International Refugee Assistance Project et al v. Trump et al

Filing 205

Third MOTION for Preliminary Injunction by HIAS, Inc., International Refugee Assistance Project, Jane Doe # 2, John Does 1 & 3, Muhammed Meteab, Middle East Studies Association of North America, Inc. (Attachments: # 1 Appendix Joint Record)(Jadwat, Omar)

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

INTERNATIONAL REFUGEE
ASSISTANCE PROJECT, et al.,

Plaintiffs,

v.

DONALD TRUMP, et al,

Defendants.

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

PLAINTIFFS’
MOTION
FOR
PRELIMINARY INJUNCTION

A

TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 1
LEGAL STANDARD ..................................................................................................................... 7
ARGUMENT .................................................................................................................................. 7
I. Plaintiffs Have Standing to Bring Their Claims ................................................................. 8
II. EO-3 Violates the Immigration and Nationality Act. ....................................................... 11
A. The President’s Delegated Authority Does Not Permit Him to Override
Congress’s Policy Judgments. .................................................................................... 12
B. EO-3 Exceeds the President’s Delegated Statutory Authority Under § 1182(f). ....... 14
1. EO-3 Conflicts with Congress’s Response to the Same Vetting and Security
Concerns. .............................................................................................................. 14
2. EO-3 Lacks an Adequate Finding to Justify Its Dramatic Departure from
Congress’s Scheme. .............................................................................................. 17
3. EO-3 Conflicts with Congress’s Standards for Reviewing Visa Applications. .... 19
C. EO-3 Also Violates the INA’s Anti-Discrimination Mandate. ................................... 20
D. There is No Justiciability Bar to Plaintiffs’ Statutory Claims. ................................... 22
III. EO-3 Violates the Establishment Clause and Equal Protection........................................ 24
IV. Plaintiffs Will Suffer Irreparable Injury in the Absence of an Injunction. ....................... 31
V. The Balance of the Equities and the Public Interest Favor Issuance of an Injunction...... 32
CONCLUSION ............................................................................................................................. 33

i

INTRODUCTION
For the third time since taking office, President Trump has issued an order banning
hundreds of millions of people from entering the United States. Yet again, the overwhelming
majority of those who will be blocked from the country are Muslim.

The ban, like its

predecessors, delivers on the President’s longstanding promise to exclude Muslims from the
United States, striking at the very core of our Nation’s founding values of religious freedom and
equality. Unlike its predecessors, the new ban is indefinite, and potentially permanent. For
those within its immense scope, it replaces Congress’s detailed admissions system with a new
one designed by the President. But Congress has not authorized the President to discard and
replace its own immigration policy choices, and the Constitution does not allow him to condemn
and disfavor a religion.
If the ban goes into effect, the damage will be immediate and widespread. It will separate
families, disrupt businesses, imperil courses of study, block needed medical treatment, and
prevent academic, artistic, scientific, and cultural exchange. Above all, it will send a message to
Muslims everywhere that they are not welcome in this country. This motion therefore seeks a
preliminary injunction of the visa and entry restrictions imposed by Proclamation No. 9645
(“EO-3”).
BACKGROUND
On his eighth day in office, the President signed the first ban order, barring nationals of
Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for 90 days. 82 Fed. Reg. 8977 (“EO-1”).
As this Court previously observed, before the President settled on a policy of banning nationals
of Muslim-majority countries en masse, there was “no consultation with the Department of State,
the Department of Defense, the Department of Justice, or the Department of Homeland

1

Security.” Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 545 (D. Md.
2017).High-level Executive Branch officials were “actively shielded” from learning the order’s
contents until after it was issued. IRAP v. Trump, 857 F.3d 554, 632 (4th Cir. 2017) (Thacker, J.,
concurring). EO-1 fulfilled months of promises to ban Muslims from the United States—
promises the President stood by after his election and on the day he signed the order, and
justified with assertions that “Islam hates us” and “we’re having problems with the Muslims, and
we’re having problems with Muslims coming into the country.” See id. at 576. The ban was
swiftly challenged and enjoined. The administration decided to replace rather than defend it.
See id. at 573.
The second iteration of the ban, signed March 6, 2017, reproduced the original in most
respects. 82 Fed. Reg. 13209 (“EO-2”). It again barred for 90 days nationals of six of the seven
original countries, but omitted Iraq. EO-2 § 2(c). Like its predecessor, it provided for a
worldwide review of vetting information provided by other countries, EO-1§ 3(a)-(b); EO-2 §
2(a)-(b); a mechanism to impose an indefinite ban following that review process, EO-1§ 3(e)-(f);
EO-2 § 2(e)-(f); refugee-related provisions, EO-1 § 5; EO-2 § 6; and directions to publish the
number of “honor killings” committed in the United States by foreign nationals, EO-1§§ 1,
10(a)(iii); EO-2 § 11(a)(iii).
This Court enjoined Section 2(c) before it went into effect, as did another district court,
and both decisions were affirmed in relevant part. IRAP, 857 F.3d at 604-05; Hawai‘i v. Trump,
245 F. Supp. 3d 1227 (D. Haw. 2017), aff’d in relevant part, 859 F.3d 741 (9th Cir. 2017). In
affirming the injunction, the Fourth Circuit explained that the case presented a “highly unique set
of circumstances,” in light of the “direct link between the President’s numerous campaign
statements promising a Muslim ban that targets territories, the discrete action he took only one

2

week into office executing that exact plan, and EO-2, the ‘watered down’ version of that plan
that ‘get[s] just about everything,’ and ‘in some ways, more.’” 857 F.3d at 599-600.
On September 24, the President forged the next link in that same chain of events: EO-3.
By its own terms, EO-3 grows out of EO-2 and implements aspects of Section 2 of that order.
Section 2 of EO-2, like Section 3 of EO-1 before it, had directed reviews of the information other
countries provide to facilitate the United States’ vetting of visa applicants. EO-1 § 3(e); EO-2 §
2(e). It further directed that, once the vetting review was complete, the Secretary of Homeland
Security would submit “a list of countries” to be subjected to an indefinite ban. EO-3 cites the
study and DHS list of countries envisioned by EO-1 and EO-2, see EO-3 §§ 1(c), 1(h), although
the ban it actually imposes is different from the DHS list and the study’s findings, see, e.g., EO-3
§§ 1(h)(i), 2(h), 1(g).

In EO-3, the President has followed through on EO-1 and EO-2’s

promises of a subsequent indefinite ban. That ban encompasses nationals of eight countries: five
of the six countries barred by EO-1 and EO-2—Iran, Libya, Somalia, Syria, and Yemen—along
with Chad, North Korea, and Venezuela. Nationals of every banned country except Venezuela
seeking immigrant visas, which lead to permanent resident status and the possibility of U.S.
citizenship, are banned. Restrictions on nonimmigrant visas vary among the banned countries.
See Second Am. Compl. at 37 (chart comparing bans imposed by the three orders).
The new ban, like the first two, will disproportionately ban Muslims. EO-2 barred
approximately 180 million people, a large majority of whom are Muslim. IRAP, 857 F.3d at 609
(Keenan, J., concurring in part and concurring in the judgment); IRAP, 241 F. Supp. 3d at 545.
The new ban also bars approximately 180 million people. 1 Of those, nearly 70% are Muslim. 2

1

Second Hausman Decl. Ex. BB, J.R. 725-32 (World Listing Factbook, Central Intelligence
Agency). Plaintiffs have submitted additional evidence along with this motion. That evidence
supplements the existing Joint Record, which plaintiffs incorporate here.
3

Even that figure vastly understates the disproportionate practical impact on Muslims. The five
original countries and Chad are majority Muslim, and almost everyone who will be prevented
from obtaining visas or entering the United States by EO-3 is from one of those six majorityMuslim nations. In contrast, virtually no one from North Korea or Venezuela—the two countries
named in EO-3 that are not majority-Muslim—will be affected in that way. North Korea
accounts for a miniscule number of visas. And Venezuelans are not banned as a group; instead,
only officials of certain Venezuelan government agencies and their families are banned, and even
then only from obtaining tourist-type visas. Data from 2016 indicate, for example, that while
EO-3 would have barred 12,998 Yemenis and 7,727 Iranians from obtaining immigrant visas, it
would have banned 9 North Koreans and no Venezuelans. 3
To justify the bans, EO-3 asserts that countries were assessed against a set of baseline
criteria.

But EO-3 acknowledges that even though Somalia (a majority-Muslim country)

satisfies the government’s baseline criteria, it was banned anyway, and that even though
Venezuela (a country that is not majority-Muslim) fails to meet the baseline, it was effectively
exempted. EO-3 §§ 2(f), 2(h). Moreover, while EO-3 acknowledges that Iraq also did not meet
the baseline criteria (but was not banned), it does not purport to disclose the entire list of
countries that failed to meet the baseline criteria; additional countries may have been excluded
from the ban at the final stage.

2

First Hausman Decl. Ex. R, J.R. 184-98 (World Listing Factbook, Central Intelligence
Agency). These figures do not include Venezuela, as its ban is not applicable to the entire
country, only certain officials and their families—and it is unclear how many will be affected.
Without North Korea, which allows virtually none of its nationals to travel to the United States,
the ban covers approximately 150 million people.
3
Second Hausman Decl. Ex. DD, 741 (Kathryn Casteel & Andrea Jones-Rooy, “Trump’s Latest
Travel Order Still Looks a Lot Like a Muslim Ban,” FiveThirtyEight (Sept. 28, 2017)).
4

As to Somalia and the other countries banned by all three versions, EO-3 relies on
general country conditions information very similar to that cited in EO-2. Like its predecessors,
EO-3 does not cite any visa vetting failures or otherwise explain how the President concluded
that existing vetting procedures were or might be inadequate. And the government has declined
to release a full or redacted version of the July 9 or September 15 DHS reports that EO-2 ordered
and EO-3 cites. See EO-3 §§ 1(c), 1(h).
EO-3 shares the basic structure of both EO-1 and EO-2. Each invokes 8 U.S.C. §
1182(f), and each bars nationals of various countries from obtaining visas or entering the United
States, subject to a case-by-case waiver procedure. As the Fourth Circuit observed, such use of
nationality was the “exact form” the President had earlier promised for his Muslim ban. IRAP,
857 F.3d at 594. Then-candidate Trump “call[ed] for a total and complete shutdown of Muslims
entering the United States,” citing his belief that “Islam hates us,” and that “[w]e can’t allow
people coming into this country who have this hatred.” Id. (internal quotation marks omitted,
alterations in original). He then convened a commission to formulate a plan to implement a
Muslim ban “legally.” J.R. 247. The commission recommended using nationality as a proxy for
religion. Id. Trump then announced “that he would attempt to circumvent scrutiny of the
Muslim ban by formulating it in terms of nationality, rather than religion,” explaining that
“[p]eople were so upset when I used the word Muslim” that he would instead start “talking
territory instead of Muslim.”

IRAP, 857 F.3d at 594 (internal quotation marks omitted).

Consistent with these promises, EO-1, EO-2, and EO-3 all ban enormous numbers of people,
disproportionately Muslim, purportedly on the basis of nationality.
Even the mechanism of the ban, § 1182(f), directly connects the President’s promises to
each version of the ban. Then-candidate Trump made the initial pledge to ban Muslims in the

5

days following an attack in San Bernardino, California. A year and a half later, he noted that he
had “called for a ban after San Bernardino, and was met with great scorn and anger but now,
many are saying I was right to do so.” 4 He reiterated his call for a ban, and explained that he
would impose it pursuant to the “power to suspend entry into the country” under § 1182(f). Id.
He further indicated that a temporary ban would be followed by more permanent measures. Id.
And as President, he has in fact invoked § 1182(f) to ban large numbers of Muslims, first
temporarily and now indefinitely.
Finally, all three versions of the order share a decisionmaker: the person who promised a
Muslim Ban. Candidate Trump promised a ban on Muslims, and never repudiated that promise.
President Trump, one week into office, issued EO-1 without consulting any of the relevant
national security agencies. The same day, he told the country that the ban’s waiver provision
was meant to benefit Christians over Muslims. See J.R. 201. After he issued EO-2 to replace it,
he repeatedly asserted that the alterations were urged only by his lawyers, and in his view he
“should have stayed with the original.” 5 He announced his plan to impose a “much tougher
version,” even before EO-2’s review process was underway. Id. And he called for “the travel
ban into the United States” to “be far larger, tougher and more specific.” 6 Now, he has issued
EO-3, the indefinite Muslim ban he had planned and promised all along.
Plaintiffs include individuals whose family members are seeking visas and will be subject
to EO-3’s indefinite ban. They also include organizational plaintiffs, whose clients and members
are in the same position, and which will suffer institutional injuries from the ban.
4

They

Second Hausman Decl. Ex. E, J.R. 525 (“Transcript: Donald Trump’s National Security
Speech,” Politico, June 13, 2016).
5
Second Hausman Decl. Ex. S, J.R. 664 (“Donald J. Trump (@realDonaldTrump), Twitter, June
5, 2017).
6
Second Hausman Decl. Ex. Z, J.R. 705 (“Trump urges ‘larger, tougher’ travel ban after London
bombing,” The Hill, Sep. 15, 2017).
6

challenge EO-3’s entry and visa restrictions as a violation of the Establishment Clause, equal
protection, and the Immigration and Nationality Act (“INA”). The ban goes into effect for their
relatives, clients, and members on October 18, and they respectfully move this Court for a
preliminary injunction before or soon after that date.
LEGAL STANDARD
The Court should issue a preliminary injunction when plaintiffs show: (1) a likelihood of
success on the merits, (2) that they are likely to suffer irreparable harm in the absence of such
relief, (3) that the balance of equities tips in their favor, and (4) that an injunction is in the public
interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). To show a likelihood of
success on the merits, plaintiffs “need not show a certainty of success.” Pashby v. Delia, 709
F.3d 307, 321 (4th Cir. 2013).
ARGUMENT
Plaintiffs are likely to succeed on the merits of their statutory and constitutional claims,
and an injunction is warranted. The individual and organizational plaintiffs have standing to
challenge EO-3, which condemns and marginalizes them and their clients and members;
threatens to indefinitely separate them from loved ones; and impedes the work and mission of the
organizational plaintiffs. The ban violates the INA by claiming a sweeping new power to
override the policy judgments of Congress without any finding of actual problems with visa
vetting, and by establishing just the kind of national origins visa system Congress emphatically
rejected. Nor is there any justiciability barrier to this Court’s consideration of such statutory
claims. The new ban also violates the Establishment Clause (as well as equal protection). It is
yet another attempt to make good on the President’s promised Muslim ban, and so—as the
Fourth Circuit held with regard to its immediate predecessor—is not bona fide and violates the

7

Constitution’s guarantee of religious neutrality. Finally, plaintiffs face imminent and irreparable
injury if the ban is not enjoined, outweighing any countervailing government interest in
enforcing this unconstitutional ban.
I.

Plaintiffs Have Standing to Bring Their Claims
“[O]ne party with standing is sufficient to satisfy Article III’s case-or-controversy

requirement.” Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014) (quotation marks omitted).
In this case, every plaintiff has standing.
The individual plaintiffs include Muslim U.S. citizens and lawful permanent residents in
the United States seeking visas for their barred loved ones. This Court and the Fourth Circuit
have found standing in identical circumstances. See IRAP, 857 F.3d at 582-87. The ban
threatens to upend the plaintiffs’ plans to reunite with family, subjects them to “[f]eelings of
marginalization and exclusion,” Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 607
(4th Cir. 2012), and it conveys the message “that they are outsiders, not full members of the
political community.” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309 (2000) (quotation
marks omitted).
The plaintiffs are all personally injured by EO-3’s message of condemnation and
exclusion. For example, Mr. Mashta no longer feels at home in this country, and was unable to
sleep after the announcement of EO-3; he had to take time off from work as a result. Mashta
Decl. ¶¶ 3-4, J.R. 467. John Doe #5, who has personally experienced anti-Islamic harassment,
feels that with EO-3 “the government is legitimizing the bad things that people say about
Muslims.”

Doe #5 Decl. ¶ 8, J.R. 447.

For Ms. Khazaeli, the bans have “taken the

discrimination that my family has previously endured because people have seen us as Muslim
and made it into law.” Khazaeli Decl. ¶ 18, J.R. 466. John Doe #4 feels “demeaned” by EO-3’s

8

religious intent, and he has perceived the bans as “collective punishment.” Doe #4 Decl. ¶¶ 910, J.R. 461-62. The same is true for YAMA’s and MESA’s members, see Mubarez Decl. ¶¶ 12, 13, J.R. 481, 484; Second Mesa Decl. ¶ 4, J.R. 428, clients of AAANY and IRAP, see IssaIbrahim Decl. ¶ 15, J.R. 440; Third Heller Decl. ¶¶ 15-16, 24, J.R. 451, 452, and the other
individual plaintiffs in this case, see, e.g., Second Meteab Decl. ¶¶ 6-8, J.R. 473-74; Second Doe
#1 Decl. ¶¶ 3-4, J.R. 444-45; Second Doe #3 Decl. ¶¶ 3-4, J.R. 458; Ziaolhagh Decl. ¶¶ 8-9, J.R.
479-80.
These harms, which stem from plaintiffs’ “personal contact” with the ban, are
“cognizable forms of injury.” IRAP, 857 F.3d at 582 (quotation marks omitted). See also Awad
v. Ziriax, 670 F.3d 1111, 1120-23 (10th Cir. 2012) (plaintiff had standing to challenge law based
on its allegedly anti-Muslim message); Catholic League for Religious and Civil Rights v. City
and Cty. of San Francisco, 624 F.3d 1043, 1048 (9th Cir. 2010) (plaintiffs had standing to
challenge city’s resolution based on its allegedly anti-Catholic message).
EO-3 indefinitely prolongs the individual plaintiffs’ separation from loved ones. See
IRAP, 857 F.3d at 583. Like its predecessors, it “operate[s] by design” to deny visa issuance. Id.
In fact, its impact is even more assured, because it has no end date. Like Doe #1, who the Fourth
Circuit held had standing, many of the individual plaintiffs have petitions on behalf of relatives
whose pending visa applications are “nearing the end of the lengthy immigrant visa process.” Id.
at 584. Mr. Mashta, Ms. Ziaolhagh, Mr. Shirani, and John Doe #4 all have approved I-130
petitions for their relatives, and those relatives have already completed their interviews and are
awaiting the administrative processing of their visas. Mashta Decl., Ex. A ¶ 5, J.R. 470;
Ziaolhagh Decl. ¶¶ 3, 5, J.R. 478-79; Doe #4 Decl. ¶¶ 4-5, J.R. 460-61; Shirani Decl. ¶¶ 3-4, J.R.
476. The other individual plaintiffs also have relatives seeking visas. Doe #5 Decl. ¶ 5, J.R. 447

9

(immediate relative awaiting visa interview); Amirjamshidi Decl. Ex. A ¶¶ 5-6, J.R. 424
(pending visitor visa application); Khazaeli Decl. ¶¶ 10-11, J.R. 464-65 (relative seeking visitor
visa). YAMA’s and MESA’s members are in the same situation. Mubarez Decl. ¶¶ 14-15, 1921, J.R. 484-86; Second Mesa Decl. ¶¶ 5-6, J.R. 429.
The organizational plaintiffs also have standing because EO-3 threatens to divert their
resources, hamper their operations, and damage their core missions. See Havens Realty Corp. v.
Coleman, 455 U.S. 363, 379 (1982) (holding that a diversion of resources constitutes Article III
injury). IRAP has had to divert resources to counsel clients and respond to questions about EO3, and anticipates that this diversion of resources will continue as long as EO-3 remains in effect.
Third Heller Decl. ¶¶ 4-13, J.R. 449-51. AAANY’s immigration services program—which
makes up a third of its budget—will be undermined by EO-3, and AAANY’s immigrationrelated employees’ positions will be at risk. Issa-Ibrahim Decl. ¶¶ 8, 14-17, J.R. 438, 440-41.
And MESA’s mission of bringing together scholars of Middle Eastern Studies will suffer, as will
its finances, which rely heavily on the annual meeting that many members and other scholars
will no longer be able to attend. MESA Decl. ¶¶ 8, 10-19, J.R. 430-33.
In addition, IRAP and AAANY have third-party standing arising from the injuries EO-3
imposes on their clients. Third-party standing is warranted where an organization is itself
injured, where it has a close relation to the individuals whose behalf it raises claims, and where
there is a hindrance to the individuals’ ability to protect their interests. Powers v. Ohio, 499 U.S.
400, 410-11 (1991). Here, IRAP and AAANY are themselves injured, and each has clients who
will be injured by EO-3 and who cannot adequately protect their own interests. AAANY has
more than twenty members with pending visa petitions whose relatives will be banned by EO-3.
Issa-Ibrahim Decl. ¶ 24, J.R. 443; see also id. at ¶¶ 19-23, J.R. 441-42 (describing individual

10

clients’ cases). IRAP also has clients seeking visas for loved ones abroad. Third Heller Decl. ¶¶
21-24, J.R. 452. The clients of these organizations face significant obstacles in raising claims
themselves. See Second Heller Decl. ¶ 27, J.R. 453; Issa-Ibrahim Decl. ¶ 25, J.R. 443.
II.

EO-3 Violates the Immigration and Nationality Act.
The President’s proclamation authority cannot reasonably be read to allow him to

unilaterally revise the INA or to override the immigration law and policy judgments of Congress.
But that is precisely what EO-3 does. It imposes a new immigration system on hundreds of
millions of individuals for the foreseeable future. It conflicts with congressional choices on the
proper response to country-specific vetting concerns, and the standards for adjudicating visa
applications. And it reinstitutes a national-origin-based immigration system and ethnic exclusion
rules that Congress not only renounced, but explicitly outlawed, decades ago. Thus, even
without considering its improper religious purpose, EO-3 exceeds the President’s authority.
In fact, EO-3 itself reads very much “like a statute,” Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 588 (1952)—just not one Congress has enacted. On an indefinite (and
perhaps permanent) basis, it bars all immigrant visas from seven countries. It also goes line-byline through the INA, barring some categories of nonimmigrant visas while permitting others. In
place of Congress’s categories, it introduces new admissions criteria of the President’s choosing:
a requirement to show “undue hardship,” new consular discretion to deny visas to eligible
applicants, and a list of illustrative situations in which the President has determined that visas
“may”—or may not—“be appropriate.” EO-3 § 3(c)(iv). As the Supreme Court explained in a
prior immigration case, the Framers were “acutely conscious” of the danger posed by subjecting
national policy decisions to the “arbitrary action of one person.” INS v. Chadha, 462 U.S. 919,

11

951 (1983). The President cannot lawfully rewrite the INA by proclamation, as he has sought to
do here.
A. The President’s Delegated Authority Does Not Permit Him to Override
Congress’s Policy Judgments.
“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.’” IRAP, 241 F. Supp. 3d at 554 (quoting Abourezk v. Reagan, 785 F.2d 1043, 1061
(D.C. Cir. 1986) (R.B. Ginsburg, J.). The statutory authority the government claims in this case
is boundless. It previously argued on appeal that as long as a § 1182(f) proclamation contains a
bare recital that the banned entry “would be detrimental to the Nation’s interests,” there is no
limit to what parts of the INA the President can cancel or revise. Pet’rs Br. 41, 44, 50, IRAP v.
Trump, No. 16-1436 (U.S.), filed Aug. 10, 2017.
Under the government’s interpretation of § 1182(f), the President could override not only
the provisions of the INA implicated here, see infra, but any others as well. The President could
declare that immigrant workers are detrimental to the interests of the United States, and then ban
all entry on employment-based visas indefinitely. He could declare that U.S. interests require
solely an education- or skills-based immigration system, and then ban all entry on family-based
visas. Under the government’s view, it would be no obstacle that Congress had enacted a
detailed and extensive employment- and family-based immigration system. 8 U.S.C. § 1153(a)
(“Preference allocation for family-sponsored immigrants”); id. § 1153(b) (“Preference allocation
for employment-based immigrants”).
That cannot be right. Congress did not delegate wholesale its authority to make
immigration law. U.S. Const. art. I, § 8, cl. 4. See Zemel v. Rusk, 381 U.S. 1, 17 (1965) (holding
that statute involving “travel controls” could not “grant the Executive totally unrestricted
12

freedom of choice”); see also Kent v. Dulles, 357 U.S. 116, 129 (1958) (facially broad delegation
“construe[d] narrowly” in foreign affairs context in light of constitutional concerns). And it
certainly did not do so through § 1182(f), which it enacted mere months after the Supreme Court
had recognized limitations on Congress’s ability to delegate its power in an immigration case.
See Pub. L. 82-414, §212, 66 Stat. 163 (1952); Carlson v. Landon, 342 U.S. 524, 542-44 (1952)
(holding that a “delegation of legislative power” is “permissible” only when “the executive
judgment is limited by adequate standards”); see also Mahler v. Eby, 264 U.S. 32, 40-41 (1924).
No other President has used § 1182(f) to override Congress’s policy judgments. For
example, President Reagan suspended the entry of certain Cuban nationals in 1986 to retaliate
against the Cuban government for its failure to abide by a migration agreement—a diplomatic
event Congress did not and could not practicably address. Proclamation No. 5,517, 51 Fed. Reg.
30,470 (Aug. 26, 1986). President Bush’s 1992 suspension of unauthorized entry by sea likewise
responded to an urgent influx of unauthorized migrants. Exec. Order No. 12,807, 57 Fed. Reg.
23133 (May 24, 1992); see Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 163-64 (1993)
(describing escalating crisis). Most § 1182(f) suspensions have been far narrower, reaching only
a handful of individuals who had contributed to specific and recent harmful situations abroad.
See generally Kate M. Manuel, Executive Authority to Exclude Aliens, 6-10, Cong. Res. Serv.,
Jan. 23, 2017 (listing § 1182(f) suspensions); 9 Foreign Affairs Manual 302.14-3(B)(1)(b)(2)-(3)
(2016). In each case, the suspension addressed a threat to U.S. interests to which Congress had
not already responded.
That makes sense: Section 1182(f) is meant to grant authority consistent with the INA,
not to permit a President to unilaterally override Congress’s immigration policy judgments.
Accord Abourezk, 785 F.2d at 1049 n.2 (explaining that § 1182(f) applies to “cases that [are] not

13

covered by one of the categories in [the INA]”); Allende v. Shultz, 845 F.2d 1111, 1118-19 (1st
Cir. 1988) (same). 7
B. EO-3 Exceeds the President’s Delegated Statutory Authority Under § 1182(f).
EO-3 extends beyond anything that could plausibly be consistent with the INA. It
rewrites our entire immigration system for hundreds of millions of people—including millions of
Americans—whose visa petitions are now subject to an admission system designed by the
President, not the one enacted by Congress. For those millions of people, EO-3 imposes a
nationality-based regime, where people from certain countries can immigrate to the United
States, and people from other countries by default cannot. And the government can no longer
seek to avoid these grave separation-of-powers questions by painting the ban as a “temporary
pause.” EO-3 supplants the INA’s scheme permanently, unless the President chooses to modify
it. The Supreme Court recently reminded us that “[i]mmigration policy shapes the destiny of the
Nation.” Arizona v. United States, 567 U.S. 387, 415 (2012). With EO-3, the President has
attempted to seize that power for himself alone. But he lacks the authority to do so.
EO-3 contradicts multiple policy judgments Congress has enacted into law. Each conflict
is enough to invalidate the order for exceeding the President’s authority under § 1182(f).
1. EO-3 Conflicts with Congress’s Response to the Same Vetting and
Security Concerns.
EO-3 frames its country bans as a response to the banned countries’ failure to meet a list
of “baseline” criteria related to information-sharing, passport practices, and country conditions.
See EO-3 §§ 1(c)(i)-(iii), 1(d)-(g), 1(h)(ii)-(iii). The government has described these as “new
7

The same is true for 8 U.S.C. § 1185(a). Although EO-3 invokes it and the government has
cited it in this case, the government has explained how § 1185(a) might provide a meaningfully
different suspension authority. That is a sensible concession: Unlike § 1182(f), § 1185(a) does
not speak to entry suspensions, it requires that any conditions on entry be “reasonable,” and it is
subject to the same separation-of-powers principles as § 1182(f).
14

standard[s].” 8 White House, Fact Sheet, Proclamation on Enhancing Vetting Capabilities, at 3,
Sept. 24, 2017. But none of EO-3’s baseline criteria are new: They are lifted directly from the
statutory requirements for a country to participate in the Visa Waiver Program (VWP). 9 8
U.S.C. § 1187. In other words, Congress has considered the same problems—other countries’
“[i]dentity-management information,” sharing of “[n]ational security and public-safety
information,” and “risk” factors.

EO-3 § 1(c)(i)-(iii); compare 8 U.S.C. § 1187(a)(3)(B)

(electronic passports), (c)(2)(D) (lost or stolen passports), (c)(2)(F) (terrorism and public-safety
information sharing), (a)(12)(D)(ii) (terrorist safe havens), (c)(5)(B)(ii) (civil wars, ungoverned
territory), (c)(2)(E) (receiving nationals subject to removal orders). And Congress’s solution,
enacted into law, is to exclude those countries from the VWP, not to outright ban their nationals.
The President has thus nullified Congress’s approach to the same issues.

Under

Congress’s system, if a country fails to meet the VWP requirements, its nationals cannot enter
without visas, and instead must undergo the individualized visa vetting process. 8 U.S.C. §§
1202(a)-(d), 1202(f), 1361. The President, on the other hand, bars people from entering at all
because of their country’s failure to meet the VWP requirements. With EO-3, the President has
simply wiped out Congress’s considered judgment about the proper response to the same
circumstances.
EO-3 similarly rejects Congress’s recent response to conditions in the specific countries it
bans. See Hawai‘i, 859 F.3d at 773-74. Like EO-1 and EO-2, the latest order explains that a
“terrorist presence” or being a “terrorist safe haven” could justify banning a country. EO-3 §§

8

Second Hausman Decl. Ex. EE, J.R. 747 (White House, Fact Sheet, “Proclamation on
Enhancing Vetting Capabilities,” Sept. 24, 2017).
9
The Visa Waiver Program, first enacted by Congress in 1986, allows certain travelers to enter
the United States for temporary visits without visas. See U.S. Dep’t of State, Visa Waiver
Program, https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html.
15

1(c)(iii), 2(a)-(h); compare EO-2 § 1(e).

But Congress has already addressed these same

circumstances. In 2015, Congress considered and addressed the possibility, in light of recent
events, that nationals of certain countries—including those banned in EO-1, EO-2, and now EO3—might prove an unacceptable risk. A number of proposals for outright bans were advanced,
but Congress rejected them all. See, e.g., H.R. 3314, 114th Cong., introduced July 29, 2015; S.
2302, 114th Cong., introduced Nov. 18, 2015.
Instead, Congress decided to amend the VWP to make certain visitors to and dual
nationals of the countries in question ineligible for visa-less travel. See Pub. L. 114-113, div. O,
tit. II, § 203, 129 Stat. 2242 (codified at 8 U.S.C. § 1187(a)(12)). It also empowered the
Executive Branch to add new countries to the list if it finds they are “safe haven[s] for terrorists”
or have a “significant [terrorist] presence.” 8 U.S.C. § 1187(a)(12)(D)(ii). The newly ineligible
visitors and dual nationals are now subject to the same stringent vetting procedures that Congress
has long applied to countries outside the Visa Waiver Program, under which the applicant bears
the burden to produce adequate documentation, see 8 U.S.C. § 1202(a)-(d), must “submit to an in
person interview with a consular officer,” id. § 1202(f), and must be denied a visa if she fails to
convince the consular officer about any ground of inadmissibility, id. § 1361.
By choosing these procedures over more extreme ban proposals, Congress reaffirmed its
confidence in its existing vetting system—and its rejection of blanket nationality-based bans. As
the principal sponsor explained, Congress would now require the individuals in question “to
apply for a visa and go through the formal visa screening process” in “an abundance of caution.”
4 Cong. Rec. H9051 (Dec. 8, 2015) (Rep. Miller); see also id. at H9054-55 (Dec. 8, 2015) (Rep.
Lee) (emphasizing the importance of the visa interview); id. at H9057 (Dec. 8, 2015) (Rep.
Schiff) (emphasizing the “in-person interview” and “more rigorous security screening processes”

16

of the visa application process). Moreover, the Executive Branch’s new authority to suspend
countries from the Visa Waiver Program would provide “leverage” to promote “[i]nformation
sharing” about terrorist threats. Id. at H9051 (Dec. 8, 2015) (Rep. Miller); see H.R. Rep. No.
114-369, at 3-4 (2015) (explaining that this authority would allow the government to pressure
countries “to provide terrorism-related information”).
Notably, both prior orders relied specifically on the 2015 enactment for their list of
banned countries. EO-1 § 3(c); EO-2 § 1(b)(i). EO-3 does not, instead purporting to rely on a
new methodology developed by DHS and other agencies. Yet the lists of banned countries are
strikingly similar: five of the six countries banned by EO-2 remain banned today. It was not
Congress’s intent that those countries be banned altogether, as opposed to subject to the ordinary,
rigorous visa application process. EO-3 nullifies these careful and recent congressional choices.
Despite Congress’s decision to deploy “appropriately targeted improvements” as to these
countries, 4 Cong. Rec. H9057 (Dec. 8, 2015) (Rep. Schiff), EO-3 outright bans them, displacing
Congress’s targeted approach entirely.
2. EO-3 Lacks an Adequate Finding to Justify Its Dramatic Departure from
Congress’s Scheme.
EO-3 provides no rational explanation for why Congress’s system is (or even might be)
inadequate. Based on concerns about the possibility of vetting errors, the order suspends our
immigration system for some 180 million people indefinitely, perhaps permanently. And yet it
cites not a single vetting error of any kind for the banned countries, or any changed
circumstances that prompted the need for this unprecedented action. Neither did either of its
predecessors, even after multiple agencies spent weeks “compil[ing] additional factual support”
to retroactively justify the President’s second ban. Gov’t Stay Reply at 2-3, Doc. 102, No. 171351 (4th Cir. filed Apr. 5, 2017). EO-2 cited only a single terrorism-related incident involving
17

a national of a banned country—a refugee who arrived as a toddler. See EO-2 § 1(h). EO-1
cited no vetting errors in almost two decades. See Aziz v. Trump, 234 F. Supp. 3d 724, 729 (E.D.
Va. 2017) (noting that the government had not “even described the process by which the
president concluded that this action was necessary”). EO-3 does not even acknowledge that its
“baseline” criteria are simply the requirements for VWP participation.
Section 1182(f) does not allow the President to impose such dramatic and lasting changes
based merely on an “unsupported conclusion.” IRAP, 857 F.3d at 609 (Keenan, J., concurring in
part and concurring in the judgment); see Hawai‘i, 859 F.3d at 770-74. Before he can suspend
entry, the President must actually “find that entry of any members of the identified class would
be detrimental to the interests of the United States.” IRAP, 857 F.3d at 609 (Keenan, J.,
concurring in part and concurring in the judgment) (emphasis in original). Without a single word
about vetting failures, or any other reason to question the efficacy of Congress’s existing vetting
system, EO-3 fails this predicate requirement.
In reality, vetting failures for nationals of the banned countries are vanishingly rare. See
David Bier, The Basic Premise of Trump’s Travel Ban is Wrong, Cato Institute, Sept. 26, 2017
(documenting only one fatal attack by a foreign national who radicalized before entering the
United States; that individual was not from one of the banned countries). 10 See also Joint
Declaration of Former National Security, Foreign Policy and Intelligence Officials ¶¶ 6-9, J.R.
754 (finding “no evidence from the government for the why country suddenly needs to shift from
[the] tested system of individualized vetting”). Moreover, in the banned countries, consular
officers have already been denying visa applications at a much higher rate than for other
countries. See Br. for Cato Inst. at 9-11, No. 16-1436, filed Sept. 9, 2017 (denial rates for banned

10

Second Hausman Decl. Ex. CC, J.R. 735-37.
18

countries “79 percent higher than for all other nationalities”).

The Congressional scheme

requires applicants, not their governments, to produce the information necessary to demonstrate
that they are eligible for visas. 8 U.S.C. § 1361. And Congress has repeatedly tightened visa
screening protocols in recent years. See, e.g., Implementing Recommendations of the 9/11
Commission Act of 2007, Pub. L. 110-53, 121 Stat. 266; Intelligence Reform and Terrorism
Prevention Act of 2004, Pub. L. 108-458, §§7201, 7203, 118 Stat. 3638; Enhanced Border
Security and Visa Entry Reform Act of 2002, Pub. L. 107-173, tit. II, 116 Stat. 543. EO-3
provides no reason to discard this system.
3. EO-3 Conflicts with Congress’s Standards for Reviewing Visa
Applications.
EO-3 impermissibly alters the visa-processing standards Congress has chosen. Under
Congress’s standards, a visa applicant must establish, “to the satisfaction of the consular officer,”
that she is eligible for the visa and not subject to any inadmissibility bars, 8 U.S.C. § 1361,
which include a long list of “criminal,” “security,” “terrorist,” and “foreign policy” grounds. Id.
§ 1182(a)(2), (a)(3)(A)-(C), (F); 22 C.F.R. § 40.6(a) (“The burden of proof is upon the applicant
. . . .”); see also, e.g., 8 U.S.C. § 1182(a)(3)(A) (aliens who may engage in unlawful activity); id.
§ 1182(a)(3)(B)(i)(I)-(II) (aliens who have engaged or will engage in terrorist activity); id. §
1182(a)(3)(B)(i)(V) (members of terrorist organizations). If the applicant can establish that she
is eligible and not inadmissible, the consular officer must grant her the visa. Id.
EO-3 conflicts with that approach by imposing new requirements on top of Congress’s.
EO-3 requires an applicant from the banned countries to establish, “to the consular officer’s . . .
satisfaction,” that she does “not pose a threat to the national security or public safety of the
United States.” EO-3 § 3(c)(i)(B). And EO-3 goes further. In addition to satisfying the INA’s
criteria, applicants from the affected countries must also establish that denying entry would
19

cause “undue hardship,” and that “entry would be in the national interest.” EO-3 § 3(c)(i)(A),
(B).
EO-3’s visa requirements thus contradict Congress’s choice of admissions standards.
Congress does not require visa applicants to demonstrate “undue hardship.” 11 And Congress
itself has decided whose “entry would be in the national interest” by providing categories of
people who are eligible for visas. The President cannot simply replace those categories with his
own list. See EO-3 § 3(c)(iv)(A)-(J). Moreover, those additional requirements have nothing to
do with the Order’s supposed rationales: security and vetting. EO-3 does not explain where they
come from. Nor does it make any “find[ing]” as to why the entry of people who cannot meet its
hardship prong, for example, would be “detrimental to the interests of the United States.” 8
U.S.C. § 1182(f).
C. EO-3 Also Violates the INA’s Anti-Discrimination Mandate.
By banning the use of immigrant visas from certain countries, EO-3 resurrects the
discriminatory national-origins quota system that Congress abolished in 1965. That system was
designed to maintain “the ethnic composition of the American people.” IRAP, 241 F. Supp. 3d at
553 (quoting H. Rep. No. 89-745, at 9 (1965)).

President Johnson, in his signing statement,

declared that “for over four decades the immigration policy of the United States has been twisted
and has been distorted by the harsh injustice of the national origins quota system.” Lyndon B.
Johnson, Remarks at the Signing of the Immigration Bill (Oct. 3, 1965). Indeed, the “legislative
history surrounding the 1965 Act is replete with the bold anti-discriminatory principles of the
Civil Rights Era.” Olsen v. Albright, 990 F. Supp. 31, 37 (D.D.C. 1997).

11

Congress knows how to require a showing of hardship when it wants to. See, e.g., 8 U.S.C. §
1229b(b)(1)(D).
20

Congress therefore overhauled and reoriented the entire immigration system, renouncing
both the national-origin-based system and the ethnic racial and discrimination it effectuated.
And Congress specifically provided that “no person shall . . . be discriminated against in the
issuance of an immigrant visa because of the person’s . . . nationality.”

8 U.S.C. §

1152(a)(1)(A). This anti-discrimination mandate could not be clearer. Save for the enumerated
exceptions not at issue here, id., no one can be denied an immigrant visa solely because of his or
her nationality.
Yet that is exactly what EO-3 explicitly does. It provides that nationals of Chad, Iran,
Libya, North Korea, Syria, Yemen, and Somalia may not come to the United States “as
immigrants,” indefinitely, solely because of their nationality. EO-3 § 2(a)-(h); see id. § 1(h)(ii)
(explaining that the Order “distinguish[es] between the entry of immigrants and nonimmigrants”
and bars the use of immigrant visas). The breadth of this nationality-based ban is breathtaking
and has no post-1965 parallel. This is nothing less than a modern-day national-origins system.
Congress has emphatically rejected that approach. See IRAP, 857 F.3d at 635-38 (Thacker, J.,
concurring); Hawai‘i, 859 F.3d at 776-79 (same).
It makes no difference that the Order bars “entry” using immigrant visas, instead of
explicitly barring the visas themselves. The effect is the same. Denying visas to a disfavored
group of visa applicants, and denying entry to that same disfavored group of visa applicants, has
the same practical import. And, in fact, EO-3’s principal effect on immigrants from the banned
countries will be the denial of visas. The government has repeatedly admitted that it will
implement EO-3 “by denying visas.” Br. for the Petitioners, IRAP v. Trump, Nos. 16-1436 &
16-1540, at 51-52. And anyone who already has a visa is not banned. See EO-3 § 3(a)(ii). So
the Order operates to restrict who can receive a visa—a restriction based entirely on nationality.

21

Thus, in its actual operation, EO-3 is not an entry ban, but a visa ban. See Hawai‘i, 859 F.3d at
776-77 (“We cannot blind ourselves to the fact that, for nationals of the” banned countries, the
order “is effectively a ban on the issuance of immigrant visas.”). Indeed, the State Department
describes it as a “Presidential Proclamation on Visas.” 12 It is hard to imagine a clearer attempt to
circumvent § 1152(a).
And, contrary to the government’s argument in prior briefs, §1152(a) does not conflict
with § 1182(f), because the latter does not extend so far as to authorize the President to override
Congress’s policy judgments. See supra Part I.A. But if there were any conflict between the two
provisions, § 1152(a) would control. It is later-enacted and more specific, in that it specifically
addresses nationality discrimination in the issuance of visas, while § 1182(f) is silent as to visa
issuance in general and discrimination in particular. See Radzanower v. Touche Ross & Co., 426
U.S. 148, 153 & n.7 (1976).
D. There is No Justiciability Bar to Plaintiffs’ Statutory Claims.
The government may contend, as it has at other stages of this litigation, that plaintiffs’
statutory claims are non-justiciable. That is not so. The Court has authority to review whether
EO-3 complies with statutory law. See IRAP, 857 F.3d at 587 (rejecting non-reviewability
argument as “a dangerous idea”); Hawai‘i, 859 F.3d at 768-69 (same).
The Supreme Court itself has reached the merits of a statutory challenge to a § 1182(f)
suspension. In Sale, 509 U.S. 155, plaintiffs claimed that an Executive Order issued pursuant to
8 U.S.C. § 1182(f)—the same statute EO-3 invokes—violated the INA. Id. at 165-66, 172 &
n.27.

The Supreme Court reviewed the claim on the merits, id. at 170-89, despite the

government’s arguments that the Court lacked authority to review the statutory claim. See U.S.
12

Second Hausman Decl. Ex. B, J.R. 506 (U.S. Dep’t of State, “Presidential Proclamation on
Visas”).
22

Br. 13-18 & n.9, 55-57, 1992 WL 541276, Reply Br. 1-4, 1993 WL 290141, Sale v. Haitian Ctrs.
Council, Inc. (No. 92-344). Indeed, courts regularly review whether executive action—including
presidential action—complies with the statutes Congress has enacted, even when matters of
foreign policy are at issue. See Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012)
(calling the interpretation of statutes “a familiar judicial exercise”).
Those decisions are consistent with “the strong presumption in favor of judicial review of
administrative action.” INS v. St. Cyr, 533 U.S. 289, 298 n.9 (2001) (collecting cases). This
review is available both under the Administrative Procedure Act and in equity more broadly. See
5 U.S.C. §§ 702, 706 (providing for relief against federal agencies); Armstrong v. Exceptional
Child Ctr., Inc., 135 S. Ct. 1378, 1384-85 (2015) (describing “a long history of judicial review of
illegal executive action” in equity); Dames & Moore v. Regan, 453 U.S. 654, 669-88 (1981)
(reviewing statutory claim against the President in equity); Sale, 509 U.S. at 170-89 (same). The
presumption of judicial review can only be overcome when Congress expresses a “clear and
convincing” intent to “restrict access to judicial review” of the challenged action. Bowen v.
Michigan Academy of Family Physicians, 476 U.S. 667, 671 (1986).
Courts have recognized a very narrow exception for non-constitutional claims
challenging a “consular official’s decision to issue or withhold a visa.” Bustamante v. Mukasey,
531 F.3d 1059, 1061 (9th Cir. 2008) (internal quotation marks omitted). 13 But that doctrine only
applies to “a particular determination in a particular case,” not a statutory claim against a
“general” policy. Int’l Union of Bricklayers & Allied Craftsmen v. Meese, 761 F.2d 798, 801
(D.C. Cir. 1985); see Patel v. Reno, 134 F.3d 929, 931-32 (9th Cir. 1997) (same); Mulligan v.

13

The Supreme Court has never explicitly endorsed that doctrine. It has reviewed constitutional
claims against individual visa denials on the merits. See Kliendienst v. Mandel, 408 U.S. 753
(1972); Kerry v. Din, 135 S. Ct. 2128 (2015).
23

Schultz, 848 F.2d 655, 657 (5th Cir. 1988) (same). No court has ever held that executive orders,
proclamations, or other general policies are immune from review. See IRAP, 857 F.3d at 587
(finding “authority to review high-level government policy”); cf. United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 543, 544-47 (1950) (noting in dicta that an individual decision “to
exclude a given alien” may not be reviewable, but reviewing two statutory claims against an
executive order on the merits). And even in challenges to consular visa denials, the D.C. Circuit
has explained that to avoid reaching constitutional questions unnecessarily, a court must consider
statutory claims. Abourezk v. Reagan, 785 F.2d 1043, 1052 (D.C. Cir. 1986) (R.B. Ginsburg, J.);
accord id. at 1062 n.1 (Bork, J., dissenting).
III.

EO-3 Violates the Establishment Clause and Equal Protection.
EO-3 is the next step in the progression that started with the President’s calls for a

Muslim Ban and led to the six-country ban enjoined by this Court and the Fourth Circuit.
Nothing about EO-3 breaks the clear and direct chain: This ban, like its predecessors, remains an
attempt to make good on the President’s promise to ban Muslims. The Fourth Circuit’s en banc
decision affirming this Court’s injunction therefore dictates the result here.
The Fourth Circuit determined that cases applying the “facially legitimate and bona fide
test to challenges to individual visa denials” provided the proper framework, while also giving
effect to cases holding that the government’s immigration power is “subject to important
constitutional limitations.” IRAP v. Trump, 857 F.3d at 589 (citing, inter alia, Din, 135 S. Ct. at
2139 (Kennedy, J., concurring in the judgment); Mandel, 408 U.S. at 770; Zadvydas v. Davis,
533 U.S. 678, 695 (2001); Chadha, 462 U.S. at 941. 14 Where plaintiffs have “seriously called
into question whether the stated reason for the challenged action was provided in good faith,” the

14

As plaintiffs previously argued, Mandel does not apply.
24

Fourth Circuit held, courts must “look behind the stated reason for the challenged action.” IRAP,
857 F.3d at 591.
EO-2 presented such circumstances.

The Fourth Circuit noted plaintiffs’ “ample

evidence” that the proffered reason for EO-2 was “not the true reason,” including:
. . . then-candidate Trump’s numerous campaign statements expressing animus
towards the Islamic faith; his proposal to ban Muslims from entering the United
States; his subsequent explanation that he would effectuate this ban by targeting
“territories” instead of Muslims directly; the issuance of EO-1, which targeted
certain majority-Muslim nations and included a preference for religious
minorities; an advisor’s statement that the President had asked him to find a way
to ban Muslims in a legal way; and the issuance of EO-2, which resembles EO-1
and which President Trump and his advisors described as having the same policy
goals as EO-1. Plaintiffs also point to the comparably weak evidence that EO-2 is
meant to address national security interests, including the exclusion of national
security agencies from the decisionmaking process, the post hoc nature of the
national security rationale, and evidence from DHS that EO-2 would not operate
to diminish the threat of potential terrorist activity.
Id. at 591-92 (citations omitted). Concluding that plaintiffs had “more than plausibly alleged that
EO-2’s stated national security interest was provided in bad faith, as a pretext for its religious
purpose,” the Fourth Circuit held that it was no longer bound to “defer to that reason and instead
[could] ‘look behind’ EO-2.”

Id. at 592.

Accordingly, the Court applied the “normal

constitutional tools”—the Establishment Clause—to EO-2. Id. at 592. The same evidence of
bad faith exists with respect to EO-3, and so this Court should do the same here.
“The clearest command of the Establishment Clause is that one religious denomination
cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). The
Supreme Court has thus “often stated the principle that the First Amendment forbids an official
purpose to disapprove of a particular religion.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 532 (1993).

25

When the government acts with the ostensible purpose of denigrating or excluding a
particular religion or its adherents, it violates several different Establishment Clause tests that the
Supreme Court has articulated. See, e.g., Larson, 456 U.S. at 246 (striking down “law granting a
denominational preference”); County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492
U.S. 573, 593-94 (1989) (“The Establishment Clause, at the very least, prohibits government
from appearing to take a position on questions of religious belief or from making adherence to a
religion relevant in any way to a person’s standing in the political community.”) (quotation
marks omitted); McCreary County v. ACLU of Ky., 545 U.S. 844, 864 (2005) (“[G]overnment
action must have ‘a secular . . . purpose,’” that is “genuine, not a sham, and not merely secondary
to a religious objective.”).
“The evidence in the record,” the Fourth Circuit observed, “create[d] a compelling case
that EO-2’s primary purpose is religious,” in violation of the Establishment Clause. Id. at 594.
The Court explained, citing the many statements made by the President and his advisors, that:
These statements, taken together, provide direct, specific evidence of what
motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims
from the United States. The statements also reveal President Trump’s intended
means of effectuating the ban: by targeting majority-Muslim nations instead of
Muslims explicitly. And after courts enjoined EO-1, the statements show how
President Trump attempted to preserve its core mission: by issuing EO-2—a
“watered down” version with “the same basic policy outcomes.”
Id. at 595. Rejecting the government’s many arguments to ignore some or all of the
probative evidence, the Court observed that the deference owed to the President “must yield in
certain circumstances, lest we abdicate our own duties to uphold the Constitution.” Id. at 601.
And, examining all the evidence, EO-2 simply could not be “divorced from the cohesive
narrative linking it to the animus that inspired it.” Id.

26

The same is true of EO-3. Far from breaking the “cohesive narrative,” the continuity
from EO-2 to the current version is stark. EO-3 is on its face a successor to and continuation of
EO-2. The new order implements the indefinite ban that EO-2 expressly contemplated and that
the President has long promised. It does so in reliance on the same kind of blanket, countrywide
invocations of 8 U.S.C. § 1182(f) imposed by EO-2. EO-3 relies on the same rationales about
country conditions and information sharing, and, like EO-2, it does not identify any failures in
the vetting system that justify these drastic and unprecedented measures.

And, like its

predecessors, the new ban overwhelmingly targets Muslims. Indeed, five of the six almost
entirely Muslim countries subject to EO-2 remain banned by EO-3.
To be sure, the new ban is not the same as earlier ones in every respect. And the
government is likely to place particular weight on the inclusion of two non-Muslim-majority
countries to argue that finally—on his third attempt—the President has imposed a ban that does
not seek to bar Muslims because of their religion. But any such suggestion is wrong.
First, the inclusion of two such countries appears to be little more than the kind of
“litigating position” that reasonable observers easily see through.

IRAP, 857 F.3d at 596

(quoting McCreary, 545 U.S. at 848). McCreary is instructive. After a court held that a Ten
Commandments display and a modified successor display violated the Establishment Clause, the
defendant counties installed yet another version, “the third within a year.” 545 U.S. at 854-55.
The third version included new, non-religious documents that, according to the counties,
rendered the purpose of the display religion-neutral. Id. at 871-72. Although the counties “cited
several new purposes for the third version,” the Court examined all the relevant circumstances
and concluded that a reasonable observer “would probably suspect that the Counties were simply
reaching for any way to keep a religious document on the walls of courthouses constitutionally

27

required to embody religious neutrality.” Id. at 871, 873. McCreary, like this case, involved
“recent evidence of purpose” bearing on a challenge to “the latest step in developing litigation
brought as a challenge to institutional practices that unquestionably violated the Establishment
Clause.” Id. at 873 n.22 (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000)).
Here, as in McCreary, the Court cannot “turn a blind eye to the context in which this policy
arose.” Santa Fe, 530 U.S. at 315.
Second, the minimal ways in which EO-3 affects the two non-Muslim-majority countries
undermines the suggestion that the inclusion of those countries makes any difference for
Establishment Clause purposes. Visa applications from North Korea will be blocked. But even
before EO-3, such applications were close to nonexistent. See supra n.3.

That country’s

inclusion is thus little more than symbolic, in contrast to the very real effect the ban will have on
large numbers of Muslims. Id. And for Venezuela, EO-3 applies differently, such that its impact
will be a tiny fraction of that felt by the Muslim-majority countries: The entire populations of
the Muslim-majority countries are subject to the bans, which include all immigrants and most
non-immigrants—consistent with the President’s promise of a Muslim ban, and with the
countrywide bans imposed by EO-1 and EO-2. But for Venezuela, only certain government
officials and their family members are banned, and only with regard to tourist-type visas. A
reasonable observer, examining such starkly different treatment, would conclude that the
government was “simply reaching for any way” to obfuscate the principal purpose of the ban.
McCreary, 545 U.S. at 873.
Third, the fact that the ban applies to some non-Muslims is no answer to the
Establishment Clause violation. Just as the Fourth Circuit observed with regard to EO-2, which
banned non-Muslims from the six listed countries, the new ban’s “practical operation is not

28

severable from the myriad statements explaining its operation as intended to bar Muslims from
the United States.” IRAP, 857 F.3d at 597. That the order is “overinclusive” by barring a
handful of non-Muslims is simply “not responsive to the purpose inquiry.” Id. To discern
purpose, the court must look to “the full context” of EO-3. Id. And, just as in IRAP, the full
context here is clear: EO-3, like its predecessors that expressly directed its issuance, has a
primarily anti-Muslim purpose and message.
Fourth, as was the case for EO-2, any claim that the primary purpose of EO-3 is securityrelated is “belied by the evidence in the record.” IRAP, 857 F.3d at 596. The government has
still provided no evidence of vetting failures that would justify such drastic bans, no evidence to
refute the testimony of recent national security officials or the DHS reports that were released
after EO-2, and no indication that a national from the banned countries has carried out a
successful terror attack on U.S. soil in the last 40 years. And it is little surprise, and hardly
indicates a real security need, that DHS recommended a list of countries to include in an
indefinite ban—that is precisely what the President previously ordered it to do. See EO-2 § 2(e)
(ordering DHS to submit “a list of countries recommended for inclusion in a Presidential
proclamation” banning entry). Moreover, the President has continued to express his overriding
desire to impose a multi-country ban, including before the review that supposedly prompted EO3 was complete, or even underway. Compare J.R. 664 (calling for a “much tougher” ban on
June 5), with EO-3 § 1(h) (President received DHS recommendation September 15); id. § 1(c)
(President received initial DHS report July 9).

And in any event, those reports were

commissioned by an order whose purpose, this Court and the Fourth Circuit have held, at least as
to the 90-day ban, was to target Muslims..

29

The Fourth Circuit was unmoved by the government’s prior assertion that EO-2 was
adopted based on the recommendations of agency officials.

IRAP, 857 F.3d at 577, 598.

Moreover, here it is so far unclear what those recommendations were, or what they were based
on.

For example, the decision to ban nationals of Chad, “one of the most effective

counterterrorism partners in the region,” left officials in the State Department and the military
“befuddled and frustrated.” Joint Declaration of Former National Security, Foreign Policy and
Intelligence Officials ¶ 11, J.R. 755-56 (citation and internal quotation marks omitted). And the
government has not explained, for instance, whether DHS recommended that the much narrower
ban be imposed on Venezuela and the far more sweeping bans be imposed on the Muslimmajority countries; and it has not disclosed whether there are additional countries that fail to
meet the baseline, but are nonetheless excepted from the ban. Indeed, the government has
declined to release even redacted versions of the reports that supposedly underlie EO-3’s drastic
alteration of our immigration system, or any other evidence for that matter.
But ultimately the answers to those questions—while they would be enlightening—are
unnecessary. In assessing an Establishment Clause claim, the Court does not look only to “the
latest news about the last in a series of governmental actions, however close they may all be in
time and subject.” McCreary, 545 U.S. at 866. That is because “the world is not made brand
new every morning,” and “reasonable observers have reasonable memories.” Id. Here, the
evidence of purpose is essentially the same as this Court and the Fourth Circuit recognized with
regard to EO-2. EO-3 likewise violates the Establishment Clause.
For similar reasons, EO-3 also violates equal protection. “[T]he Religion Clauses . . . and
the Equal Protection Clause as applied to religion . . . all speak with one voice on this point:
Absent the most unusual circumstances, one’s religion ought not affect one’s legal rights or

30

duties or benefits.” Hassan v. City of New York, 804 F.3d 277, 290 n.2 (3d Cir. 2015) (quoting
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 715 (1994) (O’Connor, J.,
concurring in the judgment) (alterations in original, internal quotation marks omitted)); see
also City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam); Washington v.
Trump, 847 F.3d 1151, 1167-68 (9th Cir. 2017); United States v. Brown, 352 F.3d 654, 668 &
n.18 (2d Cir. 2003). “Determining whether invidious discriminatory purpose was a motivating
factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may
be available.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977);
see also Hunter v. Underwood, 471 U.S. 222, 227-28 (1985). Here, the same direct and
circumstantial evidence that reveals an Establishment Clause violation also demonstrates a
violation of equal protection.
IV.

Plaintiffs Will Suffer Irreparable Injury in the Absence of an Injunction.

The same injuries that establish plaintiffs’ standing also constitute irreparable harm. See
IRAP, 857 F.3d at 601-02 (condemnation); Hawaii, 859 F.3d at 782-83 (“prolonged separation
from family members”).
EO-3’s condemnation of plaintiffs’ religion will not remain on hold while their relatives’
applications are processed; rather, every day the ban is in effect is an injury. The “loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury.” Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 191 (4th Cir. 2013) (citations and
quotation marks omitted).
Likewise, the time that the individual plaintiffs and the organizational plaintiffs’ clients
and members will spend separated from their families could not possibly be addressed by
damages. Ms. Khazaeli’s husband has terminal cancer, and her sister-in-law will likely never see

31

him again if EO-3 takes effect. Khazaeli Decl. ¶ 12, J.R. 465. AAANY has clients whose
parents are stranded in war zones in Yemen and Syria, Issa-Ibrahim Decl. ¶ 21-22, J.R. 442-43,
and a client whose husband has not yet seen his newborn son, id. ¶ 19, J.R. 441. John Doe #4
finds life without his wife “excruciatingly difficult,” and is unable to start a family while he
waits. Doe #4 Decl. ¶¶ 6-7, J.R. 461. Mr. Shirani is forced to choose between access to medical
care (for complications from a tumor in his inner ear) and being with his wife in Iran. Shirani
Decl. ¶ 5, J.R. 476.
In addition, the organizational plaintiffs will suffer various kinds of irreparable harm.
For example, IRAP has diverted resources to produce materials on EO-3, Third Heller Decl. ¶¶
6-8, J.R. 450, and to counsel clients and family members in the U.S. and abroad about its effects,
id. ¶¶ 10-14, J.R. 450-51. YAMA’s members have felt the impact of the bans partly through
friends and acquaintances abroad, as well as through family members. Mubarez Decl. ¶¶ 13-14,
J.R. 484. And MESA will be harmed not only by EO-3’s impact on its members, but also by
EO-3’s impact on nonmembers unable to attend its meeting. Second Baron Decl. ¶ 17, J.R. 43233.
V.

The Balance of the Equities and the Public Interest Favor Issuance of an
Injunction.

Plaintiffs’ injuries far outweigh any harm to the government an injunction would cause.
See IRAP, 857 F.3d at 602-04; Hawaii, 859 F.3d at 783-85. The government is “in no way
harmed” by an injunction that “prevents [it] from enforcing restrictions likely to be found
unconstitutional.” IRAP, 857 F.3d at 603 (quoting Centro Tepeyac, 722 F.3d at 191). And the
Fourth Circuit “reject[ed] the notion that the President, because he or she represents the entire
nation, suffers irreparable harm whenever an executive action is enjoined.” Id.
32

Nor is the government harmed by adhering to visa procedures that have been in place for
years, and that Congress has determined serve the public interest. It has come forward with no
evidence to suggest that vetting failures are likely absent its unprecedented ban.

The

government’s invocation of national security is not a “silver bullet that defeats all other asserted
injuries.” Id. at 603; see also Joint Declaration of Former National Security, Foreign Policy and
Intelligence Officials ¶¶ 13-15, J.R. 756-57 (explaining why “Travel Ban 3.0 would undermine
the national security of the United States). Nor are its foreign affairs interests. And the public
interest also strongly favors a preliminary injunction: when courts “protect the constitutional
rights of the few, it inures to the benefit of all.” Id. at 604.
CONCLUSION
The Court should grant the motion for a preliminary injunction.

33

Respectfully submitted,

Dated: October 6, 2017

/s/ Omar C. Jadwat
Omar C. Jadwat†
Lee Gelernt†
Hina Shamsi†
Hugh Handeyside†
Sarah L. Mehta†
David Hausman††
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]
Cecillia D. Wang†
Cody H. Wofsy†
Spencer E. Amdur†
American Civil Liberties Union
Foundation
39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Karen C. Tumlin†
Nicholas Espíritu†
Melissa S. Keaney†
Esther Sung†
National Immigration Law Center
3435 Wilshire Boulevard, Suite 1600
Los Angeles, CA 90010
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Justin B. Cox (Bar No. 17550)
National Immigration Law Center
PO Box 170208
Atlanta, GA 30317
Tel: [phone]
Fax: [phone]
[e-mail]

David Cole†
Daniel Mach†
Heather L. Weaver†
American Civil Liberties Union
Foundation
915 15th Street NW
Washington, DC 20005
Tel: [phone]
34

Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
David Rocah (Bar No. 27315)
Deborah A. Jeon (Bar No. 06905)
Sonia Kumar (Bar No. 07196)
Nicholas Taichi Steiner (Bar
No.19670)
American Civil Liberties Union
Foundation of Maryland
3600 Clipper Mill Road, Suite 350
Baltimore, MD 21211
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Counsel for Plaintiffs

†Admitted Pro Hac Vice
†† Application for admission Pro Hac Vice pending

35

CERTIFICATE OF SERVICE
I hereby certify that on October 6, 2017, I electronically filed this Motion for Plaintiffs
with the Court Clerk using the ECF system, which will send notification to Defendants’
registered counsel.
Dated: October 6, 2017

/s/ Omar Jadwat
Omar Jadwat