for visas, and is in any event unreliable because it integrates and perpetuates existing biases in
policing. 221 Moreover, as experts have repeatedly explained, algorithms are not particularly good at predicting
rare events such as terrorism – they generate an unacceptably high rate of errors and should not be used to
make decisions that can have a serious impact on individuals’ lives. 222
Finally, ongoing monitoring of visitors to the United States will have tremendous impacts for constitutional
privacy and free speech rights. Everyone who is on United States territory is entitled to the same basic
constitutional protections, regardless of whether they are a citizen. 223 Such monitoring would threaten the rights
of Americans and visitors alike.

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In sum, the automatic social media monitoring being proposed by DHS seems to ignore serious issues of
effectiveness and principle.

III.

COSTS OF THE MUSLIM BAN AND EXTREME VETTING

This report has outlined how the U.S. already has one of the most restrictive visa systems in the world with
layers of national security checks, and that there is little evidence that banning travel or increasing the hurdles
to get a visa to come to the United States would have a measurable national security benefit. There is, however,
ample evidence that doing so would impose economic costs. And, travel policies and practices that functionally
discriminate on the basis of religion, national origin, or ideology would deal a punishing blow to the values that
define America. Simply put, a permanent regime of extreme vetting would stanch the flow of money and talent
into the United States and undermine the character of American democracy.

a. ECONOMIC COSTS
There is little doubt that restricting travel carries serious economic costs. 224 The United States welcomed more
than 180 million temporary visitors in 2015; 225 more than 10 million of them required visas to enter the
country. 226 Making it harder to get visas will discourage these people from traveling to the United States. But it
will also deter – and seemingly already is deterring – people who are not directly affected by visa policies but
are put off by the animus reflected in initiatives like the Muslim ban, extreme vetting, and the border wall. Less
travel to the United States means lost revenue, taxes, and jobs. 227 It also means less trade, less foreign direct
investment, and fewer scientific and cultural exchanges. 228
The vast majority of temporary visitors come to America for business or tourism. 229 They stay in hotels, eat at
restaurants, and buy things at stores, which in turn generates revenue, taxes, and jobs. In 2016, the United States
generated $247 billion from international travel. 230 The State Department estimates that one American job is
created for every 67 visitors to the country. 231
Other temporary visitors include university students, “specialty” workers under the H1-B program (popular in
Silicon Valley), as well as seasonal agricultural workers and intra-company transfers. 232 The benefits of such
visas are immense for American companies and universities seeking to attract top talent and compete globally. 233
Highly skilled immigrants boost the American economy by increasing innovation and productivity, which helps
create new jobs and new opportunities for expansion. 234 Indeed, the history of American innovation is
inevitably a history of American immigrants. More than 40% of Fortune 500 companies were founded by
immigrants or their children, including AT&T, Apple, Google, Intel, General Electric, Oracle, McDonald’s,
and eBay. 235 These quintessentially “American” companies owe their existence to immigrants who came to the
United States from countries like Syria and Iran, now targeted by President Trump’s travel ban. 236 Foreigneducated doctors fill significant gaps in the U.S health care system, treating sicker populations and producing
better health care outcomes than domestically educated doctors. 237
The decade after September 11 offers a cautionary tale on how extreme vetting could hurt the U.S. economy.
High security in the aftermath of attacks led to an immediate drop in travel, followed by a “lost decade” for the
travel and tourism industry due to strict new visa requirements, including mandatory in-person interviews. 238
According to the U.S. Travel Association, the post-September 11 rules led to 68 million potential visitors lost,
$509 billion in spending lost, and 441,000 jobs lost. 239 And impacts can be immediate: in just two days after

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Trump ordered the first Muslim ban in January 2017, the country’s major airlines lost nearly $5 billion in market
value due to worries about its effects. 240
On the flip side, easing travel restrictions has been shown to have significant benefits for the country. Under
the Visa Waiver Program, initiated under President Ronald Reagan in 1986, temporary visitors from 38 mainly
developed countries in Europe do not need a visa to enter the U.S. 241 The economic benefits of the waiver
program are well documented: the Department of Homeland Security estimates that travelers from visa waiver
countries spent about $84 billion on goods and services in FY 2014, or contributed almost $231 million per day
to economies around the country. 242
The September proclamation, as well as the general tenor of the president’s statements, makes it clear that travel
restrictions will have an outsized impact on Muslims. In the years immediately following September 11, visas
issued to visitors from predominantly Muslim countries dropped the most, 243 and early analysis of data suggests
such drops may again be occurring.244 State Department data shows that nonimmigrant visas from Arab nations
have declined by 16% in 2017 compared to last year; for the countries included in both previous Muslim bans
(Iran, Libya, Somalia, Sudan, Syria and Yemen), that number is 44 percent. 245
Travel bans and extreme vetting may affect Muslim travelers most directly, but they are likely to cause ripple
effects that extend to international travel more generally. In September 2017, the Commerce Department
reported a drop of almost 700,000 international visitors in the first quarter of 2017, compared to the previous
year – with the largest drops coming from the Middle East and Africa. 246 Indeed, extreme vetting appears likely
to dampen all travel, 247 and like the post-September 11 decade, give the impression that America is closed for
business. 248
As a group of over 50 academic and scientific groups explained, the new visa policies promulgated by the State
Department would not only prevent specific individuals from coming to the United States, but their “undefined
and unclear” nature would have “negative indirect impacts in other areas” as well. “The amount of information
that could be collected, the lack of knowledge about what will be done with this additional information, and
concerns about their privacy may well lead many to look to other countries for scientific partnerships or higher
education pursuits.” 249 This would deprive the United States of a wealth of talent and opportunities for
collaboration in the fields of science, technology, engineering, and mathematics, all of which are key drivers of
our economy. 250

b. COST TO AMERICAN VALUES
Visa rules that discriminate against visitors on the basis of religion or nationality will come at the cost of core
American values. An open society is central to our national character as a nation of immigrants. Freedom of
religion and equality are the basic building blocks of American democracy, drawing people from every corner
of the world for centuries.
While the American immigration system often does not live up to the nation’s highest ideals, it has trended
toward more openness and equality over time. 251 After World War II, Congress officially removed race-based
restrictions on immigration, even though it maintained a quota system with a heavy preference for western
Europeans.252 Beginning in the civil rights era, Congress began to eliminate national origin as criterion for
admission. In 1965, it eliminated the quota system and replaced it with a preference for skilled labor and family
unification, flatly rejecting discrimination based on “race, sex, nationality, place of birth, or place of
residence.” 253 This reform brought the country’s immigration laws in line with its “national history and ideals” 254

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and “manifested Congressional recognition that the maturing attitudes of our nation made discrimination on
these bases improper.”255 It also led to major demographic changes within the United States, as the next halfcentury saw a rise in immigration from Latin America and Asia. 256 Further reforms in 1990 and 2000 raised
immigration caps and increased the emphasis on skilled workers as advanced sectors of the economy grew. 257
By contrast, President Trump’s extreme vetting and travel ban initiatives come wrapped in fear-laden rhetoric
and are accompanied by support for anti-immigrant legislation, which aim to swing the pendulum back toward
a pre-civil rights era outlook. 258 Even career State Department officials criticized Trump’s executive orders.
Using a rare “dissent channel” to protest, the officials emphasized that, “We do not need to alienate entire
societies to stay safe. And we do not need to sacrifice our reputation as a nation which is open and welcoming
to protect our families.” 259
The travel ban and extreme vetting will undermine American values by conveying to the world that the United
States is no longer committed to openness and nondiscrimination. They will eat away at our national character
for the sake of speculative national security benefits. The fabric of America depends on equal treatment,
regardless of race, gender, ethnicity, national origin, and religion. And it depends on the Establishment Clause
to separate religion from the state, and the state from religion. Bans and overzealous vetting are unlikely to
provide additional security against terrorism, but will surely corrode the fundamental values that make America
strong and united, and undermine the country’s ability to foster contact, cordiality, and cooperation with people
across the globe. Like the quota system abandoned in 1965, they risk betraying “our basic American tradition” 260
by returning to “a cruel and enduring wrong in the conduct of the American Nation.” 261

CONCLUSION
Given the threat of terrorism, visa issuance decisions must, and do, include strong national security safeguards.
There is no evidence that the U.S. system is not up to the task. In fact, the number of attacks by foreign-born
terrorists in the U.S. is de minimis. Against this backdrop, the Trump administration is taking steps – such as
banning immigrants and visitors from mostly Muslim countries and identifying “populations” that will officially
be deemed risky – that emanate from the religious animus so often expressed by President Trump. This
approach, which is part and parcel of a broader anti-immigrant agenda, is inimical to American economic
interests and fundamental values. It should be rejected as both unnecessary and harmful.

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Endnotes

1

Exec. Order No. 13,769, 82 Fed. Reg. 8977 (January 27, 2017), https://www.gpo.gov/fdsys/pkg/FR-2017-0201/pdf/2017-02281.pdf. The order was enjoined by several courts. Washington v. Trump, No. 17-35105, slip op
(W.D. Wash.), rev’d, 847 F.3d 1151 (9th Cir. Feb. 9, 2017); Aziz v. Trump, 234 F.Supp.3d 724, slip op. (E.D. Va.
Feb. 13, 2017); Hawaii v. Trump, 859 F.3d 741, 771 (9th Cir. 2017), cert. granted sub nom Trump v. Int’l Refugee
Assistance Project, 137 S. Ct. 2080 (2017); Int’l Refugee Assistance Project v. Trump, 241 F.Supp.3d 539 (D. Md.),
rev’d, 857 F.3d 554 (4th Cir. May 25, 2017). In March 2017, it was replaced by Executive Order 13,780, which
removed Iraq from the list of banned countries and included modifications designed to overcome the arguments that
had resulted in injunctions against its predecessor. Exec. Order No. 13,780, 82 Fed. Reg. 13209, 13215 (March 6,
2017), § 5(a), https://www.gpo.gov/fdsys/pkg/FR-2017-03-09/pdf/2017-04837.pdf
2
Proclamation No. 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the
United States by Terrorists or Other Public-Safety Threats,” September 24, 2017, https://s3.amazonaws.com/publicinspection.federalregister.gov/2017-20899.pdf (an unpublished Presidential Document by the Executive Office of
the President).
3
Proclamation No. 9645, 6, § 1(g).
4
David Bier, “A Dozen Times Trump Equated his Travel Ban with a Muslim Ban,” CATO at Liberty (blog), CATO
Institute, August 14, 2017, https://www.cato.org/blog/dozen-times-trump-equated-travel-ban-muslim-ban;
Associated Press, “How Donald Trump’s Plan to Ban Muslim’s Has Evolved,” Fortune, June 28, 2016,
http://fortune.com/2016/06/28/donald-trump-muslim-ban/; Daniella Diaz, “Trump seizes on terror incident to call
for travel ban,” CNN, September 15, 2017, http://www.cnn.com/2017/09/15/politics/donald-trump-london-terroristattack/index.html. Trump has also made it clear that he preferred the original version of the ban reflected in
Executive Order 13769 to the less overtly discriminatory version that he issued in March 2017 in response to court
decisions. Louis Nelson, “Trump slams Justice Department for 'watered down' travel ban,” Politico, June 5, 2017,
http://www.politico.com/story/2017/06/05/trump-travel-ban-justice-department-239131.
5
Jessica Estepa, “’Preventing Muslim immigration’ statement disappears from Trump’s campaign site,” USA Today,
May 8, 2017, https://www.usatoday.com/story/news/politics/onpolitics/2017/05/08/preventing-muslim-immigrationstatement-disappears-donald-trump-campaign-site/101436780/.
6
“Full transcript: Second 2016 presidential debate,” Politico, October 10, 2016,
http://www.politico.com/story/2016/10/2016-presidential-debate-transcript-229519.
7
Donald Trump (@realDonaldTrump), “In any event we are EXTREME VETTING people coming into the U.S. in
order to help keep our country safe. The courts are slow and political!,” Twitter, June 5, 2017, 3:44 a.m.,
https://twitter.com/realdonaldtrump/status/871679061847879682?lang=en. And as Trump has advocated for
extreme vetting, he has done so in conjunction with his proposal to ban Muslims from the country. Ibid.; Lesly
Stahl, “The Republican Ticket: Trump and Pence,” CBS News, July 17, 2016, https://www.cbsnews.com/news/60minutes-trump-pence-republican-ticket/ (In response to a question about his position on Muslim immigration,
Trump states: “Call it whatever you want, change territories, but there are territories and terror states and terror
nations that we're not gonna allow the people to come into our country. And we're gonna have a thing called
‘Extreme vetting.’” And if people wanna come in, there's gonna be extreme vetting.”)
8
Peter Baker, “Trump Supports Plan to Cut Legal Immigration by Half,” New York Times, August 2, 2017,
https://www.nytimes.com/2017/08/02/us/politics/trump-immigration.html?mcubz=1&_r=0.
9
Catherine E. Shoichet, Susannah Cullinane, and Tal Kopan, “U.S. immigration: DACA and Dreamers explained,”
CNN, September 5, 2017, http://www.cnn.com/2017/09/04/politics/daca-dreamers-immigration-program/index.html.
10
“ICE ERO immigration arrests climb nearly 40%,” Department of Homeland Security, accessed September 15,
2017, https://www.ice.gov/features/100-days; Tal Kopan, “ICE: Arrests still up, deportations still down,” CNN,
August 11, 2017, http://www.cnn.com/2017/08/11/politics/trump-administration-deportations/index.html.
11
Anna Brand, “Donald Trump: I would force Mexico to build border wall,” MSNBC, June 28, 2015,

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http://www.msnbc.com/msnbc/donald-trump-i-would-force-mexico-build-border-wall; “President Trump Ranted
For 77 Minutes in Phoenix. Here’s What He Said,” Time, August 23, 2017, http://time.com/4912055/donald-trumpphoenix-arizona-transcript/.
12
Department of State, Implementing Immediate Heightened Screening and Vetting of Visa
Applications, by Rex Tillerson, 17 STATE 24324, ¶ 19, http://fingfx.thomsonreuters.com/gfx/rngs/USAIMMIGRATION/0100409S0N1/Cables.pdf (“In order to ensure that proper focus is given to each application, posts
should generally not schedule more than 120 visa interviews per consular adjudicator/per day.”). The administration
also repealed an Obama-era directive, Executive Order 13597, which required 80 percent of nonimmigrant visa
interviews to be scheduled within three weeks of when applications were received. Exec. Order No. 13,802, 82 Fed.
Reg. 28747 (June 21, 2017), https://www.federalregister.gov/documents/2017/06/26/2017-13458/amendingexecutive-order-13597; Exec. Order No. 13,597, 77 Fed. Reg. 3373 (January 19, 2012),
https://www.gpo.gov/fdsys/pkg/FR-2012-01-24/pdf/2012-1568.pdf.
13
David Bier, “The Trump administration’s stealth attack on legal immigration,” Washington Post, August 28,
2017, https://www.washingtonpost.com/opinions/the-trump-administrations-stealth-attack-on-legalimmigration/2017/08/28/afbf1912-8c04-11e7-8df5-c2e5cf46c1e2_story.html?utm_term=.ca50400f3b91.
14
Hawai'i v. Trump, 241 F. Supp. 3d at 1140; Aziz v. Trump, 234 F.Supp.3d 724, 737 (E.D. Va. Feb. 13, 2017).
15
Hawaii v. Trump, 859 F.3d at 771.
16
Robert Lawson (Professor, Southern Methodist University, Cox School of Business) in discussion with Faiza
Patel (Co-Director, Liberty and National Security Program, Brennan Center for Justice), March 2017. Data from
Lawson’s Ease of Travel for Foreign Visitors Index was also published in: Robert Lawson and Jayme Lemke,
“Travel Visas,” Public Choice 153:1-2, 2012, 17-36; James Gwartney, Robert Lawson, and Joshua Hall, Economic
Freedom of the World: 2016 Annual Report, Fraser Institute, 2016, 182,
280, https://www.fraserinstitute.org/sites/default/files/economic-freedom-of-the-world-2016.pdf.
17
Overstays of temporary visas do make up a significant number of the overall population that is in the United
States without authorization. According to DHS, in 2016, about one percent – or 629,000 – travelers overstayed their
temporary visas and became unauthorized to remain in the United States. Department of Homeland Security, Fiscal
Year 2016 Entry/Exit Overstay Report, Department of Homeland Security, 2017, iv,
https://www.dhs.gov/sites/default/files/publications/Entry%20and%20Exit%20Overstay%20Report%2C%20Fiscal
%20Year%202016.pdf. This does not, however, mean that the front-end process is inadequate but rather points to
the well-recognized need to improve systems for ensuring that travelers leave the country when their visas expire.
Office of Inspector General, DHS Tracking of Visa Overstays is Hindered by Insufficient Technology, OIG-17-56,
Department of Homeland Security, 2017, 21-25, https://www.oig.dhs.gov/sites/default/files/assets/2017/OIG-17-56May17_0.pdf.
18
This review was required by Executive Order 13780. 82 Fed. Reg. 13212, § 2. It was temporarily enjoined by a
federal court as part of the travel ban litigation, but allowed to go forward in June 2017. Hawaii v. Trump, No. 1700050-DKW-KSC at 23 (D. Haw. Mar. 23, 2017); Hawaii v. Trump, 859 F.3d 741.
19
Proclamation No. 9645, 1, 6.
20
Ibid. at 7, § 1(h).
21
Department of State – Bureau of Consular Affairs, “FY 2016 Nonimmigrant Visas Issues,”accessed September
28, 2017, https://travel.state.gov/content/dam/visas/Statistics/Non-ImmigrantStatistics/NIVDetailTables/FY16%20NIV%20Detail%20Table.pdf (100 nonimmigrant visas issued); Department of
State – Bureau of Consular Affairs, “Table XIV: Immigrant Visas Issued at Foreign Service Posts (by Foreign State
Chargeability) (All Categories) Fiscal Years 2007-2016,” accessed September 28, 2017,
https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/FY16AnnualReportTableXIV.pdf (9 immigrant visas issued).
22
David Bier, "New Travel Ban Would Not Have Prevented the Entry of Any Terrorists Since 9/11," Cato Institute ,
September 25, 2017, accessed September 28, 2017, https://www.cato.org/blog/new-travel-ban-wouldve-preventedentry-no-terrorists-911.
23
“Notice of Information Collection Under OMB Emergency Review: Supplemental Questions for Visa
Applicants,” 82 Fed. Reg. 20957 (May 4, 2017), https://www.federalregister.gov/documents/2017/05/04/201708975/notice-of-information-collection-under-omb-emergency-review-supplemental-questions-for-visa. This
initiative was undertaken under Executive Order 13780 (which replaced Executive Order 13769 to better withstand
legal scrutiny), presumably under Section 5 which calls for the development of “uniform baseline for screening and
vetting standards and procedures” for people coming to the U.S. These vetting standards were to be part of a

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program to detect those who: try to enter the country fraudulently; support terrorism, violent extremism, or violence
against groups of people; or may otherwise cause harm after gaining entry. 82 Fed. Reg. 13215, § 5(a).
24
“60-Day Notice of Proposed Information Collection: Supplemental Questions for Visa Applicants,” 82 Fed. Reg.
36,180 (August 3, 2017), https://www.gpo.gov/fdsys/pkg/FR-2017-08-03/pdf/2017-16343.pdf.
25
Visa numbers were taken from the State Department’s website. For source, please see note 142’s citation of
nonimmigrant visa data.
26
Yeganeh Torbati, “Trump administration approves tougher visa vetting, including social media checks,” Reuters,
May 31, 2017, http://www.reuters.com/article/us-usa-immigration-visa/trump-administration-approves-tougher-visavetting-including-social-media-checks-idUSKBN18R3F8; Elizabeth Weise, “U.S. now can ask travelers for
Facebook, Twitter handles,” USA Today, June 1, 2017, https://www.usatoday.com/story/tech/news/2017/06/01/usnow-can-ask-travelers-facebook-twitter-handles/102393236/.
27
A senior DHS official has said the administration was working on an ideological test, and then-DHS Secretary and
current White House Chief of Staff John Kelly admitted that some travelers are asked ideological questions. Laura
Meckler, “Trump Administration Considers Far-Reaching Steps for ‘Extreme Vetting’,” Wall Street Journal, April
4, 2017, https://www.wsj.com/articles/trump-administration-considers-far-reaching-steps-for-extreme-vetting1491303602; Improving Border Security and Public Safety: Hearing Before the S. Comm. On Homeland Security
and Governmental Affairs, 115th Cong. (April 5, 2017) (transcript at 12, available at https://goo.gl/CKvqEN).
28
See Attachment 1: Statement of Objectives, Immigration and Customs Enforcement Office, U.S. Department of
Homeland Security, “Presolicitation Notice, Solicitation No. HSCEMD-17-R-00010, ICE-HIS – Data Analysis
Service Amendment,” FedBizOpps.Gov, posted June 12, 2017, 3:09 PM, accessed September 18, 2017,
https://www.fbo.gov/index?s=opportunity&mode=form&id=3abbda0ebcab146118a6f6a0ec44c2b4&tab=core&_cvi
ew=1; See also ibid, Attachment 2: Background. The “Industry Day” materials prepared by ICE-HIS for this
Presolicitation Notice were obtained and released by The Intercept in August 2017. Sam Biddle and Spencer
Woodman, “These Are the Technology Firms Lining Up to Build Trump’s ‘Extreme Vetting’ Program,” Intercept,
August 7, 2017, https://theintercept.com/2017/08/07/these-are-the-technology-firms-lining-up-to-build-trumpsextreme-vetting-program/.
29
National Travel and Tourism Office, “Table C - Section 1: Total Arrivals, Canada, Mexico, Total Overseas,
Europe Non-Resident Arrivals to the U.S. By world region/country of residence April 2017 (Preliminary*),”
Department of Commerce (spreadsheet), release date September 2017, accessed September 27, 2017,
http://tinet.ita.doc.gov/view/m-2017-I-001/table1.asp.
30
Elaine Glusac, “International Tourism to the U.S. Declined in Early 2017,” New York Times, September 19, 2017,
https://www.nytimes.com/2017/09/19/travel/tourism-united-states-international-decline.html?mcubz=0.
31
Sam Levin, “No African citizens granted visas for African trade summit in California,” Guardian, March 20,
2017, https://www.theguardian.com/us-news/2017/mar/20/no-african-citizens-visas-california-annual-trade-summit.
32
Shelley K. Mesch, “US-Africa Energy Summit at Monona Terrace canceled after visas denied,” Wisconsin State
Journal, September 7, 2017, http://host.madison.com/wsj/business/u-s--africa-energy-summit-at-monona-terracecanceled/article_95fcaff6-6bd3-59e9-86f8-8b5d645a619c.html.
33
Chris Fuchs, “Tibetan Women’s Soccer Team Respond After Being Denied U.S. Visas for Tournament,” NBC
News, March 3, 2017, https://www.nbcnews.com/news/asian-america/denied-visas-u-s-tibet-women-s-soccer-teamhold-n728626; Derek Hawkins, “Afghan girls team can travel to U.S. for robotics contest after being denied visas
twice,” Washington Post, July 13, 2017, https://www.washingtonpost.com/news/morningmix/wp/2017/07/13/afghan-girls-team-can-travel-to-u-s-for-robotics-contest-after-visas-deniedtwice/?utm_term=.fd58135c890a. After being denied twice, and after backlash from human rights advocates, the
Afghan robotics team was allowed to enter the country after the State Department formally requested that DHS grant
the team members “parole,” allowing them one-time entry for humanitarian reasons or “significant public benefit.”
The Gambian team for the same competition was also initially denied and then granted the same exception. Ibid.
34
Anastasia Tsioulcas, “Three More SXSW-Bands Denied Entry Into The U.S.,” NPR, March 13, 2017,
http://www.npr.org/sections/therecord/2017/03/13/520010920/three-more-sxsw-bound-bands-denied-entry-into-theu-s; Padraic Flanagan and Raf Sanchez, “Nigella Lawson barred from boarding US-bound flight,” Telegraph, April
2, 2014, http://www.telegraph.co.uk/news/celebritynews/10740907/Nigella-Lawson-barred-from-boarding-USbound-flight.html.
35
82 Fed. Reg. 13217, at § 11(iii) (references violence against women and “honor killings”); 82 Fed. Reg. 8977, at
§ 1 (“The United States cannot, and should not, admit those who do not support the Constitution … In addition, the
United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms

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of violence against women, or the persecution of those who practice religions different from their own) or those who
would oppress Americans of any race, gender, or sexual orientation…”).
36
Calculated using publicly available data from the U.S. State Department website. Visa Waiver Program countries
are counted as countries from which visas are not required.
37
Ted Hesson, “Trump administration introduces green card hurdle,” Politico, August 25, 2017,
http://www.politico.com/story/2017/08/25/trump-administration-green-card-hurdle-242050; Bier, “The Trump
administration’s stealth attack on legal immigration.”
38
Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, Cato Institute, 2016, No. 798, 5,
https://object.cato.org/sites/cato.org/files/pubs/pdf/pa798_2.pdf.
39
Emmanuelle Saliba, “You’re More Likely to Die Choking Than Be Killed by Foreign Terrorists, Data Show,”
NBC News, February 1, 2017, https://www.nbcnews.com/news/us-news/you-re-more-likely-die-choking-be-killedforeign-terrorists-n715141. Other striking comparative risk statistics: toddlers with guns killed more people than
foreign terrorists in 2015. Christopher Ingraham, “People are getting shot by toddlers on a weekly basis this year,”
Washington Post, October 14, 2015, https://www.washingtonpost.com/news/wonk/wp/2015/10/14/people-aregetting-shot-by-toddlers-on-a-weekly-basis-this-year/?utm_term=.ea27df29d3d1; Kim LaCapria, “Toddlers Killed
More Americans than Terrorists in 2015,” Snopes, accessed September 15, 2017, http://www.snopes.com/toddlerskilled-americans-terrorists/; Gary Younge, “Trump fears terrorists, but more Americans are shot dead by toddlers,”
Guardian, February 8, 2017, https://www.theguardian.com/commentisfree/2017/feb/08/trump-muslim-terroristsgun-violence-america-deaths. Since September 11, 2001, an average American has been as likely to be crushed by a
television or furniture as a terrorist attack. Micah Zenko, “America Is a Safe Place,” Council on Foreign Relations
(blog), February 24, 2012, https://www.cfr.org/blog/america-safe-place.
40
Nowrasteh, Terrorism and Immigration: A Risk Analysis, 13.
41
One possible exception is Mohamad Hadayet, who opened fire at Los Angeles International Airport in 2002. For
more details see, Eddy Rameriz, “Panel Probes LAX Gunman,” Los Angeles Times, October 10, 2002,
http://articles.latimes.com/2002/oct/10/local/me-lax10 (Immigration officials reportedly “doubted Hadayet was a
peaceful man when he requested political asylum in 1992.”).
42
Tashfeen Malik entered the U.S. on July 27, 2014. She and Syed Rizwan Farook perpetrated the San Bernardino
attacks on December 2, 2015 – just under a year and a half after Ms. Malik entered the U.S. Brian Ross et al.,
“Welcome to America: New Photo Shows San Bernardino Terror Couple Entering US,” ABC News, December 7,
2015, http://abcnews.go.com/US/america-photo-shows-terror-couple-entering-us/story?id=35615829.
43
Nowrasteh, Terrorism and Immigration: A Risk Analysis, 8. The statistic takes into account only visas types that
have been used by terrorists to enter the U.S.
44
82 Fed. Reg. 13212, § 1(h) (emphasis added). The order appears to be referencing a study overseen by thenSenator Jeff Sessions, which purportedly shows that there have been more than 380 convictions of foreign-born
people on terrorism-related charges from September 11, 2001 through the end of 2014. Analyses by the Brennan
Center and the Cato Institute have shown that this number is significantly inflated. First, the Sessions study covers
“terrorism-related” charges, which encompass crimes that might start on a terrorism tip but end in something wholly
unrelated – one of the listed cases involves a conviction for receiving stolen cereal shipments, because the initial
investigation stemmed from unfounded information on possible arms purchases. Alex Nowrasteh, “42 Percent of
‘Terrorism-Related’ Convictions Aren’t for Terrorism,” CATO at Liberty (blog), Cato Institute, March 6, 2017,
https://www.cato.org/blog/42-percent-terrorism-related-convictions-arent-terrorism; In fact, only about half of the
convictions included in the Sessions study were actually for terrorism offenses. Andrew Lindsay, “What the Data
Tells Us About Immigration and Terrorism,” Brennan Center for Justice (blog), February 17, 2017,
https://www.brennancenter.org/blog/what-data-tells-us-about-immigration-and-terrorism. And even among the
terrorism convictions included in Sessions’ study, most did not involve any kind of attack in the U.S. but were
charges of “material support” for terrorism, which are cases where money, goods or other resources were provided
to someone associated with a U.S. designated terrorist group. Ibid.
45
Department of Justice, “Former Iraqi Terrorists Living in Kentucky Sentenced for Terrorist Activities,” news
release, January 29, 2013, https://www.justice.gov/opa/pr/former-iraqi-terrorists-living-kentucky-sentencedterrorist-activities.
46
Brief of Former Nat’l Sec. Officials as Amicus Curiae in Support of Plaintiff-Appellees at 8, Hawaii v. Trump,
859 F.3d 741 (no. 16-1540) (Docket No. 108), available at
http://cdn.ca9.uscourts.gov/datastore/general/2017/04/20/1715589%20Former%20National%20Security%20Officials%20Amicus.pdf.

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47

Office of Intelligence & Analysis, U//FOUO: Most Foreign-born, US-Based Violent Extremists Radicalized after
Entering Homeland; Opportunities for Tailored CVE Programs Exist, Department of Homeland Security, IA-009112, 2017, 1, http://i2.cdn.turner.com/cnn/2017/images/03/03/dhs.intell.assessment.pdf.
48
Robert A. Lawson and Saurav Roychoudhury, “Do Travel Visa Requirements Impede Tourist Travel?,” Journal
of Economics and Finance 40:4, 816-828, 825 (2016).
49
Ron Nixon and Jasmine C. Lee, “Getting a Visa to Visit the U.S. Is a Long and Extensive Process for Most,” New
York Times, March 16, 2017, https://www.nytimes.com/interactive/2017/03/16/us/visa-process-united-states.html;
David Muir, Christine Brouwer, and Maggy Patrick, “Made in America: Visa Process Slows Down Tourism,” ABC
News, October 31, 2011, http://abcnews.go.com/US/made-america-visa-process-slowingtourism/story?id=14853459; American Immigration Council, Why Don’t They Just Get In Line? There Is No Line
for Many Unauthorized Immigrants, American Immigration Council, 2016,
https://www.americanimmigrationcouncil.org/sites/default/files/research/why_dont_they_just_get_in_line_and_com
e_legally.pdf.
50
“DS-160 Nonimmigration Visa Application Form: A Complete Step-by-step Instructional Guide,” U.S. Embassy
Kingston, Jamaica (PowerPoint Presentation), https://photos.state.gov/libraries/jamaica/231771/PDFs/DS160%20Instructions.pdf; “Safety & Security of U.S. Borders: Biometrics,” Department of State – Bureau of
Consular Affairs, accessed September 17, 2017, https://travel.state.gov/content/visas/en/general/borderbiometrics.html; “USA Visitor Visa - Visitor Documents,” Immihelp, accessed September 21, 2017,
https://www.immihelp.com/visitor-visa/visitor-documents.html.
51
Immigration and Nationality Act (INA) of June 27, 1952, Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as
amended in scattered sections of 8 U.S.C.).
52
INA § 214 (b) (amended as codified in 8 U.S.C. § 1184 (b) (An applicant “shall be presumed to be an immigrant
until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the
immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status.”). Failure
to meet this burden is by far the most common basis for the denial of a nonimmigrant visa application. “Table XX:
Immigrant and Nonimmigrant Visa Ineligibilities (by Grounds for Refusal Under the Immigration and Nationality
Act) Fiscal Year 2016,” Department of State – Bureau of Consular Affairs, accessed September 18, 2017,
https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/FY16AnnualReportTableXX.pdf (approximately 2.8 million out of 3.7 million findings of nonimmigrant ineligibility in fiscal year 2016
were related to “failure to establish entitlement to nonimmigration status” according to section 214(b) of the INA).
For all visa applications for admission to the U.S. the burden of proof is on the person applying “to the satisfaction
of the consular officer that he is eligible to receive a visa or other document required for entry.” INA § 214 (b)
(codified as amended in 8 U.S.C. § 1361); Department of State, INA 214 (b), Basis of Refusal Not Equivalent to
Inadmissibility or Immigrant Intent, by Collin Powell, UNCLAS STATE 274068, ¶ 9,
http://www.nafsa.org/uploadedFiles/dos_cable_reviews_policy.pdf?n=8421.
53
“Visitor Visa,” Department of State – Bureau of Consular Affairs, accessed September 19, 2017,
https://travel.state.gov/content/visas/en/visit/visitor.html (see section “Additional Documentation May Be
Required”); “Business/Tourist Visa: Supporting Documents,” U.S. Travel Documents, accessed September 19,
2017, http://www.ustraveldocs.com/in/in-niv-typeb1b2.asp#supportingdocs (affiliate of the Department of State).
54
Department of State, “Ineligibilities and Grounds for Refusals,” 9 Foreign Affairs Manual 301.4,
https://fam.state.gov/fam/09FAM/09FAM030104.html (overviewing and linking to instructions for various grounds
of refusal); INA § 212 (a) (codified as amended in 8 U.S.C. § 1182).
55
INA § 214 (b).
56
“Ask the State Department: Andrew Simkin,” Department of State (Archives), modified February 2, 2006,
accessed September 17, 2017, https://2001-2009.state.gov/r/pa/ei/ask/79932.htm.
57
Doris Meissner et al., Immigration Enforcement in the United States: The Rise of a Formidable Machine, Report
in Brief, Migration Policy Institute, 2013, 13, http://www.migrationpolicy.org/pubs/pillars-reportinbrief.pdf.
58
Hearing on “Overturning 30 Years of Precedent: Is the Administration Ignoring the Dangers of Training Libyan
Pilots and Nuclear Scientists,” Before the House Committee on the Judiciary Subcommittee on Immigration and
Border Security and House Committee on Oversight and Government Reform, Subcommittee on National Security,
accessed April 3, 2014, https://www.dhs.gov/news/2014/04/03/written-testimony-plcy-joint-house-judiciary-andhouse-oversight-and-government (written testimony of PLCY Office of International Affairs Assistant Secretary and
Chief Diplomatic Officer Alan Bersin).

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59

Jerome P. Bjelopera, Bart Elias, and Alison Siskind, The Terrorist Screening Database and Preventing Terrorist
Travel, Congressional Research Service, R44678, 2016, 10, https://fas.org/sgp/crs/terror/R44678.pdf. The National
Counterterrorism Center “leads the way for the USG in terms of analyzing, understanding, and responding to the
terrorist threat.” “What We Do,” National Counterterrorism Center, accessed September 22, 2017,
https://www.dni.gov/index.php/nctc-what-we-do.
60
Hearing on “The Homeland Threat Landscape and U.S. Response” Before the S. Comm. On Homeland Security
and Governmental Affairs, November 14, 2013 (testimony of Matthew G. Olsen, Director, National
Counterterrorism Center, available at https://www.hsgac.senate.gov/download/?id=4832A095-4FB4-4686-A6890E14FC665CE9; National Counterterrorism Center, Terrorist Identities Datamart Environment (TIDE) Fact Sheet, ,
accessed September 22, 2017, https://www.dni.gov/files/Tide_Fact_Sheet.pdf (“The Terrorist Identities Datamart
Environment (TIDE) is the US Government’s (USG) central repository of information on international terrorist
identities.”).
61
Department of State, "Briefing on the Current K-1 Visa Screening Process and Review," news release, December
17, 2015, accessed September 22, 2017, https://2009-2017.state.gov/r/pa/prs/ps/2015/12/250747.htm.
62
Hearing on “From the 9/11 Hijackers to Amine El-Khalifi: Terrorists and the Visa Overstay Problem” Before the
House Committee on Homeland Security Subcommittee on Border and Maritime Security, March 6, 2012, 3,
https://homeland.house.gov/files/Testimony%20Donahue.pdf (written statement of David Donahue, Deputy
Assistant Secretary for Visa Services, Department of State).
63
Ibid., 4.; Hearing on “TSC's Role in the Interagency Watchlisting and Screening Process,” Before the House
Homeland Security Committee, Subcommittee on Transportation Security, September 18, 2014,
https://www.fbi.gov/news/testimony/tscs-role-in-the-interagency-watchlisting-and-screening-process (statement by
Christopher M. Piehota, Director, Terrorist Screening Center, Federal Bureau of Investigations).
64
Hearing on “From the 9/11 Hijackers to Amine El-Khalifi: Terrorists and the Visa Overstay Problem” Before the
House Committee on Homeland Security Subcommittee on Border and Maritime Security, March 6, 2012, 1,
https://homeland.house.gov/files/Testimony%20Donahue.pdf (written statement of David Donahue, Deputy
Assistant Secretary for Visa Services, Department of State); Ruth Ellen Wasem, Immigration: Visa Security
Policies, Congressional Research Service, R43589, 2015, 6, https://fas.org/sgp/crs/homesec/R43589.pdf (summary)
65
Hearing on “Marriage Fraud,” Before the Senate Committee on the Judiciary,
https://www.judiciary.senate.gov/imo/media/doc/03-15-17%20Donahue%20Testimony.pdf (written testimony of
David Donahue, Acting Assistant Secretary of State, Bureau of Consular Affairs, Department of State).
66
Please see notes 106 and 107 below for further discussion on the pros and cons of biometric systems as they are
currently employed.
67
“Office of Biometric Identity Management Identification Services,” Department of Homeland Security, accessed
September 17, 2017, https://www.dhs.gov/obim-biometric-identification-services.
68
“Safety & Security of U.S. Borders: Biometrics,” Department of State – Bureau of Consular Affairs, accessed
September 17, 2017, https://travel.state.gov/content/visas/en/general/border-biometrics.html. This is an inflexible
requirement: applicants who arrive at a consulate or embassy to be fingerprinted with cuts or blisters on any of their
fingers or thumbs will not have their application processed. For more details see, for example, “The Interview,”
U.S. Embassy & Consulates in the United Kingdom, accessed September 17, 2017,
https://uk.usembassy.gov/visas/tourism-visitor/the-interview/. Countries whose citizens do not require visas to enter
the U.S. must issue passports that contain biometric identifiers. Department of State – Bureau of Consular Affairs,
“Visa Waiver Program,” accessed September 19, 2017, https://travel.state.gov/content/visas/en/visit/visa-waiverprogram.html (“[Y]ou must have an e-passport to use the VWP.”); “e-Passports,” Department of Homeland
Security, accessed September 19, 2017, https://www.dhs.gov/e-passports (“An e-Passport also contains a biometric
identifier.”).
69
Kenneth Gantt and Jonathan Cantor, Privacy Impact Assessment for the Automated Biometric Identification
System (IDENT), Department of Homeland Security, 2012, 4-5,
https://www.dhs.gov/sites/default/files/publications/privacy/PIAs/privacy_pia_usvisit_ident_appendixj_jan2013.pdf.
Databases of known or suspected terrorists have long been criticized as being bloated and inaccurate, meaning that
many more people are likely to be tagged as positive matches than likely have any connection to terrorism. For
more details see, for example, Jeremy Scahill and Ryan Deveraux, “The Secret Government Rulebook for Labelling
You a Terrorist,” Intercept, July 23, 2014, https://theintercept.com/2014/07/23/blacklisted/; Jeremy Scahill and
Ryan Deveraux, “Watch Commander: Barack Obama’s Secret Terrorist-Tracking System, By the Numbers,”
Intercept, August 5, 2014, https://theintercept.com/2014/08/05/watch-commander/; American Civil Liberties Union,

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U.S. Government Watchlisting: Unfair Process and Devastating Consequences, American Civil Liberties Union,
March 2014, https://www.aclu.org/other/us-government-watchlisting-unfair-process-and-devastating-consequences.
70
Data from Passenger Name Record (PNR) agreement has reportedly been useful to homeland security officials.
For more details see Ten Years After 9/11: Are We Safer?: Hearing Before the S. Comm. on Homeland Security and
Governmental Affairs, 112th Congress 403 (2011) (testimony of Janet Napolitano, former Secretary, Department of
Homeland Security, at 10, available at https://www.hsdl.org/?view&did=733983) (“During 2008 and 2009, PNR
helped the United States identify individuals with potential ties to terrorism in more than 3,000 cases, and in Fiscal
Year 2010, approximately one quarter of those individuals denied entry to the United States for having ties to
terrorism were initially identified through the analysis of PNR.”). However, the sharing of PNR information has
been widely criticized as violating privacy and opening the door to discrimination – in July 2017, the European
Court of Justice struck down a proposed PNR agreement between the E.U. and Canada as contrary to fundamental
EU rights, including those relating to privacy and data protection. Opinion of Advocate General Mengozzi in
Opinion 1/15 (Request for an opinion submitted by the European Parliament), delivered on 8 September 2016,
ECLI:EU:C:2016:656, ¶ 328, https://tinyurl.com/y7abnerj. This suggests that the E.U/U.S. PNR agreement – with
laxer data use and retention restrictions – is in legal danger. Kenneth Propp, “The Coming Threat to Trans-Atlantic
Data Transfer Agreements,” Lawfare, June 8, 2016, https://www.lawfareblog.com/needles-haystacks-comingthreat-trans-atlantic-data-transfer-agreements.
71
Thomas Bush and Mary Ellen Callahan, Privacy Impact Assessment for the Automated Targeting System,
Department of Homeland Security, 2012, 6,
https://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_cbp_ats006b.pdf (the State Department can use ATS-P to
vet visa applications).
72
“FAQ: Administrative Processing,” Maggio+Kattar and the Dickinson School of Law at Pennsylvania State
University, accessed September 17, 2017, http://www.maggiokattar.com/sites/default/files/FAQ%20FINAL%20%282%29_0.pdf.
73
“Administrative Processing Information,” Department of State – Bureau of Consular Affairs, accessed September
17, 2017, https://travel.state.gov/content/visas/en/general/administrative-processing-information.html.
74
Liam Schwartz, Avi Friedman, and Anastasia Tonello, “‘DOs’ And ‘DON’Ts’ For Attorneys Representing Visa
Applicants (And for Consular Officers, Too!),” from Immigration Practice Pointers, American Immigration
Lawyers Association, 2010, 530, http://www.ailawebcle.org/resources/Resources%20for%209-1311%20Seminar.pdf (“Don’t anticipate a quick resolution for a Visas Donkey SAO.”); “Security Advisory
Opinions,” Dinsmore Immigration Law, accessed September 6, 2017,
http://immigration.dinsmore.com/faq/travel/security-advisory-opinions (“Visas Donkey is requested when there is a
direct ‘hit’ on the visa applicant's name in the CLASS system. This type of SAO is requested if, for example, the
applicant's name is a direct match to that of a known terrorist.”).
75
Threats to the Homeland: Hearing Before the S. Comm. On Homeland Security and Governmental Affairs, 113th
Cong. 426 (2013) (testimony of Matthew G. Olsen, Director, National Counterterrorism Center), at 9-10; “Terrorist
Identities Datamart Environment (TIDE),” National Counterterrorism Center, accessed September 17, 2017,
https://www.dni.gov/files/NCTC/documents/features_documents/TIDEfactsheet10FEB2017.pdf.
76
Department of State, “Briefing on the Current K-1 Visa Screening Process and Review.”
77
Additional statements making clear Trump’s intention to keep Muslims out of America can be found in: David
Bier, “A Dozen Times Trump Equated his Travel Ban with a Muslim Ban,” CATO at Liberty (Blog, Cato Institute,
August 14, 2017, https://www.cato.org/blog/dozen-times-trump-equated-travel-ban-muslim-ban; Alan Gomez,
“What President Trump has said about the travel ban,” USA Today, June 11, 2017,
https://www.usatoday.com/story/news/politics/2017/06/11/what-president-trump-has-said-about-muslims-travelban/102565166/; Hawaii v. Trump, 241 859 F.3d 741, at n. 14; Int’l Refugee Assistance Project v. Trump, 15-1351,
at 18-23.
78
Fred Barbash, “Muslim ban language suddenly disappears from Trump campaign website after Spicer questions,”
The Washington Post, May 9, 2017, https://www.washingtonpost.com/news/morning-mix/wp/2017/05/09/trumpspreventing-muslim-immigration-vow-disappears-from-campaign-website-after-spicerquestioned/?utm_term=.0fd2951989b8.

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79

Alan Gomez, “What President Trump has said about the travel ban,” USA Today, June 11, 2017,
https://www.usatoday.com/story/news/politics/2017/06/11/what-president-trump-has-said-about-muslims-travelban/102565166/.
80
“Transcript of the Second Debate,” New York Times, October 10, 2016,

https://www.nytimes.com/2016/10/10/us/politics/transcript-second-debate.html?mcubz=1&_r=0.
81

“Meet the Press – July 24, 2016,” NBC News, July 24, 2016, https://www.nbcnews.com/meet-the-press/meetpress-july-24-2016-n615706.
82
Daniel White, “Read Donald Trump’s Ohio Speech on Immigration and Terrorism,” Time, August 15, 2016,
http://time.com/4453110/donald-trump-national-security-immigration-terrorism-speech/.
83
“Exclusive Interview with Donald Trump,” Anderson Cooper 360 Degrees, CNN, March 9, 2016,
http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html.
84
Mathew Wisner, “Donald Trump Calls for End of Visa Waiver Program,” FOX Business, March 22, 2016,
http://www.foxbusiness.com/politics/2016/03/22/donald-trump-calls-for-end-visa-waiver-program.html.
85
Katie Reilly, “Donald Trump on Proposed Muslim Ban: ‘You Know My Plans,’” Time, December 21, 2016,
http://time.com/4611229/donald-trump-berlin-attack/.
86
Hawaii v. Trump, 241 F.Supp.3d at 1126.
87
Natasha Bertrand, “Giuliani: Trump asked me how to do a Muslim ban ‘legally,” Business Insider, January 29,
2017, http://www.businessinsider.com/giuliani-trump-asked-me-how-to-do-a-muslim-ban-legally-2017-1.
88
“Adjusted Refusal Rate – B-Visas Only by Nationality Fiscal Year 2016,” Department of State, accessed
September 17, 2017, https://travel.state.gov/content/dam/visas/Statistics/Non-ImmigrantStatistics/RefusalRates/FY16.pdf.
89
Department of State, “Timeliness of Interview,” 9 Foreign Affairs Manual 504.7-2(b), available at
https://fam.state.gov/fam/09FAM/09FAM050407.html. Though temporary visa interviews typically last a few
minutes, the State Department estimates that applicants will spend a longer time at the consulate while application
materials are reviewed and processed. For more details see, for example, “Day of the Interview,” U.S. Embassy &
Consulates in the United Arab Emirates, accessed September 19, 2017, https://uk.usembassy.gov/visas/tourismvisitor/the-interview/. Moreover, the interview is highly significant because it is the point when pieces of the
application come together to give the adjudicator a chance to verify claims within provided materials and fill in
informational gaps. The process is not perfunctory: consular officers must take notes, and create a “detailed record
of the interview” when decisions are difficult or controversial so that “the basis for final action can be fully
documented.” Department of State, “How to Conduct Visa Interviews,” 9 Foreign Affairs Manual 403.5 -3,
https://fam.state.gov/searchapps/viewer?format=html&query=u&links=U&url=/FAM/09FAM/09FAM040305.html.
90
“Ask the State Department: Andrew Simkin,” Department of State (Archives) (“The techniques that consular
officers use to fight fraud are varied. Probably the best technique is simple: the personal interview.”).
91
Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3735 Sec. 5301 (2004)
(requires, subject to such limited exceptions, “every alien applying for a nonimmigrant visa” between the ages of 14
and 79 to be interviewed); The Security of U.S. Visa Programs: Hearing Before the S. Comm. on Homeland Security
and Governmental Affairs, 114th Cong. (2016) (written statement of David T. Donahue, Principal Deputy Assistant
Secretary for Consular Affairs, Department of State, available at https://www.hsdl.org/?view&did=796753) (“The
vast majority of visa applicants are interviewed by a consular officer.”).
92
Intelligence Reform and Terrorism Prevention Act of 2004; The Security of U.S. Visa Programs: Hearing Before
the S. Comm. on Homeland Security and Governmental Affairs, 114th Cong. (2016) (written statement of David T.
Donahue, Principal Deputy Assistant Secretary for Consular Affairs, Department of State).
93
The Security of U.S. Visa Programs: Hearing Before the S. Comm. on Homeland Security and Governmental
Affairs, 114th Cong. (2016) (written statement of David T. Donahue, Principal Deputy Assistant Secretary for
Consular Affairs, Department of State, at 5-6).
94
“Ask the State Department: Andrew Simkin,” Department of State (Archives); Department of State, “Interview by
Consular Officer,” 9 Foreign Affairs Manual 504.7-3(A)(d), https://fam.state.gov/fam/09FAM/09FAM050407.html.
95
Kerry v. Din, 135 U.S. 2128, 2141 (2015). For a detailed explanation of the doctrine of consular nonreviewability
as applied in Kerry v. Din see Jungmin Choi, “Doctrine of Consulate Nonreviewability After Kerry v. Din,”
Law360, November 18, 2015, https://www.law360.com/articles/728556/doctrine-of-consulate-nonreviewabilityafter-kerry-v-din. However, consular managers are supposed to review as many nonimmigrant visa denials as
possible, but not fewer than 20 percent of them – this is intended to “ensure uniform and correct application of law

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and regulations.” Department of State, “(U) NIV Refusal Review Procedures,” 9 Foreign Affairs Manual 403.103(D)(1), https://fam.state.gov/fam/09FAM/09FAM040310.html.
96
Donald Trump, “Full text: Donald Trump’s speech on fighting terrorism,” Politico, August 15, 2016,
http://www.politico.com/story/2016/08/donald-trump-terrorism-speech-227025; Donald Trump, “Transcript of
Donald Trump’s Immigration Speech,” New York Times, September 1, 2016,
https://www.nytimes.com/2016/09/02/us/politics/transcript-trump-immigration-speech.html?mcubz=1&_r=0.
97
Proclamation No. 9645, 5, § 1(c)(iii).
98
Donald Trump (@realdonaldtrump), “In any event we are EXTREME VETTING people coming into the U.S. in
order to help keep our country safe. The courts are slow and political!,” Twitter, June 5, 2017, 3:44 a.m.,
https://twitter.com/realdonaldtrump/status/871679061847879682?lang=en; “President Trump Ranted for 77 Minutes
in Phoenix. Here’s What He Said,” Time; Office of the Press Secretary, “Press Briefing by Principal Deputy Press
Secretary Sarah Sanders and VA Secretary David Shulkin, 6/5/2017,” White House, June 5, 2017,
https://www.whitehouse.gov/the-press-office/2017/06/05/press-briefing-principal-deputy-press-secretary-sarahsanders-and-va (Deputy Press Secretary Sarah Sanders: “Extreme vetting is taking place.”).
99
This is not intended to suggest that the current system operates free of prejudice. Immigration advocates have
pointed out that the criteria used to individually vet travelers already operate to disproportionally flag Muslims
travelers for further scrutiny. Schwartz, Friedman, and Tonello, “‘DOs’ And ‘DON’Ts’ For Attorneys Representing
Visa Applicants (And for Consular Officers, Too!),” at 530 (“A [person] with the name “Mohammad Khan” or
“Muhammad Ali” will very likely be subject to a Donkey clearance.”). However, Trump administration policies
appear to reinforce and institutionalize bias.
100
The information in Table II is drawn from § 2 of Proclamation No. 9645.
101
Exec. Order 13780, 82 Fed. Reg. 13,209, 13,212 (§ 2(b)) (March 6, 2017). Countries are also required to “accept
the repatriation of their nationals who are subject to a final order of removal in the United States and provide travel
documents to facilitate their removal.” 17 STATE 7200, ¶ 9. Recently, the administration announced that it would
not issue certain visas to citizens of Cambodia, Eritrea, Guinea, and Sierra Leone for failure to allow for such
repatriation. Department of Homeland Security, “DHS Announces Implementation of Visa Sanctions on Four
Countries,” released September 13, 2017, accessed September 19, 2017, https://www.dhs.gov/news/2017/09/13/dhsannounces-implementation-visa-sanctions-four-countries.
102
17 STATE 7200, ¶ 5 (“The [information sharing] standards [related to identity management and security and
public safety threats] reflect a mix of long-standing U.S. government goals and standards established by
international bodies such as the United Nations (UN), the International Civil Aviation Organization (ICAO), and
INTERPOL.”)
103
A series of U.N. Security Council resolutions relating to preventing terrorism encourage states to crack down on
travel document fraud, enhance law enforcement coordination, and exchange information on threats. 17 STATE
7200, ¶ 9 (“These standards … reinforce UN Security Council Resolutions 1373, 1624, 2178, and 2322, which call
on all member states to cooperate in sharing information on the movements of terrorists and require all states to
prevent the movement of terrorists or terrorists groups through effective border controls and controls on the issuance
of identity papers and travel documents.”); For more details see also S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept.
28, 2001); S.C. Res. 1624, U.N. Doc. S/RES/1624 (Sept. 14, 2005); S.C. Res. 2322, U.N. Doc. S/RES/2322, (Dec.
12, 2016). Improving such cooperation was also a key recommendation of the 9/11 Commission. 9/11 Commission,
9/11 Commission Report, 2004, 389, https://www.9-11commission.gov/report/911Report.pdf.
104
9/11 Commission, 9/11 Commission Report, 389 (“The international community arrives at international standards
for the design of passports through the International Civil Aviation Organization (ICAO)…We must work with
others to improve passport standards and provide foreign assistance to countries that need help in making the
transition.”); Ten Years after 9/11: Preventing Terrorist Travel (written statement of Janice Jacobs, Assistant
Secretary of State for Consular Affairs, Dept. of State, at 21, available at
http://www.hsgac.senate.gov/download/2011-07-13-jacobs-testimony) (“With International Civil Aviation
Organization (ICAO) member passport-issuing authorities around the globe, we have strived to ensure that, as with
the U.S. passport, other issuing authorities meet internationally established standards for security and
interoperability.”). ICAO-compliant passports are required to use the Visa Waiver Program. Department of State –
Bureau of Consular Affairs, “Visa Waiver Program” (“[Y]ou must have an e-passport to use the VWP.”).
105
“ePassport Validation,” International Civil Aviation Organization, accessed September 20, 2017,
https://www.icao.int/Security/FAL/PKD/Pages/ePassport-Validation.aspx; “ePassport Basics,” International Civil
Aviation Organization, accessed September 20, 2017,

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https://www.icao.int/Security/FAL/PKD/Pages/ePassportBasics.aspx.https://www.icao.int/Security/FAL/PKD/Pages
/ePassportBasics.aspx.
106
While a full discussion of criticisms of these mechanisms is outside the purview of this report, we note two
important issues here. First, there are privacy and civil liberties concerns that are associated with the increased
collection of biometric data and expansion of terrorist watchlisting capabilities enabled by greater access to
information on those labeled by foreign governments as terrorist threats. For more details see, for example,
“Biometrics,” American Civil Liberties Union, accessed September 19, 2017, https://www.aclu.org/issues/privacytechnology/surveillance-technologies/biometrics; Editors, “Biometric Security Poses Huge Privacy Risks,” Scientific
American, January 1, 2014, https://www.scientificamerican.com/article/biometric-security-poses-huge-privacyrisks/; Hugh Handeyside, “Numbers Tell the Story of Our Government’s Watchlisting Binge,” American Civil
Liberties Union (blog), August 6, 2014, https://www.aclu.org/blog/national-security/numbers-tell-story-ourgovernments-watchlisting-binge?redirect=blog/numbers-tell-story-our-governments-watchlisting-binge; Katitza
Rodriguez, “Biometric National IDs and Passorts: A False Sense of Security,” Electronic Frontier Foundation
(blog), June 19, 2012, https://www.eff.org/deeplinks/2012/06/biometrics-national-id-passports-false-sense-security.
Second, there are outstanding operational issues with the International Civil Aviation Organization (ICAO)prescribed technical standards, and their more harmonized application across countries is required to ensure that
accompanying security benefits are fully realized. For more details see, for example, Daniel Morgan and William
Krouse, Biometric Identifiers and Border Security: 9/11 Commission Recommendations and Related Issues,
Congressional Research Service, RS21916, 2005, 6, https://fas.org/sgp/crs/homesec/RS21916.pdf; Antonia Rana
and Luigi Sportiello, “Implementation of security and privacy in ePassports and the extended access control
infrastructure,” International Journal of Critical Infrastructure Protection 7:4, December 2014, 233-243, 242,
http://www.sciencedirect.com/science/article/pii/S1874548214000614#bib1. Increased compliance with global
standards, as the administration’s “worldwide review” seeks to obtain, and a focus on improving the accuracy and
security of biometric technology could address the latter set of concerns, but do not appear designed to address the
need for privacy and due process safeguards.
107
For more details see Raymond Benjamin, Secretary General, Doc 9303, Machine Readable Travel Documents
Part 9 – Deployment of Biometric Identification and Electronic Storage of Data in MRTDs, International Civil
Aviation Organization, 2015, 4, https://www.icao.int/publications/Documents/9303_p9_cons_en.pdf (“Biometrics
can be used in the identification function to improve the quality of the background checking performed as part of the
passport, visa or other travel document application process, and they can be used to establish a positive match
between the travel document and the person who presents it.”); “Biometrics,” National Institute of Standards and
Technology, modified July 13, 2017, accessed September 17, 2017, https://www.nist.gov/programsprojects/biometrics; “Why use of biometrics?” Government of Canada, modified October 19, 2012, accessed
September 17, 2017, http://www.cic.gc.ca/english/department/biometrics-why.asp; “Biometrics,” Department of
Homeland Security, modified February 6, 2017, accessed September 17, 2017, https://www.dhs.gov/biometrics.
108
“ePassport Basics,” International Civil Aviation Organization, accessed September 26, 2017,
https://www.icao.int/Security/FAL/PKD/Pages/ePassportBasics.aspx; “ICAO PKD Participants,” International Civil
Aviation Organization, accessed September 17, 2017, https://www.icao.int/Security/FAL/PKD/Pages/ICAOPKDParticipants.aspx.
109
Comptroller and Auditor General, Identity and Passport Service: Introduction of ePassports, National Audit
Office, 2007, 14, https://www.nao.org.uk/wp-content/uploads/2007/02/0607152.pdf (In the U.K., ePassports set-up
cost £63 million between 2005 to 2006, which was roughly a third of the £195 million allocated for passport
production for the next five tears.); David Lewis, “Congo’s pricey passport scheme sends millions of dollars
offshore,” Reuters, April 13, 2017, http://www.reuters.com/investigates/special-report/congo-passports/ (In the
Democratic Republic of Congo, contracts to produce of biometric passports were worth over $200 million, though
the process was graft-ridden.); Isobel Leybold-Johnson, “Switzerland launches biometric passport,” Swissinfo.ch,
modified February 9, 2010, accessed September 21, 2017, https://www.swissinfo.ch/eng/switzerland-launchesbiometric-passport/8233316.
110
“ICAO PKD Participants,” International Civil Aviation Organization.
111
Ibid.
112
17 STATE 7200, ¶ 9.
113
Passport Fraud: An International Vulnerability: Hearing Before the Subcomm. on Border and Maritime Security
of the H. Comm. On Homeland Security, 113th Cong. 62 (2014) (statement of Shawn Bray, Director, Interpol
Washington, at 1-2, available at http://docs.house.gov/meetings/HM/HM11/20140404/102057/HHRG-113-HM11-

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Wstate-BrayS-20140404.pdf).
114
For more details see, for example, Passport Fraud: An International Vulnerability (testimony of Alan D. Bersin,
Assistant Secretary for International Affairs, Dept. of Homeland Security, and John P. Wagner, Acting Deputy
Assistant Commissioner, U.S. Customs and Border Protection, at 2, 6, available at
http://docs.house.gov/meetings/HM/HM11/20140404/102057/HHRG-113-HM11-Wstate-BersinA-20140404.pdf).
115
Ibid. Obama administration officials had characterized the attainment of consistent reporting on stolen and lost
passports from a range of wealthier countries as a “milestone.” Ten Years after 9/11: Preventing Terrorist Travel
(testimony of David Heyman, Assistant Secretary for Policy, Dept. of Homeland Security, available at
https://www.dhs.gov/news/2011/07/13/testimony-david-heyman-assistant-secretary-policy-senate-committeehomeland-security).
116
Passport Fraud: An International Vulnerability (statement of Shawn Bray, Director, Interpol Washington, 5,
available at http://docs.house.gov/meetings/HM/HM11/20140404/102057/HHRG-113-HM11-Wstate-BrayS20140404.pdf).
117
17 STATE 7200, ¶ 12.
118
Consolidated Appropriations Act of 2016, Pub. L. No. 114-113, Div. O, Title II, § 204(c) (codified as amended in
8 U.S.C. 1187(c)(2)(F)); Government Accountability Office, Visa Waiver Program: DHS Should Take Steps to
Ensure Timeliness of Information Needed to Protect U.S. National Security, GAO-16-498, Government
Accountability Office, 2016, 1-2, 8, https://www.gao.gov/assets/680/676948.pdf.
119
U.S. Department of State Counterterrorism Bureau: The FY 2018 Budget, 115th Cong. 516 (2017) (written
statement for the Record of Nathan A. Sales, Coordinator for Counterterrorism, Dept. of State, at 4, available at
https://www.hsgac.senate.gov/download/?id=F40AF2FB-8D9A-4A67-B9B8-EF13120E29F5) (noting that the U.S.
Government has signed “over 60” HSPD-6 model agreements [which facilitate terrorism-related information
sharing]); “International Engagement Results: Information Sharing,” Department of Homeland Security, accessed
September 15, 2017, https://www.dhs.gov/international-engagement-results (noting that 37 countries have
completed versions of Preventing and Combating Serious Crime Agreements [which facilitate criminal record
information sharing]).
120
The Visa Waiver Program, 114th Cong. 516 (2015) (testimony of Mark Koumans, Deputy Assistant Secretary for
International Affairs, Dept. of Homeland Security, and Maureen Dugan, Deputy Executive Director, National
Targeting Center, U.S. Customs and Border Protection, at 1-2, 6, available at
https://www.hsgac.senate.gov/hearings/visa-waiver-program-implications-for-us-national-security) (“The VWP and
all its elements are a vital part of a robust travel security program.”).
121
“U.S. Visa Waiver Program: Initial and Continuing Designation Requirements,” Department of Homeland
Security, accessed September 20, 2017, https://www.dhs.gov/visa-waiver-program; Government Accountability
Office, Visa Waiver Program: DHS Should Take Steps to Ensure Timeliness of Information Needed to Protect U.S.
National Security.
122
17 STATE 72000 (July 12, 2017), ¶ 6 (The State Department has told missions that “designated categories of
foreign nationals” from countries that do not “provide[] the information requested or…an adequate plan” to provide
it could be barred from entering United States). However, as mentioned in note 101, this administration has imposed
similar travel sanctions for failure of countries to accept repatriation of their nationals. Department of Homeland
Security, “DHS Announces Implementation of Visa Sanctions on Four Countries.”
123
H.R. Rep. No. 85-1199, pt. 2 (1957), reprinted in 1957 U.S.C.C.A.N. 2016, 2020 (“The legislative history of the
immigration and nationality act clearly indicates that the congress intended to provide for a liberal treatment of
children and was concerned with the problem of keeping families of united states citizens and immigrants united.”);
“United States Citizenship and Immigration Services, Green Card for Family Members of a Permanent Resident,”
U.S. Citizenship and Immigration Services, accessed September 26, 2017,
https://my.uscis.gov/exploremyoptions/family_member_green_card (“To promote family unity, immigration law …
certain eligible family members to obtain immigrant visas to come and live permanently in the United States…”);
Gabriel “Jack” Chin, “The Civil Rights Revolution Comes to Immigration Law: A New Look at the Immigration
and Nationality Act of 1965,” North Carolina Law Review 75:273, 1996, 297-298; Peter Margulies, “The New
Travel Ban: Undermining the Immigration and Nationality Act,” Lawfare (blog), September 25, 2017, accessed
September 26, 2017, https://www.lawfareblog.com/new-travel-ban-undermining-immigration-and-nationality-act
(“For decades, family reunification has been a central goal of the INA, which removed national origin quotas that
had been in place for forty years.”).
124
Jie Zone and Jeanne Batalova, “Green-Card Holders and Legal Immigration to the United States,” Migration

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Policy Institute, October 1, 2015, http://www.migrationpolicy.org/article/green-card-holders-and-legal-immigrationunited-states (“During the last decade, family-based immigration has represented between 60 percent and 70 percent
of total lawful permanent immigration.”).
125
Trump v. Int'l Refugee Assistance Project, 137 S. Ct. 2080, 2087–88, 198 L. Ed. 2d 643 (2017) (recognizing the
delay of entry into the U.S. of plaintiffs’ family members caused by Executive Order 13780 as a legal harm).
126
Ibid.
127
Proclamation No. 9645, 9, § 1(h)(ii).
128
“The Immigrant Visa Process,” Department of State – Bureau of Consular Affairs, accessed September 26, 2017,
https://travel.state.gov/content/visas/en/immigrate/immigrant-process.html.
129
Bier, “The Trump administration’s stealth attack on legal immigration.”
130
The Immigrant Visa Process,” Department of State – Bureau of Consular Affairs.
131
Nora Ellingsen and Lisa Daniels, "What the Data Really Shows About Terrorists Who "Came Here," Part II: A
Country-by-Country Analysis," Lawfare, April 11, 2017, https://www.lawfareblog.com/what-data-really-showabout-terrorists-who-came-here-part-ii-country-country-analysis.
132
Passport Fraud: An International Vulnerability (testimony of Alan D. Bersin, Assistant Secretary for
International Affairs, Dept. of Homeland Security, and John P. Wagner, Acting Deputy Assistant Commissioner
U.S. Customs and Border Protection, 3, available at
http://docs.house.gov/meetings/HM/HM11/20140404/102057/HHRG-113-HM11-Wstate-BersinA-20140404.pdf)
(“[S]ome of the most populous countries in the world including China, India, and Indonesia, have contributed few—
if any—records to the SLTD database.”); Passport Fraud: An International Vulnerability (statement of Brenda
Sprague, Deputy Assistant Secretary for Passport Services, 5, available at
http://docs.house.gov/meetings/HM/HM11/20140404/102057/HHRG-113-HM11-Wstate-SpragueB-20140404.pdf)
(“We believe approximately 70 percent of the SLTD’s current data comes from VWP [Visa Waiver Program]
countries.”).
133
For more details see, for example, Government Accountability Office, Visa Waiver Program: DHS Should Take
Steps to Ensure Timeliness of Information Needed to Protect U.S. National Security, 15-17. Signing HSPD-6 and
PCSC agreements are among the preconditions for participating in the Visa Waiver Program, whose participants are
overwhelmingly developed, European countries. GAO found that, as of May 2016, about a third of these countries
were not sharing information as those agreements require. Ibid, 11, 14.
134
Nahal Toosi and Ted Hesson, “New directive may expand Trump travel ban,” Politico, July 13, 2017,
http://www.politico.com/story/2017/07/13/trump-travel-ban-could-soon-be-applied-worldwide-240539.
135
For examples of articulated concerns, see “Trump Vetting Review Could Lead to ‘Backdoor’ Travel Ban,” USA
Today, June 22, 2017, https://www.usatoday.com/story/news/world/2017/06/22/trump-vetting-review-backdoortravel-ban/419213001/.
136
Proclamation No. 9645, 6, § 1(e).
137
Ibid. at 6, § 1(g).
138
Ibid. at 10, § 1(i) (“Somalia generally satisfies the information-sharing requirements of the baseline described in
subsection (c) of this section…”).
139
Amy Davidson Sorkin, "What Does Trump's New Travel Ban Mean For the Supreme Court," New Yorker,
September 25, 2017, https://www.newyorker.com/news/amy-davidson-sorkin/what-does-trumps-new-travel-banmean-for-the-supreme-court.
140
Proclamation No. 9645, 9, § 1(h)(iii).
141
Hawaii v. Trump, 241 F.Supp.3d at 1129.
142
This table includes figures on total nonimmigrant U.S. visa types issued to foreign states. Department of State –
Bureau of Consular Affairs, “FY 2016 Nonimmigrant Visas Issues,”accessed September 26, 2017,
https://travel.state.gov/content/dam/visas/Statistics/Non-ImmigrantStatistics/NIVDetailTables/FY16%20NIV%20Detail%20Table.pdf. This table includes figures on U.S. immigrant
visas issued to foreign states. Department of State – Bureau of Consular Affairs, “Table XIV: Immigrant Visas
Issued at Foreign Service Posts (by Foreign State Chargeability) (All Categories) Fiscal Years 2007-2016,” accessed
September 26, 2017,
https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/FY16AnnualReportTableXIV.pdf. Data from the tables above were used in combination with the visa issuance types exempted from
Executive Order 13780 and Proclamation 9645 to calculate the total number of individuals in the new policy banned
from entry.

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143

Ibid.
Proclamation No. 9645, 14-15, § 2(f)(ii).
145
Ibid. at 9-10, § 1(h)(iii).
146
Ibid. at 6-7, 12, 16, §§ 1(g), 2(b), 2(h).
147
Yeganeh Torbati, Mica Rosenberg, and Arshad Mohammed, “Exclusive: U.S. embassies ordered to identify
population groups for tougher visa screening,” Reuters, March 23, 2017, http://www.reuters.com/article/us-usaimmigration-visas-exclusive/exclusive-u-s-embassies-ordered-to-identify-population-groups-for-tougher-visascreening-idUSKBN16U12X.
148
82 Fed. Reg. 36,180 (August 3, 2017).
149
Ibid.
150
Department of State, “Table XVIII Nonimmigrant Visas Issued by Nationality (Including Border Crossing Cards)
Fiscal Year 2007-2016,” Report of the Visa Office 2016,
https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/FY16AnnualReportTableXVIII.pdf. Please see note 142 for reference to immigrant visa data.
151
“FY 2016 Nonimmigrant Visas Issues,” Department of State – Bureau of Consular Affairs; “Table XIV:
Immigrant Visas Issued at Foreign Service Posts (by Foreign State Chargeability) (All Categories) Fiscal Years
2007-2016,” Department of State – Bureau of Consular Affairs; Alex Nowrasteh, “New Trump Executive Order
Fails Cost-Benefit Test,” Cato at Liberty (blog), Cato Institute, September 25, 2017,
https://www.cato.org/blog/new-trump-executive-order-fails-cost-benefit-test.
152
17 STATE 24324, ¶ 9-14. These new vetting requirements came about through a series of State Department
Cables starting March 10, 2017, and Information Collection Requests posted in the Federal Register memorializing
aspects of those cables. The first two cables initially implemented the order in whole, but State Department in a
subsequent cable halted instructions applicable specifically to nationals of the travel ban countries after the District
of Hawaii enjoined Sections 2 and 6 of Executive Order 13780. The final cable of this series largely reaffirmed
previous guidance but told consular officers to hold off on asking applicants specific questions highlighted in the
previous cables – for example, for 15 years of travel history – until Office of Management and Budget (OMB)
approval was received for those questions. Torbati, Rosenberg, and Mohammed, “Exclusive: U.S. embassies
ordered to identify population groups for tougher visa screening.” Those questions were provisionally approved
through OMB on May 25, 2017 valid through November 2017, and were submitted for permanent approval on
August 3, 2017. The initial period for public comments on the information collection was set to expire on October 2,
2017. 82 Fed. Reg. 20,956 (May 4, 2017); 82 Fed. Reg. 36,180 (August 3, 2017).
153
Brief of Former Nat’l Sec. Officials as Amicus Curiae in Support of Plaintiff-Appellees at 13, 28, Hawaii v.
Trump, 859 F.3d 741 (2017).
154
Department of Homeland Security, “Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United
States,” Draft Report Obtained by Associated Press, February 24, 2017,
https://assets.documentcloud.org/documents/3474730/DHS-intelligence-document-on-President-Donald.pdf.
155
Int'l Refugee Assistance Project v. Trump, 857 F.3d at 596; Hawaii v. Trump, 859 F.3d at 771.
156
Faiza Patel and Meghan Koushik, Countering Violent Extremism, Brennan Center for Justice, 2017, 10-11,
https://www.brennancenter.org/sites/default/files/publications/Brennan%20Center%20CVE%20Report.pdf.
157
“Letter from Foreign Policy Experts on Travel Ban,” New York Times, March 11, 2017,
https://www.nytimes.com/interactive/2017/03/11/us/politics/document-letter-foreign-policytrump.html?mtrref=www.nytimes.com. Indeed, pro-ISIS social media accounts are reportedly already using the
Muslim ban vindicate the claim that the U.S. is at war with Islam and stoke anti-American sentiments. Joby
Warrick, “Jihadist groups hail Trump’s travel ban as a victory,” Washington Post, January 29, 2017,
https://www.washingtonpost.com/world/national-security/jihadist-groups-hail-trumps-travel-ban-as-avictory/2017/01/29/50908986-e66d-11e6-b82f-687d6e6a3e7c_story.html?utm_term=.b834ad9dbe23.
158
Glenn Kessler, “Trump’s Claim that Obama First ‘Identified’ the 7 Countries in his Travel Ban,” Washington
Post, February 7, 2017, https://www.washingtonpost.com/news/fact-checker/wp/2017/02/07/trumps-claim-thatobama-first-identified-the-seven-countries-in-his-travel-ban/?utm_term=.164ad2ca02b0.
159
“Visa Waiver Program,” Department of State – Bureau of Consular Affairs.
160
Ibid. “Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria” are not eligible for visafree travel to the U.S.
161
David Inserra, “EU threatens retaliation against U.S. travelers,” Washington Times, March 21, 2016,
http://www.washingtontimes.com/news/2016/mar/21/david-inserra-eu-threatens-retaliation-against-us-/.
144

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162

Sarah Parvini, “Silicon Valley Fears European Backlash After Congress Limits Visa Waiver Program,” Los
Angeles Times, March 14, 2016, http://www.latimes.com/local/california/la-me-visa-waiver-changes-20160314story.html;
163
Office of U.S. Senator Jeff Flake, "Senators to Introduce Bipartisan Fix to Dual National Visa Waiver Ban,"
news release, January 13, 2016, accessed September 19, 2017,
https://www.flake.senate.gov/public/index.cfm/2016/1/senators-to-introduce-bipartisan-fix-to-dual-national-visawaiver-ban.
164
Deirdre Walsh, “House Passes Visa Waiver Overhaul,” CNN, December 8, 2015,
http://www.cnn.com/2015/12/08/politics/visa-waiver-program-house/index.html.
165
Applicants are asked to provide these details if the officer believes they “have been in an area while the area was
under the operational control of a terrorist organization.” 82 Fed. Reg. 36,181 (August 3, 2017). As the ACLU has
pointed out, however, there is no information on how an officer will determine that it “appears” that the applicant
was in a region which was under the operational control of a terrorist organization while the applicant was there.
American Civil Liberties Union, Comment Submission Regarding Notice of Information Collection under OMB
Review: Supplemental Questions for Visa Applicants for Department of State Office of Information and Regulatory
Affairs and Visa Office, Bureau of Consular Affairs, May 18, 2017, 3, https://www.aclu.org/other/aclu-commentsupplemental-questions-visa-applicants.
166
17 STATE 24324, ¶ 7. Paragraph 7 of this cable instructs consular officers to consider sending a “Donkey
Security Advisory Opinion (SAO) request” for populations warranting additional scrutiny as identified by the
process described in Paragraph 6. In same paragraph, the additional questions are described as part of the process for
“SAO requests based on this guidance, as for all other SAO requests.” Ibid. The American Immigration Lawyers
Association estimates Donkey SAOs will take 10-14 weeks to resolve. Schwartz, Friedman, and Tonello, “‘DOs’
And ‘DON’Ts’ For Attorneys Representing Visa Applicants (And for Consular Officers, Too!),” at 530.
167
82 Fed. Reg. 36,180 (August 3, 2017).
168
"Syria Iraq: The Islamic State militant group," BBC News, August 2, 2014, accessed September 21, 2017,
http://www.bbc.com/news/world-middle-east-24179084.
169
U.S. Office of Personnel Management, “Questionnaire For National Security Positions,” Standard Form 86 OMB
No. 3206 0005, revised December 2010, accessed September 6, 2017, https://www.opm.gov/forms/pdf_fill/sf86non508.pdf.
170
“Agency Information Collection Activities: Arrival and Departure Record (Forms I–94 and I–94W) and
Electronic System for Travel Authorization,” 81 Fed. Reg. 40,892, 40,893 (June 23, 2016),
https://www.gpo.gov/fdsys/pkg/FR-2016-06-23/pdf/2016-14848.pdf; Edward Helmore, “US Government
Collecting Social Media Information from Foreign Travelers,” Guardian, December 26, 2016,
https://www.theguardian.com/world/2016/dec/26/us-customs-social-media-foreign-travelers; John Roth, Inspector
General, DHS’ Pilots for Social Media Screening Need Increased Rigor to Ensure Scalability and Long-term
Success (Redacted), Department of Homeland Security, 2017, 2-3,
https://www.oig.dhs.gov/sites/default/files/assets/2017/OIG-17-40-Feb17.pdf.
171
82 Fed. Reg. 36,180 (August 3, 2017).
172
Superseding 17 STATE 24324: Implementing Immediate Heightened Screening and Vetting of Visa Applications,
by Rex Tillerson, 17 STATE 25814, ¶ 9-10, http://live.reuters.com/Event/Live_US_Politics/791255396;
Department of State, Foreign Affairs Handbook, 7-FAH-1 H-943.5-2 (not publicly disclosed).
173
Roth, Inspector General, DHS’ Pilots for Social Media Screening Need Increased Rigor to Ensure Scalability and
Long-term Success (Redacted).
174
For further discussion of this issue, see Letter to Department of State Office of Information and Regulatory
Affairs and Bureau of Consular Affairs, Visa Office, dated May 18, 2017, 4,
https://www.brennancenter.org/sites/default/files/analysis/State%20Dept%20Information%20Collection%20Comme
nts%20-%2051817_3.pdf; Aaron Cantu and George Joseph, “Trump’s Border Security May Search Your Social
Media by ‘Tone,’” Nation, August 23, 2017, https://www.thenation.com/article/trumps-border-security-may-searchyour-social-media-by-tone/, (“[in most tone analysis systems,] the term ‘trump’ indicates positive feeling, something
which is likely no longer true for a sizable number of Americans.”).
175
"Caution on Twitter urged as tourists barred from US," BBC News, March 08, 2012,
http://www.bbc.com/news/technology-16810312.
176
See, e.g., Natasha Lennard, “The Way Dzhokhar Tsarnaev’s Tweets Are Being Used in the Boston Bombing
Trial Is Very Dangerous,” Splinter, March 12, 2015, http://splinternews.com/the-way-dzhokhar-tsarnaevs-tweets-

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are-being-used-in-the-1793846339; Bill Chappell, “Supreme Court Tosses Out Man’s Conviction for Making Threat
on Facebook,” NPR, June 1, 2015, http://www.npr.org/sections/thetwo- way/2015/06/01/411213431/supreme-courttosses-outman-s-conviction-for-making-threats-on-facebook.
177
Sarcasm is an example of something of which different cultures have different understandings. Ruth Margolis
and Tony Hargis, "Two Brits Debate: Are Americans Sarcasm-Literate?" BBC America, accessed September 20,
2017, http://www.bbcamerica.com/anglophenia/2013/02/debate-are-americans-sarcasm-literate (discussing
differences between American and British sarcasm).
178
Cantu and Joseph, “Trump’s Border Security May Search Your Social Media by Tone.”
179
For more details see, for example, Abby Ohlheiser, “Is a retweet an endorsement from President-elect Trump?”,
Washington Post, November 30, 2016, https://www.washingtonpost.com/news/the-intersect/wp/2016/11/30/is-aretweet-an-endorsement-from-president-elect-trump/?utm_term=.de435e7b0cb9; Wendy Davis, “Facebook ‘Likes’
And Pinterest Photos Can Be Endorsements, FTC Says,” MediaPost, May 29, 2015,
https://www.mediapost.com/publications/article/250932/facebook-likes-and-pinterest-photos-can-be-endor.html;
Troutman Sanders LLP, “Facebook ‘Likes’ – Endorsements or Not?”, Information Intersection, last modified June
7, 2012, accessed September 16, 2017, http://www.informationintersection.com/2012/06/facebook-likesendorsements-or-not/; Erin Sumner, Luisa Ruge-Jones, and Davis Alcorn, “A functional approach to the Facebook
Like Button: An exploration of meaning, interpersonal functionality, and potential alternative response buttons,”
New Media & Society, March 20, 2017, http://journals.sagepub.com/doi/abs/10.1177/1461444817697917; Karla
Porter, “Does liking a page on Facebook equal endorsing it?”, Karlaporter.com, modified August 9, 2014, accessed
September 16, 2017, https://karlaporter.com/liking-page-facebook-equal-endorsing/.
180
Brennan Center for Justice, et. al, Comment Submission Regarding Notice of Information Collection under OMB
Review: Supplemental Questions for Visa Applicants (DS-5535), for Department of State Office of Information and
Regulatory Affairs and Visa Office, Bureau of Consular Affairs, May 18, 2017, 5,
https://www.brennancenter.org/analysis/brennan-center-urges-state-department-abandon-new-extreme-vettinginitiatives.
181
82 Fed. Reg. 36,180 (August 3, 2017).
182
United Nations General Assembly Resolution 2200A (XXI), “International Covenant on Civil and Political
Rights,” December 16, 1966, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx.
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx.
183
David Iaconangelo, “Why Donald Trump’s 'ideological screening' wouldn’t be a first for the US,” Christian
Science Monitor, August 17, 2016, https://www.csmonitor.com/USA/2016/0817/Why-Donald-Trump-s-ideologicalscreening-wouldn-t-be-a-first-for-the-US (quoting presidential candidate Trump’s remarks at Youngstown State
University in Ohio).
184
“Transcript: Donald Trump’s full immigration speech, annotated,” Los Angeles Times, August 31, 2016,
http://www.latimes.com/politics/la-na-pol-donald-trump-immigration-speech-transcript-20160831-snaphtmlstory.html.
185
Ibid.
186
Meckler, “Trump Administration Considers Far-Reaching Steps for Extreme Vetting.”
187
82 Fed. Reg. 8977 (January 27, 2017).
188
“RWW News: Michael Flynn: Islam Is A ‘Cancer,’ ‘Political Ideology,’ that ‘Hides Behind’ Religion,” YouTube
video, from a speech delivered for ACT for America, August 2016, posted by “RWW Blog,” November 18, 2016,
https://www.youtube.com/watch?v=fzh9b_vo4vs; Zack Beauchamp, "Trump's counter-jihad," Vox, February 13,
2017, https://www.vox.com/world/2017/2/13/14559822/trump-islam-muslims-islamophobia-sharia; Andrea Elliot,
“The Man Behind the Anti-Shariah Movement,” New York Times, July 30, 2011,
http://www.nytimes.com/2011/07/31/us/31shariah.html?pagewanted=all&_r=1&.
189
Beauchamp, "Trump's counter-jihad”; Elliot, “The Man Behind the Anti-Shariah Movement”; Abigail
Haulohner, “How a series of fringe anti-Muslim conspiracy theories went mainstream – via Donald Trump,”
Washington Post, November 5, 2016, https://www.washingtonpost.com/national/how-a-series-of-fringe-antimuslim-conspiracy-theories-went-mainstream--via-donald-trump/2016/11/05/7c366af6-8bf0-11e6-bf8a3d26847eeed4_story.html?utm_term=.3fcac90b7232.
190
82 Fed. Reg. 8977 (January 27, 2017).
191
Hillary Mayell, “Thousands of Women Killed for Family ‘Honor,’” National Geographic News, February 12,
2002, http://news.nationalgeographic.com/news/2002/02/0212_020212_honorkilling.html (Widney Brown,
Advocacy Director for Human Rights Watch: “In countries where Islam is practiced, they're called honor killings,

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but dowry deaths and so-called crimes of passion have a similar dynamic in that the women are killed by male
family members and the crimes are perceived as excusable or understandable.”); Anna Momigliano, “Honor Killing
by Any Other Name,” Nation, February 2, 2010, https://www.thenation.com/article/honor-killing-any-other-name/.
192
82 Fed. Reg. 8977 (January 27, 2017).
193
Burke, Daniel. "Trump says US will prioritize Christian refugees." CNN. January 30, 2017. Accessed September
27, 2017. http://www.cnn.com/2017/01/27/politics/trump-christian-refugees/index.html.
194
82 Fed. Reg. 13,209, 13,215 (§ 5(a)) (March 6, 2017).
195
Ibid.
196
Int'l Refugee Assistance Project v. Trump, 857 F.3d at 595 (“These statements, taken together, provide direct,
specific evidence of what motivated both EO-1 and EO-2: President Trump's desire to exclude Muslims from the
United States.”).
197
Donald Trump (@realDonaldTrump), “The Justice Dept. should have stayed with the original Travel Ban, not the
watered down, politically correct version they submitted to S.C.,” Twitter, June 5, 2017, 3:29 a.m.,
https://twitter.com/realdonaldtrump/status/871675245043888128?lang=en; Donald Trump (@realDonaldTrump),
“The travel ban into the United States should be far larger, tougher and more specific-but stupidly, that would not be
politically correct!,” Twitter, September 15, 2017, 3:54 a.m.,
https://twitter.com/realdonaldtrump/status/908645126146265090?lang=en.
198
“Second Defeat for the White House on the President’s Travel Ban,” CNN, March 15, 2017, 11:00 PM,
http://transcripts.cnn.com/TRANSCRIPTS/1703/15/cnnt.02.html (quoting Stephen Miller, Presidential Advisor, as
saying that the second travel ban will result in the “same basic policy outcome”).
199
Meckler, "Trump Administration Considers Far-Reaching Steps for 'Extreme Vetting.'"
200
Immigration and Nationality (McCarran-Walter) Act of 1952, Pub. L. No. 82- 414, § 212 (a)(27), 66 Stat. 18225
(codified at 8 U.S.C. § 1304).
201
Iaconangelo, “Why Donald Trump’s 'ideological screening' wouldn’t be a first for the US.”
202
Immigration Act of 1990, Pub. L. No 101-649, § 301, 104 Stat. 4978, 5029-39; John Scanlan, “Why the
McCarran-Walter Act Must Be Amended,” Maurer Law Digital Repository, 2494 (1987),
http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3496&context=facpub; Henry Johnson,
“Trump’s ‘Ideology Test’ Could Bring Back a Hated Mc-Carthy-Era Law,” Foreign Policy, August 17, 2016,
http://foreignpolicy.com/2016/08/17/trumps-ideology-test-could-bring-back-a-hated-mccarthy-era-law/.
203
Scanlan, “Why the McCarran-Walter Act Must Be Amended”; Johnson, “Trump’s ‘Ideology Test’ Could Bring
Back a Hated Mc-Carthy-Era Law.”
204
Steven Holmes, “Legislation Eases Limits on Aliens,” New York Times, February 2, 1990,
http://www.nytimes.com/1990/02/02/us/legislation-eases-limits-on-aliens.html?mcubz=1 (quoting Senator Daniel
Moynihan, sponsor of the repeal legislation). Senator Moynihan's comments refer to a list of factors which had
formerly mandated exclusion from the United States. 8 U.S.C. § 1182(a)(28)(A)-(G) (1987) (citing specific
activities and beliefs which would exclude an individual from entry into the United States).
205
Improving Border Security and Public Safety: Hearing Before the S. Comm. On Homeland Security and
Governmental Affairs, 115th Cong. (April 5, 2017) (transcript at 13, available at https://goo.gl/CKvqEN)
206
Deborah Amos and Larry Kaplow, “Trump Backers Want Ideology Test for Extreme Vetting,” NPR, February 4,
2017 http://www.npr.org/sections/parallels/2017/02/04/513289953/trump-backers-want-ideology-test-for-extremevetting. For more details, see also Iaconangelo, “Why Donald Trump’s 'ideological screening' wouldn’t be a first for
the US” (quoting Kenyon Zimmer, assistant professor of history at the University of Texas-Arlington on the
difficulty of enforcing ideological tests and the “huge abrogation of freedom of speech” that such screening would
imply).
207
Patel and Koushik, Countering Violent Extremism, n. 92-100.
208
See discussion in Section II.c
209
Office of Intelligence and Analysis, (U//FOUO) Most Foreign-born, US-based Violent Extremists Radicalized
after Entering Homeland; Opportunities for Tailored CVE Programs; See discussion at beginning of Section I.
Linking what are primarily domestic threats to outsiders is not new – now-repealed ideological exclusions targeting
anarchists came as xenophobic sentiments tied anarchism to foreigners, even though most anarchists were secondgeneration Americans, and foreign-born anarchists radicalized after entry. Iaconangelo, “Why Donald Trump’s
'ideological screening' wouldn’t be a first for the US.”

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210

Michael German and Michelle Richardson, Reclaiming Patriotism: A Call to Reconsider the Patriot Act,
American Civil Liberties Union, 2009, 26-27, https://www.aclu.org/files/pdfs/safefree/patriot_report_20090310.pdf;
8 U.S.C. § 1182(a)(3)(B)(i)(VIl).
211
For example, they ask: if the applicant is a member of a terrorist organization; has participated, order, incited,
assisted, or otherwise participated in extrajudicial killings; or has been responsible for severe violations of religious
freedom as a government official. For more details see, for example, “Guidelines for Completing the DS 160 Non
Immigrant Visa Application,” U.S. Embassy Baghdad, accessed September 19, 2017,
http://blogs.worldlearning.org/iylep/files/2012/03/DS-160-NIV-Instructions-IYLEP-World-Learning.pdf; “DS-160
Nonimmigration Visa Application Form: A Complete Step-by-step Instructional Guide,” U.S. Embassy Kingston,
Jamaica (Powerpoint Presentation), https://photos.state.gov/libraries/jamaica/231771/PDFs/DS160%20Instructions.pdf.
212
For example, those barred have often included Colombians – often asylum seekers – who gave “material support”
to the Revolutionary Armed Forces of Colombia (“FARC”) under duress. Sweta Sridharan, “Material Support to
Terrorism – Consequences for Refugees and Asylum Seekers in the United States,” Migration Policy Institute,
January 30, 2008, http://www.migrationpolicy.org/article/material-support-terrorism-%E2%80%94-consequencesrefugees-and-asylum-seekers-united-states. For more details, see also German and Richardson, Reclaiming
Patriotism, 22-27. One notable example: these provisions were employed in the mid-2000s to exclude from the U.S.
a prominent scholar of Islam from Oxford University, Tariq Ramadan, even though he had repeatedly disavowed
violence. Professor Ramadan was eventually admitted to the U.S. in 2010. “ACLU Welcomes Formerly
‘Ideologically Excluded’ Scholar Tariq Ramadan,” American Civil Liberties Union, accessed September 19, 2017,
https://www.aclu.org/video/aclu-welcomes-formerly-ideologically-excluded-scholar-tariq-ramadan.
213
Consolidated Appropriations Act of 2008 (CAA), Pub. L. No. 110-161, 121 Stat. 1844 (2007). Section 691 of
Division J of this bill made amendments to the inadmissibility grounds of INA § 212 (a)(3)(B) related to
“terrorism,” and to the authority codified at INA § 212 (d)(3)(B)(i) that gives the Secretaries of State and Homeland
Security (in consultation with the Attorney General) discretionary authority to waive these grounds in particular
cases. Over 10,000 waivers were granted within two years of the Patriot Act. Trump has tried to roll back this
practice as well. Executive Order 13780 called for the Secretary of State and DHS Secretary to “consider rescinding
the exercises of authority…relating to the terrorism grounds of inadmissibility, as well as any related implementing
directives or guidance.” 82 Fed. Reg. 13,215. The State Department has stated that it is not aware of any cases in
which such waivers were abused; indeed, a former official called this Trump directive “an attempt to address a nonexistent phantom problem.” Mica Rosenberg and Yeganeh Torbati, “Trump Administration may change rules that
allow terror victims to immigrate to US,” Reuters, April 21, 2017, http://www.reuters.com/article/usa-immigrationterrorism-exceptions/trump-administration-may-change-rules-that-allow-terror-victims-to-immigrate-to-usidUSL1N1HT1DC.
214
Improving Border Security and Public Safety: Hearing Before the S. Comm. On Homeland Security and
Governmental Affairs, 115th Cong. (April 5, 2017) (transcript at 13, available at https://goo.gl/CKvqEN).
215
See Attachment 2: Background, 3, Immigration and Customs Enforcement Office, U.S. Department of Homeland
Security, “Presolicitation Notice, Solicitation No. HSCEMD-17-R-00010, ICE-HIS – Data Analysis Service
Amendment.”
216
Ibid at Attachment 2: Background, 4.
217
Ibid at Attachment 1: Statement of Objectives, 1.
218
Ibid at Attachment 1: Statement of Objectives, 1.
219
Compare 82 Fed. Reg. 8977, 8979 § 4(a) (January, 27 2017) with 82 Fed. Reg. 13,209, 13,215 § 5(a) (March 6,
2017).
220
Faiza Patel and Rachel Levinson-Waldman, The Islamophobic Administration, Brennan Center for Justice, 2017,
2-4, http://www.brennancenter.org/sites/default/files/publications/BCJ_Islamophobic_Administration.pdf.
221
Aaron Shapiro, “Reform predictive policing,” Nature, January 25, 2017, http://www.nature.com/news/reformpredictive-policing-1.21338; Logan Koepke, “Predictive Policing Isn’t About the Future,” Slate, November 21,
2016,
http://www.slate.com/articles/technology/future_tense/2016/11/predictive_policing_is_too_dependent_on_historical
_data.html; William Isaac and Andi Dixon, “Column: Why big data analysis of police activity is inherently biased,”
PBS NewsHour, May 10, 2017, http://www.pbs.org/newshour/rundown/column-big-data-analysis-police-activityinherently-biased/; Julia Angwin et al., “Machine Bias,” ProPublica, May 23, 2016,
https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing (quoting Former Attorney

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General Eric Holder’s concerns about risk scores in the context of criminal justice so shifting the axis of decision
making are equally applicable here: “I am concerned that [the use of predictive risk scores may] inadvertently
undermine our efforts to ensure individualized and equal justice…[and] exacerbate unwarranted and unjust
disparities…common in our criminal justice system.”).
222
Bruce Schneier, “Why Data Mining Won’t Stop Terror,” Wired, March 9, 2006,
https://www.wired.com/2006/03/why-data-mining-wont-stop-terror-2/?tw=wn_index_2.
223
Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (“The fourteenth amendment to the constitution is not confined to
the protection of citizens… [its provisions are] universal in their application, to all persons within the territorial
jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws
is a pledge of the protection of equal laws.”). Basic First Amendment protections are also afforded to non-citizens.
Bridges v. Wixon, 326 U.S. 135, 161 (1945) (“[O]nce an alien lawfully enters and resides in this country he
becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include
those protected by the First and the Fifth Amendments…”)
224
Lawson and Roychoudhury, “Do Travel Visa Requirements Impede Tourist Travel?”
225
Jie Zone and Jeanne Batalova, “Frequently Requested Statistics on Immigrants and Immigration in the United
States,” Migration Policy Institute, March 8, 2017, http://www.migrationpolicy.org/article/frequently-requestedstatistics-immigrants-and-immigration-united-states.
226
Department of State, “Table I: Immigrant and Nonimmigrant Visas Issued at Foreign Service Posts Fiscal Years
2012 - 2016,” Report of the Visa Office 2016,
https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/FY16AnnualReportTableI.pdf.
227
Requiring international travelers to obtain a visa can reduce travel by 52-70%. Eric Neumayer, “Visa Restrictions
and Bilateral Travel,” Professional Geographer 62:2, 171, 2010, 172; Eric Neumayer, “On the Detrimental Impact
of Visa Restrictions on Bilateral Trade and Direct Investment,” Applied Geography 31:3, 2011, 901; Lawson and
Roychoudhury, “Do Travel Visa Requirements Impede Tourist Travel?”
228
Neumayer, “Visa Restrictions and Bilateral Travel.”
229
Department of State, “Table XVI(A): Classes of Nonimmigrants Issued Visas (Including Border Crossing Cards)
Fiscal Years 2012-2016,” Report of the Visa Office 2016,
https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2016AnnualReport/FY16AnnualReportTableXVIA.pdf.
230
U.S. Travel Association, “Int’l Travel to U.S. Finally Returns to Pre-9/11 Levels,” press release, February 7,
2017, available at https://www.ustravel.org/press/intl-travel-us-finally-returns-pre-911-levels.
231
Department of State, Congressional Budget Justification, Department of State, Foreign Operations, and Related
Programs, Fiscal Year 2018, 2017, 55, https://www.state.gov/documents/organization/271013.pdf.
232
See Department of State, “Table XVI(A): Classes of Nonimmigrants Issued Visas (Including Border Crossing
Cards) Fiscal Years 2012-2016.”
233
Brian Crawford, Laurie Flanagan, and Gregg Hartley, “H-2B program benefits small businesses and their
workers,” Hill, June 14, 2016, http://thehill.com/blogs/congress-blog/economy-budget/283440-h-2b-programbenefits-small-businesses-and-their-workers; Paul Solman, “Why seasonal businesses depend on foreign workers,”
PBS NewsHour, July 27, 2017, http://www.pbs.org/newshour/making-sense/seasonal-businesses-depend-foreignworkers/; Aria Bendix, “A Pause in International Students?”, Atlantic, March 13, 2017,
https://www.theatlantic.com/education/archive/2017/03/a-pause-in-international-students/519435/ (International
students contribute billions to the U.S. and “typically pay full price for tuition, thereby helping to subsidize the cost
of tuition for American students.”); Takao Kato and Chad Sparber, “Quotas and Quality: The Effect of H1-B Visa
Restrictions on the Pool of Prospective Undergraduate Students from Abroad,” Review of Economics and Statistics
95:1, March 2013, 109-126 (showing that show that restrictive immigration policy has had an adverse impact on the
quality of prospective international applicants to American universities).
234
“The H-1B Visa Program: A Primer on the Program and Its Impact on Jobs, Wages, and the Economy,”
American Immigration Council, last accessed September 17, 2017,
https://www.americanimmigrationcouncil.org/sites/default/files/research/the_h1b_visa_program_a_primer_on_the_program_and_its_impact_on_jobs_wages_and_the_economy.pdf; Guinevere
Nell and James Sherk, More H-1B Visas, More American Jobs, A Better Economy, Heritage Foundation, 2008,
http://www.heritage.org/immigration/report/more-h-1b-visas-more-american-jobs-better-economy.
235
“Report: New American Fortune 500,” Partnership for a New American Economy, June 15, 2011,

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http://www.newamericaneconomy.org/research/new-american-fortune-500/; see also Patent Pending: How
Immigrants are Reinventing the American Economy, Partnership for a New American Economy, 2012,
http://www.newamericaneconomy.org/wp-content/uploads/2013/07/patent-pending.pdf.
236
Many of these companies have also opposed the travel ban in court, with nearly 100 joining a single amicus brief.
See Brief of Technology Companies and other Businesses as Amici Curiae in Support of Appellees, Washington v.
Trump, 2017 WL 626517 (9th Cir. Feb. 5, 2017).
237
“Trump’s travel ban causing angst for America’s health system,” CBS News, February 21, 2017,
https://www.cbsnews.com/news/trump-travel-ban-impact-on-international-doctors-american-health-system/; Jessica
Glenza, “Healthcare and Trump’s travel ban: data shows success of doctors trained abroad,” Guardian, February 2,
2017, https://www.theguardian.com/us-news/2017/feb/02/us-doctors-trump-travel-ban-health.
238
The Lost Decade: The High Costs of America’s Failure to Compete for International Travel, U.S. Travel
Association and Oxford Economics, 2010, 2,
https://www.ustravel.org/system/files/Media%20Root/Document/lostdecadereport.pdf. The wait to get an interview
appointment can be several months. David Muir, Christine Brouwer, and Maggy Patrick, “Made in America: Visa
Process Slows Down Tourism,” ABC News, October 31, 2011, http://abcnews.go.com/US/made-america-visaprocess-slowing-tourism/story?id=14853459; Ready for Takeoff: A Plan to Create 1.3 Million U.S. Jobs by
Welcoming Millions of International Travelers, U.S. Travel Association, 2011, 11, 37,
https://www.ustravel.org/system/files/media_root/document/Ready_for_Takeoff_US_Travel_Blueprint.pdf.
Tourism industry groups have argued that the wait for a visa interview is a deterrent for potential visitors and
negatively impacts the American economy. Ibid. Nonetheless, Trump has reversed Obama initiatives intended to
expedite the interview scheduling process and suggested a cap of 120 visa interviews per consular officer per day,
admitting that backlogs may rise. Exec. Order 13,597, 77 Fed. Reg. 3373 (January 19, 2012) (Obama order requiring
Department of State to schedule 80 percent of nonimmigrant visa interviews within three weeks of receipt of
application); Exec. Order No. 13,802, 82 Fed. Reg. 28747 (June 21, 2017) (rescinding aforementioned Obama
order); 17 STATE 25814, ¶ 13 (“In order to ensure that proper focus is given to each application, posts should
generally not schedule more than 120 visa interviews per consular adjudicator/per day. Please that limiting
scheduling may cause interview appointment backlogs to rise.”).
239
The Lost Decade: The High Costs of America’s Failure to Compete for International Travel, U.S. Travel
Association and Oxford Economics.
240
Michael Sasso, “Airline Stocks Lose $4.9 Billion as Investors Weigh Travel Ban,” Bloomberg, January 31, 2017,
https://www.bloomberg.com/news/articles/2017-01-31/airlines-fall-for-second-day-as-travel-ban-raises-costquestions.
241
The Visa Waiver Program was first a pilot program authorized by President Reagan in 1986. Immigration
Reform and Control Act of 1986, Pub. L. No. 99-603, § 313, 100 Stat. 3359 (codified as amended at 8 U.S. §§ 1182,
1187). In 2000, President Clinton signed the Visa Waiver Permanent Program Act, making the pilot program
permanent. Visa Waiver Permanent Program Act of 2000, Pub. L. No. 106-396, 114 Stat. 1637. Alison Siskin, Visa
Waiver Program, Congressional Research Service, RL32221, 2015, 3, https://fas.org/sgp/crs/homesec/RL32221.pdf.
The program enjoys broad support from U.S. industry, the academic community, as well as the Departments of State
and Homeland Security. Edward Alden, “In praise of the US Visa Waiver Program,” Politico, November 25, 2015,
http://www.politico.eu/article/in-praise-of-the-us-visa-waiver-program/.
242
“U.S. Visa Waiver Program,” Department of Homeland Security, accessed September 20, 2017,
https://www.dhs.gov/visa-waiver-program; Terrorism and the Visa Waiver Program: Hearing Before the H.
Subcomm. on National Security and the Subcomm. on Health Care, Benefits, and Administrative Rules, Comm. on
Oversight and Government Reform, 114th Cong. 145 (2015), 4 https://www.gpo.gov/fdsys/pkg/CHRG114hhrg25881/pdf/CHRG-114hhrg25881.pdf. For more on the economic benefits of the Visa Waiver Program see
Siskin, Visa Waiver Program, at 11; Lawson and Roychoudhury, “Do Travel Visa Requirements Impede Tourist
Travel?”; Michaela D. Platzer and Alison Siskin, Balancing Tourism Against Terrorism: The Visa Waiver Program,
Congressional Research Service, IN10246, 2015; Riley Walters, The Visa Waiver Program is Still Great for
America, Heritage Foundation, March 14, 2017, http://www.heritage.org/homeland-security/report/the-visa-waiverprogram-still-great-america; Steven Bucci, Visa Waiver Program Improves Security, Heritage Foundation, March
17, 2015, http://www.heritage.org/testimony/visa-waiver-program-improves-security; David Inserra, The Visa
Waiver Program: Congress Should Strengthen a Crucial Security Tool, Heritage Foundation, December 2, 2015,
http://www.heritage.org/terrorism/report/the-visa-waiver-program-congress-should-strengthen-crucial-security-tool.

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243

Andrea Elliott, "More Muslims Arrive in U.S., After 9/11 Dip," The New York Times, September 09, 2006,
accessed September 27, 2017, http://www.nytimes.com/2006/09/10/nyregion/10muslims.html?mcubz=1.
244
Nahal Toosi, Ted Hesson, and Sarah Frostenson, “Muslim nations targeted by Trump’s travel ban see steep visa
drop,” Politico, September 28, 2017, http://www.politico.com/story/2017/05/25/trump-muslim-visas-238846.
245
Ibid.
246
“2017 Monthly Tourism Statistics,” National Travel & Tourism Office, accessed September 26, 2017,
http://tinet.ita.doc.gov/view/m-2017-I-001/table1.asp (citing preliminary April 2017 data from U.S. Department of
Commerce Summary of International Travel to the U.S. (I-94) Report); Glusac, “International Tourism to the U.S.
Declined in Early 2017.”
247
Eric Neumayer, “Visa Restrictions and Bilateral Travel.”
248
Christopher Muther, “You Could Call US Tourism a Victim of Trump’s Travel Ban,” Boston Globe, February
14, 2017, https://www.bostonglobe.com/lifestyle/travel/2017/02/14/trump-ban-causes-tourism-drop-and-industryfears-lasting-effect/yzMAVzeLvqywP8gEekoFsL/story.html.
249
American Anthropological Association, et. al, Comment Submission Regarding Notice of Information Collection
under OMB Review: Supplemental Questions for Visa Applicants (DS-5535), for Department of State Office of
Information and Regulatory Affairs and Visa Office, Bureau of Consular Affairs, May 18, 2017,
http://www.nafsa.org/_/file/_/amresource/DS5535Comment051817.pdf
250
Ibid. See also “The H-1B Visa Program: A Primer on the Program and Its Impact on Jobs, Wages, and the
Economy,” American Immigration Council.
251
Thanassis Cambanis, “Trump’s Dangerous Attack on American Values,” Century Foundation (blog), January 30,
2017, https://tcf.org/content/commentary/trumps-cowardly-attack-american-values/.
252
Bill Ong Hing, Defining America: Through Immigration Policy, Temple Press, 2015, 77 (quoting Senate
Judiciary Committee Report relating to Act); D’vera Cohn, “How U.S. Immigration laws and rules have changed
through history,” Pew Research Center, September 30, 2015, http://www.pewresearch.org/facttank/2015/09/30/how-u-s-immigration-laws-and-rules-have-changed-through-history/. The quotas were passed over
the veto of President Truman, who called the quota system “a slur on the patriotism…of a large part of our
citizenry” that “discriminates, deliberately and intentionally, against many of the peoples of the world.” Harry S.
Truman, “182- Veto of Bill to Revise the Laws Relating to Immigration, Naturalization, and Nationality,” June 25,
1952, http://www.presidency.ucsb.edu/ws/?pid=14175.
253
See 8 U.S.C. 1152 (a)(1)(A) (“[N]o person shall receive any preference or priority or be discriminated against in
the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of
residence.”); see also Cohn, “How U.S. immigration laws and rules have changed.”
254
H.R. 2580 To Amend the Immigration and Nationality Act and for Other Purposes: Hearing Before the
Subcomm. No. 1 of the H. Comm. on the Judiciary, 89th Cong. 418 (1965) (statement of Representative Benjamin S.
Rosenthal).
255
Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, 453 (U.S. Dist. Ct. S.D. Fl. 1980).
256
Cohn, “How U.S. immigration laws and rules have changed.”
257
Faye Hipsman and Doris Meissner, “Immigration in the United States: New Economic, Social, Political
Landscapes with Legislative Reform on the Horizon,” Migration Policy Institute, April 16, 2013,
http://www.migrationpolicy.org/article/immigration-united-states-new-economic-social-political-landscapeslegislative-reform.
258
Indeed, Attorney General Jeff Sessions has publicly praised the national-origin quotas from the Immigration Act
of 1924, which broadened bans on Asian immigration to the United States and contained strong preferences for
northern and western European immigration. Adam Serwer, “Jeff Sessions’s Unqualified Praise for a 1924
Immigration Law,” Atlantic, January 10, 2017, https://www.theatlantic.com/politics/archive/2017/01/jeff-sessions1924-immigration/512591/.
259
Department of State, Alternatives to Closing Doors in Order to Secure Our Borders, DISSENT CHANNEL, by
Redacted, https://assets.documentcloud.org/documents/3438487/Dissent-Memo.pdf; for further discussion, see
Jeffrey Gettleman, “State Department Dissent Cable on Trump’s Ban Draws 1,000 Signatures,” New York Times,
January 31, 2017, https://www.nytimes.com/2017/01/31/world/americas/state-dept-dissent-cable-trumpimmigration-order.html?mcubz=1&_r=0.
260
H.R. Rep. No. 89-745, at 11 (1965).
261
Lyndon B. Johnson, “546 - Remarks at the Signing of the Immigration Bill, Liberty Island, New York,” October
3, 1965; see also H.R. 7700 and 55 Identical Bills To Amend the Immigration and Nationality Act and For Other

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Purposes: Hearing Before the Subcomm. No. 1 of the H. Comm. on the Judiciary, 88th Cong. 208 (1964) (statement
of Representative Harold Ryan) (“The United States must not support a doctrine of favoritism. We cannot preach the
ideals of democracy, and, at the same time, judge the qualifications of men because of their race or national
ancestry.”).

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EXHIBIT 8

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RECLAIMING PATRIOTISM
A Call to Reconsider
the Patriot Act

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RECLAIMING PATRIOTISM
A Call to Reconsider
the Patriot Act

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Reclaiming Patriotism
A Call to Reconsider the Patriot Act
Published March 2009
THE AMERICAN CIVIL LIBERTIES UNION is the nation’s premier guardian of liberty, working daily in courts,
legislatures and communities to defend and preserve the individual rights and freedoms guaranteed
by the Constitution and the laws of the United States.
OFFICERS AND DIRECTORS
Susan N. Herman, President
Anthony D. Romero, Executive Director
Richard Zacks, Treasurer

ACLU NATIONAL OFFICE
125 Broad Street, 18th Fl.
New York, NY 10004-2400
[phone]
www.aclu.org

ACKNOWLEDGEMENTS
ACLU Policy Counsel Michael German and Legislative Counsel Michelle Richardson
researched and wrote Reclaiming Patriotism: A Call to Reconsider the Patriot Act.
Willa Tracosas designed the publication.
Photo credits:
Peter Chase (pg. 13): Plainville (CT) Library Staff
Brewster Kahle (pg. 15): By Moira Davis of Internet Archive
Tariq Ramadan (pg. 17):Provided by Mr. Ramadan’s office
Konstanty Hordynski (pg. 19): By Rick Rocamora
Wanda Guthrie (pg. 21): Provided by Ms. Guthrie
Brandon Mayfield (pg. 25): AP Images

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TABLE OF CONTENTS

EXECUTIVE SUMMARY

5

INTRODUCTION

7

REAL PATRIOTS DEMAND THEIR RIGHTS

8

EXCESSIVE SECRECY THWARTS CONGRESSIONAL OVERSIGHT
Increasing Levels of Surveillance
More Collection Does Not Result in More Prosecutions

10
11
13

NEW SUNSET DATES CREATE OVERSIGHT OPPORTUNITY

14

EVIDENCE OF ABUSE: THE INSPECTOR GENERAL AUDITS
National Security Letters
Section 215 Orders

16
16
18

UNCONSTITUTIONAL: COURT CHALLENGES TO THE PATRIOT ACT
National Security Letter Gag Orders
Material Support for Terrorism Provisions
Ideological Exclusion
Relaxed FISA Standards

21
21
22
26
27

ONLY ONE PIECE OF THE PUZZLE

29

CONCLUSION—IT IS TIME TO RECLAIM PATRIOTISM

30

APPENDIX—THE PATRIOT ACT AT A GLANCE

31

ENDNOTES

34

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EXECUTIVE SUMMARY
More than seven years after its implementation, there is little evidence to demonstrate that the Patriot Act has made
America more secure from terrorists. But there are many unfortunate examples that the government abused these
authorities in ways that both violated the rights of innocent people and squandered precious security resources.
Three Patriot Act-related surveillance provisions will expire in December 2009, which will give the 111th Congress
an opportunity to review and thoroughly evaluate all Patriot Act authorities – as well as any other post-9/11
domestic intelligence programs – and to rescind, repeal or modify provisions that are unused, ineffective or prone
to abuse.
The framers of the Constitution recognized that giving the government unchecked authority to pry into our
private lives risked more than just individual property rights. These patriots understood from their own experience
that political rights could not be secured without procedural protections. The Fourth Amendment mandates prior
judicial review and permits warrants to be issued only upon probable cause. The nation’s founders saw these
procedural requirements as the necessary remedies to the arbitrary and unreasonable assaults on free expression
exemplified by King George’s abuse of general warrants. Stifling dissent does not enhance security. The framers
created our constitutional system of checks and balances to curb government abuse and, ultimately, to make the
government more responsive to the needs of the people – in whom all government power resides. Limiting the
government’s power to intrude into private affairs, and checking that power with independent oversight, reduces
the error and abuse that conspire to undermine public confidence. As the original patriots knew, adherence to the
concepts set forth in the Constitution and the Bill of Rights makes our government stronger, not weaker.
The Patriot Act vastly – and unconstitutionally – expanded the government’s authority to pry into people’s private
lives with little or no evidence of wrongdoing. Unfortunately, when the expiring provisions came up for review
in 2005 there was very little in the public record for Congress to evaluate. Excessive secrecy surrounding the
government’s use of these authorities, enforced through unconstitutional gag orders, prevented any meaningful
evaluation of the Patriot Act. Even without adequate supporting justification, in March 2006 Congress passed
the USA Patriot Act Improvement and Reauthorization Act, making fourteen of the sixteen expiring provisions
permanent.
Little is known about the government’s use of many of its authorities under the Patriot Act, but raw numbers available
through government reports reflect a rapidly increasing level of surveillance.The statistics show skyrocketing numbers
of Foreign Intelligence Surveillance Court orders, National Security Letter (NSL) requests and Suspicious Activity
Reports while terrorism prosecution numbers are down and declinations to prosecute FBI international terrorism
investigations have increased. Moreover, Department of Justice Inspector General reports (mandated as part of the
Patriot Act reauthorization) revealed the government’s widespread misuse of NSL and section 215 authorities. Also,
several courts have found parts of the Patriot Act unconstitutional, including the NSL gag provisions, enhancements
to the material support and ideological exclusion statutes, and Section 218 of the Patriot Act, which lowered the
standard for obtaining an individualized Foreign Intelligence surveillance Act (FISA) warrant.
This report identifies the Patriot Act provisions that require intensive oversight and modification to prevent abuse.
It also contains specific legislative recommendations for reforming the NSL, FISA, material support and ideological
exclusion statutes and section 215 of the Patriot Act:

RECLAIMING PATRIOTISM

5

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NSLs and Section 215
• Repeal the expanded NSL and section 215 authorities that allow the FBI to demand information about
innocent people who are not the targets of any investigation. Reinstate prior standards limiting the use of
section 215 and NSL authorities to gather information only about terrorism suspects and other agents of
foreign powers.
• Allow gag orders only upon the authority of a court, and only when necessary to protect national security.
Limit scope and duration of such gag orders and ensure that their targets and recipients have a meaningful
right to challenge them before a fair and neutral arbiter.
• Impose judicial oversight of all Patriot Act authorities.
Material Support
• Amend the material support statutes to require specific intent to further an organization’s unlawful
activities before imposing criminal liability.
• Remove overbroad and impermissibly vague language, such as “training,” “service” and “expert advice and
assistance,” from the definition of material support.
• Establish an explicit duress exemption to remove obstacles for genuine refugees and asylum-seekers to
enter and/or remain in the United States.
• Provide notice, due process and meaningful review requirements in the designation process, and permit
defendants charged with material support to challenge the underlying designation in their criminal cases.
Ideological Exclusion
• Ban ideological exclusion based on speech that would be protected in the United States under the First
Amendment.
• Repeal the “endorse or espouse” provision.
FISA Statutes
• Restore the primary purpose requirement to FISA.
While implementation of these recommendations would help fix some Patriot Act-related problems, Congress
must examine the full panoply of intelligence activities, especially domestic intelligence gathering programs, and
encourage a public debate about the proper nature and reach of government surveillance programs on American
soil. The Patriot Act may have been the first overt expansion of domestic spying powers after September 11, 2001
– but it certainly wasn’t the last, and arguably wasn’t even the most egregious. There have been many significant
changes to our national security laws over the past seven years, and addressing the excesses of the Patriot Act without
examining the larger surveillance picture may not be enough to rein in an out-of-control intelligence-gathering
regime. Fundamentally, Congress must recognize that overbroad, ineffective or abusive surveillance programs are
counterproductive to long-term government interests because they violate constitutional standards and undermine
public confidence and support of U.S. anti-terrorism programs. Congress should begin vigorous and comprehensive
oversight hearings to examine all post-9/11 national security programs to evaluate their effectiveness and their impact
on Americans’ privacy and civil liberties. This oversight is essential to the proper functioning of our constitutional
system of government and becomes even more necessary during times of crisis.

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INTRODUCTION
On October 26, 2001, amid the climate of fear and uncertainty that followed the terrorist attacks of September 11,
2001, President George W. Bush signed into law the USA Patriot Act, and fundamentally altered the relationship
Americans share with their government.1 This act betrayed the confidence the framers of the Constitution had that
a government bounded by the law would be strong enough to defend the liberties they so bravely struggled to
achieve. By expanding the government’s authority to secretly search private records and monitor communications,
often without any evidence of wrongdoing, the Patriot Act eroded our most basic right – the freedom from
unwarranted government intrusion into our private lives – and thwarted constitutional checks and balances. Put
very simply, under the Patriot Act the government now has the right to know what you’re doing, but you have no
right to know what it’s doing.
More than seven years after its implementation there is little evidence that the Patriot Act has been effective in
making America more secure from terrorists. However, there are many unfortunate examples that the government
abused these authorities in ways that both violate the rights of innocent people and squander precious security
resources. Three Patriot Act-related surveillance provisions will expire in December 2009, which will give the
111th Congress an opportunity to review and thoroughly evaluate all Patriot Act authorities – as well as any other
post-9/11 domestic intelligence programs – and rescind, repeal or modify provisions that are unused, ineffective or
prone to abuse. The American Civil Liberties Union encourages Congress to exercise its oversight powers fully, to
restore effective checks on executive branch surveillance powers and to prohibit unreasonable searches and seizures
of private information without probable cause based on particularized suspicion.

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REAL PATRIOTS DEMAND THEIR RIGHTS
The Fourth Amendment to the U. S. Constitution protects individuals against ‘unreasonable searches and seizures.’
In1886, Supreme Court Justice Joseph P. Bradley suggested that the meaning of this phrase could not be understood
without reference to the historic controversy over general warrants in England and her colonies.2 General warrants
were broad orders that allowed the search or seizure of unspecified places or persons, without probable cause
or individualized suspicion. For centuries, English authorities had used these broad general warrants to enforce
“seditious libel” laws designed to stifle the press and suppress political dissent.This history is particularly informative
to an analysis of the Patriot Act because the purpose of the Fourth Amendment was not just to protect personal
property, but “to curb the exercise of discretionary authority by [government] officers.”3
To the American colonists, nothing demonstrated the British government’s illegitimate use of authority more than
“writs of assistance” – general warrants that granted revenue agents of the Crown blanket authority to search private
property at their own discretion.4 In 1761, in an event that John Adams later described as “the first act of opposition”
to British rule, Boston lawyer James Otis condemned general warrants as “the worst instrument of arbitrary power,
the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law
book.”5 Otis declared such discretionary warrants illegal, despite their official government sanction, because they
“placed the liberty of every man in the hands of every petty officer.”6 The resistance to writs of assistance provided
an ideological foundation for the American Revolution – the concept that the right of the people to be free from
unwarranted government intrusion into their private affairs was the essence of liberty. American patriots carried a
declaration of this foundational idea on their flag as they marched into battle: “Don’t tread on me.”
Proponents of the Patriot Act suggest that reducing individual liberties during a time of increased threat to our
national security is both reasonable and necessary, and that allowing fear to drive the government’s decisions in a
time of emergency is “not a bad thing.”7 In effect, these modern-day patriots are willing to exchange our forbearers’
“don’t tread on me” banner for a less inspiring one reading “if you aren’t doing anything wrong you have nothing
to worry about.”
Colonial-era patriots were cut from different cloth. They saw liberty not as something to trade for temporary
comfort or security, but rather as a cause worth fighting for even when the odds of success, not to mention survival,
were slight.
The framers of the Constitution recognized that giving the government unchecked authority to pry into our private
lives risked more than just individual property rights, as the Supreme Court later recounted: “The Bill of Rights
was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an
instrument for stifling liberty of expression.”8 These patriots understood from their own experience that political
rights could not be secured without procedural protections. The Fourth Amendment requirements of prior judicial
review and warrants issued only upon probable cause were determined to be the necessary remedies to the arbitrary
and unreasonable assaults on free expression that were characterized by the government’s use of general warrants.
“The requirement that warrants shall particularly describe the things to be seized makes general searches under
them impossible and prevents the seizure of one thing under a warrant describing another.”9 The Supreme Court
has long acknowledged the important interplay between First Amendment and Fourth Amendment freedoms. As it
reflected in 1965, “what this history indispensably teaches is that the constitutional requirement that warrants must

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particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are
books, and the basis for their seizure is the ideas which they contain.”10
The seizure of electronic communications and private records under the Patriot Act today is no less an assault on the
ideas they contain than seizure of books during a less technologically advanced era. Indeed, even more fundamental
liberty interests are at stake today because the Patriot Act expanded “material support” for terrorism statutes
that effectively criminalize political association and punish wholly innocent assistance to arbitrarily blacklisted
individuals and organizations. Patriot Act proponents suggest we should forfeit our rights in times of emergency,
but the Supreme Court has made clear that the Constitution requires holding the government to more exacting
standards when a seizure involve the expression of ideas even where compelling security interests are involved. As
Justice Powell explained in United States v. United States District Court,
National security cases, moreover, often reflect a convergence of First and Fourth Amendment values
not present in cases of “ordinary” crime.Though the investigative duty of the executive may be stronger
in such cases, so also is there greater jeopardy to constitutionally protected speech.11
More exacting standards are necessary in national security cases because history has repeatedly shown that
government leaders too easily mistake threats to their political security for threats to the national security. Enhanced
executive powers justified on national security grounds were used against anti-war activists, political dissidents, labor
organizers and immigrants during and after World War I. In the 1950s prominent intellectuals, artists and writers
were blacklisted and denied employment for associating with suspected communists and socialists. Civil rights
activists and anti-war protesters were targeted in the 1960s and 1970s in secret FBI and CIA operations.
Stifling dissent does not enhance security. The framers created our constitutional system of checks and balances
to curb government abuse, and ultimately to make the government more responsive to the needs of the people
– which is where all government power ultimately lies. The Patriot Act gave the executive branch broad and
unprecendented discretion to monitor electronic communications and seize private records, placing individual
liberty, as John Otis warned, “in the hands of every petty officer.”12 Limiting the government’s power to intrude
into private affairs, and checking that power with independent oversight, reduces the error and abuse that conspire
to undermine public confidence. As the original patriots knew, adhering to the Constitution and the Bill of Rights
makes our government stronger, not weaker.

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EXCESSIVE SECRECY
THWARTS CONGRESSIONAL OVERSIGHT
Just 45 days after the worst terrorist attack in history Congress passed the Patriot Act, a 342-page bill amending more
than a dozen federal statutes, with virtually no debate. The Patriot Act was not crafted with careful deliberation,
or narrowly tailored to address specific gaps in intelligence gathering authorities that were found to have harmed
the government’s ability to protect the nation from terrorism. In fact, the government hesitated for months before
authorizing an official inquiry, and it took over a year before Congress published a report detailing the many
significant pieces of intelligence the government lawfully collected before 9/11 but failed to properly analyze,
disseminate or exploit to prevent the attacks.13 Instead of first determining what led to the intelligence breakdowns
and then legislating, Congress quickly cobbled together a bill in ignorance, and while under intense pressure, to give
the president all the authorities he claimed he needed to protect the nation against future attacks.
The Patriot Act vastly – and unconstitutionally – expanded the government’s authority to pry into people’s private
lives with little or no evidence of wrongdoing. This overbroad authority unnecessarily and improperly infringes on
Fourth Amendment protections against unreasonable searches and seizures and First Amendment protections of free
speech and association. Worse, it authorizes the government to engage in this expanded domestic spying in secret,
with few, if any, protections built in to ensure these powers are not abused, and little opportunity for Congress to
review whether the authorities it granted the government actually made Americans any safer.
The ACLU warned that these unchecked powers could be used improperly against wholly innocent American
citizens, against immigrants living legally within our borders and against those whose First Amendment-protected
activities were improperly deemed to be threats to national security by the attorney general.14 Many members of
Congress shared the ACLU’s concerns and demanded the government include “sunsets,” or expiration dates on
certain provisions of the Patriot Act to give Congress an opportunity to review their effectiveness over time.
Unfortunately, when the expiring provisions came up for review in 2005 there was very little in the public record
for Congress to evaluate. While the ACLU objected to the way the government exercised Patriot Act powers
against individuals like Oregon attorney Brandon Mayfield, Idaho student Sami al-Hussayen and European
scholar Tariq Ramadan, among others,15 officials from the Department of Justice (DOJ) and the Federal Bureau of
Investigation (FBI) repeatedly claimed there had been no “substantiated” allegations of abuse.16 Of course, the lack
of substantiation was not due to a lack of abuse, but rather to the cloak of secrecy that surrounded the government’s
use of these authorities, which was duly enforced through unconstitutional gag orders. Excessive secrecy prevented
any meaningful evaluation of the Patriot Act. Nevertheless, in March 2006 Congress passed the USA Patriot Act
Improvement and Reauthorization Act (Patriot Act reauthorization), making fourteen of the sixteen expiring
provisions permanent.17

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Increasing Levels of Surveillance
Little is known about how the government uses many of its authorities under the Patriot Act, but raw numbers
available through government reports reflect a rapidly increasing level of surveillance.
Foreign Intelligence Surveillance Court Orders Approved
(Includes orders for electronic surveillance and physical searches)
Section 218 of the Patriot Act modified the legal standard necessary to obtain Foreign Intelligence Surveillance
Court orders.

FISA Orders
2000: 1012

2500

2001: 934

2000

2002: 1228

1500

2003: 1724
FISA Orders

1000

2004: 1754
2005: 2072

500

2006: 2176
2007: 2370

0
2000

2001

2002

2003

2004

2005

2006

2007

See Electronic Privacy Information Center, Foreign Intelligence Surveillance Act Orders 1979-2007,
http://epic.org/privacy/wiretap/stats/fisa_stats.html#footnote12 (last visited Dec. 1, 2008).

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National Security Letter Requests*
Section 505 of the Patriot Act reduced the legal standard for issuing National Security Letters.

National Security Letter Requests
60000

2000: 8,500

50000

2001: No Data

40000

2002: No Data
2003: 39, 346

30000

National Security Letters

20000

2004: 56,507
2005: 47,221

10000

2006: 49,425

0
2000

2001

2002

2003

2004

2005

2006

See Dep’t Of Justice, Office Of Inspector General, A Review Of The Federal Bureau Of Investigation’s Use Of National
Security Letters 69 (Mar. 2007), available at http://www.usdoj.gov/oig/special/s0703b/final.pdf; Dep’t Of Justice, Office Of
Inspector General, A Review Of The Federal Bureau Of Investigation’s Use Of Section 215 Orders for Business Records
(Mar. 2007), available at http://www.usdoj.gov/oig/special/s0703a/final.pdf.
*These numbers understate the number of NSL requests the FBI actually made during these time periods. The inspector general
determined that the FBI did not keep proper records regarding its use of NSLs and the audit revealed significant undercounting of NSL
requests. No reliable data exists for the number of NSLs served in 2001 and 2002.

Suspicious Activity Reports filed by financial institutions
Sections 356 and 359 of the Patriot Act expanded the types of financial institutions required to file suspicious
activity reports under the Bank Secrecy Act. These reports include detailed personal and account information and
are turned over to the Treasury Department and the FBI.

Suspicious Activity Reports
1,400,000

2000: 163,184

1,200,000

2001: 204,915

1,000,000

2002: 281,373
2003: 507,217

800,000
Suspicious Activity Reports

600,000

2004: 689,414

400,000

2005: 919,230

200,000

2006: 1,078,894

0

2007: 1,250,439
2000 2001 2002 2003 2004 2005 2006 2007

See Dep’t of the Treasury, Financial Crimes Enforcement Network,The  SAR  Activity  Review  –  By  the  Numbers,
Issue 10 (May 2008), available at http://www.fincen.gov/news_room/rp/files/sar_by_numb_10.pdf.

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More Collection Does Not Result in More Prosecutions
Data produced by the Executive Office for United States Attorneys and analyzed by the Transactional Records
Access Clearinghouse (TRAC) shows that prosecutions in FBI international terrorism cases dropped steadily from
2002 to 2008.*

International Terrorism Prosecutions

1999: 29

400

2000: 14

350

2001: 57

300

2002: 355

250

2003: 66

200

International Terrorism
Prosecutions

150

2004: 100
2005: 56

100

2006: 48

50

2007: 44

0

2008: 34

1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

More critical to evaluating the effectiveness of post-Patriot Act surveillance, however, is DOJ’s increasing tendency
to refuse to prosecute FBI international terrorism investigations during that time period. In 2006, the DOJ declined
to prosecute a shocking 87% of the international terrorism cases the FBI referred for prosecution. Only a tiny
fraction of the many thousands of terrorism investigations the FBI opens each year are even referred for prosecution,
thereby demonstrating that the vast majority of the FBI’s terrorism-related investigative activity is completely for
naught – yet the FBI keeps all of the information it collects through these dubious investigations, forever.

Percentage of FBI International Terrorism
Referrals Declined by DOJ
100

2001: 33%

90

2002: 56%

80

2003: 77%

70
60

2004: 72%

50

Percentage of FBI International
Terrorism Referrals Declined

40
30

2005: 84%
2006: 87%

20
10
0
2001

2002

2003

2004

2005

2006

*See Transactional Records Access Clearinghouse, National Profile and Enforcement:Trends over Time (2006), http://trac.syr.
edu/tracfbi/newfindings/current/ (last visited Dec. 1, 2008);Todd Lochner, Sound and Fury: Perpetual Prosecution and Department of Justice
Antiterrorism Efforts, 30 Law & Policy 168, 179 (2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1109250 (“In
fiscal year 2003 alone the FBI opened over 25,000 terrorism investigations, a figure that dwarfs all declinations by federal prosecutors
since that time”).

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NEW SUNSET DATES CREATE OVERSIGHT OPPORTUNITY
When Congress reauthorized the Patriot Act in 2006, it established new expiration dates for two Patriot Act
provisions and for a related provision of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA).18
Under the reauthorization these three provisions, section 206 and section 215 of the Patriot Act and section
6001 of the IRTPA, are all set to expire on December 31, 2009. The 111th Congress will revisit these provisions
this year, which creates an opportunity for Congress to examine and evaluate the government’s use and abuse of all
Patriot Act authorities, as well as other post-9/11 surveillance or security programs.
Section 206 of the Patriot Act authorizes the government to obtain “roving wiretap” orders from the Foreign
Intelligence Surveillance Court (FISC) whenever a subject of a wiretap request uses multiple communications
devices. The FISC is a secret court established under the Foreign Intelligence Surveillance Act (FISA) that issues
classified orders for the FBI to conduct electronic surveillance or physical searches in intelligence investigations
against foreign agents and international terrorists. Unlike roving wiretaps authorized for criminal investigations,
section 206 does not require the order to identify either the communications device to be tapped nor the individual
against whom the surveillance is directed, which is what gives section 206 the Kafkaesque moniker, the “John Doe
roving wiretap provision.” The reauthorized provision requires the target to be described “with particularity,” and
the FBI to file an after-the-fact report to the FISC to explain why the government believed the target was using the
phones it was tapping. However, it does not require the government to name the target, or to make sure its roving
wiretaps are intercepting only the target’s communications. The power to intercept a roving series of unidentified
devices of an unidentified target provides government agents with an inappropriate level of discretion reminiscent
of the general warrants that so angered the American colonists. There is virtually no public information available
regarding how the government uses section 206.
Likewise, little is known about the way the government uses section 6001 of the IRTPA, which is known as the
“lone wolf ” provision. Section 6001 authorizes government agencies to obtain secret FISA surveillance orders
against individuals who are not connected to any international terrorist group or foreign nation. The government
justified this provision by imagining a hypothetical “lone wolf,” an international terrorist operating independently
of any terrorist organization, but there is little evidence to suggest this imaginary construct had any basis in reality.
Moreover, since terrorism is a crime, there is no reason to believe that the government could not obtain a Title III
surveillance order from a criminal court if the government had probable cause to believe an individual was planning
an act of terrorism.19 Quite simply, this provision allows the government to avoid the more exacting standards for
obtaining electronic surveillance orders from criminal courts. No public records are available to document whether,
or how, the government has used this power.
Section 215 of the Patriot Act provides a sweeping grant of authority for the government to obtain secret FISC
orders demanding “any tangible thing” it claims is relevant to an authorized investigation regarding international
terrorism or espionage. Known as the “library provision,” section 215 significantly expands the types of items the
government can demand under FISA, and lowers the standard of proof necessary to obtain an order. Prior to the
Patriot Act, FISA required probable cause to believe the target was an agent of a foreign power. Section 215 only
requires the government to claim the items sought are relevant to an authorized investigation. Most significant in
this change of standard, however, was the removal of the requirement for the FBI to show that the items sought
pertain to a person the FBI is investigating. Under section 215, the government can obtain orders for private records

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or items belonging to people who are not even under suspicion of involvement with terrorism or espionage,
including U.S. citizens and lawful resident aliens, not just foreigners.
Section 215 orders come with compulsory non-disclosure orders, or “gags,” which contributed to the secrecy
surrounding how they were being used. To ensure that it would have at least some information upon which to
evaluate Patriot Act powers before the next sunset period, Congress included a provision in the 2006 Patriot Act
reauthorization that required the Department of Justice Inspector General (IG) to audit the FBI’s use of National
Security Letters (NSLs) and Section 215 orders.20 These reports provided the first thorough examination of the
implementation of the post-9/11 anti-terrorism powers. They also confirmed what our nation’s founders already
knew: unchecked authority is too easily abused.

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EVIDENCE OF ABUSE: THE INSPECTOR GENERAL AUDITS

National Security Letters
NSLs are secret demand letters issued without judicial review to obtain sensitive personal information such as
financial records, credit reports, telephone and e-mail communications data and Internet searches. The FBI had
authority to issue NSLs through four separate statutes, but these authorities were significantly expanded by section
505 of the Patriot Act.21 Section 505 increased the number of officials who could authorize NSLs and reduced
the standard necessary to obtain information with them, requiring only an internal certification that the records
sought are “relevant” to an authorized counterterrorism or counter-intelligence investigation. The Patriot Act
reauthorization made the NSL provisions permanent.
The NSL statutes now allow the FBI and other executive branch agencies to obtain records about people who are
not known – or even suspected – to have done anything wrong. The NSL statutes also allow the government to
prohibit NSL recipients from disclosing that the government sought or obtained information from them. While
Congress modified these “gag orders” in the Patriot Act reauthorization to allow NSL recipients to consult a lawyer,
under the current state of the law NSLs are still not subject to any meaningful level of judicial review (ACLU
challenges to the NSL gag orders are described below).22
The first two IG audits, covering NSLs and section 215 orders issued from 2003 through 2005, were released in March
of 2007. They confirmed widespread FBI mismanagement, misuse and abuse of these Patriot Act authorities.23 The
NSL audit revealed that the FBI managed its use of NSLs so negligently that it literally did not know how many
NSLs it had issued. As a result, the FBI seriously under-reported its use of NSLs in its previous reports to Congress.
The IG also found that FBI agents repeatedly ignored or confused the requirements of the NSL authorizing statutes,
and used NSLs to collect private information against individuals two or three times removed from the subjects of
FBI investigations. Twenty-two percent of the audited files contained unreported legal violations.24 Most troubling,
FBI supervisors used hundreds of illegal “exigent letters” to obtain telephone records without NSLs by falsely
claiming emergencies, apparently finding even the lax standards of NSLs too onerous.25
On March 13, 2008, the IG released a second pair of audit reports covering 2006 and evaluating the reforms
implemented by the DOJ and the FBI after the first audits were released in 2007.26 Not surprisingly, the new reports
identified many of the same problems discovered in the earlier audits. The 2008 NSL report showed that the FBI
issued 49,425 NSLs in 2006 (a 4.7 percent increase over 2005), and confirmed the FBI is increasingly using NSLs
to gather information on U.S. persons (57 percent in 2006, up from 53 percent in 2005).27
The 2008 IG audit also revealed that high-ranking FBI officials, including an assistant director, a deputy assistant
director, two acting deputy directors and a special agent in charge, improperly issued eleven “blanket NSLs” in
2006 seeking data on 3,860 telephone numbers.28 None of these “blanket NSLs” complied with FBI policy and
eight imposed unlawful non-disclosure requirements on recipients.29 Moreover, the “blanket NSLs” were written
to “cover information already acquired through exigent letters and other informal responses.”30 The IG expressed
concern that such high-ranking officials would fail to comply with FBI policies requiring FBI lawyers to review
all NSLs, but it seems clear enough that this step was intentionally avoided because the officials knew these NSL

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FACES of
SURVEILLANCE
requests were illegal.31 It would be difficult to call this conduct anything but
intentional.
The ACLU successfully challenged the constitutionality of the original Patriot
Act’s gag provisions, which imposed a categorical and blanket non-disclosure
order on every NSL recipient.32 Upon reauthorization, the Patriot Act limited
these gag orders to situations when a special agent in charge certifies that
disclosure of the NSL request might result in danger to the national security,
interference with an FBI investigation or danger to any person. Despite this
attempted reform, the IG’s 2008 audit showed that 97 percent of NSLs issued by
the FBI in 2006 included gag orders, and that five percent of these NSLs contained
“insufficient explanation to justify imposition of these obligations.”33 While a
five percent violation rate may seem small compared to the widespread abuse
of NSL authorities documented elsewhere, these audit findings demonstrate
that the FBI continues to gag NSL recipients in an overly broad, and therefore
unconstitutional manner. Moreover, the IG found that gags were improperly
included in eight of the 11 “blanket NSLs” that senior FBI counterterrorism
officials issued to cover hundreds of illegal FBI requests for telephone records
through exigent letters.34
The FBI’s gross mismanagement of its NSL authorities risks security as much
as it risks the privacy of innocent persons. The IG reported that the FBI could
not locate return information for at least 532 NSL requests issued from the
field, and 70 NSL requests issued from FBI headquarters (28 percent of the
NSLs sampled).35 Since the law only allows the FBI to issue NSLs in terrorism
and espionage investigations, it cannot be assumed that the loss of these records
is inconsequential to our security. Intelligence information continuing to fall
through the cracks at the FBI through sheer incompetence is truly a worrisome
revelation.

PETER CHASE

is the Director of the

Plainville Public Library and was formerly
the Vice President of Library Connection Inc,
a consortium of 26 Connecticut libraries. In
2005, the FBI used an NSL to demand library
patron records from Library Connection
and imposed a gag order on the librarians,
prohibiting them from speaking to Congress
during the debate about the reauthorization
of the Patriot Act. Peter and his colleagues
decided to challenge the NSL demand and
gag. “The government was telling Congress
that it didn’t use the Patriot Act against
libraries and that no one’s rights had been
violated. I felt that I just could not be part
of this fraud being foisted on our nation.”
Bizarrely, the FBI continued to enforce the
gag order even after The New York Times
revealed Library Connection’s identity. The
librarians prevailed and the government
ultimately withdrew the record demand and
the gag order, permitting them to finally tell
their story.

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Section 215 Orders
The IG’s section 215 audits showed the number of FBI requests for section 215 orders was small by comparison
to the number of NSLs issued. Only six section 215 applications were made in 2007.36
The disparity between the number of section 215 applications and the number of NSLs issued seems to suggest that
FBI agents were bypassing judicial review in the section 215 process by using NSLs in a manner not authorized by
law. An example of this abuse of the system was documented in the IG’s 2008 section 215 report. The FBI applied
to the FISC for a section 215 order, only to be denied on First Amendment grounds. The FBI instead used NSLs
to obtain the information.
While this portion of the IG report is heavily redacted, it appears that sometime in 2006 the FBI twice asked the
FISC for a section 215 order seeking “tangible things” as part of a counterterrorism case. The court denied the
request, both times, because “the facts were too ‘thin’ and [the] request implicated the target’s First Amendment
rights.”37 Rather than re-evaluating the underlying investigation based on the court’s First Amendment concerns,
the FBI circumvented the court’s oversight and pursued the investigation using three NSLs that were predicated
on the same information contained in the section 215 application.38 The IG questioned the legality of the FBI’s
use of NSLs based on the same factual predicate contained in the section 215 request rejected by the FISC on
First Amendment grounds, because the authorizing
statutes for NSLs and section 215 orders contain
SUGGESTED REFORM OF NSL STATUTES
the same First Amendment caveat.39
The IG also discovered the FISC was not the
first to raise First Amendment concerns over this
investigation to FBI officials. Lawyers with the
Department of Justice Office of Intelligence Policy
Review(OIPR) raised the First Amendment issue
when the FBI sent the section 215 application
for its review.40 The OIPR is supposed to oversee
FBI intelligence investigations, but OIPR officials
quoted in the IG report said the OIPR has “not
been able to fully serve such an oversight role” and
that they were often bullied by FBI agents:
In addition, the former Acting Counsel
for Intelligence Policy stated that there is
a history of significant pushback from the
FBI when OIPR questions agents about
the assertions included in FISA applications.
The OIPR attorney assigned to Section
215 requests also told us that she routinely
accepts the FBI’s assertions regarding the
underlying investigations as fact and that the
FBI would respond poorly if she questioned
their assertions.41

18

RECLAIMING PATRIOTISM

•

Repeal the expanded NSL authorities that allow the FBI to
demand information about innocent people who are not the
targets of any investigation. Reinstate prior standards limiting
NSLs to information about terrorism suspects and other
agents of foreign powers.

•

Allow gag orders only upon the authority of a court, and only
when necessary to protect national security. Limit scope and
duration of such gag orders and ensure that their targets and
recipients have a meaningful right to challenge them before a
fair and neutral arbiter.

•

Impose judicial oversight of all Patriot Act authorities.
Allowing the FBI to self-certify that it has met the statutory
requirements invites further abuse and overuse of NSLs.
Contemporaneous and independent oversight of the issuance
of NSLs is needed to ensure that they are no longer issued
at the drop of a hat to collect information about innocent U.S.
persons. 

Two bills introduced in the 110th Congress would have reined in the
FBI’s use of NSLs: the National Security Letter Reform Act of 2007
(H.R. 3189) sponsored by Representative Jerrold Nadler (D-NY)
and the NSL Reform Act of 2007 (S. 2088) sponsored by Senator
Russ Feingold (D-WI). These were good bills that took great strides
toward limiting the FBI’s authority to issue NSLs. Assuming their
reintroduction in similar form, they should be acted upon promptly.
Further delay will simply mean that thousands more innocent
people will have their private records collected by the FBI.

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FACES of
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A former OIPR counsel for intelligence policy argued that while investigations
based solely on association with subjects of other national security investigations
were “weak,” they were “not necessarily illegitimate.”44 It is also important to
note that this investigation, based on simple association with the subject of
another FBI investigation, was apparently not an aberration. The FBI general
counsel told the IG the FBI would have to close “numerous investigations” if
they could not open cases against individuals who merely have contact with
other subjects of FBI investigations.45 Conducting “numerous investigations”
based upon mere contact, and absent facts establishing a reasonable suspicion of
wrongdoing, will only result in wasted effort, misspent security resources and
unnecessary violations of the rights of innocent Americans.
The FBI’s stubborn defiance of OIPR attorneys and the FISC demonstrates a
dangerous interpretation of the legal limits of the FBI’s authority at its highest
levels, and lays bare the inherent weakness of any set of internal controls. The
FBI’s use of NSLs to circumvent more arduous section 215 procedures confirms
the ACLU’s previously articulated concerns that the lack of oversight of the
FBI’s use of its NSL authorities would lead to such inappropriate use.
Moreover, despite the FBI’s infrequent use of section 215, the IG discovered
serious deficiencies in the way it managed this authority. The IG found
substantial bureaucratic delays at both FBI headquarters and OIPR in bringing
section 215 applications to the FISC for approval. While neither the FBI’s FISA
Management System nor DOJ’s OIPR tracking system kept reliable records
regarding the length of time section 215 requests remained pending, the IG
was able to determine that processing times for section 215 requests ranged
from ten days to an incredible 608 days, with an average delay of 169 days
for approved orders and 312 days for withdrawn requests.46 The IG found
these delays were the result of unfamiliarity with the proper process, simple
misrouting of the section 215 requests and an unnecessarily bureaucratic, selfimposed, multi-layered review process.47 Most tellingly, the IG’s 2008 report
found that the process had not improved since the IG identified these problems
had been identified in the 2007 audit.48 DOJ has used long processing times

Photo Credit: Molly Davis, Internet Archive

When the FISC raised First Amendment concerns about the FBI investigation,
the FBI general counsel decided the FBI would continue the investigation
anyway, using methods that had less oversight. When asked whether the court’s
concern caused her to review the underlying investigation for compliance
with legal guidelines that prohibit investigations based solely on protected
First Amendment activity, the general counsel said she did not because “she
disagreed with the court’s ruling and nothing in the court’s ruling altered her
belief that the investigation was appropriate.”42 Astonishingly, she put her own
legal judgment above the decision of the court. She added that the FISC “does
not have the authority to close an FBI investigation.”43

BREWSTER KAHLE

is the founder and

digital librarian of the Internet Archive,
a digital library. In November 2007, the
FBI used an NSL to demand personal
information about one of the Archive’s
users. The NSL also included a gag order,
prohibiting the Archive from revealing the
existence of the letter. In April 2008, the
FBI withdrew the unconstitutional NSL as
part of the settlement of a lawsuit brought
by the ACLU and the Electronic Frontier
Foundation. “The free flow of information is
at the heart of every library’s work. That’s
why Congress passed a law limiting the FBI’s
power to issue NSLs to America’s libraries.
While it’s never easy standing up to the
government - particularly when I was barred
from discussing it with anyone - I knew I had
to challenge something that was clearly
wrong. I’m grateful that I am able now to talk
about what happened to me, so that other
libraries can learn how they can fight back
from these overreaching demands.”

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for FISA applications as justification for expanding its surveillance powers and reducing FISC review, but this
evidence shows clearly that ongoing mismanagement at the FBI and OIPR drives these delays, not a lack of
authority.49 Congress should instead compel efficiency at these agencies by increasing its oversight and reining in
these expanded authorities.

SUGGESTED REFORMS
•

Repeal the expanded section 215 authorities that allow the FBI to demand
information about innocent people who are not the targets of any investigation.
Return to previous standards limiting the use of 215 authorities to gather
information only about terrorism suspects and other agents of foreign powers.

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FACES of
SURVEILLANCE
UNCONSTITUTIONAL:
COURT CHALLENGES TO THE PATRIOT ACT
Court challenges offered another source of information about the government’s
misuse of Patriot Act powers.

National Security Letter Gag Orders
The ACLU challenged the non-disclosure and confidentiality requirements
in NSLs in three cases. The first, Doe v. Mukasey, involved an NSL served
on an Internet Service Provider (ISP) in 2004 demanding customer records
pursuant to the Electronic Communications Privacy Act (ECPA).50 The letter
prohibited the anonymous ISP and its employees and agents “from disclosing
to any person that the FBI sought or obtained access to information or records
under these provisions.” In the midst of a lawsuit over the constitutionality of
the NSL provisions in ECPA, the Patriot Act reauthorization51 was enacted
amending the NSL provision but maintaining the government’s authority to
request sensitive customer information and issue gag orders – albeit in a slightly
narrower set of circumstances. In September 2007, the District Court for the
Southern District of New York found that even with the reauthorization
amendments the gag provisions violated the Constitution. The court struck
down the amended ECPA NSL statute in its entirety,52 with Judge Victor
Marrero writing that the statute’s gag provisions violated the First Amendment
and the principle of separation of powers.
In December 2008 the U.S. Court of Appeals for the Second Circuit upheld
the decision in part. The appeals court invalidated parts of the statute that
placed the burden on NSL recipients to initiate judicial review of gag orders,
holding that the government has the burden to justify silencing NSL recipients.
The appeals court also invalidated parts of the statute that narrowly limited
judicial review of the gag orders – provisions that required the courts to treat
the government’s claims about the need for secrecy as conclusive and required
the courts to defer entirely to the executive branch.53 As this is written, the
FBI still maintains its gag on the ISP even though it abandoned its demand
for the records.

TARIQ RAMADAN,

a Swiss native and

Visiting Fellow at the University of Oxford, is
a leading scholar of the Muslim world. The
U.S. government revoked Ramadan’s visa in
August 2004, preventing him from assuming
a tenured teaching position at the University
of Notre Dame and from attending speaking
engagements with U.S. audiences. Although
Professor Ramadan has been a consistent
critic of terrorism and those who use it, the
Department of Homeland Security cited a
provision of the Patriot Act that allows the
government to deny a visa to anyone whom
the government believes has “endorse[d] or
espouse[d] terrorist activity” as the basis for
its decision. The government later withdrew
that accusation but Professor Ramadan
remains barred from the country. 

The second case, Library Connection v. Gonzales, involved an NSL served on a
consortium of libraries in Connecticut.54 In September 2006, a federal district
court ruled that the gag on the librarians violated the First Amendment. The
government ultimately withdrew both the gag and its demand for records.

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The third case, Internet Archive v. Mukasey, involved an NSL served on a digital library.55 In April 2008, the FBI
withdrew the NSL and the gag as a part of the settlement of the legal challenge brought by the ACLU and the
Electronic Frontier Foundation.56 In every case in which an NSL recipient has challenged an NSL in court, the
government has withdrawn its demand for records, creating doubt regarding the government’s need for the records
in the first place.
In addition, a 2007 ACLU Freedom of Information Act suit revealed that the FBI was not the only agency abusing
its NSL authority.The Department of Defense (DOD) does not have the authority to investigate Americans, except
in extremely limited circumstances. Recognizing this, Congress gave the DOD a narrow NSL authority, strictly
limited to non-compulsory requests for information regarding DOD employees in counterterrorism and counterintelligence investigations,57 and to obtaining financial records58 and consumer reports59 when necessary to conduct
such investigations. Only the FBI has the authority to issue compulsory NSLs for electronic communication records
and for certain consumer information from consumer reporting agencies. This authority can only be used in
furtherance of authorized FBI investigations. Records obtained by the ACLU show the DOD issued hundreds
of NSLs to collect financial and credit information since September 2001, and at times asked the FBI to issue
NSLs compelling the production of records the DOD wanted but did not have the authority to obtain. The
documents suggest the DOD used the FBI to circumvent limits on the DOD’s investigative authority and to obtain
information it was not entitled to under the law.The FBI compliance with these DOD requests – even when it was
not conducting its own authorized investigation – is an apparent violation of its own statutory authority.60

Material Support for Terrorism Provisions
Laws prohibiting material support for terrorism, which were expanded by the Patriot Act, are in desperate need
of re-evaluation and reform. Intended as a mechanism to starve terrorist organizations of resources, these statutes
instead undermine legitimate humanitarian efforts and perpetuate the perception that U.S. counterterrorism
policies are unjust.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), passed in the wake of the Oklahoma City
bombing, criminalized providing material support to terrorists or terrorist organizations.61 Title 18 U.S.C. § 2339A
makes it a federal crime to knowingly provide material support or resources in preparation for or in carrying
out specified crimes of terrorism, and 18 U.S.C. § 2339B outlaws the knowing provision of material support or
resources to any group of individuals the secretary of state has designated a foreign terrorist organization (FTO).62
AEDPA defined “material support or resources” as “currency or other financial securities, financial services, lodging,
training, safe-houses, false documentation or identification, communications equipment, facilities, weapons, lethal
substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.”
AEDPA also amended the Immigration & Nationality Act (INA) to give the secretary of state almost unfettered
discretion to designate FTOs.63
The secretary of state may designate an organization as an FTO if she finds that the organization is foreign, that
it engages in or retains the capacity and intent to engage in terrorist activities, and that its activities threaten the
national defense, foreign relations or economic interests of the United States. An FTO may challenge its designation
in federal court but the INA gives the government the ability to use classified information in camera and ex parte, so
the designated organization never gets to see, much less dispute the allegations against it. Moreover, a judge must

22

RECLAIMING PATRIOTISM

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FACES of
SURVEILLANCE
determine that the government acted in an arbitrary and capricious manner
– a very difficult legal standard for an FTO to prove - in order to overturn a
designation.
Section 805 of the Patriot Act expanded the already overbroad definition
of “material support and resources” to include “expert advice or assistance,”
and section 810 increased penalties for violations of the statute.64 Through
IRTPA, Congress narrowed these provisions in 2004 to require that a person
have knowledge that the organization is an FTO, or has engaged or engages
in terrorism. However, the statute still does not require the government to
prove that the person specifically intended for his or her support to advance
the terrorist activities of the designated organization.65 In fact, the government
has argued that those who provide support to designated organizations can run
afoul of the law even if they oppose the unlawful activities of the designated
group, intend their support to be used only for humanitarian purposes and take
precautions to ensure that their support is indeed used for these purposes.66 This
broad interpretation of the material support prohibition effectively prevents
humanitarian organizations from providing needed relief in many parts of the
world where designated groups control schools, orphanages, medical clinics,
hospitals and refugee camps.67
In testimony before Congress in 2005, ACLU of Southern California staff
attorney Ahilan T. Arulanantham gave a first-hand account of the difficulties he
experienced while providing humanitarian aid to victims of the 2004 tsunami
in Sri Lanka.68 At the time of the tsunami approximately one-fifth of Sri Lanka
was controlled by the Liberation Tigers of Tamil Eelam (LTTE), an armed
group fighting against the Sri Lankan government. The U.S. government
designated the LTTE as an FTO, but for the 500,000 people living within
its territory, the LTTE operates as an authoritarian military government. As a
result, providing humanitarian aid to needy people in this part of Sri Lanka
almost inevitably requires dealing directly with institutions the LTTE controls.
And because there is no humanitarian exemption from material support laws
(only the provision of medicine and religious materials are exempted), aid
workers in conflict zones like Sri Lanka are at risk of prosecution by the U.S.
government. Arulanantham explained the chilling effect of these laws:

WANDA GUTHRIE,

a volunteer with

the Thomas Merton Center for Peace &
Justice, an organization founded in 1972 to
bring people from diverse philosophies and
faiths together to work, through nonviolent
efforts, for a more just and peaceful world,
was monitored by the FBI Joint Terrorism
Task Force. “The government’s surveillance
of the TMC events and gatherings which
may include those of Roots for Peace is just
horrible. Spying invades peoples’ privacy
and sacred space when they are speaking
out - and make no bones about it, when
you’re speaking out for peace it is sacred
space. For the FBI to monitor us as if we
were terrorists is unconscionable.”

I have spoken personally with doctors, teachers, and others
who want to work with people desperately needing their
help in Sri Lanka, but fear liability under the “expert advice,”
“training,” and “personnel” provisions of the law. I also know
people who feared to send funds for urgent humanitarian
needs, including clothing, tents, and even books, because
they thought that doing so might violate the material
support laws. I have also consulted with organizations, in

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23

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my capacity as an ACLU attorney, that seek to send money for humanitarian assistance to areas
controlled by designated groups. I have heard those organizations express grave concerns about
continuing their work for precisely these reasons. Unfortunately, the fears of these organizations
are well-justified. Our Department of Justice has argued that doctors seeking to work in areas
under LTTE control are not entitled to an injunction against prosecution under the material
support laws, and it has even succeeded in winning deportation orders under the immigration
law’s definition of material support, for merely giving food and shelter to people who belong to
a “terrorist organization” even if that group is not designated.69  
Tragically, our counterterrorism laws make it more difficult for U.S. charities to operate in parts of the world where
their good works could be most effective in winning the battle of hearts and minds. In 2006 Congress passed the
Patriot Act reauthorization, making the material support provisions permanent.70
Such unjust and counter-productive consequences are a direct result of the overbroad and unconstitutionally vague
definition of material support in the statute. The First Amendment protects an individual’s right to join or support
political organizations and to associate with others in order to pursue common goals. The framers understood that
protecting speech and assembly were essential to the creation and functioning of a vibrant democracy. As a result,
the government cannot punish mere membership in or political association with disfavored groups – even those
that engage in both lawful and unlawful activity – without the strictest safeguards.
The material support provisions impermissibly criminalize a broad range of First Amendment-protected activity,
both as a result of their sweeping, vague terms and because they do not require the government to show that a
defendant intends to support the criminal activity of a designated FTO. Courts have held that vague statutes should
be invalidated for three reasons: “(1) to avoid punishing people for behavior that they could not have known was
illegal; (2) to avoid subjective enforcement of laws…; and
(3) to avoid any chilling effect on the exercise of First
Amendment freedoms.”71 Material support prohibitions
SUGGESTED REFORM
against “training,” “services” and “expert advice and
OF MATERIAL SUPPORT STATUTES
assistance” fail each of these three standards.
•

Any suggestion that the government would not use
the material support statutes to prosecute purely First
Amendment-protected speech is belied by the fact
that it already has. In a most notorious example, the
government brought charges against University of
Idaho Ph.D. candidate Sami Omar Al-Hussayen, whose
volunteer work managing websites for a Muslim charity
led to a six-week criminal trial for materially supporting
terrorism. The prosecution argued that by running a
website that had links to other websites that carried
speeches advocating violence, Al-Hussayen provided
“expert assistance” to terrorists. A jury ultimately
acquitted Al-Hussayen of all terrorism-related charges.72

24

RECLAIMING PATRIOTISM

Amend the material support statutes to require
specific intent to further an organization’s unlawful
activities before imposing criminal liability.

•

Remove overbroad and impermissibly vague
language, such as “training,” “service” and “expert
advice and assistance,” from the definition of
material support.

•

Establish an explicit duress exemption to remove
obstacles for genuine refugees and asylum-seekers
to enter and/or remain in the United States.

•

Provide notice, due process and meaningful review
requirements in the designation process, and
permit defendants charged with material support
to challenge the underlying designation in their
criminal cases.

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FACES of
SURVEILLANCE
The material support provisions also impose guilt by association in violation of
the Fifth Amendment. Due process requires the government to prove personal
guilt – that an individual specifically intended to further the group’s unlawful
ends – before criminal sanctions may be imposed.73 Even with the IRTPA
amendments, the material support provisions do not require specific intent.
Rather, the statutes impose criminal liability based on the mere knowledge
that the group receiving support is an FTO or engages in terrorism. Indeed,
a Florida district court judge in United States v. Al-Arian warned that under
the government’s reading of the material support statute, “a cab driver could
be guilty for giving a ride to an FTO member to the UN.”74 And these
constitutional deficiencies are only exacerbated by the unfettered discretion
these laws give the secretary of state to designate groups, and the lack of due
process afforded to groups that wish to appeal their designation.
A recent study of material support prosecutions from September 2001 to
July 2007 reveals an unusually high acquittal rate for these cases.75 The DOJ’s
trial conviction rate for all felonies is fairly steady over the years: 80% in
2001, 82% in 2002, 82% in 2003 and 80% in 2004.76 But almost half (eight
of 17) of the defendants charged with material support of terrorism under
§2339B who chose to go to trial were acquitted, and three others successfully
moved to have their charges dismissed before trial.77 This disparity suggests
that the government is overreaching in charging material support violations
for behavior not reasonably linked to illegal or violent activity. The data is
especially troubling given that the median sentence for a conviction at trial for
material support under §2339B is 84 months longer than for a guilty plea to
the same offense.78 That those defendants who risk the additional 84 months
in prison are acquitted in almost half of the cases raises a disturbing question
of whether the government is using the draconian sentences provided in this
Patriot Act-enhanced statute to compel plea bargains where the evidence might
not support conviction at trial. Of the 61 defendants whose cases were resolved
during the study period, 30 pled guilty to material support and another 11
pled guilty to other charges. Only nine of the remaining 20 were convicted.

JOHN DOE,

the President of an Internet

Service Provider, is an NSL recipient who
has been under an FBI gag order for more
than four years. John Doe challenged the
constitutionality of the NSL statute. Because
of the gag order, the lawsuit was initially
filed under seal, and even today the ACLU
is prohibited from disclosing its client’s
identity. The FBI continues to maintain
the gag order even though the underlying
investigation is more than four years old
(and may well have ended), and even though
the FBI abandoned its demand for records
two years ago. In December of 2008, the
U.S. Court of Appeals for the Second Circuit
ruled that the NSL statute’s gag provisions,
as amended by Congress in 2006, violated
the First Amendment.

In Humanitarian Law Project v. Mukasey, a group of organizations and individuals
seeking to support the nonviolent and lawful activities of Kurdish and Tamil
humanitarian organizations challenged the constitutionality of the material
support provisions on First and Fifth Amendment grounds.79 They contended
that the law violated the Constitution by imposing a criminal penalty for
association without requiring specific intent to further an FTO’s unlawful
goals, and that the terms included in the definition of “material support or
resources” were impermissibly vague. In 2007, the U.S. Court of Appeals for
the Ninth Circuit found the terms “training” and “service,” and part of the
definition of “expert advice and assistance” unconstitutionally vague under the
Fifth Amendment.80 The government is appealing this decision.

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Ideological Exclusion
The Patriot Act revived the discredited practice of ideological exclusion: denying foreign citizens’ entry into the
U.S. based solely on their political views and associations, rather than their conduct.
Section 411 of the Patriot Act amended the INA to expand the grounds for denying foreign nationals admission
into the United States, and for deporting those already here.81 This section authorizes the exclusion not only of
foreign nationals who support domestic or foreign groups the U.S. has designated as “terrorist organizations,” but
also those who support “a political, social or other similar group whose public endorsement of acts of terrorist
activity the secretary of state has determined undermines United States efforts to reduce or eliminate terrorist
activities.” Moreover, Congress added a provision that authorizes the exclusion of those who have used a “position
of prominence within any country to endorse or espouse terrorist activity, or to persuade others to support terrorist
activity or a terrorist organization, in a way that the secretary of state has determined undermines United States
efforts to reduce or eliminate terrorist activities.”82 Though ostensibly directed at terrorism, the provision focuses on
words, not conduct, and its terms are broad and easily manipulated. The State Department’s Foreign Affairs Manual
takes the sweeping view that the provision applies to foreign
nationals who have voiced “irresponsible expressions of
opinion.” Over the last six years, dozens of foreign scholars,
SUGGESTED REFORM
artists and human rights activists have been denied entry to
OF IDEOLOGICAL EXCLUSION STATUTES
the United States not because of their actions – but because

of their political views, their writings and their associations.
•
Ban ideological exclusion based on speech that
would be protected in the United States under the
First Amendment.
During the Cold War, the U.S. was notorious for excluding
suspected communists. Among the many “dangerous”
•
Repeal the “endorse or espouse” provision.
individuals excluded in the name of national security were
Nobel Laureates Gabriel Garcia Márquez, Pablo Neruda
and Doris Lessing, British novelist Graham Greene, Italian
playwright Dario Fo and Pierre Trudeau, who later became
prime minister of Canada. When Congress repealed the Cold War-era communist exclusion laws, it determined
that “it is not in the interests of the United States to establish one standard of ideology for citizens and another
for foreigners who wish to visit the United States.” It found that ideological exclusion caused “the reputation of
the United States as an open society, tolerant of divergent ideas” to suffer. When Congress enacted the “endorse or
espouse” provision, it ignored this historical lesson.

The ACLU challenged the constitutionality of “ideological exclusion” in American Academy of Religion v. Chertoff. In
July 2004, the Department of Homeland Security (DHS) used the provision to revoke the visa of Tariq Ramadan,
a Swiss citizen, one of Europe’s leading scholars of Islam and a vocal critic of U.S. policy. Ramadan had accepted a
position to teach at the University of Notre Dame. After DHS and the State Department failed to act on a second
visa application that would have permitted Ramadan to teach at Notre Dame, he applied for a B visa to attend and
participate in conferences in the U.S. After the government failed to act on that application for many months, in
January 2006, the American Academy of Religion (AAR), the American Association of University Professors and
PEN American Center – organizations that had invited Professor Ramadan to speak in the United States – filed suit.
They argued that the government’s exclusion of Professor Ramadan, as well as the ideological exclusion provision,
violated their First Amendment right to receive information and hear ideas, and compromised their ability to

26

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FACES of
SURVEILLANCE

The district court held that the government could not exclude Ramadan
without providing a legitimate reason and that it could not exclude Ramadan
based solely on his speech. It ordered the government to adjudicate Ramadan’s
pending visa application within 90 days.84 Thereafter, however, the government
found an entirely new basis for barring Ramadan. Invoking the expanded
material support provisions of the Real ID Act, the government determined that
Professor Ramadan was inadmissible because of small donations he made from
1998 to 2002 to a lawful European charity that provides aid to Palestinians.85
The plaintiffs continued to challenge the legality of Professor Ramadan’s
exclusion as well as the constitutionality of the ideological exclusion provision.
In July 2007, the district court upheld Professor Ramadan’s exclusion but did
not rule on the constitutionality of the ideological exclusion provision, finding
instead that the plaintiffs lacked standing. The ACLU appealed and the case
remains pending before the the U.S. Court of Appeals for the Second Circuit.
The imposition of an ideological litmus test at the border is raw censorship
and violates the First Amendment. It allows the government to decide which
ideas Americans may or may not hear. Ideological exclusion skews political and
academic debate in the U.S. and deprives Americans of information they have
a constitutional right to hear. Particularly now, Americans should be engaged
with the world, not isolated from it.

Photo Credit: AP Images

engage in an intellectual exchange with foreign scholars. When challenged in
court, the government abandoned its allegation that Professor Ramadan had
endorsed terrorism. 83

BRANDON MAYFIELD,

an American

attorney practicing in Portland, Oregon,
was subjected to secret FISA searches
of his home and office after an FBI agent
mistakenly identified his fingerprint on
materials related to a terrorist bombing
in Madrid, Spain. The FBI agents who
conducted the searches of the Mayfield
home left tell-tale signs of their presence,
leading the Mayfield family to fear their
home was being burglarized. Mayfield
challenged the constitutionality of the
Patriot Act provision that allows FBI agents
to use FISA orders to gather evidence in a

Relaxed FISA Standards
Section 218 of the Patriot Act amended FISA to eliminate the requirement
that the primary purpose of a FISA search or surveillance must be to gather foreign
intelligence.86 Under the Patriot Act’s amendment, the government needs to
show only that a significant purpose of the search or surveillance is to gather
foreign information in order to obtain authorization from the FISC.87 This
seemingly minor change allows the government to use FISA to circumvent the
basic protections of the Fourth Amendment, even where criminal prosecution
is the government’s primary purpose for conducting the search or surveillance.
This amendment allows the government to conduct intrusive investigations to
gather evidence for use in criminal trials without establishing probable cause
of illegal activity before a neutral and disinterested magistrate, and without
providing notice required with ordinary warrants. Instead, the government can
obtain authorization for secret searches from a secret and unaccountable court
based on an assertion of probable cause that the target is an “agent of a foreign
power,” a representation the court must accept unless “clearly erroneous.” An

criminal investigation. “In the debate over
the scope of the government’s authority to
wiretap Americans we often hear people
say, ‘if you’re not doing something wrong
you have nothing to worry about.’ I am here
to tell you that even the innocent can have
their lives turned upside-down when laws
designed to protect against unrestrained
government actions are weakened.”

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improperly targeted person has no way of knowing his or her rights have been violated, so the government can
never be held accountable.
Lowering evidentiary standards does not make it easier for the government to spy on the guilty. Rather, it makes
it more likely that the innocent will be unfairly ensnared in overzealous investigations. A most disturbing example
of the way this provision enables the government to spy on innocent Americans is the case of Brandon Mayfield,
an American citizen and former U.S. Army officer who lives with his wife and three children in Oregon where he
practices law.
In March 2004, the FBI began to suspect Mayfield of involvement in a series of terrorist bombings in Madrid,
Spain, based on an inaccurate fingerprint identification. Although Mayfield had no criminal record and had not
left the U.S. in over 10 years, he and his family became subject to months of secret physical searches and electronic
surveillance approved by the FISC. In May 2004, Mayfield was arrested and imprisoned for weeks until news reports
revealed that the fingerprints had been matched to an Algerian national, Ouhane Daoud. Mayfield was released
the following day. In a subsequent lawsuit, Mayfield v. United States, a federal district court held that the Patriot Act
amendment violated the Fourth Amendment by allowing the government to avoid traditional judicial oversight
to obtain a surveillance order, retain and use information collected in criminal prosecutions without allowing the
targeted individuals a meaningful opportunity to challenge
the legality of the surveillance, intercept communications
SUGGESTED REFORM OF FISA STATUTES
and search a person’s home without ever informing the

targeted individual and circumvent the Fourth Amendment’s
•
Restore the primary purpose requirement to FISA.
particularity requirement.88

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FACES of
SURVEILLANCE

The Patriot Act may have been the first overt expansion of domestic spying
powers after September 11, 2001 – but it certainly wasn’t the last, and arguably
wasn’t even the most egregious. There have been many significant changes
to our national security laws over the past seven years, and addressing the
excesses of the Patriot Act without examining the larger surveillance picture
may not be enough to rein in an out-of-control intelligence-gathering regime.
Congress must not only conduct vigorous oversight of the government’s use of
Patriot Act powers, it must also review the other laws, regulations and guidelines
that now permit surveillance of Americans without suspicion of wrongdoing.
Congress should scrutinize the expanded surveillance authorities found in the
Attorney General Guidelines for Domestic FBI Operations, Executive Order
12333, IRTPA, the amended FISA, and the ECPA. Ultimately, Congress
must examine the full panoply of intelligence activities, especially domestic
intelligence gathering programs, and encourage a public debate about the
proper nature and reach of government surveillance programs on American
soil and abroad.
Fundamentally, Congress must recognize that overbroad, ineffective or abusive
surveillance programs are counterproductive to long-term government
interests because they undermine public confidence and support of U.S.
anti-terrorism programs. An effort by Congress to account fully for abuses of
government surveillance authorities in the recent past is absolutely necessary
for several reasons. First, only by holding accountable those who engaged in
intentional violations of law can we re-establish the primacy of the law and
deter future abuses. Second, only by creating an accurate historical record of
the failure of these abusive programs can government officials learn from these
mistakes and properly reform our national security laws and policies. Finally,
only by vigorously exercising its oversight responsibility in matters of national
security can Congress reassert its critical role as an effective check against abuse
of executive authority.

Photo Credit: Rick Rocamora

ONLY ONE PIECE OF THE PUZZLE

KONSTANTY HORDYNSKI,

a student

at the University of California at Santa Cruz,
was quite surprised to learn that he was
in a Pentagon domestic threat database. “I
didn’t protest with Students Against War to
be threatening, or to be un-American, or to
waste anyone’s time. I protested because
it was a way I could stand up for what I
believed was right. I knew that my actions
were protected by the Constitution. Yet
the government believes that the peaceful
protest in which I took part is a “credible
threat.” When lawfully standing up for my
beliefs—standing up for what I think is right
and just—is a “threat” to the government,
something is wrong…”

The Constitution gives Congress the responsibility to conduct oversight, and
Congress must fulfill this obligation to ensure the effective operation of our
government. Congress should begin vigorous and comprehensive oversight
hearings to examine all post-9/11 national security programs to evaluate their
effectiveness and their impact on Americans’ privacy and civil liberties, and it
should hold these hearings in public to the greatest extent possible.

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CONCLUSION – IT IS TIME TO RECLAIM PATRIOTISM
In 2009, Congress must once again revisit the Patriot Act, as three temporary provisions from the 2006 reauthorization
are set to expire by the end of the year. This time, however, Congress is not completely in the dark. The IG audits
ordered in the Patriot Act reauthorization proved the government lied when it claimed that no Patriot Act powers
had been abused. Critics former Attorney General John Ashcroft once derided as hysterical librarians were proven
prescient in their warnings that these arbitrary and unchecked authorities would be misused.89 Just like the colonists
who fought against writs of assistance, these individuals recognized that true patriotism meant standing up for
their rights, even in the face of an oppressive government and an unknowable future. Certainly there are threats to
our security, as there always have been, but our nation can and must address those threats without sacrificing our
essential values or we will have lost the very freedoms we strive to protect.
Courts all around the country have spoken, striking down several Patriot Act provisions that infringed on the
constitutional rights of ordinary Americans. Yet the government has successfully hidden the true impact of the
Patriot Act under a cloak of secrecy that even the courts couldn’t – or wouldn’t – penetrate.
It is time for Congress to act. Lawmakers should take this opportunity to examine thoroughly all Patriot Act powers,
and indeed all national security and intelligence programs, and bring an end to any government activities that are
illegal, ineffective or prone to abuse.This oversight is essential to the proper functioning of our constitutional system
of government and becomes more necessary during times of crisis, not less. Serving as an effective check against the
abuse of executive power is more than just Congress’ responsibility; it is its patriotic duty.

30

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APPENDIX – THE PATRIOT ACT AT A GLANCE
Many provisions in the amended Patriot Act have been abused – or have the potential to be – because of their broad
and sweeping nature.The sections detailed on these pages need congressional oversight. Despite numerous hearings
during the 2005 reauthorization process, there is a dearth of meaningful information about their use. Congress and
the public need real answers, and the forthcoming expiration date is the perfect opportunity to revisit the provisions
that have worried civil libertarians since 2001:
•

Section 203: Information Sharing.The Patriot Act and subsequent statutes encourage or require information
sharing.While it is important for critical details to reach the right people, little is known about the breadth
of use and the scope of distribution of our personal information.

•

Section 206: Roving “John Doe” Wiretaps. Typical judicial orders authorizing wiretaps, including Foreign
Intelligence Surveillance Act (FISA) wiretap orders, identify the person or place to be monitored. This
requirement has its roots firmly planted in the original Bill of Rights – the giants of our history having
insisted on such a concept, now memorialized in the Fourth Amendment, where it calls for warrants
“particularly describing the place to be searched, and the persons or things to be seized.” However, these
roving warrants are required to specify neither person nor place, amounting to the “general warrants” that
our nation’s founders had abhorred. This section will expire on December 31, 2009.

•

Section 209: Access to Stored Communications. The Patriot Act amended criminal statutes so that the
government can obtain opened emails and emails older than 180 days with only a subpoena instead of a
warrant.

•

Section 212: Voluntary Disclosures and Exigent Letters. Current law permits telecommunications
companies to release consumer records and content to the government when they have a good faith
belief it relates to a threat. However, the Patriot Act and subsequent legislation lowered that trigger from a
“reasonable” to “good faith” belief that the information reflects an emergency. The act also took away the
requirement that the threat be “imminent.” The Department of Justice Inspector General has confirmed
that the government is using this loophole to request information in the absence of true emergencies.

•

Section 213: Sneak and Peek Searches. These are delayed notice search warrants. Before the Patriot
Act, criminal search warrants required prior notification except in exigent circumstances or for stored
communications when notice would “seriously jeopardize an investigation.” The Patriot Act expanded
this once narrow loophole – used solely for stored communications – to all searches. Agents might now
use this vague catch-all to circumvent longstanding Fourth Amendment protections.These sneak and peek
warrants are not limited to terrorism cases – thereby undermining one of the core justifications for the
original Patriot Act. In fact, for the 2007 fiscal year, the government reports that out of 690 sneak and peak
applications, only seven, or about one percent, were used for terrorism cases.

•

Section 214: Pen Register/Trap and Trace Orders Under FISA. Pen register/trap and trace devices pick
up communication records in real time and provide the government with a streaming list of phone calls
or emails made by a person or account. Before the Patriot Act, this section was limited to tracking the

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communications of suspected terrorists. Now, it can be used against people who are generally relevant to
an investigation, even if they have done nothing wrong.
•

•

Section 216: Criminal Pen Register/ Trap and Trace Orders. The Patriot Act amended the criminal code
to clarify that the pen register/trap and trace authority permits the government to collect Internet records
in real time. However, the statute does not define ‘Internet record’ clearly. Congress needs to make sure
that the government is not abusing this provision to collect lists of everything an innocent person reads
on the Internet.

•

Section 218: “Significant Purpose” to Begin an Intelligence Wiretap or Conduct Physical Searches. Before
the Patriot Act, the extensive and secretive powers under FISA could only be used when the collection
of foreign intelligence – as opposed to prosecution – was the primary purpose of the surveillance. Now,
collecting foreign intelligence need only be a “significant” purpose, permitting the government to use this
lower FISA warrant standard in place of a traditional criminal warrant. Congress must find out whether
the government has conducted surveillance under the relaxed FISA standards for criminal prosecutions.

•

Section 219: Single Jurisdiction Search Warrants. The Patriot Act allows judges sitting in districts where
terrorism-related activities may have occurred to issue warrants outside of their district, possibly causing
hardship on a recipient who may want to challenge the warrant.

•

Section 220: Nationwide Search Warrants for Electronic Evidence. This provision permits a judge to issue
an order for electronic evidence outside of the district in which he or she sits.This provision may cause a
hardship for a remote Internet or phone service provider who wants to challenge the legality of the order.

•

Section 411: Ideological Exclusion. The Patriot Act amended the Immigration and Nationality Act to
expand the terrorism-related grounds for denying foreign nationals admission into the United States, and
for deporting aliens already here. This revived the discredited practice of ideological exclusion: excluding
foreign citizens based solely on their political views and associations, rather than their conduct.

•

32

Section 215: FISA Orders for Any Tangible Thing. These are FISA Court orders for any tangible thing
– library records, a computer hard drive, a car – the government claims is relevant to an investigation to
protect against terrorism. Since passage of the Patriot Act, the person whose things are being seized need
not be a suspected terrorist or even be in contact with one. This section is scheduled to expire on Dec.
31, 2009.

Section 505: National Security Letters. NSLs are demands for customer records from financial institutions,
credit bureaus and communications service providers.They have existed for decades, but prior to passage of
the Patriot Act and its subsequent amendments, they were limited to collecting information on suspected
terrorists or foreign actors. Recipients are gagged from telling anyone besides their lawyers and those
necessary to respond to the request that they either received or complied with a NSL. The gag has been
struck down as unconstitutional but remains on the books. In 2007 and 2008, the Justice Department’s
inspector general reported that upwards of 50,000 NSLs are now issued each year, many of which obtain
information on people two and three times removed from a suspected terrorist.

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•

Section 802: Definition of Domestic Terrorism. The Patriot Act broadened the definition of
domestic terrorist acts to include any state or federal crime as a predicate offense, including
peaceful civil disobedience.

•

Section 805: Material Support. This provision bars individuals from providing material support
to terrorists, defined as providing any tangible or intangible good, service or advice to a terrorist
or designated group. As amended by the Patriot Act and other laws since September 11, this
section criminalizes a wide array of activities, regardless of whether they actually or intentionally
further terrorist goals or organizations. Federal courts have struck portions of the statute as
unconstitutional and a number of cases have been dismissed or ended in mistrial.

•

Section 6001 of intelligence reform bill: “Lone Wolf ” Surveillance and Search Orders. Since
its inception, FISA has regulated searches and surveillance on US soil for intelligence purposes.
Under FISA, a person would have to belong to a group suspected of terrorism before he or she
could be surveilled.The Intelligence Reform and Terrorism Prevention Act of 2004 added a new
category, allowing someone wholly unaffiliated with a terrorist organization to be targeted for
surveillance. This section is scheduled to expire on December 31, 2009.

RECLAIMING PATRIOTISM

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ENDNOTES

1 The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act (PATRIOT Act) of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001).
2 Boyd v. United States, 116 U.S. 616, 624 (1886).
3 Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 556 (1999).
4 See Boyd v. United States, 116 U.S. 616 (1886).
5 Id. at 625.
6 Id. at 625.
7 John Yoo and Eric Posner, Patriot Act Under Fire, American Enterprise Institute Online, Dec. 1, 2003, available at http://
www.aei.org/publications/pubID.19661,filter./pub_detail.asp.
8 Marcus v. Search Warrant, 367 U.S. 717, 729 (1961).
9 Marron v. United States, 275 U.S. 192, 196 (1927).
10 Stanford v.Texas, 379 U.S. 476, 485 (1965).
11 United States v. United States District Court (Keith), 407 U.S. 297, 313 (1972).
12 Boyd v. United States, 116 U.S. 616, 625 (1886).
13 S. Rep. No. 107-351 (Dec. 2002); H.R. Rep. No. 107-792 (Dec. 2002).
14 Letter from the American Civil Liberties Union to the U.S. House of Representatives (Oct. 23, 2001) (on file with author),
available at http://www.aclu.org/natsec/emergpowers/14402leg20011023.html; Letter from the American Civil Liberties Union
to the U.S. Senate (Oct. 23, 2001) (on file with author), available at http://www.aclu.org/natsec/emergpowers/14401leg20011023.
html.
15 Letter from the American Civil Liberties Union to Senator Dianne Feinstein (April 4, 2005) (on file with author), available
at http://www.aclu.org/safefree/general/17563leg20050404.html.
16 USA PATRIOT Act of 2001: Hearing Before the S. Select Comm. on Intelligence, 109th Cong. 97, 100 (2005) (statement of Alberto
R. Gonzales, Attorney General of the United States and Robert S. Mueller, III, Director, Federal Bureau of Investigation). A later
report by the Department of Justice Inspector General would reveal that between 2003 and 2005 the FBI had self-reported 19
possible legal violations regarding its use of National Security Letters to the President’s Intelligence Oversight Board. Attorney
General Gonzales received at least six reports detailing FBI intelligence violations, including misuse of NSLs, three months prior to
his Senate testimony. To a certain degree AG Gonzales and FBI Director Mueller were truthful in their testimony because as they
well knew, President Bush’s Intelligence Oversight Board did not meet to “substantiate” any of the violations reported until the
Spring of 2007. See Dep’t. Of Justice, Office Of Inspector General, A Review Of The Federal Bureau Of Investigation’s
Use Of National Security Letters 69 (Mar. 2007), available at http://www.usdoj.gov/oig/special/s0703b/final.pdf; John
Solomon, Gonzales was told of FBI violations, Wash. Post, Jul. 10, 2007, at A1, available at http://www.washingtonpost.com/wpdyn/content/article/2007/07/09/AR2007070902065.html; John Solomon, In Intelligence World, a Mute Watchdog, Wash. Post,
Jul. 15, 2007, at A3, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/07/14/AR2007071400862.
html.
17 USA PATRIOT Improvement and Reauthorization Act of 2005 (PIRA), Pub. L. No. 109-177, 120 Stat. 192 (2006).
18 Pub. L. No. 108-458, 118 Stat. 3638 (2004).
19 Electronic surveillance orders in criminal investigations are governed by the Omnibus Crime Control and Safe Streets Act
of 1968. See 18 U.S.C.A. §§2510-2520 (2006).
20 PIRA, supra note 17, at § 119(a).
21 The four NSL authorizing statutes include the Electronic Communications Privacy Act, 18 U.S.C. § 2709 (2000), the Right

34

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to Financial Privacy Act, 12 U.S.C. § 3401 (2000), the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (2000), and the
National Security Act of 1947, 50 U.S.C. § 436(a)(1)(2000).
22 As amended, the NSL statute authorizes the Director of the FBI or his designee (including a Special Agent in Charge
of a Bureau field office) to impose a gag order on any person or entity served with an NSL. See 18 U.S.C. § 2709(c). To
impose such an order, the Director or his designee must “certify” that, absent the non-disclosure obligation, “there may result
a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence
investigation, interference with diplomatic relations, or danger to the life or physical safety of any person.” Id. at § 2709(c)(1).
If the Director of the FBI or his designee so certifies, the recipient of the NSL is prohibited from “disclos[ing] to any person
(other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal
assistance with respect to the request) that the [FBI] has sought or obtained access to information or records under [the NSL
statute].” Id. Gag orders imposed under the NSL statute are imposed by the FBI unilaterally, without prior judicial review.
While the statute requires a “certification” that the gag is necessary, the certification is not examined by anyone outside the
executive branch. The gag provisions permit the recipient of an NSL to petition a court “for an order modifying or setting aside
a nondisclosure requirement.” Id. at § 3511(b)(1). However, in the case of a petition filed “within one year of the request for
records,” the reviewing court may modify or set aside the nondisclosure requirement only if it finds that there is “no reason to
believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or
counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.” Id. at
§ 3511(b)(2). Moreover, if a designated senior government official “certifies that disclosure may endanger the national security
of the United States or interfere with diplomatic relations,” the certification must be “treated as conclusive unless the court finds
that the certification was made in bad faith.” Id.
23 Dep’t Of Justice, Office Of Inspector General, A Review Of The Federal Bureau Of Investigation’s Use Of National
Security Letters (Mar. 2007), available at http://www.usdoj.gov/oig/special/s0703b/final.pdf [hereinafter 2007 NSL Report];
Dep’t Of Justice, Office Of Inspector General, A Review Of The Federal Bureau Of Investigation’s Use Of Section 215
Orders for Business Records (Mar. 2007), available at http://www.usdoj.gov/oig/special/s0703a/final.pdf [hereinafter 2007
Section 215 Report].
24 2007 NSL Report, supra note 23, at 84.
25 2007 NSL Report, supra note 23, at 86-99.
26 Dep’t Of Justice, Office Of Inspector General, A Review Of The FBI’s Use Of National Security Letters: Assessment
of Corrective Actions and Examination of NSL Usage in 2006 (Mar. 2008), available at http://www.usdoj.gov/oig/special/
s0803b/final.pdf [hereinafter 2008 NSL Report]; Dep’t Of Justice, Office Of Inspector General, A Review Of The FBI’s
Use Of Section 215 Orders for Business Records in 2006 (Mar. 2008), available at http://www.usdoj.gov/oig/special/
s0803a/final.pdf [hereinafter 2008 Section 215 Report].
27 2008 NSL Report, supra note 26, at 9.
28 2008 NSL Report, supra note 26, at 127, 129 n.116.
29 2008 NSL Report, supra note 26, at 127.
30 2008 NSL Report, supra note 26, at 127.
31 2008 NSL Report, supra note 26, at 130.
32 See Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y 2004); Doe v. Gonzales, 500 F.Supp. 2d 379 (S.D.N.Y. 2007); Doe v. Gonzales,
386 F. Supp. 2d 66 (D.Conn. 2005); PIRA, Pub. L. No. 109-177, 120 Stat. 195 (2006); USA Patriot Act Additional Reauthorizing
Amendments Act of 2006 (ARAA) Pub. L. No.109-178, 120 Stat. 278 (2006). The ACLU is still litigating the constitutionality
of the gag order provisions in the USA PATRIOT Improvement and Reauthorization Act of 2005. See Press Release, American
Civil Liberties Union, ACLU Asks Appeals Court to Affirm Striking Down Patriot Act ‘National Security Letter’ Provision
(Mar. 14, 2008) (on file with author), available at http://www.aclu.org/safefree/nationalsecurityletters/34480prs20080314.html.
33 2008 NSL Report, supra note 26, at 11, 124.
34 2008 NSL Report, supra note 26, at 127.
35 2008 NSL Report, supra note 26, at 81, 88.
36 Letter from Brian Benczkowski, Principal Deputy Assistant Attorney General, United States Department of Justice, to Nancy

RECLAIMING PATRIOTISM

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Pelosi, Speaker, United States House of Representatives (Apr. 30, 2008) (on file with author), available at http://www.fas.org/
irp/agency/doj/fisa/2007rept.pdf.
37 2008 Section 215 Report, supra note 26, at 68.
38 2008 Section 215 Report, supra note 26, at 72.
39 2008 Section 215 Report, supra note 26, at 73.
40 2008 Section 215 Report, supra note 26, at 67.
41 2008 Section 215 Report, supra note 26, at 72.
42 2008 Section 215 Report, supra note 26, at 72.
43 2008 Section 215 Report, supra note 26, at 71 n.63.
44 2008 Section 215 Report, supra note 26, at 73.
45 2008 Section 215 Report, supra note 26, at 72-73.
46 2008 Section 215 Report, supra note 26, at 43.
47 2008 Section 215 Report, supra note 26, at 45-47.
48 2008 Section 215 Report, supra note 26, at 47.
49 See, Foreign Intelligence Surveillance Act: Closed Hearing Before the H. Permanent Select Comm. on Intelligence, 110th Cong. (Sept. 6,
2007) (Statement of Kenneth Wainstein, Assistant Attorney General, National Security Division, U.S. Dep’t of Justice), available
at http://www.fas.org/irp/congress/2007_hr/090607wainstein.pdf.
50 See Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y 2004); Doe v. Gonzales, 500 F.Supp. 2d 379 (S.D.N.Y. 2007); Doe v. Gonzales,
386 F. Supp. 2d 66 (D.Conn. 2005). The ACLU is still litigating the constitutionality of the gag order provisions in the USA
PATRIOT Improvement and Reauthorization Act of 2005. See, Press Release, American Civil Liberties Union, ACLU Asks
Appeals Court to Affirm Striking Down Patriot Act ‘National Security Letter’ Provision (Mar. 14, 2008) (on file with author),
available at http://www.aclu.org/safefree/nationalsecurityletters/34480prs20080314.html.
51 PIRA, supra note 17.
52 Doe v. Gonzales, 500 F.Supp.2d 379, 25 A.L.R. Fed. 2d 775 (S.D.N.Y.  2007). 
53 Doe v. Mukasey, No. 07-4943-cv (2nd Cir. Dec. 15, 2008), available at http://www.aclu.org/pdfs/safefree/doevmukasey_
decision.pdf.
54 Library Connection v. Gonzales, 386 F.Supp.2d 66, 75 (D.Conn. 2005).
55 See Joint Administrative Motion to Unseal Case, Internet Archive v. Mukasey, No. 07-6346-CW (N.D. Cal May 1, 2008),
available at https://www.aclu.org/pdfs/safefree/internetarchive_motiontounseal_20080501.pdf.
56 Id. at 3.
57 National Security Act of 1947, 50 U.S.C. §436.
58 Right to Financial Privacy Act, 12 U.S.C. §4314.
59 Fair Credit Reporting Act, 15 U.S.C. §1681v.
60 See National Security Act of 1947, 50 U.S.C. §436; Right to Financial Privacy Act, 12 U.S.C. §4314; Fair Credit Reporting
Act, 15 U.S.C. §1681v; and PIRA, Pub. L. No. 109-177, §116, 120 Stat. 192 (2006), codified at 18 U.S.C. §2709.
61 Pub. L. No. 104-132, 110 Stat. 1214 (1996).
62 § 2339A. Providing material support to terrorists
(a) Offense. – Whoever provides material support or resources or conceals or disguises the nature, location, source, or
ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying
out, a violation of section 32, 37, 81, 175, 229, 351, 831, 842(m) or (n), 844(f) or (i), 930(c), 956, 1114, 1116, 1203, 1361,
1362, 1363, 1366, 1751, 1992, 1993, 2155, 2156, 2280, 2281, 2332, 2332a, 2332b, 2332f, or 2340A of this title, section 236
of the Atomic Energy Act of 1954 (42 U.S.C. 2284), or section 46502 or 60123(b) of title 49, or in preparation for, or in

36

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carrying out, the concealment of an escape from the commission of any such violation, or attempts or conspires to do such
an act, shall be fined under this title, imprisoned not more than 15 years, or both, and, if the death of any person results, shall
be imprisoned for any term of years or for life.
(b) Definition. – In this section, the term “material support or resources” means currency or monetary instruments or
financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or
identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and
other physical assets, except medicine or religious materials.
§ 2339B. Providing material support or resources to designated foreign terrorist organizations
(a) Prohibited activities. –
(1) Unlawful conduct. – Whoever, within the United States or subject to the jurisdiction of the United States,
knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so,
shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results,
shall be imprisoned for any term of years or for life. . . .
(g) Definitions. – As used in this section . . .
(4) the term “material support or resources” has the same meaning as in section 2339A; . . .
(6) the term “terrorist organization” means an organization designated as a terrorist organization under
section 219 of the Immigration and Nationality Act.
63 66 Stat. 163, § 219, as amended, 8 U.S.C.A. §§ 1101 et seq. As noted, 18 U.S.C. §§ 2339A and 2339B are not the only statutes
pertaining to material support. In addition, the criminal liability provisions of the International Emergency Economic Powers
Act (IEEPA), permit the designation of “specially designated terrorists” and “specially designated global terrorists” and give the
President authority to regulate, prohibit or prevent any form of economic transaction that provides services to benefit terrorists.
50 U.S.C.A. § 1705 (2007).
64 PATRIOT Act, supra note 1, at §805(a)(2); 18 U.S.C. §§ 2339A(b) and 2339B(g)(4).
65 IRTPA, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
66 See Humanitarian Law Project v. Gonzales, 380 F.Supp.2d, 1134, 1142-48, (C.D.Cal 2005).
67 See Brief for American Civil Liberties Union as Amicus Curiae Supporting Plaintiffs-Appellees, HLP v. Gonzales, No. 0556753, 05-56846 (9th Cir. filed May 19, 2006), available at http://www.aclu.org/images/general/asset_upload_file394_25628.
pdf.
68 Implementation of the USA Patriot Act: Prohibition of Material Support Under Sections 805 of the USA Patriot Act and 6603
of the Intelligence Reform and Terrorism Prevention Act of 2004: Hearing Before the H. Subcomm. on Crime, Terrorism and Homeland
Security of the H. Comm. on the Judiciary, 109th Cong. 23-28 (2005) (Written statement of Ahilan T. Arulanantham, Staff Attorney,
ACLU of Southern California), available at http://www.aclu.org/safefree/general/17536leg20050510.html; See also, Ahilan
T. Arulanantham, A Hungry Child Knows No Politics: A Proposal for Reform of the Laws Governing Humanitarian Relief
and ‘Material Support’ of Terrorism, American Constitution Society (June 2008), available at http://www.acslaw.org/files/
Arulanantham%20Issue%20Brief.pdf.
69 Implementation of the USA Patriot Act: Prohibition of Material Support Under Sections 805 of the USA Patriot Act and 6603 of the
Intelligence Reform and Terrorism Prevention Act of 2004: Hearing Before the H. Subcomm. on Crime, Terrorism and Homeland Security
of the H. Comm. on the Judiciary, 109th Cong. 26 (2005) (Written statement of Ahilan T. Arulanantham, Staff Attorney, ACLU of
Southern California).,
70 PIRA, supra note 17, at §104.
71 Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998).
72 Maureen O’Hagan, A Terrorism Case that went Awry, Seattle Times, Nov. 22, 2004, available at http://seattletimes.nwsource.
com/html/localnews/2002097570_sami22m.html.
73 See Scales v. United States, 367 U.S. 203, 224-25 (1961).
74 United States v. Al-Arian, 308 F.Supp. 2d 1322, 1337 (M.D.Fl 2004).
75 Robert M. Chesney, Federal Prosecution of Terrorism-Related Offenses: Conviction and Sentencing Data of the “Soft-Sentence” and
“Data-Reliability” Critiques, 11 Lewis & Clark L. Rev. 837 (2007).

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76 Bureau of Justice Statistics, Compendium of Federal Justice Statistics, 2001, U.S. Department of Justice Office
of Justice Programs (Nov. 2003), Bureau of Justice Statistics, Compendium of Federal Justice Statistics, 2002, U.S.
Department of Justice Office of Justice Programs (Sept. 2004), Bureau of Justice Statistics, Compendium of Federal
Justice Statistics, 2003, U.S. Department of Justice Office of Justice Programs (undated), Bureau of Justice Statistics,
Compendium of Federal Justice Statistics, 2004, U.S. Department of Justice Office of Justice Programs (Dec. 2006),
http://fjsrc.urban.org/fjs.cfm?p=pubs_ann_rpt&t=h&a=compendium.
77 Chesney, supra note 75, at 885.
78 Chesney, supra note 75, at 886.
79 The ACLU filed an amicus curiae brief on behalf of Plaintiffs. See Brief for American Civil Liberties Union as Amicus Curiae
Supporting Plaintiffs-Appellees, Humanitarian Law Project v. Gonzales, No. 05-56753, 05-56846 (9th Cir. filed May 19, 2006),
available at http://www.aclu.org/images/general/asset_upload_file394_25628.pdf.
80 Humanitarian Law Project v. Mukasey, 509 F.3d 1122 (9th Cir. 2007).
81 PATRIOT Act, supra note 1, at §411, codified at 8 U.S.C. §1182(a)(3)(B)(i)(VI).
82 PATRIOT Act, supra note 1, at §411, codified at 8 U.S.C. §1182(a)(3)(B)(i)(VI).
83 American Academy of Religion v. Chertoff, No. 06 CV 588(PAC), 2007 WL 4527504 (S.D.N.Y.).
84 See American Academy of Religion v. Chertoff, 463 F.Supp.2d 400 (S.D.N.Y. Jun. 23, 2006); American Academy of Religion
v. Chertoff, No. 06 CV 588(PAC), 2007 WL 4527504 (S.D.N.Y.).
85 See REAL ID Act, Pub. L. No. 109-13, Div. B, 119 Stat. 231 (May 11, 2005).
86 PATRIOT Act, supra note 1, at §218.
87 PATRIOT Act, supra note 1, at §218.
88 Mayfield v. U.S., 504 F.Supp.2d 1023 (D.Or. Sep 26, 2007).  The ACLU filed an amicus curiae brief on behalf of Plaintiffs. See
brief for American Civil Liberties Union as Amicus Curiae Supporting Plaintiffs, Mayfield v. U.S., No. 07-35865 (9th Cir. filed
March 14, 2008), available at http://www.aclu.org/images/asset_upload_file16_34495.pdf.
89 Eric Lichtblau, Ashcroft Mocks Librarians and Others Who Oppose Parts of Counterterrorism Law, N.Y. TIMES, Sept. 16, 2003,
available at http://query.nytimes.com/gst/fullpage.html?res=9D00E4D8163AF935A2575AC0A9659C8B63.

38

RECLAIMING PATRIOTISM

JA 1411

Case 1:17-cv-02969-TDC Document 33-10 Filed 10/14/17 Page 1 of 10

EXHIBIT 9

JA 1412

Case 1:17-cv-02969-TDC Document 33-10 Filed 10/14/17 Page 2 of 10
U.S. Embassy Baghdad: Iraqi Young Leaders Exchange Program 

Guidelines for Completing the DS 160 Non Immigrant Visa Application 

General Information 
•
•
•

•

The DS‐160 is an online form that must be completed prior to scheduling a visa interview. 
The application must be completed in English. 
A page‐by‐page summary of the DS‐160 questions is provided below. Before you fill out the online form, make 
sure you have all the necessary information needed to complete the form. For IYLEP visa applications, there is 
specific information that needs to be included in the DS‐160. This information is provided below (in BLUE text) 
next to the corresponding fields.  Please follow these directions when completing your DS‐160.   
Complete all fields.  Except for those marked “optional”, all fields are required information.  If there is a field 
that does not apply to you, you may check the box “Does Not Apply” when it is an option. You will not be able to 
move to the next page until you have completed the required fields. 

Record Your Application ID! 
If there is no activity for 20 minutes or more in the process of completing the online application, your session will expire. 
You will have the ability to retrieve your application if you encounter a time‐out, system error, or if you wish to 
complete your application at a later time with your Application ID.  
IMPORTANT! Record the Application ID displayed on the top right‐hand corner (circled in yellow below) as soon as 
you begin the application process!  You must have the Application ID and the answer to the security question that you 
select on the first page to retrieve your application. It is very common for applicants to encounter at least one time‐out 
or system error while completing the DS‐160. 

Your application will be automatically saved each time you click the “Next” button. You will be able to retrieve your 
unsubmitted application for the next 30 days. To complete your application after 30 days, you can permanently save the 
application to a disk or to your hard drive. Click the "Save" button at the bottom of the last page you have completed 
and follow the instructions to save the application data to a file. 
When you have finished and submitted your DS 160 form, save and print the confirmation page.  You will need to submit 
it with the rest of the documents required for visa interview.  

Getting Started 

Access the DS‐160 at https://ceac.state.gov/genniv/ 
• Step 1. Click “Start Application”  
• Location where you will be submitting your application: Select BAGHDAD, IRAQ 
• Click the button below to test your photo: This is optional—you can move directly to Step 2 
• Step 2. Select “Start a New Application”  
Page 1 of 9 

JA 1413

Case 1:17-cv-02969-TDC Document 33-10 Filed 10/14/17 Page 3 of 10

1. Personal Information  

Note: Personal Information MUST match passport! 

Personal Information Part 1 
Surnames 
Given names 
Full Name in Native Alphabet 

Include all names listed in passport 
Include all names listed in passport 
Type your name in Arabic, if you are unable to type in 
your name in Arabic, check the “Does Not Apply” box. 

Have you ever used other names (i.e., maiden, 
religious, professional, alias, etc.)? 
     If YES, provide other names used 
Sex 
Marital Status 
Date of birth 
City of Birth 
State/ Province of Birth 
Country of Birth 

Personal Information Part 2 
Nationality 
Do you hold or have you held a nationality other than 
the one you have indicated above?  
National Identification number:  
U.S. Social Security Number  
U.S. Taxpayer ID  

Enter your Iraqi Jensiya number. If you do not have a 
Jensiya number, check “Does Not Apply.”   
Check “Does Not Apply” 
Check “Does Not Apply” 

Address and Phone Information 
Street Address  
City  
State/Province  
Postal Zone/ZIP Code  
Country 
Is your Mailing Address the same as your Home 
Address? 
Home Phone Number  
Work Phone Number  
Work Fax Number  
Mobile Phone Number  
Email Address  

Page 2 of 9 

JA 1414

Case 1:17-cv-02969-TDC Document 33-10 Filed 10/14/17 Page 4 of 10

2. Passport and Travel Information 

Passport Information 
Passport Number  
Passport Book Number  
Country/Authority that Issued Passport 
Where Was Passport Issued? 
o City  
o State/Province *If shown on passport 
o Country  
Issuance Date  
Expiration Date  
Have you ever lost a passport or had one stolen?  

Enter the passport number as it appears in your 
passport 
Check “Does Not Apply” 

Travel Information 
Are you principal applicant?  
Purpose of Trip to U.S.  
Have you made specific travel plans?  
Intended date of Arrival  

Select YES 
Select: Exchange Visa ( J) 
Select NO 
Enter the date three days before the start of the 
program   
Intended length of stay in U.S.  

Address where you will stay in the U.S.  

o Street Address (line 1)  
Enter the address reflecting the site of activity 
o Street Address (line 2)  

o City:  

o State:  

o Zip Code:  

Person/Entity Paying for Your Trip 
Select: “COMPANY/ORGANIZATION” 
o Name of Company or Organization Paying  Enter: U.S. Embassy Baghdad, Iraq 
for Trip  
o Telephone Number  
Enter: 1‐240‐553‐0581 
o Relationship to You  
Select “Other” 
Is the Address of the party paying for you trip the 
Select NO 
same as your Home or Mailing Address?  
Address of Company or Organization Paying 

Street Address (line 1):  
Enter: U.S. Embassy Baghdad 
Street Address (Line 2):  
Enter: Al‐Kindi Street, International Zone 
City:  
Enter: Baghdad 
State/ Province:  

Postal Zone/Zipcode:  
Enter: 09870 
Country 
Select: Iraq 

Page 3 of 9 

JA 1415

Case 1:17-cv-02969-TDC Document 33-10 Filed 10/14/17 Page 5 of 10

Travel Companions 
Are there other persons traveling with you? 

Select NO 

Previous U.S. Travel 

Have you ever been in the U.S.?  

If YES, answer questions A‐B.  

If NO, skip questions A‐B. 
A. Provide date of arrival & length of stay for last five visits 
B. Do you or did you ever hold a U.S. Driver’s License? (provide license # and state of issue if 
applicable) 
Have you ever been issued a U.S. Visa? 

If YES, answer questions C‐H.  

If NO, skip questions C‐H. 
C. Enter date last visa was issued and visa number (if known) 
D. Are you applying for the same type of visa?  
E. Are you applying in the same country where the visa above was issued and is this country 
your principal country of residence? 
F. Have you been ten‐printed (provided fingerprints for all ten of your fingers)?  
G. Has your U.S. Visa ever been lost or stolen?  
H. Has your U.S. Visa ever been cancelled or revoked?  
Have you ever been refused a U.S. Visa, been refused admission to the U.S., or withdrawn your             
application for admission at the point of entry? 
If YES, provide explanation 

U.S. Point of Contact Information 
Contact Person or Organization in the United States 
Surnames:   
Given Names:   
Organization Name  
Relationship to you  
Address/Phone Number of Point of Contact: 
Street Address (line 1):  
Street Address (Line 2):  
City:  
State/ Province:  
Postal Zone/Zipcode:  
Email Address:  

Enter: Khalil 
Enter: Hiba 
Enter: World Learning 
Choose “OTHER” 

Enter: World Learning  
Enter: 1015 15th Street, NW , 7th floor 
Enter: Washington 
Select: District of Columbia 
Enter: 20005 
check “Does Not Apply” 

3. Family Information 

Family Information: Relatives 
Father’s Full Name and Date of Birth:  
Surnames  
Given Names  

Enter full information even if father is deceased 

Page 4 of 9 

JA 1416

Case 1:17-cv-02969-TDC Document 33-10 Filed 10/14/17 Page 6 of 10
Date of Birth 
Is your father in the U.S.?  
Mother’s Full Name and Date of Birth:  
Surnames  
Given Names 
Date of Birth 
Is your mother in the U.S.?  
Do you have any immediate relatives (fiancé/fiancée, 
spouse, children, or siblings) not including parents, in 
the United States?  
If YES, provide name, relationship, city in U.S. 
for each relative 
Do you have any other relatives in the United States?  

Enter full information even if mother is deceased 

Family Information: Spouse 
Spouse’s Full Name 
Spouse’s Surnames 
Spouse’s Given Names 
Spouse’s Date of Birth  
Spouse’s Nationality  
Spouse’s Place of Birth:  
City 
Country  
Spouse’s Address  

Enter current spouse information. If divorced, enter 
previous spouse information. 

Select: “Same as Applicant’s Home Address” 

4. Work/Education/Training Information  

Present Work/Education/Training Information    
Primary Occupation  
Provide the following information concerning your current 
employment or education. 
Present Employer or School Name  

Present Employer or School Address 

Street Address 

City 

State/ Province  

Postal Zone/ Zip Code  

Country 

Monthly salary in local currency (if employed):  Enter your salary before deductions or an estimate of your 
average earnings for a month. If you are a business owner, 
you should enter an average amount of net income you 
receive from the business after expenses. If you receive a 
pension, enter the amount of the pension. 
Briefly describe your duties 

Page 5 of 9 

JA 1417

Case 1:17-cv-02969-TDC Document 33-10 Filed 10/14/17 Page 7 of 10

Previous Work/Education/Training Information 
Were you previously employed?  

If YES, enter Employer/ Employment 
Information 
o Employer Name 
o Employer Street Address 
o City 
o State/ Province  
o Postal Zone/ Zip Code  
o Country 
o Telephone Number 
o Job Title 
o Supervisor’s Surname 
o Supervisor’s Given Names 
o Employment Date From  
o Employment Date To  
o Briefly describe your duties:  
Have you attended any educational institutions other 
than elementary schools? 
If YES, provide the following information on 
all educational institutions you have 
attended, not including elementary schools. 
o Name of Institution 
o Street Address 
o City 
o State/ Province  
o Postal Zone/ Zip Code  
o Country 
o Course of Study 
o Date of Attendance From:  
o Date of Attendance To:  

Provide employment information for the last five 
years, if applicable. Add more entries until a span of 5 
years has been recorded 

MUST include month and year 
MUST include month and year 
(Just a sentence or two) 

Additional Work/Education/Training Information 
Do you belong to a clan or tribe? 
If YES, provide clan or tribe name 
Have you traveled to any countries within the last five years? 
If YES, provide a list of countries visited 
Have you belonged to, contributed to, or worked for any 
professional, social, or charitable organization?  
If YES, provide a list of organizations 
Do you have any specialized skills or training, such as firearms, 
explosives, nuclear, biological, or chemical experience? 
Have you ever served in the military?  

Include any travel outside of your home 
country, including travel to the U.S. 

Page 6 of 9 

JA 1418

Case 1:17-cv-02969-TDC Document 33-10 Filed 10/14/17 Page 8 of 10
If YES, provide the following information: 
o Name of country (where you performed military 
service) 
o Branch of service 
o Rank/ Position 
o Military Specialty 
o Date of Service From 
o Date of Service To 
Have you ever served in, been a member of, or been involved with 
a paramilitary unit, vigilante unit, rebel group, guerrilla group, or 
insurgent organization? 
If YES, Explain 

5. Security and Background 

Medical and Health Information 

Do you have a communicable disease of public health significance such as tuberculosis (TB)? 
If YES, Explain 

Do you have a mental or physical disorder that poses or is likely to pose a threat to the safety or welfare of 
yourself or others? 
If YES, Explain 

Are you or have you ever been a drug abuser or addict? 
If YES, Explain 

Criminal Information 
Have you ever been arrested or convicted for any 
offense or crime, even though subject of a pardon, 
amnesty, or other similar action?  
If YES, Explain 
Have you ever violated, or engaged in a conspiracy to 
violate, any law relating to controlled substances? 
If YES, Explain 
Are you coming to the United States to engage in 
prostitution or unlawful commercialized vice or have 
you been engaged in prostitution or procuring 
prostitutes within the past 10 years? 
If YES, Explain 
Have you ever been involved in, or do you seek to 
engage in, money laundering? 
If YES, Explain 

Include all arrests or detentions, including those at 
the border and by Customs and Border Patrol. 

Security Information 

Do you seek to engage in espionage, sabotage, export control violations. Or any other illegal activity while in 
the United States? 
Do you seek to engage in terrorist activities while in the U.S. or have you ever engaged in terrorist activities? 
Page 7 of 9 

JA 1419

Case 1:17-cv-02969-TDC Document 33-10 Filed 10/14/17 Page 9 of 10
Have you ever or do you intend to provide financial assistance or other support to terrorists or terrorist 
organizations? 
Are you a member or representative of a terrorist organization? 
Have you ever ordered, incited, committed, assisted, or otherwise participated in genocide? 
Have you ever committed, ordered, incited, assisted or otherwise participated in torture? 
Have you committed, ordered, incited, assisted, or otherwise participated in extrajudicial killings, political 
killings, or other acts of violence? 
Have you, while serving as a government official, been responsible for or directly carried out, at any time, 
particularly severe violations of religious freedom? 

Immigration Law Violations 

Have you ever sought to obtain or assist others to obtain a visa, entry into the U.S., or any other United States 
Immigration benefit by fraud or willful misrepresentation or other unlawful means? 

Miscellaneous Information 

Have you ever withheld custody of a U.S. citizen child outside the U.S. from a person granted legal custody by 
a U.S. court? 
Have you voted in the United States in violation of any law or regulation? 
Have you ever renounced United States citizenship for the purpose of avoiding taxation? 

Additional Point of Contact Information    
List at least two contacts (One Embassy contact, and one Iraqi contact) who can verify the information that 
you have provided on this application. For the Iraqi contact, do not list immediate family members or other 
relatives.  
Contact #1 
Enter Cultural Affairs Youth Exchanges Specialist for first contact 
information 
o Surnames  
Enter: Chiriac 
o Given names 
Enter: Natalia 
o Street Address  
Enter: U.S. Embassy Baghdad, Al‐Kindi Street, International Zone 
o City  
Enter: Baghdad 
o State/Province 
Leave it blank 
o Zip  
09870 
o Country 
Iraq 
o Telephone Number 
0770 443 3171 
[e-mail]
o Email Address  
Contact #2 
Enter Iraqi contact for second contact information (do not list 
immediate family members or other relatives) 
o Surnames  

o Given names 

o Street Address  
Postal office box numbers are unacceptable. MUST at least provide 
city, country, phone 
o City  

o State/Province 

o Zip  

o Country 

Page 8 of 9 

JA 1420

Case 1:17-cv-02969-TDC Document 33-10 Filed 10/14/17 Page 10 of 10
o
o

Telephone Number 
Email Address  

6. SEVIS Information 

SEVIS 
Enter SEVIS ID 
Do you intend to study in the U.S.? 

On DS 2019 form or given to you in an e‐mail.  
Select NO 

Note: Provide Program Code when asked by the application.  You will be provided with the Program Code by e‐mail. 

7. Upload Photo 
If you have a photo, go ahead and follow upload instructions; 
If you don’t have a digital photo that meets the requirements, you can bypass this step.  You will still need to browse 
and submit an image (you can use any .jpg file), even though it is not the photo you will use. You will receive an error 
message, and that is okay.  An acceptable photo will be taken at the time of the visa interview by Consular Section staff.  

8. Verify Information 
Make sure you verify all information and edit as necessary.  In order for changes made from the review page to save, use 
the buttons at the bottom of each page to navigate, not the browser's back/forward buttons. 

9. Sign and Submit 

Sign and Submit 
Did anyone assist you in filling out this application?   
If YES, provide the following information on 
the preparer: 
o Surnames 
o Given names 
o Organization Names 
o Address 
o Street Address  
o City  
o State/Province 
o Zip  
o Country 
o Relationship to you 
E‐Signature 
Click Sign and Submit Application 

Enter your passport number 
Enter the code you see on the screen 

9. Print Confirmation Page 
1. Print confirmation page and bring to interview. Bring only the confirmation page, not the whole document! 
2. Send the electronic version of the confirmation page to your local coordinator.   
Page 9 of 9 

JA 1421

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 1 of 55

EXHIBIT 10

JA 1422

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 2 of 55

DS-160
NONIMMIGRANT
VISA APPLICATION
FORM
U.S. EMBASSY KINGSTON, JAMAICA
A COMPLETE STEP-BY-STEP INSTRUCTIONAL
GUIDE

JA 1423

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 3 of 55

INTRODUCTION

All nonimmigrant visa applicants must complete the DS-160
Electronic Visa Application Form online.
The information that you submit can only be viewed by you and the
U.S. Embassy’s consular staff.
You must answer every question truthfully. Errors or omissions
could lead to the denial of your visa application.

This guide will help you complete the DS-160 form. Some
applicants may be required to answer additional questions not
presented in this guide because of their purpose of travel or other
personal circumstances.

JA 1424

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 4 of 55

BEFORE YOU BEGIN

Before you begin completing the DS-160, gather the following items:






Passport and planned itinerary;
Employment history;
Digital photograph;
Contact information;
Travel history.

Make sure your photograph meets the following requirements:






Less than six months old
2 inches by 2 inches (5 by 5 cm)
Plain, light background
Full-face view, with the applicant facing the camera directly
For more detailed guidelines, visit http://travel.state.gov/visa/guide/guide.

JA 1425

Case
GETTING STARTED 1:17-cv-02969-TDC

Document 33-11 Filed 10/14/17 Page 5 of 55

Access the DS-160 form at https://ceac/state/gov/genniv/
Read the instructions carefully and select the country in which you are
applying.
The form will take approximately 45 minutes to complete. It will time
out after 20 minutes of no activity. Do not wait until you have
completed the entire form to save it.
If you do not save your data, you will have to restart the process if the
form times out or if you experience problems with your Internet
connection.

JA 1426

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 6 of 55

After entering your location, select “Option A” if you are starting a new
online application, “Option B” to upload an application that was saved
previously or “Option C” to retrieve your saved application.

JA 1427

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 7 of 55

Next, you will see the screen to the
right. Answer the security question,
then print and save this sheet. You
will need it if you have to retrieve
your DS-160 form at a later date.
Then, click “Continue.”

JA 1428

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 8 of 55

If you are uploading a previously saved application, locate the file (.dot
format) by clicking “Browse” and selecting the previously saved
application file. Next, answer the security questions to validate that the
correct file has been selected, then click ‘Upload Data’. Then, click the
'Next' button at the bottom of each page until you reach the last
completed page. Then, continue the application process.

JA 1429

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 9 of 55

At this time, you may test the upload of your digital photo.
If you choose the option to review the photo standards guide, you will exit
the DS-160 and will have to begin the process again after reviewing the
photo guidelines.

JA 1430

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 10 of 55

Entering Personal Information:
Enter your full name (first, middle and last) in English, exactly as it
appears in your passport.

You will also be asked to enter your full name in your native alphabet.
Do not enter “Nee” and your maiden name in the surname field, even if
it is in your passport.

JA 1431

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 11 of 55

Answer “Yes” if you have used other names in your lifetime, such as a
maiden name, religious name, professional name, etc. Also include
variations in the spelling of your name here. Please be sure that ALL prior
names are included. Failure to do so may delay the processing of your
application.

Indicate your sex and marital status.

JA 1432

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 12 of 55

Enter your date and place of birth. If the day or month is unknown, enter
the information as shown in your passport.

JA 1433

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 13 of 55

Fill in nationality and national identification data fields. Click “Does Not
Apply” if you do not have a national identification number, U.S. Social
Security Number, or U.S. Taxpayer ID Number.

JA 1434

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 14 of 55

To avoid losing data, save your application after completing each section
of the DS-160. Click the “Save” button on the red toolbar at the bottom of
the screen, then select either “Save Application to File” or “Continue
Application” on the Save Confirmation page. If you choose “Save
Application to File,” you will need to save your application to your
computer and/or media storage device.

JA 1435

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 15 of 55

JA 1436

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 16 of 55

Address and Phone Information:
Enter your current home address.
The DS-160 does not accept (/) as a valid character. For addresses that
contain (/), please use (-) instead. Example: 191/2 Spanish Town Road
should be written as 191-2 Spanish Town Road.

JA 1437

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 17 of 55

Answer “Yes” if your “Home Address” is the same as your “Mailing Address.”
Your mailing address should be the address to which your passport will be
sent if you are granted a visa.

Provide your home, work, fax and mobile/cell phone numbers, as
applicable. If you leave a phone number blank, check “Does Not Apply.”

JA 1438

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 18 of 55

Enter your email address. It is important that you provide an email address
in case we must contact you before your interview. If you do not have an
email address, click “Does Not Apply.”

JA 1439

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 19 of 55

Passport Information:
Enter your passport number and
passport book number, if applicable.
Note: The passport book number is
commonly called the inventory
control number. You may or may not
have a passport book number on
your passport. If your passport does
not have a passport book number,
click “Does Not Apply.”

Enter the Country/Authority that
issued your passport and the city,
state/province, and country in which
your passport was issued.

JA 1440

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 20 of 55

Enter your passport’s issuance and expiration dates. In most cases your
passport must be valid for at least six months beyond your visa application
date and beyond your arrival date in the U.S.
Answer “Yes” if you have ever had a lost or stolen passport.

JA 1441

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 21 of 55

Principal Applicant Question:
Answer “No” if someone else is completing the DS-160 on your behalf or if
you are accompanying your spouse or parent who is going to work, study or
get married in the U.S. All other applicants should answer “Yes.”

JA 1442

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 22 of 55

Purpose of Travel:
Select your purpose of travel to the U.S. from the dropdown menu. If you
do not see the appropriate purpose of travel, select “Other” for more
options. Remember: If you are applying for an employment authorization
visa, do not choose B1 or B1/B2.
If you are applying for two different types of visas (for example, C1/D and
B1/B2) you must complete two separate DS-160 applications.

JA 1443

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 23 of 55

Enter your intended date of arrival and length of stay in the U.S. If you are
unsure of your exact travel plans, provide your best estimate.

Enter the address where you will stay while in the U.S. If you are staying at a
hotel, please include the hotel’s name.

JA 1444

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 24 of 55

Enter information about the person or organization paying for your
travel to the U.S.

If you are not paying for your trip, you will be asked to enter more
information about your sponsor:

JA 1445

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 25 of 55

Are there other persons traveling with you?
Answer “Yes” if you are traveling with family, a tour group, performing group,
or athletic team. If you answer “Yes”, you will be asked whether you are part
of a group or organization. If so, enter the group name. If you are not part of a
group, list your companions’ names and relationships to you.

If you are traveling with
more than one individual,
click “Add Another” to
add additional
JA 1446
companions.

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 26 of 55

Previous U.S. Travel Information
Honestly answer the following three Yes or No questions:

JA 1447

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 27 of 55

If you have been in the U.S. before, you will be asked to provide
information about your last five U.S. visits and information about
whether you have had a U.S. driver’s license. Answer these questions
as accurately as possible. If you do not remember your exact travel
date, you may provide an estimate.

JA 1448

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 28 of 55

Contact in the United States:
Enter the name and contact information for an individual in the U.S who
knows you and can verify your identity. If you do not personally know
anyone in the U.S., you may enter the name of your hotel or the name of the
company for which you will work in the U.S.

JA 1449

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 29 of 55

Family Information:
Enter your parents’ full names and dates of birth. If you do not know this
information, check “Do Not Know.” Also answer the Yes/No question about
whether your parents are in the U.S.

JA 1450

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 30 of 55

Do you have immediate relatives in the United States?
Answer yes if you have a fiancé(e), spouse, child, or sibling in the United
States. If you answer Yes, enter the additional details, as requested. If you
have multiple immediate relatives in the U.S., click “Add Another” to enter
additional information.

Click “Add Another” to
include details if you
have more than one
immediate family
member in the U.S.

JA 1451

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 31 of 55

If applicable, enter your current husband/wife’s full name, including
maiden name for wife. If you are divorced, please also enter your previous
spouse’s information.

D

JA 1452

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 32 of 55

Work, Education and Training Background:
Select your primary occupation field from the drop-down list.

JA 1453

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 33 of 55

Provide your employer’s address and additional employment details, as
required.

JA 1454

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 34 of 55

Answer the Yes/No question about previous employment. If you were
previously employed, provide your employment information for the last 5
years. Click “Add Another” to enter additional employment history.

JA 1455

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 35 of 55

Answer the Yes/No question about attending educational institutions other
than elementary schools (such as high schools, universities, graduate
schools, technical schools, etc.). Provide the requested information about
schools that you attended.
For middle school and high school courses of studies, please indicate
“academic” or “vocational.” For all other educational levels, provide your
major or concentration.

JA 1456

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 36 of 55

Answer the remaining Yes/No questions about work, education and
training. Please provide complete and accurate information if you are asked
to provide an explanation.

JA 1457

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 37 of 55

If you indicate that you have traveled abroad in the past five years, you
will be asked to list the countries you visited. Be sure to enter all
countries that you have visited in the last five years, not only your
most recent trip.

JA 1458

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 38 of 55

Security and Background Information:
Answer “Yes” or “No” to the health questions. Provide complete, accurate
and honest explanations in the box(es) provided for any question(s) to
which you respond “Yes.”

JA 1459

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 39 of 55

Answer “Yes” or “No” to the questions about your criminal history. Provide
complete, accurate and honest explanations in the box(es) provided for any
question(s) to which you respond “Yes.”

JA 1460

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 40 of 55

Answer “Yes” or “No” to the security questions. Please provide complete,
accurate and honest explanations in the box(es) provided for any
question(s) to which you respond “Yes.”

JA 1461

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 41 of 55

Answer “Yes” or “No” to the immigration violation question. Then, click
the “Next" button at the bottom of the screen and answer "Yes" or "No" to
the miscellaneous security questions. Please provide complete, accurate
and honest explanations in the box(es) provided for any question(s) to
which you respond “Yes.”

JA 1462

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 42 of 55

Questions for Students and
Exchange Visitors:
If you are applying for a Student or
Exchange Visitor visa (F, M, or J), you
will be asked to provide at least two
contacts in your country of residence
who can verify the information in
your DS-160. Please do not list
immediate family members or other
relatives.

JA 1463

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 43 of 55

If you are applying for a Student or
Exchange Visitor visa, please
provide your SEVIS number.

If you are applying for a Student or
Exchange Visitor visa, you will be
asked to provide additional
information about the institution
where you intend to study,
including name, address, course of
study, etc.
JA 1464

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 44 of 55

Uploading Photo:
It is now time to upload your photo. Click the "Upload Your Photo" button
to access the DS-160 photo submission system.

Click “Browse” to locate your photo file.

JA 1465

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 45 of 55

After you have selected the image (.JPG file type only), click
"Upload Selected Photo”.

If the system verifies the photo is acceptable, you will return
to the “Confirm Photo” screen in order to continue the
application process.

JA 1466

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 46 of 55

If your photo does not meet the requirements, you will see an error
message. Click “Continue Without a Photo” to continue the application.
Additional instructions will be provided when you return to the visa
application.

JA 1467

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 47 of 55

If your photo did not meet the requirements, click "Choose a Different
Photo" to upload another image OR click "Next" to move to the "Review"
portion of the DS-160. If you choose to continue without a photo, you
MUST bring a photo that meets the standard photo guidelines to your visa
interview appointment.

PHOTO INFORMATION FOR
ALL APPLICANTS:
All applicants, even those who
were successful in uploading
digital photos, are asked to bring
a photo that meets the standard
photo guidelines to the Embassy
on the interview date, in the
event there is an issue with the
uploaded photo.

JA 1468

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 48 of 55

Review Your Information:
You will now have a chance to
review and edit all the information
you have entered in the DS-160.
Review all your responses
carefully. You cannot make
changes after submitting your
application.
To edit your responses, click the
“Edit Information” link in the
appropriate section.
Remember: You are responsible
for ALL information in your DS160.

JA 1469

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 49 of 55

Sign and Submit Your Application:
Read the e-Signature statement carefully before dating, electronically
signing, and submitting your DS-160. Enter your passport number and the
code, then click “Sign and Submit Application”.

By clicking "Sign and Submit Application”, you certify that all
information in your DS-160 is complete and true.

JA 1470

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 50 of 55

Print Your Confirmation Page:
You MUST print the confirmation page with a clear, legible barcode. Bring
the printed confirmation page to your visa interview, along with your
passport and any other required documents. You may print a copy of the
entire, completed DS-160 for your records, but you do not have to bring it to
your interview.
Whether your photo was uploaded or not, you MUST bring a physical
photo of yourself that meets the standard photo guidelines to your visa
interview. We cannot accept digital photos on the day of your interview.

JA 1471

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 51 of 55

Test, Test

T

Test

Tes
Test
t

Test

NOTE: Your
confirmation
page will look
like this if the
photo is
uploaded.

JA 1472

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 52 of 55

NOTE: Your
confirmation
page will look
like this if you
were not able
to upload a
photo.

Test, Test
Test,
Test

Test
Test

JA 1473

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 53 of 55

Family and Group Option:
On the “Thank You” page you will see an option to create a family or group
application.
When you select this option, certain information from your application will
automatically be imported to and displayed on a new application.

You will still need to create an application for each family member traveling
with you or for each individual within the group.

JA 1474

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 54 of 55

Other Required Documentation for Interviews:
Certain visa categories require additional documentation aside from the
DS-160. Standard required supplemental forms include:
 Students (F/M visa): Form I-20 and SEVIS Receipt;
 Exchange Visitors (J visa): DS-2019 and SEVIS Receipt;
 Temporary Workers, Artists, Athletes (H, O or P visas): Form I-797 and

other documents related to your employment;
 Blanket L-1 Applicants: Form I-129S;
 Diplomats and Officials (A, G or NATO visas): Diplomatic Note;
 Treaty Trader/Treaty Investor (E visa): Form DS-156E;
 Domestic Worker, Employment contracts (B1, A3, G5 visa), crew (C1/D
visa), and journalists (I visa): A letter from the employer verifying details of
employment, and a letter from the inviting organization in the U.S., if
applicable.
JA 1475

Case 1:17-cv-02969-TDC Document 33-11 Filed 10/14/17 Page 55 of 55

Important Reminders:
The DS-160 form is not a visa. In nearly all cases, applicants must appear at
the Embassy for a visa interview to complete the application process.
Please arrive 15 minutes before your scheduled interview. If you arrive more
than 30 minutes early, you will be asked to wait outside the Embassy. If you
arrive more than 15 minutes late, you will not be allowed to enter the
Embassy, and you will have to make a new appointment.
For information about the application process, visit
http://kingston.usembassy.gov.

To schedule an appointment, visit http://www.usvisa-jamaica.com/.
JA 1476

Case 1:17-cv-02969-TDC Document 33-13 Filed 10/14/17 Page 1 of 9

EXHIBIT 12

JA 1477

Case 1:17-cv-02969-TDC Document 33-13 Filed 10/14/17 Page 2 of 9

JA 1478

Case 1:17-cv-02969-TDC Document 33-13 Filed 10/14/17 Page 3 of 9

JA 1479

Case 1:17-cv-02969-TDC Document 33-13 Filed 10/14/17 Page 4 of 9

JA 1480

Case 1:17-cv-02969-TDC Document 33-13 Filed 10/14/17 Page 5 of 9

JA 1481

Case 1:17-cv-02969-TDC Document 33-13 Filed 10/14/17 Page 6 of 9

JA 1482

Case 1:17-cv-02969-TDC Document 33-13 Filed 10/14/17 Page 7 of 9

JA 1483

Case 1:17-cv-02969-TDC Document 33-13 Filed 10/14/17 Page 8 of 9

JA 1484

Case 1:17-cv-02969-TDC Document 33-13 Filed 10/14/17 Page 9 of 9

JA 1485

Case 1:17-cv-02969-TDC Document 33-14 Filed 10/14/17 Page 1 of 4

EXHIBIT 13

JA 1486

Case 1:17-cv-02969-TDC Document 33-14 Filed 10/14/17 Page 2 of 4

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JA 1487

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JA 1489

Case 1:17-cv-02969-TDC Document 33-15 Filed 10/14/17 Page 1 of 4

EXHIBIT 14

JA 1490

Case 1:17-cv-02969-TDC Document 33-15 Filed 10/14/17 Page 2 of 4

Opinions

The basic premise of Trump’s
travel ban is wrong
By David Bier September 26

David Bier is an immigration policy analyst at the Cato Institute.
President Trump issued a presidential proclamation this weekend instituting a new “travel ban” that restricts entry to the
United States for nationals of eight countries. The president cites America’s inability to screen out terrorists as the justification
for the ban. But such a ban would not have kept out the 9/11 hijackers or any terrorists since then, nor would it have prevented
any terrorism deaths in decades.
Not only do the purported threats lack merit; the vetting rationale does, too. The ban singles out nationals of Chad, Iran,
Libya, North Korea, Syria, Venezuela, Somalia and Yemen. The purported basis for the proclamation is that most of these
governments fail to share sufficient information about the identities of their nationals with U.S. agencies to, as the
proclamation states, “adjudicate an application” for a visa by their nationals.
This premise is flawed. Under immigration law, the U.S. government doesn’t need to obtain any information on visa
applicants merely to process an application. That’s because applicants bear the burden of proof in the visa process. If they
cannot prove their identity and eligibility, visa adjudicators can simply deny them on an individual basis.
This means that the travel ban exists solely to deny visa adjudicators the opportunity to review each application. The president
apparently doesn’t trust these trained experts to do their jobs. The proclamation provides no reason to doubt the integrity of
consular officials reviewing visa applications, nor does it provide any evidence that they are failing to review evidence
properly.
ADVERTISING

JA 1491

Case 1:17-cv-02969-TDC Document 33-15 Filed 10/14/17 Page 3 of 4

In fact, consular officials do ramp up visa denials for nationals of countries involved in civil wars. The denial rate for Syrians
more than doubled what it was before war broke out in their country. This increase likely reflects the inability of applicants to
obtain certain documents or to prove they will return to their home country when the visa expires.
Supporters of the president’s travel ban may ask: If it’s true that these foreign governments fail to cooperate fully with
information-sharing, why not institute a blanket ban on their nationals and save adjudicators the trouble? The answer is
because many applicants from these countries can still prove their identity and eligibility. That’s what makes the ban
politically necessary, even if it is legally unnecessary.
Tens of thousands of the nationals of these countries have already traveled back and forth peacefully to the United States. The
U.S. government knows exactly who they are. Thousands of others have U.S. citizen family sponsors whose identity can be
proven with a DNA match.
But there is a second major failure in Trump’s proclamation: It equates people’s “nationality” with their “government.” A
person can have the nationality of a country that does not fully cooperate with the United States without ever having lived
under the targeted regime.
Syrians and Iranians, for example, can be born abroad and live their entire lives outside of those countries and yet maintain
Syrian or Iranian nationality. It’s just incorrect to assume any connection between a government and “its people.” Most
countries in the world lack birthright citizenship, so it’s possible that Syrian or Iranian nationality could be their only
nationality.
Given these facts, the proclamation amounts to a White House override of the immigration screeners, preventing the entry of
nationals of these countries who meet eligibility to enter. So it’s worth asking: How poorly have immigration screeners done?
The proclamation presents no evidence that mistakes are at all common for these eight nationalities or even for any others. In
fact, only 34 people have legally immigrated to the United States since 9/11 and been either convicted of terrorism offenses or
killed during an attempted attack. Of those people, a large share arrived as children; they and others were radicalized long
after their entry. At most, only nine attempted to carry out an attack in the United States after being radicalized prior to entry.
That’s one potential terrorist per 41 million visa approvals or entries without visas since 2001.

JA 1492

There is only one post-9/11 terrorism offender who radicalized prior to entering the United States andof 4 actually killed
Case 1:17-cv-02969-TDC Document 33-15 Filed 10/14/17 Page 4 who
people: Tashfeen Malik, the Pakistani woman who participated in the San Bernardino terrorist attack in 2015. But Pakistan
has never been subject to Trump’s travel ban. And even if it were, one instance is hardly a trend.
There is simply no evidence that visa adjudicators aren’t doing their jobs. The president’s most recent proclamation is nothing
more than a political document, not one with any legal or national security basis.
Read more on this topic:
The Post’s View: Trump’s new travel ban still has no justification
Jennifer Rubin: New travel ban implicitly concedes previous ones were ludicrous
Ilya Somin: Trump’s newest travel ban order has many of the same flaws as the old

David Bier is an immigration policy analyst at the Cato Institute.  Follow @David_J_Bier

JA 1493

Case 1:17-cv-02969-TDC Document 40 Filed 10/20/17 Page 1 of 3

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
____________________________________
)
EBLAL ZAKZOK, et al.,
)
)
Plaintiffs,
)
)
v.
)
No. 1:17-cv-02969-TDC
)
DONALD TRUMP, in his official capacity )
as President of the United States, et al.,
)
)
Defendants.
)
____________________________________)
NOTICE OF APPEAL
PLEASE TAKE NOTICE that all defendants hereby appeal to the United States Court of
Appeals for the Fourth Circuit from the Memorandum Opinion and Order at ECF Nos. 36 and 37,
both dated October 17, 2017.

Dated: October 20, 2017

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
STEPHEN M. SCHENNING
Acting United States Attorney
JENNIFER D. RICKETTS
Director, Federal Programs Branch
JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Daniel Schwei
DANIEL SCHWEI (Bar No. 96100)
MICHELLE R. BENNETT (Bar No. 806456)
ARJUN GARG (Bar No. 806537)

1

JA 1494

Case 1:17-cv-02969-TDC Document 40 Filed 10/20/17 Page 2 of 3

Senior Trial Counsel / Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants

2

JA 1495

Case 1:17-cv-02969-TDC Document 40 Filed 10/20/17 Page 3 of 3

CERTIFICATE OF SERVICE
I hereby certify that on October 20, 2017, I electronically filed the foregoing Notice of
Appeal using the Court’s CM/ECF system, causing a notice of filing to be served upon all counsel
of record.

/s/ Daniel Schwei
DANIEL SCHWEI

JA 1496

CERTIFICATE OF SERVICE
I hereby certify that on November 1, 2017, I electronically filed the foregoing
Joint Appendix 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