State of Washington, et al., v. Trump., et al

Filing 194

MOTION for Leave to File Third Amended Complaint, filed by Plaintiffs Commonwealth of Massachusetts, State of California, State of Maryland, State of New York, State of Washington, Intervenor Plaintiff State of Oregon. (Attachments: # 1 Complaint 3rd Amended, # 2 Index of Exhibits, # 3 Index of Declarations, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L, # 16 Exhibit M, # 17 Exhibit N, # 18 Decl of Joint Former National Security Officials, # 19 Decl of Nima Ala, # 20 2nd Decl of Rabyaah Althaibani, # 21 Decl of Alireza Ayoubi, # 22 Decl of Shervin Beygi, # 23 Decl of Bahareh Bina, # 24 Decl of Ethan Devenport, # 25 Decl of Yasaman Esmaili, # 26 Decl of Mahdi Hajiaghayi, # 27 Decl of Mojdeh Jalali Heravi, # 28 Decl of Vahid Jazayeri, # 29 Decl of Mohammad Shafiei Khadem, # 30 Decl of Ahmad Moghaddam, # 31 Decl of Younes Nouri, # 32 Decl of Proshat Parsimoghadam, # 33 Decl of Emad Soroush, # 34 Decl of Tannaz Sattari Tabrizi, # 35 Decl of Seyed Danial Vaezi, # 36 Decl of Banafsheh Samareh Abolhasani, # 37 Decl of Armin Alaghi, # 38 Decl of Pegah Jalali Asheghabadi, # 39 3rd Decl of Rovy Branon, # 40 5th Decl of Asif Chaudhry, # 41 Decl of Maryam Dadkhahan, # 42 Decl of Jason Detwiler, # 43 2nd Decl of David Eaton, # 44 Decl of Kiana Ehsani, # 45 Decl of Ali Farhadi, # 46 Decl of Hoda Farhadi, # 47 Decl of Maryam Fayazi, # 48 Decl of Mohammad Ghaedi, # 49 Decl of Anne Greenbaum, # 50 Decl of Hannaneh Hajishirzi, # 51 2nd Decl of Deirdre Heatwole, # 52 Decl of Parisa Hosseinzadeh, # 53 Decl of Adam Mokhalalati, # 54 Decl of Shima Nofallah, # 55 4th Decl of Jeffrey Riedinger, # 56 Decl of Solmaz Shakerifard, # 57 Decl of Khadijeh Sheikhan, # 58 Decl of Ali Shojaie, # 59 Decl of Hema Yoganarasimhan, # 60 2nd Decl of Kathy Oline, # 61 2nd Decl of Dave Soike, # 62 2nd Decl of Rita Zawaideh, # 63 2nd Decl of Mitra Akhtari, # 64 2nd Decl of Melanie de Leon, # 65 Decl of Payam Fotouhiyehpour, # 66 2nd Decl of Marc Overbeck, # 67 2nd Decl of Sana Parsian, # 68 Decl of Sahar Z. Zangenah, # 69 2nd Decl of Dennis Galvan, # 70 Proposed Order) Noting Date 10/16/2017, (Melody, Colleen)

SECOND
DECLARATION OF
DEIRDRE
HEATWOLE

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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STATE OF WASHINGTON et al.,
Plaintiffs,

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v.

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CIVIL ACTION NO. 2:17-cv-00141-JLR

DONALD TRUMP, in his official
capacity as President of the United
States; U.S. DEPARTMENT OF
HOMELAND SECURITY; JOHN F.
KELLY, in his official capacity as
Secretary of the Department of
Homeland Security; REX W.
TILLERSON, in his official capacity
as Acting Secretary of State; and the
UNITED STATES OF AMERICA,

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Defendants.
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DECLARATION OF DEIRDRE HEATWOLE, ESQ.

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I, Deirdre Heatwole, hereby declare as follows:
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I am General Counsel for the University of Massachusetts ("UMass" or

"University"). UMass is public land grant university with five campuses located in Amherst,
Boston, Dartmouth, Lowell and Worcester, Massachusetts, with administrative offices in
Shrewsbury and Boston. I have been employed at the University in this capacity since 2009,

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and have been employed as an attorney in the University's legal office for a total of 27 years.
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My current duties include oversight of all the University's legal work, and supervising the

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attorneys in my office who provide legal advice and assistance to the offices that serve and

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support students and employees, and the offices which support and promote the University's

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many international associations and opportunities for both students and faculty.
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2.

I have either personal knowledge of the matters set forth below or, with respect

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to those matters for which 1 do not have personal knowledge, I have reviewed information

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gathered from University records by others within the organization, including the numbers of

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students and employees and their various home countries.

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3.

The September 24, 2017 Presidential Proclamation entitled "Presidential

Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into

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the United States by Terrorists or Other Public-Safety Threats" ("Proclamation") will negatively
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affect the ability of the University to continue to offer excellent public education in

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undergraduate, graduate, and professional programs at affordable rates. This, in turn, will affect

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UMass' ability to provide a well-educated workforce for the Commonwealth, reducing the

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significant amount of business and tax revenue these UMass-educated workers provide to the

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Commonwealth. UMass is the only public land-grant university in the Commonwealth, and the

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only public university authorized to award doctoral degrees. Additionally, the UMass Medical
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School at Worcester is the only public medical school in the Commonwealth, and UMass School
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of Law at the Dartmouth campus is the only public law school in the Commonwealth.
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The University currently employs approximately 25 individuals who are nationals

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of the eight countries referenced in the Proclamation (Chad, Iran, Libya, North Korea, Syria,

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Venezuela, Yemen and Somalia, or the "affected countries") and who are not lawful permanent

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residents of the United States. These individuals are employed in positions including, but not

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limited to, Post-Doctoral Fellow, Researcher, Lecturer, and Medical Resident. These individuals

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work on all of the University's campuses and for a wide variety of academic departments.

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As a result of the Proclamation, it is currently unclear whether these employees will

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be able to travel abroad for personal or professional reasons with any confidence that they will be

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permitted to return to the United States. Certainly, their families and friends who are fellow

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nationals cannot travel to the United States to visit them.

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6.

Each year, the University needs to fill dozens of academic and research positions.

Each year, in order to fill those positions, the University hires approximately 12 employees from
the affected countries in positions such as Assistant Professor, Lecturer, Postdoc Fellow, and

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Medical Resident. While some of these employees obtain work authorization while already in
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the United States, some do not. In recent years, the University has hired a number of nationals

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of the affected countries who were living abroad—most if not all Iranian nationals—and who

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came to the United States on an H-1B or 0-1 visa issued at a consulate abroad.

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The Proclamation will severely interfere with the University's ability to hire such

individuals in the future. For example, the University will no longer be able to hire Iranian

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nationals living abroad on H-1B or 0-1 visas, absent a discretionary "waiver," which is unlikely
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to be granted for an individual without prior contacts in the United States.
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The Proclamation will also adversely affect the University's ability to hire and retain

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nationals of the affected countries because it will curtail travel opportunities outside the United

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States for new employees who are holders of single-entry or expired visas from the affected

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countries. Although such visa-holders always need to apply for a visa to re-enter the United States

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if they travel outside the country, the Proclamation greatly diminishes or eliminates the possibility

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of getting such a visa. If such visa-holders wished to remain employed in the United States, they

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would therefore be effectively unable to travel internationally to visit family—for a wedding, or

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funeral, or any other occasion—or for professional reasons such as conferences or research.
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And, as with current employees, their families and friends from their home countries would be
unable to visit them in the United States.
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Each of UMass's employees from the affected countries was at one time a national

of an affected country applying at a consulate abroad for a visa for the first time. Many of these
individuals would not be employed by or enrolled in the University today had the Proclamation
been in effect at the time that they first sought entry to the United States. Given the indefinite nature

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of the Proclamation, it will adversely affect the University's future hiring and student enrollment
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indefinitely into the future.
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The University currently has approximately 180 students from the affected countries

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(including six students from Syria) who are not lawful permanent residents. These students include

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undergraduates as well as graduate students who serve as teaching assistants, research assistants,

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and in other roles.

As with the University's employees from the affected countries, the

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Proclamation imposes greater uncertainty as to whether these students will be able to return to the
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United States from trips to visit family or for academic or professional reasons. Their fellow21

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national families and friends, too, cannot visit them in the United States. And each of these

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students, too, was at one time a national of an affected country, applying at a consulate abroad for

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an F-l or other visa for the first time. The Proclamation will severely interfere with the University's

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ability to attract such students in the future.

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In the case of Syria, the University may never again be able to enroll a Syrian student

living abroad on an F-l visa, absent a discretionary "waiver," which appears unlikely to be granted
for an individual without prior contacts in the United States. In the case of Iran, it is unclear to what

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extent the undefined "enhanced screening and vetting requirements" referenced in the Proclamation
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will limit students' ability to obtain visas.
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Like the two prior Executive Orders of January 27, 2017 and March 6, 2017, the

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Proclamation will likely have a negative impact on the ability of UMass to operate its core business:

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education and research. The impact will likely be financial as well as reputational. UMass is a top-

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ranked research institution and must hire highly qualified research faculty from around the world
to continue our significant research enterprise. UMass spent over 650 million dollars last year in

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its research enterprise.
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The Proclamation purports to be an indefinite measure affecting UMass far into the

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future. It also arrives amidst continuing uncertainty engendered by constantly changing federal

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actions announced with limited or no notice and implemented with inadequate guidance.

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The Proclamation and associated uncertainty will likely delay and may prevent the

University from actively recruiting international faculty, researchers, and related personnel. This

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may translate into thousands of additional dollars spent by each campus, delays in research efforts,
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and potential delays or loss of federal funding for new research.
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UMass operates in a very competitive research environment but does not have the

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financial resources of many of our sister institutions in the Commonwealth. We have limited

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financial resources to provide affected faculty incentives to come to Massachusetts or to offer other

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support or resources that might mitigate the impact of the Proclamation on them or their families.

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As a result, the Proclamation's negative effects on recruitment of top international candidates may

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fall more heavily on UMass as an institution than on institutions with greater resources.

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The Proclamation's provisions allowing for potential discretionary "waivers" of the

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entry ban for particular applicants from the affected countries does not meaningfully diminish the
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uncertainty around hiring and recruitment that was created by the prior Executive Orders.

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Prospective students or faculty members will not be able to count on the existence of a discretionary

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waiver of the ban on entering the United States.

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Higher education is very much international in nature.

Students, faculty,

researchers, and staff regularly travel all over the world to participate in conferences, exchange
programs, seminars, and symposia with fellow students abroad.

The manner in which the

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Proclamation and the two prior Executive Orders were issued has made all travelers who are not
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United States citizens concerned about whether they can continue to move about the world. The

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Proclamation perpetuates that uncertainty, effectively barring substantial numbers of travelers

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from the affected countries, absent a discretionary waiver. Prospective students and faculty have

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many options and they can certainly elect to attend or work at schools in the UK, Africa, or the

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EU, rather than risk travel to the United States. In response to the Proclamation and the

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uncertainty surrounding its implementation, the University has advised nationals of the affected
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countries to exercise caution before engaging in nonessential international travel, and to consider
not departing the United States at all.
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It has required a considerable outlay of scarce resources to mitigate the effects of

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federal action that has been so immediate and is constantly changing. Efforts to identify affected

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UMass individuals outside the United States started within hours of notice of the first Executive

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Order. In the weeks thereafter, UMass was continually gathering data on the impact from a variety

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of sources: official federal statements, news reports, internal immigration updates prepared and

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sent to senior administrators, outreach to the international campus community in the form of legal

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resources, and discussions with retained immigration counsel. Additionally, UMass has had to
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create an internal crisis communication structure for alerting senior leadership and management of

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immigration changes with campus level task forces closely monitoring executive actions, initiating

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outreach to impacted members of the campus community, and identifying needs and resources.

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Retained outside counsel has repeatedly been engaged to assist in these campus community support

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efforts. Upon issuance of the Proclamation, the University was once again forced to devote
additional resources to analyze the Proclamation's impact on our faculty and other employees; to

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craft guidance for our campuses on how to respond and advise administrators on ongoing business
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operations; and once again to offer support to very concerned campus communities.
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For academic institutions, the Proclamation is particularly challenging with respect

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to both academic hiring, as discussed above, and student admissions. UMass campuses typically

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begin issuing offers of admission in mid-December and continue on a rolling basis through mid-

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July. Students have a short time to review offers and make decisions. Generally, students will be

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required to confirm their acceptance by paying a fee to secure their space, and some may be hesitant
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to do so in light of concems about the Proclamation. In turn, the University's calculation of whom
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to admit is now jeopardized by having to take into account whether a student from an affected

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country might be willing to accept, or instead, will decide not to attend UMass.

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administrators have already been advised to plan for F-l visa delays for the affected countries, and

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UMass

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to prepare to make admissions decisions for students from the affected countries on an expedited

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basis.

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These concerns all speak to potential long term financial and reputational damage

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to UMass - the quality of its students, researchers, faculty and staff will decline, UMass's reputation
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as a top research institution will decline, federal funding for research will decline, and enrollment

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will decline. A decrease in applications or enrollment at UMass will reduce revenue to the

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Commonwealth.

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UMass, an institution with over 150 years of service to the Commonwealth, years

of continued growth, and a strong commitment to its mission, is very seriously concerned about the
long-term impact of this indefinite Proclamation on UMass's future. The Proclamation will likely

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impair the University's ability to recruit and retain a diverse faculty, researchers, medical residents
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and staff, and to teach and support a diverse student body, enriched by a culture of inclusiveness

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and a high quality of international research participants. It may take years for UMass to fully

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understand the potential financial and reputational damage due to the loss of personnel, students,

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programs, grants caused by the Proclamation and the two preceding Executive Orders.

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! declare under penalty of perjury that the foregoing is true and correct.

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Executed on this/ /V^cfay of October, 2017

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Deirare Heatwole

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