Case 1:17-cv-00353-TCB Document 33 Filed 03/23/17 Page 1 of 42

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”);
REX WAYNE TILLERSON,
Secretary of State, Department of State.
Defendants.

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Case No. 1:17-cv-353-TCB

AMENDED
COMPLAINT FOR
DECLARATORY,
MANDAMUS, AND
INJUNCTIVE RELIEF

INTRODUCTION
1.

Plaintiff Mohammed Abdullah Tawfeeq is an Iraqi national, an award-

winning Middle Eastern journalist, and now a News Desk Producer and Field
Producer for Cable News Network, Inc. (“CNN”). While now based permanently
in the United States, as part of his regular duties, Mr. Tawfeeq travels abroad to
conduct reporting on the ground from the Middle East.
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2.

Since 2013, Mr. Tawfeeq has been a lawful permanent resident of the

United States and has entered the United States on numerous occasions without
incident.
3.

Mr. Tawfeeq has been a crucial part of CNN’s reporting regarding

North Africa and the Middle East for over a decade. He has filed hundreds of
reports from the field, has worked alongside prominent CNN journalists such as
Christiane Amanpour and Anderson Cooper, and has covered numerous major
world events such as the withdrawal of U.S. troops from Iraq, the fall of Muamar
Quadafi in Libya, and the rise of ISIS.
4.

On January 27, 2017, President Donald J. Trump signed Executive

Order (“EO”) No. 13,769, entitled “Protecting the Nation from Foreign Terrorist
Entry Into the United States.” See Ex. A (82 Fed. Reg. 8977 (Jan. 27, 2017)).
That EO purported to order the immediate suspension of every “entry into the
United States” by alien nationals of one of several countries for a period of 90 days.
That EO specifically applied on its face to entries by “immigrants” (i.e. lawful
permanent residents or green card holders) from Iraq, like Mr. Tawfeeq.
5.

Beginning on the night of January 27, 2017, on information and belief

Defendants began barring or otherwise impairing the entry of immigrants from the
listed countries, including Iraq. On January 29, 2017, Defendants on information
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and belief used Executive Order No. 13,769 as the sole basis for detaining Mr.
Tawfeeq and subjecting him to additional immigration-related screening at Atlanta
Hartsfield/Jackson International Airport, which delayed his entry into the United
States. On information and belief, Defendants made a determination under
Executive Order No. 13,769 concerning whether they would exercise their
discretion to permit Mr. Tawfeeq to enter the United States, instead of treating him
as a “returning resident” as required by law.
6.

On January 30, 2017, Plaintiff filed his initial Complaint. Plaintiff

averred that—whatever the validity of Executive Order No. 13,769 as applied to
aliens visiting temporarily—the application of that EO to lawful permanent
residents like Mr. Tawfeeq returning after a brief trip abroad violated the
Immigration and Nationality Act (“INA”), the Administrative Procedure Act
(“APA”), and the U.S. Constitution.
7.

Shortly after Plaintiff filed his Complaint, the White House Counsel

and Defendant Secretary of the Department of Homeland Security John F. Kelly
claimed that Executive Order No. 13,769 either would not be applied or did not
apply to lawful permanent residents like Mr. Tawfeeq. The text of Executive
Order No. 13,769 still applied to “immigrants,” however, and was not altered.

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8.

Defendants’ implementation of certain sections of Executive Order

No. 13,769 was eventually halted by various courts around the country, including
most notably by a temporary restraining order from the Western District of
Washington that was upheld on appeal by the Ninth Circuit. See Washington v.
Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017);
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017).
9.

Then, on March 6, 2017, President Trump signed Executive Order No.

13,780, which is also called “Protecting the Nation from Foreign Terrorist Entry
into the United States.” See Ex. B (82 Fed. Reg. 13209 (Mar. 6, 2017)). Executive
Order No. 13,780 took effect on March 16, 2017 and revoked Executive Order No.
13,769. Id. at § 13, 14.
10.

Executive Order No. 13,780 again purports to suspend the entry of

nationals of various countries from the United States. See Ex. B at page 8 at § 2.
Unlike the prior EO, however, Executive Order No. 13,780 does not include Iraq
among the list of countries whose nationals would be barred outright. See Ex. B at
page 6 § 1(f) (imposing a “temporary pause on the entry of nationals from Iran,
Libya, Somalia, Sudan, Syria, and Yemen”).
11.

Nevertheless, Executive Order No. 13,780 does contain provisions

relating to Iraqis that continue to harm Mr. Tawfeeq by, inter alia, impairing his
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ability to travel freely into the United States. See, e.g., Ex. B at page 6 § 1(g). In
particular, the Executive Order requires that “[a]n application by any Iraqi national
for a visa, admission, or other immigration benefit should be subject to thorough
review.” Id. at § 4.
12.

Other sections of Executive Order No. 13,780 exclude lawful

permanent residents from the ambit of the categorical suspension of entry. See,
e.g., Ex. B at page 10 § 3(b)(i) (excepting “any lawful permanent resident” from
the “suspension of entry pursuant to section 2” of the EO). By contrast, the
provisions of the EO relating to Iraqi nationals—particularly § 1(g) and § 4 of the
EO—apply facially to all Iraqi nationals regardless of whether they are
longstanding lawful permanent residents like Mr. Tawfeeq or are seeking a
temporary visa for the first time. The exclusion of lawful permanent residents in
Executive Order No. 13,780 does not apply, by its terms, to Iraqi nationals.
13.

At the time of this Complaint’s filing, at least two courts have

enjoined portions of Executive Order No. 13,780. See Ex. C (State of Hawaii v.
Trump -- Order Granting TRO) and Ex. D (International Refugee Assistance
Project v. Trump -- Order Granting TRO). To Plaintiff’s knowledge, however, no
Court has enjoined the EO sections relating to Iraqi nationals, including sections
1(g) and 4 of that EO.
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14.

Sections 1(g) and 4 of Executive Order No. 13,780 entered into full

force and effect on March 16, 2017 by their clear terms. Those provisions require
Defendants to apply “additional scrutiny” to Iraqis and to subject Iraqis to
“thorough review” for ties to terrorism or threats to national security and public
safety. Ex. B at §§ 1(g), 4.
15.

The threats to Mr. Tawfeeq’s ability to return to the United States

unimpeded, as is his right under the U.S. immigration laws, thus persists despite
the issuance of Executive Order No. 13,780.
16.

Lawful permanent residents (i.e. immigrants) like Mr. Tawfeeq are

entitled under the INA to greater procedural protections than aliens visited
temporarily (i.e. non-immigrants).
17.

Congress has by statute laid out careful guidance concerning when

and how lawful permanent residents such as Mr. Tawfeeq can be removed from the
country, and the Federal Courts have on numerous occasions noted that such
residents are entitled to robust constitutional protections.
18.

Both Executive Order No. 13,769 and Executive Order No. 13,780

have greatly increased the uncertainty involved in current and future international
travel for returning Iraqi lawful permanent residents like Mr. Tawfeeq.

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19.

Further clarification of the law by the Federal Courts is clearly

required to ensure that Executive Order No. 13,780 is not improperly applied to
returning Iraqi lawful permanent residents like Mr. Tawfeeq.
20.

Application of Executive Order No. 13,780 to Mr. Tawfeeq exceeds

Defendants’ authority under the INA because, under the INA, Congress has not
provided the immigration agencies with legal authority to prevent or impede the
return of lawful permanent resident aliens like Mr. Tawfeeq into the United States.
21.

Mr. Tawfeeq seeks (i) a declaration of his rights under the

Immigration and Nationality Act; (ii) a declaration that Defendants are violating
his rights under the Administrative Procedure Act; (iii) a declaration that
Defendants are violating his rights under the U.S. Constitution; (iv) an injunction
against the application of Executive Order No. 13,780 to returning Iraqi
immigrants like Mr. Tawfeeq; (v) a writ of mandamus instructing DHS to instruct
its employees inspecting aliens at U.S. ports of entry to exclude returning Iraqi
resident immigrants such as Mr. Tawfeeq from Executive Order No. 13,780; and
(vi) any other appropriate remedies to which the Court determines that he is
entitled.
PARTIES

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22.

Plaintiff Mohammed Abdullah Tawfeeq was born in 1971 in Iraq and

is an Iraqi citizen. Mr. Tawfeeq was resettled as refugee in the United States and,
on June 20, 2013, Mr. Tawfeeq became a lawful permanent resident in the United
States.
23.

Defendant U.S. Department of Homeland Security (“DHS”) is a

federal agency bearing responsibility for the administration and enforcement of the
nation’s immigration laws.
24.

Defendant John F. Kelly is sued in his official capacity as Secretary of

DHS, in which capacity he is charged with the just administration and enforcement
of the immigration laws. 8 U.S.C. § 1103(a).
25.

Defendant U.S. Customs and Border Protection (“CBP”), a agency

within DHS, is responsible for detecting and preventing the unlawful entry of
persons and goods into the United States.
26.

Defendant Kevin A. McAleenan is the Acting Commissioner of CBP

and is sued in his official capacity.
27.

On information and belief, Defendant Carey Davis is CBP’s Port

Director for Atlanta and is sued in his official capacity. On information and belief,
he is responsible for the processing of aliens arriving to the United States through
Atlanta Hartsfield/Jackson International Airport.
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28.

On information and belief, Defendant Andy Pryor is a Manager of

CBP’s Atlanta Port and is sued in his official capacity. On information and belief,
he is responsible for the processing of aliens arriving to the United States through
Atlanta Hartsfield/Jackson International Airport.
29.

On information and belief, Defendant Shana Wells is a Manager of

CBP’s Atlanta Port and is sued in her official capacity. On information and belief,
she is responsible for the processing of aliens arriving to the United States through
Atlanta Hartsfield/Jackson International Airport.
30.

Defendant U.S. Department of State is a federal agency bearing

responsibility for the administration and enforcement of the immigration laws.
31.

Defendant Rex Wayne Tillerson is sued in his official capacity as

Secretary of State.
JURISDICTION AND VENUE
32.

The Court has jurisdiction over this matter pursuant to 28 U.S.C.

§ 1331. See Califano v. Sanders, 430 U.S. 99, 105 (1977) (except where statutes
preclude review, 28 U.S.C. § 1331 “confer[s] jurisdiction on federal courts to
review agency action”). See also 5 U.S.C. § 702; 28 U.S.C. § 1361; 28 U.S.C.
§§ 2201–2202.

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33.

Defendants have a non-discretionary duty to inspect for return to the

United States lawful permanent residents eligible for treatment as “returning
residents” and not otherwise barred. Because this duty is not discretionary, neither
the immigration laws (see, e.g., 8 U.S.C. § 1252(a)(2)(B)(ii)) nor the
Administrative Procedure Act (“APA”) withdraws jurisdiction.
34.

The aid of the Court is invoked under 28 U.S.C. §§ 2201 and 2202,

authorizing declaratory judgment.
35.

Plaintiff seeks costs and attorneys fees pursuant to the Equal Access

to Justice Act, 5 U.S.C. § 504, and 28 U.S.C. § 2412(d), et seq.
36.

Venue properly lies in this judicial district under 28 U.S.C. § 1391(e).

Defendants are agencies and officers of agencies of the United States sued in their
official capacities. As such, venue is proper because a substantial part of the
events or omissions giving rise to these claims occurred in this District. Venue is
also proper because Plaintiff resides in this District, and no real property is
involved in this action.

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EXHAUSTION OF REMEDIES
37.

Plaintiff has no other adequate remedy available for the harm that he

seeks to redress—the application by Defendants DHS and CBP of Executive Order
No. 13,780 to returning resident immigrants such as Plaintiff.
FACTS
38.

Plaintiff Mohammed Abdullah Tawfeeq was born in 1971 in Iraq and

is a citizen of Iraq.
39.

Mr. Tawfeeq was resettled as a refugee in the United States because

of direct threats against him in Iraq because of his work as a reporter.
40.

On June 20, 2013, the United States government made Mr. Tawfeeq a

lawful permanent resident. The green card in his possession expires on January 11,
2026.
41.

Mr. Tawfeeq owns a condominium in Atlanta, Georgia.

42.

Mr. Tawfeeq’s brother is an American citizen and lives in Kentucky.

43.

Mr. Tawfeeq is a journalist by trade. He has over 10 years of

experience as an international news editor and producer specializing in the Middle
East and North Africa (MENA) region.

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44.

Mr. Tawfeeq has covered several significant historical events within

that region, including the U.S.-led invasion of Iraq and subsequent sectarian
violence, the toppling of Muamar Quadafi in Libya, and the rise of ISIS.
45.

Since 2004, Mr. Tawfeeq has worked for Cable News Network, Inc.

(“CNN”). He worked for CNN first as a freelancer before being hired as a fulltime employee in 2006.
46.

Mr. Tawfeeq has been placed on CNN special assignments along the

Syria-Lebanon border and in Jordan, Saudi Arabia, and Libya.
47.

From February 2004 to November 2011, Mr. Tawfeeq was a Field

Producer for CNN. In that capacity, he contributed to hundreds of CNN stories in
the field and to several specials with CNN reporters and anchors including
Christiane Amanpour and Anderson Cooper.
48.

From December 2011 to June 2013, Mr. Tawfeeq was CNN’s

Baghdad Bureau Chief. In that capacity, he oversaw all managerial duties of
CNN’s Baghdad office and produced countless stories concerning topics such as
the U.S. troop withdrawal from Iraq.
49.

In July 2013, Mr. Tawfeeq was transferred to CNN’s U.S. offices in

Atlanta. He was a news editor through February 2016, when he became an

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International Desk Producer. He is currently a News Desk Producer and Field
Producer.
50.

While Mr. Tawfeeq primarily performs his duties from the United

States, he must still regularly travel to the Middle East to facilitate CNN’s
reporting there.
51.

On October 17, 2016, Mr. Tawfeeq left the United States bound for

Iraq. After completing an assignment for CNN in northern Iraq, Mr. Tawfeeq
spent time with family members in that country.
52.

On January 29, 2017 at approximately 9:05am local time, Mr.

Tawfeeq departed from Baghdad, Iraq en route to Atlanta, Georgia, with a layover
in Istanbul, Turkey.
53.

On January 29, 2017 at approximately 7:20pm Eastern Standard Time,

Mr. Tawfeeq landed at Atlanta Hartsfield/Jackson International Airport.
54.

When Mr. Tawfeeq presented himself for inspection at Atlanta

Hartsfield/Jackson International Airport, the CBP officer in primary inspection
notified him that he could be refused entry under the President’s then-recentlysigned Executive Order No. 13,769.
55.

That CBP official scanned his passport and green card, asked Mr.

Tawfeeq why he was in Iraq for such a long period of time, asked whether his trip
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to Iraq was for business or to visit family, and asked what he did for a living. Mr.
Tawfeeq was then sent to secondary inspection
56.

CBP officials then told Mr. Tawfeeq to wait because they needed to

seek “an e-mail” concerning whether he would be allowed into the United States.
57.

After approximately 30 minutes of waiting, CBP officials at the

airport asked Mr. Tawfeeq whether he had ever been fingerprinted. Mr. Tawfeeq
told officials that he had been repeatedly fingerprinted by the U.S. government
when embedded with the U.S. military in Iraq.
58.

CBP officials came back to Mr. Tawfeeq a few minutes later and

indicated that he was free to enter the United States.
59.

CBP officials gave Mr. Tawfeeq no explanation for their decision, no

documents relating to his entry, nor did they stamp his passport.
Executive Order No. 13,769
60.

On January 27, 2017, President Donald J. Trump signed Executive

Order No. 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry
Into the United States.” See Ex. A (82 Fed. Reg. 8977 (Jan. 27, 2017)).
61.

Executive Order No. 13,769 purported to rest on “authority

vested…as President by the Constitution and laws of the United States of America,

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including the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et. seq, and
section 301 of title 3, United States code.” Ex. A at page 1.
62.

Executive Order No. 13,769 also imposed a 90-day ban on entry into

the United States by aliens of certain nationalities:
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).
Ex. A at page 3 § 3(c) (emphasis added). Under the INA, the term “immigrants”
refers to lawful permanent resident aliens, such as Mr. Tawfeeq.
63.

Executive Order No. 13,769 included Iraq on the list of countries

whose aliens were prohibited from “entry” into the United States for 90 days from
the signing of that EO. See INA § 217(a)(12)(A)(i)(I), 8 U.S.C.
§ 1187(a)(12)(A)(i)(I).
64.

On its face, Executive Order No. 13,769 applied to immigrants like

Mr. Tawfeeq.

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65.

On information and belief, Defendant DHS originally determined that

it could not legally apply Executive Order No. 13,769 to all lawful permanent
residents.
66.

On information and belief, the staff of President Donald J. Trump

overruled DHS’s legal determination, and DHS subsequently applied Executive
Order No. 13,769 to lawful permanent residents as well as to non-immigrants.
67.

The spokeswoman for Defendant DHS told the Reuters news agency

on January 28, 2017, that Executive Order No. 13,769 would be applied to bar
lawful permanent residents from entering the United States.
68.

The Department of State also confirmed to the press that Executive

Order No. 13,769 would be applied to bar lawful permanent residents from
entering the United States.
69.

The President’s Chief of Staff, Reince Priebus, appeared to contradict

Defendant agencies on the applicability of Executive Order No. 13,769 to lawful
permanent residents, stating on Meet the Press on January 29, 2017: “As far as
green card holders moving forward, [Executive Order No. 13,769] doesn’t affect
them.”
70.

DHS Secretary John Kelly issued a press release on January 29, 2017

that stated:
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In applying the provisions of the president's executive order, I hereby deem
the entry of lawful permanent residents to be in the national interest.
Accordingly, absent the receipt of significant derogatory information
indicating a serious threat to public safety and welfare, lawful permanent
resident status will be a dispositive factor in our case-by-case
determinations.
Ex. E. As of the filing of this Amended Complaint, that press release is still
available on DHS’s website.
71.

Then, on February 1, 2017, White House Counsel Donald F. McGahn

II issued a document entitled “MEMORANDUM TO THE ACTING
SECRETARY OF STATE, THE ACTING ATTORNEY GENERAL, AND THE
SECRETARY OF HOMELAND SECURITY.” That document had a subject line
of “Authoritative Guidance on Executive Order Entitled ‘Protecting the Nation
from Foreign Terrorist Entry into the United States’ (Jan. 27, 2017).” See Ex. F.
72.

The White House Counsel’s memorandum stated in part:

I understand that there has been reasonable uncertainty about whether
[Sections 3(c) and 3(e) of Executive Order No. 13,769] 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 immediately convey this interpretive guidance to all
individuals responsible for the administration and implementation of the
Executive Order.
Ex. F at page 1.

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73.

The White House Counsel’s statement did not explain the legal basis

on which the White House Counsel issued the purported “authoritative guidance”
or which of Defendants that guidance would legally bind.
74.

On February 3, 2017, Defendant DHS issued a document from its

Office of the Press Secretary entitled “Statement on Countries Currently
Suspended from Travel to the United States.” Ex. G at page 1.
75.

That document stated in part:

To ensure that the U.S. government can conduct a thorough analysis of the
national security risks faced by our immigration system, the Executive Order
imposes a 90-day pause on the entry into the United States of nationals from
Iraq, Syria, Sudan, Iran, Somalia, and Yemen. This pause does not apply to
Lawful Permanent Residents[.]
Ex. G at page 2.
76.

Despite these varying views by Defendants and other U.S.

government officials concerning the applicability of Executive Order No. 13,769,
the language in that Executive Order was not changed from the date of its signing
through its revocation on March 16, 2017.
77.

Various Federal Courts considered legal challenges to Executive

Order No. 13,769 between January 27, 2016 and March 16, 2017. Several of those
Courts issued temporary restraining orders and other injunctions that prevented
Defendants from full implementation of that Order. See, e.g., Washington v.
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Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017);
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017).
78.

On information and belief, Defendants applied Executive Order No.

13,769 to encumber or bar the entry of numerous lawful permanent residents from
the United States at various ports of entry in the United States, including Atlanta
Hartsfield/Jackson International Airport, before March 16, 2017.
79.

On information and belief, Defendants also spoke about Executive

Order No. 13,769 to international airlines, which resulted in the prevention of
certain lawful permanent residents from boarding flights bound for the United
States, including flights bound for Atlanta Hartsfield/Jackson International Airport,
before March 16, 2017.
Executive Order No. 13,780
80.

On March 6, 2017, President Trump signed Executive Order No.

13,780, which is also called “Protecting the Nation from Foreign Terrorist Entry
into the United States.” See Ex. B (82 Fed. Reg. 13209 (Mar. 6, 2017)).
81.

Executive Order No. 13,780 took effect on March 16, 2017 and

concurrently revoked Executive Order No. 13,769. Ex. B at page 19 §§ 13, 14.

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82.

Executive Order No. 13,780 again purports to suspend temporarily the

entry of certain nationals of six countries, Iran, Libya, Somalia, Sudan, Syria, and
Yemen. See Ex. B at §§ 1(e-f), 2.
83.

Unlike the prior EO, however, Executive Order No. 13,780 provides

an exception to the temporary suspension of entry with respect to, inter alia, lawful
permanent residents from the affected six countries. See Ex. B at § 3(b) (“The
suspension of entry pursuant to section 2 of this order shall not apply to: (i) any
lawful permanent resident o the United States[.]”).
84.

Unlike the prior EO, Executive Order No. 13,780 does not purport to

suspend the entry of all Iraqi nationals. See Ex. B at §§ 1(e-f), 2.
85.

Instead, Executive Order No. 13,780 contains two provisions

primarily directed at Iraqi nationals. Section 1(g) of Executive Order No. 13,780
states:
(g) Iraq presents a special case. Portions of Iraq remain active combat
zones. Since 2014, ISIS has had dominant influence over significant territory
in northern and central Iraq. Although that influence has been significantly
reduced due to the efforts and sacrifices of the Iraqi government and armed
forces, working along with a United States-led coalition, the ongoing
conflict has impacted the Iraqi government’s capacity to secure its borders
and to identify fraudulent travel documents. Nevertheless, the close
cooperative relationship between the United States and the democratically
elected Iraqi government, the strong United States diplomatic presence in
Iraq, the significant presence of United States forces in Iraq, and Iraq's
commitment to combat ISIS justify different treatment for Iraq. In particular,
those Iraqi government forces that have fought to regain more than half of
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the territory previously dominated by ISIS have shown steadfast
determination and earned enduring respect as they battle an armed group
that is the common enemy of Iraq and the United States. In addition, since
Executive Order 13769 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. Decisions
about issuance of visas or granting admission to Iraqi nationals should be
subjected to additional scrutiny to determine if applicants have
connections with ISIS or other terrorist organizations, or otherwise pose a
risk to either national security or public safety.
Ex. B at page 6 § 1(g) (emphasis added).
86.

Section 4 of Executive Order No. 13,780 states:

Sec. 4. Additional Inquiries Related to Nationals of Iraq. An application by
any Iraqi national for a visa, admission, or other immigration benefit
should be subjected to thorough review, including, as appropriate,
consultation with a designee of the Secretary of Defense and use of the
additional information that has been obtained in the context of the close
U.S.-Iraqi security partnership, since Executive Order 13769 was issued,
concerning individuals suspected of ties to ISIS or other terrorist
organizations and individuals coming from territories controlled or formerly
controlled by ISIS. Such review shall include consideration of whether the
applicant has connections with ISIS or other terrorist organizations or with
territory that is or has been under the dominant influence of ISIS, as well as
any other information bearing on whether the applicant may be a threat to
commit acts of terrorism or otherwise threaten the national security or
public safety of the United States.
Ex. B at page 13 § 4 (emphasis added).
87.

No section of Executive Order No. 13,780 removes Iraqi lawful

permanent residents like Plaintiff from the “additional scrutiny” contemplated in
§ 1(g) of that EO.
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88.

No section of Executive Order No. 13,780 removes Iraqi lawful

permanent residents like Plaintiff from the “thorough review” contemplated in § 4
of that EO.
89.

No section of Executive Order No. 13,780 imposes “additional

scrutiny” or “thorough review” on lawful permanent residents from Iran, Libya,
Somalia, Sudan, Syria, or Yemen.
90.

Lawful permanent residents from Iraq are thus subject to scrutiny and

review above and beyond that imposed on lawful permanent residents from
countries whose residents the President saw fit to temporarily ban from entry.
91.

On information and belief, Defendants have and will continue to

implement additional screening procedures of the type contemplated by sections
1(g) and 4 of Executive Order No. 13,780 on lawful permanent residents from Iraq.
Executive Order No. 13,780 Cannot Legally Be Applied to
Returning Lawful Permanent Residents Like Plaintiff
Whom the Statute Does Not Even Treat as Seeking Admission
92.

Section 212(f) of the INA states:
(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any
class of aliens into the United States would be detrimental to the
interests of the United States, he may by proclamation, and for such
period as he shall deem necessary, suspend the entry of all aliens or
any class of aliens as immigrants or nonimmigrants, or impose on the
entry of aliens any restrictions he may deem to be appropriate.
Whenever the Attorney General finds that a commercial airline has
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failed to comply with regulations of the Attorney General relating to
requirements of airlines for the detection of fraudulent documents
used by passengers traveling to the United States (including the
training of personnel in such detection), the Attorney General may
suspend the entry of some or all aliens transported to the United
States by such airline.
8 U.S.C. § 1182(f).
93.

Historically the President has exercised his authority under INA

§ 212(f) to ban discrete groups of aliens, such as those participating in human
rights abuses in other countries, or those leaving from their home countries for the
United States without a visa or other authorization to enter.
94.

On information and belief, prior to January 2017, no President had

ever suspended all aliens from an entire country from entering the United States
under Section 212(f), much less from numerous countries as Executive Order No.
13,769 purported to do and as Executive Order No. 13,780 purports now to do.
95.

A report summarizing previous exercises of the President’s authority

under this section, prepared by the Congressional Research Service and dated
January 23, 2017, identifies no instance of a prior exercise of this authority in so
broad a manner. See Kate M. Manuel, Executive Authority to Exclude Aliens: In
Brief, Congressional Research Service (Jan. 23, 2017), available at
https://fas.org/sgp/crs/homesec/R44743.pdf.
96.

INA § 212(f) has been a part of the INA since its enactment in 1952.
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97.

In 1996—long after the addition of INA § 212(f), Congress made

several overhauls to the INA. See Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, P.L. 104-208, Div. C (“IIRAIRA”).
98.

Among those overhauls in IIRAIRA, Congress eliminated the concept

of “entry” and provided in its place a new definition for “admission” and
“admitted” at 8 U.S.C. § 1101(a)(13).
99.

That provision draws a distinction between “applicants for

admission”—such as all nonimmigrants and some immigrants—and returning
lawful permanent resident alien aliens, like Mr. Tawfeeq, who are not deemed to
be seeking admission. See 8 U.S.C. § 1101(a)(13)(C).
100. Specifically, a lawful permanent resident returning from abroad is not
an applicant for “admission” unless that resident:
(i)
(ii)
(iii)
(iv)

(v)

(vi)

has abandoned or relinquished that status
has been absent from the United States for a continuous period
in excess of 180 days,
has engaged in illegal activity after having departed the United
States,
has departed from the United States while under legal process
seeking removal of the alien from the United States, including
removal proceedings under this chapter and extradition
proceedings,
has committed an offense identified in section 1182(a)(2) of this
title, unless since such offense the alien has been granted relief
under section 1182(h) or 1229b(a) of this title, or
is attempting to enter at a time or place other than as
designated by immigration officers or has not been admitted to
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the United States after inspection and authorization by an
immigration officer.
8 U.S.C. § 1101(a)(13)(C)(i-vi).
101. The Federal Courts have since equated the pre-1996 concept of
“entry,” over which INA § 212(f) provides authority to the President, with current
law’s concept of “admission,” which does not apply to returning lawful permanent
immigrants such as Mr. Tawfeeq. This line of cases does so in part by construing
8 U.S.C. § 1101(a)(13)(A)’s definition of “admission,” which incorporates the
term “entry.”
102. Mr. Tawfeeq did not abandon or relinquish his lawful permanent
residence status before returning to the United States on January 29, 2017.
103. Mr. Tawfeeq was not absent from the United States for a continuous
period in excess of 180 days before returning to the United States on January 29,
2017.
104. Mr. Tawfeeq did not engage in illegal activity after departing the
United States and before returning to the United States on January 29, 2017.
105. Mr. Tawfeeq has never departed from the United States while under
legal process seeking his removal.
106. Mr. Tawfeeq has never committed a criminal offense identified in 8
U.S.C. § 1182(a)(2).
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107. Mr. Tawfeeq last sought to return to the United States through Atlanta
Hartsfield/Jackson International Airport on January 29, 2017. He did not then
attempt and has never attempted to enter the United States at a time or place other
than as designated by immigration officers and has never been admitted to the
United States without inspection or authorization by an immigration officer.
108. Because he was a returning lawful permanent resident alien who met
none of the disqualifying conditions described in 8 U.S.C. § 1101(a)(13)(C)(i-vi),
Mr. Tawfeeq did not on January 29, 2017 seek “admission” to the United States of
America.
109. Through the elimination of the concept of “entry” and the addition of
8 U.S.C. § 1101(a)(13)(C) in 1996, and with full knowledge of the terms of INA
Section 212(f) as enacted in 1952, Congress has determined that the President’s
ability to ban the entry of certain aliens under INA § 212(f) does not extend to
returning lawful permanent residents as described in 8 U.S.C. § 1101(a)(13)(C).
110. The President’s INA § 212(f) authority therefore cannot be applied to
returning residents who by law do not seek “admission” as set forth in 8 U.S.C.
§ 101(a)(13)(C), and therefore Defendants may not implement the Executive Order
in a manner that includes Plaintiff.

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111. Defendants, by their prior actions and public statements regarding
Executive Order No. 13,769, however, have indicated their intention to disregard 8
U.S.C. 1101(a)(13)(C), and to apply INA § 212(f) in an overly broad manner, and
thus the assistance of this Court is requested, through the relief requested herein.
112. On information and belief, CBP admitted Mr. Tawfeeq on January 29,
2017, based on an improper analysis of whether he was entitled to a case-by-case
exception to Executive Order No. 13,769.
113. On information and belief, CBP did not admit Mr. Tawfeeq on
January 29, 2017, based on a proper analysis under INA § 101(a)(13)(C). Such an
analysis would have required the conclusion that Mr. Tawfeeq was not an alien
seeking “admission” into the United States.
114. On information and belief, if Mr. Tawfeeq were to leave and return to
the United States today, he would be subjected to impermissible additional
questioning and screening under the provisions of Executive Order No. 13,780
relating to nationals of Iraq. That screening could impede or bar his return from
the United States.
Application of Executive Order No. 13,780
to Returning Lawful Permanent Residents
Like Plaintiff Violate Their Due Process Rights

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115. Application of Executive Order No. 13,780 to returning lawful
permanent residents like Plaintiff also violates their rights to statutory process
under the INA, as well as their procedural due process rights under the U.S.
Constitution.
116. Once lawful permanent residents present themselves for inspection at
a port of entry, they cannot lawfully be removed from the United States without
due process of law.
117. The INA provides carefully crafted statutory mechanisms whereby
aliens can be removed. Some of those mechanisms with the least amount of
process, such as “expedited removal” under INA § 235, cannot be applied at all to
lawful permanent residents. See 8 U.S.C. § 1225; 8 C.F.R. § 235.3(b)(5)(ii).
118. At a minimum, a lawful permanent resident presenting himself at a
port is entitled to the robust removal procedures under INA § 240. See 8 U.S.C.
§ 1229a. At such a removal hearing, Defendants would bear the burden of
showing that the lawful permanent resident should be removed and would be
required to state the basis for that removal. Such removal would be subject to
administrative appellate review, and to further review in the Federal Courts.
119. Courts have long recognized that lawful permanent residents,
including those returning from trips abroad, are entitled to Fifth Amendment due
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process protections. See, e.g., Kwong Hai Chew v. Colding, 344 U.S. 590, 601
(1953) (“While it may be that a resident alien's ultimate right to remain in the
United States is subject to alteration by statute or authorized regulation because of
a voyage undertaken by him to foreign ports, it does not follow that he is thereby
deprived of his constitutional right to procedural due process. His status as a
person within the meaning and protection of the Fifth Amendment cannot be
capriciously taken from him.”).
120. Application of Executive Order No. 13,780 could deprive lawful
permanent immigrants the process to which they are entitled by both the INA and
the Constitution.
121. INA § 212(f) does not allow the President or Defendants to override
the INA’s carefully crafted procedural protections, including the right for a lawful
permanent resident to challenge his removability in a proceeding under INA § 240.
122. Nevertheless, on information and belief, Defendants have reserved for
themselves the right to condition or refuse the return of lawful permanent residents
like Mr. Tawfeeq, for example based on information provided by the Secretary of
Defense, in violation of these statutory protections and without the procedural
hearing required by INA § 240 and the process mandated by the Constitution.
Such a result is ultra vires because the INA provides the Secretary of Defense with
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no role in the admission or inspection process for returning lawful permanent
resident aliens.
123. Application of either Executive Order No. 13,769 or Executive Order
No. 13,780 to Plaintiff would rob him of the procedural protections due him under
the INA. The Executive Orders provide Plaintiff with no way of avoiding
additional screenings and delays at airports or any removal or other encumbrance
to travel based on that additional screening. Such a mechanism is constitutionally
infirm and statutorily prohibited.
124. Nevertheless, on information and belief, Defendants improperly did
admit Plaintiff pursuant to the Executive Order No. 13,769 on January 29, 2017
and would impermissibly screen him pursuant to Executive Order No. 13,780 if he
attempted to enter the United States in the future.
125. On information and belief, Defendants intend to implement § 1(g) and
§ 4 of Executive Order No. 13,780 to encumber the return of Iraqi lawful
permanent residents.
126. Executive Order No. 13,780 would be applied to Plaintiff when he
presents himself for inspection after a trip abroad.
Ongoing Harm to Plaintiff

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127. Plaintiff is regularly required to engage in international travel to
perform his job duties, which include reporting on events in the Middle East and
North Africa. See Ex. H (Decl. of Deborah Rayner).
128. But for the uncertainty caused by the issuance of Executive Order Nos.
13,769 and 13,780, Plaintiff’s employer would have already sent him on various
trips from late January 2017 through the filing of this Complaint. Ex. H (Decl. of
Deborah Rayner) at ¶ 7.
129. The continued uncertainty has forced Mr. Tawfeeq’s employer not to
send him on future trips abroad, which has and will cause damage to Mr.
Tawfeeq’s ability to perform his current job and other damage to his career. Ex. H
(Decl. of Deborah Rayner) at ¶ 6.
130. The uncertainty surrounding Plaintiff’s situation has been heightened
by President Trump’s publicly expressed desires to revoke Executive Order No.
13,780 and reissue the flawed Executive Order No. 13,769.
131. President Trump spoke at a political rally in Nashville, Tennessee on
March 15, 2017. At that rally, President Trump called Executive Order No. 13,780
a “watered down version of the first order.” He later reiterated, speaking of
Executive Order No. 13,780: “This is a watered down version of the first one. This
is a watered down version.” Ex. I at page 9 (Rally Transcript).
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132. President Trump stated that Executive Order No. 13,780 was “tailored
to the dictates of the 9th Circuit, in my opinion, flawed ruling.” President Trump
stated that he “wasn’t thrilled, but the lawyers said oh, let’s tailor it.” He also
stated “And let me tell you something. I think we ought to go back to the first one
and go all the way, which is what I wanted to do in the first place.” Ex. I at page 9
(Rally Transcript).
133. President Trump could at any time legally revoke Executive Order No.
13,780 and immediately promulgate an executive order with identical content to
that of Executive Order No. 13,769.
134. Because of the uncertainty caused by the Executive Orders and
Defendants’ conduct, Plaintiff’s employer has not felt comfortable permitting
Plaintiff to travel outside of the United States.
135. If Plaintiff cannot resume regular travel into the United States with
certainty that he will be permitted to return unimpeded, Plaintiff will suffer further
damage to his professional career and reputation.
CLAIMS FOR RELIEF
FIRST CAUSE OF ACTION
Deprivation of Rights Under the INA

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136. Plaintiff repeats and incorporates by reference each and every
allegation contained in the preceding paragraphs as if fully set forth herein.
137. Defendants have a non-discretionary legal duty under INA
§ 101(a)(13)(C) to permit the Plaintiff to return the United States without
“admission.”
138. On information and belief, rather than inspecting Plaintiff and
allowing him to proceed into the United States as a returning resident, Defendant
CBP improperly admitted Plaintiff under the Executive Order No. 13,769 in on
January 29, 2017.
139. By, on information and belief, applying the Executive Order to
Plaintiff’s entry on January 29, 2017, Defendants deprived Plaintiff of his rights as
a lawful permanent resident, including his rights under INA § 101(a)(13)(C). 8
U.S.C. § 1101(a)(13)(C).
140. Executive Order No. 13,780, through the imposition of additional
screening procedures for lawful permanent residents from Iraq, will further deprive
Plaintiff of his rights as a lawful permanent resident, including his rights under
INA § 101(a)(13)(C). 8 U.S.C. § 1101(a)(13)(C).
SECOND CAUSE OF ACTION
Violations of the APA
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141. Plaintiff repeats and incorporates by reference each and every
allegation contained in the preceding paragraphs as if fully set forth herein.
142. Defendants’ refusal to permit Plaintiff to return to the United States
without admission on January 29, 2017, was arbitrary and capricious and not
otherwise in accordance with law. 5 U.S.C. § 706(2).
143. Defendants’ decision to apply Executive Order No. 13,769 to Plaintiff
as a lawful permanent resident was arbitrary and capricious and not otherwise in
accordance with law. 5 U.S.C. § 706(2).
144. Any application of Executive Order No. 13,780 to Plaintiff would
similarly be arbitrary and capricious because it would unlawfully treat him
differently than lawful permanent residents from other countries.
145. Defendant CBP’s application of Executive Order No. 13,769 to
Plaintiff, which occurred on information and belief the night of January 29, 2017,
was not authorized by the INA. Any application of Executive Order No. 13,780 to
Plaintiff upon his return from abroad would be similarly not authorized by the INA.
146. Further, Defendants actions with respect to Plaintiff on January 29,
2017 were, and any application of Executive Order No. 13,780 to Plaintiff would
be, arbitrary, capricious, an abuse of discretion, and not otherwise in accordance
with law; contrary to constitutional right, power, privilege, or immunity; in excess
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of statutory jurisdiction, authority, or limitations, or short of statutory right; and
without observance of procedure required by law, in violation of the
Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D).
THIRD CAUSE OF ACTION
Declaratory Judgment
147. Plaintiff repeats and incorporates by reference each and every
allegation contained in the preceding paragraphs as if fully set forth herein.
148. Plaintiff is entitled to a declaration of his rights, which shall have the
force and effect of a final judgment, in accordance with 28 U.S.C. § 2201(a).
149. In particular, Plaintiff is entitled to a declaration that Executive Order
No. 13,780 does not extend to returning permanent resident aliens who satisfy the
conditions set forth in INA § 101(a)(13)(C). 8 U.S.C. § 1101(a)(13)(C).
FOURTH CAUSE OF ACTION
Mandamus
150. Plaintiff repeats and incorporates by reference each and every
allegation contained in the preceding paragraphs as if fully set forth herein.
151. Mandamus lies in the present action because Defendants owe Plaintiff
a non-discretionary legal duty to permit his return to the United States without
admission.
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152. Defendants’ prior failure to permit Plaintiff’s return pursuant to INA
§ 101(a)(13)(C) constitutes a violation of a duty owed to him, as would any future
failure to permit his return pursuant to that provision. See 8 U.S.C.
§ 1101(a)(13)(C).
153. Defendants owe Plaintiff a duty to obey applicable law, and to instruct
its employees at border ports of entry to exclude returning Iraqi lawful permanent
residents within INA § 101(a)(13)(C) from any additional screening contemplated
by Executive Order No. 13,780.
154. Plaintiff has no other adequate remedy to address Defendants’ failure
to permit his unimpeded return to the United States.
155. The Court therefore has authority under the Mandamus Act, 28 U.S.C.
§ 1361, to compel the Government to permit Plaintiff’s return to the United States
under the terms of INA § 101(a)(13)(C), rather than under the terms of Executive
Order No. 13,780.
FIFTH CAUSE OF ACTION
Deprivation of Procedural Due Process
156. Plaintiff repeats and incorporates by reference each and every
allegation contained in the preceding paragraphs as if fully set forth herein.

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157. Returning lawful permanent residents like Plaintiff are entitled to
statutory and regulatory procedural rights before they can be removed from the
United States.
158. On information and belief, those statutory and procedural rights are
being violated by impeding or preventing the return of lawful permanent residents
from the United States without the process due them under, inter alia, INA § 240.
See 8 U.S.C. § 1229a.
159. If Plaintiff leaves the United States, he too could be subject to a
violation of those statutory rights.
160. In addition, procedural due process requires that the government be
constrained before it acts in a way that deprives individuals of liberty interests
protected under the Due Process Clause of the Fifth Amendment.
161. Application of Executive Order No. 13,780 to lawful permanent
residents like Plaintiff deprives them of the process due them under the Fifth
Amendment.
162. In particular, Executive Order No. 13,780 impermissibly injects the
Secretary of Defense into the admission or inspection on return of lawful
permanent residents when, under the INA, the Secretary of Defense has no such
role.
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163. Defendants’ actions in threatening to exclude Plaintiff under
Executive Order No. 13,769 and on information and belief in applying their
discretion under that Executive Order to admit him on January 30, 2017, violated
Plaintiff’s procedural due process rights guaranteed by the Fifth and Fourteenth
Amendments.
164. Defendants’ use of Executive Order No. 13,780 to impede or bar
Plaintiff’s entry into the United States would also violate Plaintiff’s procedural due
process rights guaranteed by the Fifth and Fourteenth Amendments.
SIXTH CAUSE OF ACTION
Equal Access to Justice Act
165. Plaintiff repeats and incorporates by reference each and every
allegation contained in the preceding paragraphs as if fully set forth herein.
166. Plaintiff is entitled to recoup his reasonable attorney’s fees and costs
pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504 and 28 U.S.C.
§ 2412(d), et seq.
167. Plaintiff’s net worth does not and has not exceeded $2,000,000 at any
relevant time.

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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray that this Court grant the following relief:
1.

Issue an injunction ordering Defendants not to detain or apply a
discretionary admissions assessment or place conditions upon the
right to return to any returning Iraqi lawful permanent resident
including Plaintiff solely on the basis Executive Order No. 13,780;

2.

Enter a judgment declaring unlawful Defendants’ refusal under
Executive Order No. 13,769 to permit Plaintiff’s return into the
United States pursuant to INA § 101(a)(13)(C);

3.

Enter a judgment declaring Defendants’ conduct to be a violation of
Plaintiff’s rights under the INA, the APA, and the U.S. Constitution;

4.

Issue an order of mandamus to Defendants compelling them to
provide instructions to their employees to allow lawful permanent
residents like Plaintiff to return to the United States under the criteria
in INA § 101(a)(13)(C);

5.

Award Plaintiff’s reasonable costs and attorney’s fees; and

6.

Grant any other and further relief that this Court may deem fit and
proper.

DATED March 23, 2017

Respectfully submitted,
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/s/ Daniel P. Pierce
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
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

AMENDED

COMPLAINT

FOR

DECLARATORY,

MANDAMUS, AND INJUNCTIVE RELIEF 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

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CERTIFICATE OF SERVICE
I hereby certify that I have this day filed a true and correct copy of the
within and foregoing AMENDED COMPLAINT FOR DECLARATORY,
MANDAMUS, AND INJUNCTIVE RELIEF 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 NW
Washington, DC 20044
202-598-2668
Email: Sheetul.S.Wall2@usdoj.gov
I have also sent a copy of this filing by U.S. mail (as pro se prospective amicus is
not a registered ECF user) to:
Prof. Victor Williams
America First Lawyers Association
5209 Baltimore Ave.
Bethesda, MD 20816
301-951-9045
Email: americanfirstlawyers@gmail.com

This 23rd day of March 2017.
/s/ Daniel P. Pierce
Daniel P. Pierce

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