Case 1:17-cv-00255-TSC Document 121 Filed 10/31/17 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
PARS EQUALITY CENTER, et al.,
)
)
Plaintiffs,
)
)
v.
)
Civil Action No. 1:17-cv-00255-TSC
)
DONALD J. TRUMP, in his official
)
capacity as President of the
)
United States, et al.,
)
)
Defendants.
)
____________________________________)
DEFENDANTS’ MEMORANDUM OF LAW IN RESPONSE TO
PLAINTIFFS’ SUPPLEMENTAL SUBMISSION

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TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................ ii
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 2
ARGUMENT .................................................................................................................................. 4
I.

Plaintiffs’ Claims Against the Refugee Policies Are Not Justiciable .................................. 4
A.

B.
II.

III.

Plaintiffs Lack Any Statutory or Constitutional Rights to Enforce ........................ 4
1.

Plaintiffs’ Statutory Claims Are Not Reviewable ....................................... 4

2.

Plaintiffs Lack Standing to Bring Constitutional Claims ........................... 6

Plaintiffs Otherwise Fail to Satisfy Article III Requirements ................................. 7

Plaintiffs’ Statutory Claim Is Meritless ............................................................................... 8
A.

The Plain Text and Statutory Structure Confirm that the Screening and
Admission of Refugees May Account for Nationality ............................................ 8

B.

The Refugee Program Has Long Made Nationality-Based Distinctions .............. 10

The Joint Memorandum Does Not Violate the Establishment or Equal Protection
Clauses .............................................................................................................................. 11
A.

The Joint Memorandum Is Valid Under Mandel .................................................. 11

B.

Plaintiffs’ Claims Fail Even Apart from the Mandel Standard ............................. 12

IV.

The Remaining Preliminary-Injunction Factors Foreclose Relief .................................... 13

V.

Any Injunction Must Be Appropriately Narrow and Limited ........................................... 15

CONCLUSION ............................................................................................................................. 15

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INTRODUCTION
Plaintiffs’ second amended complaint and motion for a preliminary injunction seek to
challenge the President’s Proclamation issued on September 24, 2017, which addresses the visa
application and adjudication processes. See ECF Nos. 106, 107.1 Last week, however, Plaintiffs
filed a “supplemental submission” asking this Court to also enjoin an entirely separate set of
Executive Branch actions regarding refugee applicants.

See ECF No. 117.2

As discussed

previously, Plaintiffs’ supplemental submission is procedurally improper, and should be rejected
on that basis alone. See ECF No. 118. Even were the Court inclined to consider Plaintiffs’
arguments, however, none would justify relief against the separate refugee-related policies.
First, Plaintiffs’ claims are not justiciable. Based on fundamental principles of nonreviewability, Plaintiffs cannot pursue their statutory claims. And the Plaintiffs who are aliens
outside the United States lack constitutional rights under the Establishment and Equal Protection
Clauses.

Furthermore, the individual and organizational plaintiffs otherwise fail to satisfy

Article III requirements.
Second, Plaintiffs’ statutory claim is meritless. The non-discrimination provision they rely
on is expressly limited to particular forms of assistance and services provided to refugees; the
provision has nothing to do with the screening and processing requirements for refugee applicants.
Indeed, admission and screening for the refugee program have long been administered using

1

See also Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for
Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, 82
Fed. Reg. 45,161 (Sept. 27, 2017).
2
See also Executive Order No. 13,815, Resuming the United States Refugee Admissions
Program With Enhanced Vetting Capabilities, 82 Fed. Reg. 50,055 (Oct. 27, 2017) (ECF No. 1173) [hereafter “Refugee Order”]; Joint Memorandum to the President from the Secretary of State,
Acting Secretary of Department of Homeland Security, and Director of National Intelligence,
Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities
(Oct. 23, 2017) (ECF No. 117-4) [hereafter “Joint Mem.”].
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nationality-based distinctions.
Third, Plaintiffs’ constitutional claims are again governed by, and fail under, Kleindienst v.
Mandel, 408 U.S. 753 (1972). The Joint Memorandum’s national-security foundation is plainly
“facially legitimate and bona fide.” Id. at 770. And because the operative policy here is the Joint
Memorandum, the relevant decisionmakers are the Secretaries of State and Homeland Security
and the Director of National Intelligence. Whatever animus Plaintiffs may allege as to other
policies, they have not alleged—much less demonstrated—that these decisionmakers were
motivated by animus in deciding to implement the Joint Memorandum.
Fourth and finally, Plaintiffs are again improperly asking this Court to enter relief on behalf
of refugees lacking any connections to the United States. See Order of July 19 (ECF No. 101)
at 3-4. This Court should thus reject Plaintiffs’ challenges to the refugee policies.
BACKGROUND
Section 6(a) of Executive Order No. 13,780 (EO-2) directed the Secretaries of State and
Homeland Security to suspend travel of refugees and decisions on refugee applications under the
U.S. Refugee Admissions Program (USRAP), pending a review of existing refugee procedures.
This suspension was necessary to allow the Secretaries, in consultation with the Director of
National Intelligence, to “determine what additional procedures should be used to ensure that
individuals seeking admission as refugees do not pose a threat to the security and welfare of the
United States.” EO-2 § 6(a). During this period, the relevant agencies identified multiple ways to
enhance the refugee vetting process, and began implementing those improvements.
Section 6(a) of EO-2 provided that, at the conclusion of this review period, refugee travel
and USRAP adjudications would resume for stateless persons and nationals of countries for which
the officials “determined that the additional procedures implemented . . . are adequate to ensure
the security and welfare of the United States.” On October 23, 2017, the officials advised the
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President, through a Joint Memorandum, that the improvements to the USRAP vetting process are
sufficient to allow the general resumption of that program, subject to certain conditions.
One of those conditions was that, in the officials’ judgment, a further review was needed
of eleven countries whose refugee applicants are currently subject to Security Advisory Opinions
(SAOs) because those countries were determined, as of 2015, to pose a higher national-security
risk to the United States. See Joint Mem. at 2; Joint Mem. Addendum at 3-4. During this review
period (scheduled to last 90 days), the agencies will “temporarily prioritize refugee applications
from other non-SAO countries,” for whom processing may not require as many resources. Joint
Mem. at 2; Joint Mem. Addendum at 3-4. Refugees from the eleven countries may still be
considered for admission on a case-by-case basis. Joint Mem. at 2; Joint Mem. Addendum at 3.
The Secretaries are implementing these measures pursuant to their own pre-existing statutory
authority. See Joint Mem. at 2.3
Following receipt of the Joint Memorandum, on October 24 the President issued Executive
Order No. 13,815 (the Refugee Order). The President acknowledged the officials’ determination
that the USRAP may resume and that they will apply “special measures” to certain categories of
refugee applicants, and therefore the worldwide suspension directed by EO-2 is no longer needed.
See Refugee Order §§ 2(a), (c). Going forward, the President directed the Secretaries of State and
Homeland Security to exercise their statutory authority to “continue to assess and address any risks
posed by particular refugees,” id. § 3(a), including by terminating actions taken to address these
risks when appropriate, id. § 3(a)(ii).
Plaintiffs have now filed a “supplemental submission” seeking to challenge the Refugee

3

The Joint Memorandum also describes additional security measures for derivative
refugees, i.e., family members who “follow-to-join” refugees already present in the United States.
See Joint Mem. at 2-3. Plaintiffs’ supplemental submission does not challenge those measures.
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Order and accompanying Joint Memorandum. See ECF No. 117. Plaintiffs assert that these
policies will harm three prospective refugees located abroad (Reza Zoghi, and Jane Does #8 and
#9), as well as the three organizational plaintiffs. See id. at 5-6.
ARGUMENT
Plaintiffs’ “supplemental submission” is procedurally improper and should be rejected on
that basis alone. As the Government previously argued, a court lacks jurisdiction to enter a
preliminary injunction based on policies not challenged in the complaint. See ECF No. 118 at 34. Moreover, Plaintiffs have failed to submit any declarations proving irreparable harm stemming
from these new refugee-related policies. See id. at 4. In effect, Plaintiffs are asking this Court to
assume irreparable harm based on declarations filed months ago in the context of challenges to an
entirely different policy. These procedural defects provide an independent basis for rejecting the
arguments set forth in Plaintiffs’ supplemental submission. Even if the Court were to consider
those arguments, however, they fail for the reasons set forth below.
I.

Plaintiffs’ Claims Against the Refugee Policies Are Not Justiciable
A.

Plaintiffs Lack Any Statutory or Constitutional Rights to Enforce

As discussed in the Government’s prior opposition, fundamental principles of nonreviewability foreclose statutory challenges to the denial of entry to an alien abroad. See ECF
No. 113 at 11-14. Those same principles preclude Plaintiffs’ statutory claim here. Moreover,
Plaintiffs lack standing to challenge the Joint Memorandum on constitutional grounds.
1.

Plaintiffs’ Statutory Claims Are Not Reviewable

a. The denial of entry to an alien abroad “is not subject to judicial review . . . unless
Congress says otherwise.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999).
That includes any claim Plaintiffs purport to bring under the Administrative Procedure Act (APA).
See id. at 1157-62; see also ECF No. 113 at 11-14. As with their challenges to the Proclamation,

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Plaintiffs have not identified any statutory authorization allowing them to bring their claim under
8 U.S.C. § 1522(a)(5).
b. Even apart from those principles of non-reviewability, Plaintiffs’ statutory claim would
not be justiciable. First, Plaintiffs have not identified an applicable cause of action. The text of
§ 1522(a)(5) states that assistance and services for refugees “shall be provided” without regard to
nationality. Such language does not demonstrate Congressional intent to confer an individual right
on refugees abroad to be free from nationality-based distinctions; certainly it does not impliedly
create a cause of action allowing refugees to bring suit against U.S. officials under the provision.
See Gonzaga Univ. v. Doe, 536 U.S. 273, 280 (2002); Cannon v. Univ. of Chicago, 441 U.S. 677,
690-91 (1979). Indeed, allowing suit would effectively construe § 1522(a)(5) as granting an
individual right extraterritorially to aliens abroad—contrary to the presumption of statutory
interpretation. See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993) (stating that “Acts
of Congress normally do not have extraterritorial application unless such an intent is clearly
manifested,” and concluding that such intent is lacking for a provision of the Refugee Act of 1980).
Similarly, none of the Plaintiffs here is within the zone of interests of § 1522(a)(5). As the
legislative history reflects, that provision is a directive to the Director of the Office of Refugee
Resettlement—not a grant of rights to prospective refugees. See H. Rep. No. 96-608, at 31 (1979)
(describing the provision as “requir[ing] the Director of the Office to . . . insure that assistance is
flexible and nondiscriminatory”); Alexander v. Sandoval, 532 U.S. 275, 289 (2001) (when a statute
is “phrased as a directive to federal agencies engaged in the distribution of public funds . . . there
is far less reason to infer a private remedy in favor of individual persons” (modifications omitted)).
As for the organizational Plaintiffs—whose only interests are promoting Iranian refugees’ wellbeing once they arrive in the United States, see ECF No. 117 at 6—they have no legally or

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judicially cognizable interests in the entry of particular refugees in the first place. See Haitian
Refugee Ctr. v. Gracey, 809 F.2d 794, 815 (D.C. Cir. 1987) (“[N]othing in the [Refugee] Act or its
legislative history indicates that the individual appellants’ interests in association with aliens comes
within the zones of interests to be protected or regulated.”); see also ECF No. 50 at 16-17.
Finally, to the extent Plaintiffs intend to rely on the APA, they cannot do so because they
are not challenging any final agency action. See 5 U.S.C. § 704. As the Joint Memorandum makes
clear, even refugee applicants from the SAO countries may still be interviewed and/or admitted
during the 90-day review period. See Joint Mem. at 2; Joint Mem. Addendum at 4. And the 90day review period is expressly temporary. Id. Thus, Plaintiffs have not identified any final agency
action allowing them to invoke the APA. See also Part I.B, infra. Moreover, the admission of
refugees is committed to agency discretion. See 5 U.S.C. § 701(a)(2); 8 U.S.C. § 1157(c)(1)
(stating that “the Attorney General may, in the Attorney General’s discretion and pursuant to such
regulations as the Attorney General may prescribe, admit any refugee” meeting certain
qualifications).4 Thus, an APA claim would be foreclosed even if one were otherwise available.
2.

Plaintiffs Lack Standing to Bring Constitutional Claims

Neither the individual plaintiffs nor the organizational plaintiffs have standing to assert
constitutional claims. First, as the Government has explained in prior filings, prospective refugees
abroad lack any constitutional rights whatsoever under the Establishment or Equal Protection
Clauses. See ECF No. 50 at 17-18; ECF No. 95 at 11-12. Indeed, the Supreme Court recently
confirmed that “[a]n unadmitted and nonresident alien has no constitutional right of entry to this
country.” Trump v. IRAP, 137 S. Ct. 2080, 2088 (2017) (per curiam) (quoting Mandel, 408 U.S.
at 762, modifications omitted). Thus, the three individual refugee applicants abroad lack standing
4

This authority is now exercised by the Secretary of Homeland Security. See 6 U.S.C.
§ 271(b)(3); Clark v. Martinez, 543 U.S. 371, 375 n.1 (2005).
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to pursue any constitutional claims.
As for the organizational plaintiffs, they lack standing because they are not asserting any
constitutional rights of their own.

The Refugee Order and Joint Memorandum cause no

discrimination against the organizations themselves. See Allen v. Wright, 468 U.S. 737, 755 (1984)
(“[T]he stigmatizing injury often caused by racial [or other invidious] discrimination . . . accords
a basis for standing only to ‘those persons who are personally denied equal treatment’ by the
challenged discriminatory conduct.”). And a perceived “message” of animus is also insufficient
to provide standing even to individuals, much less to organizations. See In re Navy Chaplaincy,
534 F.3d 756, 764 (D.C. Cir. 2008). Thus, the organizations lack standing because none of their
own constitutional rights has allegedly been violated.5
B.

Plaintiffs Otherwise Fail to Satisfy Article III Requirements

Plaintiffs’ claims are not justiciable for additional reasons. First, Plaintiffs’ claims are
premature. Even if one of the plaintiff refugee applicants was on the brink of traveling to the
United States, it is not clear that they would be prevented from doing so under the Joint
Memorandum, given its provision for case-by-case admission. See Joint Mem. at 2; Texas v.
United States, 523 U.S. 296, 300 (1998) (“A claim is not ripe for adjudication if it rests upon
‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’”).
Second, it is doubtful whether any of the plaintiff refugee applicants are, in fact, on the
brink of traveling to the United States. As explained in a prior filing, it appears that the applications
for Jane Does #8 and #9 are still at an early stage and have not meaningfully progressed since
December 2016. See ECF No. 95 at 12-13, 14 n.4. And for Reza Zoghi, Plaintiffs’ own statements
cast doubt on whether he is currently eligible to travel due to the potential expiration of his medical
5

To the extent the organizations claim third-party standing on behalf of refugee clients
abroad, that theory also fails because those clients have no first-party constitutional rights to assert.
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screening. See Zoghi Decl. (ECF No. 93-1) ¶ 14 (“On April 18, 2017, my wife, daughter, and I
successfully completed our medical screenings[.]”); Pls.’ Mem. (ECF No. 93) at 3 (“The medical
screenings are valid for six months.”). Given this record, it is at least speculative whether the 90day re-prioritization of resources would affect these plaintiffs’ refugee applications in any
meaningful way.
Third, the organizations also do not adequately demonstrate Article III injury-in-fact. Their
overall theory of standing is fundamentally flawed, as discussed in prior filings. See ECF No. 113
at 19-20; ECF No. 50 at 10-17. And even if the theory had merit, the factual record here fails to
support it as to these challenged policies—there is simply no evidence (or even an allegation)
establishing that the Joint Memorandum has caused any unique drain on the organizations’
resources or impediment to their missions beyond what has (allegedly) already occurred from other
policies. And any such consequences do not in any event give rise to a cognizable interest under
the INA’s refugee provisions. See Gracey, 809 F.2d at 815.
II.

Plaintiffs’ Statutory Claim Is Meritless
Plaintiffs argue that the Joint Memorandum violates 8 U.S.C. § 1522(a)(5), which prohibits

nationality-based discrimination in providing certain resettlement services to refugees. But
Plaintiffs’ argument is contrary to the plain text of § 1522(a)(5), the overall statutory structure, and
the refugee program’s implementation.
A.

The Plain Text and Statutory Structure Confirm that the Screening and
Admission of Refugees May Account for Nationality

Plaintiffs interpret § 1522(a)(5) as prohibiting nationality-based discrimination in “refugee
programs.” ECF No. 117 at 7. But the plain text of the provision is much narrower: it prohibits
nationality-based discrimination only for “[a]ssistance and services funded under this section.” 8
U.S.C. § 1522(a)(5). Thus, it prohibits discrimination in the provision of, inter alia, “orientation,

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instruction in English, and job training,” id. § 1522(b)(2); “medical screening and initial medical
treatment to refugees,” id. § 1522(b)(5); and “special educational services . . . to refugee children
in elementary and secondary schools,” id. § 1522(d)(1).
Critically, however, nothing in § 1522 extends to the types of decisions Plaintiffs challenge
here—the screening requirements and admission determinations for prospective refugee
applicants. Rather, those decisions are governed by a separate section, 8 U.S.C. § 1157(c)(1),
which grants the Secretary of Homeland Security the authority to admit refugees in his or her
discretion, and to prescribe regulations governing the admission of refugees. Pursuant to the plain
language of § 1522(a)(5), therefore, that provision does not extend to the refugee screening and
admission process governed by § 1157(c)(1).
The overall statutory structure confirms this interpretation.

Section 1522 governs

assistance provided by the Department of State and the Office of Refugee Resettlement, a
component of the Department of Health and Human Services (HHS). See 8 U.S.C. §§ 1521-22.
In contrast, § 1157 governs DHS’s screening and admission processes. It would make no sense to
extend the State and HHS non-discrimination provision from § 1522 to the separate DHS
authorities set forth in § 1157. See Sale, 509 U.S. at 171-73 (holding that a statutory provision in
the INA referring to a particular official “cannot reasonably be construed to describe” other
officials, and instead the provision “applies only” to the specified official).
Legislative history also bolsters this conclusion. Specifically, the focus of § 1522 is on
fulfilling the federal government’s “responsibility to assist States and local communities in
resettling . . . refugees—assisting them until they are self-supporting and contributing members of
their adopted communities.” S. Rep. No. 96-256, at 10 (1979); see also id. at 13 (“[A]dequate
federal support should be available to help all local communities integrate and assist refugees

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resettling in the United States.”). When enacting § 1522, Congress was plainly concerned about
discrimination in the provision of services to refugees already present or awaiting entry into the
United States, not the substantive screening standards for prospective refugees abroad.
B.

The Refugee Program Has Long Made Nationality-Based Distinctions

Plaintiffs’ argument—that the refugee program cannot consider nationality in its screening
and admission determinations—is contrary to longstanding practice under the USRAP.
First, the Government has consistently relied on nationality-based distinctions as part of its
refugee screening policies. As the Joint Memorandum explains, since the September 11th terrorist
attacks the Government has required SAOs for certain applicants of particular nationalities due to
elevated security risks. See Joint Mem. at 2. This list of SAO countries was last revised in 2015,
and currently contains eleven countries. See id. Under Plaintiffs’ reading of § 1522(a)(5), the
Government’s practice of requiring SAOs for applicants of particular nationalities—as it has done
for at least the past fifteen years—is unlawful.6
Apart from screening policies, the Government also routinely grants preferences on the
basis of nationality.

The refugee program employs a priority system to determine which

individuals are of special humanitarian concern for purposes of access to the refugee resettlement
program. The Government regularly relies on nationality to make priority designations, such as
when it created a program for at-risk children from certain Central American countries.7 Indeed,
6

The Government has applied additional scrutiny for certain nationalities in other
situations as well. For example, in 2007, the Government implemented an “enhanced background
and security check process” for Iraqi refugee applicants, which has been “enhanced periodically
over the last several years[.]” USCIS, Iraqi Refugee Processing Fact Sheet (June 6, 2013),
https://www.uscis.gov/humanitarian/refugees-asylum/refugees/iraqi-refugee-processing-factsheet.
7
See USCIS, In-Country Refugee/Parole Processing for Minors in Honduras, El Salvador
and Guatemala (Central American Minors – CAM) (Aug. 16, 2017), https://www.uscis.gov/CAM.

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a brief review of the Priority 2 and Priority 3 designations underscores the numerous ways in
which nationality is considered in refugee processing and admission determinations.8 Again,
accepting Plaintiffs’ interpretation of § 1522(a)(5) would invalidate all of these nationality-based
distinctions, contrary to the agencies’ longstanding implementation of the USRAP. In sum,
Plaintiffs’ argument is contrary to the text, structure, and history of § 1522(a)(5).
III.

The Joint Memorandum Does Not Violate the Establishment or Equal Protection
Clauses
A.

The Joint Memorandum Is Valid Under Mandel

Like their constitutional claims challenging the Proclamation, Plaintiffs’ constitutional
challenges to the Joint Memorandum should be reviewed (if at all) under the deferential standard
set forth in Mandel, 408 U.S. 753. See ECF No. 113 at 30. The Joint Memorandum easily satisfies
this standard because it provides “a facially legitimate and bona fide reason” for the decision by
the Secretaries of State and Homeland Security and the Director of National Intelligence to
“temporarily prioritize” refugee applications from non-SAO countries. Joint Mem. at 2.
As the Joint Memorandum explains, after reviewing the USRAP’s vetting procedures, the
Secretaries of State and Homeland Security and the Director of National Intelligence “continue to
have concerns” about the admission of refugees from SAO countries, which were “previously
identified as posing a higher risk to the United States.” Joint Mem. at 2. Accordingly, those
officials decided to “conduct a detailed threat analysis” of the SAO countries “to determine what
additional safeguards, if any, are necessary to ensure that the admission of refugees from these
countries of concern does not pose a threat to the security and welfare of the United States.” Id.
Plaintiffs assert that this review of SAO countries is unnecessary because refugees already

8

See Report to Congress from the President, Proposed Refugee Admissions for Fiscal Year
2018, at 10-11, 13 (2017), https://www.state.gov/documents/organization/274857.pdf.
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“go through extensive screening and vetting” and the Refugee Order states that the recent
“improvements to the USRAP vetting process are generally adequate to ensure the security and
welfare of the United States.” ECF No. 117 at 8. But Plaintiffs ignore that this finding of general
adequacy in refugee screening is “subject to . . . conditions,” including the condition that refugee
applications from SAO countries be temporarily de-prioritized while the agencies conduct the
necessary threat assessment of each SAO country. Joint Mem. at 2.
Moreover, under Mandel’s rational-basis test, it is not for Plaintiffs or the Court to secondguess the national-security determinations of these Executive Branch officials. See, e.g., Reno v.
Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999) (courts are generally “ill
equipped to determine the[] authenticity and utterly unable to assess the[] adequacy” of the
Executive’s “reasons for deeming nationals of a particular country a special threat”). Because the
Joint Memorandum provides a facially legitimate and bona fide reason for the officials’ decision
to temporarily prioritize refugee applications from non-SAO countries while undertaking a review
of the screening processes for SAO countries, Plaintiffs’ constitutional claims fail.
B.

Plaintiffs’ Claims Fail Even Apart from the Mandel Standard

Plaintiffs’ claims also fail without regard to Mandel because the Joint Memorandum is
valid under domestic Establishment Clause and equal protection precedent. See ECF No. 113
at 34-35. The Joint Memorandum does not refer to or draw any distinctions based on religion in
either its text or its operation. It temporarily prescribes different treatment for refugee applicants
based on their nationality (or, for stateless refugees, the country in which they last habitually
resided), not based on their religious beliefs. Moreover, the list of eleven current SAO countries
was not selected because of the religious beliefs of the countries’ nationals; rather, the countries
were identified in 2015 through interagency consultations as countries that “pose elevated potential
risks to national security.” Joint Mem. Addendum at 1; cf. Rajah v. Mukasey, 544 F.3d 427, 439
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(2d Cir. 2008) (holding that a program regulating aliens from certain countries survived rationalbasis review and was not motivated by an improper animus toward Muslims even though all of the
selected countries, except North Korea, were predominantly Muslim).
Plaintiffs argue that statements made by the President during his campaign and shortly after
he took office show that the Joint Memorandum was motivated by a religious purpose—i.e., to ban
Muslim refugees. See ECF No. 117 at 4. As set forth in prior filings, Plaintiffs are incorrect about
the import of those statements. See ECF No. 113 at 36-39. But in any event, the relevant decision
here is set forth in the Joint Memorandum, which was issued by the Secretaries of State and
Homeland Security and the Director of National Intelligence, not the President. As the relevant
decisionmakers, therefore, it is those officials’ purpose and intent that are relevant to the
Establishment Clause and equal protection analysis. See, e.g., Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 267 (1977) (examining the “decisionmaker’s purposes” in
assessing equal protection claim); Modrovich v. Allegheny Cnty., 385 F.3d 397, 411-12 (3d Cir.
2004) (concluding that “statements made by other County officials” who were not “the decisionmaker for the County with respect to the Plaque” were not relevant to the Establishment Clause
purpose analysis). Plaintiffs have not alleged, let alone demonstrated, that these officials were
motivated by a religious purpose or harbored anti-Muslim animus. Even apart from Mandel,
therefore, Plaintiffs cannot prevail on their religious discrimination claims.9
IV.

The Remaining Preliminary-Injunction Factors Foreclose Relief
As discussed in prior filings, the remaining preliminary-injunction factors also preclude
9

Plaintiffs also claim that the Joint Memorandum unlawfully discriminates on the basis of
nationality. See ECF No. 117 at 7. As the Government previously explained, however, nationality
distinctions are commonplace in the immigration field (including with respect to refugees, see
Part II.B, supra) and such distinctions must be upheld “[s]o long as [they] are not wholly
irrational.” Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979); see ECF No. 113 at 39-40.
The national-security judgments set forth in the Joint Memorandum easily satisfy this standard.
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relief. Allowing the Joint Memorandum to be implemented would not upset the status quo with
respect to Mr. Zoghi or Jane Does #8 and #9. See ECF No. 117 at 5. As prospective refugees
currently outside the United States, these individual plaintiffs have no judicially cognizable
interests under U.S. law. Moreover, they have already been or will be waiting months or years for
possible admission to the United States, and Plaintiffs have not demonstrated that an injunction
from this Court would bring them to the United States any sooner. In addition, even while the
temporary re-prioritization is in effect, refugee applications from SAO countries will still be
considered on a case-by-case basis. See Joint Mem. at 2. Indeed, following the Supreme Court’s
June 26, 2017 stay ruling, this Court concluded that it “ha[d] no authority to grant” an injunction
against enforcement of EO-2 on behalf of refugees lacking connections to the United States. ECF
No. 101 at 4. Yet that is exactly what Plaintiffs are again seeking here: an injunction against the
Executive Branch’s national-security determinations, to remedy purported harms suffered by three
individual refugee applicants abroad who appear to lack bona fide relationships with a U.S. person
or entity. See ECF No. 92-1 at 1.
On the other side of the scales, an injunction would cause direct, irreparable injury to the
Government and public interest. “[A]ny time a State is enjoined by a court from effectuating
statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland
v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers). A fortiori, the same principle
applies to a national-security judgment of the Secretaries of State and Homeland Security and the
Director of National Intelligence. Those officials have jointly determined that it is necessary to
“temporarily prioritize” refugee applications from non-SAO countries so that their agencies can
“conduct a detailed threat analysis and review” of SAO countries “to determine what additional
safeguards, if any, are necessary to ensure that the admission of refugees from these countries of

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concern does not pose a threat to the security and welfare of the United States.” Joint Mem. at 2.
Those officials’ “[p]redictive judgment[s]” on matters of national security are entitled to the
greatest possible deference, Dep’t of Navy v. Egan, 484 U.S. 518, 529 (1988), and the Court should
not second-guess their determination that “a preventive measure” in this area is necessary to
address a particular risk. Holder v. Humanitarian Law Project, 561 U.S. 1, 35 (2010).
V.

Any Injunction Must Be Appropriately Narrow and Limited
Even if some injunctive relief were appropriate (and it is not), the Court should reject

Plaintiffs’ request for a worldwide injunction against implementation of the Joint Memorandum
and the Refugee Order in their entirety.
First, any injunction should be limited to relieving the specific injury of only those
Plaintiffs whom the Court determines have a cognizable and meritorious claim as to specific
refugees abroad and who will suffer irreparable harm in the absence of an injunction. See ECF
No. 113 at 44-45. And the only refugees abroad who Plaintiffs even mention are Mr. Zoghi and
Jane Does #8 and #9. See ECF No. 117 at 5.
Second, the Court should not enjoin any portion of the Refugee Order. It is the Joint
Memorandum, not the Refugee Order, that imposes the temporary re-prioritization that Plaintiffs
challenge. Plaintiffs provide no basis for enjoining the Refugee Order itself.
Third, the Court should not enjoin the Joint Memorandum’s provisions regarding
“following-to-join” refugees. See Joint Mem. at 2-3. Plaintiffs’ supplemental memorandum does
not challenge (or even mention) these provisions, nor does it identify any Plaintiffs that are
allegedly affected by the “following-to-join” provisions. There is accordingly no basis for relief
as to those provisions.
CONCLUSION
The Court should reject Plaintiffs’ “supplemental” challenge to the refugee policies.
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Dated: October 31, 2017

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
JESSIE K. LIU
United States Attorney
JENNIFER D. RICKETTS
Director, Federal Programs Branch
JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Daniel Schwei
DANIEL SCHWEI (N.Y. Bar)
MICHELLE R. BENNETT (Co. Bar No. 37050)
KEVIN SNELL (N.Y. Bar)
JOSEPH C. DUGAN (Ohio Bar No. 0093997)
Senior Trial Counsel / Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave. NW
Washington DC 20530
Tel: (202) 305-8693
Fax: (202) 616-8470
E-mail: daniel.s.schwei@usdoj.gov

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