International Refugee Assistance Project et al v. Trump et al

Filing 83

Request for Conference (Espiritu, Nicholas)

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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. 2 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: (212) 549-2600 Fax: (212) 549-2654 /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: (213) 639-3900 Fax: (213) 639-3911 3 Justin B. Cox (Bar No. 17550) National Immigration Law Center 1989 College Ave. NE Atlanta, GA 30317 Tel: (678) 404-9119 Fax: (213) 639-3911 Cecillia D. Wang† Cody H. Wofsy† American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 Tel: (415) 343-0770 Fax: (415) 395-0950 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: (410) 889-8555 Fax: (410) 366-7838 David Cole† Daniel Mach† Heather L. Weaver† American Civil Liberties Union Foundation 915 15th Street NW Washington, DC 20005 Tel: (202) 675-2330 Fax: (202) 457-0805 † Appearing pro hac vice 4

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