International Refugee Assistance Project et al v. Trump et al

Filing 95

Amended MOTION for Temporary Restraining Order and/or Preliminary Injunction by HIAS, Inc., Allan Hakky, International Refugee Assistance Project, Jane Doe 1, John Doe 1-4, Samaneh Takaloo (Attachments: # 1 Exhibit IRAP Declaration, # 2 Exhibit HIAS Declaration, # 3 Exhibit MESA Declaration, # 4 Exhibit John Doe #1 Declaration, # 5 Exhibit John Doe #3 Declaration, # 6 Exhibit Meteab Declaration, # 7 Exhibit Jane Doe #2 Declaration, # 8 Exhibit Mohomed Declaration, # 9 Exhibit Harrison Declaration, # 10 Exhibit Hausman Declaration Pt.1, # 11 Exhibit Hausman Declaration Pt.2, # 12 Exhibit Hausman Declaration Pt.3)(Jadwat, Omar)

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 1 of 43

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
A
PRELIMINARY INJUNCTION AND/OR
TEMPORARY RESTRAINING ORDER
OF THE EXECUTIVE ORDER &
MEMORANDUM OF LAW IN SUPPORT
THEREOF

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 2 of 43

TABLE OF CONTENTS
INTRODUCTION……………………………………………………………………………….1
BACKGROUND…………………………………………………………………………………1
LEGAL STANDARD………………………………………………………………………...….4
ARGUMENT……………………………………………………………………………………..4
I.

II.
III.

Plaintiffs Are Likely to Succeed on Their Claims That the Executive Order
Violates the Establishment Clause, the Fifth Amendment’s Guarantee of
Equal Protection, and the Immigration and Nationality Act ……………………...4
Plaintiffs Have Standing and Will Suffer Irreparable Harm Absent an
Injunction ………………………………………………………………………..29
The Balance of Harms and Public Interest Militate Heavily in Favor of a
Temporary Restraining Order and Preliminary Injunction ……………………...37

CONCLUSION…………………………………………………………………………………38

i

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 3 of 43

Plaintiffs hereby seek a preliminary injunction and/or temporary restraining order
enjoining Executive Order 13780 in its entirety.
INTRODUCTION
Executive Order 13780 (the “Executive Order” or the “March 6 Order”), signed on
March 6, 2017, shares the same core constitutional problems as its predecessor issued five weeks
earlier: it discriminates on the basis of religion and nationality, violating the Constitution and the
Immigration and Nationality Act (“INA”).

The government “may not adopt programs or

practices . . . which . . . oppose any religion.” Larson v. Valente, 456 U.S. 228, 246 (1982)
(citation and punctuation omitted). “This prohibition is absolute.” Id. Voluminous evidence—
including public statements by the President and his close associates—demonstrates that the
March 6 Order, both in purpose and effect, discriminates against Muslims and their religion,
Islam. It also violates the clear statutory prohibition on nationality-based discrimination by the
executive branch. Moreover, the Executive Order causes severe and irreparable injury to the
individual plaintiffs, the organizational plaintiffs, and the organizational plaintiffs’ clients,
separating family members from one another, stranding people in unsafe locations overseas, and
stigmatizing and demeaning one religious group. The government’s own actions demonstrate
that there is no legitimate justification for this discriminatory Order. Accordingly, Plaintiffs
respectfully request that this Court enjoin its enforcement during the pendency of this case by
issuing either a temporary restraining order or a preliminary injunction prior to the Order’s
effective date of March 16, 2017.
BACKGROUND
President Donald Trump was inaugurated on January 20, 2017, having promised that, if
elected, he would enact a “shutdown of Muslims entering the United States.” See, e.g., Hausman

1

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 4 of 43

Decl. Ex. E, J.R. 85 (Statement by Donald J. Trump on Preventing Muslim Immigration (Dec. 7,
2015) [hereinafter Trump Statement on Preventing Muslim Immigration]). One week later, on
January 27, 2017, he signed Executive Order No. 13769. Among other things, the January 27
Executive Order barred all admissions of individuals from seven Muslim-majority countries for
an initial 90-day period; provided for the possibility of an indefinite extension of the ban on
those countries; banned Syrian refugees indefinitely; banned all other refugees for 120 days;
lowered the annual level of refugee admissions from 110,000 to 50,000; and created a
mechanism to give preference to Christian refugees living in Muslim-majority countries.
The January 27 Order created massive chaos and confusion in its short period of full
operation. It placed people at risk of persecution and torture, separated families, disrupted
workplaces, and interfered with courses of study. It was immediately challenged in several
courts, and was quickly enjoined in large part, most significantly by a nationwide injunction
issued by the District Court for the Western District of Washington on February 3, 2017. See
Washington v. Trump, No. C17–0141–JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017)
(enjoining Sections 3(c), 5(a)-(c), and 5(e) of the January 27 Executive Order); Darweesh v.
Trump, No. 17 CV 480, 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017) (prohibiting the government
from removing individuals pursuant to the Order); Aziz v. Trump, ___ F. Supp. 3d ___, 2017 WL
580855 (E.D. Va. Feb. 13, 2017) (granting preliminary injunction of portions of Order on
Establishment Clause grounds). The Ninth Circuit Court of Appeals issued an opinion declining
to stay the Washington injunction on February 9, 2017. Washington v. Trump, 847 F.3d 1151
(9th Cir. 2017).
On February 16, 2017, the government informed the Ninth Circuit that “the President
intends in the near future to rescind the Order and replace it with a new, substantially revised

2

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 5 of 43

Executive Order.” Gov’t en banc brief, Washington v. Trump, Doc. 154. A senior White House
official explained that the “revised” order would include “mostly minor technical differences”
from the original order, resulting in “the same basic policy outcome for the country.” 1
Notwithstanding the claimed national security risk allegedly caused by the decisions
enjoining the first Order, the revised Order—Executive Order 13780—was not issued until
March 6, 2017, more than a month later.2 The revised Order shares the same basic design as the
original: it bans individuals from six of the seven Muslim-majority countries banned in the
January 27 Order for 90 days, with additional bans or restrictions possible after the initial period
ends; and it bans all refugees for 120 days and reduces the annual level of refugee admissions
from 110,000 to 50,000. The revisions to the Order, such as exempting green card holders and
individuals who currently hold a valid visa, removing Iraq from the list of banned countries, no
longer indefinitely banning Syrian refugees, and removing an explicit preference for certain
refugees who are religious minorities do not, and cannot, cure the constitutional defects of the
original Order.
On February 7, 2017, Plaintiffs filed a complaint for declaratory and injunctive relief,
challenging the January 27 Executive Order. See Compl. (doc. #1). Because a nationwide
injunction had been previously entered in the Washington litigation, Plaintiffs moved for a
preliminary injunction only as to the provision of the Order limiting refugee admissions to
50,000 for the current fiscal year, and only on the basis of that provision’s violation of the
Refugee Act. See Mot. for Prelim. Inj. (doc. # 64). Following the issuance of the March 6
1

Hausman Decl. Ex. B, J.R. 76-78 (Matthew Nussbaum, Josh Gerstein and Cristiano Lima,
White House creates confusion about future of Trump's travel ban, Politico, Feb. 21, 2017).
2
At least part of that delay was attributed to the desire to avoid cutting short the positive press
the President received in the days following the President’s address to Congress. Hausman Decl.
Ex. FF, J.R. 276-77 (Laura Jarrett, Ariane de Vogue, and Jeremy Diamond, “Trump delays new
travel ban after well-reviewed speech,” CNN.com, March 1, 2017).
3

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 6 of 43

Executive Order, Plaintiffs amended their Complaint, see FAC (doc. # 89), and—in light of the
irreparable injury they will suffer because of the new Order—now file this motion, seeking to
immediately enjoin implementation of the new Order in its entirety.
LEGAL STANDARD
Motions for temporary restraining orders and preliminary injunctions are governed by the
same four-factor test: Courts consider whether plaintiffs have shown: (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); see also Centro Tepeyac v. Montgomery
Cty., 722 F.3d 184, 188-89 (4th Cir. 2013) (en banc) (outlining Winter standard). 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
I.

PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR CLAIMS THAT THE
EXECUTIVE ORDER VIOLATES THE ESTABLISHMENT CLAUSE, THE
FIFTH AMENDMENT’S GUARANTEE OF EQUAL PROTECTION, AND THE
IMMIGRATION AND NATIONALITY ACT
The Executive Order’s purpose is to prevent Muslims from coming to the United States.

Overwhelming evidence establishes this impermissible discriminatory purpose, including
repeated statements by the President and his closest advisors, the text of the Order itself, the
process leading up to its issuance, and the disconnect between its provisions and its stated
purposes.
When the government discriminates on the basis of religion, it violates both the
Establishment Clause and the equal protection component of the Fifth Amendment’s Due
Process Clause. Those provisions impose slightly different doctrinal requirements, as explained
4

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 7 of 43

below, see infra Part I.B, but they share a common underlying rule: The government may not
target a particular religion for disfavored treatment. See Lemon v. Kurtzman, 403 U.S. 602, 612
(1971) (enactment “must have a secular legislative purpose” under the Establishment Clause);
Larson, 456 U.S. at 244 (“The clearest command of the Establishment Clause is that one
religious denomination cannot be officially preferred over another.”); City of New Orleans v.
Dukes, 427 U.S. 297, 303 (1976) (per curiam) (describing “inherently suspect distinctions such
as . . . religion” under the Equal Protection Clause). As Justice O’Connor put it, “the 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 duties or benefits.” Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S.
687, 715 (1994) (O’Connor, J., concurring in part and concurring the judgment). The Executive
Order violates this basic rule.
A.

The Executive Order Was Motivated By Anti-Muslim Bias and Intended to Target
Muslims.
“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). Courts look to a number of factors in
assessing the purpose behind challenged governmental conduct, including, among others, the
nature and degree of disparate impact; the historical background and specific series of events
leading to enactment; the legislative or administrative history, contemporaneous statements made
by the decisionmakers; previous versions of the policy; and any departures from normal
processes or substantive considerations. See Hunter, 471 U.S. at 227-28; Arlington Heights, 492
U.S. at 266-68; McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 861-66 (2005); Church of the
5

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 8 of 43

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540 (1993). In other words, this
Court must consider not only the text and effect of the Order, but also the “the contemporaneous
legislative history,” “the historical context,” and “the specific sequence of events leading to [its]
passage.” McCreary, 545 U.S. at 862 (internal quotation marks omitted); accord Washington,
847 F.3d at 1167 (“It is well established that evidence of purpose beyond the face of the
challenged law may be considered.”). Here, these factors all point to one conclusion, and
overwhelmingly so—that Defendants’ predominant purpose was to target Muslims and single
them out for disfavor.
First, the direct evidence of intent in this case is striking and unusually extensive. Cf.
Smith v. Town of Clarkton, 682 F.2d 1055, 1064 (4th Cir. 1982) (noting that elected officials
“seldom, if ever, announce on the record that they are pursuing a particular course of action
because of their desire to discriminate against a racial minority”). As a candidate, President
Trump expressly stated numerous times that he intended, if elected, to ban Muslim immigrants
from entering the United States.3 Hausman Decl. Ex. E, J.R. 85 (Statement by Donald J. Trump
on Preventing Muslim Immigration (Dec. 7, 2015) [hereinafter Trump Statement on Preventing
Muslim Immigration]) (stating that “Donald J. Trump is calling for a total and complete
shutdown of Muslims entering the United States until our country’s representatives can figure
out what is going on”). Indeed, the President’s campaign website, which he continues to update
and maintain as President, to this day contains the same “statement on preventing Muslim
3

See also id., J.R. 85 (asserting that “there is great hatred towards Americans by large segments
of the Muslim population,” and “it is obvious to anybody the hatred is beyond comprehension”);
id. at Ex. V, J.R. 209 (Donald J. Trump (@realDonaldTrump), Twitter (December 7, 2015, 1:47
PM)); id. at Ex. W, J.R. 211-12 (Jenna Johnson, Trump calls for ‘total and complete shutdown of
Muslims entering the United States’, Wash. Post (Dec. 7, 2015)) (noting that in addition to the
call for the complete shutdown of Muslims entering the United States, President Trump had
signaled his support for “heavy surveillance of mosques” and that he “would consider
establishing a database to track all Muslims in the country”).
6

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 9 of 43

immigration.”4 These statements are highly probative. See id.; see also, e.g., Washington v.
Seattle Sch. Dist. No. 1, 458 U.S. 457, 471 (1982) (considering statements made by proponents
during an initiative campaign to determine whether voters adopted an initiative for an improper
purpose); Rivera v. Inc. Vill. of Farmingdale, 784 F. Supp. 2d 133, 148-49 (E.D.N.Y. 2011)
(considering campaign materials as probative of an illicit intent); cf. Edwards v. Aguillard, 482
U.S. 578, 587-93 (1987) (examining statements by law’s sponsor to determine intent); Busbee v.
Smith, 549 F. Supp. 494, 500 (D.D.C. 1982) (three-judge district court) (considering attitudes
and remarks of elected official who “played the instrumental role” in the challenged action),
aff’d 459 U.S. 1166 (1983). He has never repudiated that commitment.
When confronted with widespread objections to his ban, President Trump began to use
territory as a proxy for religion, but confirmed that it was still the same scheme.5 These
statements continued after the election. When asked almost two months later whether he still
intended to ban Muslim immigrants from the United States, President-elect Trump indicated that
his plans had not changed.6 Indeed, two days after the original Executive Order was issued,
Rudolph Giuliani, an advisor to President Trump, stated that then-candidate Trump had asked
Mr. Giuliani for help in “legally” creating a “Muslim ban”; that in response, Mr. Giuliani and
others decided to use territory as a proxy; and that this idea was reflected in the signed Order.7
4

Hausman Decl. Ex. E, J.R. 85 (Trump Statement on Preventing Muslim Immigration).
Hausman Decl. Ex. X, J.R. 219-20 (Meet the Press (NBC television broadcast July 24, 2016)
(in response to being asked if a plan similar to the now-enacted Order was a “rollback” from
“[t]he Muslim Ban,” then-candidate Trump stated: “I actually don’t think it’s a rollback. In fact,
you could say it’s an expansion. . . . I’m looking now at territory. People were so upset when I
used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m OK with
that, because I’m talking territory instead of Muslim.”).
6
Hausman Decl. Ex. Y, J.R. 245 (Katie Reilly, Donald Trump on Proposed Muslim Ban: ‘You
Know My Plans,’ Time (Dec. 21, 2016)).
7
Hausman Decl. Ex. Z, J.R. 247 (Amy B. Wang, “Trump asked for a ‘Muslim ban,’ Guiliani
says – and ordered a commission to do it ‘legally’”, Wash. Post (Jan. 29, 2017)) (Mr. Giuliani
5

7

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 10 of 43

Compare with Hunter, 471 U.S. at 229-33 (rejecting attempt to launder discriminatory motive by
choosing facially-neutral criteria that would, when applied, have the desired discriminatory
effect).
The same intent animates the revised Executive Order, which carries on the purpose of
the original Order. In a press conference on February 16, 2017, President Trump, discussing the
Ninth Circuit decision leaving the previous Order enjoined, said, “[W]e can tailor the order to
that decision and get just about everything, in some ways, more.”8 Days later, White House
advisor Stephen Miller affirmed President Trump’s statement, explaining that any changes to the
first Executive Order would be “mostly minor, technical differences” with “the same, basic
policy outcome for the country.”9

White House spokesperson Sean Spicer echoed these

comments on March 6, explaining, after President Trump signed the revised Order, “The
principles of the executive order remain the same.”10
Thus, while the revised Order differs in some respects from the first, it is no less a
reflection of discriminatory intent than the previous version. Cf. United States v. Fordice, 505
U.S. 717, 729-30 (1992) (“If policies traceable to the [unconstitutionally discriminatory] system
are still in force and have discriminatory effects, those policies too must be reformed to the
extent practicable . . . .”). Indeed, even without the President’s and his advisors’ explicit
statements to that effect, the progression of the policies makes this plain. The Orders have
identical titles, enact the same basic 90- and 120-day travel bans, and cite the same purported
explaining that “when [then-candidate Trump] first announced it, he said, ‘Muslim ban.’ He
called me up. He said, ‘Put a commission together. Show me the right way to do it legally.”).
8
Hausman Decl. Ex. G, J.R. 109 (Full Transcript: President Donald Trump’s News Conference,
CNN, February 17, 2017).
9
Hausman Decl. Ex II, J.R. 318 (Matt Zapotsky, A new travel ban with ‘mostly minor technical
differences’? That probably won’t cut it, analysts say, Wash. Post, Feb. 22, 2017).
10
Hausman Decl. Ex. H, J.R. 118 (William Gallo & Victoria Macchi, Trump Signs New Travel
Ban Order, VOA News, Mar. 6, 2017).
8

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 11 of 43

need to review vetting procedures. The Supreme Court has explained that the “development of
the . . . [challenged policy] should be considered when determining its purpose.” McCreary, 545
U.S. at 850-51; see Wallace v. Jaffree, 472 U.S. 38, 56-60 (1985) (concluding that statute had
improper religious purpose after weighing legislative history and text of related, predecessor
statute). In McCreary, the Court rejected the suggestion that a court could only examine “the last
in a series of governmental actions, however close they may all be in time and subject.” 545
U.S. at 866.

It explained, “the world is not made brand new every morning,” and “our

precedents sensibly forbid an observer to turn a blind eye to the context in which [the] policy
arose.” Id. See also Aziz, 2017 WL 580855, at *8 (rejecting government’s request to limit the
“temporal scope of the purpose inquiry” to President Trump’s post-inauguration statements,
noting, “a person is not made brand new simply by taking the oath of office”).
Second, the language of both the January 27 and March 6 Orders are replete with exactly
the kind of language the Supreme Court has found to indicate intent to discriminate on the basis
of religion. See, e.g., Lukumi, 508 U.S. at 534-35 (holding that, in context, statutory references
to “sacrifice” and “ritual” bespoke intent to target a particular religion, noting that “on this record
it cannot be maintained[] that city officials had in mind a religion other than Santeria”). The
January 27 Order employed multiple barely veiled references to stereotypes regarding Islam.
The Order referred to “honor killings,” Order §§ 1, 10(a)(iii); “violent ideologies,” Order § 1;
“persecution of those who practice religions different from their own,” Order § 1; and “foreign
nationals” being “radicalized,” Order § 10(a)(ii).

Although two of these references were

scrubbed from the revised Order, two others—pertaining to “honor killings” and “foreign

9

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 12 of 43

nationals” being “radicalized”—remain.

Revised Order § 11(ii), (iii).11 And while these

references are clear enough on their own terms, their meaning is undeniable when read against
the backdrop of the President’s prior statements regarding Islam, which invoked the same false
stereotypes about Muslims.12
Moreover, while the revised Order exempts LPRs and other individuals, see Revised
Order § 3(a), (b), it retains the first Order’s focus on banning travel from certain Muslimmajority countries. With the exception of Iraq, the original and revised Orders bar travel into the
United States by foreign nationals of the same countries. Id. § 2(c). All of them—Iran, Libya,
Somalia, Sudan, Syria, and Yemen—are over 90% Muslim. See Hausman Decl. Ex. R, J.R. 18498 (Central Intelligence Agency’s World Factbook). No non-Muslim majority countries are
designated in either the original or revised Order, and thus the Order will disproportionately
affect Muslims seeking to travel or enter the United States,13 which is of course probative of
intent. See, e.g., Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 487 (1997) (“[I]mpact of an
official action is often probative of why the action was taken in the first place since people

11

Unsurprisingly, the March 6 Order’s targeting of Muslims was apparent to those who
supported the Order, as well as those who opposed it. For example, a Breitbart article published
the same day indicated that “honor killings” are exclusively committed by Muslims, describing
them as “a brutal practice wherein Muslim males will murder or mutilate female family members
accused of bringing shame and dishonor to their families and Islam,” and predicted that the
March 6 Order “will likely increase the broad support Trump’s immigration policies enjoy.”
Hausman Decl. Ex. NN, J.R. 419-20 (Katie McHugh, Trump’s Executive Order Mandates
Government Reports on Honor Killings Committed by Migrants, Breitbart.com, Mar. 6, 2017).
12
Hausman Decl. Ex. JJ, J.R. 337 (Transcript of Donald Trump’s Aug. 21, 2016 Immigration
Speech, N.Y. Times, Sept. 1, 2016) (mentioning “honor killings” in the same sentence as
“Radical Islam”).
13
The revised Order does provide for some exceptions to this six-country ban, Revised Order §
3(c), but the waiver is subject to individual CBP officers’ unfettered discretion. In any case, the
possibility of discretionary waivers for some cannot cure the Order’s discriminatory purpose and
effect.
10

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 13 of 43

usually intend the natural consequences of their actions (citing Arlington Heights, 429 U.S. at
266)).
Third, the Orders are riddled with indications that the proffered security rationale neither
shaped the Order’s contours nor motivated its development. When the government proffers a
secular reason for challenged conduct, a court must assess whether the reason is “genuine, not a
sham, and not merely secondary to a religious objective.” McCreary, 545 U.S. at 864; see Santa
Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (explaining “the duty of the courts to
distinguish a sham secular purpose from a sincere one”) (internal quotation marks and alteration
omitted); cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (noting
“the general principle of evidence law that the factfinder is entitled to consider a party’s
dishonesty about a material fact as ‘affirmative evidence of guilt.’” (citation omitted)).
To begin, the White House adopted the January 27 Order without consulting any of the
agencies tasked with protecting national security—including the Departments of State, Justice,
Homeland Security, and Defense.14 In other words, if security was the goal, the government
used a patently irrational and highly irregular process for achieving that goal. This is strong
evidence of improper intent. See, e.g., Arlington Heights, 429 U.S. at 267 (“Departures from the
normal procedural sequence also might afford evidence that improper purposes are playing a
role.”); Smith, 682 F.2d at 1066 (“[D]eviations from the procedural norm by governmental
decisionmakers . . . are suspect when they lead to results impacting more harshly on one race
than on another”); Pac. Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142, 1164
(9th Cir. 2013) (“procedural irregularities” evidence of discriminatory intent). If the January 27
14

This fact was widely reported. See, e.g., Hausman Decl. Ex. I, J.R. 122-25 (Evan Perez et al.,
Inside the Confusion of the Trump Executive Order and the Travel Ban, CNN, Jan. 30, 2017);
Hausman Decl. Ex. J, J.R. 131-32 (Michael D. Shear et al., Judge Blocks Trump Order on
Refugees Amid Chaos and Outcry Worldwide, N.Y. Times, Jan. 28, 2017).
11

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 14 of 43

Order had actually been an effort to devise a policy response to a security concern, it is
inconceivable that its sweeping changes would have received no input from those in the
executive branch with expertise in homeland security, visa processing, or refugee admissions.15
But that is what all the evidence suggests, and, as the court in Aziz put it, the government has
never “described the process by which the [P]resident concluded that this action was necessary.”
Aziz, 2017 WL 580855, at *3.
The original Order’s scope also belies its stated purpose. Despite its professed aim “[t]o
temporarily reduce investigative burdens” and improve “the screening of foreign nationals,”
January 27 Order § 3(c), the Order barred entry by LPRs and people who had already been
issued visas. Put simply, LPRs and visa holders impose no “investigative burdens” because they
are not subject to any further “screening.” There is no way that their exclusion could have
advanced the goals stated in the text of the Order. This disconnect between the Order’s stated
purposes and its actual provisions further bespeaks pretext. See, e.g., Arlington Heights, 429
U.S. at 267 (“Substantive departures too may be relevant, particularly if the factors usually
considered important by the decisionmaker strongly favor a decision contrary to the one
reached.”); Greater New Orleans Fair Hous. Action Ctr., 648 F. Supp. 2d 805, 814-19 (E.D. La.
2009) (evaluating the city’s proffered justifications for its actions, finding them factually
unsupported, and concluding that the challenged governmental action therefore was pretextual
and an invidious motive could be inferred); Doe v. Village of Mamaroneck, 462 F. Supp. 2d 520,
549, 552 (S.D.N.Y. 2006) (same); see also Cent. Ala. Fair Housing Center v. Magee, 835 F.
15

As one commentator put it, “in the rational pursuit of security objectives, you don’t
marginalize your expert security agencies and fail to vet your ideas through a normal interagency
process.” Hausman Decl. Ex. K, J.R. 141-42 (Benjamin Wittes, Malevolence Tempered by
Incompetence: Trump’s Horrifying Executive Order on Refugees and Visas, Lawfare, Jan. 28,
2017) (“This is the first policy the United States has adopted in the post-9/11 era about which I
have ever said this.”).
12

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 15 of 43

Supp. 2d 1165, 1188-91 (M.D. Ala. 2011) (discussing at length how state law that had a
disparate impact on Latino children substantively departed from historical treatment of children
in general, thereby providing evidence of an intent to discriminate), vacated as moot, 2013 WL
2372302 (11th Cir. May 13, 2013).
The revised Order introduces additional inconsistencies and irrationalities. It removes
Iraq from the list of banned countries. But because the primary reasons it points to were just as
true on January 27 as they are on March 6, see Revised Order § 1(g), by removing Iraq, the
government has fundamentally undermined any argument that either the seven-country list, or a
selective subset of it, is inherently well-suited to the Order’s purported non-discriminatory aims.
Further, the government can no longer claim that the list is insulted from any discriminatory
purpose because Congress or a previous administration compiled it.
In the March 16 Order, the government also spotlights a case—presumably one of the
best the administration could find—in which a former refugee from Somalia was convicted of a
terrorism-related offense. See Revised Order § 1(h). But that person entered the United States as
a toddler;16 improved refugee screening obviously could not have predicted his behavior more
than a decade later.
The revised Order also resets the clock to zero, announcing fresh three- and four-month
bans for covered countries and refugees, respectively. Critically, the 30-day deadline for the
government to have completed and reported on its country-by-country analysis of available
vetting information under section 3(a) of the January 27 Order had already passed by the time the
March 6 Order was signed—and section 3(a) was never enjoined by any court. Yet the March 6
Order simply starts an entirely new 30 day period for the government to conduct the analysis that
16

Hausman Decl. Ex. HH, J.R. 291-92 (Nicolas Medina Mora & Mike Hayes, The Big
(Imaginary) Black Friday Bombing, Buzzfeed, Nov. 15, 2015).
13

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 16 of 43

it was supposed to have already completed. See Revised Order, § 2(a), (b). The government’s
apparent failure to take any real steps toward implementing this portion of the January 27 Order
suggests that the Orders’ purpose is what the President and his advisors have said all along—to
reduce Muslim immigration to the United States—not some national security purpose divorced
from most of the actions the government has actually taken.
In a post-hoc attempt to justify the Orders, the revised Order points to several pieces of
evidence that supposedly provide a security rationale for the ban. See Revised Order § (d), (e),
(f), (h). At the outset, these newfound explanations carry no weight in the intent analysis,
because they came about after the underlying policy was already chosen.

After-the-fact

investigations by the implementing agencies are not probative of the decision-makers’ preinvestigation motives.17 Nevertheless, it is striking how little those investigations produced. The
revised Order explains how the banned countries were selected, see id. § 1(b)(i), but it gives
virtually no explanation for why the President concluded that already-heightened screening
procedures for those countries might be inadequate. See Aziz, No. 2017 WL 580855, at *3.
The Order’s other pieces of evidence likewise present implausibly thin security reasons
for such a drastic change in immigration policy. Like its precursor, the Order identifies zero
people from any of the banned categories who have committed an act of terrorism. The only
conviction it cites—beyond the Somali refugee who arrived as a toddler—is a conviction that
took place in the context of a government-designed sting operation. See id. The defendants in
17

Moreover, the Secretary of Homeland Security acknowledged in an interview that the six
banned countries were not even the majority of those that might raise security concerns.
“There’s probably thirteen or fourteen other countries—not all of them Muslim countries, not all
of them in the Middle East—that have very questionable vetting procedures that we can rely on.”
Hausman Decl. Ex. L, J.R. 150-51 (Daniella Diaz, Kelly: There are “13 or 14” more countries
with questionable vetting procedures, CNN.com, Mar. 7, 2017). The Secretary offered no
explanation for why, given these apparent security concerns, only Muslim countries were
targeted in the Executive Order.
14

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 17 of 43

that case were from Iraq, which is no longer subject to the ban, and were never accused of
planning or carrying out an attack in the United States. The Order also claims that “more than
300 persons who entered the United States as refugees are currently subjects of counterterrorism
investigations by the Federal Bureau of Investigation.” Id. § 1(h). This statement is virtually
meaningless without further context, because the FBI opens thousands of terrorism assessments
each month. For instance, the FBI began 11,667 assessments in just four months from December
2008 to March 2009.18 Of those, only 427—less than 4%—led to more intensive investigations.
The government has declined to publish any further information about its FBI statistic.
Nor has the government even attempted to refute multiple internal documents suggesting
that the Order is irrational as a security measure. One recent DHS study concluded that an
individual’s “country of citizenship is unlikely to be a reliable indicator of potential terrorist
activity” and that “few of the impacted countries [under the EO] have terrorist groups that
threaten the West.”19 Another study by the DHS Office of Intelligence and Analysis, disclosed
publicly last week, determined that “most foreign-born, U.S.-based violent extremists likely
radicalized several years after their entry to the United States, limiting the ability of screening
and vetting officials to prevent their entry because of national security concerns.”20
In fact, numerous security, foreign policy, and intelligence officials have submitted
evidence that the Orders in fact “undermine[] the national security of the United States, rather
than making us safer,” and “cannot be justified on national security or foreign policy grounds.”
Hausman Decl. Ex. MM, J.R. 403 (Joint Declaration of Madeleine K. Albright, et al.). Four of
18

Hausman Decl. Ex. M, J.R. 153 (Charlie Savage, F.B.I. Casts Wide Net Under Relaxed Rules
for Terror Inquiries, Data Show, N.Y. Times, Mar. 26, 2011).
19
Hausman Decl. Ex. N, J.R. 158-59 (Ron Nixon, People From 7 Travel-Ban Nations Pose No
Increased Terror Risk, Report Says, N.Y. Times, Feb. 25, 2017).
20
Hausman Decl. Ex. O, J.R. 165 (TRMS Exclusive: DHS document undermines Trump case for
travel ban, The Maddow Blog, Mar. 2, 2017).
15

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 18 of 43

the signatories to that declaration “were current on active intelligence regarding all credible
terrorist threat streams directed against the U.S. as recently as one week before the issuance of
the” Order, and yet know of no “specific threat that would justify the travel ban.” Id. As these
experts have pointed out, “[t]he Administration has identified no information or basis for
believing there is now a heightened or particularized future threat from the seven named
countries.” Id. Instead, the Order “will aid ISIL’s propaganda effort and serve its recruitment
message by feeding into the narrative that the United States is at war with Islam,” and will harm
troops deployed abroad, the ability to gather intelligence, and law enforcement operations. Id.;
see also Aziz, 2017 WL 580855, at *3, *9 (extensively citing similar declaration); Hausman
Decl. Ex. LL, J.R. 360-400 (Amicus Brief of Former National Security Officials).
Here, as in McCreary, “[n]o reasonable observer could swallow the claim that the . . .
[defendants] ha[ve] cast off the objective so unmistakable” in their public statements and in the
original Executive Order. 545 U.S. at 872. To uphold the Order, the Court would have to ignore
a mountain of evidence that the Order’s primary purpose is to exclude Muslims from the United
States. The Supreme Court has not hesitated to strike down enactments where the record was
“wholly barren” of evidence that the policy would serve the proffered neutral purpose. This
Court should therefore enjoin the Executive Order in its entirety.21
21

The proper remedy is to enjoin the entire Order because discriminatory intent underlies the
whole thing. When an “entire policy [is] tainted with the vice of illegality,” courts usually enjoin
the entire action. United States v. Parke, Davis & Co., 362 U.S. 29, 46 (1960) (quotation marks
and alteration omitted). See, e.g., City of Richmond v. United States, 422 U.S. 358, 378 (1975)
(“An official action . . . taken for the purpose of discriminating . . . has no legitimacy at all.”);
United Gas Pipeline Co. v. Terrebonne Parish Police Jury, 319 F. Supp. 1138, 1141 (E.D. La.
1970) (“Because every section is interwoven and infected with this feature, this court finds that
the entire statute . . . is invalid.”). In this case, the Order does not offer separate justifications for
other provisions beyond the two bans. For example, it provides no explanation whatsoever for
why its drastic reduction in FY 2017 refugee admissions is in “the interests of the United States.”
Revised Order § 6(b). These ancillary provisions are part and parcel with the Order’s basic
16

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 19 of 43

B.

By Intentionally Discriminating Against Muslims, The Executive Order Violates
Multiple Establishment Clause and Equal Protection Prohibitions
The Executive Order’s discriminatory purpose violates all of the tests imposed by the

Religion Clauses, which protect people of all faiths. See Awad v. Ziriax, 670 F.3d 1111, 1133
(10th Cir. 2012) (upholding preliminary injunction against state constitutional amendment that
would have banned state courts from considering Sharia law and prevented Muslims from
seeking effective relief from state courts in family law and other matters). As described above,
see Part I.A, the primary purpose of the Order is to disadvantage Muslims. It must therefore be
enjoined under any one of the following tests.
1.

The Executive Order fails the Lemon test.

The Order violates the Establishment Clause because it fails the three-part test set forth in
Lemon v. Kurtzman¸ 403 U.S. 602, 612-13 (1971). Under this standard, government action: (1)
must have a secular primary purpose, (2) may not have the principal effect of advancing or
inhibiting religion, and (3) may not foster excessive entanglement with religion. Id. The test is
disjunctive, so that failure to satisfy any one prong violates the Establishment Clause. Freiler v.
Tangipahoa Parish Bd. of Educ., 185 F.3d 337, 343 (5th Cir. 1999). The Executive Order runs
afoul of both the first and second prongs.
Under Lemon, the Court must “inquire as to the purpose of the government action to
determine whether it is predominantly secular in nature.” See Trunk v. City of San Diego, 629
F.3d 1099, 1107 (9th Cir. 2011); cf. McCreary, 545 U.S. at 845 (holding that “there can be no
neutrality when the government’s ostensible object is to take sides”).
discriminatory goals. Cf. Hausman Decl. Ex. KK, J.R. 356 (Jens Krogstad & Jynnah Radford,
Pew Res. Ctr., Key Facts About Refugees to the U.S., Jan. 30, 2017) (“Muslims made up nearly
half (46%) of refugee admissions” in FY 2016.). In addition, the Court should enjoin the
refugee-cap reduction for the reasons stated in Plaintiffs’ previous motion for preliminary
injunction. See ECF No. 64.
17

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 20 of 43

When the government acts with the purpose of promoting or inhibiting a particular faith,
the resulting conduct or law is unconstitutional, regardless of the effect. McCreary, 545 U.S. at
869 (holding Ten Commandments displays by counties unconstitutional, where the evidence
showed that the counties posted the displays with the intent of promoting their religious dictates);
see also Edwards v. Aguillard, 482 U.S. 578, 585-86, 596-97 (1987) (rejecting state’s claimed
purpose—to protect academic freedom—for law requiring equal time for public-school
instruction in creationism and evolution and holding that the law violated Lemon’s purpose
prong). Purpose can be dispositive because, as the Supreme Court has explained, “the purpose
apparent from government action can have an impact more significant than the result expressly
decreed.” McCreary, 545 U.S. at 860-61.
The facts and analysis of McCreary are particularly illuminating in this case. At issue
there were displays of the Ten Commandments in two county courthouses. 545 U.S. at 851. As
initially posted, the Ten Commandments hung, standing alone, in the hallways of the County
courthouse.

The unveiling of one display featured the county executive’s minister, who

“testified to the certainty of the existence of God.” Id. at 868-69. After a lawsuit was filed, the
counties modified their displays, posting other historical documents with “highlighted references
to God as their sole common element.” Id. at 870. A third version of the display was mounted
when the county hired new attorneys. Id. The “Foundations of American Law and Government”
exhibit “placed the Commandments in the company of other documents the Counties thought
especially significant in the historical foundation of American government,” and the counties
argued that the third display resulted from permissible purposes, “including a desire ‘to educate
the citizens of the county regarding some of the documents that played a significant role in the
foundation of our system of law and government.’” Id. at 870-71.

18

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 21 of 43

In analyzing whether the third display was constitutional, the Court rejected the counties’
demand that it “abandon concern with purpose wholesale,” id. at 863, and explained, “When the
government acts with the ostensible and predominant purpose of advancing religion, it violates
that central Establishment Clause value of official religious neutrality, there being no neutrality
when the government's ostensible object is to take sides.” Id. at 860. Nor was the Court willing,
as the county suggested, to trivialize the purpose inquiry so that “any transparent claim to
secularity would satisfy it . . . to the point of ignoring history, no matter what bearing it actually
had on the significance of current circumstances.” Id. at 863-64. The Court explained that
the world is not made brand new every morning, and the Counties are simply
asking us to ignore perfectly probative evidence; they want an absentminded
objective observer, not one presumed to be familiar with the history of the
government’s actions and competent to learn what history has to show . . . The
Counties’ position just bucks common sense: reasonable observers have
reasonable memories, and our precedents sensibly forbid an observer “to turn a
blind eye to the context in which [the] policy arose.”
Id. at 866 (quoting Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000); other
internal citations omitted). And, in McCreary, notwithstanding the “new statements of purpose .
. . presented only as a litigating position,” 545 U.S. at 871, the history and context, the history
and context in which the third display arose pointed to one conclusion: [T]he “Counties were
simply reaching for any way to keep a religious document on the walls of courthouses
constitutionally required to embody religious neutrality.” Id. at 873.
Under this analysis, the Order likewise fails the purpose prong of the Lemon test. As
described in Part I.A, the ample indicia of intent—the President’s statements both before and
after the election, his advisor’s statements both before and after the Orders, the Orders’
stereotyping language, their targeting of majority-Muslim countries only, the complete absence
of any security-focused process, and the numerous ways in which the Orders’ provisions do not

19

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 22 of 43

rationally advance their stated objectives—all make plain that the purpose of the Orders all along
has been to disadvantage Muslims.

Moreover, Defendants have ensured that a clear line

continues to connect the two Orders: The March 6 Order directly references and defends the
January 27 Order, they share clear provisions and language, and President Trump and his aides
have made clear that the new Order is intended as a mere revision, with only minor tweaks to
aide in defending the Order in court. As in McCreary, the government here is grasping at straws
for any way it can continue to advance its unconstitutional purpose.
Though the Court could end its inquiry with Lemon’s purpose prong, the Executive Order
also fails Lemon’s effects prong and its sister inquiry, the endorsement test.22

These related

standards consider “whether, irrespective of government’s actual purpose, the practice under
review in fact conveys a message of endorsement or disapproval” of religion. Mellen v. Bunting,
327 F.3d 355, 374 (4th Cir. 2003) (internal quotation marks and other alterations omitted). In
applying these tests to statutes, this Court would determine whether an objective observer,
“acquainted with the text, legislative history, and implementation of the statute,” would perceive
it as a state endorsement of a religion or state-sponsored disapproval of religion. Santa Fe, 530
U.S. at 308. Here, an objective and informed reasonable observer—aware of the context in
which the revised Order was conceived and signed, as discussed at length above—would
perceive it as conveying a message of hostility and condemnation toward Islam and Muslims.
Cf. Larson, 456 U.S. at 253 (holding state law violated Lemon’s “principal effect” prong because
it authorized “the selective legislative imposition of burdens and advantages upon particular
22

Federal appellate courts have concluded that the endorsement test is the same, or very similar
to, Lemon’s effects prong and typically have treat the endorsement inquiry as informing the
Lemon analysis. See, e.g., Doe v. Indian River Sch. Dist., 653 F.3d 256, 282 (3d Cir. 2011) (“The
endorsement test and the second Lemon prong are essentially the same.”).

20

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 23 of 43

denominations”); Awad, 670 F.3d at 1123 (recognizing the harm imposed by an official message
of “exclusion and disfavored treatment” and condemnation of the Islamic faith).
2.

The Order fails the Larson test.

Under Larson, a law that is designed “to burden or favor selected religious
denominations” is subject to strict scrutiny. See Larson, 456 U.S. at 255; Lukumi v. Church of
the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993) (holding that such a
law “is invalid unless it is justified by a compelling interest and is narrowly tailored to advance
that interest”). Because, by intent and design, the Executive Order will disfavor Muslim visa
applicants, see supra Part I.A, it must survive strict scrutiny. The government must demonstrate
that the revised Order is closely fitted to furthering a compelling governmental interest. See, e.g.,
Larson, 456 U.S. at 247; accord Lukumi, 508 U.S. at 531 (law must be narrowly tailored to
advance a compelling governmental interest). This standard is exacting, and the government has
not met it here.
In analyzing the government’s asserted compelling interest in cases involving strict
scrutiny, courts have recognized that it not enough merely to assert a compelling interest without
showing that the challenged policy “actually furthers” that interest. See Holt v. Hobbs, 135 S.
Ct. 853, 864 (2015) (reversing prison’s denial of religious accommodation for Muslim prisoner’s
beard); Rich v. Fla. Dep’t. of Corrs., 716 F.3d 525, 533 (11th Cir. 2013) (“While safety and cost
can be compelling governmental interests, the Defendants have not carried their burden to show
that Florida’s policy [denying Jewish inmates kosher meals] in fact furthered these two
interests.”).
Even examining only the security rationale, the government has not met its heavy burden
of showing that the Order actually furthers the asserted compelling interest. As discussed above,

21

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 24 of 43

supra ___, the Department of Homeland Security and numerous national security experts have
concluded that the travel bans Defendants seek to impose do not advance national security
interests; on the contrary, they may harm the very interests Defendants claim to protect.
Moreover, the examples that the Executive Order provides as evidence for its security rationale
are inapposite. Finally, the government’s actions—in delaying the vetting assessment called for
by the original order, in delaying the release of the new order for press purposes, and in stating
that it could have applied the ban to other, non-Muslim countries, but chose not to—all indicate
that the national security justification for the ban is pretextual.
With no evidence that the Order actually furthers its asserted compelling interest, the
government is left to rely on conjecture and blatant appeals to stereotypes, like those repeated by
President Trump and his aides. But these are insufficient and, indeed, prohibited. See, e.g.,
Exodus Refugee Immigration, Inc. v. Pence, 838 F.3d 902, 904-05 (7th Cir. 2016) (Posner, J.)
(rejecting then-Governor Pence’s argument that excluding Syrians from state refugee assistance
program was not discriminatory because it was “based solely on the threat he thinks they pose to
the safety of residents of Indiana” and comparing it an invalid argument that “forbid[ding] black
people to settle in Indiana” would not be discriminatory if ostensibly based on fear, rather than
race); Hassan, 804 F. 3d at 309 (‘“[T]o infer that examples of individual disloyalty prove group
disloyalty and justify discriminatory action against the entire group is to deny that under our
system of law individual guilt is the sole basis for deprivation of rights.’” (quoting Korematsu
dissent)).
3.

The Order violates equal protection.

The Constitution’s guarantee of equal protection also prohibits the Order’s discrimination
on the basis of religion. See City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per

22

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 25 of 43

curiam) (describing “inherently suspect distinctions such as race, religion, or alienage”); United
States v. Brown, 352 F.3d 654, 668 (2d Cir. 2003) (“Religion, like race and gender, is an
impermissible consideration in government decisionmaking.”) (citation and internal quotation
marks omitted); see also Washington, 847 F.3d at 1167-68; Brown, 352 F.3d at 669 n. 18.23 For
the same reasons that the Order is invalid under the Establishment Clause, it fails strict scrutiny
under the equal protection component of the Fifth Amendment’s Due Process Clause.
C.

The Revised Order Violates INA § 202 and Is Not Authorized by INA §
212(f).

By suspending visa issuance to nationals of Iran, Libya, Somalia, Sudan, Syria, and
Yemen, the Order contravenes the INA’s prohibition on nationality discrimination and therefore
exceeds the President’s statutory authority to exclude noncitizens. Section 202(a)(1)(A) of the
INA, 8 U.S.C. § 1152(a)(1)(A), provides, with limited and immaterial exceptions, that “no
person shall receive any preference or priority or be discriminated against in the issuance of an
immigrant visa because of,” among other things, the person’s “nationality.” Passed in 1965, at
the height of the civil rights movement, Section 202 was an explicit repudiation of nationality
discrimination in immigration policy. See Olsen v. Albright, 990 F. Supp. 31, 37 (D.D.C. 1997)
(“The legislative history surrounding the 1965 Act is replete with the bold anti-discriminatory
principles of the Civil Rights Era.”). 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 (October 3, 1965).
23

Courts rely on the shared principles of these constitutional provisions in adjudicating claims.
See Lukumi, 508 U.S. at 532, 534, 540 (discussing common thread in equal protection and the
Religion Clauses).
23

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 26 of 43

The Order violates Section 202’s anti-discrimination command by relying on nationality
to suspend the issuance of visas and to ban entry. The Order explicitly acknowledges, multiple
times, that it is regulating “the visa-issuance process.” Revised Order §§ 1(a), 1(g), 3(c). This
directly contravenes Section 202(a)(1)(A)’s prohibition on “discriminat[ion] . . . in the issuance
of an immigrant visa because of . . . nationality.” Courts have interpreted this prohibition
broadly. See, e.g., Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d
469, 473 (D.C. Cir. 1995) (striking down a “nationality-based regulation” under Section 202
because “Congress has unambiguously directed that no nationality-based discrimination shall
occur”) (vacated on other grounds); Olsen, 990 F. Supp. at 38 (applying Section 202 to the
issuance of “nonimmigrant visa[s]”). And while the claimed source of authority—Section 212(f)
of the INA—speaks to barring “entry,” the revised Order does not bar “entry” at all. Nationals
of the six banned countries with valid visas can enter the country at any time, even while the
Order is in effect. See Revised Order § 3(a). As to people from those countries, the Order’s only
effect is to discriminate in the issuance of visas. By denying visas to “certain groups solely on
the basis of their nationality,” id., the Order does precisely what Section 202 prohibits.
Nor can Section 212(f) override Section 202’s nondiscrimination requirement. Section
202 was enacted in 1965, thirteen years after Section 212(f). Section 212(f) provides a general
authority, whereas Section 202 imposes a specific restriction. See_Radzanower v. Touche Ross
& Co., 426 U.S. 148, n.2 (1976) (“[T]he more specific legislation will usually take precedence
over the more general.”); United States v. Juvenile Male, 670 F.3d 999, 1008 (9th Cir. 2012)
(explaining that “[w]here two statutes conflict, the later-enacted, more specific provision
generally governs”). As the Supreme Court has cautioned, “the words of a statute must be read
in their context and with a view to their place in the overall statutory scheme.” Davis v.

24

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 27 of 43

Michigan Dep’t of Treasury, 489 U.S. 803, 809 (1989). Read together, Section 202 limits the
authority granted in Section 212(f).
Allowing the President to disregard Section 202 here would imply that, under Section
212(f), the President could override any of the INA’s visa criteria or inadmissibility grounds.
Indeed, that is exactly what the Order purports to do: It erases the normal immigration rules as
to the six countries, and it replaces them with categories of the President’s choosing. See
Revised Order § 3(c)(i)-(ix) (establishing which categories of people may be issued visas). That
cannot be what Section 212(f) allows. Cf. Clinton v. City of New York, 524 U.S. 417, 443 (1998)
(holding that Congress may not give the President “the power to cancel portions of a duly
enacted statute”). The INA carefully spells out its grounds for admissibility. See 8 U.S.C. §
1182. While Section 212(f) provides authority to block entry beyond those categories, it does
not allow the President to “nullif[y]” the contours of existing inadmissibility grounds or “evade
the limitations Congress” has imposed. Abourezk v. Reagen, 785 F.2d 1043, 1061 (D.C. Cir.
1986) (rejecting attempt to expand exclusion grounds beyond Congress’s “specified categories of
excludable aliens”).
Moreover, interpreting Section 212(f) to permit the President to engage in group
discrimination is inconsistent with the overall scheme Congress created to deal with potential
terrorism cases. The INA contains detailed substantive provisions that make individual
noncitizens inadmissible on the basis of terrorism related-concerns. Section 1182(a)(3)(B)
states that an alien may be denied admission if, among other things, that alien “has engaged in a
terrorist activity”; there is “reasonable ground to believe” that the alien “is engaged in or is likely
to engage after entry in any terrorist activity”; or the alien is “a member of a terrorist
organization.” 8 U.S.C. § 1182(a)(3)(B)(i)(I)-(II), (V)(VI). See also Kerry v. Din, 135 S. Ct.

25

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 28 of 43

2128, 2140 (2016) (Kennedy, J., concurring in the judgment) (noting that Congress has
“establish[ed] specific criteria for determining terrorism-related inadmissibility”). Thus,
Congress itself did not envision that terrorism-related concerns would be addressed through
religious or nationality discrimination banning entire groups wholesale, without any evidence
that a specific individual presented a threat. Rather, insofar as particular individuals present a
threat—regardless of their religion or nationality—they can be denied admission under the
provisions enacted by Congress to address these concerns.24
In its 60 year existence prior to the Executive Order, Section 212(f) has never been
invoked to justify so broad a nationality-based restriction on entry.

The vast majority of

Executive Orders citing 212(f) in the past have suspended the entry not of all foreign nationals
from a given country, but rather of noncitizens who have contributed to a specific, harmful
situation abroad.

See Kate M. Manuel, Executive Authority to Exclude Aliens: In Brief,

Congressional Research Service, January 23, 2017 (listing Presidential actions pursuant to
Section 212(f)).
Furthermore, section 212(f) says nothing of religion, has never been invoked to justify
religiously discriminatory exclusion, and should not be read to authorize exclusion of a “class”
of noncitizens on the basis of religion.25 Indeed, Section 212(f)’s text simply does not allow the
President to impose a restriction on entry that is religiously discriminatory. Rather, in addition to
the clear limitations on 212(f) authority imposed by other statutes and the Constitution, Section
212(f) itself requires that it be in “the interests of the United States” to impose the restriction at
24

Din, 135 S. Ct.at 2140 (Kennedy, J., concurring in the judgment) (noting that the decision to
deny a noncitizen entry under the INA’s “terrorism bar” is “legitimate” where there is a
“determination” that the particular individual does “not satisfy the statute’s requirements” ).

26

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 29 of 43

issue. The Constitution establishes that the United States has no “interest” in denying entry on a
religiously discriminatory basis, cf. Romer, 517 U.S. at 634-35, and Section 212(f) therefore
cannot be read to authorize the President to impose the ban at issue here.
In subsequent statutes, moreover, Congress has shown particular concern for religious
freedom, further undercutting an interpretation of 212(f) that would authorize exclusion of
members of a particular faith. See, e.g., Religious Freedom Restoration Act of 1993 (RFRA), 42
U.S.C. §2000bb et seq.; City of Boerne v. Flores, 521 U.S. 507, 516 (1997) (explaining that
RFRA’s application is “universal” across the federal government, including all federal statutes,
whether adopted before or after its enactment); see also, e.g., Religious Land Use and
Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq. Section 212(f) should be
understood against the backdrop of these laws and our Constitution’s unique emphasis on
religious nondiscrimination, and thus should be read to avoid the serious constitutional questions
that would be presented by a statute authorizing discrimination on the basis of religion. See
Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (explaining that “[w]e have read significant
limitations into . . . immigration statutes in order to avoid their constitutional invalidation” and
describing constitutional avoidance as a “cardinal principle” of statutory interpretation
In light of these considerations, any suggestion that Congress has authorized the
President to order a ban disfavoring Muslims is simply wrong. At minimum, because the statute
should be read to avoid the serious constitutional problems that permitting religious
discrimination would raise, the Court can rule for Plaintiffs on statutory grounds without
reaching the constitutional claims advanced here. But if Congress did, sub silentio, authorize
religious discrimination in § 212(f), that application of the provision is unconstitutional. Neither

27

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 30 of 43

Congress nor the President can override the Constitution. See Washington, 847 F.3d at 1164-68;
Aziz, No. 17-0116 at 10-12.
D.

The Order Is Reviewable.

Despite the government’s power in the context of immigration, courts have already
roundly rejected its view that the earlier version of the ban was unreviewable, explaining that “it
is beyond question that the federal judiciary retains the authority to adjudicate constitutional
challenges to executive action.” Washington, 847 F.3d at 1164; see also Aziz, 2017 WL 580855,
at *5 (“This is a familiar judicial exercise.”) (citation and internal quotation marks omitted).
Indeed, “the Supreme Court has repeatedly and explicitly rejected the notion that the political
branches have unreviewable authority over immigration or are not subject to the Constitution
when policymaking in that context.” Washington, 847 F.3d at 1162 (citing Zadvydas v. Davis,
533 U.S. 678, 695 (2001); INS v. Chadha, 462 U.S. 919, 940-41 (1983)); accord Aziz, 2017 WL
580855, at *6 (“Every presidential action must still comply with the limits set by Congress’
delegation of power and the constraints of the Constitution, including the Bill of Rights.”).
Having failed to convince courts to simply rubber-stamp the Order, the government has at
times argued for application of the deferential “facially legitimate and bona fide” standard
applicable to certain immigration actions. See Washington, 2017 WL 526497 at *6; Aziz, No.
17-0116 at 16. Such deference is inappropriate in a case, like this one, involving compelling
evidence of religious discrimination. Cf. Aziz, 2017 WL 580855, at *9 (observing that in light of
“the direct evidence of animus presented by the Commonwealth . . . a different picture
emerges”).

Indeed, the Supreme Court has never relied on the government’s immigration

powers to uphold religious discrimination. Cf. Lamont v. Woods, 948 F.2d 825, 835 (2d Cir.
1991) (noting that the Supreme Court “itself has suggested that the constitutional prohibition

28

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 31 of 43

against establishments of religion targets the competency of Congress to enact legislation of that
description—irrespective of time or place”).
In any event, the Order could not survive even under deferential review. As Judge
Brinkema explained in Aziz, if the government’s proffered reason “has been given in ‘bad faith,’
it is not ‘bona fide,’” meaning the Court must determine “whether the proffered reason . . . is the
real reason.” Aziz, 2017 WL 580855, at *8 (citing Am. Acad. of Religion v. Napolitano, 573 F.3d
115, 126 (2d Cir. 2009); accord Kerry v. Din, 135 S. Ct. 2128, 2141 (2015) (Kennedy, J.,
concurring in the judgment). Here, as set forth above, there is ample evidence that the purported
distinction drawn on the basis of nationality is pretext for religious discrimination, and is
therefore not bona fide.
II.

PLAINTIFFS HAVE STANDING AND WILL SUFFER IRREPARABLE HARM
ABSENT AN INJUNCTION.
“To establish standing under Article III of the Constitution, a plaintiff must 'allege (1) an

injury that is (2) fairly traceable to the defendant's allegedly unlawful conduct and that is (3)
likely to be redressed by the requested relief.'” Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir.
2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 590 (1992)). While standing is
necessary, "the Supreme Court has made it clear that the presence of one party with standing is
sufficient to satisfy Article Ill’s case-or-controversy requirement.” Id. (internal quotation marks
omitted). Here, all plaintiffs have standing. Moreover, absent a temporary restraining order
halting its implementation, the Executive Order will irreparably harm plaintiffs by, among other
things, violating their constitutional rights, placing at risk their family members, clients, and
members, and preventing or delaying their reunification with loved ones.
Plaintiffs have standing to assert their Establishment Clause claim based on the dignitary
and stigmatizing harms that flow from the government’s effort to target Muslims for opprobrium
29

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 32 of 43

and expose them to disfavored treatment. See id. at 372 (relying in part on stigmatic harms to
establish standing). When the government “condemns . . . [a Muslim Plaintiff’s] religion and
exposes him and other Muslims . . . . to disfavored treatment . . . [it] suffices to establish the kind
of direct injury-in-fact necessary to create Establishment Clause standing.” See Awad v. Ziriax,
670 F.3d 1111, 1123 (10th Cir. 2012); see also Catholic League for Religious and Civil Rights v.
City and Cty. of San Francisco, 624 F.3d 1043, 1048 (9th Cir. 2010) (holding that Catholic
residents had standing to challenge city’s resolution condemning Catholic Church’s directive
relating to adoption by same-sex couples). As a result of the Executive Order’s anti-Muslim
animus, the individual Muslim Plaintiffs, as well as the Muslim clients and members of HIAS,
IRAP, and MESA, have been marginalized and isolated in their communities, in addition to their
other injuries discussed above. They and their loved ones have been subjected to baseless
suspicion and scrutiny, all because Defendants have used their official positions and the
Executive Orders as vehicles to condemn Islam and carry out their deep prejudice against
Muslims. See Doe #1 Decl. ¶ 11, J.R. 45; Meteab Decl. ¶ 14, J.R. 53.
In addition to satisfying the requirements of standing, this kind of harm—arising from the
unconstitutional condemnation of one’s religion—qualifies as a paradigmatic irreparable injury.
Awad, 670 F.3d at 1131 (“Damages would be inadequate or difficult to ascertain . . . for a claim
of government condemnation of one’s religion”)(internal citation and quotation marks omitted);
see also, e.g., Am. Civil Liberties Union of Ky. v. McCreary Cty., 607 F.3d 439, 449 (6th Cir.
2010) (“The fact that Defendants seek to minimize the residue of religious purpose does not
mean that Plaintiffs do not suffer continuing irreparable injury so long as the display remains on
the walls of the county courthouses.”); Chaplaincy of Full Gospel Churches v. England, 454
F.3d 290, 304 (D.C. Cir. 2006) (holding that “a party alleging a violation of the Establishment

30

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 33 of 43

Clause per se satisfies the irreparable injury requirement of the preliminary injunction calculus”);
Am. Civil Liberties Union of Ill. v. City of St. Charles, 794 F.2d 265, 275 (7th Cir. 1986) (holding
that damages were inadequate to address Establishment Clause injuries); accord Centro Tepeyac
v. Montgomery Cty., 722 F.3d 184, 191 (4th Cir. 2013) (noting that the “loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”)
(citations and internal quotation marks omitted); Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d
249, 261 (4th Cir. 2003) (same).

Indeed, more generally, the violation of plaintiffs’

constitutional rights amounts to irreparable injury. See Ross v. Meese, 818 F.2d 1132, 1135 (4th
Cir. 1987).
The individual plaintiffs also have standing based on the delay or denial of their loved
ones’ visas, which will imminently and irreparably harm them, as described in more detail for
each Plaintiff below. See Bostic, 760 F.3d at 372 (holding that same-sex couple had standing to
challenge statute prohibiting their marriage, in part based on their allegation that their marital
status had hindered one from visiting the other in the hospital); Covenant Media Of SC, LLC v.
City Of N. Charleston, 493 F.3d 421, 428 (4th Cir. 2007) (holding that “the injury of not having
an application processed timely is distinct from the injury of ultimate denial of that application”).
Damages cannot adequately address this kind of injury.
Plaintiff John Doe #1’s wife currently lives in Tehran, where she has been alone since her
mother’s unexpected death in 2013. Doe #1 Decl. ¶ 3, J.R. 43. Her spousal visa application was
approved on November 3, 2016, and as of January 9, 2017, she had submitted all necessary
documentation and fees, and was awaiting scheduling of an interview, which was expected in
approximately six weeks at the time the Executive Order went into effect. Doe #1 Decl. ¶¶ 5-6,

31

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 34 of 43

J.R. 44. Her visa will now be denied or, at least, delayed in order to seek a waiver, and they will
remain separated.
Plaintiff John Doe #3’s wife, who lives in Iran, completed her visa interview in May
2016, and was told at the time that she only needed to await administrative processing. Doe #3
Decl. ¶ 5, J.R. 48. Her visa will not likewise be denied or delayed. Delay has already placed
extraordinary stress on their relationship; communicating by phone is difficult, and visiting Iran
is expensive and impractical, particularly given Plaintiff Doe #3’s fifteen days of leave per year.
Doe #3 Decl. ¶ 7, J.R. 48.
Jane Doe #2 is a U.S. citizen and a Syrian national. After the Syrian government bombed
her home in Damascus, Jane Doe #2’s sister fled with her husband and young children, first to
relatives and then, because her husband feared conscription to the Syrian Army, to Yemen. Jane
Doe #2 Decl. ¶¶ 3-4, J.R. 55. In Yemen, her sister’s family registered with the United Nations
High Commissioner for Refugees and received a temporary protection certificate; however, the
area where her family was living in Yemen was subsequently taken over by insurgents. Id. ¶¶ 56, J.R. 56. The family then fled to Saudi Arabia, where they remain, living in a refugee hotel
near the border with Yemen, often without power and in deplorable conditions, with constant
shelling from the Yemeni side of the border, and subject to severe discrimination because they
are Syrian. Id. ¶¶ 7-8, J.R. 56-57. Their visas will likewise be denied or delayed. Moreover,
they will have little chance of traveling to the United States as a refugee given the Order's
changes to the USRAP.
Plaintiff Meteab’s two brothers, who are currently living as refugees in Jordan, both
learned in November, 2016 that their refugee applications for the United States had been
approved, but that they would have to wait longer for the travel documents. Meteab Decl. ¶ 11,

32

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 35 of 43

J.R. 52-53. Plaintiff Meteab’s brothers’ permission to enter the United States will be denied or
delayed because of the Executive Order’s suspension and reduction of the refugee program will
delay their reunion as a family, and the reduction in the number of refugees who can be resettled
each year may create an even longer backlog in the system and delay for Mr. Meteab’s family. If
they are not able to obtain a waiver they will not be able to travel to the United States for the full
length of the suspension of the refugee program. They are currently living in insecurity in
Jordan. Meteab Decl. ¶ 13, J.R. 53.
Plaintiff Harrison’s fiancé is an Iranian national who lives in Tehran, where he has been
harassed and assaulted by morality police as a result of his homosexuality. Harrison Decl. ¶ 11,
J.R. 63-64. Plaintiff Harrison petitioned for a K-1 visa on behalf of his fiancé, and his fiancé had
a visa interview in Ankara, Turkey on November 7, 2016. Harrison Decl. ¶ 3, J.R. 62. On
January 17, 2016, Plaintiff Harrison’s fiancé received notification that the visa processing was
complete. Harrison Decl. ¶ 4, J.R. 62. However, on January 30, Plaintiff Harrison’s fiancé
received a second email informing him that, due to the January 27 Order, the processing of his
visa was on hold. Harrison Decl. ¶ 6, J.R. 63. On February 7, 2017, the Embassy sent another
email, this time informing Plaintiff Harrison’s fiancé that, because of the Washington court’s
order, he could submit his passport for processing. Harrison Decl. ¶ 7, J.R. 63. Plaintiff
Harrison and his fiancé therefore made plans to meet in Turkey in early March. Harrison Decl. ¶
8, J.R. 63.

They are currently in Turkey, and they submitted Plaintiff Harrison’s fiancé’s

passport to the embassy by express mail on March 8, 2017. Harrison Decl. ¶ 9, J.R. 63. The
March 6 Order takes effect, will result in the denial or delay of the visa.
Plaintiff Ibrahim Mohomed’s wife and children fled Somalia and have been in Ethiopia
since 2011. They are currently living in Ethiopia where his children are unable to attend school

33

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 36 of 43

as they do not speak the language and have limited access to health care. Id. ¶ 5, J.R. 61. They
were approved for refugee resettlement in 2013 but their travel to the United States has not yet
been booked. Id. ¶ 3, J.R. 60. The Executive Order suspends the arrival of refugees like Mr.
Mohomed’s family whose travel dates have not been set, and will delay or prevent their reunion
as a family.
Organizational plaintiffs IRAP, HAIS, and MESA, are all likewise harmed by the
Executive Order in ways that not only confer Article III standing, but that also constitute
irreparable injury necessitating preliminary injunctive relief. See Winters, 129 S. Ct. at 375.
Here, the organizational plaintiffs will be harmed because the new Executive Order is
“perceptibly impair[ing]” their programs, making it more difficult to carry out their mission.
Action NC v. Strach, 2016 WL 6304731, at *29 (M.D.N.C. Oct. 27, 2016) (citation omitted);
Lane v. Holder, 703 F.3d 668, 674-75 (4th Cir. 2012)); see also Multi-Channel TV Cable Co. v.
Charlottesville Quality Cable Operating Co., 22 F.3d 546, 551 (4th Cir. 1994) (injury is
irreparable when monetary damages are inadequate or difficult to ascertain), abrogated on other
grounds by Winter, 555 U.S. 7 (2008).
HAIS and IRAP have previously described some of the injuries caused by what is now §
6(d) in the second Executive Order, see Dkt. No. 64 p. 20-23, and those injuries will be
exacerbated if the additional provisions in the latest Executive Order go into effect. See Heller
Decl. ¶¶ 7-8, 17, J.R. 2-3, 6; Hetfield Decl. ¶ 12, J.R. 15-16. The Executive Orders, for
example, have and continue to cause IRAP to divert resources away from its core mission to
undertake activities that are far afield from the legal representation that it typically provides its
clients. See Heller Decl. ¶¶ 9-10, J.R. 14-15. Similarly injurious is that IRAP’s growth has been
impeded by the Order’s directives freezing refugee processing and drastically cutting annual

34

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 37 of 43

refugee admissions. Id. ¶ 12-16, J.R. 15-18; see Equal Rights Ctr. v. Equity Residential, 798 F.
Supp. 2d 707, 724 (D. Md. 2011) (“An organization's activities can be ‘impeded’ from growing
as quickly as they would have absent a diversion of resources”).
The Executive Order will also inflict a direct harm to MESA by preventing many of its
members from attending its annual meeting, which is a central part of MESA’s organizational
mission. See Barron Decl. ¶¶ 12-20, J.R. 39-41. In addition to injuring MESA itself, the Order
also directly and irreparably injuries its members, which are properly considered here as well.
See Virginia Hospital Ass’n v. Baliles, 868 F.2d 65, 663 (4th Cir. 1989); Assoc. Utility
Contractors of Maryland, Inc. v. Mayor & City Council of Baltimore, 218 F. Supp. 2d 749, 753
(D. Md. 2002). Many MESA members are Muslim, and many understand the message of the
prior and current versions of the Order to be an attack on Islam, and have justifiably believe that
the second Order will negatively impact them, their travel, and their work. See Baron Decl. ¶¶ 511, J.R. 37-39.
Additionally, IRAP and HIAS have standing to vindicate the rights of their clients, who
will be irreparably injured absent immediate injunctive relief. See Heller Decl. ¶¶ 19-23, 26, J.R.
6-8, 9 (explaining injuries to IRAP’s clients); Hetfield Decl. ¶¶ 22-37, J.R. 20-26 (same
regarding HIAS’ clients). Although litigants typically can only assert their own rights, the
Supreme Court has “recogniz[ed] that there may be circumstances where it is necessary to grant
a third party standing to assert the rights of another.” Kowalski v. Tesmer, 543 U.S. 125, 129-30
(2004) (citation omitted). Establishing third-party (or jus tertii) standing requires demonstrating
three elements:
The litigant must have suffered an “injury in fact,” thus giving him or her a
“sufficiently concrete interest” in the outcome of the issue in dispute; the litigant
must have a close relation to the third party; and there must exist some hindrance
to the third party’s ability to protect his or her own interests.
35

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 38 of 43

Powers v. Ohio, 499 U.S. 400, 410-11 (1991) (citation omitted). As discussed above, the first
element—IRAP and HIAS’ own constitutional standing—is plainly present here. As discussed
below, the other two elements, which are factual matters of prudential standing, are met as well.
With regard to the relationship element, courts consider whether enjoyment of the third
party’s right asserted by the litigant is “inextricably bound up with the activity the litigant wishes
to pursue,” such that the court can be assured that enjoyment of that right will be affected by the
outcome of the suit. Singleton v. Wulff, 428 U.S. 106, 114-14 (1976). In this case, IRAP and
HIAS seek to vindicate the rights of their clients, with whom they have pre-existing
relationships, and to whom they provide legal and social services. See, e.g., Heller Decl. ¶¶ 4-7,
21, J.R. 2, 7; Hetfield Decl. ¶¶ 5-9, J.R. 12-14. HIAS additionally seeks to vindicate the rights of
the refugee clients to whom, but for the Executive Order, it would be providing a variety of
services related to their resettlement in the United States. Hetfield Decl. ¶¶ 10-12, J.R. 14-16.
The rights IRAP and HIAS seeks to vindicate, moreover—the constitutional and statutory rights
not to be discriminated against because of religion and/or nationality, including in the issuance of
visas and other immigration benefits—are “inextricably bound up with the activity” IRAP and
HIAS wish to pursue: the continued delivery of legal and social services related to the travel,
immigration, and resettlement of their clients. Courts routinely find that relationships of this
nature are sufficiently close to meet this element of the third-party standing standards. See, e.g.,
Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718, 732 (S.D. Ind. 2016) (holding
that refugee resettlement agency had sufficiently close relationship with incoming Syrian refugee
clients that it could assert their equal protection rights), aff’d 838 F.3d 902 (7th Cir. 2016).26
26

See also, e.g., U.S. Dep’t. of Labor v. Triplett, 494 U.S. 715, 718-72 (1990) (attorney-client
relationship); Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 n.3 (1989)
36

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 39 of 43

Moreover, there are significant practical obstacles to IRAP and HIAS’ clients’ ability to
protect their own interests, including language and cultural barriers, as well as reasonable
concerns regarding the public and governmental scrutiny that would accompany them doing so.
See generally Heller Decl. ¶ 27, J.R. 9. The obstacles need not be “insurmountable” to meet this
element of the third-party standing doctrine,27 Singleton, 428 U.S. at 117; it is sufficient, rather,
that there is “some hindrance to the third party’s ability to protect his or her own interests,”
Powers, 499 U.S. at 411 (emphasis added)); see, e.g., id. (lack of incentive to bring suit a
sufficient hindrance); Singleton, 428 U.S. at 117 (same regarding privacy interests). The various
barriers facing HIAS and IRAP’s clients face in asserting their own rights meet this element as
well. See, e.g., Exodus, 165 F. Supp. 3d at 732-33.
III.

THE BALANCE OF HARMS AND PUBLIC INTEREST MILITATE
HEAVILY IN FAVOR OF A TEMPORARY RESTRAINING ORDER &
PRELIMINARY INJUNCTION.
The balance of harms and public interest weigh strongly in favor of granting a temporary

restraining order and preliminary injunction. See Winter, 555 U.S. at 24. In contrast to the
irreparable injury facing plaintiffs, the government has presented no evidence of harm resulting
from an injunction. The federal government’s interest in enforcing laws related to national
security, absent any evidence of a threat, cannot outweigh these real harms. See Washington,
847 F.3d at 1168 (dismissing the government’s claim of irreparable injury and noting that “the
Government has done little more than reiterate” its general interest in combatting terrorism)
(same), aff’ing sub. nom. United States v. Harvey, 837 F.2d 637, 642-43 (4th Cir. 1987) (en
banc); Sec’y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 958 (1984);
Metromedia, Inc. v. City of Sanddd Diego, 453 U.S. 490, 504 n.11 (1981) (vendor-customer);
Craig v. Boren, 429 U.S. 190, 195 (1976) (same); Scott v. Greenville County, 716 F.2d 1409,
1414-16 (4th Cir. 1983) (developer and prospective tenants).
27

Nor does it matter that one of the obstacles facing HIAS and IRAP’s clients could be mitigated
by proceeding under pseudonyms. See Singleton, 428 U.S. at 117.

37

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 40 of 43

(internal citations omitted). Likewise, the Eastern District of Virginia found that “[i]ronically,
the only evidence of in this record concerning national security indicates that the EO may
actually make the country less safe.” Aziz, 2017 WL 580855, at *10; see also Hausman Decl.
Ex. MM, J.R. 402-417 (Joint Declaration of Madeleine K. Albright, et al.); id. Ex. LL, J.R. 360400 (Amicus Brief of Former National Security Officials).
Finally, the public interest also strongly favors a preliminary injunction. As the Ninth
Circuit found, “the public . . . has an interest in free flow of travel, in avoiding separation of
families, and in freedom from discrimination.” Washington, 847 F.3d at 1169. The Court should
therefore issue a temporary restraining order and preliminary injunction.
CONCLUSION
The Court should grant the motion for a temporary restraining order and preliminary
injunction.

Dated: March 11, 201728

Respectfully submitted,

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

/s/ Omar Jadwat
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

28

This brief was updated to reflect the “J.R.” page numbering of the exhibits being filed
herewith, and to add a table of contents. The brief and the exhibits are otherwise identical to
those filed on March 10, 2017.
38

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 41 of 43

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]

Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[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 Cole
Daniel Mach
Heather L. Weaver
American Civil Liberties Union
Foundation
915 15th Street NW
Washington, DC 20005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
/s/ David Rocah
David Rocah (Bar No. 27315)
Deborah A. Jeon (Bar No. 06905)
Sonia Kumar (Bar No. 07196)
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]
39

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 42 of 43

[e-mail]
[e-mail]

Counsel for Plaintiffs

40

Case 8:17-cv-00361-TDC Document 95 Filed 03/11/17 Page 43 of 43

CERTIFICATE OF SERVICE
I hereby certify that on March 11, 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: March 11, 2017

/s/ Omar Jadwat
Omar Jadwat