International Refugee Assistance Project et al v. Trump et al
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 3/15/2017. (aos, Deputy Clerk)
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 1 of 43
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
ASSISTANCE PROJECT, a project of the
Urban Justice Center, Inc., on behalf of itself
and its clients,
HIAS, INC., on behalf of itself and its clients,
MIDDLE EAST STUDIES ASSOCIATION of
North America, Inc., on behalf of itself and its
IBRAHIM AHMED MOHOMED,
JOHN DOES Nos. 1 & 3, and
JANE DOE No.2,
Civil Action No. TDC-17-0361
DONALD J. TRUMP, in his official capacity
as President of the United States,
DEPARTMENT OF HOMELAND
DEPARTMENT OF STATE,
OFFICE OF THE DIRECTOR OF
JOHN F. KELLY, in his official capacity as
Secretary of Homeland Security,
REX W. TILLERS ON, in his official capacity
as Secretary of State, and
MICHAEL DEMPSEY, in his official capacity
as Acting Director of National Intelligence,
On March 6, 2017, President Donald J. Trump issued an Executive Order which bars,
with certain exceptions, the entry to the United States of nationals of six predominantly Muslim
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 2 of 43
countries, suspends the entry of refugees for 120 days, and cuts by more than half the number of
refugees to be admitted to the United States in the current year. This Executive Order follows a
similar Executive Order that is currently the subject of multiple injunctions
premised on the conclusion that it likely violates various provisions
of the United States
Pending before the Court is Plaintiffs' Motion for a Temporary Restraining Order
or a Preliminary Injunction, filed on March 10,2017.
At issue is whether the President's revised
Executive Order, set to take effect on March 16, 2017, should likewise be halted because it
violates the Constitution and federal law.
For the reasons set forth below, the Motion is
GRANTED IN PART and DENIED IN PART.
On January 27, 2017, President Trump issued Executive Order 13,769, "Protecting the
Nation from Foreign Terrorist Entry into the United States" ("First Executive Order" or "First
Order"), 82 Fed. Reg. 8977 (Jan. 27, 2017). On February 7, 2017, Plaintiffs filed a Complaint
alleging that the First Executive
to the United States Constitution,
Clause of the First
U.S. Const. amend. I; the equal protection
component of the Due Process Clause of the Fifth Amendment, U.S. Const. amend. V; the
Freedom Restoration Act, 42 U.S.C.
1521-1524 (2012); and the Administrative
1101-1537 (2012); the Religious
to 2000bb-4 (2012); the Refugee Act, 8 U.S.C.
Procedure Act ("APA"), 5 U.S.C.
On March 6, 2017, in the wake of several successful legal challenges to the First
Executive Order, President Trump issued Executive Order 13,780 ("Second Executive Order" or
"Second Order"), which bears the same title as the First Executive Order. 82 Fed. Reg. 13209
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 3 of 43
(Mar. 9, 2017). The Second Executive Order, by its own terms, is scheduled to go into effect
and supplant the First Executive Order on March 16, 2017.
On March 10, 2017, Plaintiffs amended their Complaint to seek the invalidation of the
Second Executive Order.
Plaintiffs substituted certain individual plaintiffs and added an
Their causes of action remain the same. That same day, Plaintiffs filed
the pending Motion, seeking to enjoin the Second Executive Order in its entirety before it takes
Defendants have received notice of the Motion and filed a brief in opposition to it on
After Plaintiffs filed a reply brief on March 14,2017, the Court held a hearing
on the Motion on March 15,2017.
With the matter fully briefed and argued, the Court construes
the Motion as a Motion for a Preliminary Injunction.
and conclusions of law and rules on the Motion.
The Court now issues its findings of fact
FINDINGS OF FACT
Executive Order 13,769
The stated purpose of the First Executive Order is to "protect the American people from
terrorist attacks by foreign nationals admitted to the United States." 1st Order Preamble. To that
end, the First Executive Order states that the United States must be "vigilant during the visaissuance process," a process that "plays a crucial role in detecting individuals with terrorist ties
and stopping them from entering the United States."
therefore mandates, as relevant here, two courses of action.
1. The First Executive Order
The first, set forth in Section 3
On February 22,2017, Plaintiffs filed a Motion for a Preliminary Injunction of S 5(d) of the
Executive Order, ECF No. 64, requesting that the Court enjoin a specific provision of the First
Executive Order. With the agreement of the parties, the Court set a briefing and hearing
schedule extending to March 28, 2017. The Court will resolve that Motion, which the parties
have agreed should be construed to apply to the successor provision of the Second Executive
Order, in accordance with the previously established schedule.
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 4 of 43
of Issuance of Visas and Other Immigration Benefits to Nationals of
Countries of Particular Concern," invokes the President's authority under 8 U.S.C.
suspend for 90 days "the immigrant and nonimmigrant entry into the United States of aliens"
from the countries of Iraq, Iran, Libya, Sudan, Somalia, Syria, and Yemen as "detrimental to the
interests of the United States."
3(c). Each of these countries has a predominantly
Muslim population, including Iraq, Iran, and Yemen which are more than 99 percent Muslim. In
addition to providing certain exceptions for diplomatic travel, the provision contains exceptions
on a "case-by-case basis" when such an exception is "in the national interest," a term not defined
elsewhere in the Order. 1st Order
During this 90-day period, the Secretary of Homeland
Security, the Secretary of State, and the Director of National Intelligence are to "immediately
conduct a review to determine the information needed from any country" to assess whether an
individual from that country applying for a "visa, admission, or other benefit ... is not a security
or public-safety threat" and provide a report on their review to the President within 30 days of
the issuance of the Order.
The second course of action relates to refugees. As set out in Section 5(d), the President
ordered, pursuant to
1182(f), that "the entry of more than 50,000 refugees in fiscal year 2017
would be detrimental to the interests of the United States" and thus suspended the entry of any
refugees above that figure.
The Order also immediately suspended the U.S.
Refugee Admissions Program ("USRAP") for 120 days and imposed an indefinite ban on the
entry of refugees from Syria.
The Order further required changes to the refugee screening
process "to prioritize refugee claims made by individuals on the basis of religious-based
persecution, provided that the religion of the individual is a minority religion in the individual's
country of nationality."
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The drafting process for the First Executive Order did not involve traditional interagency
review by relevant departments and agencies.
In particular, there was no consultation with the
Department of State, the Department of Defense, the Department of Justice, or the Department of
When the Order was issued in the early evening of Friday, January 27,
2017, the State Department immediately stopped conducting visa interviews of, and processing
visa applications from, citizens of any of the seven banned countries.
Between 60,000 and
100,000 visas have been revoked.
Legal Challenges to the First Executive Order
The First Executive Order prompted numerous legal challenges, including an action filed
by the State of Washington and the State of Minnesota in the United States District Court for the
Western District of Washington based on the Due Process, Establishment, and Equal Protection
Clauses of the Constitution that resulted in a nationwide temporary restraining order against
several sections of the First Order. On February 9, 2017, the United States Court of Appeals for
the Ninth Circuit, construing the order as a preliminary injunction, upheld the entry of the
Washington v. Trump, 847 F.3d 1151, 1165-66 (9th Cir. 2017). Although it did not
reach the Establishment
Clause claim, the Ninth Circuit noted that the asserted claim raised
"serious allegations" and presented "significant constitutional questions."
Id. at 1168.
February 13,2017, the United States District Court for the Eastern District of Virginia found that
plaintiffs had shown a likelihood of success on the merits of an Establishment Clause claim and
issued an injunction against enforcement of Section 3(c) of the First Executive Order as to
Virginia residents or students enrolled a Virginia state educational institution. Aziz v. Trump, --F. Supp. 3d ---, NO.1 :17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13,2017).
remain in effect.
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Executive Order 13,780
On March 6, 2017, President Trump issued a revised Executive Order, to become
effective on March 16, 2017, at which point the First Executive Order will be revoked. 2d Order
13, 14. The Second Executive Order reinstates the 90-day ban on travel for citizens ofIran,
Libya, Somalia, Sudan, Syria, and Yemen ("the Designated Countries"), but removes Iraq from
the list based on its recent efforts to enhance its travel documentation procedures and ongoing
cooperation between Iraq and the United States in fighting ISIS. The scope of the ban, however,
was narrowed expressly to respond to "judicial concerns."
The Order states
that it applies only to individuals outside the United States who did not have a valid visa as of the
issuance of the First Executive Order and who have not obtained one prior to the effective date
of the Second Executive Order. In addition, the travel ban expressly exempts lawful permanent
residents ("LPRs"), dual citizens traveling under a passport issued by a country not on the
banned list, asylees, and refugees already admitted to the United States. The Second Executive
Order also provides a list of specific situations in which a case-by-case waiver "could be
The refugee provisions continue to suspend USRAP for 120 days and to reduce the
number of refugees to be admitted in fiscal year 2017 to 50,000.
However, the minority religion
preferences in refugee applications and the complete ban on Syrian refugees have been removed
Unlike the First Executive
Order, the Second Executive
information relevant to the national security concerns underlying the decision to ban the entry of
citizens of the Designated Countries.
The Second Order notes that "the conditions in these
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 7 of 43
countries present heightened threats" because each country is "a state sponsor of terrorism, has
been significantly compromised by terrorist organizations, or contains active conflict zones." 2d
It provides information
from the State Department's
Country Reports on
Terrorism 2015 identifying Iran, Sudan, and Syria as longstanding state sponsors of terrorism
and describing the presence of members of certain terrorist organizations within those countries.
The asserted consequences of these conditions are that the governments of these nations are less
willing or less able to provide necessary information for the visa or refugee vetting process, and
there is a heightened chance that individuals from these countries will be "terrorist operatives or
In light of these factors, the Second Order concludes, the
United States is unable "to rely on normal decision-making
procedures about travel" as to
individuals from these nations, making the present risk of admitting individuals from these
countries "unacceptably high." 2d Order
l(b)(ii), (t). The Second Order expressly disavows
that the First Executive Order was motivated by religious animus.
The Second Order also states that "Since 200 I, hundreds of persons born abroad have
been convicted of terrorism-related
crimes in the United States" and references two Iraqi
refugees who were convicted of terrorism-related
offenses and a naturalized U.S. citizen who
came to the United States from Somalia as a child refugee and has been convicted of a plot to
detonate a bomb at a Christmas tree lighting ceremony.
I (h). The Second Order
further states that more than 300 persons who entered the United States as refugees are currently
the subjects of counterterrorism investigations.
It does not identify any instances of individuals
who came from Iran, Libya, Sudan, Syria, or Yemen engaging in terrorist activity in the United
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 8 of 43
The same day that the Second Executive Order was issued, Attorney General Jeff
Sessions and Secretary of Homeland Security John Kelly submitted a letter to the President
recommending a temporary suspension on the entry to the United States of nationals of certain
countries so as to facilitate a review of security risks in the immigration system, for reasons that
largely mirror the statements contained in the Second Executive Order.
Public Statements About the Executive Orders
On December 7, 2015, then-presidential candidate Donald Trump posted a "Statement on
Preventing Muslim Immigration" on his campaign website in which he "call [ed) for a total and
complete shutdown of Muslims entering the United States until our representatives can figure out
what is going on." J.R. 85.
Trump promoted the Statement on Twitter that same day, stating
that he had "[j]ust put out a very important policy statement on the extraordinary influx of hatred
& danger coming into our country.
We must be vigilant!"
In a March 9, 2016
interview with CNN, Trump professed his belief that "Islam hates us," and that the United States
had "allowed this propaganda to spread all through the country that [Islam) is a religion of
peace." J.R. 255-57.
Then, in a March 22, 2016 Fox Business interview, Trump reiterated his
call for a ban on Muslim immigration,
explaining that his call for the ban had gotten
"tremendous support" and that "we're having problems with the Muslims, and we're having
problems with Muslims coming into the country."
J.R. 261. In a July 24, 2016 interview on
Meet the Press soon after he accepted the Republican
Trump asserted that
immigration should be immediately suspended "from any nation that has been compromised by
J.R. 219. When questioned whether his new formulation was a "rollback" of his
December 2015 call for a "Muslim ban," Trump characterized it instead as an "expansion."
He explained that "[p )eople were so upset when I used the word Muslim," so he was
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 9 of 43
instead "talking territory instead of Muslim."
1.R. 220. On December 21, 2016, when asked
whether a recent attack in Germany affected his proposed Muslim ban, President-Elect Trump
replied, "You know my plans. All along, I've proven to be right. 100% correct." 1.R. 245. In a
written statement about the events, he lamented the attack on people "prepared to celebrate the
Christmas holiday" by "ISIS and other Islamic terrorists [who] continually slaughter Christians
in their communities and places of worship as part of their global jihad." 1.R. 245.
On lanuary 27, 2017, a week after his inauguration,
President Trump stated in an
interview on the Christian Broadcasting Network that the First Executive Order would give
preference in refugee applications to Christians. Referring to Syria, President Trump stated that
"[i]f you were a Muslim you could come in, but if you were a Christian, it was almost
impossible," a situation that he thought was "very, very unfair."
Trump was preparing to sign the First Executive Order later that day, he remarked, "This is the
'Protection of the Nation from Foreign Terrorist Entry into the United States.'
We all know
what that means." 1.R. 142 The day after the Order was issued, former New York City Mayor
Rudolph W. Giuliani appeared on Fox News and asserted that President Trump told him he
wanted a Muslim ban and asked Giuliani to "[s]how me the right way to do it legally." 1.R. 247.
Giuliani, in consultation with others, proposed that the action be "focused on, instead of religion
the areas of the world that create danger for us," specifically "places where there are [sic]
substantial evidence that people are sending terrorists into our country." 1.R.247-248.
In response to the court-issued injunctions against provisions of the First Executive
Order, President Trump maintained at a February 16, 2017 news conference that the First
Executive Order was lawful but that a new Order would be issued.
1.R. 91. Stephen Miller,
Senior Policy Advisor to the President, described the changes being made to the Order as
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 10 of 43
"mostly minor technical differences," emphasizing that the "basic policies are still going to be in
effect." J.R. 319. White House Press Secretary Sean Spicer stated that "[t]he principles of the
[second] executive order remain the same."
As of February 12, 2017, Trump's
Statement on Preventing Muslim Immigration remained on his campaign website. J.R. 207.
Upon the issuance of the Second Executive Order, Secretary of State Rex Tillerson
described it as "a vital measure for strengthening our national security." J.R. 115. In a March 7,
2017 interview, Secretary of Homeland Security Kelly stated that the Order was not a Muslim
ban but instead was focused on countries with "questionable vetting procedures," then noted that
there are 13 or 14 countries with questionable vetting procedures, "not all of them Muslim
countries and not all of them in the Middle East." J.R. 150.
In a joint affidavit, 10 former national security, foreign policy, and intelligence officials
who served in the White House, Department of State, Department of Homeland Security, and
Central Intelligence Agency in Republican and Democratic Administrations, four of whom were
aware of the available intelligence relating to potential terrorist threats to the United States as of
January 19, 2017, have stated that "there is no national security purpose for a total bar on entry
for aliens" from the Designated Countries and that they are unaware of any prior example of a
president suspending admission for such a "broad class of people." J.R. 404, 406. The officials
note that no terrorist acts have been committed on U.S. soil by nationals of the banned countries
since September 11, 2001, and that no intelligence as of January 19, 2017 suggested any such
potential threat. Nor, the former officials assert, is there any rationale for the abrupt shift from
individualized vetting to group bans. J.R. 404.
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Plaintiffs, comprised of six individuals and three organizations, assert that they will be
harmed by the implementation
of the Second Executive Order.
Collectively, they assert that
because the Individual Plaintiffs are Muslim and the Organizational Plaintiffs serve or represent
Muslim clients or members, the anti-Muslim animus underlying the Second Executive Order
inflicts stigmatizing injuries on them all. The Individual Plaintiffs, who each have one or more
relatives who are nationals of one of the Designated Countries and are currently in the process of
seeking permission to enter the United States, also claim that if the Second Executive Order is
allowed to go into effect, their separation from their loved ones, many of whom live in dangerous
conditions, will be unnecessarily prolonged.
Two of the Organizational
Plaintiffs, the Hebrew Immigrant
Aid Society and the
International Refugee Assistance Project, which provide services to refugees, assert that injuries
they have suffered under the First Executive Order will continue if the Second Executive Order
goes into effect, including lost revenue arising from a reduction in refugee cases that may
necessitate reductions in staff. They also assert that their clients, many of whom are refugees
now re-settled in the United States, will be harmed by prolonged separation from relatives in the
Designated Countries currently seeking to join them. Plaintiff Middle East Studies Association,
many of whose members are nationals of one of the Designated Countries, claims that the
Second Executive Order would make it more difficult for certain members to travel for academic
conferences and field work, and that the inability of its members to enter the United States
threatens to cripple its annual conference, on which it relies for a large portion of its yearly
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 12 of 43
In light of these alleged imminent harms, Plaintiffs now ask this Court to preliminarily
enjoin enforcement of the Second Executive Order.
. CONCLUSIONS OF LAW
In this Motion, Plaintiffs seek a preliminary injunction based on their claims that the
(1) the Immigration
Act and (2) the
Article III of the Constitution limits the judicial power of the federal courts to actual
"Cases" or "Controversies."
U.S. Const. art. III,
S 2, cl.
1. To invoke this power, a litigant must
Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013).
A plaintiff establishes
standing by demonstrating (1) a "concrete and particularized" injury that is "actual or imminent,"
(2) "fairly traceable to the challenged conduct," (3) and "likely to be redressed by a favorable
judicial decision." Id.; Covenant Media ofS.C., LLC v. City ofN Charleston, 493 F.3d 421, 428
(4th Cir. 2007).
Standing must be demonstrated for each claim. Bostic v. Schaefer, 760 F.3d
352,370 (4th Cir. 2014). The presence of one plaintiff with standing renders a claim justiciable.
Id. at 370-71.
Immigration and Nationality Act
Several Individual Plaintiffs, specifically John Doe NO.1, John Doe NO.3 and Jane Doe
have standing to assert the claim that the travel ban for citizens of the Designated
Countries violates the INA's prohibition on discrimination in the issuance of immigrant visas on
the basis of nationality, 8 U.S.C.
1152(a). These Individual Plaintiffs are all U.S. citizens or
lawful permanent residents who have sponsored relatives who are citizens of one of the
Designated Countries and now seek immigrant visas to enter the United States. They argue that
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 13 of 43
the delay or denial of the issuance of visas will cause injury in the form of continued separation
from their family members.
Cf Covenant Media, 493 F.3d at 428 (stating that not having an
application processed in a timely manner is a form of cognizable injury).
Although neither the United States Supreme Court nor the United States Court of
Appeals for the Fourth Circuit has explicitly endorsed this basis for standing, the Supreme Court
has reviewed the merits of cases brought by U.S. residents with a specific interest in the entry of
a foreigner challenging the application of the immigration laws to that foreign individual.
Kerry v. Din, 135 S. Ct. 2128, 2131, 2138-42 (2015) (considering an action brought by a U.S.
citizen challenging the denial of her husband's visa that failed to result in a majority of the Court
agreeing whether the plaintiff had a constitutionally-protected
liberty interest in the processing of
her husband's visa); Kleindienst v. Mandel, 408 U.S. 753, 756, 762-65 (1972) (considering the
merits of a claim brought by American plaintiffs challenging the denial of a visa to a Belgian
journalist whom they had invited to speak in various academic forums in the United States); see
also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1998) (stating that because
standing relates to a court's power to hear and adjudicate a case, it is normally "considered a
threshold question that must be resolved in [the litigant's]
favor before proceeding to the
Abourezk v. Reagan, 785 F.2d 1043, 1050 (D.C. Cir. 1986) ("Presumably, had the
Court harbored doubts concerning federal court subject matter jurisdiction in Mandel, it would
have raised the issue on its own motion.").
Other courts have done the same. See Bustamante v.
Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008) (considering an action by a United States citizen
challenging the denial of her husband's visa and holding that the citizen had a procedural due
process right to a "limited judicial inquiry regarding the reason for the decision"); Allende v.
Shultz, 845 F.2d 1111, 1114 & n.4 (1st Cir. 1988) (evaluating the merits of a claim brought by
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 14 of 43
scholars and leaders who extended invitations to a foreign national challenging the denial of her
The United States Court of Appeals for the District of Columbia Circuit has found that
U.S. citizens and residents have standing to challenge the denial of visas to individuals in whose
entry to the United States they have an interest.
See Abourezk, 785 F.2d at 1050 (finding that
U.S. citizens and residents had standing to challenge the denial of visas to foreigners whom they
had invited to "attend meetings or address audiences" in the United States); Legal Assistance for
Vietnamese Asylum Seekers v. Dep't of State, Bureau of Consular Affairs, 45 F.3d 469, 471
(D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996). In Legal Assistance, the court
specifically held that U.S. resident sponsors had standing to assert that the State Department's
failure to process visa applications of Vietnamese citizens in Hong Kong violated the provision
at issue here, 8 U.S.C.
1152. Id. at 471. The court articulated the cognizable injury to the
plaintiffs as the prolonged "separation of immediate family members" resulting from the State
Here, the three Individual Plaintiffs who seek the entry of family
members from the Designated Countries into the United States face the same harm of continuing
separation from their respective
This harm is "fairly traceable to the
challenged conduct" in that the Second Executive Order and its implementation, in barring their
entry, would cause the prolonged separation, and the injury is "likely to be redressed by a
favorable judicial decision" because invalidation of the relevant provisions of the Executive
Order would remove a barrier to their entry. Hollingsworth, 133 S. Ct. at 2661.
Defendants nevertheless argue that the Individual Plaintiffs' harm does not arise from a
"legally protected interest," citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
an "injury in fact" as a "legally protected
interest" which is "concrete
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 15 of 43
However, the case cited by Lujan in referencing the "legally protected interest"
requirement referred to an injury "deserving of legal protection through the judicial process."
Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972), cited with approval in Lujan, 504 U.S. at
561. Indeed, in Lujan, the Court also noted that "the desire to use or observe an animal species,
even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing."
Lujan, 504 U.S. at 562-63. Since Lujan, courts have clarified that a party is not required to have
a "substantive right sounding in property or contract" to articulate a legally protected injury.
Cantrell v. City of Long Beach, 241 F.3d 674, 681 (9th Cir. 2001) (recognizing aesthetic and
recreational enjoyment as a legally protected interest); see also Warth v. Seldin, 422 U.S. 490,
500 (1975) (explaining that although standing "often turns on the nature and source of the claim
asserted," "standing in no way depends on the merits" of a plaintiffs claim); Judicial Watch, Inc.
v. United States Senate, 432 F.3d 359, 363-66 (D.C. Cir. 2005) (Williams, J., concurring)
(suggesting that a legally protected interest is merely another label for a judicially cognizable
Plaintiffs' interests arising from the separation from family members are consistent
with the injury requirement.
Because this claim is a statutory cause of action, these Individual Plaintiffs must also
meet the requirement of having interests that fall within the "zone of interests protected by the
Lexmark Int'!, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1389
(2014). The APA grants standing to a person "aggrieved by agency action within the meaning of
a relevant statute." 5 U.S.C.
Clarke v. Sec. Indus. Ass 'n, 479 U.S. 388, 394 (1987). In the
context of the APA, the "zone of interests" test is "not especially demanding."
Ct. at 1389. A plaintiffs
Lexmark, 134 S.
interest need only "arguably" fall within the zone of interests, and the
test "forecloses suit only when a plaintiffs
interests are so marginally related to or inconsistent
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 16 of 43
with the purposes implicit in the statute that it cannot reasonably be assumed that Congress
authorized that plaintiff to sue." !d. (internal quotation marks omitted) (quoting Match-E-BeNash-She-Wish
Band of Pottawatomi
Indians v. Patchak,
132 S. Ct. 2199, 2210 (2012)).
of our immigration
preservation of the family unit" is among the INA's purposes, the interests of these Individual
Plaintiffs, who have sponsored family members who will be denied entry pursuant to the Second
Executive Order, fall within the zone of interest protected by the statute. Legal Assistance, 45
F.3d at 471-72 (quoting H.R. Rep. No. 82-1365, at 29 (l952), as reprinted in 1952 U.S.C.C.A.N.
1653, 1680). The Court therefore finds that these three Individual Plaintiffs have standing to
assert the claim under 8 U.S.C.
Finally, although some of the Individual Plaintiffs' relatives may be eligible for a waiver
under the Second Executive Order, because the waiver process presents an additional hurdle that
would delay reunification, their claims are ripe. See Jackson v. Okaloosa Cty., 21 F.3d 1531,
1541 (lith Cir. 1994) (finding in a Fair Housing Act action that plaintiffs' claim was ripe where,
"assuming that [plaintiffs] successfully prove at trial that this [challenged] additional hurdle was
interposed with discriminatory purpose and/or with disparate impact, then the additional hurdle
itself is illegal whether or not it might have been surmounted").
At least three of the Individual Plaintiffs, Muhammed Meteab, John Doe NO.1, and John
Doe No.3, each of whom is a Muslim and a lawful permanent resident of the United States, have
standing to assert the claim that the Second Executive Order violates the Establishment Clause.
John Doe NO.1 and John Doe NO.3 each has a wife who is an Iranian national, currently
residing in Iran, who would be barred from entry to the United States by the Executive Orders.
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 17 of 43
John Doe No. 1 has stated that the travel ban has "created significant fear, anxiety, and
insecurity" for him and his wife and that the "anti-Muslim views" underlying the Executive
Orders have caused him "significant stress and anxiety" to the point that he "worr(ies] that I may
not be safe in this country." J.R. 45. John Doe NO.3 has stated that the "anti-Muslim attitudes
that are driving" the Executive Orders cause him "stress and anxiety" and lead him to "question
whether I even belong in this country." J.R.49.
Meteab, who has Iraqi family members seeking
entry as refugees but who are now subject to the Executive Orders' suspension of refugee
admissions, has stated that the "official anti-Muslim sentiment" of the Executive Orders has
caused "mental stress" and has rendered him "isolated and disparaged" in his community.
Courts have recognized
that for purposes of an Establishment
Clause claim, non-
economic, intangible harms to "spiritual, value-laden beliefs" can constitute a particularized
injury sufficient to support standing.
Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th Cir.
1997); Awad v. Ziriax, 670 F.3d 1111, 1122-23 (lOth Cir. 2012) (holding that a Muslim plaintiff
residing in Oklahoma suffered a cognizable injury in the form of condemnation of his religion
based on a voter-approved
amendment prohibiting Oklahoma state courts from considering Sharia law); Catholic League v.
City & Cty. of San Francisco, 624 F.3d 1043, 1048 (9th Cir. 2010) (stating that a "psychological
consequence" constitutes a concrete injury where it is "produced by government condemnation
of one's own religion or endorsement of another's in one's own community").
however, needs to be a "personal injury suffered" by the plaintiff "as a consequence of the
alleged constitutional error."
Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 485 (l982).
Such a "personal injury" can result, for
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 18 of 43
example, from having "unwelcome direct contract with a religious display that appears to be
endorsed by the state," Suhre, 131 F.3d at 1086, or from being a member of the geographic
community in which the governmental action disfavoring their religion has an impact, see Awad,
670 F.3d at 1122-23; Catholic League, 624 F.3d at 1048 (finding that two devout Catholics and a
Catholic advocacy group, all based in San Francisco, had standing to challenge an allegedly antiCatholic resolution passed by the city government).
Here, where the Executive Order was issued
by the federal government, and the three Individual Plaintiffs have family members who are
directly and adversely affected in that they are barred from entry to the United States as a result
of the terms of the Executive Orders, these Individual Plaintiffs have alleged a "personal injury"
as a "consequence" of the alleged Establishment Clause violation.
Valley Forge Christian Coli.,
454 U.S. at 485.
The harm is "fairly traceable to the challenged conduct" in that the Second Executive
Order and its implementation
will allegedly effect the disfavoring of Islam, and the injury is
"likely to be redressed by a favorable judicial decision" invalidating the relevant provisions of
the Executive Order. Hollingsworth,
133 S. Ct. at 2661.
The Court therefore finds that these
three Individual Plaintiffs have standing to assert an Establishment Clause challenge.
Having identified at least one plaintiff with standing to assert the claims to be addressed
on this Motion, the Court need not address the standing arguments of the other Plaintiffs.
To obtain a preliminary injunction, moving parties must establish that (1) they are likely
to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of
preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the
Winter v. Nat. Res. De! Council, Inc., 555 U.S. 7, 20 (2008); see Dewhurst v.
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 19 of 43
Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). A moving party must satisfy each
requirement as articulated.
Real Truth About Obama, Inc. v. Fed. Election Comm 'n, 575 F.3d
342, 347 (4th Cir. 2009), vacated on other grounds,
559 U.S. 1089 (2010).
preliminary injunction is "an extraordinary remedy," it "may only be awarded upon a clear
showing that the plaintiff is entitled to such relief." Winter, 555 U.S. at 22.
Likelihood of Success on the Merits
Because "courts should be extremely careful not to issue unnecessary
rulings," Am. Foreign Servo Ass'n
Garfunkel, 490 U.S. 153, 161 (1989) (per curiam), the Court
first addresses the statutory claim and then proceeds, if necessary, to the constitutional claim.
Immigration and Nationality Act
Plaintiffs assert that the President's
travel ban violated provisions of the INA.
formulation of immigration policies is entrusted exclusively to Congress.
Galvan v. Press, 347
U.S. 522, 531 (1954). In the Immigration and Nationality Act of 1952, Pub. L. 82-414, 66 Stat.
163, Congress delegated some of its power to the President in the form of what is now Section
212(f) of the INA, codified at 8 U.S.C.
9 1182(f) ("9
1182(f)"), which provides that:
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.
In the Second Executive Order, President Trump invokes
issuing the travel ban against citizens of the Designated Countries. See 2d Order
9 2( c).
argue that by generally barring the entry of citizens of the Designated
Countries, the Second Order violates Section 202(a) of the INA, codified at 8 U.S.C.
("9 1152(a)"), which provides that, with certain exceptions:
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 20 of 43
No person shall receive any preference or priority or be discriminated against in
the issuance of an immigrant visa because of his race, sex, nationality, place of
birth, or place ofresidence(.]
Section 1152(a) was enacted as part of the Immigration and Nationality Act of 1965,
which was adopted
to abolish the "national
imposed by the
Immigration Act of 1924, which keyed yearly immigration quotas for particular nations to the
percentage of foreign-born individuals of that nationality who were living in the continental
United States, based on the 1920 census, in order to "maintain, to some degree, the ethnic
composition of the American people."
H. Rep. No. 89-745, at 9 (1965).
sought this reform because the national origins system was at odds with "our basic American
tradition" that we "ask not where a person comes from but what are his personal qualities." Id at
At first glance,
discrimination on the basis of nationality.
with the bar on
However, upon consideration of the specific statutory
language, the Court finds no direct conflict.
Section 1182(f) authorizes the President to bar
"entry" to certain classes of aliens.
Section 1152(a) bars discrimination
based on nationality in the "issuance of an immigrant visa." Id
1152( a)(1)(A). Although entry
is not currently defined in the INA, until 1997 it was defined as "any coming of an alien into the
United States, from a foreign port or place or from an outlying possession,
In the same section of the current INA, the term
"admission" is defined as "the lawful entry of the alien into the United States after inspection and
authorization by an immigration officer."
The term "immigrant visa" is
separately defined as "an immigrant visa required by this chapter and properly issued by a
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 21 of 43
consular officer at his office outside the United States to an eligible immigrant under the
provisions of this chapter." ld.
The INA, in turn, makes clear that "(n]othing in
this Act shall be construed to entitle any alien, to whom a visa or other documentation has been
issued, to be admitted to the United States." ld.
to address different activities handled by different government officials.
When two statutory
provisions "are capable of co-existence, it is the duty of the courts . . . to regard each as
Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976).
executive order barring entry to the United States based on nationality pursuant to the President's
1I82(f) does not appear to run afoul of the provision in
discrimination in the issuance of immigrant visas.
Although the Second Executive Order does not explicitly bar citizens of the Designated
Countries from receiving a visa, the Government acknowledged at oral argument that as a result
of the Second Executive Order, any individual not deemed to fall within one of the exempt
categories, or to be eligible for a waiver, will be denied a visa.
Thus, although the Second
Executive Order speaks only of barring entry, it would have the specific effect of halting the
issuance of visas to nationals of the Designated Countries.
Under the plain language of the
statute, the barring of immigrant visas on that basis would run contrary to
1I52(a) does not intrude upon the President's
States, the converse is also true:
issuance of immigrant visas.
1I82(f) authority to bar entry to the United
1182(f) authority to bar entry does not extend to the
The power the President has in the immigration context, and
certainly the power he has by virtue of the INA, is not his by right, but derives from "the
statutory authority conferred by Congress."
785 F.2d at 1061.
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 22 of 43
Government has identified no instance in which
1182(f) was invoked to bar the issuance of
visas based on nationality, a step not contemplated by the language of the statute.
To the extent the Government argues that
President to use
1152(a) does not constrain the ability of the
1182(f) to bar the issuance of immigrant visas, the Court finds no such
Section 1152(a) requires a particular result, namely non-discrimination
issuance of immigrant visas on specific, enumerated bases.
Section 1182(f), by contrast,
mandates no particular action, but instead sets out general parameters for the President's power
to bar entry.
Thus, to the extent that
1182(f) may conflict on the question
whether the President can bar the issuance of immigrant visas based on nationality,
the more specific provision, controls the more general
1182(f). See Edmond v. United States,
520 U.S. 651, 657 (1997) ("Ordinarily, where a specific provision conflicts with a general one,
the specific governs."); United States v. Smith, 812 F.2d 161, 166 (4th Cir. 1987).
certain sections of the INA from its scope, specifically
1101(a)(27), 1151(b)(2)(A)(i), and 1153.
among the exceptions.
Section 1182(f) is not
Because the enumerated exceptions illustrate that Congress "knows how
to expand 'the jurisdictional reach of a statute, '" the absence of any reference to
these exceptions provides strong evidence that Congress did not intend for
l182(f) to be
exempt from the anti-discrimination
v. NC. Growers
Ass 'n, 250 F.3d 861, 865 (4th Cir. 2001) (quoting Equal Emp't Opportunity Comm 'n v. Arabian
Am. Oil Co., 499 U.S. 244, 258 (1991)).
that the President
discrimination on the basis of nationality in the issuance of immigrant visas based on 8 U.S.C.
1152(a)(1)(B), which states that "[n]othing in
1152(a)] shall be construed to limit the authority
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 23 of 43
of the Secretary of State to determine the procedures for the processing of immigrant visa
applications or the locations where such applications will be processed."
As that statutory
provision expressly applies to the Secretary of State, it does not provide a basis to uphold an
otherwise discriminatory action by the President in an Executive Order. Even if the Court were
to construe Plaintiffs' claim to be that the State Department's
anticipated denial of immigrant
visas based on nationality for a period of 90 days would run contrary to
1152(a), the text of
does not comfortably establish that such a delay falls within this exception.
1152(a)(l)(B) specifically allows the Secretary to vary "locations" and "procedures"
without running afoul of the non-discrimination
provision, it does not include within the
exception any authority to make temporal adjustments.
different concepts, and
readily conclude that
Because time, place, and manner are
addresses only place and manner, the Court cannot
permits the imminent 90-day ban on immigrant visas based
of the non-discrimination
Finally, the Government asserts that the President has the authority to bar the issuance of
visas based on nationality pursuant to Section 215(a) of the INA, codified at 8 U.S.C.
("s 1185(a)"), which provides that:
Unless otherwise ordered by the President, it shall be unlawful for an alien to
depart from or enter or attempt to depart from or enter the United States except
under such reasonable rules, regulations, and orders, and subject to such
limitations and exceptions as the President may prescribe.
As support for this interpretation,
Carter's invocation of 8 U.S.C.
1185(a)(l) to bar entry of Iranian nationals during the Iran
Hostage Crisis in 1979. Crucially, however, President Carter used
on the rules
1185(a)(l) to "prescribe
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 24 of 43
nonimmigrant visas," a category that is outside the ambit of
The Government has identified no instance in which
control the immigrant visa issuance process.
44 Fed. Reg. 67947,
1185(a) has been used to
Under the principle of statutory construction that
"all parts of a statute, if at all possible, are to be given effect," Weinberger v. Hynson, Westcott &
Dunning, Inc., 412 U.S. 609, 633 (1973), the Court concludes that, as with
fair reading of
1I82(t), the most
1I82(a)(1) is that it provides the President with the authority to regulate and
control whether and how aliens enter or exit the United States, but does not extend to regulating
the separate activity of issuance of immigrant visas.
Because there is no clear basis to conclude that
discrimination provision of
l182(t) is exempt from the non-
1152(a) or that the President is authorized to impose nationality-
based distinctions on the immigrant visa issuance process through another statutory provision,
the Court concludes that Plaintiffs have shown a likelihood of success on the merits of their
claim that the Second Executive Order violates
1I52(a), but only as to the issuance of
immigrant visas, which the statutory language makes clear is the extent of the scope of that antidiscrimination requirement.
They have not shown a likelihood of success on the merits of the
1152(a) prevents the President from barring entry to the United States pursuant to
1182(t), or the issuance of non-immigrant visas, on the basis of nationality.
1I52(a), Plaintiffs make the additional argument under the INA that because
the Second Executive Order's nationality-based
terrorist threats, the Order conflicts with 8 U.S.C.
based on an enumerated
(IV), and (VII).
distinctions are ostensibly aimed at potential
1I82(a)(3)(B), which renders an individual
list of terrorism
See 8 U.S.C.
Plaintiffs contend that these provisions
Congress has established a mechanism for the individualized assessment of the terror risk an
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 25 of 43
immigrant poses, such that Congress did not envision that terrorism would be addressed through
broad nationality- or religion-based bans pursuant to
for their contention and make no showing that
426 U.S. at 155.
1182(f). But Plaintiffs provide no support
1182(f) "cannot mutually
Although Plaintiffs try to cast
President to barring entry only to classes of aliens delineated in
1182(a) as an
1I82(f) purports to limit the
1182(a). Thus, Plaintiffs are
unlikely to succeed on the merits of this claim.
Plaintiffs assert that the travel ban on citizens from the Designated Countries is President
Trump's fulfillment of his campaign promise to ban Muslims from entering the United States.
They argue that the Second Executive Order therefore violates the Establishment Clause.
First Amendment prohibits any "law respecting an establishment
of religion," U.S. Const.
amend. I, and "mandates governmental neutrality between religion. and religion, and between
religion and nonreligion," Epperson v. Arkansas, 393 U.S. 97, 104 (1968). When a law does not
differentiate among religions on its face, courts apply the test articulated in Lemon v. Kurtzman,
403 U.S. 602 (1971). See Hernandez v. C.IR., 490 U.S. 680, 695 (1989). Under the Lemon test,
to withstand an Establishment Clause challenge (1) an act must have a secular purpose, (2) "its
principal or primary effect must be one that neither advances nor inhibits religion," and (3) it
must not "foster' an excessive government entanglement with religion. '" Id. at 612-613 (quoting
Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)). All three prongs of the test must be satisfied.
Edwards v. Aguillard, 482 U.S. 578, 583 (1987).
The mere identification of any secular purpose for the government action does not satisfy
the purpose test. McCreary Cty. v. Am. Civil Liberties Union a/Ky., 545 U.S. 844,860,865
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 26 of 43
Such a rule "would leave the purpose test with no real bite, given the ease of finding
some secular purpose for almost any government action." Id. ("[A]n approach that credits any
valid purpose . . . has not been the way the Court has approached government action that
Thus, although governmental
purpose generally receive deference, a secular purpose must be "genuine, not a sham, and not
merely secondary to a religious objective." Id. at 864. If a religious purpose for the government
action is the predominant
or primary purpose, and the secular purpose is "secondary,"
purpose test has not been satisfied.
Id. at 860, 862-65; see also Edwards, 482 U.S. at 594
(finding a violation of the Establishment Clause where the "primary purpose" of the challenged
act was "to endorse a particular religious doctrine").
An assessment ofthe purpose of an action is a "common" task for courts. McCreary, 545
U.S. at 861. In determining purpose, a court acts as an "objective observer" who considers "the
traditional external signs that show up in the text, legislative history, and implementation of the
statute, or comparable official act."
McCreary, 545 U.S. at 862 (internal quotation marks
omitted) (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)).
of official objective" can emerge from "readily discoverable
''judicial psychoanalysis" of the decisionmaker.
Plaintiffs argue that the Second Executive Order fails the purpose prong because there is
substantial direct evidence that the travel ban was motivated by a desire to ban Muslims as a
group from entering the United States. Plaintiffs' evidence on this point consists primarily of
public statements made by President Trump and his advisors, before his election, before the
issuance of the First Executive Order, and since the decision to issue the Second Executive
statements from these time periods is appropriate because courts may
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 27 of 43
consider "the historical context" of the action and the "specific sequence of events" leading .up to
it. Edwards, 482 U.S. at 594-95. Such evidence is "perfectly probative" and is considered as a
matter of "common sense"; indeed, courts are "forbid[ den] ... 'to tum a blind eye to the context
in which [the] policy arose.'''
McCreary, 545 U.S. at 866 (quoting Santa Fe Indep. Sch. Dist. v.
Doe, 530 U.S. 290, 315 (2000)); cf Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
267-68 (1987) (including the "historical background of the decision," the "specific sequence of
up [to] the challenged
body" as factors indicative of discriminatory intent), cited with approval in
Edwards, 482 U.S. at 595.
One consequence of taking account of the purpose underlying past actions is that
the same government action may be constitutional if taken in the first instance and
unconstitutional if it has a sectarian heritage. This presents no incongruity,
however, because purpose matters.
McCreary, 545 U.S. at 866 n.l4.
offered by Plaintiffs
President Trump expressing an intent to issue a Muslim ban or otherwise conveying anti-Muslim
For example, on December 7, 2015, then a Republican primary candidate, Trump
posted a "Statement on Preventing Muslim Immigration" on his campaign website "calling for a
total and complete shutdown of Muslims entering the United States until our representatives can
figure out what is going on." J.R. 85. In a March 9, 2016 interview with CNN, Trump professed
his belief that "Islam hates us," and that the United States had "allowed this propaganda to
spread all through the country that [Islam] is a religion of peace." J.R. 255-57. Then in a March
22, 2016 Fox Business interview, Trump reiterated his call for a ban on Muslim immigration,
explaining that his call for the ban had gotten "tremendous support" and that "we're having
problems with the Muslims, and we're having problems with Muslims coming into the country."
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 28 of 43
into the country."
J.R. 261. On December 21, 2016, when asked whether a recent attack in
Germany affected his proposed Muslim ban, President-Elect Trump replied, "You know my
plans. All along, I've proven to be right. 100% correct." J.R.245.
In a written statement about
the events, Trump lamented the attack on people "prepared to celebrate the Christmas holiday"
by "ISIS and other Islamic terrorists [who] continually slaughter Christians in their communities
and places of worship as part of their global jihad." J.R. 245.
the record also includes specific statements directly establishing
Trump intended to effectuate a partial Muslim ban by banning entry by citizens of specific
Muslim countries deemed to be dangerous, as a means to avoid, for political
reasons, an action explicitly directed at Muslims. In a July 24, 2016 interview on Meet the Press,
soon after becoming the Republican presidential nominee, Trump asserted that immigration
should be immediately suspended "from any nation that has been compromised by terrorism."
When questioned whether his new formulation was a "rollback" of his call for a
"Muslim ban," he described it as an "expansion" and explained that "[p ]eople were so upset
when I used the word Muslim," so he was instead "talking territory instead of Muslim."
220. When President Trump was preparing to sign the First Executive Order, he remarked, "This
is the 'Protection of the Nation from Foreign Terrorist Entry into the United States.'
know what that means."
J.R. 142. The day after the First Executive Order was issued, Mayor
Giuliani appeared on Fox News and asserted that President Trump told him he wanted a Muslim
ban and asked Giuliani to "[s]how me the right way to do it legally."
J.R. 247. Giuliani, in
consultation with others, proposed that the action be "focused on, instead of religion ... the areas
of the world that create danger for us," specifically "places where there are [sic] substantial
evidence that people are sending terrorists into our country." J.R.247-48.
These types of public
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 29 of 43
statements were relied upon by the Eastern District of Virginia in enjoining the First Executive
Order based on a likelihood of success on an Establishment
Clause claim, Aziz, 2017 WL
580855, at *11, and the Ninth Circuit in concluding that an Establishment Clause claim against
that Order raised "serious allegations"
and presented "significant
Washington, 847 F.3d at 1168.
These statements, which include explicit, direct statements of President Trump's animus
towards Muslims and intention to impose a ban on Muslims entering the United States, present a
convincing case that the First Executive Order was issued to accomplish, as nearly as possible,
. President Trump's promised Muslim ban.
In particular, the direct statements by President
Trump and Mayor Giuliani's account of his conversations with President Trump reveal that the
plan had been to bar the entry of nationals of predominantly
Muslim countries deemed to
constitute dangerous territory in order to approximate a Muslim ban without calling it oneprecisely the form of the travel ban in the First Executive Order. See Aziz, 2017 WL 580855, at
*4 (quoting from a July 17,2016 interview during which then-candidate Trump, upon hearing a
tweet stating "Calls to ban Muslims from entering the U.S. are offensive and unconstitutional,"
"So you call it territories. OK? We're gonna do territories.").
statements of a religious purpose are "readily discoverable fact [s]" that allow the Court to
identify the purpose of this government action without resort to "judicial psychoanalysis."
McCreary, 545 U.S. at 862. They constitute clear statements of religious purpose comparable to
those relied upon in Glassroth v. Moore, 335 F.3d 1282 (lith Cir. 2003), where the court found
that a Ten Commandments display at a state courthouse was erected for a religious purpose in
part based on the chief justice stating at the dedication ceremony that "in order to establish
justice, we must invoke 'the favor and guidance of Almighty God. '" Id. at 1286, 1296 ("[N]o
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 30 of 43
or dissection is required here, where there is abundant evidence, including his
own words, of the Chief Justice's purpose.").
Relying primarily on this record, Plaintiffs asks this Court to issue an injunction against
the Second Executive Order on Establishment Clause grounds.
In considering this request, the
same record of public statements by President Trump remains highly relevant.
where the Court was reviewing a third attempt to create a courthouse display including the Ten
Commandments after two prior displays had been deemed unconstitutional, it held that its review
was not limited to the "latest news about the last in a series of governmental actions" because
"the world is not made brand new every morning," "reasonable observers have reasonable
memories," and to impose such a limitation would render a court "an absentedminded objective
observer, not one presumed familiar with the history of the government's action and competent
to learn what history has to show." McCreary, 545 U.S. at 866.
The Second Executive Order, issued only six weeks after the First Executive Order,
differs, as relevant here, in that the preference for religious minorities in the refugee process has
It also removes Iraq from the list of Designated Countries, exempts certain
categories of individuals from the ban, and lists other categories of individuals who may be
eligible for a case-by-case waiver from the ban.
Despite these changes, the history of public
statements continues to provide a convincing case that the purpose of the Second Executive
Order remains the realization of the long-envisioned Muslim ban. The Trump Administration
acknowledged that the core substance of the First Executive Order remained intact. Prior to its
issuance, on February
16, 2017, Stephen Miller, Senior Policy Advisor to the President,
described the forthcoming changes as "mostly minor technical differences," and stated that the
"basic policies are still going to be in effect." J.R. 319. When the Second Executive Order was
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 31 of 43
signed on March 6, 2017, White House Press Secretary Sean Spicer stated that "[t]he principles
of the [second] executive order remain the same." J.R. 118. The Second Executive Order itself
explicitly states that the changes, particularly the addition of exemption and waiver categories,
were made to address 'judicial concerns," 2d Order
1(i), including those raised by the Ninth
Circuit, which upheld an injunction based on due process concerns, Washington, 847 F.3d at
The removal of the preference for religious minorities in the refugee system, which was
the only explicit reference to religion in the First Executive Order, does not cure the Second
Executive Order of Establishment Clause concerns.
Crucially, the core policy outcome of a
blanket ban on entry of nationals from the Designated Countries remains.
Trump discussed his planned Muslim ban, he described not the preference
minorities, but the plan to ban the entry of nationals from certain dangerous countries as a means
to carry out the Muslim ban. These statements thus continue to explain the religious purpose
behind the travel ban in the Second Executive Order. Under these circumstances, the fact that
the Second Executive Order is facially neutral in terms of religion is not dispositive.
See Bd. of
Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 699-702 (1994) (holding that a
facially neutral delegation of civic power to "qualified voters" of a village predominantly
comprised of followers of Satmas Hasidism was a "purposeful and forbidden" violation of the
Establishment Clause); cf Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 534, 542 (1993) (holding that a facially neutral city ordinance prohibiting animal sacrifice
and intended to target the Santeria faith violated the Free Exercise Clause because "the Free
Exercise Clause, like the Establishment Clause, extends beyond facial discrimination" and action
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 32 of 43
targeting religion "cannot be shielded by mere compliance with the requirement
Defendants do not directly contest that this record of public statements reveals a religious
motivation for the travel ban.
Rather, they argue that many of the statements may not be
considered because they were made outside the formal government decisionmaking process or
before President Trump became a government official.
Although McCreary, relied upon by
Defendants, states that a court considers "the text, legislative history, and implementation" of an
action and "comparable" official acts, it did not purport to list the only materials appropriate for
545 U.S. at 862. Notably, in Green v. Haskell County Board of Commissioners,
568 F.3d 784 (10th Cir. 2009), the United States Court of Appeals for the Tenth Circuit
considered quotes from county commissioners that appeared in news reports in finding that a Ten
Commandments display violated the Establishment Clause. Id. at 701. Likewise, in Glassroth,
the United States Court of Appeals for the Eleventh Circuit found an Establishment Clause
violation based on a record that included the state chief justice's campaign materials, including
billboards and television commercials, proclaiming him to be the "Ten Commandments Judge."
335 F.3d at 1282, 1284-85, 1297.
Although statements must be fairly "attributed to [a] government actor," Glassman v.
Arlington Cty., 628 F.3d 140, 147 (4th Cir. 2010), Defendants have cited no authority concluding
In Hamdan v. Rumsfeld, 548 U.S. 557, 624 n.52 (2006), cited by Defendants, the Court
criticized a dissent's reliance on press statements by senior government officials, rather than the
President's formal written determination mandated by the Uniform Code of Military Justice, to
provide justification for the government's determination that applying court-martial rules to a
terrorism suspect's military commission was impracticable. Id. at 624 & n.52. It did not address
what facts could be considered in assessing government purpose under the Establishment Clause,
where courts have held that facts outside the specific text of the government decision may be
considered. See Edwards, 482 U.S. at 594-95.
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 33 of 43
that a court assessing purpose under the Establishment Clause may consider only statements
made by government employees at the time that they were government employees.
because a decisionmaker made the statements during a campaign does not wipe them from the
"reasonable memory" of a "reasonable observer."
McCreary, 545 U.S. at 866. Notably, the
record in Glassroth also included the fact that the state chief justice, before securing election to
that position, had made a campaign promise to install the Ten Commandments
in the state
courthouse, as well as campaign materials issued by members of his campaign committee.
Glassroth, 335 F.3d at 1285. Because the state chief justice was the ultimate decisionmaker, and
were fairly attributable
to him, such material
appropriately considered in assessing purpose under the Establishment Clause. See id. at 1285;
Glassman, 628 F.3d at 147.
Likewise, all of the public statements at issue here are fairly
attributable to President Trump, the government decisionmaker for the Second Executive Order,
because they were made by President Trump himself, whether during the campaign or as
by White House staff, or by a close campaign
advisor who was relaying a
conversation he had with the President. In contrast, Defendants' cited case law does not involve
statements fairly attributable to the government decisionmaker.
See, e.g., Glassman, 628 F.3d at
147 (declining to consider statements made by members of a church that was alleged to have
benefited from government action); Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 (lOth
Cir. 2008) (declining to consider statements by the artist where the government's
artwork is challenged); Modrovich v. Allegheny Cty., 385 F.3d 397, 411 (3d Cir. 2004) (declining
to consider statements by a judge and county residents about a Ten Commandments
where the county government's purpose was at issue).
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 34 of 43
Defendants also argue that the Second Executive Order explicitly articulates a national
security purpose, and that unlike its predecessor, it includes relevant information about national
security concerns. In particular, it asserts that there is a heightened chance that individuals from
the Designated Countries will be "terrorist operatives or sympathizers" because each country is
"a state sponsor of terrorism, has' been significantly compromised by terrorist organizations, or
contains active conflict zones," and those governments are therefore less likely to provide
necessary information for the immigrant vetting process.
2d Order ~ 1(d).
The Order also
references a history of persons born abroad committing terrorism-related crimes in the United
States and identifies three specific cases of such crimes. The Order further states that more than
States as refugees
Plaintiffs argue that the stated national security rationale is limited and flawed. Among
other points, they note that the Second Executive Order does not identify examples of foreign
nationals from Iran, Libya, Sudan, Syria, or Yemen who engaged in terrorist activity in the
United States. They also note that a report from the Department of Homeland Security, Office of
Intelligence and Analysis, concluded that "country of citizenship is unlikely to be a reliable
indicator of potential terrorist activity" and that "few of the impacted countries have terrorist
groups that threaten the West." l.R. 158. Furthermore, they note that the 300 FBI investigations
are dwarfed by the over 11,000 counterterrorism investigations at anyone time, only a fraction
of which lead to actual evidence of illegal activity.
Finally, they note that Secretary of
Homeland Security Kelly stated that there are additional countries, some of which are not
Muslim, that have vetting problems but are not included among the banned
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 35 of 43
These facts raise legitimate questions whether the travel ban for the Designated
Countries is actually warranted.
Generally, however, courts should afford deference to national security and foreign
policy judgments of the Executive Branch.
Holder v. Humanitarian Law Project, 561 U.S. 1,
33-34 (2010). The Court thus should not, and will not, second-guess the conclusion that national
security interests would be served by the travel ban. The question, however, is not simply
whether the Government has identified a secular purpose for the travel ban. If the stated secular
purpose is secondary to the religious purpose, the Establishment Clause would be violated. See
545 U.S. at 864, 866 n.14 (stating that it is appropriate to treat two like acts
differently where one has a "history manifesting
sectarian purpose that the other lacks").
Making assessments on purpose, and the relative weight of different purposes, is a core judicial
function. See id. at 861-62.
In this highly unique case, the record provides strong indications that the national security
purpose is not the primary purpose for the travel ban. First, the core concept of the travel ban
was adopted in the First Executive Order, without the interagency consultation process typically
followed on such matters. Notably, the document providing the recommendation of the Attorney
General and the Secretary of Homeland Security was issued not before the First Executive Order,
but on March 6, 2017, the same day that the Second Executive Order was issued. The fact that
the White House took the highly irregular step of first introducing the travel ban without
receiving the input and judgment of the relevant national security agencies strongly suggests that
the religious purpose was primary, and the national security purpose, even if legitimate, is a
secondary post hoc rationale.
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 36 of 43
Second, the fact that the national security rationale was offered only after courts issued
injunctions against the First Executive Order suggests that the religious purpose has been, and
remains, primary. Courts have been skeptical of statements of purpose "expressly disclaim(ing]
any attempt to endorse religion" when made after a judicial finding of impermissible purpose,
describing them as a "litigating position."
E.g., Am. Civil Liberties Union of Ky. v. McCreary
Cty., 607 F.3d 439, 444, 448 (6t~ Cir. 2010).
Indeed, the Second Executive Order itself
acknowledges that the changes made since the First Executive Order were to address "judicial
concerns." 2d Order
Third, although it is undisputed
that there are heightened
security risks with the
Designated Countries, as reflected in the fact that those who traveled to those countries or were
nationals of some of those countries have previously been barred from the Visa Waiver Program,
see 8 U.S.C.
1187(a)(12), the travel ban represents an unprecedented response.
during the time period since the Reagan Administration, which includes the immediate aftermath
of September 11, 2001, there have been no instances in which the President has invoked his
1185 to issue a ban on the entry into the United States of all
citizens from more than one country at the same time, much less six nations all at once. Kate M.
Manuel, Congo Research Serv., R44743, Executive Authority to Exclude Aliens: In Brief (2017);
l.R. 405-406. In the two instances in which nationals from a single country were temporarily
stopped, there was an articulable triggering event that warranted such action. Manuel, supra, at
10-11 (referencing the suspension of the entry of Cuban nationals under President Reagan after
Cuba stopped complying with U.S. immigration requirements and the revocation of visas issued
to Iranians under President Carter during the Iran Hostage Crisis). The Second Executive Order
does not explain specifically why this extraordinary,
action is the necessary
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 37 of 43
response to the existing risks. But while the travel ban bears no resemblance to any response to a
national security risk in recent history, it bears a clear resemblance to the precise action that
President Trump described as effectuating his Muslim ban.
Thus, it is more likely that the
primary purpose of the travel ban was grounded in religion, and even if the Second Executive
Order has a national security purpose, it is likely that its primary purpose remains the
effectuation of the proposed Muslim ban. Accordingly, there is a likelihood that the travel ban
violates the Establishment Clause.
argue that because the Establishment
Clause claim implicates
Congress's plenary power over immigration as delegated to the President, the Court need only
consider whether the Government has offered a "facially legitimate and bona fide reason" for its
action. See Mandel, 408 U.S. at 777. This standard is most typically applied when a court is
asked to review an executive officer's decision to deny a visa. See, e.g., Din, 135 S. Ct. at 2140
(Kennedy, J., concurring); or in other matters relating to the immigration rights of individual
aliens or citizens, see Fiallo v. Bell, 430 U.S. 787, 790 (1977). The Mandel test, however, does
not apply to the "promulgation of sweeping immigration policy" at the "highest levels of the
Washington, 847 F.3d at 1162 (holding that courts possess "the authority to
review executive action" on matters of immigration and national security for "compliance with
In such situations, the power of the Executive and Legislative branches to
create immigration law remains "subject to important constitutional limitations."
Davis, 533 U.S. 678, 695 (2001) (quoting INS v. Chadha, 462 U.S. 919,941-42 (1983)).
Even when exercising their immigration powers, the political branches must choose
permissible means of implementing that power."
Chadha, 462 U.S. at 941.
Courts have therefore rejected arguments that they forgo the traditional constitutional analysis
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 38 of 43
when a plaintiff has challenged the Government's exercise of immigration power as violating the
See, e.g., Zadvydas, 533 U.S. at 695 (rejecting deference to plenary power in
determining that indefinite detention of aliens violated the Due Process Clause); Chadha, 462
U.S. at 941-43 (stating that Congress's plenary authority over the regulation of aliens does not
permit it to "offend some other constitutional restriction" and holding that a statute permitting
Congress to overturn the Executive Branch's decision to allow a deportable alien to remain in the
United States violated constitutional provisions relating to separation of powers); Washington,
847 F.3d at 1167-68 (referencing standard Establishment Clause principles as applicable to the
claim that the First Executive Order violated the Establishment Clause).
Thus, although "[t]he
Executive has broad discretion over the admission and exclusion of aliens," that discretion "may
not transgress constitutional limitations," and it is "the duty of the courts" to "say where those
statutory and constitutional boundaries lie." Abourezk, 785 F.2d at 1061.
Mindful of "the fundamental place held by the Establishment Clause in our constitutional
scheme and the myriad, subtle ways in which Establishment
Clause values can be eroded,"
Lynch v. Donnelly, 465 U.S. 668, 694 (1984), the Court finds that the Plaintiffs have established
that they are likely to succeed on the merits of their Establishment Clause claim. Having reached
this conclusion, the Court need not address Plaintiffs'
likelihood of success on their Equal
Protection Clause claim.
Having concluded that Plaintiffs have established a likelihood of success on the merits,
the Court turns to whether they have shown a likelihood of irreparable harm.
Court has held that "loss of First Amendment freedoms, for even minimal periods of time,
constitutes irreparable injury."
Elrod v. Burns, 427 U.S. 347, 373 (1976)
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 39 of 43
(finding irreparable harm upon a violation of the freedom of association). The Fourth Circuit has
applied this holding to cases involving the freedom of speech and expression.
Tepeyac v. Montgomery Cty., 722 F.3d 184, 190, 191-92 (4th Cir. 2013); Legend Night Club v.
Miller, 637 F.3d 291, 302 (4th Cir. 2011). Although the Fourth Circuit has not yet held that a
violation of the Establishment
Clause likewise necessarily results in irreparable harm, other
See, e.g., Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303
(D.C. Cir. 2006); Ingebretsen ex rei. Ingebretsen v. Jackson Pub. Sch. Disf., 88 F.3d 274, 280
(5th Cir. 1996); Parents' Ass'n of P.s. 16 v. Quinones, 803 F.2d 1235, 1242 (2d Cir. 1986); Am.
Civil Liberties Union of Ill. v. City of Sf. Charles, 794 F.2d 265, 275 (7th Cir. 1986) (finding
irreparable harm in an Establishment Clause case and stating that the "harm is irreparable as well
as substantial because an erosion of religious liberties cannot be deterred by awarding damages
to the victims of such erosion").
Here, as in Elrod, "First Amendment interests were either threatened or in fact being
impaired at the time relief was sought."
Elrod, 427 U.S. at 373.
"[W]hen an Establishment
Clause violation is alleged, infringement occurs the moment the government action takes place."
Chaplaincy of Full Gospel Churches, 454 F.3d at 303.
The Court accordingly finds that
Plaintiffs have established a likelihood of irreparable harm when the Second Executive Order
Balance of the Equities and the Public Interest
While Plaintiffs would likely face irreparable harm in the absence of an injunction,
Defendants are not directly harmed by a preliminary injunction preventing them from enforcing
an Executive Order likely to be found unconstitutional.
See Newsom ex rei. Newsom v.
Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003); Aziz, 2017 WL 580855, at *10.
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 40 of 43
Preventing an Establishment Clause violation has significant public benefit beyond the interests
of the Plaintiffs.
The Supreme Court has recognized the "fundamental
Establishment Clause in our constitutional scheme."
place held by the
Wallace v. Jajfree, 472 U.S. 38, 60 (1985).
The Founders "brought into being our Nation, our Constitution, and our Bill of Rights with its
prohibition against any governmental establishment of religion" because they understood that
established religions and religious persecution go hand in hand."
Vitale, 370 U.S. 421, 432-33 (1962).
When government chooses sides among religions, the
"inevitable result" is "hatred, disrespect, and even contempt" from those who adhere to different
See id. at 431. Thus, to avoid sowing seeds of division in our nation, upholding this
principle at the core of our Nation's
identity plainly serves a
significant public interest.
At the same time, the Supreme Court has stated that "no governmental interest is more
compelling than the security of the Nation."
Haig v. Agee, 453. U.S. 280, 307 (1981).
however, have not shown, or even asserted, that national security cannot be
maintained without an unprecedented six-country travel ban, a measure that has not been deemed
necessary at any other time in recent history.
Thus, the balance of the equities and the public
interest favor the issuance of an injunction.
Scope of Relief
Plaintiffs have asked the Court to issue an injunction blocking the Executive Order in its
entirety. The Court declines to grant such broad relief. The Plaintiffs' Establishment Clause and
INA arguments focused primarily on the travel ban for citizens of the six Designated Countries
in Section 2(c) of the Second Executive Order.
The Court will enjoin that provision only.
Although Plaintiffs have argued that sections relating to the temporary ban on refugees also
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 41 of 43
offend the Establishment Clause, they did not sufficiently develop that argument to warrant an
injunction on those sections at this time.
As for the remaining portions of the Second Order,
Plaintiffs have not provided a sufficient basis to establish their invalidity.
Thus, the Court
declines to enjoin the Second Order in its entirety.
With respect to Section 2(c), the Court concludes that nationwide relief is warranted. It is
that a federal district court has "wide discretion to fashion appropriate
injunctive relief in a particular case."
Richmond Tenants Org., Inc. v. Kemp, 956 F.2d 1300,
1308 (4th Cir. 1992); see also Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015) (holding
that the "Constitution vests the District Court with 'the judicial Power of the United States,'"
which "extends across the country" (quoting U.S. Const. art. III
S 1)), aff'd
by an equally divided
court, 136 S. Ct. 2271 (2016). Injunctive relief "should be no more burdensome to the defendant
than necessary to provide complete reliefto the plaintiffs."
Califano v. Yamasaki, 442 U.S. 682,
702 (1979). However, nationwide injunctions are appropriate if necessary to afford relief to the
prevailing party. See id.; Richmond Tenants Org., Inc., 956 F.3d at 1308-39; Texas, 809 F.3d at
The Court has found that Plaintiffs are likely to be able to establish that Section 2(c) of
the Second Executive Order violates the Establishment Clause.
Both the Individual Plaintiffs
and clients of the Organizational Plaintiffs are located in different parts of the United States,
indicating that nationwide relief may be appropriate.
Richmond Tenants Org., Inc., 956 F.3d at
1309 (holding that a nationwide injunction was "appropriately tailored" because the plaintiffs
lived in different parts of the country).
Moreover, although the Government has argued that
relief should be strictly limited to the specific interests of the Plaintiffs, an Establishment Clause
violation has impacts beyond the personal interests of individual parties. Joyner v. Forsyth Cty.,
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 42 of 43
653 F.3d 341, 355 (4th Cir. 2011) ("[T]hese plaintiffs are not so different from other citizens
who may feel in some way marginalized on account of their religious beliefs and who decline to
risk the further ostracism that may ensue from bringing their case to court or who simply lack the
resources to do so."); City of Sf. Charles, 794 F.2d at 275 (stating that a violation of the
Establishment Clause causes "harm to society").
Here, nationwide relief is appropriate because
this case involves an alleged violation of the Establishment Clause by the federal government
manifested in immigration policy with nationwide effect.
See Decker v. O'Donnell, 661 F.2d
598, 618 (7th Cir. 1980) (affirming a nationwide injunction in a facial challenge to a federal
statute and regulations on Establishment Clause grounds).
Finally, under these facts, a "fragmented" approach "would run afoul of the constitutional
and statutory requirement for uniform immigration law and policy."
Washington, 847 F.3d at
"Congress has instructed that the immigration laws of the United States should be
enforced vigorously and uniformly, and the Supreme Court has described immigration policy as a
comprehensive and unified system."
Texas, 80 F.3d at 187-88 (footnotes and quotation marks
In light of the constitutional harms likely to befall Plaintiffs in the absence of relief,
and the constitutional mandate of a uniform immigration law and policy, Section 2(c) of the
Second Executive Order will be enjoined on a nationwide basis.
Case 8:17-cv-00361-TDC Document 149 Filed 03/16/17 Page 43 of 43
For the foregoing reasons, the Motion is GRANTED IN PART and DENIED IN PART.
The Court will issue an injunction barring enforcement of Section 2(c) of the Second Executive
Order. A separate Order shall issue.
Date: March 15,2017
THEODORE D. CHU
United States District
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