Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 1 of 23 PageID# 36 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division TAREQ AQEL MOHAMMED AZIZ and AMMAR AQEL MOHAMMED AZIZ, by their next friend, AQEL MUHAMMAD AZIZ, Case No. 1:17-cv-116 and JOHN DOES 1-60, on behalf of themselves and others similarly situated, Date: January 30, 2017 Petitioners, v. DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; WAYNE BIONDI, Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles, and EIGHT UNNAMED CBP AGENTS AT DULLES AIRPORT, Respondents. FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS AND CLASS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 2 of 23 PageID# 37 INTRODUCTION 1. Pursuant to an Executive Order signed by President Donald Trump on January 27, 2016, the U.S. government banned entry into the United States by all non-citizens from seven listed countries, subject to an undefined waiver process. This ban, when first promulgated, included individuals on immigrant visas and returning lawful permanent residents. 2. The Immigration and Nationality Act provides no way to legally effectuate such a ban against this category of immigrants. As a result, upon information and belief, Department of Homeland Security officials have been effectuating the ban by bullying these arriving immigrants into “voluntarily” relinquishing their claims to lawful permanent residence into the United States. 3. On information and belief, respondents (through their agents and employees) lied to immigrants arriving after the Executive Order was signed, falsely telling them that if they did not sign a relinquishment of their legal rights, they would be formally ordered removed from the United States, which would bring legal consequences including a five-year bar for reentry to the United States. Because respondents knew that there was no valid, legal basis to remove these individuals from the United States, these were material, false representations. 4. Throughout this time, respondents denied arriving immigrants access to legal counsel. 5. On information and belief, these acts occurred nationwide, including but not limited to Washington-Dulles International Airport. During the first 24 to 48 hours that the ban was in place, Customs & Border Protection reports that it denied entry to at least 109 individuals. Many of these individuals were unlawfully compelled to “voluntarily” renounce their U.S. immigration status. 2 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 3 of 23 PageID# 38 6. Petitioners Tareq Aqel Mohammed Aziz (Tareq) and Ammar Aqel Mohammed Aziz (Ammar) are two brothers of Yemeni nationality, who were granted immediate relative immigrant visas (IR2 category) by virtue of their status as immediate relatives of their father, a US citizen. 7. On the morning of January 28, 2017, they landed in Washington-Dulles International Airport (IAD). This was a moment that they and their father had waited for and dreamed of for many years. But their dream quickly and inexplicably converted into a nightmare: instead of being permitted to transit to their connecting flight, Tareq and Ammar were handcuffed, detained, forced to sign papers that they neither read nor understood, and then placed onto a return flight to Ethiopia just two and a half hours after their landing. 8. During the brief time Tareq and Ammar were in the United States, employees or agents of respondents coerced Tareq and Ammar to sign U.S. Citizenship and Immigration Services Form I-407, which is entitled “Record of Abandonment of Lawful Permanent Resident Status.” The immigrant visas that they had fought so long and hard to obtain were thereupon cancelled – and, to add insult to injury, this was falsely claimed to be a result of their voluntary request. See https://www.uscis.gov/i-407 (“Use Form I-407 to let us know that you have decided voluntarily to abandon your status as a lawful permanent resident of the United States. We will then update your records to show that you are no longer an LPR.”). 9. Tareq and Ammar signed these papers because agents or employees of respondents misrepresented that, if they failed to sign them, that they would be ineligible for entry to the United States for a period of at least five years. That representation was not true. 10. Tareq and Ammar are currently in Addis Ababa Bole International Airport, where they remain in limbo. They do not want to return to Yemen, which is currently in a state of civil 3 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 4 of 23 PageID# 39 war. They are thus constructively in the custody of the United States. Tareq and Ammar wish to return to the United States, to reside with their father. 11. What happened to Tareq and Ammar is illustrative of what happened to dozens— if not hundreds—of LPRs and immigrant visa holders throughout the country on January 27 and 28, 2017. In these circumstances described above, any relinquishment of rights via a form I-407 was not voluntary, knowing, or freely given. Instead, it was the direct product of respondents’ agents’ misrepresentations as to what would occur if these individuals refused to sign. On information and belief, similarly-situated individuals who did not sign I-407s were ultimately admitted into the United States—thus demonstrating the falsity of the representations of respondents’ agents. JURISDICTION AND VENUE 12. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1361, 2241, 2243, and the Habeas Corpus Suspension Clause of the U.S. Constitution. This court has further remedial authority pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. 13. Venue properly lies within the Eastern District of Virginia, Alexandria Division because a substantial part of the events or omissions giving rise to this action occurred in the District. 28 U.S.C. § 1391(b). 14. No petition for habeas corpus has previously been filed in any court to review petitioners’ cases. PARTIES 15. Petitioner Tareq Aqel Mohammed Aziz is a 21-year-old citizen and national of Yemen. He was granted an immigrant visa (IR2 category) by the US Embassy in Djibouti, by virtue of being an immediate relative of a US citizen. He is a Muslim. 4 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 5 of 23 PageID# 40 16. Petitioner Ammar Aqel Mohammed Aziz, is a 19-year-old citizen and national of Yemen. He was granted an immigrant visa (IR2 category) by the US Embassy in Djibouti, by virtue of being an immediate relative of a US citizen. He is a Muslim. 17. Aqel Muhammad Aziz is a US citizen. He is a resident of Flint, Michigan. He is a Muslim. 18. Petitioners JOHN DOES 1-60 are approximately 60 lawful permanent residents of the United States, or immigrant visa holders, all nationals of Syria, Libya, Iran, Iraq, Somalia, Yemen or Sudan, who landed at Dulles Airport on January 27 and/or 28, 2017. Upon information and belief, some of these John Does were, like Tareq and Ammar, unlawfully forced to withdraw their applications for admission by means of being compelled into signing I-407 forms against their will and without their knowledge or consent, and placed on planes headed to foreign countries.1 19. The U.S. Department of Homeland Security (“DHS”) is a cabinet department of the United States federal government with the primary mission of securing the United States. 20. U.S. Customs and Border Protection (“CBP”) is an agency within DHS with the primary mission of detecting and preventing the unlawful entry of persons and goods into the United States. 21. Respondent John Kelly is the Secretary of DHS. Secretary Kelly has immediate or constructive custody of Petitioners and other members of the proposed class. He is sued in his official capacity. 1 Petitioners anticipate seeking leave to file amended pleadings as further John Does are identified. 5 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 6 of 23 PageID# 41 22. Respondent Kevin K. McAleenan is the Acting Commissioner of CBP. Acting Commissioner McAleenan has immediate or constructive custody of petitioners and other members of the proposed class. He is sued in his official capacity. 23. Respondent Wayne Biondi is the Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles, which has immediate or constructive custody of petitioners. He is sued in his official capacity. 24. Respondent Donald Trump is the President of the United States. He is sued in his official capacity. 25. Respondents Eight Unnamed CBP Agents at Dulles Airport are employees of CBP, acting at all times in their official capacity and under the direct and specific orders of Messrs. Kelly, McAleenan, and Trump. They are sued in their official capacity. STATEMENT OF FACTS President Trump’s January 27, 2017 Executive Order 26. On January 20, 2017, Donald Trump was inaugurated as the forty-fifth President of the United States. Throughout his campaign, he made repeated and specific promises to enact a “Muslim ban” once elected. 27. One week later, on January 27, at about 4:30pm, President Trump signed an executive order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States,” which is attached hereto as Exhibit A and is hereinafter referred to as the “EO.” 28. Citing the threat of terrorism committed by foreign nationals, the EO directs a variety of changes to the manner and extent to which non-citizens may seek and obtain admission to the United States, particularly (although not exclusively) as refugees. 6 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 7 of 23 PageID# 42 29. Most relevant to the instant action is Section 3(c) of the EO, in which President Trump proclaims “that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States,” and that he is therefore “suspend[ing] entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order,” with narrow exceptions not relevant here. (Emphasis added.) 30. There are seven countries that fit the criteria in 8 U.S.C. § 1187(a)(12): Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. According to the terms of the EO, therefore, the “entry into the United States” of non-citizens from those countries is “suspended” from 90 days from the date of the EO. 31. Consistent with its terms, the EO was at first applied to all noncitizens from the listed countries, regardless of immigration status. Only on the afternoon of January 29, 2016, did Respondent Kelly publish a memorandum stating that the EO would henceforth generally not be applied to returning lawful permanent residents (LPRs). However, a DHS Fact Sheet clarified that this exception did not apply to first-time entrants on immigrant visas. See Exh. C at p.2 (“Importantly, however, lawful permanent residents of the United States traveling on a valid I-551 will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate.” (Emphasis added.)). As of the date of filing this pleading, the EO is still being applied to bar the entry of first-time entrants on immigrant visas. Tareq and Ammar 32. After performing standard administrative processing and security check procedures, the federal government deemed both Tareq and Ammar to be admissible to the United States as immigrants. 7 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 8 of 23 PageID# 43 33. Both individuals were therefore issued valid U.S. immigrant visas, category IR2, by the U.S. Embassy in Djibouti. In order to obtain these visas, they passed rigorous background checks, and the Embassy determined they were not inadmissible for any reason under law. They obtained these visas by virtue of their status as immediate relatives of their father, who is a US citizen. (Neither they nor their father committed fraud or material misrepresentations at any point during the visa process.) 34. Excited that they would finally be reunited as a family, Tareq and Ammar then traveled from Djibouti to Addis Ababa, Ethiopia, from where they departed on a flight to Washington-Dulles International Airport (“IAD”). The flight departed Ethiopia about two hours before President Trump signed and promulgated the EO. The flight made a stop in Dublin, Ireland, and then landed at IAD at around 8:00am on Saturday, January 28. While in the air, they had no idea that the EO even existed. 35. Tareq and Ammar intended to be admitted into and enter the United States on their valid IR2 visas, whereupon they would become lawful permanent residents (LPRs), and then continue on to Michigan where their father was awaiting them. 36. Upon deplaning, officers or agents of respondents handcuffed Tareq and Ammar. 37. Officers or agents of respondents fingerprinted and photographed them. Officers or agents of respondents also seized Tareq and Ammar’s immigration paperwork, including a packet of documents necessary to obtain entry into the United States in LPR status. That material was never returned to Tareq and Ammar. 38. Tareq and Ammar were forced to wait for approximately an hour until employees or agents of respondents returned. Tareq overheard that his visa had been canceled. 8 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 9 of 23 PageID# 44 39. An employee or agent of respondents presented the brothers with documents to sign. Tareq stated that he did not understand the documents. The employees or agents stated that “our country will discuss this problem with your country.” Upon information and belief, these officers or agents compelled Tareq and Ammar to sign U.S. Citizenship and Immigration Services Form I-407, which is entitled “Record of Abandonment of Lawful Permanent Resident Status.” See https://www.uscis.gov/i-407. 40. Tareq and Ammar were at the time shocked and bewildered. They did not understand the documents presented to them. They were not informed of the legal consequences of those documents. They were not offered the opportunity to consult with legal counsel. 41. An employee or agent of respondents falsely informed Tareq and Ammar that, if they did not sign the documents, they would be sent to Yemen and that they would be barred from returning to the United States for five years. 42. It therefore appears that an employee or agent of respondents represented to Tareq and Ammar that, if they declined to sign an I-407, they would be officially removed from the United States and thus subject to an entrance bar of five years. This statement was highly material in these circumstances and it was plainly false. Respondents possessed no legal right to remove Tareq and Ammar from the United States. 43. In light of this significant pressure exerted by employees or agents of respondents, Tareq and Ammar felt that they had no choice other than to sign the documents. They were fearful that if they did not sign the documents, that they would be indefinitely detained or that they would be barred from entering the United States for a lengthy period of time. Tareq and Ammar did not understand any of the consequences of signing the documents. 9 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 10 of 23 PageID# 45 44. Tareq and Ammar were not permitted to keep copies of the documents that they were compelled and coerced into signing. No copies of those documents have been provided. 45. CBP agents then stamped “Cancelled” over Tareq and Ammar’s IR2 immigrant 46. Subsequently, attorneys for the respondents have suggested that Tareq and Ammar visas. “voluntarily” relinquished their rights as immigrant visa holders. Tareq and Ammar deny that their conduct in signing any documents at Dulles airport was voluntary. They made neither a free choice nor an informed choice. 47. The reason that CBP agents compelled Tareq and Ammar to sign I-407 documents, is that, because the brothers were not subject to expedited removal, nor inadmissible, there was no other legal mechanism to bar Tareq and Ammar from entering the United States and becoming lawful permanent residents thereof. See generally 8 U.S.C. § 1225(b). Yet, they were under specific orders from respondents to bar admission of individuals in Tareq and Ammar’s situation. Accordingly, respondents’ agents engaged in this illegal scheme. 48. Tareq and Ammar were then compelled to purchase tickets—at their own expense—on the next flight to Addis Ababa, Ethiopia. 49. Tareq and Ammar departed Dulles on an Ethiopian Airlines flight on the morning of Saturday, January 28, about two and a half hours after landing at Dulles Airport. 50. Since arriving in Ethiopia, Tareq and Ammar have been in limbo at the Addis Ababa Bole International Airport. Their passports have been confiscated by Ethiopian Airlines authorities. 10 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 11 of 23 PageID# 46 51. Tareq and Ammar do not wish to return to Yemen, which is currently in a state of civil war. They wish to return to the United States, to live with their father in Flint, Michigan, pursuant to the immigrant visa properly granted by the U.S. government. John Does 1-60. 52. Petitioners John Does 1-60 are approximately 50-60 returning lawful permanent residents, or individuals traveling on valid immigrant visas entitling them to be admitted into the United States in lawful permanent resident status. Most of these were individuals returning from trips abroad, all of whom are nationals of one of the following seven countries: Lybia, Iraq, Iran, Yemen, Syria, Sudan, Somalia. All were held for some time, during January 27 or 28, 2017, in the international arrivals area of Dulles Airport. 53. Upon information and belief, many of petitioner John Does 1-60 were, like Tareq and Ammar, forced to withdraw their applications for admission to the United States by means of being compelled against their will and without knowledge or consent to sign forms I-407, and then placed on planes headed to foreign destinations. See, e.g., http://jezebel.com/woman-and-her-2children-held-at-dulles-airport-for-20-1791762183 (describing how a Somali woman entering the United States on an immigrant visa together with her U.S.-citizen children “was pressured to sign papers and told that her visa had been canceled. When she refused to sign, asking to wait until her husband arrived, immigration officers threatened that she would not be permitted to return to the United States. She was then told to sign her children’s paperwork so that they could accompany her back to Africa. . . . ‘They handcuffed her, even when she went to the bathroom[.]’”). 54. Discovery will reveal the full identifies of these individuals. Counsel is meanwhile working diligently to uncover the identities of John Does 1-60. Petitioners’ claim to lawful admission to the United States as immigrants 11 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 12 of 23 PageID# 47 55. No grounds of inadmissibility under the Immigration and Nationality Act applies to either Tareq or Ammar, nor are they subject to expedited removal for any reason, nor is there any reason under Title 8 of U.S. Code or Title 8 of the Code of Federal Regulations to bar them from entering the United States as immigrants and thereby lawful permanent residents. 56. Congress has provided that immigrants in petitioners’ situation are entitled to enter the United States, and that if the government disagrees, it must institute regular removal proceedings before an immigration judge. 8 U.S.C. § 1225(b). The only exceptions to that rule (for example, criminals, stowaways, fraud, or individuals arriving without valid documentation) do not apply here. 57. The government considers that Tareq and Ammar “withdrew their application for admission” and then voluntarily departed. That is, as a matter of fact, false. The jurisdictional bars of 8 U.S.C. § 1252 therefore do not apply. The Court’s issuance of a Temporary Restraining Order. 58. On January 28, 2017, at approximately 9:30pm ET, this Court granted a TRO. It provided: “a) respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International airport; b) respondents are forbidden from removing petitioners— lawful permanent residents at Dulles International Airport—for a period of 7 days from the issuance of this Order.”2 The government can be expected to argue that Tareq and Ammar were not in fact “lawful permanent residents” as they were never admitted on their immigrant visas. As set forth herein, it makes no material difference to the legal analysis: they were entitled to be admitted; or, failing that, to be placed in regular removal proceedings before an immigration judge. 2 12 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 13 of 23 PageID# 48 59. At the time the TRO issued, unbeknownst to counsel or to their father (or anyone else outside of CBP), respondents had already placed Tareq and Ammar on a plane departing the country, and they were in flight.3 60. At the time the TRO issued, at least some JOHN DOES 1-60 were held in secure areas at Dulles, including in secondary screening. 61. On the evening of Saturday, January 28, 2017, following the issuance of the Court’s TRO, CBP personnel refused to permit any lawyers access to LPRs subject to the new screening provisions established by the Executive Order. 62. CBP personnel indicated that it would not comply with the order unless it was served via “official channels.” 63. CBP personnel also indicated that the Court’s order was limited to LPRs in “detention,” but asserted that individuals at Dulles were not in “detention.” They claimed that the TRO did not apply because individuals are instead subject to “processing.” 64. Notwithstanding the assertions of CBP personnel, petitioners were not free to leave CBP custody. Additionally, the INS Insp. Field Manual provides, at Section 17.8, that “During an inspection at a port-of-entry, detention begins when the applicant is referred into secondary and waits for processing.” 65. the TRO The refusal of respondents’ agents to comply with the counsel-access provisions of are by now well documented. 3 See http://www.thedailybeast.com/articles/ Counsel was not aware of this fact because, despite repeated inquiries by telephone and in person, CBP personnel refused to advise counsel as to any facts regarding the brothers’ case. Likewise, their father was unaware of this fact because, at no time during their two-and-a-half hours in CBP custody were they allowed to make any telephone calls or otherwise advise anyone in the outside world as to what was happening to them. 13 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 14 of 23 PageID# 49 2017/01/29/trump-s-border-patrol-defies-judge-u-s-senator-at-dulles-airport-at-his-firstconstitutional-crisis-unfolds.html. 66. U.S. Senator Cory Booker arrived at Dulles airport on the evening of Saturday, January 28, 2017. Respondents’ agents continued to refuse compliance. Holding a copy of this Court’s TRO, Senator Booker stated that “I am now of the belief that though this was issued by the judicial branch, that it was violated tonight.” Id. 67. Senator Booker has submitted affidavit regarding his time at Dulles, attached hereto as Exh. B. In it, he states: Prior to my arrival at IAD, a CBP employee who was not present at IAD communicated to my staff member, upon receiving the TRO, that “individuals are not entitled to counsel during immigration processing at a port of arrival.” When my staff member challenged their assertion in light of the TRO, they responded that “The lawyers are looking at the order.” Upon arrival, I met with Metropolitan Washington Airports Authority (MWAA) police in an effort to obtain compliance with a Temporary Restraining Order (TRO) from the Eastern District of Virginia (E.D. Va.) and a nationwide stay issued by the Eastern District of New York (E.D.N.Y.). At my request, the TRO was presented by the MWAA police officer to CBP officials on site. I did not speak directly with Customs and Border Protection (CBP) or any other representative of the Department of Homeland Security (DHS). 68. In the late afternoon of January 29, 2017—approximately 16 hours after the Court issued the TRO—counsel for respondents confirmed that respondents would provide notice of the Court’s order to arriving LPRs subject to screenings pursuant to the Executive Order. But respondents refused to permit in-person access to lawyers. Likewise, respondents refused to provide specialized telephone numbers to arriving LPRs, instead providing only generic materials listing the names and phone numbers for 10 different immigration non-profits in the Washington DC metro-area – nine of which respondents knew had no interest in or ability to provide legal 14 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 15 of 23 PageID# 50 advice to this particular population (and indeed were not even open and available to take calls on a Sunday). See https://www.justice.gov/eoir/file-/ProBonoVA/download. 69. Throughout this time, at all times, more than 25 lawyers were present at Dulles Airport in the international arrivals area, ready and willing to offer free, pro-bono legal services to the JOHN DOES. 70. Had Tareq, Ammar, and the JOHN DOES been properly advised of their legal rights and the legal consequences of signing an I-407, they would not have done so. Representative Allegations 71. In addition to Petitioners, there are there are numerous other individuals with legal permanent resident status or who are traveling on valid U.S. immigrant visas who have been or will be either detained and/or coerced into signing a Form I-407. Each of these similarly situated individuals is entitled to bring a petition for a writ of habeas corpus or, in the alternative, a complaint for declaratory and injunctive relief, to prohibit respondents’ policy, pattern, and practice of prohibiting class members from entering the United States when they arrive at U.S. borders with valid entry documents and coercing the relinquishment of rights. These similarly situated individuals satisfy the numerosity, typicality, commonality, adequacy of representation requirements established by Fed. R. Civ. P. 23. Petitioners therefore will move this Court for an order certifying a representative class of Petitioners consisting of all individuals with legal permanent resident status or traveling on valid U.S. immigrant visas, who are from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, legally authorized to enter the United States, and who have been or will be denied entry to the United States on the basis of the January 27, 2017 Executive Order. 15 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 16 of 23 PageID# 51 CAUSES OF ACTION COUNT ONE FIFTH AMENDMENT – PROCEDURAL AND SUBSTANTIVE DUE PROCESS DENIAL OF RIGHT TO ENTER UNITED STATES 72. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 73. Respondents have infringed petitioners’ procedural and substantive due process rights in multiple respects. 74. To begin with, petitioners have a due process interest in the statutory rights granted by Congress; that is, “[m]inimum due process rights attach to statutory rights.” Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (alteration in original) (quoting Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996)). 75. U.S. law, including federal statutes and regulations, obligate the United States to allow LPRs and immigrant visa holders admission into the United States, unless those individuals are for some reason inadmissible. In denying petitioners admission to the United States, respondents violated petitioners’ procedural and substantive due process rights. 76. One of the procedural due process rights denied petitioners was access to legal counsel, to their specific and material injury. Respondents prohibited petitioners from conferring with attorneys who were present on the scene and willing to advise and represent them on a pro bono basis. 77. Further, the grant of the immigrant visas to petitioners, such as the IR2 visas to Tareq and Ammar, created an entitlement to the lawful permanent resident status and subsequent provision of a “green card.” These entitlements were revoked without due process of law. 16 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 17 of 23 PageID# 52 78. Likewise, the conduct of respondents has amounted to an illegal retroactive revocation of the immigration status previously extended by the U.S. government. See Estrada v. Holder, 604 F.3d 402, 406 (7th Cir. 2010); Sharkey v. Quarantillo, 541 F.3d 75, 86, 93 (2d Cir. 2008); United States v. Figueroa-Burruel, No. CR 10-3738-TUC-RCC, 2011 WL 6100288, at *9 (D. Ariz. Oct. 11, 2011), report and recommendation adopted sub nom. United States v. Burruel, No. CR 10-3738-TUC-RCC, 2011 WL 6099355 (D. Ariz. Dec. 8, 2011). The retroactive retraction of this status is an unlawful action in violation of due process rights. 79. The actions of respondents—as well as respondents’ employees and agents— coerced or compelled Tareq and Ammar to withdraw their applications for admission against their will. These were neither freely made nor knowing and informed decisions. The conduct of respondents, and their employees and agents, thus violated petitioners’ procedural and substantive due process rights. COUNT TWO THE IMMIGRATION AND NATIONALITY ACT 80. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 81. The Immigration and Nationality Act and implementing regulations entitle Tareq, Amar, and John Does 1-50 to enter the United States as immigrants or LPRs. 82. Respondents’ actions in sending Tareq and Ammar to Yemen, and John Does 1-50 to various foreign countries, deprive petitioners of their statutory and regulatory rights. 83. In particular, because petitioners have valid and/or approved immigrant visas or lawful permanent resident status, denial of admission into the United States violates 8 U.S.C. §§ 1151, 1201, 1225, and accompanying regulations. 17 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 18 of 23 PageID# 53 COUNT THREE THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. § 1152 84. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 85. Respondents’ actions in sending Tareq and Ammar to Yemen, and John Does 1-50 to various foreign countries, also violates 8 U.S.C. § 1152 and accompanying regulations. This statute prohibits discrimination against individuals on the basis of nationality, without sufficient justification. COUNT FOUR FIRST AMENDMENT – ESTABLISHMENT CLAUSE 86. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 87. Tareq, Ammar, and John Does 1-50 were denied entry to the United States or forced to withdraw their applications for admission to the United States and/or abandon their status as lawful permanent residents as a result of the EO. 88. The EO exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity. The EO therefore violates the Establishment Clause of the First Amendment by not pursuing a course of neutrality with regard to different religious faiths. COUNT FIVE FIFTH AMENDMENT – EQUAL PROTECTION 89. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 18 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 19 of 23 PageID# 54 90. The EO discriminates against petitioners on the basis of their countries of origin and religion, without sufficient justification, and therefore violates the equal protection component of the Due Process Clause of the Fifth Amendment. 91. Additionally, the EO was substantially motivated by animus toward—and has a disparate effect on—Muslims, which also violates the equal protection component of the Due Process Clause of the Fifth Amendment. Jana-Rock Const., Inc. v. N.Y. State Dep’t of Econ. Dev., 438 F.3d 195, 204 (2d Cir. 2006); Hunter v. Underwood, 471 U.S. 222 (1985). 92. Respondents have demonstrated an intent to discriminate against petitioners on the basis of religion through repeated public statements that make clear the EO was designed to prohibit the entry of Muslims to the United States. See Michael D. Shear & Helene Cooper, Trump Bars Refugees and Citizens of 7 Muslim Countries, N.Y. Times (Jan. 27, 2017), (“[President Trump] ordered that Christians and others from minority religions be granted priority over Muslims.”); Carol Morello, Trump Signs Order Temporarily Halting Admission of Refugees, Promises Priority for Christians, Wash. Post (Jan. 27, 2017). 93. Applying a general law in a fashion that discriminates on the basis of religion in this way violates petitioners’ rights to equal protection the Fifth Amendment Due Process Clause. Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). Petitioners satisfy the Supreme Court’s test to determine whether a facially neutral law—in this case, the EO and federal immigration law—has been applied in a discriminatory fashion. The Supreme Court requires an individual bringing suit to challenge the application of a law to bear the burden of demonstrating a “prima facie case of discriminatory purpose.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-7 (1977). This test examines the impact of the official action, whether there has been a clear pattern unexplainable on other grounds 19 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 20 of 23 PageID# 55 besides discrimination, the historical background of the decision, the specific sequence of events leading up to the challenged decision, and departures from the normal procedural sequence. Id. 94. Here, President Donald Trump and senior staff have made clear that EO will be applied to primarily exclude individuals on the basis of their national origin and being Muslim. See, e.g., sources cited, supra ¶ 48, See, e.g., Donald J. Trump, Donald J. Trump Statement On Preventing Muslim Immigration, (Dec. 7, 2015), https://www.donaldjtrump.com/pressreleases/donald-j.-trump-statement-on-preventing-muslim-immigration (“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.”); Abby Phillip and Abigail Hauslohner, Trump on the Future of Proposed Muslim Ban, Registry: ‘You know my plans’, Wash. Post (Dec. 22, 2016). Further, the President has promised that preferential treatment will be given to Christians, unequivocally demonstrating the special preferences and discriminatory impact that the EO has upon Petitioners. See sources cited, supra. 95. Thus, Respondents have applied the EO with forbidden animus and discriminatory intent in violation of the equal protection of the Fifth Amendment and violated petitioners’ equal protection rights. COUNT SIX ADMINISTRATIVE PROCEDURE ACT 96. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 97. Respondents detained and mistreated petitioners solely pursuant to an executive order issued on January 27 and 28, 2017, which expressly discriminates against Petitioners on the basis of their countries of origin and was substantially motivated by animus toward Muslims.. 20 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 21 of 23 PageID# 56 98. The EO exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity. 99. The INA forbids discrimination in issuance of visas based on a person’s race, nationality, place of birth, or place of residence. 8 U.S.C. § 1152(a)(1)(A). 100. The INA and implementing regulations entitle Petitioners to enter the United States as LPRs. 101. Respondents’ actions in detaining and mistreating Petitioners were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of APA § 706(2)(A); contrary to constitutional right, power, privilege, or immunity, in violation of APA § 706(2)(B); in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, in violation of APA § 706(2)(C); and without observance of procedure required by law, in violation of § 706(2)(D). COUNT SEVEN RELIGIOUS FREEDOM RESTORATION ACT 102. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 103. The EO will have the effect of imposing a special disability on the basis of religious views or religious status, by withdrawing an important immigration benefit principally from Muslims on account of their religion. In doing so, the EO places a substantial burden on petitioners’ exercise of religion in a way that is not the least restrictive means of furthering a compelling governmental interest. 104. Respondents’ actions constitute a violation of the Religious Freedom Restoration Act. See 42 U.S.C. § 2000bb-1 et seq. 21 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 22 of 23 PageID# 57 PRAYER FOR RELIEF WHEREFORE, Petitioners pray that this Court grant the following relief: (1) To the extent that any petitioners remain in custody of respondents, issue a Writ of Habeas Corpus requiring respondents to release petitioners forthwith; (2) Issue an injunction ordering respondents not to detain any petitioners, including but not limited to the John Doe petitioners, and anyone similarly situated, solely on the basis of the EO, or deny any petitioners admission to the United States solely on the basis of the EO; (3) Enter a judgment declaring that respondents’ detention of petitioners is and will be unauthorized by statute and contrary to law; (4) Issue an injunction ordering respondents to invalidate the improperly coerced I-407 forms, reinstate the petitioners’ immigrant visas and/or LPR status, return the petitioners to Dulles Airport, and admit them into the United States, subject to the laws and regulations existing prior to January 27, 2017; (6) Award petitioners their costs and reasonable attorney’s fees; and (7) Grant any other and further relief that this Court may deem fit and proper. Petitioners/plaintiffs demand a jury trial on all issues and claims so triable. [Remainder of page intentionally left blank.] 22 Case 1:17-cv-00116-LMB-TCB Document 7 Filed 01/30/17 Page 23 of 23 PageID# 58 Respectfully submitted, _______//s//___________________________ Simon Y. Sandoval-Moshenberg (VA 77110) Mary Bauer (VA 31388) Rebecca Wolozin (VA 89690) Elaine Poon (pro hac vice motion forthcoming) LEGAL AID JUSTICE CENTER 6066 Leesburg Pike #520 Falls Church, VA 22041 (703) 720-5605 simon@justice4all.org mary@justice4all.org becky@justice4all.org elaine@justice4all.org Andrew J. Pincus (pro hac vice motion forthcoming) Paul W. Hughes (pro hac vice motion filed) MAYER BROWN LLP 1999 K Street, N.W. Washington, D.C. 20006 (202) 263-2000 apincus@mayerbrown.com phughes@mayerbrown.com 23 Date: 1/30/2017 Case 1:17-cv-00116-LMB-TCB Document 7-1 Filed 01/30/17 Page 1 of 9 PageID# 59 THE WHITE HOUSE Office of the Press Secretary For Immediate Release January 27, 2017 EXECUTIVE ORDER - - - - - - PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows: Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States. Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa- Case 1:17-cv-00116-LMB-TCB Document 7-1 Filed 01/30/17 Page 2 of 9 PageID# 60 issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism. In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation. Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes. Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat. (b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security's determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence. (c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and Case 1:17-cv-00116-LMB-TCB Document 7-1 Filed 01/30/17 Page 3 of 9 PageID# 61 maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas). (d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification. (e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs. (f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment. (g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked. Case 1:17-cv-00116-LMB-TCB Document 7-1 Filed 01/30/17 Page 4 of 9 PageID# 62 (h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order. Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant's likelihood of becoming a positively contributing member of society and the applicant's ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States. (b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date of this order. Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat Case 1:17-cv-00116-LMB-TCB Document 7-1 Filed 01/30/17 Page 5 of 9 PageID# 63 to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States. (b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization. (c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest. (d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest. (e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest -- including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United Case 1:17-cv-00116-LMB-TCB Document 7-1 Filed 01/30/17 Page 6 of 9 PageID# 64 States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship -- and it would not pose a risk to the security or welfare of the United States. (f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order. (g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement. Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda. Sec. 7. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entryexit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States. (b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section. The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order. Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational. Case 1:17-cv-00116-LMB-TCB Document 7-1 Filed 01/30/17 Page 7 of 9 PageID# 65 Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions. (b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly affected. Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by the foreign country, to the extent practicable. Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter: (i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorismrelated organization, or any other national security Case 1:17-cv-00116-LMB-TCB Document 7-1 Filed 01/30/17 Page 8 of 9 PageID# 66 reasons since the date of this order or the last reporting period, whichever is later; (ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period, whichever is later; and (iii) information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later; and (iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, including information on the immigration status of foreign nationals charged with major offenses. (b) The Secretary of State shall, within one year of the date of this order, provide a report on the estimated long-term costs of the USRAP at the Federal, State, and local levels. Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Case 1:17-cv-00116-LMB-TCB Document 7-1 Filed 01/30/17 Page 9 of 9 PageID# 67 DONALD J. TRUMP THE WHITE HOUSE, January 27, 2017. # # # '4 g-ww" Case Document 7-2 Filed 01/30/17 Page 1 of 1 Page D# 68 AFFIDAVIT 1. United States Senator ory A. Booker, attest that to the best of my knowledge. information, and belief. that the following facts are true and correct. 1. On Saturday. January 28. 2017. I went to Washington Dulles International Airport (IAD) in the evening to inquire as to the status of individuals who were allegedly being detained pursuant to the January 27, 2017 Executive Order. Prior to my arrival at IAD. a BP employee who was not present at IAD communicated to my staff member. upon receiving the TRO. that "individuals are not entitled to counsel during immigration processing at a port of arrival." When my staff member challenged their assertion in light of the TRO, they responded that ?The lawyers are looking at the order." . Upon arrival. 1 met with Metropolitan Washington Airports Authority (MWAA) police in an effort to obtain compliance with a Temporary Restraining Order (TRO) from the Eastern District of Virginia (ED. Va.) and a nationwide stay issued by the Eastern District of New York (E.D.N.Y.). At my request, the TRO was presented by the MWAA police of?cer to CBP of?cials on site. I did not speak directly with Customs and Border Protection (CBP) or any other representative of the Department of Homeland Security (DHS). Lu 4. Acting as the intermediary for CBP, an unnamed individual for MWAA police con?rmed that travelers were being detained and stated that CBP would release the remaining individuals being held, but did not elaborate further on what actions would be taken after January 28, 2017. I .8. Senator Cory A. Booker SUBSCRIBED AND SWORN TO, before me, the undersigned notary public, this day of January, 2017. My Cormnission Expires: Case 1:17-cv-00116-LMB-TCB Document 7-3 Filed 01/30/17 Page 1 of 3 PageID# 69 Press Office U.S. Department of Homeland Security FACT SHEET January 29, 2017 Contact: DHS Press Office, 202-282-8010   FACT SHEET: Protecting the Nation from Foreign Terrorist Entry to the United States WASHINGTON - The executive order signed on January 27, 2017, allows for the proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals. The United States has the world’s most generous immigration system, yet it has been repeatedly exploited by terrorists and other malicious actors who seek to do us harm. In order to ensure that the United States government can conduct a thorough and comprehensive analysis of the national security risks posed from our immigration system, it imposes a 90-day suspension on entry to the United States of nationals of certain designated countries—countries that were designated by Congress and the Obama Administration as posing national security risks in the Visa Waiver Program. In order to protect Americans, and to advance the national interest, the United States must ensure that those entering this country will not harm the American people subsequent to their entry, and that they do not bear malicious intent toward the United States and its people. The executive order protects the United States from countries compromised by terrorism and ensures a more rigorous vetting process. This Executive Order ensures that we have a functional immigration system that safeguards our national security. This executive order, as well as the two issued earlier in the week, provide the Department with additional resources, tools and personnel to carry out the critical work of securing our borders, enforcing the immigration laws of our nation, and ensuring that individuals who pose a threat to national security or public safety cannot enter or remain in our country. Protecting the American people is the highest priority of our government and this Department. The Department of Homeland Security will faithfully execute the immigration laws and the President’s executive order, and we will treat all of those we encounter humanely and with professionalism. Case 1:17-cv-00116-LMB-TCB Document 7-3 Filed 01/30/17 Page 2 of 3 PageID# 70 Authorities The Congress provided the president of the United States, in section 212(f) of the Immigration and Nationality Act (INA), with the authority to suspend the entry of any class of aliens the president deems detrimental to the national interest. This authority has been exercised by nearly every president since President Carter, and has been a component of immigration laws since the enactment of the INA in 1952. Actions For the next 90 days, nearly all travelers, except U.S. citizens, traveling from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen will be temporarily suspended from entry to the United States. The 90 day period will allow for proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals. Importantly, however, lawful permanent residents of the United States traveling on a valid I-551 will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate. The entry of these individuals, subject to national security checks, is in the national interest. Therefore, we expect swift entry for these individuals. In the first 30 days, DHS will perform a global country-by-country review of the information each country provides when their citizens apply for a U.S. visa or immigration benefit. Countries will then have 60 days to comply with any requests from the U.S. government to update or improve the quality of the information they provide. DHS and the Department of State have the authority, on a case-by-case basis, to issue visas or allow the entry of nationals of these countries into the United States when it serves the national interest. These seven countries were designated by Congress and the Obama Administration as posing a significant enough security risk to warrant additional scrutiny in the visa waiver context. The Refugee Admissions Program will be temporarily suspended for the next 120 days while DHS and interagency partners review screening procedures to ensure refugees admitted in the future do not pose a security risk to citizens of the United States. The executive order does not prohibit entry of, or visa issuance to, travelers with diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas. The Department of Homeland Security along with the Department of State, the Office of the Director of National Intelligence, and the Federal Bureau of Investigation will develop uniform screening standards for all immigration programs government-wide. Upon resumption of the U.S. Refugee Admissions Program, refugee admissions to the United States will not exceed 50,000 for fiscal year 2017. Case 1:17-cv-00116-LMB-TCB Document 7-3 Filed 01/30/17 Page 3 of 3 PageID# 71 The Secretary of Homeland Security will expedite the completion and implementation of a biometric entry-exit tracking system of all travelers into the United States. Federal Government As part of a broader set of government actions, the Secretary of State will review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal. The Department of State will suspend the Visa Interview Waiver Program and ensure all individuals seeking nonimmigrant visas undergo an in-person interview. Transparency The Department of Homeland Security, in order to be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest will make information available to the public every 180 days. In coordination with the Department of Justice, DHS will provide information regarding the number of foreign nationals charged with terrorism-related offense or gender-based violence against women while in the United States.