International Refugee Assistance Project et al v. Trump et al

Filing 130

REPLY to Response to Motion re 95 Amended MOTION for Temporary Restraining Order and/or Preliminary Injunction filed by HIAS, Inc., Allan Hakky, International Refugee Assistance Project, Jane Doe 1, John Doe 1-4, Samaneh Takaloo.(Jadwat, Omar)

Case 8:17-cv-00361-TDC Document 130 Filed 03/14/17 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

INTERNATIONAL REFUGEE
ASSISTANCE PROJECT, et al.,

Plaintiffs,

v.

Civil Action No.: 8:17-CV-00361-TDC

PLAINTIFFS’
MOTION
FOR
A
PRELIMINARY INJUNCTION AND/OR
TEMPORARY RESTRAINING ORDER
OF THE EXECUTIVE ORDER &
MEMORANDUM OF LAW IN SUPPORT
THEREOF

DONALD TRUMP, et al,

Defendants.

Case 8:17-cv-00361-TDC Document 130 Filed 03/14/17 Page 2 of 23

TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 1
I. THE PLAINTIFFS HAVE STANDING. ........................................................................... 1
A. The Organizational Plaintiffs Have Standing. ........................................................ 1
B. The Individual Plaintiffs Have Standing................................................................. 4
C. The Plaintiffs’ Claims Are Ripe. ............................................................................ 6
II. THE EXECUTIVE ORDER VIOLATES THE CONSTITUTION. .................................. 7
A. The New Order, Like the Old One, Is Unconstitutional Religious
Discrimination......................................................................................................... 7
B. The Order Is Subject to Normal Constitutional Review ....................................... 12
III. THE EXECUTIVE ORDER VIOLATES IMMIGRATION LAW. ................................ 14
IV. THE PLAINTIFFS FACE IRREPARABLE HARM. ...................................................... 16
V. A TEMPORARY RESTRAINING ORDER IS IN THE PUBLIC INTEREST. ............. 17
VI. THE COURT SHOULD FACIALLY ENJOIN THE EXECUTIVE ORDER ON ITS
FACE. ............................................................................................................................... 17
CONCLUSION ............................................................................................................................. 18

i

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INTRODUCTION
President Trump ran on a promise to stop Muslim immigration, and he proposed to
accomplish that goal by banning individuals from Muslim countries.

One week after

inauguration, he indeed signed an Executive Order banning travel from seven Muslim countries.
Its text was filled with pernicious stereotypes about Islam—ones the President had repeatedly
and recently linked directly to Muslims. And now the President has replaced that Order with a
second Order that aims to achieve “the same, basic policy outcome for the country,” see Mot. for
TRO/Prelim. Inj., Dkt. No. 95 (Pls.’ Mot.) at 8, with tweaks aimed at avoiding judicial review, as
well as post-hoc rationalization that—after weeks of research by the executive branch—is
remarkably thin and contradicted by the government’s own reports.
The evidence of improper purpose in this case is overwhelming and undisputed. The
government simply asks the Court to disregard this mountain of evidence and defer to the
Order’s bare recital of security needs. Settled law requires otherwise.
There are some goals the Constitution simply does not allow.

Banning Muslim

immigration, even imprecisely, is one of them. The Court should enjoin the Order in its entirety.
ARGUMENT
I.

THE PLAINTIFFS HAVE STANDING.

A.

The Organizational Plaintiffs Have Standing.
As extensively discussed previously,1 the Executive Orders have forced IRAP to divert

significant resources away from its core mission in order to, among other things, find alternative

1

See Mot. for Prelim. Inj. on § 5(d), Dkt. No. 64 p. 20-24; Mot. for TRO/Prelim. Inj., Dkt. No.
95 p. 36-37; Pls.’ Reply, Dkt. No. 98 p. 4-5.

1

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routes to safety for its hundreds of clients;2 educate its clients and pro bono attorneys about such
alternative routes and the effects of the Orders; represent clients unlawfully detained; and
respond to hundreds of emails concerning the Executive Orders. See 2d Heller Decl. ¶¶ 8-13,
J.R. 3-5. Unlike the “mere expense” at issue in Lane v. Holder, 703 F.3d 668, 675 (4th Cir.
2012), these actions involve a significant reorientation of IRAP’s personnel and other resources,
have undercut IRAP’s core mission, and have “perceptibly impaired” IRAP’s mission by forcing
it to scale back its representation in other cases. Id. at 674 (quoting Havens Realty Corp. v.
Coleman, 455 U.S. 363, 379 (1982)); see 2d Heller Decl., ¶ 8-12, J.R. 3-5.
HIAS, too, has been injured by the Orders, in the form of significant, concrete financial
losses caused by the drastic reduction in refugee admissions.3 See Exodus Refugee Immigration,
Inc. v. Pence, 165 F. Supp. 3d 718, 732 (S.D. Ind. 2016) (“The loss of funds for social services
[that a refugee resettlement agency] provides its Syrian refugee clients, and will provide in the
near future, is an injury” for Article III purposes.).4 The basis of HIAS’s standing is not, as the
government contends, that HIAS is legally entitled to resettle a specific number of refugees. It is
that the Executive Orders have caused crippling financial harm to HIAS and harm to its clients in
the form of delay in entry to the United States, as well as opprobrium and stigmatization based

2

Moreover, each client who is diverted from USRAP or frozen therein represents a waste of
hundreds of hours of legal representation over many years spent navigating USRAP.
3

See Mot. for Prelim. Inj. on § 5(d), Dkt. No. 64 p. 20-24; Mot. for TRO/Prelim. Inj., Dkt. No.
95 p. 36-37; Pls.’ Reply, Dkt. No. 98 p. 5-6.
4

The government’s attempt to distinguish Exodus is unavailing. See Opp’n to Mot. for
TRO/Prelim. Inj., Dkt. No. 122 (Opp.) at 14-15 & n.8. In form and function, HIAS is identical
to the Exodus plaintiff: Both are resettlement agencies that provide services to refugees who are
already resettled in the United States and to refugees who will be resettled in the future based on
the State Department’s projections. Both are “economically harmed” by the withholding of
federal funds for the social services they provide to their clients, and “[t]his loss of federal funds
is detrimental to the programming [they] can provide to [their] clients.” 165 F. Supp. 3d at 730.

2

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on their religion. These are concrete harms redressable by the Court, and so HIAS has Article III
standing.
IRAP and HIAS also have standing to vindicate the rights of their clients.

The

government’s only argument specific to third-party standing is that IRAP’s and HIAS’s clients
have “no legally protected interests”5 because they are “unadmitted and nonresident alien[s].”
Opp. 14 (citation omitted). It ignores that many of these clients are in the United States, and are
seeking to be reunited with family members abroad. See Hetfield Decl. ¶¶ 28-37, J.R 23-26; 1st
Heller Decl. ¶¶ 5, 21-26, J.R. 27, 32-34; 2d Heller Decl. ¶ 27, J.R. 9-10. The government does
not dispute that these individuals have constitutional rights, or that IRAP and HIAS meet the
other elements for third-party standing. See Powers v. Ohio, 499 U.S. 400, 410-11 (1991);
Exodus, 165 F. Supp. 3d at 730-33; Pls.’ Reply, Dkt. No. 90 p. 4-7.
Contrary to the government’s claims, MESA’s injuries are traceable to the Executive
Order and are not speculative. First, it claims that MESA’s decline in applications to participate
in its conference could not have been caused by the March 6 Order, because of the February 15
deadline for submissions to the conference. See Opp. 11. This ignores the fact that the revised
Order’s operative ban was also part of the January 27 Order. Second, it points out that the
annual conference is slated to take place outside of the 90-day period. See Opp. 11. But the ban
may still make it impossible for some individuals to get visas in time and complete other
arrangements necessary to attend the conference.6 Moreover, the government does not (and

5

Doe v. Sebelius, 676 F. Supp. 2d 423, 429 (D. Md. 2009) (cited Opp. 14), involved fetuses, not
individuals abroad.
6

For example, an Iranian MESA member had concrete plans to attend the meeting, but she will
be unable to do so unless the travel ban is lifted. Baron Decl., Dkt. No. 95-3 ¶ 5, J.R. 37. MESA
also has many U.S.-based faculty members who will be unable to exchange ideas and scholarship

3

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cannot) assert that the Order’s “pause” will dissipate after 90 days. To the contrary, Defendants
have given every indication that portions of the ban are likely to continue indefinitely, and may
even expand. See, e.g., Revised Order § 2(e), (f) (contemplating extension and expansion);
Hausman Decl. Ex. L, J.R. 150-51 (Daniella Diaz, Kelly: There are “13 or 14” more countries
with questionable vetting procedures, CNN.com, Mar. 7, 2017) (Secretary Kelly stating that,
even after the Order’s initial ban expires, “there will be minimum citizens from those countries
that visit our country”). This ongoing cloud of uncertainty is disrupting MESA’s ability to
organize its conference and fulfill its mission as an organization. Baron Decl. ¶¶ 11-13, J.R. 3940.7
B.

The Individual Plaintiffs Have Standing.
The government fundamentally misapprehends the harms that form the basis of the

individual Plaintiffs’ standing, and accordingly, its arguments miss the mark. The individual
Plaintiffs’ injuries stem from the discriminatory delays the Executive Orders have caused, and
will continue to cause, in Plaintiffs’ reunification with their loved ones. Such delay constitutes
Article III injury.

Indeed, in arguing on before the Ninth Circuit that Washington lacked

standing, the government noted that individuals like the plaintiffs would have standing. See Oral
Arguments Before the U.S. Court of Appeals for the Ninth Circuit, State Of Washington, et al., v.
Donald J. Trump, et al., 2017 WLNR 4070578 (conceding that “a U.S. citizen with a connection

with potential students outside the U.S. affected by the Orders, harming these members’
pedagogical and academic work. Id. ¶ 8, J.R. 38.
7

The government argues that the organizational plaintiffs in this case only have standing to
challenge certain sections (i.e. MESA can only challenge the 90-day ban, HAIS and IRAP can
only challenge the refugee provisions). This argument ignores the fact that all of these
Organizational plaintiffs have either members, Baron Decl., Dkt. No. 95-3 ¶ ¶¶11, J.R. 39, or
clients, 2d Hetfield Decl., ¶ 37, J.R. 15-16, who are Muslim and who will be harmed by the
stigmatic effects of an executive order that was intended to discriminate against their faith.

4

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to someone seeking entry” would have standing and “across the country there are many lawsuits
where there is clearly is standing” brought by “people impacted by this order”). See also LAVAS
v. Dep’t of State, 45 F.3d 469, 471 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1
(1996) (“[T]he State Department’s conduct prolongs the separation of immediate family
members . . . . We have previously found injury in fact where the plaintiffs were far less
aggrieved than in the case at bar.”). Plaintiffs are lawful permanent residents and U.S. citizens
with protected constitutional rights, and the delay in the processing of their petitions for their
loved ones, for no other reason than their religion and nationality, gives rise to a cognizable
Article III injury.
Moreover, the government’s reliance on Newdow to challenge Plaintiffs’ standing for
their Establishment Clause claim is misplaced. See Opp. 17 (citing Newdow v. Lefevre, 598 F.3d
638 (9th Cir. 2010)).

Cases addressing whether plaintiffs are personally affected by the

government’s general promotion of religion, like Newdow, are qualitatively distinct from
Establishment Clause challenges to government action that singles out one faith—the individual
plaintiffs’ faith—for opprobrium and disfavored treatment.

Here, Plaintiffs challenge an

Executive Order that is unprecedented not only in its scope, but also its many procedural and
substantive irregularities, its blatant targeting and negative stereotyping of Muslims, and the
obvious animus motivating it. See Pls.’ Mot. at 6-17. The Executive Order “target[s] and
condemn[s] a specific religion,” Islam, and that disapprobation has impaired the way Plaintiffs
lead their everyday lives and directly resulted in disfavored treatment of Plaintiffs and their loved
ones. Awad v. Ziriax, 670 F.3d 1111, 1122-23 (10th Cir. 2012); see also, e.g., Catholic League
for Religious and Civil Rights v. City & Cty. of San Francisco, 624 F.3d 1043, 1048 (9th Cir.
2010) (“It would be outrageous if the government . . . could condemn the religion of its . . .

5

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citizens, yet those citizens could not defend themselves in court against their government’s
preferment of other religious views.”). In subjecting the adherents of Islam to differential
treatment and associating them with terrorism, violent extremism, hatred, and bigotry, the Orders
condemn Islam and directly inflict injuries on Plaintiffs that support their standing.
C.

The Plaintiffs’ Claims Are Ripe.
The government argues that because the Order contains a discretionary waiver provision,

the individual plaintiffs’ claims cannot be ripe “unless and until they seek and are denied a
waiver.” See Opp. 16-17 (citing Revised Order, § 3(c)). But the imposition of the waiver
procedure itself makes their claims ripe. The individual Plaintiffs’ loved ones are banned by the
Order. The only way they can surmount the ban is by obtaining a waiver. When an “additional
hurdle [is] interposed with discriminatory purpose,” the “additional hurdle itself is illegal
whether or not it might have been surmounted.” Jackson v. Okaloosa Cty., 21 F.3d 1531, 1541
(11th Cir. 1994); see also, e.g., United States v. Village of Palatine, 37 F.3d 1230, 1233 n.3 (7th
Cir. 1994) (indicating that a discriminatory intent claim can be ripe under similar circumstances);
Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, 915 F. Supp. 2d 574,
610 (S.D.N.Y. 2013) (ripeness satisfied where plaintiffs claimed that defendant “adopted the
challenged ordinances with a discriminatory purpose,” even though plaintiffs had not sought
permits under the discriminatory ordinances).
Nor does the revised Order expand the availability of waivers beyond the original Order,
as the government maintains. See Opp. 8, 17 (citing Revised Order, §§ 3(c)(iv), 6(c)). The
revised Order still requires that the waiver applicant “demonstrate[] to the officer’s satisfaction
that denying entry during the suspension period would cause undue hardship,” and “that his or
her entry would not pose a threat to national security,” and that the waiver “would be in the

6

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national interest.” Id. § 3(c)(iv) (emphasis added). The revised Order’s list of illustrative
cases—where waivers merely “could be appropriate”—serves if anything to narrow the original
Order’s more open-ended waiver authority. Id. § 3(c). Compare Jan. 27 Order, § 3(g) (allowing
waivers simply “when in the national interest”). Defendants offer no assurance that any plaintiff
will receive a waiver.8
II.

THE EXECUTIVE ORDER VIOLATES THE CONSTITUTION.

A.

The New Order, Like the Old One, Is Unconstitutional Religious Discrimination.
The silences in the government’s opposition speak volumes. The government does not—

and, of course, cannot—deny that the President repeatedly promised to implement a ban on the
entry of members of one particular religion. It does not contest that the extraordinary evidence
of discriminatory intent adduced in this case, as well as the evidence linking the President’s
statements to both the old and new Orders, is more than enough to carry Plaintiffs’ burden to
establish improper purpose under well-established legal principles.

Nor, despite all its

invocations of the President’s purportedly broad powers, does the government contend that if the
President officially acknowledged that he was instituting a Muslim ban (whether partial or total),
he could do so consistent with the Establishment Clause and equal protection.
The government nevertheless argues that the Court cannot or should not look beyond the
text of the Order.

Courts have already roundly rejected that contention, for good reason.

Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017) (“It is well established that evidence

8

The government makes no argument that either of the two elements of ripeness is not satisfied
here. See Opp. 16-17. The ripeness inquiry considers “(1) the fitness of the issues for judicial
decision and (2) the hardship to the parties of withholding court consideration.” Nat’l Park
Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003). Plaintiffs’ facial claims are
clearly fit for review, and they would suffer hardship from the delay and stigma of requesting a
purely discretionary waiver under a policy whose basic purpose is to exclude them. See Alcoa
Power Generating Inc. v. FERC, 643 F.3d 963, 970 (D.C. Cir. 2011).

7

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of purpose beyond the face of the challenged law may be considered.”); Aziz v. Trump, ___ F.
Supp. 3d ___, 2017 WL 580855 at *8 (E.D. Va. Feb. 13, 2017). This is not a contract dispute, in
which “parol” or “extrinsic” evidence is excluded. See Opp. 28, 30.

Whether under the

Establishment Clause or equal protection, a court’s assessment of “whether invidious
discriminatory purpose” is involved “demands a sensitive inquiry into such circumstantial and
direct evidence of intent as may be available.” Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 266 (1977); see also McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 862
(2005); Pls.’ Mot. 5-6, 19. Here, as Plaintiffs have already explained at length, the direct and
circumstantial evidence is overwhelming. Pls.’ Mot. 6-16.
In the face of this evidence, the government contends that the Establishment Clause
directs the Court to look away. Quite the opposite. The question whether government action has
the predominant purpose or effect of advancing or inhibiting religion is examined through the
eyes of a reasonable, objective observer who is aware of the entire context in which the
challenged conduct arose and was implemented. Pls.’ Mot. 18-20. An objective observer could
read the President’s own campaign statements—which, while originally issued some time ago,
the President continues to publish, without modification or explanation, on one of his websites to
this day—and would be aware of the many statements by the President and others explaining that
a nationality-based ban would be adopted as a pretextual way to carry out then-candidate
Trump’s promises. See Pls.’ Mot. 6-8.9

9

As plaintiffs have explained, the outcome is the same whether the Court analyzes this case
under the Lemon or Larson test. Pls.’ Mot. 17-22. The government does not address Larson
beyond suggesting that it requires “explicit” discrimination. Opp. 26. But as Larson recognized,
the “clearest command of the Establishment Clause is that one religious denomination cannot be
officially preferred over another,” and Larson itself addressed a statute that targeted a particular
religion without explicitly naming it. Larson v. Valente, 456 U.S. 228, 244, 255 (1982).

8

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The government’s reliance on McCreary on this score is particularly misplaced.
Rejecting the argument that “true ‘purpose’ is unknowable,” the Court explained that
“[e]xamination of purpose is a staple of statutory interpretation,” and “a key element of a good
deal of constitutional doctrine.” 545 U.S. at 861 (citing, inter alia, equal protection and Free
Exercise case law). Here, taking the President at his word, broadcast on his website and in
nationally televised interviews, hardly amounts to “judicial psychoanalysis of a drafter’s heart of
hearts.” Id. at 862; see also id. (citing “detailed public comments” of a statute’s sponsor as
appropriate objective evidence); id. at 851 (citing statements of a county official and his pastor at
a ceremony); Green v. Haskell County, 568 F.3d 784, 801-02 (10th Cir. 2009) (considering
statements to the press in determining purpose under the Establishment Clause). Under the
Establishment Clause, the reasonable observer at the heart of the Lemon inquiry, Pls.’ Mot. 1920, is deemed aware of all the “openly available data [which] support[s] a common sense
conclusion” that the primary purpose of the order was to target Muslims and that the Order
conveys a message of hostility and disfavor toward the Islamic faith, McCreary, 545 U.S. at
863.10
Moreover, even setting aside this incorrect understanding of the Establishment Clause,
the government does not even attempt to argue that the President’s many statements and the
other highly probative evidence should be ignored under the well-settled principles of equal
protection analysis. See Pls.’ Mot. 5 (explaining that courts examine a wide variety of evidence

10

The government cites Trunk v. City of San Diego, 629 F.3d 1099, 1108 (9th Cir. 2011), in
arguing that the Court should defer to the President’s stated reasons, Opp. 27. But Trunk
recognized that the stated purpose “must be genuine, not a sham,” and examined the legislative
history, the role of advocates, and hundreds of pages of other materials in concluding that
Congress’s purpose was secular. Trunk, 629 F.3d at 1108-09 & n.9. Moreover, neither Trunk,
nor Ehlers-Renzi v. Connelly Sch. of the Holy Child, Inc., 224 F.3d 283, 288 (4th Cir. 2000), also
cited by the government, featured anything close to the evidence of blatant religious
discrimination at issue in this case, and which the government does not seriously dispute.

9

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including contemporaneous statements, disparate impact, and substantive and procedural
departures from normal processes); id. at 22-23 (addressing equal protection); see also id. 6-16
(addressing the evidence falling into the various categories discussed by the Supreme Court);
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 471 (1982) (holding that “despite its facial
neutrality there is little doubt that [an] initiative was effectively drawn” with discriminatory
purpose). The government’s brief has no response, mentioning equal protection just once. Opp.
26 (baldly asserting that “there is no violation of . . . equal protection”).
To the extent the government urges a bright-line rule that campaign statements can never
bear on the purpose of legislation, it is mistaken. See Pls.’ Mot. 7 (citing examples of reliance on
campaign statements and materials). Nor does the fact that this case involves the President place
it beyond the competence of the courts. United States v. Lee, 1 S. Ct. 240, 261 (1882) (“No man
in this country is so high that he is above the law.”).11
Moreover, this case does not involve, and the Court need not address, a passing comment
on the campaign trail or a clear example of campaign puffery.12 Rather, the Court is presented
with a consistent pledge to take discriminatory action; a closely associated Executive Order
issued one week into the term in office; a subsequent order that is acknowledged to be a

11

The government’s reliance on the Nixon cases is misplaced. Nixon v. Fitzgerald, 457 U.S.
731, 754 (1982), involved a damages suit against the President. United States v. Nixon, 418 U.S.
683, 708 (1974), involved core questions of executive privilege not implicated here.
12

To the contrary, and to cite but one source, throughout his campaign and continuing to the
present, President Trump has portrayed Muslims as posing categorical terroristic threats, and has
done the same with regard to refugees, who he seemingly equates with Muslims. See, e.g.,
https://www.nilc.org/issues/litigation/trump-tweets-with-muslim-muslims/. 

10

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continuation of the same intent and policy; and undisputed evidence linking the promise to both
Orders. See Pls.’ Mot. 6-10.13 Such a case is highly unusual, if not entirely unique.14
Contrary to the government’s argument that the text of the Order is neutral and secular, in
fact it remains riddled with indicia of discriminatory purpose. Pls.’ Mot. 9-11 & n.11. The
government protests that the Order’s invocation of “honor killings” and “radicalization” could
refer to people of any faith, Opp. 26 n.18, despite the clear message and evidence that the terms
were not used in a neutral way, see Pls.’ Mot. 9-10 & nn.11, 12. The Supreme Court has already
rejected the idea of a purpose inquiry “so naive that any transparent claim to secularity would
satisfy it,” cutting “context out of the enquiry, to the point of ignoring history, no matter what
bearing it actually had on the significance of current circumstances.” McCreary, 545 U.S. at
863-64.15 Likewise, it is well established that disparate impact is an important indication of

13

The Court is also presented with a proffered security purpose that is impossible to square with
the process leading up to the Orders, or with many of their provisions. See id. at 11-14.
Strikingly, the government has made no attempt to explain many of these contradictions and
irrationalities. See Opp. 27-28.

14

Hamdan v. Rumsfeld, 548 U.S. 557 (2006), cited by the government, involved no claim of
improper purpose, but rather the Court’s willingness to assume it would defer to certain findings
made by the President (but not to findings he had not made), id. at 623 & n.52. The
government’s other cases are likewise inapposite. See Republican Party of Minn. v. White, 536
U.S. 765 (2002) (First Amendment claim against restriction on candidate speech); Glassman v.
Arlington Cty., 628 F.3d 140, 147 (4th Cir. 2010) (declining to consider series of emails sent by
church members who were not government decisionmakers); Weinbaum v. City of Las Cruces,
541 F.3d 1017, 1031 (10th Cir. 2008) (artist’s inspiration or intent not probative of government’s
decision to display artwork); Modrovich v. Allegheny Cty., 385 F.3d 397, 411-12 (3d Cir. 2004)
(declining to consider evidence of motivation of County residents and County officials not
involved in decision at issue); Professionals & Patients for Customized Care v. Shalala, 56 F.3d
592 (5th Cir. 1995) (APA challenge, no allegation of improper purpose); Phelps v. Hamilton, 59
F.3d 1058, 1062, 1068 (10th Cir. 1995) (prosecutor’s statements during campaign trail, allegedly
part of a political vendetta, did not establish bad faith enforcement for purposes of exception to
Younger abstention).

15

The government suggests that its elimination of certain egregious aspects of the original order,
in response to its loss in the Ninth Circuit, cures any constitutional violation. Opp. 26, 30, 32.

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discrimination. See Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 487 (1997). Contrary to the
government’s view, Opp. 27, it is not necessary to establish either that all members or only
members of a disfavored group are impacted—only that the action bears more heavily on that
group. Arlington Heights, 429 U.S. at 266; Aziz, 2017 WL 580855, at *9 (“It is a discriminatory
purpose that matters, no matter how inefficient the execution.”). The government does not deny
that the Order has a wildly disproportionate impact, overwhelmingly excluding Muslims from
the United States.
B.

The Order Is Subject to Normal Constitutional Review.
The government yet again argues that the Order need only state a “facially legitimate and

bona fide reason” to pass constitutional muster. Opp. 29 (quoting Kleindienst v. Mandel, 408
U.S. 753, 770 (1972)); see Washington, 847 F.3d at 1162 (rejecting this argument); Aziz, 2017
WL 580855, at *8 (same). Even if Mandel applies, but see Pls.’ Br. 29-30 (explaining why it
does not), it poses no obstacle to this Court’s review, because Mandel requires that the
government’s neutral reasons be “bona fide,” Mandel, 408 U.S. at 770; see Pls.’ Mot. at 28-29.
“[I]f the proffered facially legitimate reason has been given in bad faith, it is not bona fide.”
Aziz, 2017 WL 580855, at *8 (citations and internal quotation marks omitted).

The

government’s brief says nothing about Mandel’s “bona fide” requirement. See Opp. at 29. It
argues that the Court should not “look behind the President’s facially legitimate reasons,” but

As already noted, McCreary speaks directly to such an attempt to clean up a tainted action. Pls.’
Mot. 18-20. As in McCreary, that the government is “simply reaching for any way” to save an
unconstitutional action is clear from the long history of improper purpose of this Order; the
continuing indicia of improper purpose in the new version; and the failure of the new version,
like the old one, to effectuate it purported purpose. Id. at 871-73. With respect to the third factor
in particular, the evidence all indicates that the new Order, like the old one, will not advance its
purported national security goals. See Pls.’ Mot. 14-16; Br. of Nat’l Security Officials as Amici
Curiae in Supp. of Pls., Dkt. No. 123-1; see also Amicus Brief of Interfaith Coalition, Dkt. No.
99-1.

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that articulation reads the “bona fide” prong out of existence. As Justice Kennedy explained in
Din, courts may examine “additional factual details beyond” the government’s neutral
explanation when there is an “affirmative showing of bad faith.” Kerry v. Din, 135 S. Ct. 2128,
2141 (2015) (Kennedy, J., concurring in the judgment); see Am. Acad. of Religion v. Napolitano,
573 F.3d 115, 137 (2d Cir. 2009) (noting that “a well supported allegation of bad faith” would
“render the decision not bona fide”). Here, Plaintiffs have identified voluminous evidence of bad
faith. See Pls.’ Mot. 6-16. Nothing the government has cited requires the Court to look away.
In any case, the Mandel standard does not apply to “the President’s promulgation of
sweeping immigration policy.” Washington, 847 F.3d at 1162 (emphasis omitted) (holding that
the original Executive Order was “plainly not subject to the Mandel standard”).

Mandel

involved executive action in a very different context, where individual consular officers denied
visas under standards enacted by Congress. See Mandel, 408 U.S. at 770 (applying “facially
legitimate and bona fide” standard to a decision not to waive inadmissibility); see also Din, 135
S. Ct. at 2140 (Kennedy, J., concurring in the judgment) (explaining that the Mandel standard
applies to “an executive officer’s decision denying a visa”); id. (noting that the Mandel “decision
was based upon due consideration of the congressional power to make rules for the exclusion of
aliens”) (emphasis added); cf. Fiallo v. Bell, 430 U.S. 787 (1977) (case involving statutory
scheme, not executive action, cited in Opp. at 29).

Mandel’s reasons for employing that

standard—that it would be cumbersome and indeterminate for courts, “in each case,” to rebalance the interests on both sides of visa denials, 408 U.S. at 769—do not apply to categorical
decisionmaking by the President.

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III.

THE EXECUTIVE ORDER VIOLATES IMMIGRATION LAW.
The Order violates § 202(a)(1)(A) of the INA, 8 U.S.C. § 1152(a)(1)(A), which prohibits

nationality discrimination in visa issuance. The government acknowledges that 30 percent of the
visas it issues to nationals of the seven banned countries are immigrant visas, Opp. 21, which are
plainly encompassed in the statute’s command that “no person shall receive any preference or
priority or be discriminated against in the issuance of an immigrant visa because of the person's
race, sex, nationality, place of birth, or place of residence.”

It argues, however, that

nonimmigrant visas are not addressed by § 202, so it is permitted to discriminate with respect to
those persons, and that in any event §§ 212(f) and 215(a) trump § 202 in this context. Neither
claim is correct.
In Olsen v. Albright, 990 F. Supp. 31 (D.D.C. 1997), one of the few cases addressing §
202, the court relied on the statute to find that discrimination in the issuance of nonimmigrant
visas was unlawful, and noted that even the government did not take the position “that the
Consulate is permitted to engage in discrimination on the basis of race, ethnicity, or
nationality.”16 Read in the context of the “bold anti-discriminatory principles” that fill the
legislative history, id. at 37, § 202 prohibits nationality discrimination with respect to both
immigrant and nonimmigrant visas.17
Moreover, contrary to the government’s suggestion, Plaintiffs have never contended that
§ 202’s ban on visa issuance implicitly repealed § 212(f), 8 U.S.C. § 1182(f), or § 215(a), 8

16

The government cites Olsen only to note that it did not involve an exercise of Presidential
power under § 212(f) or § 215(a). Opp. 23 n.14.
17

Section 202(a)(1)(B), which exempts “procedures for the processing of immigrant visa
applications,” does not alter this conclusion: a ban on visa issuance, even with a discretionary
waiver exception, cannot be recast as a procedural tweak.

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U.S.C. § 1185(a).18

Indeed, the provisions are consistent.

The government elsewhere has

reconciled the provisions by arguing that because § 202 applies only to the issuance of
immigrant visas, it does not apply “to the President’s restrictions on entry.” Washington v.
Trump, No. 17-35105, Gov’t Reply in Supp. of Emergency Mot. for Stay Pending Appeal, Dkt.
No. 70 p. 4. The government has abandoned that reading here, now that the Executive Order
plainly regulates the issuance of such visas.
Indeed, nationals of the six banned countries with valid visas will remain free to enter
despite the ban. See Order Sec. 3(a). Instead, the Order bans the issuance of new visas to
nationals of those countries, directly contravening § 202(a)(1)(A).
In any case, §§ 212(f) and 215(a) cannot be read to entirely displace the INA’s scheme
for the allocation of visas and the admission of noncitizens. Although the President has in the
past decided that “it is in the foreign policy interests of the United States to suspend the entry” of
limited classes of noncitizens, Opp. 25; Proclamation No. 7062, 63 Fed. Reg. 2871, Jan. 14,
1998, such a determination has never been so broad as to render irrelevant Congress’s careful
statutory scheme. Past orders under 212(f) and 215(a) have typically suspended the entry not of
all foreign nationals from a given country, but rather of specific categories of noncitizens who
have contributed to a specific, harmful situation abroad. For example, President Bush suspended
the entry “of persons responsible for actions that threaten Zimbabwe’s democratic institutions.”
Proclamation 7524, 67 Fed. Reg. 8857, Feb. 22, 2002 (emphasis added); see also, e.g., Executive
Order 13687, 80 Fed. Reg. 819, Jan. 2, 2015 (suspending the entry of certain noncitizens with
connections to the North Korean government); cf. Kate M. Manuel, Executive Authority to
Exclude Aliens: In Brief, Congressional Research Service, Jan. 23, 2017. And, of course, no

18

Section 215(a) allows the President prescribe reasonable rules “for any alien to depart from or
enter . . . the United States.”

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Court has suggested that a sweeping visa-issuance ban based on national origin would be
consistent with § 202, merely because it was issued under § 212(f) or 215(a).
Finally, the government does not address Plaintiffs’ argument that § 212(f) cannot be
read to authorize discrimination on the basis of religion. See Pls.’ Mot. 27-28. That is an
independent reason that the Executive Order fails on statutory grounds.
IV.

THE PLAINTIFFS FACE IRREPARABLE HARM.
The government ignores the voluminous evidence of irreparable harm that Plaintiffs have

shown is either already occurring or would occur if the March 6 Order were permitted to take
effect. Its only rebuttal is to assert that because the individual Plaintiffs have already been
waiting significant periods, more delay—even if caused by unconstitutional discrimination
against Muslims—cannot be irreparable. See Opp. 33. That contention is unsupported by law,
facts, or common sense. Cf. Covenant Media of SC, LLC v. City of N. Charleston, 493 F.3d 421,
428 (4th Cir. 2007) (holding that “the injury of not having an application processed timely is
distinct from the injury of ultimate denial of that application”). Damages cannot adequately
address such family separation.

To the contrary, for Plaintiffs and their loved ones, any

additional delay in this already-lengthy process is irreparable, particularly given the conditions
abroad many are living in, the dangers they face there, the family unification that is at stake, the
harm to organizational plaintiffs’ operations, the threat to their very existence, and the dignitary
harm of enduring delay born of anti-Muslim animus. See, e.g., Decl. of Jane Doe #2 ¶ 7, J.R. 5657; Hetfield Decl. ¶¶ 13-15, J.R. 16-17 (describing office closures and layoffs); see also Centro
Tepeyac v. Montgomery Cty., 722 F.3d 184, 191 (4th Cir. 2013) (noting that the “loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury”).

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V.

A TEMPORARY RESTRAINING ORDER IS IN THE PUBLIC INTEREST.
The government would have this Court find that the public interest weighs against the

issuance of an injunction based solely on the government’s conclusory statements about national
security, without a scintilla of evidence. The Ninth Circuit has already rejected this argument in
the context of the January 27 Order, and the President’s addition of boilerplate findings in the
revised March 6 Order does not warrant a different outcome. See Washington, 847 F.3d at 1168
(finding lack of irreparable injury where “the Government has done little more than reiterate” its
general interest in fighting terrorism); see also Br. of Nat’l Security Officials as Amici Curiae in
Supp. of Pls., Dkt. No. 123-1 (brief of 40 former national security, foreign policy and
intelligence officials stating that the revised executive order cannot be justified on national
security or foreign policy grounds).

The public interest does not favor permitting an

unconstitutional executive order to take effect.
VI.

THE COURT SHOULD ENJOIN THE EXECUTIVE ORDER ON ITS FACE.
The government is wrong to suggest that challenges to a facially discriminatory policy

must be brought on an as-applied basis. See Opp. 39. Exactly the opposite is true: an action
motivated by religious animus is unconstitutional in all of its applications. See Santa Fe Indep.
Sch. Dist. v. Doe, 530 U.S. 290, 314, 317 (2000).
In arguing for a narrow injunction, Opp. 39-40, the government also fails to address the
Ninth Circuit’s recent conclusion that “a fragmented immigration policy would run afoul of the
constitutional and statutory requirements for uniform immigration law and policy.” Washington,
847 F.3d at 1166-67 (9th Cir. 2017) (declining to stay nationwide injunction); see Texas v.
United States, 809 F.3d 134, 187-88 (5th Cir. 2015) (affirming nationwide preliminary
injunction), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016). Limiting the injunction’s

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Case 8:17-cv-00361-TDC Document 130 Filed 03/14/17 Page 20 of 23

geographical scope could also cause disruption and confusion on account of “the nation’s
multiple ports of entry and interconnected transit system.” Washington, 847 F.3d at 1167. Once
again, the government has proposed no “workable alternative.” Id.
Finally, as explained in Plaintiffs’ other motion for preliminary injunction, a narrow
remedy would fail to afford them complete relief. See Dkt. No. 98, at 19-20. Harmon v.
Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (explaining that when courts find
government action unlawful, “the ordinary result is that the rules are vacated—not that their
application to the individual petitioners is proscribed”); Doe v. Rumsfeld, 341 F. Supp. 2d 1, 1718 (D.D.C. 2004) (observing that “[t]he Fourth, Fifth, Ninth, and D.C. Circuits have held that an
injunction can benefit parties other than the parties to the litigation” and collecting cases).
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court enjoin the
government from enforcing the Executive Order.
Dated: March 14, 2017
Respectfully submitted,

Justin B. Cox (Bar No. 17550)
National Immigration Law Center
1989 College Ave. NE
Atlanta, GA 30317
Tel: [phone]
Fax: [phone]
[e-mail]
Karen C. Tumlin
Nicholas Espíritu
Melissa S. Keaney
Esther Sung
National Immigration Law Center
3435 Wilshire Boulevard, Suite 1600
Los Angeles, CA 90010

/s/ Omar Jadwat
Omar C. Jadwat
Lee Gelernt
Hina Shamsi
Hugh Handeyside
Sarah L. Mehta
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Case 8:17-cv-00361-TDC Document 130 Filed 03/14/17 Page 21 of 23

Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

[e-mail]
Cecillia D. Wang
Cody H. Wofsy
American Civil Liberties Union
Foundation
39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
David Cole
Daniel Mach
Heather L. Weaver
American Civil Liberties Union
Foundation
915 15th Street NW
Washington, DC 20005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
/s/ David Rocah
David Rocah (Bar No. 27315)
Deborah A. Jeon (Bar No. 06905)
Sonia Kumar (Bar No. 07196)
Nicholas Taichi Steiner (Bar
No.19670)
American Civil Liberties Union
Foundation of Maryland
3600 Clipper Mill Road, Suite 350
Baltimore, MD 21211
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Counsel for Plaintiffs

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Case 8:17-cv-00361-TDC Document 130 Filed 03/14/17 Page 23 of 23

CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of March, 2017, I caused a PDF version of the
foregoing document to be electronically transmitted to the Clerk of the Court, using the
CM/ECF System for filing and for transmittal of a Notice of Electronic Filing to all CM/ECF
registrants.
Dated: March 14, 2017

Respectfully submitted,
/s/ Omar Jadwat
Omar C. Jadwat

21