Case 1:17-cv-00289-RBJ Document 21 Filed 03/06/17 USDC Colorado Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:17-cv-289-RBJ ZAKARIA HAGIG, Plaintiff, v. DONALD TRUMP, et al. Defendants. NOTICE TO THE COURT Undersigned counsel write to update this Court of significant developments since Plaintiff filed his Motion for Preliminary Injunction. ECF 16. On March 6, 2017, the President signed an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “New EO,” attached as Exhibit A). 1 The New EO, by its terms, will not take effect until March 16, 2017. See New EO, § 14. As of that date, the New EO revokes Executive Order No. 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Old EO”), see New EO, § 13, which is the subject of this litigation, and sets forth new policies that are substantially different in form and scope than the policies articulated by the Old EO, including section 3(c) of the Old EO, the enforcement of which Plaintiff requests be enjoined. See ECF 16. 1 Based on the Government’s representation to the Ninth Circuit that this New EO was forthcoming, the Ninth Circuit stayed en banc proceedings in Washington v. Trump, 17-35105 (9th Cir. Feb. 16, 2017). As of this filing, the Ninth Circuit has not yet issued a decision with respect to its call for en banc briefing from the parties, although the motions panel has issued a briefing schedule on the merits of the nationwide preliminary injunction issued by the district court enjoining enforcement of sections 3(a), 5(a), (b), (c), and (e) of the Old EO. Washington v. Trump, No. 17-cv-141 (W.D. Wash. Feb. 3, 2017). 1 Case 1:17-cv-00289-RBJ Document 21 Filed 03/06/17 USDC Colorado Page 2 of 6 Relevant to the issues before the Court, the New Executive Order (i) suspends entry for 90 days of certain foreign nationals from six of the seven countries 2 designated in the Old EO who do not hold valid visas; (ii) creates a case-by-case waiver process for those foreign nationals that is integrated into the visa application and admission process; (iii) directs a 120-day pause of certain aspects of the U.S. Refugee Admissions Program, which does not apply to refugee applicants who already have been formally scheduled for transit, and also allows for case-bycase waivers; and (iv) contains explanations in support of the newly issued policy. In light of the New EO, undersigned counsel for the Defendants respectfully inform the Court as follows: 1. First, it is the Government’s view that the New EO excludes Plaintiff from its coverage because, as of 5:00 p.m. Eastern Standard Time on Friday, January 27, 2017, Plaintiff held a valid student visa. See New EO at § 3(a). For the same reason, in the event Plaintiff leaves the United States and attempts to return, the New EO will not apply to him either. See id. The suspension of entry provisions now apply to nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen who are outside the United States on the New EO’s effective date of March 16, 2017, do not have a valid visa on that date, and did not have a valid visa as of 5:00 p.m. Eastern Standard Time on January 27, 2017. See New EO, § 3(a). The New EO specifically 2 The suspension of entry no longer applies to nationals of Iraq because, since the Old EO was issued, “the Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal.” New EO, § 1(g). Moreover, the New EO states there exists a close cooperative relationship between the United States and the Iraqi government, a strong U.S. diplomatic presence in Iraq, a significant presence of U.S. forces in Iraq, and a commitment by Iraq to combat ISIS. See id. Accordingly, the New EO provides that Iraq “presents a special case,” id., although “[d]ecisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if the applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.” Id.; see also New EO, § 4. 2 Case 1:17-cv-00289-RBJ Document 21 Filed 03/06/17 USDC Colorado Page 3 of 6 excludes from its coverage, among other things: • lawful permanent residents; • any foreign national admitted to or paroled into the United States on or after the New EO’s effective date; • any individual who has a document other than a visa, valid on the effective date of the New EO or issued anytime thereafter, that permits the individual to travel to the United States and seek entry or admission, such as advance parole; • any dual national traveling on a passport not issued by one of the six designated countries; • any foreign national traveling on diplomatic, diplomatic-type, or other specified visas; and • any foreign national who has been granted asylum, any refugee already admitted to the United States, or any individual granted withholding of removal, advance parole, or protection under the Convention Against Torture. See id., § 3(b). These provisions explicitly exclude Plaintiff, who currently has a valid student visa and had a valid student visa as of 5:00 p.m. Eastern Standard Time on January 27, 2017. 3 See ECF 16 at 3. Moreover, the New EO directs that it shall not be the basis for the revocation of any visa, and does not apply to people in the United States, including those students enrolled at one of Colorado’s colleges or universities. Id., §§ 3(a), 12(c). Thus, Plaintiff’s “ability to travel 3 Although beyond the scope of Plaintiff’s Motion for Preliminary Injunction, the New EO also includes waiver provisions for numerous categories of aliens without valid visas, including aliens who may seek to come the United States due to a relationship with a U.S. resident or institution, id., § 3(c), and once a recipient recieves such a waiver and thereafter is lawfully admitted to the United States, see 8 U.S.C. § 1101(a)(13)(A), he or she will not be required to secure another waiver in order to leave and then return to the United States. New EO § 3(b)(ii). 3 Case 1:17-cv-00289-RBJ Document 21 Filed 03/06/17 USDC Colorado Page 4 of 6 internationally,” ECF 16 at 3, is not limited in any way by the New EO and his request to enjoin enforcement of Section 3(c) of the Old EO is moot. See Diffenderfer v. Central Baptist Church of Miami, Inc., 404 U.S. 412, 414-415 (1972) (per curiam); accord Fusari v. Steinberg, 419 U.S. 379, 387-90 (1975). Furthermore, it is respectfully submitted that because the New EO expressly provides that it shall not be the basis for the revocation of any visa, and does not apply to people in the United States, the New EO falls outside of the Western District of Washington’s nationwide injunction. Accordingly, undersigned counsel respectfully submit that nothing in the Western District of Washington’s current nationwide injunctive order precludes the Executive Branch from enforcing the terms of the New EO as of its effective date, March 16, 2017. 2. Second, following the filing of the Notice, undersigned counsel will contact Plaintiff’s counsel to meet and confer concerning a dismissal of this case. 3. Third, given the foregoing, the Government respectfully submits that the New EO does not present a need for emergency, expedited litigation. The concerns relied upon by Plaintiff in bringing this action are no longer at issue. Indeed, by its own terms, the new EO will not apply to Plaintiff and similarly-situated foreign nationals from the six countries because they are not aliens who: (a) are outside the United States on the effective date of the new EO; (b) did not have a valid visa at 5 p.m. Eastern Standard Time on January 27, 2017; and (c) do not have a valid visa on the effective date of the new EO. See New EO, § 3. As to those individuals from the six countries covered by the New EO – i.e. covered aliens overseas without a valid visa – applying for visas prospectively, the Government notes that the visa application and approval process can often be a lengthy one, and the type of temporary pause in entry directed by the New EO will not cause immediate harm where applicants have no entitlement to a visa or travel 4 Case 1:17-cv-00289-RBJ Document 21 Filed 03/06/17 USDC Colorado Page 5 of 6 document and normally may wait a period of months or longer for ultimate approval and issuance of a visa or travel document if found eligible. Notably, however, no such individuals are at issue in this litigation at this time, and even if they were, the New EO provides robust waiver authority under which such individuals may seek relief if they wish to travel to the United States. Thus, the Government respectfully submits that, to the extent Plaintiff has any basis to challenge the New EO, proceedings in this matter should proceed in a manner to allow this Court a more complete opportunity to assess any constitutional claims plaintiff may have concerning the provisions of the New EO. Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General Civil Division WILLIAM PEACHEY Director Civil Division, Office of Immigration Litigation GISELA A. WESTWATER Assistant Director STACEY YOUNG Senior Litigation Counsel By: DATE: March 6, 2017 /s/ Adrian M. Pandev________________ ADRIAN M. PANDEV Trial Attorney Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 598-2648 Fax: (202) 305-7000 Email: adrian.m.pandev@usdoj.gov ATTORNEYS FOR DEFENDANTS 5 Case 1:17-cv-00289-RBJ Document 21 Filed 03/06/17 USDC Colorado Page 6 of 6 CERTIFICATE OF SERVICE I hereby certify that on March 6, 2017, I electronically filed the foregoing Notice using the Court’s CM/ECF system, causing a notice of filing to be served upon all counsel of record. Dated: March 6, 2017 /s/ Adrian M. Pandev__________ ADRIAN M. PANDEV Trial Attorney 6