International Refugee Assistance Project et al v. Trump et al

Filing 177

MOTION for Leave to File Motion for Preliminary Injunction by HIAS, Inc., Paul Harrison, International Refugee Assistance Project, Jane Doe # 2, John Does 1 & 3, Muhammed Meteab, Middle East Studies Association of North America, Inc., Ibrahim Ahmed Mohomed(Espiritu, Nicholas)

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

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

INTERNATIONAL REFUGEE
ASSISTANCE PROJECT, et al.,

PLAINTIFFS’ MOTION FOR LEAVE
TO
FILE
MOTION
FOR
PRELIMINARY INJUNCTION OF § 6
ON CONSTITUTIONAL GROUNDS

Plaintiffs,
v.
DONALD TRUMP, et al.,
Defendants.

INTRODUCTION
The Court has jurisdiction to consider Plaintiffs’ challenges to the Executive Order’s
refugee provisions. Defendants have appealed the Court’s injunction of § 2(c), and so the
Court lacks jurisdiction over that injunction. But the Court declined to enjoin § 6 at this
time, and no party has appealed that decision, and so the Court retains jurisdiction to
consider enjoining it. While the legal issues surrounding § 6 and § 2(c) overlap to some
degree, such analytical overlap does not divest a district court of jurisdiction. Nor will a
ruling on § 6 interfere with the Fourth Circuit’s consideration of this Court’s order
enjoining § 2(c). Accordingly, there is no jurisdictional bar to the Court’s consideration
of Plaintiffs’ constitutional challenges to § 6.
The Court should rule on Plaintiffs’ constitutional claims regarding § 6 with the
benefit of full briefing. In briefing the previous motion for preliminary injunction, neither
party raised the possibility that discriminatory motives could animate § 2(c) but not § 6.
This means that, as the Court noted in its March 16 opinion, it has not yet received fully

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developed evidence and arguments about whether an objective observer would understand
§ 6 to have been motivated by the same purpose as § 2(c). The evidence to that effect is
voluminous. Plaintiffs’ proposed motion would allow the Court to consider it in the first
instance.
There is also no prudential reason not to move forward with both of Plaintiffs’
challenges to § 6. While that provision is currently subject to a temporary restraining order,
there is no guarantee that the TRO will remain in effect. If it does not, Plaintiffs will suffer
severe and irreparable harms during the pendency of this litigation. To preserve its ability
to render full relief in this case, the Court should consider both of Plaintiffs’ claims against
§ 6 now.
BACKGROUND
On January 27, 2017, President Trump signed an Executive Order (the “January 27
Order”) that, among other things, barred entry to the United States by nationals of seven
predominantly Muslim countries for 90 days, barred refugee admissions for 120 days, and
lowered the number of refugee admissions for fiscal year 2017 from 110,000 to 50,000.
Plaintiffs filed this action on February 7, 2017, challenging the Executive Order in its
entirety.

A district court in Washington enjoined the nationality and refugee bans

nationwide on February 3, 2017, and the Ninth Circuit denied a stay. See Washington v.
Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017), stay denied, 847
F.3d 1151 (9th Cir. 2017).
Because the Washington injunction barred enforcement of the nationality and
refugee bans—and because federal officials indicated a revised executive order was
forthcoming—Plaintiffs moved to enjoin only the reduction in refugee admissions on
statutory grounds on February 22, 2017. Pls.’ Mot. for Prelim. Inj. of § 5(d), ECF No. 64.
2

The President subsequently signed a new version of the Executive Order on March 6, 2017
(the “March 6 Order”), and Plaintiffs amended their Complaint and filed a motion to enjoin
the March 6 Order in its entirety, including the amended nationality and refugee provisions
contained in §§ 2 and 6 of the revised Order, respectively. Pls.’ Mot. for Prelim. Inj. of EO,
ECF No. 95.
The Court granted Plaintiffs’ motion in part on March 16, 2017, enjoining § 2(c) of
the Executive Order. Mem. Op., ECF No. 149. The Court held that Plaintiffs were likely
to succeed in their claim that a reasonable observer would understand that the primary
purpose of the nationality ban in § 2(c) was to discriminate against Muslims, and that it
therefore violated the Establishment Clause. Id. at 38. The Court declined to enjoin § 6 at
that time, explaining that Plaintiffs had not “sufficiently develop[ed]” the argument that the
refugee provisions would be similarly perceived. Id. at 40-41. Defendants noticed an appeal
of the Court’s injunction of § 2(c) on March 17, 2017. Notice of Appeal, ECF No. 160.
On March 20, 2017, Plaintiffs filed a letter requesting a pre-motion conference to
set a briefing schedule for a motion to enjoin § 6 on constitutional grounds. Pls.’ Letter,
ECF No. 168. They explained that their motion would rely on the Court’s existing legal
conclusions with respect to the Establishment Clause and would develop the evidence
regarding how an objective observer would understand the purpose of § 6. Id. at 1. At the
telephonic conference and in a subsequent Order, the Court directed the parties to submit
briefs regarding the Court’s jurisdiction to decide Plaintiffs’ claims against § 6 in light of
Defendants’ appeal of the § 2(c) injunction. Order, ECF No. 169.
ARGUMENT
The Court has jurisdiction over the parts of this case that are not currently before
the Fourth Circuit. The government agrees that the Court has jurisdiction to consider
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Plaintiffs’ challenge to § 6 on statutory grounds. But it maintains that the Court lacks
jurisdiction to consider whether that same provision violates the Establishment Clause—
an issue that is not currently before the Fourth Circuit. This position is incorrect. An
appeal of an interlocutory order does not divest the district court of jurisdiction over
provisions that are not the subject of the appeal. The legality of § 6 is not before the Fourth
Circuit, because neither party has appealed this Court’s decision not to enjoin it. See
Notice of Appeal, ECF No. 160, at 1 (appealing only the order “enjoining enforcement of
Section 2(c)”). An order enjoining § 6 would not interfere with the Fourth Circuit’s
consideration of the injunction that Defendants have appealed. And while the Fourth
Circuit’s decision as to § 2(c) might impact this Court’s analysis of § 6, that kind of
analytical overlap does not divest jurisdiction. At most, such overlap can, in some cases,
support a discretionary stay of proceedings in the district court. As explained below,
however, § 6 threatens irreparable harm to Plaintiffs, and so a stay would be inappropriate.
See infra Part II. The Court should therefore grant Plaintiffs leave to file the requested
motion.
I. The Court Has Jurisdiction over Plaintiffs’ Challenges to § 6
In general, a notice of appeal “divests the district court of its control over those
aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co.,
459 U.S. 56, 58 (1982) (emphasis added). That principle deprives this Court of jurisdiction
to vacate or alter the decision that Defendants have appealed—the injunction of § 2(c)—but
nothing more.
An appeal of a preliminary injunction “does not defeat the district court’s power to
proceed further with the case.” Hunter v. Redmer, No. JKB-15-2047, 2015 WL 8479211,
at *2 (D. Md. Dec. 10, 2015). Instead, other than “the interlocutory order,” the rest of the
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case “‘is to proceed in the lower court as though no such appeal had been taken.’” Id.
(quoting Ex parte Nat’l Enameling & Stamping Co., 201 U.S. 156, 162 (1906)); see also
Columbus-America Discovery Group v. Atlanta Mut. Ins. Co., 203 F.3d 291, 301-02 (4th
Cir. 2000) (same); Wright & Miller, Fed. Prac. & Proc. § 3921.2 (3d ed. 2015) (divestment
extends to “the very order that has been appealed,” but not “decision of the merits”). An
interlocutory appeal thus only divests a district court of jurisdiction over the precise order
that is on appeal. The Court retains its authority to address provisions that are not before
the Fourth Circuit—including whether § 6 should be enjoined on constitutional grounds.
It is true that there is overlap between the law and facts that bear on the two
provisions’ compliance with the Establishment Clause. But overlapping analyses do not
divest jurisdiction; indeed, it is well-settled that a district court has jurisdiction to decide the
merits of a case even when the identical issues are pending before the court of appeals on
review of a preliminary injunction. See, e.g., Moltan Co. v. Eagle-Pitcher Indus., Inc., 55
F.3d 1171, 1174 (6th Cir. 1995); Society for Animal Rights, Inc. v. Schlesinger, 512 F.2d
915, 918 (D.C. Cir. 1975); Hunter, 2015 WL 8479211, at *2; Wright & Miller, Fed. Prac.
& Proc. § 3921.2. That could not be true if analytical overlap divested jurisdiction. A
plaintiff’s success on the merits is intimately related to her likelihood of success on the same
claim; an appellate court’s resolution of the latter is sure to affect the trial court’s resolution
of the former. And yet district courts retain jurisdiction to proceed to the merits regarding
the exact same provisions. Necessarily, then, they must also retain jurisdiction to consider
different but related provisions, as is the case here.1

1

Defendants confirm as much in their position that the Court has jurisdiction to consider
Plaintiffs’ Refugee Act claim challenging § 6(b). Despite the fact that questions of Article
III standing to challenge § 2(c) are currently pending before the Fourth Circuit, Defendants
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The need to retain jurisdiction is particularly acute where plaintiffs face irreparable
harm during the pendency of an appeal. See Wright & Miller, Fed. Prac. & Proc. § 3921.2
(“[C]ases involving injunctive relief are apt to present an urgent need for action,” especially
where the “[d]enial of an injunction can destroy the capacity to grant effective relief after
trial.”); Free Speech v. FEC, 720 F.3d 788, 791-92 (10th Cir. 2013) (“The desirability of
prompt trial-court action in injunction cases justifies trial-court consideration of issues that
may be open in the court of appeals.”) (citation omitted). Indeed, appeals of preliminary
injunctions “would come at high cost if the trial court were required to suspend proceedings
pending disposition of the appeal.” Wright & Miller, Fed. Prac. & Proc. § 3921.2 (cited in
Hunter, 2015 WL 8479211, at *2). Courts in this circuit have recognized that the divestment
rule does not prevent district courts from “maintain[ing] the status quo” during the appeal.
Crutchfield v. U.S. Army Corps of Engin’rs, 230 F. Supp. 2d 673, 679-80 (E.D. Va. 2002).
That concern is precisely borne out here. The legality of § 6 is not before the Fourth Circuit,
and § 6 threatens to cause distinct and irreparable harm if the Hawai’i TRO were vacated.
See infra Part II.
Moreover, the reason for the divestment rule—avoiding interference with the
appeal—is absent here. A district court loses jurisdiction over an appealed order because
“power to dissolve or modify an order pending appeal is power to destroy the jurisdiction
of the court of appeals or to force reconsideration.” Wright & Miller, Fed. Prac. & Proc. §
3921.2; see Lewis v. Tobacco Workers’ Int’l Union, 577 F.2d 1135, 1139 (4th Cir. 1978)
(describing situations in which a district court order vacating or substantially modifying an
injunction would pull the rug out from under a pending appeal). That concern simply does
concede that this Court retains authority to address closely related questions of standing to
challenge § 6.
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not exist when a court considers a separate provision—one that is not being considered on
appeal. Because the provisions are different, “[a] decision in this Court granting or denying
injunctive relief . . . will not impede in any way the Fourth Circuit’s consideration of the
issues on appeal.” Crutchfield, 230 F. Supp. 2d at 680; see also id. (holding that district
court had jurisdiction over motion to enjoin a construction project, despite an appeal of the
court’s decision invalidating the construction permit, because in considering the injunction,
the court would not be “called upon to, and need not, alter” the order on appeal).2
To be sure, district courts sometimes choose to stay proceedings when an appeal
might illuminate other issues in the case. But they do so as a matter of discretion, see
Maryland v. Universal Elections, Inc., 729 F.3d 370, 379-80 (4th Cir. 2013), not
jurisdiction, and for the reasons described below, the Court should not exercise its discretion
to stay any of Plaintiffs’ claims against § 6.
II.

Prudential and Equitable Factors Weigh in Favor of the Court’s
Exercise of Jurisdiction over Plaintiffs’ MPI

Prudential and equitable factors strongly support the Court’s exercise of jurisdiction
to consider all of Plaintiffs’ challenges to § 6. Most critically, the temporary restraining
order in Hawai’i v. Trump, ___ F. Supp. 3d ___, No. 17-cv-50 DKW-KSC, 2017 WL

2

Even as to the appealed order itself, a district court may take a number of actions, so long
as they do not interfere with the appeal. See, e.g., Dixon v. Edwards, 290 F.3d 699, 709
n.14 (4th Cir. 2002) (district court retained jurisdiction to issue a “limited modification of
its injunction” after notice of appeal, because the modification “aided in th[e] appeal”);
Grand Jury Proceedings Under Seal v. United States, 947 F.2d 1188, 1190 (4th Cir. 1991)
(district court retained jurisdiction to publish a written opinion after notice of appeal,
because the order “aid[ed] the appeal by giving this Court a written order to review”); Union
Oil Co. v. Leavell, 220 F.3d 562, 565-66 (7th Cir. 2000) (district court retained jurisdiction
to enforce appealed injunction). Here, a decision on Plaintiffs’ proposed motion could not
possibly interfere with the appeal of the order enjoining § 2(c). Absent a stay pending
appeal, that injunction will remain in place during the appeal regardless of whether or not
the Court also enjoins § 6, and regardless of the grounds for enjoining it.

7

1011673 (D. Haw. Mar. 15, 2017), has halted enforcement of § 6 and is the only thing
standing between Plaintiffs and imminent, irreparable harm.3 Absent this temporary order,
the March 6 Order’s 120-day refugee ban would go back into effect, and Defendant agencies
would revert to acting under a 50,000 ceiling on refugee admissions, effectively freezing
the refugee resettlement process, thereby leaving thousands of refugees stranded in
dangerous situations and irreparably harming Plaintiffs and their clients.
The irreparable harm that the enforcement of § 6 would inflict on Plaintiffs and
Plaintiffs’ clients is indisputable. See Pls.’ Mot. for a Prelim. Inj. of § 5(d), ECF No. 64, at
20-23; Pls.’ Reply Mem., ECF. No. 98, at 2-9. Before the Hawai’i TRO, the Bureau of
Population, Refugees and Migration (“PRM”) of the U.S. Department of State drastically
cut flight bookings for refugees from well over an average of 2,000 per week to only 400
per week; it also notified refugee resettlement agencies that in compliance with § 5(d) of the
January 27 Order, it would further reduce future weekly arrivals based on a program of
50,000 refugee admissions for the remainder of FY 2017. See (First) Hetfield Decl. ¶ 11 &
Ex. 1 thereto, ECF No. 64-1. In addition, “circuit rides” by USCIS officials to interview
and screen refugees had ceased, resulting in a freeze in United States Refugee Admissions
Program (“USRAP”) for the many thousands of refugees still being processed. Hall Decl.
¶ 22, ECF No. 64-1.
In this past week following the Hawai’i TRO of § 6, PRM has instructed refugee
resettlement agencies to resume normal bookings and has increased weekly arrivals from
400 to 900. Although this current increase in bookings will not allow admissions for FY
2017 to reach the 110,000 refugees the United States had committed to accepting at the
beginning of the fiscal year, weekly bookings may rise further if § 6 remains enjoined and
PRM has clearer guidance as to the number of refugees it may admit. Predictability in the
3

The federal government has not yet appealed the Hawai’i TRO. Currently the parties are
briefing arguments related to the State’s motion to convert the TRO into a preliminary
injunction, set for hearing on March 29, and the parties have stipulated that the TRO will
remain in place until the district court resolves that motion.
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United States’ refugee admissions may also allow USRAP and its many moving parts to
restart and resume more normal operations after weeks of uncertainty that have unduly
disrupted the processing and resettlement of refugees. In the meantime, the temporary
restraining order of § 6—including its 120-day ban on refugee admissions and its drastic
and unprecedented cut to the annual admissions level—means that every week, 500
additional refugees can escape persecution and danger and be resettled to the United States
through the process created by Congress.
The public interest and judicial economy also weigh in favor of the court’s exercise
of jurisdiction over Plaintiffs’ motion. Granting Plaintiffs’ leave to file the proposed motion
would further the orderly resolution of the issues before this Court. In its Memorandum
Opinion, ECF No. 149, the Court held that the briefing thus far had not sufficiently
developed the arguments specific to the Executive Orders’ refugee provisions.

The

proposed motion would do just that, allowing this Court to rule on that question with the
benefit of a full evidentiary record and a less compressed briefing schedule.
There are numerous indications that the disproportionate representation of Muslims
in USRAP (and in the global refugee population) was a principal motivation behind
including the refugee provisions in President Trump’s “Muslim ban” executive order.
Indeed, since the Court entered its preliminary injunction, the President has publicly
affirmed that the revised Order carries on the intent of the original Order, whose refugee
provisions facially discriminated on the basis of religion. Hours after the TRO of §§ 2 and
6 was issued in Hawai’i, President Trump stated at a rally in Nashville as follows:
A judge has just blocked our executive order on travel and refugees coming
into our country from certain countries. The order [U.S. District Judge
Derrick Watson] blocked was a watered-down version of the first order that
was also blocked by another judge and should have never been blocked to
start with. This new order was tailored to the dictates of Ninth Circuit’s—in
my opinion—flawed opinion.
....

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Remember this. I wasn’t thrilled, but the lawyers all said, “oh, let’s tailor
it.” This is a watered-down version of the first one. This is a watered-down
version. And let me tell you something—I think we ought to go back to the
first one and go all the way, which is what I wanted to do in the first place.4
Plaintiffs’ proposed motion will develop the arguments and record necessary for the
Court to decide whether the refugee provisions are part of the Orders’ broader effort to
exclude Muslim immigrants from the United States, and would be understood as such by
the reasonable observer. This Court should be the one to rule on that question in the first
instance. See Moore Bros. Co. v. Brown & Root, Inc., 207 F.3d 717, 727 (4th Cir. 2000)
(“[F]actual questions are properly considered by the district court in the first instance.”).
At a minimum, the prudential and equitable concerns outlined above weigh in favor
of allowing the parties to brief the motion for the Court’s consideration on a reasonable
briefing schedule while Defendants’ appeal is pending at the Fourth Circuit. This will allow
the case to continue forward and enable the Court to decide, depending on developments in
Hawai’i and the Fourth Circuit, whether and when to rule. See, e.g., Hunter, 2015 WL
8479211, at *2.
CONCLUSION
For the reasons outlined above, Plaintiffs respectfully request that this Court grant
them leave to file a motion for a preliminary injunction on § 6 on constitutional grounds, to
be considered at the same time as their fully-briefed motion to preliminarily enjoin § 6(b)
on statutory grounds.

Respectfully submitted,

Dated: March 24, 2017

/s/ Nicholas Espíritu
Karen C. Tumlin†
Nicholas Espíritu†

Omar C. Jadwat†
Lee Gelernt†

4

The
full
video
of
President
Trump’s
https://www.youtube.com/watch?v=x2hzpyy4X1s; the
between 20:00 and 25:45 of the video.
10

speech
is
available
at
above-cited portion occurs

Hina Shamsi†
Hugh Handeyside†
Sarah L. Mehta†
Spencer E. Amdur†
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]
[e-mail]
[e-mail]

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

† Appearing pro hac vice

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)
11

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]@aclu-md.org
[e-mail]

Counsel for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of March, 2017, I electronically filed the
foregoing Motion for Leave to File Motion for Preliminary Injunction of § 6 on
Constitutional Grounds using the Court’s CM/ECF system, causing a notice of filing to be
served upon all counsel of record.

/s/ Nicholas Espíritu
Nicholas Espíritu

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