Case 2:17-cv-00178-JLR Document 142 Filed 05/14/18 Page 1 of 10 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 Civil Action No. 2:17-cv-00178JLR v. DONALD TRUMP, et al., Defendants. Civil Action No. 2:17-cv-01707JLR DEFENDANTS’ RESPONSE TO JFS PLAINTIFFS’ MOTION FOR REINSTATEMENT AND DOE PLAINTIFFS’ MOTION TO JOIN (RELATING TO BOTH CASES) 21 22 23 24 25 26 DEFENDANTS’ RESPONSE 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 142 Filed 05/14/18 Page 2 of 10 1 INTRODUCTION 2 Plaintiffs challenged, and this Court enjoined, two provisions of a Memorandum to the 3 President issued on October 23, 2017 (“Agency Memo”). Those provisions expired months ago 4 by their own terms. Specifically, the 90-day Security Advisory Opinion (“SAO”) review period 5 and de-prioritization specified in the Agency Memo expired by its own terms on January 22, 2018; 6 and on February 1, 2018, the Government completed its implementation of additional security 7 screening procedures for following-to-join (“FTJ”) refugees, thus terminating the FTJ 8 implementation period in accordance with its own terms. After these developments, the Ninth 9 Circuit remanded to this Court “to address mootness in the first instance,” Dkt. 126, and this Court 10 then directed the parties to propose “how [it] should proceed on remand in addressing the issue 11 of mootness,” Dkt. 128. Pursuant to this Court’s May 4, 2018, Order, Dkt. 134, Defendants will 12 move to dismiss this action on or before May 25, 2018, and in that motion will more fully explain 13 how these enjoined provisions have long since expired such that this action is now moot. 14 Rather than await orderly briefing “to address mootness in the first instance” as the Ninth 15 Circuit directed, Plaintiffs are now moving forward in an effort to obtain discovery on the expired 16 provisions. JFS Plaintiffs filed a “Motion to Reinstate” their cross-motion for discovery, Dkt. 17 121, 131, which this Court had removed from its calendar after noting that Plaintiffs’ discovery 18 arguments could be incorporated into mootness briefing, Dkt. 128. Defendants do not object to 19 reinstatement of the discovery motion, but Defendants do object to the JFS Plaintiffs’ latest filing, 20 which does far more than seek reinstatement; it plainly reflects an inappropriate attempt to 21 supplement a fully-briefed motion without leave of court. The parties’ recently-filed joint status 22 report indicates that the JFS Plaintiffs would file a “motion to reinstate,” not that they would 23 supplement the reinstated discovery motion with additional argument or “evidence.” See Dkt. 24 129 at 3. This Court should strike JFS Plaintiffs’ anomalous filing on procedural grounds. 25 More fundamentally, Plaintiffs’ filings entirely ignore that their claims are moot, and that 26 this Court thus lacks subject-matter jurisdiction over them. See Steel Co. v. Citizens for a Better DEFENDANTS’ RESPONSE - 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 142 Filed 05/14/18 Page 3 of 10 1 Env’t, 523 U.S. 83, 94 (1998) (“Without jurisdiction the court cannot proceed at all in any cause.” 2 (citation omitted)). The Ninth Circuit remanded for this Court “to address mootness in the first 3 instance,” Dkt. 126, and that is what this Court should do. Defendants’ forthcoming motion to 4 dismiss will demonstrate that this action is moot and that discovery is therefore inappropriate. 5 Any consideration of discovery should thus be deferred until this Court adjudicates whether this 6 case is moot and whether the Court has jurisdiction. 7 In any event, Plaintiffs’ filings fail to show any need for discovery here. Defendants have 8 acted with transparency and candor to demonstrate their compliance with the preliminary 9 injunction. Even though the Government is “presume[d] . . . [to] have properly discharged [its] 10 official duties” “in the absence of clear evidence to the contrary,” United States v. Chem. Found., 11 272 U.S. 1, 14-15 (1926), Defendants nevertheless notified this Court about the details of their 12 comprehensive compliance efforts. 13 (“State”) told consular posts to adjudicate FTJ applications in the normal course, and “issued 14 guidance to its implementing partners” instructing them “to resume processing all follow-to-join 15 refugees . . . and nationals of . . . the 11 countries on the SAO list” with a bona fide relationship. 16 Dkt. 114-1, Gauger Decl. ¶¶ 2-3. The Department of Homeland Security (“DHS”) similarly 17 notified its officers of the Court’s Order and its impact. Dkt. 114-2, Higgins Decl. ¶ 2. Plaintiffs’ 18 recent submissions do nothing to call into question or otherwise disturb these representations. 19 The congressional staff emails simply erred when they suggested that the suspension of 20 processing of refugee cases continued until the expiration of the memo. As explained in an 21 attached declaration, those emails were written by an employee in the congressional relations 22 office at State’s Bureau of Population, Refugees, and Migration (“PRM”). That employee had no 23 role in processing refugee applications or otherwise implementing this Court’s injunction, and the 24 responses were not reviewed by anyone else before they were sent. Moreover, while the Agency 25 Memo obviously impacted the admission of SAO and FTJ refugee applicants during the short 26 period following its issuance and before the injunction took effect, the refugee-admission numbers After this Court’s injunction, the Department of State DEFENDANTS’ RESPONSE - 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 142 Filed 05/14/18 Page 4 of 10 1 and other evidence submitted by Plaintiffs do not suggest that the now-expired Agency Memo 2 nevertheless continues in force and effect. And printouts from a State webpage do not show that 3 the FTJ suspension continues; quite the contrary, these printouts show that FTJ processing has 4 resumed. In short, none of Plaintiffs’ most recent submissions cast doubt on Defendants’ 5 compliance efforts or otherwise show that discovery is appropriate. 6 Defendants fully complied with this Court’s injunction, and this action is moot. For those 7 reasons, this Court should reject Plaintiffs’ discovery requests and grant Defendants’ forthcoming 8 motion to dismiss this action as moot. ARGUMENT 9 10 1. JFS Plaintiffs’ Supplemental Arguments Are Improper 11 As an initial matter, the JFS Plaintiffs’ latest attempt to supplement their discovery request 12 is improper. Previously, the JFS Plaintiffs requested discovery in their opposition to Defendants’ 13 motion to stay pending appeal, Dkt. 115, and after Defendants pointed out that was procedurally 14 improper, Dkt. 120, JFS Plaintiffs filed a Cross-Motion for Limited Expedited Discovery on 15 Compliance with Preliminary Injunction, Dkt. 121. That motion is fully briefed. After the Ninth 16 Circuit remanded to this Court to address “mootness in the first instance,” Dkt. 126, this Court 17 removed that motion from its calendar, noting that the “JFS Case Plaintiffs may wish to 18 incorporate their discovery arguments into any briefing concerning the issue of mootness.” Dkt. 19 128. The parties agreed that the cross-motion was not moot, and thus the parties’ joint status 20 report and stipulated motion noted that the JFS Plaintiffs would move to “reinstate” that 21 cross-motion. Dkt. 129, 130. 22 What Defendants did not agree to, and had no reason to anticipate, was that the JFS 23 Plaintiffs’ reinstatement motion would amount to their fourth brief on discovery and would 24 attempt to supplement their previous filings with additional evidence and argument. Indeed, that 25 filing expressly “refer[s]” the Court “to the arguments that have been fully briefed in the prior 26 motion,” and “focus[es] instead on facts that have” allegedly “come to light” that “provide further DEFENDANTS’ RESPONSE - 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 142 Filed 05/14/18 Page 5 of 10 1 support for expedited discovery.” Dkt. 131 at 2-3. 1 Plaintiffs cite no rule that would entitle them 2 to supplement the previous discovery motion without first securing leave of court, which they 3 have not done. And although Local Civil Rule 7(n) allows parties to file a Notice of Supplemental 4 Authority, that rule requires that such notices be filed “without argument,” a mandate that JFS 5 Plaintiffs’ filing plainly violates. Moreover, had the Plaintiffs brought the two emails from PRM’s 6 congressional relations office to Defendants’ attention before their filings—consistent with the 7 parties’ agreement in their joint status report and the stipulated order signed by this Court to “meet 8 and confer prior to the filing” of any additional motion that a party thinks is necessary, Dkt. 129 9 at 2, Dkt. 134 at 2—Defendants could have informed them that these emails reflect nothing more 10 than an inadvertent mistake by a State employee who does not process refugee applications. The 11 Court should strike the JFS Plaintiffs’ improper filing. 12 13 14 15 16 17 18 19 20 21 22 23 24 2. Defendants Complied with This Court’s Injunction, and Plaintiffs Have Not Shown Otherwise Defendants fully complied with the injunction, and Plaintiffs’ suggestions to the contrary are baseless. Plaintiffs first argue that two emails from State’s congressional liaison office show that “there was no refugee processing” for SAO nationals after this Court’s injunction. Dkt. 131 at 3; Dkt. 139. Of course, Defendants have already explained how processing did resume after this Court’s injunction. Dkt. 114 at 2-3. And as explained by the Acting Director of the Admissions Office at PRM, those emails were simply mistaken. Second Gauger Decl. ¶ 6, attached hereto as Exhibit A. Both emails were written by the same State employee who had no involvement whatsoever in the processing of refugee applications or implementing this Court’s injunction, and that employee made an inadvertent mistake. Id. ¶¶ 2-4, 6. In fact, the individuals’ applications that were the subject of the emails (and others) were processed in accordance with the injunction, as of the next business day following that injunction. Id. ¶ 6. 25 26 1 Plaintiffs once again rely upon California Dep’t of Social Services v. Leavitt, 523 F.3d 1025 (9th Cir. 2008), a case that Defendants have already explained is inapposite here, Dkt. 123 at 4-5. DEFENDANTS’ RESPONSE - 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 142 Filed 05/14/18 Page 6 of 10 Next, Plaintiffs claim that the number of SAO nationals admitted since this Court’s 1 2 injunction “strongly suggests that Defendants are noncompliant with this Court’s injunction.” 3 Dkt. 131 at 3. This is not true. Defendants have already explained how, after the injunction, 4 they “apprised personnel of the injunction’s immediate impact,” “issued guidance” so that 5 “implementing partners could implement the injunction,” and “instructed” those partners “to 6 resume processing” of SAO nationals. ECF No. 114 at 2-3 (quoting Higgins Decl. ¶ 2; Gauger 7 Decl. ¶¶ 2-3). Indeed, Defendants provided Plaintiffs’ counsel with a copy of the Secretary of 8 Homeland Security’s January 29, 2018, memorandum (even though it is not a part of this action 9 and there was no obligation for Defendants to do so), which reflected the Secretary’s 10 determinations following the 90-day SAO review and made clear that “the prioritization set 11 forth in the [Agency Memo] is not hereby renewed,” Second Higgins Decl. Ex. 3, attached 12 hereto as Exhibit B. And, the Government added SAO nationals to circuit rides that were 13 already planned for the second quarter, and aimed to include locations where more SAO 14 nationals are ready for interview in the third quarter. Second Higgins Decl. ¶¶ 3-4; accord Dkt. 15 114. 16 The Government has already explained that it is not constructive to try to compare the 17 quantity or percentage of SAO nationals from years past to the current year. Dkt. 120 at 6. 18 Fewer SAO nationals would have been ready for travel in December and January in light of the 19 de-prioritization of SAO nationals lacking a bona fide relationship with a U.S. person or entity 20 during the 90-day review. See id. The Court’s injunction took effect over two months after the 21 Agency Memo was issued and the SAO review period began, so it should come as no surprise 22 that the initial de-prioritization, on top of the 120-day suspension, resulted in a smaller 23 population of refugees ready to travel for a period after the issuance of the injunction. 24 Moreover, as a result of both the 120-day review and the 90-day review, the Government 25 enhanced its screening and vetting protocols, which Plaintiffs have not challenged and which 26 are not a part of this action. These enhancements have impacted the timing for processing and DEFENDANTS’ RESPONSE - 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 142 Filed 05/14/18 Page 7 of 10 1 admissions of SAO nationals, which is not uncommon for the implementation of new 2 procedures. Higgins Decl. ¶ 5. As Defendants previously explained, in order to implement the 3 screening enhancements after the 120-day review, State needed to update the computer system 4 that allows for automated SAO requests, and while working to update that system, State had to 5 rely on an alternative, manual approach that was slower and more resource intensive. Dkt. 120 6 at 5; Dkt. 120-1 ¶ 3. And in discussing the enhancements resulting from the 90-day review, the 7 Secretary’s Memorandum makes clear that, “[a]s with other new screening and vetting 8 enhancements implemented by the Department and interagency partners in the past, these 9 modifications may lengthen processing times and will take time to implement, but” are “critical 10 to strengthening the security and integrity of the USRAP.” Second Higgins Decl. Ex. 3 at 3. In 11 this consolidated action, Plaintiffs challenged two provisions of a memorandum that expired by 12 their own terms long ago; they did not challenge the Government’s general administration of the 13 USRAP or vetting improvements for SAO nationals, and their arguments here reflect nothing 14 more than an attempt to seek discovery into claims that they have not alleged in their operative 15 complaints and to enlist this Court to generally supervise the USRAP. 16 This conclusion is reinforced by Plaintiffs’ two remaining arguments. Doe Plaintiffs 17 highlight FTJ procedures listed on State’s website, Dkt. 137, but this is not a lawsuit about the 18 procedures used to process FTJ applications (or SAO national applications), a point previously 19 recognized by this Court. See Doe v. Trump, 288 F. Supp. 3d 1045, 1072-73 (W.D. Wash. 20 2017) (“Plaintiffs do not seek to enjoin the agencies’ efforts to implement screening 21 mechanisms for FTJ refugees that are similar to or aligned with the processes employed for 22 principal refugees. Plaintiffs do not seek to enjoin the agencies from conducting their 90–day 23 ‘detailed threat analysis and review’ of the SAO countries to determine what additional 24 safeguards the agencies believe are necessary with respect to the admission of refugees from 25 those countries.”). And Doe Plaintiffs’ attachment of a declaration by an immigration attorney 26 (who is not a counsel in this action) regarding his unnamed client (who is not a party in this DEFENDANTS’ RESPONSE - 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 142 Filed 05/14/18 Page 8 of 10 1 action) likewise has nothing to do with this action. Plaintiffs’ bald claim that this unnamed 2 refugee’s unnamed spouse was “affected by” the Agency Memo, Dkt. 136, is not supported by 3 any evidence. 4 Plaintiffs cannot obtain discovery based on statements in a discovery brief that relate to 5 issues they have not challenged in their operative complaints. Their most recent filings confirm 6 they simply seek information about policies and decisions not at issue in this case, and to 7 impliedly reformulate their claims without first developing facts to support the claims in a 8 complaint. This Court should not agree to Plaintiffs’ proposed deviation from the ordinary rules 9 of civil procedure, nor should it accept Plaintiffs’ implicit request for the Court to supervise the 10 administration of the USRAP outside of the terms of the injunction or the complaints. This 11 Court should accordingly reject Plaintiffs’ discovery arguments, which are untethered to the 12 subject of this lawsuit and this Court’s preliminary injunction. CONCLUSION 13 14 Plaintiffs’ discovery requests are meritless, and this action is moot. This Court should not 15 allow any discovery to occur, and should grant Defendants’ forthcoming motion to dismiss on 16 mootness grounds, which Defendants will file on or before May 25, 2018. At a minimum, this 17 Court should reject Plaintiffs’ request for discovery before adjudication of Defendants’ 18 forthcoming motion to dismiss, so that the Court can take into account the parties’ specific 19 disputes as to mootness and assure itself of subject-matter jurisdiction. 20 DATED: May 14, 2018 21 22 23 24 25 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General AUGUST E. FLENTJE Special Counsel JENNIFER D. RICKETTS Director, Federal Programs Branch 26 DEFENDANTS’ RESPONSE - 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 142 Filed 05/14/18 Page 9 of 10 1 2 3 4 5 6 7 8 9 10 JOHN R. TYLER Assistant Director, Federal Programs Branch /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 Attorneys for Defendants 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ RESPONSE - 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 142 Filed 05/14/18 Page 10 of 10 CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 I certify that on May 14, 2018, 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 14th day of May, 2018. /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 DEFENDANTS’ RESPONSE - 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 142-1 Filed 05/14/18 Page 1 of 4 Doe v. Trump, No. 2:17-178 Jewish Family Service of Seattle v. Trump, No. 2:17-1707 Exhibit A ?awsCase Document 142-1 Filed 05/14/18 Page 2 of 4 The Honorable James L. Robart UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE JOHN DOE, et 211., Civil Action No. Plaintiffs, V. DONALD TRUMP, et a1., Defendants. JEWISH FAMILY SERVICE OF Civil Action No. SEATTLE, et a1., Plaintiffs, DECLARATION OF KELLY A. GAUGER IN SUPPORT OF V- RESPONSE TO JFS MOTION FOR DONALD TRUMP, 6t 611-: REINSTATEMENT AND DOE MOTION TO JOIN Defendants. (RELATING TO BOTH CASES) 1, Kelly A. Gauger, for my Declaration pursuant to 28 U.S.C. 1746, hereby state and depose as follows: 1. I am the Acting Director of the Admissions Office of the Bureau of Population, Refugees, and Migration of the United States Department of State. I have served as Acting Director of the Admissions Of?ce since 2017, and I have served as Deputy Director of the Admissions Of?ce since 2011. In my current position, I oversee DECLARATION OF KELLY A. GAUGER- 1 DEPARTMENT OF JUSTICE 20 Massachusetts Ave, NW Doe, emf. v. Trump. Hat, No. ZIIT-CV-DOITS (ILR) Washington, DC 2053!] Jewish Filmin Service ofSeatrie, er at. v. Trump. 9:01, No. (JLR) Te" ?"1151?259 (.11th Case Document 142-1 Filed 05/14/18 Page 3 of 4 the Department of State?s functions in the US Refugee Admissions Program, conducted under the authority of the Refugee Act of 1980. I submit this Declaration in support of Defendants? Response to JF Plaintiffs? Motion for Reinstatement and Doe Plaintiffs? Motion to Join. 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 Acting Director of the PRM Of?ce of Admissions. . I am familiar with procedures for responding to Congressional requests for information regarding the status of refugee applications. These requests are sent to Congressional Liaison. The Congressional Liaison is an individual whose duty is to respond to these requests by looking up information regarding the speci?c applicants in question in the Worldwide Refugee Admissions Processing System (WRAPS), which contains applicant case ?les but not programmatic instructions for the processing applications. The responses are generally sent by the Congressional Liaison alone, without review by other of?ces such as Admissions Of?ce or the Of?ce of the Legal Adviser. . I have reviewed the e-mails from Congressional Liaison attached as Exhibits to the Declarations of Hamdi Mohammed (Dkt. 139) and John Doe I (Dkt. 132). I have con?rmed with the Congressional Liaison that these responses were not reviewed by anyone else prior to being sent by the Congressional Liaison to Congress. . The Congressional Liaison is not a member of the Admissions Of?ce, and plays no role in the administration and processing of applications for refugee resettlement in the United States. . As explained in paragraph 2 of my previous Declaration in this case, dated January 18, 2018 (Dkt. 114-1), the requirements of the December 23, 2017, injunction issued by this Court were immediately sent to implementing partners at the Resettlement DECLARATION OF KELLY A. onuosn- 2 DEPARTMENT 01? JUSTICE 20 Massachusetts Ave., NW Doe, at at. v. Trump, e? at, No. (JLR) Washington, DC 20530 Jewish Service ofSeatlie, a at. v. Trump, e: at, No. 2: lacy-0170? (JLR) (202) ??159 Case Document 142-1 Filed 05/14/18 Page 4 of 4 Support Centers (RSCs) overseas so that the RS Cs could resume processing of the applicants within the scope of the injunction at the start of the next business day. 6. The representations in the. e?mails attached as Exhibits to the Declarations of Harndi Mohammed and John Doe I are incorrect and the result of an inadvertent error by the Congressional Liaison. Contrary to those representations, these and other refugee cases were processed in accordance with the injunction issued December 23, 2017, as of the next business day following that injunction. In particular, these cases were not ?on temporary hold? (Declaration of Harndi Mohamed, Exhibit A) or under ?temporary suspension? (Declaration of John Doel, Exhibit A) during the times periods described in the e-mails. 7. I declare under penalty of perjury that the foregoing is true and ceirect. Executed on mg ,2018. Kelly A. Zanger DECLARATION or KELLY A. 3 DEPARTMENT OF JUSTICE 20 Massachusetts Ave", NW Doe, e! at. v. Trump, e! (11., No. Washington. DC 20530 Jewish Fame Service ofSearrle, e: at v. Trump, 9; at, No. (JLR) ?h (101)514-3259 Case 2:17-cv-00178-JLR Document 142-2 Filed 05/14/18 Page 1 of 12 Doe v. Trump, No. 2:17-178 Jewish Family Service of Seattle v. Trump, No. 2:17-1707 Exhibit B Ix.) Case Document 142-2 Filed 05/14/18 Page 2 of 12 The Honorable James L. Robart UNITED STATI-IS DISTRICT COURT DISTRICT OF WASHINGTON JOHN et aI.. Plaintiffs. v. DONALD TRUMP. et aI.. Defendants. JISWISH FAMILY OF et aI.. Plaintiffs. v. DONALD TRUMP. ct aI.. Defendants. AT Civil Action No. Civil Action No. DECLARATION OF JENNIFER B. HIGGINS IN SUPPORT OF RESPONSE TO JFS MOTION FOR REINSTATEMENT AND DOE MOTION TO JOIN (RELATING TO BOTH CASES) I. Jennifer B. Iliggins. for my Declaration pursuant to 28 U.S.C. 1746. hereby state and deposc as follows: I. I am the Associate Director ofthc Refugee. Asylum and International Operations (RAIO) Directorate at US. Citizenship and Immigration Services (USCIS). within the Department of Homeland Security (DI-IS). have held this position since 20l7. In my current position. I oversee RAIO operations. which includes conducting refugee ION JENNIFER II. HIGGINS - I Um'. cl ul. Trump. cl No. 2: -tl()l78 ULR) Jenn/I cl ul. r. Trump. cl ul.. No. Zzl7-m -t l7ll7 .5. .ll STICK Aux. NW 20550 Tel: (202) LI) UI 6 Case Document 142-2 Filed 05/14/18 Page 3 of 12 processing activities in more than international locations over the course of a typical liseal year: processing requests for asylum at eight Asylum Offices domestically: and providing immigration services at USCIS ofliccs in 21 countries abroad. I submit this Declaration in support of Defendants? Response to JFS Plaintiffs? Motion for Reinstatement and Doc Plaintiffs" Motion to Join. The statements made herein are based on my personal knowledge and inlormation made available to me in the course of carrying out my duties and responsibilities as Associate Director. works closely with the Department ofState?s Bureau of Population. Refugees. and Migration (PRM) to schedule circuit rides of SC IS ofliccrs to interview refugee applicants. The schedule for circuit rides for the second quarter of liscal year 20l 8. as well as the current schedule for circuit rides for the third quarter. is attached as Exhibit 1 to this Declaration. As I previously stated to the Court in my January l9. 20l8. declaration. was informed that on December 26. 2017. Admissions Of?ce asde their overseas network of Resettlement Support Centers (RSCs) whether there were any Security Advisory Opinion (SAO) nationalsI who were ready for interview and who could be added to the second-quarter circuit ride schedule. in order to comply with the ourt?s injunction. As a result ofthis request. additional interviews for SAD nationals were added to the circuit rides to Indonesia. Nauru. and Manus. Per the schedule attached hereto as Exhibit 1. USCIS staffinterviewcd these additional cases during the second quarter. interviews were already planned in Algeria and Saudi Arabia for SAD nationals during the second quarter. As I previously stated to the Court in my January 2018. declaration. the .S. Department ofState (DOS) planned to request that conduct third-quarter circuit rides in locations where greater percentages nationals were ready for interviews. Nationals of. or stateless persons who last habitually resided in. a country subject to a Security Advisory ()pinion (SADI?ve. clul v, 'I'rump. Nu. 2:I7-c\ 410173 (.IIJU \vmhingmu. .lt'n'Is/I ofSeuIl/c. e! hump. cl No. 2: 707 R) Tl": (102) ?+3259 IQ UI Case Document 142-2 Filed 05/14/18 Page 4 of 12 namely. lraq. .lordan. Turkey. and Kenya. DOS and IS established a third-quarter circuit ride schedule that includes locations where SAO nationals are ready for interview. As the attached schedule2 indicates. the number nationals scheduled for interviews during third-quarter circuit rides was higher than the number interviewed in second quarter. 3. As a result ofthe l20-day and 90-day reviews directed by Executive Orders 13.780 and l3.815. USC IS. together with DOS. expeditiously implemented new security measures to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare ofthe United States. These new measures are part ofthe Administration?s ongoing efforts to enhance and improve screening and vetting for all persons seeking to travel to the United States. and they are designed to keep nefarious and fraudulent actors from exploiting the refugee program to enter the United States. See lixhibit 2. While necessary. these reviews and enhancements have lengthened processing times for some cases and slowed admissions. which is not uncommon with the implementation of new procedures. 6. l" or example. to date. relatively few approvablc refugee cases have received cleared results under the new SAO review procedures. 7. In addition to interviewing individuals from SAO countries. USC IS continues to finalize the adjudication of refugee cases from SAO nationals after completion of interviews and all required security checks. Upon receipt of responses from the vetting agencies. USCIS reviews the cases of nationals from SAO countries to ensure that the new 3 Circuit ride schedules are always subject to modi?cation based on changed circumstances. such as the availability ofvisas or the security situation in a given location. For example. there were SAO cases scheduled for interview in Nairobi: however. given security concerns in Nairobi. the team was diverted to Uganda prior to interviewing SAO cases on the schedule. Although USCIS planned to have a team in Jordan in the US [Embassy in Amman informed USCIS that there was an extremely high likelihood that the 03 circuit ride would be curtailed after a few weeks as the Embassy would be deferring all non-essential details in mid-May. Instead of risking a possible curtailment ofthe QS circuit ride. USCIS shifted the team to ligypt. where there were cases ready for interview. The ligypt and Jordan cases scheduled have roughly equivalent percentages and non-SAO nationalities. so there was no appreciable difference in the number of SAO interviews conducted because ofthis change\Nll 10 Mm?achuwmlw" NW Hue. cull. v. Trump. clul.. No. 2: \anhingum. 20530 ul'SmII/c. ulul. v. Trump. cIu/.. No. 707 (HR) am) 5'4'3259 Id 9) VI Case Document 142-2 Filed 05/14/18 Page 5 of 12 integrity measures resulting from the 120-day and 90-day reviews have been completed. This review may result in an approval. a denial. or the determination that another interview is required. Also as a result ofthe 120-day review directed by Executive Order 13.780. USCIS and DOS have implemented new measures to more closely align the vetting for Form 1-730. Refugee/Asylce Relative Petition. lollow-to-join (li'l?J) refugee beneliciaries with vetting done for principal and derivative family member refugees processed through the Refugee Admissions Program. These measures. implemented as of February 1. 2018. also include collection of additional beneficiary information earlier in the EU process in order to conduct more timely and comprehensive screening. including enhanced vetting of SAD nationals. USCIS and DOS have implemented the additional security measures for derivative refugee beneficiaries called for in the October 23. 2017 memorandum entitled "Resuming the United States Refugee Admissions Program with Enhanced Vetting apabilitics.? A redacted copy ofthe January 29. 2018. Memorandum from Secretary of Homeland Security Kirstjen Nielsen to USC IS Director L. l?rancis issna. which sets forth the Secretary?s determinations following the 90-day review. is attached hereto as Exhibit 3. 10. I declare under penalty of perjury that the foregoing is true and correct. Executed on 0.4.4 1 ?i . 2018. . . . a grinder 11% )x or JliNNll-lzlt ?rooms - 4 131:3": Ihw. Hal. Trump. cl No. (JI.R) \Vasllinglon. [1020530 .lutrmh I-ium/y Sew/cc q/SmII/c. cl Trump. cl No. 21743-01707 ULR) [202) 5'4'3259 Case 2:17-cv-00178-JLR Document 142-2 Filed 05/14/18 Page 6 of 12 Exhibit 1 Schedule for USCIS Circuit Rides for Second and Third Quarters of Fiscal Year 2018 Q2 Refugee Number of Number of Processing Cases SAO Cases Location Interviewed Interviewed Q3 Refugee Processing Locations Estimated Estimated Number of Number of SAO Cases Cases Scheduled Scheduled to to be be Interviewed Interviewed Tanzania 256 0 Ethiopia 400 25 Uganda 259 1 Kenya * 535 90 Burundi 218 0 Uganda** 660 015 Rwanda 198 0 Rwanda 330 0 Nauru Papua New Guinea 213 71 Egypt 185 170 252 133 Malaysia 560 5 El Salvador 380 0 Iraq (Baghdad) 130 130 Honduras Thailand 104 138 0 0 Iraq (Erbil) 30 3 Turkey 210 100 Malaysia Algeria Kenya Zambia South Africa Saudi Arabia Malawi Namibia Cote D’Ivoire Thailand Indonesia Russia India 252 18 6 34 19 13 71 46 34 51 127 163 18 0 3 1 0 0 13 0 0 0 0 37 0 0 Jordan*** China Thailand Sri Lanka Pakistan Russia India Ukraine Israel Beijing Guangzhou 200 5 50 50 50 150 5 300 45 20 15 200 5 0 1 0 0 0 0 5 10 15 Ukraine 121 0 Note: all numbers of cases for either on-going or future Q3 processing are estimates that reflect planned interviews. They are subject to change due to unanticipated events. Cases may include a principal applicant and accompanying family members. *Given security concerns in Nairobi, the team was diverted to Uganda prior to interviewing SAO cases on the schedule. ** The team diverted from Kenya traveled to Uganda to join a team already present there. *** USCIS planned to have a team in Jordan in Q3; however, the U.S. Embassy in Amman informed USCIS that there was an extremely high likelihood that the Q3 circuit ride would be curtailed after a few weeks as the Embassy would be deferring all non-essential details in mid-May due to security concerns. Instead of risking a possible curtailment of the Q3 circuit ride, USCIS shifted the team to Egypt, where there were cases ready for interview. The Egypt and Jordan cases scheduled have roughly equivalent percentages of SAO and non-SAO nationalities, so there was no appreciable difference in the number of SAO interviews conducted because of this change. Case 2:17-cv-00178-JLR Document 142-2 Filed 05/14/18 Page 7 of 12 Exhibit 2 SUMMARY OF 120-DAY AND 90-DAY REVIEW ENHANCEMENTS IMPLEMENTED PRIOR TO THIRD QUARTER FY2018 As a result of the 120-day and 90-day reviews, the following enhancements were implemented. The dates for implementation are in parentheses. • Application Process o Additional data are being collected from all applicants in order to enhance the effectiveness of biographic security checks. (October 23, 2017) o The electronic refugee case management system has been improved to better detect potential fraud by strengthening the ability to identify duplicate identities or documents. (October 23, 2017) • Interview and Adjudication Process o USCIS has established a program to “forward-deploy” USCIS Fraud Detection and National Security (FDNS) officers to work with interviewing officers on refugee processing trips abroad, known as circuit rides. The FDNS officers join certain circuit rides to support teams and work on fraud and national security cases on site. FDNS officers working at Headquarters also receive referrals from field officers to review cases where potential issues relating to fraud, national security, or public safety may be identified. (December 20, 2017) o New Guidance and Training: USCIS has strengthened its guidance on how to assess the credibility and admissibility of refugee applicants. Officers have also been given updated guidance on using discretion more broadly in their decision making and on additional indicators that might signal a national security issue requiring additional exploration. Officers also received updated guidance clarifying the roles and responsibilities of language interpreters to prevent improper interpretation that could impact the integrity of the adjudication. (October 23, 2017) o Finally, USCIS issued guidance addressing the importance of eliciting testimony from derivative refugee applicants. (March 23, 2018) o USCIS developed a practical, data-driven tool to assist officers interviewing Syrian refugee applicants by curating country of origin information electronically. (October 23, 2017) o Beginning FY18Q3, officers are provided additional time to interview refugee applicants subject to an SAO to allow for further exploration of potential national security, inadmissibility, and credibility issues at interview. (April 1, 2018) o The Department of State (DOS) and USCIS are exchanging more in-depth information to facilitate linking of related cases and to ensure fraud, national security concerns, and public safety concerns are taken into account for linked cases. (October 23, 2017) 1 Case 2:17-cv-00178-JLR Document 142-2 Filed 05/14/18 Page 8 of 12 • Systems Checks and other Vetting o Measures have been put in place to ensure that when USCIS or DOS receive updated key data points, the new information is provided to vetting partners for security checks. (October 23, 2017) o Departments and agencies have expanded the classes of refugee applicants from SAO countries who are subject to SAOs. (October 23, 2017) o FDNS expanded its “Enhanced Review” process for refugee applicants who meet SAO criteria. This includes checks against certain social media and classified databases. (October 23, 2017) Form I-730 Following-to-Join Refugee Beneficiaries Pursuant to the October 23, 2017, Memorandum to the President from the Secretary of State, the Acting Secretary of Homeland Security, and the Director of National Intelligence, titled “Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities,” USCIS and DOS have implemented the procedures below to more closely align protocols for security vetting of following-to-join refugee beneficiaries with those for principal refugee applicants. In order to operationalize these changes, on January 12, 2018, USCIS transitioned responsibility for domestic processing of refugee follow-to-join petitions from USCIS service centers to the International Operations Division. • Effective February 1, 2018, following-to-join refugee beneficiaries residing abroad receive the full baseline interagency checks that I-590 refugee applicants receive. • Following-to-join refugee beneficiaries are required to provide their I-590 applications earlier in the process to provide for more thorough screening prior to the adjudication of the petition. • Following-to-join refugee beneficiaries from SAO countries, or if stateless, who last resided in SAO countries, require enhanced FDNS review before approval. (February 2018) • SAO requirements for following-to-join refugee beneficiaries have been expanded in alignment with the expansion for I-590 refugee applicants. (February 2018) 2 Case Document 142-2 Filed 9 of 12 ?us, Department ofHomeland Security Washington. DC 20528 Exhibit 3 - Homeland Security January 29, 2018 MEMORANDUM TO: L. Francis Cissna Director US. Citizenship and 1m FROM: Kitstjen M. Nielsen Secretary Department 0 county SUBJECT: 90-Day Refugee Review (U) On October 24, 2017. the President issued Executive Order (EO) 13,815 allowing for the general resumption of the US. Refugee Admissions Program Simultaneously. Section 3. ?Addressing the Risks Presented by Certain Categories of Refugees." required that I determine within 90 days. as appropriate and consistent with applicable law, whether to modify or terminate any actions taken to address the security risks posed by refugee admissions. in consultation with the Secretary of State and the Director of National Intelligence. (U) As you know. in the ensuing 90 days. DHS Components. including the DHS Of?ce of Strategy. Policy, and Plans (PLCY) and .5. Citizenship and Immigration Services (USCIS). the Department of State (DOS). and our law enforcement and intelligence community partners conducted a review to assist me in determining which additional safeguards. if any, are necessary to ensure that the admission of nationals of. and certain stateless persons who last habitually resided in, 1 1 particular countriesl does not pose a threat to the security and welfare of the United States. The 90-day review included an in-depth threat assessment of each Security Advisory Opinion (SAO) country from the intelligence community, as well as a review of all relevant information related to ongoing or completed investigations involving refugees admitted to the United States. The review was conducted consistent with all judicial orders in effect. (U) Based on the results of the review and in consultation with my counterparts. I have made the following determinations:2 These 1 particular countries were previously identi?ed as posing a higher risk to the United States through their designation on the Security Advisory Opinion (SAO) list. The SAC list for refugee applicants was ?rst established following the September 1 l?I terrorist attacks and has evolved over the years through interagency consultations which include risk assessments and analysis from the intelligence and law enforcement communities. 3 (U) Any actions shall be undertaken consistent with the nationwide injunction issued by the United States District Court for the Western District of Washington. which prohibits the defendants from ?enforcing those provisions of the Agency Memo (Memorandum to Donald Trump. President of the United States. from the Secretary of State. the Acting Secretary of Homeland Security. and the Director of National Intelligence) that suspend or inhibit, including through the diversion of resources. the processing of refugee applications or the admission into the United States of Case Document 142-2 Filed 05/14/18 Page 10 of 12 l. (U) Additional screening and vetting actions are required for certain nationals of high- risk countries. 2. (U) The USRAP should continue to be administered in a risk-based manner. (U) The Refugee SAO list and selection criteria should be reviewed and updated. b) I. (U) Additional Screening and Vetting Actions (U) The Immigration and Nationality Act (INA) as amended provides that the Secretary of DHS "may, in the [Secretary?s] discretion. . .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.? Even if the applicant has demonstrated that he or she is statutorily eligible for refugee status. the ultimate decision on each application for refugee status by admission of each potential refugee at the port of entry by Customs and Border Protection? involves the exercise of discretion. As with all elements of the refugee adjudication. the burden of proof rests with the applicant to demonstrate that he or she merits admission as a refugee. As such. I am hereby directing that IS co-administer the USRAP with the Department of State?s Bureau of Population, Refugees, and Migration in a manner consistent with these determinations and DHS statutory authorities?and in consultation with the Attomey General and Director of National Intelligence. More specifically. I am instructing USC IS to implement certain screening and vetting enhancements to the USRAP to more effectively prevent fraud and to identify potential national security risks. criminals, and other nefarious actors.3 Prior to the start of FY2018 3'd quarter refugee processing. USCIS shall: . (U) Provide officers adjudicating refugee applications (?of?cers?) with additional training and guidance on national security indictors identi?ed as a result of the review. . (U) Provide for more in-depth refugee eligibility interviews. as well as additional time for officers to conduct interviews for certain nationals of SAD countries to allow for further exploration of potential national security, inadmissibility, and credibility issues at interview. . (UNFGUO) Issue guidance to its of?cers emphasizing the importance of eliciting testimony from derivative applicants, including certain RIB-3 applicants (unmarried, under 21. derivative children) apart from the principal refugee applicant (his or her parent) to further explore potential national security, identity. inadmissibility, and credibility issues. refugees from SAO countries." Doe. et al. v. Trump. et al.. No. l7-l78 Wash): Jewish Family Services, et v. Trump. et al., No. 17- I707 (W.D. Wash). In addition. any commitments made by the United States to implement the injunction will be honored. The court made clear. however. that this portion of the preliminary injunction only applies to the restrictions imposed by the prior Joint Memorandum with respect to refugees with a bona fide relationship to a person or entity within the United States. Additionally. the preliminary injunction does not apply to the defendants? ?efforts to conduct a detailed threat assessment for each SAO country" pursuant to the Joint Memorandum. 3 (U) These instructions are issued pursuant to 8 U.S.C. 103(a)(3) in order to carry out my statutory authorities relevant to the USRAP. including 8 U.S.C. llOl(a)(42). 157. and ll82(a)(2), (3). Where applicable and consistent with these authorities related to processing petitions for Form 1-730. Refugee/Asylee Relative Petitions ?led by refugees for following-to-join family members. USCIS will work with DOS to develop and implement processes to apply these enhancements to the processing of those petitions. Case Document 142-2 Filed 05/14/18 Page 11 of 12 . (U) lssue supplementary guidance and train of?cers on when it may be appropriate to deny refugee applicants as a matter of discretion based on the totality of the circumstances. 0 Work with DOS and relevant vetting partners to ensure relevant derogatory information is considered in the decision-making process, similar to the current Check procedure. . Ensure that any previously undisclosed wounds or injuries identi?ed by an lntemational Organization for Migration or other panel physician during an applicant?s medical examination will be documented on the appropriate DOS medical forms. DOS will then coordinate the reporting of the information to USC IS. 0 (U) Determine which SAO nationals who have already undergone a USCIS interview will require a re-interview in light of the modi?cations listed above. (U) In addition. I am directing USCIS to coordinate with USRAP program partners and vetting agencies to: Work with DHS PLCY, DOS. and relevant vetting partners to initiate a review of SAO adjudication thresholds and update them as appropriate to ensure they are in line with thresholds applied to other security checks, most notably the IAC. 0 (U UFGUQ) Identify whether there are additional indicators that would trigger a ?deep dive? review by vetting agencies. a (U) Continue ongoing discussions with the Of?ce of the United Nations High Commissioner for Refugees (UNHCR) to integrate biometrics collected by UNHCR into USRAP identity management for those cases referred by UNHC R. (U USC IS will interview and adjudicate cases of SAO nationals under these new procedures. The 90-day review of SAO countries. as provided in the Joint Memorandum. is no longer in effect by its terms. and the prioritization set forth in the Memorandum is not hereby renewed. As with other new screening and vetting enhancements implemented by the Department and interagency partners in the past. these modi?cations may lengthen processing times and will take time to implement, but I have determined that they are critical to strengthening the security and integrity of the USRAP and should be put in place as expeditiously as possible. H. (U) Risk-Based Approach to USRAP Administration (U) The aforementioned enhancements will improve the security of the US. homeland. It is also my judgment that the USRAP is not being administered in a suf?ciently risk-based manner informed by past experience or ongoing analysis of threats to US. interests. As such. USCIS should work with DOS to adopt a more risk-based approach to the USRAP when it develops the annual report to Congress on proposed refugee admissions for FY2019. The report should take into consideration national security risk as well as operational and resource realities when considering the overall refugee admissions ceiling, regional allocations. and the groups of refugee applicants that will be considered for resettlement next ?scal year. Case Document 142-2 Filed 05/14/18 Page 12 of 12 111. (U) Review of Refugee SAO List Finally. I have recommended to my interagency counterparts that DHS and DOS conduct a full review of the SAC list and, within six months. propose an updated SAO list as necessary based on broader public safety and national security considerations. including terrorism threats. transnational organized crime. and other relevant factors. I have also recommended that this list be reviewed, and updated. as appropriate. every six months thereafter to better inform screening and vetting policies and procedures based on any changes in risk factors and the overseas threat landscape. USCIS participation in these discussions will be critical. IV. (U) No Private Right of Action (U) In implementing this guidance. direct DHS Components to consult with legal counsel to ensure compliance with all applicable laws, including all judicial orders in effect. In addition, USCIS shall, through the Office of the General Counsel. ensure that the Department of Justice is informed of the measures described herein and the proposed timelines for implementation. (U) This document provides only internal DHS policy guidance, which may be modified, rescinded. or superseded at any time without notice. This guidance is not intended to. does not, and may not be relied upon to create any right or bene?t. substantive or procedural. enforceable at law by any party in any administrative, civil, or criminal matter. Likewise, no limitations are placed by this guidance on the otherwise lawful enforcement or litigation prerogatives of DHS.