Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 1 of 83 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PARS EQUALITY CENTER, et al., . . Plaintiff, . . v. . . DONALD J. TRUMP, et al., . . Defendants. . . . . . . . . . . . . . . . . . CA No. 17-0255 (TSC) Washington, D.C. Thursday, November 2, 2017 9:30 a.m. PRELIMINARY INJUNCTION HEARING BEFORE THE HONORABLE TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE APPEARANCES: For the Plaintiffs: JOHN A. FREEDMAN, ESQ. R. STANTON JONES, ESQ. STEPHEN K. WIRTH, ESQ. Arnold & Porter Kaye Scholer LLP 601 Massachusetts Ave, NW Washington, DC 20001 (202) 942-5000 CYRUS MEHRI, ESQ. JOANNA K. WASIK, ESQ. U.W. CLEMON, ESQ. Mehri & Skalet, PLLC 1250 Connecticut Avenue, NW Suite 300 Washington, DC 20036 (202) 822-5100 JON M. GREENBAUM, ESQ. Lawyers' Committee for Civil Rights Under Law 1401 New York Avenue, NW Suite 400 Washington, DC 20005 (202) 662-8325 1 Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 2 of 83 For the Defendants: HASHIM M. MOOPPAN, ESQ. DANIEL S. G. SCHWEI, ESQ. MICHELLE R. BENNETT, ESQ. U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Ave, NW Room 7340 Washington, DC 20001 (202) 305-8693 Court Reporter: BRYAN A. WAYNE, RPR, CRR U.S. Courthouse, Room 4704-A 333 Constitution Avenue, NW Washington, DC 20001 (202) 354-3186 2 Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 3 of 83 1 P R O C E E D I N G S 2 THE DEPUTY CLERK: Your Honor, we have civil action 3 17-255, Pars Equality Center, et al., versus Donald J. Trump, 4 et al. 5 approach the lectern, identify yourself and those at your 6 respective tables, please. 7 3 I would ask that lead counsel from both tables please MR. FREEDMAN: Good morning, Your Honor. John 8 Freedman from Arnold & Porter Kaye Scholer for the plaintiffs. 9 With me at counsel table are my colleagues Stanton Jones and 10 Stephen Wirth, Cyrus Mehri and Joanna Wasik from the Mehri & 11 Skalet firm, U.W. Clemon -- are you with -- I'm not even sure 12 who you're with. 13 14 15 16 THE COURT: Well, I know who Judge Clemon is. (Laughter) MR. FREEDMAN: Jon Greenbaum from the Lawyers' Committee for Civil Rights. 17 THE COURT: 18 MR. FREEDMAN: 19 THE COURT: 20 Thank you. 22 THE COURT: 25 Good morning. this morning? MR. FREEDMAN: 24 Good morning. Who will be arguing for the plaintiffs 21 23 I expect we all know Judge Clemon. I will be doing most of it. All right. Thank you. Good morning. MR. MOOPPAN: Good morning, Your Honor. Hashim Mooppan from the Department of Justice for the federal And Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 4 of 83 1 defendants, and with me are Daniel Schwei and Michelle Bennett. 2 3 4 THE COURT: Good morning. Mr. Mooppan, I know you tried to enter your appearance last night. 5 MR. MOOPPAN: 6 THE COURT: 7 Hello again, Mr. Schwei. Yeah, I apologize. No problem. I tried to ECF it. And will you be arguing this morning? 8 MR. MOOPPAN: 9 THE COURT: I will. All right. Thank you. 10 All right. 11 were last before me. 12 clarified the case or simplified it. 13 Mr. Freedman. 14 Oh. Just a minute. There have been many developments since you all I can't say they have necessarily But -- I'll hear from you, Before we begin, the plaintiffs have filed -- and I'm 15 sorry; I should have taken care of this first. 16 plaintiffs filed a local Rule 65.1(c) request for permission to 17 file a declaration in support of its motion for a preliminary 18 injunction. 19 motion. I understand that the government opposes this Is that right, Mr. Mooppan? 20 MR. MOOPPAN: 21 THE COURT: 22 23 24 25 In Document 122, That's correct, Your Honor. All right. How much time do you need to get your opposition in? MR. MOOPPAN: I don't think we need any further response beyond what we listed in our opposition, Your Honor. THE COURT: All right. Just a moment. 4 Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 5 of 83 1 I'm going to grant the plaintiffs' motion. 5 I don't see how 2 defendants will be prejudiced from this by my considering the 3 additional declaration. 4 additional information that will assist the Court in making a 5 decision, then it is helpful. 6 request for permission to file a declaration. The declaration 7 is attached, so it will be filed. Thank you. 8 9 I'm sorry. And to the extent it provides the Court So I will grant the plaintiffs' All right. Now, Mr. Freedman, you can go ahead. MR. FREEDMAN: Thank you, Your Honor. I'm going to be 10 addressing the merits for the Pars plaintiffs. 11 the Court has questions about standing, Mr. Mehri will be 12 addressing those. 13 THE COURT: 14 MR. FREEDMAN: To the extent And I do. We've briefed the matter in detail. 15 I'm just going to focus on the most important issues. And I'm 16 going to start by answering the threshold question that you put 17 to me in April: 18 courts have entered injunctions against certain portions of the 19 September 24th proclamation? Why should this Court grant relief when other 20 We now have the benefit of experience, the Supreme Court 21 having taken this matter up once, so my answers are different 22 than they were in April. 23 they're better. 24 25 And I'm really, really hoping that So there are three reasons why it's critically important for this Court to enter an injunction, even with the injunctions Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 6 of 83 6 1 in place in Hawaii and Maryland. 2 in more detail, but just as an overview, first, those 3 injunctions don't prevent serious ongoing harm to my clients. 4 Only this Court can do that. 5 this Court exercising and maintaining jurisdiction over this 6 matter so that we have recourse if the government doesn't 7 comply. 8 9 10 And I'll cover each of these And my clients have an interest in Second, the other injunctions do not cover the government's actions in October. And third, it is in the public interest for reasons that I 11 will discuss for this Court to enter an injunction. 12 through each of those in turn. 13 Let me walk So we have clients who are experiencing real harm. My 14 clients have an interest in having their day in court and having 15 this Court enter an injunction and asserting a supervisory role 16 over this matter. 17 government is violating an injunction issued by another court, 18 my clients have no recourse, no ability or standing to be able 19 to go and seek enforcement. 20 From a practical standpoint, if the The government -- in addition to that, the government is 21 actively contesting the injunctions that are in place, and their 22 compliance with the prior injunctions, based on our experience 23 over the summer, has been lackluster. 24 25 Our clients have been irreparably harmed. And I'm not just talking about the harm that, given the nature of the violations Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 7 of 83 7 1 we're alleging, which include violations of the Constitution 2 that the D.C. Circuit and the Supreme Court have held should be 3 presumptively entailing irreparable harm -- 4 THE COURT: Let me interrupt you, I'm sorry. What is 5 the imminent harm to the plaintiffs with respect to Section 2, 6 given the current injunctions? 7 MR. FREEDMAN: There are two harms which I think have 8 been recognized by this court -- by other judges in this court. 9 The first is the uncertainty that it poses to the life 10 situations, the restructuring of their lives, the not knowing, 11 is the government going to continue to try to enforce this, how 12 can I structure my life? 13 Let me walk you through. The second is the harm from being 14 discriminated against, the government's animosity directed to 15 them because they're Iranian or because of their religion, 16 government-sanctioned discrimination, being treated 17 collectively, categorically, and having the government tar them 18 all as incipient terrorists. 19 injury. 20 That's a serious and irreparable Let me talk about the first harm. Given the government's 21 efforts to make the ban permanent, which is a difference from 22 last time, there's an injury that flows from the adjustments my 23 clients have to make to their lives, the uncertainty, the 24 inability to plan, the inability to answer basic life questions 25 that my clients have and that I and my colleagues can't answer. Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 8 of 83 1 THE COURT: 8 Well, let me ask you, Mr. Freedman, 2 isn't uncertainty and -- isn't that sort of inherent to the 3 immigration process? 4 is guaranteed a visa, no one is guaranteed entry into the 5 United States in the immigration process. 6 certain level of uncertainty, of waiting, that every applicant 7 for entry into this country has to go through. 8 correct? 9 I mean, even without this ban, no one MR. FREEDMAN: There's always a Yes, it is correct. Isn't that But this case is 10 about whether the process is fair or whether the government can 11 impose an unfair discriminatory process. 12 So turning back to my clients and the questions that 13 they're asking that are indicative of their harm -- so questions 14 like, will my wedding proceed? 15 Jane Doe No. 1 that she's been asking since late last fall when 16 her fiance was told that his visa would be approved. That's the question posed by 17 And we have two other clients with the same question. 18 Questions like, will my spouse be allowed to reside in the 19 United States? 20 a military veteran, served this country proudly in our military. 21 And it's a question asked by three of our other clients. 22 It's a question posed by Mr. Jahanfar who is Questions like, will my parents be allowed to meet their 23 grandchildren? Will my parents be able to see my home? Will I 24 ever be able to see my parents again? 25 by Jane Doe No. 4, who's an Iranian political asylee, can't That's the question posed Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 9 of 83 1 leave the country. 2 THE COURT: Let me ask you, Mr. Freedman, 3 Section 3(c)(iv)(D) of the proclamation provides for a waiver of 4 the entry restrictions if certain other considerations are met, 5 and -- and I quote -- "the foreign national seeks to enter the 6 United States to visit or reside with a close family member, 7 e.g., a spouse, child, or parent, who is a United States 8 citizen, lawful permanent resident, or alien lawfully admitted 9 on a valid, nonimmigrant visa, and the denial of entry would 10 cause the foreign national undue hardship." 11 12 How does that waiver not solve the dilemma your clients face? 13 MR. FREEDMAN: Let me -- we talked about this when I 14 was here in April. 15 executive order. 16 a very similar answer to what I told you in response to this 17 question in April. 18 The waiver process was a feature of the last This is not a new provision. I will give you The burdens that the waiver process creates require, if you 19 look at the overall waiver -- not just the examples -- but 20 require our individuals to show an undue hardship, that their 21 entry is in the national interest, whatever that means, and that 22 they pose no national security or public safety -- 23 24 25 THE COURT: The last being the most important. Correct? MR. FREEDMAN: But flipping the burden to require our 9 Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 10 of 83 10 1 clients to affirmatively show that. 2 burden. 3 What's the experience of waivers to date? 4 it seems like we have, ordinarily, a visa system, a refugee 5 admission system. 6 It's an insurmountable I mean, in many ways it seems like an illusory burden. They've got rules. We don't know. But They say, these are the criteria, these 7 are your procedural rights. Okay? It doesn't say you have to 8 get in, but it says you've got rights to be treated fairly. 9 this takes people based on their national origin, based on their And 10 nationality, it plucks them out into a separate system. 11 not an equal system. 12 system and it's predicated, as I will discuss, on animus, it's 13 inherently illegal and it's unconstitutional. 14 THE COURT: It's And because the system is an unequal Would your argument be different without 15 the backdrop of the statements that you argue -- from the 16 executive which you argue show an animus towards applicants who 17 are Muslim? 18 proclamation that said it is of concern to the United States 19 that this -- you know, a particular country has poor screening, 20 poor vetting, and it's not in the national interest to 21 continue -- we're going to treat them differently because we 22 believe this country poses a particular threat to the safety of 23 the United States without the statements that have proved 24 problematic in the past, would you agree that the United States 25 has a right to do that? If the United States -- if the executive issued a Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 11 of 83 1 MR. FREEDMAN: For the claims we are making, the 2 evidence of discrimination is important, so, yes, I do say 3 that -- does the government have -- in the abstract, in the 4 absence of these statements, does the government have the 5 ability to say we want to exclude a class of people in the 6 absence of proof of discrimination? 7 THE COURT: 11 Yes. So my question, then, is one -- and I'm 8 not the only judge to ask this, and I'm sure the government -- 9 I'm anticipating one of the government's arguments, which is, at 10 what point does, or does it ever, does the Court factor or stop 11 factoring in the statements made by the executive that form the 12 backdrop for the first injunction? 13 executive orders and proclamations going forward that involve 14 Iran, even though other countries have been removed and added to 15 the list of troublesome countries, let's just call it -- are the 16 rules changes with regard to Iran forever tainted by those 17 statements? 18 MR. FREEDMAN: In other words, do all So let me say two things in response to 19 that. One is when I actually start talking about the evidence, 20 I am going to focus on statements since the second -- 21 THE COURT: 22 MR. FREEDMAN: 23 litany that I repeated last time. 24 your patience last time with my litany. 25 THE COURT: All right. Okay? So I'm not going to repeat the I think I -- I think I tried I don't think you did, but that's fine. Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 12 of 83 1 MR. FREEDMAN: 12 I am not going to repeat everything. 2 am going to focus on the new stuff. 3 your question -- and you did ask me this last time -- I thought 4 my answer was pretty good, so I don't -- 5 6 THE COURT: But I think, with regard to Give it another try. (Laughter) 7 MR. FREEDMAN: So are we saying that they're forever 8 tainted? 9 walk through the statements since then, they keep saying -- the That is not our position. But as you will hear when I 10 President keeps saying, I want to go back to the first one. 11 said that three times, including as recently as six weeks ago: 12 I want to go back. 13 14 THE COURT: But he hasn't. He I mean, he has removed countries and added countries and -- 15 MR. FREEDMAN: But functionally, if you look at the 16 impact of this, it's still fundamentally a ban against Muslims 17 and the Iranian country. 18 dominated by majority Muslim countries. 19 issuances for the new countries added, nominal. 20 nine immigrant visas issued last year, seven immigrant visas 21 issues in 2015, one immigrant visa issued in 2014. 22 I The country list continues to be If you look at visa North Korea, The fact that they've added these countries -- oh, and 23 Venezuela? It's not Venezuelans. It's government officials 24 associated with five ministries, not even the entire government. 25 Very, very different from how they're treating the majority Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 13 of 83 1 2 Muslim countries on the list. So I think saying -- you know, the President -- I think the 3 point is, you know, could they break the taint? 4 break the chain? 5 want to go back; I want to do what I promised in my campaign. 6 That's what he's signaling to his supporters, that's what he 7 keeps saying. 8 know exactly what -- what I'm talking about. 9 13 Could they They could, but the President keeps saying, I I will walk you through this in detail so you The other thing that I would emphasize is the President has 10 never said he's breaking the chain. 11 not a Muslim ban. 12 notion of a Muslim ban; I made a mistake when I proposed one; 13 what we're doing here is something completely different; this is 14 entirely justified by national security; I apologize to everyone 15 for ever suggesting that we should have a Muslim ban. 16 17 18 He has never said, this is He's never stood up and said, I disavow the So let me just -- I want to, you know, just -- I want to go through the three kind of, I think, threshold -THE COURT: Well, while we're still on that topic -- 19 and I understand your point, and it's well taken, with regard to 20 really the practical effect of adding Venezuela and North Korea 21 in terms of how many visas we're talking about here. 22 But what about the fact that the proclamation was issued 23 following a worldwide review of foreign governments' 24 information-sharing practices and risk factors? 25 the fact that the Secretary of State engaged countries I mean, does Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 14 of 83 1 diplomatically prior to recommending the imposed entry 2 restrictions affect the plaintiffs' position on whether the 3 President had a discriminatory or religion-based intent. 4 MR. FREEDMAN: 14 So I think if we look at this under 5 the primary theories that we're looking at, is this still 6 discriminatory, the basic jurisprudence equal protection, 7 establishment clause, discrimination laws, as developed under 8 statutory theories, says you look at the impact, you look at the 9 intent, you look at the purpose. There's a basic concept in 10 anti-discrimination law called pretext. 11 process here? 12 Do we have a pretextual And you look at -- the case law as developed under the 13 equal protection clause, as developed under the establishment 14 clause, says you look at things like the history and the 15 sequence of events leading to it, and you look at statements -- 16 contemporaneous statements of purpose. 17 And you look at impact. And I think, with all of that, when I walk you through the 18 statements since then, there is no doubt that this is pretext. 19 They said earlier this year -- the President even said that he 20 was going to talk about nationalities rather than Muslims 21 because he was told not to. 22 beginning of this year said, that's exactly what the President 23 asked him to do. 24 25 And then Rudy Giuliani at the And you have Stephen Miller, political aide to the President, at the end of this process, whatever vetting or Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 15 of 83 15 1 involvement the State Department had and DHS had -- you have got 2 press reports that Stephen Miller came in and manipulated the 3 list. 4 So I think we've got more than enough evidence -- and I 5 will walk through the evidence of animus -- to establish 6 discriminatory purpose. 7 Let me just, if I can -- so just on -- on harm, the 8 questions I ran through before -- and there are more questions, 9 questions like, will I be able to accept or keep my job? Will I 10 be able to live free from persecution? 11 questions that our clients have been asking us, and they're 12 asked by people who have been injured in ways that go to the 13 essence of protected constitutional interests. 14 These are painful They're questions, frankly, that no one, certainly no one 15 who is in this country -- and most of our clients are in this 16 country -- they're questions that no one ought to have to ask. 17 And the injury flows from the arbitrariness of the government's 18 action. 19 this court have recognized and adjudicated when presented with 20 similar circumstances, and I will walk through one concrete 21 example for you. 22 It's an injury that other courts -- other judges on We think the evidence -- and I've alluded to this several 23 times -- the administration's actions and statements since it 24 took office, it's overwhelming that -- and it means that the 25 injury flows from discriminatory animus from the senior-most Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 16 of 83 1 2 16 officials of this administration. Without an injunction in place, I and my colleagues can't 3 answer these very real human questions from individuals whose 4 humanity has been effectively denied by our government. 5 Court has the power to do something about it. 6 This This Court can address the legality of the government's 7 discrimination. And by giving the Supreme Court alternative 8 legal bases -- and we're going to be encouraging the Court to 9 rule on alternative bases that have been ruled on by the other 10 court -- you can provide a measure of relief to my clients, the 11 assurance that animus, be it beyond repentant rhetoric coming 12 from the President's mouth, or be it camouflaged in pretextual 13 legalistic veneer, is unacceptable. 14 And with an injunction, I can answer the questions, and my 15 clients can come back if, as has happened before, the government 16 is recalcitrant and doesn't comply. 17 THE COURT: Here's the thing, Mr. Freedman. Your 18 statements regarding the power of this Court are fine, but the 19 Court doesn't have as much power as I think people think the 20 Court has. 21 and I don't think most courts, but this Court does not happily 22 wade into areas which concern disputes between the Executive 23 Branch and maybe the Legislative Branch. 24 immigration rules, the decisions as to who enters the borders 25 are a function that is left to the Executive Branch. And this Court doesn't happily wade into areas -- And the conduct of Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 17 of 83 17 1 And this Court is very leery, as I've told you before, 2 about getting into ordering people to be admitted, ordering 3 visas to be issued. 4 take on. 5 reminded of that in short order. 6 That really isn't a role I'm anxious to And it is one that -- if it's not mine, I will be So I'm not -- you know, I'm not looking to consider novel 7 theories or sort of take a flyer on claims that I don't think 8 are well grounded. 9 don't -- if there's nothing to rule on. 10 11 And my concern is that I don't rule if I That's really my concern. Let me ask you, while you're here -- 12 MR. FREEDMAN: 13 THE COURT: Do you want me to... Well, how do you square your due process 14 claims with the holding in Kerry v. Din that the denial of a 15 plaintiff's husband's visa application didn't deprive her of 16 life, liberty or property, for example? 17 18 MR. FREEDMAN: So I think our position -- well, do you want me to address the overall point? 19 THE COURT: Sure. 20 MR. FREEDMAN: I mean, I -- In whatever order you want. I think -- you know, I think I would 21 say two things. One is that we're just here on an injunction 22 and to try to get the Court to rule that the process for 23 adjudication for these decisions has to be fair. 24 we're not at the point where we're saying -- and our theory is 25 not that this Court should ever come in and invade and say you Okay? So Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 18 of 83 18 1 have to let this person in; you know, we've considered the 2 merits, we're going back over the record. 3 theory of the case. 4 That is not our It's that the process is fair. On the question about wading in -- the judiciary wading in 5 to a dispute between other branches, let me just remind the 6 Court what then Justice Ginsberg, when she sat on Court of 7 Appeals, said on a very similar issue from Abourezk -- I'm 8 sorry. 9 Just a second, Your Honor. What she said -- and this is 1986, Abourezk v. Reagan, 10 785 F.2d 1043: 11 extends only so far as the statutory authority conferred by 12 Congress and may not transgress constitutional limitations. 13 is the duty of the courts to say where those statutory and 14 constitutional boundaries lie. 15 Executive discretion is not boundless. It It Our contention here is that Congress has said, in two 16 different ways that are implicated by the government's action, 17 the government can't be implementing its visa program and its 18 refugee program on a discriminatory basis. 19 It's the court's -- what then Judge Ginsberg said is it's 20 the court's duty to decide where that line is. 21 dive into Kerry v. Din and our view on how the Court should 22 interpret it; I could also come back to that. 23 THE COURT: 24 MR. FREEDMAN: 25 I mean, I can You can come back to it. Okay. Thank you, Your Honor. I want to also, just on kind of the threshold question -- Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 19 of 83 19 1 so I'm now up to my second point -- that no other court has 2 enjoined the October actions. 3 THE COURT: The October actions -- And by October actions, you're referring 4 to the -- because, you know, we have a number of events. 5 have the State Department's memorandum. 6 the U.S. Refugee Admissions Program. 7 8 9 10 MR. FREEDMAN: THE COURT: And then we have... We have the President's executive order The executive order, right. After the proclamation. MR. FREEDMAN: 12 THE COURT: 14 We also have the USRAP, on the -- 11 13 So we Right. So we're talking about the executive order in October. MR. FREEDMAN: We're talking about the executive order 15 which incorporates by reference the Secretary of State's 16 memorandum from October 23rd. 17 THE COURT: Okay. 18 MR. FREEDMAN: So despite its camouflage, what -- and 19 it's a little complicated, and we try to explain it in our 20 supplemental pleading -- but it does precisely what the 21 President and his advisors promised to do during the campaign, 22 what the President said he was doing on January 27th right after 23 the first ban when he said that his priority in implementing the 24 ban was to change the situation that if you were Muslim, you 25 could come in, but if you were Christian, it was almost Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 20 of 83 1 2 20 impossible. So you look at the list of countries -- or you look at the 3 11 countries that are referred; there's no list, actually, in 4 the order, but the 11 countries that they're referring to, nine 5 of them, Iran and eight others, are majority Muslim. 6 imposes what's effectively -- the October actions impose what's 7 effectively a 90-day standstill, 90-day ban; we're going to pull 8 all the USCIS officers out, all the field officers out who would 9 be out interviewing those people, out vetting those people, out 10 processing their applications, and we're going to redeploy them 11 elsewhere in the world to help other people get in while we 12 figure out if additional screening is needed. 13 The ban Those nine countries in recent years have been responsible 14 for the lion's share of Muslim immigrants -- Muslim refugees 15 coming into this country. 16 Iraq, and Iran -- responsible for -- we quote the statistics in 17 our papers, but it's over 40 percent of total refugees, and a 18 large part of the Muslim refugees coming in. 19 The four largest -- Somalia, Syria, If history provides any guide, approximately half of those 20 individuals are going to have some connection with the 21 United States, some bona fide family connection with the 22 United States. 23 there's no reason to think that the 90-day standstill or 24 stand-down will be lifted after 90 days. 25 travel ban which started as a 90-day ban and morphed into a The administration's track record is such that We saw this with the Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 21 of 83 1 2 21 permanent ban. But 90 days, even if it is just 90 days, will make a huge 3 difference here. 4 refugee program, the U.S. Refugee Assistance Program, USRAP, to 5 the lowest level since it was established in 1980. 6 days, refugees from the majority Muslim countries will be at the 7 end of the line. 8 9 10 The administration has reduced the size of the And after 90 The practical impact is that refugees from majority Muslim countries will be shut out. THE COURT: What's your response to defendants' 11 argument that the Refugee Act does not prohibit 12 nationality-based discrimination in refugee programs, but 13 prohibits nationality-based discrimination only for assistances 14 and services funded under 18 [sic] U.S.C. ยง 1522? 15 MR. FREEDMAN: My response is they're wrong. 16 I think that they -- I mean, I would say two things. 17 is they talk about the plain language of the statute, but then 18 they only actually partially quote the statute in their brief. 19 They don't talk about the part that says assistance and services 20 shall be provided to refugees without regard to race -- 21 22 THE COURT: court reporter. You're going to have to slow down for my Whenever we read, we tend to -- 23 MR. FREEDMAN: 24 THE COURT: 25 (Laughter) One I'm better than I was in April. We all are. Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 22 of 83 1 MR. FREEDMAN: So the statute also talks about -- the 2 part that they don't quote in their brief is -- "assistance and 3 services shall be provided to refugees without regard to race, 4 religion, nationality, sex or political opinion." 5 They talk about legislative history, but omit a critical 6 portion of that history, pages 9 and 10 of their brief, that 7 reflects that it was Congress's intent in passing the Refugee 8 Act to codify legislation so that -- and I'm quoting from the 9 U.S. House report on this -- that U.S. statutory law clearly 10 11 reflects our legal obligations under international agreements. And the Supreme Court has held, similarly, that it is clear 12 from the legislative history that one of Congress's primary 13 purposes in enacting the Refugee Act was to bring the 14 United States refugee law into conformance with our 15 international obligations. 16 Cardoza-Fonseca, 480 U.S. 421, 1987. 17 That's a quote from INS v. The anti-discrimination language importantly tracks the 18 United States' obligation, as a signatory to the Refugee 19 Convention, which says the United States is to "treat refugees 20 without discrimination as to race, religion, or country of 21 origin." 22 That's a critical protection under the Convention to help 23 ensure that refugees are not going to be returned to their 24 country of origin where they may be persecuted. 25 22 Interpreting the Refugee Act in the manner the government Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 23 of 83 23 1 suggests is inconsistent both with what the statute actually 2 says and with the United States' obligations under international 3 treaties as well as Congress's intent to codify those 4 obligations. 5 It's also important to keep in mind -- and I think this is 6 the second point -- that front-end admission decisions 7 necessarily implicate the back-end programs that they're talking 8 about. 9 sending the most Muslim immigrants into this country, there will If, as it does, the ban covers the countries that are 10 necessarily be discrimination at the back end because there 11 won't be any Muslims to receive it. 12 The third point that I want to make, which is -- we're 13 still on the threshold question, but why it's in the public 14 interest for the Court to issue a decision. 15 some of these points before, but we didn't have a chance to 16 argue them. 17 The Supreme Court has held that parallel litigation is favored, 18 particularly in cases involving the government, because it gives 19 the Supreme Court the benefit of having had several courts of 20 appeal explore a difficult question before it decides. 21 And we did make This was in our supplemental briefing in April. And we saw that in the litigation over the last travel ban, 22 Travel Ban 2.0. The Hawaii court and the Maryland court each 23 entered an injunction. 24 infirmities with that order. 25 the injunction, it did so under the establishment clause. They did so citing different legal When the Fourth Circuit affirmed When Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 24 of 83 1 the Ninth Circuit affirmed that decision, it did so on a 2 statutory ground, under the -- 3 THE COURT: And yet the Supreme Court didn't seem to 4 appreciate the differing bases of the various circuits and 5 simply sent it right back. 6 7 8 MR. FREEDMAN: I think the D.C. Circuit's influence in this could be the critical difference. (Laughter) 9 MR. FREEDMAN: We are advancing different theories, 10 theories that play to the strength of this court, theories that 11 play to an area where this court is respected. 12 talking more at length about the equal protection claim and 13 about our APA theory, which is different than what the other 14 courts have relied on. 15 of Appeals have a reputation, a well-deserved reputation, for 16 being the experts in this country on APA law, and I do think 17 that -- 18 19 20 24 THE COURT: I'm going to be I do think that this court and the Court That comes as some surprise to this Court. But point taken. MR. FREEDMAN: I also think it bears emphasis that 21 there's no precedent that the entry of an injunction by another 22 court would require this Court to abstain. 23 Circuit nor the Supreme Court have ever held otherwise or have 24 suggested that abstention is appropriate. 25 and I will give you an example -- there are examples where Neither the D.C. To the contrary -- Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 25 of 83 1 courts have continued to hear cases even following the entry of 2 relief against the government. 3 Let me give you one concrete example. 25 Judge Kessler 4 decided a challenge to the Affordable Care Act following entry 5 of relief against the government by courts in Pensacola, 6 Florida, and Richmond, Virginia. 7 justiciable notwithstanding the pendency of seven other cases, 8 two of which ordered relief against the government, one of which 9 invalidated the entire Affordable Care Act. She found that the claim was 10 And she specifically found that plaintiffs could 11 demonstrate harm and actual and future injury because they 12 had to rearrange their lives -- and future injury -- due to the 13 uncertainty of future events. 14 766 F.Supp. 2d 16, 2011 decision. The case is Mead v. Holder, 15 And following her decision, another court, a court sitting 16 in Harrisburg, Pennsylvania, entered further relief against the 17 government. 18 Court can act; this Court should act. 19 20 That's Goudy-Bachman v. HHS. So the point is this I'm now going to turn, if it's okay, to the -THE COURT: Well, I do have a question as to the scope 21 of the remedy you seek with regard to Section 3(c) of the 22 proclamation, and I dont know if this is a good time for me to 23 get into that. 24 is contrary to the anti-discrimination provisions of the Refugee 25 Act, but you don't assert the same argument with respect to the But you argue that the October 23rd memorandum Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 26 of 83 26 1 October 24th executive order itself. 2 asking that this Court enjoin with respect to the October 24th 3 executive order? 4 MR. FREEDMAN: 5 THE COURT: 6 MR. FREEDMAN: So what exactly are you So we did put in a proposed order. I have the proposed order. Yeah, let me just refresh my 7 recollection as to what exactly we -- how we phrased this. So 8 the primary -- the relief that we're seeking is really discussed 9 in paragraphs 1(d) and 1(e) of the order. The first is an 10 injunction against enforcement of the October actions to deny, 11 revoke, delay, suspend, restrict, or cancel any refugee status 12 or refugee application processing, the key word I think in there 13 being "delay." 14 So right now, the way that these instruments -- the way 15 that the executive acted, there's a 90-day stand-down, 90-day 16 standstill, 90-day ban, whatever word you want to use -- 90 days 17 of delay that puts the refugees at the end of the line. 18 same way that we're asking the Court, and other courts have 19 enjoined previously the 90-day visa issuance ban, the delay 20 component of the October actions can similarly be enjoined. 21 The The second piece of this, paragraph (e), is the discussion 22 in the State Department memo about reallocating resources away 23 from the majority Muslim countries to other areas of the world, 24 deprioritizing Muslims, prioritizing other areas. 25 In practical effects, what happens is there are field Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 27 of 83 27 1 officers who are out doing a tour of refugee camps. 2 meet with them, they interview them, they go then to processing, 3 vetting, follow security protocols. 4 everybody from DHS, from the State Department who would be 5 involved in that -- involved in -- it's not Iran, in Turkey, 6 because that's where most of them are for Iran or Syria, in the 7 Kenyan camps for Somalians, and they're pulling them out and 8 saying, 90 days, we're not even going to interview you; we're 9 not going to do anything to move your application forward. 10 THE COURT: 11 MR. FREEDMAN: 12 13 tell, October 24th. And they And they're taking How much time is left on that 90 days? Well, it was effective, as far as I can So we're about a week into it. Let me -- I promised earlier that -- 14 THE COURT: So your request would be that the Court 15 enjoin that section that orders the movement or the reallocation 16 of resources? 17 MR. FREEDMAN: Yes. Unfortunately, the memorandum is 18 not structured in nice parts, but we've quoted the language that 19 I think gets to the issue. 20 So with regard to -- I promised earlier to talk about the 21 merits. I think, for efficiency's sake, it probably makes sense 22 for me to focus on the central theme that runs through each of 23 our principal claims, which is that the government conduct here 24 is motivated by animus, and when government action is motivated 25 by animus, it's illegal. That's a key contention of our equal Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 28 of 83 28 1 protection claim, of our establishment clause claim, and of our 2 APA claims. 3 the anti-discrimination provisions. 4 It's how we get the contrary to law provision under So I think it's fair to say the discriminatory impact of 5 the government's action can't be disputed. They're intended to 6 be discriminatory. 7 for both of them, the overwhelming majority of individuals 8 affected are from majority Muslim countries. 9 travel bans -- and we have some additional evidence of impact. Both the September and October actions -- After the prior 10 After the prior travel bans, visa approvals for Iranians and 11 nationals of the other listed countries plummeted. 12 And while the refugee ban was supposed to be implemented 13 across the board evenly, without respect to nationality -- no 14 refugees were supposed to come in -- the number of European 15 refugees continued unabated while Iranian and other refugee 16 admittances plummeted. 17 from the State Department statistics. 18 It's a very concerning question. It's Now, when we were here in April, I ran through the litany, 19 going back all the way through the campaign. 20 fun. It was a lot of I know you were tired of it, but -- 21 THE COURT: It's in the record now. 22 MR. FREEDMAN: It is in the record. I want to 23 emphasize, the reason I did that -- and I mentioned this 24 earlier -- both the equal protection clause and the 25 establishment clause precedent say that purpose is relevant and Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 29 of 83 1 that, in assessing purpose, the Court should consider things 2 like the historical background, the specific sequence of events 3 leading to the administrative action, the administrative 4 history, and contemporaneous statements by decision-makers. 5 29 Although I think, under that precedent, the Court can 6 fairly look at the past and could look at the campaign 7 statements, we don't need you to go back to the campaign for us 8 to win. 9 total and complete shutdown on Muslims entering the We don't need you to find that the President promised a 10 United States. That's what he promised. 11 make that finding. We don't need you to 12 Nor do we need you to take notice that the President's 13 campaign defended his proposed ban on certain Muslim refugees by 14 analogizing them to poisoned Skittles. 15 mention poisoned Skittles in your decision. You don't need to 16 It does bear emphasis, though, that since the inauguration, 17 the President, who is the decision-maker here and is the boss of 18 everybody else who we're suing, has made clear again and again 19 that the purpose behind these measures is to implement his 20 campaign promises of a Muslim ban. 21 I talked earlier about the President's admission that, when 22 he was told that he couldn't expressly ban Muslims, he came up 23 with a pretext: 24 about the admissions from Rudy Giuliani who helped him do that. 25 Let's talk nationalities. I talked earlier I do want to bring the Court current on statements since Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 30 of 83 1 the second executive order. 2 October 6th, the day he issued the second order, he sent a 3 fundraising e-mail to his campaign supporters noting that the 4 ban targeted nationals of Islamic countries. So with the Court's patience, on 5 Ten days later, in a speech in Nashville, he reiterated 6 that the second version of the order was just a watered-down 7 version of the first, and proposed -- the purpose remains to 8 target nationals of Islamic countries. 9 speech, We ought to go back to that first one and go all the 10 11 And he said during that way. June 5th, a series of tweets. The President says, What we 12 need is a travel ban. 13 with the original travel ban, not the watered-down politically 14 correct version. 15 tougher version. 16 The Justice Department should have stayed The Justice Department should seek a much In an August 17th tweet, the President said, We ought 17 to study what General Pershing to terrorists when caught, 18 referencing an apocryphal story involving a purported massacre 19 of Muslims. 20 30 THE COURT: Let me stop you, though. I mean, 21 notwithstanding those statements, the Justice Department has not 22 gone back to the first one. 23 doesn't appear that -- in other words, it appears that the 24 Justice Department has propounded what I assume they believe to 25 be a legal version of the travel ban. They have continued to -- it And shouldn't I take into Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 31 of 83 31 1 consideration the fact that they haven't responded to every 2 tweet or every speech, but have continued to what I think they 3 would argue is refine and comport with the law in the successive 4 orders and memorandum? 5 I mean, I don't dispute that the President has made these 6 statements, but does the fact that the travel bans don't 7 necessarily reflect what he's saying the Justice Department 8 should do, isn't that -- shouldn't they be given credit for 9 that? 10 MR. FREEDMAN: So I think the way to approach this is 11 looking at what the equal protection, establishment clause, and 12 anti-discrimination jurisprudence say, which is you look at the 13 face of it, but you also look at the purpose and you look at the 14 impact. 15 been walking through. 16 when we deal with discrimination. 17 The impact here is clear. The purpose is what I've It's a classic problem that we confront There are cases that we have where it's hard to prove, and 18 we rely on anecdotal evidence and we rely on statistical 19 studies, and there are cases that we have where we have to infer 20 it from the statements that what is going on is pretext. 21 the -- 22 THE COURT: Here, But wouldn't you be on stronger ground -- 23 and I don't mean to interrupt you, but I want to address your 24 point. 25 had said, for example, now this one, now this ban, this gets to Wouldn't you be in a stronger position if the President Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 32 of 83 1 32 what I really wanted -- what I've been promising to do? 2 MR. FREEDMAN: 3 THE COURT: 4 MR. FREEDMAN: No doubt, the smoking -- The fact that he's complaining about it -No doubt if I had a smoking gun 5 admission "I'm banning Muslims" that he says yesterday -- I 6 haven't kept up with last night's tweets but, you know, he's 7 said stuff that was close to that -- yes, no doubt we would have 8 it. 9 know, a good part of my career, I've never had that case. But as somebody who's done anti-discrimination law for, you I 10 would love to have that case. That case -- you know, I'm going 11 and I'm saying, like, you can't settle with me for enough money. 12 I also think it's fair to say, here, it's President Trump's 13 September proclamation, and it's his October executive order, 14 not DOJ's actions. 15 ultimately, it's the President's name, President's signature on 16 these documents. 17 So I'm sure that DOJ was consulted, but It's his intent that's relevant. Let me just, if I've answered -- 18 THE COURT: Yes. 19 MR. FREEDMAN: So just rolling forward, 20 September 15th, the President tweets again that, "The travel ban 21 into the United States should be larger, tougher, more 22 specific -- more specific, but stupidly, that would not be 23 politically correct!" 24 On October 19th, the President accused Iran of being a key 25 threat to international stability and promised to take decisive Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 33 of 83 33 1 action to confront its destructive actions. 2 later, we had the September proclamation permanently banning 3 visa issuances to Iranians and nationals of several other 4 countries that he mentioned in that speech. 5 And five days In the lead-up to the October actions, the President on 6 October 13th said that Iran was under the control of a fanatical 7 regime, and the citizens of Iran have paid a heavy price for 8 violence and extremism of their leaders, and he hoped the 9 Iranian government would re-evaluate its pursuit of terror at 10 the expense of its people, but until that day came, we will do 11 what we must to keep America safe. 12 THE COURT: I mean, the President is allowed in his 13 own fashion to make statements regarding foreign affairs. 14 the last two, for example, statements that you highlight concern 15 the President's feelings with regard to the Republic of Iran. 16 And I'm not sure that -- I mean, that's within the province of 17 the executive, to conduct foreign relations. 18 And I'm not sure how those -- for example, just those two last 19 statements strengthen your position if they apply, for one, only 20 to the Republic of Iran, and to the President's concern with the 21 way he believes Iran is conducting itself towards the 22 United States and towards its own people. 23 I mean, I don't necessarily see those last two statements 24 as supportive of an overall animus towards Muslims. I -- 25 probably I see them as indicating the President's concern to the Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 34 of 83 1 34 Republic of Iran. 2 MR. FREEDMAN: To be clear -- and I was not clear when 3 I said this -- the first speech did mention several of the other 4 countries that are impacted. 5 THE COURT: Yes. 6 MR. FREEDMAN: Fair enough. But I think that if you 7 look at the totality of statements, it's clear that there's a 8 picture being painted here that the President is seeking to take 9 measures that are targeted against Iranians based on animus and 10 11 targeted against Muslims based on animus. Let me give you another one. The day the proclamation is 12 signed -- this is not actually the President; this is the Vice 13 President, but this is the day -- it's actually the day the 14 State Department memo comes out: 15 a hydra with many heads.... 16 while" -- 17 THE COURT: 18 MR. FREEDMAN: 19 "Radical Islamic terrorism is This President will not sit idly by Slow down again. I'm sorry. "-- while the ayatollahs in Tehran plot more attacks.... 20 As the President often says, he has no higher priority than the 21 safety and security of the American people, and he [sic] will 22 fight tirelessly to defeat the specter of radical Islamic 23 terror." 24 And that's the day that they issue the memo. 25 We looked at the totality of what the President and his Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 35 of 83 1 advisors have said. 2 clear. 3 something I said earlier and something I said in April. 4 President has never disavowed any of this. 5 sorry, I made a mistake, I didn't mean to intend Muslims; I'm 6 now totally withdrawing from that. 7 Their tactics are clear. 35 They've said it over and over again. Their purpose is I will repeat The He's never said, So I can talk briefly about how that impacts our actual 8 claims, but that was -- that's the overview of the evidence 9 that -- 10 THE COURT: I have a procedural question for you. You 11 request an injunction enjoining the enforcement or 12 implementation of the September 24th proclamation, the 13 October 24th executive order, and the October 23rd memorandum. 14 The defendants argue that because you failed to request 15 leave to amend your complaint, that you shouldn't be allowed to 16 bring the claims against the October 24th executive order and 17 the October 23rd memorandum. 18 the Court should require plaintiffs to amend your complaint to 19 include the supplemental relief? 20 MR. FREEDMAN: What is your position on whether So we are operating under an emergency 21 motion. We acted expeditiously. We got some criticism from the 22 defendants the first time for taking too long to file our 23 complaint and lining up all of our declarations and filing our 24 PI. 25 why have you waited this long? I have my meet and confer correspondence where they said, Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 36 of 83 1 36 So being on file and knowing that we had something, we 2 thought that the -- I guess there are two things to say. 3 that we thought that the gist -- the thrust of what we were 4 saying was fairly captured in our complaint. 5 all listed there, same causes of action; 90 percent of the 6 litany I just read through is the same. 7 One is The parties were Secondly, what we have here is effectively -- it's not 8 Travel Ban 4.0. It's Travel Ban 3.1. It's something that was 9 consolidated in Travel Ban 2.0, and all that they've done is 10 split it into two documents. 11 litigation, the administration very well might take additional 12 measures, and we might need to come back and say, join this. 13 light of the tweets last night, I was expecting to wake up to a 14 new proclamation. 15 quickly on this. 16 And given that we're in emergency In And we very well might need to come back THE COURT: All right. I think -- I take the 17 defendants' point, but I also understand the exigencies that 18 we're facing regarding time. 19 require additional briefing on the supplemental relief you've 20 requested, but I am going to order you to amend your complaint 21 by the 8th. 22 MR. FREEDMAN: 23 THE COURT: And I will tell you that I don't Okay. But, again, I don't need supplemental 24 briefing. I just think it's important that we have -- that the 25 complaint and the relief requested be reflected in the most Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 37 of 83 1 current version of the complaint before the Court. 2 understand that things change almost daily with regard to the 3 issuance of orders and memorandums, but I think the defendant's 4 point is taken as to that procedural matter. 5 8 9 10 And I All right. 6 7 MR. FREEDMAN: Let me just cover quickly our primary claims. THE COURT: All right. Briefly, because I do have some questions regarding standing that I would like to... MR. FREEDMAN: So on our APA claim, we're advancing a 11 different statutory theory than has been held by the Hawaii or 12 Maryland courts. 13 are contrary to law within the meaning of the APA because the 14 actions require the defendant agencies to violate at least two 15 separate statutes mandating our immigration laws be implemented 16 in a nondiscriminatory way. 17 We are arguing that the government's actions That's Section 1152, which is the visa issuance provision, 18 that has been addressed in the -- it's been addressed in both 19 the Maryland and the Hawaii orders. 20 the Hawaii order. 21 37 THE COURT: It's the principal basis of What importance does the word "immigrant" 22 have in the language of Section 1152 of the INA which prohibits 23 discrimination in the issuance of an immigrant visa? 24 injunction based on Section 1152 only appropriate as to 25 applicants for immigrant as to opposed to nonimmigrant visas? Is an Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 38 of 83 38 1 And are there plaintiffs that you represent in this case seeking 2 immigrant visas who have standing to challenge a Section 1152 3 violation? 4 I realize that some of that might go to your colleague who 5 is addressing standing, but I'm curious as to whether you intend 6 to encompass both immigrant visa applicants and nonimmigrant 7 visa applicants. 8 9 10 MR. FREEDMAN: Sure. So half of our clients, individual clients, are effectively immigrant visas; half are nonimmigrant visas. 11 That's the easy answer to that question. On the statutory construction, courts have ruled different 12 ways. If you look at Judge Chuang's decision in Maryland and 13 the scope of the injunction he issued, he very much focused on 14 the issue of immigrant visas. 15 the Hawaii court, have said relying on precedent including -- 16 and I do not remember off the top of my head what the case is, 17 but relying on precedent -- 18 THE COURT: 19 MR. FREEDMAN: 20 THE COURT: 21 22 Other courts have said, including You have to slow down. And I'm not even reading now, so... Right. And Mr. Wayne is very good, but you are speaking rather quickly; you'll have to slow down. MR. FREEDMAN: Sure. So the Maryland court focused 23 on the immigrant -- language of the immigrant and entered an 24 injunction only effective as to the -- I believe his ruling was 25 focused on, for the 1152, the immigrant language. The Hawaii Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 39 of 83 39 1 court, citing precedent including precedent from this case, and 2 I do not remember off the top of my head -- from this court -- I 3 do not remember which decision it was -- found that immigrants 4 should be interpreted as including nonimmigrant visas. 5 obviously think that the Hawaii court is right on that, but 6 courts can see that issue different ways. 7 THE COURT: 8 MR. FREEDMAN: 9 We All right. I do want to say that I think that -- the principal argument that the government makes about this is 10 that all of this is trumped by Section 1182, which they contend 11 gives the government plenary authority as to admittance of 12 foreign nationals. 13 We think that Judge Watson and Judge Chuang fundamentally 14 reached the right result on that question, just applying basic 15 principles of statutory interpretation: 16 first? 17 consistent with what the D.C. Court of Appeals held in the Legal 18 Assistance for Vietnamese Asylum Seekers case. 19 flatly forbids nationality-based discrimination. 20 What statute came Is one more specific than the other? And that's Section 1152 But in addition to this, and I think this really goes to 21 the core of, like, why we think our approach to this is 22 different, Section 1152 and 1522 are anti-discrimination 23 provisions. 24 25 They say the government can't discriminate. It doesn't say the government can't distinguish or classify so long as those are made on a nondiscriminatory basis. It says Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 40 of 83 40 1 the government can't discriminate. 2 discriminatory. 3 brief, there's no evidence in those cases that they were 4 discriminatory or motivated by improper animus. 5 stark contrast to this situation where we've got lots and lots 6 of evidence of discriminatory animus. 7 Not every classification is And the precedents the government cites in its That stands in The evidence is certainly sufficient at this point to hold 8 that the conduct here violates the anti-discrimination provision 9 of the INA, and, for purposes of the APA, is contrary to law. 10 On our equal protection claim -- 11 THE COURT: 12 MR. FREEDMAN: 13 THE COURT: 14 MR. FREEDMAN: 15 THE COURT: 16 and then your reply. 17 We are -I will -- Wrap up briefly -I will wrap up after the -- -- on standing, and then the government, MR. FREEDMAN: Okay. So with regard to the equal 18 protection claim, it's clear that the orders were designed to 19 discriminate on the basis of national origin as a proxy for 20 religion. 21 clear from the way that they're designed, namely mostly majority 22 Muslim countries. 23 That's clear from the impact of the orders. It's Law says when you've got classifications based on national 24 origin or on discrimination, it's subject to strict scrutiny. 25 These actions by the government flunk strict scrutiny. But even Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 41 of 83 41 1 if the executive order was only subject to rational basis 2 review, lower level review, it would still fail. 3 I want to highlight a few points that we made in our briefs 4 that demonstrate this. 5 excluded because Iran is a state sponsor of terrorism. 6 exclude people, many of whom are fleeing that country based on 7 the actions of their government, makes no sense. 8 sense when you consider that there are approximately 1 million 9 Iranians in this country who pose no meaningful terrorism risk. 10 The government says that Iranians must But to It makes no And there's a disconnect, a fundamental disconnect, between 11 the administration's concerns about the Iranian government and 12 its decision to ban Iranians from immigrating into this country 13 or from visiting family members in the United States or coming 14 into this country as refugees. 15 That disconnect is evident when you consider the Department 16 of Homeland Security's February 2017 post hoc review that was 17 done following the January order which found that citizenship, 18 your national origin, was an unlikely indicator of a terrorism 19 threat. 20 you contrast how the administration deals with Venezuelans, 21 which the State Department also characterizes as a terrorist 22 safe haven. 23 And it's also -- the disconnect is also evident when When you contrast that, how Venezuelans are dealt with, 24 with how the majority Muslim countries are dealt with, 25 Venezuelan bar does not impact immigrant visas at all. It Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 42 of 83 1 limits the impact on non-immigrant visas to officials employed 2 by five government ministries. 3 still come in. 4 42 And Venezuelan refugees can Let me -- just a moment, please. 5 THE COURT: Since we're coming up on an hour, I'll let 6 you have some time to respond to the government's arguments and 7 include anything you wanted to include at this time that -- I'll 8 let you review your notes and you can come back at the time you 9 reply. 10 MR. FREEDMAN: 11 THE COURT: 12 13 Mr. Mehri. Thank you, Your Honor. Thank you, Mr. Freedman. As you no doubt could discern from my questions, I do have some -- 14 MR. MEHRI: Sure. 15 THE COURT: -- concerns about standing in this case. 16 MR. MEHRI: Good morning, Your Honor. 18 THE COURT: Good morning. 19 MR. MEHRI: Do you want to start with your questions 17 20 It's good to be back. or do you want me to -- 21 THE COURT: Yeah, I think it makes sense. How do the 22 organizational plaintiffs fit within the zone of interest in the 23 immigration statutes? 24 given -- all right. 25 Iranian -- In other words, I don't understand how -- Given that all the plaintiffs are Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 43 of 83 1 MR. MEHRI: Yes. 2 THE COURT: -- what standing do they have to request 3 the enjoining of the entirety of Section 2 of the proclamation, 4 and why should this Court enjoin anything other than 5 Section 2(b)? 6 MR. MEHRI: 43 Your Honor, the -- as we went through in 7 quite a bit of detail in April, the organizations stand before 8 you with Havens standing where they showed the frustration of 9 mission and diversion of resources. All it takes is one 10 plaintiff to have standing to address the proclamations that are 11 at issue here. 12 THE COURT: How do the refugee plaintiffs and the 13 organizational plaintiffs have standing to bring claims under 14 the equal protection clause with respect to the October 23rd 15 memorandum? 16 MR. MEHRI: Sure. Let me go through the different 17 ways that we have standing on the refugee issues that are in the 18 October proclamations and memoranda. 19 organizations, Pars Equality and IABA have been on the front 20 lines of trying to do legal services for refugees of Iranian 21 descent. First, as to the 22 THE COURT: And I recall the testimony that -- 23 MR. MEHRI: Yes. 24 quite a bit of detail for IABA. 25 connection and affinity on the refugee issues because they're And you saw Mr. Yousefzadeh go in Pars Equality has a particular Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 44 of 83 44 1 based in California, and they're helping people resettle and 2 transition to American life. 3 In our most recent set of declarations, the Pars Equality 4 declaration on paragraph 25 gives an example of how they're 5 helping a refugee constituent client who's already in the 6 United States with her daughter -- and the daughter's father is 7 a refugee in Turkey, trying to get here so they can reunite, and 8 due to what, as we've heard from my colleague, the unlawful 9 proclamations at the end of October, they're completely stymied. 10 11 12 The -- all the refugees are in a very urgent situation. that's one path on the standing issue. The second one -- and this relates to the declaration that 13 came in last night -- is Reza Zoghi. 14 dissident in Iran. 15 simple free speech, trying to be involved in a newspaper and 16 going to protests. 17 So He is a political He's been tortured, beaten, imprisoned for He's had to go through such extreme brutality. He and his 18 wife and three-year-old daughter have escaped Turkey. 19 gone through all of the process and were on the cusp of coming 20 to the United States when the proclamations in October came into 21 place. 22 They had They are -- have connections to the United States. There 23 are about nine official organizations, many religious-based 24 organizations, in the United States that are officially part of 25 the resettlement process, and one of them is the Lutheran Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 45 of 83 45 1 Ministries for Immigration of Refugees. 2 chapter has kind of sponsored him to come into the U.S. 3 they have an individual, a family in Minnesota, that is going to 4 help him transition, and that was the declaration that we 5 provided last night. 6 He has connections to both an entity and individuals in the U.S. 7 And the Minnesota And So they both have connections to the U.S. As you know, the standing principles are, first, there's 8 injury traceable to the conduct of the defendant, and 9 redressability. 10 Those are the three main principles. THE COURT: Let me ask you, on that, we have -- 11 Plaintiff John Doe No. 9 is a 2017 diversity visa applicant. 12 And I don't know if you know, but as -- 13 MR. MEHRI: Yes -- 14 THE COURT: -- I have a diversity visa case -- 15 MR. MEHRI: -- we know about that -- 16 THE COURT: -- imagine -- 17 MR. MEHRI: -- Your Honor. 18 THE COURT: So, you know, I'm actually versed in that 20 MR. MEHRI: Right. 21 THE COURT: -- quite a bit. 19 program -- But what concrete, 22 imminent injury has he experienced as a result of the 23 President's proclamation specifically? 24 25 MR. MEHRI: Okay. If you don't mind, Your Honor, I just want to double-check which plaintiff that is. Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 46 of 83 1 THE COURT: It's No. 9. 2 MR. MEHRI: Hold on a second. 3 (Counsel conferring.) 4 MR. MEHRI: Okay. 46 Your Honor, John Doe No. 9 was 5 initially impacted by Travel Ban 2, still has not made it into 6 the U.S. 7 diversity visa, there are very few spots that are open and that 8 now, you know, he's at the -- you know, like some of the 9 plaintiffs that were before you in that other case, kind of in 10 11 And as you noted in the litigation before you on the the back of the line -THE COURT: But how did the President's proclamation 12 specifically affect that plaintiff who may have some kind of 13 claim in another matter? 14 15 MR. MEHRI: Right. Your Honor, he falls under the immigrant visas, which are the September -- 16 THE COURT: Right. 17 MR. MEHRI: -- orders that we're addressing. And the 18 injuries that our clients have suffered, or are suffering, are 19 much more pronounced now than when before you in April when it 20 comes to the immigrant visas because it's a permanent ban. 21 so it's just disconnecting families, it's causing people that 22 have immigrated to the U.S., like Jane Doe 15, who works in an 23 elite biotech company, to consider leaving the country. 24 25 THE COURT: And But as to John Doe No. 9, the permanent ban, because he's a diversity visa applicant who, for want of a Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 47 of 83 47 1 better term, won the lottery, meaning he's being vetted, or was 2 being vetted, his situation is somewhat different. 3 correct? 4 5 MR. MEHRI: Is that not Well, I think the permanent ban would impact him as well because of the nation that he's leaving from. 6 THE COURT: My understanding is that diversity lottery 7 winners from the countries on the list were still being 8 processed but were being processed in a different manner. 9 there was -- the permanent ban -- I'm sure the government will And 10 explain that if I'm correct -- the permanent ban was not -- they 11 were definitely being slowed down in the processing because they 12 were being subject to much, much more scrutiny, and I think 13 there was -- you know, they had to show bona fide relationship 14 and so on. 15 But certainly I'll ask Mr. Mooppan when he comes up here if 16 that's correct. But I don't think the permanent ban applied to them. 17 MR. MEHRI: It's our understanding that it's applying. 18 THE COURT: All right. 19 MR. MEHRI: There are other questions you had? 20 THE COURT: No. You've answered my question. If 21 there were some points you wanted to make specifically that 22 weren't addressed in your brief, or if you'd like to reserve the 23 time, that would be fine as well. 24 MR. MEHRI: I'll reserve the time, Your Honor. 25 THE COURT: All right. Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 48 of 83 1 2 MR. MEHRI: 48 I just wanted to make sure we address all the questions you asked. 3 THE COURT: You did. Thank you, Mr. Mehri. 4 MR. MEHRI: Okay. 5 THE COURT: All right. 6 MR. MOOPPAN: Mr. Mooppan. May it please the Court. The 7 proclamation is fundamentally different than the prior entry 8 suspensions, both because of the multi-agency review and 9 recommendation process that preceded it, as well as because of 10 11 the substantive tailored restrictions that it imposes. In light of these critical features, the proclamation falls 12 well within the President's broad statutory and constitutional 13 authority to restrict the entry of aliens abroad for foreign 14 policy and national security reasons. 15 THE COURT: Let me stop you for a minute and just ask 16 you about standing, since Mr. Mehri was just up here, and you 17 can address it. 18 plaintiffs' claims are not reviewable because of the doctrine of 19 consular non-reviewability. 20 plaintiffs' relatives are denied both a visa and a waiver, they 21 can then sue and the court can consider their challenge. 22 you reconcile those two arguments? 23 On page 11 of your opposition, you argue that MR. MOOPPAN: But on page 18, you argue that once How do So there are two distinct points, 24 Your Honor. We think that consular nonreviewability and the 25 broader principles of nonreviewability do foreclose these Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 49 of 83 1 claims -- the statutory claims entirely and the constitutional 2 claims unless there is a U.S. person who has a cognizable 3 interest in their entry. 4 The point on page 18 is simply that if the Court disagrees 5 with that, at a minimum, they need to wait until someone has 6 actually been denied relief under the proclamation, and at that 7 point they would potentially have a ripe claim; it's an 8 additional ripeness point. 9 THE COURT: What's your argument or what's your 10 position on the reviewability of plaintiffs' claims? 11 saying that following denial of a visa or waiver, their claims 12 become ripe? 13 49 MR. MOOPPAN: So you're So they would have -- there's a serious 14 ripeness problem until someone is actually denied entry based on 15 the proclamation. 16 THE COURT: But, I mean, plaintiffs' argument is that 17 the delay because -- the delays because they're Muslim and the 18 delay in and of itself is a harm. 19 MR. MOOPPAN: I'm not sure what delay they're pointing 20 to, Your Honor. The process is going forward where visa 21 applications are considered, and if someone is ineligible for a 22 visa, they're denied on that basis. 23 for a waiver, and if they get a waiver, they get it; and if they 24 don't get a waiver, then they're denied. 25 pointed to any evidence that the waiver process is in and of And then they're considered But they haven't Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 50 of 83 1 2 50 itself delaying the visa adjudication process. THE COURT: Now, are the visa applications of 3 plaintiffs' relatives still being processed -- because it brings 4 me to your point. 5 entry ban is in place? 6 applications on hold as well? 7 Are they still being processed while the Or is the processing of their MR. MOOPPAN: My understanding is that, as with EO2, 8 the processing applies -- because if people are ineligible for 9 visas, they are denied on that basis. And we also have to go 10 through the waiver process under the proclamation. 11 processing the visas, and it's only if they are otherwise 12 eligible and denied a waiver that they would then be denied 13 under the proclamation. 14 happening because we've been subject to two nationwide 15 injunctions. 16 THE COURT: 17 MR. MOOPPAN: 18 THE COURT: But to be clear, none of this is Right. So the processing -- But that's what would have happened. All right. 19 hold; it's continuing? 20 MR. MOOPPAN: So we are So the processing isn't on Is that what you're saying? So right now it's certainly continuing, 21 because we're under two nationwide injunctions which we are 22 scrupulously complying with. 23 THE COURT: 24 MR. MOOPPAN: 25 Okay. But even if the injunctions had not been in place, that is how the process would have worked, as it had Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 51 of 83 1 51 worked under the second EO. 2 THE COURT: Plaintiffs assert that -- in response to 3 the memorandum and the proclamation, that consular resources are 4 actually being pulled out of majority Muslim countries on the 5 list and -- and taken to -- and moved to areas where there are 6 not majority Muslim populations. 7 MR. MOOPPAN: 8 Your Honor. 9 order that was -- I think that argument is entirely about the refugee 10 THE COURT: 11 MR. MOOPPAN: 12 Okay. -- in October. I don't think they're making that allegation with respect to -- 13 THE COURT: 14 MR. MOOPPAN: 15 These are two separate pieces, All right. -- the proclamation, which is the entry suspension for visas in September. 16 THE COURT: Okay. 17 MR. MOOPPAN: So let me just back up. I think there 18 are two reasons why this Court shouldn't even get into the 19 merits of these cases. 20 nationwide injunctions already and so, therefore, they can't 21 show irreparable harm. 22 issues. 23 injunctions and why that means that there's no irreparable harm. 24 25 The first is that there are two And the second is these reviewability Let me first start with the fact of the two nationwide As Your Honor noted last time around, they need to show irreparable harm in order to get an injunction. And given that Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 52 of 83 52 1 we are under two separate nationwide injunctions, they don't 2 face any imminent irreparable harm. 3 Today they've identified two reasons why they do. Their 4 first argument is there's uncertainty. 5 injunction isn't going to create any less -- any more certainty 6 than two injunctions. 7 enjoined in two places, we are not enforcing the proclamation, 8 and we are seeking appellate review. 9 less true if there's two injunctions or three injunctions. 10 THE COURT: But entering a third The fact of the matter is that we've been That will be no more or no Let me ask you about the supplemental 11 submission, because plaintiffs assert that the administration 12 recently -- and this goes to the refugee issue; I'm sorry if I'm 13 jumping around -- that it would admit only 45,000 refugees in 14 fiscal year 2018. 15 combined with the fact that Iranian refugees' applications are 16 going to be processed slower than other refugees, how does that 17 not result in irreparable harm? 18 So how does this fact, this announcement, MR. MOOPPAN: So to be clear, Your Honor, my argument 19 was about -- well, I was focusing on the proclamation first, 20 because we're not subject to any injunction on -- 21 THE COURT: 22 MR. MOOPPAN: 23 THE COURT: 24 MR. MOOPPAN: 25 Right. -- the refugees. I know I'm jumping around. So on the refugee piece, the key on irreparable harm is that is only a 90-day provision. They Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 53 of 83 1 haven't identified any individual refugee who is likely to be 2 affected by the refugee order. 3 refugees. 4 night, it actually hurts, not helps, their case. They've identified three If you look at the declaration they put in last 5 THE COURT: 6 MR. MOOPPAN: How so? Because they point out - that the 7 refugee in the case, his medical screening test lapsed in 8 October. 9 the refugee order now. 10 53 He's not eligible to travel here, wholly apart from And the other two refugees they've pointed to, as we point 11 out in our briefs, are very early in the process. 12 were to end up being deemed eligible for refugee status and able 13 to travel, that's not going to happen within the next 90 days. 14 Even if they So they haven't identified -- for irreparable harm, an 15 imminent irreparable harm for a preliminary injunction, they 16 haven't identified any refugee who's actually covered. 17 THE COURT: I'm jumping around again, and I apologize, 18 but I want to get these points addressed as I think of them 19 and as I've noted them. 20 previous nationwide injunctions have already enjoined 21 Section 2 of the proclamation. 22 Section 3(c) has been enjoined as well? 23 24 25 MR. MOOPPAN: You've pointed out correctly that the Is it your argument that I don't believe it has, Your Honor, but Section 3(c) is the waiver provision. THE COURT: Right. Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 54 of 83 1 MR. MOOPPAN: 54 I assume they don't want to enjoin the 2 waiver provision because that would make the provision broader, 3 not narrower. 4 THE COURT: Okay. 5 MR. MOOPPAN: I'm sorry. Continue on. So I think I've addressed one of their 6 two arguments for why there's still irreparable harm, this 7 uncertainty point. 8 they face irreparable harm from the proclamation, despite two 9 nationwide injunctions, is their inability to enforce in The other argument they made today for why 10 contempt if we were to violate the injunction. 11 respectfully submit that they have no evidence and no basis to 12 casually suggest that the government is going to violate two 13 injunctions. 14 And I would We've been under nationwide injunction under EO2. There's 15 been no allegation that we engaged in contempt. 16 plaintiffs they've had over the last months could have come in. 17 And if the presumption of regularity means anything, Your Honor, 18 it should mean that you shouldn't enter a third injunction based 19 on speculation that we might violate an injunction. 20 THE COURT: None of their Your point is taken with regard to that. 21 But how do I read -- and again, I'm jumping around. 22 suggest that I read the October 24th executive order in light of 23 the October 23rd memorandum? 24 October 24th executive order should not be enjoined. 25 MR. MOOPPAN: How do you In other words, you argue that the That's correct. Right? Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 55 of 83 1 2 3 THE COURT: 55 But why not if the October 23rd memorandum influenced or informed the October 24th executive order? MR. MOOPPAN: Well, again, like my answer on 4 Section 3(c), the proclamation, I assume they don't want 5 the 24th order enjoined because all that does is confirm that 6 the prior entry suspension for refugees is expired. 7 President's executive order, the 24th order, doesn't do anything 8 that hurts them. 9 but it -- there's just no way that they have irreparable injury 10 11 The I don't know why they would seek to enjoin it, from that document. The thing that they allege injures them is the memorandum. 12 It's not the order. 13 substantive provisions, the only thing it does is confirm that 14 the prior 120-day entry suspension for the refugee provision 15 under Section 6(a) of EO2 has indeed expired. 16 nothing to enjoin there or, if there was, it would hurt them 17 rather than help them to enjoin it. 18 THE COURT: Okay. All the order does, if you look at its So there's just What is -- I think I'm getting to most of 19 my questions. What's your justification for imposing 20 entry restrictions on almost all Iranians? 21 the protecting national security and enhancing the 22 United States' leverage with respect to foreign governments 23 argument as facially legitimate reasons for the proclamation, 24 does the proclamation need to apply to almost all Iranians to 25 achieve those goals? If I were to accept Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 56 of 83 1 MR. MOOPPAN: 56 That is the national security judgment 2 that the President made after consulting with his advisors. 3 is, for what it's worth, the same exact judgment that President 4 Carter made during the Iranian hostage crisis. 5 THE COURT: It But President Carter hadn't made 6 statements prior to his decision regarding banning Muslims. 7 it's not -- I mean, and Iran, while the plaintiffs here are from 8 Iran, we're talking about a list of 11 countries in which the 9 vast majority -- the effect of which would be felt most keenly 10 11 and most predominantly in Muslim countries. MR. MOOPPAN: Let me make two points about that, 12 Your Honor. 13 relevant to their constitutional claims. 14 to their statutory claim as to whether this is nationality 15 discrimination under 1152. 16 And The past statements and all of that at most is It cannot be relevant So the fact that they conceded in response to your question 17 of, if there had been no statements and there was some foreign 18 policy concern and the President banned entry of all nationals 19 of a certain country, would that be permissible? 20 yes, as he has to unless he's going to say that President 21 Carter's proclamation banning all Iranians was invalid. 22 means that they have conceded their case on the 1152. 23 24 25 THE COURT: And he said That I don't think they're going to agree with you on that one. MR. MOOPPAN: Well, they might not agree, but they're Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 57 of 83 57 1 wrong because if, for example -- and the D.C. Circuit held in 2 the Narenji case that it was permissible for President Carter to 3 impose blanket restrictions on Iranian entry even though no one 4 was arguing that the individual Iranians presented a threat. 5 was a permissible exercise of foreign policy to restrict the 6 entry of the nationals to impose pressure and influence on the 7 government. 8 9 There is just no textural hook within 1152. If you read the language of 1152, there is just no hook for it. Their only 10 suggestion is that it says the word "discriminate," and so 11 somehow you have to look at the underlying motive. 12 not what the word "discriminate" means. 13 It But that's If, for example, someone says, I'm going to treat black 14 people differently than white people, not because I don't like 15 white people, but because I like black people, that is still 16 discrimination within the statute. 17 motive. 18 you're talking about actual immigrant visas, if they drew lines 19 based on certain countries versus other countries, that would be 20 discrimination on the basis of nationality for an immigrant 21 visa. They're focusing on the But the word "discriminate" under 1152 surely, if 22 THE COURT: But isn't your argument assuming a certain 23 vacuum that doesn't exist here? 24 assuming that we don't have the background that led up to these 25 orders and proclamations. I mean, your argument is Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 58 of 83 1 MR. MOOPPAN: 58 Again, I'm happy to address that, but 2 it is only relevant to the constitutional claims. 3 relevant to the -- and the reason is because it's relevant to 4 purpose. 5 that there cannot be discrimination on the basis of nationality 6 with respect to the issuance of immigrant visas. 7 It cannot be But 1152 doesn't say anything about purpose. It says And drawing lines between some countries and others, it 8 either is discrimination or it isn't discrimination. 9 turn on what the motive is. It doesn't And they've conceded, as they must, 10 that things like the Iranian hostage crisis proclamation was not 11 illegal, and Narenji actually held that that was a permissible 12 thing. 13 general. 14 It wasn't with respect to 1152 per se, but it was in Let me turn to the purpose argument, because you asked 15 about it twice. 16 is that you have to focus on both the process and the substance 17 of the proclamation. 18 I think what's very important here, Your Honor, So let me first start on the process. This proclamation is 19 the culmination of a worldwide review by multiple agencies that 20 investigated whether there were information sharing problems or 21 other risk factors. 22 matters, they then reviewed nearly 200 countries, identified 23 countries that were problematic, then engaged in a lengthy 24 engagement process with them diplomatically. 25 Having determined a new baseline for what After all of that, the Department of Homeland Security made Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 59 of 83 59 1 recommendations to the President about which countries were 2 inadequate under -- with respect to those criteria, and proposed 3 certain restrictions. 4 those recommendations and consulting further with his advisors, 5 then imposed these restrictions. 6 Having -- the President, considering Their suggestion that this is all a pretext is a remarkable 7 thing for them to assert, and it would be even more remarkable 8 for this Court to so blithely say that the Secretary of Homeland 9 Security, the Secretary of State, all of the members of their 10 department are all engaged in a massive charade. 11 have a shred of evidence that the Secretary of State or the 12 Department of Homeland Security has any bias, has ever harbored 13 any bias, is engaged in some sort of pretextual inquiry. 14 They don't It's remarkable that they feel so comfortable casually 15 impugning the integrity of so many people, both cabinet 16 secretaries and bureaucracies. 17 carefully before it levels such a serious charge. 18 process part. 19 But this Court should think very So that's the And if you look at what the proclamation actually does, it 20 tracks the recommendations for the country exactly. The 21 Secretary of Homeland Security recommended eight countries, and 22 it's those eight countries that the President selected. 23 let's think about those eight countries. 24 countries, they recommended dropping certain countries that have 25 been covered by the prior order. Now, Of those eight They dropped Sudan. They Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 60 of 83 1 dropped Iraq. 2 They added non-Muslim countries. 3 added Venezuela. 4 5 60 They added countries that -- Muslim countries. THE COURT: They added North Korea. They The practical effect of which, though, it's not very many visas we're talking about. 6 MR. MOOPPAN: That is true, but it shows that they 7 were acting neutrally based on criteria. 8 they don't have a lot of entry doesn't -- it certainly doesn't 9 hurt us, and I think it pretty clearly helps us because it shows 10 that they are applying neutral criteria and applying them across 11 the board. 12 13 14 But let me go further. Right? The fact that Even with respect to the Muslim countries that they did cover, they have exemptions. So, for example, Iran. Right? They exempted student and exchange 15 visas, which is more than 10 percent of the visas from Iran. 16 For countries like Libya and Yemen and Chad, they exempted 17 virtually all nonimmigrant visas except for business and tourist 18 visas. 19 the visas at issue. 20 For some of those countries, that's up to 30 percent of None of that makes any sense if this is some sort of 21 pretextual Muslim ban. 22 ban, would drop Muslim countries, add non-Muslim countries, and 23 create exemptions within the Muslim countries that were covered? 24 It simply doesn't make any sense. 25 Who, if they were trying to do a Muslim What does make sense is that the proclamation is exactly Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 61 of 83 61 1 what it says it is. 2 agencies whose integrity has never been questioned, whose motive 3 has never been questioned, who engaged in a worldwide review of 4 national security concerns and foreign policy concerns, and 5 based on that review, made recommendations to the President, 6 who, after considering those recommendations and consulting 7 further with his advisors, adopted a tailored process to deal 8 with real foreign policy concerns. 9 THE COURT: It is the result of recommendations from How do you respond to plaintiffs' 10 arguments that the President's own statements since that time 11 undercut your argument with regard to the purpose of these 12 amendments and proclamations -- orders and proclamations? 13 MR. MOOPPAN: So a few points. The first is the point 14 that you made, Your Honor, that the order doesn't go back even 15 to EO1, let alone to something before EO1, but the other point I 16 would make is, if you look carefully at the differences between 17 EO1 and this, they're primarily differences about people who 18 have connections to this country. 19 whether LPRs were covered before. 20 EO1 was never a Muslim ban. It's things like, arguably, And the reason the Washington 21 court struck it down was because of due process concerns for 22 people who had sufficient connections to the country. 23 the proclamation avoided that due process issue by exempting 24 anyone who did have connections to the country. 25 people like LPRs. EO2 and It exempted Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 62 of 83 1 So even if you were to consider the President's statement, 2 which we don't think would be appropriate, it still doesn't get 3 you to any sort of Muslim ban. 4 THE COURT: 5 MR. MOOPPAN: 6 It -- sorry. You have to slow down. Sorry. I'm from New York also. It at most gets you to the notion of how many people from 7 these countries are covered -- or with connections with these 8 count countries are covered, but it doesn't possibly explain 9 why they have dropped other countries and have added other 10 countries. 11 ban. 12 62 It can't get you to this being a disguised Muslim And most importantly, it can't get you to how do you 13 explain the fact that this was the result of recommendations 14 from multiple agencies, none of whom -- they don't have a single 15 statement from the Secretary of Homeland Security or the 16 Secretary of State or anyone within those agencies saying 17 anything about Muslim bans. 18 THE COURT: At least to the proclamation as a 19 statement from the President. 20 statements. 21 MR. MOOPPAN: So they do have the President's That's true, but again, the 22 recommendation for the countries are the exact same countries. 23 Right? 24 honest advice of the Secretary of Homeland Security and the 25 Secretary of State that these countries present problems and So unless their position is, despite the good-faith, Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 63 of 83 1 these restrictions are necessary to solve those problems, the 2 President is disabled from considering that because of other 3 statements he's made -- that would be a remarkable thing for 4 this Court to say. 5 63 There's not a single case that has ever said that, in the 6 establishment clause context or any other, that the President of 7 the United States is disabled from considering foreign policy, 8 national security judgments that cabinet secretaries have 9 advised him on. 10 THE COURT: I don't think that's the plaintiffs' 11 position. 12 characterize it. 13 can certainly and have certainly stated it -- but as I 14 understand it, is that the President's statements inform the 15 intent of these proclamations and orders. 16 But I understand that is how the defense wants to I think the plaintiffs' position -- and they MR. MOOPPAN: But it can't inform the intent of the 17 recommendations from the Secretary of Homeland Security and the 18 Secretary of State. 19 recommendations saying that there are real problems and the 20 entry restrictions are part of the way to solve them. 21 have to say that the President can't consider that. 22 serious -- 23 THE COURT: 24 saying. 25 you a hypothetical. So the recommendations are good-faith So they Those Again, I don't think that's what they're I mean, in other words -- for example -- let me give An executive could -- President could say. Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 64 of 83 1 I want to ban this protected category of people. 2 tell me how I can do that and not get -- and not be on shaky 3 constitutional or otherwise grounds. Government, 4 And they can get recommendations from agencies and 5 organizations and issue a law based on those recommendations. 6 64 But are you saying that I can't consider the fact that the 7 executive indicated a desire to ban a certain protected group in 8 assessing whether that proclamation or order is legal? 9 MR. MOOPPAN: I'm saying that this case is very 10 different from that hypothetical for the following reason. 11 Executive order 2 -- EO2 doesn't tell the Department of Homeland 12 Security and the Secretary of State to go find me a way to get 13 at these Muslim countries. 14 What it says is, I want you to investigate whether there 15 are information-sharing problems worldwide. 16 investigate that and then provide me recommendations about what 17 countries, if any, are problematic and what restrictions you 18 recommend. 19 I want you to There is not some sort of preordained go get me these 20 people by hook or by crook. That is just not what EO2 says. 21 So you would have to either say that there was some secret 22 back-room deal between the President and cabinet agencies or 23 that the cabinet agencies didn't do what they were told to do 24 by the EO and are acting in bad faith. 25 evidence of any of that. And again, there is no Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 65 of 83 1 65 To impugn the integrity of multiple cabinet secretaries 2 and their departments who engaged in a month-long worldwide 3 review -- worldwide review that bore fruit -- as the 4 proclamation talks about, during the engagement process, 5 numerous countries improved their information sharing in 6 response to this. 7 To say that this is all some charade to get to some 8 preordained end result is just not borne out by the fact, and 9 it's not something that this Court should lightly say. They 10 just don't have evidence of it. 11 want to point to from the President can't be enough to impugn 12 this entire process, and it's inconsistent with the substantive 13 restrictions for the reasons we've talked about earlier. 14 THE COURT: 15 MR. MOOPPAN: And whatever statements they All right. So if I could take a step back, though, 16 because I would like to talk a little bit more about the 17 justiciability issue. 18 THE COURT: All right. How much more time do you 19 think you'll need? 20 Mr. Freedman speak for an hour, so I'm not just trying to limit 21 you. 22 23 24 25 Not that I'm limiting you. I certainly let Just for my court reporter's -MR. MOOPPAN: Your Honor. I don't think I need very much longer, I think I've hit the main points on... THE COURT: All right. Mr. Wayne? Since we're going to have to come back with a Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 66 of 83 1 response, let's take a break now, and then we'll wrap up the 2 whole thing. 3 All right. Thank you. (Recess from 11:02 a.m. to 11:17 a.m.) 4 MR. MOOPPAN: 5 THE COURT: 6 MR. MOOPPAN: 7 11:10. I'll try to keep it brief, but -- That's all right. -- a few additional points. First, to take a step back on justiciability, the one thing 8 I do agree with counsel on is the fact that we're within the 9 D.C. Circuit is quite important, because here, unlike in the 10 other circuits, the D.C. Circuit actually has two precedents 11 that are very important and that I think foreclose their 12 justiciability claims. 13 So the first is the D.C. Circuit's decision in Saavedra 14 Bruno. 15 claims, because if you read Saavedra Bruno, it goes through at 16 length about the doctrines of consular nonreviewability -- We think that that basically forecloses their statutory 17 THE COURT: 18 MR. MOOPPAN: Slow down again. -- and explains how, as the Supreme 19 Court said in the Knauff decision, it's not the province of 20 courts to review the exclusion of aliens abroad unless Congress 21 has expressly authorized it. 22 66 There is no express authorization here to bring their 23 statutory claims. The only arguments people have tried to make 24 to get around this is to say that there's somehow a difference 25 between individual aliens being excluded and policies. Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 67 of 83 1 67 And I think if you read Saavedra Bruno, you'll see that 2 that distinction just doesn't hold up. 3 Saavedra Bruno is that these judgments are political judgments 4 that are committed to the political branches unless Congress 5 says otherwise, and that distinction just doesn't matter, 6 whether it's an individual or a policy-based distinction. 7 The entire rationale of So that -- and that just wipes out their statutory claims 8 by itself, because they just have not pointed to any express 9 authorization to bring these claims. 10 11 On the constitutional side, the D.C. Circuit precedent that we think is highly relevant is the Navy Chaplaincy decision. 12 THE COURT: The Navy Chaplaincy. 13 MR. MOOPPAN: Navy Chaplaincy decision. Because what 14 that opinion makes clear is for -- so I -- the reason I'm 15 drawing the distinction here is, for constitutional claims, the 16 justiciability analysis is different. 17 THE COURT: Again, slow down. 18 MR. MOOPPAN: Thank you. The justiciability analysis is 19 different. Because it's a constitutional claim, they don't have 20 to point to express authorization. 21 show is that they're alleging a violation of their own 22 constitutional rights, and they can't show that here because 23 aliens abroad don't have constitutional rights to enter. 24 the U.S. citizens here, their establishment clause rights or due 25 process rights or equal protection rights are not violated by But what they do have to And Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 68 of 83 1 2 3 how the proclamation treats third-party aliens -THE COURT: What about plaintiffs' arguments with regard to organizational standing? 4 MR. MOOPPAN: 5 constitutional rights. 6 organizational standing -- we can quibble about whether they 7 have Article III injury in fact. 8 argue they do. 9 injury in fact. 10 The same thing. It's not their All of their arguments about We don't think they do; they But all of that goes to whether they have an That is a different question from whether their 11 constitutional rights are violated as opposed to whether they 12 have an injury in fact that's traceable from the treatment of a 13 third party, and what Navy Chaplaincy makes clear is that your 14 own constitutional rights are not violated when the government 15 engages in what might be an establishment clause violation 16 directed at third parties. 17 keep emphasizing the fact that they have factual injury, they 18 allege, and that's just not sufficient. 19 And all they've ever done is just So those are our key points on justiciability beyond what 20 we said in the briefs. 21 on the merits. 22 we've talked about that already, so I won't retread that ground 23 other than to point out that, as Your Honor asked, the statute 24 is clearly limited to immigrant visas. 25 Let me just turn to a couple of points On the statute, their statutory claim, 1152, So under no theory can they use that statute to get to 68 Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 69 of 83 None of the courts have said otherwise. 69 1 nonimmigrants. Both 2 Judge Chuang and -- both the district judges in Hawaii and 3 Maryland and the circuit courts, in the Fourth Circuit and the 4 Ninth Circuit, none of them have relied on 1152 as the basis to 5 impose an injunction for nonimmigrants. 6 The Ninth Circuit -- the reason it reached nonimmigrants on 7 the statutory claim is because they had a separate claim that we 8 exceeded our authority under 1182(f), an argument that they've 9 never made in their briefs. And if you look at footnote 24, I 10 believe, of the Hawaii decision, they make clear that that's the 11 reason that they're reaching nonimmigrants. 12 some sort of textual ignoring of the fact that 1152 says 13 immigrant visas quite clearly. 14 It's not based on I think we have fully ventilated the establishment clause 15 arguments, and so let me just turn to the refugee order because 16 incidentally, again, that is the only thing that hasn't already 17 been subject to two nationwide injunctions. 18 As we've talked about before, they can't show irreparable 19 injury even for that because that one is a 90-day provision, and 20 they haven't identified anyone who has an imminent likelihood of 21 being subjected to it within the next 90 days. 22 focus on the merits -- 23 THE COURT: But let me just Your argument being that the plaintiff 24 that Mr. Freedman has talked about has problems with his medical 25 records and, therefore, would not have been eligible for Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 70 of 83 1 70 entry -- 2 MR. MOOPPAN: So my understanding is they have 3 identified three individual refugees. 4 said, his medical screening test lapsed in October, so he would 5 have to get another medical screening test, is my understanding, 6 before he would potentially be even eligible to come in as a 7 refugee. 8 within the next 90 days whether or not the refugee order was in 9 place. 10 One is -- as Your Honor And so they can't show that he's going to be eligible And the other two individual refugees they've pointed to, 11 who I believe are Janes Doe 8 and 9, both, as we pointed out in 12 our brief, are very, very early in the refugee screening process 13 and so, wholly apart from the order, aren't going to be coming 14 in within the next 90 days anyway. 15 only three individual refugees they've pointed to. 16 And I believe those are the But let me just talk about the merits of those claims for 17 a little bit as well. 18 a claim under 1522. 19 services and assistance funded under this section. 20 So the statutory claim that they raise is That statute quite clearly says it's about And that section is a section that governs the State 21 Department and Health and Human Services in providing certain 22 types of funding -- certain types of services. 23 to do with the threshold question of whether refugees can be 24 admitted. 25 provision and if you look at the whole provision. It has nothing I think that's quite clear if you look at text of the Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 71 of 83 1 71 The only other thing I'll point out about this is that 2 it is quite commonplace to have nationality be a factor in 3 refugee eligibility. 4 there were preferences that were given to Central American 5 unaccompanied minors. So, for example, in the last few years, 6 Under their theory, that would all be illegal, because that 7 is the distinction based on nationality, and they would say that 8 it's not just for the services funded under the section; it 9 would be just for the refugee program writ large. So 10 nationality has always been considered on the front end, and it 11 would be a fairly remarkable thing to say otherwise. 12 The last thing I will say is on their constitutional 13 claims, here they can't even rely on the present statements 14 because the refugee order was issued under the separate and 15 independent authority of the three cabinet secretaries 16 identified, the Homeland Security Secretary, the Secretary of 17 State, and the Director of National Intelligence. 18 So -- and they don't have a shred of evidence for them, as 19 we've talked about before, and they can't try to impute anything 20 to them, as we were talking about earlier, for the proclamation. 21 They don't even have that leg to stand on with respect to the 22 refugee order. 23 24 25 If Your Honor has no further questions, thank you. THE COURT: Mr. Freedman? Thank you, Mr. Mooppan. Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 72 of 83 1 MR. FREEDMAN: Just briefly, Your Honor. I want to 2 start by saying I found the government's view of the meaning of 3 the word "discriminate" to be shocking. 4 someone liking black people and not white people was offensive, 5 and I think that they fundamentally don't understand what 6 "discriminate" means within the meaning of Section 1152, and it 7 causes me a lot of concern that they don't seem to understand 8 what it means for purposes of equal protection. Their example of 9 You can classify without animus. That's what President 10 Carter did in the example they cited. That's what President 11 Reagan did in the example they cited. It is not what President 12 Trump is doing here. 13 animus and we're free -- we have license to then make any 14 clarification we want even if it's made by animus because the 15 statute says it does and -- 16 THE COURT: Their idea that we can have him express I think that somewhat simplifies the 17 government's position which was that notwithstanding the 18 President's statements, there have been several iterations of 19 what we'll colloquially call a travel ban, and that the most 20 recent version and the orders and proclamations that we're 21 dealing with have the input of several agencies and 22 organizations which I guess negate whatever statements preceded 23 these orders. 24 is arguing. 25 I think that's probably more what the government MR. FREEDMAN: Fair enough, but let me say two things 72 Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 73 of 83 1 in response to that. 2 length what the equal protection precedent -- 3 THE COURT: 73 The first is I've walked through at some I'm sorry. And I will say that I'm not 4 quite sure -- I share with you a certain puzzlement about the 5 interpretation of the term "discriminate." 6 sure if I understand the argument with regards to that, but 7 that's neither here nor there. 8 9 MR. FREEDMAN: I'm still not quite So we did hear a lot from them about this is a -- this is a -- you know, the government has notions 10 of a clean team; a clean team came up with this. 11 make that argument, but that's the idea, that they've got a team 12 that has nothing to do with the tainted team that was -- that 13 was developing this. 14 They didn't Part of the reason I spent so much time going through the 15 equal protection and the establishment clause precedent was 16 because it's very clear, and the statutory discrimination laws 17 are very clear as to what is a permissible consideration. 18 you're looking at something that looks on its face like it's 19 neutral, how does that assess? 20 When Because, since Washington v. Davis, the Court has said -- 21 the Supreme Court has said we need to look at motive. We can't 22 just simply look at it on its face. 23 the historical background. 24 needs to consider the specific sequence of events that led to 25 it, the administrative history, and the contemporary statements. The Court needs to consider It needs to consider the impact. It Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 74 of 83 1 74 Now, we have sued everybody responsible for the 2 October 23rd memo. 3 sued two of the three. 4 process and substance are different, but I think the equal 5 protection and establishment clause and the anti-discrimination 6 provision says they can't say that the impact is different, and 7 they can't say that the purpose is different. 8 the fine details about what the three cabinet officials did. 9 But we know what the inputs were and we know what the output 10 11 Actually, we will amend to sue -- we have The question is -- they argue that the And we don't know was. These are the inputs. We have the President saying at the 12 beginning of this process his priority in implementing the 13 refugee ban was to change the situation if you were Muslim you 14 could come in, but if you were Christian you couldn't. 15 that was struck down, we have administration officials saying 16 that they would make minor and technical changes. 17 ban was struck down, the President said we ought to go back to 18 the first one and go all the way. 19 THE COURT: 20 MR. FREEDMAN: And when And when that But he didn't. That was what he said. The President 21 also said that we should have stayed with the original and that 22 they would seek a much tougher version. 23 did seek a tougher version. 24 actually tougher. 25 And I think that they This isn't exactly the same; it's And on September 15th the President again said that he Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 75 of 83 1 wanted a tougher one. 2 75 That's the motive. And we know what the output was. We know that when the 3 administration implemented the 120-day ban, that refugees from 4 Europe continued to come in at the same rate they had been 5 coming in before, but refugees from the listed countries did 6 not. 7 We know that the ban covers nine majority Muslim countries, 8 including the countries responsible for the lion's share of 9 Muslim refugees coming into this country. We know that the 10 administration has been prioritizing refugees from the 11 non-majority Muslim countries. 12 they're doing that by moving staff who would have been sent to 13 those countries to other places. 14 administration has reduced the size of the refugee program to 15 the lowest level since the program was established in 1980. 16 Our understanding is that We know that the We know that, after 90 days, refugees from the majority 17 Muslim countries will be at the end of the line. And probably 18 most importantly of all, we know who the boss is. We know who 19 is making policy for the government. 20 They reviewed 200 countries, and somehow they came up with 21 essentially the same list that Rudy Giuliani did at the 22 beginning. 23 have bridges they would like to sell. 24 25 If that's a coincidence, I know a lot of people who The Court had a question about how to implement an injunction, the scope of the injunction we're seeing [sic]. And Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 76 of 83 1 the government professed confusion about our effort to seek an 2 injunction of the waiver provision. 3 provision should be enjoined. 4 unequal system under the visa -- 5 THE COURT: We do believe the waiver It's a separate and inherently But doesn't the -- I mean, what of the 6 government's argument that the waiver provision is actually the 7 safety valve here? 8 who might otherwise not be allowed to enter -- to enter to seek 9 an exception. 10 I mean, the waiver provision allows people So what of their argument that it actually is against your clients' interests to enjoin that provision? 11 MR. FREEDMAN: Requiring our clients to go through 12 this process requires them to participate in a separate and 13 inherently unequal system consistent with the government's 14 overall animus towards them. 15 valve. 16 along with the main provisions. 17 76 It's not an appropriate safety It's not an appropriate solution. It should be enjoined With regard to the refugee ban, I can specify language -- 18 with regard to the memorandum itself, we can't point to 19 particular provisions -- the October 23rd memorandum. 20 point to particular provisions. 21 order that quotes the relevant language we think is causing the 22 problem. We can't We did point to language in our 23 With regard to the October 24th order, there are references 24 to that process in sections 2(a) and sections 3(a) that we think 25 should be subject to the injunction. With the rest -- with Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 77 of 83 1 those -- with that carve-out out, we agree the rest of the 2 proclamation -- I'm sorry -- the rest of the executive order is 3 acceptable. 77 4 I want to reiterate one point on the Refugee Act, which I 5 did say earlier, but I think it bears emphasis in light of the 6 argument that we just heard about it. 7 decisions necessarily implicate the provision of services at the 8 back end. 9 The front-end admission So putting aside the argument that I made earlier about how 10 the Refugee Act needs to be understood as consistent with our 11 international legal obligations, saying that the sources of 12 Muslim refugees in this country, that people from those 13 countries can no longer be admitted as refugees is necessarily 14 going to cause discrimination at the back end. 15 I think the final thing I want to note -- we heard a little 16 bit about Saavedra Bruno. I don't know why they're affording 17 particular significance to that case. 18 say if your visa is denied or if you're trying to get in and 19 you've been denied, you, as an individual, don't have a 20 justiciable right. 21 here. 22 State Department has visa rules, when the State Department 23 program -- refugee program establishes criteria and says this is 24 how we're going to evaluate people, you can't override that 25 motivated by discrimination because we don't like people from There are many cases that That's not what our theory of the case is Our theory of the case is that in implementing, when the Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 78 of 83 1 78 certain Muslim countries. 2 THE COURT: But, I mean, your point is that you don't 3 need to get to the point where you're denied a visa to have a 4 right to sue. 5 have to be denied a visa before you can claim some harm. 6 mean, the fact is, though, that your plaintiffs still have the 7 chance to be granted visas. 8 Correct? 9 And I think the government is saying you do; you MR. FREEDMAN: I They haven't been turned down. Well, our -- I guess as long as the 10 injunction is in place, yes, nobody has been turned down. Many 11 of my clients are unhappy that -- like, they've been held up for 12 a year. 13 for the refugees where there's a limited number of spaces for 14 them to come in. And delay in and of itself is an injury, particularly 15 THE COURT: All right. 16 MR. FREEDMAN: I do want to also, just in response to 17 Saavedra -- I mean, there are cases that certainly recognize the 18 ability to bring APA challenges or constitutional challenges in 19 this area where you're challenging policy. 20 case in Legal Assistance for Vietnamese Asylum Seekers, Haitian 21 refugee center cases, all recognize the right to bring these 22 types of claims. 23 you know, they did in the Vietnamese refugee case, they did not 24 in the Haitian refugee cases, but they clearly have the right to 25 bring the claims. The D.C. Circuit Whether they succeeded or not on merits as, Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 79 of 83 1 79 The final thing I just want to say is just in terms of 2 timing, you gave us a week to file an amended complaint. 3 going to do it tomorrow. 4 urgent. 5 as possible, and we're going to do whatever we can to get the 6 revised complaint on file. THE COURT: 8 MR. FREEDMAN: 9 THE COURT: 11 We think that the refugee situation is We would like the Court to enter an injunction as soon 7 10 We're All right. Thank you, Your Honor. Thank you. Mr. Mehri, briefly. MR. MEHRI: Thank you, Your Honor. Just a few points 12 that might be of help to the Court. 13 a bona fide relationship, I just want to point the Court to the 14 Ninth Circuit decision in September, pages 24 to 34, which 15 talked about the refugee context in quite a bit of detail. 16 might be helpful. 17 On the whole discussion of In terms of Havens standing and constitutional claims, from 18 Havens all the way through the Inclusive Communities case a 19 couple of years ago that Justice Kennedy wrote, the Supreme 20 Court has been clear that Havens standing is as broad as 21 Article III. 22 So we have that. In terms of APA, anybody who's aggrieved, that was noted by 23 Judge Sentelle here in this circuit, D.C. Circuit, in the 24 Vietnamese Asylum case. 25 That On the issue of the -- whether you can have purposeful or Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 80 of 83 80 1 intentional part of the discrimination statutes, we would point 2 the Court back to the very first civil rights statutes after the 3 Civil War in 1866 were statutory claims about purpose and 4 intent, like Section 1981. 5 jurisprudence. 6 So that's always been part of our And I'll just finally say that they raise concern about 7 impugning the cabinet members. They've impugned an entire 8 nationality of Iranian-Americans with evidence that you've had 9 before you, going back to the evidentiary hearing, the 10 affidavits that we've submitted on this round, including PAAIA's 11 affidavit that talks about not only responding to hate crimes, 12 but the increase of stigmatization in the community and the 13 feeling of being discriminated. 14 And I would just say, when you look at the issue of the 15 public interest and the balance of the equities, to look at 16 three of our plaintiffs: 17 this country. 18 permanent ban, they can't be reunited. 19 Navy veteran Mr. Jahanfar, who served He's engaged to a woman in Iran. Ms. Yazdani, her father came here to do pioneering work in 20 ophthalmology. 21 her mother to be able to immigrate to the U.S. 22 Under the She's a citizen here. THE COURT: She wants her father and Don't those last two plaintiffs have -- 23 couldn't they obtain relief under the waiver? And when I say 24 relief," not relief from this Court, but couldn't they be 25 granted exceptions under the waiver provision? Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 81 of 83 1 MR. FREEDMAN: 2 THE COURT: 3 MR. FREEDMAN: 81 I don't believe so, Your Honor -- Why is that? -- and I'll tell you why. Because, 4 one, you have to -- well, first of all, the standards are 5 ambiguous; no one knows exactly what they are. 6 undue hardship, which is a very high standard which one could 7 argue it has to be a medical emergency or something of that 8 sort; and two, it has to be in the United States national 9 interest, which would be hard for, for example, Ms. Yazdani to But you have the 10 bring her parents here to say that's in the United States' 11 national interest. 12 unequal standard, as my colleague has said. So it is an illusory, separate but an 13 Another balance of equities is one of our refugees clients, 14 Reza Zoghi, who is fleeing oppression in Iran, as noted earlier, 15 and embracing the democratic principles of this country. 16 17 So, with that, Your Honor, I have nothing more to say from our side. 18 Thank you, Your Honor. THE COURT: Thank you, all. I appreciate the 19 preparation that has gone into both the pleadings and the 20 arguments here today. 21 You've given this Court a lot to consider. 22 representation that you'll file your supplemental as soon as 23 possible. And I will try and return a decision as soon as 24 possible. Mr. Schwei? 25 MR. SCHWEI: Both sides were very well prepared. I take your Thank you, Your Honor. Just one Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 82 of 83 1 82 housekeeping matter -- 2 THE COURT: 3 MR. SCHWEI: Yes. -- regarding the amended complaint. We'd 4 like to clarify that the federal government's response to that 5 complaint is stayed pending the resolution of this preliminary 6 injunction motion. 7 with the other side in the context of the current operative 8 complaint. 9 That was the agreement that we had reached THE COURT: Mr. Freedman? 10 MR. FREEDMAN: 11 THE COURT: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Thank you. That's fine. That's fine. That is fine, Mr. Schwei. I think I have plenty of briefing. (Laughter) THE COURT: Thank you, all. (Proceedings adjourned at 11:41 a.m.) Case 1:17-cv-00255-TSC Document 129 Filed 11/08/17 Page 83 of 83 * * * * * * CERTIFICATE I, BRYAN A. WAYNE, Official Court Reporter, certify that the foregoing pages are a correct transcript from the record of proceedings in the above-entitled matter. __________________ BRYAN A. WAYNE 83