Al-Mowafak et al v. Trump et al
Filing
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CLASS ACTION COMPLAINT For Declaratory and Injunctive Relief; against All Defendants ( Filing fee $ 400, receipt number 0971-11127128.). Filed byJOHN DOE, Wasim Ghaleb, ACLU of Northern California, Hadil Al-Mowafak, Jewish Family & Community Services East Bay. (Attachments: # 1 Civil Cover Sheet)(Lauridsen, Robert) (Filed on 2/2/2017) Modified on 2/3/2017 (aaaS, COURT STAFF).
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JULIA HARUMI MASS, SBN 189649
MICHAEL T. RISHER, SBN 191627
WILLIAM S. FREEMAN, SBN 82002
NOVELLA Y. COLEMAN, SBN 281632
CHRISTINE P. SUN, SBN 218701
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111
Telephone:
(415) 621-2493
Facsimile:
(415) 255-8437
Email: jmass@aclunc.org
Attorneys for Plaintiffs
Hadil Al-Mowafak, Wasim Ghaleb and John
Doe, on behalf of themselves and others
similarly situated; ACLU of Northern
California; Jewish Family & Community
Services East Bay
R. ADAM LAURIDSEN, SBN 243780
EDUARDO E. SANTACANA, SBN 281668
GRACE YANG, SBN 286635
IAN KANIG, SBN 295623
CHESSIE THACHER, SBN 296767
KEKER & VAN NEST LLP
633 Battery Street
San Francisco, CA 94111
Telephone: (415) 391-5400
Facsimile: (415) 397-7188
Attorneys for Plaintiffs
Hadil Al-Mowafak, Wasim Ghaleb and John
Doe, on behalf of themselves and others
similarly situated; ACLU of Northern
California; Jewish Family & Community
Services East Bay
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[SEE NEXT PAGE FOR ADDITIONAL COUNSEL]
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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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Hadil Al-Mowafak, Wasim Ghaleb and
John Doe, on behalf of themselves and
others similarly situated; ACLU of
Northern California; Jewish Family &
Community Services East Bay,
Plaintiffs,
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Civil Case No. ______________
CLASS ACTION COMPLAINT FOR
DECLARATORY AND INJUNCTIVE
RELIEF
v.
Donald Trump, President of the United
States; U.S. Department of State; U.S.
Department of Homeland Security; U.S.
Customs and Border Protection; Rex W.
Tillerson, Secretary of State; John Kelly,
Secretary of U.S. Department of Homeland
Security; Kevin McAleenan, Acting
Commissioner of U.S. Customs and Border
Patrol; Carrie Azurin, Field Director, San
Francisco Field Office of U.S. Customs
and Border Patrol,
Defendants.
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CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF
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AHILAN T. ARULANANTHAM, SBN 237841
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF SOUTHERN CALIFORNIA
1313 West 8th Street
Los Angeles, CA 90017
Telephone:
(213) 977-5211
Facsimile:
(213) 977-5297
Email: aarulanantham@aclu-sc.org
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BARDIS VAKILI, SBN 247783
DAVID LOY, SBN 229235
ACLU FOUNDATION OF SAN DIEGO
AND IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
Telephone:
(619) 232-2121
Facsimile:
(619) 232-0036
Email: bvakili@aclusandiego.org
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ANDRE SEGURA, SBN 247681
OMAR C. JADWAT*
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, IMMIGRANTS’ RIGHTS
PROJECT
125 Broad Street, 18th Floor
New York, NY 10004
Telephone:
(212) 549-2618
Facsimile:
(212) 549-2654
Email: asegura@aclu.org
CECILLIA D. WANG, SBN 187782
JENNIFER CHANG NEWELL, SBN 233033
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, IMMIGRANTS’ RIGHTS
PROJECT
39 Drumm Street
San Francisco, CA 94111
Telephone:
(415) 343-0770
Facsimile:
(212) 395-0950
Email: cwang@aclu.org
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*Pro Hac Vice Forthcoming
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CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF
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INTRODUCTION
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1.
On December 7, 2015, then-candidate Donald J. Trump issued a statement “calling
for a total and complete shutdown of Muslims entering the United States.” Defendant Trump
remained consistent on this position throughout his campaign for the presidency.
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2.
Following his election as President, Defendant Trump implemented his plan to ban
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individuals on the basis of their religious beliefs: One week after he took office, on January 27,
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2017, Defendant Trump issued an Executive Order (the “Executive Order”) completely
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prohibiting for at least 90 days the entry or re-entry of all persons who are nationals of seven
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predominantly Muslim countries—Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen (the
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“Designated Countries”)—regardless of whether such persons hold valid visas or are lawful
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permanent residents of the United States.
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As one of Defendant Trump’s senior advisors
confirmed the next day, the Executive Order is an attempt to institute the promised “Muslim ban.”
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3.
Also on January 27, 2017, the Deputy Assistant Secretary for Visa Services at the
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Bureau of Consular Affairs of the Department of State, relying on the authority of the Executive
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Order, summarily and provisionally revoked all valid nonimmigrant and immigrant visas of nationals
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of the seven predominantly Muslim Countries, subject to exceptions not relevant here.
This
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revocation (“the Provisional Revocation Letter”) threatens countless nationals of the Designated
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Countries who are currently in the United States or who reside in the United States but were
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traveling abroad when the letter was issued.
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4.
The First Amendment does not allow the government to circumvent its protections
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for religious freedom so easily. As the Supreme Court explained in striking down a law that targeted
members of an unpopular religion, “[o]fficial action that targets religio[n] … cannot be shielded by
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mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects
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against governmental hostility which is masked, as well as overt.” Church of the Lukumi Babalu
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Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993). The Executive Order and the Provisional
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Revocation Letter violate the First Amendment because they are thinly veiled attempts to
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discriminate against Muslims by barring them from entry to the United States.
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The Immigration and Nationality Act (“INA”) ensures that the United States does not
adopt certain discriminatory immigration policies. The INA prohibits preference or discrimination
on the basis of “a person’s race, sex, nationality, place of birth or place of residence.” 8 U.S.C.
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§1152(a)(1)(A). The Executive Order and the Provisional Revocation Letter contradict this statute
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and instead would revoke visas and deny entry based on nothing but “nationality, place of birth or
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place of residence.”
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Plaintiffs include nationals of the Designated Countries who are or have been
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lawfully present in California and who, but for the Executive Order and/or the Provisional
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Revocation Letter, have the lawful right to travel to and from the United States. Plaintiffs also
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include organizations that wish to hear from and associate with people barred from entering the
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nation under the orders. Plaintiffs bring this action on behalf of themselves and other persons
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similarly situated to challenge various provisions of the Executive Order and the Provisional
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Revocation Letter that violate the First Amendment, the equal-protection and due process rights
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granted under the Fifth Amendment, the Religious Freedom Restoration Act, 42 U.S.C.
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§ 2000bb-1 et seq., the Immigration and Nationality Act, 8 U.S.C. § 1101 et. seq, and the
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Administrative Procedure Act.
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JURISDICTION AND VENUE
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This Court has jurisdiction under 5 U. S. C. § 706 and 28 U.S.C. §§ 1331 and
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1361, and has further remedial authority pursuant to the Declaratory Judgment Act, 28 U.S.C.
§ 2201 et seq.
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Venue properly lies within the Northern District of California under 28 U.S.C.
§ 1391(b) because a substantial part of the events or omissions giving rise to this action occurred
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in the District.
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INTRADISTRICT ASSIGNMENT
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Pursuant to Civil L.R. 3-2(c), this case should be assigned to the San Francisco or
Oakland Division of this Court because the action arises in San Francisco County.
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PARTIES
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Plaintiff Hadil Al-Mowafak is a Yemeni national who is currently in her freshman
year at Stanford University in Palo Alto, California. She possesses a valid F-1 student visa and
has continuously resided in the United States since September 17, 2016. As described below,
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Plaintiff Al-Mowafak plans to travel to Yemen in the summer of 2017 to visit her husband, who
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lives in Yemen. Because her husband does not have a United States visa, the only way that
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Plaintiff Al-Mowafak can see her husband is if she travels to Yemen to visit him.
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Plaintiff Wasim Ghaleb is a Yemeni national who is currently studying business
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administration at Grossmont College in San Diego, California. Plaintiff Ghaleb possesses a valid
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F-1 student visa and continuously resided in California from March 4, 2016 to January 15, 2017.
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As described below, Plaintiff Ghaleb travelled to Saudi Arabia on January 15 to visit his family,
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fully intending to return to California two weeks later for the spring semester. Instead, he is now
stuck outside the country because of the Executive Order.
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Plaintiff John Doe is an Iranian national who is currently a Ph.D. candidate at
University of California, Berkeley. He possesses a valid F-1 student visa and has continuously
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resided in the United States since September 2012. As described below, Plaintiff Doe received
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and accepted a job offer at a top Fortune 50 Company in Silicon Valley. He fears that his post-
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graduate work authorization will be affected by the Executive Order and result in the loss of this
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job opportunity. He brings suit under a pseudonym because he fears retaliation.
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Plaintiff American Civil Liberties Union of Northern California (“ACLU-NC”),
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founded in 1934 and based in San Francisco, California, is one of the largest ACLU affiliates,
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with more than 95,000 members, thousands of whom live in this District. Plaintiff ACLU-NC
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has long been dedicated to protecting the constitutional rights of its members and of all
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Californians, including their rights to religious liberty and equal protection of the laws. Plaintiff
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ACLU-NC has members of many faiths— Muslim, Christian, Jewish and others— who are
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directly affected by the Executive Order and its implementation, including nationals of the
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Designated Countries who are now unable to travel. Other ACLU-NC members are U.S. citizens
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and permanent residents who wish to hear the speech of and associate with people of all faiths
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who are now unable to travel or return to the United States because of the Executive Order. In
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addition, Plaintiff ACLU-NC has members who pay federal taxes and are opposed to the use of
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their tax dollars to implement and enforce the unlawful actions that are the subject of this lawsuit.
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Plaintiff Jewish Family & Community Services East Bay (“JFCS-EB”), founded in
1877 as the Daughters of Israel Relief Society, has a long history of working to resettle and
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provide legal and other services to refugees and immigrants from many countries, including
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people from the Designated Countries, in the San Francisco Bay Area, and serves and supports
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Alameda and Contra Costa County residents of all ages, races, and religions. Plaintiff JFCS-EB
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supports those refugees and immigrants who are already present in the area, and stands ready to
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welcome and provide services to additional refugees and immigrants who are able to gain entry to
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the United States. Defendants’ actions impede JFCS-EB’s ability to carry out its mission, as
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JFCS-EB has been forced to divert its limited resources from critical ongoing work in support of
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refugees and immigrants in order to assist individuals negatively impacted by the Executive
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Order, such as responding to new and acute inquiries and requests for assistance.
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official capacity.
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Defendant Donald J. Trump is the President of the United States. He is sued in his
Defendant U.S. Department of State is a cabinet department of the United States
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federal government that is responsible for issuing visas.
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Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet
department of the United States federal government with the primary mission of securing the
United States.
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Defendant U.S. Customs and Border Protection (“CBP”) is an agency within DHS
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with the primary mission of detecting and preventing the unlawful entry of persons and goods
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into the United States.
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Defendant Rex W. Tillerson is the Secretary of State. He is sued in his official
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capacity.
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Defendant John Kelly is the Secretary of DHS. He is sued in his official capacity.
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Defendant Kevin K. McAleenan is the Acting Commissioner of CBP. He is sued
in his official capacity.
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Defendant Carrie Azurin is the Field Director of the San Francisco Field Office of
CBP. She is sued in her official capacity.
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STATEMENT OF FACTS
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President Trump’s January 27, 2017 Executive Order
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On January 27, 2017, Defendant Trump signed the Executive Order entitled,
“Protecting the Nation from Foreign Terrorist Entry into the United States.” A copy of this
Executive Order is attached to this Complaint as Exhibit A.
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The Executive Order, citing the threat of terrorism committed by foreign nationals,
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purports to direct a variety of changes to the manner and extent to which non-citizens may seek
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and obtain admission to the United States. Among other things, the Executive Order imposes a
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120-day moratorium on the resettlement of refugees; proclaims that “that the entry of nationals of
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Syria as refugees is detrimental to the interests of the United States,” and therefore “suspend[s]”
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indefinitely their entry to the country; and drastically limits to 50,000 the number of refugees
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from all countries who may be admitted in fiscal year 2017 on the ground that admission of a
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greater number of refugees would be “detrimental to the interests of the United States.”
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Under Section 3(c) of the Executive Order, Defendant Trump proclaims “that the
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immigrant and nonimmigrant entry into the United States of aliens from countries referred to in
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section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the
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United States,” and that he is therefore “suspend[ing] entry into the United States, as immigrants
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and nonimmigrants, of such persons for 90 days from the date of this order,” with narrow
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exceptions not relevant here. This section of the Executive Order appears on its face to prevent
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all persons who are nationals of such countries from entering the United States, regardless of
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whether they are otherwise admissible.
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Under Section 1 of the Executive Order, entitled “Purpose,” the Executive Order
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states that at the time of the September 11, 2001 terrorist attacks, “State Department policy
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prevented consular officers from properly scrutinizing the visa applications of several of the 19
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foreign nationals” involved in those attacks. However, the Executive Order does not impose any
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restrictions on nationals of the countries of which the September 11 attackers were citizens.
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The same day the Executive Order issued, the Deputy Assistant Secretary for Visa
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Services at the Bureau of Consular Affairs of the Department of State, relying on the Executive
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Order, issued a letter purporting to provisionally revoke all valid nonimmigrant and immigrant visas
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of nationals of the Designated Countries, subject to exceptions not relevant here. The Provisional
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Revocation Letter was not publicized; to the contrary, it was withheld from the public until it was
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filed four days later under a “Notice of Supplemental Authority” in multiple cases challenging the
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Executive Order. The existence of the Provisional Revocation Letter broadens the chaos caused by
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the Executive Order. The federal government has apparently issued no public and legally binding
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guidance regarding the meaning or proper interpretation of the Provisional Revocation Letter. A
copy of this letter is attached to this Complaint as Exhibit B.
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The Provisional Revocation Letter also appears to expand the scope of the Executive
Order’s application: it applies on its face to persons who are present inside the United States as well
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as persons outside the United States, rather than being limited to persons seeking to enter the United
States. Under section 221(a)(1)(B) of the INA, 8 U. S. C. § 1227(a)(i)(B), any alien whose
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nonimmigrant visa has been revoked under 8 U. S. C. § 1201(i) (INA § 221(i), referenced in the
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Provisional Revocation Letter) is deportable. Immigration attorneys report that the Provisional
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Revocation Letter is now being applied to immigrants lawfully residing within the United States who
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have pending applications for asylum, lawful permanent residence and other immigration benefits.
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The Text and History of the Executive Order Show Discriminatory Intent
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The Executive Order and the Provisional Revocation Letter currently apply to
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nationals of seven countries, all of which are majority Muslim countries: Iraq, Iran, Libya,
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Somalia, Sudan, Syria, and Yemen.
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immigrant and nonimmigrant entry into the United States based on nationality, place of birth or
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The Executive Order, by its express terms, suspends
place of residence. The Provisional Revocation Letter similarly revokes “all valid nonimmigrant
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and immigrant visas of nationals” based on nationality, place of birth, or place of residence.
30.
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The Executive Order is an attempt by Defendant Trump to fulfill a campaign
promise to ban Muslims from entering the United States.
In a December 7, 2015 written
statement, “Donald J. Trump Statement on Preventing Muslim Immigration,” then-candidate
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Trump said that he was “calling for a total and complete shutdown of Muslims entering the
United States.” This statement is still displayed on the official Trump-Pence website.1
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That same day, Defendant Trump sent a tweet that stated “DONALD J. TRUMP
STATEMENT ON PREVENTING MUSLIM IMMIGRATION,” linking to the statement.2 He
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also read a slightly modified version of the statement himself in public, declaring that “Donald J.
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1
https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration [last
accessed on February 1, 2017].
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https://twitter.com/realDonaldTrump/status/673993417429524480 [last accessed on February 1, 2017].
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Trump is calling for a total and complete shutdown of Muslims entering the United States until
our country’s representatives can figure out what the hell is going on. We have no choice.”3
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On December 13, 2015, during an interview on CNN, Defendant Trump
reaffirmed his intent to institute a ban on Muslims entering the country. When asked about his
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“call … for, ‘a total and complete shutdown of Muslims entering the U.S.’” he nodded his head
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and defended his position. Later, when he was asked whether he thought the ban would be was
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constitutional, he replied, “first of all, they’re not citizens.”4
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33.
Defendant Trump repeatedly referred to a ban on Muslim immigration on the
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campaign trail. For example, in a speech on June 13, 2016, Defendant Trump stated, “I called for
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a ban after San Bernardino and was met with great scorn and anger. But now many … are saying
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that I was right to do so.”5
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In July 24, 2016 interview on Meet the Press, Defendant Trump was asked directly
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if a plan similar to the now-enacted Executive Order was a “rollback” from “[t]he Muslim Ban.”
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Defendant Trump rejected the suggestion: “I don’t think so. I actually don’t think it’s a rollback.
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In fact, you could say it is an expansion.”6
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After the election, on December 22, 2016, a reporter asked Defendant Trump
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whether his “plans to create a Muslim register or ban Muslim immigration to the United States”
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http://wpo.st/O0uY2 [last accessed on February 1, 2017].
A video of this interview is available on CNN’s Youtube Channel at
https://www.youtube.com/watch?v=JKtcdn0zAqw; the referenced comments occur during the first 15 seconds of the
interview and at 8:45 [last accessed on February 1, 2017].
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http://www.vox.com/2016/6/13/11925122/trump-orlando-foreign-policy-transcript [last accessed on February 1,
2017].
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http://www.nbcnews.com/meet-the-press/meet-press-july-24-2016-n615706 [last accessed on February 1, 2017].
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had changed. Defendant Trump responded “you’ve known my plans all along” and that he was
“100% correct” in his position.7
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36.
In the days after the Executive Order, Defendant Trump referred to the Executive
Order as a “ban.” On January 30, Defendant Trump tweeted: “If the ban were announced with a
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one week notice, the ‘bad’ would rush into our country during that week.”8 On February 1,
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Defendant Trump expressed his indifference to whether the Executive Order is characterized as a
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ban on Muslims: “Everyone is arguing whether or not it is a BAN. Call it what you want….”9
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Senior advisors to Defendant Trump have engaged in anti-Muslim rhetoric that
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provide additional support for the notion that the Executive Order was prompted by animus
toward Islam and Muslims.
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38.
In the summer of 2014, Stephen Bannon, chief strategist and senior counselor to
Defendant Trump and a reported principal architect of the Executive Order, advocated for
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separation from those of the Muslim faith, telling a meeting of the Human Dignity Institute: “If
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you look back at the long history of the Judeo-Christian West struggle against Islam, I believe
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that our forefathers kept their stance, and I think they did the right thing. I think they kept it out
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of the world, whether it was at Vienna, or Tours, or other places… It bequeathed to us the great
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institution that is the church of the West.” Bannon continued: “[T]hey were able to stave this off,
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and they were able to defeat it, and they were able to bequeath to us a church and a civilization
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that really is the flower of mankind, so I think it’s incumbent on all of us to do what I call a gut
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check, to really think about what our role is in this battle that’s before us.”10
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http://time.com/4611229/donald-trump-berlin-attack/ [last accessed February 1, 2017].
https://twitter.com/realDonaldTrump/status/826060143825666051 [last accessed on February 1, 2017].
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https://twitter.com/realDonaldTrump/status/826774668245946368 [last accessed on February 1, 2017].
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https://www.buzzfeed.com/lesterfeder/this-is-how-steve-bannon-sees-the-entire-world [last accessed February 1,
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39.
In an interview on January 28, 2017, one of Defendant Trump’s senior advisors,
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Rudolph Giuliani, left no doubt that the ban on entry from nationals of the Designated Countries
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was intended to carry out a ban on Muslims, and that the Executive Order was crafted to create a
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pretextual cover for a Muslim ban. Mr. Giuliani stated: “I’ll tell you the whole history of it. So,
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when he [Defendant Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said,
‘Put a commission together. Show me the right way to do it legally.’”11
40.
On January 29, an anonymous “senior administration official” briefed a reporter from
Breitbart.com on the intended purpose of the Executive Order: “The reality, though, is that the
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situation [of large Islamic populations] that exists today in parts of France, in parts of Germany, in
Belgium, etcetera, is not a situation we want replicated inside the United States.”12
41.
Defendant Trump and his agents have also made it clear that they intend to favor
non-Muslims nationals of the Designated Countries over Muslim nationals of those countries. In
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an interview with the Christian Broadcasting Network on January 27, 2017, Defendant Trump
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asserted that the United States had been discriminating against Christian refugees from Syria in
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favor of Muslims, claiming that “If you were a Muslim, you could come in. But if you were
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Christian, it was almost impossible.” He continued, “they were chopping off the heads of
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everybody but more so the Christians. I thought it was very, very unfair. So we are going to help
them.”13
42.
Consistent with Defendant Trump’s expressed intent to favor Christians, Section
5(e) of the Executive Order authorizes the Secretaries of the Department of State and the
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2017].
11
http://wpo.st/xzuY2 [last accessed on February 1, 2017].
12
http://www.breitbart.com/big-government/2017/01/30/trump-changes-immigration-favor-american-values/
(parenthetical in original) [last accessed on February 1, 2017].
13
http://www.breitbart.com/national-security/2017/01/27/trump-will-give-persecuted-christians-priority-refugeestatus/ [last accessed on February 1, 2017].
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1
Department of Homeland Security to admit individuals who are “member[s] of a religious
2
minority” in their countries of nationality who are “facing religious persecution.” This provision
3
directly grants Christians and other religions preference over Muslim refugees.
4
5
6
7
Facts About Plaintiff Hadil Al-Mowafak
43.
Plaintiff Hadil Al-Mowafak is a Yemeni national who is currently in her freshman
year at Stanford University in Palo Alto, California and hopes to earn her undergraduate degree in
8
9
2020. She possesses a valid F-1 multiple-entry student visa that was duly issued on July 29,
10
2016. She has continuously resided in the United States since September 17, 2016. Plaintiff Al-
11
Mowafak currently plans to travel to Yemen in the summer of 2017 to visit her husband, who
12
lives in Yemen. Because her husband does not have a United States visa, the only way that
13
14
15
16
17
Plaintiff Al-Mowafak can see her husband is if she travels to Yemen to visit him.
44.
In addition to being unable to travel to see her husband, Plaintiff Al-Mowafak
fears that if she is not permitted to re-enter the United States because of the Executive Order and
its implementation, she will be prevented from continuing her undergraduate studies. She is also
18
19
20
fearful about the effects of the Provisional Revocation Letter on her immigration status.
Facts About Plaintiff Wasim Ghaleb
21
22
45.
Plaintiff Wasim Ghaleb is a 23-year-old national of Yemen, who attends
23
Grossmont College in San Diego, California. He is majoring in business administration. He
24
hopes to complete his Associate degree at Grossmont College, transfer to a Bachelor of Arts
25
program at a university, and complete his studies in 2020.
26
27
46.
On January 15, 2016, Ghaleb traveled to Saudi Arabia to spend time with family
during a break in the academic schedule. As the holder of a valid, multiple-entry F-1 visa that
28
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1
2
3
would allow him to re-enter at any time prior to February 23, 2017, Ghaleb intended to return on
January 28, 2017, to begin the new semester on January 30.
47.
On January 28, Plaintiff Ghaleb went to the airport in Jeddah and boarded a British
4
Airways flight to London with a reservation on a connecting flight to Los Angeles, California.
5
When he arrived in London and went to the gate for his flight to Los Angeles International
6
Airport (“LAX”), he heard his name being called over a loudspeaker. When Plaintiff Ghaleb
7
approached the counter, individuals he understood to be U.S. agents of Defendant DHS informed
8
9
him that he could not continue on his flight to LAX because Defendant Trump had banned
10
citizens from seven countries—including Yemen—from traveling to the United States. Plaintiff
11
Ghaleb showed the agents his Form I-20 and valid F-1 entry visa, to demonstrate that he had
12
permission to enter the United States, but the agents told him he had no choice but to return to
13
14
Jeddah.
48.
Based on instructions from the U.S. agent who informed Plaintiff Ghaleb of the
15
16
travel ban, Plaintiff Ghaleb arranged for a return flight to Jeddah on British Airways. He spent
17
seven hours in the London airport wondering what his future would hold, worrying that he would
18
not be able to complete the semester at Grossmont College, and making calls and asking
19
questions to try to find a way to travel to the United States before returning to Jeddah. Plaintiff
20
21
22
Ghaleb has already missed several days of the new semester, but he is eager to return and intends
to complete the semester if the U.S. will honor his duly issued F-1 visa and Form I-20.
23
Facts About Plaintiff John Doe
24
25
26
49.
Plaintiff John Doe is an Iranian national who is currently a Ph.D. candidate at
University of California, Berkeley. Plaintiff Doe expects to receive his Ph.D. by May of 2017.
27
He holds a 3.9 grade point average and has published scholarly articles in prestigious scientific
28
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journals. He possesses a valid F-1 student visa and has continuously resided in the United States
2
since September 2012. Plaintiff Doe currently lives in Albany, California. He is completing his
3
fifth and final year of study in engineering.
4
50.
In December 2016, before the Executive Order was issued, Plaintiff Doe applied
5
6
for Optional Practical Training (“OPT”). OPT is post-graduation work authorization for
7
international students. After he applied for OPT, he received and accepted a job offer for a
8
product development position at a top Fortune 50 Company in Silicon Valley. He fears that his
9
OPT will be affected. If his OPT is affected by the Executive Order, then he will be unable to
10
11
12
13
14
start his job on a timely basis and may be denied the job. Plaintiff Doe is also fearful about the
effects of the Provisional Revocation Letter on his immigration status.
51.
For the reasons set forth below, the Executive Order and Provisional Revocation
Letter unlawfully deprive Plaintiffs of their rights under the United States Constitution and the
15
16
17
Immigration and Nationality Act, and are ultra vires.
Facts Common to all Members of the Plaintiff Class
18
19
20
21
22
52.
Since the Executive Order was announced on January 27, 2017, its implementation
by Defendants and their agents has been marked by chaos and confusion.
53.
For example, on at least several occasions, Defendants and their agents have
unlawfully required persons seeking entry into the United States who otherwise possessed valid
23
24
visas or lawful permanent residence status to “voluntarily” renounce their U.S. immigration status
25
by signing documents such as U.S. Customs and Immigration Services Form I-407, which is
26
entitled “Record of Abandonment of Lawful Permanent Resident Status,” under the false
27
28
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1
2
3
4
representation that, if they did not do so, they would be ineligible for entry into the United States
for a period of at least five years.
54.
As a result, individual Plaintiffs and members of the Plaintiff Class reasonably fear
that, in the event they attempt to enter or re-enter the United States, they will be denied
5
6
7
permission to do so, notwithstanding their previously established lawful presence in the United
States and the fact that they are otherwise admissible.
8
9
CLASS ACTION ALLEGATIONS
55.
Plaintiffs bring this action as a class action pursuant to Fed. R. Civ. P. 23(b) (1)
10
11
and (b) (2), on their own behalf and on behalf of all other persons who are nationals of Iran, Iraq,
12
Libya, Somalia, Sudan, Syria or Yemen (the “Designated Countries”) who currently are, or
13
recently have been, lawfully present in California and who, but for the January 27, 2017
14
Executive Order and the Provisional Revocation Letter, would be able to travel to the United
15
16
States or leave and return to the United States. This includes the following subclasses:
17
(a) Nationals of the Designated Countries who resided in California and left the United
18
States prior to issuance of the Executive Order and the Provisional Revocation Letter with
19
the intent to return, and are currently abroad; and
20
21
(b) Nationals of the Designated Countries who reside in California and were lawfully
22
present in the United States upon issuance of the Executive Order and the Provisional
23
Revocation Letter, and wish to be able, in the future, to leave the United States
24
temporarily and return to the United States.
25
26
27
56.
The Plaintiff Class is so numerous that joinder is impracticable. According to the
Annual Report of the Visa Office, in 2015, the last year for which data are available, the United
28
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1
States issued approximately 85,000 immigrant and non-immigrant visas to nationals from the
2
seven Designated Countries.14 On information and belief, a large number of such persons reside,
3
or have recently resided, in California.
4
57.
The claims of the Plaintiff Class members share common issues of law, including
5
6
but not limited to whether the Executive Order violates their associational, religious exercise and
7
due process rights under the First and Fifth Amendments, the Religious Freedom Restoration Act,
8
the Immigration and Nationality Act and the Administrative Procedure Act.
9
58.
The claims of the Plaintiff Class members share common issues of fact, including
10
11
but not limited to whether the Executive Order is being or will be enforced so as to prevent them
12
from entering the United States from abroad or from re-entering the United States should they
13
choose to leave the United States briefly, even though they would otherwise be admissible.
14
59.
The claims or defenses of the named Plaintiffs are typical of the claims or defenses
15
16
of members of the Plaintiff Class.
60.
17
18
19
The named Plaintiffs will fairly and adequately protect the interests of the Plaintiff
class. The named Plaintiffs have no interest that is now or may be potentially antagonistic to the
interests of the Plaintiff class.
The attorneys representing the named Plaintiffs include
20
21
22
experienced civil rights attorneys and are considered able practitioners in federal constitutional
litigation. These attorneys should be appointed as class counsel.
23
24
61.
Defendants have acted, have threatened to act, and will act on grounds generally
applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief appropriate
25
26
14
27
28
https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2015AnnualReport/FY15AnnualReportTableIII.pdf ;
https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2015AnnualReport/FY15AnnualReportTableXVIII.pdf [last accessed on February 1, 2017].
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1
2
3
4
to the class as a whole. The Plaintiff Class may therefore be properly certified under Fed. R. Civ.
P. 23(b) (2).
62.
Prosecution of separate actions by individual members of the Plaintiff Class would
create the risk of inconsistent or varying adjudications and would establish incompatible
5
6
7
standards of conduct for individual members of the Plaintiff Class. The Plaintiff Class may
therefore be properly certified under Fed. R. Civ. P. 23(b) (1).
8
9
CLAIMS FOR RELIEF
10
COUNT ONE
FIRST AMENDMENT – ESTABLISHMENT, FREE EXERCISE, SPEECH AND
ASSEMBLY CLAUSES
11
12
13
14
15
16
17
18
63.
Plaintiffs repeat and incorporate by reference each and every allegation contained
in the preceding paragraphs as if fully set forth herein.
64.
The First Amendment prohibits the establishment of a religion or the prohibition
of the free exercise of religion.
65.
The Executive Order and the Provisional Revocation Letter constitute an unlawful
attempt to discriminate against Muslims and to establish a preference for one religion over
19
another. References in the Executive Order and the Provisional Revocation Letter to the seven
20
21
Designated Countries are transparently a pretext for the underlying aim to establish this
22
preference.
23
66.
Plaintiffs are harmed by this preference in that Defendants seek to disadvantage
24
them, as compared to other religions, in the consideration and continuation of their status as
25
lawfully entering, or being present in the United States.
26
67.
The Executive Order and the Provisional Revocation Letter also violate the rights
27
of Plaintiffs ACLU-NC and Jewish Family & Community Services East Bay to receive
28
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1
2
information and speech from, and to associate freely with, the individual Plaintiffs and Plaintiff
class members.
COUNT TWO
RELIGIOUS FREEDOM RESTORATION ACT
3
4
5
6
7
8
9
10
68.
Plaintiffs repeat and incorporate by reference each and every allegation contained
in the preceding paragraphs as if fully set forth herein.
69.
The Executive Order and the Provisional Relocation Letter will have the effect of
imposing a special disability on the basis of religious views or religious status, by withdrawing
important immigration benefits principally from Muslims on account of their religion. In doing
so, the Executive Order and the Provisional Revocation Letter place a substantial burden on
11
12
13
14
15
Muslims’ exercise of religion in a way that is not the least restrictive means of furthering a
compelling governmental interest.
70.
Defendants’ actions therefore constitute a violation of the Religious Freedom
Restoration Act, 42 U.S.C. § 2000bb-1 et seq.
16
COUNT THREE
FIFTH AMENDMENT – EQUAL PROTECTION
17
18
19
71.
Plaintiffs repeat and incorporate by reference each and every allegation contained
in the preceding paragraphs as if fully set forth herein.
20
21
72.
The Executive Order and the Provisional Revocation Letter discriminate against
22
Plaintiffs on the basis of their country of origin, and without sufficient justification, and therefore
23
violate the equal protection component of the Due Process Clause of the Fifth Amendment.
24
73.
Additionally, the Executive Order and the Provisional Revocation Letter were
25
26
27
substantially motivated by animus toward—and have a disparate effect on—Muslims, which also
violates the equal protection component of the Due Process Clause of the Fifth Amendment.
28
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COUNT FOUR
FIFTH AMENDMENT – PROCEDURAL DUE PROCESS
1
2
3
74.
Plaintiffs repeat and incorporate by reference each and every allegation contained
in the preceding paragraphs as if fully set forth herein.
4
5
75.
Procedural due process requires that the government be constrained before it acts
6
in a way that deprives individuals of liberty interests protected under the Due Process Clause of
7
the Fifth Amendment.
8
76.
The United States government is obligated by international law and by U.S. law,
9
10
including but not limited to the INA, 8 U.S.C. §1101(a)(13)(C), to fairly process for entry or re-
11
entry into the United States those persons who are lawful permanent residents, who have
12
established a significant connection with the United States and continuously resided in the United
13
States, or who have complied with all of the legal and procedural requirements for lawful entry
14
15
16
17
18
into the United States.
77.
Defendants’ actions, as described above, have denied Plaintiffs who are currently
outside the United States the opportunity to re-enter the United States, and have denied Plaintiffs
who currently lawfully reside in the United States, the opportunity to travel outside the United
19
20
21
States, for fear that they will be denied re-entry. Such actions, taken pursuant to the Executive
Order, violate the procedural due process rights guaranteed by the Fifth Amendment.
22
COUNT FIVE
IMMIGRATION AND NATIONALITY ACT
23
24
25
26
27
78.
Plaintiffs repeat and incorporate by reference each and every allegation contained
in the preceding paragraphs as if fully set forth herein.
79.
The INA forbids discrimination in issuance of visas based on a person’s
nationality, place of birth, or place of residence. 8 U.S.C. § 1152(a)(1)(A).
28
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1
80.
Defendants’ actions as set forth above were arbitrary, capricious, discriminatory,
2
an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right,
3
power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or
4
short of statutory right; and without observance of procedure required by law, in violation of the
5
Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D).
6
COUNT SIX
ADMINISTRATIVE PROCEDURE ACT
7
8
9
10
81.
Plaintiffs repeat and incorporate by reference each and every allegation contained
in the preceding paragraphs as if fully set forth herein.
82.
The Administrative Procedure Act, 5 U. S. C. § 706 (2), places clear limits on the
11
12
13
exercise of discretion to revoke a visa under 8 U.S.C. § 1201(i). Specifically, the Secretary of
State must comply with statutory procedures for the revocation of a visa; the Secretary’s action
14
must not exceed his or her statutory authority; and the Secretary must respect the constitutional
15
rights enjoyed by visa holders.
16
17
83.
The Provisional Revocation Letter is facially improper because it was issued on a
blanket basis, without considering information related to the eligibility of any individual alien.
18
Under 22 C. F. R. § 41.122(b)(2) and 22 C. F. R. § 41.82(b), a visa can only be provisionally
19
20
21
revoked on the basis of a particularized finding that a visa holder is ineligible.
84.
The Provisional Revocation Letter is also facially defective for lack of proper
22
notice. Under 22 C. F. R. § 41.122(c) and 22 C. F. R. § 41.82(c), notice of provisional revocation
23
must be given to the visa holder where practicable, unless otherwise instructed by the Department
24
of State. There is no evidence of an instruction not to give notice, or that notice was not
25
practicable.
26
85.
Defendants’ actions as set forth above were arbitrary, capricious, discriminatory,
27
28
an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right,
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1
power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or
2
short of statutory right; and without observance of procedure required by law, in violation of the
3
Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D).
4
PRAYER FOR RELIEF
5
6
7
8
WHEREFORE, Petitioner prays that this Court grant the following relief:
1.
A determination that this action may properly be maintained as a class action
pursuant to Fed. R. Civ. P. 23(b)(1) and (b)(2);
9
10
11
2.
A declaration that the Executive Order and the Provisional Revocation Letter are
in violation of the rights of Plaintiffs and Plaintiff Class members for the reasons set forth above.
12
13
3.
An injunction that the Executive Order and the Provisional Revocation Letter may
14
not be enforced as against Plaintiffs and Plaintiff Class members in connection with their entry or
15
re-entry into the United States;
16
17
18
4.
An award to the Plaintiff Class of reasonable costs and attorney’s fees; and,
5.
Such other and further relief that this Court may deem fit and proper.
19
20
Dated: February 2, 2017
21
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA, INC.
22
23
By: s/Christine P. Sun
CHRISTINE P. SUN
24
25
Attorneys for Plaintiffs
26
27
28
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1
Dated: February 2, 2017
KEKER & VAN NEST LLP
2
3
By: s/R. Adam Lauridsen
R. ADAM LAURIDSEN
4
Attorneys for Plaintiffs
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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EXHIBIT A
Case 3:17-cv-00557-WHO Document 1 Filed 02/02/17 Page 26 of 36
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
January 27, 2017
EXECUTIVE ORDER
- - - - - - PROTECTING THE NATION FROM FOREIGN TERRORIST
ENTRY INTO THE UNITED STATES
By the authority vested in me as President by the
Constitution and laws of the United States of America, including
the Immigration and Nationality Act (INA), 8 U.S.C. 1101
et seq., and section 301 of title 3, United States Code, and to
protect the American people from terrorist attacks by foreign
nationals admitted to the United States, it is hereby ordered as
follows:
Section 1. Purpose. The visa-issuance process plays a
crucial role in detecting individuals with terrorist ties and
stopping them from entering the United States. Perhaps in no
instance was that more apparent than the terrorist attacks of
September 11, 2001, when State Department policy prevented
consular officers from properly scrutinizing the visa
applications of several of the 19 foreign nationals who went on
to murder nearly 3,000 Americans. And while the visa-issuance
process was reviewed and amended after the September 11 attacks
to better detect would-be terrorists from receiving visas, these
measures did not stop attacks by foreign nationals who were
admitted to the United States.
Numerous foreign-born individuals have been convicted or
implicated in terrorism-related crimes since September 11, 2001,
including foreign nationals who entered the United States after
receiving visitor, student, or employment visas, or who entered
through the United States refugee resettlement program.
Deteriorating conditions in certain countries due to war,
strife, disaster, and civil unrest increase the likelihood that
terrorists will use any means possible to enter the United
States. The United States must be vigilant during the visa-
Case 3:17-cv-00557-WHO Document 1 Filed 02/02/17 Page 27 of 36
issuance process to ensure that those approved for admission
do not intend to harm Americans and that they have no ties to
terrorism.
In order to protect Americans, the United States must
ensure that those admitted to this country do not bear hostile
attitudes toward it and its founding principles. The United
States cannot, and should not, admit those who do not support
the Constitution, or those who would place violent ideologies
over American law. In addition, the United States should not
admit those who engage in acts of bigotry or hatred (including
"honor" killings, other forms of violence against women, or the
persecution of those who practice religions different from their
own) or those who would oppress Americans of any race, gender,
or sexual orientation.
Sec. 2. Policy. It is the policy of the United States to
protect its citizens from foreign nationals who intend to commit
terrorist attacks in the United States; and to prevent the
admission of foreign nationals who intend to exploit United
States immigration laws for malevolent purposes.
Sec. 3. Suspension of Issuance of Visas and Other
Immigration Benefits to Nationals of Countries of Particular
Concern. (a) The Secretary of Homeland Security, in
consultation with the Secretary of State and the Director of
National Intelligence, shall immediately conduct a review to
determine the information needed from any country to adjudicate
any visa, admission, or other benefit under the INA
(adjudications) in order to determine that the individual
seeking the benefit is who the individual claims to be and is
not a security or public-safety threat.
(b) The Secretary of Homeland Security, in consultation
with the Secretary of State and the Director of National
Intelligence, shall submit to the President a report on the
results of the review described in subsection (a) of this
section, including the Secretary of Homeland Security's
determination of the information needed for adjudications and a
list of countries that do not provide adequate information,
within 30 days of the date of this order. The Secretary of
Homeland Security shall provide a copy of the report to the
Secretary of State and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on
relevant agencies during the review period described in
subsection (a) of this section, to ensure the proper review and
Case 3:17-cv-00557-WHO Document 1 Filed 02/02/17 Page 28 of 36
maximum utilization of available resources for the screening of
foreign nationals, and to ensure that adequate standards are
established to prevent infiltration by foreign terrorists or
criminals, pursuant to section 212(f) of the INA, 8 U.S.C.
1182(f), I hereby proclaim that the immigrant and nonimmigrant
entry into the United States of aliens from countries referred
to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would
be detrimental to the interests of the United States, and I
hereby suspend entry into the United States, as immigrants and
nonimmigrants, of such persons for 90 days from the date of this
order (excluding those foreign nationals traveling on diplomatic
visas, North Atlantic Treaty Organization visas, C-2 visas for
travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
(d) Immediately upon receipt of the report described in
subsection (b) of this section regarding the information needed
for adjudications, the Secretary of State shall request all
foreign governments that do not supply such information to start
providing such information regarding their nationals within
60 days of notification.
(e) After the 60-day period described in subsection (d) of
this section expires, the Secretary of Homeland Security, in
consultation with the Secretary of State, shall submit to the
President a list of countries recommended for inclusion on a
Presidential proclamation that would prohibit the entry of
foreign nationals (excluding those foreign nationals traveling
on diplomatic visas, North Atlantic Treaty Organization visas,
C-2 visas for travel to the United Nations, and G-1, G-2, G-3,
and G-4 visas) from countries that do not provide the
information requested pursuant to subsection (d) of this section
until compliance occurs.
(f) At any point after submitting the list described in
subsection (e) of this section, the Secretary of State or the
Secretary of Homeland Security may submit to the President the
names of any additional countries recommended for similar
treatment.
(g) Notwithstanding a suspension pursuant to subsection
(c) of this section or pursuant to a Presidential proclamation
described in subsection (e) of this section, the Secretaries of
State and Homeland Security may, on a case-by-case basis, and
when in the national interest, issue visas or other immigration
benefits to nationals of countries for which visas and benefits
are otherwise blocked.
Case 3:17-cv-00557-WHO Document 1 Filed 02/02/17 Page 29 of 36
(h) The Secretaries of State and Homeland Security shall
submit to the President a joint report on the progress in
implementing this order within 30 days of the date of this
order, a second report within 60 days of the date of this order,
a third report within 90 days of the date of this order, and a
fourth report within 120 days of the date of this order.
Sec. 4. Implementing Uniform Screening Standards for All
Immigration Programs. (a) The Secretary of State, the
Secretary of Homeland Security, the Director of National
Intelligence, and the Director of the Federal Bureau of
Investigation shall implement a program, as part of the
adjudication process for immigration benefits, to identify
individuals seeking to enter the United States on a fraudulent
basis with the intent to cause harm, or who are at risk of
causing harm subsequent to their admission. This program will
include the development of a uniform screening standard and
procedure, such as in-person interviews; a database of identity
documents proffered by applicants to ensure that duplicate
documents are not used by multiple applicants; amended
application forms that include questions aimed at identifying
fraudulent answers and malicious intent; a mechanism to ensure
that the applicant is who the applicant claims to be; a process
to evaluate the applicant's likelihood of becoming a positively
contributing member of society and the applicant's ability to
make contributions to the national interest; and a mechanism to
assess whether or not the applicant has the intent to commit
criminal or terrorist acts after entering the United States.
(b) The Secretary of Homeland Security, in conjunction
with the Secretary of State, the Director of National
Intelligence, and the Director of the Federal Bureau of
Investigation, shall submit to the President an initial report
on the progress of this directive within 60 days of the date of
this order, a second report within 100 days of the date of this
order, and a third report within 200 days of the date of this
order.
Sec. 5. Realignment of the U.S. Refugee Admissions Program
for Fiscal Year 2017. (a) The Secretary of State shall suspend
the U.S. Refugee Admissions Program (USRAP) for 120
days. During the 120-day period, the Secretary of State, in
conjunction with the Secretary of Homeland Security and in
consultation with the Director of National Intelligence, shall
review the USRAP application and adjudication process to
determine what additional procedures should be taken to ensure
that those approved for refugee admission do not pose a threat
Case 3:17-cv-00557-WHO Document 1 Filed 02/02/17 Page 30 of 36
to the security and welfare of the United States, and shall
implement such additional procedures. Refugee applicants who
are already in the USRAP process may be admitted upon the
initiation and completion of these revised procedures. Upon the
date that is 120 days after the date of this order, the
Secretary of State shall resume USRAP admissions only for
nationals of countries for which the Secretary of State, the
Secretary of Homeland Security, and the Director of National
Intelligence have jointly determined that such additional
procedures are adequate to ensure the security and welfare of
the United States.
(b) Upon the resumption of USRAP admissions, the Secretary
of State, in consultation with the Secretary of Homeland
Security, is further directed to make changes, to the extent
permitted by law, to prioritize refugee claims made by
individuals on the basis of religious-based persecution,
provided that the religion of the individual is a minority
religion in the individual's country of nationality. Where
necessary and appropriate, the Secretaries of State and Homeland
Security shall recommend legislation to the President that would
assist with such prioritization.
(c) Pursuant to section 212(f) of the INA, 8 U.S.C.
1182(f), I hereby proclaim that the entry of nationals of Syria
as refugees is detrimental to the interests of the United States
and thus suspend any such entry until such time as I have
determined that sufficient changes have been made to the USRAP
to ensure that admission of Syrian refugees is consistent with
the national interest.
(d) Pursuant to section 212(f) of the INA, 8 U.S.C.
1182(f), I hereby proclaim that the entry of more than 50,000
refugees in fiscal year 2017 would be detrimental to the
interests of the United States, and thus suspend any such entry
until such time as I determine that additional admissions would
be in the national interest.
(e) Notwithstanding the temporary suspension imposed
pursuant to subsection (a) of this section, the Secretaries of
State and Homeland Security may jointly determine to admit
individuals to the United States as refugees on a case-by-case
basis, in their discretion, but only so long as they determine
that the admission of such individuals as refugees is in the
national interest -- including when the person is a religious
minority in his country of nationality facing religious
persecution, when admitting the person would enable the United
Case 3:17-cv-00557-WHO Document 1 Filed 02/02/17 Page 31 of 36
States to conform its conduct to a preexisting international
agreement, or when the person is already in transit and denying
admission would cause undue hardship -- and it would not pose a
risk to the security or welfare of the United States.
(f) The Secretary of State shall submit to the President
an initial report on the progress of the directive in subsection
(b) of this section regarding prioritization of claims made by
individuals on the basis of religious-based persecution within
100 days of the date of this order and shall submit a second
report within 200 days of the date of this order.
(g) It is the policy of the executive branch that, to the
extent permitted by law and as practicable, State and local
jurisdictions be granted a role in the process of determining
the placement or settlement in their jurisdictions of aliens
eligible to be admitted to the United States as refugees. To
that end, the Secretary of Homeland Security shall examine
existing law to determine the extent to which, consistent with
applicable law, State and local jurisdictions may have greater
involvement in the process of determining the placement or
resettlement of refugees in their jurisdictions, and shall
devise a proposal to lawfully promote such involvement.
Sec. 6. Rescission of Exercise of Authority Relating to
the Terrorism Grounds of Inadmissibility. The Secretaries of
State and Homeland Security shall, in consultation with the
Attorney General, consider rescinding the exercises of authority
in section 212 of the INA, 8 U.S.C. 1182, relating to the
terrorism grounds of inadmissibility, as well as any related
implementing memoranda.
Sec. 7. Expedited Completion of the Biometric Entry-Exit
Tracking System. (a) The Secretary of Homeland Security shall
expedite the completion and implementation of a biometric entryexit tracking system for all travelers to the United States, as
recommended by the National Commission on Terrorist Attacks Upon
the United States.
(b) The Secretary of Homeland Security shall submit to the
President periodic reports on the progress of the directive
contained in subsection (a) of this section. The initial report
shall be submitted within 100 days of the date of this order, a
second report shall be submitted within 200 days of the date of
this order, and a third report shall be submitted within 365
days of the date of this order. Further, the Secretary shall
submit a report every 180 days thereafter until the system is
fully deployed and operational.
Case 3:17-cv-00557-WHO Document 1 Filed 02/02/17 Page 32 of 36
Sec. 8. Visa Interview Security. (a) The Secretary of
State shall immediately suspend the Visa Interview Waiver
Program and ensure compliance with section 222 of the INA,
8 U.S.C. 1222, which requires that all individuals seeking a
nonimmigrant visa undergo an in-person interview, subject to
specific statutory exceptions.
(b) To the extent permitted by law and subject to the
availability of appropriations, the Secretary of State shall
immediately expand the Consular Fellows Program, including by
substantially increasing the number of Fellows, lengthening or
making permanent the period of service, and making language
training at the Foreign Service Institute available to Fellows
for assignment to posts outside of their area of core linguistic
ability, to ensure that non-immigrant visa-interview wait times
are not unduly affected.
Sec. 9. Visa Validity Reciprocity. The Secretary of State
shall review all nonimmigrant visa reciprocity agreements to
ensure that they are, with respect to each visa classification,
truly reciprocal insofar as practicable with respect to validity
period and fees, as required by sections 221(c) and 281 of the
INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a
country does not treat United States nationals seeking
nonimmigrant visas in a reciprocal manner, the Secretary of
State shall adjust the visa validity period, fee schedule, or
other treatment to match the treatment of United States
nationals by the foreign country, to the extent practicable.
Sec. 10. Transparency and Data Collection. (a) To
be more transparent with the American people, and to more
effectively implement policies and practices that serve the
national interest, the Secretary of Homeland Security, in
consultation with the Attorney General, shall, consistent with
applicable law and national security, collect and make publicly
available within 180 days, and every 180 days thereafter:
(i)
information regarding the number of foreign
nationals in the United States who have been charged
with terrorism-related offenses while in the United
States; convicted of terrorism-related offenses while
in the United States; or removed from the United
States based on terrorism-related activity,
affiliation, or material support to a terrorismrelated organization, or any other national security
Case 3:17-cv-00557-WHO Document 1 Filed 02/02/17 Page 33 of 36
reasons since the date of this order or the last
reporting period, whichever is later;
(ii)
information regarding the number of foreign
nationals in the United States who have been
radicalized after entry into the United States and
engaged in terrorism-related acts, or who have
provided material support to terrorism-related
organizations in countries that pose a threat to the
United States, since the date of this order or the
last reporting period, whichever is later; and
(iii) information regarding the number and types of
acts of gender-based violence against women, including
honor killings, in the United States by foreign
nationals, since the date of this order or the last
reporting period, whichever is later; and
(iv)
any other information relevant to public safety
and security as determined by the Secretary of
Homeland Security and the Attorney General, including
information on the immigration status of foreign
nationals charged with major offenses.
(b) The Secretary of State shall, within one year of the
date of this order, provide a report on the estimated long-term
costs of the USRAP at the Federal, State, and local levels.
Sec. 11. General Provisions. (a) Nothing in this order
shall be construed to impair or otherwise affect:
(i)
the authority granted by law to an executive
department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of
Management and Budget relating to budgetary,
administrative, or legislative proposals.
(b) This order shall be implemented consistent with
applicable law and subject to the availability of
appropriations.
(c) This order is not intended to, and does not, create
any right or benefit, substantive or procedural, enforceable at
law or in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees, or
agents, or any other person.
Case 3:17-cv-00557-WHO Document 1 Filed 02/02/17 Page 34 of 36
DONALD J. TRUMP
THE WHITE HOUSE,
January 27, 2017.
# # #
Case 3:17-cv-00557-WHO Document 1 Filed 02/02/17 Page 35 of 36
EXHIBIT B
Case 3:17-cv-00557-WHO Document 1 Filed 02/02/17 Page 36 of 36
United States Department of State
Deputy Assistant Secretcuy
for Visa Services
Washington, D. C. 20520
January 27, 2017
Upon request of the U.S. Department of Homeland Security and pursuant to
sections 212(±) and 221(i) of the Immigration and Nationality Act and 22 CFR
41.122 and 42.82, and in implementation of'section 3(c) of the Executive Order on
Protecting the Nation from Terrorist Attacks by Foreign Nationals, I hereby
provisionally revoke all valid nonimmigrant and immigrant visas of nationals of
Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to the exceptions
discussed below.
'
The revocation does not apply to visas in the following nonimmigrant
classifications: A-1, A-2, G-1, G-2, G-3, G-4, NATO, C-2, or certain diplomatic
visas.
The revocation also does not apply to any visa exempted on the basis of a
determination made by the Secretaries of State and Homeland Secmity pursuant to
section 3(g) of the Executive Order on a case-by-case basis, and when in the
national interest.
This document is not intended to, and does not, create any right or benefit,
substantive or procedural, enforceable at law or in equity by any party against the
United States, its departments, agencies, or entities, its officers, employees, or
agents, or any other person.
~~a:
=-----Edward J. Ramotowski
Deputy Assistant Secretary
Bureau of Consular Affairs
Department of State
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