Intl. Refugee Assistance v. Donald J. Trump

Filing 89

BRIEF by Appellees Grannaz Amirjamshidi, Arab American Association of New York, Jane Doe #2, John Doe #4, John Doe #5, John Does #1 & 3, HIAS, Inc., International Refugee Assistance Project, Afsaneh Khazaeli, Mohamad Mashta, Muhammed Meteab, Middle East Studies Association of North America, Inc., Shapour Shirani, Yemeni-American Merchants Association and Fakhri Ziaolhagh in 17-2231, Appellees Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, John Doe #6, Iranian Alliances Across Borders and Iranian Students' Foundation in 17-2232, Appellees John Doe #1, Jane Doe #2, Jane Doe #3, Sumaya Hamadmad and Eblal Zakzok in 17-2233 in electronic and paper format. Type of Brief: OPENING/RESPONSE. Method of Filing Paper Copies: mail. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 11/16/2017. [1000193375] [17-2231, 17-2232, 17-2233, 17-2240] Omar Jadwat [Entered: 11/15/2017 11:50 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, et al.,
Plaintiffs-Appellees,
IRANIAN ALLIANCES ACROSS BORDERS, et al.,
Plaintiffs-Appellees,
EBLAL ZAKZOK, et al.,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, et al.,
Defendants-Appellants.

On Appeal from the United States District Court
for the District of Maryland, Southern Division
(8:17-cv-00361-TDC)
FIRST CROSS-APPEAL BRIEF FOR APPELLEES
Karen C. Tumlin
Nicholas Espíritu
Melissa S. Keaney
Esther Sung
NATIONAL IMMIGRATION LAW
CENTER
3435 Wilshire Boulevard,
Suite 1600
Los Angeles, CA 90010
Tel: [phone]
Fax: [phone]
[e-mail]

Omar C. Jadwat
Lee Gelernt
Hina Shamsi
Hugh Handeyside
Sarah L. Mehta
David Hausman
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Additional counsel on the next page

[e-mail]
[e-mail]
[e-mail]
Justin B. Cox
NATIONAL IMMIGRATION LAW
CENTER
P.O. Box 170208
Atlanta, GA 30317
Tel: [phone]
Fax: [phone]
[e-mail]
Kathryn Claire Meyer
Mariko Hirose
INTERNATIONAL REFUGEE ASSISTANCE
PROJECT
40 Rector Street, 9th Floor
New York, New York 10006
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
David Rocah
Deborah A. Jeon
Sonia Kumar
Nicholas Taichi Steiner
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF MARYLAND
3600 Clipper Mill Road, Suite 350
Baltimore, MD 21211
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Cecillia D. Wang
Cody H. Wofsy
Spencer E. Amdur
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
David Cole
Daniel Mach
Heather L. Weaver
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
915 15th Street NW
Washington, D.C. 20005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Additional counsel on the next page

Counsel for Plaintiffs-Appellees IRAP, et al.

Johnathan Smith
Sirine Shebaya
MUSLIM ADVOCATES
P.O. Box 66408
Washington, D.C. 20035
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Richard B. Katskee
Eric Rothschild
Andrew L. Nellis^
AMERICANS UNITED FOR SEPARATION
OF CHURCH AND STATE
1310 L St. NW, Ste. 200
Washington, D.C. 20005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Mark H. Lynch
Mark W. Mosier
Herbert L. Fenster
Jose E. Arvelo
John W. Sorrenti
Katherine E. Cahoy
Rebecca G. Van Tassell
Karun Tilak
COVINGTON & BURLING LLP
One City Center
850 10th Street, NW
Washington, D.C. 20001
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Counsel for Plaintiffs-Appellees I.A.A.B., et al.
Charles E. Davidow
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
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Lena F. Masri
Gadeir Abbas
COUNCIL ON AMERICAN-ISLAMIC
RELATIONS
453 New Jersey Avenue SE
Washington, D.C. 20003
Tel.: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Additional counsel on the next page

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-Appellees Zakzok, et al.
^Admitted only in New York; supervised by Richard B. Katskee, a member of the
D.C. Bar

TABLE OF CONTENTS
INTRODUCTION .....................................................................................................1
STATEMENT OF JURISDICTION..........................................................................3
STATEMENT OF THE ISSUES...............................................................................3
STATEMENT OF THE CASE ..................................................................................4
SUMMARY OF ARGUMENT ...............................................................................11
STANDARD OF REVIEW .....................................................................................14
ARGUMENT ...........................................................................................................14
I. PLAINTIFFS’ CLAIMS ARE JUSTICIABLE. ......................................14
A. Plaintiffs’ Statutory Claims Are Justiciable. ................................14
B. Plaintiffs’ Constitutional Claims Are Justiciable. ........................19
II. THE PROCLAMATION VIOLATES THE IMMIGRATION
AND NATIONALITY ACT. ..................................................................22
A. The Proclamation Violates the INA’s Non-Discrimination
Mandate. .........................................................................................23
B. The Proclamation Exceeds the President’s Delegated Authority
Under § 1182(f). .............................................................................28
1. The President Cannot Override the INA. ........................... 28
2. The Proclamation Conflicts with the Basic Design
of Congress’s Admissions System. ................................ 33
III. THE PROCLAMATION VIOLATES THE ESTABLISHMENT
CLAUSE. ................................................................................................41
A. Mandel Does Not Defeat the Plaintiffs’ Establishment Clause
Claim ..............................................................................................42
B. The Proclamation Suffers from the Same Constitutional Defects as
Did the Precursor Executive Orders...............................................44
i

C. The Proclamation Violates the Establishment Clause’s
Fundamental Command that the Government Not Target and
Disfavor People Based on Their Religion. ....................................52
IV. A NATIONWIDE PRELIMINARY INJUNCTION
IS APPROPRIATE. ................................................................................55
V. CROSS-APPEAL: THE DISTRICT COURT ERRED IN LIMITING
THE PRELIMINARY INJUNCTION TO INDIVIDUALS WITH
BONA FIDE RELATIONSHIPS TO U.S. PERSONS OR ENTITIES. 57
A. The Partial Injunction Does Not Provide Complete Relief to the
Plaintiffs. ........................................................................................58
B. The Government’s Harms Are Significantly Weaker Even Than
Those It Claimed in Defending EO-2 ............................................60
C. A Full Injunction Is Appropriate After This Court Reaches the
Merits .............................................................................................62
VI. CROSS-APPEAL: THE DISTRICT COURT ERRED IN
SUGGESTING THAT IRAP AND HIAS CLIENTS
CATEGORICALLY LACK BONA FIDE RELATIONSHIPS. ............63
CONCLUSION .......................................................................................................65

ii

TABLE OF AUTHORITIES
Cases
Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986) ................................ 16, 18, 28
Arizona v. United States, 567 U.S. 387 (2012) ........................................................29
Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (2015) ........................17
Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012)............................................... 22, 53
Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet,
512 U.S. 687 (1994) ................................................................................ 45, 46, 54
Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986) .............17
Califano v. Yamasaki, 442 U.S. 682 (1979) ............................................................59
Carlson v. Landon, 342 U.S. 524 (1952) .................................................................30
Catholic League for Religious & Civil Rights v. City & County of San Francisco,
624 F.3d 1043 (9th Cir. 2010) (en banc) ..............................................................22
Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996) ...........................18
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) ................................................................................ 46, 52, 53
Clinton v. City of New York, 524 U.S. 417 (1998) ........................................... 23, 62
Crowley Caribbean Transport, Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994) ...........17
Cty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989) ......54
Dames & Moore v. Regan, 453 U.S. 654 (1981) .....................................................17
Edwards v. Aguillard, 482 U.S. 578 (1987) ............................................................46
Engel v. Vitale, 370 U.S. 421 (1962) ......................................................................62
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) .......................36
Felix v. City of Bloomfield, 841 F.3d 848 (10th Cir. 2016) .....................................48
i

Fiallo v. Bell, 430 U.S. 787 (1977) ................................................................... 16, 43
Harisiades v. Shaughnessy, 342 U.S. 580 (1952)....................................................16
Hawai‘i v. Trump, 245 F. Supp. 3d 1227 (D. Haw. 2017) ........................................5
Hawai‘i v. Trump, 859 F.3d 741 (9th Cir. 2017) (per curiam) ........................ passim
Hawai‘i v. Trump, 871 F.3d 646 (9th Cir. 2017) (per curiam). ...............................59
Hawai‘i v. Trump, — F. Supp. 3d —, 2017 WL 2989048
(D. Haw. July 13, 2017) .......................................................................................64
Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411 (4th Cir. 1999) ........14
INS v. Chadha, 462 U.S. 919 (1983) .......................................................................23
Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539 (D. Md. 2017) ......4
Int’l Refugee Assistance Project v. Trump,
857 F.3d 554 (4th Cir.) (en banc), ................................................................ passim
Int’l Union of Bricklayers & Allied Craftsmen v. Meese,
761 F.2d 798 (D.C. Cir. 1985)....................................................................... 15, 16
Kerry v. Din, 135 S. Ct. 2128 (2015) ................................................................ 20, 43
Kleindienst v. Mandel, 408 U.S. 753 (1972) .............................................. 20, 41, 42
Korematsu v. United States, 323 U.S. 214 (1944) ...................................................55
Kornahrens v. Evatt, 66 F.3d 1350 (4th Cir. 1995) ...................................................1
Larson v. Valente, 456 U.S. 228 (1982) ..................................................... 53, 54, 55
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State,
45 F.3d 469 (D.C. Cir. 1995)................................................................... 16, 18, 27
Lewis v. Casey, 518 U.S. 343 (1996) .......................................................................57
Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) ....18
Mahler v. Eby, 264 U.S. 32 (1924) ..........................................................................30
Malek-Marzban v. INS, 653 F.2d 113 (4th Cir. 1981) .............................................27
ii

McCreary Cty. v. ACLU of Ky., 545 U.S. 844 (2005) .............................................46
McGowan v. Maryland, 366 U.S. 420 (1961) .................................................. 21, 62
Morfin v. Tillerson, 851 F. 3d 710 (7th Cir. 2017) ..................................................42
Mulligan v. Schultz, 848 F.2d 655 (5th Cir. 1988) ..................................................15
Nat’l Min. Ass’n v. U.S. Army Corps of Engineers,
145 F.3d 1399 (D.C. Cir. 1998)............................................................................62
Olsen v. Albright, 990 F. Supp. 31 (D.D.C. 1997) ..................................................26
Patel v. Reno, 134 F.3d 929 (9th Cir. 1997) ............................................................15
Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976) .......................................27
Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) ................... 15, 16, 17
Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993) ............................ 14, 19
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) .................................. 45, 46
Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017).............................................43
Trump v. Hawai‘i, — S. Ct. —, 2017 WL 4014838 (Sept. 12, 2017) .....................64
Trump v. Int’l Refugee Assistant Project,
137 S. Ct. 2080 (2017) (per curiam)............................................................. passim
Two Guys From Harrison-Allentown v. McGinley, 366 U.S. 582 (1961)........ 20, 21
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) .................. 16, 30
United States v. Adewani, 467 F.3d 1340 (D.C. Cir. 2006).......................................1
United States v. Witkovich, 353 U.S. 194 (1957) ....................................................30
Valley Forge Christian College v. Americans United for Separation of Church and
State, Inc., 454 U.S. 464 (1982) .................................................................... 21, 22
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) .............................................17
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ................ 22, 28, 29
iii

Zemel v. Rusk, 381 U.S. 1 (1965) ............................................................................30
Statutes
5 U.S.C. § 701(a)(2) .................................................................................................19
6 U.S.C. § 485(f)(1) .................................................................................................31
6 U.S.C. § 236(b)(1).................................................................................................17
8 U.S.C. § 1104(a)(1) ...............................................................................................17
8 U.S.C. § 1152(a) ........................................................................................... passim
8 U.S.C. §1153 .........................................................................................................29
8 U.S.C. § 1182(a) ................................................................................ 26, 31, 33, 37
8 U.S.C. § 1182(f) ............................................................................................ passim
8 U.S.C. § 1187 ........................................................................................................34
8 U.S.C. § 1187(a)(12) .............................................................................................37
8 U.S.C. § 1187a ......................................................................................................39
8 U.S.C. §1201(a)(1) ................................................................................................17
8 U.S.C. §1201(g) ....................................................................................................33
8 U.S.C. § 1202 ........................................................................................................34
8 U.S.C. § 1361 ........................................................................................... 34, 35, 39
22 U.S.C. § 1631a(c)................................................................................................31
Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. No. 107173 ........................................................................................................................37
Immigration Act of 1924, Pub. L. No. 68-139 ........................................................35
Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. No.
110-53 ...................................................................................................................36
Intelligence Reform and Terrorism Prevention Act of 2004,
iv

Pub. L. No. 108-458 .............................................................................................36
Pub. L. No. 114-113, div. O, tit. II, § 203, 129 Stat. 2242 ......................................37
Regulations
22 C.F.R. § 40.6 .......................................................................................................39
Exec. Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017) ........................ 1, 5, 51
Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017).................................4, 5
Exec. Order No. 12,172, 44 Fed. Reg. 67947 (Nov. 26, 1979) ...............................32
Exec. Order No. 12,807, 57 Fed. Reg. 23133 (May 24, 1992)................................32
Proclamation No. 5377, 50 Fed. Reg. 41329 (Oct. 4, 1985) ............................ 32, 33
Proclamation No. 9645, 82 Fed. Reg. 45161 (Sep. 24, 2017). ................. 1, 8, 24, 34
Legislative History
161 Cong. Rec. H9050-58 (Dec. 8, 2015) ........................................................ 37, 38
H.R. Rep. No. 68-176, 68 Cong., 1st Sess., Feb. 9, 1924........................................35
H.R. Rep. No. 1365, H.R. 5678, 82d Cong., 2d Sess., Feb. 14, 1952 .....................38
Other Authorities
9 Foreign Affairs Manual 302.14-3(B) (2016) ........................................................32
The Declaration of Independence (U.S. 1776) ........................................................29
Lyndon B. Johnson, Remarks at the Signing of the Immigration Bill, 1 WEEKLY
COMP. PRES. DOC. 364 (Oct. 3, 1965). ......................................................... 24, 26

v

INTRODUCTION
On September 24, the President issued Proclamation 9645 (the
“Proclamation”), imposing an indefinite ban on most travel to the United States by
more than 150 million people, the vast majority of whom are Muslim. 82 Fed.
Reg. 45161.

By its own terms, the Proclamation flows directly from the

President’s March 6 Executive Order (“EO-2”), 82 Fed. Reg. 13209, which
imposed a similar—but temporary—ban, and which this Court found to violate the
Establishment Clause. Int’l Refugee Assistance Project v. Trump, 857 F.3d 554,
572 (4th Cir.) (en banc), vacated as moot, 86 USLW 3175 (U.S. Oct. 10, 2017)
(EO-2 “drips with religious intolerance, animus, and discrimination”). 1

The

government claims, however, that everything is different this time because it
undertook a review and recommendation procedure before the President imposed
the new ban in the Proclamation.
The district court carefully considered that claim, and rejected it. As the
district court explained, the government’s argument that the Proclamation has
wiped the slate clean cannot be squared with the facts, including: the remarkable
similarity between the current ban and its predecessors; EO-2’s directives, which
1

IRAP remains persuasive authority, particularly as an en banc decision of this
Court addressing an earlier stage of this same litigation. See Kornahrens v. Evatt,
66 F.3d 1350, 1357 (4th Cir. 1995) (relying on vacated decision as “instructive”
and “persuasive”); United States v. Adewani, 467 F.3d 1340, 1342 (D.C. Cir.
2006).
1

effectively “pre-ordained” the outcome of the review-and-recommendation
process; the subjective, post-hoc manipulation of the process to make the results
even more of a Muslim ban; and the President’s own statements “cast[ing] the
Proclamation as the inextricable re-animation of the twice-enjoined Muslim ban.”
J.A. 1070, 1075.
Once again, the government’s arguments in response boil down to a demand
for total deference, no matter how strong the evidence is, and an assertion that the
Court should simply ignore facts inconvenient to the government. The Court
properly rejected the government’s demands for judicial abdication before, and it
should do so again.
Even leaving aside the Proclamation’s purpose and effect of denigrating
Islam and disfavoring Muslims, the new ban violates the Immigration and
Nationality Act (“INA”). It discriminates on the basis of national origin in direct
violation of 8 U.S.C. § 1152(a)(1)(A), as the district court found, and it also
exceeds the President’s statutory authority under 8 U.S.C. § 1182(f) by unilaterally
replacing Congress’s detailed admissions system with one designed by the
President.

The government’s breathtaking defense—that the President can

override Congress at will, recrafting the immigration system however he sees fit
regardless of the Congressional judgments embodied in the INA—is anathema to
the separation of powers.
2

The district court’s injunction should therefore be affirmed in full as far as it
goes. But, because the court’s partial preliminary injunction does not provide
complete relief to all the plaintiffs, who are harmed by the indefinite ban’s effects
on noncitizens lacking formal relationships with U.S. persons, the Court should
modify the preliminary injunction so that it is no longer “limited to barring
enforcement of Section 2 against those individuals who have a credible claim of a
bona fide relationship with a person or entity in the United States.”
STATEMENT OF JURISDICTION
The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. J.A.
475. This Court has jurisdiction over the appeal and cross-appeal under 28 U.S.C.
§ 1292(a)(1). The district court entered its order granting a preliminary injunction
in these cases on October 17, 2017. J.A. 1084. Defendants filed timely notices of
appeal on October 20, 2017. J.A. 1087, 1198, 1494. Plaintiffs in No. 17-2240
filed a timely notice of cross-appeal on October 23, 2017. J.A. 1090.
STATEMENT OF THE ISSUES
Did the district court abuse its discretion by issuing the preliminary
injunction?
On cross-appeal:

3

1) Did the district court err in limiting the preliminary injunction to persons
with a bona fide relationship with an individual or entity in the United States?
2) Even if such a limitation were appropriate, did the district court’s order
define such relationships too narrowly?
STATEMENT OF THE CASE
The Proclamation is the third order the President has signed this year
banning more than one hundred million individuals from Muslim-majority nations
from coming to the United States. See generally J.A. 997-1013 (district court
findings of fact). These bans fulfill months of promises to ban Muslims from the
United States—promises the President stood by after his election and on the day he
signed the first order, and that he justified with the assertions that “Islam hates us”
and “we’re having problems with the Muslims, and we’re having problems with
Muslims coming into the country.” J.A. 997.
The President signed the first ban, 82 Fed. Reg. 8977 (“EO-1”), on his
eighth day in office and with “no consultation with the Department of State, the
Department of Defense, the Department of Justice, or the Department of Homeland
Security.” Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 545 (D.
Md. 2017); IRAP, 857 F.3d at 632 (Thacker, J., concurring) (Attorney General was
“actively shielded” from learning the order’s contents); J.A. 1060. The ban was
swiftly challenged and enjoined. J.A. 1000-01.
4

The second iteration of the ban, signed March 6, 2017, reproduced the
original in most respects. 82 Fed. Reg. 13209. In prior proceedings in this case,
the district court enjoined Section 2(c) of EO-2, and this Court, sitting en banc,
affirmed in relevant part. IRAP, 857 F.3d at 604-05; see also Hawai‘i v. Trump,
245 F. Supp. 3d 1227 (D. Haw.), aff’d in relevant part, 859 F.3d 741 (9th Cir.
2017) (per curiam).
EO-2, like EO-1 before it, directed reviews of the information other
countries share with the United States to facilitate vetting of visa applicants. EO1 § 3(a)-(b); EO-2 § 2(a)-(b). It further directed that, once the vetting review was
complete, the Secretary of Homeland Security “shall” submit “a list of countries”
to be subjected to an indefinite ban. EO-1 § 3(e)-(f); EO-2 § 2(e)-(f).
While the Department of Homeland Security was still undertaking the
review and recommendations required by EO-2, the President repeatedly issued
public statements criticizing the injunctions that had been issued against EO-2 and
promising to put a “tougher version” of the ban into place. J.A. 1006-07. The
White House also put an individual in charge of the Department of Homeland
Security’s task force on implementing executive orders, including the directives in
EO-2, who said in 2014 that a blanket ban on visas for Muslim-majority countries

5

“is one of these sort of great ideas that can never happen,” 2 and has a consistent,
public history of hostility toward Muslims and Islam, including recent assertions
that a notorious mass shooter was simply “a Muslim who is following the strictures
of Islam.”3
As directed, the Department of Homeland Security submitted a list of
countries to ban. And on September 24, the President forged the next link in this
chain of events: the Proclamation.
The Proclamation, like the first two bans, would disproportionately ban
Muslims.

The ban encompasses nationals of eight countries: five of the six

countries barred by both EO-1 and EO-2—Iran, Libya, Somalia, Syria, and
Yemen—along with Chad, North Korea, and individuals affiliated with certain
government agencies in Venezuela. Individuals seeking immigrant visas, which

2

Eric Hananoki, New DHS Senior Advisor Pushed “Mosque Surveillance
Program,” Claimed that Muslims “By-And-Large” Want to Subjugate NonMuslims,
Media
Matters
(Mar.
14,
2017),
https://www.mediamatters.org/research/2017/03/14/new-dhs-senior-adviserpushed-mosque-surveillance-program-claimed-muslims-and-large-wantsubjugate/215634.
3

Noah Lanard, A Fake Jihadist Has Landed a Top Job at Homeland Security,
Mother Jones (Nov. 1, 2017), http://www.motherjones.com/politics/2017/11/afake-jihadist-has-landed-a-top-job-at-homeland-security/. This individual’s role
overseeing executive order implementation at DHS came to light on November 1,
after the district court issued its decision, so the relevant sources are not in the
record below.
6

lead to permanent resident status and the possibility of U.S. citizenship, from each
designated country except Venezuela are banned. Restrictions on nonimmigrant
visas vary among the banned countries. See J.A. 511, 868-69 (charts comparing
bans imposed by the three orders).
Chad and the five countries banned by the Proclamation, EO-1, and EO-2,
are majority-Muslim, and have a combined population of approximately 150
million. J.A. 852-859. Almost everyone whom the Proclamation will prevent
from obtaining visas or entering the United States is from one of those six
nations—which collectively are approximately 95% Muslim. J.A. 234-248.
In contrast, virtually no one from North Korea or Venezuela—the two
countries named in the Proclamation that are not majority-Muslim—will be
affected in that way. North Korea accounts for a negligible number of visas. And
for Venezuela, only officials of particular Venezuelan government agencies and
their families are banned, and then only from obtaining tourist or temporary visas.
To illustrate, if in effect in 2016, the Proclamation would have barred 12,998
Yemenis, 7,727 Iranians, 9 North Koreans, and no Venezuelans from obtaining
immigrant visas. J.A. 868.
To justify the bans, the Proclamation asserts that countries were assessed
against a set of baseline criteria. Those criteria were not applied uniformly. See
J.A. 1283-1300 (David Bier, Travel Ban Is Based on Executive Whim, Not
7

Objective Criteria, Cato Institute, Oct. 9, 2017) (explaining, for example, that more
than 80 countries fail to issue electronic passports, yet three of the banned Muslimmajority countries do issue such passports). The Proclamation also acknowledges
that Somalia (a majority-Muslim country) was banned even though it satisfies the
government’s baseline criteria, and that Venezuela (a country that is not majorityMuslim) was effectively exempted even though it fails to meet the baseline.
Proclamation §§ 2(f), 2(h).4
Like its predecessors, the Proclamation does not cite any visa vetting failures
or otherwise explain how the President concluded that existing vetting procedures
were or might be inadequate. And a sworn declaration by 49 former national
security officials explains that the ban is “unnecessary” because of the robust
existing vetting procedures, and will instead “cause serious harm” to national
security. J.A. 897.
The individual plaintiffs in this litigation are U.S. citizens and lawful
permanent residents whose relatives—including spouses, parents, and children—
will be unable to obtain visas if the Proclamation takes effect. The organizational

4

The Proclamation states that the government has other ways of verifying
Venezuelans’ identity. But it does not suggest that Venezuela is unique in that
regard. See J.A. 1300 (David Bier, Travel Ban Is Based on Executive Whim, Not
Objective Criteria, Cato Institute, Oct. 9, 2017) (observing that “there is absolutely
no doubt that this factor applies to all eight travel ban countries”).
8

plaintiffs, which include legal and social services organizations and associations of
scholars, merchants, and young people, have similarly situated members and
clients. See, e.g., J.A. 1244-48, 587-89, 597-98, 612-13; J.A. 1259-62 (spouses);
J.A. 1268-69 (fiancé); J.A. 573-75, 1170-71, 1249, 1251, (parent and child); J.A.
1260 (parent and stepchild); J.A. 1174-75 (in-laws).
Several of the plaintiffs have relatives who are gravely ill and are seeking
urgent family reunification that will be prevented by the Proclamation. See, e.g.,
J.A. 1245-46 (critically ill infant); J.A. 1256 (father-in-law with cancer); J.A. 591
(husband with terminal cancer). Some of the plaintiffs’ loved ones have little
connection with their country of nationality, but are excluded nonetheless. See,
e.g., J.A. 1256 (Syrian national has never been to Syria). And several plaintiffs
fear that if the Proclamation takes effect, their loved ones will have no choice but
to return to countries where they face grave danger. See, e.g., J.A. 611-13, 1159,
1250, 1266.
The organizational plaintiffs are also injured in their own right.

For

example, plaintiff MESA’s mission of bringing together scholars of Middle
Eastern Studies will suffer, as will its finances, which rely heavily on the annual
meeting that many members and other scholars will no longer be able to attend.
J.A. 557-60.

Similarly, plaintiff Iranian Alliances Across Borders’ planned

International Conference on the Iranian Diaspora in New York in April 2018 will
9

be severely impacted if the Proclamation goes into effect. J.A. 1191. Plaintiffs
Arab-American Association of New York and International Refugee Assistance
Project (“IRAP”) have both been forced to divert resources to aid clients and
others. J.A. 565, 567-68, 576-78.
The district court concluded that the Proclamation’s nationality-based ban on
the issuance and use of immigrant visas violated the INA’s anti-discrimination
provision, 8 U.S.C. § 1152(a).

J.A. 1034-40 (rejecting the government’s

distinction between visa issuance and entry). The court declined to hold the rest of
the Proclamation invalid under 8 U.S.C. § 1182(f), but it acknowledged that “[i]f
there is an example of a § 1182(f) order, past or present, that exceeds the authority
of that statute, it would be this one.” J.A. 1051.
The district court then held that the Proclamation, like EO-2, violated the
Establishment Clause.

J.A. 1053-76.

In so doing, the court rejected the

government’s argument that the Proclamation’s “review process” or the “inclusion
of two non-majority Muslim nations” negated the ample evidence of improper
purpose and effect.

J.A. 1068, 1066.

The district court explained that the

Proclamation arose from EO-2’s criteria for banning countries and from EO-2’s
requirement that the review process yield a list of banned countries. J.A. 1072. It
observed that the “underlying architecture of [EO-1, EO-2,] and the Proclamation
is fundamentally the same.” J.A. 1067. And it canvassed public statements by the
10

President since EO-2, which showed that “even before President Trump had
received any reports on the DHS Review,” he “had already decided that the travel
ban would continue.” J.A. 1074. The court concluded that “the Proclamation [i]s
the inextricable re-animation of the twice-enjoined Muslim ban,” only this time it
is “no longer temporary.” J.A. 1075.
Accordingly, the district court issued a preliminary injunction prohibiting
the government from enforcing Section 2 of the Proclamation. The preliminary
injunction does not cover North Korea and the limited group of Venezuelans
subject to the ban. J.A. 1081. The district court also limited the injunction’s
protection to “those individuals who have a credible claim of a bona fide
relationship with a person or entity in the United States.” J.A. 1080 (internal
quotation marks omitted).
SUMMARY OF ARGUMENT
I.

The district court correctly held that the plaintiffs’ claims are justiciable.

The doctrine of consular nonreviewability does not apply to policies like the
Proclamation, and the plaintiffs have a cause of action under the APA and in
equity.

Plaintiffs’ constitutional claims are also justiciable, as this Court

previously held, because the plaintiffs invoke their own rights under the
Establishment Clause to be free from religious isolation, exclusion, and
condemnation.
11

II.

The Proclamation violates the INA. As the district court held, it violates 8

U.S.C. § 1152(a)(1)(A)’s prohibition of nationality discrimination. The
Proclamation also exceeds the President’s authority to suspend entry under 8
U.S.C. § 1182(f). Section 1182(f)’s role in the INA is not to allow the President to
unilaterally rewrite or discard fundamental aspects of the INA, like its two-track
admissions system for visa and visa-less travel. But that is what the Proclamation
does, by indefinitely banning eligible individuals from receiving visas even if they
can meet their burden under the INA, based solely on their governments’ failure to
satisfy some of the visa waiver criteria.
III.

The district court correctly held that the Proclamation, like EO-2, violates

the Establishment Clause. As this Court previously held, the Court may look
beyond the face of the Proclamation because plaintiffs have adduced ample
evidence of bad faith. The effect of the ban will overwhelmingly fall on Muslims,
and the ban on North Korea and certain Venezuelan officials will have little
practical impact. The Proclamation’s context and history, like EO-2’s, makes clear
that this is another attempt to implement the promised Muslim ban.

The

Proclamation’s review and recommendation process does not undercut that
conclusion, and in fact underscores the continuity from EO-2.
IV.

The injunction was appropriate in light of the religious denigration and

separation from loved ones that plaintiffs face, and the lack of concrete or
12

imminent injury to the government from interim relief. As this Court previously
held, nationwide relief is warranted because the ban’s effect extends nationwide
and a narrower injunction would not fully remedy the ban’s condemnation of the
plaintiffs.
V.

The district court erred in narrowing its injunction to only noncitizens who

have a formal, documented relationship with a U.S. person or entity. The Supreme
Court fashioned that limitation in a different factual and procedural context. This
case now involves an indefinite ban and a wider array of plaintiffs than were
before the Supreme Court, who would suffer a variety of harms from the exclusion
of even individuals without formal relationships in this country. The government’s
interests are weaker than they were before the Supreme Court. And the task before
the district court was fashioning interim relief after preliminarily deciding the
merits, not crafting a stay pending initial consideration of the merits. The statutory
and constitutional violations here, and the threatened injuries to the plaintiffs, merit
a preliminary injunction that is not narrowed in this way.
VI.

At a minimum, the district court’s injunction should be modified to make

clear that relationships between entities in the United States and their clients are
sufficient under the preliminary injunction so long as they are formal, documented,
and formed in the ordinary course.

13

STANDARD OF REVIEW
The Court reviews “the district court’s injunction for abuse of discretion.”
Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 416 (4th Cir. 1999).
ARGUMENT
I.

PLAINTIFFS’ CLAIMS ARE JUSTICIABLE.
The government relies on two sweeping arguments to oppose judicial review

here: That this Court has no power at all to consider statutory claims involving
exclusion policies, and that the plaintiffs, who are personally affected by the
Proclamation, cannot challenge its denigration of their religion. Both arguments
lack merit.
A.
1.

Plaintiffs’ Statutory Claims Are Justiciable.
The government makes the startling claim that the courts cannot

review whether the executive’s exclusion policies are consistent with the
governing statutes. Br. 19-22.
No court has ever recognized the broad nonreviewability principle that the
government presses here, despite its claim that the principle is “deeply rooted” in
the law. To the contrary, the Supreme Court itself reviewed a statutory claim
against an § 1182(f) suspension in Sale v. Haitian Centers Council, Inc., 509 U.S.
155, 165-66, 172 & n.27 (1993). The government offers no persuasive reason to
discount Sale. Br. 25. Indeed, the government in Sale vigorously argued that
14

exclusion policies under § 1182(f) were immune from judicial review. U.S. Br.
13-18 & n.9, 55-57, 1992 WL 541276, Reply Br. 1-4, 1993 WL 290141, Sale v.
Haitian Ctrs. Council, Inc. (No. 92-344).

The Supreme Court nonetheless

reviewed the claim on the merits—precisely what the government now claims has
long been forbidden.
What the government’s non-justiciability argument really asks this Court to
do is to enormously expand the doctrine of consular non-reviewability to preclude
review of statutory claims against all exclusion policies.

The consular non-

reviewability doctrine—which is itself not absolute—restricts the review of purely
statutory challenges to “a consular official’s decision to issue or withhold a visa.”
Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999) (emphasis
added). As the circuits have uniformly held, that doctrine applies only to “a
particular decision in a particular case,” not a “general” policy like the one in this
case. Int’l Union of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798, 801
(D.C. Cir. 1985); see Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir. 1997) (same);
Mulligan v. Schultz, 848 F.2d 655, 657 (5th Cir. 1988) (same).
The single out-of-circuit case on which the government leans heavily (Br.
20-22), Saavedra Bruno, was a routine application of the consular nonreviewability doctrine to a single noncitizen’s visa denial. The court repeatedly

15

specified that its analysis pertained to the “decisions of consular officials.” 197
F.3d at 1160 (emphasis added); see id. at 1158, 1162.
Indeed, the very same Circuit has repeatedly reviewed statutory challenges
to admissions policies on the merits. See Int’l Union of Bricklayers, 761 F.2d at
801 (collecting cases); see also Legal Assistance for Vietnamese Asylum Seekers v.
Dep’t of State, 45 F.3d 469, 472 (D.C. Cir. 1995) (“LAVAS”) (reviewing visa
policy abroad), vacated on other grounds, 519 U.S. 1 (1996). It has even reviewed
statutory claims against individual visa denials when necessary to avoid
constitutional issues. See Abourezk v. Reagan, 785 F.2d 1043, 1050, 1053 (D.C.
Cir. 1986); accord id. at 1062 n.1 (Bork, J., dissenting).5
Consular non-reviewability does not, as the government claims, “invert the
constitutional structure [by] limit[ing] review in [the consular] context while
permitting review of the President’s decision[s].” Br. 21. Distinctions between
individual adjudications and high-level policy are common, both in immigration
and throughout the law.

See IRAP, 857 F.3d at 587 (distinguishing between

individual fact-finding and “high-level government policy”); Washington v.
The government’s other cases are even further afield, because they review claims
against admissions policies on the merits, including statutory claims where raised.
See Fiallo v. Bell, 430 U.S. 787, 792-99 (1977); Harisiades v. Shaughnessy, 342
U.S. 580, 583 & n.4 (1952); United States ex rel. Knauff v. Shaughnessy, 338 U.S.
537, 544-47 (1950) (reviewing two statutory claims against regulations
promulgated under a presidential proclamation).
5

16

Trump, 847 F.3d 1151, 1162-63 (9th Cir. 2017) (per curiam) (same); Bowen v.
Michigan Academy of Family Physicians, 476 U.S. 667, 675-76 (1986) (statute
granted review of “a regulation” but not a single “determination” made under that
regulation); cf. Crowley Caribbean Transport, Inc. v. Pena, 37 F.3d 671, 676-77
(D.C. Cir. 1994) (“There are ample reasons for distinguishing the two
situations.”).6
2.

The government also argues that Plaintiffs lack a cause of action to

bring their statutory claims. It first points out that the President is not subject to
the APA. Br. 22. But no APA cause of action is necessary to review presidential
action, which the Court can review under its inherent equitable authority. See
Dames & Moore v. Regan, 453 U.S. 654, 669-88 (1981) (reviewing multiple
presidential orders in equity); see also Armstrong v. Exceptional Child Ctr., Inc.,
135 S. Ct. 1378, 1384-85 (2015) (describing “a long history of judicial review of
illegal executive action” by “courts of equity”).
Nor can the government dispute that the plaintiffs have a cause of action
against the agencies implementing the Proclamation. “[I]t is now well established”

6

Consular officers make millions of individual visa decisions each year, in most
cases thousands of miles from the United States, and have unique discretion over
granting and denying visas. See, e.g., Saavedra Bruno, 197 F.3d at 1156; 8 U.S.C.
§§ 1104(a)(1), 1201(a)(1); 6 U.S.C. § 236(b)(1). This case involves no similar
considerations.
17

that “[r]eview of a Presidential action can ordinarily be obtained in a suit seeking
to enjoin the officers who attempt to enforce the President’s directive.” Chamber
of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (internal quotation
marks omitted); see id. at 1326-27 (holding that an agency’s actions to implement
an executive order are not “insulate[d] . . . from judicial review under the APA” or
“a non-statutory cause of action”).
The government argues that the plaintiffs nonetheless fall outside the
relevant zone of interests. Br. 24. Both the Ninth and D.C. Circuits have correctly
held otherwise, as the district court did here. See Hawai‘i, 859 F.3d at 766-67
(concluding that relatives of visa applicants “fall well within the zone of interest
Congress intended to protect,” as did employer) (quoting LAVAS, 45 F.3d at 47172); Abourezk, 785 F.2d at 1047, 1050-51 (holding individuals who invited
noncitizens “to attend meetings or address audiences” were within the zone of
interests); J.A. 1017, 1021, 1030. The zone-of-interests test “forecloses suit only
when a plaintiff’s interests” are “marginally related to or inconsistent with the
purposes implicit in the statute.” Lexmark Int’l, Inc. v. Static Control Components,
Inc., 134 S. Ct. 1377, 1389 (2014) (internal quotation marks omitted).

18

The

plaintiffs here—family members, spouses, employers, colleagues, conference
hosts—easily clear that bar.7
Plaintiffs’ claims are also ripe. As before, plaintiffs have brought a facial
challenge that “is squarely presented for [the Court’s] review” and “not dependent
on the factual uncertainties of the waiver process.” IRAP, 857 F.3d at 587 (holding
that the waiver process would impose “undue hardship”). In any event, several
plaintiffs’ relatives have already completed their interviews and are awaiting the
administrative processing of their visas. See, e.g., J.A. 605-06; 587-88; 603; 1255;
1247; 1268; 1175; 1171. Their injuries from the Proclamation’s ban are all too
imminent. Ripeness is not a problem in this case.
B.

Plaintiffs’ Constitutional Claims Are Justiciable.

Turning to the constitutional claims, the government argues that because the
Proclamation does not deny visas to the plaintiffs themselves, it cannot injure them,
or violate their rights, in a legally relevant manner. That argument has been
rejected at every stage of this case, and fails here for the same reasons. See IRAP,
857 F.3d at 582-87; J.A. 1023-27.
7

The government’s contention that § 1182(f) orders are “committed to agency
discretion” because there is no meaningful statutory standard of review, Br. 24-25
(quoting 5 U.S.C. § 701(a)(2)); Br. 30,)), depends entirely on its incorrect view, on
the merits, that § 1182(f) grants the President limitless power, addressed infra. See
also Sale, 509 U.S. at 165-66. And in any event this objection is no answer to
plaintiffs’ argument under § 1152(a).
19

The plaintiffs have explained in detail how they have been injured by the
government’s condemnation of their religion. For example, IRAP Plaintiff John
Doe #4 feels “demeaned” by the Proclamation’s religious intent, and he has
perceived the bans as “collective punishment.”

J.A. 588-89.

For plaintiff

Khazaeli, the bans have “taken the discrimination that my family has previously
endured because people have seen us as Muslim and made it into law.” J.A. 593.
The same is true for YAMA’s and MESA’s members, see J.A. 608, 611, 555-56,
clients of AAANY and IRAP, see J.A. 567, 578, 579-80, and other individual
plaintiffs in this case, see, e.g., J.A. 585, 571-72, 574, 600-01, 606-07.
The Supreme Court has repeatedly decided the claims of individuals in the
United States who—like the plaintiffs here—allege that the government is injuring
them and violating their rights by refusing to allow foreign nationals abroad to
travel to the United States. See Kleindienst v. Mandel, 408 U.S. 753, 764-65
(1972); Kerry v. Din, 135 S. Ct. 2128, 2140-42 (2015) (Kennedy, J., concurring);
cf. Oral Arg., Washington v. Trump, No. 17-35105, 2017 WLNR 4070578 (9th Cir.
Feb. 7, 2017) (government conceding that “a U.S. citizen with a connection to
someone seeking entry” would have standing to challenge EO-1).
The Supreme Court has also recognized that injuries that arise where the
government regulates others are cognizable under the Establishment Clause. In
Two Guys From Harrison-Allentown v. McGinley, 366 U.S. 582 (1961), the
20

plaintiff company had standing to challenge a Sunday closing law, even though
only the company’s employees—not the company itself—had been regulated,
prosecuted, and fined for violating a previous version of the law, or threatened with
prosecution under the new version. Id. at 585-87. Two Guys’ companion case,
McGowan v. Maryland, 366 U.S. 420 (1961), did not hold that plaintiffs had to be
directly regulated to invoke the Establishment Clause.

McGowan merely

explained that the plaintiffs in that case could not allege that their Free Exercise
Clause rights were violated without explaining what their religious beliefs were.
Id. at 429. But it went on to hold that the plaintiffs did have standing to raise
Establishment Clause claims, since they had suffered a “direct economic injury”
under the challenged law. Id. at 430. McGowan and Two Guys underscore that the
question is whether the challenged action injures the plaintiff, not whether it
directly regulates him or her. Accord IRAP, 857 F.3d at 585 (rejecting government
argument that EO-2 was “not directly targeted at plaintiffs”).
The district court correctly focused on that question and concluded that
plaintiffs who would suffer a particularized injury as a consequence of the
government’s constitutional violation could sue to enforce their rights. See J.A.
1023-24. The district court also correctly rejected the government’s attempt to
analogize this case to Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464 (1982), in which the plaintiffs
21

were complete strangers to the challenged conduct, “abstractly disagreeing” with a
transfer of property far away that they had never seen, who claimed no injury of
isolation, exclusion, or condemnation, id. at 485. J.A. 1024; accord IRAP, 857
F.3d at 585; see also id. at 585 n.11 (explaining why In re Navy Chaplaincy, 534
F.3d 756 (D.C. Cir. 2008), is inapposite); id. at 585 n.10 (finding that “[p]laintiffs’
injuries are . . . consistent with the injuries that other courts have recognized in
Establishment Clause cases that do not involve religious displays or prayer”)
(citing Awad v. Ziriax, 670 F.3d 1111, 1122 (10th Cir. 2012) and Catholic League
for Religious & Civil Rights v. City & County of San Francisco, 624 F.3d 1043,
1052 (9th Cir. 2010) (en banc)).
The plaintiffs’ claims are justiciable.
II.

THE PROCLAMATION VIOLATES THE IMMIGRATION AND
NATIONALITY ACT.
For hundreds of millions of people in the United States and abroad, the

Proclamation replaces Congress’s detailed visa system with a new one of the
President’s design. On an indefinite and potentially permanent basis, it bars the
issuance and use of immigrant visas by nationals of the designated countries. It
also erases numerous categories of nonimmigrant visas for those countries. These
changes read very much “like a statute,” Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 588 (1952)—just not the one Congress enacted.

22

These sweeping alterations cannot be reconciled with Congress’s admissions
scheme. The Proclamation reinstitutes a nationality-based system that Congress
outlawed decades ago. And it jettisons Congress’s individualized vetting system,
which has governed for almost a hundred years, and which Congress has
repeatedly reaffirmed, even when considering the same problems the Proclamation
purports to address.
The President’s authority under the INA does not permit him to make this
sort of unilateral revision of the immigration laws.

As the Supreme Court

explained in a prior immigration case, the Framers were “acutely conscious” of the
danger posed by subjecting national policy decisions to the “arbitrary action of one
person.” INS v. Chadha, 462 U.S. 919, 951 (1983). Once Congress enacts its own
policy choices into law, nothing “authorizes the President” to “amend, or to repeal”
its handiwork. Clinton v. City of New York, 524 U.S. 417, 438 (1998). But that is
precisely what the Proclamation does.
A.

The Proclamation Violates the INA’s Non-Discrimination
Mandate.

The district court correctly concluded that the Proclamation violates the
explicit non-discrimination mandate in 8 U.S.C. § 1152(a)(1)(A), which provides
that “no person shall . . . be discriminated against in the issuance of an immigrant
visa because of the person’s . . . nationality.” J.A. 1034-40. Congress enacted
23

§ 1152(a)(1)(A) in 1965 when it abolished the discriminatory national-origins
quota system, which had banned Asian immigration and restricted entry from
southern and eastern Europe, preventing family reunification for many immigrants
in order to maintain “the ethnic composition of the American people.” J.A. 103435 (quoting H. Rep. No. 89-745, at 9 (1965)); IRAP, 857 F.3d at 626-27 (Wynn, J.,
concurring).
The Proclamation is nothing less than a new national-origins system. It
provides that nationals of the six Muslim-majority countries may not come to the
United States “as immigrants,” indefinitely, solely because of their nationality.
Proclamation § 2(a)-(h); see id. § 1(h)(ii) (explaining that the Order
“distinguish[es] between the entry of immigrants and nonimmigrants” and bars the
use of immigrant visas). The breadth of this nationality-based ban has no post1965 parallel.
In signing the 1965 bill, President Johnson emphasized that, under the quota
system, “[f]amilies were kept apart because a husband or a wife or a child had been
born in the wrong place.” Lyndon B. Johnson, Remarks at the Signing of the
Immigration Bill, 1 Weekly Comp. Pres. Doc. 364, 365 (Oct. 3, 1965). That is
exactly what the Proclamation is designed to do. Cf. J.A. 832-33 (President Trump
calling, in September, for a “larger, tougher and more specific” ban and opposing
“CHAIN MIGRATION”). Congress has emphatically rejected that approach. See
24

IRAP, 857 F.3d at 635-38 (Thacker, J., concurring); Hawai‘i, 859 F.3d at 776-79
(same).
The government claims it is not violating Congress’s prohibition because it
is barring only “entry” using immigrant visas, not the issuance of those visas. J.A.
1036-37. First, the claim is wrong: The government has repeatedly admitted that
it implements these bans “by denying visas.” Br. for the Petitioners at 51-52,
Trump v. Int’l Refugee Assistance Project, Nos. 16-1436 & 16-1540, (U.S. filed
Aug. 10, 2017). Even the State Department, the agency that issues visas, describes
the Proclamation as a “Presidential Proclamation on Visas.” J.A. 633. Second,
banning entry to immigrant visa holders achieves the same effect as banning
issuance of the visas themselves, because a visa is meaningless if its holder is
indefinitely barred from entering the country. An indefinite immigrant-visa entry
ban therefore achieves the precise result that § 1152(a) forbids. J.A. 1038-39.
Asserting, as the government does, that § 1182(f) allows the President to “limit the
universe of individuals eligible to receive [immigrant] visas,” Br. 35, is simply
wordplay. Congress’s non-discrimination command cannot be so easily evaded.
J.A. 1039-40.8

8

The district court rightly rejected the government’s attempt, see Br. 39, to
repackage visa denials as “a change in ‘procedures’ or the ‘location’” of visa
25

The government further claims that even as Congress abolished the
discriminatory national-origins system in 1965, it intended to preserve the
President’s ability to reverse its judgment at any time and institute a nationalorigins ban.

Br. 35-36.

That makes no sense.

The legislative history the

government cites does not remotely suggest such a self-defeating intent. Rather, it
merely reflects that Congress recognized that non-nationality-based grounds of
ineligibility for visas, see 8 U.S.C. § 1182(a), would remain in effect. And in fact,
the “legislative history surrounding the 1965 Act is replete with the bold antidiscriminatory principles of the Civil Rights Era.” Olsen v. Albright, 990 F. Supp.
31, 37 (D.D.C. 1997); see Lyndon B. Johnson, Remarks at the Signing of the
Immigration Bill, 1 Weekly. Comp. Pres. Doc. 364, 365 (Oct. 3, 1965)
(immigration policy had been “twisted and . . . distorted by the harsh injustice” of
the “un-American” quota system).
Nor does § 1152(a) conflict with 8 U.S.C. § 1182(f). As explained below,
infra Part II.B.1, § 1182(f) only authorizes the President to take action consistent
with the INA, see J.A. 1048-49, including its repudiation of national origins
discrimination, as set forth in 8 U.S.C. § 1152(a)(1)(A). But if there were any
conflict, § 1152(a) would control. It was enacted after § 1182(f) and is more
processing. J.A. 1040 (quoting 8 U.S.C. § 1152(a)(1)(B)); accord Hawai‘i, 859
F.3d at 779.
26

specific, because it addresses nationality discrimination in the issuance of visas,
whereas § 1182(f) is silent as to both visa issuance in general and discrimination in
particular. See Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 & n.7
(1976); accord J.A. 1036.9
Finally, the government tries to justify the Proclamation’s nationality
discrimination by pointing to past entry suspensions against Cuban and Iranian
nationals. Br. 37. Those suspensions were never challenged under § 1152(a).10
Whatever the President’s authority to react to bilateral emergencies, § 1182(f) does
not license him to transform the congressionally-enacted visa process into a
congressionally-rejected nationality-based system. Cf. LAVAS, 45 F.3d at 473
(holding that an exception to § 1152(a) would require a justification that was “most
compelling—perhaps a national emergency”).

9

The government points to a post-1965 amendment to 8 U.S.C. § 1185(a). But “a
statute dealing with a narrow, precise, and specific subject is not submerged by a
later enacted statute covering a more generalized spectrum.” Radzanower, 426
U.S. at 153.
10

The government wrongly suggests that this Court reviewed a § 1152(a) claim in
Malek-Marzban v. INS, 653 F.2d 113, 116 (4th Cir. 1981). Br. 36. In fact, no
party in that case raised § 1152(a), and the Court did not mention it.
27

B.

The Proclamation Exceeds the President’s Delegated Authority
Under § 1182(f).

The President’s authority to alter Congress’s admission system “extends
only as far as the statutory authority conferred by Congress.” Abourezk, 785 F.2d
at 1061. Section 1182(f) does not, contrary to the government’s claims, provide
the President with limitless authority to restructure Congress’s visa system and
override congressional judgments that are embedded in the INA. Because that is
precisely what the Proclamation does, it exceeds the President’s authority.
1.

The President Cannot Override the INA.

The government claims that, as long as a proclamation contains a bare recital
that the banned entry would be detrimental to the Nation’s interests, there is no
limit to what parts of the INA the President can cancel or revise. Br. 30. That
position raises grave separation-of-powers concerns.

“Presidential claim to a

power at once so conclusive and preclusive must be scrutinized with caution, for
what is at stake is the equilibrium established by our constitutional system.”
Youngstown, 343 U.S. at 638 (Jackson, J., concurring).
The government’s position is also wrong as a matter of statutory
interpretation. Under the government’s interpretation of § 1182(f), the President
could override not only the parts of the INA implicated here, see supra (nondiscrimination mandate); infra (individualized visa system), but any others as well.
28

The President could declare that immigrant workers are detrimental to the interests
of the United States, and then ban all entry on employment-based visas
indefinitely. He could declare that U.S. interests require skills-based immigration
only, and then ban all entry on family-based visas. It would be no obstacle, on the
government’s view, that Congress had enacted a detailed employment- and familybased immigration system.

8 U.S.C. §1153(b) (“Preference allocation for

employment-based immigrants”); id. § 1153(a) (“Preference allocation for familysponsored immigrants”). The President would be free to upend the basic structure
of Congress’s visa system.
That cannot be. The Constitution assigns the legislative power, including
the power to make “[p]olicies pertaining to the entry of aliens[,] . . . exclusively to
Congress.” Arizona v. United States, 567 U.S. 387, 409 (2012) (internal quotation
marks omitted). By entrusting this power to Congress, the Framers avoided the
sort of unlimited “prerogative” over immigration that had been “exercised by
George III.” Youngstown, 343 U.S. at 641 (1952) (Jackson, J., concurring); see
The Declaration of Independence (U.S. 1776) (identifying acts of “absolute
Tyranny” by “the present King of Great Britain” that included “obstructing the
laws for Naturalization of Foreigners” and “refusing to pass [Laws] to encourage
their migrations hither”).

29

The Congress that enacted § 1182(f) was acutely aware of these separationof-powers principles: Just months earlier, the Supreme Court had reaffirmed, in an
immigration case, that a “delegation of legislative power” is “permissible” only
when “the executive judgment is limited by adequate standards.”

Carlson v.

Landon, 342 U.S. 524, 542-44 (1952). And as the Supreme Court confirmed, even
a statute dealing with “the formulation of travel controls” cannot “grant the
Executive totally unrestricted freedom of choice.” Zemel v. Rusk, 381 U.S. 1, 17
(1965). Section 1182(f) thus does not grant the President authority to reverse
Congress’s own policy decisions codified in the INA.
Instead, the President may exercise his § 1182(f) authority only in “carrying
out the congressional intent.” United States ex rel. Knauff v. Shaughnessy, 338
U.S. 537, 543-47 (1950);11 Mahler v. Eby, 264 U.S. 32, 40-41 (1924) (executive
immigration actions must conform to the “declared policy of Congress”); see
Carlson, 342 U.S. at 543 (interpreting statute to require the executive to “justify”
its use of delegated authority “by reference to the legislative scheme”); United
States v. Witkovich, 353 U.S. 194, 199-200 (1957) (holding that even apparently

11

By contrast, the Court in Knauff noted that Congress could commit to executive
discretion the decision “to exclude a given alien” during “the national emergency
of World War II.” 338 U.S. at 542-43 (emphasis added). The Court did not
address rewriting the statutory scheme.
30

“unbounded authority” must be exercised consistent with the “purpose of the
legislative scheme”).
Section 1182(f)’s text confirms that the President’s power is not limitless
and must be exercised consistent with the rest of the INA. It eschews the language
of other parts of the INA that explicitly commit immigration decisions to sole
executive “discretion.” See, e.g., 8 U.S.C. § 1182(a)(9)(B)(v), (a)(10)(C)(iii)(II);
see also 6 U.S.C. § 485(f)(1); 22 U.S.C. § 1631a(c). It applies to “class[es] of
aliens,” a term that other parts of § 1182 make clear does not encompass entire
nations. See 8 U.S.C. § 1182(a)(1)-(10) (enumerating the “classes of aliens” who
are inadmissible, none of which are connected to nationality); accord J.A. 1041. It
only authorizes the President to “suspend” entry for a limited “period,” not to
rewrite the INA permanently. See Amicus Br. of T.A. 4-7 (discussing textual
limits on § 1182(f) authority). And it requires an explicit “find[ing]” of detriment,
which of course cannot conflict with Congress’s own enacted determination about
what would serve “the interests of the United States.” 8 U.S.C. § 1182(f).
Unsurprisingly, no President has ever claimed the power under § 1182(f) to
do anything like what the Proclamation does. Instead, nearly all prior § 1182(f)
suspensions have targeted very narrow groups, reaching only a handful of
individuals who had contributed to recent crises abroad. See generally J.A. 844-48

31

(listing § 1182(f) suspensions); 9 Foreign Affairs Manual 302.14-3(B)(1)(b)(2)-(3)
(2016).12
The only two suspensions that applied to more than a small group of
individuals each addressed acute foreign policy crises that Congress had not
already addressed.

When President Carter imposed restrictions on Iranian

nationals in 1979, Exec. Order No. 12,172, 44 Fed. Reg. 67947 (Nov. 26, 1979);
Exec. Order No. 12,206, 45 Fed. Reg. 24101 (Apr. 7, 1980), Iran was holding U.S.
citizens hostage. President Reagan suspended the entry of Cuban nationals as
immigrants one month after a breakdown in bilateral negotiations. See Associated
Press, U.S., Cuba Fail to Reach Accord on Immigration, July 10, 1986;13 contra
Br. 29. And he suspended Cuban nonimmigrant entry mere months after Cuba
withdrew from a migration agreement. See Proclamation No. 5377, 50 Fed. Reg.

12

The government also invokes 8 U.S.C. § 1185(a), Br. 29-30, but does not
seriously contend that § 1185(a) provides authority beyond § 1182(f). That is a
sensible concession, because § 1185(a) does not speak to entry suspensions, it
requires that any conditions on entry be “reasonable,” and it is subject to the same
separation-of-powers principles as § 1182(f).
13

http://articles.latimes.com/1986-07-10/news/mn-22586_1_radio-marti.
32

41329 (Oct. 4, 1985).14 Like all the narrower § 1182(f) orders, these suspensions
responded to situations that Congress had not already addressed.
2.

The Proclamation Conflicts with the Basic Design of
Congress’s Admissions System.

The Proclamation upends the basic operation of Congress’s visa system. For
nearly a century, that system has relied on individual visa applicants, not
governments, to establish that they are eligible for visas and not inadmissible.
Without identifying any problems with that system, the Proclamation
fundamentally alters it by denying visas regardless of whether applicants can meet
their burden under the INA. Yet Congress has repeatedly reaffirmed its own
system in the face of the same security and information-sharing concerns cited by
the Proclamation.

Section 1182(f) does not empower the President to upend

Congress’s approach, especially with no relevant explanation.
1.

For decades, Congress’s admissions system has been divided into two

different tracks: one for entry on visas, the other for visa-less entry. The visa
system places the burdens of production and persuasion on individual visa
applicants. See Nat’l Sec. Officials Decl. ¶¶ 7-8, J.A. 898. The applicant must
produce sufficient information and documentation to establish her identity and
14

President Bush’s suspension of entry by sea in 1992 addressed only individuals
“without necessary documentation,” Exec. Order 12,807, 57 Fed. Reg. 23133 (May
24, 1992), and so created no conflict with congressional immigration admissions
policy.
33

eligibility for a visa. 8 U.S.C. § 1202(a)-(d). The applicant must then “submit to
an in person interview with a consular officer.” 8 U.S.C. § 1202(h). And the
applicant bears the ultimate burden to convince the consular officer that she is not
subject to any ground of inadmissibility, 8 U.S.C. §§ 1361, 1201(g), including
numerous terrorism and public-safety bars, 8 U.S.C. § 1182(a)(2), (a)(3)(A)-(C),
(a)(3)(F).

Individuals about whom the government does not have adequate

information are denied visas, while individuals who can supply the requisite
information are not needlessly excluded solely because of the perceived failings of
their governments.
The visa-less admissions system—the Visa Waiver Program—is different.
Since 1986, Congress has allowed certain foreign nationals to enter the country
without visas if their governments meet certain criteria. To participate, a foreign
government must issue electronic passports, 8 U.S.C. § 1187(a)(3)(B), report lost
or stolen passports, id. § 1187(c)(2)(D), share terrorism and crime information
about its nationals, id. § 1187(c)(2)(F), not provide safe haven for terrorists, id.
§ 1187(a)(12)(D)(ii), maintain control over its territory, id. § 1187(c)(5)(B)(ii), and
receive its deported nationals, id. § 1187(c)(2)(E). Reliance on governments for
identity and security information makes sense in the context of visa-less entry,
because individuals are no longer supplying that information through the visa
application process.
34

The Proclamation upends this deliberate structure. It places the burden on
governments to provide information for visa applications, even though the INA
places it on individuals. And its new requirements for visa travel are almost
exactly the same as Congress’s requirements for visa-less travel: governments
must issue electronic passports, report lost or stolen passports, Proclamation
§ 1(c)(i), share terrorism and crime information, id. § 1(c)(ii), not provide safe
haven for terrorists, maintain control over their territory, and receive deported
nationals, id. § 1(c)(iii). See J.A. 1047 (noting that the Proclamation’s criteria are
“strikingly similar” to the Visa Waiver Program’s). The conflict here is stark.
Under Congress’s scheme, nationals of countries that fail these criteria must apply
for visas; under the Proclamation’s scheme, nationals of those countries are barred
from receiving visas.
The Proclamation thus discards the individualized visa system Congress has
chosen. Even if an applicant can “establish to the satisfaction of the consular
officer that he is eligible to receive a visa” and “is not inadmissible,” 8 U.S.C.
§ 1361, he must still be denied a visa because his government fails some of the
requirements for visa-less travel. That revision is incompatible with the INA. It is
also unprecedented. Congress’s individualized visa system has been in place since

35

1924.15 In recent decades, Congress has frequently updated the requirements for
both visa and visa-less travel, but it has never conflated the two. Nor has any
President invoked § 1182(f) to alter the basic method for determining visa
eligibility.

Instead, as described above, all prior § 1182(f) suspensions have

addressed conduct or diplomatic events that Congress had not. None has been
based merely on dissatisfaction with the core structure of the INA’s applicantbased visa process.
Congress, moreover, has repeatedly and recently adhered to that basic
structure. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 137,
143 (2000) (rejecting statutory authority to deviate from recent congressional
policy choices). In the years after September 11, 2001, Congress adjusted both the
visa and visa-less schemes, but maintained the clear distinction.

See, e.g.,

Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. No.
110-53, § 711 (“enhancing program security requirements” for governments to
participate in the Visa Waiver Program); Intelligence Reform and Terrorism
Prevention Act of 2004, Pub. L. No. 108-458, §§ 5301, 5302 (imposing new “visa
15

See Immigration Act of 1924, Pub. L. No. 68-139, §§ 7, 23; Report of the
Comm. on Imm. & Naturalization, at 9, H.R. Rep. 68-176, 68 Cong., 1st Sess.
(Feb. 9, 1924) (noting that an applicant would have to produce “all available public
records concerning him kept by the government to which he owes allegiance”); id.,
Minority Report, at 11 (acknowledging that this would be a difficult burden to
meet for applicants from war-torn countries).
36

requirements” on individual applicants); Enhanced Border Security and Visa Entry
Reform Act of 2002, Pub. L. No. 107-173, § 501(b) (identifying new “information
required of [certain] visa applicant[s]”), § 303(c)(1) (imposing new requirements
on “government[s]” who “participate in the visa waiver program”), § 307(a)
(same).
Indeed, in 2015 Congress addressed the possibility that nationals of and
visitors to certain countries—including the very countries banned in EO-1, EO-2,
and now the Proclamation—might pose a security risk. Congress’s solution was to
transfer those individuals from the visa-less system to the visa system, where they
would now have to supply the necessary information themselves. See Pub. L. No.
114-113, div. O, tit. II, § 203, 129 Stat. 2242 (codified at 8 U.S.C. § 1187(a)(12));
see 161 Cong. Rec. H9050 (Dec. 8, 2015) (Rep. Lofgren) (explaining that “a visa
interview, rather than visa-free travel, would be required”). Congress pointedly
declined to make them categorically ineligible to travel to the United States. See
161 Cong. Rec. H9051 (Dec. 8, 2015) (Rep. Conyers), H9054-55 (Rep. Lee),
H9056 (Rep. McCarthy), H9057 (Rep. Schiff).

Congress thus reaffirmed its

confidence in the existing visa process.16

16

See, e.g., 161 Cong. Rec. H9051 (Dec. 8, 2015) (Rep. Miller) (describing “the
formal visa screening process” as providing “an abundance of caution”); see also
id. at H9054-55 (Rep. Lee) (emphasizing the importance of the visa interview); id.
37

That process represents a careful balancing of competing interests.

By

adhering to an individual-based regime, and eschewing nationality bans since
1965, Congress has weighed security needs against countervailing values. See,
e.g., H.R. Rep. No. 1365, H.R. 5678, 82d Cong., 2d Sess., Feb. 14, 1952
(explaining that “legislation such as” the 1952 Act required a “careful weighing of
equities, human rights,” and the “social, economic, and security interests of the
people of the United States”); 161 Cong. Rec. H9058 (Dec. 8, 2015) (Rep. Titus)
(2015 visa waiver amendment “strikes the right balance between security and
accommodation” of economic interests); id. (Rep. Quigley) (same). The President
cannot overturn that balance.
2.

Worse still, the Proclamation does not even acknowledge, must less

explain, its conflation of Congress’s visa and visa-less admission schemes. So
while it purports to identify deficient practices by foreign governments—which
might justify excluding their nationals from visa-less travel—it contains no
findings at all about its real target: the visa system. See IRAP, 857 F.3d at 609
(Keenan, J., concurring in part and concurring in the judgment) (explaining that
“an unsupported conclusion will not satisfy [§ 1182(f)’s] ‘finding’ requirement”);
Hawai‘i, 859 F.3d at 770-74 (same).
at H9057 (Rep. Schiff) (emphasizing the “in-person interview” and the visa
system’s “rigorous security screening processes”).
38

The Proclamation asserts that its unprecedented bans are “necessary to
prevent the entry” of visa applicants about whom consular officers “lack[]
sufficient information,” Proclamation § 1(h)(i), but fails to mention that existing
law already requires consular officers to deny visas when they lack sufficient
information. 8 U.S.C. § 1361; 22 C.F.R. § 40.6. It also claims that the bans are
necessary to elicit information from foreign governments, Proclamation § 1(b), (h),
but does not acknowledge that Congress’s visa scheme already accounts for the
potential lack of such information from foreign governments. In fact, Congress
recently considered the specific question of how to encourage information-sharing
by countries that do not participate in the Visa Waiver Program, and settled on a
dramatically different solution: helping those countries supply the information,
rather than banning their nationals.

See 8 U.S.C. § 1187a (providing for

“assistance to non-program countries” in meeting certain program criteria); see
also Pub. L. No. 108-458, § 7204(b) (2004) (directing the President to encourage
secure passport practices by seeking “international agreements”).
The Proclamation provides no explanation as to “why the country suddenly
needs to shift from this tested system of individualized vetting . . . to a national
origin-based ban.” Nat’l Sec. Officials Decl. ¶ 7, J.A. 898. It gives no reason to
doubt the efficacy of Congress’s applicant-based visa system. It points to no new
circumstances that Congress has not addressed. It documents no problems with
39

fraud, mistaken identity, missing information, or vetting failures of any kind. 17
These are glaring omissions for such a sweeping order. The Proclamation strikes
at the basic premise of our visa system—that individuals bear the burden to
produce documentation and establish eligibility—without tying that premise to any
actual “detriment[s] to the interests of the United States.” 8 U.S.C. § 1182(f).
The government responds that prior § 1182(f) orders contained little
explanation. Br. 31-32 & n.4. But none of those proclamations sought to rewrite
the INA’s basic approach to visa adjudication.

They were self-explanatory,

because they addressed discrete, narrow, often fast-developing problems that
Congress plainly had not addressed, like a mass influx of unauthorized migrants, or
the Iran hostage crisis.18 Whatever finding may be required in those more limited
circumstances, the President cannot fundamentally reorient Congress’s visa
system, and certainly cannot do so without explaining what was wrong with it.
17

In reality, vetting failures for nationals of the banned countries are vanishingly
rare. See J.A. 861-64 (David Bier, The Basic Premise of Trump’s Travel Ban is
Wrong, Cato Institute, Sept. 26, 2017). Moreover, in the banned countries,
consular officers have already been denying visa applications at a much higher rate
than for other countries. See Br. for Cato Inst. at 9-11, IRAP, No. 16-1436, (U.S.
filed Sept. 9, 2017) (denial rates for banned countries “79 percent higher than for
all other nationalities”).
18

Contrary to the government’s suggestion, Br. 31-32, no court addressed, much
less upheld, the Iran entry restrictions. The government’s other examples (Br. 31
n.4) not only addressed problems that the INA clearly did not—and thus required
little explanation—but also applied to a very small number of individuals.
40

*

*

*

Congress rejected national-origin quotas fifty years ago, and has long
maintained an individualized visa process.

The Proclamation—with its

nationality-based bans, indefinite duration, focus on governments instead of visa
applicants, and failure to find any problems with Congress’s applicant-based
system—vastly exceeds the President’s § 1182(f) authority and violates
§ 1152(a)’s bar on nationality discrimination.
III.

THE PROCLAMATION VIOLATES THE ESTABLISHMENT
CLAUSE.
This Court previously rejected the government’s requests “to ignore

evidence, circumscribe [the Court’s] own review, and blindly defer to executive
action.” IRAP, 857 F.3d at 594, 601. The legal principles this Court articulated
were correct, and the evidentiary record contains all it did before and more. Like
its predecessor, the Proclamation is an attempt to implement the promised Muslim
ban and overwhelmingly impacts Muslims.

Unlike its predecessor, the

Proclamation is indefinite and potentially permanent. The district court rightly
enjoined it.

41

A.

Mandel Does Not Defeat the Plaintiffs’ Establishment Clause
Claim.

As an initial matter, the government again contends that the fundamental
constraints of the Establishment Clause have no bearing here because of Mandel,
408 U.S. 753.19
Under Mandel, the government may “defeat a constitutional challenge” if
the challenged action is both “facially legitimate” and “bona fide,” but “where a
plaintiff makes ‘an affirmative showing of bad faith’ that is ‘plausibly alleged with
sufficient particularity,’ courts may ‘look behind’ the challenged action to assess
its ‘facially legitimate’ justification.” IRAP, 857 F.3d at 590-91 (quoting Din, 135
S. Ct. at 2141 (Kennedy, J., concurring in the judgment)). The district court
correctly found that the plaintiffs had made the affirmative showing of bad faith
that is required under Mandel, based on the “combined record” demonstrating how
the improper purpose behind EO-2 also motivates the Proclamation. J.A. 1056; see
also infra Part III.B.2 (addressing the involvement of executive agencies).
The government asserts that the face of the Proclamation itself demonstrates
that it is both facially legitimate and bona fide. That cannot be reconciled with
19

As the district court recognized, even though it applied Mandel there are
“persuasive reasons” not to take that approach, including that the Establishment
Clause violation is not only “a limitation on an individual’s right” but also a
structurally forbidden “public message that the Government has adopted an official
policy of favoring one religion.” J.A. 1054.
42

Mandel itself or with Justice Kennedy’s controlling concurrence in Din. See IRAP,
857 F.3d at 592 (government’s argument “reads out Mandel’s ‘bona fide’ test
altogether”). The government also contends that Din suggested only that “when
the government does identify a factual basis . . . that is the end of the analysis,” Br.
42, but that likewise cannot be squared with what Din actually says: If there is an
“an affirmative showing of bad faith,” the analysis continues. 135 S. Ct. at 2141;
see IRAP, 857 F.3d at 590.20
And the government is wrong that subsequent Supreme Court precedent
contradicts this Court’s interpretation of Mandel. Br. 41. Sessions v. MoralesSantana, 137 S. Ct. 1678, 1693-94 (2017), does not cite Mandel at all. Instead, it
cites Fiallo v. Bell.

But Fiallo—like Morales-Santana—involved an equal

protection challenge to congressional line-drawing on the face of a statute, with no
allegation of bad faith. 430 U.S. at 792-97. This Court has already rejected the
rote application of rational-basis review doctrine to the very different context of an
executive officer’s bad faith. IRAP, 857 F.3d at 589 & n.14 (explaining that the
label “rational basis” is “incomplete” in a case like this one because it “does not
properly account for Mandel’s ‘bona fide’ requirement”).

20

Cf. Morfin v. Tillerson, 851 F. 3d 710, 713 (7th Cir. 2017) (Br. 42)
(acknowledging that visa denial might be reviewable if consular officer acted in
bad faith by citing a basis he believed to be false).
43

B.

The Proclamation Suffers from the Same Constitutional Defects
as Did the Precursor Executive Orders.

In reviewing the constitutionality of EO-2, the en banc Court rejected the
government’s contention that courts should defer to presidential action without
regard to how a challenged policy came about, or how the President describes and
justifies it. The Court observed that deference to the President “must yield in
certain circumstances, lest [the Court] abdicate [its] own duties to uphold the
Constitution.” Id. at 601. And looking at all the evidence, the Court concluded
that EO-2 simply could not be “divorced from the cohesive narrative linking it to
the animus that inspired it.” Id.
Applying this same framework, the district court found that the
Proclamation, too, cannot be divorced from the policy and history that gave rise to
it. “The Proclamation does not abandon th[e] fundamental approach” of barring
entry by people from Muslim-majority countries “but rather doubles down on it.”
J.A. 1068.
1.

As a practical matter, the Proclamation almost exclusively targets

Muslims. Like the executive orders from which it springs, the Muslim-majority
countries the Proclamation bans are together approximately 95% Muslim. J.A.
234-48, 852-59. The government leans heavily on the inclusion of two nonMuslim-majority countries, but as the district court recognized, their inclusion will
44

have “little practical consequence.” J.A. 1066 (explaining that the ban will affect
only certain Venezuelan officials and “fewer than 100” North Koreans).
Nor is this vastly disproportionate effect explainable based on any objective
set of criteria. The Proclamation repeatedly deviates from the very test that it
purports to impose, banning more Muslims and exempting more non-Muslims than
its “baseline” criteria (which are really just the visa waiver criteria) would dictate.
Those criteria were themselves applied haphazardly and inconsistently. See J.A.
1283-1300 (David Bier, Travel Ban Is Based on Executive Whim, Not Objective
Criteria, Cato Institute, Oct. 9, 2017) (documenting dozens of countries that fail
various criteria but were not banned); Nat’l Sec. Officials Decl. ¶ 12, J.A. 900
(noting that “non-Muslim majority countries such as Belgium” were not banned
despite “widely-documented problems with information sharing” and nationals
who “have carried out terrorist attacks on Europe”).
An examination of the actual effects of the ban thus fatally undermines the
government’s reliance on supposedly “tailored substantive restrictions.” Br. 47.
While different nonimmigrant visas are banned for each country, the reality is that
Muslims—especially

those

seeking

to

permanently

overwhelmingly be the ones excluded from the country.

immigrate—will
Such governmental

targeting of minorities based on religion or belief, see Bd. of Educ. of Kiryas Joel

45

Village Sch. Dist. v. Grumet, 512 U.S. 687, 728 (1994) (Kennedy, J., concurring in
the judgment), violates the mandates of the Establishment Clause.
The government responds that the Proclamation is legitimate because it
“neither mentions nor draws any distinction based on religion.” Br. 43 (citing
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)). It
said the same of the prior order, which this Court invalidated. Moreover, Lukumi
makes clear that the Establishment Clause “extends beyond facial discrimination”
to “forbid[] subtle departures from neutrality and covert suppression of particular
religious beliefs.” 508 U.S. at 534 (internal quotation marks omitted); id. at 547
(striking down religious gerrymander that did not expressly identify its target); see
also Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 307 n.21 (2000); Kiryas Joel,
512 U.S. at 699. This Court was correct to reject the government’s claim that it
can sidestep the Establishment Clause by studiously avoiding the words “Islam” or
“Muslim” in the operative order. See IRAP, 857 F.3d at 597.
2.

Likewise, “the context in which this policy arose” demonstrates the

constitutional violation. Santa Fe, 530 U.S. at 315 (warning against “turn[ing] a
blind eye” to context); see also, e.g., McCreary Cty. v. ACLU of Ky., 545 U.S. 844,
866 (2005); Edwards v. Aguillard, 482 U.S. 578, 595 (1987). To be sure, “past
actions do not ‘forever taint’ present ones.” J.A. 1064 (quoting McCreary, 545
U.S. at 874). But as the district court recognized, the Proclamation is a clear
46

continuation and outgrowth of the Muslim ban policy and the executive orders on
which it is built. J.A. 1072.
The Proclamation is on its face a successor to and continuation of EO-2.
The new order implements the indefinite ban that EO-2 expressly contemplated
and that the President has long promised. And as the district court observed, the
“underlying architecture of [EO-1, EO-2] and the Proclamation is fundamentally
the same.” J.A. 1067. Each invokes 8 U.S.C. § 1182(f), and each bars nationals of
various countries from entering the United States, subject to a case-by-case waiver
procedure. As this Court previously observed, such use of nationality was the
“exact form” the President had earlier promised for his Muslim ban. IRAP, 857
F.3d at 594. Indeed, even as he reiterated his calls for a nationality-based Muslim
ban during the campaign, the President announced his plan to issue a temporary
ban followed by more permanent measures. J.A. 652.
The government argues that “the Proclamation is significantly different from
the prior entry suspensions” because of the “multi-agency review and
recommendation process.” Br. 45, 47. But nothing about that process or the
officials’ recommendations can overcome the ban’s clear purpose and effect: to
deliver the promised Muslim ban.
Notably, the government has flatly refused to disclose what was
recommended by those officials. Indeed, the government has declined even to say
47

whether there were “material inconsistencies” between the DHS report, the DHS
recommendation, and the Proclamation as actually issued. J.A. 952-53; see id.
(conceding that “it’s potentially possible that various government advisors disagree
among themselves”).

As the district court recognized here, such hidden

recommendations can offer “little to ‘assure the public that the government is not
endorsing a religious view.’” J.A. 1072-73 (quoting Felix v. City of Bloomfield,
841 F.3d 848, 863-64 (10th Cir. 2016)) (alterations omitted).
What the courts and the public do know—beyond the President’s many calls
for a Muslim ban—forecloses the government’s argument that the involvement and
unknown recommendations of agency officials cure the Establishment Clause
violation. First, EO-2 required the Secretary of Homeland Security to “submit to
the President a list of countries recommended for inclusion in a Presidential
proclamation that would prohibit the entry of appropriate categories of foreign
nationals.” EO-2 § 2(e) (emphasis added); see id. (Secretary “shall” submit list).
As the district court explained, that directive itself reveals “that the President had
decided, even before the study had been conducted, that regardless of the results,
some countries’ nationals would be subject to a travel ban.” J.A. 1068. Second,
any doubt on that score was dispelled by the President himself, who announced
publicly his plan to impose a “much tougher version” of the ban even before EO2’s review process was underway. J.A. 664, 1074. And during the review he
48

called for “the travel ban into the United States” to “be far larger, tougher and
more specific.” J.A. 832, 1074.
Third, the Proclamation’s extreme disproportionate effect is not surprising:
As the district court observed, “many of the criteria . . . used to justify the ban on
specific countries in the Proclamation[] were substantially similar to those used to
select the list of countries banned by EO-2.” J.A. 1068-69 (describing overlap
between the criteria used). Moreover, it has recently come to light that the White
House placed an official who has a record of overt anti-Muslim animus to oversee
the report and recommendation process at the Department of Homeland Security.
See Hananoki, supra note 2, at 4; Lanard, supra note 3, at 4; contra Br. 47 (relying
on “the process of review and recommendation by government officials whose
motives have never been questioned”). And fourth, there are other troubling
indications that White House pressure may well have warped the agency
recommendations.21 Thus, as with the government’s prior assertion that EO-2 was

21

See Jonathan Blitzer, How Stephen Miller Single-Handedly Got the U.S. to
Accept Fewer Refugees, The New Yorker (Oct. 13, 2017),
https://www.newyorker.com/news/news-desk/how-stephen-miller-singlehandedlygot-the-us-to-accept-fewer-refugees (indicating that the parallel agency process for
reaching a recommendation regarding the new annual cap on refugees—which
both EO-1 and EO-2 addressed—was “purely political” and dictated by White
House senior advisor Stephen Miller); cf. IRAP, 857 F.3d at 575 (discussing the
conclusions of two DHS reports that contradict the premise of all three bans, which
became public only after being leaked to the press).
49

adopted based on the recommendations of agency officials, see IRAP, 857 F.3d at
577, 598, here the mere existence of recommendations from advisors—which may
not match the ban—does not break the straight line from the President’s promises
of a Muslim ban through all three ban orders.
More fundamentally, the involvement of Executive Branch officials does not
and cannot insulate the Proclamation from the President’s record of religious
animus and promises to ban Muslims, because, as the government itself concedes,
“[a]t the end of the day, the President is the one who made the decision and the
President has adopted the rules he wants by issuing the proclamation.” J.A. 95253.
Candidate Trump promised a ban on Muslims, and never repudiated that
promise. President Trump, one week into office, issued EO-1 without consulting
any of the relevant national security agencies. After he issued EO-2 to replace it,
he repeatedly asserted that he accepted the alterations, which he described as
“watered down,” only at the urging of his lawyers, and that in his view he “should
have stayed with the original.”

J.A. 780, 791.

Now, he has issued the

Proclamation, the indefinite Muslim ban he had planned and promised all along.
3.

Nor can the government’s invocation of national security justify this

ban any more than it did EO-2. See IRAP, 857 F.3d at 597. Examining the same
criteria as the Proclamation, Congress—balancing security and other values—
50

chose not to ban entire nations from entering, but instead to require individualized
vetting. See supra Part II.B. And, like EO-2, the Proclamation does not identify
any failures in the vetting system that justify these drastic and unprecedented
measures.
The available evidence is to the contrary. As this Court noted in its decision
on the last appeal, 857 F.3d at 575, 596, the Department of Homeland Security has
found that restrictions based on nationality do not advance national security, see
J.A. 213-20, and a bipartisan group of dozens of former national security officials
has concluded that the Proclamation, like EO-2 before it, serves no legitimate
national security interests, see J.A. 892–903. This is, once again, “strong evidence
that any national security justification for [the ban] was secondary to its primary
religious purpose.” IRAP, 857 F.3d at 596.
4.

Finally, the government points to a single address by the President as

showing a more tolerant attitude toward Muslims. See Br. 52. This isolated
speech did not repudiate his previously enjoined executive orders, and does
nothing to counteract his long-standing, frequent, and ongoing denigration of
Muslims and professed intent to exclude Muslim immigrants and travelers.
Indeed, the President has time and again expressed his overriding desire to
make permanent, and harsher, his ban on Muslims. He did so in EO-2’s text. See
EO-2 § 2(e); J.A. 1068. He did so in his repeated calls for a “tougher” ban even
51

before the mandated review was completed. See J.A. 791. He did so on the very
day that he received DHS’s recommendations, tweeting: “the travel ban into the
United States should be far larger, tougher and more specific—but stupidly, that
would not be politically correct!”

J.A. 832. And he recently reaffirmed his

hostility to Islam, tweeting “a statement that . . . shooting Muslims with bullets
dipped in pig’s blood should be used to deter future terrorism.” See J.A. 1073. As
the district court found, these statements—regardless of what DHS recommended
or why—“cast the Proclamation as the inextricable re-animation of the twiceenjoined Muslim ban.” J.A. 1075.22
C.

The Proclamation Violates the Establishment Clause’s
Fundamental Command that the Government Not Target and
Disfavor People Based on Their Religion.

Because the evidence of denigration of Islam is so strong in this case, the
analysis in the Court’s prior opinion properly focused on the thread of
Establishment Clause jurisprudence addressing the purpose of government
conduct. But it is equally true that the primary effect of the Proclamation is to
22

The government again seeks to cloak itself in deference to the President’s
“predictive judgment.” Br. 51-52. But the “judgment” here has been the same
since before he was elected, and it was initially adopted and implemented without
consultation with the relevant national security agencies. In any event, the
deference to predictive judgments afforded in the cases that the government cites
concerned only case-by-case decisions about individuals, and none addressed—
much less blessed—such judgments based on religion or national origin. See
Hawai‘i, 859 F.3d at 772.
52

“burden . . . [a] selected religious denomination[]”—Islam, through restrictions on
the immigration overwhelmingly of Muslims to the United States.

Larson v.

Valente, 456 U.S. 228, 255 (1982). Indeed, the contours of the ban—barring
almost entirely Muslims, effectively exempting Venezuela, including a ban on
North Korea that will have almost no effect, and banning Somalia despite the
government’s own baseline—reflect a religious “gerrymander.” Lukumi, 508 U.S.
at 533-35, 538 (basing free-exercise analysis on Establishment Clause
jurisprudence, and striking down as impermissible religious “gerrymander” an
ordinance for which “almost the only conduct subject to it” was associated with a
particular religion).
As this Court recognized in holding EO-2 unconstitutional, “the
Establishment Clause of the First Amendment yet stands as an untiring sentinel for
the protection of one of our most cherished founding principles—that government
shall not establish any religious orthodoxy, or favor or disfavor one religion over
another.” IRAP, 857 F.3d at 572; accord Awad, 670 F.3d at 1127 (striking down
anti-Muslim state constitutional amendment).

“The clearest command of the

Establishment Clause is that one religious denomination cannot be officially
preferred over another.” Larson, 456 U.S. at 244; see also id. at 255 (“the Framers
of the First Amendment forbade” any “official denominational preference”).
Accordingly, the Supreme Court’s “Establishment Clause cases . . . have often
53

stated the principle that the First Amendment forbids an official purpose to
disapprove of a particular religion.” Lukumi, 508 U.S. at 532.

At its most

fundamental level, this means that “the Establishment Clause forbids the
government to use religion as a line-drawing criterion.” Kiryas Joel, 512 U.S. at
728 (Kennedy, J., concurring in the judgment).23
No matter which aspect of the Proclamation the Court focuses on—its
purpose, effect, or religious gerrymandered line drawing—the conclusion is the
same. The new Proclamation, like its forbears, operates both by design and in
actual effect to disadvantage Muslims like the individual plaintiffs here in the most
personal, palpable ways: It forcibly separates their families and marks them as the
object of official denigration, disfavor, and maltreatment in ways that individuals
of other faiths do not experience. That flies in the face of the Establishment
Clause. See, e.g., Cty. of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S.
573, 593-94 (1989) (“The Establishment Clause, at the very least, prohibits
23

The Establishment Clause works in tandem with the Free Exercise Clause and
equal protection to safeguard this principle of equality and equal respect under law
without regard to religion or belief. See, e.g., Kiryas Joel, 512 U.S. at 715
(O’Connor, J., concurring in the judgment) (“[T]he Free Exercise Clause, the
Establishment Clause, the Religious Test Clause, Art. VI, cl. 3, and the Equal
Protection Clause as applied to religion[] all speak with one voice on this point:
Absent the most unusual circumstances, one’s religion ought not affect one’s legal
rights or duties or benefits.”); Larson, 456 U.S. at 245. The same evidence that
establishes the Establishment Clause violation also establishes a violation of equal
protection in this case.
54

government from appearing to take a position on questions of religious belief or
from making adherence to a religion relevant in any way to a person’s standing in
the political community.”) (internal quotation marks omitted); Larson, 456 U.S. at
246.
There is no dispute that a presidential directive expressly banning Muslims
would be unconstitutional even if imposed in the name of national security. See
Oral Arg., Int’l Refugee Assistance Project v. Trump, CSPAN 30:29 (May 8,
2017), http://cs.pn/2j4kM4h. The same is true where, as here, such a ban is
effectuated by “talking territory instead of Muslim.” IRAP, 857 F.3d at 594. The
contrary holding the government seeks, would, as Justice Jackson warned in
Korematsu v. United States, “lie[] about like a loaded weapon.” 323 U.S. 214, 246
(1944) (Jackson, J., dissenting). Governmental denigration of and disregard for a
religious minority and its adherents cannot be squared with the mandates of the
Establishment Clause.
IV.

A NATIONWIDE PRELIMINARY INJUNCTION IS APPROPRIATE.
The district court issued a nationwide preliminary injunction of the

Proclamation, as it had previously issued a nationwide preliminary injunction of
EO-2. This Court and the Supreme Court rejected the government’s requests to
vacate or stay the EO-2 preliminary injunction in its entirety, or to limit it to the
specific plaintiffs or their family members. Trump v. Int’l Refugee Assistance
55

Project, 137 S. Ct. 2080, 2087 (2017) (per curiam) (leaving in effect a nationwide
injunction). The Court should reject the government’s renewed request to limit the
current injunction in the same way.
As the district court recognized, the plaintiffs would suffer “significant,
irreparable harm . . . both from the prolonged separation from family members and
the Establishment Clause violation.”

J.A. 1077 (emphasis added).

The

government asserts that “delay in entry alone does not amount to irreparable
harm,” Br. 55, but it fails to explain how “[t]he absence of a family member” could
possibly be “cured through a later payment of money damages.” J.A. 1077; see
Hawai‘i, 859 F.3d at 782. For example, Fahed Muqbil’s wife needs to enter the
United States to help Mr. Muqbil, a U.S. citizen, care for their desperately ill oneyear-old U.S. citizen daughter. J.A. 1245-46. IAAB plaintiff Jane Doe #5, a 79year-old wheelchair-bound permanent resident in poor health, may never again see
her youngest son, an Iranian national, if he is banned or delayed from receiving a
visa. J.A. 1170-71. Nor does the government dispute that Establishment Clause
injuries are irreparable; it simply rehashes its standing arguments. Br. 55-56.
On the other side of the balance, the government offers the same abstract
interest this Court previously rejected—“the notion that the President, because he
or she represents the entire nation, suffers irreparable harm whenever an executive
action is enjoined,” IRAP, 857 F.3d at 603, together with invocations of national
56

security interests—without any identification of concrete harms.

The

government’s invocation of national security is not a “silver bullet that defeats all
other asserted injuries.” Id. at 603; see also Nat’l Sec. Officials Decl. ¶¶ 13-15,
J.A. 900-01 (explaining why “Travel Ban 3.0 would undermine the national
security of the United States”).

The public interest also strongly favors a

preliminary injunction: when courts “protect the constitutional rights of the few,”
or, in this case, the many, “it inures to the benefit of all.” IRAP, 857 F.3d at 604.
Finally, a policy as sweeping and disruptive as this one will injure millions
of people, harming the plaintiffs in complex and unpredictable ways. It would be
exceptionally difficult, if not impossible, to effectively tailor an injunction to the
plaintiffs. The “systemwide impact” here warrants a “systemwide remedy.” Lewis
v. Casey, 518 U.S. 343, 359 (1996) (internal quotation marks omitted).
V.

CROSS-APPEAL: THE DISTRICT COURT ERRED IN LIMITING
THE PRELIMINARY INJUNCTION TO INDIVIDUALS WITH
BONA FIDE RELATIONSHIPS TO U.S. PERSONS OR ENTITIES.
The district court limited the scope of the preliminary injunction in light of

the temporary “equitable balance” that the Supreme Court struck in its opinion
partially staying the injunction of Section 2(c) of EO-2. IRAP, 137 S. Ct. at 2089.
But the Supreme Court’s stay opinion does not require or even support that
limitation.

57

The Supreme Court’s stay opinion considered a different question from the
one that faced the district court. The Supreme Court was deciding whether to issue
a partial, temporary stay pending appeal, id. at 2087, and did not address the merits
of the plaintiffs’ claims; by contrast, the district court was fashioning relief after
(preliminarily) resolving the merits.
Moreover, the equities involved are different from those the Supreme Court
balanced in IRAP. This time, the government’s ban is indefinite and possibly
permanent, and will injure the plaintiffs for months or even years (not just 90 days)
while the case is resolved. The plaintiffs currently before the Court are also more
likely to be injured by the exclusion of an individual who does not have the “bona
fide relationship” required by the district court’s order (for example, an extended
family member, a friend, or a professional collaborator with whom they have no
current formal relationship). Yet in the face of these even more serious harms to
the plaintiffs, the government has presented weaker claims of harm pending
appeal. The balance of harms therefore favors a comprehensive injunction.
A.

The Partial Injunction Does Not Provide Complete Relief to the
Plaintiffs.

The plaintiffs will be injured by the Proclamation’s restrictions on
noncitizens whose relationships to U.S. persons or entities—while significant—are
insufficiently formal or documented to meet the bona fide relationship standard.

58

The injunction therefore fails to provide the plaintiffs “complete relief.” Califano
v. Yamasaki, 442 U.S. 682, 702 (1979).
The Supreme Court’s equitable balance in crafting its stay standard placed
particular emphasis on the injuries that John Doe #1, Dr. Elshikh, and Hawai‘i had
alleged. IRAP, 137 S. Ct. at 2088 (“The injunctions remain in place only with
respect to parties similarly situated to Doe, Dr. Elshikh, and Hawai‘i.”); see also
Hawai‘i, 859 F.3d at 761-65 (9th Cir. 2017) (per curiam); IRAP, 857 F.3d at 58187.

The temporary but severe injuries to those plaintiffs—for example, the

exclusion of close family members—were reflected in the temporary equitable
balance the Court set. The Court did not discuss possible injuries to friends and
more distant relatives, or injuries to individuals with whom U.S. organizations had
significant but informal relationships. See J.A. 1080; Hawai‘i v. Trump, 871 F.3d
646, 653 (9th Cir. 2017), stay denied in relevant part, No. 17A275 (16-1540), 2017
WL 4014838 (U.S. Sept. 12, 2017).
The plaintiffs now before this Court have described injuries that the
narrowed injunction will not remedy, and which would persist over the ban’s
indefinite period. For example, YAMA’s members have felt the impact of the bans
through friends and acquaintances abroad, as well as through family members.
J.A. 611. Similarly, AAANY’s clients have been and will be harmed by the bans’
effects on friends and distant family members. J.A. 567, 570. IRAP has diverted
59

resources to produce materials on the Proclamation, J.A. 577, which are distributed
to clients and non-clients alike. IAAB will have many fewer participants at its
conference, including participants who would attend but are not invited as
speakers. J.A. 1154. And MESA will be harmed not only by the Proclamation’s
impact on its members, but also by its impact on nonmembers who would attend its
meeting (without necessarily signing up in advance) but will be barred from doing
so. J.A. 559-60.
Moreover, an injunction limited to noncitizens with formal relationships
fails to fully remedy the condemnation, exclusion, and isolation that the
Proclamation imposes on the plaintiffs. Plaintiffs are injured by the stigmatizing
message it sends—even when that message is sent by the exclusion of noncitizens
with whom they do not have a qualifying relationship. This harm is more severe
than EO-2’s because the Proclamation’s ban is indefinite. The lack of interim
relief could cause condemnation injuries to persist for years as this case makes its
way through the courts. See supra Part I.B (describing the condemnation harms
the Proclamation would inflict).
B.

The Government’s Harms Are Significantly Weaker Even Than
Those It Claimed in Defending EO-2.

At the same time that the Proclamation’s indefinite duration heightens the
harm to the plaintiffs, the government’s claimed harm from the injunction is even

60

weaker. The government no longer asserts, for example, that the ban is required to
make resources available while it conducts a review—an assertion on which the
Supreme Court specifically relied in granting a partial stay. IRAP, 137 S. Ct. at
2089; see also Amicus Br. of T.A. 21-26 (describing differences between the
rationales for EO-2 and the Proclamation). And the President’s decisions to allow
in the nationals of several countries that failed the review process’s baseline
evaluation (Iraq and Venezuela), as well as individuals with certain nonimmigrant
visas from other countries that fail the baseline, illustrate that individuals from
countries that do not meet the baseline criteria do not pose a categorical risk.
The government, apparently appreciating the weakness of the rationale for
EO-2, has asserted a newfound “independent” reason for the Proclamation’s ban:
that it is necessary to provide leverage with other nations and thereby “elicit
improved identify-management and information-sharing” practices. Defs’ Opp. to
Mot. for Prelim. Inj. 23-24, Dist. Ct. Dkt. No. 212 (quoting Proclamation
§ 1(h)(i)). Yet in seeking a stay from this Court, the government correctly declined
to claim that it was urgently harmed on this basis. Stay Mot. 8-9; Stay Opp. 5 n.2;
cf. Br. 54-55.
In sum, the government claims less severe harm in justifying a new ban that
more seriously injures the plaintiffs, including through the exclusion of noncitizens

61

with whom the plaintiffs have significant but non-qualifying relationships. The
balance of harms tips decisively in favor of a comprehensive injunction.
C.

A Full Injunction Is Appropriate After This Court Reaches the
Merits.

In IRAP, the Supreme Court did not address the merits; it limited its
discussion to “interim equitable relief.” 137 S. Ct. at 2087. That interim equitable
balance should not dictate what this Court does once it reaches a decision on the
merits.24 When a court determines, on the merits, that an executive action facially
violates constitutional or statutory constraints, the “result is that [the action is]
vacated—not that [its] application to the individual petitioners is proscribed.”
Nat’l Min. Ass’n v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1409 (D.C. Cir.
1998) (internal quotation marks omitted).
Such standard injunctive relief is especially appropriate here, where the
Proclamation’s entry restrictions facially violate two structural constitutional
limits. The Establishment Clause creates both an individual right and a structural
constraint on governmental power. See Engel v. Vitale, 370 U.S. 421, 431-32
(1962); McGowan, 366 U.S. at 430. And the Proclamation’s wholesale rewriting
24

At a minimum, if this Court finds for the plaintiffs on the merits, it should
remove the “bona fide relationship” limitation from the preliminary injunction
itself and then consider whether to partially stay the preliminary injunction pending
further review. In the plaintiffs’ view, because the interim balance of harms favors
a complete injunction, such a stay would not be appropriate.
62

of the INA fundamentally upsets the separation of powers. Clinton, 524 U.S. at
438 (noting that the President may not enact, amend, or repeal laws). Only a
comprehensive injunction can prevent the President from violating these structural
restraints.
Any other result would allow the President to violate the Constitution and
the INA indefinitely, so long as the targets of the illegal action are noncitizens
without formal relationships with U.S. persons.

The Supreme Court did not

remotely suggest that it intended that result. This Court should reverse the district
court’s order limiting the injunction to noncitizens who have bona fide
relationships with U.S. persons or entities.
VI.

CROSS-APPEAL:
THE
DISTRICT
COURT
ERRED
IN
SUGGESTING
THAT
IRAP
AND
HIAS
CLIENTS
CATEGORICALLY LACK BONA FIDE RELATIONSHIPS.
Even if the district court correctly limited its injunction to those without

bona fide relationships, one particular aspect of the ruling should still be corrected.
The district court held that “clients of IRAP and HIAS, and those similarly
situated, are not covered by the injunction absent a separate bona fide relationship
as defined above.” J.A. 1080. This definition excludes noncitizens from the
injunction who were protected by the previous equitable balance struck by the
Supreme Court, and should be reversed.

63

The district court’s holding in this regard appears to be grounded in a
misapprehension of the Supreme Court’s actions implementing the bona fide
relationship standard. Plaintiffs in the Hawai‘i litigation argued that refugees with
formal assurances from a refugee resettlement organization were categorically
protected by the injunctions against EO-2, and the Hawai‘i district court agreed.
The Supreme Court stayed that decision only “with respect to refugees covered by
a formal assurance.” Trump v. Hawai‘i, — S. Ct. —, 2017 WL 4014838 (Sept. 12,
2017).
The district court in this case appears to have interpreted this stay ruling to
mean that no client relationships can ever qualify under the Supreme Court’s
standard. But the government conceded before the District of Hawai‘i that some
client relationships (as opposed to refugee assurance relationships) would satisfy
the “bona fide relationship” standard. See Defs’ Opp. to Mot. to Enforce, Dkt. No.
338, Hawai‘i v. Trump, No. 17-cv-50, at 14-15 (D. Haw. filed July 11, 2017)
(stating that client relationships “require[] a case-by-case analysis”). The Hawai‘i
district court agreed, explaining that, for client relationships, “the nature of [the]
representational services varies significantly,” making it impossible to determine,
as a categorical matter, whether client relationships qualify. Hawai‘i v. Trump, —
F. Supp. 3d —, 2017 WL 2989048, at *8 (D. Haw. July 13, 2017). Neither the

64

government nor the plaintiffs appealed that decision, and the Ninth Circuit did not
address it. Hawai‘i, 871 F.3d at 653 n.4.
Under the Supreme Court’s stay order, whether or not a given client has
formed a qualifying relationship therefore depends on whether the connection is
“formal, documented, and formed in the ordinary course.” IRAP, 137 S. Ct. at
2088. While some client relationships may not meet that standard—for instance, if
they are formed solely to “secure [the client’s] entry” under the injunction, id.—
many others will. The district court erred to the extent it held that the clients of
IRAP and HIAS, and similar organizations, categorically lack a qualifying
relationship with those organizations.
CONCLUSION
The preliminary injunction should be affirmed, except as to its limitation to
persons with a bona fide relationship with an individual or entity in the United
States.
Dated: November 15, 2017

Respectfully submitted,

Karen C. Tumlin
Nicholas Espíritu
Melissa S. Keaney
Esther Sung
NATIONAL IMMIGRATION LAW
CENTER
3435 Wilshire Boulevard,
Suite 1600

/s/ Omar C. Jadwat
Omar C. Jadwat
Lee Gelernt
Hina Shamsi
Hugh Handeyside
Sarah L. Mehta
David Hausman
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
65

Los Angeles, CA 90010
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NATIONAL IMMIGRATION LAW
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66

[e-mail]
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Counsel for Plaintiffs-Appellees IRAP, et al.
Johnathan Smith
Sirine Shebaya
MUSLIM ADVOCATES
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STATE
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Mark H. Lynch
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COVINGTON & BURLING LLP
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Counsel for Plaintiffs-Appellees I.A.A.B., et al.
Charles E. Davidow
Robert A. Atkins
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Steven C. Herzog
PAUL, WEISS, RIFKIND, WHARTON
& GARRISON LLP
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67

New York, NY 10019-6064
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Michael Price
BRENNAN CENTER FOR JUSTICE
AT NYU SCHOOL OF LAW
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Tel.: [phone]
Fax: [phone]
[e-mail]

Counsel for Plaintiffs-Appellees Zakzok, et al.
^Admitted only in New York; supervised by Richard B. Katskee, a member of the
D.C. Bar

68

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-face requirements of
Federal Rule of Appellate Procedure 28.1(e)(2)(B)(ii) and the type-volume
limitations of Rule 28.1(e)(2)(B)(i). The brief contains 14,572 words, excluding
the parts of the brief described in Rule 32(f).

/s/ Omar C. Jadwat
Omar. C. Jadwat

CERTIFICATE OF SERVICE
I hereby certify that on November 15, 2017, I electronically filed the
foregoing brief with the Clerk of the Court for the United States Court of Appeals
for the Fourth Circuit by using the appellate CM/ECF system. Participants in the
case are registered CM/ECF users, and service will be accomplished by the
appellate CM/ECF system, except for the following, who will be served by first
class mail on November 15, 2017:
Hashim M. Mooppan
U.S. Department of Justice
Civil Division, Appellate Section
950 Pennsylvania Avenue, NW
Washington, DC 20530-0000
/s/ Omar C. Jadwat
Omar C. Jadwat