Case 1:17-cv-00353-TCB Document 5-1 Filed 02/01/17 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MOHAMMED ABDULLAH
TAWFEEQ,
Plaintiff.
v.
U.S. DEPARTMENT OF HOMELAND
SECURITY (“DHS”); JOHN F. KELLY,
Secretary of DHS; U.S. CUSTOMS AND
BORDER PROTECTION (“CBP”);
KEVIN K. MCALEENAN, Acting
Commissioner of CBP; CAREY DAVIS,
Port Director, CBP ; ANDY PRYOR,
Manager, CBP; SHANA WELLS,
Manager, CBP; U.S. DEPARTMENT
OF STATE (“Department of State”);
THOMAS A. SHANNON, JR., Acting
Secretary of State, Department of State.
Defendants.

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Case No. 1:17-cv-353

MEMORANDUM OF LAW
IN SUPPORT OF
EMERGENCY MOTION
TO EXPEDITE
PROCEEDINGS

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF
EMERGENCY MOTION TO EXPEDITE PROCEEDINGS
By and through undersigned counsel, Plaintiff moves for expedited
consideration of this matter pursuant to 28 U.S.C. § 1657 and Local Rule 65.2,
because the issues raised in the complaint rely on Plaintiff’s rights under the U.S.
Constitution and federal immigration law that are of immediate importance and
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that could evade review if the regular briefing schedule is not significantly
accelerated to reflect the expedited timetable set forth in the proposed order.
Authority to Expedite
28 U.S.C. § 1657 gives this Court the power to “expedite the consideration
of any action…for temporary or preliminary injunctive relief, or any other action if
good cause therefor is shown.” “’[G]ood cause’ is shown if a right under the
Constitution of the Untied States or a Federal Statute . . . would be maintained in a
factual context that indicates that a request for expedited consideration has merit.”
28 U.S.C. § 1657(a). Local Rule 65.2 further permits this Court to waive motion
time requirements and grant immediate hearings on any matter “requiring such
expedited procedure.” L.R. 65.2.
Defendants’ Violation of Federal Law
Defendants Department of Homeland Security (“DHS”) and Customs and
Border Protection (“CBP”) continue to inspect returning permanent resident aliens
in violation of Section 101(a)(13) of the Immigration & Nationality Act (“INA”) (8
U.S.C. § 1101(a)(13)) by impermissibly applying a discretionary review of
whether DHS is in “receipt of significant derogatory information” with respect to
such aliens. To the extent that Defendants contend that “derogatory information”
is present with respect to any such alien, then his or her “entry” would likely be
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“barred” pursuant to the President’s executive order, in violation of the right to a
removal hearing pursuant to INA §240 (8 U.S.C. §1229a). In this “barred entry”
scenario, a returning permanent resident alien would furthermore be deprived of
his or her constitutional due process rights. In short, INA Section 212(f) does not
allow the President to trump the presumption in INA § 101(a)(13)(C) that returning
permanent resident aliens have not legally exited the United States, nor to
circumvent the hearing process available to such aliens whom the government
believes do not qualify for that presumption. Defendants’ conduct, however,
including toward Plaintiff, has violated this legal regime.
Expedited Consideration is Required
Plaintiff submits that “good cause” exists for expedited consideration of this
matter for the following reasons:
First, Plaintiff’s position with CNN requires his ability to travel
internationally to those countries targeted by the Executive Order. Compl. ¶ 47.
His return to the United States on January 29, 2017, was encumbered by Defendant
CBP’s application of the “discretionary entry” policy established by the Executive
Order, in violation of his right to “return” to the United States without having to
apply for “admission,” as set forth in INA § 101(a)(13)(C). Compl. ¶¶ 51-54. The

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primary CBP inspecting officer in fact told him that he could be denied entry
pursuant to the Executive Order. Compl. ¶ 51.
Second, the Executive Order currently imposes a 90-day period of
uncertainty for those in Plaintiffs’ position. See Executive Order at § 3(c). If
normal procedural rules are applied in this matter, Plaintiff’s dispute could easily
be mooted by the Government’s taking the full amount of time to respond
permitted under the rules. The President would then be free to extend the current
Executive Order, and Defendants would be free to mistreat Plaintiff during a
subsequent international trip during the period the Order is in effect. The President
could also issue a new order with similar effect that Defendants could use in a
manner that would be capable of continuous repetition but could evade judicial
review. Plaintiff’s need to travel internationally during this time period is almost
certain, as set forth in the Declaration of Deborah Rayner, Senior Vice President of
International Newsgathering, CNN. Exhibit A.
There is, however, a well-established doctrine ensuring that review is made
available in such situations. See, e.g., Kingdomware Tech., Inc. v. United States,
136 S.Ct. 1969, 1976 (2016) (exception to mootness doctrine for controversy
“capable of repetition, yet evading review”), citing Spencer v. Kemna, 523 U.S. 1,
17, (1998). There is thus “good cause” to expedite the briefing schedule of this
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case because it is capable of repetition, yet absent prompt consideration of the legal
issues raised, it could effectively evade judicial review. The most efficient manner
to adjudicate Plaintiff’s rights in the situation presented by this case is to allow this
Court to render a decision within the current 90-day ban period. Absent such a
briefing schedule, there is a significant chance that plaintiff’s injury will “evade
review.”
Finally, this matter presents important statutory and constitutional issues.
Judges around the country have acknowledged the fundamental rights raised by
Defendants’ implementation of the Executive Order, issuing numerous orders
pausing certain of its applications. See, e.g., Darweesh v. Trump, Case No. 1:17cv-480 (E.D.N.Y., January 28, 2017); Aziz v. Trump, Case No. 1:17-cv-116
(E.D.Va., January 28, 2017); Tootkaboni v. Trump, 1:17-cv-10154 (D. Mass.,
January 28, 2017); Abdiaziz v. Trump, 2:17-cv-00135 (W.D. Wash., January 30,
2017). Plaintiff seeks vindication of his due process and statutory rights under the
INA that are provided to him as a lawful permanent resident. This is precisely the
sort of constitutional or federal statutory controversy where the right under review
is best maintained through expedited consideration of its merit. 28 U.S.C.
§ 1657(a).
Relief Requested – Expedited Briefing
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Plaintiff submits that the rights under review can best be maintained through
expeditious summary judgment briefing—without resort to more drastic temporary
restraining order or preliminary injunction procedures. Plaintiff thus requests that
the Court order the Government to respond to his Complaint no later than 10 days
after any order granting this motion, and that the Court set a summary judgment
briefing schedule that will end no later than 20 days thereafter, thus allowing the
Court to rule on this matter expeditiously.
Counsel to Plaintiff confirms that it has met and conferred with counsel to
Defendants, and that no agreement was reached on this motion. Plaintiff requests
that the Government be required to promptly respond to this Motion.
DATED February 1, 2017

Respectfully submitted,
/s/ Theresia Moser
Theresia M. Moser
Georgia Bar No. 526514
Moser Law Co.
112 Krog Street N.E., Suite 26
Atlanta, GA 30307
Phone: (404) 537-5339
Fax: (404) 537-5340
tmoser@moserlawco.com
Carl W. Hampe (pro hac vice)
Daniel P. Pierce (pro hac vice)
Fragomen, Del Rey, Bernsen & Loewy LLP
1101 15th St. NW, Suite 700
Washington, DC 20005
Phone: (202) 223-5515
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Fax: (202) 371-2898
champe@fragomen.com
dpierce@fragomen.com
Attorneys for Plaintiff

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