Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 1 of 36 1 2 3 4 5 6 7 8 9 10 JULIA HARUMI MASS, SBN 189649 MICHAEL T. RISHER, SBN 191627 WILLIAM S. FREEMAN, SBN 82002 NOVELLA Y. COLEMAN, SBN 281632 CHRISTINE P. SUN, SBN 218701 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437 Email: jmass@aclunc.org Attorneys for Plaintiffs Hadil Al-Mowafak, Wasim Ghaleb and John Doe, on behalf of themselves and others similarly situated; ACLU of Northern California; Jewish Family & Community Services East Bay R. ADAM LAURIDSEN, SBN 243780 EDUARDO E. SANTACANA, SBN 281668 GRACE YANG, SBN 286635 IAN KANIG, SBN 295623 CHESSIE THACHER, SBN 296767 KEKER & VAN NEST LLP 633 Battery Street San Francisco, CA 94111 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 Attorneys for Plaintiffs Hadil Al-Mowafak, Wasim Ghaleb and John Doe, on behalf of themselves and others similarly situated; ACLU of Northern California; Jewish Family & Community Services East Bay 11 12 [SEE NEXT PAGE FOR ADDITIONAL COUNSEL] 13 UNITED STATES DISTRICT COURT 14 FOR THE NORTHERN DISTRICT OF CALIFORNIA 15 16 17 18 Hadil Al-Mowafak, Wasim Ghaleb and John Doe, on behalf of themselves and others similarly situated; ACLU of Northern California; Jewish Family & Community Services East Bay, Plaintiffs, 19 20 21 22 23 24 25 26 Civil Case No. ______________ CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF v. Donald Trump, President of the United States; U.S. Department of State; U.S. Department of Homeland Security; U.S. Customs and Border Protection; Rex W. Tillerson, Secretary of State; John Kelly, Secretary of U.S. Department of Homeland Security; Kevin McAleenan, Acting Commissioner of U.S. Customs and Border Patrol; Carrie Azurin, Field Director, San Francisco Field Office of U.S. Customs and Border Patrol, Defendants. 27 28 CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 2 of 36 1 2 3 4 AHILAN T. ARULANANTHAM, SBN 237841 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street Los Angeles, CA 90017 Telephone: (213) 977-5211 Facsimile: (213) 977-5297 Email: aarulanantham@aclu-sc.org 5 6 7 8 9 BARDIS VAKILI, SBN 247783 DAVID LOY, SBN 229235 ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 Telephone: (619) 232-2121 Facsimile: (619) 232-0036 Email: bvakili@aclusandiego.org 10 11 12 13 14 15 16 17 18 19 20 ANDRE SEGURA, SBN 247681 OMAR C. JADWAT* AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2618 Facsimile: (212) 549-2654 Email: asegura@aclu.org CECILLIA D. WANG, SBN 187782 JENNIFER CHANG NEWELL, SBN 233033 AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 Facsimile: (212) 395-0950 Email: cwang@aclu.org 21 *Pro Hac Vice Forthcoming 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 3 of 36 INTRODUCTION 1 2 3 4 1. On December 7, 2015, then-candidate Donald J. Trump issued a statement “calling for a total and complete shutdown of Muslims entering the United States.” Defendant Trump remained consistent on this position throughout his campaign for the presidency. 5 6 2. Following his election as President, Defendant Trump implemented his plan to ban 7 individuals on the basis of their religious beliefs: One week after he took office, on January 27, 8 2017, Defendant Trump issued an Executive Order (the “Executive Order”) completely 9 prohibiting for at least 90 days the entry or re-entry of all persons who are nationals of seven 10 11 predominantly Muslim countries—Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen (the 12 “Designated Countries”)—regardless of whether such persons hold valid visas or are lawful 13 permanent residents of the United States. 14 As one of Defendant Trump’s senior advisors confirmed the next day, the Executive Order is an attempt to institute the promised “Muslim ban.” 15 16 3. Also on January 27, 2017, the Deputy Assistant Secretary for Visa Services at the 17 Bureau of Consular Affairs of the Department of State, relying on the authority of the Executive 18 Order, summarily and provisionally revoked all valid nonimmigrant and immigrant visas of nationals 19 of the seven predominantly Muslim Countries, subject to exceptions not relevant here. This 20 21 revocation (“the Provisional Revocation Letter”) threatens countless nationals of the Designated 22 Countries who are currently in the United States or who reside in the United States but were 23 traveling abroad when the letter was issued. 24 4. The First Amendment does not allow the government to circumvent its protections 25 26 27 for religious freedom so easily. As the Supreme Court explained in striking down a law that targeted members of an unpopular religion, “[o]fficial action that targets religio[n] … cannot be shielded by 28 -1CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 4 of 36 1 mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects 2 against governmental hostility which is masked, as well as overt.” Church of the Lukumi Babalu 3 Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993). The Executive Order and the Provisional 4 Revocation Letter violate the First Amendment because they are thinly veiled attempts to 5 6 discriminate against Muslims by barring them from entry to the United States. 5. 7 8 9 The Immigration and Nationality Act (“INA”) ensures that the United States does not adopt certain discriminatory immigration policies. The INA prohibits preference or discrimination on the basis of “a person’s race, sex, nationality, place of birth or place of residence.” 8 U.S.C. 10 11 §1152(a)(1)(A). The Executive Order and the Provisional Revocation Letter contradict this statute 12 and instead would revoke visas and deny entry based on nothing but “nationality, place of birth or 13 place of residence.” 14 6. Plaintiffs include nationals of the Designated Countries who are or have been 15 16 lawfully present in California and who, but for the Executive Order and/or the Provisional 17 Revocation Letter, have the lawful right to travel to and from the United States. Plaintiffs also 18 include organizations that wish to hear from and associate with people barred from entering the 19 nation under the orders. Plaintiffs bring this action on behalf of themselves and other persons 20 21 similarly situated to challenge various provisions of the Executive Order and the Provisional 22 Revocation Letter that violate the First Amendment, the equal-protection and due process rights 23 granted under the Fifth Amendment, the Religious Freedom Restoration Act, 42 U.S.C. 24 § 2000bb-1 et seq., the Immigration and Nationality Act, 8 U.S.C. § 1101 et. seq, and the 25 26 27 Administrative Procedure Act. //// 28 -2CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 5 of 36 JURISDICTION AND VENUE 1 2 7. This Court has jurisdiction under 5 U. S. C. § 706 and 28 U.S.C. §§ 1331 and 3 4 5 6 7 1361, and has further remedial authority pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. 8. Venue properly lies within the Northern District of California under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to this action occurred 8 9 in the District. 10 INTRADISTRICT ASSIGNMENT 11 12 13 9. Pursuant to Civil L.R. 3-2(c), this case should be assigned to the San Francisco or Oakland Division of this Court because the action arises in San Francisco County. 14 PARTIES 15 16 17 18 10. Plaintiff Hadil Al-Mowafak is a Yemeni national who is currently in her freshman year at Stanford University in Palo Alto, California. She possesses a valid F-1 student visa and has continuously resided in the United States since September 17, 2016. As described below, 19 20 Plaintiff Al-Mowafak plans to travel to Yemen in the summer of 2017 to visit her husband, who 21 lives in Yemen. Because her husband does not have a United States visa, the only way that 22 Plaintiff Al-Mowafak can see her husband is if she travels to Yemen to visit him. 23 11. Plaintiff Wasim Ghaleb is a Yemeni national who is currently studying business 24 25 administration at Grossmont College in San Diego, California. Plaintiff Ghaleb possesses a valid 26 F-1 student visa and continuously resided in California from March 4, 2016 to January 15, 2017. 27 As described below, Plaintiff Ghaleb travelled to Saudi Arabia on January 15 to visit his family, 28 -3CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 6 of 36 1 2 3 4 fully intending to return to California two weeks later for the spring semester. Instead, he is now stuck outside the country because of the Executive Order. 12. Plaintiff John Doe is an Iranian national who is currently a Ph.D. candidate at University of California, Berkeley. He possesses a valid F-1 student visa and has continuously 5 6 resided in the United States since September 2012. As described below, Plaintiff Doe received 7 and accepted a job offer at a top Fortune 50 Company in Silicon Valley. He fears that his post- 8 graduate work authorization will be affected by the Executive Order and result in the loss of this 9 job opportunity. He brings suit under a pseudonym because he fears retaliation. 10 11 13. Plaintiff American Civil Liberties Union of Northern California (“ACLU-NC”), 12 founded in 1934 and based in San Francisco, California, is one of the largest ACLU affiliates, 13 with more than 95,000 members, thousands of whom live in this District. Plaintiff ACLU-NC 14 has long been dedicated to protecting the constitutional rights of its members and of all 15 16 Californians, including their rights to religious liberty and equal protection of the laws. Plaintiff 17 ACLU-NC has members of many faiths— Muslim, Christian, Jewish and others— who are 18 directly affected by the Executive Order and its implementation, including nationals of the 19 Designated Countries who are now unable to travel. Other ACLU-NC members are U.S. citizens 20 21 and permanent residents who wish to hear the speech of and associate with people of all faiths 22 who are now unable to travel or return to the United States because of the Executive Order. In 23 addition, Plaintiff ACLU-NC has members who pay federal taxes and are opposed to the use of 24 their tax dollars to implement and enforce the unlawful actions that are the subject of this lawsuit. 25 26 27 14. Plaintiff Jewish Family & Community Services East Bay (“JFCS-EB”), founded in 1877 as the Daughters of Israel Relief Society, has a long history of working to resettle and 28 -4CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 7 of 36 1 provide legal and other services to refugees and immigrants from many countries, including 2 people from the Designated Countries, in the San Francisco Bay Area, and serves and supports 3 Alameda and Contra Costa County residents of all ages, races, and religions. Plaintiff JFCS-EB 4 supports those refugees and immigrants who are already present in the area, and stands ready to 5 6 welcome and provide services to additional refugees and immigrants who are able to gain entry to 7 the United States. Defendants’ actions impede JFCS-EB’s ability to carry out its mission, as 8 JFCS-EB has been forced to divert its limited resources from critical ongoing work in support of 9 refugees and immigrants in order to assist individuals negatively impacted by the Executive 10 11 Order, such as responding to new and acute inquiries and requests for assistance. 12 15. 13 official capacity. 14 16. Defendant Donald J. Trump is the President of the United States. He is sued in his Defendant U.S. Department of State is a cabinet department of the United States 15 16 17 18 19 federal government that is responsible for issuing visas. 17. Defendant 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 21 18. Defendant U.S. Customs and Border Protection (“CBP”) is an agency within DHS 22 with the primary mission of detecting and preventing the unlawful entry of persons and goods 23 into the United States. 24 19. Defendant Rex W. Tillerson is the Secretary of State. He is sued in his official 25 26 27 capacity. 20. Defendant John Kelly is the Secretary of DHS. He is sued in his official capacity. 28 -5CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 8 of 36 1 2 3 4 21. Defendant Kevin K. McAleenan is the Acting Commissioner of CBP. He is sued in his official capacity. 22. Defendant Carrie Azurin is the Field Director of the San Francisco Field Office of CBP. She is sued in her official capacity. 5 STATEMENT OF FACTS 6 7 President Trump’s January 27, 2017 Executive Order 8 9 10 11 23. On January 27, 2017, Defendant Trump signed the Executive Order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” A copy of this Executive Order is attached to this Complaint as Exhibit A. 12 13 24. The Executive Order, citing the threat of terrorism committed by foreign nationals, 14 purports to direct a variety of changes to the manner and extent to which non-citizens may seek 15 and obtain admission to the United States. Among other things, the Executive Order imposes a 16 120-day moratorium on the resettlement of refugees; proclaims that “that the entry of nationals of 17 18 Syria as refugees is detrimental to the interests of the United States,” and therefore “suspend[s]” 19 indefinitely their entry to the country; and drastically limits to 50,000 the number of refugees 20 from all countries who may be admitted in fiscal year 2017 on the ground that admission of a 21 greater number of refugees would be “detrimental to the interests of the United States.” 22 23 25. Under Section 3(c) of the Executive Order, Defendant Trump proclaims “that the 24 immigrant and nonimmigrant entry into the United States of aliens from countries referred to in 25 section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the 26 United States,” and that he is therefore “suspend[ing] entry into the United States, as immigrants 27 28 and nonimmigrants, of such persons for 90 days from the date of this order,” with narrow -6CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 9 of 36 1 exceptions not relevant here. This section of the Executive Order appears on its face to prevent 2 all persons who are nationals of such countries from entering the United States, regardless of 3 whether they are otherwise admissible. 4 26. Under Section 1 of the Executive Order, entitled “Purpose,” the Executive Order 5 6 states that at the time of the September 11, 2001 terrorist attacks, “State Department policy 7 prevented consular officers from properly scrutinizing the visa applications of several of the 19 8 foreign nationals” involved in those attacks. However, the Executive Order does not impose any 9 restrictions on nationals of the countries of which the September 11 attackers were citizens. 10 11 27. The same day the Executive Order issued, the Deputy Assistant Secretary for Visa 12 Services at the Bureau of Consular Affairs of the Department of State, relying on the Executive 13 Order, issued a letter purporting to provisionally revoke all valid nonimmigrant and immigrant visas 14 of nationals of the Designated Countries, subject to exceptions not relevant here. The Provisional 15 16 Revocation Letter was not publicized; to the contrary, it was withheld from the public until it was 17 filed four days later under a “Notice of Supplemental Authority” in multiple cases challenging the 18 Executive Order. The existence of the Provisional Revocation Letter broadens the chaos caused by 19 the Executive Order. The federal government has apparently issued no public and legally binding 20 21 22 23 24 guidance regarding the meaning or proper interpretation of the Provisional Revocation Letter. A copy of this letter is attached to this Complaint as Exhibit B. 28. The Provisional Revocation Letter also appears to expand the scope of the Executive Order’s application: it applies on its face to persons who are present inside the United States as well 25 26 27 as persons outside the United States, rather than being limited to persons seeking to enter the United States. Under section 221(a)(1)(B) of the INA, 8 U. S. C. § 1227(a)(i)(B), any alien whose 28 -7CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 10 of 36 1 nonimmigrant visa has been revoked under 8 U. S. C. § 1201(i) (INA § 221(i), referenced in the 2 Provisional Revocation Letter) is deportable. Immigration attorneys report that the Provisional 3 Revocation Letter is now being applied to immigrants lawfully residing within the United States who 4 have pending applications for asylum, lawful permanent residence and other immigration benefits. 5 6 The Text and History of the Executive Order Show Discriminatory Intent 7 29. The Executive Order and the Provisional Revocation Letter currently apply to 8 9 nationals of seven countries, all of which are majority Muslim countries: Iraq, Iran, Libya, 10 Somalia, Sudan, Syria, and Yemen. 11 immigrant and nonimmigrant entry into the United States based on nationality, place of birth or 12 The Executive Order, by its express terms, suspends place of residence. The Provisional Revocation Letter similarly revokes “all valid nonimmigrant 13 14 and immigrant visas of nationals” based on nationality, place of birth, or place of residence. 30. 15 16 17 The Executive Order is an attempt by Defendant Trump to fulfill a campaign promise to ban Muslims from entering the United States. In a December 7, 2015 written statement, “Donald J. Trump Statement on Preventing Muslim Immigration,” then-candidate 18 19 20 Trump said that he was “calling for a total and complete shutdown of Muslims entering the United States.” This statement is still displayed on the official Trump-Pence website.1 21 22 31. That same day, Defendant Trump sent a tweet that stated “DONALD J. TRUMP STATEMENT ON PREVENTING MUSLIM IMMIGRATION,” linking to the statement.2 He 23 24 also read a slightly modified version of the statement himself in public, declaring that “Donald J. 25 26 27 28 1 https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration [last accessed on February 1, 2017]. 2 https://twitter.com/realDonaldTrump/status/673993417429524480 [last accessed on February 1, 2017]. -8CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 11 of 36 1 2 Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on. We have no choice.”3 3 4 32. On December 13, 2015, during an interview on CNN, Defendant Trump reaffirmed his intent to institute a ban on Muslims entering the country. When asked about his 5 6 “call … for, ‘a total and complete shutdown of Muslims entering the U.S.’” he nodded his head 7 and defended his position. Later, when he was asked whether he thought the ban would be was 8 constitutional, he replied, “first of all, they’re not citizens.”4 9 33. Defendant Trump repeatedly referred to a ban on Muslim immigration on the 10 11 campaign trail. For example, in a speech on June 13, 2016, Defendant Trump stated, “I called for 12 a ban after San Bernardino and was met with great scorn and anger. But now many … are saying 13 that I was right to do so.”5 14 34. In July 24, 2016 interview on Meet the Press, Defendant Trump was asked directly 15 16 if a plan similar to the now-enacted Executive Order was a “rollback” from “[t]he Muslim Ban.” 17 Defendant Trump rejected the suggestion: “I don’t think so. I actually don’t think it’s a rollback. 18 In fact, you could say it is an expansion.”6 19 35. After the election, on December 22, 2016, a reporter asked Defendant Trump 20 21 whether his “plans to create a Muslim register or ban Muslim immigration to the United States” 22 23 24 25 3 http://wpo.st/O0uY2 [last accessed on February 1, 2017]. A video of this interview is available on CNN’s Youtube Channel at https://www.youtube.com/watch?v=JKtcdn0zAqw; the referenced comments occur during the first 15 seconds of the interview and at 8:45 [last accessed on February 1, 2017]. 5 http://www.vox.com/2016/6/13/11925122/trump-orlando-foreign-policy-transcript [last accessed on February 1, 2017]. 6 http://www.nbcnews.com/meet-the-press/meet-press-july-24-2016-n615706 [last accessed on February 1, 2017]. 4 26 27 28 -9CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 12 of 36 1 2 had changed. Defendant Trump responded “you’ve known my plans all along” and that he was “100% correct” in his position.7 3 4 36. In the days after the Executive Order, Defendant Trump referred to the Executive Order as a “ban.” On January 30, Defendant Trump tweeted: “If the ban were announced with a 5 6 one week notice, the ‘bad’ would rush into our country during that week.”8 On February 1, 7 Defendant Trump expressed his indifference to whether the Executive Order is characterized as a 8 ban on Muslims: “Everyone is arguing whether or not it is a BAN. Call it what you want….”9 9 37. Senior advisors to Defendant Trump have engaged in anti-Muslim rhetoric that 10 11 12 provide additional support for the notion that the Executive Order was prompted by animus toward Islam and Muslims. 13 14 38. In the summer of 2014, Stephen Bannon, chief strategist and senior counselor to Defendant Trump and a reported principal architect of the Executive Order, advocated for 15 16 separation from those of the Muslim faith, telling a meeting of the Human Dignity Institute: “If 17 you look back at the long history of the Judeo-Christian West struggle against Islam, I believe 18 that our forefathers kept their stance, and I think they did the right thing. I think they kept it out 19 of the world, whether it was at Vienna, or Tours, or other places… It bequeathed to us the great 20 21 institution that is the church of the West.” Bannon continued: “[T]hey were able to stave this off, 22 and they were able to defeat it, and they were able to bequeath to us a church and a civilization 23 that really is the flower of mankind, so I think it’s incumbent on all of us to do what I call a gut 24 check, to really think about what our role is in this battle that’s before us.”10 25 26 7 27 28 http://time.com/4611229/donald-trump-berlin-attack/ [last accessed February 1, 2017]. https://twitter.com/realDonaldTrump/status/826060143825666051 [last accessed on February 1, 2017]. 9 https://twitter.com/realDonaldTrump/status/826774668245946368 [last accessed on February 1, 2017]. 10 https://www.buzzfeed.com/lesterfeder/this-is-how-steve-bannon-sees-the-entire-world [last accessed February 1, 8 -10CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 13 of 36 1 39. In an interview on January 28, 2017, one of Defendant Trump’s senior advisors, 2 Rudolph Giuliani, left no doubt that the ban on entry from nationals of the Designated Countries 3 was intended to carry out a ban on Muslims, and that the Executive Order was crafted to create a 4 pretextual cover for a Muslim ban. Mr. Giuliani stated: “I’ll tell you the whole history of it. So, 5 6 7 8 9 when he [Defendant Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”11 40. On January 29, an anonymous “senior administration official” briefed a reporter from Breitbart.com on the intended purpose of the Executive Order: “The reality, though, is that the 10 11 12 13 14 situation [of large Islamic populations] that exists today in parts of France, in parts of Germany, in Belgium, etcetera, is not a situation we want replicated inside the United States.”12 41. Defendant Trump and his agents have also made it clear that they intend to favor non-Muslims nationals of the Designated Countries over Muslim nationals of those countries. In 15 16 an interview with the Christian Broadcasting Network on January 27, 2017, Defendant Trump 17 asserted that the United States had been discriminating against Christian refugees from Syria in 18 favor of Muslims, claiming that “If you were a Muslim, you could come in. But if you were 19 Christian, it was almost impossible.” He continued, “they were chopping off the heads of 20 21 22 23 24 everybody but more so the Christians. I thought it was very, very unfair. So we are going to help them.”13 42. Consistent with Defendant Trump’s expressed intent to favor Christians, Section 5(e) of the Executive Order authorizes the Secretaries of the Department of State and the 25 26 27 28 2017]. 11 http://wpo.st/xzuY2 [last accessed on February 1, 2017]. 12 http://www.breitbart.com/big-government/2017/01/30/trump-changes-immigration-favor-american-values/ (parenthetical in original) [last accessed on February 1, 2017]. 13 http://www.breitbart.com/national-security/2017/01/27/trump-will-give-persecuted-christians-priority-refugeestatus/ [last accessed on February 1, 2017]. -11CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 14 of 36 1 Department of Homeland Security to admit individuals who are “member[s] of a religious 2 minority” in their countries of nationality who are “facing religious persecution.” This provision 3 directly grants Christians and other religions preference over Muslim refugees. 4 5 6 7 Facts About Plaintiff Hadil Al-Mowafak 43. Plaintiff Hadil Al-Mowafak is a Yemeni national who is currently in her freshman year at Stanford University in Palo Alto, California and hopes to earn her undergraduate degree in 8 9 2020. She possesses a valid F-1 multiple-entry student visa that was duly issued on July 29, 10 2016. She has continuously resided in the United States since September 17, 2016. Plaintiff Al- 11 Mowafak currently plans to travel to Yemen in the summer of 2017 to visit her husband, who 12 lives in Yemen. Because her husband does not have a United States visa, the only way that 13 14 15 16 17 Plaintiff Al-Mowafak can see her husband is if she travels to Yemen to visit him. 44. In addition to being unable to travel to see her husband, Plaintiff Al-Mowafak fears that if she is not permitted to re-enter the United States because of the Executive Order and its implementation, she will be prevented from continuing her undergraduate studies. She is also 18 19 20 fearful about the effects of the Provisional Revocation Letter on her immigration status. Facts About Plaintiff Wasim Ghaleb 21 22 45. Plaintiff Wasim Ghaleb is a 23-year-old national of Yemen, who attends 23 Grossmont College in San Diego, California. He is majoring in business administration. He 24 hopes to complete his Associate degree at Grossmont College, transfer to a Bachelor of Arts 25 program at a university, and complete his studies in 2020. 26 27 46. On January 15, 2016, Ghaleb traveled to Saudi Arabia to spend time with family during a break in the academic schedule. As the holder of a valid, multiple-entry F-1 visa that 28 -12CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 15 of 36 1 2 3 would allow him to re-enter at any time prior to February 23, 2017, Ghaleb intended to return on January 28, 2017, to begin the new semester on January 30. 47. On January 28, Plaintiff Ghaleb went to the airport in Jeddah and boarded a British 4 Airways flight to London with a reservation on a connecting flight to Los Angeles, California. 5 When he arrived in London and went to the gate for his flight to Los Angeles International 6 Airport (“LAX”), he heard his name being called over a loudspeaker. When Plaintiff Ghaleb 7 approached the counter, individuals he understood to be U.S. agents of Defendant DHS informed 8 9 him that he could not continue on his flight to LAX because Defendant Trump had banned 10 citizens from seven countries—including Yemen—from traveling to the United States. Plaintiff 11 Ghaleb showed the agents his Form I-20 and valid F-1 entry visa, to demonstrate that he had 12 permission to enter the United States, but the agents told him he had no choice but to return to 13 14 Jeddah. 48. Based on instructions from the U.S. agent who informed Plaintiff Ghaleb of the 15 16 travel ban, Plaintiff Ghaleb arranged for a return flight to Jeddah on British Airways. He spent 17 seven hours in the London airport wondering what his future would hold, worrying that he would 18 not be able to complete the semester at Grossmont College, and making calls and asking 19 questions to try to find a way to travel to the United States before returning to Jeddah. Plaintiff 20 21 22 Ghaleb has already missed several days of the new semester, but he is eager to return and intends to complete the semester if the U.S. will honor his duly issued F-1 visa and Form I-20. 23 Facts About Plaintiff John Doe 24 25 26 49. Plaintiff John Doe is an Iranian national who is currently a Ph.D. candidate at University of California, Berkeley. Plaintiff Doe expects to receive his Ph.D. by May of 2017. 27 He holds a 3.9 grade point average and has published scholarly articles in prestigious scientific 28 -13CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 16 of 36 1 journals. He possesses a valid F-1 student visa and has continuously resided in the United States 2 since September 2012. Plaintiff Doe currently lives in Albany, California. He is completing his 3 fifth and final year of study in engineering. 4 50. In December 2016, before the Executive Order was issued, Plaintiff Doe applied 5 6 for Optional Practical Training (“OPT”). OPT is post-graduation work authorization for 7 international students. After he applied for OPT, he received and accepted a job offer for a 8 product development position at a top Fortune 50 Company in Silicon Valley. He fears that his 9 OPT will be affected. If his OPT is affected by the Executive Order, then he will be unable to 10 11 12 13 14 start his job on a timely basis and may be denied the job. Plaintiff Doe is also fearful about the effects of the Provisional Revocation Letter on his immigration status. 51. For the reasons set forth below, the Executive Order and Provisional Revocation Letter unlawfully deprive Plaintiffs of their rights under the United States Constitution and the 15 16 17 Immigration and Nationality Act, and are ultra vires. Facts Common to all Members of the Plaintiff Class 18 19 20 21 22 52. Since the Executive Order was announced on January 27, 2017, its implementation by Defendants and their agents has been marked by chaos and confusion. 53. For example, on at least several occasions, Defendants and their agents have unlawfully required persons seeking entry into the United States who otherwise possessed valid 23 24 visas or lawful permanent residence status to “voluntarily” renounce their U.S. immigration status 25 by signing documents such as U.S. Customs and Immigration Services Form I-407, which is 26 entitled “Record of Abandonment of Lawful Permanent Resident Status,” under the false 27 28 -14CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 17 of 36 1 2 3 4 representation that, if they did not do so, they would be ineligible for entry into the United States for a period of at least five years. 54. As a result, individual Plaintiffs and members of the Plaintiff Class reasonably fear that, in the event they attempt to enter or re-enter the United States, they will be denied 5 6 7 permission to do so, notwithstanding their previously established lawful presence in the United States and the fact that they are otherwise admissible. 8 9 CLASS ACTION ALLEGATIONS 55. Plaintiffs bring this action as a class action pursuant to Fed. R. Civ. P. 23(b) (1) 10 11 and (b) (2), on their own behalf and on behalf of all other persons who are nationals of Iran, Iraq, 12 Libya, Somalia, Sudan, Syria or Yemen (the “Designated Countries”) who currently are, or 13 recently have been, lawfully present in California and who, but for the January 27, 2017 14 Executive Order and the Provisional Revocation Letter, would be able to travel to the United 15 16 States or leave and return to the United States. This includes the following subclasses: 17 (a) Nationals of the Designated Countries who resided in California and left the United 18 States prior to issuance of the Executive Order and the Provisional Revocation Letter with 19 the intent to return, and are currently abroad; and 20 21 (b) Nationals of the Designated Countries who reside in California and were lawfully 22 present in the United States upon issuance of the Executive Order and the Provisional 23 Revocation Letter, and wish to be able, in the future, to leave the United States 24 temporarily and return to the United States. 25 26 27 56. The Plaintiff Class is so numerous that joinder is impracticable. According to the Annual Report of the Visa Office, in 2015, the last year for which data are available, the United 28 -15CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 18 of 36 1 States issued approximately 85,000 immigrant and non-immigrant visas to nationals from the 2 seven Designated Countries.14 On information and belief, a large number of such persons reside, 3 or have recently resided, in California. 4 57. The claims of the Plaintiff Class members share common issues of law, including 5 6 but not limited to whether the Executive Order violates their associational, religious exercise and 7 due process rights under the First and Fifth Amendments, the Religious Freedom Restoration Act, 8 the Immigration and Nationality Act and the Administrative Procedure Act. 9 58. The claims of the Plaintiff Class members share common issues of fact, including 10 11 but not limited to whether the Executive Order is being or will be enforced so as to prevent them 12 from entering the United States from abroad or from re-entering the United States should they 13 choose to leave the United States briefly, even though they would otherwise be admissible. 14 59. The claims or defenses of the named Plaintiffs are typical of the claims or defenses 15 16 of members of the Plaintiff Class. 60. 17 18 19 The named Plaintiffs will fairly and adequately protect the interests of the Plaintiff class. The named Plaintiffs have no interest that is now or may be potentially antagonistic to the interests of the Plaintiff class. The attorneys representing the named Plaintiffs include 20 21 22 experienced civil rights attorneys and are considered able practitioners in federal constitutional litigation. These attorneys should be appointed as class counsel. 23 24 61. Defendants have acted, have threatened to act, and will act on grounds generally applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief appropriate 25 26 14 27 28 https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2015AnnualReport/FY15AnnualReportTableIII.pdf ; https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2015AnnualReport/FY15AnnualReportTableXVIII.pdf [last accessed on February 1, 2017]. -16CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 19 of 36 1 2 3 4 to the class as a whole. The Plaintiff Class may therefore be properly certified under Fed. R. Civ. P. 23(b) (2). 62. Prosecution of separate actions by individual members of the Plaintiff Class would create the risk of inconsistent or varying adjudications and would establish incompatible 5 6 7 standards of conduct for individual members of the Plaintiff Class. The Plaintiff Class may therefore be properly certified under Fed. R. Civ. P. 23(b) (1). 8 9 CLAIMS FOR RELIEF 10 COUNT ONE FIRST AMENDMENT – ESTABLISHMENT, FREE EXERCISE, SPEECH AND ASSEMBLY CLAUSES 11 12 13 14 15 16 17 18 63. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 64. The First Amendment prohibits the establishment of a religion or the prohibition of the free exercise of religion. 65. The Executive Order and the Provisional Revocation Letter constitute an unlawful attempt to discriminate against Muslims and to establish a preference for one religion over 19 another. References in the Executive Order and the Provisional Revocation Letter to the seven 20 21 Designated Countries are transparently a pretext for the underlying aim to establish this 22 preference. 23 66. Plaintiffs are harmed by this preference in that Defendants seek to disadvantage 24 them, as compared to other religions, in the consideration and continuation of their status as 25 lawfully entering, or being present in the United States. 26 67. The Executive Order and the Provisional Revocation Letter also violate the rights 27 of Plaintiffs ACLU-NC and Jewish Family & Community Services East Bay to receive 28 -17CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 20 of 36 1 2 information and speech from, and to associate freely with, the individual Plaintiffs and Plaintiff class members. COUNT TWO RELIGIOUS FREEDOM RESTORATION ACT 3 4 5 6 7 8 9 10 68. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 69. The Executive Order and the Provisional Relocation Letter will have the effect of imposing a special disability on the basis of religious views or religious status, by withdrawing important immigration benefits principally from Muslims on account of their religion. In doing so, the Executive Order and the Provisional Revocation Letter place a substantial burden on 11 12 13 14 15 Muslims’ exercise of religion in a way that is not the least restrictive means of furthering a compelling governmental interest. 70. Defendants’ actions therefore constitute a violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 et seq. 16 COUNT THREE FIFTH AMENDMENT – EQUAL PROTECTION 17 18 19 71. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 20 21 72. The Executive Order and the Provisional Revocation Letter discriminate against 22 Plaintiffs on the basis of their country of origin, and without sufficient justification, and therefore 23 violate the equal protection component of the Due Process Clause of the Fifth Amendment. 24 73. Additionally, the Executive Order and the Provisional Revocation Letter were 25 26 27 substantially motivated by animus toward—and have a disparate effect on—Muslims, which also violates the equal protection component of the Due Process Clause of the Fifth Amendment. 28 -18CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 21 of 36 COUNT FOUR FIFTH AMENDMENT – PROCEDURAL DUE PROCESS 1 2 3 74. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 4 5 75. Procedural due process requires that the government be constrained before it acts 6 in a way that deprives individuals of liberty interests protected under the Due Process Clause of 7 the Fifth Amendment. 8 76. The United States government is obligated by international law and by U.S. law, 9 10 including but not limited to the INA, 8 U.S.C. §1101(a)(13)(C), to fairly process for entry or re- 11 entry into the United States those persons who are lawful permanent residents, who have 12 established a significant connection with the United States and continuously resided in the United 13 States, or who have complied with all of the legal and procedural requirements for lawful entry 14 15 16 17 18 into the United States. 77. Defendants’ actions, as described above, have denied Plaintiffs who are currently outside the United States the opportunity to re-enter the United States, and have denied Plaintiffs who currently lawfully reside in the United States, the opportunity to travel outside the United 19 20 21 States, for fear that they will be denied re-entry. Such actions, taken pursuant to the Executive Order, violate the procedural due process rights guaranteed by the Fifth Amendment. 22 COUNT FIVE IMMIGRATION AND NATIONALITY ACT 23 24 25 26 27 78. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 79. The INA forbids discrimination in issuance of visas based on a person’s nationality, place of birth, or place of residence. 8 U.S.C. § 1152(a)(1)(A). 28 -19CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 22 of 36 1 80. Defendants’ actions as set forth above were arbitrary, capricious, discriminatory, 2 an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, 3 power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or 4 short of statutory right; and without observance of procedure required by law, in violation of the 5 Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D). 6 COUNT SIX ADMINISTRATIVE PROCEDURE ACT 7 8 9 10 81. Plaintiffs repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 82. The Administrative Procedure Act, 5 U. S. C. § 706 (2), places clear limits on the 11 12 13 exercise of discretion to revoke a visa under 8 U.S.C. § 1201(i). Specifically, the Secretary of State must comply with statutory procedures for the revocation of a visa; the Secretary’s action 14 must not exceed his or her statutory authority; and the Secretary must respect the constitutional 15 rights enjoyed by visa holders. 16 17 83. The Provisional Revocation Letter is facially improper because it was issued on a blanket basis, without considering information related to the eligibility of any individual alien. 18 Under 22 C. F. R. § 41.122(b)(2) and 22 C. F. R. § 41.82(b), a visa can only be provisionally 19 20 21 revoked on the basis of a particularized finding that a visa holder is ineligible. 84. The Provisional Revocation Letter is also facially defective for lack of proper 22 notice. Under 22 C. F. R. § 41.122(c) and 22 C. F. R. § 41.82(c), notice of provisional revocation 23 must be given to the visa holder where practicable, unless otherwise instructed by the Department 24 of State. There is no evidence of an instruction not to give notice, or that notice was not 25 practicable. 26 85. Defendants’ actions as set forth above were arbitrary, capricious, discriminatory, 27 28 an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, -20CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 23 of 36 1 power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or 2 short of statutory right; and without observance of procedure required by law, in violation of the 3 Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D). 4 PRAYER FOR RELIEF 5 6 7 8 WHEREFORE, Petitioner prays that this Court grant the following relief: 1. A determination that this action may properly be maintained as a class action pursuant to Fed. R. Civ. P. 23(b)(1) and (b)(2); 9 10 11 2. A declaration that the Executive Order and the Provisional Revocation Letter are in violation of the rights of Plaintiffs and Plaintiff Class members for the reasons set forth above. 12 13 3. An injunction that the Executive Order and the Provisional Revocation Letter may 14 not be enforced as against Plaintiffs and Plaintiff Class members in connection with their entry or 15 re-entry into the United States; 16 17 18 4. An award to the Plaintiff Class of reasonable costs and attorney’s fees; and, 5. Such other and further relief that this Court may deem fit and proper. 19 20 Dated: February 2, 2017 21 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 22 23 By: s/Christine P. Sun CHRISTINE P. SUN 24 25 Attorneys for Plaintiffs 26 27 28 -21CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 24 of 36 1 Dated: February 2, 2017 KEKER & VAN NEST LLP 2 3 By: s/R. Adam Lauridsen R. ADAM LAURIDSEN 4 Attorneys for Plaintiffs 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -22- CLASS ACTION COMPLAINT FOR DEC. AND INJUNCTIVE RELIEF 1144492.01 Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 25 of 36 EXHIBIT A Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 26 of 36 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 3:17-cv-00557 Document 1 Filed 02/02/17 Page 27 of 36 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 3:17-cv-00557 Document 1 Filed 02/02/17 Page 28 of 36 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 3:17-cv-00557 Document 1 Filed 02/02/17 Page 29 of 36 (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 3:17-cv-00557 Document 1 Filed 02/02/17 Page 30 of 36 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 3:17-cv-00557 Document 1 Filed 02/02/17 Page 31 of 36 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 3:17-cv-00557 Document 1 Filed 02/02/17 Page 32 of 36 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 3:17-cv-00557 Document 1 Filed 02/02/17 Page 33 of 36 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 3:17-cv-00557 Document 1 Filed 02/02/17 Page 34 of 36 DONALD J. TRUMP THE WHITE HOUSE, January 27, 2017. # # # Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 35 of 36 EXHIBIT Case 3:17-cv-00557 Document 1 Filed 02/02/17 Page 36 of 36 United States Department of State Deputy Assistant Secretcuy for Visa Services Washington, D. C. 20520 January 27, 2017 Upon request of the U.S. Department of Homeland Security and pursuant to sections 212(±) and 221(i) of the Immigration and Nationality Act and 22 CFR 41.122 and 42.82, and in implementation of'section 3(c) of the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals, I hereby provisionally revoke all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to the exceptions discussed below. ' The revocation does not apply to visas in the following nonimmigrant classifications: A-1, A-2, G-1, G-2, G-3, G-4, NATO, C-2, or certain diplomatic visas. The revocation also does not apply to any visa exempted on the basis of a determination made by the Secretaries of State and Homeland Secmity pursuant to section 3(g) of the Executive Order on a case-by-case basis, and when in the national interest. This document 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. ~~a:=-----Edward J. Ramotowski Deputy Assistant Secretary Bureau of Consular Affairs Department of State