Case 1:17-cv-00353-TCB Document 25 Filed 02/27/17 Page 1 of 27

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

PLAINTIFF’S OPPOSITION
TO DEFENDANTS’
MOTION TO DISMISS

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
Plaintiff Mohammed Abdullah Tawfeeq is a prominent journalist and a
lawful permanent resident (“LPR”) from Iraq. On January 27, 2017, President
Donald J. Trump issued an Executive Order (“EO”) that purports to ban, inter alia,
all aliens from Iraq—including LPRs—from entering the United States. See ECF
No. 1-1. Defendants improperly applied the EO to Mr. Tawfeeq upon his return
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from Iraq on January 29, 2017, instead of permitting his return pursuant to his
rights under the Immigration and Nationality Act (“INA”). Plaintiff brought the
instant action for declaratory, mandamus, and other relief the following day.
Defendants now seek dismissal of Plaintiff’s case because they claim that
subsequent events have mooted his claims. See ECF No. 19. Factual jurisdictional
challenges that are inextricably linked to the merits of a case, however, are
disfavored, and Defendants bear a heavy burden of persuasion because this is
precisely such a challenge. See U.S. v. Concentrated Phosphate Exp. Ass’n, 393
U.S. 199, 203 (1968); Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990).
Defendants essentially argue that the case is now moot because they have
voluntarily ceased their unlawful conduct. Defendants bear a “formidable burden
of showing that it is absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167, 190 (2000).
Defendants attempt to carry their heavy burden by citing three documents: (1)
a White House Counsel memorandum (hereinafter the “memorandum”) that
interprets the EO to exclude LPRs, (2) a Department of Homeland Security
(“DHS”) press release regarding the memorandum, and (3) a District Court opinion
from Massachusetts that declined to extend a temporary restraining order (“TRO”)
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based on the memorandum. Those documents fall far, far short of carrying
Defendants’ burden for numerous reasons.
First, the text of the EO itself has not changed and still purports to exclude
all “immigrants” (i.e. LPRs) like Plaintiff. Second, the memorandum and press
release to which Defendant point are of dubious legal import—they are not binding
policy, cannot amend the EO’s clear language, and need not be followed by
admitting officers at the border. Third, the cited documents only claim that the
EO’s clear language somehow does not apply to LPRs—not that application of the
language to Plaintiff would be illegal, as Plaintiff contends. Fourth, at least three
other Federal Courts—the Western District of Washington, the Ninth Circuit, and
the Eastern District of Virginia—have now rejected the Government’s nearly
identical mootness arguments. The District of Massachusetts’ opinion does not
appear to have fully considered these arguments, and in any case that ruling issued
in a TRO context is inapposite here.
Moreover, even if Defendants could carry their heavy mootness burden here,
the Court should still deny the Motion because several exceptions to mootness
apply. Defendants have not established full voluntary cessation of their conduct,
as the underlying EO remains in effect. The conduct here falls under the mootness
exception for conduct capable of repetition yet evading review. And Defendants’
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conduct unlawfully imposes a “brooding presence” concerning Plaintiff’s legal
rights, particularly given his professional need to travel.
Defendants could take steps designed to provide Plaintiff with the
assurances he seeks by withdrawing the EO, clarifying that the EO cannot legally
apply to him, presenting binding policy guidance to field officers, or agreeing that
Plaintiff’s rights under INA § 101(a)(13)(C), trump the authority cited in the EO.
Defendants have thus far refused to take any of these steps and have relied instead
on convoluted, nonbinding reinterpretations of clear language.
Plaintiff thus remains in the same position as when he filed his Complaint—
unable to travel outside of the United States with assurances that he will be
permitted to return under applicable law. If Plaintiff travels abroad, Defendants
could bar him from the country without any due process under the terms of the EO
and notwithstanding any of the subsequent documents they now cite. Defendants
could also apply a separate EO that similarly bars Plaintiff based on their litigation
position that they possess such power. Defendants’ non-binding assurances that
they will not apply the current EO to LPRs provides cold comfort in light of their
recent positions and conduct. Plaintiff deserves an adjudication of his statutory
and constitutional rights and the certainty that this Court can provide via the

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requested declaratory, mandamus, and injunctive relief. Plaintiff respectfully
requests that the Court deny the Motion to Dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is a prominent journalist for Cable News Network, Inc. (“CNN”)
specializing in the regions of the Middle East and North Africa. Since 2013,
Plaintiff has been stationed at CNN’s Atlanta offices, but he must regularly travel
abroad as part of his job duties. ECF No. 1 at ¶¶ 40-47; ECF No. 5-2, at ¶ 5.1
Plaintiff is an LPR who resides in Atlanta. ECF No. 1, at ¶¶ 37-38.
On January 27, 2017, President Donald J. Trump signed an Executive Order
entitled “Protecting the Nation from Foreign Terrorist Entry Into the United
States.” ECF No. 1-1. That EO, inter alia, “suspend[ed] entry into the United
States, as immigrants and nonimmigrants” aliens from seven nationalities,
including Iraq, for a period of 90 days. Id.; ECF No. 1, at ¶¶ 60-61. Subsequent to
the EO’s issuance, Defendants issued various statements indicating that the EO
would be applied to LPRs—i.e. immigrants—like Plaintiff. ECF No. 1, at ¶¶ 111

Plaintiff assumes that the allegations from his Complaint cited herein will not be
disputed by Defendants. If Defendants dispute these facts and thereby create
contested facts concerning this motion, Plaintiff requests an evidentiary hearing on
the motion. See Williamson v. Tucker, 645 F.2d 404, 414 (“[T]he district court
must give the plaintiff an opportunity for discovery and for a hearing that is
appropriate to the nature of the motion to dismiss.”).
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14, 63-70. On information and belief (and as has been widely reported in the press
and other lawsuits around the country), Defendants actually did apply the EO to
refuse entry or otherwise impede the travel of numerous LPRs. Id. at ¶ 9.
Defendants then applied the EO to Plaintiff upon his return to the United
States from a trip to Iraq on the evening of January 29, 2017. Specifically,
Customs and Border Protection (“CBP”) officials at Atlanta Hartsfield/Jackson
International Airport informed Plaintiff that he could be denied entry under the EO
and forced him to wait while CBP obtained an unspecified “e-mail” concerning
whether he would be allowed into the United States. Id. at ¶¶ 48-56. The next day,
Plaintiff filed the instant suit seeking declaratory, mandamus, and injunctive relief
for the violation of his statutory and constitutional rights. Id. at ¶¶ 105-132.
On February 1, 2017—two days after Plaintiff filed this suit and after
numerous similar suits had been filed around the country—White House Counsel
Donald F. McGahn II issued a “Memorandum to the Acting Secretary of State, the
Acting Attorney General, and the Secretary of Homeland Security” purporting to
issue “Authoritative Guidance” regarding the EO. ECF No. 19-2. That
memorandum stated:
I understand that there has been reasonable uncertainty about whether
[Sections 3(c) and 3(e) of the Executive Order] apply to lawful permanent
residents of the United States. Accordingly, to remove any confusion I now
clarify that Sections 3(c) and 3(e) do not apply to such individuals. Please
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immediately convey this interpretive guidance to all individuals responsible
for the administration and implementation of the Executive Order.
Id. Two days after the White House Counsel issued his memorandum, DHS issued
a “Statement on Countries Currently Suspended from Travel to the United States”
from its Office of the Press Secretary stating that the travel “pause does not apply
to Lawful Permanent Residents.” ECF No. 19-4 at 1.
ARGUMENT
I.

Defendants—not Plaintiff—bear the mootness burden.

In the Memorandum accompanying their Motion, Defendants assert the
basic principle that “the party invoking federal jurisdiction bears the burden of
proving its existence.” ECF No. 19-1 at 3-4. Defendants appear to suggest that the
burden with respect to their Motion rests on Plaintiff. It does not.
Defendants do not levy a “facial” mootness challenge in their Motion.
Defendants do not contest that the Complaint alleges numerous bases for this
Court’s jurisdiction. See ECF No. 1, at ¶¶ 29-32. Defendants also provide the
Court with no reason to believe that Plaintiff’s case was moot when filed, as their
Motion acknowledges that there might have been “a question as to the applicability
of the [EO] to Plaintiff Mr. Tawfeeq on the day he filed the instant complaint.”
ECF No. 19-1 at 6.

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Instead, Defendants rely on post-filing evidence from outside the complaint
to levy a “factual challenge” to the Complaint. Id. at 4-5. Defendants—not
Plaintiff—bear the burden on such a challenge. As the Eleventh Circuit has
cautioned, “it is extremely difficult to dismiss a claim for lack of subject matter
jurisdiction.” Garcia v. Copenhaver, Bell & Assocs., M.D.’s, P.A., 104 F.3d 1256,
1260 (11th Cir. 1997). The test for mootness is a “stringent one,” and the party
arguing in favor of mootness must “satisfy [a] heavy burden of persuasion.” U.S. v.
Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968). Indeed, “[t]he
formidable, heavy burden of persuading the court that the challenged conduct
cannot reasonably be expected to start up again lies with the party asserting
mootness.” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th
Cir. 2007) (quotations omitted). “[A] defendant claiming that its voluntary
compliance moots a case bears the formidable burden of showing that it is
absolutely clear the allegedly wrongful behavior could not reasonably be expected
to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 190 (2000).
II.

The Government has not carried its stringent burden.

Defendants primarily base their mootness arguments on two documents that
post-date Plaintiff’s Complaint: (1) the White House Counsel memorandum and (2)
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the DHS press statement. ECF Nos. 19-2, 19-4. These documents cannot carry
Defendant’s heavy burden of persuasion on mootness for several reasons.
A.

Defendants fail to establish that the documents cited have
any legal import or power to bind relevant authorities.

First, Defendants provide no basis on which this Court can assess the legal
import of either the memorandum or the DHS press statement. The White House
Counsel is not charged with the inspection and admission of aliens, is not a party to
this suit, and cannot alone bind any of Defendants to his interpretation of the EO.
As the Ninth Circuit recently stated regarding the Government’s nearly identical
arguments in Washington v. Trump, No. 17-35105 (9th Cir. 2017):
The Government has offered no authority establishing that the White House
counsel is empowered to issue an amended order superseding the Executive
Order signed by the President…, and that proposition seems unlikely.
Nor has the Government established that the White House counsel’s
interpretation of the Executive Order is binding on all executive branch
officials responsible for enforcing the Executive Order. The White House
counsel is not the President, and he is not known to be in the chain of
command for any of the Executive Departments.
Ex. A at 21-22.
Indeed, Defendants give this Court no basis on which to conclude that the
White House Counsel memorandum bears legal significance at all. At least one
court has cast doubt on the White House Counsel’s ability to bind the President to
an interpretation of a memorandum published with the White House Counsel’s
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blessing. See New York Times Co. v. U.S. Dep’t of Justice, No. 12 Civ. 3215, 2013
WL 174222, at *8 (S.D.N.Y. Jan. 7, 2013) (fact that White House Counsel
consented to Office of Legal Counsel’s publication of a memorandum “cannot be
read as the President expressly adopting [that memorandum’s] reasoning”). The
White House Counsel memorandum poses more questions than it answers. Does
the White House Counsel purport to amend the EO or bind the President to his
interpretation of the EO? Does the White House Counsel’s interpretation of the
EO supersede other interpretations previously advanced by Defendants, and—if
so—on what legal authority? Neither Defendants nor the White House Counsel’s
statement offers any insight.
The DHS “statement” on which Defendants rely is similarly unavailing.
Defendants characterize the document as a “policy statement,” ECF No. 19-1 at 2,
but they do not explain why a press release binds any DHS agent to any “policy.”
Defendants provide no evidence, for example, that adjudicators in the field—e.g.
CBP officials who would inspect Plaintiff upon his return to Atlanta HartsfieldJackson Airport—are either aware of or would be bound to implement a DHS press
release concerning the Executive Order. Cf. Broadgate Inc. v. U.S. Citizenship &
Immigration Servs., 730 F. Supp. 2d 240, 245 (D.D.C. 2010) (finding “no

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evidence” that an internal memorandum “either binds USCIS adjudicators or
requires a different outcome” than the underlying regulation).
Defendants further fail to even mention a separate DHS press release from
DHS Secretary Kelly dated January 29, 2017 and that is still available on DHS’s
website at the time of this filing. See Ex. B. That press release suggests that the
EO does apply to LPRs but that LPR status will generally be a determinative factor
in DHS’s “case-by-case determinations” under the EO. Are CBP agents to
examine DHS’s dueling press releases and determine which of them correctly
interprets the EO? Defendants again do not say. In short, Defendants provide no
basis for this Court to conclude that the memorandum or press statement have any
legal import whatsoever—much less that they combine to form the “absolutely
clear” showing required for mootness. Friends of the Earth, 528 U.S. at 190.
B.

The documents cited are part of an ever-shifting
interpretation of the EO.

Second, the memorandum and press release are best viewed as Defendants’
latest musings regarding the EO’s application to LPRs. As alleged in Plaintiff’s
complaint:
 On January 28, 2017, the acting DHS spokeswoman stated to Reuters
that the Executive Order would bar green card holders. ECF No. 1 at
¶ 65.

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 The Department of State confirmed to the press that the Executive Order
would be applied to lawful permanent residents. Id. at ¶ 66.
 On the morning of January 29, 2017, White House Chief of Staff Reince
Priebus said on national television that the Executive Order would not
“affect” green card holders “moving forward.” Id. at ¶ 67.
 Later in the day on January 29, 2017, DHS Secretary John Kelly issued a
press release indicating that the Executive Order would in fact apply to
green card holders but that “absent the receipt of significant derogatory
information” lawful permanent resident status would be “a dispositive
factor in [DHS’s] case-by-case determinations” under the Executive
Order. Id. at ¶ 68. See Ex. B.
Thus, within just the six-day period from January 27 to February 1, the
Government thus took at least three positions regarding the applicability of the EO
to LPRs. As the Ninth Circuit held, “in light of the Government’s shifting
interpretations of the Executive Order, we cannot say that the current interpretation
by White House counsel, even if authoritative and binding, will persist past the
immediate stage of these proceedings.” Ex. A at 22.2
Defendants must show that their conduct “cannot reasonably be expected to
start up again.” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1184
(11th Cir. 2007) (quotations omitted). Defendants have made no showing that the
2

Defendants recently stated to the Ninth Circuit that a new EO is forthcoming, see
ECF No. 23-2 at 4, but such an EO has not yet issued and its content is unclear
today.

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White House Counsel’s interpretation of the EO will last any longer than the other
interpretations they had previously adopted, much less the “formidable” showing
required here. Id. Plaintiff’s ability to seek an adjudication of his rights does not
rest on the Executive’s unsettled interpretation of language that it promulgated.
C.

Defendants provide no reason for their interpretive changes,
and thus no assurance that their interpretation is final.

Defendants ever-shifting interpretations of the EO are particularly
perplexing in light of a fundamental underlying fact—the EO has facially applied
to LPRs since its promulgation, and its language has never been changed. The EO
purports to suspend the entry of both “immigrants and nonimmigrants.” ECF No.
1-1 at § 3(c) (“I hereby suspend entry into the United States, as immigrants and
nonimmigrants, of such persons for 90 days from the date of this order[.]”). LPRs
are “immigrants” under the INA. See 8 U.S.C. § 1101(a)(15).
The memorandum and statement on which Defendants here rely state simply
that the relevant EO provisions “do not” apply to LPRs without any accompanying
legal analysis. See ECF No. 19-2 (“Sections 3(c) and 3(e) do not apply to
[LPRs].”); ECF No. 19-4 at 1 (“This pause does not apply to Lawful Permanent
Residents[.]”). This careful phrasing provides no legal basis for Defendants’
decision to ignore the EO’s plain language, and no reason for the government’s
apparent change of heart regarding that language. Cf. Motor Vehicle Mfrs. Ass’n of
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U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (“[A]n agency
changing its course…is obligated to supply a reasoned analysis for the change
beyond that which may be required when an agency does not act in the first
instance.”). As such, the statements provide no assurances to Plaintiff that the
interpretations will not change again at a moment’s notice or that a CBP officer
would choose those non-binding interpretations over the EO’s clear language.
Indeed, the Government has argued before the Ninth Circuit that the
President retains vast authority to engage in “the categorical, temporary suspension
the President has adopted” in the EO. Ex. C at 4. The Government has also
contended that restrictions on nationality-based discrimination against LPRs do not
impede the EO. See id. at 4-5. Defendants thus appear to believe that they could
bar Plaintiff—they are just choosing not to apply the EO’s plain language this time.
Plaintiff’s rights hang by a thread made up of Defendants’ current assurances that
they will not illegally ban him from the country without process—for the moment.
D.

The documents on which Defendants rely do not address
Plaintiff’s rights.

Finally, neither of the documents on which Defendants rely address the
rights that Plaintiff asserts in his suit. A rote conclusion that the EO “does not”
apply to LPRs does not show that Defendants believe that this EO or a subsequent
one cannot so apply. Plaintiff seeks a declaration that an EO cannot breach the
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process due to returning LPRs under law, and his right to such a declaration is not
affected by the Government’s temporary promise that the EO “does” not apply to
him now. The documents simply do not bind the Government to what Plaintiff
submits is the only legal interpretation of the INA—that the EO (and any
subsequent EO based on the same authority) cannot be applied to him as a matter
of law, not just as a matter of government whim. The documents do not, for
instance, direct Defendants’ agents to permit the entry of returning permanent
residents like Plaintiff pursuant to § 101(a)(13)(C) of the INA, 8 U.S.C. § 1101.
Until Defendants are willing to clarify that they will inspect Plaintiff pursuant to
that provision, Plaintiff still faces uncertainty regarding his return and whether
Defendants intend to respect his full legal rights.
III.

Several exceptions to mootness apply here.

Even if the Court is inclined to find that Defendants have carried their steep
burden on mootness, several mootness exception doctrines apply to Plaintiff’s case.
A.

Even if Defendants have voluntarily ceased their conduct,
the Court lacks a reasonable basis to conclude that the
conduct will not recur.

First, Defendants’ arguments in their Motion fall within the mootness
exception for voluntary cessation. “It long has been the rule that voluntary
cessation of allegedly illegal conduct does not deprive the tribunal of power to hear
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and determine the case, i.e., does not make the case moot.” Troiano v. Supervisor
of Elections in Palm Beach County, Fla., 382 F.3d 1276, 1283 (11th Cir. 2004)
(quoting Sec’y of Labor v. Burger King Corp., 955 F.2d 681, 684 (11th Cir. 1992)
(internal quotation marks omitted)). Courts must consider three factors in such
cases: “(1) whether the challenged conduct was isolated or intentional, as opposed
to a continuing and deliberate practice; (2) whether the defendant’s cessation of the
conduct was motivated by a genuine change of heart or timed to anticipate suit;
and (3) whether, in ceasing the conduct, the defendant has acknowledged liability.”
Thomas v. Branch Banking & Trust Co., 32 F. Supp. 3d 1266, 1268-69 (N.D. Ga.
2014).
Here, Defendants’ conduct was—and is—continuing and deliberate. The
EO is an intentional policy intended to circumvent the rights of LPRs, and
Defendants have only stated that they will not apply the EO as written. Even if this
Court finds that Defendants have ceased their unlawful conduct, the timing of that
cessation suggests that it was related to the numerous lawsuits filed to challenge
the EO rather than a true “change of heart.” Indeed Defendants do not fully
concede in their Motion that their conduct was ever unlawful. See ECF No. 19-1 at
6 (“if there was a question as to the applicability of the Executive Order to Plaintiff
Mr. Tawfeeq on the day he filed the instant Complaint”) (emphasis added).
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Moreover, Defendants have argued in the Ninth Circuit for broad authority that
would permit them to enforce the current EO against LPRs, or to issue further EOs
that cover LPRs. Ex. C at 4-5. Defendants’ actions establish neither a change of
heart nor an acknowledgement of liability.
Admittedly, a government is generally entitled to a presumption that once it
has voluntarily ceased an illegal action, the objectionable behavior will not recur.
Troiano, 382 F.3d at 1283. Critically, though, the government does not enjoy that
presumption until the faulty policy has been “unambiguously terminated.” Id. at
1283, 1285. As argued above, the termination here is ambiguous because the
underlying EO remains in force with language dictating that LPRs will be barred.
And even if the EO were revised to eliminate reference to immigrants, Defendants’
position in the Ninth Circuit proceeding – that the government retains expansive
powers to bar all immigrants—flies in the face of INA § 101(a)(13)(C), which
states that returning residents like Plaintiff do not seek readmission upon their
return to the United States and are treated as if they never left. Plaintiff seeks a
declaration of his rights on precisely this point of law.
And in any case, Plaintiff has given the Court ample reason to overcome any
presumption that the Government will not resume the unlawful behavior.
Defendants have taken numerous positions on the current EO and have not yet
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consistently applied their new policy. Compare, e.g., Jews for Jesus, Inc. v.
Hillsborough County Aviation Authority, 162 F.3d 627, 629-30 (11th Cir.) (finding
no reasonable expectation of a return to a prior policy when the change occurred as
a result of “substantial deliberation” and the new policy was consistently applied
for three years). Defendants’ actions before the Ninth Circuit and in the EO itself
suggest that they hope to press forward with subsequent EOs that apply to LPRs.
See ECF No. 1-1 at § 3(e) (contemplating a subsequent EO against countries to be
determined); City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 and n.
11 (1982) (finding no mootness when a city had indicated it would reenact a
challenged ordinance). These factors give the Court much more than the required
“reasonable basis” needed to conclude that the Government’s voluntary cessation
has not mooted Plaintiff’s suit. Troiano, 382 F.3d at 1285.
B.

The Government’s actions constitute conduct capable of
repetition yet evading review.

The Court should also decline to find mootness because Defendants’
conduct here fits the “capable of repetition, yet evading review” exception to
mootness. This exception requires that the Court find: (1) a reasonable expectation
or a demonstrated probability that the same controversy will recur involving the
same complaining party, and (2) the challenged action was too short in duration to
be fully litigated prior to its cessation or expiration. See News-Journal Corp. v.
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Foxman, 939 F.2d 1499, 1507 (11th Cir. 1991). Plaintiff can make such a showing
here.
First, the Government’s conduct to date gives rise to a reasonable
expectation that the conduct will recur. Defendants elsewhere argue for broad
authority to promulgate subsequent EOs that apply to LPRs. Defendants: (i) have
not made a clear statement of the law that applies to returning LPRs, (ii) cite no
authoritative instructions to their employees implementing the EO that are based
on such a legal finding, and (iii) are taking litigation positions that confirm that the
Defendants wish to reserve their rights to ignore applicable law—thus putting
Plaintiff directly at risk of further injury in a future overseas trip.
Second, Defendants appear to be trying to evade proper judicial review by
constantly shifting the playing field. Defendants clearly violated the rights of
Plaintiff and other LPRs in the days after the EO’s issuance, but they changed their
tune as soon as litigation was filed around the country. Plaintiff timely filed this
case the day after his rights were violated and almost immediately sought
expedited consideration, which Defendants opposed. Defendants issued the
documents it relies on for mootness mere days after the deluge of lawsuits. And
now Defendants have suggested they may withdraw the EO and replace it with a
new EO of unknown content but that is intended, in the words of Senior White
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House Policy Adviser Stephen Miller, to achieve the “same basic policy outcome.”
ECF No. 23-2 at 4; Ex. D.3 Defendants seek to evade judicial review through the
seriatim enactment of policies of short duration that cause tremendous harm, and
the mootness exception cited here forbids that.
C.

The Government’s misconduct is a “brooding presence” in
Plaintiff’s life.

The Supreme Court has indicated that mootness should not bar a suit when
“the challenged governmental activity…is not contingent, has not evaporated or
disappeared, and, by its continuing and brooding presence, casts what may well be
a substantial adverse effect on the interests of the petitioning parties.” Super Tire
Eng’g Co. v. McCorkle, 416 U.S. 115, 122 (1974). One court in the Eleventh
Circuit considered Super Tire in allowing a First Amendment challenge relating to
a special election even after that election had passed, based on the likelihood that
the government would hold future, similar special elections. See Hall v. Bennett,
999 F. Supp. 2d 1266, 1269-70 (M.D. Ala. 2014).
Here Defendants clearly believe that the President has the ability to
unilaterally suspend the entry of returning LPRs into the United States on a whim.
Defendants are circumventing judicial review of the EO by reinterpreting its clear
3

Should the President issue a new EO, Plaintiff contends that any mootness
arguments based on that EO should be brought as a separate motion to dismiss.
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language without withdrawing it. Plaintiff deserves to have his statutory and
constitutional rights adjudicated to avoid the “brooding presence” both for the next
90 days and from a future EO that could unilaterally bar him from the country at a
moment’s notice.
IV.

Plaintiff continues to seek meaningful relief from this Court.

Defendants contend that this Court can only now issue an “impermissible
advisory opinion” that “cannot affect the rights of the litigants” because,
Defendants claim, any ambiguity regarding Mr. Tawfeeq was “resolved—in his
favor” upon issuance of the White House Counsel’s memorandum. ECF No. 19-1
at 6. For the reasons stated above, the issues raised by the EO are far from settled.
This Court can still award numerous forms of relief for Plaintiff’s situation. For
instance, the Court could issue a declaration that Plaintiff’s rights under the INA
prevent Defendants from applying the EO to him, which would prevent Defendants
from again changing course and applying the EO to LPRs. The Court can also
award mandamus or injunctive relief requiring Defendants to issue guidance to the
ports of entry that require them to inspect LPRs under INA § 101(a)(13)(C),
regardless of this or any similar future EO to the contrary.
Defendants cite an inapposite Fourth Amendment case for the proposition
that the Plaintiff seeks only redress for future harm and that a “30 minute delay is
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not a constitutionally-cognizable injury.” ECF No. 19-1 at 7 n.3 (citing United
States v. Flores-Montano, 541 U.S. 149, 154 n.3 (2004)). That case, however,
concerned whether the Plaintiff had “some sort of Fourth Amendment right not to
be subject to delay at the international border.” Flores-Montano, 541 U.S. at 154
n.3. Mr. Tawfeeq here asserts no Fourth Amendment claims but instead complains
of violations of various statutes and of his procedural due process rights. See ECF
No. 1 at ¶¶ 105-129.
Flores-Montano suggests that the duration of a delay might impact the
analysis of whether a Fourth Amendment violation has occurred. Defendants give
the Court no reason to believe, however, that the quantity of time Mr. Tawfeeq
spent at the airport impacts his claims here, which center on statutory and due
rights. If Defendants had carried through on their threats to send Mr. Tawfeeq
back to Iraq without proper process, his rights would have been violated if
Defendants took five minutes or five days to make that decision. Here, the
government violated Mr. Tawfeeq’s clear rights—including his right to return to
the United States under 8 U.S.C. § 1101(a)(13)(C) rather than be subjected to
inquiry under the EO—the moment they told him the EO applied to him and
sought an “e-mail” concerning whether he could enter the country. ECF No. 1 at
¶ 51-54. That the e-mail arrived in 30 minutes in no way renders Defendants
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application of the EO proper. And, in any case, Mr. Tawfeeq has properly alleged
that LPRs were turned away from the United States or not permitted to board
flights bound for the United States under the EO. See ECF 1 at ¶ 69-70. Plaintiff
seeks to remedy both the harm that already has occurred and the harm currently
occurring—his inability to travel with certainty that he will be permitted to return.4
V.

Courts have largely sided against the Government’s mootness
claims.

Defendants also draw the Court’s attention to a recent District Court
decision from the District of Massachusetts in support of their mootness claims.
See ECF No. 19-1 at 6; ECF No. 19-3. That Court found no further conduct to
4

Defendants make the puzzling argument in a footnote that Plaintiff has raised “no
claims relating to any action taken by Department of State with respect to Mr.
Tawfeeq” and that the Department of State thus should be dismissed as a named
Defendant. ECF No. 19-1 at 1 n.1. That contention is incorrect, as Plaintiff has
alleged that all Defendants have and will violate his rights, see ECF No. 1 at
¶¶ 105-129, and has also alleged several facts that specifically relating to the
Department of State’s role in that scheme. See, e.g., id. at ¶¶ 27-28, 59, 66.
Moreover, while Plaintiff does not currently possess knowledge about which
Defendant bears responsibility for each of the actions taken pursuant to the EO, the
Department of State almost certainly plays at least some role in, for instance,
preventing airlines abroad from allowing LPRs on flights. See id. at ¶ 70. It will
be cold comfort to Plaintiff if the Court awards him the requested remedies as to
the DHS, but the Department of State thereafter improperly revokes his visa or
takes actions to prevent him from boarding a plane under the EO. Defendant
Department of State is a proper party here. See Fed. R. Civ. Pro. 20(a)(2).
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enjoin based on the Government’s contention that the EO would no longer be
applied to LPRs. That Court, however was deciding merely whether to extend a
previously-granted TRO—which needless to say uses under a different standard
than a motion to dismiss. And the Massachusetts Court gave no discussion
whatsoever to the practical import of the White House Counsel’s memorandum or
the serious questions regarding its legal validity raised above.
Moreover, three other Courts now have examined that memorandum and
have concluded that it does not remove LPRs from legal jeopardy. The Western
District of Washington granted a TRO despite the White House Counsel’s
memorandum. See Ex. E (government opposition arguing that plaintiffs could not
rely on injuries to LPRs in light of the White House counsel guidance); Ex. F
(granting TRO). The Ninth Circuit then upheld that TRO—again despite mootness
arguments based on the White House Counsel’s memorandum. See Ex. A at 21-22.
Those same arguments were again rejected in the Eastern District of Virginia,
which issued a preliminary injunction because “the EO presents an ongoing risk to
the status of LPRs from the seven countries covered by the EO.” See Ex. G
(memorandum in support of preliminary injunction) at 4; Ex. H (preliminary
injunction). To Plaintiff’s knowledge, all Federal Courts that have considered the

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mootness issue more fully than the Massachusetts Court have rejected Defendants’
nearly identical mootness claims.
VI.

Conclusion

For the foregoing reasons, Plaintiff requests that the Court deny Defendants’
Motion to Dismiss.
DATED February 27, 2017

Respectfully submitted,
/s/ Daniel P. Pierce
Theresia M. Moser
Georgia Bar No. 526514
Moser Law Co.
112 Krog Street N.E., Suite 26
Atlanta, Georgia 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
Fax: (202) 371-2898
champe@fragomen.com
dpierce@fragomen.com
Attorneys for Plaintiff

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CERTIFICATE OF FONT AND POINT SELECTION
Undersigned counsel hereby certifies, pursuant to L.R. 7.1(D), N.D. Ga., that
the foregoing PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION
TO DISMISS was prepared in Times New Roman, 14 point font, which is one of
the font and point selections approved in L.R. 5.1, N.D. Ga.

/s/ Daniel P. Pierce
Daniel P. Pierce
Attorney for Plaintiff

 Case 1:17-cv-00353-TCB Document 25 Filed 02/27/17 Page 27 of 27

CERTIFICATE OF SERVICE
I hereby certify that I have this day filed a true and correct copy of the
within and foregoing PLAINTIFF’S OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS by using the Court’s CM/ECF, which will automatically
send e-mail notification of this filing to the following counsel of record:
Sheetul S. Wall
Department of Justice - Office of Immigration Litigation
P.O. Box 868 Ben Franklin Station
450 5th Street N.W.
Washington, D.C. 20044
(202) 598-2668
Email: Sheetul.S.Wall2@usdoj.gov
This 27th day of February 2017.
/s/ Daniel P. Pierce
Daniel P. Pierce
Attorney for Plaintiff