Case 2:17-cv-00178-JLR Document 76 Filed 12/07/17 Page 1 of 6 1 The Honorable James L. Robart 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 JOHN DOE, et al., Plaintiffs, 11 12 13 v. DONALD TRUMP, et al., 14 15 Defendants. JEWISH FAMILY SERVICES, et al., 16 17 18 CASE NO. C17-0178JLR CASE NO. C17-1707JLR Plaintiffs, v. DONALD TRUMP, et al., 19 Defendants. 20 21 22 23 PLAINTIFF DOE’S SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION IN CASE NO. C17-0178JLR 24 25 26 PLAINTIFF’S SUPPL. BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION (2:17-cv-00178-JLR) AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Avenue, Sui te 630 Seattle, W ashington 98164 TELEPHONE: (206) 624-2184 KELLER ROHRBACK L.L.P. 1201 Third A venue, Suite 3200 Seattle, W A 98101-3052 TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384 Case 2:17-cv-00178-JLR Document 76 Filed 12/07/17 Page 2 of 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Plaintiff Joseph Doe seeks an order, on behalf of himself and those similarly situated to him, enjoining the indefinite suspension of follow-to-join (“FTJ”) derivative refugee admissions that Defendants improperly enacted via the Agency Memo. The Supreme Court’s recent stay orders in Hawai‘i v. Trump and IRAP v. Trump have no application here. They are summary orders that express no view on any particular issue. And the preliminary injunction motions in those cases are in all material respects distinct from this one. The scope of the order Plaintiff seeks is narrower; he challenges a policy not at issue in Hawai‘i or IRAP; and he raises statutory, APA, and due process claims that are not presented in those cases. The Supreme Court’s orders have no impact on Plaintiff’s pending motion. A. Plaintiff’s Legal Arguments Are Distinct and Likely to Succeed on the Merits. The Supreme Court’s orders say nothing about Plaintiff’s likelihood of success in challenging the Agency Memo’s follow-to-join ban. The Agency Memo has not been challenged in those cases and has never been before the Supreme Court. Plaintiff’s claim centers on a completely different statute, INA § 207(c)(2)(A), which creates an unambiguous statutory entitlement, requiring Defendants to admit the qualifying spouses and minor children of refugees who have resettled in the United States. This statute is not at issue in either IRAP or Hawai‘i, where the plaintiffs rely on different statutes to make different claims. Nor do the plaintiffs in those cases raise the APA or due process claims that Plaintiff raises here. Plaintiff’s arguments are both likely to succeed and of a different nature from those arguments raised in the other pieces of litigation over the various executive orders and proclamations. Unlike the provisions at issue in IRAP and Hawai‘i, the Agency Memo indefinitely nullifies a mandatory entitlement created by Congress. Congress drafted and passed into law INA § 207(c)(2)(A), which enables principal refugees who have passed extensive security screening and qualified to resettle in the United States to be reunited with their spouses and minor children—who have also passed extensive screenings. As long as the principal refugee’s 26 PLAINTIFF’S SUPPL. REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Page - 1 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Avenue, Sui te 630 Seattle, W ashington 98164 TELEPHONE: (206) 624-2184 KELLER ROHRBACK L.L.P. 1201 Third A venue, Suite 3200 Seattle, W A 98101-3052 TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384 Case 2:17-cv-00178-JLR Document 76 Filed 12/07/17 Page 3 of 6 1 2 3 4 family members do not meet any of the statutory grounds for inadmissibility, they “shall … be entitled” to the same status as the principal refugee. 8 U.S.C. § 1157(c)(2)(A) (emphasis added). The statutory entitlement at issue presents entirely distinct legal issues for analysis. B. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The FTJ Suspension Causes Plaintiff Irreparable Harm. Preliminary relief is designed to prevent irreparable harm during the pendency of litigation. The Hawai‘i and IRAP orders did not analyze irreparable harm, and indeed the Court’s prior stay order recognized that plaintiffs who are separated from their families suffer irreparable harm. See Trump v. IRAP, 137 S. Ct. 2080, 2087 (2017). In any event, nothing about the new stay orders diminishes the irreparable harm here. Plaintiff Joseph Doe has been separated from his wife and young children (who are 4, 5, and 9 years old) for nearly four years. They have completed the exhaustive screening process and are eager to join him in the United States. Every day that passes is lost time with his family that he cannot get back: he is missing the opportunity to be with, to parent, to emotionally support, and to bond with his children as they grow up. The milestones he has already missed and will continue to miss cannot ever be replaced, and the indefinite nature of the Agency Memo’s suspension is mentally and emotionally punishing. This harm is irreparable. See Mot. Prelim. Inj. § IV.B., Dkt. # 45. C. The Balance of Equities Tips in Plaintiff’s Favor. Although Defendants invoke “national security” as the rationale for the complete ban on FTJ admissions and as a compelling interest weighing against an injunction, they cite no actual evidence that the FTJ refugee screening process presents a security concern. Neither do they cite any evidence that their alignment of that screening process with the principal refugee screening process requires an indefinite suspension of all FTJ admissions—whether for national security or other reasons. There is simply no evidence to support an indefinite ban on all FTJ refugees, the vast majority of whom are women and children. Reply at 10, Dkt. # 54. The Agency Memo’s recitation of national security as the rationale for this drastic measure is even thinner than the 26 PLAINTIFF’S SUPPL. REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Page - 2 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Avenue, Sui te 630 Seattle, W ashington 98164 TELEPHONE: (206) 624-2184 KELLER ROHRBACK L.L.P. 1201 Third A venue, Suite 3200 Seattle, W A 98101-3052 TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384 Case 2:17-cv-00178-JLR Document 76 Filed 12/07/17 Page 4 of 6 1 2 rationales asserted by the government in Hawai‘i and IRAP. See Appl. for Stay at 3, Trump v. Hawai‘i, No. 17A550 (U.S. Nov. 20, 2017) (describing review process). 3 4 5 6 7 8 9 10 A global ban on all FTJ refugees—that is, every spouse and child of a refugee who did not physically accompany the refugee to the United States—is by definition not tailored in any way. Moreover, Defendants have admitted that the ban is not even tailored to purported screening deficiencies. Defendants concede that the review process for FTJ refugees in Kenya and Thailand is sufficient, even though the Agency Memo on its face bans FTJ refugees from those countries. Compare Resp. at 7, Dkt. # 51, with Agency Memo at 2-3. The banning of FTJ refugees from countries with screening processes that are indisputably sufficient further highlights the fact that the ban is not tailored to serve a national security purpose. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 While Defendants have not demonstrated any compelling national security interest for denying an injunction, enjoining the FTJ suspension is in the public interest. “‘[P]ublic interest concerns are implicated when a constitutional right has been violated, because all citizens have a stake in upholding the Constitution.’” Hernandez v. Sessions, 872 F.3d 976, 996 (9th Cir. 2017) (citation omitted) (affirming grant of preliminary injunction on basis of due process claim). Defendants have violated Joseph Doe’s due process rights. D. Conclusion Nothing about the recent stay orders addresses Plaintiff’s pending motion, which challenges a different policy issued by different officials, invokes different statutes, makes different claims, and involves a different balance of equities. A preliminary injunction remains warranted where the “‘balance of hardships … tips sharply towards the plaintiff … [and] the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.’” Does 1-10 v. Univ. of Washington, No. C16-1212JLR, 2017 WL 5899243, at *4 (W.D. Wash. Nov. 30, 2017) (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2001)). The Supreme Court’s orders do not change this analysis. 26 PLAINTIFF’S SUPPL. REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Page - 3 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Avenue, Sui te 630 Seattle, W ashington 98164 TELEPHONE: (206) 624-2184 KELLER ROHRBACK L.L.P. 1201 Third A venue, Suite 3200 Seattle, W A 98101-3052 TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384 Case 2:17-cv-00178-JLR Document 76 Filed 12/07/17 Page 5 of 6 1 DATED this 7th day of December, 2017. KELLER ROHRBACK L.L.P. 2 3 4 5 6 7 8 9 10 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION By: /s/ Emily Chiang g /s/ Lisa Nowlin Emily Chiang, WSBA # 50517 Lisa Nowlin, WSBA # 51512 901 Fifth Avenue, Suite 630 Seattle, WA 98164 Telephone: (206) 624-2184 Email: echiang@aclu-wa.org lnowlin@aclu-wa.org Attorneys for Plaintiff 11 12 13 14 By: /s/ Lynn Lincoln Sarko n By: /s/ Tana Lin n By: /s/ Amy Williams-Derry yo By: /s/ Derek W. Loeser______________ By: /s/ Alison S. Gaffney Lynn Lincoln Sarko, WSBA # 16569 Tana Lin, WSBA # 35271 Amy Williams-Derry, WSBA # 28711 Derek W. Loeser, WSBA # 24274 Alison S. Gaffney, WSBA # 45565 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 Email: lsarko@kellerrohrback.com tlin@kellerrohrback.com awilliams-derry@kellerrohrback.com dloeser@kellerrohrback.com agaffney@kellerrohrback.com By: /s/ Laurie B. Ashton N Laurie B. Ashton (admitted pro hac vice) 3101 North Central Avenue, Suite 1400 Phoenix, AZ 85012-2600 Telephone: (602) 248-0088 Facsimile: (602) 248-2822 Email: lashton@kellerrohrback.com 15 16 17 18 19 By: /s/ Alison Chase e Alison Chase (admitted pro hac vice) 1129 State Street, Suite 8 Santa Barbara, CA 93101 Telephone: (805) 456-1496 Facsimile: (805) 456-1497 Email: achase@kellerrohrback.com 20 21 22 23 24 Attorneys for Plaintiff/Cooperating Attorneys for the American Civil Liberties Union Of Washington Foundation 25 26 PLAINTIFF’S SUPPL. REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Page - 4 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Avenue, Sui te 630 Seattle, W ashington 98164 TELEPHONE: (206) 624-2184 KELLER ROHRBACK L.L.P. 1201 Third A venue, Suite 3200 Seattle, W A 98101-3052 TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384 Case 2:17-cv-00178-JLR Document 76 Filed 12/07/17 Page 6 of 6 1 CERTIFICATE OF SERVICE 2 4 I hereby certify that on December 7, 2017, I electronically filed the attached document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the email addresses on the Court’s Electronic Mail Notice List. 5 DATED this 7th day of December, 2017. 3 6 KELLER ROHRBACK L.L.P. 7 8 By: /s/ Tana Lin 9 n Tana Lin, WSBA # 35271 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 Email: tlin@kellerrohrback.com 10 11 12 13 Attorney for Plaintiff/Cooperating Attorney for the American Civil Liberties Union Of Washington Foundation 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFF’S SUPPL. REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Page - 5 AMERICAN CIVIL LIBERTIES UNION OF WASHINGTON FOUNDATION 901 Fifth Avenue, Sui te 630 Seattle, W ashington 98164 TELEPHONE: (206) 624-2184 KELLER ROHRBACK L.L.P. 1201 Third A venue, Suite 3200 Seattle, W A 98101-3052 TELEPHONE: (206) 623-1900 FACSIMILE: (`206) 623-3384