Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 1 of 65 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 JOHN DOE, et al., 10 11 12 Plaintiffs, v. DONALD TRUMP, et al., Defendants. 13 14 15 16 17 18 JEWISH FAMILY SERVICES, et al., Plaintiffs, v. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ISSUING A PRELIMINARY INJUNCTION (RELATING TO BOTH CASES) CASE NO. C17-1707JLR DONALD TRUMP, et al., Defendants. I. 19 20 CASE NO. C17-0178JLR INTRODUCTION The work of this court, and more broadly of the federal Judiciary, is to resolve 21 disputes between parties; that is what the court endeavors to do today in ruling on the two 22 motions before it. Plaintiffs in both cases are refugees, who find themselves in dire ORDER - 1 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 2 of 65 1 circumstances, their family members who yearn to be reunited with them, and 2 humanitarian organizations whose fundamental mission is to help these vulnerable 3 refugees resettle in the United States. Plaintiffs in both cases present compelling 4 circumstances of irreparable harm inflicted by the federal agencies’ action at issue here. 5 Nevertheless, the fundamental question the court must resolve is did the federal agencies 6 act within their legal authority? If so, the court does not intervene, but leaves the 7 decision to the other two branches of government—Congress and the Executive. Today, 8 however, the court intervenes and preliminarily enjoins the federal agencies’ action. It 9 does so because, at this early stage in the proceedings, Plaintiffs show that they are likely 10 to succeed on their claims that the agencies exceeded their statutory authority and also 11 that they meet the other qualifying factors necessary for preliminary injunctive relief. 12 One further note: This is an area of rapidly developing law with related cases 13 presently on appeal and decisions anticipated shortly.1 Plaintiffs, however, seek a 14 decision now and are entitled to one given the facts in this case. In deciding these 15 motions, the court must rely on the precedent currently available to it. The court 16 understands that appellate courts may issue additional guidance in the days to come. If 17 the parties believe that the court should revisit any portion of today’s decision on the 18 basis of subsequent authority, they should raise this to the court’s attention through 19 appropriate motions. The court now turns to the motions at hand. 20 // 21 22 1 Indeed, one such decision was issued last night. See Hawaii v. Trump, No. 17-17168, 2017 WL 6547095 (9th Cir. Dec. 22, 2017) (“Hawaii III”). The court has reviewed that opinion and incorporated it into this decision. ORDER - 2 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 3 of 65 1 Before the court are two motions seeking to preliminarily enjoin certain aspects of 2 Executive Order No. 13,815 (“EO-4”), § 3(a), 82 Fed. Reg. 50,055 (Oct. 27, 2017), and 3 its accompanying memorandum to Defendant Donald Trump, President of the United 4 States, from Defendants Rex Tillerson, Secretary of the Department of State (“DOS”), 5 Elaine Duke, Acting Secretary of the Department of Homeland Security (“DHS”), and 6 Daniel Coats, Director of National Intelligence (“DNI”) (Lin Decl. (Dkt. # 46) ¶ 3, Ex. B 7 (attaching a copy of the memorandum) (hereinafter, “Agency Memo”)). Plaintiffs John 8 Doe, Jack Doe, Jason Doe, Joseph Doe, James Doe, Jeffrey Doe, the Episcopal Diocese 9 of Olympia, and the Council on American Islamic Relations-Washington (collectively, 10 “Doe Plaintiffs”) filed the first motion for a preliminary injunction in Doe, et al. v. 11 Trump, et al., No. C17-0178JLR (W.D. Wash.) (“the Doe Case”). (See Doe PI Mot. 12 (Dkt. # 45).) Shortly after Doe Plaintiffs filed their motion, Plaintiffs Jewish Family 13 Service of Seattle (“JFS-S”), Jewish Family Services of Silicon Valley (“JFS-SV”), Allen 14 Vaught, Afkab Mohamed Hussein, John Does 1-3 and 7, and Jane Does 4-6 (collectively, 15 “JFS Plaintiffs”) filed a separate action in JFS-S, et al. v. Trump, et al., No. C17- 16 1707JLR (W.D. Wash.) (“the JFS Case”) and a second motion for a preliminary 17 injunction. (See JFS Compl. (17-1707 Dkt. # 1); JFS PI Mot. (17-1707 Dkt. # 42).)2 18 Recognizing that both cases and motions for preliminary injunction concerned EO-4 and 19 the Agency Memo, the court consolidated the cases. (See OSC re: Consol. (Dkt. # 52); 20 21 22 2 References to docket numbers in this order refer to filings the Doe Case, unless the docket number is preceded by “17-1707.” Docket numbers preceded by “17-1707” refer to entries in the JFS Case. ORDER - 3 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 4 of 65 1 Stip. Re: Consol. (Dkt. # 60); Consol. Order (Dkt. # 61).) Following consolidation, Doe 2 Plaintiffs joined JFS Plaintiffs’ motion, and JFS Plaintiffs joined Doe Plaintiffs’ motion. 3 (Doe Joinder (Dkt. #62); JFS Joinder (17-1707 Dkt. # 70).) 4 In addition to the parties’ briefing (see Doe PI Mot.; JFS PI Mot.; Doe Resp. (Dkt. 5 # 51); JFS Resp. (Dkt. # 77); Doe Reply (Dkt. # 54); JFS Reply (Dkt. # 79); Doe Joinder; 6 JFS Joinder ; Doe Supp. Br. (Dkt. # 76); JFS Supp. Br. (Dkt. # 73); Def. Supp. Br. (Dkt. 7 # 78)), the court has considered the relevant portions of the record, and the applicable 8 law. Further, the court heard oral argument on December 21, 2017. Being fully advised, 9 the court (1) GRANTS Doe Plaintiffs’ motion for a preliminary injunction, and (2) 10 GRANTS JFS Plaintiffs’ motion for a preliminary injunction except for those refugees 11 who lack a bona fide relationship with a person or entity in the United States.3 See 12 Trump v. Int’l Refugee Assistance Project, --- U.S. ---, 137 S. Ct. 2080, 2089 (2017) 13 (“IRAP”). 14 // 15 // 16 3 17 18 19 20 21 22 In accordance with Federal Rules of Civil Procedure 52(a) and 65(d), this order shall constitute the court’s findings of fact and conclusions of law setting forth the grounds for issuing the preliminary injunction contained herein. See Fed. R. Civ. P. 52(a); Fed. R. Civ. P. 65(d); see also A.H.R. v. Wash. State Health Care Auth., No. C15-5701JLR, 2016 WL 98513, at *1 n.4 (W.D. Wash. Jan. 7, 2016). Although the court has not labeled paragraphs specifically as findings of fact or conclusions of law, such labels are not necessary. The nature of the findings and conclusions that follow is apparent. See Tri–Tron Int’l v. A.A. Velto, 525 F.2d 432, 435-36 (9th Cir. 1975) (“We look at a finding or a conclusion in its true light, regardless of the label that the district court may have placed on it. . . . [T]he findings are sufficient if they permit a clear understanding of the basis for the decision of the trial court, irrespective of their mere form or arrangement.”) (internal citations omitted); In re Bubble Up Del., Inc., 684 F.2d 1259, 1262 (9th Cir. 1982) (“The fact that a court labels determinations ‘Findings of Fact’ does not make them so if they are in reality conclusions of law.”). ORDER - 4 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 5 of 65 1 2 II. A. BACKGROUND The President’s Executive Orders on Immigration and Refugees 3 1. EO-1 4 One week after his inauguration, President Trump issued Executive Order No. 5 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017) (“EO-1”). In addition to suspending the entry 6 of aliens from seven majority-Muslim countries for 90 days, EO-1 suspended the United 7 States Refugee Admission Program (“USRAP”) for 120 days and banned the entry of 8 Syrian refugees indefinitely. Id. §§ 3(c), 5(a), 5(c). During the 120-day suspension of 9 USRAP, EO-1 directed the Secretaries of DOS and DHS and the DNI to conduct a 10 security review of USRAP. Id. § 5(a). In this period, refugees could be admitted on a 11 case-by-case basis only if their admission was “in the national interest,” which was 12 defined to include when a person is “a religious minority in his country of nationality 13 facing religious persecution.” Id. § 5(e). EO-1 further directed that when USRAP 14 resumed, DOS was to “prioritize refugee claims made by individuals on the basis of 15 religious-based persecution, provided that the religion of the individual is a minority 16 religion in the individual’s country of nationality.” Id. § 5(b). 17 On February 3, 2017, this court issued a nationwide temporary restraining order 18 (“TRO”) enjoining EO-1, including the suspension of USRAP. Washington v. Trump, 19 No. C17-0141JLR, 2017 WL 462040, at *1 (W.D. Wash. Feb. 3, 2017), stay pending 20 appeal denied, 847 F.3d 1151 (9th Cir. 2017), appeal dismissed, No. 17-35105, 2017 WL 21 3774041 (9th Cir. Mar. 8, 2017). On appeal, the Ninth Circuit interpreted the court’s 22 TRO to be a preliminary injunction and declined the Government’s request to stay this ORDER - 5 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 6 of 65 1 court’s order. Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), appeal dismissed, 2 No. 17-35105, 2017 WL 3774041 (9th Cir. Mar. 8, 2017). 3 2. EO-2 4 After the Ninth Circuit’s ruling, President Trump abandoned his efforts to defend 5 EO-1, and issued Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) 6 (“EO-2”). EO-2 expressly revoked EO-1. EO-2 § 13. EO-2 was similar to EO-1 except 7 that it omitted the explicit preference for religious minorities and the indefinite 8 suspension of Syrian refugees. EO-2 directed another review of USRAP and restarted the 9 120-day suspension of USRAP during the new review period, subject to case-by-case 10 waivers. Id. §§ 6(a), (c). EO-2 stated that the suspension of USRAP was necessary to 11 allow the agencies to “determine what additional procedures should be used to ensure 12 that individuals seeking admission as refugees do not pose a threat to the security and 13 welfare of the United States.” Id. § 6(a). EO-2 also stated that at the conclusion of the 14 review period, USRAP adjudications would resume for stateless persons and nationals of 15 countries for which the agencies “determined that the additional procedures implemented 16 . . . [we]re adequate to ensure the security and welfare of the United States.” Id. 17 Before EO-2 could take effect, a federal district court in Hawaii issued a TRO, 18 holding that EO-2 violated the Establishment Clause. See, e.g., Hawaii v. Trump, 245 F. 19 Supp. 3d 1227, 1230 (D. Haw. 2017), hearing en banc denied sub nom. Hawaii v. Trump, 20 864 F.3d 994 (9th Cir. 2017), aff’d in part, vacated in part, remanded sub nom. Hawaii v. 21 Trump, 859 F.3d 741 (9th Cir. 2017), cert. granted sub nom. Trump v. Int’l Refugee 22 Assistance Project, --- U.S. ---, 137 S. Ct. 2080 (2017), and cert. granted, judgment ORDER - 6 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 7 of 65 1 vacated, No. 16-1540, 2017 WL 4782860 (U.S. Oct. 24, 2017), and vacated, 874 F.3d 2 1112 (9th Cir. 2017), and appeal dismissed as moot sub nom. Hawaii v. Trump, 874 F.3d 3 1112 (9th Cir. 2017). The Ninth Circuit upheld the district court’s decision on the ground 4 that President Trump failed to invoke the proper authority to suspend refugee admissions. 5 Hawaii v. Trump, 859 F.3d 741, 776 (9th Cir. 2017), cert. granted sub nom. Trump v. 6 Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017), and cert. granted, judgment 7 vacated, No. 16-1540, 2017 WL 4782860 (U.S. Oct. 24, 2017), and vacated, 874 F.3d 8 1112 (9th Cir. 2017) (“Hawaii I”). In addition, a federal district court in Maryland and 9 the Fourth Circuit Court of Appeals both concluded that EO-2 likely violated the 10 Establishment Clause. Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 11 544 (D. Md. 2017), aff’d in part, vacated in part, 857 F.3d 554 (4th Cir. 2017) (en banc), 12 as amended (May 31, 2017), as amended (June 15, 2017), cert. granted, --- U.S. ---, 137 13 S. Ct. 2080 (2017), and vacated and remanded sub nom. Trump v. Int’l Refugee 14 Assistance Project, --- U.S. ---, 138 S. Ct. 353 (2017). Pending appeals from both the 15 Ninth and Fourth Circuit Courts of Appeal, the Supreme Court stayed the preliminary 16 injunctions issued by the Maryland and Hawaii district courts—except for foreign 17 nationals and refugees who had a “credible claim of a bona fide relationship with a 18 person or entity in the United States.” IRAP, 137 S. Ct. at 2088-89. 19 3. EO-3 20 While review of EO-2 was pending before the Supreme Court, President Trump 21 replaced those portions of EO-2 that relate to immigrants (and not refugees), with a 22 Presidential Proclamation. See Proclamation No 9,645, 82 Fed. Reg. 45,161 (Sept. 27, ORDER - 7 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 8 of 65 1 2017) (“EO-3”). EO-2’s refugee ban was still in effect at the time President Trump 2 issued EO-3. Federal district judges in Hawaii and Maryland issued preliminarily 3 injunctions blocking implementation of portions of EO-3. See Int’l Refugee Assistance 4 Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *1 (D. Md. Oct. 17, 5 2017), appeal docketed, No. 17-2231 (4th Cir. Oct. 20, 2017), and appeal docketed, No. 6 17-2240 (4th Cir. Oct. 23, 2017); Hawaii v. Trump, No. CV 17-00050 DKW-KSC, 2017 7 WL 4639560, at *1 (D. Haw. Oct. 17, 2017), appeal docketed, No. 17168 (9th Cir. Oct. 8 24, 2017). The Ninth Circuit affirmed the Hawaii district court’s ruling in large part, but 9 narrowed the scope of the injunction to give relief only to those with a credible bona fide 10 relationship with the United States, pursuant to the Supreme Court’s decision in IRAP, 11 137 S. Ct. at 2088. See Hawaii III, 2017 WL 6547095 at * 26. The ruling from the 12 Maryland federal district court remains on appeal. The Supreme Court has stayed both 13 preliminary injunctions pending further appeals. See Trump v. Int’l Refugee Assistance 14 Project, No. 17A560, 2017 WL 5987435, at *1 (U.S. Dec. 4, 2017); Trump v. Hawaii, 15 No. 17A550, 2017 WL 5987406, at *1 (U.S. Dec. 4, 2017). 16 4. EO-4 and the Agency Memo 17 On October 24, 2017, the same day that EO-2’s 120-day refugee ban expired, 18 President Trump issued Executive Order 13,815, 82 Fed. Reg. 50,055 (Oct. 27, 2017) 19 (“EO-4”). EO-4 stated that continued suspension of refugee admission was not 20 necessary, EO-4 § 3(a), and that the Administration had improved USRAP vetting 21 processes so that they were “generally adequate to ensure the security and welfare of the 22 United States,” id. § 2(a). Nevertheless, EO-4 directed a continuing risk assessment as to ORDER - 8 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 9 of 65 1 “[c]ertain [c]ategories of [r]efugees.” Id. §§ 3(a)(i)-(ii). The Secretaries of DOS and 2 DHS and the DNI outlined the risk assessment and the EO-4 categories of refugees in the 3 Agency Memo, which was dated October 23, 2017, but released on October 24, 2017.4 4 (See Lin Decl. ¶ 3, Ex. B (attaching Agency Memo); see also Burman Decl. ¶ 3, Ex. B 5 (attaching Agency Memo).) 6 Plaintiffs seek to preliminarily enjoin certain provisions of the Agency Memo that 7 (1) indefinitely suspend “following-to-join” (“FTJ”) derivative refugees from entering the 8 United States, and (2) suspend for at least 90-days the entry of refugees who are 9 “nationals of, and stateless persons who last habitually resided in, 11 particular countries 10 previously identified as posing a higher risk to the United States through their designation 11 on the Security Advisory Opinion (“SAO”) list.” (Agency Memo at 2-3; see generally 12 Doe PI Mot.; JFS PI Mot.) 13 14 15 a. The FTJ Provisions The Agency Memo indefinitely suspends the FTJ process for refugees.5 (Agency Memo at 2-3.) Approximately 2,500 refugees in the United States are able to reunite 16 4 17 18 An addendum is attached to the Agency Memo, entitled “Addendum to Section 6(a) Memorandum,” which refers to the review of USRAP directed by Section 6(a) of EO-2 (“Agency Memo Addendum”). (See Burman Decl. (17-1707 Dkt. # 43) ¶ 3, Ex. B.) 5 19 20 21 22 Under the INA, subject to numerical limits set annually by the President, the Secretary of DHS may admit “any refugee who is not firmly resettled in any foreign country, is determined to be of special humanitarian concern to the United States, and is admissible (except as otherwise provided under ([8 U.S.C. § 1157(c)(3)]) as an immigrant.” 8 U.S.C. § 1157(c)(1). Refugees admitted under this provision are referred to as “principal refugees.” See 8 C.F.R. § 207.7(a). “Derivative refugees” are the spouses and unmarried minor children of an admitted principal refugee. See id. When derivative refugees travel to join the principal refugee more than four months after the principal refugee’s admission, they are FTJ derivative refugees, rather than “accompanying” derivative refugees. See id. ORDER - 9 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 10 of 65 1 with their immediate family members annually through the FTJ process. (Id. at 2 n.1.) 2 The Agency Memo states that most FTJ refugee applicants do not currently undergo the 3 same security procedures as the principal refugee who has already resettled in the United 4 States. (Id. at 2-3.) The Secretaries of DOS and DHS and the DNI determined that FTJ 5 refugees should not be admitted to the United States until additional screening procedures 6 are in place. (Id. at 3.) Although the Agency Memo does not exempt Kenya and 7 Thailand from its application, Defendants state that FTJ refugees processed at 8 resettlement centers in those two countries are not affected by the Agency Memo because 9 “adequate review mechanisms are already in place in those countries.” (JFS Resp. at 5, 10 n.3; see also Doe Resp. at 5; Higgins Decl. (Dkt. # 51-1) ¶ 11).) At oral argument, 11 Defendants clarified that during the Agency Memo’s indefinite FTJ suspension, the 12 Government was not just barring entry of FTJ refugees, but had completely stopped 13 processing FTJ refugee applications—except for FTJ refugees who are processed in 14 Thailand or Kenya. 15 b. The SAO Provisions 16 The Agency Memo also suspends for at least 90 days refugee admission of 17 nationals of 11 countries on the SAO list, as well as stateless persons who last resided in 18 those countries. (See Agency Memo at 2.) The Agency Memo does not identify the 19 countries, but Plaintiffs assert that the countries are Egypt, Iran, Iraq, Libya, Mali, 20 Somalia, Sudan, Syria, and Yemen, as well as North Korea and South Sudan.6 (See JFS 21 22 6 At oral argument, Defendants declined to confirm this list of the 11 SAO countries on the basis that it was “law enforcement sensitive information.” However, Defendants conceded ORDER - 10 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 11 of 65 1 PI Mot. at 7; see also Smith Decl. (17-1707 Dkt. # 44) ¶ 5.) Countries on the SAO list 2 “have been assessed by the U.S. government to pose elevated potential risks to national 3 security.” (Agency Memo Addendum at 1.) The SAO list for refugees was established 4 after September 11, 2001, and has changed over the years. (Id.) The most recent list was 5 updated in 2015. (Id.) USRAP already requires additional screening and procedures for 6 refugees from countries on the SAO list. (Id.) USRAP subjects these refugees to 7 additional vetting through SAOs, which are “DOS-initiated biographic check[s] 8 conducted by the Federal Bureau of Investigation and intelligence community partners.” 9 (Id. at 1 n.1.) 10 The Agency Memo requires the agencies to “conduct a review and analysis” of 11 USRAP for refugees from SAO countries for an additional 90 days—notwithstanding the 12 agencies’ review of USRAP pursuant to EO-1 and EO-2. (See Agency Memo at 2.) Like 13 President Trump’s prior EOs, the Agency Memo suspends refugee admission from SAO 14 countries unless resettlement “would fulfill critical foreign policy interests, without 15 compromising national security and the welfare of the United States,” a determination 16 made on a “case-by-case basis” (Id.) In addition, the Agency Memo diverts resources 17 dedicated to processing refugees who are citizens of (or stateless persons who last resided 18 in) SAO countries and reallocates those resources to processing refugee applicants from 19 non-SAO countries. (Id.) During oral argument, Defendants acknowledged that this 20 would impact the pace of processing for SAO refugees. Thus, even if the SAO 21 22 that the court could “rely on Plaintiffs’ allegations for purposes of addressing the issues” presented in these motions. ORDER - 11 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 12 of 65 1 suspension is lifted after 90-days, it will have a long-term effect. “Refugees have only a 2 narrow window of time to complete their travel, as certain security and medical checks 3 expire and must then be re-initiated.” Hawaii v. Trump, 871 F.3d 646, 664 (9th Cir. 4 2017) (“Hawaii II”). “Even short delays may prolong a refugee’s admittance.” Id. 5 B. Facts Pertaining to Specific Plaintiffs 6 1. Joseph Doe 7 Joseph Doe is a plaintiff in the Doe Case. (See Doe TAC (Dkt. # 42) ¶¶ 54-71.) 8 He is from Somalia, was first admitted to the United States in 2014 as a refugee, and 9 became a lawful permanent resident in 2016. (Joseph Decl. (Dkt. # 47) ¶¶ 2, 9, 11.) 10 Joseph fled Somalia with his family as a young child; he and his family eventually ended 11 up in a refugee camp in Kenya, where Joseph grew up, married, and began his own 12 family. (Id. ¶¶ 3-8.) Joseph’s wife and children were unable to come to the United States 13 with Joseph, remaining in Kenya. (Id. ¶¶ 8-9.) Joseph filed an I-730 petition to bring his 14 wife and children to the United States as FTJ refugees. (Id. ¶ 10.) Joseph’s wife and 15 children have completed their final interviews, security and medical clearances, received 16 a formal assurance from a refugee resettlement agency, and are on the brink of travel. 17 (Id. ¶ 12; Joseph Supp. Decl. (Dkt. # 56) ¶¶ 3-5.) Yet, Joseph’s family has not received 18 permission from DHS to travel. (Joseph Supp. Decl. ¶ 7.) Joseph’s two youngest 19 children were born in Kenya and have never been to Somalia. (Id. ¶ 9.) Nevertheless, 20 they are considered to be Somali citizens due to Joseph’s nationality. (Id.) Somalia is an 21 SAO country. (Smith Decl. ¶ 5.) Thus, the United States embassy in Somalia informed 22 Joseph that although his wife and oldest step-son, who are both Kenyan citizens, could ORDER - 12 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 13 of 65 1 obtain permission to travel to the United States, his 4-year-old and 5-year-old sons cannot 2 because they are considered Somali citizens. (See Joseph Supp. Decl. ¶ 10.) 3 2. John Doe 7 4 John Doe 7 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 20.) JFS Plaintiffs 5 base their joinder in the Doe motion for preliminary injunction on facts pertaining to Doe 6 7. (JFS Joinder at 1-2.) Doe 7 is an Iraqi national, who was admitted as a refugee to the 7 United States in 2014, along with his wife and two children. (Doe 7 Decl. (17-1707 Dkt. 8 # 58) ¶ 2.) He filed an I-720 petition for his 19-year-old son from his first marriage to 9 join him as an FTJ refugee, which the Government approved. (Id. ¶¶ 3-4.) His son has 10 completed his interview and fingerprinting and received a formal assurance from JFS-S 11 in November 2016. (Id. ¶ 4.) Since that time, Doe 7’s son has been waiting to travel to 12 the United States. (Id.) 13 3. Afkab Mohamed Hussein 14 Afkab Mohamed Hussein is a plaintiff in the JFS Case. (See JFS Compl. ¶ 12.) 15 He is a Somali national, who was admitted to the United States as a refugee in September 16 2015. (Hussein Decl. (17-1707 Dkt. # 48) ¶ 1.) His wife, who was pregnant with their 17 son at the time, did not travel with Mr. Hussein to the United States. (See id. ¶ 6.) Mr. 18 Hussein filed I-720 petitions for his wife and son to join him in the United States as FTJ 19 refugees, which the Government approved in June 2016. (Id. ¶¶ 10, 16.) His wife and 20 son were both born in Kenya but are considered Somali citizens. (See id. ¶¶ 11-12.) 21 // 22 // ORDER - 13 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 14 of 65 1 4. John Doe 1 2 John Doe 1 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 13.) Doe 1 is an Iraqi 3 former interpreter for the United States military. (Doe 1 Decl. (17-1707 Dkt. # 52) ¶¶ 1, 4 3.)7 Doe 1 and his family were in extreme danger in Iraq due to his work for the United 5 States military. (See id. ¶¶ 3-8.) As a result, in 2014, he fled Iraq for Cairo, Egypt 6 without his family. (Id. ¶¶ 8-9.) In September 2014, he applied for refugee status in the 7 United States. (Id. ¶ 12.) He is currently “in the end stage of processing for refugee 8 admissions.” (Id. ¶ 15.) He was conditionally approved for resettlement in the United 9 States in December 2015, and has received an assurance of sponsorship from a 10 resettlement agency. (Id.) In early October 2017, the International Organization for 11 Migration (“IOM”) told Doe 1 to “get ready to travel to the United States.” (Id. ¶ 16.) 12 While he was updating his passport to travel, EO-4 and the Agency Memo went into 13 effect, preventing him from traveling. (See id.) 14 5. John Does 2 and 3 15 John Doe 2 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 15.) John Doe 2 is an 16 Iraqi former interpreter for the United States Army. (Doe 2 Decl. (17-1707 Dkt. # 53) 17 ¶¶ 1, 3.) In 2010, he came to the United States to complete his PhD. (Id. ¶ 5.) Upon 18 graduation, he travelled back to Mosul, Iraq without his wife and children who remained 19 in the United States. (Id.) While he was in Mosul, ISIS seized control of the city, and he 20 21 22 7 (See also Vaught Decl. (17-1707 Dkt. # 49) ¶¶ 1-24 (describing the declarant’s work with Doe 1 as an interpreter while the declarant was serving in Falluja, Iraq with the United States Army Reserve’s Civil Affairs and Psychological Operations Command, his distress in having to leave Doe 1 behind in Iraq, his efforts to assist Doe 1 to resettle in the United States, and his objections to EO-4 and the Agency Memo).) ORDER - 14 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 15 of 65 1 has been unable to rejoin his family in the United States ever since. (Id. ¶ 6.) In 2015, he 2 applied for admission to the United States as a refugee. (Id. ¶¶ 7-8.) He is currently “in 3 the end stage of processing for refugee admissions.” (Id. ¶ 9; see also id. ¶ 12.) He was 4 “awaiting security checks and travel booking” when he was informed of the restrictions 5 on refugees that apply to Iraqi nationals in EO-1, EO-2, and EO-4. (Id.) He has been 6 stranded in Iraq and separated from his family for three years. (Id. ¶ 11.) One of his 7 children is now married to a lawful permanent resident, and he has two granddaughters 8 who are United States citizens. (Id. ¶ 5.) 9 John Doe 3 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 16.) He is a lawful 10 permanent resident of the United States and the son-in-law of Doe 2. (Doe 3 Decl. 11 (17-1707 Dkt. # 54) ¶ 1.) He is worried about Doe 2’s safety. Doe 2’s family in the 12 United States, which consists of his wife, five children, two sons-in-law, and two 13 granddaughters, miss him dearly, rely on him, and want to be reunited with him. (Id. 14 ¶¶ 2, 4-5.) 15 6. Jane Doe 4 16 Jane Doe 4 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 17.) Doe 4 is an 17 Egyptian, who has applied for refugee status in the United States. (Doe 4 Decl. (17-1707 18 Dkt. # 55) ¶¶ 1-2.) She is a transgender woman who faces extreme harassment and 19 persecution in Egypt because of her gender identity. (Id. ¶ 3; see also id. ¶ 6.) Until the 20 recent restrictions on refugee admissions to the United States, USRAP was processing 21 her refugee application on an expedited basis. (Id. ¶ 5.) 22 // ORDER - 15 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 16 of 65 1 7. Jane Does 5 and 6 2 Jane Doe 5 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 18.) She is an Iraqi 3 national and waiting to travel to the United States as a refugee. (Doe 5 Decl. (17-1707 4 Dkt. # 56) ¶¶ 2-3.) She hopes to live with her sister who resides in Castle Creek, Utah. 5 (Id. ¶ 2.) Her mother, father, another sister, and a brother also live in the United States. 6 (Id. ¶ 8.) In Iraq, Doe 5 works as an interpreter and administrator for American 7 companies. (Id. ¶ 3.) As a result of her work, she faces danger, threats, and harassment 8 in Iraq. (Id. ¶¶ 3-5) In November 2015, Doe 5 was kidnapped by Iraqi militants who 9 raped her multiple times and held her for about a month. (Id. ¶ 4.) When they released 10 her, they told her they would kill her if she continued to work with the Americans. (Id.) 11 She applied for refugee status in 2012. (Id. ¶ 7.) She has completed multiple stages of 12 the refugee admissions process and has been awaiting security checks and travel booking 13 since 2016. (Id.) 14 Jane Doe 6 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 19.) She is a United 15 States citizen and the sister of Doe 5. (Doe 6 Decl. (17-1707 Dkt. # 57) ¶ 1.) She fears for 16 her sister’s safety in Iraq and misses her deeply. (See id. ¶¶ 2, 4-6.) 17 All of the individual Plaintiffs have been injured by prolonged separation from 18 their family members. (See, e.g., Hussein Decl. ¶¶ 6, 18; Doe 2 Decl. ¶¶ 5, 10; Doe 3 19 Decl. ¶ 4; Doe 5 Decl. ¶ 8; Doe 6 Decl. ¶¶ 6-7; Doe 7 Decl. ¶¶ 5-7.) Those individual 20 Plaintiffs stranded abroad in perilous circumstances are injured by their inability to travel 21 to safety in the United States. (See, e.g., Doe 1 Decl. ¶¶ 3-11; Doe 2 Decl. ¶¶ 5-10; Doe 4 22 Decl. ¶ 7; Doe 5 Decl. ¶ 9.) ORDER - 16 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 17 of 65 1 8. The Organizational Plaintiffs 2 JFS Plaintiffs argue in conjunction with their motion for preliminary injunction 3 that EO-4 and the Agency Memo also harm the organizational Plaintiffs—JFS-S and 4 JFS-SV.8 (JFS PI Mot. at 12-13.) These agencies provide services to and help resettle 5 refugees in response to the moral, religious, and cultural commands of their religion. 6 (JFS-S Decl. (17-1707 Dkt. # 50) ¶¶ 2-8, 15-16; JFS-SV Decl. (17-1707 Dkt. # 51) ¶¶ 11- 7 18.) Due to the anticipated reduction in refugees from Muslim countries as a result of 8 EO-4 and the Agency Memo, these organizations anticipate that they will need to lay-off 9 employees, reduce services, divert resources to address fears raised by EO-4 and the 10 Agency Memo, cancel established programs, and lose relationships and goodwill with 11 volunteers and community partners who these organizations have cultivated relationships 12 with over the years. (See JFS-S Decl. ¶¶ 30-34; JFS-SV Decl. ¶¶ 27-35.) Further, the 13 agencies state that because they hire staff and volunteers and design programs to be 14 culturally and linguistically relevant to the communities they serve, they cannot simply 15 divert the lost resources to refugees who hail from other parts of the world and who are 16 unaffected by EO-4 and the Agency Memo. (JFS-SV Supp. Decl. (Dkt. # 82) ¶¶ 2-4; 17 JFS-S Supp. Decl. (Dkt. # 81) ¶¶ 3-6.) Indeed, the agencies will be forced to replace 18 staff, build new community relationships, and redesign programs. (JFS-SV Supp. Decl. 19 ¶ 4; JFS-S Supp. Decl. ¶¶ 6-7.) 20 // 21 22 8 Doe Plaintiffs did not assert harm to organizational Plaintiffs Episcopal Diocese of Olympia or the Council on American-Islamic Relations-Washington in support of their motion for a preliminary injunction. (See generally Doe PI Mot.) ORDER - 17 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 18 of 65 1 III. 2 ANALYSIS Doe Plaintiffs assert that they are entitled to a preliminary injunction because they 3 are likely to succeed on four claims: (1) the Agency Memo’s indefinite ban on FTJ 4 refugees is contrary to the INA (Doe PI Mot. at 9-12); (2) the Agency Memo’s indefinite 5 ban on FTJ refugees deprives Plaintiffs of due process under the Fifth Amendment (id. at 6 12-14); (3) the Agency Memo violates the Administrative Procedures Act’s (“APA”), 5 7 U.S.C. § 553(b), requirement for notice and comment rulemaking (id. at 14-15); and (4) 8 the Agency Memo violates the APA, 5 U.S.C. § 706(2)(A), because it is arbitrary and 9 capricious (id at 14-18). 10 JFS Plaintiffs assert that they are entitled to a preliminary injunction because they 11 are likely to succeed on four claims: (1) the Agency Memo’s SOA provisions violate the 12 Establishment Clause (JFS PI Mot. at 13-17); (2) the Agency Memo’s SAO provisions 13 violate the APA, 5 U.S.C. § 706(2)(A), because they are arbitrary and capricious (id. at 14 17-18); (3) the Agency Memo violates the APA, 5 U.S.C. § 706(2)(C), because it is ultra 15 vires and contrary to the INA (id. at 19-22); and (4) the Agency Memo violates the APA 16 because the agency failed to engage in required notice and comment rulemaking (id. at 17 20).9 18 Defendants oppose both Doe Plaintiffs’ and JFS Plaintiffs’ substantive arguments 19 that they are likely to prevail on these claims. (Doe Resp. at 12-21; JFS Resp. at 15-28.) 20 21 22 9 JFS Plaintiffs also assert that the FTJ provisions of the Agency Memo violate the APA, the INA, and the Due Process Clause of the Fifth Amendment (JFS PI Mot. at 22-23), and they filed a formal notice of joinder in Doe Plaintiffs’ motion (see JFS Joinder.) ORDER - 18 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 19 of 65 1 In addition, Defendants oppose both motions on a variety of justiciability grounds. (Doe 2 Resp. at 7-12; JFS Resp. at 5-15.) The court addresses Defendants’ justicaibility issues 3 first, and then addresses the substance of the Doe and JFS motions for preliminary 4 injunctions. In addressing the substance of Plaintiffs’ motions, the court turns to the 5 statutory issues first. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 6 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that 7 courts avoid reaching constitutional questions in advance of the necessity of deciding 8 them.”). Because the court ultimately concludes that Plaintiffs show a likelihood of 9 success on the merits of their statutory claims, the court does not reach either JFS 10 Plaintiffs’ Establishment Clause claim or Doe Plaintiffs’ due process claim. See 11 Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) 12 (“[I]f a case can be decided on either of two grounds, one involving a constitutional 13 question, the other a question of statutory construction or general law, the Court will 14 decide only the latter.”). 15 A. Justiciability Defendants challenge the justiciability of both motions for preliminary injunction 16 17 on four grounds: (1) Plaintiffs lack Article III standing (Doe Resp. at 7-8; JFS Resp. at 18 5-9); (2) Plaintiffs’ claims are barred by principles of nonreviewability (Doe Resp. at 8- 19 11; JFS Resp. at 10-14); (3) Plaintiffs fail to identify any final agency action (Doe Resp. 20 at 11-12; JFS Resp. at 14-15), and (4) Plaintiffs’ claims concerning the SAO provisions 21 are unreviewable under 5 U.S.C. § 701(a) (JFS Resp. at 15). In addition to these issues, 22 // ORDER - 19 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 20 of 65 1 the court also addresses statutory standing because both Doe Plaintiffs and JFS Plaintiffs 2 raise statutory claims.10 3 1. Article III Standing 4 To satisfy Article III standing, “a plaintiff must show (1) [he or she] has suffered 5 an ‘injury in fact’[;] . . . (2) the injury is fairly traceable to the challenged action of the 6 defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be 7 redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. 8 (TOC), Inc., 528 U.S. 167, 180-81 (2000) (internal citation omitted). At this preliminary 9 stage of the litigation, Plaintiffs may rely on the allegations in their complaint and 10 whatever other evidence they submit in support of their preliminary injunction motions to 11 meet their burden. Hawaii I, 859 F.3d at 762; Washington, 847 F.3d at 1159. Defendants 12 challenge the standing of both the individual and organizational Plaintiffs. (JFS Resp. at 13 6-7; Doe Resp. at 7.) a. Individual Plaintiffs 14 15 Plaintiffs allege in their complaints that the SAO and FTJ provisions of the 16 Agency Memo extend the separation of citizens and lawful residents in the United States 17 from their family members abroad. (See generally Doe TAC; JFS Compl.) Plaintiffs 18 provide numerous declarations supporting those allegations, which the court has detailed 19 above. See supra § II.B.1-7. Prolonged separation from a family member is an injury in 20 21 22 10 The court does not reach Doe Plaintiffs’ due process claim or JFS Plaintiffs’ Establishment Clause claim. Thus, the court addresses only whether Plaintiffs have standing to challenge the Agency Memo based on their APA and INA claims. ORDER - 20 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 21 of 65 1 fact sufficient to establish Article III standing.11 See Hawaii I, 859 F.3d at 763 (holding 2 that a citizen had Article III standing to challenge EO-2 because EO-2 prolonged the 3 separation of the citizen and his family from reunification with his mother-in-law by 4 stalling her visa application); see also Ching v. Mayorkas, 725 F.3d 1149, 1157 (9th Cir. 5 2013) (“The right to live with and not be separated from one’s immediate family is ‘a 6 right that ranks high among the interests of the individual.’”) (quoting Landon v. 7 Plascenia, 459 U.S. 21, 34-35 (1982)); Leiva-Perez v. Holder, 640 F.3d 962, 969-70 (9th 8 Cir. 2011) (recognizing that “important [irreparable harm] factors include separation 9 from family members” (internal quotation marks omitted)); Legal Assistance for 10 Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469, 471-73 (D.C. Cir. 1995), 11 vacated on other grounds, 519 U.S. 1 (1996) (holding that U.S. resident sponsors had 12 standing to challenge DOS’s refusal to process visa applications because the prolonged 13 separation of immediate family members resulted in injury to the sponsors); IRAP, 137 S. 14 Ct. at 2089 (“An American individual . . . that has a bone fide relationship with a 15 particular person seeking to enter the country as a refugee can legitimately claim concrete 16 hardship if that person is excluded.”); Int’l Refugee Assistance Project v. Trump, No. CV 17 TDC-17-0361, 2017 WL 4674314, at *12 (D. Md. Oct. 17, 2017) (citizens and lawful 18 permanent residents established “injury in fact” for purposes of Article III standing 19 because EO-3’s “indefinite ban on the issuance of immigrant and nonimmigrant visas for 20 // 21 22 11 At oral argument, Defendants conceded that separation from “one’s loved ones” can constitute such harm. ORDER - 21 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 22 of 65 1 nationals of the Designated Countries has imposed an actual, imminent injury on [the 2 plaintiffs] by prolonging their separation from family members.”). 3 Nevertheless, Defendants argue that none of the individual Plaintiffs have 4 demonstrated that suspension of FTJ refugee processing has caused them harm. First, 5 Defendants argue that Joseph fails to show any injury because his wife and children are 6 from Kenya, and Kenya is one of two countries in which the Government is continuing to 7 process FTJ refugee applications because screening procedures are already in place to 8 ensure appropriate FTJ scrutiny. (Doe Resp. at 2, 6-7; Higgins Decl. ¶ 11 (explaining 9 that in Kenya and Thailand “the security vetting received for a Form I-730 beneficiary is 10 the same as the screening received for principal refugee applicants,” and therefore the 11 Government is continuing to issue travel authorization to approve FTJ refugees who are 12 processed in those locations).) However, as noted above, two of Joseph’s children are 13 considered Somali citizens and are, therefore, subject to the Agency Memo’s SAO 14 provisions. (See Joseph Supp. Decl. ¶ 9.) Accordingly, the processing of their FTJ 15 refugee applications remain on hold. (See id. ¶ 10.) 16 Defendants also argue that Mr. Hussein’s family is in Kenya, and thus he has no 17 standing to challenge the FTJ provisions of the Agency Memo. (JFS Resp. at 6 (citing 18 Higgins Decl. ¶ 11).) However, Mr. Hussein’s family members are also Somali 19 nationals, and therefore subject to the SAO provisions. (See Hussein Decl. ¶¶ 10-11.) 20 Because both Joseph’s and Mr. Hussein’s FTJ refugee applications for their family 21 members are subject to the Agency Memo’s SAO provisions, Joseph and Mr. Hussein 22 have standing to challenge the Agency Memo. Indeed, during the December 21, 2017, ORDER - 22 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 23 of 65 1 hearing on Plaintiffs’ motions, Defendants withdrew their argument that Joseph lacked 2 standing. 3 In any event, Doe 7 also has an approved FTJ refugee application for his 19-year 4 old son to come to the United States. (Doe 7 Decl. ¶ 4) Doe 7’s son is an Iraqi national 5 (id. ¶ 3), and so Doe 7’s FTJ application and the processing of his son’s FTJ refugee 6 status are subject to both the FTJ and SAO provisions of the Agency Memo (id. ¶¶ 3-10). 7 Accordingly, the court concludes that Doe 7 has standing. One party with standing is 8 sufficient to fulfill Article III’s case-or-controversy requirement. Rumsfeld v. Forum for 9 Acad. & Institutional Rights, Inc., 547 U.S. 47, 52, n.2 (2006). 10 Nevertheless, Defendants argue that it is speculative to infer that the Agency 11 Memo’s FTJ and SAO provisions are the source of any delay in the processing of Doe 7’s 12 FTJ refugee application as opposed to any other number of factors that might delay a 13 refugee’s application. (JFS Resp. at 6.) Whether Doe 7’s son’s application has other 14 hurdles to cross, however, does not diminish the fact that the SAO and FTJ provisions of 15 the Agency Memo add two more. Removing these hurdles would speed the resolution of 16 any others that may exist since processing of these applications is not presently 17 proceeding at all. (See Agency Memo.) In any event, the evidence before the court is 18 that Doe 7’s FTJ application for his son has been approved, his son has completed his 19 interview and fingerprinting, has received an assurance from a refugee resettlement 20 agency in the United States, and is waiting to travel. (Doe 7 Decl. ¶ 4.) At this stage of 21 the proceedings, this is sufficient to establish harm for purposes of Article III standing 22 with respect to both the SAO and FTJ provisions. ORDER - 23 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 24 of 65 1 Defendants also argue that the individual Plaintiffs have no standing to challenge 2 the SAO provisions because the Agency Memo provides for exceptions on a case-by-case 3 basis. (JFS Resp. at 6-7.) Defendants argue that Plaintiffs cannot demonstrate harm until 4 they demonstrate that they “cannot qualify for this exemption.” (See id. at 7 n.4.) In 5 Hawaii I, the Ninth Circuit rejected a virtually identical argument when it concluded that 6 EO-2’s discretionary waiver did not undermine Article III standing. 859 F.3d at 768. 7 Indeed, the Ninth Circuit stated that the plaintiffs would “face substantial hardship if [the 8 court] were to first require that they try to obtain a waiver before [the court] . . . 9 consider[ed] their case.” Id.; see also Hawaii III, 2017 WL 6547095, at *6 (“[EO-3’s] 10 waiver provisions are not a sufficient safety valve and do not mitigate the substantial 11 hardships Plaintiffs have already suffered and will continue to suffer due to [EO-3].”) 12 (internal quotation marks omitted); Int’l Refugee Assistance Project v. Trump, 2017 WL 13 4674314, at *16 (stating in the context of analyzing the ripeness of challenges to EO-3 14 that “the waiver process itself presents an additional hurdle not faced by other visa 15 applicants which would delay reunification, thus creating a harm not contingent on future 16 events”). 17 Finally, Defendants parse the various individual Plaintiffs’ declarations and argue 18 “it is doubtful that these applicants are on the brink of travel such that the 90-day SAO 19 review period will have any concrete impact on them.” (JFS Resp. at 7.) Whether 20 Defendants are on the brink of travel or not, however, their separation from their family 21 members will be prolonged as a result of the SAO provisions. The Agency Memo 22 specifically states that, during the 90-day review, DOS and DHS will “take resources that ORDER - 24 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 25 of 65 1 may have been dedicated to processing nationals of, or stateless persons who last 2 habitually resided in, SAO countries and . . . reallocate them to process applicants from 3 non-SAO countries for whom the processing may not be as resource intensive.” (Agency 4 Memo at 2.) Indeed, Defendants conceded that during the suspension the Government is 5 redirecting “processing resources” away from SAO countries and that refugee 6 applications will not be processed at the same pace. Thus, even assuming refugee 7 applications from SAO countries are processed at all during the review period, they will 8 undoubtedly be slowed by this resource diversion, prolonging the individual Plaintiffs’ 9 separation from their family members. 10 In sum, the court concludes that the individual Plaintiffs have sufficiently 11 demonstrated harm due to the SAO provisions and that at least one individual Plaintiff— 12 Doe 7—has sufficiently alleged harm due to the FTJ provisions. The court concludes 13 that the final two aspects of Article III standing—causation and redressability—are also 14 satisfied. These Plaintiffs’ injuries are traceable to EO-4 and its accompanying Agency 15 Memo, and, if Plaintiffs prevail, a decision enjoining portions of the Agency Memo 16 would redress those injuries. 17 18 b. Organizational Plaintiffs Plaintiffs assert that JFS-S and JFS-SV have standing as organizational Plaintiffs 19 because the Agency Memo has caused them to divert resources away from their core 20 mission of resettling refugees. (See JFS PI Mot. at 12; see generally JFS-S Decl.; 21 JFS-SV Decl.) This is ordinarily sufficient to demonstrate harm underpinning Article III 22 standing. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (diversion of ORDER - 25 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 26 of 65 1 resources confers Article III standing); Fair Hous. Council of San Fernando Valley v. 2 Roomate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012) (“[A]n organization has ‘direct 3 standing to sue [when] it showed a drain on its resources from both a diversion of its 4 resources and frustration of its mission.’”) (second alteration in original) (quoting Fair 5 Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)). 6 Defendants argue that JFS-S and JFS-SV have not shown that the Agency Memo 7 impairs their core mission because EO-4 largely resumes USRAP, “subject to conditions 8 for applicants of special concern.” (JFS Resp. at 9.) Further, Defendants contend that, 9 although the Agency Memo may temporarily alter the composition of refugees entering 10 the country, it does not alter the overall number of refugees entering the country. (Id.) 11 Thus, according to Defendants, the organizational mission of the agencies is not 12 impaired. (Id.) 13 JFS-S and JFS-SV, however, cannot make up the deficits in the arrival of FTJ 14 refugees and refugees from SAO countries by receiving and serving other refugees. Each 15 organization devoted significant resources to serving Muslim and Arabic-speaking 16 refugees because these refugees represent a large percentage of their clients, including by 17 hiring staff and designing programs specifically devoted to serving these clients. (JFS-S 18 Supp. Decl. ¶¶ 5-7; JFS-SV Supp. Decl. ¶¶ 3-4.) Yet, the effect of the Agency Memo is 19 likely to be a significant reduction in the admission of Muslim refugees into the United 20 States. Over 40% of all refugees resettled in the United States within the last two fiscal 21 years came from one of the SAO countries. (Smith Decl. ¶ 15.) Of that group, 99% 22 came from one of the nine Muslim-majority SAO countries, and over 80% identified as ORDER - 26 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 27 of 65 1 Muslim. (Id. ¶¶ 15, 17.) The Agency Memo’s FTJ provisions are also likely to have a 2 disproportionate effect on Muslim refugees because it is generally available only to 3 refugees admitted in the last two years, 8 C.F.R. § 207.7(d), which is the period of time 4 when the admission of Muslim refugees reached a record high. (Burman Decl. ¶ 41, Ex. 5 NN.) The resources JFS-S and JFS-SV devoted to Muslim and Arabic-speaking refugees 6 cannot simply be shifted to serving other refugees from other parts of the world; instead 7 these resources are wasted, and the agencies’ organizational purpose is thereby frustrated. 8 (See JFS-S Supp. Decl. ¶¶ 6-7; JFS-SV Supp. Decl. ¶ 4); see, e.g., El Rescate Legal 9 Servs., Inc. v. Exec. Office of Immigration Rev., 959 F.2d 742, 748 (9th Cir.1992) (legal 10 services organizations “established to assist Central American refugee clients, most of 11 whom [we]re unable to understand English,” who were seeking asylum and the 12 withholding of deportation, had standing to challenge government policy of not providing 13 full translation of those proceedings).12 Accordingly, the court concludes that both JFS-S 14 and JFS-SV have standing as organizational plaintiffs. 15 JFS-S and JFS-SV also assert third-party standing because they have a close 16 relationship to the individual Plaintiffs whose claims they raise and these individual 17 Plaintiffs are unable to protect their interests on their own. (JFS PI Mot. at 13 (citing 18 19 20 21 22 12 The El Rescate court expounded on the issue of organizational standing immediately after declaring the issue moot, 959 F.2d at 748, and so this portion of the decision is arguably dicta. However, at least one subsequent Ninth Circuit panel described this part of El Rascate as a holding. See Fair Hous. of Marin, 285 F.3d at 904-05 (“This Court . . . held that “[t]he allegation that the [the government’s] policy frustrates these goals [of helping refugees obtain asylum and withhold deportation] and requires the organizations to expend resources in representing clients they otherwise would spend in other ways is enough to establish standing.”) (second and fourth alterations in original) (emphasis added). ORDER - 27 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 28 of 65 1 Powers v. Ohio, 499 U.S. 400, 410-11 (1991)).) Defendants’ only response is that the 2 organization’s clients have suffered no injury. (JFS Resp. at 9, n.7.) The court, however, 3 concludes otherwise. See supra § III.A.1.a. Accordingly, the court also concludes based 4 on the record presented at this point in the proceedings that JFS-S and JFS-SV have third- 5 party standing. 6 2. Statutory Standing 7 Although Defendants do not raise this issue, because the various individual 8 Plaintiffs, as well as JFS-S and JFS-SV, assert a statutory claim under the INA, the court 9 “must also determine whether they meet the requirement of having interests that ‘fall 10 within the zone of interests protected by the law invoked.’” Hawaii I, 859 F.3d at 766 11 (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., --- U.S. ---, 134 S. Ct. 12 1377, 1388 (2014)). The “‘zone of interests’ test is ‘not meant to be especially 13 demanding,’ and a court should deny standing only ‘if the plaintiff’s interests are so 14 marginally related to or inconsistent with the purposes implicit in the statute that it cannot 15 reasonably be assumed that Congress intended to permit the suit.’” Cetacean Cmty. v. 16 Bush, 386 F.3d 1169, 1177 (9th Cir. 2004) (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 17 388, 399 (1987)). The “benefit of any doubt goes to the plaintiff.” Match-E-Be-Nash- 18 She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012). 19 In Hawaii I, the Ninth Circuit had “little trouble concluding that [the citizen 20 plaintiff] [wa]s within the zone of interests of the INA to challenge EO2 based on [his 21 INA] statutory claim,” because “[h]e assert[ed] that the travel ban prevents his mother-in- 22 law from reuniting with his family.” 859 F.3d at 766 (citing Legal Assistance for ORDER - 28 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 29 of 65 1 Vietnamese Asylum Seekers, 43 F.3d at 471-72 (“The INA authorizes the immigration of 2 family members of the United States citizens and permanent resident aliens. In originally 3 enacting the INA, Congress implemented the underlying intention of our immigration 4 laws regarding preservation of the family unit. Given the nature and purpose of the 5 statute, the resident appellants fall well within the zone of interest Congress intended to 6 protect.”) (internal quotation marks, citations, and alterations omitted)). Does 3 and 6, a 7 lawful permanent resident and a citizen, respectively, both claim that the Agency Memo 8 prevents reuniting with their family members. See supra §§ II.B.5, 7. The court finds no 9 legitimate basis for distinguishing the present situation from that of the plaintiff in 10 Hawaii I. Accordingly, the court concludes that Does 3 and 6 fall within the zone of 11 interest of the INA and the Refugee Act of 1980. 12 JFS-S and JFS-SV Plaintiffs also fall within the zone of interest of the INA and 13 the Refugee Act of 1980. In Hawaii I, the Ninth Circuit held that the States’ “interest in 14 effectuating its refugee resettlement policies and programs also falls within the zone of 15 interests protected by the INA.” 859 F.3d at 766. The Ninth Circuit noted that INA 16 provisions concerning refugees “were amended to provide a ‘systematic procedure’ for 17 the admission of refugees into the United States, as well as ‘uniform provisions for the 18 effective resettlement and absorption of those refugees admitted.’” Id. at 766-67 (quoting 19 Refugee Act of 1980, Pub. L. No. 96-212, § 101, 94 Stat. 102 (1980)). Making 20 provisions for the resettlement and absorption of refugees into the United States is the 21 core mission of both JFS-S and JFS-SV. (JFS-S Decl. ¶¶ 2-7, 15-16, 30, 34; JFS-SV 22 Decl. ¶¶ 11, 18, 36-37.) Thus, these organizations’ interests in effectuating refugee ORDER - 29 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 30 of 65 1 resettlement and absorption falls within the zone of interest protected by the INA and the 2 Refugee Act of 1980.13 3 3. Nonreviewability 4 Like they have in other cases involving the President’s various EOs on 5 immigration, Defendants assert that the “doctrine of consular nonreviewability” applies 6 to bar the court’s review of Doe and JFS Plaintiffs’ statutory claims. (See Doe Resp. at 7 8-10; JFS Resp. at 12-13.) Courts have traditionally applied the doctrine of consular 8 nonreviewability to bar challenges to decisions by consular officials adjudicating 9 individual visa applications. See Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 10 (9th Cir. 1986) (“[I]t has been consistently held that the consular official’s decision to 11 issue or withhold a visa is not subject either to administrative or judicial review.”). 12 Defendants rely on out-of-circuit authority to argue for a significant expansion of the 13 doctrine and support their position by stating that “[t]he principle underlying that doctrine 14 applies regardless of the manner in which the Executive Branch denies entry to an alien 15 abroad, including a refugee applicant.” (See Doe Resp. at 8 (citing Haitian Refugee Ctr., 16 Inc. v. Baker, 953 F.2d 1498, 1506 (11th Cir. 1992).)14 17 18 19 20 21 22 13 The court does not decide if Plaintiffs who are located abroad have statutory standing under the INA because “[i]f one party to an action has standing, a court need not decide the standing issue as to other parties when it makes no difference to the merits of the case.” See Legal Assistance for Vietnamese Asylum Seekers, 45 F.3d at 472 (declining to decide if refugees in Hong Kong or the organizational plaintiff had standing because the court had already found that the family members of refugees in the United States were within the zone of interest of the INA). 14 In Baker, the Eleventh Circuit relied in part on the doctrine of consular nonreviewability to preclude review of an Executive Order and agency guidelines that were ORDER - 30 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 31 of 65 1 But the Ninth Circuit has already rejected Defendants’ position. Just as in 2 Hawaii I, individual Plaintiffs here “do not seek review of an individual consular 3 officer’s decision to grant or to deny a visa pursuant to valid regulations, which could 4 implicate the consular nonreviewability doctrine,” but rather the government’s 5 “promulgation of sweeping immigration policy.” 859 F.3d at 768. “Courts can and do 6 review both constitutional and statutory ‘challenges to the substance and implementation 7 of immigration policy.’” Id. (quoting Washington, 847 F.3d at 1163; see Hawaii III, 8 2017 WL 6547095, at *6-*7 (concluding that the doctrine of consular nonreviewability 9 did not apply to bar the court’s review of EO-3); see also Sale v. Haitian Ctrs. Council, 10 Inc., 509 U.S. 155 (1993) (without discussing consular nonreviewabilty, but over the 11 Government’s objections that the doctrine applied and barred review, reviewing the 12 merits of a statutory claim challenging an EO that blocked the entry of Haitians); Sale v. 13 Haitian Ctrs. Council, Inc., 1993 WL 754941 (U.S.), 16-22 (U.S. Oral. Arg., 1993) 14 (arguing that the doctrine bars review). Thus, the court rejects Defendants’ assertion that 15 this doctrine bars judicial review of EO-4 and the Agency Memo.15 16 17 18 19 20 21 22 promulgated thereunder, which provided for the interdiction and return of Haitians on the high seas who were deemed to be economic rather than political refugees. 953 F.2d at 1507. 15 In Hawaii I, the Ninth Circuit declined to apply Mandel’s “facially legitimate and bona fide” standard in the context of a statutory challenge to EO-2. 859 F.3d at 769 n.9. The court recognizes that the Supreme Court vacated Hawaii following the expiration of EO-2. See Hawaii v. Trump, 874 F.3d 1112, 1112 (9th Cir. 2017) (“In view of the Supreme Court order dated October 24, 2017, the court's opinion filed June 12, 2017, is vacated and the appeal is dismissed as moot.”). But Hawaii I, 859 F.3d at 769 n.9, remains persuasive authority despite the Supreme Court’s vacatur. See Orhorhaghe v. INS, 38 F.3d 488, 493 n.4 (9th Cir. 1994) (following as persuasive authority a decision vacated by the Supreme Court as moot). Hawaii I is closely analogous and related to the issues presently before this court, and as a district court within the Ninth Circuit, this court is unwilling to ignore it or depart from its reasoning. ORDER - 31 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 32 of 65 1 4. Final Agency Action 2 Finality is a prerequisite to judicial review of agency action. See 5 U.S.C. § 704. 3 To be final, the agency action first “must mark the consummation of the agency’s 4 decisionmaking process—it must not be of a merely tentative or interlocutory nature.” 5 Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 591 (9th Cir. 6 2008). Second, the action “must be one by which rights or obligations have been 7 determined, or from which consequences will flow.” Id. Defendants do not contest the first requirement. (See JFS Resp. at 14-15; Doe 8 9 Resp. at 11-12.) But Defendants contend that, even if Plaintiffs could show the first 10 requirement, they cannot show the second requirement “because the implementation 11 period does not determine any rights or obligations or prescribe any legal consequences.” 12 (JFS Resp. at 14-15; Doe Resp. at 11.) Indeed, according to Defendants, a processing 13 // 14 15 16 17 18 19 20 21 22 Nevertheless, during oral argument, Defendants argued that the Supreme Court’s decision in Fiallo v. Bell, 430 U.S. 787 (1977), trumped the Ninth Circuit’s rulings in both Hawaii I, 859 F.3d at 769 n.9, and Washington, 847 F.3d at 1161-64, concerning the applicability of the Mandel standard. However, Fiallo is distinguishable. In Fiallo, the Supreme Court was not considering a challenge to agency action that was alleged to be ultra vires or outside of the agency’s statutory authority under the INA. Rather, Fiallo involved an action to enjoin provisions of the INA itself as constitutionally invalid. 430 U.S. at 788 (“This case brings before us a constitutional challenge to §§ 101(b)(1)(D) and 101(b)(2) of the Immigration and Nationality Act of 1952.”). In that context, the Supreme Court noted the “limited scope of judicial inquiry into immigration legislation” and emphasized “‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Id. at 792 (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909) (emphasis added)). Accordingly, the Court limited its review of the statutory provision at issue to the “facially legitimate and bona fide” standard found in Mandel. Id. at 795 (citing Mandel, 408 U.S. at 770). Because the issues before this court involve a statutory challenge to agency action in the form of the Agency Memo, and not a constitutional challenge to any provision of the INA, Fiallo is not applicable here. ORDER - 32 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 33 of 65 1 delay alone does not alter the family’s “legal situation,” and thus the FTJ implementation 2 program is not a final agency action subject to judicial review.16 (Id.) 3 To the contrary, whether the Agency Memo produces a “suspension” or an 4 indefinite delay, the Agency Memo has significant real-world impacts on Plaintiffs’ 5 various situations. See Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (explaining 6 that “the core question is whether . . . the result of that [challenged agency] process is one 7 that will directly affect the parties.”). Under similar circumstances involving EO-3, the 8 district court in Maryland stated: “As for Defendants’ claim that the agency action to 9 date is not ‘final,’ [EO-3] is already in effect as to certain individuals and is being 10 enforced by federal agencies.” Int’l Refugee Assistance Project v. Trump, 2017 WL 11 4674314, at *18. The same is true here. As discussed above, the individual Plaintiffs are 12 subject to the Agency Memo’s provisions, and the effect of those provisions is to prolong 13 the separation of family members in some cases and prevent escape from perilous 14 15 16 17 18 19 20 21 22 16 The cases Defendants rely upon are readily distinguishable. In Fairbanks, the Ninth Circuit held that the Army Corps of Engineers’ determination that certain municipal property contained wetlands subject to regulation under the Clean Water Act was only “a bare statement of the agency’s opinion” that neither required the municipality to do or to forebear from anything. 543 F.3d at 594. As such, the Corps’ opinion did not determine any of the municipality’s rights or obligations or result in any legal consequences. Id. at 595. Defendants’ reliance on International Brotherhood of Teamsters v. U.S. Department of Transportation, 861 F.3d 944, 952 (9th Cir. 2017), is also misplaced. In that case, an agency’s report on a pilot program involving Mexico-domiciled trucking companies’ long-haul operations in the United States had no legal consequences, but was merely the last step in completing a pilot program to clear the way for Mexico-domiciled carriers. Id. As such, the report “did not change the legal situation” and was not, therefore, final agency action. Id. In contrast to the opinion and report in the cases cited by Defendants, the Agency Memo’s FTJ and SAO provisions are presently being implemented by USCIS. (See Higgins Decl. ¶¶ 11-16.) Those requirements have concrete impacts upon Plaintiffs by delaying the reunification of families or the departure from dangerous circumstances. See supra §§ II.B.1-7. ORDER - 33 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 34 of 65 1 circumstances in others. See supra § IIB.1-7. And, as the Ninth Circuit in Hawaii II 2 noted, even short delays can have cascading effects that prolong a refugee’s processing 3 and ultimate admission. 871 F.3d at 644 (“Refugees have only a narrow window of time 4 to complete their travel, as certain security and medical checks expire and must then be 5 re-initiated. Even short delays may prolong a refugee’s admittance.”); (see also JFS-S 6 Supp. Decl. ¶ 8 (explaining the cascading effects of even a short delay in processing).) 7 Based on the foregoing record and authorities, the court concludes that the Agency Memo 8 represents final agency action. 9 10 5. Agency Discretion Defendants argue in two conclusory sentences that the court is stripped of 11 jurisdiction to review Plaintiffs’ statutory challenges to the Agency Memo’s SAO 12 provisions under 5 U.S.C. § 701(a). (See JFS Resp. at 15.) Specifically, Defendants 13 argue that 8 U.S.C. § 1157(c)(1) commits the admission of refugees to the Secretary’s 14 discretion, whereas 5 U.S.C. § 701(a) prohibits APA review of agency action that “is 15 committed to agency discretion by law.” The court rejects Defendants’ argument. There 16 is a “strong presumption that Congress intends judicial review of administrative action.” 17 Helgeson v. Bureau of Indian Affairs, 153 F.3d 1000, 1003 (9th Cir. 1998). Section 18 701(a) overcomes this presumption only in “rare instances where statutes are drawn in 19 such broad terms that in a given case there is no law to apply, thereby leaving the court 20 with no meaningful standard against which to judge the agency’s exercise of discretion.” 21 Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th Cir. 2011). “[T]he mere 22 fact that a statute contains discretionary language does not make agency action ORDER - 34 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 35 of 65 1 unreviewable.” Id. Indeed, section 701(a)(2) has “never been thought to put exercises of 2 discretion beyond judicial review.” ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1071 (9th 3 Cir. 2015). 4 ASSE International, Inc. v. Kerry presents an analogous situation. See 803 F.3d. at 5 1069-72. In that case, although the authorizing statute gave the DOS complete discretion 6 in determining whether to create certain exchange programs, the Ninth Circuit found that 7 the DOS’s regulations “provide more than an ample basis in law for [the court] to review 8 its decision under the APA.” Id. at 1070. These regulations created the program, provide 9 who is eligible to become a sponsor, and “establish[ed] a comprehensive scheme for 10 administering an exchange program.” Id. Because these regulations “have the force of 11 law” and carry “real consequences for [those] failing to abide by them,” the Ninth Circuit 12 concluded that judicial review was not prevented by the discretionary language in the 13 authorizing statute. Id. at 1070-71. 14 Defendants have similarly failed to rebut the strong presumption of judicial 15 reviewability. Although 8 U.S.C. § 1157(c)(1) contains discretionary language, the 16 subsequent regulations promulgated by DHS provide the “meaningful standard” by which 17 the court can review Defendants’ exercise of discretion. See 8 C.F.R. § 207; Pinnacle 18 Armor, Inc., 648 F.3d at 719. Like the regulations in ASSE International, the regulations 19 governing the admission of refugees implement the Refugee Act of 1980, detail 20 eligibility to apply for refugee status, and lay out “a comprehensive scheme” for the 21 refugee program. See 803 F.3d at 1070; 8 C.F.R. §§ 207.1-9. These regulations are 22 binding, and failure to abide by these regulations results in “real consequences.” See 803 ORDER - 35 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 36 of 65 1 F.3d at 1070; 8 U.S.C. § 1157(c)(1). Thus, as in ASSE International, the regulations 2 provide a “meaningful standard” and “more than an ample basis in law” against which to 3 judge the Defendants’ decisions under the APA. See also Hawaii III, 2017 WL 6547095, 4 at *8 (concluding that 5 U.S.C. § 701(a)(2) did not apply to bar review of EO-3 “where, 5 as here, a court is tasked with reviewing whether an executive action has exceeded 6 statutory authority”). 7 8 9 10 Nor does 8 U.S.C. § 1252(a)(2)(B)(ii) strip the court of jurisdiction over this action.17 Section 1252(a)(2)(B)(ii) states that no court shall have jurisdiction to review: Any other decisions or action of the Attorney General or Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security[.] 11 Section 1157(c)(1) specifies that the admission of refugees is within the Secretary’s 12 discretion. Were Plaintiffs challenging a denial of refugee admission, section 13 1252(a)(2)(B)(ii) may well bar judicial review. Instead, Plaintiffs are challenging the 14 failure to act on refugee applications. And while section 1157(c)(1) grants the Secretary 15 discretion in deciding the outcome of a refugee application, it does not specify that the 16 Secretary has discretion to suspend adjudicating such applications. See 8 U.S.C. 17 § 1157(c)(1). In other words, the Secretary may have discretion over what the decision 18 will be, but not over whether a decision will be made. See 5 U.S.C. § 555(b) (“With due 19 20 21 22 17 Defendants do not mention 8 U.S.C. § 1252(a)(2)(B)(ii) in their discussion of jurisdiction stripping, focusing instead only on 5 U.S.C. § 701(a). (See JFS Resp. at 15.) However, because section 1252(a)(2)(B)(ii) implicates the court’s subject matter jurisdiction, the court addresses the issue. ORDER - 36 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 37 of 65 1 regard for the convenience and necessity of the parties or their representatives and within 2 a reasonable time, each agency shall proceed to conclude a matter presented to it.” 3 (emphasis added)). Thus, neither section 1157(c)(1) nor any other statute provides the 4 “specified” discretionary authority to suspend adjudicating refugee status that would 5 trigger section 1252(a)(2)(B)(ii)’s bar on judicial review.18 See Spencer Enters., Inc. v. 6 United States, 345 F.3d 683, 690 (9th Cir. 2003). 7 Alternatively, section 1252(a)(2)(B)(ii) does not divest this court of jurisdiction 8 because it applies only to acts that are “matters of pure discretion, rather than discretion 9 guided by legal standards.” See Spencer, 345 F.3d at 690. The decision regarding 10 refugee admission, however, is guided by a series of eligibility requirements set out in 11 sections 1157(c)(1) and 1101(a)(42). See 8 U.S.C. §§ 1101(a)(42), 1157(c)(1). 12 Moreover, section 1157(c)(1) requires the Secretary to adhere to all adopted regulations, 13 and as discussed above, the Secretary has promulgated such regulations that provide 14 specific standards limiting its discretion. For these reasons, it is not certain that the 15 Secretary’s obligations with respect to processing refugee applications are discretionary 16 within the meaning of section 1252(a)(2)(B)(ii), as construed in Spencer. 17 // 18 // 19 20 21 22 18 Many district courts have adopted this reasoning in the analogous context of immigration status adjustments. See, e.g., Asmai v. Johnson, 182 F. Supp. 3d 1086, 1091-92 (E.D. Cal. 2016); see also Hong Wang v. Chertoff, 550 F. Supp. 2d 1253, 1256-57 (W.D. Wash. 2012) (collecting cases). When the statute grants discretion only as to the ultimate decision but not as to the timing of when that decision is made, jurisdiction is not barred by section 1252(a)(2)(B)(ii). See, e.g., Dong v. Chertoff, 513 F. Supp. 2d 1158, 1165 (N.D. Cal. 2007). ORDER - 37 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 38 of 65 1 In sum, neither 5 U.S.C. § 701(a) nor 8 U.S.C. § 1252(a)(2)(B)(ii) bar the court 2 from hearing this matter. Having disposed of Defendants’ justiciability arguments, the 3 court now turns to the substance of Plaintiffs’ motions for preliminary injunction. 4 B. 5 Motions for Preliminary Injunction Doe Plaintiffs seek to enjoin both the SAO and FTJ provisions of the Agency 6 Memo to the extent those provisions indefinitely suspend the processing of FTJ refugee 7 applications or prohibit the entry of FTJ refugees into the United States. (See generally 8 Doe PI Mot.; Doe Reply; see also Doe TAC.) The JFS Plaintiffs join in this motion. 9 (See JFS Joinder; JFS PI Mot. at 22-23.) In the JFS Case, Plaintiffs also seek to enjoin 10 the SAO provisions of the Agency Memo to the extent those provisions suspend the 11 admission of refugees or inhibit the processing of refugee applications from those SAO 12 countries for 90 days. (See generally JFS PI Mot.; JFS Reply; see also JFS Compl.) Doe 13 Plaintiffs join in this motion as well. (See Doe Joinder.) 14 The court also clarifies what Plaintiffs in both cases do not seek. Plaintiffs do not 15 seek to enjoin the agencies’ efforts to implement screening mechanisms for FTJ refugees 16 that are similar to or aligned with the processes employed for principal refugees. 17 Plaintiffs do not seek to enjoin the agencies from conducting their 90-day “detailed threat 18 analysis and review” of the SAO countries to determine what additional safeguards the 19 agencies believe are necessary with respect to the admission of refugees from those 20 countries. And finally, Plaintiffs do not seek a guarantee of immediate admission into the 21 United States for the refugees at issue. (See Doe Reply at 9.) Rather, as indicated above, 22 they seek an order preliminarily enjoining those provisions of the Agency Memo that (1) ORDER - 38 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 39 of 65 1 prohibit the admission of refugees from SAO countries and impede the processing of 2 their refugee applications for 90-days, and (2) indefinitely prohibit the admission of FTJ 3 refugees and indefinitely suspend the processing of their refugee applications. With 4 those clarifications, the court now considers their motions. 5 1. Standard 6 “A preliminary injunction is ‘an extraordinary remedy that may only be awarded 7 upon a clear showing that the plaintiff is entitled to such relief.’” Feldman v. Ariz. Sec’y 8 of State’s Office, 843 F.3d 366, 375 (9th Cir. 2016) (quoting Winter v. Nat. Res. Def. 9 Council, 555 U.S. 7, 22 (2008)). To obtain such relief, “[a] plaintiff . . . must establish 10 that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 11 absence of preliminary relief, that the balance of equities tips in his favor, and that an 12 injunction is in the public interest.” Winter, 555 U.S. at 20. A plaintiff must make a 13 clear showing as to each of these elements.19 Feldman, 843 F.3d at 375. 14 2. Notice and Comment Rulemaking under the APA 15 Plaintiffs assert that the court should set aside the Agency Memo as it relates to 16 both the indefinite FTJ suspension and the 90-day SAO suspension because it represents 17 a “legislative rule” for which notice and comment rulemaking under the APA is required. 18 (Doe PI Mot. at 14-15; JFS PI Mot. at 19-20.) “Under the APA, a federal administrative 19 20 21 22 19 In the Ninth Circuit, “‘if a plaintiff can only show that there are ‘serious questions going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Feldman, 843 F.3d at 375 (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1282, 1291 (9th Cir. 2013)). Here, because the court concludes that Plaintiffs meet the Winter standard for issuing a preliminary injunction, there is no need for the court to consider the alternate standard. ORDER - 39 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 40 of 65 1 agency is required to follow prescribed notice-and-comment procedures before 2 promulgating substantive rules.” Colwell v. Dep’t of Health & Human Servs., 558 F.3d 3 1112, 1124 (9th Cir. 2009); see 5 U.S.C. § 553. Courts require agencies to engage in 4 notice and comment rulemaking when implementing policy changes with substantive 5 consequences for refugees and other immigrants. See, e.g., Texas v. United States, 809 6 F.3d 134, 171-78 (5th Cir. 2015) (as revised), aff’d by an equally divided 7 court, --- U.S. ---, 136 S. Ct. 2271 (2016) (holding that plaintiffs were likely to succeed 8 on the merits of their APA claim that notice and comment rulemaking required for 9 immigration policy granting deferred action status to certain undocumented immigrants); 10 Zhang v. Slattery, 55 F.3d 732, 744-47 (2d Cir. 1995), superseded by statute on other 11 grounds, 8 U.S.C § 1101(a)(42) (finding notice and comment rulemaking is required for 12 the agency’s interim rule recognizing fear of coercive family practices as basis for 13 refugee status). 14 Defendants do not deny that the Agency Memo represents a rule; rather, they 15 argue the Agency Memo is exempt from APA rulemaking procedures because it 16 represents a procedural—not substantive—rule for which a notice and comment period is 17 not required. (Doe Resp. at 16; JFS Resp. at 18-19); see 5 U.S.C. § 553(b)(3)(A) (stating 18 that APA rulemaking “does not apply . . . to interpretive rules, general statements of 19 policy, or rules of agency organization, procedure, or practice”). Defendants argue that 20 the Agency Memo does not change the substantive criteria for determining whether a 21 refugee applicant can be admitted to the United States, it merely suspends the admission 22 of refugees from SAO countries for 90 days and the admission of FTJ refugees until such ORDER - 40 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 41 of 65 1 time as the agencies can align the screening procedures for FTJ refugees with the 2 screening procedures employed for principal refugees. (Doe Resp. at 17; JFS Resp. at 3 18-19.) 4 The court need not accept an agency’s characterization of its own rule. Hemp 5 Indust. Ass’n v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003); see also Reno-Sparks Indian 6 Colony v. U.S. E.P.A., 336 F.3d 899, 909 (9th Cir. 2003) (“The agency is not entitled to 7 deference [concerning its decision not to engage in rulemaking] because complying with 8 the notice and comment provisions when required by the APA is not a matter of agency 9 choice.”) (internal quotation marks omitted). Further, the exceptions to APA rulemaking 10 must be “narrowly construed and only reluctantly countenanced.” Alcaraz v. Block, 746 11 F.2d 593, 612 (9th Cir. 1984). At times, distinguishing between rules that require APA 12 rulemaking and those that do not is challenging. Stoddard Lumber Co. v. Marshall, 627 13 F.2d 984, 987 (9th Cir. 1980) (noting that distinguishing between such rules “has proved 14 to be quite difficult”). There are, however, guideposts as described in the authority relied 15 upon by Defendants. (See JFS Resp. at 19; Does Resp. at 17-19.) Whether a rule is 16 “substantive” or “procedural” requires a court to make “legal conclusions that depend 17 upon their settings for definition.” Neighborhood Television, Inc. v. FCC, 742 F.2d 629, 18 637 (D.C. Cir. 1984); Brown Exp., Inc. v. United States, 607 F.2d 695, 701 (5th Cir. 19 1979). To determine the nature of a rule, the court must look at the rule’s effect on those 20 interests ultimately at stake in the agency proceeding. Neighborhood Television, 742 21 F.2d at 637. If a rule does not substantially affect or jeopardize those ultimate interests, 22 // ORDER - 41 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 42 of 65 1 then it is procedural and not substantive. Waste Mgmt., Inc. v. U.S.E.P.A., 669 F. Supp. 2 536, 539 (D.D.C. 1987). In short, context matters. 3 In their response to Plaintiffs’ motion, Defendants rely on two thirty-plus-year-old 4 decisions out of the District of Columbia—neither of which is analogous to the 5 facts-at-hand. (Doe Resp. at 17-18.) In Waste Management, 669 F. Supp. at 538-40, the 6 court held that the agency issued a procedural rule when it decided to defer consideration 7 of applications for ocean incineration permits until the agency promulgated new rules on 8 the topic. In Neighborhood Television, 742 F.2d at 636-38, the court determined that an 9 agency’s decision to “freeze” processing of certain applications for television translator 10 licenses was also a procedural rule. The status sought by Plaintiffs here—refugee 11 status—is far-afield from either an ocean incineration permit or a television translator 12 license. Further, in both cases, the courts focused on the fact that the delay caused by a 13 suspension did not by itself undermine the interests at stake, and in both situations, the 14 delay itself was related to the agencies’ ongoing notice and comment rulemaking efforts. 15 See Waste Mgmt., 669 F. Supp. at 539-40; Neighborhood Television, 742 F.2d at 636-38. 16 Unlike the challengers’ interests in those cases, Plaintiffs’ interests—to reunite with 17 family members or to flee perilous situations and find refuge in the United States—are 18 undermined by any delay. Hawaii II, 871 F.3d at 644 (“Refugees have only a narrow 19 window of time to complete their travel, as certain security and medical checks expire 20 and must then be re-initiated. Even short delays may prolong a refugee’s admittance.”); 21 (see also JFS-S Supp. Decl. ¶ 8 (explaining the cascading effects of even a short delay in 22 processing).) ORDER - 42 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 43 of 65 1 Further, 8 C.F.R. part 207, the regulations implementing the Refugee Act of 1980, 2 and subsequent amendments outlining procedures for the FTJ program, were subject to 3 notice and comment before they were codified. See Aliens and Nationality; Refugee and 4 Asylum Procedures, 46 Fed. Reg. 45,116 (Sept. 10, 1981) (to be codified at 8 C.F.R. pt. 5 207); Procedures for Filing a Derivative Petition (Form I-730) for a Spouse and 6 Unmarried Children of a Refugee/Asylee, 63 Fed. Reg. 3792 (Jan. 27, 1988) (to be 7 codified at 8 C.F.R. § 207.7). Where the original rule was adopted after a notice and 8 comment period, courts have generally found the decision to alter those rules to be 9 substantive, and therefore subject to APA rulemaking procedures as well. See, e.g., 10 Sequoia Orange Co. v. Yeutter, 973 F.2d 752, 757 (9th Cir. 1992) (ruling that the 11 decision to alter voting procedures was subject to APA rulemaking requirement because 12 the original voting procedures were adopted after notice and comment); Arlington Oil 13 Mills, Inc. v. Knebel, 543 F2d 1092, 1100 (5th Cir. 1976). 14 In addition, “[w]hen a policy acts as a substantive rule and alters an existing 15 regulatory scheme,” the agency “must adopt that policy according to procedures set forth 16 in the APA.” Mt. Diablo Hosp. Dist. v. Bowen, 860 F.2d 951, 956 (9th Cir. 1988). The 17 Agency Memo indefinitely suspends the entire FTJ refugee program, and it suspends the 18 admission of all refugees (with limited exceptions) from the 11 SAO countries. As 19 discussed above, the regulatory scheme for processing principal and derivative refugees, 20 such as FTJ refugees, is set forth in detail in 8 C.F.R. part 207. The court has little 21 // 22 // ORDER - 43 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 44 of 65 1 difficulty in concluding that such changes “alter” that “existing regulatory scheme.” 20 2 See Mt. Diablo, 860 F.2d at 956. 3 Defendants also assert that the SAO provisions are exempt from rulemaking 4 because they fall within the APA’s foreign affairs exception. (JFS Resp. at 19-20); see 5 5 U.S.C. § 553(a)(1) (“This section applies . . . except to the extent that there is involved 6 . . . a . . . foreign affairs function of the United States.”). The Ninth Circuit cautions that 7 the “foreign affairs exception would become distended if applied to INS actions 8 generally, even though immigration matters typically implicate foreign affairs.” Yassini 9 v. Crosland, 618 F.2d 1356, 1360 (9th Cir. 1980). Indeed, “[f]or the exception to apply, 10 the public rulemaking provisions should provoke definitely undesirable international 11 consequences.” Id. Although the Ninth Circuit cautioned that a rule of law “that would 12 inhibit the flexibility of the political branches should be adopted with only the greatest of 13 caution,” nevertheless “[r]eview of decisions involving aliens . . . remains available.” Id. 14 Defendants rely on Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 2008), in which 15 the Second Circuit reviewed the National Security Entry-Exit Registration System, a 16 program devised after September 11, 2001, that required registration for certain 17 individuals from specific countries. (See JFS Resp. at 19-20.) The Second Circuit found 18 that rulemaking was not required due to the foreign affairs exception. Rajah, 544 F.3d at 19 437. The Second Circuit was concerned that in explaining why some of a particular 20 21 22 20 In addition, those refugees who fall within the SAO provisions of the Agency Memo and who would otherwise meet the definition of “refugee” are now barred from admission for at least 90 days unless they can demonstrate the additional, agency-created requirement that their admission would “fulfill critical foreign policy interests.” (Agency Memo at 2.) ORDER - 44 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 45 of 65 1 nation’s citizens were regarded as a threat, (1) sensitive foreign intelligence might be 2 revealed, (2) relations with other countries might be impaired, and (3) the process would 3 be slow and diminish the Government’s ability to protect against a potential terrorist 4 attack. Id. 5 The court agrees with Plaintiffs, however, that Rajah is inapposite for a number of 6 reasons. (See JFS Reply at 9.) First, Plaintiffs do not seek rulemaking on whether 7 particular countries should be on the SAO list, but rather on whether and how the USRAP 8 should be suspended while the review is conducted. (See id.) Second, it is not evident 9 that such rulemaking would “provoke definitively undesirable international 10 consequences,” see Yassini, 618 F.2d at 1360 n.4, and Defendants proffer no evidence 11 that it would (see generally Dkt.). The court is simply unwilling to apply the exception 12 without some evidence to support its application. Compare Yassini, 618 F.2d at 1360-61 13 (applying the exception only after examining the affidavits of the Attorney General and 14 Deputy Secretary of State establishing the directive’s relationship to the Iran hostage 15 crisis); with Jean v. Nelson, 711 F.2d 1455, 1477 (11th Cir. 1983) (holding that a rule 16 directing the detention of Haitians at the border was not within the exception given the 17 lack of evidence of any consequences), aff’d, 472 U.S. 846 (1985). 18 Finally, when the Rajah and Yassini courts applied the foreign affairs exception, 19 they were grappling with agency directives issued in response to dire national 20 emergencies—the September 11 attack and the Iranian hostage crisis. See Rajah, 544 21 F.3d at 433; Yassini, 618 F.2d at 1361. Although not determinative, the circumstances in 22 which the courts applied the exception provides context for their decisions. Here, ORDER - 45 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 46 of 65 1 Defendants offer no evidence that the agencies issued the SAO suspension in response to 2 a national security or foreign affairs crisis. Indeed, all the Agency Memo states to justify 3 the 90-day suspension of refugees from SAO countries (with limited exceptions) is that 4 the Secretaries of DOS and DHS and the DNI “continue” to have unspecified “concerns” 5 regarding their admission. (Agency Memo at 2.)21 Thus, the exigent factual 6 circumstances under which the agency directives were issued in Yassini and Rajah is 7 another distinguishing factor that diminishes the applicability of those cases here. 8 9 For the foregoing reasons, the court agrees with Plaintiffs that the foreign affairs exception to rulemaking is inapplicable to the SAO provisions and that the agencies 10 should have engaged in APA rulemaking before issuing both the SAO and FTJ 11 provisions at issue in the Agency Memo. Accordingly, the court concludes that Plaintiffs 12 have demonstrated that they are likely to succeed on the merits of their claim that the 13 agencies violated the APA’s rulemaking requirement.22 14 // 15 // 16 // 17 18 19 20 21 22 21 The court notes that the only evidence in the record is to the contrary—that operating USRAP in SAO countries does not pose a significant risk to the country. (Joint Decl. Former Nat’l Sec. Officers (17-1707 Dkt. # 46) ¶ 12 (“During the four decades from 1975 to the end of 2015, over three million refugees have been admitted to the United States. Despite this number, only three refugees have killed people in terrorist attacks on U.S. soil during this period. None of these refugees were from the [SAO] countries.”).) Instead, the evidence before the court is that the SAO provisions of the Agency Memo undermine the country’s national security and foreign policy interests, “rather than making us safer.” (Id. ¶ 14.) 22 Concluding that Plaintiffs are likely to succeed on the merits of this statutory claim is sufficient to fulfill this requirement for preliminary relief. Nevertheless, the court also considers a second statutory claim. ORDER - 46 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 47 of 65 1 3. INA Challenges 2 Plaintiffs also argue that the Agency Memo violates the INA. The Doe Plaintiffs 3 argue that the FTJ provisions of the Agency Memo violate 8 U.S.C. § 1157(c)(2)(A) of 4 the INA by indefinitely suspending the processing of FTJ derivative refugee applications 5 and indefinitely barring their entry into the country. (Doe PI Mot. at 9-12.) The JFS 6 Plaintiffs argue that the SAO provisions of the Agency Memo are ultra vires under the 7 APA because they suspend the processing of refugee applications from SAO countries 8 and bar the entry of refugees from those countries (with limited exceptions) for at least 90 9 days in violation of 8 U.S.C. § 1157(c)(1) of the INA. (JFS PI Mot. at 19, 21-22.) 10 The APA provides a right of action for plaintiffs who challenge administrative 11 actions that violate a federal statute. Any “person . . . adversely affected or aggrieved by 12 agency action within the meaning of a relevant statute, is entitled to judicial review 13 thereof.” 5 U.S.C. § 702; see also Cetacean Cmty., 386 F.3d at 1176-77 (“[T]he end 14 result is the same whether the underlying statute grants standing directly or whether the 15 APA provides the gloss that grants standing. In both cases, the plaintiff can bring suit to 16 challenge the administrative action in question. In the first case, the substantive statute 17 grants statutory standing directly to the plaintiff. In the second case, the substantive 18 statute is enforced through Section 10(a) of the APA.”); Hernandez-Avalos v. I.N.S., 50 19 F.3d 842, 846 (10th Cir. 1995) (“[A] plaintiff who lacks a private right of action under 20 the underlying statute can bring suit under the APA to enforce the statute.”). The court 21 has already determined that Plaintiffs in both cases fall within the zone of interest 22 protected by the Refugee Act of 1980 and the INA. See supra § III.A.2. Because 5 ORDER - 47 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 48 of 65 1 U.S.C. § 702 applies, Plaintiffs in both the Doe Case and the JFS Case can bring their 2 INA statutory challenges under the APA. Under 5 U.S.C. § 706(2)(C), a “reviewing 3 court shall . . . hold unlawful and set aside agency action . . . found to be . . . in excess of 4 statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. 5 § 706(2)(C); see also Texas, 809 F.3d at 178. The court will address whether Plaintiffs 6 have demonstrated that they are likely to succeed on each claim. 7 8 9 a. FTJ Provisions Doe Plaintiffs argue that the suspension of processing FTJ refugee applications and the indefinite bar on their entry into the United States violates the INA. (See Doe PI 10 Mot. at 9-12.) Specifically, Plaintiffs argue that the award of FTJ refugee status in 8 11 U.S.C. § 1157(c)(2)(A) is not up to the Secretary’s discretion. Instead, this section of the 12 INA contains indisputably mandatory language: 13 14 15 16 17 18 19 A spouse or child . . . of any refugee who qualifies for admission under paragraph (1) shall, if not otherwise entitled to admission under paragraph (1) and if not a person described in the second sentence of section 1101(a)(42) of this title, be entitled to the same admission status as such refugee if accompanying, or following to join, such refugee and if the spouse or child is admissible . . . as an immigrant under this chapter. 8 U.S.C. § 1157(c)(2)(A) (emphasis added). Doe Plaintiffs contrast the use of the word “shall” with permissive language Congress utilized in the same section concerning principal refugees, which states in pertinent part that the Secretary “may, in the [Secretary’s] discretion . . . admit any refugee.” 8 U.S.C. § 1157(c)(1).23 The Supreme 20 21 22 23 The statute refers to the “Attorney General,” but the statutory references to the Attorney General in this provision are now deemed to refer to the Secretary of DHS. 6 U.S.C. § 557; see Durable Mfg. Co. v. U.S. Dep’t of Labor, 548 F.3d 497, 499 n.1 (7th Cir. 2009) ORDER - 48 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 49 of 65 1 Court has observed that Congress’s use of “may” contrasts with its use of “a mandatory 2 ‘shall’ in the very same section” and has interpreted Congress’s use of “shall” under such 3 circumstances “to impose discretionless obligations.” Lopez v. Davis, 531 U.S. 230, 241 4 (2001). Plaintiffs assert that the remaining language Congress used in Section 5 1157(c)(2)(A)—that FTJ refugees are “entitled to the same admission status” as the 6 principal refugee—only reinforces Congress’s intent to abrogate the agency’s discretion 7 in this instance. (Doe PI Mot. at 11.) The court agrees. 8 9 Defendants argue that 8 U.S.C. § 1157(c)(2)(A) does not guarantee admission into the United States because FTJ refugees must still be found to be otherwise admissible 10 under the chapter. (Doe Resp. at 12-13.) Indeed, Defendants argue that 8 U.S.C. 11 § 1157(c)(2)(A) conditions FTJ refugee status on admissibility, which is not ultimately 12 adjudicated until an individual appears at a port to seek entry to the United States. (Id. at 13 13 (citing 8 U.S.C. § 1201(h) (“Nothing in this chapter shall be construed to entitle any 14 alien, to whom a visa or other documentation has been issued, to be admitted [to] the 15 United States, if, upon arrival at a port of entry in the United States, he [or she] is found 16 to be inadmissible under this chapter, or any other provision of law.”) and 8 C.F.R. 17 207.7(d) (explaining that approval of an I-730 Petition for a FTJ refugee can be 18 “revoked” prior to entry)).) However, in Spencer, the Ninth Circuit held that the word 19 “shall” in 8 U.S.C. § 1153(b)(5) indicated a nondiscretionary statutory duty to grant a 20 21 22 (“Under 6 U.S.C. § 557, references in federal law to any agency or officer whose functions have been transferred to DHS shall be deemed to refer to the Secretary of DHS or other official or component to which the functions were transferred.”). ORDER - 49 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 50 of 65 1 type of visa under the immigrant investor program. 345 F.3d at 691. Further, the 2 application of statutory eligibility requirements did not render the agency’s determination 3 a discretionary one. Id. Accordingly, the court rejects Defendants’ argument. 4 Defendants also respond that Plaintiffs’ argument lacks merit because the Agency 5 Memo does not “rescind” anything, but only suspends the admission of FTJ refugees 6 until such time as security or screening procedures are reinforced. (JFS Resp. at 12.) 7 However, Defendants cite no authority for the proposition that the Secretary can 8 indefinitely suspend a nondiscretionary statutory duty, and so the court rejects this 9 argument, too. 10 Further, Defendants mischaracterize Plaintiffs’ claim as “seeking to compel their 11 immediate admission” or “suggest[ing] . . . that [8 U.S.C. §] 1157(c)(2)(A) requires their 12 admission now.” (Doe Resp. at 13-14.) As noted above, Plaintiffs do not claim that they 13 or their family members are entitled to immediate admission into the United States; 14 rather, Plaintiffs claim that Defendants are not entitled to, and do not have the statutory 15 authority to, indefinitely suspend FTJ refugee processing at will. By using mandatory 16 language in 8 U.S.C. § 1157(c)(2)(A), Congress created an entitlement for spouses and 17 children of principal refugees to “the same refugee status” as the principal refugee— 18 assuming the spouse and children are otherwise admissible. Nothing in the statute 19 authorizes the Secretary to stop, terminate, or suspend the ability of otherwise qualified 20 applicants from seeking and obtaining that entitlement. 21 22 Based on the foregoing authorities and analysis, the court concludes that Plaintiffs have demonstrated that they are likely to succeed on the merits of their claim that the ORDER - 50 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 51 of 65 1 Agency Memo’s FTJ provisions of the Agency Memo at issue here violate 8 U.S.C. 2 § 1157(c)(2)(A) of the INA and, therefore, also violate 5 U.S.C. § 706(2)(C) of the APA. 3 b. SAO Provisions 4 JFS Plaintiffs argue that the 90-day suspension of processing for refugees 5 applications (with limited exceptions) from SAO countries and the bar to entry into the 6 United States violates the INA. (See JFS PI Mot. at 19, 21-22.) Despite suspending over 7 40 percent of all refugees currently admitted under USRAP,24 the Agency Memo itself 8 provides no statutory basis for the 90-day SAO suspension. (See Agency Memo at 2.) In 9 their briefing and argument to the court, Defendants point to two INA provisions as 10 underpinning the suspension—6 U.S.C. § 202(4) and 8 U.S.C. § 1157(c)(1).25 (See JFS 11 Resp. at 16.) The court addresses each of these statutory grounds and finds neither to 12 confer the necessary authority. See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 13 (1986) (“[A]n agency literally has no power to act . . . unless and until Congress confers 14 power upon it.”). 15 Section 202(4) of Title 6 states that the Secretary of DHS is responsible for 16 “[e]stablishing and administering rules . . . governing the granting of visas or other forms 17 of permission, including parole, to enter the United States to individuals who are not a 18 citizen or an alien lawfully admitted for permanent residence in the United States.” (JFS 19 Resp. at 16 (quoting 6 U.S.C. § 202(4)).) Without citation to legal authority, Defendants 20 21 22 24 (See Smith Decl. ¶ 15 (“Out of the 138,710 refugees resettled in the United States in Fiscal Years 2016 and 2017, 60,309, or 43.5%, were from one of the 11 SAO countries.”).) 25 Defendants rely on no other statutory grounds for the SAO provisions in the Agency Memo. (See JFS Resp. at 16-17.) ORDER - 51 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 52 of 65 1 assert that the authority granted in 6 U.S.C. § 202(4) over entry into the United States 2 “necessarily encompasses authority to restrict entry.” (JFS Resp. at 16.) They assert that 3 this is all that the SAO provisions do—restrict entry for all refugees from SAO countries. 4 Defendants also rely on 8 U.S.C. § 1157(c)(1), which states: 5 7 [The Secretary] may, in the [Secretary’s] discretion and pursuant to such regulations as the [Secretary] may prescribe, admit any refugee who is not firmly resettled in any foreign country, is determined to be of special humanitarian concern to the United States, and is admissible . . . as an immigrant under this chapter. 8 8 U.S.C. § 1157(c).26 Defendants argue that the permissive language in this section 9 invests the Secretary with the discretion to admit any refugee and thus implicitly also 6 10 confers the discretion to exclude any refugee without time limitation. 11 But taking Defendants’ position to its logical end, the court would be required to 12 conclude that these two statutory provisions provide the Secretary with the authority to 13 exclude all refugees, and indeed—in the case of 6 U.S.C. § 202(4)—all immigrants from 14 admission to the country. When the court asked in oral argument for Defendants to 15 provide some limiting principle that would avoid this result, they could not. This cannot 16 be what Congress intended when it drafted these two provisions. 17 Congress’s stated purpose in passing the Refugee Act of 1980 was as follows: 18 The objectives of this Act are to provide a permanent and systematic procedure for the admission to this country of refugees of special humanitarian concern to the United States and to provide comprehensive and uniform provisions for the effective resettlement and absorption of those refugees who are admitted. 19 20 21 22 26 See supra note 21. ORDER - 52 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 53 of 65 1 Refugee Act of 1980, Pub. L. No. 96-212 § 101(b), 94 Stat. 102. Defendants’ 2 interpretation of 6 U.S.C. § 202(4) and 8 U.S.C. § 1157(c) is untenable in light of this 3 stated purpose. Defendants’ interpretation would allow either provision to swallow 4 whole the remainder of the Refugee Act of 1980. See Abourezk v. Reagan, 785 F.2d 5 1043, 1057-58 (D.C. Cir. 1986), aff'd, 484 U.S. 1 (1987) (finding “persuasive” the 6 plaintiff’s argument that the government’s statutory interpretation violated provisions of 7 the INA “because it effectively swallow[ed] up” another provision, thereby “nullif[ying] 8 the contours of existing inadmissibility grounds and “evad[ing] the limitations of 9 Congress”). 10 Although it involved different INA provisions, the Fifth Circuit recently dealt with 11 a similar overreach of statutory interpretation by the Government. In Texas, several 12 states challenged the DHS Secretary’s creation of the “Deferred Action for Parents of 13 Americans and Lawful Permanent Residents” (“DAPA”) program. 809 F.3d at 146. In 14 striking down DAPA as “an unreasonable interpretation that is ‘manifestly contrary’ to 15 the INA,” the Fifth Circuit held that the Government’s “interpretation of [the INA] 16 statutory provisions that the Secretary advance[d, which] would allow him to grant lawful 17 presence and work authorization to any illegal alien in the United States,” was “an 18 untenable position in light of the INA’s intricate system of immigration classifications 19 and employment eligibility.” 809 F.3d at 184. Likewise, Defendants’ broad 20 interpretation of both 6 U.S.C. § 202(4) and 8 U.S.C. § 1157(c)(1), which they argue 21 allows them to exclude all refugees of certain national origins, and by extension would 22 allow them to exclude all refugees, is untenable because it allows the DHS Secretary to ORDER - 53 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 54 of 65 1 simply ignore the “permanent and systematic procedure” for refugee admission and 2 resettlement that Congress established in the Refugee Act of 1980. See Refugee Act of 3 1980, Pub. L. No. 96-212 § 101, 94 Stat. 102; see also Hawaii III, 2017 WL 6547095, at 4 *11-13 (concluding that EO-3 “conflicts with the statutory framework of the INA by 5 indefinitely nullifying Congress’s considered judgments on matters of immigration”). 6 Plaintiffs also argue that the SAO provisions conflict with the INA and Refugee 7 Act of 1980 in additional ways. First, Plaintiffs assert that the SAO provisions run 8 roughshod over the Refugee Act’s definition of “refugee.” (JFS PI Mot. at 21.) In 8 9 U.S.C. § 1101(a)(42), Congress set forth the specific statutory elements that individuals 10 must satisfy to be admitted as a refugee.27 Id. Congress also specified criteria as to who 11 would be excluded from the definition. Id. By either prohibiting refugees from SAO 12 countries from participating in USRAP or by grafting on the additional requirement that 13 refugees from SAO countries must also “fulfill critical foreign policy interests” to 14 qualify, the agencies impermissibly redefine the term “refugee.” They either add to the 15 16 17 18 19 20 21 22 27 In defining a refugee, Congress set forth specific criteria including that (1) the person must be outside his or her country of nationality or outside any country in which he or she last habitually resided, (2) the person must be unable or unwilling to return to, or unable or unwilling to avail himself or herself of the protection of, that country, (3) this inability or unwillingness must be due to persecution or a well-founded fear of persecution, and (4) the persecution must be on account of race, religion, nationality, membership in a particular social group, or political opinion. Id. In addition, Congress has specified that a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or been persecuted for their refusal to do these things or for other resistance to a coercive population control program, is deemed to have met some of the qualifications for refugee status listed above. Id. Finally, Congress specified criteria that would exclude a person from refugee status. Specifically, the term “does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. ORDER - 54 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 55 of 65 1 criteria that Congress delineates to exclude one from refugee status or add an element to 2 Congress’s carefully-crafted definition. Either way, the Agency Memo impermissibly 3 conflicts with this provision. 4 Second, the nation-based SAO suspension impermissibly alters the admissibility 5 standards set by Congress in 8 U.S.C. § 1182(a). An individual refugee may enter the 6 country only if she is not subject to one of the inadmissibility bars. See 8 U.S.C. 7 § 1157(c)(1) (“[The Secretary] may . . . admit any refugee who . . . is admissible . . . as 8 an immigrant under this chapter.”). Section 1182(a) contains a long list of detailed 9 inadmissibility bars, including on “criminal,” “security,” “terrorist,” and “foreign 10 policy” grounds. See 8 U.S.C. § 1182. The INA “emphatically did not commit the 11 decision to exclude an alien to standardless agency discretion; the statute lists 12 [numerous] distinctly delineated categories that conspicuously provide standards to 13 guide the Executive in its exercise of exclusion power.” Abourezk, 785 F.2d at 1051. 14 Defendants cannot alter the contours of admissibility as sculpted by Congress or evade 15 these congressional limitations by creating a new and separate inadmissibility ground 16 that does not exist in the INA.28 17 28 18 19 20 21 22 Defendants’ observation that the “Government routinely grants preferences on the basis of nationality” under the Refugee Act (JFS Resp. at 17 (italics in original)) supports rather than undermines Plaintiffs. Such preferences are granted either pursuant to a Presidential determination required by the Refugee Act, 8 U.S.C. § 1157(a)(3) (requiring the President to allocate refugee admissions after appropriate consultation with Congress), as is the case with the Priority 2 designations—including the Central American Minors program—and Priority 3 designations, see U.S. Dep’t of State, Proposed Refugee Admissions for FY 2018, at 7 (Oct. 4, 2017) (report to Congress), (noting that section 207(a)(3) of the INA grants authority to determine the USRAP priority system), or pursuant to a duly issued regulation that permits the Secretary to prioritize certain refugee admissions based on appropriate criteria, including “reuniting families, close association with the United States, compelling humanitarian concerns, and public ORDER - 55 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 56 of 65 1 Based on the foregoing authorities and analysis, the court concludes that Plaintiffs 2 have demonstrated that they are likely to succeed on the merits of their claim that the 3 Agency Memo’s SAO provisions at issue here violate the INA and, therefore, also 5 4 U.S.C. § 706(2)(C) of the APA.29 5 4. Irreparable Harm 6 To qualify for a preliminary injunction, Plaintiffs must show that they are “likely 7 to suffer irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20. 8 The individual Plaintiffs argue that the suspensions in the Agency Memo will prolong the 9 separation of their family members and that this is an irreparable harm. They are correct. 10 This Circuit has repeatedly found that “separation from family members” is an 11 irreparable harm. Leiva-Perez v. Holder, 640 F.3d 962, 969-70 (9th Cir. 2011) (quoting 12 Andreiu v. Ashcroft, 253 F.3d 477, 484 (9th Cir. 2001) (en banc). The related Executive 13 Order litigation has reaffirmed this holding. See Hawaii I, 859 F.3d at 782-83 14 (“prolonged separation from family members” is irreparable harm); Washington, 847 15 F.3d at 1169 (identifying “separated families” as an irreparable harm); see also Int’l 16 Refugee Assistance Project, 857 F.3d at 583-84. 17 18 Defendants respond that the Agency Memo “would at most delay the entry of Plaintiff’s family members.” (Doe Resp. at 21; JFS Resp. at 30-31.) According to 19 20 21 22 interest factors,” 8 C.F.R. § 207.5 (2017). Although section 207.5 may permit the agency to preference certain admissions based on these criteria, this authority—on which Defendants did not base their actions—does not encompass the categorical suspension at issue here. 29 Because the court concludes that Plaintiffs are likely to succeed on two of their statutory claims, it does not consider Plaintiffs’ third statutory claim or Plaintiffs’ constitutional claims. ORDER - 56 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 57 of 65 1 Defendants, “[s]uch delay alone does not amount to irreparable harm, as processing times 2 for refugees can vary widely and on average are quite lengthy.” (Id.) Defendants do not 3 distinguish delayed unification from prolonged separation, nor do they cite any authority 4 that delay is not irreparable harm. (See Doe Resp.; JFS Resp.) Further, the Ninth Circuit 5 has at least implicitly rejected the notion that delay is not irreparable harm. See Hawaii I, 6 859 F.3d at 768 (holding that the plaintiffs “will face substantial hardship if we were to 7 first require that they try to obtain a waiver before we will consider their case”). No 8 matter which synonym one uses, the court finds that the Agency Memo causes irreparable 9 harm to individual Plaintiffs whose separation from their family members is prolonged. 10 The organizational Plaintiffs also suffer irreparable harm from the Agency Memo. 11 JFS-S and JFS-SV have dedicated significant resources to helping refugees from the SAO 12 countries. (JFS PI Mot. at 12-13.) Due to the Agency Memo’s suspension of refugees, 13 the organizations claim that they will need to lay-off employees, reduce services, cancel 14 established programs, lose institutional knowledge, and ultimately lose goodwill with 15 volunteers and community partners. (See id.) “Evidence of threatened loss of . . . 16 goodwill certainly supports a finding of the possibility of irreparable harm.” Stuhlberg 17 Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 841 (9th Cir. 2001); see 18 also Rent-A-Ctr. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th 19 Cir. 1991). 20 Defendants recycle their “delay” argument to claim that the organizations have not 21 suffered irreparable harm. (See JFS Resp. at 30-31.) This argument is similarly 22 unavailing here. Moreover, the indefinite duration of the “delay” in admitting refugees ORDER - 57 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 58 of 65 1 leaves the organizations unable to operate or plan effectively, further deteriorating 2 goodwill and adding to their harms. Defendants also argue that the organizations are not 3 irreparably harmed because “these organizations already fulfill their missions by 4 representing such clients who are unaffected by the challenged provisions.” (Id. at 12.) 5 The evidence before the court, however, is that JFS-S and JFS-SV are not able to simply 6 shift resources to “unaffected” refugees. Rather, these organizations have built programs 7 specifically to serve Muslim and Arabic-speaking refugees. (JFS-S Supp. Decl. ¶¶ 6-7; 8 JFS-SV Supp. Decl. ¶ 4.) Throughout the time it will take JFS-S and JFS-SV to 9 adequately build programs to service other populations, the organizations will suffer 10 irreparable harm. See Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718, 11 739 (S.D. Ind. 2016), aff’d, 838 F.3d 902 (7th Cir. 2016) (“Although the funding denied 12 to [the agency] could be reimbursed, [the agency] has presented evidence that, in the 13 interim, its organizational objectives would be irreparably damaged by its inability to 14 provide adequate social services to its clients.”); see also Hawaii I, 859 F.3d at 782-83 15 (finding the “State’s inability to assist in refugee resettlement” was an irreparable harm). 16 Further, as explained above, any sudden shift in the organizations’ priorities will threaten 17 their relationships and goodwill with community partners. In short, the Agency Memo 18 threatens the organizational Plaintiffs’ mission, services, and goodwill, and therefore 19 causes them irreparable harm. 20 Based on the foregoing, the court concludes that Plaintiffs are likely to suffer 21 irreparable harm in the absence of preliminary relief. 22 // ORDER - 58 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 59 of 65 1 5. Public Interest and Balancing the Equities 2 The balancing of the equities and the public interest inquiries are distinct. See 3 Winter, 555 U.S. at 20. In weighing equities, a court “must balance the competing claims 4 of injury and must consider the effect on each party of the granting or withholding of the 5 requested relief.” Id. at 24 (internal citation omitted). Conversely, when determining the 6 public interest, a court “primarily addresses impact on non-parties rather than parties.” 7 League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 8 F.3d 755, 766 (9th Cir. 2014). That said, “[t]hese factors may merge where the 9 Government is a party” because the Government purports to be acting in the public 10 interest. See Colo. River Indian Tribes v. Dep’t of Interior, No. ED CV14-02504 JAK 11 (SPx), 2015 WL 12661945, at *34 (C.D. Cal. June 11, 2015); see also Hawaii, 241 F. 12 Supp. 3d at 1139-40 (combining the balance of equities and public interest analyses). 13 Here, the Defendant’s sole argument for the balancing of equities and public interest 14 factors is the Government’s weighty interest in national security. (See Doe Resp. at 24; 15 JFS Resp. at 28.) The court, therefore, considers these factors together. 16 The court agrees that the Government has a “compelling” interest in national 17 security. Haig v. Agee, 453 U.S. 280, 307 (1981); see also Hawaii I, 859 F.3d at 78 18 (“National security is undoubtedly a paramount public interest.”). Defendants, however, 19 do not point to any specific national security threat that the Agency Memo curtails. At 20 most, the Agency Memo expresses general “concerns” with admitting FTJ refugees and 21 refugees from SAO countries. (See Agency Memo at 2-3.) Further, Defendants have not 22 put forth evidence of how a preliminary injunction might cause specific injury or harm in ORDER - 59 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 60 of 65 1 this instance or how the recent preliminary injunction of EO-1’s or EO-2’s suspensions of 2 all or portions of USRAP caused any harm or injury. (See generally Dkt.) 3 On the other hand, former national security officials—many of whom held “the 4 most senior responsibility within the U.S. Government for overseeing the refugee 5 resettlement process”—expressed that they are “unaware of any national security threat 6 that would justify” the Agency Memo. (Joint Decl. Former Nat’l Sec. Officers ¶¶ 4, 7.) 7 In fact, the former officials detailed concretely how the Agency Memo will harm the 8 United States’ national security and foreign policy interests. (Id. at ¶¶ 14-15.) Enjoining 9 portions of the Agency Memo will simply restore refuge procedures and programs to the 10 position they were in prior to its issuance, which already includes “the most thorough 11 vetting of any travelers to the United States. (Id. ¶ 8); see Hawaii I, 859 F.3d at 783 12 (noting this same effect of enjoining portions of EO-2). 13 In any event, national security, although undoubtedly “a paramount public 14 interest,” see Hawaii I, 859 F.3d at 784, does not always override all other public 15 interests, see IRAP, 137 S. Ct. at 2088-89. Moreover, the agencies must exercise national 16 security authority lawfully. “[C]urtailing unlawful executive action” also serves the 17 public interest. Texas, 809 F.3d at 187; see also Hawaii I, 859 F.3d at 784. Further, 18 suspending the FTJ refugees program and the processing of refugee applications (with 19 limited exceptions) from SAO countries hinders Plaintiffs’ ability to reunite with their 20 families while increasing refugees’ exposure to perilous circumstances abroad, and its 21 also disrupts and hinders JFS-S’s and JFS-SV’s ability to resettle and serve refugees. See 22 supra § II.B. Thus, “[t]he public interest in uniting families and supporting humanitarian ORDER - 60 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 61 of 65 1 efforts in refugee resettlement support the conclusion that the public interest is served by 2 preliminarily enjoining [portions of the agency Memo] and maintaining the status quo.” 3 See Hawaii I, 859 F.3d at 784 (citing Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1094 4 (9th Cir. 2005) (“Public policy supports recognition and maintenance of a family unit. 5 The [INA] was intended to keep families together. It should be construed in favor of 6 family units and the acceptance of responsibility by family members.”)). Further, the 7 INA should be construed in accordance with its “humane purpose . . . to reunite 8 families.” Kaliski v. Dist. Dir. of Immigration & Naturalization Serv., 620 F.2d 214, 217 9 (9th Cir. 1980). In Hawaii I, the Ninth Circuit concluded that, because a preliminary 10 injunction of EO-2 would serve the foregoing interests, it was in the public interest. 859 11 F.3d at 784-85. Likewise, this court concludes that Plaintiffs have demonstrated that a 12 preliminary injunction of the FTJ and SAO suspensions here is in the public interest. 13 Nevertheless, the court’s analysis would not be complete without considering the 14 Supreme Court’s recent decision in IRAP, 137 S. Ct. 2080, and the court will tailor any 15 preliminary injunction it issues to the confines of that ruling.30 When evaluating whether 16 30 17 18 19 20 21 22 The court recognizes that the Supreme Court recently stayed two preliminary injunctions relating to EO-3, pending appeals in the Fourth Circuit and Ninth Circuit, respectively. See Trump v. Int’l Refugee Assistance Project, No. 17A560, 2017 WL 5987435, at *1 (U.S. Dec. 4, 2017); Trump v. Hawaii, No. 17A550, 2017 WL 5987406, at *1 (U.S. Dec. 4, 2017). The Court’s rulings, however, do not provide any analysis or explanation why it stayed the injunctions. On December 5, 2017, this court ordered the parties “to provide supplemental briefing concerning what impact, if any, the Supreme Court’s December 4, 2017, orders have concerning the two pending motions for preliminary injunction.” (Supp. Br. Order (Dkt. # 68) at 2; see also Doe Supp. Brief; JFS Supp. Brief; Def. Supp. Brief.) After considering the parties’ supplemental briefs and the Supreme Court’s December 4, 2017, rulings, this court will still rely on IRAP, 137 S. Ct. 2080 (2017), the only reasoned opinion from the Supreme Court on a related matter to date. Nothing in the December 4, 2017, rulings expressly undermines, let alone mentions, IRAP. Moreover, the December 4, 2017, rulings dealt exclusively with immigrants— ORDER - 61 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 62 of 65 1 to issue a stay of the EO-2 preliminary injunctions, the Supreme Court determined that 2 the balance of equities favored “foreign nationals who have a credible claim of a bona 3 fide relationship with a person or entity in the United States.” Id. at 2088. The Court 4 recognized that the Government’s interest in protecting national security was at its apex 5 when considering the admission of foreign nationals with no connection to the United 6 States. Id. However, the Supreme Court found that the balance of equities was different 7 when considering the admission of aliens who had a credible claim of a bona fide 8 relationship with a person or entity within the United States. Id. With respect to these 9 individuals, the Supreme Court upheld the lower courts’ injunctions against enforcement 10 of EO-2. Id. The Court also specifically extended this balancing of equities to refugees: 11 “[a]n American individual or entity that has a bona fide relationship with a particular 12 person seeking to enter the country as a refugee can legitimately claim concrete hardship 13 if that person is excluded.” Id. at 2089. 14 By statutory definition, as Defendants conceded at oral argument, all FTJ refugees 15 have a bona fide relationship with a person in the United States. See 18 U.S.C. § 1157(c). 16 Thus, a preliminary injunction will be applicable to all FTJ refugees. The same, 17 however, is not true for all refugees from SAO countries. These refugees are not 18 necessarily in a relationship with a United States person or organization. The IRAP Court 19 held that for “refugees who lack any such connection to the United States . . . the balance 20 21 22 not refugees or the INA provisions currently at issue. It is simply impossible to say how the Court considered the equities in the December 4, 2017, rulings, and whether the Court’s analysis applies here. ORDER - 62 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 63 of 65 1 tips in favor of the Government’s compelling need to provide for the Nation’s security.” 2 137 S. Ct. at 2089. Thus, any preliminary injunction concerning refugees from SAO 3 countries will apply only to individuals with a bona fide relationship to a person or entity 4 within the United States.31 See id. 5 For the reasons stated above and with the noted limitations based on the Supreme 6 Court’s decision in IRAP, the court finds that the balance of equities and the public 7 interest factors weigh in favor of enjoining the FTJ and SAO provisions in the Agency 8 Memo at issue here. 9 10 6. Scope of the Injunction Defendants argue that any preliminary injunction should apply to the individual 11 Plaintiffs in this action only. (Doe Resp. at 22-23; JFS Resp. at 28-29.) An injunction is 12 not necessarily overbroad by extending benefits or protection to persons other than the 13 prevailing parties—even in the absence of a certified class—if such breadth is necessary 14 to give the prevailing parties the relief to which they are entitled. Hawaii I, 859 F.3d at 15 788. “Narrowing the injunction to apply to only Plaintiffs would not cure the statutory 16 violation identified, which in all applications would violate provisions of the INA.” Id. 17 In addition, partial implementation of the challenged provisions in the Agency Memo 18 19 20 21 22 31 With respect to a “bona fide relationship” with an American organization, the Supreme Court held that for such a relationship to exist, it “must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the Executive Order at issue].” See IRAP, 137 S. Ct. at 2088. The Ninth Circuit has interpreted this language to include refugee applicants covered by a formal assurance from a refugee resettlement agency. See Hawaii II, 871 F.3d at 658. Thus, those refugees from SAO countries who have a formal assurance from JFS-S, JFS-SV, or some other refugee resettlement agency or humanitarian organization, would be covered by the preliminary injunction. ORDER - 63 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 64 of 65 1 would undermine uniform enforcement of the nation’s immigration laws. See Texas, 809 2 F.3d at 155 (issuing nationwide injunction concerning the DAPA program because 3 “partial implementation of the Executive Order ‘would undermine the constitutional 4 imperative of ‘a uniform Rule of Naturalization’ and Congress’s instruction that ‘the 5 immigration laws of the United States should be enforced vigorously and uniformly’”) 6 (footnotes omitted) (quoting U.S. CONST, art. I, § 8, cl. 4 and Immigration and Reform 7 Control Act of 1986, Pub. L. No. 99-603, § 115(1), 100 Stat. 3359, 3384); see also 8 Hawaii III, 2017 WL 6547095, at *25 (holding that the “the district court did not abuse 9 its discretion by granting a nationwide injunction” with respect to EO-3). Accordingly, the court issues a nationwide preliminary injunction32 as follows: 10 11 1. 12 members and persons acting in concert or participation with them from the date of this 13 Order, are enjoined and restrained from enforcing those provisions of the Agency Memo 14 that suspend the processing of FTJ refugee applications or suspend the admission of FTJ 15 refugees into the United States. This portion of the preliminary injunction does not apply 16 to Defendants’ efforts to implement “additional security measures” or align “the 17 screening mechanisms for [FTJ] refugees” with “processes employed for principal 18 refugees” as described in the Agency Memo. 19 // 20 21 22 Defendants and their officers, agents, servants, employees, attorneys, and all 32 The preliminary injunction does not apply to the President. See Hawaii I, 859 F.3d at 788 (holding that the court lacked jurisdiction to enjoin the President). However, the preliminary injunction runs against all other Defendants. See id. (“Injunctive relief . . . may run against all other executive officials, including the Secretary of Homeland Security and the Secretary of State.”). ORDER - 64 Case 2:17-cv-00178-JLR Document 92 Filed 12/23/17 Page 65 of 65 1 2. 2 members and persons acting in concert or participation with them from the date of this 3 Order, are enjoined and restrained from enforcing those provisions of the Agency Memo 4 that suspend or inhibit, including through the diversion of resources, the processing of 5 refugee applications or the admission into the United States of refugees from SAO 6 countries. However, this portion of the preliminary injunction only applies to FTJ 7 refugees or other refugees with a bona fide relationship to a person or entity within the 8 United States. See IRAP, 137 S. Ct. at 2088 89. Further, this portion of the preliminary 9 injunction does not apply to Defendants’ efforts to conduct a detailed threat assessment 10 Defendants and their officers, agents, servants, employees, attorneys, and all for each SAO country. 11 12 IV. CONCLUSION Based on the foregoing analysis, the court GRANTS Plaintiffs’ motion in the Doe 13 Case (Dkt. # 45), and GRANTS Plaintiffs’ motion in the JFS Case (17-1707 Dkt. # 42) 14 except for those refugees who lack a bona fide relationship with a person or entity in the 15 United States. 16 Dated this 23rd day of December, 2017. 17 A 18 JAMES L. ROBART United States District Judge 19 20 21 22 ORDER - 65