Case 2:17-cv-00178-JLR Document 101 Filed 01/04/18 Page 1 of 15

The Honorable James L. Robart

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JOHN DOE, et al.,
Plaintiffs,

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CASE NO. C17-00178JLR
PLAINTIFF DOE’S OPPOSITION TO
DEFENDANTS’ EMERGENCY MOTION
FOR STAY OF PRELIMINARY
INJUNCTION PENDING APPEAL

v.
DONALD TRUMP, et al.,
Defendants.

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(RELATING TO CASE NO. C17-00178JLR)

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JEWISH FAMILY SERVICES, et al.,
Plaintiffs,

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CASE NO. C17-01707JLR

v.
DONALD TRUMP, et al.,

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Defendants.

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PLAINTIFF DOE’S OPPOSITION
(No. C17-00178JLR)

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, W ashington 98164
TELEPHONE: (206) 624-2184

K E L L E R R O H R B AC K

L.L.P.

1201 Third A venue, Suite 3200
Seattle, W A 98101-3052

TELEPHONE: (206) 623-1900
FACSIMILE: (206) 623-3384

 Case 2:17-cv-00178-JLR Document 101 Filed 01/04/18 Page 2 of 15

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I.

INTRODUCTION

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Nearly one week after the Court issued its ruling on Plaintiff Joseph Doe’s motion for a

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preliminary injunction, and two days after filing a motion for reconsideration, Defendants filed

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an “emergency” motion for a stay pending final resolution of their appeal. Defs.’ Emergency
Mot. for Stay of Prelim. Inj. Pending Appeal (“MFS”), Dkt. # 95.1 Defendants rehash their
previous arguments and improperly seek to modify the injunction to leave in place steps they

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took over the past two months to implement the now-enjoined provisions of the Agency Memo.

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Defendants have not met the heavy burden required for the extraordinary remedy of an

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emergency stay, much less proffered evidence or reason why the injunction should be modified.
Nor should the Court condone their attempt to pick off Joseph Doe as a plaintiff by creating an
exception for his application, without amending or withdrawing the Agency Memo to provide

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relief to others similarly situated to him. The Court should deny Defendants’ request.
II.

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LEGAL STANDARD

A stay is “‘an exercise of judicial discretion,’” and “[t]he party requesting a stay bears the

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burden of showing that the circumstances justify an exercise of that discretion.” State v. Trump,

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847 F.3d 1151, 1164 (9th Cir. 2017) (quoting Nken v. Holder, 556 U.S. 418, 433-34 (2009)). A

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court’s discretion is “guided by four questions: ‘(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably

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injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.’” Id. (quoting Lair v. Bullock,
697 F.3d 1200, 1203 (9th Cir. 2012). “The first two factors . . . are the most critical,” and the last

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Defendants’ Motion also applies to the related case Jewish Family Services v. Trump. Plaintiffs
join in the JFS Plaintiffs’ response.

PLAINTIFF DOE’S
OPPOSITION
(No. C17-00178JLR) - 1

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, W ashington 98164
TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200
Seattle, W A 98101-3052
TE L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0
FA CS IM I L E : ( `2 0 6 ) 6 2 3 -3 3 8 4

 Case 2:17-cv-00178-JLR Document 101 Filed 01/04/18 Page 3 of 15

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two steps are reached “[o]nce an applicant satisfies the first two factors.” Id. (alteration in

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original) (quoting Nken, 556 U.S. at 434-35).

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III.

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Defendants Have Not Shown That They Will Be Irreparably Harmed in the Absence
of a Stay.

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First, Defendants contend that they, and the public, would be harmed if this Court’s

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A.

ARGUMENT

injunction requires them to “undo” any of the steps they have already taken to implement the
enjoined provisions of the Agency Memo, including scheduling interviews, making travel
arrangements for USCIS officers going on “circuit rides,” and other “preparatory work.” MFS 56. In other words, Defendants argue that because they have been preparing to implement the

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Agency Memo, they should not have to “undo” that preparation and can carry out what they had

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originally planned. This proposal would effectively nullify the injunction and has no basis in the

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law. The argument would allow any party to evade an injunction any time it had undertaken

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preparatory work toward implementing an enjoined policy.2

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The logical fallacy is compounded by Defendants’ failure to describe with any
particularity what “preparatory” steps they have taken and what impact those steps would have
on Plaintiff’s rights: plainly, if the steps would interfere with Joseph Doe’s or other I-730

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petitioners’ (collectively, “Doe Plaintiffs”) rights under the INA to be processed for reunification

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with their families, continued implementation of those steps is prohibited by the injunction.

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Defendants’ argument that they are irreparably harmed because “almost all of the necessary
preparatory work . . . has already occurred,” MFS 5-6, is ironic in light of their attack on the
standing of resettlement organizations like Plaintiffs Episcopal Diocese of Olympia, JFS-S, and
JFS-SV, which have invested significant resources preparing to resettle specific, newly banned
refugees. See, e.g., Suppl. Decl. of Rabbi Will Berkovitz, Dkt. # 81; Suppl. Decl. of Mindy
Berkowitz, Dkt. # 82; Third Am. Compl. ¶¶ 96-107, Dkt. # 42. Those agencies, unlike
Defendants, seek to engage in work that has not been enjoined by a federal court.
PLAINTIFF DOE’S
OPPOSITION
(No. C17-00178JLR) - 2

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, W ashington 98164
TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200
Seattle, W A 98101-3052
TE L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0
FA CS IM I L E : ( `2 0 6 ) 6 2 3 -3 3 8 4

 Case 2:17-cv-00178-JLR Document 101 Filed 01/04/18 Page 4 of 15

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Relatedly, Defendants’ professed concern about “innocent families” rings hollow—and appears

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calculated to pit one group of refugees against another. See id. at 5. Defendants did not extend

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this same concern to the Doe Plaintiffs when they unilaterally halted the reunification process
even if interviews had already been scheduled or family members were only awaiting travel
documents. Doe Plaintiffs also adopt the arguments made in Section I of JFS Plaintiffs’
Response, as to the actions Defendants should take to effectuate the Court’s injunction.
Second, in addition to failing to offer any evidence—or to even assert that such evidence
exists—that follow-to-join (“FTJ”) refugees pose or have ever posed a security threat,
Defendants also fail to address the evidence to the contrary. See Pl.’s Reply in Supp. of Mot. for
Prelim. Inj. 10-11, Dkt. # 54. Nor do they address the fact that almost 80% of dependent refugees
are women and children under age sixteen. Decl. of Lisa Nowlin ¶ 5, Dkt. # 57. Indeed,
Defendants’ own actions underscore their ability to adequately screen FTJs within the existing

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system and the senselessness of the suspension ordered by the Memo: they have tracked down

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Joseph Doe’s family to grant admission and they now assert that a proposed interim guidance

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would allow for the travel of all I-730 refugee applicants with valid travel letters on or before

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October 24, 2017. Decl. of Jennifer L. Smith ¶ 2, Dkt. # 95-1. This Court should reject
Defendants’ continued “talismanic incantation” of national security concerns. Hawai‘i v. Trump,

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No. 17-17168, 2017 WL 6554184, at *18 (9th Cir. Dec. 22, 2017) (citation omitted).
Third, Defendants assert that “[e]ven a single State ‘suffers a form of irreparable injury’

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‘[a]ny time [it] is enjoined by a court from effectuating statutes enacted by representatives of its

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people,’” MFS 3 (alteration in original) (quoting Maryland v. King, 567 U.S. 1301, 1303

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(2012)). But King involved a challenge to a duly enacted Maryland statute. Here, it is Defendants

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who—based on an agency policy issued without any formal process—seek to override a statute
PLAINTIFF DOE’S
OPPOSITION
(No. C17-00178JLR) - 3

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, W ashington 98164
TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200
Seattle, W A 98101-3052
TE L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0
FA CS IM I L E : ( `2 0 6 ) 6 2 3 -3 3 8 4

 Case 2:17-cv-00178-JLR Document 101 Filed 01/04/18 Page 5 of 15

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enacted by Congress: the non-discretionary family reunification provision of 8 U.S.C. §

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1157(c)(2)(A). To the extent King is applicable, it weighs against a stay. In addition, the

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Supreme Court in King did not find irreparable injury based solely on the fact that
implementation of a statute was enjoined but, rather, found that specific concrete harms would
arise absent a stay. See King, 567 U.S. at 1301 (citing, with respect to statute allowing law

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enforcement officials to collect DNA samples, 58 criminal prosecutions resulting from matches

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from arrestee swabs taken over two-year period). Defendants have failed to show the irreparable

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harm that would warrant an emergency stay of the Court’s injunction.

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B.

Defendants Are Not Likely to Succeed on the Merits.
Joseph Doe’s claims are based on unambiguous, mandatory statutory language.

Defendants do no more than rehash arguments this Court has already rejected. They have not met

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their burden to show that they are likely to succeed on the merits of their appeal.
Defendants invoke their ability to make eligibility determinations for FTJ refugees. MFS

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10. But Congress spelled out the relevant eligibility criteria in great detail in 8 U.S.C. § 1182(a)

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and also specified that certain of those ineligibility grounds are not applicable to refugees,

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including FTJ refugees, 8 U.S.C. § 1157(c)(3)). For FTJ beneficiaries who meet the applicable

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eligibility criteria, 8 U.S.C. § 1157(c)(2)(A) creates a non-discretionary statutory entitlement to
refugee status. See Spencer Enters., Inc. v. United States, 345 F.3d 683, 688 (9th Cir. 2003)
(EB 5 visa eligibility non-discretionary because agency determination is “guided by the statutory

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requirements of the EB 5 program” and statute provides that if petitioner is eligible, agency

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“shall” approve the petition); Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec.,

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769 F.3d 1127, 1138-39 (D.C. Cir. 2014) (L-1B visa petitions are non-discretionary because

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there is no explicit grant of discretion to the agency and “because Congress legislated statutory
criteria to be applied in deciding such petitions”). Defendants’ responsibility to apply the
PLAINTIFF DOE’S
OPPOSITION
(No. C17-00178JLR) - 4

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, W ashington 98164
TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200
Seattle, W A 98101-3052
TE L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0
FA CS IM I L E : ( `2 0 6 ) 6 2 3 -3 3 8 4

 Case 2:17-cv-00178-JLR Document 101 Filed 01/04/18 Page 6 of 15

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eligibility standards delineated by Congress does not give them discretion to suspend the

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unambiguous entitlement provided by 8 U.S.C. § 1157(c)(2)(A), and they are not likely to

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succeed on the merits based on this argument.

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Moreover, Defendants already determined that Joseph Doe’s wife and children are

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eligible for admission under 8 U.S.C. § 1182(a). See Decl. of Jennifer B. Higgins (“Higgins

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Decl.”) ¶ 9, Dkt. # 51-1 (“A USCIS adjudications officer stationed abroad will make the final

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determination on whether to approve or deny the Form I-730 and, if approved, will coordinate

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with the RPC [refugee processing center] for the beneficiary’s sponsorship assurance.”)

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(emphasis added); Decl. of Joseph Doe in Supp. of Mot. for Prelim. Inj. ¶ 12, Dkt. # 47 (Joseph’s
family has sponsorship assurance). Congress created a statutory entitlement allowing Joseph to
bring his wife and children to join him in his new life in the United States with lawful
immigration status, and Plaintiff’s wife and children should be allowed to travel to the United

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States and request admission.3 See Higgins Decl. ¶ 10 (“Once assurance is obtained [], and the

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medical examination and security vetting are successfully completed, DOS or USCIS will issue

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travel authorization documents in the form of a boarding document. This boarding document

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allows an eligible beneficiary to travel to the United States to request admission as a refugee.”).

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Finally, Defendants contend that they are likely to succeed on the merits of the notice and

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comment claim because the enjoined provisions of the Memo were procedural and not
substantive. MFS 11 (arguing that “any change in procedure that delays a prospective refugee’s

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Although 8 U.S.C. § 1157(c)(2)(A) does not guarantee admission to the United States, the
entitlement to “status” in fact provides much more than admission: it confers lawful
immigration status. Being admitted with the same status as principal refugees allows FTJ
refugees to adjust their status to that of Lawful Permanent Resident after one year and then,
after 5 years, apply for U.S. citizenship.

PLAINTIFF DOE’S
OPPOSITION
(No. C17-00178JLR) - 5

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, W ashington 98164
TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200
Seattle, W A 98101-3052
TE L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0
FA CS IM I L E : ( `2 0 6 ) 6 2 3 -3 3 8 4

 Case 2:17-cv-00178-JLR Document 101 Filed 01/04/18 Page 7 of 15

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arrival in the United States, or makes it less likely for someone to be granted refugee status,

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would suddenly become a substantive rule”). But Defendants omit the fact that they indefinitely

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halted the process while implementing the changes they seek. Congress did not grant Defendants
the statutory authority to suspend the FTJ process, but even if Defendants did have such
authority, a rule wholly suspending the program is substantive.
Although Defendants have taken the litigation position that the suspension is a “brief

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implementation period,” see, e.g., id. at 10, they have not amended the Memo to add a time limit

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to the suspension, even as they have demonstrated repeated willingness to withdraw executive

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orders and issue new, materially similar ones. EO-4 and the Agency Memo remain in place, and
Joseph Doe challenges the FTJ provisions of the Agency Memo as written. Defendants’ failure
to remediate the Memo is compounded by their previous actions, which form a pattern of one
“temporary” measure followed by another, each defended on the ground that it will soon expire.

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For example, EO-2 ordered a 120-day suspension of USRAP admissions, and as soon as the 120-

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day period, Defendants issued EO-4 and the Agency Memo.

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And even where the prior iterations of the “Muslim ban” did contain a specified time
limit, the Supreme Court and Ninth Circuit have repeatedly affirmed injunctions and denied
requests to stay them. See, e.g., Trump v. IRAP, 137 S. Ct. 2080 (2017) (upholding in part the

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injunctions of EO-2, which contained 90 and 120-day limits); Hawai‘i v. Trump, 871 F.3d 646
(2017) (affirming injunction against EO-2); State v. Trump, 847 F.3d 1151 (9th Cir. 2017)

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(affirming injunction against EO-1, which also had a time limit).

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C.

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Staying the Preliminary Injunction Would Irreparably Harm Joseph Doe and
Those Similarly Situated to Him.
Defendants argue that a stay would not harm the individual Plaintiffs in the Doe and JFS

actions because “the individual Plaintiffs—perhaps excepting Joseph Doe—have not established
PLAINTIFF DOE’S
OPPOSITION
(No. C17-00178JLR) - 6

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, W ashington 98164
TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200
Seattle, W A 98101-3052
TE L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0
FA CS IM I L E : ( `2 0 6 ) 6 2 3 -3 3 8 4

 Case 2:17-cv-00178-JLR Document 101 Filed 01/04/18 Page 8 of 15

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that they have been injured or, indeed, affected at all by the challenged provisions of the Joint

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Memorandum.” MFS 6. Plaintiff Jeffrey Doe would be harmed by a stay of the injunction due to

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the additional delay and prolonged separation from family members, as this Court held, and for
the reasons explained in the JFS Plaintiffs’ response, which he joins. With respect to Joseph Doe,
Defendants contend that he is not injured by the Memo for two reasons: (1) FTJ processing is

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allegedly “already generally aligned” with principal refugee processing in Kenya, where his

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family resides, id. at 7, and (2) Joseph Doe’s family “falls within an exception” to the Memo —

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an exception mentioned for the very first time in a declaration filed on December 29, 2017. Id. at

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10 (citing Decl. of Jennifer L. Smith (“Smith Decl.”) ¶ 2, Dkt. # 95-1).

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Both arguments are unavailing, and contradicted by Defendants’ admission at oral
argument that Joseph Doe is injured by the Agency Memo: “At this point we’re not going to
argue that Joseph Doe does not have standing. . . . [I]t’s clear that he’s [sic] close enough to the

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brink of travel. I don’t have a credible argument to say that he hasn’t been injured.”4 The Court

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should reject Defendants’ attempt to now walk back that concession.

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1.

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Joseph Doe’s I-730 petition was suspended based on the FTJ provisions of
the Agency Memo.

There are two distinct provisions of the Agency Memo: (1) the SAO provision, which

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applies to principal refugee applicants, and (2) the “Form I-7305 Refugee Following-to-Join

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Processing” provision. Defendants argue that Joseph does not have standing to challenge the FTJ

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4

Videotape: Preliminary Injunction Hearing at 42:34-46, Doe v. Trump, No. C17-00178JLR
(Dec. 21, 2017), http://bit.ly/2lTGW7K (emphasis added).
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The spouses and children of principal refugees admitted to the United States are reunited with
the principal refugee through a petition—Form I-730 Refugee/Asylee Relative Petition—filed
by the principal refugee. See Higgins Decl. ¶¶ 2, 5, 6. See also Follow-to-Join Refugees and
Asylees, U.S. Dep’t of State - Bureau of Consular Affairs, http://bit.ly/2AiqX84 (last visited
Jan. 3, 2018).
PLAINTIFF DOE’S
OPPOSITION
(No. C17-00178JLR) - 7

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, W ashington 98164
TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200
Seattle, W A 98101-3052
TE L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0
FA CS IM I L E : ( `2 0 6 ) 6 2 3 -3 3 8 4

 Case 2:17-cv-00178-JLR Document 101 Filed 01/04/18 Page 9 of 15

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provisions of the Agency Memo because “following-to-join refugees from non-SAO countries

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processed in those locations were not impacted by the suspension related to alignment of vetting

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protocols.” MFS 7 (emphasis added). Not only is this assertion contradicted by the plain
language of the Agency Memo (which remains unamended), but Defendants have never offered
any evidence that any FTJ refugees were being processed at all prior to the injunction. And if

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Defendants’ assertions are correct, they again serve only to confirm the arbitrary and

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capriciousness of the Agency Memo.

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The Agency Memo lists four purported rationales for the suspension of FTJ processing,
only one of which is the alignment of vetting protocols with what principal refugees receive.
Another purported rationale for the FTJ suspension is “expanding SAO requirements for this
population[.]”6 Addendum to Agency Memo at 4. Whether Defendants say it is vetting protocol
alignment or the Somali nationality of Joseph Doe’s 4- and 5-year-old children that supposedly

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justifies the indefinite hold on Joseph Doe’s approved I-730 petition, it is by way of the FTJ

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provision of the Agency Memo that Defendants have suspended FTJ processing, and it is that

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suspension that Joseph Doe was affected by and challenges.

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2.

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Defendants cannot deprive Plaintiff Joseph Doe of standing by creating an
exception to their unlawful Agency Memo.

Defendants’ attempt to moot Joseph Doe’s claims by creating an exception for him is

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both unavailing and underscores the irrationality of the Agency Memo. MFS 9; Smith Decl. ¶ 2

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(mentioning for the first time purported “[p]roposed interim guidance” that would permit his

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application to move forward). Joseph Doe seeks to represent a class,7 and Defendants cannot

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The other two rationales are requesting submission of I-590 application “earlier in the process,”
and “vetting certain nationals or stateless persons against classified databases.” Addendum to
Agency Memo at 4.
7
See Pls.’ Mot. for Class Certification, Dkt. # 19, filed on April 11, 2017.
PLAINTIFF DOE’S
OPPOSITION
(No. C17-00178JLR) - 8

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, W ashington 98164
TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200
Seattle, W A 98101-3052
TE L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0
FA CS IM I L E : ( `2 0 6 ) 6 2 3 -3 3 8 4

 Case 2:17-cv-00178-JLR Document 101 Filed 01/04/18 Page 10 of 15

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wish this litigation away by processing his application. If a plaintiff’s claims are “inherently

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transitory,” mooting the putative class representative’s claims does not moot the class action,

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even if the court has not yet addressed class certification. Pitts v. Terrible Herbst, Inc., 653 F.3d
1081, 1090 (9th Cir. 2011); see also County of Riverside v. McLaughlin, 500 U.S. 44 (1991)
(same); Gerstein v. Pugh, 420 U.S. 103 (1975) (same). This principle applies where a defendant

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employs the “‘tactic of “picking off” lead plaintiffs,’” as “a claim transitory by its very nature

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and one transitory by virtue of the defendant’s litigation strategy share the reality that both

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claims would evade review.” Pitts, 653 F.3d at 1091 (citation omitted). See also United States v.

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Sanchez-Gomez, 859 F.3d 649, 658 (9th Cir. 2017) (holding that the challenge was “capable of

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repetition, yet evading review” because the harm was constantly occurring to “some member of
the class throughout the litigation”). Further, “[t]he heavy burden of persuading the court that the
challenged conduct cannot reasonably be expected to start up again lies with the party asserting

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mootness.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189

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(2000). Defendants cannot meet that burden here.

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This District rejected similar attempts to “pick off” named plaintiffs in Wagafe v. Trump,
in which the plaintiffs challenged the United States government’s “extreme vetting” program and
resulting delays in processing immigration applications. See Wagafe v. Trump, No. C17-0094-

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RAJ, 2017 WL 2671254, at *7 (W.D. Wash. June 21, 2017) (“Curiously, USCIS’s actions on
these applications took place almost immediately after Plaintiffs were added as proposed class

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representatives.”). As Judge Jones noted, “[t]o the extent that Defendants argue this fact moots

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Plaintiffs’ claims, ‘[i]t is well settled that “a defendant’s voluntary cessation of a challenged

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practice does not deprive a federal court of its power to determine the legality of the practice.”’”

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Id. (quoting Friends of the Earth, Inc., 528 U.S. at 189). And, “[f]urthermore, acting on
PLAINTIFF DOE’S
OPPOSITION
(No. C17-00178JLR) - 9

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, W ashington 98164
TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200
Seattle, W A 98101-3052
TE L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0
FA CS IM I L E : ( `2 0 6 ) 6 2 3 -3 3 8 4

 Case 2:17-cv-00178-JLR Document 101 Filed 01/04/18 Page 11 of 15

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applications subjected to CARRP—that were highlighted by a lawsuit challenging it—is very

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different than voluntary cessation of the CARRP program.” Id.

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Defendants have not taken any steps to modify the Agency Memo (and can therefore at
any time resume their suspension absent court intervention) and acknowledge with their actions
that the indefinite suspension is unnecessary. Their limited voluntary cessation does not even

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come close to depriving Plaintiff Joseph Doe of standing or negating the irreparable injury

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wrought by the Agency Memo.8

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D.

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The Supreme Court’s Recent Stay Orders Do Not Support a Stay in This Case.
Finally, Defendants claim that a stay is required because the Supreme Court stayed

preliminary injunctions as to EO-3 on December 4, 2017. MFS 2. That claim draws no support
from the actual content of the December 4 orders; requires this Court to ignore the Supreme

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Court’s June 26, 2017, order denying in large part the government’s requested stay of the
injunctions against EO-2; and ignores the many significant differences between the restrictions at
issue in this case and EO-3.

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First, the Supreme Court’s December 4 stay orders do not explain its decision to stay the
EO-3 injunctions. There is, therefore, no reasoning from the December 4 order that this Court
could apply here: “[i]t 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.” Findings of Fact,
Conclusions of Law, and Order Issuing a Prelim. Inj. (“Order”) 61-62 n.30, Dkt. # 92.
Defendants provide no new reason to find otherwise.

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If the Court deems it necessary, Plaintiffs would seek leave to amend to add another FTJ
petitioner with an approved I-730 application whose hoped-for family reunification has been
indefinitely suspended.

PLAINTIFF DOE’S
OPPOSITION
(No. C17-00178JLR) - 10

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, W ashington 98164
TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200
Seattle, W A 98101-3052
TE L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0
FA CS IM I L E : ( `2 0 6 ) 6 2 3 -3 3 8 4

 Case 2:17-cv-00178-JLR Document 101 Filed 01/04/18 Page 12 of 15

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Second, Defendants are notably silent with regard to the Supreme Court’s earlier,
reasoned June 26, 2017, opinion denying a stay in relevant part. See Trump v. IRAP, 137 S. Ct.
2080, 2089 (2017). That order, like this case, involves purportedly temporary bans justified by
the government’s desire to study and upgrade vetting procedures. The Supreme Court
nonetheless denied a stay of the injunctions of EO-2 as to the same refugees protected by this

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Court’s preliminary injunction—those with credible claims of bona fide relationships to United

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States persons and entities. And the “harms and interests” asserted in the government’s EO-3

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stay application, which the government cites as being “similar to those at issue here,” MFS 3,

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were invoked as to both EO-2 and EO-3. Compare, e.g., MFS 2-4, 6 (relying on the
government’s interest in “conducting appropriate screening of aliens” and generalized
“institutional injuries” from any injunction of an executive policy), with Appl. for Stay 19, 33,
Trump v. IRAP, No. 16A1190 (U.S. filed June 1, 2017), and Appl. for Stay 35-36, Trump v.
IRAP, No. 17A560 (U.S. filed Nov. 21, 2017) (similar).
This case is more like EO-2 than EO-3. In seeking the stays of the EO-3 injunctions, the
government leaned heavily on the existence of a “Presidential determination concerning the
adequacy of foreign governments’ information-sharing.” Appl. for Stay 37, Trump v. IRAP, No.
17A560 (U.S. filed Nov. 21, 2017) (distinguishing the Supreme Court’s earlier denial of a stay in

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relevant part because no such determination had yet been made). Here, there is no concern
regarding information sharing. Relatedly, the government asserted an injury in seeking the

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December 4 stays that was not advanced in EO-2 and is entirely absent here: a purported

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impediment of “the President’s ability to pressure foreign governments to improve their

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practices.” Reply in Supp. of Appl. for Stay 3, Trump v. IRAP, No. 17A560 (U.S. filed Nov. 30,

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2017). Further, the most recent presidential determination regarding refugees is that “Presidential
PLAINTIFF DOE’S
OPPOSITION
(No. C17-00178JLR) - 11

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, W ashington 98164
TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200
Seattle, W A 98101-3052
TE L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0
FA CS IM I L E : ( `2 0 6 ) 6 2 3 -3 3 8 4

 Case 2:17-cv-00178-JLR Document 101 Filed 01/04/18 Page 13 of 15

1

action to suspend the entry of refugees under the USRAP is not needed at this time to protect the

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security and interests of the United States and its people.” EO-4, 82 Fed. Reg. 50,055, at 50,057

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(Oct. 24, 2017) (emphasis added).
Third, and crucially, this case is fundamentally distinct from all the litigation regarding
the earlier Executive Orders and the current visa ban. Neither the FTJ provision of the INA, 8

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U.S.C. § 1157(c)(2)(A), nor the APA’s notice-and-comment requirement, 5 U.S.C. § 553, were

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raised or analyzed in any prior cases or opinions on the earlier Executive Orders. In addition,

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EO-1, EO-2, and EO-3 each involved entry prohibitions imposed by the President. The President

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did not order the restrictions at issue here (and, to the contrary, found suspension of entry was
unnecessary), which were put in place by administrative agency officials. Yet throughout the
related litigation, the government has consistently invoked the President’s role in our
constitutional scheme as of the utmost importance. Indeed, this difference is underscored by

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another: In all of the other litigation, the government relies on authorities Congress has granted

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to the President: 8 U.S.C. §§ 1182(f) and 1185(a)(1). Not so here. See Order 51 (discussing the

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statutory authorities invoked in this case). In light of these key differences, this Court should

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reject the government’s argument that the Supreme Court’s summary stay orders require a stay
here as well.

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IV.

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CONCLUSION

Defendants have not satisfied their burden to justify the extraordinary relief they seek

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here. Plaintiff Joseph Doe respectfully requests that the Court deny Defendants’ request to stay

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the injunction.

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PLAINTIFF DOE’S
OPPOSITION
(No. C17-00178JLR) - 12

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, W ashington 98164
TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200
Seattle, W A 98101-3052
TE L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0
FA CS IM I L E : ( `2 0 6 ) 6 2 3 -3 3 8 4

 Case 2:17-cv-00178-JLR Document 101 Filed 01/04/18 Page 14 of 15

1

DATED this 4th day of January, 2018.
KELLER ROHRBACK L.L.P.

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AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
By: /s/ Emily Chiang
g
/s/ Lisa Nowlin
Emily Chiang, WSBA # 50517
Lisa Nowlin, WSBA # 51512
901 Fifth Avenue, Suite 630
Seattle, WA 98164
Telephone: (206) 624-2184
Email: echiang@aclu-wa.org
lnowlin@aclu-wa.org
Attorneys for Plaintiff

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By: /s/ Lynn Lincoln Sarko
n
By: /s/ Tana Lin
n
By: /s/ Amy Williams-Derry
yo
By: /s/ Derek W. Loeser______________
By: /s/ Alison S. Gaffney
Lynn Lincoln Sarko, WSBA # 16569
Tana Lin, WSBA # 35271
Amy Williams-Derry, WSBA # 28711
Derek W. Loeser, WSBA # 24274
Alison S. Gaffney, WSBA # 45565
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Telephone: (206) 623-1900
Facsimile: (206) 623-3384
Email: lsarko@kellerrohrback.com
tlin@kellerrohrback.com
awilliams-derry@kellerrohrback.com
dloeser@kellerrohrback.com
agaffney@kellerrohrback.com
By: /s/ Laurie B. Ashton
N
Laurie B. Ashton (admitted pro hac vice)
3101 North Central Avenue, Suite 1400
Phoenix, AZ 85012-2600
Telephone: (602) 248-0088
Facsimile: (602) 248-2822
Email: lashton@kellerrohrback.com

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By: /s/ Alison Chase
e
Alison Chase (admitted pro hac vice)
1129 State Street, Suite 8
Santa Barbara, CA 93101
Telephone: (805) 456-1496
Facsimile: (805) 456-1497
Email: achase@kellerrohrback.com

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Attorneys for Plaintiff/Cooperating
Attorneys for the American Civil Liberties
Union Of Washington Foundation

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PLAINTIFF DOE’S
OPPOSITION
(No. C17-00178JLR) - 13

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, W ashington 98164
TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200
Seattle, W A 98101-3052
TE L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0
FA CS IM I L E : ( `2 0 6 ) 6 2 3 -3 3 8 4

 Case 2:17-cv-00178-JLR Document 101 Filed 01/04/18 Page 15 of 15

1
CERTIFICATE OF SERVICE

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I hereby certify that on January 4, 2018, I electronically filed the foregoing PLAINTIFF
DOE’S OPPOSITION TO DEFENDANTS’ EMERGENCY MOTION FOR STAY OF
PRELIMINARY INJUNCTION PENDING APPEAL using the Court’s CM/ECF system,
causing a notice of filing to be served upon all counsel of record.
KELLER ROHRBACK L.L.P.

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By: /s/ Tana Lin

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n

Tana Lin, WSBA # 35271
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Telephone: (206) 623-1900
Facsimile: (206) 623-3384
Email: tlin@kellerrohrback.com

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Attorney for Plaintiffs/Cooperating
Attorney for the American Civil
Liberties Union Of Washington
Foundation

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PLAINTIFF DOE’S
OPPOSITION
(No. C17-00178JLR) - 14

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
901 Fifth Avenue, Suite 630
Seattle, W ashington 98164
TELEPHONE: (206) 624-2184

KELLER ROHRBACK L.L.P.
1201 Third A venue, Suite 3200
Seattle, W A 98101-3052
TE L E P H O N E : ( 2 0 6 ) 6 2 3 - 1 9 0 0
FA CS IM I L E : ( `2 0 6 ) 6 2 3 -3 3 8 4