Case 8:17-cv-00361-TDC Document 265 Filed 11/07/18 Page 1 of 2

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
____________________________________
)
INTERNATIONAL REFUGEE
)
ASSISTANCE PROJECT, et al.,
)
)
Plaintiffs,
)
)
v.
)
No. 8:17-cv-00361-TDC
)
DONALD TRUMP, in his official capacity )
as President of the United States, et al.,
)
)
Defendants.
)
____________________________________)
)
IRANIAN ALLIANCES ACROSS
)
BORDERS, et al.,
)
)
Plaintiffs,
)
)
v.
)
No. 8:17-cv-02921-TDC
)
DONALD J. TRUMP, in his official
)
capacity as President of the United
)
States, et al.,
)
)
Defendants.
)
____________________________________)
)
EBLAL ZAKZOK, et al.,
)
)
Plaintiffs,
)
)
v.
)
No. 1:17-cv-02969-TDC
)
DONALD TRUMP, in his official capacity )
as President of the United States, et al.,
)
)
Defendants.
)
____________________________________)
DEFENDANTS’ COMBINED MOTION TO DISMISS

 Case 8:17-cv-00361-TDC Document 265 Filed 11/07/18 Page 2 of 2

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants hereby move to dismiss
the complaints in all three above-captioned cases for failure to state a claim upon which relief can
be granted. See 2d Am. Compl., Int’l Refugee Assistance Project v. Trump, No. 8:17-cv-361-TDC
(D. Md. Oct. 5, 2017), ECF No. 203; 2d Am. Compl., Iranian Alliances Across Borders v. Trump,
No. 8:17-cv-02921-TDC (D. Md. Nov. 2, 2018), ECF No. 78; Am. Compl., Zakzok v. Trump,
No. 8:17-cv-2969-TDC (D. Md. Nov. 2, 2018), ECF No. 62. The reasons supporting Defendants’
motion are set forth in the accompanying memorandum of law.

Dated: November 7, 2018

Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
ROBERT K. HUR
United States Attorney
JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Daniel Schwei
DANIEL SCHWEI (Bar No. 96100)
MICHELLE R. BENNETT (Bar No. 806456)
Senior Trial Counsel
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L St. NW
Washington DC 20005
Tel: (202) 305-8693
Fax: (202) 616-8460
E-mail: daniel.s.schwei@usdoj.gov

 Case 8:17-cv-00361-TDC Document 265-1 Filed 11/07/18 Page 1 of 35

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
____________________________________
)
INTERNATIONAL REFUGEE
)
ASSISTANCE PROJECT, et al.,
)
)
Plaintiffs,
)
)
v.
)
No. 8:17-cv-00361-TDC
)
DONALD TRUMP, in his official capacity )
as President of the United States, et al.,
)
)
Defendants.
)
____________________________________)
)
IRANIAN ALLIANCES ACROSS
)
BORDERS, et al.,
)
)
Plaintiffs,
)
)
v.
)
No. 8:17-cv-02921-TDC
)
DONALD J. TRUMP, in his official
)
capacity as President of the United
)
States, et al.,
)
)
Defendants.
)
____________________________________)
)
EBLAL ZAKZOK, et al.,
)
)
Plaintiffs,
)
)
v.
)
No. 1:17-cv-02969-TDC
)
DONALD TRUMP, in his official capacity )
as President of the United States, et al.,
)
)
Defendants.
)
____________________________________)
DEFENDANTS’ COMBINED MEMORANDUM IN SUPPORT OF
DEFENDANTS’ MOTIONS TO DISMISS

 Case 8:17-cv-00361-TDC Document 265-1 Filed 11/07/18 Page 2 of 35

TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 2
I.

Legal Framework ................................................................................................................ 2

II.

Executive Order No. 13,780 and the Proclamation ............................................................ 3

III.

Procedural History .............................................................................................................. 7

STANDARD OF REVIEW ............................................................................................................ 9
ARGUMENT .................................................................................................................................. 9
I.

II.

Plaintiffs’ Statutory Claims Should Be Dismissed ........................................................... 10
A.

The Proclamation Is Well Within the President’s Authority Under the INA ........ 10

B.

Plaintiffs Cannot Obtain Review of the Proclamation Under the APA ................ 10

C.

The Refugee Act Claims are Both Moot and Meritless ........................................ 14

D.

Plaintiffs Have Not Stated a Plausible Claim Under RFRA ................................. 15

E.

All of Plaintiffs’ Statutory Claims are Foreclosed by Fundamental
Principles of Non-Reviewability........................................................................... 17

Plaintiffs’ Constitutional Claims Should Be Dismissed ................................................... 20
A.

Plaintiffs’ Constitutional Claims are Foreclosed by the Supreme Court’s
Decision in Trump v. Hawaii ................................................................................ 21

B.

Plaintiffs’ Constitutional Claims Also Fail for Additional Reasons ..................... 25

CONCLUSION ............................................................................................................................. 28

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TABLE OF AUTHORITIES
Cases
Alabama v. United States,
198 F. Supp. 3d 1263 (N.D. Ala. 2016) .................................................................................... 14
Allen v. Wright,
468 U.S. 737 (1984) .................................................................................................................. 27
Ancient Coin Collectors Guild v. U.S. Customs & Border Prot.,
801 F. Supp. 2d 383 (D. Md. 2011), aff’d, 698 F.3d 171 (4th Cir. 2012) ........................... 10, 11
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................................. 9, 15, 16, 17
Block v. Cmty. Nutrition Inst.,
467 U.S. 340 (1984) .................................................................................................................. 12
Borzych v. Frank,
439 F.3d 388 (7th Cir. 2006) ..................................................................................................... 17
Bostic v. Schaefer,
760 F.3d 352 (4th Cir. 2014) ....................................................................................................... 9
Brownell v. Tom We Shung,
352 U.S. 180 (1956) .................................................................................................................. 19
Dalton v. Specter,
511 U.S. 462 (1994) .................................................................................................................. 12
Fiallo v. Bell,
430 U.S. 787 (1977) ............................................................................................................ 22, 25
Franklin v. Massachusetts,
505 U.S. 788 (1992) ...................................................................................................... 10, 12, 13
Goodall v. Stafford Cty. Sch. Bd.,
60 F.3d 168 (4th Cir. 1995) ....................................................................................................... 15
Haitian Refugee Ctr., Inc. v. Baker,
953 F.2d 1498 (11th Cir. 1992) ................................................................................................. 14
Haitian Refugee Ctr., Inc. v. Baker,
789 F. Supp. 1552 (S.D. Fla. 1991)........................................................................................... 11

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Harisiades v. Shaughnessy,
342 U.S. 580 (1952) .................................................................................................................. 18
Hawaii v. Trump,
265 F. Supp. 3d 1140 (D. Haw. 2017) ......................................................................................... 8
Hawaii v. Trump,
878 F.3d 662 (9th Cir. 2017) ....................................................................................................... 8
Heckler v. Chaney,
470 U.S. 821 (1985) .................................................................................................................. 11
Henderson v. Kennedy,
253 F.3d 12 (D.C. Cir. 2001) .................................................................................................... 15
Holt v. Hobbs,
135 S. Ct. 853 (2015) ................................................................................................................ 15
In re Birmingham,
846 F.3d 88 (4th Cir. 2017) ......................................................................................................... 9
IRAP v. Trump,
265 F. Supp. 3d 570 (D. Md. 2017) ............................................................................................ 8
IRAP v. Trump,
883 F.3d 233 (4th Cir. 2018) ....................................................................................................... 8
IRAP v. Trump,
905 F.3d 287 (4th Cir. 2018) ....................................................................................................... 8
IRAP v. Trump,
138 S. Ct. 2710 (2018) ................................................................................................................ 8
Kerry v. Din,
135 S. Ct. 2128 (2015) .................................................................................................. 22, 25, 26
Kleindienst v. Mandel,
408 U.S. 753 (1972) .................................................................................................. 2, 21, 22, 26
Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118 (2014) .................................................................................................................. 27
Liberty Univ., Inc. v. Lew,
733 F.3d 72 (4th Cir. 2013) ....................................................................................................... 15

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Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871 (1990) .................................................................................................................. 12
Lyng v. Nw. Indian Cemetary Protective Ass’n,
485 U.S. 439 (1988) .................................................................................................................. 15
McGowan v. Maryland,
366 U.S. 420 (1961) ............................................................................................................ 26, 27
Norton v. S. Utah Wilderness All.,
542 U.S. 55 (2004) .................................................................................................................... 20
Rajah v. Mukasey,
544 F.3d 427 (2d Cir. 2008) ................................................................................................ 14, 22
Rasul v. Myers,
512 F.3d 644 (D.C. Cir. 2008) .................................................................................................. 16
Rasul v. Myers,
555 U.S. 1083 (2008) ................................................................................................................ 16
Reno v. Am.-Arab Anti-Discrimination Comm.,
525 U.S. 471 (1999) ............................................................................................................ 11, 18
Saavedra Bruno v. Albright,
197 F.3d 1153 (D.C. Cir. 1999) ..................................................................................... 12, 18, 19
Sale v. Haitian Ctrs. Council, Inc.,
509 U.S. 155 (1993) .................................................................................................................. 17
State of Neb. Dep’t of Health & Human Servs. v. Dep’t of Health & Human Servs.,
435 F.3d 326 (D.C. Cir. 2006) .................................................................................................. 17
Swarthout v. Cooke,
562 U.S. 216 (2011) .................................................................................................................. 25
Swartz v. Rogers,
254 F.2d 338 (D.C. Cir. 1958) .................................................................................................. 25
Texas Health & Human Servs. Comm’n v. United States,
193 F. Supp. 3d 733 (N.D. Tex. 2016) ...................................................................................... 14
Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,
450 U.S. 707 (1981) .................................................................................................................. 15

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Trump v. Hawaii,
138 S. Ct. 2392 (2018) ....................................................................................................... passim
Trump v. IRAP,
138 S. Ct. 353 (2017) ................................................................................................................ 14
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) ........................................................................................................ 2, 17, 26
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc.,
454 U.S. 464 (1982) .................................................................................................................. 27
Statutes
5 U.S.C. § 553 ............................................................................................................................... 13
5 U.S.C. § 701 ............................................................................................................................... 11
5 U.S.C. § 702 ......................................................................................................................... 10, 12
5 U.S.C. § 704 ............................................................................................................................... 10
6 U.S.C. § 236 ............................................................................................................................... 18
8 U.S.C. § 1152 ......................................................................................................................... 1, 10
8 U.S.C. § 1181 ............................................................................................................................... 2
8 U.S.C. § 1182 ...................................................................................................................... passim
8 U.S.C. § 1187 ............................................................................................................................... 2
8 U.S.C. § 1201 ............................................................................................................................... 2
8 U.S.C. § 1202 ............................................................................................................................... 2
8 U.S.C. § 1203 ............................................................................................................................... 2
8 U.S.C. § 1204 ............................................................................................................................... 2
8 U.S.C. § 1225 ............................................................................................................................... 2
8 U.S.C. § 1252 ............................................................................................................................. 18
42 U.S.C. § 2000bb-1 ............................................................................................................. 15, 17

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Regulations
22 C.F.R. § 41.102 .......................................................................................................................... 2
22 C.F.R. § 42.62 ............................................................................................................................ 2
Other Executive Materials
Protecting the Nation from Foreign Terrorist Entry Into the United States
Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) ........................................... passim
Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities
Exec. Order No. 13,815, 82 Fed. Reg. 50,055 (Oct. 27, 2017) ................................................ 14
Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry
into the United States by Terrorists or Other Public Safety Threats
Procl. No. 9645, 82 Fed. Reg. 45,161 (Sept. 27, 2017) ..................................................... passim
Maintaining Enhanced Vetting Capabilities and Processes for Detecting Attempted
Entry Into the United States by Terrorists or Other Public-Safety Threats
Procl. No. 9723, 83 Fed. Reg. 15,937 (Apr. 13, 2018) ............................................................... 7
Other Authorities
H.R. Rep. No. 87-1086 (1961) ...................................................................................................... 19
U.S. Dep’t of State, June 26 Supreme Court Decision on Presidential Proclamation 9645,
http://goo.gl/nQBuWK (last visited Nov. 6, 2018) ..................................................................... 7

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INTRODUCTION
Earlier this year, the Supreme Court upheld the validity of Proclamation No. 9645,
Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States
by Terrorists or Other Public Safety Threats, 82 Fed. Reg. 45,161 (Sept. 27, 2017), by rejecting a
number of statutory and constitutional challenges and reversing a nationwide preliminary
injunction prohibiting the Proclamation’s enforcement. See Trump v. Hawaii, 138 S. Ct. 2392
(2018). Notwithstanding the Supreme Court’s decision, plaintiffs in these three cases seek to
continue with their challenges to the Proclamation—even though the plaintiffs here raise largely
the same claims and arguments that the Supreme Court has already rejected. Plaintiffs’ claims are
meritless, and the complaints in all three cases should be dismissed for failure to state a claim.
First, none of plaintiffs’ statutory claims may proceed. The Supreme Court unequivocally
rejected the claims that the Proclamation exceeds the President’s authority under 8 U.S.C.
§ 1182(f) and violates the non-discrimination provision of 8 U.S.C. § 1152(a)(1)(A). As for
plaintiffs’ other statutory claims, they are likewise foreclosed. Judicial review of the Proclamation
is unavailable under the Administrative Procedure Act (APA) because the Proclamation is
Presidential action for which APA review is unavailable, and also because plaintiffs fail to satisfy
other threshold requirements for APA claims. With respect to claims under the Refugee Act, the
Proclamation does not address refugee-related issues at all. And as for claims under the Religious
Freedom Restoration Act (RFRA), plaintiffs have not identified any particular plaintiff’s exercise
of religion that has been substantially burdened by the Proclamation. All of plaintiffs’ statutory
claims therefore fail on the merits. Even if the Court is not inclined to dismiss the claims on the
merits, however, the claims should still be dismissed for lack of justiciability based on fundamental
principles of non-reviewability.
Second, plaintiffs’ constitutional claims also fail. In Hawaii, the Supreme Court made clear
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that all constitutional challenges to the Proclamation brought by U.S. citizens are governed by the
deferential standard of review set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972). And the
Court made equally clear that the Proclamation satisfies not only that standard but also rationalbasis review. Rejecting each of the arguments plaintiffs make here, the Court held that “there is
persuasive evidence that the entry suspension has a legitimate grounding in national security
concerns, quite apart from any religious hostility,” and therefore the Court “must accept that
independent justification.” Hawaii, 138 S. Ct. at 2421. The Supreme Court’s decision thus
forecloses plaintiffs’ constitutional claims as well.
BACKGROUND
I.

Legal Framework
“The exclusion of aliens is a fundamental act of sovereignty” that both is an aspect of the

“legislative power” and also “is inherent in the executive power to control the foreign affairs of
the nation.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).
Under the Immigration and Nationality Act (INA), admission to the United States normally
requires a valid visa or other valid travel document. 8 U.S.C. §§ 1181, 1182(a)(7)(A)(i) and
(B)(i)(II), 1203. Applying for a visa typically requires an in-person interview and results in a
decision by a Department of State consular officer. Id. §§ 1201(a)(1), 1202(h), 1204; 22 C.F.R.
§§ 41.102, 42.62. Although a visa generally is necessary for admission, it does not guarantee
admission; the alien still must be found admissible upon arriving at a port of entry. 8 U.S.C.
§§ 1201(h), 1225(a). Congress has enabled certain nationals of certain countries to seek temporary
admission without a visa under the Visa Waiver Program. Id. §§ 1182, 1187.
Building upon the President’s inherent authority to exclude aliens, see Knauff, 338 U.S.
at 542, Congress has likewise accorded the President broad discretion to restrict the entry of aliens.
Section 1182(f ) of Title 8 authorizes the President to “suspend the entry of all aliens or any class
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of aliens” “for such period as he shall deem necessary” whenever he finds that such entry “would
be detrimental to the interests of the United States.” Section 1185(a)(1) further empowers the
President to adopt “reasonable rules, regulations,” “orders,” and “limitations and exceptions” on
the entry of aliens.
II.

Executive Order No. 13,780 and the Proclamation
On March 6, 2017, the President issued Executive Order No. 13,780, 82 Fed. Reg. 13,209

(Mar. 9, 2017) [hereafter “EO-2”]. Among other things, EO-2 directed the Secretary of Homeland
Security to conduct a global review to determine whether foreign governments provide adequate
information about their nationals seeking U.S. visas. See EO-2 § 2(a). EO-2 directed the Secretary
to report to the President which countries do not provide adequate information, after which nations
identified as deficient would have time to alter their practices, prior to the Secretary recommending
entry restrictions on nations that remained inadequate or presented other special circumstances.
See id. § 2(d)-(f).
The Department of Homeland Security (DHS), in consultation with the State Department
and the Office of the Director of National Intelligence, conducted the review EO-2 had directed.
Procl. § 1(c). The agencies undertook “to identify whether, and if so what, additional information
will be needed from each foreign country to adjudicate an application by a national of that country
for a visa, admission, or other benefit under the INA . . . in order to determine that the individual
is not a security or public-safety threat.” Id. The review examined “[i]nformation-sharing and
identity-management protocols and practices of foreign governments,” because it is those
governments that “manage the identity and travel documents of their nationals and residents” and
“control the circumstances under which they provide . . . information about known or suspected
terrorists and criminal-history information.” Id. § 1(b).

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The agencies developed a “baseline” for the information required from foreign
governments, which incorporated three components:
(i) identity-management information, i.e., “information needed to determine
whether individuals seeking benefits under the immigration laws are who they
claim to be,” which includes “whether the country issues electronic passports
embedded with data to enable confirmation of identity, reports lost and stolen
passports to appropriate entities, and makes available upon request identity-related
information not included in its passports”;
(ii) national-security and public-safety information about whether a person seeking
entry poses a risk, which includes “whether the country makes available . . . known
or suspected terrorist and criminal-history information upon request,” “whether the
country impedes the United States Government’s receipt of information about
passengers and crew traveling to the United States,” and “whether the country
provides passport and national-identity document exemplars”; and
(iii) a national-security and public-safety risk assessment, which includes “whether
the country is a known or potential terrorist safe haven, whether it is a participant
in the Visa Waiver Program . . . that meets all of [the Program’s] requirements, and
whether it regularly fails to receive its nationals subject to final orders of removal
from the United States.”
Procl. § 1(c).
DHS, in coordination with the State Department, collected and evaluated data regarding all
foreign governments. Id. § 1(d). Applying the baseline factors, DHS identified 16 countries as
having “inadequate” information-sharing practices and risk factors, and another 31 countries as
“at risk” of becoming “inadequate.” Id. § 1(e). The State Department then conducted a 50-day
diplomatic engagement to encourage all foreign governments to improve their performance,
yielding significant improvements from many countries. Id. § 1(f). Multiple countries provided
travel-document exemplars to combat fraud and/or agreed to share information on known or
suspected terrorists. Id.
After completing the review, the then-Acting Secretary of Homeland Security identified
seven countries that, even after diplomatic engagement, continued to have inadequate identity-

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management protocols or information-sharing practices, or other heightened risk factors: Chad,
Iran, Libya, North Korea, Syria, Venezuela, and Yemen. Procl. § 1(g) and (h). The Acting
Secretary recommended that the President impose entry restrictions on certain nationals from those
countries. Id. § 1(h). She also recommended entry restrictions for certain nationals of Somalia,
because although Somalia generally satisfies the information-sharing component of the baseline
standards, it has other heightened risk factors, including “identity-management deficiencies” and
a “significant terrorist presence.” Id. § 1(i).1
On September 24, 2017, after evaluating the Acting Secretary’s recommendations, and in
consultation with multiple Cabinet members and other officials, the President issued the
Proclamation.

Procl. § 1(h)(i).

Considering numerous factors—including each country’s

“capacity, ability, and willingness to cooperate with our identity-management and informationsharing policies and each country’s risk factors,” as well as “foreign policy, national security, and
counterterrorism goals”—the President found that entry of certain foreign nationals from the eight
countries identified by the Acting Secretary “would be detrimental to the interests of the United
States.” Id. at pmbl., § 1(h)(i).
Based on that finding and “in accordance with the [Acting Secretary’s] recommendations,”
the President imposed tailored restrictions on those nationals’ entry. Id. § 1(h)(i)-(iii). He
determined that the restrictions are “necessary to prevent the entry of those foreign nationals about
whom the United States Government lacks sufficient information to assess the risks they pose to
the United States,” and “to elicit improved identity-management and information-sharing

1

The Acting Secretary assessed that Iraq does not meet the baseline, but she recommended
not restricting entry of Iraqi nationals given the close cooperative relationship between the U.S.
and Iraqi governments, the strong U.S. diplomatic presence in Iraq, the significant presence of
U.S. forces there, and Iraq’s commitment to combatting ISIS. Procl. § 1(g).
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protocols and practices from foreign governments.” Id. § 1(h)(i). He explained that these
“country-specific restrictions” would be the “most likely to encourage cooperation given each
country’s distinct circumstances,” while “protect[ing] the United States until such time as
improvements occur.” Id.
For countries that refuse to cooperate regularly with the United States (Iran, North Korea,
and Syria), the Proclamation largely suspended entry of all nationals, except for Iranians seeking
nonimmigrant student (F and M) and exchange-visitor (J) visas. Id. § 2(b)(ii), (d)(ii), and (e)(ii).
For countries that are valuable counter-terrorism partners but have deficiencies (Chad, Libya, and
Yemen), the Proclamation suspended entry only of nationals seeking immigrant visas and
nonimmigrant business, tourist, and business/tourist visas. Id. § 2(a)(ii), (c)(ii), and (g)(ii). For
Somalia, the Proclamation suspended entry of nationals seeking immigrant visas and requires
additional scrutiny of nationals seeking nonimmigrant visas, in light of the “special concerns that
distinguish it from other countries.” Id. § 2(h)(i)-(ii). For Venezuela, which refuses to cooperate
in information sharing but for which alternative means are available to identify its nationals, the
Proclamation suspended entry only of government officials “involved in screening and vetting
procedures” and “their immediate family members” on nonimmigrant business or tourist visas. Id.
§ 2(f)(i)-(ii).
The Proclamation provides for exceptions and case-by-case waivers when a foreign
national demonstrates undue hardship and that his entry would not pose a threat to the national
security or public safety and would be in the national interest. Id. § 3(c)(i)(A)-(C). The State
Department has publicly reported that it has issued thousands of waivers under the Proclamation,

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and is continuing to review and issue waivers on an ongoing basis.2
The Proclamation also requires the agencies to assess on an ongoing basis whether entry
restrictions should be continued, modified, terminated, or supplemented, and to report these
recommendations to the President every 180 days. Id. § 4. As part of that reporting process, and
as a result of progress made to address the Proclamation’s baseline standards, in April 2018 the
President determined, on the recommendation of the Secretary of Homeland Security, that it was
appropriate to remove the entry restrictions on nationals of Chad. See Proclamation No. 9723,
Maintaining Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry Into the
United States by Terrorists or Other Public-Safety Threats, 83 Fed. Reg. 15,937 (Apr. 13, 2018).
III.

Procedural History
The Proclamation was challenged in this Court and several others. Here, plaintiffs in three

cases sought to challenge the Proclamation on a variety of statutory and constitutional grounds, on
behalf of both individual plaintiffs and organizations. See 2d Am. Compl., Int’l Refugee Assistance
Project (IRAP) v. Trump, No. 8:17-cv-361-TDC (D. Md. Oct. 5, 2017), ECF No. 203; Am. Compl.,
Iranian Alliances Across Borders (IAAB) v. Trump, No. 8:17-cv-02921-TDC (D. Md. Oct. 12,
2017), ECF No. 37; Compl., Zakzok v. Trump, No. 8:17-cv-2969-TDC (D. Md. Oct. 6, 2017), ECF
No. 01.
This Court entered a global preliminary injunction prohibiting enforcement of the
Proclamation’s entry suspensions, except with regard to nationals of North Korea, nationals of
Venezuela, and individuals lacking a credible claim of a bona fide relationship with a person or
2

See U.S. Dep’t of State, June 26 Supreme Court Decision on Presidential
Proclamation 9645, http://goo.gl/nQBuWK (last visited Nov. 6, 2018) (“As of October 31, 2018,
2,072 applicants were cleared for waivers after a consular officer determined the applicants
satisfied all criteria and completed all required processing. Many of those applicants already have
received their visas.”); cf. Zakzok Am. Compl. (ECF No. 62) ¶¶ 10-11 (noting that two plaintiffs’
relatives have received waivers to the Proclamation and have already entered the country).
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entity in the United States. See IRAP v. Trump, 265 F. Supp. 3d 570 (D. Md. 2017). The en banc
Fourth Circuit affirmed this Court’s decision. See IRAP v. Trump, 883 F.3d 233 (4th Cir. 2018).
Separately, a district court in Hawaii entered a worldwide temporary restraining order
(TRO) barring enforcement of the Proclamation’s entry suspensions except as to nationals of North
Korea and Venezuela. See Hawaii v. Trump, 265 F. Supp. 3d 1140 (D. Haw. 2017). The district
court converted its TRO into a preliminary injunction, and the Ninth Circuit then affirmed that
injunction except as to aliens lacking a credible claim of a bona fide relationship with a person or
entity in the United States. See Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017).
The Supreme Court granted review over the Ninth Circuit’s decision and then reversed the
injunction. The Court rejected both statutory and constitutional challenges to the Proclamation,
see Hawaii, 138 S. Ct. at 2407-23, concluding that “[b]ecause plaintiffs have not shown that they
are likely to succeed on the merits of their claims, we reverse the grant of the preliminary injunction
as an abuse of discretion.” Id. at 2423. The Court also provided that “[t]he case now returns to
the lower courts for such further proceedings as may be appropriate.” Id. Following the Supreme
Court’s decision, the challengers in Hawaii voluntarily dismissed their claims. See Notice of
Dismissal, Hawaii v. Trump, No. 17-cv-50 (D. Haw. Aug. 13, 2018), ECF No. 415.
With respect to the Fourth Circuit’s decision in IRAP, the Supreme Court granted review,
vacated the Fourth Circuit’s judgment, and remanded the case back to the Fourth Circuit for further
consideration in light of Hawaii. See IRAP v. Trump, 138 S. Ct. 2710 (2018). On October 2, 2018,
the Fourth Circuit entered an order “remand[ing] this case to the district court for further
proceedings consistent with the Supreme Court’s decision.” IRAP v. Trump, 905 F.3d 287 (4th Cir.
2018). Four judges separately concurred in that order, observing that the Supreme Court’s decision
“fundamentally disagreed with our reasoning and conclusions” in the IRAP opinion, and that the

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Supreme Court’s decision should also be viewed as having overruled “the reasoning and
conclusions reached by the district court[.]” Id.
Following the Fourth Circuit’s remand order, the plaintiffs in all three of these cases
indicated their desire to continue with their claims, and the IAAB and Zakzok plaintiffs filed
amended complaints. See generally IRAP ECF No. 260; IAAB ECF Nos. 76, 78; Zakzok ECF
Nos. 60, 62. The Government now moves to dismiss the complaints in all three cases.
STANDARD OF REVIEW
“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the complaint. The motion should be granted unless the complaint ‘states a plausible
claim for relief.’” In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017) (internal citation omitted,
quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Although a court must accept all factual
allegations as true, the court is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Iqbal, 556 U.S. at 678.
ARGUMENT
In light of the Supreme Court’s decision in Hawaii, plaintiffs’ challenges to the
Proclamation are meritless and should be dismissed. Plaintiffs bring largely the same claims as
the ones that the Supreme Court already rejected, and there is no reason for a different conclusion
here. All three of the complaints should be dismissed for failure to state a claim upon which relief
can be granted.3

3

Defendants do not dispute that one of the IAAB plaintiffs has Article III standing to bring
his claims and that his claims are sufficiently ripe. See IAAB 2d Am. Compl. (ECF No. 78) ¶ 16
(describing how John Doe #6’s relative was denied both a visa and a waiver under the
Proclamation); Hawaii, 138 S. Ct. at 2417. Although the general rule is that “the presence of one
party with standing is sufficient to satisfy Article III’s case-or-controversy requirement,” Bostic v.
Schaefer, 760 F.3d 352, 370 (4th Cir. 2014), to the extent these cases remain distinct lawsuits,
Defendants believe that the IRAP and Zakzok plaintiffs lack standing for the reasons previously
discussed. See, e.g., Defs.’ Opp. to Prelim. Inj. Mot. (IRAP ECF No. 212) at 16-18.
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I.

Plaintiffs’ Statutory Claims Should Be Dismissed
A.

The Proclamation Is Well Within the President’s Authority Under the INA

The IRAP plaintiffs claim that the Proclamation exceeds the President’s authority under 8
U.S.C. § 1182(f) and violates the non-discrimination provision contained in 8 U.S.C.
§ 1152(a)(1)(A). See IRAP 2d Am. Compl. (ECF No. 203) ¶¶ 392-401. But the Supreme Court
unequivocally rejected these very same claims, see Hawaii, 138 S. Ct. at 2407-15, and there was
nothing tentative about the Court’s conclusion: “The Proclamation is squarely within the scope of
Presidential authority under the INA.” Id. at 2415. Thus, these claims should plainly be dismissed.
B.

Plaintiffs Cannot Obtain Review of the Proclamation Under the APA

Plaintiffs also bring claims under the APA, alleging both substantive and procedural
violations—i.e., that the Proclamation is contrary to law, is arbitrary and capricious, and was issued
without following the requisite procedures. See IRAP 2d Am. Compl. (ECF No. 203) ¶¶ 413-16;
IAAB 2d Am. Compl. (ECF No. 78) ¶¶ 118-21; Zakzok Am. Compl. (ECF No. 62) ¶¶ 104-14.
1. These claims all must fail because the APA does not permit review over the President’s
actions in issuing the Proclamation. The APA provides for judicial review only with respect to
“agency action.” 5 U.S.C. §§ 702, 704. The President, however, is not an “agency” within the
meaning of the APA, and thus his actions are not reviewable under that statute. See Franklin v.
Massachusetts, 505 U.S. 788, 801 (1992) (“As the APA does not expressly allow review of the
President’s actions, we must presume that his actions are not subject to its requirements.”).
Nor can plaintiffs circumvent this bar by purporting to sue only the agencies tasked with
implementing the Proclamation but not the President himself. See, e.g., IAAB 2d Am. Compl.
(ECF No. 78) ¶¶ 117-21; Zakzok Am. Compl. (ECF No. 62) ¶¶ 110-14. That is because the “bar
on APA review of actions by the President extend[s] to the actions of agencies when they act under
a delegation of presidential authority[.]” Ancient Coin Collectors Guild v. U.S. Customs & Border
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Prot., 801 F. Supp. 2d 383, 402 (D. Md. 2011), aff’d, 698 F.3d 171 (4th Cir. 2012). Indeed, as the
Court in Ancient Coin Collectors Guild recognized, this rule is in “full force” when an agency is
acting on behalf of the President in “an area as sensitive and complex as foreign affairs.” 801 F.
Supp. 2d at 403. Here, that is exactly what the relevant agencies are doing—carrying out the
Proclamation based on a delegation of authority from the President, based in part on the President’s
authority over foreign affairs. Thus, the agencies’ actions implementing the Proclamation remain
outside the scope of APA review.
2. Even aside from Presidential action being unreviewable under the APA, plaintiffs’
claims also fail to meet other pre-requisites for an APA claim. First, courts cannot review “agency
action [that] is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). That limitation on
review applies when the relevant statute “is drawn so that a court would have no meaningful
standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S.
821, 830 (1985). Here, there is no meaningful standard against which a court could evaluate the
President’s, or the agencies’, decisions in connection with § 1182(f). See Hawaii, 138 S. Ct.
at 2408 (“By its terms, § 1182(f) exudes deference to the President in every clause.”); Haitian
Refugee Ctr., Inc. v. Baker, 789 F. Supp. 1552, 1575-76 (S.D. Fla. 1991) (holding that § 1182(f)
“provides no discernable standards by which this court can review the challenged actions under
the APA”); cf. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999) (even if
the Executive “disclose[d] its . . . reasons for deeming nationals of a particular country a special
threat,” courts would be “unable to assess their adequacy”).
Second, plaintiffs have not directed their APA claim against any final agency action.
Plaintiffs allege that the defendant agencies have violated the APA “[i]n instituting the
Proclamation,” IAAB 2d Am. Compl. (ECF No. 78) ¶ 120, and “[i]n issuing and implementing the

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Proclamation,” Zakzok Am. Compl. (ECF No. 62) ¶ 106. But the agencies’ general and ongoing
implementation of the Proclamation is not a discrete, identifiable “agency action” subject to
challenge. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 890-91 (1990) (holding that a plaintiff
cannot challenge “the continuing (and thus constantly changing) operations” of the agency over a
broad range of subjects, but must instead “direct its attack against some particular ‘agency action’
that causes it harm”). Additionally, the agencies’ actions preceding the Proclamation—e.g., the
drafting and submission of a report to the President, see IAAB 2d Am. Compl. (ECF No. 78)
¶ 120—were not final agency actions because the report itself “carrie[d] no direct consequences”
and instead “serve[d] more like a tentative recommendation than a final and binding
determination.” Franklin, 505 U.S. at 798; see also Dalton v. Specter, 511 U.S. 462, 468-70
(1994).
Third, the APA’s “general cause of action” exists only for “persons ‘adversely affected or
aggrieved by agency action within the meaning of a relevant statute.’ ” Block v. Cmty. Nutrition
Inst., 467 U.S. 340, 345 (1984) (quoting 5 U.S.C. § 702). Although the alleged injury of family
separation is sufficient for Article III purposes, see note 3, supra, it is a separate question on the
merits whether the plaintiffs actually have any statutory rights to enforce. And here, the plaintiffs
lack any enforceable statutory rights: nothing in the INA confers rights on third-parties like
plaintiffs—i.e., U.S. organizations or persons who are not themselves seeking entry to the United
States, but instead have an interest in the entry of an alien who is abroad.4 Accordingly, plaintiffs
cannot satisfy these other threshold requirements for an APA claim.

4

Even when the INA permits a U.S. citizen to file a petition for a foreign family member’s
classification as a relative for immigrant status, any interest the U.S. person has “terminate[s]”
“[w]hen [his] petition [i]s granted.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1164 (D.C. Cir.
1999). Nothing in the INA authorizes a sponsoring citizen to challenge the later denial of a visa
to his relative.
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3. Finally, even if plaintiffs could obtain APA review, their claims would fail on the merits.
Their assertions that the Proclamation is “contrary to law” are duplicative of their other legal
claims, which fail for the reasons discussed both above and below.
As for plaintiffs’ claim that the Proclamation is arbitrary and capricious, such a claim is
foreclosed by the Supreme Court’s recognition that “[t]he 12-page Proclamation . . . thoroughly
describes the process, agency evaluations, and recommendations underlying the President’s chosen
restrictions[.]” Hawaii, 138 S. Ct. at 2409; see also id. at 2421 (describing the “persuasive
evidence that the entry suspension has a legitimate grounding in national security concerns”);
Part II.A, infra. Although much of the Supreme Court’s analysis was in the context of rationalbasis review, the same fundamental principles apply equally under the APA: courts “cannot
substitute [their] own assessment for the Executive’s predictive judgments on such [national
security] matters, all of which are delicate, complex, and involve large elements of prophecy.”
Hawaii, 138 S. Ct. at 2421.
Finally, there is no requirement for the President (or any agency) to engage in notice-andcomment rulemaking when the President exercises his statutory authority under 8 U.S.C.
§ 1182(f). As mentioned, the President is not an “agency” subject to the APA. See Franklin, 505
U.S. at 801. Moreover, the APA itself states that its rulemaking requirements apply “except to the
extent that there is involved . . . [a] foreign affairs function of the United States.” 5 U.S.C.
§ 553(a)(1). Here, the Proclamation is expressly crafted to be an instrument of the President’s
foreign policy. See, e.g., Procl. § 1(h)(i) (“These restrictions and limitations are also needed to
elicit improved identity-management and information-sharing protocols and practices from
foreign governments; and to advance foreign policy, national security, and counterterrorism
objectives.”); Hawaii, 138 S. Ct. at 2411 (“One of the key objectives of the Proclamation is to

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encourage foreign governments to improve their practices[.]”); see also Rajah v. Mukasey, 544
F.3d 427, 437 (2d Cir. 2008). Even if plaintiffs could pursue their APA claims, therefore, the claims
should still be dismissed on the merits.
C.

The Refugee Act Claims are Both Moot and Meritless

The IRAP plaintiffs allege a claim under the Refugee Act, arguing that EO-2’s actions with
respect to refugees were unlawful, and that the Proclamation “could similarly ban the entry of
refugees from the affected countries.” IRAP 2d Am. Compl. (ECF No. 203) ¶ 410. As an initial
matter, because EO-2 has now expired, any claims regarding EO-2 are now moot—as the Supreme
Court has confirmed. See Trump v. IRAP, 138 S. Ct. 353 (2017) (directing that challenges to EO-2
be “dismiss[ed] as moot” because EO-2 “expired by its own terms on September 24, 2017”).
As for the sole allegation regarding the Proclamation—that it “could similarly ban the entry
of refugees,” IRAP 2d Am. Compl. (ECF No. 203) ¶ 410 (emphasis added)—that allegation is
plainly contradicted by the Proclamation itself, which has nothing to do with refugees. Indeed, the
Proclamation addresses refugees only to make clear that they are not affected by it. See Procl.
§ 6(e) (“Nothing in this proclamation shall be construed to limit the ability of an individual to seek
asylum, refugee status, withholding of removal, or protection under the Convention Against
Torture, consistent with the laws of the United States.”); see also id. § 3(b)(vi).5 Thus, plaintiffs
have alleged no plausible refugee-related claims.6

5

The subject of refugee admissions was subsequently addressed in an entirely separate
Executive Order, which none of the plaintiffs here has challenged. See Exec. Order No. 13,815,
Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities, 82
Fed. Reg. 50,055 (Oct. 27, 2017).
6

Any refugee-related claims would also fail because the Refugee Act contains no private
right of action. See, e.g., Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1506 (11th Cir. 1992);
Alabama v. United States, 198 F. Supp. 3d 1263, 1268-73 (N.D. Ala. 2016); Texas Health & Human
Servs. Comm’n v. United States, 193 F. Supp. 3d 733, 739 (N.D. Tex. 2016). And the Refugee Act
is similarly not enforceable under the APA for the reasons discussed above. See Part I.B, supra.
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D.

Plaintiffs Have Not Stated a Plausible Claim Under RFRA

The IRAP plaintiffs also claim that the Proclamation violates RFRA with respect to certain
unspecified “Muslim Plaintiffs.” IRAP 2d Am. Compl. (ECF No. 203) ¶ 403. But their complaint
contains nothing more than a “[t]hreadbare recital[] of the elements of a [RFRA] cause of action.”
Iqbal, 556 U.S. at 678. Such conclusory assertions “do not suffice” to state a claim under
Rule 12(b)(6), id., and thus, the IRAP plaintiffs’ RFRA claim should also be dismissed.
RFRA provides that the federal government “shall not substantially burden a person’s
exercise of religion” unless “it demonstrates that application of the burden to the person” is the
least restrictive means of furthering a compelling governmental interest. 42 U.S.C. § 2000bb-1.
To establish a prima facie RFRA claim, a plaintiff must allege (1) an exercise of religion, (2) that
is grounded in a sincerely held religious belief, and (3) that is substantially burdened by the
challenged government action. See Holt v. Hobbs, 135 S. Ct. 853, 862 (2015); Liberty Univ., Inc.
v. Lew, 733 F.3d 72, 99 (4th Cir. 2013); Goodall by Goodall v. Stafford Cty. Sch. Bd., 60 F.3d 168,
171-73 (4th Cir. 1995). A substantial burden exists when government action puts “substantial
pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas v. Review Bd.
of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981). Thus, for example, a plaintiff may establish a
substantial burden by showing that a law “forces [him] to engage in conduct that [his] religion
forbids or that it prevents [him] from engaging in conduct [his] religion requires.” Henderson v.
Kennedy, 253 F.3d 12, 16 (D.C. Cir. 2001). “[I]ncidental effects of government programs, which
may make it more difficult to practice certain religions but which have no tendency to coerce
individuals into acting contrary to their religious beliefs,” do not constitute substantial burdens on
the exercise of religion. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450-51
(1988).
Plaintiffs have not sufficiently alleged any of the elements of a prima facie RFRA claim.
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The IRAP complaint asserts that the Proclamation “place[s] a substantial burden on Muslims’
exercise of religion” by “denying or impeding [them], on account of their religion, from accessing
benefits relating to their own or their family members’ immigration status.” IRAP 2d Am. Compl.
(ECF No. 203) ¶¶ 403-04. “While legal conclusions” such as this “can provide the framework of
a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. And here,
they are not. The IRAP complaint does not identify any particular plaintiff whose religious
exercise purportedly has been substantially burdened by the Proclamation. Nor does it identify
any particular exercise of religion, much less allege that any such exercise is grounded in a
particular plaintiff’s sincerely held religious belief. Nor have plaintiffs shown that any burden on
religious exercise (and none is sufficiently alleged) could not be addressed through the case-bycase waiver process provided for in the Proclamation.
Indeed, the IRAP complaint identifies only two plaintiffs who practice the Muslim faith.
See IRAP 2d Am. Compl. (ECF No. 203) ¶¶ 41, 44. For the remaining plaintiffs, the complaint is
either silent or specifies that plaintiffs are non-practicing Muslims. See, e.g., id. ¶¶ 35, 37, 43, 45.
And the two plaintiffs who practice Islam are either U.S. citizens or lawful permanent residents,
to whom the Proclamation does not apply. See id. ¶¶ 41, 44. Thus, the Proclamation could not
directly impose a substantial burden on these plaintiffs’ religious exercise. Furthermore, plaintiffs
cannot bring a RFRA claim on behalf of any family members that may be seeking to enter the
United States from abroad, see, e.g., id. ¶¶ 41, 44, 332, given that “aliens . . . located outside
sovereign United States territory at the time their alleged RFRA claim arose” are not “person[s]”
within the meaning of RFRA. Rasul v. Myers, 512 F.3d 644, 672 (D.C. Cir.), cert. granted,
judgment vacated on other grounds, 555 U.S. 1083 (2008).
In short, the IRAP complaint’s “naked assertions devoid of further factual enhancement”—

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which amount to no more than an allegation that the Proclamation might violate the RFRA rights
of someone, somewhere, somehow, at some point—cannot sustain a RFRA claim. Iqbal, 556 U.S.
at 678. And, even if plaintiffs could meet their burden of alleging a prima facie RFRA claim, the
Proclamation is the least restrictive means of furthering the government’s compelling nationalsecurity interests, for the same reasons that the Supreme Court identified when upholding the
Proclamation. See Part II.A, infra.7
E.

All of Plaintiffs’ Statutory Claims are Foreclosed by Fundamental Principles
of Non-Reviewability

As the Government has previously explained, the Executive Branch’s denial of entry to an
alien is generally not subject to challenge on statutory grounds unless Congress has affirmatively
authorized such review. See, e.g., Defs.’ Opp. to Prelim. Inj. Mot. (IRAP ECF No. 212) at 9-12.
This Court need not address this reviewability argument to the extent it dismisses plaintiffs’
statutory claims on the merits. See Hawaii, 138 S. Ct. at 2407 (citing Sale v. Haitian Ctrs. Council,
Inc., 509 U.S. 155 (1993)). If the Court is inclined to allow plaintiffs’ statutory claims to proceed,
however, then the Court must consider whether the claims are even reviewable in the first place.
In Hawaii, the Supreme Court described this non-reviewability argument as “present[ing]
a difficult question.” 138 S. Ct. at 2407. The Government maintains that this argument is wellsupported by longstanding principles of sovereignty, as well as the history and structure of the
INA. See, e.g., Knauff, 338 U.S. at 543 (“Whatever the rule may be concerning deportation of

7

Plaintiffs’ RFRA claim also would not provide a basis for enjoining the Proclamation as
a whole, as Plaintiffs request. See IRAP 2d Am. Compl., Prayer for Relief. Instead, any relief
would be limited to removing the specific burden on religious exercise of the individual plaintiff
(or plaintiffs) that is found to prevail on his or her RFRA claim. See 42 U.S.C. § 2000bb–1(c) (“A
person whose religious exercise has been burdened in violation of this section may . . . obtain
appropriate relief against a government.” (emphasis added)); Borzych v. Frank, 439 F.3d 388, 391
(7th Cir. 2006); State of Neb. Dep’t of Health & Human Servs. v. Dep’t of Health & Human Servs.,
435 F.3d 326, 330 (D.C. Cir. 2006).
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persons who have gained entry into the United States, it is not 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.”); 8 U.S.C. § 1252 (establishing a comprehensive framework
for judicial review of decisions concerning aliens’ ability to enter or remain in the United States,
but not providing any review for the denial of a visa or entry to an alien located abroad, either by
that alien or by third-parties interested in the alien’s admission); 6 U.S.C. § 236(f) (no “private
right of action” to challenge decision “to grant or deny a visa”).
Plaintiffs’ response is largely to suggest that these non-reviewability principles “only
appl[y] to individual visa denials by consular officials abroad.” Pls.’ Reply Mem. in Supp. of
Prelim. Inj. (IRAP ECF No. 216) at 11. But this argument ignores that these principles of nonreviewability are grounded in the separation of powers, see Saavedra Bruno, 197 F.3d at 1159, and
it would be just as intrusive—if not more so—for a court to overturn the President’s broad policy
judgments as it would be for a court to overturn an individual consular officer’s decision with
respect to a single alien. See Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (stating that
“any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in
regard to the conduct of foreign relations, the war power, and the maintenance of a republican form
of government,” which are matters “so exclusively entrusted to the political branches of
government as to be largely immune from judicial inquiry or interference” (emphasis added)); see
also Am.-Arab Anti-Discrimination Comm., 525 U.S. at 491 (recognizing limitations on courts’
abilities to evaluate the Executive’s policy judgments regarding nationals of foreign countries).
Indeed, the particular claims that plaintiffs bring here underscore why the principles of
non-reviewability still apply. All three sets of plaintiffs seek to bring APA claims. See Part I.B,
supra. But in the one instance in which the Supreme Court held that aliens physically present in

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the United States could seek review of their exclusion orders under the APA, the Court made clear
it was not “suggest[ing]” that “an alien who has never presented himself at the borders of this
country may avail himself of the declaratory judgment action by bringing the action from abroad.”
Brownell v. Tom We Shung, 352 U.S. 180, 184-186 & n.3 (1956). And following that decision,
Congress then intervened to foreclose APA review even for aliens present here, see Saavedra
Bruno, 197 F.3d at 1157-1162, because allowing such APA suits would “give recognition to a
fallacious doctrine that an alien has a ‘right’ to enter this country which he may litigate in the courts
of the United States against the U.S. Government as a defendant.” H.R. Rep. No. 87-1086, at 33
(1961). Allowing plaintiffs’ broad-ranging APA claims here would be particularly inappropriate
in light of this history demonstrating Congress’s intent to foreclose and reject such claims.
Additionally, Plaintiffs’ RFRA claims are inherently individualized, focusing on each
plaintiff’s own religious beliefs and circumstances. See Part I.D & n.7, supra. Thus, review of
those claims would presumably require a fact-based inquiry into each plaintiff’s circumstances,
including into the particular reasons why each plaintiff’s relative was denied a visa and/or waiver
under the Proclamation and whether those reasons are “in furtherance of a compelling
governmental interest[.]” IRAP 2d Am. Compl. (ECF No. 203) ¶ 405. Even under plaintiffs’
version of consular non-reviewability, therefore, plaintiffs’ RFRA claims should be held nonreviewable.
Finally, the relief that plaintiffs seek in these cases further highlights why their broad claims
should be held non-reviewable. For example, in addition to an injunction against enforcement of
the Proclamation, the IAAB plaintiffs also request that the Court: “[r]equire Defendants to instruct
the consular officials handling the visa applications of Plaintiffs, their families, and IAAB’s
invitees and others attending IAAB programs to print and issue the visas and travel documents

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within 10 days of the Court’s order;” “[r]equire Defendants to process without undue delay visa
applications submitted by nationals of Iran, Libya, Syria, Yemen, and Somalia;” and “[r]equire
Defendants to file with the Court, on the tenth day of each month following the entry of the Court’s
order, a signed and verified declaration” containing extensive details about the number of visas
approved and denied, as well as the “the facts, authorities, and reasoning relevant to” each visa
denial.

IAAB 2d Am. Compl. (ECF No. 78) ¶¶ 132, 134, 135.

As this requested relief

demonstrates, judicial resolution of plaintiffs’ broad claims—and providing relief on those claims
if successful—would still implicate the same separation of powers concerns that preclude judicial
review over individualized claims. Even were the Court to enter a generalized order prohibiting
enforcement of the Proclamation, it would still threaten to “inject[] the judge into day-to-day
agency management,” Norton v. S. Utah Wilderness All., 542 U.S. 55, 66-67 (2004), overseeing
individualized visa decisions and overall visa processing, contrary to the bedrock principles of
consular non-reviewability.

Thus, review over the generalized claim should likewise be

unavailable.8
In short, all of plaintiffs’ statutory claims should be dismissed: each one is legally
meritless, and judicial review over the claims is precluded in any event. Thus, the Court should
dismiss all of the statutory claims in the three complaints.
II.

Plaintiffs’ Constitutional Claims Should Be Dismissed
Plaintiffs raise a number of constitutional challenges to the Proclamation. They claim it

singles out Muslims for disfavored treatment in violation of the Establishment Clause;

8

All three sets of plaintiffs have also made clear their intent to seek intrusive discovery if
allowed to continue with their claims. See Defs.’ Mot. to Stay (IAAB ECF No. 63-1) at 14-21;
Defs.’ Reply on Mot. to Stay (IAAB ECF No. 66) at 18-28. Plaintiffs’ intent to conduct intrusive
discovery is still further proof that even generalized legal claims can implicate the separation of
powers principles underlying the doctrine of consular nonreviewability.
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discriminates on the basis of religion, national origin, and race in violation of the equal protection
component of the Fifth Amendment’s Due Process Clause; restricts plaintiffs’ rights to receive
information and free association under the First Amendment; and deprives plaintiffs of their
purported liberty interest in family reunification without due process of law. See IRAP 2d Am.
Compl. (ECF No. 203) ¶¶ 376-90 (Counts I-III); IAAB 2d Am. Compl. (ECF No. 78) ¶¶ 92-103,
111-16, 122-25 (Counts I-IV, VI); Zakzok Am. Compl. (ECF No. 62) ¶¶ 98-102 (Count I).
All of these claims are foreclosed by the Supreme Court’s decision in Trump v. Hawaii,
which made clear that all constitutional challenges to the Proclamation are governed by the
standard set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972), and that the Proclamation satisfies
Mandel’s standard. See Hawaii, 138 S. Ct. at 2417-23. Moreover, although this Court need not
reach any other arguments in light of Hawaii’s binding force, several of plaintiffs’ constitutional
claims fail for additional reasons as well. Plaintiffs’ constitutional claims should thus be dismissed
for failure to state a claim.
A.

Plaintiffs’ Constitutional Claims are Foreclosed by the Supreme Court’s
Decision in Trump v. Hawaii

Although the only constitutional challenge at issue in Hawaii was an Establishment Clause
claim, the Supreme Court made clear that the same standard of review governs all challenges to
the Proclamation brought by U.S. citizens claiming a violation of their constitutional rights. No
matter what constitutional right is at issue, courts must apply the deferential standard of review set
forth in Mandel. See Hawaii, 138 S. Ct. at 2419 (noting that the Supreme Court has “reaffirmed
and applied [Mandel’s] deferential standard of review across different contexts and constitutional
claims”); id. at 2420 n.5 (stating that Mandel’s “circumscribed inquiry applies to any constitutional
claim concerning the entry of foreign nationals”). Indeed, the Supreme Court has applied Mandel
to resolve challenges brought under each of the constitutional provisions that plaintiffs raise here.

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See id. at 2417-23 (Establishment Clause claim); Fiallo v. Bell, 430 U.S. 787, 792-96 (1977) (equal
protection claim); Kerry v. Din, 135 S. Ct. 2128, 2141 (2015) (Kennedy, J., concurring in
judgment) (due process claim), as modified by Hawaii, 138 S. Ct. at 2419; Mandel, 408 U.S. at
764-65 (First Amendment claim); see also Rajah, 544 F.3d at 438 (claims alleging discrimination
based on “religion, ethnicity, gender, and race”). This Court thus does not need to engage in an
individualized assessment of each of plaintiffs’ constitutional claims. Instead, the Court need only
ask one question: does the Proclamation satisfy Mandel’s deferential standard of review?
The Supreme Court has already answered that question in the affirmative. In Hawaii, the
Court held that the Proclamation satisfies not only Mandel’s “conventional application,” but also
“rational basis review.” Hawaii, 138 S. Ct. at 2420. Rejecting each of the arguments plaintiffs
assert here, the Court concluded that “there is persuasive evidence that the entry suspension has a
legitimate grounding in national security concerns, quite apart from any religious hostility,” and
therefore the Court “must accept that independent justification.” Id. at 2421. Thus, the Court held
that “plaintiffs have not demonstrated a likelihood of success on the merits of their constitutional
claim.” Id. at 2423.
As a formal matter, of course, the Court’s holding was limited to the preliminary-injunction
context because that was the judgment before the Court at that time. See id. at 2406-07. The
reasoning of the Court’s decision, however, forecloses plaintiffs’ claims even outside the
preliminary-injunction context.

The Court considered numerous statements allegedly

demonstrating the President’s discriminatory intent, see id. at 2417-18, but then held that courts
“must consider not only the statements of a particular President, but also the authority of the
Presidency itself.” Id. at 2418. The Court then went on to examine numerous aspects of the
Proclamation—the same aspects that plaintiffs attack here—and explained why the Proclamation

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was lawful. Nothing about the Court’s legal reasoning was tentative, and none of the relevant
features of the Proclamation has changed since the Supreme Court issued its decision. Thus, the
same features of the Proclamation that the Supreme Court found were dispositive should also be
dispositive here.
First, the Court explained that “[t]he Proclamation is expressly premised on legitimate
purposes: preventing entry of nationals who cannot be adequately vetted and inducing other
nations to improve their practices.” Id. at 2421. The Court noted that the text of the Proclamation
“says nothing about religion.” Id. And, although the plaintiffs in Hawaii, like plaintiffs here,
argued that most of the nations included in the Proclamation have Muslim-majority populations,
the Court determined that this fact did “not support an inference of religious hostility, given that
the policy covers just 8% of the world’s Muslim population and is limited to countries that were
previously designated by Congress or prior administrations as posing national security risks.” Id.
Second, the Court explained that the Proclamation “reflects the results of a worldwide
review process undertaken by multiple Cabinet officials and their agencies.” Id. The Court
rejected the Hawaii plaintiffs’ attempts to discredit the findings of this review (an attempt plaintiffs
mimic here) by noting that the Proclamation adequately explains any deviations from the
worldwide review’s baseline criteria by specifying how, in each case, the deviations “were justified
by the distinct conditions in each country.” Id. The Court also dismissed any efforts to challenge
the Proclamation based on the plaintiffs’ “perception of its effectiveness and wisdom.” Id. It is
not appropriate, the Court explained, for courts to “substitute [their] own assessment for the
Executive’s predictive judgments on such matters, all of which ‘are delicate, complex, and involve

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large elements of prophecy.’” Id.9
Finally, the Court identified several additional features of the Proclamation supporting its
connection to a legitimate national security interest. See id. at 2420, 2422-23. The Proclamation
“establishes an ongoing process to engage covered nations and assess every 180 days whether the
entry restrictions should be terminated,” and one Muslim-majority country (Chad) has already had
its entry suspensions terminated. Id. at 2422. Moreover, even for countries that remain subject to
entry restrictions, the Proclamation “includes significant exceptions for various categories of
foreign nationals.” Id. And the Proclamation also “creates a waiver program” to permit entry of
foreign nationals meeting specified criteria. Id. Like plaintiffs here, the Hawaii plaintiffs asserted
that “not enough individuals [were] receiving waivers or exemptions.” Id. at 2423 n.7. The Court
explained, however, that these allegations, even if they could be considered under rational basis
review, did “not affect” the Court’s conclusion that the Proclamation satisfies rational basis review.
Id.
Plaintiffs’ constitutional claims cannot survive in light of the Supreme Court’s prior
analysis upholding the Proclamation’s validity. The Court’s analysis was thorough and none of
the relevant features of the Proclamation has changed since the Court’s decision. In short,
plaintiffs’ complaints here offer nothing more than a rehashing of the same claims and arguments
the Supreme Court already rejected in Hawaii. Because the Supreme Court has already held that

9

Plaintiffs here seek to attack the Proclamation’s wisdom based on the fact that the DHS
report preceding it “was a mere 17-pages long[.]” IAAB 2d Am. Compl. (ECF No. 78) ¶ 69. But
neither of the DHS reports was required to contain a detailed discussion of every country’s
individual practices; the President directed that the reports focus on the countries that were not
providing adequate information. See EO-2 § 2(b), (e). And in any event, the Supreme Court made
clear that it would not second-guess the Proclamation based on the length of the Secretary’s
report—“a simple page count offers little insight into the actual substance of the final report, much
less predecisional materials underlying it.” Hawaii, 138 S. Ct. at 2421.
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the Proclamation exhibits “a sufficient national security justification to survive rational basis
review,” id. at 2423, plaintiffs’ constitutional claims should be dismissed pursuant to binding
precedent.
B.

Plaintiffs’ Constitutional Claims Also Fail for Additional Reasons

In addition to being foreclosed by Hawaii, several of plaintiffs’ constitutional claims also
fail for the additional threshold reasons set forth below.
1. Plaintiffs cannot state a due process claim because the Due Process Clause does not
confer an entitlement on persons in the United States regarding the entry of others. To assert a due
process claim, a plaintiff must first show that he has been deprived of a liberty or property interest.
See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam). But plaintiffs do not have a
cognizable liberty or property interest in having their foreign national family members be issued a
visa or be admitted into this country. See, e.g., Din, 135 S. Ct. at 2135 (plurality op.) (“[A] long
practice of regulating spousal immigration precludes Din’s claim that the denial of [her husband’s]
visa application has deprived her of a fundamental liberty interest.”); Fiallo, 430 U.S. at 795 n.6
(rejecting the premise that “the families of putative immigrants . . . have an interest in their
admission”); cf. Swartz v. Rogers, 254 F.2d 338, 339 (D.C. Cir. 1958) (“[W]e think the wife has
no constitutional right which is violated by the deportation of her husband.”). Because the
Proclamation does not deprive plaintiffs of any liberty or property interest, their due process claim
fails at the outset.
Moreover, with respect to the only plaintiff whose relative has been denied both a visa and
a waiver under the Proclamation—i.e., John Doe #6’s mother-in-law, see note 3, supra—the
Government explained the mother-in-law’s visa denial with reference to a statutory citation. See
IAAB 2d Am. Compl. (ECF No. 78) ¶ 16 (noting that the mother-in-law received a letter stating
that a “consular official found [her] ineligible for a visa under Section 212(f) of Immigration and
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Nationality Act, pursuant to Presidential Proclamation 9645”). Even if John Doe #6 (or his
mother-in-law) had a protected liberty interest, therefore, that statutory citation was sufficient to
satisfy due process. See Hawaii, 138 S. Ct. at 2419 (“In Din, Justice Kennedy reiterated that
‘respect for the political branches’ broad power over the creation and administration of the
immigration system’ meant that the Government need provide only a statutory citation to explain
a visa denial.”).
2. Plaintiffs also cannot state a claim under the Establishment Clause or the Equal
Protection Clause because they have not alleged a violation of their own rights under those
provisions. The exclusion of aliens abroad typically raises no constitutional questions because “an
alien who seeks admission to this country may not do so under any claim of right.” Knauff, 338
U.S. at 542. As explained above, courts may engage in limited judicial review of the exclusion of
an alien abroad under Mandel, but only when a U.S. citizen alleges that the exclusion violates the
citizen’s own constitutional rights. See Mandel, 408 U.S. at 756-759, 762-770; see also Din, 135
S. Ct. at 2131. But here, plaintiffs’ claims stem from alleged infringement of the rights of plaintiffs’
family members, not plaintiffs’ own rights. Thus, plaintiffs’ claims cannot proceed. Cf. Hawaii,
138 S. Ct. at 2416 (declining to decide this issue because the argument goes to “the scope of
plaintiffs’ Establishment Clause rights,” which “concerns the merits . . . of plaintiffs’ claims”).
In McGowan v. Maryland, 366 U.S. 420 (1961), the Supreme Court held that individuals
who are indirectly injured by alleged religious discrimination against others generally may not sue,
because they have not suffered violations of their own constitutional rights to religious freedom.
Id. at 429-30. The McGowan Court concluded that the plaintiffs—employees of a store subject to
a State’s Sunday-closing law—could not challenge that law on free exercise grounds because they
“d[id] not allege any infringement of their own religious freedoms.” 366 U.S. at 429. By contrast,

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the plaintiffs could pursue their Establishment Clause claim, because they alleged a “direct . . .
injury, allegedly due to the imposition on them of the tenets of the Christian religion”: namely,
they had been prosecuted under the Sunday-closing law. Id. at 430-431; see id. at 422.
Similarly, the Supreme Court has made clear in the context of both equal protection and
Establishment Clause claims that “the stigmatizing injury often caused by racial [or other
invidious] discrimination . . . accords a basis for standing only to ‘those persons who are personally
denied equal treatment’ by the challenged discriminatory conduct.” Allen v. Wright, 468 U.S. 737,
755 (1984); see Valley Forge Christian Coll. v. Ams. United for Separation of Church & State,
Inc., 454 U.S. 464, 485-486 (1982) (“the psychological consequence presumably produced by
observation of conduct with which one disagrees” is not the type of “personal injury” that supports
standing, “even though the disagreement is phrased in [Establishment Clause] terms”). Although
these cases talk in terms of prudential standing, the Supreme Court has since made clear that the
principle announced in the cases goes to the merits of a plaintiff’s claims. See Lexmark Int’l, Inc.
v. Static Control Components, Inc., 572 U.S. 118, 125 (2014); see also Hawaii, 138 S. Ct. at 2416.
Here, the Proclamation does not regulate plaintiffs at all; it applies only to aliens abroad.
Plaintiffs can therefore only claim that the Proclamation violates the Establishment Clause and the
Equal Protection Clause because it discriminates against their foreign national relatives and clients.
But U.S. plaintiffs cannot assert derivative Establishment Clause or equal protection claims
predicated on indirect effects of alleged discrimination against aliens who themselves have no
rights to assert. Put another way, the Proclamation cannot plausibly be said to discriminate against
plaintiffs or any other U.S. citizens or residents on the basis of religion, national origin, or race
because plaintiffs are not subject to the Proclamation and their religion, national original, and race
are irrelevant to its operation. And plaintiffs’ foreign relatives and associates have no rights to

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claim under the Establishment or Equal Protection Clauses. See Hawaii, 138 S. Ct. at 2419 (noting
that “foreign nationals seeking admission have no constitutional right to entry”). Accordingly,
plaintiffs’ Establishment Clause and equal protection claims should be dismissed for this predicate
reason as well.
CONCLUSION
Because the Supreme Court’s decision in Trump v. Hawaii forecloses all of plaintiffs’
statutory and constitutional claims, this Court should dismiss the complaints in all three cases for
failure to state a claim upon which relief can be granted.
Dated: November 7, 2018

Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
ROBERT K. HUR
United States Attorney
JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Daniel Schwei
DANIEL SCHWEI (Bar No. 96100)
MICHELLE R. BENNETT (Bar No. 806456)
Senior Trial Counsel
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L St. NW
Washington DC 20005
Tel: (202) 305-8693
Fax: (202) 616-8460
E-mail: daniel.s.schwei@usdoj.gov

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