International Refugee Assistance Project et al v. Trump et al

Filing 83

Request for Conference (Espiritu, Nicholas)

March 9, 2017
The Honorable Theodore D. Chuang
United States District Court
District of Maryland
6500 Cherrywood Lane
Greenbelt, MD 20770
Re: International Refugee Assistance Project v. Trump, No. 8:17-cv-00361-TDC
Dear Judge Chuang:
We write pursuant to § II.A of the Case Management Order to request a Pre-Motion
Conference regarding Plaintiffs’ desire to file a motion for a temporary restraining order and
preliminary injunction of the revised Executive Order signed by President Trump on March 6,
2017 entitled “Protecting the Nation from Terrorist Entry into the United States” (hereinafter
“March 6 Order”), which, once effective, will supplant the identically titled Executive Order
13,769, signed on January 27, 2017 (hereinafter “January 27 Order”). Plaintiffs will soon be
filing an amended complaint pursuant to Federal Rule of Civil Procedure 15(a)(1) to add
allegations regarding the revised executive order. At set forth below, Plaintiffs respectfully
request that their motion for a temporary restraining order be considered prior to March 16,
2017, which is when the revised order, per its terms, goes into effect. See March 6 Order § 14;
see also id. at 13 (revoking the January 27 Order as of the same day and time).
On February 10, 2017, Plaintiffs sought leave to file a motion for a preliminary injunction
of the January 27 Order in its entirety. See Letter (doc. # 40). As Plaintiffs’ counsel explained in
the subsequent conference held on February 13, however, intervening events—in particular, the
decision of the Ninth Circuit Court of appeals maintaining the preliminary injunction of certain
sections of the January 27 Order, see Washington v. Trump, 847 F.3d 1151, 1157 (9th Cir. 2017),
as well as the federal government’s decision not to pursue immediate review thereof in the
Supreme Court, and the possibility that the order would be revised in the near future—led
Plaintiffs instead to seek a narrower preliminary injunction of § 5(d) of the January 27 Order,
which cut the number of refugees who may be admitted this fiscal year. See Pls.’ Mot. for
Prelim. Inj. (doc. # 64); see also March 6 Order § 6(d) (identical provision to § 5(d) of the
January 27 Order). At the same time, Plaintiffs filed a motion for expedited discovery on issues
pertinent to the broader preliminary injunction they believed would be necessary when a revised
executive order was issued. See Pls.’ Mot. for Expedited Discovery (doc. # 63). Both motions
remain pending, although not yet fully briefed.

Plaintiffs now seek leave to file a motion for a temporary restraining order and
preliminary injunction of the March 6 Order in its entirety. The federal government has
dismissed its appeal of the preliminary injunction entered in Washington v. Trump, and takes the
position that injunction does not apply to any provision of the new order. See Defs.’ Notice of
Filing of Exec. Order at 14, Washington v. Trump, No. 217cv141 (filed Mar. 6, 2017), ECF No.
108 (The “injunctive order does not limit the Government’s ability to immediately begin
enforcing the New Executive Order.”). Plaintiffs disagree with that assertion, but because the
Government has made clear that it “is preparing to enforce the provisions of this New Executive
Order beginning on its effective date,” id. at 1, the Plaintiffs are at imminent risk of irreparable
harm, and accordingly seek injunctive relief to prevent the March 6 Order from going into effect
as scheduled on March 16 at 12:01 AM ET.1
Plaintiffs are likely to succeed on their claim that the March 6 Order, like the January 27
Order, violates various constitutional and federal statutory provisions. In particular, there is
voluminous and compelling evidence that the Executive Order was intended and designed to
make it more difficult for Muslim immigrants to enter this country, and that the Order has that
effect. The Executive Order thus violates two vital constitutional protections—the guarantee that
the government shall make no law respecting an establishment of religion, and the guarantee of
equal protection of the laws. See Washington, 847 F.3d at 1164 (noting “the serious nature of the
allegations the States have raised with respect to their religious discrimination claims”); Aziz v.
Trump, 2017 WL 580855 at *7-9 (E.D. Va. Feb. 13, 2017) (concluding that Virginia had
established a likelihood of success on the merits of its Establishment Clause claim). The balance
of hardships and the public interest also clearly favor granting a preliminary injunction.
In light of the foregoing, and taking into account the motions already pending, Plaintiffs
respectfully propose the following schedule:

Friday, March 10:

Plaintiffs file their amended complaint and their motion for
a temporary restraining order and preliminary injunction of
the March 6 Order

Defendants file their response to Plaintiffs’ motion for a
temporary restraining order and preliminary injunction of
Monday, March 13 the March 6 Order
at 5:00 PM ET:
Plaintiffs file reply memoranda on their motion for a

1
Reports indicate that the Washington plaintiffs will today ask the District Court for the
Western District of Washington to confirm that its existing injunction prevents Defendants from
implementing the provisions of the March 6 Order (sections 2(c) and 6(a)) that correspond to
provisions of the January 27 Order (sections 3(c) and 5(a)) that are currently enjoined. If that
Court agrees, and the March 16 effective date is therefore suspended, Plaintiffs would not need
their TRO request to be briefed and decided before March 16.

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preliminary injunction of the reduction in the refugee
admissions, as well as their motion for expedited discovery
Tuesday, March
14 at 5:00 PM ET:

Plaintiffs file their reply memorandum on their motion for a
temporary restraining order and preliminary injunction of
the March 6 Order

Wednesday,
March 15:

The parties will make themselves available for argument on
all pending motions, as ordered by the Court, such that
Plaintiffs’ request for a temporary restraining order could be
considered prior to the March 6 Order’s effective date

Tuesday, March
28 at 9:30 AM ET:

The parties use the already-scheduled hearing for argument
on Plaintiffs’ request for a preliminary injunction, to include
whether to convert any existing temporary restraining order
into a preliminary injunction

Plaintiffs additionally note that, should the Court accept the schedule proposed above,
and should their Motion for Expedited Discovery be granted, Plaintiffs would seek to supplement
the record and briefing prior to the March 28 hearing in order to incorporate the information
obtained through that discovery.
Plaintiffs’ counsel has consulted with counsel for the Federal Government, who states
that they do not believe that the New Executive Order presents any need for emergency litigation
for the reasons explained in their Notice of Filing of Executive Order (ECF No. 79, at 14), and
they respectfully request the opportunity to be heard on the absence of any such need at the
telephonic Pre-Motion Conference, as contemplated by the Court’s Case Management Order
(ECF No. 4).
Respectfully submitted,
Omar C. Jadwat†
Lee Gelernt†
Hina Shamsi†
Hugh Handeyside†
Sarah L. Mehta†
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

/s/ Nicholas Espíritu
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]

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[e-mail]
[e-mail]

[e-mail]
[e-mail]
[e-mail]

Justin B. Cox (Bar No. 17550)
National Immigration Law Center
1989 College Ave. NE
Atlanta, GA 30317
Tel: [phone]
Fax: [phone]
[e-mail]

Cecillia D. Wang†
Cody H. Wofsy†
American Civil Liberties Union
Foundation
39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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]

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

† Appearing pro hac vice

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