State of Washington, et al., v. Trump., et al
Filing
94
MOTION to Intervene Attorney Scott J Kaplan added to party State of Oregon(pty:pla), filed by Plaintiff State of Oregon. (Attachments: # 1 Exhibit 1 to State of Oregon's Motion to Intervene) Noting Date 3/17/2017, (Kaplan, Scott)
The Honorable James L. Robart
1
5
ELLEN F. ROSENBLUM
Attorney General
SCOTT J. KAPLAN, WSBA #49377
Senior Assistant Attorney General
Oregon Department of Justice
100 Market Street
Portland, OR 97201
971-673-1880
Email: scott.kaplan@doj.state.or.us
6
Attorneys for Intervenor-Plaintiff
2
3
4
7
8
9
IN THE UNITED STATES DISTRICT COURT
10
FOR THE WESTERN DISTRICT OF WASHINGTON
11
12
STATE OF WASHINGTON, et al.,
13
14
15
CIVIL ACTION NO. 2:17-cv-00141-JLR
Plaintiffs,
v.
DONALD J. TRUMP, et al.,
16
Defendants.
17
18
STATE OF OREGON,
Intervenor-Plaintiff
19
20
21
22
23
24
25
INTERVENOR-PLAINTIFF'S PROPOSED
COMPLAINT IN INTERVENTION FOR
DECLARATORY AND INJUNCTIVE
RELIEF
v.
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 TILLERSON, in his
official capacity as Secretary of State; and the
UNITED STATES OF AMERICA,
Intervenor-Defendants
26
INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN
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Page 1
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 1 of 20
INTRODUCTION
1
1.
2
The State of Oregon (“Oregon”) joins this action in order to protect its residents,
3
its employers, its agencies, its educational institutions, and its state constitution and laws against
4
an Executive Order that harms the State of Oregon, its economy, its institutions, its families, its
5
laws, and its sovereign interest in serving as a welcoming home to people from all over the
6
world.
2.
7
On January 27, 2017, defendant Donald Trump signed Executive Order
8
No. 13769 (“the Executive Order”), which he titled “Protecting the Nation from Foreign
9
Terrorist Entry into the United States.” Defendant Trump has stated that the Executive Order
10
will be amended to respond to this Court’s rulings and those of the Ninth Circuit, but has not yet
11
done so, nor indicated that the damage done to Oregon by the Executive Order to Oregon will be
12
remedied.
13
3.
The Executive Order denies entry into the United States to, among others,
14
individuals from Iran, Iraq, Syria, Sudan, Libya, Yemen, and Somalia who are refugees or legal
15
permanent residents or who were issued valid student, work, or spousal visas (e.g., B-1, B- 2,
16
H-1B, L-1, O, F-1, F-2, J-1, J-2) entitling them to be in the United States.
4.
17
The Executive Order is neither designed nor intended to “protect the nation,” but
18
is rather a step in implementing the “total and complete shutdown of Muslims entering the
19
United States” that defendant Trump promised in his presidential campaign.
5.
20
Banning the entry of Oregonians and others from the seven Muslim-majority
21
countries named in the Order is a violation of the United States Constitution and unlawful under
22
federal statute, and it subjects the State of Oregon, its interest, residents, and laws to irreparable
23
harm.
JURISDICTION AND VENUE
24
25
26
6.
This Court has jurisdiction under 28 U.S.C. §§ 1331, 1346, 1361. This Court has
remedial authority under 28 U.S.C. § 2201 et seq.
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Page 2
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 2 of 20
1
7.
Venue is proper in this District under 28 U.S.C. §§ 1391(b)(2) and 1391(e)(1)(B).
2
8.
Oregon intervenes in this action pursuant to Fed R. Civ. P. 24(a) and 24(b).
3
PARTIES
4
Plaintiff-in-Intervention State of Oregon
5
9.
Petitioner-Intervenor is the State of Oregon.
6
10.
The Governor is the chief executive officer of the State of Oregon. The Governor
7
is responsible for overseeing the operations of the State of Oregon and ensuring that its laws are
8
faithfully executed.
9
11.
The Attorney General is the chief legal adviser to the State of Oregon. The
10
Attorney General’s powers and duties include acting in federal court on matters of public
11
concern.
12
12.
Oregon has codified its state policy that practices of unlawful discrimination
13
against any of its inhabitants because of religion or national origin are “a matter of state
14
concern,” and that such discrimination “menaces the institutions and foundation of a free
15
democratic state.” See ORS § 659A.006.
Defendants
16
17
13.
Defendant Donald Trump is the President of the United States, and issued the
18
January 27, 2017, Executive Order on which Defendants rely for authority to detain, remove, or
19
refuse admission to non-citizen immigrants from Iran, Iraq, Syria, Somalia, Sudan, Libya, and
20
Yemen who are traveling or returning to the States via air, land, and sea ports across the United
21
States, including Portland International Airport. He is sued in his official capacity.
22
14.
Defendant U.S. Department of Homeland Security (“DHS”) is a federal cabinet
23
agency responsible for implementing and enforcing the Immigration and Nationality Act
24
(“INA”). DHS is a Department of the Executive Branch of the U.S. Government, and is an
25
agency within the meaning of 5 U.S.C. § 552(f). The U.S. Customs and Border Protection is an
26
Operational and Support Component agency within DHS. The U.S. Customs and Border
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Page 3
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 3 of 20
1
Protection is responsible for detaining and/or removing non-citizen immigrants from Iran, Iraq,
2
Syria, Somalia, Sudan, Libya, and Yemen arriving at air, land, and sea ports across the United
3
States, including Portland International Airport.
15.
4
Defendant John F. Kelly is the Secretary of the Department of Homeland
5
Security. He is responsible for implementing and enforcing the INA, and oversees the U.S.
6
Customs and Border Protection. He is sued in his official capacity.
16.
7
Defendant Rex Tillerson is the Secretary of State. The Secretary of State has
8
authority to determine and implement certain visa procedures for non-citizens. He is sued in his
9
official capacity.
10
17.
Defendant the United States of America includes all government agencies and
11
departments responsible for the implementation of the INA and responsible for the admission,
12
detention, removal of non-citizen immigrants from Iran, Iraq, Syria, Somalia, Sudan, Libya, and
13
Yemen who are traveling to or returning to the States via air, land, and sea ports across the
14
United States, including Portland International Airport.
GENERAL ALLEGATIONS
15
16
17
A.
The Executive Order
18.
As a candidate for office, defendant Trump called for “a total and complete
18
shutdown of Muslims entering the United States,” claiming baselessly that “there is great hatred
19
towards Americans by large segments of the Muslim population.” His statement continued,
20
“Until we are able to determine and understand this problem and the dangerous threat it poses,
21
our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and
22
have no sense of reason or respect for human life.” (See Amended Complaint for Declaratory and
23
Injunctive Relief filed by State of Washington, Exhibit 1, ECF No. 18.)
24
19.
On June 14, 2016, candidate Trump reiterated his promise to ban all Muslims
25
entering this country until “we as a nation are in a position to properly and perfectly screen those
26
people coming into our country.” (See id., Ex. 3.)
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Page 4
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 4 of 20
20.
1
As President, defendant Trump signed the Executive Order. The stated purpose of
2
the Executive Order, signed on January 27, 2017, is to ensure that the United States is “vigilant
3
during the visa-issuance process to ensure that those approved for admission do not intend to
4
harm Americans and that they have no ties to terrorism.”
21.
5
The Executive Order asserts, “Numerous foreign-born individuals have been
6
convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign
7
nationals who entered the United States after receiving visitor, student, or employment visas.”
22.
8
9
10
they are a U.S. citizen or possess a diplomatic visa, North Atlantic Treaty Organization visa, C-2
visa for travel to the United Nations, or G-1, G-2, G-3, and G-4 visa.
23.
11
12
Section 3(c) of the Executive Order bans individuals from seven countries, unless
Only Muslim-majority countries are included in the ban: Iraq, Iran, Syria, Libya,
Somalia, Yemen, and Sudan are majority-Muslim countries.
24.
13
No person from Iraq, Iran, Syria, Libya, Somalia, Yemen, or Sudan in the United
14
States as a lawful permanent resident or under a work, student, or spousal visa has been
15
implicated in a terrorist plot in the United States since or before September 11, 2001. The
16
terrorist attacks that have occurred in the United States on or after September 11, 2001, have
17
been committed by extremists harboring a variety of ideologies, all of whom were from countries
18
not included in the ban, including the United States itself.
19
B.
Impact of the Executive Order on and in Oregon
Generally—Impact on Oregon’s Economy
20
21
25.
According to the American Community Survey data from the U.S. Census
22
Bureau, as of 2015, almost 7,000 Oregon residents were born in Iran, Iraq, Libya, Somalia,
23
Sudan, Syria, and Yemen. Almost 2,500 of those residents were not citizens of the United States
24
as of the date of the survey. As a result of the Executive Order, these Oregonians now cannot
25
leave the country to travel or visit their families without running a very real risk that they will not
26
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Page 5
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 5 of 20
1
be allowed to return home to Oregon, and cannot invite their families to visit without putting
2
their family members at risk of being turned away.
3
26.
Oregon’s economy will suffer if the immigration ban is enforced. Oregon’s
4
investment portfolio totaled about $92 billion in 2016; and as of the third quarter of 2016,
5
Oregon held more than 19 million shares in technology companies who have expressed alarm at
6
the likely impacts of the executive order on their businesses.
7
27.
Oregon’s companies employ immigrants, refugees, and others who would be
8
affected by the ban in more indirect ways (spouses of immigrants, for example). Threats to
9
Oregon’s companies will, as a result, result in serious risks to Oregon’s financial investments, its
10
credit rating, its companies, and its tax revenue from those companies and their employees. This
11
will impede the state’s economic health and will expose individuals who invest in Oregon-
12
facilitated funds to unnecessary and avoidable risk.
13
28.
Portland International Airport, located in Portland, Oregon, served over 670,000
14
international travelers in 2016. It has been estimated that international travelers from just one
15
major airline contributes over $172 million in business revenue to Oregon. The Executive Order
16
by interfering with international travel and deterring international travelers from coming to the
17
United States causing significant economic injury to Oregon.
Effect on Oregon of the Ban on Refugee Resettlement
18
19
29.
A ban on refugee resettlement would be harmful not only to the refugees and their
20
families, but also to the State of Oregon. Oregon is the home to many refugees. Since 2010,
21
more than 8,500 refugees have arrived in Oregon, with the majority resettling in Portland, and
22
the numbers have steadily increased from year to year. Three of the six most common refugee
23
groups come from Iran, Iraq, and Somalia.
24
30.
After a refugee is granted legal status and permission to enter the U.S., state
25
agencies and community organizations handle the “resettlement and acculturation process.”
26
Voluntary organizations (VOLAGS) do the initial resettlement, such as assisting with acquisition
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Page 6
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 6 of 20
1
of housing and basic necessities. The VOLAGS have 90 days to accomplish this resettlement
2
process. The Federal Office of Refugee Resettlement provides up to eight months of cash and
3
medical assistance. Those federal funds are administered through the Oregon Department of
4
Human Services.
5
31.
Ecumenical Ministries of Oregon (“Ecumenical Ministries”) assists
6
approximately 600 refugees each year, many of whom are reuniting with family members
7
already living in Oregon. That organization employs 12 people in Oregon who assist with
8
refugee resettlement in Oregon, and will have to terminate all of them if refugees are no longer
9
permitted to enter the United States, and may not be able to ever re-hire them. The State of
10
Oregon will accordingly lose the income taxes that were paid as a result of those jobs existing in
11
Oregon.
12
32.
Ecumenical Ministries receives approximately $75,000 per year in government
13
funding for refugee resettlement. If the ban were enforced and remained in place, the
14
organization would lose that funding, which could lead to staffing reductions in other parts of the
15
organization. Those job losses would also necessarily result in a loss of tax revenue to the State.
16
33.
Catholic Charities of Oregon (“Catholic Charities”) has operated a refugee
17
resettlement program for more than 60 years, successfully resettling thousands of refugees in
18
Oregon. A 120-day suspension of the refugee program would result in an immediate loss of
19
about $200,000 in revenue from the U.S. Department of State, and would put another $110,000
20
in funding at risk. Another $126,000 would be placed at risk if no new refugees were permitted
21
to enter during that 120-day period.
22
34.
Catholic Charities is not planning to fill any vacancies in its refugee resettlement
23
program and is already considering reducing its workforce by almost half. If the ban were to last
24
longer than 120 days, Catholic Charities would be forced to consider eliminating the remainder
25
of its staff. It is already pulling back from its plan to operate a resettlement office in Salem. The
26
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Page 7
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 7 of 20
1
layoffs and reduction in active offices will result in a loss of tax revenue from the eliminated
2
positions, as well as an economic impact from the money that will not be spent in Oregon.
3
35.
Immigrant and Refugee Community Organization (IRCO), a community-based
4
organization in Portland, has a mission of promoting the integration of refugees and immigrants
5
into the community at large. It works closely with the State of Oregon in assisting with refugee
6
resettlement.
7
36.
A substantial number of IRCO’s clients come from the countries subject to the
8
Executive Order. IRCO has already experienced a 50 percent drop in the number of refugee
9
arrivals seeking services. If the ban is given effect, IRCO may be forced to reduce services and
10
lay off Oregon employees. The layoffs will have an adverse effect on the State by reducing
11
income taxes and other spending as a result of those jobs no longer existing.
12
Effect on Oregon’s Institutions of Higher Education
13
37.
Oregon’s public and private colleges and universities would also be damaged, and
14
already have been damaged, by the immigration ban in the Executive Order. Oregon has seven
15
state universities and 17 community colleges, along with approximate 12-20 private colleges and
16
universities. Hundreds of students/professors at those universities and colleges are from one of
17
the seven countries covered by the Muslim travel ban. As a result, the work of those colleges is
18
adversely affected by this ban.
19
38.
Oregon’s 13,360 foreign students contributed $439.1 million to the state’s
20
economy in tuition, fees, and living expenses for the 2013-2014 academic year, according to
21
NAFSA: Association of International Educators. The students’ families contributed another $5.2
22
million. Foreign students and their spouses were calculated to have created 5,256 jobs in
23
Oregon, as of the date of the NAFSA report.
24
39.
The Executive Order directly harms Oregon colleges and universities that will not
25
be able to attract students or professors who would enrich their campuses and advance their
26
educational mission. Foreign-born faculty teaching at Oregon colleges and universities under a
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OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 8 of 20
1
valid visa typically have specialized expertise that cannot be easily replaced. Students studying
2
under a valid visa offer perspectives and experiences that cannot be replicated in their absence.
3
40.
The University of Oregon (UO) is a public research university with an enrollment
4
of more than 23,000 students, of whom more than 3,000 are from countries other than the United
5
States. Additionally, the school has 205 visiting international scholars and approximately 120
6
faculty members from other countries.
7
41.
Of the 3,016 international students at the UO, 38 are citizens of the seven affected
8
countries and are here on valid student visas. International students typically pay substantially
9
more than in-state students; those students pay more than $100 million in tuition each year, in
10
total. This tuition allows UO to subsidize Oregon students, who pay about three times less than
11
international students.
12
42.
The Executive Order would damage UO’s funding, its ability to attract an
13
international student undergraduate and graduate body, and its ability to retain faculty who may
14
not be able to return to the United States after travel, or who may find that their area of study has
15
suffered as a result of the ban. Even students from outside the seven immediately affected
16
countries have expressed a loss of enthusiasm for the prospect of studying in the United States.
17
UO’s Admissions Department has already seen a 15 percent decrease in applications from
18
international students.
19
43.
UO’s professors are also forced to weigh the benefit of academic travel against
20
the risk of not being permitted to return home, and the University itself is facing the likely loss of
21
participants in two international conferences already scheduled for UO campuses, because
22
attendees and international schools are hesitant to schedule travel to the United States.
23
44.
Portland State University (“PSU”), a public research university, has an enrollment
24
of about 25,000 students, of whom 1,929 are foreign nationals studying at PSU. Of those 1,929
25
students, 59 are citizens of the seven affected countries, and all are attending school on valid
26
student visas
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OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 9 of 20
1
45.
The 59 students from the seven affected countries at PSU are all paying tuition
2
and fees that are significantly higher than in-state resident tuition and fees. Approximately $33
3
million of PSU’s tuition and fee revenue in academic year 2015-16 was derived from
4
international students.
5
46.
The Executive Order is having an adverse impact on PSU’s 59 students from the
6
affected countries, who cannot travel without the risk of being forbidden to return; a visiting
7
researcher who traveled to Finland over the winter break and was prevented from returning and
8
continuing his research; and a recent graduate who are unable to return to PSU to present his
9
research at PSU with his graduate advisor. The presentation will likely occur outside the country
10
11
now, which requires PSU to bear the cost of having the research presented in another country.
47.
PSU’s ability to attract international students, and its ability to create a
12
community in which its students may build positive and lasting ties with foreign students, have
13
been damaged by the Executive Order.
14
48.
Oregon State University (OSU) has 3,529 international students enrolled,
15
comprising more than 11 percent of its student body of 30,354 students. Approximately 165
16
current students are citizens of the affected countries, studying in Oregon on student visas. As
17
with other students from outside Oregon, those 165 students typically pay full non-resident rates;
18
OSU’s international students represent approximately $85 million in annual gross tuition revenue
19
to OSU. Those students, as well as the school’s international scholars (faculty, post-doctoral
20
students, and others) are all affected by the Executive Order in ways that are affecting OSU’s
21
resources and staff, and draining away time and resources that otherwise would be spent on other
22
community needs.
23
49.
Lewis & Clark College, a private institution in Portland composed of three
24
schools (undergraduate, law school, and a graduate school of education and counseling) has
25
more than 200 international students from six continents enrolled currently. At least one of those
26
students is from a country subject to the ban in the Executive Order, and cannot participate in a
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OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 10 of 20
1
planned overseas study program, because that student can no longer expect to be allowed to
2
return to the United States.
3
50.
By interfering with the ability of students to travel and re-enter the United States
4
on student visas, the Executive Order disrupts the operation of Lewis & Clark’s programs and
5
services, and it damages the college’s ability to foster diversity and inclusion in its students’
6
lives. It also harms the college’s ability to attract and retain students from the countries subject
7
to the immigration ban, and is likely to have a chilling effect on Lewis & Clark’s ability to
8
recruit international students, causing both fiscal harm (loss of tuition) and harming the college’s
9
ability to foster a diverse and global student body.
Effect on Health Care in Oregon
10
11
51.
Oregon Health & Sciences University (“OHSU”), a public academic medical
12
center, has at least 15 individuals from the seven affected countries at its campus: six students,
13
two post-doctoral fellows, one professor, and six medical Residents. The school is expecting two
14
more post-doctoral fellows from Iran.
15
52.
Additionally, six medical Residents at OHSU are from the countries affected by
16
the Executive Order. Those residents are performing critically needed medical care in the fields
17
of surgery, pathology, and cardiology; if they were prevented from returning to the United States
18
after a trip abroad, or if they left the country due to the effects of the Executive Order, OHSU
19
likely would not be able to replace them. OHSU would as a result lack the necessary work force
20
to provide the services currently provided by those Residents, if it were to lose them. The loss of
21
even one Resident to a program carries a very high risk of an adverse impact on OHSU’s ability
22
to provide the patient care that the State of Oregon and Oregonians need.
23
53.
Oregon’s health care system will suffer additional injury as a result of the
24
Executive Order even outside of the impact on OHSU’s medical Residents. Particularly in rural
25
and underserved areas, Oregon is dependent on international medical graduates who have been
26
given a J-1 Visa to complete a medical residency or fellowship in the United States (“J-1 Visa
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OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 11 of 20
1
physicians”). A stipulation of the J-1 Visa is that, upon completion of training, the physicians
2
must return to their home country for two years. This requirement is “waived” for a physician
3
willing to work in a shortage area, in a position for which recruitment of a U.S. physician has
4
been unsuccessful. Oregon, like other states, has 30 J-1 slots per year, with up to 10 “flex” slots
5
available outside of designated Health Professional Shortage Areas, provided other program
6
requirements are met.
7
54.
There is a great deal of competition to obtain physicians willing to work on the
8
J-1 program. In the past, Oregon has been unable to fill all of its available slots and the
9
Executive Order will make this even more difficult. Already, one physician from a country
10
affected by the Executive Order who had been willing to work in Florence, Oregon, an area
11
affected by a physician shortage, has indicated through his counsel that because of the Executive
12
Order, he was unlikely to obtain a visa.
13
55.
Since 2002, approximately 320 J-1 visa physicians have practiced in Oregon,
14
including 16 physicians from the countries affected by the Executive Order. As required by the
15
visa, these physicians serve regions such as rural areas of southern and eastern Oregon that have
16
difficulty recruiting physicians domestically, particularly physicians who are willing to accept
17
the Oregon Health Plan or Medicare payment. Currently, physicians from Iran and Iraq are
18
practicing in underserved areas. Without J-1 visa physicians, Oregon patients will have to either
19
delay treatment or travel farther to obtain it, resulting in additional Oregon Health Plan and
20
Medicare costs to the State.
21
FIRST CLAIM FOR RELIEF
22
(Fifth Amendment – Equal Protection)
23
24
25
26
56.
Oregon realleges and incorporates by reference the allegations in the preceding
paragraphs of the Complaint.
57.
As alleged above, Oregon has codified its state policy that practices of unlawful
discrimination against any of its inhabitants because of religion or national origin are “a matter
INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN
INTERVENTION FOR DECLARATORY AND INJUNCTIVE
RELIEF (2:17-cv-00141-JLR)
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Page 12
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 12 of 20
1
of state concern,” and that such discrimination “menaces the institutions and foundation of a free
2
democratic state.” See ORS 659A.006.
3
58.
The State’s interest in protecting the health, safety, and well-being of its residents,
4
including protecting its residents from harms to their physical or economic health as a result of
5
discrimination on the basis of their national origin, is a quasi-sovereign interest.
6
7
8
9
10
11
59.
The Due Process Clause of the Fifth Amendment prohibits the federal
government from denying equal protection of the laws.
60.
Sections 3 and 5 of the Executive Order, together with statements made by
Defendants concerning their intent and application, target Oregonians for discriminatory
treatment based on their country of origin and/or religion, without lawful justification.
61.
The Executive Order was motivated by animus and a desire to harm a particular
12
group of individuals from seven countries, due solely to their national origin and their presumed
13
religion, and due to the “hatred” and “no sense of reason or respect for human life” attributed
14
baselessly to them by Defendant Trump.
15
16
17
18
19
62.
The discriminatory terms and application of the Executive Order are arbitrary and
cannot be sufficiently justified by federal interests.
63.
Through their actions above, Defendants have violated the equal protection
guarantee of the Fifth Amendment.
64.
Defendants’ violation has caused and will continue to cause harm to Oregonians
20
and to the State of Oregon, deprived as it is of its residents’ full and free participation in the life
21
and economy of the State.
22
SECOND CLAIM FOR RELIEF
23
(First Amendment—Establishment Clause)
24
25
65.
Oregon realleges and incorporates by reference the allegations set forth in the
preceding paragraphs
26
INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN
INTERVENTION FOR DECLARATORY AND INJUNCTIVE
RELIEF (2:17-cv-00141-JLR)
SK/rh2/8063034-v2
Page 13
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 13 of 20
1
66.
The Establishment Clause of the First Amendment prohibits the federal
2
government from officially preferring one religion over another, or preferring those who follow a
3
religion over those who do not follow any religion. These principles are also embodied in Art. 1,
4
secs. 2 through 6 of the Oregon Constitution.
5
67.
Sections 3 and 5 of the Executive Order, together with statements made by
6
Defendants concerning their intent and application, are intended to disfavor Islam and favor
7
Christianity.
8
68.
Section 5 of the Executive Order directs the Secretary of Homeland Security to
9
“to prioritize refugee claims made by individuals on the basis of religious-based persecution,
10
provided that the religion of the individual is a minority religion in the individual’s country of
11
nationality.” Each affected country is majority Muslim; this explicitly places members of other
12
religions ahead of Muslims. It also places members of minority religions above refugees who
13
do not follow any religion.
14
15
16
69.
Through their actions above, Defendants have violated the Establishment Clause
of the First Amendment.
70.
Defendants’ violation causes harm to the State of Oregon, by preventing non-
17
religious and Muslim immigrants from traveling to Oregon and contributing to the life and
18
economy of the State, to its colleges and universities, and to its businesses and tax revenues, as
19
refugees have done for years in Oregon.
20
THIRD CLAIM FOR RELIEF
21
Fifth Amendment—Procedural Due Process
22
23
24
25
71.
Oregon realleges and incorporates by reference the allegations set forth in the
preceding paragraphs
72.
The Due Process Clause of the Fifth Amendment prohibits the federal
government from depriving individuals of their liberty interests without due process of law.
26
INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN
INTERVENTION FOR DECLARATORY AND INJUNCTIVE
RELIEF (2:17-cv-00141-JLR)
SK/rh2/8063034-v2
Page 14
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 14 of 20
1
2
3
73.
Where Congress has granted statutory rights and authorized procedures applicable
to arriving and present non-citizens, minimum due process rights attach to those statutory rights.
74.
Sections 3 and 5 of the Executive Order conflict with the statutory rights and
4
procedures directed by Congress. In issuing and implementing the Executive Order, Defendants
5
have violated the procedural due process guarantees of the Fifth Amendment.
6
75.
Defendants’ violation causes ongoing harm to Oregon residents and to the State of
7
Oregon, by preventing people from traveling to Oregon and contributing to the life and economy
8
of the State, to its colleges and universities, to its businesses, and to the medical care that Oregon
9
provides for its rural and low-income citizens.
10
FOURTH CLAIM FOR RELIEF
11
(Immigration and Nationality Act —Discriminatory Visa Procedures)
12
13
14
76.
Oregon realleges and incorporates by reference the allegations set forth in the
preceding paragraphs.
77.
The Immigration and Nationality Act, 8 U.S.C. § 1152(a)(1)(A), prohibits
15
discrimination in the issuance of immigrant visas on the basis of race, nationality, place of birth,
16
or place of residence.
17
78.
Sections 3 and 5 of the Executive Order, together with statements made by
18
Defendants concerning their intent and application, discriminate on the basis of race, nationality,
19
place of birth, and/or place of residence in the issuance of visas, in violation of the Immigration
20
and Nationality Act.
21
79.
Defendants’ violation causes ongoing harm to Oregon residents and to the State of
22
Oregon, by preventing people from traveling to Oregon and contributing to the life and economy
23
of the State, to its colleges and universities, and to the medical care that Oregon provides for its
24
rural and low-income citizens.
25
26
INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN
INTERVENTION FOR DECLARATORY AND INJUNCTIVE
RELIEF (2:17-cv-00141-JLR)
SK/rh2/8063034-v2
Page 15
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 15 of 20
1
FIFTH CAUSE OF ACTION
2
(Immigration and Nationality Act — Denial of Asylum and Withholding of Removal)
3
4
5
80.
Oregon realleges and incorporates by reference the allegations set forth in the
preceding paragraphs.
81.
The Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3), entitles
6
certain non-citizens arriving at Oregon ports of entry to apply for asylum and withholding of
7
removal.
8
9
10
11
82.
As implemented, the Executive Order suspends all immigrant and nonimmigrant
entry into Oregon by individuals from seven countries and forecloses their ability to apply for
asylum and withholding of removal.
83.
Defendants’ violation causes ongoing harm to Oregon residents and to the State of
12
Oregon, by preventing people from traveling to Oregon and contributing to the life and economy
13
of the State, to its colleges and universities, to its businesses, and to the medical care that Oregon
14
provides for its rural and low-income citizens.
15
SIXTH CAUSE OF ACTION
16
(Foreign Affairs Reform and Restructuring Act —
17
Denial of Convention Against Torture Relief)
18
19
20
84.
Oregon realleges and incorporates by reference the allegations set forth in the
preceding paragraphs.
85.
The Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C. § 1231 note,
21
implements the United Nations Convention Against Torture, which the United States ratified in
22
1994. Pub. L. 105-277, div. G, subdiv. B, title XXII, § 2242. Under the Convention Against
23
Torture, the United States may not involuntarily return any person to a country where there are
24
substantial grounds for believing the person would be in danger of being subjected to torture.
25
26
INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN
INTERVENTION FOR DECLARATORY AND INJUNCTIVE
RELIEF (2:17-cv-00141-JLR)
SK/rh2/8063034-v2
Page 16
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 16 of 20
1
86.
As implemented, the Executive Order suspends all immigrant and nonimmigrant
2
entry into Oregon by individuals from seven countries and forecloses their ability to apply for
3
relief under the Convention Against Torture.
4
87.
The Executive Order likewise precludes an individualized determination by the
5
Secretary of State as to whether an individual immigrant is entitled to enter the country, under
6
the Convention Against Torture. That determination is required under the law.
7
88.
Defendants’ violation causes ongoing harm to Oregon residents and to the State of
8
Oregon, by preventing people from traveling to Oregon who have a protected Due Process
9
liberty interest in doing so, and thereby prevents them contributing to the life and economy of the
10
State, to its colleges and universities, and to its businesses.
11
SEVENTH CAUSE OF ACTION
12
(Religious Freedom Restoration Act)
13
14
15
89.
Oregon realleges and incorporates by reference the allegations set forth in the
preceding paragraphs.
90.
The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1(a), prohibits the
16
federal government from substantially burdening the exercise of religion, even if the burden
17
results from a rule of general applicability.
18
91.
Section 3 of the Executive Order, if implemented, will result in substantial
19
burdens on the exercise of religion by non-citizen immigrants by, for example, preventing them
20
from exercising their religion while in detention, returning to their religious communities in
21
Oregon, and/or taking upcoming, planned religious travel abroad. Such burdens on religion
22
violate the Religious Freedom Restoration Act.
23
92.
Defendants’ violation causes ongoing harm to Oregon residents and to the State of
24
Oregon, by preventing Oregon from enforcing its policy and laws against religious
25
discrimination, by preventing spending at Oregon-based travel-related businesses by those
26
Oregon residents, by denying the State tax revenues that would have been derived from those
INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN
INTERVENTION FOR DECLARATORY AND INJUNCTIVE
RELIEF (2:17-cv-00141-JLR)
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Page 17
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 17 of 20
1
transactions, and by preventing the State from providing convenient medical care to rural and
2
low-income Oregonians.
3
EIGHTH CAUSE OF ACTION
4
(Procedural Violation of the Administrative Procedure Act)
93.
5
6
Oregon realleges and incorporates by reference the allegations set forth in the
preceding paragraphs.
94.
7
The Administrative Procedure Act, 5 U.S.C. §§ 553 and 706(2)(D), requires that
8
federal agencies conduct formal rulemaking before engaging in action that impacts substantive
9
rights.
10
95.
In implementing Sections 3 and 5 of the Executive Order, federal agencies have
11
changed the substantive criteria by which individuals from affected countries may enter the
12
United States. Federal agencies did not follow the procedures required by the Administrative
13
Procedure Act before taking action affecting these substantive rights.
14
15
16
96.
Through their actions above, Defendants have violated the Administrative
Procedure Act.
97.
Defendants’ violation causes ongoing harm to Oregon residents who were
17
deprived of the opportunities and protections under the rulemaking system that federal law
18
requires, and to the State of Oregon by preventing the entry and re-entry of people into Oregon
19
who would have contributed to the life and economy of the State and contributed to its tax
20
revenues.
21
NINTH CLAIM FOR RELIEF
22
(Substantive violation of the Administrative Procedure Act)
23
24
25
26
98.
Oregon realleges and incorporates by reference the allegations set forth in the
preceding paragraphs.
99.
The State realleges and incorporates by reference the allegations set forth in each
of the preceding paragraphs of this Complaint.
INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN
INTERVENTION FOR DECLARATORY AND INJUNCTIVE
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Page 18
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 18 of 20
1
2
3
100.
The Administrative Procedure Act, 5 U.S.C. § 706(2), prohibits federal agency
action that is arbitrary, unconstitutional, and contrary to statute.
101.
In implementing Sections 3 and 5 of the Executive Order, federal agencies have
4
taken unconstitutional and unlawful action, as alleged herein, in violation of the Administrative
5
Procedure Act.
6
7
8
9
102.
In implementing Sections 3 and 5 of the Executive Order, federal agencies have
applied provisions arbitrarily, in violation of the Administrative Procedure Act.
103.
Defendants’ violation causes ongoing harm to Oregon residents who were
deprived of the opportunities and protections under the rulemaking system that federal law
10
requires, and to the State of Oregon by preventing the entry and re-entry of people into Oregon
11
who would have contributed to the life and economy of the State and contributed to its tax
12
revenues.
13
TENTH CLAIM FOR RELIEF
14
(Tenth Amendment)
15
16
17
18
19
20
21
104.
Oregon realleges and reincorporates the allegations set forth in each preceding
paragraph of this Complaint.
105.
The Tenth Amendment reserves all powers not enumerated in the Constitution to
the states and prohibits the federal government from commandeering state legislative processes.
106.
The Tenth Amendment prohibits the federal government from directly compelling
states to enact and enforce federal law.
107.
Sections 3 and 5 of the Executive Order, together with statements made by
22
Defendants concerning their intent and application, target individuals for discriminatory
23
treatment based on their country of origin and/or religion, without lawful justification and
24
contrary to ORS 659A.006.
25
26
INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN
INTERVENTION FOR DECLARATORY AND INJUNCTIVE
RELIEF (2:17-cv-00141-JLR)
SK/rh2/8063034-v2
Page 19
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 19 of 20
1
108.
Oregon, its employers, housing providers, business and government entities have
2
long been prohibited by Oregon law from discriminating against people based on national origin
3
in employment, housing, education, and in places of public accommodation.
4
109.
The Executive Order effectively mandates that Oregon engage in discrimination
5
based on national origin and/or religion, thereby nullifying Oregon’s historic protection of civil
6
rights and religious freedom.
7
110.
Through their actions above, Defendants have violated the Tenth Amendment.
8
111.
Defendant’s violation is causing ongoing harm to Oregon.
PRAYER FOR RELIEF
9
10
11
12
13
112.
Wherefore, the State of Oregon prays that the Court:
a.
Declare that Sections 3(c), 5(a)-(c), and 5(e) of the Executive Order are
unauthorized by and contrary to the Constitution and laws of the United States;
b.
Enjoin Defendants from implementing or enforcing Sections 3(c), 5(a)-(c),
14
and 5(e) of the Executive Order, including at all United States borders, ports of entry, and
15
in the issuance of visas, pending further orders from this Court; and
16
17
c.
Award such other relief as the Court deems appropriate and just.
DATED: February
, 2017.
18
Respectfully submitted,
19
ELLEN F. ROSENBLUM
Attorney General
20
21
22
SCOTT J. KAPLAN, WSBA #49377
Senior Assistant Attorney General
Oregon Department of Justice
100 SW Market Street
Portland, OR 97201
971-673-1880
Email: scott.kaplan@doj.state.or.us
Of Attorneys for Intervenor-Plaintiff
23
24
25
26
INTERVENOR-PLAINTIFF'S PROPOSED COMPLAINT IN
INTERVENTION FOR DECLARATORY AND INJUNCTIVE
RELIEF (2:17-cv-00141-JLR)
SK/rh2/8063034-v2
Page 20
OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Exhibit 1 to State of Oregon's Motion to Intervene, Page 20 of 20
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