Case 2:17-cv-00178-JLR Document 73 Filed 12/07/17 Page 1 of 6 1 THE HONORABLE JAMES L. ROBART 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 JOHN DOES, et al., 10 11 12 CASE NO. C17-0178JLR Plaintiffs, v. DONALD TRUMP, et al., 13 Defendants. 14 15 JEWISH FAMILY SERVICE, et al., 16 17 18 JEWISH FAMILY SERVICE PLAINTIFFS’ SUPPLEMENTAL BRIEFING ON THE INAPPLICABILITY OF SUPREME COURT STAY ORDERS TO THE PENDING PRELIMINARY INJUNCTION MOTIONS (RELATING TO CASE NO. C17-1707JLR) CASE NO. C17-1707JLR Plaintiffs, v. DONALD TRUMP, et al., 19 Defendants. 20 21 22 23 24 25 26 PLAINTIFFS’ SUPPLEMENTAL BRIEF (No. 17-cv-01707-JLR) 137828647.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00178-JLR Document 73 Filed 12/07/17 Page 2 of 6 1 The Supreme Court’s December 4 orders (the “Stay Orders”) staying preliminary 2 injunctions of portions of Proclamation No. 9,645, 82 Fed. Reg. 45,161 (Sept. 27, 2017) (“EO- 3 3”) in Int’l Refugee Assistance Project v. Trump, No. TDC-17-0361, 2017 WL 4674314 (D. Md. 4 Oct. 17, 2017) (“IRAP”) and in Hawai’i v. Trump, No. 17-00050 DKW-KSL, 2017 WL 4639560 5 (D. Haw. Oct. 17, 2017) (“Hawai’i”), have no impact on the preliminary injunction motions in 6 these cases. The Supreme Court did not opine on the merits or the equities in issuing the Stay 7 Orders, making it impossible to discern the bases on which they were granted. See Trump v. Int’l 8 Refugee Assistance Project, No. 17A560, 2017 WL 5987435 (U.S. Dec. 4, 2017); Trump v. 9 Hawai’i, No. 17A550, 2017 WL 5987406 (U.S. Dec. 4, 2017). Such stays do not require the 10 stay applicants to show that they are “more likely than not” to ultimately prevail on the merits. 11 Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011). 12 In any event, the Stay Orders have no effect here because this case and IRAP/Hawai’i 13 challenge different immigration policies, raise different legal and factual claims, and seek 14 different relief on behalf of different sets of parties. IRAP/Hawai’i challenge EO-3, the ban on 15 certain immigrant and non-immigrant entry from six Muslim-majority countries plus North 16 Korea and Venezuela, which the President proclaimed to be necessary after the conclusion of a 17 90-day “worldwide review” of immigration screening and vetting measures. 82 Fed. Reg. 18 45,161. This case, by contrast, challenges the Refugee Ban set forth in an agency memorandum 19 (“Memorandum”), which continues to suspend portions of the U.S. Refugee Admissions 20 Program (“USRAP”), purportedly so that the agencies can continue a review of the program that 21 was directed by, but apparently not completed under, prior Executive Orders. See Exec. Order 22 No. 13,769 (“EO-1”), 82 Fed. Reg. 8,977, 8,979 (Feb. 1, 2017) (suspending the USRAP for 120 23 days during review); Exec. Order No. 13,780 (“EO-2”), 82 Fed. Reg. 13,209, 13,215 (Mar. 9, 24 2017) (same). Plaintiffs’ challenge differs from those raised in IRAP/Hawai’i with respect to 25 every factor of the preliminary injunction inquiry: likelihood of success on the merits, irreparable 26 harm, balance of equities, and public interest. See PI Mot. (ECF 42) at 9. PLAINTIFFS’ SUPPLEMENTAL BRIEF (No. 17-cv-01707-JLR) –1 137828647.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00178-JLR Document 73 Filed 12/07/17 Page 3 of 6 1 First, on the merits, Plaintiffs’ statutory challenge to the Memorandum differs from 2 IRAP/Hawai’i, which challenge the President’s claimed authority to issue EO-3 under 8 U.S.C. 3 § 1182(f) and § 1185(a)(1). See IRAP, 2017 WL 4674314, at *19; Hawai’i, 2017 WL 4639560, 4 at *9. In contrast, here, the President has not invoked either statute. The statutory question in 5 this case is whether the agencies, not the President, have the authority to suspend the USRAP for 6 follow-to-join petitioners and for nationals of eleven countries on the Security Advisory Opinion 7 (“SAO”) list without rulemaking procedures and without an adequate justification. As the JFS 8 Plaintiffs explained for the SAO ban and Doe Plaintiffs explained for the FTJ ban, the answer is 9 no. See PI Mot. at 17-23; Doe v. Trump, PI Mot. (ECF 45) at 9-14. 10 Moreover, although Plaintiffs’ constitutional challenges to the Memorandum are legally 11 similar to those in IRAP/Hawai’i, the evidence is different. In addition to the evidence of this 12 Administration’s anti-Muslim animus presented in IRAP/Hawai’i, Plaintiffs here have submitted 13 evidence establishing that the purpose and the effect of the Refugee Ban in particular is to 14 disfavor Muslim refugees and favor Christian refugees. See PI Mot. at 13-17. The Refugee Ban 15 suspends admissions from countries that account for 80 percent of the Muslim refugees entering 16 the United States and prioritizes applications from countries whose refugees have been 70 17 percent Christian—changing the religious composition of the USRAP in precisely the ways that 18 this Administration promised, both before and after taking office. See id. at 7-8, 13-17. This 19 type of religious preference violates every test under the Establishment Clause. See id. 20 Second, with respect to irreparable harm, beyond the injuries that Plaintiffs share with the 21 IRAP/Hawai’i plaintiffs, refugees—who, by definition, face serious harm amounting to 22 persecution—suffer additional irreparable injury from being stranded in perilous circumstances. 23 See Leiva-Perez, 640 F.3d at 969-70 (recognizing likelihood of physical danger to be irreparable 24 harm). Doe 1, for example, is an Iraqi former translator for the U.S. military who was on the 25 verge of resettling in the United States in early October 2017, but his life remains at risk every 26 day because of the Refugee Ban. Doe 1 Decl. (ECF 52) ¶¶ 3-16. Doe 4 faces such dire threats to PLAINTIFFS’ SUPPLEMENTAL BRIEF (No. 17-cv-01707-JLR) –2 137828647.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00178-JLR Document 73 Filed 12/07/17 Page 4 of 6 1 her safety on a daily basis as a transgender woman in Egypt that the U.S. Embassy expedited 2 processing of her application prior to the Refugee Ban. Doe 4 Decl. (ECF 55) ¶¶ 3-7. Other 3 refugee Plaintiffs, their family members, and clients of the organizational Plaintiffs and their 4 family members are similarly at risk of physical harm because of the Refugee Ban. See, e.g., 5 Doe 2 Decl. (ECF 53) ¶¶ 6, 10; Doe 5 Decl. (ECF 56) ¶¶ 4-6, 9; JFS-S Decl. (ECF 50) ¶¶ 21, 35; 6 JFS-SV Decl. (ECF 51) ¶¶ 24, 35, 42. 7 Finally, the balance of equities and the public interest also differentiate this case from 8 IRAP/Hawai’i. There, the government has argued that the stay was necessary to respond to 9 national security threats and to conduct foreign relations in accordance with the worldwide 10 review undertaken pursuant to the prior Executive Orders. App. to Stay, at 34-37, available at 11 https://tinyurl.com/yaa7xxrh. Here, after reviewing the USRAP under EO-1 and EO-2 since 12 January 2017, the Administration still has no justification for its SAO suspension beyond 13 generalized concerns and a desire to continue review of the USRAP. See Mem. at 2. 14 Refugees—particularly from the SAO countries—are already the most rigorously vetted group of 15 people entering the United States. See Nat’l Sec. Decl. (ECF 46) ¶¶ 8-11. The balance of 16 equities, as well as the public interest in the United States’ statutorily codified commitment to 17 refugee admissions, see Refugee Act of 1980, Pub. L. No. 96-212 § 101(b), 94 Stat. 102, weigh 18 strongly in favor of Plaintiffs’ request for preliminary relief—just as they did for EO-1 and 19 EO-2, which also suspended the USRAP pending review. See Washington v. Trump, 847 F.3d 20 1151, 1168-69 (9th Cir. 2017); Hawai’i v. Trump, 859 F.3d 741, 783-85 (9th Cir. 2017), vacated 21 by 874 F.3d 1112 (9th Cir. 2017).1 22 23 For all the reasons stated, the Supreme Court stay orders do not affect this Court’s consideration of the pending preliminary injunction motions. 24 25 26 1 Notably, the Supreme Court did not stay the injunctions as to EO-2’s suspension of the USRAP, except for people lacking bona fide relationships to U.S. entities or persons, Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2089 (U.S. June 26, 2017)—a limitation that should not apply in this case given the record of harm to Plaintiffs, as explained in Plaintiffs’ motion, see PI Mot. at 23-24. PLAINTIFFS’ SUPPLEMENTAL BRIEF (No. 17-cv-01707-JLR) –3 137828647.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00178-JLR Document 73 Filed 12/07/17 Page 5 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Respectfully submitted, /s/ Lauren Watts Staniar David Burman, WSBA No. 10611 Lauren Watts Staniar, WSBA No. 48741 Tyler Roberts, WSBA No. 52688 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 dburman@perkinscoie.com lstaniar@perkinscoie.com troberts@perkinscoie.com Mariko Hirose, Pro Hac Vice Deepa Alagesan, Pro Hac Vice Linda Evarts, Pro Hac Vice Kathryn C. Meyer, Pro Hac Vice International Refugee Assistance Project 40 Rector Street, 9th Floor New York, NY 10006 Tel: (646) 459-3044 mhirose@refugeerights.org dalagesan@refugeerights.org levarts@refugeerights.org kmeyer@refugeerights.org Elizabeth Sweet, Pro Hac Vice Mark Hetfield, Pro Hac Vice HIAS, Inc. 1300 Spring Street, Suite 500 Silver Spring, MD 20910 Tel: 301-844-7300 liz.sweet@hias.org mark.hetfield@hias.org DATED: December 7, 2017 Justin B. Cox, Pro Hac Vice National Immigration Law Center PO Box 170208 Atlanta, GA 30317 Tel: (678) 279-5441 Fax: (213) 639-3911 cox@nilc.org Karen C. Tumlin, Pro Hac Vice Melissa S. Keaney, Pro Hac Vice Esther H. Sung, Pro Hac Vice National Immigration Law Center 3450 Wilshire Blvd, #108-62 Los Angeles, CA 90010 Tel: (213) 639-3900 Fax: (213) 639-3911 tumlin@nilc.org keaney@nilc.org sung@nilc.org Lauren E. Aguiar, Pro Hac Vice Mollie M. Kornreich, Pro Hac Vice Abigail E. Davis, Pro Hac Vice Four Times Square New York, NY 10036 Tel: (212) 735-3000 Fax: (212) 735-2000 lauren.aguiar@probonolaw.com mollie.kornreich@probonolaw.com abigail.sheehan@probonolaw.com 22 23 Counsel for Plaintiffs Jewish Family Service, et al. 24 25 26 PLAINTIFFS’ SUPPLEMENTAL BRIEF (No. 17-cv-01707-JLR) –4 137828647.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:17-cv-00178-JLR Document 73 Filed 12/07/17 Page 6 of 6 1 2 CERTIFICATE OF SERVICE I hereby certify that on December 7, 2017, I electronically filed the foregoing document 3 with the Clerk of the Court using the CM/ECF system which will send notification of such filing 4 to all of the registered CM/ECF users for this case. 5 6 7 8 I hereby declare under penalty of perjury of the laws of the State of Washington that the foregoing in true and correct. DATED this 7th day of December, 2017. 9 /s/ Lauren Watts Staniar Lauren Watts Staniar, WSBA No. 48741 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFFS’ SUPPLEMENTAL BRIEF (No. 17-cv-01707-JLR) –5 137828647.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000