International Refugee Assistance Project et al v. Trump et al
NOTICE by Michael Dempsey, Department of Homeland Security, Department of State, John F. Kelly, Office of the Director of National Intelligence, Rex W. Tillerson, Donald J. Trump of Filing of Executive Order (Attachments: # 1 Exhibit A)(Bennett, Michelle)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DONALD TRUMP, in his official capacity )
as President of the United States, et al.,
ASSISTANCE PROJECT, et al.,
NOTICE OF FILING OF EXECUTIVE ORDER
Defendants hereby provide Notice that, on March 6, 2017, the President signed an
Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United
States” (“New Executive Order,” submitted herewith as Exhibit A). The New Executive
Order, by its own terms, will not take effect until March 16, 2017. See New Executive
Order § 14. It revokes Executive Order No. 13,769, see id. § 13, which has been the subject
of litigation in this case. As explained below, the New Executive Order sets forth policies
substantially different from the policies in Executive Order No. 13,769.
The Government is preparing to enforce the provisions of this New Executive Order
beginning on its effective date. Following the filing of this Notice, counsel for the
Government will contact Plaintiffs’ counsel to meet and confer regarding appropriate
further proceedings before this Court. For the convenience of the Court, this Notice
discusses the background of this case and summarizes key provisions of the New Executive
BACKGROUND OF THIS CASE
On January 27, 2017, the President issued Executive Order No. 13,769, titled
“Protecting the Nation From Foreign Terrorist Entry Into the United States.” See 82 Fed.
Reg. 8977 (Jan. 27, 2017). Plaintiffs filed this lawsuit challenging that Executive Order on
February 7, 2017. See Compl. ¶ 1 (ECF No. 1). At the time this suit was filed, another
federal district court had already enjoined, on a nationwide basis, portions of that Executive
Order. See id. ¶ 100; see also Washington v. Trump, No. 2:17-cv-00141 (W.D. Wash. Feb.
3, 2017), ECF No. 52 (enjoining enforcement of sections 3(c), 5(a)-(c), and 5(e) of
Executive Order No. 13,769). The Government appealed that injunction to the United
States Court of Appeals for the Ninth Circuit, and also sought a stay of the injunction. See
Washington v. Trump, Case No. 17-35105 (9th Cir. filed Feb. 4, 2017), ECF No. 14. A
panel of the Ninth Circuit denied the Government’s motion to stay, and issued a written
opinion declining to narrow the scope of the nationwide injunction. See Washington v.
Trump, 847 F.3d 1151 (9th Cir. 2017). In doing so, the Ninth Circuit explained that it is
“not our role to try, in effect, to rewrite the Executive Order” because “[t]he political
branches are far better equipped to make appropriate distinctions.” Id. at 1167. The
President thereafter decided to rescind Executive Order No. 13,769 and replace it with a
new, substantially revised Executive Order.
In this case, Plaintiffs have filed a motion for expedited discovery (ECF No. 63)
and a motion for a preliminary injunction of section 5(d) of Executive Order No. 13,769
(ECF No. 64). Both those motions are presently in the midst of briefing, per the Court’s
scheduling order (ECF No. 59).
SUMMARY OF KEY PROVISIONS OF THE NEW EXECUTIVE ORDER
Relevant to issues that have been the subject of litigation, the New Executive Order
(i) suspends entry for 90 days of certain foreign nationals from six of the seven countries
designated in Executive Order No. 13,769 who do not hold valid visas; (ii) creates a caseby-case waiver process that is integrated into the visa application and admission processes;
(iii) creates a 120-day suspension of certain aspects of the U.S. Refugee Admissions
Program, which does not apply to refugee applicants who already have been formally
scheduled for transit, and also allows for case-by-case waivers; (iv) contemplates the entry
of up to 50,000 refugees in fiscal year 2017; and (v) contains additional explanations in
support of the promulgated policy.
The New Executive Order accounts for concerns identified by the Ninth Circuit
regarding the potential due process claims of individuals affected by the prior Executive
Order. See Washington, 847 F.3d at 1164-67 (identifying potential due process claims
arising from Executive Order 13,769). The New Executive Order’s suspension of entry
provision does not apply to lawful permanent residents. Nor does that provision apply to
any person who holds a valid visa on the date the New Executive Order takes effect or who
held a valid visa as of 5:00 p.m. Eastern Standard Time on the date of issuance of Executive
Order 13,769. For example, the provision does not apply to nonimmigrant visaholders who
have been in the United States but temporarily departed or wish to temporarily depart, or
to visaholders who have never before set foot in the United States. Further, the New
Executive Order sets out waiver procedures for those without visas who may seek to come
to the United States due to a relationship with a U.S. resident or an institution.
1. The New Executive Order’s 90-Day Suspension of Entry Applies to
Aliens with No Material Connection to the United States.
Like Executive Order No. 13,769, the New Executive Order temporarily suspends
the entry of foreign nationals from certain countries in order to allow the Government to
review its screening and vetting procedures. See New Executive Order § 2(c). Unlike the
prior Executive Order, however, the New Executive Order no longer suspends the entry of
foreign nationals from Iraq. Moreover, for those countries to which the suspension does
apply, the New Executive Order is substantially narrower in scope and contains robust
a. The Suspension of Entry No Longer Applies to Nationals of Iraq.
Executive Order No. 13,769 suspended, for a period of 90 days from the effective
date of that Order, the entry of certain nationals of the seven countries referred to in Section
217(a)(12) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq.: Iran,
Iraq, Libya, Somalia, Sudan, Syria, and Yemen. 8 U.S.C. § 1187(a)(12).
Iraq, however, presents a “special case.” New Executive Order § 1(g). Unlike the
other six countries, there exists a close cooperative relationship between the United States
and the Iraqi government, a strong United States diplomatic presence in Iraq, a significant
presence of United States forces in Iraq, and a commitment by Iraq to combat the Islamic
State of Iraq and Syria (“ISIS”). See id. And notably, since Executive Order No. 13,769
was issued, “the Iraqi government has expressly undertaken steps to enhance travel
documentation, information sharing, and the return of Iraqi nationals subject to final orders
of removal.” Id. Accordingly, the suspension of entry provisions no longer apply to Iraqi
foreign nationals. See id. §§ 1(f), (g).*
b. The Suspension of Entry Applies to Certain Nationals of Iran,
Libya, Somalia, Sudan, Syria, and Yemen.
As to the six countries other than Iraq identified under Section 217(a)(12) of the
INA—Iran, Libya, Somalia, Sudan, Syria, and Yemen—the suspension of entry provisions
differ substantially from those contained in Executive Order No. 13,769.
The New Executive Order’s suspension of entry applies only to nationals of these
six countries who are outside the United States on the New Executive Order’s effective
date of March 16, 2017, do not have a valid visa on that date, and did not have a valid visa
as of 5:00 p.m. Eastern Standard Time on January 27, 2017. See New Executive Order
§ 3(a). The suspension of entry excludes: (1) lawful permanent residents; (2) any foreign
national admitted to or paroled into the United States on or after the New Executive Order’s
effective date; (3) any individual who has a document other than a visa, valid on the
effective date of the New Executive Order or issued anytime thereafter, that permits the
individual to travel to the United States and seek entry or admission, such as an advance
parole document; (4) any dual national traveling on a passport not issued by one of the six
designated countries; (5) any foreign national traveling on diplomatic, diplomatic-type, or
other specified visas; and (6) any foreign national who has been granted asylum, any
refugee already admitted to the United States, or any individual granted withholding of
Although the temporary suspension no longer applies to Iraqi foreign nationals, the New
Executive Order states that Iraq is still host to an ongoing conflict that has impacted the
Iraqi government’s capacity to secure its borders and to identify fraudulent travel
documents. See New Executive Order § 1(g). Accordingly, the New Executive Order
notes that “[d]ecisions about issuance of visas or granting admission to Iraqi nationals
should be subjected to additional scrutiny to determine if applicants have connections with
ISIS or other terrorist organizations, or otherwise pose a risk to either national security or
public safety.” Id. Section 4 of the New Executive Order provides further guidance in that
removal, advance parole, or protection under the Convention Against Torture. See id.
The New Executive Order does not affect the ability of individuals—whether
lawful permanent residents or nonimmigrant visaholders—who are lawfully in the United
States on the effective date to leave the country to travel and later return. Further, the New
Executive Order will not result in the revocation or cancellation of valid visas or create an
emergent situation whereby visaholders abroad are prevented from entering the United
States based on the New Executive Order.
c. The Suspension of Entry Is Subject to a Robust Waiver Provision.
The New Executive Order contains a robust and self-executing waiver provision
that is integrated into the visa approval and admission processes, and provides an
opportunity for individualized exceptions from the application of Section 2(c) of the Order
in all cases. See New Executive Order § 3(c). Thus, foreign nationals of the six countries
who do not possess a visa may still seek a waiver allowing the issuance of a visa or the
permission of entry into the United States.
The New Executive Order includes a nonexhaustive list of circumstances when
waivers “could be appropriate,” which will guide agencies in addressing circumstances
where the national interest would be served by a waiver. Waivers may be appropriate
the foreign national has previously been admitted to the United
States for a continuous period of work, study, or other long-term
activity, is outside the United States on the effective date of the
Order, seeks to reenter the United States to resume that activity,
and denial of reentry during the suspension period would impair
the foreign national has previously established significant contacts
with the United States but is outside the United States on the
effective date of the Order for work, study, or other lawful
the foreign national seeks to enter the United States for significant
business or professional obligations and the denial of entry during
the suspension period would impair those obligations;
the foreign national seeks to enter the United States to visit a close
family member (e.g., a spouse, child, or parent) who is a United
States citizen, lawful permanent resident, or alien lawfully
admitted on a valid nonimmigrant visa, and the denial of entry
during the suspension period would cause undue hardship;
the foreign national is an infant, a young child or adoptee, an
individual needing urgent medical care, or someone whose entry is
otherwise justified by the special circumstances of the case;
the foreign national has been employed by, or on behalf of, the
United States Government (or is an eligible dependent of such an
employee) and the employee can document that he or she has
provided faithful and valuable service to the United States
the foreign national is traveling for purposes related to an
international organization designated under the International
Organizations Immunities Act (IOIA), 22 U.S.C. § 288 et seq.,
traveling for purposes of conducting meetings or business with the
United States Government, or traveling to conduct business on
behalf of an international organization not designated under IOIA;
(viii) the foreign national is a landed Canadian immigrant who applies
for admission at a land border port of entry or a preclearance
location located in Canada; or
the foreign national is traveling as a United States Governmentsponsored exchange visitor.
See New Executive Order § 3(c). These circumstances for waivers ensure an appropriate
process is provided—integrated into the normal visa and admission processes—even in
circumstances where the law plainly creates no right of entry.
2. The New Executive Order Suspends Certain Refugee Operations for 120
Days and Allows the Entry of up to 50,000 Refugees in Fiscal Year 2017.
Section 6 of the New Executive Order suspends travel into the United States under
the U.S. Refugee Admission Program and decisions on applications for refugee status for
a period of 120 days. During the suspension period, the Government will review the
refugee application and adjudication processes to determine what additional procedures
should be used to ensure that individuals seeking admission as refugees do not pose a threat
to the security and welfare of the United States, and to implement such additional
procedures. See New Executive Order § 6(a). The New Executive Order’s suspension
does not apply to refugee applicants who were formally scheduled for transit by the
Department of State before the March 16, 2017 effective date of the New Executive Order.
Like the 90-day suspension, the 120-day suspension includes a waiver provision
that allows the Secretaries of State and Homeland Security to admit refugees on a case-bycase basis. See id. § 6(c). The New Executive Order identifies specific circumstances in
which waivers may be warranted, including where the admission of the individual would
allow the United States to conform its conduct to a pre-existing international agreement or
denying admission would cause undue hardship. See id.
Section 6(b) of the New Executive Order allows the entry of up to 50,000 refugees
in fiscal year 2017, until such time as the President determines that additional entries would
be in the national interest. See id. § 6(c).
3. The New Executive Order Omits Two Provisions Included in Executive
Order No. 13,769 Regarding Refugee Admissions.
a. The New Executive Order Does Not Prioritize Refugees Who
Practice Minority Religions.
Executive Order No. 13,769 contained a provision that, upon the resumption of the
U.S. Refugee Admission Program, would have prioritized refugee claims made by
individuals on the basis of religious-based persecution if the individual practiced a minority
religion in the individual’s country of nationality. See Exec. Order No. 13,769 § 5(b). The
prior Executive Order also provided for the possibility of a waiver of the temporary
suspension provisions on a case-by-case basis including, but not limited to, circumstances
where an individual refugee is a religious minority. See id. § 5(e). The New Executive
Order advises that these provisions were not motivated by animus toward any religion; to
the contrary, they would have applied to persecuted religious minority groups in any nation,
including nations in which practitioners of Islam are a minority, and also to minority sects
within a religion facing religious persecution. See New Executive Order § 1(b)(iv).
Nonetheless, the New Executive Order no longer contains any provisions concerning
refugees who practice minority religions.
b. The New Executive Order Contains No Provision Specific to
Refugees from Syria.
Executive Order No. 13,769 contained a provision that suspended the entry of
Syrian refugees until the President determined that sufficient changes were made to the
U.S. Refugee Admission Program that would ensure that the admission of those refugees
was consistent with the national interest. See Exec. Order No. 13,769 § 5(c). The New
Executive Order does not contain any provision specifically affecting Syrian refugees.
4. The New Executive Order Explains in Detail the Basis for the Policy It
The New Executive Order provides a detailed explanation on the importance of
improving vetting protocols and procedures associated with the visa-issuance process and
the U.S. Refugee Admission Program, including the necessity of temporarily suspending
narrow aspects of both of those programs while a review of those vetting protocols and
procedures takes place.
As explained in the New Executive Order, the six countries that are subject to its
suspension of entry (and were also subject to Executive Order No. 13,769) were selected
because they “had already been identified as presenting heightened concerns about
terrorism and travel to the United States” and had been referred to in, or designated under,
Section 217(a)(12) of the INA, 8 U.S.C. § 1187(a)(12). See New Executive Order § 1(b)(i).
Specifically, Syria is identified in the statutory text of the INA; Iran, Syria, and Sudan have
been identified as state sponsors of terrorism for purposes of applying the INA; and Libya,
Somalia, and Yemen have been designated as countries of concern by the Secretary of
Homeland Security, in consultation with the Secretary of State and the Director of National
Intelligence, for purposes of applying the INA, based on consideration of three statutory
factors related to terrorism and national security. See id. (citing 8 U.S.C. § 1187(a)(12)).
The New Executive Order also makes clear that the President exercised his statutory and
constitutional authority after having “determined that, for a brief period of 90 days, while
existing screening and vetting procedures were under review, the entry into the United
States of certain aliens from [these countries] -- each afflicted by terrorism in a manner that
compromised the ability of the United States to rely on normal decision-making procedures
about travel to the United States -- would be detrimental to the interests of the United
States.” Id. § 1(b)(ii).
More specifically, the New Executive Order explains that, currently, the entry of
nationals from these countries “warrant[s] additional scrutiny in connection with our
immigration policies because the conditions in these countries present heightened threats.”
Id. § 1(d). “Each of these countries is a state sponsor of terrorism, has been significantly
compromised by terrorist organizations, or contains active conflict zones.” Id. “Any of
these circumstances diminishes the foreign government’s willingness or ability to share or
validate important information about individuals seeking to travel to the United States.”
Id. Moreover, the “significant presence” of terrorist organizations in these countries
“increases the chance that conditions will be exploited to enable terrorist operatives or
sympathizers to travel to the United States.” Id. “[O]nce foreign nationals from these
countries are admitted to the United States, it is often difficult to remove them, because
many of these countries typically delay issuing, or refuse to issue, travel documents.” Id.
The New Executive Order also addresses some of the specific risks presented by
each of the six countries, see New Executive Order § 1(e):
Iran has been designated as a state sponsor of terrorism since 1984 and does
not cooperate with the United States in counterterrorism efforts. Id. § 1(e)(i).
Iran continues to support terrorist groups, and has been linked to support for
Libya is an active combat zone wherein security and law enforcement
functions are provided in many parts of the country by armed militias rather
than state institutions; violent extremist groups, including ISIS, have exploited
these conditions to expand their presence in the country. Id. § 1(e)(ii).
Moreover, the Libyan government is unable to secure thousands of miles of its
land and maritime borders, enabling the illicit flow of weapons and foreign
terrorist fighters, and the United States Embassy in Libya suspended its
operations in 2014. Id.
Portions of Somalia have been a “terrorist safe haven,” and the country lacks
the capacity to investigate suspected terrorists. Id. § 1(e)(iii). The country
“has porous borders, and most countries do not recognize Somali identity
Sudan has been designated as a state sponsor of terrorism, has provided safe
havens for al-Qa’ida and other terrorist groups, and continues to have terrorist
groups (including elements of al-Qa’ida and ISIS) active in the country. Id. §
The Syrian government is engaged in an ongoing conflict with ISIS (which
uses Syria as its base) for control of portions of the country and supports other
terrorist groups, including permitting travel of extremists through its territory
to enter Iraq. Id. § 1(e)(v). The United States Embassy in Damascus
suspended its operations in 2012, and Syria does not cooperate with the
United States’ counterterrorism efforts. Id.
In Yemen, both ISIS and al-Qa’ida in the Arabian Peninsula are active, and
have carried out hundreds of attacks. Id. § 1(e)(vi). Yemen has porous
borders susceptible to weapons smuggling. Id. The Department of State
suspended embassy operations and embassy staff were relocated out of the
country in 2015, and Yemen has been unable to cooperate fully with the
United States’ counterterrorism efforts. Id.
In view of these conditions, the President concluded that, “until the assessment of
current screening and vetting procedures required by” the New Executive Order is
completed, “the risk of erroneously permitting entry of a national of one of these countries
who intends to commit terrorist acts or otherwise harm the national security of the United
States is unacceptably high,” and a “temporary pause” on such entry is therefore necessary.
See id. § 1(f).
As for the suspension of certain refugee operations for 120 days and the entry of up
to 50,000 refugees in fiscal year 2017, the New Executive Order explains that “[t]errorist
groups have sought to infiltrate several nations through refugee programs,” and that “some
of those who have entered the United States through our immigration system”—including
“individuals who first entered the country as refugees”—“have proved to be threats to our
national security.” Id. § 1(b)(iii), (h). The New Executive Order cites specific examples
and notes a report that “more than 300 persons who entered the United States as refugees
are currently the subjects of counterterrorism investigations by the Federal Bureau of
Investigation.” Id. § 1(h). Accordingly, the New Executive Order explains that the 120day pause in certain refugee operations will permit the United States “to determine what
additional procedures should be used to ensure that individuals seeking admission as
refugees do not pose a threat to the security and welfare of the United States,” and to
implement such procedures. Id. § 6(a).
IMPLEMENTATION OF THE NEW EXECUTIVE ORDER
“[T]he entry into the United States of foreign nationals who may commit, aid, or
support acts of terrorism remains a matter of grave concern.” Id. § 1(i). To help address
this concern, the President replaced Executive Order No. 13,769 with the New Executive
Order “[i]n light of the Ninth Circuit’s observation that the political branches are better
suited to determine the appropriate scope of any suspensions than are the courts, and in
order to avoid spending additional time pursuing litigation[.]” Id. To achieve the objective
of reducing the risk of terrorism posed by foreign nationals entering the United States, the
Government intends to begin enforcing the New Executive Order on its effective date of
March 16, 2017. See New Executive Order § 14.
Counsel for the Government will contact Plaintiffs’ counsel to meet and confer
regarding whether Plaintiffs wish to challenge the New Executive Order and an appropriate
schedule for amendment of the complaint and/or any other appropriate proceedings.
Defendants note, however, that the New Executive Order does not present a need for
emergency litigation. The New Executive Order applies only to those who are overseas
and without a visa. That group of individuals is not suffering any immediate harm, because
those individuals do not have visas and do not have an entitlement to one. Indeed, even if
there were some legal right, there is no imminent harm from a temporary suspension where
visa applicants frequently must wait long periods of time before applying and/or being
issued a visa or travel document if found eligible. The New Executive Order, moreover,
provides robust waiver authority under which such individuals may seek relief if they wish
to travel to the United States during the suspension period. In sum, there is no basis for
emergency relief. Any relief sought by plaintiffs should be assessed in a traditional
manner, allowing this Court a more complete opportunity to assess the provisions of the
New Executive Order, should plaintiffs assert a challenge to them.
Dated: March 6, 2017
CHAD A. READLER
Acting Assistant Attorney General
ROD J. ROSENSTEIN
United States Attorney
JENNIFER D. RICKETTS
Director, Federal Programs Branch
JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Michelle R. Bennett
MICHELLE R. BENNETT (Bar No. 806456)
ARJUN GARG (Bar No. 806537)
BRAD P. ROSENBERG
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: (202) 305-8902
Fax: (202) 616-8470
Attorneys for Defendants
CERTIFICATE OF SERVICE
I hereby certify that on March 6, 2017, I electronically filed the foregoing Notice
of Filing of Executive Order using the Court’s CM/ECF system, causing a notice of filing
to be served upon all counsel of record.
/s/ Michelle R. Bennett
MICHELLE R. BENNETT
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