Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 1 of 15 The Honorable James L. Robart 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 JOHN DOE, et al., Plaintiffs, 11 12 13 v. DONALD TRUMP, et al., Defendants. 14 15 16 JEWISH FAMILY SERVICE OF SEATTLE, et al., Plaintiffs, 17 18 19 20 21 Civil Action No. 2:17-cv-00178JLR v. DONALD TRUMP, et al., Defendants. Civil Action No. 2:17-cv-01707JLR DEFENDANTS’ EMERGENCY MOTION FOR STAY OF PRELIMINARY INJUNCTION PENDING APPEAL (RELATING TO BOTH CASES) NOTE ON MOTION CALENDAR: December 29, 2017 22 23 24 25 26 DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 2 of 15 INTRODUCTION 1 2 Defendants hereby move the Court to stay its preliminary injunction barring enforcement 3 of two provisions of the October 23, 2017, Memorandum to the President (cited in the Court’s 4 opinion as the “Agency Memorandum” and cited herein and in Defendants’ prior submissions as 5 the “Joint Memorandum”) pending a decision from the Ninth Circuit on Defendants’ forthcoming 6 appeal. Defendants also request that the Court enter an order staying its injunction during the 7 interim period while the Court considers this motion.1 8 As explained more fully below, the balance of harms weighs strongly in favor of a stay, 9 and the Government is likely to prevail on the merits of its appeal. The Supreme Court recently 10 stayed in full injunctions that district courts had entered against enforcement of the entry 11 restrictions in Presidential Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 24, 2017), based 12 in part on a balancing of harms and interests that are similar to those at issue here. The same 13 result is warranted in this case. STANDARD OF REVIEW 14 15 In deciding a motion to stay pending appeal, courts consider four factors: “(1) whether the 16 stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether 17 the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will 18 substantially injure the other parties interested in the proceeding; and (4) where the public interest 19 lies.” Nken v. Holder, 556 U.S. 418, 434 (2009). A stay is appropriate if the movant demonstrates 20 that it has raised serious questions going to the merits on appeal and the balance of hardships tips 21 sharply in its favor. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 22 2011). 23 24 25 26 1 Defendants have reviewed the Court’s Local Civil Rules and have determined that this emergency stay motion is analogous to a motion for a temporary restraining order. Accordingly, Defendants have adhered to the noting date and page count rules associated with such motions. DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 1 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 3 of 15 ARGUMENT 1 2 I. THE BALANCE OF HARMS WEIGHS STRONGLY IN FAVOR OF A STAY 3 The serious and irreparable harms to the Government and the public from this Court’s 4 preliminary injunction outweigh any harm Plaintiffs might suffer if the injunction is stayed. The 5 Supreme Court reached this conclusion when it stayed in full the injunctions issued by district 6 7 8 9 10 11 12 13 14 15 16 courts in Trump v. Hawaii, No. 17A550, 2017 WL 5987406 (U.S. Dec. 4, 2017), and Trump v. Int’l Refugee Assistance Project (IRAP), No. 17A560, 2017 WL 5987435 (U.S. Dec. 4, 2017). The Supreme Court necessarily determined that the Government’s national-security and foreignpolicy interests outweighed the plaintiffs’ interests in those cases. See Nken, 556 U.S. at 434. The Government’s national-security interests here, which also relate to risks from the admission of aliens from abroad, are just as weighty. And Plaintiffs interests’ and alleged harms are significantly weaker than those of the plaintiffs in IRAP and Hawaii because the provisions of the Joint Memorandum that Plaintiffs challenge are temporary (and due to expire in the near future). Thus, the Supreme Court’s orders in IRAP and Hawaii counsel in favor of this Court staying its preliminary injunction against the Joint Memorandum pending appellate review. A. THE PRELIMINARY INJUNCTION IMPOSES SERIOUS, IRREPARABLE HARM ON THE GOVERNMENT AND THE PUBLIC 17 This Court’s preliminary injunction undermines the Executive Branch’s constitutional and 18 statutory authority to safeguard the Nation’s security by conducting appropriate screening of 19 aliens seeking admission to the United States, and it intrudes on the political branches’ 20 constitutional prerogatives. “[N]o governmental interest is more compelling than the security of 21 the Nation,” Haig v. Agee, 453 U.S. 280, 307 (1981), and “the Government’s interest in combating 22 terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project (HLP), 23 561 U.S. 1, 28 (2010). The Executive Branch’s protection of these interests warrants the utmost 24 deference, particularly where, as here, it acts based on “[p]redictive judgment[s]” regarding 25 specific national-security risks. Dep’t of the Navy v. Egan, 484 U.S. 518, 529 (1988); see HLP, 26 DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 2 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 4 of 15 1 561 U.S. at 33-35. Rules “concerning the admissibility of aliens” also “implement[] an inherent 2 executive power.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). 3 After conducting a review of the refugee program as required by Executive Order No. 4 13,780 (EO-2), and “[n]otwithstanding the additional procedures identified or implemented 5 during [that period],” the Secretaries of State and Homeland Security and the Director of National 6 Intelligence “continue to have concerns” about the admission of refugees from Security Advisory 7 Opinion (SAO) countries, which were “previously identified as posing a higher risk to the United 8 States.” Joint Mem. at 2. The officials thus concluded it was necessary to conduct a “tailored” 9 and “in-depth threat assessment” of each SAO country before continuing admissions and making 10 further eligibility determinations as to refugee applicants from the affected countries. Joint Mem. 11 Addendum at 3; see id. (explaining that the review “will include input and analysis from the 12 intelligence and law enforcement communities, as well as all relevant information related to 13 ongoing or completed investigations and national security risks and mitigation strategies”). The 14 review of the refugee program called for by EO-2 also highlighted that “[t]he majority of 15 following-to-join refugees do not [currently] receive the same, full baseline interagency checks 16 that principal refugees receive.” Joint Mem. Addendum at 4. The Cabinet Secretaries thus made 17 a joint determination that, in order “to ensure the security and welfare of the United States,” it is 18 necessary to “implement adequate screening mechanisms for following-to-join refugees that are 19 similar to the process employed for principal refugees” before continuing admissions and making 20 further eligibility determinations as to following-to-join refugees. 21 The Court’s Order enjoining enforcement of these two challenged provisions necessarily 22 imposes irreparable harm on the Government and the public interest. Even a single State “suffers 23 a form of irreparable injury” “[a]ny time [it] is enjoined by a court from effectuating statutes 24 enacted by representatives of its people.” Maryland v. King, 567 U.S. 1301, 1303 (2012) 25 (Roberts, C.J., in chambers) (citation omitted); see, e.g., O Centro Espirita Beneficiente Uniao de 26 Vegetal v. Ashcroft, 314 F.3d 463, 467 (10th Cir. 2002). A fortiori, this Court’s injunction imposes DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 3 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 5 of 15 1 irreparable injury on the Executive Branch and the public given that the Joint Memorandum rests 2 on the national-security judgment of three Cabinet Secretaries, officials charged with determining 3 what screening steps are needed to evaluate requests for admission. These Secretaries jointly 4 determined that the SAO and following-to-join refugee populations may presently pose an 5 elevated risk due to inadequate screening and vetting and that additional procedures were needed 6 before further favorable eligibility determinations could be made. The problem is all the greater 7 given the Court’s extension of the preliminary injunction not only to refugee applicants and 8 organizations before the Court, or even to applicants nationwide who have close familial or 9 institutional ties to the United States, but also to an additional pool of applicants whose only 10 domestic link is through the attenuated resettlement assurance process. Defendants address this 11 latter concern in their pending motion for reconsideration, see ECF No. 93.2 12 These national-security and institutional harms exist notwithstanding the Government’s 13 understanding that the preliminary injunction does not impact any new screening or vetting 14 processes adopted as a result of the Government’s 120-day review pursuant to section 6(a) of 15 Executive Order 13,780, and that the injunction operates prospectively only—i.e., prohibiting 16 enforcement of the Joint Memorandum’s specified provisions beginning on the date of the 17 preliminary injunction’s issuance (December 23, 2017). Defendants do not understand the 18 preliminary injunction to require affirmative action to undo any of the steps that were taken to 19 implement the Joint Memorandum prior to December 23, including decisions made before 20 December 23 about how to allocate resources consistent with the Joint Memorandum. For 21 22 23 24 25 26 2 In the litigation regarding the Proclamation, the Ninth Circuit recently determined that the balance of equities and the public interest tilt in favor of the plaintiffs. See Hawaii v. Trump, No. 17-17168, — F.3d —, —, 2017 WL 6554184, at *22-23 (9th Cir. Dec. 22, 2017). Defendants respectfully disagree with that decision and intend to petition for a writ of certiorari. Moreover, that court’s analysis was based on the purported inadequacy of the President’s national-security findings, see id., whereas here the Court did not hold the Joint Memorandum invalid on that basis. Also, as noted above, the underlying injunction in that case is stayed pending disposition of the Government’s forthcoming petition for a writ of certiorari, see Trump v. Hawaii, 2017 WL 5987406, at *1. DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 4 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 6 of 15 1 example, prior to the injunction’s issuance and consistent with the Joint Memorandum’s terms, 2 the State Department’s Bureau of Population, Refugees, and Migration (PRM) scheduled federal 3 fiscal year Quarter 2 “circuit rides” for U.S. Citizenship and Immigration Services (USCIS) 4 officers to interview refugee applicants in different locations, and also scheduled almost all of the 5 refugee applicant interviews for those locations. 6 injunction was issued, consistent with the Joint Memorandum’s terms) have already been notified 7 of their upcoming interviews. Defendants do not understand the preliminary injunction to require 8 affirmative actions to undo these types of decisions that were made during the approximately two- 9 month period while the Joint Memorandum was in effect. Cf. Hernandez v. Sessions, 872 F.3d 10 976, 999 (9th Cir. 2017) (noting that “[m]andatory injunctions” are “subject to a higher standard 11 than prohibitory injunctions”); Fed. R. Civ. P. 65(d)(1). Those interviewees (selected before the 12 Compelling Defendants to undo these prior decisions would likely redound to the 13 detriment of innocent third parties who have no connection to this lawsuit. For instance, if USCIS 14 were required to modify the universe of refugees to be interviewed during upcoming circuit rides 15 (despite those circuit rides and interviews being scheduled prior to the injunction’s issuance), 16 USCIS might then need to cancel some of the existing interviews, including for refugee applicants 17 who have already been notified of their anticipated interview. Such cancellations would not be 18 consistent with the public interest. Cf. Richland Park Homeowners Ass’n, Inc. v. Pierce, 671 F.2d 19 935, 943 (5th Cir. 1982) (“The injury to the public interest that would be caused by the uprooting 20 of . . . 44 innocent families . . . weigh[s] heavily against the plaintiffs in the judicial consideration 21 of their demand for relief . . . .”). Moreover, there is significant doubt about whether it would 22 even be possible for Defendants to undo some of their prior decisions. While Defendants may be 23 able to adjust the interview schedule slightly, it is not feasible on short notice either to shift these 24 already-scheduled circuit rides to different countries or substantially revise the existing interview 25 schedules to substitute different refugee applicants. That is because almost all of the necessary 26 preparatory work—including completion of pre-screening interviews, security checks, and DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 5 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 7 of 15 1 notification to refugee applicants—has already occurred. Furthermore, the USCIS officers 2 conducting these interviews have been working to complete necessary pre-travel requirements— 3 including obtaining visas, making travel arrangements, obtaining or verifying necessary 4 vaccinations, and scheduling participation in location-specific pre-departure trainings—so 5 redeploying to other locations is not feasible in the near term.3 6 In light of the above, Defendants do not understand the preliminary injunction to require 7 them to take affirmative steps to undo the decisions that were made consistent with the Joint 8 Memorandum prior to the preliminary injunction’s issuance. In the event that Plaintiffs or the 9 Court have a different understanding of the preliminary injunction, further proceedings would be 10 necessary to help inform the Court’s analysis of these potential burdens and harms. Even under 11 the present injunction, however, the Government suffers significant national-security and 12 institutional injuries warranting a stay. 13 B. 14 15 16 17 18 19 20 21 22 A BRIEF STAY PENDING EXPEDITED APPEAL WOULD NOT IMPOSE ANY SUBSTANTIAL HARM ON PLAINTIFFS As the Government argued in its opposition briefs and at the December 21, 2017, hearing, the individual Plaintiffs—perhaps excepting Joseph Doe—have not established that they have been injured or, indeed, affected at all by the challenged provisions of the Joint Memorandum. Plaintiffs have not adequately demonstrated that they are on the brink of travel such that, but for the SAO provision or the following-to-join implementation period, they would have arrived in the United States during the short time before those provisions expire. Rather, Plaintiffs’ own declarations and allegations show that other circumstances may be delaying their travel. Accordingly, these Plaintiffs both lack standing to challenge the Joint Memorandum and have 23 24 25 26 3 Because most of the interviewees were selected prior to the injunction and consistent with the Joint Memorandum, some refugee applicants from SAO countries were scheduled for interviews because they met the Joint Memorandum’s criteria for continued, case-by-case processing during the 90-day review period. If additional, urgent requests from SAO nationalities are identified, PRM and USCIS will work together to try to add them to the scheduled circuit rides. DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 6 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 8 of 15 1 failed to carry their burden of demonstrating irreparable harm sufficient to warrant a preliminary 2 injunction. 3 With respect to the following-to-join implementation period, only three individual 4 Plaintiffs purport to challenge that provision. However, the challenges brought by two of these 5 Plaintiffs (Joseph Doe and Afkab Hussein) fail at the outset because their family members are 6 apparently located in Kenya, where the following-to-join vetting protocols are already generally 7 aligned with the protocols for principal refugees. Therefore, following-to-join refugees from non- 8 SAO countries processed in those locations were not impacted by the suspension related to 9 alignment of vetting protocols. Compare Decl. of Afkab Mohamed Hussein in Support of Pls.’ 10 Mot. ¶¶ 3, 10-11, Jewish Family Service of Seattle, et al. v. Trump, et al. (JFS), No. 2:17-cv- 11 01707, ECF No. 48 (“Hussein Decl.”), with Decl. of Joseph Doe in Supp. of Mot. for Prelim. Inj. 12 ¶ 9, ECF No. 47; see also Decl. of Jennifer B. Higgins in Supp. of Defs.’ Opp’n to Pl. Joseph 13 Doe’s Mot. for Prelim. Inj. ¶ 11, ECF No. 51–1. John Doe 7 also challenges the following-to- 14 join provision; unlike the families of Joseph Doe and Afkab Hussein, John Doe 7’s son is located 15 in a country (Iraq) where following-to-join processing was suspended pending institution of new 16 vetting protocols. However, as discussed below, John Doe 7’s son has been waiting to travel 17 since November 2016, and there is no basis from which the Court could conclude that the 18 following-to-join implementation period is the cause of his delay. 19 With respect to the SAO provision, a recurring theme across Plaintiffs’ allegations and 20 declarations is that they have been waiting to travel for a long time—months, even years. It is 21 wholly speculative to presume that they would have arrived during the short period affected by 22 the challenged provisions of the Joint Memorandum: 23 • Jeffrey Doe alleges that his parents and siblings applied for refugee status in 2005, 24 received an approval letter in 2006, and were assured by a resettlement agency in 2015. 25 But he also alleges that their medical checks have expired. Third Am. Compl. ¶ 89, ECF 26 DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 7 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 9 of 15 1 No. 42. Taking those allegations as true, the Court has no basis to conclude that Jeffrey’ 2 Doe’s family is on the brink of travel. 3 • Afkab Hussein’s declaration states that Forms I-730 for his wife and son were approved 4 in June 2016 and that his wife and son have “completed several stages of the follow-to- 5 join screening process.” Hussein Decl. ¶¶ 16-17. The reference to “several” stages (rather 6 than “all” stages) itself suggests that these family members must still complete additional 7 steps before being approved to travel. 8 • John Doe 1 (who is also the subject of Allen Vaught’s concerns) was conditionally 9 approved for resettlement in or around December 2016 and was told in October 2017 to 10 “get ready to travel,” but he has been delayed due to problems with his passport. Decl. of 11 John Doe # 1 in Supp. of Pls.’ Mot. ¶¶ 15-16, JFS, ECF No. 52. 12 • John Doe 2 (who is also the subject of John Doe 3’s concerns) was conditionally approved 13 for resettlement in or around March 2016, and his sponsor was told to expect his arrival 14 by August 2016, yet in January 2017 he was still awaiting security checks. Decl. of John 15 Doe #2 in Supp. of Pls.’ Mot. ¶ 9, JFS, ECF No. 53. Given that well over a year has 16 elapsed since John Doe 2 was expected to travel, it would be speculative to infer that the 17 SAO provision is the cause of his delay. 18 • Jane Doe 4 was referred for resettlement in June 2017 and had a pre-screening interview 19 with the International Organization for Migration in September 2017. It is unclear whether 20 she has completed her medical checks. Decl. of Jane Doe #4 in Supp. of Pls.’ Mot. ¶ 5, 21 JFS, ECF No. 55. 22 • Jane Doe 5 (who is also the subject of Jane Doe 6’s concerns) has been awaiting security 23 checks since 2016. Decl. of Jane Doe #5 in Supp. of Pls.’ Mot. ¶ 7, JFS, ECF No. 56. 24 Irrespective of the Joint Memorandum, Jane Doe 5 must complete those security checks 25 before she can qualify for refugee admission. 26 DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 8 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 10 of 15 1 • John Doe 7’s son was assured by a resettlement agency in November 2016. Decl. of John 2 Doe #7 ¶ 4, JFS, ECF No. 58. Given that his application apparently has not progressed in 3 the thirteen months since he received his assurance, Plaintiffs offer no basis from which 4 the Court could presume that, but for the SAO provision, John Doe 7’s son would be 5 scheduled to travel before that provision expires.4 6 That leaves Joseph Doe. As Government counsel acknowledged at the December 21 7 hearing, Joseph Doe’s family members do appear to be on the brink of travel. However, as set 8 forth in the Declaration of Jennifer L. Smith, attached hereto as Exhibit A, Joseph Doe’s family 9 falls within an exception under “[p]roposed interim guidance . . . which was in the process of 10 being reviewed for clearance before the Preliminary Injunction was issued.” Smith Decl. ¶ 2. 11 Pursuant to that proposed guidance, on December 21, 2017, PRM’s overseas staff requested that 12 the Resettlement Support Center in Kenya provide the family with travel documents and begin 13 planning their travel. Id. ¶ 3. At this point, the family is expected to travel in mid-to-late January, 14 and the State Department anticipates that it will know the date of the travel booking by January 15 2, 2018. Id. ¶¶ 3-4. Accordingly, even if the Court stays its injunction, Joseph Doe’s family will 16 be processed for travel, subject to admissions and admissibility requirements not affected by the 17 Joint Memorandum. 18 None of the individual plaintiffs therefore would suffer any concrete harm based on a stay 19 of the preliminary injunction. Nor will any of the organizations, who may continue “serv[ing] 20 21 22 23 24 25 26 4 The Court wrote that “[w]hether Doe 7’s son’s application has other hurdles to cross . . . does not diminish the fact that the SAO and FTJ provisions of the Agency Memo add two more.” Doe v. Trump, Nos. C17-0178JLR & C17-1707JLR, 2017 WL 6551491, at *9 (W.D. Wash. Dec. 23, 2017). The Court likewise wrote that, regardless whether Plaintiffs are on the brink of travel, “their separation from their family members will be prolonged as a result of the SAO provisions,” since resources have been diverted to non-SAO countries during the 90-day review period. Id. at *10. However, Plaintiffs bear the burden at all stages in litigation to show that they have properly invoked the Court’s subject-matter jurisdiction. As the Government has argued, the refugee admissions process is complicated and time-consuming—and Plaintiffs have not adequately shown that the short delay in processing and admissions attributable to the SAO provision will have any material impact on them. DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 9 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 11 of 15 1 Muslim and Arabic-speaking refugees,” Doe, 2017 WL 6551491, at *23, regardless whether the 2 Joint Memorandum is implemented. Thus, the balance of equities strongly favors a stay. 3 II. 4 THE GOVERNMENT IS LIKELY TO PREVAIL ON THE MERITS The Government respectfully submits that, notwithstanding this Court’s 5 preliminary-injunction decision, the Government also is likely to succeed on the merits of its 6 appeal.5 There are serious flaws in the Court’s reasoning with respect to Plaintiffs’ statutory 7 claims. The Court concluded, for instance, that the following-to-join implementation period 8 likely violates 8 U.S.C. § 1157(c)(2)(A) because that statute provides that following-to-join 9 refugees “shall” be entitled the same admission status as the principal refugee. Doe, 2017 WL 10 6551491, at *19. Yet as the Government previously argued, the brief implementation period does 11 not alter in any respect the substantive rights of following-to-join refugees, so to whatever extent 12 § 1157(c)(2)(A) confers a benefit, the Government has not rescinded it. Further, the Government 13 is entitled to make eligibility determinations for each refugee; there is no mandatory timeframe 14 for making such determinations; and, as the Joint Memorandum explains, these new procedures 15 are needed in order to make such determinations. 16 The Court also held that the SAO provision likely conflicts with the Immigration and 17 Nationality Act (INA) by adding criteria to the Act’s definition of “refugee” and to the 18 admissibility requirements for refugees. Id. at *22. But neither Plaintiffs nor the Court have 19 identified any INA provision that would bar the agencies charged with administering the statute 20 from exercising their discretion to review or enhance screening and vetting measures to promote 21 national security and welfare, and that is all the Joint Memorandum does. Congress could not 22 have been clearer in 8 U.S.C. § 1157(c)(1): “the Attorney General may, in the Attorney General’s 23 24 25 26 5 The Government preserves and incorporates by reference its arguments concerning the nonjusticiability of Plaintiffs’ claims (including the application of the doctrine of consular nonreviewability). DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 10 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 12 of 15 1 discretion and pursuant to such regulations as the Attorney General may prescribe, admit any 2 refugee” (emphasis added). 3 Likewise problematic, especially from a functional standpoint, is the Court’s preliminary 4 determination that the Joint Memorandum was not properly promulgated pursuant to the 5 Administrative Procedure Act (APA). The agencies’ Joint Memorandum “did not alter the 6 substantive criteria by which it would approve or deny” refugee applications; “it simply changed 7 the procedures it would follow in applying those substantive standards.” James V. Hurson 8 Assocs., Inc. v. Glickman, 229 F.3d 277, 281 (D.C. Cir. 2000). For that reason, the Joint 9 Memorandum is consistent with the underlying refugee statutes (and 6 U.S.C. § 202(4)) and is 10 not a legislative rule requiring notice-and-comment rulemaking under the APA. See id.; see also 11 Kessler v. FCC, 326 F.2d 673, 681 (D.C. Cir. 1963). The Cabinet Secretaries merely determined 12 that favorable eligibility determinations could not be made in most cases—subject to case-by-case 13 exceptions for those from SAO countries—until the screening procedures are further reviewed, 14 and, as necessary, upgraded. 15 At the December 21 hearing, the Court expressed concern that accepting this argument 16 would allow agency heads to suspend the refugee program indefinitely or even permanently. See 17 also Doe, 2017 WL 6551491, at *21. But that hypothetical is simply not before the Court. The 18 Joint Memorandum’s provisions are expressly temporary and were expected to last for less time 19 than it would have taken to conduct a full round of notice-and-comment rulemaking. The Joint 20 Memorandum has not impaired any substantive rights, and refugee applicants remain eligible to 21 be processed for refugee status and admitted as refugees if they are found eligible and admissible 22 at the conclusion of the Joint Memorandum’s brief review and implementation periods. 23 Indeed, the Court’s reasoning enjoining enforcement of the Joint Memorandum on that 24 basis leads to an even more problematic result: any change in procedure that delays a prospective 25 refugee’s arrival in the United States, or makes it less likely for someone to be granted refugee 26 status, would suddenly become a substantive rule that would be invalid without notice-andDEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 11 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 13 of 15 1 comment. That is not only contrary to decades of practice and Ninth Circuit case law, see In re 2 Hill, 811 F.2d 484, 487 (9th Cir. 1987) (“The application of virtually any procedural rule can 3 result in the denial of a ‘substantive’ right, yet this does not transform the procedural rule into a 4 substantive rule.”), it would also threaten agencies’ abilities to take important actions (such as 5 improving their screening procedures) on a timely basis. For that matter, under this Court’s 6 reasoning, the agencies could not have created an SAO procedure after the 9/11 attacks to ensure 7 that proper screening was employed before making eligibility determinations (at least without 8 first conducting a time-consuming and unwieldy notice-and-comment rulemaking process). As 9 discussed at the hearing, even Plaintiffs appear to agree that agencies must have the discretion to 10 quickly and continually revise their screening procedures. See also Joint Decl. of Former Nat’l 11 Sec. Officials ¶ 4, JFS, ECF No. 46. Thus, a stay is also warranted because the Government has 12 demonstrated a likelihood of success on the merits of its appeal. CONCLUSION 13 14 For these reasons, Defendants respectfully request that, pending final disposition of their 15 appeal, this Court stay its preliminary injunction. In addition, Defendants request that the Court 16 stay its injunction pending its ruling on this emergency motion for a stay pending appeal. 17 18 19 20 21 22 23 24 25 26 DATED: December 29, 2017 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General JENNIFER D. RICKETTS Director, Federal Programs Branch JOHN R. TYLER Assistant Director, Federal Programs Branch /s/ Joseph C. Dugan MICHELLE R. BENNETT DANIEL SCHWEI KEVIN SNELL JOSEPH C. DUGAN DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 12 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 14 of 15 1 2 3 4 5 6 Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Tel: (202) 514-3259 Fax: (202) 616-8470 Email: joseph.dugan@usdoj.gov Attorneys for Defendants 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 13 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 95 Filed 12/29/17 Page 15 of 15 CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 I certify that on December 29, 2017, a copy of the foregoing document was electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record. DATED this 29th day of December, 2017. /s/ Joseph C. Dugan JOSEPH C. DUGAN 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFS.’ EMERGENCY MOT. FOR STAY OF PRELIM. INJ. PENDING APPEAL - 14 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case Document 95-1 Filed 12/29/17 Page 1 of 4 Exhibit A Case Document 95-1 Filed 12/29/17 Page 2 of 4 The Honorable James L. Robart UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE JOHN DOE, eta1., Civil Action No. Plaintiffs, v. DONALD TRUMP, et al., Defendants. JEWISH FAMILY SERVICE OF Civil Action No. SEATTLE, et al., Plaintiffs, DECLARATION OF JENNIFER L. SMITH IN SUPPORT OF V- EMERGENCY MOTION FOR STAY OF DONALD TRUMP, et 31-, PRELIMINARY INJUNCTION PENDING APPEAL Defendants. (RELATING TO BOTH CASES) NOTE ON MOTION CALENDAR: December 29, 2017 I, Jennifer L. Smith, for my declaration pursuant to 28 U.S.C. 1746, hereby state and depose as follows: 1. I am the Overseas Section Chief of the Admissions Of?ce of the Bureau of Population, Refugees, and Migration of the United States Department of State. I have held this position since 2016. In my current position, I oversee the management of DECLARATION OF JENNIFER LSMITH- 1 DEPARTMENT 0? 20 Massachusetts Ave, NW Doe, el al. v. Trump. eta1., No. (JLR) Washington, DC 20530 Jewish Family Service of Seattle. e! v. Trump. et al., No. 2: l7-cv?01707 (JLR) (202) ?+3259 Case Document 95-1 Filed 12/29/17 Page 3 of 4 agreements with organizations for performance of the overseas processing activities for refugees being resettled in the United States, and manage the overseas refugee admissions ?pipeline? of cases under consideration for US. resettlement. I submit this declaration in support of Defendants? Emergency Motion for Stay of Preliminary Injunction Pending Appeal. The statements made herein are based on my personal knowledge and information made available to me in the course of carrying out my duties and responsibilities as Overseas Section Chief. 2. Proposed interim guidance of the US. Citizenship and Immigration Services (U SCIS) for 1-730 (?following to join?) cases processed by USCIS of?cers, which was in the process of being reviewed for clearance before the Preliminary Injunction was issued, provided that all 1-730 refugee applicants who received valid travel letters on or before October 24, 2017, would be allowed to travel as plarmed, and travel documents for such cases could be re-issued after verifying the validity of the assurance, medical and security checks. 3. A Resettlement Support Center (RSC) in Kenya, administered under a cooperative agreement with PRM, administers refugee case processing for refugees in sub-Saharan Africa, including the cases of Joseph Doe?s wife and children. Based on the proposed USCIS guidance, on December 21, 2017 Overseas staff requested the RSC in Kenya to provide travel documents and begin travel planning for Joseph Doe?s wife and children.1 On December 26, 2017, staff instructed the RSC to re-issue the travel documents and send the case forward to booking as quickly as possible. On December 27, 2017, the RSC responded that they would start the exit permit process with the Government of Kenya when government of?ces reopen after the holiday and 1 Though Joseph Doc has proceeded pseudonymously in this Court, Defendants have matched his pro?le (based on nationality, family members, location, and timing of application?l to an applicant in their system. DECLARATION OF JENNIFER LSMITI I- 2 U-S- DEPARTMENT OF JUSTICE 20 Massachusetts Ave, Doe, er al. v. Trump. er al., No. 2:17-cv-00178 (JLR) Washington. DC 20530 Jewish I?hmily Service ofSearIle. er al. v. Trump, 6! al., No. 2:17-cv-Ol707 (JLR) (202) Case Document 95-1 Filed 12/29/17 Page 4 of 4 were preparing the case for travel. The exit permit process in Kenya usually takes three to four weeks, so that travel is expected to take place in mid-to-late January. 4. The International Organization of Migration (IOM) is an inter-govemmental organization that, under a Memorandum of Understanding with PRM, administers a PRM-funded program to arrange and pay for approved refugees? commercial transport to the United States. Today, December 29, 2017, IOM has informed me that they have requested their Africa regional of?ce to make the travel booking for Joseph Doe?s wife and children. We expect to know the date of the travel booking by January 2, 2018. I declare under penalty of perjury that the foregoing is true and correct. Executed on in?eldhz 2 li ,2017. QM Mm Jennifer L. Smith . . .. . . . . U.S. DEPARTMENT OF JUSTICE DECLARA I 01' JENNIFER LSMITH 3 20 Massachusetts Ave. NW Doe. et al. v. Trump. etal., No. 2:17-cv-00178 (ILR) Washington, DC 20530 Jewish Family Service of Seattle. er al. v. Trump. et al., No. 2: l7-cv-01707 (ILR) Tel: (202) 514'3259 Case 2:17-cv-00178-JLR Document 95-2 Filed 12/29/17 Page 1 of 2 The Honorable James L. Robart 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 JOHN DOE, et al., Plaintiffs, 11 12 13 v. DONALD TRUMP, et al., Defendants. 14 15 16 JEWISH FAMILY SERVICE OF SEATTLE, et al., 19 20 Civil Action No. 2:17-cv-01707JLR Plaintiffs, 17 18 Civil Action No. 2:17-cv-00178JLR v. DONALD TRUMP, et al., Defendants. [PROPOSED] ORDER GRANTING DEFENDANTS’ EMERGENCY MOTION FOR STAY OF PRELIMINARY INJUNCTION PENDING APPEAL 21 22 23 24 25 26 [PROPOSED] ORDER GRANTING DEFS.’ EMERGENCY MOT. FOR STAY Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259 Case 2:17-cv-00178-JLR Document 95-2 Filed 12/29/17 Page 2 of 2 1 2 Upon review of Defendants’ Emergency Motion for Stay of Preliminary Injunction Pending Appeal, and for good cause shown, it is ORDERED: 3 1. Defendants’ motion is GRANTED; and 4 2. The preliminary injunction entered on December 23, 2017, enjoining enforcement of 5 certain provisions of the October 23, 2017, Memorandum to the President (“Agency 6 7 8 Memorandum” or “Joint Memorandum”), is hereby STAYED in all respects. Dated this ___ day of ____________________. 9 10 11 12 13 14 15 Presented by: CHAD A. READLER Acting Assistant Attorney General JENNIFER D. RICKETTS Director, Federal Programs Branch JOHN R. TYLER Assistant Director, Federal Programs Branch 23 /s/ Joseph C. Dugan MICHELLE R. BENNETT DANIEL SCHWEI KEVIN SNELL JOSEPH C. DUGAN Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Tel: (202) 514-3259 Fax: (202) 616-8470 Email: joseph.dugan@usdoj.gov 24 Attorneys for Defendants 16 17 18 19 20 21 22 ___________________________________ Hon. James L. Robart United States District Judge 25 26 [PROPOSED] ORDER GRANTING DEFS.’ EMERGENCY MOT. FOR STAY - 1 Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR) Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 514-3259