State of Hawaii v. Trump

Filing 145

MEMORANDUM in Opposition re 65 MOTION for Temporary Restraining Order filed by John F. Kelly, Rex Tillerson, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Attachments: # 1 Exhibit A: March 6, 2017 Letter from DOJ and DHS to White House, # 2 Exhibit B: Department of State Q&As, # 3 Certificate of Service)(Rosenberg, Brad)

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 1 of 68
2262

PageID #:

JEFFREY B. WALL
Acting Solicitor General
CHAD A. READLER
Acting Assistant Attorney General
ELLIOT ENOKI
Acting United States Attorney
EDRIC M. CHING
Assistant United States Attorney
JOHN R. TYLER
Assistant Branch Director
BRAD P. ROSENBERG (DC Bar No. 467513)
MICHELLE R. BENNETT (CO Bar No. 37050)
DANIEL SCHWEI (NY Bar)
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel: [phone]; Fax: [phone]
E-mail: [e-mail]
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAI’I and
ISMAIL ELSHIKH,
Plaintiffs,
v.
DONALD J. TRUMP, in his official
capacity as President of the United States;
U.S. DEPARTMENT OF HOMELAND
SECURITY; JOHN F. KELLY, in his official
capacity as Secretary of Homeland Security;
U.S. DEPARTMENT OF STATE; REX
TILLERSON, in his official capacity as
Secretary of State; and the UNITED
STATES OF AMERICA,
Defendants.

No. 1:17-cv-00050-DKWKSC
DEFENDANTS’
MEMORANDUM IN
OPPOSITION TO
PLAINTIFFS’ MOTION
FOR TEMPORARY
RESTRAINING ORDER
Hearing: March 15, 2017
9:30a.m.
Judge: Hon. Derrick K.
Watson
Related Documents:
Dkt. No. 65

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 2 of 68
2263

PageID #:

TABLE OF CONTENTS
Page
TABLE OF CONTENTS ......................................................................................... i
TABLE OF AUTHORITIES ................................................................................. iv
INTRODUCTION ...................................................................................................1
BACKGROUND .....................................................................................................3
I.

Statutory Background ..........................................................................3

II.

The Revoked Order .............................................................................6

III.

Litigation Challenging The Revoked Order........................................7

IV.

The Order ............................................................................................8
A.

The Order’s Temporary Entry Suspension ...............................8
1.
2.

B.
V.

Temporary suspension of entry by certain aliens
from six countries ...........................................................9
Case-by-case waivers ...................................................10

The Order’s Temporary Refugee Program Suspension ..........11

Dismissal Of The Ninth Circuit Appeal, And Plaintiffs’
Amended Complaint And Renewed TRO Motion............................12

STANDARD OF REVIEW ...................................................................................13
ARGUMENT .........................................................................................................14
I.

Plaintiffs’ Challenges To The Order Are Not Justiciable .................14
A.

Hawaii’s Claims Are Not Justiciable ......................................15
1.

Hawaii itself lacks any actual or imminent
concrete injury ..............................................................15

2.

Hawaii cannot rely on purported injuries to others ......18

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 3 of 68
2264

3.
B.
II.

PageID #:

Hawaii may not challenge the denial of
immigration benefits to third parties ............................20

The Claims Of Elshikh And Any Other Individual
Hawaii Seeks To Represent Are Unripe .................................21

Plaintiffs Are Not Likely To Succeed On The Merits ......................23
A.

The Order Is A Valid Exercise Of The President’s
Authority .................................................................................23
1.

The Order falls squarely within the President’s
broad authority under Sections 1182(f) and
1185(a) ..........................................................................23

2.

The other statutes plaintiffs invoke do not restrict
the President’s broad authority under Sections
1182(f) and 1185(a) ......................................................26
a.

b.

B.

Section 1152 does not prevent the
President from suspending the entry of
nationals from the designated foreign
countries .............................................................26
Section 1182(a) does not prevent the
President from suspending the entry of
nationals from the designated countries .............32

The Order Does Not Violate The Due Process Clause ...........35
1.

2.
C.

The aliens affected by the Order do not have dueprocess rights with respect to their entry into the
United States .................................................................36
Plaintiffs’ due-process claims on behalf of U.S.
citizens lack merit .........................................................37

The Order Does Not Discriminate Based On Religion ..........40
1.

The Order draws distinctions on the basis of risk
of terrorism, not religion...............................................40

ii

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 4 of 68
2265

2.

PageID #:

The Order cannot be restrained on the basis of
campaign statements or the Revoked Order .................42

III.

Plaintiffs Have Not Shown Immediate, Irreparable Harm................48

IV.

The Balance Of Equities And Public Interest Weigh Strongly
Against Emergency Relief ................................................................49

V.

The Facial, Nationwide Relief Plaintiffs Seek Is Unwarranted ........52

CONCLUSION ......................................................................................................55

iii

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 5 of 68
2266

PageID #:

TABLE OF AUTHORITIES
Cases ............................................................................................................. Page(s)
Abdullah v. INS,
184 F.3d 158 (2d Cir. 1999) ............................................................................ 29
Abourezk v. Reagan,
785 F.2d 1043 (D.C. Cir. 1986), aff’d, 484 U.S. 1 (1987) ................ 23, 31, 32
Adams v. Vance,
570 F.2d 950 (D.C. Cir. 1978) ......................................................................... 12
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592 (1982)......................................................................................... 20
Allende v. Shultz,
845 F.2d 1111 (1988) ............................................................................... 31, 32
Angov v. Lynch,
788 F.3d 893 (9th Cir. 2013) ........................................................................... 35
Aziz v. Trump,
2017 WL 580855 (E.D. Va. Feb. 13, 2017) .................................................... 52
Bertrand v. Sava,
684 F.2d 204 (2d Cir. 1982) ............................................................................ 29
Bi-Metallic Inv. Co. v. State Bd. of Equalization,
239 U.S. 441 (1915)......................................................................................... 38
Bustamante v. Mukasey,
531 F.3d 1059 (9th Cir. 2008) ......................................................................... 37
Cardenas v. United States,
826 F.3d 1164 (9th Cir. 2016) ......................................................................... 20
Caribbean Marine Servs. Co. v. Baldridge,
844 F.2d 668 (9th Cir. 1988) ........................................................................... 46
Chicago & Southern Air Lines v. Waterman S.S. Corp.,
333 U.S. 103 (1948)..........................................................................................49

iv

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 6 of 68
2267

PageID #:

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993)................................................................................... 40, 44
City of Los Angeles v. Lyons,
461 U.S. 95 (1983)............................................................................................52
Clapper v. Amnesty Int’l,
133 S. Ct. 1138 (2013) ......................................................................................15
Dep’t of the Navy v. Egan,
484 U.S. 518 (1988)..........................................................................................49
Kerry v. Din,
135 S. Ct. 2128 (2015) ......................................................................... 36, 37, 38
Edward J. DeBartolo Corp. v. Fla. Gulf
Coast Bldg. & Constr. Trades Council,
485 U.S. 568 (1988)..........................................................................................28
Fiallo v. Bell,
430 U.S. 787 (1977)................................................................................... 22, 41
Glassman v. Arlington County,
628 F.3d 140 (4th Cir. 2010) ............................................................................43
Hamdan v. Rumsfeld,
548 U.S. 557 (2006)..........................................................................................42
Hodak v. City of St. Peters,
535 F.3d 899 (8th Cir. 2008) ............................................................................19
Holder v. Humanitarian Law Project,
(HLP), 561 U.S. 1 (2010) .................................................................................49
Kowalski v. Tesmer,
543 U.S. 125 (2004)................................................................................... 18, 19
Landon v. Plasencia,
459 U.S. 21 (1982)...................................................................................... 1, 35
Larson v. Valente,
456 U.S. 228 (1982)......................................................................................... 39

v

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 7 of 68
2268

PageID #:

Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State,
45 F.3d 469 (D.C. Cir. 1995),
vacated on other grounds, 519 U.S. 1 (1996) ................................................ 29
Lewis v. Casey,
518 U.S. 343 (1996)......................................................................................... 51
Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992)............................................................................ 14, 15, 16
Kleindienst v. Mandel,
408 U.S. 753 (1972) ........................................................................... 23, 35, 41
Massachusetts v. EPA,
549 U.S. 497 (2007)......................................................................................... 20
Massachusetts v. Mellon,
262 U.S. 447 (1923)......................................................................................... 20
McCollum v. Cal. Dep’t of Corr. & Rehab.,
647 F.3d 870 (9th Cir. 2011) ........................................................................... 18
McCreary County v. ACLU,
545 U.S. 844 (2005)................................................................................. passim
Meinhold v. U.S. Dep’t of Defense,
34 F.3d 1469 (9th Cir. 1994) ........................................................................... 51
Modrovich v. Allegheny County,
385 F.3d 397 (3d Cir. 2004) ............................................................................ 43
Munaf v. Geren,
553 U.S. 674 (2008)......................................................................................... 12
Narenji v. Civiletti,
617 F.2d 745 (D.C. Cir. 1979) ......................................................................... 28
Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
551 U.S. 644 (2007)......................................................................................... 30
Nixon v. Fitzgerald,
457 U.S. 731 (1982)..........................................................................................42

vi

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 8 of 68
2269

PageID #:

Nken v. Holder,
556 U.S. 418 (2009)..........................................................................................48
Olsen v. Albright,
990 F. Supp. 31 (D.D.C. 1997) .........................................................................29
Palmer v. Thompson,
403 U.S. 217 (1971)..........................................................................................42
Phelps v. Hamilton,
59 F.3d 1058 (10th Cir. 1995) ..........................................................................43
Professionals & Patients for Customized Care v. Shalala,
56 F.3d 592 (5th Cir. 1995) ..............................................................................42
RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
132 S. Ct. 2065 (2012) ......................................................................................30
Radzanower v. Touche Ross & Co.,
426 U.S. 148 (1976)..........................................................................................30
Rajah v. Mukasey,
544 F.3d 427 (2d Cir. 2008) .............................................................................29
Reno v. American-Arab Discrimination Committee,
525 U.S. 471 (1999)..........................................................................................50
Republican Party of Minn. v. White,
536 U.S. 765 (2002)..........................................................................................43
Saavedra Bruno v. Albright,
197 F.3d (D.C. Cir. 1999) ............................................................................... 20
Sale v. Haitian Ctrs. Council, Inc.,
509 U.S. 155 (1993)......................................................................................... 28
Stormans, Inc. v. Selecky,
586 F.3d 1109 (9th Cir. 2009) ......................................................................... 51
Texas v. United States,
523 U.S. 296 (1998).................................................................................. 21, 22

vii

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 9 of 68
2270

PageID #:

United States ex rel. Kaloudis v. Shaughnessy,
180 F.2d 489 (2d Cir. 1950) ............................................................................ 29
United States v. Nixon,
418 U.S. 683 (1974)......................................................................................... 42
United States v. Salerno,
481 U.S. 739 (1987)............................................................................ 13, 26, 50
Valley Forge Christian Coll. v. Americans United for
Separation of Church and State, Inc.,
454 U.S. 464 (1982)......................................................................................... 18
Voigt v. Savell,
70 F.3d 1552 (9th Cir. 1995) ........................................................................... 19
W. Oil & Gas Ass’n v. Sonoma County,
905 F.2d 1287 (9th Cir. 1990) ......................................................................... 21
Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442 (2008)......................................................................................... 13
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) .................................................................. passim
Washington v. Trump,
2017 WL 462040 (W.D. Wash. Feb. 3, 2017)....................................................7
Weinbaum v. City of Las Cruces,
541 F.3d 1017 (10th Cir. 2008) ........................................................................43
Winter v. NRDC,
555 U.S. 7 (2008) ....................................................................................... 12, 46
Wong Wing Hang v. INS,
360 F.2d 715 (2d Cir. 1966) .............................................................................29
Yassini v. Crosland,
618 F.2d 1356 (9th Cir. 1980) ..........................................................................38

viii

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 10 of 68
2271

PageID #:

Statutes
8 U.S.C. § 1101 ................................................................................................. 3, 25
8 U.S.C. § 1152 .............................................................................................. passim
8 U.S.C. § 1157 ................................................................................................. 5, 36
8 U.S.C. § 1181 ............................................................................................. 3, 5, 26
8 U.S.C. § 1182 .............................................................................................. passim
8 U.S.C. § 1187 ....................................................................................................4, 5
8 U.S.C. § 1201 ........................................................................................................4
Pub. L. No. 65-154, § 1(a), 40 Stat. 559 (1918) ................................................... 24
Pub. L. No. 95-426, § 707(a), 92 Stat. 963 (1978) .............................................. 24
Regulations, Administrative, and Executive Materials
Blocking the Property of Certain Persons Engaging in Significant
Malicious Cyber-Enabled Activities, Exec. Order No. 13,694,
80 Fed. Reg. 18, 077 (April 1, 2015) .............................................................. 33
Blocking Property and Suspending Entry of Certain Persons
Contributing to the Situation in Venezuela, Exec. Order No. 13,
692,
80 Fed. Reg. 12, 747 (March 8, 2015) ............................................................ 34
Interdiction of Illegal Aliens, Exec. Order No. 12,807,
57 Fed. Reg. 23,133 (May 24, 1992) .............................................................. 24
Protecting the Nation From Foreign Terrorist Entry Into the United
States, Exec. Order No. 13, 780, 82 Fed. Reg. 13, 209 (March 6,
2017) ................................................................................................................. 1
Protecting the Nation From Foreign Terrorist Entry Into the United
States, Exec. Order No. 13, 769, 82 Fed. Reg. 8977 (Jan. 27, 2017) .................1

ix

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 11 of 68
2272

PageID #:

Suspension of Entry as Immigrants and Nonimmigrants of Persons
Who Are Members of the Military Junta in Sierra Leone and
Members of Their Families, Exec. Order No. 2871, 63 Fed. Reg.
2871 (Jan. 14, 1998) ....................................................................................... 34
Suspension of Cuban Immigration, Pres. Proc. No. 5517,
51 Fed. Reg. 30,470 (Aug. 22, 1986) ...................................................... 24, 27
Suspension of Entry of Aliens Subject to United Nations Security
Council Travel Bans and International Emergency Economic Powers
Act Sanctions, Pres. Proc. No. 8693, 76 Fed. Reg. 44, 751 (July 24,
2011) .................................................................................................................... 24
Suspension of Entry as Immigrants and Nonimmigrants of Persons
Who Are Members or Officials of the Sudanese Government or
Armed Forces, Pres. Proc. No. 6958, 61 Fed. Reg. 60,007 (Nov.
22, 1996) .................................................................................................. 24, 27
Suspension of Entry as Immigrants and Nonimmigrants of Persons
who Formulate or Implement the Policies of the Noriega/Solis
Palma Regime, Pres. Proc. No. 5829, 53 Fed. Reg. 22, 286 (June
10, 1988) ......................................................................................................... 27
Suspension of Entry as Immigrants and Nonimmigrants of Persons
Who Participate in Serious Human Rights and Humanitarian Law
Violations and Other Abuses, Pres. Proc. No. 8697, 76 Fed. Reg.
49, 277 (Aug. 4, 2011) ..................................................................................... 34
Suspension of Entry as Nonimmigrants of Officers and Employees of
the Nicaraguan Government, Pres. Proc. No. 5887, 53 Fed. Reg.
43, 185 (Oct. 22, 1988) ................................................................................... 27
To Suspend Entry as Immigrants or Nonimmigrants of Persons
Engaged in or Benefiting from Corruption, Pres. Proc. No. 7750,
69 Fed. Reg. 2287 (Jan. 12, 2004) ................................................................... 33
To Suspend Entry As Immigrants And Nonimmigrants of Foreign
Government Officials Responsible for Failing To Combat
Trafficking In Persons Billing code 3195-W9-P4790, Pres. Proc.
No. 8342, 74 Fed. Reg. 4093 (Jan. 21, 2009) ................................................. 24
Exec. Order No. 13,687, 80 Fed. Reg. 819 (Jan. 2, 2015) .................................. 34
x

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 12 of 68
2273

PageID #:

Exec. Order No. 13, 726 81 Fed. Reg. 23, 559 (April 19, 2016) ....................... 34
Exec. Order No. 13,712, 80 Fed. Reg. 73,633 (Nov. 22, 2015) ......................... 34
President Proclamation No. 7060, 62 Fed. Reg. 65, 987 (Dec. 12,
1997) ................................................................................................................ 34
Other Authorities
Immigration Law and Iranian Students, 4A Op. O.L.C. 133 (Nov. 11,
1979) ................................................................................................................ 28
Homeland Security, DHS Announces Further Travel Restrictions for
the Visa Wavier Program,
https://www.dhs.gov/news/2016/02/18/dhs-announces-furthertravel-restrictions-visa-waiver-program ....................................................... 5
U.S. Dep’t of State, Country Reports on Terrorism 2015,
https://www.state.gov/documents/organization/258249.pdf .............................. 4
U.S. Dep’t of State, Executive Order on Visas (Mar. 6, 2017),
https://travel.state.gov/content/travel/en/news/importantannouncement.html ........................................................................................... 10
U.S. Dep’t of State, State Sponsors of Terrorism,
https://www.state.gov/j/ct/list/c14151.html........................................................ 4
Press Release, DHS Announces Further Travel Restrictions for the
Visa Waiver Program (Feb. 18, 2016), https://
www.dhs.gov/news/2016/02/18/dhs-announces-further-travelrestrictions-visa-waiver-program .................................................................. 5
U.S. Visa Office, Report of the Visa Office of 2015,
https://travel.state.gov/content/visas/en/law-andpolicy/statistics/annual-reports/report-of-the-visa-office-2015.html ............... 26
U.S. Visa, Report of the Visa Office of 2016,
https://travel.state.gov/content/visas/en/law-andpolicy/statistics/annual-reports/report-of-the-visa-office-2016.html ............... 26

xi

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 13 of 68
2274

PageID #:

INTRODUCTION
Consistent with the Executive’s broad constitutional authority over foreign
affairs and national security, Sections 1182(f) and 1185(a) of Title 8 expressly
authorize the President to restrict or suspend entry of any class of aliens when in
the national interest. Exercising that authority, the President issued Executive
Order No. 13,780 (Order), which temporarily suspends (i) entry of certain foreign
nationals from six countries that Congress and the previous Administration
determined pose a heightened terrorism risk and (ii) processing of refugee
applications. 82 Fed. Reg. 13,209 (2017). Those suspensions apply only for a short
period, to enable the new Administration to review the Nation’s screening and
vetting procedures to ensure that they adequately detect terrorists. For the past 30
years, every President has invoked his power to protect the Nation by suspending
entry of categories of aliens. As a legal matter, the Order is no different.
The Order replaces former Executive Order No. 13,769 (Revoked Order),
82 Fed. Reg. 8977 (2017). After the Ninth Circuit declined to stay a nationwide
injunction against the Revoked Order, the President decided to issue a new Order
to address the court’s concerns rather than engaging in protracted litigation. The
Order applies only to aliens outside the United States who lack a visa—individuals
who “ha[ve] no constitutional rights regarding” their admission. Landon v.
Plasencia, 459 U.S. 21, 32 (1982). Even as to them, the Order includes a

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 14 of 68
2275

PageID #:

comprehensive waiver process to mitigate any undue hardship. It also eliminates
any preference for religious minorities. These and other changes are fatal to
plaintiffs’ request for a temporary restraining order (TRO) for three reasons.
First, plaintiffs’ claims are not justiciable. Hawaii alleges that the Order will
hinder recruitment by state universities and deter tourism, but its own submissions
demonstrate that those assertions are mere speculation. Hawaii alternatively tries
to assert third-party standing on behalf of individuals affected by the Order, but
Hawaii has no close relationship with those individuals—who can in any event seek
to bring their own as-applied claims. The problem with plaintiff Ismail Elshikh’s
claim here is that it is not ripe: his mother-in-law has not been denied a waiver.
Until that happens, neither she nor Elshikh has suffered any injury fairly traceable
to the Order.
Second, the changes to the Order foreclose plaintiffs’ claims on the
merits. Plaintiffs implicitly recognize as much, because their constitutional
challenges now take a back seat to a statutory claim that the Ninth Circuit did not
previously address. Two separate provisions of the immigration laws, however,
grant the President broad authority plainly encompassing the Order’s temporary
entry and refugee suspensions. Accordingly, no court has adopted plaintiffs’
statutory arguments. As a constitutional matter, the Order does not cover any aliens
with due-process rights with respect to entry. To the extent U.S. citizens like
2

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 15 of 68
2276

PageID #:

Elshikh have minimal due-process rights regarding entry of others, the Order
accords more than ample process through the waiver system. Nor does it
discriminate on the basis of religion. Its text and purpose are explicitly religionneutral, and it no longer grants any preference for victims of religious persecution.
Third, at a minimum, the changes to the Order eliminate any occasion to
consider emergency relief. Its narrowed scope and expanded waiver process fully
address the possible scenarios that concerned the Ninth Circuit. Aliens subject to
the Order face no injury unless and until they are denied a waiver. The proper
course if a waiver is denied is to attempt to bring as-applied challenges then on a
more developed record. There is no basis to restrain the Order in the interim, and
certainly no basis to restrain it nationwide. For these reasons, plaintiffs’ TRO
request should be denied.
BACKGROUND
I.

STATUTORY BACKGROUND
The Immigration and Nationality Act, 8 U.S.C. §§1101 et seq., governs

admission of aliens into the United States.

Admission (aside from lawful

permanent residents) generally requires a valid immigrant or nonimmigrant visa
(or another entry document, such as a refugee travel document). Id. §§1181,
1182(a)(7)(A)(i), (B)(i)(II), 1203.

The process of obtaining a visa typically

3

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 16 of 68
2277

PageID #:

includes an in-person interview and results in a decision by a State Department
consular officer. Id. §§1201(a)(1), 1202, 1204. Eligibility for a visa depends on
many factors, including nationality. See, e.g., id. §§1184(e), 1735. While a visa
may be necessary for admission, it does not guarantee admission if the alien, upon
arriving, is found “inadmissible.” Id. §§1201(h), 1225(a).
Congress has established a Visa Waiver Program that enables nationals of
participating countries to seek temporary admission for tourism or certain business
purposes without a visa. 8 U.S.C. §§1182(a)(7)(B)(iv), 1187. In 2015, however,
Congress excluded from the Program individuals with connections to specific
countries. Id. §1187(a)(12). Congress itself specifically excluded nationals of
countries participating in the Program who are dual nationals of or had recently
visited Iraq or Syria, where “[t]he Islamic State of Iraq and the Levant (ISIL) …
maintain[s] a formidable force,” and nationals of and recent visitors to countries
designated by the Secretary of State as state sponsors of terrorism (currently Iran,
Sudan, and Syria).1 8 U.S.C. §1187(a)(12)(A)(i)-(ii). Congress also authorized the
Department of Homeland Security (DHS) to designate additional countries of
concern, considering whether a country is a “safe haven for terrorists,” “whether a

1

U.S. Dep’t of State, Country Reports on Terrorism 6 (2016), https://
www.state.gov/documents/organization/258249.pdf.
4

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 17 of 68
2278

PageID #:

foreign terrorist organization has a significant presence” in the country, and
“whether the presence of an alien in the country … increases the likelihood that the
alien is a credible threat to” U.S. national security, id. §1187(a)(12)(D)(i)-(ii), and
in February 2016 DHS excluded recent visitors to Libya, Somalia, and Yemen,
noting that the designation was “indicative of the Department’s continued focus on
the threat of foreign fighters.”2 In short, Congress and the prior Administration
determined that the conditions in these seven countries warranted individualized
review in admitting aliens into our Nation’s borders.
Congress separately has established the U.S. Refugee Admissions Program
(Refugee Program), which allows aliens who have been (or have a well-founded
fear of being) persecuted on account of race, religion, nationality, or other specified
grounds to seek admission. 8 U.S.C. §1101(a)(42); see id. §1157. Refugees are
screened for eligibility and admissibility abroad; if approved, they may be admitted
without a visa. Id. §§1157(c)(1), 1181(c). Congress expressly authorized the
President to determine the maximum number of refugees admitted each fiscal year.
Id. §1157(a)(2)-(3).

2

https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travelrestrictions-visa-waiver-program.
5

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 18 of 68
2279

PageID #:

Critically, although Congress created these various avenues to admission, it
accorded the Executive broad discretion to restrict or suspend admission of aliens.
First, Section 1182(f) provides:
Whenever the President finds that the entry of any aliens or of
any class of aliens into the United States would be detrimental to the
interests of the United States, he may by proclamation, and for such
period as he shall deem necessary, suspend the entry of all aliens or any
class of aliens as immigrants or nonimmigrants, or impose on the entry
of aliens any restrictions he may deem to be appropriate.
Second, Section 1185(a)(1) makes it unlawful for an alien to enter or attempt to
enter the country “except under such reasonable rules, regulations, and orders, and
subject to such limitations and exceptions as the President may prescribe.”
II.

THE REVOKED ORDER
On January 27, 2017, the President issued the Revoked Order. It directed

the Secretaries of Homeland Security and State to assess current screening
procedures to determine whether they were sufficient to detect individuals who
were seeking to enter this country to do it harm. Revoked Order §3(a)-(b). While
that review was ongoing, the Revoked Order suspended for 90 days entry of foreign
nationals of the seven countries already identified as posing heightened terrorismrelated concerns in the context of the Visa Waiver Program. Id. §3(c). It authorized
the Secretaries, however, to make case-by-case exceptions to the suspension. Id.
§3(g).
6

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 19 of 68
2280

PageID #:

The Revoked Order similarly directed a review of the Refugee Program, and,
pending that review, suspended entry under the Program for 120 days, subject to
case-by-case waivers. Revoked Order §5(a), (c). It also suspended admission of
Syrian refugees until the President determined “that sufficient changes have been
made to the [Refugee Program] to ensure that admission of Syrian refugees is
consistent with the national interest.” Id. §5(c). Finally, it sought to assist victims
of religious persecution by directing agencies to prioritize refugee claims premised
on religious-based persecution, provided the religion at issue was “a minority
religion in the individual’s country of nationality.” Id. §5(b).
III.

LITIGATION CHALLENGING THE REVOKED ORDER
The Revoked Order was challenged in multiple courts.

The State of

Washington filed suit in Seattle, seeking a TRO against Sections 3(c), 5(a)-(c), and
5(e). Washington v. Trump, No. 17-41 (W.D. Wash.). On February 3, 2017, the
district court enjoined those provisions nationwide. 2007 WL 462040 (W.D. Wash.
Feb. 3, 2017). On February 9, after accelerated briefing and argument, the Ninth
Circuit declined to stay the injunction pending appeal. Washington v. Trump, 847
F.3d 1151, 1156 (9th Cir. 2017) (per curiam). Although acknowledging that the
injunction may have been “overbroad,” the court declined to narrow it, concluding
that “[t]he political branches are far better equipped” to do so. Id. at 1166-67.

7

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 20 of 68
2281

IV.

PageID #:

THE ORDER
Responding to the Ninth Circuit’s invitation, on March 6, 2017—at the joint

urging of the Attorney General and Secretary of Homeland Security3—the
President issued the Order. The Order takes effect March 16, revokes the Revoked
Order, and replaces it with substantially revised provisions that address the Ninth
Circuit’s concerns.
A.

The Order’s Temporary Entry Suspension

The Order’s central, explicit purpose is to enable the President and his
Administration to assess whether current screening and vetting procedures are
sufficient to detect terrorists seeking to infiltrate the Nation.

Order §1(f). To

facilitate that important review, the President ordered a temporary, 90-day pause
on entry of certain foreign nationals from six nations previously “identified as
presenting heightened concerns about terrorism and travel to the United States” by
Congress or the prior Administration: Iran, Libya, Somalia, Sudan, Syria, and
Yemen. Id. §1(a), (d)-(f).

3

Joint Ltr. to President (Mar. 6, 2017), https://www.dhs.gov/sites/default/
files/publications/17_0306_S1_DHS-DOJ-POTUS-letter_0.pdf (Ex. A).
8

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 21 of 68
2282

1.

PageID #:

Temporary suspension of entry by certain aliens from six
countries

As the Order explains, each of those countries “is a state sponsor of
terrorism, has been significantly compromised by terrorist organizations, or
contains active conflict zones,” which is why Congress and the Secretary of
Homeland Security previously designated them “countries of concern.” Order
§1(d). The Order details the circumstances of each country that give rise to
“heightened risk[s]” that terrorists from those countries would attempt to enter the
United States and that those countries’ governments may lack the “willingness or
ability to share or validate important information about individuals seeking to travel
to the United States” to screen them properly. Order §1(d)-(e).
To that end, the Order “suspend[s] for 90 days” the “entry into the United
States of nationals of those six countries.” Order §2(c). In response to the Ninth
Circuit’s ruling, however, the Order clarifies that the suspension applies only to
aliens who: (1) are outside the United States on the Order’s effective date, (2) do
not have a valid visa on that date, and (3) did not have a valid visa on the effective
date of the Revoked Order. Order §3(a). It expressly excludes other categories of
aliens that concerned the Ninth Circuit, including (among others) any lawful
permanent resident; any foreign national admitted to or paroled into the United
States; any individual with a document other than a visa permitting travel to the
9

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 22 of 68
2283

PageID #:

United States; and any foreign national granted asylum, any refugee already
admitted to the United States, or any individual granted certain protections from
removal. See id. §3(b). Consequently, an alien who is in the United States on the
Order’s effective date (for example, on a single-entry visa, Mot. 40 n.1 (ECF No.
65)) and seeks to leave will not be subject to the Order’s temporary suspension
upon return; instead, he will be subject to pre-existing rules governing admission.
2.

Case-by-case waivers

The Order also contains a detailed waiver provision. Order §3(c). It permits
consular officials (and the U.S. Customs and Border Protection Commissioner) to
grant case-by-case waivers where denying entry “would cause undue hardship” and
“entry would not pose a threat to national security and would be in the national
interest.” Id. Moreover, it lists circumstances where waivers could be considered,
including for (among others):
• foreign nationals who were previously “admitted to the United States for
a continuous period of work, study, or other long-term activity,” but who
are currently outside the country and seeking to reenter;
• individuals who seek entry for “significant business or professional
obligations”; and
• individuals who seek entry “to visit or reside with a close family member
(e.g., a spouse, child, or parent) who is a U.S. citizen, lawful permanent
resident, or alien lawfully admitted on a valid nonimmigrant visa.”

10

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 23 of 68
2284

PageID #:

Id. These provisions providing examples of instances where a waiver may be
warranted expand significantly on the Revoked Order’s provisions regarding
waivers.
Finally, the Order specifies that requests for waivers will be processed “as
part of the visa issuance process.” Order §3(c); see also Second Am. Compl. (ECF
No. 64), Ex. 14, #Q8 (Dep’t of Homeland Security, Q&A: Protecting the Nation
from Foreign Terrorist Entry to the United States (Mar. 6, 2017)); U.S. Dep’t of
State, Executive Order on Visas (Mar. 6, 2017), https://travel.state.gov/content/
travel/en/news/important-announcement.html

(Ex.

B).

Consular

officers

reviewing visa applications will carefully review each request under these criteria.
B.

The Order’s Temporary Refugee Program Suspension

The Order also directs an immediate review to determine whether the
Refugee Program’s processes adequately identify terrorist threats, and “what
additional procedures should be used to ensure that individuals seeking admission
as refugees do not pose a threat” to the country. Order §6(a). To facilitate that
review, the Order suspends Refugee Program travel for 120 days. “Terrorist groups
have sought to infiltrate various nations through refugee programs,” and “some of
those who have entered the United States through our immigration system”—
including “individuals who first entered the country as refugees”—“have proved to
be threats to our national security.” Id. §1(b)(iii), (h). Moreover, more than 300
11

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 24 of 68
2285

PageID #:

individuals who entered the United States are currently the subject of
counterterrorism investigations. Id. §1(h).

The Order thus concludes that

temporarily pausing the Program is necessary to ensure that those seeking to do the
United States harm do not enter as refugees while the new Administration assesses
the adequacy of current screening procedures.
The Order authorizes the Secretaries of State and Homeland Security jointly
to make “case-by-case” exceptions where doing so is “in the national interest and
does not pose a threat” to the Nation’s security or welfare—e.g., if “denial of entry
would cause undue hardship.” Order §6(c). Unlike the Revoked Order, the Order
does not prioritize refugee claims based on persecution against religious minorities.
It also omits the provision indefinitely suspending refugee applications of Syrian
nationals, and exempts refugee applicants the State Department has formally
scheduled for transit as of the Order’s effective date. Id.
V.

DISMISSAL OF THE NINTH CIRCUIT APPEAL, AND PLAINTIFFS’ AMENDED
COMPLAINT AND RENEWED TRO MOTION
In light of the Order, on March 7, 2017, the government filed a motion to

dismiss its appeal of the Washington court’s preliminary injunction, which the
Ninth Circuit granted on March 8. The same day, at plaintiffs’ request, this Court
lifted the stay of proceedings. ECF No. 59. Plaintiffs then filed their operative
complaint and a new motion for a TRO.
12

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 25 of 68
2286

PageID #:

STANDARD OF REVIEW
Emergency relief is “an extraordinary and drastic remedy.” Munaf v. Geren,
553 U.S. 674, 689 (2008). The movant “must establish that [it] is likely to succeed
on the merits, that [it] is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in [its] favor, and that [a TRO]
is in the public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008). Injunctive relief
that “deeply intrudes into the core concerns of the executive branch”—including
foreign affairs and national security—may be awarded only upon “an
extraordinarily strong showing” as to each element. Adams v. Vance, 570 F.2d 950,
954-55 (D.C. Cir. 1978).
Plaintiffs assert facial challenges to the Order.

“Facial challenges are

disfavored” compared to as-applied challenges. Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 450-51 (2008). They are thus “the most difficult
challenge[s] to mount successfully.” United States v. Salerno, 481 U.S. 739, 745
(1987).

Plaintiffs must show more than that the Order “might operate

unconstitutionally under some conceivable set of circumstances.” Id. (emphasis
added). Instead, they bear the “heavy burden” of “establish[ing] that no set of
circumstances exist under which the [Order] would be valid.” Id. Thus, plaintiffs
must show that all or almost all applications will result in the unlawful exclusion
of foreign nationals seeking entry into the United States.
13

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 26 of 68
2287

PageID #:

ARGUMENT
Plaintiffs do not come close to meeting their extraordinary burden. At the
outset, they present no justiciable claim at all. As explained above, the Order
applies only to individuals outside the country who do not have a current visa, and
even as to them, it sets forth robust waiver provisions. Among other things,
therefore, plaintiffs cannot show that any individual whom they seek to protect is
in imminent risk of being denied entry due to the Order. All of their alleged injuries
are speculative. Moreover, plaintiffs’ claims fail on the merits. The Order falls
well within the President’s statutory authority and addresses the constitutional
concerns identified by the Ninth Circuit. Plaintiffs therefore are not entitled to the
sweeping relief they seek.
I.

PLAINTIFFS’ CHALLENGES TO THE ORDER ARE NOT JUSTICIABLE
All of plaintiffs’ claims fail because they lack Article III standing, because

their claims are not yet ripe, or because plaintiffs may not challenge the denial of
immigration benefits to third parties. Plaintiffs must demonstrate a “legally and
judicially cognizable” injury, Raines v. Byrd, 521 U.S. 811, 819 (1997), consisting
of, at minimum, a “concrete and particularized” injury caused by the Order that is
“actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). They have not done so. The only harms
that Hawaii asserts to itself—as opposed to third parties—are far too speculative to
14

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 27 of 68
2288

satisfy Article III.

PageID #:

Hawaii also invokes third-party standing on behalf of

individuals affected by the Order. But third-party standing is the narrow exception,
not the rule, and Hawaii has not met its stringent requirements. In addition,
Hawaii’s claims are barred by the well-established rule generally precluding
judicial review of the denial of a visa. The Ninth Circuit’s ruling addressing these
types of issues is not to the contrary. Its ruling explicitly provided only a “very
preliminary” assessment of standing, and the plaintiffs there established a much
closer relationship to individuals affected by the Revoked Order, which Hawaii
does not establish as to the new Order. 847 F.3d at 1159-61.
Finally, Elshikh claims that he has standing to challenge the inability of his
mother-in-law, a Syrian national, to enter the United States. But that claim—and
any similar claims Hawaii might assert on behalf of other residents—is not ripe,
since Plaintiffs cannot show that Elshikh’s mother-in-law or any other affected
relative of a Hawaiian resident has yet sought, much less been denied, a waiver.
A.

Hawaii’s Claims Are Not Justiciable
1.

Hawaii itself lacks any actual or imminent concrete injury

A “‘threatened injury must be certainly impending to constitute injury in
fact’”; “‘[a]llegations of possible future injury’ are not sufficient.” Clapper v.
Amnesty Int’l, 133 S. Ct. 1138, 1147 (2013). Here, Hawaii alleges three injuries to
itself. Each is far too speculative to support Article III standing, and none gives
15

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 28 of 68
2289

PageID #:

the State a “legally and judicially cognizable” injury, Raines, 521 U.S. at 819,
caused by the Order that is “concrete and particularized” and “actual or imminent,”
Lujan, 504 U.S. at 560-61.
First, Hawaii alleges that the 90-day entry suspension will prevent “state
agencies and universities” from “recruit[ing] and “accept[ing] qualified
applicants.” Compl. ¶¶93, 97; Mot. 45-46. Hawaii’s own declarations, however,
show that it is merely guessing. See, e.g., ECF No. 66-6, ¶8 (acknowledging that
“it is too soon to determine full impact … on the University’s future recruitment
efforts,” and stating only that the university is “anticipating that recruitment …
may be impacted” (emphases added)). Hawaii does not identify any particular
persons it seeks to recruit who have concrete plans to relocate to Hawaii and join a
state university or agency—let alone specific plans to do so in the next 90 days.
Rather, the most Hawaii can say is that unidentified aliens might aspire to do so
someday. But “[s]uch ‘some day’ intentions—without any description of concrete
plans … —do not support a finding of the ‘actual or imminent’ injury that [the
Supreme Court’s] cases require.” Lujan, 504 U.S. at 564. Even if Hawaii could
identify individuals whom it sought to recruit from one of the six countries, it still
would have to show that the Order would prevent such recruitment—i.e., that those
individuals are subject to the entry suspension and could not obtain a waiver. It
has not even attempted to make this showing.
16

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 29 of 68
2290

PageID #:

Second, Hawaii alleges that the Order harms its economy by preventing
private firms from hiring foreign nationals from the six countries and by
discouraging tourism, thereby reducing tax revenue. Compl. ¶¶99-103; Mot. 4748. Such attenuated effects on a State—which depend on the actions of third parties
not before the Court—cannot be sufficient to confer Article III standing. See Lujan,
504 U.S. at 562 (“much more is needed” to establish standing when alleged injury
“hinge[s] on the response” of “third part[ies] to the government action”).
Otherwise, States could challenge virtually any change in immigration policy that
reduced the number of visitors from abroad. And in any event, Hawaii’s allegations
of economic injury are even more speculative than its claimed injuries to state
agencies and universities. Hawaii offers no evidence that the 90-day pause on entry
will prevent private firms from hiring aliens from the covered countries. It certainly
does not demonstrate that hiring would be so impaired as to materially affect the
State’s tax revenue. Moreover, the Order specifically contemplates waivers for
foreign nationals who “seek[] to enter the United States for significant business or
professional obligations.” Order §3(c)(iii).
Hawaii’s only support for anticipating reduced tourism is that visits from the
Middle East declined in January 2017. Compl. ¶¶100-101. But the Order was in
effect only 4 days in that month. Hawaii also offers nothing to show that the new
Order—much narrower in its scope—will have the same effect. To the contrary,
17

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 30 of 68
2291

PageID #:

its own evidence refers only to the “potential” for “further uncertainty”—
undermining any claim of concrete, imminent injury. ECF No. 66-4, ¶10.
Finally, Hawaii resorts to alleging “intangible harms” because the Order
forces the State to “tolerate a policy” it considers unlawful and “antithetical to
Hawaii’s State identity and spirit.” Compl. ¶¶98-99, 105; but see Allen v. Wright,
468 U.S. 737, 753-55 (1984) (allegation that “Government is violating the law”
insufficient to establish standing). Contrary to plaintiffs’ assertion (Mot. 47), the
Order does not “command” or forbid Hawaii to do anything. Hawaii’s amorphous
assertions about its values simply boil down to disagreement with the Executive’s
policy judgments. Such “disagreement,” even if “phrased in constitutional terms,”
“is not an injury sufficient to confer standing.” Valley Forge Christian Coll. v.
Americans United for Separation of Church and State, Inc., 454 U.S. 464, 479-80
(1982).
2.

Hawaii cannot rely on purported injuries to others

Unable to show injury to itself, Hawaii attempts to rely on purported injuries
to others. But “a party ‘generally must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests of third parties.’”
Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). Outside the context of free-speech
rights or “‘enforcement of [a] challenged restriction against the litigant,’” neither
of which is at issue here, the Supreme Court “ha[s] not looked favorably upon third18

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 31 of 68
2292

PageID #:

party standing,” and has permitted it only where a party demonstrates a “close
relationship with the person” whose rights it invokes and a “hindrance” to that
person’s “ability to protect his own interests.” Id. at 129-30 (emphasis in original);
see McCollum v. Cal. Dep’t of Corr. & Rehab., 647 F.3d 870, 878 (9th Cir. 2011).
Hawaii falls short on both fronts.
First, Hawaii does not allege any close relationship with the aliens covered
by the entry suspension, all of whom are currently abroad and lack a visa. The
State cannot premise its participation in a federal lawsuit on the interests of
unspecified aliens with whom the State has no identified connection. See, e.g.,
Voigt v. Savell, 70 F.3d 1552, 1565 (9th Cir. 1995) (no close relationship where
plaintiff may “occasionally be in a position to hire a non-resident”). Hawaii alleges
that the suspension of the Refugee Program will hinder its ability to “help[]
refugees resettle in Hawaii” through its “small” “refugee program,” Compl. ¶104,
but even if that were sufficient, Hawaii does not claim any existing relationship
with would-be refugees affected by that suspension.
Second, Hawaii also cannot demonstrate that any individuals whose rights it
seeks to represent face a “hindrance” in vindicating their own rights. Kowalski,
543 U.S. at 129-30. Hawaii asserts that its residents and their family members and
friends are injured by the Order. But it fails to explain why they cannot seek relief
themselves—as Hawaii’s own co-plaintiff Elshikh has done here. See Hodak v.
19

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 32 of 68
2293

PageID #:

City of St. Peters, 535 F.3d 899, 905 (8th Cir. 2008) (noting agreement among
circuits that, “if a third party actually asserts his own rights, no hindrance exists,
and third-party standing is improper”). Whether or not those individuals’ claims
are justiciable or meritorious, Hawaii’s intervention is unnecessary, and therefore
impermissible.
Hawaii cannot circumvent these limitations by seeking to represent the rights
of its residents under the parens patriae doctrine. Although States may sue on their
citizens’ behalf as parens patriae in some settings, “it is no part of [a State’s] duty
or power to enforce [its citizens’] rights in respect of their relations with the federal
government.” Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923); accord
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 610 n.16
(1982). A State can “assert its” own “rights under federal law,” Massachusetts v.
EPA, 549 U.S. 497, 520 n.17 (2007), but Hawaii seeks to rely on injuries it claims
that its citizens and residents will suffer.
3.

Hawaii may not challenge the denial of immigration
benefits to third parties

The impropriety of Hawaii’s attempt to seek judicial review on others’ behalf
is especially acute in the immigration context. The Supreme Court has “long
recognized” a doctrine of “consular nonreviewability,” under which the denial of a
visa is “‘largely immune from judicial control’” and thus cannot be challenged in
20

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 33 of 68
2294

PageID #:

court, even by the affected alien. Cardenas v. United States, 826 F.3d 1164, 1169
(9th Cir. 2016) (quoting Fiallo v. Bell, 430 U.S. 787, 792, 794-95 (1977)); see
Brownell v. Tom We Shung, 352 U.S. 180, 184 n.3, 185 n.6 (1956); see also, e.g.,
Saavedra Bruno v. Albright, 197 F.3d 1153, 1158-59 & n.2 (D.C. Cir. 1999). The
Ninth Circuit has identified “‘a limited exception to the doctrine … where the
denial of a visa implicates the constitutional rights of American citizens.’”
Cardenas, 826 F.3d at 1169. But that “limited exception” for a U.S. citizen
asserting her own constitutional rights and seeking review of a specific visa denial
plainly does not encompass Hawaii’s sweeping challenge, which is based largely
if not entirely on statutory claims and asserted constitutional rights held by others,
not by the State itself.
B.

The Claims Of Elshikh And Any Other Individual Hawaii Seeks
To Represent Are Unripe

“A claim is not ripe for adjudication if it rests upon ‘contingent future events
that may not occur as anticipated, or indeed may not occur at all.’” Texas v. United
States, 523 U.S. 296, 300 (1998). The plaintiff “must show that withholding review
would result in direct and immediate hardship and would entail more than possible
financial loss.’” W. Oil & Gas Ass’n v. Sonoma County, 905 F.2d 1287, 1291 (9th
Cir. 1990). Here, the only concrete injury Elshikh alleges is that the Order “will

21

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 34 of 68
2295

PageID #:

prevent [his] mother-in-law”—a Syrian national who lacks a visa—from visiting
Elshikh and his family in Hawaii. Compl. ¶85.
That claim is not ripe. The Order expressly provides a “case-by-case” waiver
process for foreign nationals of one of the six covered countries. Order §3(c).
Moreover, it specifically provides that waiver may be appropriate if a “foreign
national seeks to enter the United States to visit or reside with a close family
member (e.g., a spouse, child, or parent) who is a United States citizen, lawful
permanent resident, or alien lawfully admitted” and if “the denial of entry during
the suspension period would cause undue hardship.”

Order §3(c)(iv). It is

therefore entirely possible Elshikh’s mother-in-law—if she is otherwise
admissible—will obtain such a waiver. Compl. ¶¶26-27, 85. Unless and until she
is denied a waiver, her ability or inability to enter—and thus Elshikh’s claimed
injury—“rests upon ‘contingent future events.’” Texas, 523 U.S. at 300.
The same is true of other, unidentified foreign-national “family and friends”
of Hawaiian residents whom plaintiffs claim may be affected by the Order. Compl.
¶¶91, 96; see Mot. 20-21. Like Elshikh’s mother-in-law, whether the Order will
prevent those individuals from entering the United States turns on (inter alia)
whether they receive waivers. Any such claims are thus also unripe.

22

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 35 of 68
2296

II.

PageID #:

PLAINTIFFS ARE NOT LIKELY TO SUCCEED ON THE MERITS
A.

The Order Is A Valid Exercise Of The President’s Authority

Even if plaintiffs’ challenges to the Order were justiciable, they would not
warrant emergency relief because none is likely to succeed. The Order’s temporary
suspension of entry of certain classes of aliens during a review of the Nation’s
screening and vetting procedures is a valid exercise of the President’s broad
statutory authority to “suspend the entry of any aliens or of any class of aliens”
(Section 1182(f)) and to prescribe the terms on which aliens may enter (Section
1185(a)(1)). Plaintiffs do not—and cannot—deny that the Order falls comfortably
within the plain terms of those express grants of authority. Instead, they devote the
lion’s share of their motion (Mot. 24-37) to arguing that other statutes should be
construed as implied repeals of those authorities. No court has accepted those
arguments, which misread the relevant statutes.
1.

The Order falls squarely within the President’s broad
authority under Sections 1182(f) and 1185(a)

“‘[T]he power to exclude aliens is inherent in sovereignty, necessary for
maintaining normal international relations and defending the country against
foreign encroachments and dangers—a power to be exercised exclusively by the
political branches of the government.’” Kleindienst v. Mandel, 408 U.S. 753, 765

23

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 36 of 68
2297

PageID #:

(1972). Congress, moreover, has conferred expansive authority on the President,
including in two statutory provisions that the Order expressly invokes. Order §2(c).
First, Section 1182(f) provides that “[w]henever the President finds that the
entry of any aliens or of any class of aliens into the United States would be
detrimental to the interests of the United States, he may by proclamation, and for
such period as he shall deem necessary, suspend the entry of all aliens or of any
class of aliens as immigrants or nonimmigrants,” or “impose on the entry of aliens
any restrictions he deems to be appropriate.”

“The President’s sweeping

proclamation power [under Section 1182(f)] provides a safeguard against the
danger posed by any particular case or class of cases that is not covered by one of
the [inadmissibility] categories in section 1182(a).” Abourezk v. Reagan, 785 F.2d
1043, 1049 n.2 (D.C. Cir. 1986), aff’d, 484 U.S. 1 (1987). Every President over
the last thirty years has invoked that authority to suspend or restrict entry of certain
classes of aliens.4

4

See, e.g., Proclamation 5517 (1986) (Reagan; Cuban nationals); Exec. Order
No. 12,807 (1992) (George H.W. Bush; government officials who impeded antihuman-trafficking efforts); Proclamation 8342 (2009) (George W. Bush; same);
Proclamation 6958 (1996) (Clinton; Sudanese government officials and armed
forces); Proclamation 8693 (Obama; aliens subject to U.N. Security Council travel
bans).
24

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 37 of 68
2298

PageID #:

Second, Section 1185(a) broadly authorizes the “President” to “prescribe”
reasonable “rules, regulations, and orders,” and “limitations and exceptions”
regarding entry of aliens. That provision is the latest in a line of statutory grants of
authority tracing back nearly a century. See Pub. L. No. 65-154, §1(a), 40 Stat. 559
(1918).

Originally limited to times of war or declared national emergency,

Congress removed that limitation in 1978, when it enacted Section 1185(a) in its
current form. Pub. L. 95-426, §707(a), 92 Stat. 963, 992-93 (1978).
Both of those provisions comfortably encompass the Order’s temporary
suspension of entry of aliens under the Refugee Program and from six countries
that the President—in consultation with the Attorney General and the Secretaries
of State and Homeland Security—concluded required special precautions while the
review of existing screening and vetting protocols is completed. That temporary
measure is a paradigmatic exercise of the President’s authority to “suspend the
entry” of “any class of aliens” he finds may be “detrimental to the interests of the
United States,” 8 U.S.C. §1182(f), and to prescribe reasonable “limitations” on
entry, id. §1185(a)(1).

25

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 38 of 68
2299

2.

PageID #:

The other statutes plaintiffs invoke do not restrict the
President’s broad authority under Sections 1182(f) and
1185(a)
a.

Section 1152 does not prevent the President from
suspending the entry of nationals from the designated
foreign countries

Plaintiffs first contend (Mot. 25-29) that Section 1152(a)(1)(A), which
prohibits discrimination on the basis of nationality in the allocation of immigrant
visas, bars the President from drawing nationality-based distinctions under
Sections 1182(f) and 1185(a). Even if that were correct, it would not justify the
relief plaintiffs seek because Section 1152(a)(1)(A) applies only to aliens seeking
immigrant visas—a small fraction of those affected by the Order. In any event,
plaintiffs are quite wrong to assert that Section 1152(a)(1)(A) disables the President
from drawing nationality-based distinctions under Sections 1182(f) and 1185(a), as
Presidents have done for decades.
i.

Even under plaintiffs’ reading, Section 1152(a)(1)(A) has no bearing

on the vast majority of the Order’s applications. By its terms, that provision
governs only issuance of “immigrant” visas. 8 U.S.C. §1152(a)(1)(A); see id.
§1101(a)(15)-(16), (20). However, the vast majority—more than 70%—of visas
issued in the last two fiscal years to nationals of the six countries at issue were

26

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 39 of 68
2300

PageID #:

nonimmigrant visas.5 Most of the aliens plaintiffs claim will be affected by the
Order—students, employees, tourists, and family visiting relatives, like Elshikh’s
mother-in-law—would likewise seek to enter on nonimmigrant visas. By its plain
terms, Section 1152(a)(1)(A) has no application to such aliens. It likewise has no
application to those entering under the Refugee Program, who do not receive visas
at all.

See 8 U.S.C. §1181(c).

Even where Section 1152(a)(1)(A) applies,

Congress made clear that it does not “limit the authority of the Secretary of State
to determine the procedures for the processing of immigrant visa applications,” id.
§1152(a)(1)(B), which at most is all the Order’s temporary pause does. Plaintiffs,
therefore, cannot meet the “heavy burden” of “establish[ing] that no set of
circumstances exist under which the [Order] would be valid.” Salerno, 481 U.S. at
745. To the contrary, it would still be valid in the vast majority of applications.
ii.

In any event, plaintiffs’ statutory argument is wrong. Even where it

applies, Section 1152(a)(1)(A) does not restrict the President’s authority to draw
nationality-based distinctions under Sections 1182(f) and 1185(a).

Section

1152(a)(1)(A) was enacted in 1965 to abolish the prior system of nationality-based
quotas for immigrant visas. Congress replaced that system with uniform, per-

5

https://travel.state.gov/content/visas/en/law-and-policy/statistics/annualreports/report-of-the-visa-office-2016.html; https://travel.state.gov/content/visas/
en/law-and-policy/statistics/annual-reports/report-of-the-visa-office-2015.html.
27

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 40 of 68
2301

PageID #:

country percentage limits. Section 1152(a)(1)(A) addresses the subject of relative
“preference” or “priority” (and reciprocal disadvantage or “discrimination”) in the
allocation of immigrant visas by making clear that the uniform percentage limits
are the only limits that may be placed on the number of immigrant visas issued to
nationals of any country.
Section 1152(a)(1)(A) thus governs the ordinary process of allocating and
granting immigrant visas. Its plain text governs only “the issuance of an immigrant
visa”; it does not purport to restrict the President’s antecedent, longstanding
authority to suspend entry of “any class of aliens” or to prescribe reasonable “rules,
regulations, and orders” regarding entry as he deems appropriate. And it has never
been understood to prohibit the President from drawing nationality-based
distinctions under Section 1182(f).

For example, President Reagan invoked

Section 1182(f) to “suspend entry into the United States as immigrants by all Cuban
nationals,” subject to exceptions.

Proclamation No. 5517 (1986).

See also

Proclamation 6958 (1996) (members of Sudanese government and armed forces);
Proclamation 5829 (1988) (certain Panamanian nationals); Proclamation 5887
(1988) (Nicaraguan government officers and employees). Moreover, the Supreme
Court has deemed it “perfectly clear that [Section 1182(f)] grants the President
ample power to establish a naval blockade that would simply deny illegal Haitian

28

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 41 of 68
2302

PageID #:

migrants the ability to disembark on our shores.” Sale v. Haitian Ctrs. Council,
Inc., 509 U.S. 155, 187 (1993).
Section 1185(a), too, has long been understood to authorize nationalitybased distinctions. In 1979, the Office of Legal Counsel construed it as authorizing
the President to “declare that the admission of Iranians or certain classes of Iranians
would be detrimental to the interests of the United States.” Immigration Laws and
Iranian Students, 4A Op. O.L.C. 133, 140 (Nov. 11, 1979). Two weeks later,
President Carter invoked Section 1185(a) to direct “limitations and exceptions”
regarding “entry” of certain “Iranians.” Exec. Order No. 12,172 (1979). Plaintiffs
are thus simply wrong to assert (Mot. 29) that past Presidents have not drawn
nationality-based distinctions in administering the immigration laws. See also, e.g.,
Narenji v. Civiletti, 617 F.2d 745, 746-748 (D.C. Cir. 1979) (upholding regulation
that required nonimmigrant-alien post-secondary-school students who were Iranian
natives or citizens to provide residence and immigration status to INS).
Interpreting Section 1152(a)(1)(A) to prohibit the President from drawing
these and other nationality-based distinctions would also raise serious
constitutional questions that the Court must avoid if possible. See Edward J.
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568,
575 (1988).

As these examples illustrate, limiting the entry of nationals of

particular countries can be critical to the President’s ability to conduct the Nation’s
29

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 42 of 68
2303

PageID #:

foreign affairs and protect its security. Yet plaintiffs’ statutory interpretation would
completely disable the President from restricting the entry of immigrants from any
country—even one with which the United States was on the verge of war.
iii.

Plaintiffs offer no sound reason to adopt that constitutionally dubious

interpretation or to upset the long-settled understanding of the President’s statutory
authority. Plaintiffs cite (Mot. 26-27) a handful of decisions addressing various
types of discrimination in other immigration contexts. But only two of those
decisions even mentioned Section 1152(a)(1)(A), and none of them involved an
exercise of the President’s authority under Section 1182(f) or Section 1185(a).6
Plaintiffs are wrong (Mot. 26) that those decisions reflect a general bar on
nationality-based distinctions in immigration. In fact, “given the importance to
immigration law of, inter alia, national citizenship, passports, treaties, and relations
between nations, the use of such classifications is commonplace and almost
inevitable.” Rajah v. Mukasey, 544 F.3d 427, 435 (2d Cir. 2008).

6

See generally Wong Wing Hang v. INS, 360 F.2d 715 (2d Cir. 1966) (not
addressing Section 1152(a)(1)(A)); Bertrand v. Sava, 684 F.2d 204 (2d Cir. 1982)
(same); Abdullah v. INS, 184 F.3d 158 (2d Cir. 1999) (same); United States ex rel.
Kaloudis v. Shaughnessy, 180 F.2d 489 (2d Cir. 1950) (predating Section
1152(a)(1)(A)); cf. Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of
State, 45 F.3d 469, 472-73 (D.C. Cir. 1995) (processing immigrant visas), vacated
on other grounds, 519 U.S. 1 (1996); Olsen v. Albright, 990 F. Supp. 31 (D.D.C.
1997) (issuance of nonimmigrant visas by individual consular officers).
30

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 43 of 68
2304

PageID #:

Plaintiffs contend (Mot. 28) that Section 1152(a)(1)(A) overrides the
President’s Section 1182(f) authority because it was enacted “later in time.” In
fact, plaintiffs have it backwards: to read Section 1152(a)(1)(A) as narrowing the
President’s Section 1182(f) authority would be to treat it as a partial “‘repeal[] by
implication,’” which courts will not do unless Congress’s “‘intention’” is “‘clear
and manifest.’” Nat’l Ass’n of Home Builders v. Defenders of Wildlife (NAHB),
551 U.S. 644, 662, 664 n.8 (2007); see Radzanower v. Touche Ross & Co., 426
U.S. 148, 155 (1976). Sections 1152(a)(1)(A) and 1182(f) can, and therefore must,
be reconciled by sensibly reading Section 1152(a)(1)(A)’s general, default
provisions as not affecting the President’s authority to suspend entry under Section
1182(f) based on a specific finding about the national interest. See RadLAX
Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2070-71 (2012) (“‘[I]t
is a commonplace of statutory construction that the specific governs the general.’”).
Furthermore, even if Section 1152(a)(1)(A) could be construed to narrow
Section 1182(f), it cannot be read to narrow Section 1185(a)—which was
substantially amended in 1978, after Section 1152(a)(1)(A)’s enactment. Nothing
in Section 1185(a)’s current text or post-1978 history limits the President’s
authority to restrict entry by nationals of particular countries.

31

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 44 of 68
2305

b.

PageID #:

Section 1182(a) does not prevent the President from
suspending the entry of nationals from the designated
countries

Plaintiffs separately contend (Mot. 29-37) that the Order’s entry suspension
exceeds the President’s Section 1182(f) authority because the suspension is based
on terrorism concerns, and Congress has already set forth criteria for denying
admission on terrorism-related grounds in Section 1182(a)(3)(B). That argument
is refuted by the very authorities that plaintiffs invoke.
i.

Plaintiffs’ argument rests (Mot. 32-33) on Abourezk and Allende v.

Shultz, 845 F.2d 1111 (1st Cir. 1988). Those cases addressed the interaction
between (now-superseded) Sections 1182(a)(27) and (28)—two specific exclusions
created by Congress. Section 1182(a)(27) rendered inadmissible aliens who sought
to enter the country “to engage in activities which would be prejudicial to the public
interest.” 8 U.S.C. 1182(a)(27) (1982). Section 1182(a)(28) rendered inadmissible
members of the Communist Party, but was subject to limits and restrictions not
applicable to Section 1182(a)(27). See Abourezk, 785 F.2d at 1048. The First and
D.C. Circuits held that Communist Party membership could not be grounds for
exclusion under Section 1182(a)(27), because that would render “subsection (28)
… superfluous” and would “nullif[y] … that subsection’s” specific “restrictions.”
Id. at 1057; see Allende, 845 F.2d at 1117-18.

32

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 45 of 68
2306

PageID #:

Section 1182(f) is markedly different. It is a broad grant of authority to
suspend the admission of aliens, vested in the President himself. Its whole point is
to allow the President to suspend entry of additional aliens, beyond those already
rendered inadmissible by Section 1182(a). The First and D.C. Circuits thus
expressly recognized that the President may exercise his authority in a manner that
overlaps with or reflects the same concerns as the specific exclusions in Section
1182(a). Both courts made clear that, although Section 1182(a)(28)’s specific
provision authorizing exclusion of “the Communist … Party … of any foreign
state” precluded interpreting Section 1182(a)(27) to authorize exclusion based on
party membership, it did not prevent the President from achieving the same result
using Section 1182(f)’s “sweeping proclamation power.” Abourezk, 785 F.2d at
1049 n.2; accord Allende, 845 F.2d at 1118 & n.13. Indeed, the D.C. Circuit noted
that the President had used Section 1182(f) to do just that, by suspending the entry
of officers or employees of the “Cuban Communist Party.” Abourezk, 785 F.2d at
1049 n.2. Abourezk and Allende thus directly refute plaintiffs’ reading of Section
1182(f).
ii.

Plaintiffs’ argument is also unpersuasive on its own terms. It assumes

that the President may not exercise his Section 1182(f) authority based on any
general concern that also underlies one of Section 1182(a)’s many specific grounds

33

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 46 of 68
2307

PageID #:

for inadmissibility. That cramped understanding of Section 1182(f) is contrary to
the text and structure of the statute and inconsistent with decades of practice.
Section 1182(a) sets forth numerous specific grounds of inadmissibility,
including grounds relating to “[h]ealth[],” “[c]riminal” history, “[s]ecurity,” and
“[f]oreign policy.” 8 U.S.C. §1182(a)(1), (2), (3), (3)(C). Recognizing that specific
statutory criteria cannot anticipate every threat to national interests, Section 1182(f)
supplements them by granting the President broad authority to “suspend the entry”
of additional aliens or classes of aliens. Nothing in Section 1182(f)’s text suggests
that the President cannot exercise that authority in response to concerns that overlap
with one of Section 1182(a)’s inadmissibility grounds. Indeed, given the breadth
and variety of those grounds, it is difficult to conceive of a plausible exercise of the
President’s Section 1182(f) authority that could not be characterized as touching a
topic already addressed in Section 1182(a).
Experience confirms that Section 1182(f) is not confined to topics on which
Section 1182(a) is silent. For example, Congress identified certain crimes that
render aliens inadmissible, 8 U.S.C. §1182(a)(2), yet Presidents have invoked
Section 1182(f) to suspend the entry of aliens who committed criminal offenses.7
Similarly, Section 1182(a) renders inadmissible aliens who have participated in

7

E.g., Executive Order No. 13,694 (2015); Proclamation No. 7750 (2004).
34

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 47 of 68
2308

PageID #:

certain human-rights violations, including “genocide,” “torture,” and “extrajudicial
killing,” 8 U.S.C. §1182(a)(3)(E)(ii)-(iii), yet presidents have invoked Section
1182(f) to suspend entry of aliens linked to other human-rights abuses.8 More
broadly, Section 1182(a)(3)(C) deems an alien inadmissible if the Secretary of State
“has reasonable ground to believe” that his entry “would have potentially serious
adverse foreign policy consequences.” Virtually every invocation of Section
1182(f) addresses foreign policy and reflects the President’s determination that “it
is in the foreign policy interests of the United States to suspend the entry” of the
affected aliens. Proclamation No. 7062 (Jan. 14, 1998).9

So, too, Section

1182(a)(3)(B)’s exclusion for any alien who has “engaged in” or “is likely to
engage” in “terrorist activity” does not bar the President from temporarily
suspending certain entries to assess whether existing procedures are adequate to
detect potential terrorists.
B.

The Order Does Not Violate The Due Process Clause

Plaintiffs assert (Mot. 38-40) that the Order abridges due process by
“flouting” the Ninth Circuit’s decision regarding the Revoked Order. That is

8

E.g., Executive Order No. 13,692 (2015); Executive Order No. 13,606
(2012); Proclamation No. 8697 (2011); Proclamation No. 8015 (2006).
9

E.g., Proclamation No. 7060 (1997); Executive Order No. 13,726, (2017);
Executive Order No. 13,712 (2015); Executive Order No. 13,687 (2015).
35

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 48 of 68
2309

PageID #:

wrong. The Order applies only to aliens who have no due-process rights in
connection with their entry into this country, and it specifically excludes all
categories of aliens about whom the Ninth Circuit had expressed concern.
Plaintiffs thus try to assert the purported due-process rights of Elshikh and other
U.S. citizens with respect to the entry of aliens abroad. But that fails for numerous
reasons, including because the Order provides whatever individualized process the
Constitution may require.
1.

The aliens affected by the Order do not have due-process
rights with respect to their entry into the United States

The only persons subject to the Order are foreign nationals outside the
United States with no visa or other authorization to enter this country. Order §3(a)(b). The Supreme Court “has long held that an alien seeking initial admission to
the United States requests a privilege and has no constitutional rights regarding his
application.” Landon, 459 U.S. at 32; see Mandel, 408 U.S. at 762. Such aliens
thus have no due-process rights regarding their potential entry. Angov v. Lynch,
788 F.3d 893, 898 (9th Cir. 2015) (as amended).
The Ninth Circuit’s per curiam order did not question that long-settled rule.
Instead, it concluded that the Revoked Order raised due-process concerns as
applied to lawful permanent residents, “persons who are in the United States, even
if unlawfully,” and “non-immigrant visaholders who have been in the United States
36

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 49 of 68
2310

PageID #:

but temporarily departed or wish to temporarily depart” and then return. 847 F.3d
at 1166 (emphasis added). The Order, however, eliminates those concerns because
it applies only to persons who “are outside the United States” and lack a visa. Order
§3(a).10 It expressly excludes lawful permanent residents, id. §3(b)(i), and has no
effect on persons who are in the United States or have a valid visa. Id.
2.

Plaintiffs’ due-process claims on behalf of U.S. citizens lack
merit

Plaintiffs do not appear to contend that the Order implicates any due-process
rights held by the affected aliens. Instead, their claim focuses on the Order’s
alleged impact on U.S. citizens and residents in Hawaii—not themselves subject to
the Order—who have an interest in the ability of aliens abroad to enter the United
States. The Ninth Circuit described those persons as having “potential claims
regarding possible due process rights.” 847 F.3d at 1166 (emphases added). Even
if meritorious, such claims could not justify facially invalidating the Order, but at
most could support as-applied claims. In any event, plaintiffs’ attempt to assert
such claims fails for three independent reasons.

10

The Ninth Circuit also stated that “refugees” may have “possible” dueprocess rights. 847 F.3d at 1166. The court appeared to refer to aliens present in
the United States or at the border and who seek asylum or other protection based
on a fear of persecution. See id. at 1165. Those aliens are not affected by the
Order’s suspension of the Refugee Program, which covers only aliens seeking
admission from abroad. See 8 U.S.C. § 1157.
37

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 50 of 68
2311

PageID #:

First, the Due Process Clause confers no entitlement on persons in the United
States regarding the entry of others. See Kerry v. Din, 135 S. Ct. 2128, 2131 (2015)
(plurality opinion) (“There is no such constitutional right.”). In a pre-Din decision,
the Ninth Circuit held that a U.S. citizen spouse had a protected liberty interest in
her husband’s entry. See Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir.
2008). But Justice Kennedy’s concurring opinion in Din expressly reserved
judgment on whether a person in the United States has any due-process right even
with respect to entry of her spouse; he found no “need [to] decide that issue”
because “the Government satisfied any” due-process “obligation it might have
had.” Id. at 2139, 2141. There (and in Bustamante), the alleged due-process right
was tied to the fundamental right to marry, see 135 S. Ct. at 2134 (plurality op.)—
i.e., “a protected liberty interest in” and “freedom of personal choice in matters of
marriage,” Bustamante, 531 F.3d at 1062. Din does not even arguably support
extending due-process rights to the entry of more distant family members, such as
Elshikh’s mother-in-law. See, e.g., Santos v. Lynch, 2016 WL 3549366, at *3-4
(E.D. Cal. June 29, 2016) (declining to extend Din to find “liberty interest an adult
child to live in the United States with her parents”); L.H. v. Kerry, No. 14-06212,
slip op. 3-4 (C.D. Cal. Jan. 26, 2017) (same; daughter, son-in-law, and grandson).
Second, even if the Due Process Clause applied, plaintiffs’ procedural dueprocess claims would fail because they do not explain what further “appropriate
38

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 51 of 68
2312

PageID #:

process” (Mot. 40) the Constitution could possibly require. Unlike the plaintiff in
Din, plaintiffs here do not seek additional explanation for an individualized
immigration decision or contend that officials misapplied a legal standard to a
particular case. See 135 S. Ct. at 2132 (plurality opinion). Instead, plaintiffs
challenge the President’s decision to suspend the entry of certain nationals of six
countries and the Refugee Program. Plaintiffs do not and cannot claim that due
process requires notice or individualized hearings where, as here, the government
acts through categorical judgments rather than individual adjudications.

See

Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 446 (1915); Yassini
v. Crosland, 618 F.2d 1356, 1363 (9th Cir. 1980).
Third, even if some individualized process were required, the Order more
than provides it through the consular review of waiver requests (part of the visaapplication process), including for foreign nationals seeking to “visit or reside with
a close family member.” Order §3(c)(iv); see id. §3(c)(i)-(ix). Plaintiffs do not
even attempt to identify any inadequacy in that process. Instead, they simply note
(Mot. 39-40) that the Ninth Circuit stated that the Revoked Order’s waiver
provisions did not cure the court’s concerns about that order. See 847 F.3d at 1169.
But the new Order applies only to aliens outside the United States without a visa
and establishes a far more detailed waiver process. See supra pp. 9-10. Those
changes resolve the only potential shortcomings the Ninth Circuit identified in the
39

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 52 of 68
2313

PageID #:

Revoked Order’s waiver provisions. At an absolute minimum, Plaintiffs cannot
claim that the Due Process Clause entitles them to emergency injunctive relief
when they have not availed themselves of the process the Order provides.
C.

The Order Does Not Discriminate Based On Religion

The Order does not discriminate on the basis of religion. It applies to six
countries that Congress and the prior Administration determined posed special
risks of terrorism. It applies to all individuals in those countries, regardless of their
religion. And it excludes numerous individuals with ties to this country, while
providing a comprehensive waiver process for others. Plaintiffs nevertheless try to
impugn the Order using campaign statements. As the Supreme Court has made
clear, official action must be adjudged by its “‘text, legislative history, and
implementation of the statute or comparable official act[ion],’” not through
“judicial psychoanalysis of a drafter’s heart of hearts.” McCreary County v. ACLU
of Ky., 545 U.S. 844, 862 (2005) (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530
U.S. 290, 308 (2000)). Measured against these standards, the Order falls well
within the President’s lawful authority.
1.

The Order draws distinctions on the basis of risk of
terrorism, not religion

Plaintiffs correctly do not contend that the Order draws “explicit and
deliberate distinctions” based on religion. Larson v. Valente, 456 U.S. 228, 246

40

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 53 of 68
2314

PageID #:

n.23 (1982). The only language in the Revoked Order touching on religion—a
neutral provision intended to assist victims of religious persecution—has been
removed. And the Order’s temporary suspensions are expressly premised on the
President’s finding that a temporary pause in entry was necessary to “prevent
infiltration by foreign terrorists” while the review of screening and vetting
procedures is ongoing. Order §2(c). The six countries covered were previously
designated by Congress and the Executive Branch as presenting particular risks,
and the risk of continued entry from those countries during the review was, in the
President’s view, unacceptably high. Supra pp. 8-9.
The Order’s stated “secular purpose” is entitled to “deference” so long as it
is “genuine,” i.e., “not a sham, and not merely secondary to a religious objective.”
McCreary, 545 U.S. at 864. Courts judge the genuineness of the government’s true
“object” by considering the “operation” of its action, as “the effect of a law in its
real operation is strong evidence of its object.” Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 535 (1993). The “Establishment Clause
analysis does not look to the veiled psyche of government officers,” but rather to
“the ‘text, legislative history, and implementation of the statute,’ or comparable
official act.”

McCreary, 545 U.S. at 862-63.

Here, the operation of both

suspensions confirms the Order’s stated purpose.

The suspensions apply

irrespective of any alien’s religion, and plaintiffs do not contend otherwise.
41

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 54 of 68
2315

PageID #:

Plaintiffs repeatedly note that the six countries covered by the entry
suspension are “Muslim-majority.” Mot. 1, 3, 12, 14. But that fact does not
establish that the suspension’s object is to single out Islam. The six countries
covered were previously selected by Congress and the Executive through a process
that Plaintiffs do not contend was religiously motivated.

In addition, those

countries represent only a small fraction of the world’s 50 Muslim-majority
nations, and are home to less than 9% of the global Muslim population.11 And the
suspension covers every national of those countries, including millions of nonMuslim individuals in those countries, if they meet the Order’s criteria.
2.

The Order cannot be restrained on the basis of campaign
statements or the Revoked Order

Plaintiffs argue that the Order targets Islam not because of what it says or
does, but because of “infer[ences]” they claim can be drawn from “[t]he history of
the [Revoked] Order” and “statements by the President and his surrogates,” mostly
before taking office. Mot. 41. Plaintiffs cannot use either type of parol evidence
to evade the Order’s “stated secular purpose.” Mot. 42.
a.

As a threshold matter, the Supreme Court has made clear in the

immigration context that courts may not “look behind the exercise of [Executive]

11

See Pew-Templeton Global Religious Futures Project, Muslim Population by
Country (2010), http://www.globalreligiousfutures.org/religions/muslims
42

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 55 of 68
2316

PageID #:

discretion” taken “on the basis of a facially legitimate and bona fide reason.”
Mandel, 408 U.S. at 77; see Fiallo v. Bell, 430 U.S. 787, 796 (1977). That clear
rule alone—which plaintiffs never address—disposes of their Establishment
Clause claim. As those cases recognize, plaintiffs’ approach would thrust courts
into the untenable position of probing the Executive’s judgments on foreign affairs
and national security. And it would invite impermissible intrusion on Executive
Branch deliberations, which are constitutionally “privilege[d]” against such
inquiry, United States v. Nixon, 418 U.S. 683, 708 (1974), as well as litigant-driven
discovery that would disrupt the President’s ongoing execution of the laws, see,
e.g., Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). Searching for governmental
purpose outside official pronouncements and the operative terms of governmental
action is fraught with practical “pitfalls” and “hazards” that courts should avoid.
Palmer v. Thompson, 403 U.S. 217, 224 (1971).
b.

Even if the Court could look behind the President’s facially legitimate

reasons for suspending the entry of certain foreign nationals and refugees, informal
statements by the President or his surrogates that do not directly concern the Order
are irrelevant. The Supreme Court has declined to rely even on press statements
and other informal communications by incumbent government officials,
recognizing that they may not accurately reflect the government’s position. See
Hamdan v. Rumsfeld, 548 U.S. 557, 623-24 & n.52 (2006); see also Professionals
43

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 56 of 68
2317

PageID #:

& Patients for Customized Care v. Shalala, 56 F.3d 592, 599 (5th Cir. 1995). A
fortiori, statements by private persons cannot reveal “the government’s ostensible
object.” McCreary, 545 U.S. at 859-60; see Modrovich v. Allegheny County,
385 F.3d 397, 411-12 (3d Cir. 2004) (declining to rely on position of nongovernment parties); Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 (10th
Cir. 2008) (same); Glassman v. Arlington County, 628 F.3d 140, 147 (4th Cir.
2010) (same).
Using comments by political candidates to question the stated purpose of
later action is particularly problematic. Candidates are not government actors, and
statements of what they might attempt to achieve if elected, which are often
simplified and imprecise, are not “official act[s].” McCreary, 545 U.S. at 862.
They generally are made without the benefit of advice from an as-yet-unformed
Administration, and cannot bind elected officials who later conclude that a different
course is warranted. See Republican Party of Minn. v. White, 536 U.S. 765, 780
(2002). Permitting campaign statements to contradict official pronouncements of
the government’s objectives would inevitably “chill political debate during
campaigns.” Phelps v. Hamilton, 59 F.3d 1058, 1068 (10th Cir. 1995) (declining
to rely on campaign statements). It also would be unworkable, requiring the
“judicial psychoanalysis” that McCreary repudiated. 545 U.S. at 862.

44

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 57 of 68
2318

PageID #:

Even considering plaintiffs’ proffered extrinsic evidence, none of it
demonstrates that this Order—adopted after the President took office, to address
the Ninth Circuit’s concerns—was driven by religious animus. Plaintiffs’ marquee
statement proves the point: they cite a 15-month-old campaign press release
advocating a “complete shutdown” on Muslims’ entering the country. Mot. 3. That
release and other proffered statements reveal nothing about the Order’s aim,
because the Order does no such thing. Far from banning Muslims indefinitely, the
Order temporarily suspends the Refugee Program globally, and pauses for 90 days
entry from just six countries previously identified as posing particular risks—both
subject to religion-neutral exceptions and case-by-case waivers.

There is a

complete disconnect between plaintiffs’ imputed purpose and the Order’s actual
effect.
c.

Plaintiffs contend (Mot. 41-44) that McCreary requires looking

behind the Order’s text and legal effects to speculate at its aims. In fact, McCreary
says the opposite. McCreary makes clear that what matters is not a government
official’s subjective motive, but only the “official objective” drawn from “readily
discoverable fact.” 545 U.S. at 862. As McCreary explained, the Supreme Court’s
previous cases had rested on analysis of objective facts directly related to the law
at issue: “In each case, the government’s action was held unconstitutional only
because openly available data”—a law’s text or obvious effects, the policy it
45

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 58 of 68
2319

PageID #:

replaced, official public statements of the law’s purpose, or “comparable official
act[s]”—“supported a commonsense conclusion that a religious objective
permeated the government’s action.” Id. at 862-63 (emphasis added); see Lukumi,
508 U.S. at 534-35 (gleaning purpose from ordinances’ “text” and “operation”).
McCreary’s analysis of the counties’ purpose therefore centered on the text
of the resolutions that serially authorized Ten Commandments displays and the
features of those displays. See 545 U.S. at 868-74. Although the Court referred to
other sources (e.g., official statements made during legislative meetings) in
describing the facts, e.g., id. at 851, McCreary’s reasoning and holding rested on
the actions the counties took and inferences fairly drawn from them, id. at 868-74.
The Court emphatically rejected suggestions that it “look to the veiled psyche of
government officers.” Id. at 863.
The contrast between this case and McCreary could not be more stark.
There, the religious purpose of the original resolution authorizing the Ten
Commandments display was readily evident from the outset. 545 U.S. at 868-69.
The counties’ second resolution compounded the problem, making the religious
aim explicit. Id. at 870. The counties’ third and final display still showed a
“sectarian spirit,” since it included a different version of the Ten Commandments
that “quoted more of the purely religious language of the Commandments than the

46

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 59 of 68
2320

PageID #:

first two displays had done,” and, significantly, was created “without a new
resolution or repeal of the old one.” Id. at 870, 872.
Here, in contrast, the Order does not convey any religious message; indeed,
it does not reference religion at all. The Revoked Order contained provisions
addressing religious minorities, but—as the new Order takes care to explain—those
provisions did not and never were intended to discriminate along denominational
lines. Order §1(b)(iv). Regardless, the current Order responded to concerns about
the Revoked Order’s aims by removing the provisions that purportedly drew
religious distinctions—erasing any doubt that national security, not religion, is the
focus. The Order also reflects the considered views of the Secretary of State, the
Secretary of Homeland Security, and the Attorney General, who announced the
Order and whose motives have not been impugned. In short, the President’s efforts
to accommodate courts’ concerns while simultaneously fulfilling his constitutional
duty to protect the Nation only confirms that the Order’s intention most
emphatically is not to discriminate along religious lines.12

12

Plaintiffs do not attempt to show that they are likely to succeed on their
complaint’s other challenges to the Order. Cf. Compl. ¶¶112-17 (equal-protection
on basis of national origin), ¶¶118-21 (substantive due process); id. ¶¶132-48
(Religious Freedom Restoration Act and Administrative Procedure Act). Those
conclusory claims, omitted or mentioned only in passing in plaintiffs’ motion (Mot.
40 n.2), are thus irrelevant here.
47

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 60 of 68
2321

III.

PageID #:

PLAINTIFFS HAVE NOT SHOWN IMMEDIATE, IRREPARABLE HARM
Plaintiffs’ request for emergency injunctive relief independently fails

because they cannot show “irreparable harm.” Winter, 555 U.S. at 20. To secure
an injunction, plaintiffs “must do more than merely allege imminent harm
sufficient to establish standing”; they “must demonstrate immediate threatened
injury” that only “preliminary injunctive relief” can prevent. Caribbean Marine
Servs. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988) (emphasis in original).
Here, the only harms Plaintiffs identify are entirely speculative, and they have not
begun to show any harms they would suffer in the time a TRO would be in effect.
Hawaii contends (Mot. 45-48) that its universities and agencies’ recruitment may
suffer and that Hawaiian businesses (and, indirectly, state coffers) will lose tourism
revenue. But as its own declarations show, those fears are pure conjecture. Supra
pp. 15-17. At a minimum, Hawaii has not “demonstrate[d] immediate threatened
injury” from the short, temporary suspensions of entry and the Refugee Program—
particularly because the process of obtaining a visa or securing admission as a
refugee already takes time.

Caribbean Marine, 844 F.2d at 674 (emphasis

omitted).
Elshikh’s claim of injury is similarly speculative. Although he alleges that
the Order “deprives him” of his mother-in-law’s company, which causes him
“emotional turmoil,” Mot. 48, he fails to “demonstrate” that the Order will cause
48

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 61 of 68
2322

PageID #:

that deprivation. Caribbean Marine, 844 F.2d at 674. Elshikh’s description of his
mother-in-law’s circumstances demonstrates that she may qualify for a waiver
when her visa application is adjudicated. Neither Elshikh nor his mother-in-law
therefore faces any injury caused by the Order today. Until his mother-in-law
requests but is denied a waiver, neither one even arguably needs an injunction to
avoid irreparable harm. If and when she is denied a waiver, Elshikh can pursue an
as-applied challenge at that time.
IV.

THE BALANCE OF EQUITIES AND PUBLIC INTEREST WEIGH STRONGLY
AGAINST EMERGENCY RELIEF
The government and the public’s interest—which merge here, see Nken v.

Holder, 556 U.S. 418, 435 (2009)—counsel strongly in favor of leaving the Order
in effect.

The President, in consultation with the Attorney General and the

Secretaries of State and Homeland Security, determined that, while the review of
screening and vetting procedures is ongoing, the “risk of erroneously permitting
entry” of an individual who intends to commit terrorist acts “is unacceptably high.”
Order §1(f). That risk assessment provides more than sufficient basis to leave the
Order’s temporary, precautionary safeguards in place.
Experience and empirical data already demonstrate the ability of would-be
terrorists to infiltrate the country through cracks in screening and vetting processes;
some 300 persons who entered as refugees are currently under investigation, and
49

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 62 of 68
2323

PageID #:

hundreds of foreign-born persons have been convicted of terrorism-related crimes.
Order §1(h). Given that reality, the Executive’s obligation, and the Order’s aim, is
to predict where the greatest risk exists going forward. The Order reflects such
prediction, identifying six countries that Congress and the prior Administration had
found present a “heightened risk” that possibly inadequate screening could enable
terrorist infiltration. Order §1(e). The Order further details the specific concerns
with each of the six countries (and why Iraq now presents a different circumstance).
Id. §1(e), (g).
The Order thus reflects the Executive’s “[p]redictive judgment,” which is
entitled to the greatest possible degree of judicial deference. Dep’t of the Navy v.
Egan, 484 U.S. 518, 527-29 (1988). Such judgments “have long been held to
belong in the domain of political power not subject to judicial intrusion or inquiry,”
as they “are delicate, complex, and involve large elements of prophecy,” and are
“of a kind for which the Judiciary has neither aptitude, facilities nor responsibility.”
Chi. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948). “[W]hen it
comes to collecting evidence and drawing factual inferences in this area, the lack
of competence on the part of the courts is marked, and respect for the Government’s
conclusions is appropriate.” Holder v. Humanitarian Law Project (HLP), 561 U.S.
1, 34 (2010) (internal citation omitted).

50

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 63 of 68
2324

PageID #:

The “evaluation of the facts by the Executive” to support predictive
judgments is especially “entitled to deference” when “litigation implicates sensitive
and weighty interest of national security and foreign affairs.” HLP, 561 U.S. at 3335.

When the Executive adopts “a preventive measure” in order “to prevent

imminent harms in the context of international affairs and national security,” the
government “is not required to conclusively link all the pieces in the puzzle before
we grant weight to its empirical conclusions.” Id. at 35. Thus, where “[t]he
Executive … deem[s] nationals of a particular country a special threat,” “a court
would be ill equipped to determine the[] authenticity and utterly unable to assess
the[] adequacy” of that determination. Reno v. American-Arab Discrimination
Committee, 525 U.S. 471, 491 (1999).
Plaintiffs offer nothing that could plausibly justify disregarding the
considerable deference due to the Executive’s analysis and predictive judgments.
The best they muster is a leaked draft report asserting that “not a single fatal
terrorist attack” has already been carried out by a foreign national of one of the six
countries subject to the suspension. Compl. ¶53. That single draft document could
not possibly overcome the final assessment of the President and multiple Cabinet
Secretaries. Joint Ltr. to President (Mar. 6, 2017); see NAHB, 551 U.S. at 658-59.
More fundamentally, plaintiffs miss the point: the Order’s objective is to prevent
future terrorist attacks before they occur. And that is precisely why the Order
51

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 64 of 68
2325

PageID #:

focuses on six countries that Congress and the prior Administration recently
determined pose the greatest risk of terrorist infiltration in the future.
V.

THE FACIAL, NATIONWIDE RELIEF PLAINTIFFS SEEK IS UNWARRANTED
The emergency relief plaintiffs request is plainly overbroad for at least two

reasons. First, Plaintiffs have challenged the Order on its face, but they cannot
carry their burden of “establish[ing] that no set of circumstances exist[s] under
which the [Order] would be valid.” Salerno, 481 U.S. at 745. For example, the
Order is clearly constitutional as applied to foreign nationals with no immediate
relatives in the country and no other significant connection to it. The appropriate
course is, therefore, for persons subject to the Order to challenge it on an as-applied
basis, and to do so only if and when they are denied a waiver. Only then can the
relevant standing and merits questions be resolved in a concrete factual context.
Second, any emergency relief could extend only to redressing the plaintiffs’
asserted violations, not the sweeping relief plaintiffs request. “The remedy” a
plaintiff may seek “must of course be limited to the inadequacy that produced the
injury in fact that the plaintiff has established.” Lewis v. Casey, 518 U.S. 343, 357
(1996). The Ninth Circuit thus has repeatedly vacated preliminary injunctions that
were broader than necessary to redress the plaintiff’s specific harm pending further
proceedings. See, e.g., Stormans, Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir.
2009); Meinhold v. U.S. Dep’t of Defense, 34 F.3d 1469, 1480 (9th Cir.
52

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 65 of 68
2326

PageID #:

1994). These principles apply with even greater force to TROs. Thus, for Elshikh,
relief could address at most his mother-in-law’s ability to enter the country through
otherwise applicable visa procedures. For Hawaii, a TRO could address at most
particular individuals with whom it shows it has a close existing relationship,
whose own constitutional rights likely have been violated by the denial of entry to
a specific alien abroad, who face an imminent risk of injury, and who otherwise are
eligible for a visa.
The nationwide relief plaintiffs seek plainly violates this rule. Elshikh has
no “personal stake” in any relief beyond his mother-in-law. City of Los Angeles v.
Lyons, 461 U.S. 95, 101-02 (1983)). And Hawaii could have no stake in relief
beyond the particular persons whose claims it may assert and whose own
constitutional rights are violated by the denial of entry to an alien abroad. It
certainly could have no stake beyond its own borders. As a Virginia district court
recognized in litigation over the Revoked Order, nationwide relief beyond the
specific individuals plaintiffs seek to represent is unwarranted. See Aziz v. Trump,
2017 WL 580855, at *10 (E.D. Va. Feb. 13, 2017) (limiting injunction to “Virginia
residents” who were lawful permanent residents or held valid student or work visas
when Revoked Order took effect).
Plaintiffs lean heavily (Mot. 50-51) on the Ninth Circuit’s decision not to
stay the Washington court’s nationwide injunction. But the Ninth Circuit did not
53

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 66 of 68
2327

PageID #:

conclude that that injunction was tailored to the plaintiffs’ harms and the
applications of the Revoked Order that raised constitutional concerns. It rested
solely on the ground that the injunction applied to many persons whom the court
concluded had potentially valid claims—principally, lawful permanent residents—
and an injunction tailored only to those persons was not “workable.” Id. at
1167. Moreover, the court specifically explained that the Executive was “far better
equipped” to revise the Revoked Order. Id. The Executive has now done so, and
its narrowed Order should not be subject to untailored and nationwide emergency
relief.

54

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 67 of 68
2328

PageID #:

CONCLUSION
Hawaii’s motion for a TRO should be denied.
DATED: March 13, 2017

Respectfully submitted,
JEFFREY B. WALL
Acting Solicitor General
CHAD A. READLER
Acting Assistant Attorney General
ELLIOT ENOKI
Acting United States Attorney
EDRIC M. CHING
Assistant United States Attorney
JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Brad P. Rosenberg
BRAD P. ROSENBERG (DC Bar. No. 467513)
MICHELLE R. BENNETT (CO Bar. No. 37050)
DANIEL SCHWEI (NY Bar)
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants

55

Case 1:17-cv-00050-DKW-KSC Document 145 Filed 03/13/17 Page 68 of 68
2329

PageID #:

CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing memorandum complies with the word
limitation specified in the Court’s March 8, 2017, Briefing Scheduling Order (ECF
No. 60). The memorandum is set in Times New Roman 14-point type and,
according to the word-count facility of the word processing system used to produce
the memorandum, contains 11,995 words.

Date: March 13, 2017

/s/ Brad P. Rosenberg
Brad P. Rosenberg
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave, N.W.
Washington, DC 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorney for Defendants