Case 1:17-cv-00255-TSC Document 135 Filed 01/03/18 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PARS EQUALITY CENTER, IRANIAN AMERICAN BAR ASSOCIATION, PUBLIC AFFAIRS ALLIANCE OF IRANIAN AMERICANS, INC., et al., Civil Action No. 1:17-cv-255 Hon. Tanya S. Chutkan Plaintiffs, v. DONALD J. TRUMP et al., Defendants. PLAINTIFFS’ STATUS REPORT AND REQUEST FOR A CASE MANAGEMENT SCHEDULE Since the Court heard oral argument on Plaintiffs’ Motion for Preliminary Injunction on November 2, 2017, and Plaintiffs filed the Third Amended Complaint on November 3, 2017, there have been a number of material developments in this matter that further support Plaintiffs' request that this Court promptly enter a preliminary injunction against the discriminatory provisions of the September 24 Proclamation as well as discriminatory provisions of the October Refugee Ban. See ECF No. 123. Alternatively, Plaintiffs request that this Court set a case management schedule allowing for expeditious resolution of Plaintiffs' claims on the merits. In support of this request, Plaintiffs state as follows: 1. At the close of the November 2 hearing, the Government requested that their time to respond to Plaintiffs' Third Amended Complaint be stayed “pending the resolution of the preliminary injunction motion.” 11/2/17 Hr’g Tr. 81-82. At that time, Plaintiffs had no objection, and the Court granted that request, relieving the Government of its obligation under Federal Rule of Civil Procedure 12(a)(2) to respond within 60 days. Case 1:17-cv-00255-TSC Document 135 Filed 01/03/18 Page 2 of 7 2. On December 7, the Government further suggested to the Court that it should “decline to enter any injunctive relief” and “consider staying these matters until proceedings in IRAP and Hawaii have concluded.” ECF No. 132. The Government made that request in violation of Local Rule 7(m). In addition, the Government did not present any of the required showings to demonstrate entitlement to a stay. See, e.g., Dellinger v. Mitchell, 442 F.2d 782, 785-86 (D.C. Cir. 1971) (discussing Landis v. North America Co., 299 U.S. 248 (1936)). 3. A number of material events have occurred since the November 2 hearing. Plaintiffs have previously brought some, but not all of them, to the Court’s attention. See ECF Nos. 130, 131. 4. These events constitute changed circumstances since the Court agreed to stay the Government’s obligation to respond to the Third Amended Complaint. Because Plaintiffs are continuing to experience irreparable harm—indeed, the harms have intensified—Plaintiffs respectfully request that the Court either grant preliminary injunctive relief or set a schedule that will allow the parties to expeditiously resolve the case on the merits. Plaintiffs believe that any such a schedule should provide a brief discovery period and culminate in motions for summary judgment. CHANGED CIRCUMSTANCES SINCE THE NOVEMBER 2 HEARING At least six changed circumstances since the November 2 hearing make it critical, as a matter of fairness, legal propriety, and individual security, that this matter proceed. First, as detailed in ECF No. 131, on December 4, the Supreme Court granted the Government’s application and stayed the preliminary injunctions entered by the District of Hawaii and the District of Maryland. Those orders made clear that litigation in the lower courts is to proceed “with appropriate dispatch.” See ECF No. 131-1, Exs. 1 & 2. 2 Case 1:17-cv-00255-TSC Document 135 Filed 01/03/18 Page 3 of 7 Second, in the last full week of December, there were two key decisions by other courts concerning the Travel Ban: On December 22, 2017, the Ninth Circuit affirmed the District of Hawaii’s preliminary injunction. A copy of this decision is attached as Exhibit 1. Pursuant to the Supreme Court’s December 4 Order, the Ninth Circuit stayed its order pending Supreme Court review. On December 23, 2017, in Doe v. Trump and Jewish Family Services of Seattle v. Trump, the Western District of Washington partially enjoined the October 24 Executive Order that applied to refugees. Plaintiffs in these cases filed their motions for preliminary injunction on November 6 and 16, 2017, respectively, shortly after this Court hear oral argument in this case. A copy of the Washington decision is attached as Exhibit 2. The relief granted by the Western District of Washington is similar, but narrower, than the relief Plaintiffs requested from this Court. See ECF No. 117.1 Third, Plaintiffs continue to experience irreparable harm. The vast majority of the factual situations described in ECF No. 131 (and previously in ECF Nos. 123, 117, and 107-1) remain true today.2 For purposes of ensuring that appellate courts have the fullest basis upon which to rule, this case presents (i) a unique and well developed record describing how the Travel Ban has impacted Iranians and Iranian-Americans, the single largest group targeted by the Government’s actions, and (ii) several legal claims that have not been advanced by other litigants. Fourth, there is now irrefutable evidence that defendants have manipulated the Travel Bans to prevent Muslims from entering the United States. In prior filings and at the November 2 hearing, Plaintiffs noted the precipitous drop in visas and refugee applications granted to Iranians and nationals of the other listed countries since the Travel Ban was announced, notwithstanding 1 Prior to issuing an injunction, the Western District of Washington asked the parties to brief the impact, if any, the Supreme Court’s December 4, 2017 orders had on the motions for preliminary injunction pending before it. The Western District of Washington concluded that the December 4 orders did not preclude the issuance of a partial injunction as to the October 24 Executive Order. The same conclusion is warranted here.. 2 The visa of Plaintiff Mohammad Jahanfar’s fiancée was issued prior to the Supreme Court’s December 4 order, and she entered the United States on December 24, 2017. 3 Case 1:17-cv-00255-TSC Document 135 Filed 01/03/18 Page 4 of 7 the injunctions. See, e.g., ECF Nos. 88, 106, 123. Following the November 2 hearing, additional news reports have confirmed the steep fall in visas issued and refugee applications granted to Iranians and Muslims in general—leaving no doubt that these Executive Actions are a de facto Muslim ban. Specifically: On December 12, 2017, the Cato Institute issued a report entitled, “Muslim Ban? Fewer Muslim Refugees, Immigrants and Travelers Enter the United States in 2017” (hereinafter “Cato Institute Report”). See Ex. 3. The Cato Institute Report found: “Muslim refugee admissions have fallen dramatically over the past year. According to figures from the State Department, Muslim refugee flows fell 94 percent from January to November 2017 (the last full month of available data). In calendar 2016, the United States admitted almost 45,000 Muslim refugees, compared to a little more than 11,000 in 2017—fully half of those entered in January and February. Of course, the administration has cut refugee flows generally, but the Muslim share of all refugees has dropped substantially too—from 50 percent in January to less than 10 percent in November.” (emphasis added) On December 8, 2017, Reuters issued a report by Yeganeh Torbati entitled “Trump lifts refugee ban, but admissions plummet, data shows” (hereinafter “Reuters Report”). See Ex.4. The Reuters Report concluded: “For each of the last three years, refugees from the 11 countries [identified in the Travel Bans] made up more than 40 percent of U.S. admissions . . . . And in practice, of the 11 countries only Iran, Iraq, Somalia, South Sudan, Sudan and Syria produce refugees who resettle in the United States in meaningful numbers. Trump administration officials have said the 90-day review does not amount to a bar on refugees from the 11 countries. But just as the review launched, the number of refugees coming from those countries ceased almost entirely. In the five weeks before the ban was lifted, 587 refugees from the 11 countries were allowed in, despite tough eligibility rules, according to the Reuters review of the State Department data. In the five weeks after Trump lifted the ban, just 15 refugees from those countries were allowed in. . . . Just 9 percent of refugees admitted to the United States between Oct. 25 and Nov. 28 were Muslim, and 63 percent were Christian.” (emphasis added) According to data from the State Department’s Refugee Processing Center, since the refugee ban was lifted on October 24, only two Iranian refugees have been admitted to the United States, neither of whom are Muslim. Over comparable time periods (October 25 to January 2), in 2016/17, the United States admitted 704 refugees from Iran, 58 of whom were Muslim, while in 2015/16, 497 Iranian refugees, including 60 Muslims, were admitted. See Ex. 5. Based on data and information collected by the Organizational Plaintiffs, since the Supreme Court’s December 4 Order, the Department of State has only granted a single waiver to an Iranian visa seeker, while hundreds of visas for individuals from the listed countries have been denied. 4 Case 1:17-cv-00255-TSC Document 135 Filed 01/03/18 Page 5 of 7 Fifth, there is now considerable reason to believe that the Government, in furtherance of a Muslim ban, violated prior injunctions of the Travel Ban. At the November 2 hearing, in the April 18 live testimony, and in prior filings with the Court, Plaintiffs noted ongoing discrimination against Iranian visa applicants and refugees, citing, among other things, the Government’s failure to comply with injunctions entered by other courts. See, e.g., ECF Nos. 31-1, 35-1, 80, 83, 106, 107-1. Following the November 2 hearing, the press has reported that (i) the Department of Homeland Security ("DHS") Inspector General investigated the Government’s compliance with various injunctions, (ii) the Inspector General issued a report finding that the Government violated those injunctions, (iii) that DHS and the Department of Justice refused to release the report, and (iv) the DHS Inspector General subsequently resigned. See Exs. 6 & 7. These facts are, to say the least, damning. Finally, as detailed in ECF No. 131, the President recently reaffirmed his anti-Muslim bias, and the Administration confirmed the anti-Muslim basis for the Executive Actions. See ECF No. 131-1, Exs. 3 & 4. At the prior oral arguments and in previous filings with the Court, Plaintiffs have cataloged the evidence that the Travel Bans are motivated by the Administration’s professed anti-Muslim animus. See ECF Nos. 3, 34, 35-1, 106, 107-1. These changes in circumstance warrant either entry of a preliminary injunction or advancing this case expeditiously to a final resolution on the merits. RULE 7(m) CERTIFICATION Pursuant to Local Rule 7(m), Counsel for Plaintiffs requested the Government’s position concerning the relief requested in this filing. The Government did not provide its position prior to this filing. A copy of the correspondence is attached as Exhibit 8. 5 Case 1:17-cv-00255-TSC Document 135 Filed 01/03/18 Page 6 of 7 CONCLUSION Plaintiffs in this case have (at great expenditure of resources) created a robust factual record involving the Administration’s Travel Bans unlike any other case in the country. Without a ruling from this Court, Plaintiffs have been unable to join the national litigation currently under way on this issue, and the D.C. Circuit and Supreme Court has been deprived of the robust record created in this case. For this reason, and the other reasons set forth above and in Plaintiffs’ prior submissions, Plaintiffs urge this Court to enter a preliminary injunction against the discriminatory provisions of the September 24 Proclamation, as well as discriminatory provisions of the October Refugee Ban. Alternatively, the Court should set a schedule allowing for expeditious resolution on the merits, including a brief discovery period and motions for summary judgment. 6 Case 1:17-cv-00255-TSC Document 135 Filed 01/03/18 Page 7 of 7 Dated: January 3, 2018 Respectfully submitted, /s/ John A. Freedman John A. Freedman (D.C. Bar # 453075) David P. Gersch (D.C. Bar # 367469) R. Stanton Jones (D.C. Bar # 987088) Nancy L. Perkins (D.C. Bar # 421574) Ronald A. Schechter (D.C. Bar # 245019) Robert N. Weiner (D.C. Bar # 298133) Samuel M. Witten (D.C. Bar # 378008) Sally L. Pei (D.C. Bar # 1030194) Sonia Tabriz (D.C. Bar # 1025020) Stephen K. Wirth (D.C. Bar # 1034038) ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave., NW Washington, DC 20001 (202) 942-5000 (202) 942-5999 (fax) john.freedman@apks.com Cyrus Mehri (D.C. Bar # 420970) U.W. Clemon (D.D.C . Bar # AL0013) Joanna K. Wasik (D.C. Bar # 1027916) MEHRI & SKALET, PLLC 1250 Connecticut Ave., NW, Suite 300 Washington, DC 20036 (202) 822-5100 (202) 822-4997 (fax) cmehri@findjustice.com Kristen Clarke (D.C. Bar # 973885) Jon Greenbaum (D.C. Bar # 489887) LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Ave., NW, Suite 400 Washington, DC 20005 (202) 662-8600 (202) 783-0857 (fax) jgreenbaum@lawyerscommittee.org Christopher M. Odell (pro hac vice) ARNOLD & PORTER KAYE SCHOLER LLP 700 Louisiana Street, Suite 1600 Houston, TX 77002 (713) 576-2400 (713) 576-2499 (fax) christopher.odell@apks.com Hassan Zavareei (D.C. Bar # 456161) TYCKO & ZAVAREEI LLP 1828 L Street, NW, Suite 1000 Washington, DC 20036 (202) 973-0900 (202) 973-0950 (fax) hzavareei@tzlegal.com Susan S. Hu (pro hac vice) ARNOLD & PORTER KAYE SCHOLER LLP 250 West 55th Street New York, NY 10019 (212) 836-8000 (303) 836-8689 (fax) susan.hu@apks.com Adrienne D. Boyd (pro hac vice) ARNOLD & PORTER KAYE SCHOLER LLP 370 Seventeenth Street, Suite 4400 Denver, CO 80202 (303) 863-1000 (303) 832-0428 (fax) adrienne.boyd@apks.com Counsel for Plaintiffs 7 EXHIBIT 1 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 2 of 173 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FILED DEC 22 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS STATE OF HAWAII; ISMAIL ELSHIKH; JOHN DOES, 1 & 2; MUSLIM ASSOCIATION OF HAWAII, INC., Plaintiffs-Appellees, v. No. 17-17168 D.C. No. 1:17-cv-00050-DKW-KSC District of Hawaii, Honolulu ORDER DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN M. NIELSEN, in her official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX W. TILLERSON, in his official capacity as Secretary of State; UNITED STATES OF AMERICA, Defendants-Appellants. Before: HAWKINS, GOULD, and PAEZ, Circuit Judges. The opinion disposition filed on December 22, 2017, is withdrawn and a new opinion disposition is filed concurrently with this order. Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 3 of 173 FILED FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 22 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT STATE OF HAWAII; ISMAIL ELSHIKH; JOHN DOES, 1 & 2; MUSLIM ASSOCIATION OF HAWAII, INC., No. U.S. COURT OF APPEALS 17-17168 D.C. No. 1:17-cv-00050-DKW-KSC Plaintiffs-Appellees, v. OPINION DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN M. NIELSEN, in her official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX W. TILLERSON, in his official capacity as Secretary of State; UNITED STATES OF AMERICA, Defendants-Appellants. Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding Argued and Submitted December 6, 2017 Seattle, Washington Before: Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez, Circuit Judges. PER CURIAM: Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 4 of 173 For the third time, we are called upon to assess the legality of the President’s efforts to bar over 150 million nationals of six designated countries1 from entering the United States or being issued immigrant visas that they would ordinarily be qualified to receive. To do so, we must consider the statutory and constitutional limits of the President’s power to curtail entry of foreign nationals in this appeal of the district court’s order preliminarily enjoining portions of § 2 of Proclamation 9645 entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats” (the “Proclamation”). The Proclamation, like its predecessor executive orders, relies on the premise that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., vests the President with broad powers to regulate the entry of aliens. Those powers, however, are not without limit. We conclude that the President’s issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government’s interpretation of 8 U.S.C. § 1182(f) not only upends the carefully crafted immigration scheme Congress has enacted through the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well. 1 Although Proclamation 9645 imposes varying restrictions on nationals of eight countries—Chad, Iran, Libya, Somalia, Syria, Yemen, North Korea, and Venezuela—Plaintiffs challenge only the restrictions imposed on the nationals of six Muslim-majority countries. 2 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 5 of 173 Further, the President did not satisfy the critical prerequisite Congress attached to his suspension authority: before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be “detrimental to the interests of the United States.” 8 U.S.C. § 1182(f). The Proclamation once again conflicts with the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. Lastly, the President is without a separate source of constitutional authority to issue the Proclamation. On these statutory bases, we affirm the district court’s order enjoining enforcement of the Proclamation’s §§ 2(a), (b), (c), (e), (g), and (h). We limit the scope of the preliminary injunction, however, to foreign nationals who have a bona fide relationship with a person or entity in the United States. I. Background2 A. Prior Executive Orders and Initial Litigation On January 27, 2017, one week after his inauguration, President Donald J. Trump signed an Executive Order entitled “Protecting the Nation From Foreign Terrorist Entry into the United States.” Exec. Order 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017) (“EO-1”). EO-1’s stated purpose was to “protect the American people from terrorist attacks by foreign nationals admitted to the United States.” 2 Portions of the background section have been drawn from the district court’s order below. See Hawai’i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 4639560, at *1–4 (D. Haw. Oct. 17, 2017) (“Hawai’i TRO”). 3 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 6 of 173 Id. EO-1 took effect immediately and was challenged in several venues shortly after it was issued. On February 3, 2017, a federal district court in the State of Washington enjoined the enforcement of EO-1. See Washington v. Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017). The Government filed an emergency motion seeking a stay of the injunction, which we denied. See Washington v. Trump, 847 F.3d 1151, 1161–64 (9th Cir. 2017) (per curiam), reh’g en banc denied, 853 F.3d 933 (9th Cir. 2017). The Government later voluntarily dismissed its appeal of the EO-1 injunction. On March 6, 2017, the President issued Executive Order 13,780, which was given the same title as EO-1 and was set to take effect on March 16, 2017. 82 Fed. Reg. 13,209 (Mar. 6, 2017) (“EO-2”). EO-2 directed the Secretary of Homeland Security to conduct a global review to determine whether foreign governments were providing adequate information about their nationals seeking entry into the United States. See EO-2 § 2(a). EO-2 also directed the Secretary of Homeland Security to report those findings to the President; following the Secretary’s report, nations identified as providing inadequate information were to be given an opportunity to alter their practices before the Secretary would recommend entry restrictions for nationals of noncompliant countries. Id. §§ 2(b), (d)–(f). During this global review, EO-2 imposed a 90-day suspension on the entry of certain foreign nationals from six Muslim-majority countries: Iran, Libya, 4 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 7 of 173 Somalia, Sudan, Syria, and Yemen. Id. § 2(c). That 90-day suspension was challenged in multiple courts and was preliminarily enjoined by federal district courts in Hawai‘i and Maryland. See Hawaiʻi v. Trump, 245 F. Supp. 3d 1227 (D. Haw. 2017); Int’l Refugee Assistance Project (“IRAP”) v. Trump, 241 F. Supp. 3d 539 (D. Md. 2017). Those injunctions were affirmed by the Ninth and Fourth Circuits, respectively. See Hawai‘i v. Trump (Hawai‘i I), 859 F.3d 741 (9th Cir. 2017) (per curiam); IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc), as amended (May 31, 2017). The Supreme Court granted a writ of certiorari in both cases and left the injunctions in place pending its review, except as to foreign nationals who lacked a “credible claim of a bona fide relationship with a person or entity in the United States.” Trump v. IRAP, 137 S. Ct. 2080, 2088 (2017). On September 24, 2017, the President issued the Proclamation, which indefinitely suspends immigration by nationals of seven countries and imposes restrictions on the issuance of certain nonimmigrant visas for nationals of eight countries. 82 Fed. Reg. 45,161, 45,164–67 (Sept. 24, 2017). The entry restrictions were immediately effective for foreign nationals who 1) were subject to EO-2’s restrictions, and 2) lack a credible claim of a bona fide relationship with a person or entity in the United States. Id. at 45,171. For all other affected persons, the Proclamation was slated to take effect on October 18, 2017. Id. On October 10, 2017, the Supreme Court vacated the Fourth Circuit’s opinion in IRAP v. Trump as 5 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 8 of 173 moot. See Trump v. IRAP, No. 16-1436, — S. Ct. —, 2017 WL 4518553 (U.S. Oct. 10, 2017). On October 24, 2017, the Supreme Court vacated our opinion in Hawai‘i I on the same grounds. See Trump v. Hawai‘i, No. 16-1540, — S. Ct. —, 2017 WL 4782860 (U.S. Oct. 24, 2017). In vacating our prior decision as moot, the Supreme Court explicitly noted that it expressed no view on the merits of the case. See id. B. Plaintiffs’ Third Amended Complaint On October 10, 2017, Plaintiffs sought to amend their complaint to include allegations related to the Proclamation. The third amended complaint includes statutory claims for violations of the INA, the Religious Freedom Restoration Act, and the Administrative Procedure Act, as well as constitutional claims for violations of the Establishment and Free Exercise Clauses of the First Amendment and the equal protection guarantees of the Fifth Amendment’s Due Process Clause. Plaintiffs also moved for a temporary restraining order; after expedited briefing, the district court granted the motion on October 17, 2017. Hawai’i TRO, 2017 WL 4639560, at *1. Relying on our now-vacated opinion in Hawai‘i I, the district court found that the Proclamation suffered from the same deficiencies as EO-2. Id. at *1, *9–13. At the parties’ request, the district court converted the temporary restraining order into a preliminary injunction on October 20, 2017, rendering it an 6 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 9 of 173 appealable order. Hawai’i v. Trump, No. CV 17-00050 DKW-KSC (D. Haw. Oct. 20, 2017), ECF No. 390 (order entering preliminary injunction). The Government timely appealed. During the pendency of this appeal, we partially stayed the district court’s preliminary injunction “except as to foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” Hawai‘i v. Trump, No. 17-17168, 2017 WL 5343014 (9th Cir. Nov. 13, 2017). On December 4, 2017, the Supreme Court granted the Government’s request for a complete stay pending review of the district court’s preliminary injunction. Trump v. Hawai‘i, No. 17A550, — S. Ct. — (Dec. 4, 2017). C. The Proclamation The Proclamation derives its purpose from the President’s belief that he “must act to protect the security and interests of the United States.” 82 Fed. Reg. at 45,161. In furtherance of this goal, the Proclamation imposes indefinite and significant restrictions and limitations on entry of nationals from eight countries whose information-sharing and identity-management protocols have been deemed “inadequate.” Id. at 45,162–67. The Proclamation notes that screening and vetting protocols and procedures play a critical role in preventing terrorist attacks and other public safety threats by enhancing the Government’s ability to “detect foreign nationals who may commit, aid, or support acts of terrorism.” Id. at 7 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 10 of 173 45,162. Thus, the Proclamation concludes, “absent the measures set forth in th[e] proclamation, the immigrant and nonimmigrant entry into the United States of persons described in section 2 of th[e] proclamation [will] be detrimental to the interests of the United States.” Id. at 45,161–62. The President selected eight countries for inclusion in the Proclamation based on a “worldwide review” conducted under the orders of EO-2. Id. at 45,161, 45,163–64. As part of that review, the Secretary of the Department of Homeland Security established global requirements for information sharing “in support of immigration screening and vetting” that included a comprehensive set of criteria on the information-sharing practices, policies, and capabilities of foreign governments. Id. at 45,161–63. The Secretary of State then “engaged with the countries reviewed in an effort to address deficiencies and achieve improvements.” Id. at 45,161. The Secretary of Homeland Security, after consultation with the Secretary of State and the Attorney General, ultimately identified 16 countries as “inadequate” based on “an analysis of their identity-management protocols, information-sharing practices, and risk factors.” Id. at 45,163. An additional 31 countries were deemed “at risk” of becoming “inadequate.” Id. Countries were classified as “inadequate” based on whether they met the “baseline” developed by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence. Id. at 45,162. The 8 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 11 of 173 baseline incorporated three categories of criteria: 1) identity-management information; 2) national security and public-safety information; and 3) national security and public-safety risk assessment. Id. Identity-management information ensures that foreign nationals seeking to enter the United States are who they claim to be. Id. This category “focuses on the integrity of documents required for travel to the United States,” including whether the country issues passports with embedded data to confirm identity, reports lost and stolen passports, and provides additional identity-related information when requested. Id. National security and public-safety information includes whether the country “makes available, directly or indirectly, known or suspected terrorist and criminal-history information upon request,” whether it provides identity document exemplars, and whether the country “impedes the United States Government’s receipt of information about passengers and crew traveling to the United States.” Id. Finally, national security and public-safety risk assessment focuses on whether the country is “a known or potential terrorist safe haven,” whether the country participates in the Visa Waiver Program, and whether the country “regularly fails to receive its nationals” following their removal from the United States. Id. at 45,162–63. After a “50-day engagement period to encourage all foreign governments . . . to improve their performance,” the Secretary of Homeland Security ultimately determined that Chad, Iran, Libya, North Korea, Syria, 9 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 12 of 173 Venezuela, and Yemen continued to be “inadequate” based on their identitymanagement protocols, information-sharing practices, and risk factors.3 Id. at 45,163. The Secretary of Homeland Security also determined that Iraq did not meet the baseline requirements, but concluded that entry restrictions and limitations were not warranted because of the “close cooperative relationship between the United States and the democratically elected government of Iraq, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combating the Islamic State of Iraq and Syria (ISIS).” Id. On September 15, 2017, the Secretary of Homeland Security submitted a report to the President recommending entry restrictions for nationals from seven countries “determined to be ‘inadequate’ in providing such [requested] information and in light of the other factors discussed in the report.” Id. After consultation with “appropriate Assistants to the President and members of the Cabinet, including the Secretaries of State, Defense, and Homeland Security, and the Attorney General” and “accounting for the foreign policy, national security, and 3 The Proclamation does not include the other thirty-nine countries deemed either “inadequate” or “at risk” of becoming “inadequate.” See 82 Fed. Reg. at 45,163. As the district court noted, “the explanation for how the Administration settled on the list of eight countries is obscured.” Hawaiʻi TRO, 2017 WL 4639560, at *11 n.16. This is due, in large part, to the fact that no court has been able to consider— or even view—the DHS report in question. 10 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 13 of 173 counterterrorism objectives of the United States,” the President decided to “restrict and limit the entry of nationals of 7 countries found to be ‘inadequate’”: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. Id. at 45,164. And although Somalia “generally satisfies” the information-sharing requirements of the baseline, the President also imposed entry restrictions and limitations on Somalia nationals because of “its government’s inability to effectively and consistently cooperate, combined with the terrorist threat that emanates from its territory.” Id. The President restricted entry of all immigrants from seven of the eight countries, and adopted “a more tailored approach” to the entry of nonimmigrants. Id. at 45,164–65. Section 2’s challenged country restrictions and proffered rationales are as follows: Chadian nationals may not enter as immigrants or nonimmigrants on business, tourist, or business/tourist visas because, although Chad is “an important and valuable counterterrorism partner of the United States, and . . . . has shown a clear willingness to improve,” it “does not adequately share public-safety and terrorism-related information,” and several terrorist groups are active within Chad or the surrounding region. Id. at 45,165. Iranian nationals may not enter as immigrants or nonimmigrants except under valid student and exchange visitor visas, and such visas are subject to 11 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 14 of 173 “enhanced screening and vetting.” Id. The Proclamation notes that “Iran regularly fails to cooperate with the United States Government in identifying security risks, fails to satisfy at least one key risk criterion, is the source of significant terrorist threats, and fails to receive its nationals” following final orders of removal from the United States. Id. The entry of Libyan nationals as immigrants and as nonimmigrants on business, tourist, or business/tourist visas is suspended because, although Libya “is an important and valuable counterterrorism partner,” it “faces significant challenges in sharing several types of information, including public-safety and terrorism-related information,” “has significant deficiencies in its identitymanagement protocols,” does not “satisfy at least one key risk criterion,” has not been “fully cooperative” in receiving its nationals after their removal from the United States, and has a “substantial terrorist presence” within its territory. Id. at 45,165–66. The entry of all Syrian nationals—on immigrant and non-immigrant visas alike—is suspended because “Syria regularly fails to cooperate with the United States Government in identifying security risks, is the source of significant terrorist threats, and has been designated by the Department of State as a state sponsor of terrorism.” Id. at 45,166. Syria also has “significant inadequacies in identity- 12 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 15 of 173 management protocols, fails to share public-safety and terrorism information, and fails to satisfy at least one key risk criterion.” Id. Yemeni nationals may not enter the United States as immigrants or nonimmigrants on business, tourist, or business/tourist visas because despite being “an important and valuable counterterrorism partner,” Yemen “faces significant identity-management challenges, which are amplified by the notable terrorist presence within its territory.” Id. at 45,166–67. Somali nationals may not enter the United States as immigrants, and all nonimmigrant visa adjudications and entry decisions for Somali nationals are subject to “additional scrutiny.” Id. at 45,167. Although Somalia satisfies information-sharing requirements, it “has significant identity-management deficiencies” and a “persistent terrorist threat also emanates from Somalia’s territory.” Id. These restrictions apply to foreign nationals of the affected countries outside the United States who do not hold valid visas as of the effective date and who do not qualify for a visa under § 6(d)4 of the Proclamation. Id. Suspension of entry does not apply to lawful permanent residents of the United States; foreign nationals 4 Section 6(d) of the Proclamation permits individuals whose visas were marked revoked or canceled as a result of EO-1 to obtain “a travel document confirming that the individual is permitted to travel to the United States and seek entry under the terms” of the revoked or canceled visa. 82 Fed. Reg. at 45,171. 13 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 16 of 173 who are admitted, paroled, or have a non-visa document permitting them to travel to the United States and seek entry valid or issued on or after the effective date of the Proclamation; any dual national traveling on a passport issued by a nondesignated country; any foreign national on a diplomatic visa; any refugee already admitted to the United States; or any individual granted asylum, withholding of removal, advance parole, or Convention Against Torture protection. Id. at 45,167– 68. Further, a consular officer, the Commissioner of U.S. Customs and Border Protection, or the Commissioner’s designee “may, in their discretion, grant waivers on a case-by-case basis to permit the entry of foreign nationals for whom entry is otherwise suspended or limited if such foreign nationals demonstrate that waivers would be appropriate and consistent” with certain specified guidelines. Id. at 45,168. II. Justiciability We first address several of the same justiciability arguments that we found unpersuasive in Washington v. Trump and Hawai‘i I. Once more, we reject the Government’s contentions. The Proclamation cannot properly evade judicial review. A. Ripeness 14 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 17 of 173 The Government argues that Plaintiffs’ claims are speculative and not ripe for adjudication until a specific applicant is denied a visa.5 We reject this argument. We conclude that the issues in this case are “fit for review,” and that significant hardship to Plaintiffs would result from “withholding court consideration” at this point. Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808, 812 (2003). “Ripeness is peculiarly a question of timing, designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1122 (9th Cir. 2009) (alteration and internal quotation marks omitted) (quoting Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000)). This case does not concern mere abstract disagreements. Instead, Plaintiffs challenge the Proclamation as implemented by the Department of State and the Department of Homeland Security. That is permissible. Under the traditional “pragmatic” approach to finality, an order may be immediately reviewable even if no “particular action [has been] brought against a particular [entity].” U.S. Army 5 The Government does not challenge Plaintiffs’ Article III standing on appeal. Nonetheless, we “have an obligation to consider Article III standing independently, as we lack jurisdiction when there is no standing.” Day v. Apoliona, 496 F.3d 1027, 1029 n.2 (9th Cir. 2007). For the reasons set forth in the district court’s order, we conclude that Plaintiffs have Article III standing. See Hawaiʻi TRO, 2017 WL 4639560, at *4–7. 15 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 18 of 173 Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1815 (2016) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 150 (1967)). Moreover, contrary to the Government’s position, the Proclamation’s waiver provisions are not a “sufficient safety valve” and do not mitigate the substantial hardships Plaintiffs have already suffered and will continue to suffer due to the Proclamation. Washington, 847 F.3d at 1168–69. Plaintiff Muslim Association of Hawaii, for example, has already lost members as a result of the Proclamation and its predecessors, and expects to lose more. The mere possibility of a discretionary waiver does not render Plaintiffs’ injuries “contingent [on] future events that may not occur.” Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotation marks omitted) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580–81 (1985)). “[W]ithholding court consideration” at this juncture would undoubtedly result in further hardship to Plaintiffs. See Nat’l Park Hosp. Ass’n, 538 U.S. at 808. We therefore conclude that Plaintiffs’ claims are ripe for review. B. Doctrine of Consular Nonreviewability As in the litigation over EO-1 and EO-2, the Government contends that we are precluded from reviewing the Proclamation by the consular nonreviewability doctrine. Under that doctrine, “the consular official’s decision to issue or withhold a visa is not subject either to administrative or judicial review.” Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986). In other words, “it is not 16 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 19 of 173 within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (emphasis added). Although the political branches’ power to exclude aliens is “largely immune from judicial control,” it is not entirely immune; such decisions are still subject to “narrow judicial review.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (citations omitted). Moreover, this case is not about individual visa denials, but instead concerns “the President’s promulgation of sweeping immigration policy.” Washington, 847 F.3d at 1162. Reviewing the latter “is a familiar judicial exercise,” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012); courts do not hesitate to reach “challenges to the substance and implementation of immigration policy.” Washington, 847 F.3d at 1163. Although “[t]he Executive has broad discretion over the admission and exclusion of aliens, [] that discretion is not boundless. It extends only as far as the statutory authority conferred by Congress and may not transgress constitutional limitations. It is the duty of the courts, in cases properly before them, to say where those statutory and constitutional boundaries lie.” Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986), aff’d by an equally divided court, 484 U.S. 1 (1987). The Government’s arguments to the contrary are foreclosed by Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187–88 (1993). In Sale, the Supreme 17 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 20 of 173 Court reviewed on the merits whether the President had violated the INA and the United States’ treaty obligations by invoking his authority under 8 U.S.C. § 1182(f) to “suspend[] the entry of undocumented aliens from the high seas.” Id. at 160. By reaching the merits, Sale necessarily first decided that the Court had jurisdiction to review whether the President’s orders under the color of § 1182(f) were ultra vires. See id. at 187–88. As in Sale, here we determine whether the Proclamation goes beyond the limits of the President’s power to restrict alien entry. Because Sale did not address the Court’s jurisdiction explicitly, the Government speculates that the Supreme Court “could have decided it was unnecessary to” reach this issue, “given that the Court agreed with the government on the merits.” We disagree. Instead, the argument “that a court may decide [questions on the merits] before resolving Article III jurisdiction” is “readily refuted.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998). “Without jurisdiction the court cannot proceed at all in any cause.” Id. at 94 (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)). “On every writ of error or appeal, the first and fundamental question is that of jurisdiction . . . .” Id. (quoting Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900)). While it is true that “drive-by jurisdictional rulings . . . have no precedential effect,” Sale was not a case where jurisdiction “had been assumed by the parties” and so went unaddressed. Id. at 91. To the contrary, as the Government concedes, the parties 18 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 21 of 173 in Sale thoroughly briefed and debated this issue. See U.S. Br. 13–18 (No. 92344); Resp. Br. 50–58 (No. 92-344); Reply Br. 1–4 (No. 92-344). Judicial review of the legality of the Proclamation respects our constitutional structure and the limits on presidential power. The consular nonreviewability doctrine arose to honor Congress’s choices in setting immigration policy—not the President’s. See Sing v. United States, 158 U.S. 538, 547 (1895). This doctrine shields from judicial review only the enforcement “through executive officers” of Congress’s “declared [immigration] policy,” id., not the President’s rival attempt to set policy. The notion that the Proclamation is unreviewable “runs contrary to the fundamental structure of our constitutional democracy.” 6 Washington, 847 F.3d at 1161. We have jurisdiction to review such an action, and we do so here. C. Cause of Action and Statutory Standing 6 The Government argues that the President, at any time and under any circumstances, could bar entry of all aliens from any country, and intensifies the consequences of its position by saying that no federal court—not a federal district court, nor our court of appeals, nor even the Supreme Court itself—would have Article III jurisdiction to review that matter because of the consular nonreviewability doctrine. United States Court of Appeals for the Ninth Circuit, 17-17168 State of Hawaii v. Donald Trump, YouTube (Dec. 7, 2017) at 13:01– 17:33, https://www.youtube.com/watch?v=9Q0p_B40Pa8. Particularly in the absence of an explicit jurisdiction-stripping provision, we doubt whether the Government’s position could be adopted without running roughshod over the principles of separation of powers enshrined in our Constitution. 19 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 22 of 173 The Government also contends that Plaintiffs’ statutory claims are unreviewable for lack of a cause of action and lack of statutory standing. We disagree. 1. APA Cause of Action We begin first by examining whether Plaintiffs’ claims are reviewable under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. Although the President’s actions fall outside the scope of direct review, see Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992), “[r]eview of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President’s directive,” id. at 828 (Scalia, J., concurring); see also Chamber of Commerce v. Reich, 74 F.3d 1322, 1324, 1328 (D.C. Cir. 1996) (holding that the court could review whether an executive order conflicted with a federal statute where plaintiffs had sought to enjoin executive branch officials implementing the order). Here, Plaintiffs bring suit not just against the President, but also against the entities charged with carrying out his instructions: the Department of State and the Department of Homeland Security. Further, because these agencies have “consummat[ed]” their implementation of the Proclamation, from which “legal consequences will flow,” their actions are “final” 20 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 23 of 173 and therefore reviewable under the APA.7 Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citation and internal quotation marks omitted). Finally, the Government argues that the APA precludes review of actions committed to “agency discretion by law,” 5 U.S.C. § 701(a)(2), and that the Proclamation is such an action. Plaintiffs counter that the Proclamation is not an unreviewable discretionary action, but rather is cabined by discernible constitutional and statutory limits. We are not persuaded by the Government’s characterization of the Proclamation as an action committed to the Executive’s discretion. This exception to the presumption of judicial review is “very narrow,” applying only where “statutes are drawn in such broad terms that . . . there is no law to apply.” Heckler v. Chaney, 470 U.S. 821, 830 (1985) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971)). It does not apply where, as here, a court is tasked with reviewing whether an executive action has exceeded statutory authority. See Assiniboine & Sioux Tribes v. Bd. of Oil & Gas Conservation, 792 F.2d 782, 791–92 (9th Cir. 1986) (collecting cases). 2. Zone of Interests The Government additionally argues that even if an APA cause of action exists, Plaintiffs cannot avail themselves of it because they do not fall within the 7 The Government contends that there is no “final” agency action here because Plaintiffs’ claims are unripe. For the reasons discussed previously, we reject this argument. 21 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 24 of 173 INA’s zone of interests. Once again, we are tasked with determining whether Plaintiffs’ interests “fall within the zone of interests protected by the law invoked.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1388 (2014) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). We conclude that Dr. Elshikh’s challenge to the Proclamation falls within the INA’s zone of interests. He asserts that the Proclamation prevents his brothersin-law from reuniting with his family. See Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469, 471–72 (D.C. Cir. 1995) (“The INA authorizes the immigration of family members of United States citizens and permanent resident aliens. In originally enacting the INA, Congress implemented the underlying intention of our immigration laws regarding the preservation of the family unit. Given the nature and purpose of the statute, the resident appellants fall well within the zone of interest Congress intended to protect.” (internal citations and alterations omitted)), vacated on other grounds, 519 U.S. 1 (1996). John Does 1 and 2 fall within the same zone of interest, alleging that they will be separated from family members—a son-in-law and a mother, respectively. The Government maintains that these interests are inadequate because a relative of an alien seeking admission has no right to participate in visa proceedings. Yet the Supreme Court has reviewed the merits of cases brought by U.S. residents with a specific interest in the entry of a foreigner, as have we. See, 22 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 25 of 173 e.g., Kerry v. Din, 135 S. Ct. 2128, 2131 (2015) (involving a challenge by U.S. citizen to denial of her husband’s visa); Kleindienst v. Mandel, 408 U.S. 753, 756– 60 (1972) (arising from a challenge by American professors to denial of visa to journalist invited to speak at academic events); Cardenas v. United States, 826 F.3d 1164, 1167 (9th Cir. 2016) (addressing a U.S. citizen’s challenge to denial of husband’s visa). In a case similar to the one before us, Legal Assistance for Vietnamese Asylum Seekers v. Department of State, the D.C. Circuit found that visa sponsors had standing to sue when they alleged that the State Department’s refusal to process visa applications resulted in an injury to the sponsors. 45 F.3d at 471–73. Likewise, Hawai‘i’s “efforts to enroll students and hire faculty members who are nationals from the six designated countries fall within the zone of interests of the INA.” Hawaiʻi I, 859 F.3d at 766. The INA clearly provides for the admission of nonimmigrant students into the United States. See 8 U.S.C. § 1101(a)(15)(F) (identifying students qualified to pursue a full course of study); 8 C.F.R. § 214.2(f) (providing the requirements for nonimmigrant students, including those in colleges and universities). The INA also provides that nonimmigrant scholars and teachers may be admitted into the United States. See, e.g., 8 U.S.C. § 1101(a)(15)(J) (identifying students, scholars, trainees, and professors in fields of specialized knowledge or skill, among others); id. § 23 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 26 of 173 1101(a)(15)(H) (identifying aliens working in specialty occupations); id. § 1101(a)(15)(O) (identifying aliens with extraordinary abilities in the sciences, arts, education, business, or athletics). As we have said before, “[t]he INA leaves no doubt” that Hawai‘i’s interests in “student- and employment-based visa petitions for its students and faculty are related to the basic purposes of the INA.” Hawaiʻi I, 859 F.3d at 766. Further, the Muslim Association of Hawai‘i (the “Association”) alleges that its members will suffer harms such as separation from their families, and that the Association itself will suffer the loss of its members if it is not granted a preliminary injunction. Once again, we conclude that “Plaintiffs’ claims of injury as a result of the alleged statutory violations are, at the least, ‘arguably within the zone of interests’ that the INA protects” and therefore judicially reviewable. Id. at 767 (quoting Bank of Am. Corp. v. City of Miami, — U.S. —, 137 S. Ct. 1296, 1303 (2017) (citation omitted) (emphasis added). 3. Equitable Cause of Action Even if there were no “final agency action” review under the APA, courts have also permitted judicial review of presidential orders implemented through the 24 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 27 of 173 actions of other federal officials.8 This cause of action, which exists outside of the APA, allows courts to review ultra vires actions by the President that go beyond the scope of the President’s statutory authority. See Reich, 74 F.3d at 1327–28 (citing Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108, 110 (1902) and Leedom v. Kyne, 358 U.S. 184, 188–89 (1958)) (permitting challenge to an Executive Order promulgated by the president and implemented by the Secretary of Labor, despite the lack of a final agency action under the APA); see also Duncan v. Muzyn, 833 F.3d 567, 577–79 (6th Cir. 2016); R.I. Dep’t Envtl. Mgmt. v. United States, 304 F.3d 31, 40–43 (1st Cir. 2002); cf. Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015) (citing McAnnulty for the proposition that federal courts may enjoin “violations of federal law by federal officials”). When, as here, Plaintiffs challenge the President’s statutory authority to issue the Proclamation, we are provided with an additional avenue by which to review these claims. Having concluded that Plaintiffs’ claims are justiciable, we now turn to the district court’s preliminary injunction. III. The Preliminary Injunction 8 The Supreme Court has decided the merits of such claims, including the specific claim that an action exceeded the authority granted under § 1182(f). See Sale, 509 U.S. at 187–88; see also Dames & Moore v. Regan, 453 U.S. 654 (1981). 25 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 28 of 173 A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 20. We may affirm the district court’s entry of the preliminary injunction “on any ground supported by the record.” Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 630 F.3d 1153, 1159 (9th Cir. 2011). A. Likelihood of Success on the Merits We consider first whether Plaintiffs are likely to succeed on the merits. In so doing, we consider four arguments9 advanced by Plaintiffs: (1) the President has exceeded his congressionally delegated authority under 8 U.S.C. § 1182(f); (2) the President has failed to satisfy § 1182(f)’s requirement that prior to suspending entry, the President must find that entry of the affected aliens would be detrimental to the interests of the United States; (3) the Proclamation’s ban on immigration from the designated countries violates 8 U.S.C. § 1152(a)(1)(A)’s prohibition on nationality-based discrimination; and (4) the President lacks the authority to issue 9 As we explain below, we decline to reach Plaintiffs’ arguments other than those listed here. 26 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 29 of 173 the Proclamation in the absence of a statutory grant. We address each in turn. 1. Scope of Authority under § 1182(f) In determining whether the President has the statutory authority to issue the Proclamation under 8 U.S.C. § 1182(f), we begin with the text. See Sale, 509 U.S. at 171; Haig v. Agee, 453 U.S. 280, 289–90 (1981). But our inquiry does not end there. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000); see also United States v. Witkovich, 353 U.S. 194, 199 (1957) (declining to “read in isolation and literally” an immigration statute that “appear[ed] to confer upon the Attorney General unbounded authority”). In Brown & Williamson, the Court looked beyond the “particular statutory provision in isolation,” and interpreted the statute to create a “symmetrical and coherent regulatory scheme.” 529 U.S. at 132–33. The Court thus undertook a holistic review, which entailed examining the statute’s legislative history, see id. at 146–47, “congressional policy,” id. at 139, and “common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude,” id. at 133. Taking guidance from the Court’s instructions in Brown & Williamson to look beyond the challenged “provision in isolation,” id. at 132, we conclude that the Proclamation is inconsistent not just with the text of § 1182(f), but with the statutory framework as a whole, legislative history, and prior executive practice. 27 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 30 of 173 Although no single factor may be dispositive, these four factors taken together strongly suggest that Plaintiffs are likely to succeed on their claim that the President has exceeded his delegated authority under section 1182(f). We discuss each factor in greater detail below. a. Statutory Text We turn first to the text of § 1182(f). The INA grants the President the power to “suspend the entry of . . . any class of aliens” “for such period as he shall deem necessary.” 8 U.S.C. § 1182(f) (emphasis added). We note at the outset that broad though the provision may be, the text does not grant the President an unlimited exclusion power. Congress’s choice of words is suggestive, at least, of its hesitation in permitting the President to impose entry suspensions of unlimited and indefinite duration. “The word ‘suspend’ connotes a temporary deferral.” Hoffman ex rel. N.L.R.B. v. Beer Drivers & Salesmen’s Local Union No. 888, 536 F.2d 1268, 1277 (9th Cir. 1976) (citing Webster’s Third New International Dictionary (1966) and Bouvier’s Law Dictionary (3d ed. 1914)). “[T]he word ‘period,’” in turn, “connotes a stated interval of time commonly thought of in terms of years, months, and days.” United States v. Updike, 281 U.S. 489, 495 (1930). This construction 28 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 31 of 173 of the term “period” is reinforced by the requirement that it be “necessary.” 10 § 1182(f). At argument, the Government contended that the indefinite duration of the Proclamation’s entry restrictions is consistent with the text of § 1182(f). United States Court of Appeals for the Ninth Circuit, 17-17168 State of Hawaii v. Donald Trump, YouTube (Dec. 7, 2017) at 22:45–23:15. Citing to § 4 of the Proclamation, which provides for a review of the restrictions every 180 days, the Government argued that because the suspensions will be “revisited” twice a year, the Proclamation is less indefinite than President Reagan’s and President Carter’s orders regarding Cubans and Iranians,11 respectively. Id. at 23:04–23:14. This argument is unpersuasive. The Government has repeatedly emphasized that the travel restrictions are necessary to incentivize and pressure foreign governments into improving their information-sharing and identity-management practices. This creates a peculiar situation where the restrictions may persist ad infinitum. To paraphrase a well- 10 As we discuss later, although prior executive orders or proclamations invoking § 1182(f) did not provide for a set end date, they were noticeably narrower in scope than the Proclamation. At the very least, Congress in adopting § 1182(f) likely did not contemplate that an executive order of the Proclamation’s sweeping breadth would last for an indefinite duration. 11 Proclamation 5517, 51 Fed. Reg. 30,470 (Aug. 22, 1986) (Cuba order); Exec. Order 12172, 44 Fed. Reg. 67,947 (Nov. 26, 1979) (Iran order), amended by Exec. Order 12206, 45 Fed. Reg. 24,101 (Apr. 7, 1980). 29 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 32 of 173 known adage, the Proclamation’s review process mandates that the restrictions will continue until practices improve. The Proclamation’s duration can be considered definite only to the extent one presumes that the restrictions will, indeed, incentivize countries to improve their practices. Where, as here, there is little evidence to support such an assumption, the Proclamation risks producing a virtually perpetual restriction—a result that the plain text of § 1182(f) heavily disfavors for such a far-reaching order.12 b. Statutory Framework We next examine the statutory framework of the INA. Brown & Williamson, 529 U.S. at 133. We first note that the Constitution gives Congress the primary, if not exclusive, authority to set immigration policy. See Arizona v. United States, 567 U.S. 387, 409 (2012) (citing Galvan v. Press, 347 U.S. 522, 531 (1954)); see also Fiallo, 430 U.S. at 792 (“[O]ver no conceivable subject is the legislative power of Congress more complete than it is over the admission of 12 Because issuing indefinite entry restrictions under these circumstances violates § 1182(f), we further view § 1182(f) as prohibiting a series of temporary bans when it appears such serial bans are issued to circumvent the bar on indefinite entry restrictions. See also Brief of T.A., a U.S. Resident of Yemeni Descent, as Amicus Curiae, Dkt. No. 41 at 7–8 (arguing that § 1182(f)’s use of the singular as it relates to “proclamation” and “period” is meaningful and precludes the use of serial bans to bypass the bar on indefinite suspensions, and noting that other provisions in § 1182 specifically use plural nouns to authorize multiple actions by the executive branch). 30 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 33 of 173 aliens.” (citation and internal quotation marks omitted)); Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320, 340 (1909) (“[T]he authority of Congress over the right to bring aliens into the United States embraces every conceivable aspect of that subject . . . .”). Congress has delegated substantial power in this area to the Executive Branch, but the Executive may not exercise that power in a manner that conflicts with the INA’s finely reticulated regulatory scheme governing the admission of foreign nationals. In line with this principle, the D.C. Circuit has held that the Executive cannot use general exclusionary powers conferred by Congress to circumvent a specific INA provision without showing a threat to public interest, welfare, safety or security that was independent of the specific provision. Abourezk, 785 F.2d at 1057–58. The Abourezk court reasoned that the Executive’s use of the general exclusionary provision to deny entry to members of groups proscribed in the specific provision would “rob [the general provision] of its independent scope and meaning,” render the specific provision superfluous, and conflict with limits that Congress imposed on the use of the specific provision. Id. at 1057. We agree with the D.C. Circuit’s approach and apply it to § 1182(f). We conclude that the Proclamation conflicts with the statutory framework of the INA by indefinitely nullifying Congress’s considered judgments on matters of immigration. The Proclamation’s stated purposes are to prevent entry of terrorists 31 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 34 of 173 and persons posing a threat to public safety, as well as to enhance vetting capabilities and processes to achieve that goal. See 82 Fed. Reg. at 45,161. Yet Congress has already acted to effectuate these purposes. As for the prevention of entry of terrorists and persons likely to pose publicsafety threats, Congress has considered these concerns, and enacted legislation to restrict entry of persons on those specific grounds. Under 8 U.S.C. § 1182(a)(3)(B), any alien who has “engaged in a terrorist activity” is inadmissible,13 unless the Secretary of State determines in his unreviewable discretion that the alien qualifies for a waiver. See id. § 1182(d)(3)(B). With regard to public safety, Congress has created numerous inadmissibility grounds, including an array of crime-related grounds. See, e.g., id. § 1182(a)(2)(A) (crime of moral turpitude or drug offense); § 1182(a)(2)(B) (two or more offenses for which the aggregate sentences were five years or more); § 1182(a)(2)(C) (drug trafficking or benefitting from a relative who recently trafficked drugs); § 1182(a)(2)(D) (prostitution or “commercialized vice”); § 1182(a)(2)(H) (human trafficking); § 1182(a)(2)(I) (money laundering); § 1182(a)(3) (“Security and related grounds”). 13 The term “engaged in a terrorist activity” is comprehensive. For example, “terrorist activity” includes any unlawful use of a weapon or dangerous device “other than for mere personal monetary gain,” and “[e]ngag[ing] in terrorist activity” includes providing “material support” for any “terrorist activity” or terrorist organization. See 8 U.S.C. § 1182(a)(3)(B)(iii)(V)(bb), (a)(3)(B)(iv). 32 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 35 of 173 With respect to the enhancement of vetting capabilities and processes, we likewise conclude that Congress has considered the reality that foreign countries vary with respect to information-sharing and identity-management practices, as well as terrorism risk. In fact, Congress addressed those concerns in a neighboring section, 8 U.S.C. § 1187 (the Visa Waiver Program or “VWP”), which was amended as recently as 2015 to address the heightened risk of terrorism in certain countries. See Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, Pub. L. No. 114-113, § 203, 129 Stat. 2242, 2989–91. Significantly, many of the criteria used to determine whether a foreign national’s country of origin qualifies for VWP treatment are replicated in the Proclamation’s list of baseline criteria. This includes that the countries use electronic passports, § 1187(a)(3)(B), report lost or stolen passports, § 1187(c)(2)(D), and not provide safe haven for terrorists, § 1187(a)(12)(D)(iii). See 82 Fed. Reg. 45,162. The Proclamation even makes participation in the Visa Waiver Program part of its criteria for evaluating countries. Id. at 45,162–63. The Government argues that the Visa Waiver Program is irrelevant because its “specific purpose” is the “facilitation of travel,” and therefore it does not foreclose the President from addressing the “separate issue of what to do about a country that fails so many criteria that its information-sharing practices and other risk factors are collectively inadequate.” This argument falls short. The Visa 33 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 36 of 173 Waiver Program’s travel facilitation purpose is notable, but not for the reason advanced by the Government. As we explained above, the Visa Waiver Program utilizes many of the same criteria relied upon by the Proclamation. Congress thus expressly considered the reality that countries vary with respect to informationsharing and identity-management practices, as well as terrorism risk. In response to that reality, Congress could have enacted measures restricting travel from countries with inadequate risk factors, taken no action, or enacted provisions facilitating travel from low-risk countries. In creating the Visa Waiver Program, Congress chose the third approach. In so doing, Congress necessarily determined that the interests of the United States would be better served by facilitating more travel, not less. By heavily restricting travel from the affected countries, the Proclamation thus conflicts with the purpose of the Visa Waiver Program. More broadly, the Government contends that Plaintiffs’ reliance on the statutory framework is misplaced because § 1182(f) empowers the President to issue “supplemental” admission restrictions when he finds that the national interest so warrants. Although true, this merely begs the question of whether the restrictions at issue here are “supplemental.” We conclude that the indefinite suspension of entry of all nationals from multiple countries, absent wartime or exigent circumstances, nullifies rather than “supplement[s]” the existing statutory scheme. The President is not foreclosed from acting to enhance vetting capabilities 34 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 37 of 173 and other practices in order to strengthen existing immigration law, but must do so in a manner consistent with Congress’s intent. Put another way, the President cannot effectively abrogate existing immigration law while purporting to merely strengthen it; the cure cannot be worse than the disease. Here, the President has used his § 1182(f) and § 1185(a) powers to nullify numerous specific provisions of the INA indefinitely with regard to all nationals of six countries, and has overridden Congress’s legislative responses to the same concerns the Proclamation aims to address. The Executive cannot without assent of Congress supplant its statutory scheme with one stroke of a presidential pen. c. Legislative History The legislative history suggests further limitations on § 1182(f)’s broad grant of authority. Prior to passing the INA, which included § 1182(f), the House of Representatives debated an amendment that would have continued to restrict the President’s authority to suspend immigration only “[w]hen the United States is at war or during the existence of a national emergency proclaimed by the President.” 98 Cong. Rec. 4423 (statement of Rep. Multer).14 Speaking in opposition to the 14 Section 1182(f)’s 1941 predecessor limited the president’s authority to suspend entry of aliens only to times of war or national emergency. See Act of June 21, 1941, 55 Stat. 252, 252–53. In anticipation of future immigration reform, the Senate Committee on the Judiciary published a comprehensive report in 1950 on the state of immigration laws in the country. See S. Rep. No. 81-1515, at 1–2 (1950). Although the report states that the committee was considering a provision that would “permit the President to suspend any and all immigration whenever he 35 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 38 of 173 ultimately unsuccessful amendment, the sponsor of the bill urged that § 1182(f)’s broad language was “absolutely essential,” because [W]hen there is an outbreak of an epidemic in some country, whence these people are coming, it is impossible for Congress to act. People might conceivably in large numbers come to the United States and bring all sorts of communicable diseases with them. More than that, suppose we have a period of great unemployment? In the judgment of the committee, it is advisable at such times to permit the President to say that for a certain time we are not going to aggravate that situation. Id. (statement of Rep. Walter) (emphasis added). Although Representative Walter and the bill’s supporters did not “intend[] [their] list of examples to be exhaustive,” Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 649 (1990), “it is significant that the example[s] Congress did give” all share the common trait of exigency. Moran v. London Records, Ltd., 827 F.2d 180, 183 (7th Cir. 1987). Proponents of § 1182(f) deliberately pinned the provision to examples where it would be difficult, if not impossible, for Congress to react in a timely manner, thus necessitating swift presidential action.15 The finds such action to be desirable in the best interests of the country,” it is unclear whether the report’s brief statement was in reference to what would eventually become § 1182(f) two years later. Id. at 381. More importantly, as Plaintiffs point out, none of the bill’s supporters affirmatively voiced such a broad interpretation of § 1182(f) when pressed on the matter by members of the opposition. 15 We note that hearings in 1970 and 1977 produced testimony from the Department of State that § 1182(f) (or § 212(f) of the INA) could be traced to “health prohibitions” even though the text does not explicitly limit executive use to exigencies, health or otherwise. See, e.g., United States-South African Relations: South Africa’s Visa Policy: Hearing Before the Subcomm. on Africa & Int’l Org. of 36 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 39 of 173 legislative history, then, suggests that despite § 1182(f)’s facially broad grant of power,16 the Proclamation—which cites to no exigencies, national or otherwise, and does not respond to a situation Congress would be ill-equipped to address— falls outside of the boundaries Congress set. d. Prior Executive Practice the Comm. on Int’l Relations H. Rep., 95th Cong. 10–11 (1977) (statement of Hon. Barbara M. Watson, Administrator, Bureau of Security and Consular Affairs, Dep’t of State). Considering the strength of legislative history supporting use of § 1182(f) to restrict entry during epidemics, it is noteworthy that a 2014 Congressional Research Service report cautioned that the provision could only “potentially” be used to prevent entry of “foreign nationals traveling from a particular country or region from which there has been an Ebola outbreak.” See Sarah A. Lister, Preventing the Introduction and Spread of Ebola in the United States: Frequently Asked Questions, Cong. Res. Serv. 3 (Dec. 5, 2014). The report noted that § 1182(f) had “never been employed so broadly” before. Id. 16 Several congressmen did express concerns prior to enactment that § 1182(f) would give the President “an untrammeled right, an uninhibited right to suspend immigration entirely.” 98 Cong. Rec. 4423 (statement of Rep. Celler). Their “fears and doubts,” however, “are no authoritative guide to the construction of legislation[,] [because] [i]n their zeal to defeat a bill, [opponents to a bill] understandably tend to overstate its reach.” Bryan v. United States, 524 U.S. 184, 196 (1998) (internal citations and quotation marks omitted). Moreover, there is some evidence that supporters of § 1182(f) and its predecessor provision believed the opposition’s concerns unreasonably presumed executive abuse of power. See 87 Cong. Rec. 5049 (1941) (statement of Rep. Bloom) (dismissing a representative’s concerns because “the gentleman is figuring on something that the President would not do”); see also 98 Cong. Rec. 4424 (statement of Rep. Halleck) (“I take it that the gentleman would not be concerned [about section 1182(f)] if he were sure he would always have a President that could not do any wrong”). 37 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 40 of 173 Notwithstanding the aforementioned factors, the Government argues that “[h]istorical practice confirms the breadth of, and deference owed to, the President’s exercise of authority under Sections 1182(f) and 1185(a)(1).” We pass no judgment on the legality or appropriateness of the Executive’s past practice, but we consider such practice to the extent it bears on congressional acquiescence. See Abourezk, 785 F.2d at 1055 (“[E]vidence of congressional acquiescence (or the lack thereof) in an administrative construction of the statutory language during the thirty-four years since the current act was passed could be telling.”); see also Zemel v. Rusk, 381 U.S. 1, 17–18 (1965) (“We have held . . . and reaffirm today, that the 1926 [Passport] Act must take its content from history: it authorizes only those passport refusals and restrictions ‘which it could fairly be argued were adopted by Congress in light of prior administrative practice.’” (quoting Kent v. Dulles, 357 U.S. 116, 128 (1958))). The Government is correct that presidents have suspended the entry of foreign nationals in various foreign policy and national security settings, but we nevertheless conclude that the Proclamation and its immediate predecessors, EO-1 and EO-2, stand apart in crucial respects. First, out of the forty-three proclamations or orders issued under § 1182(f) prior to EO-1, forty-two targeted only government officials or aliens who engaged in specific conduct and their associates or relatives. See Kate M. Manuel, Cong. Research Serv., R44743, 38 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 41 of 173 Executive Authority to Exclude Aliens: In Brief 6–10, (2017) (listing prior § 1182(f) proclamations and orders). Only one § 1182(f) proclamation suspended entry of all nationals of a foreign country. Proclamation 5517, issued in 1986, suspended entry of Cuban nationals as immigrants in response to the Cuba government’s own suspension of “all types of procedures regarding the execution” of an immigration agreement between the United States and Cuba. 51 Fed. Reg. 30,470 (Aug. 22, 1986). In addition, President Carter delegated authority under § 1185(a) to the Secretary of State and the Attorney General to prescribe limitations governing the entry of Iranian nationals, but did not ban Iranian immigrants outright. See Exec. Order 12172, 44 Fed. Reg. 67,947 (Nov. 26, 1979), amended by Exec. Order 12206, 45 Fed. Reg. 24,101 (Apr. 7, 1980). These isolated instances, which applied to a single country each and were never passed on by a court, cannot sustain the weight placed on them by the Government. See Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 169 (2001) (“Although we have recognized congressional acquiescence to administrative interpretations of a statute in some situations, we have done so with extreme care.”). Moreover, unlike the Proclamation, the Cuba and Iran orders were intended to address specific foreign policy concerns distinct from general immigration concerns already addressed by Congress. The same holds true for the vast majority 39 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 42 of 173 of prior § 1182(f) suspensions. See, e.g., Executive Order 13606, 77 Fed. Reg. 24,571 (Apr. 22, 2012) (suspending entry of persons who facilitated cyber-attacks and human rights abuses by the Syrian or Iranian governments); Proclamation 6925, 61 Fed. Reg. 52,233 (Oct. 3, 1996) (suspending entry of persons “who formulate, implement, or benefit from policies that impede Burma’s transition to democracy, and the immediate family members of such persons”); Proclamation 6569, 58 Fed. Reg. 31,897 (June 3, 1993) (suspending entry of persons “who formulate, implement, or benefit from policies that impede the progress of the negotiations designed to restore constitutional government to Haiti, and the immediate family members of such persons”). The only prior entry suspension lacking a foreign policy or national security purpose distinct from general immigration concerns is found in President Reagan’s High Seas Interdiction Proclamation and its implementing executive orders. That Proclamation suspended “entry of undocumented aliens from the high seas” and ordered that such entry “be prevented by the interdiction of certain vessels carrying such aliens.” Proclamation 4865, 46 Fed. Reg. 48,107 (Sep. 29, 1981). Consequently, Proclamation 4865 and its implementing executive orders, unlike the present Proclamation, applied by their terms almost entirely to aliens who were 40 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 43 of 173 already statutorily inadmissible.17 See id.; Exec. Order 12324, 46 Fed. Reg. 48,109 (Sep. 29, 1981); Exec. Order 12807, 57 Fed. Reg. 23,133 (May 24, 1992). We recognize that presidents ordinarily may use—and have used—§ 1182(f) to suspend the entry of aliens who might otherwise be admissible under the INA. But when, as here, a presidential proclamation addresses only matters of immigration already passed upon by Congress, the President’s § 1182(f) authority is at its nadir. The High Seas Interdiction suspensions are consistent with this principle because they apply predominantly to otherwise inadmissible aliens. In contrast, by suspending entry of a class of 150 million potentially admissible aliens, the Proclamation sweeps broader than any past entry suspension and indefinitely nullifies existing immigration law as to multiple countries. The Proclamation does so in the name of addressing general public-safety and terrorism threats, and what it deems to be foreign countries’ inadequate immigration-related practices— concerns that Congress has already addressed. 17 Under 8 U.S.C. § 1182(a)(7)(A)(i)(I), an alien who does not possess “a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document” is inadmissible. The High Seas Interdiction suspensions did, however, affect some aliens who could have become admissible insofar as the suspensions prevented refugees fleeing persecution from reaching United States territorial waters. See Sale, 509 U.S. at 187–88 (holding that barring the entry of refugees outside the territorial waters of the United States did not violate the INA or the United Nations Convention Relating to the Status of Refugees). 41 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 44 of 173 We conclude that the Executive’s past practice does not support the Government’s position. Instead, such practice merely confirms that the Proclamation, like EO-2, “is unprecedented in its scope, purpose, and breadth.” Hawai‘i I, 859 F.3d at 779. e. Constitutional Avoidance and Separation of Powers Principles of separation of powers further compel our conclusion that the Proclamation exceeds the scope of authority delegated to the President under § 1182(f). It is a bedrock principle of statutory interpretation that “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); see also INS v. St. Cyr, 553 U.S. 289, 300 (2001) (“[W]e are obligated to construe the statute to avoid [serious constitutional] problems.”). Here, a conclusion that the Proclamation does not exceed the President’s delegated authority under § 1182(f) would raise “serious constitutional problems” and should thus be avoided. See DeBartolo, 485 U.S. at 575. Reading § 1182(f) to permit the Proclamation’s sweeping exercise of authority would effectively render the statute void of a requisite “intelligible principle” delineating the “general policy” to be applied and “the boundaries of th[e] delegated authority,” Mistretta v. United 42 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 45 of 173 States, 488 U.S. 361, 372–73 (1989). Without any meaningful limiting principles,18 the statute would constitute an invalid delegation of Congress’s “exclusive[]” authority, Galvan, 347 U.S. at 531, to formulate policies regarding the entry of aliens. As discussed above, the Proclamation functions as an executive override of broad swaths of immigration laws that Congress has used its considered judgment to enact. If the Proclamation is—as the Government contends—authorized under § 1182(f), then § 1182(f) upends the normal functioning of separation of powers. Even Congress is prohibited from enabling “unilateral Presidential action that either repeals or amends parts of duly enacted statutes.” Clinton v. City of New York, 524 U.S. 417, 439 (1998). This is true even when the executive actions respond to issues of “first importance,” issues that potentially place the country’s “Constitution and its survival in peril.” Id. at 449 (Kennedy, J., concurring). In addressing such critical issues, the political branches still do not “have a somewhat free hand to reallocate their own authority,” as the “Constitution’s structure requires a stability which transcends the convenience of the moment” and was crafted in recognition that “[c]oncentration of power in the hands of a single branch is a threat to liberty.” Id. at 449–50. 18 These limiting principles are primarily found in the text of the statute, but also include the surrounding statutory framework, the legislative history, and prior executive practice. 43 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 46 of 173 And the Proclamation’s sweeping assertion of authority is fundamentally legislative in nature. Where an action “ha[s] the purpose and effect of altering the legal rights, duties and relations of persons, including the Attorney General, Executive Branch officials and [an alien], all outside the legislative branch,” the Supreme Court has held that the action is “essentially legislative in purpose and effect” and thus cannot bypass the “single, finely wrought and exhaustively considered, procedure” for enacting legislation.19 INS v. Chadha, 462 U.S. 919, 951–52 (1983). Here, the Proclamation does not merely alter the “legal rights, duties and relations” of a single alien, id. at 952, but rather affects the rights, duties and relations of countless American citizens and lawful permanent residents whose ability to be reunified with, and receive visits from, their family members is inhibited by the Proclamation; the Proclamation also significantly affects numerous officials within the Department of Homeland Security and Department of State. Whereas the House’s action in Chadha “operated . . . to overrule the Attorney General,” id., here the Proclamation would operate to overrule Congress’s “extensive and complex” scheme of immigration laws, Arizona, 567 U.S. at 395, as 19 Although the Government has not explained why the President has thus far failed to ask Congress to enact the Proclamation’s policies by legislation, potential congressional inaction cannot sustain the President’s authority to issue the Proclamation, as “[f]ailure of political will does not justify unconstitutional remedies” like violating the Constitution’s separation of powers. Clinton v. City of New York, 524 U.S. at 499 (Kennedy, J., concurring). 44 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 47 of 173 they pertain to the eight affected countries and the over 150 million affected individuals. Decades of Supreme Court precedent support reading meaningful limitations into § 1182(f) in order to avoid striking down the statute itself as an unconstitutional delegation. For example, in Zemel v. Rusk, the Court opted to read in limiting principles despite statutory language that, on its face, appeared to grant the Executive complete discretion: “The Secretary of State may grant and issue passports under such rules as the President shall designate and prescribe for and on behalf of the United States.” 381 U.S. at 7–8, 17. By so doing, the Court saved the statute from constituting “an invalid delegation.” Id. at 18. The Court noted that principles of separation of powers still apply even in the field of foreign relations, holding that “simply because a statute deals with foreign relations” does not mean that the statute “can grant the Executive totally unrestricted freedom of choice.” Id. at 17. Similarly, in United States v. Witkovich, the Court—faced with statutory language that “if read in isolation and literally, appears to confer upon the Attorney General unbounded authority”—nonetheless adopted a more “restrictive meaning” in order to avoid the “constitutional doubts” implicated by a “broader meaning.” 353 U.S. at 199. To avoid the inescapable constitutional concerns raised by the broad interpretation the Government urges us to adopt, we interpret § 1182(f) as 45 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 48 of 173 containing meaningful limitations—limitations that the Proclamation, in effectively rewriting the immigration laws as they pertain to the affected countries, exceeds. After all, “whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law.” Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2090 (2015). 2. Compliance with § 1182(f) We next turn to whether, even assuming the President did not exceed the scope of his delegated authority under § 1182(f), the Proclamation meets § 1182(f)’s requirement that the President find that the entry of certain persons “would be detrimental to the interests of the United States” prior to suspending their entry. 8 U.S.C. § 1182(f). Although we considered this question in Hawai’i I and ultimately answered it in the negative, 859 F.3d at 770–74, the Proclamation differs from EO-2 in several ways. As we discussed above, the Proclamation’s suspensions of entry apply indefinitely, rather than for only 90 days. Unlike EO-2, the Proclamation developed as a result of a multi-agency review. The justifications for the Proclamation are different, too. The Proclamation puts forth a national security interest in information sharing between other countries and the United States, explains that it imposes its restrictions as an incentive for other countries to meet the United States’ information-sharing protocols, and identifies “tailored” 46 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 49 of 173 restrictions for each designated country. And the list of affected countries differs from EO-2’s: the Proclamation adds Chad, removes Sudan, and includes two nonmajority Muslim countries, North Korea and Venezuela. Although there are some differences between EO-2 and the Proclamation, these differences do not mitigate the need for the President to satisfy § 1182(f)’s findings requirement. Despite our clear command in Hawai‘i I, the Proclamation—like EO-2—fails to “provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States.” Id. at 773. In assessing the scope of the President’s statutory authority, we begin with the text. The relevant portion of § 1182(f) states: Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. 8 U.S.C. § 1182(f). While § 1182(f) gives the President broad authority to suspend or place restrictions on the entry of aliens or classes of aliens, this authority is not unlimited. Section 1182(f) expressly requires that the President find that the entry of a class of aliens would be detrimental to the interests of the United States before the aliens in a class are excluded. The use of the word “find” was deliberate. 47 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 50 of 173 Congress used “find” rather than “deem” in the immediate predecessor to § 1182(f) so that the President would be required to “base his [decision] on some fact,” not on mere “opinion” or “guesses.” 87 Cong. Rec. 5051 (1941) (statements of Rep. Jonkman and Rep. Jenkins). By contrast, the Proclamation summarily concludes: “[A]bsent the measures set forth in this proclamation, the immigrant and nonimmigrant entry into the United States of persons described in section 2 of this proclamation would be detrimental to the interests of the United States.” 82 Fed. Reg. 45,161–62. The Proclamation points out that screening and vetting protocols enhance the Government’s ability to “detect foreign nationals who may commit, aid, or support acts of terrorism and other public-safety threats.” Id. at 45,162. It then asserts that the travel restrictions will encourage the targeted foreign governments to improve their information-sharing and identity-management protocols and practices. The degree of desired improvement is left unstated; there is no finding that the present vetting procedures are inadequate or that there will be harm to our national interests absent the Proclamation’s issuance. In assessing the merits of Plaintiffs’ motion for a preliminary injunction, the district court considered whether the Government had made the requisite findings for the President to suspend the entry of aliens under § 1182(f). Relying on our decision in Hawaiʻi I, the district court concluded that the Government had not. 48 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 51 of 173 Hawaiʻi TRO, 2017 WL 4639560, at *9–10. Although our prior decision in Hawai‘i I has since been vacated as moot, the Supreme Court “express[ed] no view on the merits” in ordering vacatur. Trump, 2017 WL 4782860, at *1. We therefore adopt once more the position we articulated in Hawai‘i I that § 1182(f) requires entry suspensions to be predicated on a finding of detriment to the United States. 859 F.3d at 773. The Government argues that the “detailed findings” in the Proclamation satisfy the standard we set forth in Hawai‘i I. Plaintiffs respond that the findings were inadequate because § 1182(f) expressly requires (1) “‘find[ings]’ that support the conclusion that admission of the excluded aliens would be ‘detrimental,’” and (2) “the harm the President identifies must amount to a ‘detriment to the interests of the United States.’” We agree with Plaintiffs. The Proclamation makes no finding whatsoever that foreign nationals’ nationality alone renders entry of this broad class of individuals a heightened security risk to the United States.20 Nor does it contain a finding that the nationality of the covered individuals alone renders their entry into the United States on certain forms of visas detrimental to the interests of the United States. As such, there is no stated connection between the scope of the restriction imposed 20 Rather, a declaration from former national security advisors—quoting a study from the Department of Homeland Security—states: “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.” 49 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 52 of 173 and a finding of detriment that the Government seeks to alleviate. While the district court may have imprecisely stated that the Proclamation was “unsupported by verifiable evidence,” Hawaiʻi TRO, 2017 WL 4639560, at *11, it was correct in concluding that the stated findings do not satisfy § 1182(f)’s prerequisites. To be sure, the Proclamation does attempt to rectify EO-2’s lack of a meaningful connection between listed countries and terrorist organizations. For instance, it cites to the fact that “several terrorist groups are active” in Chad. 82 Fed. Reg. at 45,165. But the Proclamation does not tie the nationals of the designated countries to terrorist organizations. For the second time, the Proclamation makes no finding that nationality alone renders entry of this broad class of individuals a heightened security risk or that current screening processes are inadequate.21 National security is not a “talismanic incantation” that, once invoked, can support any and all exercise of executive power under § 1182(f). United States v. Robel, 389 U.S. 258, 263–64 (1967). Section 1182(f) requires that the President make a finding that the entry of an alien or class of aliens would be detrimental to the interests of the United States. That requirement has not been met. 21 As the statistics provided by the Cato Institute demonstrate, no national from any of the countries selected has caused any of the terrorism-related deaths in the United States since 1975. See Brief of the Cato Institute as Amicus Curiae, Dkt. No. 84 at 26–28. 50 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 53 of 173 The Government argues that the district court erred by imposing a higher standard than that set forth in Hawai‘i I by objecting to the President’s stated reasons for the ban, by identifying internal inconsistencies, and by requiring verifiable evidence. We need not address the Government’s argument because, as discussed above, the Proclamation has failed to make the critical finding that § 1182(f) requires. We therefore hold that Plaintiffs have shown a likelihood of success on the merits of their § 1182(f) claim that the President has failed to make an adequate finding of detriment. 3. Section 1185(a) In addition to relying on § 1182(f), the Proclamation also grounds its authority in 8 U.S.C. § 1185(a), which states: Unless otherwise ordered by the President, it shall be unlawful [] for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe. 8 U.S.C. § 1185(a)(1). The Government does not argue that § 1185(a) provides an independent basis to suspend entry. Instead, the Government contends that § 1185(a) permits the President to skirt the requirements of § 1182(f) because § 1185(a) does not require a predicate finding before the President prescribes reasonable rules, regulations, and orders governing alien entry and departure. The Government also 51 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 54 of 173 argues that there is no meaningful standard for review because these matters are committed to the President’s judgment and discretion. Plaintiffs respond that the Government cannot use the general authority in § 1185(a) to avoid the preconditions of § 1182(f). We conclude that the Government cannot justify the Proclamation under § 1182(f) by using § 1185(a) as a backdoor. General grants in a statute are limited by more specific statutory provisions, and § 1182(f) has a specific requirement that there be a finding of detriment before entry may be suspended or otherwise restricted. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (“It is a commonplace of statutory construction that the specific governs the general.” (internal quotation marks and alterations omitted)). Section 1185(a) does not serve as a ground for reversal of the district court’s conclusion on Plaintiffs’ likelihood of success. 4. Section 1152(a)(1)(A)’s Prohibition on National Origin Discrimination Next, we consider the impact of 8 U.S.C. § 1152(a)(1)(A) on the President’s authority to issue the Proclamation. Section 1152(a) states: [N]o person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence. 8 U.S.C. § 1152(a)(1)(A) (emphasis added). 52 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 55 of 173 The Government argues that the district court erred by reading § 1152(a)(1)(A) to limit the President’s authority under § 1182(f), and that § 1152(a)(1)(A) has never been used as a constraint on the President’s authority under § 1182(f). In making this argument, the Government once again urges us to conclude that § 1152(a)(1)(A) operates in a separate sphere from § 1182(f). This we decline to do. Congress enacted § 1152(a)(1)(A) of the INA contemporaneously with the Civil Rights Act of 1964 and the Voting Rights Act of 1965 to eliminate the “national origins system as the basis for the selection of immigrants to the United States.” H.R. Rep. No. 89-745, at 8 (1965). In so doing, Congress manifested its intent to repudiate a history of nationality and race-based discrimination in United States immigration policy.22 See 110 Cong. Rec. 1057 (1964) (statement of Sen. 22 The discriminatory roots of the national origins system may be traced back to 1875, when xenophobia towards Chinese immigrants produced Congress’s first race-based immigration laws. See Brief of the National Asian Pacific American Bar Association as Amicus Curiae, Dkt. No. 126, at 5. The Page Law, passed in 1875, banned immigration of women—primarily Asian women—who were presumed, simply by virtue of their ethnicity and nationality, to be prostitutes. Id. at 5. The Page Law was followed in quick succession by the Chinese Exclusion Act in 1882 and the Scott Act in 1888. Id. at 6. These laws were justified on security grounds. See Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889) (declining to overturn the Scott Act because “the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security.”). This underlying xenophobia eventually produced the national origins system, which clearly signaled that “people of some nations [were] 53 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 56 of 173 Hart) (“[A]n immigration policy with different standards of admissibility for different racial and ethnic groups, in short, a policy with build-in bias, is contrary to our moral and ethical policy.”). Recognizing that “[a]rbitrary ethnic and racial barriers [had become] the basis of American immigration policy,” Senator Hart, the bill’s sponsor, declared that § 1152(a)(1)(A) was necessary “[t]o restore equality and fairplay in our selecting of immigrants.” Id. The Government argues that § 1152(a)(1)(A)’s prohibition of discrimination in the issuance of visas does not cabin the President’s authority to regulate entry under § 1182(f). We disagree. As the Government concedes, the Proclamation restricts the entry of affected aliens by precluding consular officers from issuing visas to nationals from the designated countries. See 82 Fed. Reg. at 45,168. Put another way, the Proclamation effectuates its restrictions by withholding immigrant visas on the basis of nationality. This directly contravenes Congress’s “unambiguous[] direct[ions] that no nationality-based discrimination . . . occur.” Legal Assistance for Vietnamese Asylum Seekers, 45 F.3d at 473. We are bound to give effect to “all parts of a statute, if at all possible.” Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 633 (1973). The Government’s position that § 1152(a)(1)(A) and § 1182(f) operate in different more welcome to America than others,” and created “token quotas” based on “implications of race superiority.” 110 Cong. Rec. 1057 (statement of Sen. Hart). 54 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 57 of 173 spheres—the former in issuance of immigrant visas, the latter in entry—would strip § 1152(a)(1)(A) of much of its power. It is difficult to imagine that Congress would have celebrated the passing of the bill as “one of the most important measures treated by the Senate . . . [for its] restate[ment] [of] this country’s devotion to equality and freedom” had it thought the President could simply use § 1182(f) to bar Asian immigrants with valid immigrant visas from entering the country. 111 Cong. Rec. 24785 (1965) (statement of Sen. Mansfield); see also Lyndon B. Johnson, Remarks at the Signing of the Immigration Bill, Liberty Island, New York, The Am. Presidency Project (Oct. 3, 1965), http://www. presidency.ucsb.edu/ws/index.php?pid=27292 (concluding that the discriminatory national origins quota system “will never again shadow the gate to the American Nation with the twin barriers of prejudice and privilege”). We do not think Congress intended § 1152(a)(1)(A) to be so easily circumvented. We therefore read § 1152(a)(1)(A) as prohibiting discrimination on the basis of nationality throughout the immigration visa process, including visa issuance and entry. 23 23 Even if we assume for the sake of argument that Congress intended § 1182(f) and § 1152(a)(1)(A) to operate in entirely separate spheres, as is argued by the Government, the result would be the same. This is so because both at oral argument and in the Proclamation’s text, the Government has conceded that if its entry ban were upheld, all embassy actions in issuing visas for nationals of the precluded countries would cease. 82 Fed. Reg. at 45,168 (noting that waiver by consular officers will be effective “both for the issuance of a visa and for any 55 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 58 of 173 To the extent that § 1152(a)(1)(A) conflicts with the broader grant of authority in § 1182(f) and § 1185(a), the Government asks us to give the latter two provisions superseding effect. The Government argues that as the more recently amended and “more specific” provision, § 1185(a) ought to control over § 1152(a)(1)(A). We are unpersuaded by this argument for several reasons. First, when two statutory provisions are in irreconcilable conflict, a laterenacted, more specific provision is treated as an exception to an earlier-enacted, general provision. See, e.g., Perez-Guzman v. Lynch, 835 F.3d 1066, 1075 (9th Cir. 2016); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 183–87 (2012). Section 1152(a)(1)(A) was enacted over a decade after § 1182(f). Section 1152(a)(1)(A) also operates at a greater level of specificity than either § 1182(f) or § 1185(a)—it eliminates nationality-based discrimination for the issuance of immigrant visas. Because the “specific provision is construed as an exception to the general one,” we agree with Plaintiffs that § 1152(a)(1)(A) provides a specific anti-discrimination bar to the President’s general § 1182(f) powers. RadLAX, 566 U.S. at 645. subsequent entry on that visa” (emphasis added)); United States Court of Appeals for the Ninth Circuit, 17-17168 State of Hawaii v. Donald Trump, YouTube (Dec. 7, 2017) at 9:55–11:33; 11:59–12:12. Enforcement of the entry ban under § 1182(f) would inescapably violate § 1152(a)(1)(A)’s prohibition on nationalitybased discrimination in the issuance of immigrant visas, because the Proclamation effectively bars nationals of the designated countries from receiving immigrant visas. 56 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 59 of 173 Second, § 1152(a)(1)(A) clearly provides for exceptions in a number of circumstances. See 8 U.S.C. §§ 1101(a)(27), 1151(b)(2)(A)(i), and 1153. Neither § 1182(f) nor § 1185(a) is included in the list of enumerated exceptions. We presume that Congress’s inclusion of specified items and exclusion of others is intentional. See United States v. Vance Crooked Arm, 788 F.3d 1065, 1075 (9th Cir. 2015) (“Under the longstanding canon expressio unius est exclusio alterius, we presume that the exclusion of . . . phrases” by Congress was intentional). The conspicuous absence of § 1182(f) and § 1185(a) from the listed exceptions vitiates the Government’s position that both provisions fall outside § 1152(a)(1)(A)’s purview. Lastly, the Government’s reliance on prior Executive practice is misplaced. The Government again points to President Reagan’s Proclamation 5517 suspending immigration from Cuba in response to Cuba’s own suspension of immigration practices, and President Carter’s Executive Order 12172 and the accompanying visa issuance regulations as to Iranian nationals during the Iran hostage crisis. As we explained above, supra at § III.A.1.d, those restrictions were never challenged in court and we do not pass on their legality now. Moreover, both orders are outliers among the forty-plus presidential executive orders restricting entry, and therefore cannot support a showing of congressional acquiescence. See Solid Waste Agency, 531 U.S. at 169. Finally, we need not 57 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 60 of 173 decide whether a President may, under special circumstances and for a limited time, suspend entry of all nationals from a foreign country. See IRAP v. Trump, No. TDC-17-0361, 2017 WL 4674314, at *21 (D. Md. Oct. 17, 2017). Such circumstances, if they exist, have not been argued here. For the reasons stated above, the Proclamation’s indefinite entry suspensions constitute nationality discrimination in the issuance of immigrant visas. We therefore conclude that Plaintiffs have shown a likelihood of success on the merits of their claim that the Proclamation runs afoul of § 1152(a)(1)(A)’s prohibition on nationality-based discrimination. 5. Alternative Authority Having concluded that the Proclamation violates the INA and exceeds the scope of the President’s delegated authority under § 1182(f), we view the Proclamation as falling into Justice Jackson’s third category from Youngstown Sheet & Tube Co. v. Sawyer: “[w]hen the President [has] take[n] measures incompatible with the expressed or implied will of Congress.” 343 U.S. 579, 637 (1952) (Jackson, J., concurring). Under Youngstown’s tripartite framework, presidential actions that are contrary to congressional will leave the President’s “power [] at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. We therefore must determine whether the President has constitutional authority to issue 58 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 61 of 173 the Proclamation, independent of any statutory grant—for if he has such power, it may be immaterial that the Proclamation violates the INA. But when a President’s action falls into “this third category, the President's asserted power must be both ‘exclusive’ and ‘conclusive’ on the issue” in order to succeed. Zivotofsky ex rel. Zivotofsky, 135 S. Ct. at 2084. We conclude that the President lacks independent constitutional authority to issue the Proclamation, as control over the entry of aliens is a power within the exclusive province of Congress.24 See Galvan, 347 U.S. at 531 (“[T]he formulation of these [immigration] policies is entrusted exclusively to Congress”); see also Arizona, 567 U.S. at 407 (citing Galvan, 347 U.S. at 531). While the Supreme Court’s earlier jurisprudence contained some ambiguities on the division of power between Congress and the Executive on immigration,25 the Court has 24 In Hawai’i I, we opted not to decide the question of “whether and in what circumstances the President may suspend entry under his inherent powers as commander-in-chief or in a time of national emergency.” 859 F.3d 741, 782 n.21 (9th Cir. 2017). In holding today that the President lacked independent constitutional authority to issue the Proclamation, we again need not, and do not, decide whether the President may be able to suspend entry pursuant to his constitutional authority under any circumstances (such as in times of war or national emergency), as the Proclamation was issued under no such exceptional circumstances. 25 See Adam B. Cox & Cristina M. Rodriguez, The President and Immigration Law, 119 Yale L.J. 458, 467–482 (2009) (examining the Supreme Court’s shift from viewing authority over immigration as ambiguously belonging to the political branches—without specifying the allocation of power between the two—to increasingly identifying control over immigration as the province of Congress). 59 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 62 of 173 more recently repeatedly recognized congressional control over immigration policies. See, e.g., Chadha, 462 U.S. at 940 (“The plenary authority of Congress over aliens under Art. I, § 8, cl. 4 is not open to question”); Fiallo, 430 U.S. at 793 (recognizing “the need for special judicial deference to congressional policy choices in the immigration context”); Galvan, 347 U.S. at 531–32 (“[T]hat the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government . . . . [we] must therefore under our constitutional system recognize congressional power in dealing with aliens.”). Exclusive congressional authority over immigration policy also finds support in the Declaration of Independence itself, which listed “obstructing the Laws for Naturalization of Foreigners” and “refusing to pass [laws] to encourage their migrations hither” as among the acts of “absolute Tyranny” of “the present King of Great Britain.” The Declaration of Independence para. 2 (U.S. 1776). As Justice Jackson noted in Youngstown, “The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image.” 343 U.S. at 641 (Jackson, J., concurring). This is perhaps why the Constitution vested Congress with the power to “establish an uniform Rule of Naturalization”: the 60 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 63 of 173 Framers knew of the evils that could result when the Executive exerts authority over the entry of aliens, and so sought to avoid those same evils by granting such powers to the legislative branch instead. See U.S. Const. art. I, § 8, cl. 4. B. Remaining Preliminary Injunction Factors The three remaining preliminary injunction factors also lead us to affirm the preliminary injunction. Plaintiffs have successfully shown that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that the preliminary injunction is in the public interest. Winter, 555 U.S. at 20. 1. Irreparable Harm The Government argues that Plaintiffs will suffer “no cognizable harm” absent the injunction because the Proclamation may only “delay” their relatives, students and faculty, and members from entering the United States. Indefinite delay, however, can rise to the level of irreparable harm. See, e.g., CBS, Inc. v. Davis, 510 U.S. 1315, 1318 (1994) (Blackmun, J., in chambers) (granting emergency stay from preliminary injunction because the “indefinite delay” of a broadcast would cause “irreparable harm to the news media”). This is one such instance. Plaintiffs have presented evidence that the Proclamation will result in “prolonged separation from family members, constraints to recruiting and retaining 61 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 64 of 173 students and faculty members to foster diversity and quality within the University community, and the diminished membership of the Association,” the last of which “impacts the vibrancy of [the Association’s] religious practices and instills fear among its members.” Hawaiʻi TRO, 2017 WL 4639560, at *13. As we have said before, “[m]any of these harms are not compensable with monetary damages and therefore weigh in favor of finding irreparable harm.” Hawaiʻi I, 859 F.3d at 782– 83; see also Washington, 847 F.3d at 1168–69 (“[T]he States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad.”); Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017) (characterizing the “collateral harms to children of detainees whose parents are detained” as an irreparable harm); Regents of Univ. of Cal. v. Am. Broad. Cos., Inc., 747 F.2d 511, 520 (9th Cir. 1984) (crediting intangible harms such as the “impairment of their ongoing recruitment programs [and] the dissipation of alumni and community goodwill and support garnered over the years”); cf. Moore v. East Cleveland, 431 U.S. 494, 503–04 (1977) (explaining that “the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition”). We therefore conclude that Plaintiffs are likely to suffer irreparable harm in the absence of the preliminary injunction. 2. Balance of Equities 62 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 65 of 173 We next conclude that the district court correctly balanced the equities in this case. When considering the equities of a preliminary injunction, we must weigh the “competing claims of injury” and “consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24 (citation omitted). In contrast to Plaintiffs’ concrete allegations of harm, the Government cites to general national security concerns.26 National security is undoubtedly a paramount public interest, see Haig, 453 U.S. at 307 (“[N]o governmental interest is more compelling than the security of the Nation.”), but it cannot be used as a “talisman . . . to ward off inconvenient claims.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (2017); cf. New York Times Co. v. United States, 403 U.S. 713, 719 (1971) (Black, J., concurring) (describing “security” as a “broad, vague generality whose contours should not be invoked to abrogate” the law). When, as here, the President has failed to make sufficient findings that the “entry of certain classes of aliens would be detrimental to the national interest,” “we cannot conclude that national security interests outweigh the harms to Plaintiffs.” Hawaiʻi I, 859 F.3d at 783. 26 The Government additionally argues that “[t]he injunction . . . causes irreparable injury by invalidating an action taken at the height of the President’s authority.” Not so. For the reasons discussed earlier, by acting in a manner incompatible with Congress’s will, the President’s power here is “at its lowest ebb.” Youngstown, 343 U.S. at 638 (Jackson, J., concurring). 63 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 66 of 173 The injunction here would only preserve the status quo as it existed prior to the Proclamation while the merits of the case are being decided. We think it significant that the Government has been able to successfully screen and vet foreign nationals from the countries designated in the Proclamation under current law for years. See Brief of the Cato Institute as Amicus Curiae, Dkt. No. 84 at 26– 27 (explaining that, from 1975 through 2017, "no one has been killed in a terrorist attack on U.S. soil by nationals from any of the eight Designated Countries"); id. at 29 (showing that the U.S. incarceration rate for persons born in the designated countries is lower than the U.S. incarceration rates for persons born in the U.S. or other non-U.S. countries). Accordingly, the balance of equities tips in Plaintiffs’ favor. 3. Public Interest Lastly, we consider whether Plaintiffs have successfully shown that “an injunction is in the public interest.” Winter, 555 U.S. at 20. We conclude that they have. It is axiomatic that the President must exercise his executive powers lawfully. When there are serious concerns that the President has not done so, the public interest is best served by “curtailing unlawful executive action.” Texas v. United States, 809 F.3d 134, 187 (5th Cir. 2015), aff’d by an equally divided court 136 S. Ct. 2271 (2016). Amici provide further insight into the public interests that 64 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 67 of 173 would be served by sustaining the district court’s injunction. They have furnished us with a plethora of examples, of which we highlight a few. Amici persuasively cite to increased violence directed at persons of the Muslim faith as one of the Proclamation’s consequences. See Brief of Civil Rights Organizations as Amici Curiae, Dkt. No. 52 at 19–23; Brief of Members of the Clergy et al. as Amici Curiae, Dkt. No. 97 at 29–32. Amici also explain that by singling out nationals from primarily Muslim-majority nations, the Proclamation has caused Muslims across the country to suffer from psychological harm and distress, including growing anxiety, fear, and terror. Brief of Muslim Justice League et al. as Amici Curiae, Dkt. No. 68 at 21–23. In assessing the public interest, we are reminded of Justice Murphy’s wise words: “All residents of this nation are kin in some way by blood or culture to a foreign land.” Korematsu v. United States, 323 U.S. 214, 242 (Murphy, J., dissenting). It cannot be in the public interest that a portion of this country be made to live in fear. We note, too, that the cited harms are extensive and extend beyond the community. As Amici point out, the Proclamation, like its predecessors, “continues to disrupt the provision of medical care” and inhibits “the free exchange of information, ideas, and talent between the designated countries and [various] [s]tates, causing long-term economic and reputational damage.” Brief of New 65 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 68 of 173 York et al. as Amici Curiae, Dkt. No. 71 at 4. Moreover, because the Proclamation bans the entry of potential entrepreneurs, inventers, and innovators, the public’s interest in innovation is thwarted at both the state and corporate levels. See Brief of Technology Companies as Amici Curiae, Dkt. No. 99 at 5–7. The Proclamation further limits technology companies’ abilities to hire to full capacity by barring nationals of the designed countries from filling vacant positions. See Brief of Massachusetts Technology Leadership Council as Amicus Curiae, Dkt. No. 120 at 8–16 (explaining that “the technology industry is growing too rapidly to be staffed through domestic labor alone”). The Proclamation also risks denying lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) individuals in the United States the opportunity to reunite with their partners from the affected nations. See Brief of Immigration Equality et al. as Amici Curiae, Dkt. No. 101 at 17–20. The Proclamation allows that it “may be appropriate” to grant waivers to foreign nationals seeking to reside with close family members in the United States. 82 Fed. Reg. at 45,168–69. But many of the affected nations criminalize homosexual conduct, and LGBTQ aliens will face heightened danger should they choose to apply for a visa from local consular officials on the basis of their same-sex relationships. Brief of Immigration Equality at 4. The public interest is not served by denying LGBTQ persons in the United States the ability to safely bring their partners home to them. 66 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 69 of 173 *** For the foregoing reasons, we conclude that the district court did not abuse its discretion in granting an injunction. C. Scope of the Preliminary Injunction The Government argues that the injunction is overbroad because it is not limited to redressing the Plaintiffs’ “own cognizable injuries.” Plaintiffs argue that the nationwide scope of the injunction is appropriate particularly in the immigration context because piecemeal relief would fragment immigration policy. Plaintiffs further argue that it would be impracticable or impossible for them to name all those who would apply to the University of Hawai‘i or the Association, but who have been chilled or prevented by the Proclamation from doing so. We review the scope of a preliminary injunction for abuse of discretion. McCormack v. Hiedeman, 694 F.3d 1004, 1010 (9th Cir. 2012). Although the district court has “considerable discretion in fashioning suitable relief and defining the terms of an injunction,” Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991), there are limitations on this discretion. Injunctive relief must be “tailored to remedy the specific harm[s]” shown by the plaintiffs. Id. Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights. See Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th Cir. 1987) (“[A]n injunction is not necessarily 67 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 70 of 173 made over-broad by extending benefit or protection to persons other than prevailing parties in the lawsuit—even if it is not a class action—if such breadth is necessary to give prevailing parties the relief to which they are entitled.”). “[T]he Constitution requires ‘an uniform Rule of Naturalization’; Congress has instructed that ‘the immigration laws of the United States should be enforced vigorously and uniformly’; and the Supreme Court has described immigration policy as ‘a comprehensive and unified system.’” Texas, 809 F.3d at 187–88 (citations omitted). Any application of § 2 of the Proclamation would exceed the scope of § 1182(f), violate § 1152(a)(1)(A), and harm Plaintiffs’ interests. Accordingly, the district court did not abuse its discretion by granting a nationwide injunction. Although a nationwide injunction is permissible, a worldwide injunction as to all nationals of the affected countries extends too broadly. As the Supreme Court observed in IRAP: “The equities relied on by the lower courts do not balance the same way in that context.” 137 S. Ct. at 2088. “[W]hatever burdens may result from enforcement of § 2(c) against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified [previously].” Id. “At the same time, the Government’s interest in enforcing § 2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States.” Id. 68 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 71 of 173 We therefore narrow the scope of the preliminary injunction, as we did in our November 13, 2017 order on the Government’s motion for emergency stay. See Hawai‘i v. Trump, 2017 WL 5343014, at *1. We then wrote: The preliminary injunction is stayed except as to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” as set out below. The injunction remains in force as to foreign nationals who have a “close familial relationship” with a person in the United States. Such persons include grandparents, grandchildren, brothers-in-law, sistersin-law, aunts, uncles, nieces, nephews, and cousins. “As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [Proclamation 9645].” Id. (internal citations omitted). We again limit the scope of the district court’s injunction to those persons who have a credible bona fide relationship with a person or entity in the United States. The injunction remains in force as to foreign nationals who have a “close familial relationship” with a person in the United States, including grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins. As for entities, the relationship must be formal, documented, and formed in the ordinary course of business, rather than for the purpose of evading the Proclamation. IV. Establishment Clause Claim 69 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 72 of 173 Plaintiffs argue that the Proclamation also violates the Establishment Clause of the United States Constitution. They urge us to adopt the view taken by the en banc Fourth Circuit in its review of EO-2 that “the reasonable observer would likely conclude that EO-2’s primary purpose [was] to exclude persons from the United States on the basis of their religious beliefs.” IRAP, 857 F.3d at 601. Because we conclude that the district court did not abuse its discretion in granting the preliminary injunction relying on Plaintiffs’ statutory claims, we need not and do not consider this alternate constitutional ground. See Am. Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 161 (1989) (“Particularly where, as here, a case implicates the fundamental relationship between the Branches, courts should be extremely careful not to issue unnecessary constitutional rulings.”). V. Conclusion For all of these reasons, we affirm in part and vacate in part the district court’s preliminary injunction order. We narrow the scope of the injunction to give relief only to those with a credible bona fide relationship with the United States, pursuant to the Supreme Court’s decision in IRAP, 137 S. Ct. at 2088. In light of the Supreme Court’s order staying this injunction pending “disposition of the Government’s petition for a writ of certiorari, if such writ is sought,” we stay our decision today pending Supreme Court review. Trump v. Hawai‘i, No. 17A550, — S. Ct. —, 2017 WL 5987406 (Dec. 4, 2017). Because we conclude 70 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 73 of 173 that Plaintiffs have shown a likelihood of success on their statutory claims, we need not reach their constitutional claims. AFFIRMED IN PART, VACATED IN PART. 71 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 74 of 173 Counsel page Hashim M. Mooppan (argued), Deputy Assistant Attorney General; Sharon Swingle, H. Thomas Byron III, and Lowell V. Sturgill Jr., Appellate Staff; Chad A. Readler, Acting Assistant Attorney General; Jeffrey B. Wall and Edwin S. Kneedler, Deputy Solicitors General; Noel J. Francisco, Solicitor General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants. Mitchell P. Reich (argued), Neal Kumar Katyal (argued), Colleen Roh Sinzdak, Elizabeth Hagerty, Yuri S. Fuchs, Sundeep Iyer, and Reedy C. Swanson, Hogan Lovells US LLP, Washington, D.C.; Thomas P. Schmidt, Hogan Lovells US LLP, New York, New York; Sara Solow and Alexander B. Bowerman, Hogan Lovells US LLP, Philadelphia, Pennsylvania; Deirdre Marie-Iha, Donna H. Kalama, Kimberly T. Guidry, Robert T. Nakatsuji, Kaliko‘Onalani D. Fernandes, and Kevin M. Richardson, Deputy Attorneys General; Clyde J. Wadsworth, Solicitor General; Douglas S. Chin, Attorney General; Department of the Attorney General, Honolulu, Hawaii; for Plaintiffs-Appellees. Eric T. Schneiderman, Attorney General; Barbara D. Underwood, Solicitor General; Anisha S. Dasgupta, Deputy Solicitor General; Zainab A. Chaudhry, Assistant Solicitor General of Counsel; Office of the Attorney General, New York, New York; Lisa Madigan, Attorney General; David L. Franklin, Solicitor General; Office of the Attorney General, Chicago, Illinois; Xavier Becerra, Attorney General, Office of the Attorney General, Sacramento, California; George Jepsen, Attorney General, Office of the Attorney General, Hartford, Connecticut; Matthew P. Denn, Attorney General, Delaware Department of Justice, Wilmington, Delaware; Thomas J. Miller, Attorney General, Office of the Attorney General, Des Moines, Iowa; Janet T. Mills, Attorney General, Office of the Attorney General, Augusta, Maine; Brian E. Frosh, Attorney General, Attorney General’s Office, Baltimore, Maryland; Maura Healey, Attorney General, Attorney General’s Office, Boston, Massachusetts; Hector Balderas, Attorney General, Office of the Attorney General, Santa Fe, New Mexico; Ellen F. Rosenblum, Attorney General, Office of the Attorney General, Salem, Oregon; Peter F. Kilmartin, Attorney General, Office of the Attorney General, Providence, Rhode Island; Thomas J. Donovan Jr., Attorney General, Office of the Attorney General, Montpelier, Vermont; Mark R. Herring, Attorney General, Office of the Attorney General, Richmond, Virginia; Robert W. Ferguson, Attorney General, Office of the Attorney General, Seattle, Washington; Karl A. Racine, Attorney General, Office of the Attorney General, Washington, D.C.; for Amici Curiae States of New York, Illinois, California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, and Washington, the Commonwealth of Virginia, and the District of Columbia. Scott A. Keller, Solicitor General; J. Campbell Barker, Deputy Solicitor General; Ari Cuenin, Assistant Solicitor General; Ken Paxton, Attorney General; Jeffrey C. Mateer, First Assistant Attorney General; Office of the Attorney General, Austin, Texas; for Amici Curiae States of Texas, Alabama, Arizona, Arkansas, Florida, Kansas, Louisiana, Missouri, Ohio, Oklahoma, South Carolina, and West Virginia. 72 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 75 of 173 Richard D. Bernstein, Willkie Farr & Gallagher LLP, Washington, D.C., for Amicus Curiae T.A., a U.S. Resident of Yemeni Descent. Amir H. Ali, Washington, D.C., as and for Amicus Curiae Roderick & Solange MacArthur Justice Center. Nicole G. Berner, Deborah L. Smith, and Leo Gertner, Service Employees International Union, Washington, D.C.; Judith Rivlin, American Federation of State, County and Municipal Employees, Washington, D.C.; David J. Strom, American Federation of Teachers, AFL-CIO, Washington, D.C.; Jody Calemine, Communications Workers of America, Washington, D.C.; Niraj R. Ganatra and Ava Barbour; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America; Detroit, Michigan; Mario Martínez, Martínez Aguilasocho & Lynch APLC, Bakersfield, California; Nicholas Clark, United Food and Commercial Workers, Washington, D.C.; for Amici Curiae International Labor Organizations. Lynne Bernabei and Alan R. Kabat, Bernabei & Kabat PLLC, Washington, D.C., for Amici Curiae Civil Rights Organizations. Aaron X. Fellmeth, Sandra Day O’Connor College of Law, Arizona State University, Phoenix, Arizona; Joseph M. McMillan and Michelle L. Maley, Perkins Coie LLP, Seattle, Washington; for Amici Curiae International Law Scholars and Nongovernmental Organizations. Benjamin G. Schatz, Amy Briggs, John W. McGuinness, Sirena Castillo, Matthew Bottomly, Olufunmilayo Showole, Ketakee Kane, and Eve Torres, Manatt Phelps & Phillips LLP, Los Angeles, California, for Amici Curiae Muslim Justice League, Muslim Public Affairs Council, and Council of American-Islamic Relations California. Marc A. Hearron, Sophia M. Brill, and Sandeep N. Nandivada, Morrison & Foerster LLP, Washington, D.C.; Jennifer K. Brown and Amanda Aikman, Morrison & Foerster LLP, New York, New York; Purvi G. Patel, Morrison & Foerster LLP, Los Angeles, California; for Amici Curiae Interfaith Group of Religious and Interreligious Organizations and Clergy Members. Fatma Marouf, Fort Worth, Texas; Sabrineh Ardalan, Philip L. Torrey, Nathan MacKenzie, Dalia Deak, Niku Jafarnia, and Rachel Kroll, Cambridge, Massachusetts; Geoffrey Hoffman, Houston, Texas; Karla McKanders, Nashville, Tennessee; for Amici Curiae Immigration Law Scholars on Statutory Claims. Donald Francis Donovan, David W. Rivkin, Jennifer R. Cowan, and Elizabeth Nielsen, Debevoise & Plimpton LLP, New York, New York; Ilana H. Eisenstein, John M. Leitner, and Ryan S. Macpherson, DLA Piper LLP (US), Philadelphia, Pennsylvania; for Amicus Curiae International Bar Association’s Human Rights Institute. Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans, Constitutional Accountability Center, Washington, D.C.; Raymond H. Brescia, Albany, New York; Peter Karanjia and Geoffrey Brounell, Davis Wright Tremaine LLP, Washington, D.C.; Victor A. Kovner, Davis Wright Tremaine LLP, New York, New York; for Amici Curiae Members of Congress. 73 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 76 of 173 Christopher J. Hajec, Julie B. Axelrod, Michael M. Hethmon, Elizabeth A. Hohenstein, and Mark S. Venezia, Washington, D.C., as and for Amicus Curiae Immigration Reform Law Institute. Cameron C. Russell, David Y. Livshiz, and Karen Wiswall, Freshfields Bruckhaus & Deringer US LLP, New York, New York; Daniel Braun and Peter Jaffe, Freshfields Bruckhaus & Deringer US LLP, Washington, D.C.; for Amicus Curiae The Cato Institute. Meir Feder, Rasha Gerges Shields, and Rajeev Mittreja, Jones Day, New York, New York; Catherine Y. Kim, New York, New York; Judith Resnik, New Haven, Connecticut; Burt Neuborne, New York, New York; Lucas Guttentag, Palo Alto, California; for Amici Curiae Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law. Lindsay C. Harrison, Thomas J. Perrilli, and Tassity S. Johnson, Jenner & Block LLP, Washington, D.C.; for Amici Curiae Boston University, Brandeis University, Brown University, Bucknell University, Carnegie Mellon University, Case Western Reserve University, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, George Washington University, Georgetown University, Harvard University, Johns Hopkins University, Massachusetts Institute of Technology, Middlebury College, Northeastern University, Northwestern University, Princeton University, Rice University, Stanford University, Tufts University, University of Chicago, University of Michigan, University of Pennsylvania, University of Southern California, Vanderbilt University, Washington University, Worcester Polytechnic Institute, and Yale University. Benna Ruth Solomon, Deputy Corporation Counsel; Edward N. Siskel, Corporation Counsel; Andrew W. Worseck, Chief Assistant Corporation Counsel; Carl Newman, Sara K. Hornstra, and Jonathon D. Byrer, Assistant Corporation Counsel; Department of Law, Chicago, Illinois; Nick Kahlon, Riley Safer Holmes & Cancila LLP, Chicago, Illinois; Ryan P. Poscablo, Brian Neff, and Eliberty Lopez, Riley Safer Holmes & Cancila LLP, New York, New York; Michael N. Feuer, Los Angeles City Attorney, Los Angeles, California; Zachary W. Carter, Corporation Counsel, New York Law Department, New York, New York; Sozi Pedro Tulante, City Solicitor, Law Department, Philadelphia, Pennsylvania; John Danial Reaves, Washington, D.C.; for Amici Curiae Chicago, Los Angeles, New York, Philadelphia, and other Cities and Counties, joined by the U.S. Conference of Mayors. Richard B. Katskee, Eric Rothschild, and Kelly M. Percival, Americans United for Separation of Church and State, Washington, D.C.; Elliot M. Mincberg and Diane Laviolette, People for the American Way Foundation, Washington, D.C.; Gillian B. Gillers, Kristi L. Graunke, and Naomi R. Tsu, Southern Poverty Law Center, Decatur, Georgia; Susan L. Sommer, Lambda Legal Defense and Education Fund Inc., New York, New York; Camilla B. Taylor, Lambda Legal Defense and Education Fund Inc., Chicago, Illinois; Sharon M. McGowan, Lambda Legal Defense and Education Fund Inc., Washington, D.C.; Jennifer C. Pizer, Lamba Legal Defense and Education Fund Inc., Los Angeles, California; for Amici Curiae Members of the Clergy, Americans United for Separate of Church and State, Bend the Arc, A Jewish Partnership for Justice, Central Conference of American Rabbis, Lambda Legal Defense and Education Fund 74 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 77 of 173 Inc., People for the American Way Foundation, Riverside Church in the City of New York, Southern Poverty Law Center, Union for Reform Judaism, and Women of Reform Judaism. Andrew J. Pincus, Paul W. Hughes, and John T. Lewis, Mayer Brown LLP, Washington, D.C., for Amici Curiae Technology Companies. Pratik A. Shah and Martine E. Cicconi, Washington, D.C.; Robert S. Chang and Lorraine K. Bannai, Ronald A. Peterson Law Clinic, Seattle University School of Law, Seattle, Washington; Eric Yamamoto, Fred T. Korematsu Professor of Law and Social Justice, William S. Richardson School of Law, University of Hawaii, Honolulu, Hawaii; Robert L. Rusky, San Francisco, California; Dale Minami and Donald K. Tamaki, Minami Tamaki LLP, San Francisco, California; Peter Irons, Director Emeritus, Earl Warren Bill of Rights Project, University of California at San Diego, San Diego, California; Leigh-Ann K. Miyasato, Honolulu, Hawaii; Rodney L. Kawakami, Seattle, Washington; Robert A. Johnson and Alice Hsu, Akin Gump Strauss Hauer & Feld LLP, New York, New York; Jessica M. Weisel, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, California; for Amici Curiae Karen Korematsu, Jay Hirabayashi, Holly Yasui, The Fred T. Korematsu Center for Law and Equality, Civil Rights Organizations, and National Bar Associations of Color. Matthew E. Sloan, Richard A. Schwartz, Allison B. Holcombe, Alyssa J. Clover, nad Brittany Ellenberg, Skadden Arps Slate Meagher & Flom LLP, Los Angeles, California; Eric J. Gorman and Jennifer H. Berman, Skadden Arps Slate Meagher & Flom LLP, Chicago, Illinois; Noelle M. Reed, Sarah Grossnickle, and Jonathan Fombonne, Skadden Arps Slate Meagher & Flom LLP, Houston, Texas; Joseph M. Sandman, Skadden Arps Slate Meagher & Flom LLP, Washington, D.C.; Aaron Morris, Immigration Equality, New York, New York; Virginia M. Goggin, New York City Gay and Lesbian Anti-Violence Project, New York, New York; Glenn Magpantay, The National Queer Asian Pacific Islander Alliance, New York, New York; for Amici Curiae Immigration Equality, New York City Gay and Lesbian Anti-Violence Project, LGBT Bar Association of Los Angeles, LGBT Bar Association of Greater New York, Lesbian and Gay Bar Association of Chicago, GLBTQ Legal Advocates & Defenders, and Bay Area Lawyers for Individual Freedom. Alan E. Schoenfeld and Scott McAbee, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Peter Margulies, Roger Williams University School of Law, Bristol, Rhode Island; for Amici Curiae Scholars of Immigration Law. Dan Jackson, John W. Keker, and R. Adam Lauridsen, Keker Van Nest & Peters LLP, San Francisco, California, for Amicus Curiae Khizr Khan. Brett R. Tobin, Goodsill Anderson Quinn & Stifel, Honolulu, Hawaii; Michael B. Keating, Kristyn M. Defilipp, Christopher E. Hart, and Daniel L. McFadden, Foley Hoag LLP, Boston, Massachusetts; for Amicus Curiae Massachusetts Technology Leadership Council Inc. Robert A. Wiygul and Mark A. Aronchick, Hangley Aronchick Segal Pudlin & Schiller, Philadelphia, Pennsylvania, for Amici Curiae Immigration, Family, and Constitutional Law Professors. 75 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 78 of 173 James W. Kim and Andrew J. Genz, McDermott Will & Emery LLP, Washington, D.C.; Tina R. Matsuoka, Navdeep Singh, Meredith S.H. Higashi, Rachana Pathak, and Albert Giang, National Asian Pacific American Bar Association, Washington, D.C.; for Amicus Curiae National Asian Pacific American Bar Association. Herbert W. Titus, William J. Olson, Robert J. Olson, and Jeremiah L. Morgan, William J. Olson P.C., Vienna, Virginia; Joseph W. Miller, Fairbanks, Alaska; for Amici Curiae Citizens United, Citizens United Foundation, Conservative Legal Defense and Education Fund, U.S. Justice Foundation, Gun Owners Foundation, Gun Owners of America Inc., Public Advocate of the United States, Restoring Liberty Action Committee, English First, English First Foundation, and Policy Analysis Center. Yolanda C. Rondon, Samer E. Khalaf, and Abed A. Ayoub, Washington, D.C., as and for Amicus Curiae American-Arab Anti-Discrimination Committee. 76 EXHIBIT 2 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page180 ofof 65173 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 JOHN DOE, et al., 10 11 12 Plaintiffs, v. DONALD TRUMP, et al., Defendants. 13 14 15 16 17 18 JEWISH FAMILY SERVICES, et al., Plaintiffs, v. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ISSUING A PRELIMINARY INJUNCTION (RELATING TO BOTH CASES) CASE NO. C17-1707JLR DONALD TRUMP, et al., Defendants. I. 19 20 CASE NO. C17-0178JLR INTRODUCTION The work of this court, and more broadly of the federal Judiciary, is to resolve 21 disputes between parties; that is what the court endeavors to do today in ruling on the two 22 motions before it. Plaintiffs in both cases are refugees, who find themselves in dire ORDER - 1 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page281 ofof 65173 1 circumstances, their family members who yearn to be reunited with them, and 2 humanitarian organizations whose fundamental mission is to help these vulnerable 3 refugees resettle in the United States. Plaintiffs in both cases present compelling 4 circumstances of irreparable harm inflicted by the federal agencies’ action at issue here. 5 Nevertheless, the fundamental question the court must resolve is did the federal agencies 6 act within their legal authority? If so, the court does not intervene, but leaves the 7 decision to the other two branches of government—Congress and the Executive. Today, 8 however, the court intervenes and preliminarily enjoins the federal agencies’ action. It 9 does so because, at this early stage in the proceedings, Plaintiffs show that they are likely 10 to succeed on their claims that the agencies exceeded their statutory authority and also 11 that they meet the other qualifying factors necessary for preliminary injunctive relief. 12 One further note: This is an area of rapidly developing law with related cases 13 presently on appeal and decisions anticipated shortly.1 Plaintiffs, however, seek a 14 decision now and are entitled to one given the facts in this case. In deciding these 15 motions, the court must rely on the precedent currently available to it. The court 16 understands that appellate courts may issue additional guidance in the days to come. If 17 the parties believe that the court should revisit any portion of today’s decision on the 18 basis of subsequent authority, they should raise this to the court’s attention through 19 appropriate motions. The court now turns to the motions at hand. 20 // 21 22 1 Indeed, one such decision was issued last night. See Hawaii v. Trump, No. 17-17168, 2017 WL 6547095 (9th Cir. Dec. 22, 2017) (“Hawaii III”). The court has reviewed that opinion and incorporated it into this decision. ORDER - 2 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page382 ofof 65173 1 Before the court are two motions seeking to preliminarily enjoin certain aspects of 2 Executive Order No. 13,815 (“EO-4”), § 3(a), 82 Fed. Reg. 50,055 (Oct. 27, 2017), and 3 its accompanying memorandum to Defendant Donald Trump, President of the United 4 States, from Defendants Rex Tillerson, Secretary of the Department of State (“DOS”), 5 Elaine Duke, Acting Secretary of the Department of Homeland Security (“DHS”), and 6 Daniel Coats, Director of National Intelligence (“DNI”) (Lin Decl. (Dkt. # 46) ¶ 3, Ex. B 7 (attaching a copy of the memorandum) (hereinafter, “Agency Memo”)). Plaintiffs John 8 Doe, Jack Doe, Jason Doe, Joseph Doe, James Doe, Jeffrey Doe, the Episcopal Diocese 9 of Olympia, and the Council on American Islamic Relations-Washington (collectively, 10 “Doe Plaintiffs”) filed the first motion for a preliminary injunction in Doe, et al. v. 11 Trump, et al., No. C17-0178JLR (W.D. Wash.) (“the Doe Case”). (See Doe PI Mot. 12 (Dkt. # 45).) Shortly after Doe Plaintiffs filed their motion, Plaintiffs Jewish Family 13 Service of Seattle (“JFS-S”), Jewish Family Services of Silicon Valley (“JFS-SV”), Allen 14 Vaught, Afkab Mohamed Hussein, John Does 1-3 and 7, and Jane Does 4-6 (collectively, 15 “JFS Plaintiffs”) filed a separate action in JFS-S, et al. v. Trump, et al., No. C17- 16 1707JLR (W.D. Wash.) (“the JFS Case”) and a second motion for a preliminary 17 injunction. (See JFS Compl. (17-1707 Dkt. # 1); JFS PI Mot. (17-1707 Dkt. # 42).)2 18 Recognizing that both cases and motions for preliminary injunction concerned EO-4 and 19 the Agency Memo, the court consolidated the cases. (See OSC re: Consol. (Dkt. # 52); 20 21 22 2 References to docket numbers in this order refer to filings the Doe Case, unless the docket number is preceded by “17-1707.” Docket numbers preceded by “17-1707” refer to entries in the JFS Case. ORDER - 3 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page483 ofof 65173 1 Stip. Re: Consol. (Dkt. # 60); Consol. Order (Dkt. # 61).) Following consolidation, Doe 2 Plaintiffs joined JFS Plaintiffs’ motion, and JFS Plaintiffs joined Doe Plaintiffs’ motion. 3 (Doe Joinder (Dkt. #62); JFS Joinder (17-1707 Dkt. # 70).) 4 In addition to the parties’ briefing (see Doe PI Mot.; JFS PI Mot.; Doe Resp. (Dkt. 5 # 51); JFS Resp. (Dkt. # 77); Doe Reply (Dkt. # 54); JFS Reply (Dkt. # 79); Doe Joinder; 6 JFS Joinder ; Doe Supp. Br. (Dkt. # 76); JFS Supp. Br. (Dkt. # 73); Def. Supp. Br. (Dkt. 7 # 78)), the court has considered the relevant portions of the record, and the applicable 8 law. Further, the court heard oral argument on December 21, 2017. Being fully advised, 9 the court (1) GRANTS Doe Plaintiffs’ motion for a preliminary injunction, and (2) 10 GRANTS JFS Plaintiffs’ motion for a preliminary injunction except for those refugees 11 who lack a bona fide relationship with a person or entity in the United States.3 See 12 Trump v. Int’l Refugee Assistance Project, --- U.S. ---, 137 S. Ct. 2080, 2089 (2017) 13 (“IRAP”). 14 // 15 // 16 3 17 18 19 20 21 22 In accordance with Federal Rules of Civil Procedure 52(a) and 65(d), this order shall constitute the court’s findings of fact and conclusions of law setting forth the grounds for issuing the preliminary injunction contained herein. See Fed. R. Civ. P. 52(a); Fed. R. Civ. P. 65(d); see also A.H.R. v. Wash. State Health Care Auth., No. C15-5701JLR, 2016 WL 98513, at *1 n.4 (W.D. Wash. Jan. 7, 2016). Although the court has not labeled paragraphs specifically as findings of fact or conclusions of law, such labels are not necessary. The nature of the findings and conclusions that follow is apparent. See Tri–Tron Int’l v. A.A. Velto, 525 F.2d 432, 435-36 (9th Cir. 1975) (“We look at a finding or a conclusion in its true light, regardless of the label that the district court may have placed on it. . . . [T]he findings are sufficient if they permit a clear understanding of the basis for the decision of the trial court, irrespective of their mere form or arrangement.”) (internal citations omitted); In re Bubble Up Del., Inc., 684 F.2d 1259, 1262 (9th Cir. 1982) (“The fact that a court labels determinations ‘Findings of Fact’ does not make them so if they are in reality conclusions of law.”). ORDER - 4 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page584 ofof 65173 1 2 II. A. BACKGROUND The President’s Executive Orders on Immigration and Refugees 3 1. EO-1 4 One week after his inauguration, President Trump issued Executive Order No. 5 13,769, 82 Fed. Reg. 8,977 (Feb. 1, 2017) (“EO-1”). In addition to suspending the entry 6 of aliens from seven majority-Muslim countries for 90 days, EO-1 suspended the United 7 States Refugee Admission Program (“USRAP”) for 120 days and banned the entry of 8 Syrian refugees indefinitely. Id. §§ 3(c), 5(a), 5(c). During the 120-day suspension of 9 USRAP, EO-1 directed the Secretaries of DOS and DHS and the DNI to conduct a 10 security review of USRAP. Id. § 5(a). In this period, refugees could be admitted on a 11 case-by-case basis only if their admission was “in the national interest,” which was 12 defined to include when a person is “a religious minority in his country of nationality 13 facing religious persecution.” Id. § 5(e). EO-1 further directed that when USRAP 14 resumed, DOS was to “prioritize refugee claims made by individuals on the basis of 15 religious-based persecution, provided that the religion of the individual is a minority 16 religion in the individual’s country of nationality.” Id. § 5(b). 17 On February 3, 2017, this court issued a nationwide temporary restraining order 18 (“TRO”) enjoining EO-1, including the suspension of USRAP. Washington v. Trump, 19 No. C17-0141JLR, 2017 WL 462040, at *1 (W.D. Wash. Feb. 3, 2017), stay pending 20 appeal denied, 847 F.3d 1151 (9th Cir. 2017), appeal dismissed, No. 17-35105, 2017 WL 21 3774041 (9th Cir. Mar. 8, 2017). On appeal, the Ninth Circuit interpreted the court’s 22 TRO to be a preliminary injunction and declined the Government’s request to stay this ORDER - 5 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page685 ofof 65173 1 court’s order. Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), appeal dismissed, 2 No. 17-35105, 2017 WL 3774041 (9th Cir. Mar. 8, 2017). 3 2. EO-2 4 After the Ninth Circuit’s ruling, President Trump abandoned his efforts to defend 5 EO-1, and issued Executive Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) 6 (“EO-2”). EO-2 expressly revoked EO-1. EO-2 § 13. EO-2 was similar to EO-1 except 7 that it omitted the explicit preference for religious minorities and the indefinite 8 suspension of Syrian refugees. EO-2 directed another review of USRAP and restarted the 9 120-day suspension of USRAP during the new review period, subject to case-by-case 10 waivers. Id. §§ 6(a), (c). EO-2 stated that the suspension of USRAP was necessary to 11 allow the agencies to “determine what additional procedures should be used to ensure 12 that individuals seeking admission as refugees do not pose a threat to the security and 13 welfare of the United States.” Id. § 6(a). EO-2 also stated that at the conclusion of the 14 review period, USRAP adjudications would resume for stateless persons and nationals of 15 countries for which the agencies “determined that the additional procedures implemented 16 . . . [we]re adequate to ensure the security and welfare of the United States.” Id. 17 Before EO-2 could take effect, a federal district court in Hawaii issued a TRO, 18 holding that EO-2 violated the Establishment Clause. See, e.g., Hawaii v. Trump, 245 F. 19 Supp. 3d 1227, 1230 (D. Haw. 2017), hearing en banc denied sub nom. Hawaii v. Trump, 20 864 F.3d 994 (9th Cir. 2017), aff’d in part, vacated in part, remanded sub nom. Hawaii v. 21 Trump, 859 F.3d 741 (9th Cir. 2017), cert. granted sub nom. Trump v. Int’l Refugee 22 Assistance Project, --- U.S. ---, 137 S. Ct. 2080 (2017), and cert. granted, judgment ORDER - 6 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page786 ofof 65173 1 vacated, No. 16-1540, 2017 WL 4782860 (U.S. Oct. 24, 2017), and vacated, 874 F.3d 2 1112 (9th Cir. 2017), and appeal dismissed as moot sub nom. Hawaii v. Trump, 874 F.3d 3 1112 (9th Cir. 2017). The Ninth Circuit upheld the district court’s decision on the ground 4 that President Trump failed to invoke the proper authority to suspend refugee admissions. 5 Hawaii v. Trump, 859 F.3d 741, 776 (9th Cir. 2017), cert. granted sub nom. Trump v. 6 Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017), and cert. granted, judgment 7 vacated, No. 16-1540, 2017 WL 4782860 (U.S. Oct. 24, 2017), and vacated, 874 F.3d 8 1112 (9th Cir. 2017) (“Hawaii I”). In addition, a federal district court in Maryland and 9 the Fourth Circuit Court of Appeals both concluded that EO-2 likely violated the 10 Establishment Clause. Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 11 544 (D. Md. 2017), aff’d in part, vacated in part, 857 F.3d 554 (4th Cir. 2017) (en banc), 12 as amended (May 31, 2017), as amended (June 15, 2017), cert. granted, --- U.S. ---, 137 13 S. Ct. 2080 (2017), and vacated and remanded sub nom. Trump v. Int’l Refugee 14 Assistance Project, --- U.S. ---, 138 S. Ct. 353 (2017). Pending appeals from both the 15 Ninth and Fourth Circuit Courts of Appeal, the Supreme Court stayed the preliminary 16 injunctions issued by the Maryland and Hawaii district courts—except for foreign 17 nationals and refugees who had a “credible claim of a bona fide relationship with a 18 person or entity in the United States.” IRAP, 137 S. Ct. at 2088-89. 19 3. EO-3 20 While review of EO-2 was pending before the Supreme Court, President Trump 21 replaced those portions of EO-2 that relate to immigrants (and not refugees), with a 22 Presidential Proclamation. See Proclamation No 9,645, 82 Fed. Reg. 45,161 (Sept. 27, ORDER - 7 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page887 ofof 65173 1 2017) (“EO-3”). EO-2’s refugee ban was still in effect at the time President Trump 2 issued EO-3. Federal district judges in Hawaii and Maryland issued preliminarily 3 injunctions blocking implementation of portions of EO-3. See Int’l Refugee Assistance 4 Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *1 (D. Md. Oct. 17, 5 2017), appeal docketed, No. 17-2231 (4th Cir. Oct. 20, 2017), and appeal docketed, No. 6 17-2240 (4th Cir. Oct. 23, 2017); Hawaii v. Trump, No. CV 17-00050 DKW-KSC, 2017 7 WL 4639560, at *1 (D. Haw. Oct. 17, 2017), appeal docketed, No. 17168 (9th Cir. Oct. 8 24, 2017). The Ninth Circuit affirmed the Hawaii district court’s ruling in large part, but 9 narrowed the scope of the injunction to give relief only to those with a credible bona fide 10 relationship with the United States, pursuant to the Supreme Court’s decision in IRAP, 11 137 S. Ct. at 2088. See Hawaii III, 2017 WL 6547095 at * 26. The ruling from the 12 Maryland federal district court remains on appeal. The Supreme Court has stayed both 13 preliminary injunctions pending further appeals. See Trump v. Int’l Refugee Assistance 14 Project, No. 17A560, 2017 WL 5987435, at *1 (U.S. Dec. 4, 2017); Trump v. Hawaii, 15 No. 17A550, 2017 WL 5987406, at *1 (U.S. Dec. 4, 2017). 16 4. EO-4 and the Agency Memo 17 On October 24, 2017, the same day that EO-2’s 120-day refugee ban expired, 18 President Trump issued Executive Order 13,815, 82 Fed. Reg. 50,055 (Oct. 27, 2017) 19 (“EO-4”). EO-4 stated that continued suspension of refugee admission was not 20 necessary, EO-4 § 3(a), and that the Administration had improved USRAP vetting 21 processes so that they were “generally adequate to ensure the security and welfare of the 22 United States,” id. § 2(a). Nevertheless, EO-4 directed a continuing risk assessment as to ORDER - 8 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page988 ofof 65173 1 “[c]ertain [c]ategories of [r]efugees.” Id. §§ 3(a)(i)-(ii). The Secretaries of DOS and 2 DHS and the DNI outlined the risk assessment and the EO-4 categories of refugees in the 3 Agency Memo, which was dated October 23, 2017, but released on October 24, 2017.4 4 (See Lin Decl. ¶ 3, Ex. B (attaching Agency Memo); see also Burman Decl. ¶ 3, Ex. B 5 (attaching Agency Memo).) 6 Plaintiffs seek to preliminarily enjoin certain provisions of the Agency Memo that 7 (1) indefinitely suspend “following-to-join” (“FTJ”) derivative refugees from entering the 8 United States, and (2) suspend for at least 90-days the entry of refugees who are 9 “nationals of, and stateless persons who last habitually resided in, 11 particular countries 10 previously identified as posing a higher risk to the United States through their designation 11 on the Security Advisory Opinion (“SAO”) list.” (Agency Memo at 2-3; see generally 12 Doe PI Mot.; JFS PI Mot.) 13 14 15 a. The FTJ Provisions The Agency Memo indefinitely suspends the FTJ process for refugees.5 (Agency Memo at 2-3.) Approximately 2,500 refugees in the United States are able to reunite 16 4 17 18 An addendum is attached to the Agency Memo, entitled “Addendum to Section 6(a) Memorandum,” which refers to the review of USRAP directed by Section 6(a) of EO-2 (“Agency Memo Addendum”). (See Burman Decl. (17-1707 Dkt. # 43) ¶ 3, Ex. B.) 5 19 20 21 22 Under the INA, subject to numerical limits set annually by the President, the Secretary of DHS may admit “any refugee who is not firmly resettled in any foreign country, is determined to be of special humanitarian concern to the United States, and is admissible (except as otherwise provided under ([8 U.S.C. § 1157(c)(3)]) as an immigrant.” 8 U.S.C. § 1157(c)(1). Refugees admitted under this provision are referred to as “principal refugees.” See 8 C.F.R. § 207.7(a). “Derivative refugees” are the spouses and unmarried minor children of an admitted principal refugee. See id. When derivative refugees travel to join the principal refugee more than four months after the principal refugee’s admission, they are FTJ derivative refugees, rather than “accompanying” derivative refugees. See id. ORDER - 9 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page10 89ofof65 173 1 with their immediate family members annually through the FTJ process. (Id. at 2 n.1.) 2 The Agency Memo states that most FTJ refugee applicants do not currently undergo the 3 same security procedures as the principal refugee who has already resettled in the United 4 States. (Id. at 2-3.) The Secretaries of DOS and DHS and the DNI determined that FTJ 5 refugees should not be admitted to the United States until additional screening procedures 6 are in place. (Id. at 3.) Although the Agency Memo does not exempt Kenya and 7 Thailand from its application, Defendants state that FTJ refugees processed at 8 resettlement centers in those two countries are not affected by the Agency Memo because 9 “adequate review mechanisms are already in place in those countries.” (JFS Resp. at 5, 10 n.3; see also Doe Resp. at 5; Higgins Decl. (Dkt. # 51-1) ¶ 11).) At oral argument, 11 Defendants clarified that during the Agency Memo’s indefinite FTJ suspension, the 12 Government was not just barring entry of FTJ refugees, but had completely stopped 13 processing FTJ refugee applications—except for FTJ refugees who are processed in 14 Thailand or Kenya. 15 b. The SAO Provisions 16 The Agency Memo also suspends for at least 90 days refugee admission of 17 nationals of 11 countries on the SAO list, as well as stateless persons who last resided in 18 those countries. (See Agency Memo at 2.) The Agency Memo does not identify the 19 countries, but Plaintiffs assert that the countries are Egypt, Iran, Iraq, Libya, Mali, 20 Somalia, Sudan, Syria, and Yemen, as well as North Korea and South Sudan.6 (See JFS 21 22 6 At oral argument, Defendants declined to confirm this list of the 11 SAO countries on the basis that it was “law enforcement sensitive information.” However, Defendants conceded ORDER - 10 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page11 90ofof65 173 1 PI Mot. at 7; see also Smith Decl. (17-1707 Dkt. # 44) ¶ 5.) Countries on the SAO list 2 “have been assessed by the U.S. government to pose elevated potential risks to national 3 security.” (Agency Memo Addendum at 1.) The SAO list for refugees was established 4 after September 11, 2001, and has changed over the years. (Id.) The most recent list was 5 updated in 2015. (Id.) USRAP already requires additional screening and procedures for 6 refugees from countries on the SAO list. (Id.) USRAP subjects these refugees to 7 additional vetting through SAOs, which are “DOS-initiated biographic check[s] 8 conducted by the Federal Bureau of Investigation and intelligence community partners.” 9 (Id. at 1 n.1.) 10 The Agency Memo requires the agencies to “conduct a review and analysis” of 11 USRAP for refugees from SAO countries for an additional 90 days—notwithstanding the 12 agencies’ review of USRAP pursuant to EO-1 and EO-2. (See Agency Memo at 2.) Like 13 President Trump’s prior EOs, the Agency Memo suspends refugee admission from SAO 14 countries unless resettlement “would fulfill critical foreign policy interests, without 15 compromising national security and the welfare of the United States,” a determination 16 made on a “case-by-case basis” (Id.) In addition, the Agency Memo diverts resources 17 dedicated to processing refugees who are citizens of (or stateless persons who last resided 18 in) SAO countries and reallocates those resources to processing refugee applicants from 19 non-SAO countries. (Id.) During oral argument, Defendants acknowledged that this 20 would impact the pace of processing for SAO refugees. Thus, even if the SAO 21 22 that the court could “rely on Plaintiffs’ allegations for purposes of addressing the issues” presented in these motions. ORDER - 11 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page12 91ofof65 173 1 suspension is lifted after 90-days, it will have a long-term effect. “Refugees have only a 2 narrow window of time to complete their travel, as certain security and medical checks 3 expire and must then be re-initiated.” Hawaii v. Trump, 871 F.3d 646, 664 (9th Cir. 4 2017) (“Hawaii II”). “Even short delays may prolong a refugee’s admittance.” Id. 5 B. Facts Pertaining to Specific Plaintiffs 6 1. Joseph Doe 7 Joseph Doe is a plaintiff in the Doe Case. (See Doe TAC (Dkt. # 42) ¶¶ 54-71.) 8 He is from Somalia, was first admitted to the United States in 2014 as a refugee, and 9 became a lawful permanent resident in 2016. (Joseph Decl. (Dkt. # 47) ¶¶ 2, 9, 11.) 10 Joseph fled Somalia with his family as a young child; he and his family eventually ended 11 up in a refugee camp in Kenya, where Joseph grew up, married, and began his own 12 family. (Id. ¶¶ 3-8.) Joseph’s wife and children were unable to come to the United States 13 with Joseph, remaining in Kenya. (Id. ¶¶ 8-9.) Joseph filed an I-730 petition to bring his 14 wife and children to the United States as FTJ refugees. (Id. ¶ 10.) Joseph’s wife and 15 children have completed their final interviews, security and medical clearances, received 16 a formal assurance from a refugee resettlement agency, and are on the brink of travel. 17 (Id. ¶ 12; Joseph Supp. Decl. (Dkt. # 56) ¶¶ 3-5.) Yet, Joseph’s family has not received 18 permission from DHS to travel. (Joseph Supp. Decl. ¶ 7.) Joseph’s two youngest 19 children were born in Kenya and have never been to Somalia. (Id. ¶ 9.) Nevertheless, 20 they are considered to be Somali citizens due to Joseph’s nationality. (Id.) Somalia is an 21 SAO country. (Smith Decl. ¶ 5.) Thus, the United States embassy in Somalia informed 22 Joseph that although his wife and oldest step-son, who are both Kenyan citizens, could ORDER - 12 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page13 92ofof65 173 1 obtain permission to travel to the United States, his 4-year-old and 5-year-old sons cannot 2 because they are considered Somali citizens. (See Joseph Supp. Decl. ¶ 10.) 3 2. John Doe 7 4 John Doe 7 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 20.) JFS Plaintiffs 5 base their joinder in the Doe motion for preliminary injunction on facts pertaining to Doe 6 7. (JFS Joinder at 1-2.) Doe 7 is an Iraqi national, who was admitted as a refugee to the 7 United States in 2014, along with his wife and two children. (Doe 7 Decl. (17-1707 Dkt. 8 # 58) ¶ 2.) He filed an I-720 petition for his 19-year-old son from his first marriage to 9 join him as an FTJ refugee, which the Government approved. (Id. ¶¶ 3-4.) His son has 10 completed his interview and fingerprinting and received a formal assurance from JFS-S 11 in November 2016. (Id. ¶ 4.) Since that time, Doe 7’s son has been waiting to travel to 12 the United States. (Id.) 13 3. Afkab Mohamed Hussein 14 Afkab Mohamed Hussein is a plaintiff in the JFS Case. (See JFS Compl. ¶ 12.) 15 He is a Somali national, who was admitted to the United States as a refugee in September 16 2015. (Hussein Decl. (17-1707 Dkt. # 48) ¶ 1.) His wife, who was pregnant with their 17 son at the time, did not travel with Mr. Hussein to the United States. (See id. ¶ 6.) Mr. 18 Hussein filed I-720 petitions for his wife and son to join him in the United States as FTJ 19 refugees, which the Government approved in June 2016. (Id. ¶¶ 10, 16.) His wife and 20 son were both born in Kenya but are considered Somali citizens. (See id. ¶¶ 11-12.) 21 // 22 // ORDER - 13 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page14 93ofof65 173 1 4. John Doe 1 2 John Doe 1 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 13.) Doe 1 is an Iraqi 3 former interpreter for the United States military. (Doe 1 Decl. (17-1707 Dkt. # 52) ¶¶ 1, 4 3.)7 Doe 1 and his family were in extreme danger in Iraq due to his work for the United 5 States military. (See id. ¶¶ 3-8.) As a result, in 2014, he fled Iraq for Cairo, Egypt 6 without his family. (Id. ¶¶ 8-9.) In September 2014, he applied for refugee status in the 7 United States. (Id. ¶ 12.) He is currently “in the end stage of processing for refugee 8 admissions.” (Id. ¶ 15.) He was conditionally approved for resettlement in the United 9 States in December 2015, and has received an assurance of sponsorship from a 10 resettlement agency. (Id.) In early October 2017, the International Organization for 11 Migration (“IOM”) told Doe 1 to “get ready to travel to the United States.” (Id. ¶ 16.) 12 While he was updating his passport to travel, EO-4 and the Agency Memo went into 13 effect, preventing him from traveling. (See id.) 14 5. John Does 2 and 3 15 John Doe 2 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 15.) John Doe 2 is an 16 Iraqi former interpreter for the United States Army. (Doe 2 Decl. (17-1707 Dkt. # 53) 17 ¶¶ 1, 3.) In 2010, he came to the United States to complete his PhD. (Id. ¶ 5.) Upon 18 graduation, he travelled back to Mosul, Iraq without his wife and children who remained 19 in the United States. (Id.) While he was in Mosul, ISIS seized control of the city, and he 20 21 22 7 (See also Vaught Decl. (17-1707 Dkt. # 49) ¶¶ 1-24 (describing the declarant’s work with Doe 1 as an interpreter while the declarant was serving in Falluja, Iraq with the United States Army Reserve’s Civil Affairs and Psychological Operations Command, his distress in having to leave Doe 1 behind in Iraq, his efforts to assist Doe 1 to resettle in the United States, and his objections to EO-4 and the Agency Memo).) ORDER - 14 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page15 94ofof65 173 1 has been unable to rejoin his family in the United States ever since. (Id. ¶ 6.) In 2015, he 2 applied for admission to the United States as a refugee. (Id. ¶¶ 7-8.) He is currently “in 3 the end stage of processing for refugee admissions.” (Id. ¶ 9; see also id. ¶ 12.) He was 4 “awaiting security checks and travel booking” when he was informed of the restrictions 5 on refugees that apply to Iraqi nationals in EO-1, EO-2, and EO-4. (Id.) He has been 6 stranded in Iraq and separated from his family for three years. (Id. ¶ 11.) One of his 7 children is now married to a lawful permanent resident, and he has two granddaughters 8 who are United States citizens. (Id. ¶ 5.) 9 John Doe 3 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 16.) He is a lawful 10 permanent resident of the United States and the son-in-law of Doe 2. (Doe 3 Decl. 11 (17-1707 Dkt. # 54) ¶ 1.) He is worried about Doe 2’s safety. Doe 2’s family in the 12 United States, which consists of his wife, five children, two sons-in-law, and two 13 granddaughters, miss him dearly, rely on him, and want to be reunited with him. (Id. 14 ¶¶ 2, 4-5.) 15 6. Jane Doe 4 16 Jane Doe 4 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 17.) Doe 4 is an 17 Egyptian, who has applied for refugee status in the United States. (Doe 4 Decl. (17-1707 18 Dkt. # 55) ¶¶ 1-2.) She is a transgender woman who faces extreme harassment and 19 persecution in Egypt because of her gender identity. (Id. ¶ 3; see also id. ¶ 6.) Until the 20 recent restrictions on refugee admissions to the United States, USRAP was processing 21 her refugee application on an expedited basis. (Id. ¶ 5.) 22 // ORDER - 15 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page16 95ofof65 173 1 7. Jane Does 5 and 6 2 Jane Doe 5 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 18.) She is an Iraqi 3 national and waiting to travel to the United States as a refugee. (Doe 5 Decl. (17-1707 4 Dkt. # 56) ¶¶ 2-3.) She hopes to live with her sister who resides in Castle Creek, Utah. 5 (Id. ¶ 2.) Her mother, father, another sister, and a brother also live in the United States. 6 (Id. ¶ 8.) In Iraq, Doe 5 works as an interpreter and administrator for American 7 companies. (Id. ¶ 3.) As a result of her work, she faces danger, threats, and harassment 8 in Iraq. (Id. ¶¶ 3-5) In November 2015, Doe 5 was kidnapped by Iraqi militants who 9 raped her multiple times and held her for about a month. (Id. ¶ 4.) When they released 10 her, they told her they would kill her if she continued to work with the Americans. (Id.) 11 She applied for refugee status in 2012. (Id. ¶ 7.) She has completed multiple stages of 12 the refugee admissions process and has been awaiting security checks and travel booking 13 since 2016. (Id.) 14 Jane Doe 6 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 19.) She is a United 15 States citizen and the sister of Doe 5. (Doe 6 Decl. (17-1707 Dkt. # 57) ¶ 1.) She fears for 16 her sister’s safety in Iraq and misses her deeply. (See id. ¶¶ 2, 4-6.) 17 All of the individual Plaintiffs have been injured by prolonged separation from 18 their family members. (See, e.g., Hussein Decl. ¶¶ 6, 18; Doe 2 Decl. ¶¶ 5, 10; Doe 3 19 Decl. ¶ 4; Doe 5 Decl. ¶ 8; Doe 6 Decl. ¶¶ 6-7; Doe 7 Decl. ¶¶ 5-7.) Those individual 20 Plaintiffs stranded abroad in perilous circumstances are injured by their inability to travel 21 to safety in the United States. (See, e.g., Doe 1 Decl. ¶¶ 3-11; Doe 2 Decl. ¶¶ 5-10; Doe 4 22 Decl. ¶ 7; Doe 5 Decl. ¶ 9.) ORDER - 16 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page17 96ofof65 173 1 8. The Organizational Plaintiffs 2 JFS Plaintiffs argue in conjunction with their motion for preliminary injunction 3 that EO-4 and the Agency Memo also harm the organizational Plaintiffs—JFS-S and 4 JFS-SV.8 (JFS PI Mot. at 12-13.) These agencies provide services to and help resettle 5 refugees in response to the moral, religious, and cultural commands of their religion. 6 (JFS-S Decl. (17-1707 Dkt. # 50) ¶¶ 2-8, 15-16; JFS-SV Decl. (17-1707 Dkt. # 51) ¶¶ 11- 7 18.) Due to the anticipated reduction in refugees from Muslim countries as a result of 8 EO-4 and the Agency Memo, these organizations anticipate that they will need to lay-off 9 employees, reduce services, divert resources to address fears raised by EO-4 and the 10 Agency Memo, cancel established programs, and lose relationships and goodwill with 11 volunteers and community partners who these organizations have cultivated relationships 12 with over the years. (See JFS-S Decl. ¶¶ 30-34; JFS-SV Decl. ¶¶ 27-35.) Further, the 13 agencies state that because they hire staff and volunteers and design programs to be 14 culturally and linguistically relevant to the communities they serve, they cannot simply 15 divert the lost resources to refugees who hail from other parts of the world and who are 16 unaffected by EO-4 and the Agency Memo. (JFS-SV Supp. Decl. (Dkt. # 82) ¶¶ 2-4; 17 JFS-S Supp. Decl. (Dkt. # 81) ¶¶ 3-6.) Indeed, the agencies will be forced to replace 18 staff, build new community relationships, and redesign programs. (JFS-SV Supp. Decl. 19 ¶ 4; JFS-S Supp. Decl. ¶¶ 6-7.) 20 // 21 22 8 Doe Plaintiffs did not assert harm to organizational Plaintiffs Episcopal Diocese of Olympia or the Council on American-Islamic Relations-Washington in support of their motion for a preliminary injunction. (See generally Doe PI Mot.) ORDER - 17 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page18 97ofof65 173 1 III. 2 ANALYSIS Doe Plaintiffs assert that they are entitled to a preliminary injunction because they 3 are likely to succeed on four claims: (1) the Agency Memo’s indefinite ban on FTJ 4 refugees is contrary to the INA (Doe PI Mot. at 9-12); (2) the Agency Memo’s indefinite 5 ban on FTJ refugees deprives Plaintiffs of due process under the Fifth Amendment (id. at 6 12-14); (3) the Agency Memo violates the Administrative Procedures Act’s (“APA”), 5 7 U.S.C. § 553(b), requirement for notice and comment rulemaking (id. at 14-15); and (4) 8 the Agency Memo violates the APA, 5 U.S.C. § 706(2)(A), because it is arbitrary and 9 capricious (id at 14-18). 10 JFS Plaintiffs assert that they are entitled to a preliminary injunction because they 11 are likely to succeed on four claims: (1) the Agency Memo’s SOA provisions violate the 12 Establishment Clause (JFS PI Mot. at 13-17); (2) the Agency Memo’s SAO provisions 13 violate the APA, 5 U.S.C. § 706(2)(A), because they are arbitrary and capricious (id. at 14 17-18); (3) the Agency Memo violates the APA, 5 U.S.C. § 706(2)(C), because it is ultra 15 vires and contrary to the INA (id. at 19-22); and (4) the Agency Memo violates the APA 16 because the agency failed to engage in required notice and comment rulemaking (id. at 17 20).9 18 Defendants oppose both Doe Plaintiffs’ and JFS Plaintiffs’ substantive arguments 19 that they are likely to prevail on these claims. (Doe Resp. at 12-21; JFS Resp. at 15-28.) 20 21 22 9 JFS Plaintiffs also assert that the FTJ provisions of the Agency Memo violate the APA, the INA, and the Due Process Clause of the Fifth Amendment (JFS PI Mot. at 22-23), and they filed a formal notice of joinder in Doe Plaintiffs’ motion (see JFS Joinder.) ORDER - 18 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page19 98ofof65 173 1 In addition, Defendants oppose both motions on a variety of justiciability grounds. (Doe 2 Resp. at 7-12; JFS Resp. at 5-15.) The court addresses Defendants’ justicaibility issues 3 first, and then addresses the substance of the Doe and JFS motions for preliminary 4 injunctions. In addressing the substance of Plaintiffs’ motions, the court turns to the 5 statutory issues first. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 6 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that 7 courts avoid reaching constitutional questions in advance of the necessity of deciding 8 them.”). Because the court ultimately concludes that Plaintiffs show a likelihood of 9 success on the merits of their statutory claims, the court does not reach either JFS 10 Plaintiffs’ Establishment Clause claim or Doe Plaintiffs’ due process claim. See 11 Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) 12 (“[I]f a case can be decided on either of two grounds, one involving a constitutional 13 question, the other a question of statutory construction or general law, the Court will 14 decide only the latter.”). 15 A. Justiciability Defendants challenge the justiciability of both motions for preliminary injunction 16 17 on four grounds: (1) Plaintiffs lack Article III standing (Doe Resp. at 7-8; JFS Resp. at 18 5-9); (2) Plaintiffs’ claims are barred by principles of nonreviewability (Doe Resp. at 8- 19 11; JFS Resp. at 10-14); (3) Plaintiffs fail to identify any final agency action (Doe Resp. 20 at 11-12; JFS Resp. at 14-15), and (4) Plaintiffs’ claims concerning the SAO provisions 21 are unreviewable under 5 U.S.C. § 701(a) (JFS Resp. at 15). In addition to these issues, 22 // ORDER - 19 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page20 99ofof65 173 1 the court also addresses statutory standing because both Doe Plaintiffs and JFS Plaintiffs 2 raise statutory claims.10 3 1. Article III Standing 4 To satisfy Article III standing, “a plaintiff must show (1) [he or she] has suffered 5 an ‘injury in fact’[;] . . . (2) the injury is fairly traceable to the challenged action of the 6 defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be 7 redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. 8 (TOC), Inc., 528 U.S. 167, 180-81 (2000) (internal citation omitted). At this preliminary 9 stage of the litigation, Plaintiffs may rely on the allegations in their complaint and 10 whatever other evidence they submit in support of their preliminary injunction motions to 11 meet their burden. Hawaii I, 859 F.3d at 762; Washington, 847 F.3d at 1159. Defendants 12 challenge the standing of both the individual and organizational Plaintiffs. (JFS Resp. at 13 6-7; Doe Resp. at 7.) a. Individual Plaintiffs 14 15 Plaintiffs allege in their complaints that the SAO and FTJ provisions of the 16 Agency Memo extend the separation of citizens and lawful residents in the United States 17 from their family members abroad. (See generally Doe TAC; JFS Compl.) Plaintiffs 18 provide numerous declarations supporting those allegations, which the court has detailed 19 above. See supra § II.B.1-7. Prolonged separation from a family member is an injury in 20 21 22 10 The court does not reach Doe Plaintiffs’ due process claim or JFS Plaintiffs’ Establishment Clause claim. Thus, the court addresses only whether Plaintiffs have standing to challenge the Agency Memo based on their APA and INA claims. ORDER - 20 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page21 100 ofof 65173 1 fact sufficient to establish Article III standing.11 See Hawaii I, 859 F.3d at 763 (holding 2 that a citizen had Article III standing to challenge EO-2 because EO-2 prolonged the 3 separation of the citizen and his family from reunification with his mother-in-law by 4 stalling her visa application); see also Ching v. Mayorkas, 725 F.3d 1149, 1157 (9th Cir. 5 2013) (“The right to live with and not be separated from one’s immediate family is ‘a 6 right that ranks high among the interests of the individual.’”) (quoting Landon v. 7 Plascenia, 459 U.S. 21, 34-35 (1982)); Leiva-Perez v. Holder, 640 F.3d 962, 969-70 (9th 8 Cir. 2011) (recognizing that “important [irreparable harm] factors include separation 9 from family members” (internal quotation marks omitted)); Legal Assistance for 10 Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469, 471-73 (D.C. Cir. 1995), 11 vacated on other grounds, 519 U.S. 1 (1996) (holding that U.S. resident sponsors had 12 standing to challenge DOS’s refusal to process visa applications because the prolonged 13 separation of immediate family members resulted in injury to the sponsors); IRAP, 137 S. 14 Ct. at 2089 (“An American individual . . . that has a bone fide relationship with a 15 particular person seeking to enter the country as a refugee can legitimately claim concrete 16 hardship if that person is excluded.”); Int’l Refugee Assistance Project v. Trump, No. CV 17 TDC-17-0361, 2017 WL 4674314, at *12 (D. Md. Oct. 17, 2017) (citizens and lawful 18 permanent residents established “injury in fact” for purposes of Article III standing 19 because EO-3’s “indefinite ban on the issuance of immigrant and nonimmigrant visas for 20 // 21 22 11 At oral argument, Defendants conceded that separation from “one’s loved ones” can constitute such harm. ORDER - 21 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page22 101 ofof 65173 1 nationals of the Designated Countries has imposed an actual, imminent injury on [the 2 plaintiffs] by prolonging their separation from family members.”). 3 Nevertheless, Defendants argue that none of the individual Plaintiffs have 4 demonstrated that suspension of FTJ refugee processing has caused them harm. First, 5 Defendants argue that Joseph fails to show any injury because his wife and children are 6 from Kenya, and Kenya is one of two countries in which the Government is continuing to 7 process FTJ refugee applications because screening procedures are already in place to 8 ensure appropriate FTJ scrutiny. (Doe Resp. at 2, 6-7; Higgins Decl. ¶ 11 (explaining 9 that in Kenya and Thailand “the security vetting received for a Form I-730 beneficiary is 10 the same as the screening received for principal refugee applicants,” and therefore the 11 Government is continuing to issue travel authorization to approve FTJ refugees who are 12 processed in those locations).) However, as noted above, two of Joseph’s children are 13 considered Somali citizens and are, therefore, subject to the Agency Memo’s SAO 14 provisions. (See Joseph Supp. Decl. ¶ 9.) Accordingly, the processing of their FTJ 15 refugee applications remain on hold. (See id. ¶ 10.) 16 Defendants also argue that Mr. Hussein’s family is in Kenya, and thus he has no 17 standing to challenge the FTJ provisions of the Agency Memo. (JFS Resp. at 6 (citing 18 Higgins Decl. ¶ 11).) However, Mr. Hussein’s family members are also Somali 19 nationals, and therefore subject to the SAO provisions. (See Hussein Decl. ¶¶ 10-11.) 20 Because both Joseph’s and Mr. Hussein’s FTJ refugee applications for their family 21 members are subject to the Agency Memo’s SAO provisions, Joseph and Mr. Hussein 22 have standing to challenge the Agency Memo. Indeed, during the December 21, 2017, ORDER - 22 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page23 102 ofof 65173 1 hearing on Plaintiffs’ motions, Defendants withdrew their argument that Joseph lacked 2 standing. 3 In any event, Doe 7 also has an approved FTJ refugee application for his 19-year 4 old son to come to the United States. (Doe 7 Decl. ¶ 4) Doe 7’s son is an Iraqi national 5 (id. ¶ 3), and so Doe 7’s FTJ application and the processing of his son’s FTJ refugee 6 status are subject to both the FTJ and SAO provisions of the Agency Memo (id. ¶¶ 3-10). 7 Accordingly, the court concludes that Doe 7 has standing. One party with standing is 8 sufficient to fulfill Article III’s case-or-controversy requirement. Rumsfeld v. Forum for 9 Acad. & Institutional Rights, Inc., 547 U.S. 47, 52, n.2 (2006). 10 Nevertheless, Defendants argue that it is speculative to infer that the Agency 11 Memo’s FTJ and SAO provisions are the source of any delay in the processing of Doe 7’s 12 FTJ refugee application as opposed to any other number of factors that might delay a 13 refugee’s application. (JFS Resp. at 6.) Whether Doe 7’s son’s application has other 14 hurdles to cross, however, does not diminish the fact that the SAO and FTJ provisions of 15 the Agency Memo add two more. Removing these hurdles would speed the resolution of 16 any others that may exist since processing of these applications is not presently 17 proceeding at all. (See Agency Memo.) In any event, the evidence before the court is 18 that Doe 7’s FTJ application for his son has been approved, his son has completed his 19 interview and fingerprinting, has received an assurance from a refugee resettlement 20 agency in the United States, and is waiting to travel. (Doe 7 Decl. ¶ 4.) At this stage of 21 the proceedings, this is sufficient to establish harm for purposes of Article III standing 22 with respect to both the SAO and FTJ provisions. ORDER - 23 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page24 103 ofof 65173 1 Defendants also argue that the individual Plaintiffs have no standing to challenge 2 the SAO provisions because the Agency Memo provides for exceptions on a case-by-case 3 basis. (JFS Resp. at 6-7.) Defendants argue that Plaintiffs cannot demonstrate harm until 4 they demonstrate that they “cannot qualify for this exemption.” (See id. at 7 n.4.) In 5 Hawaii I, the Ninth Circuit rejected a virtually identical argument when it concluded that 6 EO-2’s discretionary waiver did not undermine Article III standing. 859 F.3d at 768. 7 Indeed, the Ninth Circuit stated that the plaintiffs would “face substantial hardship if [the 8 court] were to first require that they try to obtain a waiver before [the court] . . . 9 consider[ed] their case.” Id.; see also Hawaii III, 2017 WL 6547095, at *6 (“[EO-3’s] 10 waiver provisions are not a sufficient safety valve and do not mitigate the substantial 11 hardships Plaintiffs have already suffered and will continue to suffer due to [EO-3].”) 12 (internal quotation marks omitted); Int’l Refugee Assistance Project v. Trump, 2017 WL 13 4674314, at *16 (stating in the context of analyzing the ripeness of challenges to EO-3 14 that “the waiver process itself presents an additional hurdle not faced by other visa 15 applicants which would delay reunification, thus creating a harm not contingent on future 16 events”). 17 Finally, Defendants parse the various individual Plaintiffs’ declarations and argue 18 “it is doubtful that these applicants are on the brink of travel such that the 90-day SAO 19 review period will have any concrete impact on them.” (JFS Resp. at 7.) Whether 20 Defendants are on the brink of travel or not, however, their separation from their family 21 members will be prolonged as a result of the SAO provisions. The Agency Memo 22 specifically states that, during the 90-day review, DOS and DHS will “take resources that ORDER - 24 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page25 104 ofof 65173 1 may have been dedicated to processing nationals of, or stateless persons who last 2 habitually resided in, SAO countries and . . . reallocate them to process applicants from 3 non-SAO countries for whom the processing may not be as resource intensive.” (Agency 4 Memo at 2.) Indeed, Defendants conceded that during the suspension the Government is 5 redirecting “processing resources” away from SAO countries and that refugee 6 applications will not be processed at the same pace. Thus, even assuming refugee 7 applications from SAO countries are processed at all during the review period, they will 8 undoubtedly be slowed by this resource diversion, prolonging the individual Plaintiffs’ 9 separation from their family members. 10 In sum, the court concludes that the individual Plaintiffs have sufficiently 11 demonstrated harm due to the SAO provisions and that at least one individual Plaintiff— 12 Doe 7—has sufficiently alleged harm due to the FTJ provisions. The court concludes 13 that the final two aspects of Article III standing—causation and redressability—are also 14 satisfied. These Plaintiffs’ injuries are traceable to EO-4 and its accompanying Agency 15 Memo, and, if Plaintiffs prevail, a decision enjoining portions of the Agency Memo 16 would redress those injuries. 17 18 b. Organizational Plaintiffs Plaintiffs assert that JFS-S and JFS-SV have standing as organizational Plaintiffs 19 because the Agency Memo has caused them to divert resources away from their core 20 mission of resettling refugees. (See JFS PI Mot. at 12; see generally JFS-S Decl.; 21 JFS-SV Decl.) This is ordinarily sufficient to demonstrate harm underpinning Article III 22 standing. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) (diversion of ORDER - 25 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page26 105 ofof 65173 1 resources confers Article III standing); Fair Hous. Council of San Fernando Valley v. 2 Roomate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012) (“[A]n organization has ‘direct 3 standing to sue [when] it showed a drain on its resources from both a diversion of its 4 resources and frustration of its mission.’”) (second alteration in original) (quoting Fair 5 Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)). 6 Defendants argue that JFS-S and JFS-SV have not shown that the Agency Memo 7 impairs their core mission because EO-4 largely resumes USRAP, “subject to conditions 8 for applicants of special concern.” (JFS Resp. at 9.) Further, Defendants contend that, 9 although the Agency Memo may temporarily alter the composition of refugees entering 10 the country, it does not alter the overall number of refugees entering the country. (Id.) 11 Thus, according to Defendants, the organizational mission of the agencies is not 12 impaired. (Id.) 13 JFS-S and JFS-SV, however, cannot make up the deficits in the arrival of FTJ 14 refugees and refugees from SAO countries by receiving and serving other refugees. Each 15 organization devoted significant resources to serving Muslim and Arabic-speaking 16 refugees because these refugees represent a large percentage of their clients, including by 17 hiring staff and designing programs specifically devoted to serving these clients. (JFS-S 18 Supp. Decl. ¶¶ 5-7; JFS-SV Supp. Decl. ¶¶ 3-4.) Yet, the effect of the Agency Memo is 19 likely to be a significant reduction in the admission of Muslim refugees into the United 20 States. Over 40% of all refugees resettled in the United States within the last two fiscal 21 years came from one of the SAO countries. (Smith Decl. ¶ 15.) Of that group, 99% 22 came from one of the nine Muslim-majority SAO countries, and over 80% identified as ORDER - 26 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page27 106 ofof 65173 1 Muslim. (Id. ¶¶ 15, 17.) The Agency Memo’s FTJ provisions are also likely to have a 2 disproportionate effect on Muslim refugees because it is generally available only to 3 refugees admitted in the last two years, 8 C.F.R. § 207.7(d), which is the period of time 4 when the admission of Muslim refugees reached a record high. (Burman Decl. ¶ 41, Ex. 5 NN.) The resources JFS-S and JFS-SV devoted to Muslim and Arabic-speaking refugees 6 cannot simply be shifted to serving other refugees from other parts of the world; instead 7 these resources are wasted, and the agencies’ organizational purpose is thereby frustrated. 8 (See JFS-S Supp. Decl. ¶¶ 6-7; JFS-SV Supp. Decl. ¶ 4); see, e.g., El Rescate Legal 9 Servs., Inc. v. Exec. Office of Immigration Rev., 959 F.2d 742, 748 (9th Cir.1992) (legal 10 services organizations “established to assist Central American refugee clients, most of 11 whom [we]re unable to understand English,” who were seeking asylum and the 12 withholding of deportation, had standing to challenge government policy of not providing 13 full translation of those proceedings).12 Accordingly, the court concludes that both JFS-S 14 and JFS-SV have standing as organizational plaintiffs. 15 JFS-S and JFS-SV also assert third-party standing because they have a close 16 relationship to the individual Plaintiffs whose claims they raise and these individual 17 Plaintiffs are unable to protect their interests on their own. (JFS PI Mot. at 13 (citing 18 19 20 21 22 12 The El Rescate court expounded on the issue of organizational standing immediately after declaring the issue moot, 959 F.2d at 748, and so this portion of the decision is arguably dicta. However, at least one subsequent Ninth Circuit panel described this part of El Rascate as a holding. See Fair Hous. of Marin, 285 F.3d at 904-05 (“This Court . . . held that “[t]he allegation that the [the government’s] policy frustrates these goals [of helping refugees obtain asylum and withhold deportation] and requires the organizations to expend resources in representing clients they otherwise would spend in other ways is enough to establish standing.”) (second and fourth alterations in original) (emphasis added). ORDER - 27 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page28 107 ofof 65173 1 Powers v. Ohio, 499 U.S. 400, 410-11 (1991)).) Defendants’ only response is that the 2 organization’s clients have suffered no injury. (JFS Resp. at 9, n.7.) The court, however, 3 concludes otherwise. See supra § III.A.1.a. Accordingly, the court also concludes based 4 on the record presented at this point in the proceedings that JFS-S and JFS-SV have third- 5 party standing. 6 2. Statutory Standing 7 Although Defendants do not raise this issue, because the various individual 8 Plaintiffs, as well as JFS-S and JFS-SV, assert a statutory claim under the INA, the court 9 “must also determine whether they meet the requirement of having interests that ‘fall 10 within the zone of interests protected by the law invoked.’” Hawaii I, 859 F.3d at 766 11 (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., --- U.S. ---, 134 S. Ct. 12 1377, 1388 (2014)). The “‘zone of interests’ test is ‘not meant to be especially 13 demanding,’ and a court should deny standing only ‘if the plaintiff’s interests are so 14 marginally related to or inconsistent with the purposes implicit in the statute that it cannot 15 reasonably be assumed that Congress intended to permit the suit.’” Cetacean Cmty. v. 16 Bush, 386 F.3d 1169, 1177 (9th Cir. 2004) (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 17 388, 399 (1987)). The “benefit of any doubt goes to the plaintiff.” Match-E-Be-Nash- 18 She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012). 19 In Hawaii I, the Ninth Circuit had “little trouble concluding that [the citizen 20 plaintiff] [wa]s within the zone of interests of the INA to challenge EO2 based on [his 21 INA] statutory claim,” because “[h]e assert[ed] that the travel ban prevents his mother-in- 22 law from reuniting with his family.” 859 F.3d at 766 (citing Legal Assistance for ORDER - 28 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page29 108 ofof 65173 1 Vietnamese Asylum Seekers, 43 F.3d at 471-72 (“The INA authorizes the immigration of 2 family members of the United States citizens and permanent resident aliens. In originally 3 enacting the INA, Congress implemented the underlying intention of our immigration 4 laws regarding preservation of the family unit. Given the nature and purpose of the 5 statute, the resident appellants fall well within the zone of interest Congress intended to 6 protect.”) (internal quotation marks, citations, and alterations omitted)). Does 3 and 6, a 7 lawful permanent resident and a citizen, respectively, both claim that the Agency Memo 8 prevents reuniting with their family members. See supra §§ II.B.5, 7. The court finds no 9 legitimate basis for distinguishing the present situation from that of the plaintiff in 10 Hawaii I. Accordingly, the court concludes that Does 3 and 6 fall within the zone of 11 interest of the INA and the Refugee Act of 1980. 12 JFS-S and JFS-SV Plaintiffs also fall within the zone of interest of the INA and 13 the Refugee Act of 1980. In Hawaii I, the Ninth Circuit held that the States’ “interest in 14 effectuating its refugee resettlement policies and programs also falls within the zone of 15 interests protected by the INA.” 859 F.3d at 766. The Ninth Circuit noted that INA 16 provisions concerning refugees “were amended to provide a ‘systematic procedure’ for 17 the admission of refugees into the United States, as well as ‘uniform provisions for the 18 effective resettlement and absorption of those refugees admitted.’” Id. at 766-67 (quoting 19 Refugee Act of 1980, Pub. L. No. 96-212, § 101, 94 Stat. 102 (1980)). Making 20 provisions for the resettlement and absorption of refugees into the United States is the 21 core mission of both JFS-S and JFS-SV. (JFS-S Decl. ¶¶ 2-7, 15-16, 30, 34; JFS-SV 22 Decl. ¶¶ 11, 18, 36-37.) Thus, these organizations’ interests in effectuating refugee ORDER - 29 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page30 109 ofof 65173 1 resettlement and absorption falls within the zone of interest protected by the INA and the 2 Refugee Act of 1980.13 3 3. Nonreviewability 4 Like they have in other cases involving the President’s various EOs on 5 immigration, Defendants assert that the “doctrine of consular nonreviewability” applies 6 to bar the court’s review of Doe and JFS Plaintiffs’ statutory claims. (See Doe Resp. at 7 8-10; JFS Resp. at 12-13.) Courts have traditionally applied the doctrine of consular 8 nonreviewability to bar challenges to decisions by consular officials adjudicating 9 individual visa applications. See Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 10 (9th Cir. 1986) (“[I]t has been consistently held that the consular official’s decision to 11 issue or withhold a visa is not subject either to administrative or judicial review.”). 12 Defendants rely on out-of-circuit authority to argue for a significant expansion of the 13 doctrine and support their position by stating that “[t]he principle underlying that doctrine 14 applies regardless of the manner in which the Executive Branch denies entry to an alien 15 abroad, including a refugee applicant.” (See Doe Resp. at 8 (citing Haitian Refugee Ctr., 16 Inc. v. Baker, 953 F.2d 1498, 1506 (11th Cir. 1992).)14 17 18 19 20 21 22 13 The court does not decide if Plaintiffs who are located abroad have statutory standing under the INA because “[i]f one party to an action has standing, a court need not decide the standing issue as to other parties when it makes no difference to the merits of the case.” See Legal Assistance for Vietnamese Asylum Seekers, 45 F.3d at 472 (declining to decide if refugees in Hong Kong or the organizational plaintiff had standing because the court had already found that the family members of refugees in the United States were within the zone of interest of the INA). 14 In Baker, the Eleventh Circuit relied in part on the doctrine of consular nonreviewability to preclude review of an Executive Order and agency guidelines that were ORDER - 30 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page31 110 ofof 65173 1 But the Ninth Circuit has already rejected Defendants’ position. Just as in 2 Hawaii I, individual Plaintiffs here “do not seek review of an individual consular 3 officer’s decision to grant or to deny a visa pursuant to valid regulations, which could 4 implicate the consular nonreviewability doctrine,” but rather the government’s 5 “promulgation of sweeping immigration policy.” 859 F.3d at 768. “Courts can and do 6 review both constitutional and statutory ‘challenges to the substance and implementation 7 of immigration policy.’” Id. (quoting Washington, 847 F.3d at 1163; see Hawaii III, 8 2017 WL 6547095, at *6-*7 (concluding that the doctrine of consular nonreviewability 9 did not apply to bar the court’s review of EO-3); see also Sale v. Haitian Ctrs. Council, 10 Inc., 509 U.S. 155 (1993) (without discussing consular nonreviewabilty, but over the 11 Government’s objections that the doctrine applied and barred review, reviewing the 12 merits of a statutory claim challenging an EO that blocked the entry of Haitians); Sale v. 13 Haitian Ctrs. Council, Inc., 1993 WL 754941 (U.S.), 16-22 (U.S. Oral. Arg., 1993) 14 (arguing that the doctrine bars review). Thus, the court rejects Defendants’ assertion that 15 this doctrine bars judicial review of EO-4 and the Agency Memo.15 16 17 18 19 20 21 22 promulgated thereunder, which provided for the interdiction and return of Haitians on the high seas who were deemed to be economic rather than political refugees. 953 F.2d at 1507. 15 In Hawaii I, the Ninth Circuit declined to apply Mandel’s “facially legitimate and bona fide” standard in the context of a statutory challenge to EO-2. 859 F.3d at 769 n.9. The court recognizes that the Supreme Court vacated Hawaii following the expiration of EO-2. See Hawaii v. Trump, 874 F.3d 1112, 1112 (9th Cir. 2017) (“In view of the Supreme Court order dated October 24, 2017, the court's opinion filed June 12, 2017, is vacated and the appeal is dismissed as moot.”). But Hawaii I, 859 F.3d at 769 n.9, remains persuasive authority despite the Supreme Court’s vacatur. See Orhorhaghe v. INS, 38 F.3d 488, 493 n.4 (9th Cir. 1994) (following as persuasive authority a decision vacated by the Supreme Court as moot). Hawaii I is closely analogous and related to the issues presently before this court, and as a district court within the Ninth Circuit, this court is unwilling to ignore it or depart from its reasoning. ORDER - 31 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page32 111 ofof 65173 1 4. Final Agency Action 2 Finality is a prerequisite to judicial review of agency action. See 5 U.S.C. § 704. 3 To be final, the agency action first “must mark the consummation of the agency’s 4 decisionmaking process—it must not be of a merely tentative or interlocutory nature.” 5 Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 591 (9th Cir. 6 2008). Second, the action “must be one by which rights or obligations have been 7 determined, or from which consequences will flow.” Id. Defendants do not contest the first requirement. (See JFS Resp. at 14-15; Doe 8 9 Resp. at 11-12.) But Defendants contend that, even if Plaintiffs could show the first 10 requirement, they cannot show the second requirement “because the implementation 11 period does not determine any rights or obligations or prescribe any legal consequences.” 12 (JFS Resp. at 14-15; Doe Resp. at 11.) Indeed, according to Defendants, a processing 13 // 14 15 16 17 18 19 20 21 22 Nevertheless, during oral argument, Defendants argued that the Supreme Court’s decision in Fiallo v. Bell, 430 U.S. 787 (1977), trumped the Ninth Circuit’s rulings in both Hawaii I, 859 F.3d at 769 n.9, and Washington, 847 F.3d at 1161-64, concerning the applicability of the Mandel standard. However, Fiallo is distinguishable. In Fiallo, the Supreme Court was not considering a challenge to agency action that was alleged to be ultra vires or outside of the agency’s statutory authority under the INA. Rather, Fiallo involved an action to enjoin provisions of the INA itself as constitutionally invalid. 430 U.S. at 788 (“This case brings before us a constitutional challenge to §§ 101(b)(1)(D) and 101(b)(2) of the Immigration and Nationality Act of 1952.”). In that context, the Supreme Court noted the “limited scope of judicial inquiry into immigration legislation” and emphasized “‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Id. at 792 (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909) (emphasis added)). Accordingly, the Court limited its review of the statutory provision at issue to the “facially legitimate and bona fide” standard found in Mandel. Id. at 795 (citing Mandel, 408 U.S. at 770). Because the issues before this court involve a statutory challenge to agency action in the form of the Agency Memo, and not a constitutional challenge to any provision of the INA, Fiallo is not applicable here. ORDER - 32 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page33 112 ofof 65173 1 delay alone does not alter the family’s “legal situation,” and thus the FTJ implementation 2 program is not a final agency action subject to judicial review.16 (Id.) 3 To the contrary, whether the Agency Memo produces a “suspension” or an 4 indefinite delay, the Agency Memo has significant real-world impacts on Plaintiffs’ 5 various situations. See Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (explaining 6 that “the core question is whether . . . the result of that [challenged agency] process is one 7 that will directly affect the parties.”). Under similar circumstances involving EO-3, the 8 district court in Maryland stated: “As for Defendants’ claim that the agency action to 9 date is not ‘final,’ [EO-3] is already in effect as to certain individuals and is being 10 enforced by federal agencies.” Int’l Refugee Assistance Project v. Trump, 2017 WL 11 4674314, at *18. The same is true here. As discussed above, the individual Plaintiffs are 12 subject to the Agency Memo’s provisions, and the effect of those provisions is to prolong 13 the separation of family members in some cases and prevent escape from perilous 14 15 16 17 18 19 20 21 22 16 The cases Defendants rely upon are readily distinguishable. In Fairbanks, the Ninth Circuit held that the Army Corps of Engineers’ determination that certain municipal property contained wetlands subject to regulation under the Clean Water Act was only “a bare statement of the agency’s opinion” that neither required the municipality to do or to forebear from anything. 543 F.3d at 594. As such, the Corps’ opinion did not determine any of the municipality’s rights or obligations or result in any legal consequences. Id. at 595. Defendants’ reliance on International Brotherhood of Teamsters v. U.S. Department of Transportation, 861 F.3d 944, 952 (9th Cir. 2017), is also misplaced. In that case, an agency’s report on a pilot program involving Mexico-domiciled trucking companies’ long-haul operations in the United States had no legal consequences, but was merely the last step in completing a pilot program to clear the way for Mexico-domiciled carriers. Id. As such, the report “did not change the legal situation” and was not, therefore, final agency action. Id. In contrast to the opinion and report in the cases cited by Defendants, the Agency Memo’s FTJ and SAO provisions are presently being implemented by USCIS. (See Higgins Decl. ¶¶ 11-16.) Those requirements have concrete impacts upon Plaintiffs by delaying the reunification of families or the departure from dangerous circumstances. See supra §§ II.B.1-7. ORDER - 33 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page34 113 ofof 65173 1 circumstances in others. See supra § IIB.1-7. And, as the Ninth Circuit in Hawaii II 2 noted, even short delays can have cascading effects that prolong a refugee’s processing 3 and ultimate admission. 871 F.3d at 644 (“Refugees have only a narrow window of time 4 to complete their travel, as certain security and medical checks expire and must then be 5 re-initiated. Even short delays may prolong a refugee’s admittance.”); (see also JFS-S 6 Supp. Decl. ¶ 8 (explaining the cascading effects of even a short delay in processing).) 7 Based on the foregoing record and authorities, the court concludes that the Agency Memo 8 represents final agency action. 9 10 5. Agency Discretion Defendants argue in two conclusory sentences that the court is stripped of 11 jurisdiction to review Plaintiffs’ statutory challenges to the Agency Memo’s SAO 12 provisions under 5 U.S.C. § 701(a). (See JFS Resp. at 15.) Specifically, Defendants 13 argue that 8 U.S.C. § 1157(c)(1) commits the admission of refugees to the Secretary’s 14 discretion, whereas 5 U.S.C. § 701(a) prohibits APA review of agency action that “is 15 committed to agency discretion by law.” The court rejects Defendants’ argument. There 16 is a “strong presumption that Congress intends judicial review of administrative action.” 17 Helgeson v. Bureau of Indian Affairs, 153 F.3d 1000, 1003 (9th Cir. 1998). Section 18 701(a) overcomes this presumption only in “rare instances where statutes are drawn in 19 such broad terms that in a given case there is no law to apply, thereby leaving the court 20 with no meaningful standard against which to judge the agency’s exercise of discretion.” 21 Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 719 (9th Cir. 2011). “[T]he mere 22 fact that a statute contains discretionary language does not make agency action ORDER - 34 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page35 114 ofof 65173 1 unreviewable.” Id. Indeed, section 701(a)(2) has “never been thought to put exercises of 2 discretion beyond judicial review.” ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1071 (9th 3 Cir. 2015). 4 ASSE International, Inc. v. Kerry presents an analogous situation. See 803 F.3d. at 5 1069-72. In that case, although the authorizing statute gave the DOS complete discretion 6 in determining whether to create certain exchange programs, the Ninth Circuit found that 7 the DOS’s regulations “provide more than an ample basis in law for [the court] to review 8 its decision under the APA.” Id. at 1070. These regulations created the program, provide 9 who is eligible to become a sponsor, and “establish[ed] a comprehensive scheme for 10 administering an exchange program.” Id. Because these regulations “have the force of 11 law” and carry “real consequences for [those] failing to abide by them,” the Ninth Circuit 12 concluded that judicial review was not prevented by the discretionary language in the 13 authorizing statute. Id. at 1070-71. 14 Defendants have similarly failed to rebut the strong presumption of judicial 15 reviewability. Although 8 U.S.C. § 1157(c)(1) contains discretionary language, the 16 subsequent regulations promulgated by DHS provide the “meaningful standard” by which 17 the court can review Defendants’ exercise of discretion. See 8 C.F.R. § 207; Pinnacle 18 Armor, Inc., 648 F.3d at 719. Like the regulations in ASSE International, the regulations 19 governing the admission of refugees implement the Refugee Act of 1980, detail 20 eligibility to apply for refugee status, and lay out “a comprehensive scheme” for the 21 refugee program. See 803 F.3d at 1070; 8 C.F.R. §§ 207.1-9. These regulations are 22 binding, and failure to abide by these regulations results in “real consequences.” See 803 ORDER - 35 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page36 115 ofof 65173 1 F.3d at 1070; 8 U.S.C. § 1157(c)(1). Thus, as in ASSE International, the regulations 2 provide a “meaningful standard” and “more than an ample basis in law” against which to 3 judge the Defendants’ decisions under the APA. See also Hawaii III, 2017 WL 6547095, 4 at *8 (concluding that 5 U.S.C. § 701(a)(2) did not apply to bar review of EO-3 “where, 5 as here, a court is tasked with reviewing whether an executive action has exceeded 6 statutory authority”). 7 8 9 10 Nor does 8 U.S.C. § 1252(a)(2)(B)(ii) strip the court of jurisdiction over this action.17 Section 1252(a)(2)(B)(ii) states that no court shall have jurisdiction to review: Any other decisions or action of the Attorney General or Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security[.] 11 Section 1157(c)(1) specifies that the admission of refugees is within the Secretary’s 12 discretion. Were Plaintiffs challenging a denial of refugee admission, section 13 1252(a)(2)(B)(ii) may well bar judicial review. Instead, Plaintiffs are challenging the 14 failure to act on refugee applications. And while section 1157(c)(1) grants the Secretary 15 discretion in deciding the outcome of a refugee application, it does not specify that the 16 Secretary has discretion to suspend adjudicating such applications. See 8 U.S.C. 17 § 1157(c)(1). In other words, the Secretary may have discretion over what the decision 18 will be, but not over whether a decision will be made. See 5 U.S.C. § 555(b) (“With due 19 20 21 22 17 Defendants do not mention 8 U.S.C. § 1252(a)(2)(B)(ii) in their discussion of jurisdiction stripping, focusing instead only on 5 U.S.C. § 701(a). (See JFS Resp. at 15.) However, because section 1252(a)(2)(B)(ii) implicates the court’s subject matter jurisdiction, the court addresses the issue. ORDER - 36 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page37 116 ofof 65173 1 regard for the convenience and necessity of the parties or their representatives and within 2 a reasonable time, each agency shall proceed to conclude a matter presented to it.” 3 (emphasis added)). Thus, neither section 1157(c)(1) nor any other statute provides the 4 “specified” discretionary authority to suspend adjudicating refugee status that would 5 trigger section 1252(a)(2)(B)(ii)’s bar on judicial review.18 See Spencer Enters., Inc. v. 6 United States, 345 F.3d 683, 690 (9th Cir. 2003). 7 Alternatively, section 1252(a)(2)(B)(ii) does not divest this court of jurisdiction 8 because it applies only to acts that are “matters of pure discretion, rather than discretion 9 guided by legal standards.” See Spencer, 345 F.3d at 690. The decision regarding 10 refugee admission, however, is guided by a series of eligibility requirements set out in 11 sections 1157(c)(1) and 1101(a)(42). See 8 U.S.C. §§ 1101(a)(42), 1157(c)(1). 12 Moreover, section 1157(c)(1) requires the Secretary to adhere to all adopted regulations, 13 and as discussed above, the Secretary has promulgated such regulations that provide 14 specific standards limiting its discretion. For these reasons, it is not certain that the 15 Secretary’s obligations with respect to processing refugee applications are discretionary 16 within the meaning of section 1252(a)(2)(B)(ii), as construed in Spencer. 17 // 18 // 19 20 21 22 18 Many district courts have adopted this reasoning in the analogous context of immigration status adjustments. See, e.g., Asmai v. Johnson, 182 F. Supp. 3d 1086, 1091-92 (E.D. Cal. 2016); see also Hong Wang v. Chertoff, 550 F. Supp. 2d 1253, 1256-57 (W.D. Wash. 2012) (collecting cases). When the statute grants discretion only as to the ultimate decision but not as to the timing of when that decision is made, jurisdiction is not barred by section 1252(a)(2)(B)(ii). See, e.g., Dong v. Chertoff, 513 F. Supp. 2d 1158, 1165 (N.D. Cal. 2007). ORDER - 37 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page38 117 ofof 65173 1 In sum, neither 5 U.S.C. § 701(a) nor 8 U.S.C. § 1252(a)(2)(B)(ii) bar the court 2 from hearing this matter. Having disposed of Defendants’ justiciability arguments, the 3 court now turns to the substance of Plaintiffs’ motions for preliminary injunction. 4 B. 5 Motions for Preliminary Injunction Doe Plaintiffs seek to enjoin both the SAO and FTJ provisions of the Agency 6 Memo to the extent those provisions indefinitely suspend the processing of FTJ refugee 7 applications or prohibit the entry of FTJ refugees into the United States. (See generally 8 Doe PI Mot.; Doe Reply; see also Doe TAC.) The JFS Plaintiffs join in this motion. 9 (See JFS Joinder; JFS PI Mot. at 22-23.) In the JFS Case, Plaintiffs also seek to enjoin 10 the SAO provisions of the Agency Memo to the extent those provisions suspend the 11 admission of refugees or inhibit the processing of refugee applications from those SAO 12 countries for 90 days. (See generally JFS PI Mot.; JFS Reply; see also JFS Compl.) Doe 13 Plaintiffs join in this motion as well. (See Doe Joinder.) 14 The court also clarifies what Plaintiffs in both cases do not seek. Plaintiffs do not 15 seek to enjoin the agencies’ efforts to implement screening mechanisms for FTJ refugees 16 that are similar to or aligned with the processes employed for principal refugees. 17 Plaintiffs do not seek to enjoin the agencies from conducting their 90-day “detailed threat 18 analysis and review” of the SAO countries to determine what additional safeguards the 19 agencies believe are necessary with respect to the admission of refugees from those 20 countries. And finally, Plaintiffs do not seek a guarantee of immediate admission into the 21 United States for the refugees at issue. (See Doe Reply at 9.) Rather, as indicated above, 22 they seek an order preliminarily enjoining those provisions of the Agency Memo that (1) ORDER - 38 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page39 118 ofof 65173 1 prohibit the admission of refugees from SAO countries and impede the processing of 2 their refugee applications for 90-days, and (2) indefinitely prohibit the admission of FTJ 3 refugees and indefinitely suspend the processing of their refugee applications. With 4 those clarifications, the court now considers their motions. 5 1. Standard 6 “A preliminary injunction is ‘an extraordinary remedy that may only be awarded 7 upon a clear showing that the plaintiff is entitled to such relief.’” Feldman v. Ariz. Sec’y 8 of State’s Office, 843 F.3d 366, 375 (9th Cir. 2016) (quoting Winter v. Nat. Res. Def. 9 Council, 555 U.S. 7, 22 (2008)). To obtain such relief, “[a] plaintiff . . . must establish 10 that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the 11 absence of preliminary relief, that the balance of equities tips in his favor, and that an 12 injunction is in the public interest.” Winter, 555 U.S. at 20. A plaintiff must make a 13 clear showing as to each of these elements.19 Feldman, 843 F.3d at 375. 14 2. Notice and Comment Rulemaking under the APA 15 Plaintiffs assert that the court should set aside the Agency Memo as it relates to 16 both the indefinite FTJ suspension and the 90-day SAO suspension because it represents 17 a “legislative rule” for which notice and comment rulemaking under the APA is required. 18 (Doe PI Mot. at 14-15; JFS PI Mot. at 19-20.) “Under the APA, a federal administrative 19 20 21 22 19 In the Ninth Circuit, “‘if a plaintiff can only show that there are ‘serious questions going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Feldman, 843 F.3d at 375 (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1282, 1291 (9th Cir. 2013)). Here, because the court concludes that Plaintiffs meet the Winter standard for issuing a preliminary injunction, there is no need for the court to consider the alternate standard. ORDER - 39 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page40 119 ofof 65173 1 agency is required to follow prescribed notice-and-comment procedures before 2 promulgating substantive rules.” Colwell v. Dep’t of Health & Human Servs., 558 F.3d 3 1112, 1124 (9th Cir. 2009); see 5 U.S.C. § 553. Courts require agencies to engage in 4 notice and comment rulemaking when implementing policy changes with substantive 5 consequences for refugees and other immigrants. See, e.g., Texas v. United States, 809 6 F.3d 134, 171-78 (5th Cir. 2015) (as revised), aff’d by an equally divided 7 court, --- U.S. ---, 136 S. Ct. 2271 (2016) (holding that plaintiffs were likely to succeed 8 on the merits of their APA claim that notice and comment rulemaking required for 9 immigration policy granting deferred action status to certain undocumented immigrants); 10 Zhang v. Slattery, 55 F.3d 732, 744-47 (2d Cir. 1995), superseded by statute on other 11 grounds, 8 U.S.C § 1101(a)(42) (finding notice and comment rulemaking is required for 12 the agency’s interim rule recognizing fear of coercive family practices as basis for 13 refugee status). 14 Defendants do not deny that the Agency Memo represents a rule; rather, they 15 argue the Agency Memo is exempt from APA rulemaking procedures because it 16 represents a procedural—not substantive—rule for which a notice and comment period is 17 not required. (Doe Resp. at 16; JFS Resp. at 18-19); see 5 U.S.C. § 553(b)(3)(A) (stating 18 that APA rulemaking “does not apply . . . to interpretive rules, general statements of 19 policy, or rules of agency organization, procedure, or practice”). Defendants argue that 20 the Agency Memo does not change the substantive criteria for determining whether a 21 refugee applicant can be admitted to the United States, it merely suspends the admission 22 of refugees from SAO countries for 90 days and the admission of FTJ refugees until such ORDER - 40 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page41 120 ofof 65173 1 time as the agencies can align the screening procedures for FTJ refugees with the 2 screening procedures employed for principal refugees. (Doe Resp. at 17; JFS Resp. at 3 18-19.) 4 The court need not accept an agency’s characterization of its own rule. Hemp 5 Indust. Ass’n v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003); see also Reno-Sparks Indian 6 Colony v. U.S. E.P.A., 336 F.3d 899, 909 (9th Cir. 2003) (“The agency is not entitled to 7 deference [concerning its decision not to engage in rulemaking] because complying with 8 the notice and comment provisions when required by the APA is not a matter of agency 9 choice.”) (internal quotation marks omitted). Further, the exceptions to APA rulemaking 10 must be “narrowly construed and only reluctantly countenanced.” Alcaraz v. Block, 746 11 F.2d 593, 612 (9th Cir. 1984). At times, distinguishing between rules that require APA 12 rulemaking and those that do not is challenging. Stoddard Lumber Co. v. Marshall, 627 13 F.2d 984, 987 (9th Cir. 1980) (noting that distinguishing between such rules “has proved 14 to be quite difficult”). There are, however, guideposts as described in the authority relied 15 upon by Defendants. (See JFS Resp. at 19; Does Resp. at 17-19.) Whether a rule is 16 “substantive” or “procedural” requires a court to make “legal conclusions that depend 17 upon their settings for definition.” Neighborhood Television, Inc. v. FCC, 742 F.2d 629, 18 637 (D.C. Cir. 1984); Brown Exp., Inc. v. United States, 607 F.2d 695, 701 (5th Cir. 19 1979). To determine the nature of a rule, the court must look at the rule’s effect on those 20 interests ultimately at stake in the agency proceeding. Neighborhood Television, 742 21 F.2d at 637. If a rule does not substantially affect or jeopardize those ultimate interests, 22 // ORDER - 41 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page42 121 ofof 65173 1 then it is procedural and not substantive. Waste Mgmt., Inc. v. U.S.E.P.A., 669 F. Supp. 2 536, 539 (D.D.C. 1987). In short, context matters. 3 In their response to Plaintiffs’ motion, Defendants rely on two thirty-plus-year-old 4 decisions out of the District of Columbia—neither of which is analogous to the 5 facts-at-hand. (Doe Resp. at 17-18.) In Waste Management, 669 F. Supp. at 538-40, the 6 court held that the agency issued a procedural rule when it decided to defer consideration 7 of applications for ocean incineration permits until the agency promulgated new rules on 8 the topic. In Neighborhood Television, 742 F.2d at 636-38, the court determined that an 9 agency’s decision to “freeze” processing of certain applications for television translator 10 licenses was also a procedural rule. The status sought by Plaintiffs here—refugee 11 status—is far-afield from either an ocean incineration permit or a television translator 12 license. Further, in both cases, the courts focused on the fact that the delay caused by a 13 suspension did not by itself undermine the interests at stake, and in both situations, the 14 delay itself was related to the agencies’ ongoing notice and comment rulemaking efforts. 15 See Waste Mgmt., 669 F. Supp. at 539-40; Neighborhood Television, 742 F.2d at 636-38. 16 Unlike the challengers’ interests in those cases, Plaintiffs’ interests—to reunite with 17 family members or to flee perilous situations and find refuge in the United States—are 18 undermined by any delay. Hawaii II, 871 F.3d at 644 (“Refugees have only a narrow 19 window of time to complete their travel, as certain security and medical checks expire 20 and must then be re-initiated. Even short delays may prolong a refugee’s admittance.”); 21 (see also JFS-S Supp. Decl. ¶ 8 (explaining the cascading effects of even a short delay in 22 processing).) ORDER - 42 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page43 122 ofof 65173 1 Further, 8 C.F.R. part 207, the regulations implementing the Refugee Act of 1980, 2 and subsequent amendments outlining procedures for the FTJ program, were subject to 3 notice and comment before they were codified. See Aliens and Nationality; Refugee and 4 Asylum Procedures, 46 Fed. Reg. 45,116 (Sept. 10, 1981) (to be codified at 8 C.F.R. pt. 5 207); Procedures for Filing a Derivative Petition (Form I-730) for a Spouse and 6 Unmarried Children of a Refugee/Asylee, 63 Fed. Reg. 3792 (Jan. 27, 1988) (to be 7 codified at 8 C.F.R. § 207.7). Where the original rule was adopted after a notice and 8 comment period, courts have generally found the decision to alter those rules to be 9 substantive, and therefore subject to APA rulemaking procedures as well. See, e.g., 10 Sequoia Orange Co. v. Yeutter, 973 F.2d 752, 757 (9th Cir. 1992) (ruling that the 11 decision to alter voting procedures was subject to APA rulemaking requirement because 12 the original voting procedures were adopted after notice and comment); Arlington Oil 13 Mills, Inc. v. Knebel, 543 F2d 1092, 1100 (5th Cir. 1976). 14 In addition, “[w]hen a policy acts as a substantive rule and alters an existing 15 regulatory scheme,” the agency “must adopt that policy according to procedures set forth 16 in the APA.” Mt. Diablo Hosp. Dist. v. Bowen, 860 F.2d 951, 956 (9th Cir. 1988). The 17 Agency Memo indefinitely suspends the entire FTJ refugee program, and it suspends the 18 admission of all refugees (with limited exceptions) from the 11 SAO countries. As 19 discussed above, the regulatory scheme for processing principal and derivative refugees, 20 such as FTJ refugees, is set forth in detail in 8 C.F.R. part 207. The court has little 21 // 22 // ORDER - 43 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page44 123 ofof 65173 1 difficulty in concluding that such changes “alter” that “existing regulatory scheme.” 20 2 See Mt. Diablo, 860 F.2d at 956. 3 Defendants also assert that the SAO provisions are exempt from rulemaking 4 because they fall within the APA’s foreign affairs exception. (JFS Resp. at 19-20); see 5 5 U.S.C. § 553(a)(1) (“This section applies . . . except to the extent that there is involved 6 . . . a . . . foreign affairs function of the United States.”). The Ninth Circuit cautions that 7 the “foreign affairs exception would become distended if applied to INS actions 8 generally, even though immigration matters typically implicate foreign affairs.” Yassini 9 v. Crosland, 618 F.2d 1356, 1360 (9th Cir. 1980). Indeed, “[f]or the exception to apply, 10 the public rulemaking provisions should provoke definitely undesirable international 11 consequences.” Id. Although the Ninth Circuit cautioned that a rule of law “that would 12 inhibit the flexibility of the political branches should be adopted with only the greatest of 13 caution,” nevertheless “[r]eview of decisions involving aliens . . . remains available.” Id. 14 Defendants rely on Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir. 2008), in which 15 the Second Circuit reviewed the National Security Entry-Exit Registration System, a 16 program devised after September 11, 2001, that required registration for certain 17 individuals from specific countries. (See JFS Resp. at 19-20.) The Second Circuit found 18 that rulemaking was not required due to the foreign affairs exception. Rajah, 544 F.3d at 19 437. The Second Circuit was concerned that in explaining why some of a particular 20 21 22 20 In addition, those refugees who fall within the SAO provisions of the Agency Memo and who would otherwise meet the definition of “refugee” are now barred from admission for at least 90 days unless they can demonstrate the additional, agency-created requirement that their admission would “fulfill critical foreign policy interests.” (Agency Memo at 2.) ORDER - 44 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page45 124 ofof 65173 1 nation’s citizens were regarded as a threat, (1) sensitive foreign intelligence might be 2 revealed, (2) relations with other countries might be impaired, and (3) the process would 3 be slow and diminish the Government’s ability to protect against a potential terrorist 4 attack. Id. 5 The court agrees with Plaintiffs, however, that Rajah is inapposite for a number of 6 reasons. (See JFS Reply at 9.) First, Plaintiffs do not seek rulemaking on whether 7 particular countries should be on the SAO list, but rather on whether and how the USRAP 8 should be suspended while the review is conducted. (See id.) Second, it is not evident 9 that such rulemaking would “provoke definitively undesirable international 10 consequences,” see Yassini, 618 F.2d at 1360 n.4, and Defendants proffer no evidence 11 that it would (see generally Dkt.). The court is simply unwilling to apply the exception 12 without some evidence to support its application. Compare Yassini, 618 F.2d at 1360-61 13 (applying the exception only after examining the affidavits of the Attorney General and 14 Deputy Secretary of State establishing the directive’s relationship to the Iran hostage 15 crisis); with Jean v. Nelson, 711 F.2d 1455, 1477 (11th Cir. 1983) (holding that a rule 16 directing the detention of Haitians at the border was not within the exception given the 17 lack of evidence of any consequences), aff’d, 472 U.S. 846 (1985). 18 Finally, when the Rajah and Yassini courts applied the foreign affairs exception, 19 they were grappling with agency directives issued in response to dire national 20 emergencies—the September 11 attack and the Iranian hostage crisis. See Rajah, 544 21 F.3d at 433; Yassini, 618 F.2d at 1361. Although not determinative, the circumstances in 22 which the courts applied the exception provides context for their decisions. Here, ORDER - 45 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page46 125 ofof 65173 1 Defendants offer no evidence that the agencies issued the SAO suspension in response to 2 a national security or foreign affairs crisis. Indeed, all the Agency Memo states to justify 3 the 90-day suspension of refugees from SAO countries (with limited exceptions) is that 4 the Secretaries of DOS and DHS and the DNI “continue” to have unspecified “concerns” 5 regarding their admission. (Agency Memo at 2.)21 Thus, the exigent factual 6 circumstances under which the agency directives were issued in Yassini and Rajah is 7 another distinguishing factor that diminishes the applicability of those cases here. 8 9 For the foregoing reasons, the court agrees with Plaintiffs that the foreign affairs exception to rulemaking is inapplicable to the SAO provisions and that the agencies 10 should have engaged in APA rulemaking before issuing both the SAO and FTJ 11 provisions at issue in the Agency Memo. Accordingly, the court concludes that Plaintiffs 12 have demonstrated that they are likely to succeed on the merits of their claim that the 13 agencies violated the APA’s rulemaking requirement.22 14 // 15 // 16 // 17 18 19 20 21 22 21 The court notes that the only evidence in the record is to the contrary—that operating USRAP in SAO countries does not pose a significant risk to the country. (Joint Decl. Former Nat’l Sec. Officers (17-1707 Dkt. # 46) ¶ 12 (“During the four decades from 1975 to the end of 2015, over three million refugees have been admitted to the United States. Despite this number, only three refugees have killed people in terrorist attacks on U.S. soil during this period. None of these refugees were from the [SAO] countries.”).) Instead, the evidence before the court is that the SAO provisions of the Agency Memo undermine the country’s national security and foreign policy interests, “rather than making us safer.” (Id. ¶ 14.) 22 Concluding that Plaintiffs are likely to succeed on the merits of this statutory claim is sufficient to fulfill this requirement for preliminary relief. Nevertheless, the court also considers a second statutory claim. ORDER - 46 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page47 126 ofof 65173 1 3. INA Challenges 2 Plaintiffs also argue that the Agency Memo violates the INA. The Doe Plaintiffs 3 argue that the FTJ provisions of the Agency Memo violate 8 U.S.C. § 1157(c)(2)(A) of 4 the INA by indefinitely suspending the processing of FTJ derivative refugee applications 5 and indefinitely barring their entry into the country. (Doe PI Mot. at 9-12.) The JFS 6 Plaintiffs argue that the SAO provisions of the Agency Memo are ultra vires under the 7 APA because they suspend the processing of refugee applications from SAO countries 8 and bar the entry of refugees from those countries (with limited exceptions) for at least 90 9 days in violation of 8 U.S.C. § 1157(c)(1) of the INA. (JFS PI Mot. at 19, 21-22.) 10 The APA provides a right of action for plaintiffs who challenge administrative 11 actions that violate a federal statute. Any “person . . . adversely affected or aggrieved by 12 agency action within the meaning of a relevant statute, is entitled to judicial review 13 thereof.” 5 U.S.C. § 702; see also Cetacean Cmty., 386 F.3d at 1176-77 (“[T]he end 14 result is the same whether the underlying statute grants standing directly or whether the 15 APA provides the gloss that grants standing. In both cases, the plaintiff can bring suit to 16 challenge the administrative action in question. In the first case, the substantive statute 17 grants statutory standing directly to the plaintiff. In the second case, the substantive 18 statute is enforced through Section 10(a) of the APA.”); Hernandez-Avalos v. I.N.S., 50 19 F.3d 842, 846 (10th Cir. 1995) (“[A] plaintiff who lacks a private right of action under 20 the underlying statute can bring suit under the APA to enforce the statute.”). The court 21 has already determined that Plaintiffs in both cases fall within the zone of interest 22 protected by the Refugee Act of 1980 and the INA. See supra § III.A.2. Because 5 ORDER - 47 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page48 127 ofof 65173 1 U.S.C. § 702 applies, Plaintiffs in both the Doe Case and the JFS Case can bring their 2 INA statutory challenges under the APA. Under 5 U.S.C. § 706(2)(C), a “reviewing 3 court shall . . . hold unlawful and set aside agency action . . . found to be . . . in excess of 4 statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. 5 § 706(2)(C); see also Texas, 809 F.3d at 178. The court will address whether Plaintiffs 6 have demonstrated that they are likely to succeed on each claim. 7 8 9 a. FTJ Provisions Doe Plaintiffs argue that the suspension of processing FTJ refugee applications and the indefinite bar on their entry into the United States violates the INA. (See Doe PI 10 Mot. at 9-12.) Specifically, Plaintiffs argue that the award of FTJ refugee status in 8 11 U.S.C. § 1157(c)(2)(A) is not up to the Secretary’s discretion. Instead, this section of the 12 INA contains indisputably mandatory language: 13 14 15 16 17 18 19 A spouse or child . . . of any refugee who qualifies for admission under paragraph (1) shall, if not otherwise entitled to admission under paragraph (1) and if not a person described in the second sentence of section 1101(a)(42) of this title, be entitled to the same admission status as such refugee if accompanying, or following to join, such refugee and if the spouse or child is admissible . . . as an immigrant under this chapter. 8 U.S.C. § 1157(c)(2)(A) (emphasis added). Doe Plaintiffs contrast the use of the word “shall” with permissive language Congress utilized in the same section concerning principal refugees, which states in pertinent part that the Secretary “may, in the [Secretary’s] discretion . . . admit any refugee.” 8 U.S.C. § 1157(c)(1).23 The Supreme 20 21 22 23 The statute refers to the “Attorney General,” but the statutory references to the Attorney General in this provision are now deemed to refer to the Secretary of DHS. 6 U.S.C. § 557; see Durable Mfg. Co. v. U.S. Dep’t of Labor, 548 F.3d 497, 499 n.1 (7th Cir. 2009) ORDER - 48 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page49 128 ofof 65173 1 Court has observed that Congress’s use of “may” contrasts with its use of “a mandatory 2 ‘shall’ in the very same section” and has interpreted Congress’s use of “shall” under such 3 circumstances “to impose discretionless obligations.” Lopez v. Davis, 531 U.S. 230, 241 4 (2001). Plaintiffs assert that the remaining language Congress used in Section 5 1157(c)(2)(A)—that FTJ refugees are “entitled to the same admission status” as the 6 principal refugee—only reinforces Congress’s intent to abrogate the agency’s discretion 7 in this instance. (Doe PI Mot. at 11.) The court agrees. 8 9 Defendants argue that 8 U.S.C. § 1157(c)(2)(A) does not guarantee admission into the United States because FTJ refugees must still be found to be otherwise admissible 10 under the chapter. (Doe Resp. at 12-13.) Indeed, Defendants argue that 8 U.S.C. 11 § 1157(c)(2)(A) conditions FTJ refugee status on admissibility, which is not ultimately 12 adjudicated until an individual appears at a port to seek entry to the United States. (Id. at 13 13 (citing 8 U.S.C. § 1201(h) (“Nothing in this chapter shall be construed to entitle any 14 alien, to whom a visa or other documentation has been issued, to be admitted [to] the 15 United States, if, upon arrival at a port of entry in the United States, he [or she] is found 16 to be inadmissible under this chapter, or any other provision of law.”) and 8 C.F.R. 17 207.7(d) (explaining that approval of an I-730 Petition for a FTJ refugee can be 18 “revoked” prior to entry)).) However, in Spencer, the Ninth Circuit held that the word 19 “shall” in 8 U.S.C. § 1153(b)(5) indicated a nondiscretionary statutory duty to grant a 20 21 22 (“Under 6 U.S.C. § 557, references in federal law to any agency or officer whose functions have been transferred to DHS shall be deemed to refer to the Secretary of DHS or other official or component to which the functions were transferred.”). ORDER - 49 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page50 129 ofof 65173 1 type of visa under the immigrant investor program. 345 F.3d at 691. Further, the 2 application of statutory eligibility requirements did not render the agency’s determination 3 a discretionary one. Id. Accordingly, the court rejects Defendants’ argument. 4 Defendants also respond that Plaintiffs’ argument lacks merit because the Agency 5 Memo does not “rescind” anything, but only suspends the admission of FTJ refugees 6 until such time as security or screening procedures are reinforced. (JFS Resp. at 12.) 7 However, Defendants cite no authority for the proposition that the Secretary can 8 indefinitely suspend a nondiscretionary statutory duty, and so the court rejects this 9 argument, too. 10 Further, Defendants mischaracterize Plaintiffs’ claim as “seeking to compel their 11 immediate admission” or “suggest[ing] . . . that [8 U.S.C. §] 1157(c)(2)(A) requires their 12 admission now.” (Doe Resp. at 13-14.) As noted above, Plaintiffs do not claim that they 13 or their family members are entitled to immediate admission into the United States; 14 rather, Plaintiffs claim that Defendants are not entitled to, and do not have the statutory 15 authority to, indefinitely suspend FTJ refugee processing at will. By using mandatory 16 language in 8 U.S.C. § 1157(c)(2)(A), Congress created an entitlement for spouses and 17 children of principal refugees to “the same refugee status” as the principal refugee— 18 assuming the spouse and children are otherwise admissible. Nothing in the statute 19 authorizes the Secretary to stop, terminate, or suspend the ability of otherwise qualified 20 applicants from seeking and obtaining that entitlement. 21 22 Based on the foregoing authorities and analysis, the court concludes that Plaintiffs have demonstrated that they are likely to succeed on the merits of their claim that the ORDER - 50 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page51 130 ofof 65173 1 Agency Memo’s FTJ provisions of the Agency Memo at issue here violate 8 U.S.C. 2 § 1157(c)(2)(A) of the INA and, therefore, also violate 5 U.S.C. § 706(2)(C) of the APA. 3 b. SAO Provisions 4 JFS Plaintiffs argue that the 90-day suspension of processing for refugees 5 applications (with limited exceptions) from SAO countries and the bar to entry into the 6 United States violates the INA. (See JFS PI Mot. at 19, 21-22.) Despite suspending over 7 40 percent of all refugees currently admitted under USRAP,24 the Agency Memo itself 8 provides no statutory basis for the 90-day SAO suspension. (See Agency Memo at 2.) In 9 their briefing and argument to the court, Defendants point to two INA provisions as 10 underpinning the suspension—6 U.S.C. § 202(4) and 8 U.S.C. § 1157(c)(1).25 (See JFS 11 Resp. at 16.) The court addresses each of these statutory grounds and finds neither to 12 confer the necessary authority. See La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 13 (1986) (“[A]n agency literally has no power to act . . . unless and until Congress confers 14 power upon it.”). 15 Section 202(4) of Title 6 states that the Secretary of DHS is responsible for 16 “[e]stablishing and administering rules . . . governing the granting of visas or other forms 17 of permission, including parole, to enter the United States to individuals who are not a 18 citizen or an alien lawfully admitted for permanent residence in the United States.” (JFS 19 Resp. at 16 (quoting 6 U.S.C. § 202(4)).) Without citation to legal authority, Defendants 20 21 22 24 (See Smith Decl. ¶ 15 (“Out of the 138,710 refugees resettled in the United States in Fiscal Years 2016 and 2017, 60,309, or 43.5%, were from one of the 11 SAO countries.”).) 25 Defendants rely on no other statutory grounds for the SAO provisions in the Agency Memo. (See JFS Resp. at 16-17.) ORDER - 51 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page52 131 ofof 65173 1 assert that the authority granted in 6 U.S.C. § 202(4) over entry into the United States 2 “necessarily encompasses authority to restrict entry.” (JFS Resp. at 16.) They assert that 3 this is all that the SAO provisions do—restrict entry for all refugees from SAO countries. 4 Defendants also rely on 8 U.S.C. § 1157(c)(1), which states: 5 7 [The Secretary] may, in the [Secretary’s] discretion and pursuant to such regulations as the [Secretary] may prescribe, admit any refugee who is not firmly resettled in any foreign country, is determined to be of special humanitarian concern to the United States, and is admissible . . . as an immigrant under this chapter. 8 8 U.S.C. § 1157(c).26 Defendants argue that the permissive language in this section 9 invests the Secretary with the discretion to admit any refugee and thus implicitly also 6 10 confers the discretion to exclude any refugee without time limitation. 11 But taking Defendants’ position to its logical end, the court would be required to 12 conclude that these two statutory provisions provide the Secretary with the authority to 13 exclude all refugees, and indeed—in the case of 6 U.S.C. § 202(4)—all immigrants from 14 admission to the country. When the court asked in oral argument for Defendants to 15 provide some limiting principle that would avoid this result, they could not. This cannot 16 be what Congress intended when it drafted these two provisions. 17 Congress’s stated purpose in passing the Refugee Act of 1980 was as follows: 18 The objectives of this Act are to provide a permanent and systematic procedure for the admission to this country of refugees of special humanitarian concern to the United States and to provide comprehensive and uniform provisions for the effective resettlement and absorption of those refugees who are admitted. 19 20 21 22 26 See supra note 21. ORDER - 52 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page53 132 ofof 65173 1 Refugee Act of 1980, Pub. L. No. 96-212 § 101(b), 94 Stat. 102. Defendants’ 2 interpretation of 6 U.S.C. § 202(4) and 8 U.S.C. § 1157(c) is untenable in light of this 3 stated purpose. Defendants’ interpretation would allow either provision to swallow 4 whole the remainder of the Refugee Act of 1980. See Abourezk v. Reagan, 785 F.2d 5 1043, 1057-58 (D.C. Cir. 1986), aff'd, 484 U.S. 1 (1987) (finding “persuasive” the 6 plaintiff’s argument that the government’s statutory interpretation violated provisions of 7 the INA “because it effectively swallow[ed] up” another provision, thereby “nullif[ying] 8 the contours of existing inadmissibility grounds and “evad[ing] the limitations of 9 Congress”). 10 Although it involved different INA provisions, the Fifth Circuit recently dealt with 11 a similar overreach of statutory interpretation by the Government. In Texas, several 12 states challenged the DHS Secretary’s creation of the “Deferred Action for Parents of 13 Americans and Lawful Permanent Residents” (“DAPA”) program. 809 F.3d at 146. In 14 striking down DAPA as “an unreasonable interpretation that is ‘manifestly contrary’ to 15 the INA,” the Fifth Circuit held that the Government’s “interpretation of [the INA] 16 statutory provisions that the Secretary advance[d, which] would allow him to grant lawful 17 presence and work authorization to any illegal alien in the United States,” was “an 18 untenable position in light of the INA’s intricate system of immigration classifications 19 and employment eligibility.” 809 F.3d at 184. Likewise, Defendants’ broad 20 interpretation of both 6 U.S.C. § 202(4) and 8 U.S.C. § 1157(c)(1), which they argue 21 allows them to exclude all refugees of certain national origins, and by extension would 22 allow them to exclude all refugees, is untenable because it allows the DHS Secretary to ORDER - 53 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page54 133 ofof 65173 1 simply ignore the “permanent and systematic procedure” for refugee admission and 2 resettlement that Congress established in the Refugee Act of 1980. See Refugee Act of 3 1980, Pub. L. No. 96-212 § 101, 94 Stat. 102; see also Hawaii III, 2017 WL 6547095, at 4 *11-13 (concluding that EO-3 “conflicts with the statutory framework of the INA by 5 indefinitely nullifying Congress’s considered judgments on matters of immigration”). 6 Plaintiffs also argue that the SAO provisions conflict with the INA and Refugee 7 Act of 1980 in additional ways. First, Plaintiffs assert that the SAO provisions run 8 roughshod over the Refugee Act’s definition of “refugee.” (JFS PI Mot. at 21.) In 8 9 U.S.C. § 1101(a)(42), Congress set forth the specific statutory elements that individuals 10 must satisfy to be admitted as a refugee.27 Id. Congress also specified criteria as to who 11 would be excluded from the definition. Id. By either prohibiting refugees from SAO 12 countries from participating in USRAP or by grafting on the additional requirement that 13 refugees from SAO countries must also “fulfill critical foreign policy interests” to 14 qualify, the agencies impermissibly redefine the term “refugee.” They either add to the 15 16 17 18 19 20 21 22 27 In defining a refugee, Congress set forth specific criteria including that (1) the person must be outside his or her country of nationality or outside any country in which he or she last habitually resided, (2) the person must be unable or unwilling to return to, or unable or unwilling to avail himself or herself of the protection of, that country, (3) this inability or unwillingness must be due to persecution or a well-founded fear of persecution, and (4) the persecution must be on account of race, religion, nationality, membership in a particular social group, or political opinion. Id. In addition, Congress has specified that a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or been persecuted for their refusal to do these things or for other resistance to a coercive population control program, is deemed to have met some of the qualifications for refugee status listed above. Id. Finally, Congress specified criteria that would exclude a person from refugee status. Specifically, the term “does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. ORDER - 54 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page55 134 ofof 65173 1 criteria that Congress delineates to exclude one from refugee status or add an element to 2 Congress’s carefully-crafted definition. Either way, the Agency Memo impermissibly 3 conflicts with this provision. 4 Second, the nation-based SAO suspension impermissibly alters the admissibility 5 standards set by Congress in 8 U.S.C. § 1182(a). An individual refugee may enter the 6 country only if she is not subject to one of the inadmissibility bars. See 8 U.S.C. 7 § 1157(c)(1) (“[The Secretary] may . . . admit any refugee who . . . is admissible . . . as 8 an immigrant under this chapter.”). Section 1182(a) contains a long list of detailed 9 inadmissibility bars, including on “criminal,” “security,” “terrorist,” and “foreign 10 policy” grounds. See 8 U.S.C. § 1182. The INA “emphatically did not commit the 11 decision to exclude an alien to standardless agency discretion; the statute lists 12 [numerous] distinctly delineated categories that conspicuously provide standards to 13 guide the Executive in its exercise of exclusion power.” Abourezk, 785 F.2d at 1051. 14 Defendants cannot alter the contours of admissibility as sculpted by Congress or evade 15 these congressional limitations by creating a new and separate inadmissibility ground 16 that does not exist in the INA.28 17 28 18 19 20 21 22 Defendants’ observation that the “Government routinely grants preferences on the basis of nationality” under the Refugee Act (JFS Resp. at 17 (italics in original)) supports rather than undermines Plaintiffs. Such preferences are granted either pursuant to a Presidential determination required by the Refugee Act, 8 U.S.C. § 1157(a)(3) (requiring the President to allocate refugee admissions after appropriate consultation with Congress), as is the case with the Priority 2 designations—including the Central American Minors program—and Priority 3 designations, see U.S. Dep’t of State, Proposed Refugee Admissions for FY 2018, at 7 (Oct. 4, 2017) (report to Congress), (noting that section 207(a)(3) of the INA grants authority to determine the USRAP priority system), or pursuant to a duly issued regulation that permits the Secretary to prioritize certain refugee admissions based on appropriate criteria, including “reuniting families, close association with the United States, compelling humanitarian concerns, and public ORDER - 55 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page56 135 ofof 65173 1 Based on the foregoing authorities and analysis, the court concludes that Plaintiffs 2 have demonstrated that they are likely to succeed on the merits of their claim that the 3 Agency Memo’s SAO provisions at issue here violate the INA and, therefore, also 5 4 U.S.C. § 706(2)(C) of the APA.29 5 4. Irreparable Harm 6 To qualify for a preliminary injunction, Plaintiffs must show that they are “likely 7 to suffer irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20. 8 The individual Plaintiffs argue that the suspensions in the Agency Memo will prolong the 9 separation of their family members and that this is an irreparable harm. They are correct. 10 This Circuit has repeatedly found that “separation from family members” is an 11 irreparable harm. Leiva-Perez v. Holder, 640 F.3d 962, 969-70 (9th Cir. 2011) (quoting 12 Andreiu v. Ashcroft, 253 F.3d 477, 484 (9th Cir. 2001) (en banc). The related Executive 13 Order litigation has reaffirmed this holding. See Hawaii I, 859 F.3d at 782-83 14 (“prolonged separation from family members” is irreparable harm); Washington, 847 15 F.3d at 1169 (identifying “separated families” as an irreparable harm); see also Int’l 16 Refugee Assistance Project, 857 F.3d at 583-84. 17 18 Defendants respond that the Agency Memo “would at most delay the entry of Plaintiff’s family members.” (Doe Resp. at 21; JFS Resp. at 30-31.) According to 19 20 21 22 interest factors,” 8 C.F.R. § 207.5 (2017). Although section 207.5 may permit the agency to preference certain admissions based on these criteria, this authority—on which Defendants did not base their actions—does not encompass the categorical suspension at issue here. 29 Because the court concludes that Plaintiffs are likely to succeed on two of their statutory claims, it does not consider Plaintiffs’ third statutory claim or Plaintiffs’ constitutional claims. ORDER - 56 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page57 136 ofof 65173 1 Defendants, “[s]uch delay alone does not amount to irreparable harm, as processing times 2 for refugees can vary widely and on average are quite lengthy.” (Id.) Defendants do not 3 distinguish delayed unification from prolonged separation, nor do they cite any authority 4 that delay is not irreparable harm. (See Doe Resp.; JFS Resp.) Further, the Ninth Circuit 5 has at least implicitly rejected the notion that delay is not irreparable harm. See Hawaii I, 6 859 F.3d at 768 (holding that the plaintiffs “will face substantial hardship if we were to 7 first require that they try to obtain a waiver before we will consider their case”). No 8 matter which synonym one uses, the court finds that the Agency Memo causes irreparable 9 harm to individual Plaintiffs whose separation from their family members is prolonged. 10 The organizational Plaintiffs also suffer irreparable harm from the Agency Memo. 11 JFS-S and JFS-SV have dedicated significant resources to helping refugees from the SAO 12 countries. (JFS PI Mot. at 12-13.) Due to the Agency Memo’s suspension of refugees, 13 the organizations claim that they will need to lay-off employees, reduce services, cancel 14 established programs, lose institutional knowledge, and ultimately lose goodwill with 15 volunteers and community partners. (See id.) “Evidence of threatened loss of . . . 16 goodwill certainly supports a finding of the possibility of irreparable harm.” Stuhlberg 17 Int’l Sales Co., Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 841 (9th Cir. 2001); see 18 also Rent-A-Ctr. v. Canyon Television & Appliance Rental, Inc., 944 F.2d 597, 603 (9th 19 Cir. 1991). 20 Defendants recycle their “delay” argument to claim that the organizations have not 21 suffered irreparable harm. (See JFS Resp. at 30-31.) This argument is similarly 22 unavailing here. Moreover, the indefinite duration of the “delay” in admitting refugees ORDER - 57 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page58 137 ofof 65173 1 leaves the organizations unable to operate or plan effectively, further deteriorating 2 goodwill and adding to their harms. Defendants also argue that the organizations are not 3 irreparably harmed because “these organizations already fulfill their missions by 4 representing such clients who are unaffected by the challenged provisions.” (Id. at 12.) 5 The evidence before the court, however, is that JFS-S and JFS-SV are not able to simply 6 shift resources to “unaffected” refugees. Rather, these organizations have built programs 7 specifically to serve Muslim and Arabic-speaking refugees. (JFS-S Supp. Decl. ¶¶ 6-7; 8 JFS-SV Supp. Decl. ¶ 4.) Throughout the time it will take JFS-S and JFS-SV to 9 adequately build programs to service other populations, the organizations will suffer 10 irreparable harm. See Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718, 11 739 (S.D. Ind. 2016), aff’d, 838 F.3d 902 (7th Cir. 2016) (“Although the funding denied 12 to [the agency] could be reimbursed, [the agency] has presented evidence that, in the 13 interim, its organizational objectives would be irreparably damaged by its inability to 14 provide adequate social services to its clients.”); see also Hawaii I, 859 F.3d at 782-83 15 (finding the “State’s inability to assist in refugee resettlement” was an irreparable harm). 16 Further, as explained above, any sudden shift in the organizations’ priorities will threaten 17 their relationships and goodwill with community partners. In short, the Agency Memo 18 threatens the organizational Plaintiffs’ mission, services, and goodwill, and therefore 19 causes them irreparable harm. 20 Based on the foregoing, the court concludes that Plaintiffs are likely to suffer 21 irreparable harm in the absence of preliminary relief. 22 // ORDER - 58 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page59 138 ofof 65173 1 5. Public Interest and Balancing the Equities 2 The balancing of the equities and the public interest inquiries are distinct. See 3 Winter, 555 U.S. at 20. In weighing equities, a court “must balance the competing claims 4 of injury and must consider the effect on each party of the granting or withholding of the 5 requested relief.” Id. at 24 (internal citation omitted). Conversely, when determining the 6 public interest, a court “primarily addresses impact on non-parties rather than parties.” 7 League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 8 F.3d 755, 766 (9th Cir. 2014). That said, “[t]hese factors may merge where the 9 Government is a party” because the Government purports to be acting in the public 10 interest. See Colo. River Indian Tribes v. Dep’t of Interior, No. ED CV14-02504 JAK 11 (SPx), 2015 WL 12661945, at *34 (C.D. Cal. June 11, 2015); see also Hawaii, 241 F. 12 Supp. 3d at 1139-40 (combining the balance of equities and public interest analyses). 13 Here, the Defendant’s sole argument for the balancing of equities and public interest 14 factors is the Government’s weighty interest in national security. (See Doe Resp. at 24; 15 JFS Resp. at 28.) The court, therefore, considers these factors together. 16 The court agrees that the Government has a “compelling” interest in national 17 security. Haig v. Agee, 453 U.S. 280, 307 (1981); see also Hawaii I, 859 F.3d at 78 18 (“National security is undoubtedly a paramount public interest.”). Defendants, however, 19 do not point to any specific national security threat that the Agency Memo curtails. At 20 most, the Agency Memo expresses general “concerns” with admitting FTJ refugees and 21 refugees from SAO countries. (See Agency Memo at 2-3.) Further, Defendants have not 22 put forth evidence of how a preliminary injunction might cause specific injury or harm in ORDER - 59 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page60 139 ofof 65173 1 this instance or how the recent preliminary injunction of EO-1’s or EO-2’s suspensions of 2 all or portions of USRAP caused any harm or injury. (See generally Dkt.) 3 On the other hand, former national security officials—many of whom held “the 4 most senior responsibility within the U.S. Government for overseeing the refugee 5 resettlement process”—expressed that they are “unaware of any national security threat 6 that would justify” the Agency Memo. (Joint Decl. Former Nat’l Sec. Officers ¶¶ 4, 7.) 7 In fact, the former officials detailed concretely how the Agency Memo will harm the 8 United States’ national security and foreign policy interests. (Id. at ¶¶ 14-15.) Enjoining 9 portions of the Agency Memo will simply restore refuge procedures and programs to the 10 position they were in prior to its issuance, which already includes “the most thorough 11 vetting of any travelers to the United States. (Id. ¶ 8); see Hawaii I, 859 F.3d at 783 12 (noting this same effect of enjoining portions of EO-2). 13 In any event, national security, although undoubtedly “a paramount public 14 interest,” see Hawaii I, 859 F.3d at 784, does not always override all other public 15 interests, see IRAP, 137 S. Ct. at 2088-89. Moreover, the agencies must exercise national 16 security authority lawfully. “[C]urtailing unlawful executive action” also serves the 17 public interest. Texas, 809 F.3d at 187; see also Hawaii I, 859 F.3d at 784. Further, 18 suspending the FTJ refugees program and the processing of refugee applications (with 19 limited exceptions) from SAO countries hinders Plaintiffs’ ability to reunite with their 20 families while increasing refugees’ exposure to perilous circumstances abroad, and its 21 also disrupts and hinders JFS-S’s and JFS-SV’s ability to resettle and serve refugees. See 22 supra § II.B. Thus, “[t]he public interest in uniting families and supporting humanitarian ORDER - 60 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page61 140 ofof 65173 1 efforts in refugee resettlement support the conclusion that the public interest is served by 2 preliminarily enjoining [portions of the agency Memo] and maintaining the status quo.” 3 See Hawaii I, 859 F.3d at 784 (citing Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1094 4 (9th Cir. 2005) (“Public policy supports recognition and maintenance of a family unit. 5 The [INA] was intended to keep families together. It should be construed in favor of 6 family units and the acceptance of responsibility by family members.”)). Further, the 7 INA should be construed in accordance with its “humane purpose . . . to reunite 8 families.” Kaliski v. Dist. Dir. of Immigration & Naturalization Serv., 620 F.2d 214, 217 9 (9th Cir. 1980). In Hawaii I, the Ninth Circuit concluded that, because a preliminary 10 injunction of EO-2 would serve the foregoing interests, it was in the public interest. 859 11 F.3d at 784-85. Likewise, this court concludes that Plaintiffs have demonstrated that a 12 preliminary injunction of the FTJ and SAO suspensions here is in the public interest. 13 Nevertheless, the court’s analysis would not be complete without considering the 14 Supreme Court’s recent decision in IRAP, 137 S. Ct. 2080, and the court will tailor any 15 preliminary injunction it issues to the confines of that ruling.30 When evaluating whether 16 30 17 18 19 20 21 22 The court recognizes that the Supreme Court recently stayed two preliminary injunctions relating to EO-3, pending appeals in the Fourth Circuit and Ninth Circuit, respectively. See Trump v. Int’l Refugee Assistance Project, No. 17A560, 2017 WL 5987435, at *1 (U.S. Dec. 4, 2017); Trump v. Hawaii, No. 17A550, 2017 WL 5987406, at *1 (U.S. Dec. 4, 2017). The Court’s rulings, however, do not provide any analysis or explanation why it stayed the injunctions. On December 5, 2017, this court ordered the parties “to provide supplemental briefing concerning what impact, if any, the Supreme Court’s December 4, 2017, orders have concerning the two pending motions for preliminary injunction.” (Supp. Br. Order (Dkt. # 68) at 2; see also Doe Supp. Brief; JFS Supp. Brief; Def. Supp. Brief.) After considering the parties’ supplemental briefs and the Supreme Court’s December 4, 2017, rulings, this court will still rely on IRAP, 137 S. Ct. 2080 (2017), the only reasoned opinion from the Supreme Court on a related matter to date. Nothing in the December 4, 2017, rulings expressly undermines, let alone mentions, IRAP. Moreover, the December 4, 2017, rulings dealt exclusively with immigrants— ORDER - 61 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page62 141 ofof 65173 1 to issue a stay of the EO-2 preliminary injunctions, the Supreme Court determined that 2 the balance of equities favored “foreign nationals who have a credible claim of a bona 3 fide relationship with a person or entity in the United States.” Id. at 2088. The Court 4 recognized that the Government’s interest in protecting national security was at its apex 5 when considering the admission of foreign nationals with no connection to the United 6 States. Id. However, the Supreme Court found that the balance of equities was different 7 when considering the admission of aliens who had a credible claim of a bona fide 8 relationship with a person or entity within the United States. Id. With respect to these 9 individuals, the Supreme Court upheld the lower courts’ injunctions against enforcement 10 of EO-2. Id. The Court also specifically extended this balancing of equities to refugees: 11 “[a]n American individual or entity that has a bona fide relationship with a particular 12 person seeking to enter the country as a refugee can legitimately claim concrete hardship 13 if that person is excluded.” Id. at 2089. 14 By statutory definition, as Defendants conceded at oral argument, all FTJ refugees 15 have a bona fide relationship with a person in the United States. See 18 U.S.C. § 1157(c). 16 Thus, a preliminary injunction will be applicable to all FTJ refugees. The same, 17 however, is not true for all refugees from SAO countries. These refugees are not 18 necessarily in a relationship with a United States person or organization. The IRAP Court 19 held that for “refugees who lack any such connection to the United States . . . the balance 20 21 22 not refugees or the INA provisions currently at issue. It is simply impossible to say how the Court considered the equities in the December 4, 2017, rulings, and whether the Court’s analysis applies here. ORDER - 62 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page63 142 ofof 65173 1 tips in favor of the Government’s compelling need to provide for the Nation’s security.” 2 137 S. Ct. at 2089. Thus, any preliminary injunction concerning refugees from SAO 3 countries will apply only to individuals with a bona fide relationship to a person or entity 4 within the United States.31 See id. 5 For the reasons stated above and with the noted limitations based on the Supreme 6 Court’s decision in IRAP, the court finds that the balance of equities and the public 7 interest factors weigh in favor of enjoining the FTJ and SAO provisions in the Agency 8 Memo at issue here. 9 10 6. Scope of the Injunction Defendants argue that any preliminary injunction should apply to the individual 11 Plaintiffs in this action only. (Doe Resp. at 22-23; JFS Resp. at 28-29.) An injunction is 12 not necessarily overbroad by extending benefits or protection to persons other than the 13 prevailing parties—even in the absence of a certified class—if such breadth is necessary 14 to give the prevailing parties the relief to which they are entitled. Hawaii I, 859 F.3d at 15 788. “Narrowing the injunction to apply to only Plaintiffs would not cure the statutory 16 violation identified, which in all applications would violate provisions of the INA.” Id. 17 In addition, partial implementation of the challenged provisions in the Agency Memo 18 19 20 21 22 31 With respect to a “bona fide relationship” with an American organization, the Supreme Court held that for such a relationship to exist, it “must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the Executive Order at issue].” See IRAP, 137 S. Ct. at 2088. The Ninth Circuit has interpreted this language to include refugee applicants covered by a formal assurance from a refugee resettlement agency. See Hawaii II, 871 F.3d at 658. Thus, those refugees from SAO countries who have a formal assurance from JFS-S, JFS-SV, or some other refugee resettlement agency or humanitarian organization, would be covered by the preliminary injunction. ORDER - 63 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page64 143 ofof 65173 1 would undermine uniform enforcement of the nation’s immigration laws. See Texas, 809 2 F.3d at 155 (issuing nationwide injunction concerning the DAPA program because 3 “partial implementation of the Executive Order ‘would undermine the constitutional 4 imperative of ‘a uniform Rule of Naturalization’ and Congress’s instruction that ‘the 5 immigration laws of the United States should be enforced vigorously and uniformly’”) 6 (footnotes omitted) (quoting U.S. CONST, art. I, § 8, cl. 4 and Immigration and Reform 7 Control Act of 1986, Pub. L. No. 99-603, § 115(1), 100 Stat. 3359, 3384); see also 8 Hawaii III, 2017 WL 6547095, at *25 (holding that the “the district court did not abuse 9 its discretion by granting a nationwide injunction” with respect to EO-3). Accordingly, the court issues a nationwide preliminary injunction32 as follows: 10 11 1. 12 members and persons acting in concert or participation with them from the date of this 13 Order, are enjoined and restrained from enforcing those provisions of the Agency Memo 14 that suspend the processing of FTJ refugee applications or suspend the admission of FTJ 15 refugees into the United States. This portion of the preliminary injunction does not apply 16 to Defendants’ efforts to implement “additional security measures” or align “the 17 screening mechanisms for [FTJ] refugees” with “processes employed for principal 18 refugees” as described in the Agency Memo. 19 // 20 21 22 Defendants and their officers, agents, servants, employees, attorneys, and all 32 The preliminary injunction does not apply to the President. See Hawaii I, 859 F.3d at 788 (holding that the court lacked jurisdiction to enjoin the President). However, the preliminary injunction runs against all other Defendants. See id. (“Injunctive relief . . . may run against all other executive officials, including the Secretary of Homeland Security and the Secretary of State.”). ORDER - 64 Case Case 1:17-cv-00255-TSC 2:17-cv-00178-JLRDocument Document 135-1 92 Filed Filed12/23/17 01/03/18 Page Page65 144 ofof 65173 1 2. 2 members and persons acting in concert or participation with them from the date of this 3 Order, are enjoined and restrained from enforcing those provisions of the Agency Memo 4 that suspend or inhibit, including through the diversion of resources, the processing of 5 refugee applications or the admission into the United States of refugees from SAO 6 countries. However, this portion of the preliminary injunction only applies to FTJ 7 refugees or other refugees with a bona fide relationship to a person or entity within the 8 United States. See IRAP, 137 S. Ct. at 2088 89. Further, this portion of the preliminary 9 injunction does not apply to Defendants’ efforts to conduct a detailed threat assessment 10 Defendants and their officers, agents, servants, employees, attorneys, and all for each SAO country. 11 12 IV. CONCLUSION Based on the foregoing analysis, the court GRANTS Plaintiffs’ motion in the Doe 13 Case (Dkt. # 45), and GRANTS Plaintiffs’ motion in the JFS Case (17-1707 Dkt. # 42) 14 except for those refugees who lack a bona fide relationship with a person or entity in the 15 United States. 16 Dated this 23rd day of December, 2017. 17 A 18 JAMES L. ROBART United States District Judge 19 20 21 22 ORDER - 65 EXHIBIT 3 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 146 of 173 CATO AT LIBERTY LIBERTY DECEMBER12, DECEMBER 12,2017 20176:10PM 6:10PM Muslim Ban? Fewer Muslim Refugees, Immigrants, and Travelers Enter U.S. in 2017 DAVID BIER By DAVID During his During hiscampaign, campaign, President President TrumpTrump promised promised to ban allto Muslims ban alloutright Muslims outright until he until hecould could figure figure out out "what "what is going is going on." Heon." laterHe explained later explained that this idea that this idea had developed had developed intointo several several policies policies that would thathave would the have same effect. the same Sinceeffect. his Since his inauguration, Trump inauguration, Trump has has begun begun to implement to implement them—they them—they include slashing include theslashing the refugee program, refugee program, Muslim countries, Muslim countries, andand all immigration all immigration and and travelers travelers from from severalseveral majoritymajority new burdens new burdens on on all visa all visa applicants applicants as part as of part of "extreme vetting" "extreme vetting" initiatives. initiatives. So far, Sothese far, policies these policies appear to appear have "worked," to have "worked," strongly reducing strongly reducing Muslim Muslim immigration immigration and travel andtotravel the United to the States. United States. Muslim refugee Muslim refugee admissions admissions have have fallen fallen dramatically dramatically over the past overyear. the past year. According toto According figures figures fromfrom the State the State Department, Department, Muslim refugee Muslimflows refugee fell 94 flows fell 94 percent from percent from January January to November to November 2017 (the 2017 last(the full last month full of month availableofdata). available data). In calendar calendar 2016, 2016, thethe United United States States admitted admitted almost 45,000 almostMuslim 45,000refugees, Muslim refugees, compared to to compared a little a little more more than than 11,00011,000 in 2017—fully in 2017—fully half of those half of entered those in entered in January and January and February. February. Of course, Of course, the administration the administration has cut refugee has cut flows refugee flows generally, but generally, but thethe Muslim Muslim shareshare of all of refugees all refugees has dropped hassubstantially dropped substantially too— too— from 50 from 50percent percent in January in January to less tothan less10than percent 10 in percent November. in November. Case1 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 147 of 173 Figure Monthly Muslim Refugee Admissions for Each Month of 2017 and Average for 2016 60% 3.700 3,500 3,266 50% 3,000 40% KI a2,500 2,255 i ix 2,000 3 1 5Gri 938 1,0 ' 60 1,129 1,119 86,8 5C. 220 542 0 1.0 295 MuslimS Share hare of All All Refugees Refugees 4,000 10% 185 I I I I 1 • 4 111 1 I . A „,:ii ,..:1 ,„) .,„;), tcl ..,„,,, , ...'' ' ' 40 23: — 0% .,,,,* + 4., \ Mu Jim Toad (left) —Muslim Share (right) Source: U.S. Source: U.S. Department DepartmentofofState State*Monthly *Monthlyaverage, average,**Through **Through December December 11,11, 2017 This year's drop is even more substantial when compared with the trend. In only one year over the last decade has the number of Muslim refugee admissions fallen, and Muslim admissions have increased on average 18 percent annually from 2007 to 2016. As for foreign travelers and immigrants seeking to live permanently in the United States, the State Department does not ask on its visa application form about their religious affiliation (thankfully). But based on the number of visas issued to nationals of the nearly 50 majority Muslim countries, it certainly appears that the Trump administration policies have affected them as well. America issues two types of visas—"immigrant" for permanent residents and "nonimmigrant" for temporary residents—mainly tourists, guest workers, and students. For Muslim majority countries, the average monthly permanent visa issuances during the period of March to October 2017 (the only months that are available so far) dropped 13 percent from the monthly average in FY 2016. Case monthly 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 148 Average Average monthly visavisa issuances issuances for temporary for temporary residents—tourists, residents—tourists, guestof 173 guest workers, and workers, and students—from students—from majority majority MuslimMuslim countries countries have dropped have 21dropped 21 percent from percent from thethe FY FY 2016 2016 monthly monthly average. average. Figure 2 Average Monthly Visa Issuances—Permanent and Temporary-2016 and 2017 90,000 77,906 80,000 70,000 61,595 60,000 EU g 50,000 = 40,000 5 30,000 20,000 9,787 10,000 8,562 0 Permanent Residents • FY 2016 Temporary Residents ■ Mar-Oct 2017 Sources: U.S. Department of State, "Monthly Nonimmigrant Visa Issuance Statistics"; "Monthly Immigrant Visa Issuance Statistics"; "Nonimmigrant Visas Issued by Nationality"; "Immigrant Visas Issued" During the During thelast last decade, decade, majority majority Muslim Muslim countries countries have never—even have never—even during the during the recession—seen temporary recession—seen temporary visa issuances visa issuances fall by more fallthan by more 1 percent than in 1 a percent in a single year single year and and immigrant immigrant visasvisas never more neverthan more 7 percent. than 7From percent. 2007 From to 2016, 2007 to 2016, temporary visa temporary visa approvals approvals for nationals for nationals of theseof countries these countries actually grew actually 8 percent annually percent annually andand permanent permanent visas 9visas percent 9 annually. percent annually. Again, compared Again, tocompared to the expected the expected increases, increases, the declines the declines are evenare more even remarkable. more remarkable. Immigration and Immigration and travel travel fromfrom all countries all countries has alsohas declined also this declined year, but this theyear, but the declines forfor declines Muslim Muslim majority majority countries countries were larger. were They larger. sawThey their saw share their of all share of all immigrant visa immigrant visa issuances issuances fall 3 fall percent 3 percent and theirand share their of temporary share of visa temporary visa approvals byby approvals 15 15 percent. percent. Document 135-1 certain Filed 01/03/18 Page 149 of 173 TheCase visa 1:17-cv-00255-TSC declines disproportionately affected countries. In particular, they impacted the eight majority Muslim countries that President Trump has singled out in his three "travel ban" executive orders—Chad, Iran, Iraq, Libya, Syria, Somalia, Sudan, and Yemen. (Iraq and Sudan are technically now off the list, though Iraqis are supposedly subject to higher scrutiny. Chad was added in September.) All eight countries received fewer visa approvals, and collectively, their monthly average immigrant visa issuances fell a collective 36 percent, while temporary visas fell 42 percent. These declines occurred despite court orders that barred full implementation of the ban until this month. Figure 3 Average Monthly Visa Issuances—Permanent and Temporary-2016 and 2017 for Eight "Travel Ban" Countries 4,5.00 3,985 4,030 3,500 3,000 I..., Eu u c 2 500 ra ' 2,654 2,302 J 1,699 1,000 500 0 Permanent Residents Temporary Residents • FY 2016 • Mar-Oct 2017 Sources: U.S. Department of State (See Figure 2) The decline in Muslim refugee admissions is almost entirely a consequence of policy. The administration selects the number and types of refugees that it wants. President Trump promised to "prioritize" Christian refugees, and he has done so, not by increasing their numbers—the number of Christian refugees has declined as well—but by decreasing Muslim admissions. Case Document 135-1 Filed 01/03/18 Page 150 of 173 80 percent Policy Policy isis1:17-cv-00255-TSC atat least least partially partially culpable culpable for fewer for visa fewer approvals. visa approvals. Almost 80 Almost percent of the of thedrop drop in in immigrant immigrant visasvisas came came from the from eightthe targeted eightcountries, targetedbut countries, these but thes countries explain countries explain onlyonly 14 percent 14 percent of the of drop the in drop temporary in temporary visas. visas. The Trump The Trumpadministration administration has rolled has rolled out other outpolicies other designed policiesto designed target to target Muslim extremists Muslim extremists thatthat include include more more complicated complicated and lengthy andimmigration lengthy immigration forms and forms and requirements requirements to supply to supply more evidence more evidence to supportto certain support claims, certain claims, such asas such past past addresses addresses and jobs. andThese jobs.could These be increasing could be the increasing costs associated the costs associat with an with anapplication, application, forcing forcing immigrants immigrants to hire to attorneys hire attorneys or simply delaying or simply delaying their applications. their applications. Accounts Accounts of mysterious of mysterious visa denials visafor denials Muslimfor applicants Muslim applicants have serviced have serviced as well. as well. Undoubtedly, some Undoubtedly, some Muslim Muslim travelers travelers are alsoare afraid alsotoafraid travel to tothe travel United to the United States right States right now—stories now—stories of of and other and other mistreatment mistreatment at theat the border for border for Muslims Muslims could could dissuade dissuade Muslims Muslims from even from applying. even applying. Regardless,Regardless, President Trump President Trump is certainly is certainly fulfilling fulfilling a major a campaign major campaign promise: few promise: Muslims few Muslims are entering are entering thethe United United States. States. One can One only can hope only he hope will figure he will out "what figureisout "what is going on" going on" soon. soon. Topics:International Topics: International Economics, Economics, Development Development Et Immigration Et Immigration Tags:Immigration; Tags: Immigration; Refugees; Refugees; Muslims; Muslims; Trump;Trump; Executive Executive Order; Border Order; Border Thiswork This workbyby Cato Cato Institute Institute is licensed is licensed under aunder Creative a Creative CommonsCommons Attribution-NonCommercialAttribution-NonCommercialShareAlike3.0 ShareAlike 3.0 Unported Unported License. License. PRINTED FROM PRINTED FROMCATO.ORG CATO.ORG EXHIBIT 4 12/14/2017 Trump lifts refugee ban, but admissions still plummet, data shows Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 152 of 173 REUTERSvv REUTERS #TRUMP EFFECT DECEMBER8,8,2017 DECEMBER 2017/ 6:06 / 6:06 AM AM / / 5 DAYS AGO Trumplifts Trump liftsrefugee refugee ban,ban, but admissions but admissions still plummet, still plummet, data data shows shows Yeganeh Torbati Yeganeh Torbati f WASHINGTON (Reuters) WASHINGTON (Reuters) - In - In latelate October, October, President President DonaldDonald Trump lifted Trump a temporary lifted a temporary ban b on most on mostrefugee refugee admissions, admissions, a movea that move should thathave should cleared have the cleared way for more the way people forfleeing more people persecution andand persecution violence violence to come to come to the United to theStates. United States. Instead, the Instead, the number number of refugees of refugees admitted admitted to the country to thehas country plummeted. has plummeted. In the five weeks In the five we after the after theban ban waswas lifted, lifted, 40 percent 40 percent fewer people fewer were people allowed wereinallowed than in the in last than five in weeks the last it five wee https://www.reuters.com/article/us-trump-effect-refugees/trump-lifts-refugee-ban-but-admissions-still-plummet-data-shows-idUSKBN1E21CR 1/13 12/14/2017 Trump lifts refugee ban, 135-1 but admissions still 01/03/18 plummet, data shows Case 1:17-cv-00255-TSC Document Filed Page 153 of 173 was in place, according to a Reuters analysis of State Department data. That plunge has gone almost unnoticed. As he lifted the ban, Trump instituted new rules for tougher vetting of applicants and also effectively halted, at least for now, the entry of refugees from 11 countries deemed as high risk. The latter move has contributed significantly to the precipitous drop in the number of refugees being admitted. The data shows that the Trump administration's new restrictions have proven to be a far greater barrier to refugees than even his temporary ban, which was limited in scope by the Supreme Court. The State Department data shows that the kind of refugees being allowed in has also changed. A far smaller portion are Muslim. When the ban was in place they made up a quarter of all refugees. Now that it has been lifted they represent just under 10 percent. Refugee admissions dwindle under new Trump policies President Donald Trump lifted a temporary ban on refugee admissions in late October. But since then, the number of refugees coming into the United States has dropped precipitously, particularly for refugees from 11 countries targeted by a new security review. U.S. REFUGEE ADMISSION FROM ALL COUNTRIES, BY RELIGION During the five weeks before and after the refugee ban was lifted on Oct. 24. Other Muslim Christian Sept. 20 - Oct. 24 Oct. 25 -Nov. 28 500 1,000 1,500 2,000 2,500 refugees https://www.reuters.com/article/us-trump-effect-refugees/trump-lifts-refugee-ban-but-admissions-still-plummet-data-shows-idUSKBN1E21CR 2/13 12/14/2017 Trump lifts refugee ban, 135-1 but admissions still 01/03/18 plummet, data shows Case 1:17-cv-00255-TSC Document Filed Page 154 of 173 REFUGEE ADMISSIONS FROM COUNTRIES UNDER SECURITY REVIEW As it lifted the refugee ban, the Trump administration simultaneously announced it was targeting 11 countries* for an additional security review. 200 refugees 150 100 Refugee ban was lifted on Oct. 24 50 0 Sep. 26 Oct. 03 Oct. 10 Oct. 17 Oct. 24 Oct. 31 Nov. 07 Nov. 14 Nov. 21 Nov. 28 *The countries under additional review are Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria and Yemen. Source: Department of State By Travis Hartman I RFUTFRS GRAPHICS Admissions over five weeks is a limited sample from which to draw broad conclusions, and resettlement numbers often pick up later in the fiscal year, which began in October. But the sharp drop has alarmed refugee advocates. "They're pretty much shutting the refugee program down without having to say that's what they're doing," said Eric Schwartz, president of Refugees International. "They've gotten better at using bureaucratic methods and national security arguments to achieve nefarious and unjustifiable objectives." Trump administration officials say the temporary ban on refugees, and the new security procedures that followed, served to protect Americans from potential terrorist attacks. Supporters of the administration's move also argue that the refugee program needed reform and that making it more stringent will ultimately strengthen it. https://www.reuters.com/article/us-trump-effect-refugees/trump-lifts-refugee-ban-but-admissions-still-plummet-data-shows-idUSKBN1E21CR 3/13 12/14/2017 Trump lifts refugee ban, but admissions still plummet, data shows Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 155 of 173 "The program "The program needed needed to betotightened be tightened up," said up," Joshua saidMeservey, Joshua aMeservey, senior policy a senior analyst at policy the analy Heritage Foundation, Heritage Foundation, a conservative a conservative think tank, think who tank, formerly who worked formerly in refugee workedresettlement in refugee resettl in Africa. in Africa."I'm "I'mallallforfor strengthening strengthening the vetting, the vetting, crackingcracking down on the down fraud, onbeing the fraud, really being really intentional onon intentional who who we we select select for this, forbecause this, because I think it Iprotects think itthe protects programthe ultimately program when ultimately we do we dothat." that." A State StateDepartment Department official official attributed attributed the drop theindrop refugee in admissions refugee admissions to increased vetting, to increased vetti reviews aimed reviews aimed at identifying at identifying potential potential threats,threats, and a smaller and aannual smaller refugee annual quotarefugee this yearquota of this y 45,000, the 45,000, thelowest lowest level level in decades. in decades. "Refugee admissions "Refugee admissions rarelyrarely happen happen at a steady at apace steady and in pace many and years in start many outyears low and start out low an increase throughout increase throughout the year. the year. It would It would be premature be premature to assess (the to assess 2018 fiscal (theyear's) 2018pace fiscal at year's) this point," this point," thethe official official said,said, speaking speaking on condition on condition of anonymity. of anonymity. Trump has Trump has made made controlling controlling immigration immigration a centerpiece a centerpiece of his presidency, of his presidency, citing both a desire citing both a to protect to protect American American jobsjobs and national and national security.security. During the During 2016 presidential the 2016 presidential campaign he said campaign h Syrian refugees Syrian refugees could could be aligned be aligned with Islamist with Islamist militantsmilitants and promised and"extreme promised vetting" "extreme of vetting applicants. applicants. The White The WhiteHouse House diddid not not respond respond to a request to a request for comment. for comment. NEW RULES, RULES,MORE MOREINFO INFO https://www.reuters.com/article/us-trump-effect-refugees/trump-lifts-refugee-ban-but-admissions-still-plummet-data-shows-idUSKBN1E21CR 4/13 12/14/2017 Trump lifts refugee ban, but admissions still plummet, data shows Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 156 of 173 Alireza, an Iranian refugee living in Turkey, holds his passport in Istanbul, Turkey, November 15, 2017. Picture taken November 15, 2017. REUTERS/Murad Sezer After the ban was lifted the new rules imposed included a requirement that refugees provide 10 years of biographical information, rather than five years, a pause in a program that allows for family reunification, and a "detailed threat analysis and review" of refugees from 11 countries. A Department of Homeland Security spokesman said that 90-day review began on Oct. 25, the day after Trump lifted the ban. Officials have said that during the review period, refugees from Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria and Yemen will be allowed in on a case by case basis, but they have also said priority will be given to other applicants. For each of the last three years, refugees from the 11 countries made up more than 40 percent of U.S. admissions. While nine of the 11 countries are majority Muslim, it is often their religious minorities, including Christians and Jews, who seek asylum in the United States. And in practice, of the 11 countries only Iran, Iraq, Somalia, South Sudan, Sudan and Syria produce refugees who resettle in the United States in meaningful numbers. Trump administration officials have said the 90-day review does not amount to a bar on refugees from the 11 countries. But just as the review launched, the number of refugees coming from those countries ceased almost entirely. https://www.reuters.com/article/us-trump-effect-refugees/trump-lifts-refugee-ban-but-admissions-still-plummet-data-shows-idUSKBN1E21CR 5/13 12/14/2017 Trump lifts refugee ban, but admissions still plummet, data shows Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 157 of 173 Alireza, an Iranian refugee living in Turkey, reads a book at a park in central Istanbul, Turkey, November 15, 2017. Picture taken November 15, 2017. REUTERS/Murad Sezer In the five weeks before the ban was lifted, 587 refugees from the 11 countries were allowed in, despite tough eligibility rules, according to the Reuters review of the State Department data. In the five weeks after Trump lifted the ban, just 15 refugees from those countries were allowed in. From all countries, 1,469 refugees were admitted to the United States in the five weeks between Oct. 25 and Nov. 28, according to the State Department data. That was 41 percent lower than during the final five weeks of the ban, when nearly 2,500 refugees gained entry. Just 9 percent of refugees admitted to the United States between Oct. 25 and Nov. 28 were Muslim, and 63 percent were Christian. In the five weeks prior, 26 percent were Muslim and 55 percent were Christian. More refugees were allowed in during the period the temporary refugee ban was in place because the Supreme Court, in okaying the ban in June, required refugees with "bona fide" ties to the United States be exempted. The new rules have been challenged in court, but no rulings have yet been issued. https://www.reuters.com/article/us-trump-effect-refugees/trump-lifts-refugee-ban-but-admissions-still-plummet-data-shows-idUSKBN1E21CR 6/13 12/14/2017 Trump lifts refugee ban, but admissions still plummet, data shows Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 158 of 173 IN LIMBO Each twist Each twistinin U.S. U.S. refugee refugee policy policy has left has Alireza, left Alireza, a gay Iranian a gayrefugee Iranian living refugee in Turkey, living in Turkey, confused, desperate confused, desperate for information, for information, and lessand hopeful lesshehopeful will everhemake willitever to themake United it States. to the United Alireza, 34, Alireza, 34,had had already already beenbeen interviewed interviewed by U.S.by officials U.S. officials and was on and track was foron resettlement track for resettlem when Trump when Trump issued issued his first his first refugee refugee ban in January. ban in January. He declined Hetodeclined share his last to share name because his last name his family his familydoes does notnot know know he ishe gay, isbut gay, he but shared hedocuments shared documents with Reuterswith on his Reuters case to on his case confirm his confirm his identity identity andand refugee refugee status.status. When Trump's When Trump's banban waswas initially initially blocked blocked by federal by federal courts, Alireza courts, was Alireza able towas continue ablethe to continue t vetting process vetting process andand was was close close to the point to the ofpoint being resettled. of beingThen resettled. came the Then Supreme cameCourt the Supreme ruling reinstating ruling reinstating the the ban,ban, and then andthe then newthe restrictions new restrictions replacing the replacing ban. As athe refugee ban.from As a refugee one ofofthe one the1111 countries countries targeted targeted for additional for additional scrutiny, scrutiny, he is once he again is in once limbo. again in limbo. Alireza questions Alireza questions the the national national security security logic oflogic the new of review. the new Hereview. and his boyfriend He and his of 13 boyfriend of 1 years fled years fledtoto Turkey Turkey in 2014 in 2014 afterafter facingfacing harassment, harassment, beatings and beatings extortion and in Iran. extortion Humanin Iran. Hum rights groups rights groups saysay that that discriminatory discriminatory laws in laws Iran against in Iransexual against minorities sexualputminorities them at riskput of them at harassment andand harassment violence. violence. In Turkey, Turkey,hehesaid, said, theythey scrape scrape by with byunstable with unstable part-timepart-time work and feel work threatened and feelbythreatened what by w they see they seeasas a rise a rise in anti-gay in anti-gay sentiment sentiment in Turkish in Turkish society. society. "We ourselves "We ourselves have have beenbeen hurt by hurt theby Islamist the Islamist system insystem Iran," heinsaid Iran," in a he recent said telephone in a recent teleph interview from interview from Eskisehir, Eskisehir, in northwestern in northwestern Turkey.Turkey. "Why would "Why wewould suffer for wethree suffer years for(in three years Turkey) sosothat Turkey) that wewe could could comecome to America to America and commit and terrorism?" commit terrorism?" Reporting byby Reporting Yeganeh Yeganeh Torbati; Torbati; Editing Editing by Sueby Horton Sue and Horton Rossand Colvin Ross Colvin Our Standards: The Thomson Reuters Trust Principles. Apps Newsletters Reuters Plus Advertising Guidelines Cookies Terms of Use Privacy https://www.reuters.com/article/us-trump-effect-refugees/trump-lifts-refugee-ban-but-admissions-still-plummet-data-shows-idUSKBN1E21CR 7/13 EXHIBIT 5 Christian FY 2018 2 2 2 Total Cumulative 2 2 2 Data extracted from the Worldwide Refugee Admissions Processing System (WRAPS). Data prior to 2002 was migrated into WRAPS from a legacy system therefore we are providing post-2002 data. RPC/rpt_WebArrivalsReports/MX - Arrivals by Nationality and Religion Report Run Date: 3-January-2018 Data prior to 2002 was migrated into WRAPS from a legacy system therefore we are providing post-2002 data. Total Iran Religion Nationality To: 02 Jan 2018 From: 25 Oct 2017 Religion(s): All Religions Nationality(s): Iran as of 2-January-2018 Fiscal Year Refugee Arrivals Office of Admissions - Refugee Processing Center Bureau of Population, Refugees, and Migration Department of State Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 160 of 173 11 36 11 40 Moslem Moslem Shiite Moslem Suni No Religion 5 6 Kaaka'i Other Religion 13 Jewish 1 181 Christian Evangelical Christian 3 148 Bahai Catholic 7 Atheist 704 FY 2017 Total 5 40 11 36 11 6 13 1 181 3 148 7 704 Cumulative Data extracted from the Worldwide Refugee Admissions Processing System (WRAPS). Data prior to 2002 was migrated into WRAPS from a legacy system therefore we are providing post-2002 data. RPC/rpt_WebArrivalsReports/MX - Arrivals by Nationality and Religion Report Run Date: 3-January-2018 Iran Religion Nationality To: 02 Jan 2017 From: 25 Oct 2016 Religion(s): All Religions Nationality(s): Iran as of 2-January-2017 Fiscal Year Refugee Arrivals Office of Admissions - Refugee Processing Center Bureau of Population, Refugees, and Migration Department of State Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 161 of 173 2 Total 2 704 24 29 187 Cumulative Data extracted from the Worldwide Refugee Admissions Processing System (WRAPS). Data prior to 2002 was migrated into WRAPS from a legacy system therefore we are providing post-2002 data. RPC/rpt_WebArrivalsReports/MX - Arrivals by Nationality and Religion Report Run Date: 3-January-2018 Data prior to 2002 was migrated into WRAPS from a legacy system therefore we are providing post-2002 data. 704 24 Zoroastrian Total 29 187 FY 2017 Sabeans-Mandean Protestant Pentecostalist Religion Nationality To: 02 Jan 2017 From: 25 Oct 2016 as of 2-January-2017 Fiscal Year Refugee Arrivals Office of Admissions - Refugee Processing Center Bureau of Population, Refugees, and Migration Department of State Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 162 of 173 9 40 33 32 No Religion Protestant Sabeans-Mandean Zoroastrian 4 Moslem 5 8 Kaaka'i Moslem Suni 16 Jewish 51 251 Christian Moslem Shiite 2 46 Catholic Bahai 497 FY 2016 Total 32 33 40 9 5 51 4 8 16 251 2 46 497 Cumulative Data extracted from the Worldwide Refugee Admissions Processing System (WRAPS). Data prior to 2002 was migrated into WRAPS from a legacy system therefore we are providing post-2002 data. RPC/rpt_WebArrivalsReports/MX - Arrivals by Nationality and Religion Report Run Date: 3-January-2018 Iran Religion Nationality To: 02 Jan 2016 From: 25 Oct 2015 Religion(s): All Religions Nationality(s): Iran as of 2-January-2016 Fiscal Year Refugee Arrivals Office of Admissions - Refugee Processing Center Bureau of Population, Refugees, and Migration Department of State Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 163 of 173 EXHIBIT 6 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 165 of 173 POLITICO POLITICO Sen. Tammy Duckworth reacted to the letter by suggesting the Trump administration is seeking to "bury" the unflattering assessment from the inspector general. I Chip Somodevilla/Getty Images Watchdogsays Watchdog says Homeland Homeland Security Security bottlingbottling up travelupbantravel reportban report Agency 'violated two court orders' reining in early Trump immigration move, IG contends. By JOSH JOSHGERSTEIN, GERSTEIN,TED TED HESSON HESSON and SEUNG SEUNG MIN MIN KIM KIM 111/20/2017 10:58 PM EST I Updated 11/20/201711:48 PM EST The Department The Department of Homeland of Homeland Security's Security's officialofficial watchdog watchdog is accusingishis accusing own agency hisof own slow-walking agency oftheslow-walking public release public release of aofreport a report aboutabout confusion confusion that ensued thatearlier ensued this earlier year after this President year after Donald President Trump issued Donald Trump Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 166 of 173 his first travel ban executive order. The still-unreleased inspector general report found that senior managers at Customs and Border Protection were "caught by surprise" by Trump's order and that agency officials "violated two court orders" limiting implementation of Trump's directive to suspend travel to the U.S. by citizens of seven majority-Muslim countries, according to a letter sent to lawmakers Monday and obtained by POLITICO. The report's conclusions appear to be sharply in tension with the picture the White House tried to paint of the execution of Trump's Jan. 27 order, which led to confusion throughout the air travel system, protests at airports and delays at ports of entry to the U.S. "It really is a massive success story in terms of implementation on every single level," a senior administration official told reporters two days after Trump ordered the move. The unusual missive to Congress on Monday from Inspector General John Roth said his 87-page report was sent to DHS leadership Oct. 6, but officials have declined to authorize its release over the past six weeks. Roth said officials informed his office that the report is under review for information that may be subject to attorney-client privilege or to a privilege protecting the agency's "deliberative process." "I am very troubled by this development," Roth wrote, referring to the deliberate process claim. "This is the first time in my tenure as Inspector General that the Department has indicated that they may assert this privilege in connection with one of our reports or considered preventing the release of a report on that basis. In fact, we regularly have published dozens of reports that delve into the Department's rationale for specific policies and decisions, and comment on the basis and process on which those decisions were made." Asked about Roth's letter, DHS spokesman Tyler Houlton defended the department's handling of the report, as well as the travel ban Trump ordered Jan. 27. "The Department's many officials conducted themselves professionally, and in a legal manner, as they implemented an Executive Order issued by the President," Houlton said. "Material within the report is covered by privileges afforded by well-recognized law. This should come as no surprise as many of the activities in implementing the Executive Order were conducted amidst a large number of lawsuits and, later, court orders that shaped the Department's response." POLITICO obtained the letter Monday night from the office of Sen. Tammy Duckworth (D-Ill.), one of several dozen lawmakers who called for an IG probe into the impact of the first travel ban. She and Sen. Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 167 of 173 Dick Durbin (D-Ill.) reacted to the letter by suggesting that the Trump administration is seeking to "bury" the unflattering assessment from the IG. "We know that CBP officers have a difficult job — but when the President failed to provide even the most basic guidance or warning regarding his discriminatory and unconstitutional Muslim Ban, he clearly didn't make it any easier," Duckworth and Durbin wrote. "It's disappointing that the DHS Inspector General found that CBP violated two separate federal court orders during the chaotic implementation of this ill-conceived Executive Order, but it is frankly unacceptable that the Trump Administration now appears to be hiding that information not just from Congress, but from the public as well." "If the Trump Administration decides to bury an Inspector General report suggesting that's what happened, there will be repercussions in Congress," the senators warned. Despite the lack of permission to release the report, Roth's seven-page letter does outline its key findings. He suggests that while most Customs and Border Protection staffers did their best to implement the policy humanely, the lack of advance notice caused significant problems and led to a lack of clarity on key issues, including whether so-called green card holders were covered by the ban. "During the early period of the implementation of the order, neither CBP nor the Department was sure of the answers to basic questions as to the scope of the order, such as whether the order applied to Lawful Permanent Residents (LPRs), a significant percentage of the affected travelers and a fundamental question that should have been resolved early in the process," Roth wrote. The IG review compliments CBP personnel at various ports, saying many used their own funds to buy food and water for travelers delayed by the policy. The report also finds that officers generally complied with court orders that were quickly issued freezing efforts to expel travelers from the U.S. However, Roth said CBP defied court orders by providing guidance to airlines not to allow travelers from certain countries to board flights bound for the U.S. "While CBP complied with court orders at U.S. ports of entry with travelers who had already arrived, CBP was very aggressive in preventing affected travelers from boarding aircraft bound for the United States, and took actions that, in our view, violated, two separate court orders," he wrote. Records obtained by POLITICO through an ongoing Freedom of Information Act lawsuit underscore concerns by DHS personnel that there was no clear guidance about how to interpret the first order. "We got a memo from the White House saying one thing and now the Press Secretary said another," a senior CBP official wrote to an American Airlines executive in a Feb. 1 email explaining why the agency just Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 168 of 173 abruptly withdrew guidance sent to major international air carriers. Former Justice Department Inspector General Michael Bromwich said a letter like Roth's is a rarity, but so is an agency trying to block disclosure of a report on the grounds being cited by DHS. "It's quite unusual. If agencies asserted these privileges as broadly as the letter says DHS is doing in this case, the ability of IGs to investigate important matters would be significantly compromised," Bromwich told POLITICO. "In my tenure as IG, I don't recall any instances in which the attorney-client or deliberative privileges were invoked by DOJ." EXHIBIT 7 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 170 of 173 Homelandsecurity Homeland security inspector inspector general general retires amid retires amid flapover flap overtravel travel banban report report By Tal Kogan, CNN Updated 7:07 PM ET, Thu November 30, 2017 STORY HIGHLIGHTS Washington (CNN) — The The Department Department of Homeland of Homeland Security's Security's inspector inspector general isgeneral retiring from retiring from hishis post post as a as battle a battle continues continues over whether overthe whether department the will department wil allow the allow therelease release of aof report a report he wrote he wrote criticalcritical of the administration's of the administration's travel ban. travel b At issue is a report finished by the IG in early October Acting Secretary Elaine Duke confirmed that the issue was still being looked at DHS watchdog DHS watchdog John John Roth Roth will be willstepping be stepping down, his down, officehis confirmed, office confirmed, though thoug spokeswoman Arlen spokeswoman Arlen Morales Morales said the said decision the decision has been has in thebeen works infor the some works for so time and time andisis notnot related related to the tofight the over fightthe over travel theban travel report. ban report. "He's retiring "He's retiring after after 32 years 32 years of federal of federal service," service," Morales Morales told CNN.told "He's CNN. moving "He's movin on. It's on. It'shis his own own decision." decision." Reuters was Reuters was first first to report to report the news, the news, citing an citing interview an interview with Roth with in which Roth he in which h also denied also denied a link a link between between the report the report and hisand retirement. his retirement. Roth's last Roth's day was last Thursday, day was according Thursday, to a source according familiarto with a source the familiar matter and matter and thethe Reuters Reuters report. report. Roth's retirement Roth's retirement comes comes amid amid a struggle a struggle over whether over the whether document thehe document wrote can be hereleased. wrote can be released. The inspector The inspector general general finished finished the report the in report early in October. early On October. November On 20, November Roth wrote 20, toRoth three Democratic wrote to three senators Democratic who had senators w requested thethe requested investigation investigation into the into travel theban's travel implementation ban's implementation to say the department to say the wasdepartment preventing the was report's preventing release. the report's re Acting Homeland Acting Homeland Security Security Secretary Secretary ElaineElaine Duke confirmed Duke confirmed that the issue thatwas thestill issue being was looked stillatbeing on Thursday, lookedtestifying at on Thursday, before the testifyi House Homeland House Homeland Security Security Committee Committee that thethat department the department wants to block wants the to release block of the portions release of the ofreport, portions which offound the report, which f violations ofof violations law. law. She testified She testified that that DHS DHS has has asserted asserted attorney-client attorney-client and executive and privileges, executivenoting privileges, the travel noting ban isthe under travel litigation. ban is under litigation. Duke said Duke saidshe she feels feels "comfortable" "comfortable" that thethat claims theofclaims privilege of are privilege "accurate," are but "accurate," "to be absolutely but "to sure be...absolutely we have ordered sure a...thirdwe have orde party independent party independent review review to make to make sure that sure the that privileges the privileges that we need that to redact we need that to report redact are sound." that report are sound." After her After hertestimony, testimony, a DHS a DHS spokesman spokesman said in said an emailed in an statement emailed that statement the department that the believes department it will release believes the report it will"soon." release the rep "The Department "The Department of Justice of Justice is conducting is conducting a third-party a third-party review of the review privileged of thedocuments privileged in the documents report," spokesman in the report," Tyler Houlton spokesman Ty said. "We said. "Wealways always intended intended to release to release this terribly this terribly flawed report flawed -- and report likely--will anddolikely so soon will -- do but so given soon the conversations -- but given the covered conversations in the report the report and and litigation litigation at issue at issue with regard with to regard the E0to (executive the E0 (executive order) we need order) to ensure we need that privileged to ensure material that privileged is considered material and is co handled appropriately. handled appropriately. ThisThis is normal, is normal, common common and expected." and expected." Roth told Roth toldthe the senators senators in hisinearlier his earlier letter that letter his report that his hadreport found that hadthe found leadership that the of Customs leadership and Border of Customs Protection and within Border DHS Protectio had "virtually had "virtually nono warning" warning" for the fortravel the travel ban, which ban,places which varying places restrictions varying on restrictions travel to theon UStravel by nationals to thefrom US by certain nationals countries from - certa - many manyofofthem them with with Muslim Muslim majorities majorities -- and--has and been has thebeen subject the of subject litigationof since litigation its controversial since itsrelease controversial in January release and in January subsequent rewrites. subsequent rewrites. The inspector The inspector general general said said that while that Customs while Customs and Border and Protection Border overall Protection made overall a good-faith made effort a good-faith to implement effort the ban to and implement the follow court follow court instructions, instructions, it diditviolate did violate court orders courtinorders preventing in preventing travelers abroad travelers from boarding abroad airplanes from boarding to the US. airplanes And whiletohethe US. An was able was abletoto find find thatthat some some accusations accusations of misconduct of misconduct in the US did in not theoccur, US did Roth notsaid occur, the office Roth"cannot said the ruleoffice out that "cannot isolated rule out tha abuse occurred." abuse occurred." Regarding DHS's Regarding DHS's assertion assertion of privilege, of privilege, Roth wrote Roththat wrote he was that "very he was troubled" "very bytroubled" the department's by the efforts department's to stop the report's efforts to stop the release. HeHe release. said said it was it was the first the time firstin time his tenure in histhat tenure such that an event such had anoccurred. event had occurred. "In fact, "In fact,we weregularly regularly have have published published dozensdozens of reports ofthat reports delve that into the delve department's into the rationale department's for specific rationale policies for and specific decisions, policies a and comment and comment on on the the basisbasis and process and process on whichon those which decisions those were decisions made," Roth were wrote. made," "Indeed, Roththat wrote. is at the "Indeed, heart ofthat whatis at the hea inspectors general inspectors general do."do." Roth met Roth metwith with one one of the of the senators, senators, Democrat Democrat Tammy Duckworth Tammy Duckworth of Illinois, on of Wednesday. Illinois, on In Wednesday. the meeting, In Roth thementioned meeting,his Roth mention retirement but retirement but said said he was he was simply simply ready to ready retireto and retire the decision and the was decision unrelatedwas to the unrelated report, according to the report, to Duckworth's according office. to Duckworth Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 171 of 173 Still, after the meeting, Duckworth said she was very concerned about the potential for the Justice Department to try to stymie the report's release. She said most of the inspectors general's work has to do with deliberative processes. "If you're going to invoke a privilege and say that, 'Sorry, we can't discuss that' or 'we can't talk about that because it goes to the deliberative process,' then what you're doing is you're just shutting down the ability of the IG to do work," Duckworth said in an interview. "It would be a significant departure that could really degrade the ability of IGs across government to do their work, which would be really concerning." Depending on DHS's next steps, Duckworth is considering writing to inspectors general government-wide on whether they have faced a deliberative process issue before and, if the report continues to be unreleased, whether there are legislative options to strengthen the Inspector General Act, according to her office. CNN's David Shortell contributed to this report. EXHIBIT 8 Case 1:17-cv-00255-TSC Document 135-1 Filed 01/03/18 Page 173 of 173 From: Sent: To: Cc: Subject: Freedman, John A. Wednesday, January 03, 2018 1:57 PM Schwei, Daniel S. (CIV) 'jgreenbaum@lawyerscommittee.org'; Jones, Stanton; 'Cyrus Mehri'; Pei, Sally; 'Joanna Wasik'; Wirth, Stephen K. Pars Equality Center et al v. Trump et al : DDC Rule 7(m) Communication Daniel -Happy New Year. Plaintiffs intend to file a status report later this afternoon updating the Court on certain developments, including the Ninth Circuit and Western District of Washington decisions issued just prior to the holidays. In conjunction with that report, we intend to reiterate our request for entry of a preliminary injunction, or in the alternative, for the Court to issue a scheduling order for the case to proceed on the merits. Pursuant to Local Rule 7(m), please let us know your position. We look forward to hearing from you. Best regards, John