Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 1 of 20 PageID #: 1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI,
on behalf of themselves and others similarly situated,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and JAMES T. MADDEN, New York Field Director, CBP,
Respondents.

Case No. _____________________ Date: January 28, 2017

PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 2 of 20 PageID #: 2
INTRODUCTION Petitioners Hameed Khalid Darweesh, an Iraqi husband and father of three, and Haider Sameer Abdulkhaleq Alshawi,1 an Iraqi husband and father, landed at John F. Kennedy International Airport (“JFK Airport”) on the evening of January 27, 2017. Petitioner Darweesh was granted a Special Immigrant Visa (“SIV”) on January 20, 2017 as a result of his service to the United States as an interpreter, engineer and contractor. Petitioner Alshawi was granted a Follow to Join Visa on January 11, 2017 to rejoin his wife and son, who were granted refugee status due to their family’s association with the United States military. After conducting standard procedures of administrative processing and security checks, the federal government has deemed both Petitioners not to pose threats to the United States. Despite these findings and Petitioners’ valid entry documents, U.S. Customs and Border Protection (“CBP”) blocked both Petitioners from exiting JFK Airport and detained Petitioners therein. No magistrate has determined that there is sufficient justification for the continued detention of either Petitioner. Instead, CBP is holding Petitioners at JFK Airport solely pursuant to an executive order issued on January 27, 2017. Because the executive order is unlawful as applied to Petitioners, their continued detention based solely on the executive order violates their Fifth Amendment procedural and substantive due process rights, and is ultra vires the immigration statutes. Further, Petitioners’ continued unlawful detention is part of a widespread pattern applied to many refugees and arriving aliens detained after the issuance of the January 27, 2017 executive order. Therefore, on behalf of themselves and
1 There are multiple English spellings of Mr. Alshawi’s name. 2

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 3 of 20 PageID #: 3
all others similarly situated, Petitioners respectfully apply to this Court for a writ of habeas corpus to remedy their unlawful detention by Respondents, and for declaratory and injunctive relief to prevent such harms from recurring.
JURISDICTION AND VENUE 1. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1361, 2241, 2243, and the Habeas Corpus Suspension Clause of the U.S. Constitution. This court has further remedial authority pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. 2. Venue properly lies within the Eastern District of New York because a substantial part of the events or omissions giving rise to this action occurred in the District. 28 U.S.C. § 1391(b). 3. No petition for habeas corpus has previously been filed in any court to review either of Petitioners’ cases.
PARTIES 4. Hameed Khalid Darweesh, named Petitioner, is a citizen of Iraq and recipient of an Iraqi Special Immigrant Visa (SIV). As an interpreter, electrical engineer and contractor, Mr. Darweesh performed valuable work on behalf of the U.S. government in Iraq from roughly 2003 to 2013. Despite being issued a valid visa on January 20, 2017 to relocate to the United States, Mr. Darweesh is presently detained at JFK Airport. As of the filing of this complaint, the sole basis for Defendants’ continued custody of Mr. Darweesh is the January 27, 2017 executive order issued by President Donald J. Trump.
3

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 4 of 20 PageID #: 4
5. Haider Sameer Abdulkhaleq Alshawi, named Petitioner, is a citizen of Iraq and recipient of a Follow to Join (FTJ) Visa. His wife and child are lawful permanent residents residing in Houston, Texas. Despite being issued valid travel documentation on January 11, 2017, to relocate to the United States, Mr. Alshawi is presently detained at JFK Airport. As of the filing of this complaint, the sole basis for Defendants’ continued custody of Mr. Alshawi is the January 27, 2017 executive order issued by President Donald J. Trump.
6. The U.S. Department of Homeland Security (“DHS”) is a cabinet department of the United States federal government with the primary mission of securing the United States.
7. U.S. Customs and Border Protection (“CBP”) is an agency within DHS with the primary mission of detecting and preventing the unlawful entry of persons and goods into the United States.
8. Respondent John Kelly is the Secretary of DHS. Secretary Kelly has immediate custody of Petitioners and other members of the proposed class. He is sued in his official capacity.
9. Respondent Kevin K. McAleenan is the Acting Commissioner of CBP. Acting Commissioner McAleenan has immediate custody of Petitioners and other members of the proposed class. He is sued in his official capacity.
10. Respondent James T. Madden is the Director of the New York Field Office of CBP, which has immediate custody of Petitioners and other members of the proposed class. He is sued in his official capacity.
11. Respondent Donald Trump is the President of the United States. He is sued in his official capacity.
4

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 5 of 20 PageID #: 5
STATEMENT OF FACTS President Trump’s January 27, 2017 Executive Order
12. On January 20, 2017, Donald Trump was inaugurated as the forty-fifth President of the United States.
13. One week later, on January 27, President Trump signed an executive order entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States,” which is attached hereto as Exhibit A and is hereinafter referred to as the “EO.”
14. Citing the threat of terrorism committed by foreign nationals, the EO directs a variety of changes to the manner and extent to which non-citizens may seek and obtain admission to the United States, particularly (although not exclusively) as refugees. Among other things, the EO imposes a 120-day moratorium on the refugee resettlement program as a whole; proclaims that “that the entry of nationals of Syria as refugees is detrimental to the interests of the United States,” and therefore “suspend[s]” indefinitely their entry to the country; similarly proclaims that “the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests” of the country.
15. Most relevant to the instant action is Section 3(c) of the EO, in which President Trump proclaims “that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States,” and that he is therefore “suspend[ing] entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order,” with narrow exceptions not relevant here.
5

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 6 of 20 PageID #: 6
16. There are seven countries that fit the criteria in 8 U.S.C. § 1187(a)(12): Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. According to the terms of the EO, therefore, the “entry into the United States” of non-citizens from those countries is “suspended” from 90 days from the date of the EO. Petitioner Hameed Khalid Darweesh
17. Hameed Khalid Darweesh is a 53-year-old citizen of Iraq, married with three children (twenty years, fifteen years, and seven years of age).
18. Mr. Darweesh was trained and worked as an electrical engineer in Iraq. Between March 20, 2003 and September 30, 2013, he was contracted by the U.S. government to work in a variety of positions that placed him in substantial risk of being targeted, attacked and killed by anti-American militias and insurgents.
19. Mr. Darweesh’s services included: working as an interpreter for the U.S. Army 101st Airborne in Baghdad and Mosul from April 1, 2003 to January 15, 2004; working as an interpreter for the 91st Engineering Unit at the Baghdad Airport from January 20, 2004 to August 4, 2004; working as a Project Engineer for the U.S. Government Projects Contracting Office Oil sector of North Iraq from December 5, 2005 to December 1, 2006; and, working for Vessar contractors of the U.S. government from 2006 to 2011.
20. Mr. Darweesh was directly targeted twice for his association with the U.S. Armed Forces. While working at the Baghdad Airport between 2004 and 2005, the Baghdad Police entered his house, claiming they were searching for a terrorist. The Baghdad Police are widely known to be closely affiliated with anti-American militias. Shortly after this incident, two of Mr.
6

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 7 of 20 PageID #: 7
Darweesh’s colleagues were killed as soon as they arrived at work. As a result of these attacks, Mr. Darweesh feared for his safety and decided to leave Baghdad for Kirkuk.
21. In the second instance, in July 2009, Mr. Darweesh was stopped at a market in Kirkuk where he was informed by a local shopkeeper that men were driving around in a BMW asking for him by name and the location of his house. These men returned a second time the following week, and Mr. Darweesh had strong reasons to suspect that the men searching for him were terrorists. As a result, Mr. Darweesh and his family were forced to flee to a different area of Iraq, Erbil.
22. Based on these threats and his over ten years of service to the U.S. government, Mr. Darweesh applied for an Iraqi Special Immigrant Visa (SIV) status on or around October 1, 2014.
23. Congress created the Iraqi and Afghan Special Immigrant Visa (SIV) programs to provide safety and refuge in the United States for Iraqis and Afghans who face or have faced serious threats on account of their faithful and valuable service to the United States. The programs were established pursuant to the Refugee Crisis in Iraq Act of 2007, 8 U.S.C. § 1157 note at 124149 and the Afghan Allies Protection Act of 2008, 8 U.S.C. § 1101 note at 601-02.
24. The first step in pursuing a SIV is obtaining Chief of Mission (COM) Approval from the Embassy. The Chief of Mission determines whether the applicant has “provided faithful and valuable service to the United States” and “has experienced or is experiencing a serious threat” as a “consequence” of that service.
25. After obtaining COM Approval, a SIV Applicant files the Form I-360 petition to USCIS to apply for an SIV. Once the petition is approved, the applicant submits a DS-260 visa
7

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 8 of 20 PageID #: 8
application, along with accompanying documents, to the National Visa Center. After the DS-260 is processed, the applicant undergoes an interview at a U.S. consulate or embassy.
26. After the interview, SIV applications go into administrative processing during which the U.S. government conducts various security checks as well as a medical examination. Once an applicant is cleared, they are issued a SIV to travel to the United States.
27. Several weeks after the applicant enters the United States, the applicant receives a green card in the mail and can naturalize five years later.
28. Mr. Darweesh received COM Approval for the visa on January 26, 2015, in a signed statement from Lena Levitt, Refugee Coordinator of the Designee of the Chief of Mission, noting that Mr. Darweesh had provided “faithful and valuable service to the United States Government.”
29. Despite receiving COM approval in January 2015, it took over two years for Mr. Darweesh’s visa and visas for his family to be processed. After petitioning for a SIV through the U.S. Citizenship and Immigration Services, which was approved conditionally on March 25, 2015, Mr. Darweesh appeared for an in-person interview at the U.S. Embassy in Baghdad on April 12, 2016 and went through administrative processing, including security background checks as well as medical exams.
30. Five Special Immigrant Visas were issued to Mr. Darweesh and his family on January 20, 2017, and they received them by DHL on January 25, 2017. Because of the sensitive and dangerous nature of Mr. Darweesh’s situation, the family immediately boarded a flight from Erbil to New York City, via Istanbul, and arrived in the United States on January 27, 2017, around 6:00 PM EST.
8

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 9 of 20 PageID #: 9
31. Mr. Darweesh and his family were expecting to travel on to Charlotte, North Carolina, where they were to receive refugee benefits. However, after de-planing in John F. Kennedy Airport in Queens, New York, Mr. Darweesh was held by U.S. Customs and Border Protection (CBP) and remains in their custody.
32. Mr. Darweeh’s attorney was present at the Arrivals section of Terminal 1 but did not enter the CBP area. Mr. Darweesh and his family waited to be processed by CBP for about an hour. Approximately one hour later, Mr. Darweesh himself was moved into “secondary screening.” The family waited for over an hour before a CBP officer and Mr. Darweesh emerged to return passports for every member of Mr. Darweesh’s family except for Mr. Darweesh himself. Mr. Darweesh was then taken back into secondary screening.
33. At approximately 11:30pm, two CBP officers, upon information and belief, Officer Scott Maurel and Officer Ray Sinacola, requested that the family return to the CBP-controlled security zone for additional questioning of Mr. Darweesh’s wife. CBP refused to conduct the questioning of Mrs. Darweesh in the Arrivals area despite requests of counsel. When asked by counsel, the officers confirmed that they were making a request, not giving an order at that time. Through counsel, the family declined the request and left the airport.
34. Mr. Darweesh is not being permitted to meet with his attorneys who are present at JFK and have made multiple attempts to meet with him.
35. When Mr. Darweesh’s attorneys approached CBP requesting to speak with Mr. Darweesh, CBP indicated that they were not the ones to talk to about seeing their client. When the attorneys asked “Who is the person to talk to?” the CBP agents responded, “Mr. President. Call Mr. Trump.”
9

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 10 of 20 PageID #: 10
36. Upon knowledge and belief, Mr. Darweesh remains in the custody of CBP at JFK Airport.
37. Upon knowledge and belief, Mr. Darweesh is not being permitted to apply for asylum or other forms of protection from removal.
38. Upon knowledge and belief, Mr. Darweesh is at imminent risk of being returned to Iraq against his will, and despite the grave danger he faces there. Petitioner Haider Sameer Abdulkhaleq Alshawi
39. Haider Sameer Abdulkhaleq Alshawi is an Iraqi national born on April 29, 1983 in Baghdad, Iraq. He studied accounting at Baghdad University, graduating in 2006.
40. Mr. Alshawi possesses the requisite documentation to enter the U.S.: an immigrant visa in his passport.
41. Upon information and belief, Mr. Alshawi was deemed admissible for a Follow to Join (FTJ) visa category F2A (joining spouse and child) awarded by the U.S. Department of State on January 11, 2017. See generally 8 U.S.C. § 1157(c)(2)(A); 8 C.F.R. § 207.7(a) (spouse or child of refugee “shall be granted refugee status if accompanying or following-to-join the principal alien”). Upon information and belief, the visa was authorized by USCIS and the State Department, documenting its approval of Mr. Alshawi’s admissibility to the United States as an FTJ Visa recipient. Upon information and belief, The U.S. Embassy in Stockholm also determined that Mr. Alshawi does not pose a security threat to the United States, and, as a result, is admissible to the United States.
10

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 11 of 20 PageID #: 11
42. The FTJ visa was granted to reunite Mr. Alshawi with his wife, Duniyya Alshawi, and their seven-year-old son in the United States. Mr. Alshawi and his wife have been married since 2008.
43. Ms. Alshawi worked for Falcon Security Group, a U.S. contractor, from 2006 to 2007 as an accountant. Upon information and belief, her brother also worked for Falcon Security Group in Human Resources. Mr. Alshawi heard through neighbors in the family’s community in Baghdad that, due to the family’s association with the U.S. military, insurgents thought that they were collaborators.
44. In 2010, insurgents attempted to kidnap Ms. Alshawi’s brother. A month later, an IED placed on Mr. Alshawi’s sister-in-law’s car detonated, killing her husband and severely injuring her and her daughter. Fearing for their safety, Mr. Alshawi and his wife moved from Baghdad to Erbil, Iraq.
45. Ms. Alshawi and her son applied for refugee status in January 2011. Upon information and belief, in January of 2014 Ms. Alshawi and her son were approved to travel to Houston through the Priority 2-Direct Access Program (P2-DAP). Upon information and belief, Ms. Alshawi and her son have since adjusted their statuses to that of lawful permanent residents and now live in Houston, Texas. Ms. Alshawi subsequently filed for a FTJ visa for her husband. On October 9, 2014, USCIS approved Ms. Alshawi’s I-730 petition for Mr. Alshawi’s entry. On January 11, 2017, Mr. Alshawi obtained a U.S. Visa Foil Type ZZ (Visa 93) with a notation in his passport that the foil was prepared at DHS request.
11

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 12 of 20 PageID #: 12
46. Mr. Alshawi’s FTJ visa grants him permission to enter the United States. Upon information and belief, pursuant to this visa Mr. Alshawi traveled from Stockholm, Sweden on January 27, 2017 (local time) to immigrate to the United States.
47. Additionally, Ms. Alshawi filed an I-130 application with USCIS to petition for Mr. Alshawi to enter as an alien relative. Mr. Alshawi has a priority date of December 18, 2015. Currently, the visa bulletin for February indicates that visas are being processed with final action dates up to April 15, 2015. Mr. Alshawi thus soon will be eligible for visa processing on this I130 application in addition to his existing FTJ Visa.
48. Upon information and belief, Mr. Alshawi arrived in at John F. Kennedy airport in New York City on January 27, 2017 at approximately 8:22 PM EST on Norwegian Air flight DY 7005.
49. Upon arrival at the gate, Mr. Alshawi was blocked on the aircraft by CBP. A Norwegian Airline attendant confirmed that he was being held by CBP.
50. Mr. Alshawi is not being permitted to meet with his attorneys who are present at JFK and have made multiple attempts to meet with him.
51. When Mr. Alshawi’s attorneys approached CBP requesting to speak with Mr. Alshawi, CBP indicated that they were not the ones to talk to about seeing their client. When the attorneys asked “Who is the person to talk to?” the CBP agents responded, “Mr. President. Call Mr. Trump.”
12

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 13 of 20 PageID #: 13
52. Upon information and belief, Mr. Alshawi remains in the custody of CBP at JFK Airport.
53. Upon information and belief, Mr. Alshawi is not being permitted to apply for asylum or other forms of protection from removal.
54. Upon information and belief, Mr. Alshawi is at imminent risk of being returned to Iraq against his will, despite the grave danger he faces there.
REPRESENTATIVE HABEAS ACTION ALLEGATIONS
55. In addition to Petitioners Darweesh and Alshawi, there are numerous other individuals detained nationwide who are either refugees admitted via USRAP or visa holders from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. Each of these similarly situated individuals has been detained and questioned by CBP officials, denied entry to the United States, and subject to the threat of return to the country from which their travel originated, regardless of their presentation of valid entry documents, their status in the prior country, and possible claims qualifying them for protection under 8 USC 1101(a)(42) and 8 U.S.C. § 1225(b)(1)(A)(ii).
56. Each of these similarly situated individuals is entitled to bring a petition for a writ of habeas corpus or, in the alternative a complaint for declaratory and injunctive relief, to prohibit the policy, pattern, and practice of Respondents detaining class members and prohibiting class members from entering the United States when they arrive at U.S. borders with valid entry documents. As set out in further detail in the concurrently filed Motion for Class Certification, these similarly situated individuals satisfy the numerosity, typicality, commonality, and
13

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 14 of 20 PageID #: 14
adequacy of representation requirements established by United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125-26 (2d Cir. 1974) and Fed. R. Civ. P. 23, and respectfully move this Court for an order certifying a representative class of Petitioners consisting of all individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States, but who have been or will be denied entry to the United States on the basis of the January 27, 2017 Executive Order.
CAUSES OF ACTION COUNT ONE
FIFTH AMENDMENT – PROCEDURAL DUE PROCESS DENIAL OF RIGHT TO APPLY FOR ASYLUM
57. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
58. Procedural due process requires that the government be constrained before it acts in a way that deprives individuals of liberty interests protected under the Due Process Clause of the Fifth Amendment.
59. The United States government is obligated by United States and international law to hear the asylum claims of noncitizens presenting themselves at United States borders and ports of entry. The Immigration and Nationality Act provides that “[a]ny alien who is physically present in the United States or who arrives in the United States. . . irrespective of such alien’s status, may
14

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 15 of 20 PageID #: 15
apply for asylum in accordance with this section or, where applicable, section 235(b).” 8 U.S.C. § 1158(a)(1); see also id. § 1225(b)(1)(A)(ii).
60. Consistent with these United States statutory and international law obligations, individuals arriving at United States ports of entry must afforded an opportunity to apply for asylum or other forms of humanitarian protection and be promptly received and processed by United States authorities.
61. Having presented themselves at a United States port of entry, Petitioners are entitled to apply for asylum and to be received and processed by United States authorities.
62. Respondents’ actions in denying Petitioners the opportunity to apply for asylum, taken pursuant to the EO, violate the procedural due process rights guaranteed by the Fourteenth Amendment.
COUNT TWO FIFTH AMENDMENT – PROCEDURAL DUE PROCESS DENIAL OF RIGHT TO WITHHOLDING/CAT PROTECTION 63. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 64. Under United States law as well as human rights conventions, the United States may not return (“refoul”) a noncitizen to a country where she may face torture or persecution. See 8 U.S.C. § 1231(b); United Nations Convention Against Torture (“CAT”), implemented in the Foreign Affairs Reform and RestrucTturing Act of 1998 (“FARRA”), Pub. L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified as Note to 8 U.S.C. § 1231).
15

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 16 of 20 PageID #: 16
65. Respondents’ actions in seeking to return Petitioners to Iraq, taken pursuant to the EO, deprive Petitioners of their rights under 8 U.S.C. § 1231(b) and the Convention Against Torture without due process of law.
COUNT THREE THE IMMIGRATION AND NATIONALITY ACT, THE CONVENTION AGAINST TORTURE, THE FOREIGN AFFAIRS REFORM AND RESTRUCTURING ACT OF
1998, IMPLEMENTING REGULATIONS
66. Petitioners repeat and incorporate by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
67. The Immigration and Nationality Act and implementing regulations, including 8 U.S.C. § 1225(b)(1) (expedited removal), 8 C.F.R. §§ 235.3(b)(4), 208.30, and 1003.42; 8 U.S.C. § 1158 (asylum), and 8 U.S.C. § 1231(b)(3) (withholding of removal), and the United Nations Convention Against Torture (“CAT”), implemented in the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub.L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified at 8 U.S.C. § 1231 note), entitle Petitioners to an opportunity to apply for asylum, withholding of removal, and CAT relief. These provisions also entitle Petitioners to a grant of withholding of removal and CAT relief upon a showing that they meet the applicable legal standards. Respondents’ actions in seeking to return Petitioners to Iraq, taken pursuant to the EO, deprive Petitioners of their statutory and regulatory rights.
COUNT FOUR FIFTH AMENDMENT – EQUAL PROTECTION
16

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 17 of 20 PageID #: 17
68. Petitioners repeat and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein.
69. The EO discriminates against Petitioners on the basis of their country of origin, and without sufficient justification, and therefore violates the equal protection component of the Due Process Clause of the Fifth Amendment.
70. Additionally, the EO was substantially motivated by animus toward—and has a disparate effect on—Muslims, which also violates the equal protection component of the Due Process Clause of the Fifth Amendment.
COUNT FIVE ADMINISTRATIVE PROCEDURE ACT 71. Petitioners repeat and incorporates by reference each and every allegation contained in the preceding paragraphs as if fully set forth herein. 72. The INA forbids discrimination in issuance of visas based on a person's race, nationality, place of birth, or place of residence. 8 U.S.C. § 1152(a)(1)(A). 73. Respondents’ detention and mistreatment of Petitioners and the members of the proposed class pursuant to the January 27 EO, as set forth above, is not authorized by the INA. 74. Respondents’ actions in detaining and mistreating Petitioners and other members of the proposed class as set forth above were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; and without observance of procedure required by law, in violation of the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D).
17

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 18 of 20 PageID #: 18
PRAYER FOR RELIEF WHEREFORE, Petitioners and other members of the proposed class pray that this Court grant the following relief: (1) Issue a Writ of Habeas Corpus requiring Respondents to release Petitioners and other members of the proposed class forthwith; (2) Issue an injunction ordering Respondents not to detain any individual solely on the basis of the EO; (3) Enter a judgment declaring that Respondents’ detention of Petitioners and other members of the proposed class is and will be unauthorized by statute and contrary to law; (4) Award Petitioners and other members of the proposed class reasonable costs and attorney’s fees; and (5) Grant any other and further relief that this Court may deem fit and proper.

DATED: January 28, 2017 Brooklyn, New York

Respectfully submitted,
/s/ Michael J. Wishnie Michael J. Wishnie (MW 1952) Elora Mukherjee Amit Jain, Law Student Intern Natalia Nazarewicz, Law Student Intern My Khanh Ngo, Law Student Intern Yusuf Saei, Law Student Intern
18

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 19 of 20 PageID #: 19
Rachel Wilf, Law Student Intern The Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520-9090 Phone: (203) 432-4800 Fax: (203) 432-1426 michael.wishnie@yale.edu
Rebecca Heller Mark Doss Julie Kornfeld International Refugee Assistance Project Urban Justice Center 40 Rector St., 9th Floor New York, NY 10006 Phone: (646) 704-3922
Karen C. Tumlin† Nicholas Espíritu† Melissa S. Keaney† Esther Sung† National Immigration Law Center 3435 Wilshire Boulevard, Suite 1600 Los Angeles, CA 90010 Phone: (213) 639-3900 Jonathan E. Polonsky
Justin Cox National Immigration Law Center 1989 College Ave. NE Atlanta, GA 30317 Phone: (678) 404-9119
Omar C. Jadwat Lee Gelernt Cecillia D. Wang American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2600
19

Case 1:17-cv-00480 Document 1 Filed 01/28/17 Page 20 of 20 PageID #: 20
ojadwat@aclu.org lgelernt@aclu.org cwang@aclu.org Jennifer Chang Newell† Cody H. Wofsy† American Civil Liberties Union Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Tel. (415) 343-0770 jnewell@aclu.org cwofsy@aclu.org Kilpatrick Townsend & Stockton LLP 1114 Avenue of the Americas New York, NY 10036 Phone: (212) 775-8703 Fax: (212) 775-8819
20

 </s> Case 1:17-cv-00480 Document 8 Filed 01/28/17 Page 1 of 3 PageID #: 81

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------- X
HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI, on behalfofthemselves and others similarly situated,
Petitioners,
-against-

DECISION AND ORDER 17 Civ. 480 (AMD)

DONALD TRUMP, President ofthe United States; U.S. DEPARTMENT OF HOMELAND SECURITY ("DHS"); U.S. CUSTOMS AND BORDER PROTECTION ("CBP"); JOHN KELLY, Secretary ofDHS; KEVIN K. MCALEENAN,Acting Commissioner ofCBP; JAMES T. MADDEN, New York Field Director, CBP,

Respondents.
--------------------------------------------------------------- X
ANN DONNELLY, District Judge. On January 28,2017, the petitioners filed an Emergency Motion for Stay of Removal on
behalf of themselves and others similarly situated. IT APPEARING to the Court from the Emergency Motion for Stay of Removal, the
other submissions, the arguments of counsel, and the hearing held on the 28th of January, 2017, 1. The petitioners have a strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates their rights to Due Process and Equal Protection guaranteed by the United States Constitution;

Case 1:17-cv-00480 Document 8 Filed 01/28/17 Page 2 of 3 PageID #: 82
2. There is imminent danger that, absent the stay of removal, there will be substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to the January 27, 2017 Executive Order;
3. The issuance of the stay of removal will not injure the other parties interested in the proceeding;
4. It is appropriate and just that, pending completion of a hearing before the Court on the merits of the Petition, that the Respondents be enjoined and restrained from the commission of further acts and misconduct in violation of the Constitution as described in the Emergency Motion for Stay of Removal. WHEREFORE, IT IS HEREBY ORDERED that the respondents, their officers,
agents, servants, employees, attorneys, and all members and persons acting in concert or participation with them, from the date of this Order, are
ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.
IT IS FURTHER ORDERED that to assure compliance with the Court's order, the Court directs service of this Order upon the United States Marshal for the Eastern District of New York, and further directs the United States Marshals Service to take those actions deemed necessary to enforce the provisions and prohibitions set forth in this Order.

Case 1:17-cv-00480 Document 8 Filed 01/28/17 Page 3 of 3 PageID #: 83

SO ORDERED.
Dated: Brooklyn, New York January 28, 2017

M. Donnelly nited States District Judge

 </s> Case 1:17-cv-00480 Document 4 Filed 01/28/17 Page 1 of 12 PageID #: 35

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

__________________________________________

)

Hameed Khalid Darweesh, on behalf of himself )

and all others similarly situated; and,

) Case No. ____________________

)

Haider Sameer Abdulkhaleq Alshawi, on behalf of )

himself and all others similarly situated,

)

)

Petitioners,

) Date: January 28, 2017

)

v.

)

)

DONALD TRUMP; U.S. DEPARTMENT OF

)

HOMELAND SECURITY (“DHS”); U.S.

)

CUSTOMS AND BORDER PROTECTION

)

(“CBP”); JOHN KELLY, Secretary of DHS;

)

KEVIN K. MCALEENAN, Acting Commissioner )

of CBP; JAMES T. MADDEN, New York Field )

Director, CBP,

.

Respondents. _________________________________________

PETITIONERS’ MOTION FOR CLASS CERTIFICATION OR REPRESENTATIVE HABEAS ACTION

1. Petitioners Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq Alshawi have valid entry documents for the United States but are presently detained by Respondents at John F. Kennedy International Airport (“JFK”) on the basis of an Executive Order issued by President Donald Trump on January 27, 2017. Mr. Khalid Darweesh is an Iraqi national with a valid Special Immigrant Visa to enter the United States, based on his work for U.S. contractors and the U.S. consulate general in Erbil, Iraq. Mr. Abdulkhaleq Alshawi is also an Iraqi national who arrived in the United States with an approved application to join his legal permanent resident wife, who entered as a refugee, and their child. Both petitioners assert a fear of returning to their

1

Case 1:17-cv-00480 Document 4 Filed 01/28/17 Page 2 of 12 PageID #: 36
countries and, if they are not admitted pursuant to their valid entry documents, seek an opportunity to pursue asylum, withholding, relief under the convention against torture. Each of these Petitioners and other members of the proposed class bring this petition for a writ of habeas corpus or, in the alternative, a complaint for declaratory and injunctive relief, to prohibit the policy, pattern, and practice of Respondents detaining class members and prohibiting class members from entering the United States solely on the basis of the Executive Order when they arrive at U.S. borders with valid entry documents. 2. On January 27, 2016, President Donald Trump issued an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States,” (“Jan. 27 EO”) that, inter alia, purports to suspend the U.S. Refugee Admissions Program (“USRAP”) (Jan. 27 EO Sec. 5) and categorically deny admission to the United States for certain individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen (EO Sec. 3), which are designated as “countries of concern” pursuant to 8 U.S.C. § 1187(a)(12). See Department of Homeland Security, DHS Announces Further Travel Restrictions for the Visa Waiver Program, Feb. 18, 2016, https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictions-visa-waiverprogram (listing Libya, Somalia, Yemen, Iran, Iraq, Sudan, and Syria as countries of concern) 3. The Executive Order is the sole basis for the Respondents’ custody over Petitioners. 4. The Executive Order establishes a policy, pattern, practice, and custom of detaining and deporting both refugees admitted via USRAP and visa holders from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen who arrive at U.S. borders, notwithstanding that these individuals have valid entry documents for the United States. The Jan. 27 EO orders the suspension of USRAP for 120 days and the denial of entry to certain individuals from the designated countries for 90 days at a minimum.
2

Case 1:17-cv-00480 Document 4 Filed 01/28/17 Page 3 of 12 PageID #: 37
5. Upon arrival in the United States, Petitioners and class members are detained and questioned by Customs and Border Protection (“CBP”) officials. Class members are subsequently denied entry to the United States, and forced to return to the country from which their travel originated, regardless of whether they present valid entry documents, their status in the prior country, and possible claims qualifying them for protection under the immigration laws, including 8 U.S.C § 1101(a)(42), 8 U.S.C. § 1158(a)(1), 8 U.S.C. § 1231(b); United Nations Convention Against Torture (“CAT”), implemented in the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub.L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified as Note to 8 U.S.C. § 1231), and 8 U.S.C. § 1225(b)(1)(A)(ii). 6. Such relatively short periods of detention are particularly difficult for putative class members to challenge independently. Individuals may be forced to board a flight removing them within mere hours of their arrival in the United States. Denial of entry further reduces each individual’s capacity to challenge his or her detention because there is no access to counsel and no access to resources such as translators during the fleeting period of detention before deportation. Given that such detention is likely to be repeated for thousands of individuals, class treatment is especially appropriate in this case. 7. Petitioners and the proposed class, by and through their attorneys, hereby respectfully move this Court for an order certifying a representative class of Petitioners, pursuant to United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974). Petitioners ask this Court to certify a class consisting of all individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya,
3

Case 1:17-cv-00480 Document 4 Filed 01/28/17 Page 4 of 12 PageID #: 38
Somalia, and Yemen legally authorized to enter the United States, but who have been or will be denied entry to the United States on the basis of the January 27, 2017 Executive Order. 8. Petitioners intend to supplement this motion promptly with briefing and evidentiary support. 9. The Second Circuit has recognized that representative habeas actions are appropriate in certain circumstances. United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125-26 (2d Cir. 1974). The Sero court allowed the petitioner to represent a class of young adults serving state sentences for misdemeanors who were challenging the length of those sentences. Id. Because Rule 23 of the Federal Rules of Civil Procedure is not directly applicable to a habeas class action, the Second Circuit fashioned procedures appropriate for such an action pursuant to the All Writs Act, 28 U.S.C. § 1651. See Harris v. Nelson, 394 U.S. 286, 299 (1969) (courts may use “appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage” in the habeas context). Accordingly, the Second Circuit allowed the case to proceed as “a multi-party proceeding similar to the class action authorized by the Rules of Civil Procedure.” Sero, 506 F.2d at 1125. 10. The Second Circuit articulated a number of reasons why it found class action treatment appropriate in the habeas context, all of which are present in the instant action as well. 11. First, the challenge brought by the class was “applicable on behalf of the entire class, uncluttered by subsidiary issues.” Sero, 506 F.2d at 1126. 12. Second, citing the likelihood that many of the class would be illiterate or lack sufficient education, as well as the probability that many would not have the assistance of counsel in filing habeas applications, the Second Circuit found that “more than a few [class members] would otherwise never receive the relief here sought on their behalf.” Id.
4

Case 1:17-cv-00480 Document 4 Filed 01/28/17 Page 5 of 12 PageID #: 39
13. Third, the Second Circuit found considerations of judicial economy persuasive, as a representative habeas action would avoid “[t]he considerable expenditure of judicial time and energy in hearing and deciding numerous individual petitions presenting the identical issue.”1 Id. 14. Each of these conditions is present in the instant case, which therefore counsels in favor of this Court recognizing representative habeas action status. 15. First, this case addresses the narrow question of the legality of class members’ detention, a question which applies equally to all members of the putative class: all are or will be held in Respondents’ custody based solely on the Jan. 27 EO. 16. Second, class members are immigrants, including legal permanent residents and others with lawful immigration status who have been or will be denied entry to the United States. As a result, there is a high likelihood that class members detained at a port of entry will have an unsophisticated command of English. For the same reason, members of the proposed class will likely have an insufficient understanding of the U.S. judicial system, U.S. immigration laws, or their right to apply for asylum in the United States. Together, these create a high probability that the putative class members will lack the ability to obtain the assistance of counsel in challenging their detention based on the Jan. 27 EO, even if they were able to determine that such detention were susceptible to legal challenge. 17. Moreover, the very short nature of detention authorized by the Jan. 27 EO makes the likelihood of successfully securing counsel and challenging detention even more remote. As soon as class members are detained, Respondents hold them in secondary screening and seek to immediately deport them from the United States. Even more than in Sero, this strongly suggests
1 In this respect, the Second Circuit also mentioned saving the “expense which would be incurred in appointing counsel for each individual who proceeded on his own.” Sero, 506 F.2d at 1126. Counsel is not appointed for individuals held in Respondents custody when they are detained at ports of entry. Because of this, there is no cost to appointing counsel in the first instance, and allowing a representative habeas action does not change that.
5

Case 1:17-cv-00480 Document 4 Filed 01/28/17 Page 6 of 12 PageID #: 40
that “more than a few would otherwise never receive the relief here sought on their behalf.” Sero, 506 F.2d at 1126. 18. Third, the same justifications motivating the Sero court regarding judicial economy are applicable here: allowing a representative habeas action to proceed would avoid “[t]he considerable expenditure of judicial time and energy in hearing and deciding numerous individual petitions presenting the identical issue.” Id. 19. In sum, as in Sero, the “unusual circumstances” of this case warrant its treatment as a representative habeas action. Id. at 1125. 20. The Sero court held that courts should consider an “analogous procedure” to Fed. R. Civ. P. 23 when certifying a representative habeas action. Id. 21. Since Sero, the Second Circuit and other circuits have consistently turned to Rule 23 when reviewing the certification of representative habeas actions. See, e.g., Martin v. Strasburg, 689 F.2d 365, 374 (2d Cir. 1982) rev’d on other grounds sub nom. Schall v. Martin, 467 U.S. 253 (1984); see also Bijeol v. Benson, 513 F.2d 965, 968 (7th Cir. 1975) (reviewing representative habeas certification according to Rule 23); United States ex. rel. Morgan v. Sielaff, 546 F.2d 218, 221 (7th Cir. 1975) (same and affirming Bijeol); Rodriguez v. Hayes, 591 F.3d 1105, 1121-26 (9th Cir. 2009) (applying Rule 23 requirements to representative habeas action); Ali v. Ashcroft 346 F.3d 873, 890 (9th Cir. 2003) (same), vacated on other grounds by Ali v. Gonzales, 421 F.3d 765 (9th Cir. 2003); Nguyen Da Yen v. Kissinger, 528 F.2d 11941202-04 (9th Cir. 1975); Napier v. Gertrude, 542 F.2d 825, 827 n.2 (10th Cir. 1976) (same). 22. District courts both within and outside the Second Circuit have certified representative habeas actions per the requirements of Rule 23. Bertrand v. Sava, 535 F. Supp. 1020, 1024-25 (S.D.N.Y. 1982) rev’d on other grounds, 684 F.2d 204 (2d Cir. 1982); Solomon v. Zenk, 04-CV-
6

Case 1:17-cv-00480 Document 4 Filed 01/28/17 Page 7 of 12 PageID #: 41
2214, 2004 WL 2370651 (E.D.N.Y. Oct. 22, 2004) (noting the Second Circuit has “approved habeas corpus class actions”); Streicher v. Prescott, 103 F.R.D. 559 (D.D.C. 1984) (applying Rule 23 to representative habeas action); Fernandez-Roque v. Smith, 91 F.R.D. 117 (N.D. Ga. 1981) (same); Kazarov v. Achim, 2003 WL 22956006, at *3 n.8 (N.D. Ill. 2003) (same); Adderly v. Wainwright, 58 F.R.D. 389, 400 (M.D. Fla. 1972) (same). 23. The proposed representative class meets the four prerequisites for class certification enumerated in Fed. R. Civ. P. 23(a). 24. This Court can certify this representative habeas action consistent with the numerosity requirement of Rule 23(a)(1). The proposed class is “so numerous that joinder of all members is impracticable,” Fed. R. Civ. P. 23(a)(1), and in some cases near impossible. 25. The Sero court emphasized that the proposed class members in that case, exceeding 500 in number, “far surpass the requirements of numerousness which have been imposed in more straight-forward civil actions.” 506 F.2d at 1126 (citing Cypress v. Newport News Gen & Nonsectarian Hosp. Assn., 375 F.2d 648 (4th Cir. 1967) and Citizens Banking Co. v. Monticello State Bank, 143 F.2d 261 (8th Cir. 1944) for proposition that numerosity requirements were satisfied by classes containing eighteen and forty members, respectively). 26. Based on statistics compiled by the Department of State from Fiscal Year 2015, about 25,317 individuals from Iraq, Syria, Sudan, Yemen, Iran, Libya, and Somalia typically enter the United States on non-immigrant, special immigrant, and refugee visas within a given 90 days.2 27. These numbers far exceed the numerosity requirement for analogous actions under Rule
2 This calculation does not include other immigrant visas for which the U.S. Department of State does not keep statistics by country. Department of State, Nonimmigrant Visa Issuances by Visa Class and By Nationality FY 2015, https://travel.state.gov/content/visas/en/law-and-policy/statistics/non-immigrant-visas.html; Department of State, Table IX: Special Immigrant Visas Issued Fiscal Year 2015, https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2015AnnualReport/FY15AnnualReportTableIX.pdf; Department of State, FY15 Refugee Admissions Statistics, https://20092017.state.gov/j/prm/releases/statistics/251285.htm.
7

Case 1:17-cv-00480 Document 4 Filed 01/28/17 Page 8 of 12 PageID #: 42
23(a)(1), and demonstrate class certification, rather than individual habeas petitions, are the appropriate mechanism for resolving putative class members’ claims. 28. The Second Circuit also emphasized in Sero that class certification was supported by the fact that many of the class members were “unidentifiable at the time the action was commenced.” Id. This same consideration applies with special force in the context of detention at ports of entry, given the difficulty of obtaining any information on individuals held at ports of entry and accessing these individuals at multiple facilities at multiple airports within the often short time span between detention and forced departure from the United States. 29. This Court can certify this representative habeas action consistent with the commonality and typicality requirements of Rule 23(a)(2) and (a)(3). All members of the proposed class share common questions of law and fact. 30. The claims of the named Petitioners, Mr. Khalid Darweesh and Mr. Abdulkhaleq Alshawi, are typical of the claims of the class as a whole, as required for traditional class actions by Fed R. Civ. P. 23(a)(2) and (3). As in Sero, Petitioners and the proposed class present “clear and unitary allegation[s],” 506 F.2d at 1127, on behalf of all members of the class, “uncluttered by subsidiary issues” Id. at 1126. 31. The facts of Mr. Khalid Darweesh’s situation are common to all class members: he is currently held at a port of entry despite the fact that the Jan. 27 EO does not provide a lawful basis for his detention. 32. The facts of Mr. Abdulkhaleq Alshawi’s situation are also common to all class members: he is currently held at a port of entry despite the fact that he fact that the Jan. 27 EO does not provide a lawful basis for his detention. 33. Petitioners and the proposed class share legal claims and request the same relief: release
8

Case 1:17-cv-00480 Document 4 Filed 01/28/17 Page 9 of 12 PageID #: 43
from unlawful detention at port of entry into the United States, pursuant to their lawful entry documents. Mr. Khalid Darweesh and Mr. Abdulkhaleq Alshawi allege “that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented … irrespective of minor variations in the fact patterns underlying individual claims,” thus satisfying the typicality requirement. Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993). 34. This Court can certify this representative habeas action consistent with the adequacy requirement of Rule 23(a)(4). Mr. Khalid Darweesh and Mr. Abdulkhaleq Alshawi, through undersigned counsel, “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Attorneys and law student interns of the Jerome N. Frank Legal Services Organization, the National Immigration Law Center, the American Civil Liberties Union, the Iraqi Refugee Assistance Project, and Kilpatrick Townsend & Stockton LLP have extensive experience litigating complex federal civil rights cases and habeas corpus actions, particularly those involving the Immigration and Naturalization Act, the rights of noncitizens, and constitutional claims. Counsel will “vigorously prosecute[] the claim on behalf of the other members” of the class. Sero, 561 F.2d 1127. 35. This Court can certify this representative habeas action consistent with the requirements of Rule 23(b)(1). If proposed class members’ habeas petitions were individually adjudicated, there would be a risk of “inconsistent or varying adjudications” with respect to proposed class members’ constitutional claims that would subsequently lead to “inconsistent or varying adjudications” for Respondents. Fed. R. Civ. P. 23(b)(1)(A). Inconsistent adjudications could force the Respondents to implement an uneven policy with respect to detention that would vary from one port of entry to another. 36. In the alternative, this Court can certify this representative habeas action consistent with
9

Case 1:17-cv-00480 Document 4 Filed 01/28/17 Page 10 of 12 PageID #: 44
the requirements of Rule 23(b)(2).
37. Respondents have “acted or refused to act on grounds that apply generally to the class”
by detaining Petitioner and members of the proposed class at U.S. ports of entry, denying them
admission to the United States, and returning them to the countries from which their travels
originated. Fed. R. Civ. P. 23(b)(2). Final relief is “appropriate respecting the class as a whole”
to ensure that Petitioner and the proposed class, a group of individuals who are detained at ports
of entry for a short period of time, are subject to a consistent policy. Id.
38. Petitioner respectfully seeks leave to supplement this motion promptly with a fuller
briefing and evidentiary presentation.
DATED: January 28, 2017 New Haven, Connecticut
Respectfully submitted,
/s/ Michael J. Wishnie Michael J. Wishnie (MW 1952) Muneer I. Ahmad† Elora Mukherjee (EM 4011)
Amit Jain, Law Student Intern* Aaron Korthuis, Law Student Intern* Natalia Nazarewicz, Law Student Intern* My Khanh Ngo, Law Student Intern* Victoria Roeck, Law Student Intern* Yusuf Saei, Law Student Intern* Thomas Scott-Railton, Law Student Intern* The Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520-9090 Phone: (203) 432-4800 Fax: (203) 432-1426 michael.wishnie@yale.edu
10

Case 1:17-cv-00480 Document 4 Filed 01/28/17 Page 11 of 12 PageID #: 45

Omar C. Jadwat** Lee Gelernt (LG-8511) Cecillia D. Wang (CW-8359) AMERICAN CIVIL LIBERTIEs UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2600 ojadwat@aclu.org lgelernt@aclu.org cwang@aclu.org
Mark Doss Rebecca Heller Julie Kornfeld Stephen Poellot INTERNATIONAL REFUGEE ASSISTANCE PROJECT URBAN JUSTICE CENTER 40 Rector St, 9th Floor New York, NY 10006 Tel. (646)-602-5600 mdoss@refugeerights.org bheller@refugeerights.org jkornfeld@refugeerights.org spoellot@refugeerights.org
Karen C. Tumlin† Nicholas Espíritu† Melissa S. Keaney† Esther Sung† NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 1600 Los Angeles, CA 90010 Phone: (213) 639-3900 tumlin@nilc.org espiritu@nilc.org keaney@nilc.org sung@nilc.org
Jonathan Polonsky Kilpatrick Townsend & Stockton LLP 1114 Avenue of the Americas New York, NY 10036-7703 Tel. (212) 775 8703

Jennifer Chang Newell† Cody H. Wofsy† AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Tel. (415) 343-0770 jnewell@aclu.org cwofsy@aclu.org
Justin B. Cox† NATIONAL IMMIGRATION LAW CENTER 1989 College Ave. NE Atlanta, GA 30317 Phone: (678) 404-9119 cox@nilc.org

11

Case 1:17-cv-00480 Document 4 Filed 01/28/17 Page 12 of 12 PageID #: 46 jpolonsky@kilpatricktownsend.com **Application for admission forthcoming. * Motion for law student appearance forthcoming. † Motion for admission pro hac vice forthcoming. †† For identification purposes only. This motion has been prepared by a clinic operated by Yale Law School, but does not purport to present the school’s institutional views, if any.
Counsel for Petitioners
12

 </s> Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 1 of 27 PageID #: 53

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI,
on behalf of themselves and others similarly situated,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; JAMES T. MADDEN, New York Field Director, CBP,
Respondents.

Memorandum of Law In Support Of EMERGENCY Motion for Stay of Removal
Case No. 1:17-cv-00480
Date: January 28, 2017

PETITIONERS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR EMERGENCY STAY OF REMOVAL

1

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 2 of 27 PageID #: 54
INTRODUCTION Pursuant to Federal Rule of Civil Procedure 7(b)(1) and Local Rule 7.1, Petitioners Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq Alshawi move this Court to stay their removal during the pendency of their habeas petition. In early January 2017, Petitioners were both granted valid entry documents from the federal government to enter the United States. However, on the evening of January 27, 2017, U.S. Customs and Border Protection (“CBP”) blocked both Petitioners from exiting John F. Kennedy International Airport (“JFK Airport”) and detained them therein. CBP’s detention of Petitioners was solely pursuant to an executive order issued on January 27, 2017 by President Donald J. Trump. Petitioners filed a habeas petition in the early morning on January 28, 2017, arguing that their continued detention violates their Fifth Amendment procedural and substantive due process rights, is ultra vires the immigration statutes, and violates the Administrative Procedure Act. Petitioner Darweesh was released from CBP custody subsequent to the filing of the complaint in this case, but, on information and belief, CBP continues to hold Petitioner Alshawi and dozens if not hundreds of other members of the proposed class at JFK and other airports around the country. Further, Defendants’ continued unlawful detention of Petitioner Alshawi and members of the proposed class is part of a widespread pattern of unlawful detention of refugees, arriving aliens and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States, but who have been or will be denied entry to the United States on the basis of the executive order. If removed, Petitioners face irreparable injury, including persecution and possible death in their home countries; issuance of stay of removal would not injure the government and is in the public interest. Counsel for Petitioners have contacted government attorneys for Respondents to request
1

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 3 of 27 PageID #: 55
that the government voluntarily agree to a temporary stay of removal, but the government has not responded and has not agreed to a temporary stay for the Petitioners or members of the class they propose to represent. Accordingly, Petitioners have no choice but to seek assistance from this Court to prevent the imminent repatriation of dozens and dozens of refugees, visa-holders, and other individuals from nations subject to the January 27 executive order. On behalf of themselves and all others similarly situated, Petitioners respectfully move this Court to grant a class-wide emergency stay of removal during the pendency of this habeas petition.
STATEMENT OF FACTS AND PROCEDURAL HISTORY On January 27, 2017, one week after being inaugurated as the forty-fifth President of the United States, Donald Trump signed an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO”). Citing the threat of terrorism committed by foreign nationals, the EO directs a variety of changes to the manner and extent to which noncitizens may seek and obtain admission to the United States, particularly (although not exclusively) as refugees. Among other things, the EO imposes a 120-day moratorium on the refugee resettlement program as a whole; indefinitely suspends the entry of Syrian nationals; and suspends entry of all immigrants and nonimmigrants referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), for 90 days. Nationals from seven countries, Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, are covered under this EO. See “Protecting the Nation from Foreign Terrorist Entry into the United States.” See ECF No. 1, Ex. A (“January 27 EO” or “the EO”). Petitioner Hameed Khalid Darweesh is a 53-year-old citizen of Iraq and recipient of an Iraqi Special Immigrant Visa (“SIV”). As an interpreter, electrical engineer and contractor, Mr. Darweesh performed valuable work on behalf of the U.S. government in Iraq for over a decade. From March 2003 to September 2013, Mr. Darweesh was contracted by the U.S. government to
2

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 4 of 27 PageID #: 56
work in a variety of positions that placed him at substantial risk of being targeted, attacked and killed by anti-American militias and insurgents. Based on direct threats to his life and his over ten years of service, Mr. Darweesh was approved for and was issued an SIV on January 20, 2017 to relocate to the United States. The SIV programs were created by Congress precisely to provide safety and refuge in the United States for Iraqis and Afghans who face or have faced serious threats on account of their faithful and valuable service to the United States. See generally Refugee Crisis in Iraq Act of 2007, 8 U.S.C. § 1157 note at 1241-49 and the Afghan Allies Protection Act of 2008, 8 U.S.C. § 1101 note at 601-02.
Mr. Darweesh and his family, a wife and three children, received their SIV documentation on January 25, 2017. Because of the sensitive and dangerous nature of Mr. Darweesh’s situation, the family immediately boarded a flight from Erbil, Iraq to New York City, via Istanbul, and arriving in the United States in the early evening of January 27, 2017. While CBP eventually processed his family and released them with their passports, CBP continued to hold Mr. Darweesh for additional screening, not permitting him to contact either his family or attorneys who were present at JFK and made multiple attempts to meet with him. Sometime around noon on January 28, 2017, CBP released Mr. Darweesh from custody, although the terms of his release remain unknown.
Petitioner Sameer Abdulkhaleq Alshawi is a 33-year-old citizen of Iraq and recipient of a Follow to Join (“FTJ”) visa category F2A. Mr. Alshawi was awarded with the visa by the U.S. Department of State on January 11, 2017 to join his wife, Duniyya Alshawi, and seven-year-old son, both lawful permanent residents residing in Houston, Texas. See generally 8 U.S.C. § 1157(c)(2)(A); 8 C.F.R. § 207.7(a) (spouse or child of refugee “shall be granted refugee status if accompanying or following-to-join the principal alien”). From 2006 to 2007, Ms. Alshawi
3

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 5 of 27 PageID #: 57
worked as an accountant for Falcon Security Group, a U.S. contractor, along with her brother in human resources. In 2010, insurgents in Iraq targeted the family based on their association with the U.S. military, attempting to kidnap Ms. Alshawi’s brother and detonating an IED on Mr. Alshawi’s sister-in-law’s car, killing her husband and severely injuring her and her daughter. Fearing for their safety, the family relocated to Erbil, Iraq, and Ms. Alshawi and her son applied for refugee status in January 2011.
Upon information and belief, Ms. Alshawi and her son were approved to travel to Houston through the Priority 2-Direct Access Program (P2-DAP) in January 2014, and they have since adjusted their statuses to that of lawful permanent residents. Ms. Alshawi subsequently filed for a FTJ visa for her husband, which was approved by U.S. Citizenship and Immigration Services (USCIS) on October 9, 2014. Mr. Alshawi obtained a U.S. Visa Foil Type ZZ (Visa 93) on January 11, 2017, with a notation in his passport that the foil was prepared at Department of Homeland Security (DHS) request. Despite this visa, Mr. Alshawi was detained by CBP once he arrived at JFK Airport the evening of January 27, 2017, and was permitted to meet with his attorneys who were present at the airport and made multiple attempts to meet with him. Upon information and belief, Mr. Alshawi remains in the custody of CBP at JFK Airport, is not being permitted to apply for asylum or other forms of protection from removal, and is in imminent risk of being returned to Iraq against his will despite the grave danger he faces there.
In addition to Petitioners Darweesh and Alshawi, upon information and belief, there are numerous others individuals detained at JFK Airport and nationwide who are either refugees or visa holders, including lawful permanent residents and dual citizens, from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. Each of these similarly situated individuals has been detained and questioned by CBP officials, denied entry to the United States, and subject to the
4

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 6 of 27 PageID #: 58
threat of return to the country form which their travel originated, regardless of their presentation of valid entry documents, their status in the prior country, and possible claims qualifying them for protections under 8 U.S.C. § 1101(a)(42) and 8 U.S.C. § 1225(b)(1)(A)(ii). The illegal detention is based solely pursuant to the President’s January 27th EO.
In the morning of January 28, 2017, Petitioners filed a habeas petition arguing that the January 27th EO is unlawful as applied to Petitioners and that their continued detention based solely on the executive order violates their Fifth Amendment procedural and substantive due process rights, is ultra vires the immigration statutes, and violates the Administrative Procedure Act. ECF No. 1. Further, Petitioners filed a Motion for Class Certification or Representative Habeas Action, seeking declaratory and injunctive relief to prohibit the policy, pattern, and practice of Respondents detaining class members and prohibiting class members from entering the United States solely on the basis of the EO despite their valid entry documents. ECF No. 4.
ARGUMENT Adjudication of a motion for stay of removal requires that the Court consider four factors: (1) whether the stay applicant demonstrates a strong likelihood of success on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Nken v. Holder, 556 U.S. 418, 434 (2009). With regard to the first factor, this Court has held that Nken “did not suggest that this factor requires a showing that the movant is ‘more likely than not’ to succeed on the merits.” Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 37 (2d Cir. 2010). Rather, this ruling codified an earlier holding that a noncitizen may obtain a stay from this Court without demonstrating that the likelihood of ultimate success is greater than 50 percent. See Mohammed v. Reno, 309 F.3d 95,
5

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 7 of 27 PageID #: 59
102 (2d Cir. 2002). In Petitioners’ case, all four factors counsel in favor of the granting of a stay.
I. Petitioner is Likely to Succeed on the Merits Petitioners’ habeas petition alleges five counts against Respondents: (1) Respondents’
actions in denying Petitioners the opportunity to apply for asylum, taken pursuant to the EO, violate the procedural due process rights guaranteed by the Fourteenth Amendment; (2) Respondents’ actions in seeking to return Petitioners to the countries they fled, taken pursuant to the EO, deprive Petitioners of their rights under 8 U.S.C. § 1231(b) and the Convention Against Torture without due process of law; (3) Respondents’ actions in seeking to return Petitioners, taken pursuant to the EO, deprive Petitioners of their statutory and regulatory rights; (4) Respondents’ actions taken pursuant to the EO violate the equal protection component of the Due Process Clause of the Fifth Amendment; and, (5) Respondents’ actions in detaining and mistreating Petitioners and members of the proposed class were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, in violation of the Administrative Procedure Act.
A. Counts One and Two – Procedural Due Process Claims First, CBP acting pursuant to the EO, unlawfully denied their liberty interests under the due process clause of the Fifth Amendment. Petitioners Darweesh and Alshawi are physically present in the United States with valid entry documents, and have been denied the ability to apply for asylum or withholding protections under the Convention Against Torture. Additionally, due process requires that arriving immigrants be afforded those statutory rights granted by Congress and the principle that “[m]inimum due process rights attach to statutory rights.” Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir.2003) (alteration in original)
6

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 8 of 27 PageID #: 60
(quoting Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir.1996)). See also Clark v. Martinez, 543 U.S. 371 (2005) (demonstrating that immigrants who have not yet been admitted are not categorically excluded from these protections). The Immigration and Nationality Act provides that “[a]ny alien who is physically present in the United States or who arrives in the United States. . . irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 235(b).” 8 U.S.C. § 1158(a)(1). In particular Congress has given asylum seekers the right to present evidence to an Immigration Judge, 8 U.S.C. § 1229a(b)(4)(B), the right to move to reconsider any decision that the applicant is removable, 8 U.S.C. § 1229a(c)(5), and most importantly for the purposes of this appeal, the right to judicial review by a court of appeals of final agency orders denying asylum on the merits and directing removal, 8 U.S.C. § 1252(a)(2)(B)(ii). Under United States law as well as human rights conventions, the United States may not return (“refoul”) a noncitizen to a country where she may face torture or persecution. See 8 U.S.C. § 1231(b); United Nations Convention Against Torture (“CAT”), implemented in the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub. L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified as Note to 8 U.S.C. § 1231). Petitioners’ ability to apply for asylum and withholding under CAT is therefore required by the due process clause, before they may be subject to removal. The EO, however, categorical prohibition on evaluating asylum and CAT claims deprives petitioners of any legal process.
In Landon v. Plasencia the Supreme Court held that in evaluating immigrants’ procedural due process rights when seeking admission to the United States that “the courts must consider the interest at stake for the individual, the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural
7

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 9 of 27 PageID #: 61
safeguards.” Landon v. Plasencia, 459 U.S. 21, 34 (1982). Petitioners’ interests in this case are weighty: they both stand to lose the right to live and work in “this land of freedom.” Id.; see also Bridges v. Wixon, 326 U.S. 135, 154, (1945) (noting that individuals have a liberty interest in proper procedures being applied in deportation proceedings). Both Petitioners Darweesh and Alshawi also have considered interests in avoiding deprivation of life and torture if forced to return to Iraq, and have strong connections to the United States including Lawful Permanent Resident immediate family members. Landon, 459 U.S at 34 (recognizing family and personal connections within the United States as an individual interest). Mr. Darweesh has reason to believe he will be tortured on killed by terrorists currently searching for him and his family in Iraq. ECF No. 1, ¶ 21; Mr. Alshawi similarly has had family members who were targets of kidnapping and fears for his life. ECF No. 1, ¶ 44. Additionally, because Petitioners have already been through substantial procedural screenings and approved for admission (through SIV and Follow to Join (FTJ) visa category F2A screenings), the government’s interest “in efficient administration of the immigration laws” has already been satisfied. Landon v. Plasencia, 459 U.S. at 34. The liberty interests of petitioners and extreme risks of injury that will result from arbitrary deprivation of Petitioners’ rights are therefore substantial and well-recognized by existing precedent, and their denial of admission without the ability to apply for asylum or withholding under CAT offends due process clause of the Fifth Amendment.
B. Count Three – Accardi Claim Respondents’ actions in seeking to return Petitioners to Iraq, taken pursuant to the EO, deprive Petitioners of their statutory and regulatory rights in violation of Accardi v. Shaughnessy, 347 U.S. 260 (1954), which stands for the principle that agencies must comply with their own regulations. See Montilla v. I.N.S., 926 F.2d 162 (2d Cir. 1991) (holding that remand was
8

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 10 of 27 PageID #: 62
required where immigration judge failed to comply with regulations that existed for alien’s benefit, regardless of whether error resulted in prejudice); see also Vitarelli v. Seaton, 359 U.S. 535 (1959) (reinstating Interior Department employee after removal in violation of Department regulations). The Supreme Court has explained that this principle is grounded in the Fifth Amendment’s guarantee of due process, as well as administrative common law and the nature of legislative rulemaking. In the Second Circuit, Accardi relief is available when the agency failure to follow regulations prejudiced the outcome, was so egregious as to shock the conscience, or deprived our plaintiffs of fundamental rights. Rajah v. Mukasey, 544 F.3d 427, 447 (2d Cir. 2008).
The Immigration and Nationality Act and implementing regulations, including 8 U.S.C. § 1225(b)(1) (expedited removal), 8 C.F.R. §§ 235.3(b)(4), 208.30, and 1003.42; 8 U.S.C. § 1158 (asylum), and 8 U.S.C. § 1231(b)(3) (withholding of removal), and the United Nations Convention Against Torture (“CAT”), implemented in the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub.L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified at 8 U.S.C. § 1231 note), entitle Petitioners to an opportunity to apply for asylum, withholding of removal, and CAT relief. These provisions also entitle Petitioners to a grant of withholding of removal and CAT relief upon a showing that they meet the applicable legal standards.
Respondents’ actions in seeking to return Petitioners to Iraq, taken pursuant to the EO, deprive Petitioners of their statutory and regulatory rights under the above provision. This error was clearly prejudicial in that Petitioners and members of the proposed class were offered no opportunity to apply for the above relief. In particular, DHS’s failure to follow its own regulations in affording Petitioners and members of the proposed class an opportunity to apply
9

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 11 of 27 PageID #: 63
for asylum and other forms of humanitarian relief constitute an Accardi violation and should be set aside.
C. Count Four – Equal Protection Petitioners claim a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, on the ground that the EO constitutes intentional discrimination by the federal government on the basis of religion and national origin. As the Second Circuit has explained, intentional discrimination by a government actor can be demonstrated in multiple ways: First, a law or policy is discriminatory on its face if it expressly classifies persons on the basis of race or gender. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 213, 227-29 (1995). In addition, a law which is facially neutral violates equal protection if it is applied in a discriminatory fashion. See Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). Lastly, a facially neutral statute violates equal protection if it was motivated by discriminatory animus and its application results in a discriminatory effect. See Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264-65 (1977). Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999). Discrimination on the basis of religion is a violation of equal protection. See City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (citing religion as an “inherently suspect distinction”); see also Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 715 (1994) (O’Connor, J., concurring); McDaniel v. Paty, 435 U.S. 618, 644 (1978) (“In my view, the Religion Clauses—the Free Exercise Clause, the Establishment Clause, the Religious Test Clause, Art. VI, cl. 3, and the Equal Protection Clause as applied to religion—all speak with one voice on this point: Absent the most unusual circumstances, one’s religion ought not affect one’s legal rights or duties or benefits.”). Similarly, “national origin . . . [is] so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473
10

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 12 of 27 PageID #: 64
U.S. 432, 440 (1985). Therefore, a government action based on animus against, and that has a discriminatory effect on, Muslims or individuals from the countries in question violates the equal protection component of the Due Process Clause.
Petitioners allege that their rights under the equal protection component of the Due Process Clause will be violated by government action that will be applied in a discriminatory fashion. Applying a general law in a fashion that discriminates on the basis of a suspect classification violates the Due Process Clause. See Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999); Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). President Trump made it clear while signing the EO that it will be applied particularly against Muslims and that Christians will be given preference. See Michael D. Shear & Helene Cooper, Trump Bars Refugees and Citizens of 7 Muslim Countries, N.Y. Times (Jan. 27, 2017), https://www.nytimes.com/2017/01/27/us /politics/trump-syrian-refugees.html (“[President Trump] ordered that Christians and others from minority religions be granted priority over Muslims.”); Carol Morello, Trump Signs Order Temporarily Halting Admission of Refugees, Promises Priority for Christians, Wash. Post (Jan. 27, 2017), https://www.washingtonpost.com/world/national-security/trump-approves-extremevetting-of-refugees-promises-priority-for-christians/2017/01/27/007021a2-e4c7-11e6-a5475fb9411d332c_story.html?utm_term=.c30584b100c2. It is clear from the President’s public statements that the EO will be applied in a manner that disfavors individuals of one religious group, Islam, and favors individuals of other religious groups. This differential application will violate the equal protection component of the Due Process Clause.
Petitioners allege that their rights under the equal protection component of the Due Process Clause were violated by government action motivated by forbidden discriminatory animus against individuals from certain countries and Muslims and with a discriminatory effect
11

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 13 of 27 PageID #: 65
against individuals from certain countries and Muslims. See Jana-Rock Const., Inc. v. N.Y. State Dep’t of Econ. Dev., 438 F.3d 195, 204 (2d Cir. 2006) (“Government action . . . violates principles of equal protection ‘if it was motivated by discriminatory animus and its application results in a discriminatory effect.’”); see also Hunter v. Underwood, 471 U.S. 222 (1985); Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581, 605-13 (2d Cir. 2016). “When there is a proof that a discriminatory purpose has been a motivating factor in the decision, . . . judicial deference is no longer justified.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977). Petitioners challenging such facially neutral laws on equal protection grounds bear the burden of making out a “prima facie case of discriminatory purpose.” To establish a prima facie case of discriminatory purpose, the Second Circuit has applied “the familiar Arlington Heights factors.” Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d at 606 (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 at 266-7). The Arlington Heights test looks to the impact of the official action, whether there has been a clear pattern unexplainable on other grounds besides discrimination, the historical background of the decision, the specific sequence of events leading up to the challenged decision, and departures from the normal procedural sequence. Substantive departures may also be relevant “if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. at 266-7.
In this case, the Arlington Heights factors are clearly met. The impact of the EO will clearly fall disproportionately on Muslims and individuals from the countries cited in the EO. As an initial matter, when asked about his proposed ban on Muslims in a July 2016 interview with NBC’s Meet the Press, the then Republican presidential nominee explained, “I’m looking now at territory. People were so upset when I used the word ‘Muslim’: ‘Oh, you can’t use the word
12

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 14 of 27 PageID #: 66
“Muslim.”’ Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.” See Jenna Johnson, Donald Trump Is Expanding His Muslim Ban, Not Rolling It Back, Washington Post (July 24, 2016), https://www.washingtonpost.com/news/postpolitics/wp/2016/07/24/donald-trump-is-expanding-his-muslim-ban-not-rolling-itback/?utm_term=.139272f67dd2. Consistent with this statement, the countries targeted by the EO are all majority Muslim.
When signing the EO, furthermore, President Trump publicly promised that under the EO, preference will be given to Christians from the “countries of concern.” See Michael D. Shear & Helene Cooper, Trump Bars Refugees and Citizens of 7 Muslim Countries, N.Y. Times (Jan. 27, 2017), https://www.nytimes.com/2017/01/27/us/politics/trump-syrian-refugees.html (“[President Trump] ordered that Christians and others from minority religions be granted priority over Muslims.”); Carol Morello, Trump Signs Order Temporarily Halting Admission of Refugees, Promises Priority for Christians, Wash. Post (Jan. 27, 2017), https://www.washingtonpost.com/world/national-security/trump-approves-extreme-vetting-ofrefugees-promises-priority-for-christians/2017/01/27/007021a2-e4c7-11e6-a5475fb9411d332c_story.html?utm_term=.c30584b100c2. It is clear from the President’s public statements that the EO is intended not only to target Muslim-majority countries, but also to have a disparate impact between Muslims and Christians from the same countries.
The historical background of this decision reveals a long line of public statements by President Trump indicating animus towards Muslims. See Theodore Schleifer, Donald Trump: ‘I think Islam hates us’, CNN (Mar. 10, 2016), http://www.cnn.com/2016/03/09/politics/donaldtrump-islam-hates-us. The sequence of events leading up to this decision reveals that President Trump has long publicly stated that he plans to ban Muslims from entering the United States.
13

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 15 of 27 PageID #: 67
See, e.g, Donald J. Trump, Donald J. Trump Statement On Preventing Muslim Immigration, (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-onpreventing-muslim-immigration (“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on.”); Abby Phillip and Abigail Hauslohner, Trump on the Future of Proposed Muslim Ban, Registry: ‘You know my plans’, Wash. Post (Dec. 22, 2016), https://www.washingtonpost .com/news/post-politics/wp/2016/12/21/trump-on-the-future-of-proposed-muslim-ban-registryyou-know-my-plans/?utm_term=.a22a50598ea3.
The EO also represents a substantive departure from previous policy. The named petitioners or their families provided important assistance to the United States military, because of which they were offered entry to the country. Detaining individuals who provided valuable support to our military, at risk of their lives, is not justified by the factor given by the decisionmaker in favor of the decision: America’s national security. As Major General Paul D. Eaton testified before Congress, this would endanger, not protect our national security: “We have a moral obligation to assist those who have allied themselves in our mission in Iraq. Failure to keep the faith with those who have thrown their lot in with us will hurt us; will certainly hurt us in future counterinsurgency efforts.” Iraqi Volunteers, Iraqi Refugees: What is America’s Obligation?: Hearing before the Subcomm. on The Middle East and South Asia of the H. Comm. on Foreign Affairs, 110th Cong. 34 (2007) (Statement of Major General Paul D. Eaton USA, Ret.).
Given the disparate impact of the EO, a historical background of public statements of animus against Muslims, the specific sequence of promises by President Trump that he would “ban” Muslims, and the substantive departure from prior policy on the basis of factors that
14

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 16 of 27 PageID #: 68
strongly favor a decision other than the one reached, the Arlington Heights factors are clearly met. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. at 266-7. Petitioners have therefore asserted a prima facie claim of discriminatory purpose and of discriminatory impact. It is the government’s burden to rebut the resulting “presumption of unconstitutional action.” Washington v. Davis, 426 U.S. 229, 241 (1976).
D. Count Five – Administrative Procedure Act Finally, Defendants’ actions in detaining and mistreating Petitioners and other members of the proposed class were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; and without observance of procedure required by law, in violation of the Administrative Procedure Act (APA), 5 U.S.C. §§ 706(2)(A)-(D). The scope of this Court’s review is delineated by 5 U.S.C. § 706, which provides that the “reviewing court shall . . . hold unlawful and set aside agency action . . . found to be “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; . . . [or] (D) without observance of procedure required by law . . . .” 5 U.S.C. § 706(2) (emphasis added). The APA provides further that, “[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” Id. § 706 (emphasis added). Under the APA, this Court reviews errors of de novo. Andrew Lange, Inc. v. F.A.A., 208 F.3d 389, 391 (2d Cir. 2000).
15

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 17 of 27 PageID #: 69
Respondents detained and mistreated Petitioners and other members of the proposed class solely pursuant to the January 27th EO, which expressly discriminates against Petitioners on the basis of their country of origin and was substantially motivated by animus toward Muslims, in violation of the equal protection component of the Due Process Clause of the Fifth Amendment. See supra Part I-C. The EO exhibits hostility to a specific religious faith, Islam, and gives preference to other religious faiths, principally Christianity. Respondents’ actions were therefore “contrary to constitutional right, power, privilege, or immunity, in violation of § 706(2)(B).
Further, the INA forbids discrimination in issuance of visas based on a person’s race, nationality, place of birth, or place of residence. 8 U.S.C. § 1152(a)(1)(A). This section establishes a non-discrimination principle that extends to the agency’s processing of applicants for entry at the border. Were this not so, this section would have no practical effect, since CBP could simply deny entry to individuals based on the above prohibited characteristics to individuals whom DHS had otherwise duly issued a visa. Respondents’ detention and mistreatment of Petitioners and other members of the proposed class, despite their possession of valid entry documents, is therefore contrary to the INA and in violation of 5 U.S.C. § 706(2)(C).
As set forth in Parts I-A, supra, Respondents’ actions also violated procedural requirements of the Fifth Amendment and the Immigration and Nationality Act by seeking to return Petitioners and members of the proposed class to their home countries without the opportunity to present claims for asylum or other forms of humanitarian protection. Individuals arriving at United States ports of entry must afforded an opportunity to apply for asylum or other forms of humanitarian protection and be promptly received and processed by United States authorities. 8 U.S.C. § 1158(a)(1); see also id. § 1225(b)(1)(A)(ii). The Immigration and Nationality Act and implementing regulations, including 8 U.S.C. § 1225(b)(1) (expedited
16

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 18 of 27 PageID #: 70
removal), 8 C.F.R. §§ 235.3(b)(4), 208.30, and 1003.42; 8 U.S.C. § 1158 (asylum), and 8 U.S.C. § 1231(b)(3) (withholding of removal), and the United Nations Convention Against Torture (“CAT”), implemented in the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub.L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified at 8 U.S.C. § 1231 note), entitle Petitioners to an opportunity to apply for asylum, withholding of removal, and CAT relief. Petitioners’ actions, in violating the procedural requirements of the Due Process Clause of the Fifth Amendment and these various statutory provisions, also violate § 706(2)(D) of the APA, which prohibits agency action taken “without observance of procedure required by law.”
For all of the reasons set forth in this section, Petitioners’ challenged actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In addition, Respondents’ actions were arbitrary and capricious for their failure to consider “all relevant issues and factors.” Long Island Head Start Child Dev. Servs. v. N.L.R.B., 460 F.3d 254 (2d Cir. 2006) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 48-49 (1983)). Under State Farm, for an agency action to survive arbitrary-andcapricious review, it “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” State Farm, 463 U.S. at 43 (internal quotation omitted). This “hard look” standard exceeds the “rational basis” standard applied under the Due Process Clause. Id. at 43 n.9. Here, the Government has failed to consider many relevant issues and factors, including evidence regarding the low risk to U.S. citizens posed by refugees, the relative risk presented by those arriving on different visa categories. II. Without a Stay of Removal, Petitioners Face Irreparable Harm
17

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 19 of 27 PageID #: 71
Along with the likelihood of success on the merits, the irreparable injury inquiry is one of “the most critical” factors in adjudicating stay applications. Nken, 556 U.S. at 433. Without a stay of removal, Petitioners and class members will suffer irreparable harm for three main reasons: (1) near certain return to their country of origin, where they may face threats of persecution, death, and torture, (2) inability to effectively communicate with legal counsel from outside the United States; and, (3) the harm that would be inflicted on Petitioners’ and class members’ families, who are lawfully present in the United States.
Mr. Darweesh and Mr. Alshawi, as well as members of the proposed class, likely face serious bodily harm, persecution, and death absent a stay of removal. Both Mr. Darweesh and Mr. Alshawi either worked for the United States government and its contractors in Iraq, or have ties to immediate family members that did so. See ECF No. 1, ¶¶ 4, 18-20, 43. Due to this association, Mr. Darweesh faced repeated threats from militant groups within Iraq, leading him to apply for a Special Immigrant Visa to leave Iraq and come to the United States. Id. ¶¶ 20-22. Similarly, Mr. Alshawi’s wife worked for a U.S. contractor, the Falcon Security Group in Iraq. Id. ¶ 43. Due to this association, local insurgents targeted Mr. Alshawi’s family, killing his sister-in-law’s husband and inflicting serious bodily harm on his sister-in-law and niece. Id. ¶ 44. As a result, Mr. Alshawi’s wife applied for refugee status, and, after arriving in the United States, filed a “Follow to Join” visa for Mr. Alshawi.
Nevertheless, despite the fact that Petitioners and class members have lawful entry documents, see id. ¶¶ 30, 46, Respondents will likely return them to the country from which their travel originated or their country of origin, placing their lives in imminent danger. See EO Sec. 3(c); 8 U.S.C. § 1231(b)(1)(A) (arriving aliens denied entry “shall be removed to the country in which the alien boarded the vessel or aircraft on which the alien arrived in the United States”).
18

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 20 of 27 PageID #: 72
Congress itself has expressed grave concern for the plight that individuals in Petitioners’ position face. See H.R. 110-158 at 2 (2007) (“The[] work [of Iraqi and Afghani translators] for the United States government often makes them targets of death squads, militias, and al-Qaeda. Many translators and interpreters are forced into hiding and are unable to escape this threat.”); The Plight of Refugees, Hearing Before the S. Judiciary Comm., 110 Cong. Rec. 2 (2007) (statement of Sen. Ted Kennedy) (noting severe danger many refugees face).
Other members of the proposed class, which according to statements by CBP officials, include at least “dozens and dozens” of additional individuals detained at JFK Airport (not to mention an unknown number of additional persons detained at other airports across the nation), also face a strong likelihood of serious bodily, persecution, and death due to enforcement of the EO. Many putative class members have been previously screened by the U.S. Refugee Admissions Program to determine whether they have “well-founded fear of persecution”, see 8 U.S.C. § 1101(42), and issued a visa for entry to the United States as a form of humanitarian protection. Members of the proposed class are fleeing the world’s most war-torn and violent countries, which have prompted a massive exodus as innocent victims like class member flee to safety in recent years. See, e.g., 162 Cong. Rec. S4354 (2016) (Statement of Sen. Leahy) (“Over the past 5 years, the world has witnessed millions of Syrians desperately fleeing the terror inflicted by ISIS and Bashar Al-Assad’s regime …. As a humanitarian leader among nations, the United States must play a significant role in efforts to resettle those displaced by this devastating conflict.”); Anne Barnard, Death Toll From War in Syria Now 470,000, Group Finds, N.Y. Times (Feb. 11, 2016), https://www.nytimes.com/2016/02/12/world/middleeast/death-toll-fromwar-in-syria-now-470000-group-finds.html; Chris Hughes, Half a Million Refugees gather in Libya to Attempt Perilous Crossing to Europe, The Guardian (June 6, 2015), https://www.the
19

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 21 of 27 PageID #: 73
guardian.com/world/2015/jun/06/cameron-merkel-at-odds-resettle-refugees-europe-migration. Thus, denial of entry to United States – despite preapproved and lawful entry documents – places Petitioners and class members in grave danger, given that they lack legal status anywhere other than the United States and their country of origin. See ECF No. 1, ¶¶ 30, 46 (describing Petitioners’ entry documents).
Second, Petitioners and other class members will face extreme difficulty in pursuing their claims to lawful entry to the United States if removed from the United States. Respondents have detained Petitioners and other members of the proposed class and are holding or have held them in temporary detention facilities. ECF No. 1, ¶¶ 4-5. If Respondents continue to detain members of the proposed class and permit access to them, counsel and Petitioners will be able to communicate, gather facts, and ensure that Petitioners are adequately represented in their removal claims. In contrast, removal will significantly hinder counsel’s ability to contact their clients, provide for interpretation, and identify other class members that detained pursuant to the January 27 EO.
While all class members’ removal or forced departure from the United States should be stayed, stays of removal are especially justified in Petitioners’ cases given their status as class representatives. See ECF No. 4, ¶¶ 28-38. Petitioners have submitted a motion to certify a class in which they serve as representatives, see ECF No. 4, and thus removing them would severely impede their ability to adequately represent the class. See United States ex. rel. Sero v. Preiser, 506 F2d 1115, 1125-26 (2d Cir. 1974) (outlining standards for representative habeas class actions).
Finally, Petitioners’ and putative class members’ U.S. citizen, Lawful Permanent Resident, and immigrant family members present in the United States will face certain
20

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 22 of 27 PageID #: 74
irreparable harm if Respondents forced Petitioners’ departure. Indeed, Respondents have prevented Petitioners from reuniting with family members, who were either already present in the United States or released upon departing the plane in JFK. See ECF No. 1, ¶¶ 32-33, 41-42. The forced separation has already provoked fear and emotional trauma among Petitioners’ family members, as they face the strong possibility that they may not see their husband or father again. See Michael D. Shear & Nicholas Kulish, Trump’s Order Blocks Immigrants at Airports, Stoking Fear Around Globe, N.Y. Times (Jan. 28, 2017), https://www.nytimes.com/2017/01/28/us /refugees-detained-at-us-airports-prompting-legal-challenges-to-trumps-immigration-order.html (describing the reactions of Mr. Alshawi’s family to his continued detention in JFK and the possibility that he may be removed). Should Respondents remove Petitioners and other class members, they and their family members will likely face years, if not a lifetime of separation – or may never see each again, should class members be forced to return to the danger in their countries of origin. Thus, Petitioners and class members face a clear and strong threat of irreparable injury, and this factor weighs strongly in favor of granting the motion to stay. III. The Issuance of a Stay Will Not Substantially Injure the Government, and the
Public Interest Lies in Granting Petitioner’s Request for a Stay of Removal The Court in Nken found that the last two stay factors, injury to other parties in the litigation and the public interest, merge in immigration cases because Respondent is both the opposing litigant and the public interest representative. Nken, 556 U.S. at 435. The Court also noted that the interest of Respondent and the public in the “prompt execution of removal orders” is heightened where “the alien is particularly dangerous” or “has substantially prolonged his stay by abusing the process provided to him.” Nken, 556 U.S. at 436 (citations omitted). Here, neither of these factors nor any other factors exist to suggest that the Respondent or the public have any interest in Petitioners’ removal beyond the general interest noted in Nken. Furthermore,
21

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 23 of 27 PageID #: 75
the Nken Court recognized the “public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” See Nken, 556 U.S. at 436. The Petitioners in this case would both face substantial harm if removed, as would their families, shifting the balance of hardship in favor of staying their removal.
Mr. Darweesh is not a danger or a threat to the United States, and he faces substantial harm if removed. He faithfully served the U.S. government for over ten years, for which he was granted a Special Immigrant Visa (SIV) after facing serious threats on account of his service. Before he was approved for the SIV, he passed through an interview at the U.S. Embassy in Baghdad, security background checks, and a medical examination. See Complaint, ¶¶ 28-29, ECF No. 1.
From March 20, 2003 to September 30, 2013, Mr. Darweesh worked as an interpreter for the U.S. Army 101st Airborne and the 91st Engineering Unit at the Baghdad Airport, among other U.S. contracting roles. Id. ¶¶ 18-19. As a result of Mr. Darweesh’s association with the U.S. Armed Forces, he was targeted by both the Baghdad police and men he had strong reasons to believe were terrorists. Id. ¶¶ 20-21. Because of those threats and his service to the U.S. government, Mr. Darweesh applied for and received an Iraqi Special Immigrant Visa, a program specifically created to provide protection to Iraqis and Afghans who face or have faced serious threats on account of their service to the United States. Id. ¶¶ 22-23.
In addition, this Court should consider the harm that Mr. Darweesh’s wrongful removal would cause his family members. Mr. Darweesh is married and has three children, the youngest of whom is seven years old. His wife and children also received SIVs and were able to make it through passport control and customs, where they were separated from their husband and father. Nicholas Kulish and Manny Fernandez, Refugees Detained at U.S. Airports; Trump Immigration
22

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 24 of 27 PageID #: 76
Order is Challenged (Jan. 28, 2017). Because Mr. Darweesh is neither particularly dangerous nor did he “substantially prolong his stay by abusing the process provided to him,” the public interest in preventing his wrongful removal outweighs the government’s general interest in prompt removal, especially in light of the substantial harm he faces and the harm his wife and children would suffer if he were removed.
Mr. Alshawi likewise does not pose a danger or threat to the United States and would face substantial harm if removed. Before granting his Follow to Join (FTJ) visa category F2A, the U.S. Embassy in Stockholm determined that Mr. Alshawi is not a security threat to the United States. Id. ¶ 41. He is attempting to join his wife, Duniyya Alshawi, and their seven-yearold son in Houston, Texas, where they have been living for 3 years. Id. ¶¶ 42, 45; see also Michael D. Shear & Nicholas Kulish, Trump’s Order Blocks Immigrants at Airports, Stoking Fear Around Globe, N.Y. Times (Jan. 28, 2017), https://www.nytimes.com/2017/01/28/us /refugees-detained-at-us-airports-prompting-legal-challenges-to-trumps-immigration-order.html. Ms. Alshawi worked for a U.S. contractor from 2006-2007, as did her brother. See ECF No. 1, ¶ 43. As a result of their connection to the U.S. military, insurgents believed they were collaborators. Id. Then, “[i]n 2010, insurgents attempted to kidnap Ms. Alshawi’s brother. A month later, an IED placed on Mr. Alshawi’s sister-in-law’s car detonated, killing her husband and severly injuring her and her daughter.” Id. ¶ 44. After those incidents of violence, Mr. and Ms. Alshawi moved from Baghdad to Erbil, Iraq out of fear for their safety. Id.
Mr. Alshawi’s wrongful removal would not only result in a serious risk of substantial harm to him, but would also cause harm to his wife and seven-year-old son. Ms. Alshawi and their son applied for refugee status in January 2011 and were approved to travel to Houston through the Priority 2-Direct Access Program (P2-DAP) in January 2014. Id. ¶ 45. They have
23

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 25 of 27 PageID #: 77
since adjusted status to become lawful permanent residents. Id. Ms. Alshawi filed for an FTJ visa for her husband, and Mr. Alshawi obtained a U.S. Foil Type ZZ (Visa 92) on January 11, 2017, prepared at the request of the Department of Homeland Security (DHS). Id. Mr. Alshawi and his family face substantial harm if he were to be removed; thus, the balance of hardships weighs in favor of staying his removal.
Respondent cannot make any particularized showing that granting Petitioners a stay of removal would substantially injure its interests or conflict with the public interest in preventing a wrongful removal, such that the third and fourth Nken factors would outweigh the hardship Petitioners would face if removed.
CONCLUSION For the reasons stated above, this Court should grant Petitioners’ motion for a stay of removal.
DATED: January 28, 2017 New Haven, Connecticut
Respectfully submitted, /s/ Michael J. Wishnie Michael J. Wishnie (MW 1952) Muneer I. Ahmad† Elora Mukherjee (EM 4011) David Chen, Law Student Intern* Jordan Laris Cohen, Law Student Intern* Susanna Evarts, Law Student Intern* Aaron Korthuis, Law Student Intern* Jordan Laris Cohen, Law Student Intern* Katherine Haas, Law Student Intern*
24

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 26 of 27 PageID #: 78

Zachary-John Manfredi, Law Student Intern* My Khanh Ngo, Law Student Intern* Megha Ram, Law Student Intern* Victoria Roeck, Law Student Intern* Thomas Scott-Railton, Law Student Intern* Emily Villano, Law Student Intern* Elizabeth Willis, Law Student Intern* Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520-9090 Phone: (203) 432-4800 Fax: (203) 432-1426 michael.wishnie@yale.edu

Omar C. Jadwat** Lee Gelernt (LG-8511) Cecillia D. Wang (CW-8359) AMERICAN CIVIL LIBERTIEs UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2600 ojadwat@aclu.org lgelernt@aclu.org cwang@aclu.org

Jennifer Chang Newell† Cody H. Wofsy† AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Tel. (415) 343-0770 jnewell@aclu.org cwofsy@aclu.org

Mark Doss Rebecca Heller Julie Kornfeld Stephen Poellot INTERNATIONAL REFUGEE ASSISTANCE PROJECT URBAN JUSTICE CENTER 40 Rector St, 9th Floor New York, NY 10006 Tel. (646)-602-5600 mdoss@refugeerights.org bheller@refugeerights.org jkornfeld@refugeerights.org spoellot@refugeerights.org
25

Case 1:17-cv-00480 Document 6-1 Filed 01/28/17 Page 27 of 27 PageID #: 79

Karen C. Tumlin† Nicholas Espíritu† Melissa S. Keaney† Esther Sung†
NATIONAL IMMIGRATION LAW CENTER
3435 Wilshire Boulevard, Suite 1600 Los Angeles, CA 90010
Phone: (213) 639-3900 tumlin@nilc.org
espiritu@nilc.org keaney@nilc.org
sung@nilc.org

Justin B. Cox† NATIONAL IMMIGRATION LAW CENTER 1989 College Ave. NE Atlanta, GA 30317 Phone: (678) 404-9119 cox@nilc.org

Jonathan Polonsky Kilpatrick Townsend & Stockton LLP 1114 Avenue of the Americas New York, NY 10036-7703 Tel. (212) 775 8703 jpolonsky@kilpatricktownsend.com

**Application for admission forthcoming. * Motion for law student appearance forthcoming. † Motion for admission pro hac vice forthcoming. †† For identification purposes only. This motion has been prepared by a clinic operated by Yale Law School, but does not purport to present the school’s institutional views, if any.

Counsel for Petitioners

26

 </s> Case 1:17-cv-00480 Document 9 Filed 01/29/17 Page 1 of 5 PageID #: 84
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI,
on behalf of themselves and others similarly situated,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; JAMES T. MADDEN, New York Field Director, CBP,
Respondents.

Emergency Motion for Clarification and Enforcement of Order Case No. 1:17-cv-00480
Date: January 29, 2017

PETITIONERS’ EMERGENCY MOTION FOR CLARIFICATION AND ENFORCEMENT OF ORDER
Pursuant to Federal Rule of Civil Procedure 7(b)(1) and Local Rule 7.1, Petitioners Hameed Khalid Darweesh, Haider Sameer Abdulkhaleq Alshawi, and class members file this emergency motion respectfully requesting that the Court immediately clarify and enforce its order granting Petitioners’ Motion for Emergency Stay of Removal. Petitioners’ counsel have learned that Respondents may not be complying with this Court’s Decision and Order. See ECF No. 8 (enjoining and restraining Respondents from removing individuals under the January 27th Executive Order). Specifically, Petitioners’ counsel have received repeated reports of individual members subject to the Order who have been placed on planes, possibly deported, and subject to

1

Case 1:17-cv-00480 Document 9 Filed 01/29/17 Page 2 of 5 PageID #: 85
intimidation to sign removal orders after the issuance of the Court’s Order. This information
pertains to individuals at Los Angeles International Airport (LAX Airport) and JFK Airport.
Furthermore, Assistant United States Attorney, Scott Dunn, has indicated to Petitioners’ counsel
that Respondents believe this Court’s Order may not apply nationwide, and refused to confirm
that Respondents would respect the Order nationwide.
Therefore, on behalf of themselves and all others similarly situated putative class
members, Petitioners respectfully move this Court to immediately clarify that its January 28th
Order is nationwide and order Respondents to enforce the stay of removal.
DATED: January 29, 2017 New Haven, Connecticut
Respectfully submitted,
/s/ Michael J. Wishnie Michael J. Wishnie (MW 1952) Muneer I. Ahmad† Elora Mukherjee (EM 4011)
David Chen, Law Student Intern* Jordan Laris Cohen, Law Student Intern* Susanna Evarts, Law Student Intern* Aaron Korthuis, Law Student Intern* Jordan Laris Cohen, Law Student Intern* Zachary-John Manfredi, Law Student Intern* My Khanh Ngo, Law Student Intern* Megha Ram, Law Student Intern* Victoria Roeck, Law Student Intern* Thomas Scott-Railton, Law Student Intern* Emily Villano, Law Student Intern* Elizabeth Willis, Law Student Intern* Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520-9090 Phone: (203) 432-4800 Fax: (203) 432-1426 michael.wishnie@yale.edu
2

Case 1:17-cv-00480 Document 9 Filed 01/29/17 Page 3 of 5 PageID #: 86

Omar C. Jadwat** Lee Gelernt (LG-8511) Cecillia D. Wang (CW-8359) AMERICAN CIVIL LIBERTIEs UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2600 ojadwat@aclu.org lgelernt@aclu.org cwang@aclu.org
	
  	
  
Mark Doss Rebecca Heller Julie Kornfeld Stephen Poellot INTERNATIONAL REFUGEE ASSISTANCE PROJECT URBAN JUSTICE CENTER 40 Rector St, 9th Floor New York, NY 10006 Tel. (646)-602-5600 mdoss@refugeerights.org bheller@refugeerights.org jkornfeld@refugeerights.org spoellot@refugeerights.org
Karen C. Tumlin† Nicholas Espíritu† Melissa S. Keaney† Esther Sung† NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 1600 Los Angeles, CA 90010 Phone: (213) 639-3900 tumlin@nilc.org espiritu@nilc.org keaney@nilc.org sung@nilc.org
Jonathan Polonsky Kilpatrick Townsend & Stockton LLP 1114 Avenue of the Americas New York, NY 10036-7703 Tel. (212) 775 8703 jpolonsky@kilpatricktownsend.com

Jennifer Chang Newell† Cody H. Wofsy†	
   AMERICAN CIVIL LIBERTIES UNION 	
   FOUNDATION IMMIGRANTS’ RIGHTS PROJECT	
   39 Drumm Street	
   San Francisco, CA 94111 Tel. (415) 343-0770	
   jnewell@aclu.org	
   cwofsy@aclu.org	
  
Justin B. Cox† NATIONAL IMMIGRATION LAW CENTER 1989 College Ave. NE Atlanta, GA 30317 Phone: (678) 404-9119 cox@nilc.org

3

Case 1:17-cv-00480 Document 9 Filed 01/29/17 Page 4 of 5 PageID #: 87 **Application for admission forthcoming. * Motion for law student appearance forthcoming. † Motion for admission pro hac vice forthcoming. †† For identification purposes only. This motion has been prepared by a clinic operated by Yale Law School, but does not purport to present the school’s institutional views, if any. Counsel for Petitioners
4

Case 1:17-cv-00480 Document 9 Filed 01/29/17 Page 5 of 5 PageID #: 88 CERTIFICATE OF SERVICE
I, Michael Wishnie, hereby certify that on January 29, 2017 the foregoing emergency motion was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by email to all parties by operation of the court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF system.
s/ Michael Wishnie Michael Wishnie, Supervising Attorney Jerome N. Frank Legal Services Organization Yale Law School New Haven, CT 06511 Phone: (203) 436-8971 Fax: (203) 432-1426
5

 </s> Case 1:17-cv-00480 Document 10 Filed 01/29/17 Page 1 of 5 PageID #: 89
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI,
on behalf of themselves and others similarly situated,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; JAMES T. MADDEN, New York Field Director, CBP,
Respondents.

Notice Re. Emergency Motion for Clarification and to Enforce Case No. 1:17-cv-00480
Date: January 29, 2017

NOTICE REGARDING PETITIONERS’ EMERGENCY MOTION FOR CLARIFICATION AND ENFORCEMENT OF ORDER
Earlier today, Petitioners filed an Emergency Motion for Clarification and Enforcement of Order, ECF No. 9, based on persistent reports of Respondents’ noncompliance with the Court’s Decision and Order issued January 28, 2017. See ECF No. 8. At the time the motion was filed, Respondents, through counsel, had indicated a belief that the injunction may not be nationwide, and refused to confirm that the Respondents would respect the order nationwide. See ECF No. 9. Since the filing, counsel for Respondents’ counsel has confirmed that Respondents acknowledge that the Order does in fact apply nationwide. Petitioners continue to
1

Case 1:17-cv-00480 Document 10 Filed 01/29/17 Page 2 of 5 PageID #: 90

monitor reports of noncompliance and are working with Respondents’ counsel to attempt to
resolve them. Petitioners will update the Court as to any issues of noncompliance should further
clarification or enforcement be necessary.
DATED: January 29, 2017 New Haven, Connecticut

Omar C. Jadwat** Lee Gelernt (LG-8511) Cecillia D. Wang (CW-8359) AMERICAN CIVIL LIBERTIEs UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2600 ojadwat@aclu.org lgelernt@aclu.org

Respectfully submitted,
/s/ Michael J. Wishnie Michael J. Wishnie (MW 1952) Muneer I. Ahmad† Elora Mukherjee (EM 4011)
David Chen, Law Student Intern* Jordan Laris Cohen, Law Student Intern* Susanna Evarts, Law Student Intern* Aaron Korthuis, Law Student Intern* Jordan Laris Cohen, Law Student Intern* Zachary-John Manfredi, Law Student Intern* My Khanh Ngo, Law Student Intern* Megha Ram, Law Student Intern* Victoria Roeck, Law Student Intern* Thomas Scott-Railton, Law Student Intern* Emily Villano, Law Student Intern* Elizabeth Willis, Law Student Intern* Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520-9090 Phone: (203) 432-4800 Fax: (203) 432-1426 michael.wishnie@yale.edu Jennifer Chang Newell† Cody H. Wofsy† AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Tel. (415) 343-0770 jnewell@aclu.org cwofsy@aclu.org
2

Case 1:17-cv-00480 Document 10 Filed 01/29/17 Page 3 of 5 PageID #: 91

cwang@aclu.org

Mark Doss Rebecca Heller Julie Kornfeld Stephen Poellot INTERNATIONAL REFUGEE ASSISTANCE PROJECT URBAN JUSTICE CENTER 40 Rector St, 9th Floor New York, NY 10006 Tel. (646)-602-5600 mdoss@refugeerights.org bheller@refugeerights.org jkornfeld@refugeerights.org spoellot@refugeerights.org
Karen C. Tumlin† Nicholas Espíritu† Melissa S. Keaney† Esther Sung† NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 1600 Los Angeles, CA 90010 Phone: (213) 639-3900 tumlin@nilc.org espiritu@nilc.org keaney@nilc.org sung@nilc.org

Justin B. Cox† NATIONAL IMMIGRATION LAW CENTER 1989 College Ave. NE Atlanta, GA 30317 Phone: (678) 404-9119 cox@nilc.org

Jonathan Polonsky Kilpatrick Townsend & Stockton LLP 1114 Avenue of the Americas New York, NY 10036-7703 Tel. (212) 775 8703 jpolonsky@kilpatricktownsend.com

**Application for admission forthcoming. * Motion for law student appearance forthcoming. † Motion for admission pro hac vice forthcoming. †† For identification purposes only. This motion has been prepared by a clinic operated by Yale Law School, but does not purport to present the school’s institutional views, if any.

Counsel for Petitioners 3

Case 1:17-cv-00480 Document 10 Filed 01/29/17 Page 4 of 5 PageID #: 92 4

Case 1:17-cv-00480 Document 10 Filed 01/29/17 Page 5 of 5 PageID #: 93

CERTIFICATE OF SERVICE

I, Michael Wishnie, hereby certify that on January 29, 2017 the foregoing motion for a stay of removal and accompanying documents were filed through the CM/ECF system and will be sent by U.S. Mail to the parties at the addresses below.

Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001

U.S. Attorney’s Office for the Eastern District of New York Attn: Civil Process Clerk 271 Cadman Plaza East Brooklyn NY 11201

Office of the General Counsel US Department of Homeland Security Washington, D.C. 20528

Secretary of DHS John Kelly US Department of Homeland Security Washington, D.C. 20528

Acting CBP Commissioner Kevin K. McAleenan US Department of Homeland Security Washington, D.C. 20528

James T. Madden, Field Director New York Field Office, US CBP 1 World Trade Center Suite 50.800 New York, NY 10007-0101

President Donald Trump 1600 Pennsylvania Ave NW Washington, DC 20500

s/ Michael Wishnie Michael Wishnie, Supervising Attorney Jerome N. Frank Legal Services Organization Yale Law School New Haven, CT 06511 Phone: (203) 436-8971 Fax: (203) 432-1426

5

 </s> Case 1:17-cv-00480 Document 14 Filed 01/29/17 Page 1 of 3 PageID #: 100

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWAI, on behalf of themselves and others similarly situated,
Petitioners,
- against -
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; JAMES T. MADDEN, New York Field Director, CBP,
Respondents.

17 Civ. 480 (AMD) EMERGENCY MOTION

EMERGENCY MOTION FOR DECLARATORY RELIEF TO CLARIFY THE APPLICABILITY OF THE ORDER DATED JAN. 28, 2017 TO INCOMING LAWFUL
PERMANENT RESIDENT AND MEMBER OF PETITIONER CLASS MARYAM MIKANIKI

Case 1:17-cv-00480 Document 14 Filed 01/29/17 Page 2 of 3 PageID #: 101

MARYAM MIKANIKI is a person with interest in this litigation, as a lawful permanent resident of the United States and an Iranian national. As a holder of an immigrant visa, she is a member of the petitioning class on whose behalf this proceeding was brought. Ms. Mikaniki will land at John F. Kennedy International Airport (“JFK Airport”) at approximately 6:35 pm on January 29, 2017. Currently, she is a passenger on Alitalia flight 610, which left Rome for New York City earlier today.
On January 28, 2017, this Court issued a stay of the executive order, which, among other things, enjoined removal of immigrants from Iran who have valid immigrant visas. See Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq Alsshawi v. Donald Trump, et. al, No. 17 Civ. 480 (AMD) (E.D.N.Y.) (January 29, 2017); see also Mazdak Pourabdollah Tootkaboni and Arghavan Louhghalam, v. Donald Trump, CV No. 17-cv-10154 (January 29, 2017) (D. Mass) (enjoining the removal or detention of lawfully present immigrants).
Ms. Mikaniki was born on March 29, 1975 in Iran. Her husband is a United States citizen, and in 2013, he sponsored Ms. Mikaniki for permanent residence in the United States. On October 21, 2013, she was granted conditional permanent residence by the U.S. Citizenship and Immigration Services (“USCIS”). On September 21, 2016, USCIS removed the conditions on her permanent residence. In late 2016, she applied for naturalization. That application is currently pending. Ms. Mikaniki currently resides in Brooklyn, New York. She will seek re-entry into the U.S. later today but has justifiable concern that, given the present uncertainty and conflicting information relating to the above executive order, U.S. government officials may detail her or bar her re-entry based upon that executive order.
PRAYER FOR RELIEF WHEREFORE, Ms. Mikaniki respectfully moves this Court for an order confirming that the she is a member of the class of persons whose removal and detention are enjoined by the

2

13047935.1

Case 1:17-cv-00480 Document 14 Filed 01/29/17 Page 3 of 3 PageID #: 102

decisions in Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq Alsshawi v. Donald

Trump, et. al, No. 17 Civ. 480 (AMD) (E.D.N.Y.) (January 29, 2017) and Mazdak Pourabdollah

Tootkaboni and Arghavan Louhghalam, v. Donald Trump, CV No. 17-cv-10154 (January 29,

2017) (D. Mass) (enjoining the removal or detention of lawfully present immigrants). Ms.

Mikaniki is therefore entitled to enter the United States under the laws and regulations governing

Lawful Permanent Resident immigrant visa holders, and cannot be detained or removed pursuant

to the Executive Order.

DATED:

New York, New York January 29, 2017

Of Counsel: Aaron Morris1 Tanisha L. Massie1 Immigration Equalit 40 Exchange Place New York, NY 1000

Respectfully submitted,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP
/s/Jennifer L. Colyer Jennifer L. Colyer
One New York Plaza New York, New York 10004 (212) 859-8285 (telephone) (212) 859-4000 (facsimile) (917) 549-3747 (cellphone) jennifer.colyer@friedfrank.com
Attorneys for Member of Petitioner Class Maryam Mikaniki

1 Admitted to practice in New York but not admitted to practice in the U.S. District Court for the Eastern District of New York.

3

13047935.1

Case 1:17-cv-00480 Document 14-1 Filed 01/29/17 Page 1 of 2 PageID #: 103

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWAI, on behalf of themselves and others similarly situated,
Petitioners,
- against -
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; JAMES T. MADDEN, New York Field Director, CBP,
Respondents.

17 Civ. 480 (AMD) [PROPOSED] ORDER

ANN DONNELLY, District Judge. WHEREAS MARYAM MIKANIKI is a member of the petitioning class; and WHEREAS Ms. Mikaniki will land at John F. Kennedy International Airport (“JFK Airport”) at approximately 6:35 pm on January 29, 2017; and WHEREAS on January 28, 2017, this Court issued a stay of the January 27, 2017 executive order, which, among other things, enjoined removal of immigrants from Iran who have valid immigrant visas; IT IS HEREBY ORDERED that Ms. Mikaniki, being a member of the class of petitioners in this proceeding, pursuant to the orders entered in Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq Alsshawi v. Donald Trump, et. al, No. 17 Civ. 480 (AMD) (E.D.N.Y.) (January 29, 2017) and Mazdak Pourabdollah Tootkaboni and Arghavan

Case 1:17-cv-00480 Document 14-1 Filed 01/29/17 Page 2 of 2 PageID #: 104

Louhghalam, v. Donald Trump, CV No. 17-cv-10154 (January 29, 2017) (D. Mass), may not be detained or removed pursuant to the January 27 executive order.

SO ORDERED.

Dated: Brooklyn, New York January __, 2017

_______________________________ Ann M. Donnelly United States District Judge

2

 </s> Case 1:17-cv-00480 Document 6 Filed 01/28/17 Page 1 of 5 PageID #: 48

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI,
on behalf of themselves and others similarly situated,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; JAMES T. MADDEN, New York Field Director, CBP,
Respondents.

Emergency Motion for Stay of Removal Case No. 1:17-cv-00480
Date: January 28, 2017

PETITIONERS’ EMERGENCY MOTION FOR STAY OF REMOVAL Pursuant to Federal Rule of Civil Procedure 7(b)(1) and Local Rule 7.1, Petitioners Hameed Khalid Darweesh, Haider Sameer Abdulkhaleq Alshawi, and class members file this emergency motion respectfully requesting that the Court immediately stay their removal from the United States during the pendency of their habeas petition. In early January 2017, Petitioners were both granted valid entry documents from the federal government to enter the United States. However, on the evening of January 27, 2017, U.S. Customs and Border Protection (“CBP”) blocked both Petitioners from exiting John F. Kennedy International Airport (“JFK Airport”) and detained Petitioners therein solely pursuant to an executive order issued on January 27, 2017 by
1

Case 1:17-cv-00480 Document 6 Filed 01/28/17 Page 2 of 5 PageID #: 49
President Donald J. Trump. Petitioners filed a habeas petition and motion for class certification in the early morning on January 28, 2017, arguing that their continued detention violates their Fifth Amendment procedural and substantive due process rights, is ultra vires under the immigration statutes, and violates the Administrative Procedure Act. Petitioner Darweesh was released from CBP custody subsequent to the filing of the habeas petition in this case, but, on information and belief, CBP continues to hold Petitioner Alshawi and other members of the proposed class, including dozens and dozens other individuals currently detained at JFK Airport. Further, Respondents’ continued detention of members of the proposed class is part of a widespread policy, pattern, and practice applied to many refugees, arriving aliens and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States, but who have been or will be detained at ports of entry and denied entry to the United States on the basis of the January 27 Executive Order.
Therefore, on behalf of themselves and all others similarly situated putative class members, Petitioners respectfully move this Court to immediately grant a class-wide stay of removal during the pendency of this habeas petition for the reasons stated in the attached Memorandum of Law.
DATED: January 28, 2017 New Haven, Connecticut
Respectfully submitted, /s/ Michael J. Wishnie Michael J. Wishnie (MW 1952) Muneer I. Ahmad† Elora Mukherjee (EM 4011)
2

Case 1:17-cv-00480 Document 6 Filed 01/28/17 Page 3 of 5 PageID #: 50

Omar C. Jadwat** Lee Gelernt (LG-8511) Cecillia D. Wang (CW-8359) AMERICAN CIVIL LIBERTIEs UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2600 ojadwat@aclu.org lgelernt@aclu.org cwang@aclu.org
Mark Doss Rebecca Heller Julie Kornfeld Stephen Poellot INTERNATIONAL REFUGEE ASSISTANCE PROJECT URBAN JUSTICE CENTER 40 Rector St, 9th Floor New York, NY 10006 Tel. (646)-602-5600 mdoss@refugeerights.org bheller@refugeerights.org jkornfeld@refugeerights.org spoellot@refugeerights.org

David Chen, Law Student Intern* Jordan Laris Cohen, Law Student Intern* Susanna Evarts, Law Student Intern* Aaron Korthuis, Law Student Intern* Jordan Laris Cohen, Law Student Intern* Zachary-John Manfredi, Law Student Intern* My Khanh Ngo, Law Student Intern* Megha Ram, Law Student Intern* Victoria Roeck, Law Student Intern* Thomas Scott-Railton, Law Student Intern* Emily Villano, Law Student Intern* Elizabeth Willis, Law Student Intern* Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520-9090 Phone: (203) 432-4800 Fax: (203) 432-1426 michael.wishnie@yale.edu
Jennifer Chang Newell† Cody H. Wofsy† AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Tel. (415) 343-0770 jnewell@aclu.org cwofsy@aclu.org

3

Case 1:17-cv-00480 Document 6 Filed 01/28/17 Page 4 of 5 PageID #: 51

Karen C. Tumlin† Nicholas Espíritu† Melissa S. Keaney† Esther Sung† NATIONAL IMMIGRATION
LAW CENTER 3435 Wilshire Boulevard, Suite 1600
Los Angeles, CA 90010 Phone: (213) 639-3900
tumlin@nilc.org espiritu@nilc.org
keaney@nilc.org sung@nilc.org

Justin B. Cox† NATIONAL IMMIGRATION LAW CENTER 1989 College Ave. NE Atlanta, GA 30317 Phone: (678) 404-9119 cox@nilc.org

Jonathan Polonsky Kilpatrick Townsend & Stockton LLP 1114 Avenue of the Americas New York, NY 10036-7703 Tel. (212) 775 8703 jpolonsky@kilpatricktownsend.com

**Application for admission forthcoming. * Motion for law student appearance forthcoming. † Motion for admission pro hac vice forthcoming. †† For identification purposes only. This motion has been prepared by a clinic operated by Yale Law School, but does not purport to present the school’s institutional views, if any.

Counsel for Petitioners

4

Case 1:17-cv-00480 Document 6 Filed 01/28/17 Page 5 of 5 PageID #: 52

CERTIFICATE OF SERVICE

I, Michael Wishnie, hereby certify that on January 28, 2017 the foregoing motion for a stay of removal and accompanying documents were filed through the CM/ECF system and will be sent by FedEx to the parties at the addresses below.

Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001

U.S. Attorney’s Office for the Eastern District of New York Attn: Civil Process Clerk 271 Cadman Plaza East Brooklyn NY 11201

Office of the General Counsel US Department of Homeland Security Washington, D.C. 20528

Secretary of DHS John Kelly US Department of Homeland Security Washington, D.C. 20528

Acting CBP Commissioner Kevin K. McAleenan US Department of Homeland Security Washington, D.C. 20528

James T. Madden, Field Director New York Field Office, US CBP 1 World Trade Center Suite 50.800 New York, NY 10007-0101

President Donald Trump 1600 Pennsylvania Ave NW Washington, DC 20500

s/ Michael Wishinte Michael Wishine, Supervising Attorney Jerome N. Frank Legal Services Organization Yale Law School New Haven, CT 06511 Phone: (203) 436-8971 Fax: (203) 432-1426

5

 </s> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

-------------------------------X Docket#

HAMEED KHALID DARWEESH, et al.,: 17-cv-00480-AMD

:

Plaintiffs,

:

- versus -

: U.S. Courthouse

: Brooklyn, New York

:

DONALD TRUMP, et al.,

: January 28, 2017

Defendants

:

-------------------------------X

TRANSCRIPT OF CIVIL CAUSE FOR EMERGENCY MOTION

FOR STAY OF REMOVAL

BEFORE THE HONORABLE ANN M. DONNELLY

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Plaintiffs:

Lee Gelernt, Esq.

Omar Jadwat, Esq.

Davis Hausman, Esq.

American Civil

Liberties Union Foundation

Immigrants' Rights Project

125 Broad Street, 18th Fl

New York, NY 10004

For the Defendants:

Robert L. Capers, Esq. United States Attorney

BY: Susan Riley, Esq. Elliot M. Schachner, Esq. Scott Dunn, Esq. Assistant U.S. Attorney 271 Cadman Plaza East Brooklyn, New York 11201

Gisela Westwater, Esq. U.S. Department of Justice Civil Division Office Of Immigration Litigation - District Court PO Box 868 Ben Franklin Station Washington, DOCUMENT 20044

Transcription Service:

Transcriptions Plus II, Inc. 61 Beatrice Avenue West Islip, New York 11795 laferrara44@gmail.com

Proceedings recorded by electronic sound-recording, transcript produced by transcription service

2 Proceedings

1

THE CLERK: All rise.

2

THE COURT: Good evening, everybody. You can

3 sit down.

4

THE CLERK: In the matter of Hameed Khalid

5 Darweesh and Haider Sameer Abdulkhaleq Alshawi v. the

6 respondents, President Donald Trump, Department of

7 Homeland Security, Customs and Border Protection,

8 Secretary John Kelly, Commissioner Kevin McAleenan and

9 Director James Madden.

10

Counsels, state your appearance, petitioner

11 first.

12

MR. GELERNT: Lee Gelernt from the National

13 Office of the ACLU.

14

THE COURT: Hi. Who is with you?

15

MR. GELERNT: This is Omar Jadwat, and Davis

16 Hausman, both --

17

THE COURT: Okay.

18

MR. GELERNT: -- from ACLU.

19

THE COURT: Okay.

20

MS. RILEY: Good evening, your Honor.

21

Susan Riley from the U.S. Attorney's Office,

22 Eastern District. Seated with me is Scott Dunn, Chief of

23 our Immigration Practice and Elliot Schachner, who is

24 also an immigration expert.

25

THE COURT: Okay.

Transcriptions Plus II, Inc.

3 Proceedings

1

MS. RILEY: And also seated is Colleen Piccone

2 (ph.), a representative from Customs and Border

3 Protection.

4

THE COURT: Okay. Do we have somebody on the

5 phone?

6

MS. RILEY: Yes, we do. We have Gisela

7 Westwater from the District Court Section of the Office

8 of Immigration Litigation.

9

THE COURT: All right.

10

We're here considering an emergency stay

11 application in a removal case. I just have a couple of

12 questions about status. The two-named plaintiffs, what

13 is their status right now?

14

MR. GELERNT: Your Honor, one of them has been

15 released. We don't know whether the government is going

16 to take any action against him but he was released this

17 afternoon.

18

We are not sure as of this moment about the

19 second one. The government may be able to say more about

20 the second one.

21

MS. RILEY: We are sure, your Honor and he has

22 been released.

23

THE COURT: So both have been released. Let me

24 just ask you, are you opposing the application for a

25 stay?

Transcriptions Plus II, Inc.

4 Proceedings

1

MS. RILEY: Well, we believe it's moot, your

2 Honor. Both of the named plaintiffs have been released

3 and there is no need for the issuance of a stay.

4

THE COURT: What about all the other people in

5 the class? Just because, I just want to be clear that I

6 have the class members here.

7

The petitioners are asking for certification of

8 a class that consists of all individuals with refugee

9 applications, approved by U.S. Citizenship and

10 Immigration Services, as part of the U.S. Refugee

11 Admissions Program, holders of valid immigrant and non-

12 immigrant visas, and other individuals from Iraq, Syria,

13 Iran, Sudan, Lybia, Somalia, and Yemen legally authorized

14 to enter the United States but who have been or will be

15 denied entry to the United States on the basis of the

16 January 27th, 2017 executive order.

17

So, I am assuming that there are going to be

18 more people that this executive order has an impact on,

19 is that correct?

20

MS. RILEY: Yes, your Honor.

21

THE COURT: All right. So, while the two-named

22 -- well, my second question is, is there any assurance

23 that there won't be some effort to remove the people that

24 are already here? Is there any assurance by that on the

25 part of the government?

Transcriptions Plus II, Inc.

5 Proceedings

1

MS. RILEY: Do you mean the two-named

2 plaintiffs?

3

THE COURT: Yes.

4

MS. RILEY: I have no information in that

5 regard.

6

THE COURT: Okay.

7

MS. RILEY: And part of the government's

8 position, and I'm going to let Ms. Westwater take the

9 lead in arguing this, is that this has unfolded with such

10 speed, both the executive order and the actions taken

11 pursuant to the executive order, that we haven't had an

12 opportunity to address any of the issues, the important

13 legal issues, the status of anyone who may be at the

14 airport.

15

THE COURT: Well, that's why I really started

16 by asking if you really oppose the stay because if you

17 haven't had a chance to address it -- I mean, if I don't

18 grant the stay, there are while not perhaps not these

19 two-named plaintiffs, there are, it sounds to me, like a

20 host of people who will be affected by this executive

21 order and I think just based on what the petitioners have

22 alleged today, is not something that's just -- that is

23 something that is very real.

24

And I do recognize that you haven't really had

25 a chance to review all of this but that's, I think, why

Transcriptions Plus II, Inc.

6 Proceedings

1 they're asking for the stay.

2

Now is there something else you wanted to say?

3

MR. GELERNT: No, your Honor.

4

THE COURT: Okay.

5

MR. GELERNT: I just wanted to know if you

6 wanted to hear from me yet.

7

THE COURT: Not just yet. I do --

8

MR. GELERNT: Okay. That's fine, your Honor.

9

THE COURT: I do want to hear -- and I'm sorry,

10 who is on the phone?

11

MS. RILEY: Ms. Westwater.

12

MS. WESTWATER: Judge, this is --

13

THE COURT: Ms. Westwater?

14

MS. WESTWATER: -- Gisela Westwater.

15

THE COURT: Yes.

16

MS. WESTWATER: Yes.

17

THE COURT: Did you have anything you wanted to

18 say just on that subject?

19

MS. WESTWATER: I believe at this time, your

20 Honor -- I mean, the government's position is that the

21 two-named plaintiffs have been dismissed. That the

22 government can't make any assurances as to any other

23 individuals who are not named plaintiffs. They all have

24 very different situations. We believe that a stay at

25 this time would be inappropriate first because these are

Transcriptions Plus II, Inc.

7 Proceedings

1 arriving aliens.

2

THE COURT: Well, I am going to stop you right

3 there. So, I think everybody agrees that under Supreme

4 Court precedent that considering the application, I am

5 going to apply the traditional four-factor test. You

6 agree with me on that, don't you?

7

MS. WESTWATER: I am sorry, in which four-

8 factor --

9

THE COURT: The four-factor test that you apply

10 for the traditional four-factor test for a temporary

11 restraining order. So, I'll just go through them for

12 you; likelihood of success on the merits, and really one

13 of the most significant factors which is irreparable

14 injury to the petitioner, the likelihood of injury to the

15 opposing party, which is you, and where the public

16 interest lies. And when the government is the opposing

17 party, those two final factors, the likelihood of injury

18 to the opposing party and the public interest merge.

19

So, I'm just -- let's just go right to that

20 irreparable injury to the petitioner. What is your

21 argument that there won't be irreparable injury to either

22 the petitioner or the members of the putative class?

23

MS. WESTWATER: Your Honor, we believe that's

24 something that is difficult without having the named

25 plaintiffs in front of us, and what exactly are

Transcriptions Plus II, Inc.

8 Proceedings

1 plaintiffs arguing are the various statuses of these

2 individuals?

3

THE COURT: Well, let me just put it this way.

4 I mean, if they had comes in two days ago, we wouldn't be

5 here, am I right?

6

MS. WESTWATER: That would seem to be correct,

7 your Honor.

8

THE COURT: So presumably, and at least by

9 definition of the class that the petitioners are asking

10 to be certified, these are all people that have been

11 through a vetting process and at least these two named

12 petitioners have been through a very extensive -- I think

13 one of them, and I'm sure you'll correct me if I am

14 wrong, first applied in 2014. And our own government,

15 presumably, approved their entry into this country.

16

And so, that really goes to what is the

17 likelihood of injury to the government but the

18 petitioners have also alleged that not just these named

19 petitioners but members of the class, face real

20 irreparable injury and in some cases, people whose

21 families are already here, people who face threats if

22 they're returned to their country of origin, the named

23 plaintiffs have been -- according to the petition, have

24 been specifically targeted with violence in their own

25 countries.

Transcriptions Plus II, Inc.

9 Proceedings

1

So, what I would like you to do, whether it's

2 you or whether it's one of your colleagues at the table,

3 is just explain to me how it is that the members of this

4 class will not suffer irreparable injury if I don't grant

5 the stay.

6

MS. WESTWATER: Your Honor, the difference as

7 we said -- there's a difference within the different

8 categories. This is an overly broad request --

9

THE COURT: But just that straightforward

10 question, how can you argue that they won't suffer

11 irreparable injury? I mean, sure you could argue about

12 who is an appropriate member of the class but that's not

13 my question. The identified members that the petitioners

14 have identified are all people that there's no question

15 about them being dangerous or anything like that, at

16 least as far as I understand. So, I mean, I don't hear

17 you to be arguing that there's some particular risk posed

18 by this class of people. Am I right about that?

19

MS. WESTWATER: Your Honor, to the two-named

20 plaintiffs --

21

THE COURT: One of them worked for the

22 government. One of them worked for the United States

23 government, I believe, or at least the family members

24 did.

25

MS. WESTWATER: Yes, your Honor. However, the

Transcriptions Plus II, Inc.

10 Proceedings

1 proposed class is broader and would include --

2

THE COURT: Yeah, but --

3

MS. WESTWATER: -- tourists, would include

4 people who are not making a claim, who have -- are coming

5 here on a tourist visa which would have a very different

6 interest and very concerns regarding harm.

7

THE COURT: Well, let me just ask, are tourist

8 visas included in this, as well, in your class?

9

MR. GELERNT: Yes, your Honor.

10

THE COURT: Okay.

11

MR. GELERNT: There is a broad range but we

12 would say that they've all been vetted and all been given

13 legal permission to come here. So, I think there's no

14 question that they've been vetted. And just with respect

15 to the different classes, I think your Honor has

16 basically put her finger on it, that that may end up

17 being different arguments on the merits but as to the

18 question that you're getting at, a factual question, are

19 they going to face irreparable harm, absolutely. I mean,

20 they are facing real harm because they are going back to

21 some of the most dangerous countries.

22

And as to your question about do we know

23 whether anybody could be sent back, I mean the government

24 was very candid saying that --

25

THE COURT: You don't know.

Transcriptions Plus II, Inc.

11 Proceedings

1

MR. GELERNT: -- they can't give assurances and

2 we also just were told that the government is threatening

3 to put someone back on a plane at 9:20 and we don't even

4 know what's going on around the country. There are so

5 many people -- and so we are here, what we think is a

6 fairly modest request to the Court, to just keep things

7 in place until both sides can brief it.

8

We don't expect your Honor to figure out the

9 merits now. I mean, some of the merits issues are eye

10 glazing, to be truthful. We think we have the better of

11 it but certainly on irreparable harm, I haven't heard the

12 government say why they can't keep the people here. It's

13 not as if these people weren't vetted. I mean, they were

14 vetted, given legal permission and they were just caught

15 in transit. They took off before the executive order was

16 signed. They landed after. And so, they were in a

17 horrible position. They were on U.S. soil and they

18 certainly can't be sent back without, at a minimum, an

19 asylum hearing and a Convention Against Torture -- I mean

20 that is basic law.

21

THE COURT: Do you have a sense of how many

22 people we're talking about? that was another question

23 that I had.

24

MR. GELERNT: Yeah. You know, your Honor, we

25 believe that it's upwards of a hundred to 200. The

Transcriptions Plus II, Inc.

12 Proceedings

1 government won't give us that information. They won't

2 tell us who the people are, so it makes it very

3 difficult.

4

And I was just passed a note that the

5 government is literally as we speak, putting someone back

6 on a plane back to Syria.

7

THE COURT: All right. Do you have anything

8 else you want to say from the government?

9

MS. WESTWATER: Yes, your Honor. It appears

10 the question seems to be what is irreparable harm. As

11 we've argued, for people coming here on a tourist visa --

12

THE COURT: But that's one category but this is

13 just an emergency stay and so I am interrupting you

14 because I'm not going to make the decision based on some

15 person that has not identified who might have a tourist

16 visa.

17

Apparently, there is somebody who they're

18 putting on a plane -- what do you think about that --

19 back to Syria? Irreparable harm?

20

MS. WESTWATER: Your Honor, the government does

21 not have sufficient information about this person or the

22 circumstances, your Honor, to be able to have a position.

23 And I'm sorry, as your Honor had suggested, we all do

24 require additional time to have more facts.

25

THE COURT: Well, that's exactly why that I am

Transcriptions Plus II, Inc.

13 Proceedings

1 going to grant the stay. So, the stay is --

2

UNIDENTIFIED SPEAKER: (Inaudible).

3

THE COURT: No, no, no, no, not a word. Not a

4 word.

5

The stay is granted. I will sign it and I also

6 find, just so the record is clear, that each of these

7 four factors is met. Irreparable harm has been

8 established. There's no likelihood of injury to the

9 opposing party, nor is there any problem to the public

10 interest and the likelihood of success on the merits,

11 which we have not discussed, but I have reviewed the

12 submissions and for purposes of this application, there

13 is a likelihood of success on the merits.

14

I will also say that there is a likelihood with

15 respect to the certification of the class, that the class

16 will be certified.

17

So, for all of those reasons, I will sign the

18 order which includes the putative class and I think the

19 only thing that is left to do is to pick a date where you

20 can present your arguments more fully. Do you have one

21 proposed?

22

MR. GELERNT: We will proceed on whatever

23 schedule the Court wants us to.

24

THE COURT: All right. Well, I think it really

25 is going to depend in part on how much time it's going to

Transcriptions Plus II, Inc.

14 Proceedings

1 take. I think the government hasn't really had a full

2 chance to think about this. So, what time sounds good to

3 you?

4

MS. WESTWATER: I would ask --

5

THE COURT: Do you want --

6

MS. WESTWATER: -- if anyone in the -- if my

7 colleagues from the United States Attorney's Office would

8 have a potential proposed schedule?

9

THE COURT: What about Friday morning for an

10 argument, next Friday morning, is that too soon?

11

MS. RILEY: Yes.

12

THE COURT: Okay.

13

MS. RILEY: Yes, it is, your Honor.

14

THE COURT: Okay. So, let me just look at my

15 calendar because I may have a few other cases.

16

MS. RILEY: So, your Honor, we would request an

17 opportunity to submit papers.

18

THE COURT: Yes.

19

MS. RILEY: We do not understand the Court to

20 be certifying a class at this time.

21

THE COURT: I'm not at this time. It is for

22 purposes of the stay, otherwise I will be signing and

23 listening to application from 100 people and it sounds to

24 me like the class is pretty well defined, as outlined in

25 the petitioner's papers and so, it's what I specified at

Transcriptions Plus II, Inc.

15 Proceedings

1 the beginning.

2

So, do you have a proposed order?

3

MR. GELERNT: Um --

4

THE COURT: It's okay if you don't. I have one

5 but --

6

MR. GELERNT: We can get it to you in 15

7 minutes if you need that.

8

THE COURT: I think I've got it. I just need

9 to put who the class is.

10

MR. GELERNT: Your Honor, can I make two

11 points?

12

THE COURT: Yes.

13

MR. GELERNT: The first is, we are not pushing

14 any schedule on the Court and want to proceed as the

15 Court feels appropriate. The only thing that we would

16 ask because I think the government is going to ask for

17 two weeks, it sounds as if the government is going to

18 keep all these hundreds of people who have been given

19 lawful status in detention. That's a long time.

20

And so, if the government is going to release

21 them on supervision, that would be the best of all

22 worlds. I think since they were, by our government,

23 given lawful status, if you're not going to release them,

24 then we would ask that you proceed as quickly as

25 possible.

Transcriptions Plus II, Inc.

16 Proceedings

1

The only thing I wanted --

2

THE COURT: Well, let me just ask first of all,

3 are you in a position to say that right now?

4

MS. RILEY: We are not. We are not, your

5 Honor, but what we are in a position to do is point out

6 that today, the named plaintiffs were released.

7

THE COURT: Right.

8

MS. RILEY: And to the extent that requests are

9 made, we will act on them --

10

THE COURT: Well, obviously the --

11

MS. RILEY: -- one way or the other.

12

THE COURT: -- petitioners do have an interest.

13 If somebody is not being released, I guess I'll just hear

14 from you, if that happens.

15

MR. GELERNT: And that's how -- I mean, we

16 would ask that the government designate someone that we

17 could send that information to because I think right now,

18 we don't even have a person --

19

THE COURT: I think that's probably a good

20 idea. If you all can work out somebody with whom the

21 petitioner' can communicate with specific individuals.

22

MR. GELERNT: Right. And, you know, the other

23 problem for us as the government knows is, the government

24 is not letting us see all the people in all the airports.

25 If they want to provide a list on, you know, why they're

Transcriptions Plus II, Inc.

17 Proceedings

1 going to release some and not the others, but right now

2 we're sort shooting -- I mean, what's happened is through

3 sort of happenstance, we found people at airports.

4

THE COURT: What do you want me to do?

5

MR. GELERNT: If the government would provide a

6 list of all the people and whether they're going to

7 release them or not, I think that would be the best

8 thing.

9

MS. RILEY: We don't know. Your Honor, we

10 don't know.

11

THE COURT: But can you provide at least a list

12 of who is being detained?

13

MS. RILEY: Well, your Honor, that is actually

14 more difficult than it sounds. People are coming in all

15 the time.

16

THE COURT: Well, why don't you try to work it

17 out? Get him a list of people that are detained.

18

MS. RILEY: We can try to work it out.

19

THE COURT: All right? Sorry. Go ahead.

20

MR. SCHACHNER: Just one question just to

21 define the contours of the stay. So, it's clear the stay

22 is in terms of not removing anyone.

23

THE COURT: Correct.

24

MR. SCHACHNER: But is the stay also to prevent

25 any sort of processing of these foreign nationals? For

Transcriptions Plus II, Inc.

18 Proceedings

1 example, if the processing would lead to their --

2

THE COURT: I don't think anybody is asking

3 that. You're not asking --

4

MR. SCHACHNER: I want to be clear on the

5 kind --

6

MR. GELERNT: I mean, if you're talking about

7 you're going to process them and then admit them in their

8 same status, I mean, we obviously wouldn't object to that

9 but that's not what I understand you to be saying.

10

MR. SCHACHNER: I just want to be clear what

11 the --

12

MR. GELERNT: I think we want to preserve the

13 status quo.

14

THE COURT: I think that's the whole point of

15 this hearing is to preserve this status quo and, you

16 know, if this had been two days ago, we would not be

17 here. So, I don't think it's unduly burdensome to

18 identify the people that we're talking about here within

19 the specific class. And I don't think it's unduly

20 burdensome to designate somebody with whom the

21 petitioners can communicate.

22

This is not a situation as I understand it,

23 where anybody is asking any information about anybody who

24 has previously been deemed to pose some kind of a threat

25 to national security. So, that's not the request and

Transcriptions Plus II, Inc.

19 Proceedings

1 that's not what I am saying.

2

So, I have an order but I do think it needs to

3 be amended to specify the parameters of the class.

4

MR. GELERNT: Your Honor, I am sorry, just one

5 last thing.

6

THE COURT: Going to snatch defeat from the

7 jaws of victory there?

8

MR. GELERNT: No, I hope not but I am worried

9 about the person and probably other people who are about

10 to get on the plane, whether the government could then

11 tell their offices at the --

12

THE COURT: Yeah, I'm going to direct you, if

13 there's somebody right now who is in danger of being

14 removed, I am going to direct you to communicate that I

15 have imposed a stay. Nobody is to be removed in this

16 class, okay?

17

MS. RILEY: Well, your Honor, one thing I do

18 want to point is that there is nothing preventing anyone

19 who is --

20

THE COURT: If somebody comes in and does

21 something they're not supposed to do --

22

MS. RILEY: -- and they want --

23

THE COURT: -- obviously --

24

MS. RILEY: No.

25

THE COURT: I think you know what I am talking

Transcriptions Plus II, Inc.

20 Proceedings

1 about.

2

MS. RILEY: Your Honor, there are people who

3 may request the opportunity to return to their country

4 and --

5

THE COURT: Well, I am not going to say that

6 you have to trap them here. So -- right? I mean, I

7 don't --

8

MS. RILEY: I --

9

THE COURT: I'm trying to make this as --

10 frankly, as common sense as possible. I am not directing

11 you to hold somebody against his or her will that wants

12 to go back to his or her home country. And I don't

13 understand you to be asking me to do that.

14

MR. GELERNT: No.

15

THE COURT: I think you understand the

16 parameters of the order. One person is nodding, so I am

17 going to go with yes. And I am going to draft it. But I

18 just want to make sure there's no misunderstanding. All

19 right.

20

Anything else that anybody has to say? All

21 right. Give us just a little bit of time to draft the

22 order. It won't take much.

23 (Court and clerk confer)

24

THE COURT: You know, I do have -- the order is

25 ready.

Transcriptions Plus II, Inc.

21 Proceedings

1 (Pause)

2

THE COURT: All right. So, I have signed an

3 order. We'll give you copies of the original, as soon as

4 we make them and if there's nothing else, we're done.

5 Okay. Thank you.

6

MR. GELERNT: Thank you.

7

MS. RILEY: Was a date set, your Honor?

8

THE COURT: Oh, we didn't pick a date, did we?

9

MS. RILEY: We would ask until February 10th.

10

THE COURT: February 10th for filing your

11 papers?

12

MS. RILEY: Yes.

13

THE COURT: Okay. And then how much time will

14 you need to respond?

15

MR. GELERNT: That's a long time from now.

16 We'll respond within 48 hours.

17

THE COURT: All right. So, I think February

18 12th is a holiday but --

19

MS. RILEY: February 20th, I think is a

20 holiday.

21

THE COURT: All right. Do you want some time

22 to respond -- to reply, I mean?

23

MS. RILEY: We would ask for seven days, your

24 Honor.

25

THE COURT: Okay. So, where does that take us?

Transcriptions Plus II, Inc.

22 Proceedings

1

THE CLERK: So, that puts the petitioners'

2 response at February 13th and the government's reply at

3 February -- the 20th is President's Day -- the 21st?

4

MS. RILEY: Yes. Thank you.

5

THE COURT: All right. I think that's it.

6

MR. GELERNT: Thank you.

7

(Matter concluded)

8

-o0o-

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Transcriptions Plus II, Inc.

23 C E R T I F I C A T E I, LINDA FERRARA, hereby certify that the foregoing transcript of the said proceedings is a true and accurate transcript from the electronic soundrecording of the proceedings reduced to typewriting in the above-entitled matter. I FURTHER CERTIFY that I am not a relative or employee or attorney or counsel of any of the parties, nor a relative or employee of such attorney or counsel, or financially interested directly or indirectly in this action. IN WITNESS WHEREOF, I hereunto set my hand this 30TH day of January, 2017.
AAERT CET**D 656 Transcriptions Plus II, Inc.
Transcriptions Plus II, Inc.

 </s> Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 1 of 17 PageID #: 252

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------------X HAMEED KHALID DARWEESH and, HAIDER SAMEER ABDULKHALEQ ALSHAWI,
on behalf of themselves and others similarly situated,
Petitioners,
--against—
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and JAMES T. MADDEN, New York Field Director, CBP,
Respondents. ------------------------------------------------------------------X

Case No. 1:17-cv-00480

MEMORANDUM OF LAW IN SUPPORT OF THE NEW YORK ATTORNEY GENERAL’S MOTION TO INTERVENE IN THE COMBINED PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 2 of 17 PageID #: 253
TABLE OF CONTENTS PRELIMINARY STATEMENT........................................................................................1 ARGUMENT .....................................................................................................................2
I. The NYAG Should Be Permitted to Intervene as of Right ..................................2 A. The NYAG’s Motion is Timely ..............................................................3 B. The NYAG Has a Substantial Interest in the Subject Matter of This Action .........................................................................................3 C. Disposition of the Orginial Action May Impair the NYAG’s Ability to Protect The State’s Interests ...................................................7 D. The Original Parties Cannot Adequately Protect the Interests of the State ..............................................................................................9
II. Alternatively, the NYAG Should Be Allowed to Intervene by Permission......10

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 3 of 17 PageID #: 254
TABLE OF AUTHORITIES
Page(s)
CASES
AB v. Rhinebeck Cent. Sch. Dist., 224 F.R.D. 144 (S.D.N.Y. 2004) ...............................................................................................9
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982)...................................................................................................................7
Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171 (2d Cir. 2001).......................................................................................................9
Chao v. Local 1104 Commc’ns Workers, No. CV-06-5896, 2007 WL 1231616 (E.D.N.Y. Apr. 26, 2007) ..............................................9
Commack Self–Serv. Kosher Meats, Inc. v. Rubin, 170 F.R.D. 93 (E.D.N.Y. 1996) .................................................................................................3
Common Cause New York v. Bd. of Elec., No. 16 Civ. 6122, dkt. #28 (E.D.N.Y. Jan. 30, 2017) ...............................................................2
Friends of the E. Hampton Airport, Inc. v. FAA, No. 15-CV-0441(JS)(ARL), 2016 U.S. Dist. LEXIS 25541 (E.D.N.Y. Feb. 29, 2016)...........................................................................................................3
H.L. Hayden Co. v. Siemens Med. Sys. Inc., 797 F.2d 85 (2d Cir. 1986).................................................................................................10, 12
Home Ins. Co. v. Liberty Mut. Ins. Co., No. 87 Civ. 0675 (SWK), 1990 WL 188925 (S.D.N.Y. 1990) ................................................7
Kaliski v. Bacot, 320 F.3d 291 (2d Cir. 2003).....................................................................................................10
New York v. 11 Cornwell Co., 695 F.2d 34 (2d Cir. 1982) ........................................................................................................7
New York v. Mid-Hudson Medical Group, 877 F. Supp. 143 (S.D.N.Y. 1995) ...........................................................................................7
New York v. Walkill, No. 01-Civ-0364 (CM), 2001 U.S. Dist. LEXIS 13364 (S.D.N.Y. Mar. 16, 2001) ..........................................................................................................7

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 4 of 17 PageID #: 255
Sackman v. Liggett Group, 167 F.R.D. 6 (E.D.N.Y. 1996) .................................................................................................11
Trbovich v. United Mine Workers, 404 U.S. 528 (1972)...................................................................................................................9
U.S. Postal Serv. v. Brennan, 579 F.2d 188 (2d Cir. 1978).....................................................................................................10
U.S. v. Pitney Bowes, Inc., 25 F.3d 66 (2d Cir. 1994).....................................................................................................3, 10
United States v. City of New York, 07-CV-2067, 2012 WL 314353 (E.D.N.Y. Feb. 1, 2012) .................................................10, 11
Wells Fargo Bank, N.A. v. Levin, No. 15-2773 (LDW) (AYS), 2016 U.S. Dist. LEXIS 74410, (E.D.N.Y. June 6, 2016), report and recomm. adopted by 2016 U.S. Dist. LEXIS 100508 (E.D.N.Y. July 22, 2016), .....................................................11
FEDERAL RULE OF CIVIL PROCEDURE
24(a)(2) .................................................................................................................................. passim 24(b)(1)(B) .....................................................................................................................................10 24(b)(2) ..........................................................................................................................................10

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 5 of 17 PageID #: 256
New York Attorney General Eric T. Schneiderman, on behalf of the People of the State of New York (“NYAG”), respectfully submits this Memorandum of Law in support of the NYAG’s Motion to Intervene in this combined Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief. Intervention as of right is warranted here because the NYAG satisfies the four factors set out in Federal Rule of Civil Procedure 24(a)(2). Alternatively, the NYAG should be granted permission to intervene because —in addition to these factors—intervention here would not unduly delay or prejudice the adjudication of the rights of Petitioners or Respondents, and the Proposed Complaint in Intervention (“Proposed Complaint”), attached as Exhibit A, shares common questions of law and fact with the original Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injuctive Relief (“Petition”) filed in this action.
PRELIMINARY STATEMENT On January 27, 2017, President Donald Trump issued an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“Executive Order”), which set off a chaotic series of events that has infringed the civil rights of many New York residents and continues to threaten the public health and the economic, social, and cultural welfare of New York State. As set forth in the Proposed Complaint, beginning on the night of January 27, 2017, federal agents began to detain and/or refoul individuals arriving into U.S. airports—including John F. Kennedy Airport (“JFK”) in New York City—who are nationals of the seven countries designated by the Executive Order. Still more nationals of those seven countries have been, and continue to be, unable to travel to New York State, where they live, work, study, or have family. Implementation of the Executive Order is disrupting the lives and violating the civil rights of many New York residents. It also harms interests particular to New York State. The Executive

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 6 of 17 PageID #: 257
Order threatens numerous sectors of the New York State economy, including finance and technology, that rely heavily upon the talents and contributions of immigrants—including those who are nationals of the seven countries designated by the Executive Order. The Executive Order likewise harms New York State’s academic institutions, which host some of the highest concentrations of foreign students of any in the nation; and in doing so, the Executive Order further damages the New York economy. In addition, the Executive Order harms the public health of New York State by, e.g., threatening the continuous employment of doctors supplying medical care at hospitals in some of the most impoverished neighborhoods across the state. Finally, as courts have frequently observed, the State of New York has a quasi-sovereign interest in protecting civil rights generally within its jurisdiction.
The NYAG requests that the Court allow it to intervene in the subject action to vindicate both the rights of affected New York State residents and the quasi-sovereign interests of the State, which are unique to the State and which may not be adequately represented by the Petitioners.
ARGUMENT I. The NYAG Should Be Permitted to Intervene as of Right.
Federal Rule of Civil Procedure 24(a)(2) provides that a court must grant intervention to anyone who makes a timely motion, asserts an interest relating to the subject of the action, and is situated such that disposition of the action without the movant “may as a practical matter impair or impede the movant’s ability to protect its interest”—“unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2); see, e.g., Common Cause New York v. Bd. of Elec., No. 16 Civ. 6122, dkt. #28 (E.D.N.Y. Jan. 30, 2017) (Garaufis, J.) (granting NYAG motion to intervene). As discussed infra, the NYAG is entitled to intervene as of right in this action, having satisfied all four requirements under Rule 24(a)(2).
-2-

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 7 of 17 PageID #: 258
A. The NYAG’s Motion is Timely. Timeliness is evaluated based on the totality of the circumstances, including: “(1) how long the applicant had notice of the interest before it made the motion to intervene; (2) prejudice to existing parties resulting from any delay; (3) prejudice to the applicant if the motion is denied; and (4) any unusual circumstances militating for or against a finding of timeliness.” United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994) (citations omitted). The NYAG’s motion is timely because it comes only four days after Petitioners commenced this action and only five days after President Trump issued the Executive Order. Courts in the Second Circuit have found intervention timely where permission was sought much longer after the original plaintiffs filed their complant. See, e.g., Commack Self-Serv. Kosher Meats, Inc. v. Rubin, 170 F.R.D. 93, 100 (E.D.N.Y. 1996) (motion to intervene as of right found timely when filed 46 days after plaintiffs amended their complaint). Further, the NYAG’s request to intervene will not delay any proceedings or prejudice the original parties’ rights. Respondents have not yet filed a responsive pleading to the Petition, and the NYAG is prepared to comply with the Court-ordered schedule for future proceedings in this matter. Petitioners have consented to the NYAG’s request to intervene, counseling against any finding of prejudice as to them. The attorney for Respondents stated that he did not consent to the NYAG’s motion to intervene but also did not object. Accordingly, under the totality of the circumstances, the NYAG’s motion is timely. B. The NYAG Has a Substantial Interest in the Subject Matter of This Action. A movant seeking intervention under Rule 24(a)(2) must establish that its interest in the litigation is “direct, substantial, and legally protectable.” Friends of the E. Hampton Airport, Inc. v. FAA, No. 15-CV-0441(JS)(ARL), 2016 U.S. Dist. LEXIS 25541, at *17-18 (E.D.N.Y. Feb. 29, 2016) (internal quotations and citations omitted). New York State has a substantial interest
-3-

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 8 of 17 PageID #: 259
in the legality and enforceability of the Executive Order because implementation of the Executive Order has already harmed, and threatens continued harm to, (i) various sectors of the New York State economy, (ii) the functioning and vitality of New York’s academic institutions, (iii) the public health and staffing of New York’s health providers, and (iv) the quasi-sovereign interest New York State has in protecting the civil rights of all of its residents.
First, the Executive Order threatens New York State’s economy through its impact upon the State’s essential industries—in particular, New York’s financial and technology sectors, which rely heavily upon the employment and contributions of foreign nationals—including many nationals of the seven countries designated by the Executive Order. The Chief Executive Officer (“CEO”) of J.P. Morgan Chase, which is headquartered in New York and employs tens of thousands of individuals in Manhattan alone, has stated that the Executive Order affects “a number of our outstanding employees—all of whom have adhered to our country’s immigration and employment processes—who have come to the United States to serve our company, clients and communities.” Similarly, Michael Corbat, CEO of Citigroup, also headquartered in New York, stated that he was “concerned about the message the executive order sends, as well as the impact immigration policies could have on our ability to serve our clients and contribute to growth.” (Proposed Compl. ¶¶ 60, 62.) Harm to New York’s leading industries affects not only the general economic health of the State, but also affects its fiscal health and the tax base upon which the State can draw for its own budget.
Second, the Executive Order harms the functioning and economic bottom line of both public and private academic institutions in New York State. The City University of New York has 807 undergraduate students currently enrolled who are affected by the Executive Order, and also currently employs 46 visa-holders affected by the Executive Order. The State University
-4-

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 9 of 17 PageID #: 260
of New York enrolls 22,140 international students from 180 different countries. Of those students, 320 are affected by the Executive Order. (See id. ¶¶ 47-48.)
New York has an interest in cultivating diverse, multicultural, and international academic communities. But the Executive Order has already limited, and will continue to limit, the ability of international students and faculty—including those who are nationals of the seven countries designated in the Executive Order—to travel to, study, and provide instruction in New York.
In addition to restricting the benefits that flow from diverse and international student bodies, the Executive Order also harms the economic health of academic institutions in New York and the State’s economy at large. In 2015, international students from the seven affected countries who were enrolled in New York State institutions contributed $30.4 million to New York State’s economy, which includes direct payments for tuition and fees and living expenses. (See id. ¶ 49.) The disruption to enrollment of international students that the Executive Order causes directly decreases the revenue flowing to those public and private academic institutions, to their detriment, and to the detriment of New York State’s taxing authorities.
The Executive Order further harms the strength of New York State’s academic institutions by limiting the ability of those institutions to attract global talent. An Associate Vice Chancellor of New York University’s Global Programs has expressed concern about being able to attract top international scholars, who may have reservations about relocating to the United States in light of the Executive Order—especially if they are from Muslim-majority countries. (See id. ¶ 44.) A similar concern was expressed by Columbia University, which noted the profound impact the Executive Order will have on the University because it bars many scholars who enrich and contribute to the institution. (See id. ¶ 43.)
-5-

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 10 of 17 PageID #: 261
Third, the Executive Order has already harmed and continues to harm the public health of New York State by limiting the State’s ability to staff its hospitals and medical institutions. For example, as a result of the Executive Order, a second-year resident at Interfaith Medical Center in Brooklyn—one of New York’s safety-net hospitals—was denied entry back into the United States when he attempted to leave Sudan after a visit to his family. The doctor is a Sudanese citizen who possesses a valid H-1B visa for foreign workers in specialty occupations. He has been unable to return to work. As the Executive Director of the Committee for Interns and Residents has reported to the NYAG, even the shortage of one physician has a significant impact on safety-net hospitals and the patients they treat. (See id. ¶ 55.)
The Executive Order also restricts the ability of New York medical institutions to freely exchange ideas and scientific knowledge with international partners. For example, the Weill Cornell Medical College in Manhattan—through a partnership with the Qatar Foundation for Education, Science, and Community Development—hosts at least 17 students who hold passports from one of the seven nations identified in the Executive Order. The ability of these students to travel to conferences or other academic gatherings has been and is being limited by the Executive Order. (See id. ¶ 53.)
But perhaps most significant to the public health of New York State is the damage the Executive Order has already done, and continues to do, to the staffing of New York’s “safety net” hospitals, which treat some of New York State’s most impoverished, high-needs communities. The Committee for Interns and Residents has identified dozens of resident physicians in New York City alone who are affected by the Executive Order, including paid and volunteer resident physicians who serve safety-net hospitals. These individuals include, for
-6-

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 11 of 17 PageID #: 262
example, the Sudanese second-year resident at Interfaith Medical Center whose circumstances are described above.
Fourth, the Executive Order harms the State of New York through its deprivation of the civil rights of New York residents. As courts have frequently observed, the State has a quasisovereign interest in protecting the civil rights of all residents within its jurisdiction. See, e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 609 (1982) (noting the “political, social, and moral damage” resulting from discrimination and observing there is “no doubt that a State could seek, in the federal courts, to protect its residents from such discrimination”).1
The extensive state interests set forth above demonstrate that New York State has a substantial interest in the subject matter of this action.
C. Disposition of the Original Action May Impair the NYAG’s Ability to Protect The State’s Interests.
“Rule 24 only requires a showing . . . that the disposition of the action may as a practical matter impair or impede [the movant’s] ability to protect” its interest, but the movant “need not demonstrate that a substantial impairment of its interest will result.” Home Ins. Co. v. Liberty Mut. Ins. Co., No. 87 Civ. 0675 (SWK), 1990 WL 188925, at *5 (S.D.N.Y. 1990) (granting motion to intervene). Disposition of this action may impair the NYAG’s ability to protect the State’s interests in at least two ways. First, an adverse ruling against the Petitioners, and in favor
1 See also New York v. 11 Cornwell Co., 695 F.2d 34, 38-40 (2d Cir. 1982) (discussing New York State’s quasi-sovereign interest in protecting the civil rights of individuals with mental disabilities), modified on other grounds, 718 F.2d 22 (2d Cir. 1983) (en banc); New York v. MidHudson Medical Group, 877 F. Supp. 143, 147 (S.D.N.Y. 1995) (discussing New York State’s quasi-sovereign interest in protecting civil rights of hearing-impaired individuals); New York v. Walkill, No. 01-Civ-0364 (CM), 2001 U.S. Dist. LEXIS 13364, at *3 (S.D.N.Y. Mar. 16, 2001) (discussing New York State’s quasi-sovereign interest in protecting the civil rights of women against gender profiling by police).
-7-

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 12 of 17 PageID #: 263
of Respondents—e.g., on the legality of the Executive Order—would impair New York’s ability to protect the interests set forth in Section I.B, supra.
Second, Petitioners filed the instant action as a putative class action, seeking to represent individuals from the seven affected countries “who are legally authorized to enter the United States, but who have been or will be denied entry to the United States” based on the Executive Order. (ECF No. 4, ¶ 7.) But New York State seeks to vindicate the interests of a swath of New York residents that is broader than the proposed class. As noted above, there are New York residents harmed by the Executive Order who have not yet been denied entry into the United States—i.e., those originating from the seven affected countries who fear leaving the U.S. in the first instance out of concern they will later be detained or not permitted to re-enter. For example, a Canadian-Libyan dual citizen born in Benghazi, and completing her Master’s Degree at NYU on an F1 visa, had made plans to complete a religious pilgrimage (Umrah) in March 2017 to Makkah, Saudi Arabia that was organized by the university’s Islamic Center. However, because the Executive Order could prevent her reentry into the U.S., she is considering cancelling her journey. (Proposed Compl. ¶ 69.)
An Iranian vice president of a leading structural engineering firm, who teaches at Columbia University and is a lawful permanent resident in the United States, faces similar harm. He has already been forced to cancel plans to travel to an engineering conference in Europe, and fears the indefinite impact of the travel ban on his personal and professional life. (Id. ¶ 42(a).)
Petitioner’s proposed class does not include all of the New York residents whose interests the NYAG seeks to protect, and an adverse or even narrow ruling by the Court on behalf of the proposed class could impair New York’s ability to protect the interests of all of its affected
-8-

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 13 of 17 PageID #: 264
residents. Cf. AB v. Rhinebeck Cent. Sch. Dist., 224 F.R.D. 144, 157 (S.D.N.Y. 2004) (holding government’s ability to protect its interest may be impaired where private plaintiffs could settle discrimination case without seeking relief as broad in scope as the government seeks).
D. The Original Parties Cannot Adequately Protect the Interests of the State. Under Rule 24(a)(2), the burden to demonstrate inadequacy of representation is “minimal.” Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 179 (2d Cir. 2001). See also Chao v. Local 1104 Commc’ns Workers, No. CV-06-5896, 2007 WL 1231616, at *2 (E.D.N.Y. Apr. 26, 2007) (“with respect to the adequacy of representation, the burden on an intervenor is to show that such representation ‘may be’ inadequate and, therefore, ‘should be treated as minimal’”) (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). The NYAG meets this minimal burden. As set forth in the Proposed Complaint, the NYAG brings this action to protect its unique interests in the State’s economy, academic institutions, public health, and the civil rights of all New York residents—interests which are not, and could not, be fully represented by the Petitioners. Furthermore, a significant number of New York’s residents are affected by the Executive Order, including more than 15,000 state residents who were born in one of the seven affected countries, and thousands of refugees resettled in New York. (Proposed Compl. ¶¶ 38-39.) Thus, any resolution of Plaintiffs’ claims without the NYAG’s participation will impact New York State’s ability to fully protect the health, economy, and well-being of all New Yorkers, and will not adequately represent the State’s interests in this action.
-9-

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 14 of 17 PageID #: 265
II. Alternatively, the NYAG Should Be Allowed to Intervene by Permission. In the alternative, the NYAG respectfully requests that the Court exercise its discretion
and permit intervention under Fed. R. Civ. P. 24(b)(1)(B). When deciding whether to permit intervention, courts consider “substantially the same factors” as for intervention as of right. Kaliski v. Bacot, 320 F.3d 291, 300 n.5 (2d Cir. 2003); see also U.S. Postal Serv. v. Brennan, 579 F.2d 188, 191-92 (2d Cir. 1978) (listing, inter alia, factors considered for intervention as of right when ruling on permissive intervention). The discussion in Section I, supra demonstrates that the NYAG has satisfied these criteria.
The “principal consideration” for permissive intervention is “whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” See Pitney Bowes, 25 F.3d at 73 (quoting Fed. R. Civ. P. 24(b)(2)). As noted above, Plaintiffs have consented to the NYAG’s motion to intervene. The Respondents have not yet filed a responsive pleading to Petitioners’ Combined Petition and Complaint, and the NYAG is prepared to comply with the schedule ordered by this Court. These facts establish that intervention will neither unduly delay this action nor prejudice the adjudication of the claims of the existing parties.
Moreover, under Rule 24(b), a timely applicant may be permitted to intervene when an applicant’s claims or defense and the main action share a common question of law or fact. Fed. R. Civ. P. 24(b); see also United States v. City of New York, No. 07-CV-2067, 2012 WL 314353, at *3 (E.D.N.Y. Feb. 1, 2012) (“first requirement” for permissive intervention is a “claim or defense that shares with the main action a common question of law or fact”), aff’d in part, vacated in part on other grounds, 717 F.3d 72 (2d Cir. 2013). Courts also consider whether intervenors “will significantly contribute to full development of the underlying factual issues” and “just and equitable adjudication of the legal question presented.” H.L. Hayden Co. v.
-10-

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 15 of 17 PageID #: 266
Siemens Med. Sys. Inc., 797 F.2d 85, 89 (2d Cir. 1986) (internal quotations omitted); see also City of New York, 2012 WL 314353, at *3 (additional factors considered include “whether the putative intervenor will benefit from the application, the nature and extent of its interests, whether its interests are represented by the existing parties, and whether the putative intervenor will contribute to the development of the underlying factual issues”).
Ultimately, permissive intervention lies in the Court’s discretion. See Wells Fargo Bank, N.A. v. Levin, No. 15-2773 (LDW) (AYS), 2016 U.S. Dist. LEXIS 74410, at *5 (E.D.N.Y. June 6, 2016), report and recomm. adopted by 2016 U.S. Dist. LEXIS 100508 (E.D.N.Y. July 22, 2016) (granting motion to intervene); Sackman v. Liggett Group, 167 F.R.D. 6, 22-23 (E.D.N.Y. 1996) (granting motion to intervene).
The Proposed Complaint shares common questions of law and fact with the Petition. Factually, both concern the implementation of the Executive Order since January 27, 2017, and its effect upon the ability to enter the United States of individuals who are nationals of the seven countries designated in the Executive Order. Both the Petition and Proposed Complaint specifically allege the harms that have befallen nationals of Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen who have sought to enter the United States. Legally, both allege that implementation of the Executive Order violates similar provisions of federal law, including the Immigration and Nationality Act, the Administrative Procedures Act, and the Due Process Clause of the Fifth Amendment to the U.S. Constitution. (Compare ECF No. 1, ¶¶ 57-74, with Ex. A, ¶¶ 77-132.)
While the NYAG’s claims are similar to those presented in the instant action, the NYAG’s Proposed Complaint also includes essential additional facts for the Court to consider. For example, in addition to seeking to protect the interests of New York residents—i.e., those
-11-

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 16 of 17 PageID #: 267 separated from their families, or unable to leave or return to the U.S. for work, academic, or personal commitments—the NYAG also seeks to vindicate New York State’s unique interests in its economy, academic institutions, public health, and the general vindication of the civil rights of its residents. These interests suggest that the NYAG is uniquely situated and would “significantly contribute to full development of the underlying factual issues.” H.L. Hayden Co., 797 F.2d at 89 (internal quotations omitted). Therefore, the NYAG’s intervention would further ensure that a “just and equitable adjudication of the legal questions presented” is reached. Id.
* For the foregoing reasons, the NYAG respectfully requests that the Court grant its motion to intervene in this action. A proposed order is attached as Exhibit B.
-12-

Case 1:17-cv-00480-CBA Document 42 Filed 02/02/17 Page 17 of 17 PageID #: 268
Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York

Of Counsel:
Justin Deabler Sania Khan Anjana Samant Assistant Attorneys General Civil Rights Bureau
Adam Pollock Mark Ladov Assistant Attorneys General

________________________
Lourdes M. Rosado* Bureau Chief Jessica Attie Special Counsel Civil Rights Bureau
Anisha Dasgupta Deputy Solicitor General
Andrew W. Amend Senior Assistant Solicitor General
Office of the New York State Attorney General
120 Broadway New York, New York 10271 Tel. (212) 416-8250 Fax (212) 416-8074 Lourdes.Rosado@ag.ny.gov

Dated:

February 2, 2017 New York, New York

* Admission pending.
-13-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 1 of 33 PageID #: 269
EXHIBIT A
NEW YORK STATE ATTORNEY GENERAL’S [PROPOSED] COMPLAINT IN INTERVENTION

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 2 of 33 PageID #: 270

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI,
on behalf of themselves and others similarly situated,
Petitioners,
PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK,
Intervenor-Plaintiff,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and JAMES T. MADDEN, New York Field Director, CBP,
Respondents. ----------------------------------------------------------X

Case No.: 17-cv-00480

[PROPOSED] COMPLAINT TO INTERVENE IN PETITION FOR WRIT OF HABEAS CORPUS
AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION

1.

On behalf of the people of the State of New York, the Office of the Attorney

General for the State of New York (“NYAG”) brings this action to protect the rights of New

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 3 of 33 PageID #: 271

York residents; the economic welfare, health, and well-being of its citizenry; and the interests of

New York’s employers, hospitals, and educational institutions. President Trump’s January 27,

2017, Executive Order is his attempt to fulfill an oft-repeated campaign promise to ban Muslims

from entering the United States. The Executive Order bars the entry of many individuals,

including New Yorkers, who are lawfully authorized to enter this country on the basis of

previously issued immigration documents. The Executive Order thus immediately suspended the

constitutional and statutory rights of many New Yorkers who are part of the fabric of our

communities.

2.

The Executive Order has caused immediate and serious harm to the people of

the State of New York. New York residents and their family members, including many who are

legally authorized to live in and enter this country, have been prevented from exercising their

legal immigration rights—and indeed have been detained at New York’s airports when they

attempted to exercise those rights—solely because of the Executive Order. The ban has harmed

New York’s educational institutions by preventing the return, employment, or enrollment of

students, faculty, and researchers. New York-based individuals have been induced to withdraw

from international academic and research conferences, and individuals from abroad have been

deterred from registering for or attending conferences here in New York. Hospitals—including

safety-net facilities providing care for some of our most vulnerable populations—have found

staff physicians, medical residents, and other health care professionals unable to return or join

their ranks. And from small businesses to large corporations, New York’s financial, technology,

and other sectors have had to limit business-related travel by employees to foreign countries in

the face of the uncertainties created by the Executive Order, injuring existing business activities

and potentially inhibiting future business ventures.

-2-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 4 of 33 PageID #: 272

3.

In the Executive Order, the President directed agencies to stop people from

entering the country because their country of origin is one of seven Muslim-majority nations; or

because they are attempting to flee personal persecution or a homeland ravaged by war, such as

Syria. And this ban applies even when the individual seeking entry is already legally authorized

to live in or enter the United States.

4.

The sweeping breadth and lack of clarity surrounding the Executive Order’s

provisions have resulted in immigration authorities implementing its provisions inconsistently.

Based on this experience, New York residents or their family members seeking entry into the

United States have been prevented from doing so; and some have canceled and been unable to

make plans to travel abroad because of a legitimate fear that they will be prevented from

boarding flights when trying to return to the United States or denied entry at the border.

JURISDICTION AND VENUE

5.

This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331,

1361. This Court has jurisdiction to issue the declaratory relief requested pursuant to the

Declaratory Relief Act, 28 U.S.C. § 2201 et seq. This Court may also grant injunctive relief

pursuant to Federal Rule of Civil Procedure 65.

6.

Venue is proper in the Eastern District of New York pursuant to 28 U.S.C.

§ 1391(b), because a substantial part of the events or omissions giving rise to this action

occurred in the Eastern District of New York.

PARTIES

7.

The intervenor-plaintiff is New York Attorney General Eric T. Schneiderman on

behalf of the People of the State of New York.

-3-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 5 of 33 PageID #: 273

8.

The defendants are:

(a) Donald J. Trump, who is sued in his official capacity as the President

of the United States;

(b) The U.S. Department of Homeland Security (“DHS”), a cabinet

department of the United States federal government with the primary

mission of securing the United States;

(c) John Kelly, the Secretary of DHS, who is sued in his official

capacity;

(d) The U.S. Customs and Border Protection (“CBP”), an agency within

DHS, with the primary mission of detecting and preventing the

unlawful entry of persons and goods into the United States;

(e) Kevin K. McAleenan, the Acting Commissioner of CBP, who is sued

in his official capacity; and

(f) James T. Madden, the Director of the New York Field Office of

CBP, who is sued in his official capacity.

STATEMENT OF FACTS

History of President Trump’s Plan to Create a Ban on the Entry of Muslims into the United States

9. On December 7, 2015, then-candidate Donald Trump issued a “Statement on

Preventing Muslim Immigration,” in which he called for a “total and complete shutdown of

Muslims entering the United States.” As of the date of this filing, this statement remains on the President’s website.1

1 Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration (last
-4-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 6 of 33 PageID #: 274
10. While campaigning, President Trump made repeated statements in support of a proposed ban on Muslims entering the United States. For instance, on March 10, 2016, candidate Trump stated in an interview, “I think Islam hates us . . . We have to be very vigilant. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States.”2
11. Later in his campaign, President Trump modified the wording of his proposal and began referring to it as a ban on individuals from certain countries. Despite the change in language, President Trump made clear that this proposal was still intended to bar Muslims from entering the United States. During an interview on July 24, 2016, President Trump was asked whether by focusing on areas with a proven history of terrorism he was pulling back from his proposed Muslim ban. President Trump responded, “I actually don’t think it’s a rollback. In fact you could say it’s an expansion. I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”3
12. After he was elected, President Trump continued to support proposals to bar Muslims from entering the United States. For instance, on December 22, 2016, President Trump was asked whether he was rethinking his plans to bar the entry of Muslims and establish a Muslim registry. President Trump responded, “You know my plans all along,” and added that a
visited Feb. 1, 2017). 2 Theodore Schleifer, Donald Trump: “I think Islam hates us,” CNN (March 10, 2016),
http://www.cnn.com/2016/03/09/politics/donald-trump-islam-hates-us/. 3 Interview with Donald Trump, Meet the Press (July 24, 2016), http://www.nbcnews.com/meet-the-
press/meet-press-july-24-2016-n615706.
-5-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 7 of 33 PageID #: 275
recent attack in Berlin, which was claimed by the Islamic State, had proven him “[o]ne hundred percent correct.”4 The January 27, 2017 Executive Order
13. On January 27, 2017, seven days after he was inaugurated, President Trump signed the Executive Order. Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017). The Executive Order asserts that numerous foreign-born individuals have been convicted of or implicated in terrorism-related crimes, among them “foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program.” The Executive Order further states that it is the policy of the United States “to protect its citizens from foreign nationals who intend to commit terrorist attacks” in the United States and “to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.”
14. The Executive Order limits the ability of non-citizens to enter the U.S in a number of ways.
15. Section 3(c) of the Executive Order suspends for 90 days the entry of immigrants and non-immigrants from countries referred to in Section 217(a)(12) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1187(a)(12). Thus, non-citizens from seven countries—Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen—may not enter the U.S. for 90 days from the date of the Executive Order, i.e., from January 27, 2017. By its terms, the ban on entry applies even to immigrants and non-immigrants who have previously been authorized to enter the country and individuals who have already been issued visas.
4 Abby Phillip and Abigail Hauslohner, Trump on the Future of Proposed Muslim Ban, Registry: “You Know My Plans,” Wash. Post (Dec. 22, 2016), https://www.washingtonpost.com/news/postpolitics/wp/2016/12/21/trump-on-the-future-of-proposed-muslim-ban-registry-you-know-myplans/?utm_term=.5ca749ae4685.
-6-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 8 of 33 PageID #: 276
16. Section 5(a) of the Executive Order also places a 120-day moratorium on the U.S. Refugee Admissions Program. Section 5(c) states that the “entry of nationals of Syria as refugees is detrimental to the interests of the United States” and thus “suspend[s] any such entry until such time as [President Trump has] determined that sufficient changes have been made to the [U.S. Refugee Admissions Program] to ensure that admission of Syrian refugees is consistent with the national interest.”
17. Section 5(e) of the Executive Order further states that, notwithstanding the 120day moratorium on refugee resettlement, the U.S. Secretaries of State and Homeland Security may, on a case-by-case basis, jointly decide to admit individuals to the United States as refugees if the admission of those individuals is in the “national interest.” Section 5(e) explicitly states that the “national interest” arises in those cases in which “the person is a religious minority in his country of nationality facing religious persecution.” Section 5(b) confirms the religious focus of the refugee moratorium by providing that, if and when the U.S. Refugee Admissions Program resumes, the Secretaries of State and Homeland Security shall “prioritize” religious-persecution refugee claims where “the religion of the individual is a minority religion in the individual’s country of nationality.” The Discriminatory and Unconstitutional Objectives of the Executive Order
18. After taking office, President Trump made clear that his purpose in issuing these immigration restrictions remained focused on Muslims. See supra ¶¶ 9-12. After signing the Executive Order on January 27, 2017, President Trump stated, “I am establishing new vetting
-7-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 9 of 33 PageID #: 277
measures to keep radical Islamic terrorists out of the United States . . . We don’t want them here.”5
19. The Executive Order on its face favors refugee applicants belonging to “minority religions” in the applicant’s country of origin. President Trump has admitted that the purpose of this provision is to favor Christians over other persons of other religions.
20. During an interview on Christian Broadcast News on January 27, 2017, President Trump stated that Christian refugee applicants would receive priority: “[Christians] have been horribly treated. Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.”6
21. President Trump’s close associates confirmed that the proposed ban on individuals from particular areas was simply a method for implementing President Trump’s Muslim ban. On January 28, 2017, the day after the signing of the Executive Order, Rudolph Giuliani, a close advisor to President Trump, was asked whether the ban had anything to do with religion. Mr. Giuliani replied, “I’ll tell you the whole history of it. So when [President Trump] first announced it, he said ‘Muslim ban.’ He called me up. He said, ‘Put a commission together.
5 Dan Merica, Trump Signs Executive Order to Keep Out “Radical Islamic Terrorists, CNN (Jan. 30, 2017), http://www.cnn.com/2017/01/27/politics/trump-plans-to-sign-executive-action-on-refugees-extreme-vetting/.
6 Dan Brody, President Trump Says Persecuted Christians Will Be Given Priority as Refugees, CBS News, The Brody File (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusivepresident-trump-says-persecuted-christians-will-be-given-priority-as-refugees.
-8-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 10 of 33 PageID #: 278
Show me the right way to do it legally.’ . . . . And what we did was, we focused on, instead of religion, danger — the areas of the world that create danger for us.”7
22. In addition to the Muslim ban, President Trump has proposed several other measures targeted specifically at Muslims.
23. During an interview on November 16, 2015, President Trump stated, “You’re going to have to watch and study the mosques, because a lot of talk is going on at the mosques.” When asked in the same interview whether he would consider shutting down mosques, he responded, “I would hate to do it, but it’s something that you’re going to have to strongly consider.”8
24. On November 20, 2015, during an interview, President Trump was asked whether he would create a database to track Muslims in the United States. He responded, “I would certainly implement that. Absolutely.” When asked whether Muslims would be legally obligated to register with that database, he stated, “They have to be—they have to be.”9
25. The First Amendment’s Establishment Clause forbids the government from favoring or disfavoring particular religions.
26. Despite this prohibition, Defendants have repeatedly demonstrated through their actions and statements, see supra ¶¶ 9-24, their intent to discriminate against Muslims on the basis of religion.
7 Available at Amy B. Wang, Trump asked for a “Muslim Ban,” Giuliani Says – and Ordered a Commission to do it “Legally,” Wash. Post (Jan. 29, 2016), https://www.washingtonpost.com/news/thefix/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says-and-ordered-a-commission-to-do-itlegally/?utm_term=.c6c40237e00d.
8 Trump: We Must Watch and Study Mosques, MSNBC (Nov. 16, 2015), http://www.msnbc.com/morningjoe/watch/trump-we-must-watch-and-study-mosques-567563331864.
9 Vaughn Hillyard, Donald Trump’s Plan for a Muslim Database Draws Comparison to Nazi Germany, NBC News (Nov. 20, 2015), http://www.nbcnews.com/politics/2016-election/trump-says-he-would-certainlyimplement-muslim-database-n466716.
-9-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 11 of 33 PageID #: 279
Defendants’ Conflicting and Changing Interpretations and Implementation of the Executive Order
27. Defendants’ publicly stated interpretation and application of the Executive Order have changed several times since it was initially signed, causing confusion and apprehension among many law-abiding individuals with ties to New York State who are unable to carry on their normal lives because of the uncertainty created by this ever-changing situation.
28. President Trump signed the Executive Order on January 27, 2017. At 4:30 p.m. that same day, the DHS issued a directive to its CBP agents to enforce the Executive Order.
29. Preliminary guidance sent by CBP to airlines on January 27, 2017 stated that “lawful permanent residents are not included [in the ban] and may continue to travel to the USA.”10
30. However, on January 28, 2017, senior officials at the White House told several press outlets that the Executive Order did cover lawful permanent residents outside the country, that such residents needed a waiver to re-enter the United States, and that waivers would be granted on a case-by-case basis. While these officials stated that lawful permanent residents in transit back to the United States could obtain a hardship exemption under the order, they revealed that they had yet to work out how to define “in transit” or “hardship.”11
31. Beginning on January 28, 2017, CBP agents began denying entry to lawful permanent residents. Other lawful permanent residents were prevented from boarding flights to the United States from the covered countries.
10 Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017), http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/index.html.
11 Michael Edison Hayden & Benjamin Siegel, Green Card Holders Fall Under Trump’s Executive Order, ABC News (Jan. 28, 2017), http://abcnews.go.com/Politics/green-card-holders-fall-trumps-executiveorder/story?id=45113679.
-10-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 12 of 33 PageID #: 280
32. On January 29, 2017, White House Chief of Staff Reince Priebus was asked in an interview about the inclusion of lawful permanent residents in the Executive Order. Priebus responded, “as far as green card holders moving forward, it doesn’t affect them.” However, when asked to clarify whether the Executive Order applies to green card holders, Mr. Priebus stated, “Well, of course it does. If you’re traveling back and forth, you’re going to be subjected to further screening.”12
33. Later, on January 29, 2017, DHS Secretary John Kelly stated, “In applying the provisions of the President’s Executive Order, I hereby deem the entry of lawful permanent residents to be in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”13
34. Differing interpretations of the Executive Order have also caused confusion for dual nationals. Dual nationals are individuals who were born in or are nationals of one of the seven countries covered by the Executive Order, but are also nationals of a second country not covered by the Executive Order.
35. On January 28, 2017, State Department officials stated that dual nationals from one of the seven covered countries would not be permitted to enter the United States.14
12 Alexandra Jaffee, Priebus: Immigration Order “Doesn’t Include” Green Card Holders, But Anyone Traveling to Banned Countries Will Be “Subjected to Further Screening,” NBC News (Jan. 29, 2017), http://www.nbcnews.com/politics/politics-news/priebus-immigration-order-doesn-t-include-green-card-holdersanyone-n713731 .
13 Press Release, DHS, Statement by Sec’y John Kelly on the Entry of Lawful Permanent Residents into the United States (Jan. 29, 2017), https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawfulpermanent-residents-united-states.
14 Dan Merica, How Trump’s Travel Ban Affects Green Card Holders and Dual Citizens, CNN (Jan. 29, 2017), https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residentsunited-states.
-11-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 13 of 33 PageID #: 281

36. However, guidance provided to airlines on January 29, 2017 stated that dual nationals are exempt from the restrictions created by the Executive Order.15

37. Most recently, upon information and belief, personnel of the U.S. Citizenship and

Immigration Services—the division of DHS that is charged with processing immigrant visa

petitions, naturalization petitions, and asylum and refugee applications—have been instructed not

to take any final action on applications from nationals of the seven countries targeted by the

Executive Order. This includes petitions for asylum, permanent residency, or naturalization.

The Executive Order Profoundly Harms New York and its Residents

38. New York is home to more than 4.4 million foreign-born residents, who

comprise 22.5 percent of the State’s population. More than 15,000 of these residents were born in one of the seven affected countries.16

39. Syria.17

In 2016, New York resettled 5,830 refugees, of whom 803 were refugees from

40. Beginning on January 27, 2017, individuals returning to New York State whose

country of origin was one of the seven designated by the Executive Order have been detained at

airports and other ports of entry pursuant to the Executive Order. The Executive Order has

significantly harmed the overall health and well-being of New York and its people, as well as its

business interests and economy.

15 Id. 16 U.S. Census Bureau, 2011-2015 Am. Cmty. Survey 5-Year Estimates, B05002: Place of Birth by Nativity and Citizenship Status; Universe: Total Population, https://factfinder.census.gov/bkmk/table/1.0/en/ACS/15_5YR/B05002/0400000US36. 17 Refugee Processing Center, Bureau of Population, Refugees, and Migration, Dep’t of State, http://ireports.wrapsnet.org (MX – Arrives by Destination and Nationality).
-12-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 14 of 33 PageID #: 282
The Executive Order Hampers Work in the Fields of Technology, Computers and Engineering
41. On January 30, 2017, more than 2,000 New York business and technology leaders signed a letter to President Trump, explaining that the Executive Order “threaten[s] those immigrants who are our current and future neighbors, friends, colleagues, customers, and even bosses.”18 Indeed, technology companies with a significant presence in New York have publicly decried the effect of the Executive Order on their businesses. For example, Google (6,000 employees in New York), Apple (4,400 employees in New York), Amazon (3,700 employees in New York), and Microsoft (2,000 employees in New York) have stated that the travel ban disrupts their operations by impeding their employees’ abilities to travel for business, affecting vendor and client relationships, and undermining their ability to compete in hiring from the global talent pool.19
42. The concerns of these industry leaders are borne out by the NYAG’s interviews of several people directly affected by the Executive Order,20 including:
a. An Iranian vice president of a leading structural engineering firm who teaches at Columbia University and is a lawful permanent resident in the United States. He has already been forced to cancel plans to travel to an engineering conference in Europe, and fears the indefinite impact of the travel ban on his personal and professional life.
18 Ltr. from Tech: NYC to Pres. Donald Trump (Jan. 30, 2017), https://www.technyc.org/trumpeo/. 19 See generally Brian Fung and Herman Wong, “Apple Would Not Exist Without Immigration”: Companies at Trump’s Tech Summit React to His Travel Ban, Wash. Post (Jan. 29, 2017), https://www.washingtonpost.com/news/wonk/wp/2017/01/29/apple-would-not-exist-without-immigrationcompanies-at-trumps-tech-summit-react-to-his-travel-ban/?utm_term=.0aee0bd707b3. 20 Unless otherwise noted, allegations concerning persons directly affected by this Executive Order are based upon interviews by the NYAG of such persons. These accounts are intended to be illustrative of the types of harm experienced by New Yorkers.
-13-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 15 of 33 PageID #: 283
b. An New York University (“NYU”) computer science Ph.D. student from Iran, who is seeking to advance his research by attending topical conferences abroad. He is now unable to make pre-planned trips to such conferences because he risks being unable to return. The Executive Order Hurts New York State’s Educational Institutions and Prevents New York Students from Continuing their Studies 43. The Executive Order stifles the open exchange of knowledge, ideas, and scholarship between New York educational institutions and the affected countries—preventing New York schools from benefitting from the talents of students and scholars from these countries. Indeed, institutions such as Columbia University have noted the profound impact this Executive Order will have on their mission because it bars many scholars—both students and faculty—from enriching and contributing to these institutions. 44. Colleges and universities within New York State are concerned that they could face difficulty attracting top international scholars, who may have reservations about relocating to the United States in light of the Executive Order—especially if they are from Muslimmajority countries. 45. New York institutions of higher learning are leaders in cultivating diverse and international academic communities. According to the Institute of International Education (“IIE”), in 2015 there were almost 1,000 foreign nationals from the affected countries studying in New York on temporary visas.21 46. For the last three years, NYU has had more international students enrolled than
21 The majority of these foreign nationals have F1 student visas or J1 visas, which afford foreign students cultural and educational exchange opportunities in the United States. This figure does not include U.S. citizens, permanent residents, undocumented people, people with deferred action status, refugees/asylees, or any students of U.S. institutions who are not physically present in the United States, such as online students residing in another country or students at a U.S. university’s international branch campus.
-14-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 16 of 33 PageID #: 284
any other university in the United States. In 2015, NYU had 15,543 international students, including students from the affected countries.
47. The State University of New York (“SUNY”) is the largest comprehensive system of higher education in the United States, with 64 college and university campuses located within 30 miles of every home, school and business in the state. SUNY enrolls 22,140 international students from 180 different countries. Of those students, 320 are affected by the Executive Order.
48. As of fall 2015, the City University of New York (“CUNY”) enrolls 245,279 students in its undergraduate program; 36.2 percent of those students are foreign born. CUNY has 807 undergraduate students who are affected by the Executive Order. CUNY also employs 46 visa-holders from the affected countries.
49. The Executive Order will inflict great financial injury on New York State, as international students provide substantial contributions to New York State’s economy. Based on information from Open Doors and the U.S. Department of Commerce, the IIE estimates that in 2015, international students from the seven affected countries who were enrolled in New York State institutions contributed $30.4 million to New York State’s economy, which includes direct payments for tuition and fees and living expenses. This figure does not include indirect economic benefits, such as the contributions of international students and scholars to innovation in academic and medical research.
50. The New York-based students who have been prevented from continuing their studies include an Iranian Ph.D. student at CUNY’s Graduate Center on a student visa, who was detained in Abu Dhabi when she tried to return to New York after winter break and was then
-15-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 17 of 33 PageID #: 285
sent back to Iran, where she remains today.22 51. The Executive Order also has prevented scholars from contributing to New
York’s rich academic community. For example, an Iranian citizen who has a Ph.D. in Mechanical Engineering was granted an EB-2 National Interest Waiver (which is provided to foreign nationals who have demonstrated that their permanent residence would be in the “national interest” of the United States) and received an offer to teach mechanical engineering at a private university in New York State, but because of the Executive Order she will be unable to relocate to New York from Iran.
52. Similarly, a British-Iraqi dual citizen who is a fellow at the Center for Global Energy Policy at Columbia University and was in London at the time the Executive Order was signed, was unable to attend a speaking engagement at Columbia University on February 1, 2017. The speaking engagement was a mandatory component of his fellowship. Conflicting messages from government agencies about the scope of the Executive Order compelled him to cancel his trip from London to New York. He has two upcoming speaking engagements in the United States at which he would be speaking in his capacity as a fellow, but is considering cancelling them because he is fearful of being detained. He is unsure whether he will be able to continue the fellowship. The Executive Order Hinders the Provision of Health Care in New York State
53. New York’s health care institutions rely on physicians who come from all over the world to provide health care to New Yorkers and to train and teach the next generation of medical professionals in New York. The Executive Order impedes those important activities by barring the entry of physicians from the affected countries, including many who are already
22 This information was confirmed in an interview with CUNY faculty.
-16-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 18 of 33 PageID #: 286
providing essential services in New York. Weill Cornell Medicine, for example, has developed a partnership with the Qatar Foundation for Education, Science and Community Development and currently has at least 17 students who hold passports from one of the seven designated countries.
54. The Executive Order has been particularly harmful to a number of New York’s “safety-net” hospitals, which treat some of New York State’s most high-needs communities. Dozens of resident physicians in New York City alone are affected by the Executive Order. This includes paid and volunteer resident physicians who serve safety-net hospitals, particularly in primary care units.
55. As a result of the Executive Order, a second-year resident at Interfaith Medical Center in Brooklyn—one of New York’s safety-net hospitals—was denied entry back into the United States when he attempted to leave Sudan after a visit to his family. The doctor is a Sudanese citizen who has a valid H-1B visa for foreign workers in specialty occupations. He has been unable to return to work. As the Executive Director of the Committee for Interns and Residents has reported to the NYAG, even the shortage of one physician has a significant impact on safety-net hospitals and the patients they treat. The Executive Order Impedes Life-Saving Medical Research in New York State
56. Individuals from the affected countries are currently engaged in critical medical research in New York, and New York has a strong interest in ensuring that such individuals remain able to contribute to medical and other research in New York going forward. The Executive Order interferes with ongoing research by preventing individuals from the affected countries from entering or re-entering the country, and by preventing them from traveling abroad to attend conferences, collaborate with other scientists and institutions, and otherwise advance their research.
-17-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 19 of 33 PageID #: 287
57. For example, the Executive Order has impeded the research of a legal permanent resident from Iran who moved to the United States to obtain her Ph.D. in biochemistry from Harvard University, and is currently researching neurobiology at the Weill Cornell Medical College of Cornell University. The ban prevents her from traveling to international scientific conferences. The ability to travel is essential to her career in advancing the treatment of human neurological diseases.
58. The Executive Order has also deterred individuals from the affected countries from continuing or beginning to conduct research in New York. An Iranian-Canadian dual citizen who is a Ph.D. student at Cornell University Medical School—and is currently conducting cutting-edge research into leukemia treatments at Memorial Sloan Kettering Cancer Center—had planned to continue her cancer research in the United States after finishing her Ph.D. in the next few months. She is now unsure whether she will be able to apply for a work visa or become a lawful permanent resident. The Executive Order Will Negatively Affect New York’s Financial Sector
59. New York City is a global hub for the finance industry, which employs nearly half a million New Yorkers, including many immigrants from the affected countries. The Executive Order directly affects such individuals and deters them from joining or staying with financial firms in New York.
60. Jamie Dimon, the Chief Executive Officer (CEO) of J.P. Morgan Chase, which is headquartered in New York and employs tens of thousands of people in Manhattan alone, has stated that the Executive Order affects “a number of our outstanding employees—all of whom have adhered to our country’s immigration and employment processes—who have come to the
-18-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 20 of 33 PageID #: 288
United States to serve our company, clients and communities.”23 61. Lloyd Blankfein, the CEO of Goldman Sachs, also headquartered in New York,
has spoken out against the Executive Order, stating that “For us to be successful, our men and women must reflect the diversity of the communities and cultures in which we operate…. We must attract, retain and motivate people from many backgrounds and perspectives.”24
62. Michael Corbat, CEO of Citigroup, which is also based in New York, has said that he is “concerned about the message the executive order sends, as well as the impact immigration policies could have on our ability to serve our clients and contribute to growth.”25 The Executive Order Harms Families
63. The Executive Order directly harms New York residents from the affected countries who are deterred from visiting their families abroad due to a legitimate fear that they will be unable to reenter the country.
64. An Iranian-Canadian scientist at the Memorial Sloan Kettering Cancer Center, whose research uses computational biology and clinical statistics to improve the lives of cancer patients, purchased an airplane ticket to visit her 75-year-old mother and elderly in-laws in Tehran over the Persian New Year in March. This family is now devastated that she and her husband must cancel their visit, because her employer has advised her not to travel outside the United States.
23 Oscar Williams-Grut and Portia Crowe, JPM Memo on Trump’s Travel Ban: We have an “Unwavering Commitment” to Our Staff, Business Insider (Jan. 30, 2017), http://www.businessinsider.com/jpmorgan-jpm-memoon-donald-trumps-travel-ban-policy-2017-1 .
24 Nathan Vardi, Goldman Sachs CEO Lloyd Blankfein Opposes Trump Travel Ban, Forbes (Jan. 30, 2017), http://www.forbes.com/sites/nathanvardi/2017/01/30/goldman-sachs-ceo-lloyd-blankfein-opposes-trump-travelban/#7775028558d1 .
25 Portia Crowe, Here’s the Strongly Worded Memo Citi’s CEO Sent Out about the Immigration Ban, Business Insider (Jan. 30, 2017), http://www.businessinsider.com/citigroup-ceo-corbat-on-trump-immigration-ban2017-1.
-19-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 21 of 33 PageID #: 289
65. An Iranian who moved to the United States in 2013 for graduate studies at SUNY New Paltz currently assists with National Institute of Health-funded research into brain structure, diseases, and drug effects. He has been trying for several months to get an interview appointment for his family to visit him in the United States. He was finally able to secure a visa appointment for his family on February 16, 2017, but because of the Executive Order appointments for all Iranians—including his family’s visa appointment—were suddenly cancelled. As a result, the Executive Order is forcing him to choose between seeing his family and staying here to keep his job.
66. The Executive Order also has separated an Iranian Ph.D. student at Columbia Business School from his wife, who is now unable to leave Iran. His wife, who holds a Ph.D. in Electrical Engineering, had returned to Iran to visit her parents. Under the Executive Order, she is now barred from re-entry. This Columbia student is now trapped in a dilemma that no person should face: he can complete his Ph.D. at a leading U.S. university, where he is at the forefront of advancing research, or he can abandon his Ph.D. studies to re-unify his family.
67. A 75-year-old woman from Libya with Parkinson’s disease who has a pending application to become a lawful permanent resident, was detained upon her return to JFK. She was on her way back from visiting her sister in Libya, who was terminally ill and died during the visit. She had been granted permission to travel due to her sister’s illness, yet she was still denied entry into the U.S. upon her return.
68. A lawful permanent resident of Queens, New York traveled to Iran on January 15, 2017, to attend his brother’s funeral. He has lived in the United States since 1978, studied at Pace University, and his wife, daughter, and son are all U.S. citizens. He is scheduled to return to New York on February 6, 2017. However, because of the Executive Order and the erratic
-20-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 22 of 33 PageID #: 290
manner of enforcement, it is uncertain whether he will be permitted to board a flight for the U.S. or be allowed to enter upon arrival at JFK. The Executive Order Chills the Free Exercise of Religion
69. A Canadian-Libyan dual citizen who was born in in Benghazi is here on an F1 visa to complete her Master’s Degree at NYU. She had made plans to complete a religious pilgrimage (Umrah) to Makkah, Saudi Arabia in March 2017; the trip is being organized by the Islamic Center at NYU. She has been forced to consider cancelling her journey because she would be ineligible to reenter under the Executive Order.
PROCEDURAL HISTORY 70. Petitioners in the underlying action are Hameed Khalid Darweesh, an Iraqi husband and father of three, and Haider Sameer Abdulkhaleq Alshawi, an Iraqi husband and father. Both had been granted visas due to their association with the United States military, after the federal government deemed them not to pose threats to the United States. They landed at JFK on January 27, 2017, and were detained and prevented from exiting the airport solely pursuant to the Executive Order. 71. On Saturday, January 28, 2017, the Petitioners filed a Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injuctive Relief with this Court (“Petition”) (ECF No. 4). 72. The Petition alleges that the Executive Order is unlawful as applied to the two named Petitioners as well as all others similarly situated. The Petition alleges five causes of action under various legal authorities, including the Fifth Amendment to the United States Constitution; the Immigration and Nationality Act and its implementing regulations; the United Nations Convention Against Torture, as implemented in the Foreign Affairs Reform and Restructuring Act
-21-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 23 of 33 PageID #: 291
of 1998; and the Administrative Procedure Act. 73. The Petition requested the Court issue a writ of habeas corpus requiring the
Respondents to release the named Petitioners and other members of the proposed class; issue an injuction ordering the Respondents not to detain any individual solely on the basis of the Executive Order; enter a judgment declaring that the Respondents’ detention of the named Petitioners and other members of the proposed class is and will be contrary to law; and award the named Petitioners and other class members reasonable costs and attorneys’ fees.
74. Also on January 28, 2017, the Petitioners filed an Emergency Motion for Stay of Removal (ECF No. 6) on behalf of themselves and all others similarly situated.
75. A hearing was held on the same date, after which the Court issued its January 28, 2017 temporary restraining order (ECF No. 8). After noting the Petitioners’ strong likelihood of success in establishing that the removal of Petitioners and those similarly situated would violate their rights to due process and equal protection under the U.S. Constitution, the Court enjoined the Respondents from removing individuals with refugee aplications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program; holders of valid immigrant and non-immigrant visas; and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen who are legally authorized to enter the United States.
76. On January 29, 2017, out of concern that the Respondents were not complying with the Court’s January 28, 2017 order, Petitioners filed an Emergency Motion for Clarification and Enforcement of Order (ECF No. 9). In the motion, Petitioners stated that their counsel had received repeated reports that individual members subject to the Court’s January 28, 2017 order had been placed on planes, possibly deported, and were subject to intimidation to sign removal orders— at JFK and Los Angeles International Airports—after issuance of the Court’s order. Accordingly,
-22-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 24 of 33 PageID #: 292
Petitioners moved the Court to clarify that its January 28, 2017 order is nationwide in scope and order the Respondents to enforce the stay of removal.
CLAIMS FOR RELIEF First Cause of Action
(Fifth Amendment-Equal Protection) 77. The NYAG realleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 78. The Due Process Clause of the Fifth Amendment prohibits the federal government from denying equal protection of the laws. 79. The Executive Order was motivated by animus and a desire to harm a particular group, as demonstrated by statements made by Defendants concerning their intent and their proposed applications of those provisions. 80. The terms and application of the Executive Order are arbitrary and cannot be sufficiently justified by federal interests. 81. Sections 3 and 5 of the Executive Order target individuals for discriminatory treatment based on their country of origin and/or religion, without lawful justification. 82. For example, Section 3 of the Executive Order suspends entry into the U.S. even of persons holding valid visas to live, work, and study in the U.S. The specific process for applying for each of these visas differs by category, but applicants are always rigorously screened—often by multiple agencies of the U.S. government—before a visa can be approved. The Petition in this case describes the procedures required by the Iraqi Special Immigrant Visa (SIV) program, and the extensive screening applied to Petitioner Hameed Khalid Darweesh between his application for an SIV on or about October 1, 2014 and the visa issuance on January 20, 2017. See Petition ¶¶ 23-30.
-23-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 25 of 33 PageID #: 293
83. Through their actions above, Defendants have violated the equal protection guarantee of the Fifth Amendment.
84. Affected persons who were abroad at the time that the Executive Order was signed have been or will be unable to travel to or return to New York. Affected persons who are currently in New York have been chilled from leaving New York to visit family, conduct business or research, or undertake other lawful activities—including religious travel—for fear of being unable to reenter the United States upon their return.
85. Defendants’ violations cause ongoing harm to individuals who live, work, and study in New York State; to the institutions that employ and educate such persons; and to the communities in which they reside.
86. Defendants’ violations cause ongoing harm to the State of New York itself. Second Cause of Action
(First Amendment-Establishment Clause) 87. The NYAG realleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 88. The Establishment Clause of the First Amendment prohibits the federal government from officially preferring one religion over another. 89. Sections 3 and 5 of the Executive Order are intended to disfavor Islam and favor Christianity, as confirmed by statements made by Defendants concerning their intent and their proposed application of these provisions. 90. The Executive Order suspends entry into the United States of immigrants and nonimmigrants from seven Muslim-majority countries and bans refugees from Syria, also a Muslim-majority country. Several statements by Defendants confirm that this selection of countries was intended to, and in effect does, serve as a proxy for a ban on Muslims entering the
-24-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 26 of 33 PageID #: 294
United States. President Trump has repeatedly expressed his intent to enact a Muslim ban and has intimated on more than one occasion that he would disguise the ban as a facially neutral immigration provision ostensibly based on territory rather than religion. See supra ¶¶ 11-12.
91. The Executive Order favors claims of religious persecution by religious minorities. Although Section 5 of the Executive Order does not on its face specify any particular religious denomination, Defendant Trump’s statements have confirmed that the purpose of this provision is to favor Christianity. See supra ¶ 20.
92. The Executive Order also stigmatizes Islam. By singling out Islam for disfavored treatment, the Executive Order conveys a message to New Yorkers (Muslims and non-Muslims alike) that Islam is uniquely threatening and dangerous. In addition, the Executive Order invokes negative stereotypes about Muslims by referring, for instance, to “honor” killings and other “acts of gender-based violence against women.” In signing the Executive Order, Defendant Trump pledged to “keep radical Islamic terrorists”—as opposed to “terrorists” or “radical terrorists”—“out of the United States.”
93. The Executive Order’s stigmatization of Islam harms New Yorkers. Such stigma threatens to chill Muslims in New York from practicing their religion openly, by causing them to fear hostility from others. For instance, even before the Executive Order was issued, on January 25, 2017, a man at JFK threatened and kicked a Muslim airline worker who was wearing a hijab and then told her, “Trump is here now” and “he will get rid of all of you.”26 This incident demonstrates the real risk that governmental expressions of animus toward Muslims will translate into private violence—risks that are magnified when animus toward Muslims is formalized in official communications such as the Executive Order.
26 Christopher Mele, Man Kicked J.F.K. Airport Worker Wearing Hijab, Prosecutor Says, N.Y. Times (Jan. 26, 2017), https://www.nytimes.com/2017/01/26/nyregion/queens-ny-jfk-attack.html.
-25-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 27 of 33 PageID #: 295
94. Muslims in New York are also injured by the government’s condemnation of their religion, which itself is a cognizable harm under the Establishment Clause.
95. Through their actions above, Defendants have violated the Establishment Clause of the First Amendment.
96. Defendants’ violations cause ongoing harm to individuals who live, work, and study in New York State; to the institutions that employ and educate such persons; and to the communities in which they reside.
97. Defendants’ violations cause ongoing harm to the State of New York itself. Third Cause of Action
(Fifth Amendment-Procedural Due Process) 98. The NYAG realleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 99. The Due Process Clause of the Fifth Amendment prohibits the federal government from depriving individuals of their liberty interests without due process of law. 100. Where Congress has granted statutory rights and has authorized procedures applicable to arriving and present non-citizens, minimum due process rights attach to those statutory rights. For example, many types of U.S. visas authorize the visa-holder to reside and work in the United States for a set period of time, and to bring the visa-holder’s family members to join him or her for the duration of the visa-holder’s authorized stay. 101. The Executive Order and the agency defendants’ implementation of that Order has the effect of generally barring the re-entry into the United States of persons from the seven designated countries even when they hold certain types of U.S. visas and would otherwise be eligible for re-entry into the United States. Such action separates those visa holders from their spouses and children, who may have remained behind in the United States. It also places the
-26-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 28 of 33 PageID #: 296
holders of employment-related visas at risk of losing their qualifying work. 102. New York has many residents who have been granted legal permanent resident
status, H-1B visas, and other similar authorizations to live and work in the United States. Affected persons who were abroad at the time that the Executive Order was signed have been or will be unable to travel to or return to New York. Affected persons who are currently in New York have been chilled from leaving New York to visit family and conduct business, for fear of being unable to reenter the United States upon their return.
103. The Executive Order deprives New York residents and other individuals of their statutorily granted rights to live and work in the United States without providing them any notice or opportunity to be heard.
104. By their actions, defendants have and are violating the procedural due process rights of such individuals.
105. Defendants’ violations cause ongoing harm to individuals who live, work, and study in New York State; to the institutions that employ and educate such persons; and to the communities in which they reside.
106. Defendants’ violations cause ongoing harm to the State of New York itself. Fourth Cause of Action
(Violation of Federal Statutes and Regulations) 107. The NYAG realleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 108. Individuals arriving at a port of entry in the United States, including those arriving by airplane, are entitled to certain rights and procedures specified by federal immigration laws and regulations. For example, lawful permanent residents, regardless of their country of origin, cannot be summarily excluded from the United States. Even where expedited
-27-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 29 of 33 PageID #: 297
removal procedures would otherwise apply, the relevant provisions state that an immigration officer “shall not order [a lawful permanent resident] removed.” 8 C.F.R. § 235.3(b)(5)(ii).
109. Sections 1158 and 1225 of the INA also entitle aliens present or arriving in the United States to apply for asylum. 8 U.S.C. §§ 1158, 1225.
110. Section 1231 of the INA provides that an alien may not be removed to a country where his or her life or freedom would be threatened on certain specified grounds, and entitles an alien to attempt to make that showing. Id. § 1231(b)(3).
111. The United Nations Convention Against Torture—implemented in the Foreign Affairs and Restructuring Act of 1998, Pub. L. 105-277, div. G, subdiv. B, title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified at 8 U.S.C. § 1231 note)—entitles certain individuals entering the country to apply for asylum, withholding of removal and CAT relief.
112. Federal regulations set out detailed procedures for effectuating these and other statutory rights. For example, where an arriving alien subject to expedited removal “indicates an intention to apply for asylum, or expresses a fear of persecution or torture, or a fear of return to his or her country, the inspecting officer shall not proceed further with removal of the alien until the alien has been referred for an interview by an asylum officer in accordance with 8 C.F.R. 208.30.” See 8 C.F.R. § 235.3(b)(1)(i), (4). If after that interview the asylum officer determines that the person does not have a credible fear of persecution or torture, the person has a right to review of the asylum officer’s determination by an immigration judge. Id. § 235.3(b)(4)(i)(C); see also id. §§ 208.30(g), 1208.30(g)(2).
113. Similarly, where such an individual asserts that he or she is has been granted the status of a lawful permanent resident, refugee, asylee or U.S. citizen, an immigration officer claim must attempt to verify the claim. Id. § 235.3(b)(1)(i), (5). If the officer is unable to do so,
-28-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 30 of 33 PageID #: 298
the officer must, among other things, issue an expedited order of removal and refer the alien to an immigration judge to review the order. Id. § 235.3(b)(1)(i), (5); see also id. § 235.6(a)(2)(ii).
114. On information and belief, individuals arriving from the seven designated countries have been denied the foregoing protections, in violation of the rights and procedures established by federal statutes and regulations.
115. Defendants have therefore violated these statutes and regulations. 116. Upon information and belief, these violations have harmed persons entering New York, including Petitioner Hameed Darweesh, an Iraqi citizen holding a Special Immigrant Visa, who was detained from January 27 through January 28, 2017 at JFK. Although he had a fear of persecution if he was returned to Iraq, he was not offered a credible fear interview. 117. Defendants’ violations cause ongoing harm to individuals who live, work, and study in New York State; to the institutions that employ and educate such persons; and to the communities in which they reside. 118. Defendants’ violations cause ongoing harm to the State of New York itself.
Fifth Cause of Action (Procedural Violation of the Administrative Procedure Act) 119. The NYAG realleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 120. The Administrative Procedure Act, 5 U.S.C. §§ 553 and 706(2)(D), requires that federal agencies conduct formal rule making before engaging in action that impacts substantive rights. 121. In implementing Sections 3 and 5 of the Executive Order, federal agencies have changed the substantive criteria by which individuals from affected countries may enter the United States and have restricted the scope of the protections that such individuals are afforded
-29-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 31 of 33 PageID #: 299
under current laws and regulations. 122. With respect to such individuals, the Executive Order effectively requires
federal agencies to substitute the order’s directives for the nation’s detailed scheme of immigration statutes and regulations, including the provisions of the INA and Title 8 of the Code of Federal Regulations described above. No federal agency has followed the procedures required by the Administrative Procedure Act to amend or rescind the relevant regulations, which remain in force.
123. Through their actions above, Defendants have violated the Administrative Procedure Act.
124. Defendants’ violations cause ongoing harm to individuals who live, work, and study in New York State; to the institutions that employ and educate such persons; and to the communities in which they reside.
125. Defendants’ violations cause ongoing harm to the State of New York itself. Sixth Cause of Action
(Substantive Violation of the Administrative Procedure Act) 126. The NYAG realleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 127. The Administrative Procedure Act, 5 U.S.C. § 706(2), prohibits federal agency action that is arbitrary, unconstitutional, and contrary to statute. 128. Federal agencies have acted arbitrarily and capriciously by implementing the Executive Order in inconsistent ways and by making conflicting statements about its application. 129. For instance, as recounted above, Customs and Border Protection and the Department of Homeland Security have taken shifting positions on whether and how the Executive Order applies to legal permanent residents. Similarly, it remains unclear whether, as
-30-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 32 of 33 PageID #: 300
State Department officials initially stated, the Executive Order bars dual nationals from the seven affected countries from entering the United States.
130. In implementing Sections 3 and 5 of the Executive Order, federal agencies have taken unconstitutional and unlawful action, and acted arbitrarily and capriciously, in violation of the Administrative Procedure Act.
131. Defendants’ violations cause ongoing harm to individuals who live, work, and study in New York State; to the institutions that employ and educate such persons; and to the communities in which they reside.
132. Defendants’ violations cause ongoing harm to the State of New York itself. PRAYER FOR RELIEF
WHEREFORE the Intervenor-Plaintiff respectfully requests that the Court: a. Assume jurisdiction over this matter; b. Enter a judgment declaring that the Executive Order as a whole, and each of its specific provisions, violates federal law and is otherwise unconstitutional; c. Enjoin Defendants from implementing or enforcing the Executive Order and from detaining any individual and/or barring or removing any individual from the United States pursuant to the Executive Order; and d. Grant any other relief the Court deems necessary and proper.
-31-

Case 1:17-cv-00480-CBA Document 42-1 Filed 02/02/17 Page 33 of 33 PageID #: 301

Respectfully submitted,
ERIC T. SCHNEIDERMAN Attorney General of the State of New York By:

Of Counsel:
Justin Deabler Sania Khan Anjana Samant Assistant Attorneys General Civil Rights Bureau
Adam Pollock Mark Ladov Assistant Attorneys General

________________________
Lourdes M. Rosado* Bureau Chief Jessica Attie Special Counsel Civil Rights Bureau
Anisha Dasgupta Deputy Solicitor General
Andrew W. Amend Senior Assistant Solicitor General
Office of the New York State Attorney General
120 Broadway New York, New York 10271 Tel. (212) 416-8250 Fax (212) 416-8074 Lourdes.Rosado@ag.ny.gov

Dated:

February 2, 2017 New York, New York

* Admission pending.
-32-

Case 1:17-cv-00480-CBA Document 42-2 Filed 02/02/17 Page 1 of 3 PageID #: 302
EXHIBIT B

Case 1:17-cv-00480-CBA Document 42-2 Filed 02/02/17 Page 2 of 3 PageID #: 303

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------------X HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI, on behalf of themselves and others similarly situated,

Petitioners,

and

PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK,

--against—

Intervenor-Plaintiff,

Case No. 1:17-cv-00480-CBA [PROPOSED] ORDER

DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and JAMES T. MADDEN, New York Field Director, CBP,

Respondents. ------------------------------------------------------------------X

This matter came before the Court upon the New York State Attorney General’s Motion to

Intervene in the Combined Petition for Writ of Habeas Corpus and Complaint for Declaratory and

Injunctive Relief. Having read and considered all memoranda of law and other matters presented to

the Court, and upon any hearing in this matter, the Court finds that the New York State Attorney

General is entitled to intervene in this action as of right pursuant to Federal Rule of Civil Procedure

24(a)(2) or, in the alternative, with

Case 1:17-cv-00480-CBA Document 42-2 Filed 02/02/17 Page 3 of 3 PageID #: 304
permission of the Court pursuant to Federal Rule of Civil Procedure 24(b)(1)(B), therefore, IT IS HEREBY ORDERED that:
1. The New York State Attorney General’s Motion to Intervene is GRANTED, and the movant shall be made an Intervenor-Plaintiff in this action.
2. The Proposed Complaint in Intervention attached to the Motion shall stand as the Complaint in Intervention of the New York State Attorney General in this action.
IT IS SO ORDERED.
Dated this ___ day of ________________, 2017
____________________________________ The Honorable Carol B. Amon United States District Judge
Presented by: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York ______________________________ LOURDES M. ROSADO
Civil Rights Bureau Chief JESSICA ATTIE
Special Counsel ANISHA DASGUPTA
Deputy Solicitor General ANDREW W. AMEND
Senior Assistant Solicitor General Office of the Attorney General
of the State of New York

 </s> Case 1:17-cv-00480-CBA Document 53 Filed 02/07/17 Page 1 of 4 PageID #: 545

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al.,

on behalf of themselves and others similarly situated,

Case No. 1:17-cv-00480

Petitioners,

v.

Date: February 7, 2017

DONALD TRUMP, President of the United States, et al.,

Respondents.

PETITIONERS’ NOTICE OF MOTION AND MOTION TO ENFORCE COURT ORDER

NOTICE IS HEREBY GIVEN that on February 7, 2017, Petitioners will and hereby do

move this Honorable Court to enforce its January 28, 2017 order pursuant to Rule 7 of the

Federal Rules of Civil Procedure. Petitioners, on behalf of themselves and other similarly

situated, move this Court to order Respondents to provide Petitioners’ counsel with a list of all

individuals detained pursuant to the January 27, 2017 Executive Order, including those

previously released or removed. ECF No. 8.2. Petitioners also move this Court to order

Respondents to return individuals removed after the motion for class certification was filed in

this case.

This motion is based on the accompanying Memorandum of Law, the attached

Declarations and Exhibits, and any other evidence that may be presented to the Court before or at

the hearing on this motion.

For the reasons stated in the contemporaneously filed Memorandum of Law in Support of

the Motion to Enforce Court Order, this Court should grant the motion.

1

Case 1:17-cv-00480-CBA Document 53 Filed 02/07/17 Page 2 of 4 PageID #: 546

DATED: February 7, 2017 New Haven, Connecticut
Omar C. Jadwat** Lee Gelernt (LG-8511) Cecillia D. Wang (CW-8359) Andre I. Segura† AMERICAN CIVIL LIBERTIEs UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2600 ojadwat@aclu.org lgelernt@aclu.org cwang@aclu.org asegura@aclu.org
Mark Doss Rebecca Heller Julie Kornfeld Stephen Poellot INTERNATIONAL REFUGEE ASSISTANCE PROJECT URBAN JUSTICE CENTER 40 Rector St, 9th Floor New York, NY 10006 Tel. (646)-602-5600 mdoss@refugeerights.org bheller@refugeerights.org jkornfeld@refugeerights.org spoellot@refugeerights.org
Karen C. Tumlin†† Nicholas Espíritu†† Melissa S. Keaney† Esther Sung† NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 1600 Los Angeles, CA 90010 Phone: (213) 639-3900 tumlin@nilc.org espiritu@nilc.org keaney@nilc.org sung@nilc.org

Respectfully submitted,
/s/ Michael J. Wishnie Michael J. Wishnie (MW 1952) Muneer I. Ahmad** Elora Mukherjee (EM 4011) Marisol Orihuela† JEROME N. FRANK LEGAL SERVICES ORGANIZATION* YALE LAW SCHOOL‡ P.O. Box 209090 New Haven, CT 06520-9090 Phone: (203) 432-4800 Fax: (203) 432-1426 michael.wishnie@yale.edu
Jennifer Chang Newell†† Cody H. Wofsy†† AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Tel. (415) 343-0770 jnewell@aclu.org cwofsy@aclu.org
Jonathan Polonsky KILPATRICK TOWNSEND & STOCKTON LLP 1114 Avenue of the Americas New York, NY 10036-7703 Tel. (212) 775 8703 jpolonsky@kilpatricktownsend.com
Justin B. Cox† NATIONAL IMMIGRATION LAW CENTER 1989 College Ave. NE Atlanta, GA 30317 Phone: (678) 404-9119 cox@nilc.org

2

Case 1:17-cv-00480-CBA Document 53 Filed 02/07/17 Page 3 of 4 PageID #: 547 **Application for admission forthcoming. * Law students working on behalf of the Legal Services Organization include Tiffany Bailey, Willem Bloom, Adam Bradlow, Catherine Chen, David Chen, Jordan Laris Cohen, Charles Du, Susanna Evarts, Katherine Haas, Amit Jain, My Khanh Ngo, Aaron Korthuis, Andrea Levien, Carolyn Lipp, Zachary Manfredi, Melissa Marichal, Adan Martinez, Joseph Meyers, Natalia Nazarewicz, Megha Ram, Victoria Roeck, Joseph (Yusuf) Saei, Thomas Scott-Railton, Yun Tang, Rachel Wilf, and Elizabeth Willis. Motions for law student appearance forthcoming. † Motion for admission pro hac vice forthcoming. †† Appearing pro hac vice. ‡ For identification purposes only. This motion has been prepared by a clinic operated by Yale Law School, but does not purport to present the school’s institutional views, if any. Counsel for Petitioners
3

Case 1:17-cv-00480-CBA Document 53 Filed 02/07/17 Page 4 of 4 PageID #: 548 CERTIFICATE OF SERVICE
I, Michael Wishnie, hereby certify that on February 7, 2017 the foregoing motion, the accompanying memorandum of law, and the accompanying declarations and exhibits were filed and served through the CM/ECF system. Parties may access the filings through the Court’s CM/ECF System.
/s/ Michael Wishnie Michael Wishine, Supervising Attorney Jerome N. Frank Legal Services Organization Yale Law School New Haven, CT 06511 Phone: (203) 436-8971 Fax: (203) 432-1426
1

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 1 of 19 PageID #: 549

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al.,
on behalf of themselves and others similarly situated,
Petitioners,
v.
DONALD TRUMP, President of the United States, et al.,
Respondents.

Memorandum of Law in Support of Motion to Enforce Court Order Case No. 1:17-cv-00480 (CBA)
Date: February 7, 2017

MEMORANDUM OF LAW IN SUPPORT OF PETITIONERS’ MOTION TO ENFORCE COURT ORDER BY COMPELLING (1) DISCLOSURE OF LIST OF INDIVIDUALS DETAINED; AND (2) RETURN OF INDIVIDUALS REMOVED Pursuant to Federal Rule of Civil Procedure 7(b) and Local Rule 7.1, Petitioners Hameed
Khalid Darweesh and Haider Sameer Abdulkhaleq Alshawi, on behalf of members of the proposed class, respectfully move this Court to enforce its January 28, 2017 order requiring Respondents to provide Petitioners’ counsel with a list of all individuals detained and/or removed pursuant to the January 27, 2017 Executive Order (“EO”). Docket Text Order, Jan. 28, 2017, 10:15 PM (EST). Petitioners also request that the Court order the return of individuals removed on the basis of the EO and its implementing instructions after Petitioners’ motion for class certification was filed, at which point this Court’s jurisdiction over the putative class had attached.
First, Petitioners request that, pursuant to its January 28 order, the Court order Respondents to produce a list of all putative class members who have been held by Respondents

1

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 2 of 19 PageID #: 550
at any U.S. airport pursuant to the EO. See id.; see also Decl. of My Khanh Ngo (“Ngo Decl.”), Ex. A (Order, Aziz v. Trump, No. 1:17-cv-116 (LMB/TCB) (E.D. Va. Feb. 3, 2017) (Brinkema, J.), ECF No. 38, (requiring the government to provide a “list of all persons who have been denied entry to or removed from the United States since” the EO in litigation similar to this case)). It has now been ten days since this Court issued its order and, despite repeated written requests by Petitioners’ counsel (including after the February 2 status conference), Respondents have yet to produce the list.
Second, as stated in Petitioners’ previous Emergency Motion for Clarification and Enforcement of Order, ECF No. 9, multiple putative class members were removed pursuant to the EO after the filing of the motion for class certification. Petitioners have compiled several declarations documenting removals after the commencement of this action or entry of the Court’s nationwide order on January 28. See infra Part II. Many were detained by the government for hours without food, coerced into signing forms they did not understand, and expressly denied the opportunity to consult with counsel. In light of the troubling circumstances of these removals, Petitioners respectfully request that this Court order the return of all individuals who were removed pursuant to the EO since the filing of Petitioners’ motion for class certification at 5:43 AM on January 28, 2017.1
1 As ordered by the U.S. District Court in Seattle, see Order at 5-6, Washington v. Trump, No. 2:17-cv-00141 (W.D. Wash. Feb. 3, 2017), ECF No. 52, the government has offered to assist with the return of individuals that Petitioners identify as having had their visas revoked. See Ngo Decl., Ex. I (Letter from Steven A. Platt to Muneer Ahmad (Feb. 6, 2017)); see also infra Parts II, II.D. However, the Seattle order may be vacated at any time, and Petitioners have not received a list of all individuals who were returned to their countries of origin, making it impossible to identify the full list of individuals unlawfully removed.
2

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 3 of 19 PageID #: 551
I. Disclosure of List of Names Pursuant to This Court’s Order The government has already been ordered to produce a list of “individuals detained,
pursuant to the January 27, 2017 Executive Order, to the petitioner’s counsel.” Docket Text Order, Jan. 28, 2017, 10:15 PM (EST). However, despite repeated written requests for this list, Respondents have yet to provide Petitioners’ counsel with even one name of any person held at any U.S. airport or returned to a foreign port. See Ngo Decl., Exs. B–I (email and letter correspondence with government counsel). To date, Petitioners still have not received the list in spite of multiple subsequent requests. See Ngo Decl. Ex. I (Letter from Steven A. Platt to Muneer Ahmad (Feb. 6, 2017)) (reiterating the government’s position that no individuals are currently detained, and declining to provide the names of all those detained since the motion for class certification was filed).
The government’s attempts to justify its failure to comply with this Court’s order are untenable. The government’s stated position is that persons who have been held at airports, often for hours, are merely being “processed,” and so fall outside the order. See Ngo Decl., Ex. E (Email from Steve Platt to My Khanh Ngo, (Jan. 31, 2017)) (“At this time, we are not aware of CBP [or ICE] detaining any individual anywhere in the country under the Executive Order. By ‘detained’, I do not mean individuals who are being processed at a port of entry.”). Similarly, the government contends that Judge Donnelly intended merely a one-time snapshot of persons held now, rather than a cumulative list of those who have been held at airports pursuant to the EO. Id. (“ICE can confirm that it is not currently detaining any individuals under the Executive Order.” (emphasis added)). Later, before the Court, counsel for the government argued that its disclosure obligation was limited to those held “solely on the basis of [the] Executive Order,” Status Conf. Tr. 21:10, Feb. 2, 2017 (emphasis added), adding limitations not present in Judge Donnelly’s
3

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 4 of 19 PageID #: 552
order. Finally, in a letter to Petitioners’ counsel dated February 6, 2017, the government represented that it did not consider individuals who “voluntarily” agreed to removal to fall within Judge Donnelly’s order. Ngo. Decl., Ex. I.
As explained below, the government’s cramped reading of this Court’s order is incorrect. Whether Respondents deem the confinement of class members at airports as “processing” or “detention,” putative class members in this habeas action were plainly in Respondents’ custody, and the Court’s order plainly was intended to require the production of a list of class members’ names. Nor can the government seriously argue that Judge Donnelly intended to compel the disclosure of putative class members based on a one-time snapshot of those held at a particular instant in time, days after the order issued, rather than as a list of all those who have been and are being held pursuant to the EO.
Finally, this case challenges the holding or return of anyone based on the January 27 EO and its implementing instructions, including a directive issued that same day revoking tens of thousands of visas. See Letter of Edward J. Ramotowski, Deputy Asst. Sec’y, Bureau of Consular Affairs, Dep’t of State (Jan. 27, 2017), ECF No. 20-1. This recovation, which was subsequently reversed, see Letter of Edward J. Ramotowski, Deputy Asst. Sec’y, Bureau of Consular Affairs, Dep’t of State (Feb. 3, 2017), ECF No. 50-1, affected many putative class members, who remain stranded abroad. See infra Part II. The Court therefore should order the government to provide a list of all those putative class members who have been held by Respondents at any U.S. airport pursuant to the EO, including those returned, whether based on a purported “voluntary” withdrawal of an application for admission, visa revocation pursuant to the Department of State’s instruction implementing the EO, or otherwise. Although the government has offered to assist in returning any removed individuals, see Ngo Decl., Ex. I, only
4

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 5 of 19 PageID #: 553
by providing such a list can the parties effectuate the purpose of the TRO: to “preserve [the] status quo” before the issuance of the EO. Stay Hr’g Tr. 18:15, Jan. 28, 2017, ECF No. 17.
A. There Is No Relevant Distinction Between Detention and “Processing” As an initial matter, the government’s position that individuals being “processed at a port of entry” are not being held is untenable. An individual who is referred to secondary inspection, questioned, and held (often for hours) would be considered held or “detained” under any reasonable understanding of that term. Moreover, the U.S. Customs and Border Protection (“CBP”) Inspector’s Field Manual (“IFM”)—an official CBP publication—specifically explains that “[d]uring an inspection at a port-of-entry, detention begins when the applicant is referred into secondary or waits for processing.” Ngo Decl., Ex. J at 17.8 (CBP Inspector’s Field Manual); see also id. (explaining that when a person is “referred by an officer for further inspection” and is taken to “a secondary inspection area, POE [‘point-of-entry’] hold room, or any other designated and/or assigned secure area for less than 24 hours,” they are in “short-term detention”).2 The declarations attached to this motion demonstrate that many individuals subject to the EO were held in just this way, often for hours. See, e.g., Decl. of Sara Yarjani (“Yarjani Decl.”) ¶ 39. Accordingly, “processing” is simply holding by another name. The Court’s order,
2 While CBP may change how it defines “detention” for its own purposes or for consistency in its manuals, CBP is not free to change the definition of detention in the broader context of habeas actions such as this one. In this context, the most natural interpretation of the Court’s order is that it encompasses all individuals who had been subject to the challenged detention. See 28 U.S.C. § 2241 (extending writ of habeas corpus to individuals “in custody under or by color of the authority of the United States”). However, CBP has not been transparent regarding even its own terminology. In 2013, CBP began to phase out use of the IFM and phase in use of the Officer’s Reference Tool (“ORT”). Despite a 2013 FOIA request pursuant to 5 U.S.C. § 552 by the American Immigration Lawyers Association, CBP still has refused to release the ORT, making the IFM the most recent public evidence of CPB’s interpretation of the meaning of “detention.” Complaint, American Immigration Law Association v. Dep’t Homeland Security, 1:16-cv-02470 (D.D.C. Dec. 19, 2016), ECF No. 1.
5

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 6 of 19 PageID #: 554
issued as an exercise of its habeas authority, concerned all putative class members whom Respondents held or had held pursuant to the EO. As a result, the names of these individuals “processed” under the EO must be disclosed to Petitioners.
B. The Court’s Order Requires Disclosure of All Individuals Who Have Been Detained Under the EO Since the Filing of the Motion for Class Certification
The context of the Court’s order for the list makes clear the broad scope of the relief contemplated. This suit was brought on behalf of all individuals who were stopped at an airport, held there, and threatened with removal from the country. By issuing a stay based on Petitioners’ habeas petition, Judge Donnelly conveyed the Court’s concern about maintaining the status quo for all individuals held in government custody pursuant to the EO. The Court’s order was not limited to a snapshot of individuals detained at one point in time. At the hearing held on January 28, 2017 preceding the Court’s order, Respondents’ counsel stated it would be “more difficult than it sounds” to provide a list of who was being detained, because “[p]eople are coming in all the time.” Stay Hr’g Tr. 17:14–15. The Court, aware that the list of individuals held was likely to fluctuate, nevertheless ordered the government to produce the list. Id. at 17:17; Order, ECF No. 8.
Moreover, at the January 28 hearing, Petitioners specifically requested that the Court order production of a list for the purpose of facilitating “communicat[ion] with specific individuals.” Stay Hr’g Tr. 16:21. Counsel for Petitioner pointed out at the hearing that the manner of locating class members at that time was primarily through “happenstance,” id. at 17:2–3, and indicated that a reason for the list was to identify class members that counsel would not know of otherwise, id. at 16:22–17:3. When Respondents’ counsel resisted, the Court agreed with Petitioners that “the whole point of this hearing is to preserve this status quo[,]” id. at 18:14–15, and that it would not be “unduly burdensome to identify the people that we’re talking
6

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 7 of 19 PageID #: 555
about here within the specific class[,]” id. at 18:17–19. Counsel for Petitioner further expressed his concern “about the person and probably other people who are about to get on the plane,” id. at 19:9–10, and the Court clarified that “[n]obody is to be removed in this class,” id. at 19:15–16 (emphasis added). The Court’s order for a list of detained individuals was thus intended to preserve the status of individuals who had rightful permission to enter the United States prior to the EO—a purpose that could only be achieved through disclosure of the names of all individuals held by CBP and ICE, including those held for any amount of time or otherwise “in custody” under the EO.
In similar litigation, Judge Brinkema of the Eastern District of Virginia has ordered the government to produce a similar list covering anyone denied entry or removed under the EO, since the EO was issued. See Ngo Decl., Ex. A. Similar to this Court’s order, the order issued in Aziz was not limited in time, and, as such, the order issued in this case should likewise be interpreted to encompass all individuals held pursuant to the EO.
C. The Order is Not Limited to Requiring Disclosure of Individuals Held Based “Solely” Under the Executive Order
Contrary to the plain text of the Court’s order and this Court’s instructions during the January 28 hearing, Respondents seek to limit the order further by adding qualifications the Court never imposed. Compare Docket Text Order, Jan. 28, 2017, 10:15 PM (EST) (directing Respondents “to provide a list of individuals detained, pursuant to the January 27, 2017 Executive Order, to the petitioner’s counsel”), with Steven Platt, Status Conf. Tr. 21:11–14 (asserting list would be a “null set” because “neither [CBP] or [ICE] . . . are detaining anyone solely under this executive order” (emphases added)) and Ngo Decl., Ex. I (Feb. 6, 2017, Letter from Steven A. Platt to Muneer I. Ahmad) (asserting that individuals who “voluntarily withdrew
7

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 8 of 19 PageID #: 556
their applications for admission and departed for a foreign destination” were not removed pursuant to the EO, and thus not part of the required list).
First, the government appears to draw a spurious distinction between denying entry “solely” under the EO and, for example, turning an individual away for lack of a valid travel document, such as a visa that had been revoked pursuant to the EO. See Letter of Edward J. Ramotowski, Deputy Asst. Sec’y, Bureau of Consular Affairs, Dep’t of State (Jan. 27, 2017), ECF No. 20-1 (noting the provisional visa revocation was undertaken “in implementation of section 3(c) of the Executive Order”). The government’s distinction is hollow, as either procedure derives from the EO. The Court’s order also does not in any way qualify the clause “pursuant to the January 27, 2017 Executive Order.” Docket Text Order, Jan. 28, 2017, 10:15 PM (EST). Rather, as Judge Donnelly noted, the purpose of the TRO is to “preserve [the] status quo.” Stay Hr’g Tr. 18:15. Thus, it is intended to preserve the status of individuals who had rightful permission to enter the United States prior to the EO. As a result, Petitioners respectfully ask that the Court require Respondents to disclose the names of all individuals held for any period of time as a result of this directive and any other implementing instructions pursuant to the EO.
Second, the government claims that some removed individuals departed “voluntarily” by withdrawing their applications for admission and departing the United States, and that disclosure of such individuals is not required. Ngo Decl., Ex. I. But as the declarations included with this motion indicate, several proposed class members were intimidated and coerced into withdrawing their applications under conditions that cannot, under any reasonable interpretation, be construed
8

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 9 of 19 PageID #: 557
as voluntary.3 See infra Part II. In some cases, the EO itself was the coercive instrument used by the government to procure the “voluntary” withdrawals of applications for admission. Decl. of Snober ¶ 12; Abushamma Decl. ¶ 8. The government’s effort to evade the Court order by characterizing the removals as “voluntary” highlights the need for disclosing the list of all putative class members who have been held by Respondents at any U.S. airports. Without such a list, Petitioners will be unable to identify all the individuals who were denied entry on the basis of the EO, whether thorugh its direct application or through coercion.
D. The Purpose of the List Requires Broad Disclosure The original and continuing need for the list is clear. Petitioners’ counsel seeks information solely in the possession of the government in order to identify and communicate with class members, monitor compliance with the Court’s stay order, and seek remedy for noncompliance and other violations of class members’ rights. But the government’s interpretation stymies each of these purposes. A single snapshot of those held at a given moment of Respondents’ choosing provides Petitioners’ counsel no meaningful information and no ability to monitor the government’s compliance; a snapshot of those “detained”—according to the government’s groundless definition—affords even less. Finally, this Court should rule that Respondents must provide Petitioners with a list of all individuals held in order to allow Petitioners to pursue appropriate remedies for class members who were wrongfully detained or returned. Cf. Ngo Decl., Ex. E (Email from Steven A. Platt to My Khanh Ngo (Jan. 31, 2017,
3 Shortly before this filing, on February 7, 2017, Petitioners provided Respondents with a list of individuals who were intimidated and coerced into signing withdrawal applications, some of whom have still been unable to secure transport back to the United States. While the Government offered to “discuss the prospect of facilitating []travel back to the United States” for certain class members of whom Petitioners are “aware,” see Ngo Decl. Exh. I, the government’s failure to provide the list makes it difficult if not impossible for Petitioners and their counsel to identify all individuals who were unlawfully removed.
9

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 10 of 19 PageID #: 558
9:49 PM EST)) (“If you are aware of any individuals being unlawfully detained, please let us know . . .”). Without the list ordered by the Court, counsel has been able to monitor Respondents’ compliance with the Court’s order only through ad hoc reports from noncitizens, family members, and attorneys around the world who are able to contact Petitioners’ counsel.
Ultimately, the government’s position on the list is unjustifiable. In essence, the government contends it may delay more than a week after the Court’s order without providing any information about individuals detained pursuant to the EO, unilaterally modify the Court’s own words, and then invent arbitrary distinctions in order to announce that the list the Court ordered is a “null set” because no one is currently held as the government chooses to understand that term. Whether Respondents have taken this position as a result of the chaos engendered by this EO or for some other reason, the government’s proffered interpretations would deprive the Court’s order of any significance.
II. The Return of Individuals Removed With this motion, Petitioners submit declarations establishing that Respondents removed
eleven individuals4 pursuant to the EO, after the Petitioners filed their motion for class certification. See infra Part II.A. There are likely many more. At least one of these removals took place after the Court issued a nationwide order staying removal.5 Because the government has not identified individuals removed pursuant to the EO, see supra Part I, it is plausible that the government has carried out additional removals in violation of this Court’s order. At the
4 The eleven individuals include the eight named declarants and their family members. 5 Petitioners understand that many putative class members signed forms, often under coercion, agreeing to withdraw their applications for admission, and were then subsequently placed on planes returning them to the country from which they had traveled. Petitioners use the term “removal” to refer to the process by which Respondents implemented the EO to prohibit class members’ entry to the United States, resulting in their forced departures.
10

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 11 of 19 PageID #: 559
moment, the government is offering to assist with the return of some individuals, as required by the temporary restraining order entered by the U.S. District Court in Seattle. The government has filed an emergency appeal of the Seattle order, however, and because that order may be vacated at any time, and because it will soon expire in any event, Petitioners request an order from this Court for the return of putative class members. See also Stay Hr’g Tr. 13:14-15 (Judge Donnelly finding “likelihood of success” of class certification motion). Removals of class members based on the EO are unlawful, including those removals based upon State Department guidance implementing the EO through the revocation of visas. In light of Respondents’ unlawful actions, this Court should exercise its inherent and statutory authority to order the return of all those individuals removed pursuant to the EO since the filing of the motion for class certification at 5:43 AM EST on January 28, 2017.
A. Respondents Removed Numerous Class Members After the Motion for Class Certification Was Filed
Despite being on notice of putative class members’ challenge to removal based on the Executive Order, the government effectuated numerous removals after Petitioners filed their motion for class certification. The removals of Hind Elbashir, Sara Yarjani, and Yahya Aburomman, detailed below, are illustrative of the declarations accompanying this memorandum, and indicate troubling practices the government engaged in after the filing of this lawsuit and class certification motion. While some of these individuals have since returned to the United States at their own cost, and with the help of extraordinary efforts by individual lawyers, others remain abroad.
1. Hind Elbashir Putative class member Hind Elbashir traveled to Orlando, Florida on Saturday, January
28, 2017 to care for her sister and her sister’s children. Decl. of Hind Elbashir ¶ 2, ¶¶ 4–5. Her
11

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 12 of 19 PageID #: 560
sister was about to give birth and needed assistance to care for her newborn baby and her son with severe autism. Id. ¶ 5. Ms. Elbashir received a B-2 visa on January 11, 2017 and planned to stay with her sister for one month to provide this crucial support. Id. ¶¶ 5–6, 8. However, when Ms. Elbashir arrived at the airport on January 28 at 10:30 AM EST, she was denied entry based on the EO, which had been issued while she was in transit. Id. ¶¶ 9, 11–12, 16. Ms. Elbashir was detained in a secondary processing room by CBP for approximately ten hours before being coerced into leaving the United States on Lufthansa Flight No. 465, which left on or around January 28 at 9:10 PM EST. Id. ¶¶ 24–28; see also id. Ex. B (List of Historical Flight Departure Times for Lufthansa Flight Number 465). At least ten other individuals from countries with visa bans under the EO were returned on the same flight. Id. ¶ 25; see also Decl. of Rashid Gibril Ali ¶¶ 4, 10.
2. Sara Yarjani Putative class member Sara Yarjani, a citizen of Iran and permanent resident of Austria
traveling on an F-1 student visa, landed at the Los Angeles International Airport (“LAX”) from Oslo, Norway at 8:35 PM PST on January 27, 2017. Yarjani Decl. ¶¶ 7–8. Ms. Yarjani was then detained by a CBP agent and taken to a back room. Id. ¶¶ 9–10. An officer who identified himself as a “case worker” questioned her and informed her that she was not admissible to the United States because her student visa was no longer valid. Id. ¶¶ 13–14. The officer presented Ms. Yarjani with two options: 1) comply by signing a form and agreeing to leave voluntarily, or 2) be forcibly removed with a reentry ban of one to five years or longer. Id. ¶ 15. Ms. Yarjani felt she had no choice but to comply and sign the form. Id. She was prohibited from calling anyone until her interview and paperwork had been completed. Id. ¶ 16. She was then sent back to the detention room. Id. ¶ 17. Ms. Yarjani was detained for nearly twenty-three hours at LAX before
12

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 13 of 19 PageID #: 561
boarding a flight departing the United States on January 28, 2017 at approximately 7:30 PM PST, after the issuance of this Court’s order. Id. ¶¶ 37, 39.
3. Yahya Aburomman CBP officers removed class member Yahya Aburomman after 5:00 PM CST on Monday,
January 30, nearly two full days after the Court’s order enjoining such removals was issued. Decl. of Yahya Aburomman ¶ 24. Mr. Aburomman is a Jordanian citizen holding a Jordanian passport that indicates he was born in Syria, one of the seven countries covered by the EO. Id. ¶¶ 1, 5. Jordan, however, is not on the list of seven countries covered by the EO. See EO, Sec. 3(c). Mr. Aburomman came to the United States on a B-1/B-2 visa in order to visit U.S.-citizen family members. Aburomman Decl. ¶¶ 2, 4. Upon his arrival at O’Hare Airport on January 29, 2017, CBP officers noticed his passport stated he was born in Syria and as a result held and questioned him for six hours. Id. ¶¶ 5, 11. The officers coerced him into signing papers agreeing to departure by threatening him with permanent banishment from the United States. Id. ¶ 19. After he signed the papers against his will, he was held in a locked cell in the airport for 20 hours. Id. ¶ 22. He was not permitted to speak to his brother, who was waiting for him at arrivals, or his lawyer. Id. ¶¶ 23, 25. Mr. Aburomman was subsequently returned to Jordan on January 30 via Lufthansa flight L431 to Frankfurt. Id. ¶ 25.
B. This Court Should Order Class Members’ Return to the United States This Court has both inherent authority and statutory authority to order relief to potential class members removed pursuant to the EO and its implementation. 28 U.S.C. § 1651; United States v. New York Tel. Co., 434 U.S. 159, 173 (1977) (“The Court has consistently applied the [All Writs] Act flexibly . . . .”); Ying Fong v. Ashcroft, 317 F. Supp. 2d 398, 404 (S.D.N.Y. 2004) (noting that courts have both inherent and statutory authority to issue rulings to effectuate
13

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 14 of 19 PageID #: 562
relief). Exercising these powers, courts regularly order the return of deported individuals in appropriate circumstances. See, e.g., Sutuc v. Attorney General, No 15-2425 (3d Cir. June 19, 2015); Ying Fong v. Ashcroft, 317 F. Supp. 2d 398, 408 (S.D.N.Y. 2004); Dennis v. INS, No. CIV.A. 301CV279SRU, 2002 WL 295100 (D. Conn. Feb. 19, 2002). Indeed, at least one other federal court has already done so for an individual removed pursuant to the EO. See Vayeghan v. Kelly, No. 17-0702, ECF No. 5 (C.D. Cal. Jan. 29, 2017), Ex. K (“Respondents shall transport Petitioner back to the United States and admit him under the terms of his previously approved visa.”).
Here, an order requiring Respondents to return and admit putative class members removed subsequent to the filing of Petitioners’ motion for class certification at 5:43 AM EST on January 28, 2017, see Mot. for Class Cert., ECF No. 4, is appropriate. Putative class members removed by the government were entitled to be heard on their application for a writ of habeas corpus. See Boumediene v. Bush, 553 U.S. 723, 779 (2008). The government’s removal of putative habeas class members once it was on notice that they challenge their removal is contrary to principles of habeas jurisdiction, as the court must be in control of the body of the person so that it can be assured of its ability to provide effective relief. For this reason, the Court should order the return of the individuals who, at the time of the filing of the class certification motion, became putative class members challenging their removal.
Additionally, the Court retains jurisdiction over any individuals already removed pursuant to the Executive Order. Carafas v. LaVallee, 391 U.S. 234, 238 (1968); see also United States ex rel. Meadows v. State of New York, 426 F.2d 1176, 1182 (2d Cir. 1970). Ordering return would also be consistent with this Court’s finding that class members are likely to prevail
14

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 15 of 19 PageID #: 563
on the merits of their claims and that there is “imminent danger” of “substantial and irreparable injury” if removed. Decision and Order, ECF No. 8; see also Mot. for Class Cert., ECF No. 4.
C. The Government’s Coercive Tactics Warrant Ordering Return of Putative Class Members Who Withdrew Their Applications for Admission
The attached declarations illustrate that the implementation of the EO was shot through with coercion compounded by the denial of access to counsel and translation services. Removals based on such coercion are unlawful and the Court should order the return of affected members of the proposed class.
A noncitizen’s decision to withdraw an application for admission to the United States must be voluntary, or it is not legitimate. See 8 C.F.R. § 235.4. Respondents subjected class members to repeated threats and barred them from accessing counsel so as to coerce them into signing waivers. See, e.g., Snober Decl. ¶ 20 (stating that Mr. Snober and his young children witnessed CBP officials handcuff a man in a detention room while other CBP officials had their hands on their guns); Abushamma Decl. ¶¶ 8–9, 13–15, 20 (stating that CBP agents refused Ms. Abushamma’s repeated requests to speak with her immigration attorney, told her that she would be forcibly removed from the United States and banned from the country for five years unless she signed a waiver form, and did not provide her with any food until after she had signed a waiver form); Aburomman Decl. ¶ 19 (stating that CBP agents told Mr. Aburomman that he would be barred from reentering the United States “for the rest of [his] life” if he did not agree to his removal).
A decision made under threat—like many of the decisions made by the declarants here— is not voluntary. The government’s claim that those who “voluntarily withdrew their applications for admission” under such threats did so neither pursuant to the EO nor involuntarily, see Ngo Decl., Ex. I, is mistaken. As courts have explained in the analogous context of voluntary
15

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 16 of 19 PageID #: 564
departure, it is coercive for an immigration official to present a noncitizen with the option of leaving the United States while threatening her with the negative possible consequences of seeking to remain. See Orantes-Hernandez v. Smith, 541 F. Supp. 351, 373 (C.D. Cal. 1982) (describing how an “interrogative environment and the omissions in the information provided by INS agents” can constitute coercion). Voluntariness may be negated where there are threats of lengthy detention, removal regardless of efforts made to remain, and other negative immigration consequences. See Orantes-Hernandez v. Thornburg, 919 F.2d 549, 562 (9th Cir. 1990). Indeed, even where such threats are “accurate descriptions of what may in fact occur,” it is nonetheless true that “without any notice of rights, such accurate descriptions are improper.” Smith, 541 F. Supp. at 373 (internal quotation marks omitted).
In the voluntary departure setting, “any waiver of rights made pursuant to a signature on a voluntary departure form must be effectuated willingly and with full knowledge of the effects of one’s actions.” Maria S. v. Garza, 2015 WL 4394745 at *5 (S.D. Tex. 2015). That was not always the case here. Further, noncitizens who do not speak English must be able to understand deportation proceedings to voluntarily waive their rights. United States v. Ramos, 623 F.3d 672, 680-81 (9th Cir. 2010). Yet, class members who did not understand the waiver forms were denied access to translators. See Alhaffar Decl. ¶¶ 8–9 (stating that CBP agents denied Ms. Alhaffar’s request for a translator); cf. Decl. of Manar ¶ 14 (stating that CBP agents refused to explain form waiving rights). Thus, class members signed these forms without full consent or knowledge as to the consequences of so doing.
The results have been devastating for many removed individuals. As the attached declarations demonstrate, class members have been traumatized, were separated from their spouses, and missed critical family events due to their unlawful removal. See, e.g., Elbashir Decl.
16

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 17 of 19 PageID #: 565
¶ 5 (stating at Ms. Elbashir was coming to the United States to assist her sister’s family with the birth of a new child and with care for another child with special needs); Alhaffar Decl. ¶¶ 14-15 (stating that Ms. Alhaffar has been separated from her husband, that she was “emotionally devastated” by her experience, and that she does not know when she will see him again); Snober Decl. ¶¶ 21, 24 (stating Mr. Snober’s family was “very upset[,] . . . depressed,” and that his children have remained “very agitated”).
Because Respondents coerced individuals into removal, denied them access to translation and counsel, and needlessly traumatized them, this Court should order their return. At an absolute minimum, the Court should require the government to return individuals removed after the Court issued its order on the evening of January 28.
CONCLUSION For the foregoing reasons, Petitioners respectfully request that this Court order Respondents to: (1) Immediately produce a list of the names of all individuals who have been detained at
any time, including those processed, pursuant to the Executive Order, and provide daily updated lists to counsel about these detainees; (2) Immediately produce the names of individuals removed pursuant to the Executive Order since the filing of the motion for class certification, the countries to which they were removed, the flights on which they were removed, and the times at which they were removed, and provide daily updated lists to counsel about these individuals; and (3) Return to the United States all individuals who were removed at any time after the filing of Petitioners’ motion for class certification because of the Executive Order.
17

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 18 of 19 PageID #: 566

DATED: February 7, 2017 New Haven, Connecticut
Omar C. Jadwat** Lee Gelernt (LG-8511) Cecillia D. Wang (CW-8359) Andre I. Segura† AMERICAN CIVIL LIBERTIEs UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2600 ojadwat@aclu.org lgelernt@aclu.org cwang@aclu.org asegura@aclu.org
Mark Doss Rebecca Heller Julie Kornfeld Stephen Poellot INTERNATIONAL REFUGEE ASSISTANCE PROJECT URBAN JUSTICE CENTER 40 Rector St, 9th Floor New York, NY 10006 Tel. (646)-602-5600 mdoss@refugeerights.org bheller@refugeerights.org jkornfeld@refugeerights.org spoellot@refugeerights.org
Karen C. Tumlin†† Nicholas Espíritu†† Melissa S. Keaney† Esther Sung† NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 1600 Los Angeles, CA 90010 Phone: (213) 639-3900 tumlin@nilc.org espiritu@nilc.org keaney@nilc.org sung@nilc.org

Respectfully submitted,
/s/ Michael J. Wishnie Michael J. Wishnie (MW 1952) Muneer I. Ahmad** Elora Mukherjee (EM 4011) Marisol Orihuela† JEROME N. FRANK LEGAL SERVICES ORGANIZATION* YALE LAW SCHOOL‡ P.O. Box 209090 New Haven, CT 06520-9090 Phone: (203) 432-4800 Fax: (203) 432-1426 michael.wishnie@yale.edu
Jennifer Chang Newell†† Cody H. Wofsy†† AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Tel. (415) 343-0770 jnewell@aclu.org cwofsy@aclu.org
Jonathan Polonsky KILPATRICK TOWNSEND & STOCKTON LLP 1114 Avenue of the Americas New York, NY 10036-7703 Tel. (212) 775 8703 jpolonsky@kilpatricktownsend.com
Justin B. Cox† NATIONAL IMMIGRATION LAW CENTER 1989 College Ave. NE Atlanta, GA 30317 Phone: (678) 404-9119 cox@nilc.org

18

Case 1:17-cv-00480-CBA Document 53-1 Filed 02/07/17 Page 19 of 19 PageID #: 567 **Application for admission forthcoming. * Law students working on behalf of the Legal Services Organization include Tiffany Bailey, Willem Bloom, Adam Bradlow, Catherine Chen, David Chen, Jordan Laris Cohen, Charles Du, Susanna Evarts, Katherine Haas, Amit Jain, My Khanh Ngo, Aaron Korthuis, Andrea Levien, Carolyn Lipp, Zachary Manfredi, Melissa Marichal, Adan Martinez, Joseph Meyers, Natalia Nazarewicz, Megha Ram, Victoria Roeck, Joseph (Yusuf) Saei, Thomas Scott-Railton, Yun Tang, Rachel Wilf, and Elizabeth Willis. Motions for law student appearance forthcoming. † Motion for admission pro hac vice forthcoming. †† Appearing pro hac vice. ‡ For identification purposes only. This motion has been prepared by a clinic operated by Yale Law School, but does not purport to present the school’s institutional views, if any. Counsel for Petitioners
19

Case 1:17-cv-00480-CBA Document 53-2 Filed 02/07/17 Page 1 of 2 PageID #: 568

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al.,
on behalf of themselves and others similarly situated,
Petitioners,
v.
DONALD TRUMP, President of the United States, et al.,
Respondents.

Case No. 1:17-cv-00480 Date: ________________, 2017

[PROPOSED] ORDER TO ENFORCE COURT ORDER BY COMPELLING (1) DISCLOSURE OF LIST OF INDIVIDUALS DETAINED;
AND (2) RETURN OF INDIVIDUALS REMOVED This matter having been brought before the Court by Plaintiffs Hameed Khalid Darweesh, Haider Sameer Abdulkhaleq Alshawi, on behalf of members of the proposed class, pursuant to Federal Rule of Civil Procedure 7(b)(1) and Local Rule 7.1; and the Court having considered this matter, and for good cause having been shown; IT IS on this _______ day of _________, 2017 ORDERED that, pursuant to Federal Rule of Civil Procedure 7(b)(1) and Local Rule 7.1, Defendants shall: (1) Immediately produce a list of the names of all individuals ever detained, including
those processed, in the United States pursuant to the January 27, 2017 Executive Order, and provide daily updated lists to counsel about these detainees; (2) Immediately produce the names of individuals removed pursuant to the Executive

1

Case 1:17-cv-00480-CBA Document 53-2 Filed 02/07/17 Page 2 of 2 PageID #: 569

Order since the filing of the motion for class certification in this case, the countries to which they were removed, the flights on which they were removed, and the times at which they were removed, and provide daily updated lists to counsel about these individuals; and, (3) Return to the United States all individuals who were removed at any time after the filing of that motion because of the Executive Order.

DATED this _______ day of ________, 2017.

______________________________ Honorable Carol Bagley Amon United States District Court Judge

2

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 1 of 70 PageID #: 570

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI,
on behalf of themselves and others similarly situated,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; JAMES T. MADDEN, New York Field Director, CBP,
Respondents.

Case No. 1:17-cv-00480 Date: February 7, 2017

DECLARATION OF MY KHANH NGO
I, My Khanh Ngo, upon my personal knowledge and in accordance with 28 U.S.C. § 1746, hereby declare as follows:
1. I am a law student intern with the Jerome N. Frank Legal Services Organization at Yale Law School. I am over eighteen years of age and I understand the obligations of an oath.
2. All of the exhibits attached hereto are true and accurate copies of the originals.
3. Exhibit A is a true and accurate copy of the Order, Aziz v. Trump, No. 1:17-cv116 (LMB/TCB) (E.D. Va. Feb. 3, 2017), ECF No. 38.
4. Exhibit B is a true and accurate copy of the Email from My Khanh Ngo, Law Student Intern, Jerome N. Frank Legal Services Organization, to Scott Dunn, Assistant U.S. Attorney, E.D.N.Y. (Jan. 30, 2017, 7:20 A.M. EST).

1

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 2 of 70 PageID #: 571
5. Exhibit C is a true and accurate copy of the Email from Steven A. Platt, Trial Attorney, U.S. Dep’t of Justice, to My Khanh Ngo (Jan. 30, 2017, 9:33 P.M. EST).
6. Exhibit D is a true and accurate copy of the Email from My Khanh Ngo to Steven A. Platt (Jan. 31, 2017, 9:23 A.M. EST).
7. Exhibit E is a true and accurate copy of the Email from Steven A. Platt to My Khanh Ngo (Jan. 31, 2017, 9:49 P.M. EST).
8. Exhibit F is a true and accurate copy of the Email from My Khanh Ngo to Steven A. Platt (Feb. 1, 2017, 3:51 P.M. EST).
9. Exhibit G is a true and accurate copy of the Letter from Muneer I. Ahmad, Supervising Attorney, Jerome N. Frank Legal Services Organization, to Steven A. Platt (February 2, 2017, 11:47 P.M. EST).
10. Exhibit H is a true and accurate copy of the Letter from Steven A. Platt to Muneer I. Ahmad (February 3, 2017, 3:59 P.M. EST).
11. Exhibit I is a true and accurate copy of the Letter from Steven A. Platt to Muneer I. Ahmad (February 6, 2017, 7:46 P.M. EST).
12. Exhibit J is a true and accurate copy of the of the table of contents and Chapter 17 of the Customs and Border Protection Inspector’s Field Manual (Apr. 19, 2007).
13. Exhibit K is a true and accurate copy of the District Court Order, Vayeghan v. Kelly, No. 17-0702 (C.D. Cal. Jan. 29, 2017), ECF No. 5.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, based on my personal knowledge.
Dated: February 7, 2017
Respectfully submitted,
_____________________________
My Khanh Ngo, Law Student Intern Jerome N. Frank Legal Services Org. Yale Law School P.O. Box 209090 New Haven, Connecticut 06520 Phone: (203) 432-4800
2

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 3 of 70 PageID #: 572
EXHIBIT A

CCaassee 11::1177--ccvv--0000141860--LCMBBA-TCDBocuDmoecnutm5e3n-3t 38FileFdile0d2/0027//0137/17PagPeag4eo1f 7o0f 1PaPgaegIeDID##: 527430

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 5 of 70 PageID #: 574
EXHIBIT B

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 6 of 70 PageID #: 575 Wednesday,)February)1,)2017)at)10:49:38)PM)Eastern)Standard)Time
Subject: [Wirac](Order(regarding(List(of(Detained(and/or(Removed(Class(Members Date: Monday,(January(30,(2017(at(7:20:09(AM(Eastern(Standard(Time From: My(Khanh(Ngo((sent(by(wiracPbounces@mailman.yale.edu(<wiracPbounces@mailman.yale.edu>) To: ScoV.Dunn@usdoj.gov,(steven.a.plaV@usdoj.gov CC: wirac@mailman.yale.edu,(Karen(Tumlin,(Stephen(Poellot,(Keaney,(Lee(Gelernt,(Becca(Heller,(Cecillia
Wang,(Jus]n(Cox,(Melissa@ahi.its.yale.edu,(Jadwat,(Omar@ahi.its.yale.edu Mr.(Dunn(and(Mr.(PlaV, At(the(mo]on(hearing(on(the(evening(of(January(28,(2017,(Judge(Donnelly(instructed(the(Government(“to(provide(a( list(of(individuals(detained,(pursuant(to(the(January(27,(2017(Execu]ve(Order,(to(the(pe]]oner’s(counsel.”(We(are( contac]ng(you(to(request(that(you(immediately(send(us(a(list,(updated(daily,(of(all(individuals(detained(across(the( country(based(on(the(Execu]ve(Order,(including(anyone(previously(detained(and(removed.( Many(thanks, My(Khanh ==
My Khanh Ngo Law Student Intern Jerome N. Frank Legal Services Organization mk.ngo@ylsclinics.org
PRIVILEGED(AND(CONFIDENTIAL This(ePmail(message(is(intended(only(for(the(use(of(the(individual(or(en]ty(to(which(it(is(addressed(and(may(contain( informa]on(that(is(privileged,(conﬁden]al(and(exempt(from(disclosure.(((If(you(are(not(the(intended(recipient,(please( do(not(disseminate,(distribute(or(copy(this(communica]on,(by(ePmail(or(otherwise.((Instead,(please(no]fy(me( immediately(by(return(ePmail((including(the(original(message(in(your(reply)(and(by(telephone(and(then(delete(and( discard(all(copies(of(the(ePmail.
Page)1)of)1

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 7 of 70 PageID #: 576
EXHIBIT C

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 8 of 70 PageID #: 577 Wednesday,)February)1,)2017)at)10:49:59)PM)Eastern)Standard)Time
Subject: Re:$[Wirac]$Order$regarding$List$of$Detained$and/or$Removed$Class$Members Date: Monday,$January$30,$2017$at$9:33:31$PM$Eastern$Standard$Time From: PlaK,$Steven$A.$(CIV)$(sent$by$wiracSbounces@mailman.yale.edu$<wiracS
bounces@mailman.yale.edu>) To: My$Khanh$Ngo,$Dunn,$ScoK$(USANYE) CC: wirac@mailman.yale.edu,$Karen$Tumlin,$Stephen$Poellot,$Melissa$Keaney,$Lee$Gelernt,$Becca
Heller,$Cecillia$Wang,$Jus`n$Cox,$Omar$Jadwat
Dear$Ms.$Ngo,
I$wanted$to$touch$base$about$your$request.$Unfortunately,$I$do$not$have$anything$to$provide$you$yet,$but$I$will$keep you$updated.
Best,
Steve
Steven$A.$PlaK Trial$AKorney U.S.$Department$of$Jus`ce$|$Civil$Division$|$Oﬃce$of$Immigra`on$Li`ga`on$|$District$Court$Sec`on P.O.$Box$868$|$Ben$Franklin$Sta`on$|$Washington,$DC$20044
$|$(202)$305S7000$(fax)$|$steven.a.plaK@usdoj.gov [Descrip`on:$Descrip`on:$Descrip`on:$cid:image001.jpg@01CA8936.0709C300] ________________________________ The$contents$of$this$message$may$be$privileged$and$conﬁden`al.$If$this$message$has$been$received$in$error,$please delete$it$without$reading$it$and$immediately$contact$the$sender. Your$receipt$of$this$message$is$not$intended$to$waive$any$applicable$privilege.$Please$do$not$disseminate$this$message without$the$permission$of$the$author.
From:$My$Khanh$Ngo$[mailto:mk.ngo@ylsclinics.org] Sent:$Monday,$January$30,$2017$7:20$AM To:$Dunn,$ScoK$(USANYE)$<ScoK.Dunn@usdoj.gov>;$PlaK,$Steven$A.$(CIV)$<splaK@CIV.USDOJ.GOV> Cc:$wirac@mailman.yale.edu;$Cecillia$Wang$<cwang@aclu.org>;$Lee$Gelernt$<LGELERNT@aclu.org>;$Omar$Jadwat <OJadwat@aclu.org>;$Jus`n$Cox$<cox@nilc.org>;$Becca$Heller$<Bheller@refugeerights.org>;$Stephen$Poellot <spoellot@refugeerights.org>;$Melissa$Keaney$<keaney@nilc.org>;$Karen$Tumlin$<tumlin@nilc.org> Subject:$Order$regarding$List$of$Detained$and/or$Removed$Class$Members
Mr.$Dunn$and$Mr.$PlaK,
At$the$mo`on$hearing$on$the$evening$of$January$28,$2017,$Judge$Donnelly$instructed$the$Government$“to$provide$a list$of$individuals$detained,$pursuant$to$the$January$27,$2017$Execu`ve$Order,$to$the$pe``oner’s$counsel.”$We$are contac`ng$you$to$request$that$you$immediately$send$us$a$list,$updated$daily,$of$all$individuals$detained$across$the country$based$on$the$Execu`ve$Order,$including$anyone$previously$detained$and$removed.
Many$thanks, My$Khanh
== My$Khanh$Ngo Law$Student$Intern
Page)1)of)2

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 9 of 70 PageID #: 578
Jerome$N.$Frank$Legal$Services$Organiza`on mk.ngo@ylsclinics.org<mailto:mk.ngo@ylsclinics.org> PRIVILEGED$AND$CONFIDENTIAL This$eSmail$message$is$intended$only$for$the$use$of$the$individual$or$en`ty$to$which$it$is$addressed$and$may$contain informa`on$that$is$privileged,$conﬁden`al$and$exempt$from$disclosure.$$$If$you$are$not$the$intended$recipient,$please do$not$disseminate,$distribute$or$copy$this$communica`on,$by$eSmail$or$otherwise.$$Instead,$please$no`fy$me immediately$by$return$eSmail$(including$the$original$message$in$your$reply)$and$by$telephone$and$then$delete$and discard$all$copies$of$the$eSmail. _______________________________________________ Wirac$mailing$list Wirac@mailman.yale.edu hKp://mailman.yale.edu/mailman/lis`nfo/wirac
Page)2)of)2

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 10 of 70 PageID #: 579
EXHIBIT D

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 11 of 70 PageID #: 580 Wednesday,)February)1,)2017)at)10:50:15)PM)Eastern)Standard)Time
Subject: Re:$[Wirac]$Order$regarding$List$of$Detained$and/or$Removed$Class$Members Date: Tuesday,$January$31,$2017$at$9:23:42$AM$Eastern$Standard$Time From: My$Khanh$Ngo$(sent$by$wiracQbounces@mailman.yale.edu$<wiracQbounces@mailman.yale.edu>) To: PlaX,$Steven$A.$(CIV) CC: wirac@mailman.yale.edu,$Karen$Tumlin,$Stephen$Poellot,$Keaney,$Lee$Gelernt,
Melissa@ahi.its.yale.edu,$Becca$Heller,$Dunn,$ScoX$(USANYE),$Jusan$Cox,$Cecillia$Wang,$Jadwat, Omar@ahi.its.yale.edu
Mr.$PlaX:
Thank$you$for$your$message.$It$has$already$been$two$and$a$half$days$since$the$Court$ordered$Respondents$to$provide these$lists.$Please$conﬁrm$that$you$will$provide$us$a$list$by$5$p.m.$today$of$all$individuals$detained$under$the Execuave$Order,$including$those$previously$detained$and$released$or$removed,$and$conﬁrm$that$you$will$update$this list$daily.$If$we$don’t$receive$a$list$by$5$p.m.$today,$we$will$be$seeking$intervenaon$from$the$Court.
My$Khanh
On$Jan$30,$2017,$at$21:36,$PlaX,$Steven$A.$(CIV)$<Steven.A.PlaX@usdoj.gov>$wrote:
Dear$Ms.$Ngo,
I$wanted$to$touch$base$about$your$request.$Unfortunately,$I$do$not$have$anything$to$provide$you$yet, but$I$will$keep$you$updated.
Best,
Steve
Steven$A.$PlaX Trial$AXorney U.S.$Department$of$Jusace$|$Civil$Division$|$Oﬃce$of$Immigraaon$Liagaaon$|$District$Court$Secaon P.O.$Box$868$|$Ben$Franklin$Staaon$|$Washington,$DC$20044
|$(202)$305Q7000$(fax)$|$steven.a.plaX@usdoj.gov [Descripaon:$Descripaon:$Descripaon:$cid:image001.jpg@01CA8936.0709C300] ________________________________ The$contents$of$this$message$may$be$privileged$and$conﬁdenaal.$If$this$message$has$been$received$in error,$please$delete$it$without$reading$it$and$immediately$contact$the$sender. Your$receipt$of$this$message$is$not$intended$to$waive$any$applicable$privilege.$Please$do$not disseminate$this$message$without$the$permission$of$the$author.
From:$My$Khanh$Ngo$[mailto:mk.ngo@ylsclinics.org] Sent:$Monday,$January$30,$2017$7:20$AM To:$Dunn,$ScoX$(USANYE)$<ScoX.Dunn@usdoj.gov>;$PlaX,$Steven$A.$(CIV)$<splaX@CIV.USDOJ.GOV> Cc:$wirac@mailman.yale.edu;$Cecillia$Wang$<cwang@aclu.org>;$Lee$Gelernt$<LGELERNT@aclu.org>; Omar$Jadwat$<OJadwat@aclu.org>;$Jusan$Cox$<cox@nilc.org>;$Becca$Heller <Bheller@refugeerights.org>;$Stephen$Poellot$<spoellot@refugeerights.org>;$Melissa$Keaney <keaney@nilc.org>;$Karen$Tumlin$<tumlin@nilc.org> Subject:$Order$regarding$List$of$Detained$and/or$Removed$Class$Members
Page)1)of)2

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 12 of 70 PageID #: 581
Mr.$Dunn$and$Mr.$PlaX, At$the$moaon$hearing$on$the$evening$of$January$28,$2017,$Judge$Donnelly$instructed$the$Government “to$provide$a$list$of$individuals$detained,$pursuant$to$the$January$27,$2017$Execuave$Order,$to$the peaaoner’s$counsel.”$We$are$contacang$you$to$request$that$you$immediately$send$us$a$list,$updated daily,$of$all$individuals$detained$across$the$country$based$on$the$Execuave$Order,$including$anyone previously$detained$and$removed. Many$thanks, My$Khanh == My$Khanh$Ngo Law$Student$Intern Jerome$N.$Frank$Legal$Services$Organizaaon mk.ngo@ylsclinics.org<mailto:mk.ngo@ylsclinics.org> PRIVILEGED$AND$CONFIDENTIAL This$eQmail$message$is$intended$only$for$the$use$of$the$individual$or$enaty$to$which$it$is$addressed$and may$contain$informaaon$that$is$privileged,$conﬁdenaal$and$exempt$from$disclosure.$$$If$you$are$not$the intended$recipient,$please$do$not$disseminate,$distribute$or$copy$this$communicaaon,$by$eQmail$or otherwise.$$Instead,$please$noafy$me$immediately$by$return$eQmail$(including$the$original$message$in your$reply)$and$by$telephone$and$then$delete$and$discard$all$copies$of$the$eQmail.
Page)2)of)2

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 13 of 70 PageID #: 582
EXHIBIT E

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 14 of 70 PageID #: 583 Wednesday,)February)1,)2017)at)10:50:59)PM)Eastern)Standard)Time
Subject: Re:$[Wirac]$Order$regarding$List$of$Detained$and/or$Removed$Class$Members Date: Tuesday,$January$31,$2017$at$9:49:55$PM$Eastern$Standard$Time From: PlaM,$Steven$A.$(CIV)$(sent$by$wiracUbounces@mailman.yale.edu$<wiracU
bounces@mailman.yale.edu>) To: My$Khanh$Ngo CC: wirac@mailman.yale.edu,$Karen$Tumlin,$Stephen$Poellot,$Melissa$Keaney,$Lee$Gelernt,$Becca
Heller,$Dunn,$ScoM$(USANYE),$Jusbn$Cox,$Omar$Jadwat,$Cecillia$Wang
Dear$Ms.$Ngo,
Judge$Donnelly$has$ordered$us$to$provide$a$list$of$persons$who$are$detained$under$the$January$27$Execubve$Order. There$are$two$agencies$relevant$to$this$list:$Customs$and$Border$Protecbon,$and$Immigrabon$and$Customs Enforcement.$At$this$bme,$we$are$not$aware$of$CBP$detaining$any$individual$anywhere$in$the$country$under$the Execubve$Order.$By$“detained”,$I$do$not$mean$individuals$who$are$being$processed$at$a$port$of$entry.
CBP$hopes$to$conﬁrm$this$statement$within$the$next$day.$CBP$can$conﬁrm$at$this$bme,$however,$that$there$are$no individuals$being$detained$under$the$Execubve$Order$at$JFK$Airport$in$New$York.
ICE$can$conﬁrm$that$it$is$not$currently$detaining$any$individuals$under$the$Execubve$Order.
As$you$know,$Judge$Donnelly$directed$the$parbes$to$work$together$concerning$this$maMer.$If$you$are$aware$of$any individuals$being$unlawfully$detained,$please$let$us$know$and$we$will$ﬁnd$out$what’s$going$on.
We$are$doing$our$best$to$give$you$concrete$informabon$and$ﬁrm$assurances.$I$will$provide$a$status$update$tomorrow, by$5pm$EST$at$the$latest$but$hopefully$earlier.
Best,
Steve
UUUUUUUU$Original$message$UUUUUUUU From:$"PlaM,$Steven$A.$(CIV)"$<splaM@CIV.USDOJ.GOV> Date:$1/31/17$5:03$PM$(GMTU05:00) To:$My$Khanh$Ngo$<mk.ngo@ylsclinics.org> Cc:$"Dunn,$ScoM$(USANYE)"$<ScoM.Dunn@usdoj.gov>,$wirac@mailman.yale.edu,$Cecillia$Wang$<cwang@aclu.org>, Lee$Gelernt$<LGELERNT@aclu.org>,$Omar$Jadwat$<OJadwat@aclu.org>,$Jusbn$Cox$<cox@nilc.org>,$Becca$Heller <Bheller@refugeerights.org>,$Stephen$Poellot$<spoellot@refugeerights.org>,$Melissa$Keaney$<keaney@nilc.org>, Karen$Tumlin$<tumlin@nilc.org> Subject:$RE:$Order$regarding$List$of$Detained$and/or$Removed$Class$Members
Dear$Ms.$Ngo,
We$are$sbll$working$to$get$conﬁrmabon$from$our$client$agencies.$We$hope$to$have$that$later$tonight$for$you.
Steve
From:$My$Khanh$Ngo$[mailto:mk.ngo@ylsclinics.org] Sent:$Tuesday,$January$31,$2017$9:24$AM To:$PlaM,$Steven$A.$(CIV)$<splaM@CIV.USDOJ.GOV> Cc:$Dunn,$ScoM$(USANYE)$<ScoM.Dunn@usdoj.gov>;$wirac@mailman.yale.edu;$Cecillia$Wang$<cwang@aclu.org>;$Lee Gelernt$<LGELERNT@aclu.org>;$Omar$Jadwat$<OJadwat@aclu.org>;$Jusbn$Cox$<cox@nilc.org>;$Becca$Heller
Page)1)of)3

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 15 of 70 PageID #: 584
<Bheller@refugeerights.org>;$Stephen$Poellot$<spoellot@refugeerights.org>;$Melissa$Keaney$<keaney@nilc.org>; Karen$Tumlin$<tumlin@nilc.org> Subject:$Re:$Order$regarding$List$of$Detained$and/or$Removed$Class$Members
Mr.$PlaM:
Thank$you$for$your$message.$It$has$already$been$two$and$a$half$days$since$the$Court$ordered$Respondents$to$provide these$lists.$Please$conﬁrm$that$you$will$provide$us$a$list$by$5$p.m.$today$of$all$individuals$detained$under$the Execubve$Order,$including$those$previously$detained$and$released$or$removed,$and$conﬁrm$that$you$will$update$this list$daily.$If$we$don’t$receive$a$list$by$5$p.m.$today,$we$will$be$seeking$intervenbon$from$the$Court.
My$Khanh
On$Jan$30,$2017,$at$21:36,$PlaM,$Steven$A.$(CIV)$<Steven.A.PlaM@usdoj.gov<mailto:Steven.A.PlaM@usdoj.gov>> wrote: Dear$Ms.$Ngo,
I$wanted$to$touch$base$about$your$request.$Unfortunately,$I$do$not$have$anything$to$provide$you$yet,$but$I$will$keep you$updated.
Best,
Steve
Steven$A.$PlaM Trial$AMorney U.S.$Department$of$Jusbce$|$Civil$Division$|$Oﬃce$of$Immigrabon$Libgabon$|$District$Court$Secbon P.O.$Box$868$|$Ben$Franklin$Stabon$|$Washington,$DC$20044
$|$(202)$305U7000$(fax)$|$steven.a.plaM@usdoj.gov<mailto:steven.a.plaM@usdoj.gov> [Descripbon:$Descripbon:$Descripbon:$cid:image001.jpg@01CA8936.0709C300] ________________________________ The$contents$of$this$message$may$be$privileged$and$conﬁdenbal.$If$this$message$has$been$received$in$error,$please delete$it$without$reading$it$and$immediately$contact$the$sender. Your$receipt$of$this$message$is$not$intended$to$waive$any$applicable$privilege.$Please$do$not$disseminate$this$message without$the$permission$of$the$author.
From:$My$Khanh$Ngo$[mailto:mk.ngo@ylsclinics.org] Sent:$Monday,$January$30,$2017$7:20$AM To:$Dunn,$ScoM$(USANYE)$<ScoM.Dunn@usdoj.gov<mailto:ScoM.Dunn@usdoj.gov>>;$PlaM,$Steven$A.$(CIV) <splaM@CIV.USDOJ.GOV<mailto:splaM@CIV.USDOJ.GOV>> Cc:$wirac@mailman.yale.edu<mailto:wirac@mailman.yale.edu>;$Cecillia$Wang <cwang@aclu.org<mailto:cwang@aclu.org>>;$Lee$Gelernt$<LGELERNT@aclu.org<mailto:LGELERNT@aclu.org>>; Omar$Jadwat$<OJadwat@aclu.org<mailto:OJadwat@aclu.org>>;$Jusbn$Cox$<cox@nilc.org<mailto:cox@nilc.org>>; Becca$Heller$<Bheller@refugeerights.org<mailto:Bheller@refugeerights.org>>;$Stephen$Poellot <spoellot@refugeerights.org<mailto:spoellot@refugeerights.org>>;$Melissa$Keaney <keaney@nilc.org<mailto:keaney@nilc.org>>;$Karen$Tumlin$<tumlin@nilc.org<mailto:tumlin@nilc.org>> Subject:$Order$regarding$List$of$Detained$and/or$Removed$Class$Members
Mr.$Dunn$and$Mr.$PlaM,
At$the$mobon$hearing$on$the$evening$of$January$28,$2017,$Judge$Donnelly$instructed$the$Government$“to$provide$a
Page)2)of)3

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 16 of 70 PageID #: 585
list$of$individuals$detained,$pursuant$to$the$January$27,$2017$Execubve$Order,$to$the$pebboner’s$counsel.”$We$are contacbng$you$to$request$that$you$immediately$send$us$a$list,$updated$daily,$of$all$individuals$detained$across$the country$based$on$the$Execubve$Order,$including$anyone$previously$detained$and$removed. Many$thanks, My$Khanh == My$Khanh$Ngo Law$Student$Intern Jerome$N.$Frank$Legal$Services$Organizabon mk.ngo@ylsclinics.org<mailto:mk.ngo@ylsclinics.org><mailto:mk.ngo@ylsclinics.org> PRIVILEGED$AND$CONFIDENTIAL This$eUmail$message$is$intended$only$for$the$use$of$the$individual$or$enbty$to$which$it$is$addressed$and$may$contain informabon$that$is$privileged,$conﬁdenbal$and$exempt$from$disclosure.$$$If$you$are$not$the$intended$recipient,$please do$not$disseminate,$distribute$or$copy$this$communicabon,$by$eUmail$or$otherwise.$$Instead,$please$nobfy$me immediately$by$return$eUmail$(including$the$original$message$in$your$reply)$and$by$telephone$and$then$delete$and discard$all$copies$of$the$eUmail. _______________________________________________ Wirac$mailing$list Wirac@mailman.yale.edu hMp://mailman.yale.edu/mailman/lisbnfo/wirac
Page)3)of)3

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 17 of 70 PageID #: 586
EXHIBIT F

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 18 of 70 PageID #: 587
From: My Khanh Ngo mk.ngo@ylsclinics.org Subject: Re: Order regarding List of Detained and/or Removed Class Members
Date: February 1, 2017 at 3:51 PM To: Platt, Steven A. (CIV) Steven.A.Platt@usdoj.gov Cc: Dunn, Scott (USANYE) Scott.Dunn@usdoj.gov, wirac@mailman.yale.edu, Cecillia Wang cwang@aclu.org, Lee Gelernt LGELERNT@aclu.org, Omar Jadwat OJadwat@aclu.org, Justin Cox cox@nilc.org, Becca Heller Bheller@refugeerights.org, Stephen Poellot spoellot@refugeerights.org, Melissa Keaney keaney@nilc.org, Karen Tumlin tumlin@nilc.org
Dear Mr. Platt,
Thank you for the current information and the promise to provide further and more concrete information.
However, the government's delay in providing this information makes this response unfortunately inadequate. The Court ordered this information produced to us on Saturday. It is now Wednesday. The government's delay has meant that we have been unable to adequately conﬁrm whether the government has been complying with the stay order, which was the point of the ordered list. Under these circumstances, we understand the Court's order to require a list of everyone who is or was detained under the Executive Order since the stay was entered, including those who were detained and deported.
In light of the long delay in hearing from the government and this non-response, we intend to seek intervention from the Court.
Best, My Khanh
On Jan 31, 2017, at 9:49 PM, Platt, Steven A. (CIV) <Steven.A.Platt@usdoj.gov> wrote:
Dear Ms. Ngo,
Judge Donnelly has ordered us to provide a list of persons who are detained under the January 27 Executive Order. There are two agencies relevant to this list: Customs and Border Protection, and Immigration and Customs Enforcement. At this time, we are not aware of CBP detaining any individual anywhere in the country under the Executive Order. By “detained”, I do not mean individuals who are being processed at a port of entry.
CBP hopes to conﬁrm this statement within the next day. CBP can conﬁrm at this time, however, that there are no individuals being detained under the Executive Order at JFK Airport in New York.
ICE can conﬁrm that it is not currently detaining any individuals under the Executive Order.
As you know, Judge Donnelly directed the parties to work together concerning this matter. If you are aware of any individuals being unlawfully detained, please let us know and we will ﬁnd out what’s going on.
We are doing our best to give you concrete information and ﬁrm assurances. I will provide a status update tomorrow, by 5pm EST at the latest but hopefully earlier.
Best,
Steve
-------- Original message -------From: "Platt, Steven A. (CIV)" <splatt@CIV.USDOJ.GOV> Date: 1/31/17 5:03 PM (GMT-05:00) To: My Khanh Ngo <mk.ngo@ylsclinics.org> Cc: "Dunn, Scott (USANYE)" <Scott.Dunn@usdoj.gov>, wirac@mailman.yale.edu, Cecillia Wang <cwang@aclu.org>, Lee Gelernt <LGELERNT@aclu.org>, Omar Jadwat <OJadwat@aclu.org>, Justin Cox <cox@nilc.org>, Becca Heller <Bheller@refugeerights.org>, Stephen Poellot <spoellot@refugeerights.org>, Melissa Keaney <keaney@nilc.org>, Karen Tumlin <tumlin@nilc.org> Subject: RE: Order regarding List of Detained and/or Removed Class Members
Dear Ms. Ngo,
We are still working to get conﬁrmation from our client agencies. We hope to have that later tonight for you.
Steve

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 19 of 70 PageID #: 588
Steve
From: My Khanh Ngo [mailto:mk.ngo@ylsclinics.org] Sent: Tuesday, January 31, 2017 9:24 AM To: Platt, Steven A. (CIV) <splatt@CIV.USDOJ.GOV> Cc: Dunn, Scott (USANYE) <Scott.Dunn@usdoj.gov>; wirac@mailman.yale.edu; Cecillia Wang <cwang@aclu.org>; Lee Gelernt <LGELERNT@aclu.org>; Omar Jadwat <OJadwat@aclu.org>; Justin Cox <cox@nilc.org>; Becca Heller <Bheller@refugeerights.org>; Stephen Poellot <spoellot@refugeerights.org>; Melissa Keaney <keaney@nilc.org>; Karen Tumlin <tumlin@nilc.org> Subject: Re: Order regarding List of Detained and/or Removed Class Members
Mr. Platt:
Thank you for your message. It has already been two and a half days since the Court ordered Respondents to provide these lists. Please conﬁrm that you will provide us a list by 5 p.m. today of all individuals detained under the Executive Order, including those previously detained and released or removed, and conﬁrm that you will update this list daily. If we don’t receive a list by 5 p.m. today, we will be seeking intervention from the Court.
My Khanh
On Jan 30, 2017, at 21:36, Platt, Steven A. (CIV) <Steven.A.Platt@usdoj.gov<mailto:Steven.A.Platt@usdoj.gov>> wrote: Dear Ms. Ngo,
I wanted to touch base about your request. Unfortunately, I do not have anything to provide you yet, but I will keep you updated.
Best,
Steve
Steven A. Platt Trial Attorney U.S. Department of Justice | Civil Division | Ofﬁce of Immigration Litigation | District Court Section P.O. Box 868 | Ben Franklin Station | Washington, DC 20044
| (202) 305-7000 (fax) | steven.a.platt@usdoj.gov<mailto:steven.a.platt@usdoj.gov> [Description: Description: Description: cid:image001.jpg@01CA8936.0709C300] ________________________________ The contents of this message may be privileged and conﬁdential. If this message has been received in error, please delete it without reading it and immediately contact the sender. Your receipt of this message is not intended to waive any applicable privilege. Please do not disseminate this message without the permission of the author.
From: My Khanh Ngo [mailto:mk.ngo@ylsclinics.org] Sent: Monday, January 30, 2017 7:20 AM To: Dunn, Scott (USANYE) <Scott.Dunn@usdoj.gov<mailto:Scott.Dunn@usdoj.gov>>; Platt, Steven A. (CIV) <splatt@CIV.USDOJ.GOV<mailto:splatt@CIV.USDOJ.GOV>> Cc: wirac@mailman.yale.edu<mailto:wirac@mailman.yale.edu>; Cecillia Wang <cwang@aclu.org<mailto:cwang@aclu.org>>; Lee Gelernt <LGELERNT@aclu.org<mailto:LGELERNT@aclu.org>>; Omar Jadwat <OJadwat@aclu.org<mailto:OJadwat@aclu.org>>; Justin Cox <cox@nilc.org<mailto:cox@nilc.org>>; Becca Heller <Bheller@refugeerights.org<mailto:Bheller@refugeerights.org>>; Stephen Poellot <spoellot@refugeerights.org<mailto:spoellot@refugeerights.org>>; Melissa Keaney <keaney@nilc.org<mailto:keaney@nilc.org>>; Karen Tumlin <tumlin@nilc.org<mailto:tumlin@nilc.org>> Subject: Order regarding List of Detained and/or Removed Class Members
Mr. Dunn and Mr. Platt,
At the motion hearing on the evening of January 28, 2017, Judge Donnelly instructed the Government “to provide a list of individuals detained, pursuant to the January 27, 2017 Executive Order, to the petitioner’s counsel.” We are

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 20 of 70 PageID #: 589
list of individuals detained, pursuant to the January 27, 2017 Executive Order, to the petitioner’s counsel.” We are contacting you to request that you immediately send us a list, updated daily, of all individuals detained across the country based on the Executive Order, including anyone previously detained and removed.
Many thanks, My Khanh
== My Khanh Ngo Law Student Intern Jerome N. Frank Legal Services Organization mk.ngo@ylsclinics.org<mailto:mk.ngo@ylsclinics.org><mailto:mk.ngo@ylsclinics.org>
PRIVILEGED AND CONFIDENTIAL This e-mail message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, conﬁdential and exempt from disclosure. If you are not the intended recipient, please do not disseminate, distribute or copy this communication, by e-mail or otherwise. Instead, please notify me immediately by return e-mail (including the original message in your reply) and by telephone and then delete and discard all copies of the e-mail.

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 21 of 70 PageID #: 590
EXHIBIT G

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 22 of 70 PageID #: 591
The Jerome N. Frank Legal Services Organization
YALE LAW SCHOOL
‘’
February 2, 2017
Via Email (Steven.A.Platt@usdoj.gov) Stephen Platt, Esq. U.S. Department of Justice, Civil Division Office of Immigration Litigation – District Court P.O. Box 868, Ben Franklin Station Washington, DC 20044
Re: Darweesh et al. v. Trump et al., 17-cv-00480 (CBA)
Dear Mr. Platt,
We are writing to follow up on our email correspondence on January 30, January 31, and February 1, in which we have asked the government to provide Plaintiffs’ counsel with the list of names ordered by Judge Donnelly on January 28. Following today’s status conference, we reiterate this request. Specifically, we request that the government provide us with the names of the following: (1) all individuals who have been held in the government’s custody upon arrival at a U.S. port of entry on the basis of the January 27 Executive Order or its implementing instructions (including but not limited to the Department of State visa revocation letter of January 27), regardless of whether they were ultimately released into the United States or not; and (2) all individuals who have been removed from the United States on the basis of the January 27 Executive Order or its implementing instructions (including but not limited to the Department of State visa revocation letter of January 27). Please confirm that you will update these lists on a daily basis. 
Because this is the fourth time we are requesting the government’s compliance with the court’s order, we ask that you provide the requested information by 2 pm on Friday, February 3rd. If we do not receive the information by then, we plan to file an appropriate motion with the court.
Sincerely,
Muneer I. Ahmad, Esq. Counsel for Plaintiffs
P.O. BOX 209090, NEW HAVEN, CONNECTICUT 06520-9090 • TELEPHONE 203 432-4800 • FACSIMILE 203 432-1426 COURIER ADDRESS 127 WALL STREET, NEW HAVEN, CONNECTICUT 06511

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 23 of 70 PageID #: 592
EXHIBIT H

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 24 of 70 PageID #: 593

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 25 of 70 PageID #: 594
EXHIBIT I

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 26 of 70 PageID #: 595

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 27 of 70 PageID #: 596

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 28 of 70 PageID #: 597
EXHIBIT J

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 29 of 70 PageID #: 598

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 30 of 70 PageID #: 599

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 31 of 70 PageID #: 600

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 32 of 70 PageID #: 601

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 33 of 70 PageID #: 602

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 34 of 70 PageID #: 603

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 35 of 70 PageID #: 604

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 36 of 70 PageID #: 605

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 37 of 70 PageID #: 606

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 38 of 70 PageID #: 607

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 39 of 70 PageID #: 608

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 40 of 70 PageID #: 609

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 41 of 70 PageID #: 610

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 42 of 70 PageID #: 611

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 43 of 70 PageID #: 612

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 44 of 70 PageID #: 613

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 45 of 70 PageID #: 614

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 46 of 70 PageID #: 615

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 47 of 70 PageID #: 616

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 48 of 70 PageID #: 617

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 49 of 70 PageID #: 618

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 50 of 70 PageID #: 619

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 51 of 70 PageID #: 620

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 52 of 70 PageID #: 621

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 53 of 70 PageID #: 622

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 54 of 70 PageID #: 623

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 55 of 70 PageID #: 624

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 56 of 70 PageID #: 625

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 57 of 70 PageID #: 626

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 58 of 70 PageID #: 627

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 59 of 70 PageID #: 628

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 60 of 70 PageID #: 629

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 61 of 70 PageID #: 630

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 62 of 70 PageID #: 631

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 63 of 70 PageID #: 632

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 64 of 70 PageID #: 633

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 65 of 70 PageID #: 634

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 66 of 70 PageID #: 635

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 67 of 70 PageID #: 636

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 68 of 70 PageID #: 637

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 69 of 70 PageID #: 638

Case 1:17-cv-00480-CBA Document 53-3 Filed 02/07/17 Page 70 of 70 PageID #: 639

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 1 of 64 PageID #: 640

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 2 of 64 PageID #: 641

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 3 of 64 PageID #: 642

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 4 of 64 PageID #: 643

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 5 of 64 PageID #: 644

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 6 of 64 PageID #: 645

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 7 of 64 PageID #: 646

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 8 of 64 PageID #: 647

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 9 of 64 PageID #: 648

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 10 of 64 PageID #: 649

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 11 of 64 PageID #: 650

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 12 of 64 PageID #: 651

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 13 of 64 PageID #: 652

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 14 of 64 PageID #: 653

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 15 of 64 PageID #: 654

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 16 of 64 PageID #: 655

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 17 of 64 PageID #: 656

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 18 of 64 PageID #: 657

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 19 of 64 PageID #: 658

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 20 of 64 PageID #: 659

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 21 of 64 PageID #: 660

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 22 of 64 PageID #: 661

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 23 of 64 PageID #: 662

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 24 of 64 PageID #: 663

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 25 of 64 PageID #: 664

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 26 of 64 PageID #: 665

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 27 of 64 PageID #: 666

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 28 of 64 PageID #: 667

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 29 of 64 PageID #: 668

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 30 of 64 PageID #: 669

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 31 of 64 PageID #: 670

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 32 of 64 PageID #: 671

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 33 of 64 PageID #: 672

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 34 of 64 PageID #: 673

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 35 of 64 PageID #: 674

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 36 of 64 PageID #: 675

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 37 of 64 PageID #: 676

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 38 of 64 PageID #: 677

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 39 of 64 PageID #: 678

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 40 of 64 PageID #: 679

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 41 of 64 PageID #: 680

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 42 of 64 PageID #: 681

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 43 of 64 PageID #: 682

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 44 of 64 PageID #: 683

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 45 of 64 PageID #: 684

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 46 of 64 PageID #: 685

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 47 of 64 PageID #: 686

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 48 of 64 PageID #: 687

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 49 of 64 PageID #: 688

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 50 of 64 PageID #: 689

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 51 of 64 PageID #: 690

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 52 of 64 PageID #: 691

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 53 of 64 PageID #: 692

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 54 of 64 PageID #: 693

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 55 of 64 PageID #: 694

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 56 of 64 PageID #: 695

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 57 of 64 PageID #: 696

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 58 of 64 PageID #: 697

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 59 of 64 PageID #: 698

Case 1:17-cv-00480-CBA Document 53-4 Filed 02/07/17 Page 60 of 64 PageID #: 699
EXHIBIT K

CCaassee12::1177--ccvv--0000478002--CSBJOA-GDJoScumDoecnut m53e-n4t 5FilFeidle0d20/017/2/197/17PaPgaeg6e11ooff644 PPaaggeeIDID#:#7:5010

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 Ali Khoshbakhti Vayeghan,

12

Petitioner,

13

v.

14 Kelly, et al.,

15

Respondents.

16

) )

Case No. CV 17-0702

)

)

)

)

)

)

)

)

)

)

17

18

19

On January 28, 2017, Petitioner Vayeghan filed a Petition for Writ of Habeas

20 Corpus and Complaint for Declaratory and Injunctive Relief, an Order to Show Cause re

21 Preliminary Injunction, and an Ex Parte Application for Temporary Restraining Order

22 (“TRO”) staying his removal from the United States, and ordering his release from the

23 custody of the Department of Homeland Security. [Doc. ##1, 2.] Before the Court could

24 rule on the TRO, he was placed on a flight to Dubai to be removed to Iran. On January

25 29, 2017, he filed an Amended Ex Parte Application for Temporary Restraining Order 26 (“Amended TRO”), which is currently before the Court. [Doc. # 4.] 27

28

-1-

CCaassee12::1177--ccvv--0000478002--CSBJOA-GDJoScumDoecnut m53e-n4t 5FilFeidle0d20/017/2/197/17PaPgaeg6e22ooff644 PPaaggeeIDID#:#7:5021

1

Federal Rule of Civil Procedure 65 governs the issuance of TROs and preliminary

2 injunctions, and courts apply the same standard to both. See Credit Bureau Connection,

3 Inc. v. Pardini, __ F. Supp. 2d __, 2010 WL 2737128, at *5 (E.D. Cal. July 12, 2010)

4 (citing Ne. Ohio Coal. for the Homeless & Serv. Employees Int’l Union, Local 1199 v.

5 Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006)). The purpose of such injunctive relief is

6 to preserve the rights and relative positions of the parties, i.e., the status quo, until a final
7 judgment issues. See U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th 8 Cir. 2010) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 9 L.Ed.2d 175 (1981)). 10

11

Having reviewed and considered Petitioner’s written submissions, the Court finds

12 that:

13

1. Petitioner has demonstrated a strong likelihood of success in establishing that

14

15

removal violates the Establishment Clause, the Immigration and Nationality Act,

16

and his rights to Equal Protection guaranteed by the United States Constitution.

17

See 8 U.S.C. §§ 1151, 1152(a)(1)(A) (“[N]o person shall receive any preference or

18

priority or be discriminated against in the issuance of an immigrant visa because of

19

the person’s race, sex, nationality, place of birth, or place of residence.”); Johnson

20

v. California, 543 U.S. 499, 506–508 (2005); Board of Educ. Of Kiryas Joel Vill.

21

Sch. Dist. V. Grumet, 512 U.S. 687, 696, 702–703 (1994); Vill. of Arlington

22

Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266–67 (1977).

23

24 2. There is a strong likelihood that Petitioner is likely to suffer irreparable harm in the

25

absence of interim injunctive relief.

26

27

28

-2-

CCaassee12::1177--ccvv--0000478002--CSBJOA-GDJoScumDoecnut m53e-n4t 5FilFeidle0d20/017/2/197/17PaPgaeg6e33ooff644 PPaaggeeIDID#:#7:5032

1 3. The balance of equities weighs sharply in favor of Petitioner and granting interim

2

injunctive relief.

3

4 4. The Court must consider the public interest in upholding constitutional rights.

5

Preminger v. Pincipi, 422 F.3d 815, 826 (9th Cir. 2005). Given the constitutional

6

rights at issue in this case, interim injunctive relief is in the public interest.

7

8

In light of the foregoing, IT IS HEREBY ORDERED THAT:

9

10

1. Respondents are enjoined and restrained from barring Petitioner’s return to the

11

United States.

12

13

2. Respondents shall transport Petitioner back to the United States and admit him

14

15

under the terms of his previously approved visa.

16

17

3. Respondents shall communicate the terms of this Court’s order immediately to

18

officers in Dubai, and to authorities in the airport in Dubai holding Petitioner on

19

Respondents’ orders.

20 21 4. Respondents shall file their opposition to Petitioners’ Ex Parte Application by

22

February 3, 2017. Petitioner shall file her reply by February 7, 2017.

23

24 5. Respondents shall appear before the assigned judge on February 10, 2017 at 9:30

25

a.m. to show cause why the preliminary injunctive relief sought in the Ex Parte

26

27

28

-3-

CCaassee12::1177--ccvv--0000478002--CSBJOA-GDJoScumDoecnut m53e-n4t 5FilFeidle0d20/017/2/197/17PaPgaeg6e44ooff644 PPaaggeeIDID#:#7:5043

1 6. Application for Temporary Restraining Order and Order to Show Cause re

2

Preliminary Injunction should not be granted.

3 4 IT IS SO ORDERED.

5

6

7 DATED: January 29, 2017 8 9

DOLLY M. GEE UNITED STATES DISTRICT JUDGE

10

11

12

13

14

15

16 DATED: January 29, 2017 17
18

DOLLY M. GEE UNITED STATES DISTRICT JUDGE

19

20

21

22

23

24

25

26

27

28

-4-

Case 1:17-cv-00480-CBA Document 53-5 Filed 02/07/17 Page 1 of 8 PageID #: 704

1 Carmen Iguina (CA SBN #277369)
2 Jennifer Pasquarella (CA SBN #263241) Ahilan Arulanantham (CA SBN# 237841)
3 Peter Bibring (CA SBN #223981)
4 ACLU of Southern California 1313 West 8th Street
5 Los Angeles, CA 90017
6 Telephone: (213) 977-9500 Facsimile: (213) 977-5297
7 Email: ciguina@aclusocal.org
8
Stacy Tolchin (CA SBN #217431) 9 Megan Brewer (CA SBN#268248)
10 Law Offices of Stacy Tolchin 634 S. Spring St., Suite 500A
11 Los Angeles, CA 90014
12 Telephone: (213) 622-7450 Facsimile: (213) 622-7233
13 Email: Stacy@Tolchinimmigration.com
14 Email: Megan@Tolchinimmigration.com

15

16

UNITED STATES DISTRICT COURT FOR THE

17

CENTRAL DISTRICT OF CALIFORNIA

18

19 Khanon Mahindokht Azad, et al.

20

21

Petitioners,

22

v.

Case No. 2:17-cv-00706
DECLARATION OF SARA YARJANI

23
Donald Trump, et al.

24

25

Respondents.

26

27

28

Case 1:17-cv-00480-CBA Document 53-5 Filed 02/07/17 Page 2 of 8 PageID #: 705

1

Declaration of Sara Yarjani

2

I, Sara Yarjani, hereby declare as follows:

3 1. My name is Sara Yarjani. I was born on July 17, 1981. If called as a witness,

4 I would and could competently testify to the facts stated herein, all of which are

5 within my own personal knowledge:

6 2. I am a citizen of the Islamic Republic of Iran. I was born in Australia.

7 3. I have been a permanent resident of Austria for more than ten years.

8 4. Since September 2015, I have been a student at the California Institute of

9 Human Science, pursuing a Master of Arts degree in holistic health. I only have

10 eight months left in my two-year program and have a grade point average of 3.89.

11 5. I entered the United States to pursue my master’s degree on September 20,

12 2015 on a multi-entry student visa (an F1 visa, K3813594) that expires on

13 September 13, 2017 (in the summer of 2016, I visited family in Canada and re-

14 entered on my student visa on September 16, 2016, just before the fall quarter

15 began). Attached as Exhibit A is a true and correct copy of my student visa.

16 6. From November 21, 2016 until Friday, January 27, 2017, I spent my winter

17 holiday traveling. I visited family and friends in Canada, Germany, France, and

18 Austria.

19 7. On Friday, January 27, 2017, after transiting through Norway from Austria, I

20 boarded a Norwegian Airlines flight from Oslo to Los Angeles LAX airport.

21 8. I landed at LAX airport on Norwegian Airlines flight 7081 at 8:35 pm

22 pacific time on Friday, January 27, 2017.

23 9. When I arrived at passport control, the Customs and Border Protection

24 officer there told me I needed to go to “secondary inspection.” I did not know what

25 this was, as I had never had difficulty entering the United States before. Agents

26 had always been friendly and I had just been waived through after a short

27 interaction at passport control.

28 10. I was then escorted by a CBP officer to a back room and was told to wait

1

Case 1:17-cv-00480-CBA Document 53-5 Filed 02/07/17 Page 3 of 8 PageID #: 706
1 there, along with others. There, I was asked a few questions about my citizenship, 2 my visa, why I had left the United States, and why I was traveling to the United 3 States. The officer also asked whether I had traveled to Iran during this trip, which 4 I had not done, and I told him I had not. 5 11. I was then taken by a male officer through a door to another area and two 6 female officers took me to a corridor. I was told to remove my shawl, phone, 7 jewelry, and shoelaces and to place these items in my bag. They made me sign a 8 form documenting the cash I had with me, and told me to put the cash in my 9 pocket. I was then separated from my possessions. The officers then took me to a 10 small room and proceeded to carry out a full-body pat down in an aggressive 11 manner, as if I had done something wrong. 12 12. I was later taken to a small room with others who were waiting. The room 13 had a big glass mirror window so that the officers could see in and we could not 14 clearly see outside the room. At that point the few people in the room included 15 others who I later understood were from “the EO Countries” (as they called them) 16 and other people who were not. 17 13. After a lengthy wait, I was taken to a small room with an officer who told 18 me, “I am your case worker.” He read a long statement from a computer screen 19 that included a warning that if I do not provide accurate information, it will be held 20 against me. After swearing an oath, I was asked a series of detailed questions, 21 including about my graduate school, my parents, whether I had recently made trips 22 to Iran, and why I was born in Australia. As I was answering, the officer was 23 checking my answers against his computer screen. This was all done in an 24 intimidating manner – with questions asked quickly and forcefully. Like with the 25 aggressive pat down, it made me feel that I had done something wrong and I was 26 being investigated, when all I was trying to do was to return and continue my 27 graduate studies. 28 14. After the questions, the officer said that, I was not admissible to the United
2

Case 1:17-cv-00480-CBA Document 53-5 Filed 02/07/17 Page 4 of 8 PageID #: 707
1 States, but that his determination would be reviewed by his superior. And he asked 2 me if I understood and if I had any questions. I told him I had a question and 3 asked, “why am I not admissible to the United States when I have a valid student 4 visa?” He said, “as of now, the visa that you had is no longer valid” and therefore I 5 would be sent back. 6 15. The officer then said, “You now have two options. Either you comply, and 7 agree to leave voluntarily and sign a form, or you will be forcibly removed, in 8 which case you would face a reentry ban of one to five years or longer.” The 9 officer was forceful and made it seem that if I did not comply, I would be violating 10 the law. Thus, I felt I had no choice and I said that, if he was asking or telling me 11 to do it, I will comply. I did not want to do it. 12 16. All this time, I had not been allowed the ability to call anyone, as I was 13 separated from my phone and not allowed access to it. I was told that I would be 14 allowed to make a call only after my interview and after all my paperwork was 15 finished. 16 17. I was then sent back to the detention room, just before midnight on Friday, 17 January 27, 2017. 18 18. The officer then took me to the small room where they had carried out the 19 full-body pat down. There, the officer gave me a form “to be completed by alien 20 when application for admission withdrawn.” This document references: “I 21 understand that my admissibility is questioned for the above reasons, which I have 22 read or which have been read to me in the English language.” But no reasons were 23 listed, and the officers never explained the form to me. I was given a copy of the 24 form and the officer escorted me back to my bag to put the copy of the form away. 25 I know at least one other person did not receive a copy because I served as a 26 volunteer interpreter when he signed. Attached as Exhibit B is a true and correct 27 copy of the form I received. After I was deported and I got my documents back, I 28 saw that they put a stamp in my passport saying “Application for admission
3

Case 1:17-cv-00480-CBA Document 53-5 Filed 02/07/17 Page 5 of 8 PageID #: 708
1 withdrawn.” Attached as Exhibit C is a true and correct copy of the page in my 2 passport bearing the stamp. 3 19. I was then taken back to the detention room, and later to another room where 4 officers took my fingerprints and photograph. 5 20. While I was waiting in the corridor to have my finger prints to be taken, one 6 officer apologized and said that these were orders they had from the chief and they 7 were just following them. He also said, “don’t worry – the visas will have to be 8 reissued.” 9 21. At or around 12:25 am pacific time on January 28, 2017, I was allowed to 10 make a call, and I called my sister. 11 22. At some point in the middle of the night, the officers took us to a larger 12 room. There were nine of us, seven from “EO Countries” (I know this because at 13 one point I heard an officer tell another officer that there were seven of us from 14 “EO Countries”). There were cots and blankets that two people who were ill used 15 to sleep. For some time, I was also able to use a cot as well. With the other 16 detainees, I was in the larger detention room until early in the morning, when the 17 officers took the nine of us to the small room, and then, later, back again to the big 18 room. 19 23. Early in the morning, there was a shift change and at some point in the 20 morning, they brought in apple sauce and juice because three of us told the officers 21 that we were very hungry and asked for food. 22 24. At some point, the officers were saying that there was a flight with many 23 people from “EO Countries” on board. I heard the officers say “we can’t mix them 24 with the ones here” and then another officer said, referring to us, “I will take them 25 back to the small room.” After the officers walked the other group in and sat them 26 down on the other side of the room from us, then another officer walked us out. 27 25. When we were being held in the small room, which did not have a 28 bathroom, if we had to go to the bathroom we had to knock on the door and then
4

Case 1:17-cv-00480-CBA Document 53-5 Filed 02/07/17 Page 6 of 8 PageID #: 709
1 were escorted to the restroom in the very first room I had been taken to, where 2 there were restrooms. Given the way the officer was right behind you when 3 walking, it was impossible to pause or talk to anyone else. 4 26. Being in the detention rooms, but especially the small room, made me very 5 anxious and I had a number of anxiety attacks. It was very scary to now know what 6 was happening and to feel like I was being punished for trying to study. 7 27. Sometime in the middle of the night, I overhead one of the officers asking a 8 colleague what he was supposed to do with me, a student with a 3.8 GPA, with 9 eight months left to graduate. All of this made me very anxious. 10 28. At some point, I asked officers if I could make another call. An officer took 11 me into the small interview room at about 5:50 am and let me use my phone in the 12 corridor for about 20 minutes. Around noon, I had asked to make another call. The 13 officer I asked was harsh and said no, that I was not allowed to access my phone 14 because I was in detention and I would have access to my phone only when on the 15 plane. 16 29. At that point, all we knew is that we were going to be put on flights back and 17 we were waiting. I kept asking officers when my flight would be and they told us 18 that different airlines would come at different times. At around 1:00 or 2:00 pm on 19 Saturday, February 28, 2017, the officers told me that Norwegian Airlines does not 20 fly until late that evening or at night. 21 30. By the afternoon, I had been there for so long that the person who had been 22 my “case worker” had gone home and was back again for his next shift. At some 23 point, I asked him if I could make another call and I told him that my family would 24 be worried because they did not know what was happening to me. The officer took 25 me into the area containing our bags and let me use my phone for a few minutes at 26 about 4:30 pm. 27 31. During that time, I was able to read messages I had received from friends 28 and family. They told me that my family members were talking to lawyers and
5

Case 1:17-cv-00480-CBA Document 53-5 Filed 02/07/17 Page 7 of 8 PageID #: 710
1 members of the U.S. Congress on my behalf. A friend I was able to talk to on the 2 phone told me that because people were working on my case I should ask if my 3 removal was final. He told me that a lawyer said that if I had a valid visa, I should 4 be able to stay and I should ask if my case was final or if there were any changes 5 with my case. I was afraid, because I had already been forced to sign the form, but 6 I asked the officer about the finality of my case. The officer said everything with 7 my case was final. 8 32. At some point in the afternoon, Norwegian Airlines staff came to get my 9 luggage and told me that my flight was scheduled to depart at 7:30 pm pacific time 10 on Saturday, January 28, 2017. 11 33. At around 6:45 or 7:00 pm pacific time on Saturday, January 28, 2017, 12 officers told me to get my carry-on bags. Two armed CBP officers, one in the front 13 and one behind, took me through storage rooms and back areas in the airport. The 14 officers also had my passport in an envelope of documents. I wasn’t allowed to 15 hold my own documents. They took me to the gate. At one point earlier, I had 16 overhead a supervisor telling officers to avoid lawyers and the press as they were 17 bringing other people to their flights. 18 34. Although I asked repeatedly, the officers did not allow me to use my phone 19 while I was still in the detention area during my last hours in detention. Thus, as 20 soon as I started walking with the officers, I asked if I could use the phone. I was 21 not allowed to do so. When we arrived at the gate they gave my documents to the 22 flight attendant to check me into the flight and then took me to a back area next to 23 the boarding tunnel. They told me that I would be the last one to board the flight. I 24 wanted to talk to the flight attendants because I had been having anxiety attacks 25 and I wanted to ask where my seat would be – after 18 hours of travel, and nearly 26 23 hours in detention, the thought of another 18 hours of travel made me very 27 anxious. But the officers said that I could not talk to airline staff and just told me in 28 a louder voice that I must follow the officers.
6

Case 1:17-cv-00480-CBA Document 53-5 Filed 02/07/17 Page 8 of 8 PageID #: 711

1 35. In the area outside the boarding gate, I was finally allowed to use my phone. 2 I made a call to my sister and got messages that a federal judge in New York had 3 ordered a nationwide stay of all removals. Before I was able to say anything, the 4 officers told me I had to hang up the phone and get on the plane. At that time, I 5 told the officer next to me, “I was just told that a federal judge has ruled and that 6 there is a stay on the executive order and it was against the law to put me on the 7 plane.” The officer said in response, “Oh – Wowza.” That was the officer’s only 8 response. 9 36. Having two armed officers telling me to do something, I felt very threatened. 10 They marched me to the plane and gave my documents to the head flight attendant 11 and then waited at the door of the plane until the flight attendants sat me in my 12 seat. I just sat there crying while the flight attendants comforted me. 13 37. My flight, Norwegian Airlines flight 7092, departed the United States at 14 7:36 pm pacific time on Saturday, January 28, 2017. A true and correct copy of my 15 boarding passes is attached as Exhibit D. 16 38. Not long after taking off, I started having a panic attack because I was afraid 17 I had lost my documents. I asked the flight attendants and the head flight attendant 18 told me that they had my documents but the officers had instructed them not to 19 give them to me until we left U.S. air space. 20 39. I was ultimately detained for nearly twenty-three hours. 21 I declare under penalty of perjury under the laws of the United States of America 22 that the foregoing is true and correct. Executed on February 2, 2017 in Vienna 23 Austria.

24

25

______________________

26

Sara Yarjani

27

28

7

Case 1:17-cv-00480-CBA Document 53-6 Filed 02/07/17 Page 1 of 9 PageID #: 712

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI,

on behalf of themselves and others similarly situated,

Pelilioners,

V.

DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY ("DHS"); U.S. CUSTOMS AND BORDER PROTECTION ("CBP"); JOHN KELLY, Secretary of OHS; KEVIN K. MCALEENAN, Acting Commissioner ofCBP; and JAMES T. MADDEN, New York Field Director, CBP.

No. 1: l 7-cv-00480

Respondents.

DECLARATION OF RAMEZ SNOBER

I, Ramez Snober, declare, pursuant to 28 U.S.C. § 1746 and subject to penalty of perjury, that
that following is true and correct:
1. My name is Ramez Snober, and I am a citizen of the Syrian Arab Republic. I was born in Damascus, Syria on August 22, 1980. I presently live with my family in Riyadh Kingdom of Saudi Arabia. I have lived in Saudi Arabia for twelve years. I work as a Windows-applications-development team leader at Saudi Telecom Company, and my legal sponsor, which foreigners working in Saudi Arabia are required to have, is Ejada Systems Co. Ltd. I have been employed by Ejada for four years. In Saudi Arabia I have a "resident identity'' card, which expires on May 16, 2021.
2. My wife, Daniah Al Ghorani, is also a Syrian citizen. She was born in Damascus, Syria on September 21, 1987. She has been living in Saudi Arabia for twenty-nine years.
3. My wife and I have two daughters: H.S., who is six years old, and Z.S. who is three years old. Both H.S. and Z.S. are also Syrian citizens. Even though they were born in Riyadh, Saudi Arabia, they do not have Saudi citizenship. Neither of my daughters has ever traveled to Syria.
1

Case 1:17-cv-00480-CBA Document 53-6 Filed 02/07/17 Page 2 of 9 PageID #: 713
4. My wife and I have not returned to Syria for approximately six years, since the civil war began. We did not think it was safe to travel there.
5. On or around December 25, 2016, I applied for B-1/B-2 non-immigrant visas for myself and my three family members so we could travel to the United States for vacation. The process of obtaining a U.S. visa is very rigorous for Syrian people living in Saudi Arabia. A Syrian citizen applying for a U.S. visa must demonstrate to the Consular Officer that he has strong ties to Saudi Arabia. I was required to provide a bank statement showing a high account balance, and an introduction letter from my employer showing I earned a high salary. ln the end, after meeting those requirements, we received the visas by mail on or about January 11, 2017.
6. I have traveled to the United States before. In 1986, when I was around six years old, I lived with my father, my mother, and my brother in Los Angeles, California. My father was a visiting mathematics professor at the University of California, Los Angeles. We lived in Los Angeles for eleven months, and I studied with my bother at an elementary school in Los Angeles.
7. After receiving our U.S. visas in January 2017, my family and I prepared for our vacation to Orlando, Florida to visit Disney World. My two daughters love the movie Frozen, and we were going to Disney World so they could meet their favorite cast of characters: Anna, Elsa, and Olaf. We also planned to visit other attractions for the children, including WonderWorks and SeaWorld. We were also planning to visit the outlets for shopping.
8. On January 28, 2017, at 6:25 AM (AST), my family and I departed from Riyadh on Saudi Arabian Airlines flight number SV37. We landed at Dulles International Airport on or around 12:20 PM (EST). We had a 5 hour 11 minute layover in Dulles until our flight left to Miami, Florida, on American Airlines flight number AA 1976.
9. After we got off the plane, my family and I went to U.S. Customs and Border Protection ("CBP"). We waited in line for approximately 30 minutes. At passport control, the agent did not stamp our passports with a U.S. stamp. Instead, he marked our customs declaration form with the letter ''R". We took our luggage and headed to the exit door. At the exit door, the security guard checked the declaration form and directed us to go to the right to enter a hall.
l 0. In the hall, a CBP officer asked me a lot of questions regarding the purpose of our visit. He asked us why we were traveling to the United States, and how long our stay would be. He also asked us about our residency in Saudi Arabia, and how long we had lived there. I explained that I had lived in Saudi Arabia for twelve years, my wife had lived in Saudi Arabia for twenty-nine years, and my two daughters were born there. I also explained that
2

Case 1:17-cv-00480-CBA Document 53-6 Filed 02/07/17 Page 3 of 9 PageID #: 714
my children bad never been to Syria and that neither my wife nor I had been to Syria for six years.
11. The CBP officers then inspected our luggage. They asked how much money we were carrying, which was $8,000. We were with the CBP officers for about an hour.
12. Afterwards, the CBP officers directed us to enter an office, where they informed us they had received an Executive Order banning travelers from seven countries, including Syria. I asked to see a copy of the Executive Order. The CBP officer pulled out his mobile phone and navigated to an online news site, which I believe was CNN. He then pulled up an article explaining the Executive Order and showed it to me.
13. I asked to see an actual copy of the order. The CBP officer left, and returned a little while later with a printed piece of paper that did not have an official header or footer. The paper had two paragraphs printed on it: the first paragraph discussed B-1 visas, and listed the seven countries that were covered; the second paragraph discussed B-2 visas, and listed only six countries- Syria was not one of them. I pointed out that Syria was not on the second list, and the CBP officers laughed and told me it was a ·'typo."
14. I asked the CBP officer why they did not inform the airlines of this Executive Order before we boarded. The CBP officer replied that they had received the order Friday evening (January 27, 2017) while our airplane was in the air.
15. The CBP officer then gave us two options. The first option was to sign papers saying we wanted to withdraw our application for admission to enter the United States. We were told that CBP would cancel our visas, and we would be returned to Saudi Arabia. If we refused to sign the papers, the CBP officer said we would be "detained." When I asked what he meant by "detained," the CBP officer told me it meant we would be put in jail, and would be there for a longer time. The officer also told us we would then be deported later and also be prevented from entering the United States again for five years. I felt scared because of the second option. I asked him ifl could contact a lawyer, and he told me I could not because I was not an American citizen.
16. My wife and I thought about the threat of the second option, and we chose to sign the papers given to us. We did not think we had a choice. This occurred around 3:00 or 3:30
PM.
17. After we signed the papers, the CBP officers seized our mobile phones. We were prevented from contacting anybody directly, from watching what was happening around us, and from reading the news. I asked to contact my father-in-law to let him know we were returning to Saudi Arabia, but the CBP officers told me I was not allowed to contact anyone. However, one of the CBP officers offered to call him for us. The officer went
3

Case 1:17-cv-00480-CBA Document 53-6 Filed 02/07/17 Page 4 of 9 PageID #: 715
into another room to make the call, and returned several minutes later to inform us he bad done so.
18. My wife and two daughters were very upset because of the decision to ban us from entering the United States, and because the CBP officers were detaining us.
19. After waiting in the hall, around 4:00 PM, they took us to a big room where they were detaining families. In that room we saw families sleeping on the floor. I asked to use the restroom, which was behind a locked door connected to the main room. The CBP officer opened the bathroom door for me and locked the door after me. My daughter H.S. cried.
20. After about twenty minutes of waiting in the detention room, five or so CBP guards entered the room with a tall man. They stood in a circle around him, and began putting handcuffs on him. While they were putting on the handcuffs, two officers had their hands on their guns. My wife and my daughters noticed the guns and became very scared. My wife began hugging our children. I asked a CBP officer why they were doing that to the man. He answered, "Don't worry about it, your situation is totally different from his. "
21. At approximately 5:00 PM, several CBP officers escorted us via shuttle to our gate. Two officers were in front of us and two officers were behind us on the shuttle as we traveled through the airport. The CBP guards waited with us at the gate for about 35 minutes. We were very upset and depressed.
22. We were then put on Saudi Airlines flight number SV38, which departed Dulles International Airport at 6:00 PM for Riyadh Airport (RUH) in Saudi Arabia.
23. When we returned to Saudi Arabia, we contacted my father-in-law. He said he bad spoken with the CBP officer, who told him that our family would be returned to Saudi Arabia because we had incomplete documents. I knew this was not true.
24. Since we have returned, my two daughters have been very agitated. They are nervous and upset. My daughters keep saying to me: "You promised to take us to see the Frozen characters, when we will go?"
25. Exhibit A is a true and accurate copy of the Withdrawal of Application for Admission/Consular Notification form, signed by CBP Officer John Desanta, which states that pursuant to the Executive Order, my visa application was withdrawn and my visa was canceled.
26. Exhibit Bis a true and accurate copy ofH.S. 's visa, which states her visa was ·'Revoked under section 221 (f) of the INA. Cancelled without prejudice."
4

Case 1:17-cv-00480-CBA Document 53-6 Filed 02/07/17 Page 5 of 9 PageID #: 716 Executed this 5th day of February, 2017, at Riyadh, Saudi Arabia.
Ramez Snober
5

Case 1:17-cv-00480-CBA Document 53-6 Filed 02/07/17 Page 6 of 9 PageID #: 717
EXHIBIT A

- Case 1:17-cv-00480-CBA Document 53-6 Filed 02/07/17 Page 7 of 9 PageID #: 718

Subject m : • • • • •

Bvent No: WAS17010003 03

U.S. Otputment of Homeland Stcu rlty
Withdrawal of Application for Admission/Consular Notification

Bas is for Action(check all that apply)

SIOMA Bvent: 9797205

File No.

Date: Ol /2 8/2 017

II

Application for Admission Withdrawn

II

Visa/BCC Canceled

o

VWPP Refusal

O Ordered removed (inadmissible) by Immigration Judge -Section 23S(bX2)(order attached)

o

Ordered removed (inadmissible) by DHS - Section 23S(b)(I )(order attached)

o

Waiver revoked (212)(d)(3) (order attached)

o

Departure required (8 CFR 240.25) (Forn\ I-213 attached)

Notice to: American Consul anADB, SAUDI AIWIXA
(location)

From:

C!Wn'ILLY. VII OS 20166
(Location)

·-·· Name (FAMILY, Given, Middle)
SNOBBa.
fA~hip
Comgtete foreien ..:!dress (Mailing AddtCSS
_llY&DH 8Am>T Arnn -
Complete U.S. address

C~fbinh

D

8, SYRIA

Date of birth 08/22/1980

SAaiurl~A~r~ilaonfl'.IlvrlaJnee Corp. , rlt#1 37
Visa number, type
82

Port of arrival
llASHINGTON, DC
of Date. olacc visa issuance
01/09/2017, RIYADH, SAUDI AJtAllI A

Date ofarrival 01/28/2017 0957 Social Security Number
Hone

Reasons (Include all pertinent facts conocming denial ofapplication for admission. including use of altcm!, counterfeit or fraudulent documents):

Executive Order

JOHN Dl!:SANTA

CBP Off icer

Name and Title ofOfficer (Print)

C~tillllf_a oranach separatesbcct as needed

1ru~ f

Signature of Officer

Form 1-275 (Rev. 08/01/07)

Case 1:17-cv-00480-CBA Document 53-6 Filed 02/07/17 Page 8 of 9 PageID #: 719
EXHIBIT B

Case 1:17-cv-00480-CBA Document 53-6 Filed 02/07/17 Page 9 of 9 PageID #: 720

Issuing Post Name

Given Name
H-

F
l1ateData
09JAN2017

YID~e/Claas
~~~11111111...: 1182

*

CaCsaes1e:117:1-c7v--c0v0-0408408-C8-BCABADoDcoucmuemnet n5t38-7 FFileiledd0012/3/017/1/177 PPaaggee11oof f66PPaaggeeIDID##: :67121

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
SUHA AMIN ABDULLAH ABUSHAMMA,
Petitioner,
-against-
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and JAMES T. MADDEN, New York Field Director, CBP,
Respondents.

No. 1:17-cv-00488-CBA

DECLARATION OF SUHA AMIN ABDULLAH ABUSHAMMA
I, Suha Amin Abdullah Abushamma, declare, pursuant to 28 U.S.C. § 1746 and subject to penalty of perjury, that that following is true and correct: 1. My name is Suha Amin Abdullah Abushamma, and I am a citizen of Sudan. I was born in
Saudi Arabia, where my family now resides. Since July of last year, I have been employed by the Cleveland Clinic as a doctor of internal medicine. I am currently in a three-year internal medicine residency program at the Cleveland Clinic. I am a holder of a valid H-1B visa that I received on April 28, 2016 for the purpose of treating patients as a doctor of internal medicine at the Cleveland Clinic. I live in Cleveland, Ohio, where the Cleveland Clinic is located. 2. On the morning of January 28, 2017, I applied for admission to the United States at the John F. Kennedy Airport (“JFK”), in Queens, New York, following a short trip abroad to visit my family in Saudi Arabia I applied for admission at JFK as a nonimmigrant on the basis of my

CaCsaes1e:117:1-c7v--c0v0-0408408-C8-BCABADoDcoucmuemnet n5t38-7 FFileiledd0012/3/017/1/177 PPaaggee22oof f66PPaaggeeIDID##: :67222
valid H-1B visa, with which I am permitted to travel abroad. As explained in more detail below, I was denied entry and instead was sent back to Saudi Arabia. 3. I have been working as a doctor at the Cleveland Clinic for the last six months. I see about ten patients each day and serve as the primary care physician for a number of patients, who depend on me to prescribe and refill their medications, check their labs, and speak with them about their medical conditions and discuss next steps. I also conduct medical research on inflammatory bowel disease, and perform other duties as part of my residency program. 4. I have lived in Cleveland, Ohio since last summer. My fiancé is a legal permanent resident working as a doctor of internal medicine at Detroit Medical Center in Michigan. We are planning to be married in the United States this summer. 5. On January 23, 2017, I flew from Cleveland, Ohio to Jeddah, Saudi Arabia for a short visit with my family. The United States is my home. My apartment with all my things except what I packed for my vacation, my car, my job, and my fiancé all are in the United States. I packed only a few sets of clothes because I did not expect to be away long from my home in Cleveland. 6. On January 28, 2017, I took a flight from Jeddah, Saudi Arabia with a final destination of Cleveland, Ohio, where I live. 7. Upon my arrival at JFK at approximately 11 a.m., I was detained by U.S. Customs and Border Protection (“CBP”) agents at JFK. I was not permitted to board my connecting flight to Cleveland. CBP agents confiscated my passport and threatened to take away my phone. I was not told why my passport was being held and I received no information about how long I would be detained.
2

CaCsaes1e:117:1-c7v--c0v0-0408408-C8-BCABADoDcoucmuemnet n5t38-7 FFileiledd0012/3/017/1/177 PPaaggee33oof f66PPaaggeeIDID##: :67323
8. I was detained for at least six hours before I was told by a female CBP agent that I was being refused entry. She spoke to me briefly and told me that I was being detained because of the executive order that the President had signed and because I was a visa holder from Sudan. She gave me no further information about why I was not allowed to return home to Cleveland. I asked to speak to my immigration attorney, David Leopold. She told me no and she then left and never returned.
9. As set forth below, I was never permitted to speak on the phone with my lawyers while in CBP custody despite my initial and subsequent requests to do so. I was able to exchange a few text messages with Mr. Leopold, but when I asked to call him, my requests were refused until after, as set forth below, I agreed to sign certain forms.
10. During these texts, Mr. Leopold advised me that lawyers were working on a petition on my behalf to file with the Court so that I could return home to my job at the Cleveland Clinic.
11. After the female CBP agent who denied my initial request to speak with my lawyer left me, I again waited without being told anything. Ultimately, a new CBP agent came to speak with me. His identification tag read “T. Lam” and he told me I would not be permitted to enter the United States. I again asked to speak to my immigration attorney by phone but Agent Lam refused.
12. During this time, Agent Lam’s supervisor was nearby. My attorney, Mr. Leopold, told me by text message that he would speak to CBP agents directly to explain the situation. I asked Agent Lam and his supervisor to speak with Mr. Leopold so that Mr. Leopold could confirm that there were attorneys working on my behalf but both Agent Lam and his supervisor refused to speak with him.
3

CaCsaes1e:117:1-c7v--c0v0-0408408-C8-BCABADoDcoucmuemnet n5t38-7 FFileiledd0012/3/017/1/177 PPaaggee44oof f66PPaaggeeIDID##: :67424
13. Agent Lam told me that the only way I was going to leave detention was if I signed a form to return to Saudi Arabia—the country I had flown in from. He showed me a document and told me that I should sign it. I was not allowed to call my lawyer or ask questions about what was in the document. It was also not feasible to discuss the form in detail with Mr. Leopold through text messages. I was being rushed to sign.
14. I was told by Agent Lam that if I did not sign, I would be forcibly removed and then banned from re-entry for five years. This terrified me because I want to finish my residency at the Cleveland Clinic, and because I was afraid of being removed by force.
15. I again told Agent Lam and his supervisor that there were attorneys who were working on my behalf. I repeatedly begged Agent Lam and his supervisor to give me more time. Agent Lam’s supervisor then told me that an order that would allow me to stay in the United States would need to come from the Supreme Court, and that this would not happen. They told me that my lawyers could not do anything to help me in my situation and so I should just sign the form. I now know that what they told me was not true.
16. Agent Lam told me that there was a flight back to Saudi Arabia that was leaving at 8:30 p.m. He said that if I did not sign the form right away, it would mean that I had chosen to be forcibly removed from the United States, and that I would be forced onto the plane anyway, but would then be banned from the United States for five years.
17. I was so scared. Without being allowed to speak to my attorney on the phone despite my repeated requests, and because of all the negative consequences that Agent Lam had told me would occur if I did not sign the form, and feeling like I had no choice, I signed the form.
18. Had I known that what the CBP agents told me was not true, or had I been given more time to consider my options, or been allowed to call my lawyer who could better explain what
4

CaCsaes1e:117:1-c7v--c0v0-0408408-C8-BCABADoDcoucmuemnet n5t38-7 FFileiledd0012/3/017/1/177 PPaaggee55oof f66PPaaggeeIDID##: :67525
was happening (which could not be adequately conveyed by text message), I would not have signed the form I was made to sign. 19. At that point, Agent Lam stamped my visa with the words “Cancelled – NYC.” Instead of giving me back my passport or a copy of the form that I was made to sign, Agent Lam gave these documents and my boarding pass to a flight attendant on the flight back to Saudi Arabia. I was told I would not be allowed to have any of my documents back until I had landed in Saudi Arabia. 20. I was detained for a total of nearly ten hours at the airport. During this ordeal, I was not given anything to eat and CBP agents refused to allow me to have my passport or to make any phone calls. Only once I signed the form was I offered food. After I signed the form, I asked to call my attorney but I was told by Agent Lam that it would be pointless to use my one phone call to call my lawyer since he would be unable to help me. I was told I should call a family member or friend and tell them I was going back to Saudi Arabia. 21. After my phone call, I was finger printed and then made to sign another form by CBP. The second form was not explained to me and I still do not know what it was that I signed. I was never given a copy of that second form. 22. I was then escorted onto the airplane by two CBP agents. One stood in front of me and the other stood behind. It felt like they were trying to make sure I didn’t escape as though I was criminal in custody. 23. The plane pulled away from the gate at JFK at approximately 8:30 p.m. We remained on the ground at JFK for around another 25 minutes. We finally took off shortly before 9 p.m. We landed in Saudi Arabia at approximately 4 p.m. local time (8 a.m. EST), January 29, 2017.
5

CaCsaes1e:117:1-c7v--c0v0-0408408-C8-BCABADoDcoucmuemnet n5t38-7 FFileiledd0012/3/017/1/177 PPaaggee66oof f66PPaaggeeIDID##: :67626

24. Later, after I was finally given back my passport and that first form that CBP gave to the flight attendant, I saw that the form, labeled "Notice To Detain, Remove, or Present Alien", states that the reason for my removal is that I was an "Inadmissible Alien". But when I arrived in the United States at JFK I held a valid H-lB visa.
25. The notice also states that I was born in Sudan, which is incorrect. I was born in Saudi Arabia, which is what I told Agent Lam when he asked me where I was born, but when he filled out the notice he put Sudan.
26. I am currently in Saudi Arabia anxiously awaiting an opportunity to return to the United States as soon as possible to resume my life, including to continue my residency and treating my patients at the Cleveland Clinic.
27. Pursuant to 28 U.S. C. § 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my information and belief.
Executed this 31st day of January, 2017, at Yanbu, Saudi Arabia.

uh� S

Abushamma

6

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 1 of 16 PageID #: 727

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI,
on behalf of themselves and others similarly situated,
Petitioners, v. DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and JAMES T. MADDEN, New York Field Director, CBP.

Case No. 1:17-cv-00480 Date: January 30, 2017

Respondents.

DECLARATION OF HIND MOHAMED HASSAN AHMED ELBASHIR I, Hind Mohamed Hassan Ahmed Elbashir, declare, pursuant to 28 U.S.C. § 1746 and subject to penalty of perjury, that that following is true and correct: INTRODUCTION 1. My name is Hind Mohamed Hassan Ahmed Elbashir. I am a citizen of Sudan. I am a holder of a
valid B2 visa, which I was issued on January 11, 2017. I am attaching a photo of my visa to this Declaration as Exhibit A. 2. On the morning of January 28, 2017, I applied for admission to the United States at the Orlando International Airport (“MCO”) in Orlando, Florida. I applied for admission at MCO as a nonimmigrant on the basis of my valid B2 visa, with which I am permitted to travel abroad. As explained in more detail below, I was denied entry and instead was sent back to Sudan. 3. I was born on May 20, 1985 in the United Arab Emirates (UAE). In 2002, I moved from the UAE to Sudan. I currently work for the Sudatel Telecommunications Group in Sudan, which

1

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 2 of 16 PageID #: 728 involves frequent travel to Mauritania. I live in Khartoum, the capital of Sudan, with my parents, my brother, and my sister.
4. Two years ago, my sister moved to U.S. She now lives with her husband and three children in West Palm Beach, Florida. One of her children has severe autism. Her third child was born on February 1, 2017.
5. The purpose of my visit to the U.S. was to stay with my sister for a month to help care for her children, particularly her special needs child. I also wanted to be with my sister in the hospital when she gave birth to her newborn. I planned to take shifts with my sister’s husband to ensure that there was always someone with my sister in the hospital.
6. My sister and her husband have no support system in the U.S. My sister’s husband cannot take paternity leave, and he works long hours and travels frequently. My sister needed support, and I was so excited to care for her and her children.
7. My sister’s son with autism requires intensive care. He used to go to a school for students with special needs, but my sister was unhappy with the schooling he received there and decided to homeschool him. My plan was to assume responsibility for his care when I arrived in the U.S. while my sister attended to the newborn baby.
8. I had never been to the U.S. before this. I planned for a long time in advance to be able to come to the U.S. and to ensure I would come in time for the birth of my sister’s baby. I made arrangements with the U.S. Embassy in Khartoum to obtain a B2 visa. I had to cancel a work trip to Mauritania so that I could stay in Khartoum for the month of January to go to the only available embassy appointment. I could have made more money if I had not cancelled the trip to Mauritania, but I was happy to make these sacrifices to see my sister and be part of this milestone in her life. I wanted to be there for her and support her.
2

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 3 of 16 PageID #: 729 9. At 8 PM on Friday, January 27, 2017, I embarked on a flight from Sudan with a final destination
of Orlando, Florida and a layover in UAE. The flight number was EK 734. I am attaching a photo of my flight itinerary to this Declaration as Exhibit B. ARRIVAL AT ORLANDO AIPRORT (MCO) 10. I arrived at MCO on the morning of Saturday, January 28, 2017. 11. Upon my arrival at MCO, I had my first passport check with everyone else from the flight. Then, the U.S. Customs and Border Protection (“CBP”) took me and a group of other passengers from my flight to a waiting room to conduct a secondary check. The other passengers in the group included two Iranian companions, a Syrian family of four, a Sudanese family of three, and a Sudanese man going to the U.S. for a conference. 12. We were all taken to a waiting room, and the officers took away our passports. The officers also told us that were not allowed to use our cellphones. I only had my carry-on bag with me, and not the rest of my luggage. I saw passengers from many different nationalities go in and out of the waiting room, but the other passengers from the group and I stayed in the room for six hours. During this time, nobody explained to us what was going on. Since I kept seeing people enter and leave the room, I was hopeful that if we waited patiently, we would eventually get permission to leave. The officers did not give us any information about how long we would be waiting or why we were not being processed as quickly as people from other nationalities. 13. While waiting, I had an extremely painful headache. I asked the officers for any kind of medicine to reduce the pain of my headache three times, but the officers refused to provide me with any medication. 14. In the group of passengers detained from my flight, we all spoke English except for an Iranian girl. Her companion was able to translate for her. There were no official translators in sight. 15. I did not know what was happening throughout those six hours. Since we were not allowed to use our cellphones, I could not call my family to tell them where I was.
3

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 4 of 16 PageID #: 730 16. Finally, after six hours of waiting, I was informed that my visa would be revoked and that I
would not be allowed in the U.S. that day. I asked the officers if this was their final decision, regardless of my individual circumstances, and they said yes. They explained that I had two options: I could either leave voluntarily and depart on the next flight, or the officers would force me to leave. I asked what the implications of each option were, and the officer said that if I were forced to leave, I would be banned from the U.S. for five years. However, if I left voluntarily on the next flight, there would be no further consequences and I would be able to apply again and be granted access to enter the U.S. 17. I was not able to talk to a lawyer. I asked if I could talk to someone that could explain the law or tell me my rights. They told me they could not provide that kind of information. 18. When the officers told me my options, I was totally shocked and in disbelief. I asked if the officers had a written policy outlining these options and their legal implications, and the officers told me they would provide me with the written policy later. I never received anything in writing explaining the situation. They also told me that the immigration office would explain to my why my visa was being revoked, but nobody ever came to talk to me to explain why my visa was revoked. I asked if I could contact my family and tell them where I was, and they said no. They told me that if I provided the officer with a phone number, the officer would call the number to explain where I was. I gave them the number for my sister’s husband, who was supposed to pick me up from the airport. Finally, I asked the officers for some time to absorb the shocking news. 19. After a couple of minutes, they came back and asked me what my decision was. I told them that between those two options, I would take the next flight out because they had told me I would be able to enter later, whereas if I chose the second option of leaving by force I would not be able to enter the U.S. for five years. 20. After I spoke to the officers, they wrote something on my visa, but I was unable to read what they were writing. They also took my fingerprints and asked me to sign a document with my
4

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 5 of 16 PageID #: 731 photograph and fingerprints. I asked them for a copy of the document I signed. The officers told me I would receive a copy when I received my passport back, but I never received a copy of the document.
21. I could not believe that the officers would not give me an individualized determination because of the special circumstances that my family was facing. I wanted someone to look at my case and hear from me. But the officers told me there was nothing that could be done.
22. I had all of my papers in order and a valid visa that I had worked so hard to get. I had changed my work plans and put my life on hold to come to the U.S. to support my sister. I felt overwhelmed and had no clue what I should do.
23. After speaking to the officers, I waited in the same room for another 4 hours before boarding the next flight. I spoke to the other passengers who were detained from my flight; they were also shocked and in disbelief that we were all being denied entry into the U.S.
24. In total, I was in that waiting room for around 10 hours, along with the other passengers from my flight. I was aware that 10 hours had passed because I had a watch and there was a clock in the room.
RETURN FLIGHT TO SUDAN 25. The other passengers who were detained from my flight and I were all given boarding passes on
the same return flight. This was a Lufthansa flight that stopped in Frankfurt, Germany; Dubai, UAE; and Khartoum, Sudan. My flight number was LH 465. I am attaching a picture of my ticket as Exhibit C. 26. Officers walked us from the waiting room to the gate for our return flight. 27. As we were on our way to board the flight, the officers returned my cellphone. They instructed me to keep my phone turned off until I boarded the plane. I still did not have my passport. 28. After I boarded the flight, I waited on the plane for about an hour before it took off. We boarded the plane at around 8 PM, and the plane took off at 9:10 PM. I later confirmed that the flight
5

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 6 of 16 PageID #: 732 departed at 9:10 PM by checking an online flight tracker website. A true and correct screenshot of the website is attached as Exhibit D.
29. Although I had my phone on the flight, I did not have service to be able to contact anyone. 30. When the plane landed in Frankfurt, the Syrian family from my group told me that they learned
that if we all had just waited in the airport and held on to our visas, we would have eventually been allowed to enter the U.S. I felt so bad when I learned that I could have been able to enter the U.S. to see my sister. The Syrian mother in the family was crying on and off from the time we were in the Orlando airport until we arrived in the UAE. As far as I know, her and her family later left to go to Saudi Arabia. 31. When we arrived in the UAE, an officer finally returned my passport. I saw for the first time that the officer in the U.S. had written on my passport: “REVOKED PER DOS.” 32. Finally, I flew from the UAE to Khartoum, Sudan. FAMILY REACTIONS TO MY REMOVAL AND AFTERMATH 33. For the entire day of January 28th, my sister and her husband had no idea where I was or what happened to me. Her husband had planned to pick me up at the airport and drive me to his house, but I was not able to communicate with him to let him know that I had arrived. Her husband could only guess about my whereabouts by watching the news. 34. My sister later told me she had felt extremely worried and stressed, and experienced a rapid heart rate and a severe headache. 35. I later learned that an officer at the airport called my brother-in-law at the number I gave the officers. After my flight had already departed, the officer told my brother-in-law that I was on my way to Sudan and that the officers could not let me in because of the Executive Order. They apologized to my brother-in-law, and said something about how their hands were tied. 36. I was not able to use my cellphone, due to a lack of Internet service, until I was in Frankfurt. As soon as I had Internet access on my phone, I wrote a message through the WhatsApp messaging
6

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 7 of 16 PageID #: 733 service to my family to explain what had happened. The message was sent to my parents, my siblings in Sudan, and my sister in the U.S. I was not able to make phone calls on my cellphone until I arrived in Sudan.
37. I later learned that, until my parents heard from me, they were extremely worried and did not sleep for two days. They are elderly (my father is 70 years old and my mother is 60 years old), and they have diabetes and high blood pressure. I believe the stress of the situation adversely affected their health.
38. When I arrived in Sudan, the first person I spoke to on the phone was my sister. I was crying, but I tried to hold myself together because I wanted to be strong for her.
39. My sister was devastated when she found out that I would not be able to enter the United States. Her water broke earlier than expected; she gave birth on February 1, 2017.
40. It was so painful to hear that my sister had given birth just days after I would have arrived in the U.S. It is difficult to think of my sister going through all of this alone, without me being able to be with her in person. I also feel worried about my sister and her family because they have no friends or family in the U.S. to help them.
41. My sister is now taking her son back to the school for special needs students, which she is unhappy about. However, my sister is not able to take care of her autistic son because she has to care for her newborn baby. My sister’s husband has stopped going into work. He is trying to work from home, but his business does not have paternity leave.
42. Since arriving in Sudan, I have felt extremely depressed. From the time the officers told me that I had to return to Sudan or face a five-year ban, I felt disrespected and discriminated against. I am still shocked about what happened. I have not left my bed since I arrived home and I have been unable to leave the house. I do not want to return to work because I still have hope that I can be granted permission to go to the U.S. and be with my sister.
7

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 8 of 16 PageID #: 734

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 9 of 16 PageID #: 735
EXHIBIT A

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 10 of 16 PageID #: 736

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 11 of 16 PageID #: 737
EXHIBIT B

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 12 of 16 PageID #: 738

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 13 of 16 PageID #: 739
EXHIBIT C

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 14 of 16 PageID #: 740

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 15 of 16 PageID #: 741
EXHIBIT D

Case 1:17-cv-00480-CBA Document 53-8 Filed 02/07/17 Page 16 of 16 PageID #: 742

Case 1:17-cv-00480-CBA Document 53-9 Filed 02/07/17 Page 1 of 4 PageID #: 743

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Rashid Ahmed Gibril Ali,

on behalf of themselves and others similarly situated,
Petitioners,
v.

Case No. 1:17-cv-00480

DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and JAMES T. MADDEN, New York Field Director, CBP.

Respondents.

I, Rashid Ahmed Gibril Ali, declare, pursuant to 28 U.S.C. § 1746 and subject to

penalty of perjury, that that following is true and correct:

1. My name is Rashid Ahmed Gibril Ali, and I am a citizen of Sudan. I am working

in Saudi Arabia for a medical simulation company named I-Man Healthcare. I

applied for admission to the United States at the Orlando International Airport, in

Orlando, Florida on January 28, 2017. I applied for admission as a nonimmigrant

on the basis of my B-1/B-2 visa, which I received on January 4, 2017.

2. On January 28, 2017, I embarked on a flight from Dubai, United Arab Emirates

with a final destination of Orlando, Florida. For the first leg of my flight, I had

embarked on a flight from Riyadh, Saudi Arabia to Dubai, United Arab Emirates

on January 27, 2017. I arrived at Orlando International Airport at around

10:00AM the morning of January 28, 2017.

Case 1:17-cv-00480-CBA Document 53-9 Filed 02/07/17 Page 2 of 4 PageID #: 744
3. I traveled to the United States to attend a medical education conference in Orlando for four days. The conference, entitled “Patients: The Heart of Simulation,” was held by the Society for Simulation in Healthcare (SSH) at the Hyatt Regency Orlando Hotel, at 9801 International Drive, Orlando, Florida. I am a member of SSH, an organization for medical simulation. As a member of this organization, I came there to attend the conference, attend some workshops, and meet other companies as a representative of my company. The pre-conference workshops would start on January 28, 2017, the conference itself would start on the January 30, 2017, and the conference would end on February 2, 2017. I had a flight back on February 5, 2017.
4. Upon my arrival at the Orlando International Airport, I went through passport control, and the United States officers took me to another room and told me to wait there. They took other passengers who were with me as well. I remember there was a family from Sudan, with a wife, husband, and a child; a Syrian family, including a wife, husband, and two daughters; and two individuals from Iran, a daughter and father. The officers did not tell us anything about how long we would be detained or why we were being detained. We were not allowed to use our cell phones.
5. After about five or more hours, United States officers then came and told us that our visas had been revoked. They were uniformed and may have been with U.S. Customs and Border Protection (CBP), but I could not tell the difference between CBP and other United States government officers. They gave us two choices: we

Case 1:17-cv-00480-CBA Document 53-9 Filed 02/07/17 Page 3 of 4 PageID #: 745
could either volunteer to leave or refuse. If we refused, we would be deported from the United States. 6. I asked the officers why my visa was revoked and they did not answer. They were very clear that they were only giving us only two choices, and so I did not even think that I could see a lawyer. In both choices offered, the result was going back, so I accepted the fact that I could not enter the United States. They made me sign a piece of paper that acknowledged that my visa was cancelled. 7. After I signed the papers, the officers asked us many personal questions, including where we are working, our home address, and information about our family. They had us sign that the information we gave was correct, and they then took our fingerprints. We then waited for another few hours. 8. In total we were detained for about ten or so hours at the airport. 9. CPB then put us on the flight to Frankfurt. They initially told me that I would not have to pay for the flight, but it turns out that they were using my return plane ticket for which I had already paid. CBP and the airlines refused to give me back my passport. They only returned my passport after the plane leaving the United States touched down. I received my passport in Dubai Airport. 10. We boarded the flight to Frankfurt airplane at about 8:00PM on January 28. My boarding pass says that boarding started at 7:50PM. My flight was LH0465 on Lufthansa Airlines to Frankfurt, Germany. The flight did not take off for a while, as it was a little bit delayed. I do not remember the exact time that the flight left, but it was after 8:30pm.

Case 1:17-cv-00480-CBA Document 53-9 Filed 02/07/17 Page 4 of 4 PageID #: 746 11. From Frankfurt, Germany I went to Dubai, and then I returned to Riyadh. Executed this sixth day of February, 2017, at Riyadh, Saudi Arabia.
_________________________ Rashid Ahmed Gibril Ali

Case 1:17-cv-00480-CBA Document 53-10 Filed 02/07/17 Page 1 of 6 PageID #: 747

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI,

on behalf of themselves and others similarly situated,
Petitioners,

Case No. 1:17-cv-00480

v.

DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and JAMES T. MADDEN, New York Field Director, CBP.

Respondents.

I, Yahya Aburomman, declare, under penalty of perjury pursuant to 28 U.S.C § 1746, that the following is true and correct:

1. My name is Yahya Aburomman, and I am a twenty-three-year-old citizen of Jordan. My father is originally from Jordan and my mother is originally from Syria. I was born in Syria while visiting my mother’s family there, but I have lived my entire life in Jordan. I am ineligible, under Syrian law, to become a Syrian citizen or receive a Syrian passport.
2. I came to the United States in order to visit family that live there. My brother Abed Aburomman is a U.S. citizen and studies chemical engineering at the Illinois Institute of Technology. Two of my uncles also live in Illinois and my aunt lives in Maryland. They are all U.S. citizens. My brother Omar also lives in the United States as well, but I do not know exactly where.

Case 1:17-cv-00480-CBA Document 53-10 Filed 02/07/17 Page 2 of 6 PageID #: 748
3. At the end of January 2017, I graduated from the University of Jordan where I majored in English and Spanish. I will begin a master’s degree in English and Spanish at the University of Jordan in May.
4. At on or about 12:40 p.m. central time on Sunday, January 29, 2017, I applied for admission to the United States at the O’Hare International Airport in Chicago, Illinois. I applied on the basis of a B-1/B-2 visa. I was then denied entry, held and questioned, locked up in a cell, and returned to Jordan.
5. After waiting in line, I reached the desk where a Customs and Border Protection (“CBP”) officer inspected my passport. He noticed that my Jordanian passport stated that I was born in Syria. He asked about that, and I told him I was born in Syria while my parents were visiting there but I am Jordanian. He knocked on the glass next to him and said to another officer, “This man was born in Syria. We might have trouble with this.” The other officer replied that he saw nothing wrong with that and that I should be treated as a Jordanian. However, I was escorted over to an additional officer to show him my passport. The officer asked me to sit and wait while he stepped away. When the officer returned, he said, “Being born in Syria will affect your entry to the United States.” I told the officer I was only born in Syria and I am a native Jordanian.
6. The officer was not convinced and asked to search my belongings. He took my phone and asked me for my password. I gave it to him. He walked away. I assume he went through all my emails, messages, Facebook conversations, SMS texts, and private images on my cell phone because he referenced some things later that he would not know if he had not done this.
7. Then I was taken to another area in the airport where I was questioned for about 15 minutes. CBP officers asked about my family members in the United States. I told them I have two brothers here, Abed Al Elah and Omar.

Case 1:17-cv-00480-CBA Document 53-10 Filed 02/07/17 Page 3 of 6 PageID #: 749
8. An officer said, “Abed came to the United States, overstayed illegally, then got married and became a U.S. citizen, right?” Then he added, “And Omar is also an illegal in the Untied States?” I was scared. I said yes.
9. He kept asking about my brother Omar. He wanted to know where he lived. I told him I did not know where he was. The officer replied, “Do you think that I believe you? I don’t.” I insisted I was telling the truth.
10. The officer said Abed and Omar’s experiences “will affect your entry to the United States because your brothers overstayed illegally and you might do the same.” I asked why I had to be responsible for someone else’s decisions, and Officer Davis said, “because they are family.”
11. I was then escorted to a waiting room full of people, where I was questioned by CBP Officer Davis and his colleagues for six hours and subjected to a secondary inspection. CBP officers searched my belongings, including the contents of my suitcases, multiple times.
12. Officer Davis asked me my reasons for visiting the United States, and I said that I had just graduated from the University of Jordan and my father, a graduate of the University of Illinois, Chicago, encouraged me to spend a few weeks with my relatives in the United States.
13. Officer Davis asked me why I had corresponded with aviation academies around the world. I explained to him that I was interested in scholarship programs for international students.
14. Officer Davis told me he did not believe I was not planning to stay here permanently. He asked me the same questions about my brothers, and I answered them the same way.
15. Officer Davis also said the fact that I was born in Syria would affect my entry to the United States.
16. I was asked to carry my suitcases to another room so CBP officers could search them again. After the search, they asked me how much money I had. I told them $8,000. Officer Davis said that was too much for a vacation. I reiterated that this was only a visit and I just wanted to get

Case 1:17-cv-00480-CBA Document 53-10 Filed 02/07/17 Page 4 of 6 PageID #: 750
presents for my relatives in the United States and in Jordan. I also told him my brother Abed told me to bring extra money to help him arrange his wedding. Officer Davis asked me when the wedding would be. I told him maybe next month. 17. Officer Davis then stepped out to ask my brother Abed about his marriage arrangements. Abed was waiting for me at arrivals. When he came back, he accused me of not telling him the truth because Abed said the wedding is going to be in August, even though Abed confirmed my story about bringing extra money for the arrangements. I told him I was honest about my understanding of the wedding date. It is up to the groom to decide when he wants to get married, and he is entitled to change his mind. 18. After this, I waited again for a while. Then Officer Davis returned and told me he intended to ask me a number of questions, and my answers should only be either “Yes” or “No.” He said my answers to these questions would be put into a sworn statement. The questions were about my full name, my place of birth, the reasons I was born in Syria, my nationality, the place of issuance for my passport, my reason for coming to America, the amount of money in my possession, the names of my uncles in the United States, and their jobs in America. Then I was told by Officer Davis to sign five documents. I do not know what all of these documents are, but one of the documents was a sworn statement. He also informed me that he would call the Jordanian Embassy to inform them of my status, telling me that he was about to cancel my visa and put me on a plane to go back to Jordan. 19. I asked him to allow me to call the Jordanian Consulate because I did not know what I was being asked to sign. He insisted that I have to sign the papers first; then I could call. Another officer sarcastically replied, “Yeah go ahead and call them, as if they’re going to answer.” Then he said, “Or you may send them a Snapchat.” Then he and Officer Davis started to laugh. Then

Case 1:17-cv-00480-CBA Document 53-10 Filed 02/07/17 Page 5 of 6 PageID #: 751
Officer Davis said that if I did not sign the sworn statement and other documents, that I would be banned “from entering the United States for the rest of [my] life.” 20. I signed the documents because I feared that if I did not, I would never be able to visit my family in the United States again and would miss the chance to come back for my brother’s wedding. While I was signing, Officer Davis started dialing the Consulate. When the call went through, the Consulate said there was nothing they could do for me. 21. After this, Officer Davis told me I would receive a copy of the documents I signed, but I never did. Officer Davis told me he would give me a waiver so I could apply for another visa at the American embassy in Jordan, but he did not give me that form either. After I signed the papers, CBP officers took my fingerprints and photographed me. 22. After officers inspected my suitcases for a fourth or fifth time, I was then placed in a locked cell somewhere else in the airport where I remained for almost 20 hours. 23. At some point, I asked CBP officers if I could speak to my brother Abed and they said no. I also asked the officers if I could perform my daily prayer in a clean place since the cell was not a proper place for prayer, and they refused. Later on, I asked the night shift officer, who did not know anything about my case, if I could call my uncle to inform him of the details of my flight back to Jordan. He let me call. 24. The following afternoon, at approximately 3:30 p.m. on Monday, January 30, 2017, I was placed on Lufthansa flight L431 to Frankfurt that departed after 5:00 p.m. The general boarding time was supposed to be around 4:45 p.m., but I was put on the plane early. 25. After I arrived in Frankfurt, my brother called me to tell me that an immigration attorney had tried to help me while I was in O’Hare, but CBP would not let her contact me. He told me that on Monday afternoon, an attorney sent by my family members repeatedly tried to gain access to speak to me or to obtain information about my case. After denying her requests to see me or to

Case 1:17-cv-00480-CBA Document 53-10 Filed 02/07/17 Page 6 of 6 PageID #: 752
receive information regarding me, a CBP officer asked her to write my name on a piece of paper and he would check on me. Several minutes later, the officer returned and told her that I had "already left" and would not provide further information. This occurred approximately between 3:40 p.m. and 3:50 p.m. Approximately at this time, I was taken out of my cell and placed on an airplane. I realized that the officer who placed me on the airplane had the same name as the officer who told my attorney that I had "already left." 26. I was not given copies of any of the documents I signed. 27. I was never permitted to speak to an attorney nor my brother Abed who was awaiting me. 28 . I was held in a locked cell for 20 hours merely because I was born in Syria. 29. The treatment I received at the hands of the immigration officers at the airport is entirely unAmerican and contrary to all the impressions that my father instilled in me that America was a land ofjustice, kindness, equality, and respect.
Executed this 3rd day of February, 2017, in Amman, Jordan.

Case 1:17-cv-00480-CBA Document 53-11 Filed 02/07/17 Page 1 of 3 PageID #: 753

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI,

on behalfofthemselves and others similarly situated,
Petitioners,

Case No. l: l 7-cv-00480

v.

DONALD TRUMP, President ofthe United States; U.S. DEPARTMENT OF HOMELAND SECURITY ("OHS"); U.S. CUSTOMS AND BORDER PROTECTION ("CBP"); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner ofCBP; and JAMES T. MADDEN, New York Field Director, CBP.

Respondents.

DECLARATION OF NABILA ALHAFFAR

I, Nabila Alhaffar, declare, pursuant to 28 U.S.C. § 1746 and subject to penalty ofperjury, that the following is true and correct:
I. My name is Nabila Alhaffar, and I am a citizen ofSyria. I applied for admission to the United States at the Dulles International Airport, in Dulles, Virginia, on January 28, 2017. I applied for admission as a J-2 nonimmigrant on the basis ofmy J-2 visa which I received on 12/08/2015.
2. On January 27, 2017, I embarked on a flight from Doha, Qatar with a final destination of Dulles, Virginia. I traveled to the United States because I held a valid J-2 nonimmigrant visa as the derivative spouse ofmy husband, who is a physician in J-1 visa status. I live in Virginia with my husband.

Case 1:17-cv-00480-CBA Document 53-11 Filed 02/07/17 Page 2 of 3 PageID #: 754
3. Upon my arrival at Dulles, I was detained by U.S. Customs and Border Protection ("CBP"). They told me that I was being detained because my visa was "blocked" and because I am a Syrian national.
4. The CBP officers told me that I would not be permitted to enter the United States and confiscated my cell phone, visa, copy of my marriage contract, DS2019 forms, and copy of my husband's DS2019 form which I carry with me when traveling as supporting proof for my J-2 visa.
5. One particular CBP officer told me I was going to be deported back to my home country. I explained to him that I live in the United States with my husband who was waiting for me. I asked him why my visa was being denied.
6. The officer replied: "You are not American to say that this is your home, and you cannot say 'my visa' because this visa belongs to the United States, not to you! You must go back to your country."
7. I was told to sit down, have my fingerprints taken, and sign some papers. 8. The CBP officer told me that the only way I can get a new visa again without waiting for 5
years to apply again was if I signed a form to return to the country I flew from. I was shown a document I couldn't understand because I do not read English well enough to appreciate and comprehend the legal impact of the document. I was told to sign it even without being allowed to talk to a lawyer or ask questions about what was in the document. No translator was granted to me, even though I requested one. 9. I stated I did not want to sign any papers and requested to speak with my husband, a lawyer, and a translator, before doing any such thing, and was denied all requests. 10. At that point, someone else who I assume was also a CBP officer came into the room I was in. The officer told me that I can re-apply for a new visa when I return to my country, but ifl do

Case 1:17-cv-00480-CBA Document 53-11 Filed 02/07/17 Page 3 of 3 PageID #: 755
not sign the papers, I will be prohibited from entering the country for five years. I was told I had no viable option but to give in and sign, which is what I did. 11. The next time I saw my passport was at Dubai airport and the visa with was stamped with the word "canceled." 12. I landed at Dulles at 8:01 a.m. on January 28, 2017 and was detained until I was deported at 9:55 a.m. on a flight back to Doha, Qatar. 13. At Dubai airport I was also told that I had to pay for the plane flight home otherwise I won't be given my passport. However, upon arrival to Qatar no one asked for payment. 14. I was extremely scared and emotionally devastated. I live in the United States and didn't know when I was going to see my family again, when I was going to be able to leave detention, and if I was sent back to Qatar, when I could come back to the United States to join my husband. 15. I am currently in Qatar, my visa having been cancelled, separated from my husband who is working in the United States as a physician, not knowing when I can see my husband again.
Pursuant to 28 U.S.C. § 1746, I hereby verify that I can write, read and understand English sufficient to set forth the information contained herein, and I further verify the above information is true and correct to the best ofmy information and belief. Executed this 4th day of February, 2017, at Doha, Qatar.

Dated: February 4, 2017

Nabila Alhaffi

Case 1:17-cv-00480-CBA Document 53-12 Filed 02/07/17 Page 1 of 6 PageID #: 756

l 1' 11 ro !'>TATES DISTIUC.T ('lllJK f EA~TFR'I OlSTIU('r OF :O. t:\\ \ ORK

llAMM D KHA.LID DAR\\ LI Sii •nd IIAIDER SAME~.R AllDlll KllAI CQ ALSliAWI,

llll bc1ut1f ofthc1nselve:-; und olhcrs sin1ilnrly situate(!.

l'<·lllio1u·rs.

'
1)()1'.ALD TRUt-.:tt•. Pn-..,idcn1 oflhc lJn1ted
Simes; lJ.S. DFPARTMENl ()~ llOMl· l.A"IO SEC'URITY ("DllS">: I .S. CUSTOMS AND BORDER PRO I ~Cl ION
("C'lll".>: JOI IN KELLY. SccreL"Y of DllS: KEVIN K . MCAl.El"NAN. Ac1inA Con1111is..~ioner (If (.'BP: tu1<l JANII ·S I , \IAlllll'N, New York Held Dir,..:lor, COP.

1'.o. I: I 7..:v.()().180

or l)t'.l I.AKATIO~ M Al'-A K

I, \I.mar. declare."""'"""' It• 28 l.. ~.C. § 1746 and subject 10 pcn•ll) of perjllf). thal lhc follo\\1ni:; j., lnx: and correct:

I. ~1y numc is Manar. I \VA:-. ht•rn on November 3. 1994. 111111a cilizcn of Yr111en aod '"a"
born in Saudi Arabiu, I tun 1l()I a citi?'eu .;rany other countf)', I live in Jcd(!<lh. Saudi
Aruhi~•. and all n1y lb.rnil)•li"c'i in Saudi .1\rabia. I a1u ''"cnly·l\\oO ye-ars old.

I cun pr\l\;ding this declaralittn "ith onl} my fU"St nrune \t) hruk)r m) family·s "·ish noL t1)

teJ"' h3\·t' Ol) full rutl"M; or m) phnt~roph tt:'\.-ak:d publkl}-. ~l> ftunil)

rt.•pri.sals ifit

ho:omcs publicl~ L.oo\\n th.11I1un in\ol\cd in this ca.-.c

' I am current.I) a studenl tn S.;ulJ11\rnbi:i... stud~ inw. 1hc ht\\ -1. I \V3S born and h\ e in J1.."tltl11h. Saudi i\rabia. I rutl a leg.ul r1..~i\ll11l of Saudi Arabia.

~. 0 11 Saturday, Ja.n1u1ry 28. 20 17, al 3J~l)rl),.irnalcly 3:35 1\M (( iS I). n1y I '1ilu1<I Airli11cl:i fligh1(No. EY I03) depal'le<I fn.)m 1\bu Dhabi lnternahunHI Airport to John f . Kcnoed)

Case 1:17-cv-00480-CBA Document 53-12 Filed 02/07/17 Page 2 of 6 PageID #: 757
lnternati(lnal Airport (-JFK Airport") in Ne\v York City. I received prccleamn<.-..: in Abu Dhnbi lo make it easier to pa....-; through cush..1ms \Vbcn l arrived at JFK Airport.
6. I \\lfi.') Lraveling lo the United S1a1es because I v.'rt'i chosen as a delegate to tl1e 20 17 Winter Youth 1\ssenlhly at lhe Unilcd Na.lions. which v.·as scheduled ft)r Fehroary 1-3. 2017. I \VM only tr3veling to the lJniWtl States for a fC"' days.
7. I cravclcd \Vith Ill}' 'c"eoleni pa.;;.':ip<)rl aad my one-year B-1/B-2 visitor visa. My visu \'las issued on Aug~L 2, 2016. and is valid for n1ultiple entries until July 20. 2017. A true and
Cf1rri:::cl t.:<Jpy of ID}' visa is anached to this declurulioo us Exhibit A.
K. My llighl arrived at JFK Airport at upproximotcly 9:00 /\M (HS'!) on January 28. 2017. After I landed. three h•"' <...nforccmcnt officel'$ told rJ1e (ltht!r p~~ngers and me to hold up t)ur passports. I shov.·cd tJte la\V enforcemt:nl c.1fiiccrs 01y passport. 'llley theo cold 1ne lC.l move aside. Afte-r that, I .stood und waited for the \vhole line ofde-lx.»Jrtling p(l.SS(;ngers to he procc;i;sc..'<.1 in this \\'3)'. Aside fmo1 ole, on ol<l1;r \\'l>IMD from Sudan~ 3J1 elderly rnan front Iran, an<l a young n1a0 from Iran \\'ere all de1.aine<I from my tlight.
9. ·11)e <lfliccrs then told inc and the three t)ther tlt:t<1ined travelers that V.'Chad ro follO\V I.hem. The officers had 1ny {la.'Q.por1 and held lt the entire tj1ue I v.·a~ detained. I tlid no! get nly p~pon back u11til I landed in Saudi Arahiu allcr being deported. I \\'Cllt wit11the otliccrs to a t'()()fll full (If c)ther c.1tliccrs and ut least ten otlter travelers. l·'.ven 1hougb the Sudillll:SC won1an fron1 n1y flight had a grec11 curd. she v.·as dctai11cd v.•ith us as v.•ell. l'ht:y detained her for almosL IOur hours and then let her out ofthe airp0r1.
I0. The officers left one of the Iranian men and n1e in the roon1 for ahout live hour:s. lo the n)C)1n, lhc ofiiccrs \Vould not give ll<; any infomu1lion about what \\1'3S happeniog 10 t.1$, and did not provide us \vith an}' food. Before \ve entered the room. the otliccrs took n1y carry-on bag. \\rl1ieh had all 01y i1nporu1nt belongings in it. \\'e v.·e.re not aJlo"·e<l l(l u:;t.: our nll)hilc;- phone:; or move anywhere. I had to a<;k 1.he ofli~r;s for pcnnissio11 to use a rn-uhroom. I \V".tntcd lO pra)' but I wa.-:. stared to do so. I felt like I V.'3$ beiog tr~rued liken crin1inal.
11. I tried to explain to the otliecrs that I had con\e to !he lJnih.xl Slnlcs ~s a youth delegate to the United Nations. tJtat I v.·ould (1nly be here for a fc\V da)'S, cltat I had 1"1id ft)r e\1ef)'111ing I ni;c.:dcd for this trip. and that I "'a.'l 1101 a rcl'ugc:e. lbcy refused to help n1e in any "ray. ·rhis \Va~ 1ny lin;t timt.: ever LravcliJ1g alone. and I experieo<:ett thi-. nil nlone. 1 wuld not do ;_uiything and J v.·a~ crying. I ICll very sc.1rcd about v.ihat \Vas going to happen to me;-.

Case 1:17-cv-00480-CBA Document 53-12 Filed 02/07/17 Page 3 of 6 PageID #: 758
I2. I asked in.any ti111e~ IOr a h1\vyi:r. I cxplaiot."C;I ) w~LS H1<1\v studenl and I k.nc\v I had the rig.bl 10 speak \vilh a la\V)'Cr. but the officers said. ''No, you're oot a citi7.e-n, you don·l Jia,re the righl tt) do St).'"'
13. I also asked 1nany tin1es if I could call my t'a.1.her tf> explain my silo~tion. l \\<'as only allf)v.•t:tl l<t call my lather and u1y friend . I had to call n1y friend bec.aLL~ she \Vf:IS \Wiling for n1e to arrive~ ~he could pick me up. \Ve \Vere not allov.•cd to use our pl10nes, so I Md to give the officers the numbers and tJ1ey called f'ro1n Lheir ollice telephone. Before being deported. l asked to call my fa.thcT again to tell him I was bci11g deponed a1ld that 1h!!: o lliccrs v.·cre taking inc no,v. The officers refused.. ~ying lhnt I <1lr~-ady .had (\VO phone calls, but the)' e"'entw11ly ul h.-."'"'"(.~ me to call because I i1tsisted and becau..:;e l \l/aS c;rying.
14. Afler u~ lea.st lb.rec hours of being held i.n this r<k)fl) withouL f(.l(kj or ijnyv..hc..-:rc lo rcsl. one of t!hc officers tool.. pictures ofrnt: nnd made me sign son1cthing on an electronic device. I did not understand \Vh.at J was sig.11i11g. I a..~ked l~)r un explanation. but they said I had ltO
ch<>ice hullo ~ign on lhc device, and they refused 10 exrlain ai1y~1ing. They then look my
fingerprint~ 3Jld Jlh«)tographeJ mt:. I " 'l:l:S crying as they took my photograph and asked \vhy lhey 'vcre treating n1c like a crin1il\al. I asked why lhey \Vt:rc u1king pictures ofme and they said it \Vas "11ont1ol procedure'' lhnt they filtd to foUO\V. They told inc if J pro·vided my Gngcrprints and photograph, I \vould 1101 have.prohlerr1~ applying_ IOt a DC\\' vis."!. because the go\remrtletlt could use rmy fingerprints and photograph to confirnt I had no c.:riminal history.
15. I fi.:]t VCI)' uncomfortable.with the officer~ taking rny picture und I \Vas confused about \Vha1 \\'ll.~ •t.ai1pc.::ning, bot they told me I h.."ld to do everything the)' said if I \\1aoted It) be able to apply for anod1er visa after 90 di-1y~. 1trietl f<) tHlk lo 1he officer \vho had n1y 1')3ssport aml asked him to make an cxccptio11 for Ole becau.~e I had paid f()r <VCl)'lhing on my trip and I could not con1e l')3ck lt) th.: l Jnilt:d Sl»h.':$. He asked me \Vhy I (;()u]d not go
back. and I cxpluintd 1bu1 it was hard for me to come to the United Stales. ·1·110 olliccr ~wl!:hcd. He said that after 90 days, if ~le rule; had changed. I could come back. TI>e
officer treattXI 1ny situ~ltion as if it \Vere not a big deal rhe officer!i. treated 111e terrihly. I1 \WS very hurtful to nte. E\felltually. thcy LOld m~ I v.·us bciog~nt back to Saudi Arabia.
16. The elderly nHlJl frt)m Jrun and l \verc then deported. I still \\'3S not gi\ren 111~· passport or any information aOOut \Vhat \\'a.' happeni11g, v.1here I v.•a.,-. going. or whut llig,ht I wu:; on. ·rhe flight !ell fn11n JFK A irJX>rl ~•l approxin1ately 2 or 2:30 J,M (l:S I') on January 2X, 2017. Because I had aJrcad)' been on a J4.hour Oight a11d then c.lc.::taint.'(I ror :;cvcn1J hours \Vitl\c)ul any l(HKI c1r any\..·hcre to rest. my back \V8S rcaJly huning. rhe \Vhole travel experience v.·as aln1ost t\VO da)'Slong.

Case 1:17-cv-00480-CBA Document 53-12 Filed 02/07/17 Page 4 of 6 PageID #: 759

17. Before I \\3...~ dqxmcd. the official' look my PMSrn~ nnd did 001 return it to me un11l l lt:ioded in S.audi Arabia. Whc:n lhcy gave it hack 10 me. there wa.~ a \lump on my \•isn ~y ing it \WS cancel ~ tind tb:.ll thc visu application wa;;; v-·ilhdrawn,

w 18 I rt.main in Saudi /\mhia 0()\1, _ I tm\·e~ IO lhc United s~ for a ~o atlcnJ
I '-· Asscmbl) a.'" )OUlh cklq;.o.tc-<md if! had kno"n aboul lhc !>an on ua-.lc~ from

Vernen. 1would no1 have co111c. I only launcd ahout 1h~ Exccutl\'C C)rder banning

Vcrneni travelt!rl\ itflcr J returned lo Sau.di Arabia und s1)()ke v-·ith lu\vye-r.:; in the United

Stutes who lt)ld me the- electronic docwru:nt I v-·tu forced lo sign "'a' u "'itbdra\\-al of my

''hat application for :Kin1i').'l;oo 10 the l lnitcd Swa I um saill 'b) upset about

bappcnal

l<l me.

ExccutoJ 1his 6th d.1) of February, 2017. 01 Je<ld1'h. Soudi Ambia.

f\>fanar

Case 1:17-cv-00480-CBA Document 53-12 Filed 02/07/17 Page 5 of 6 PageID #: 760
EXHIBIT A

Case 1:17-cv-00480-CBA Document 53-12 Filed 02/07/17 Page 6 of 6 PageID #: 761
Issuing Post Name
JEDDAH
Issue Date
02AUG2016

 </s> Case 1:17-cv-00480-CBA Document 50 Filed 02/06/17 Page 1 of 3 PageID #: 322

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

------------------------------------ x

:

HAMEED KHALID DARWEESH, et al.,

:

Petitioners, v.

:
: Civil Action No. : CV-17-480 :

DONALD TRUMP, President of the United States, et al.,

: : :

(Amon, J.)

Respondents.

:

:

------------------------------------ x

NOTICE OF SUPPLEMENTAL AUTHORITY
Respondents hereby give notice of legal authority relevant to this litigation: a letter issued on Friday, February 3, 2017, by Edward J. Ramotowski, the Deputy Assistant Secretary for Visa Services at the Department of State. Enclosed is a copy of the letter, which reverses the provisional revocation of all visas provisionally revoked by his previous letter (ECF No. 20).
The Department of State may make changes to the provisional revocation in the future. Respondents will promptly notify the Court if the Department of State makes any such revisions, and will provide a copy of any such document.

Case 1:17-cv-00480-CBA Document 50 Filed 02/06/17 Page 2 of 3 PageID #: 323

Dated: February 6, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director, District Court Section Office of Immigration Litigation
GISELA A. WESTWATER Assistant Director, District Court Section Office of Immigration Litigation
By: s/ Steven A. Platt STEVEN A. PLATT Trial Attorney, District Court Section Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 532-4074 Fax: (202) 305-7000 steven.a.platt@usdoj.gov
Counsel for Respondents

2

Case 1:17-cv-00480-CBA Document 50 Filed 02/06/17 Page 3 of 3 PageID #: 324 CERTIFICATE OF SERVICE
I hereby certify that on February 6, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Eastern District of New York by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
s/ Steven A. Platt STEVEN A. PLATT Trial Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section Counsel for Respondents
3

Case 1:17-cv-00480-CBA Document 50-1 Filed 02/06/17 Page 1 of 1 PageID #: 325
United States Department of State Depu~v Assistant SecretwJ! for Visa Services Washington, D.c. 20520
February 3, 2017
Pursuant to the authority delegated to me under section 221(i) of the Immigration and Nationality Act, and taking into account the nationwide injunction issued by a federal district court in Washington State on enforcing section 3(c) of the January 27, 2017, Executive Order on Protecting the Nation from Foreign Terrorist Entry into the United States, I hereby reverse the provisional revocation of all visas provisionally revoked by my letter of January 27, 2017, which implemented section 3(c) of the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals.
This document is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Edward J. Ramotowski Deputy Assistant Secretary Bureau of Consular Affairs Department of State

 </s> Case 1:17-cv-00480-CBA Document 66 Filed 02/10/17 Page 1 of 2 PageID #: 828

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

------------------------------------ x

:

HAMEED KHALID DARWEESH, et al.,

:

Petitioners, v.

:
: Civil Action No. : CV-17-480 :

DONALD TRUMP, President of the United States, et al.,

: : :

(Amon, J.)

Respondents.

:

:

------------------------------------ x

RESPONDENTS’ NOTICE OF MOTION NOTICE IS HEREBY GIVEN that on February 10, 2017, Respondents will and hereby do move this Honorable Court to dismiss Petitioners’ pleading under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Respondents will also and hereby do brief their opposition to Petitioners’ motion for a preliminary injunction under Rule 65(a). The grounds for this motion are set forth more fully in the attached supporting brief.

Case 1:17-cv-00480-CBA Document 66 Filed 02/10/17 Page 2 of 2 PageID #: 829

Dated: February 10, 2017
CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director
GISELA A. WESTWATER Assistant Director
EREZ REUVENI Senior Litigation Counsel
SAMUEL P. GO Senior Litigation Counsel

Respectfully submitted,
s/ Steven A. Platt STEVEN A. PLATT Trial Attorney District Court Section Office of Immigration Litigation U.S. Department of Justice – Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 532-4074 Fax: (202) 305-7000 E-mail: steven.a.platt@usdoj.gov
Counsel for Respondents

2

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 1 of 21 PageID #: 830

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

------------------------------------ x

:

HAMEED KHALID DARWEESH, et al.,

:

Petitioners, v.

:
: Civil Action No. : CV-17-480 :

DONALD TRUMP, President of the United States, et al.,

: : :

(Amon, J.)

Respondents.

:

:

------------------------------------ x

RESPONDENTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS THE PETITION, AND
IN OPPOSITION TO PETITIONERS’ MOTION FOR A STAY
INTRODUCTION On January 28, 2017, less than a day after the signing of the Executive Order (“the Executive Order” or “Order”) revoking the immigrant visas of Iraqi nationals, Petitioners alleged Respondents detained the two named Petitioners in this case, Iraqi nationals named Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq Alshawi, at John F. Kennedy International Airport in New York. Petitioners filed a “Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief,” challenging their detention on behalf of a putative class. Petitioners suggest several theories for why the Executive Order was unlawful, but the Court cannot hear those claims for one simple reason: Respondents are not detaining Petitioners, and Petitioners have since been admitted into the United States. The Petition should be dismissed based on lack of jurisdiction: any detention claims have been rendered moot by virtue of Petitioners’ admission to the United States. This result holds notwithstanding Petitioners’

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 2 of 21 PageID #: 831
class claims because no class had been certified prior to the case becoming moot. For these reasons, and as explained more fully below, Respondents move the Court to
dismiss the Petition for lack of subject-matter jurisdiction. Further, Petitioners cannot state a claim under the Fifth Amendment, the Immigration and Nationality Act, the Convention Against Torture, or the Administrative Procedure Act, so Respondents move the Court to dismiss the Petition for failure to state a claim. Respondents also oppose the issuance of a preliminary injunction or a stay of removal, because the Petition’s failure to state a claim means Petitioners have no likelihood of success and any such order, perforce unattached to any live claim, would be overly broad.
BACKGROUND I. The President’s Order On January 27, 2017, the President issued the Executive Order “to protect the American people from terrorist attacks by foreign nationals admitted to the United States.” Exec. Order No. 13769, Protecting the Nation from Foreign Terrorist Entry into the United States, 82 Fed. Reg. 8977 (Jan. 27, 2017) § 2. The Executive Order directs a number of actions in the interests of national security. Id. §§ 2–11. Relevant here, the Executive Order suspends entry for ninety days of aliens from seven countries, including Iraq. Id. § 3(c). Those seven countries were previously identified as being associated with a heightened risk of terrorism pursuant to 8 U.S.C. § 1187(a)(12). Congress expressly excluded from eligibility to travel under the visa-waiver program (“VWP”) aliens who were dual nationals of a VWP country (e.g., France and Germany) and of Iraq and Syria, or were nationals of any country designated as a state sponsor of international terrorism under other laws, see id.
2

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 3 of 21 PageID #: 832
§ 1187(a)(12)(A)(i)(II), (ii)(II) (currently Iran, Sudan, and Syria),1 see 8 U.S.C. § 1187(a)(12)(A)(ii)(I)–(II), as well as any individuals who traveled to one or more of those countries on or after March 1, 2011, see id. § 1187(a)(12)(A)(i)(I)–(II).
Congress also authorized the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, to designate additional “[c]ountries or areas of concern” for purposes of the VWP travel restrictions. See id. § 1187(a)(12)(A)(i)(III), (A)(ii)(III), (D). In making such a determination, the Secretary must consider “whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States”; “whether a foreign terrorist organization has a significant presence in the country or area”; and “whether the country or area is a safe haven for terrorists.” Id. § 1187(a)(12)(D). In February 2016, the Secretary designated Libya, Somalia, or Yemen as countries of concern for purposes of the VWP restriction at § 1187(a)(12)(A)(i) (travel to a designated country on or after March 1, 2011). See Dep’t of Homeland Sec., DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016), https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictions-visa-waiverprogram.
Accordingly, these seven countries designated for purposes of the VWP travel restrictions—including three also designated for nonimmigrant visa issuance restrictions, see 8 U.S.C. § 1735—are the same seven countries covered by § 3 of the Executive Order. See § 3(c)
1 Congress, in 2002, also enacted a provision barring issuance of a nonimmigrant visa to any national of a country designated as a state sponsor of international terrorism “unless the Secretary of State determines, in consultation with the [Secretary of Homeland Security] and the heads of other appropriate United States agencies, that such alien does not pose a threat to the safety or national security of the United States.” 8 U.S.C. § 1735(a).
3

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 4 of 21 PageID #: 833
(incorporating by reference “countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12)”).
On February 1, 2017, White House Counsel issued a Memorandum clarifying that suspension of entry pursuant to § 3(c) does not apply to lawful permanent residents—that is, an immigrant admitted with the privilege of residing permanently in the United States, 8 U.S.C. § 1101(a)(20)). Memorandum from Counsel to the President Donald F. McGahn II (“White House Memorandum”) (ECF No. 36-1); see 8 U.S.C. § 1101(a)(20).
II. Timeline of Significant Events and Procedural History The President issued the Executive Order in the afternoon of January 27, 2017. That evening, Petitioners, two Iraqis holding immigrant visas, arrived at John F. Kennedy International Airport. Pet. for Writ of Habeas Corpus and Compl. for Declaratory and Injunctive Relief (“Pet.”) p.1. One of the two men, according to Petitioners, Hameed Khalid Darweesh, held a Special Immigrant Visa as an Iraqi interpreter to American forces. Id. ¶ 4. The other, Haider Sameer Abdulkhaleq Alshawi, Petitioners allege, held an F2A “follow to join” immigrant visa. Id. ¶ 5. According to the Petition, upon arrival at the airport, U.S. Customs and Border Protection inspected Petitioners, denied their admission to the United States per the Executive Order, and held Petitioners in its custody. The next day, Petitioners filed their Petition and an emergency motion for injunctive relief. Counsel for Petitioners represented that one of Petitioners had been released by then, but was unsure of the other’s status. Tr. of Emergency Mot. Hr’g at 3 (ECF No. 17). The Court granted a temporary restraining order enjoining Respondents from removing individuals from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, who are legally authorized to enter the United States. (ECF No. 8).
4

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 5 of 21 PageID #: 834
At a status hearing the following week, Counsel for Petitioners represented that both Petitioners had been released and admitted into the country. Tr. of Feb. 2, 2017, Status Hr’g at 8–9 (ECF No. 56). By that point at a minimum, Respondents were not detaining any individuals under the Executive Order. See also Decl. of Todd A. Hoffman (Ex. A).
At the status hearing, the Court clarified that the injunctive relief in effect was a temporary restraining order, not a stay of removal. Tr. of Feb. 2, 2017, Status Hr’g at 18 (ECF No. 56). The Court extended the temporary restraining order until February 21, 2017, and ordered the parties to brief whether the temporary restraining order should continue as a preliminary injunction.
Respondents now file this opposition to Petitioners’ request for a preliminary injunction and motion to dismiss the Petition.
MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION First, the Court should dismiss the Petition for lack of subject-matter jurisdiction for
mootness. Under Rule 12(b)(1), a court must dismiss a case over which it lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A challenge to subject-matter jurisdiction must be the first one the court considers. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101–02 (1998).
A federal court lacks jurisdiction over moot cases. Marrero Pichardo v. Ashcroft, 374 F.3d 46, 51 (2d Cir. 2004). A case is moot unless the litigant continues to have a personal stake in the outcome of the suit throughout all stages of federal judicial proceedings. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000). If the litigant loses such a stake, the court must dismiss the petition rather than issue an advisory opinion on an abstract proposition of law. See Spencer v. Kemna, 523 U.S. 1, 7–8 (1998). Further, a court has jurisdiction over a habeas petition only if the petitioners are “in custody.” 28 U.S.C. § 2241(c);
5

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 6 of 21 PageID #: 835
see also Baptiste v. INS, No. 06-cv-0615 (NG), 2006 WL 3050884, at *2 (E.D.N.Y. Oct. 23, 2006).
Each of the Petition’s five claims addresses detention and charges Respondents with violating: Petitioners’ procedural due process rights by inhibiting them from applying for asylum (Count One); Petitioners’ procedural due process rights by inhibiting them from applying for withholding of removal and Convention Against Torture (“CAT”) relief (Count Two); the Immigration and Nationality Act and CAT (Count Three); Petitioners’ rights under the Equal Protection Clause (Count Four); and the Administrative Procedure Act (Count Five). For these alleged wrongs, the Petition seeks both “a writ of habeas corpus to remedy their unlawful detention by Respondents, and for declaratory and injunctive relief to prevent such harms from recurring.” Pet. p.3; accord id. Prayer for Relief.
The relief sought by Petitioners is no longer meaningful: Petitioners are not being detained, and themselves agree that they have in fact been admitted to the United States. Tr. of Feb. 2, 2017, Status Hr’g at 8–9 (ECF No. 56). They therefore lack a personal stake in the outcome of this case, and a favorable judicial ruling would not affect any of Petitioners’ legal rights or redress any injury. Similarly, the habeas portions of their lawsuit must be dismissed because Petitioners are not in custody. Petitioners’ case is moot and must be dismissed for lack of subject-matter jurisdiction, and the Court cannot reach the merits of this case to issue an advisory opinion.
Judges sitting in the Eastern District of New York alone have dismissed similar cases involving the Executive Order:
1.) Morshed v. Trump, et al., 17-503 (Amon, J.), voluntary dismissal (“VD”) 1/30, dismissed by the court (“D”) 1/30
6

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 7 of 21 PageID #: 836
2.) Alinejan v. Trump, et al., 17-498 (Vitaliano, J.), VD 1/29, D 1/30 3.) Fasihianifard v. Trump, et al., 17-496 (Amon, J.), VD 1/30, D 1/31 4.) Hatahet v. Trump, et al., 17-495, (Amon, J.), VD 1/30, D 1/31 5.) Emamjomeh v. Trump, et al., 17-494 (Amon, J.), VD 2/2, D 2/3 6.) Ahmed v. Trump, et al., 17-493 (Amon, J.), VD 1/30, D 1/31 7.) Bayani v. Trump et al., 17-492, (Amon, J.), VD 1/31, D 1/31 8.) Jalager v. Trump, et al., 17-490 (Amon, J.), VD 1/30, D, 2/1 9.) Rashekhi v. Trump et al., 17-489 (Amon, J.), VD 1/30, D, 1/31 10.) Alqaissi v. Trump et al., 17-487 (Mauskopf, J.), VD 1/30, D 1/30 11.) Sabounchi v. Trump et al., 17-486 (Cogan, J.) VD 1/30, D 1/30 12.) Rasekhi v. Trump, et al., 17-485 (Amon, J.), VD 1/31, D 2/1 13.) Al Saeedi v. Trump et al., 17-484 (Matsumoto, J.), VD 1/29, D 1/30 14.) Alknfushe v. Trump, et al., 17-483 (Amon, J.), VD 2/6, D 2/8.
The Court should reach the same disposition. Moreover, although the Petition wants proactive relief “to prevent such harms from
recurring,” any such recurrences are conclusory and speculative. When a habeas petitioner is no longer in custody, to demonstrate a case or controversy, the petitioner must plead a concrete and continuing injury that is a collateral consequence of the detention. Spencer, 523 U.S. at 7; So v. Reno, 251 F. Supp. 2d 1112, 1120–21 (E.D.N.Y. 2003). Since Petitioners’ release, Petitioners have neither alleged evidence of a concrete, continuing injury, nor have they established one. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (indicating that at each stage, the party invoking federal jurisdiction bears the burden of establishing Article III standing); Baptiste, 2006 WL 3050884, at *2 (“[I]t is hard to imagine any possible ‘collateral consequences’ of petitioner’s detention. She has not indicated any such consequences to the court.”).
The injury allegedly suffered by Petitioners ended when they were lawfully admitted to the United States. Given their admission to the United States, both Petitioners have a lawful
7

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 8 of 21 PageID #: 837
immigration status authorizing them to live and work in the United States, and neither needs to seek asylum, withholding of removal, or relief under CAT, the subject of some of their claims. Indeed, even if they were subject to removal proceedings now that they have been admitted, the law provides sufficient process for that procedure. See, e.g., 8 U.S.C. § 1229a. Petitioners thus no longer have a personal stake in this case, and the Court should dismiss their Petition.
Petitioners do not fall within the narrow exception to the mootness doctrine for cases that are “capable of repetition, yet evading review.” See Van Wie v. Pataki, 267 F.3d 109, 113–14 (2d Cir. 2001) (quotation omitted). For that doctrine to save their claims, Petitioners must show a “reasonable expectation that the same complaining party will be subjected to the same action again.” Id. at 114 (citation and quotation omitted) (emphasis added); Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (finding case moot because prisoner who had obtained full release from supervision had no interest whatsoever in procedures followed by the parole board as to other prisoners because “there is no demonstrated probability that [he] will again be among that number”). Again, Petitioners have made no such allegations.
In addition, Petitioners’ pending motion for class certification does not compel a contrary result. “[I]n general, if the claims of the named plaintiffs become moot prior to class certification, the entire action becomes moot.” Comer v. Cisneros, 37 F.3d 775, 798 (2d Cir. 1994) (citing Bd. of Sch. Comm’rs of Indianapolis v. Jacobs, 420 U.S. 128, 129–30 (1975) (per curiam)) (emphasis added); see Swan v. Stoneman, 635 F.2d 97, 102 n.6 (2d Cir. 1980) (“As a general rule, a class action cannot be maintained unless there is a named plaintiff with a live controversy both at the time the complaint is filed and at the time the class is certified.”). This is because “[t]he unnamed class members are not technically part of the action until the court has certified the class; therefore, once the named plaintiffs’ claims are dismissed, there is no one who
8

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 9 of 21 PageID #: 838
has a justiciable claim that may be asserted.” Bowens v. Atl. Maint. Corp., 546 F. Supp. 2d 55, 75–76 (E.D.N.Y. 2008); cf. Fed. R. Civ. P. 23(a).
Petitioners’ claims mooted, at the absolute latest, by February 2, 2017. Because no class was certified by that date, the entire action has become moot. To the extent Petitioners are trying to maintain standing based on other similarly-situated individuals, they have not identified anyone who has suffered the same injuries alleged in the Petition. Indeed, the Government has provided sufficient information that there is no individual who would fall within such a class. See, e.g., Letters from Steven A. Platt to Muneer I. Ahmad, Pet’rs’ Exs. H, I (ECF No. 53-3 at 24, 26); accord Decl. of Todd A. Hoffman (Ex. A). Consequently, the Court must dismiss the Petition as moot.
Therefore, not only are Petitioners’ habeas claims moot, so are their claims for declaratory and injunctive relief—claims that are inextricably linked to their alleged former detention. Now that this relief has been afforded to them, “there is no continuing controversy subject to redress by the Court.” Silent v. Holder, No. 12-cv-1981 (CBA), 2013 WL 1386343, at *2 (E.D.N.Y. Apr. 4, 2013). The Court must dismiss the petition for lack of subject-matter jurisdiction.
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Alternatively, the Court should dismiss the Petition under Federal Rule of Civil Procedure 12(b)(6). Rule 8(a)(2) requires a pleading to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” A court must dismiss a pleading that fails to make that showing. Fed. R. Civ. P. 12(b)(6). In assessing a pleading’s sufficiency, the court must take all factual allegations as true, but ignore “legal conclusion[s] couched as” facts. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007).
9

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 10 of 21 PageID #: 839
A. Petitioners Fail to State Procedural Due Process Claims In Counts One and Two, Petitioners claim a violation of their procedural due process rights. Specifically, they claim they have a constitutional right to apply for asylum, withholding of removal, and CAT relief. To make a procedural due process claim in the immigration context, a plaintiff must plead “some cognizable prejudice fairly attributable to the challenged process.” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008). Petitioners have not shown any prejudice stemming from Respondents’ alleged refusal to let them apply for protections from removal. They have been admitted into the country, and there is no allegation that they face removal. The only relevant relief they seek is a declaratory judgment that the refusal was “unauthorized by statute and contrary to law.” Pet. p.18 (ECF No. 1). For lack of prejudice, the Court should dismiss Counts One and Two for failing to state a claim. See Garcia-Villeda, 531 F.3d at 149 (“Our role is ‘to provide relief to claimants . . . who have suffered . . . actual harm.’” (ellipses in original)). In Count Three, Petitioners claim that they have been deprived of their statutory rights to apply for relief and protection from removal under the INA and CAT. As explained above, the Executive Order has not deprived Petitioners of any rights with regard to asylum, withholding of removal, or CAT protection, which remain available to Petitioners, including if they were ever placed in removal proceedings under § 1229a. Cf. Landon, 459 U.S. at 26–27 (holding that lawful permanent residents are entitled to some due process in removal proceedings). Count III therefore does not state a claim.
10

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 11 of 21 PageID #: 840
B. Petitioners Fail to State an Equal Protection Claim Count Four alleges that the Executive Order violates the equal protection component of the Fifth Amendment’s Due Process Clause. But again, because Petitioners were admitted to the United States, their Due Process Clause rights have not been impaired. In any event, where an equal protection claim is made to an immigration law, at most only rational basis review applies. See, e.g., Mathews v. Diaz, 426 U.S. 67, 83 (1976); United States v. Lue, 134 F.3d 79, 86 (2d Cir. 1998). Rational basis review applies even when the federal government distinguishes among aliens on the basis of nationality. Romero v. USINS, 399 F.3d 109, 112 (2d Cir. 2005). “[I]mmigration regulation differs fundamentally from [other legal contexts] because classifications on the basis of nationality are frequently unavoidable in immigration matters.” Rajah v. Mukasey, 544 F.3d 427, 435 (2d Cir. 2008) (“Given the importance to immigration law of, inter alia, national citizenship, passports, treaties, and relations between nations, the use of such classifications is commonplace and almost inevitable.”). For example, the Second Circuit has applied rational basis review to reject a Mexican national’s equal protection challenge to the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), which reserves certain immigration benefits for nationals of Cuba, Nicaragua, and other nations. Romero, 399 F.3d at 112 (collecting cases in accord from other courts of appeals).2
2 Indeed, the Second Circuit’s standard may even be less than standard rational basis review. Given the “special deference” due to the political branches in “the immigration area, the precise outer boundaries of [judicial] review are unclear.” Rojas-Reyes v. INS, 235 F.3d 115, 122 (2d Cir. 2000). Respondents do not concede rational review applies, but the Court need not decide the issue because an injunction is inappropriate under that standard.
11

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 12 of 21 PageID #: 841
Rational basis review does not require courts to identify the actual rationale for the distinction; moreover, a “sufficient reason need not be one actually considered.” Yuen Jin v. Mukasey, 538 F.3d 143, 158 (2d Cir. 2008); see Rojas-Reyes, 235 F.3d at 122 (“[B]ecause we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged [law] actually motivated the legislature.” (second alteration in original)). Instead, a law reviewed under this lens “is accorded a strong presumption of validity,” and the court must uphold the law “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Jankowski-Burczyk v. INS, 291 F.3d 172, 178 (2d Cir. 2002); Rajah, 544 F.3d at 438 (noting a nationality-based distinction must be upheld if it is “not wholly irrational”). This means that a law cannot be invalidated merely because it is underbroad. See Romero, 399 F.3d at 112 (rejecting an argument that NACARA was unconstitutionally underbroad, noting the law’s virtue of creating “extremely identifiable groups” (quoting Pinho v. INS, 249 F.3d 183, 190 (3d Cir. 2001)).
If the rational basis standard were to apply here, the Executive Order easily satisfies it. The reasonably conceivable state of facts rationally supporting the Executive Order include: the immigration apparatus’s failures before September 11; the “[n]umerous foreign-born individuals” who have been convicted or implicated in terrorism-related crimes since September 11; and the increasing likelihood “that terrorists will use any means possible to enter the United States” because of “[d]eteriorating conditions in certain countries due to war, strife, disaster, and civil unrest.” Order § 1. Moreover, these seven countries were already identified pursuant to 8 U.S.C. § 1187(a)(12)—Iraq, Syria, Iran, and Sudan by designation in or operation of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, and Libya, Somalia,
12

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 13 of 21 PageID #: 842
and Yemen through statutorily-authorized designation by the Executive Branch in February 2016.
Plaintiffs may attempt to rely on alleged subjective motivations for enacting the Executive Order, but such allegations are simply irrelevant. See Rojas-Reyes, 235 F.3d at 122. Similarly, it is irrelevant how closely tailored the Executive Order is to its rational basis. See Romero, 399 F.3d at 112. The Executive Order is supported by several rational reasons stated clearly in the document and so must survive equal protection challenge.
For that reason, and because Petitioners have already been granted the immigration benefits they seek, Count IV fails to state a claim. See also Louhghalam v. Trump, No. 1710154-NMG, 2017 WL 479779 at *3–4 (D. Mass. Feb. 3, 2017) (refusing to issue a preliminary injunction and declining to extend a temporary restraining order against the Executive Order after finding that plaintiffs did not establish a likelihood of success on the merits on their equal protection claim).
C. Petitioners Fail to State a Claim under the Administrative Procedure Act Finally, in Count V Petitioners claim that the Executive Order was executed in violation of the Administrative Procedure Act. Specifically, they claim that Respondents’ actions were unlawful because the INA does not authorize “discrimination in issue of visas based on a person’s race, nationality, place of birth, or place of residence,” and the INA does not authorize “Respondents’ detention and mistreatment of Petitioners.” Pet. ¶¶ 72–74. Petitioners fail to state a claim under the APA in either regard. First, 8 U.S.C. § 1152(a)(1)(A) does provide, with certain exceptions, that “no 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.” (emphasis added). But
13

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 14 of 21 PageID #: 843
Petitioners were already issued immigrant visas or refugee status before this case began. Now that they have been admitted into the United States, there is no further need for them to seek an immigrant visa. And more to the point, 8 U.S.C. § 1152(a)(1)(B) makes clear that the statute does not “limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications.” Thus, the Executive Order is not covered by the restrictions of subsection (A), because the Executive Order directs a review and revision of procedures for processing of visa applications and adopts procedures for a temporary suspension and then resumption of processing of certain visa applications following that review. See, e.g., Order §§ 3(a), 5(a). Even if Petitioners alleged a justiciable claim as to issuance of their visas, as distinct from entry, § 1152(a)(1)(B) provides broad discretion to the Executive to take the actions that the Executive Order directs regarding visas, to the extent § 1152(a)(1)(A) applies at all. Therefore, they cannot succeed on a claim that Respondents unlawfully withheld an immigrant visa from them.
Second, as for Petitioners’ ultra vires detention claim, they cannot assert a claim under the APA because, even assuming their claims are true, they have been released. “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. “Agency action” is an APA term of art defined to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Id. § 551(13). This definition connotes formality: “the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 178 (1997). For example, an immigration court’s final order of removal is a “final agency action,” Kambolli v. Gonzales, 449 F.3d 454, 461 (2d Cir. 2006), as is the
14

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 15 of 21 PageID #: 844
revocation of lawful permanent resident status, Sharkey v. Quarantillo, 541 F.3d 75, 89 (2d Cir. 2008). However, any alleged temporary and brief “detention” or “mistreatment” of Petitioners did not determine any of their legal rights, such as their immigration status. Cf. United States v. Galloway, 316 F.3d 624, 629 (6th Cir. 2003) (“[S]econdary inspection is no less a matter of course and no less routine than the primary inspection.”); Tabbaa v. Chertoff, 509 F.3d 89, 96 (2d Cir. 2007). There is therefore no final agency action for the Court to review under the APA.
Moreover, Petitioners are not “suffering” a legal wrong, because they have already been released and admitted into the United States. They are thus no longer “adversely affected or aggrieved by agency action,” and so fail to state a claim on Count V.
PRELIMINARY INJUNCTION If the Court does not dismiss the Petition, then Respondents respectfully urge the Court to deny Petitioners’ request for a preliminary injunction.3 A preliminary injunction is “an extraordinary and drastic remedy.” Munaf v. Geren, 553 U.S. 674, 689 (2008). A party seeking such relief “must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). The moving parties—that is, Petitioners—carry the burden of proving these elements. Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 510 (2d Cir. 2005). Because both Congress and Article II of the U.S. Constitution provide for the President to conduct affairs involving matters of national security, Arar v. Ashcroft, 585 F.3d 559, 570 (2d
3 Petitioners style their motion as one for a “stay of removal.” (ECF No. 4). However, a stay of removal is available only from a court of appeals, and only in the context of an alien petitioning for review of a final order of removal. 8 U.S.C. § 1252(b)(3)(B). Accordingly, and consistent with the Court’s comments at the February 2, 2017, status hearing, Respondents treat the motion as one for a preliminary injunction.
15

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 16 of 21 PageID #: 845
Cir. 2009) (en banc), courts have consistently “recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context.” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (“[I]t 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”). Thus, injunctive relief that would “deeply intrude[] into the core concerns of the executive branch”— such as foreign affairs and national security—may be awarded only where the plaintiff “make[s] an extraordinarily strong showing” as to each element. Adams v. Vance, 570 F.2d 950, 954–55 (D.C. Cir. 1978) (emphasis added); see Att’y Gen. of Can. v. R.J. Reynolds Tobacco Holdings, Inc., 268 F.3d 103, 114 (2d Cir. 2001) (“The establishment of political or economic policies is not for the courts. Such action would be an abuse of judicial power.”).
I. There Is No Likelihood of Success on the Merits The first factor a court must consider when deciding whether to issue a preliminary injunction is the moving party’s likelihood of success on the merits. See Winter, 555 U.S. at 22 (“Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”). Any inquiry into the merits must first consider threshold issues such as Article III standing and subject-matter jurisdiction, which if not satisfied by the movant, require finding in the government’s favor on this factor. See Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011). If the plaintiff lacks standing under Article III of the U.S. Constitution, then the court lacks subject matter jurisdiction, and the case must be dismissed. See e.g., Steel Co., 523 U.S. at 101–02. For the reasons above, mootness deprives Petitioners of any chance of reaching—much
16

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 17 of 21 PageID #: 846
less succeeding on—the merits. The Court should therefore decline an injunction on this ground. But even if the Court reaches the merits of this case, as also explained above, the Petition
fails to state a single claim. They therefore cannot show a likelihood of success on any part of their case.
II. The Petitioners Have Not Shown Any Irreparable Harm Petitioners also have not shown any irreparable harm. Even if the circumstances that gave rise to Petitioners’ Complaint were, at the time, an injury sufficient to meet the standard for irreparable harm, that is not the case today. That is because Petitioners are receiving the relief they seek—the Petitioners are not in any immigration custody, and have been admitted into the country. Petitioners must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction. Winter, 555 U.S. at 24. Irreparable harm represents a loss that cannot possibly be remedied at the conclusion of the litigation: “The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974). A showing of “probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir. 1990) (internal quotations and citations omitted). “[A] mere possibility of irreparable harm is insufficient to justify the drastic remedy of a preliminary injunction.” Borey v. Nat’l Union Fire Ins., 934 F.2d 30, 34 (2d Cir. 1991). Irreparable harm is “an injury that is not remote or speculative but actual and imminent.” Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 37 (2d Cir. 1995).
17

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 18 of 21 PageID #: 847
Here, Petitioners’ claims of injury relate solely, even accepting their allegations, to their temporary and brief detention. The Prayer for Relief asks the Court to issue a writ of habeas corpus, enjoin Respondents from detaining Petitioners, and declare that Respondents’ detention of Petitioners is unlawful. Again, the current Petitioners are no longer, in any fashion, in the same position they were when they filed the Petition. Therefore, Petitioners are facing no harm whatsoever, much less irreparable harm. Any suggestion of harm—which Petitioners have not articulated—would be speculative. Nor can Petitioners base their request for injunctive relief on the claim that others who are not before this Court will suffer irreparable harm in the absence of preliminary injunctive relief. See Moore, 409 F.3d at 511. Accordingly, there is no need for injunctive relief, as Petitioners’ injury will have been fully remedied by the time of the hearing on this issue.
III. The Balance of Harms and Public Interest Require Denial of Relief The final two factors required for preliminary injunctive relief require the Court to balance the harm to the opposing party and the public interest. Winter, 555 U.S. at 24. Here, courts must “pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Id. Any order that enjoins a governmental entity from enforcing federal laws related to national security constitutes an irreparable injury that weighs heavily against the entry of injunctive relief. See New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers). In this vein, the Supreme Court has specifically acknowledged that “[f]ew interests can be more compelling than a nation’s need to ensure its own security.” Wayte v. United States, 470 U.S. 598, 611 (1985). Petitioners, again, face no harm whatsoever because they have been released and lawfully admitted into the country. Petitioners cannot and do not make any concrete showing of how
18

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 19 of 21 PageID #: 848
their alleged irreparable harm will outweigh the threatened harm that an injunction would cause, or that it would not adversely affect the public interest. This failure is fatal to Petitioners’ request for the extraordinary remedy of a preliminary injunction. This prong compels against continuing the injunction.
In sum, the Court should deny Petitioners a preliminary injunction. See also Louhghalam, 2017 WL 479779 at *3–7 (D. Mass. Feb. 3, 2017) (refusing to issue a preliminary injunction and declining to extend a temporary restraining order against the Executive Order after finding, inter alia, that plaintiffs did not establish a likelihood of success on the merits).4
CONCLUSION Petitioners have been admitted to the United States, and are not in Respondents’ custody. For the foregoing reasons, Respondents respectfully request that the Court dismiss the Petition— which is premised entirely on detention claims—for lack of subject-matter jurisdiction or for failure to state a claim. In the alternative, Respondents ask the Court to deny Petitioners’ request for a stay of removal or a preliminary injunction.
4 Cf. Washington v. Trump, No. C17-0141 JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017) (granting a nationwide temporary restraining order with summary opinion), emergency motion for a stay denied, No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 9, 2017) (denying a stay of the temporary restraining order where the Government bore the burden of demonstrating the necessity of a stay).
19

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 20 of 21 PageID #: 849

Dated: February 10, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director
GISELA A. WESTWATER Assistant Director
EREZ REUVENI Senior Litigation Counsel
SAMUEL P. GO Senior Litigation Counsel
By: s/ Steven A. Platt STEVEN A. PLATT Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 532-4074 Fax: (202) 305-7000 steven.a.platt@usdoj.gov
Counsel for Respondents

20

Case 1:17-cv-00480-CBA Document 66-1 Filed 02/10/17 Page 21 of 21 PageID #: 850 CERTIFICATE OF SERVICE
I hereby certify that on February 10, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Eastern District of New York by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
s/ Steven A. Platt STEVEN A. PLATT Trial Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section Counsel for Respondents
21

Case 1:17-cv-00480-CBA Document 66-2 Filed 02/10/17 Page 1 of 3 PageID #: 851
EXHIBIT A

Case 1:17-cv-00480-CBA Document 66-2 Filed 02/10/17 Page 2 of 3 PageID #: 852

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al., Plaintiffs,
v.
DONALD TRUMP, et al., Defendants.

)

)

)

Civil Case No.

)

17-CV-00480 (AMD)

)

)

)

)

)

)

)

TODD A. HOFFMAN DECLARATION
In accordance with the provisions of28 U.S.C. § 1746, I, Todd A. Hoffman, declare the following to be true and correct:
1. I am the Executive Director of Admissibility and Passenger Programs ("APP"), within the Office of Field Operations, U.S. Customs and Border Protection ("CBP"), an agency within the Department of Homeland Security ("DHS"). I make this declaration based on my own personal knowledge and information provided to me in the course of my official duties.
2. As Executive Director of Admissibility and Passenger Programs, I am responsible for overseeing and coordinating all CBP programs related to the admission and processing of international visitors and travelers to the United States.
3. I am familiar with the President's Executive Order 13769, "Protecting the Nation from Foreign Terrorist Entry into the United States" issued on January 27, 2017 ("Executive Order").
4. I, as well as others on my staff who work under my supervision, have reviewed CBP data and other information related to the inspection and processing of international visitors to the United States who arrived and applied for admission at United States ports of entry, and at CBP preclearance locations, after the signing of the Executive Order on January 27, 2017.
5. As of 5:00 PM on Tuesday, February 7, 2017, CBP records reflect that CBP is not currently detaining, on the basis of the Executive Order, any individual who arrived and applied for admission at a United States port of entry, or at a CBP preclearance location.

Case 1:17-cv-00480-CBA Document 66-2 Filed 02/10/17 Page 3 of 3 PageID #: 853
6. As of 5:00 PM on Tuesday, February 7, 2017, CBP records reflect that CBP has not placed in removal proceedings or otherwise removed from the United States, on the basis of the Executive Order, any individual who arrived and applied for admission at a United States port of entry, or at a CBP preclearance location.
7. The above representations do not include individuals who voluntarily withdrew their applications for admission to the United States, individuals placed in removal proceedings or otherwise detained for reasons unrelated to the Executive Order, or individuals who may not have been permitted by an air carrier (acting with or without a recommendation from CBP) to board an aircraft because their visas were revoked.
I declare under penalty of perjury that the matters and facts set forth in this Declaration fall within my official purview and, based on my personal knowledge, information and belief, are true and correct.

(Date)

(City /State)

Signature:

7

7

Todd A. Hoffman

 </s> Case 1:17-cv-00480-CBA Document 71 Filed 02/10/17 Page 1 of 2 PageID #: 873

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI, on behalf of themselves and others similarly situated,
Petitioners,
and

PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK,
Intervenor-Plaintiff,
-against-

ORDER
17-CV-480 (CBA)

DONALD J. TRUMP, U.S. DEPARTMENT OF HOMELA D SECURITY, U.S. CUSTOMS AND BORDER PROTECTION , JOl-IN KELLY, KEVIN K. MCAL EENA , and JAMES T. MADDEN ,
Respondents.
----------------------------------------------------------X
AMON, United States District Judge:
This matter came before the Court upon the New York State Attorney General ' s Motion to
, Intervene in the Combined Petition for Writ of Habeas Corpus and Complaint for Declaratory and
Injunctive Relief. Having read and considered all memoranda of law, and respondents having filed
no opposition to this Motion, the Court finds that the New York State Attorney General is entitled
to intervene in this action pursuant to Federal Rule of Civil Procedure 24(a)(2). Therefore, IT IS
HEREBY ORD ERED that:
1. The New York State Attorney General ' s Motion to Intervene is GRANTED, and the
movant shall be made an Intervenor-Plaintiff in this action.
2. The Proposed Comp laint in Intervention attached to the Motion shall stand as the
Complaint in Intervention of the New York State Attorney General in this action.

Case 1:17-cv-00480-CBA Document 71 Filed 02/10/17 Page 2 of 2 PageID #: 874

SO ORDERED.

I0 , Dated: February

2017

Brooklyn, New York

Carol Bagley Amon United States District Judge

2

 </s> Case 1:17-cv-00480-CBA Document 60 Filed 02/08/17 Page 1 of 4 PageID #: 815

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
------------------------------------------------------X
HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI, on behalf of themselves and others simi larly situated,

Petitioners,
-against-
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY ("DHS"); U.S. CUSTOMS AND BORDER PROTECTION ("CBP"); JOHN KELLY, Secretary ofDHS ; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and JAMES T. MADDEN , New York Field Director, CBP,

NOT FOR PUBLICATION ORDER 17-cv-480(CBA)

Respondents .
------------------------------------------------------X
AMON, United States District Judge:

On January 28, 2017, Petitioners filed the above-captioned complaint with this Court in which they propose to represent a class "consisting of all individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States, but who have been or will be denied entry to the United States on the basis of the January 27, 2017 Executive Order. " (See D.E. # 1.) Petitioners sought various forms of relief, including a writ of habeas corpus ordering their rel ease and the release of other detained members of the proposed class; an injunction barring Respondents from detaining anyone solely on the basis of the Executive Order; and a judgment declaring that the detention of Petitioners and/or members of the proposed class is illegal. Petitioners further filed an Emergency Motion for a Stay of Removal.

1

Case 1:17-cv-00480-CBA Document 60 Filed 02/08/17 Page 2 of 4 PageID #: 816
After hearing the parties, the Honorable Ann Donnelly granted a temporary restraining order enjoining Respondents "from, in any manner or by any means, removing individuals with refugee applications approved by U.S . Citizenship and Immigration Services as part ofthe U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States." (D.E. # 8.) Judge Donnelly also set a briefing schedule for the parties, with Respondents to respond to Petitioners' motion by February 10,201 7, Petitioners' opposition due by February 13, 2017, and Respondents' reply, if any, due by February 21, 2017. Finally, in response to Petitioners' request for information concerning other potential class members being held and denied entry incident to the Executive Order, Judge Donnelly instructed Respondents to provide Petitioners with "a li st of people that are detained" pursuant to the Executive Order. No date was set for a preliminary injunction hearing. Petitioners also filed a motion for class certification.
Because this Court had concerns that it was not clear what issues were to be briefed in the schedule set by Judge Donnelly and whether continuation of the relief provided for by Judge Donnelly had become moot, the Court held a status conference on February 2, 2017. At the conference, as reflected in the minute entry filed that same day, the parties agreed to confer amongst themselves and to provide the Court with information regarding what issues were outstanding and their mutually agreed-upon briefing schedule. The parties have not to date provided the Court with this information.
Also at the status conference, Petitioners raised the issue of obtaining from Respondents the list of members of the proposed class who had been detained pursuant to the Executive Order that had been ordered produced by Judge Donnelly. Petitioners indicated that they would attempt
2

Case 1:17-cv-00480-CBA Document 60 Filed 02/08/17 Page 3 of 4 PageID #: 817
to resolve this issue with Respondents. The Court advised that if they could not resolve the issue, Petitioners could make an application to the Court.
On February 7, 2017, Petitioners filed a motion seeking (1) a list of "all individuals ever detained" or "processed" pursuant to the Executive Order, and (2) a list, beginning from the time of Petitioners' filing of their motion for class certification, of everyone removed pursuant to the Executive Order (and additional information surrounding their removal). The motion also seeks injunctive relief broader than ordered by Judge Donnelly, in that it requests that the Court order the "[r]eturn to the United States [of] all individuals who were removed at any time after the filing of [Petitioners' motion for class certification] because of the Executive Order."
It is hereby : ORDERED that by February 13 , 2017 at noon, the parties, as they had committed to do, file a letter informing the Court of the issues to be briefed and the agreed-upon briefing schedule; and it is further ORDERED that by February 10, 2017 at 5:00p.m., Respondents submit a memorandum in response to Petitioners' motion requesting (1) a list of all people who were detained or subject to additional processing pursuant to the Executive Order and, (2) a list of all people removed pursuant to the Executive Order since the filing of the motion for class certification, the countries to which they were removed, the flights on which they were removed, and the times at which they were removed; and it is further ORDERED that by February 16, 2017, Respondents submit a memorandum in response to Petitioners' application for an order returning all individuals removed pursuant to the Executive Order after Petitioners filed their motion for class certification. Petitioners' reply, if any, is due
3

Case 1:17-cv-00480-CBA Document 60 Filed 02/08/17 Page 4 of 4 PageID #: 818

by February 20, 2017 . A hearing on this application will be held on February 24, 2017 at 10:00 a.m. in Courtroom lOD South before Judge Carol Bagley Amon.

SO ORDERED.

g , Dated: February

2017

Brooklyn, New York

Carol Bagley Amon United States District Judge

4

 </s> Case 1:17-cv-00480-CBA Document 61 Filed 02/08/17 Page 1 of 1 PageID #: 819

The Jerome N. Frank Legal Services Organization
YALE LAW SCHOOL
February 8, 2017

Honorable Carol Bagley Amon United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201

Re: Darweesh v. Trump, 17-CV-00480 (CBA)

Dear Judge Amon,

The parties write to propose a mutually agreed-upon schedule for briefing on two matters: Plaintiffs’ Emergency Motion for a Stay of Removal (ECF No. 6), and Defendants’ motion to dismiss. In light of the representations of the government at the status conference on February 2, 2017 that the case could proceed on a less expedited schedule than originally ordered by Judge Donnelly, and Plaintiffs’ agreement with that position, the parties attempted to negotiate a less expedited briefing schedule. However, the government has concluded that it is unable to consent to an extension of the stay. Because the stay is set to expire on February 21, 2017, this has forced the parties back to an expedited schedule. Accordingly, the parties propose the following schedule:

(1) Defendants will file their brief in response to Plaintiffs’ Emergency Motion for a Stay of Removal, as well as their motion to dismiss, by noon, February 10, 2017;
(2) Plaintiffs will file their responsive brief on both motions by February 16, 2017; and (3) Defendants will file their reply by February 19, 2017.

Plaintiffs respectfully request that the Court extend the stay briefly to ensure that the Court can more fully consider the issues presented by this case. Alternatively, the parties respectfully request that the Court rule on the stay motion before its expiration on February 21.

The parties believe that briefing on the Plaintiffs’ Motion for Class Certification (ECF No. 4) can await the Court’s adjudication of the stay motion and the motion to dismiss.

Finally, Plaintiffs state that by agreeing to the expedited schedule proposed above, they do not intend to waive any right to amend their complaint pursuant to Fed. R. Civ. P. 15.

Sincerely,

/s/ Steven A. Platt Steven A. Platt U.S. Department of Justice, Civil Division Office of Immigration Litigation Counsel for Defendants

/s/ Michael J. Wishnie Michael J. Wishnie (MW 1952) Jerome N. Frank Legal Services Organization Yale Law School Counsel for Plaintiffs

P.O. BOX 209090, NEW HAVEN, CONNECTICUT 06520-9090 • TELEPHONE 203 432-4800 • FACSIMILE 203 432-1426 COURIER ADDRESS 127 WALL STREET, NEW HAVEN, CONNECTICUT 06511

 </s> Case 1:17-cv-00480-CBA Document 62 UNITED STATES DISTRICT COURT

Filed 02/09/17 Page 1 of 2 PageID #: 820
FILED
* *. U.S. OIN:t:"Ci"!...E. .R.,,K. ~'S,..O; lF'.7FfICEE.D.N.V. . H:S -9 2017

EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------}{
HAMEED KHALID DARWEESH and HAIDER

BROOKLYN OFFICE

SAMEER ABDULKHALEQ ALSHAWI, on

behalf of themselves and others similarly situated,

Petitioners,

-against-
DONALD J. TRUMP, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND BORDER PROTECTION, JOHN KELLY, KEVIN K. MCALEENAN, and JAMES T. MADDEN,

NOT FOR PUBLICATION ORDER 17-CV-480 (CBA)

Respondents.

----------------------------------------------------------}{ AMON, United States District Judge:

On February 2, 2017, Janice Wolk Grenadier filed a pro se motion to intervene in the

above-captioned case pursuant to Federal Rule of Civil Procedure 24. Because the Court construes

prose motions liberally, it has considered Grenadier's motion to intervene "as of right" under Rule

24(a)(2) or, in the alternative, to intervene upon permission by the Court pursuant to Rule

24(b)(1)(B). In order to intervene as a matter of right under Rule 24(a)(2), "an applicant must:

(1) timely file an application, (2) show an interest in the action, (3) demonstrate that the interest

may be impaired by the disposition of the action, and (4) show that the interest is not protected

adequately by the parties to the action." In re Bank ofNew York Derivative Litig., 320 F.3d 291,

300 (2d Cir. 2003) (quoting New York News. Inc. v. Kheel, 972 F.2d 482, 485 (2d Cir. 1992)).

"Failure to satisfy any one of these requirements is a sufficient ground to deny the application."

Catanzano v. Catanzano Wing, 103 F.3d 223, 232 (2d Cir. 1996) (quoting Farmland Dairies v.

Comm'r, 847 F.2d 1038, 1043 (2d Cir. 1988)). In her motion, Grenadier fails to allege an interest

in this action that is "direct, substantial, and legally protectable." Wash. Elec. Coop.. Inc. v. Mass.

1

Case 1:17-cv-00480-CBA Document 62 Filed 02/09/17 Page 2 of 2 PageID #: 821

Mun. Wholesale Elec. Co., 922 F.2d 92, 97 (2d Cir. 1990). As a result, Grenadier's motion to

intervene pursuant to Rule 24(a) is denied.

Similarly, even if the Court construes Grenadier's motion as proceeding under a theory of

permissive intervention, it nevertheless fails. Under Rule 24(b)(1)(B), the Court may permit

Grenadier to intervene on a showing that she "has a claim or defense that shares with the main

action a common question of law or fact." Fed. R. Civ. P. 24(b)(1)(B). This determination is

committed to the "very broad" discretion of the Court. See H.L. Hayden Co. ofNew York. Inc.

v. Siemens Medical Sys., Inc., 797 F.2d 85, 89 (2d Cir. 1986). The Court considers ''whether the

intervention will unduly delay or prejudice the adjudication of the rights of the original parties"

and "factors includ[ing] the nature and extent of the intervenors' interests, the degree to which

those interests are adequately represented by other parties, and whether parties seeking

intervention will significantly contribute to full development of the underlying factual issues in

the suit and to the just and equitable adjudication of the legal questions presented." Id. (internal

quotation marks and citations omitted). Here, Grenadier has not raised a claim or defense that

shares a common question oflaw or fact with the pending litigation. As such, "it is highly unlikely

that [Grenadier's] intervention will contribute to the development of the underlying suit or to the

just and equitable adjudication" of the legal questions presented. U.S. ex rei. O'Donnell v. Bank

of Am. Corp., No. 12-CV-1422 (JSR), 2012 WL 5974137, at *2 (S.D.N.Y. Nov. 27, 2012).

The Court accordingly denies Grenadier's motion to intervene in full.

SO ORDERED.

8 , Dated: February

2017

Brooklyn, New York

i1 .a_ ~~;·: :"~"~- : -:~ {i.i~~ ~'. J~'/&.. .,./-.'.>·i··- . ·.

- .
' . ....

•.

Carol Bagley Amon United States District Judge

2
,

 </s> Case 1:17-cv-00480-CBA Document 63 Filed 02/09/17 Page 1 of 2 PageID #: 822

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------x
HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI, on behalf of themselves and others similarly situated,
Petitioners, -against-
DONALDJ. TRUMP, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND BORDER PROTECTION, JOHN KELLY, KEVIN K. MCALEENAN, and JAMES T. MADDEN,
Respondents.
----------------------------------------------------------x AMON, United States District Judge:

FilED
~U.l. Is~• ~" 01OliFnI"!EQ.O: .N V. FEB -9 2G17 ...
BROOKLYN OFFICE
NOT FOR PUBLICATION ORDER 17-CV-480 (CBA)

On February 2, 2017, Raquel Okyay filed a pro se motion to intervene in the above-

captioned case pursuant to Federal Rule of Civil Procedure 24. Because the Court construes pro se motions liberally, it has considered Okyay's motion to intervene "as of right" under Rule

24(a)(2) or, in the alternative, to intervene upon permission by the Court pursuant to Rule

24(b)(l)(B). In order to intervene as a matter of right under Rule 24(a)(2), "an applicant must:

(1) timely file an application, (2) show an interest in the action, (3) demonstrate that the interest

may be impaired by the disposition of the action, and (4) show that the interest is not protected

adequately by the parties to the action." In re Bank ofNew York Derivative Litig., 320 F.3d 291,

300 (2d Cir. 2003) (quoting New York News, Inc. v. Kheel, 972 F.2d 482, 485 (2d Cir. 1992)).

"Failure to satisfy any one of these requirements is a sufficient ground to deny the application."

Catanzano v. Catanzano Wing, 103 F.3d 223, 232 (2d Cir. 1996) (quoting Farmland Dairies v.

Comm'r, 847 F.2d 1038, 1043 (2d Cir. 1988)). In her motion, Okyay fails to allege an interest in

this action that is "direct, substantial, and legally protectable." Wash. Elec. Coop.. Inc. v. Mass.

Case 1:17-cv-00480-CBA Document 63 Filed 02/09/17 Page 2 of 2 PageID #: 823

Mun. Wholesale Elec. Co., 922 F.2d 92, 97 (2d Cir. 1990). As a result, Okyay's motion to

intervene pursuant to Rule 24(a) is denied.

Similarly, even if the Court construes Okyay's motion as proceeding under a theory of

permissive intervention, it nevertheless fails. Under Rule 24(b)(l)(B), the Court may permit

Okyay to intervene on a showing that she "has a claim or defense that shares with the main action

a common question oflaw or fact." Fed. R. Civ. P. 24(b)(1)(B). This determination is committed

to the "very broad" discretion of the Court. See H.L. Hayden Co. ofNew York. Inc. v. Siemens

Medical Sys.. Inc., 797 F.2d 85, 89 (2d Cir. 1986). The Court considers "whether the intervention

will unduly delay or prejudice the adjudication of the rights of the original parties" and "factors

includ[ing] the nature and extent of the intervenors' interests, the degree to which those interests

are adequately represented by other parties, and whether parties seeking intervention will

significantly contribute to full development of the underlying factual issues in the suit and to the

just and equitable adjudication ofthe legal questions presented." Id. (internal quotation marks and

citations omitted). Here, Okyay has not raised a claim or defense that shares a common question

of law or fact with the pending litigation. As such, "it is highly unlikely that [Okyay' s] intervention

will contribute to the development of the underlying suit or to the just and equitable adjudication"

of the legal questions presented. U.S. ex rei. O'Donnell v. Bank of Am. Corp., No. 12-CV-1422

(JSR), 2012 WL 5974137, at *2 (S.D.N.Y. Nov. 27, 2012).

The Court accordingly denies Okyay's motion to intervene in full.

SO ORDERED.
Dated: February ~ , 2017
Brooklyn, New York

a_:~7~-~
Carol Bagley Amon United States District Judge

2

 </s> Case 1:17-cv-00480-CBA Document 68 Filed 02/10/17 Page 1 of 11 PageID #: 858

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

------------------------------------ x

:

HAMEED KHALID DARWEESH, et al.,

:

Petitioners, v.

:
: Civil Action No. : CV-17-480 :

DONALD TRUMP, President of the United States, et al.,

: : :

(Amon, J.)

Respondents.

:

:

------------------------------------ x

RESPONDENTS’ OPPOSITION TO PETITIONERS’ MOTION TO ENFORCE INTRODUCTION
The Court convened an emergency, late-night hearing during which it entered a temporary restraining order enjoining Respondents from removing individuals under a recent executive order. The Court also ordered Respondents to turn over to Petitioners a list of individuals they are currently detaining under the executive order. Respondents have complied with that order and responded by informing Plaintiffs that they are not currently detaining anyone.
Nonetheless, Petitioners have filed a “motion to enforce,” seeking to prematurely commence discovery by claiming Respondents must create and produce more lists (ECF No. 53). Because Respondents have already complied with the order, there is nothing for the Court to

Case 1:17-cv-00480-CBA Document 68 Filed 02/10/17 Page 2 of 11 PageID #: 859
enforce. Additionally, the Court should decline to issue a new order imposing the obligations urged by Petitioners. Respondents respectfully ask the Court to deny Petitioners’ motion.1
BACKGROUND The President issued an executive order restricting travel to the United States for certain Iraqi nationals on the afternoon of January 27, 2017. Exec. Order No. 13769, Protecting the Nation from Foreign Terrorist Entry into the United States, 82 Fed. Reg. 8977 (Jan. 27, 2017) (“Executive Order”). That evening, Petitioners, two Iraqi nationals holding immigrant visas, arrived at John F. Kennedy International Airport in New York. Pet. for Writ of Habeas Corpus and Compl. for Declaratory and Injunctive Relief (“Pet.”) p.1. One of the two men, according to Petitioners, Hameed Khalid Darweesh, held a Special Immigrant Visa as an Iraqi interpreter to American forces. Id. ¶ 4. The other, Haider Sameer Abdulkhaleq Alshawi, Petitioners allege, held an F2A “follow to join” immigrant visa. Id. ¶ 5. According to the Petition, upon arrival at the airport, U.S. Customs and Border Protection (“CBP”) inspected Petitioners, denied their admission to the United States per the Executive Order, and held Petitioners in its custody. The next day, Petitioners filed their Petition, a motion for class certification, and an emergency motion for injunctive relief. Counsel for Petitioners represented that one of Petitioners had been released by then, but was unsure of the other’s status. Tr. of Emergency Mot. Hr’g at 3:14-17 (ECF No. 17). The Court granted a temporary restraining order enjoining Respondents from removing individuals from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, who are legally authorized to enter the United States. (ECF No. 8). Petitioners’ counsel then asked the Court for an order directing the Government to “provide a list of all the people
1 Another part of Petitioners’ motion asks the Court to order Respondents to return individuals allegedly removed after the temporary restraining order was issued. As ordered by the Court (ECF No. 60), Respondents will address that part of the motion in future briefing.
2

Case 1:17-cv-00480-CBA Document 68 Filed 02/10/17 Page 3 of 11 PageID #: 860
and whether they’re going to release them or not.” Tr. of Emergency Mot. Hr’g at 17:5–7. The Court did not grant that request. Rather, it asked Respondents, “[C]an you provide at least a list of who is being detained?” Id. at 17:11–12. Respondents’ counsel pointed out the difficulty in generating such a list, to which the Court responded, “Well, why don’t you try to work it out? Get him a list of people that are detained.” Id. at 17:16–17. Later that night, the Court issued a text-only docket entry: “As stated on the record at the January 28, 2017 hearing, the respondents are to provide a list of individuals detained, pursuant to the January 27, 2017 Executive Order, to the petitioner’s counsel” (“the List Order”).
Since the Court issued that order, Respondents have provided Petitioners with statements that they are not currently detaining any individuals under the Order. See, e.g., Decl. of Todd A. Hoffman (ECF No. 66-2); Letters from Steven A. Platt to Muneer I. Ahmad, Pet’rs’ Exs. H, I (ECF No. 53-3 at 24, 26). Believing Respondents to be out of compliance with the List Order, Petitioners filed a motion to enforce it (ECF No. 53). The Court ordered Respondents to respond to certain portions of it (ECF No. 60).
ARGUMENT The Court has asked Respondents to address Petitioners’ request for: (1) a list of all people who were detained or subject to additional processing pursuant to the Executive Order; and (2) a list of all people removed pursuant to the Executive Order since the filing of the motion for class certification, with certain details of their removals. (ECF No. 60 at 3). Respondents address each in turn. I. The List Order Requires Respondents to Provide a List of All Individuals
Currently Detained by Respondents under the Executive Order The first issue is a list of individuals in detention. The List Order requires Respondents to provide a single list of all individuals that they are currently detaining on the basis of the
3

Case 1:17-cv-00480-CBA Document 68 Filed 02/10/17 Page 4 of 11 PageID #: 861
Executive Order. Petitioners, however, believe Respondents must provide them with a list of all people ever detained or subject to additional processing under the Executive Order. Mot. to Enforce 5 (ECF No. 53-1). They want the list updated “daily,” id. at 17, to satisfy their desire to “identify and communicate with” putative class members and to “monitor the government’s compliance,” id. at 9. Because the List Order contains so no requirements, the Court should reject Petitioners’ contrary and impractical reading.
A. “Detention” Does Not Include Ordinary Processing First, Petitioners believe the List Order’s reference to “detention” includes routine processing, including referrals to secondary inspection. But secondary inspection is not detention. CBP processes over a million people at U.S. ports every day.2 Every person who arrives in the United States is subject to inspection. See United States v. Ramsey, 431 U.S. 606, 619 (1977); United States v. Flores-Montano, 541 U.S. 149, 152 (2004). In particular, individuals seeking admission to the United States are subject to CBP inspection by law and carry the burden of demonstrating admissibility to the United States. 8 U.S.C. § 1225(a)(3); 8 C.F.R. § 235.1(f). Per standard procedure, CBP inspections may include “primary” and “secondary” inspections, but the distinction between “primary” and “secondary” is one of nomenclature—“secondary inspection is no less a matter of course and no less routine than the primary inspection.” United States v. Galloway, 316 F.3d 624, 629 (6th Cir. 2003). It is not a reasonable interpretation of “detention” to include every encounter that CBP has with every individual, including those applying for admission to the United States, where
2 U.S. Customs & Border Prot., On a Typical Day in Fiscal Year 2016, CBP . . ., https://www.cbp.gov/newsroom/stats/typical-day-fy2016 (last visited Feb. 10, 2017) (giving the figure of 1,069,266 passengers and pedestrians, including 326,723 at airports).
4

Case 1:17-cv-00480-CBA Document 68 Filed 02/10/17 Page 5 of 11 PageID #: 862
individuals are subject to some form of processing. Yet Petitioners provided no reasoned approach which would allow Respondents to determine what Petitioners instead mean by the term “detention.” This is particularly true given the broad authority of CBP to conduct inspections at the ports of entry for a variety of reasons unrelated to the Executive Order which Petitioners now challenge. See United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). Instead, coupled with their request to have “daily updated” lists, Petitioners demand Respondents to cull through a million arrivals every day to determine who is subject to the Executive Order, deem each one “detained” simply because of their processing, and provide Petitioners information about the ultimate disposition of that processing. The effort required by Petitioners’ reading of the List Order would overwhelm CBP and compromise the privacy interests of a significant percentage of individuals in this country. There is no justification for such an effort since Respondents are complying with the Court’s temporary restraining order (and Petitioners offer no evidence to the contrary).
The Court certainly did not mean for Respondents to process that much data for a list every single day. The Court said as much at the emergency motion hearing when it recognized its stay would not “prevent any sort of processing of these foreign nationals.” Tr. of Emergency Mot. Hr’g at 17:24–25 (ECF No. 17). The Court more generally noted the difficulty of compiling this list, asking the parties to “work it out.” Stay Hr’g Tr. 17:16–17, Jan. 28, 2017 (ECF No. 17) (“Well, why don’t you try to work it out?”). Given the numerous and fluid interactions CBP has daily with individuals, the best interpretation of “detention” is a bright line: detention pending removal or detention at an off-site detention facility. See 8 U.S.C. §§ 1225(b), 1226.
5

Case 1:17-cv-00480-CBA Document 68 Filed 02/10/17 Page 6 of 11 PageID #: 863
Petitioners cite the CBP Inspector’s Field Manual to define “detention,” arguing that the manual is “an official CBP publication” that defines detention as beginning “when the applicant is referred into secondary or waits for processing.” Mot. to Enforce 7 (ECF No. 53-1). The Inspector’s Field Manual is inapposite here. CBP has not used that manual as a source of information for passenger processing since April 2013 because it is outdated and no longer reflects current practices. Even if it were to be examined, the manual should not be relied upon for the legal definition of “detained” since it was written in colloquial terms for the officers in the field, not as a manual for legal doctrine. As the manual warns at the outset,
The [Field Manual] should be used in concert with several other references: the Immigration and Nationality Act (“INA” or “Act”), Title 8 of the Code of Federal Regulations (8 CFR), and official CBP directives, among others. The [Field Manual] is not intended to duplicate or replace any of them. Although initiated under the former Immigration and Naturalization Service, this manual is gradually being updated to address CBP’s policies and practices. U.S. Customs & Border Prot., Inspector’s Field Manual ch. 1 (2007), 2007 WL 7710805. Thus, the manual does not override the List Order’s use of “detention.” B. The List Order Directed Respondents to Provide a Single, Fixed List of Detainees Second, Petitioners think the list should encompass “all individuals who have been detained at any time.” Mot. to Enforce 17 (ECF No. 53-1). However, the List Order was not temporally open-ended. The Court told Respondents, “But can you provide at least a list of who is being detained? . . . . Get him a list of people that are detained.” Stay Hr’g Tr. 17:11–12, Jan. 28, 2017 (ECF No. 17). The Court did not tell Respondents to provide a list of people who “were” detained, or who “have been” detained, or “will be” detained, or “will have been” detained. Its focus was on a fixed moment in time. For the same reason, Petitioners’ extratextual belief that the List Order requires detainee lists to be updated “daily” is unfounded. Mot. to Enforce 17 (ECF No. 53-1).
6

Case 1:17-cv-00480-CBA Document 68 Filed 02/10/17 Page 7 of 11 PageID #: 864
The Court intended for Respondents to give Petitioners a snapshot of its Executive Order detentions, which vindicates the Court’s stated goal of preserving the status quo. Individuals subject to the Executive Order were not subject to detention or removal based on that Order before the Executive Order’s issuance. By providing Petitioners with a list of individuals detained based on the Executive Order at the earliest practical time, Respondents are demonstrating a return to that status quo: no individuals subject to the Executive Order are being detained or removed. And the Court’s temporary restraining order enjoins Respondents from removing certain individuals—information on past detentions does nothing to inform the Court as to whether Respondents are currently removing Executive Order-affected individuals. Petitioners’ proposed reading is unreasonably overbroad and unsupported by the Court’s orders.
Again, the Court acknowledged the difficulty of compiling this list by asking the parties to “work it out.” Stay Hr’g Tr. 17:16–17, Jan. 28, 2017 (ECF No. 17). This acknowledgement is why the List Order did not give Respondents a deadline to produce the list. It is also why the List Order does not, contrary to Petitioners’ repeated assertions, require Respondents to create and produce a “daily updated” list. Mot to Enforce 17 (ECF No. 53-1). Petitioners themselves noted that “the list of individuals held was likely to fluctuate.” Id. at 6. Given that over a million people arrive at U.S. ports every day, requiring Respondents to provide a one-time snapshot of who they were detaining under the Executive Order is the best interpretation of the List Order.
7

Case 1:17-cv-00480-CBA Document 68 Filed 02/10/17 Page 8 of 11 PageID #: 865
C. Voluntary Withdrawals of Admission, Even If Coerced as Alleged, Are Not Detentions
Third, Petitioners argue that “detention,” as used in the List Order, includes individuals who signed forms withdrawing their applications for admission, allegedly under coercion.3 Any individuals who might have withdrawn their applications were not placed in detention, but instead were permitted to depart the United States. See 8 U.S.C. § 1225(a)(4). Therefore, they are not properly included on a list of people in “detention” as the List Order uses that term.
II. The Court Did Not Order Respondents to Produce a List of People Removed under the Executive Order
Second, the Court asks Respondents to respond to Petitioners’ request for “a list of all people removed pursuant to the Executive Order since the filing of the motion for class certification, the countries to which they were removed, the flights on which they were removed, and the times at which they were removed.” (ECF No. 60 at 3). As explained above, the List Order concerns only people being detained, not people being removed. Nowhere did the Court order Respondents to provide such a list. In fact, Petitioners’ counsel asked the Court to issue such an order during the hearing: “If the government would provide a list of all the people and whether they’re going to release them or not, I think that would be the best thing.” Stay Hr’g Tr. 17:5–8, Jan. 28, 2017 (ECF No. 17). The Court rejected that request, and issued a narrower one: “But can you provide at least a list of who is being detained?” Id. 17:11–12 (emphasis added). Therefore, there is no basis for this aspect of Petitioners’ request.
3 Petitioners also claim Respondents are making a distinction between individuals affected by the Executive Order and those affected by its implementing regulations, seizing on a single mention in a hearing of the word “solely”. Mot. to Enforce 8 (ECF No. 53-1). Putting aside that Petitioners themselves have repeatedly used the word “solely” throughout this litigation to refer to their own claims in that context—see, e.g., Pet. at 2, 18 (ECF No. 1); Mot. for Class Certification ¶¶ 1, 15 (ECF No. 4); Emergency Mot. for Stay of Removal at 1 (ECF No. 6)— Respondents do not intend to make this distinction.
8

Case 1:17-cv-00480-CBA Document 68 Filed 02/10/17 Page 9 of 11 PageID #: 866
III. Respondents Have Complied with the List Order Those being the terms of the List Order, Respondents have complied with them. Because Respondents are not currently detaining individuals under the Executive Order, the list of detainees is a null set and there are no names to give Petitioners. The Court should deny Petitioners’ motion. IV. In the Alternative, the Court Should Recognize the Ambiguity in the List
Order and Clarify It to Conform to Respondents’ Reading Respondents have advanced, at the very least, a reasonable interpretation of the List Order. In the event the Court disagrees with Respondents’ interpretation, Respondents respectfully request the Court to refrain from ordering production in the manner Petitioners seek. This is not a class action right now. Petitioners have no need for any specific names since the Western District of Washington’s nationwide temporary restraining order of the Executive Order means these individuals can travel freely. See Washington v. Trump, No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 9, 2017). Should their Petition survive the motion to dismiss, Petitioners will have mechanisms for seeking this information in discovery. What the Court should not do is give Petitioners the authority, as they believe they have now, to be “monitor[s]” of “the government’s compliance.” Mot. to Enforce 9, 10 (ECF No. 53-1). At the very minimum, if the Court orders Respondents to create a list divulging any individual’s identity or disposition, Respondents ask the Court to enter an attorneys’-eyes-only protective order. See Fed. R. Civ. P. 26(c)(1). Such information, besides being highly personal, could cause significant harm to the individual if, for example, he or she is a refugee.
CONCLUSION Respondents have provided, as ordered, a list of people they were detaining as of at least February 7, 2017, under the January 27, 2017, Executive Order: a list of zero. As explained
9

Case 1:17-cv-00480-CBA Document 68 Filed 02/10/17 Page 10 of 11 PageID #: 867
above, Petitioners’ interpretation of the List Order is unreasonable and would do nothing more to preserve the status quo. Petitioners may pursue these issues if the case reaches discovery. The Court should deny the Motion to Enforce (ECF No. 53).

Dated: February 10, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director
GISELA A. WESTWATER Assistant Director
EREZ REUVENI Senior Litigation Counsel
SAMUEL P. GO Senior Litigation Counsel
By: s/ Steven A. Platt STEVEN A. PLATT Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 532-4074 Fax: (202) 305-7000 steven.a.platt@usdoj.gov
Counsel for Respondents

10

Case 1:17-cv-00480-CBA Document 68 Filed 02/10/17 Page 11 of 11 PageID #: 868 CERTIFICATE OF SERVICE
I hereby certify that on February 10, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Eastern District of New York by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
s/ Steven A. Platt STEVEN A. PLATT Trial Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section Counsel for Respondents
11

 </s> Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 1 of 38 PageID #: 1005

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI,
Petitioners,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of DBP; and JAMES T. MADDEN, New York Field Director, CBP,
Respondents.

Case No. 17 Civ. 480 (AMD) Date: February 15, 2017

BRIEF OF AMICI CURIAE NONGOVERNMENTAL ORGANIZATIONS AND INTERNATIONAL LAW SCHOLARS IN SUPPORT OF THE PLAINTIFFS

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 2 of 38 PageID #: 1006
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii INTEREST STATEMENT OF AMICI CURIAE ........................................................................... 1 SUMMARY OF ARGUMENT ...................................................................................................... 1 ARGUMENT .................................................................................................................................. 3
I. International Treaties and Customary International Law Are Relevant to the Interpretation of the Constitutional Provisions and Legislation Applicable in This Case............................................................................................................................. 3
II. The Executive Order Discriminates on the Basis of Religion in Violation of the Fifth Amendment Equal Protection Right and the Religious Freedom Restoration Act of 1993 ...................................................................................................... 6 A. Applicable Treaties and Customary International Law .................................................6 B. The Executive Order Is Inconsistent with U.S. Nondiscrimination Obligations on the Basis of Religion Under International Law...................................10 C. The Fifth Amendment and Religious Freedom Restoration Act of 1993 Should Be Interpreted in Light of U.S. Obligations Under International Human Rights Law ......................................................................................................11
III. The Executive Order Discriminates on the Basis of National Origin in Violation of the Fifth Amendment Equal Protection Clause and the Immigration and Nationality Act.................................................................................................................. 13 A. Applicable Treaties and Customary International Law ...............................................13 B. The Executive Order Is Inconsistent with U.S. Nondiscrimination Obligations on the Basis of National Origin Under International Law .......................14 C. The Fifth Amendment Equal Protection Duty and Immigration and Nationality Act Should Be Interpreted in Light of U.S. Obligations Under International Human Rights Law.................................................................................16
IV. The Due Process Clause of the Fifth Amendment, the Immigration and Nationality Act, the Administrative Procedures Act, and the Foreign Affairs Reform and Restructuring Act of 1998 Should Be Interpreted to Prohibit the Arbitrary Detention of Visa Holders and Exclusion of Refugees..................................... 17 A. Applicable Treaties and Customary International Law ...............................................17 B. The Executive Order Is Inconsistent with U.S. Obligations Under International Law Relating to Arbitrary Detention and Exclusion of Refugees .......................................................................................................................20 C. The Due Process Clause and Relevant Statutes Should Be Interpreted in Light of U.S. Obligations Under International Human Rights Law ............................22
CONCLUSION............................................................................................................................. 25 APPENDIX................................................................................................................................... 27
-ii-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 3 of 38 PageID #: 1007

TABLE OF AUTHORITIES

U.S. Cases

Page

Boumediene v. Bush, 553 U.S. 723 (2008) ....................................................................................12 F. Hoffmann-La Roche Ltd. v Empagran S.A., 542 U.S. 155 (2004) ..............................................5 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)................................................................5, 19 Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) ..............................................................................23 Johnson v. Eisentrager, 339 U.S. 763 (1950)................................................................................12 Lawrence v. Texas, 539 U.S. 558 (2003) .......................................................................................12 Matthews v. Diaz, 426 U.S. 67 (1976) ...........................................................................................23 Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804).........................................................5 Paquete Habana, 175 U.S. 677 (1900)............................................................................................5 Reno v. Flores, 507 U.S. 292 (1993) .............................................................................................23 Sale v. Haitian Centers Council, 509 U.S. 155 (1994)....................................................................5 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).............................................................................22 Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801) .................................................................................5 United States v. Salerno, 481 U.S. 739 (1987) ..............................................................................22 United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801) ....................................................5 United States v. Verdugo-Urquidez, 494 U.S. 259 (1994).............................................................12 Zadvydas v. Davis, 533 U.S. 678 (2001) .......................................................................................22

Constitution and Statutes

U.S. Constitution, art. II...................................................................................................................5 U.S. Constitution, art. VI .............................................................................................................3, 6 U.S. Constitution, amend. V .................................................................................................. passim

Title 5, U.S. Code: Section 706...............................................................................................................................24

Title 8, U.S. Code: Section 1101.......................................................................................................................16, 70 Section 1152.............................................................................................................................16 Section 1158.............................................................................................................................23 Section 1182.............................................................................................................................16 Section 1187.............................................................................................................................14 Section 1229.............................................................................................................................23 Section 1231.............................................................................................................................23

Title 42, U.S. Code: Section 2000bb-1 .....................................................................................................................13

-iii-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 4 of 38 PageID #: 1008
Title 50, U.S. Code: Sections 21-24..........................................................................................................................14
Legislative History
Congressional Record, Volume 138: S4781-01 ................................................................................................................................3, 6
Congressional Record, Volume 140: S7634-02 ..................................................................................................................................13
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 1990, Hearing Before the Comm. on Foreign Relations, U.S. Senate, 101st Cong. (1990), at 8.............................................................................................................4
Senate Comm. on Foreign Relations, Report on International Convention on the Elimination of All Forms of Racial Discrimination, S. Exec. Rep. No. 103-29, at 25 (1994) ....................................................................................................................................4
Sen. Exec. Rpt. 101-30 (1990).........................................................................................................3
Executive Orders
Executive Order 13,769: Protecting the Nation from Foreign Terrorist Entry into the United States (Jan. 27, 2017), at https://www.whitehouse.gov/the-pressoffice/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entryunited-states ..................................................................................................................... passim
Treaties
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, June 26, 1987, 1465 U.N.T.S. 113........................................................................8
Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 ....... 3, 18, 22-23 Protocol relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606
U.N.T.S. 267 ..............................................................................................................................3 International Convention on the Elimination of All Forms of Racial Discrimination,
Dec. 21, 1965, G.A. Res. 2106 (XX), Annex, 660 U.N.T.S. 195........................................7, 14 International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171
(1976) ............................................................................................................................... passim
International Decisions, Awards, and Communications
A v. Australia, U.N. Hum. Rts. Comm., Comm. No. 560/1993 (Apr. 30, 1997), U.N. Doc. CCPR/C/59/D/560/1993..................................................................................................18
Ahmadou Sadio Diallo Case (Rep. of Guin. v. Dem. Rep. of Congo), 2010 I.C.J. Rep. 639............................................................................................................................................17
-iv-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 5 of 38 PageID #: 1009
Haitian Center for Human Rights v. United States, Case 10.675, Inter-Am. Comm’n H.R., Rep. No. 51/96, para. 157, OEA/Ser.L./V/II.95, doc. 7 rev. at 550 (1997) ...................20
Report on Immigration in the United States: Detention and Due Process, Inter-Am. Comm’n. on Hum. Rts., OEA/Ser.L/V/II., Doc. 78/10 (Dec. 30, 2010) .................................19
Torres v. Fin, U.N. Hum. Rts. Comm, Comm. No. 291/1988 (Apr. 2, 1990), U.N. Doc. CCPR/C/38/D/291/1988 ..........................................................................................................18
International Declarations
American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX (1948), Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/I.4 rev. 13, at 13 (2010) ......................................................................................9
Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948) .........................................................................................................................................9
Other International Materials
Committee Against Torture Gen. Comment No. 2, U.N. Doc. CAT/C/GC/2 (2008)...........................................................19
Human Rights Committee Gen. Comment No. 15 (1986), U.N. Doc. HRI/GEN/1/Rev.1, at 18 (1994).............................9 Gen. Comment No. 18, U.N. Doc. HRI/GEN/1Rev.1 at 26 (1994) ................................7, 9, 15 Gen. Comment No. 35, U.N. Doc. CCPR/C/GC/35 (2014) .................................................. 7-8
State Reports—Convention Against Torture—United States of America, U.N. Doc. CAT/C/28/Add.5 (Feb. 9, 2000) ................................................................................................5
U.N. Econ. & Soc. Council, Report of the Working Group to the Economic and Social Council, Dec. 19, 1997, U.N. Doc. E/CN.4/1998/44...............................................................18
U.N. Human Rights Council, Report of the Working Group on Arbitrary Detention Dec. 24, 2012, U.N. Doc. A/HRC/22/44 .................................................................................18
U.N. Special Rapporteur on Torture, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, at 1416, paras. 38-43, Aug. 7, 2015, U.N. Doc. A/70/303 ..............................................................20
News Reports
David Brody, President Trump Says Persecuted Christians Will Be Given Priority as Refugees, CBN N., Jan. 27, 2017, at http://www1.cbn.com/content/brody-fileexclusive-president-trump-says-persecuted-christians-will-be-given-priority ........................11
Glenn Kessler, The Number of People Affected by Trump’s Travel Ban: About 90,000, WASH. POST, Jan. 30, 2017, at https://www.washingtonpost.com/news/factchecker/wp/2017/01/30/the-number-of-people-affected-by-trumps-travel-banabout-90000/?utm_term= .8c582fca9542 ................................................................................10
Evan Perez, Pamela Brown & Kevin Liptak, Inside the Confusion of the Trump Executive Order and Travel Ban, CNN, Jan. 28, 2017, at http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/ .......................................21
-v-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 6 of 38 PageID #: 1010

Maquita Peters & Colin Dwyer, Federal Judge Stays Deportations, Blocking Part of Trump’s Immigration Order, NPR, Jan. 28, 2017, at http://www.npr.org/sections/thetwo-way/2017/01/28/512158238/arrivals-to-u-sblocked-and-detained-as-trumps-immigration-freeze-sets-in ..................................................21
Rebecca Savransky, Giuliani: Trump asked me how to do a Muslim ban ‘legally,’ THE HILL, Jan. 29, 2017, at http://thehill.com/homenews/administration/ 316726giuliani-trump-asked-me-how-to-do-a-muslim-ban-legally ....................................................11
Betsy Woodruff, White House Lowballs Impact of Trump Ban, THE DAILY BEAST, Jan. 30, 2017, at http://www.thedailybeast.com/articles/2017/01/30/white-houselowballs-impact-of-trump-ban.html. ........................................................................................21

Other Sources

Central Intelligence Agency, World Factbook, at https://www.cia.gov/

library/publications/the-world-factbook/geos/xx.html ............................................................10

Aoife Duffy, Expulsion to Face Torture? Non-refoulement in International Law, 20

INT’L J. REFUGEE L. 373 (2008) ..............................................................................................19

Joan Fitzpatrick, The International Dimension of U.S. Refugee Law, 15 BERK. J. INT’L

L. 1 (1997) ...............................................................................................................................20

Bill Frelick, “Abundantly Clear”: Refoulement, 19 GEO. IMMIGR. L.J. 245 (2004) .....................20

Alexander Hamilton, Pacificus No. 1 (June 29, 1793), reprinted in 15 THE PAPERS OF

ALEXANDER HAMILTON 33 (Harold C. Syrett ed. 1969)............................................................6

Hurst Hannum, The Status of the Universal Declaration of Human Rights in National

and International Law, 25 GA. J. INT’L & COM. L. 287 (1995/96) ......................................9, 19

Joint Declaration of National Security Officials, Washington v. Trump, No. 17-35105

(9th Cir. 2017), available at https://www.aclu.org/legal-document/state-

washington-v-trump-declaration-national-security-officials ...................................................22

Thomas David Jones, International Decision: Sale v. Haitian Centers Council, Inc.,

88 AM. J. INT’L L. 114 (1994) ..................................................................................................20

Statement by NSC Spokesperson Bernadette Meehan on the U.S. Presentation to the

Committee

Against

Torture,

Nov.

12,

2014,

at

https://obamawhitehouse.archives.gov/the-press-office/2014/11/12/statement-

nsc-spokesperson-bernadette-meehan-us-presentation-committee-a. .....................................20

Theodor Meron, Extraterritoriality of Human Rights Treaties, 89 AM. J. INT’L L. 78

(1995) .......................................................................................................................................20

Alex Nowrasteh, Cato Institute, Terrorism and Immigration: A Risk Analysis, No. 798,

Sept. 13, 2016, at https://object.cato.org/sites/cato.org/files/pubs/ pdf/pa798_2.pdf

............................................................................................................................................14, 22

Alex Nowrasteh, Cato Institute, Guide to Trump’s Executive Order to Limit Migration

for “National Security” Reasons, Jan. 26, 2017, at https://www.cato.org/blog

guide-trumps-executive-order-limit-migration-national-security-reasons. .............................15

Open Letter from International Lawyers to the peoples of Europe, the European Union,

EU Member States and their representatives on the Justice and Home Affairs

Council (Sept. 28, 2015), at http://ohrh.law.ox.ac.uk/wordpress/wp-

content/uploads/here.pdf ..........................................................................................................20

-vi-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 7 of 38 PageID #: 1011 Jordan J. Paust, In Their Own Words: Affirmations of the Founders, Framers, and
Early Judiciary Concerning the Binding Nature of the Customary Law of Nations, 14 U.C. DAVIS L. REV. 205, 240-45 (2008)...............................................................................6 Edward J. Ramotowski, Dep’y Assist. Sec’y of State, U.S. Dep’t of State, Memorandum of Jan. 27, 2017, available at http://www.politico.com/ f/?id=00000159-f6bd-d173-a959-ffff671a0001 ......................................................................20 Restatement (Third) of the Foreign Relations Law of the United States .........................................5 Donald J. Trump Statement on Preventing Muslim Immigration, Dec. 7, 2015, at https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-onpreventing-muslim-immigration ..............................................................................................11 Donald J. Trump, Politico: Trump Is Doing ‘Exactly’ What He Promised on the Campaign Trail, Jan. 28, 2017, at https://www.donaldjtrump.com/ media/politicotrump-is-doing-exactly-what-he-promised-on-the-campaign-trail ..........................................11
-vii-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 8 of 38 PageID #: 1012
INTEREST STATEMENT OF AMICI CURIAE
The international law scholars specializing in public international law and international human rights law whose views are represented in this amicus brief are members of the International Human Rights Committee of the International Law Association, American Branch and the Human Rights Interest Group of the American Society of International Law,1 as well as university professors and practicing lawyers with expertise in these subjects. The nongovernmental organizations whose views are represented in this brief have expertise in civil rights law, immigration law, or international human rights law. They submit this brief to vindicate the public interest in ensuring a proper understanding and application of the international human rights law relevant to this case. A list of the nongovernmental organizations and individual scholars is set out in the Appendix.
The undersigned are the sole authors, are not parties in this case, and have received no compensation from any party to this case. Plaintiffs have consented to the filing of this brief, and defendants have stated that they “neither consent to, nor oppose” it.2
SUMMARY OF ARGUMENT
International law is part of U.S. law and must be faithfully executed by the President and enforced by U.S. courts except when clearly inconsistent with the U.S. Constitution or legislation adopted by Congress. The United States is a party to and bound by several international human rights treaties relevant to the legality of Executive Order 13,769 of January 27, 2017 (“EO”). Sections 3 and 5 of the EO violates the duties of (1) nondiscrimination on the basis of religion and (2) national origin, (3) observing due process of law and protecting from arbitrary detention all
1 This brief represents the opinion of the Committee and Interest Group members, but not necessarily that of the American Society of International Law, the International Law Association (“ILA”), or the ILA American Branch.
2 Email from Steven A. Platt, Trial Attorney, U.S. Dep’t of Just., to Aaron X. Fellmeth (Feb. 6, 2017).
-1-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 9 of 38 PageID #: 1013 persons within U.S. jurisdiction, and (4) refraining from excluding or expelling refugees without due consideration of their circumstances, their status, or the potentially dire consequences to them. U.S. obligations under international human rights law reinforce constructions of the Fifth Amendment to the U.S. Constitution that prohibit discrimination based on religion or national origin against U.S. visa holders, U.S. visa applicants, and refugees. Moreover, the Fifth Amendment prohibits the arbitrary detention and arbitrary exclusion of these same groups without due process of law once under U.S. jurisdiction, particularly when that provision is read consistently with U.S. obligations under international law. The Religious Freedom Restoration Act, the Immigration and Nationality Act, the Administrative Procedure Act, and the Foreign Affairs Reform and Restructuring Act of 1998 should likewise be read in harmony with these obligations, which reinforce the conclusion that the statutes also forbid discrimination and denials of due process of the type mandated by sections 3 and 5 of the EO.
-2-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 10 of 38 PageID #: 1014
ARGUMENT
I. International Treaties and Customary International Law Are Relevant to the Interpretation of the Constitutional Provisions and Legislation Applicable in This Case
This brief will explain the relevant provisions of international human rights law binding on the United States and applicable to the facts and claims before the Court regarding Executive Order 13,769: Protecting the Nation from Foreign Terrorist Entry Into the United States of January 27, 2017 (hereinafter, the “EO”). International law is relevant to this case because the Supremacy Clause of the U.S. Constitution makes treaties part of U.S. law. Customary international law is also part of U.S. law under Supreme Court precedent and enforceable by U.S. courts.
Under the Supremacy Clause of the Constitution, “treaties made . . . under the authority of the United States, shall be the supreme law of the land, and judges of every state shall be bound thereby.”3 Although the Constitution does not require legislation prior to treaties taking legal effect, the Supreme Court distinguishes between self-executing and non-self-executing treaties. The Senate or the President have declared that all major human rights treaties to which the United States is a party are non-self-executing,4 except the applicable provisions of the Refugee Convention, which are self-executing.5 Regardless of the accuracy of this interpretation of the treaties, by ratifying them, the United States bound itself by the treaties’ own terms to provide judicial or other remedies for violations of treaty obligations.6 Thus, even if the treaty provisions
3 U.S. Const. art. VI, cl. 2. 4 See, e.g., 138 Cong. Rec. S4781-01 (daily ed. Apr. 2, 1992) (International Covenant on Civil and Political Rights); Sen. Exec. Rpt. 101-30, Resolution of Advice and Consent to Ratification (1990), at II(2) (Convention Against Torture). 5 Convention Relating to the Status of Refugees art. 33, July 28, 1951, 189 U.N.T.S. 137 [hereinafter “1951 Refugee Convention”]. Although the United States did not ratify the Convention itself, it acceded to the 1967 Protocol, by which it became bound by articles 2 through 34 of the 1951 Convention. Protocol relating to the Status of Refugees art. 1, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267. 6 See, e.g., International Covenant on Civil and Political Rights art. 2(2), Dec. 19, 1966, 999 U.N.T.S. 171 (1976) [hereinafter “CCPR”].
-3-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 11 of 38 PageID #: 1015
themselves are interpreted as not directly enforceable in U.S. courts, the rights they grant must be reflected in any interpretation of the Constitution, existing law, or implementing legislation.
The human rights treaties applicable in this case contain rules binding on U.S. courts for another reason. In those cases in which Congress has not enacted implementing legislation, the U.S. government has uniformly taken the position that the U.S. Constitution and legislation already put the United States in compliance with the human rights treaties to which it is a party.7 For example, when submitting human rights treaties to the Senate for its advice and consent, both Presidents George W. Bush and William Clinton assured the Senate that the United States could and would fulfill its treaty commitments by applying federal constitutional and statutory law. During Senate hearings on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”),8 the State Department Legal Advisor told the Senate: “Any public official in the United States, at any level of government, who inflicts torture . . . would be subject to an effective system of control and punishment in the U.S. legal system.”9 Similarly, with respect to the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”),10 the Clinton Administration told the Senate: “As was the case with the prior treaties, existing U.S. law provides extensive protections and remedies sufficient to satisfy the requirements of the present Convention.”11 The Senate relied on these assurances as a basis for its consent to ratification. Courts construe federal constitutional and statutory law to be consistent with the requirements of human rights treaties because the Senate consented to ratification on the basis of executive branch assurances that the United States would fulfill its treaty commitments in the application of existing federal constitutional and statutory law.
7 See, e.g., U.N. Doc. CAT/C/28/Add.5, paras. 58-60 (“Where domestic law already makes adequate provision for the requirements of the treaty and is sufficient to enable the United States to meet its international obligations, the United States does not generally believe it necessary to adopt implementing legislation.”).
8 June 26, 1987, 1465 U.N.T.S. 113. 9 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, 1990, Hearing Before the Comm. on Foreign Relations, U.S. Senate, 101st Cong. (1990), at 8. 10 Dec. 21, 1965, G.A. Res. 2106 (XX), Annex, 660 U.N.T.S. 195. 11 Senate Comm. on Foreign Relations, Report on International Convention on the Elimination of All Forms of Racial Discrimination, S. Exec. Rep. No. 103-29, at 25-26 (1994).
-4-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 12 of 38 PageID #: 1016
This conclusion comports with a core principle of statutory construction announced by the Supreme Court in Murray v. The Schooner Charming Betsy: “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”12 That doctrine has been consistently and recently reaffirmed by the Supreme Court,13 and, in Filartiga v. Pena-Irala, the U.S. Court of Appeals for the Second Circuit confirmed that merely because a treaty is not self-executing does not imply that the rule it establishes is irrelevant, if the rule is embodied in customary international law.14 As the U.S. government acknowledged to the United Nations Committee Against Torture: “Even where a treaty is ‘non-self-executing,’ courts may nonetheless take notice of the obligations of the United States thereunder in an appropriate case and may refer to the principles and objectives thereof, as well as to the stated policy reasons for ratification.”15 This is particularly important because both the Executive and Legislative Branches rely on the courts to uphold their interpretations of U.S. law as consistent with U.S. obligations under treaties and customary international law.
Customary international law is directly enforceable in U.S. courts without implementing legislation.16 In The Paquete Habana, the Supreme Court held that customary international law “is part of our law” and directly enforceable in courts when no conflicting treaty, legislative act, or judicial decision controls.17 As discussed below, several of the human rights treaty rules applicable in this case are also rules of customary international law.
Moreover, it is not only U.S. courts that must apply treaties and customary international law as law of the United States. The President is bound faithfully to execute the law under Article II, Section 3 of the Constitution.18 Because Article VI of the Constitution makes treaties the supreme law of the land, the President is constitutionally obligated to comply with U.S. treaty obligations as well as with customary international law. This was apparently the intent of the
12 6 U.S. (2 Cranch) 64, 118 (1804); accord Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801).
13 See, e.g., F. Hoffmann-La Roche Ltd. v Empagran S.A., 542 U.S. 155, 164 (2004). 14 630 F.2d 876, 881-85 (2d Cir. 1980). 15 State Reports—Convention Against Torture—U.S.A., U.N. Doc. CAT/C/28/Add.5, para. 57 (Feb. 9, 2000), citing Sale v. Haitian Ctrs. Council, 509 U.S. 155 (1994). 16 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 111(3). 17 175 U.S. 677, 700 (1900). 18 U.S. CONST. art. II, sec. 3.
-5-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 13 of 38 PageID #: 1017
Framers.19 Courts therefore have a duty to restrain federal executive action that conflicts with a duly ratified treaty. As the Supreme Court wrote in ordering the President to restore a French merchant ship to its owner pursuant to a treaty obligation: “The constitution of the United States declares a treaty to be the supreme law of the land. Of consequence its obligation on the courts of the United States must be admitted.”20
Even if the President were not directly bound by international law, however, he is still obligated to comply with the requirements of the Constitution itself and all applicable legislation enacted by Congress within its authority. Because these statutes must be interpreted in a manner consistent with international law whenever possible, the President must comply with any international law that is consistent with applicable legislation.
In the following sections, we will explain the international law treaties and customary rules relevant to interpreting U.S. law in evaluating the constitutionality and legality of the EO.
II. The Executive Order Discriminates on the Basis of Religion in Violation of the Fifth Amendment Equal Protection Right and the Religious Freedom Restoration Act of 1993
A. Applicable Treaties and Customary International Law
The United States has been bound by the International Covenant on Civil and Political Rights (“CCPR”) since U.S. ratification of the treaty in 1992.21 Article 2 of the CCPR states in relevant part:
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
19 Alexander Hamilton, Pacificus No. 1 (June 29, 1793), reprinted in 15 THE PAPERS OF ALEXANDER HAMILTON 33, 33-43 (Harold C. Syrett ed. 1969). See generally Jordan J. Paust, In Their Own Words: Affirmations of the Founders, Framers, and Early Judiciary Concerning the Binding Nature of the Customary Law of Nations, 14 U.C. DAVIS L. REV. 205, 240-45 (2008).
20 United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 109 (1801). 21 138 Cong. Rec. S4781-01 (daily ed., Apr. 2, 1992).
-6-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 14 of 38 PageID #: 1018
. . . 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.22
The United Nations Human Rights Committee (“HRC”) is charged by the CCPR with monitoring implementation by state parties to the covenant and issuing guidance on its proper interpretation. The HRC interprets article 2 to prohibit “any distinction, exclusion, restriction or preference which is based on” a prohibited ground, and which has “the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing.”23
The substantive rights guaranteed by the CCPR, which must be protected without discrimination based on religion or national origin under article 2, bear directly on the conformity of the EO with U.S. obligations under international law. CCPR article 9 guarantees the right to freedom from arrest or detention except “on such grounds and in accordance with such procedure as are established by law.” Furthermore, anyone deprived of liberty by arrest or detention “shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”24 The HRC has clarified that these provisions of article 9 encompass detention of all persons, not excluding non-citizen refugees and asylum seekers,25 for reasons of immigration control.
The HRC has also clarified that detentions may be “arbitrary” within the meaning of article 9 despite statutory authorization:
22 CCPR, supra note 6, art. 2 (emphasis added). 23 Human Rights Committee, General Comment No. 18, para. 6, U.N. Doc. HRI/GEN/1Rev.1 at 26 (1994). 24 CCPR, supra note 6, art. 9. 25 Human Rights Committee, General Comment No. 35, para. 3, U.N. Doc. CCPR/C/GC/35 (2014).
-7-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 15 of 38 PageID #: 1019
An arrest or detention may be authorized by domestic law and nonetheless be arbitrary. The notion of “arbitrariness” is not to be equated with “against the law,” but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.26
In the context of immigration detention, the HRC has noted specifically that detention regulations must be reasonable, necessary, and proportionate to the legitimate goals of the state’s immigration policies:
Asylum seekers who unlawfully enter a State party’s territory may be detained for a brief initial period in order to document their entry, record their claims and determine their identity if it is in doubt. To detain them further while their claims are being resolved would be arbitrary in the absence of particular reasons specific to the individual, such as an individualized likelihood of absconding, a danger of crimes against others or a risk of acts against national security. The decision must consider relevant factors case by case and not be based on a mandatory rule for a broad category; must take into account less invasive means of achieving the same ends, such as reporting obligations, sureties or other conditions to prevent absconding; and must be subject to periodic re-evaluation and judicial review. . . .27
The CCPR establishes in article 13 that a non-citizen lawfully in a state’s territory may be expelled “only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”28
Finally, article 26 of the CCPR prohibits discrimination in any government measure, regardless of whether the measure violates a Covenant right:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against
26 Id. para. 12. 27 Id. para. 18 (emphasis added) (citations omitted). 28 CCPR, supra note 6, art. 13.
-8-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 16 of 38 PageID #: 1020
discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.29
As interpreted by the HRC and consistent with its wording, this provision “prohibits discrimination in law or fact in any field regulated” by the government.30
The nondiscrimination provisions of the CCPR are also reflected in customary international law binding on the United States, forming part of U.S. law unless contrary to the Constitution or a statute. The Universal Declaration of Human Rights, which the United States approved in 1948, mandates nondiscrimination in religion and national origin, as well as equal protection of the law, and it categorically prohibits arbitrary detention.31 The American Declaration of the Rights and Duties of Man, which the United States approved when it signed and ratified the Charter of the Organization of American States the same year, has similar provisions.32 These nondiscrimination principles and the prohibition on arbitrary detention have become sufficiently widespread and accepted by the international community that they have entered into customary international law in the present day.33
CCPR article 2, taken in combination with articles 9 and 13, forbids the state to discriminate based on religion in detaining any visa holder, immigration applicant or refugee within the state’s jurisdiction; in determining their status; and in expelling them from the country. These provisions apply to non-citizens and citizens alike,34 and they specifically forbid wholesale arbitrary expulsion of refugees based on religion.35 In addition, CCPR article 26 provides an independent basis for prohibiting discrimination in immigration policies based on religion. Notably, unlike CCPR article 2, the equal protection provisions of CCPR article 26 apply to
29 CCPR, supra note 6, art. 26 (emphasis added). 30 Human Rights Committee, General Comment No. 18, supra note 23, para. 12. 31 Universal Declaration of Human Rights, arts. 2, 7, 9, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948). 32 Id. arts. 17, 25, 27, O.A.S. Res. XXX (1948), Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/I.4 rev. 13, at 13 (2010). 33 See Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 GA. J. INT’L & COMP. L. 287, 342, 345-46 (1995/96). 34 Human Rights Committee, General Comment No. 15, paras. 1-2, 5 (1986), U.N. Doc. HRI/GEN/1/Rev.1, at 18 (1994). 35 Id. para. 10.
-9-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 17 of 38 PageID #: 1021
nonresident aliens as well as citizens and residents. Article 26 lacks article 2’s limitation to “all individuals within its territory and subject to its jurisdiction.”
B. The Executive Order Is Inconsistent with U.S. Nondiscrimination Obligations on the Basis of Religion Under International Law
The EO ostensibly pursues the legitimate purpose of preventing the immigration of persons with an intention to commit acts of terrorism in U.S. territory. Some provisions of the EO appear to be designed with this end in view and are consonant with international human rights law. However, sections 3 and 5 of the EO are not reasonable and proportionate measures for protecting national security, and they constitute arbitrary discrimination in violation of the CCPR.
Nowhere in the EO does the President exclude all Muslims from the United States. However, both the intent and effect of the EO are to discriminate against Muslims in U.S. immigration policy. Section 3(c) of the EO categorically suspends immigration from seven specified countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Every one of these countries has a population that is overwhelmingly Muslim,36 and the EO does not suspend immigration from any country with non-Muslim majorities. Moreover, Section 5(b) of the EO states that, when and if refugee resettlement is resumed, individuals who are members of a “religious minority” in their country of origin will be given preference, and section 5(e) prioritizes “national interest” exceptions from the ban based on religious minority status. Approximately 90,000 visa holders will be affected by the EO’s suspension.37
Although discrimination “in effect” violates U.S. human rights obligations under international law, religious discrimination is not merely an incidental effect of the EO. Religious discrimination is also its plain intent. During his presidential campaign, Donald J. Trump called
36 The following are the percentages of the populations of each country that are Muslim: Iran 99.4%; Iraq 99%; Libya 96.6%; Somalia unknown (but the Transitional Federal Charter proclaims Islam as the state religion); Sudan unknown (but a large majority is Muslim); Syria 87%; and Yemen 99.1%. See Central Intelligence Agency, World Factbook, at https://www.cia.gov/library/publications/the-world-factbook/geos/xx.html.
37 Glenn Kessler, The Number of People Affected by Trump’s Travel Ban: About 90,000, WASH. POST, Jan. 30, 2017, at https://www.washingtonpost.com/news/factchecker/wp/2017/01/30/the-number-of-people-affected-by-trumps-travel-ban-about90000/?utm_term=.8c582fca9542.
-10-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 18 of 38 PageID #: 1022
repeatedly for discrimination against Muslims ipsis verbis. For example, on December 7, 2015, the Trump campaign released an announcement on “preventing Muslim immigration” that called for “a total and complete shutdown of Muslims entering the United States.”38 Trump’s own campaign staff confirmed that a ban specifically directed at Muslims was his intent.39 That campaign position was still posted on his Web site when this brief was filed. On January 28, 2017, Trump’s Web site posted a summary of an editorial stating that he is doing “’exactly’ what he promised” during his campaign.40 On the same day he signed the EO, Trump told an interviewer that he will be treating Christian refugees from Syria as a “priority.”41 The EO’s intent to discriminate against Muslims is plain.
C. The Fifth Amendment and Religious Freedom Restoration Act of 1993 Should Be Interpreted in Light of U.S. Obligations Under International Human Rights Law
Even if the President were not directly constrained by treaties binding on the United States under international law, under the Charming Betsy doctrine, the court should interpret the applicable provisions of U.S. law in a manner consistent with international human rights law. This is not only easy to do, it is inevitable, as the applicable domestic laws—the Fifth Amendment to the U.S. Constitution and the Religious Freedom Restoration Act—both reflect similar human rights concerns as the CCPR.
The Fifth Amendment to the U.S. Constitution uses the same words as the CCPR; both forbid government discrimination using the term “no person” as the subject. Neither uses the
38 Donald J. Trump Statement on Preventing Muslim Immigration, Dec. 7, 2015, at https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslimimmigration (visited Feb. 15, 2017).
39 See Rebecca Savransky, Giuliani: Trump asked me how to do a Muslim ban ‘legally,’ THE HILL, Jan. 29, 2017, at http://thehill.com/homenews/administration/316726-giuliani-trumpasked-me-how-to-do-a-muslim-ban-legally.
40 Donald J. Trump, Politico: Trump Is Doing ‘Exactly’ What He Promised on the Campaign Trail, Jan. 28, 2017, at https://www.donaldjtrump.com/media/politico-trump-is-doingexactly-what-he-promised-on-the-campaign-trail.
41 David Brody, President Trump Says Persecuted Christians Will Be Given Priority as Refugees, CBN N., Jan. 27, 2017, at http://www1.cbn.com/content/brody-file-exclusive-presidenttrump-says-persecuted-christians-will-be-given-priority (visited Feb. 15, 2017).
-11-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 19 of 38 PageID #: 1023
words “no citizen” or “no resident.” “No person” is the broadest possible language.42 Non-citizen refugees and immigration applicants are legal persons within the meaning of the Constitution, as well as under international law as implemented in the United States.43 Therefore, the plain reading of the Fifth Amendment grants them due process rights while, at a minimum, they are within the jurisdiction or authority of the U.S. government. The same applies to equal protection rights.44 This is the interpretation most consistent with the CCPR’s nondiscrimination provisions.
It would also be inconsistent with international human rights law and a plain reading of the Fifth Amendment to allow religious discrimination in immigration policy against nonresident aliens outside the territory or jurisdiction of the United States. The Court need not resolve now whether the Fifth Amendment accords the full range of due process rights to nonresident aliens who do not currently hold a valid U.S. visa. However, amici interpret the Fifth Amendment equal protection right to prohibit arbitrary discrimination against such persons on the basis of religion. The U.S. government has no more power to proclaim arbitrarily that it will henceforth give priority to immigration applications from Christians or Zoroastrians than it does to discriminate against non-Christian U.S. resident aliens. Although the Supreme Court has questioned due process protection of nonresident aliens outside the United States,45 it has never squarely confronted the issue of whether Congress or the President may freely discriminate based on religion in its immigration policy in this context. Further, more recent Supreme Court precedent supports the notion that the Due Process Clause reaches farther than its previous decisions might otherwise seem to suggest.46 In light of U.S. obligations under international human rights law and the plain wording of the Fifth Amendment, amici believe that such discrimination is unconstitutional.
42 Cf. United States v. Verdugo-Urquidez, 494 U.S. 259, 265-66 (1994) (The Fourth Amendment, “by contrast with the Fifth . . . Amendment[], extends its reach only to ‘the people’; . . . [it] contrasts with the word ‘person’ . . . used in the Fifth . . . Amendment.”).
43 See CCPR, supra note 6, art. 16. 44 See Lawrence v. Texas, 539 U.S. 558, 575 (2003) (“Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.”). 45 See, e.g., Johson v. Eisentrager, 339 U.S. 763 (1950). 46 See Boumediene v. Bush, 553 U.S. 723, 758-63 (2008) (rejecting formalistic and categorical limits on the extraterritorial application of constitutional rights; stating that whether a particular right applies extraterritorially depends on a functional determination whether its application would be impracticable or anomalous under the circumstances).
-12-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 20 of 38 PageID #: 1024
Such discrimination also violates the Religious Freedom Restoration Act of 1993 (“RFRA”).47 That statute prohibits the “Government” from substantially burdening “a person’s” exercise of religion unless the government measure furthers a “compelling government interest” using “the least restrictive means of furthering” that interest.48 The RFRA does not define “person,” but in light of U.S. obligations under international human rights law and their applicability to statutory interpretation under The Charming Betsy doctrine, that term should be construed as broadly as possible to encompass U.S. citizens, resident aliens, and nonresident alien visa applicants as well. Moreover, by focusing on the obligations of the government rather than the rights of individuals, the RFRA appears more concerned with the nature of governmental action than the persons affected by it. Consequently, to the extent that a discriminatory immigration policy burdens the exercise of religion in the United States, it violates the RFRA.
III. The Executive Order Discriminates on the Basis of National Origin in Violation of the Fifth Amendment Equal Protection Clause and the Immigration and Nationality Act
A. Applicable Treaties and Customary International Law
The analysis in the preceding section, relating to the religious nondiscrimination provisions of the CCPR binding on the United States, applies mutatis mutandis in the case of discrimination based on national origin. As in the preceding analysis, the EO violates U.S. obligations under CCPR articles 2, 9, 13, and 26 to the extent that it discriminates based on religion, in either intent or effect, in immigration and detention policy and decisions.
In addition, the United States has been a party to the CERD since 1994.49 Under CERD, each state party commits to refraining from and prohibiting all forms of racial discrimination, and each undertakes “to engage in no act or practice of racial discrimination . . . and to ensure that all public authorities and public institutions, national or local, shall act in conformity with this obligation.”50 CERD specifically defines “racial discrimination” to include distinctions and
47 Pub. L. 103-141, 107 Stat. 1488 (1993) (codified as amended at 42 U.S.C. ch. 21B). 48 42 U.S.C. § 2000bb-1. 49 See 140 Cong. Rec. S7634-02 (daily ed., June 24, 1994). 50 Id. art. 2(1)(a).
-13-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 21 of 38 PageID #: 1025
restrictions based on national origin.51 With regard to immigration practices, CERD makes clear that states are free to adopt only such “nationality, citizenship or naturalization” policies that “do not discriminate against any particular nationality.”52 Like the nondiscrimination provisions of CCPR article 26, CERD article 2 does not limit its application to citizens or resident non-citizens; it applies to state immigration policies and practices generally.
Collectively, these treaties prohibit states from discriminating based on national origin against citizens, resident aliens, and nonresident aliens alike.
B. The Executive Order Is Inconsistent with U.S. Nondiscrimination Obligations on the Basis of National Origin Under International Law
Unlike religious discrimination, which is implicit in the EO, national origin discrimination is explicit in the EO. The ostensible basis for this discrimination is that the suspended countries are known to sponsor terrorism or are areas in which heightened terrorist activity is occurring.53 There may be circumstances under which human rights obligations would permit distinctions on the basis of national origin, such as during a state of war.54 However, no such circumstances exist today. Instead, the EO adopts irrational and greatly disproportionate means to achieve its stated goal.
The EO presents no evidence that refugees, visa holders, and visa applicants from the listed seven countries carry a significantly higher risk of engaging in terrorist acts than those from any other country. In fact, the available evidence is contrary. Nationals of the seven banned countries have killed zero persons in terrorist attacks in the United States since 1975.55 Indeed, according to a thorough Cato Institute study, the annual chance of being murdered in the United States by someone other than a foreign-born terrorist is 252.9 times greater than the chance of being
51 Id. art 1(1). 52 Id. art. 1(3). 53 Cf. 8 U.S.C. § 1187(a)(12) . 54 U.S. law dating to the nation’s founding, for example, provides for such a limited exception in authorizing the detention and removal of enemy aliens, defined specifically as citizens, residents, or subjects of nations or governments with which the United States is at war. See 50 U.S.C. §§ 21-24. That exception is inapplicable here. 55 Alex Nowrasteh, Cato Institute, Terrorism and Immigration: A Risk Analysis, No. 798, Sept. 13, 2016, at 7-15, at https://object.cato.org/sites/cato.org/files/pubs/pdf/pa798_2.pdf.
-14-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 22 of 38 PageID #: 1026
murdered by a foreign-born terrorist.56 A ban on entry of citizens from countries without any history of disproportionate U.S. terrorism could hardly be less reasonable. Moreover, the U.S. government has imposed no ban on visas from countries such as Saudi Arabia, the United Arab Emirates, and Egypt, whose immigrants (albeit exceedingly few) have actually committed terrorist acts on U.S. territory resulting in the deaths of U.S. citizens.57 Differentiating visa holders, visa applicants, and refugees from these states is therefore not a “reasonable and objective” means of achieving national security.58 There is no possible rational basis for discriminating against visa applicants or holders based on country of origin in general, and of the countries chosen in the EO in particular.
Moreover, even if (counterfactually) the rate of terrorism by refugees and visa holders were statistically higher in the seven countries, the government has presented no evidence that the risk of terrorist acts from non-citizens from those countries presents such a threat that immediate and drastically discriminatory action is necessary or proportionate. In effect, the EO presumes that every visa applicant or holder from the seven countries is a terrorist, based on their country of origin. By the same logic, if adult men have a much higher chance than adult women of engaging in terrorist plots, it would be rational to presume men to be terrorists and issue a blanket denial of visas to males.
In short, the EO is irrational and unreasonable in using country of origin as a proxy for unfitness to visit or reside in the United States. Contrary to the requirements of the CCPR and CERD, the EO gives no consideration to the individual circumstances of the visa holder, applicant, or refugee. The order was so rushed, and its implementation so chaotic, that arbitrariness was virtually guaranteed. By its terms, the EO applies equally to infants; to non-citizens who have rendered loyal service to the U.S. government; and to lawful permanent residents who have lived in the United States for thirty years, know no other life, and have already been carefully vetted by the U.S. government. Although the EO authorizes the Secretary of State and Secretary of Homeland Security to issue exceptions on a case-by-case basis in article 3(g), it gives no guidance
56 Id. at 2. 57 Id. at 7-15; Alex Nowrasteh, Cato Institute, Guide to Trump’s Executive Order to Limit Migration for “National Security” Reasons, Jan. 26, 2017, at https://www.cato.org/blog/guidetrumps-executive-order-limit-migration-national-security-reasons. 58 Human Rights Committee, General Comment No. 18, supra note 23, para. 13.
-15-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 23 of 38 PageID #: 1027
on the factors to be used in assessing the “national interest.” Wholesale discrimination cannot be excused by authorizing individual, discretionary exceptions to the rule on vague grounds.
C. The Fifth Amendment Equal Protection Duty and Immigration and Nationality Act Should Be Interpreted in Light of U.S. Obligations Under International Human Rights Law
As discussed above, the equal protection duty of the Fifth Amendment to the Constitution is best interpreted in a manner consistent with U.S. obligations under international human rights law to protect all individuals within U.S. territory or under U.S. jurisdiction, as well as nonresident alien visa applicants. Consequently, the Fifth Amendment’s equal protection guarnatee should be construed to prohibit the EO’s discrimination against both resident and nonresident aliens based on national origin.
For similar reasons, the Immigration and Nationality Act (“INA”)59 should be construed to invalidate the EO. The INA provides that, with exceptions not relevant here, “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s . . . nationality, place of birth, or place of residence.”60 The language could hardly be clearer. The President is forbidden to order immigration authorities to use nationality as a factor in issuing immigrant visas, which is precisely what the EO directs. The plain language of the INA is not limited to applicants who are current immigrant visa holders, resident in the United States, or currently within U.S. territory or jurisdiction.
Although section 212(f) of the INA authorizes the President to proclaim a suspension of entry of a class of aliens whose entry “would be detrimental to the interests of the United States,”61 that provision should not be read to authorize discrimination based on religion or national origin unless necessary to achieve a compelling purpose. First, no congressional delegation of discretion to the President should be construed as carte blanche to violate binding U.S. treaty obligations. Second, the nondiscrimination provisions of the INA were added after section 212(f), and were
59 Pub. L. 82-414, § 101, 66 Stat. 163, 167 (1952) (codified as amended at 8 U.S.C. § 1101 et seq.).
60 8 U.S.C. § 1152(a)(1). 61 8 U.S.C. § 1182(f).
-16-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 24 of 38 PageID #: 1028
evidently intended to limit the President’s discretion to discriminate. The INA should therefore be interpreted in a manner consistent with U.S. obligations under international human rights law, which forbids national origin discrimination regardless of whether the applicant is a resident alien, a current immigrant visa holder, or has never set foot within the United States.62
IV. The Due Process Clause of the Fifth Amendment, the Immigration and Nationality Act, the Administrative Procedures Act, and the Foreign Affairs Reform and Restructuring Act of 1998 Should Be Interpreted to Prohibit the Arbitrary Detention of Visa Holders and Exclusion of Refugees
A. Applicable Treaties and Customary International Law
Article 9 of the CCPR prohibits arbitrary arrest and detention of any person. It specifically requires that “[a]nyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”63 In order to be effective, this review must be independent, provide a real inquiry into the necessity of the detention, and include the possibility for a reviewing court to order release if the detention is found unlawful. An individual’s specific circumstances must be taken into account, making the creation of a blanket detention program for all migrants unlawful, as noted above. In addition, CCPR article 13 prohibits the arbitrary expulsion of non-citizens lawfully in a state’s territory.
In 2010, the International Court of Justice held in the Diallo case that article 9 of the CCPR is applicable in principle to any form of detention, “whatever its legal basis and the objective being pursued.”64 The HRC has further clarified in its recommendations that the CCPR is applicable to “all deprivations of liberty,” including cases concerning immigration control and even when the
62 To be clear, the INA forbids discrimination based on country of origin, not distinctions based on country of origin. Not every distinction is discrimination. Only arbitrary distinctions violate the INA. Therefore, if the President were to suspend immigration from a specific country based on an actual, imminent threat, the distinction would not qualify as discrimination ab initio.
63 CCPR, supra note 6, art. 9(4). 64 Ahmadou Sadio Diallo (Rep. of Guin. v. Dem. Rep. of Congo), Judgment on the Merits, 2010 I.C.J. Rep. 639, para. 77.
-17-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 25 of 38 PageID #: 1029
detention period is of a short duration.65 Restricting personal movement of individuals at airports while under constant surveillance deprives them of liberty.66 Under international law binding on the United States, individuals arriving at United States ports of entry must be afforded an opportunity to apply for asylum or other humanitarian protection, be promptly received and properly processed by U.S. authorities, and be allowed freedom of movement absent a compelling justification.
Furthermore, the arbitrary detention of asylum seekers specifically violates U.S. treaty obligations under article 31 of the 1951 Refugee Convention, which the United States is legally bound to uphold through the 1967 Protocol. That article provides that a country may restrict the movement of refugees only when absolutely necessary.67 Indefinite detention may drive asylum seekers to return to a country in which they face the danger of persecution. Detention pending a reasonably prompt examination of the credibility of their fear of persecution qualifies as necessary; further detention does not, unless no credible fear is shown.
Most notably, the Refugee Convention also prohibits the expulsion of non-citizens and refugees lawfully in the territory of the United States except in pursuance of a decision reached by due process of law (a prohibition also included in the CCPR).68 Article 33 prohibits states from expelling or returning “any refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Article 3 requires states to apply this nonrefoulement obligation “without discrimination as to race, religion, or country of origin.” The Refugee Convention is self-executing and, therefore, directly enforceable by U.S. courts.
65 Torres v. Fin, U.N. Hum. Rts. Comm., Comm. No. 291/1988 (Apr. 2, 1990), U.N. Doc. CCPR/C/38/D/291/1988; A v. Australia, U.N. Hum. Rts. Comm., Comm. No. 560/1993 (Apr. 30, 1997), U.N. Doc. CCPR/C/59/D/560/1993; see also, U.N. Hum. Rts. Council, Report of the Working Group on Arbitrary Detention, at 20, para. 55, Dec. 24, 2012, U.N. Doc. A/HRC/22/44 (“Any confinement or retention of an individual accompanied by restriction on his or her freedom movement, even if of relatively short duration, may amount to de facto deprivation of liberty.”) [hereinafter “U.N. Human Rights Council Report”].
66 U.N. Human Rights Council Report supra note 65, at 21, para. 59; see U.N. Econ. & Soc. Council, Report of the Working Group to the Economic and Social Council at 13, para. 41, Dec. 19, 1997, U.N. Doc. E/CN.4/1998/44.
67 1951 Refugee Convention, supra note 5, art. 31(2). 68Id. art. 32; CCPR, supra note 6, art. 13.
-18-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 26 of 38 PageID #: 1030
Moreover, the article 33 non-refoulement obligation is part of customary international law.69 The Refugee Act of 1980 expressly incorporated the definition of “refugee” from the Convention to ensure U.S. compliance with U.S. treaty obligations.70
The jurisprudence of the Inter-American Commission on Human Rights (“IACHR”) is helpful in interpreting these obligations. The IACHR is a principal organ of the Organization of American States, of which the United States is a member. In its 2015 report on the human rights of refugees, migrant families, and unaccompanied children in the United States, the IACHR established that in order to comply with each person’s right “to seek and receive asylum in foreign territory” the domestic procedures must be adequate and effective.71 This requires, at minimum, that an asylum seeker be provided a hearing that complies with the basic due process standards.72
As noted in Section I, the United States is also a party to the CAT, article 3 of which provides: “No State shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” CAT’s non-refoulement obligation requires that the United States examine the risks of torture or persecution in the state of return. The prohibition on torture in particular has long been customary international law, as recognized in the Second Circuit.73
The Committee Against Torture, the international body assigned by the CAT to monitor state implementation of the Convention and offer guidance on its provisions, has clarified that these obligations apply “not only in [the state’s] sovereign territory but also . . . [in] . . . all areas where the State partly exercises, directly or indirectly, in whole or in part, de jure or de facto effective control,” and that “States parties are obligated to adopt effective measures to prevent public authorities and other persons acting in an official capacity” from violating the rights provided for in the CAT.74 Furthermore, the IACHR has interpreted state obligations under
69 See Aoife Duffy, Expulsion to Face Torture? Non-refoulement in International Law, 20 INT’L J. REFUGEE L. 373 (2008).
70 Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 102 (codified at 8 U.S.C. § 1101(a)(42)). 71 Inter-Am. Comm’n. H.R., Report on Immigration in the United States: Detention and Due Process, para. 63, OEA/Ser.L/V/II., doc. 78/10 (Dec. 30, 2010). 72 Id. para. 96. 73 Filartiga v. Pena-Irala, 630 F.2d 876, 881-85 (2d Cir. 1980); see Hannum, supra note 10, at 344-45. 74 Committee Against Torture, General Comment No. 2, paras. 16-17, U.N. Doc. CAT/C/GC/2 (2008).
-19-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 27 of 38 PageID #: 1031
international human rights law, and U.S. obligations in particular, as prohibiting the forcible return of asylum seekers to another country without an examination of the risks of torture or other persecution, even though they may not then be in U.S. territory or under U.S. jurisdiction.75 The non-refoulement obligation under international law consequently has no geographic limitation.76
B. The Executive Order Is Inconsistent with U.S. Obligations Under International Law Relating to Arbitrary Detention and Exclusion of Refugees
The text of the EO does not specifically call for a detention program for individuals entering the United States, but arbitrary detention was a foreseeable consequence of the order. On January 27, 2017, pursuant to the EO, the Department of State ordered the revocation of nearly all valid immigrant and non-immigrant visas already issued to nationals of the seven countries, subject
75 The Haitian Center for Human Rights v. United States, Case 10.675, Inter-Am. Comm’n H.R., Rep. No. 51/96, para. 157, OEA/Ser.L./V/II.95, doc. 7 rev. at 550 (1997).
76 Although the Supreme Court in Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993), held the interdiction and return of Haitian refugees on the high seas to be consistent with U.S. obligations under international law, it is the position of amici, as it is the position of the IACHR, the U.N. Special Rapporteur on Torture, and indeed of virtually every other expert in international law to comment on the case since, that the Court’s decision erred and put the United States in violation of international human rights law. See, e.g., Special Rapporteur on Torture, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, at 14-16, paras. 38-43, Aug. 7, 2015, U.N. Doc. A/70/303; Open Letter from International Lawyers to the peoples of Europe, the European Union, EU Member States and their representatives on the Justice and Home Affairs Council (Sept. 28, 2015), at http://ohrh.law.ox.ac.uk/wordpress/wp-content/uploads/here.pdf; Bill Frelick, “Abundantly Clear”: Refoulement, 19 GEO. IMMIGR. L.J. 245, 266-67 (2005); Joan Fitzpatrick, The International Dimension of U.S. Refugee Law, 15 BERK. J. INT’L L. 1 (1997); Theodor Meron, Extraterritoriality of Human Rights Treaties, 89 AM. J. INT’L L. 78 (1995); Thomas David Jones, International Decision: Sale v. Haitian Centers Council, Inc., 88 AM. J. INT’L L. 114 (1994). The examples could easily be multiplied.
Even the U.S. government has now accepted that its obligations under article 16 of the CAT apply at a minimum “in places outside the United States that the U.S. government controls as a governmental authority.” See Statement by NSC Spokesperson Bernadette Meehan on the U.S. Presentation to the Committee Against Torture, Nov. 12, 2014, at https://obamawhitehouse.archives.gov/the-press-office/2014/11/12/statement-nsc-spokespersonbernadette-meehan-us-presentation-committee-a.
-20-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 28 of 38 PageID #: 1032
to a case-by-case review77 that has not yet occurred. Due to the government’s lack of preparation for the EO, that review could not take place without the extended detention of visa-holders, applicants, and refugees already arrived in the United States. The order was issued without providing for the exigencies of large numbers of U.S. visa holders and refugees continuously arriving at U.S. airports, seaports, and borders from the designated states. The haphazard implementation of the order denied individuals the opportunity for individualized review and resulted in due process violations pertaining to detention, denial of counsel, and the removal of those with valid visas to enter and remain in the United States. Over one hundred individuals, migrants, permanent residents, and asylum seekers were detained at U.S. ports in the days immediately after the EO was issued,78 and more than two hundred individuals were denied entry to the U.S. despite having valid visas.79 Individuals with valid immigration documents have been reportedly expelled from the United States.80 Many were immediately sent back, without any individual assessment of their situation or risk of persecution, in violation of international law.81
More generally, a valid visa holder who arrives in the United States is “lawfully in the territory” of the United States; consequently, expulsion purely on grounds of religion or national origin, especially without individual assessment of risk, is not “in pursuance of a decision reached in accordance with law” and therefore violates article 13 of the CCPR.
In short, exclusion of a refugee without examining whether the refugee will thereby be subjected to a risk of torture in the country of return violates U.S. obligations under the Refugee Convention and CAT, and violates due process under the CCPR. U.S. obligations under these
77 Memorandum from Edward J. Ramotowski, Dep’y Assist. Sec’y of State, U.S. Dep’t of State (Jan. 27, 2017), available at http://www.politico.com/f/?id=00000159-f6bd-d173-a959ffff671a0001.
78 Maquita Peters & Colin Dwyer, Federal Judge Stays Deportations, Blocking Part of Trump’s Immigration Order, NPR, Jan. 28, 2017, at http://www.npr.org/sections/thetwoway/2017/01/28/512158238/arrivals-to-u-s-blocked-and-detained-as-trumps-immigration-freezesets-in.
79 Betsy Woodruff, White House Lowballs Impact of Trump Ban, THE DAILY BEAST, Jan. 30, 2017, at http://www.thedailybeast.com/articles/2017/01/30/white-house-lowballs-impact-oftrump-ban.html.
80 Evan Perez, Pamela Brown & Kevin Liptak, Inside the Confusion of the Trump Executive Order and Travel Ban, CNN, Jan. 28, 2017, at http://www.cnn.com/2017/01/28/politics/donaldtrump-travel-ban/.
81 Id.. -21-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 29 of 38 PageID #: 1033
treaties extend to individuals barred under the EO, including all individuals detained within or expelled from U.S. territory, or repelled in transit or from areas of foreign airports under U.S. control without assessment of their risk of torture or persecution. By renouncing the President’s constitutional obligation to comply with U.S. treaties ratified by the Senate, the EO puts thousands of individuals at potential risk of torture or other persecution in violation of U.S. obligations under international law. The EO’s asserted national security rationale for depriving refugees of this right cannot satisfy even rational basis scrutiny. In fact, from 1975 to 2015, the overall chance that an American would be killed in a terror attack by a refugee was one in 3.64 billion each year.82 The reason for this statistic is that the normal vetting process has proven entirely adequate to ensure that refugees seek asylum in good faith, as former high-ranking national security officials have testified.83 The President cannot justify putting refugees at risk of torture and persecution in violation of international law to mitigate a nearly nonexistent danger.
C. The Due Process Clause and Relevant Statutes Should Be Interpreted in Light of U.S. Obligations Under International Human Rights Law
The Fifth Amendment to the Constitution provides in relevant part: “No person shall be . . . deprived of life, liberty, or property without due process of law . . . .” Holding an individual in detention violates the Due Process Clause if it is without cause, because detention without cause cannot possibly serve a legitimate government purpose. The Supreme Court has established a presumption against such detention: “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”84 Detention that is “excessive in relation to the regulatory goal” violates substantive due process.85 This aspect of the Court’s interpretation of the Due Process Clause aligns the United States with international human rights law.86
82 Nowrasteh, Terrorism and Immigration, supra note 55, at 18. 83 See Joint Declaration of National Security Officials para. 6, Washington v. Trump, No. 17-35105 (9th Cir. 2017), available at https://www.aclu.org/legal-document/state-washington-vtrump-declaration-national-security-officials. 84 United States v. Salerno, 481 U.S. 739, 755 (1987); accord Zadvydas v. Davis, 533 U.S. 678, 690-92 (2001) (applying the same due process principle to immigration detention). 85 Salerno, 481 U.S. at 755. 86 The Supreme Court stated in Sosa v. Alvarez-Machain that detention must be “prolonged” to violate customary international law in the context of the arrest and extradition of
-22-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 30 of 38 PageID #: 1034
Although national security may be a valid government purpose, as the preceding sections discuss, using religion or country of origin as a simplistic proxy for terrorism has no basis in fact; violates U.S. nondiscrimination obligations; and is not only excessive in relation to the goal of national security, but also bears no meaningful empirical relation to it. Consequently, the EO violates the substantive due process rights of detained visa holders, applicants, and refugees by forcing the government to detain such persons arbitrarily.
The Fifth Amendment Due Process Clause also guarantees procedural due process by mandating that “no person” will be denied notice and a meaningful opportunity to be heard before a neutral decisionmaker.87 “It is well established that the Fifth Amendment entitles non-citizens to due process of law in deportation proceedings.”88 The Supreme Court has held that a noncitizen in the United States unlawfully, involuntarily, or transitorily is still entitled to the Fifth Amendment’s due process protections.89 Refugees, who are a category of non-citizens seeking protection from persecution and entitled to special consideration under international law, are a fortiori entitled to the due process of law, including individualized consideration of their respective situation and the risks associated with exclusion or return.
In addition, the INA and Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”)90 both implement international obligations of due process with respect to refugees. The INA provides: “Any alien who is physically present in the United States or who arrives in the United States . . . irrespective of such alien’s status, may apply for asylum.”91 It further provides applicants with the opportunity to take part in removal proceedings before an immigration judge.92 Under the Refugee Convention, an asylum seeker who not been convicted of a serious crime can only be returned when there are “reasonable grounds for regarding” the individual as “a danger to the security of the country.”93 The EO excludes refugees based on religion and country of origin
an accused criminal. 542 U.S. 692, 737 (2004). That reasoning does not apply when the detention is not part of normal criminal procedures but pursuant to an arbitrary and discriminatory policy.
87 U.S. CONST. amend. V; see Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004). 88 Reno v. Flores, 507 U.S. 292, 306 (1993). 89 Matthews v. Diaz, 426 U.S. 67, 77 (1976). 90 Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681 (codified as amended at 8 U.S.C. § 1231). 91 8 U.S.C. § 1158(a). 92 8 U.S.C. § 1229(a)(1). 93 1951 Refugee Convention, supra note 5, art. 33(2).
-23-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 31 of 38 PageID #: 1035
without the required individualized assessment. The INA nowhere authorizes the President to abrogate these rights with respect to refugees in violation of U.S. obligations under international treaties based on discriminatory motives.
The FARRA implements U.S. obligations under CAT by incorporating the CAT’s nonrefoulement obligation whenever the return of individuals places them at risk of torture or persecution. It also requires procedural safeguards necessary to determine their claims of risk of such torture or persecution. The FARRA states the United States shall not “expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture.”94 This provision was adopted to codify article 33 of the Refugee Convention, which uses very similar words, and should be construed consistently with U.S. obligations under international law The FARRA should, therefore, be interpreted to prohibit the President from ordering immigration officials to deny refugees in U.S. territory or under U.S. control a reasonable opportunity to present their case against exclusion or expulsion.
Finally, the Administrative Procedure Act (“APA”)95 requires courts to hold unlawful any federal agency action performed “without observance of procedure required by law.”96 Like the other statutes discussed here, the APA should be interpreted to uphold U.S. obligations under the CCPR and CAT. These treaties require the government to observe due process of law by not imposing arbitrary conditions on the exercise of a right or acting inconsistently with the valid legislation or the government’s own published procedures. Pursuant to the EO, the Department of Homeland Security has refused to honor valid immigration and nonimmigration visas issued by the government. Nor did it comply with FARRA requirements to examine the risks of torture and persecution to asylum seekers. Arbitrarily denying non-citizens the benefit of a valid visa without good cause, and failing to provide an individualized assessment of the risks associated with return by asylum seekers, both violate international human rights law and should be held to violate the APA as well.
94 8 U.S.C. § 1231. 95 Pub. L. 79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. §§ 551-59). 96 5 U.S.C. § 706(2)(D).
-24-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 32 of 38 PageID #: 1036
CONCLUSION For the foregoing reasons, amici respectfully request that Court issue a permanent injunction prohibiting enforcement of Sections 3 and 5 of the Executive Order.

DATED: February 15, 2017 Phoenix, Arizona

Respectfully submitted,

AARON FELLMETH*97(admission pro hac vice pend.) Jordan Brunner, Law Student Intern Amanda Ghannam, Law Student Intern Jennifer Hancock, Law Student Intern Madeline Mahugh, Law Student Intern
Arizona State University, Sandra Day O’Connor College of Law Mail Code 9520 111 E. Taylor St. Phoenix, AZ 85004-4467 (480) 241-8414 aaron.fellmeth@asu.edu
JONATHAN HAFETZ* (JLH-0843) Seton Hall University School of Law One Newark Center Newark, NJ 07102 (917) 355-6896 jonathan.hafetz@shu.edu
*97Address is for correspondence and identification only. This brief does not purport to state the views of Arizona State University or Seton Hall University, or their respective law schools, if any.
-25-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 33 of 38 PageID #: 1037

Of Counsel:
Shifa Alkhatib 620 W. Jackson St., Ste. 4105 Phoenix, AZ 85003 (602) 349-5524 shifa.alkhatib@gmail.com
Meghan Waters 2565 S. Milwaukee St. Denver, CO 80210 (303) 641-1531 megwat@gmail.com

Catherine Moore University of Baltimore School of Law 1420 N. Charles St. Baltimore, MD 21201 (410) 837-6784 cmoore@ubalt.edu

-26-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 34 of 38 PageID #: 1038

APPENDIX

The amici are nongovernmental organizations and legal scholars specializing in public international law and international human rights law. They have substantial expertise in issues directly affecting the outcome of this case. These amici are identified below.

Organizations

Human Rights Advocates

Legal Aid Society (New York)

Human Rights & Gender Justice Clinic, City University of New York School of Law
International Association of Democratic Lawyers

MADRE National Center on Homelessness & Poverty National Lawyers Guild

International Center for Advocates Against Discrimination
International Justice Project

Secular Communities of Arizona T’ruah: The Rabbinic Call for Human Rights

Individuals
Institutional affiliations are listed for identification purposes only; opinions in this brief do not reflect those of any affiliated organization.
1. William Aceves, Dean Steven R. Smith Professor of Law, California Western School of Law
2. Dr. Johannes van Aggelen, former senior human rights official, United Nations, Office of the High Commissioner for Human Rights
3. Wanda M. Akin, Esq., Co-Founder, International Justice Project
4. Don Anton, Professor of International Law & Director, Law Future Centre, Griffith University Law School, Australia
5. Paige Berges, Esq., London, United Kingdom
6. Wendi Warren H. Binford, Associate Professor of Law; Director, Clinical Law Program, Willamette University
7. Carolyn Patty Blum, Interim Director, Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic, Benjamin N. Cardozo Law School
-27-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 35 of 38 PageID #: 1039
8. Anthony P.X. Bothwell, Esq., Law Offices of Anthony P.X. Bothwell 9. Bill Bowring, Professor & Director of the LLM/MA in Human Rights, University of London,
Birkbeck College School of Law, U.K. 10. Raymond M. Brown, Co-Founder, International Justice Project 11. Gráinne de Búrca, Florence Ellinwood Allen Professor of Law, New York University Law
School 12. Elizabeth Burleson, Esq., Greenwich, CT 13. Roderick P. Bushnell, Esq., Law Offices of Roderick P. Bushnell, San Francisco, CA 14. Linda Carter, Professor of Law Emerita, University of the Pacific, McGeorge School of Law 15. Dr. Grace Cheng, Associate Professor of Political Science, Hawai’i Pacific University 16. Marjorie Cohn, Professor Emerita, Thomas Jefferson School of Law 17. Jorge Contesse, Assistant Professor, Rutgers (Newark) Law School 18. Omar Dajani, Professor, University of the Pacific, McGeorge School of Law 19. Thomas A. Dallal, Esq., Deputy Director, Diakonia International Humanitarian Law Resource
Center, Jerusalem 20. Margaret M. deGuzman, Associate Professor, Temple University, Beasley School of Law 21. Daniel H. Derby, Professor, Touro Law Center 22. Margaret Drew, Associate Professor & Director, Human Rights at Home Clinic, University of
Massachusetts Law School 23. Ariel Dulitzky, Clinical Professor of Law, University of Texas School of Law 24. Monica Feltz, Esq., Executive Director, International Justice Project 25. Martin S. Flaherty, Leitner Family Professor of International Human Rights Law, Co-Director,
Leitner Center for International Law & Justice, Fordham Law School 26. Daniel Fullerton, Counsel, Public International Law & Policy Group 27. Hannah Garry, Clinical Professor of Law & Director, International Human Rights Clinic,
University of Southern California, Gould School of Law
-28-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 36 of 38 PageID #: 1040
28. Peter Halewood, Professor of Law, Albany Law School 29. Alexandra Harrington, Adjunct Professor, Albany Law School 30. Deena Hurwitz, Esq., Charlottesville, VA 31. Dr. Alice de Jonge, Senior Lecturer, Monash University, Australia 32. Christine Keller, Esq., Legal Officer, International Criminal Tribunal for the Former
Yugoslavia 33. Jocelyn Getgen Kestenbaum, Telford Taylor Visiting Clinical Professor of Law, Benjamin N.
Cardozo School of Law 34. Robert Lutz, Paul E. Treusch Professor of Law, Southwestern Law School 35. Daniel Barstow Magraw, Senior Fellow, Foreign Policy Institute and Professorial Lecturer,
Johns Hopkins University School of Advanced International Studies 36. Kathleen Maloney, Adjunct Professor, Lewis & Clark School of Law 37. Annette M. Martínez-Orabona, Adjunct Professor, Inter-American University of Puerto Rico,
School of Law 38. Jeanne Mirer, Esq., President, International Association of Democratic Lawyers 39. Steven S. Nam, Distinguished Practitioner, Center for East Asian Studies, Stanford University 40. Dr. Andrew Novak, Term Assistant Professor of Criminology, Law & Society, George Mason
University 41. Nigel N.T. Li, President, International Law Association, Chinese (Taiwan) Branch; Chinese
(Taiwan) Society of International Law 42. Anna R. Maitland, Schuette Clinical Fellow, Center for International Human Rights,
Northwestern University, Pritzker School of Law 43. Kathleen M. Maloney, Adjunct Professor, Lewis and Clark School of Law 44. Thomas M. McDonnell, Professor of Law, Pace University, Elisabeth Haub School of Law 45. Natasha Lycia Ora Bannan, President, National Lawyers Guild 46. Aparna Polavarapu, Assistant Professor, University of South Carolina School of Law 47. Dianne Post, Esq., Central Arizona National Lawyers Guild
-29-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 37 of 38 PageID #: 1041
48. William Quigley, Professor of Law, Loyola University New Orleans, Loyola College of Law 49. Balakrishnan Rajagopal, Professor of Law & Development, Massachusetts Institute of
Technology 50. Jaya Ramji-Nogales, I. Herman Stern Professor of Law, Temple University, Beasley School
of Law 51. Nicole Rangel, Esq., Associate Legal Officer, International Criminal Tribunal for the Former
Yugoslavia 52. Marny Requa, Associate Professor, Georgian Court University (Lakewood, NJ) 53. Nani Jansen Reventlow, Associate Tenant, Doughty Street Chambers, U.K. 54. Francisco J. Rivera Juaristi, Director, International Human Rights Clinic, Santa Clara
University School of Law 55. Gabor Rona, Visiting Professor of Law, Cardozo Law School 56. Lt. Joshua Root, Esq., Instructor of Human Rights and International Law, Newport, RI 57. Leila Sadat, Henry H. Oberschelp Professor of Law; Director, Whitney R. Harris World Law
Institute, Washington University School of Law 58. Margaret L. Satterthwaite, Professor of Clinical Law, New York University School of Law 59. Beth Van Schaack, Leah Kaplan Visiting Professor in Human Rights, Stanford Law School 60. Mortimer Sellers, Regents Professor and Director, Center for International and Comparative
Law, University of Baltimore School of Law 61. Corey Shenkman, Esq., Principal Investigator, Institute for Social Policy and Understanding 62. Dr. Anette Sikka, Asisstant Professor of Legal Studies, University of Illinois, Springfield 63. Matiangai Sirleaf, Assistant Professor, University of Pittsburgh Law School 64. David L. Sloss, Professor of Law, Santa Clara University Law School 65. Rachel A. Smith, International Law Association, American Branch, Program Director 66. Juliet S. Sorensen, Harry R. Horrow Professor of International Law, Northwestern University,
Pritzker School of Law
-30-

Case 1:17-cv-00480-CBA Document 90 Filed 02/15/17 Page 38 of 38 PageID #: 1042
67. Dr. Michael Stein, Executive Director & Visiting Professor, Harvard Law School Project on Disability
68. Milena Sterio, Professor of Law & Associate Dean, Cleveland State University, ClevelandMarshall College of Law
69. Jessica Stern, Executive Director, OutRight Action International 70. Anastasia Sarantos Taskin, Esq., Taskin Law & Mediation 71. Juliet S. Sorensen, Harry R. Horrow Professor of International Law, Northwestern University,
Pritzker School of Law 72. Beth Stephens, Distinguished Professor, Rutgers (Camden) Law School 73. Dr. Tara Van Ho, Assistant Professor, Aarhus University Department of Law 74. Constance de la Vega, Professor of Law, University of San Francisco 75. Dr. Ralph Wilde, Reader, University College of London Faculty of Laws, U.K. 76. Matthew Zagor, Associate Professor, Australia National University College of Law 77. Katja Ziegler, Sir Robert Jennings Professor International Law, Director, Centre of European
Law and Internationalisation, University of Leicester School of Law, U.K.
-31-

 </s> Case 1:17-cv-00480-CBA Document 99 Filed 02/16/17 Page 1 of 15 PageID #: 1076

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI,
on behalf of the themselves and others similarly situated,
Petitioners,
-against-
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and JAMES T. MADDEN, New York Field Director, CBP,
Respondents.

No. 17 Civ. 00480

BRIEF OF AMICI CURIAE VETS FOR AMERICAN IDEALS, NO ONE LEFT BEHIND, VOTE VETS, AND COMMON DEFENSE
IN SUPPORT OF PETITIONERS

Emery Celli Brinckerhoff & Abady LLP 600 Fifth Avenue, 10th Floor New York, New York 10020 (212) 763-5000

Case 1:17-cv-00480-CBA Document 99 Filed 02/16/17 Page 2 of 15 PageID #: 1077

TABLE OF CONTENTS

PAGE NO.

CORPORATE DISCLOSURE STATEMENT ...............................................................................1

INTEREST OF AMICI ....................................................................................................................1

THE EXECUTIVE ORDER ENDANGERS AMERICAN SOLDIERS AND THEIR LOCAL ALLIES .............................................................................................................................2

A. The U.S. Military Depends on Local Allies Who Risk Their Lives............3

B. The Executive Order Harms U.S. Allies on the Ground..............................6

C. The Reality on the Ground: This Executive Order Endangers American Soldiers on the Front Lines .........................................................8

CONCLUSION ..............................................................................................................................13

i

Case 1:17-cv-00480-CBA Document 99 Filed 02/16/17 Page 3 of 15 PageID #: 1078
CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Civil Procedure 7.1, amici curiae state that they do not have parent corporations and that no publicly held corporation owns 10 percent or more of any stake or stock in amici curiae.
INTEREST OF AMICI1 Amici sought leave of the Court to file this amicus brief. Dkt. No. 64. The Court granted permission on February 13, 2017. Amicus Vets for American Ideals is a nonpartisan group of veterans who share the belief that America is strongest when its policies and actions match its ideals. Vets for American Ideals was founded by Scott Cooper, a U.S. Marine who served five tours in Iraq, two in Afghanistan, one in Europe, and one in the Western Pacific. Its motto is: “We raised our right hands and pledged to support and defend the Constitution. That commitment does not stop.” Historically, Vets for American Ideals has focused on saving the Special Immigrant Visa program (SIV) for interpreters and translators who served with the U.S. military, protecting refugees, and countering Islamophobia.2 Amicus No One Left Behind is a veterans organization dedicated to helping Afghan and Iraqi combat interpreters with Special Immigrant Visas (SIVs) resettle safely in the United States, including by providing assistance with navigating the SIV process and by helping with housing, employment, and cultural adaptation upon arrival in the United States.3

1

No counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary

contribution intended to fund the preparation or submission of this brief. No person other than the undersigned

counsel contributed financially to its preparation or submission.

2

Vets for American Ideals, https://www.vfai.org/ (last visited Feb. 14, 2017).

3

No One Left Behind, http://www.nooneleft.org/ (last visited Feb. 14, 2017).

1

Case 1:17-cv-00480-CBA Document 99 Filed 02/16/17 Page 4 of 15 PageID #: 1079

Amicus Vote Vets was started in 2006 and is backed by more than 500,000 veterans, military family members, and their supporters. The mission of VoteVets is to use public issue campaigns to give a voice to veterans on matters of national security, veterans’ care, and every day issues that affect the lives of those who served, and their families.4
Amicus Common Defense is a diverse, grassroots organization of U.S. veterans who are fighting to preserve the core values they swore to uphold and defend. Together, they vow to protect our communities from hate and violence, to serve on the front lines for social, economic, and environmental justice, and to champion a truly equitable and representative democracy.5
THE EXECUTIVE ORDER ENDANGERS AMERICAN SOLDIERS AND THEIR LOCAL ALLIES
American veterans, including amici curiae and their members, were swift to condemn President Trump’s Executive Order. That is because veterans, who have served on the front lines in the fight against ISIS, Al Qaeda, and other U.S. enemies, are personally and deeply aware that American military efforts depend on local allies from Iraq and the other six countries covered by the Executive Order. These veterans also know that these local allies are vulnerable to attack by our enemies precisely because they have assisted us. They have seen their friends, their interpreters, and their partners killed, tortured, and terrorized for the help they have given to the United States. These veterans promised to help their local allies by bringing them to safety in the United States. They are committed to keeping that promise.
Based on their experience on the ground, these veterans are convinced that a ban on all nationals from the countries designated in the Executive Order is contrary to the American

4

Vote Vets, http://www.votevets.org/ (last visited Feb. 14, 2017).

5

Common Defense, http://www.commondefensepac.org/ (last visited Feb. 14, 2017).

2

Case 1:17-cv-00480-CBA Document 99 Filed 02/16/17 Page 5 of 15 PageID #: 1080
ideals that they fought for and will endanger U.S. troops. The ban will make it more difficult to retain and recruit critical local allies. And because the ban is a powerful propaganda and recruiting tool, the ban will swell the ranks of the enemy.
Amici have a unique perspective due to their service on the front lines of the fight against ISIS and other extremist organizations. In particular, amici’s perspective is relevant to the Court’s determination that there will be irreparable harm to American soldiers and their allies in the absence of an injunction, that the balance of the equities tips in Petitioners’ favor, and that an injunction is in the public interest—all issues this Court will consider in ruling on the Petitioners’ request for a preliminary injunction. See Am. Civ. Liberties Union v. Clapper, 785 F.3d 787, 825 (2d Cir. 2015).
With all of the respect and deference that their service has earned them, these veterans respectfully request that the Court consider this amicus brief and that this Court act to protect American soldiers, stand up for their local allies, and enjoin this ban that is detrimental to foreign nationals and American soldiers alike.
A. The U.S. Military Depends on Local Allies Who Risk Their Lives Armed forces have always depended heavily on the local population of the
country in which they are operating. That is even more true today as the American military is fighting non-traditional wars that are dominated by terrorists and insurgents who prey on and exploit the local population. On today’s battlefields in Iraq, Afghanistan, and elsewhere, local allies are critical to the success of U.S. military missions. They give essential assistance to American soldiers as translators and interpreters. They provide invaluable human intelligence to American military intelligence operatives. And they drive the trucks, cook the food, clean the toilets, and do all of the other countless tasks that are necessary to allow the American military to function.
3

Case 1:17-cv-00480-CBA Document 99 Filed 02/16/17 Page 6 of 15 PageID #: 1081
Paul Rieckhoff, an Iraq veteran and the founder and Chief Executive Officer of Iraq and Afghanistan Veterans of America (“IAVA”), said at a recent press conference: “The most effective weapon I had in Iraq was my interpreter. Not my gun.”6
Brandon Friedman, another Iraq veteran, remembered how Hameed Khalid Darweesh, one of the Petitioners who served as an interpreter for U.S. forces, worked in the field side-by-side with him and his fellow soldiers; while the American soldiers would be suited up in body armor, Mr. Darweesh risked his life wearing only jeans and a baseball cap. He did that for ten years.7
Matt Zeller, founder of No One Left Behind, remembered how his translator saved his life by killing two Taliban fighters who were attacking him, saying “he had my back in a way I only thought an American soldier would.”8 Captain Zack Iscol similarly testified on behalf of his Iraqi interpreter Khalid Abood al-Khafajee in a Senate hearing in 2007: “I feel that I was able to bring 30 Marines back to their families alive. Some of them may have been pretty beat-up, but they were alive. And that was down to Abood. I don’t know how I could repay him for that. I’ll be indebted to him for the rest of my life.”9
But while the U.S. military would be vulnerable without the support of these local allies, these local allies are themselves vulnerable targets precisely because of their association with American forces. “As ISIS, Al Qaeda, and the Taliban have persisted throughout the

6

Press Conference, Vets for American Ideals Facebook (Feb. 2, 2017, 4:03 pm),

https://www.facebook.com/Vets4AmerIdeals/videos/1790327564624996/.

7

Vera Bergengruen, Veterans angry Trump refugee ban includes Iraq interpreters who risked their lives,

McClatchyDC (Jan. 29, 2017, 2:44 pm), http://www.mcclatchydc.com/news/nation-world/national/national-

security/article129472524.html#storylink=cpy.

8

Matt Zeller & Janis Shinwari, We’re Leaving Afghan Allies Behind to Die, CNN (July 16, 2014),

http://www.cnn.com/2014/07/16/opinion/zeller-shinwari-afghan-interpreter-visas/.

9

Paul Lewis, Marine’s Bid to Pierce Refugee Logjam, Washington Post (Sept. 2, 2007),

http://www.washingtonpost.com/wp-dyn/content/article/2007/09/01/AR2007090101184.html.

4

Case 1:17-cv-00480-CBA Document 99 Filed 02/16/17 Page 7 of 15 PageID #: 1082
Middle East, they have frequently targeted civilians who have cooperated with Coalition Forces.”10
Iraqi translator Farah Marcolla’s house was burned down, her father was kidnapped, and her husband was murdered.11 While Ms. Marcolla eventually received a visa to come to the United States after waiting seven years, her family remains in Baghdad, waiting for permission to come. “Every day their lives are in danger,” she says. “They have to change their address, move from place to place. They live in the unknown.”12
Captain Allen Vaught said the interpreters who worked for him in Iraq “had a mark on their head for working with U.S. forces.” Of the five interpreters he worked with, two were executed by militia groups, two were saved by coming to the U.S., and one remains in the refugee screening process.13
Army First Class Private Elisabeth D. Keene fought to bring her Iraqi interpreter to the U.S. after insurgents searching for him killed his stepbrother instead, by gouging out his eyes with a power drill.14
Zakariya Al Sagheer, an Iraqi engineer who had a construction contract with the U.S. Army, was kidnapped, interrogated, and beaten on his way home from work on an Army

10

Press Release, Vietnam Veterans of America, VVA Urges President to Make Exception for Iraqi and

Afghan Interpreters (Jan. 30, 2017), https://vva.org/wp-content/uploads/2017/01/VVA-Press-Release-6-17-2.pdf.

11

Joyce Hackel, Translators who worked for the US military in Iraq wonder if their American dream is

slipping away, Public Radio International (Jan. 29, 2017, 5:15 pm), https://www.pri.org/stories/2017-01-

26/translators-who-worked-us-military-iraq-wonder-if-their-american-dream-slipping; Stephanie Ott, What happens

to Iraqis who worked with the US military?, Al Jazeera (Feb. 1, 2017),

http://www.aljazeera.com/indepth/features/2017/02/muslim-ban-closing-door-170201050223763.html.

12

Hackel, supra at n.11.

13

Johnathan Allen & Ned Parker, Trump refugee order dashes hopes of Iraqis who helped the U.S., Reuters

(Jan. 27, 2017, 9:49 pm), http://www.reuters.com/article/us-usa-trump-immigration-iraq-idUSKBN15C036.

14

Kristina Wong, Iraqi interpreters feel frightened and ‘fooled’ as U.S. visa program ends, The Washington

Times (Sept. 26, 2013), http://www.washingtontimes.com/news/2013/sep/26/iraqi-interpreters-feel-frightened-and-

fooled-as-u/.

5

Case 1:17-cv-00480-CBA Document 99 Filed 02/16/17 Page 8 of 15 PageID #: 1083
base by insurgents who “threatened to execute us for betraying our countrymen.”15 After he was rescued by American soldiers, he and his family fled Iraq and eventually received permission to come to the United States, but his sister and her family remain in danger in Iraq awaiting permission to immigrate.16
According to one study, “over 75,000 Iraqis and Afghans . . . are persecuted for their assistance to the United States.”17
B. The Executive Order Harms U.S. Allies on the Ground American veterans are aware of the debt of loyalty and gratitude they owe their
local allies. They have worked tirelessly to lobby for legislative change to create programs for these allies to find refuge in the United States. They have helped their allies navigate the bureaucracy of this system, often for years, and they have welcomed them into their homes when they have finally arrived. The Executive Order harms these allies by foreclosing their ability to find refuge in the United States.
In the wake of President Trump’s Executive Order on January 27, 2017, veterans were swift to denounce the ban. “You will find military veterans unified in support of this; it’s not partisan,” said Iraq veteran Brandon Friedman.18
In response to the outcry and outrage expressed by veterans and by the Pentagon, the Trump administration announced on February 2, 2017 that it would exempt Iraqi Special

15

Zakariya Al Sagheer, I’m, an Iraqi who risked my life for America. Trump’s visa ban puts my family in

grave danger, Vox (Feb. 9, 2017), http://www.vox.com/first-person/2017/2/9/14500576/trump-immigration-ban-

iraq-siv.

16

Id.

17

People We Serve: U.S.-Affiliated Iraqi and Afghan Wartime Allies, Urban Justice Center International

Refugee Assistance Project (IRAP) (2016), https://refugeerights.org/who-we-serve/.

18

Bergengruen, supra at n.7.

6

Case 1:17-cv-00480-CBA Document 99 Filed 02/16/17 Page 9 of 15 PageID #: 1084

Immigrant Visa (SIV) holders from the ban.19 The SIV program is open to eligible Iraqi and Afghan nationals who have worked directly with the U.S. armed forces.20
Veterans welcomed that change, but were quick to point out that it addresses only a small part of the problem. Very few Iraqis are covered by this exemption because the Iraqi SIV program was closed to new applications as of September 30, 2014.21 The SIV program is small, covering approximately 800 individuals and their families.22
The majority of Iraqis who assisted the United States and are threatened are not eligible for the SIV program, but instead have to apply to come to the United States through the Iraqi Direct Access Program, which includes approximately 58,000 people.23 The Direct Access Program is broader than the SIV program and includes eligible Iraqis who worked for the U.S. military, Coalition forces, the U.S. government, U.S. contractors, U.S. media, and U.S. nongovernmental organizations, as well as their spouses, sons, daughters, parents, and siblings (and the same family members of someone who has received a SIV).24 The Direct Access Program does not have the time limitation of the SIV program, so it is the only remaining viable way for all Iraqis who worked for the U.S. military to come to the United States if they did not meet the 2014 deadline to apply for the SIV program. All of these people remain subject to the ban.25

19

David Zucchino, Visa Ban Amended to Allow Iraqi Interpreters Into U.S., N.Y. Times (Feb. 2, 2017),

https://www.nytimes.com/2017/02/02/world/middleeast/trump-visa-ban-iraq-interpreters.html?_r=0.

20

Special Immigrant Visas (SIVs) for Iraqi and Afghan Translators/Interpreters, Bureau of Consular Affairs,

U.S. Department of State, https://travel.state.gov/content/visas/en/immigrate/iraqi-afghan-translator.html.

21

Press Release, Urban Justice Center International Refugee Assistance Project, IRAP Stands with Iraqi

Allies of the United States Affected By Executive Order (Feb. 1, 2017), https://refugeerights.org/wp-

content/uploads/2017/02/IRAP-STANDS-WITH-IRAQI-ALLIES-AFFECTED-BY-EXECUTIVE-ORDER-Press-

Release-Feb-01-2017.pdf.; Special Immigrant Visas, supra at n.22.

22

Bergengruen, supra at n.7.

23

Id.

24

U.S. Refugee Admissions Program (USRAP) Direct Access Program for U.S.-Affiliated Iraqis Fact Sheet,

U.S. Department of State (Mar. 11, 2016), https://www.state.gov/j/prm/releases/factsheets/2016/254650.htm.

25

IRAP Press Release, supra at n.21.

7

Case 1:17-cv-00480-CBA Document 99 Filed 02/16/17 Page 10 of 15 PageID #: 1085
At a recent press conference, IAVA’s CEO Paul Rieckhoff emphasized the shortcomings of the SIV exemption, explaining that most Iraqi refugees coming into the U.S. are not coming through the SIV program.26 Scott Cooper of Vets for American Ideals echoed his concerns and pointed out: “Those not eligible for SIV are just as vulnerable.” Cooper recalled one Iraqi friend not eligible for the SIV program: “He wasn’t an interpreter, he was the guy who cleaned the toilets. But he is just as brave and just as important to the war effort, and wanted to come here.”27 Now, because of this ban, that dream is shattered.
C. The Reality on the Ground: This Executive Order Endangers American Soldiers on the Front Lines The unified outcry from veterans against the Executive Order is rooted in three
principal beliefs: first, that a ban on Muslim immigrants is immoral and un-American, contrary to the very beliefs for which these veterans fought; second, that the ban directly endangers American soldiers serving on the front lines by making it more difficult to recruit and retain critical local allies; and third, that the ban is a propaganda and recruiting gift to ISIS and other U.S. enemies, which will make the fight all the more dangerous and difficult for U.S. forces. The Ban is Un-American
American veterans are loyal to their local allies who fought side-by-side with them and are still there in the trenches with their fellow American soldiers who remain deployed. These veterans strongly believe that is un-American to ask these allies to sacrifice for our security but not consider theirs, to break the promises of safety that we made to them, and to turn our backs on them in their hour of need. Veterans and their allies recognize that a ban on

26

VFAI Press Conference, supra at n.6.

27

Nona Tepper, Veterans still angry at Trump’s treatment of Iraqis who served U.S. war effort, The

Sacramento Bee (Feb. 2, 2017, 4:47 pm), http://www.sacbee.com/news/nation-

world/national/article130453574.html#storylink=cpy.

8

Case 1:17-cv-00480-CBA Document 99 Filed 02/16/17 Page 11 of 15 PageID #: 1086
Muslims is deeply offensive to Muslim and non-Muslim veterans alike who see it as the very
kind of blatant religious discrimination we decry in our enemies.
American veterans have said:
 Army Capt. Matthew Ball: “The ban is terrible. It’s terrible for what it says about our country. It’s terrible for what it says to our allies who we fight with overseas. It’s terrible for what it does to real people, struggling to flee terrorism in their home countries, who now have nowhere to go.”28
 Marine veteran and former Afghan refugee Ajmal Achekzai: “I appreciate what America has done [for] my family. My mom would have been a widow or I would have been an orphan if it wasn’t for the refugee program. When I heard that people who can’t protect themselves aren’t able to be protected as refugees here, that hit me extremely hard.”29
 John Rowan, National President of Vietnam Veterans of America: “America must fulfill her promise to Iraqi and Afghan nationals who served alongside U.S. troops that we promised safe harbor to — not only because it is a moral necessity — but because it sends a message that America keeps its promises to its allies.”30
 Matt Zeller, No One Left Behind: “The only difference between me and the [Iraqi interpreter] who saved my life is that I am a one tour combat vet and that guy is an eight tour combat vet who has saved the lives of five different Americans.”31
 Scott Cooper, Vets for American Ideals: “Leaving our allies behind when they are in grave danger will have devastating consequences for our global reputation and our goals in the Middle East. More personally, many veterans can point to a moment when one of our foreign allies saved our lives—often by taking up arms against our common enemies. They acted because they believed in America, in our mission, and in the promise that was given.”32

28

Julie Watson, Veterans protest travel ban, saying it hurts interpreters, Associated Press (Jan. 30, 2017,

11:34 pm), http://bigstory.ap.org/article/8513336c48cd46aabf557555863e8fa1/veterans-protest-travel-ban-saying-it-

hurts-interpreters.

29

Talal Ansari, Here’s What Muslim American Veterans Think Of Trump’s Refugee Ban, BuzzFeed News

(Jan. 29, 2017, 5:03 pm), https://www.buzzfeed.com/talalansari/heres-what-muslim-american-veterans-think-of-

trumps-refugee?utm_term=.wlaG4dedQl#.fk8lPOAOdx.

30

VVA Press Release, supra at n.10.

31

Press Conference, No One Left Behind Facebook (Feb. 2, 2017, 4:22 pm),

https://www.facebook.com/NoOneLeftBehindUS/videos/759408947543205/.

32

Open Letter from Scott Cooper, Founder, Vets for American Ideals & Director, Human Rights First, to

President Donald J. Trump (Jan. 29, 2017),

http://www.humanrightsfirst.org/sites/default/files/VFAI%20Open%20Letter.pdf.

9

Case 1:17-cv-00480-CBA Document 99 Filed 02/16/17 Page 12 of 15 PageID #: 1087
The Ban Will Make it Harder to Recruit Essential Allies
Veterans believe that the ban not only endangers American values and morals, but
also endangers their brothers and sisters who remain deployed today and who will deploy in the
future. These veterans are deeply aware of how dependent U.S. forces are on their local allies.
They are acutely concerned that this ban will make keeping those allies and recruiting new ones
difficult or impossible. That will make American soldiers in the field less safe.
In their own words:
 Paul Rieckhoff, IAVA: “If you’re a young infantryperson on the ground in Iraq right now and you’re trying to move the ball forward, trying to do your job, you probably have an Iraqi standing next to you. That’s a brother and sister in arms, and when that Iraqi hears that America will not protect him or her, they’re going to have second thoughts about standing with America.”33
 Matt Zeller, No One Left Behind: “The very people we asked to help us fight are now hunting them down and killing them as an example to the world that America does not keep its promise and as a message to people who might one day want to partner with us that if they stand with us, that too will be a death sentence. We’re trying to prevent the absolute degradation of our credibility abroad.”34
 Captain Ahmed Adnan al-Musawe, commander of an infantry unit of the Iraqi Army’s counterterrorism force: “If America doesn’t want Iraqis because we are all terrorists, then America should send its sons back to Iraq to fight the terrorists themselves.”35
 Jason Gorey, COO of No One Left Behind: “I am very concerned that my brothers and sisters who are involved in future conflicts will not be able to find interpreters willing to serve with and protect them.”36
 Peter Kauffmann, former Navy intelligence officer and senior adviser to VoteVets: “[T]his policy will make it harder for U.S. intelligence and military personnel to do their jobs effectively. It is a fundamental reality . . . that Muslims play a key role in the fight

33

Nikki Wentling, Veterans take to Capitol Hill to protest immigration ban, Stars & Stripes (Feb. 2, 2017),

https://www.stripes.com/news/veterans-take-to-capitol-hill-to-protest-immigration-ban-1.452234.

34

No One Left Behind Press Conference, supra at n. 33.

35

Zucchino, supra at n.19.

36

Tim Mak, The Iraqi Heroes Left Behind By Trump's Immigration Ban, The Daily Beast (Jan. 28, 2017, 9:01

pm), http://www.thedailybeast.com/articles/2017/01/28/the-iraqi-heroes-left-behind-by-trump-s-immigration-

ban.html.

10

Case 1:17-cv-00480-CBA Document 99 Filed 02/16/17 Page 13 of 15 PageID #: 1088

against radical terrorists. For intelligence officers, this policy cripples their ability to collect reliable HUMINT, a . . . term for information provided by human sources.”37
 Steve Miska, retired Army Colonel, who spent 40 months and three deployments in Iraq: “The people we need to accomplish the mission are nervous, and rightly so, that our country is going to turn our backs on them.”38
The Ban Will Help Our Enemies
Veterans who have been on the front lines in combat against ISIS, Al Qaeda, and
other American enemies are deeply concerned that the ban is a gift to these enemies who seek to
radicalize both foreign nationals and Americans. The ban feeds into and legitimizes propaganda
that America is waging a “war on Islam.” By empowering our enemies and swelling their ranks,
the ban makes the work of American soldiers in the field more dangerous and more difficult.
In the words of the veterans themselves:
 Veteran Brandon Friedman: “It’s a huge propaganda coup for ISIS.”39
 Paul Rieckhoff, IAVA: “This dangerous Executive Order compromises the safety of our troops and sets a precedent that jeopardizes the American military’s ability to fight threats like ISIS for years to come. Furthermore, this Executive Order only adds fuel to anti-American propaganda and radical recruiting efforts worldwide.”40
 Open letter to President Trump from VoteVets: “Our mission in Iraq, and the ongoing mission of ours to defeat ISIS, is dependent on people on the ground knowing that we value them more than the enemy. When your administration forces seniors with health problems, mothers, kids, and more to turn around at the airport and fly home, or worse, detain them, the message in the Middle East is clear—America sees no value in Muslim lives. ISIS and other terrorists could not dream of a better message to supercharge their recruiting.”41

37

Peter Kauffmann, President Trump’s immigration ban only weakens America’s effort to fight terrorism,

N.Y. Daily News (Jan. 29, 2017, 11:40 pm), http://www.nydailynews.com/news/politics/trump-immigration-ban-

weakens-fight-terrorism-article-1.2959198.

38

Michael R. Gordon & Eric Schmitt, Trump’s Immigration Order Jolts Iraqis, U.S.’s Top Allies Against

ISIS, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/2017/01/29/us/politics/donald-trump-immigration-

order-iraq.html.

39

Bergengruen, supra at n.7.

40

Press Release, Iraq and Afghanistan Veterans of America (IAVA), Action Targeting Refugees Endangers

Troops, National Security (Jan. 30, 2017), https://iava.org/press-release/action-targeting-refugees-endangers-troops-

national-security/.

41

Open Letter from Michael J. Zacchea, John Kulas, Stephen Moyer, Alan Petz, Paul T. Bennethum, Peter K.

Pelayic, Donald Martinez, John B. Tallyn, Major General (Ret.) Paul Eaton, Jon Soltz, David Tucker & Joshua

11

Case 1:17-cv-00480-CBA Document 99 Filed 02/16/17 Page 14 of 15 PageID #: 1089
 General Talib al Kenani, commander of the elite American-trained counter terrorist forces that have been leading the fight against ISIS for two years: “We thought we were partners with our American friends, and now we realize that we’re just considered terrorists.”42
 Kyle Dykstra, veteran of the Army’s 82nd Airborne Division and deployed twice to Afghanistan before being discharged and becoming a State Department diplomatic security agent in Iraq: “This spits in the face of almost 16 years of cooperation with Muslim allies across the world. They can die for our security, but we can’t extend that same security to them now.”43
 Lyndon Bilal, national commander of the Muslim American Veteran Association and a US Navy veteran: “It’s also empowering to terrorist organizations like ISIS and ISIL, who now have justification to what they’re calling a ‘War against the West.’”44

Brandon, to President Donald J. Trump (Jan. 30, 2017), http://www.votevets.org/press/veterans-write-trump-

demand-reversal-on-executive-order.

42

Charlie D’Agata, Iraqi general who works with American military kept from visiting U.S., CBS News (Jan.

30, 2017, 7:30 pm), http://www.cbsnews.com/news/iraqi-general-who-works-with-american-military-kept-from-

visiting-u-s/.

43

Dan, Lamothe, Among veterans, raw responses to Trump’s effort to block refugees and others from Muslim

countries, The Washington Post (Jan. 29, 2017),

https://www.washingtonpost.com/news/checkpoint/wp/2017/01/29/among-veterans-raw-responses-to-trumps-effort-

to-block-refugees-and-others-from-muslim-countries/?utm_term=.047a4c09dab1.

44

Ansari, supra at n.29.

12

Case 1:17-cv-00480-CBA Document 99 Filed 02/16/17 Page 15 of 15 PageID #: 1090
CONCLUSION No one knows better than America’s veterans what it takes to keep this country safe. They stand united in their condemnation of this Executive Order. Amici Vets for American Ideals, No One Left Behind, Vote Vets, and Common Defense, and all of the veterans they represent, respectfully urge this Court to enjoin the Executive Order. Dated: February 16, 2017 New York, New York
EMERY CELLI BRINCKERHOFF & ABADY LLP ___________/s__________________ Matthew D. Brinckerhoff Elizabeth S. Saylor Zoe Salzman 600 Fifth Avenue, 10th Floor New York, New York 10020 (212) 763-5000 Attorneys for Amici Curiae
13

 </s> Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 1 of 32 PageID #: 1142

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI, on behalf of themselves and all others similarly situated; and,
Petitioners,

Case No. 1:17-cv-00480 Judge: Carol Bagley Amon

-vs.-

DONALD TRUMP; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; JAMES T. MADDEN, New York Field Director, CBP,

Respondents.

BRIEF OF PUBLIC JUSTICE, P.C. AND IMPACT FUND AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS

PUBLIC JUSTICE, P.C. F. Paul Bland, Jr. 1825 K. Street Washington, DC 20006
Jennifer Bennett 555 12th Street Oakland, CA 94607
IMPACT FUND Jocelyn Larkin Lindsay Nako 125 University Ave. Berkeley, CA 94710

LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
Jonathan D. Selbin Daniel E. Seltz Jason L. Lichtman 250 Hudson Street, 8th Floor New York, NY 10013
Kelly M. Dermody Yaman Salahi Michelle A. Lamy 275 Battery Street, 29th Floor San Francisco, CA 94111
Andrew R. Kaufman 150 4th Ave N., Suite 1650 Nashville, TN 37212

1338214.7

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 2 of 32 PageID #: 1143

TABLE OF CONTENTS

Page

STATEMENTS OF INTEREST.................................................................................................... 1 INTRODUCTION AND SUMMARY OF ARGUMENT ............................................................ 2 ARGUMENT ................................................................................................................................. 4
I. THIS COURT HAS THE POWER TO CERTIFY CLASS ACTIONS, EVEN OUTSIDE THE EXPRESS SCOPE OF THE FEDERAL RULES OF CIVIL PROCEDURE. ..................................................................................... 4 A. All courts to consider the issue have held that district courts may certify habeas claims for class treatment. .................................................. 4 B. Numerous courts have certified class actions outside the express scope of the Federal Rules. ........................................................................ 6
II. PRELIMINARY RELIEF ON A CLASS-WIDE BASIS IS APPROPRIATE..................................................................................................... 7
III. THE CLASS CAN BE CERTIFIED AND RELIEF GRANTED EVEN IF PLAINTIFFS’ INDIVIDUAL CLAIMS ARE MOOT. ........................................ 9
IV. THE CLASS SHOULD BE CERTIFIED............................................................ 12 A. Numerosity............................................................................................... 13 B. Commonality............................................................................................ 14 C. Typicality ................................................................................................. 16 D. Adequacy ................................................................................................. 17 E. General applicability. ............................................................................... 18
CONCLUSION............................................................................................................................ 19 CERTIFICATE OF SERVICE .................................................................................................... 22

1338214.7

-i-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 3 of 32 PageID #: 1144

TABLE OF AUTHORITIES

Page

Cases
Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003) ..................................................................................................... 6
Ali v. Gonzales, 421 F.3d 795 (9th Cir. 2003) ..................................................................................................... 6
Alli v. Decker, 650 F.3d 1007 (3d Cir. 2011) .................................................................................................... 5
Am. Freedom Defense Initiative v. Metro. Transp. Auth., 815 F.3d 105 (2d Cir. 2016) .................................................................................................... 11
Am. Health Care Ass’n v. Burwell, No. 3:16-CV-00233, 2016 WL 6585295 (Nov. 7, 2016 N.D. Miss.), appeal filed (5th Cir. No. 17-60005) ......................................................................................... 7
Amador v. Andrews, 655 F.3d 89 (2d Cir. 2011) .................................................................................................. 9, 10
Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997)....................................................................................................... 3, 17, 18
Amgen Inc. v. Conn. Retirement Plans & Trust Funds, 133 S. Ct. 1184 (2013)............................................................................................................. 12
Baffa v. Donaldson, Lufkin & Jenretet Sec. Corp., 222 F.3d 52 (2d Cir. 2000) ...................................................................................................... 17
Bell v. Wolfish, 441 U.S. 520 (1979)................................................................................................................... 5
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016)............................................................................................................... 12
Campos v. I.N.S., 188 F.R.D. 656 (S.D. Fla. 1999)........................................................................................ 15, 19
Clark v. Astrue, 274 F.R.D. 462 (S.D.N.Y. 2011) ............................................................................................. 15
Comer v. Cisneros, 37 F.3d 775 (2d Cir. 1994) ................................................................................................ 10, 18
Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995) ...................................................................................................... 13
Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006) .................................................................................................... 18

1338214.7

-ii-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 4 of 32 PageID #: 1145

TABLE OF AUTHORITIES (continued)

Page

Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) ................................................................................................... 17
Fernandez-Roque v. Smith, 91 F.R.D. 117 (N.D. Ga. 1981)................................................................................................ 16
Fish v. Kobach, No. 16-2105, 2016 WL 2866195 (D. Kan. 2016)...................................................................... 8
Genesis Healthcare v. Symczyk, 133 S. Ct. 1523 (2013)................................................................................................... 9, 10, 11
Gerstein v. Pugh, 420 U.S. 103 (1975)................................................................................................................. 10
Gill v. Paige, 226 F. Supp. 2d 366 (E.D.N.Y. 2002) ..................................................................................... 14
Gonzales v. Dep’t of Homeland Security, 508 F.3d 1227 (9th Cir. 2007) ................................................................................................. 16
Gonzales v. U.S. Dep’t of Homeland Sec., 239 F.R.D. 620 (W.D. Wash. 2006) .................................................................................... 6, 15
Harris v. Nelson, 394 U.S. 286 (1969)................................................................................................................... 5
J.G. ex rel. F.B. v. Mills, 995 F. Supp. 2d 109 (E.D.N.Y. 2011) ..................................................................................... 17
Kaiser v. Cnty. of Sacramento, 780 F. Supp. 1309 (E.D. Cal. 1991) .......................................................................................... 8
Kazarov v. Achim, No. 02-5097, 2003 WL 22956006 (N.D. Ill. Dec. 12, 2003)................................. 11, 16, 17, 19
Kindle v. Dejana, 315 F.R.D. 7 (E.D.N.Y. 2016) ................................................................................................. 17
Lee v. Orr, No. 13-8719, 2013 WL 6490577 (N.D. Ill. Dec. 10, 2013)....................................................... 8
Lyons v. Weinberger, 376 F. Supp. 248 (S.D.N.Y. 1974) .......................................................................................... 15
Marshall v. Deutsche Post DHL, No. 13-CV-1471 RJD JO, 2015 WL 5560541 (E.D.N.Y. Sept. 21, 2015)........................ 13, 16
Maziarz v. Housing Auth. of the Town of Vernon, 281 F.R.D. 71 (D. Conn. 2012) ............................................................................................... 15

-iii-
1338214.7

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 5 of 32 PageID #: 1146

TABLE OF AUTHORITIES (continued)

Page

Mental Disability Law Clinic v. Hogan, No. 06-6320 , 2008 WL 4104460 (E.D.N.Y. Aug. 29, 2008) ................................................... 9
Middendorf v. Henry, 425 U.S. 25 (1976)..................................................................................................................... 5
New York v. Heckler, 105 F.R.D. 118 (S.D.N.Y.1985) .............................................................................................. 15
Olson v. Wing, 281 F. Supp. 2d 476 (E.D.N.Y. 2003) ..................................................................................... 11
Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982) .................................................................................... 16, 19
Pella Corp. v. Saltzman, 606 F.3d 391 (7th Cir. 2010) ..................................................................................................... 8
Perez-Funez v. I.N.S., 611 F. Supp. 990 (C.D. Cal. 1984) .................................................................................... 16, 19
Quinault Allottee Ass’n & Individual Allottees v. United States, 453 F.2d 1272 (Ct. Cl. 1972) ..................................................................................................... 7
Rivera v. Harvest Bakery, Inc., 312 F.R.D. 254 (E.D.N.Y. 2016) ............................................................................................. 15
Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993) .................................................................................................... 16
Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2009) ....................................................................................... 5, 15, 18
Rodriguez v. Providence Cmty. Corrs., Inc., 155 F. Supp. 3d 758 (M.D. Tenn. 2015).................................................................................... 8
Ruggles v. WellPoint, Inc., 272 F.R.D. 320 (N.D.N.Y. 2011) ............................................................................................ 14
Schall v. Martin, 467 U.S. 253 (1984)................................................................................................................... 5
Sero v. Oswald, 351 F. Supp. 522 (S.D.N.Y. 1972) ............................................................................................ 4
Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974) ............................................................................................ 2, 4, 5
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010)................................................................................................................... 7

-iv-
1338214.7

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 6 of 32 PageID #: 1147

TABLE OF AUTHORITIES (continued)

Page

Shahriar v. Smith & Wollensky Rest. Group, Inc., 659 F.3d 234 (2d Cir. 2011) .................................................................................................... 16
Shelton v. Bledsoe, 775 F.3d 554 (3d Cir. 2015) .................................................................................................... 13
Sosna v. Iowa, 419 U.S. 393 (1975)................................................................................................................... 9
Strawser v. Strange, 105 F. Supp. 3d 1323 (S.D. Ala. 2015) ..................................................................................... 8
Sykes v. Mel S. Harris and Assocs., LLC, 780 F.3d 70 (2d Cir. 2015) .................................................................................... 13, 14, 16, 18
Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d, 136 S. Ct. 2271 (2016) ..................................................... 7
Thomas v. Johnston, 557 F. Supp. 879 (W.D. Tex. 1983) .......................................................................................... 8
Toure v. Cent. Parking Sys., No. 05- 5237, 2007 WL 2872455 (S.D.N.Y. Sept. 28, 2007) ................................................. 18
U.S. Parole Comm’n v. Geraghty, 445 U.S. 388 (1980)..................................................................................................... 3, 8, 9, 10
United States ex rel. Morgan v. Sielaff, 546 F.2d 218 (7th Circ. 1965).................................................................................................... 6
Wal-Mart Stores v. Dukes, 131 S. Ct. 2541 (2011)............................................................................................................. 14
Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) ................................................................................................. 15
Washington v. Trump, No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 9, 2017) ........................................................ 11
White v. Mathews, 559 F.2d 852 (2d Cir. 1977) .................................................................................................... 11
Williams v. Richardson, 481 F.2d 358 (8th Cir. 1973) ............................................................................................... 5, 17
Statutes
28 U.S.C. § 1651............................................................................................................................ 2
28 U.S.C. § 2072............................................................................................................................ 2

-v-
1338214.7

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 7 of 32 PageID #: 1148

TABLE OF AUTHORITIES (continued)

Page

Rules Fed. R. Civ. P. 1 ............................................................................................................................. 2 Fed. R. Civ. P. 23 .................................................................................................................. passim Other Authorities Jaweed Kaleem, Nearly 60,000 visas revoked since Trump’s immigration
order, L.A. TIMES, Feb. 3, 2017, https://goo.gl/fhCxuy .......................................................... 13

-vi-
1338214.7

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 8 of 32 PageID #: 1149
STATEMENTS OF INTEREST The Impact Fund is a non-profit legal foundation that provides strategic leadership and support for impact litigation to achieve economic and social justice. The Impact Fund provides funding, offers innovative training and support, and serves as counsel for impact litigation across the country. The Impact Fund has served as counsel in a number of major civil rights cases, including cases challenging employment discrimination, lack of access for those with disabilities, and violations of fair housing laws. Through its work, the Impact Fund seeks to use and support impact litigation to achieve social justice for all communities. Public Justice, P.C. is a national public interest law firm that specializes in precedentsetting, socially-significant civil litigation, with a focus on fighting corporate and governmental misconduct. Much of Public Justice’s work involves protecting and vindicating civil rights—and defending access to justice for those whose rights have been violated. Public Justice’s experience is that a class action is often the only means to effectively redress and prevent civil rights violations. And Public Justice’s Class Action Preservation Project seeks to preserve the integrity of class actions as a vehicle for challenging civil rights violations and other corporate and government abuses. This case exemplifies the need for class actions to vindicate important rights. It would be difficult, if not impossible, to attempt to combat the detention and removal of large numbers people at airports across the country by filing individual habeas petitions. Without the ability to proceed as a class—and obtain class-wide relief—many of those affected by the executive order would simply be unable to protect their rights. Public Justice has a strong interest in this case to help ensure that all people whose rights are affected by the executive order are able to effectively vindicate their rights.

1338214.7

-1-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 9 of 32 PageID #: 1150

INTRODUCTION AND SUMMARY OF ARGUMENT Public Justice, P.C. and Impact Fund file this amicus to assist the Court in analyzing the class certification issues implicated in this case, particularly as they relate to the propriety of the stay and the issue of mootness. Amici respectfully submit that the stay was and remains proper, that the claims are not moot, and that class certification is not only appropriate, but necessary to fully vindicate the Plaintiffs’ rights. As the Court is aware, the Federal Rules of Civil Procedure—including the class certification procedures detailed in Rule 23—apply to Plaintiffs’ claims for declaratory and injunctive relief. The Second Circuit long has recognized that class certification is also appropriate in habeas proceedings when a representative and inclusive action is necessary to vindicate substantive rights that are threatened on a group basis, so long as the court can adjudicate the common issues in a manner “uncluttered by subsidiary [individual] issues.” United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125-26 (2d Cir. 1974). Plaintiffs meet that standard because they challenge a single, uniform government policy that implicates the core substantive constitutional rights of a group of individuals, and seek equitable relief necessary to protect the rights of all, in a consistent and enforceable manner. In fashioning a class mechanism for habeas claims like this, the Second Circuit returned in Sero to first principles of the federal courts’ role and powers. 506 F.2d at 1125-27 (finding authority in the All Writs Act, 28 U.S.C. § 1651, the Rules Enabling Act, 28 U.S.C. § 2072, and courts’ centuries’-old exercise of their equity jurisdiction). Similarly, courts in scores of cases have managed litigation technically beyond the scope of the Federal Rules by adopting and employing a class procedure. See Ex. A. Amici submit that first principles further militate in favor of this Court applying the class procedure here. Federal Rule of Civil Procedure 1 provides for “the just, speedy, and

1338214.7

-2-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 10 of 32 PageID #: 1151
inexpensive determination of every action and proceeding.” While habeas cases arise outside the express scope of those Rules, the spirit of Rule 1’s mandate applies here with particular force. Absent class treatment, the core constitutional rights of many if not all members of the proposed class would go unpresented and thus unprotected. This peril implicates precisely “the policy at the very core of the class action mechanism,” to ensure that potentially meritorious claims are pressed that, if left to individual litigation, likely would go unprosecuted. Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 617 (1997). That policy is so important that the Supreme Court has held that a plaintiff representing a class seeking injunctive relief—like that sought here—retains a “legally cognizable interest” in pursuing class-wide relief even if her individual claim becomes moot on the merits. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 402-3 (1980).
This Country’s traditional motto is e pluribus unum. That motto—“out of many, one”— traces to the Second Continental Congress of 1776, and long has served as a critical philosophical pillar of our constitutional democracy. The core allegation in this case is that the January 27, 2017 Executive Order entitled Protecting the Nation from Foreign Terrorist Entry Into the United States (“January 27 Executive Order”) violates the same fundamental rights of an otherwise disparate group of individuals, uniting them in common cause and creating a cohesive class with a justiciable group claim. Thus, it is only by addressing “as one” the claims of the many—now rendered similarly situated by the January 27 Executive Order—that the rights at stake can be effectively vindicated.

1338214.7

-3-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 11 of 32 PageID #: 1152
ARGUMENT I. THIS COURT HAS THE POWER TO CERTIFY CLASS ACTIONS, EVEN
OUTSIDE THE EXPRESS SCOPE OF THE FEDERAL RULES OF CIVIL PROCEDURE. A. All courts to consider the issue have held that district courts may certify
habeas claims for class treatment. Plaintiffs’ request for class certification in this habeas corpus action blazes no new procedural ground. For more than forty years, courts across the country have recognized that the class device is a valuable and necessary case management tool for habeas corpus petitions brought on a representative basis. In one of the most widely cited and detailed opinions addressing the question, the Second Circuit recognized the propriety of habeas class actions as early as 1974. See Sero, 506 F.2d 1115. Since Sero, numerous circuit and district courts allowed habeas cases to proceed on a representative basis, and no court has held that such cases are categorically improper. See Ex. A (listing cases). Sero was and is consistent with numerous cases in which courts approved the use of the class device to adjudicate habeas petitions that sought systemic relief or otherwise sought to “settl[e] the legality of the behavior with respect to the class as a whole.” Fed. R. Civ. P. 23 advisory committee note (1966 amendments). In doing so, these courts have furthered judicial economy and consistency. Sero involved a challenge to a New York statute that resulted in longer sentences for juveniles than they would have received as adults. The district court held that “[t]here is no doubt that this is a valid class action,” and identified a core common question that affected all class members: the constitutionality of state sentencing provisions that resulted in juveniles serving longer sentences than would have been imposed on adults. Sero v. Oswald, 351 F. Supp. 522, 527, 528 (S.D.N.Y. 1972).

1338214.7

-4-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 12 of 32 PageID #: 1153

The Second Circuit affirmed, holding that district courts have the authority “to fashion for habeas actions ‘appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage.’” Sero, 506 F.2d at 1125 (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)). The court found “a compelling justification for allowing a multi-party proceeding similar to the class action authorized by the Rules of Civil Procedure,” id., as the allegation that the statute “violates equal protection is applicable on behalf of the entire class, uncluttered by subsidiary issues.” Id. at 1125-26. Class certification was particularly appropriate, it held, because many of the young adults in the class were “likely to be illiterate or poorly educated, and since most would not have the benefit of counsel to prepare habeas corpus petitions, it is not improbable that more than a few would otherwise never receive the relief here sought on their behalf.” Id. at 1126.
Since Sero, and using similar reasoning, numerous courts have approved class certification in habeas cases seeking systemic relief, or an adjudication of a policy or rule applicable to a class of petitioners. See, e.g., Alli v. Decker, 650 F.3d 1007 (3d Cir. 2011). For example, in Rodriguez v. Hayes, the petitioner sought habeas relief on behalf of himself and a class of detainees who had been or would be held for more than six months without a bond hearing while engaged in immigration proceedings. 591 F.3d 1105, 1121-26 (9th Cir. 2009). The Ninth Circuit recognized that the case allowed the district court to end “piece-meal rulings in habeas actions . . . and have the courts address the issue on a class-wide basis across the various general immigration detention statutes.” Id. at 1116-17. Performing a straightforward application of Rule 23, the Ninth Circuit reversed the district court’s denial of class certification.1
1 The Supreme Court has repeatedly declined to address whether Rule 23 is applicable to habeas petitions. See Schall v. Martin, 467 U.S. 253, 261 n.10 (1984) (citing Bell v. Wolfish, 441 U.S. 520, 527, n.6 (1979), and Middendorf v. Henry, 425 U.S. 25, 30 (1976)). But even before Sero,
Footnote continued on next page

1338214.7

-5-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 13 of 32 PageID #: 1154
Similarly, in Ali v. Ashcroft, the Ninth Circuit recognized the practical necessity of class certification in a case involving policies applicable nationwide. 346 F.3d 873, 890 (9th Cir. 2003), vacated on other grounds by Ali v. Gonzales, 421 F.3d 795 (9th Cir. 2003). In Ali, the Court affirmed certification of a nationwide class of Somali immigrants who sought to enjoin their removal to Somalia because, under the statute governing removal, Somalia did not have a functioning government to receive them. Noting the government’s uniform application of its statutory interpretation, the court held that adjudicating a single answer to the central common question, which answer would apply to all Somali immigrants affected, both made nationwide class certification appropriate and served judicial economy. Id. at 888. See also United States ex rel. Morgan v. Sielaff, 546 F.2d 218, 221 (7th Circ. 1965) (affirming availability of class action device in habeas action challenging standard used in commitment proceedings).
In sum, this representative habeas action, in seeking class action status for individuals who have been or will be denied entry to the United States on the basis of the January 27 Executive Order, places it well-within a long line of cases in which courts have employed class certification in habeas actions.
B. Numerous courts have certified class actions outside the express scope of the Federal Rules.
It is worth emphasizing that there is nothing particularly remarkable about the rule that courts can certify habeas claims for class treatment. Many courts—in many contexts—have certified classes in cases technically outside the ambit of the Federal Rules. See Ex. A (collecting cases).
Footnote continued from previous page courts recognized the utility of the class device in habeas actions. Sero cited, for example, Williams v. Richardson, in which the Eighth Circuit reversed the district court’s holding that habeas class actions were inappropriate in a case involving inmates’ challenge to the conditions of their confinement. 481 F.2d 358, 361 (8th Cir. 1973).

1338214.7

-6-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 14 of 32 PageID #: 1155

Just as Rule 23 falls “within the Supreme Court’s mandate to adopt rules of ‘practice and procedure’ for the district courts, . . . [t]here is no reason why” class actions cannot be certified outside of Rule 23. Quinault Allottee Ass’n & Individual Allottees v. United States, 453 F.2d 1272, 1274 (Ct. Cl. 1972) (holding the Court of Claims may certify class actions). Part of the explanation stems from the nature of a class action, which is merely a “procedural technique for resolving the claims of many individuals at one time . . ., comparable to joinder of multiple parties and intervention.” Id. As the Supreme Court itself explained, “Rule 23 … falls within § 2072(b)’s authorization. A class action, no less than traditional joinder (of which it is a species), merely enables a federal court to adjudicate claims of multiple parties at once, instead of in separate suits.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 408 (2010)).
So, too, here, using the class device to adjudicate Plaintiffs’ claims on behalf of themselves and all others similarly-situated merely ensures a single, uniform resolution of an indisputably common question with respect to the constitutionality of the Executive Order. It is, fundamentally, a procedural tool aimed at efficiency, one the Court unquestionably has the power to employ. II. PRELIMINARY RELIEF ON A CLASS-WIDE BASIS IS APPROPRIATE.
Recent years have seen a budding controversy over the propriety of nationwide injunctions against executive action. See, e.g., Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015), aff’d, 136 S. Ct. 2271 (2016); Am. Health Care Ass’n v. Burwell, No. 3:16-CV-00233, 2016 WL 6585295, at *19 (Nov. 7, 2016 N.D. Miss.), appeal filed (5th Cir. No. 17-60005). That controversy has no bearing here because this is a class action. As a result, the Court plainly has the authority to issue equitable relief on behalf of all class members. The scope of permissible relief is limited only by the contours of the class and the harm suffered by class members. See

1338214.7

-7-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 15 of 32 PageID #: 1156
Pella Corp. v. Saltzman, 606 F.3d 391, 395 (7th Cir. 2010) (Posner, J.) (affirming certification of a national declaratory relief class, even where class members would have to bring separate follow-on state-wide and/or individual claims for damages).
It bears emphasis that preliminary injunctive relief on a class-wide basis is appropriate even though no class has yet been certified. See, e.g., Rodriguez v. Providence Cmty. Corrs., Inc., 155 F. Supp. 3d 758, 767 (M.D. Tenn. 2015) (“Neither must Plaintiffs seek Rule 23 certification in order to enjoin the conduct about which they complain.”); Fish v. Kobach, No. 16-2105, 2016 WL 2866195, at *28 n.163 (D. Kan. 2016) (“[C]ase law supports this Court’s authority to issue classwide injunctive relief based on its general equity powers before deciding the class certification motion.”).2
This is so because Plaintiffs “allege a systemic deficiency” with respect to the January 27 Executive Order, and “[a] finding that this deficiency” violates their rights “applies with equal force” to similarly-situated individuals. Rodriguez, 155 F. Supp. 3d at 767. So long as “the Court can craft injunctive relief that will alleviate this injury pending a final ruling on the merits without necessitating individualized remedies,” id., preliminary class-wide relief is proper.

2 See also Strawser v. Strange, 105 F. Supp. 3d 1323, 1330 (S.D. Ala. 2015) (“Courts in this District and others have previously issued a preliminary injunction concurrently with certifying a class or even prior to fully certifying a class.”); Lee v. Orr, No. 13-8719, 2013 WL 6490577, at *2 (N.D. Ill. Dec. 10, 2013) (“The court may conditionally certify the class or otherwise order a broad preliminary injunction, without a formal class ruling, under its general equity powers. The lack of formal class certification does not create an obstacle to classwide preliminary injunctive relief when activities of the defendant are directed generally against a class of persons.”) (citation omitted); Kaiser v. Cnty. of Sacramento, 780 F. Supp. 1309, 1312 (E.D. Cal. 1991) (granting class-wide injunctive relief even though the court had only provisionally certified the class and had not yet fully addressed Defendants' class certification arguments); Thomas v. Johnston, 557 F. Supp. 879, 916 (W.D. Tex. 1983) (“[A] district court may, in its discretion, award appropriate classwide injunctive relief prior to a formal ruling on the class certification issue based upon either a conditional certification of the class or its general equity powers.”).

1338214.7

-8-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 16 of 32 PageID #: 1157
III. THE CLASS CAN BE CERTIFIED AND RELIEF GRANTED EVEN IF PLAINTIFFS’ INDIVIDUAL CLAIMS ARE MOOT. It is black-letter law that federal courts retain jurisdiction over a class action even if the
named plaintiffs’ claims become moot before the class is certified. See Geraghty, 445 U.S at 399. It is for this reason that, while Amici agree with Plaintiffs that their claims are not moot, the Court need not wade into that issue. Courts have jurisdiction over class actions when individual “claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” Id. at 399; see also Amador v. Andrews, 655 F.3d 89, 99-101 (2d Cir. 2011) (holding, in constitutional challenge to prison policies and procedures, claims were not mooted simply because named plaintiffs had been released prior to class certification).
The central principle animating Geraghty and Amador is that a certified class has a legal status independent of the class representative. See Sosna v. Iowa, 419 U.S. 393, 399 (1975) (explaining that, upon certification, “the class of unnamed persons . . . acquired a legal status separate from the interest” of the named plaintiff). Because that legal interest satisfies Article III, class certification “relate[s] back” to the filing of the original complaint, retaining jurisdiction even though the named plaintiff’s claims may have been mooted along the way. Id. at 402 n.11; Geraghty, 445 U.S. at 404 n.11; Amador, 655 F.3d at 99-100; see also Mental Disability Law Clinic v. Hogan, No. 06-6320, 2008 WL 4104460, at *9-10 (E.D.N.Y. Aug. 29, 2008) (relating the mootness inquiry back to the time of the filing of complaint, rather than class certification motion, and finding that claims were not moot in constitutional and statutory challenge to mental health facility policies and practices).
Nothing in Genesis Healthcare v. Symczyk, 133 S. Ct. 1523 (2013), undermines the principles articulated in Geraghty and Amador. In Genesis Healthcare, the Court held that a

1338214.7

-9-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 17 of 32 PageID #: 1158
collective action under the Fair Labor Standards Act became moot when the named plaintiff’s individual claims became moot before she had “moved for . . . certification.” Id. at 1530. Here, Plaintiffs filed a class certification motion with their original pleading, when their claims were indisputably live. Dkt. No. 4. This Court plainly understood the class nature of the claims at that time, twice referencing the claims of those “similarly situated” to Plaintiffs. Dkt. No. 8, at 1.
Whether “claims are inherently transitory is an inquiry that must be made with reference to the claims of the class as a whole as opposed to any one individual claim for relief.” Amador, 655 F.3d at 100. The “class-action aspect of mootness doctrine does not depend on the class claim’s being so inherently transitory that it meet the ‘capable of repetition, yet evading review’ standard.” Geraghty, 445 U.S. at 398 n.6. Instead, claims are inherently transitory where they are “acutely susceptible to mootness.” Comer, Comer v. Cisneros, 37 F.3d 775, 797 (2d Cir. 1994) (applying the doctrine to housing discrimination suits “because of the fluid composition of the public housing population”); see also Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975) (finding that plaintiff’s claims of detention without probable cause constitutes a “suitable exception” to the mootness doctrine on the grounds that “it is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class”).
As in Geraghty and Amador, Plaintiffs’ claims are “inherently transitory,” and the “relation back” doctrine applies. The January 27 Executive Order authorizes and instructs Defendants to refuse entry to Class Members like Plaintiffs. See January 27 Executive Order § 3(e). Faced with the choice of being removed from the country or facing indefinite detention while the legality of the order is challenged, many or all potential named plaintiffs would do exactly what Plaintiffs did here—seek immediate relief on their individual claims rather than

1338214.7

-10-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 18 of 32 PageID #: 1159
wait and sit deprived of critical constitutional rights as the court considers a motion for class certification. The population of affected individuals is at least as “fluid” as the “public housing population” (Comer) or prisoners serving a range of sentences of imprisonment (Amador).
Another factor weighing in favor of the “inherently transitory” doctrine here is that the January 27 Executive Order (at § 3(g)) affords Defendants limited discretion to permit entry “on a case-by-case basis.” This raises the possibility (not implausible given reports of Defendants’ arbitrary and ultra vires behavior to this point) of the government strategically releasing class representatives in order to avoid judicial adjudication of the January 27 Executive Order on the merits. See Washington v. Trump, No. 17-35105, 2017 WL 526497, at *8 (9th Cir. Feb. 9, 2017) (“Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.”); Olson v. Wing, 281 F. Supp. 2d 476, 484 (E.D.N.Y. 2003) (Gershon, J.) (in determining whether to relate class certification back to filing of complaint, the court should consider “the likely ability of defendants to circumvent judgment by ‘picking off’ named plaintiffs through the mooting of individual claims” (citing White v. Mathews, 559 F.2d 852, 857 (2d Cir. 1977)); Kazarov, 2003 WL 22956006, at *3 (holding that a class action challenging prolonged detention of aliens was not moot because government’s ability to release a detainee and moot their claims meant that “the system as it now exists seems to mean all cases will perpetually escape review”); cf. e.g., Am. Freedom Defense Initiative v. Metro. Transp. Auth., 815 F.3d 105, 109 (2d Cir. 2016) (“The voluntary cessation of challenged conduct will not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed. . . .”) (citation and quotation omitted).

1338214.7

-11-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 19 of 32 PageID #: 1160
One more point. In response to these arguments, Defendants may cite a number of mootness decisions arising in class or collective actions seeking money damages. See, e.g., Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016); Genesis Healthcare, 133 S. Ct. 1523. These cases are inapposite because they do not apply to injunctive relief class actions. Even if they did, they support Amici’s position that this case is not moot because they make clear that a “would-be class representative with a live claim of her own,” as Plaintiffs indisputably had, “must be accorded a fair opportunity to show that certification is warranted.” Campbell-Ewald, 136 S. Ct. at 672. IV. THE CLASS SHOULD BE CERTIFIED.
Plaintiffs propose a class of: [A]ll individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States, but who have been or will be denied entry to the United States on the basis of the January 27, 2017 Executive Order. Dkt. 4, at 3-4, ¶ 7. Class treatment is appropriate here because Plaintiffs and class members challenge a single government policy, the January 27 Executive Order. Their claims necessarily rise or fall as one—they share a “fatal similarity”—and so are suitable for class treatment. See Amgen Inc. v. Conn. Retirement Plans & Trust Funds, 133 S. Ct. 1184, 1197 (2013) (affirming class certification where the key question was “common to the class”). Plaintiffs’ legal theories rely on evidence common to the class, and will not require consideration of issues or evidence unique to themselves or individual class members. When plaintiffs seek class certification for equitable relief, they must affirmatively prove five prerequisites to class certification:

1338214.7

-12-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 20 of 32 PageID #: 1161
(1) Numerosity. Class certification is only appropriate if it is not practical to join all potential claimants in one litigation. Fed. R. Civ. P. 23(a)(1).
(2) Commonality. At least one legal or factual question must be common to every member of the class. Fed. R. Civ. P. 23(a)(2).
(3) Typicality. The named plaintiffs must have the same type of claim as other class members. Fed. R. Civ. P. 23(a)(3).
(4) Adequacy. The named plaintiffs and their counsel must represent the interests of absent class members. Fed. R. Civ. P. 23(a)(4).  
(5) General applicability. The party opposing the class has acted or refused to act on grounds that apply generally to the class. Fed. R. Civ. P. 23(b)(2).
See Sykes v. Mel S. Harris and Assocs., LLC, 780 F.3d 70, 79-80 (2d Cir. 2015).3 All five requirements are met in this case.
A. Numerosity Plaintiffs must demonstrate that “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Numerosity is presumed when a class contains more than 40 members. See, e.g., Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995); Marshall v. Deutsche Post DHL, No. 13-CV-1471 RJD JO, 2015 WL 5560541, at *3 (E.D.N.Y. Sept. 21, 2015) (Dearie, J.). Plaintiffs satisfy numerosity because the government has publicly acknowledged that, pursuant to the January 27 Executive Order, approximately 60,000 visas have been revoked. See, e.g., Jaweed Kaleem, Nearly 60,000 visas revoked since Trump’s immigration order, L.A. TIMES, Feb. 3, 2017, https://goo.gl/fhCxuy. Defendants argue that there is no one in the class because no one is currently detained. Dkt. No. 66-1, at 9. But the class includes anyone who was or will be denied entry because of the January 27 Executive Order. 3 Because Plaintiffs do not seek money damages, they need not prove that the class is readily ascertainable, that common issues predominate over individual issues, or that a class action is superior to individual actions. See, e.g., Shelton v. Bledsoe, 775 F.3d 554, 560-61 (3d Cir. 2015).

1338214.7

-13-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 21 of 32 PageID #: 1162

B. Commonality Plaintiffs must demonstrate that there is a question of fact or law common to the class. Fed. R. Civ. P. 23(a)(2). In particular, Plaintiffs must show that there is at least one common question such that “a classwide proceeding [can] generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores v. Dukes, 131 S. Ct. 2541, 2551 (2011) (emphasis in original) (citation omitted). But the presence of individual issues—even in droves—does not defeat commonality, which requires only the presence of a single “common issue that ‘drive[s] the resolution of the litigation.’” Sykes, 780 F.3d at 84 (quoting Dukes, 131 S. Ct. at 2550). Plaintiffs’ challenge to the January 27 Executive Order clearly meets the commonality requirement. Plaintiffs’ core claim is that the January 27 Executive Order, and Defendants’ policies and procedures implementing it, violate the Fifth Amendment’s Due Process Clause, the Fifth Amendment’s Equal Protection guarantees, the Immigration and Naturalization Act, and the Administrative Procedure Act. These alleged constitutional and statutory violations are “capable of classwide resolution—which means that determination of [their] truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350. None of Plaintiffs’ legal theories or causes of action require the analysis of evidence or information unique to Plaintiffs or any individual class members to be resolved. Further, to the extent resolution of any of Plaintiffs’ claims requires evidentiary analysis, the evidence will be common to the class, relating to a single, centralized policy (the January 27 Executive Order) applied uniformly to all class members. Courts regularly recognize that such challenges to centralized and uniform policies that apply to all class members are subject to common proof, and therefore apt for class treatment. See, e.g., Gill v. Paige, 226 F. Supp. 2d 366 (E.D.N.Y. 2002) (Amon, J.) (reviewing question whether Dept. of Education policy was arbitrary,

1338214.7

-14-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 22 of 32 PageID #: 1163

capricious, and contrary to law under the APA on a class-wide basis); Ruggles v. WellPoint, Inc.,
272 F.R.D. 320, 335-36 (N.D.N.Y. 2011) (finding that plaintiffs alleging violations of
employment law met commonality requirement where “shared legal and factual issues central to
th[e] litigation exist[ed] across the class,” including that all class members were “subject to
commonly applicable policies,” and “the blanket treatment of persons” meeting certain criteria
“exist[ed] as a class-wide concern”).4
Challenges to immigration policies are no exception. Indeed, “[c]lass actions seeking
injunctive relief against specific INS policies and procedures are not unusual. To the contrary,
courts have held that actions for declaratory and injunctive relief which challenge the general
administration of an INS program are the very type of lawsuit contemplated by Rule 23(a).”
Campos v. I.N.S., 188 F.R.D. 656, 659 (S.D. Fla. 1999).5
4 See also, e.g., Maziarz v. Housing Auth. of the Town of Vernon, 281 F.R.D. 71, 84 (D. Conn. 2012) (certifying claim that housing authority policy violated the Fair housing Act); Lyons v. Weinberger, 376 F. Supp. 248, 263 (S.D.N.Y. 1974) (commonality was met in class action challenge to Social Security Administration regulation because “[a]lthough various recipients’ S.S.I. benefits have been reduced for different reasons the basic legal question in this lawsuit, applicable to all members of the class, is whether benefits can be reduced without a prior opportunity to be heard”); Clark v. Astrue, 274 F.R.D. 462, 471 (S.D.N.Y. 2011) (certifying a class that challenged a Social Security Administration regulation under the APA); New York v. Heckler, 105 F.R.D. 118, 124 (S.D.N.Y.1985) (“Common questions of law and fact are presented in that the inquiry addressed by this litigation is not to a determination of the merits of individual claims, but to the legality of defendants' policy of using per se rules to deny disability claims.”); Steele v. United States, 159 F. Supp. 3d 73 (D.D.C. 2016) (certifying a class bringing an APA challenge to lawfulness of IRS regulation); cf. Rivera v. Harvest Bakery, Inc., 312 F.R.D. 254, 276 (E.D.N.Y. 2016) (Spatt, J.) (“Courts in this Circuit have held that the existence of . . . a common compensation practice will help to establish the Defendants’ liability with respect to each class member’s overtime and spread of hours claims.”). 5 See also, e.g., Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) (affirming certification of class challenging the immigration service’s procedures in obtaining waivers of a right to a hearing in removal proceedings and affirming those procedures violated notions of due process); Rodriguez 591 F.3d 1105 (reversing denial of class certification for class of aliens detained for more than six months who brought habeas claims challenging their detention on due process and APA grounds); Gonzales v. U.S. Dep’t of Homeland Sec., 239 F.R.D. 620, 628 (W.D. Wash. 2006)
Footnote continued on next page

1338214.7

-15-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 23 of 32 PageID #: 1164
C. Typicality
Plaintiffs must show that the representative plaintiffs’ claims are typical of those they
seek to represent. See Fed. R. Civ. P. 23(a)(3). The Second Circuit has explained that typicality
is satisfied “when each class member’s claim arises from the same course of events and each
class member makes similar legal arguments to prove the defendant’s liability.” Shahriar v.
Smith & Wollensky Rest. Group, Inc., 659 F.3d 234, 252 (2d Cir. 2011) (citation and internal
quotation marks omitted). In other words, the named plaintiffs should bring claims “for the same
type of injury under the same legal theory as the rest of the class.” Marshall, 2015 WL 5560541,
at *3. But “[m]inor variations in the fact patterns underlying individual claims” cannot defeat
typicality so long as the defendant directs “the same [allegedly] unlawful conduct” at all
proposed class members. Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir. 1993); cf. Sykes,
780 F.3d 70, 80 (2d Cir. 2015) (explaining that in some cases the “commonality and typicality
requirements of Rule 23(a) tend to merge”).
Typicality, like the other prerequisites to class certification, is not a close call here.
Plaintiffs do not merely make arguments that are similar to the legal arguments of other class
Footnote continued from previous page (certifying class of at least 31 individuals challenging administration of an inadmissibility waiver, and recognizing as common questions “whether Defendant’s policy . . . violates Perez-Gonzales, the Immigration and Nationality Act, the Fifth Amendment, the Administrative Procedures Act, and general principles of administrative law”), vacated and remanded on other grounds by Gonzales v. Dep’t of Homeland Security, 508 F.3d 1227 (9th Cir. 2007) (reversing preliminary injunction but not disturbing class certification); Orantes-Hernandez v. Smith, 541 F. Supp. 351, 369-372 (C.D. Cal. 1982) (certifying provisional class of Salvadorans challenging asylum practices who sought preliminary injunction); Kazarov v. Achim, No. 02-5097, 2003 WL 22956006 (N.D. Ill. Dec. 12, 2003) (certifying class challenging prolonged detention of those ordered but not yet removed from the U.S.); Perez-Funez v. I.N.S., 611 F. Supp. 990 (C.D. Cal. 1984) (certifying class and granting preliminary injunction to class challenging the INS’s practice of obtaining waiver of a right to a hearing from unaccompanied minors in violation of due process); Fernandez-Roque v. Smith, 91 F.R.D. 117 (N.D. Ga. 1981) (certifying class and subclasses of detained Cuban aliens challenging their detention).

1338214.7

-16-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 24 of 32 PageID #: 1165
members (which is all that Rule 23 requires), they make the same legal arguments as other class members: like all other class members, they are from one of the seven Muslim-majority countries identified in the January 27 Executive Order and hold a valid visa. They challenge the facial lawfulness of that Order, which directs that they and all other class members be denied entry into the United States based solely on their membership in the class.
D. Adequacy Plaintiffs must “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4); see also Amchem, 521 U.S. at 625. For purposes of adequacy, the Court must address whether: (1) “plaintiff’s interests are antagonistic to the interest of the other members of the class” and; (2) “plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.” Kindle v. Dejana, 315 F.R.D. 7, 11 (E.D.N.Y. 2016) (Feuerstein, J.) (quoting Baffa v. Donaldson, Lufkin & Jenretet Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000); see also Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011) (same). The proposed class representatives and their counsel meet Rule 23’s “adequacy” prong. See Kindle, 315 F.R.D. at 11. First, there is no conflict between Plaintiffs and other class members; i.e., there is no sense in which Plaintiffs’ success in this lawsuit could somehow injure other proposed class members, nor is there any sense in which Plaintiffs’ failure in this lawsuit could benefit proposed class members. The adequacy inquiry, moreover, is not implicated by the fact that Plaintiffs are no longer in detention. See Section III (explaining why a class may be certified even if Plaintiffs’ individual claims are moot); see also J.G. ex rel. F.B. v. Mills, 995 F. Supp. 2d 109, 121 (E.D.N.Y. 2011) (Ross, J.) (holding that when named plaintiffs were

1338214.7

-17-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 25 of 32 PageID #: 1166

discharged from custody it did not “render them inadequate to represent the interests of the class”).6
Second, there can be no serious doubt that Plaintiffs and their counsel will “vigorously pursue the claims of the class.” Toure v. Cent. Parking Sys., No. 05- 5237, 2007 WL 2872455, at *7 (S.D.N.Y. Sept. 28, 2007) (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006)); see also Sykes, 780 F.3d at 80. Proposed class counsel includes many of the most experienced immigration experts in the country, with significant experience prosecuting class actions in the immigration context.
E. General applicability. As a final requirement, Plaintiffs must show that the Defendants have “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). This requirement is readily met where, as here, plaintiffs challenge a centralized policy that they allege violates the rights of a broad class of people. See, e.g, Amchem, 521 U.S. at 614 (“Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of Rule 23(b)(2) classes).7 It is for this reason that courts regularly certify classes

6 See also, e.g., Williams v. Conway, 312 F.R.D. 248, 253-254 (N.D.N.Y. 2016) (rejecting notion that pretrial detainee was inadequate to represent class of detainees simply because he had been released); Kazarov, 2003 WL 22956006, at *7 (plaintiff was adequate to represent class of aliens challenging prolonged detention despite mootness of individual claims because “[b]oth he and class members have allegedly been harmed by the unconstitutional government procedures and have the same interest in stopping the practices and procedures currently in place”) (quotation and citation omitted). 7 See also, e.g., Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997) (district court did not abuse discretion in certifying Rule 23(b)(2) class where plaintiffs challenged “central and systemic failures”); Comer , 37 F.3d at 796 (“pattern of racial discrimination cases for injunctions . . . are the ‘paradigm’ of Fed. R. Civ. P. 23(b)(2) class action cases”) (citation omitted); Hill v. City of New York, 136 F. Supp. 3d 304, 357 (E.D.N.Y. 2015) (“Rule 23(b)(2) is
Footnote continued on next page

1338214.7

-18-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 26 of 32 PageID #: 1167
challenging immigration rules or policies. See, e.g., Rodriguez, 591 F.3d at 1125-1126 (affirming class certification where class of aliens challenged long-term detention because “all class members seek the exact same relief as a matter of statutory or, in the alternative, constitutional right”).8
CONCLUSION For the above reasons, Amici respectfully submit that this Court has the power to employ the class certification procedure to manage litigation of Plaintiffs’ claims and to order class-wide relief, and should exercise that power to certify the claims regardless of whether Plaintiffs’ individuals claims have become moot.

Footnote continued from previous page designed to assist and is most commonly relied upon by litigants seeking institutional reform in the form of injunctive relief.”) (quotation and citation omitted). 8 See also, e.g., Campos, 188 F.R.D. at 661 (class of legal permanent residents met 23(b)(2) requirement where all members “were denied the [medical] waivers based on the same, allegedly illegal, policies and practices,” and they sought injunctive relief as remedy); Orantes-Hernandez, 541 F. Supp. at 371 (plaintiffs who were “challenging various procedures and practices of the INS which, they allege, are based on grounds generally applicable to Salvadoran aliens” satisfied Rule 23(b)(2)); Perez-Funez, 611 F. Supp. at 998 (Rule 23(b)(2) satisfied in challenge to memorandum “establish[ing] an official INS policy by which the INS has acted on grounds ‘generally applicable to the class’”); Kazarov, 2003 WL 22956006 at *7 (certification appropriate because “Petitioner does not challenge individual detention decisions, but rather the procedures used by Respondent toward the class as a whole”).

1338214.7

-19-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 27 of 32 PageID #: 1168

Dated: February 16, 2016

Respectfully submitted,

/s/

_______

Jonathan D. Selbin

jselbin@lchb.com

Jonathan D. Selbin Daniel E. Seltz Jason L. Lichtman LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013 212.355.9500

Kelly M. Dermody Yaman Salahi Michelle A. Lamy LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111 415.956.1008

Andrew R. Kaufman LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP 150 4th Ave N #1650 Nashville, TN 37219 615.313.9000

F. Paul Bland, Jr. Public Justice, P.C. 1825 K. Street, Suite 200 Washington, DC 20006 202.797.8600

Jennifer Bennett Public Justice, P.C. 555 12th Street, Suite 1620 Oakland, CA 94607 510.622.8150

1338214.7

-20-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 28 of 32 PageID #: 1169
Jocelyn Larkin Lindsay Nako Impact Fund 125 University Ave., Suite 102 Berkeley, CA 94710 510.845.3473
Attorneys for Amici Curiae

1338214.7

-21-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 29 of 32 PageID #: 1170
CERTIFICATE OF SERVICE I hereby certify that on February 16, 2016, I caused this document to be served via ECF, which will provide notice to all counsel of record.
Jason L. Lichtman jlichtman@lchb.com

1338214.7

-22-

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 30 of 32 PageID #: 1171
EXHIBIT A

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 31 of 32 PageID #: 1172
United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974) (affirming use of class action device in case involving challenge to a New York statute that resulted in longer sentences for young adults than they would have received as adults).
Bijeol v. Benson, 513 F.2d 965, 968 (7th Circ. 1975) (affirming use of class action procedure where petitioners alleged a failure by the United States Parole Board to hold a meaningful parole hearing prior to the expiration of one-third of their sentences).
United States ex rel. Morgan v. Sielaff, 546 F.2d 218, 221 (7th Circ. 1976) (allowing use of representative procedure in case challenging lower standard used in commitment proceedings).
Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016) (affirming grant of class certification in habeas proceeding challenging mandatory detention under the Immigration and Nationality Act).
Rodriguez v. Hayes, 591 F.3d 1105, 1121-26 (9th Cir. 2009) (reversing denial of class certification in case seeking habeas relief for a class of detainees who had been or would be held for more than six months without a bond hearing while engaged in immigration proceedings).
Ali v. Ashcroft, 346 F.3d 873, 890 (9th Circ. 2003), vacated on other grounds by Ali v. Gonzales, 421 F.3d 795 (9th Cir. 2003) (affirming class certification of nationwide class of Somali aliens, who sought to enjoin removal to Somalia, and affirming permanent injunction).
Mead v. Parker, 464 F.2d 1108, 1112–13 (9th Cir. 1972) (holding that class action was appropriate in case involving allegations of inadequate prison library, in part because “the relief sought can be of immediate benefit to a large and amorphous group. In such cases, it has been held that a class action may be appropriate”).
Cox v. McCarthy, 829 F.2d 800, 804 (9th Cir. 1987) (approving use of class device in habeas action challenging constitutionality of amendments to California Penal Code).
Williams v. Richardson, 481 F.2d 358, 361 (8th Cir. 1973) (reversing district court conclusion that a habeas class action could never be appropriate).
LoBue v. Christopher, 82 F.3d 1081, 1085 (D.C. Cir. 1996) (rejecting argument that there is no equivalent to class actions in habeas proceedings).
Bertrand v. Sava, 535 F. Supp. 1020, 1024-25 (S.D.N.Y. 1982) (granting class certification in habeas proceeding involving Haitian detainees), rev’d on other grounds, 684 F.2d 204 (2d Cir. 1982).
1
1339094.2

Case 1:17-cv-00480-CBA Document 121 Filed 02/16/17 Page 32 of 32 PageID #: 1173
Gesicki v. Oswald, 336 F. Supp. 371, 374 (S.D.N.Y. 1971) (three-judge panel) (certifying class in case brought under state Habeas Corpus Act and enjoining enforcement of unconstitutional statute governing juvenile punishment). Lacy v. Butts, No. 1:13-cv-811-RLY-DML, 2015 WL 5775497 (S.D. Ind. Sept. 30, 2015) (certifying class in habeas proceeding involving constitutional challenge to aspects sex offender statute). Kazarov v. Achim, No. 1:02-cv-5097, 2003 WL 22956006, at *3 n.8 (N.D. Ill. Dec. 12, 2003) (granting class certification in case involving challenge to continuing detention following removal order). Burgener v. California Adult Authority, 407 F. Supp. 555, 556 n.1 (N.D. Cal. 1976) (“It is well established that a class action may be appropriate in habeas corpus proceedings under some circumstances.”). Adderly v. Wainwright, 58 F.R.D. 389, 401 (M.D. Fla. 1972) (reviewing habeas petition from capital defendants and holding that “it would have constituted an effective denial of an opportunity for habeas corpus relief for this Court to have ruled adversely to petitioners' motion to proceed as a class in accordance with Rule 23”). Fernandez-Roque v. Smith, 91 F.R.D. 117, 122 (N.D. Ga. 1981) (granting class certification in habeas case brought on behalf of class of Cuban citizens held in detention). Streicher v. Prescott, 103 F.R.D. 559 (D.D.C. 1984) (granting class certification in habeas proceeding involving civil commitment procedures).
2
1339094.2

 </s> Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 1 of 29 PageID #: 1205

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------- X

HAMEED KHALID DARWEESH and

:

HAIDER SAMEER ABDULKHALEQ

:

ALSHAWI,

:

: Case No. 17-cv-480 (CBA)

on behalf of themselves and others similarly

:

situated,

:

:

Petitioners,

:

:

v.

:

:

DONALD TRUMP, President of the United

:

States; U.S. DEPARTMENT OF HOMELAND :

SECURITY (“DHS”); U.S. CUSTOMS AND :

BORDER PROTECTION (“CBP”); JOHN

:

KELLY, Secretary of DHS; KEVIN K.

:

MCALEENAN, Acting Commissioner of CBP; :

and JAMES T. MADDEN, New York Field

:

Director, CBP,

:

:

Respondents.

:

---------------------------------------------------------- X

AMICUS CURIAE BRIEF OF THE ANTI-DEFAMATION LEAGUE

Dated: February 16, 2017

FRANKFURT KURNIT KLEIN & SELZ PC

Of Counsel: Jeremy S. Goldman Caren Decter Jessica Smith Rayna Lopyan Lily Landsman-Roos Lakendra Barajas

By: /s/ John B. Harris Counsel for Amicus Curiae ADL Frankfurt Kurnit Klein & Selz, P.C. 488 Madison Avenue New York, NY 10022 (212) 705-4823 jharris@fkks.com

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 2 of 29 PageID #: 1206

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST....................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 ARGUMENT .................................................................................................................................. 3
I. America’s Aspirations as a Refuge for the Oppressed ........................................... 3 II. America is at Its Best When It Honors Its Commitment to Its Core Values .......... 7 III. When America Closed Its Doors and Allowed Its Core Values to be
Compromised, The Country Later Looked Back in Shame.................................. 11 A. The St. Louis and Jewish Refugees During the Holocaust ....................... 11 B. The Chinese Exclusion ............................................................................. 15 C. The Japanese Internment........................................................................... 19 CONCLUSION............................................................................................................................. 21 APPENDIX................................................................................................................................... 23

i

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 3 of 29 PageID #: 1207
TABLE OF AUTHORITIES Page(s)
Cases Aziz v. Trump,
No. 117CV116LMBTCB, 2017 WL 580855 (E.D. Va. Feb. 13, 2017)..................................21 Green Party of N.Y. State v. N.Y. State Bd. of Elections,
389 F.3d 411 (2d Cir. 2004).......................................................................................................3 Washington v. Trump,
No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 9, 2017) ........................................................21 Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008).......................................................................................................................3 Statutes 50 U.S.C. § 4202......................................................................................................................19, 20 Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882) (repealed 1943) ..........................15, 16, 17, 18 Civil Liberties Act, 50 U.S.C. § 4201 et seq..................................................................................20 Displaced Persons Act of 1948 (Pub.L. 80–774).............................................................................7 Geary Act, ch. 60, 27 Stat. 525 (1892) (repealed 1943) ................................................................17 Immigration and Nationality Act of 1965 (H.R. 2580; Pub.L. 89–236, 79 Stat.
911, enacted June 30, 1968).......................................................................................................9 Refugee Act of 1980 (Public Law 96-212)......................................................................................9 Scott Act (1888), ch. 1064, 22 Stat. 504 (1888) (repealed 1943) ..................................................17
ii

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 4 of 29 PageID #: 1208
STATEMENT OF INTEREST The Anti-Defamation League (“ADL”) respectfully submits this brief as Amicus Curiae in support of the relief sought by Petitioners declaring invalid portions of the Executive Order dated January 27, 2017, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive Order”).1 Because of its history fighting discrimination, including prejudice toward immigrants and religious minorities, ADL can provide unique and important insights for the Court in addressing the Executive Order and in considering the historical context of the Executive Order’s provisions limiting or barring entry into the United States of refugees, as well as persons coming from seven majority-Muslim nations.2 Accordingly, Amicus asks this Court to grant Petitioners’ motion for a preliminary injunction enjoining enforcement of certain portions of the Executive Order. 3

1

The Court previously granted ADL’s motion for leave to file an amicus brief. See Mot.

for Leave to File Amicus Brief, ECF No. 33; Order, dated Feb. 3, 2017.

2

ADL is aware that the parties dispute whether the Executive Order constitutes a ban of

Muslims as opposed to a ban of persons from certain countries that the United States believes

pose a terrorist threat. Inasmuch as the vast majority of the persons affected by the Executive

Order are of the Muslim faith and inasmuch as the President has indicated that the ban does not

apply in the same manner to Syrians of the Christian faith, ADL considers the Executive Order

to implicate religion in a significant manner.

3

Amicus Curiae states that no counsel for any party authored this brief in whole or in part and no

entity or person, aside from Amicus and their counsel, made any monetary contribution toward the

preparation or submission of this brief.

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 5 of 29 PageID #: 1209

BACKGROUND The United States is a nation dedicated to the ideals of equality, liberty and justice. (See infra Section I.). Adhering to these principles under changing domestic and international circumstances often is a work in progress. Throughout the history of the United States, and frequently with respect to immigration, our ideals have been tested. Sometimes the nation rises to meet the challenge, upholding the values that make America exceptional. (See infra Section II.) At other times, when prejudice and fear predominate over reason and compassion, we falter, often with devastating consequences. (See infra Section III.) We turned our backs on the St. Louis, a ship with nearly 1,000 Jews fleeing from Nazi Germany, condemning hundreds of them to their deaths; we passed laws that overtly excluded and discriminated against the Chinese; and we rounded up more than 100,000 Japanese Americans and interned them in prison camps in the 1940s. In each instance, when we later realized that we had strayed from our principles, we were left to apologize to the people who suffered, or to their descendants, or to the memory of those who perished without descendants, in each case promising to learn from our mistakes and not to repeat them. ADL was created at a time when fear and prejudice against Jews were so great that a Jewish man, Leo Frank, was convicted of murder after a trial marked by overt anti-Semitism and then dragged from his prison cell and lynched in 1915.4 ADL regularly confronts discrimination

4

See Wendell Rawls, Jr., After 69 Years of Silence, Lynching Victim is Cleared, N.Y.

TIMES, Mar. 8, 1982. After the lynching, armed mobs ran through the streets of Atlanta, forcing

Jewish businesses to shutter their doors and about half of Georgia’s Jewish population to flee.

Sixty years later, the State of Georgia posthumously pardoned Frank on the grounds that the

State failed to protect him while he was in its custody. See STATE BOARD OF PARDONS AND

PAROLES, Pardon of Leo Frank (Mar. 11, 1986),

http://www.gpb.org/files/georgiastories/nsouthfrank176.jpg. See also Leonard Dinnerstein, Leo

Frank Case, NEW GEORGIA ENCYCLOPEDIA,

2

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 6 of 29 PageID #: 1210

against perceived outsiders, foreigners and strangers. As an organization founded by

immigrants, as an organization sworn to protect the interests of religious and ethnic minorities,

ADL believes that when our nation’s values are threatened, we are duty-bound to look back at

the founding principles that propelled this nation of immigrants – in the hope that future

generations can celebrate our resolve.

ARGUMENT

As the U.S. Supreme Court has held, a petitioner seeking a preliminary injunction must

demonstrate that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm

in the absence of preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).5 With this brief, ADL seeks to provide important insight regarding how the Executive

Order, absent injunctive relief, will almost certainly cause irreparable harm, similar to other

harms for which the United States has later apologized when it failed to live up to values and the

promise embodied in the Constitution. ADL also seeks to demonstrate that the public interest

lies squarely in support of injunctive relief, as America has always been at its best when it opens

its doors to refugees and immigrants.

I. America’s Aspirations as a Refuge for the Oppressed

The promise of America has been manifest since before the American Revolution. John

Winthrop, while still on his transatlantic voyage to the New World, admonished the future

http://www.georgiaencyclopedia.org/articles/history-archaeology/leo-frank-case (last visited Feb. 7 2017).

5

See also Green Party of N.Y. State v. N.Y. State Bd. of Elections, 389 F.3d 411, 418 (2d

Cir. 2004) (“To obtain a preliminary injunction the moving party must show, first, irreparable

injury, and, second, either (a) likelihood of success on the merits, or (b) sufficiently serious

questions going to the merits and a balance of hardships decidedly tipped in the movant’s

favor.”)

3

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 7 of 29 PageID #: 1211

colonists of Massachusetts to always remember that their new community would be “as a city upon a hill,” with the entire world watching.6 In fulfilling this vision, the country welcomed in its early years those disfavored and persecuted in their homelands based on their religious beliefs, including the Pilgrims, the Puritans and the Huguenots. Since then, our nation’s wisest leaders have been guided by Winthrop’s inspiring vision and have strived toward a more inclusive democracy.
The birth of the United States came in part because the Founders sought to cast off the shackles of Europe’s endless religious wars and sectarian conflict in order to form a more perfect union. In beseeching the country to separate from England, Thomas Paine recognized that Europe was “too thickly planted with kingdoms to be long at peace” and believed the discovery of America had a divine purpose: “to open a sanctuary to the persecuted in future years, when home should afford neither friendship nor safety.”7 Seven months later, the Declaration of Independence enunciated the “self-evident truths” that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Less quoted from the Declaration is the Founders’ burning grievance that the English King had restricted free immigration, having “endeavoured to prevent the population of these States; for that reason obstructing the Laws for the Naturalization of Foreigners [and] refusing to pass others to encourage their migrations hither.”8
After the United States won its independence, it faced the challenge of designing laws that embodied the enlightened vision of the new nation. In 1785, James Madison published

6

John Winthrop, A Model of Christian Charity (1630).

7

Thomas Paine, Common Sense (Jan. 10, 1776).

8

Declaration of Independence (July 4, 1776).

4

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 8 of 29 PageID #: 1212

“Memorial and Remonstrance Against Religious Assessments” in opposition to a bill proposed
to Virginia’s General Assembly that would have levied a modest tax to support Christian
education.9 Madison warned that any measure, no matter how slight, that gave a preference to
one religion over another would constitute “a dangerous abuse of power” and would betray the
vision of America as a shining city upon a hill:
Because the proposed establishment is a departure from that generous policy, which, offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an Asylum to the persecuted, it is itself a signal of persecution. . . . Distant as it may be in its present form from the Inquisition, it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthrophy (sic) in their due extent, may offer a more certain repose from his Troubles.10
Virginia recognized Madison’s wisdom. It rejected the establishment bill and instead
adopted Thomas Jefferson’s “Statute for Religious Freedom,” which firmly separated church
from state and enshrined the principles of religious liberty for all.11 When Madison went to the
Constitutional Convention in 1787, he fought for Jefferson’s view to become the law of the land,
and it became a bedrock of the rights confirmed by the First Amendment.
Although the makeup of the United States was overwhelmingly Christian at its birth, our
Founders were clear that the nation’s new laws prohibiting religious discrimination extended to
people of all faiths and backgrounds. When Jefferson later reflected on his Statute for Religious

9

James Madison, Memorial and Remonstrance against Religious Assessments ¶ 9 (Jun. 20,

1785).

10 Id. (emphasis added).

11 Virginia’s Statute for Religious Freedom (Jan. 16, 1786)

5

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 9 of 29 PageID #: 1213

Freedom, he extolled the broad application of the law, which was evidence that the legislators “meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and the Mahometan [Muslim], the Hindoo [Hindu], and every Infidel of every denomination.”12
The American values of accepting people into this country regardless of their faith, race or nationality have been celebrated by our leaders. In 1855, Abraham Lincoln confronted the burgeoning anti-immigrant “Know Nothing” movement, soundly rejecting the Know Nothings’ vision of an America in which “all men are created equal, except negroes, and foreigners, and Catholics.”13 He said of the movement: “When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty — to Russia, for instance, where despotism can be taken pure. . . .”14
The vision of the “shining city on the hill” has also inspired poets. In 1856, Walt Whitman wrote: “These States are the amplest poem, here is not merely a nation but a teeming Nation of nations.”15 Emma Lazarus’ immortal sonnet, enshrined on the pedestal of the Statue of Liberty, urges “ancient hands” to give America “your tired, your poor, your huddled masses yearning to breathe free. . . . Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!”16
These values have endured to the modern day. In his 1959 book, A Nation of Immigrants, future President John F. Kennedy studied the history of immigration in this country,

12 Thomas Jefferson, Autobiography, Works 1:71 (1821).

13 Abraham Lincoln, Letter to Joshua F. Speed (Aug. 24, 1855).

14

Id.

15 Walt Whitman, Preface to Leaves of Grass (1855).

16 Emma Lazarus, The New Colossus (1883).

6

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 10 of 29 PageID #: 1214
both in terms of those subject to religious persecution and those facing other overpowering hardship. He wrote: “America has always been a refuge from tyranny. As a nation conceived in liberty, it has held out to the world the promise of respect for the rights of man.”17
On the eve of his election as President in 1980, Ronald Reagan also took inspiration from Winthrop’s vision of America:
These visitors to that city on the Potomac do not come as white or black, red or yellow; they are not Jews or Christians; conservatives or liberals; or Democrats or Republicans. They are Americans awed by what has gone before, proud of what for them is still . . . a shining city on a hill.18 II. America is at Its Best When It Honors Its Commitment to Its Core Values There are numerous examples where the United States has met its aspirations as Winthrop’s “shining city on the hill,” opening itself to “anyone with the will and the heart to get here.”19 At its best, the United States has been a beacon of hope for refugees from war-torn countries, victims of religious persecution, natural disasters or other emergencies, fulfilling what President Kennedy described in A Nation of Immigrants as the “natural humanitarian impulses of the American people which is in keeping with our traditions of shelter to the homeless and refuge for the oppressed.”20 Indeed, many of these refugees have contributed immeasurably to the fabric of America. With the Truman Directive in 1945, and the Displaced Persons Act of 1948, the United States – for the first time since its founding – began explicitly to focus on its identity as a
17 John F. Kennedy, A Nation of Immigrants 7 (Harper Perennial, January 2008). 18 Ronald Reagan, Election Eve Address, (Nov. 3, 1980). 19 Ronald Reagan, Farewell Address to the Nation, (Jan. 11, 1989). 20 Kennedy, supra note 16 at 46.
7

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 11 of 29 PageID #: 1215
sanctuary for those fleeing persecution, as the first Americans had done hundreds of years earlier.21 President Truman led the assistance and reconstruction effort to resettle hundreds of thousands of European Jews and other Europeans displaced from their home countries who could not return in the aftermath of World War II.22
These new laws gave truth to Thomas Paine’s prophecy that the United States would “open a sanctuary to the persecuted in future years, when home should afford neither friendship nor safety.” The refugees welcomed to the United States during or after World War II have made immeasurable contributions to politics, science, literature, music, art, and social and scientific studies. Refugees from that period include Madeleine Albright, Hannah Arendt, Bela Bartok, Marc Chagall, Marlene Dietrich, Albert Einstein, Enrico Fermi, Henry Kissinger, Raphael Lemkin, Thomas Mann, Vladimir Nabokov, Claude Levi-Strauss, Dr. Ruth Westheimer, and Billy Wilder. American culture and science stand on the shoulders of many of these contributions.
With the onset of the Cold War, Congress began assisting groups of refugees from Communist regimes including those seeking freedom from the Soviet Union, Cuba, Hungary, Poland, and Yugoslavia, as well as those fleeing Southeast Asia after the Vietnam War. The openness to asylum seekers reflected in these efforts also demonstrated a growing recognition that many refugees have significant education, skills, strong family structures and commitment to
21 David W. Haines, “Learning From our Past: The Refugee Experience in the United States,” AMERICAN IMMIGRATION COUNCIL, http://www.americanimmigrationcouncil.org/research/refugee-experience-united-states (last visited Feb. 7, 2017). 22 Id. In so doing, as set forth below, the United States began the process of making amends for the tragic consequences of its turning away Jewish refugees during World War II, dooming many of them to death or excruciating years in concentration camps.
8

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 12 of 29 PageID #: 1216
hard work and success that make them ideal new citizens.23 Examples of notable refugees that came to the United States from this period include: Sergey Brin, Joseph Brodsky, Gloria Estefan, Milos Forman, Wyclef Jean, Miriam Makeba, Thomas Peterffy, Regina Spektor and David Tran.
In the wake of the publication of A Nation of Immigrants, Congress enacted the Immigration and Nationality Act of 1965, which allowed increased numbers of people to migrate to the United States from South America, Asia, Africa, the Middle East, and Southern and Eastern Europe, abolishing the previous quotas that has been set based on national origin. In 1968, the United States was one of the first countries to sign the United Nations Protocol Relating to the Status of Refugees, a key treaty in international refugee law. The 1974 JacksonVanik Amendment ultimately permitted approximately 500,000 Jews, evangelical Christians and Catholics to escape religious persecution in the former Soviet Union by coming to the United States. And in 1980 Congress signed the Refugee Act which standardized the resettlement process and services for all refugees admitted to the United States.
Since the 1980s, the United States has resettled refugees from Darfur fleeing genocide and violence; refugees from Bhutan forced out of their country; and Syrian, Iraqi and Afghan refugees displaced by war. In addition, the U.S. has facilitated the naturalization of Hmong veteran refugees who served in Laos in support of U.S. forces and during the Vietnam War;24 assisted the children of Vietnamese re-education camp survivors through the “McCain Amendment;” assisted former Soviet and Indochinese nationals with a credible fear of
23 Haines, supra note 20. 24 William J. Clinton, “Statement on Signing the Hmong Veterans Naturalization Act of 2000” (May 26, 2000).
9

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 13 of 29 PageID #: 1217

persecution through the “Lautenberg Amendment;” and assisted Iranian religious minorities through the “Specter Amendment.”25 Since 1975, the US has settled over 3 million refugees.26
It should come as no surprise, then, that more than 40 percent of Fortune 500 companies were founded by recent immigrants or their children (even though such immigrants account for roughly 10.5 percent of the U.S. population); or that the revenue generated by these companies is greater than the GDP of every country in the world outside the U.S. except China and Japan; or that successful global companies founded by American immigrants and refugees or their children span all sectors of the economy, including some of the most valuable brands in the world (Apple, Google, eBay, AT&T, General Electric, IBM, McDonald’s).27 At least 18 percent of all scientists living in the U.S., of which there are millions, are immigrants or refugees,28 and over 25% of all physicians and surgeons in the United States are born abroad.29 And as of 2016, roughly 2 million veterans of the U.S. Armed Forces living in the U.S. — of a total 18.8 million

25 Andorra Bruno, CONG. RESEARCH SERV., RL31269, “Refugee Admissions and Resettlement Policy” (Nov. 30, 2016).

26 Ruth Igielnick and Jens Manuel Krogstad, “Where Refugees to the U.S. Come From,” PEW RESEARCH CENTER, (Feb. 3, 2017), http://www.pewresearch.org/facttank/2017/02/03/where-refugees-to-the-u-s-come-from/.

27

PARTNERSHIP FOR THE NEW AMERICAN ECONOMY, “The ‘New American’ Fortune 500,”

(June 2011), http://www.renewoureconomy.org/sites/all/themes/pnae/img/new-american-

fortune-500-june-2011.pdf.

28 Flora Lan, Katherine Hale, and Emilda Rivers, “Immigrants’ Growing Presence in the U.S. Science and Engineering Workforce: Education and Employment Characteristics in 2013,” NATIONAL CENTER FOR SCIENCE AND ENGINEERING STATISTICS (Sept. 2015), https://www.nsf.gov/statistics/2015/nsf15328/nsf15328.pdf.

29 Nicole Fisher, “25% of Physicians Are Born Outside the U.S. Can Immigration Reform Fix The Shortage?” FORBES: PHARMA & HEALTHCARE (Jul. 12, 2016), http://www.forbes.com/sites/nicolefisher/2016/07/12/25-of-docs-are-born-outside-of-the-u-scan-immigration-reform-solve-our-doc-shortage/#446de1bc702b.

10

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 14 of 29 PageID #: 1218
— are refugees/immigrants or have refugee/immigrant parents.30 As President Kennedy observed, “[t]here is no part of our nation that has not been touched by our immigrant background.”31 The Executive Order betrays that history, and would exclude the talents, ideas and work ethic of immigrants and refugees who, just as with generations past, would help to build and protect our nation and strengthen our economy. III. When America Closed Its Doors and Allowed Its Core Values to be Compromised,
The Country Later Looked Back in Shame In sharp contrast to the times when the United States has shown its “natural humanitarian impulses,” at other times the country has closed itself to others and has succumbed to fear or bigotry, with tragic consequences. Sometimes the victims of this xenophobia and prejudice were Jews (the St. Louis tragedy and the denial of visas) or other religious minorities, sometimes they were from nations that were regarded as undesirable (the Chinese exclusion) and sometimes they were groups the government suspected as disloyal (the Japanese internment during World War II). In each case, the United States apologized years later, after it was too late. A. The St. Louis and Jewish Refugees During the Holocaust The tragedy of the vessel St. Louis illustrates the devastating consequences that can result when the United States turns its back on refugees in need. In May 1939, on the eve of World War II and after Kristallnacht,32 the St. Louis left Hamburg, Germany, carrying 937 passengers,
30 Jie Song and Jeanne Batalova, “Immigrant Veterans in the United States,” MIGRATION POLICY INSTITUTE (Oct. 13, 2016), http://www.migrationpolicy.org/article/immigrant-veteransunited-states. 31 Kennedy, supra note 16, at 3. 32 Kristallnacht, or the “Night of Broken Glass,” occurred in November 1938, when almost 100 Jews were murdered, countless more were attacked, and as many as 30,000 Jewish men were arrested and sent to concentration camps. See THE HOLOCAUST ENCYCLOPEDIA, UNITED STATES
11

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 15 of 29 PageID #: 1219

nearly all of whom were Jews fleeing Nazi persecution. The ship was headed to Havana, Cuba with the hope of having its passengers granted sanctuary in the United States.
Prior to the ship’s departure, most of the Jewish passengers had obtained valid paperwork permitting their entry to Cuba and had also applied for U.S. visas, planning to stay in Cuba only until their entry to the U.S. was approved. By the time the St. Louis arrived in Cuba on May 27, 1939, however, the Cuban president had invalidated most of the passengers’ travel certificates.33 While United States-based Jewish organizations negotiated with Cuban officials to persuade them to admit the other passengers, the United States refused to formally intercede on the refugees’ behalf or publicly pressure the Cuban government to admit them.34
After negotiations with Cuba failed, the St. Louis headed towards Miami in June 1939, coming within sight of the Florida coastline. Despite pleas from passengers on board, President Roosevelt and the State Department refused to accept the Jewish refugees into the United States,35 reflecting anti-immigrant and anti-Semitic sentiments prevailing at the time.36 A State

HOLOCAUST MEMORIAL MUSEUM, “Kristallnacht,” https://www.ushmm.org/wlc/en/article.php?ModuleId=10005201. (Last visited Feb. 7, 2017).

33

THE HOLOCAUST ENCYCLOPEDIA, UNITED STATES HOLOCAUST MEMORIAL MUSEUM,

“Voyage of the St. Louis,” https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267.

(Last visited Feb. 7, 2017).

34 Id. See also Dara Lind, How America’s Rejection of Jews Fleeing Nazi Germany Haunts Our Refugee Policy Today, VOX (Jan. 27, 2017, 8:12 AM). http://www.vox.com/policy-andpolitics/2017/1/27/14412082/refugees-history-holocaust.

35 Kristine Guerra, What the U.S. Learned from Turning Away Refugees who Fled the Nazis, THE WASHINGTON POST (Jan. 29, 2017) https://www.washingtonpost.com/news/postnation/wp/2017/01/29/what-the-u-s-learned-from-turning-away-refugees-who-fled-thenazis/?utm_term=.e91085b6c047.

36 A Gallup poll taken in January 1939 asked Americans if the government should allow 10,000 refugee children, mostly Jewish, from Germany to be taken care of in American homes; 61 percent were opposed. See Ishaan Tharoor, What Americans Thought of Jewish Refugees on

12

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 16 of 29 PageID #: 1220
Department telegram to a passenger on the ship explained the government’s position that the passengers must “await their turns on the [visa] waiting list and qualify for and obtain immigration visas before they may be admissible into the United States.”37
Ultimately, the United States refused entry to the passengers of the St Louis, forcing it to sail back to Europe.38 Historians estimate that more than a quarter of the St. Louis passengers – 254 people – were killed in the Holocaust, including a number at Auschwitz, after being refused entry to the U.S.39
In April 2009, at a commemoration for Yom HaShoah (Holocaust Remembrance Day) held at the U.S. Capitol before the President and members of Congress, Fred S. Zeidman, chairman of the U.S. Holocaust Memorial Council, recalled the “infamous ship called the St. Louis” and reminded those gathered of the “shameful result” and the consequences of inaction.40 Three years later, the United States government issued a formal apology for the country’s refusal

the Eve of World War II, THE WASHINGTON POST (Nov. 17, 2015) https://www.washingtonpost.com/news/worldviews/wp/2015/11/17/what-americans-thought-ofjewish-refugees-on-the-eve-of-world-war-ii/?utm_term=.a67eb4b68817.

37 See “Voyage of the St. Louis,” supra note 32.

38 Recent images of refugee-seekers, having disembarked at U.S. airports after days-long journeys, being immediately sent back to the countries from which they had fled, unavoidably call to mind the passengers of the St. Louis who were turned away within sight of U.S. sanctuary. See Appendix.

39 See “Voyage of the St. Louis,” supra note 32.

40

AMERICAN JEWISH JOINT DISTRIBUTION COMMITTEE ARCHIVES, “Fred S. Zeidman’s

Remarks, Days of Remembrance Commemoration” (Apr. 23, 2009),

http://archives.jdc.org/assets/documents/stlouis_fredszeidmanremarks2009.pdf.

13

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 17 of 29 PageID #: 1221
to provide refuge for the Jewish passengers aboard the St. Louis.41 Addressing the 14 surviving passengers, a State Department official stated: “To the survivors of the MS St. Louis, on behalf of the president and Secretary of State, I am honored to say what we should’ve said so long ago, welcome.”42 (Archival photographs from the St. Louis are contained in the Appendix).
The passengers of the St. Louis were not the only victims of America’s refusal to grant
visas to Jews and other minorities during the Holocaust. Before the St. Louis sailed, Congress rejected a bill that would have allowed 20,000 imperiled German children to settle in this country. Opponents took an “America-First” approach to reject the proposal, arguing that America should first focus on its own needy and homeless citizens. The wife of the United States immigration commissioner, Laura Delano Houghteling, refused to be swayed by the children’s vulnerability, testifying that “20,000 charming children would all too soon grow into 20,000 ugly adults.”43 Countless Jews denied visas to enter the United States ultimately perished in Nazi concentration camps, including the Dutch teenager Anne Frank.44 Historian Richard

41 Kamrel Eppinger, State Department apologizes to Jewish refugees, SCRIPPS HOWARD FOUNDATION WIRE (Sep. 26, 2012) http://www.shfwire.com/state-department-apologizes-jewishrefugees/.

42

Id.

43 See Lind, supra note 33.

44 In 1938, Otto Frank first applied for immigrant visas for himself, his wife Edith, and their two daughters Margot and Anne. See Richard Breitman, Blocked by National Security Fears?: The Frank Family and Shifts in American Refugee Policy, 1938-1941, YIVO INSTITUTE FOR JEWISH RESEARCH (Feb. 14, 2007), https://www.yivo.org/cimages/richardbreitman-ottofrankwhitepaper.pdf?c=. The family was placed on a waiting list, which by 1939 had grown to include 300,000 individuals. Id. at 2. Despite having multiple people willing to provide affidavits for the Frank family, Otto was met with additional regulations, including proof of booked transportation to the U.S., verification that no close relatives remained in German territories, and the specter of the German refugee quota. Id. at 5. Ultimately, the Frank family

14

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 18 of 29 PageID #: 1222
Brietman reminds us that if not for an immigration policy steeped in fear, an elderly Anne Frank could still be living in the United States today.45 Instead she was murdered at Bergen-Belsen, made immortal by the teenage diary that survived her. The Executive Order – signed on Holocaust Remembrance Day – ignores the tragic lessons our Nation learned from turning our back on Jewish refugees during World War II, and would again close America’s doors to some of the world’s most vulnerable refugees and immigrants.
B. The Chinese Exclusion In the late 1860s and early 1870s, Chinese immigrants, including both skilled and unskilled laborers, enjoyed easy passage to this country under the terms of a treaty between the United States and China.46 Even with the treaty’s relaxed standards, annual Chinese immigration never exceeded 40,000 people, and in 1890 there were only 107,000 Chinese nationals living in the United States.47 Nevertheless, hostility towards the Chinese escalated within certain portions of the American public, who blamed wage decreases and other economic difficulties on Chinese laborers.48 Although Government leaders initially resisted constituent pressure to stop Chinese

was denied refugee status and Anne, along with her mother and sister, all died in the concentration camps.

45 Elahe Izadi, Anne Frank and her family were also denied entry as refugees to the U.S., WASHINGTON POST, (Nov. 24, 2015), https://www.washingtonpost.com/news/worldviews/wp/2015/11/24/anne-frank-and-her-familywere-also-denied-entry-as-refugees-to-the-u-s/?utm_term=.6e028f50e0dd.

46 See H.R. Res. 683, 114th Cong. (as passed by House, June 18, 2012). See also Kennedy, supra note 16 at 40.

47 Kennedy, supra note 16 at 40.

48

HARVARD UNIVERSITY LIBRARY OPEN COLLECTIONS PROGRAM, Chinese Exclusion Act

(1882), http://ocp.hul.harvard.edu/immigration/exclusion.html (last visited Feb. 7, 2017).

15

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 19 of 29 PageID #: 1223

immigration,49 a “campaign of organized violence against Chinese communities took form, and the hysteria led to public pressure too violent to be resisted.”50
The Chinese Exclusion Act of 1882, signed into law by President Arthur, was the “first federal law ever passed excluding a group of immigrants solely on the basis of race or nationality.”51 The thrust of the Chinese Exclusion Act was that it barred Chinese laborers from entering the United States for 10 years,52 but it also put in place other discriminatory systems, including a registry for all Chinese (including non-laborers) who were then legally present in the United States.53 Additionally, Chinese laborers already in the country would have to obtain a “certificate” to return to the United States, if they ever wanted to leave the country.54 The Act also explicitly prohibited all state and federal courts from naturalizing people of Chinese origin, regardless of whether they were legally in this country.55 These sweeping restrictions were explained only by this statement in the law’s preamble: “in the opinion of the Government of the United States the coming of Chinese laborers to this country endangers the good order of certain localities within the territory thereof[.]”56

49 President Arthur initially vetoed the bill, which he viewed as incompatible with the Burlingame Treaty. See Chester A. Arthur, “Veto of the Chinese Exclusion Act” (Apr. 4, 1882).

50 Kennedy, supra note 16 at 41.

51 S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

52 Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882) (repealed 1943) (hereinafter “Chinese Exclusion Act.”).

53

Id.

54 Id. See also S. J. Res. 23, Res. Ch. 134 (Ca. 2014)

55 Chinese Exclusion Act, § 14. See also S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

56 Chinese Exclusion Act, preamble.

16

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 20 of 29 PageID #: 1224

The Chinese Exclusion Act was followed by a series of other laws designed to exclude the Chinese from the United States, both physically and politically. The Scott Act of 188857 precluded Chinese laborers from leaving and reentering the United States entirely and cancelled all previously issued “certificates” as referenced in the Exclusion Act.58 This action prevented the return of approximately 20,000 Chinese laborers who were abroad and had lawfully-obtained certificates permitting them to re-enter.59 It also froze the migration of an additional 600 Chinese individuals who were en route to the United States at the time of its enactment.60 When the Chinese Exclusion Act was set to expire in 1892, Congress passed the Geary Act,61 which extended Chinese exclusion for another ten years and introduced even more restrictions.62 It was not until 1943 that Congress finally began repealing certain – and eventually all – of these discriminatory laws.63
The repeal of the Chinese exclusionary laws was a first step in re-establishing the ideals of the Founders. In October 2011, the United States Senate finally issued an apology for the Chinese Exclusion Act and other laws.64 A similar report was announced by the United States

57 The Scott Act (1888), ch. 1064, 22 Stat. 504 (1888) (repealed 1943).

58 S. Res. 201, 112th Cong. (as passed by Senate, Oct. 6, 2011). See also H.R. Res. 683, 114th Cong.

59 S. Res. 201, 112th Cong.

60

Id.

61 The Geary Act, ch. 60, 27 Stat. 525 (1892) (repealed 1943).

62 S. Res. 201, 112th Cong.

63

Id.

64

Id.

17

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 21 of 29 PageID #: 1225
House of Representatives65 and, later, by the California State Legislature.66 In each instance, the government noted that the Chinese Exclusion Act and its companion laws were and remain “incompatible with the basic founding principles recognized in the Declaration of Independence that all persons are created equal[.]”67 The announcements expressed a commitment to “diversity in the United States that contributes to the country’s economic, cultural, technological, academic, and political growth[.]”68
In its apology, the California legislature observed: The Chinese Exclusion Act set the precedent for racist foreign and national policy that led to broader exclusion laws and fostered an environment of racism that quickly led to the Jim Crow laws of the 1880s, and further segregation legislation that would tear our nation apart through most of the 20th Century[.]69 Simply put, our nation’s leaders recognized that racism breeds racism, and any governmental policies that conflict with the founding ideals of this country cannot be allowed to stand. The Executive Order is such a policy.

65 H.R. Res. 683, 114th Cong.

66 S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

67 S. Res. 201, 112th Cong. See also S. J. Res. 23, Res. Ch. 134 (Ca. 2014) (pointing out that, “[p]aradoxically, the very same year that the Chinese Exclusion Act was passed, financing abroad was completed for the Statute of Liberty. . . . While the Statute of Liberty was being built, legislators were contradicting those very ideals by discriminating against Chinese immigrants and lobbying Congress to do the same”).

68 S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

69

Id.

18

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 22 of 29 PageID #: 1226

C. The Japanese Internment The internment of Japanese-Americans was authorized by Executive Order 9066,70 which President Roosevelt issued in early 1942, 10 weeks after the Pearl Harbor attack. Executive Order 9066 gave to the Secretary of War and the military commanders to whom he delegated authority, the power to exclude any and all persons, citizens and aliens from designated areas in order to provide security against sabotage and espionage.71 The Order makes no reference to the Japanese, just as the current Executive Order does not reference Muslims. However, within a week of the issuance of the order, Lt. General John L. DeWitt issued the first of 108 relocation orders resulting in the forcible evacuation of approximately 120,000 Japanese Americans, including 70,000 citizens, to internment camps in desolate areas of the United States for the duration of World War II.72 The justification for Executive Order 9066 was “military necessity.”73 However, Congress has since acknowledged that “these actions were carried out without adequate security reasons and . . . were motivated largely by racial prejudice, wartime hysteria, and a failure of political leadership.”74 This conclusion was bolstered by the fact that no effort was made to

70 7 Fed. Reg. 1407 (Feb. 19, 1942).

71

Id.

72 See Roger Daniels, Concentration Camps USA: Japanese Americans and World War II 33, 104 (1972).

73

U.S. COMM’N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, REPORT:

PERSONAL JUSTICE DENIED at 6-8 (96th Cong.) (1982).

74 50 U.S.C. § 4202. Anti-Japanese bias was palpable: polls taken in 1944 indicated that more than 60 percent of Americans thought that whites should be prioritized in hiring decisions over Japanese Americans. Stephen White, “Many Americans Support Trump’s Immigration Order; Many Americans Backed Japanese Internment Camps, Too,” THE WASHINGTON POST (Feb. 2, 2017).

19

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 23 of 29 PageID #: 1227

invoke Executive Order 9066 to authorize internment of German-Americans and/or ItalianAmericans.75
In 1976, President Gerald Ford issued a proclamation acknowledging that “not only was that evacuation wrong, but Japanese Americans were and are loyal Americans.” In 1982, the Commission on Wartime Relocation and Interment of Civilians issued a report entitled, “Personal Justice Denied.” The report set the stage for the historic moment in 1988 when President Ronald Reagan signed the Civil Liberties Act, which offered a formal apology and reparations for the “grave injustice” of evacuating, relocating and interning tens of thousands of Japanese Americans during the war.76 President Reagan, in his remarks on signing the Act, made clear that the internment of Japanese Americans was a “grave wrong.”77 Congress too acknowledged that this measure – carried out under the false banner of “national security” – amounted to a “fundamental violation[] of the basic civil liberties and constitutional rights of [] individuals of Japanese ancestry” and caused “enormous damages, both material and intangible, . . . which resulted in significant human suffering[.]”78
Like Executive Order 9066, the Executive Order here invokes national security as its justification. Leaving aside the legal standards regarding how much deference such an invocation deserves, the history of the Japanese internment counsels that we must take an especially hard look at actions that undermine core values and freedoms in the name of national

75

See U.S. COMM’N ON WARTIME RELOCATION AND INTERNMENT OF CIVILIANS, supra note

72 at 3.

76 See 50 U.S.C. § 4201 et seq.

77 Ronald Reagan, Remarks on Signing the Bill Providing Restitution for the Wartime Internment of Japanese-American Civilians (Aug. 10, 1988).

78 50 U.S.C. § 4202.

20

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 24 of 29 PageID #: 1228
security. In this regard, we note the statements by other federal courts that there is “no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States” and that the sequence of events leading up to the Executive Order raises questions as to whether national security concerns in this regard are “rational.” Washington v. Trump, No. 17-35105, 2017 WL 526497, at *8-9, 10 (9th Cir. Feb. 9, 2017); see also Aziz v. Trump, No. 117CV116LMBTCB, 2017 WL 580855, at *3 (E.D. Va. Feb. 13, 2017).
CONCLUSION ADL believes that enjoining provisions of the Executive Order is consistent with the principles underlying the Constitution. Absent injunctive relief, there will almost certainly be irreparable harm to countless people, just as there was when the United States shamefully turned away those on the St. Louis desperately seeking safety, excluded immigrants from China and interned Japanese Americans. As with the 254 passengers aboard the St. Louis who died in the Holocaust, an apology years later would be woefully insufficient to address the damage done. ADL believes that enforcing the Executive Order risks once again sacrificing the nation’s core values in favor of prejudice and fear – a sacrifice that history has repeatedly proven has profound consequences both to the persons who suffer as a result and to the still-vibrant vision of the shining city on the hill.
Respectfully submitted, JOHN B. HARRIS Counsel for Amicus Curiae ADL Frankfurt Kurnit Klein & Selz, P.C. 488 Madison Avenue New York, NY 10022 (212) 705-4823 jharris@fkks.com
21

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 25 of 29 PageID #: 1229

Of Counsel: Jeremy S. Goldman Caren Decter Jessica Smith Rayna Lopyan Lily Landsman-Roos Lakendra Barajas
Of Counsel: Steven M. Freeman Melissa Garlick Michael Lieberman

LAUREN A. JONES
The Anti-Defamation League 605 Third Avenue New York, New York 10158 ljones@adl.org

22

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 26 of 29 PageID #: 1230 APPENDIX
The Journey of the St. Louis and its Passengers
Source: “Map Showing the Voyage of the St. Louis, May 13-June 17, 1939.”, American Jewish
Joint Distribution Committee Archives, “The Story of the S.S. St. Louis (1939)”; http://archives.jdc.org/educators/topic-guides/the-story-of-the-ss-st.html (Last visited February 5, 2017).

Source: Dara Lind, “How America’s Rejection of Jews Fleeing Nazi German Haunts our Refugee Policy Today,” Vox (January 27 2017), http://www.vox.com/policy-andpolitics/2015/11/19/9760060/refugees-historyholocaust. (Last visited February 5, 2017).

Source: “Some of the 907 passengers on board the St. Louis arriving in Belgium after being refused entry into Cuba and the U.S.”, American Jewish Joint Distribution Committee Archives, “The Story of the S.S. St. Louis (1939)”; http://archives.jdc.org/educators/topic-guides/thestory-of-the-ss-st.html (Last visited February 5, 2017).

23

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 27 of 29 PageID #: 1231 In the wake of the Executive Order, and as a tribute to Holocaust Remembrance Day on January 27, 2017, a Twitter account was established in the name of the St. Louis Manifest (@Stl_Manifest, accessible at https://twitter.com/stl_manifest , which has tweeted out the names and stories of the ship’s passengers, examples of which appear below and on the following pages:
24

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 28 of 29 PageID #: 1232 25

Case 1:17-cv-00480-CBA Document 123 Filed 02/16/17 Page 29 of 29 PageID #: 1233 26

 </s> Case 1:17-cv-00480-CBA Document 124 Filed 02/16/17 Page 1 of 3 PageID #: 1234

ERIC T. SCHNEIDERMAN ATTORNEY GENERAL

STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL

BARBARA D. UNDERWOOD SOLICITOR GENERAL

February 16, 2017
Hon. Carol Bagley Amon United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201
Re: Darweesh et al. v. Trump et al., No. 17-cv-00480
Dear Judge Amon:
I write on behalf of intervenor-plaintiff New York State Attorney General Eric T. Schneiderman. The Attorney General intends to follow the schedule that the Court has set forth for briefing on his complaint in intervention (see Order of Feb. 12, 2017), but respectfully submits this letter to support plaintiffs’ request (see Docket No. 61) for a brief continuation of the interim stay entered by the Court on January 28, 2017.
Continuation of the interim stay is warranted in view of the serious harms that New York’s residents, communities, and businesses—and the State itself—will suffer if defendants are permitted to resume “removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen” who are “legally authorized to enter the United States,” see Order of Jan. 28, 2017 (Docket 8), but barred from entry by the Executive Order being challenged in this case. The Attorney General agrees fully with the illustrative discussion of those harms set forth in the brief of the State amici (see Br. of Mass. et al.) and will more fully explain the harms to New York’s interests in the briefing on his complaint in intervention. A short overview is set forth below to aid the Court.
Before the entry of this Court’s temporary restraining order, the Executive Order had significantly disrupted the lives of countless New Yorkers and violated their civil rights in just a few short days. For example, residents of New York who were nationals of the designated countries and happened to be overseas when the Executive Order was signed were prevented from re-entering the country despite being otherwise authorized to reside here as lawful permanent residents and nonimmigrant visa holders. In some instances, the denial of re-entry separated these New Yorkers from their New York-based parents, spouses, siblings, and children
120 BROADWAY, NEW YORK, NY 10271 ● PHONE (212) 416-6348 ● FAX (212) 416-6030 WWW.AG.NY.GOV ● CIVIL.RIGHTS@AG.NY.GOV

Case 1:17-cv-00480-CBA Document 124 Filed 02/16/17 Page 2 of 3 PageID #: 1235
Page 2
(NY Intervenor Compl., at ¶¶ 63-68). Other New York residents were impeded in their work, academic studies, professional endeavors, and religious exercise by their inability to travel freely in pursuit of those interests (id. at ¶¶ 42, 50-52, 55, 57-58, 69).
In addition, the Executive Order has threatened—and continues to threaten—numerous vital sectors of New York’s economy by inhibiting the free exchange of information, ideas, and talent between New York and the designated countries. The finance and technology industries, the heart of New York’s economy, rely heavily upon the talents and contributions of immigrants, including many who are nationals of the countries designated in the Executive Order (id. at ¶¶ 41-42, 59-62). The loss of such workers, some of whom have been extensively trained by their New York employers, places those businesses at a competitive disadvantage in the global marketplace.
The State’s public and private universities have also experienced considerable disruption, as have the State’s public and private hospitals. New York’s universities host, employ, and educate numerous students, faculty, and scholars from the designated countries (id. at ¶¶ 43-52). The Executive Order has interfered with the attendance of such students and threatened existing faculty commitments—resulting in staffing challenges, additional costs and administrative burdens, and uncertainty in academic programs. Similarly, the State’s public and private hospitals employ appreciable numbers of physicians from the designated countries, such that a failure to continue this Court’s interim stay could diminish the availability and quality of medical care for New York residents, and harm important medical research (id. at ¶¶ 53-58). Moreover, New York, like the amici States, is directly economically harmed by the Executive Order, which creates increased costs and administrative burdens for the State, and eliminates significant sources of taxes and other revenues. For example, in 2015 alone, foreign students from the designated countries contributed $30.4 million to New York’s economy (id. at ¶ 49).
Continuation of this Court’s interim stay is critical to ensuring that such concrete and truly irreparable injuries are minimized while the legality of the Executive Order is litigated. Indeed, without continuing preliminary relief to preserve the status quo, New York residents, communities, and businesses will be plunged back into the state of chaos that existed immediately after the Executive Order was signed. Other courts considering similar challenges have already recognized that the irreparable nature of such harms supports a grant of preliminary injunctive relief when taken in combination with the legal infirmities of the Executive Order, the balance of the equities, and the public interest. See Aziz v. Trump, 1:17-cv-116 (LMB/TCB), 2017 WL 580855 (E.D. Va. Feb. 13, 2017); Washington v. Trump, No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 9, 2017) (treating TRO as having qualities of a reviewable preliminary injunction and upholding it).
In sum, while the Attorney General intends to follow the briefing schedule previously set by the Court for motion practice concerning the intervenor complaint, New York nevertheless urges the Court to grant plaintiffs’ motion for a further interim stay in order to avert further irreparable harm to the State and its residents, communities, and businesses.

Case 1:17-cv-00480-CBA Document 124 Filed 02/16/17 Page 3 of 3 PageID #: 1236

Page 3

Respectfully submitted,
ERIC T. SCHNEIDERMAN Attorney General of the State of New York By:

Of Counsel: Anisha Dasgupta
Deputy Solicitor General Zainab Chaudhry
Assistant Solicitor General
cc: Counsel of record (via ECF)

________________________
Lourdes M. Rosado* Bureau Chief
Jessica Attie Special Counsel
Justin Deabler Sania Khan Anjana Samant
Assistant Attorneys General Civil Rights Bureau Office of the New York State
Attorney General 120 Broadway, 23rd floor New York, New York 10271 Tel. (212) 416-8252 Fax. (212) 416-8030 lourdes.rosado@ag.ny.gov

* Admission to EDNY pending.

 </s> Case 1:17-cv-00480-CBA Document 126 Filed 02/16/17 Page 1 of 4 PageID #: 1251

ALINA DAS NANCY MORAWETZ
Supervising Attorneys

IMMIGRANT RIGHTS CLINIC
WASHINGTON SQUARE LEGAL SERVICES, INC.
245 SULLIVAN STREET, 5TH FLOOR NEW YORK, NEW YORK 10012 TEL: 212-998-6430 FAX: 212-995-4031

February 16, 2017
VIA ECF
Hon. Carol Bagley Amon United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201
Re: Darweesh v. Trump, Case No. 1:17-cv-00480-CBA
Dear Judge Amon:
Following yesterday’s submission of a letter motion, filed as Document 91 in Case No. 1:17-cv-00480-CBA, undersigned counsel resubmits this letter motion with the proposed brief enclosed. There is an additional amicus, Muslim Bar Association of New York, joining this motion and brief.
Undersigned counsel writes to seek the Court’s permission to file a brief of amici curiae on behalf of the Arab American Association of New York, Brooklyn Defender Services, Immigrant Rights Clinic of Washington Square Legal Services, Inc., Legal Services NYC, National Organization for Women - New York State, the New York Immigration Coalition, Muslim Bar Association of New York, and Tamizdat, community organizations that represent and/or advise people with visas from the seven designated countries at issue in this case, in support of the petitioners and the intervenor-plaintiff in the above-referenced case. In the alternative, we respectfully request a pre-motion conference to authorize leave to file such a brief, as provided by Rule 3(A) of this Court’s Individual Rules.
As explained below, the proposed amici therefore have an interest in the outcome of the above-referenced case. The purpose of the proposed amici’s brief in support of the petitioners and intervenor-plaintiff will be to demonstrate that the government’s method of carrying out the Executive Order by implementing a classwide visa revocation is unlawful. Such a classwide visa revocation is not authorized by the Executive Order or by the governing statutes or regulations, and is impermissibly retroactive.
“District courts have broad discretion to permit or deny the appearance of amici curiae in a given case.” United States v. Ahmed, 788 F. Supp. 196, 198 n.1 (S.D.N.Y. 1992), aff’d 980 F.2d 161 (2d Cir. 1992). “An amicus brief should normally be allowed when ... the amicus has

Case 1:17-cv-00480-CBA Document 126 Filed 02/16/17 Page 2 of 4 PageID #: 1252
unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide.” Andersen v. Leavitt, No. 03-cv-6115, 2007 U.S. Dist. LEXIS 59108, *6 (E.D.N.Y. Aug. 13, 2007) (internal quotations omitted). Leave to file an amicus brief is particularly appropriate “in cases involving matters of public interest.” Id.
The interests of the proposed amici are as follows:
The Arab American Association of New York (“AAANY”) is a social service and advocacy agency based in Bay Ridge, Brooklyn, the largest Arab community in New York City. Our mission is to support and empower the Arab American and Arab immigrant community, providing the tools needed to achieve independence, productivity, and stability. Following the Executive Order, AAANY has provided legal counsel, Know Your Rights trainings, and direct support to hundreds of individuals and families directly impacted by the travel and immigration restrictions imposed by the order.
Brooklyn Defender Services (“BDS”) is a public defender organization that represents more than 45,000 people each year who cannot afford an attorney in criminal, family, and immigration proceedings. BDS has a robust Immigration Practice and has provided immigration legal services and removal defense to Brooklyn residents for many years. BDS attorneys have represented and advised individuals affected by the Executive Order, and were present at John F. Kennedy Airport to assist individuals who were detained.
Immigrant Rights Clinic of Washington Square Legal Services, Inc. (“IRC”) is a law clinic at New York University (“NYU”) School of Law that represents and works with immigrants and immigrant rights organizations. IRC operates the NYU Immigrant Defense Initiative, a project aimed at providing legal advocacy to NYU students and staff at risk of deportation. Through this initiative, IRC has worked closely with visa holders affected by the Executive Order targeting individuals from Libya, Iran, Iraq, Somalia, Sudan, Syria, and Yemen. IRC has represented individuals who were detained under the Executive Order, including at John F. Kennedy Airport. IRC also advises individuals with visas from the seven targeted countries. IRC has a stake in the proper application of the law.
Legal Services NYC (“LSNYC”) is a Legal Services Corporation funded legal aid agency that fights poverty and seeks justice for low-income New Yorkers. For more than 40 years, LSNYC has helped clients meet basic needs for housing, access to high-quality education, health care, family stability, and income and economic security. The communities LSNYC serves include many immigrant and mixed-immigration status families and LSNYC assists many asylum seekers, refugees, and survivors of crime and violence attain lawful immigration status. LSNYC is the largest civil legal services provider in the country, with deep roots in all of the communities they serve. LSNYC’s neighborhood-based offices and outreach sites across all five boroughs help more than 80,000 New Yorkers annually. LSNYC’s advocates were directly involved in supporting families whose relatives were affected by the Executive Order.
The National Organization for Women - New York State is a chapter within the National Organization for Women (NOW), the largest organization of intersectional feminist grassroots activists in the United States. NOW’s New York State chapter plays a critical role in

Case 1:17-cv-00480-CBA Document 126 Filed 02/16/17 Page 3 of 4 PageID #: 1253
holding government accountable to the women of New York. The Executive Order perpetuates the inherently discriminatory immigration system. Deportation repeats a cycle of violence— forcing families back into the dangerous and life-threatening circumstances that first led them to seek refuge. NOW stands in solidarity with their Muslim and immigrant sisters and brothers in opposition to the Administration’s abuse of executive authority.
The New York Immigration Coalition (“NYIC”) is an advocacy and policy umbrella organization for more than 175 multi-ethnic, multi-racial, and multi-sector groups across the state. Through its members and its own advocacy, the NYIC has long worked against unjust immigration policies. Many NYIC member organizations work directly with immigrants affected by the Executive Order. The NYIC and its members played a coordinating role to support individuals and families directly impacted by this order at John F. Kennedy Airport.
Muslim Bar Association of New York (“MuBANY”) is one of the nation’s largest and most active professional associations for Muslim lawyers. MuBANY provides a range of services for the legal community and for the larger Muslim community. One of MuBANY’s missions is to improve the position of the Muslim community at large by addressing issues affecting the local and national Muslim population, through community education, advancing and protecting the rights of Muslims in America, and creating an environment that helps guarantee the full, fair and equal representation of Muslims in American society. MuBANY works actively to combat anti-Muslim and anti-Islamic stereotypes in the media, courts, law enforcement and the greater community. Many MuBANY members work directly with immigrants affected by the recent Executive Order barring entry to visa holders from seven Muslim-majority countries. MuBANY members volunteered their time to support individuals and families directly impacted by this order at John F. Kennedy Airport. They have also worked with local bar associations and community groups to conduct Know Your Rights workshops across New York.
Tamizdat is a nonprofit organization that facilitates international cultural exchange. Tamizdat’s mission is motivated by the conviction that the international exchange and mobility of culture is fundamental to the growth of global civil society. Since 2000, Tamizdat has worked to safeguard cultural diversity in the United States by helping the international performing arts community address problems presented by U.S. immigration policy and procedure. Tamizdat has been integral in arranging visas for more than 20,000 performing artists from all over the world. Many of Tamizdat’s clients have been directly impacted by the Executive Order and its chilling effect on cultural programming in the U.S. will reverberate for months, if not years.
For the foregoing reasons, we respectfully request the Court’s permission to file a brief of amici curiae on or before a date set by the Court or the date on which the plaintiffs’ briefs are due. In the alternative, we request a pre-motion conference with the Court for leave to file such a brief.
Respectfully submitted,
/s/Alina Das Alina Das

Case 1:17-cv-00480-CBA Document 126 Filed 02/16/17 Page 4 of 4 PageID #: 1254
Supervising Attorney Immigrant Rights Clinic Washington Square Legal Services, Inc. 245 Sullivan Street, 5th Floor New York, New York 10012 212-998-6430 alina.das@nyu.edu
cc: All counsel of record (via ECF).

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 1 of 47 PageID #: 1255

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al., Petitioners,
and PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK,
Intervenor-Plaintiff, v. DONALD TRUMP, President of the United States, et al.,
Respondents

Civil Action No. 1:17-cv-00480
(Amon, J.)

BRIEF OF ARAB AMERICAN ASSOCIATION OF NEW YORK, BROOKLYN DEFENDER SERVICES, IMMIGRANT RIGHTS CLINIC OF WASHINGTON SQUARE LEGAL SERVICES, LEGAL SERVICES NYC, THE NATIONAL ORGANIZATION OF WOMEN - NEW YORK STATE,
THE NEW YORK IMMIGRATION COALITION, MUSLIM BAR ASSOCIATION OF NEW YORK, AND TAMIZDAT AS AMICI CURIAE IN SUPPORT OF THE RELIEF SOUGHT BY PETITIONERS
AND INTERVENOR-PLAINTIFF
ALINA DAS NANCY MORAWETZ Immigrant Rights Clinic Washington Square Legal Services 245 Sullivan Street, 5th Fl. New York, NY 10012 (212) 998-6467 alina.das@nyu.edu
Counsel for Amici Curiae

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 2 of 47 PageID #: 1256
TABLE OF CONTENTS DISCLOSURE STATEMENT ........................................................................................... ii TABLE OF AUTHORITIES ............................................................................................. iii PRELIMINARY STATEMENT .........................................................................................1 STATEMENT OF INTEREST............................................................................................2 BACKGROUND ON THE EXECUTIVE ORDER AND U.S. DEPARTMENT OF STATE MEMORANDUM............................................................................................6 SUMMARY OF ARGUMENT ...........................................................................................9 ARGUMENT .....................................................................................................................10
I. The U.S. Visa System Reflects a Highly Individualized Process Upon Which Thousands of Individuals, Families, and Institutions in the United States Rely .. 10
II. Nothing in the Executive Order or the Immigration and Nationality Act and Implementing Regulations Directs or Authorizes the Federal Government’s Categorical, Classwide Revocation of Visas .........................................................19 A. The Executive Order and the Statute It Relies Upon, INA § 212(f), Do Not Authorize Categorical and Classwide Visa Revocation ..................................20 B. Neither INA § 221(i) Nor Its Implementing Regulations Authorize Classwide Visa Revocation..............................................................................22
III. The Visa Revocation Memo Has an Impermissibly Retroactive Effect In Light of Visa Holders' Settled Expectations......................................................29
CONCLUSION ..................................................................................................................33
i

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 3 of 47 PageID #: 1257 DISCLOSURE STATEMENT
Pursuant to Fed. R. Civ. P. 7.1, amici curiae state that there is no parent corporation or any publicly held corporation that owns 10% or more of the stock of any of the parties listed herein.
ii

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 4 of 47 PageID #: 1258
TABLE OF AUTHORITIES
Cases
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (19)...................................................................................................29, 30
Burger v. Gonzales, 498 F.3d 131 (2d Cir. 2007).........................................................................................28
City of New York v. Permanent Mission of India to United Nations, 618 F.3d 172 (2d Cir. 2010) .......................................................................................30
De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015) ............................................................................29, 32
Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (1992) ...................................................................................................23
Chew Heong v. United States, 112 U.S. 536 (1884) ...................................................................................................31
Clark v. Martinez, 543 U.S. 371 (2005).....................................................................................................26
Haitian Refugee Center, Inc. v. Gracey, 600 F. Supp. 1396 (D.D.C. 1985) ...............................................................................21
I.N.S. v. St. Cyr, 533 U.S. 289 (2001)...............................................................................................29, 33
Kent v. Dulles, 357 U.S. 116 (1958).....................................................................................................28
Kungys v. United States, 485 U.S. 759 (1988) ...................................................................................................25
Landon v. Plasencia, 459 U.S. 21 (1982) .....................................................................................................28
Larson v. Valente, 456 U.S. 228 (1982) ...................................................................................................27
Louhghalam v. Trump, No. 17-10154-NMG (D. Mass. Feb. 3, 2017) ......................................................1, 6, 8
iii

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 5 of 47 PageID #: 1259
Matter of H-R-, 7 I&N Dec. 651 (RC 1958) ........................................................................................11
Matter of Z, 20 I&N Dec. 707 (BIA 1993).....................................................................................21
Pierre v. Holder 738 F.3d 38 (2d Cir. 2013) .........................................................................................27
Ratzlaf v. United States, 510 U.S. 135 (1994) ...................................................................................................25
Rosenberg v. Fleuti, 374 U.S. 449 (1963) ...................................................................................................21
South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 510 n.22 (1986) ...................................................................................25
Smith v. United States, 508 U.S. 223 (1993) ...................................................................................................24
United Sav. Ass'n v. Timbers of Inwood Forest Assocs., 484 U.S. 365 (1988) ...................................................................................................24
United States v. Providence Journal Co., 485 U.S. 693 (1988) ...................................................................................................23
United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014) ....................................................................................28
United States v. Windsor, 133 S. Ct. 2675 (2013) ...............................................................................................27
Vartelas v. Holder, 566 U.S. 257, 267-68 (2012) .....................................................................................31
Zadvydas v. Davis, 533 U.S. 678 (2001) ...................................................................................................28
Statutes and Regulations
Foreign Affairs Manual: 9 FAM 402.4 ............................................................................................................. 24 9 FAM 504.4-7 (2015) ...............................................................................................13 9 FAM 504.4-8(E) (2016) ..........................................................................................13
iv

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 6 of 47 PageID #: 1260
Immigration and Nationality Act: Section 101(a)(15)(A) ..........................................................................................14, 24 Section 101(a)(15)(G) ..........................................................................................14, 24 Section 101(a)(16) ......................................................................................................10 Section 102 .................................................................................................................14 Sections 201-210 ........................................................................................................14 Section 202(a)(1) ........................................................................................................23 Section 212 .................................................................................................................14 Section 212(a).............................................................................................................14 Section 212(a)(5) ........................................................................................................12 Section 212(f) ..................................................................................................... passim Section 213(a).............................................................................................................13 Section 221(i) ..................................................................................................... passim Section 222(h) ............................................................................................................13 Section 237(a)(1)(B)...............................................................................................8, 21 Section 273 .................................................................................................................21
Title 6, United States Code: Section 236 .................................................................................................................15
Title 8, United States Code: Section 1101(a)(15)(A) ........................................................................................14, 24 Section 1101(a)(15)(G) ........................................................................................14, 24 Section 1101(a)(16) ....................................................................................................10 Section 1102 ...............................................................................................................14 Sections 1151-1160 ....................................................................................................14 Section 1152(a)(1) ......................................................................................................23 Section 1182 ...............................................................................................................14 Section 1182(a)...........................................................................................................14 Section 1182(a)(5) ......................................................................................................12 Section 1182(f) ...........................................................................................................19 Section 1183a .............................................................................................................13 Section 1201(i) ...........................................................................................................19 Section 1202(h) ..........................................................................................................13 Section 1227(a)(1)(B).............................................................................................8, 21 Section 1323 ...............................................................................................................21
Title 8, United States Code of Federal Regulations: Section 204.2(c)(3)(i) .................................................................................................12 Section 204.2(g)(3).....................................................................................................12 Section 204.2(h)(2).....................................................................................................12 Section 204.2(n) .........................................................................................................12 Section 213a(2)...........................................................................................................13 Section 214.2(a)(1) ...............................................................................................14, 24 Section 213.2(f) ..........................................................................................................11 Section 214.2(f)(5)(i)..................................................................................................17
v

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 7 of 47 PageID #: 1261
Section 214.2(f)(10)(i)................................................................................................17 Section 214.2(f)(10)(ii) ..............................................................................................17 Section 214.2(h)(16)...................................................................................................11 Section 214.2(l)(16)....................................................................................................11 Section 214.2(o)(13)...................................................................................................11 Section 214.2(p)(15)...................................................................................................11
Title 22, United States Code of Federal Regulations: Section 41.61(b)(1)(ii) ................................................................................................14 Section 41.103(a)........................................................................................................13 Section 41.102 ............................................................................................................13 Section 41.122 ..........................................................................................19, 22, 23, 25 Section 41.122(b)(1)...............................................................................................7, 24 Section 41.122(b)(2)...................................................................................................24 Section 41.122(c)........................................................................................................24 Section 41.113(e)........................................................................................................16 Section 41.113(f) ........................................................................................................16 Section 42.65(b) .........................................................................................................13 Section 42.66 ..............................................................................................................13 Section 42.67(c)..........................................................................................................13 Section 42.72(a)..........................................................................................................16 Section 42.73 ..............................................................................................................16 Section 42.82 ..................................................................................................19, 22, 23 Section 42.82(b) .........................................................................................................24 Section 42.82(c)..........................................................................................................24
Other Authorities
AILA/DOS Liaison Meeting (Apr. 7, 2016), published on AILA Doc. No. 16041133 ....................................................................................................................24
Amended Petition for Writ of Habeas Corpus and Complaint at n.12, Louhghalam v. Trump, No. 17-10154-NMG (D. Mass. Feb. 3, 2017) ........................8
Angela Dewan, Airlines Allow Passengers After Judge Blocks Travel Ban, CNN (Feb. 3, 2017) http://www.cnn.com/2017/02/04/politics/airlinesairports-trump-travel-ban .............................................................................................6
Ariana Maia Sawyer, Kurdish family head to Nashville sent back to Iraq, The Tennessean (Jan. 29, 2017), http://www.tennessean.com/story/news/local/2017/01/29/kurdishfamily-headed-nashville-sent-back-iraq/97220858/ ...................................................16
vi

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 8 of 47 PageID #: 1262
Arwa Gaballa, Eric Knecht & Michael Georgy, Trump order dashes dreams of Iraqi family bound for the United States, Reuters (Jan. 30, 2017), http://www.reuters.com/article/us-usa-trump-immigrationiraqis-idUSKBN15D0FK ...........................................................................................16
Charles Ornstein, Trump’s Executive Order Strands Brooklyn Doctor in Sudan, ProPublica (Jan. 29, 2017), https://www.propublica.org/article/trumps-executive-order-strandsbrooklyn-doctor-in-sudan ...........................................................................................12
Colin L. Powell and Thomas J. Ridge, Memorandum of Understanding between the Secretaries of State and Homeland Security Concerning the Implementation of Section 428 of the Homeland Security Act of 2002, September 29, 2003 ..........................................................................................15
Dan Levin, Counsel to the Attorney General Memorandum on Presidential Proclamation Under Section 212(f) of the Immigration and Nationality Act, U.S. Department of Justice Office of the Deputy Attorney General (Oct. 3, 2001), https://www.scribd.com/document/17819320/T5-B61-Condor-Fdr10-3-01-Levey-Memo-Re-Presidential-Proclamation-Section-212-fImmigration-and-Nationality-Act ...............................................................................20
David A. Martin, Trump’s “refugee ban” - annotated by a former top Department of Homeland Security lawyer (Jan. 3, 2017), http://www.vox.com/the-big-idea/2017/1/30/14429866/trumprefugee-ban-executive-order-annotated .....................................................................20
Executive Order 13769, Protecting the Nation from Terrorist Entry into the United States, 82 Fed. Reg. 8,977, 8,977–78 (Feb. 1, 2017) ....................... passim
Felicia Gans, I told him I do have a valid visa, but he told me that it doesn’t matter, Boston Globe (Jan. 29, 2017), https://www.bostonglobe.com/metro/2017/01/28/told-him-have-validvisa-but-told-that-doesn-matter/yttREc10s5cc7yjX3d48hJ/story.html................17, 21
Homeland Security Act (2002), PL 107-296, 116 Stat. 2135 (Nov. 25, 2006) ...........................................................................................................................15
H. Rep. 108-723, pt. 5 at 189 (2004) .................................................................................26
H.R. Rep. No. 1365, at 36 (1952) ......................................................................................26
Immigration and Nationality Act of 1952, Pub. L. No. 414, 66 Stat. 192 .........................26
vii

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 9 of 47 PageID #: 1263
Introduction and Summary to Opinions of the Office of Legal Counsel Relating to the Iranian Hostage Crisis, 4A U.S. Op. Off. Legal Counsel 7, 84, 1894 WL 54314 (Oct. 1, 1984) ..........................................................24
Josh Gerstein, State Department Notice Revoking Visas under Trump Order Released, Politico (Jan. 31, 2017), http://www.politico.com/blogs/under-the-radar/2017/01/trump-visasstate-department-234454 ......................................................................................1, 6, 8
Josh Levin, Thanks to Donald Trump, A 12-Year-Old Girl With American Parents Is Stuck in Djibouti, Slate (Jan. 29, 2017), http://www.slate.com/blogs/the_slatest/2017/01/29/a_12_year_old_gi rl_is_stuck_in_djibouti_thanks_to_trump_s_executive_order.html ..........................13
Julie Bort, This Iraqi Facebook engineer was invited to the US under President Bush, and now he’s feeling trapped, Business Insider (Jan. 30, 2017), http://www.businessinsider.com/iraqi-facebook-engineercaught-in-the-immigration-ban-2017-1 ................................................................18, 32
Justin Jouvenal, Rachel Weiner & Ann E. Marimow, Justice Dept. Lawyer Says 100,000 Visas Revoked Under Travel ban; State Dept. says About
60,000, Washington Post (Feb. 3, 2017), https://www.washingtonpost.com/local/public-safety/governmentreveals-over-100000-visas-revoked-due-to-travelban/2017/02/03/7d529eec-ea2c-11e6-b82f687d6e6a3e7c_story.html?utm_term=.10f70cacabf9 .................................................8
Kate M. Manuel, Executive Authority to Exclude Aliens: In Brief, Congressional Research Service (Jan. 23, 2017), https://fas.org/sgp/crs/homesec/R44743.pdf ..............................................................20
Lisa Seghetti, Cong. Research Serv., R43356, Border Security: Immigration Inspections at Port of Entry (2014) .......................................................21
Lives Rewritten with the Stroke of a Pen, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/interactive/2017/01/29/nyregion/detaineestrump-travel-ban.html.................................................................................6, 10, 17, 32
Lyric Lewin, “These are the faces of Trump’s ban,” CNN, http://www.cnn.com/interactive/2017/01/politics/immigration-banstories/ ........................................................................................................................18
viii

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 10 of 47 PageID #: 1264
Maria Sacchetti and Milton J. Valencia, With Visas Revoked, Travelers Barred Entry Despite Court Order, Boston Globe (Feb. 1, 2017), https://www.bostonglobe.com/metro/2017/02/01/document-filedboston-court-reveals-visas-were-revoked-for-people-from-bannedcountries/D6NBbEBA1HrF4IUrJjuljI/story.html ........................................................8
Michael D. Shear & Nicholas Kulish, Judge Blocks Part of Trump’s Immigration Order, The Seattle Times (Jan. 29, 2017), http://www.seattletimes.com/nation-world/panic-at-airports-astrumps-order-blocks-immigrants..........................................................................11, 32
Order, State of Washington v. Trump, No. 17-35105, D.C. No. 2:17-cv00141 at 9–10, (Feb. 9, 2017) (per curiam)................................................................18
Press Release, Donald J. Trump Addresses Terrorism, Immigration and National Security, (June 13, 2016), https://www.donaldjtrump.com/press-releases/donald-j.-trumpaddresses-terrorism-immigration-and-national-security ............................................27
Proclamation 7524 Suspension of Entry as Immigrants and Nonimmigrants of Persons Responsible for Actions That Threaten Zimbabwe’s Democratic Institutions and Transition to a Multi-Party Democracy, 67 Fed. Reg. 8857 (Feb. 26, 2002) ........................................................22
Proclamation 8158 Suspension of Entry as Immigrants and Nonimmigrants of Persons Responsible for Policies and Actions That Threaten Lebanon’s Sovereignty and Democracy, 72 Fed. Reg. 36587 (Jul. 3, 2007)...............................................................................................................22
Proclamation to Suspend Entry as Immigrants or Nonimmigrants of Persons Engaged in or Benefitting From Corruption, 69 Fed. Reg. 2287 (Jan. 12, 2004) ...................................................................................................22
Public Notice, Revocation of Certain Nonimmigrant Visas, 45 Fed. Reg. 24437 (April 9, 1980) .................................................................................................23
Rebecca Savransky, Giuliani: Trump Asked Me How to do a Muslim Ban “Legally,” The Hill (Jan. 29, 2017), http://thehill.com/homenews/administration/316726-giuliani-trumpasked-me-how-to-do-a-muslim-ban-legally ...............................................................28
Ruth Ellen Wasem, Cong. Research Serv., R43589, Immigration: Visa Security Policies 17-18 (2014) ...................................................................................15
ix

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 11 of 47 PageID #: 1265
Shannon Dooling, All Visas Revoked for People From 7 Barred Countries, Per State Dept., WBUR News (Feb. 7, 2017), http://www.wbur.org/news/2017/02/01/visas-revoked-statedepartment ....................................................................................................................8
Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Are Members of the Military Junta in Sierra Leone and Members of Their Families, 63 Fed. Reg. 2871 (Jan. 14, 1998) ....................................................22
Suspension of Entry as Nonimmigrants by Officers or Employees of the Government of Cuba or the Communist Party of Cuba, 50 Fed. Reg. 41329 (Oct 4., 1985)...................................................................................................22
Thomas Erdbring, Former American Embassy in Iran Attracts Pride and Dust, N.Y. Times (Oct. 31, 2013), http://www.nytimes.com/2013/11/01/world/middleeast/formeramerican-embassy-in-iran-attracts-pride-and-dust.html?_r=0 ...................................14
Theodore Schleifer, Donald Trump: ‘I Think Islam Hates Us,’ CNN (Mar. 10, 2016), http://www.cnn.com/2016/03/09/politics/donald-trumpislam-hates-us/ ............................................................................................................27
USCIS, Immigrant Fee Payment to Move USCIS (May 2, 2013) .....................................16
U.S. Customs and Border Protection, Immigrant Visas vs. Nonimmigrant Visas, https://help.cbp.gov/app/answers/detail/a_id/72/~/immigrantvisas-vs.-nonimmigrant-visas .....................................................................................10
U.S. Dep’t of State Cable, 02-State-6020 (Jan. 11, 2002), reprinted in 79 No. 4 Interpreter Releases 118-19 (Jan. 21, 2002) ....................................................13
U.S. Dep’t of State Cable, 05-State-066722 (Apr. 12, 2005), published on AILA Doc. No. 05052060 ..........................................................................................16
U.S. Dep’t of State Cable, 05-State-180015 (Sept. 28, 2005), published on AILA InfoNet at Doc. No. 05110115.........................................................................17
U.S. Dep’t of State Cable, 13 State 103210, DS-260 Worldwide Deployment (Aug. 13, 2013) ......................................................................................13
U.S. Dep’t of State, Bureau of Consular Affairs, Executive Order on Visas (Feb. 4, 2017), https://travel.state.gov/content/travel/en/news/importantannouncement.html ............................................................................................7, 8, 20
x

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 12 of 47 PageID #: 1266
U.S. Dep’t of State, Bureau of Consular Affairs, Student Visa, https://travel.state.gov/content/visas/en/study-exchange/student.html ................11, 14
U.S. Dep’t of State, Bureau of Consular Affairs, Travel for Medical Treatment, https://travel.state.gov/content/visas/en/visit/visitor.html#apply ...............................15
U.S. Dep’t of State, Bureau of Consular Affairs, Visitor Visa, https://travel.state.gov/content/visas/en/visit/visitor.html#apply ...............................14
U.S. Dep’t of State, Bureau of Consular Affairs, What the Visa Expiration Date Means, https://travel.state.gov/content/visas/en/general/visaexpiration-date.html ...................................................................................................16
U.S. Dep’t of State, Consular Electronic Application Center, Form DS160, https://ceac.state.gov/GenNIV/Default.aspx ......................................................13
U.S. Dep’t of State, Fees for Visa Services, https://travel.state.gov/content/visas/en/fees/fees-visa-services.html ........................13
U.S. Dep’t of State Memorandum (Jan. 27, 2017), http://www.politico.com/f/?id=00000159-f6bd-d173-a959ffff671a0001 ...................................................................................................7, 19, 22
xi

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 13 of 47 PageID #: 1267
PRELIMINARY STATEMENT On January 27, 2017, President Trump signed Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States,” (hereinafter “Executive Order” and “EO”) suspending the entry of all nationals from seven Muslim-majority countries: Somalia, Iran, Sudan, Syria, Iraq, Libya, and Yemen.1 Shortly after the first court challenges to the Executive Order were filed, the Department of Justice produced a memorandum (hereinafter “Visa Revocation Memo”), also dated January 27, 2017, from the U.S. Department of State.2 This Visa Revocation Memo provisionally revoked all immigrant and nonimmigrant visas held by nationals of the seven countries named in the Executive Order. In one fell swoop, the federal government upended the lives of tens of thousands of students, doctors, artists, and others— many of whom had waited years for their visas or who had travelled in and out of the United States for years. As a result of the memo, airlines refused to board passengers even though they were permitted to enter the U.S. under then-existing court orders, including the order of this Court. This case addresses the legality of the President’s Executive Order, which intends to suspend the entry of people from the seven designated countries and refugees into the United States. Amici support the arguments of the petitioners that this order is illegal, and submit this brief to address the emerging and related question of the legality of the Visa Revocation Memo which revokes visas on a classwide basis for all visa holders from the seven designated countries.
1 Executive Order 13769, Protecting the Nation from Terrorist Entry into the United States, 82 Fed. Reg. 8,977, 8,977–78 (Feb. 1, 2017). 2 Josh Gerstein, State Department Notice Revoking Visas Under Trump Order Released, Politico (Jan. 31, 2017), http://www.politico.com/blogs/under-the-radar/2017/01/trump-visas-statedepartment-234454 (noting that “the [DOS memorandum] was made public in a filing in [sic]federal court of Boston”). The case referred to is Louhghalam v. Trump, No. 17-10154NMG (D. Mass. Feb. 3, 2017).
1

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 14 of 47 PageID #: 1268
There is no authority for the Visa Revocation Memo in the Executive Order or in the governing statutes. The text of the Executive Order itself, the statutes and regulations relating to visa revocations, and well-established principles of statutory construction, including the presumption of non-retroactivity and the canon of constitutional avoidance, do not permit such classwide visa revocations. By issuing this blanket visa revocation, the federal government has needlessly upset our visa issuance system and unsettled the lives of thousands of individuals both in and out of the United States.
STATEMENT OF INTEREST Amici curiae are community organizations that advocate for individuals and communities that have been immediately and directly impacted by the January 27, 2017 Executive Order. The Executive Order and Visa Revocation Memo threaten the interests of amici by targeting visa holders who have deep ties to our families and communities. Amici have a strong interest in protecting the rights of visa holders, including the right to travel on valid visas and to petition for family members. New York is the port of entry into the United States for many of the current and future community members we serve. Amici therefore submit this brief in support of the relief sought by Petitioners and Intervenor-Plaintiff. Amici curiae are the Arab American Association of New York, Brooklyn Defender Services, Immigrant Rights Clinic of Washington Square Legal Services, Inc., Legal Services NYC, the National Organization for Women - New York State, the New York Immigration Coalition, Muslim Bar Association of New York, and Tamizdat. The Arab American Association of New York (“AAANY”) is a social service and advocacy agency based in Bay Ridge, Brooklyn, the largest Arab community in New York City. Our mission is to support and empower the Arab American and Arab immigrant community,
2

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 15 of 47 PageID #: 1269
providing the tools needed to achieve independence, productivity, and stability. Following the Executive Order, AAANY has provided legal counsel, Know Your Rights trainings, and direct support to hundreds of individuals and families directly impacted by the travel and immigration restrictions imposed by the order.
Brooklyn Defender Services (“BDS”) is a public defender organization that represents more than 45,000 people each year who cannot afford an attorney in criminal, family, and immigration proceedings. BDS has a robust Immigration Practice and has provided immigration legal services and removal defense to Brooklyn residents for many years. BDS attorneys have represented and advised individuals affected by the Executive Order, and were present at John F. Kennedy Airport to assist individuals who were detained.
Immigrant Rights Clinic of Washington Square Legal Services, Inc. (“IRC”) is a law clinic at New York University (“NYU”) School of Law that represents and works with immigrants and immigrant rights organizations. IRC operates the NYU Immigrant Defense Initiative, a project aimed at providing legal advocacy to NYU students and staff at risk of deportation. Through this initiative, IRC has worked closely with visa holders affected by the Executive Order targeting individuals from Libya, Iran, Iraq, Somalia, Sudan, Syria, and Yemen. IRC has represented individuals who were detained under the Executive Order, including at John F. Kennedy Airport. IRC also advises individuals with visas from the seven targeted countries. IRC has a stake in the proper application of the law.
Legal Services NYC (“LSNYC”) is a Legal Services Corporation funded legal aid agency that fights poverty and seeks justice for low-income New Yorkers. For more than 40 years, LSNYC has helped clients meet basic needs for housing, access to high-quality education, health care, family stability, and income and economic security. The communities LSNYC
3

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 16 of 47 PageID #: 1270
serves include many immigrant and mixed-immigration status families and LSNYC assists many asylum seekers, refugees, and survivors of crime and violence in attaining lawful immigration status. LSNYC is the largest civil legal services provider in the country, with deep roots in all of the communities they serve. LSNYC’s neighborhood-based offices and outreach sites across all five boroughs help more than 80,000 New Yorkers annually. LSNYC’s advocates were directly involved in supporting families whose relatives were affected by the Executive Order.
The National Organization for Women - New York State is a chapter within the National Organization for Women (NOW), the largest organization of intersectional feminist grassroots activists in the United States. NOW’s New York State chapter plays a critical role in holding government accountable to the women of New York. The Executive Order perpetuates the inherently discriminatory immigration system. Deportation repeats a cycle of violence— forcing families back into the dangerous and life-threatening circumstances that first led them to seek refuge. NOW stands in solidarity with their Muslim and immigrant sisters and brothers in opposition to the Administration’s abuse of executive authority.
The New York Immigration Coalition (“NYIC”) is an advocacy and policy umbrella organization for more than 175 multi-ethnic, multi-racial, and multi-sector groups across the state. Through its members and its own advocacy, the NYIC has long worked against unjust immigration policies. Many NYIC member organizations work directly with immigrants affected by the Executive Order. The NYIC and its members played a coordinating role to support individuals and families directly impacted by this order at John F. Kennedy Airport.
Muslim Bar Association of New York (“MuBANY”) is one of the nation’s largest and most active professional associations for Muslim lawyers. MuBANY provides a range of services for the legal community and for the larger Muslim community. One of MuBANY’s
4

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 17 of 47 PageID #: 1271
missions is to improve the position of the Muslim community at large by addressing issues affecting the local and national Muslim population, through community education, advancing and protecting the rights of Muslims in America, and creating an environment that helps guarantee the full, fair and equal representation of Muslims in American society. MuBANY works actively to combat anti-Muslim and anti-Islamic stereotypes in the media, courts, law enforcement and the greater community. Many MuBANY members work directly with immigrants affected by the recent Executive Order barring entry to visa holders from seven Muslim-majority countries. MuBANY members volunteered their time to support individuals and families directly impacted by this order at John F. Kennedy Airport. They have also worked with local bar associations and community groups to conduct Know Your Rights workshops across New York.
Tamizdat is a nonprofit organization that facilitates international cultural exchange. Tamizdat’s mission is motivated by the conviction that the international exchange and mobility of culture is fundamental to the growth of global civil society. Since 2000, Tamizdat has worked to safeguard cultural diversity in the United States by helping the international performing arts community address problems presented by U.S. immigration policy and procedure. Tamizdat has been integral in arranging visas for more than 20,000 performing artists from all over the world. Many of Tamizdat’s clients have been directly impacted by the Executive Order and its chilling effect on cultural programming in the U.S. will reverberate for months, if not years.
Amici therefore submit this brief in support of the relief sought by Petitioners and Intervenor-Plaintiff.
5

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 18 of 47 PageID #: 1272
BACKGROUND ON THE EXECUTIVE ORDER AND U.S. DEPARTMENT OF STATE MEMORANDUM
At approximately 4:42 pm3 on Friday, January 27, 2017, President Trump signed
Executive Order 13769, which intended to, among other things, “suspend entry into the United
States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this Order” for nationals from seven Muslim-majority countries.4 The President’s order caused
immediate chaos at our nation’s borders as lawful permanent residents, refugees, employment
and student visa holders, and others with valid visas found themselves detained at ports of entry and denied entry under threat of removal.5 At the time, it was unclear what process the
government was using to deny individuals entry. Some were sent away from the U.S. with
“cancelled” stamped on their visas, but no one was given concrete information about how this was occurring.6 These practices continued until—and in some cases, after—various federal
courts, including this Court, issued orders temporarily restraining the federal government from
enforcing the EO.
On January 31, 2017, the Department of Justice filed for the first time in the case Louhghalam v. Trump, a copy of the Visa Revocation Memo dated January 27, 2017.7 Prior to
3 Lives Rewritten with the Stroke of a Pen, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/interactive/2017/01/29/nyregion/detainees-trump-travel-ban.html. 4 Executive Order 13769, Protecting the Nation From Terrorist Entry into the United States, 82 Fed. Reg. 8,977, 8,977–78 (Feb. 1, 2017). 5 Lives Rewritten with the Stroke of a Pen, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/interactive/2017/01/29/nyregion/detainees-trump-travel-ban.html. 6 See Angela Dewan, Airlines Allow Passengers After Judge Blocks Travel Ban, CNN (Feb. 3, 2017) http://www.cnn.com/2017/02/04/politics/airlines-airports-trump-travel-ban/ (describing how some passengers had their visas physically cancelled). 7 Josh Gerstein, State Department Notice Revoking Visas Under Trump Order Released, Politico (Jan. 31, 2017), http://www.politico.com/blogs/under-the-radar/2017/01/trump-visas-statedepartment-234454 (noting that “the [DOS memorandum] was made public in a filing in [sic]federal court of Boston”). The case referenced is Louhghalam v. Trump, No. 17-10154NMG (D. Mass. Feb. 3, 2017). The same memorandum was filed in the present case on January
6

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 19 of 47 PageID #: 1273
the court filing, the memo had not been released to the public.8 The Visa Revocation Memo was
signed by Edward J. Ramotowski, Deputy Assistant Secretary, Bureau of Consular Affairs,
Department of State (“State Department” or “DOS”).9 The memo stated that at the request of the
Department of Homeland Security, as well as under the direction of the Executive Order and
pursuant to its statutory and regulatory authority, the agency had “provisionally revoke[d] all
valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria
and Yemen.”10 The only visas exempted from the revocation were visas for certain diplomats,
certain foreign government officials, and certain international organization employees, and their
family members.11 Provisional revocation, per federal regulations, has the same effect as an
actual revocation.12 In four short paragraphs, the Visa Revocation Memo unraveled an
immigration system founded on intricate, individualized, and thoroughly vetted procedures.
Confusion about the Visa Revocation Memo ensued as the public grappled to understand
its meaning and the government scrambled to clarify its scope. On February 3, 2017, a State
Department spokesperson indicated that because of the mass revocations, those visa holders who
31, 2017 as Exh. Department of State Letter by Steven Platt. Darweesh et al v. Trump et al, No. 1:17CV00480 (E.D.N.Y. 2017). 8 Id. 9 U.S. Dep’t of State Memorandum (Jan. 27, 2017), http://www.politico.com/f/?id=00000159f6bd-d173-a959-ffff671a0001. 10 Id. On February 4, 2017, DOS temporarily reversed the provisional visa revocation in response to court orders. However, if someone’s visa had been “physically canceled,” the visa holder “must apply for a new visa at a U.S. embassy or consulate, absent a CBP decision to grant parole or waive the visa requirement at the port of entry.” See U.S. Dep’t of State, Bureau of Consular Affairs, Executive Order on Visas (Feb. 4, 2017), https://travel.state.gov/content/travel/en/news/important-announcement.html. 11 U.S. Dep’t of State Memorandum (Jan. 27, 2017) (“The revocation does not apply to visas in the following nonimmigrant classifications: A-1, A-2, G-1, G-2, G-3, G-4, NATO, C-2, or certain diplomatic visas.”). 12 22 C.F.R. § 41.122(b)(1) (noting that “[p]rovisional revocation shall have the same force and effect as any other visa revocation under INA 221(i), unless and until the revocation has been reversed.”); 22 C.F.R. § 42. 82(b) (same provision for immigrant visas).
7

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 20 of 47 PageID #: 1274
chose to leave the United States would no longer be deemed to have valid visas.13 With regards
to visa holders already present in the United States, an unnamed State Department spokesperson
remarked to a news reporter that “the revocation would have no impact on the legal status of
those already in the United States,”14 but as of February 14, 2017, there has been no official
statement from the State Department or the Department of Homeland Security confirming or
denying this, even as the State Department has temporarily stayed the revocation itself due to
current court orders.15 Furthermore, the plain text of INA § 237(a)(1)(B), 8 U.S.C. §
1227(a)(1)(B), as amended in 2004, states that all persons in the United States with revoked visas
are deportable. The full text of the Visa Revocation Memo remains unavailable on the State
Department website, although it has already impacted visa holders who were neither notified of
its existence nor its scope.16
13 Justin Jouvenal, Rachel Weiner & Ann E. Marimow, Justice Dept. Lawyer Says 100,000 Visas Revoked Under Travel ban; State Dept. Says About 60,000, Washington Post (Feb. 3, 2017), https://www.washingtonpost.com/local/public-safety/government-reveals-over-100000-visasrevoked-due-to-travel-ban/2017/02/03/7d529eec-ea2c-11e6-b82f687d6e6a3e7c_story.html?utm_term=.10f70cacabf9. 14 Josh Gerstein, State Department Notice Revoking Visas Under Trump Order Released, Politico (Jan. 31, 2017), http://www.politico.com/blogs/under-the-radar/2017/01/trump-visas-statedepartment-234454 (noting that “the [DOS memorandum] was made public in a filing in [sic]federal court of Boston”). 15 U.S. Dep’t of State, Bureau of Consular Affairs, Executive Order on Visas (Feb. 4, 2017), https://travel.state.gov/content/travel/en/news/important-announcement.html (noting that its provisional revocation “is now lifted and those visas are now valid” and that the State Department will “provide further updates as soon as information is available.”). 16 See Shannon Dooling, All Visas Revoked For People From 7 Barred Countries, Per State Dept., WBUR News (Feb. 7, 2017), http://www.wbur.org/news/2017/02/01/visas-revoked-statedepartment; see also Maria Sacchetti and Milton J. Valencia, With Visas Revoked, Travelers Barred Entry Despite Court Order, Boston Globe (Feb. 1, 2017), https://www.bostonglobe.com/metro/2017/02/01/document-filed-boston-court-reveals-visaswere-revoked-for-people-from-banned-countries/D6NBbEBA1HrF4IUrJjuljI/story.html; Amended Petition for Writ of Habeas Corpus and Complaint at n.12, Louhghalam v. Trump, No. 17-10154-NMG (D. Mass. Feb. 3, 2017), https://aclum.org/wp-content/uploads/2017/01/28.Louhghalam-Amended-Complaint.pdf (noting that the State Department memorandum was
8

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 21 of 47 PageID #: 1275
SUMMARY OF ARGUMENT Each year, hundreds of thousands of people apply for visas allowing them to participate in American society, often at the invitation of and benefit to U.S. institutions. Some of these visas allow people to visit relatives, tour the country, or receive life-saving medical treatment. Other visas allow immigrants to embark on a path to American citizenship, pursue higher education, or join the workforce, often in vital contribution to the U.S. economy. After a prolonged and complex vetting process, visas are issued to individuals who rely on their validity to then purchase plane tickets, leave jobs, and sell homes. Visa holders in the United States might make academic, personal, or business trips abroad, depending on their visas to return to America. Some of these individuals cannot return to their country of origin for fear of persecution. At the request of DHS, citing the January 27, 2017 Executive Order, the State Department revoked visas on a classwide basis with no individualized process mirroring their initial issuances. But the Executive Order neither authorizes visa revocation, nor does the Immigration and Nationality Act provide the Secretary of State with boundless discretion to do so in a categorical, classwide manner. Governing regulations require that revocation occur following a tailored determination that a particular individual is deemed ineligible for a visa. The statute and governing regulations cabin the Secretary of State’s power to ensure constitutionally adequate revocations that do not have impermissible retroactive effects. As the stories, statutory analysis, and legislative history below demonstrate, this Court should ensure that the federal government exercises its authority to revoke visas strictly on an individualized basis to protect individuals’ significant reliance interests and constitutional rights.
“never before disclosed to the plaintiffs, nor was it disclosed to this Court at the hearing on January 28-29, 2017”).
9

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 22 of 47 PageID #: 1276
ARGUMENT I. The U.S. Visa System Reflects a Highly Individualized Process Upon Which
Thousands of Individuals, Families, and Institutions in the United States Rely. Actors both inside and outside of the U.S. rely on the general functioning of a visa system that is premised on individualized determinations about whether noncitizens will be granted visas and allowed to enter the country. Private citizens, corporations, universities, the tourism industry, and other institutions in the U.S. all depend upon the visa system in order to conduct their lives and go about their daily business. These expectations crystalize once noncitizens go through the individualized process of applying for visas, passing security checks, and obtaining visas. These expectations also grow over time once noncitizens have been issued a valid visa; they buy plane tickets, sell property, quit jobs in their countries of origin, schedule surgeries, and take other steps to plan their visit or move to the U.S. Even before the formal visa process begins, many individuals who seek and will ultimately obtain visas have already invested time and resources into their decisions to pursue a visa. For example, many individuals who apply for “immigrant visas,” which generally require an intent to settle permanently in the U.S., by definition have U.S. citizen and lawful permanent resident family members who are sponsoring them for their visas.17 For instance, Hamdiyah Al Saeedi is a 65-year-old Iraqi woman whose son, a U.S. citizen and sergeant in the U.S. Army, spent five years “filling out endless forms” so that his parents could join him in the U.S. as lawful permanent residents.18 When Mrs. Al Saeedi’s husband died in December 2016, leaving
17 INA § 101(a)(16), 8 U.S.C. § 1101(a)(16); U.S. Customs and Border Protection, Immigrant Visas vs. Nonimmigrant Visas, https://help.cbp.gov/app/answers/detail/a_id/72/~/immigrantvisas-vs.-nonimmigrant-visas. 18 Lives Rewritten with the Stroke of a Pen, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/interactive/2017/01/29/nyregion/detainees-trump-travel-ban.html.
10

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 23 of 47 PageID #: 1277
her widowed and alone, the need for her to be reunited with her son only intensified.19 By the
time she finally was able to travel to the U.S. with her approved family visa petition, ready to be
admitted to the country as a lawful permanent resident, Mrs. Al Saeedi and her son had already
invested significant resources into the visa process.
Similarly, many individuals who apply for “non-immigrant visas” have already made
decisions and invested their time and effort to pursue studies, research, or employment in the United States.20 For example, individuals seeking “F1” student visas must first apply to a school approved by the Student and Visa Exchange Program.21 If accepted, potential students are
enrolled in a program, pay a fee, and then are issued an I-20 “Certificate of Eligibility for Nonimmigrant Student Status.”22 Only then are students able to apply for a visa to enter the U.S.
to attend their school. Some students spend years saving money and applying to schools before
they ever get to the stage of applying for a visa. Shadi Heidarifar, an Iranian philosophy student
recently admitted to New York University, spent three years saving money, gathering documents, and applying to universities.23 The application fees alone were enough for a family in Iran to live on for one month.24
Similarly, many employment-related visas require applicants to have a pre-existing
relationship with their potential employer. Some employment visa petitions require an approved
19 Id. 20 Some nonimmigrant visas can lead to permanent status in the U.S. and recognize that nonimmigrants may have a “dual intent”—that is, both a short-term intent to leave and a longterm intent to stay permanently. Matter of H-R-, 7 I&N Dec. 651, 654 (RC 1958); 8 C.F.R. §§ 214.2(h)(16), (l)(16), (o)(13), (p)(15). 21 8 C.F.R. § 213.2(f); U.S. Dep’t of State, Bureau of Consular Affairs, Student Visa, https://travel.state.gov/content/visas/en/study-exchange/student.html. 22 Id. 23 Michael D. Shear & Nicholas Kulish, Judge Blocks Part of Trump’s Immigration Order, The Seattle Times (Jan. 29, 2017), http://www.seattletimes.com/nation-world/panic-at-airports-astrumps-order-blocks-immigrants/. 24 Id.
11

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 24 of 47 PageID #: 1278
labor certification issued by the Department of Labor before a visa petition can be filed at all.25 Other employment visas require extensive applications and interviews prior to any visa application. In the medical field, for example, licensed physicians seeking H-1B visas must take exams and interview with potential employers through the residency process before applying for a visa.26 Dr. Kamal Fadlalla, a Sudanese medical resident, made multiple trips to the U.S. to interview with the Interfaith Medical Center in Brooklyn and take his entrance exam prior to receiving his H-1B visa.27 Each trip came with financial costs and resource investments by not only Dr. Fadlalla, but also the Interfaith Medical Center, which, like many hospitals, depends on the ability to recruit qualified doctors from across the world.28
Individuals’ and institutions’ investments into the visa process deepen at the stage of the visa application. For visas that require an initial petition to be approved by the U.S. Citizenship and Immigration Services (USCIS), part of the Department of Homeland Security (DHS), approved petitions are then sent to an intermediary processing center where the information about the petition is entered into a system that can be accessed by consular posts.29 For immigrant visas, once the intermediary processing center is ready to continue with visa processing, the applicant must submit additional fees, forms, and documents, including proof that someone in the U.S. will economically support them, before their application is forwarded to a
25 INA § 212(a)(5), 8 U.S.C. § 1182(a)(5). 26 Charles Ornstein, Trump’s Executive Order Strands Brooklyn Doctor in Sudan, ProPublica (Jan. 29, 2017), https://www.propublica.org/article/trumps-executive-order-strands-brooklyndoctor-in-sudan. 27 Id. 28 Id. (“Each year, around a quarter of the residents and fellows in advanced training programs around the U.S. attended medical school outside the country. While some of those are U.S. citizens or permanent residents, about 15 to 20 percent of the total are not.”). 29 8 C.F.R. §§ 204.2(c)(3)(i), (g)(3), (h)(2), (n).
12

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 25 of 47 PageID #: 1279
U.S. consulate for processing.30 Most immigrant visa applicants also must submit police
certificates31 and undergo a medical exam by an authorized physician, which includes a physical
and a mental evaluation.32 Nonimmigrant visa applicants additionally undergo considerable
processing before receiving their visas. They must first fill out a form, usually online, that
includes personal information, passport information, travel plans, previous U.S. travel, contacts
in the U.S., family, work, education and training history, and extensive security-related
questions.33 The form has a fee of $160 or more depending on the visa type.34 Most males ages
16 to 45 must fill out an additional form.35
With limited exceptions, all visa applicants between the ages of 14 and 79 must submit
photographs, have their fingerprints taken, and be interviewed at a U.S. consulate abroad.36
Those who live in countries without U.S. consulates must travel to a third country to have their
visas processed.37 Traveling to a far-away U.S. consulate can be very onerous. One 12-year-old
Yemini girl seeking to be reunited with her U.S. citizen parents and siblings had to go to an
immigrant visa interview in Djibouti after the U.S. consulate in Yemen closed.38 To get from
30 U.S. Dep’t of State Cable, 13 State 103210, DS-260 Worldwide Deployment (Aug. 13, 2013); INA § 213(a), 8 U.S.C. § 1183a; 8 C.F.R. § 213a(2). 31 22 C.F.R. § 42.65(b). 32 22 C.F.R. § 42.66; 9 FAM 504.4-7 (2015). 33 22 C.F.R. § 41.103(a); U.S. Dep’t of State, Consular Electronic Application Center, Form DS160, https://ceac.state.gov/GenNIV/Default.aspx. 34 U.S. Dep’t of State, Fees for Visa Services, https://travel.state.gov/content/visas/en/fees/feesvisa-services.html. 35 U.S. Dep’t of State Cable, 02-State-6020 (Jan. 11, 2002), reprinted in 79 No. 4 Interpreter Releases 118-19 (Jan. 21, 2002). 36 69 FR 78515 (Dec. 30, 2004); INA § 222(h), 8 US.C. § 1202(h); 22 C.F.R. § 41.102; 22 C.F.R. § 42.67(c). 37 9 FAM 504.4-8(E) (2016). 38 Josh Levin, Thanks to Donald Trump, A 12-Year-Old Girl With American Parents Is Stuck in Djibouti, Slate (Jan. 29, 2017), http://www.slate.com/blogs/the_slatest/2017/01/29/a_12_year_old_girl_is_stuck_in_djibouti_tha nks_to_trump_s_executive_order.html.
13

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 26 of 47 PageID #: 1280
Yemen to Djibouti, she took a 16-hour bus ride to the airport, flew to Jordan, and then made her
way to Djibouti.39 For decades, Iranians have had to leave Iran to apply for visas to come to the
U.S., as there is no U.S. consulate in Iran.40
At their interview, applicants must show both that they are eligible for the visa they are
seeking and that they are not subject to any of the many bars to admission.41 Unless the applicant
is eligible for a waiver, immigrant and nonimmigrant visas can be denied based on a wide range
of grounds of inadmissibility, including criminal history, security-related grounds, health-related
grounds, indigence, violations of immigration laws, and prior removals from the U.S.42 Through
the interview process and by reviewing all of the forms and documents provided by the
applicant, consular officers then determine on an individualized basis whether each applicant is
eligible for a visa.43
Most visa applicants must also provide additional, application-specific information. For
example, students may have to provide proof of their prior schooling, standardized test scores,
and proof that they can pay for all education, living, and travel expenses.44 Those seeking
39 Id. 40 9 FAM 504.4-8(E) (2016); Thomas Erdbring, Former American Embassy in Iran Attracts Pride and Dust, N.Y. Times (Oct. 31, 2013), http://www.nytimes.com/2013/11/01/world/middleeast/former-american-embassy-in-iranattracts-pride-and-dust.html?_r=0. 41 See generally INA §§ 201-210, 8 U.S.C. §§ 1151-1160; INA § 212, 8 U.S.C. § 1182. 42 See generally INA § 212(a), 8 U.S.C.§ 1182(a). For certain diplomatic and foreign government officials, DOS only has to accept their credentials in order to issue a visa. INA § 101(a)(15)(A), 8 U.S.C. § 1101(a)(15)(A); 8 C.F.R. § 214.2(a)(1) (“A visas” for diplomats and certain recognized foreign government employees); INA § 101(a)(15)(G), 8 U.S.C. § 1101(a)(15)(G) (“G visas” for certain international organization members). Those who are eligible for A visas and G visas are largely exempt from the grounds of inadmissibility except for certain security-related grounds. See INA § 102, 8 U.S.C. § 1102. 43 U.S. Dep’t of State, Bureau of Consular Affairs, Visitor Visa, https://travel.state.gov/content/visas/en/visit/visitor.html#apply. 44 22 C.F.R. § 41.61(b)(1)(ii); U.S. Dep’t of State, Bureau of Consular Affairs, Student Visa, https://travel.state.gov/content/visas/en/study-exchange/student.html.
14

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 27 of 47 PageID #: 1281
medical treatment must present a diagnosis from their local doctor explaining why they need treatment in the U.S., proof that a provider in the U.S. has agreed to provide the needed treatment, and proof that the visa seeker can pay for all of their travel, living, and medical expenses while in the U.S.45
All visa applications go through multiple levels of individualized security review. Applicants’ biographic data and fingerprints are checked against the Consular Consolidated Database, which contains over 143 million records of past visa applications and comments by consular officers, and links to multiple DHS and FBI databases, including DHS’s Automated Biometric Identification System (IDNET), the FBI’s Integrated Automated Fingerprint Identification System (IAFIS), and DHS’s Traveler Enforcement Compliance System (TECS).46 DOS uses facial recognition software to compare applicants’ photos against photos from the Terrorist Screening Center.47 Consular officers also check applicants’ data against securityrelated “lookout databases,” including the Consular Lookout and Support System (CLASS) database.48 Pursuant to § 428 of the Homeland Security Act (HAS),49 DHS is now heavily involved in providing regulatory guidance for visa processing at consulates, and DHS employees are assigned to most consulates and diplomatic posts.50 If there is a match between an applicant and the CLASS database, consular officials “must assume that the finding was correct” and may
45 U.S. Dep’t of State, Bureau of Consular Affairs, Travel for Medical Treatment, https://travel.state.gov/content/visas/en/visit/visitor.html#apply. 46 Ruth Ellen Wasem, Cong. Research Serv., R43589, Immigration: Visa Security Policies 17-18 (2014). 47 Id. 48 Id. 49 PL 107-296, 116 Stat. 2135 (Nov. 25, 2006). 50 6 U.S.C. § 236; Colin L. Powell and Thomas J. Ridge, Memorandum of Understanding between the Secretaries of State and Homeland Security Concerning the Implementation of Section 428 of the Homeland Security Act of 2002, September 29, 2003.
15

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 28 of 47 PageID #: 1282
not look behind DHS’s finding.51 In sum, both DOS and DHS are involved in multilevel
security-related reviews of visa applicants. Only after this highly individualized process is
complete will a visa be granted.
Approved nonimmigrant visas are issued for varying lengths of time and are valid for one or multiple entries.52 Approved immigrant visas are issued in passports and returned to the applicant with a sealed packet to be presented at the border.53 Generally the immigrant visa
holder must travel to the U.S. within six months or less and must pay an additional fee to USCIS.54
Once a visa is issued, and during the period of time that it remains valid, visa holders
upend their lives in reliance on the visas. For example, when Fuad Sharef Suleman and his
wife, Arazoo Sulemen, learned that their Kurdish family of five were granted special immigrant
visas after waiting for two years, they quit their jobs at a pharmaceutical company and as a
kindergarten teacher, sold their house, belongings, and vehicles, and removed their three children from their schools.55 They spent $5,000 making travel arrangements and arranged for their friends in Nashville, Tennessee to help find them a house and jobs.56 Similarly, when U.S.
citizen Douman Khoshbakhti’s parents from Iran were granted immigrant visas to join him in
51 U.S. Dep’t of State Cable, 05-State-066722 (Apr. 12, 2005) at ¶¶ 7-8, published on AILA Doc. No. 05052060. 52 22 C.F.R. §§ 41.113(e), (f); U.S. Dep’t of State, Bureau of Consular Affairs, What the Visa Expiration Date Means, https://travel.state.gov/content/visas/en/general/visa-expirationdate.html. 53 22 C.F.R. § 42.73. 54 22 C.F.R. § 42.72(a); USCIS, Immigrant Fee Payment to Move USCIS (May 2, 2013). 55 Ariana Maia Sawyer, Kurdish family head to Nashville sent back to Iraq, The Tennessean (Jan. 29, 2017), http://www.tennessean.com/story/news/local/2017/01/29/kurdish-family-headednashville-sent-back-iraq/97220858/. 56 Arwa Gaballa, Eric Knecht & Michael Georgy, Trump order dashes dreams of Iraqi family bound for the United States, Reuters (Jan. 30, 2017), http://www.reuters.com/article/us-usatrump-immigration-iraqis-idUSKBN15D0FK.
16

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 29 of 47 PageID #: 1283
the U.S, his mother immigrated first while his father stayed in Tehran to “tie up the loose ends of a lifetime,” selling his car and the family’s construction supplies shop.57 Even those coming to
the U.S. temporarily make substantial investments once a visa has been issued. For example, Dr.
Samira Asgari, an Iranian national who was granted a fellowship at Harvard Medical School, quit her job in Switzerland and rented out her apartment in preparation for the fellowship.58
Harvard Medical School similarly depended on the availability of visas in order to recruit Dr. Asgari and other “talented young researchers from around the globe.”59
Once visa holders enter the U.S., they make endless important life decisions premised on
the ability to maintain their visa and travel outside of the U.S. Those who enter on student visas,
for example, are usually admitted for “duration of status,” meaning for as long as their visa is valid and they are “making normal progress toward completing a course of study.”60 State
Department guidance thus provides that “[p]osts should facilitate the reissuance of student visas
so that these students can travel freely back and forth between the homeland and the United States.”61 Some students spend years or even decades getting their education in the U.S. and are
able to get work visas. Before and after completing a course of study, student visa holders may be eligible for limited work authorization and optional practical training.62
Similarly, employment visa holders already in the U.S. rely on their visas to maintain
their personal and professional contacts abroad. For example, Murtadha Al Tameemi, an Iraqi
57 Lives Rewritten with the Stroke of a Pen, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/interactive/2017/01/29/nyregion/detainees-trump-travel-ban.html. 58 Felicia Gans, I told him I do have a valid visa, but he told me that it doesn’t matter, Boston Globe (Jan. 29, 2017), https://www.bostonglobe.com/metro/2017/01/28/told-him-have-validvisa-but-told-that-doesn-matter/yttREc10s5cc7yjX3d48hJ/story.html. 59 Id. 60 8 C.F.R. § 214.2(f)(5)(i). 61 U.S. Dep’t of State Cable, 05-State-180015 (Sept. 28, 2005) at ¶6, published on AILA InfoNet at Doc. No. 05110115. 62 8 C.F.R. §§ 214.2(f)(10)(i), (ii).
17

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 30 of 47 PageID #: 1284
national, originally came to the U.S. through a cultural exchange program over ten years ago, and then was able to get a work visa. 63 He currently works in Seattle as an engineer at Facebook.64 His family was recently resettled in Vancouver, Canada, and, until recently, he was able to reestablish a close relationship with them by visiting regularly.65 Babak Seradjeh, an
Iranian-Canadian physics professor from Indiana University, relies on his visa to be able to conduct research funded by the National Science Foundation.66 Prior to the EO, he could travel
relatively freely in order to conduct research that his university and other American institutions value deeply.67 Valid visa holders have the expectation and make concrete plans on the basic
premise that if they abide by the terms of their visa, it will remain valid for the specified term.
Employers and institutions in the U.S. similarly rely on the availability of visas and the freedom
of movement of their employees and students in order to secure attractive candidates and carry out their missions.68
In sum, noncitizens seeking to come to the U.S. temporarily or permanently make choices
about where to live, study, and work. After choosing to come to the U.S., they go through a
complex process whereby the government makes a series of individualized determinations about
each visa holder’s eligibility for the visa they seek. Once visas are granted, noncitizens rely on
their visas to rent apartments, buy homes, and otherwise settle for a period of time in the U.S.,
63 Julie Bort, This Iraqi Facebook engineer was invited to the US under President Bush, and now he’s feeling trapped, Business Insider (Jan. 30, 2017), http://www.businessinsider.com/iraqifacebook-engineer-caught-in-the-immigration-ban-2017-1. 64 Id. 65 Id. 66 Lyric Lewin, “These are the faces of Trump’s ban,” CNN, http://www.cnn.com/interactive/2017/01/politics/immigration-ban-stories/. 67 Id. 68 See, e.g., Order, State of Washington v. Trump, No. 17-35105, D.C. No. 2:17-cv-00141 at 9– 10, (Feb. 9, 2017) (per curiam) (summarizing the State of Washington’s arguments that the EO causes “a concrete and particularized injury to their public universities”).
18

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 31 of 47 PageID #: 1285
while at the same time being free to travel outside of the country in order to attend weddings, funerals and conferences; conduct research; visit family; and otherwise live their lives. These individualized visa determinations, therefore, have great implications for the noncitizens themselves, as well as for their American schools, employers, family members, and communities.
II. Nothing in the Executive Order or the Immigration and Nationality Act and Implementing Regulations Directs or Authorizes the Federal Government’s Categorical, Classwide Revocation of Visas.
The Visa Revocation Memo cites two sets of sources for its authority to engage in classwide visa revocation: First, section 3(c) of the Executive Order and INA § 212(f),69 upon which the Executive Order relies; and second, INA § 221(i)70 and the implementing regulations for visa revocations under 22 C.F.R. §§ 41.122 and 42.82.71 None of these sources direct or authorize the classwide revocation of visas. First, the Executive Order itself does not explicitly or implicitly direct DOS to revoke visas, nor does INA § 212(f) require or permit classwide revocation. Second, INA § 221(i), the only statutory authority for visa revocation, does not contemplate such a categorical and overbroad classwide revocation. Instead, INA §221(i) and its implementing regulations specifically restrict DOS’s capacity to revoke visas to individualized adjudicatory revocations, rendering the DOS’s Visa Revocation Memo an impermissible, unauthorized exercise of the federal government’s authority.
69 8 U.S.C. § 1182(f). 70 8 U.S.C. § 1201(i). 71 U.S. Dep’t of State Memorandum (Jan. 27, 2017) (“Upon request of the U.S. Department of Homeland Security. . . and in implementation of section 3(c) of the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals, I hereby provisionally revoke all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen”).
19

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 32 of 47 PageID #: 1286
A. The Executive Order and the Statute It Relies Upon, INA § 212(f), Do Not Authorize Categorical and Classwide Visa Revocation.
The Executive Order on its face does not direct the Secretary of State to begin wide-scale
visa revocations.72 The Executive Order claims only one source of authority, INA § 212(f), and
nothing in § 212(f) mention visas or provides the President or the Secretary of State with
authority to revoke visas on a classwide basis.73 INA § 212(f) only permits the President to
suspend “entry” into the United States.74 Although “entry” is no longer formally defined in the
INA, it has historically described when an individual makes herself physically present in the
72 See U.S. Dep’t of State, Bureau of Consular Affairs, Executive Order on Visas (Feb. 4, 2017), https://travel.state.gov/content/travel/en/news/important-announcement.html. In arguing that the Executive Order does not direct the State Department to revoke visas, amici do not suggest that the State Department acted independently when it issued the visa revocation memo. Rather, the text of the memorandum itself notes that it was directed by the Department of Homeland Security, and the reference to the Executive Order suggests that the White House itself likely requested this action. However, the text of the Executive Order does not specify that visas should be revoked on a classwide basis. 73 INA § 212(f) provides in relevant part:
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. 74 Id. Furthermore, as the Department of Justice recognized less than a month after 9/11, “no President had invoked section 212(f) for all nationals of a particular country but has tied the suspension of entry to subsets of nationalities that have engaged in a specific activity.” See Dan Levin, Counsel to the Attorney General Memorandum on Presidential Proclamation Under Section 212(f) of the Immigration and Nationality Act, U.S. Department of Justice Office of the Deputy Attorney General (Oct. 3, 2001) at 2, https://www.scribd.com/document/17819320/T5-B61-Condor-Fdr-10-3-01-Levey-Memo-RePresidential-Proclamation-Section-212-f-Immigration-and-Nationality-Act; see also David A. Martin, Trump’s “refugee ban” - annotated by a former top Department of Homeland Security lawyer (Jan. 3, 2017), http://www.vox.com/the-big-idea/2017/1/30/14429866/trump-refugeeban-executive-order-annotated. The history of executive orders issued under INA § 212(f) suggests that a classwide suspension of entry based on national origin without exception is unprecedented, but instead has been further cabined by alleged incriminating actions taken by impacted individuals or suspected connections with nefarious groups that those individuals may have. See Kate M. Manuel, Executive Authority to Exclude Aliens: In Brief, Congressional Research Service (Jan. 23, 2017) at p. 6–10, https://fas.org/sgp/crs/homesec/R44743.pdf.
20

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 33 of 47 PageID #: 1287
United States.75 Matter of Z, 20 I&N Dec. 707, 708 (BIA 1993) (describing entry as “crossing
into the territorial limits of the United States, inspection and admission by an immigration officer
or actual and intentional evasion of inspection at the nearest inspection point; and freedom from
official restraint.”).
Visa revocations are not required to suspend entry. U.S. Customs and Border Protection
(CBP) regularly restricts entry for individuals as a part of its travel screening procedures without revoking or otherwise cancelling visas.76 Visa revocation has wide-ranging implications beyond
barred entry. A person present in the U.S. with a revoked visa is subject to removal under INA § 237(a)(1)(B),77 and federal law bars aircrafts from boarding people with revoked visas, thus making those people unable to present themselves at the U.S. border for entry.78 In this case, the
Visa Revocation Memo circumvented this Court’s order enjoining the federal government from
barring entry of valid visa holders by preventing those individuals from boarding their flights to the U.S.79 Visa holders in other countries attempting to board their U.S. bound flights were told they had invalid visas and were thus unable to benefit from this Court’s order.80
75 See Rosenberg v. Fleuti, 374 U.S. 449, 452 (1963) (“The term ‘entry’ means any coming of an alien into the United States, from a foreign port or place or from an outlying possession”); Haitian Refugee Center, Inc. v. Gracey, 600 F. Supp. 1396 (D.D.C. 1985) (finding that interdiction of Haitians lacking visas attempting to arrive to the United States by sea was permissible pursuant to the President’s authority to suspend entry under INA § 212(f)). 76 See Lisa Seghetti, Cong. Research Serv., R43356, Border Security: Immigration Inspections at Port of Entry (2014). 77 8 U.S.C. § 1227(a)(1)(B). 78 INA § 273, 8 U.S.C. § 1323 (barring transportation companies from bringing anyone to the U.S. without a valid visa). 79 Order granting Motion to Stay, January 28, 2017, Darweesh et al v. Trump et al, 1:17CV00480. 80 See, e.g., Felicia Gans, I told him I do have a valid visa, but he told me that it doesn’t matter, Boston Globe (Jan. 29, 2017), https://www.bostonglobe.com/metro/2017/01/28/told-him-havevalid-visa-but-told-that-doesn-matter/yttREc10s5cc7yjX3d48hJ/story.html.
21

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 34 of 47 PageID #: 1288
Previous exercises of INA § 212(f) authority have not required the classwide revocation
of visas, and any direction given to the State Department in past executive orders under INA §
212(f) have historically been limited to identifying individuals who have undertaken specific
activity rather than revoking visas on a classwide basis. 81 Thus an exercise of authority under
INA § 212(f)—assuming such authority is legal—neither authorizes nor requires the revocation
of visas.
B. Neither INA § 221(i) Nor Its Implementing Regulations Authorize Classwide Visa Revocation.
Of the sources of authority cited in the Visa Revocation Memo, only INA § 221(i) and its
implementing regulations speak at all to the State Department’s authority to revoke visas. 82
These sources do not authorize classwide visa revocation; rather, they provide the State
Department with authority to make individualized decisions to revoke visas based on new
81 Previous executive orders invoking INA § 212(f) have explicitly requested the Secretary of State to take action but in such a way that the critical determination is whether an individual fits within the identified class—they have not authorized blanket revocation of visas. For instance, President Clinton suspended entry of members of the Sierra Leonean military junta under INA § 212(f), but dictated that “persons covered” by the suspension of entry would be “identified” by the Secretary of State. Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Are Members of the Military Junta in Sierra Leone and Members of Their Families, 63 Fed. Reg. 2871 (Jan. 14, 1998). In that case, the executive order recognized that the Secretary of State’s authority was cabined by a requirement to make individualized assessments as to whether a person fits within the scope of the President’s suspension.
Other executive orders, dating as far back as 1985, enacted similar provisions. See, e.g., Suspension of Entry as Nonimmigrants by Officers or Employees of the Government of Cuba or the Communist Party of Cuba, 50 Fed. Reg. 41329 (Oct 4., 1985); Proclamation to Suspend Entry as Immigrants or Nonimmigrants of Persons Engaged in or Benefitting From Corruption, 69 Fed. Reg. 2287 (Jan. 12, 2004); Proclamation 7524 Suspension of Entry as Immigrants and Nonimmigrants of Persons Responsible for Actions That Threaten Zimbabwe’s Democratic Institutions and Transition to a Multi-Party Democracy, 67 Fed. Reg. 8857 (Feb. 26, 2002); Proclamation 8158 Suspension of Entry as Immigrants and Nonimmigrants of Persons Responsible for Policies and Actions That Threaten Lebanon’s Sovereignty and Democracy, 72 Fed. Reg. 36587 (Jul. 3, 2007). No comparable stipulation exists in the current Executive Order at issue. 82 U.S. Dep’t of State Memorandum (Jan. 27, 2017) (“[Pursuant to sections 212(f) and 221(i) of the Immigration and Nationality Act and 22 CFR 41.122 and 42.82 . . .”).
22

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 35 of 47 PageID #: 1289
information or after revisiting a prior determination. The plain language of the statute and
regulations, the statutory framework and purpose, the legislative history, and other tools of
statutory construction support this understanding of INA § 221(i) and its implementing
regulations.
The language of INA § 221(i) and its implementing regulations, 22 C.F.R. §§ 41.122 and
42.82, contemplate that DOS has the authority to make individualized visa revocation decisions.83 A plain reading of the statute makes clear that visa revocation is an individualized adjudicatory procedure.84 INA § 221(i) provides: “After the issuance of a visa or other
documentation to any alien, the consular officer or the Secretary of State may at any time, in his
discretion, revoke such visa or other documentation.” By using the singular (“a visa,” “any
alien,” and “such visa”), the plain language demonstrates that DOS should make case-by-case
assessments about the need to invalidate an individual’s previously approved visa. Just as the
granting of a visa requires individualized evaluations, revocation of a visa requires DOS to make a case-by-case determination.85
83 The non-discrimination provision of INA § 202(a)(1), 8 U.S.C. § 1152(a)(1), prohibiting discrimination in the issuance of an immigrant visa because of a person’s nationality or place of birth, also underscores the invalidity of the federal government’s reading of its authority under INA § 221(i). 84 See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992) (“The controlling principle in this case is the basic and unexceptional rule that courts must give effect to the clear meaning of statutes as written); United States v. Providence Journal Co., 485 U.S. 693, 700-01 (1988). 85 Diplomatic visas present an exception to this general rule of individualized revocation where the United States severs diplomatic ties with the visa holder’s country. Diplomatic visas are statutorily distinct from other non-immigrant visas, in that diplomatic visas must be “accepted by the President or by the Secretary of State” and are based on de jure recognition of the visa holder’s country. 8 U.S.C. § 1101(a)(15)(A); see also see also INA § 101(a)(15)(G) (international organization visas based on accreditation and de jure recognition by the United States). There are at least two instances where, invoking statutory authority under INA § 221(i), the Secretary of State has revoked diplomatic visas. See Public Notice, Revocation of Certain Nonimmigrant Visas, 45 Fed. Reg. 24437 (April 9, 1980) (providing notice that the Secretary of
23

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 36 of 47 PageID #: 1290
Federal regulations also demonstrate the individualized nature of visa issuance and
revocation. Sections 41.122(b)(2) and 42.82(b) of the C.F.R. state that the Secretary “may
provisionally revoke a [nonimmigrant or immigrant] visa while considering information related
to whether a visa holder is eligible for the visa.” While a provisional revocation may be reversed
by DOS, “[p]rovisional revocation shall have the same force and effect as any other visa
revocation under INA 221(i).”86 Applicants should be notified of the intent to revoke a visa if it
is practicable.87 Nonimmigrant visa holders may have their visas revoked if they are arrested for
a DUI, or if the U.S. government receives information about a “suspected ineligibility.”88 The
revocation of a visa, therefore, requires the government to consider a visa holder’s individual
circumstances in order to determine whether revocation is appropriate.
A holistic89 reading of the INA further indicates that INA § 221(i) should be read to
authorize individualized visa revocation. When Congress authorizes action on a classwide basis,
State had revoked “all nonimmigrant visas issued to nationals of Iran pursuant to section 101(a)(15)(A) of the Immigrant and Nationality Act [diplomatic provision]”); Public Notice, Revocation of Certain Nonimmigrant Visas, 46 Fed. Reg. 26976 (May 15, 1981) (noting that “[t]his action has been taken because of the general pattern of unacceptable conduct by the People’s Bureau of the Social People’s Libyan Arab Jamahiriya which is contrary to United States interest and in violation of acceptable norms of diplomatic behavior.”).
Diplomatic visas are sui generis from other classes of visas. The screening procedures are generally based on the applicant’s diplomatic credentials and the country’s diplomatic status with the U.S. in order to issue the visa. See INA § 101(a)(15)(A), 8 U.S.C. § 1101(a)(15)(A); 8 C.F.R. § 214.2(a)(1) (“A visas” for diplomats and certain recognized foreign government employees); see also INA § 101(a)(15)(G), 8 U.S.C. § 1101(a)(15)(G) (“G visas” for certain international organization members); 9 FAM 402.4. Furthermore, these revocations only occurred after the U.S. formally severed ties with a particular nation, consistent with international customary law and the Vienna Conventions on Diplomatic Relations and Consular Relations. See Introduction and Summary to Opinions of the Office of Legal Counsel Relating to the Iranian Hostage Crisis, 4A U.S. Op. Off. Legal Counsel 7, 84, 1894 WL 54314 (Oct. 1, 1984). 86 22 C.F.R. § 41.122(b)(1); 22 C.F.R. §§ 42.82(b). 87 22 C.F.R. § 41.122(c); 22 C.F.R. §§ 42.82(c). 88 AILA/DOS Liaison Meeting (Apr. 7, 2016), published on AILA Doc. No. 16041133. 89 See Smith v. United States, 508 U.S. 223, 234 (1993) (“Just as a single word cannot be read in isolation, nor can a single provision of a statute”); United Sav. Ass'n v. Timbers of Inwood Forest
24

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 37 of 47 PageID #: 1291
it does so explicitly, as in INA § 212(f), which permits the President to suspend entry for “any
aliens or of any class of aliens.”90 The term “class of aliens” is notably absent from INA § 221(i)
which only provides for the revocation of the visa of “any alien.”91 Reading INA § 221(i) as a
basis for DOS to revoke visas for classes of individuals under the language “any alien” would
render the language in INA § 212(f) suspending entry to “any alien or of any class of aliens,”
superfluous.92 Such a reading would allow the federal government to combine the authority to
“revoke visas” on an individualized basis93 and the authority to suspend entry for a “class of
aliens”94 to justify revoking visas on a classwide basis—an impermissible statutory authority
mashup. Such a reading therefore cannot be squared with the statute or regulations as a whole.
Legislative history also reveals that when drafting INA § 221(i), Congress considered
visa revocation to be an individualized procedure. Congress first recognized the authority of
DOS to revoke visas in 1952, when it passed the Immigration & Nationality Act (also known as
the McCarran-Walter Act), the text of which is included in section 221(i).95 The House
Assocs., 484 U.S. 365, 371 (1988) (“statutory construction, however, is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme”). 90 INA § 212(f). 91 INA § 221(i). 92 See Ratzlaf v. United States, 510 U.S. 135, 140 (1994); Kungys v. United States, 485 U.S. 759, 778 (1988) (Scalia, J., plurality opinion); South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 510 n.22 (1986) (for statutory interpretation canon of avoiding interpreting provision in a way that would render other provisions of the statute superfluous or unnecessary). 93 INA § 221(i); 22 C.F.R. §§ 41.122 and 42.82. 94 INA § 212(f). 95 The original text of Section 221(i) stated in full:
After the issuance of a visa or other documentation to any alien, the consular officer of the Secretary of State may at any time, in his discretion, revoke such visa or other documentation. Notice of such revocation shall be communicated to the Attorney General, and such revocation shall invalidate that visa or other documentation from the date of issuance: Provided, That carriers or transportation companies, and masters, commanding officers, agents, owners, charterers, or consignees,
25

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 38 of 47 PageID #: 1292
Committee on the Judiciary Report indicates that the drafters apparently considered, but never
implemented, the creation of a semi-judicial board similar to the Board of Immigration Appeals
that would have jurisdiction to review consular decisions pertaining to the granting or refusal of visas.96 The drafters of the statute however, declined to do so because they concluded that “the
Secretary of State will have under this bill ample authority to provide within the Department of
State for a system of cooperation . . . so as to be able to advise and assist such officers in reaching their decision in more complex individual cases pending before them.”97 Furthermore,
when the INA was amended in 2004 to make visa revocation a ground of deportability and to
drastically reduce judicial review of those visa decisions, the drafters explained that the changes
stemmed from concern about the threat posed by individuals who might take advantage of loopholes in the immigration system to remain in the country while on a revoked visa.98 Thus §
221(i) revocation has historically been understood by Congress to require individualized
determinations.
Finally, the canon of constitutional avoidance requires courts to read provisions so that
they do not pose constitutional questions. Clark v. Martinez, 543 U.S. 371, 380–81 (2005)
(“[w]hen deciding which of two plausible statutory constructions to adopt, a court must consider
shall not be penalized under section 273 (b) for action taken in reliance on such visas or other documentation, unless they received due notice of such revocation prior to the alien’s embarkation.” Immigration and Nationality Act of 1952, Pub. L. No. 414, 66 Stat. 192. 96 See H.R. Rep. No. 1365, at 36 (1952) (“[m]any suggestions were made to the committee with a view toward creating in the Department of State a semi judicial board, similar to the Board of Immigration Appeals, with jurisdiction to review consular decisions pertaining to the granting or refusal of visas . . .”). 97 See id. 98 See H. Rep. 108-723, pt. 5 at 189 (2004) (“The section will prevent an alien whose visa has been revoked to challenge the underlying revocation in court, where the government might again be placed in a position of either exposing its sources or permitting a potentially dangerous alien to remain in the U.S.”).
26

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 39 of 47 PageID #: 1293
the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems—the other should prevail.”); Pierre v. Holder, 738 F.3d 38, 48 (2d Cir. 2013). As petitioners ably argue, the Executive Order in this case has serious constitutional defects, which, in turn, infect the Visa Revocation Memo.
First, blatant animus towards Muslims motivates the EO and thus the Visa Revocation Memo, in violation of both the Establishment Clause of the First Amendment and the equal protection component of the Due Process Clause, both of which prohibit the government from disfavoring one religious group over another. Cf. Larson v. Valente, 456 U.S. 228, 244 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”); United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (“The Constitution’s guarantee of equality must at the very least mean that a bare [legislative] desire to harm a politically unpopular group cannot justify disparate treatment of that group.”). On December 7th 2015, then presidential candidate Donald Trump posted a press statement on his website that called for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”99 In a June 2016 speech responding to the terror attack in Orlando, Florida, Mr. Trump pledged to suspend immigration from areas of the world where there is a “proven history of terrorism against the United States, Europe, or our allies.”100 According to public statements by Mr. Trump’s advisor, Rudolph Giuliani, on the day the Executive Order was signed, this new formulation reflected an
99 Press Release, Donald J. Trump Statement on Preventing Muslim Immigration, (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslimimmigration 100 Press Release, Donald J. Trump Addresses Terrorism, Immigration and National Security, (June 13, 2016), https://www.donaldjtrump.com/press-releases/donald-j.-trump-addressesterrorism-immigration-and-national-security.
27

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 40 of 47 PageID #: 1294
instruction by Mr. Trump to his advisors to find a way to implement the “Muslim ban” “legally.”101
Second, the EO and thus the Visa Revocation Memo raise serious due process concerns. The Due Process Clause applies to all persons in the United States, regardless of immigration status. Zadvydas v. Davis, 533 U.S. 678, 693 (2001); Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007). A temporary absence from the country does not deprive residents of their right to due process. See, e.g., Landon v. Plasencia, 459 U.S. 21, 33 (1982) (“[T]he returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.”) (internal citation omitted). The EO and the Visa Revocation memo also infringe on the constitutionally protected liberty interest in travel. Kent v. Dulles, 357 U.S. 116, 125-26 (1958) (holding that Secretary of State could not deny passports to Communists on the basis that the right to travel abroad is a constitutionally protected liberty interest). Due process requires that lawful permanent residents and visa holders not be denied re-entry to the United States without “at a minimum, notice and an opportunity to respond.” United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014); Burger v. Gonzales, 498 F.3d 131 (2007). By providing neither, the EO and the Visa Revocation Memo contravene the Due Process Clause.
The federal government’s interpretation of its statutory authority under INA § 221(i) cannot be what Congress intended, as it results in the government violating the Constitution for the reasons stated above. Thus, applying the constitutional avoidance canon, the Court should read INA § 221(i) as requiring individualized visa revocation determinations.
101 Rebecca Savransky, Giuliani: Trump Asked Me How to do a Muslim Ban “Legally,” The Hill (Jan. 29, 2017), http://thehill.com/homenews/administration/316726-giuliani-trump-asked-mehow-to-do-a-muslim-ban-legally.
28

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 41 of 47 PageID #: 1295
In sum, the Visa Revocation Memo is an impermissible implementation of the EO and an impermissible attempt to fuse elements of INA § 212(f) with INA § 221(i)—two distinct statutory provisions, neither of which authorizes classwide visa revocation. Furthermore, the statutes and regulations governing visa revocations, as well as the canon of constitutional avoidance, only allow for individualized visa revocations.
III. The Visa Revocation Memo Has an Impermissibly Retroactive Effect In Light of Visa Holders’ Settled Expectations.
The classwide basis of the Visa Revocation Memo violates the principle that agency rules should be applied prospectively, not retroactively, absent express statutory authority. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“[A]dministrative rules will not be construed to have retroactive effect unless their language requires this result”). The presumption against retroactive rulemaking is rooted in critical interests in fairness and preserving settled expectations. As the Supreme Court has cautioned, “[r]etroactive statutes raise special concerns. ‘The Legislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals.’” I.N.S. v. St. Cyr, 533 U.S. 289, 315-16 (2001) (citations omitted).
“A statute, order, or edict ‘operates retroactively’ when it seeks to impose ‘new legal consequences to events completed before its’ announcement.” De Niz Robles v. Lynch, 803 F.3d 1165, 1168 (10th Cir. 2015) (Gorsuch, J.) (citing I.N.S. v. St. Cyr, 533 U.S. at 321). An agency generally does not act retroactively when it acts like a judge, that is, when it “appl[ies] preexisting rules of general applicability to discrete cases and controversies.” Id. at 1172. However, an agency acts like a legislator, rather than a judge, when it “announc[es] a new rule of general applicability.” Id. When acting like a legislator, an agency’s rules may have retroactive
29

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 42 of 47 PageID #: 1296
effect only when “that power is conveyed by Congress in express terms.” Bowen, 488 U.S., at 208; City of New York v. Permanent Mission of India to United Nations, 618 F.3d 172, 192 (2d Cir. 2010).
A statute may permit retroactivity for individuals while not allowing it for a class. The Supreme Court made this point in Bowen, where it forbid retroactive promulgation of cost-limit rules under a provision of the Medicare Act. 488 U.S., at 205. In that case, the Health Secretary attempted to reissue previously contested regulations that changed the method by which government reimbursements to health care providers would be calculated. Id. The Court explained that the language of the relevant provision clearly contemplated individualized assessment, noting both its use of the singular and observing that “it is difficult to see how a corrective adjustment could be made . . . without performing an individual examination of the provider’s expenditures in retrospect.” Id. Thus it was permissible for the Department of Health and Human Services (HHS) to request reimbursement from health care providers it determined, after individualized consideration, had been overcompensated by mistake. Id. at 209. But it was not permissible for HHS to change the rules for calculating cost-limits and then retroactively request reimbursements from every health care provider on the basis of that new rule. Id. In other words, while the provision in question permitted individualized reimbursement payments made on a case-by-case and backward looking basis, the provision did not authorize retroactivity in the agency’s rulemaking. Id.
Here, by categorically revoking the visas of nationals from the countries affected by the Executive Order without any individualized determination, the federal government is imposing new rules of general applicability that create new legal consequences for already settled behavior without express statutory authority to do so. The rationale for the anti-retroactivity rule is plainly
30

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 43 of 47 PageID #: 1297
present in this case. Under the Visa Revocation Memo, a broad class of visa holders face revocation of their right to live in and travel in and out of the United States. They lose the money they have spent on the visa process, the educational programs they have chosen to enroll in in the U.S., the jobs they have accepted, and the lives they are living in the U.S. based on a nonindividualized across-the board rule.
The Supreme Court has recognized the applicability of the anti-retroactivity principle in the specific context of a noncitizen facing a bar to travel due to a new rule. In considering a case where a permanent resident did not face deportation if he stayed in the U.S., but did if he traveled, the Court wrote:
Beyond genuine doubt, we note, the restraint [on travel placed] on lawful permanent residents like Vartelas ranks as a “new disability.” Once able to journey abroad to fulfill religious obligations, attend funerals and weddings of family members, tend to vital financial interests, or respond to family emergencies, permanent residents situated as Vartelas is now face potential banishment. Vartelas v. Holder, 566 U.S. 257, 267-68 (2012). The Visa Revocation Memo places this same disability on thousands of lawful permanent residents, F1 student visa holders, J1 academic exchange visa holders, H1-B employees and other visa holders. Having invited these persons into the United States and encouraged them to order their lives around properly issued visas, the Visa Revocation Memo has, at a minimum, revoked the visas that allow them to travel and, at worst, subjected them to potential deportation over a past fact—their nationality—that they are powerless to change. Id. (noting that it is no answer to the retroactivity problem to say that the individual could have chosen not to travel after the new rule was announced). See also Chew Heong v. United States, 112 U.S. 536, 539 (1884) (refusing to read statute as impairing the right to Chinese immigrants who lived in the United States to return to their homes following travel due to new statute that discriminated against persons of Chinese origin).
31

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 44 of 47 PageID #: 1298
The retroactive effects of the Visa Revocation Memo are devastating. If it is deemed valid, Shadi Heidarifar, the Iranian philosophy student previously introduced who spent three years researching schools and was admitted to New York University, must now either begin her student visa application process all over again or apply for higher education in a different country, resulting in a loss of thousands of dollars already spent, and the loss of potential tuition money for New York University.102 Murtadha al Tameemi, the Facebook engineer who has lived in Seattle for ten years, now risks invalidating his visa if he travels to nearby Vancouver to visit his family, who are also barred from coming to Seattle to see him.103 Douman Khoshbakhti’s parents, the American citizen whose parents had visas to join him to live in America, would not only be unable to see their son, but cannot roll back the clock to before they sold their sole source of income, a construction supply shop, to fund a trip to America.104 Dr. Kamal Fadlalla, the Sudanese medical resident, would no longer be able to return to his home, friends, patients, and life in the U.S.105 Part of the motivation for the presumption of nonretroactivity is to prevent a decisionmaker from “punish[ing] those who have done no more than order their affairs around existing law.” De Niz Robles v. Lynch, 803 F.3d at 1174-75 (Gorsuch, J.). In this case, the Visa Revocation Memo punishes immigrant and nonimmigrant visa holders who did nothing more than order their affairs and develop settled expectations under
102 Michael D. Shear & Nicholas Kulish, Judge Blocks Part of Trump’s Immigration Order, The Seattle Times (Jan. 29, 2017), http://www.seattletimes.com/nation-world/panic-at-airports-astrumps-order-blocks-immigrants/. 103 Julie Bort, This Iraqi Facebook Engineer was Invited to the US under President Bush, and Now He’s Feeling Trapped, Business Insider (Jan. 30, 2017), http://www.businessinsider.com/iraqi-facebook-engineer-caught-in-the-immigration-ban-2017-1. 104 Lives Rewritten with the Stroke of a Pen, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/interactive/2017/01/29/nyregion/detainees-trump-travel-ban.html. 105 Charles Ornstein, Trump’s Executive Order Strands Brooklyn Doctor in Sudan, ProPublica (Jan. 29, 2017), https://www.propublica.org/article/trumps-executive-order-strands-brooklyndoctor-in-sudan.
32

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 45 of 47 PageID #: 1299
the pre-order regime. In addition, the motivation behind the EO and the Memo reflect exactly what the Supreme Court has expressed worry about with retroactive legislation—that it could be used “as a means of retribution against unpopular groups or individuals.” St. Cyr, 533 at 315-16. Here, the EO and the Memo clearly reflect the administration’s animus against Muslim immigrants.
CONCLUSION The Visa Revocation Memo called for the immediate revocation of visas for countless individuals who are integral members of our society, causing great consternation and uncertainty among those affected as well as their loved ones in the U.S. and abroad. The federal government’s categorical, classwide visa revocation is an unauthorized implementation of an equally problematic Executive Order. It is not permitted by any statutory authority and is an indiscriminate blow to thousands of people who have invested time and resources in navigating the complex process of obtaining U.S. visas. For these reasons, amici support the relief sought by Petitioners and Intervenor-Plaintiff.
Dated: February 16, 2017
Respectfully submitted, /s/ Alina Das Alina Das, Esq. Nancy Morawetz, Esq. Sarika Arya, Law Student Intern Sonya Chung, Law Student Intern Terry Ding, Law Student Intern Zoe Engberg, Law Student Intern Angela Galdamez, Law Student Intern Frances Hartmann, Law Student Intern
33

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 46 of 47 PageID #: 1300 Rachel Levenson, Law Student Intern Oluwadamilola Obaro, Law Student Intern Sarah Thompson, Law Student Intern Victoria Yee, Law Student Intern Rhiya Trivedi, Law Student Intern Immigrant Rights Clinic Washington Square Legal Services 245 Sullivan Street, 5th Fl. New York, NY 10012 (212) 998-6467 alina.das@nyu.edu
34

Case 1:17-cv-00480-CBA Document 126-1 Filed 02/16/17 Page 47 of 47 PageID #: 1301

CERTIFICATE OF SERVICE I hereby certify that on February 16, 2017, I electronically filed the foregoing with the Clerk of the court for United States District Court, Eastern District of New York using the CM/ECF system. I certify that I am a registered CM/ECF user and that all parties have registered CM/ECF users and that service will be accomplished by the CM/ECF system.

DATED: February 16, 2017

Respectfully submitted,
/s/ Alina Das Alina Das Immigrant Rights Clinic Washington Square Legal Services 245 Sullivan Street, 5th Fl. New York, NY 10012 (212) 998-6467 alina.das@nyu.edu

Case 1:17-cv-00480-CBA Document 126-2 Filed 02/16/17 Page 1 of 3 PageID #: 1302

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al., Petitioners,
and PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK,
Intervenor-Plaintiff, v.
DONALD TRUMP, President of the United States, et al., Respondents.

Civil Action No. 1:17-cv-00480
(Amon, J.)
NOTICE OF APPEARANCE

PLEASE TAKE NOTICE that Alina Das of Washington Square Legal Services, Inc., a member of this Court in good standing, respectfully enters her appearance as counsel for Amici Curiae: Arab American Association of New York, Brooklyn Defender Services, Immigrant Rights Clinic of Washington Square Legal Services, Legal Services NYC, the National Organization of Women – New York State, the New York Immigration Coalition, Muslim Bar Association of New York, and Tamizdat, in the above-entitled action and requests that all notices given or required to be given and all papers served in this case be given to and served upon the following:
Alina Das Immigrant Rights Clinic Washington Square Legal Services
1

Case 1:17-cv-00480-CBA Document 126-2 Filed 02/16/17 Page 2 of 3 PageID #: 1303 245 Sullivan Street, 5th Fl. New York, NY 10012 (212) 998-6467 alina.das@nyu.edu Respectfully submitted, /s/ Alina Das Alina Das Immigrant Rights Clinic Washington Square Legal Services 245 Sullivan Street, 5th Fl. New York, NY 10012 (212) 998-6467 alina.das@nyu.edu
2

Case 1:17-cv-00480-CBA Document 126-2 Filed 02/16/17 Page 3 of 3 PageID #: 1304
CERTIFICATE OF SERVICE I hereby certify that the foregoing was served electronically through the Court’s CM/ECF system on all registered participants this 16th day of February 2017.
/s/ Alina Das Alina Das Immigrant Rights Clinic Washington Square Legal Services 245 Sullivan Street, 5th Fl. New York, NY 10012 (212) 998-6467 alina.das@nyu.edu
3

 </s> Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 1 of 31 PageID #: 2395

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq Alshawi, et al. Petitioners, v.
Donald Trump, President of the United States, et al., Respondents.
17 Civ. 480 (CBA)

BRIEF OF LAW PROFESSORS OF CONSTITUTIONAL LAW, FEDERAL COURT JURISDICTION, IMMIGRATION, NATIONAL SECURITY, AND
CITIZENSHIP, AS AMICI CURIAE IN SUPPORT OF PETITIONERS

JONES DAY Meir Feder Matthew R. Cushing 250 Vesey Street New York, NY 10281 Telephone: (212) 326-3939 mfeder@jonesday.com

Of Counsel: Judith Resnik Burt Neuborne
Counsel for Amici Curiae Law Professors

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 2 of 31 PageID #: 2396
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ................................................................................. 1 ARGUMENT....................................................................................................................... 1
I. U.S. Law No Longer Reflects Doctrines of Unconstrained Authority And A Tolerance of Invidious Discrimination That Once Had Currency In Immigration Law................................................... 2
II. The Supreme Court Has Recognized Numerous Limits On Executive And Legislative Power Over Immigration................................ 8 A. Section 1182(f), like any other statutory provision, must be construed to avoid raising serious constitutional questions. ......... 8 B. Courts have consistently exercised constitutionally-based judicial review of the immigration process. ................................... 10 C. Invocation of national security or foreign affairs does not displace the essential role of the courts in enforcing constitutional limits........................................................................... 13
III. The Executive Order, At A Minimum, Raises Grave Questions Under The First Amendment And The Due Process Clause................. 14
IV. Deliberation Based On A Full Factual Record Is Essential................... 17 CONCLUSION ................................................................................................................ 20 ADDENDUM
- i -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 3 of 31 PageID #: 2397
TABLE OF AUTHORITIES Page
CASES Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ........................................................................................................ 19 Alden v. Maine,
527 U.S. 706 (1999) .......................................................................................................... 8 Aziz v. Trump,
17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017)....................................9, 12, 14 Betrand v. Sava,
684 F.2d 204 (2d Cir. 1982)........................................................................................... 12 Boumediene v. Bush,
553 U.S. 723 (2008) .................................................................................................. 11, 14 Chae Chan Ping v. United States,
130 U.S. 581 (1889) .......................................................................................................... 4 City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) ........................................................................................................ 20 Ex parte Endo,
323 U.S. 283 (1944) ........................................................................................................ 18 Fiallo v. Bell,
430 U.S. 787 (1977) ........................................................................................................ 11 Fisher v. Univ. of Tex. at Austin,
133 S. Ct. 2411 (2013) .................................................................................................... 19 Fong Yue Ting v. United States,
149 U.S. 698 (1893) .......................................................................................................... 4
- ii -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 4 of 31 PageID #: 2398
Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014)........................................................................................... 13
Gomez v. United States, 490 U.S. 858 (1989) .......................................................................................................... 8
Hamdan v . Rumsfeld, 548 U.S. 557 (2006) ........................................................................................................ 14
Hamdi v. Rumsefeld, 542 U.S. 507 (2004) ........................................................................................................ 14
INS v. Chadha, 462 U.S. 919 (1983) .................................................................................................. 11, 12
INS v. St Cyr, 533 U.S. 289 (2001) .................................................................................................... 9, 12
Kerry v. Din, 135 S. Ct. 2128 (2015) .................................................................................................... 12
Kleindienst v. Mandel, 408 U.S. 753 (1972) ........................................................................................................ 11
Knauff v. Shaughnessy, 338 U.S. 537 (1950) .......................................................................................................... 6
Korematsu v. United States, 323 U.S. 214 (1944) ........................................................................................................ 18
Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984) ............................................................................. 19
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) .................................................................................................... 6, 11
Landon v. Plasencia, 459 U.S. 21 (1982) .................................................................................................... 10, 11
- iii -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 5 of 31 PageID #: 2399
Louhghalam v. Trump, 17-cv-10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017)............................................ 14
Loving v. Virginia, 388 U.S. 1 (1967)............................................................................................................. 19
Munfa v. Geren, 553 U.S. 674 (2008) ........................................................................................................ 11
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) .................................................................................................... 20
Oyama v. California, 322 U.S. 633 (1948) .......................................................................................................... 7
Printz v. United States, 521 U.S. 898 (1997) ........................................................................................................ 13
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) ........................................................................................................ 19
Romer v. Evans, 517 U.S. 620 (1996) .................................................................................................. 16, 17
Shaughnessy v. Mezei, 345 U.S. 206 (1953) .......................................................................................................... 6
United States v. Ju Toy, 198 U.S. 254 (1905) .......................................................................................................... 4
Washington v. Trump, No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 9, 2017) ..................................... 13, 14
Webster v Doe, 486 U.S. 592 (1988) .......................................................................................................... 8
Zadvydas v. Davis, 533 U.S. 678 (2001) ..........................................................................................8, 9, 10, 11
- iv -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 6 of 31 PageID #: 2400
STATUTES 8 U.S.C. § 1182(a)(3) .............................................................................................................. 9 8 U.S.C. § 1182(f) ............................................................................................................. 8, 15 8 U.S.C. § 1187(a)(12)(A)..................................................................................................... 16 8 U.S.C. § 1324B(a) ................................................................................................................ 9 22 U.S.C. § 6411 ................................................................................................................... 10 Chinese Exclusion Act, Chapter 126, 22 Stat. 58 (1882)................................................... 3 Immigration Act of 1924, 43 Stat. 153 (1924) .................................................................... 3 Immigration and Nationality Act of 1952, Chapter 477, § 311, 66 Stat.
163 (1952) .......................................................................................................................... 5 Immigration and Nationality Act, Pub. L. No. 89-236, § 202, § 2(a), 79
Stat. 911-912 (1965)...................................................................................................... 5, 9 Immigration and Nationality Act, Pub. L. No. 94-571, sec. 101(a)(27),
§ 7(a), 90 Stat. 2703 (1976) .............................................................................................. 6 Page Law of 1875, Chapter 141, 18 Stat. 477 (1875) ......................................................... 3 Visa Waiver Program Improvement and Terrorist Travel Prevention Act
of 2015, Pub. L. No. 114-113, Div. O, Tit. II, 129 Stat. 2988 (2015) ...................... 16 OTHER AUTHORITIES 70 Cong. Rec. 3526 (1929) .................................................................................................... 4 70 Cong. Rec. 3620 (1929) .................................................................................................... 5 70 Cong. Rec. 4907 (1929) .................................................................................................... 4 T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of
Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365 (2002)................................................... 7
- v -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 7 of 31 PageID #: 2401
Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1 (1998) ........................................ 7
Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Tex. L. Rev. 1 (2002) ........................................................................................................ 7
Congressional Research Service, Executive Authority to Exclude Aliens: In Brief (Jan. 23, 2017) ......................................................................................................... 16
Nancy F. Cott, Marriage and Women’s Citizenship in the United States, 18301934, 103 Am. Hist. Rev. 1140 (Dec. 1998).................................................................. 4
Press Release, Dep’t of Homeland Sec., DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016) ................................................. 16
Jamal Greene, The Anticanon, 125 Harv. L. Rev. 380 (2011) ........................................... 18
Louis Henkin, THE AGE OF RIGHTS (1990)........................................................................ 7
Peter H. Irons, Unfinished Business: The Case for Supreme Court Repudiation of the Japanese Internment Cases (2013) ................................................................................. 19
Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255 (1984) ........................................................ 7
Douglas S. Massey, America’s Immigration Policy Fiasco: Learning from Past Mistakes, 142 Daedelus J. Am. Acad. Arts & Sci. 5 (Summer 2013)........................... 7
Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992)................................................................................................................................ 11
Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990) .......................................................................................................................... 7
Proclamation 4417—An American Promise, 41 Fed. Reg. 7,085 (Feb. 19, 1976) ................................................................................................................................. 19
- vi -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 8 of 31 PageID #: 2402
Proclamation 5517—Suspension of Cuban Immigration, 51 Fed. Reg. 30,470 (Aug. 22, 1986) ................................................................................................... 15
Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proc. Am. Philosophical Soc’y 117 (2016) ................................ 7
Peter Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1 (1984).................................................................................................................................. 6
Staff Report, Select Commission on Immigration and Refugee Policy (Apr. 20, 1981) .................................................................................................................. 3
Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezi, 143 U. Pa. L. Rev. 933 (1995) ....................... 6
- vii -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 9 of 31 PageID #: 2403
INTEREST OF AMICI CURIAE Amici curiae are scholars of federal constitutional law, federal court jurisdiction, and the law of immigration, national security and citizenship.1 In light of the claims advanced in this case about separation of powers, Executive authority, immigration, and national security, Amici believe this overview of the history and governing legal principles will be helpful.
ARGUMENT Amici write to address the contention that the political branches’ control over immigration is “plenary” and that the Executive has unreviewable authority to suspend the admission of “any class of aliens”—even if the selection of a particular class reflects invidious discrimination based on religion, race, or sex, or an arbitrary exercise of authority lacking a rational basis. While decisions by the Executive on matters related to immigration and national security are entitled to deference, the President has no authority to ignore the Constitution, and the courts retain their critical responsibility to “say what the law is.” Our constitutional history demonstrates the harms of excessive deference to Executive claims that national security requires it to target individuals of particular
1 Amici certify that (a) no party’s counsel authored any part of this brief, (b) no party or party’s counsel contributed money that was intended to fund the preparation or submission of this brief, and (c) no person other than Amici or their counsel contributed money that was intended to fund the preparation or submission of this brief.
- 1 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 10 of 31 PageID #: 2404
nationalities, races, and religions. The powerful exemplar is the evacuation and detention of more than 100,000 Japanese-American citizens and lawful residents during World War II, to which the courts acceded and for which both the Executive and Congress later apologized.
The Executive Order of January 27, 2017 raises a host of constitutional questions, implicating the rights of visa holders, and the relationships of visa holders to U.S. citizens, businesses, and educational institutions, as well as the rights and obligations of states. Moreover, the Order stands in sharp contrast to congressional enactments that during the second half of the twentieth century abolished overt race discrimination in immigration law.
The assertion of unfettered Executive authority to take such action is breathtaking in multiple ways: its disregard for the host of legally-cognizable interests it affects; the haste with which the Order appears to have been drafted and implemented; its indifference to constitutional obligations of even-handedness among religions and of due process; and its circumvention of procedures designed to ensure that Executive action will reflect the expertise of the relevant agencies. Most fundamentally, the claim of blanket and unquestionable power that the Executive has asserted is inconsistent with established law. I. U.S. Law No Longer Reflects Doctrines of Unconstrained Authority And A
Tolerance of Invidious Discrimination That Once Had Currency In Immigration Law.
There was a time when American immigration statutes incorporated, and the
- 2 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 11 of 31 PageID #: 2405
courts declined to invalidate, openly discriminatory immigration provisions. The notion that the authority of the political branches over immigration is unconstrained—“plenary”—derives from cases dating back to such periods. But the lesson to be drawn from this unhappy history is precisely the opposite of the government’s position. The Supreme Court has made clear that immigration rules and statutes are subject to constitutional constraints. Moreover, the shift in the Supreme Court’s approach is paralleled by shifts in Congress, which since the 1950s has moved away from policies nested in invidious discriminations.
A list of those once excluded – based on national stereotypes, gender, and race - makes the point. Congress’s exclusion of Chinese immigrants began in the late nineteenth century, first with the Page Law of 1875, ch. 141, 18 Stat. 477 (1875), and then with the Chinese Exclusion Act of 1882, which suspended immigration of Chinese laborers for a period of ten years and also declared that “no State Court or Court of the United States shall admit Chinese to Citizenship,” Chinese Exclusion Act, ch. 126, §§ 1 & 14, 22 Stat. 58, 59-61 (1882). Exclusionary laws expanded over several decades, culminating in the Immigration Act of 1924, which both re-codified the race-based exclusionary laws and created a national-origins quota system that would remain in place for decades thereafter. Immigration Act of 1924, 43 Stat. 153, 168 (1924). See Staff Report, Select Commission on Immigration and Refugee Policy 194-197 (Apr. 20, 1981). Moreover, American women who married noncitizen men from certain countries (including those marrying men from India and China) lost their
- 3 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 12 of 31 PageID #: 2406
United States citizenship. See Nancy F. Cott, Marriage and Women’s Citizenship in the United States, 1830-1934, 103 Am. Hist. Rev. 1140 (Dec. 1998).
During many of these decades, the courts acceded to such classifications and exclusions. For example, Chae Chan Ping v. United States, 130 U.S. 581 (1889), upheld the unilateral exclusion of a Chinese legal permanent resident who had been given permission to reenter before he left the country. Fong Yue Ting v. United States, 149 U.S. 698 (1893), declined to review the expulsion of a Chinese national who had not produced a “white” witness to testify to the lawfulness of his presence. And United States v. Ju Toy, 198 U.S. 254 (1905), denied habeas corpus review of immigration officials’ determination to exclude an individual notwithstanding his claim of United States citizenship.
The 1924 Immigration Act not only excluded Asians, but set strict nationalorigin quotas aimed (as one member of Congress commented in 1929) “principally at two peoples, the Italians and the Jews.” 70 Cong. Rec. 3526 (1929) (statement of Rep. John J. O’Connor). By the late 1920s, the focus had shifted to other “others.” AntiMexican sentiments permeated discussion in the House of Representatives, as proponents of criminalizing entry-after-deportation argued that migrants brought with them poverty, disease, alcohol, as well as competition in labor markets and challenges to America’s identity. One Representative claimed that “hordes of undesirable aliens . . . [were] undermining [the] health, integrity, and moral fiber of the forthcoming generations.” 70 Cong. Rec. 4907 (1929) (statement of Rep. Jed Johnson). Another
- 4 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 13 of 31 PageID #: 2407
argued the need to stop foreigners from “poisoning the American citizen.” 70 Cong. Rec. 3620 (1929) (statement of Rep. William Thomas Fitzgerald).
But during the middle of the twentieth century, both Congress and the Court moved away from these attitudes, mired in racial and religious stereotypes that echoed the licensing, before Brown v. Board of Education, of domestic racial discrimination. In terms of legislation, Congress gradually abolished overt race discrimination in the nationality laws, first through providing in the Immigration and Nationality Act of 1952 that the “right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex.” Immigration and Nationality Act of 1952, ch. 477, § 311, 66 Stat. 163, 239 (1952).
What is known as the 1965 Hart-Celler Act (sponsored by Congressman Emanuel Celler, for whom one of Brooklyn’s federal courthouses was named) provides the next landmark. Congress responded to the history of racialized national exclusivity by abandoning the national-origins quota systems. The 1965 Act replaced the prohibitions on immigration from Asia and Africa and the severe limits on migrants from certain European countries with uniform quotas of 20,000 per country in Europe, Africa, Asia, and the Pacific. Immigration and Nationality Act, Pub. L. No. 89-236, sec. 202, § 2(a), 79 Stat. 911-912 (1965). Section 202 of the Act specifically stated that with regard to immigration admissions, “[n]o person shall receive any preference or priority or be discriminated against . . . because of his race, sex, nationality, place of birth, or place of residence.” Id. at 911. Although the 1965
- 5 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 14 of 31 PageID #: 2408
Act left certain countries in the Western Hemisphere without quotas, in 1976 the Act was amended to subject each country in the Americas to a numerical cap of 20,000. Immigration and Nationality Act, Pub. L. No. 94-571, sec. 101(a)(27), § 7(a), 90 Stat. 2703, 2706 (1976).
The Supreme Court in turn moved away from its “hands off” approach. To be sure, the 1950s saw a mixture of approaches. On the one hand, Kwong Hai Chew v. Colding, 344 U.S. 590 (1953), rejected the contention that a lawful permanent resident could be excluded from the United States without being given notice of the charges justifying his exclusion and an opportunity to be heard to object. On the other hand, Knauff v. Shaughnessy, 338 U.S. 537 (1950), and Shaughnessy v. Mezei, 345 U.S. 206 (1953), held respectively that an individual seeking permanent residency and a permanent resident seeking re-entry after a nearly two year absence could be excluded without fair process.
Subsequent to those Cold War era decisions, the Supreme Court—while continuing to recognize the need for appropriate deference—retreated from the Knauff/Mezei licensing of unfettered government power in the immigration sphere. See generally Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons From the Lives of Ellen Knauff and Ignatz Mezi, 143 U. Pa. L. Rev. 933, 938 (1995). A wealth of scholarship has chronicled the shift in the doctrine as due process and equal protection norms came to be reflected, albeit with variations, in immigration law. See, e.g., Peter Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 4 (1984);
- 6 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 15 of 31 PageID #: 2409
Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990); T. Alexander Aleinikoff, Detaining Plenary Power: The Meaning and Impact of Zadvydas v. Davis, 16 Geo. Immigr. L.J. 365 (2002); Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1, 54-58 (1998); Judith Resnik, “Within its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proc. Am. Philosophical Soc’y 117 (2016); Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255 (1984).
Furthermore, the vision of law that supported judicial approval of such discriminatory legislation and produced pejoratives such as “the Yellow Peril,” (Oyama v. California, 322 U.S. 633, 668–69 (1948) (Murphy, J., concurring)); and the “Latino Threat” (see Douglas S. Massey, America’s Immigration Policy Fiasco: Learning from Past Mistakes, 142 Daedelus J. Am. Acad. Arts & Sci. 5, 7-8, 11 (Summer 2013)), came to be understood, as Professor Louis Henkin put it, as “an embarrassment”—”relics of a bygone, unproud era.” Louis Henkin, THE AGE OF RIGHTS 137 (1990). Decisions like the Chinese Exclusion Cases, Mezei, and Knauff exemplify outdated attitudes toward national sovereignty premised on racial purity and religious dogma, which were swept away in the wake of Brown by the Supreme Court’s recognition in diverse settings of the centrality of the constitutional guaranties of due process, equal protection, and religious liberty. See generally Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81
- 7 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 16 of 31 PageID #: 2410
Tex. L. Rev. 1 (2002). II. The Supreme Court Has Recognized Numerous Limits On Executive And
Legislative Power Over Immigration. A. Section 1182(f), like any other statutory provision, must be construed to
avoid raising serious constitutional questions. Immigration statutes, like other federal statutes, must be construed to avoid serious constitutional questions. As is obvious here, such questions exist because the President has claimed that 8 U.S.C. § 1182(f) vests him with unbounded authority to exclude “any class of aliens” — even if those aliens are lawful permanent residents, and even if his selection of the “class” were to be affected by invidious racial, gender, religious, or other considerations. It is a “cardinal principle” of statutory interpretation that when an Act of Congress raises “a serious doubt” as to its constitutionality, the Supreme Court “will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001). The Supreme Court has repeatedly emphasized that it will “avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.” Gomez v. United States, 490 U.S. 858, 864 (1989). Moreover, statutes in tension with basic constitutional values are construed in accord with strong “clear statement” presumptions, requiring that in the absence of explicit language, a statute will not be interpreted to trench on those fundamental values. See, e.g., Alden v. Maine, 527 U.S. 706 (1999); Webster v Doe, 486 U.S. 592, 603-05 (1988).
- 8 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 17 of 31 PageID #: 2411
The canon of constitutional avoidance has repeatedly been applied to limit provisions of immigration statutes that on their face appeared to confer unconstrained authority. In INS v. St Cyr, 533 U.S. 289, 299-300 (2001), the Court avoided interpreting a statute to have barred habeas corpus, which would have required addressing the Suspension Clause. In Zadvydas, where the text of the immigration statute at issue contained no apparent time limit on the detention of certain aliens, the Court read the statute to include an implicit reasonableness limitation, and emphasized that “[w]e have read significant limitations into other immigration statutes in order to avoid their constitutional invalidation.” Zadvydas, 533 U.S. at 689.
Here, the Order represents a major shift in immigration policy, well beyond any prior use of § 1182(f), inconsistent with statutory bans on discrimination enacted after § 1182(f), see Immigration and Nationality Act, Pub. L. No. 89-236, sec. 202, § 2(a), 79 Stat. 911(1965) (“[N]o person shall . . . 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. § 1324B(a) (making it illegal for employers to discriminate against aliens based upon their national origin or citizenship), and in tension with the specific statutory criteria for excluding persons believed to be involved in terrorist activity, see 8 U.S.C. § 1182(a)(3). The Order is also tainted by disturbing evidence of an intention to disfavor a particular religious group. See Aziz v. Trump, 17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017). Given the seriousness of the constitutional issues raised by the Executive Order, the canon of constitutional
- 9 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 18 of 31 PageID #: 2412
avoidance compels reading § 1182(f) as complying with the anti-discrimination norms enacted by Congress and embedded in the Constitution.
The Executive Order is also in tension with this Nation’s leadership role in protecting religious freedom, in both domestic and international settings. In 1998, Congress mandated establishment of an Office of International Religious Freedom in the State Department, which prepares Annual Reports on International Religious Freedom. See 22 U.S.C. § 6411. This congressional directive is inconsistent with the notion that Congress intended to authorize the President to discriminate on the basis of religion. Thus, § 1182(f) can and should be construed to avoid the many serious constitutional questions raised by the Executive Order.
B. Courts have consistently exercised constitutionally-based judicial review of the immigration process.
In addition to construing statutes to avoid constitutional difficulties, the federal courts have repeatedly reviewed the political branches’ regulation of immigration for constitutional soundness, and the Supreme Court has expressly said that the political branches’ power over immigration “is subject to important constitutional limitations.” Zadvydas, 533 U.S. at 695. The examples run from exclusion to detention and deportation, and the individuals and institutions affected range from citizens and their families, to universities, businesses, and states. The Supreme Court has insisted on constitutional limits on the federal government’s power to prevent resident noncitizens from returning to the country after traveling abroad, see Landon v. Plasencia, 459
- 10 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 19 of 31 PageID #: 2413
U.S. 21 (1982); Colding, 344 U.S. 590; to detain individuals pending their removal from the country, see Zadvydas, 533 U.S. 678; and to deny judicial review to non-citizens held in Guantánamo Bay and held outside the United States as “enemy combatants,” see Boumediene v. Bush, 553 U.S. 723 (2008); Munfa v. Geren, 553 U.S. 674 (2008).
Further, even in cases relating to the federal government’s discretionary issuance of visas, courts no longer approach immigration decisions as intrinsically free from scrutiny. In Kleindienst v. Mandel, 408 U.S. 753 (1972), addressing the refusal of a visa to an individual invited to a conference on a college campus, the Court declined to adopt the government’s argument that Congress had delegated such matters “to the Executive in its sole and unfettered discretion, and any reason or no reason may be given.” Id. at 769. Rather, the Court upheld the Executive’s decision on the ground that it was justified by a “facially legitimate and bona fide reason.” Id. at 770. Fiallo v. Bell, 430 U.S. 787 (1977), rejected the argument that a policy “regulating the admission of aliens” was not “subject to judicial review,” and instead recognized a “limited judicial responsibility under the Constitution even with respect to the power of Congress to regulate the admission and exclusion of aliens.” Id. at 793, n.5 (emphasis added).
Since Mandel and Fiallo were decided, the Supreme Court has consistently refused to insulate immigration legislation and Executive action from constitutional scrutiny. See Landon, 459 U.S. at 32-35, 37; INS v. Chadha, 462 U.S. 919, 940-41 (1983) (invalidating legislative veto over decisions by the Executive to grant relief from deportation). See generally Hiroshi Motomura, The Curious Evolution of Immigration Law:
- 11 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 20 of 31 PageID #: 2414
Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992). The core concern is to protect against “arbitrary” decisions by any single branch of government. See Chadha, 462 U.S. at 959. Cases in which immigration statutes were construed to avoid constitutional difficulty, such as Zadvydas and St. Cyr, 533 U.S. at 304, are also pertinent here.
More recently, in Kerry v. Din, the Court considered the denial of a visa to a non-citizen spouse of a U.S. citizen. 135 S. Ct. 2128, 2139 (2015). The concurring opinion from Justice Kennedy, joined by Justice Alito, which constitutes the majority holding, agreed with the denial of a visa, but based on their view that the reasons provided met the “facially legitimate and bona fide” standard of Mandel. Id. at 2140. The decision reflects a commitment to due process and judicial review in the visa issuance context. Further, Justice Kennedy’s opinion noted that under the Mandel standard, an “affirmative showing of bad faith” would require a court to “look behind” the stated reasons for a decision. Id. at 2141. The Second Circuit has similarly made clear that “discretion may not be exercised to discriminate invidiously against a particular race or group or to depart without rational explanation from established policies. . . . Such exercise of the power would not be ‘legitimate and bona fide’ within the meaning of Kleindienst v. Mandel.” Betrand v. Sava, 684 F.2d 204, 212-13 (2d Cir. 1982). These are the concerns raised here, given that other courts have already found such indications of bad faith in the multiple statements suggesting antiMuslim motivations for the Order. See Aziz, 2017 WL 580855, at *3-5, 8-9;
- 12 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 21 of 31 PageID #: 2415
Washington v. Trump, No. 17-35105, 2017 WL 526497, at *10 (9th Cir. Feb. 9, 2017) (per curiam) (reh’g en banc pending).
Further constraints on the political branches’ plenary powers have come from the structure of “Our Federalism,” illustrated by decisions addressing the applying the non-commandeering principle of Printz v. United States, 521 U.S. 898 (1997), in the immigration context. E.g., Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) (“[T]he federal government cannot command the government agencies of the states to imprison persons of interest to federal officials.”).
In sum, notwithstanding the discretion properly recognized in the political branches with respect to many aspects of immigration law, the courts remain responsible to ensure that those powers are exercised within the bounds set by the Constitution.
C. Invocation of national security or foreign affairs does not displace the essential role of the courts in enforcing constitutional limits.
Deployment of the term “national security” likewise cannot stop appropriate judicial inquiry into the legality of, or the basis for, government actions. Indeed, in the period since the events of September 11, 2001, courts have repeatedly addressed the merits of claims of individuals and entities subjected to government orders flowing from 9/11—even when dealing with measures specifically directed at individuals believed to have engaged in terrorism. Executive claims based on national security are properly entitled to significant deference, but that deference is not a
- 13 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 22 of 31 PageID #: 2416
“blank check.” Hamdi v. Rumsefeld, 542 U.S. 507, 536 (2004). Across a range of areas, the Government regularly argued that the judiciary had
no role, as the political branches were responding to “national security” concerns and the Congress had authorized military engagements. The judiciary nonetheless has repeatedly discharged its constitutional obligation. See id.; Hamdan v . Rumsfeld, 548 U.S. 557, 576-78 (2006); Boumediene, 553 U.S. at 771. III. The Executive Order, At A Minimum, Raises Grave Questions Under The
First Amendment And The Due Process Clause. As of this writing, federal district courts in Washington, Massachusetts, New
York, and Virginia have examined the Executive Order. All but the decision in Louhghalam v. Trump, 17-cv-10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017), have found the Order constitutionally suspect. Indeed, in a per curiam decision, a unanimous panel of the Ninth Circuit denied the Government’s request to stay a district court’s TRO enjoining enforcement of the Executive Order, because the panel concluded that (1) there was a likelihood of success on the merits for upholding a preliminary injunction on due process grounds, and (2) adequate evidence of unconstitutional religious animus existed to warrant a full judicial exploration. Washington, 2017 WL 526497, at *7-10. A Virginia District Judge found that evidence of unconstitutional religious animus merited issuance of a preliminary injunction against the ban’s enforcement in Virginia against Virginia residents, students, or employees of Virginia’s schools. Aziz, 2017 WL 580855, at *11.
- 14 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 23 of 31 PageID #: 2417
Both the procedural due process and religious liberty issues are before this Court. This case is focused on whether aliens who had returned to the United States with valid travel documents and those who have lawful permanent residence have a cognizable liberty interest under the Due Process Clause, as well as whether those in relationship to the Petitioners - ranging from universities and employers to citizen family members - have constitutional and statutory entitlements to individualized consideration through specified procedures prior to the voiding of the visas.
Further, per the Court’s grant of intervention, the New York Attorney General has asserted the rights of New York State, its businesses, universities, and hospitals, the health of its economy and citizens, and the civil rights of its residents. Through its pleadings, New York has raised claims that are not derivative of the rights of aliens but reflect independent harms in New York and in its interactions across the country.
To be sure, every President over the last thirty years has issued at least one Executive Order pursuant to 8 U.S.C. § 1182(f), many of them directed at particular nations. Each, however, was narrowly tailored to focus on a particular concern that did not involve invidious stereotyping. In the most sweeping example, President Reagan reacted to the decision of the Cuban government to suspend its then-existing immigration agreement with the United States by using § 1182(f) to temporarily exclude all Cubans, other than those eligible for family reunification visas. Proclamation 5517—Suspension of Cuban Immigration, 51 Fed. Reg. 30,470 (Aug. 22, 1986). Other legislation and orders have imposed extra vetting, most notably
- 15 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 24 of 31 PageID #: 2418
determinations that travelers who had been present in Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen on or after March 1, 2011, were, unlike some others, required to obtain visas to travel to the United States. See 8 U.S.C. § 1187(a)(12)(A), Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, Pub. L. No. 114113, Div. O, Tit. II, 129 Stat. 2988 (2015) (extra vetting for individuals who have traveled to Iran, Iraq, Sudan, or Syria on or after March 1, 2011); Press Release, Dep’t of Homeland Sec., DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016), available at https://www.dhs.gov/news/2016/02/18/dhs-announcesfurther-travel-restrictions-visa-waiver-program (adding by executive order extra vetting for individuals who have traveled to Libya, Somalia, or Yemen).
Those provisions did not impose blanket exclusions but instead required that certain individuals obtain visas prior to their travel, and none of these orders was been tainted by statements proclaiming an intention to exclude members of a particular religion from the United States. See Congressional Research Service, Executive Authority to Exclude Aliens: In Brief, at 6-10 (Jan. 23, 2017) (describing all Executive Orders issued pursuant to § 1182(f) and observing that “in no case to date, though, has the Executive purported to take certain types of action, such as . . . explicitly distinguishing between categories of aliens based on their religion.”).
While all lawmaking relies on categories as a “practical necessity,” not all categories are equal. Romer v. Evans, 517 U.S. 620, 631 (1996). When the category is race, religion, gender, or national origin, alarm bells go off. The Executive Order has
- 16 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 25 of 31 PageID #: 2419
echoes of the amendment invalidated in Romer, for it too can be described as: “imposing a broad and undifferentiated disability” – here on nationals or visitors to seven countries rather than, as in Romer, “a single named” group; “its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” 517 U.S. at 632. IV. Deliberation Based On A Full Factual Record Is Essential
Amici have set forth several constitutional doctrines that bear on the Executive Order and which require careful and deliberate consideration—rather than a rush to judgment. The order in Washington v. Trump has helped to limit the profound disruption of the administration of justice, of businesses and universities, and of families. The preliminary injunction in the Eastern District of Virginia has responded to parallel problems in that state. These orders, like the prior order in this case, permit an opportunity for careful judicial consideration of the factual and legal issues posed by the Executive Order, restoring a status quo that the Government has not shown to pose any imminent risk of harm, or, indeed, to have ever resulted in any of the harms said to justify the Executive Order.
In carrying out such careful judicial consideration, one final facet of constitutional history requires discussion, for this is not the first time in our history that the Government has pressed courts to defer to claims of national security and of threats identified with people from particular nationalities. The results of deference
- 17 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 26 of 31 PageID #: 2420
without factual support have often been tragic, as exemplified by the hasty approval of Japanese internment.2 Korematsu v. United States, 323 U.S. 214 (1944), has rightly become part of an “anticanon” – deployed as examples of what U.S. law no longer accepts as constitutional. See Jamal Greene, The Anticanon, 125 Harv. L. Rev. 380, 396, 456-60 (2011).
A few of the details of Korematsu bear repeating, as there – like here – national origin stood in as a proxy for risk. In the 1940s, the Court deferred to the Government’s assertion that national security required the detention of 117,000 people based on their race alone because time purportedly did not permit individualized determinations. 323 U.S. at 218-219. This claim turned out to be false. A bi-partisan Congressional Commission later concluded that no evidence supported the claim of military necessity for internment, and that it was instead the result of “race prejudice, war hysteria and a failure of political leadership. See Report of the Commission on Wartime Relocation and Internment of Civilians, Personal Justice Denied (Washington, D.C., 1982) at 18. Moreover, the government’s representation that categorical detention was needed because it had insufficient time for
2 Even at its lowest ebb, the Supreme Court recognized in the companion case to Korematsu, Ex parte Endo, that individualized hearings for each detainee were required. See 323 U.S. 283, 299-300, 30304 (1944). Faced with the requirement of individualized hearings, the United States released the Japanese internees four months after the decision in Ex parte Endo. Thus, unless and until the United States provides a mechanism for such individualized consideration in connection with the cancellation of valid entry documents, this Court should enjoin the application of the blanket ban to holders of otherwise valid entry documents.
- 18 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 27 of 31 PageID #: 2421
individualized review was untruthful. See Peter H. Irons, Unfinished Business: The Case for Supreme Court Repudiation of the Japanese Internment Cases 4, 7-9, 18-19 (2013).
In 1976, the order was formally terminated by President Gerald Ford, who called the order a “setback to fundamental American principles.” President Ford urged American’s “to resolve that this kind of action shall never again be repeated.” Proclamation 4417—An American Promise, 41 Fed. Reg. 7,085 (Feb. 19, 1976).
The next chapter in Korematsu comes from the federal district court grant of a writ of coram nobis to Mr. Korematsu. As that court wrote, “[a]s historical precedent,” the decision is a “constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees.” Moreover, “the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.” Korematsu v. United States, 584 F. Supp. 1406, 1420 (N.D. Cal. 1984).
One more aspect of Korematsu bears elaboration. The Court has come to invoke the decision for the proposition that strict scrutiny applies to racial classifications under equal protection doctrine. “All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 288, (1978) (quoting Korematsu, 323 U.S. at 216). See also Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2422, (2013); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214 (1995); Loving v.
- 19 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 28 of 31 PageID #: 2422

Virginia, 388 U.S. 1, 11, (1967). As the Court explained in City of Richmond v. J.A. Croson Co., “[t]he history of
racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis.” 488 U.S. 469, 501 (1989) (citing Korematsu, 323 U.S. at 235-40). By linking national origin discrimination with racial discrimination, the Court has made plain how one noxious basis for classification leads to another. Indeed, as Justice Kennedy eloquently put it: the “identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015).
Conclusion The Executive Order of January 27, 2017 should not be allowed to stand without a thorough review that entails fact-based analyses of its legality as a matter of statutory and constitutional law.

Dated: February 16, 2017
Of counsel: Judith Resnik Burt Neuborne

Respectfully submitted,
JONES DAY
/s/ Meir Feder Meir Feder Matthew R. Cushing 250 Vesey Street New York, NY 10281 Telephone: (212) 326-3939
Counsel for Amici Curiae Law Professors

- 20 -

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 29 of 31 PageID #: 2423
ADDENDUM List of Amici law professors3:
Kerry Abrams, Professor of Law, University of Virginia School of Law
Bruce Ackerman, Sterling Professor of Law and Political Science, Yale Law School
Janet Cooper Alexander, Frederick I. Richman Professor of Law, Emerita, Stanford Law School
Erwin Chemerinsky, Dean of the School of Law, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law
Kristin Collins, Professor of Law and Associate Dean for Intellectual Life, Boston University
Laura K. Donahue, Professor of Law, Director of the Center on National Security and the Law, and Director of the Center on Privacy and Technology, Georgetown University Law Center
Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia Law School
Catherine Y. Kim, Associate Professor of Law, University of North Carolina School of Law
Edward A. Purcell, Jr., Joseph Solomon Distinguished Professor of Law, New York Law School
Hiroshi Motomura, Susan Westerberg Prager Professor of Law, UCLA School of Law
Burt Neuborne, Norman Dorsen Professor of Civil Liberties and Founding Legal Director of the Brennan Center for Justice, New York University School of Law
Judith Resnik, Arthur Liman Professor of Law, Yale Law School
3 Institutional affiliations are provided for identification purposes only; this brief does not represent the institutional views of any entity with which Amici are affiliated.

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 30 of 31 PageID #: 2424
Stephen I. Vladeck, Professor of Law, University of Texas School of Law Jonathan T. Weinberg, Professor of Law, Wayne Law

Case 1:17-cv-00480-CBA Document 127 Filed 02/16/17 Page 31 of 31 PageID #: 2425

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Eastern District of New York by using the CM/ECF system on February 16, 2017. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

Dated: February 16, 2017

/s/ Meir Feder
Meir Feder Jones Day 250 Vesey Street New York, NY 10281 Telephone: (212) 326-3939 mfeder@jonesday.com

Counsel for Amici Curiae Law Professors

 </s> Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 1 of 22 PageID #: 1358

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al.,
Petitioners,
and
PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK,
Intervenor-Plaintiff,

Civil Action No. 1:17-cv-00480
(Amon, J.)

v. DONALD TRUMP, President of the United States, et al.,
Respondents.

BRIEF OF THE FRED T. KOREMATSU CENTER FOR LAW AND EQUALITY, JAY HIRABAYASHI, HOLLY YASUI, KAREN KOREMATSU,
CIVIL RIGHTS ORGANIZATIONS, AND NATIONAL AND NEW YORK BAR ASSOCIATIONS OF COLOR, AS AMICI CURIAE IN SUPPORT OF THE RELIEF
SOUGHT BY PETITIONERS AND INTERVENOR-PLAINTIFF

Jessica M. Weisel (pro hac pending) 1999 Avenue of the Stars, Suite 600 Los Angeles, CA 90067 Telephone: (310) 229-1000 Facsimile: (310) 229-1001 jweisel@akingump.com

AKIN GUMP STRAUSS HAUER & FELD LLP
Robert A. Johnson Elizabeth C. Rosen Sofia Syed Daniella Roseman One Bryant Park New York, NY 10036 Telephone: (212) 872-1000 Facsimile: (212) 872-1002 rajohnson@akingump.com
Attorneys for Amici Curiae

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 2 of 22 PageID #: 1359

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .................................................................................................. 1
INTRODUCTION AND SUMMARY OF ARGUMENT ........................................................... 5
ARGUMENT ................................................................................................................................ 7
I. THE “PLENARY POWER” DOCTRINE ORIGINATED FROM RACIST NOTIONS THAT COURTS NOW REJECT........................................ 7
II. KOREMATSU STANDS AS A STARK REMINDER OF THE NEED FOR VIGILANT JUDICIAL REVIEW OF GOVERNMENTAL ACTION TARGETING DISFAVORED GROUPS IN THE NAME OF NATIONAL SECURITY. .................................................................................. 13
CONCLUSION........................................................................................................................... 17

i

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 3 of 22 PageID #: 1360
TABLE OF AUTHORITIES
Page(s)
Cases
Aziz v. Trump, No. 17-cv-00116-LMB-TCB (E.D.Va. Feb. 13, 2017) (D.E. #111) .........................................6
Chae Chan Ping v. United States, 130 U.S. 581 (1889).......................................................................................................6, 7, 8, 9
Fong Yue Ting v. United States, 149 U.S. 698 (1893).........................................................................................................8, 9, 10
Harisiades v. Shaughnessy, 342 U.S. 580 (1952).............................................................................................................9, 10
Hirabayashi v. United States, 320 U.S. 81 (1943)...............................................................................................................1, 14
Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987) ...................................................................................................15
Kerry v. Din, 135 S. Ct. 2128 (2015) .......................................................................................................11, 12
Kleindienst v. Mandel, 408 U.S. 753 (1972)...........................................................................................................11, 12
Korematsu v. United States, 323 U.S. 214 (1944)...................................................................................................1, 7, 13, 14
Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984) ....................................................................................7, 15
Landon v. Plasencia, 459 U.S. 21 (1982).............................................................................................................10, 11
Plessy v. Ferguson, 163 U.S. 537 (1896).................................................................................................................16
Reno v. Flores, 507 U.S. 292 (1993).................................................................................................................10
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953).................................................................................................................10
ii

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 4 of 22 PageID #: 1361
State of Wash. v. Trump, No. 17-35105 (9th Cir. Feb. 9, 2017) .......................................................................6, 7, 11, 12
Yasui v. United States, 320 U.S. 115 (1943).............................................................................................................1, 14
Yasui v. United States, 772 F.2d 1496 (9th Cir. 1985) ................................................................................................15
Zadvydas v. Davis, 533 U.S. 678 (2001).................................................................................................................11
Other Authorities Executive Order No. 13,769, “Protecting the Nation from Foreign Terrorist Entry
into the United States,” 82 Fed. Reg. 8977 (Jan. 27, 2017).......................................................5 Executive Order No. 9066, “Authorizing the Secretary of War to Prescribe
Military Areas,” 7 Fed. Reg. 1407 (Feb. 19, 1942) .................................................................13 Greene, Jamal, The Anticanon, 125 HARV. L. REV. 379 (2011) ....................................................16 Katyal, Neal K., The Solicitor General and Confession of Error, 81 FORDHAM L.
REV. 3027 (2012-2013) ............................................................................................................14 Paulsen, Michael Stokes, Symposium: The Changing Laws of War: Do We Need a
New Legal Regime After September 11?: The Constitution of Necessity, 79 NOTRE DAME L. REV. 1257 (2004) ....................................................................................15, 16 Saito, Natsu Taylor, The Enduring Effect of the Chinese Exclusion Cases: The Plenary Power Justification for On-Going Abuses of Human Rights, 10 ASIAN AM. L.J. 13 (2003)......................................................................................................................8 United States Department of Justice, Confession of Error: The Solicitor General’s Mistakes During the Japanese-American Internment Cases (May 20, 2011), https://www.justice.gov/opa/blog/confession-error-solicitor-generalsmistakes-during-japanese-american-internment-cases ............................................................14
iii

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 5 of 22 PageID #: 1362
INTEREST OF AMICI CURIAE The Fred T. Korematsu Center for Law and Equality (“Korematsu Center”) is a non-profit organization based at the Seattle University School of Law. The Korematsu Center works to advance justice through research, advocacy, and education. Inspired by the legacy of Fred Korematsu, who defied military orders during World War II that ultimately led to the unlawful incarceration of 110,000 Japanese Americans, the Korematsu Center works to advance social justice for all. The Korematsu Center does not, in this brief or otherwise, represent the official views of Seattle University. The Korematsu Center has a special interest in addressing government action targeted at classes of persons based on race, nationality, or religion. Drawing on its experience and expertise, the Korematsu Center seeks to ensure that courts understand the historical—and, at times, profoundly unjust—underpinnings of arguments asserted to support the exercise of such unchecked executive power.1 Jay Hirabayashi, Holly Yasui, and Karen Korematsu are children of three Japanese Americans who challenged the government’s racial curfew and detention programs in the United States Supreme Court during World War II: Gordon Hirabayashi (see Hirabayashi v. United States, 320 U.S. 81 (1943)); Minoru Yasui (see Yasui v. United States, 320 U.S. 115 (1943)); and Fred Korematsu (see Korematsu v. United States, 323 U.S. 214 (1944)). Their interest is in reminding this Court of the legacy those judicial decisions had on their generation and will have on future generations, and the impact of judicial decisions that fail to protect men, women, and children belonging to disfavored groups in the name of national security. Guilt, loyalty, and threat are individual attributes. When these attributes are imputed to racial, religious, or national
1 Amici curiae file this brief pursuant to the Court’s February 13, 2017 docket order granting their motion for leave to file.
1

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 6 of 22 PageID #: 1363
origin groups, courts play a crucial role in ensuring that there is a legitimate basis. Disaster has occurred when courts have refused to play this role.
During World War II, Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu stood largely alone. Here, their children are gratified to have such a broad coalition standing with them, and together, standing with those communities and individuals most directly harmed by the Executive Order:
Asian Americans Advancing Justice (“Advancing Justice”) is the national affiliation of five nonprofit, nonpartisan civil rights organizations: Asian Americans Advancing Justice – AAJC, Asian Americans Advancing Justice – Asian Law Caucus, Asian Americans Advancing Justice – Atlanta, Asian Americans Advancing Justice – Chicago, and Asian Americans Advancing Justice – Los Angeles. Members of Advancing Justice routinely file amicus curiae briefs in cases in this Court and other courts. Through direct services, impact litigation, policy advocacy, leadership development, and capacity building, the Advancing Justice affiliates advocate for marginalized members of the Asian American, Native Hawaiian, Pacific Islander and other underserved communities, including immigrant members of those communities.
The Asian American Bar Association of New York (“AABANY”) was formed in 1989 as a not-for-profit corporation to represent the interests of New York Asian-American attorneys, judges, law professors, legal professionals, legal assistants, paralegals, and law students. The mission of AABANY is to improve the study and practice of law, and the fair administration of justice for all by ensuring the meaningful participation of Asian Americans in the legal profession.
The Asian American Legal Defense and Education Fund (“AALDEF”), founded in 1974, is a national organization that protects and promotes the civil rights of Asian Americans. By
2

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 7 of 22 PageID #: 1364
combining litigation, advocacy, education, and organizing, AALDEF works with Asian American communities across the country to secure human rights for all. The President’s Executive Order No. 13,769, which would curtail the rights of immigrants to be free from discrimination because of their race, national origin, or religion, raises issues central to AALDEF’s mission. In 1982, AALDEF testified before the U.S. Commission on Wartime Relocation and Internment of Civilians, in support of reparations for Japanese Americans forcibly relocated and imprisoned in camps during World War II. After 9/11, we represented more than 800 individuals from Muslim-majority countries who were called in to report to immigration authorities under the Special Registration (“NSEERS”) program. AALDEF is currently providing community education and legal counseling to Asian Americans affected by the challenged Executive Order.
The membership of amicus curiae the Hispanic National Bar Association (“HNBA”) is comprised of thousands of Latino lawyers, law professors, law students, legal professionals, state and federal judges, legislators, and bar affiliates across the country. The HNBA supports Hispanic legal professionals and is committed to advocacy on issues of importance to the 53 million people of Hispanic heritage living in the United States. The HNBA regularly participates as amicus curiae in cases concerning immigration and the protection of refugees.
LatinoJustice PRLDEF, Inc. (“LatinoJustice”) is a national not-for-profit civil rights legal defense fund that has defended the constitutional rights and equal protection of all Latinos under the law. LatinoJustice’s continuing mission is to promote the civic participation of the greater pan-Latino community in the United States, to cultivate Latino community leaders, and to engage in and support law reform litigation across the country addressing criminal justice, education, employment, fair housing, immigrants’ rights, language rights, redistricting, and
3

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 8 of 22 PageID #: 1365
voting rights. During its 45-year history, LatinoJustice has litigated numerous cases in both state and federal courts challenging multiple forms of racial discrimination by government actors including law enforcement practices that illegally target racial groups based upon their race, natural origin and immigration status.
The National Asian Pacific American Bar Association (“NAPABA”) is the national association of Asian Pacific American attorneys, judges, law professors, and law students, representing the interests of over seventy-five state and local Asian Pacific American bar associations and nearly 50,000 attorneys who work in solo practices, large firms, corporations, legal services organizations, nonprofit organizations, law schools, and government agencies. Since its inception in 1988, NAPABA has served as the national voice for Asian Pacific Americans in the legal profession and has promoted justice, equity, and opportunity for Asian Pacific Americans. In furtherance of its mission, NAPABA opposes discrimination, including on the basis of race, religion, and national origin, and promotes the equitable treatment of all under the law.
The National Bar Association (“NBA”) is the largest and oldest association of predominantly African-American attorneys and judges in the United States. The NBA was founded in 1925 when there were only 1,000 African-American attorneys in the entire country and when other national bar associations, such as the American Bar Association, did not admit African-American attorneys. Throughout its history, the NBA consistently has advocated on behalf of African Americans and other minority populations regarding issues affecting the legal profession. The NBA represents approximately 66,000 lawyers, judges, law professors, and law students, and it has over eighty affiliate chapters throughout the world.
4

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 9 of 22 PageID #: 1366
The National Native American Bar Association’s (“NNABA”) core mission is advancing justice for Native Americans, Native Hawaiians and Alaska Natives, communities which have survived injustice in the American legal system for hundreds of years, often as a result of unchecked power and institutionalized discrimination. NNABA believes justice for all Americans is advanced when, as here, citizens stand together to examine the fairness of the actions of our institutions.
The South Asian Bar Association of North America (“SABA”) is the umbrella organization for 26 regional bar associations in North America representing the interests of over 6,000 attorneys of South Asian descent. SABA provides a vital link for the South Asian community to the law and the legal system. Within the United States, SABA takes an active interest in the legal rights of South Asian and other minority communities. Members of SABA include immigration lawyers and others who represent persons that have been and will be affected by the Executive Order.
INTRODUCTION AND SUMMARY OF ARGUMENT History has taught us the risk of everlasting stains to this Nation’s constitutional fabric when the Judiciary turns a blind eye to broad-scale governmental actions targeting particular racial, ethnic, or religious groups. Notwithstanding that history, the federal government maintains that this Court should defer to the Executive’s determinations with regard to Executive Order No. 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” 82 Fed. Reg. 8977 (Jan. 27, 2017) (“Executive Order”). Respondents’ Memorandum of Law In Support of Motion to Dismiss the Petition, and In Opposition to Petitioners’ Motion for a Stay (D.E. #66-1), at 15-16. In other cases pertaining to the Executive Order, the federal government has even argued that the President has “unreviewable authority” to suspend the admission of “any class of aliens.” Emergency Motion Under Circuit Rule 27-3 for Administrative Stay and
5

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 10 of 22 PageID #: 1367
Motion for Stay Pending Appeal at 2, State of Wash. v. Trump, No. 17-35105 (9th Cir. Feb. 4, 2017). Two courts have emphatically rejected that proposition. See State of Wash. v. Trump, No. 17-35105, slip op. at 13-18 (9th Cir. Feb. 9, 2017); Aziz v. Trump, No. 17-cv-00116-LMBTCB (E.D.Va. Feb. 13, 2017) (D.E. #111), slip op. at 10-12.
In support of its sweeping contention that the Executive Order is immune from judicial review, the federal government has invoked the so-called “plenary power” doctrine—a doctrine whose limited role in modern American jurisprudence cannot bear the weight the government places on it. The plenary power doctrine derives from decisions such as Chae Chan Ping v. United States, 130 U.S. 581 (1889) (“Chinese Exclusion Case”), that were premised on racist and nativist precepts we now reject. In upholding a law that prohibited Chinese laborers from returning to the United States, the Chinese Exclusion Case relied on pejorative stereotypes to eschew judicial scrutiny.
Hearkening back to dissents from early cases, and informed by contemporary norms and the lessons of history, modern courts have refused to afford complete deference to executive and legislative decisions in the realm of immigration. Amici do not dispute that the Executive wields broad discretion with respect to national security considerations, nor do they challenge the Executive’s broad discretion to determine whether and in what circumstances particular aliens may be admitted into the United States. But (it should go without saying) that discretion is not without limits: it is bounded by the Constitution, and it is the role of the courts to ensure that such discretion is lawfully exercised.
As the Ninth Circuit recognized in refusing to stay an injunction blocking the Executive Order, judicial review is acutely important where, as here, the challenged action promulgates a broadly-applicable policy—particularly one that targets groups based on characteristics such as
6

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 11 of 22 PageID #: 1368

race, religion, or national origin. Slip op. at 15-16. Such action, in the name of national security,

is all too familiar to the Korematsu Center, which owes its existence to the forced relocation and

incarceration during World War II of more than 110,000 men, women, and children of Japanese

descent that was challenged—to no avail—in Korematsu v. United States, 323 U.S. 214 (1944).

Decades later, upon finally vacating Mr. Korematsu’s conviction for defying the baseless

military order, a federal court observed that the Korematsu precedent “stands as a constant

caution that in times of war or declared military necessity our institutions must be vigilant in

protecting constitutional guarantees”; “national security must not be used to protect

governmental actions from close scrutiny and accountability”; and courts “must be prepared to

exercise their authority to protect all citizens from the petty fears and prejudices that are so easily

aroused.” Korematsu v. United States, 584 F. Supp. 1406, 1420 (N.D. Cal. 1984).

That caution should be heeded here, and this Court should subject the Executive Order to

appropriate judicial scrutiny.

ARGUMENT

I.

THE “PLENARY POWER” DOCTRINE ORIGINATED FROM RACIST

NOTIONS THAT COURTS NOW REJECT.

1. To the extent the Supreme Court ever recognized a truly “plenary” power that would

preclude judicial review of any constitutional claims (which it has not), that conception is linked

to racist attitudes from a past era and has long since fallen out of favor.

In the Chinese Exclusion Case, the Court upheld a statute preventing the return of Chinese

laborers who had departed the United States prior to its passage. 130 U.S. at 581-582.

Describing the reasons underlying the law’s enactment, the Court characterized Chinese laborers

as “content with the simplest fare, such as would not suffice for our laborers and artisans,” and

observed that they remained “strangers in the land, residing apart by themselves[,] . . . adhering

7

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 12 of 22 PageID #: 1369
to the customs and usages of their own country” and unable “to assimilate with our people.” Id. at 595. “The differences of race added greatly to the difficulties of the situation.” Id. Residents of the West coast, the Court explained, warned of an “Oriental invasion” and “saw or believed they saw . . . great danger that at no distant day [the West] would be overrun by them, unless prompt action was taken to restrict their immigration.” Id.
Far from applying a skeptical eye to the law in light of the clear animus motivating its passage, the Court found that “[i]f 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 . . . its determination is conclusive upon the judiciary.” Id. at 606. See also Natsu Taylor Saito, The Enduring Effect of the Chinese Exclusion Cases: The Plenary Power Justification for On-Going Abuses of Human Rights, 10 ASIAN AM. L. J. 13, 15 (2003). In reality, the “right of self-preservation” that the Court validated as justification for the government’s unbounded power to exclude immigrants was ethnic and racial self-preservation, not the preservation of borders or national security. 130 U.S. at 608; see id. at 606 (“It matters not in what form . . . aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us.”). Similar racist and xenophobic attitudes are evident in decisions following the Chinese Exclusion Case. See, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 729-30 (1893) (upholding requirement that Chinese resident aliens offer “at least one credible white witness” in order to remain in the country); id. at 730 (noting Congress’s belief that testimony from Chinese witnesses could not be credited because of “the loose notions entertained by the witnesses of the obligation of an oath” (quoting Chinese Exclusion Case, 130 U.S. at 598)).
8

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 13 of 22 PageID #: 1370
2. While the Court’s early plenary power decisions were undoubtedly influenced by such attitudes now repudiated, the Court nonetheless recognized that the government’s sovereign authority is subject to constitutional limitations. See Chinese Exclusion Case, 130 U.S. at 604 (“[S]overeign powers[] [are] restricted in their exercise only by the constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations.”). And even in those early years, the Court divided over the reach of the government’s plenary power in light of those limitations. Fong Yue Ting, which upheld a law requiring Chinese laborers residing in the United States to obtain a special certificate of residence to avoid deportation, generated three dissenting opinions. See 149 U.S. at 738 (Brewer, J., dissenting) (“I deny that there is any arbitrary and unrestrained power to banish residents, even resident aliens.”); id. at 744 (Field, J., dissenting); id. at 762 (Fuller, J., dissenting) (similar). Even Justice Field, who authored the Court’s opinion in the Chinese Exclusion Case, sought to limit the plenary power doctrine’s application with regard to alien residents:
As men having our common humanity, they are protected by all the guaranties of the constitution. To hold that they are subject to any different law, or are less protected in any particular, than other persons, is, in my judgment, to ignore the teachings of our history, the practice of our government, and the language of our constitution. Id. at 754 (Fields, J., dissenting). Nearly 60 years later, judicial skepticism regarding an unrestrained plenary power persisted—and grew. Dissenting in Harisiades v. Shaughnessy, 342 U.S. 580 (1952), which upheld a provision permitting the deportation of resident aliens who were members of the Communist Party, Justice Douglas quoted Justice Brewer’s dissent in Fong Yue Ting, observing that it “grows in power with the passing years”:
9

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 14 of 22 PageID #: 1371
This doctrine of powers inherent in sovereignty is one both indefinite and dangerous . . . . The governments of other nations have elastic powers. Ours are fixed and bounded by a written constitution. The expulsion of a race may be within the inherent powers of a despotism. History, before the adoption of this constitution, was not destitute of examples of the exercise of such a power; and its framers were familiar with history, and wisely, as it seems to me, they gave to this government no general power to banish. Id. at 599-600 (Douglas, J., dissenting) (quoting Fong Yue Ting, 149 U.S. at 737-738 (Brewer, J., dissenting)) (emphasis added). In another McCarthy-era precedent, four Justices advocated for limitations on the plenary power doctrine. In Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), the Court rejected any constitutional challenge to the exclusion of an alien who had previously resided in the United States, despite his resulting detention at Ellis Island. In dissent, Justice Black, joined by Justice Douglas, reasoned that “[n]o society is free where government makes one person’s liberty depend upon the arbitrary will of another.” Id. at 217. “Dictatorships,” he observed, “have done this since time immemorial. They do now.” Id. Justice Jackson, joined by Justice Frankfurter, added that, while in his view the “detention of an alien would not be inconsistent with substantive due process,” such individuals must be “accorded procedural due process of law.” Id. at 224. 3. Perhaps reflective of the shift away from race-based characterizations and other outdated notions prevalent in its early plenary power precedents, the Court in recent years has been more willing to enforce constitutional limits on the federal government’s authority over immigration matters. For example, in Reno v. Flores, 507 U.S. 292 (1993), the Court held that, despite the broad power of the political branches over immigration, INS regulations must at least “rationally advanc[e] some legitimate governmental purpose.” Id. at 306. In Landon v. Plasencia, 459 U.S. 21 (1982), the Court affirmed that a resident alien returning from a brief trip abroad must be
10

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 15 of 22 PageID #: 1372
afforded due process in an exclusion proceeding, notwithstanding the government’s expansive discretion to exclude. Id. at 33. And in Zadvydas v. Davis, 533 U.S. 678 (2001), in response to the government’s contention that “Congress has ‘plenary power’ to create immigration law, and . . . the Judicial Branch must defer to Executive and Legislative Branch decisionmaking in that area,” the Court observed that such “power is subject to important constitutional limitations.” Id. at 695 (citations omitted). “[F]ocus[ing] upon those limitations,” the Court determined that the indefinite detention of aliens deemed removable would raise “serious constitutional concerns.” Id.at 695, 705. See also State of Wash. v. Trump, No. 17-35105, slip op. at 13-18 (9th Cir. Feb. 9, 2017) (collecting cases demonstrating reviewability of federal government action in immigration and national security matters).
Even the decisions on which the federal government has relied for its “plenary” power do not support its invocation in the present context. In fact, the Court’s most recent such decision supports the conclusion that, after more than a century of erosion, the “plenary power” doctrine as the federal government conceives it no longer exists. In Kerry v. Din, 135 S. Ct. 2128 (2015), the Court considered a due process claim arising from the denial without adequate explanation of a spouse’s visa application. Although it described the power of the political branches over immigration as “plenary,” Justice Kennedy’s concurring opinion in Din makes clear that courts may review an exercise of that power to ensure that the reason offered for the exclusion of an alien is “legitimate and bona fide.” Justice Kennedy explained that, although the Court in Kleindienst v. Mandel, 408 U.S. 753 (1972), had declined to balance the constitutional rights of American citizens injured by a visa denial against “Congress’s ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden,’” Kerry, 135 S. Ct. at 2139 (quoting Mandel, 408 U.S. at 766), the Court did
11

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 16 of 22 PageID #: 1373
inquire “whether the Government had provided a ‘facially legitimate and bona fide’ reason for its action,” id. at 2140 (quoting Mandel, 408 U.S. at 770). And while as a general matter courts are instructed not to “look behind” the government’s asserted reason for its decision provided it is “bona fide and legitimate,” Justice Kennedy stated that exceptions to that rule would apply if the challenger made “an affirmative showing of bad faith.” Id. at 2141.
To be sure, Justice Kennedy’s opinion in Din acknowledged that the political branches are entitled to wide latitude and deference in immigration matters. But, as the Ninth Circuit recognized, Din (and Mandel before it) concerned an individual visa denial on the facts of that case. By contrast, the Executive Order sets a nationwide immigration policy, suspending visas, prohibiting entry, and foreclosing any adjudications for all aliens of certain nationalities. That distinction strongly militates in favor of a more rigorous review of the Executive Order. While it may be sensible for courts to defer to the judgment of the political branches when considering the application of immigration law to a particular alien, “the President’s promulgation of a sweeping immigration policy,” slip op. at 16—especially one aimed at nationals of particular countries likely to share a common religion—is properly the subject of more exacting judicial scrutiny.
All told, the proposition that courts may not review the Executive Order is unsupported by modern judicial precedent. Even in cases concerning individual visa denials, the Court has inquired as to whether the government offered a “legitimate and bona fide” reason for the denial and has indicated that courts may look behind the government’s asserted rationale in circumstances suggesting bad faith. Where, as here, the courts are asked to review a broadlyapplicable policy—promulgated at the highest level of the Executive Branch and targeting aliens based on nationality and religion—the Court’s cases demand a more searching judicial review.
12

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 17 of 22 PageID #: 1374

Whatever the standard, this Court should reject the unsupported proposition that the President’s

Executive Order is immune from judicial review.

II.

KOREMATSU STANDS AS A STARK REMINDER OF THE NEED FOR

VIGILANT JUDICIAL REVIEW OF GOVERNMENTAL ACTION

TARGETING DISFAVORED GROUPS IN THE NAME OF NATIONAL

SECURITY.

In contending that the President’s discretion to exclude “any class of aliens” is plenary and

unreviewable—and, in any event, is justified by national security—the federal government has

asked the courts to take its word for it. But the notion that the political branches might use

national security as a smokescreen to discriminate against disfavored classes is not an unfounded

concern. This Court need look no further than the tragic chapter in our Nation’s history that gave

rise to Korematsu v. United States, 323 U.S. 214 (1944).

Almost exactly seventy-five years ago, on February 19, 1942, President Roosevelt issued

Executive Order No. 9066, which authorized the Secretary of War to designate military areas

from which “any or all persons” could be excluded and “with respect to which, the right of any

person to enter, remain in, or leave” would be subject to “whatever restrictions the Secretary of

War or the appropriate Military Commander may impose.” Executive Order No. 9066,

“Authorizing the Secretary of War to Prescribe Military Areas,” 7 Fed. Reg. 1407 (Feb. 19,

1942). Although it did not explicitly refer to Japanese Americans, that order resulted in the

forcible relocation and incarceration of more than 110,000 men, women, and children of

Japanese descent. Fred Korematsu, one of those Japanese Americans, was convicted for defying

the military’s invocation of the order. The Supreme Court upheld his conviction, along with the

convictions of Gordon Hirabayashi and Minoru Yasui, thus effectively sanctioning Japanese-

American incarceration during World War II on the purported basis of military necessity.

13

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 18 of 22 PageID #: 1375
Korematsu v. United States, 323 U.S. 214 (1944); see also Hirabayashi v. United States, 320 U.S. 81 (1943); Yasui v. United States, 320 U.S. 115 (1943).
The Court’s decision in Korematsu produced vigorous dissents, including one by Justice Murphy, who questioned the validity of the military interest the government advanced. Although acknowledging that the discretion of those entrusted with national security matters “must, as a matter of . . . common sense, be wide,” Korematsu, 323 U.S. at 234, Justice Murphy opined that “[i]t is essential that there be definite limits to military discretion” and that individuals not be “left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support.” Id. In his view, the Order “clearly d[id] not meet th[is] test” as it relied “for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage.” Id. at 235. While conceding that “there were some disloyal persons of Japanese descent on the Pacific Coast,” Justice Murphy dismissed the “infer[ence] that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group” as nothing more than “th[e] legalization of racism.” Id. at 240-241, 242.
History has proven Justice Murphy right. More than a half-century after the Court’s decision, the Solicitor General acknowledged that, contrary to its representations, the federal government knew at the time of the mass incarcerations that only “a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody.” U.S. Dep’t of Justice, Confession of Error: The Solicitor General's Mistakes During the Japanese-American Internment Cases (May 20, 2011), https://www.justice.gov/opa/blog/confession-error-solicitor-generals-mistakes-during-japaneseamerican-internment-cases; see also Neal K. Katyal, The Solicitor General and Confession of
14

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 19 of 22 PageID #: 1376
Error, 81 FORDHAM L. REV. 3027 (2012-2013). The federal government’s revelation occurred decades after a district court reversed Mr. Korematsu’s conviction and found “substantial support in the record that the government deliberately omitted relevant information and provided misleading information in papers before the court.” Korematsu, 584 F. Supp. at 1420. The Ninth Circuit made similar findings on its way to vacating Gordon Hirabayashi’s convictions. See Hirabayashi v. United States, 828 F.2d 591, 593 (9th Cir. 1987) (observing that, although the Supreme Court accepted the government’s contention that “the curfew was justified by military assessments of emergency conditions,” available materials demonstrated that “there could have been no reasonable military assessment of an emergency at the time, that the orders were based upon racial stereotypes, and that the orders caused needless suffering and shame for thousands of American citizens”) (footnotes omitted).2
The Supreme Court’s decision in Korematsu gave virtually a blank check to the Executive Branch to take action against disfavored minorities in the name of national security. Although the government asserted a facially valid justification for its action, that justification was later discredited. The revelation that the government’s unprecedented action was not in fact necessary is but one reason that Korematsu is not only widely understood as wrongly decided as a matter of law, but remains a black mark on our Nation’s history and serves as a stark reminder of the dire consequences that result when abuses go unchecked by the Judiciary. See, e.g., Michael Stokes Paulsen, Symposium: The Changing Laws of War: Do We Need A New Legal Regime After September 11?: The Constitution of Necessity, 79 NOTRE DAME L. REV. 1257, 1259 (2004)
2 Like Korematsu and Hirabayashi, Yasui petitioned for a writ of error coram nobis dismissing his indictment, vacating his conviction, and declaring the military order unconstitutional. In Yasui’s case, the court granted the government’s motion to dismiss the indictment and vacate his conviction without finding that his constitutional rights had been violated. See Yasui v. United States, 772 F.2d 1496 (9th Cir. 1985). Accordingly, Yasui's conviction was invalidated, but without any findings of fact to prove the injustice he suffered.
15

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 20 of 22 PageID #: 1377 (Complete “judicial acquiescence or abdication” of performing checks on Presidential power “has a name. That name is Korematsu.”). Korematsu, along with Plessy v. Ferguson, is regarded as “embod[ying] a set of propositions that all legitimate constitutional decisions must be prepared to refute.” Jamal Greene, The Anticanon, 125 HARV. L. REV. 379, 380 (2011). History may look similarly at this period if courts allow the Executive Order to evade robust review based on a plenary power doctrine rooted in outdated notions and xenophobia, or an unwillingness to apply healthy judicial skepticism to government action taken in the name of national security. This Court should not abdicate its duty to stand as a bulwark against governmental action that undermines our core constitutional principles.
16

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 21 of 22 PageID #: 1378

CONCLUSION For the foregoing reasons, this Court should grant the relief sought by Petitioners and Intervenor-Plaintiff.

Dated: February 16, 2017

Respectfully submitted,
AKIN GUMP STRAUSS HAUER & FELD LLP
/s/ Robert A. Johnson Robert A. Johnson Elizabeth C. Rosen Sofia Syed Daniella Roseman One Bryant Park New York, NY 10036 Telephone: (212) 872-1000 Facsimile: (212) 872-1002 rajohnson@akingump.com
Jessica M. Weisel (pro hac pending) 1999 Avenue of the Stars, Suite 600 Los Angeles, CA 90067 Telephone: (310) 229-1000 Facsimile: (310) 229-1001 jweisel@akingump.com
Attorneys for Amici Curiae

17

Case 1:17-cv-00480-CBA Document 129 Filed 02/16/17 Page 22 of 22 PageID #: 1379

CERTIFICATE OF SERVICE I hereby certify that, on February 16, 2017, I electronically filed the foregoing with the Clerk of Court for the United States District Court for the Eastern District of New York by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

Dated: February 16, 2017

/s/ Robert A. Johnson Robert A. Johnson Elizabeth C. Rosen Sofia Syed Daniella Roseman One Bryant Park New York, NY 10036 Telephone: (212) 872-1000 Facsimile: (212) 872-1002 rajohnson@akingump.com
Attorneys for Amici Curiae

 </s> Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 1 of 49 PageID #: 1849

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
HAMEED KHALID DARWEESH, et al., Petitioners,
and PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK,
Intervenor-Plaintiff, - against DONALD J. TRUMP, President of the United States, et al.,
Respondents.

17-cv-480-CBA

BRIEF FOR 167 MEMBERS OF CONGRESS AS AMICI CURIAE IN SUPPORT OF PETITIONERS AND INTERVENOR-PLAINTIFF

Elizabeth B. Wydra Brianne J. Gorod David H. Gans CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, NW, Suite 501 Washington, D.C. 20036 Tel.: (202) 296-6889 elizabeth@theusconstitution.org brianne@theusconstitution.org david@theusconstitution.org
Raymond H. Brescia Associate Professor of Law* Albany Law School 80 New Scotland Avenue Albany, New York 12208 Tel.: (518) 445-3247 rbres@albanylaw.edu *For affiliation purposes only

Peter Karanjia Jason Harrow DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue, NW, Suite 800 Washington, D.C. 20006 Tel.: (202) 973-4200 Fax: (202) 973-4499 peterkaranjia@dwt.com jasonharrow@dwt.com
Victor A. Kovner DAVIS WRIGHT TREMAINE LLP 1251 Avenue of the Americas, 21st Floor New York, New York 10020 Tel.: (212) 489-8230 Fax: (212) 489-8340 victorkovner@dwt.com

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 2 of 49 PageID #: 1850
TABLE OF CONTENTS Page
INTEREST OF AMICI CURIAE .................................................................................................... 1 SUMMARY OF ARGUMENT ...................................................................................................... 1 ARGUMENT .................................................................................................................................. 5
I. BECAUSE THE EXECUTIVE ORDER DISCRIMINATES ON THE BASIS OF RELIGION, IT CANNOT BE SQUARED WITH THE CONSTITUTION’S TEXT AND HISTORY. ....................................................... 6
II. BECAUSE THE EXECUTIVE ORDER DISCRIMINATES ON THE BASIS OF NATIONALITY, IT CANNOT BE SQUARED WITH THE CONSTITUTION’S TEXT AND HISTORY OR THE IMMIGRATION AND NATIONALITY ACT................................................................................. 12 A. The Order Violates The Fifth Amendment’s Due Process Clause Because The Order’s Broad Restrictions Based On Nationality Are Not Rationally Related To Any Legitimate Government Interests. ......... 12 B. By Discriminating On The Basis Of Nationality, The Order Also Runs Afoul Of The Immigration And Nationality Act. ............................ 17 1. The INA Categorically Prohibits Discrimination Based On, Among Other Things, Nationality, Place Of Birth, Or Place Of Residence. ................................................................................ 18 2. The Provision On Which The Order Relies Cannot Override The Act’s Explicit Prohibition On Discrimination. ...................... 21
CONCLUSION............................................................................................................................. 25
i

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 3 of 49 PageID #: 1851
TABLE OF AUTHORITIES
Page(s)
Cases Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,
512 U.S. 687 (1994).......................................................................................................6, 10, 11
Boumediene v. Bush, 553 U.S. 723 (2008)...............................................................................................................5, 6
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)...........................................................................................................10, 11
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985).................................................................................................................15
Fiallo v. Bell, 430 U.S. 787 (1977)...................................................................................................................5
Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442 (S.D. Fla. 1980) .....................................................................................18, 19
Hamdan v. Rumsfeld, 548 U.S. 557 (2006).................................................................................................................22
Hampton v. Mow Sun Wong, 426 U.S. 88 (1976)...................................................................................................................12
Hirayabashi v. United States, 320 U.S. 81 (1943)...................................................................................................................12
In re Griffiths, 413 U.S. 717 (1973)...................................................................................................................1
INS v. Chadha, 462 U.S. 919 (1983)...............................................................................................................5, 6
King v. Burwell, 135 S. Ct. 2480 (2015) ...............................................................................................................5
Korematsu v. United States, 323 U.S. 214 (1944).................................................................................................................12
Larson v. Valente, 456 U.S. 228 (1982).................................................................................................................10
ii

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 4 of 49 PageID #: 1852
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469 (D.C. Cir. 1995) ...................................................................................4, 18, 22, 25
McCreary Cty. v. ACLU of Ky., 545 U.S. 844 (2005).............................................................................................................7, 11
Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979) .................................................................................................13
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008)............................................................................................... 12-13
Romer v. Evans, 517 U.S. 620 (1996).......................................................................................................4, 13, 15
United States v. Windsor, 133 S. Ct. 2675 (2013) .....................................................................................................8, 9, 12
Wallace v. Jaffree, 472 U.S. 38 (1985)...................................................................................................................10
Walz v. Tax Comm’n of N.Y. City, 397 U.S. 664 (1970).................................................................................................................10
Washington v. Trump, --- F.3d ---, 2017 WL 526497 (9th Cir. Feb. 9, 2017) .....................................................2, 6, 14
Wong Wing Hang v. INS, 360 F.2d 715 (2d Cir. 1966).....................................................................................................21
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).................................................................................................................22
Zadvydas v. Davis, 533 U.S. 678 (2001)...............................................................................................................1, 5
Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015) .............................................................................................................22
Constitutional Provisions
U.S. Const. amend. I..............................................................................................................................3, 7, 8 amend. V ......................................................................................................................3, 8, 9, 12 amend. XIV..........................................................................................................................9, 12 art. III .........................................................................................................................................5 art. VI, § 3 ..............................................................................................................................3, 6
iii

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 5 of 49 PageID #: 1853
Statutes
8 U.S.C. § 1101(a)(42)(A) ......................................................................................................................22 § 1151(b)(2)(A)(i) ....................................................................................................................23 § 1152(a)(1)(A) ........................................................................................................4, 18, 19, 22 § 1152(a)(1)(B) ........................................................................................................................25 § 1152(a) ............................................................................................................................22, 25 § 1153.......................................................................................................................................23 § 1182(f).........................................................................................................................5, 18, 21 § 1187(a)(12)(A) ......................................................................................................................23 § 1187(a)(12)(B) ......................................................................................................................23
Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, Pub. L. No. 114-113, Div. O, Title II, § 203 (2015) ................................................................14
Regulations
50 Fed. Reg. 41329 (1985) ............................................................................................................24
51 Fed. Reg. 30470 (1986) ......................................................................................................24, 25
71 Fed. Reg. 28541 (2006) ............................................................................................................24
Legislative Materials
Annals of Cong., 5th Cong., 2d Sess. (1798) ................................................................................................3, 8, 9
Cong. Globe, 37th Cong., 2d Sess. (1862) ......................................................................................................9 39th Cong., 1st Sess. (1866) ...............................................................................................9, 10
H.R. Rep. No. 89-745 (1965).........................................................................................................18
Immigration: Hearings on H.R. 2580 Before the Subcomm. on Amending the Immigration and Nationality Act, and for other purposes of the H. Comm. on the Judiciary, 89th Cong. 418 (1965) (statement of Rep. Benjamin S. Rosenthal) ................................................................................................................................19
Immigration: Hearings on H.R. 2580 Before the Subcomm. on Immigration and Nationality of H. Comm. on the Judiciary, 89th Cong. 2 (1965) (statement of Attorney General Nicholas Katzenbach) .................................................................................20
Immigration: Hearings on H.R. 7700 and 55 and Identical Bills Before the Subcomm. No. 1 of the H. Comm. on the Judiciary, 88th Cong. 391 (1964) (statement of Secretary of State Dean Rusk) ...........................................................................20
iv

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 6 of 49 PageID #: 1854
Immigration: Hearings on H.R. 7700 and 55 Identical Bills Before the Subcomm. on Amending the Immigration and Nationality Act, and for other purposes of the H. Comm. on the Judiciary, 88th Cong. 208 (1964) (statement of Rep. Harold Ryan)............................................................................................................................19
Immigration: Hearings on S. 500 Before the Subcomm. on Immigration and Naturalization of the S. Comm. on the Judiciary, 89th Cong. 547 (1965) (statement of Sen. Maurine B. Neuberger) ..............................................................................19
Lyndon B. Johnson, Remarks at the Signing of the Immigration Bill (Oct. 3, 1965) ...........................................................................................................................19
Treaties
1951 Convention Relating to the Status of Refugees, opened for signature July 28,1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 (entered into force Apr. 22, 1954) ....................22
1967 Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967) ............................22
Other Authorities
2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 196 (Jonathan Elliot ed. 1836) (“Elliot’s Debates”) .........................................5, 7
Alex Nowrasteh, Guide to Trump’s Executive Order To Limit Migration for “National Security” Reasons, Cato Inst.: Cato at Liberty (Jan. 26, 2017), https://www.cato.org/blog/guide-trumps-executive-order-limit-migrationnational-security-reasons .........................................................................................................14
Amy B. Wang, Trump asked for a “Muslim ban,” Guiliani says—and ordered a commission to do it legally, Wash. Post (Jan. 29, 2017), https://www.washingtonpost.com/news/the-fix/wp/2017/01/29/trump-askedfor-a-muslim-ban-giuliani-says-and-ordered-a-commission-to-do-itlegally/?utm_term=.aa581a145c57........................................................................................2, 6
Associated Press, State Dept: Fewer Than 60,000 Visas Canceled by Trump Order (Feb. 3, 2017), https://www.nytimes.com/aponline/ 2017/02/03/us/politics/ap-us-travel-ban-visas-revoked.html?_r=0 .........................................21
Carla Marinucci, Rice, Albright Criticize Trump’s Executive Order, Politico, Feb. 1, 2017, http://www.politico.com/states/california/story/2017/02/condirice-and-madeline-albright-deliver-blistering-joint-rebuke-of-trumpimmigration-policy-109285 .....................................................................................................16
Daniel Burke, Trump says US will prioritize Christian refugees, CNN.com (Jan. 30, 2017), http://www.cnn.com/2017/01/27/politics/trump-christianrefugees/ .................................................................................................................................3, 6
v

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 7 of 49 PageID #: 1855
Dara Lind, Donald Trump proposes “total and complete shutdown of Muslims entering the United States, Vox.com (Dec. 7, 2015), http://www.vox.com/2015/12/7/9867900/donald-trump-muslims ........................................2, 6
Department of State, 2 FAM 070 DISSENT CHANNEL, Department of State (2011), https://fam.state.gov/fam/02fam/02fam0070.html ......................................................16
Dissent Channel: Alternatives to Closing Doors in Order to Secure Our Borders, Dissent Channel (2017), https://assets.documentcloud.org/documents/3438487/Dissent-Memo.pdf ............................16
DHS Press Release, DHS, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016) .....................................................................................14
Elise Labott, Over 900 US career diplomats protest Trump order, CNN.com (Jan. 31, 2017), http://www.cnn.com/2017/01/30/politics/ career-diplomatsdissent-memo ...........................................................................................................................16
Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN.com (Jan. 30, 2017), http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/ .......................................17
Gerald M. Boyd, Reagan Acts To Tighten Trade Embargo of Cuba, N.Y. Times (Aug. 23, 1986), http://www.nytimes.com/1986/08/23/ world/reagan-acts-to-tighten-trade-embargo-of-cuba.html .....................................................24
James Madison, Memorial and Remonstrance Against Religious Assessments, in 2 The Writings of James Madison 183 (G. Hunt ed. 1901) .......................................................7
Jim Endrizzi et al., Visas Mantis Security Advisory Opinions, NAFSA.com, https://www.nafsa.org/findresources/Default.aspx?id=8645 (last visited Feb. 15, 2017) ..........................................................................................................................15
Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports, Agencies, Reuters.com, Jan. 29, 2017, http://www.reuters.com/article/us-usa-trump-immigration-confusionidUSKBN15D07S?il=0 ...........................................................................................................17
2 Joseph Story, Commentaries on the Constitution, § 1293 (3d ed. 1858)..................................3, 8
Kate M. Manuel, Cong. Research Serv., Executive Authority to Exclude Aliens: In Brief (Jan. 23, 2017), https://fas.org/sgp/crs/homesec/R44743.pdf.........................................24
Kentucky Resolutions of 1798, 4 Elliot’s Debates at 543 ...............................................................8
Letter from George Washington to the Hebrew Congregation in Newport, Rhode Island (Aug. 18, 1790), https://founders.archives.gov/documents/Washington/05-06-02-0135 .....................................8
vi

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 8 of 49 PageID #: 1856
Madison’s Report on the Virginia Resolutions, 4 Elliot’s Debates at 556 ......................................9 Michael D. Shear & Ron Nixon, How Trump’s Rush To Enact an Immigration
Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/2017/01/29/us/politics/donald-trump-rushimmigration-order-chaos.html .................................................................................................17 Thomas Jefferson, Virginia Act for Establishing Religious Freedom (Oct. 31, 1785) ...........................................................................................................................7 U.S. Customs & Border Protection, Visa Waiver Program Improvement and Terrorist Travel Prevention Act Frequently Asked Questions, https://www.cbp.gov/travel/international-visitors/visa-waiver-program/visawaiver-program-improvement-and-terrorist-travel-prevention-act-faq (last visited Feb. 15, 2017)...............................................................................................................14 U.S. Department of State, Alert Feb. 4, 2017 ‘Important Announcement: Executive Order On Visas,’ https://travel.state.gov/content/travel/en/news/important-announcement.html .......................21 U.S. Department of State, “Presidential Proclamations” (current as of Feb. 6, 2017), https://travel.state.gov/content/visas/en/fees/presidentialproclamations.html; archived version, https://perma.cc/M2RL-6775 .....................................23 U.S. Refugee Admissions Program, U.S. Department of State, https://www.state.gov/j/prm/ra/admissions/ (last visited Feb. 15, 2017).................................15 Virginia Resolutions of 1798, Address to the People, 4 Elliot’s Debates .......................................8
vii

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 9 of 49 PageID #: 1857
INTEREST OF AMICI CURIAE Amici are 167 members of Congress who are familiar with the Immigration and Nationality Act and other laws passed by Congress related to immigration and national security concerns, as well as the interplay between those laws and constitutional guarantees. Many amici have participated in the drafting of immigration and national security legislation and serve or have served on key committees with jurisdiction over these issues. Amici are also committed to ensuring that our immigration laws and policies both help protect the nation from foreign and domestic attacks and comport with fundamental constitutional principles, such as religious freedom and equal protection under the law. Amici are thus particularly well-situated to provide the Court with insight into the limitations that both the Constitution and federal immigration laws impose on the Executive Branch’s discretion to restrict admission into the country, and have a strong interest in seeing those limitations respected. A full listing of amici appears in the Appendix.
SUMMARY OF ARGUMENT The United States is a nation built on immigration: “From its inception, our Nation welcomed and drew strength from the immigration of aliens.” In re Griffiths, 413 U.S. 717, 719 (1973). It is also a nation built on the rule of law. As members of Congress, amici recognize that the President has broad authority over immigration and national security matters, but that “power is subject to important constitutional limitations,” Zadvydas v. Davis, 533 U.S. 678, 695 (2001), as well as statutory limitations reflected in the Immigration and Nationality Act (“INA”). The President’s January 27, 2017 Executive Order (the “Order”) transgresses those constitutional and statutory limitations, and this Court has both the authority and duty to say so. Id. at 695. As the Ninth Circuit recently explained in rejecting the Administration’s claim that the Order is “unreviewable,” “[t]here is no precedent to support this claimed unreviewability, which runs

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 10 of 49 PageID #: 1858
contrary to the fundamental structure of our constitutional democracy.” Washington v. Trump, --F.3d ---, 2017 WL 526497, at *5 (9th Cir. Feb. 9, 2017).
Even during the short period while the Order remained fully in effect—before courts across the country intervened to restrain ongoing violations of constitutional and statutory rights, pending further review—the Order unleashed chaos and abridged the rights of countless individuals with ties to the seven Muslim-majority countries that it targets. Within hours of being signed, the Order barred from entry to the United States thousands of visa holders who had already undergone months of rigorous vetting, led to the unjustified detention at domestic airports of numerous others lawfully entering the country, and left many more stranded while en route to the United States. Making matters worse, the Order’s effects are not limited to those seeking to enter the country using duly issued visas. The Order prevents U.S. citizens, lawful permanent residents, refugees, and asylees within the United States from sponsoring and reuniting with their children, spouses, and other relatives who are nationals of the targeted countries. It also prevents lawful permanent residents and nonimmigrant-visa holders from leaving the United States for fear of being refused entry upon their return.
On top of all this, the Order—in both practical effect and design—targets Muslims, consistent with President Trump’s repeated promises (while still a candidate) that he would limit entry of Muslims into the country.1 Indeed, the President’s public statements have made clear that the preference the Order explicitly creates for members of a “minority religion,” Order § 5(b), is designed to “help” only “Christians,” and not adherents of other faiths who are
1 See, e.g., Dara Lind, Donald Trump proposes “total and complete shutdown of Muslims entering the United States, Vox.com (Dec. 7, 2015), http://www.vox.com/2015/12/7/ 9867900/donald-trump-muslims; Amy B. Wang, Trump asked for a “Muslim ban,” Guiliani says—and ordered a commission to do it legally, Wash. Post (Jan. 29, 2017), https://www.washingtonpost.com/news/the-fix/wp/2017/01/29/trump-asked-for-a-muslim-bangiuliani-says-and-ordered-a-commission-to-do-it-legally/?utm_term=.aa581a145c57.
2

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 11 of 49 PageID #: 1859
persecuted.2 It is small wonder, then, that the Order has been widely perceived across the globe as an affront to Muslims.
The Order flies in the face of one of our most deeply rooted constitutional values: that the government must not favor (or disfavor) any particular religion. As the Constitution’s text and history make clear, the Religion Clauses—both Article VI’s prohibition on the use of religious tests, and the First Amendment’s promise of “free exercise of religion” and prohibition on “laws respecting an establishment of religion”—prohibit a religious test that singles out a religion for discriminatory treatment under our immigration laws.
The Order’s religious discrimination also runs afoul of the Fifth Amendment’s requirement of due process, which includes the guarantee of the equal protection of the laws. The original meaning of the Constitution confirms that those core principles of equality protect both citizen and noncitizen alike. Indeed, during debates over the Alien Act of 1798—which authorized the President to remove aliens he deemed harmful to the public peace and safety— opponents of the Act time and again emphasized the breadth of the Fifth Amendment’s guarantee of due process, which “speaks of persons, not of citizens.” Annals of Cong., 5th Cong., 2d Sess. 1956 (1798). Those views ultimately carried the day, as the Act was widely viewed as unconstitutional, leaving “no permanent traces in the constitutional jurisprudence of the country.” 2 Joseph Story, Commentaries on the Constitution, § 1293, at 173 (3d ed. 1858).
Even apart from the fatal flaws of government-sponsored religious discrimination, the Order’s facial classification on the basis of nationality runs into additional obstacles—both constitutional and statutory. As a constitutional matter, the Order contravenes settled principles of equal protection. As the Supreme Court has long recognized, “even in the ordinary equal
2 Daniel Burke, Trump says US will prioritize Christian refugees, CNN.com (Jan. 30, 2017), http://www.cnn.com/2017/01/27/politics/trump-christian-refugees/.
3

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 12 of 49 PageID #: 1860
protection case calling for the most deferential of standards, [courts] insist on knowing the relation between the classification adopted and the object to be attained.” Romer v. Evans, 517 U.S. 620, 632 (1996). This Order does not survive even rational-basis review. To begin with, it is vastly overbroad—targeting both individuals and countries in a way that does nothing to further the Order’s stated purpose of “protect[ing] the American people from terrorist attacks by foreign nationals admitted to the United States,” Order, Preamble. At least since 1975, not a single American has been killed as a result of terrorist attacks on U.S. soil carried out by individuals born in the seven countries targeted. See infra at 14. Further, because the Order denies immigration benefits based on where that person is “from,” Order § 3(c), it inexplicably sweeps in tens of thousands of individuals who plainly pose no terrorist threat, including long-time residents with homes, jobs, and families in the United States, as well as U.S. citizens seeking to reunite with immediate family members from those countries. The upshot is that the Order does exactly the opposite of what it intends—undermining, rather than enhancing, the nation’s security.
As a statutory matter, the Order cannot be squared with Congress’s clearly expressed intent in the INA. The INA categorically prohibits discrimination in the issuance of immigrant visas based on, among other things, “nationality, place of birth, or place of residence.” 8 U.S.C. § 1152(a)(1)(A). In enacting that provision, Congress abolished a prior, widely condemned system of quotas based on national origin and “unambiguously directed that no nationality-based discrimination shall occur,” Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469, 473 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996). While the Administration relies on Section 212(f) of the INA, which allows the President, under certain circumstances, to “suspend the entry of all aliens or any class of aliens as immigrants or
4

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 13 of 49 PageID #: 1861
nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate,” 8 U.S.C. § 1182(f), that provision cannot be read—and has never been read—to authorize the sort of wholesale discrimination involved here. Indeed, interpreting the INA to allow sweeping bans based on nationality would render the later-enacted nondiscrimination provision a dead letter.
The best way to protect the security of the nation, to uphold foundational American values, and to safeguard our democracy is to respect the Constitution’s fundamental protections and the laws passed by Congress. “Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.” Boumediene v. Bush, 553 U.S. 723, 798 (2008).
ARGUMENT The Supreme Court has never given any President in history what this Administration now seeks—a blank check to control entry into the country, irrespective of constitutional and statutory limitations. See Fiallo v. Bell, 430 U.S. 787, 793 n.5 (1977). As the Court has long recognized, the President’s authority over immigration does not change the fundamental principle that “Congress has plenary authority in all cases in which it has substantive legislative jurisdiction, so long as the exercise of that authority does not offend some other constitutional restriction.” INS v. Chadha, 462 U.S. 919, 941 (1983) (citation omitted). Nor does it eliminate the Framers’ design that when other branches of government transgress constitutional boundaries, “the judicial department is a constitutional check,” 2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 196 (Jonathan Elliot ed. 1836) (“Elliot’s Debates”). Consistent with the fundamental role of Article III courts “to say what the law is,” King v. Burwell, 135 S. Ct. 2480, 2496 (2015) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)), this Court must ensure that the President’s actions comport with “important constitutional limitations,” Zadvydas, 533 U.S. at 695, and that the President has used a
5

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 14 of 49 PageID #: 1862
“constitutionally permissible means of implementing” the authority he claims. Chadha, 462 U.S. at 941-42; see Boumediene, 553 U.S. at 765 (“Even when the United States acts outside its borders, its powers are not ‘absolute and unlimited’ but are subject ‘to such restrictions as are expressed in the Constitution.’” (citation omitted)). As the Ninth Circuit recognized, “courts can and do review constitutional challenges to the substance and implementation of immigration policy.” Washington, 2017 WL 526497, at *6. I. BECAUSE THE EXECUTIVE ORDER DISCRIMINATES ON THE BASIS OF
RELIGION, IT CANNOT BE SQUARED WITH THE CONSTITUTION’S TEXT AND HISTORY. Although drafted to appear facially neutral with respect to religion, the Order, by its design, practical operation, and widespread perception, targets Muslims. It singles out nationals only from majority-Muslim countries. Moreover, President Trump has repeatedly said that he wanted to limit Muslim entry into the country, see, e.g., Lind, supra, and he has made clear that the Order’s preferential treatment for “minorities” is designed to “help” Christians in majorityMuslim countries, Burke, supra. That is not all. At least one close adviser to the President has publicly stated that this focus on nationality was designed to implement a “Muslim ban.” See Wang, supra. In this context, the Order’s discrimination on the basis of religion, which creates a “danger of stigma and stirred animosities” toward Muslims, see Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 703 (1994) (Kennedy, J., concurring), violates the Constitution. Our Constitution promises religious freedom to people of all religions and nationalities. The Constitution prohibits all religious tests for federal office, providing that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” U.S. Const. art. VI, cl. 3. This ban on the use of religious tests reflects the Framers’ belief that “as all have an equal claim to the blessings of the government under which they live, and which
6

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 15 of 49 PageID #: 1863
they support, so none should be excluded from them for being of any particular denomination in religion.” 2 Elliot’s Debates at 119. The United States was conceived as a “great and extensive empire,” where “there is, and will be, a great variety of sentiments in religion among its inhabitants.” Id. at 118-19. As Reverend Daniel Shute observed during the debates in the Massachusetts ratifying convention: “[W]ho shall be excluded from national trusts? Whatever answer bigotry may suggest, the dictates of candor and equity, I conceive, will be, None.” Id. at 119 (emphasis in original).
Article VI’s ban on religious tests, however, was not alone sufficient to ensure religious freedom to all. In 1791, the Framers added the First Amendment to the Constitution, broadly guaranteeing the “free exercise of religion” and prohibiting the making of any “law respecting an establishment of religion.” U.S. Const. amend I. That Amendment “expresses our Nation’s fundamental commitment to religious liberty”: the Religion Clauses were “written by the descendants of people who had come to this land precisely so that they could practice their religion freely. . . . [T]he Religion Clauses were designed to safeguard the freedom of conscience and belief that those immigrants had sought.” McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 881 (2005) (O’Connor, J., concurring).
As our nation’s Framers noted at the time, the guarantee of free exercise and the structural prohibition on establishment together ensure that “[t]he Religion . . . of every man must be left to the conviction and conscience of every man,” James Madison, Memorial and Remonstrance Against Religious Assessments, in 2 The Writings of James Madison 183, 184 (G. Hunt ed. 1901), and that “opinion[s] in matters of religion . . . shall in no wise diminish, enlarge, or affect [our] civil capacities,” Thomas Jefferson, Virginia Act for Establishing Religious Freedom (Oct. 31, 1785). These twin guarantees ensure that “[a]ll possess alike liberty of
7

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 16 of 49 PageID #: 1864
conscience . . . . It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. [H]appily the Government of the United States . . . gives to bigotry no sanction, to persecution no assistance.” Letter from George Washington to the Hebrew Congregation in Newport, Rhode Island (Aug. 18, 1790), https://founders.archives.gov/documents/Washington/05-06-02-0135.
At the same time they added the First Amendment to the Constitution, the Framers also added the Fifth Amendment, including its Due Process Clause. That Clause—which states that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law”— “contains within it the prohibition against denying to any person the equal protection of the laws,” thereby “withdraw[ing] from Government the power to degrade or demean.” United States v. Windsor, 133 S. Ct. 2675, 2695 (2013). Significantly, when the Framers adopted this Amendment, they made clear that its protections extend to both citizens and noncitizens alike. During debates over the Alien Act of 1798, which authorized the President to remove aliens he considered harmful to the public peace and safety, the Act was broadly denounced as “bestow[ing] upon the President despotic power over a numerous class of men,” see Virginia Resolutions of 1798, Address to the People, 4 Elliot’s Debates at 531, and reducing noncitizens to the status of “outlaws” subject to the “absolute dominion of one man,” Kentucky Resolutions of 1798, 4 Elliot’s Debates at 543. Although it was enacted into law, the Act was widely viewed as unconstitutional, leaving “no permanent traces in the constitutional jurisprudence of the country.” 2 Joseph Story, Commentaries on the Constitution, § 1293, at 173.3
3 Opponents of the Alien Act time and again emphasized that the Fifth Amendment’s guarantee of due process “speaks of persons, not citizens; so far as it relates to personal liberty, the Constitution and the common law includes aliens as well as citizens; and if Congress have the power to take it from one, they may also take it from the other.” Annals of Cong., 5th Cong., 2d Sess. 1956. Answering those who thought the government had a free hand when regulating
8

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 17 of 49 PageID #: 1865
More than seventy years after the Founding, the Fourteenth Amendment was added to the Constitution, including its express prohibition on any state efforts to “deny to any person . . . the equal protection of the laws.” U.S. Const. amend XIV, § 1. The Fourteenth Amendment’s equal protection guarantee has been incorporated into the Fifth Amendment’s Due Process Clause, and thus requires the federal government to respect the same principles of equality that bind the States. See Windsor, 133 S. Ct. at 2695 (observing that “the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved”). That equal protection guarantee reflected the enduring constitutional value of protecting all persons, regardless of whether they were citizens or immigrants coming to the United States for the first time: “[T]he patriots of America proclaimed the security and protection of law for all. . . . No matter what spot of the earth’s surface, they were born; no matter whether an Asiatic or African, a European or an American sun first burned upon them; no matter citizens or strangers; no matter whether rich or poor . . . , this new Magna Carta to mankind declares the rights of all to life and liberty and property to be equal before the law.” Cong. Globe, 37th Cong., 2d Sess. 1638 (1862).
The original meaning of the equal protection guarantee “establishes equality before the law,” Cong. Globe, 39th Cong., 1st Sess. 2766 (1866), “abolishes all class legislation in the States[,] and does away with the injustice of subjecting one caste of persons to a code not applicable to another.” Id. Indeed, from the very beginning, the Fourteenth Amendment’s guarantee of equality was particularly important to prevent state-sponsored discrimination
the status of noncitizens, Edward Livingston argued that “the Constitution expressly excludes any idea of this distinction.” Annals of Cong., 5th Cong., 2d Sess. at 2012. As Madison pointed out, “[i]f aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or other incidents to a fair trial.” Madison’s Report on the Virginia Resolutions, in 4 Elliot’s Debates at 556.
9

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 18 of 49 PageID #: 1866
against immigrants. See infra at 12-13 (discussing the reach of the equal protection guarantee). Exemplifying that view, Congressman John Bingham—one of the drafters of the Fourteenth Amendment—demanded that “all persons, whether citizens or strangers, within this land . . . have equal protection in every State in this Union in the rights of life and liberty and property[.]” Cong. Globe, 39th Cong., 1st Sess. at 1090.
Consistent with this text and history, precedent confirms that the Constitution’s prohibition on religious discrimination applies to all persons. As the Supreme Court has repeatedly made plain, the rule that “one religious denomination cannot be officially preferred over another” is the “clearest command of the Establishment Clause.” Larson v. Valente, 456 U.S. 228, 244 (1982). Indeed, that command lies at the “heart of the Establishment Clause.” Kiryas Joel, 512 U.S. at 703; see id. at 714 (O’Connor, J., concurring) (“[T]he government generally may not treat people differently based on the God or gods they worship, or do not worship.”); id. at 728-29 (Kennedy, J., concurring) (“[T]he Establishment Clause forbids the government to use religion as a line-drawing criterion.”); id. at 728-29 (Kennedy, J., concurring) (the Religion Clauses forbid “religious gerrymandering”). In short, “the Establishment Clause is infringed when the government makes adherence to religion relevant to a person’s standing in the political community.” Id. at 715 (O’Connor, J., concurring) (quoting Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O’Connor, J., concurring)).
Free exercise principles, too, proscribe “[o]fficial action that targets religious conduct” for adverse treatment, and require courts to “‘survey meticulously the circumstances of governmental categories to eliminate . . . religious gerrymanders.’” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (quoting Walz v. Tax Comm’n of N.Y. City, 397 U.S. 664, 696 (1970) (Harlan, J., concurring)). In sum, “the Religion Clauses . . . all
10

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 19 of 49 PageID #: 1867
speak with one voice on this point: Absent the most unusual circumstances, one’s religion ought not affect one’s legal rights or duties or benefits.” Kiryas Joel, 512 U.S. at 715 (O’Connor, J., concurring). Similarly, discrimination by the government on the basis of religion has long been viewed as manifestly inconsistent with the basic equality guarantee that our Constitution promises to all. See id. at 728 (Kennedy, J., concurring) (“[T]he Establishment Clause mirrors the Equal Protection Clause. Just as the government may not segregate people on account of their race, so too it may not segregate on the basis of religion. The danger of stigma and stirred animosities is no less acute for religious line-drawing than for racial.”).
It is irrelevant that the Executive Order here does not mention Muslims by name. “Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination.” Church of Lukumi Babalu, 508 U.S. at 534; Kiryas Joel, 512 U.S. at 699 (“[O]ur analysis does not end with the text of the statute at issue.”). Context matters, see McCreary, 545 U.S. at 861-62; Kiryas Joel, 512 U.S. at 699, and the contextual evidence that the Order singles out and stigmatizes Muslims is overwhelming. See supra at 6. Nor does it matter that the Order does not apply to all Muslims. In Kiryas Joel, for instance, the Supreme Court struck down a gerrymandered school district drawn to favor a single Jewish sect. See id. at 705 (“Here the benefit only flows to a single sect, but aiding this single, small religious group causes no less a constitutional problem than would follow from aiding a sect with more members or religion as a whole.”). Singling out seven Muslim-majority nations (particularly after repeatedly stating the intent to ban all Muslims from the United States), while providing better treatment for religious minorities with the intent of prioritizing Christians, establishes both a religious test and constitutes discrimination on the basis of religion. Such action is plainly inconsistent with the principles of religious freedom and anti-discrimination enshrined in our Constitution.
11

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 20 of 49 PageID #: 1868
II. BECAUSE THE EXECUTIVE ORDER DISCRIMINATES ON THE BASIS OF NATIONALITY, IT CANNOT BE SQUARED WITH THE CONSTITUTION’S TEXT AND HISTORY OR THE IMMIGRATION AND NATIONALITY ACT. A. The Order Violates The Fifth Amendment’s Due Process Clause Because The Order’s Broad Restrictions Based On Nationality Are Not Rationally Related To Any Legitimate Government Interests. As noted above, the Due Process Clause of the Fifth Amendment, which provides that
“[n]o person shall be . . . deprived of life, liberty, or property, without due process of law,” U.S. Const. amend V, “contains within it the prohibition against denying to any person the equal protection of the laws,” and “withdraws from Government the power to degrade or demean.” Windsor, 133 S. Ct. at 2695. Like the States, the federal government “must govern impartially,” and “equal justice under law” for all persons is therefore “served by the Fifth Amendment’s guarantee of due process, as well as by the Equal Protection Clause of the Fourteenth Amendment.” Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976). Just as these guarantees prohibit discrimination on the basis of religion, they also prohibit discrimination on the basis of nationality.
Indeed, discrimination by the government on the basis of national origin has long been viewed as manifestly inconsistent with the basic guarantee our Constitution promises to all. See Hirayabashi v. United States, 320 U.S. 81, 100 (1943) (“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”); Korematsu v. United States, 323 U.S. 214, 234-35 (1944) (Murphy, J., dissenting) (“Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment.”). To be sure, the federal government has greater latitude in the immigration context to regulate on the basis of nationality than it does on the basis of religion, and reasonable actions in response to demonstrable security threats will be upheld. See, e.g., Rajah v. Mukasey,
12

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 21 of 49 PageID #: 1869
544 F.3d 427 (2d Cir. 2008) (9/11 attacks); Narenji v. Civiletti, 617 F.2d 745 (D.C. Cir. 1979) (Iran hostage crisis). That does not mean, however, that the government has a blank check to discriminate against individuals based on their ancestry. See Rajah, 544 F.3d at 438 (recognizing that actions based on “animus . . . would call for some remedy”).
Even if viewed only as a regulation of nationality, the Order still fails because its discrimination on that basis cannot survive even the most limited judicial review. As the Supreme Court has long recognized, even in equal protection cases applying “the most deferential of standards,” courts “insist on knowing the relation between the classification adopted and the object to be attained.” Romer, 517 U.S. at 632. Thus, at a minimum, the government’s classification must “bear a rational relationship to an independent and legitimate legislative end.” Id. at 633. Here, the Order cannot withstand even the most minimal scrutiny because it is vastly over-inclusive, targeting both individuals and countries in a way that does not further the Order’s stated purpose of “protect[ing] the American people from terrorist attacks by foreign nationals admitted to the United States,” Order, Preamble. See Romer, 517 U.S. at 633 (law fails rational basis review where it is “at once too narrow and too broad”); id. at 635 (“The breadth of the [law] is so far removed from these particular justifications that we find it impossible to credit them.”).
Among other things, the Order imposes a blanket ban on entry into the United States by virtually all noncitizens from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. Order § 3(c) (suspending entry of “aliens from countries referred to in section 217(a)(12) of the INA,” with very limited exceptions). There is no evidence, however, to suggest that such an expansive and categorical exclusion bears any rational relationship to protecting Americans from terrorist attacks. As the Ninth Circuit has observed, “[t]he Government has
13

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 22 of 49 PageID #: 1870
pointed to no evidence that any alien from any of the countries named in the Order has
perpetrated a terrorist attack in the United States.” Washington, 2017 WL 526497, at *10.
Indeed, not a single American has been killed as a result of terrorist attacks on U.S. soil carried
out by individuals born in those countries since at least 1975. Alex Nowrasteh, Guide to Trump’s
Executive Order To Limit Migration for “National Security” Reasons, Cato Inst.: Cato at Liberty
(Jan. 26, 2017), https://www.cato.org/blog/guide-trumps-executive-order-limit-migration-
national-security-reasons; see id. (“[T]he countries that Trump chose to temporarily ban are not serious terrorism risks.”). Id.4 In fact, “[v]ery few attacks on U.S. soil since September 11, 2001
have been traced to foreign nationals at all.” Washington Response to Emergency Motion, Ex. A
¶ 4 (joint declaration of former Secretaries of State and national security officials (“National
Security Officials Joint Declaration”)), Washington v. Trump, No. 17-35105 (9th Cir. filed Feb.
6, 2017). In other words, the Order replaces our previous system, which subjected all applicants
to appropriate levels of scrutiny, with a broad and categorical ban—undergirded by religious-
based tests—that has no basis in the facts on the ground.
4 To be sure, a 2015 law and its implementing regulations provided that nationals of countries participating in the Visa Waiver Program, which “permits citizens of 38 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa,” U.S. Customs & Border Protection, Visa Waiver Program Improvement and Terrorist Travel Prevention Act Frequently Asked Questions, https://www.cbp.gov/travel/international-visitors/ visa-waiver-program/visa-waiver-program-improvement-and-terrorist-travel-prevention-act-faq (last visited Feb. 15, 2017), would no longer be admitted to the United States without a visa if they had traveled to the countries identified in the Order or were dual-nationals of those countries and were not subject to a specified exception, see Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, Pub. L. No. 114-113, Div. O, Title II, § 203 (2015); DHS Press Release, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016) (designating additional countries subject to the Act’s restrictions). In stark contrast with the Order here, however, that 2015 law did not categorically “bar [individuals subject to it from] travel[ling] to the United States,” Visa Waiver Program FAQ, supra; it simply prohibited such individuals from entering the country without a visa. That law thus provides no precedent for this Order’s draconian, nationality-based ban on admission. See Washington, 2017 WL 526497, at *10 n.7.
14

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 23 of 49 PageID #: 1871
Furthermore, because the Order denies entry based solely on a person’s nationality, it inexplicably sweeps in large categories of individuals who plainly pose no terrorist threat. See Romer, 517 U.S. at 633 (law fails rational basis review when “[i]t identifies persons by a single trait and then denies them protection across the board”). Infants and young children, for example, are barred under the Order’s terms. So, too, are noncitizens who have provided critical support to U.S. military efforts abroad, including Petitioner Hameed Khalid Darweesh, who served as an interpreter for the U.S. Army for over a year, and then worked in other capacities for the U.S. government and for U.S. government contractors. Pet. ¶ 19. Finally, the Order also denies entry to and subjects to other immigration-related restrictions (such as restricting visa renewal and the ability to travel) even individuals who have already been subject to careful vetting and who may already be in the United States, such as refugees—one of the most rigorously scrutinized groups—and certain nonimmigrant visa holders who have cleared consular screening.5
Finally, the evidence that the President intended to favor Christian (and not Muslim) refugees—rather than pursuing a neutral policy of aiding adherents of any persecuted religion— further demonstrates that the Order is motivated not by legitimate national security interests. Mere “fear, unsubstantiated by factors which are properly cognizable,” is not a “permissible” basis for treating one group differently from another. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985).
That the Order is not rationally related to any legitimate government interest is underscored by its counterproductive effects. Rather than enhancing our national security interests, the Order undermines them, threatening critical international relationships and
5 See, e.g., U.S. Refugee Admissions Program, U.S. Department of State, https://www.state.gov/j/prm/ra/admissions/ (last visited Feb. 15, 2017); Jim Endrizzi et al., Visas Mantis Security Advisory Opinions, NAFSA.com, https://www.nafsa.org/findresources/ Default.aspx?id=8645 (last visited Feb. 15, 2017).
15

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 24 of 49 PageID #: 1872
alienating those whose cooperation is acutely needed in the fight against violent extremism. Former Secretaries of State and other former officials who have devoted their careers to defending the nation have expressed concern that the Order “has alienated U.S. allies” and “will strain our relationships with partner countries . . . on whom we rely for vital counterterrorism cooperation.” National Security Officials Joint Declaration ¶ 5(b). Former Secretary of State Condoleezza Rice has publicly stated that the Order was “ill-considered.”6 Roughly 1,000 State Department diplomats have further predicted that the Order will “sour relations” with “much of the Muslim world,” thereby harming our ability to access the critical “intelligence and resources [we] need to fight the root causes of terror abroad, before an attack occurs within our borders.”7 The Order may also help fuel the dangerous narrative—advanced by ISIS and other terrorist groups—that the United States is engaged in a war against Islam. See National Security Officials Joint Declaration ¶ 3 (the Order “will aid ISIL’s propaganda effort and serve its recruitment message”).
The development of national security policy requires delicate judgments that take account of the often complicated intersection of myriad factors. Accordingly, when the Executive Branch formulates far-reaching national security policies, it generally engages in careful consideration and consultation with Congress and the relevant federal agencies. Here, however, federal
6 Carla Marinucci, Rice, Albright Criticize Trump’s Executive Order, Politico (Feb. 1, 2017), http://www.politico.com/states/california/story/2017/02/condi-rice-and-madeline-albrightdeliver-blistering-joint-rebuke-of-trump-immigration-policy-109285.
7 Dissent Channel: Alternatives to Closing Doors in Order to Secure Our Borders, at 2, Dissent Channel (2017) (“Dissent Channel”), https://assets.documentcloud.org/documents/ 3438487/Dissent-Memo.pdf; Elise Labott, Over 900 US career diplomats protest Trump order, CNN (Jan. 31, 2017), http://www.cnn.com/2017/01/30/politics/career-diplomats-dissent-memo; see also Department of State, 2 FAM 070 DISSENT CHANNEL (2011), https://fam.state.gov/ fam/02fam/02fam0070.html (explaining that the Dissent Channel enables Department of State officials to “express dissenting or alternative views on substantive issues of policy, in a manner which ensures serious, high-level review and response”).
16

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 25 of 49 PageID #: 1873
agencies with relevant expertise reportedly were not adequately consulted during the deliberations about, and drafting of, the Order. According to one report, “[t]he policy team at the White House developed the executive order . . . and largely avoided the traditional interagency process that would have allowed the Justice Department and homeland security agencies to provide operational guidance . . . .”8 As a result, Homeland Security Secretary John Kelly and Department of Homeland Security leadership did not see the “final details” until “shortly before the order was finalized.” Perez et al., supra; Shear & Nixon, supra (“the secretary of homeland security was on a White House conference call getting his first full briefing on the global shift in policy” as the President was signing it); id. (“the new secretary of defense[] did not see a final version of the order until . . . hours before” it was signed).
In sum, the Order, which was the product of insufficient consultation with the career professionals best positioned to determine how to protect the American people, does not bear any rational relationship to the Order’s purported interest in national security. It therefore cannot survive even the most deferential level of review.
B. By Discriminating On The Basis Of Nationality, The Order Also Runs Afoul Of The Immigration And Nationality Act.
The INA—consistent with the fundamental constitutional principles discussed above— limits the discretion of the Executive Branch, categorically prohibiting “discriminat[ion]” against prospective entrants in the issuance of immigrant visas based on their “nationality, place of birth,
8 Evan Perez et al., Inside the confusion of the Trump executive order and travel ban, CNN.com (Jan. 30, 2017), http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/; see Michael D. Shear & Ron Nixon, How Trump’s Rush To Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/2017/01/29/ us/politics/donald-trump-rush-immigration-order-chaos.html; Jonathan Allen & Brendan O’Brien, How Trump’s abrupt immigration ban sowed confusion at airports, agencies, Reuters.com (Jan. 29, 2017), http://www.reuters.com/article/us-usa-trump-immigrationconfusion-idUSKBN15D07S?il=0.
17

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 26 of 49 PageID #: 1874
or place of residence,” 8 U.S.C. § 1152(a)(1)(A). While the INA also provides the President with the power to suspend the entry of any “class of aliens,” 8 U.S.C. § 1182(f), that provision does not override the categorical prohibition on nationality-based discrimination. Indeed, no President has ever invoked the limited discretion granted by 8 U.S.C. § 1182(f) in an attempt to completely bar entry of all nationals of a particular country—much less, as here, millions of individuals from multiple countries. The Order runs headlong into the INA’s prohibition on discrimination.
1. The INA Categorically Prohibits Discrimination Based On, Among Other Things, Nationality, Place Of Birth, Or Place Of Residence.
The INA provides that, with certain exceptions not relevant here, “no 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). In adopting this prohibition, “Congress could hardly have chosen more explicit language,” “unambiguously direct[ing] that no nationality-based discrimination shall occur.” Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469, 473 (D.C. Cir. 1995) (“LAVAS”) (emphasis added), vacated on other grounds, 519 U.S. 1 (1996). The adoption of this 1965 provision was a sharp rebuke to what had come before: as one court has explained, “[f]or many years, the immigration laws explicitly discriminated against persons of various races and nationalities.” Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442, 453 (S.D. Fla. 1980), aff’d as modified, 676 F.2d 1023 (5th Cir. 1982). Congress’s 1965 amendment abandoned the prior “national quota system of immigration,” id., according to which “the selection of immigrants was based upon race and place of birth,” H.R. Rep. No. 89-745, at 8–10 (1965). By flatly “prohibiting discrimination in the granting of visas on the basis of ‘race, sex, nationality, place of birth, or place of residence,’” the 1965 amendments “manifested Congressional recognition that
18

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 27 of 49 PageID #: 1875
the maturing attitudes of our nation made discrimination on these bases improper.” Civiletti, 503 F. Supp. at 453 (quoting 8 U.S.C. § 1152(a)(1)(A)).
Numerous members of Congress decried the prior quota system as fundamentally unAmerican. As one put it, the system stood “in conflict with our principles of human brotherhood and equality,” and was contrary to “our basic American tradition.” Immigration: Hearings on S. 500 Before the Subcomm. on Immigration and Naturalization of the S. Comm. on the Judiciary, 89th Cong. 547 (1965) (statement of Sen. Maurine B. Neuberger); see Immigration: Hearings on H.R. 2580 Before the Subcomm. on Amending the Immigration and Nationality Act, and for other purposes of the H. Comm. on the Judiciary, 89th Cong. 418 (1965) (statement of Rep. Benjamin S. Rosenthal) (“For all too long, America’s immigration and naturalization laws have been in conflict with our national history and ideals.”); Immigration: Hearings on H.R. 7700 and 55 Identical Bills Before the Subcomm. on Amending the Immigration and Nationality Act, and for other purposes of the H. Comm. on the Judiciary, 88th Cong. 208 (1964) (statement of Rep. Harold Ryan) (“The United States must not support a doctrine of favoritism. We cannot preach the ideals of democracy, and, at the same time, judge the qualifications of men because of their race or national ancestry.”).
Similarly, when President Johnson signed the 1965 amendments to the INA, he recognized that the prior immigration system was “a cruel and enduring wrong in the conduct of the American Nation.” Lyndon B. Johnson, Remarks at the Signing of the Immigration Bill (Oct. 3, 1965). As he explained, such a system “violate[s] the basic principle of American democracy—the principle that values and rewards each man on the basis of his merit as a man.” Id. Testifying in support of the amendments, Attorney General Katzenbach likewise stated that the prior quota system not only “ought to be intolerable on principle alone,” but also “creat[ed]
19

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 28 of 49 PageID #: 1876
incalculable harm to our Nation and to our citizens.” Immigration: Hearings on H.R. 2580 Before the Subcomm. on Immigration and Nationality of H. Comm. on the Judiciary, 89th Cong. 2 (1965) (statement of Attorney General Nicholas Katzenbach). Among other things, it “prevented or delayed” “brilliant and skilled residents of other countries . . . from coming to this country,” thereby harming our “domestic self-interest” and “self-interest abroad.” Id. at 1. And it inflicted countless “cruelties,” including “requiring the separation of families.” Id. at 1, 3. “This is neither good government nor good sense.” Id. at 1 (quoting President Johnson).
Others who supported the abolition of the quota system recognized the practical reality that discrimination on the basis of nationality could put American lives at risk. Secretary of State Dean Rusk testified in support of the amendments that many countries “resent the fact that the quotas are there as a discriminatory measure.” Immigration: Hearings on H.R. 7700 and 55 and Identical Bills Before the Subcomm. No. 1 of the H. Comm. on the Judiciary, 88th Cong. 391 (1964) (statement of Secretary of State Dean Rusk).
Based on this testimony, Congress made the considered judgment that we are a nation built on immigration and that immigration of worthy individuals from all corners of the globe increases our domestic tranquility. In other words, “our system of freedom is superior to the rival system of fear.” Katzenbach Statement at 1. The 1965 ban on discrimination in immigrant visa issuance was thus designed to prohibit the Executive from practicing wholesale discrimination against people coming from certain countries.
Despite this clear prohibition in the INA, that is precisely what the Order here commands. It directs the “Suspension of Issuance of Visas . . . to Nationals of [the specified] Countries,” Order § 3(a), “suspend[s] entry into the United States” of such persons, id. § 3(c), and makes clear that any visas for such persons are “otherwise blocked,” id. § 3(g). Moreover, that is
20

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 29 of 49 PageID #: 1877
exactly how the Order has been implemented—at least until the courts enjoined its application pending further judicial review. Immediately upon issuance of the Order, government officials stopped issuing new visas to nationals of the seven targeted countries, and even undertook the wholesale revocation of visas already issued to those persons—which, by the Executive’s own count, affected as many as 60,000 individuals.9 By its plain terms and in its actual operation, the Order runs afoul of both the text and purpose of the INA’s nondiscrimination provision. Indeed, the Administration’s desired interpretation of the statute presumably would empower the President to restore the discriminatory quota system that Congress abolished. That cannot be within the Executive’s authority.
2. The Provision On Which The Order Relies Cannot Override The Act’s Explicit Prohibition On Discrimination.
As Judge Friendly explained shortly after passage of the 1965 amendments discussed above, even in the area of immigration, an executive officer’s “invidious discrimination against a particular race or group” is a classic “abuse of discretion,” and thus “impermissible.” Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966). Section 212(f) of the INA—which states that “[w]henever 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)—does not nullify that basic principle, nor does it override the more specific and later-enacted nondiscrimination mandate discussed above. While
9 See U.S. Department of State, Alert Feb. 4, 2017, “Important Announcement: Executive Order On Visas,” https://travel.state.gov/content/travel/en/news/important-announcement.html; Associated Press, State Dept: Fewer Than 60,000 Visas Canceled by Trump Order, N.Y. Times (Feb. 3, 2017), https://www.nytimes.com/aponline/2017/02/03/us/politics/ap-us-travel-ban-visasrevoked.html?_r=0.
21

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 30 of 49 PageID #: 1878
§ 212(f) undoubtedly grants the President broad discretion, the President “may not disregard
limitations that Congress has, in proper exercise of its own . . . powers, placed on his powers.”
Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23 (2006); see Zivotofsky v. Kerry, 135 S. Ct. 2076,
2090 (2015) (“[I]t is Congress that makes laws, and in countless ways its laws will and should
shape the Nation’s course. The Executive is not free from the ordinary controls and checks of
Congress merely because foreign affairs are at issue.”); Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 587 (1952) (“In the framework of our Constitution, the President’s power to see
that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”). Indeed,
reading § 212(f) to allow the sort of discrimination that the Order commands would render the
later nondiscrimination provision a dead letter. See LAVAS, 45 F.3d at 473 (“The appellees’
proffered statutory interpretation, leaving it fully possessed of all its constitutional power to make nationality-based distinctions, would render 8 U.S.C. § 1152(a) a virtual nullity.”).10
Significantly, to the extent Congress wanted to make exceptions to this categorical
nondiscrimination rule, it did so with specificity. For instance, 8 U.S.C. § 1152(a)(1)(A) provides
that the nondiscrimination provision should be applied “[e]xcept as specifically provided in . . .
10 The Order also conflicts with other aspects of the INA. That statute—which codifies our international treaty obligations concerning refugees, see 1967 Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967); 1951 Convention Relating to the Status of Refugees, opened for signature July 28,1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 (entered into force Apr. 22, 1954)—defines a refugee as a person “who is unable or unwilling to return to, and is unable or unwilling to avail . . . herself of the protection of” her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Notably, these overarching protections for refugees are neutral as to any particular religion or nationality; they do not contemplate that the United States will grant preferential treatment only to a single religion or nationality—or, conversely, disfavor a particular religion or nationality. At a given time and place, adherents of a particular religious faith may be targeted for persecution; in those circumstances, the INA protects them not because of their faith per se, but because their faith has given rise to persecution in their home country—which, in turn, entitles them to refugee status.
22

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 31 of 49 PageID #: 1879
sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title.” Those provisions, in turn, permit certain preferences for, among others, immediate relatives of U.S. citizens in specified circumstances, id. §§ 1151(b)(2)(A)(i), 1153. In carving out those express exceptions, Congress determined that the forms of “discrimination” permitted by those programs and preferences were acceptable. Similarly, in other provisions of the Code, Congress expressly carved out exceptions to the Visa Waiver Program, see id. § 1187(a)(12)(A); see also supra note 4, thereby requiring persons from certain countries (e.g., Iraq and Syria) to undergo more rigorous screening.11 Congress did not carve out a similar exception for § 212(f), and this Court lacks the power to rewrite the INA to create an exception that the statutory text does not contain.
Nor has § 212(f) ever been used to enact a categorical bar on entry to all aliens from a particular nation—much less millions of individuals from seven nations, like those covered by the Order here. Rather, as the current Administration has recognized, § 212(f) orders “arise from a foreign policy decision to keep certain elements in a given country from getting a visa.” U.S. Department of State, “Presidential Proclamations” (current as of February 14, 2017) (emphasis added), https://travel.state.gov/content/visas/en/fees/presidential-proclamations.html (last visited Feb. 14, 2017); archived version (as it appeared on February 6, 2017) available at https://perma.cc/M2RL-6775. The power may not be used to create a blanket exclusion order; setting aside the constitutional problems raised by any such order, it would run afoul of the nondiscrimination rule that Congress added to the INA in 1965—after § 212(f) was enacted. See supra at 18-20.
11 This provision includes an exception for persons present in Iraq or Syria “in order to perform military service in the armed forces of a program country” or “to carry out official duties as a full time employee of the government of a program country.” 8 U.S.C. § 1187(a)(12)(B). Here, however, the Order by its terms bars the entry of already extensively vetted foreign nationals, such as Mr. Darweesh, who have substantially assisted U.S. military efforts. See Pet. ¶¶ 4, 18-19.
23

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 32 of 49 PageID #: 1880
The § 212(f) proclamations that were in effect when President Trump took office are a case in point. Proclamation 5377—issued by President Reagan in 1985 and still in effect— suspends the entry of “officers or employees of the Government of Cuba or the Communist Party of Cuba” as nonimmigrants. 50 Fed. Reg. 41329 (1985). Similarly, a 2006 Proclamation suspended the entry of “Persons Responsible for Policies or Actions That Threaten the Transition to Democracy in Belarus.” 71 Fed. Reg. 28541 (2006). These uses of § 212(f), and others like them, are consistent with the INA’s nondiscrimination provision because they apply to classes of aliens not defined purely by their “nationality, place of birth, or place of residence.” The Executive did not stray from this targeted use of § 212(f) even in the wake of the devastating attacks of September 11, 2001.12
Even the 1986 Proclamation by President Reagan concerning Cuban nationals—which the federal government has cited in defending the Order, see Gov’t 9th Circuit Stay Mot. at 4 (citing Pres. Proc. 5517, 51 Fed. Reg. 30470 (1986))—was not an attempt to invoke § 212(f) in order to discriminate on the basis of nationality. Rather, according to official statements issued at the time, that Proclamation was adopted “to tighten enforcement of the [Cuban] embargo” by denying to Cuban nationals the ability to move money and goods into the United States and to come to the United States via third countries. See Gerald M. Boyd, Reagan Acts To Tighten Trade Embargo of Cuba, N.Y. Times (Aug. 23, 1986), http://www.nytimes.com/1986/08/23/ world/reagan-acts-to-tighten-trade-embargo-of-cuba.html. Because it was intended to be an adjunct to the enforcement of the embargo—and not an outright ban on the entry of Cubans—the Proclamation permitted Cuban citizens to enter the United States as nonimmigrants, to the extent permissible, or as immigrants if they were immediate relatives of U.S. citizens, were entitled to
12 See Kate M. Manuel, Cong. Research Serv., Executive Authority to Exclude Aliens: In Brief 6-10 & tbl. 1 (Jan. 23, 2017), https://fas.org/sgp/crs/homesec/R44743.pdf.
24

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 33 of 49 PageID #: 1881
other special immigrant status, or met other criteria. 51 Fed. Reg. 30470 (1986). By contrast, the Order here is unprecedented because it indiscriminately sweeps in virtually everyone “from” seven separate nations and denies them entry no matter their status.
Finally, other efforts to square the Order with the statutory prohibition on discrimination likewise fail. For example, 8 U.S.C. § 1152(a)(1)(B), which states that nothing in the nondiscrimination provision “shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed,” is not to the contrary. That provision simply allows otherwise neutral and nondiscriminatory procedures for processing visas, and may not be read in a way that “would render 8 U.S.C. § 1152(a) a virtual nullity,” LAVAS, 45 F.3d at 473.
* * * The Order violates both fundamental constitutional norms and the INA. Fortunately, national security and protection of our most deeply cherished liberties are not a zero-sum game. This Court should hold unlawful the ill-conceived Executive Order, allowing the President— after proper consultation with Congress, law enforcement, and national security officials—to protect the nation’s security in ways that comply with the Constitution and our nation’s laws.
CONCLUSION The Court should grant the injunctive relief requested by petitioners and intervenorplaintiff.
25

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 34 of 49 PageID #: 1882

Respectfully submitted,

/s/ David H. Gans
Elizabeth B. Wydra Brianne J. Gorod David H. Gans CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, NW, Suite 501 Washington, D.C. 20036 Tel.: (202) 296-6889 elizabeth@theusconstitution.org brianne@theusconstitution.org david@theusconstition.org
Raymond H. Brescia Associate Professor of Law* Albany Law School 80 New Scotland Avenue Albany, New York 12208 Tel.: (518) 445-3247 rbres@albanylaw.edu *For affiliation purposes only13

/s/ Peter Karanjia
Peter Karanjia Jason Harrow DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue, NW, Suite 800 Washington, D.C. 20006 Tel.: (202) 973-4200 Fax: (202) 973-4499 peterkaranjia@dwt.com jasonharrow@dwt.com
Victor A. Kovner DAVIS WRIGHT TREMAINE LLP 1251 Avenue of the Americas, 21st Floor New York, New York 10020 Tel.: (212) 489-8230 Fax: (212) 489-8340 victorkovner@dwt.com14

13 Counsel for amici are grateful for the valuable contributions to this brief of Professor Brescia’s students: Andrew Carpenter, Elyssa Klein, Mary Ann Krisa, Martha Mahoney, Graham Molho, and Gloria Sprague.
14 Amici certify that (a) no party’s counsel authored any part of this brief, (b) no party or party’s counsel contributed money that was intended to fund the preparation or submission of this brief, and (c) no person other than Amici or their counsel contributed money that was intended to fund the preparation or submission of this brief. All counsel represent Members of the House of Representatives listed in the Appendix. The Constitutional Accountability Center and Professor Brescia additionally represent Members of the Senate listed in the Appendix.
26

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 35 of 49 PageID #: 1883

U.S. Senate

APPENDIX: LIST OF AMICI MEMBERS OF CONGRESS

Dianne Feinstein, Senator of California

Patrick J. Leahy, Senator of Vermont

Richard J. Durbin, Senator of Illinois

Sheldon Whitehouse, Senator of Rhode Island

Amy Klobuchar, Senator of Minnesota

Al Franken, Senator of Minnesota

Christopher A. Coons, Senator of Delaware

Richard Blumenthal, Senator of Connecticut

Mazie K. Hirono, Senator of Hawaii

Tammy Baldwin, Senator of Wisconsin

Michael F. Bennet, Senator of Colorado

Cory A. Booker, Senator of New Jersey

1A

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 36 of 49 PageID #: 1884
LIST OF AMICI – cont’d
Sherrod Brown, Senator of Ohio
Thomas R. Carper, Senator of Delaware
Tammy Duckworth, Senator of Illinois
Kirsten E. Gillibrand, Senator of New York
Kamala D. Harris, Senator of California
Edward J. Markey, Senator of Massachusetts
Robert Menendez, Senator of New Jersey
Jeff Merkley, Senator of Oregon
Jack Reed, Senator of Rhode Island
Bernard Sanders, Senator of Vermont
Brian Schatz, Senator of Hawaii
Jeanne Shaheen, Senator of New Hampshire
Chris Van Hollen, Senator of Maryland
2A

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 37 of 49 PageID #: 1885

Elizabeth Warren, Senator of Massachusetts
Ron Wyden, Senator of Oregon

LIST OF AMICI – cont’d

U.S. House of Representatives
John Conyers, Jr., Representative of Michigan
Jerrold Nadler, Representative of New York
Zoe Lofgren, Representative of California
Sheila Jackson Lee, Representative of Texas
Steve Cohen, Representative of Tennessee
Henry C. “Hank” Johnson, Representative of Georgia
Theodore E. Deutch, Representative of Florida
Luis V. Gutierrez, Representative of Illinois
Karen Bass, Representative of California
Cedric L. Richmond, Representative of Louisiana
3A

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 38 of 49 PageID #: 1886
LIST OF AMICI – cont’d Hakeem Jeffries,
Representative of New York
David N. Cicilline, Representative of Rhode Island
Eric Swalwell, Representative of California
Ted W. Lieu, Representative of California
Jamie Raskin, Representative of Maryland
Pramila Jayapal, Representative of Washington
Brad Schneider, Representative of Illinois
Alma S. Adams, Representative of North Carolina
Nanette Barragán, Representative of California
Ami Bera, Representative of California
Donald S. Beyer, Jr., Representative of Virginia
Sanford D. Bishop, Representative of Georgia
4A

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 39 of 49 PageID #: 1887
LIST OF AMICI – cont’d
Earl Blumenauer, Representative of Oregon
Suzanne Bonamici, Representative of Oregon
Brendan F. Boyle, Representative of Pennsylvania
Robert A. Brady, Representative of Pennsylvania
Julia Brownley, Representative of California
G.K. Butterfield, Representative of North Carolina
Michael Capuano, Representative of Massachusetts
Salud Carbajal, Representative of California
Tony Cárdenas, Representative of California
André Carson, Representative of Indiana
Kathy Castor, Representative of Florida
Joaquin Castro, Representative of Texas
Judy Chu, Representative of California
5A

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 40 of 49 PageID #: 1888
LIST OF AMICI – cont’d
Katherine M. Clark, Representative of Massachusetts
Yvette Clarke, Representative of New York
W.M. Lacy Clay, Representative of Missouri
Jim Cooper, Representative of Tennessee
J. Luis Correa, Representative of California
Joseph Crowley, Representative of New York
Elijah E. Cummings, Representative of Maryland
Danny K. Davis, Representative of Illinois
Susan Davis, Representative of California
Diana L. DeGette, Representative of Colorado
Valdez Butler Demings, Representative of Florida
Rosa L. DeLauro, Representative of Connecticut
Suzan K. DelBene, Representative of Washington
6A

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 41 of 49 PageID #: 1889
LIST OF AMICI – cont’d
Mark DeSaulnier, Representative of California
Debbie Dingell, Representative of Michigan
Lloyd Doggett, Representative of Texas
Keith Ellison, Representative of Minnesota
Eliot Engel, Representative of New York
Anna Eshoo, Representative of California
Adriano Espaillat, Representative of New York
Elizabeth Etsy, Representative of Connecticut
Bill Foster, Representative of Illinois
Lois Frankel, Representative of Florida
Marcia Fudge, Representative of Ohio
Tulsi Gabbard, Representative of Hawaii
Ruben Gallego, Representative of Arizona
7A

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 42 of 49 PageID #: 1890
LIST OF AMICI – cont’d
Vicente González, Representative of Texas
Al Green, Representative of Texas
Gene Green, Representative of Texas
Raúl Grijalva, Representative of Arizona
Colleen Hanabusa, Representative of Hawaii
Alcee L. Hastings, Representative of Florida
Brian Higgins, Representative of New York
Steny H. Hoyer, Representative of Maryland
Jared Huffman, Representative of California
Eddie Bernice Johnson, Representative of Texas
William R. Keating, Representative of Massachusetts
Robin L. Kelly, Representative of Illinois
Joseph P. Kennedy, III, Representative of Massachusetts
8A

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 43 of 49 PageID #: 1891
LIST OF AMICI – cont’d
Ro Khanna, Representative of California
Ruben Kihuen, Representative of Nevada
Ron Kind, Representative of Wisconsin
Brenda L. Lawrence, Representative of Michigan
Barbara Lee, Representative of California
Sander Levin, Representative of Michigan
John Lewis, Representative of Georgia
Alan Lowenthal, Representative of California
Nita Lowey, Representative of New York
Ben Ray Luján, Representative of New Mexico
Michelle Lujan Grisham, Representative of New Mexico
Stephen F. Lynch, Representative of Massachusetts
Carolyn B. Maloney, Representative of New York
9A

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 44 of 49 PageID #: 1892
LIST OF AMICI – cont’d
Doris Matsui, Representative of California
Betty McCollum, Representative of Minnesota
James P. McGovern, Representative of Massachusetts
Grace Meng, Representative of New York
Gwen Moore, Representative of Wisconsin
Grace F. Napolitano, Representative of California
Richard M. Nolan, Representative of Minnesota
Donald Norcross, Representative of New Jersey
Eleanor Holmes Norton, Representative of District of Columbia
Beto O’Rourke, Representative of Texas
Jimmy Panetta, Representative of California
Bill Pascrell, Jr., Representative of New Jersey
Donald M. Payne, Jr., Representative of New Jersey
10A

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 45 of 49 PageID #: 1893
LIST OF AMICI – cont’d
Nancy Pelosi, Representative of California
Ed Perlmutter, Representative of Colorado
Scott H. Peters, Representative of California
Chellie Pingree, Representative of Maine
Mark Pocan, Representative of Wisconsin
Jared Polis, Representative of Colorado
David Price, Representative of North Carolina
Mike Quigley, Representative of Illinois
Kathleen M. Rice, Representative of New York
Lucille Roybal-Allard, Representative of California
Bobby L. Rush, Representative of Illinois
Gregorio Kilili Camacho Sablan, Representative of Northern Mariana Islands
Linda T. Sánchez, Representative of California
11A

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 46 of 49 PageID #: 1894
LIST OF AMICI – cont’d
John P. Sarbanes, Representative of Maryland
Janice D. Schakowsky, Representative of Illinois
Adam B. Schiff, Representative of California
Robert C. “Bobby” Scott, Representative of Virginia
José E. Serrano, Representative of New York
Carol Shea-Porter, Representative of New Hampshire
Brad Sherman, Representative of California
Albio Sires, Representative of New Jersey
Louise Slaughter, Representative of New York
Adam Smith, Representative of Washington
Darren Soto, Representative of Florida
Jackie Speier, Representative of California
Mark Takano, Representative of California
12A

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 47 of 49 PageID #: 1895
LIST OF AMICI – cont’d
Bennie Thompson, Representative of Mississippi
Mike Thompson, Representative of California
Dina Titus, Representative of Nevada
Paul D. Tonko, Representative of New York
Norma Torres, Representative of California
Juan Vargas, Representative of California
Marc Veasey, Representative of Texas
Filemon Vela, Jr., Representative of Texas
Nydia Velázquez, Representative of New York
Debbie Wasserman Schultz, Representative of Florida
Bonnie Watson Coleman, Representative of New Jersey
Peter Welch, Representative of Vermont
Frederica S. Wilson, Representative of Florida
13A

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 48 of 49 PageID #: 1896 LIST OF AMICI – cont’d
John Yarmuth, Representative of Kentucky
14A

Case 1:17-cv-00480-CBA Document 147 Filed 02/16/17 Page 49 of 49 PageID #: 1897

CERTIFICATE OF SERVICE I hereby certify that on February 16, 2017, I caused to be electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record in this proceeding.

Dated: Washington, D.C. February 16, 2017

DAVIS WRIGHT TREMAINE LLP
By: s/ Peter Karanjia Peter Karanjia
1919 Pennsylvania Avenue, N.W., Suite 800 Washington, D.C. 20006 Tel: (202) 973-4200 Fax: (202) 973-4499 Email: peterkaranjia@dwt.com

 </s> Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 1 of 28 PageID #: 1913

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

-HAMEED KHALID DARWEESH, et al., on

behalf of themselves and others similarly

:

situated,

:

Petitioners,

:

v.

:

DONALD TRUMP, President of the United

States, et al.,

:

No. 17-cv-00480 (CBA) ECF CASE Electronically Filed

Respondents. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x -
BRIEF FOR AMICUS CURIAE HARVARD IMMIGRATION AND REFUGEE CLINICAL PROGRAM IN SUPPORT OF PETITIONERS

Philip L. Torrey* Sabrineh Ardalan Deborah Anker* Nancy Kelly* John Willshire Carrera* Maggie Morgan*
HARVARD IMMIGRATION AND REFUGEE CLINICAL PROGRAM 3085 Wasserstein Hall (WCC) 6 Everett Street Cambridge, Massachusetts 02138 Phone: (617) 384-8165 ptorrey@law.harvard.edu

Boris Bershteyn Lauren E. Aguiar Tansy Woan Breanna E. Fields* Naomi S. Solomon Collin A. Rose* Jacob G. Lefkowitz* Davida McGhee* Brandon W. Bailey*
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Four Times Square New York, New York 10036 Phone: (212) 735-3834 Fax: (917) 777-3834 boris.bershteyn@skadden.com
Counsel for Amicus Curiae

* Not admitted to practice in this jurisdiction.

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 2 of 28 PageID #: 1914
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ..................................................................................................... iii IDENTITY AND INTEREST OF AMICUS CURIAE.................................................................1 PRELIMINARY STATEMENT ..................................................................................................1 ARGUMENT .............................................................................................................................. 5 I. SECTION 212(f) OF THE INA DOES NOT AUTHORIZE THE PRESIDENT
TO SUSPEND ENTRY ON THE BASIS OF RELIGION AND NATIONAL ORIGIN, OR DEPRIVE INDIVIDUALS OF PROTECTED INTERESTS WITHOUT DUE PROCESS............................................................................................5 A. The Constitutional Avoidance Canon of Statutory Construction ...........................5 B. The Executive Order’s Interpretation of Section 212(f) Raises Significant
Constitutional Questions ......................................................................................7 C. To Avoid Constitutional Questions, This Court Should Interpret Section
212(f) Consistent With Its Historic Application ..................................................10 II. THE PRESIDENT’S AUTHORITY UNDER SECTION 212(f) IS
CIRCUMSCRIBED BY OTHER PROVISIONS OF THE INA .....................................13 A. The Non-Discrimination Provision of the INA Forecloses the Executive
Order .................................................................................................................13 B. The Executive Order’s Exercise of Authority Under Section 212(f)
Impermissibly Conflicts with Sections 208 and 241 of the INA, As Well As Section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA)...................................................................................................15 1. The Executive Order Conflicts With Section 208 ....................................15 2. The Executive Order Conflicts With Section 241 ....................................17 3. The Executive Order Conflicts With Section 2242 of FARRA ................18 4. Section 212(f) of the INA Should Not be Read as Overriding
Sections 208 and 241 of INA, or Section 2242 of FARRA ......................19 CONCLUSION ......................................................................................................................... 21
ii

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 3 of 28 PageID #: 1915
TABLE OF AUTHORITIES
CASES
Page(s)
Andrus v. Glover Const. Co., 446 U.S. 608 (1980) ......................................................................................................14
Aziz v. Trump, No. 117-CV-116LMBTCB, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) ....................... 2, 9
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ........................................................................................................8
City of New Orleans v. Dukes, 427 U.S. 297 (1976) ........................................................................................................8
Clark v. Jeter, 486 U.S. 456 (1988) ........................................................................................................9
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Building & Construction Trades Council, 485 U.S. 568 (1988) .................................................................................................... 5, 6
Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957) ................................................................................................ 14, 20
Hillman v. Maretta, 133 S. Ct. 1943 (2013)...................................................................................................14
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987) ......................................................................................................16
I.N.S. v. St. Cyr, 533 U.S. 289 (2001) ........................................................................................................6
I.N.S. v. Stevic, 467 U.S. 407 (1984) ................................................................................................ 16, 17
Jama v. Immigration & Customs Enf't, 543 U.S. 335 (2005) ........................................................................................................4
Jean v. Nelson, 472 U.S. 846 (1985) ........................................................................................................6
Kent v. Dulles, 357 U.S. 116 (1958).......................................................................................................10
iii

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 4 of 28 PageID #: 1916
Landon v. Plasencia, 459 U.S. 21 (1982) ........................................................................................................10
Larson v. Valente, 456 U.S. 228 (1982) .................................................................................................... 7, 8
NLRB v. Catholic Bishop of Chi., 440 U.S. 490 (1979) ........................................................................................................5
Olsen v. Albright, 990 F.Supp. 31 (D.D.C. 1997)........................................................................................13
Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994) ...........................................................................................18
Puello v. Bureau of Citizenship & Immigration Services, 511 F.3d 324 (2d Cir. 2007) ...........................................................................................13
Richards v. United States, 369 U.S. 1 (1962) .................................................................................................... 15, 20
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) ........................................................................................................9
Washington v. Trump, No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 9, 2017) ......................................... passim
Zadvydas v. Davis, 533 U.S. 678 (2001) .............................................................................................. 6, 7, 10
STATUTES 6 U.S.C. § 251 (2012) .................................................................................................................4 6 U.S.C. § 252 (2012) .................................................................................................................4 8 U.S.C. § 1101................................................................................................................... 13, 16 8 U.S.C. § 1151.........................................................................................................................13 8 U.S.C. § 1152................................................................................................................. 2, 3, 13 8 U.S.C. § 1158.................................................................................................................. passim 8 U.S.C. § 1182.................................................................................................................. passim 8 U.S.C. § 1231.................................................................................................................. passim Pub. L. No. 82-414, 66 Stat. 163 ...............................................................................................18
iv

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 5 of 28 PageID #: 1917
Pub. L. No. 89-236, 79 Stat. 911................................................................................................13 Pub. L. No. 96-212, 94 Stat. 102 ......................................................................................... 16, 18 Pub. L. No. 105-277, 112 Stat. 2681...................................................................................... 4, 19 Pub. L. No. 107-296, 116 Stat. 2192............................................................................................4
REGULATIONS 8 C.F.R. § 208.30 (2016) ............................................................................................... 17, 19, 20 8 C.F.R. §§ 208.5(a), 1208.5(a) (2016) ......................................................................................17 8 C.F.R. §§ 235.3(b), 1235.3(b) (2016)............................................................................... passim
EXECUTIVE ORDERS AND PROCLAMATIONS EO 13606, 77 Fed. Reg. 24571 (Apr. 24, 2012) ......................................................................... 11 EO 13608, 77 Fed. Reg. 26409 (May 1, 2012)...........................................................................12 EO 13687, 80 Fed. Reg. 819 (Jan. 2, 2015) ...............................................................................12 EO 13769, 82 Fed. Reg. 8977 (Feb. 1, 2017)...................................................................... passim Proclamation 5377, 50 Fed. Reg. 41329 (Oct. 10, 1985)............................................................ 11 Proclamation 6574, 58 Fed. Reg. 34209 (June 21, 1993) ...........................................................12 Proclamation 6958, 61 Fed. Reg. 60007 (Nov. 26, 1996)........................................................... 11 Proclamation 7062, 63 Fed. Reg. 2871 (Jan. 16, 1998) .............................................................. 11 Proclamation 8015, 71 Fed. Reg. 28541 (May 12, 2006) ...........................................................12 Proclamation 8693, 76 Fed. Reg. 44751 (July 27, 2011) ............................................................12 Proclamation 8697, 76 Fed. Reg. 49277 (Aug. 5, 2011).............................................................12
v

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 6 of 28 PageID #: 1918
OTHER AUTHORITIES Deborah Anker, Discretionary Asylum: A Protection Remedy for Refugees Under the
Refugee Act of 1980, 28 Va. J. Int’l L. 1 (1987)..............................................................16 Foreign Affairs Manual, U.S. Dep’t of State,
9 FAM 302.14 ............................................................................................................... 11 Kate M. Manuel, Cong. Research Serv., R44743, Executive Authority to Exclude Aliens:
In Brief 1, 6-10 (Jan. 23, 2017) ............................................................................... passim Protocol Relating to the States of Refugees,
19 U.S.T. 6223, 6259-6276, T.I.A.S. No. 6577 (1968) ............................................. 16, 17 Sen. Edward M. Kennedy of the S. Comm. on the Judiciary, Report: Amending the
Immigration and Nationality Act, and for Other Purposes, accompanying H.R. 2580 (1965) ...................................................................................................................13 United Nations Convention Relating to Status of Refugees, 189 U.N.T.S. 150 (1954)................................................................................................17
vi

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 7 of 28 PageID #: 1919
IDENTITY AND INTEREST OF AMICUS CURIAE The Harvard Immigration and Refugee Clinical Program (“HIRC”) is a clinical program at Harvard Law School that is dedicated to the representation of individuals applying for U.S. asylum and related protections, as well as the representation of individuals who have survived domestic violence and other crimes and are seeking avoidance of forced removal in immigration proceedings. HIRC was founded in 1984 by Clinical Professor Deborah Anker. Among its clients are victims of human rights abuses applying for U.S. refugee protection from all over the world, including from the countries referenced in the President’s January 27, 2017 Executive Order at issue in this litigation. See Exec. Order 13769, Protecting the Nation from Foreign Terrorist Entry into the United States, 82 Fed. Reg. 8977 (the “Executive Order” or “EO”). Accordingly, HIRC and its clients have a direct interest in the outcome of this action and respectfully submit this brief in support of Petitioners.
PRELIMINARY STATEMENT On January 27, 2017, the President signed a wide-ranging Executive Order that prohibited travelers from seven countries from entering the United States for 90 days; suspended the U.S. Refugee Admissions Program for 120 days; indefinitely suspended admission of Syrian refugees; and indicated that “additional countries” may be “recommended for similar treatment.” President Trump signed the Executive Order only seven days after taking office, apparently after very limited assessment of the practical challenges posed by the most far-reaching immigration ban ever enacted by executive action. The Executive Order purported to derive its authority solely from an act of Congress: Section 212(f) of the Immigration and Nationality Act (“INA”), which permits the President to “suspend the entry of all aliens or any class of aliens” upon a finding that “the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 8 of 28 PageID #: 1920
States.” 8 U.S.C. § 1182(f). But Section 212(f) does not grant the President the far-reaching authority the Executive
Order endeavors to exercise. For example, the INA expressly forbids discrimination based on national origin in processing immigrant visa applications—hence necessarily foreclosing that same type of discrimination at the border. See 8 U.S.C. § 1152(a)(1)(A). The INA and international treaty obligations likewise guarantee immigrants who reach the U.S. border protection against return to a country where they fear persecution or torture—a right the Executive Order denies. See 8 U.S.C. § 1158(a)(1). And, perhaps most fundamentally, the Executive Order relies on a reading of Section 212(f) that is so broad as to raise serious constitutional concerns, as multiple courts have now held. See Washington v. Trump, No. 1735105, 2017 WL 526497, at *10 (9th Cir. Feb. 9, 2017) (per curiam); Aziz v. Trump, No. 117CV-116LMBTCB, 2017 WL 580855, at *8 (E.D. Va. Feb. 13, 2017). Under the constitutional avoidance doctrine, Section 212(f) should not be interpreted in a way that would raise the prospects of constitutional violations. In short, Section 212(f) is not a blank check, and the Executive Order far exceeds its bounds.
This Court can enjoin the Executive Order as a matter of statutory construction for at least the following reasons:
First, the Executive Order’s interpretation of Section 212(f) risks bringing that statutory provision in conflict with the First Amendment’s Establishment Clause and the Fifth Amendment’s Equal Protection and Due Process Clauses. The text of the Executive Order evidences an unlawful intent to discriminate against Muslims and to disfavor the religion of Islam. The Administration’s contemporaneous public statements and other contextual indicia further reinforce that the Executive Order was signed with unconstitutional discriminatory
2

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 9 of 28 PageID #: 1921
purpose. The text of the Executive Order also raises constitutional questions by depriving lawful permanent residents and other visa holders of the right to travel abroad and re-enter the country without any notice or opportunity to respond. Consistent with the canon that statutes should be construed to avoid constitutional questions, this Court should not interpret Section 212(f) to authorize the Executive Order.
Second, the Executive Order would exercise the general power authorized by Section 212(f) in a way that conflicts with other provisions of the INA that specifically circumscribe the President’s power, including Sections 202(a), 208, and 241.
Section 202(a) expressly prohibits discrimination on the basis of nationality and place of birth in the issuance of immigrant visas. 8 U.S.C. § 1152(a)(1)(A). The Executive Order violates this prohibition because it bars entry of individuals with valid immigrant visas and nonimmigrant visas from seven countries and provides that the President may indefinitely bar entry of individuals from other countries. EO § 3(c), (e)-(f).
Section 208 addresses the authority, conditions, and procedures of asylum applications, specifically allowing that any alien who is “physically present in the United States or who arrives in the United States . . . irrespective of such alien’s status, may apply for asylum.” 8 U.S.C. § 1158(a). It also enumerates specific circumstances when an applicant is barred from asylum, such as when an individual is determined to be a foreign terrorist. Id. The Executive Order conflicts with the plain language of Section 208 because it suspends the entry of nonimmigrants and immigrants into the United States from certain countries despite their physical presence within the United States—and thus attempts to foreclose access to the asylum application process for those individuals.
Section 241, in turn, prohibits the Secretary of Homeland Security from removing a
3

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 10 of 28 PageID #: 1922
foreign national to a country if the Secretary “decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.”1 8 U.S.C. § 1231(b)(3)(A). Applying the Executive Order in a manner that conflicts with Section 241 would violate the United States’ mandatory nonrefoulement obligations under domestic and international law, putting individuals at risk of being returned to countries where their lives or freedom are at risk.
Lastly, the Executive Order’s exercise of the general authority under Section 212(f) conflicts with Section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), which also circumscribes the President’s power. Section 2242 provides that “[i]t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.” Pub. L. No. 105-277, § 2242(a), 112 Stat. 2681-822 (1998) (reprinted in 8 U.S.C. § 1231, note (2012)). Application of the Executive Order to require that an individual return to a country where he or she faces the risk of torture would violate Section 2242 of FARRA. Well-established canons of statutory construction require that the specific terms of Section 2242 of FARRA be read as constraining the more general authority under Section 212(f).
1 Although Section 241 refers to the Attorney General, on March 1, 2003, the Department of Homeland Security assumed responsibility for removal programs. Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441(2), 442(a), 116 Stat. 2192–2194; see also 6 U.S.C. §§ 251(2), 252(a) (2012). The Supreme Court has interpreted this as transferring the Attorney General's discretion in Section 241 to the Secretary of Homeland Security. Jama v. Immigration & Customs Enf't, 543 U.S. 335, 338 n.1 (2005) (“Accordingly, the discretion formerly vested in the Attorney General [in Section 241(b)(2)] is now vested in the Secretary of Homeland Security.”). As such, while the Attorney General is referenced in Section 241, it is now the Secretary of Homeland Security who is the relevant actor for the purposes of Section 241.
4

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 11 of 28 PageID #: 1923
ARGUMENT I. SECTION 212(f) OF THE INA DOES NOT AUTHORIZE THE PRESIDENT TO
SUSPEND ENTRY ON THE BASIS OF RELIGION AND NATIONAL ORIGIN, OR DEPRIVE INDIVIDUALS OF PROTECTED INTERESTS WITHOUT DUE PROCESS The Executive Order exceeds the authority of Section 212(f) of the INA by applying it in a manner that discriminates on the basis of religion and national origin and deprives individuals of protected interests without due process. Section 212(f) permits the President to “suspend the entry of all aliens or any class of aliens,” but only upon a finding 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.” 8 U.S.C. § 1182(f). The Executive Order has invoked Section 212(f)—for the first time since its enactment—to discriminate broadly on the basis of religion and national origin, and restrict travel and re-entry rights of lawful permanent residents, immigrant visa holders, and nonimmigrant visa holders from seven different countries without any notice or opportunity to respond. Whether the statute permits a “class of aliens” to be defined and treated in this manner raises significant questions under the Establishment Clause of the First Amendment, and the Equal Protection Clause and Due Process Clause of the Fifth Amendment. It is well established that courts must construe statutes to avoid conflicts with the Constitution—and therefore should not interpret Section 212(f) to authorize the President to define a “class of aliens” by reference to religion or national origin. A. The Constitutional Avoidance Canon of Statutory Construction Courts must construe statutes to avoid interpretations that “would raise serious constitutional problems.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). When confronted with statutory ambiguity, a court must choose the interpretation that avoids this type of problem. NLRB v. Catholic Bishop of Chi., 440
5

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 12 of 28 PageID #: 1924
U.S. 490, 509 & n.1 (1979). Firmly rooted in the separation of powers and institutional comity jurisprudence of the Supreme Court, this “avoidance canon” has achieved “cardinal principle” status and “is beyond debate.” Edward J. DeBartolo Corp., 485 U.S. at 575.
The Supreme Court has long applied constitutional avoidance principles to immigration statutes. For example, in the context of immigrant detention, the Court has imposed a “reasonable time” limitation on the Attorney General’s discretion to detain removable foreign nationals based on a conclusion that “[a] statute permitting indefinite detention of an alien would raise a serious constitutional problem.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). Similarly, in the context of habeas corpus review for “deportable aliens,” the Court has avoided constructions of INA amendments that would withdraw judicial review of habeas corpus on the grounds that such interpretations would raise serious constitutional questions under the Suspension Clause. INS v. St. Cyr, 533 U.S. 289, 304-05 (2001).
The same principles counsel against statutory constructions that may conflict with constitutional protections against discrimination, as the Supreme Court held in Jean v. Nelson, 472 U.S. 846 (1985). Jean concerned a challenge to the Attorney General’s use of his authority under Section 212(d)(5)(A) of the INA to grant parole to undocumented immigrants “in his discretion.” Id. at 848. The plaintiffs, a class of Haitian refugees, claimed that denials of parole on the basis of their race and national origin violated their equal protection rights. Id. at 849. Reversing the Eleventh Circuit, the Supreme Court held that the statute and accompanying regulations should have been interpreted to provide “nondiscriminatory parole consideration,” thus obviating constitutional questions. Id. at 855-56.
Consistent with the constitutional avoidance canon of statutory construction—and its consistent application in the field of the immigration law—this Court should avoid an
6

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 13 of 28 PageID #: 1925
interpretation of “class of aliens” that purports to authorize the President to discriminate on the basis of religion or national origin.
B. The Executive Order’s Interpretation of Section 212(f) Raises Significant Constitutional Questions
The text and context of the Executive Order raise, at a minimum, significant questions under the Establishment, Equal Protection, and Due Process Clauses. See Washington v. Trump, 2017 WL 526497, at *10 (“The States’ claims [challenging the Executive Order on these grounds] raise serious allegations and present significant constitutional questions.”).
First, the text of the Executive Order indicates that the likely purpose and effect of its definition of “any class of aliens” is to discriminate on the basis of religion. Section 3(c) of the Executive Order suspends entry of individuals from seven majority-Muslim countries on the premise that their entry would be detrimental to the interests of the United States. EO § 3(c). At the same time, Section 5(b) of the Executive Order (issued pursuant to Section 207 of the INA) prioritizes refugee claims for individuals claiming “religious-based persecution,” but only if “the religion of the individual is a minority religion in the individual’s country of nationality.”2 EO § 5(b). Read together, these two provisions have the effect of discriminating against Muslims and disfavoring the religion of Islam.
It is an understatement to say that the Executive Order’s likely purpose and effect of discriminating against Muslims raises significant constitutional questions under the Establishment and Equal Protection Clauses. See, e.g., Zadvydas, 533 U.S. at 693 (“[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”); Larson v. Valente, 456 U.S. 228,
2 No such requirement concerning preference given to minority religions is reflected in either domestic refugee law or international refugee law.
7

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 14 of 28 PageID #: 1926
244 (1982) (under the Establishment Clause, “one religious denomination cannot be officially
preferred over another”); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (under the
Equal Protection Clause, classifications based on religion are inherently suspect and subject to
strict scrutiny).
Moreover, public statements from the Trump Administration further demonstrate that the
Executive Order was intended to serve as a “Muslim ban.” As early as December 2015,
candidate Trump called for a “total and complete shutdown of Muslims entering the United States,”3 a promise he reiterated in June, July, and August of 2016.4 Since then, the President’s
advisors have suggested that they were instructed to draft an order that would “legally”
accomplish that purpose: Rudy Giuliani, former Mayor of New York City and advisor to the
President, told reporters that “when [President Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”5
Such statements by candidate, and then President, Trump are direct and compelling
evidence of discriminatory intent and may be properly considered in evaluating the constitutional basis of the Executive Order.6 Washington v. Trump, 2017 WL 526497, at *10 (“It is well
3 Donald J. Trump, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration.
4 Uri Friedman, Six Answers to the Question Behind Donald Trump’s Immigration Ban, THE ATLANTIC (June 16, 2016), http://www.theatlantic.com/international/archive/2016/06/trump-muslims-ban-orlando/486950/; see also Jenna Johnson, Donald Trump is Expanding his Muslim ban, not rolling it back, WASH. POST (Jul. 24, 2016), https://www.washingtonpost.com/news/post-politics/wp/2016/07/24/donald-trump-is-expanding-his-muslimban-not-rolling-it-back/?utm_term=.699b07b32917; Daniel White, Read Donald Trump’s Ohio Speech on Immigration and Terrorism, TIME (Aug. 15, 2016), http://time.com/4453110/donald-trump-national-securityimmigration-terrorism-speech/.
5 Amy B. Wang, Trump asked for ‘Muslim ban,’ Giuliani says – and ordered a commission to do it ‘legally’, WASH. POST (Jan. 29, 2017), https://www.washingtonpost.com/news/the-fix/wp/2017/01/29/trump-asked-for-amuslim-ban-giuliani-says-and-ordered-a-commission-to-do-it-.
6 See also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); Larson v. Valente, 456 U.S. 228, 254-55 (1982) (holding that a facially neutral statute (cont’d)
8

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 15 of 28 PageID #: 1927
established that evidence of purpose beyond the face of the challenged law may be considered in
evaluating Establishment and Equal Protection Clause claims.”). As Judge Brinkema of the
United States District Court for the Eastern District of Virginia recently explained after
evaluating this backdrop:
The “specific sequence of events” leading to the adoption of the EO bolsters the . . . argument that the EO was not motivated by rational national security concerns. . . . The evidence in this record focuses on the president’s statements about a ‘Muslim ban’ and the link Giuliani established between those statements and the EO.
Aziz, 2017 WL 580855, at *9.
Second, the Executive Order defines “class of aliens” in a manner that discriminates on
the basis of nationality. It bars the entry of all individuals, including valid visa and green card
holders, from seven named countries—without reference to any other criteria for their exclusion.7 Defining a class in this manner raises significant constitutional questions about
impermissible classifications under the Equal Protection Clause. See, e.g., Clark v. Jeter, 486
U.S. 456, 461 (1988) (classifications based on national origin are inherently suspect and subject
to strict scrutiny).
Third, the Executive Order defines a “class of aliens” so as to include lawful permanent
residents as well as immigrant and non-immigrant visa holders from the specified countries. But,
as the Ninth Circuit recently explained, these individuals have a constitutionally protected liberty
________________________ (cont’d from previous page)
violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose). 7 Although White House counsel’s “authoritative guidance” on the Executive Order states that it does not apply to lawful permanent residents, courts have questioned its authority and recognized that this interpretation does not merit judicial notice in this context: “[I]n light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.” Washington v. Trump, 2017 WL 526497, at *8.
9

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 16 of 28 PageID #: 1928
interest in travel abroad that the government cannot restrict without due process. See Washington v. Trump, 2017 WL 526497, at *9 (explaining that constitutionally protected liberty interest in travel extends to “lawful permanent residents . . . [;] persons who are in the United States, even if unlawfully; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart; refugees; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert. . . . [and] citizens who have an interest in specific non-citizens’ ability to travel to the United States.”) (citations omitted); see also Zadvydas, 533 U.S. at 693 (non-citizens have due process rights); Landon v. Plasencia, 459 U.S. 21, 33-34 (1982) (certain individuals seeking to re-enter the United States have due process rights); Kent v. Dulles, 357 U.S. 116, 125-26 (1958) (right to travel abroad is a constitutionally protected liberty interest). The Executive Order effectively strips these individuals of the right to travel abroad (by preventing them from re-entering the country) without an opportunity to be heard, and thus relies on an interpretation of the grant of authority under Section 212(f) that is so broad as to raise serious Due Process concerns. See EO § 3(c); see also Washington v. Trump, No. 2017 WL 526497, at *8-9.
C. To Avoid Constitutional Questions, This Court Should Interpret Section 212(f) Consistent With Its Historic Application
Although the authorities conferred by Section 212(f) are hardly new, the Executive Order’s interpretation of that provision not only raises constitutional questions but departs from historic practice. Past executive orders issued under Section 212(f) have barred entry only to narrow classes of individuals—and only for tailored purposes. Notably, none has interpreted the statutory phrase “any class of aliens” to authorize a sweeping ban against individuals from a particular religion, individuals from a particular country, or legal permanent residents. Id. at 1; see also Kate M. Manuel, Cong. Research Serv., R44743, Executive Authority to Exclude Aliens:
10

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 17 of 28 PageID #: 1929
In Brief 1, 6-10 (Jan. 23, 2017) (hereinafter “Manuel”) (not counting EO 13757, 82 Fed. Reg. 1, 6-10 (Jan. 3, 2017), which amended EO 13694, 80 Fed. Reg. 18077 (Apr. 2, 2015)). This history suggests that prior presidents have understood Section 212(f) to provide a far more limited grant of authority than the Executive Order invokes.
Presidents have issued proclamations pursuant to Section 212(f) more than 43 times since 1981. Id. Although each of these proclamations has “differed in terms of which and how many aliens are subject to exclusion,” each one defined the proscribed “class of aliens” by reference to a set of particularized criteria that reflect a factual determination that their entry would be detrimental to the United States. Id. at 6.
The State Department advises that the President can suspend entry under Section 212(f) on the basis of a troublesome “affiliation” or “objectionable conduct.” U.S. Dep’t of State, Foreign Affairs Manual, 9 FAM 302.14-3(B)(1); see also Manuel at 2-3. Historically, Presidents have acted within the bounds of this guidance. Presidents have thus occasionally invoked Section 212(f) to suspend entry to individuals closely affiliated with a specific government hostile to the United States. See Manuel at 6-10. For example, President Clinton barred the entry of members of the military junta in Sierra Leone (or their family members)8 and of the Sudanese armed forces.9 Similarly, as tensions with Cuba re-escalated in the 1980s, President Reagan invoked Section 212(f) authority to bar the entry of members of the Cuban government.10
Presidents have also excluded from entry individuals engaged in particular objectionable conduct, such as crimes against humanity or activities that impede democracy.11 Presidents
8 Proclamation 7062, 63 Fed. Reg. 2871 (Jan. 16, 1998). 9 Proclamation 6958, 61 Fed. Reg. 60007 (Nov. 26, 1996). 10 Proclamation 5377, 50 Fed. Reg. 41329 (Oct. 10, 1985). 11 See, e.g., EO 13606, 77 Fed. Reg. 24571 (Apr. 24, 2012) (barring entry of aliens engaged in certain practices
(cont’d)
11

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 18 of 28 PageID #: 1930
George W. Bush, Clinton, and Obama invoked Section 212(f) to bar the entry of individuals who had formulated or benefited from policies impeding the former Zaire’s transition to democracy,12 who were involved in undermining or impeding the transition to democracy in Belarus,13 and who had participated in serious human rights and humanitarian law violations.14 Often, Presidents issued these executive orders and proclamations in conjunction with sanctions.15
Never before, however, has an executive order—issued pursuant to Section 212(f) or any other section of the INA—been used to bar a class of individuals based on a religious affiliation.16 Nor has any executive order issued pursuant to Section 212(f) suspended the entry of all foreign nationals from certain nations without reference to other limiting criteria. Nor has any executive order issued pursuant to Section 212(f) swept so broad as to include within its ambit legal permanent residents and other valid visa holders. Manuel, at 6-10 (listing all prior executive orders under Section 212(f)). When it comes to constitutional questions, the Executive Order stands alone. Consistent with the avoidance canon, this Court should reject its constitutionally fraught interpretation of “any class of aliens” under Section 212(f).
________________________ (cont’d from previous page)
related to the “Grave Human Rights Abuses by the Governments of Iran and Syria via Information Technology”); Proclamation 8693 (barring entry of “aliens subject to United Nation Security Council travel bans and international emergency economic powers act sanctions”); see also Manuel at 6-10. 12 Proclamation 6574, 58 Fed. Reg. 34209 (June 21, 1993). 13 Proclamation 8015, 71 Fed. Reg. 28541 (May 12, 2006). 14 Proclamation 8697, 76 Fed. Reg. 49277 (Aug. 5, 2011). 15 See, e.g., EO 13608, 77 Fed. Reg. 26409 (May 1, 2012) (barring entry of “Foreign Sanctions Evaders with Respect to Iran and Syria”); EO 13687, 80 Fed. Reg. 819 (Jan. 2, 2015) (barring entry of North Korean government officials as part of a larger sanctions program); see also Manuel at 1. 16 Manuel at 6 (“In no case to date . . . has the Executive purported to take certain types of action, such as barring all aliens from entering the United States for an extended period of time or explicitly distinguishing between categories of aliens based on their religion.”).
12

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 19 of 28 PageID #: 1931
II. THE PRESIDENT’S AUTHORITY UNDER SECTION 212(f) IS CIRCUMSCRIBED BY OTHER PROVISIONS OF THE INA
A. The Non-Discrimination Provision of the INA Forecloses the Executive Order
The Executive Order violates Section 202(a)(1)(A) of the INA, which expressly prohibits
discrimination based on nationality and place of birth in the issuance of immigrant visas. See 8
U.S.C. § 1152(a)(1)(A). Congress amended the INA to include this non-discrimination provision
in 1965, thirteen years after enacting Section 212(f). See 89 Pub. L. No. 89-236, 79 Stat. 911
(1965); see also Olsen v. Albright, 990 F. Supp. 31, 37 (D.D.C. 1997) (discussing enactment of
the 1965 Amendments and noting their superseding effect on prior INA provisions).17 Section
202(a)(1)(A) provides:
Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no 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). There is no ambiguity in the language of Section
202(a)(1)(A); it must therefore be given its plain meaning. Puello v. Bureau of Citizenship &
Immigration Servs., 511 F.3d 324, 327 (2d Cir. 2007).
The Executive Order discriminates on the basis of nationality in the issuance of visas and
has had an enormous effect: Some estimate that the Department of Homeland Security revoked
17 INA Section 202, introduced as part of the Immigration Act of 1965, was designed to be a direct repudiation of the discriminatory national quota system of 1952 and previous years. As Senator Edward M. Kennedy explained, “[t]he principal purpose of the bill . . . is to repeal the national origin quota provisions of the Immigration and Nationality Act, and to substitute a new system for the selection of immigrants to the United States.” Sen. Edward M. Kennedy of the S. Comm. on the Judiciary, Report: Amending the Immigration and Nationality Act, and for Other Purposes, accompanying H.R. 2580 at 10 (1965). President Lyndon B. Johnson, signing the bill at the foot of the Statute of Liberty in 1965, stated: “for over four decades the immigration policy of the United States has been twisted and has been distorted by the harsh injustice of the national origins quota system . . . . This system violated the basic principle of American democracy—the principle that values and rewards each man on the basis of his merit as a man. . . . Today, with my signature, this system is abolished.” Remarks at the Signing of the Immigration Bill, Liberty Island, New York, 546 Pub. Papers 1037, 1038 (Oct. 3, 1965) (emphasis added); see also Olsen v. Albright, 990 F. Supp. 31, 37 (D.D.C. 1997) (discussing enactment of the 1965 Amendments and noting their superseding effect on prior INA provisions); Manuel at 1.
13

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 20 of 28 PageID #: 1932
between 60,000 and 100,000 visas (including immigrant visas) held by individuals from the seven countries identified in the Executive Order within days of the President’s action.18 Moreover, even had the government processed visa applications in a manner that did not discriminate based on nationality or place of birth (thus adhering to the letter of Section 202(a)(1)(A)), but individuals with valid visas were nonetheless denied entry due to their nationality, their visas will be rendered worthless.
Fundamental principles of statutory construction compel the conclusion that Section 202(a)(1)(A) circumscribes the President’s power under Section 212(f):
First, “[w]here Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” Hillman v. Maretta, 133 S.Ct. 1943, 1953 (2013) (alteration in original) (citing Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17 (1980)). Here, Section 202(a)(1)(A) expressly excludes several provisions of the INA from its nondiscrimination requirements, but notably not the President’s authority under Section 212(f).
Second, when interpreting statutory provisions, “[s]pecific terms prevail over the general” in the event of a conflict. See Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228 (1957) (“'However inclusive may be the general language of a statute, it will not be held to apply to a matter specifically dealt with in another part of the same enactment.'” (citation omitted)). In this case, Section 202(a)(1)(A) provides the “specific term” (namely, a prohibition on discrimination in the immigrant visa application process), whereas Section 212(f) provides a “general” grant of authority to the Executive to bar entry of classes of foreign nationals where
18 Justice Dept. lawyer says 100,000 visas revoked under travel ban; State Dept. says about 60,000, WASH. POST (Feb. 3, 2017), https://www.washingtonpost.com/local/public-safety/government-reveals-over-100000-visasrevoked-due-to-travel-ban/2017/02/03/7d529eec-ea2c-11e6-b82f-687d6e6a3e7c_story.html?utm_term=.9483 c84f3c60.
14

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 21 of 28 PageID #: 1933
their immigration “would be detrimental to the interests of the United States.” Thus, to the extent there is a conflict between the two provisions, Section 202(a)(1)(A) must supersede Section 212(f).
Lastly, the Court, “in fulfilling [its] responsibility in interpreting legislation, must not be guided by a single sentence or member of a sentence, but (should) look to the provisions of the whole law, and to its object and policy.” Richards v. United States, 369 U.S. 1, 11 (1962) (citation omitted). As explained above, interpreting Section 212(f) to permit the President to bar entry to immigrant visa holders categorically based on nationality, place of birth, or place of residence would render their visas void—and the nondiscriminatory application process meaningless. To avoid this result, which is at odds with the “object and policy” of the INA as a whole, the grant of authority in Section 212(f) must be limited by the nondiscrimination principles of Section 202(a)(1)(A).
B. The Executive Order’s Exercise of Authority Under Section 212(f) Impermissibly Conflicts with Sections 208 and 241 of the INA, As Well As Section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA)
The Executive Order has interpreted the grant of authority under Section 212(f) in a manner that conflicts with Sections 208 and 241 of INA and Section 2242 of FARRA.
1. The Executive Order Conflicts With Section 208 Section 208 provides that “[a]ny alien who is physically present in the United States or who arrives in the United States . . . irrespective of such alien’s status, may apply for asylum.” 8 U.S.C. § 1158(a)(1).19 This statutory right to apply for asylum codifies the United States
19 Congress set forth provisions regarding individuals’ rights to apply for asylum as part of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, 107. Congress endeavored to make the asylum process available for individuals within the United States or at its borders. Deborah Anker, Discretionary Asylum: A Protection Remedy for Refugees Under the Refugee Act of 1980, 28 Va. J. Int’l L. 1, 3, 34 (1987).
15

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 22 of 28 PageID #: 1934
international treaty obligations and extends both to foreign nationals who are already in the country and those who have reached the border but are not yet admitted.20 I.N.S. v. Stevic, 467
U.S. 407, 423 n.18 (1984) (“A new § 208(a) [of the INA] directed the Attorney General to
establish procedures permitting aliens either in the United States or at our borders to apply for ‘asylum.’”).21 Whenever a foreign national in the custody of the Department of Homeland
Security “requests asylum or withholding of removal, or expresses a fear of persecution or harm
upon return to his or her country of origin or to agents thereof, [the Department of Homeland
Security] shall make available the appropriate . . . forms” for asylum or withholding of removal.
8 C.F.R. §§ 208.5(a), 1208.5(a) (2016). Moreover, even if a foreign national is determined to be
subject to expedited removal under Sections 212(a)(6)(C) or 212(a)(7) of INA, that individual is
entitled to a “credible fear determination” if he or she “indicates an intention to apply for asylum,
or expresses a fear of persecution or torture, or a fear of return to his or her country.” See 8
C.F.R. §§ 235.3(b)(4), 1235.3(b)(4)(i) (2016); 8 C.F.R. §§ 235.3(b)(1), 1235.3(b)(1) (2016)
(expedited removal applicability); 8 C.F.R. § 208.30 (2016) (credible fear determinations); see
also 8 U.S.C. §§ 1182(a)(6)(C), (a)(7).
The Executive Order would abrogate these rights by detaining and deporting certain
20 In 1968, by ratifying the 1967 Protocol Relating to the Status of Refugees (Protocol), the United States agreed to comply with the substantive provisions of Articles 2 through 34 of the 1951 United Nations Convention Relating to the Status of Refugees (Convention). See 19 U.S.T. 6223, 6259-6276, T.I.A.S. No. 6577 (1968); INS v. Cardoza-Fonseca, 480 U.S. 421, 424 (1987). Through the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, Congress incorporated this country’s obligations under the Protocol and Convention into federal law. “If one thing is clear from the legislative history of the new definition of ‘refugee,’ and indeed the entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the [Protocol].” Cardoza Fonseca, 480 U.S. at 436.
21 Asylum may be granted by the Secretary of Homeland Security or the Attorney General under Section 208 if either determine that the applicant is a “refugee.” 8 U.S.C. § 1158(b)(1)(A). “Refugee,” as defined by Section 101 of INA, refers to “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42).
16

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 23 of 28 PageID #: 1935
foreign nationals who reached the U.S. border without affording them the opportunity to express
their fears of return or to undergo a credible fear determination.22 See EO § 3(c). Accordingly, the
Executive Order, by its plain terms, relies on an interpretation of Section 212(f) that would put it
in conflict with Section 208(a).
2. The Executive Order Conflicts With Section 241
The Executive Order also would result in an exercise of the President’s authority under
Section 212(f) that conflicts with Section 241, which prohibits the Secretary of Homeland
Security from removing an individual to a country if the Secretary “decides that the alien’s life or
freedom would be threatened in that country because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.”23 8 U.S.C. § 1231(b)(3)(A).24 This
section provides a mandatory prohibition against return to persecution, known as refoulement.25
22 In addition, the operation of the Executive Order demonstrates that upon arrival, immigrants and nonimmigrants have been sent back to the countries from which they arrived, providing them no opportunity to claim asylum despite having reached the borders of the United States. See, e.g., Joanna Walters, Trump’s Travel Ban: Stories of Those Who Were Detained This Weekend, The Guardian (Jan. 31, 2017), https://www.theguardian.com/usnews/2017/jan/31/people-detained-airports-trump-travel-ban (“Tareq, 21, and Ammar, 19, citizens of Yemen, were handcuffed at the US airport after their long flight and two hours later were put on another plane heading back the way they had come.”).
23 See supra note 1. 24 Section 241 had been codified in the original INA in 1952 as Section 243, but it provided the Attorney General
with the discretion to decide whether the risk of persecution was worth withholding deportation. Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 243(h), 66 Stat. 163, 214. The Refugee Act of 1980 removed that discretion, so the Attorney General could no longer return an alien to a country if a determination was made that the “alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.” Refugee Act of 1980, Pub. L. No. 96-212, § 203(e), 94 Stat. 102, 107. 25 See supra note 20. Section 241, then Section 243, codified the “Prohibition of Expulsion or Return (Refoulement).” See Convention Relating to the Status of Refugees, July 28, 1951, art. 33, 189 U.N.T.S. at 176, reprinted in Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 6276 (establishing a mandatory non-refoulement provision that later inspired the change made to Section 243(h) removing the Attorney General’s discretion); see also INS v. Stevic, 467 U.S. 407, 421 (1984) (“Section 203(e) of the Refugee Act of 1980 amended the language of § 243(h), basically conforming it to the language of Article 33 of the United Nations Protocol.”). The mandatory prohibition against refoulement has been recognized as the “most essential component of refugee status and of asylum.” U.N. High Comm'r for Refugees, Note on NonRefoulement (Submitted by the High Commissioner) para. 1, U.N. Doc. EC/SCP/2 (Aug. 23, 1977), http://www.unhcr.org/en-us/excom/scip/3ae68ccd10/note-non-refoulement-submitted-high-commissioner.html.
17

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 24 of 28 PageID #: 1936
The Executive Order attempts to exercise the President’s authority under Section 212(f) in conflict with Section 241 because it appears to vitiate certain foreign nationals’ opportunity to demonstrate that they are at risk of being returned to countries where their lives or freedom are at risk. The implementation of the Executive Order already has resulted in foreign nationals arriving in the United States and being turned back to their country of origin, without any opportunity to demonstrate that their return could threaten their lives or freedom.26 This lack of process stands in sharp contrast to the “credible fear determinations” that are required for foreign nationals subject to expedited removal proceedings where the foreign national indicates a “fear of persecution or torture, or a fear of return to his or her country.”27 See 8 C.F.R. §§ 235.3(b)(1), (b)(4), 1235.3(b)(1), (b)(4)(i) (2016) (expedited removal applicability); 8 C.F.R. § 208.30 (2016) (credible fear determinations); see also 8 U.S.C. § 1182(a)(6)(C), (a)(7).
3. The Executive Order Conflicts With Section 2242 of FARRA For similar reasons, the Executive Order would exercise the President’s authority under Section 212(f) in a manner that conflicts with FARRA, which requires the United States to comply with the obligations imposed by the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. See Pub. L. No. 105277, § 2242(b), 112 Stat. 2681-822 (1998) (requiring regulations to be prescribed to implement the obligations of the United States under Article 3 of the Convention Against Torture). Section 2242 of FARRA provides that “[i]t shall be the policy of the United States not to expel, extradite,
26 See, e.g., supra note 24. 27 Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994), demonstrates the strength of the mandatory prohibition against
refoulement. In that case, an asylum applicant who had fled political persecution in Guatemala was arrested in Texas for entering without inspection. Id. at 1025. Following a deportation and asylum hearing, the Immigration Judge denied asylum and withholding of deportation. Id. at 1026. Reversing, the Second Circuit “determined that Osorio feared persecution on account of his political beliefs,” and in finding that “[t]he overall picture reveals a pattern of persecution that is horrific, and rivalled in this hemisphere perhaps only by the pattern of persecution in El Salvador,” granted the petitioner political asylum and withholding of removal. i at 1031-32.
18

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 25 of 28 PageID #: 1937
or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.” Pub. L. No. 105-277, § 2242(a), 112 Stat. 2681-822 (1998) (reprinted in 8 U.S.C. § 1231, note (2012) (United States Policy with Respect to Involuntary Return of Persons in Danger of Subjection to Torture)). Just as the Executive Order ignores whether a foreign national being turned away is being returned to a country in contravention of Section 241 of the INA, it also does not consider whether returning foreign nationals to the country from which they came may subject them to the risk of being tortured in contravention of FARRA.28
4. Section 212(f) of the INA Should Not be Read as Overriding Sections 208 and 241 of INA, or Section 2242 of FARRA
Sections 208 and 241 of the INA, and Section 2242 of FARRA, necessarily constrain the President’s exercise of authority under Section 212(f). First, as set forth above, where Congress explicitly enumerates certain exceptions to a general prohibition, courts cannot imply additional exceptions in the absence of evidence of a contrary legislative intent. See supra Part II-A. Sections 208 and 241 of the INA enumerate specific exceptions and bars. See 8 U.S.C. § 1158(a)(2) (enumerated exceptions limited to a safe third country agreement, a one year time limit, and a previously denied asylum application); 8 U.S.C. § 1231(b)(3)(B) (enumerated exceptions and bars limited to instances such as (for example) the foreign national being removed having previously “ordered, incited, assisted or otherwise participated in the persecution of an individual because of the individual’s race, religion, nationality, membership in
28 See 8 C.F.R. §§ 235.3(b)(1), (b)(4), 1235.3(b)(1), (b)(4)(i) (2016) (providing an alien subject to expedited removal with an interview by an asylum officer where such alien “expresses a fear of torture”); 8 C.F.R. § 208.30 (2016) (credible fear determinations); see also 8 U.S.C. § 1182(a)(6)(C), (a)(7).
19

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 26 of 28 PageID #: 1938
a particular social group, or political opinion”).29 Where these exceptions and bars apply, foreign nationals are no longer able to apply for asylum under Section 208 or, in some instances, are no longer subject to the mandatory prohibition against refoulement under Section 241. Section 212(f) is not, however, an enumerated exception to either Section 208 or 241.
Second, when reconciling conflicting statutory provisions, “[s]pecific terms prevail over the general” ones. Fourco Glass, 353 U.S. at 228-29 (citation omitted). Here, Sections 208 and 241 of the INA, and Section 2242 of FARRA, are specific in their grant of certain protections to asylum applicants and their dual, mandatory prohibitions against refoulement. Section 212(f), on the other hand, grants a general authority that the President. Specific provisions of Sections 208 and 241 of the INA and Section 2242 of FARRA should therefore prevail over any conflicting interpretation of Section 212(f).
Lastly, as set forth above, the Court, “in fulfilling [its] responsibility in interpreting legislation, must not be guided by a single sentence or member of a sentence, but (should) look to the provisions of the whole law, and to its object and policy.” Richards, 369 U.S. at 11 (citation omitted). As explained above, interpreting Section 212(f) to permit the President to prevent immigrants at the U.S. border from applying for asylum or from at least receiving credible fear determinations would render the protections of Sections 208 and 241 of INA and Section 2242 of FARRA worthless. To avoid this result, which is at odds with the “object and policy” of the INA as a whole, the grant of authority in Section 212(f) must be limited by the
29 Independent of the enumerated exceptions to the authority to apply for asylum, there are statutory grounds that can render an applicant ineligible for asylum. See 8 U.S.C. § 1158(b)(2). For instance, if the Attorney General or the Secretary of Homeland Security determine that the asylum applicant has “participated in the persecution of any person on account of race” or “there are reasonable grounds for regarding the alien as a danger to the security of the United States,” the Attorney General or the Secretary may not grant asylum to the applicant. 8 U.S.C. § 1158(b)(2)(A). However, it is worth emphasizing that these statutory grounds for ineligibility require determinations by the Executive. See id. (“Paragraph (1) [permitting application for asylum] shall not apply to an alien if the Attorney General determines that . . . .”).
20

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 27 of 28 PageID #: 1939

principles of those sections. CONCLUSION
For the foregoing reasons, amicus curiae respectfully requests that the enforcement and implementation of the Executive Order be permanently enjoined.

Dated: New York, New York February 16, 2017
Philip L. Torrey Sabrineh Ardalan Deborah Anker Nancy Kelly John Willshire Carrera Maggie Morgan
HARVARD IMMIGRATION AND REFUGEE CLINICAL PROGRAM 3085 Wasserstein Hall (WCC) 6 Everett Street Cambridge, Massachusetts 02138 Phone: (617) 384-8165 ptorrey@law.harvard.edu*

/s/ Boris Bershteyn Boris Bershteyn Lauren E. Aguiar Tansy Woan Breanna E. Fields Naomi S. Solomon Collin A. Rose Jacob G. Lefkowitz Davida McGhee Brandon W. Bailey
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Four Times Square New York, New York 10036 Phone: (212) 735-3000 Fax: (917) 777-3834
Counsel for Amicus Curiae

* With assistance from the following Harvard Law School students: Mana Azarmi; Zoe Egelman, Carys Golesworthy, Andrew Hanson, Nathan MacKenzie, Isabel Macquarrie, Nadia Sayed, Leora Smith and Amy Volz.
21

Case 1:17-cv-00480-CBA Document 151 Filed 02/16/17 Page 28 of 28 PageID #: 1940 CERTIFICATE OF SERVICE
I hereby certify that on February 16, 2016, I electronically filed the foregoing BRIEF FOR AMICUS CURIAE HARVARD IMMIGRATION AND REFUGEE CLINICAL PROGRAM IN SUPPORT OF THE PETITIONERS, which constitutes service under the Court’s rules.
/s/ Boris Bershteyn BORIS BERSHTEYN Boris.Bershteyn@skadden.com (212) 735-3834
1

 </s> Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 1 of 47 PageID #: 1941

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al., Petitioners,
and PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK,
Intervenor-Plaintiff, v. DONALD TRUMP, President of the United States, et al.,
Respondents

Civil Action No. 1:17-cv-00480
(Amon, J.)

BRIEF OF ARAB AMERICAN ASSOCIATION OF NEW YORK, BROOKLYN DEFENDER SERVICES, IMMIGRANT RIGHTS CLINIC OF WASHINGTON SQUARE LEGAL SERVICES, LEGAL SERVICES NYC,
MUSLIM BAR ASSOCIATION OF NEW YORK, THE NATIONAL ORGANIZATION OF WOMEN - NEW YORK STATE, THE NEW YORK
IMMIGRATION COALITION, AND TAMIZDAT AS AMICI CURIAE IN SUPPORT OF THE RELIEF SOUGHT BY PETITIONERS
AND INTERVENOR-PLAINTIFF
ALINA DAS NANCY MORAWETZ Immigrant Rights Clinic Washington Square Legal Services 245 Sullivan Street, 5th Fl. New York, NY 10012 (212) 998-6467 alina.das@nyu.edu
Counsel for Amici Curiae

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 2 of 47 PageID #: 1942
TABLE OF CONTENTS DISCLOSURE STATEMENT ........................................................................................... ii TABLE OF AUTHORITIES ............................................................................................. iii PRELIMINARY STATEMENT .........................................................................................1 STATEMENT OF INTEREST............................................................................................2 BACKGROUND ON THE EXECUTIVE ORDER AND U.S. DEPARTMENT OF STATE MEMORANDUM............................................................................................6 SUMMARY OF ARGUMENT ...........................................................................................9 ARGUMENT .....................................................................................................................10
I. The U.S. Visa System Reflects a Highly Individualized Process Upon Which Thousands of Individuals, Families, and Institutions in the United States Rely .. 10
II. Nothing in the Executive Order or the Immigration and Nationality Act and Implementing Regulations Directs or Authorizes the Federal Government’s Categorical, Classwide Revocation of Visas .........................................................19 A. The Executive Order and the Statute It Relies Upon, INA § 212(f), Do Not Authorize Categorical and Classwide Visa Revocation ..................................20 B. Neither INA § 221(i) Nor Its Implementing Regulations Authorize Classwide Visa Revocation..............................................................................22
III. The Visa Revocation Memo Has an Impermissibly Retroactive Effect In Light of Visa Holders' Settled Expectations......................................................29
CONCLUSION ..................................................................................................................33
i

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 3 of 47 PageID #: 1943 DISCLOSURE STATEMENT
Pursuant to Fed. R. Civ. P. 7.1, amici curiae state that there is no parent corporation or any publicly held corporation that owns 10% or more of the stock of any of the parties listed herein.
ii

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 4 of 47 PageID #: 1944
TABLE OF AUTHORITIES
Cases
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (19)...................................................................................................29, 30
Burger v. Gonzales, 498 F.3d 131 (2d Cir. 2007).........................................................................................28
City of New York v. Permanent Mission of India to United Nations, 618 F.3d 172 (2d Cir. 2010) .......................................................................................30
De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015) ............................................................................29, 32
Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (1992) ...................................................................................................23
Chew Heong v. United States, 112 U.S. 536 (1884) ...................................................................................................31
Clark v. Martinez, 543 U.S. 371 (2005).....................................................................................................26
Haitian Refugee Center, Inc. v. Gracey, 600 F. Supp. 1396 (D.D.C. 1985) ...............................................................................21
I.N.S. v. St. Cyr, 533 U.S. 289 (2001)...............................................................................................29, 33
Kent v. Dulles, 357 U.S. 116 (1958).....................................................................................................28
Kungys v. United States, 485 U.S. 759 (1988) ...................................................................................................25
Landon v. Plasencia, 459 U.S. 21 (1982) .....................................................................................................28
Larson v. Valente, 456 U.S. 228 (1982) ...................................................................................................27
Louhghalam v. Trump, No. 17-10154-NMG (D. Mass. Feb. 3, 2017) ......................................................1, 6, 8
iii

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 5 of 47 PageID #: 1945
Matter of H-R-, 7 I&N Dec. 651 (RC 1958) ........................................................................................11
Matter of Z, 20 I&N Dec. 707 (BIA 1993).....................................................................................21
Pierre v. Holder 738 F.3d 38 (2d Cir. 2013) .........................................................................................27
Ratzlaf v. United States, 510 U.S. 135 (1994) ...................................................................................................25
Rosenberg v. Fleuti, 374 U.S. 449 (1963) ...................................................................................................21
South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 510 n.22 (1986) ...................................................................................25
Smith v. United States, 508 U.S. 223 (1993) ...................................................................................................24
United Sav. Ass'n v. Timbers of Inwood Forest Assocs., 484 U.S. 365 (1988) ...................................................................................................24
United States v. Providence Journal Co., 485 U.S. 693 (1988) ...................................................................................................23
United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014) ....................................................................................28
United States v. Windsor, 133 S. Ct. 2675 (2013) ...............................................................................................27
Vartelas v. Holder, 566 U.S. 257, 267-68 (2012) .....................................................................................31
Zadvydas v. Davis, 533 U.S. 678 (2001) ...................................................................................................28
Statutes and Regulations
Foreign Affairs Manual: 9 FAM 402.4 ............................................................................................................. 24 9 FAM 504.4-7 (2015) ...............................................................................................13 9 FAM 504.4-8(E) (2016) ..........................................................................................13
iv

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 6 of 47 PageID #: 1946
Immigration and Nationality Act: Section 101(a)(15)(A) ..........................................................................................14, 24 Section 101(a)(15)(G) ..........................................................................................14, 24 Section 101(a)(16) ......................................................................................................10 Section 102 .................................................................................................................14 Sections 201-210 ........................................................................................................14 Section 202(a)(1) ........................................................................................................23 Section 212 .................................................................................................................14 Section 212(a).............................................................................................................14 Section 212(a)(5) ........................................................................................................12 Section 212(f) ..................................................................................................... passim Section 213(a).............................................................................................................13 Section 221(i) ..................................................................................................... passim Section 222(h) ............................................................................................................13 Section 237(a)(1)(B)...............................................................................................8, 21 Section 273 .................................................................................................................21
Title 6, United States Code: Section 236 .................................................................................................................15
Title 8, United States Code: Section 1101(a)(15)(A) ........................................................................................14, 24 Section 1101(a)(15)(G) ........................................................................................14, 24 Section 1101(a)(16) ....................................................................................................10 Section 1102 ...............................................................................................................14 Sections 1151-1160 ....................................................................................................14 Section 1152(a)(1) ......................................................................................................23 Section 1182 ...............................................................................................................14 Section 1182(a)...........................................................................................................14 Section 1182(a)(5) ......................................................................................................12 Section 1182(f) ...........................................................................................................19 Section 1183a .............................................................................................................13 Section 1201(i) ...........................................................................................................19 Section 1202(h) ..........................................................................................................13 Section 1227(a)(1)(B).............................................................................................8, 21 Section 1323 ...............................................................................................................21
Title 8, United States Code of Federal Regulations: Section 204.2(c)(3)(i) .................................................................................................12 Section 204.2(g)(3).....................................................................................................12 Section 204.2(h)(2).....................................................................................................12 Section 204.2(n) .........................................................................................................12 Section 213a(2)...........................................................................................................13 Section 214.2(a)(1) ...............................................................................................14, 24 Section 213.2(f) ..........................................................................................................11 Section 214.2(f)(5)(i)..................................................................................................17
v

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 7 of 47 PageID #: 1947
Section 214.2(f)(10)(i)................................................................................................17 Section 214.2(f)(10)(ii) ..............................................................................................17 Section 214.2(h)(16)...................................................................................................11 Section 214.2(l)(16)....................................................................................................11 Section 214.2(o)(13)...................................................................................................11 Section 214.2(p)(15)...................................................................................................11
Title 22, United States Code of Federal Regulations: Section 41.61(b)(1)(ii) ................................................................................................14 Section 41.103(a)........................................................................................................13 Section 41.102 ............................................................................................................13 Section 41.122 ..........................................................................................19, 22, 23, 25 Section 41.122(b)(1)...............................................................................................7, 24 Section 41.122(b)(2)...................................................................................................24 Section 41.122(c)........................................................................................................24 Section 41.113(e)........................................................................................................16 Section 41.113(f) ........................................................................................................16 Section 42.65(b) .........................................................................................................13 Section 42.66 ..............................................................................................................13 Section 42.67(c)..........................................................................................................13 Section 42.72(a)..........................................................................................................16 Section 42.73 ..............................................................................................................16 Section 42.82 ..................................................................................................19, 22, 23 Section 42.82(b) .........................................................................................................24 Section 42.82(c)..........................................................................................................24
Other Authorities
AILA/DOS Liaison Meeting (Apr. 7, 2016), published on AILA Doc. No. 16041133 ....................................................................................................................24
Amended Petition for Writ of Habeas Corpus and Complaint at n.12, Louhghalam v. Trump, No. 17-10154-NMG (D. Mass. Feb. 3, 2017) ........................8
Angela Dewan, Airlines Allow Passengers After Judge Blocks Travel Ban, CNN (Feb. 3, 2017) http://www.cnn.com/2017/02/04/politics/airlinesairports-trump-travel-ban .............................................................................................6
Ariana Maia Sawyer, Kurdish family head to Nashville sent back to Iraq, The Tennessean (Jan. 29, 2017), http://www.tennessean.com/story/news/local/2017/01/29/kurdishfamily-headed-nashville-sent-back-iraq/97220858/ ...................................................16
vi

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 8 of 47 PageID #: 1948
Arwa Gaballa, Eric Knecht & Michael Georgy, Trump order dashes dreams of Iraqi family bound for the United States, Reuters (Jan. 30, 2017), http://www.reuters.com/article/us-usa-trump-immigrationiraqis-idUSKBN15D0FK ...........................................................................................16
Charles Ornstein, Trump’s Executive Order Strands Brooklyn Doctor in Sudan, ProPublica (Jan. 29, 2017), https://www.propublica.org/article/trumps-executive-order-strandsbrooklyn-doctor-in-sudan ...........................................................................................12
Colin L. Powell and Thomas J. Ridge, Memorandum of Understanding between the Secretaries of State and Homeland Security Concerning the Implementation of Section 428 of the Homeland Security Act of 2002, September 29, 2003 ..........................................................................................15
Dan Levin, Counsel to the Attorney General Memorandum on Presidential Proclamation Under Section 212(f) of the Immigration and Nationality Act, U.S. Department of Justice Office of the Deputy Attorney General (Oct. 3, 2001), https://www.scribd.com/document/17819320/T5-B61-Condor-Fdr10-3-01-Levey-Memo-Re-Presidential-Proclamation-Section-212-fImmigration-and-Nationality-Act ...............................................................................20
David A. Martin, Trump’s “refugee ban” - annotated by a former top Department of Homeland Security lawyer (Jan. 3, 2017), http://www.vox.com/the-big-idea/2017/1/30/14429866/trumprefugee-ban-executive-order-annotated .....................................................................20
Executive Order 13769, Protecting the Nation from Terrorist Entry into the United States, 82 Fed. Reg. 8,977, 8,977–78 (Feb. 1, 2017) ....................... passim
Felicia Gans, I told him I do have a valid visa, but he told me that it doesn’t matter, Boston Globe (Jan. 29, 2017), https://www.bostonglobe.com/metro/2017/01/28/told-him-have-validvisa-but-told-that-doesn-matter/yttREc10s5cc7yjX3d48hJ/story.html................17, 21
Homeland Security Act (2002), PL 107-296, 116 Stat. 2135 (Nov. 25, 2006) ...........................................................................................................................15
H. Rep. 108-723, pt. 5 at 189 (2004) .................................................................................26
H.R. Rep. No. 1365, at 36 (1952) ......................................................................................26
Immigration and Nationality Act of 1952, Pub. L. No. 414, 66 Stat. 192 .........................26
vii

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 9 of 47 PageID #: 1949
Introduction and Summary to Opinions of the Office of Legal Counsel Relating to the Iranian Hostage Crisis, 4A U.S. Op. Off. Legal Counsel 7, 84, 1894 WL 54314 (Oct. 1, 1984) ..........................................................24
Josh Gerstein, State Department Notice Revoking Visas under Trump Order Released, Politico (Jan. 31, 2017), http://www.politico.com/blogs/under-the-radar/2017/01/trump-visasstate-department-234454 ......................................................................................1, 6, 8
Josh Levin, Thanks to Donald Trump, A 12-Year-Old Girl With American Parents Is Stuck in Djibouti, Slate (Jan. 29, 2017), http://www.slate.com/blogs/the_slatest/2017/01/29/a_12_year_old_gi rl_is_stuck_in_djibouti_thanks_to_trump_s_executive_order.html ..........................13
Julie Bort, This Iraqi Facebook engineer was invited to the US under President Bush, and now he’s feeling trapped, Business Insider (Jan. 30, 2017), http://www.businessinsider.com/iraqi-facebook-engineercaught-in-the-immigration-ban-2017-1 ................................................................18, 32
Justin Jouvenal, Rachel Weiner & Ann E. Marimow, Justice Dept. Lawyer Says 100,000 Visas Revoked Under Travel ban; State Dept. says About
60,000, Washington Post (Feb. 3, 2017), https://www.washingtonpost.com/local/public-safety/governmentreveals-over-100000-visas-revoked-due-to-travelban/2017/02/03/7d529eec-ea2c-11e6-b82f687d6e6a3e7c_story.html?utm_term=.10f70cacabf9 .................................................8
Kate M. Manuel, Executive Authority to Exclude Aliens: In Brief, Congressional Research Service (Jan. 23, 2017), https://fas.org/sgp/crs/homesec/R44743.pdf ..............................................................20
Lisa Seghetti, Cong. Research Serv., R43356, Border Security: Immigration Inspections at Port of Entry (2014) .......................................................21
Lives Rewritten with the Stroke of a Pen, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/interactive/2017/01/29/nyregion/detaineestrump-travel-ban.html.................................................................................6, 10, 17, 32
Lyric Lewin, “These are the faces of Trump’s ban,” CNN, http://www.cnn.com/interactive/2017/01/politics/immigration-banstories/ ........................................................................................................................18
viii

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 10 of 47 PageID #: 1950
Maria Sacchetti and Milton J. Valencia, With Visas Revoked, Travelers Barred Entry Despite Court Order, Boston Globe (Feb. 1, 2017), https://www.bostonglobe.com/metro/2017/02/01/document-filedboston-court-reveals-visas-were-revoked-for-people-from-bannedcountries/D6NBbEBA1HrF4IUrJjuljI/story.html ........................................................8
Michael D. Shear & Nicholas Kulish, Judge Blocks Part of Trump’s Immigration Order, The Seattle Times (Jan. 29, 2017), http://www.seattletimes.com/nation-world/panic-at-airports-astrumps-order-blocks-immigrants..........................................................................11, 32
Order, State of Washington v. Trump, No. 17-35105, D.C. No. 2:17-cv00141 at 9–10, (Feb. 9, 2017) (per curiam)................................................................18
Press Release, Donald J. Trump Addresses Terrorism, Immigration and National Security, (June 13, 2016), https://www.donaldjtrump.com/press-releases/donald-j.-trumpaddresses-terrorism-immigration-and-national-security ............................................27
Proclamation 7524 Suspension of Entry as Immigrants and Nonimmigrants of Persons Responsible for Actions That Threaten Zimbabwe’s Democratic Institutions and Transition to a Multi-Party Democracy, 67 Fed. Reg. 8857 (Feb. 26, 2002) ........................................................22
Proclamation 8158 Suspension of Entry as Immigrants and Nonimmigrants of Persons Responsible for Policies and Actions That Threaten Lebanon’s Sovereignty and Democracy, 72 Fed. Reg. 36587 (Jul. 3, 2007)...............................................................................................................22
Proclamation to Suspend Entry as Immigrants or Nonimmigrants of Persons Engaged in or Benefitting From Corruption, 69 Fed. Reg. 2287 (Jan. 12, 2004) ...................................................................................................22
Public Notice, Revocation of Certain Nonimmigrant Visas, 45 Fed. Reg. 24437 (April 9, 1980) .................................................................................................23
Rebecca Savransky, Giuliani: Trump Asked Me How to do a Muslim Ban “Legally,” The Hill (Jan. 29, 2017), http://thehill.com/homenews/administration/316726-giuliani-trumpasked-me-how-to-do-a-muslim-ban-legally ...............................................................28
Ruth Ellen Wasem, Cong. Research Serv., R43589, Immigration: Visa Security Policies 17-18 (2014) ...................................................................................15
ix

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 11 of 47 PageID #: 1951
Shannon Dooling, All Visas Revoked for People From 7 Barred Countries, Per State Dept., WBUR News (Feb. 7, 2017), http://www.wbur.org/news/2017/02/01/visas-revoked-statedepartment ....................................................................................................................8
Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Are Members of the Military Junta in Sierra Leone and Members of Their Families, 63 Fed. Reg. 2871 (Jan. 14, 1998) ....................................................22
Suspension of Entry as Nonimmigrants by Officers or Employees of the Government of Cuba or the Communist Party of Cuba, 50 Fed. Reg. 41329 (Oct 4., 1985)...................................................................................................22
Thomas Erdbring, Former American Embassy in Iran Attracts Pride and Dust, N.Y. Times (Oct. 31, 2013), http://www.nytimes.com/2013/11/01/world/middleeast/formeramerican-embassy-in-iran-attracts-pride-and-dust.html?_r=0 ...................................14
Theodore Schleifer, Donald Trump: ‘I Think Islam Hates Us,’ CNN (Mar. 10, 2016), http://www.cnn.com/2016/03/09/politics/donald-trumpislam-hates-us/ ............................................................................................................27
USCIS, Immigrant Fee Payment to Move USCIS (May 2, 2013) .....................................16
U.S. Customs and Border Protection, Immigrant Visas vs. Nonimmigrant Visas, https://help.cbp.gov/app/answers/detail/a_id/72/~/immigrantvisas-vs.-nonimmigrant-visas .....................................................................................10
U.S. Dep’t of State Cable, 02-State-6020 (Jan. 11, 2002), reprinted in 79 No. 4 Interpreter Releases 118-19 (Jan. 21, 2002) ....................................................13
U.S. Dep’t of State Cable, 05-State-066722 (Apr. 12, 2005), published on AILA Doc. No. 05052060 ..........................................................................................16
U.S. Dep’t of State Cable, 05-State-180015 (Sept. 28, 2005), published on AILA InfoNet at Doc. No. 05110115.........................................................................17
U.S. Dep’t of State Cable, 13 State 103210, DS-260 Worldwide Deployment (Aug. 13, 2013) ......................................................................................13
U.S. Dep’t of State, Bureau of Consular Affairs, Executive Order on Visas (Feb. 4, 2017), https://travel.state.gov/content/travel/en/news/importantannouncement.html ............................................................................................7, 8, 20
x

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 12 of 47 PageID #: 1952
U.S. Dep’t of State, Bureau of Consular Affairs, Student Visa, https://travel.state.gov/content/visas/en/study-exchange/student.html ................11, 14
U.S. Dep’t of State, Bureau of Consular Affairs, Travel for Medical Treatment, https://travel.state.gov/content/visas/en/visit/visitor.html#apply ...............................15
U.S. Dep’t of State, Bureau of Consular Affairs, Visitor Visa, https://travel.state.gov/content/visas/en/visit/visitor.html#apply ...............................14
U.S. Dep’t of State, Bureau of Consular Affairs, What the Visa Expiration Date Means, https://travel.state.gov/content/visas/en/general/visaexpiration-date.html ...................................................................................................16
U.S. Dep’t of State, Consular Electronic Application Center, Form DS160, https://ceac.state.gov/GenNIV/Default.aspx ......................................................13
U.S. Dep’t of State, Fees for Visa Services, https://travel.state.gov/content/visas/en/fees/fees-visa-services.html ........................13
U.S. Dep’t of State Memorandum (Jan. 27, 2017), http://www.politico.com/f/?id=00000159-f6bd-d173-a959ffff671a0001 ...................................................................................................7, 19, 22
xi

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 13 of 47 PageID #: 1953
PRELIMINARY STATEMENT On January 27, 2017, President Trump signed Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States,” (hereinafter “Executive Order” and “EO”) suspending the entry of all nationals from seven Muslim-majority countries: Somalia, Iran, Sudan, Syria, Iraq, Libya, and Yemen.1 Shortly after the first court challenges to the Executive Order were filed, the Department of Justice produced a memorandum (hereinafter “Visa Revocation Memo”), also dated January 27, 2017, from the U.S. Department of State.2 This Visa Revocation Memo provisionally revoked all immigrant and nonimmigrant visas held by nationals of the seven countries named in the Executive Order. In one fell swoop, the federal government upended the lives of tens of thousands of students, doctors, artists, and others— many of whom had waited years for their visas or who had travelled in and out of the United States for years. As a result of the memo, airlines refused to board passengers even though they were permitted to enter the U.S. under then-existing court orders, including the order of this Court. This case addresses the legality of the President’s Executive Order, which intends to suspend the entry of people from the seven designated countries and refugees into the United States. Amici support the arguments of the petitioners that this order is illegal, and submit this brief to address the emerging and related question of the legality of the Visa Revocation Memo which revokes visas on a classwide basis for all visa holders from the seven designated countries.
1 Executive Order 13769, Protecting the Nation from Terrorist Entry into the United States, 82 Fed. Reg. 8,977, 8,977–78 (Feb. 1, 2017). 2 Josh Gerstein, State Department Notice Revoking Visas Under Trump Order Released, Politico (Jan. 31, 2017), http://www.politico.com/blogs/under-the-radar/2017/01/trump-visas-statedepartment-234454 (noting that “the [DOS memorandum] was made public in a filing in [sic]federal court of Boston”). The case referred to is Louhghalam v. Trump, No. 17-10154NMG (D. Mass. Feb. 3, 2017).
1

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 14 of 47 PageID #: 1954
There is no authority for the Visa Revocation Memo in the Executive Order or in the governing statutes. The text of the Executive Order itself, the statutes and regulations relating to visa revocations, and well-established principles of statutory construction, including the presumption of non-retroactivity and the canon of constitutional avoidance, do not permit such classwide visa revocations. By issuing this blanket visa revocation, the federal government has needlessly upset our visa issuance system and unsettled the lives of thousands of individuals both in and out of the United States.
STATEMENT OF INTEREST Amici curiae are community organizations that advocate for individuals and communities that have been immediately and directly impacted by the January 27, 2017 Executive Order. The Executive Order and Visa Revocation Memo threaten the interests of amici by targeting visa holders who have deep ties to our families and communities. Amici have a strong interest in protecting the rights of visa holders, including the right to travel on valid visas and to petition for family members. New York is the port of entry into the United States for many of the current and future community members we serve. Amici therefore submit this brief in support of the relief sought by Petitioners and Intervenor-Plaintiff. Amici curiae are the Arab American Association of New York, Brooklyn Defender Services, Immigrant Rights Clinic of Washington Square Legal Services, Inc., Legal Services NYC, Muslim Bar Association of New York, the National Organization for Women - New York State, the New York Immigration Coalition, and Tamizdat. The Arab American Association of New York (“AAANY”) is a social service and advocacy agency based in Bay Ridge, Brooklyn, the largest Arab community in New York City. Our mission is to support and empower the Arab American and Arab immigrant community,
2

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 15 of 47 PageID #: 1955
providing the tools needed to achieve independence, productivity, and stability. Following the Executive Order, AAANY has provided legal counsel, Know Your Rights trainings, and direct support to hundreds of individuals and families directly impacted by the travel and immigration restrictions imposed by the order.
Brooklyn Defender Services (“BDS”) is a public defender organization that represents more than 45,000 people each year who cannot afford an attorney in criminal, family, and immigration proceedings. BDS has a robust Immigration Practice and has provided immigration legal services and removal defense to Brooklyn residents for many years. BDS attorneys have represented and advised individuals affected by the Executive Order, and were present at John F. Kennedy Airport to assist individuals who were detained.
Immigrant Rights Clinic of Washington Square Legal Services, Inc. (“IRC”) is a law clinic at New York University (“NYU”) School of Law that represents and works with immigrants and immigrant rights organizations. IRC operates the NYU Immigrant Defense Initiative, a project aimed at providing legal advocacy to NYU students and staff at risk of deportation. Through this initiative, IRC has worked closely with visa holders affected by the Executive Order targeting individuals from Libya, Iran, Iraq, Somalia, Sudan, Syria, and Yemen. IRC has represented individuals who were detained under the Executive Order, including at John F. Kennedy Airport. IRC also advises individuals with visas from the seven targeted countries. IRC has a stake in the proper application of the law.
Legal Services NYC (“LSNYC”) is a Legal Services Corporation funded legal aid agency that fights poverty and seeks justice for low-income New Yorkers. For more than 40 years, LSNYC has helped clients meet basic needs for housing, access to high-quality education, health care, family stability, and income and economic security. The communities LSNYC
3

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 16 of 47 PageID #: 1956
serves include many immigrant and mixed-immigration status families and LSNYC assists many asylum seekers, refugees, and survivors of crime and violence in attaining lawful immigration status. LSNYC is the largest civil legal services provider in the country, with deep roots in all of the communities they serve. LSNYC’s neighborhood-based offices and outreach sites across all five boroughs help more than 80,000 New Yorkers annually. LSNYC’s advocates were directly involved in supporting families whose relatives were affected by the Executive Order.
Muslim Bar Association of New York (“MuBANY”) is one of the nation’s largest and most active professional associations for Muslim lawyers. MuBANY provides a range of services for the legal community and for the larger Muslim community. One of MuBANY’s missions is to improve the position of the Muslim community at large by addressing issues affecting the local and national Muslim population, through community education, advancing and protecting the rights of Muslims in America, and creating an environment that helps guarantee the full, fair and equal representation of Muslims in American society. MuBANY works actively to combat anti-Muslim and anti-Islamic stereotypes in the media, courts, law enforcement and the greater community. Many MuBANY members work directly with immigrants affected by the recent Executive Order barring entry to visa holders from seven Muslim-majority countries. MuBANY members volunteered their time to support individuals and families directly impacted by this order at John F. Kennedy Airport. They have also worked with local bar associations and community groups to conduct Know Your Rights workshops across New York.
The National Organization for Women - New York State is a chapter within the National Organization for Women (NOW), the largest organization of intersectional feminist grassroots activists in the United States. NOW’s New York State chapter plays a critical role in
4

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 17 of 47 PageID #: 1957
holding government accountable to the women of New York. The Executive Order perpetuates the inherently discriminatory immigration system. Deportation repeats a cycle of violence— forcing families back into the dangerous and life-threatening circumstances that first led them to seek refuge. NOW stands in solidarity with their Muslim and immigrant sisters and brothers in opposition to the Administration’s abuse of executive authority.
The New York Immigration Coalition (“NYIC”) is an advocacy and policy umbrella organization for more than 175 multi-ethnic, multi-racial, and multi-sector groups across the state. Through its members and its own advocacy, the NYIC has long worked against unjust immigration policies. Many NYIC member organizations work directly with immigrants affected by the Executive Order. The NYIC and its members played a coordinating role to support individuals and families directly impacted by this order at John F. Kennedy Airport.
Tamizdat is a nonprofit organization that facilitates international cultural exchange. Tamizdat’s mission is motivated by the conviction that the international exchange and mobility of culture is fundamental to the growth of global civil society. Since 2000, Tamizdat has worked to safeguard cultural diversity in the United States by helping the international performing arts community address problems presented by U.S. immigration policy and procedure. Tamizdat has been integral in arranging visas for more than 20,000 performing artists from all over the world. Many of Tamizdat’s clients have been directly impacted by the Executive Order and its chilling effect on cultural programming in the U.S. will reverberate for months, if not years.
Amici therefore submit this brief in support of the relief sought by Petitioners and Intervenor-Plaintiff.
5

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 18 of 47 PageID #: 1958
BACKGROUND ON THE EXECUTIVE ORDER AND U.S. DEPARTMENT OF STATE MEMORANDUM
At approximately 4:42 pm3 on Friday, January 27, 2017, President Trump signed
Executive Order 13769, which intended to, among other things, “suspend entry into the United
States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this Order” for nationals from seven Muslim-majority countries.4 The President’s order caused
immediate chaos at our nation’s borders as lawful permanent residents, refugees, employment
and student visa holders, and others with valid visas found themselves detained at ports of entry and denied entry under threat of removal.5 At the time, it was unclear what process the
government was using to deny individuals entry. Some were sent away from the U.S. with
“cancelled” stamped on their visas, but no one was given concrete information about how this was occurring.6 These practices continued until—and in some cases, after—various federal
courts, including this Court, issued orders temporarily restraining the federal government from
enforcing the EO.
On January 31, 2017, the Department of Justice filed for the first time in the case Louhghalam v. Trump, a copy of the Visa Revocation Memo dated January 27, 2017.7 Prior to
3 Lives Rewritten with the Stroke of a Pen, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/interactive/2017/01/29/nyregion/detainees-trump-travel-ban.html. 4 Executive Order 13769, Protecting the Nation From Terrorist Entry into the United States, 82 Fed. Reg. 8,977, 8,977–78 (Feb. 1, 2017). 5 Lives Rewritten with the Stroke of a Pen, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/interactive/2017/01/29/nyregion/detainees-trump-travel-ban.html. 6 See Angela Dewan, Airlines Allow Passengers After Judge Blocks Travel Ban, CNN (Feb. 3, 2017) http://www.cnn.com/2017/02/04/politics/airlines-airports-trump-travel-ban/ (describing how some passengers had their visas physically cancelled). 7 Josh Gerstein, State Department Notice Revoking Visas Under Trump Order Released, Politico (Jan. 31, 2017), http://www.politico.com/blogs/under-the-radar/2017/01/trump-visas-statedepartment-234454 (noting that “the [DOS memorandum] was made public in a filing in [sic]federal court of Boston”). The case referenced is Louhghalam v. Trump, No. 17-10154NMG (D. Mass. Feb. 3, 2017). The same memorandum was filed in the present case on January
6

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 19 of 47 PageID #: 1959
the court filing, the memo had not been released to the public.8 The Visa Revocation Memo was
signed by Edward J. Ramotowski, Deputy Assistant Secretary, Bureau of Consular Affairs,
Department of State (“State Department” or “DOS”).9 The memo stated that at the request of the
Department of Homeland Security, as well as under the direction of the Executive Order and
pursuant to its statutory and regulatory authority, the agency had “provisionally revoke[d] all
valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria
and Yemen.”10 The only visas exempted from the revocation were visas for certain diplomats,
certain foreign government officials, and certain international organization employees, and their
family members.11 Provisional revocation, per federal regulations, has the same effect as an
actual revocation.12 In four short paragraphs, the Visa Revocation Memo unraveled an
immigration system founded on intricate, individualized, and thoroughly vetted procedures.
Confusion about the Visa Revocation Memo ensued as the public grappled to understand
its meaning and the government scrambled to clarify its scope. On February 3, 2017, a State
Department spokesperson indicated that because of the mass revocations, those visa holders who
31, 2017 as Exh. Department of State Letter by Steven Platt. Darweesh et al v. Trump et al, No. 1:17CV00480 (E.D.N.Y. 2017). 8 Id. 9 U.S. Dep’t of State Memorandum (Jan. 27, 2017), http://www.politico.com/f/?id=00000159f6bd-d173-a959-ffff671a0001. 10 Id. On February 4, 2017, DOS temporarily reversed the provisional visa revocation in response to court orders. However, if someone’s visa had been “physically canceled,” the visa holder “must apply for a new visa at a U.S. embassy or consulate, absent a CBP decision to grant parole or waive the visa requirement at the port of entry.” See U.S. Dep’t of State, Bureau of Consular Affairs, Executive Order on Visas (Feb. 4, 2017), https://travel.state.gov/content/travel/en/news/important-announcement.html. 11 U.S. Dep’t of State Memorandum (Jan. 27, 2017) (“The revocation does not apply to visas in the following nonimmigrant classifications: A-1, A-2, G-1, G-2, G-3, G-4, NATO, C-2, or certain diplomatic visas.”). 12 22 C.F.R. § 41.122(b)(1) (noting that “[p]rovisional revocation shall have the same force and effect as any other visa revocation under INA 221(i), unless and until the revocation has been reversed.”); 22 C.F.R. § 42. 82(b) (same provision for immigrant visas).
7

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 20 of 47 PageID #: 1960
chose to leave the United States would no longer be deemed to have valid visas.13 With regards
to visa holders already present in the United States, an unnamed State Department spokesperson
remarked to a news reporter that “the revocation would have no impact on the legal status of
those already in the United States,”14 but as of February 14, 2017, there has been no official
statement from the State Department or the Department of Homeland Security confirming or
denying this, even as the State Department has temporarily stayed the revocation itself due to
current court orders.15 Furthermore, the plain text of INA § 237(a)(1)(B), 8 U.S.C. §
1227(a)(1)(B), as amended in 2004, states that all persons in the United States with revoked visas
are deportable. The full text of the Visa Revocation Memo remains unavailable on the State
Department website, although it has already impacted visa holders who were neither notified of
its existence nor its scope.16
13 Justin Jouvenal, Rachel Weiner & Ann E. Marimow, Justice Dept. Lawyer Says 100,000 Visas Revoked Under Travel ban; State Dept. Says About 60,000, Washington Post (Feb. 3, 2017), https://www.washingtonpost.com/local/public-safety/government-reveals-over-100000-visasrevoked-due-to-travel-ban/2017/02/03/7d529eec-ea2c-11e6-b82f687d6e6a3e7c_story.html?utm_term=.10f70cacabf9. 14 Josh Gerstein, State Department Notice Revoking Visas Under Trump Order Released, Politico (Jan. 31, 2017), http://www.politico.com/blogs/under-the-radar/2017/01/trump-visas-statedepartment-234454 (noting that “the [DOS memorandum] was made public in a filing in [sic]federal court of Boston”). 15 U.S. Dep’t of State, Bureau of Consular Affairs, Executive Order on Visas (Feb. 4, 2017), https://travel.state.gov/content/travel/en/news/important-announcement.html (noting that its provisional revocation “is now lifted and those visas are now valid” and that the State Department will “provide further updates as soon as information is available.”). 16 See Shannon Dooling, All Visas Revoked For People From 7 Barred Countries, Per State Dept., WBUR News (Feb. 7, 2017), http://www.wbur.org/news/2017/02/01/visas-revoked-statedepartment; see also Maria Sacchetti and Milton J. Valencia, With Visas Revoked, Travelers Barred Entry Despite Court Order, Boston Globe (Feb. 1, 2017), https://www.bostonglobe.com/metro/2017/02/01/document-filed-boston-court-reveals-visaswere-revoked-for-people-from-banned-countries/D6NBbEBA1HrF4IUrJjuljI/story.html; Amended Petition for Writ of Habeas Corpus and Complaint at n.12, Louhghalam v. Trump, No. 17-10154-NMG (D. Mass. Feb. 3, 2017), https://aclum.org/wp-content/uploads/2017/01/28.Louhghalam-Amended-Complaint.pdf (noting that the State Department memorandum was
8

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 21 of 47 PageID #: 1961
SUMMARY OF ARGUMENT Each year, hundreds of thousands of people apply for visas allowing them to participate in American society, often at the invitation of and benefit to U.S. institutions. Some of these visas allow people to visit relatives, tour the country, or receive life-saving medical treatment. Other visas allow immigrants to embark on a path to American citizenship, pursue higher education, or join the workforce, often in vital contribution to the U.S. economy. After a prolonged and complex vetting process, visas are issued to individuals who rely on their validity to then purchase plane tickets, leave jobs, and sell homes. Visa holders in the United States might make academic, personal, or business trips abroad, depending on their visas to return to America. Some of these individuals cannot return to their country of origin for fear of persecution. At the request of DHS, citing the January 27, 2017 Executive Order, the State Department revoked visas on a classwide basis with no individualized process mirroring their initial issuances. But the Executive Order neither authorizes visa revocation, nor does the Immigration and Nationality Act provide the Secretary of State with boundless discretion to do so in a categorical, classwide manner. Governing regulations require that revocation occur following a tailored determination that a particular individual is deemed ineligible for a visa. The statute and governing regulations cabin the Secretary of State’s power to ensure constitutionally adequate revocations that do not have impermissible retroactive effects. As the stories, statutory analysis, and legislative history below demonstrate, this Court should ensure that the federal government exercises its authority to revoke visas strictly on an individualized basis to protect individuals’ significant reliance interests and constitutional rights.
“never before disclosed to the plaintiffs, nor was it disclosed to this Court at the hearing on January 28-29, 2017”).
9

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 22 of 47 PageID #: 1962
ARGUMENT I. The U.S. Visa System Reflects a Highly Individualized Process Upon Which
Thousands of Individuals, Families, and Institutions in the United States Rely. Actors both inside and outside of the U.S. rely on the general functioning of a visa system that is premised on individualized determinations about whether noncitizens will be granted visas and allowed to enter the country. Private citizens, corporations, universities, the tourism industry, and other institutions in the U.S. all depend upon the visa system in order to conduct their lives and go about their daily business. These expectations crystalize once noncitizens go through the individualized process of applying for visas, passing security checks, and obtaining visas. These expectations also grow over time once noncitizens have been issued a valid visa; they buy plane tickets, sell property, quit jobs in their countries of origin, schedule surgeries, and take other steps to plan their visit or move to the U.S. Even before the formal visa process begins, many individuals who seek and will ultimately obtain visas have already invested time and resources into their decisions to pursue a visa. For example, many individuals who apply for “immigrant visas,” which generally require an intent to settle permanently in the U.S., by definition have U.S. citizen and lawful permanent resident family members who are sponsoring them for their visas.17 For instance, Hamdiyah Al Saeedi is a 65-year-old Iraqi woman whose son, a U.S. citizen and sergeant in the U.S. Army, spent five years “filling out endless forms” so that his parents could join him in the U.S. as lawful permanent residents.18 When Mrs. Al Saeedi’s husband died in December 2016, leaving
17 INA § 101(a)(16), 8 U.S.C. § 1101(a)(16); U.S. Customs and Border Protection, Immigrant Visas vs. Nonimmigrant Visas, https://help.cbp.gov/app/answers/detail/a_id/72/~/immigrantvisas-vs.-nonimmigrant-visas. 18 Lives Rewritten with the Stroke of a Pen, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/interactive/2017/01/29/nyregion/detainees-trump-travel-ban.html.
10

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 23 of 47 PageID #: 1963
her widowed and alone, the need for her to be reunited with her son only intensified.19 By the
time she finally was able to travel to the U.S. with her approved family visa petition, ready to be
admitted to the country as a lawful permanent resident, Mrs. Al Saeedi and her son had already
invested significant resources into the visa process.
Similarly, many individuals who apply for “non-immigrant visas” have already made
decisions and invested their time and effort to pursue studies, research, or employment in the United States.20 For example, individuals seeking “F1” student visas must first apply to a school approved by the Student and Visa Exchange Program.21 If accepted, potential students are
enrolled in a program, pay a fee, and then are issued an I-20 “Certificate of Eligibility for Nonimmigrant Student Status.”22 Only then are students able to apply for a visa to enter the U.S.
to attend their school. Some students spend years saving money and applying to schools before
they ever get to the stage of applying for a visa. Shadi Heidarifar, an Iranian philosophy student
recently admitted to New York University, spent three years saving money, gathering documents, and applying to universities.23 The application fees alone were enough for a family in Iran to live on for one month.24
Similarly, many employment-related visas require applicants to have a pre-existing
relationship with their potential employer. Some employment visa petitions require an approved
19 Id. 20 Some nonimmigrant visas can lead to permanent status in the U.S. and recognize that nonimmigrants may have a “dual intent”—that is, both a short-term intent to leave and a longterm intent to stay permanently. Matter of H-R-, 7 I&N Dec. 651, 654 (RC 1958); 8 C.F.R. §§ 214.2(h)(16), (l)(16), (o)(13), (p)(15). 21 8 C.F.R. § 213.2(f); U.S. Dep’t of State, Bureau of Consular Affairs, Student Visa, https://travel.state.gov/content/visas/en/study-exchange/student.html. 22 Id. 23 Michael D. Shear & Nicholas Kulish, Judge Blocks Part of Trump’s Immigration Order, The Seattle Times (Jan. 29, 2017), http://www.seattletimes.com/nation-world/panic-at-airports-astrumps-order-blocks-immigrants/. 24 Id.
11

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 24 of 47 PageID #: 1964
labor certification issued by the Department of Labor before a visa petition can be filed at all.25 Other employment visas require extensive applications and interviews prior to any visa application. In the medical field, for example, licensed physicians seeking H-1B visas must take exams and interview with potential employers through the residency process before applying for a visa.26 Dr. Kamal Fadlalla, a Sudanese medical resident, made multiple trips to the U.S. to interview with the Interfaith Medical Center in Brooklyn and take his entrance exam prior to receiving his H-1B visa.27 Each trip came with financial costs and resource investments by not only Dr. Fadlalla, but also the Interfaith Medical Center, which, like many hospitals, depends on the ability to recruit qualified doctors from across the world.28
Individuals’ and institutions’ investments into the visa process deepen at the stage of the visa application. For visas that require an initial petition to be approved by the U.S. Citizenship and Immigration Services (USCIS), part of the Department of Homeland Security (DHS), approved petitions are then sent to an intermediary processing center where the information about the petition is entered into a system that can be accessed by consular posts.29 For immigrant visas, once the intermediary processing center is ready to continue with visa processing, the applicant must submit additional fees, forms, and documents, including proof that someone in the U.S. will economically support them, before their application is forwarded to a
25 INA § 212(a)(5), 8 U.S.C. § 1182(a)(5). 26 Charles Ornstein, Trump’s Executive Order Strands Brooklyn Doctor in Sudan, ProPublica (Jan. 29, 2017), https://www.propublica.org/article/trumps-executive-order-strands-brooklyndoctor-in-sudan. 27 Id. 28 Id. (“Each year, around a quarter of the residents and fellows in advanced training programs around the U.S. attended medical school outside the country. While some of those are U.S. citizens or permanent residents, about 15 to 20 percent of the total are not.”). 29 8 C.F.R. §§ 204.2(c)(3)(i), (g)(3), (h)(2), (n).
12

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 25 of 47 PageID #: 1965
U.S. consulate for processing.30 Most immigrant visa applicants also must submit police
certificates31 and undergo a medical exam by an authorized physician, which includes a physical
and a mental evaluation.32 Nonimmigrant visa applicants additionally undergo considerable
processing before receiving their visas. They must first fill out a form, usually online, that
includes personal information, passport information, travel plans, previous U.S. travel, contacts
in the U.S., family, work, education and training history, and extensive security-related
questions.33 The form has a fee of $160 or more depending on the visa type.34 Most males ages
16 to 45 must fill out an additional form.35
With limited exceptions, all visa applicants between the ages of 14 and 79 must submit
photographs, have their fingerprints taken, and be interviewed at a U.S. consulate abroad.36
Those who live in countries without U.S. consulates must travel to a third country to have their
visas processed.37 Traveling to a far-away U.S. consulate can be very onerous. One 12-year-old
Yemini girl seeking to be reunited with her U.S. citizen parents and siblings had to go to an
immigrant visa interview in Djibouti after the U.S. consulate in Yemen closed.38 To get from
30 U.S. Dep’t of State Cable, 13 State 103210, DS-260 Worldwide Deployment (Aug. 13, 2013); INA § 213(a), 8 U.S.C. § 1183a; 8 C.F.R. § 213a(2). 31 22 C.F.R. § 42.65(b). 32 22 C.F.R. § 42.66; 9 FAM 504.4-7 (2015). 33 22 C.F.R. § 41.103(a); U.S. Dep’t of State, Consular Electronic Application Center, Form DS160, https://ceac.state.gov/GenNIV/Default.aspx. 34 U.S. Dep’t of State, Fees for Visa Services, https://travel.state.gov/content/visas/en/fees/feesvisa-services.html. 35 U.S. Dep’t of State Cable, 02-State-6020 (Jan. 11, 2002), reprinted in 79 No. 4 Interpreter Releases 118-19 (Jan. 21, 2002). 36 69 FR 78515 (Dec. 30, 2004); INA § 222(h), 8 US.C. § 1202(h); 22 C.F.R. § 41.102; 22 C.F.R. § 42.67(c). 37 9 FAM 504.4-8(E) (2016). 38 Josh Levin, Thanks to Donald Trump, A 12-Year-Old Girl With American Parents Is Stuck in Djibouti, Slate (Jan. 29, 2017), http://www.slate.com/blogs/the_slatest/2017/01/29/a_12_year_old_girl_is_stuck_in_djibouti_tha nks_to_trump_s_executive_order.html.
13

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 26 of 47 PageID #: 1966
Yemen to Djibouti, she took a 16-hour bus ride to the airport, flew to Jordan, and then made her
way to Djibouti.39 For decades, Iranians have had to leave Iran to apply for visas to come to the
U.S., as there is no U.S. consulate in Iran.40
At their interview, applicants must show both that they are eligible for the visa they are
seeking and that they are not subject to any of the many bars to admission.41 Unless the applicant
is eligible for a waiver, immigrant and nonimmigrant visas can be denied based on a wide range
of grounds of inadmissibility, including criminal history, security-related grounds, health-related
grounds, indigence, violations of immigration laws, and prior removals from the U.S.42 Through
the interview process and by reviewing all of the forms and documents provided by the
applicant, consular officers then determine on an individualized basis whether each applicant is
eligible for a visa.43
Most visa applicants must also provide additional, application-specific information. For
example, students may have to provide proof of their prior schooling, standardized test scores,
and proof that they can pay for all education, living, and travel expenses.44 Those seeking
39 Id. 40 9 FAM 504.4-8(E) (2016); Thomas Erdbring, Former American Embassy in Iran Attracts Pride and Dust, N.Y. Times (Oct. 31, 2013), http://www.nytimes.com/2013/11/01/world/middleeast/former-american-embassy-in-iranattracts-pride-and-dust.html?_r=0. 41 See generally INA §§ 201-210, 8 U.S.C. §§ 1151-1160; INA § 212, 8 U.S.C. § 1182. 42 See generally INA § 212(a), 8 U.S.C.§ 1182(a). For certain diplomatic and foreign government officials, DOS only has to accept their credentials in order to issue a visa. INA § 101(a)(15)(A), 8 U.S.C. § 1101(a)(15)(A); 8 C.F.R. § 214.2(a)(1) (“A visas” for diplomats and certain recognized foreign government employees); INA § 101(a)(15)(G), 8 U.S.C. § 1101(a)(15)(G) (“G visas” for certain international organization members). Those who are eligible for A visas and G visas are largely exempt from the grounds of inadmissibility except for certain security-related grounds. See INA § 102, 8 U.S.C. § 1102. 43 U.S. Dep’t of State, Bureau of Consular Affairs, Visitor Visa, https://travel.state.gov/content/visas/en/visit/visitor.html#apply. 44 22 C.F.R. § 41.61(b)(1)(ii); U.S. Dep’t of State, Bureau of Consular Affairs, Student Visa, https://travel.state.gov/content/visas/en/study-exchange/student.html.
14

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 27 of 47 PageID #: 1967
medical treatment must present a diagnosis from their local doctor explaining why they need treatment in the U.S., proof that a provider in the U.S. has agreed to provide the needed treatment, and proof that the visa seeker can pay for all of their travel, living, and medical expenses while in the U.S.45
All visa applications go through multiple levels of individualized security review. Applicants’ biographic data and fingerprints are checked against the Consular Consolidated Database, which contains over 143 million records of past visa applications and comments by consular officers, and links to multiple DHS and FBI databases, including DHS’s Automated Biometric Identification System (IDNET), the FBI’s Integrated Automated Fingerprint Identification System (IAFIS), and DHS’s Traveler Enforcement Compliance System (TECS).46 DOS uses facial recognition software to compare applicants’ photos against photos from the Terrorist Screening Center.47 Consular officers also check applicants’ data against securityrelated “lookout databases,” including the Consular Lookout and Support System (CLASS) database.48 Pursuant to § 428 of the Homeland Security Act (HAS),49 DHS is now heavily involved in providing regulatory guidance for visa processing at consulates, and DHS employees are assigned to most consulates and diplomatic posts.50 If there is a match between an applicant and the CLASS database, consular officials “must assume that the finding was correct” and may
45 U.S. Dep’t of State, Bureau of Consular Affairs, Travel for Medical Treatment, https://travel.state.gov/content/visas/en/visit/visitor.html#apply. 46 Ruth Ellen Wasem, Cong. Research Serv., R43589, Immigration: Visa Security Policies 17-18 (2014). 47 Id. 48 Id. 49 PL 107-296, 116 Stat. 2135 (Nov. 25, 2006). 50 6 U.S.C. § 236; Colin L. Powell and Thomas J. Ridge, Memorandum of Understanding between the Secretaries of State and Homeland Security Concerning the Implementation of Section 428 of the Homeland Security Act of 2002, September 29, 2003.
15

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 28 of 47 PageID #: 1968
not look behind DHS’s finding.51 In sum, both DOS and DHS are involved in multilevel
security-related reviews of visa applicants. Only after this highly individualized process is
complete will a visa be granted.
Approved nonimmigrant visas are issued for varying lengths of time and are valid for one or multiple entries.52 Approved immigrant visas are issued in passports and returned to the applicant with a sealed packet to be presented at the border.53 Generally the immigrant visa
holder must travel to the U.S. within six months or less and must pay an additional fee to USCIS.54
Once a visa is issued, and during the period of time that it remains valid, visa holders
upend their lives in reliance on the visas. For example, when Fuad Sharef Suleman and his
wife, Arazoo Sulemen, learned that their Kurdish family of five were granted special immigrant
visas after waiting for two years, they quit their jobs at a pharmaceutical company and as a
kindergarten teacher, sold their house, belongings, and vehicles, and removed their three children from their schools.55 They spent $5,000 making travel arrangements and arranged for their friends in Nashville, Tennessee to help find them a house and jobs.56 Similarly, when U.S.
citizen Douman Khoshbakhti’s parents from Iran were granted immigrant visas to join him in
51 U.S. Dep’t of State Cable, 05-State-066722 (Apr. 12, 2005) at ¶¶ 7-8, published on AILA Doc. No. 05052060. 52 22 C.F.R. §§ 41.113(e), (f); U.S. Dep’t of State, Bureau of Consular Affairs, What the Visa Expiration Date Means, https://travel.state.gov/content/visas/en/general/visa-expirationdate.html. 53 22 C.F.R. § 42.73. 54 22 C.F.R. § 42.72(a); USCIS, Immigrant Fee Payment to Move USCIS (May 2, 2013). 55 Ariana Maia Sawyer, Kurdish family head to Nashville sent back to Iraq, The Tennessean (Jan. 29, 2017), http://www.tennessean.com/story/news/local/2017/01/29/kurdish-family-headednashville-sent-back-iraq/97220858/. 56 Arwa Gaballa, Eric Knecht & Michael Georgy, Trump order dashes dreams of Iraqi family bound for the United States, Reuters (Jan. 30, 2017), http://www.reuters.com/article/us-usatrump-immigration-iraqis-idUSKBN15D0FK.
16

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 29 of 47 PageID #: 1969
the U.S, his mother immigrated first while his father stayed in Tehran to “tie up the loose ends of a lifetime,” selling his car and the family’s construction supplies shop.57 Even those coming to
the U.S. temporarily make substantial investments once a visa has been issued. For example, Dr.
Samira Asgari, an Iranian national who was granted a fellowship at Harvard Medical School, quit her job in Switzerland and rented out her apartment in preparation for the fellowship.58
Harvard Medical School similarly depended on the availability of visas in order to recruit Dr. Asgari and other “talented young researchers from around the globe.”59
Once visa holders enter the U.S., they make endless important life decisions premised on
the ability to maintain their visa and travel outside of the U.S. Those who enter on student visas,
for example, are usually admitted for “duration of status,” meaning for as long as their visa is valid and they are “making normal progress toward completing a course of study.”60 State
Department guidance thus provides that “[p]osts should facilitate the reissuance of student visas
so that these students can travel freely back and forth between the homeland and the United States.”61 Some students spend years or even decades getting their education in the U.S. and are
able to get work visas. Before and after completing a course of study, student visa holders may be eligible for limited work authorization and optional practical training.62
Similarly, employment visa holders already in the U.S. rely on their visas to maintain
their personal and professional contacts abroad. For example, Murtadha Al Tameemi, an Iraqi
57 Lives Rewritten with the Stroke of a Pen, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/interactive/2017/01/29/nyregion/detainees-trump-travel-ban.html. 58 Felicia Gans, I told him I do have a valid visa, but he told me that it doesn’t matter, Boston Globe (Jan. 29, 2017), https://www.bostonglobe.com/metro/2017/01/28/told-him-have-validvisa-but-told-that-doesn-matter/yttREc10s5cc7yjX3d48hJ/story.html. 59 Id. 60 8 C.F.R. § 214.2(f)(5)(i). 61 U.S. Dep’t of State Cable, 05-State-180015 (Sept. 28, 2005) at ¶6, published on AILA InfoNet at Doc. No. 05110115. 62 8 C.F.R. §§ 214.2(f)(10)(i), (ii).
17

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 30 of 47 PageID #: 1970
national, originally came to the U.S. through a cultural exchange program over ten years ago, and then was able to get a work visa. 63 He currently works in Seattle as an engineer at Facebook.64 His family was recently resettled in Vancouver, Canada, and, until recently, he was able to reestablish a close relationship with them by visiting regularly.65 Babak Seradjeh, an
Iranian-Canadian physics professor from Indiana University, relies on his visa to be able to conduct research funded by the National Science Foundation.66 Prior to the EO, he could travel
relatively freely in order to conduct research that his university and other American institutions value deeply.67 Valid visa holders have the expectation and make concrete plans on the basic
premise that if they abide by the terms of their visa, it will remain valid for the specified term.
Employers and institutions in the U.S. similarly rely on the availability of visas and the freedom
of movement of their employees and students in order to secure attractive candidates and carry out their missions.68
In sum, noncitizens seeking to come to the U.S. temporarily or permanently make choices
about where to live, study, and work. After choosing to come to the U.S., they go through a
complex process whereby the government makes a series of individualized determinations about
each visa holder’s eligibility for the visa they seek. Once visas are granted, noncitizens rely on
their visas to rent apartments, buy homes, and otherwise settle for a period of time in the U.S.,
63 Julie Bort, This Iraqi Facebook engineer was invited to the US under President Bush, and now he’s feeling trapped, Business Insider (Jan. 30, 2017), http://www.businessinsider.com/iraqifacebook-engineer-caught-in-the-immigration-ban-2017-1. 64 Id. 65 Id. 66 Lyric Lewin, “These are the faces of Trump’s ban,” CNN, http://www.cnn.com/interactive/2017/01/politics/immigration-ban-stories/. 67 Id. 68 See, e.g., Order, State of Washington v. Trump, No. 17-35105, D.C. No. 2:17-cv-00141 at 9– 10, (Feb. 9, 2017) (per curiam) (summarizing the State of Washington’s arguments that the EO causes “a concrete and particularized injury to their public universities”).
18

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 31 of 47 PageID #: 1971
while at the same time being free to travel outside of the country in order to attend weddings, funerals and conferences; conduct research; visit family; and otherwise live their lives. These individualized visa determinations, therefore, have great implications for the noncitizens themselves, as well as for their American schools, employers, family members, and communities.
II. Nothing in the Executive Order or the Immigration and Nationality Act and Implementing Regulations Directs or Authorizes the Federal Government’s Categorical, Classwide Revocation of Visas.
The Visa Revocation Memo cites two sets of sources for its authority to engage in classwide visa revocation: First, section 3(c) of the Executive Order and INA § 212(f),69 upon which the Executive Order relies; and second, INA § 221(i)70 and the implementing regulations for visa revocations under 22 C.F.R. §§ 41.122 and 42.82.71 None of these sources direct or authorize the classwide revocation of visas. First, the Executive Order itself does not explicitly or implicitly direct DOS to revoke visas, nor does INA § 212(f) require or permit classwide revocation. Second, INA § 221(i), the only statutory authority for visa revocation, does not contemplate such a categorical and overbroad classwide revocation. Instead, INA §221(i) and its implementing regulations specifically restrict DOS’s capacity to revoke visas to individualized adjudicatory revocations, rendering the DOS’s Visa Revocation Memo an impermissible, unauthorized exercise of the federal government’s authority.
69 8 U.S.C. § 1182(f). 70 8 U.S.C. § 1201(i). 71 U.S. Dep’t of State Memorandum (Jan. 27, 2017) (“Upon request of the U.S. Department of Homeland Security. . . and in implementation of section 3(c) of the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals, I hereby provisionally revoke all valid nonimmigrant and immigrant visas of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen”).
19

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 32 of 47 PageID #: 1972
A. The Executive Order and the Statute It Relies Upon, INA § 212(f), Do Not Authorize Categorical and Classwide Visa Revocation.
The Executive Order on its face does not direct the Secretary of State to begin wide-scale
visa revocations.72 The Executive Order claims only one source of authority, INA § 212(f), and
nothing in § 212(f) mention visas or provides the President or the Secretary of State with
authority to revoke visas on a classwide basis.73 INA § 212(f) only permits the President to
suspend “entry” into the United States.74 Although “entry” is no longer formally defined in the
INA, it has historically described when an individual makes herself physically present in the
72 See U.S. Dep’t of State, Bureau of Consular Affairs, Executive Order on Visas (Feb. 4, 2017), https://travel.state.gov/content/travel/en/news/important-announcement.html. In arguing that the Executive Order does not direct the State Department to revoke visas, amici do not suggest that the State Department acted independently when it issued the visa revocation memo. Rather, the text of the memorandum itself notes that it was directed by the Department of Homeland Security, and the reference to the Executive Order suggests that the White House itself likely requested this action. However, the text of the Executive Order does not specify that visas should be revoked on a classwide basis. 73 INA § 212(f) provides in relevant part:
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. 74 Id. Furthermore, as the Department of Justice recognized less than a month after 9/11, “no President had invoked section 212(f) for all nationals of a particular country but has tied the suspension of entry to subsets of nationalities that have engaged in a specific activity.” See Dan Levin, Counsel to the Attorney General Memorandum on Presidential Proclamation Under Section 212(f) of the Immigration and Nationality Act, U.S. Department of Justice Office of the Deputy Attorney General (Oct. 3, 2001) at 2, https://www.scribd.com/document/17819320/T5-B61-Condor-Fdr-10-3-01-Levey-Memo-RePresidential-Proclamation-Section-212-f-Immigration-and-Nationality-Act; see also David A. Martin, Trump’s “refugee ban” - annotated by a former top Department of Homeland Security lawyer (Jan. 3, 2017), http://www.vox.com/the-big-idea/2017/1/30/14429866/trump-refugeeban-executive-order-annotated. The history of executive orders issued under INA § 212(f) suggests that a classwide suspension of entry based on national origin without exception is unprecedented, but instead has been further cabined by alleged incriminating actions taken by impacted individuals or suspected connections with nefarious groups that those individuals may have. See Kate M. Manuel, Executive Authority to Exclude Aliens: In Brief, Congressional Research Service (Jan. 23, 2017) at p. 6–10, https://fas.org/sgp/crs/homesec/R44743.pdf.
20

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 33 of 47 PageID #: 1973
United States.75 Matter of Z, 20 I&N Dec. 707, 708 (BIA 1993) (describing entry as “crossing
into the territorial limits of the United States, inspection and admission by an immigration officer
or actual and intentional evasion of inspection at the nearest inspection point; and freedom from
official restraint.”).
Visa revocations are not required to suspend entry. U.S. Customs and Border Protection
(CBP) regularly restricts entry for individuals as a part of its travel screening procedures without revoking or otherwise cancelling visas.76 Visa revocation has wide-ranging implications beyond
barred entry. A person present in the U.S. with a revoked visa is subject to removal under INA § 237(a)(1)(B),77 and federal law bars aircrafts from boarding people with revoked visas, thus making those people unable to present themselves at the U.S. border for entry.78 In this case, the
Visa Revocation Memo circumvented this Court’s order enjoining the federal government from
barring entry of valid visa holders by preventing those individuals from boarding their flights to the U.S.79 Visa holders in other countries attempting to board their U.S. bound flights were told they had invalid visas and were thus unable to benefit from this Court’s order.80
75 See Rosenberg v. Fleuti, 374 U.S. 449, 452 (1963) (“The term ‘entry’ means any coming of an alien into the United States, from a foreign port or place or from an outlying possession”); Haitian Refugee Center, Inc. v. Gracey, 600 F. Supp. 1396 (D.D.C. 1985) (finding that interdiction of Haitians lacking visas attempting to arrive to the United States by sea was permissible pursuant to the President’s authority to suspend entry under INA § 212(f)). 76 See Lisa Seghetti, Cong. Research Serv., R43356, Border Security: Immigration Inspections at Port of Entry (2014). 77 8 U.S.C. § 1227(a)(1)(B). 78 INA § 273, 8 U.S.C. § 1323 (barring transportation companies from bringing anyone to the U.S. without a valid visa). 79 Order granting Motion to Stay, January 28, 2017, Darweesh et al v. Trump et al, 1:17CV00480. 80 See, e.g., Felicia Gans, I told him I do have a valid visa, but he told me that it doesn’t matter, Boston Globe (Jan. 29, 2017), https://www.bostonglobe.com/metro/2017/01/28/told-him-havevalid-visa-but-told-that-doesn-matter/yttREc10s5cc7yjX3d48hJ/story.html.
21

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 34 of 47 PageID #: 1974
Previous exercises of INA § 212(f) authority have not required the classwide revocation
of visas, and any direction given to the State Department in past executive orders under INA §
212(f) have historically been limited to identifying individuals who have undertaken specific
activity rather than revoking visas on a classwide basis. 81 Thus an exercise of authority under
INA § 212(f)—assuming such authority is legal—neither authorizes nor requires the revocation
of visas.
B. Neither INA § 221(i) Nor Its Implementing Regulations Authorize Classwide Visa Revocation.
Of the sources of authority cited in the Visa Revocation Memo, only INA § 221(i) and its
implementing regulations speak at all to the State Department’s authority to revoke visas. 82
These sources do not authorize classwide visa revocation; rather, they provide the State
Department with authority to make individualized decisions to revoke visas based on new
81 Previous executive orders invoking INA § 212(f) have explicitly requested the Secretary of State to take action but in such a way that the critical determination is whether an individual fits within the identified class—they have not authorized blanket revocation of visas. For instance, President Clinton suspended entry of members of the Sierra Leonean military junta under INA § 212(f), but dictated that “persons covered” by the suspension of entry would be “identified” by the Secretary of State. Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Are Members of the Military Junta in Sierra Leone and Members of Their Families, 63 Fed. Reg. 2871 (Jan. 14, 1998). In that case, the executive order recognized that the Secretary of State’s authority was cabined by a requirement to make individualized assessments as to whether a person fits within the scope of the President’s suspension.
Other executive orders, dating as far back as 1985, enacted similar provisions. See, e.g., Suspension of Entry as Nonimmigrants by Officers or Employees of the Government of Cuba or the Communist Party of Cuba, 50 Fed. Reg. 41329 (Oct 4., 1985); Proclamation to Suspend Entry as Immigrants or Nonimmigrants of Persons Engaged in or Benefitting From Corruption, 69 Fed. Reg. 2287 (Jan. 12, 2004); Proclamation 7524 Suspension of Entry as Immigrants and Nonimmigrants of Persons Responsible for Actions That Threaten Zimbabwe’s Democratic Institutions and Transition to a Multi-Party Democracy, 67 Fed. Reg. 8857 (Feb. 26, 2002); Proclamation 8158 Suspension of Entry as Immigrants and Nonimmigrants of Persons Responsible for Policies and Actions That Threaten Lebanon’s Sovereignty and Democracy, 72 Fed. Reg. 36587 (Jul. 3, 2007). No comparable stipulation exists in the current Executive Order at issue. 82 U.S. Dep’t of State Memorandum (Jan. 27, 2017) (“[Pursuant to sections 212(f) and 221(i) of the Immigration and Nationality Act and 22 CFR 41.122 and 42.82 . . .”).
22

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 35 of 47 PageID #: 1975
information or after revisiting a prior determination. The plain language of the statute and
regulations, the statutory framework and purpose, the legislative history, and other tools of
statutory construction support this understanding of INA § 221(i) and its implementing
regulations.
The language of INA § 221(i) and its implementing regulations, 22 C.F.R. §§ 41.122 and
42.82, contemplate that DOS has the authority to make individualized visa revocation decisions.83 A plain reading of the statute makes clear that visa revocation is an individualized adjudicatory procedure.84 INA § 221(i) provides: “After the issuance of a visa or other
documentation to any alien, the consular officer or the Secretary of State may at any time, in his
discretion, revoke such visa or other documentation.” By using the singular (“a visa,” “any
alien,” and “such visa”), the plain language demonstrates that DOS should make case-by-case
assessments about the need to invalidate an individual’s previously approved visa. Just as the
granting of a visa requires individualized evaluations, revocation of a visa requires DOS to make a case-by-case determination.85
83 The non-discrimination provision of INA § 202(a)(1), 8 U.S.C. § 1152(a)(1), prohibiting discrimination in the issuance of an immigrant visa because of a person’s nationality or place of birth, also underscores the invalidity of the federal government’s reading of its authority under INA § 221(i). 84 See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992) (“The controlling principle in this case is the basic and unexceptional rule that courts must give effect to the clear meaning of statutes as written); United States v. Providence Journal Co., 485 U.S. 693, 700-01 (1988). 85 Diplomatic visas present an exception to this general rule of individualized revocation where the United States severs diplomatic ties with the visa holder’s country. Diplomatic visas are statutorily distinct from other non-immigrant visas, in that diplomatic visas must be “accepted by the President or by the Secretary of State” and are based on de jure recognition of the visa holder’s country. 8 U.S.C. § 1101(a)(15)(A); see also see also INA § 101(a)(15)(G) (international organization visas based on accreditation and de jure recognition by the United States). There are at least two instances where, invoking statutory authority under INA § 221(i), the Secretary of State has revoked diplomatic visas. See Public Notice, Revocation of Certain Nonimmigrant Visas, 45 Fed. Reg. 24437 (April 9, 1980) (providing notice that the Secretary of
23

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 36 of 47 PageID #: 1976
Federal regulations also demonstrate the individualized nature of visa issuance and
revocation. Sections 41.122(b)(2) and 42.82(b) of the C.F.R. state that the Secretary “may
provisionally revoke a [nonimmigrant or immigrant] visa while considering information related
to whether a visa holder is eligible for the visa.” While a provisional revocation may be reversed
by DOS, “[p]rovisional revocation shall have the same force and effect as any other visa
revocation under INA 221(i).”86 Applicants should be notified of the intent to revoke a visa if it
is practicable.87 Nonimmigrant visa holders may have their visas revoked if they are arrested for
a DUI, or if the U.S. government receives information about a “suspected ineligibility.”88 The
revocation of a visa, therefore, requires the government to consider a visa holder’s individual
circumstances in order to determine whether revocation is appropriate.
A holistic89 reading of the INA further indicates that INA § 221(i) should be read to
authorize individualized visa revocation. When Congress authorizes action on a classwide basis,
State had revoked “all nonimmigrant visas issued to nationals of Iran pursuant to section 101(a)(15)(A) of the Immigrant and Nationality Act [diplomatic provision]”); Public Notice, Revocation of Certain Nonimmigrant Visas, 46 Fed. Reg. 26976 (May 15, 1981) (noting that “[t]his action has been taken because of the general pattern of unacceptable conduct by the People’s Bureau of the Social People’s Libyan Arab Jamahiriya which is contrary to United States interest and in violation of acceptable norms of diplomatic behavior.”).
Diplomatic visas are sui generis from other classes of visas. The screening procedures are generally based on the applicant’s diplomatic credentials and the country’s diplomatic status with the U.S. in order to issue the visa. See INA § 101(a)(15)(A), 8 U.S.C. § 1101(a)(15)(A); 8 C.F.R. § 214.2(a)(1) (“A visas” for diplomats and certain recognized foreign government employees); see also INA § 101(a)(15)(G), 8 U.S.C. § 1101(a)(15)(G) (“G visas” for certain international organization members); 9 FAM 402.4. Furthermore, these revocations only occurred after the U.S. formally severed ties with a particular nation, consistent with international customary law and the Vienna Conventions on Diplomatic Relations and Consular Relations. See Introduction and Summary to Opinions of the Office of Legal Counsel Relating to the Iranian Hostage Crisis, 4A U.S. Op. Off. Legal Counsel 7, 84, 1894 WL 54314 (Oct. 1, 1984). 86 22 C.F.R. § 41.122(b)(1); 22 C.F.R. §§ 42.82(b). 87 22 C.F.R. § 41.122(c); 22 C.F.R. §§ 42.82(c). 88 AILA/DOS Liaison Meeting (Apr. 7, 2016), published on AILA Doc. No. 16041133. 89 See Smith v. United States, 508 U.S. 223, 234 (1993) (“Just as a single word cannot be read in isolation, nor can a single provision of a statute”); United Sav. Ass'n v. Timbers of Inwood Forest
24

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 37 of 47 PageID #: 1977
it does so explicitly, as in INA § 212(f), which permits the President to suspend entry for “any
aliens or of any class of aliens.”90 The term “class of aliens” is notably absent from INA § 221(i)
which only provides for the revocation of the visa of “any alien.”91 Reading INA § 221(i) as a
basis for DOS to revoke visas for classes of individuals under the language “any alien” would
render the language in INA § 212(f) suspending entry to “any alien or of any class of aliens,”
superfluous.92 Such a reading would allow the federal government to combine the authority to
“revoke visas” on an individualized basis93 and the authority to suspend entry for a “class of
aliens”94 to justify revoking visas on a classwide basis—an impermissible statutory authority
mashup. Such a reading therefore cannot be squared with the statute or regulations as a whole.
Legislative history also reveals that when drafting INA § 221(i), Congress considered
visa revocation to be an individualized procedure. Congress first recognized the authority of
DOS to revoke visas in 1952, when it passed the Immigration & Nationality Act (also known as
the McCarran-Walter Act), the text of which is included in section 221(i).95 The House
Assocs., 484 U.S. 365, 371 (1988) (“statutory construction, however, is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme”). 90 INA § 212(f). 91 INA § 221(i). 92 See Ratzlaf v. United States, 510 U.S. 135, 140 (1994); Kungys v. United States, 485 U.S. 759, 778 (1988) (Scalia, J., plurality opinion); South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 510 n.22 (1986) (for statutory interpretation canon of avoiding interpreting provision in a way that would render other provisions of the statute superfluous or unnecessary). 93 INA § 221(i); 22 C.F.R. §§ 41.122 and 42.82. 94 INA § 212(f). 95 The original text of Section 221(i) stated in full:
After the issuance of a visa or other documentation to any alien, the consular officer of the Secretary of State may at any time, in his discretion, revoke such visa or other documentation. Notice of such revocation shall be communicated to the Attorney General, and such revocation shall invalidate that visa or other documentation from the date of issuance: Provided, That carriers or transportation companies, and masters, commanding officers, agents, owners, charterers, or consignees,
25

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 38 of 47 PageID #: 1978
Committee on the Judiciary Report indicates that the drafters apparently considered, but never
implemented, the creation of a semi-judicial board similar to the Board of Immigration Appeals
that would have jurisdiction to review consular decisions pertaining to the granting or refusal of visas.96 The drafters of the statute however, declined to do so because they concluded that “the
Secretary of State will have under this bill ample authority to provide within the Department of
State for a system of cooperation . . . so as to be able to advise and assist such officers in reaching their decision in more complex individual cases pending before them.”97 Furthermore,
when the INA was amended in 2004 to make visa revocation a ground of deportability and to
drastically reduce judicial review of those visa decisions, the drafters explained that the changes
stemmed from concern about the threat posed by individuals who might take advantage of loopholes in the immigration system to remain in the country while on a revoked visa.98 Thus §
221(i) revocation has historically been understood by Congress to require individualized
determinations.
Finally, the canon of constitutional avoidance requires courts to read provisions so that
they do not pose constitutional questions. Clark v. Martinez, 543 U.S. 371, 380–81 (2005)
(“[w]hen deciding which of two plausible statutory constructions to adopt, a court must consider
shall not be penalized under section 273 (b) for action taken in reliance on such visas or other documentation, unless they received due notice of such revocation prior to the alien’s embarkation.” Immigration and Nationality Act of 1952, Pub. L. No. 414, 66 Stat. 192. 96 See H.R. Rep. No. 1365, at 36 (1952) (“[m]any suggestions were made to the committee with a view toward creating in the Department of State a semi judicial board, similar to the Board of Immigration Appeals, with jurisdiction to review consular decisions pertaining to the granting or refusal of visas . . .”). 97 See id. 98 See H. Rep. 108-723, pt. 5 at 189 (2004) (“The section will prevent an alien whose visa has been revoked to challenge the underlying revocation in court, where the government might again be placed in a position of either exposing its sources or permitting a potentially dangerous alien to remain in the U.S.”).
26

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 39 of 47 PageID #: 1979
the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems—the other should prevail.”); Pierre v. Holder, 738 F.3d 38, 48 (2d Cir. 2013). As petitioners ably argue, the Executive Order in this case has serious constitutional defects, which, in turn, infect the Visa Revocation Memo.
First, blatant animus towards Muslims motivates the EO and thus the Visa Revocation Memo, in violation of both the Establishment Clause of the First Amendment and the equal protection component of the Due Process Clause, both of which prohibit the government from disfavoring one religious group over another. Cf. Larson v. Valente, 456 U.S. 228, 244 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”); United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (“The Constitution’s guarantee of equality must at the very least mean that a bare [legislative] desire to harm a politically unpopular group cannot justify disparate treatment of that group.”). On December 7th 2015, then presidential candidate Donald Trump posted a press statement on his website that called for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”99 In a June 2016 speech responding to the terror attack in Orlando, Florida, Mr. Trump pledged to suspend immigration from areas of the world where there is a “proven history of terrorism against the United States, Europe, or our allies.”100 According to public statements by Mr. Trump’s advisor, Rudolph Giuliani, on the day the Executive Order was signed, this new formulation reflected an
99 Press Release, Donald J. Trump Statement on Preventing Muslim Immigration, (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslimimmigration 100 Press Release, Donald J. Trump Addresses Terrorism, Immigration and National Security, (June 13, 2016), https://www.donaldjtrump.com/press-releases/donald-j.-trump-addressesterrorism-immigration-and-national-security.
27

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 40 of 47 PageID #: 1980
instruction by Mr. Trump to his advisors to find a way to implement the “Muslim ban” “legally.”101
Second, the EO and thus the Visa Revocation Memo raise serious due process concerns. The Due Process Clause applies to all persons in the United States, regardless of immigration status. Zadvydas v. Davis, 533 U.S. 678, 693 (2001); Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007). A temporary absence from the country does not deprive residents of their right to due process. See, e.g., Landon v. Plasencia, 459 U.S. 21, 33 (1982) (“[T]he returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.”) (internal citation omitted). The EO and the Visa Revocation memo also infringe on the constitutionally protected liberty interest in travel. Kent v. Dulles, 357 U.S. 116, 125-26 (1958) (holding that Secretary of State could not deny passports to Communists on the basis that the right to travel abroad is a constitutionally protected liberty interest). Due process requires that lawful permanent residents and visa holders not be denied re-entry to the United States without “at a minimum, notice and an opportunity to respond.” United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014); Burger v. Gonzales, 498 F.3d 131 (2007). By providing neither, the EO and the Visa Revocation Memo contravene the Due Process Clause.
The federal government’s interpretation of its statutory authority under INA § 221(i) cannot be what Congress intended, as it results in the government violating the Constitution for the reasons stated above. Thus, applying the constitutional avoidance canon, the Court should read INA § 221(i) as requiring individualized visa revocation determinations.
101 Rebecca Savransky, Giuliani: Trump Asked Me How to do a Muslim Ban “Legally,” The Hill (Jan. 29, 2017), http://thehill.com/homenews/administration/316726-giuliani-trump-asked-mehow-to-do-a-muslim-ban-legally.
28

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 41 of 47 PageID #: 1981
In sum, the Visa Revocation Memo is an impermissible implementation of the EO and an impermissible attempt to fuse elements of INA § 212(f) with INA § 221(i)—two distinct statutory provisions, neither of which authorizes classwide visa revocation. Furthermore, the statutes and regulations governing visa revocations, as well as the canon of constitutional avoidance, only allow for individualized visa revocations.
III. The Visa Revocation Memo Has an Impermissibly Retroactive Effect In Light of Visa Holders’ Settled Expectations.
The classwide basis of the Visa Revocation Memo violates the principle that agency rules should be applied prospectively, not retroactively, absent express statutory authority. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“[A]dministrative rules will not be construed to have retroactive effect unless their language requires this result”). The presumption against retroactive rulemaking is rooted in critical interests in fairness and preserving settled expectations. As the Supreme Court has cautioned, “[r]etroactive statutes raise special concerns. ‘The Legislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals.’” I.N.S. v. St. Cyr, 533 U.S. 289, 315-16 (2001) (citations omitted).
“A statute, order, or edict ‘operates retroactively’ when it seeks to impose ‘new legal consequences to events completed before its’ announcement.” De Niz Robles v. Lynch, 803 F.3d 1165, 1168 (10th Cir. 2015) (Gorsuch, J.) (citing I.N.S. v. St. Cyr, 533 U.S. at 321). An agency generally does not act retroactively when it acts like a judge, that is, when it “appl[ies] preexisting rules of general applicability to discrete cases and controversies.” Id. at 1172. However, an agency acts like a legislator, rather than a judge, when it “announc[es] a new rule of general applicability.” Id. When acting like a legislator, an agency’s rules may have retroactive
29

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 42 of 47 PageID #: 1982
effect only when “that power is conveyed by Congress in express terms.” Bowen, 488 U.S., at 208; City of New York v. Permanent Mission of India to United Nations, 618 F.3d 172, 192 (2d Cir. 2010).
A statute may permit retroactivity for individuals while not allowing it for a class. The Supreme Court made this point in Bowen, where it forbid retroactive promulgation of cost-limit rules under a provision of the Medicare Act. 488 U.S., at 205. In that case, the Health Secretary attempted to reissue previously contested regulations that changed the method by which government reimbursements to health care providers would be calculated. Id. The Court explained that the language of the relevant provision clearly contemplated individualized assessment, noting both its use of the singular and observing that “it is difficult to see how a corrective adjustment could be made . . . without performing an individual examination of the provider’s expenditures in retrospect.” Id. Thus it was permissible for the Department of Health and Human Services (HHS) to request reimbursement from health care providers it determined, after individualized consideration, had been overcompensated by mistake. Id. at 209. But it was not permissible for HHS to change the rules for calculating cost-limits and then retroactively request reimbursements from every health care provider on the basis of that new rule. Id. In other words, while the provision in question permitted individualized reimbursement payments made on a case-by-case and backward looking basis, the provision did not authorize retroactivity in the agency’s rulemaking. Id.
Here, by categorically revoking the visas of nationals from the countries affected by the Executive Order without any individualized determination, the federal government is imposing new rules of general applicability that create new legal consequences for already settled behavior without express statutory authority to do so. The rationale for the anti-retroactivity rule is plainly
30

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 43 of 47 PageID #: 1983
present in this case. Under the Visa Revocation Memo, a broad class of visa holders face revocation of their right to live in and travel in and out of the United States. They lose the money they have spent on the visa process, the educational programs they have chosen to enroll in in the U.S., the jobs they have accepted, and the lives they are living in the U.S. based on a nonindividualized across-the board rule.
The Supreme Court has recognized the applicability of the anti-retroactivity principle in the specific context of a noncitizen facing a bar to travel due to a new rule. In considering a case where a permanent resident did not face deportation if he stayed in the U.S., but did if he traveled, the Court wrote:
Beyond genuine doubt, we note, the restraint [on travel placed] on lawful permanent residents like Vartelas ranks as a “new disability.” Once able to journey abroad to fulfill religious obligations, attend funerals and weddings of family members, tend to vital financial interests, or respond to family emergencies, permanent residents situated as Vartelas is now face potential banishment. Vartelas v. Holder, 566 U.S. 257, 267-68 (2012). The Visa Revocation Memo places this same disability on thousands of lawful permanent residents, F1 student visa holders, J1 academic exchange visa holders, H1-B employees and other visa holders. Having invited these persons into the United States and encouraged them to order their lives around properly issued visas, the Visa Revocation Memo has, at a minimum, revoked the visas that allow them to travel and, at worst, subjected them to potential deportation over a past fact—their nationality—that they are powerless to change. Id. (noting that it is no answer to the retroactivity problem to say that the individual could have chosen not to travel after the new rule was announced). See also Chew Heong v. United States, 112 U.S. 536, 539 (1884) (refusing to read statute as impairing the right to Chinese immigrants who lived in the United States to return to their homes following travel due to new statute that discriminated against persons of Chinese origin).
31

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 44 of 47 PageID #: 1984
The retroactive effects of the Visa Revocation Memo are devastating. If it is deemed valid, Shadi Heidarifar, the Iranian philosophy student previously introduced who spent three years researching schools and was admitted to New York University, must now either begin her student visa application process all over again or apply for higher education in a different country, resulting in a loss of thousands of dollars already spent, and the loss of potential tuition money for New York University.102 Murtadha al Tameemi, the Facebook engineer who has lived in Seattle for ten years, now risks invalidating his visa if he travels to nearby Vancouver to visit his family, who are also barred from coming to Seattle to see him.103 Douman Khoshbakhti’s parents, the American citizen whose parents had visas to join him to live in America, would not only be unable to see their son, but cannot roll back the clock to before they sold their sole source of income, a construction supply shop, to fund a trip to America.104 Dr. Kamal Fadlalla, the Sudanese medical resident, would no longer be able to return to his home, friends, patients, and life in the U.S.105 Part of the motivation for the presumption of nonretroactivity is to prevent a decisionmaker from “punish[ing] those who have done no more than order their affairs around existing law.” De Niz Robles v. Lynch, 803 F.3d at 1174-75 (Gorsuch, J.). In this case, the Visa Revocation Memo punishes immigrant and nonimmigrant visa holders who did nothing more than order their affairs and develop settled expectations under
102 Michael D. Shear & Nicholas Kulish, Judge Blocks Part of Trump’s Immigration Order, The Seattle Times (Jan. 29, 2017), http://www.seattletimes.com/nation-world/panic-at-airports-astrumps-order-blocks-immigrants/. 103 Julie Bort, This Iraqi Facebook Engineer was Invited to the US under President Bush, and Now He’s Feeling Trapped, Business Insider (Jan. 30, 2017), http://www.businessinsider.com/iraqi-facebook-engineer-caught-in-the-immigration-ban-2017-1. 104 Lives Rewritten with the Stroke of a Pen, N.Y. Times (Jan. 29, 2017), https://www.nytimes.com/interactive/2017/01/29/nyregion/detainees-trump-travel-ban.html. 105 Charles Ornstein, Trump’s Executive Order Strands Brooklyn Doctor in Sudan, ProPublica (Jan. 29, 2017), https://www.propublica.org/article/trumps-executive-order-strands-brooklyndoctor-in-sudan.
32

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 45 of 47 PageID #: 1985
the pre-order regime. In addition, the motivation behind the EO and the Memo reflect exactly what the Supreme Court has expressed worry about with retroactive legislation—that it could be used “as a means of retribution against unpopular groups or individuals.” St. Cyr, 533 at 315-16. Here, the EO and the Memo clearly reflect the administration’s animus against Muslim immigrants.
CONCLUSION The Visa Revocation Memo called for the immediate revocation of visas for countless individuals who are integral members of our society, causing great consternation and uncertainty among those affected as well as their loved ones in the U.S. and abroad. The federal government’s categorical, classwide visa revocation is an unauthorized implementation of an equally problematic Executive Order. It is not permitted by any statutory authority and is an indiscriminate blow to thousands of people who have invested time and resources in navigating the complex process of obtaining U.S. visas. For these reasons, amici support the relief sought by Petitioners and Intervenor-Plaintiff.
Dated: February 16, 2017
Respectfully submitted, /s/ Alina Das Alina Das, Esq. Nancy Morawetz, Esq. Sarika Arya, Law Student Intern Sonya Chung, Law Student Intern Terry Ding, Law Student Intern Zoe Engberg, Law Student Intern Angela Galdamez, Law Student Intern Frances Hartmann, Law Student Intern
33

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 46 of 47 PageID #: 1986 Rachel Levenson, Law Student Intern Oluwadamilola Obaro, Law Student Intern Sarah Thompson, Law Student Intern Victoria Yee, Law Student Intern Rhiya Trivedi, Law Student Intern Immigrant Rights Clinic Washington Square Legal Services 245 Sullivan Street, 5th Fl. New York, NY 10012 (212) 998-6467 alina.das@nyu.edu
34

Case 1:17-cv-00480-CBA Document 152 Filed 02/16/17 Page 47 of 47 PageID #: 1987

CERTIFICATE OF SERVICE I hereby certify that on February 16, 2017, I electronically filed the foregoing with the Clerk of the court for United States District Court, Eastern District of New York using the CM/ECF system. I certify that I am a registered CM/ECF user and that all parties have registered CM/ECF users and that service will be accomplished by the CM/ECF system.

DATED: February 16, 2017

Respectfully submitted,
/s/ Alina Das Alina Das Immigrant Rights Clinic Washington Square Legal Services 245 Sullivan Street, 5th Fl. New York, NY 10012 (212) 998-6467 alina.das@nyu.edu

 </s> Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 1 of 49 PageID #: 2101

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al.,
on behalf of themselves and others similarly situated,
Petitioners,
v.
DONALD TRUMP, President of the United States, et al.,
Respondents.

Case No. 1:17-cv-00480 (CBA)

PLAINTIFFS’ OPPOSITION TO THE MOTION TO DISMISS AND REPLY REGARDING PRELIMINARY INJUNCTION

Michael J. Wishnie (MW 1952) Muneer I. Ahmad†
Elora Mukherjee (EM 4011) Marisol Orihuela†
JEROME N. FRANK LEGAL SERVICES ORGANIZATION* YALE LAW SCHOOL‡
P.O. Box 209090
New Haven, CT 06520-9090
Phone: (203) 432-4800
Fax: (203) 432-1426
michael.wishnie@yale.edu

Lee Gelernt (LG-8511) Omar C. Jadwat (OJ-7025) Cecillia D. Wang (CW-8359) Andre I. Segura† AMERICAN CIVIL LIBERTIEs UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2600 lgelernt@aclu.org ojadwat@aclu.org cwang@aclu.org asegura@aclu.org

Counsel for Petitioners Additional Counsel Appear on next page

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 2 of 49 PageID #: 2102

Mark Doss Rebecca Heller Julie Kornfeld Stephen Poellot INTERNATIONAL REFUGEE ASSISTANCE PROJECT URBAN JUSTICE CENTER 40 Rector St, 9th Floor New York, NY 10006 Tel. (646)-602-5600 mdoss@refugeerights.org bheller@refugeerights.org jkornfeld@refugeerights.org spoellot@refugeerights.org
Karen C. Tumlin†† Nicholas Espíritu†† Melissa S. Keaney† Esther Sung† NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 1600 Los Angeles, CA 90010 Phone: (213) 639-3900 tumlin@nilc.org espiritu@nilc.org keaney@nilc.org sung@nilc.org
**Application for admission forthcoming. †† Appearing pro hac vice. ‡ For identification purposes only.

Jennifer Chang Newell†† Cody H. Wofsy†† AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Tel. (415) 343-0770 jnewell@aclu.org cwofsy@aclu.org
Jonathan Polonsky KILPATRICK TOWNSEND & STOCKTON LLP 1114 Avenue of the Americas New York, NY 10036-7703 Tel. (212) 775 8703 jpolonsky@kilpatricktownsend.com
Justin B. Cox† NATIONAL IMMIGRATION LAW CENTER 1989 College Ave. NE Atlanta, GA 30317 Phone: (678) 404-9119 cox@nilc.org

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 3 of 49 PageID #: 2103
TABLE OF CONTENTS INTRODUCTION…………………………………………………………………………….....1 STATEMENT OF THE CASE………………………………………………………………....3 LEGAL STANDARDS……………………………………………………………………….....5 ARGUMENT
I. The Case Is Not Moot……………………………………………………………..6 II. The Executive Order Discriminates on the Basis of Religion and Is Therefore
Unconstitutional………………………………………………………………….14 III. The Executive Order Unlawfully Deprives Class Members of Their Right to
Apply for Asylum and Withholding of Removal………………………………..25 IV. The Executive Order’s Discrimination on the Basis of Nationality Violates
Section 202 of the Immigration and Nationality Act…………………………….28 V. The Executive Order Violates Due Process……………………………………...30 VI. The Executive Order Violates the Administrative Procedure Act……………….33 VII. Other Preliminary Injunction Factors……………………………………………34 CONCLUSION…………………………………………………………………………………40
ii

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 4 of 49 PageID #: 2104
TABLE OF AUTHORITIES Cases Ali v. Trump, No. 17-0135 (W.D. Wash. Feb. 6, 2017)................................................................ 36 Am. Acad. of Religion v. Napolitano, 573 F.3d 115, 126 (2d Cir. 2009)...................................... 21 Amador v. Andrews, 655 F.3d 89, 99-101 (2d Cir. 2011)............................................................. 11 Ambrose v. Malcolm, 414 F. Supp. 485, 493 (S.D.N.Y. 1976) .................................................... 35 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ................................................................................... 6 Augustin v. Sava, 735 F.2d 32, 37 (2d Cir. 1984)......................................................................... 31 Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990),........................................................... 33 Aziz v. Trump, No. 17-0116 (E.D. Va. Feb. 13, 2017)......................................................... 2, 11,37 Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 715 (1994) ....................... 15 Campos v. Nail 43 F.3d 1285, 1288 (9th Cir. 1994)..................................................................... 27 Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016).................................................6 City of Boerne v. Flores, 521 U.S. 507, 516 (1997) ..................................................................... 26 City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) ............................................................ 14 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 534, 540 (1993)............................................................................................. 15 Comer v. Cisneros, 37 F.3d 775, 800 (2d Cir. 1994)................................................................. 8,10 County of Riverside v. McLaughlin, 500 U.S. 44, 51-52 (1991) .................................................. 10 Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 809 (1989)................................................. 30 Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)................................................ 21 Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003), ...................................................................... 32 Dolan v. Connolly, 794 F.3d 290, 293 (2d Cir. 2015) .................................................................... 6 Etuk v. Slattery, 936 F. 2d 1433, 1441-43 (2d Cir. 1991)............................................................... 8 Ezeagwuna v. Ashcroft, 325 F.3d 396, 400, 405 (3d Cir. 2003)....................................................31
iii

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 5 of 49 PageID #: 2105
F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) .............................................. 34 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)................................................................................................................ 8 Gerstein v. Pugh, 420 U.S. 103, 110-11 (1975) ........................................................................... 35 Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1038 (5th Cir. 1982) ........................................... 31 Hassan v. City of New York, 804 F.3d 277, 290 n.2 (3d Cir. 2015) ............................................. 15 Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010) .......................................................22 Hunter v. Underwood, 471 U.S. 222, 227-28 (1985) ................................................................... 15 Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 997 (9th Cir. 2012), ..................................... 32 INS v. Cardoza-Fonseca,480 U.S. 421, 444 (1987) ..................................................................... 27 INS v. Chadha,462 U.S. 919, 940-41 (1983) ................................................................................ 24 Jankowski-Burczyk v. INS, 291 F.3d 172, 178 (2d Cir. 2002) ...................................................... 24 Judulang v. Holder, 565 U.S. 42, 53 (2011)................................................................................. 34 Kerry v. Din, 135 S. Ct. 2128, 2141 (2015).................................................................................. 21 Kone v. Holder, 596 F.3d 141, 147 (2d Cir. 2010) ....................................................................... 27 Kowalczyk v. INS, 245 F.3d 1143, 1146-49 (10th Cir. 2001) ....................................................... 31 Lamont v. Woods, 948 F.2d 825, 835 (2d Cir. 1991).................................................................... 24 Landon v. Plascencia, 459 U.S. 21, 33-34 (1982) ........................................................................ 32 Larson v. Valente, 456 U.S. 228, 246 (1982), .............................................................................. 14 Loughalam v. Trump, No. 17-10154 (D. Mass. Feb. 3, 2017)................................................ 36, 38 Manwani v. U.S. Dep’t of Justice, 736 F. Supp. 1367, 1381 (W.D.N.Ca. 1990) ......................... 32 Mitchell v. Cuomo, 748 F. 2d 804, 806 (2d Cir. 1984), ................................................................ 35 Moore v. Consolidated Edison Co. of New York, Inc., 409 F. 3d 506 (2d Cir. 2005) .................. 35 Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 553 (9th Cir. 1990)....................................... 27 Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 487 (1997) ......................................................... 18 Robidoux v. Celani, 235 F.3d 115, 125 (2d Cir. 2000)................................................................. 24
iv

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 6 of 49 PageID #: 2106
Rojas-Reyes v. INS, 135 S. Ct. 2128, 2141 (2015) ....................................................................... 21 Romero v. INS, 399 F.3d 109, 112 (2d Cir. 2005) ........................................................................ 30 Romer v. Evans, 517 U.S. 620, 634-35 (1996) ............................................................................. 21 Salazar v. King, 822 F.3d 61, 73 (2d Cir. 2016)........................................................................... 10 Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993)......................................................... 28 Texas Monthly v. Bullock, 489 U.S. 1, 20 (1989), ........................................................................ 17 UBS Fin. Servs., Inc. v. W. Va. Univ. Hosps., Inc., 660 F.3d 643, 648 (2d Cir. 2011) ...................6 United States v. Brown, 352 F.3d 654, 668 (2d Cir. 2003) (same)............................................... 14 United States v. Lue, 134 F.3d 79, 86 (2d Cir. 1998) ................................................................... 24 United States v. Robel, 389 U.S. 258, 264 (1967) ........................................................................ 22 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977). ................ 15 Washington v. Trump, F.3d, 2017 WL 526497 (9th Cir. 2017)............................................. passim White v. Mathews,559 F.2d 852, 857 (2d Cir. 1977) ...................................................................... 9 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) ........................................................ 6 Yiu Sing Chun v. Sava, 708 F.2d 869, 876 (2d Cir. 1983) ............................................................ 27 Yuen Jin v. Mukasey, 538 F.3d 143, 158-60 (2d Cir. 2008) ......................................................... 24 Zadvydas v. Davis, 533 U.S. 678,695 (2001) ............................................................................... 24 Statutes and Regulations 5 U.S.C. § 706(2)(A)………………………………………………………………………3, 30, 33 5 U.S.C. § 706(2)(B)…………………………………………………………………………..3, 34 5 U.S.C. § 706(2)(C)……………………………………………………………………………....3 5 U.S.C. § 706(2)(D)……………………………………………………………………………....3 8 U.S.C. § 1101(a)(13)(A)………………………………………………………………………...7 8 U.S.C.§1227(a)(1)(B)……………………………………………………………………...…..14 8 U.S.C. § 1182(f)…………………………………………………………..........................passim
v

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 7 of 49 PageID #: 2107 42 U.S.C. §2000bb et seq………………………………………………………………………...26 42 U.S.C. § 2000cc et seq………………………………………………………………………..26 8 U.S.C. 1158(a)…………………………………………………………………………………26 8 U.S.C. § 1231(b)(3)………………………………………………………………………..26, 36 8 U.S.C. § 1231(b)(3)(A)………………………………………………………………………...26 8 U.S.C. § 1158(a)(1)…………………………………………………………………………….27 8 U.S.C. § 1225(b)(1)(A)(ii)……………………………………………………………………..27 8 C.F.R. § 235.3(b)(4)……………………………………………………………………………27 INA § 202(a)(1)(A), 8 U.S.C. § 1152(a)(1)(A)……………………………………………...28, 29 8 U.S.C. § 1152(a)(1)(B)………………………………………………………………………...29 8 U.S.C. § 1158…………………………………………………………………………………..36
vi

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 8 of 49 PageID #: 2108
Plaintiffs hereby oppose the government’s motion to dismiss and reply to the government’s memorandum in opposition to a preliminary injunction.
INTRODUCTION This case involves a challenge to Executive Order No. 13769 by individuals who have reached or will reach United States soil. As such, it is far narrower and more straightforward than virtually every other case around the country challenging the Executive Order, including the State of Washington’s case, in which the Ninth Circuit issued a preliminary injunction barring enforcement of the Executive Order as to individuals on U.S. soil and those abroad who have never traveled to the United States. Washington v. Trump, __F.3d __, 2017 WL 526497 (9th Cir. 2017). The Executive Order bars certain noncitizens from entering the country for varying lengths of time. Specifically, it bars refugees from entering for 120 days; immigrant (i.e., green card) and nonimmigrant (i.e., temporary visitor) visa holders from seven Muslim-majority countries for 90 days; and Syrian refugees indefinitely. In addition, the Order is designed to disfavor Muslim refugees and to favor Christian refugees. In its short period of operation, before being enjoined by this and other courts, the ban placed people at risk of persecution and torture, separated families, disrupted workplaces, and interfered with courses of study. By design, the ban has disproportionately impaired the rights of Muslims; although ostensibly justified on the basis of national security, the Executive Order seeks to fulfill the President’s campaign promise to ban Muslim entry to the country, and that repeatedly expressed intention is evident on the face of the Order.
1

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 9 of 49 PageID #: 2109
There is no question that the plaintiffs in this case, individuals who are or will be on U.S. soil, are entitled to statutory rights, including, most importantly, the right to apply for persecution-related relief. There is likewise no question that plaintiffs have constitutional rights, including the right to be free from religious discrimination and the right to due process. And as both the Ninth Circuit and a Virginia district court recently held, these rights cannot simply be discarded by the President, regardless of what authority he invokes. Washington, 2017 WL 526497 at *9 (“[T]he government has failed to establish that it will likely succeed on its due process argument in this appeal.”); Aziz v. Trump, No. 17-0116 at *20 n.11 (E.D. Va. Feb. 13, 2017) (order granting preliminary injunction) attached as Ex. A to Decl. of Nicholas Espíritu (“Espíritu Decl.”).
That is particularly so where, as here, the President has offered no evidence that the ban is necessary to protect national security; indeed the only evidence in the record regarding national security is the uncontradicted declaration of 10 national security professionals, including two former Secretaries of State, who explain that this unprecedented ban is not only unnecessary to protect national security, but is actually counterproductive. See Espíritu Decl. Ex. B (Joint Declaration of Madeleine K. Albright, et al. in Washington v. Trump, No. 17-35105 (9th Cir., filed Feb. 6, 2017)); see also Dkt. No. 137 (Amicus Brief of Former National Security Officials). As the Ninth Circuit stated: “Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.” Washington, 2017 WL 526497 at *10; see also Aziz, No. 17-0116 at 17 (“Defendants have not . . . produced any evidence, beyond the text of the EO itself, to support their contention that the EO was primarily motivated by national security concerns.”).
2

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 10 of 49 PageID #: 2110
Given that this case concerns only those individuals who have reached or will reach U.S. soil, the government understandably devotes comparatively little space to the merits, and instead argues that the case is moot. But the case is not moot under well-established Second Circuit law, because this is a putative class action involving highly transitory claims in which the two named plaintiffs received (incomplete) relief only after the class certification motion was filed. The Second Circuit has stressed repeatedly that the government should not be permitted to moot a case by granting relief to the named plaintiffs after a class certification motion is filed, especially where, as here, the claims are inherently transitory and the putative class includes future members as well as those already affected by the challenged policy.
The Court should deny the government’s motion to dismiss. It should also grant a preliminary injunction in light of the heavy vetting of individuals who have reached or will reach the United States, the inevitable chaos that will ensue if the ban is allowed to take effect again, and the irreparable harm that many plaintiffs would face.
STATEMENT OF THE CASE Approximately twelve hours after the Executive Order was signed, plaintiffs Darweesh and Alshawi brought this action on behalf of themselves and those similarly situated, seeking to enjoin the operation of the Order against those who had reached or would reach U.S. soil. Dkt. No. 1. Plaintiffs assert statutory and constitutional claims, including the denial of the statutory right to apply for asylum and similar forms of relief from persecution; the denial of due process; the denial of equal protection; and the violation of the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)-(D) (prohibiting, inter alia, action that is arbitrary, capricious, an abuse of discretion, or contrary to constitutional right). Id. Plaintiffs simultaneously filed for class certification. Dkt. No. 4.
3

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 11 of 49 PageID #: 2111
As alleged in the complaint, President Trump signed the Executive Order on January 27, 2017, one week after assuming office. Dkt. No. 1 ¶¶ 12, 13. The Order, inter alia, invokes Immigration and Nationality Act (“INA”) Section 212(f), 8 U.S.C. § 1182(f), as authority to suspend the entry into the United States of refugees, including Syrian refugees indefinitely, as well as of noncitizens from seven designated countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. Dkt. No. 1 ¶¶ 14-16; see also Executive Order, Dkt. No. 2 Ex. A (“Order”). Within hours of the Order being signed, there were numerous individuals—to whom the United States had already granted visas, permanent residency, or refugee status after extensive vetting— detained and questioned by immigration officers, denied entry to the United States, and subjected to the threat of removal because of the Executive Order. Dkt. No. 1 ¶ 55.
Mr. Darweesh, for example, held an Iraqi Special Immigrant Visa, granted to him based on his ten years of service to the U.S. government (including the U.S. military) and the threats to his life and well-being that he suffered as a result. Id. ¶¶ 17-22. The process for obtaining that visa involved securing a statement from the U.S. government that he had provided “faithful and valuable service” to the government and waiting over two additional years for his and his family’s visas to be processed. Id. ¶¶ 23-30. Despite holding a valid visa, Mr. Darweesh was detained by the government on his arrival in the United States and remained detained at the time the complaint was filed. Id. ¶ 31. He was denied access to his attorneys and was at risk of being returned to Iraq against his will despite the serious danger to his life in that country. Id. ¶¶ 3238.
Similarly, Mr. Alshawi arrived in the United States carrying a valid immigrant visa, granted by the U.S. government to reunite him with his wife and seven-year-old son, both of whom are lawful permanent residents. Id. ¶¶ 39-42, 45. Ms. Alshawi, Mr. Alshawi’s wife,
4

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 12 of 49 PageID #: 2112
worked for a U.S. contractor in Iraq, and her family was targeted because of that association. Id. ¶¶ 43-44. She and their son were granted refugee status, and Mr. Alshawi was approved to enter the United States to join them. Id. ¶¶ 45-46. Like Mr. Darweesh, however, Mr. Alshawi was detained upon arrival, refused access to his attorneys, and was at risk of removal at the time the complaint was filed. Id. ¶¶ 48-53. When Mr. Alshawi’s attorneys sought to speak with their client, a government agent told them that the person to talk to was “Mr. President. Call Mr. Trump.” Id. ¶ 51. Other class members were similarly detained and at risk of removal. Id. ¶ 55.
Shortly after filing their complaint and motion for class certification, plaintiffs filed a motion seeking a stay of removal. Dkt. No. 6. After a hearing held on the evening of January 28, 2017, Judge Donnelly enjoined removals of individuals designated in the Order but otherwise entitled to enter the United States, concluding that plaintiffs had a “strong likelihood of success” on the merits, that there was “imminent danger” of “substantial and irreparable injury to refugees, visa-holders, and other individuals” subject to the Order, and that a stay of removal would not “injure the other parties interested in the proceeding.” Dkt. No. 8. Judge Donnelly also found a likelihood of success that class certification would be granted. Conference Tr. Jan. 28, 2017, at 13. The government has opposed the maintenance of this order, and has moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
LEGAL STANDARDS In considering a motion to dismiss, the Court must construe the complaint liberally, accept all non-conclusory factual allegations as true, and draw all reasonable inferences in the plaintiffs’ favor. Dolan v. Connolly, 794 F.3d 290, 293 (2d Cir. 2015). The complaint need allege only enough facts to “state a claim to relief that is plausible on its face,” meaning “factual content that allows the court to draw the reasonable inference that the defendant is liable for the
5

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 13 of 49 PageID #: 2113
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As shown below, plaintiffs’ allegations state both constitutional and statutory claims. Similarly, in considering a motion to dismiss under Fed. R. Civ. P. 12(b)(1), “plaintiffs are entitled to rely on the allegations in the Pleading if the evidence proffered by the defendant is immaterial” to the question of subject matter jurisdiction. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016).
The familiar four-part test governs the issuance of a preliminary injunction: the plaintiff must show (1) he is “likely to succeed on the merits,” (2) he is “likely to suffer irreparable harm in the absence of preliminary relief,” (3) “the balance of equities tips in his favor,” and (4) “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Alternatively, the Court may award an injunction if the plaintiff demonstrates irreparable harm and “sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” UBS Fin. Servs., Inc. v. W. Va. Univ. Hosps., Inc., 660 F.3d 643, 648 (2d Cir. 2011) (internal quotation marks omitted). Because the merits questions under this analysis substantially overlap with the merits questions presented by the motion to dismiss, plaintiffs will address them together.
ARGUMENT I. THE CASE IS NOT MOOT.
The government contends that the case is moot and the Court therefore lacks jurisdiction under Fed. R. Civ. P. 12(b)(1) because the two named plaintiffs have now been admitted to the United States. Resp’ts’ Mem. of Law in Supp. of Mot. to Dismiss, Dkt. No. 66-1 (“Gov’t Br.”) at 5. That contention is wrong under well-settled law, for two reasons. First, the claims of the named plaintiffs themselves are not moot because the relief they have received represents only a
6

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 14 of 49 PageID #: 2114
voluntary cessation of the challenged policy. Second, the government cannot moot a class action by granting relief to the named plaintiffs after the complaint and class certification motion have been filed, where, as here, the claims are inherently transitory.
The government argues in the alternative that even if the circumstances of putative class members should be considered, the case should still be deemed moot because no class member is currently detained. That alternative argument is likewise wrong, for two independent reasons. First, this case challenges the Executive Order’s ban on class members’ entry or admission to the United States,1 not simply their detention incident to the denial of admission—a point the government implicitly recognizes by repeatedly stating that the named plaintiffs’ cases are moot because they have been “admitted.” Gov’t Br. 1, 6, 7-8. The government has not suggested that all those subjected to the Executive Order have been admitted to the United States, and contends only that the putative class members are no longer detained. Second, the class is defined as all those who are or “will be” subjected to the Executive Order. Dkt. No. 4 ¶ 7. Consequently, even if the case concerned only detention, and not admission, the case would not be moot because, absent an injunction, individuals traveling to the United States in the future will be detained and removed—a point the government does not, and could not, dispute.
A. Named Plaintiffs’ Claims Are Not Moot Under The Voluntary Cessation Doctrine.
The Supreme Court has explained that it is “well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (citation and internal quotation marks omitted). As the Court has emphasized, 1 The Executive Order mentions both “entry” and “admission.” See, e.g., Order §§ 1, 3. The INA defines admission as the lawful entry of a noncitizen into the United States after inspection and authorization by an immigration officer. 8 U.S.C. § 1101(a)(13)(A).
7

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 15 of 49 PageID #: 2115
“the standard we have announced for determining whether a case has been mooted by the defendant’s voluntary conduct is stringent,” and a case may only become moot if “subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. at 189 (citation and internal quotation marks omitted). Notably, “[t]he ‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” Id. (citation omitted); see also id. at 190 (describing “the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur”); Comer v. Cisneros, 37 F.3d 775, 800 (2d Cir. 1994) (discussing defendants’ “very heavy burden”); Etuk v. Slattery, 936 F. 2d 1433, 1441-43 (2d Cir. 1991) (holding that it is the defendants’ burden to show there is no reasonable expectation that they would re-impose the challenged practice and that absent an “unambiguous assurance that [defendants] will not revert to its old policies, plaintiffs plainly have a continuing stake in the outcome of this litigation”); Aziz, No. 17-0116 at 3; Washington v. Trump, 2017 WL 526497 at *8.
The government has not met its “formidable” burden here. Notably, although the government has admitted the named plaintiffs, the Executive Order has not been rescinded, and the government continues to claim the unreviewable authority to deny entry to the noncitizens specified in Section 3(c), including the named plaintiffs.2 It is only by virtue of the stay issued in this case and the preliminary injunctions in Washington and other cases that the government has currently ceased to apply the Executive Order. As a result, plaintiffs are unable to leave the
2 The Executive Order on its face covers lawful permanent residents and was originally applied to them. As other courts have noted, the Order has not been revised and the statement from White House counsel that the Order no longer covers lawful permanent residents is not binding. See Washington, 2017 WL 526497 at *8; Aziz, No. 17-0116 at 3-4 (citing Washington, 2017 WL 526497 at *8).
8

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 16 of 49 PageID #: 2116
United States without the risk that they will be denied boarding onto a flight back to the United States on the basis of the Executive Order, or, should they be able to return to a U.S. port of entry, the risk that they will be detained and removed pursuant to the Executive Order. The named plaintiffs’ activities thus continue to be constrained by the challenged policy.3
B. Because Plaintiffs’ Claims Are Inherently Transitory, The Government Cannot Moot The Case By Granting Relief To The Named Plaintiffs After The Complaint And Class Certification Motion Were Filed.
Even assuming the named plaintiffs’ claims were moot, the Second Circuit has repeatedly made clear that the government should not automatically be able to moot a case by granting relief to named class members after the filing of a complaint and class certification motion, even if a class certification motion has not yet been granted. As the Second Circuit has held, the government’s mooting of a class representative’s claims will not moot a class action where the claims are inherently transitory. Any other rule would mean that the government’s actions in such cases could effectively be insulated from review. See, e.g., White v. Mathews, 559 F.2d 852, 857 (2d Cir. 1977) (explaining that otherwise, the government “could avoid judicial scrutiny of its procedures by the simple expedient of granting [relief] to plaintiffs who seek, but have not yet obtained, class certification”).
The well-established rule is that “[w]here class claims are inherently transitory, the termination of a class representative’s claim does not moot the claims of the unnamed members of the class.” Robidoux v. Celani, 987 F.2d 931, 938-39 (2d Cir. 1993) (citation and internal quotation marks omitted). Thus, “[e]ven where the class is not certified until after the claims of the individual class representatives have become moot, certification may be deemed to relate
3 Currently, the district court’s preliminary injunction in the Washington case, which the Ninth Circuit refused to stay, would likely permit plaintiffs’ return if they traveled abroad, but the Administration is challenging that ruling.
9

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 17 of 49 PageID #: 2117
back to the filing of the complaint in order to avoid mooting the entire controversy.” Id. at 939 (citing County of Riverside v. McLaughlin, 500 U.S. 44, 51-52 (1991)); see also Salazar v. King, 822 F.3d 61, 73 (2d Cir. 2016) (“The exception to the mootness doctrine for ‘inherently transitory’ claims asserted by the named plaintiff(s) in a class action allows such claims to ‘relate back’ to the time of the filing of the complaint with class allegations.”). Not only does this doctrine prevent defendants from defeating judicial review, but it ensures that “a district court [will] have enough time to consider these important issues of class status carefully . . . .” White, 559 F.2d at 857. Notably, the government ignores this rule, Gov’t Br. 8, even though the main case on which it relies, Comer v. Cisneros, 37 F.3d 775, 799 (2d Cir. 1994), makes clear that “[w]here the claims of the named plaintiffs become moot prior to class certification, there are several ways in which mootness is not had,” including if the claims are inherently transitory.
Under the “inherently transitory” exception, “a case will not be moot, even if the controversy as to the named plaintiffs has been resolved, if: ‘(1) it is uncertain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class; and (2) there will be a constant class of persons suffering the deprivation complained of in the complaint.’” Salazar, 822 F.3d at 73 (citations omitted).
Here, there is no dispute that the named plaintiffs had standing to bring their claims at the time the complaint was filed. The class claims are inherently transitory because the government could detain, exclude, and remove countless noncitizens before this Court has an opportunity to rule on class certification. Alternatively, as it has done with the named plaintiffs, the government could choose to admit noncitizens covered by the Executive Order. In either event, the period is likely to be too short to allow for adjudication of the class certification motion. See Salazar, 822 F.3d at 74 (holding that the inherently transitory exception applied because the
10

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 18 of 49 PageID #: 2118
defendant federal agency “processes . . . applications . . . relatively quickly,” such that the named plaintiffs received relief after filing of the complaint and before class certification could be decided); Robidoux, 987 F.2d at 939; Amador v. Andrews, 655 F.3d 89, 99-101 (2d Cir. 2011) (applying “inherently transitory” exception to prison policy challenge, even though class representatives had been released after filing of complaint).
The “inherently transitory” exception applies with special force here because of the practical constraints on identifying affected class members before their claims become moot. The government does not allow lawyers and family members into the area of the airport where “secondary inspection” occurs. See Temporary Restraining Order, Aziz v. Trump, No. 1:17-cv116 (E.D. Va. Jan. 28, 2017) (ordering respondents to allow attorneys access to petitioners detained at Dulles International Airport). Indeed, the only individuals likely to be able to effectively seek relief are those who, like the named plaintiffs, had preexisting attorney-client relationships and could have their attorneys file immediately, before they were removed.
Further, as shown below, there is no question that, in the absence of an injunction, “there will be a constant class of persons” subject to the challenged provisions of the Executive Order. Salazar, 822 F.3d at 74. Regardless of whether the government is currently detaining anyone under the Executive Order, if the injunctions were lifted, the government could continue to detain, deny admission to, and remove noncitizens who reach American soil in the future.
Thus, under settled Second Circuit law, the government is incorrect that this case is moot because the two named plaintiffs were granted partial relief after the filing of the complaint.
C. The Putative Class Members’ Claims Are Not Moot.
11

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 19 of 49 PageID #: 2119
The government argues, in the alternative, that even if the circumstances of putative class members should be considered, the case should still be deemed moot because no class member is currently detained. Gov’t Br. 9. That is wrong for three reasons.
1. The government’s affidavit states only that no individual is currently “detained.” See Gov’t Br., Exhibit A. But even assuming that there is no one currently detained, that does not moot the case, because this case challenges the denial of entry or admission under the Executive Order, including those who were detained and excluded under the Executive Order and have not been subsequently admitted. See, e.g., Complaint, Dkt. No. 1 ¶ 56 (“Each of these similarly situated individuals is entitled to bring a petition for a writ of habeas corpus or, in the alternative a complaint for declaratory and injunctive relief, to prohibit the policy, pattern, and practice of Respondents detaining class members and prohibiting class members from entering the United States . . . .”). Indeed, the government appears to recognize that the case is about detention and admission in that the government repeatedly notes that the named plaintiffs have been “admitted.” Gov’t Br. 1, 6, 7-8. Any other understanding of the case would make little sense, since plaintiffs then would be agreeing that they could be stripped of their visas and/or removed. The government, which has yet to produce the list of those detained under the Executive Order, as ordered by Judge Donnelly, Dkt. No. 8, does not claim that every individual subjected to the Executive Order in the past has been admitted.4
2. The government’s argument is also wrong because the class includes individuals who in the future will be subjected to the Executive Order. See Complaint, Dkt. No. 1 ¶ 56 (defining class to include specified individuals who “will be denied entry to the United States on the basis
4 The government has worked with plaintiffs’ counsel to facilitate the return of individuals plaintiffs’ counsel have brought to their attention, but in the absence of the list, there is an indeterminate number of individuals who have not been able to return.
12

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 20 of 49 PageID #: 2120
of the January 27, 2017 Executive Order”) (emphasis added); Class Cert. Mot., Dkt. No. 4 ¶ 7 (same). The government has conspicuously not stated that if the injunction is lifted, it will refrain from applying the Executive Order to individuals who in the future reach United States soil. As noted in plaintiffs’ motion for class certification, based on statistics compiled by the Department of State from Fiscal Year 2015, about 25,317 individuals from Iraq, Syria, Sudan, Yemen, Iran, Libya, and Somalia typically enter the United States on non-immigrant, special immigrant, and refugee visas within a given 90 days (the duration of the ban on entry of noncitizens from these countries)—a figure which does not account for the large number of other immigrant visas holders. See Class Cert. Mot., Dkt. No. 4 ¶ 26 & n.2. Indeed, plaintiffs would welcome a binding statement from the government that the Executive Order will not be applied in the future to any individual who reaches United States soil.
3. Finally, the government’s argument fails to account for the continuing effects of the Executive Order on class members who have been admitted. As noted above with respect to the named plaintiffs, noncitizens in the United States and subject to the Executive Order are precluded from traveling abroad. Moreover, under the Executive Order, the government revoked the visas of at least 60,000 people.5 The visa revocation not only would preclude plaintiffs from traveling abroad, but could also subject them to deportation.6
5 See Espíritu Decl. Ex. C (Justin Jouvenal, Rachel Weiner & Ann E. Marimow, Justice Dept. Lawyer Says 100,000 Visas Revoked Under Travel ban; State Dept. says About 60,000, Wash. Post (Feb. 3, 2017)). The government has temporarily lifted that visa revocation, following the injunction issued by the district court in Washington. Dkt. No. 50, Attachment 1. 6 Section 237(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C.§ 1227(a)(1)(B), provides: “Any alien . . . whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i), is deportable.” The visa revocation ordered pursuant to the Executive Order invoked §221(i). See Dkt. No. 20-1.
13

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 21 of 49 PageID #: 2121
In short, under settled law, the government cannot moot this case by providing relief to the named plaintiffs after the filing of the class certification motion. Any other rule would allow the government to effectively insulate its actions from review, especially in cases, like this one, where the claims are inherently transitory and the government controls access to the affected individuals. II. THE EXECUTIVE ORDER DISCRIMINATES ON THE BASIS OF RELIGION
AND IS THEREFORE UNCONSTITUTIONAL. Government conduct that prefers one religion over another strikes at one of the founding principles of this country and violates the guarantee of equal protection provided by the Due Process Clause. The Constitution “mandates governmental neutrality between religion and religion” and the government “may not adopt programs or practices . . . which . . . oppose any religion,” a prohibition which is “absolute.” Larson v. Valente, 456 U.S. 228, 246 (1982) (Establishment Clause) (internal quotation marks omitted); see also City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam) (equal protection); United States v. Brown, 352 F.3d 654, 668 (2d Cir. 2003) (same); Aziz, No. 17-0116 at 13-14 (in discussing Establishment Clause claim, noting the “message of exclusion” when the government acts to disfavor a religion). “[T]he Religion Clauses . . . and the Equal Protection Clause as applied to religion . . . all speak with one voice on this point: Absent the most unusual circumstances, one’s religion ought not affect one’s legal rights or duties or benefits.” Hassan v. City of New York, 804 F.3d 277, 290 n.2 (3d Cir. 2015) (quoting Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 715 (1994) (O’Connor, J., concurring in the judgment) (alterations in original, internal
14

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 22 of 49 PageID #: 2122
quotation marks omitted)); see also Washington, 2017 WL 526497 at *10; Brown, 352 F.3d at 669 n. 18.7
The Executive Order violates the Constitution because it discriminates on the basis of religion by disfavoring Muslims, favoring Christian refugees, and drawing an arbitrary line between majority and minority religions. This discrimination is clear whether one looks at the voluminous evidence prior to the signing of the Order or at the Order itself. See Hunter v. Underwood, 471 U.S. 222, 227-28 (1985); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977).
In seeking to dismiss plaintiffs’ religious discrimination claim, the government incorrectly suggests that the Court may apply only a deferential standard of review. Gov’t Br. 11. Assuming, arguendo, a deferential standard applies, the Order would not survive because it is arbitrary and designed to discriminate. The proffered national security rationale is not “bona fide” and does not hold up to even rational basis scrutiny, and there is overwhelming evidence to establish discriminatory intent behind the Executive Order. Moreover, the government’s assertion that the “subjective motivations for enacting the Executive Order” are “irrelevant,” and that therefore the Court cannot go beyond the four corners of the Order to evaluate its constitutionality, Gov’t. Br. 13, is wrong as a matter of law, as two courts have already held. Washington v. Trump, 2017 WL 526497 at *10 (“It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”); Aziz, No. 17-0116 at 14 (similarly rejecting the argument “that the Court may not go beyond the text of the EO in assessing its purpose”).
7 Courts rely on the shared principles of these constitutional provisions in adjudicating claims. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 534, 540 (1993) (discussing common thread in equal protection and the Religion Clauses).
15

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 23 of 49 PageID #: 2123
A. The Order Is Arbitrary And Discriminatory On Its Face. The plain language of the Executive Order evinces religious discrimination. The Order repeatedly employs barely veiled references to stereotypes regarding Islam. The Order invokes terms singling out and disparaging Muslims, such as references to “honor killings,” Order §§ 1, 10(a)(iii); “violent ideologies,” Order § 1; “persecution of those who practice religions different from their own,” Order § 1; and “foreign nationals” being “radicalized,” Order § 10(a)(ii). These terms should be recognized for what they are: statements that this Order is directed at individuals of a particular, disfavored faith. See Lukumi, 508 U.S. at 534 (statute’s use of the purportedly neutral terms “sacrifice” and “ritual” was evidence of singling out a particular religion). The derogatory reference to Islam was even clearer in a prior draft of the Order, which was publicly leaked days before the final Order was signed. That draft—the effective equivalent of the legislative history of this Order—included the phrase “violent religious edicts.” Espíritu Decl. Ex. D § 1. While these references are clear enough on their own terms, their meaning becomes undeniable when read against the backdrop of the President’s prior statements regarding Islam, discussed below, which invoke the same false and dangerous stereotypes about Muslims. Infra Section B; cf. Lukumi, 508 U.S. at 534-35 (examining statements made leading up to enactment of purportedly neutral law in concluding that object was to target a particular religion). The Order also establishes explicit preferences based on religion, arbitrarily favoring “minority” religions over “majority” religions in determining who will be admitted to this country as a refugee. See Order § 5(b) (directing officials to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality”); id. § 5(e) (similar). This ranking of religions is further intrinsic evidence of intent to target Muslims. But it is also
16

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 24 of 49 PageID #: 2124
an independent violation. The government may not make “explicit and deliberate distinctions between different religious organizations,” as the Order does between minority and majority religions. Larson, 456 U.S. at 245-46 & n.23 (striking down statutory discrimination between religions based on the source of their contributions, observing that political leaders “are required to accord to their own religions the very same treatment given to small, new, or unpopular denominations”).
Any government determination of what constitutes “majority” and “minority” religions in a given country will also lead to impermissible government entanglement with religion. See Texas Monthly v. Bullock, 489 U.S. 1, 20 (1989) (plurality opinion). Government agents might need to determine, for example, whether various combinations of Catholics, Orthodox Christians, Protestants, Methodists, Anglicans, Baptists, Mormons, Jehovah’s Witnesses, and dozens or hundreds of other groups professing belief in Jesus are adherents to the “same” or “different” religions in order to determine whether an individual’s religion is the majority or the minority in a particular country. Similar lines would need to be drawn with regard to Muslim denominations, and those of other faiths. To make such decisions, the government would be required to consider the beliefs and practices of a sect in comparison to those of other sects to decide whether an individual is of a “majority” or “minority” religion. The Constitution does not tolerate this level of government entanglement with the nuance of religious belief. Id.
B. There Is Overwhelming Evidence Of Intent To Discriminate On The Basis Of Religion.
“Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights, 429 U.S. at 266; see also Lukumi, 508 U.S. at 540 (same). Case law identifies a variety of factors that can be probative of a discriminatory purpose, including the nature and
17

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 25 of 49 PageID #: 2125
degree of the disparate impact produced by the challenged law; the historical background and specific series of events leading to the law’s enactment; the legislative or administrative history, including contemporaneous statements made by the decisionmaker(s); and any departures from normal processes or substantive considerations. Lukumi, 508 U.S. at 540; Arlington Heights, 429 U.S. at 266-68; McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 861-66 (2005). This list of factors is nonexhaustive. Arlington Heights, 429 U.S. at 268. As the Court found in the Virginia case, the task here is “determining whether the proffered reason for the EO is the real reason.” Aziz, No. 17-0116 at 16.
Here, the Order has an overwhelmingly disparate impact on Muslims, and in ways that are probative of intent. See Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 487 (1997). The seven countries whose nationals are banned from entering the United States are each over 90% Muslim. See Espíritu Decl. Ex. E (Central Intelligence Agency’s World Listing Factbook website providing countries’ population percentage by religious affiliation). Section 5’s suspension of the refugee resettlement program and its indefinite prohibition on the entry of Syrians as refugees has a similarly disparate impact on Muslims. Moreover, the special carveouts for religious minorities in Section 5(b) and (e) indicate a preference to lessen the adverse impact on Christians, which has been confirmed by President Trump himself.8
As a candidate, now-President Trump expressly stated numerous times that he intended, if elected, to ban Muslim immigrants from entering the United States9—a commitment that he
8 Espíritu Decl. Ex. F (David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees, CBN News (Jan. 27, 2017)) (President Trump confirming that Christians would be given priority when applying for refugee status, stating, “[W]e are going to help them.”); see also id. at Ex. G (Sarah Pulliam Bailey, Trump signs order limiting refugee entry, says he will prioritize Christian refugees, Wash. Post (Jan 31, 2017)). 9 Espíritu Decl. Ex. H (Statement by Donald J. Trump on Preventing Muslim Immigration (Dec. 7, 2015) [hereinafter Trump Statement on Preventing Muslim Immigration]) (stating that
18

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 26 of 49 PageID #: 2126
never repudiated and that, in fact, remains on his campaign website today.10 President Trump
conceded that he was using territory as a proxy for religion.11 When asked after his election
victory whether he still intended to ban Muslim immigrants from the United States, President-
elect Trump confirmed that his plans had not changed.12 And one week after being inaugurated
he signed the Executive Order at issue here, banning entry of all non-citizens from seven
overwhelmingly Muslim countries. Two days after the Order was issued, Rudolph Giuliani, an
advisor to President Trump, stated that then-candidate Trump had asked Mr. Giuliani for help in
“legally” creating a “Muslim ban”; that, in response, Mr. Giuliani and others decided to use
territory as a proxy; and that this idea is reflected in the signed Order.13 Even without other
“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on,” and asserting that “there is great hatred towards Americans by large segments of the Muslim population,” and “it is obvious to anybody the hatred is beyond comprehension.”); see also id. at Ex. I (Donald J. Trump (@realDonaldTrump), Twitter (December 7, 2015, 1:47 PM)); id. at Ex. J (Jenna Johnson, Trump calls for ‘total and complete shutdown of Muslims entering the United States’, Wash. Post (Dec. 7, 2015)) (noting that in addition to the call for the complete shutdown of Muslims entering the United States, President Trump had signaled his support for “heavy surveillance of mosques” and that he “would consider establishing a database to track all Muslims in the country”). 10 Espíritu Decl. Ex. H (Trump Statement on Preventing Muslim Immigration). 11 Espíritu Decl. Ex. K (Meet the Press (NBC television broadcast July 24, 2016)) (in response to being asked if a plan similar to the now-enacted Executive Order was a “rollback” from “[t]he Muslim Ban,” then-candidate Trump stated: “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion. . . . I’m looking now at territory. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m OK with that, because I’m talking territory instead of Muslim.”). 12 Espíritu Decl. Ex. L (Katie Reilly, Donald Trump on Proposed Muslim Ban: 'You Know My Plans,’ Time (Dec. 21, 2016)). 13 Espíritu Decl. Ex. M (Amy B. Wang, “Trump asked for a ‘Muslim ban,’ Guiliani says – and ordered a commission to do it ‘legally’”, Wash. Post (Jan. 29, 2017)) (Mr. Giuliani explaining that “when [then-candidate Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”).
19

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 27 of 49 PageID #: 2127
evidence, or the benefit of any discovery, there is voluminous evidence that the Order was intended, at least in part, to discriminate against Muslims.14
C. The Order Would Fail Even Under Deferential Review.
The government contends that the Executive Order should be reviewed under a rational
basis standard. In other cases challenging the Executive Order, the government has argued for
application of the “facially legitimate and bona fide” standard. See Washington, 2017 WL
526497 at *6; Aziz, No. 17-0116 at 16. But, as discussed below, such deferential review is not
the proper standard where religious discrimination is at issue. In any event, the Executive Order
cannot survive even a deferential standard of review.
As an initial matter, the government is incorrect that “subjective motivations” are “simply
irrelevant” under deferential review. Gov’t Br. 13. As Judge Brinkema explained in the Virginia
case, if the government’s proffered reason “has been given in ‘bad faith,’ it is not ‘bona fide,’”
meaning the Court must determine “whether the proffered reason . . . is the real reason.” Aziz,
No. 17-0116 at 16 (citing, inter alia, Am. Acad. of Religion v. Napolitano, 573 F.3d 115, 126 (2d
Cir. 2009); accord Kerry v. Din, 135 S. Ct. 2128, 2141 (2015) (Kennedy, J., concurring in the 14 Espíritu Decl. Ex. N (Jenna Johnson, Donald Trump says he is not bothered by comparisons to Hitler, Wash. Post (Dec. 8, 2015)) (comparing his proposed Muslim ban to former President Franklin Roosevelt’s decision to intern Japanese Americans during World War II, and suggesting that internment camps for Muslims would be considered as “a temporary measure until our representatives, many of whom are grossly incompetent, until our representatives can figure out what's going on.”); id. at Ex. O (Theodore Schliefer, Donald Trump: ‘I think Islam hates us’, CNN (Mar. 10, 2016)) (stating “I think Islam hates us”); id. at Ex. P Alex Griswold, Trump Responds to Brussels Attacks: ‘We're Having Problems With the Muslims, Mediate (Mar. 22, 2016)) (stating that “we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country,” adding, “You need surveillance, you have to deal with the mosques whether you like it or not . . . These attacks aren’t done by Swedish people, that I can tell you”); compare with Hunter, 471 U.S. at 229 (“The delegates to the all-white [Alabama Constitutional Convention of 1901] were not secretive about their purpose. John B. Knox, president of the convention, stated in his opening address: ‘And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State.’”) (citation omitted).
20

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 28 of 49 PageID #: 2128
judgment). Here, as set forth above, there is ample evidence that the purported distinction drawn on the basis of nationality is pretext for religious discrimination, and is therefore not bona fide.15
Discriminatory policy cannot survive even deferential review because the government has no legitimate interest in such discrimination. Romer v. Evans, 517 U.S. 620, 634-35 (1996) (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. ‘[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.’”) (quoting Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)). Here, anti-Muslim animus is evident on the face of the Order and in the abundant evidence of intent, not least of which is a statement by the President on the same day that the Order was issued.16
Further, in litigation before this court, the Ninth Circuit, and the Eastern District of Virginia, “the Government has done little more than reiterate” its interest in combatting terrorism without explaining how the Order is necessary or even useful for that purpose. Washington, 2017 WL 526497 at *10; accord Aziz, No. 17-0116 at 6 (the government has not “offered any evidence to identify the national security concerns that allegedly prompted this [Order], or even described the process by which the [P]resident concluded that this action was necessary”). That is insufficient. The government’s national security powers do not “‘automatically trump the
15 The government cites Louhghalam v. Trump, No. 17-10154-NMG, 2017 WL 479779 (D. Mass. Feb. 3, 2017), which applied deferential review and upheld the Order. Louhghalam notably recognized that the Second Circuit requires examination of whether the government’s decision was in fact “bona fide,” but concluded First Circuit precedent was to the contrary. The Court’s decision was also issued without the benefit of full merits briefing or the evidence from senior former national security experts submitted here (and on which the Ninth Circuit and Eastern District of Virginia heavily relied). 16 Espíritu Decl. Ex. F (David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees, CBN News (Jan. 27, 2017)).
21

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 29 of 49 PageID #: 2129
Court’s own obligation to secure the protection that the Constitution grants to individuals,’ even in times of war,” Washington, 2017 WL 526497 at *6 (quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010)), and “[n]ational defense cannot be deemed an end in itself, justifying any exercise of . . . power,” no matter how weak the rationale may be, id. (quoting United States v. Robel, 389 U.S. 258, 264 (1967) (internal quotation marks omitted)).
By contrast, former senior national security, foreign policy, and intelligence officials have submitted evidence that the Order in fact “ultimately undermines the national security of the United States, rather than making us safer” and “cannot be justified on national security or foreign policy grounds.” Espíritu Decl. Ex. B (Joint Declaration of Madeleine K. Albright, et al.). Moreover, four of the signatories to that declaration “were current on active intelligence regarding all credible terrorist threat streams directed against the U.S. as recently as one week before the issuance of the” Order, and yet know of no “specific threat that would justify the travel ban.” Id. That fact should not be particularly surprising: “The Administration has identified no information or basis for believing there is now a heightened or particularized future threat from the seven named countries.” Id. Instead, the Order “will aid ISIL’s propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam,” and will harm troops deployed abroad, the ability to gather intelligence, and law enforcement operations. Id.; see also Aziz, No. 17-0116 at 6, 21 (extensively citing similar declaration); Dkt. No. 137 (Amicus Brief of Former National Security Officials).
Likewise, there is no justification for the Order’s arbitrary and discriminatory distinction between majority and minority religions sufficient to survive even deferential scrutiny. As already explained, the preference for minority religions will require government officials to delve into the fine points of religious doctrine to determine what counts as separate religions and
22

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 30 of 49 PageID #: 2130
what does not. Even apart from the constitutional violation inherent in such entanglement with religion, there is simply no reason to do so apart from an illegitimate desire to preference Christian refugees from majority-Muslim countries.17 The desire to harm Muslim refugees from majority-Muslim countries would of course be likewise illegitimate. See Romer, 517 U.S. at 634-35. Thus, even if the Court were to apply a deferential standard of review, the Executive Order could not survive.
D. Neither The Plenary Power Doctrine Nor INA Section 212(f) Justifies This Unprecedented Religious Discrimination.
The government has effectively pursued the same course here as was rejected by the Ninth Circuit: “Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.” Washington, 2017 WL 526497 at *10. But, as that court explained, “it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.” Id. at *7; see also Aziz, No. 17-0116 at 10 (“This is a familiar judicial exercise.”) (internal quotation marks omitted). The government has pointed to nothing that would justify rubber-stamping this Order.
1. The government alludes to the doctrine of plenary power over immigration. Gov’t Br. 11 n.2. But “the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.” Washington, 2017 WL 526497 at *5 (citing Zadvydas v. Davis, 533 U.S. 678, 695 (2001); INS v. Chadha, 462 U.S. 919, 940-41 (1983)); accord Aziz, No. 17-0116 at 11-12 (“Every presidential action must still comply with the limits
17 Espíritu Decl. Ex. F (David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees, CBN News (Jan. 27, 2017)).
23

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 31 of 49 PageID #: 2131
set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights.”). Moreover, the Supreme Court has never applied the plenary power doctrine to uphold religious discrimination. Cf. Lamont v. Woods, 948 F.2d 825, 835 (2d Cir. 1991) (noting that the Supreme Court “itself has suggested that the constitutional prohibition against establishments of religion targets the competency of Congress to enact legislation of that description—irrespective of time or place”).
Likewise, the circuit precedent the government cites regarding discrimination generally has nothing at all to do with religious discrimination. Gov’t Br. 11-13.18 The one case the government cites addressing a religious discrimination claim actually supports plaintiffs’ argument: The Second Circuit rejected a claim against a registry established shortly after the September 11 attacks because the plaintiffs had offered no evidence of “improper animus toward Muslims” beyond the fact that the countries at issue were predominantly Muslim. Rajah v. Mukasey, 544 F.3d 427, 439 (2d Cir. 2008). Here, as already explained, plaintiffs have provided ample evidence of intent to discriminate against Muslims. See Aziz, No. 17-0116 at 18 (“Absent the direct evidence of animus presented by the Commonwealth, singling out these countries for additional scrutiny might not raise Establishment Clause concerns; however, with that direct evidence, a different picture emerges.”).
2. The Order invokes INA § 212(f), 8 U.S.C. § 1182(f), but that provision says nothing of religion, has never been invoked to justify religiously discriminatory exclusion, and should
18 See Yuen Jin v. Mukasey, 538 F.3d 143, 158-60 (2d Cir. 2008) (distinction between those who comply with a removal order and those who do not); Romero v. INS, 399 F.3d 109, 111-12 (2d Cir. 2005) (statutory distinction by nationality); Jankowski-Burczyk v. INS, 291 F.3d 172, 178 (2d Cir. 2002) (distinction between permanent residents and other noncitizens); Rojas-Reyes v. INS, 235 F.3d 115, 125 (2d Cir. 2000) (distinction between those with final and non-final deportation orders); United States v. Lue, 134 F.3d 79, 86 (2d Cir. 1998) (distinction between citizens and noncitizens).
24

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 32 of 49 PageID #: 2132
not be read to authorize exclusion of a “class” of noncitizens on the basis of religion.19 Indeed, Section 212(f)’s text simply does not allow the President to impose a restriction on entry that is religiously discriminatory. Section 212(f) emphatically does not allow entry restrictions to be imposed on Presidential fiat. Rather, in addition to the clear limitations on 212(f) authority imposed by other statutes and the Constitution, Section 212(f) itself requires that it be in “the interests of the United States” to impose the restriction at issue. The United States has no “interest” in denying entry on a religiously discriminatory basis, cf. Romer, 517 U.S. at 634-35, and Section 212(f) therefore does not authorize the President to impose the ban at issue here. Moreover, Section 212(f) should be understood against the backdrop of our Constitution’s unique emphasis on religious nondiscrimination and thus should be read to avoid the serious constitutional questions that would be presented by an immigration statute authorizing discrimination on the basis of religion.
Indeed, Congress has shown particular concern for religious freedom, further undercutting an interpretation of 212(f) that would authorize exclusion of members of a particular faith. See, e.g., Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §2000bb et seq.; City of Boerne v. Flores, 521 U.S. 507, 516 (1997) (explaining that RFRA’s application is “universal” across the federal government, including all federal statutes, whether adopted before or after its enactment); see also Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq.
19 INA § 212(f), 8 U.S.C. § 1182(f), provides in relevant part: “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.”
25

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 33 of 49 PageID #: 2133
In light of these considerations, any suggestion that Congress has authorized the President to order a ban disfavoring Muslims, or favoring Christians, is simply wrong. But if Congress did, sub silentio, authorize religious discrimination in § 212(f), that application of the provision is unconstitutional. Neither Congress nor the President can override the Constitution. See Washington, 2017 WL 526497 at *5-7; Aziz, No. 17-0116 at 10-12. III. THE EXECUTIVE ORDER UNLAWFULLY DEPRIVES CLASS MEMBERS OF
THEIR RIGHT TO APPLY FOR ASYLUM AND WITHHOLDING OF REMOVAL. The Order also unlawfully seeks to eliminate the statutory rights, guaranteed to all noncitizens on U.S. soil, to apply for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). See 8 U.S.C. 1158(a) (asylum); 8 U.S.C. § 1231(b)(3) (withholding); Pub. L. No. 105-277, § 2242, 112 Stat. 2681-822 (1998) (reprinted in 8 U.S.C. § 1231, Notes (2012)) (CAT). Under the withholding statute, “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country” on enumerated grounds. 8 U.S.C. § 1231(b)(3)(A) (emphasis added). The government, including the President, has no discretion to violate this command. Noncitizens who satisfy the statutory standard “are entitled to mandatory suspension of deportation.” INS v. Cardoza-Fonseca, 480 U.S. 421, 444 (1987) (emphasis in original); Yiu Sing Chun v. Sava, 708 F.2d 869, 876 (2d Cir. 1983). The same principle applies for the CAT: “Protection under the CAT, like withholding of removal, is a mandatory form of relief.” Kone v. Holder, 596 F.3d 141, 147 (2d Cir. 2010). The President also cannot deprive noncitizens of the right to apply for asylum within the United States. The asylum statute provides that “[a]ny alien who is physically present in the
26

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 34 of 49 PageID #: 2134
United States or who arrives in the United States … irrespective of such alien’s status, may apply for asylum.” 8 U.S.C. § 1158(a)(1). The statute expressly prohibits the government from denying arriving noncitizens the right to apply for asylum. See 8 U.S.C. § 1225(b)(1)(A)(ii) (providing that “the officer shall refer the alien for an interview by an asylum officer” if the alien claims fear or the desire to apply for asylum) (emphasis added); 8 C.F.R. § 235.3(b)(4) (“[T]he inspecting officer shall not proceed further with removal of the alien until the alien has been referred for an interview by an asylum officer.”) (emphasis added).
These provisions “confer[] upon all aliens a statutory right to apply for asylum.” Campos v. Nail, 43 F.3d 1285, 1288 (9th Cir. 1994) (emphasis added); see also OrantesHernandez v. Thornburgh, 919 F.2d 549, 553 (9th Cir. 1990) (discussing “the right of aliens to apply for asylum” and stating that “[i]t is undisputed that all aliens possess such a right under the Act”). The Second Circuit has thus held that “asylum seekers at our border” are “entitled to nothing less” than an opportunity to apply for asylum. Chun, 708 F.2d at 876. As a result, “a total denial of opportunity to apply for asylum justifies injunctive relief.” Campos, 43 F.3d at 1288.
The Supreme Court has thus recognized that these statutory requirements limit the President’s authority to exclude noncitizens under 8 U.S.C. § 1182(f). In Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993), the Court considered a challenge to a Presidential proclamation, issued under 8 U.S.C. § 1182(f), ordering the interdiction and return of Haitian nationals at sea, without any asylum or withholding procedures. Although the Court rejected the challenge, holding that the Refugee Act of 1980 did not apply extraterritorially, the Court recognized that asylum and withholding procedures prevent the President from eliminating access to those procedures for individuals on U.S. soil. Indeed, the Court explicitly noted that
27

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 35 of 49 PageID #: 2135
withholding requirements applied to noncitizens “on the threshold of initial entry.” Id. at 170, 180, 187 (citation and internal quotation marks omitted). This case concerns only individuals who reach U.S. soil. The plaintiffs are therefore entitled to a hearing to determine whether they are eligible for asylum, withholding, and CAT relief. IV. THE EXECUTIVE ORDER’S DISCRIMINATION ON THE BASIS OF
NATIONALITY VIOLATES SECTION 202 OF THE IMMIGRATION AND NATIONALITY ACT. By suspending entry of refugees from Syria indefinitely, and immigrants from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days, the Executive Order contravenes the INA’s prohibition on nationality discrimination and therefore exceeds the President’s statutory authority to exclude noncitizens. Section 202(a)(1)(A) of the INA, 8 U.S.C. § 1152(a)(1)(A), provides, with limited and immaterial exceptions, that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of,” among other things, the person’s “nationality.” Passed in 1965, at the height of the civil rights movement, Section 202 was explicitly framed as a repudiation of nationality discrimination in immigration policy. President Johnson, in his signing statement, declared that “for over four decades the immigration policy of the United States has been twisted and has been distorted by the harsh injustice of the national origins quota system.” Lyndon B. Johnson, Remarks at the Signing of the Immigration Bill (October 3, 1965). The Executive Order violates Section 202’s anti-discrimination command by relying on nationality to suspend the issuance of visas and to ban entry. Section 3 of the Executive Order explicitly “Suspen[ds] Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern” (emphasis added), directly contravening Section 202(a)(1)(A)’s prohibition on “discriminat[ion] . . . in the issuance of an immigrant visa.” The ban on entry in
28

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 36 of 49 PageID #: 2136
Section 3(c) of the Executive Order also violates this prohibition: for 202(a)(1)(A) to have any meaning, the anti-discrimination principle necessarily applies not only to issuance, but also to maintenance, revocation, and entry into the country.
The government relies on 8 U.S.C. § 1152(a)(1)(B), which provides that the nondiscrimination provision may not “limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications.” See Gov’t Br. 13 (emphasis added). Yet the Executive Order does not merely change procedures for the processing of visas, but rather expressly suspends issuance of those visas, as well as entry into the country. Moreover, the State Department implemented the Executive Order by categorically revoking the visas of nationals of the seven banned countries. See Dkt. No. 20-1. That the Order also alters processing procedures does not render lawful its discrimination in issuance, revocation, and entry.
Nor can Section 212(f) override Section 202’s nondiscrimination requirement. Section 202 was enacted in 1965, thirteen years after Section 212(f). Moreover, Section 212(f) is limited not only by Congress’ express disfavor of nationality restrictions, but also by the asylum and withholding provisions described above. See Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”). It is therefore unsurprising that Section 212(f) has never been invoked to justify so broad a nationality-based restriction on entry. Indeed, in the narrow circumstances in which Congress has found nationality classifications necessary, it has passed specific legislation. See, e.g., Romero v. INS, 399 F.3d 109, 112 (2d Cir. 2005) (rejecting challenge to legislation implementing immigration preferences for nationals of Nicaragua and Cuba). The immigration
29

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 37 of 49 PageID #: 2137
laws do not authorize the President’s nationality-based visa and entry restrictions, and those restrictions are therefore invalid. See 5 U.S.C. § 706(2)(A). V. THE EXECUTIVE ORDER VIOLATES DUE PROCESS.
The Executive Order deprives lawful permanent residents and visa holders of their right to enter the country and does not provide any process whatsoever. As the Ninth Circuit concluded, the government cannot show “that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.” Washington, 2017 WL 526497 at *7. Indeed here, as in the Ninth Circuit, “the Government does not contend that the Executive Order provides for such process.” Id. Instead, the government contends that the due process claims are not viable because plaintiffs’ claims are moot and they have therefore not suffered prejudice by the lack of process. Gov’t Br. 10. But, as discussed above, the case is not moot and the government has not and cannot justify, on the merits, its deprivation of all process.
The statutory rights to apply for asylum, withholding, and CAT give rise to interests protected by the Due Process Clause. “[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). The Executive Order deprives class members of their protected interests, including the right to apply for asylum and withholding, without any hearing or opportunity to show eligibility for such relief from removal.
For instance, the asylum, withholding, and CAT statutes give rise to interests protected by the Due Process Clause. Augustin v. Sava, 735 F.2d 32, 37 (2d Cir. 1984) (“[T]he protected right to avoid deportation or return to a country where the alien will be persecuted warrants a
30

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 38 of 49 PageID #: 2138
hearing where the likelihood of persecution can be fairly evaluated.”); see also Ezeagwuna v. Ashcroft, 325 F.3d 396, 400, 405 (3d Cir. 2003) (finding due process violation in case of asylum seeker detained “[u]pon her arrival at Newark International Airport,” and confirming that “[d]ue process protections are afforded to aliens facing removal”); Kowalczyk v. INS, 245 F.3d 1143, 1146-49 (10th Cir. 2001) (holding that noncitizen, who applied for asylum upon arrival in the United States, suffered a due process violation when he was denied an opportunity to respond to administratively noticed facts); Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1038 (5th Cir. 1982) (“Congress and the executive have created, at a minimum, a constitutionally protected right to petition our government for political asylum.”).
The Executive Order deprives prospective class members of these protected interests without offering any opportunity whatsoever to contest that determination. For example, when Customs and Border Protection detained and sought to remove Mr. Darweesh, it offered him no opportunity to explain that he had worked for the U.S. government in Iraq for nearly ten years, and that, as a result, two of his colleagues had been murdered and he had been targeted by the Baghdad Police, who are known to work with anti-American militias. Compl. ¶ 20. Such summary, irrational removal violates the due process rights of class members who fear persecution upon return to their home countries.
The Executive Order also violates due process by banning the entry or reentry of lawful permanent residents and visa holders without any process at all. These individuals have a substantial interest in being able to travel to their homes, their studies, their jobs, and their loved ones in the United States, an interest that cannot be deprived without process. Individuals granted fiancé visas traveling to the United States to marry their intended marital partner; noncitizens granted employment visas who are traveling to jobs they have been offered and
31

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 39 of 49 PageID #: 2139
accepted; those granted student visas who have paid tuition and committed to a course of study at an institution of higher learning here in the United States, and many others who have been granted visas after submitting extensive applications and undergoing painstaking vetting, cannot have their interests summarily extinguished. See, e.g., Landon v. Plascencia, 459 U.S. 21, 33-34 (1982) (recognizing due process rights of lawful permanent resident returning from abroad); Ibrahim v. Dep’t of Homeland Sec., 669 F.3d 983, 997 (9th Cir. 2012) (allowing noncitizen whose student visa was revoked while she was traveling outside the United States to proceed with due process claim); Manwani v. U.S. Dep’t of Justice, 736 F. Supp. 1367, 1381 (W.D.N.Ca. 1990) (holding that U.S. citizen “has a protected property interest, codified in the INA, to petition the INS to obtain immediate relative status for a bona fide spouse”). Indeed, and at a very minimum, these noncitizens have a right to have their applications for admission determined under the lawful procedures enacted by Congress, and free from the restrictions imposed by the Executive Order, which is unlawful for the multiple reasons discussed herein. See, e.g., Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (en banc) (explaining that noncitizen denied entry enjoyed due process rights stemming “from those statutory rights granted by Congress and the principle that ‘[m]inimum due process rights attach to statutory rights’”) (citation omitted).
Thus, the Ninth Circuit properly concluded that the government was unlikely to establish that the Executive Order satisfies due process. The Court concluded that it was “obvious” that there were “viable claims based on the due process rights of persons who will suffer injuries to protected interests due to the Executive Order.” Washington, 2017 WL 526497 at *9 (recognizing that the Executive Order may violate, inter alia, the due process of rights of returning lawful permanent residents, non-immigrant visaholders “who have been in the United
32

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 40 of 49 PageID #: 2140
States but temporarily departed,” and noncitizens “who have a relationship with a U.S. resident or an institution that might have rights of its own to assert”) (citations omitted). The Ninth Circuit’s decision reflects the well-established principle that persons with substantial connections to the United States have significant interests that may not be deprived without due process. See, e.g., Plascencia, 459 U.S. at 33-34.20 VI. THE EXECUTIVE ORDER VIOLATES THE ADMINISTRATIVE PROCEDURE
ACT. The Executive Order also violates the Administrative Procedure Act, which authorizes judicial review of administrative action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), or “contrary to constitutional right, power, privilege, or immunity,” id. § 706(2)(B). Under the APA’s arbitrary or capricious standard, “courts retain a role, and an important one, in ensuring” that the agency has “engaged in reasoned decisionmaking,” a “task [that] involves examining the reasons” the agency gives, “or, as the case may be, the absence of such reasons.” Judulang v. Holder, 565 U.S. 42, 53 (2011). Moreover, the agency must offer a more detailed justification “when, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
20 In Louhghalam, which did not find a likely due process violation, the court erred in relying on Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990), which rejected a due process challenge to the revocation of a visa that had been mistakenly granted in violation of the applicable law. See Louhghalam, No. 17-10154-NMG at 13-14. In Azizi, the Second Circuit explicitly held that because the statute did not authorize the granting of the visa in that case, the plaintiffs could not show they had a property right in the visa. Here, by contrast, there is no dispute over the statutory validity of the visas, and the President therefore may not revoke them and deny entry without any due process of law.
33

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 41 of 49 PageID #: 2141
Here, the Department of Homeland Security and the Department of State changed their policies overnight, with no factual findings indicating changed circumstances and no consideration of the serious reliance interests at issue. As the Court noted and the government acknowledged on January 28, 2017, if the plaintiffs “had come here two days [earlier], we wouldn’t be here.” Dkt. No. 17, at 8. Nor has either the Department of State or the Department of Homeland Security offered any evidence to support the proposition that these changes in policy were rationally related to a security threat. See Aziz, No. 17-0116 at 6. Indeed, the evidence in the record from high-ranking former national security officials suggests that the Executive Order increases security threats rather than addressing them. Espíritu Decl. Ex. B (Joint Declaration of Madeleine K. Albright, et al.). Moreover, as the Ninth Circuit noted, even since the issuance of the Executive Order, the government has changed its policy several times without explanation. See Washington, 2017 WL 526497 at *8 (noting the government’s “shifting interpretations of the Executive Order”). Such arbitrary changes in policy, without detailed justification or consideration of reliance interests, violate the Administrative Procedure Act. See Judulang, 565 U.S. at 64 (concluding that the Court must reject a policy “when we cannot discern a reason for it”).
Thus, because the Executive Order is arbitrary and contrary to various statutory and constitutional provisions, it violates the Administrative Procedure Act. VII. OTHER PRELIMINARY INJUNCTION FACTORS
Plaintiffs have already addressed and shown a likelihood of success on the merits. Accordingly, in this section, plaintiffs address only the relative harms to the parties and the public interest prong of preliminary injunction test.
A. Plaintiffs Will Suffer Irreparable Harm Absent An Injunction.
34

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 42 of 49 PageID #: 2142
At the time plaintiffs filed suit, they sought to certify a class of persons who, like them, were detained by the government, denied entry to the United States, and threatened with forcible return to the country from which their travel originated, notwithstanding being legally authorized to enter the United States. The future members of the class face the same irreparable harms, and thus perpetuate the controversy. See supra Part I (mootness).21
The nature of the harm threatened by the government’s unconstitutional conduct is unquestionably irreparable, including religious discrimination and the lack of any process. See Mitchell v. Cuomo, 748 F. 2d 804, 806 (2d Cir. 1984) (affirming finding of irreparable harm where possible deprivation of constitutional rights is alleged); Ambrose v. Malcolm, 414 F. Supp. 485, 493 (S.D.N.Y. 1976) (observing that “the continuing daily deprivation of constitutional rights . . . is irreparable by definition”) (internal quotation marks and citations omitted).
Beyond the loss of constitutional rights, many plaintiffs who are removed or denied entry would face threats of persecution, torture, and even death, as well as denial of their right to apply for asylum, 8 U.S.C. § 1158, withholding of removal, id. § 1231(b)(3), and relief pursuant to the CAT, id. § 1231 (The Foreign Affairs Reform and Restructuring Act of 1998, which implements the CAT). See Pet’rs. Mem. in Support of Emergency Stay of Removal, Dkt. No. 6-1, at 17-21; see also Espíritu Decl. Ex. Q (Decl. of Reema Khaled Dahman ¶¶ 4-16, Ali v. Trump, No. 170135 (W.D. Wash. Feb. 6, 2017)) (describing fear for son who is 16-year old minor in Syria); Espíritu Decl. Ex. R (Decl. of Babek Yaghoubi Moghadam ¶ 7, Loughalam v. Trump, No. 17-
21 To the extent the government argues that plaintiffs cannot base their request for injunctive relief on claims of irreparable harm to class members, see Gov’t Br. 18, they are wrong. The Supreme Court has repeatedly considered irreparable harm to class members in granting an injunction, even where the class representatives were no longer threatened with harm. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 110-11 (1975). The only authority cited by the government is a case that did not in fact involve a class action. Gov’t Br. 18. (citing Moore v. Consolidated Edison Co. of New York, Inc., 409 F. 3d 506 (2d Cir. 2005)).
35

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 43 of 49 PageID #: 2143
10154 (D. Mass. Feb. 3, 2017)) (describing fear of not being permitted to return to US from Iran).
The irreparable harm from the Order also includes being subjected to periods of unlawful detention in airports across the country. See, e.g., Dkt. No. 53-5 (Sara Yarjani Decl.) ¶ 34 (detained for 23 hours at Los Angeles International Airport); Dkt. No. 53-7 (Suha Amin Abdullah Abushamma Decl.) ¶ 20 (detained for 10 hours); Dkt. No. 53-8 (Hind Mohamed Hassan Ahmed Elbashir Decl.) ¶ 24 (detained for 10 hours). During such detention prospective class members are at risk of being denied basic necessities, such as food, medications, personal hygiene products, and adequate accommodations to rest. See, e.g., Yarjani Decl. ¶¶ 22-25 (held overnight in room with no bathroom and given only an applesauce and juice); Abushamma Decl. ¶ 20 (not offered food until she signed a form withdrawing her application for admission); Elbashir Decl. ¶ 13 (denied medication); Dkt. No. 53-12 (Manar Decl.) ¶¶ 10, 14, 16 (held for hours without food or anywhere to rest); Espíritu Decl. Ex. S (article detailing the conditions suffered by individuals detained at LAX, including an elderly Iranian woman).
During such detention, class members are also at risk of being subjected to complete isolation with no means of communicating with anyone in the outside world, including worried family members and legal counsel. See, e.g., Yarjani Decl. ¶¶ 16, 28, 30 (told she could only use her cell phone after formally withdrawing her application for admission); Dkt. No. 53-6 (Ramez Snober Decl.) ¶ 17 (prevented from contacting anyone); Abushamma Decl. ¶ 9 (never permitted to speak on the phone with her attorney); Elbashir Decl. ¶ 15 (denied permission to call his family); Dkt. No. 53-9 (Rashid Ahmed Gibril Ali Decl.) ¶ 4 (detained with other families and not given any information or permitted to use his cell phone).
Given these coercive detention conditions, prospective class members are also at risk of
36

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 44 of 49 PageID #: 2144
being pressured into signing away their legal authorization to enter the United States. For example, numerous individuals reported being forced to sign forms they did not understand, or otherwise being told that if they did not withdraw their application for admission they would be deported and be barred from entering the United States for five years or more. See, e.g., Yarjani Decl. ¶¶ 15-18, 23; Abushamma Decl. ¶¶ 13, 15-18; Snober Decl. ¶¶ 15-16; Elbashir Decl. ¶¶ 16-19; Ali Decl. ¶¶ 5-6; Dkt. No. 53-11 (Nabila Alhaffar Decl.) ¶¶ 8-10; see also Manar Decl. ¶¶ 14-16 (describing being scared, crying, and being told she had to sign something or she would not be allowed to the return to the United States for five years); Espíritu Decl. Ex. T (Decl. of Tareq Aqel Mohamed Aziz ¶¶ 12-14, Aziz v. Trump, No. 17-0116 (E.D. Va. filed on Feb. 8, 2017)) (denied request for translator or phone calls and told he had to sign a form that he did not understand).
Prospective class members also face irreparable harms resulting from the Executive Order’s bar on entry to the United States. The ban on entry has inflicted and will continue to inflict emotional distress on class members who seek entry to the United States to visit or reunite with family members. See, e.g., Elbashir Decl. ¶¶ 4-8 (prevented from visiting her sister and her family after careful planning to be present for the birth of her baby); Espíritu Decl. Ex. Q (Dahman Decl. ) ¶¶ 8-17 (prevented from being reunited with her minor son); Alhaffar Decl. ¶¶ 1-2, 5, 15 (prevented from returning home to Virginia and reuniting with her husband after travel abroad); Dkt. No. 53-10 (Yahya Aburomman Decl.) ¶ 2 (prevented from visiting her brothers, uncles, and aunt); Espíritu Decl. Ex. U (Ali Sanie Decl.) ¶¶ 1, 9 (Louhghalam v. Trump, No. 1710154 (D. Mass. Feb. 3, 2017)) (legal permanent resident who cancelled planned travel to Iran for surgery and to visit family because of fear of inability to return).
Some class members who have authorization to enter the United States based on their
37

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 45 of 49 PageID #: 2145
employment would face irreparable harm to their employment if denied entry. See, e.g., Abushamma Decl. ¶¶ 1, 14 (a doctor at a medical clinic in Cleveland fearful over being unable to finish her residency); Ali Decl. ¶ 3 (medical professional prevented from attending a conference related to his work); Manar Decl. ¶ 6 (law student prevented from attending the 2017 Winter Youth Assembly at the United Nations, where she was to attend as a chosen delegate); Espíritu Decl. Ex. V (Decl. of Leila Amirsardary ¶¶ 1, 4-11, Loughalam v. Trump, No. 17-10154 (D. Mass. Feb. 3, 2017) (business owner who needs to travel abroad for work but unable to do so out of fear she will not be permitted to return)).
Other class members with authority to enter the United States on a student visa would be prevented from continuing their education if denied entry. See, e.g., Yarjani Decl. ¶ 27 (describing how she had only 8 months of studies left to finish her master’s degree); Espíritu Decl. Ex. W (Zahrasadat Mirrazi Renani Decl.) ¶ 1, 9, 11, Loughalam v. Trump, No. 17-10154 (D. Mass. Feb. 3, 2017)) (doctoral student unable to visit family abroad and attend educational conference out of fear he will be prevented from returning); Espíritu Decl. Ex. X (Najwa Elyazgi Decl.) ¶¶ 4-6, 8-10, 15-16, Aziz v Trump, No. 17-0116 (E.D. Va. Feb. 8, 2017)) (student denied ability to board flight after travel abroad and stranded in Instanbul for six days).
Finally, the ban inflicts social stigma on plaintiffs and class members by treating them presumptively as terrorists on the basis of their religion. The President’s denigrating statements about Islam, in combination with a policy that disadvantages Muslim noncitizens, also subject plaintiffs to a category of suspicion from which they cannot escape, thereby impugning their reputation and integrity.
In short, both before and after this Court enjoined the removal of putative class members pursuant to the Executive Order, examples of the irreparable harms suffered by putative class
38

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 46 of 49 PageID #: 2146
members resulting from detention and denial of entry were widespread. Absent an injunction from this Court, putative class members are at risk of continued, irreparable harm.
B. The Balance Of Harms And Public Interest Militate Heavily In Favor Of An Injunction.
The balance of harms and public interest weigh strongly in favor of granting a preliminary injunction. See Winter, 555 U.S. at 24. In contrast to the irreparable injury facing plaintiffs, the government has presented no evidence of harm resulting from an injunction. The only argument offered by the government is a general reference to the federal government’s interest in enforcing laws related to national security. See Gov’t Br. 18. This argument was resoundingly rejected by the Ninth Circuit. Washington, 2017 WL 526497 at *10 (dismissing the government’s claim of irreparable injury and noting that “the Government has done little more than reiterate” its general interest in combatting terrorism) (internal citations omitted). Likewise, the district court in Virginia found that “[i]ronically, the only evidence of in this record concerning national security indicates that the EO may actually make the country less safe.” Aziz, No. 17-0116 at *21; see also Espíritu Decl. Ex. B (Joint Declaration of Madeleine K. Albright, et al.); Dkt. No. 137 (Amicus Brief of Former National Security Officials).
Finally, the public interest also strongly favors a preliminary injunction. As the Ninth Circuit found, “the public . . . has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination.” Washington, 2017 WL 526497 at *11. The Court should therefore issue a preliminary injunction.
CONCLUSION The Court should deny the motion to dismiss and grant a preliminary injunction.
39

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 47 of 49 PageID #: 2147

Dated: February 16, 2017
Michael J. Wishnie (MW 1952) Muneer I. Ahmad† Elora Mukherjee (EM 4011) Marisol Orihuela† JEROME N. FRANK LEGAL SERVICES ORGANIZATION YALE LAW SCHOOL‡ P.O. Box 209090 New Haven, CT 06520-9090 Phone: (203) 432-4800 Fax: (203) 432-1426 michael.wishnie@yale.edu
Mark Doss Rebecca Heller Julie Kornfeld Stephen Poellot INTERNATIONAL REFUGEE ASSISTANCE PROJECT URBAN JUSTICE CENTER 40 Rector St, 9th Floor New York, NY 10006 Tel. (646)-602-5600 mdoss@refugeerights.org bheller@refugeerights.org jkornfeld@refugeerights.org spoellot@refugeerights.org
Karen C. Tumlin†† Nicholas Espíritu†† Melissa S. Keaney† Esther Sung† NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 1600

Respectfully submitted,
/s/ Lee Gelernt Lee Gelernt (LG-8511) Omar C. Jadwat (OJ-7925) Cecillia D. Wang (CW-8359) Andre I. Segura† AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2600 lgelernt@aclu.org ojadwat@aclu.org cwang@aclu.org asegura@aclu.org
Jennifer Chang Newell†† Cody H. Wofsy†† AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Tel. (415) 343-0770 jnewell@aclu.org cwofsy@aclu.org
Jonathan Polonsky KILPATRICK TOWNSEND & STOCKTON LLP 1114 Avenue of the Americas New York, NY 10036-7703 Tel. (212) 775 8703 jpolonsky@kilpatricktownsend.com
Justin B. Cox† NATIONAL IMMIGRATION LAW CENTER 1989 College Ave. NE
40

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 48 of 49 PageID #: 2148

Los Angeles, CA 90010 Phone: (213) 639-3900 tumlin@nilc.org espiritu@nilc.org keaney@nilc.org sung@nilc.org

Atlanta, GA 30317 Phone: (678) 404-9119 cox@nilc.org

**Application for admission forthcoming. † Motion for admission pro hac vice forthcoming. †† Appearing pro hac vice. ‡ For identification purposes only.

Counsel for Petitioners

41

Case 1:17-cv-00480-CBA Document 159 Filed 02/16/17 Page 49 of 49 PageID #: 2149

Certificate of Service
I hereby certify that on February 16, 2017, I electronically filed the Opposition to the Motion to Dismiss and Reply Regarding Preliminary Injunction for Plaintiffs with the Court Clerk using the ECF system, which will send notification to Defendants’ registered counsel.

Dated: February 16, 2017

/s/ Lee Gelernt Lee Gelernt

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 1 of 88 PageID #: 2150

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al.,
on behalf of themselves and others similarly situated,
Petitioners,
v.
DONALD TRUMP, President of the United States, et al.,
Respondents.

Case No. 1:17-cv-00480 (CBA)

DECLARATION OF NICHOLAS ESPÍRITU IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO THE MOTION TO
DISMISS AND REPLY REGARDING PRELIMINARY INJUNCTION
I, Nicholas Espíritu, upon my personal knowledge and in accordance with 28 U.S.C. § 1746, hereby declare as follows:
1. I am an attorney with the National Immigration Law Center (NILC), and counsel of record for Plaintiffs in this action. I am licensed in the State of California and have been admitted pro hac vice to practice before this Court. As a witness, I could and would testify competently as to the matters set forth below.
2. Attached as Exhibit A is a true and correct copy of the Memorandum Opinion granting Motion for Preliminary Injunction in Aziz v. Trump, No. 17-0116 (E.D. Va. Feb. 13, 2017).
3. Attached as Exhibit B is a true and correct copy of the Joint Declaration of Madeleine K. Albright, et. al in Washington v. Trump, __ F. 3d __, No. 17-35105 (9th Cir. Feb. 6, 2017).
4. A true and correct copy of the February 3, 2017 Washington Post article by Justin Jouvenal, Rachel Weiner & Ann E. Marimow entitled “Justice Dept. Lawyer Says
1

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 2 of 88 PageID #: 2151
100,000 Visas Revoked Under Travel ban; State Dept. says About 60,000,” is attached hereto as Exhibit C. The article can also be found at http://tinyurl.com/jk342hm.
5. Attached as Exhibit D is a true and correct copy of a draft Executive Order “Protecting the Nation from Terrorist Attacks by Foreign Nationals.” The draft can also be found at https://apps.washingtonpost.com/g/documents/world/read-the-draft-of-the-executiveorder-on-immigration-and-refugees/2289/.
6. Attached as Exhibit E is a true and correct copy of the Central Intelligence Agency’s World Listing Factbook website providing countries’ population percentage by religious affiliation. This demographic information can also be found at https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html#sy.
7. A true and correct copy of the January 27, 2017 CBN News article entitled “Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Priority As Refugees,” is attached hereto as Exhibit F. The article can also be found at http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusive-presidenttrump-says-persecuted-christians-will-be-given-priority-as-refugees.
8. A true and correct copy of the January 31, 2017 Washington Post article by Sarah Pulliam Bailey entitled “Trump signs order limiting refugee entry, says he will prioritize Christian refugees,” is attached hereto as Exhibit G. The article can also be found at https://www.washingtonpost.com/news/acts-of-faith/wp/2017/01/27/we-dont-want-themthere-trump-signs-order-limiting-refugee-entry/?utm_term=.1238bc7f1081.
9. A true and correct copy of the December 7, 2015 statement posted to Donald J. Trump’s official campaign website entitled “Donald J. Trump Statement On Preventing Muslim Immigration,” is attached hereto as Exhibit H. The speech can also be found at https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventingmuslim-immigration.
10. A true and accurate copy of the tweet by Donald J. Trump @realDonaldTrump made on December 7, 2015 at 1:47 PM is attached hereto as Exhibit I. The tweet can also be found at https://twitter.com/realdonaldtrump/status/673982228163072000?lang=en.
11. A true and accurate copy of the December 7, 2015 Washington Post article by Jenna Johnson entitled “Trump calls for 'total and complete shutdown of Muslims entering the United States’” is attached hereto as Exhibit J. The article can also be found at https://www.washingtonpost.com/news/post-politics/wp/2015/12/07/donald-trump-callsfor-total-and-complete-shutdown-of-muslims-entering-the-unitedstates/?utm_term=.b6d478b253a6.
12. A true and correct copy of the transcript of the July 24, 2016 interview of Donald Trump by Chuck Todd on “Meet the Press” on NBC is attached hereto as Exhibit K. The transcript can also be found at http://www.nbcnews.com/meet-the-press/meet-press-july24-2016-n615706.
2

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 3 of 88 PageID #: 2152
13. A true and correct copy of the December 21, 2016 Time article by Katie Reilly entitled “Donald Trump on Proposed Muslim Ban: 'You Know My Plans,’” is attached hereto as Exhibit L. The article can also be found at http://time.com/4611229/donaldtrumpberlinattack/.
14. A true and correct copy of the January 29, 2017 Washington Post article by Amy B. Wang entitled “Trump asked for a ‘Muslim ban,’ Guiliani says – and ordered a commission to do it ‘legally,’” is attached hereto as Exhibit M. The article can also be found at https://www.washingtonpost.com/news/the- fix/wp/2017/01/29/trump-asked-fora-muslim-ban-giuliani-says-and-ordered-a-commission-to- do-itlegally/?utm_term=.2f88f830c54c.
15. A true and correct copy of the December 8, 2015 Washington Post article by Jenna Johnson entitled “Donald Trump says he is not bothered by comparisons to Hitler” is attached hereto as Exhibit N. The article can also be found at https://www.washingtonpost.com/news/post-politics/wp/2015/12/08/donald-trump-sayshe-is-not-bothered-by-comparisons-to-hitler/?utm_term=.97e412919c27.
16. A true and correct copy of the March 10, 2016 CNN article by Theodore Schliefer entitled “Donald Trump: 'I think Islam hates us,’” is attached hereto as Exhibit O. The article can also be found at http://www.cnn.com/2016/03/09/politics/donald-trump-islamhates-us/.
17. A true and correct copy of the March 22, 2016 Mediate article by Alex Griswold entitled “Trump Responds to Brussels Attacks: ‘We're Having Problems With the Muslims’” is attached hereto as Exhibit P. The article can also be found at http://www.mediaite.com/tv/trump-responds-to-brussels-attack-were-having-problemswith-the-muslims/.
18. Attached as Exhibit Q is a true and correct copy of the Declaration of Reema Khaled Dahman, Ali v. Trump, No. 17-0135 (W.D. Wash. Feb. 6, 2017).
19. Attached as Exhibit R is a true and correct copy of the Declaration of Babek Yaghoubi Moghadam, Loughalam v. Trump, No. 17-10154 (D. Mass. Feb. 3, 2017).
20. A true and correct copy of the January 29, 2017 New York Times article by Benjamin Mueller and Matthew Rosenberg entitled “Disorder at Airports as Travelers Are Detained Without Lawyers,” is attached hereto as Exhibit S. The article can also be found at https://nyti.ms/2jHM3ba.
21. Attached as Exhibit T is a true and correct copy of the Declaration of Tareq Aqel Mohamed Aziz, Aziz v. Trump, No. 17-0116 (E.D. Va. Feb. 8, 2017).
22. Attached as Exhibit U is a true and correct copy of the Declaration of Ali Sanie, Louhghalam v. Trump, No. 17-10154 (D. Mass. Feb. 3, 2017).
3

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 4 of 88 PageID #: 2153
23. Attached as Exhibit V is a true and correct copy of the Declaration of Leily Amirsardary, Louhghalam v. Trump, No. 17-10154 (D. Mass. Feb. 3, 2017).
24. Attached as Exhibit W is a true and correct copy of the Declaration of Zahrasadat Mirrazi Renani, Loughalam v. Trump, No. 17-10154 (D. Mass. Feb. 3, 2017).
25. Attached as Exhibit X is a true and correct copy of the Declaration of Najwa Elyazgi, Aziz v Trump, No. 17-0116 (E.D. Va. filed on Feb. 8, 2017).
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, based on my personal knowledge. Executed at Los Angeles, California on February 16, 2017.
Nicholas Espíritu NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 1600 Los Angeles, CA 90010 (213) 639-3900 espiritu@nilc.org
4

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 5 of 88 PageID #: 2154
EXHIBIT A

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?6ª oÔf ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó5Í5Ì

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?7ª oÓf ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó5Í6Ï

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?8ª oÌf ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó5Í7Î

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?9ª oÏf ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó5Í8Í

›Cøa#sªe Ô1Ê:Ô1È7Û-)c™vÛ-+0+0Ô4Ô8Í0Û-‘C”BﬁAÛÃ›Dﬁocu‹m±e)n´t41ª559¨-1ÔÔÔFile⁄d8¥ª0º2/+1Ó6Ò/Ô1Ì7ÒÔÈPag–eø?1ª0 Îof±8@ 8ÓÓPa–gøe?IªDA‹#˝: 2Ô1Ó5Í9È

›Cøa#sªe Ô1Ê:Ô1È7Û-)c™vÛ-+0+0Ô4Ô8Í0Û-‘C”BﬁAÛÃ›Dﬁocu‹m±e)n´t41ª559¨-1ÔÔÔFile⁄d8¥ª0º2/+1Ó6Ò/Ô1Ì7ÒÔÈPag–eø?1ª1 Íof±8@ 8ÓÓPa–gøe?IªDA‹#˝: 2Ô1Ó6Í0Ë

›Cøa#sªe Ô1Ê:Ô1È7Û-)c™vÛ-+0+0Ô4Ô8Í0Û-‘C”BﬁAÛÃ›Dﬁocu‹m±e)n´t41ª559¨-1ÔÔÔFile⁄d8¥ª0º2/+1Ó6Ò/Ô1Ì7ÒÔÈPag–eø?1ª2 Èof±8@ 8ÓÓPa–gøe?IªDA‹#˝: 2Ô1Ó6Í1Á

›Cøa#sªe Ô1Ê:Ô1È7Û-)c™vÛ-+0+0Ô4Ô8Í0Û-‘C”BﬁAÛÃ›Dﬁocu‹m±e)n´t41ª559¨-1ÔÔÔFile⁄d8¥ª0º2/+1Ó6Ò/Ô1Ì7ÒÔÈPag–eø?1ª3 Ëof±8@ 8ÓÓPa–gøe?IªDA‹#˝: 2Ô1Ó6È2+

›Cøa#sªe Ô1Ê:Ô1È7Û-)c™vÛ-+0+0Ô4Ô8Í0Û-‘C”BﬁAÛÃ›Dﬁocu‹m±e)n´t41ª559¨-1ÔÔÔFile⁄d8¥ª0º2/+1Ó6Ò/Ô1Ì7ÒÔÈPag–eø?1ª4 Áof±8@ 8ÓÓPa–gøe?IªDA‹#˝: 2Ô1Ó6È3Ô

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?1ª5Ôo+f ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó6È4Ó

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?1ª6ÔoÔf ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó6È5Ì

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?1ª7ÔoÓf ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó6È6Ï

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?1ª8ÔoÌf ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó6È7Î

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?1ª9ÔoÏf ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó6È8Í

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?2ª0ÔoÎf ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó6È9È

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?2ª1ÔoÍf ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó7È0Ë

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?2ª2ÔoÈf ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó7È1Á

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?2ª3ÔoËf ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó7Ë2+

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?2ª4ÔoÁf ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó7Ë3Ô

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?2ª5Óo+f ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó7Ë4Ó

›Cøa#sªeÔ1ÊÔ:1È7Û)-c™vÛ+-0+0Ô4Ô8Í0Û‘-C”BﬁAÛÃ›Dﬁocu‹m±)e´n4t 1ª559¨-Ô1ÔÔFil⁄e8d¥ª0º2+/1Ó6ÒÔ/1Ì7ÒÔÈPa–gøe?2ª6ÓoÔf ±8@8ÓPÓa–gøe?IDªA‹#:˝2Ô1Ó7Ë5Ì

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 27 of 88 PageID #: 2176

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 28 of 88 PageID #: 2177
EXHIBIT B

Case 1:17-Ccavs-0e0: 41870-3-C51B0A5, D02o/c0u6m/2e0n1t71,5ID9-:110F3i0le2d89022,/1D6k/t1E7ntrPy:a2g8e-29, Poaf g8e8 2Paogf 1e7ID #: 2178

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 17-35105

STATE OF WASHINGTON, et al.

)

)

Plaintiffs-Appellees, )

) JOINT DECLARATION OF

vs.

) MADELEINE K. ALBRIGHT,

) AVRIL D. HAINES

) MICHAEL V. HAYDEN

) JOHN F. KERRY

) JOHN E. McLAUGHLIN

DONALD J. TRUMP, President of the

) LISA O. MONACO

United States, et al.,

) MICHAEL J. MORELL

) JANET A. NAPOLITANO

Defendants-Appellants. ) LEON E. PANETTA

) SUSAN E. RICE

)

)

)

We, Madeleine K. Albright, Avril D. Haines, Michael V. Hayden, John F. Kerry, John E. McLaughlin, Lisa O. Monaco, Michael J. Morell, Janet A. Napolitano, Leon E. Panetta, and Susan E. Rice declare as follows:
1. We are former national security, foreign policy, and intelligence officials in the United States Government:
a. Madeleine K. Albright served as Secretary of State from 1997 to 2001. A refugee and naturalized American citizen, she served as U.S. Permanent Representative to the United Nations from 1993 to 1997 and has been a member of the Central Intelligence Agency External Advisory Board since 2009 and the Defense Policy Board since 2011, in which capacities she has received assessments of threats facing the United States.
b. Avril D. Haines served as Deputy Director of the Central Intelligence Agency from 2013 to 2015, and as Deputy National Security Advisor from 2015 to January 20, 2017.
c. Michael V. Hayden served as Director of the National Security Agency from 1999 to 2005, and Director of the Central Intelligence Agency from 2006 to 2009.
d. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.

Case 1:17-Ccavs-0e0: 41870-3-C51B0A5, D02o/c0u6m/2e0n1t71,5ID9-:110F3i0le2d89022,/1D6k/t1E7ntrPy:a2g8e-320, Poaf g8e8 3Paogf 1e7ID #: 2179
e. John E. McLaughlin served as Deputy Director of the Central Intelligence Agency from 2000-2004 and Acting Director of CIA in 2004. His duties included briefing President-elect Bill Clinton and President George W. Bush.
f. Lisa O. Monaco served as Assistant to the President for Homeland Security and Counterterrorism and Deputy National Security Advisor from 2013 to January 20, 2017.
g. Michael J. Morell served as Acting Director of the Central Intelligence Agency in 2011 and from 2012 to 2013, Deputy Director from 2010 to 2013, and as a career official of the CIA from 1980. His duties included briefing President George W. Bush on September 11, 2001, and briefing President Barack Obama regarding the May 2011 raid on Osama bin Laden.
h. Janet A. Napolitano served as Secretary of Homeland Security from 2009 to 2013.
i. Leon E. Panetta served as Director of the Central Intelligence Agency from 2009-11 and as Secretary of Defense from 2011-13.
j. Susan E. Rice served as U.S. Permanent Representative to the United Nations from 2009-13 and as National Security Advisor from 2013 to January 20, 2017.
2. We have collectively devoted decades to combatting the various terrorist threats that the United States faces in a dynamic and dangerous world. We have all held the highest security clearances. A number of us have worked at senior levels in administrations of both political parties. Four of us (Haines, Kerry, Monaco and Rice) were current on active intelligence regarding all credible terrorist threat streams directed against the U.S. as recently as one week before the issuance of the Jan. 27, 2017 Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (“Order”).
3. We all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. We all are nevertheless unaware of any specific threat that would justify the travel ban established by the Executive Order issued on January 27, 2017. We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer. In our professional opinion, this Order cannot be justified on national security or foreign policy grounds. It does not perform its declared task of “protecting the nation from foreign terrorist entry into the United States.” To the contrary, the Order disrupts thousands of lives, including those of refugees and visa holders all previously vetted by standing procedures that the Administration has not shown to be inadequate. It could do long-term damage to our national security and foreign policy interests, endangering U.S. troops in the field and disrupting counterterrorism and national security partnerships. It will aid ISIL’s propaganda effort and serve its recruitment message by feeding into the narrative that the United States is at war with Islam. It will hinder relationships with the very communities that law enforcement professionals need to address the threat. It will have a damaging humanitarian and economic impact on the lives and jobs of American citizens and residents. And apart from all of these concerns, the Order offends our nation’s laws and values.
2

Case 1:17-Ccavs-0e0: 41870-3-C51B0A5, D02o/c0u6m/2e0n1t71,5ID9-:110F3i0le2d89022,/1D6k/t1E7ntrPy:a2g8e-321, Poaf g8e8 4Paogf 1e7ID #: 2180
4. There is no national security purpose for a total bar on entry for aliens from the seven named countries. Since September 11, 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order. Very few attacks on U.S. soil since September 11, 2001 have been traced to foreign nationals at all. The overwhelming majority of attacks have been committed by U.S. citizens. The Administration has identified no information or basis for believing there is now a heightened or particularized future threat from the seven named countries. Nor is there any rational basis for exempting from the ban particular religious minorities (e.g., Christians), suggesting that the real target of the ban remains one religious group (Muslims). In short, the Administration offers no reason why it abruptly shifted to group-based bans when we have a tested individualized vetting system developed and implemented by national security professionals across the government to guard the homeland, which is continually re-evaluated to ensure that it is effective.
5. In our professional opinion, the Order will harm the interests of the United States in many respects:
a. The Order will endanger U.S. troops in the field. Every day, American soldiers work and fight alongside allies in some of the named countries who put their lives on the line to protect Americans. For example, allies who would be barred by the Order work alongside our men and women in Iraq fighting against ISIL. To the extent that the Order bans travel by individuals cooperating against ISIL, we risk placing our military efforts at risk by sending an insulting message to those citizens and all Muslims.
b. The Order will disrupt key counterterrorism, foreign policy, and national security partnerships that are critical to our obtaining the necessary information sharing and collaboration in intelligence, law enforcement, military, and diplomatic channels to address the threat posed by terrorist groups such as ISIL. The international criticism of the Order has been intense, and it has alienated U.S. allies. It will strain our relationships with partner countries in Europe and the Middle East, on whom we rely for vital counterterrorism cooperation, undermining years of effort to bring them closer. By alienating these partners, we could lose access to the intelligence and resources necessary to fight the root causes of terror or disrupt attacks launched from abroad, before an attack occurs within our borders.
c. The Order will endanger intelligence sources in the field. For current information, our intelligence officers may rely on human sources in some of the countries listed. The Order breaches faith with those very sources, who have risked much or all to keep Americans safe – and whom our officers had promised always to protect with the full might of our government and our people.
d. Left in place, the Executive Order will likely feed the recruitment narrative of ISIL and other extremists that portray the United States as at war with Islam. As government officials, we took every step we could to counter violent extremism. Because of the Order’s disparate impact against Muslim travelers and immigrants, it feeds ISIL’s narrative and sends the wrong message to the Muslim community here at home and all over the world: that
3

Case 1:17-Ccavs-0e0: 41870-3-C51B0A5, D02o/c0u6m/2e0n1t71,5ID9-:110F3i0le2d89022,/1D6k/t1E7ntrPy:a2g8e-322, Poaf g8e8 5Paogf 1e7ID #: 2181
the U.S. government is at war with them based on their religion. The Order may even endanger Christian communities, by handing ISIL a recruiting tool and propaganda victory that spreads their message that the United States is engaged in a religious war. e. The Order will disrupt ongoing law enforcement efforts. By alienating Muslim-American communities in the United States, it will harm our efforts to enlist their aid in identifying radicalized individuals who might launch attacks of the kind recently seen in San Bernardino and Orlando. f. The Order will have a devastating humanitarian impact. When the Order issued, those disrupted included women and children who had been victimized by actual terrorists. Tens of thousands of travelers today face deep uncertainty about whether they may travel to or from the United States: for medical treatment, study or scholarly exchange, funerals or other pressing family reasons. While the Order allows for the Secretaries of State and Homeland Security to agree to admit travelers from these countries on a case-by-case basis, in our experience it would be unrealistic for these overburdened agencies to apply such procedures to every one of the thousands of affected individuals with urgent and compelling needs to travel. g. The Order will cause economic damage to American citizens and residents. The Order will affect many foreign travelers, particularly students, who annually inject hundreds of billions into the U.S. economy, supporting well over a million U.S. jobs. Since the Order issued, affected companies have noted its adverse impacts on many strategic economic sectors, including defense, technology, medicine, culture and others.
6. As a national security measure, the Order is unnecessary. National security-based immigration restrictions have consistently been tailored to respond to: (1) specific, credible threats based on individualized information, (2) the best available intelligence and (3) thorough interagency legal and policy review. This Order rests not on such tailored grounds, but rather, on (1) general bans (2) not supported by any new intelligence that the Administration has claimed, or of which we are aware, and (3) not vetted through careful interagency legal and policy review. Since the 9/11 attacks, the United States has developed a rigorous system of security vetting, leveraging the full capabilities of the law enforcement and intelligence communities. This vetting is applied to travelers not once, but multiple times. Refugees receive the most thorough vetting of any traveler to the United States, taking on the average more than a year. Successive administrations have continually worked to improve this vetting through robust informationsharing and data integration to identify potential terrorists without resorting to a blanket ban on all aliens and refugees. Because various threat streams are constantly mutating, as government officials, we sought continually to improve that vetting, as was done in response to particular threats identified by U.S. intelligence in 2011 and 2015. Placing additional restrictions on individuals from certain countries in the visa waiver program –as has been done on occasion in the past – merely allows for more individualized vettings before individuals with particular passports are permitted to travel to the United States.
7. In our professional opinion, the Order was ill-conceived, poorly implemented and ill-explained. The “considered judgment” of the President in the prior cases where courts have
4

Case 1:17-Ccavs-0e0: 41870-3-C51B0A5, D02o/c0u6m/2e0n1t71,5ID9-:110F3i0le2d89022,/1D6k/t1E7ntrPy:a2g8e-323, Poaf g8e8 6Paogf 1e7ID #: 2182
deferred was based upon administrative records showing that the President’s decision rested on cleared views from expert agencies with broad experience on the matters presented to him. Here, there is little evidence that the Order underwent a thorough interagency legal and policy processes designed to address current terrorist threats, which would ordinarily include a review by the career professionals charged with implementing and carrying out the Order, an interagency legal review, and a careful policy analysis by Deputies and Principals (at the cabinet level) before policy recommendations are submitted to the President. We know of no interagency process underway before January 20, 2017 to change current vetting procedures, and the repeated need for the Administration to clarify confusion after the Order issued suggest that that Order received little, if any advance scrutiny by the Departments of State, Justice, Homeland Security or the Intelligence Community. Nor have we seen any evidence that the Order resulted from experienced intelligence and security professionals recommending changes in response to identified threats.
8. The Order is of unprecedented scope. We know of no case where a President has invoked his statutory authority to suspend admission for such a broad class of people. Even after 9/11, the U.S. Government did not invoke the provisions of law cited by the Administration to broadly bar entrants based on nationality, national origin, or religious affiliation. In past cases, suspensions were limited to particular individuals or subclasses of nationals who posed a specific, articulable threat based on their known actions and affiliations. In adopting this Order, the Administration alleges no specific derogatory factual information about any particular recipient of a visa or green card or any vetting step omitted by current procedures.
9. Maintaining the district court’s temporary restraining order while the underlying legal issues are being adjudicated would not jeopardize national security. It would simply preserve the status quo ante, still requiring that individuals be subjected to all the rigorous legal vetting processes that are currently in place. Reinstating the Executive Order would wreak havoc on innocent lives and deeply held American values. Ours is a nation of immigrants, committed to the faith that we are all equal under the law and abhor discrimination, whether based on race, religion, sex, or national origin. As government officials, we sought diligently to protect our country, even while maintaining an immigration system free from intentional discrimination, that applies no religious tests, and that measures individuals by their merits, not stereotypes of their countries or groups. Blanket bans of certain countries or classes of people are beneath the dignity of the nation and Constitution that we each took oaths to protect. Rebranding a proposal first advertised as a “Muslim Ban” as “Protecting the Nation from Foreign Terrorist Entry into the United States” does not disguise the Order’s discriminatory intent, or make it necessary, effective, or faithful to America’s Constitution, laws, or values.
5

Case 1:17-Ccavs-0e0: 41870-3-C51B0A5, D02o/c0u6m/2e0n1t71,5ID9-:110F3i0le2d89022,/1D6k/t1E7ntrPy:a2g8e-324, Poaf g8e8 7Paogf 1e7ID #: 2183
10. For all of the foregoing reasons, in our professional opinion, the January 27 Executive Order does not further – but instead harms – sound U.S. national security and foreign policy.
Respectfully submitted, s/MADELEINE K. ALBRIGHT* s/AVRIL D. HAINES s/MICHAEL V. HAYDEN s/JOHN F. KERRY s/JOHN E. McLAUGHLIN s/LISA O. MONACO s/MICHAEL J. MORELL s/JANET A. NAPOLITANO s/LEON E. PANETTA s/SUSAN E. RICE
*All original signatures are on file with Harold Hongju Koh, Rule of Law Clinic, Yale Law School, New Haven, CT. 06520-8215 203-432-4932 We declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. [Individual signature pages follow]
6

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 35 of 88 PageID #: 2184

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 36 of 88 PageID #: 2185

Case 1:17C-cavs-e0:01478-03-5C1B0A5, 0D2o/0c6u/m20e1n7t ,1I5D9:-103F0il2e8d9022, /D16kt/E17ntryP:a2g8e-23,7Poafg8e81P0aogfe1ID7 #: 2186

Case 1:17C-cavs-e0:01478-03-5C1B0A5, 0D2o/0c6u/m20e1n7t ,1I5D9:-103F0il2e8d9022, /D16kt/E17ntryP:a2g8e-23,8Poafg8e81P1aogfe1ID7 #: 2187

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 39 of 88 PageID #: 2188

Case 1:17C-cavs-e0:01478-03-5C1B0A5, 0D2o/0c6u/m20e1n7t ,1I5D9:-103F0il2e8d9022, /D16kt/E17ntryP:a2g8e-24,0Poafg8e81P3aogfe1ID7 #: 2189

Case 1:17C-cavs-e0:01478-03-5C1B0A5, 0D2o/0c6u/m20e1n7t ,1I5D9:-103F0il2e8d9022, /D16kt/E17ntryP:a2g8e-24,1Poafg8e81P4aogfe1ID7 #: 2190

Case 1:17C-cavs-e0:01478-03-5C1B0A5, 0D2o/0c6u/m20e1n7t ,1I5D9:-103F0il2e8d9022, /D16kt/E17ntryP:a2g8e-24,2Poafg8e81P5aogfe1ID7 #: 2191
EXECUTED this 5th day of February, 2017 /s/
JANET A. NAPOLITANO

Case 1:172C-cavs!l-Ae0X:01478-0_3-5C1_B0A5, 0D2o/0c6u/m20e1n7t ,1IV5D9:-11P03HF0iAl2eN8dD902D2, /LD1L6kPt/E17ntryP:a2g8e-24,3Poafg8e81P6aogfe1ID7 #: 2192

Case 1:17C-cavs-e0:01478-03-5C1B0A5, 0D2o/0c6u/m20e1n7t ,1I5D9:-103F0il2e8d9022, /D16kt/E17ntryP:a2g8e-24,4Poafg8e81P7aogfe1ID7 #: 2193
EXECUTED this 5th day of February, 2017 /s/
SUSAN E. RICE

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 45 of 88 PageID #: 2194
EXHIBIT

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 46 of 88 PageID #: 2195

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 47 of 88 PageID #: 2196

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 48 of 88 PageID #: 2197

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 49 of 88 PageID #: 2198
EXHIBIT

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 50 of 88 PageID #: 2199

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 51 of 88 PageID #: 2200

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 52 of 88 PageID #: 2201

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 53 of 88 PageID #: 2202

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 54 of 88 PageID #: 2203

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 55 of 88 PageID #: 2204

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 56 of 88 PageID #: 2205
EXHIBIT

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 57 of 88 PageID #: 2206

The World Factbook — Central Intelligence Agency Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 58 of 88 PageID #: 2207

Armenia (../geos/am.html)

Armenian Apostolic 92.6%, Evangelical 1%, other 2.4%, none 1.1%, unspecified 2.9% (2011 est.)

Aruba (../geos/aa.html)

Roman Catholic 75.3%, Protestant 4.9% (includes Methodist 0.9%, Adventist 0.9%, Anglican 0.4%, other Protestant 2.7%), Jehovah's Witness 1.7%, other 12%, none 5.5%, unspecified 0.5% (2010 est.)

Australia (../geos/as.html)

Protestant 30.1% (Anglican 17.1%, Uniting Church 5.0%, Presbyterian and Reformed 2.8%, Baptist, 1.6%, Lutheran 1.2%, Pentecostal 1.1%, other Protestant 1.3%), Catholic 25.3% (Roman Catholic 25.1%, other Catholic 0.2%), other Christian 2.9%, Orthodox 2.8%, Buddhist 2.5%, Muslim 2.2%, Hindu 1.3%, other 1.3%, none 22.3%, unspecified 9.3% (2011 est.)

Austria (../geos/au.html) Catholic 73.8% (includes Roman Catholic 73.6%, other Catholic 0.2%), Protestant 4.9%, Muslim 4.2%, Orthodox 2.2%, other 0.8% (includes other Christian), none 12%, unspecified 2% (2001 est.)

Azerbaijan (../geos/aj.html)

Muslim 96.9% (predominantly Shia), Christian 3%, other <0.1, unaffiliated <0.1 (2010 est.) note: religious affiliation is still nominal in Azerbaijan; percentages for actual practicing adherents are much lower

Bahamas, The (../geos/bf.html)

Protestant 69.9% (includes Baptist 34.9%, Anglican 13.7%, Pentecostal 8.9% Seventh Day Adventist 4.4%, Methodist 3.6%, Church of God 1.9%, Brethren 1.6%), Roman Catholic 12%, other Christian 13% (includes Jehovah's Witness 1.1%), other 0.6%, none 1.9%, unspecified 2.6% (2010 est.)

Bahrain (../geos/ba.html) Muslim 70.3%, Christian 14.5%, Hindu 9.8%, Buddhist 2.5%, Jewish 0.6%, folk religion <.1, unaffiliated 1.9%, other 0.2% (2010 est.)

Bangladesh (../geos/bg.html) Barbados (../geos/bb.html)

Muslim 89.1%, Hindu 10%, other 0.9% (includes Buddhist, Christian) (2013 est.)
Protestant 66.4% (includes Anglican 23.9%, other Pentecostal 19.5%, Adventist 5.9%, Methodist 4.2%, Wesleyan 3.4%, Nazarene 3.2%, Church of God 2.4%, Baptist 1.8%, Moravian 1.2%, other Protestant 0.9%), Roman Catholic 3.8%, other Christian 5.4% (includes Jehovah's Witness 2.0%, other 3.4%), Rastafarian 1%, other 1.5%, none 20.6%, unspecified 1.2% (2010 est.)

Belarus (../geos/bo.html) Orthodox 48.3%, Catholic 7.1%, other 3.5%, non-believers 41.1% (2011 est.)

Belgium (../geos/be.html) Belize (../geos/bh.html)

Roman Catholic 75%, other (includes Protestant) 25%
Roman Catholic 40.1%, Protestant 31.5% (includes Pentecostal 8.4%, Seventh Day Adventist 5.4%, Anglican 4.7%, Mennonite 3.7%, Baptist 3.6%, Methodist 2.9%, Nazarene 2.8%), Jehovah's Witness 1.7%, other 10.5% (includes Baha'i, Buddhist, Hindu, Morman, Muslim, Rastafarian), unknown 0.6%, none 15.5% (2010 est.)

Benin (../geos/bn.html)

Muslim 27.7%, Catholic 25.5%, Protestant 13.5% (Celestial 6.7%, Methodist 3.4%, other Protestant 3.4%), Vodoun 11.6%, other Christian 9.5%, other traditional religions 2.6%, other 2.6%, none 5.8% (2013 est.)

Bermuda (../geos/bd.html)

Protestant 46.2% (includes Anglican 15.8%, African Methodist Episcopal 8.6%, Seventh Day Adventist 6.7, Pentecostal 3.5%, Methodist 2.7%, Presbyterian 2.0 %, Church of God 1.6%, Baptist 1.2%, Salvation Army 1.1%, Brethren 1.0%, other Protestant 2.0%), Roman Catholic 14.5%, Jehovah's Witness 1.3%, other Christian 9.1%, Muslim 1%, other 3.9%, none 17.8%, unspecified 6.2% (2010 est.)

Bhutan (../geos/bt.html) Lamaistic Buddhist 75.3%, Indian- and Nepalese-influenced Hinduism 22.1%, other 2.6% (2005 est.)

https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html

2/16/2017

The World Factbook — Central Intelligence Agency Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 59 of 88 PageID #: 2208

Bolivia (../geos/bl.html) Roman Catholic 76.8%, Evangelical and Pentecostal 8.1%, Protestant 7.9%, other 1.7%, none 5.5% (2012 est.)

Bosnia and Herzegovina (../geos/bk.html)

Muslim 50.7%, Orthodox 30.7%, Roman Catholic 15.2%, atheist 0.8%, agnostic 0.3%, other 1.2%, undeclared/no answer 1.1% (2013 est.)

Botswana (../geos/bc.html)

Christian 79.1%, Badimo 4.1%, other 1.4% (includes Baha'i, Hindu, Muslim, Rastafarian), none 15.2%, unspecified 0.3% (2011 est.)

Brazil (../geos/br.html)

Roman Catholic 64.6%, other Catholic 0.4%, Protestant 22.2% (includes Adventist 6.5%, Assembly of God 2.0%, Christian Congregation of Brazil 1.2%, Universal Kingdom of God 1.0%, other Protestant 11.5%), other Christian 0.7%, Spiritist 2.2%, other 1.4%, none 8%, unspecified 0.4% (2010 est.)

British Virgin Islands (../geos/vi.html)

Protestant 70.2% (Methodist 17.6%, Church of God 10.4%, Anglican 9.5%, Seventh Day Adventist 9.0%, Pentecostal 8.2%, Baptist 7.4%, New Testament Church of God 6.9%, other Protestant 1.2%), Roman Catholic 8.9%, Jehovah's Witness 2.5%, Hindu 1.9%, other 6.2%, none 7.9%, unspecified 2.4% (2010 est.)

Brunei (../geos/bx.html) Muslim (official) 78.8%, Christian 8.7%, Buddhist 7.8%, other (includes indigenous beliefs) 4.7% (2011 est.)

Bulgaria (../geos/bu.html)

Eastern Orthodox 59.4%, Muslim 7.8%, other (including Catholic, Protestant, Armenian Apostolic Orthodox, and Jewish) 1.7%, none 3.7%, unspecified 27.4% (2011 est.)

Burkina Faso (../geos/uv.html)

Muslim 61.6%, Catholic 23.2%, traditional/animist 7.3%, Protestant 6.7%, other/no answer 0.2%, none 0.9% (2010 est.)

Burma (../geos/bm.html) Buddhist 87.9%, Christian 6.2%, Muslim 4.3%, Animist 0.8%, Hindu 0.5%, other 0.2%, none 0.1% note: religion estimate is based on the 2014 national census, including an estimate for the non-enumerated population of Rakhine State, which is assumed to mainly affiliate with the Islamic faith (2014 est.)

Burundi (../geos/by.html) Catholic 62.1%, Protestant 23.9% (includes Adventist 2.3% and other Protestant 21.6%), Muslim 2.5%, other 3.6%, unspecified 7.9% (2008 est.)

Cabo Verde (../geos/cv.html)

Roman Catholic 77.3%, Protestant 4.6% (includes Church of the Nazarene 1.7%, Adventist 1.5%, Assembly of God 0.9%, Universal Kingdom of God 0.4%, and God and Love 0.1%), other Christian 3.4% (includes Christian Rationalism 1.9%, Jehovah's Witness 1%, and New Apostolic 0.5%), Muslim 1.8%, other 1.3%, none 10.8%, unspecified 0.7% (2010 est.)

Cambodia (../geos/cb.html) Cameroon (../geos/cm.html)

Buddhist (official) 96.9%, Muslim 1.9%, Christian 0.4%, other 0.8% (2008 est.)
Catholic 38.4%, Protestant 26.3%, other Christian 4.5%, Muslim 20.9%, animist 5.6%, other 1%, non-believer 3.2% (2005 est.)

Canada (../geos/ca.html) Catholic 39% (includes Roman Catholic 38.8%, other Catholic .2%), Protestant 20.3% (includes United Church 6.1%, Anglican 5%, Baptist 1.9%, Lutheran 1.5%, Pentecostal 1.5%, Presbyterian 1.4%, other Protestant 2.9%), Orthodox 1.6%, other Christian 6.3%, Muslim 3.2%, Hindu 1.5%, Sikh 1.4%, Buddhist 1.1%, Jewish 1%, other 0.6%, none 23.9% (2011 est.)

Cayman Islands (../geos/cj.html)

Protestant 67.8% (includes Church of God 22.6%, Seventh Day Adventist 9.4%, Presbyterian/United Church 8.6%, Baptist 8.3%,Pentecostal 7.1%, nondenominational 5.3%, Anglican 4.1%, Wesleyan Holiness 2.4%), Roman Catholic 14.1%, Jehovah's Witness 1.1%, other 7%, none 9.3%, unspecified 0.7% (2010 est.)

Central African Republic indigenous beliefs 35%, Protestant 25%, Roman Catholic 25%, Muslim 15%

(../geos/ct.html)

note: animistic beliefs and practices strongly influence the Christian majority

https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html

2/16/2017

The World Factbook — Central Intelligence Agency Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 60 of 88 PageID #: 2209

Chad (../geos/cd.html)

Muslim 58.4%, Catholic 18.5%, Protestant 16.1%, animist 4%, other 0.5%, none 2.4% (2009 est.)

Chile (../geos/ci.html)

Roman Catholic 66.7%, Evangelical or Protestant 16.4%, Jehovah's Witnesses 1%, other 3.4%, none 11.5%, unspecified 1.1% (2012 est.)

China (../geos/ch.html)

Buddhist 18.2%, Christian 5.1%, Muslim 1.8%, folk religion 21.9%, Hindu < 0.1%, Jewish < 0.1%, other 0.7% (includes Daoist (Taoist)), unaffiliated 52.2% note: officially atheist (2010 est.)

Christmas Island (../geos/kt.html)

Buddhist 16.9%, Christian 16.4%, Muslim 14.8%, other 1.3%, none 9.2%, unspecified 41.5% (2011 est.)

Cocos (Keeling) Islands (../geos/ck.html) Colombia (../geos/co.html) Comoros (../geos/cn.html)

Sunni Muslim 80%, other 20% (2002 est.)
Roman Catholic 90%, other 10% Sunni Muslim 98%, Roman Catholic 2% note: Islam is the state religion

Congo, Democratic Republic of the (../geos/cg.html) Congo, Republic of the (../geos/cf.html)

Roman Catholic 50%, Protestant 20%, Kimbanguist 10%, Muslim 10%, other (includes syncretic sects and indigenous beliefs) 10%
Roman Catholic 33.1%, Awakening Churches/Christian Revival 22.3%, Protestant 19.9%, Salutiste 2.2%, Muslim 1.6%, Kimbanguiste 1.5%, other 8.1%, none 11.3% (2010 est.)

Cook Islands (../geos/cw.html)

Protestant 62.8% (Cook Islands Christian Church 49.1%, Seventh Day Adventist 7.9%, Assemblies of God 3.7%, Apostolic Church 2.1%), Roman Catholic 17%, Mormon 4.4%, other 8%, none 5.6%, no response 2.2% (2011 est.)

Costa Rica (../geos/cs.html)

Roman Catholic 76.3%, Evangelical 13.7%, Jehovah's Witness 1.3%, other Protestant 0.7%, other 4.8%, none 3.2%

Cote d'Ivoire (../geos/iv.html)

Muslim 40.2%, Catholic 19.4%, Evangelical 19.3%, Methodist 2.5%, other Christian 4.5%, animist or no religion 12.8%, other religion/unspecified 1.4% (2011-12 est.) note: the majority of foreign migrant workers are Muslim (72%) and Christian (18%) (2014 est.)

Croatia (../geos/hr.html) Roman Catholic 86.3%, Orthodox 4.4%, Muslim 1.5%, other 1.5%, unspecified 2.5%, not religious or atheist 3.8% (2011 est.)

Cuba (../geos/cu.html)

nominally Roman Catholic 85%, Protestant, Jehovah's Witnesses, Jewish, Santeria note: prior to CASTRO assuming power

Curacao (../geos/cc.html) Roman Catholic 72.8%, Pentecostal 6.6%, Protestant 3.2%, Adventist 3%, Jehovah's Witness 2%, Evangelical 1.9%, other 3.8%, none 6%, unspecified 0.6% (2011 est.)

Cyprus (../geos/cy.html)

Orthodox Christian 89.1%, Roman Catholic 2.9%, Protestant/Anglican 2%, Muslim 1.8%, Buddhist 1%, other (includes Maronite, Armenian Church, Hindu) 1.4%, unknown 1.1%, none/atheist 0.6% note: data represent only the government-controlled area of Cyprus (2011 est.)

Czechia (../geos/ez.html) Roman Catholic 10.4%, Protestant (includes Czech Brethren and Hussite) 1.1%, other and unspecified 54%, none 34.5% (2011 est.)

Denmark (../geos/da.html)

Evangelical Lutheran (official) 80%, Muslim 4%, other (denominations of less than 1% each, includes Roman Catholic, Jehovah's Witness, Serbian Orthodox Christian, Jewish, Baptist, and Buddhist) 16% (2012 est.)

Djibouti (../geos/dj.html) Muslim 94%, Christian 6%

https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html

2/16/2017

The World Factbook — Central Intelligence Agency Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 61 of 88 PageID #: 2210

Dominica (../geos/do.html)

Roman Catholic 61.4%, Protestant 28.6% (includes Evangelical 6.7%, Seventh Day Adventist 6.1%, Pentecostal 5.6%, Baptist 4.1%, Methodist 3.7%, Church of God 1.2%, other 1.2%), Rastafarian 1.3%, Jehovah's Witness 1.2%, other 0.3%, none 6.1%, unspecified 1.1% (2001 est.)

Dominican Republic (../geos/dr.html)

Roman Catholic 95%, other 5%

Ecuador (../geos/ec.html) Roman Catholic 74%, Evangelical 10.4%, Jehovah's Witness 1.2%, other 6.4%

(includes Mormon Buddhist, Jewish, Spiritualist, Muslim, Hindu, indigenous

religions, African American religions, Pentecostal), atheist 7.9%, agnostic 0.1%

note: data represents persons at least 16 years of age from five Ecuadoran

cities (2012 est.)

Egypt (../geos/eg.html)

Muslim (predominantly Sunni) 90%, Christian (majority Coptic Orthodox, other Christians include Armenian Apostolic, Catholic, Maronite, Orthodox, and Anglican) 10% (2012 est.)

El Salvador (../geos/es.html)

Roman Catholic 57.1%, Protestant 21.2%, Jehovah's Witnesses 1.9%, Mormon 0.7%, other religions 2.3%, none 16.8% (2003 est.)

Equatorial Guinea (../geos/ek.html) Eritrea (../geos/er.html)

nominally Christian and predominantly Roman Catholic, pagan practices Muslim, Coptic Christian, Roman Catholic, Protestant

Estonia (../geos/en.html) Lutheran 9.9%, Orthodox 16.2%, other Christian (including Methodist, SeventhDay Adventist, Roman Catholic, Pentecostal) 2.2%, other 0.9%, none 54.1%, unspecified 16.7% (2011 est.)

Ethiopia (../geos/et.html) Ethiopian Orthodox 43.5%, Muslim 33.9%, Protestant 18.5%, traditional 2.7%, Catholic 0.7%, other 0.6% (2007 est.)

European Union (../geos/ee.html)

Roman Catholic 48%, Protestant 12%, Orthodox 8%, other Christian 4%, Muslim 2%, other 1% (includes Jewish, Sikh, Buddhist, Hindu), atheist 7%, nonbeliever/agnostic 16%, unspecified 2% (2012 est.)

Falkland Islands (Islas Malvinas) (../geos/fk.html) Faroe Islands (../geos/fo.html)

Christian 66%, none 32%, other 2% (2012 est.)
Christian 89.3% (predominantly Evangelical Lutheran), other 0.7%, more than one religion 0.2%, none 3.8%, unspecified 6% (2011 est.)

Fiji (../geos/fj.html)

Protestant 45% (Methodist 34.6%, Assembly of God 5.7%, Seventh Day Adventist 3.9%, and Anglican 0.8%), Hindu 27.9%, other Christian 10.4%, Roman Catholic 9.1%, Muslim 6.3%, Sikh 0.3%, other 0.3%, none 0.8% (2007 est.)

Finland (../geos/fi.html) Lutheran 73.8%, Orthodox 1.1%, other or none 25.1% (2014 est.)

France (../geos/fr.html)

Christian (overwhelmingly Roman Catholic) 63-66%, Muslim 7-9%, Buddhist 0.5-0.75%, Jewish 0.5-0.75%, other 0.5-1.0%, none 23-28% note: France maintains a tradition of secularism and has not officially collected data on religious affiliation since the 1872 national census, which complicates assessments of France's religious composition; an 1872 law prohibiting state authorities from collecting data on individuals' ethnicity or religious beliefs was reaffirmed by a 1978 law emphasizing the prohibition of the collection or exploitation of personal data revealing an individual's race, ethnicity, or political, philosophical, or religious opinions; a 1905 law codified France's separation of church and state (2015 est.)

French Polynesia (../geos/fp.html)

Protestant 54%, Roman Catholic 30%, other 10%, no religion 6%

https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html

2/16/2017

The World Factbook — Central Intelligence Agency Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 62 of 88 PageID #: 2211

Gabon (../geos/gb.html) Catholic 41.9%, Protestant 13.7%, other Christian 32.4%, Muslim 6.4%, animist 0.3%, other 0.3%, none/no answer 5% (2012 est.)

Gambia, The (../geos/ga.html) Gaza Strip (../geos/gz.html)

Muslim 95.7%, Christian 4.2%, none 0.1%, no answer 0.1% (2013 est.)
Muslim 98.0 - 99.0% (predominantly Sunni), Christian <1.0%, other, unaffiliated, unspecified <1.0% note: dismantlement of Israeli settlements was completed in September 2005; Gaza has had no Jewish population since then (2012 est.)

Georgia (../geos/gg.html) Orthodox (official) 83.4%, Muslim 10.7%, Armenian Apostolic 2.9%, other 1.2% (includes Catholic, Jehovah's Witness, Yazidi, Protestant, Jewish), none 0.5%, unspecified/no answer 1.2% (2014 est.)

Germany (../geos/gm.html) Ghana (../geos/gh.html)

Protestant 34%, Roman Catholic 34%, Muslim 3.7%, unaffiliated or other 28.3%
Christian 71.2% (Pentecostal/Charismatic 28.3%, Protestant 18.4%, Catholic 13.1%, other 11.4%), Muslim 17.6%, traditional 5.2%, other 0.8%, none 5.2% (2010 est.)

Gibraltar (../geos/gi.html)

Roman Catholic 78.1%, Church of England 7%, Muslim 4%, other Christian 3.2%, Jewish 2.1%, Hindu 1.8%, other 0.9%, none 2.9% (2001 est.)

Greece (../geos/gr.html) Greek Orthodox (official) 98%, Muslim 1.3%, other 0.7%

Greenland (../geos/gl.html)

Evangelical Lutheran, traditional Inuit spiritual beliefs

Grenada (../geos/gj.html)Roman Catholic 44.6%, Protestant 43.5% (includes Anglican 11.5%, Pentecostal

11.3%, Seventh Day Adventist 10.5%, Baptist 2.9%, Church of God 2.6%,

Methodist 1.8%, Evangelical 1.6%, other 1.3%), Jehovah's Witness 1.1%,

Rastafarian 1.1%, other 6.2%, none 3.6%

Guam (../geos/gq.html) Roman Catholic 85%, other 15% (1999 est.)

Guatemala (../geos/gt.html) Guernsey (../geos/gk.html)

Roman Catholic, Protestant, indigenous Mayan beliefs
Protestant (Anglican, Presbyterian, Baptist, Congregational, Methodist), Roman Catholic

Guinea-Bissau (../geos/pu.html)

Muslim 45.1%, Christian 22.1%, animist 14.9%, none 2%, unspecified 15.9% (2008 est.)

Guinea (../geos/gv.html) Muslim 86.7%, Christian 8.9%, animist/other/none 4.4% (2012 est.)

Guyana (../geos/gy.html) Protestant 30.5% (Pentecostal 16.9%, Anglican 6.9%, Seventh Day Adventist 5%, Methodist 1.7%), Hindu 28.4%, Roman Catholic 8.1%, Muslim 7.2%, Jehovah's Witness 1.1%, other Christian 17.7%, other 1.9%, none 4.3%, unspecified 0.9% (2002 est.)

Haiti (../geos/ha.html)

Roman Catholic (official) 54.7%, Protestant 28.5% (Baptist 15.4%, Pentecostal 7.9%, Adventist 3%, Methodist 1.5%, other 0.7%), voodoo (official) 2.1%, other 4.6%, none 10.2% note: many Haitians practice elements of voodoo in addition to another religion, most often Roman Catholicism; voodoo was recognized as an official religion in 2003

Holy See (Vatican City) (../geos/vt.html) Honduras (../geos/ho.html) Hong Kong (../geos/hk.html)

Roman Catholic Roman Catholic 97%, Protestant 3% eclectic mixture of local religions 90%, Christian 10%

https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html

2/16/2017

The World Factbook — Central Intelligence Agency Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 63 of 88 PageID #: 2212

Hungary (../geos/hu.html)

Roman Catholic 37.2%, Calvinist 11.6%, Lutheran 2.2%, Greek Catholic 1.8%, other 1.9%, none 18.2%, unspecified 27.2% (2011 est.)

Iceland (../geos/ic.html) Evangelical Lutheran Church of Iceland (official) 73.8%, Roman Catholic 3.6%, Reykjavik Free Church 2.9%, Hafnarfjorour Free Church 2%, The Independent Congregation 1%, other religions 3.9% (includes Pentecostal and Asatru Association), none 5.6%, other or unspecified 7.2% (2015 est.)

India (../geos/in.html)

Hindu 79.8%, Muslim 14.2%, Christian 2.3%, Sikh 1.7%, other and unspecified 2% (2011 est.)

Indonesia (../geos/id.html)

Muslim 87.2%, Christian 7%, Roman Catholic 2.9%, Hindu 1.7%, other 0.9% (includes Buddhist and Confucian), unspecified 0.4% (2010 est.)

Iran (../geos/ir.html)

Muslim (official) 99.4% (Shia 90-95%, Sunni 5-10%), other (includes Zoroastrian, Jewish, and Christian) 0.3%, unspecified 0.4% (2011 est.)

Iraq (../geos/iz.html)

Muslim (official) 99% (Shia 60%-65%, Sunni 32%-37%), Christian 0.8%, Hindu <0.1, Buddhist <0.1, Jewish <0.1, folk religion <0.1, unafilliated 0.1, other <0.1 note: while there has been voluntary relocation of many Christian families to northern Iraq, recent reporting indicates that the overall Christian population may have dropped by as much as 50 percent since the fall of the SADDAM Husayn regime in 2003, with many fleeing to Syria, Jordan, and Lebanon (2010 est.)

Ireland (../geos/ei.html) Roman Catholic 84.7%, Church of Ireland 2.7%, other Christian 2.7%, Muslim 1.1%, other 1.7%, unspecified 1.5%, none 5.7% (2011 est.)

Isle of Man (../geos/im.html)

Protestant (Anglican, Methodist, Baptist, Presbyterian, Society of Friends), Roman Catholic

Israel (../geos/is.html) Jewish 74.8%, Muslim 17.6%, Christian 2%, Druze 1.6%, other 4% (2015 est.)

Italy (../geos/it.html)

Christian 80% (overwhelmingly Roman Catholic with very small groups of Jehovah's Witnesses and Protestants), Muslim (about 800,000 to 1 million), atheist and agnostic 20%

Jamaica (../geos/jm.html)

Protestant 64.8% (includes Seventh Day Adventist 12.0%, Pentecostal 11.0%, Other Church of God 9.2%, New Testament Church of God 7.2%, Baptist 6.7%, Church of God in Jamaica 4.8%, Church of God of Prophecy 4.5%, Anglican 2.8%, United Church 2.1%, Methodist 1.6%, Revived 1.4%, Brethren 0.9%, and Moravian 0.7%), Roman Catholic 2.2%, Jehovah's Witness 1.9%, Rastafarian 1.1%, other 6.5%, none 21.3%, unspecified 2.3% (2011 est.)

Japan (../geos/ja.html)

Shintoism 79.2%, Buddhism 66.8%, Christianity 1.5%, other 7.1% note: total adherents exceeds 100% because many people practice both Shintoism and Buddhism (2012 est.)

Jersey (../geos/je.html) Protestant (Anglican, Baptist, Congregational New Church, Methodist, Presbyterian), Roman Catholic

Jordan (../geos/jo.html)

Muslim 97.2% (official; predominantly Sunni), Christian 2.2% (majority Greek Orthodox, but some Greek and Roman Catholics, Syrian Orthodox, Coptic Orthodox, Armenian Orthodox, and Protestant denominations), Buddhist 0.4%, Hindu 0.1%, Jewish <0.1, folk religionist <0.1, unaffiliated <0.1, other <0.1 (2010 est.)

Kazakhstan (../geos/kz.html)

Muslim 70.2%, Christian 26.2% (mainly Russian Orthodox), other 0.2%, atheist 2.8%, unspecified 0.5% (2009 est.)

Kenya (../geos/ke.html)

Christian 83% (Protestant 47.7%, Catholic 23.4%, other Christian 11.9%), Muslim 11.2%, Traditionalists 1.7%, other 1.6%, none 2.4%, unspecified 0.2% (2009 est.)

https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html

2/16/2017

The World Factbook — Central Intelligence Agency Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 64 of 88 PageID #: 2213

Kiribati (../geos/kr.html) Roman Catholic 55.8%, Kempsville Presbyterian Church 33.5%, Mormon 4.7%, Baha'i 2.3%, Seventh Day Adventist 2%, other 1.5%, none 0.2%, unspecified 0.05% (2010 est.)

Korea, North (../geos/kn.html)

traditionally Buddhist and Confucianist, some Christian and syncretic Chondogyo (Religion of the Heavenly Way) note: autonomous religious activities now almost nonexistent; governmentsponsored religious groups exist to provide illusion of religious freedom

Korea, South (../geos/ks.html)

Christian 31.6% (Protestant 24.0%, Catholic 7.6%), Buddhist 24.2%, other or unknown 0.9%, none 43.3% (2010 est.)

Kosovo (../geos/kv.html) Muslim 95.6%, Roman Catholic 2.2%, Orthodox 1.5%, other 0.07%, none 0.07%, unspecified 0.6% (2011 est.)

Kuwait (../geos/ku.html) Muslim (official) 76.7%, Christian 17.3%, other and unspecified 5.9% note: represents the total population; about 69% of the population consists of immigrants (2013 est.)

Kyrgyzstan (../geos/kg.html) Laos (../geos/la.html)

Muslim 75%, Russian Orthodox 20%, other 5% Buddhist 66.8%, Christian 1.5%, other 31%, unspecified 0.7% (2005 est.)

Latvia (../geos/lg.html) Lutheran 19.6%, Orthodox 15.3%, other Christian 1%, other 0.4%, unspecified 63.7% (2006)

Lebanon (../geos/le.html) Muslim 54% (27% Sunni, 27% Shia), Christian 40.5% (includes 21% Maronite Catholic, 8% Greek Orthodox, 5% Greek Catholic, 6.5% other Christian), Druze 5.6%, very small numbers of Jews, Baha'is, Buddhists, Hindus, and Mormons note: 18 religious sects recognized (2012 est.)

Lesotho (../geos/lt.html) Christian 80%, indigenous beliefs 20%

Liberia (../geos/li.html) Christian 85.6%, Muslim 12.2%, Traditional 0.6%, other 0.2%, none 1.4% (2008 Census)

Libya (../geos/ly.html)

Muslim (official; virtually all Sunni) 96.6%, Christian 2.7%, Buddhist 0.3%, Hindu <0.1, Jewish <0.1, folk religion <0.1, unafilliated 0.2%, other <0.1 note: non-Sunni Muslims include native Ibadhi Muslims (<1% of the population) and foreign Muslims (2010 est.)

Liechtenstein (../geos/ls.html)

Roman Catholic (official) 75.9%, Protestant Reformed 6.5%, Muslim 5.4%, Lutheran 1.3%, other 2.9%, none 5.4%, unspecified 2.6% (2010 est.)

Lithuania (../geos/lh.html)

Roman Catholic 77.2%, Russian Orthodox 4.1%, Old Believer 0.8%, Evangelical Lutheran 0.6%, Evangelical Reformist 0.2%, other (including Sunni Muslim, Jewish, Greek Catholic, and Karaite) 0.8%, none 6.1%, unspecified 10.1% (2011 est.)

Luxembourg (../geos/lu.html)

Roman Catholic 87%, other (includes Protestant, Jewish, and Muslim) 13% (2000)

Macau (../geos/mc.html) Buddhist 50%, Roman Catholic 15%, none or other 35% (1997 est.)

Macedonia (../geos/mk.html)

Macedonian Orthodox 64.8%, Muslim 33.3%, other Christian 0.4%, other and unspecified 1.5% (2002 est.)

Madagascar (../geos/ma.html)

Christian, indigenous believer, Muslim note: population largely practices Christianity or an indigenous religion; small share of population is Muslim

Malawi (../geos/mi.html) Christian 82.6%, Muslim 13%, other 1.9%, none 2.5% (2008 est.)

https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html

2/16/2017

The World Factbook — Central Intelligence Agency Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 65 of 88 PageID #: 2214

Malaysia (../geos/my.html)

Muslim (official) 61.3%, Buddhist 19.8%, Christian 9.2%, Hindu 6.3%, Confucianism, Taoism, other traditional Chinese religions 1.3%, other 0.4%, none 0.8%, unspecified 1% (2010 est.)

Maldives (../geos/mv.html) Mali (../geos/ml.html)

Sunni Muslim (official)
Muslim 94.8%, Christian 2.4%, Animist 2%, none 0.5%, unspecified 0.3% (2009 est.)

Malta (../geos/mt.html) Roman Catholic (official) more than 90% (2011 est.)

Marshall Islands (../geos/rm.html)

Protestant 54.8%, Assembly of God 25.8%, Roman Catholic 8.4%, Bukot nan Jesus 2.8%, Mormon 2.1%, other Christian 3.6%, other 1%, none 1.5% (1999 census)

Mauritania (../geos/mr.html) Mauritius (../geos/mp.html)

Muslim (official) 100%
Hindu 48.5%, Roman Catholic 26.3%, Muslim 17.3%, other Christian 6.4%, other 0.6%, none 0.7%, unspecified 0.1% (2011 est.)

Mexico (../geos/mx.html) Roman Catholic 82.7%, Pentecostal 1.6%, Jehovah's Witness 1.4%, other Evangelical Churches 5%, other 1.9%, none 4.7%, unspecified 2.7% (2010 est.)

Micronesia, Federated States of (../geos/fm.html)

Roman Catholic 54.7%, Protestant 41.1% (includes Congregational 38.5%, Baptist 1.1%, Seventh Day Adventist 0.8%, Assembly of God 0.7%), Mormon 1.5%, other 1.9%, none 0.7%, unspecified 0.1% (2010 est.)

Moldova (../geos/md.html)

Orthodox 93.3%, Baptist 1%, other Christian 1.2%, other 0.9%, atheist 0.4%, none 1%, unspecified 2.2% (2004 est.)

Monaco (../geos/mn.html) Mongolia (../geos/mg.html)

Roman Catholic 90% (official), other 10%
Buddhist 53%, Muslim 3%, Christian 2.2%, Shamanist 2.9%, other 0.4%, none 38.6% (2010 est.)

Montenegro (../geos/mj.html)

Orthodox 72.1%, Muslim 19.1%, Catholic 3.4%, atheist 1.2%, other 1.5%, unspecified 2.6% (2011 est.)

Montserrat (../geos/mh.html)

Protestant 67.1% (includes Anglican 21.8%, Methodist 17%, Pentecostal 14.1%, Seventh Day Adventist 10.5%, and Church of God 3.7%), Roman Catholic 11.6%, Rastafarian 1.4%, other 6.5%, none 2.6%, unspecified 10.8% (2001 est.)

Morocco (../geos/mo.html)

Muslim 99% (official; virtually all Sunni, <0.1% Shia), other 1% (includes Christian, Jewish, and Baha'i); note - Jewish about 6,000 (2010 est.)

Mozambique (../geos/mz.html)

Roman Catholic 28.4%, Muslim 17.9%, Zionist Christian 15.5%, Protestant 12.2% (includes Pentecostal 10.9% and Anglican 1.3%), other 6.7%, none 18.7%, unspecified 0.7% (2007 est.)

Namibia (../geos/wa.html) Nauru (../geos/nr.html)

Christian 80% to 90% (at least 50% Lutheran), indigenous beliefs 10% to 20%
Protestant 60.4% (includes Nauru Congregational 35.7%, Assembly of God 13%, Nauru Independent Church 9.5%, Baptist 1.5%, and Seventh Day Adventist 0.7%), Roman Catholic 33%, other 3.7%, none 1.8%, unspecified 1.1% (2011 est.)

Nepal (../geos/np.html) Hindu 81.3%, Buddhist 9%, Muslim 4.4%, Kirant 3.1%, Christian 1.4%, other 0.5%, unspecifed 0.2% (2011 est.)

Netherlands (../geos/nl.html)

Roman Catholic 28%, Protestant 19% (includes Dutch Reformed 9%, Protestant Church of The Netherlands, 7%, Calvinist 3%), other 11% (includes about 5% Muslim and fewer numbers of Hindu, Buddhist, Jehovah's Witness, and Orthodox), none 42% (2009 est.)

https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html

2/16/2017

The World Factbook — Central Intelligence Agency Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 66 of 88 PageID #: 2215

New Caledonia (../geos/nc.html) New Zealand (../geos/nz.html)

Roman Catholic 60%, Protestant 30%, other 10%
Christian 44.3% (Catholic 11.6%, Anglican 10.8%, Presbyterian and Congregational 7.8%, Methodist, 2.4%, Pentecostal 1.8%, other 9.9%), Hindu 2.1%, Buddhist 1.4%, Maori Christian 1.3%, Islam 1.1%, other religion 1.4% (includes Judaism, Spiritualism and New Age religions, Baha'i, Asian religions other than Buddhism), no religion 38.5%, not stated or unidentified 8.2%, objected to answering 4.1% note: based on the 2013 census of the usually resident population; percentages add up to more than 100% because people were able to identify more than one religion (2013 est.)

Nicaragua (../geos/nu.html)

Roman Catholic 58.5%, Protestant 23.2% (Evangelical 21.6%, Moravian 1.6%), Jehovah's Witnesses 0.9%, other 1.6%, none 15.7% (2005 est.)

Nigeria (../geos/ni.html) Muslim 50%, Christian 40%, indigenous beliefs 10%

Niger (../geos/ng.html) Muslim 80%, other (includes indigenous beliefs and Christian) 20%

Niue (../geos/ne.html)

Ekalesia Niue (Congregational Christian Church of Niue - a Protestant church founded by missionaries from the London Missionary Society) 67%, other Protestant 3% (includes Seventh Day Adventist 1%, Presbyterian 1%, and Methodist 1%), Mormon 10%, Roman Catholic 10%, Jehovah's Witnesses 2%, other 6%, none 2% (2011 est.)

Norfolk Island (../geos/nf.html)

Protestant 49.6% (Anglican 31.8%, Uniting Church in Australia 10.6%, Seventh Day Adventist 3.2%), Roman Catholic 11.7%, other 8.6%, none 23.5%, unspecified 6.6% (2011 est.)

Northern Mariana Islands Christian (Roman Catholic majority, although traditional beliefs and taboos may

(../geos/cq.html)

still be found)

Norway (../geos/no.html) Church of Norway (Evangelical Lutheran - official) 82.1%, other Christian 3.9%, Muslim 2.3%, Roman Catholic 1.8%, other 2.4%, unspecified 7.5% (2011 est.)

Oman (../geos/mu.html)

Muslim (official; majority are Ibadhi, lesser numbers of Sunni and Shia) 85.9%, Christian 6.5%, Hindu 5.5%, Buddhist 0.8%, Jewish <0.1%, other 1%, unaffiliated 0.2% (2010 est.) note: approximately 75% of Omani citizens, who compose almost 70% of the country's total population, are Ibadhi Muslims; the Omani government does not keep statistics on religious affiliation (2013)

Pakistan (../geos/pk.html)

Muslim (official) 96.4% (Sunni 85-90%, Shia 10-15%), other (includes Christian and Hindu) 3.6% (2010 est.)

Palau (../geos/ps.html)

Roman Catholic 49.4%, Protestant 30.9% (includes Protestant (general) 23.1%, Seventh Day Adventist 5.3%, and other Protestant 2.5%), Modekngei 8.7% (indigenous to Palau), Jehovah's Witnesses 1.1%, other 8.8%, none or unspecified 1.1% (2005 est.)

Panama (../geos/pm.html) Papua New Guinea (../geos/pp.html)

Roman Catholic 85%, Protestant 15%
Roman Catholic 27%, Protestant 69.4% (Evangelical Lutheran 19.5%, United Church 11.5%, Seventh-Day Adventist 10%, Pentecostal 8.6%, Evangelical Alliance 5.2%, Anglican 3.2%, Baptist 2.5%, other Protestant 8.9%), Baha'i 0.3%, indigenous beliefs and other 3.3% (2000 census)

Paraguay (../geos/pa.html)

Roman Catholic 89.6%, Protestant 6.2%, other Christian 1.1%, other or unspecified 1.9%, none 1.1% (2002 census)

Peru (../geos/pe.html) Roman Catholic 81.3%, Evangelical 12.5%, other 3.3%, none 2.9% (2007 est.)

https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html

2/16/2017

The World Factbook — Central Intelligence Agency Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 67 of 88 PageID #: 2216

Philippines (../geos/rp.html)

Catholic 82.9% (Roman Catholic 80.9%, Aglipayan 2%), Muslim 5%, Evangelical 2.8%, Iglesia ni Kristo 2.3%, other Christian 4.5%, other 1.8%, unspecified 0.6%, none 0.1% (2000 census)

Pitcairn Islands (../geos/pc.html) Poland (../geos/pl.html)

Seventh-Day Adventist 100%
Catholic 87.2% (includes Roman Catholic 86.9% and Greek Catholic, Armenian Catholic, and Byzantine-Slavic Catholic .3%), Orthodox 1.3% (almost all are Polish Autocephalous Orthodox), Protestant 0.4% (mainly Augsburg Evangelical and Pentacostal), other 0.4% (includes Jehovah's Witness, Buddhist, Hare Krishna, Gaudiya Vaishnavism, Muslim, Jewish, Mormon), unspecified 10.8% (2012 est.)

Portugal (../geos/po.html)

Roman Catholic 81%, other Christian 3.3%, other (includes Jewish, Muslim, other) 0.6%, none 6.8%, unspecified 8.3% note: represents population 15 years of age and older (2011 est.)

Puerto Rico (../geos/rq.html) Qatar (../geos/qa.html)

Roman Catholic 85%, Protestant and other 15%
Muslim 77.5%, Christian 8.5%, other (includes mainly Hindu and other Indian religions) 14% (2004 est.)

Romania (../geos/ro.html)

Eastern Orthodox (including all sub-denominations) 81.9%, Protestant (various denominations including Reformed and Pentecostal) 6.4%, Roman Catholic 4.3%, other (includes Muslim) 0.9%, none or atheist 0.2%, unspecified 6.3% (2011 est.)

Russia (../geos/rs.html)

Russian Orthodox 15-20%, Muslim 10-15%, other Christian 2% (2006 est.) note: estimates are of practicing worshipers; Russia has large populations of non-practicing believers and non-believers, a legacy of over seven decades of Soviet rule; Russia officially recognizes Orthodox Christianity, Islam, Judaism, and Buddhism as traditional religions

Rwanda (../geos/rw.html)Roman Catholic 49.5%, Protestant 39.4% (includes Adventist 12.2% and other Protestant 27.2%), other Christian 4.5%, Muslim 1.8%, animist 0.1%, other 0.6%, none 3.6% (2001), unspecified 0.5% (2002 est.)

Saint Barthelemy (../geos/tb.html) Saint Helena, Ascension, and Tristan da Cunha (../geos/sh.html)

Roman Catholic, Protestant, Jehovah's Witnesses
Protestant 75.9% (includes Anglican 68.9, Baptist 2.1%, Seventh Day Adventist 1.8%, Salvation Army 1.7%, New Apostolic 1.4%), Jehovah's Witness 4.1%, Roman Catholic 1.2%, other 2.5% (includes Baha'i), unspecified 0.8%, none 6.1%, no response 9.4% note: data represent Saint Helena only (2016 est.)

Saint Kitts and Nevis (../geos/sc.html) Saint Lucia (../geos/st.html)

Anglican, other Protestant, Roman Catholic
Roman Catholic 61.5%, Protestant 25.5% (includes Seventh Day Adventist 10.4%, Pentecostal 8.9%, Baptist 2.2%, Anglican 1.6%, Church of God 1.5%, other Protestant 0.9%), other Christian 3.4% (includes Evangelical 2.3% and Jehovah's Witness 1.1%), Rastafarian 1.9%, other 0.4%, none 5.9%, unspecified 1.4% (2010 est.)

Saint Martin (../geos/rn.html)

Roman Catholic, Jehovah's Witnesses, Protestant, Hindu

Saint Pierre and Miquelon Roman Catholic 99%, other 1% (../geos/sb.html)

Saint Vincent and the Grenadines (../geos/vc.html)

Protestant 75% (Anglican 47%, Methodist 28%), Roman Catholic 13%, other (includes Hindu, Seventh-Day Adventist, other Protestant) 12%

https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html

2/16/2017

The World Factbook — Central Intelligence Agency Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 68 of 88 PageID #: 2217

Samoa (../geos/ws.html) Protestant 57.4% (Congregationalist 31.8%, Methodist 13.7%, Assembly of God 8%, Seventh-Day Adventist 3.9%), Roman Catholic 19.4%, Mormon 15.2%, Worship Centre 1.7%, other Christian 5.5%, other 0.7%, none 0.1%, unspecified 0.1% (2011 est.)

San Marino (../geos/sm.html) Sao Tome and Principe (../geos/tp.html)

Roman Catholic
Catholic 55.7%, Adventist 4.1%, Assembly of God 3.4%, New Apostolic 2.9%, Mana 2.3%, Universal Kingdom of God 2%, Jehovah's Witness 1.2%, other 6.2%, none 21.2%, unspecified 1% (2012 est.)

Saudi Arabia (../geos/sa.html)

Muslim (official; citizens are 85-90% Sunni and 10-15% Shia), other (includes Eastern Orthodox, Protestant, Roman Catholic, Jewish, Hindu, Buddhist, and Sikh) (2012 est.) note: despite having a large expatriate community of various faiths (more than 30% of the population), most forms of public religious expression inconsistent with the government-sanctioned interpretation of Sunni Islam are restricted; nonMuslims are not allowed to have Saudi citizenship and non-Muslim places of worship are not permitted (2013)

Senegal (../geos/sg.html) Muslim 95.4% (most adhere to one of the four main Sufi brotherhoods), Christian 4.2% (mostly Roman Catholic), animist 0.4% (2010-11 est.)

Serbia (../geos/ri.html)

Serbian Orthodox 84.6%, Catholic 5%, Muslim 3.1%, Protestant 1%, atheist 1.1%, other 0.8%, undeclared or unknown 4.5% (2011 est.)

Seychelles (../geos/se.html)

Roman Catholic 76.2%, Protestant 10.6% (Anglican 6.1%, Pentecoastal Assembly 1.5%, Seventh-Day Adventist 1.2%, other Protestant 1.6), other Christian 2.4%, Hindu 2.4%, Muslim 1.6%, other non-Christian 1.1%, unspecified 4.8%, none 0.9% (2010 est.)

Sierra Leone (../geos/sl.html) Singapore (../geos/sn.html)

Muslim 60%, Christian 10%, indigenous beliefs 30%
Buddhist 33.9%, Muslim 14.3%, Taoist 11.3%, Catholic 7.1%, Hindu 5.2%, other Christian 11%, other 0.7%, none 16.4% (2010 est.)

Sint Maarten (../geos/sk.html)

Protestant 41.9% (Pentecostal 14.7%, Methodist 10.0%, Seventh Day Adventist 6.6%, Baptist 4.7%, Anglican 3.1%, other Protestant 2.8%), Roman Catholic 33.1%, Hindu 5.2%, Christian 4.1%, Jehovah's Witness 1.7%, Evangelical 1.4%, Muslim/Jewish 1.1%, other 1.3% (includes Buddhist, Sikh, Rastafarian), none 7.9%, no response 2.4% (2011 est.)

Slovakia (../geos/lo.html)Roman Catholic 62%, Protestant 8.2%, Greek Catholic 3.8%, other or unspecified 12.5%, none 13.4% (2011 est.)

Slovenia (../geos/si.html) Catholic 57.8%, Muslim 2.4%, Orthodox 2.3%, other Christian 0.9%, unaffiliated 3.5%, other or unspecified 23%, none 10.1% (2002 census)

Solomon Islands (../geos/bp.html)

Protestant 73.4% (Church of Melanesia 31.9%, South Sea Evangelical 17.1%, Seventh Day Adventist 11.7%, United Church 10.1%, Christian Fellowship Church 2.5%), Roman Catholic 19.6%, other Christian 2.9%, other 4%, none 0.03%, unspecified 0.1% (2009 est.)

Somalia (../geos/so.html) Sunni Muslim (Islam) (official, according to the Transitional Federal Charter)

South Africa (../geos/sf.html)

Protestant 36.6% (Zionist Christian 11.1%, Pentecostal/Charismatic 8.2%, Methodist 6.8%, Dutch Reformed 6.7%, Anglican 3.8%), Catholic 7.1%, Muslim 1.5%, other Christian 36%, other 2.3%, unspecified 1.4%, none 15.1% (2001 census)

South Sudan (../geos/od.html) Spain (../geos/sp.html)

animist, Christian Roman Catholic 94%, other 6%

https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html

2/16/2017

The World Factbook — Central Intelligence Agency Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 69 of 88 PageID #: 2218

Sri Lanka (../geos/ce.html)

Buddhist (official) 70.2%, Hindu 12.6%, Muslim 9.7%, Roman Catholic 6.1%, other Christian 1.3%, other 0.05% (2012 est.)

Sudan (../geos/su.html) Sunni Muslim, small Christian minority

Suriname (../geos/ns.html)

Hindu 27.4%, Protestant 25.2% (predominantly Moravian), Roman Catholic 22.8%, Muslim 19.6%, indigenous beliefs 5%

Swaziland (../geos/wz.html)

Zionist 40% (a blend of Christianity and indigenous ancestral worship), Roman Catholic 20%, Muslim 10%, other 30% (includes Anglican, Baha'i, Methodist, Mormon, Jewish)

Sweden (../geos/sw.html)

Lutheran 87%, other (includes Roman Catholic, Orthodox, Baptist, Muslim, Jewish, and Buddhist) 13%

Switzerland (../geos/sz.html)

Roman Catholic 38.2%, Protestant 26.9%, other Christian 5.6%, Muslim 5%, other 1.6%, none 21.4%, unspecified 1.3% (2013 est.)

Syria (../geos/sy.html)

Muslim 87% (official; includes Sunni 74% and Alawi, Ismaili, and Shia 13%), Christian 10% (includes Orthodox, Uniate, and Nestorian), Druze 3%, Jewish (few remaining in Damascus and Aleppo)

Taiwan (../geos/tw.html) mixture of Buddhist and Taoist 93%, Christian 4.5%, other 2.5%

Tajikistan (../geos/ti.html) Tanzania (../geos/tz.html)

Sunni Muslim 85%, Shia Muslim 5%, other 10% (2003 est.)
Christian 61.4%, Muslim 35.2%, folk religion 1.8%, other 0.2%, unaffiliated 1.4% note: Zanzibar is almost entirely Muslim (2010 est.)

Thailand (../geos/th.html)

Buddhist (official) 93.6%, Muslim 4.9%, Christian 1.2%, other 0.2%, none 0.1% (2010 est.)

Timor-Leste (../geos/tt.html)

Roman Catholic 96.9%, Protestant/Evangelical 2.2%, Muslim 0.3%, other 0.6% (2005)

Togo (../geos/to.html) Christian 29%, Muslim 20%, indigenous beliefs 51%

Tokelau (../geos/tl.html) Congregational Christian Church 58.2%, Roman Catholic 36.6%, Presbyterian 1.8%, other Christian 2.8%, Spiritualism and New Age 0.1%, unspecified 0.5% (2011 est.)

Tonga (../geos/tn.html)

Protestant 64.9% (includes Free Wesleyan Church 37.3%, Free Church of Tonga 11.4%, Church of Tonga 7.2%, Tokaikolo Christian Church 2.6%, Assembly of God 2.3%, Seventh Day Adventist 2.2%, Constitutional Church of Tonga 0.9%, Anglican 0.8% and Full Gospel Church 0.2%), Mormon 16.8%, Roman Catholic 15.6%, other 1.1%, none 0.03%, unspecified 1.7% (2006 est.)

Trinidad and Tobago (../geos/td.html)

Protestant 32.1% (Pentecostal/Evangelical/Full Gospel 12%, Baptist 6.9%, Anglican 5.7%, Seventh-Day Adventist 4.1%, Presbyterian/Congretational 2.5%, other Protestant 0.9%), Roman Catholic 21.6%, Hindu 18.2%, Muslim 5%, Jehovah's Witness 1.5%, other 8.4%, none 2.2%, unspecified 11.1% (2011 est.)

Tunisia (../geos/ts.html) Muslim (official; Sunni) 99.1%, other (includes Christian, Jewish, Shia Muslim, and Baha'i) 1%

Turkey (../geos/tu.html) Muslim 99.8% (mostly Sunni), other 0.2% (mostly Christians and Jews)

Turkmenistan (../geos/tx.html) Turks and Caicos Islands (../geos/tk.html)

Muslim 89%, Eastern Orthodox 9%, unknown 2%
Protestant 72.8% (Baptist 35.8%, Church of God 11.7%, Anglican 10%, Methodist 9.3%, Seventh-Day Adventist 6%), Roman Catholic 11.4%, Jehovah's Witnesses 1.8%, other 14%

Tuvalu (../geos/tv.html) Protestant 98.4% (Church of Tuvalu (Congregationalist) 97%, Seventh-Day Adventist 1.4%), Baha'i 1%, other 0.6%

https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html

2/16/2017

The World Factbook — Central Intelligence Agency Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 70 of 88 PageID #: 2219

Uganda (../geos/ug.html) Protestant 45.1% (Anglican 32.0%, Pentecostal/Born Again/Evangelical 11.1%, Seventh Day Adventist 1.7%, Baptist .3%), Roman Catholic 39.3%, Muslim 13.7%, other 1.6%, none 0.2% (2014 est.)

Ukraine (../geos/up.html) Orthodox (includes Ukrainian Autocephalous Orthodox (UAOC), Ukrainian Orthodox - Kyiv Patriarchate (UOC-KP), Ukrainian Orthodox - Moscow Patriarchate (UOC-MP), Ukrainian Greek Catholic, Roman Catholic, Protestant, Muslim, Jewish note: Ukraine's population is overwhelmingly Christian; the vast majority - up to two-thirds - identify themselves as Orthodox, but many do not specify a particular branch; the UOC-KP and the UOC-MP each represent less than a quarter of the country's population, the Ukrainian Greek Catholic Church accounts for 8-10%, and the UAOC accounts for 1-2%; Muslim and Jewish adherents each compose less than 1% of the total population (2013 est.)

United Arab Emirates (../geos/ae.html)

Muslim (official) 76%, Christian 9%, other (primarily Hindu and Buddhist, less than 5% of the population consists of Parsi, Baha'i, Druze, Sikh, Ahmadi, Ismaili, Dawoodi Bohra Muslim, and Jewish) 15% note: represents the total population; about 85% of the population consists of noncitizens (2005 est.)

United Kingdom (../geos/uk.html)

Christian (includes Anglican, Roman Catholic, Presbyterian, Methodist) 59.5%, Muslim 4.4%, Hindu 1.3%, other 2%, unspecified 7.2%, none 25.7% (2011 est.)

United States (../geos/us.html)

Protestant 46.5%, Roman Catholic 20.8%, Mormon 1.6%, Jehovah's Witness 0.8%, other Christian 0.9%, Jewish 1.9%, Muslim 0.9%, Buddhist 0.7%, Hindu 0.7%, other 1.8%, unaffiliated 22.8%, don't know/refused 0.6% (2014 est.)

Uruguay (../geos/uy.html)

Roman Catholic 47.1%, non-Catholic Christians 11.1%, nondenominational 23.2%, Jewish 0.3%, atheist or agnostic 17.2%, other 1.1% (2006)

Uzbekistan (../geos/uz.html) Vanuatu (../geos/nh.html)

Muslim 88% (mostly Sunni), Eastern Orthodox 9%, other 3%
Protestant 70% (includes Presbyterian 27.9%, Anglican 15.1%, Seventh Day Adventist 12.5%, Assemblies of God 4.7%, Church of Christ 4.5%, Neil Thomas Ministry 3.1%, and Apostolic 2.2%), Roman Catholic 12.4%, customary beliefs 3.7% (including Jon Frum cargo cult), other 12.6%, none 1.1%, unspecified 0.2% (2009 est.)

Venezuela (../geos/ve.html) Vietnam (../geos/vm.html)

nominally Roman Catholic 96%, Protestant 2%, other 2%
Buddhist 7.9%, Catholic 6.6%, Hoa Hao 1.7%, Cao Dai 0.9%, Protestant 0.9%, Muslim 0.1%, none 81.8% (2009 est.)

Virgin Islands (../geos/vq.html)

Protestant 59% (Baptist 42%, Episcopalian 17%), Roman Catholic 34%, other 7%

Wallis and Futuna (../geos/wf.html) West Bank (../geos/we.html)

Roman Catholic 99%, other 1%
Muslim 80-85% (predominantly Sunni), Jewish 12-14%, Christian 1-2.5% (mainly Greek Orthodox), other, unaffiliated, unspecified <1% note: the proportion of Christians continues to fall mainly as a result of the growth of the Muslim population but also because of migration and the declining birth rate of the Christian population (2012 est.)

Western Sahara (../geos/wi.html) World (../geos/xx.html)

Muslim
Christian 31.4%, Muslim 23.2%, Hindu 15%, Buddhist 7.1%, folk religions 5.9%, Jewish 0.2%, other 0.8%, unaffiliated 16.4% (2010 est.)

https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html

2/16/2017

The World Factbook — Central Intelligence Agency Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 71 of 88 PageID #: 2220

Yemen (../geos/ym.html) Muslim 99.1% (official; virtually all are citizens, an estimated 65% are Sunni and 35% are Shia), other 0.9% (includes Jewish, Baha'i, Hindu, and Christian; many are refugees or temporary foreign residents) (2010 est.)

Zambia (../geos/za.html) Protestant 75.3%, Roman Catholic 20.2%, other 2.7% (includes Muslim Buddhist, Hindu, and Baha'i), none 1.8% (2010 est.)

Zimbabwe (../geos/zi.html)

Protestant 75.9% (includes Apostolic 38%, Pentecostal 21.1%, other 16.8%), Roman Catholic 8.4%, other Christian 8.4%, other 1.2% (includes traditional, Muslim), none 6.1% (2011 est.)

Privacy (/about-cia/site-policies/#privacy-notice) Site Policies (/about-cia/site-policies/) FOIA (http://www.foia.cia.gov/) NoFEAR Act (/about-cia/no-fear-act/)
Contact CIA (/contact-cia/)

Copyright (/about-cia/site-policies/#copy) USA.gov (http://www.usa.gov/) DNI.gov (http://www.dni.gov/) Inspector General (/offices-of-cia/inspectorgeneral/) Site Map (/sitemap.html)

(/open/)

https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html

2/16/2017

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 72 of 88 PageID #: 2221
EXHIBIT

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 73 of 88 PageID #: 2222

Brody File Exclusive: President Trump Says Persecuted Christians Will Be Given Prior... Page 10 of 16 Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 74 of 88 PageID #: 2223

The Brody File conducted the interview Friday morning in the Blue Room at The White House. More newsworthy clips are coming soon. The entire interview can be seen this Sunday at 11pm on Freeform (cable TV, formerly ABC Family Channel) during our special CBN News show. This is just the third interview President Trump has done from The White House and it will be the only interview that will air in its’ entirety this weekend.
MANDATORY VIDEO AND COURTESY: CBN NEWS/THE BRODY FILE
DAVID BRODY: “Persecuted Christians, we’ve talked about this, the refugees overseas. The refugee program, or the refugee changes you’re looking to make. As it relates to persecuted Christians, do you see them as kind of a priority here?”
PRESIDENT TRUMP: “Yes.”
DAVID BRODY: “You do?”
PRESIDENT TRUMP: “They’ve been horribly treated. Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.”

While you are here...
We'd like to ask for your help. At CBN News, we strive to bring you the most current, pertinent and reliable news possible. We are able to bring you this important news from a Christian perspective because of the help of friends like you who know how vital it is to have an alternative to the news you hear from major media outlets. Would you help ensure that we can continue to provide this important service to you and our country by considering a special gift today? Or would you become a monthly partner so we know we can count on the resources we need to bring you the best news possible?
Thanks for being a part of the dynamic future of CBN News, as well as helping The Christian Broadcasting Network share the love of Jesus with hurting people everywhere.
Become a Partner Give a special gift

Share

Tweet

Email

+126

JOIN THE CONVERSATION

Login Write a comment

126 Comments

Subscribe RSS

Steve

12 days ago

Christian persecution is running at about 100,000 deaths per month. I'm so glad that our President is cognizant of this and willing to alleviate some of the pain and suffering of these people.

Like Reply Share

0

Israel Friend Di

13 days ago

Our President Donald Trump is doing his Christian duty by banning terrorists Muslims and illegals into the USA that want to promote Sharia laws upon us and terrorize this country. Isis and Hamas chop off the heads of their own people if they are found to be worshipping the GOD OF ISRAEL, our GOD, KING JESUS. This has to be stopped before they completely destroy the entire USA and all Christians and Jews, including ISRAEL. The Muslim religion is a hate religion unlike our Judea, Christianity. We love all people of every race and don't kill to please our GOD. Our GOD died, shed HIS innocent blood as the final Lamb of GOD sacrifice and was resurrected to save us from our sins.

Like Reply Share

0

http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusive-president-trum... 2/12/2017

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 75 of 88 PageID #: 2224
EXHIBIT

Trump signs order limiting refugee entry, says he will prioritize Christian refugees - The ... Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 76 of 88 PageID #: 2225
Acts of Faith
Trump signs order limiting refugee entry, says he will prioritize Christian refugees
By Sarah Pulliam Bailey January 27
President Trump signed an executive order Friday instituting “extreme vetting” of refugees, aimed at keeping out “radical Islamic terrorists.”
“I’m establishing a new vetting measure to keep radical Islamic terrorists out of the United States of America,” Trump said during his signing of the order. “We don’t want them here. We want to make sure we are not admitting into our country the very threats our soldiers are fighting overseas.”
According to drafts of the executive action, the order bars people from the Muslim-majority countries of Iraq, Syria, Iran, Sudan, Libya, Somalia or Yemen from entering the United States for 30 days and suspends the U.S. Refugee Admissions Program for 120 days. The program will be reinstated “only for nationals of countries for whom” members are vetted by Trump’s administration.
In an interview Friday with the Christian Broadcast Network, Trump said he plans to help persecuted Christians.
“Do you know if you were a Christian in Syria it was impossible, at least very tough, to get into the United States?” Trump said. “If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair.”
https://www.washingtonpost.com/news/acts-of-faith/wp/2017/01/27/we-dont-want-them-th... 1/30/2017

Trump signs order limiting refugee entry, says he will prioritize Christian refugees - The ... Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 77 of 88 PageID #: 2226

In a statement, the American Civil Liberties Union declared Trump’s action “just a euphemism for discrimination against Muslims.”
From both legal and historical perspectives, the plan to ban refugees from specific countries is within the powers granted to the president under current law and historical precedent, according to Charles Haynes, vice president of the Newseum Institute’s Religious Freedom Center. However, whether the president can limit the ban to one religious group is another question.
Many Muslims, especially Shiites, are among the religious minorities under attack, Haynes said. This “raises moral and humanitarian concerns about excluding them from entrance to the U.S. while permitting people of other faiths,” he said. “Whether this policy rises to the level of a constitutional violation is uncertain and will be debated by constitutional scholars in the coming weeks.”
Issues related to the Constitution and religion are usually associated with matters of sex, such as contraceptives and LGBT discrimination, but some observers said they expect Trump’s actions on immigration to raise new challenges for religious freedom, according to Chelsea Langston Bombino of the Institutional Religious Freedom Alliance at the Center for Public Justice. Several organizations, she noted, are speaking out against orders that “will hurt the very people that their organizations were established, out of a religious calling, to serve,” she said.
Trump’s actions have been decried by several religious groups this week. “The expected cutbacks to U.S. refugee programs and funding will compromise our ability to do this work and the infrastructure needed to serve refugees in the years to come,” evangelical ministry World Relief said in a statement.

Acts of Faith newsletter Conversations about faith and values.

Sign up

And in a strongly worded statement, Rabbi Jack Moline, the Interfaith Alliance president, noted that this decision was announced on International Holocaust Remembrance Day.

“For decades, the United States has prided itself as a safe bastion for refugees around the globe escaping war and persecution,” he said. “President Trump is poised to trample upon that great legacy with a de facto Muslim ban.”

The Council on American-Islamic Relations will on Monday announce a federal lawsuit on behalf of more than 20 people challenging the constitutionality of the executive order.

https://www.washingtonpost.com/news/acts-of-faith/wp/2017/01/27/we-dont-want-them-th... 1/30/2017

Trump signs order limiting refugee entry, says he will prioritize Christian refugees - The ... Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 78 of 88 PageID #: 2227
“There is no evidence that refugees – the most thoroughly vetted of all people entering our nation – are a threat to national security,” said CAIR national litigation director Lena F. Masri. “This is an order that is based on bigotry, not reality.”
This post has been updated.

Sarah Pulliam Bailey is a religion reporter, covering how faith intersects with politics, culture and...everything. ¬ Follow @spulliam

The Post Recommends
An ‘America first’ philosophy? During May’s visit, it’s more like ‘Trump first.’
The new president’s view of the world seems to revolve around him and his personal relationships.
Facing criticism, Trump administration has no regrets about leaving out Jews in Holocaust statement
What might have been seen as an oversight was confirmed by White House spokeswoman Hope Hicks to have been an intentional decision.
Trump orders Pentagon to draft ISIS strategy, restructuring of security council
New rules concerning lobbying are also among executive orders signed Saturday.
PAID PROMOTED STORIES

Recommended by

https://www.washingtonpost.com/news/acts-of-faith/wp/2017/01/27/we-dont-want-them-th... 1/30/2017

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 79 of 88 PageID #: 2228
EXHIBIT

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 80 of 88 PageID #: 2229

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 81 of 88 PageID #: 2230
EXHIBIT

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 82 of 88 PageID #: 2231

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 83 of 88 PageID #: 2232
EXHIBIT

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 84 of 88 PageID #: 2233

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 85 of 88 PageID #: 2234

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 86 of 88 PageID #: 2235

Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 87 of 88 PageID #: 2236
EXHIBIT

nbcnews.com Case 1:17-cv-00480-CBA Document 159-1 Filed 02/16/17 Page 88 of 88 PageID #: 2237

MEET THE PRESS JUL 24 2016, 11:47 AM ET
Meet the Press - July 24, 2016
Meet the Press - July 24, 2016 CHUCK TODD: This Sunday, the Democratic National Convention gets underway here in Philadelphia, after a raucous and unpredictable Republican convention. That ended with the nomination of Donald Trump. DONALD TRUMP: I am with you, I will fight for you, and I will win for you. CHUCK TODD: This morning, my sit-down with Donald Trump on his convention speech. DONALD TRUMP: The only negative reviews were a little dark. CHUCK TODD: On whether he's backing off on his Muslim band. DONALD TRUMP: I actually don't think it's a pull-back. In fact, you could say it's an expansion. CHUCK TODD: And on Hillary Clinton's choice of Tim Kaine. DONALD TRUMP: Tim Kaine was a slap in the face to Bernie Sanders. CHUCK TODD: Plus Hillary Clinton and Tim Kaine hit the road in Florida. HILLARY CLINTON: Tim Kaine is everything Donald Trump and Mike Pence are not. CHUCK TODD: But some Bernie Sanders supporters are criticizing the Kaine pick as a sellout to moderates. I'll talk to Sanders and get his reaction to that and to the DNC Wikileaks e-mail release. Joining me for insight and analysis are MSNBC's Rachel Maddow, former chairman of the RNC, Michael Steele, NBC News Chief Foreign Affairs Correspondent, Andrea Mitchell, and host of Hardball and Philadelphia hometown boy, Chris Matthews. Trump, Sanders and reactions to the new Democratic ticket. Welcome to Sunday, in a special edition of Meet the Press at the Democratic National Convention. CHUCK TODD: Good Sunday morning. We are at the Wells Fargo Center here in South Philadelphia, home of the NBA 76ers and the NHL Broad Street Bullies, the Fliers. Democrats have begun to arrive, along with a pretty bad heat wave. And beginning tomorrow, they will gather to officially nominate Hillary Clinton as their presidential candidate.

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 1 of 88 PageID #: 2238
Yesterday in Miami, Clinton was joined by her new running mate, Senator Tim Kaine of Virginia, in an upbeat event that was notable simply by the contrast to the disorganized rollout of Donald Trump's running mate a week earlier, Mike Pence.
(BEGIN TAPE)
SEN. TIM KAINE:
Hillary Clinton, she doesn't insult people, she listens to them. What a novel concept, right She doesn't trash our allies, she respects them. And she'll always have our backs, that is something I am rock solid sure of.
(END TAPE)
CHUCK TODD:
We will get to reaction to the new Democratic ticket later in the show, including my interview with Senator Bernie Sanders of Vermont in a moment. But first, we're going to ta k also about Sanders, about those Wikileaks emails and what they may say about DNC favoritism towards Hillary Clinton. But we begin with the man who has now taken control of the Republican Party. It's nominee Donald Trump.
I traveled to Trump National Golf Club in Bedminster, New Jersey, sort of his weekend getaway, last night for a face-to-face interview since dropping the word presumptive, it's his first one, from the nominee title. We touched on so much: Tim Kaine, Trump's tax returns, his proposed restrictions on Muslim immigration and why he says he alone can fix the country's problems. But I began by asking him how it feels to be the Republican nominee for president of the United States.
(BEGIN TAPE)
DONALD TRUMP:
Well, it really feels great. And we really have a very unified party, other than a very small group of people that, frankly, lost. And we have a very unified party. You saw that the other night with the love in the room, and the enthusiasm in the room. The enthusiasm, there are people that say they have never seen anything like what was going on in that room, especially Thursday night.
CHUCK TODD:
Let me tell you, you bring up Thursday night, I've got to ask you about your entrance. Before we get serious here. That Monday night entrance was something else. I know you've gotten a lot of feedback on it. How'd you come up with it
DONALD TRUMP:
I think I'm a little bit lucky, and a couple of people had that idea and I went along with the idea. And everything just worked right. And it was so good that they wanted to do it on Thursday night. I said, Never in a million years, because you'll never get it that way again.
CHUCK TODD:
I don't think I've seen that even on WWE.
DONALD TRUMP:
Yeah, I know. Well, Vince is a good friend of mine. He called me, he said, That was a very, very good entrance. But I didn't want to do it a second time, because, you know, it never works out the second time.
CHUCK TODD:
All right, let's go into the speech. I want to put some meat on the bones. But first, let's talk about, you've seen some of the positive reviews, some of the negative reviews. Some of the negative has been that it was a little dark--
DONALD TRUMP:
That's the only thing that--

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 2 of 88 PageID #: 2239
CHUCK TODD: --that there wasn't enough optimism in it. What would you say It's not Morning in America. DONALD TRUMP: Yeah. CHUCK TODD: What would you say to that DONALD TRUMP: Well, I think the only negativity, and, you know, the hate, I call them the haters, and that's fine. But the only negative reviews were, A little dark. And the following day, they had another attack, and then today you see what happened in Afghanistan with many, many people killed. They have no idea how many, so many killed. Yesterday it was Munich. And you know, I know they're saying, Maybe it wasn't terrorism. Maybe it was just a crazy guy. But in the meantime he's screaming, Allahu Akbar, as he's shooting people, so, you know, we'll see how that turns out. And all of a sudden people are saying, Maybe it wasn't dark at all. But the only thing that some people said, It was a little dark. It was a little bit tough. CHUCK TODD: Do you think it was a little dark DONALD TRUMP: No, oh, I thought it was very optimistic. To me, it was an optimistic speech, because-CHUCK TODD: What makes it optimistic in your view DONALD TRUMP: Because we're going to stop the problems. We're going to stop the problems. In other words, sure, I talk about the problems, but we're going to solve the problems. CHUCK TODD: One of the phrases you used, I alone can fix it. And to some people, that sounded almost too strong-mannish for them. Do you understand that criticism and what do you make of it DONALD TRUMP: I'll tell you, part of it was I'm comparing myself to Hillary. And we know Hillary, and we look at her record. Her record has been a disaster. And I am running against Hillary. It's not like I'm running against the rest of the world. I know people that are very, very capable that could do a very good job, but they could never get elected. I can tell you right now. I can give you ten names of people that would do an extraordinary job, but there's no way they could ever get elected. They wouldn't know where to begin. It wouldn't be for them. But for governing, they would be good. I'm running and, you know, against one person. CHUCK TODD: You said there would be consequences for any company that tried to move a factory out. What-DONALD TRUMP:

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 3 of 88 PageID #: 2240
Absolutely, so simple-CHUCK TODD: --what is the consequence Let's start with, you bring up Carrier a lot. DONALD TRUMP: It's so simple-(OVERTALK) CHUCK TODD: Right, I understand that. But explain the consequences-DONALD TRUMP: Okay, here's the consequence-CHUCK TODD: What would it be DONALD TRUMP: So Carrier comes in, they announce they're moving to Mexico, they fire all their people in Indiana, and they say, Hi, well, here we are in Mexico, you know, enjoy your plant, enjoy the rest of your life, and you hire people from Mexico, okay Now they make their product and they put it into the United States. Well, we will have a very strong border, by the way, but they put it into the United States and we don't charge them tax. There will be a tax to be paid. If they're going to fire all their people, move their plant to Mexico, build air conditioners, and think they're going to sell those air conditioners to the United States, there's going to be a tax. CHUCK TODD: What kind of tax are you thinking DONALD TRUMP: It could be 25 percent. It could be 35 percent. It could be 15 percent. I haven't determined. And it could be different for different companies. We have been working on trying to stop this government, because we don't know what we're doing. And not only Obama, they've been trying to stop this from before Obama. But they don't know. You know, they've done, they've tried lower interest loans, they've tried zero interest loans, these guys-CHUCK TODD: Well, some of these things aren't going to get through the World Trade Organization. There's-DONALD TRUMP: It doesn't matter. Then we're going to renegotiate or we're going to pull out. These trade deals are a disaster, Chuck. World Trade Organization is a disaster. CHUCK TODD: You know the concern on some of this-DONALD TRUMP: NAFTA is a disaster--

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 4 of 88 PageID #: 2241
CHUCK TODD: -- is that it would rattle the world economy. Look what Brexit did to the world economy. Investors got rattled. DONALD TRUMP: What did it do What did it do CHUCK TODD: Now you-DONALD TRUMP: The stock market's higher now than it was when it happened. And by the way, I'm the only one of all of these people at the higher level of the wonderful world of politics, I'm the only one that said, Brexit's going to happen. Remember, I was asked the question. I said, Yeah, I think they're going to approve it. I think they want independence. I don't think they want people pouring into their country. And I was-CHUCK TODD: You're not worried about, you think a fractured Europe is good for America DONALD TRUMP: No, no. But we're spending a lot of money on Europe. Don't forget, Europe got together, why, primarily did they get together So that they could beat the United States when it comes to making money, in other words, foreign trade-CHUCK TODD: Economic-DONALD TRUMP: Okay And now we talk about Europe l ke it's so wonderful. Hey, I love Europe, I have property in Europe. I'm just saying, the reason that it got together was like a consortium so that it could compete with the United States-CHUCK TODD: So what you're saying is all this stuff is good for America, even if it's not good for Europe DONALD TRUMP: Look, you take a look at Airbus. They make more planes now than Boeing, okay They got together, all of these countries got together so that they could beat the United States. Okay, so we're in competition. So you know, we're in competition in one way, we're helping them in another way. It is so messed up. CHUCK TODD: The Muslim ban. I think you've pulled back from it, but you tell me. (BEGIN TAPE) DONALD TRUMP: We must immediately suspend immigration from any nation that has been compromised by terrorism until such time as proven vetting mechanisms have been put in place. (END TAPE) CHUCK TODD:

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 5 of 88 PageID #: 2242
This feels like a slight rollback-DONALD TRUMP: I don't think that's-CHUCK TODD: Should it be interpreted-DONALD TRUMP: I don't think so. I actually don't think it's a rollback. In fact, you could say it's an expansion. I'm looking now at territories. People were so upset when I used the word Muslim. Oh, you can't use the word Muslim. Remember this. And I'm okay with that, because I'm talking territory instead of Muslim. But just remember this: Our Constitution is great. But it doesn't necessarily give us the right to commit suicide, okay Now, we have a religious, you know, everybody wants to be protected. And that's great. And that's the wonderful part of our Constitution. I view it differently. Why are we committing suicide Why are we doing that But you know what I live with our Constitution. I love our Constitution. I cherish our Constitution. We're making it territorial. We have nations and we'll come out, I'm going to be coming out over the next few weeks with a number of the places. And it's very complex-CHUCK TODD: Well I was just going to say-DONALD TRUMP: --we have problems in Germany and we have problems with France-CHUCK TODD: I was just going to ask that. Will this limitt-DONALD TRUMP: You know, so it's not just the countries with-CHUCK TODD: --would this limit immigration from France DONALD TRUMP: What we're going to have is a thing called-CHUCK TODD: They've been compromised by terrorism. DONALD TRUMP: They have totally been. And you know why It's their own fault. Because they allowed people to come into their territory-CHUCK TODD: So you would toughen up. You're basically saying, Hey, if the French want to come over here, you've got to go through an extra check.

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 6 of 88 PageID #: 2243
DONALD TRUMP: It's their own fault, because they've allowed people over years to come into their territory. And that's why Brexit happened, okay Because the U.K. is saying, We're tired of this stuff, what's going on, we're tired of. But listen to this-CHUCK TODD: You could get to the point where you're not allowing a lot of people to come into this country from a lot of places. DONALD TRUMP: Maybe we get to that point. Chuck, look what's happening. Look at what just took place in Afghanistan, where they blow up a whole shopping center with people, they have no idea how many people were even killed. Happened today. So we have to be smart and we have to be vigilant and we have to be strong. We can't be the stupid people-CHUCK TODD: So France, Germany, Spain-DONALD TRUMP: Here's my plan-CHUCK TODD: --places that have been compromised DONALD TRUMP: --here is what I want: Extreme vetting. Tough word. Extreme vetting. CHUCK TODD: What does that look like DONALD TRUMP: Tough. We're going to have tough standards. And if a person can't prove-CHUCK TODD: Give me one. DONALD TRUMP: --that they're from an area, and if a person can't prove what they have to be able to prove, they're not coming into this country. And I would stop the Syrian migration and the Syrian from coming into this country in two seconds. Hillary Clinton wants to take 550 percent more people coming in from that area than Barack Obama. I think she's crazy. I think she's crazy. We have no idea who these people are for the most part, and you know, because I've seen them on different shows-CHUCK TODD: All right. DONALD TRUMP: --but more importantly, I've read about it. I study it. There is no way that you can vet some of these people. There is no way. Law enforcement officials, I've had them in my office. I've talked to them. CHUCK TODD:

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 7 of 88 PageID #: 2244
You realize some of these folks have nowhere to go They're truly victims of this civil war, what do you do with them DONALD TRUMP: We will help them and we will build safe havens over in Syria, and we will get Gulf States-CHUCK TODD: We, the United States are going to build these safe havens DONALD TRUMP: We, the United States, we'll get Gulf States to pay for it, because we right now, we're going to have 21 trillion very soon, trillion, in debt. We will do safe havens and safe zones in Syria and we will get nations that are so wealthy that are not doing anything. They're not doing much. They have nothing but money. And you know who I'm talking about, the Gulf States. And we will get them to pay for it. We would lead it. I don't want to pay because our country is going down the tubes. We owe too much money. CHUCK TODD: All right. Let me move to something with NATO. Mitch McConnell said this about your NATO remarks in the New York Times. He said it was a rookie mistake, and that once you, let me finish the comment here. It's a rookie mistake, and it proves that Trump needs people like us around to help steer him in the right direction on some basic things. DONALD TRUMP: He's 100 percent wrong. Okay He's 100 percent wrong if he said that. I didn't hear he said that-CHUCK TODD: He did say it. DONALD TRUMP: Okay, fine, fine-CHUCK TODD: New York Times-DONALD TRUMP: If he said that, he's 100 percent wrong. And frankly it's sad. We have NATO, and we have many countries that aren't paying for what they're supposed to be paying, which is already too little, but they're not paying anyway. And we're giving them a free ride or giving them a ride where they owe us tremendous amounts of money. And they have the money. But they're not paying it. You know why Because they think we're stupid-CHUCK TODD: So Estonia is paying, and if they get invaded by Russia, you're there DONALD TRUMP: I feel differently. I feel very differently-CHUCK TODD: But if a country's not doing -- Britain hasn't done the two percent. DONALD TRUMP:

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 8 of 88 PageID #: 2245
We have countries that aren't paying. Now, this goes beyond NATO, because we take care of-- we take care of Japan, we take care of Germany, we take care of South Korea, we take care of Saudi Arabia, and we lose on everything. We lose on everything. If Mitch McConnell says that, then he's wrong.
So all I'm saying is they have to pay. Now, a country gets invaded, they haven't paid, everyone says, Oh, but we have a treaty. Well, they have a treaty too. They're supposed to be paying. We have countries within NATO that are taking advantage of us. With me, I believe they're going to pay. And when they pay, I'm a big believer in NATO.
But if they don't pay, we don't have, you know, Chuck, this isn't 40 years ago. This isn't 50 years ago. It's not 30 years ago. We're a different country today. We're much weaker, our military is depleted, we owe tremendous amounts of money. We have to be reimbursed. We can no longer be the stupid country.
(END TAPE)
CHUCK TODD:
When we come back, what Donald Trump says about David Duke, Bernie Sanders, and whether he really plans to spend millions for the sole purpose of defeating Ted Cruz and John Kasich. Sanders about Trump and about his reaction to Tim Kaine becoming Hillary Clinton's running mate. We're in Philadelphia, site of the Democratic National Convention. Stay with us.
COMMERCIAL BREAK
CHUCK TODD:
Such a beautiful city here. Welcome back. More now of my interview with Donald Trump at The Trump National Golf Club in Bedminster, New Jersey. And since we had a limited amount of time, I ended up speeding things up by asking Trump for some quick reaction to simply some very prominent names in the news.
(BEGIN TAPE)
CHUCK TODD:
I'm just going to literally throw out a name and you'll know the question I'm asking. Bernie Sanders.
DONALD TRUMP:
Great respect for what he's done. He is being taken advantage of, and frankly, the system was rigged, and I'm the first one to say it was rigged against him. And by the way--
CHUCK TODD:
You took after him. You took after him. You said for supporting Hillary Clinton, you think he needs to--
DONALD TRUMP:
Well, I'm not a fan of Bernie Sanders. But I am a fan of one thing that he talks about: Trade. He is the only one on that side that understands trade. Now, he can't do anything about it because that's not his thing. But he has been gamed. He has been, it's a rigged system against him. And what happened with the choice of Tim Kaine was a slap in the face to Bernie Sanders and everybody. I was shocked. I love it from my standpoint, I love--
CHUCK TODD:
Why do you love the Kaine pick
DONALD TRUMP:
Well, first of all, he took over 160,000 of gifts. And they said, Well, they weren't really gifts, they were suits and trips and lots of different things, all for 160--
CHUCK TODD:

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 9 of 88 PageID #: 2246
Legal, legal in the state of Virginia. DONALD TRUMP: Bob McDonnell-- I believe it was Bob McDonnell, in the meantime, he had to go to the United States Supreme Court to get out of going to jail-CHUCK TODD: Well, they proved to quid pro quo-DONALD TRUMP: --for taking a fraction of what-CHUCK TODD: They proved quid pro quo on that one. DONALD TRUMP: Excuse me, Bob McDonnell took a fraction of what Kaine took. And I think, to me, it's a big problem. Now, how do you take all these gifts Hundreds of thousands of dollars. The other thing about him, he's bought and owned by the banks. And the third thing, he's in favor of TPP and every other trade deal that he's ever looked at. And that means he wants people not to work. Now, he's going to change his tune. And I understand he's now going to say, I'm against TPP. Hillary Clinton was totally in favor of TPP, which is the job killer, right So was he. When she watched me on your show and other shows, all of a sudden she changed, because she knows she can't win that in a debate. CHUCK TODD: All right. Ted Cruz, I'm going to amend it, are you really going to fund a super PAC to help defeat him-DONALD TRUMP: Well, it's not the number one thing on my mind. Look, what's on my mind is beating Hillary Clinton. What's on my mind is winning for the Republican Party. With that being said, yeah, I'll probably do a super PAC, you know, when they run against Kasich, for 10 million to 20 million, against Ted Cruz. And maybe one other person that I'm thinking about-CHUCK TODD: Who's that other one person DONALD TRUMP: --but I won't tell you that. I mean, he's actually such a small person, I hate to give him the publicity. But yes, I will probably do that at the appropriate at time. But I'm not going to do that until-CHUCK TODD: Oh, give me the small person here. DONALD TRUMP: No, no, don't worry about it. We'll give it to you another time. CHUCK TODD: All right, let me ask you about this one. David Duke announced his Senate candidacy claiming your agenda for his own, or essentially saying, Glad that you spoke out.

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 10 of 88 PageID #: 2247
DONALD TRUMP: Are you ready, before you ask the question CHUCK TODD: Newt Gingrich said, Every Republican should repudiate this guy no matter what it takes -DONALD TRUMP: I did. And I do. Are you ready I want-CHUCK TODD: Would you support a Democrat over David Duke if that was what was necessary to defeat him DONALD TRUMP: I guess, depending on who the Democrat, but the answer would be yes. Look, the answer is, as quick as you can say it. In fact, I went to answer you before you-DONALD TRUMP: Because last time with another person in your position, I did it very quickly. And they said, He didn't do it fast enough. Rebuked. Is that okay Rebuked, done-CHUCK TODD: Rebuked, done. Okay. Tax returns. A lot of conspiracy theories are being out there about why-- what's in your tax returns. You would get rid of all these conspiracy theories tomorrow-DONALD TRUMP: Let me tell you-CHUCK TODD: Probably make people look silly-DONALD TRUMP: Let me tell you. Let me give you a little lesson on tax returns. First of all, you don't learn very much from a tax return. I put in to the federal elections group 100 and some-odd pages of my financials. It showed, as you know, that I'm much wealthier than anybody even understood, okay Tremendous cash, tremendous assets, tremendous all that stuff. Okay, that's it. I'm going through a routine audit. Just a routine audit, and I've had it for I think 14 years, 13 years-CHUCK TODD: Why DONALD TRUMP: Every year they audit me. It's routine government. I would never give my tax returns until the audit's finished. But remember this: Mitt Romney, four years ago, was under tremendous pressure to give his tax returns. And he held it and held it and held it, and he fought it, and he, you know, he didn't do too well, okay But he didn't do anything wrong on his taxes. When he gave his tax returns, people forget, not now. He gave them in September, before the election-CHUCK TODD: So you still might release them--

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 11 of 88 PageID #: 2248
DONALD TRUMP: No, wait a minute, wait a minute. When he did, and his tax returns are a tiny peanut compared to mine, they went through his tax returns. And they found one little sentence, another little-- there was nothing wrong. And they made him look bad. In fact I think he lost his election because of that. CHUCK TODD: Because of the tax returns DONALD TRUMP: I think he lost. And I'll tell you why: He didn't do anything wrong. Mitt Romney did nothing wrong. But they would take out of, his weren't too big. Have you ever seen mine with the picture, they're like this high CHUCK TODD: I have seen that picture, yes. DONALD TRUMP: Okay, so they took his tax return and they found a couple of little things. Nothing wrong, just standard. And they made him look very bad, very unfair. But with all that said, I'd love to give them, but I'm under audit. When the audit's finished I'll give them. CHUCK TODD: Finally, Roger Ailes. Is he helping you Is he advising you DONALD TRUMP: Well, I don't want to comment. But he's been a friend of mine for a long time, and I can tell you that some of the women that are complaining, I know how much he's helped them. And even recently, and when they write books that are fairly recently released, and they say wonderful things about him. And now all of a sudden they're saying these horrible things about him. It's very sad. Because he's a very good person. I've always found him to be just a very, very good person. And by the way, a very, very talented person. Look what he's done. So I feel very badly. But a lot of people are thinking he's going to run my campaign. CHUCK TODD: Yeah, well-DONALD TRUMP: My campaign's doing pretty well. CHUCK TODD: Mr. Trump, until we meet again. DONALD TRUMP: Thank you very much-CHUCK TODD: Thank you for your time, sir, appreciate it. (END TAPE) CHUCK TODD:

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 12 of 88 PageID #: 2249
Up next, the man who had hoped to be the candidate being nominated by Democrats right here in Philadelphia this week, Senator Bernie Sanders of Vermont. What does he think of those leaked DNC e-mails We'll get his first comments since it happened. We're going to be right back in just a minute.
COMMERCIAL BREAK
(BEGIN TAPE)
CHUCK TODD:
Tremendous shots there of a beautiful city. Welcome back. It's not the kind of thing you want happening days before your convention. This weekend, Wikileaks released nearly 20,000 emails sent and received by members of the Democratic National Committee, some of which seem to confirm what a lot of people had suspected, that the DNC was playing favorites with Hillary Clinton over Bernie Sanders.
It appears Wikileaks either stole these emails or got them from a source. Remember, the DNC was hacked a few months ago. Among the emails was one from the DNC's Chief Financial Officer Brad Marshall that was looking ahead to the contests in Kentucky and West Virginia in early May. While not mentioning Sanders specifically by name, the email appeared to question Sanders' faith.
He wrote this, quote: Does he believe in a god I think I read he is an atheist. This could make several points difference with my peeps. My Southern Baptist peeps would draw a big difference between a Jew and an atheist. Well, Sanders has long believed that DNC Chair Debbie Wasserman Schultz was in Clinton's corner the whole campaign. Well, he joins me now. Senator Sanders, welcome back to Meet the Press.
And I should note that you talked about your belief in God last fall in an interview, I think, with your hometown paper there, so want to get that out of the way. So let me start with this question questioning your faith. Brad Marshall apologized on Facebook. Has anyone apologized to you personally And what is your response to this entire discussion
BERNIE SANDERS:
Well, no, nobody has apologized to me. And as you just mentioned, this really does not come as a shock to me or my supporters. There is no question but the DNC was on Secretary Clinton's side from day one. We all know that. And I think, as I have said a long time ago, that the time is now for Debbie Wasserman Schultz to step aside, not only for these issues.
We need a Democratic Party that is open, that's going to bring young people and working people into it, that is going to stand up and take on the big money interests and fight for working families. I don't think Debbie has been that type of leader. So I would hope, and I said this many months ago, that she would--
CHUCK TODD:
Right.
BERNIE SANDERS:
--step aside, we would have new leadership.
CHUCK TODD:
And do you think it needs to happen now, today, before the start of the convention
BERNIE SANDERS:
Well--
CHUCK TODD:
Would that help calm some of your supporters down
BERNIE SANDERS:

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 13 of 88 PageID #: 2250
Well, I think what is already happening is that it's clear she is not going to be speaking to the convention. That is the right thing. I think right now what we have got to focus on as Democrats is defeating perhaps the worst Republican candidate that I have seen in my lifetime. Donald Trump would be a disaster for this country. He must be defeated.
We've got to elect Secretary Clinton on every single issue: fighting for the middle class on health care, on climate change, is a far, far superior candidate to Trump. That's where I think the focus has got to be.
CHUCK TODD:
Do you believe that the DNC's apparent favoritism cost you this race
BERNIE SANDERS:
Well, I think you-- there are a lot of reasons why one loses. We started off 50 points behind Secretary Clinton. We had the opposition of virtually the entire Democratic leadership in every state in this country. And by the way, in terms of media, we did not get the kind of media attention that somebody like a Donald Trump got, because media is not necessarily interested in the issues facing the middle class, more interested in attacks in personality. So I think there were a lot of reasons.
But I will tell you this, Chuck, from the bottom of my heart, I am extraordinarily proud of the campaign that we ran. The issues that we raised, the fact that we got 13 million Americans to vote for a political revolution. People who know the economy is rigged in favor of big money, people who know that our middle class continues to decline and we have to go outside of establishment politics and economics, people who know that we need to reform a broken criminal justice system and we need comprehensive immigration reform.
The people-- what we did in our campaign is bring people together to say, You know what This country, our government, belongs to all of us and not just a few. So I am very proud of the campaign we ran and the supporters that came on board.
CHUCK TODD:
So just to sum up here, these leaks, these emails, it hasn't given you any pause about your support for Hillary Clinton
BERNIE SANDERS:
No, no, no. We are going to do everything that we can to protect working families in this country. And again, Chuck, I know media is not necessarily focused on these things. But what a campaign is about is not Hillary Clinton, it's not Donald Trump. It is the people of this country, people who are working longer hours for lower wages, people who do not have health care or are underinsured.
Hillary Clinton and I have worked together on a higher education proposal which will guarantee free tuition in public colleges and universities for every family in this country making 125,000 a year or less. We're going to fight for paid family and medical leave. Those are the issues that the American people want to hear discussed, and I'm going to go around the country discussing them and making sure that Hillary Clinton is elected president.
CHUCK TODD:
You know, The Green Party presumptive nominee, Jill Stein, put out a release yesterday about the emails. And she said this: Democratic Party elites have been caught red-handed, sabotaging a grassroots campaign that tried to bring huge numbers of young people, independents and non-voters into their party. Instead, they have shown exactly why America needs a new major party, a truly democratic party for the people. Are you going to urge your supporters not to support Jill Stein and try to thwart her efforts to recruit your supporters
BERNIE SANDERS:
Well, you know, let me just say this. As the longest serving Independent in the history of the United States Congress, as somebody who came into office by defeating an incumbent Democratic mayor in Burlington, Vermont, I know something about third party politics. And I respect Jill.

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 14 of 88 PageID #: 2251
But right now, the focus, to my mind, is to make sure that Donald Trump does not become president of the United States. I think by temperament he is unqualified to be president. I think his views-- you have a guy who's running for president who rejects science, doesn't even believe climate change is real, let alone wants to do something about it, wants to give hundreds of billions of dollars in tax breaks to the top two-tenths of one percent.
CHUCK TODD:
Let me ask you--
BERNIE SANDERS:
So my job right now is to see that Donald Trump is defeated, Hillary Clinton is elected.
CHUCK TODD:
You know, he makes a big deal out of the fact that you and he agree on one big issue, and that is trade deals, that these trade deals have been bad for the country. And he basically says that Clinton and Kaine, as a ticket, aren't-- that their opposition, for instance, the TPP as sort of Johnny-come-lately, that it can't be trusted, and that Sanders supporters should support Trump if they care about trade. What do you say to that
BERNIE SANDERS:
Well, I think in terms of who can be trusted, I think the evidence is clear that there has been no candidate that I have ever seen who lies more often than does Donald Trump. I mean and that's just not me saying it, that's what any independent media analysis has shown. So in terms of trust, you really can't trust a word, I think, that Mr. Trump has to say.
In terms of the TPP, it is no secret. I think our trade policies, for many, many years, have been a disaster. They have benefited corporate America at the expense of working people. Secretary Clinton has come out in opposition to the TPP, does not want to see it-
CHUCK TODD:
Right.
BERNIE SANDERS:
--appear in the lame duck Congress. That's my view, as well.
CHUCK TODD:
You know, some of your supporters are disappointed in the pick of Tim Kaine, that he's not progressive enough. I know Tim Kaine called you after he was picked. Do you consider Tim Kaine a progressive And are you happy with this pick
BERNIE SANDERS:
Look, you know, the pick is Secretary Clinton's. I've known Tim Kaine for a number of years. We've served in the Senate together, obviously. Tim is a very, very smart guy. He's a very nice guy. His political views are not my political views. He is more conservative than I am. Would I have preferred to see somebody like an Elizabeth Warren selected by Secretary Clinton Yes, I would have.
CHUCK TODD:
And then finally, do you feel as if, that you, when you got Glass-Steagall, I wanted to ask about this, because it looks like the one thing that both parties may agree on in their platforms is putting-- is being in favor of reinstating Glass-Steagall. Does this mean we will see that happen in the next Congress
BERNIE SANDERS:
Well, I'm going to do everything that I can to make it happen. You know, when we talk about our campaign, one of the things that we have been able to do, Chuck, is create the most progressive Democratic platform in the history of the Democratic Party, and that includes breaking up the large Wall Street banks and reestablishing Glass-Steagall.

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 15 of 88 PageID #: 2252
I think the American people understand that we cannot continue to have a handful of reckless, irresponsible banks often acting illegally, that something has to happen. They have to be broken up. CHUCK TODD: All right, Senator Bernie Sanders. The big speech is tomorrow night. We'll be waiting for you here in a very, very hot Philadelphia, over 100 degrees. BERNIE SANDERS: Okay. CHUCK TODD: Senator Sanders, thanks for coming on. Good to see you, sir. BERNIE SANDERS: Thank you very much. CHUCK TODD: When we come back, reaction to Hillary Clinton's choice of Tim Kaine as a running mate, who showed why he might have appeal, unique appeal, to a very important voting bloc. (BEGIN TAPE) SEN. TIM KAINE: Aprendilo valores de mi pueblo--faith, familia, y trabajo. (END TAPE) CHUCK TODD And we'll be back in a moment from Philadelphia with this great panel. Rachel Maddow, Michael Steele, Andrea Mitchell, and Chris Matthews. Stay tuned. (END TAPE) CHUCK TODD: And we'll be back in a moment from Philadelphia with this great panel, Rachel Maddow, Michael Steele, Andrea Mitchell, and Chris Matthews. Stay tuned.
COMMERCIAL TAPE CHUCK TODD: We are back. So much to talk about already. Our panel is here, Rachel Maddow, host of The Rachel Maddow Show on MSNBC, former chairman of the Republican National Committee, Michael Steele, he's sort of the fish out of water here in Philadelphia. Andrea Mitchell, NBC News, Chief Foreign Affairs Correspondent, host, of course, of Andrea Mitchell Reports on MSNBC. And a Philadelphia native himself, Mr. Brotherly Love Chris Matthews, host of Hardball-RACHEL MADDOW: Mr. Brotherly Love CHRIS MATTHEWS: And sisterly affection.

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 16 of 88 PageID #: 2253
CHUCK TODD: --Sisterly affection here for the Penn grad. CHUCK TODD: And-- this morning by the way we have new pictures of Tim Kaine walking into church this morning in Richmond, Virginia. He now realizes, and now his parish is realizing, what it's like to have Secret Service following around a member of the parish there. All right. RACHEL MADDOW: Know what his Secret Service name is going to be yet CHUCK TODD: What do we think the code name should be ANDREA MITCHELL: But we're not sure-RACHEL MADDOW: Well, the big joke was that if you're boring enough, your Secret Service name is Tim Kaine. CHUCK TODD: Ooh. RACHEL MADDOW: Right That-CHUCK TODD: Those are old Johnny Carson and Jay Leno, Al Gore jokes-CHUCK TODD: All right, you guys are having already too much fun. RACHEL MADDOW: Sorry, sorry. CHUCK TODD: Let me just throw it out here. We heard what Bernie Sanders said about Tim Kaine. It was, that was tougher than I expected. RACHEL MADDOW: His politics are not my politics. ANDREA MITCHELL: That's really -RACHEL MADDOW: He does not share my political views. That's an aggressive take from Bernie. I'm not surprised. Bernie's an aggressive politician. And I think when Senator Sanders speaks at the DNC, I think everybody's going to be on the edge of their seat. I think that he is not going to pull a Ted Cruz because he's already made an endorsement.

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 17 of 88 PageID #: 2254
CHUCK TODD: Well, he said, I'm for Hillary, and he was tough on Trump. RACHEL MADDOW: Yeah. And but he doesn't relish going after Trump. He likes going after the Democratic Party to try to move the Democratic Party. That's his target, always has been. MICHAEL STEELE: It's still obvious, he's not 'Feeling the Bern' for Hillary. And that was very obvious. And when you asked about the trust question, he didn't say he trusted Hillary Clinton. He said he didn't trust Donald Trump. So the reality of it is there's still some tension there that Bernie is reflecting among his supporters. And it was evident there. I mean-RACHEL MADDOW: He's got a mission that's bigger than one election. He always has. MICHAEL STEELE: That's true. ANDREA MITCHELL: And in fact, he could quiet the march that is planned to go from the center of Center City, and Rittenhouse Square all the way down at Independence Hall. This march is going to disrupt the city today, no matter how peaceful, because this is a city, in 100-degree heat, that is planning for a convention. And it's going to be a very large outpouring. He also said-CHUCK TODD: And by the way, the hotter it is, the crankier people will be. ANDREA MITCHELL: Yeah. And he also says that Tim Kaine doesn't share his politics, not only that, but that he would have preferred Elizabeth Warren. He made it very clear; Tim Kaine is a nice guy, but he's not endorsing or embracing someone who Hillary Clinton -CHUCK TODD: There's a painful look in your face, Chris. ANDREA MITCHELL: --called Tim Kaine a progressive. CHRIS MATTHEWS: He didn't get to pick. Hillary Clinton did. And I've watched Hillary Clinton. I've watched a lot of politicians over the years. You can tell when they're actually happy, not when they fake the laugh or anything else. She looked delighted during his speech yesterday. And I haven't seen her that delighted in a long time. She had found her guy to be her running mate. I think she loved it. And I think one thing we're getting all excited about, I understand why the progressives are upset. But one thing historically we all know is the selection of a vice president is a poor predictor of the direction of that administration. RACHEL MADDOW: Yeah. CHRIS MATTHEWS:

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 18 of 88 PageID #: 2255
FDR picked John Nance Garner-RACHEL MADDOW: It's not a policy pick. CHRIS MATTHEWS: Kennedy picked another conservative from the south, Lyndon Johnson, relatively conservative. And then we got the New Deal out of that and we got the Great Society we got the New Frontier. It's a poor predictor. Now, if this is about spoils, they've got an argument. They wanted a piece of the action. But there's differences between spoils and direction. CHUCK TODD: I want to throw out the one thing that Trump's trying to hit Kaine on, well, two things. But the one big one is the gifts in Virginia. RACHEL MADDOW: Yeah. CHUCK TODD: I only throw it out there is that I heard Ed Rendell ask to defend it. And he struggled, Andrea. He said, Well, it's illegal in Pennsylvania. ANDREA MITCHELL: Virginia-CHUCK TODD: Okay. And it's legal in Virginia. That wasn't exactly a resounding defense. ANDREA MITCHELL: Yeah. Virginia has a very strange, let's face it, strange gift law. The difference with Bob McDonnell, who was convicted, and then the Supreme Court overturned it, is there was no quid pro quo. He declared it. That was the main thing. He declared everything, put it down, in fact, computed higher numbers to staying in friends' houses. He put everything down. He was meticulous about it. So they don't think there's a big ethics thing. Just on his progressivity or lack of it, he has this civil rights background. I mean I was in the room. And what you saw on T.V. yesterday in Miami, in that largely Hispanic campus, that wonderful campus in Miami, it was extraordinary. The enthusiasm for him and the affection. And having watched her all of these years, you're absolutely right, Chris-CHUCK TODD: You know-ANDREA MITCHELL: --she found her guy. She was a happy camper. RACHEL MADDOW: He's not a progressive, but they will tell a very progressive story about his history. The party has moved to the left while he sort of always been a solid liberal. CHUCK TODD: Both of them are trying to-ANDREA MITCHELL:

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 19 of 88 PageID #: 2256
Yeah. CHUCK TODD: I feel like both Clinton and Kaine are trying to catch up to the party's movement. CHRIS MATTHEWS: That's so true. ANDREA MITCHELL: Well, on guns he was always there. He was heroic in Virginia on gun laws. CHUCK TODD: That they're moving-- and Michael, let me ask you this. The Trump camping says, We love the Kaine pick. And here's their reasoning. They love the Kaine pick because it reinforces that they're the political professionals, that here's Tim Kaine, and all he's done in life, is been in office for the last 25 years. MICHAEL STEELE: Right. CHUCK TODD: And the whole point of Trump is Trump's Mr. I'm the total outsider. If they want to double down on that, fine, go ahead. What do you say RACHEL MADDOW: Except Mike Pence MICHAEL STEELE: Right, right, right. CHUCK TODD: They pay no attention to that. I brought that brought to them. I said, What about Pence And they're like, Well, it's the top of the ticket. MICHAEL STEELE: Ignore that man behind the curtain. CHUCK TODD: What do you say to that Did they have a point or not MICHAEL STEELE: Well, they'll have a-- I think the broader point, is an interesting one. Because what he's comparing himself-- he's comparing himself, Trump, to Kaine-CHUCK TODD: Right. MICHAEL STEELE: --and Clinton. So it's me and against them.

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 20 of 88 PageID #: 2257
CHUCK TODD: Yeah. MICHAEL STEELE: Pence is not a part of that equation, necessarily. RACHEL MADDOW: Yeah. MICHAEL STEELE: So when he's talking about the maverick, the outsider, he's-- he's assuming his ticket is total that. ANDREA MITCHELL: Well, Pence wasn't even a part of his own rollout. MICHAEL STEELE: Right. ANDREA MITCHELL: If you remember. And that was-RACHEL MADDOW: He couldn't get a word in edgewise. ANDREA MITCHELL: Hillary Clinton spoke about Tim Kaine-MICHAEL STEELE: I think their strength, Chuck, is gonna be on the argument-- this notion that Tim Kaine is progressive is just not believable. And for a whole host of reasons. I think that's an opening for a lot of folks on Trump's side. RACHEL MADDOW: You can, there are element of his record that are not progressive, but on balance, I would argue that he is. ANDREA MITCHELL: I would argue that too. CHRIS MATTHEWS: But one thing, the guy's two doors from you, if you're president. Look at the structure of the West Wing now. It's not some guy that goes back to Maine like Lincoln's first vice president. He or she is right with you. MICHAEL STEELE: Right. CHRIS MATTHEWS: You want a good person two doors for you, somebody who has values. And it's not just smart politics. I think what Hillary Clinton's going to love having is a guy who's a true blue good guy. And I think he is a progressive on all the moral issues--

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 21 of 88 PageID #: 2258
CHUCK TODD: Let's sneak in a break here. When we come back, I want to get into the DNC e-mail situation. And I also want to get your guys' reaction to some interesting comments from Donald Trump. Yeah, you know that guy that was at the start of the show. We'll be right back.
COMMERCIAL BREAK CHUCK TODD: Welcome back, panelists here. Before we jump to Trump, the DNC email leaks, Cleveland, we expected rowdiness, Never Trumpsters, and all that stuff. We expect order here. But I wonder, Rachel, if-- look, I'm hearing from the Bernie bros. I'm in one of the emails just-I'm the complaint department here sometimes at NBC. Somebody was complaining about coverage. And I said, Okay, let's talk on the phone, or whatever. But we didn't do anything about it, because I get complaints about coverage every hour, every day. RACHEL MADDOW: Yeah. CHUCK TODD: But I think Bernie supporters may like this place, at least outside. They may be upset, and they may do something about it. RACHEL MADDOW: Yeah. I mean and, you know, there will be that big protest that Andrea was talking about today, to start things off. And there will be a lot, there will be hundreds of Bernie delegates insides the room. Now honestly, from the top, down, he said, We've got to elect Hillary Clinton. He's been unequivocal about that, that's the most important thing. It'll be interesting to see whether the rules fights and the platform fights end up, in the end, when there's need to get nailed down with those votes, there is some dissent and chaos there. There might be. CHRIS MATTHEWS: One thing is-CHUCK TODD: Do you think Debbie Wasserman Schultz needs to get out now CHRIS MATTHEWS: Well, look-CHUCK TODD: Not even gavel it in CHRIS MATTHEWS: This is not a mystery story. This isn't Colombo. CHUCK TODD: Yeah. CHRIS MATTHEWS: We knew from the beginning, watching the debate schedule, put together by the DNC-CHUCK TODD:

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 22 of 88 PageID #: 2259
Sure. CHRIS MATTHEWS: --that they were tilting the scales to Hillary Clinton. Middle of the night debates, Sunday morning -- it was an absurd debate schedule. And it just said, We're for Hillary, we don't want the new guy to get all the attention. ANDREA MITCHELL: And what Bernie said to you is that she's not going to be giving a speech. When does the party chair not give a speech at the convention And apparently that is the case. CHUCK TODD: And then right now, though, they will gavel in. RACHEL MADDOW: Thank god we haven't-- her quitting right now before -- I mean, the DNC's gonna be running a big part of the ground game for the whole-CHRIS MATTHEWS: Yeah. RACHEL MADDOW: You know, you don't-CHUCK TODD: But I tell you, this-RACHEL MADDOW: It would be suicide for the chair to jump out now-CHUCK TODD: This doesn't help her own fight for reelection, which I still think she's going to be okay. RACHEL MADDOW: No, but-CHUCK TODD: It's a district that she knows very well. But-ANDREA MITCHELL: But Bernie endorsed her opponent. RACHEL MADDOW: But her reelection fight is in her district. CHRIS MATTHEWS: Right. RACHEL MADDOW:

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 23 of 88 PageID #: 2260
It's not to be the chair of the DNC, that's next year. CHUCK TODD: All right. Michael Steele, what'd you hear from Donald Trump Did it make you feel better or worse about his chances MICHAEL STEELE: Well, I think Donald Trump did a couple of things he needed to do. One was, and you could see it in the room that night, people began to say, Okay, I can get there. The speech that he gave, when you read it, seemed a lot darker and harsher than when he delivered it. He delivered it in a way-RACHEL MADDOW: I thought the opposite. MICHAEL STEELE: Yeah, yeah. RACHEL MADDOW: When reading it, I wasn't freaked out. MICHAEL STEELE: Yeah. RACHEL MADDOW: And then, when I saw him give it, I pulled the covers up. MICHAEL STEELE: No, for me, it was the reverse. Because the reaction. I'm sitting in the room and I'm getting the reaction from the crowd. RACHEL MADDOW: Mmm. MICHAEL STEELE: And the reaction from the crowd was, This guy is going to be a fighter. And I think that's a strong message for him coming out of this convention. CHRIS MATTHEWS: Rachel, you have never pulled the covers up. RACHEL MADDOW:Oh no, I meant proverbially CHUCK TODD:There's a lot of personal information here. Woah, it's Sunday morning, guys. MICHAEL STEELE: I thought he did what he needed to do, Chuck. I do. RACHEL MADDOW: Standing under those 15-foot-tall letters with Trump, and then his head comes up there. And then he spent 76 minutes screaming, red faced, about terrorism and death and destruction and I'm the only one who can fix it --

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 24 of 88 PageID #: 2261
CHRIS MATTHEWS: I think that was technical. I don't think he knew how to read a script like that. I don't think he had the ability to-- his daughter knew how to do it. It's tough to read a script in a conversational manner. So you end up doing this sort of scream thing. RACHEL MADDOW: But it takes an ego to turn a 30 minute script into a 78 minute rant. ANDREA MITCHELL: But he said that he was the person who would fix everything. And they're focusing on that. But, you know, Kaine was focusing on that. You know, it is the we not the I. They're comparing him to a dictator. MICHAEL STEELE: But the-ANDREA MITCHELL: It is the language and the delivery, Michael-MICHAEL STEELE: Don't lose sight of the fact that a lot of Americans out there are saying it is the we who screwed us up to this point. CHRIS MATTHEWS: Yeah. MICHAEL STEELE: It is the we who've gotten us into this mess. ANDREA MITCHELL: It's a different way of defining democracy, Michael. MICHAEL STEELE: So they're looking for the I, someone who's going to step forward as a leader, to get us through this mess. This is the bifurcation of the of the population, the voting population right now. And it's going to be interesting to see which one of these arguments win-RACHEL MADDOW: Is this about the hunger for a strong man, is that what you're ta king about MICHAEL STEELE:Yeah no, there really is Rachel. RACHEL MADDOW:We've seen this around the world, it's not supposed to be us. CHRIS MATTHEWS: I've heard Bernie make your point. MICHAEL STEELE: Yes CHRIS MATTHEWS: It's that we have to reach outside the establishment to get the solution to these really bad economic problems affecting the working

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 25 of 88 PageID #: 2262
people of this country. MICHAEL STEELE: Right. CHRIS MATTHEWS: Same message. Different sides. MICHAEL STEELE:Same message. RACHEL MADDOW: Same message. The question is whether or not one man is supposed to deliver salvation for the country. We're not supposed to be that kind of country. CHUCK TODD: I want to throw one more. He seemed, at least in the interview with me, he goes after Mitch McConnell, goes after Ted Cruz, goes after John Kasich. ANDREA MITCHELL: He is fearless in that regard. CHUCK TODD:He really is. ANDREA MITCHELL: He is not going to moderate himself. RACHEL MADDOW: You didn't even ask about Kasich. And he's bringing it up CHUCK TODD: No, exactly. He brought Kasich up himself. ANDREA MITCHELL: And another player to be named player, who, you know, remain -- could be one of the senators like Jeff Flake. Look, the fact is that he is not playing by anybody's ground rules except Donald Trump's. What he said about N.A.T.O. was extraordinary because he doubled down on that. And the whole system of collect your security in Europe, if you're in Poland today, you are not reassured-CHUCK TODD: What's amazing is the Trump campaign tried to walk it back all last week on the N.A.T.O. stuff. And he's basically saying, Don't walk it back. RACHEL MADDOW: Even beyond N.A.T.O. to talk about Europe as a threat to America is what's good for Europe is bad for America and we have an interest in Europe being weak and divided, they only got together to screw us Like, hold on a second. CHRIS MATTHEWS: Yeah, it'll play in Scranton. It'll play up there in the Eerie, Pennsylvania it'll play. RACHEL MADDOW:

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 26 of 88 PageID #: 2263
The European Union-- came out of the way to try to not have World War III. CHRIS MATTHEWS: Because people think we're being shoved around and exploited and he's saying, I'm going to shove back. ANDREA MITCHELL: They are our markets-- markets, allies-CHUCK TODD: You guys great. I'm going to try to get another half hour. But let me sneak in this. We'll be back in a moment with our-- we'll call it halftime segment. No, it's Endgame Segment. And we'll look at Hillary Clinton's popularity compared to other Democratic nominees on the eve of their conventions.
COMMERCIAL BREAK CHUCK TODD: The panel never stops interacting here. Seriously we just went to a commercial break-RACHEL MADDOW: --wants more with France CHUCK TODD: It's endgame time. Look, I want to show you here very quickly some numbers, because it will help us judge whether this is a successful convention for Hillary Clinton. These are favorable ratings, personal favorable ratings, whether you're right side up or upside down, from our NBC Wall Street Journal poll, for every Democrat going back to '92. And as you can see, Hillary Clinton in the worst shape of any presumptive nominee going into their convention. Now, let me show you what everybody else came through after their convention. So successful convention for Bill Clinton, successful one for Al Gore. Flat for John Kerry, successful, Barack Obama. Obviously, we'll find out, for Hillary Clinton, what does she need to-ANDREA MITCHELL: Well, what they are going to do is they're going to have gauzy films, the same kind of films you saw in 1992, the same producers-CHUCK TODD: And JFK ANDREA MITCHELL: They're going to have all of these films, biography, r sum . They know that her r sum is not resonating with millennials. People know what she did, they don't know-- they know the list of what she was. They don't know what she actually did, what she accomplished. CHRIS MATTHEWS: Yeah. ANDREA MITCHELL: They're going to do all of that. The balance is going to be very different. RACHEL MADDOW: --because T.V. networks don't always take the movies anymore--

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 27 of 88 PageID #: 2264
ANDREA MITCHELL: Well, they're going to have to validators. RACHEL MADDOW: Yeah. ANDREA MITCHELL: They're going to have people on that podium behind it who are going to talk about things she has done for them. And it's going to be very much all about her and much less about taking down Trump CHRIS MATTHEWS: I think the magic moment in this convention's going to be Thursday night. And a lot of women, and a lot of men, too, are going to see Hillary Clinton as the first party nominee, who's probably going to be like the president. She has the advantage right now. And there are going to be misty eyes all across the country. And any men at that moment who make a wisecrack are going to be guaranteeing another vote for Hillary Clinton. I think it's a very emotional moment for people. They've haven't quite got to it because of all is mishegas that's gone on this year. I think it's going to be magical. And if Hillary Clinton just stands there with a little emotion, this is an amazing historic moment. CHUCK TODD: Michael was the Republican convention too anti-Clinton and not enough pro-Trump MICHAEL STEELE: No. The Republican convention had to go anti-Clinton-CHUCK TODD: Had to do that MICHAEL STEELE: --because of the Trump issues. CHUCK TODD: What about this one MICHAEL STEELE: This one I was thinking, as you guys were talking about Barack Obama and talking about Hillary Clinton being likable enough, this is going to be a convention in which they're going to showcase her so you can like her. Because people, those numbers show, don't like her. So it's going to be everything you just said, Chris, plus more. The problem is what happens afterwards. And that's where Hillary Clinton's going to have to contine . CHUCK TODD: Here's an out question for all of you. Besides Hillary Clinton's speech, what will be the other buzziest speech or speaker when we walk away from this convention RACHEL MADDOW: We're going to have a huge one on night one. Bernie is a big deal. MICHAEL STEELE:

http://www.nbcnews.com/pages/print

2/16/2017

nbcnews.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 28 of 88 PageID #: 2265
Bernie. RACHEL MADDOW: The Democratic Party is going through a transformation. Liberals are having their moment. And this convention has to reflect it. CHRIS MATTHEWS: Every Democratic convention I can remember, going back to, God, '64, the best speech was never given by the nominee, whether it's Bobby Kennedy or it's Jesse Jackson, or it's Mario Cuomo. MICHAEL STEELE: Right. CHRIS MATTHEWS: The candidates never have been able to deliver the best speech. So I would bet on Bernie. RACHEL MADDOW: It was Trump Jr. last week. CHRIS MATTHEWS: Bernie or President Obama. ANDREA MITCHELL: Michelle Obama and Barack Obama on day two. CHUCK TODD: I think it's Barack Obama on Wednesday night. I think it's going to be to Hillary Clinton what Bill Clinton was to Barack Obama four years ago. All right. That's all for this Sunday morning. CHRIS MATTHEWS: We agree. CHUCK TODD: I'll be hosting a special edition of Meet the Press Daily tonight at 5:00 Eastern on MSNBC. I know that's what everybody on this table will be watching. And then, throughout the week, I'll be joined by my colleagues Lester Holt and Savannah Guthrie right here at The Wells Fargo Center for convention coverage on the network beginning at 10:00 Eastern, 7:00 Pacific. If you missed it last week, you should be regretting it. Watch us this week. And of course we'll be back next Sunday. Because if it is Sunday, Meet the Press.
END OF TRANSCRIPT

http://www.nbcnews.com/pages/print

2/16/2017

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 29 of 88 PageID #: 2266
EXHIBIT

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 30 of 88 PageID #: 2267

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 31 of 88 PageID #: 2268
EXHIBIT

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 32 of 88 PageID #: 2269

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 33 of 88 PageID #: 2270

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 34 of 88 PageID #: 2271

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 35 of 88 PageID #: 2272

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 36 of 88 PageID #: 2273
EXHIBIT

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 37 of 88 PageID #: 2274

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 38 of 88 PageID #: 2275

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 39 of 88 PageID #: 2276
EXHIBIT

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 40 of 88 PageID #: 2277

onald Trump: I think Islam hates us - C olitics.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 41 of 88 PageID #: 2278
H
Donald Trump CNN interview (part 1) 10:15
READ: Donald Trump: 'It's over' if I win Ohio and Florida Asked if the hate was "in Islam itself," Trump would only say that was for the media to figure out. "You're gonna have to figure that out, OK?" he told Cooper. "We have to be very vigilant. We have to be very careful. And we can't allow people coming into this country who have this hatred of the United States."

http://www.cnn.com/2016/0 /0 /politics/donald-trump-islam-hates-us/

2/16/2017

onald Trump: I think Islam hates us - C olitics.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 42 of 88 PageID #: 2279
H
Donald Trump CNN interview (part 2) 10:59
Trump made headlines in December when he called for a temporary ban on Muslims entering the U.S., "until our country's representatives can figure out what is going on." Despite widespread condemnation of the remarks, Trump has stood by the proposal. Speaking to CNN's Wolf Blitzer on "The Situation Room" Thursday, Trump spokeswoman Katrina Pierson said the real-estate magnate stood by the sentiment that many Muslims worldwide sympathize with ISIS, but said Trump should've used "radical Islam." "It is radical Islamic extremists that do participate in these types of things," Pierson said, calling for a "broader perspective" of Muslims' ties to terror. "We've allowed this propaganda to spread all through the country that this is a religion of peace." In speaking with Cooper, Trump added that "there can be no doctrine" when asked to outline how he would project power overseas. Trump also tried to clarify his position on how far he would go in targeting the families of terrorists. He has said in the past that he is in favor of "expanding the laws" that govern how the U.S. can combat and deter terrorism, and Trump has called to bring back waterboarding, even vowing the U.S. "should go a lot further than waterboarding."

http://www.cnn.com/2016/0 /0 /politics/donald-trump-islam-hates-us/

2/16/2017

onald Trump: I think Islam hates us - C olitics.com Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 43 of 88 PageID #: 2280
H

Donald Trump talks about working with Democrats 00:51
READ: Trump: My Muslim friends don't support my immigration ban But Trump on Wednesday declined to say what specific measures he would support. "I'll work on it with the generals," he told Cooper. He added, "We have to play the game at a much tougher level than we're playing it now."

Obama photographer shades Trump over secure discussions

Pence's sphere of influence questioned in wake of Flynn fallout
Trump shows his true hand on LGBTQ rights
Feinstein, Grassley seek full briefing, transcripts of Flynn calls

http://www.cnn.com/2016/0 /0 /politics/donald-trump-islam-hates-us/

2/16/2017

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 44 of 88 PageID #: 2281
EXHIBIT

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 45 of 88 PageID #: 2282

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 46 of 88 PageID #: 2283

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 47 of 88 PageID #: 2284
EXHIBIT

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 48 of 88 PageID #: 2285

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 49 of 88 PageID #: 2286

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 50 of 88 PageID #: 2287

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 51 of 88 PageID #: 2288

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 52 of 88 PageID #: 2289

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 53 of 88 PageID #: 2290
EXHIBIT

Case 1:17C-cavs-e0014:1870--cCvB-1A015D4o-cNuMmGentD1o5c9u-2meFnitle5d5-032/1F6il/e1d7 02P/a0g3e/1574 oPfa8g8e P2aogfe4ID #: 2291

Case 1:17C-cavs-e0014:1870--cCvB-1A015D4o-cNuMmGentD1o5c9u-2meFnitle5d5-032/1F6il/e1d7 02P/a0g3e/1575 oPfa8g8e P3aogfe4ID #: 2292

Case 1:17C-cavs-e0014:1870--cCvB-1A015D4o-cNuMmGentD1o5c9u-2meFnitle5d5-032/1F6il/e1d7 02P/a0g3e/1576 oPfa8g8e P4aogfe4ID #: 2293

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 57 of 88 PageID #: 2294
EXHIBIT

D sorder at ACraposrtes a1s:T1ra7v-ecevrs-0Ar0e 4De8ta0n-eCdBWAthouDt Loawcyuerms eTnhet N1e5w9Y-o2r T Fmeilsed 02/16/17 Page 58 of 88 PageID #: 2229/156/17 9 07 AM

https://nyti.ms/2jLMxKS

N.Y. / REGION

Disorder at Airports as Travelers Are Detained Without Lawyers
By BENJAMIN MUELLER and MATTHEW ROSENBERG JAN. 29, 2017 Drab airport screening areas and waiting rooms were transformed into chaotic scenes on Sunday, with lawyers saying that border agents had put pressure on detainees and created an information blackout that left many struggling to discern how President Trump’s immigration order was being applied.

In New York, a lawyer said detainees were being moved from one terminal to another in handcuffs. In Los Angeles, an Iranian graduate student was pushed by border agents to sign documents allowing them to send her out of the country, her lawyers said. And in the Washington area, agents told lawyers that officials had barred detainees from getting legal help, despite a federal judge’s order that legal permanent residents be given access to lawyers.

Panic gave way to euphoria in some cases as travelers who had been detained for many hours were released and reunited with relatives. But well into Sunday, two days after Mr. Trump signed an executive order keeping many foreigners from entering the country, lawyers were still sweeping airport arrival sections in search of waiting relatives, often their only source of information about who was being held.

Some detainees said they had slept on office chairs. In Los Angeles, lawyers said Customs and Border Protection agents had told them there were cots but had declined to say how many there were, or how many people were being held.

https //www nyt mes com/2017/01/29/nyreg on/a rports trave ers deta ned execut ve order dona d trump htm ?_r=0

Page 1 of 5

D sorder at ACraposrtes a1s:T1ra7v-ecevrs-0Ar0e 4De8ta0n-eCdBWAthouDt Loawcyuerms eTnhet N1e5w9Y-o2r T Fmeilsed 02/16/17 Page 59 of 88 PageID #: 2229/166/17 9 07 AM
Detainees were told their phones would be disruptive and had to be taken. Lawyers and relatives were growing increasingly concerned about older detainees with medical problems.
Among those with ailments were an Iranian couple who had arrived in Los Angeles on visitors’ visas. The man, in his late 60s, had been through two open-heart operations, and he and his wife, in her late 50s, were both diabetic. After arriving at the airport on Saturday afternoon, they were allowed to call their daughter in the United States only once, around 1 a.m. on Sunday, said Patricia Corrales, a private lawyer working on detainees’ cases there. Relatives and lawyers repeatedly asked whether the couple were receiving proper medical care but learned nothing further from border agents.
Ms. Corrales, who was an Immigration and Customs Enforcement lawyer for 17 years, said, “I think they don’t necessarily have the resources, the staff and experience to deal with these large numbers.”
In a statement, the Department of Homeland Security said, “We are committed to ensuring that all individuals affected by the executive orders, including those affected by the court orders, are being provided all rights afforded under the law.”
Some detainees were reportedly pressured to sign documents they hardly understood and then put on flights out of the country. When two brothers from Yemen, Tareq Aqel Mohammed Aziz, 21, and Ammar, 19, landed on Saturday morning at Dulles International Airport near Washington with immigrant visas, they planned to board a connecting flight to Flint, Mich., to join their father. Instead, they were taken off the plane, put into handcuffs and told they needed to sign a form or face being barred from the country for five years, said their lawyer, Simon Y. Sandoval-Moshenberg, of the Legal Aid Justice Center in Virginia. They signed the form and were quickly put on a plane to Ethiopia.
A 24-year-old Iranian woman who is a graduate student in the United States told relatives of a similar problem at Los Angeles International Airport, where she

https //www nyt mes com/2017/01/29/nyreg on/a rports trave ers deta ned execut ve order dona d trump htm ?_r=0

Page 2 of 5

D sorder at ACraposrtes a1s:T1ra7v-ecevrs-0Ar0e 4De8ta0n-eCdBWAthouDt Loawcyuerms eTnhet N1e5w9Y-o2r T Fmeilsed 02/16/17 Page 60 of 88 PageID #: 2229/176/17 9 07 AM
arrived on Saturday after a trip visiting family members in Europe. Border agents told the woman that her student visa was no longer valid, which lawyers said was not true, and that if she did not sign a document saying she was leaving voluntarily, she would be forcibly deported and barred from entry for five years.
The Iranian student signed. She had not been allowed to consult a lawyer and was permitted only three calls to relatives before her phone was confiscated and searched, said Ms. Corrales and Judy London, the directing attorney of the nonprofit Public Counsel’s Immigrants’ Rights Project, both of whom spoke with the woman’s relatives. On Saturday night, after a federal judge in Brooklyn ruled the government could not remove travelers who had arrived with valid visas, she was put on a plane back to Europe, her lawyers said. They declined to share her name out of concern for her safety.
On Sunday morning, Ms. Corrales spoke to a supervisor from the customs agency who suggested that the Iranian student was still at the Los Angeles airport. The supervisor told Ms. Corrales that “they were waiting for orders from higherups in terms of how to enforce the injunction,” Ms. Corrales said, referring to the Brooklyn judge’s ruling.
Some detainees dealt with the whiplash of plans changing by the hour. A group of five Iranians detained in New York told family members on Sunday morning that the government planned to put them on a 1:30 p.m. flight back to Turkey, said Melanie Zuch, a staff lawyer at the Urban Justice Center. Several hours later, some of them were told they would be allowed to stay.
Vahideh Rasekhi, a graduate student at Stony Brook University on Long Island who was also detained at Kennedy Airport, said she and other detainees were also told they would be put on flights back out of the country, with agents promising only that if they held out a little longer, they might work out a way to keep them in the United States. Eventually they did, and shortly after 2:30 p.m., Ms. Rasekhi walked into Terminal 4 and was immediately surrounded by loved ones, lawyers and journalists.

https //www nyt mes com/2017/01/29/nyreg on/a rports trave ers deta ned execut ve order dona d trump htm ?_r=0

Page 3 of 5

D sorder at ACraposrtes a1s:T1ra7v-ecevrs-0Ar0e 4De8ta0n-eCdBWAthouDt Loawcyuerms eTnhet N1e5w9Y-o2r T Fmeilsed 02/16/17 Page 61 of 88 PageID #: 2229/186/17 9 07 AM
“I’m just so exhausted,” she said.
She said that detainees had been given meals and water and that agents had even satisfied one person’s request for a lemon. Others gave accounts of more difficult conditions; one lawyer, Justin Orr, said some detainees had been given nothing but chocolate to eat.
Mousa Ahmadi, 30, an Iranian graduate student at the New Jersey Institute of Technology, gave a long hug to his sister, Dr. Fahimeh Ahmadi, 40, after she was released from additional screening at Kennedy. The siblings had not seen each other for over three years.
Dr. Ahmadi, a general practitioner in the Australian city of Gold Coast and a dual citizen of Australia and Iran, arrived for a long-planned visit without the siblings’ parents, who hold only Iranian passports and canceled their flights on Saturday.
“My Mom said, ‘If they don’t let me in the country do you think I can see him even for a half hour?’” Dr. Ahmadi recalled. “She said, ‘Is there a window where I can see him?’”
Lawyers at J.F.K. said that about half a dozen detainees were still in custody by late Sunday afternoon. The Los Angeles Police Department told lawyers there earlier on Sunday that about 40 people were being held.
A federal judge in Alexandria, Va., on Saturday ordered government officials to give lawyers access to all legal permanent residents being detained at Dulles. But when lawyers showed border agents there the court order and requested access to detainees, a supervisor replied, “That’s not going to happen.”
Matt Zeller, who runs No One Left Behind, a group that helps bring over Iraqis and Afghans who worked for the military, said he was told that there were 40 to 55 people who had been pulled aside by customs officers at Dulles on Sunday evening, and that at least some were Iraqis, although it was not clear if any had worked for the military. Detainees who had been released overnight — many of whom had

https //www nyt mes com/2017/01/29/nyreg on/a rports trave ers deta ned execut ve order dona d trump htm ?_r=0

Page 4 of 5

D sorder at ACraposrtes a1s:T1ra7v-ecevrs-0Ar0e 4De8ta0n-eCdBWAthouDt Loawcyuerms eTnhet N1e5w9Y-o2r T Fmeilsed 02/16/17 Page 62 of 88 PageID #: 2229/196/17 9 07 AM
green cards — spoke of hours of uncertainty as they waited to find out if they would be allowed into a country that they called home but that no longer seemed to want them.
“This is not the America that I have lived in,” said one man who had been released, Seifollah Moradi, 34, a student from Columbia, Md., who has a green card. “We used to be treated with respect. This is the land of freedom.”
Mr. Moradi had been held for six hours after returning from Tehran, where he was visiting his sick father.
Protesters, who were lined up just past the set of one-way doors that separate the public areas of the Dulles arrival hall from the immigration and baggage claim areas for international flights, cheered loudly as Mr. Moradi came through the doors. They chanted, “Welcome to the U.S.A.,” and, “No hate, no fear, refugees are welcome here.”
Mr. Moradi, his face drawn, hardly seemed to notice.
Reporting was contributed by Ruth Bashinsky, Sheri Fink, Sean Piccoli and Liz Robbins.
A version of this article appears in print on January 30, 2017, on Page A13 of the New York edition with the headline: Confusion and Disorder at Airports as Travelers Are Detained Without Lawyers.
© 2017 The New York Times Company

https //www nyt mes com/2017/01/29/nyreg on/a rports trave ers deta ned execut ve order dona d trump htm ?_r=0

Page 5 of 5

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 63 of 88 PageID #: 2300
EXHIBIT

CCasaese1:11:71-7c-vc-v0-00408101-6C-LBMAB-DToCcBumDeonct u1m59e-n2t 5F5ileFdil0e2d/1062//1078/1P7agPea6g4e o1f o8f87PPaaggeeIDID##: 3263201

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al.,

)

)

Petitioners,

)

)

THE COMMONWEALTH OF VIRGINIA,

)

)

Intervenor-Petitioner,

)

)

v.

)

)

DONALD TRUMP, President of the United

)

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

DECLARATION OF TAREQ AQEL MOHAMED AZIZ

1

CCasaese1:11:71-7c-vc-v0-00408101-6C-LBMAB-DToCcBumDeonct u1m59e-n2t 5F5ileFdil0e2d/1062//1078/1P7agPea6g5e o2f o8f87PPaaggeeIDID##: 3263302

CCasaese1:11:71-7c-vc-v0-00408101-6C-LBMAB-DToCcBumDeonct u1m59e-n2t 5F5ileFdil0e2d/1062//1078/1P7agPea6g6e o3f o8f87PPaaggeeIDID##: 3263403

CCasaese1:11:71-7c-vc-v0-00408101-6C-LBMAB-DToCcBumDeonct u1m59e-n2t 5F5ileFdil0e2d/1062//1078/1P7agPea6g7e o4f o8f87PPaaggeeIDID##: 3263504

CCasaese1:11:71-7c-vc-v0-00408101-6C-LBMAB-DToCcBumDeonct u1m59e-n2t 5F5ileFdil0e2d/1062//1078/1P7agPea6g8e o5f o8f87PPaaggeeIDID##: 3263605

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 69 of 88 PageID #: 2306

CCasaese1:11:71-7c-vc-v0-00408101-6C-LBMAB-DToCcBumDeonct u1m59e-n2t 5F5ileFdil0e2d/1062//1078/1P7agPea7g0e o7f o8f87PPaaggeeIDID##: 3263807 CERTIFICATE OF SERVICE
I hereby certify that on February 8, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael
1

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 71 of 88 PageID #: 2308
EXHIBIT

Case 1:17C-cavs-e0014:1870--cCvB-1A015D4o-cNuMmGentD1o5c9u-2meFnitle5d5-042/1F6il/e1d7 02P/a0g3e/172 oPfa8g8e P2aogfe3ID #: 2309

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 73 of 88 PageID #: 2310

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 74 of 88 PageID #: 2311
EXHIBIT

Case 1:17C-cavs-e0014:1870--cCvB-1A015D4o-cNuMmGentD1o5c9u-2meFnitle5d5-062/1F6il/e1d7 02P/a0g3e/175 oPfa8g8e P2aogfe4ID #: 2312

Case 1:17C-cavs-e0014:1870--cCvB-1A015D4o-cNuMmGentD1o5c9u-2meFnitle5d5-062/1F6il/e1d7 02P/a0g3e/176 oPfa8g8e P3aogfe4ID #: 2313

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 77 of 88 PageID #: 2314

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 78 of 88 PageID #: 2315
EXHIBIT

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 79 of 88 PageID #: 2316

Case 1:17C-cavs-e0014:1870--cCvB-1A015D4o-cNuMmGentD1o5c9u-2meFnitle5d5-052/1F6il/e1d7 02P/a0g3e/1870 oPfa8g8e P3aogfe4ID #: 2317

Case 1:17C-cavs-e0014:1870--cCvB-1A015D4o-cNuMmGentD1o5c9u-2meFnitle5d5-052/1F6il/e1d7 02P/a0g3e/1871 oPfa8g8e P4aogfe4ID #: 2318

Case 1:17-cv-00480-CBA Document 159-2 Filed 02/16/17 Page 82 of 88 PageID #: 2319
EXHIBIT

CCasaese1:11:71-7c-vc-v0-00408101-6C-LBMAB-DToCcBumDeonct u1m59e-n2t 5F4ileFdil0e2d/1062//1078/1P7agPea8g3e o1f o8f86PPaaggeeIDID##: 3253620

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

TAREQ AQEL MOHAMMED AZIZ, et al., )

)

Petitioners,

)

)

THE COMMONWEALTH OF VIRGINIA, )

)

Intervenor-Petitioner,

)

)

v.

)

)

DONALD TRUMP, President of the United )

States, et al.,

)

)

Respondents.

)

Civil Action No. 1:17-cv-116

DECLARATION OF NAJWA ELYAZGI

I, Najwa Elyagi, declare that the following facts are true to the best of my knowledge, information and belief:
1. I am a twenty-three-year-old student at George Mason University in Fairfax, Virginia. I have been a student at GMU since 2014, and I am now in my senior year pursuing a
gree in international relations, with minors in leadership and conflict resolution. I have devoted myself with passion to my studies and currently have a 3.98 grade point average (GPA). I am active in organizations that relate to my interest in international relations and politics, and I want my career to involve helping countries get along better.
2. I am a citizen of Libya. While there is political instability in Libya, the vast majority of Libyans yearn for peace and democracy. They consider the United States their friend and are allies in the fight against terrorism. I have family who live in the United States,

1

CCasaese1:11:71-7c-vc-v0-00408101-6C-LBMAB-DToCcBumDeonct u1m59e-n2t 5F4ileFdil0e2d/1062//1078/1P7agPea8g4e o2f o8f86PPaaggeeIDID##: 3253721

including a brother who is a green-card holder and is doing his medical residency, and an aunt

and uncle and cousins who are U.S. citizens.

3. In 2011, I had the highest GPA for my high-school year in Libya, and I was

awarded a full scholarship by the Libyan government to study at any university in the world that

granted me admission. I chose to apply to schools in the United States because I believed it was

a country that would accept my culture, and I located near Washington, D.C. because of my

interest in international relations and politics. Studying in the U.S. has been a cross-cultural and

educational opportunity that is rarely available to Libyan women.

4. As a citizen of Libya, I can travel to the United States only on a Libyan passport.

Visa applications from Libyans are heavily scrutinized and visas are difficult to get. I have an F-

1 student visa, which required about a year to obtain in the first place. Whenever I leave the

United States and wish to reenter, I need to obtain an updated F-1 visa. Without a U.S. embassy

in the Libyan capital, Tripoli, Libyan citizens like me must travel outside the country to obtain a

U.S. visa. Before this year, I had entered and left the United States seven times since 2014

without any problems.

5.

I traveled home to

Libya to visit family. I departed the United States from Dulles International Airport on

December 27, 2016. I originally planned to return to the United States on January 22, 2017, but

the issuance of my updated F-1 visa by the U.S. consulate in London, England was delayed.

6. On January 27, having obtained an updated F-1 visa in London, I began my

planned trip back to the United States. My travel itinerary from London to Dulles on Turkish

Airlines included a 10-hour layover in Istanbul

Airport. I arrived in Istanbul at 5 a.m.

local time on January 28. My excitement about returning to school turned to high anxiety when I

2

CCasaese1:11:71-7c-vc-v0-00408101-6C-LBMAB-DToCcBumDeonct u1m59e-n2t 5F4ileFdil0e2d/1062//1078/1P7agPea8g5e o3f o8f86PPaaggeeIDID##: 3253822
got off the plane and learned on social media and at airport television monitors of President issued while I was in the air. I
learned that the Executive Order prohibits persons travelling on passports from seven countries, including Libya, from entering or re-entering the United States.
7. I went to the boarding gate for my scheduled outbound flight to Dulles and asked the security officials assigned to that gate if I would be affected by the Executive Order, and they said no. They explained that they did not yet have official instructions from the U.S. Customs and Border Protection to implement the Executive Order. I felt deep relief when I was provided a boarding pass by airline personnel.
8. At 2 p.m., when I arrived to wait in line to board my scheduled flight, my relief turned to anxiety again when one of the same security officials approached me and said that he had received updated information about the Executive Order and that I would not be allowed to board the plane to Dulles. He pulled me out of line and the flight departed without me. I waited at the airport until 7 p.m. for my checked luggage to be returned to me, and then I left the airport in search of a hotel.
9. I found a hotel near the airport and ended up staying there for more than 6 days, alone and worried about what was going to happen. It was a nightmare. I checked the news frequently, and spoke often with my family and with contacts in the United States, including GMU, trying to figure out how I was going to get back. My classes at GMU had resumed, and I worried about my absence from them. I was also worried about the money I was spending while stranded. My family had to arrange for money to be sent to cover my unexpected lodging and travel expenses. Without knowing if I would ever be allowed to return to the United States, I
3

CCasaese1:11:71-7c-vc-v0-00408101-6C-LBMAB-DToCcBumDeonct u1m59e-n2t 5F4ileFdil0e2d/1062//1078/1P7agPea8g6e o4f o8f86PPaaggeeIDID##: 3253923
began looking at other universities outside the United States. I even applied to and was accepted by one, given my high grades and the emergency circumstances.
10. Late in the week, I learned that Lufthansa was recognizing an order by a federal court in Massachusetts that stopped the U.S. government and authorities from implementing the Executive Order against persons like me who had valid visas to study in the U.S. but happened to be abroad when the Executive Order was issued. The few tickets on Lufthansa flights to Boston were quickly snatched up, and although I would have paid a very high price just to get back, I was unable to purchase one.
11. Early on February 4, I learned that a federal court in Washington State had temporarily stopped enforcement of the Executive Order. Hoping it was true that the ban was lifted, I went to the airport and was so happy when security officials verified that for me. I quickly bought a ticket to Dulles on a Turkish Airlines flight that departed that morning the same itinerary I had booked for a week earlier and I was cleared to fly.
12. I arrived at Dulles the evening of February 4 and was very prepared for extra security to re-enter the United States. I was surprised to be allowed in very quickly. Instead of the hour or more I expected to wait, the process took only a few minutes. When I left the secure area, I was so happy to be greeted by my family and others who celebrated my arrival back.
13. I am now back in classes at GMU and I have been catching up on schoolwork since I returned. I am still frustrated by the ordeal that I experienced. The Executive Order was released hastily and became immediately effective without any advance warning to travelers like me. The lack of notice was grossly unfair to students like me who have respected the laws of the United States and made travel plans in reliance on our ability to come and go. My experience made me understand better how refugees must feel when their world is turned upside down.
4

CCasaese1:11:71-7c-vc-v0-00408101-6C-LBMAB-DToCcBumDeonct u1m59e-n2t 5F4ileFdil0e2d/1062//1078/1P7agPea8g7e o5f o8f86PPaaggeeIDID##: 3263024

14. I also wonder why the U.S. government did not do more to help. The Department

of Homeland Security and the State Department were tasked by the Executive Order to develop

any exceptions to the ban, but they appeared uninterested in making these exceptions. The U.S.

Consulate in Istanbul told me it did not have jurisdiction to review my request for an exception

to the Executive Order. I wondered whether the people who drafted the Executive Order really

meant to keep me out of America and deprive me of an invaluable opportunity to complete my

education at GMU.

15. Because of the Executive Order, I estimate that I incurred extra costs of about

$4,000 in food, lodging, and travel and flight-change fees. Luckily, my family was able to

scramble and get the money to me, but I know others are not as fortunate.

16. Because of the Executive Order, I missed a week of classes, and I hope that I

never have to miss any more. I worry that if the Executive Order is extended, and I am

prevented from re-entering the United States if I have to leave, then my education plans will be

severely disrupted, and I will have lost the significant time and money that I have invested in my

education in the last three years.

17. Because of the Executive Order, I am reconsidering my plans to pursue a further

degree in the United States.

degree would take about three years, and I could not risk

the possibility of not being able to visit my parents during that time. Although I love the people

of the United States, I am now considering applying to graduate programs in Canada instead.

Pursuant to 28 U.S.C. § 1746, I, Najwa Elyazgi, declare under the penalty of perjury that the foregoing is true and correct.

Executed on February 7, 2017.

____________________________________ NAJWA ELYAZGI
5

CCasaese1:11:71-7c-vc-v0-00408101-6C-LBMAB-DToCcBumDeonct u1m59e-n2t 5F4ileFdil0e2d/1062//1078/1P7agPea8g8e o6f o8f86PPaaggeeIDID##: 3263125 CERTIFICATE OF SERVICE
I hereby certify that on February 8, 2017, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the counsel of record for Petitioners and Respondents.
By: /s/ Stuart A. Raphael
1

 </s> Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 1 of 32 PageID #: 2326

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI, on behalf of themselves and others similarly situated,
Petitioners,
and
PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK,
Intervenor-Plaintiff,
-against-
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and JAMES T. MADDEN, New York Field Director, CBP,
Respondents.

Case No. 1:17-cv-00480(CBA)

BRIEF FOR AMICI CURIAE THE CITIES OF NEW YORK, NY; ALBANY, NY; AUSTIN, TX; BUFFALO, NY; CHICAGO, IL; GARY, IN; ITHACA, NY; JERSEY CITY, NJ; LOS ANGELES, CA; MADISON, WI; MINNEAPOLIS, MN;
NASHVILLE, TN; NEW HAVEN, CT; OAKLAND, CA; PATERSON, NJ; PHILADELPHIA, PA; PLAINFIELD, NJ; PORTLAND, OR; PROVIDENCE, RI; ROCHESTER, NY; SANTA MONICA, CA; SEATTLE, WA; SCHENECTADY, NY;
SOMERVILLE, MA; SOUTH BEND, IN; SYRACUSE, NY; TRENTON, NJ; WEST HOLLYWOOD, CA; AND YONKERS, NY; THE CITY AND COUNTY OF SAN FRANCISCO, CA; THE TOWN OF CARRBORO, NC; THE BOROUGHS OF HALEDON, NJ AND PRINCETON, NJ; AND THE VILLAGE OF SKOKIE, IL
IN SUPPORT OF PETITIONERS

RICHARD DEARING CLAUDE S. PLATTON SUSAN P. GREENBERG KATHY CHANG PARK
of Counsel

ZACHARY W. CARTER Corporation Counsel of the City of New York 100 Church Street New York, New York 10007 212-356-2500

(Additional Counsel Listed on Signature Page)

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 2 of 32 PageID #: 2327
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................... ii
INTEREST OF AMICI CURIAE AND SUMMARY OF ARGUMENT........................ 1
ARGUMENT .................................................................................................................. 4
THE PUBLIC INTEREST STRONGLY FAVORS INJUNCTIVE RELIEF..... 4
A. The Executive Order Will Damage the Economic Vitality and Social Fabric of Amici Cities....................................................................... 5
1. The economies and cultures of the amici cities depend on openness to immigrants and visitors. ................................................... 5
2. The harms wrought by the Executive Order are sharply magnified by the Order’s failure to furnish constitutionally required procedural protections. ........................................................... 9
B. The Executive Order Sends a Message of Fear and Animus that Will Harm Amici’s Efforts to Keep Our Cities Safe. ....................................... 12
1. Enshrining religious and national origin discrimination in federal policy clashes with cities’ attempts to combat discrimination and hate crimes. ......................................................... 12
2. Creating an atmosphere of fear and intimidation chills cooperation with local law enforcement and makes victims fearful to report crimes........................................................................ 16
3. The Executive Order’s broad-brush approach destabilizes security and counterterrorism efforts, rather than making our populations safer. ................................................................................ 17
CONCLUSION............................................................................................................. 21

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 3 of 32 PageID #: 2328
TABLE OF AUTHORITIES Page(s)
Cases Ashcroft v. Iqbal,
556 U.S. 662 (2009) ................................................................................................ 13 Kabenga v. Holder,
76 F. Supp. 3d 480 (S.D.N.Y. 2015) ......................................................................... 5 Kerry v. Din,
135 S. Ct. 2128 (2015) .............................................................................................. 9 Landon v. Plasencia,
459 U.S. 21 (1982) .................................................................................................... 9 Lemon v. Kurtzman,
403 U.S. 602 (1971) ................................................................................................ 13 Nken v. Holder,
556 U.S. 418 (2009) .................................................................................................. 4 Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290 (2000) ................................................................................................ 16 Village of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) ................................................................................................ 13 Washington v. Trump,
No. 17-35105, 2017 U.S. App. LEXIS 2369 (9th Cir. Feb. 9, 2017) ........ 1, 8, 10, 13 Washington v. Trump,
No. C17-0141JLR, 2017 U.S. Dist. LEXIS 16012 (W.D. Wash. Feb. 3, 2017), emergency stay denied, 2017 U.S. App. LEXIS 2369 (9th Cir. Feb. 9, 2017) ...................................................................................................... 1 Zadvydas v. Davis, 533 U.S. 678 (2001) .................................................................................................. 9 Statutes 8 U.S.C. § 1152(a)(1)(A) ............................................................................................... 13
ii

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 4 of 32 PageID #: 2329
8 U.S.C. § 1158(a)(1) § 1225(b)(1)(A)(ii) § 1231(b)(3)(A) ........................................................................................................ 10
Chi. Mun. Code § 8-4-020 § 8-4-085.................................................................................................................. 14
S.F. Police Code Art. 33, §§ 3301-3313 ....................................................................... 14
Hollywood Mun. Code Ch. 9.32 ................................................................................... 14
Ind. Mun. Code § 2-127................................................................................................ 14
L.A. Admin. Code § 4.400 § 10.8 § 10.13 ..................................................................................................................... 14
L.A. Charter § 104(i) § 1024 ...................................................................................................................... 14
Madison Gen. Ordinance § 39.03 ................................................................................ 14
N.Y.C. Admin. Code §§ 8-101 to 8-907 ........................................................................ 14
Phila. Code §§ 9-1100 to 9-1130 .................................................................................. 14
Providence Code of Ord. 2014, ch. 2014-33, § 1, 8-8-14.............................................. 14
S.F. Admin. Code § 12B § 12C ....................................................................................................................... 14
Santa Monica Mun. Code § 4.48.030........................................................................... 14
Other Authorities
6 Major U.S. Cities Are Ramping Up Police Efforts to Fight a Surge of Hate Crimes Following Trump’s Win, Business Insider (Nov. 30, 2016), http://read.bi/2ldRbW9 ................................................................................ 16
8 C.F.R. § 1208.5 § 1208.16 ................................................................................................................. 10
iii

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 5 of 32 PageID #: 2330
Alan Berube, These Communities Have a Lot at Stake in Trump’s Executive Order on Immigration, The Brookings Institution (Jan. 30, 2017), http://brook.gs/2jnBzit (last visited Feb. 14, 2017) ................................ 3
American Community Survey 2011-2015, U.S. Census Bureau, http://bit.ly/2dmQmHD (last visited Feb. 14, 2017)................................................ 2
Bay Area Muslims Face Ongoing Islamophobia, The San Francisco Foundation (May 15, 2013), http://bit.ly/2kWHMkw .............................................. 3
Brad Plumer, Nine Facts About Terrorism in the United States Since 9/11, The Wash. Post (Sept. 11, 2013) .................................................................. 18
Christopher Mele, Man Kicked J.F.K. Airport Worker Wearing Hijab, Prosecutor Says, N.Y. Times (Jan. 26, 2017)......................................................... 15
Combatting Terrorism, Archives of Rudolph W. Giuliani (Oct. 1, 2001), http://on.nyc.gov/2lN7PIA ...................................................................................... 20
Counter-Terrorism and Special Operations Bureau, L.A. Police Dep’t, http://bit.ly/2lN9kXm (last visited Feb. 14, 2017) ................... 19
Eric Bradner, NYC Mayor: Trump Travel Ban Sends a Horrible Message, CNN (Jan. 29, 2017), http://cnn.it/2lHmaKE .......................................... 9
H.R. Rep. No. 101-723(1), (1990)................................................................................... 8
Interactive Reporting, U.S. Dep’t of State Bureau of Population, Refugees, and Migrants Office of Admissions, Refugee Processing Center, http://bit.ly/2hTJ1Oi (last visited Feb. 16, 2017) ....................................... 2
International Students in NYC, N.Y.C. Eco. Dev. Corp. (Jan. 28, 2014), http://bit.ly/2knj5iO .................................................................................................. 6
Jamie Crawford, Former Spy Chief Calls Trump’s Travel Ban ‘Recruiting Tool for Extremists,’ CNN (Feb. 9, 2017), http://cnn.it/2lHBk2J.............................................................................................. 20
John R. Ellement, Police ‘Need to Build Trust’ with Immigrant Community, Evans Says, Boston Globe (Jan. 31, 2017), http://bit.ly/2lgwtEu. .............................................................................................. 17
L.A. Mayor and Other City Leaders Denounce President Donald Trump’s Travel Ban, KCET (Feb. 1, 2017), http://bit.ly/2kPZOFm ..................... 18
LAPD Named Best Counterterrorism Squad, Homeland Security News Wire (Nov. 29, 2011), http://bit.ly/2l5r4xZ............................................................. 19
iv

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 6 of 32 PageID #: 2331
Laura Ly, Muslim NYPD Officer Threatened, Told ‘Go Back to Your Country,’ CNN (Dec. 6, 2016), http://cnn.it/2kPIdgx............................................... 3
L.B. Johnson, Remarks at the Signing of the Immigration Bill, Liberty Island, New York (Oct. 3, 1965), http://bit.ly/2kCuW7Z ......................................... 6
Ltr. from Madeline K. Albright, et al., to Hon. John F. Kelly, et al. (Jan. 30, 2017), available at http://politi.co/2klc2FU. ........................................... 20
Los Angeles Sets New Tourism Record, Announces 45.5 Million Visitors in 2015, Discover Los Angeles (Jan. 19, 2016), http://bit.ly/2kngyFj ..................... 7
Los Angeles World Airports, http://bit.ly/2lMJvY2 (last visited Feb. 14, 2017)........................................................................................................................ 19
Mayor Elorza Announces City Hate Crime Hotline, Office of Mayor Jorge O. Elora (Feb. 9, 2017), http://bit.ly/2kvRcFo.............................................. 16
Mayor Emanuel and Choose Chicago Announce Record Tourism in 2016, Choose Chicago (Jan. 5, 2017), http://bit.ly/2lWrLsM .................................. 7
Message From Chancellor Milliken, The City University of New York (Jan. 29, 2017), http://bit.ly/2khI6dQ ...................................................................... 8
Michael Scotto, NYPD Reports a Spike in Hate Crimes Around the City Since Election Day, Time Warner Cable News (Dec. 5, 2016), http://bit.ly/2h27SPM ............................................................................................. 14
Morgan Winsor, Aaron Katersky, David Caplan, Matt Foster, and Dominick Proto, Suspect Charged with Federal Crimes in Fort Lauderdale Airport Attack, ABC News (Jan. 7, 2017), http://abcn.ws/2jeir1O ............................................................................................ 18
NAFSA International Student Economic Value Tool, Nat’l Ass’n for Foreign Student Advisers, http://bit.ly/2aO3nYj (last visited Feb. 16, 2017).................................................................................................................... 6
Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement i-ii, 5-6 (May 2013), http://bit.ly/2lN80nu ............................................................................................... 17
NYC Travel & Tourism Visitation Statistics, N.Y.C. & Company, http://bit.ly/1ajQwlJ (last visited Feb. 14, 2017) ..................................................... 6
Noelle Phillips, As Trump’s Policies Stoke Fears, Denver’s Muslim Community Worries About Eroding Trust in Law Enforcement, Denver Post (Feb. 4, 2017), http://dpo.st/2kcdasJ ................................................. 17
v

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 7 of 32 PageID #: 2332
Madina Toure, NYPD Says Hate Crimes Have ‘Leveled Off’ After Spike Following Trump’s Election, Observer (Feb. 6, 2017), http://bit.ly/2lgNICk. .............................................................................................. 14
Kate Reilly, Racist Incidents Are Up Since Donald Trump’s Election, Time (Nov. 13, 2016), http://ti.me/2fKAbBq. ......................................................... 15
Our Immigrant Population Helps Power NYC Economy, N.Y.C. Comptroller (Jan. 11, 2017), http://on.nyc.gov/2lgiJJW. ........................................ 6
Population Facts, N.Y.C. Dep’t of Planning, http://on.nyc.gov/1ovRl4S (last visited Feb. 14, 2017) ....................................................................................... 2
Press Release, “Islam is Peace,” Says President: Remarks by the President at the Islamic Ctr. of Wash., D.C., White House Archives (Sept. 17, 2001), at http://bit.ly/1tqVCN7.............................................................. 20
Press Release, Statement on Prosecution of Hate Crimes, City of Phila. (Nov. 21, 2016), http://bit.ly/2kw0QYD ................................................................. 16
Ralph Ellis, Ashley Fantz, Faith Karimi, and Eliott C. McLaughlin, Orlando Shooting: 49 Killed, Shooter Pledged ISIS Allegiance, CNN (Jun. 13, 2016), http://cnn.it/1UcyaMC ................................................................. 18
San Bernardino Shooting Updates, L.A. Times (Dec. 16, 2015), http://lat.ms/1TwhA9t ............................................................................................ 18
Susan Cornwell, GOP Senators: Trump’s Immigration Order Could Help Terrorist Recruiting Efforts, Business Insider (Jan. 29, 2017), http://read.bi/2kyyuvX............................................................................................ 19
Ten Days After: Harassment and Intimidation in the Aftermath of the Election, Southern Poverty Law Center (Nov. 26, 2016), http://bit.ly/2gFmBjr............................................................................................... 14
Terrorist Plots Targeting New York City, N.Y.C. Police Dep’t, http://on.nyc.gov/1QDNXCn (last visited Feb. 14, 2017) ...................................... 19
Tina Orlando, Chicago Church Vandalized for the 6th Time This Year, Pastor Says (Oct. 3, 2016), NBC Chicago, http://bit.ly/2dpLCP8. ........................ 15
Tourism as an Economic Engine for Greater Philadelphia 2015 Visitation and Economic Impact Report, at 38, http://vstphl.ly/2kEgFHT (last visited Feb. 15, 2017). ........................................... 7
Response to Emergency Mot., http://bit.ly/2kcGS0K (last visited Feb. 2017)........................................................................................................................ 19
vi

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 8 of 32 PageID #: 2333
S. Rep. No. 89-748 (1965) .............................................................................................. 8 San Francisco DA Launches Hotline Amid Post-Election Hate Crimes,
CBS San Francisco Bay Area (Nov. 18, 2016), http://cbsloc.al/2kCvNW8 ....................................................................................... 16 San Francisco Travel Reports Record-Breaking Year for Tourism, San Francisco Travel (Mar. 29, 2016), http://bit.ly/2lMs61E......................................... 7 Sarah Maslin Nir, Finding Hate Crimes on the Rise, Leaders Condemn Vicious Acts, N.Y. Times (Dec. 5, 2016), http://nyti.ms/2ldH5EK. ....................... 14 Students Stranded Worldwide by Trump Order, NPR (Jan. 30, 2017), http://n.pr/2kHBza3.................................................................................................. 8 Tahman Bradley, Pilsen Church Tagged With Racist Graffiti (Oct. 4, 2016), http://bit.ly/2lc4HHn ................................................................................... 15 The Foreign-Born Population in the United States: 2003, U.S. Census Bureau (Aug. 2004), http://bit.ly/2ldssB4. ............................................................... 3 US Terrorist Attacks Fast Facts, CNN (Sept. 10, 2016), http://cnn.it/2lcX5Et ............................................................................................... 18
vii

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 9 of 32 PageID #: 2334
INTEREST OF AMICI CURIAE AND SUMMARY OF ARGUMENT Amici are the Cities of New York, NY; Albany, NY; Austin, TX; Buffalo, NY; Chicago, IL; Gary, IN; Ithaca, NY; Jersey City, NJ; Los Angeles, CA; Madison, WI; Minneapolis, MN; Nashville, TN; New Haven, CT; Oakland, CA; Paterson, NJ; Philadelphia, PA; Plainfield, NJ; Portland, OR; Providence, RI; Rochester, NY; Santa Monica, CA; Seattle, WA; Schenectady, NY; Somerville, MA; South Bend, IN; Syracuse, NY; Trenton, NJ; West Hollywood, CA; and Yonkers, NY; the City and County of San Francisco, CA; the Town of Carrboro, NC; the Boroughs of Haledon, NJ and Princeton, NJ; and the Village of Skokie, IL. Amici submit this brief in support of petitioners’ application for injunctive relief against enforcement of President Trump’s Executive Order 13769, titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” and commonly known as the “travel ban.” Amici demonstrate below that the broader public interest strongly favors the injunctive relief that petitioners seek. In the short time that the Executive Order was in effect, it stranded students, separated families, disrupted travel and commerce, spread fear among our residents and visitors, and projected a message of intolerance and distrust toward members of our communities.1 The Order would bar our residents from returning home, block their loved ones from visiting, and turn back refugees we would have welcomed into our communities—all based on animus
1 Another federal court has issued nationwide injunctive relief against certain of the Executive Order’s provisions. See Washington v. Trump, No. C17-0141JLR, 2017 U.S. Dist. LEXIS 16012 (W.D. Wash. Feb. 3, 2017), emergency stay denied, 2017 U.S. App. LEXIS 2369 (9th Cir. Feb. 9, 2017). Given the fluidity of events, entry of injunctive relief remains appropriate and necessary to prevent irreparable harm pending full merits review of the legality of the Executive Order by this Court.

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 10 of 32 PageID #: 2335
toward those individuals’ nationality and religion, and without affording them any process. These deprivations offend the values of our cities and would inflict deep wounds on our most basic institutions, including our families, businesses, educational and cultural organizations, and medical facilities. The resulting hardships and instability acutely burden local governments, which form the front line in providing critical services and maintaining public order and safety.
The xenophobia and religious discrimination endorsed by the Executive Order are particularly toxic for amici cities, whose social fabric depends on tolerance and inclusiveness. New York City, for example, has a population of over eight million people, exceeding that of forty states;2 three million of its residents were born abroad, and just under half speak a language other than English at home.3 The city is home to an estimated 27,000 individuals born in the seven countries explicitly targeted in the Executive Order and another 46,000 individuals whose ancestry traces to those nations.4 The city has also been a beacon for refugees: more than a thousand refugees have resettled here in the last five years5 and, according to city estimates, over 10,000 people who have fled violence or danger in their home countries live and work here. New York City also contains one
2 Population Facts, N.Y.C. Dep’t of Planning, http://on.nyc.gov/1ovRl4S (last visited Feb. 14, 2017). 3 American Community Survey 2011-2015, U.S. Census Bureau, http://bit.ly/2dmQmHD (last visited Feb. 14, 2017) (hereinafter, ACS Five-Year Data). 4 See id. 5 See Interactive Reporting, U.S. Dep’t of State Bureau of Population, Refugees, and Migrants Office of Admissions, Refugee Processing Center, http://bit.ly/2hTJ1Oi (last visited Feb. 16, 2017).
2

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 11 of 32 PageID #: 2336
of the country’s largest Muslim populations, including almost 1,000 Muslim police officers.6
Together, American cities are home to nearly half of the country’s foreignborn population and nearly 800,000 individuals born in the seven countries targeted by the Executive Order.7 The Order will affect cities both large and small. Los Angeles’ population of nearly four million, for example, includes almost one and a half million individuals born abroad and over 150,000 residents from the seven targeted countries.8 South Bend, Indiana’s population of just over 100,000 includes 40 families from Iraq, 70 families from Iran, 17 families from Syria, 20 families from Sudan, and 20 families from Yemen. About 4,500 of Skokie, Illinois’ residents were born in Iraq, Iran, or Syria. More broadly, Muslims make up a significant portion of the populations of amici cities, including about 70,000 in Los Angeles County; 40,000 in Philadelphia; and 250,000 in the San Francisco Bay Area.9 Amici cities also include tens of thousands of refugees.10
Although couched as a security measure, the Executive Order would interfere with, rather than aid, the efforts of amici cities to keep our populations safe. By
6 Laura Ly, Muslim NYPD Officer Threatened, Told ‘Go Back to Your Country,’ CNN (Dec. 6, 2016), http://cnn.it/2kPIdgx. 7 Alan Berube, These Communities Have a Lot at Stake in Trump’s Executive Order on Immigration, The Brookings Institution (Jan. 30, 2017), http://brook.gs/2jnBzit (last visited Feb. 14, 2017); The Foreign-Born Population in the United States: 2003, U.S. Census Bureau (Aug. 2004), http://bit.ly/2ldssB4. 8 ACS Five-Year Data, supra note 3. 9 See, e.g., Bay Area Muslims Face Ongoing Islamophobia, The San Francisco Foundation (May 15, 2013), http://bit.ly/2kWHMkw. 10 For example, Chicago has welcomed almost 7,000 refugees over the last five years; Syracuse, 5,000; Minneapolis, almost 4,500; and Philadelphia, over 3,000. See U.S. Dep’t of State Bureau of Population, Refugees, and Migrants Office of Admissions, supra note 5.
3

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 12 of 32 PageID #: 2337
placing the federal government’s imprimatur on expressions of fear and hatred towards adherents of a particular religion and persons of specific nationalities, the Order would impair our ability to combat discrimination and hate crimes; chill cooperation with law enforcement and make crime victims hesitant to reach out for help; and undermine our counterterrorism efforts by bolstering a false narrative that our nation is at war with Islam.
Amici cities are keenly aware of the need to safeguard our populaces against terrorist attacks. Cities bear the scars of many of the worst terrorist attacks on U.S. soil, including the attacks of September 11, 2001; the Boston Marathon bombing; and the Orlando nightclub shooting. And amici cities share the concern of scores of our nation’s most respected security and counterterrorism experts that spreading animus toward the members of a faith does nothing to make us safer. Our experience confirms that cities are safest when we adhere to our core values and when government fosters an environment in which everyone—regardless of their religious beliefs, nationality, or ethnicity—is respected and protected.
ARGUMENT THE PUBLIC INTEREST STRONGLY
FAVORS INJUNCTIVE RELIEF In determining whether to grant injunctive relief, courts consider (1) whether the moving party is likely to succeed on the merits; (2) whether that party is likely to suffer irreparable harm absent injunctive relief; (3) whether the issuance of injunctive relief will substantially injure other parties interested in the proceeding; and (4) where the public interest lies. See Nken v. Holder, 556 U.S. 418, 434 (2009);
4

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 13 of 32 PageID #: 2338
Kabenga v. Holder, 76 F. Supp. 3d 480, 482 (S.D.N.Y. 2015). Amici focus here on the fourth prong to demonstrate that the requested relief strongly serves the public interest and, in particular, the interests of our over 23 million combined residents in the continued vibrancy and safety of our cities.
The Executive Order’s disregard for the values that sustain daily life in our cities is unprecedented. No contemporary presidential order has sought to bar admission from several entire countries or to single out adherents of a particular religious faith as targets for exclusion. By barring the citizens of seven majorityMuslim nations from visiting our cities—and sending a message that Muslims and refugees are unwelcome—the Executive Order will deeply harm our cities’ economies, institutions, and communities and erode the core principles that our cities’ functioning depends on.
A. The Executive Order Will Damage the Economic Vitality and Social Fabric of Amici Cities. 1. The economies and cultures of the amici cities depend on openness to immigrants and visitors. Openness to the outside world is the basic currency of life in amici cities. Our
workforces are composed of individuals from all over the world, many of whom have immediate family members or other loved ones living abroad. Our educational and cultural institutions thrive on the free movement of students, scholars, teachers, and artists—and with them the free exchange of knowledge and ideas. The safety and cohesiveness of our families and communities, too, depend on inclusiveness and respect for others. By disrupting our residents’ family lives, undermining key
5

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 14 of 32 PageID #: 2339
segments of our economy and our cultural institutions, and damaging our standing across the globe, the Executive Order will harm virtually every aspect of city life.
New York City, like several of amici cities, is a frequent point of entry and a potent symbol of our origin story as a nation of immigrants.11 New York City’s openness in welcoming immigrants and visitors is the centerpiece of its economy and a common thread running through its residents’ daily lives. Nearly half of New York City’s workforce was born in another country; more than half of our city’s business owners are immigrants.12 About 60 million visitors per year, including 12.3 million international tourists, keep New York City’s retail and hospitality sectors humming, accounting for $42.2 billion in direct spending.13 The city’s businesses and financial institutions—the foundation for our nation’s financial markets—have connections to stakeholders in all corners of the globe. Its cultural and research institutions draw scholars, artists, musicians, and scientists from every region in the world. And close to 50,000 foreign students are enrolled in New York City’s universities, creating tens of thousands of jobs and an annual economic impact of over two billion dollars.14
11 See, e.g., L.B. Johnson, Remarks at the Signing of the Immigration Bill, Liberty Island, New York (Oct. 3, 1965), http://bit.ly/2kCuW7Z (remarking, in signing bill eliminating national-origin quotas and forbidding discrimination in issuance of visas, that America was “built by a nation of strangers” who hailed “[f]rom a hundred different places or more”). 12 Our Immigrant Population Helps Power NYC Economy, N.Y.C. Comptroller (Jan. 11, 2017), http://on.nyc.gov/2lgiJJW. 13 NYC Travel & Tourism Visitation Statistics, N.Y.C. & Company, http://bit.ly/1ajQwlJ (last visited Feb. 14, 2017). 14 International Students in NYC, N.Y.C. Eco. Dev. Corp. (Jan. 28, 2014), http://bit.ly/2knj5iO; see NAFSA International Student Economic Value Tool, Nat’l Ass’n for Foreign Student Advisers, http://bit.ly/2aO3nYj (last visited Feb. 16, 2017).
6

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 15 of 32 PageID #: 2340
Other amici cities have similarly deep international connections. Significant segments of amici cities’ workforces are foreign-born, including over 960,000 in Los Angeles; 184,100 in San Francisco; 108,000 in Philadelphia; and 51,000 in Portland.15 The Los Angeles metro region saw almost 50 million tourists in 2015, including 6.7 million international visitors, visitors who alone generated $6.3 billion in direct spending.16 San Francisco had more than 24 million tourists that same year, generating over $9 billion in spending and supporting over 76,500 jobs.17 About 1.2 million international tourists visited the Philadelphia metropolitan area in 2015, generating $800 million in direct spending.18 Chicago welcomed over 54 million visitors last year, including over 1.5 million from abroad, bringing in over $900 million in local tax revenue and $2.3 billion in hotel revenue.19 And across the nation, the number of international students in U.S. colleges and universities has surged, topping one million in the 2015-16 academic year.20 Amici’s medical
15 ACS Five-Year Data, supra note 3. 16 Los Angeles Sets New Tourism Record, Announces 45.5 Million Visitors in 2015, Discover Los Angeles (Jan. 19, 2016), http://bit.ly/2kngyFj. 17 San Francisco Travel Reports Record-Breaking Year for Tourism, San Francisco Travel (Mar. 29, 2016), http://bit.ly/2lMs61E. 18 Tourism as an Economic Engine for Greater Philadelphia 2015 Visitation and Economic Impact Report, at 38, http://vstphl.ly/2kEgFHT (last visited Feb. 15, 2017). 19 Mayor Emanuel and Choose Chicago Announce Record Tourism in 2016, Choose Chicago (Jan. 5, 2017), http://bit.ly/2lWrLsM. 20 Tara John, International Students in U.S. Colleges and Universities Top 1 Million, Time (Nov. 16, 2016), http://ti.me/2fT1KYg.
7

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 16 of 32 PageID #: 2341
facilities, local governments, and public universities, too, rely on personnel who come from other countries.21
The vitality of amici cities and the well-being of our inhabitants thus depend on the federal government’s willingness to allow open exchange with the outside world. The Ninth Circuit recently confirmed that the injuries caused by the Executive Order—including separating families, prohibiting travel by professors and students, and stranding residents abroad—impose significant and irreparable harm on states. See Washington v. Trump, No. 17-35105, 2017 U.S. App. LEXIS 2369, at *32-33 (9th Cir. Feb. 9, 2017). The harm to the cities within those states is more concentrated, and so even more strongly felt.
Congress has repeatedly recognized the profound damage done to society when families are kept apart. Family reunification has formed the cornerstone of America’s immigration policy for the last half century. See, e.g., S. Rep. No. 89-748, at 13 (1965) (emphasizing that keeping families together “is to be the foremost consideration” in immigration); H.R. Rep. No. 101-723(1), at 40 (1990) (finding that uniting permanent residents with their families serves the national interest). The
21 For example, the three major hospitals in Madison, Wisconsin, employ 104 foreign-born medical residents. Dozens of medical residents serving in New York City’s safety-net hospitals are affected by the Executive Order, including a second-year resident who was denied re-entry into the country after visiting family in Sudan. See Compl. in Intervention of the N.Y. State Att’y Gen., at ¶¶ 53-55, ECF No. 39. A doctoral student and employee at the City University of New York (CUNY) was diverted while returning from visiting family in Iran, and was able to re-enter the United States only after extensive advocacy on her behalf. Anya Kamenetz, Students Stranded Worldwide by Trump Order, NPR (Jan. 30, 2017), http://n.pr/2kHBza3. CUNY’s Chancellor estimates that the ban will apply to at about 120 students, as well as faculty and staff. Message from Chancellor Milliken, The City University of New York (Jan. 29, 2017), http://bit.ly/2khI6dQ. Los Angeles hospitals collectively rely upon more than one dozen physicians and researchers from the seven targeted countries; more than two dozen of the city’s municipal employees are also lawful permanent residents from those countries.
8

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 17 of 32 PageID #: 2342
Executive Order rejects this fundamental value, separating so many members of our communities from loved ones. In doing so, it enshrines into law a discriminatory worldview that threatens the ethic of inclusiveness on which our communities depend.
2. The harms wrought by the Executive Order are sharply magnified by the Order’s failure to furnish constitutionally required procedural protections.
The harms to amici cities, our residents, and their families are made all the worse by the federal government’s failure to afford individuals affected by the Executive Order the basic procedural protections guaranteed by the U.S. Constitution and federal statutes—protections that are essential to ensuring fundamental fairness in the administration of the laws. These hostile measures, the Mayor of New York City has warned, go “against our constitutional values” and send a message to Muslims that “for no reason whatsoever they could be detained or even sent to their home country even though they’re part of the life of the United States.”22
The Due Process Clause of the Fifth Amendment requires that government provide an individual with due process before that person is deprived of a liberty interest. See Kerry v. Din, 135 S. Ct. 2128, 2132 (2015). Procedural due process requirements apply to all persons physically present in the United States, see Zadvydas v. Davis, 533 U.S. 678, 693-94 (2001), and to certain lawful permanent residents seeking to reenter after traveling abroad, see Landon v. Plasencia, 459
22 Eric Bradner, NYC Mayor: Trump Travel Ban Sends a Horrible Message, CNN (Jan. 29, 2017), http://cnn.it/2lHmaKE.
9

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 18 of 32 PageID #: 2343
U.S. 21, 33 (1982), requiring that those individuals be provided notice and an opportunity to be heard before being denied admission or removed. Federal law, consistent with international treaties, further requires that a noncitizen at U.S. borders and ports of entry be given the opportunity to apply for asylum and for protection from return to a country where he or she will face torture or persecution. See, e.g., 8 U.S.C. §§ 1158(a)(1), 1225(b)(1)(A)(ii), 1231(b)(3)(A); 8 C.F.R. §§ 1208.5, 1208.16. Citizens or U.S. institutions with a relationship to an alien seeking admission may also possess a protected interest in ensuring the lawfulness of admission procedures. See Washington v. Trump, 2017 U.S. App. LEXIS 2369, at *26-27.
On its face, the Executive Order provides not a single procedural safeguard— none—for the individuals caught in its sweeping net. The order does not purport to provide residents and visa-holders with any opportunity to contest their exclusion, nor any assurance that, if they travel, they will not be denied re-entry without recourse.23 It also supplies no mechanism for individuals from the affected countries reaching ports of entry to make applications for asylum, as is required under federal law and our international covenants.
The Executive Order’s arbitrary and sudden denial of access to our cities for millions of people causes tangible harm to our economies and institutions. Our
23 Although the federal government disputes that the Executive Order places restrictions on current lawful permanent residents (see Def. Mem. of Law in Supp. of Mot. to Dismiss, at 4, ECF No. 66 (citing a memorandum of White House counsel)), the Ninth Circuit has rejected that contention, finding no basis in law to conclude that a statement of the White House Counsel can alter the scope of an executive order or control the order’s enforcement, see Washington v. Trump, 2017 U.S. App. LEXIS 2369, at *25-*26.
10

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 19 of 32 PageID #: 2344
tourism industry, civic and educational institutions, and technology and healthcare sectors are organized around the expectation that visitors, students, professors, and workers will be able to come and go. The Order’s unexpected interruption of that vital flow, without affording individuals notice and an opportunity to be heard, is thus all the more disruptive to those sectors of our cities. And the chaos, fear, and instability caused by detentions, removals, and visa revocations is exacerbated by the arbitrary and haphazard method by which government has acted. City officials know this firsthand, having worked with advocacy organizations, volunteers, and others at airports across the country to help affected families in their attempts to obtain information about the many individuals detained because of the Executive Order.
Stripping the procedural rights of particular groups harms the civil rights of all, by weakening key links in the chain of legal protections that hold our democracy together. And the violation of procedural norms here causes particular offense to the character of amici cities, which is defined by values of openness, diversity, and inclusion, and depends on our ability to welcome visitors, immigrants, and refugees. Barring refugees, residents, and visa holders because of their national origin and faith and without procedural protections—including at JFK Airport, only a short distance from Ellis Island—not only violates basic constitutional tenets, but also impairs the fundamental values that animate and support city life.
11

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 20 of 32 PageID #: 2345
B. The Executive Order Sends a Message of Fear and Animus that Will Harm Amici’s Efforts to Keep Our Cities Safe. The Executive Order’s measures will not only disrupt the economies and
communities of the amici cities, but also will hamper our ability to police our cities, protect public safety, and maintain public order—key responsibilities of local government. The Executive Order’s adoption of a national policy that discriminates based on religion and national origin will make it more difficult for amici cities to eliminate discrimination and hate crimes within our own confines. The atmosphere of fear and intimidation created by the federal government’s actions also threatens to chill cooperation with local law enforcement among immigrants and minorities, including by making victims more hesitant to report crimes. And although the Order was issued as a purported national-security measure, its restrictions do not support the efforts of amici cities to keep our populations safe from terrorism. Instead, as many of our nation’s most respected leaders and security experts have cautioned, the Order can only undermine efforts to protect our cities from terrorism.
1. Enshrining religious and national-origin discrimination in federal policy clashes with cities’ attempts to combat discrimination and hate crimes.
The federal government’s endorsement of discriminatory views not only rows against the overwhelming tide of federal and constitutional law, but also grossly undercuts amici’s own efforts to protect our populaces from discrimination and violence. The mandate to safeguard freedom of religion and protect against discrimination is layered strand by strand throughout our nation’s laws. Most relevant here, the Establishment Clause of the First Amendment of the U.S.
12

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 21 of 32 PageID #: 2346
Constitution prohibits the federal government from preferring one set of religious beliefs over another. See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). The equal-protection component of the Fifth Amendment’s Due Process Clause furnishes an additional layer of protection, prohibiting government from acting with an invidious discriminatory purpose predicated upon religion or national origin. See Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009). And Congress enshrined the same principles in the nation’s immigration laws, prohibiting discrimination on the basis of race, sex, nationality, place of birth, or place of residence in the issuance of visas. See 8 U.S.C. § 1152(a)(1)(A).
The Executive Order’s restrictions violate these prime directives in a host of ways, and the President’s own public statements reveal that their purpose is to exclude adherents of Islam from the country. See Compl. in Intervention of the N.Y. State Att’y Gen., at ¶¶ 9-12, ECF No. 39; Washington v. Trump, 2017 U.S. App. LEXIS 2369, at *30-*31 (discussing the President’s statements about implementing a “ban” of Muslims and the evidence suggesting that the Executive Order is intended to implement that ban). Those statements constitute competent evidence of the Executive Order’s discriminatory intent. See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-68 (1977) (explaining that an enactment’s discriminatory purpose may be inferred from circumstantial evidence, including the historical background of a governmental decision and statements by lawmakers).
13

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 22 of 32 PageID #: 2347
Amici cities have been leaders in combating discrimination and in protecting our populations from hate crimes. As a supplement to state and federal law, many amici cities have passed local laws extending additional protections against discrimination or bias-motivated crimes.24 But the harmful stereotypes and prejudices embedded in the Executive Order threaten amici cities’ efforts to fight discrimination within our communities. Amici cities have already witnessed the serious consequences of the xenophobic messages conveyed by the President’s election platform, including promises to build a wall along the Mexican border and a “shutdown” of Muslim immigration.25
Hate crimes exploded after last November’s election. According to the Southern Poverty Law Center, there were at least 867 incidents of bias-related harassment or intimidation across the nation in just the 10 days following the election.26 New York City alone saw hate crimes more than double in the weeks following the election, compared to the same period last year.27 Many of these incidents were directed at immigrants and religious minorities, as well as women, gays, and lesbians. The crimes occurred in schools, in workplaces, and in public
24 See, e.g., Chi. Mun. Code §§ 8-4-020, 8-4-085; L.A. Admin. Code §§ 4.400, 10.8, and 10.13; L.A. Charter §§ 104(i), 1024; Madison Gen. Ordinance § 39.03; N.Y.C. Admin. Code §§ 8-101 to 8-907; Phila. Code §§ 9-1100 to 9-1130; Providence Code of Ord. 2014, ch. 2014-33, § 1, 8-8-14; Santa Monica Mun. Code § 4.48.030; S.F. Admin. Code §§ 12B, 12C; S.F. Police Code Art. 33, §§ 3301-3313; South Bend, Ind. Mun. Code § 2-127; W. Hollywood Mun. Code Ch. 9.32. 25 Madina Toure, NYPD Says Hate Crimes Have ‘Leveled Off’ After Spike Following Trump’s Election, Observer (Feb. 6, 2017), http://bit.ly/2lgNICk. 26 Ten Days After: Harassment and Intimidation in the Aftermath of the Election, Southern Poverty Law Center (Nov. 26, 2016), http://bit.ly/2gFmBjr. 27 Michael Scotto, NYPD Reports a Spike in Hate Crimes Around the City Since Election Day, Time Warner Cable News (Dec. 5, 2016), http://bit.ly/2h27SPM; Sarah Maslin Nir, Finding Hate Crimes on the Rise, Leaders Condemn Vicious Acts, N.Y. Times (Dec. 5, 2016), http://nyti.ms/2ldH5EK.
14

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 23 of 32 PageID #: 2348
spaces, and took the form of graffiti, verbal attacks, and even physical violence.28
The perpetrators of some of these incidents expressly invoked the President’s
name:29
• In New York City, a man was charged with hate crimes for kicking an airline worker wearing a hijab, telling her “Trump is here now” and “he will get rid of all of you.”30 Separately, in Brooklyn, two swastikas were spray-painted on playground property, with the words “Go Trump.”31
• In Philadelphia, African American students at the University of Pennsylvania received a racist text that included lynching threats against them, sent by the username “Daddy Trump.”32
• In Chicago, starting from before the election, a church with a predominantly immigrant congregation was the target of recurring acts of vandalism. Swastikas and messages such as “Rape N Kill Mexico,” “KKK,” and “Trump Rules” were scrawled on the church’s doors and walls on repeated occasions.33
Amici cities swiftly responded to combat this surge in hate crimes, publicly
denouncing these episodes, implementing initiatives to prevent hate crimes, and
reaffirming their commitment to inclusion.34 In Philadelphia, for example, the
District Attorney’s Office established a new task force to “vigorously prosecute” hate
28 Southern Poverty Law Center, supra note 26. 29 Southern Poverty Law Center, supra note 26. 30 Christopher Mele, Man Kicked J.F.K. Airport Worker Wearing Hijab, Prosecutor Says, N.Y. Times (Jan. 26, 2017), http://nyti.ms/2jX1Otp. 31 Nir, supra note 27. 32 Kate Reilly, Racist Incidents Are Up Since Donald Trump’s Election, Time (Nov. 13, 2016), http://ti.me/2fKAbBq. 33 Tahman Bradley, Pilsen Church Tagged With Racist Graffiti, WGNtv.com (Oct. 4, 2016), http://bit.ly/2lc4HHn; Tina Orlando, Chicago Church Vandalized for the 6th Time This Year, Pastor Says (Oct. 3, 2016), NBC Chicago, http://bit.ly/2dpLCP8. 34 Nir, supra note 27.
15

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 24 of 32 PageID #: 2349
crimes.35 And many cities recently launched hotlines specifically for hate-crime victims.36
The Executive Order threatens to further inflame the xenophobic attitudes that have fueled this recent rise in hate crimes, and to circumvent amici cities’ efforts to protect their minority communities. The Order sends a distinct message that the Muslims in our communities “are outsiders, not full members of the political community,” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310 (2000), and that they have been singled out for suspicion and mistreatment. The Executive’s ratification of these views profoundly undermines local efforts to oppose discrimination and prevent bias-motivated crime.
2. Creating an atmosphere of fear and intimidation chills cooperation with local law enforcement and makes victims fearful to report crimes.
The Executive Order also endangers amici cities’ residents by diminishing the willingness of members of immigrant communities to cooperate with law enforcement. Studies have shown that immigrants may avoid reaching out to law enforcement when they are the victim of or witness to a crime, out of fear that they may be questioned about their own immigration status or the status of a family
35 Press Release, Statement on Prosecution of Hate Crimes, City of Phila. (Nov. 21, 2016), http://bit.ly/2kw0QYD; Leanna Garfield, 6 Major U.S. Cities Are Ramping Up Police Efforts to Fight a Surge of Hate Crimes Following Trump’s Win, Business Insider (Nov. 30, 2016), http://read.bi/2ldRbW9. 36 Garfield, supra note 35; Mayor Elorza Announces City Hate Crime Hotline, Office of Mayor Jorge O. Elora (Feb. 9, 2017), http://bit.ly/2kvRcFo; San Francisco DA Launches Hotline Amid PostElection Hate Crimes, CBS San Francisco Bay Area (Nov. 18, 2016), http://cbsloc.al/2kCvNW8.
16

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 25 of 32 PageID #: 2350
member or friend.37 When the individuals and groups targeted by the Executive Order are the victims or witnesses of crimes, they will similarly be more reluctant to come forward. This chilling effect imperils both crime victims and the wider community: when a person fails to report a crime or is unwilling to cooperate with a police investigation, the perpetrators of those crimes may remain at large.
Knowing from direct experience that the public-safety costs stemming from these fears are real, amici cities share the deep concern that the Executive Order will undo longstanding efforts to foster trust with immigrant communities in general, and Muslim communities in particular. Following the President’s election, amici cities have intensified their outreach efforts to Muslim communities, stressing the importance of maintaining these relationships.38 But by cementing already existing fears that the federal government intends to target individuals or their loved ones, the Executive Order will impede the ability of their police departments to protect their residents, to the substantial detriment of the public at large.
3. The Executive Order’s broad-brush approach destabilizes security and counterterrorism efforts, rather than making our populations safer.
The Executive Order’s underlying message of animus and fear also hampers amici cities’ counterterrorism efforts. As the Mayor of Los Angeles has cautioned:
37 See, e.g., Nik Theodore, Insecure Communities: Latino Perceptions of Police Involvement in Immigration Enforcement i-ii, 5-6 (May 2013), http://bit.ly/2lN80nu (presenting findings from survey of approximately 2,000 Latinos indicating a heightened fear of law enforcement and its impact on crime reporting by immigrants and U.S.-born Latinos). 38 Noelle Phillips, As Trump’s Policies Stoke Fears, Denver’s Muslim Community Worries About Eroding Trust in Law Enforcement, Denver Post (Feb. 4, 2017), http://dpo.st/2kcdasJ; John R. Ellement, Police ‘Need to Build Trust’ with Immigrant Community, Evans Says, Boston Globe (Jan. 31, 2017), http://bit.ly/2lgwtEu.
17

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 26 of 32 PageID #: 2351
“[B]anning people based on religion or country of origin is not only un-American, it is dangerously counter to our national security. There are effective, rational, humane and constitutional strategies to keep Americans safe—and that is what we expect the president to offer the American people.”39
Our nation’s cities are acutely mindful of the need for continued vigilance to protect our residents against future threats. Cities have borne many of the starkest wounds of terrorist attacks on U.S. soil: three killed and 264 injured in the Boston marathon attack; five killed and at least six injured at the Fort Lauderdale airport; six killed and over a thousand injured during the first World Trade Center bombing; 14 killed and 22 injured in San Bernardino; 49 killed and 53 wounded in the Orlando nightclub shooting; 168 killed and over 650 injured in the Oklahoma City bombing; and 2,753 people killed and untold thousands injured in New York City on September 11, 2001.40
Because cities have been a focus for terrorist attacks, many of amici cities play a vital and proactive role in preventing and responding to terrorism. New York City, for example, has partnered with federal law enforcement and government agencies across the world to thwart dozens of credible threats to its residents and
39 L.A. Mayor and Other City Leaders Denounce President Donald Trump’s Travel Ban, KCET (Feb. 1, 2017), http://bit.ly/2kPZOFm. 40 See, e.g., Brad Plumer, Nine Facts About Terrorism in the United States Since 9/11, The Wash. Post (Sept. 11, 2013), http://wapo.st/2ld57NH; US Terrorist Attacks Fast Facts, CNN (Sept. 10, 2016), http://cnn.it/2lcX5Et; Morgan Winsor, Aaron Katersky, David Caplan, Matt Foster, and Dominick Proto, Suspect Charged with Federal Crimes in Fort Lauderdale Airport Attack, ABC News (Jan. 7, 2017), http://abcn.ws/2jeir1O; San Bernardino Shooting Updates, L.A. Times (Dec. 16, 2015), http://lat.ms/1TwhA9t; Ralph Ellis, Ashley Fantz, Faith Karimi, and Eliott C. McLaughlin, Orlando Shooting: 49 Killed, Shooter Pledged ISIS Allegiance, CNN (Jun. 13, 2016), http://cnn.it/1UcyaMC.
18

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 27 of 32 PageID #: 2352
visitors since 9/11.41 The Philadelphia Police Department’s Major Incident Response Team works closely with federal, state, and other local agencies to act as the city’s first line of defense in a major disaster or terrorist-related event. And Los Angeles has a nationally recognized counterterrorism unit and owns and operates LAX airport, which handled over 80 million travelers last year.42
National-security leaders and experts from across the political spectrum have warned that the broad brush of the Executive Order destabilizes security and counterterrorism efforts, rather than making our populace safer. Former Secretaries of State Madeline K. Albright and John Kerry, former Homeland Security Secretary Janet A. Napolitano, former CIA Director Leon E. Panetta, and several other former leaders of the intelligence community have cautioned that the Order “ultimately undermines the national security of the United States” by feeding into the pernicious narrative that the U.S. is at war with Islam.43 Senator John McCain, chairman of the Senate Committee on Armed Services, and Senator Lindsey Graham expressed similarly grave concerns, urging that the Order “will become a self-inflicted wound in the fight against terrorism.”44 The director of national intelligence under President Obama, James Clapper, told CNN that he
41 Terrorist Plots Targeting New York City, N.Y.C. Police Dep’t, http://on.nyc.gov/1QDNXCn (last visited Feb. 14, 2017). 42 LAPD Named Best Counterterrorism Squad, Homeland Security News Wire (Nov. 29, 2011), http://bit.ly/2l5r4xZ; Counter-Terrorism and Special Operations Bureau, L.A. Police Dep’t, http://bit.ly/2lN9kXm (last visited Feb. 14, 2017); Los Angeles World Airports, http://bit.ly/2lMJvY2 (last visited Feb. 14, 2017). 43 Response to Emergency Mot., http://bit.ly/2kcGS0K (last visited Feb. 2017). 44 Susan Cornwell, GOP Senators: Trump’s Immigration Order Could Help Terrorist Recruiting Efforts, Business Insider (Jan. 29, 2017), http://read.bi/2kyyuvX.
19

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 28 of 32 PageID #: 2353
worries about the Order’s effect on the nation’s “reliable partners” and that the Order will function as a recruiting tool for ISIS.45 And over 100 former government, military, and intelligence officials who served in the George W. Bush and Obama administrations recently wrote to the President asking him to rescind the Order, warning that it would do lasting damage to counterterrorism and national-security efforts.46
Although the Executive Order invokes the terrorist attacks of September 11, 2001, it does not advance the interests of New York City and other cities that have suffered from terrorism. Amici cities have learned through experience the importance of maintaining our unity and preserving our values in the face of external threats and adversity. After the September 11 attacks, President Bush reminded the country that those who would seek to intimidate our nation’s millions of Muslim citizens “represent the worst of humankind” and do not represent “the America I know.”47 New York City’s then-Mayor, addressing the United Nations, reiterated that to prevail over terrorism, New Yorkers must “not engage in any form of group blame or group hatred.”48 Amici cities agree that our collective safety and well-being is best served by adhering to our core American values of equality, religious freedom, and respect for individual rights. The recent Executive Order of
45 Jamie Crawford, Former Spy Chief Calls Trump’s Travel Ban ‘Recruiting Tool for Extremists,’ CNN (Feb. 9, 2017), http://cnn.it/2lHBk2J. 46 Ltr. from Madeline K. Albright, et al., to Hon. John F. Kelly, et al. (Jan. 30, 2017), available at http://politi.co/2klc2FU. 47 Press Release, “Islam is Peace,” Says President: Remarks by the President at the Islamic Ctr. of Wash., D.C., White House Archives (Sept. 17, 2001), at http://bit.ly/1tqVCN7. 48 Mayor Giuliani’s Address to the United Nations General Assembly on Combatting Terrorism, Archives of Rudolph W. Giuliani (Oct. 1, 2001), http://on.nyc.gov/2lN7PIA.
20

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 29 of 32 PageID #: 2354
the current Administration stands opposed to those values and makes us less safe, not more so.
CONCLUSION For the reasons set forth in this brief, as well as those set forth by petitioners and their other supporting amici, the district court should grant petitioners’ motion for injunctive relief. Dated: February 16, 2017
Respectfully submitted, ZACHARY W. CARTER Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 (212) 356-2500
By: ____/s/ Susan P. Greenberg__________ SUSAN P. GREENBERG Senior Counsel sgreenbe@law.nyc.gov (212) 356-2484 RICHARD DEARING CLAUDE S. PLATTON KATHY CHANG PARK of Counsel
(Counsel listing continues on next page)
21

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 30 of 32 PageID #: 2355

WILLIAM G. KELLY, JR. Interim Corporation Counsel Department of Law City Hall Albany, NY 12207 Attorney for City of Albany
ANNE L. MORGAN City Attorney, City of Austin PO Box 1546 Austin, TX 78767 Attorney for the City of Austin
TIMOTHY A. BALL Corporation Counsel 65 Niagara Square Buffalo, NY 14202 Attorney for Byron W. Brown, Mayor of Buffalo
EDWARD N. SISKEL Acting Corporation Counsel 600 City Hall 121 N. LaSalle St. Chicago, IL 60601 Attorney for the City of Chicago
GREGORY L. THOMAS City Attorney 401 Broadway, Suite 101 Gary, IN 46402 Attorney for the City of Gary, Indiana
AARON O. LAVINE City Attorney 108 E. Green St. Ithaca, NY 14850 Attorney for Svante L. Myrick, Mayor of Ithaca

JEREMY FARRELL Corporation Counsel 280 Grove Street Jersey City, NJ 07302 Attorney for City of Jersey City
MICHAEL N. FEUER City Attorney 200 N. Main Street Los Angeles, CA 90012 Attorney for the City of Los Angeles
MICHAEL P. MAY City Attorney 210 Martin Luther King Jr. Blvd. Room 401 Madison, WI 53703 Attorney for the City of Madison
SUSAN L. SEGAL Minneapolis City Attorney 350 S. 5th Street, Room 210 Minneapolis, MN 55415 Attorney for the City of Minneapolis
JON COOPER Director of Law P.O. Box 196300 Nashville, TN 37219 Attorney for the Mayor Megan Barry and the Metropolitan Government of Nashville and Davidson County
JOHN ROSE, JR. Corporation Counsel 165 Church Street/4th Floor New Haven, CT 06510 Attorney for Toni N. Harp Mayor of New Haven

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 31 of 32 PageID #: 2356

BARBARA J. PARKER Oakland City Attorney 1 Frank Ogawa Plaza, Sixth Floor Oakland, CA 94612 Attorney for Libby Schaaf, Mayor of Oakland
DOMENICK STAMPONE Corporation Counsel 155 Market Street Historic City Hall Paterson, NJ 07501 Attorney for Jose “joey” Torres, Mayor of Paterson
SOZI PEDRO TULANTE City Solicitor City of Philadelphia Law Department 1515 Arch Street, 17th Floor Philadelphia, PA 19102 Attorney for the City of Philadelphia
DAVID L. MINCHELLO Corporation Counsel 515 Watchung Avenue Plainfield, NJ 07060 Attorney for Adrian O. Mapp, Mayor of Plainfield
TRACY REEVE City Attorney Office of City Attorney 1221 SW 4th Avenue, Suite 430 Portland, OR 97204 Attorney for the City of Portland
JEFFERY DANA City Solicitor City of Providence 444 Westminster Street, Suite 220 Providence, RI 02903 Attorney for City of Providence, Mayor Jorge O. Elorza

BRIAN F. CURRAN Corporation Counsel City of Rochester 30 Church St., Room 400A Rochester NY 14614 Attorney for City of Rochester
JOSEPH LAWRENCE Interim City Attorney City of Santa Monica 1685 Main Street, Suite 310 Santa Monica, CA. 9040 Attorney for City of Santa Monica
PETER S. HOLMES Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 Attorney for the City of Seattle
CARL G. FALOTICO Corporation Counsel 105 Jay Street Schenectady, NY 12305 Attorney for Gary R. McCarthy Mayor of Schenectady
FRANCIS X. WRIGHT, JR. City Solicitor 93 Highland Avenue Somerville, MA 02143 Attorney for Joseph Curtatone, Mayor of Somerville
CRISTAL BRISCO Corporation Counsel 227 W. Jefferson Blvd. Suite 1200S South Bend, IN 46601 Attorney for Pete Buttigieg, Mayor of South Bend

23

Case 1:17-cv-00480-CBA Document 160 Filed 02/16/17 Page 32 of 32 PageID #: 2357

JOSEPH E. FAHEY Corporation Counsel City Hall 233 East Washington Street Syracuse, NY 13202 Attorney for Stephanie Miner Mayor of Syracuse
WALTER D. DENSON, ESQ. City of Trenton Department of Law 319 East State Street Trenton, NJ 08608 Acting Director of Law for the City of Trenton
MICHAEL JENKINS City Attorney City of West Hollywood Jenkins & Hogin LLP 1230 Rosecrans Avenue, Ste 110 Manhattan Beach, CA 90266 Attorney for the City of West Hollywood
MICHAEL V. CURTI, ESQ. Corporation Counsel 40 South Broadway, Suite 300 Yonkers, NY 10701 Attorney for Mike Spano, Mayor of Yonkers, New York
DENNIS J. HERRERA San Francisco City Attorney City Attorney’s Office City Hall Room 234 One Dr. Carlton B. Goodlett Pl. San Francisco, CA 94102 Attorney for City and County of San Francisco

G. NICHOLAS (NICK) HERMAN General Counsel The Brough Law Firm, PLLC 1526 E. Franklin St., Suite 200 Chapel Hill, NC 27514 Attorney for the Town of Carrboro
ANDREW P. ODDO 510 Belmont Avenue Haledon, NJ 07508 Attorney for Domenick Stampone, Mayor of Borough of Haledon
TRISHKA W. CECIL Municipal Attorney Mason, Griffin, & Pierson 101 Poor Farm Rd, Princeton, NJ 08540 Attorney for Liz Lempert, Mayor of Princeton
MICHAEL M. LORGE Corporation Counsel 5127 Oakton Street Skokie, IL 60077 Attorney for Village of Skokie

24

 </s> Case 1:17-cv-00480-CBA Document 94 Filed 02/15/17 Page 1 of 2 PageID #: 1049
THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE ATTORNEY GENERAL
ONE ASHBURTON PLACE BOSTON, MASSACHUSETTS 02108
(617) 727-2200 (617) 727-4765 TTY www.mass.gov/ago
February 15, 2017
VIA ECF
Hon. Carol Bagley Amon Senior Judge United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201
Re: Darweesh v. Trump, Case No. 1:17-cv-00480-CBA
Dear Judge Amon:
I write to seek the Court’s permission to file an amicus brief on behalf of the Commonwealth of Massachusetts and a group of States in support of the plaintiffs’ motion for injunctive relief in this case. Alternatively, pursuant to Rule 3(A) of this Court’s Individual Rules, we respectfully request a pre-motion conference with the Court for leave to file such a brief.
“District Courts have broad discretion in deciding whether to accept amicus briefs.” Jamaica Hosp. Med. Center, Inc. v. United Health Group, Inc., 584 F. Supp. 2d 489, 497 (E.D.N.Y. 2008) (quoting Concerned Area Residents for Environ. v. Southview Farm, 834 F. Supp. 1410, 1413 (W.D.N.Y. 1993)). The Court may grant amici leave to file their brief if the information they offer is “timely and useful.” Andersen v. Leavitt, 2007 WL 234672, at *2 (E.D.N.Y. Aug. 13, 2007) (quoting Long v. Coast Resorts, Inc., 49 F. Supp. 2d 1177, 1178 (D. Nev. 1999)). Here, the proposed amici States meet those requirements.
The proposed amici States are significantly impacted by the Executive Order at issue in this litigation. Individuals covered by the Executive Order include, among others, persons who have previously been granted valid U.S. visas that otherwise entitle them to work, study, and travel within the proposed amici States. In addition to harming such individuals, the Executive Order inhibits the free exchange of information, ideas, and talent between the seven designated countries and the proposed amici States, including at the States’ many educational institutions; harms the States’ life sciences, technology, health care, finance, and other industries, as well as innumerable other small and large businesses throughout the States; and inflicts economic harm

Case 1:17-cv-00480-CBA Document 94 Filed 02/15/17 Page 2 of 2 PageID #: 1050
on the States themselves through both increased costs and immediately diminished tax revenues. Our brief, if permitted, would describe these harms and offer the Court a more complete picture of the impact of the Executive Order across various economic sectors and communities.
Undersigned counsel has conferred with counsel for the parties in this matter. Plaintiffs and intervenor-plaintiff consent to the proposed amici States’ request; defendants take no position on the request. For the foregoing reasons, we respectfully request the Court’s permission to file a brief of amici curiae. In the alternative, we request a pre-motion conference with the Court for leave to file such a brief.
Respectfully submitted,
/s/ Jonathan B. Miller
Jonathan B. Miller Assistant Attorney General Commonwealth of Massachusetts
Cc: All Counsel of Record (via ECF)

 </s> Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 1 of 18 PageID #: 196

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------------X HAMEED KHALID DARWEESH and, HAIDER SAMEER ABDULKHALEQ ALSHAWI,
on behalf of themselves and others similarly situated,
Petitioners,
--against—
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and JAMES T. MADDEN, New York Field Director, CBP,
Respondents. ------------------------------------------------------------------X

Case No. 1:17-cv-00480

MEMORANDUM OF LAW IN SUPPORT OF THE NEW YORK ATTORNEY GENERAL’S MOTION TO INTERVENE IN THE COMBINED PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 2 of 18 PageID #: 197
TABLE OF CONTENTS PRELIMINARY STATEMENT........................................................................................1 ARGUMENT .....................................................................................................................2
I. The NYAG Should Be Permitted to Intervene as of Right ..................................2 A. The NYAG’s Motion is Timely ..............................................................3 B. The NYAG Has a Substantial Interest in the Subject Matter of This Action .........................................................................................3 C. Disposition of the Orginial Action May Impair the NYAG’s Ability to Protect The State’s Interests ..................................................7 D. The Original Parties Cannot Adequately Protect the Interests of the State ..............................................................................................9
II. Alternatively, the NYAG Should Be Allowed to Intervene by Permission........9

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 3 of 18 PageID #: 198
TABLE OF AUTHORITIES
Page(s)
CASES
AB v. Rhinebeck Cent. Sch. Dist., 224 F.R.D. 144, 157 (S.D.N.Y. 2004) ................................... 8-9
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982)...................................................................................................................7
Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171 (2d Cir. 2001).......................................................................................................9
Chao v. Local 1104 Commc’ns Workers, 2007 WL 1231616 (E.D.N.Y. Apr. 26, 2007) ...........................................................................9
Commack Self–Serv. Kosher Meats, Inc. v. Rubin, 170 F.R.D. 93 (E.D.N.Y. 1996) .................................................................................................3
Common Cause New York v. Board of Elections, No. 16 Civ. 6122 ........................................................................................................................2
Friends of the E. Hampton Airport, Inc. v. FAA, No. 15-CV-0441(JS)(ARL), 2016 U.S. Dist. LEXIS 25541 (E.D.N.Y. Feb. 29, 2016)...........................................................................................................3
H.L. Hayden Co. v. Siemens Med. Sys. Inc., 797 F.2d 85 (2d Cir. 1986).................................................................................................10, 12
Home Ins. Co. v. Liberty Mut. Ins. Co., No. 87 Civ. 0675 (SWK), 1990 WL 188925 (S.D.N.Y. 1990)............................................................................................7
Kaliski v. Bacot, 320 F.3d 291 (2d Cir. 2003).....................................................................................................10
New York v. 11 Cornwell Co., 695 F.2d 34 (2d Cir. 1982) ........................................................................................................7
New York v. Mid-Hudson Medical Group, 877 F. Supp. 143 (S.D.N.Y. 1995) ...........................................................................................7
New York v. Walkill, No. 01-Civ-0364 (CM), 2001 U.S. Dist. LEXIS 13364 (S.D.N.Y. Mar. 16, 2001) ..........................................................................................................7

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 4 of 18 PageID #: 199
Sackman v. Liggett Group, No. 93 CV 4166 (ADS), 167 F.R.D. 6 (E.D.N.Y. 1996).........................................................11
Trbovich v. United Mine Workers, 404 U.S. 528 (1972)...................................................................................................................9
U.S. Postal Serv. v. Brennan, 579 F.2d 188 (2d Cir. 1978).....................................................................................................10
U.S. v. Pitney Bowes, Inc., 25 F.3d 66 (2d Cir. 1994).....................................................................................................3, 10
United States v. City of New York, 07-CV-2067, 2012 WL 314353 (E.D.N.Y. Feb. 1, 2012) .................................................10, 11
Wells Fargo Bank, N.A. v. Levin, No. 15-2773 (LDW) (AYS), 2016 U.S. Dist. LEXIS 74410, (E.D.N.Y. June 6, 2016), report and recomm. adopted by 2016 U.S. Dist. LEXIS 100508 (E.D.N.Y. July 22, 2016), .....................................................11
FEDERAL RULE OF CIVIL PROCEDURE
24(a)(2) .................................................................................................................................. passim 24(b)(1)(B) .................................................................................................................................9, 10 24(b)(2) ..........................................................................................................................................10

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 5 of 18 PageID #: 200
New York Attorney General Eric T. Schneiderman, on behalf of the People of the State of New York (“NYAG”), respectfully submits this Memorandum of Law in support of the NYAG’s Motion to Intervene in this combined Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief. Intervention as of right is warranted here because the NYAG satisfies the four factors set out in Federal Rule of Civil Procedure 24(a)(2). Alternatively, the NYAG should be granted permission to intervene because – in addition to these factors – intervention here would not unduly delay or prejudice the adjudication of the rights of Petitioners or Respondents, and the Proposed Complaint in Intervention (“Proposed Complaint”) , attached as Exhibit A, shares common questions of law and fact with the original Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injuctive Relief (“Petition”) filed in this action.
PRELIMINARY STATEMENT On January 27, 2017, President Donald Trump issued an executive order – entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“Executive Order”) which set off a chaotic series of events that has infringed the civil rights of many New York residents and continues to threaten the public health and the economic, social, and cultural welfare of New York State. As set forth in the Proposed Complaint, beginning on the night of January 27, 2017, federal agents began to detain and/or refoul individuals arriving into U.S. airports – including John F. Kennedy Airport (“JFK”) in New York City – who are nationals of the seven countries designated by the Executive Order. Still more nationals of those seven countries have been, and continue to be, unable to travel to New York State, where they live, work, study, or have family. Implementation of the Executive Order is disrupting the lives and violating the civil rights of many New York residents. It also harms interests particular to New York State. The Executive

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 6 of 18 PageID #: 201
Order threatens numerous sectors of the New York State economy, including finance and technology, that rely heavily upon the talents and contributions of immigrants—including those who are nationals of the seven countries designated by the Executive Order. The Executive Order likewise harms New York State’s academic institutions, which host some of the highest concentrations of foreign students of any in the nation; and in doing so, the Executive Order further damages the New York economy. In addition, the Executive Order harms the public health of New York State by, e.g., threatening the continuous employment of doctors supplying medical care at hospitals in some of the most impoverished neighborhoods across the state. Finally, as courts have frequently observed, the State of New York has a quasi-sovereign interest in protecting civil rights generally within its jurisdiction.
The NYAG requests that the Court allow intervention in the subject action to vindicate both the rights of affected New York State residents and the quasi-sovereign interests of the State, which are unique to the State and which may not be adequately represented by the Petitioners.
ARGUMENT I. The NYAG Should Be Permitted to Intervene as of Right.
Federal Rule of Civil Procedure 24(a)(2) provides that a court must grant intervention to anyone who makes a timely motion, asserts an interest relating to the subject of the action, and is situated such that disposition of the action without the movant “may as a practical matter impair or impede the movant’s ability to protect its interest”—“unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2); see, e.g., Common Cause New York v. Board of Elections, No. 16 Civ. 6122, dkt. #28 (E.D.N.Y. Jan. 30, 2017) (Garaufis, J.) (granting NYAG motion to intervene). As discussed infra, the NYAG is entitled to intervene as of right in this action, having satisfied all four requirements under Rule 24(a)(2).
-2-

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 7 of 18 PageID #: 202 -3-

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 8 of 18 PageID #: 203
A. The NYAG’s Motion is Timely. Timeliness is evaluated based on the totality of the circumstances, including: “(1) how long the applicant had notice of the interest before it made the motion to intervene; (2) prejudice to existing parties resulting from any delay; (3) prejudice to the applicant if the motion is denied; and (4) any unusual circumstances militating for or against a finding of timeliness.” United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994) (citations omitted). The NYAG’s motion is timely because it comes only four days after Petitioners commenced this action and only five days after President Trump issued the Executive Order. Courts in the Second Circuit have found intervention timely where permission was sought much longer after the original plaintiffs filed their complant. See, e.g., Commack Self-Serv. Kosher Meats, Inc. v. Rubin, 170 F.R.D. 93, 100 (E.D.N.Y. 1996) (motion to intervene as of right found timely when filed 46 days after plaintiffs amended their complaint). Further, the NYAG’s request to intervene will not delay any proceedings or prejudice the original parties’ rights. Respondents have not yet filed a responsive pleading to the Petition, and the NYAG is prepared to comply with the Court-ordered schedule for future proceedings in this matter. Petitioners have consented to the NYAG’s request to intervene, counseling against any finding of prejudice as to them. The attorney for Respondents stated that he did not consent to the NYAG’s motion to intervene but also did not object. Accordingly, under the totality of the circumstances, the NYAG’s motion is timely. B. The NYAG Has a Substantial Interest in the Subject Matter of This Action. A movant seeking intervention under Rule 24(a)(2) must establish that its interest in the litigation is “direct, substantial, and legally protectable.” Friends of the E. Hampton Airport, Inc. v. FAA, No. 15-CV-0441(JS)(ARL), 2016 U.S. Dist. LEXIS 25541, at *17-18 (E.D.N.Y. Feb. 29, 2016) (internal quotations and citations omitted). New York State has a substantial interest
-4-

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 9 of 18 PageID #: 204
in the legality and enforceability of the Executive Order because implementation of the EO has already harmed, and threatens continued harm to (i) various sectors of the New York State economy, (ii) the functioning and vitality of New York’s academic institutions, (iii) the public health and staffing of New York’s health providers, and (iv) the quasi-sovereign interest New York State has in protecting the civil rights of all of its residents.
First, the Executive Order threatens New York State’s economy through its impact upon the State’s essential industries—in particular, New York’s financial and technology sectors, which rely heavily upon the employment and contributions of foreign nationals—including many nationals of the seven countries designated by the Executive Order. The Chief Executive Officer (“CEO”) of J.P. Morgan Chase, which is headquartered in New York and employs tens of thousands of individuals in Manhattan alone, has stated that the Executive Order affects “a number of our outstanding employees — all of whom have adhered to our country’s immigration and employment processes — who have come to the United States to serve our company, clients and communities.” Similarly, Michael Corbat, CEO of Citigroup, also headquartered in New York, stated that he was “concerned about the message the executive order sends, as well as the impact immigration policies could have on our ability to serve our clients and contribute to growth.” (Prop. Compl. ¶ 62.) Harm to New York’s leading industries affects not only the general economic health of the State, but also affects its fiscal health and the tax base upon which the State can draw for its own budget.
Second, the Executive Order harms the functioning and economic bottom line of both public and private academic institutions in New York State. The City University of New York has 807 undergraduate students currently enrolled who are affected by the Executive Order, and also currently employs 46 visa-holders affected by the Executive Order. The State University
-5-

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 10 of 18 PageID #: 205
of New York (“SUNY”) enrolls 22,140 international students from 180 different countries. Of those students, 320 are affected by the Executive Order. (See id. ¶ 47.)
New York has an interest in cultivating diverse, multicultural, and international academic communities. But the Executive Order has already limited, and will continue to limit, the ability of international students and faculty—including those who are nationals of the seven countries designated in the Executive Order—to travel to, study, and provide instruction in New York.
In addition to restricting the benefits that flow from diverse and international student bodies, the Executive Order also harms the economic health of academic institutions in New York and the State’s economy at large. In 2015, international students from the seven affected countries who were enrolled in New York State institutions contributed $30.4 million to New York State’s economy, which includes direct payments for tuition and fees and living expenses. (See id. ¶ 49.) The disruption to enrollment of international students that the Executive Order causes directly decreases the revenue flowing to those public and private academic institutions, to their detriment, and to the detriment of New York State’s taxing authorities.
The Executive Order further harms the strength of New York State’s academic institutions by limiting the ability of those institutions to attract global talent. An Associate Vice Chancellor of New York University’s Global Programs has expressed concern about being able to attract top international scholars, who may have reservations about relocating to the United States in light of the Executive Order—especially if they are from Muslim-majority countries. (See id. ¶ 44.) A similar concern was expressed by Columbia University, which noted the profound impact the Executive Order will have on the University because it bars many scholars who enrich and contribute to the institution. (See id. ¶ 43.)
-6-

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 11 of 18 PageID #: 206
Third, the Executive Order has already harmed and continues to harm the public health of New York State by limiting the State’s ability to staff its hospitals and medical institutions. For example, as a result of the Executive Order, a second-year resident at Interfaith Medical Center in Brooklyn—one of New York’s safety-net hospitals—was denied entry back into the United States when he attempted to leave Sudan after a visit to his family. The doctor is a Sudanese citizen who possesses a valid H-1B visa for foreign workers in specialty occupations. He has been unable to return to work. As the Executive Director of the Committee for Interns and Residents has reported to the NYAG, even the shortage of one physician has a significant impact on safety-net hospitals and the patients they treat. (See id. ¶ 55.)
The Executive Order also restricts the ability of New York medical institutions to freely exchange ideas and scientific knowledge with international partners. For example, the Weill Cornell Medical College in Manhattan—through a partnership with the Qatar Foundation for Education, Science, and Community Development—hosts at least 17 students who hold passports from one of the seven nations identified in the Executive Order. The ability of these students to travel to conferences or other academic gatherings has been and is being limited by the Executive Order. (See id. ¶ 53.)
But perhaps most significant to the public health of New York State is the damage the Executive Order has already done, and continues to do, to the staffing of New York’s “safety net” hospitals, which treat some of New York State’s most impoverished, high-needs communities. The Committee for Interns and Residents has identified dozens of resident physicians in New York City alone who are affected by the Executive Order, including paid and volunteer resident physicians who serve safety-net hospitals. These individuals include, for
-7-

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 12 of 18 PageID #: 207
example, the Sudanese second-year resident at Interfaith Medical Center whose circumstances are described above.
Fourth, the Executive Order harms the State of New York through its deprivation of the civil rights of New York residents. As courts have frequently observed, the State has a quasisovereign interest in protecting the civil rights of all residents within its jurisdiction. See, e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 609 (1982) (noting the “political, social, and moral damage” resulting from discrimination and observing there is “no doubt that a State could seek, in the federal courts, to protect its residents from such discrimination”).1
The extensive state interests set forth above demonstrate that New York has a substantial interest in the subject matter of this action.
C. Disposition of the Original Action May Impair the NYAG’s Ability to Protect The State’s Interests.
“Rule 24 only requires a showing . . . that the disposition of the action may as a practical matter impair or impede [the movant’s] ability to protect” its interest, but the movant “need not demonstrate that a substantial impairment of its interest will result.” Home Ins. Co. v. Liberty Mut. Ins. Co., No. 87 Civ. 0675 (SWK), 1990 WL 188925, at *5 (S.D.N.Y. 1990) (granting motion to intervene). Disposition of this action may impair the NYAG’s ability to protect the State’s interests in at least two ways. First, an adverse ruling against the Petitioners, and in favor
1 See also New York v. 11 Cornwell Co., 695 F.2d 34, 38-40 (2d Cir. 1982) (discussing New York State’s quasi-sovereign interest in protecting the civil rights of individuals with mental disabilities), modified on other grounds, 718 F.2d 22 (2d Cir. 1983) (en banc); New York v. MidHudson Medical Group, 877 F. Supp. 143, 147 (S.D.N.Y. 1995) (discussing New York State’s quasi-sovereign interest in protecting civil rights of hearing-impaired individuals); New York v. Walkill, No. 01-Civ-0364 (CM), 2001 U.S. Dist. LEXIS 13364, at *3 (S.D.N.Y. Mar. 16, 2001) (discussing New York State’s quasi-sovereign interest in protecting the civil rights of women against gender profiling by police).
-8-

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 13 of 18 PageID #: 208
of Respondents – e.g., on the legality of the Executive Order – would impair New York’s ability to protect the interests set forth in Section I.B, supra.
Second, Petitioners filed the instant action as a putative class action, seeking to represent individuals from the seven affected countries “who are legally authorized to enter the United States, but who have been or will be denied entry to the United States” based on the Executive Order. (ECF No. 4, ¶ 7.) But New York State seeks to vindicate the interests of a swath of New York residents that is broader than the proposed class. As noted above, there are New York residents harmed by the Executive Order who have not yet been denied entry into the United States—i.e., those originating from the seven affected countries who fear leaving the U.S. in the first instance out of concern they will later be detained or not permitted to re-enter. For example, a Canadian-Libyan dual citizen born in Benghazi, and completing her Master’s Degree at NYU on an F1 visa, had made plans to complete a religious pilgrimage (Umrah) in March 2017 to Makkah, Saudi Arabia that was organized by the university’s Islamic Center. However, because the Executive Order could prevent her reentry into the U.S., she is considering cancelling her journey. (Prop. Compl. ¶ 20.)
Similarly, an Iranian vice president of a leading structural engineering firm who teaches at Columbia University and is a lawful permanent resident in the United States. He has already been forced to cancel plans to travel to an engineering conference in Europe, and fears the indefinite impact of the travel ban on his personal and professional life. (Id. ¶ 42(a).)
Petitioner’s proposed class does not include all of the New York residents whose interests the NYAG seeks to protect, and an adverse or even narrow ruling by the Court on behalf of the proposed class could impair New York’s ability to protect the interests of all of its affected residents. Cf. AB v. Rhinebeck Cent. Sch. Dist., 224 F.R.D. 144, 157 (S.D.N.Y. 2004) (holding
-9-

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 14 of 18 PageID #: 209

government’s ability to protect its interest may be impaired where private plaintiffs could settle

discrimination case without seeking relief as broad in scope as the government seeks). D. The Original Parties Cannot Adequately Protect the Interests of the State. Under Rule 24(a)(2), the burden to demonstrate inadequacy of representation is

“minimal.” Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 179 (2d Cir. 2001). See

also Chao v. Local 1104 Commc’ns Workers, 2007 WL 1231616, at *2 (E.D.N.Y. Apr. 26, 2007)

(“with respect to the adequacy of representation, the burden on an intervenor is to show that such

representation ‘may be’ inadequate and, therefore, ‘should be treated as minimal’”) (quoting

Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)).

1.

The NYAG meets this minimal burden. As set forth in the Proposed Complaint,

the NYAG brings this action to protect its unique interests in the State’s economy, academic

institutions, public health, and the civil rights of all New York residents—interests which are

not, and could not, be fully represented by the Petitioners. Furthermore, a significant number of

New York’s residents are affected by the Executive Order, including more than 15,000 state

residents who were born in one of the seven affected countries, and thousands of refugees

resettled in New York. (Prop. Compl. ¶¶ 38-39.) Thus, any resolution of Plaintiffs’ claims

without the NYAG’s participation will impact New York State’s ability to fully protect the

health, economy, and well-being of all New Yorkers, and will not adequately represent the

State’s interests in this action.

II. Alternatively, the NYAG Should Be Allowed to Intervene by Permission. In the alternative, the NYAG respectfully requests that the Court exercise its discretion
and permit intervention under Fed. R. Civ. P. 24(b)(1)(B). When deciding whether to permit intervention, courts consider “substantially the same factors” as for intervention as of right.
-10-

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 15 of 18 PageID #: 210
Kaliski v. Bacot, 320 F.3d 291, 300 n.5 (2d Cir. 2003); see also U.S. Postal Serv. v. Brennan, 579 F.2d 188, 191-92 (2d Cir. 1978) (listing, inter alia, factors considered for intervention as of right when ruling on permissive intervention). The discussion in Section I, supra demonstrates that the NYAG has satisfied these criteria.
The “principal consideration” for permissive intervention is “whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” See Pitney Bowes, 25 F.3d at 73 (quoting Fed. R. Civ. P. 24(b)(2))). As noted above, Plaintiffs have consented to the NYAG’s motion to intervene, the Respondents have not yet filed a responsive pleading, and the NYAG is prepared to comply with the schedule ordered by this Court. These facts establish that intervention will neither unduly delay this action nor prejudice the adjudication of the claims of the existing parties.
Moreover, under Rule 24(b), a timely applicant may be permitted to intervene when an applicant’s claims or defense and the main action share a common question of law or fact. Fed. R. Civ. P. 24(b); see also United States v. City of New York, No. 07-CV-2067, 2012 WL 314353, at *3 (E.D.N.Y. Feb. 1, 2012) (“first requirement” for permissive intervention is a “claim or defense that shares with the main action a common question of law or fact”), aff’d in part, vacated in part on other grounds, 717 F.3d 72 (2d Cir. 2013). Courts also consider whether intervenors “will significantly contribute to full development of the underlying factual issues” and “just and equitable adjudication of the legal question presented.” H.L. Hayden Co. v. Siemens Med. Sys. Inc., 797 F.2d 85, 89 (2d Cir. 1986) (internal quotations omitted); see also City of New York, 2012 WL 314353, at *3 (additional factors considered include “whether the putative intervenor will benefit from the application, the nature and extent of its interests, whether its interests are represented by the existing parties, and whether the putative intervenor
-11-

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 16 of 18 PageID #: 211
will contribute to the development of the underlying factual issues”). Ultimately, permissive intervention lies in the Court’s discretion. See Wells Fargo Bank,
N.A. v. Levin, No. 15-2773 (LDW) (AYS), 2016 U.S. Dist. LEXIS 74410, at *5 (E.D.N.Y. June 6, 2016), report and recomm. adopted by 2016 U.S. Dist. LEXIS 100508 (E.D.N.Y. July 22, 2016) (granting motion to intervene); Sackman v. Liggett Group, No. 93 CV 4166 (ADS), 167 F.R.D. 6, 22-23 (E.D.N.Y. 1996) (granting motion to intervene).
The Proposed Complaint shares common questions of law and fact with the Petition. Factually, both concern the implementation of the Executive Order since January 27, 2017, and its effect upon the ability to enter the United States of individuals who are nationals of the seven countries designated in the Executive Order. Both the Petition and Proposed Complaint specifically allege the effect upon harms that have befallen individuals the United States and originating from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. Legally, both allege that implementation of the Executive Order violates similar provisions of federal law, including the Immigration and Nationality Act, the Administrative Procedures Act, and the Due Process Clause of the Fifth Amendment to the U.S. Constitution. (Compare ECF No. 1, ¶¶ 57-74, with Ex. A, ¶¶ 77-132.)
While the NYAG’s claims are similar to those presented in the instant action, the NYAG’s Proposed Complaint also includes essential additional facts for the Court to consider. For example, in addition to seeking to protect the interests of New York residents – i.e., those separated from their families, or unable to leave or return to the U.S. for work, academic, or personal commitments – the NYAG also seeks to vindicate New York State’s unique interests in its economy, academic institutions, public health, and the general vindication of the civil rights of its residents. These interests suggest that the NYAG is uniquely situated and would
-12-

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 17 of 18 PageID #: 212 “significantly contribute to full development of the underlying factual issues.” H.L. Hayden Co., 797 F.2d at 89 (internal quotations omitted). Therefore, the NYAG’s intervention would further ensure that a “just and equitable adjudication of the legal questions presented” is reached. Id.
* For the foregoing reasons, the NYAG respectfully requests that the Court grant its motion to intervene in this action. A proposed order is attached as Exhibit B.
-13-

Case 1:17-cv-00480-CBA Document 39 Filed 02/02/17 Page 18 of 18 PageID #: 213
Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York

Of Counsel:
Justin Deabler Sania Khan Anjana Samant Assistant Attorneys General Civil Rights Bureau
Adam Pollock Mark Ladov Assistant Attorneys General

________________________
Lourdes M. Rosado* Bureau Chief Jessica Attie Special Counsel Civil Rights Bureau
Anisha Dasgupta Deputy Solicitor General
Andrew W. Amend Senior Assistant Solicitor General
Office of the New York State Attorney General
120 Broadway New York, New York 10271 Tel. (212) 416-8250 Fax (212) 416-8074 Lourdes.Rosado@ag.ny.gov

Dated:

February 2, 2017 New York, New York

* Admission pending.
-14-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 1 of 33 PageID #: 214
EXHIBIT A
NEW YORK STATE ATTORNEY GENERAL’S [PROPOSED] COMPLAINT IN INTERVENTION

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 2 of 33 PageID #: 215

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI,
on behalf of themselves and others similarly situated,
Petitioners,
PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK,
Intervenor-Plaintiff,
v.
DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and JAMES T. MADDEN, New York Field Director, CBP,
Respondents. ----------------------------------------------------------X

Case No.: 17-cv-00480

[PROPOSED] COMPLAINT TO INTERVENE IN PETITION FOR WRIT OF HABEAS CORPUS
AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION

1.

On behalf of the people of the State of New York, the Office of the Attorney

General for the State of New York (“NYAG”) brings this action to protect the rights of New

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 3 of 33 PageID #: 216

York residents; the economic welfare, health, and well-being of its citizenry; and the interests of

New York’s employers, hospitals, and educational institutions. President Trump’s January 27,

2017, Executive Order is his attempt to fulfill an oft-repeated campaign promise to ban Muslims

from entering the United States. The Executive Order bars the entry of many individuals,

including New Yorkers, who are lawfully authorized to enter this country on the basis of

previously issued immigration documents. The Executive Order thus immediately suspended the

constitutional and statutory rights of many New Yorkers who are part of the fabric of our

communities.

2.

The Executive Order has caused immediate and serious harm to the people of

the State of New York. New York residents and their family members, including many who are

legally authorized to live in and enter this country, have been prevented from exercising their

legal immigration rights—and indeed have been detained at New York’s airports when they

attempted to exercise those rights—solely because of the Executive Order. The ban has harmed

New York’s educational institutions by preventing the return, employment, or enrollment of

students, faculty, and researchers. New York-based individuals have been induced to withdraw

from international academic and research conferences, and individuals from abroad have been

deterred from registering for or attending conferences here in New York. Hospitals—including

safety-net facilities providing care for some of our most vulnerable populations—have found

staff physicians, medical residents, and other health care professionals unable to return or join

their ranks. And from small businesses to large corporations, New York’s financial, technology,

and other sectors have had to limit business-related travel by employees to foreign countries in

the face of the uncertainties created by the Executive Order, injuring existing business activities

and potentially inhibiting future business ventures.

-2-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 4 of 33 PageID #: 217

3.

In the Executive Order, the President directed agencies to stop people from

entering the country because their country of origin is one of seven Muslim-majority nations; or

because they are attempting to flee personal persecution or a homeland ravaged by war, such as

Syria. And this ban applies even when the individual seeking entry is already legally authorized

to live in or enter the United States.

4.

The sweeping breadth and lack of clarity surrounding the Executive Order’s

provisions have resulted in immigration authorities implementing its provisions inconsistently.

Based on this experience, New York residents or their family members seeking entry into the

United States have been prevented from doing so; and some have canceled and been unable to

make plans to travel abroad because of a legitimate fear that they will be prevented from

boarding flights when trying to return to the United States or denied entry at the border.

JURISDICTION AND VENUE

5.

This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331,

1361. This Court has jurisdiction to issue the declaratory relief requested pursuant to the

Declaratory Relief Act, 28 U.S.C. § 2201 et seq. This Court may also grant injunctive relief

pursuant to Federal Rule of Civil Procedure 65.

6.

Venue is proper in the Eastern District of New York pursuant to 28 U.S.C.

§ 1391(b), because a substantial part of the events or omissions giving rise to this action

occurred in the Eastern District of New York.

PARTIES

7.

The intervenor-plaintiff is New York Attorney General Eric T. Schneiderman on

behalf of the People of the State of New York.

-3-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 5 of 33 PageID #: 218

8.

The defendants are:

(a) Donald J. Trump, who is sued in his official capacity as the President

of the United States;

(b) The U.S. Department of Homeland Security (“DHS”), a cabinet

department of the United States federal government with the primary

mission of securing the United States;

(c) John Kelly, the Secretary of DHS, who is sued in his official

capacity;

(d) The U.S. Customs and Border Protection (“CBP”), an agency within

DHS, with the primary mission of detecting and preventing the

unlawful entry of persons and goods into the United States;

(e) Kevin K. McAleenan, the Acting Commissioner of CBP, who is sued

in his official capacity; and

(f) James T. Madden, the Director of the New York Field Office of

CBP, who is sued in his official capacity.

STATEMENT OF FACTS

History of President Trump’s Plan to Create a Ban on the Entry of Muslims into the United States

9. On December 7, 2015, then-candidate Donald Trump issued a “Statement on

Preventing Muslim Immigration,” in which he called for a “total and complete shutdown of

Muslims entering the United States.” As of the date of this filing, this statement remains on the President’s website.1

1 Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration (last
-4-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 6 of 33 PageID #: 219
10. While campaigning, President Trump made repeated statements in support of a proposed ban on Muslims entering the United States. For instance, on March 10, 2016, candidate Trump stated in an interview, “I think Islam hates us . . . We have to be very vigilant. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States.”2
11. Later in his campaign, President Trump modified the wording of his proposal and began referring to it as a ban on individuals from certain countries. Despite the change in language, President Trump made clear that this proposal was still intended to bar Muslims from entering the United States. During an interview on July 24, 2016, President Trump was asked whether by focusing on areas with a proven history of terrorism he was pulling back from his proposed Muslim ban. President Trump responded, “I actually don’t think it’s a rollback. In fact you could say it’s an expansion. I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”3
12. After he was elected, President Trump continued to support proposals to bar Muslims from entering the United States. For instance, on December 22, 2016, President Trump was asked whether he was rethinking his plans to bar the entry of Muslims and establish a Muslim registry. President Trump responded, “You know my plans all along,” and added that a
visited Feb. 1, 2017). 2 Theodore Schleifer, Donald Trump: “I think Islam hates us,” CNN (March 10, 2016),
http://www.cnn.com/2016/03/09/politics/donald-trump-islam-hates-us/. 3 Interview with Donald Trump, Meet the Press (July 24, 2016), http://www.nbcnews.com/meet-the-
press/meet-press-july-24-2016-n615706.
-5-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 7 of 33 PageID #: 220
recent attack in Berlin, which was claimed by the Islamic State, had proven him “[o]ne hundred percent correct.”4 The January 27, 2017 Executive Order
13. On January 27, 2017, seven days after he was inaugurated, President Trump signed the Executive Order. Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017). The Executive Order asserts that numerous foreign-born individuals have been convicted of or implicated in terrorism-related crimes, among them “foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program.” The Executive Order further states that it is the policy of the United States “to protect its citizens from foreign nationals who intend to commit terrorist attacks” in the United States and “to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.”
14. The Executive Order limits the ability of non-citizens to enter the U.S in a number of ways.
15. Section 3(c) of the Executive Order suspends for 90 days the entry of immigrants and non-immigrants from countries referred to in Section 217(a)(12) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1187(a)(12). Thus, non-citizens from seven countries—Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen—may not enter the U.S. for 90 days from the date of the Executive Order, i.e., from January 27, 2017. By its terms, the ban on entry applies even to immigrants and non-immigrants who have previously been authorized to enter the country and individuals who have already been issued visas.
4 Abby Phillip and Abigail Hauslohner, Trump on the Future of Proposed Muslim Ban, Registry: “You Know My Plans,” Wash. Post (Dec. 22, 2016), https://www.washingtonpost.com/news/postpolitics/wp/2016/12/21/trump-on-the-future-of-proposed-muslim-ban-registry-you-know-myplans/?utm_term=.5ca749ae4685.
-6-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 8 of 33 PageID #: 221
16. Section 5(a) of the Executive Order also places a 120-day moratorium on the U.S. Refugee Admissions Program. Section 5(c) states that the “entry of nationals of Syria as refugees is detrimental to the interests of the United States” and thus “suspend[s] any such entry until such time as [President Trump has] determined that sufficient changes have been made to the [U.S. Refugee Admissions Program] to ensure that admission of Syrian refugees is consistent with the national interest.”
17. Section 5(e) of the Executive Order further states that, notwithstanding the 120day moratorium on refugee resettlement, the U.S. Secretaries of State and Homeland Security may, on a case-by-case basis, jointly decide to admit individuals to the United States as refugees if the admission of those individuals is in the “national interest.” Section 5(e) explicitly states that the “national interest” arises in those cases in which “the person is a religious minority in his country of nationality facing religious persecution.” Section 5(b) confirms the religious focus of the refugee moratorium by providing that, if and when the U.S. Refugee Admissions Program resumes, the Secretaries of State and Homeland Security shall “prioritize” religious-persecution refugee claims where “the religion of the individual is a minority religion in the individual’s country of nationality.” The Discriminatory and Unconstitutional Objectives of the Executive Order
18. After taking office, President Trump made clear that his purpose in issuing these immigration restrictions remained focused on Muslims. See supra ¶¶ 9-12. After signing the Executive Order on January 27, 2017, President Trump stated, “I am establishing new vetting
-7-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 9 of 33 PageID #: 222
measures to keep radical Islamic terrorists out of the United States . . . We don’t want them here.”5
19. The Executive Order on its face favors refugee applicants belonging to “minority religions” in the applicant’s country of origin. President Trump has admitted that the purpose of this provision is to favor Christians over other persons of other religions.
20. During an interview on Christian Broadcast News on January 27, 2017, President Trump stated that Christian refugee applicants would receive priority: “[Christians] have been horribly treated. Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.”6
21. President Trump’s close associates confirmed that the proposed ban on individuals from particular areas was simply a method for implementing President Trump’s Muslim ban. On January 28, 2017, the day after the signing of the Executive Order, Rudolph Giuliani, a close advisor to President Trump, was asked whether the ban had anything to do with religion. Mr. Giuliani replied, “I’ll tell you the whole history of it. So when [President Trump] first announced it, he said ‘Muslim ban.’ He called me up. He said, ‘Put a commission together.
5 Dan Merica, Trump Signs Executive Order to Keep Out “Radical Islamic Terrorists, CNN (Jan. 30, 2017), http://www.cnn.com/2017/01/27/politics/trump-plans-to-sign-executive-action-on-refugees-extreme-vetting/.
6 Dan Brody, President Trump Says Persecuted Christians Will Be Given Priority as Refugees, CBS News, The Brody File (Jan. 27, 2017), http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusivepresident-trump-says-persecuted-christians-will-be-given-priority-as-refugees.
-8-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 10 of 33 PageID #: 223
Show me the right way to do it legally.’ . . . . And what we did was, we focused on, instead of religion, danger — the areas of the world that create danger for us.”7
22. In addition to the Muslim ban, President Trump has proposed several other measures targeted specifically at Muslims.
23. During an interview on November 16, 2015, President Trump stated, “You’re going to have to watch and study the mosques, because a lot of talk is going on at the mosques.” When asked in the same interview whether he would consider shutting down mosques, he responded, “I would hate to do it, but it’s something that you’re going to have to strongly consider.”8
24. On November 20, 2015, during an interview, President Trump was asked whether he would create a database to track Muslims in the United States. He responded, “I would certainly implement that. Absolutely.” When asked whether Muslims would be legally obligated to register with that database, he stated, “They have to be—they have to be.”9
25. The First Amendment’s Establishment Clause forbids the government from favoring or disfavoring particular religions.
26. Despite this prohibition, Defendants have repeatedly demonstrated through their actions and statements, see supra ¶¶ 9-24, their intent to discriminate against Muslims on the basis of religion.
7 Available at Amy B. Wang, Trump asked for a “Muslim Ban,” Giuliani Says – and Ordered a Commission to do it “Legally,” Wash. Post (Jan. 29, 2016), https://www.washingtonpost.com/news/thefix/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says-and-ordered-a-commission-to-do-itlegally/?utm_term=.c6c40237e00d.
8 Trump: We Must Watch and Study Mosques, MSNBC (Nov. 16, 2015), http://www.msnbc.com/morningjoe/watch/trump-we-must-watch-and-study-mosques-567563331864.
9 Vaughn Hillyard, Donald Trump’s Plan for a Muslim Database Draws Comparison to Nazi Germany, NBC News (Nov. 20, 2015), http://www.nbcnews.com/politics/2016-election/trump-says-he-would-certainlyimplement-muslim-database-n466716.
-9-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 11 of 33 PageID #: 224
Defendants’ Conflicting and Changing Interpretations and Implementation of the Executive Order
27. Defendants’ publicly stated interpretation and application of the Executive Order have changed several times since it was initially signed, causing confusion and apprehension among many law-abiding individuals with ties to New York State who are unable to carry on their normal lives because of the uncertainty created by this ever-changing situation.
28. President Trump signed the Executive Order on January 27, 2017. At 4:30 p.m. that same day, the DHS issued a directive to its CBP agents to enforce the Executive Order.
29. Preliminary guidance sent by CBP to airlines on January 27, 2017 stated that “lawful permanent residents are not included [in the ban] and may continue to travel to the USA.”10
30. However, on January 28, 2017, senior officials at the White House told several press outlets that the Executive Order did cover lawful permanent residents outside the country, that such residents needed a waiver to re-enter the United States, and that waivers would be granted on a case-by-case basis. While these officials stated that lawful permanent residents in transit back to the United States could obtain a hardship exemption under the order, they revealed that they had yet to work out how to define “in transit” or “hardship.”11
31. Beginning on January 28, 2017, CBP agents began denying entry to lawful permanent residents. Other lawful permanent residents were prevented from boarding flights to the United States from the covered countries.
10 Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017), http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/index.html.
11 Michael Edison Hayden & Benjamin Siegel, Green Card Holders Fall Under Trump’s Executive Order, ABC News (Jan. 28, 2017), http://abcnews.go.com/Politics/green-card-holders-fall-trumps-executiveorder/story?id=45113679.
-10-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 12 of 33 PageID #: 225
32. On January 29, 2017, White House Chief of Staff Reince Priebus was asked in an interview about the inclusion of lawful permanent residents in the Executive Order. Priebus responded, “as far as green card holders moving forward, it doesn’t affect them.” However, when asked to clarify whether the Executive Order applies to green card holders, Mr. Priebus stated, “Well, of course it does. If you’re traveling back and forth, you’re going to be subjected to further screening.”12
33. Later, on January 29, 2017, DHS Secretary John Kelly stated, “In applying the provisions of the President’s Executive Order, I hereby deem the entry of lawful permanent residents to be in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”13
34. Differing interpretations of the Executive Order have also caused confusion for dual nationals. Dual nationals are individuals who were born in or are nationals of one of the seven countries covered by the Executive Order, but are also nationals of a second country not covered by the Executive Order.
35. On January 28, 2017, State Department officials stated that dual nationals from one of the seven covered countries would not be permitted to enter the United States.14
12 Alexandra Jaffee, Priebus: Immigration Order “Doesn’t Include” Green Card Holders, But Anyone Traveling to Banned Countries Will Be “Subjected to Further Screening,” NBC News (Jan. 29, 2017), http://www.nbcnews.com/politics/politics-news/priebus-immigration-order-doesn-t-include-green-card-holdersanyone-n713731 .
13 Press Release, DHS, Statement by Sec’y John Kelly on the Entry of Lawful Permanent Residents into the United States (Jan. 29, 2017), https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawfulpermanent-residents-united-states.
14 Dan Merica, How Trump’s Travel Ban Affects Green Card Holders and Dual Citizens, CNN (Jan. 29, 2017), https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residentsunited-states.
-11-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 13 of 33 PageID #: 226

36. However, guidance provided to airlines on January 29, 2017 stated that dual nationals are exempt from the restrictions created by the Executive Order.15

37. Most recently, upon information and belief, personnel of the U.S. Citizenship and

Immigration Services—the division of DHS that is charged with processing immigrant visa

petitions, naturalization petitions, and asylum and refugee applications—have been instructed not

to take any final action on applications from nationals of the seven countries targeted by the

Executive Order. This includes petitions for asylum, permanent residency, or naturalization.

The Executive Order Profoundly Harms New York and its Residents

38. New York is home to more than 4.4 million foreign-born residents, who

comprise 22.5 percent of the State’s population. More than 15,000 of these residents were born in one of the seven affected countries.16

39. Syria.17

In 2016, New York resettled 5,830 refugees, of whom 803 were refugees from

40. Beginning on January 27, 2017, individuals returning to New York State whose

country of origin was one of the seven designated by the Executive Order have been detained at

airports and other ports of entry pursuant to the Executive Order. The Executive Order has

significantly harmed the overall health and well-being of New York and its people, as well as its

business interests and economy.

15 Id. 16 U.S. Census Bureau, 2011-2015 Am. Cmty. Survey 5-Year Estimates, B05002: Place of Birth by Nativity and Citizenship Status; Universe: Total Population, https://factfinder.census.gov/bkmk/table/1.0/en/ACS/15_5YR/B05002/0400000US36. 17 Refugee Processing Center, Bureau of Population, Refugees, and Migration, Dep’t of State, http://ireports.wrapsnet.org (MX – Arrives by Destination and Nationality).
-12-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 14 of 33 PageID #: 227
The Executive Order Hampers Work in the Fields of Technology, Computers and Engineering
41. On January 30, 2017, more than 2,000 New York business and technology leaders signed a letter to President Trump, explaining that the Executive Order “threaten[s] those immigrants who are our current and future neighbors, friends, colleagues, customers, and even bosses.”18 Indeed, technology companies with a significant presence in New York have publicly decried the effect of the Executive Order on their businesses. For example, Google (6,000 employees in New York), Apple (4,400 employees in New York), Amazon (3,700 employees in New York), and Microsoft (2,000 employees in New York) have stated that the travel ban disrupts their operations by impeding their employees’ abilities to travel for business, affecting vendor and client relationships, and undermining their ability to compete in hiring from the global talent pool.19
42. The concerns of these industry leaders are borne out by the NYAG’s interviews of several people directly affected by the Executive Order,20 including:
a. An Iranian vice president of a leading structural engineering firm who teaches at Columbia University and is a lawful permanent resident in the United States. He has already been forced to cancel plans to travel to an engineering conference in Europe, and fears the indefinite impact of the travel ban on his personal and professional life.
18 Ltr. from Tech: NYC to Pres. Donald Trump (Jan. 30, 2017), https://www.technyc.org/trumpeo/. 19 See generally Brian Fung and Herman Wong, “Apple Would Not Exist Without Immigration”: Companies at Trump’s Tech Summit React to His Travel Ban, Wash. Post (Jan. 29, 2017), https://www.washingtonpost.com/news/wonk/wp/2017/01/29/apple-would-not-exist-without-immigrationcompanies-at-trumps-tech-summit-react-to-his-travel-ban/?utm_term=.0aee0bd707b3. 20 Unless otherwise noted, allegations concerning persons directly affected by this Executive Order are based upon interviews by the NYAG of such persons. These accounts are intended to be illustrative of the types of harm experienced by New Yorkers.
-13-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 15 of 33 PageID #: 228
b. An New York University (“NYU”) computer science Ph.D. student from Iran, who is seeking to advance his research by attending topical conferences abroad. He is now unable to make pre-planned trips to such conferences because he risks being unable to return. The Executive Order Hurts New York State’s Educational Institutions and Prevents New York Students from Continuing their Studies 43. The Executive Order stifles the open exchange of knowledge, ideas, and scholarship between New York educational institutions and the affected countries—preventing New York schools from benefitting from the talents of students and scholars from these countries. Indeed, institutions such as Columbia University have noted the profound impact this Executive Order will have on their mission because it bars many scholars—both students and faculty—from enriching and contributing to these institutions. 44. Colleges and universities within New York State are concerned that they could face difficulty attracting top international scholars, who may have reservations about relocating to the United States in light of the Executive Order—especially if they are from Muslimmajority countries. 45. New York institutions of higher learning are leaders in cultivating diverse and international academic communities. According to the Institute of International Education (“IIE”), in 2015 there were almost 1,000 foreign nationals from the affected countries studying in New York on temporary visas.21 46. For the last three years, NYU has had more international students enrolled than
21 The majority of these foreign nationals have F1 student visas or J1 visas, which afford foreign students cultural and educational exchange opportunities in the United States. This figure does not include U.S. citizens, permanent residents, undocumented people, people with deferred action status, refugees/asylees, or any students of U.S. institutions who are not physically present in the United States, such as online students residing in another country or students at a U.S. university’s international branch campus.
-14-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 16 of 33 PageID #: 229
any other university in the United States. In 2015, NYU had 15,543 international students, including students from the affected countries.
47. The State University of New York (“SUNY”) is the largest comprehensive system of higher education in the United States, with 64 college and university campuses located within 30 miles of every home, school and business in the state. SUNY enrolls 22,140 international students from 180 different countries. Of those students, 320 are affected by the Executive Order.
48. As of fall 2015, the City University of New York (“CUNY”) enrolls 245,279 students in its undergraduate program; 36.2 percent of those students are foreign born. CUNY has 807 undergraduate students who are affected by the Executive Order. CUNY also employs 46 visa-holders from the affected countries.
49. The Executive Order will inflict great financial injury on New York State, as international students provide substantial contributions to New York State’s economy. Based on information from Open Doors and the U.S. Department of Commerce, the IIE estimates that in 2015, international students from the seven affected countries who were enrolled in New York State institutions contributed $30.4 million to New York State’s economy, which includes direct payments for tuition and fees and living expenses. This figure does not include indirect economic benefits, such as the contributions of international students and scholars to innovation in academic and medical research.
50. The New York-based students who have been prevented from continuing their studies include an Iranian Ph.D. student at CUNY’s Graduate Center on a student visa, who was detained in Abu Dhabi when she tried to return to New York after winter break and was then
-15-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 17 of 33 PageID #: 230
sent back to Iran, where she remains today.22 51. The Executive Order also has prevented scholars from contributing to New
York’s rich academic community. For example, an Iranian citizen who has a Ph.D. in Mechanical Engineering was granted an EB-2 National Interest Waiver (which is provided to foreign nationals who have demonstrated that their permanent residence would be in the “national interest” of the United States) and received an offer to teach mechanical engineering at a private university in New York State, but because of the Executive Order she will be unable to relocate to New York from Iran.
52. Similarly, a British-Iraqi dual citizen who is a fellow at the Center for Global Energy Policy at Columbia University and was in London at the time the Executive Order was signed, was unable to attend a speaking engagement at Columbia University on February 1, 2017. The speaking engagement was a mandatory component of his fellowship. Conflicting messages from government agencies about the scope of the Executive Order compelled him to cancel his trip from London to New York. He has two upcoming speaking engagements in the United States at which he would be speaking in his capacity as a fellow, but is considering cancelling them because he is fearful of being detained. He is unsure whether he will be able to continue the fellowship. The Executive Order Hinders the Provision of Health Care in New York State
53. New York’s health care institutions rely on physicians who come from all over the world to provide health care to New Yorkers and to train and teach the next generation of medical professionals in New York. The Executive Order impedes those important activities by barring the entry of physicians from the affected countries, including many who are already
22 This information was confirmed in an interview with CUNY faculty.
-16-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 18 of 33 PageID #: 231
providing essential services in New York. Weill Cornell Medicine, for example, has developed a partnership with the Qatar Foundation for Education, Science and Community Development and currently has at least 17 students who hold passports from one of the seven designated countries.
54. The Executive Order has been particularly harmful to a number of New York’s “safety-net” hospitals, which treat some of New York State’s most high-needs communities. Dozens of resident physicians in New York City alone are affected by the Executive Order. This includes paid and volunteer resident physicians who serve safety-net hospitals, particularly in primary care units.
55. As a result of the Executive Order, a second-year resident at Interfaith Medical Center in Brooklyn—one of New York’s safety-net hospitals—was denied entry back into the United States when he attempted to leave Sudan after a visit to his family. The doctor is a Sudanese citizen who has a valid H-1B visa for foreign workers in specialty occupations. He has been unable to return to work. As the Executive Director of the Committee for Interns and Residents has reported to the NYAG, even the shortage of one physician has a significant impact on safety-net hospitals and the patients they treat. The Executive Order Impedes Life-Saving Medical Research in New York State
56. Individuals from the affected countries are currently engaged in critical medical research in New York, and New York has a strong interest in ensuring that such individuals remain able to contribute to medical and other research in New York going forward. The Executive Order interferes with ongoing research by preventing individuals from the affected countries from entering or re-entering the country, and by preventing them from traveling abroad to attend conferences, collaborate with other scientists and institutions, and otherwise advance their research.
-17-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 19 of 33 PageID #: 232
57. For example, the Executive Order has impeded the research of a legal permanent resident from Iran who moved to the United States to obtain her Ph.D. in biochemistry from Harvard University, and is currently researching neurobiology at the Weill Cornell Medical College of Cornell University. The ban prevents her from traveling to international scientific conferences. The ability to travel is essential to her career in advancing the treatment of human neurological diseases.
58. The Executive Order has also deterred individuals from the affected countries from continuing or beginning to conduct research in New York. An Iranian-Canadian dual citizen who is a Ph.D. student at Cornell University Medical School—and is currently conducting cutting-edge research into leukemia treatments at Memorial Sloan Kettering Cancer Center—had planned to continue her cancer research in the United States after finishing her Ph.D. in the next few months. She is now unsure whether she will be able to apply for a work visa or become a lawful permanent resident. The Executive Order Will Negatively Affect New York’s Financial Sector
59. New York City is a global hub for the finance industry, which employs nearly half a million New Yorkers, including many immigrants from the affected countries. The Executive Order directly affects such individuals and deters them from joining or staying with financial firms in New York.
60. Jamie Dimon, the Chief Executive Officer (CEO) of J.P. Morgan Chase, which is headquartered in New York and employs tens of thousands of people in Manhattan alone, has stated that the Executive Order affects “a number of our outstanding employees—all of whom have adhered to our country’s immigration and employment processes—who have come to the
-18-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 20 of 33 PageID #: 233
United States to serve our company, clients and communities.”23 61. Lloyd Blankfein, the CEO of Goldman Sachs, also headquartered in New York,
has spoken out against the Executive Order, stating that “For us to be successful, our men and women must reflect the diversity of the communities and cultures in which we operate…. We must attract, retain and motivate people from many backgrounds and perspectives.”24
62. Michael Corbat, CEO of Citigroup, which is also based in New York, has said that he is “concerned about the message the executive order sends, as well as the impact immigration policies could have on our ability to serve our clients and contribute to growth.”25 The Executive Order Harms Families
63. The Executive Order directly harms New York residents from the affected countries who are deterred from visiting their families abroad due to a legitimate fear that they will be unable to reenter the country.
64. An Iranian-Canadian scientist at the Memorial Sloan Kettering Cancer Center, whose research uses computational biology and clinical statistics to improve the lives of cancer patients, purchased an airplane ticket to visit her 75-year-old mother and elderly in-laws in Tehran over the Persian New Year in March. This family is now devastated that she and her husband must cancel their visit, because her employer has advised her not to travel outside the United States.
23 Oscar Williams-Grut and Portia Crowe, JPM Memo on Trump’s Travel Ban: We have an “Unwavering Commitment” to Our Staff, Business Insider (Jan. 30, 2017), http://www.businessinsider.com/jpmorgan-jpm-memoon-donald-trumps-travel-ban-policy-2017-1 .
24 Nathan Vardi, Goldman Sachs CEO Lloyd Blankfein Opposes Trump Travel Ban, Forbes (Jan. 30, 2017), http://www.forbes.com/sites/nathanvardi/2017/01/30/goldman-sachs-ceo-lloyd-blankfein-opposes-trump-travelban/#7775028558d1 .
25 Portia Crowe, Here’s the Strongly Worded Memo Citi’s CEO Sent Out about the Immigration Ban, Business Insider (Jan. 30, 2017), http://www.businessinsider.com/citigroup-ceo-corbat-on-trump-immigration-ban2017-1.
-19-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 21 of 33 PageID #: 234
65. An Iranian who moved to the United States in 2013 for graduate studies at SUNY New Paltz currently assists with National Institute of Health-funded research into brain structure, diseases, and drug effects. He has been trying for several months to get an interview appointment for his family to visit him in the United States. He was finally able to secure a visa appointment for his family on February 16, 2017, but because of the Executive Order appointments for all Iranians—including his family’s visa appointment—were suddenly cancelled. As a result, the Executive Order is forcing him to choose between seeing his family and staying here to keep his job.
66. The Executive Order also has separated an Iranian Ph.D. student at Columbia Business School from his wife, who is now unable to leave Iran. His wife, who holds a Ph.D. in Electrical Engineering, had returned to Iran to visit her parents. Under the Executive Order, she is now barred from re-entry. This Columbia student is now trapped in a dilemma that no person should face: he can complete his Ph.D. at a leading U.S. university, where he is at the forefront of advancing research, or he can abandon his Ph.D. studies to re-unify his family.
67. A 75-year-old woman from Libya with Parkinson’s disease who has a pending application to become a lawful permanent resident, was detained upon her return to JFK. She was on her way back from visiting her sister in Libya, who was terminally ill and died during the visit. She had been granted permission to travel due to her sister’s illness, yet she was still denied entry into the U.S. upon her return.
68. A lawful permanent resident of Queens, New York traveled to Iran on January 15, 2017, to attend his brother’s funeral. He has lived in the United States since 1978, studied at Pace University, and his wife, daughter, and son are all U.S. citizens. He is scheduled to return to New York on February 6, 2017. However, because of the Executive Order and the erratic
-20-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 22 of 33 PageID #: 235
manner of enforcement, it is uncertain whether he will be permitted to board a flight for the U.S. or be allowed to enter upon arrival at JFK. The Executive Order Chills the Free Exercise of Religion
69. A Canadian-Libyan dual citizen who was born in in Benghazi is here on an F1 visa to complete her Master’s Degree at NYU. She had made plans to complete a religious pilgrimage (Umrah) to Makkah, Saudi Arabia in March 2017; the trip is being organized by the Islamic Center at NYU. She has been forced to consider cancelling her journey because she would be ineligible to reenter under the Executive Order.
PROCEDURAL HISTORY 70. Petitioners in the underlying action are Hameed Khalid Darweesh, an Iraqi husband and father of three, and Haider Sameer Abdulkhaleq Alshawi, an Iraqi husband and father. Both had been granted visas due to their association with the United States military, after the federal government deemed them not to pose threats to the United States. They landed at JFK on January 27, 2017, and were detained and prevented from exiting the airport solely pursuant to the Executive Order. 71. On Saturday, January 28, 2017, the Petitioners filed a Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injuctive Relief with this Court (“Petition”) (ECF No. 4). 72. The Petition alleges that the Executive Order is unlawful as applied to the two named Petitioners as well as all others similarly situated. The Petition alleges five causes of action under various legal authorities, including the Fifth Amendment to the United States Constitution; the Immigration and Nationality Act and its implementing regulations; the United Nations Convention Against Torture, as implemented in the Foreign Affairs Reform and Restructuring Act
-21-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 23 of 33 PageID #: 236
of 1998; and the Administrative Procedure Act. 73. The Petition requested the Court issue a writ of habeas corpus requiring the
Respondents to release the named Petitioners and other members of the proposed class; issue an injuction ordering the Respondents not to detain any individual solely on the basis of the Executive Order; enter a judgment declaring that the Respondents’ detention of the named Petitioners and other members of the proposed class is and will be contrary to law; and award the named Petitioners and other class members reasonable costs and attorneys’ fees.
74. Also on January 28, 2017, the Petitioners filed an Emergency Motion for Stay of Removal (ECF No. 6) on behalf of themselves and all others similarly situated.
75. A hearing was held on the same date, after which the Court issued its January 28, 2017 temporary restraining order (ECF No. 8). After noting the Petitioners’ strong likelihood of success in establishing that the removal of Petitioners and those similarly situated would violate their rights to due process and equal protection under the U.S. Constitution, the Court enjoined the Respondents from removing individuals with refugee aplications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program; holders of valid immigrant and non-immigrant visas; and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen who are legally authorized to enter the United States.
76. On January 29, 2017, out of concern that the Respondents were not complying with the Court’s January 28, 2017 order, Petitioners filed an Emergency Motion for Clarification and Enforcement of Order (ECF No. 9). In the motion, Petitioners stated that their counsel had received repeated reports that individual members subject to the Court’s January 28, 2017 order had been placed on planes, possibly deported, and were subject to intimidation to sign removal orders— at JFK and Los Angeles International Airports—after issuance of the Court’s order. Accordingly,
-22-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 24 of 33 PageID #: 237
Petitioners moved the Court to clarify that its January 28, 2017 order is nationwide in scope and order the Respondents to enforce the stay of removal.
CLAIMS FOR RELIEF First Cause of Action
(Fifth Amendment-Equal Protection) 77. The NYAG realleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 78. The Due Process Clause of the Fifth Amendment prohibits the federal government from denying equal protection of the laws. 79. The Executive Order was motivated by animus and a desire to harm a particular group, as demonstrated by statements made by Defendants concerning their intent and their proposed applications of those provisions. 80. The terms and application of the Executive Order are arbitrary and cannot be sufficiently justified by federal interests. 81. Sections 3 and 5 of the Executive Order target individuals for discriminatory treatment based on their country of origin and/or religion, without lawful justification. 82. For example, Section 3 of the Executive Order suspends entry into the U.S. even of persons holding valid visas to live, work, and study in the U.S. The specific process for applying for each of these visas differs by category, but applicants are always rigorously screened—often by multiple agencies of the U.S. government—before a visa can be approved. The Petition in this case describes the procedures required by the Iraqi Special Immigrant Visa (SIV) program, and the extensive screening applied to Petitioner Hameed Khalid Darweesh between his application for an SIV on or about October 1, 2014 and the visa issuance on January 20, 2017. See Petition ¶¶ 23-30.
-23-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 25 of 33 PageID #: 238
83. Through their actions above, Defendants have violated the equal protection guarantee of the Fifth Amendment.
84. Affected persons who were abroad at the time that the Executive Order was signed have been or will be unable to travel to or return to New York. Affected persons who are currently in New York have been chilled from leaving New York to visit family, conduct business or research, or undertake other lawful activities—including religious travel—for fear of being unable to reenter the United States upon their return.
85. Defendants’ violations cause ongoing harm to individuals who live, work, and study in New York State; to the institutions that employ and educate such persons; and to the communities in which they reside.
86. Defendants’ violations cause ongoing harm to the State of New York itself. Second Cause of Action
(First Amendment-Establishment Clause) 87. The NYAG realleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 88. The Establishment Clause of the First Amendment prohibits the federal government from officially preferring one religion over another. 89. Sections 3 and 5 of the Executive Order are intended to disfavor Islam and favor Christianity, as confirmed by statements made by Defendants concerning their intent and their proposed application of these provisions. 90. The Executive Order suspends entry into the United States of immigrants and nonimmigrants from seven Muslim-majority countries and bans refugees from Syria, also a Muslim-majority country. Several statements by Defendants confirm that this selection of countries was intended to, and in effect does, serve as a proxy for a ban on Muslims entering the
-24-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 26 of 33 PageID #: 239
United States. President Trump has repeatedly expressed his intent to enact a Muslim ban and has intimated on more than one occasion that he would disguise the ban as a facially neutral immigration provision ostensibly based on territory rather than religion. See supra ¶¶ 11-12.
91. The Executive Order favors claims of religious persecution by religious minorities. Although Section 5 of the Executive Order does not on its face specify any particular religious denomination, Defendant Trump’s statements have confirmed that the purpose of this provision is to favor Christianity. See supra ¶ 20.
92. The Executive Order also stigmatizes Islam. By singling out Islam for disfavored treatment, the Executive Order conveys a message to New Yorkers (Muslims and non-Muslims alike) that Islam is uniquely threatening and dangerous. In addition, the Executive Order invokes negative stereotypes about Muslims by referring, for instance, to “honor” killings and other “acts of gender-based violence against women.” In signing the Executive Order, Defendant Trump pledged to “keep radical Islamic terrorists”—as opposed to “terrorists” or “radical terrorists”—“out of the United States.”
93. The Executive Order’s stigmatization of Islam harms New Yorkers. Such stigma threatens to chill Muslims in New York from practicing their religion openly, by causing them to fear hostility from others. For instance, even before the Executive Order was issued, on January 25, 2017, a man at JFK threatened and kicked a Muslim airline worker who was wearing a hijab and then told her, “Trump is here now” and “he will get rid of all of you.”26 This incident demonstrates the real risk that governmental expressions of animus toward Muslims will translate into private violence—risks that are magnified when animus toward Muslims is formalized in official communications such as the Executive Order.
26 Christopher Mele, Man Kicked J.F.K. Airport Worker Wearing Hijab, Prosecutor Says, N.Y. Times (Jan. 26, 2017), https://www.nytimes.com/2017/01/26/nyregion/queens-ny-jfk-attack.html.
-25-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 27 of 33 PageID #: 240
94. Muslims in New York are also injured by the government’s condemnation of their religion, which itself is a cognizable harm under the Establishment Clause.
95. Through their actions above, Defendants have violated the Establishment Clause of the First Amendment.
96. Defendants’ violations cause ongoing harm to individuals who live, work, and study in New York State; to the institutions that employ and educate such persons; and to the communities in which they reside.
97. Defendants’ violations cause ongoing harm to the State of New York itself. Third Cause of Action
(Fifth Amendment-Procedural Due Process) 98. The NYAG realleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 99. The Due Process Clause of the Fifth Amendment prohibits the federal government from depriving individuals of their liberty interests without due process of law. 100. Where Congress has granted statutory rights and has authorized procedures applicable to arriving and present non-citizens, minimum due process rights attach to those statutory rights. For example, many types of U.S. visas authorize the visa-holder to reside and work in the United States for a set period of time, and to bring the visa-holder’s family members to join him or her for the duration of the visa-holder’s authorized stay. 101. The Executive Order and the agency defendants’ implementation of that Order has the effect of generally barring the re-entry into the United States of persons from the seven designated countries even when they hold certain types of U.S. visas and would otherwise be eligible for re-entry into the United States. Such action separates those visa holders from their spouses and children, who may have remained behind in the United States. It also places the
-26-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 28 of 33 PageID #: 241
holders of employment-related visas at risk of losing their qualifying work. 102. New York has many residents who have been granted legal permanent resident
status, H-1B visas, and other similar authorizations to live and work in the United States. Affected persons who were abroad at the time that the Executive Order was signed have been or will be unable to travel to or return to New York. Affected persons who are currently in New York have been chilled from leaving New York to visit family and conduct business, for fear of being unable to reenter the United States upon their return.
103. The Executive Order deprives New York residents and other individuals of their statutorily granted rights to live and work in the United States without providing them any notice or opportunity to be heard.
104. By their actions, defendants have and are violating the procedural due process rights of such individuals.
105. Defendants’ violations cause ongoing harm to individuals who live, work, and study in New York State; to the institutions that employ and educate such persons; and to the communities in which they reside.
106. Defendants’ violations cause ongoing harm to the State of New York itself. Fourth Cause of Action
(Violation of Federal Statutes and Regulations) 107. The NYAG realleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 108. Individuals arriving at a port of entry in the United States, including those arriving by airplane, are entitled to certain rights and procedures specified by federal immigration laws and regulations. For example, lawful permanent residents, regardless of their country of origin, cannot be summarily excluded from the United States. Even where expedited
-27-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 29 of 33 PageID #: 242
removal procedures would otherwise apply, the relevant provisions state that an immigration officer “shall not order [a lawful permanent resident] removed.” 8 C.F.R. § 235.3(b)(5)(ii).
109. Sections 1158 and 1225 of the INA also entitle aliens present or arriving in the United States to apply for asylum. 8 U.S.C. §§ 1158, 1225.
110. Section 1231 of the INA provides that an alien may not be removed to a country where his or her life or freedom would be threatened on certain specified grounds, and entitles an alien to attempt to make that showing. Id. § 1231(b)(3).
111. The United Nations Convention Against Torture—implemented in the Foreign Affairs and Restructuring Act of 1998, Pub. L. 105-277, div. G, subdiv. B, title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified at 8 U.S.C. § 1231 note)—entitles certain individuals entering the country to apply for asylum, withholding of removal and CAT relief.
112. Federal regulations set out detailed procedures for effectuating these and other statutory rights. For example, where an arriving alien subject to expedited removal “indicates an intention to apply for asylum, or expresses a fear of persecution or torture, or a fear of return to his or her country, the inspecting officer shall not proceed further with removal of the alien until the alien has been referred for an interview by an asylum officer in accordance with 8 C.F.R. 208.30.” See 8 C.F.R. § 235.3(b)(1)(i), (4). If after that interview the asylum officer determines that the person does not have a credible fear of persecution or torture, the person has a right to review of the asylum officer’s determination by an immigration judge. Id. § 235.3(b)(4)(i)(C); see also id. §§ 208.30(g), 1208.30(g)(2).
113. Similarly, where such an individual asserts that he or she is has been granted the status of a lawful permanent resident, refugee, asylee or U.S. citizen, an immigration officer claim must attempt to verify the claim. Id. § 235.3(b)(1)(i), (5). If the officer is unable to do so,
-28-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 30 of 33 PageID #: 243
the officer must, among other things, issue an expedited order of removal and refer the alien to an immigration judge to review the order. Id. § 235.3(b)(1)(i), (5); see also id. § 235.6(a)(2)(ii).
114. On information and belief, individuals arriving from the seven designated countries have been denied the foregoing protections, in violation of the rights and procedures established by federal statutes and regulations.
115. Defendants have therefore violated these statutes and regulations. 116. Upon information and belief, these violations have harmed persons entering New York, including Petitioner Hameed Darweesh, an Iraqi citizen holding a Special Immigrant Visa, who was detained from January 27 through January 28, 2017 at JFK. Although he had a fear of persecution if he was returned to Iraq, he was not offered a credible fear interview. 117. Defendants’ violations cause ongoing harm to individuals who live, work, and study in New York State; to the institutions that employ and educate such persons; and to the communities in which they reside. 118. Defendants’ violations cause ongoing harm to the State of New York itself.
Fifth Cause of Action (Procedural Violation of the Administrative Procedure Act) 119. The NYAG realleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 120. The Administrative Procedure Act, 5 U.S.C. §§ 553 and 706(2)(D), requires that federal agencies conduct formal rule making before engaging in action that impacts substantive rights. 121. In implementing Sections 3 and 5 of the Executive Order, federal agencies have changed the substantive criteria by which individuals from affected countries may enter the United States and have restricted the scope of the protections that such individuals are afforded
-29-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 31 of 33 PageID #: 244
under current laws and regulations. 122. With respect to such individuals, the Executive Order effectively requires
federal agencies to substitute the order’s directives for the nation’s detailed scheme of immigration statutes and regulations, including the provisions of the INA and Title 8 of the Code of Federal Regulations described above. No federal agency has followed the procedures required by the Administrative Procedure Act to amend or rescind the relevant regulations, which remain in force.
123. Through their actions above, Defendants have violated the Administrative Procedure Act.
124. Defendants’ violations cause ongoing harm to individuals who live, work, and study in New York State; to the institutions that employ and educate such persons; and to the communities in which they reside.
125. Defendants’ violations cause ongoing harm to the State of New York itself. Sixth Cause of Action
(Substantive Violation of the Administrative Procedure Act) 126. The NYAG realleges and incorporates by reference the allegations set forth in each of the preceding paragraphs of this Complaint. 127. The Administrative Procedure Act, 5 U.S.C. § 706(2), prohibits federal agency action that is arbitrary, unconstitutional, and contrary to statute. 128. Federal agencies have acted arbitrarily and capriciously by implementing the Executive Order in inconsistent ways and by making conflicting statements about its application. 129. For instance, as recounted above, Customs and Border Protection and the Department of Homeland Security have taken shifting positions on whether and how the Executive Order applies to legal permanent residents. Similarly, it remains unclear whether, as
-30-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 32 of 33 PageID #: 245
State Department officials initially stated, the Executive Order bars dual nationals from the seven affected countries from entering the United States.
130. In implementing Sections 3 and 5 of the Executive Order, federal agencies have taken unconstitutional and unlawful action, and acted arbitrarily and capriciously, in violation of the Administrative Procedure Act.
131. Defendants’ violations cause ongoing harm to individuals who live, work, and study in New York State; to the institutions that employ and educate such persons; and to the communities in which they reside.
132. Defendants’ violations cause ongoing harm to the State of New York itself. PRAYER FOR RELIEF
WHEREFORE the Intervenor-Plaintiff respectfully requests that the Court: a. Assume jurisdiction over this matter; b. Enter a judgment declaring that the Executive Order as a whole, and each of its specific provisions, violates federal law and is otherwise unconstitutional; c. Enjoin Defendants from implementing or enforcing the Executive Order and from detaining any individual and/or barring or removing any individual from the United States pursuant to the Executive Order; and d. Grant any other relief the Court deems necessary and proper.
-31-

Case 1:17-cv-00480-CBA Document 39-1 Filed 02/02/17 Page 33 of 33 PageID #: 246

Respectfully submitted,
ERIC T. SCHNEIDERMAN Attorney General of the State of New York By:

Of Counsel:
Justin Deabler Sania Khan Anjana Samant Assistant Attorneys General Civil Rights Bureau
Adam Pollock Mark Ladov Assistant Attorneys General

________________________
Lourdes M. Rosado* Bureau Chief Jessica Attie Special Counsel Civil Rights Bureau
Anisha Dasgupta Deputy Solicitor General
Andrew W. Amend Senior Assistant Solicitor General
Office of the New York State Attorney General
120 Broadway New York, New York 10271 Tel. (212) 416-8250 Fax (212) 416-8074 Lourdes.Rosado@ag.ny.gov

Dated:

February 2, 2017 New York, New York

* Admission pending.
-32-

Case 1:17-cv-00480-CBA Document 39-2 Filed 02/02/17 Page 1 of 3 PageID #: 247
EXHIBIT B

Case 1:17-cv-00480-CBA Document 39-2 Filed 02/02/17 Page 2 of 3 PageID #: 248

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------------X HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI, on behalf of themselves and others similarly situated,

Petitioners,

and

PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK,

--against—

Intervenor-Plaintiff,

Case No. 1:17-cv-00480-CBA [PROPOSED] ORDER

DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and JAMES T. MADDEN, New York Field Director, CBP,

Respondents. ------------------------------------------------------------------X

This matter came before the Court upon the New York State Attorney General’s Motion to

Intervene in the Combined Petition for Writ of Habeas Corpus and Complaint for Declaratory and

Injunctive Relief. Having read and considered all memoranda of law and other matters presented to

the Court, and upon any hearing in this matter, the Court finds that the New York State Attorney

General is entitled to intervene in this action as of right pursuant to Federal Rule of Civil Procedure

24(a)(2) or, in the alternative, with

Case 1:17-cv-00480-CBA Document 39-2 Filed 02/02/17 Page 3 of 3 PageID #: 249
permission of the Court pursuant to Federal Rule of Civil Procedure 24(b)(1)(B), therefore, IT IS HEREBY ORDERED that:
1. The New York State Attorney General’s Motion to Intervene is GRANTED, and the movant shall be made an Intervenor-Plaintiff in this action.
2. The Proposed Complaint in Intervention attached to the Motion shall stand as the Complaint in Intervention of the New York State Attorney General in this action.
IT IS SO ORDERED.
Dated this ___ day of ________________, 2017
____________________________________ The Honorable Carol B. Amon United States District Judge
Presented by: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York ______________________________ LOURDES M. ROSADO
Civil Rights Bureau Chief JESSICA ATTIE
Special Counsel ANISHA DASGUPTA
Deputy Solicitor General ANDREW W. AMEND
Senior Assistant Solicitor General Office of the Attorney General
of the State of New York

 </s> Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 1 of 22 PageID #: 1336

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al.,
Plaintiffs,
and
PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK,
Intervenor-Plaintiff,
v.
DONALD J. TRUMP, President of the United States, et al.,
Defendants.

17-cv-480-CBA

BRIEF OF MASSACHUSETTS, ILLINOIS, CALIFORNIA, CONNECTICUT, DELAWARE, IOWA, MAINE, MARYLAND, NEW MEXICO, NORTH CAROLINA, OREGON, RHODE ISLAND, VERMONT, VIRGINIA, WASHINGTON, AND THE
DISTRICT OF COLUMBIA AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS’ REQUEST FOR CONTINUING PRELIMINARY RELIEF

LISA MADIGAN Attorney General State of Illinois DAVID FRANKLIN Solicitor General 100 West Randolph Street, 12th Floor Chicago, IL 60601

MAURA HEALEY Attorney General Commonwealth of Massachusetts ELIZABETH N. DEWAR State Solicitor JONATHAN B. MILLER, NO. JM3508 Public Protection & Advocacy Bureau Chief GENEVIEVE C. NADEAU Civil Rights Division Chief One Ashburton Place Boston, MA 02108

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 2 of 22 PageID #: 1337
INTERESTS OF AMICI The Commonwealth of Massachusetts and the State of Illinois, together with the States of California, Connecticut, Delaware, Iowa, Maine, Maryland, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia, submit this brief as amici curiae to support extending the injunctive relief already entered in this case. Among other provisions, the Executive Order at issue in this suit bars all nationals of seven majority-Muslim countries from entering the United States for at least 90 days, halts the entire U.S. Refugee Admissions Program for at least 120 days, and permanently bars all Syrian refugees. See 82 Fed. Reg. 8,977-79. The barred individuals include, among others, persons who have previously been granted valid U.S. visas that otherwise entitle them to work, study, and travel within the amici States. In addition to harming such individuals, the Executive Order also inhibits the free exchange of information, ideas, and talent between the seven designated countries and the amici States, including at the States’ many educational institutions; harms the States’ life sciences, technology, health care, finance, and other industries, as well as innumerable other small and large businesses throughout the States; and inflicts economic harm on the States themselves through both increased costs and immediately diminished tax revenues. While the amici States differ in many ways, all of us welcome and benefit from immigration, tourism, and international-student and business travel—and all of us face concrete, immediate, and irreparable injuries caused by the Executive Order. Indeed, several amici have filed or intervened in lawsuits raising similar claims.1 We all share a strong interest in ensuring
1 See, e.g., Louhghalam v. Trump, No. 17-cv-10154-NMG, Dkt. No. 44 (D. Mass. Feb. 2, 2017); Aziz v. Trump, No. 17-cv-116, Dkt. No. 37 (E.D. Va. Feb. 3, 2017); Washington v. Trump, No. 2:17-cv-00141-JLR, Dkt. No. 1 (W.D. Wash. Jan. 30, 2017).
1

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 3 of 22 PageID #: 1338
that, while this litigation proceeds, the Order does not continue to harm our States and our residents.
ARGUMENT The amici States respectfully submit this brief to the Court in order to highlight the extent to which the public interest and the balance of harms support granting preliminary injunctive relief here. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The public interest weighs strongly in favor of preliminary relief based on the injuries the Executive Order has inflicted not only on individual visa holders and refugees, but also more broadly on the public and the States themselves. States are suffering concrete injuries akin to those being inflicted on businesses and private institutions across the country, as well as injuries to the States’ particular interests in collecting tax revenue, protecting our residents, and enforcing our laws. The immensity of the injuries already caused or immediately threatened by the Order—to our residents, public and private institutions, businesses, state treasuries, and economies as a whole—counsel strongly in favor of maintaining preliminary relief, thus preserving the status quo while the Executive Order’s legality is adjudicated. I. The Widespread Harms Caused by the Executive Order Demonstrate That a Preliminary Injunction Is in the Public Interest. The Executive Order has already caused concrete irreparable harms to the States and our respective residents, institutions, and businesses. These injuries include harms to the States’ public colleges and universities, medical institutions, and tax revenues, as well as to the States’ interests in protecting the health, welfare, and rights of our residents. The injuries outlined
2

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 4 of 22 PageID #: 1339
below are representative of the harms being suffered by States throughout the country.2 And many of these harms are caused directly by effects of the Executive Order on persons who, like the named plaintiffs and proposed class members, hold valid visas or other documents for travel to the United States but do not have lawful permanent residence. Contrary to the suggestion of the federal government, these harms remain live—and of tremendous concern to the amici States.
A. The Executive Order has harmed state colleges and universities, creating staffing gaps, precluding students’ attendance, and imposing additional costs and administrative burdens.
The Executive Order has already irreparably injured—and continues to injure—state colleges and universities, which rely on faculty and students from across the world.
First, the Executive Order has disrupted these institutions’ ability to meet their staffing needs. It prevents and dissuades scholars from coming to our institutions—including scholars who had already committed to filling positions. The harm is deep and widespread. To take just a few examples, the University of Massachusetts has more than 160 employees who are affected by the Executive Order; the University of Illinois has about 30 such employees; the University of Maryland, College Park, includes about 350 such members in its community; and the California State University system has 192 faculty and staff from the seven affected countries.3
2 All of the amici States support the legal arguments put forward in this brief, although the specific harms and other facts described do not all apply to them uniformly. For example, the State of Delaware does not have a state medical hospital and is still in the process of attempting to verify some of the other specified harms incurred by other amici States. 3 See, e.g., Decl. of Marcellette G. Williams, Ph. D., Louhghalam v. Trump, No. 17-cv-10154NMG, Dkt. No. 52-9, at ¶ 4 (D. Mass. Feb. 2, 2017) (describing impact on the University of Massachusetts); Wallace D. Loh, Executive Actions and Staying True to Our Values, https://www.president.umd.edu/executive-actions-and-staying-true-our-values (last visited
3

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 5 of 22 PageID #: 1340
While there is no absolute right to the maintenance or continuation of a visa, our state educational institutions—like so many employers—rely on a degree of predictability in the visa system. Moreover, foreign-born faculty who are here on visas typically have specialized expertise that cannot easily be replaced. Colleges and universities have already formed task forces and are making contingency plans to fill the unexpected gaps in their faculty rosters caused by the exclusion of scholars from the seven designated countries, but there is no guarantee that they will be able to fill such gaps. These efforts have already required a considerable expenditure of scarce resources.4
These harms caused by the Executive Order are neither elective nor speculative. To the contrary, the amici States are aware of many staffing-related harms to specific programs in our States. For example, foreign scholars from the designated countries who hold duly issued, otherwise-valid J-1 visas have abandoned their plans to come to the United States and teach because of the Executive Order. In some such cases, the scholars were hired to teach during the spring semester of 2017. Their absences leave holes in faculty rosters that our institutions must immediately fill. A second example arises from our research labs. They depend greatly on the work of foreign post-doctoral researchers to complete critical projects and studies, many of which are grant-funded. A shortfall of such researchers puts public institutions in peril of losing
February 8, 2017). The Illinois figure was provided to the Office of the Illinois Attorney General by the general counsel of the University of Illinois. The California figure is based on information provided to the Office of the California Attorney General by the Assistant Vice Chancellor of International and Off-Campus programs at the California State University System. 4 See, e.g., Decl. of Michael F. Collins, MD, Louhghalam v. Trump, No. 17-cv-10154-NMG, Dkt. No. 52-2, at ¶¶ 4-5 (D. Mass. Feb. 2, 2017) (describing creation of task force at the University of Massachusetts Medical School); Decl. of Marcellette G. Williams, Ph. D., supra n.3, ¶¶ 8, 10 (describing investment of resources in faculty hiring at the University of Massachusetts and the additional costs and burdens caused by the Executive Order).
4

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 6 of 22 PageID #: 1341
grant funding. The amici States are aware of specific affected researchers who have accepted offers of employment but are still awaiting visas abroad, their prospects of timely assuming their positions now deeply uncertain.5
Additional disruption has occurred in the context of medical residency staffing, endangering the health of our communities. State medical schools participate in a “match” program that assigns residents to university hospital programs. These medical residents perform crucial services, including providing medical care to underserved populations. The process has already begun, with candidate applications and interviews largely completed; medical schools’ rankings of future residents due on February 22; the computerized “match” scheduled for March 17; and matched residents expected to begin work on July 1. Many programs regularly match medical residents from the seven designated countries. Indeed, prior to the Executive Order, institutions like the University of Massachusetts Medical School already were actively considering and had interviewed specific applicants from the affected countries. These programs now must forgo ranking applicants from these countries or risk having insufficient medical residents to meet staffing needs when their preferred choices are precluded from obtaining a visa or banned from entry even if they have one.6
5 See, e.g., Decl. of Michael F. Collins, MD, supra n.4, ¶ 9 (describing importance of work done by post-doctoral students, as well as two cases of individuals from the affected countries who had accepted employment offers from the University of Massachusetts Medical School); Decl. of Marcellette G. Williams, Ph. D., supra n.3, ¶ 8 (noting that the University of Massachusetts spent $650 million on research in 2016 and describing risks to research funding). 6 If a program “matches” with an applicant who is then unable to come into the country, the program is left with an open slot. The only way to fill the slot is to seek a waiver from the National Resident Matching Program. Such a waiver puts a medical school in the difficult position of trying to hire a resident from the pool of applicants who did not match anywhere
5

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 7 of 22 PageID #: 1342
Second, the Executive Order creates uncertainty and imposes additional costs related to nonimmigrant faculty and other employees already in the United States. At the University of Massachusetts, for example, 42 current employees from the affected countries are due to submit applications to the U.S. Citizenship and Immigration Service this year, including for visa renewals.7 Because of the freeze of at least 90 days on processing visa applications under section 3(c) of the Executive Order, state institutions will in some cases be forced to pay an additional $1,225 fee per visa for “Premium Processing Service” to expedite the approval of certain eligible visas—and will still have no guarantee that visas will be issued.8 These additional costs are significant for our resource-constrained public institutions.
Third, the Executive Order has disrupted the admissions process for students, imperiling millions of tuition dollars. Our state colleges and universities enroll thousands of students from the designated countries. The California State University System has more than 1,300 such students who are lawful permanent residents and more than 250 with student visas.9 The University of California system’s ten campuses have almost 500 graduate students and 40 undergraduates from the seven countries;10 the University of Massachusetts has 300 such
else—and the school may be unable to find a resident at all. These problems are described in detail in the Declaration of Michael F. Collins, MD, supra n.4, at ¶¶ 5-8. 7 Decl. of Marcellette G. Williams, Ph. D., supra n.3, ¶ 6. 8 Information regarding U.S. Citizenship and Immigration Services’ expediting service, including the fee, is available at https://www.uscis.gov/i-907 (last visited February 8, 2017). 9 This figure is based on information provided to the California Attorney General’s Office by the Assistant Vice Chancellor of International and Off-Campus programs at the California State University System. 10 See Teresa Watanabe and Rosanna Xia, Trump Order Banning Entry from Seven MuslimMajority Countries Roils California Campuses, Los Angeles Times (January 30, 2017),
6

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 8 of 22 PageID #: 1343
graduate and undergraduate students;11 the University of Illinois has over 300 students;12 the University of Washington has more than 95 students;13 and the number at Washington State University is over 135.14 Other public institutions such as the Pennsylvania State University,
Texas A&M University, the University of Central Florida, the University of Houston System, the
University of Texas at Arlington, and Arizona State University each have hundreds of affected students.15
The Executive Order not only interferes with the matriculation of future students from the
seven designated countries but also severely harms and jeopardizes the continued enrollment of
current students by preventing them from travelling for research, conferences, and family visits.16 The amici States’ public colleges and universities have already offered admission to
students from the affected countries, and they anticipate that—but for the Executive Order—they
would admit many more over the coming months. Already, the amici States are aware of
students who have had to abandon plans to enroll due to the Executive Order and others who
have withdrawn applications entirely. As a result, these public institutions must now alter their
http://www.latimes.com/local/california/la-me-trump-universities-20170130-story.html (last visited February 8, 2017). 11 See Decl. of Marcellette G. Williams, Ph. D., supra n.3, ¶ 3. 12 This figure was provided to the Office of the Illinois Attorney General by the general counsel of the University of Illinois. 13 See Decl. of Jeffrey Riedinger, Washington v. Trump, No. 2:17-cv-00141-JLR, Dkt. No. 9, at 2 ¶ 5 (W.D. Wash. Jan. 30, 2017). 14 See Decl. of Asif Chaudhry, Washington v. Trump, No. 2:17-cv-00141-JLR, Dkt. No. 5, at 2 ¶ 5 (W.D. Wash. Jan. 30, 2017). 15 Abby Jackson, The 10 U.S. Colleges That Stand to Lose the Most from Trump’s Immigration Ban, Business Insider (Feb. 1, 2017), https://amp.businessinsider.com/colleges-potentially-mostaffected-trump-immigration-ban-2017-2. 16 See, e.g., Decl. of Marcellette G. Williams, Ph. D., supra n.3, at ¶¶ 8-9.
7

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 9 of 22 PageID #: 1344
admissions processes to account for students who can no longer attend. While colleges and universities are always subject to federal immigration law and policy, the Executive Order has injured them unexpectedly, by upending with no advance notice the established framework around which these institutions have designed their enrollment processes.17
Finally, the amici States are aware of specific instances where the Executive Order has already caused harm to our institutions’ core missions of education and scholarship. Graduate and undergraduate students who traveled to see families abroad over winter break have been trapped outside the United States, unable to attend classes; faculty hires have been unable to reach the United States; and faculty and doctoral students who are in the United States have been prevented from traveling abroad for fieldwork or conferences because they cannot risk being unable to reenter. In some cases, such travel is necessary to complete a dissertation or remain on the tenure track.18
B. The Executive Order has disrupted staffing and research at state medical institutions.
The Executive Order has already harmed the amici States’ medical institutions in a number of respects and threatens to inflict further irreparable harms. In addition to disrupting the medical residency matching process described above, the Executive Order also disrupts the continued training of affected medical residents who are already in our States and serving our patient populations. If such residents are unable to renew or extend their nonimmigrant visas,
17 See, e.g., Decl. of Marcellette G. Williams, Ph. D., supra n.3, ¶ 9 (describing admissions offers already extended to students from the affected countries as well as effects on current students). 18 See, e.g., id. (describing harms to specific individuals, including to doctoral student who returned home to get married and was unable to return as of February 2, 2017 and to faculty member who was prevented from attending conference needed for tenure).
8

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 10 of 22 PageID #: 1345
state medical schools can no longer employ them; the schools will be left with unfilled positions in their multi-year programs for training physicians; and staffing gaps will open at hospitals. The health and well-being of the residents of the amici States will suffer. The primary care program at the University of Massachusetts Medical School, for example, currently has medical residents from the designated countries under employment contracts at a time when primary care physicians are in short supply in many areas across the country.19
Public medical institutions also employ people from the designated countries in other positions, including as fully trained physicians, research faculty, and post-doctoral researchers. As with our educational institutions, the amici States have current employees, already located in the United States and serving patients here, who, for the time being, cannot renew or extend their visas or statuses. In addition, public medical institutions in the amici States have extended offers of employment that have already been accepted by individuals from the designated countries. But these would-be employees are now waiting for visas to be approved and are uncertain if and when they will be able to start work.20
Because our patients must be cared for, our facilities must immediately adapt to these changed circumstances—and spend precious time and resources to do so. The risks posed by understaffing medical facilities are of course among the gravest irreparable harms that could befall our residents.
19 Louhghalam v. Trump, No. 17-cv-10154-NMG, Dkt. No. 25-1, at 12 (D. Mass. Jan. 31, 2017). 20 See, e.g., Decl. of Michael F. Collins, MD, supra n.4, ¶ 9.
9

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 11 of 22 PageID #: 1346
C. The Executive Order has immediately reduced States’ tax revenues and is harming our economies more broadly.
From the moment of its implementation, the Executive Order has also caused the States to lose tax revenues—economic damage that cannot be undone. Every foreign student, tourist, and business visitor to the amici States contributes to our respective economies. They do so not only by direct payments, including tuition, room, and board payments to state schools, but also through the tax receipts that their presence generates. The Executive Order abruptly blocked thousands of travelers—potential consumers all—from entering the amici States, thereby halting their tax contributions as well. When the Executive Order went into effect, “tens of thousands of visas” for U.S.-bound travelers immediately were revoked, with the State Department later confirming that roughly 60,000 individuals’ visas were provisionally revoked.21 And preliminary reports already suggest a significant downturn in international tourists traveling to the United States following release of the Executive Order.22
Absent continuing preliminary relief during the pendency of challenges to the Executive Order, the amici States will lose weeks or even months of otherwise available tax revenues. The States will never recover these revenues, even if those challenges ultimately prevail. The dollars at issue are immense, even just with respect to the contributions of foreign students. California
21 See Rachel Revesz, Donald Trump Immigration Ban: 60,000 Visas Revoked After Travel Restrictions Imposed on Seven Muslim-Majority Countries, The Independent (Feb. 3, 2017), available at http://ind.pn/2l0eovf (last visited February 8, 2017). 22 See, e.g., Christopher Muther, Trump’s Travel Ban Is Causing a Large Drop in US Tourism, Boston Globe (Feb. 14, 2017), available at http://www.bostonglobe.com/lifestyle/travel/2017/02/14/trump-ban-causes-tourism-drop-andindustry-fears-lasting-effect/yzMAVzeLvqywP8gEekoFsL/story.html (last visited Feb. 14, 2017) (citing drops of 6 to 17 percent in online booking searches for international flights to the United States).
10

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 12 of 22 PageID #: 1347
universities and colleges host the largest number of students from the seven designated countries,
with 1,286 student visa-holders from Iran alone in 2015.23 In Illinois, students from these
countries contributed $30.3 million to the State’s economy, including direct payments for tuition,
fees, and living expenses.24 And these amounts do not include indirect economic benefits, such
as the contributions of international students and scholars to innovation in academic and medical
research. These States, of course, are not the only ones affected. The seven countries singled
out by the Executive Order account for more than 16,000 students who attended institutions of
higher education nationally during the 2014-15 academic year.25 During that period, Iran alone
sent 11,338 students to colleges and universities across the United States, yielding an estimated
economic impact of $323 million.26
The Executive Order has also already inflicted harms on the amici States’ economies
more broadly—even if those harms will not be fully quantifiable for some time. The health of
our economies depends in large part on remaining internationally competitive and attractive
23 See Watanabe & Xia, Trump Order Banning Entry from Seven Muslim-Majority Countries Roils California Campuses, supra n.10. 24 See id. 25 See Institute of International Education, Open Doors Data, International Students: All Places of Origin, http://bit.ly/1ObpkM2 (last visited February 8, 2017). 26 See Institute of International Education, Open Doors Data, Fact Sheets for Iran: 2015, http://bit.ly/2lmPhjg (last visited February 8, 2017). By way of further information, the California Governor’s Office of Business and Economic Development has been able to determine, with respect to Middle Eastern countries (including four of the seven affected countries—Iran, Iraq, Syria, and Yemen—as well as twelve additional countries besides: Egypt, Bahrain, Cyprus, Israel, Jordan, Kuwait, Lebanon, Oman, Qatar, Saudi Arabia, Turkey, and United Arab Emirates), that, in 2015, 286,000 visitors from these countries spent approximately $681,000,000 in California, all subject to state and local taxes. These travelers are conservatively estimated to have generated a total of $49,372,500 in state and local tax revenue. Using this estimate, during a 90-day period, these travelers generate $12,174,041 in state and local tax revenue.
11

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 13 of 22 PageID #: 1348
destinations for companies in the life sciences, technology, finance, health care, and other industries, as well as for tourists and entrepreneurs. In Illinois alone, for example, 22.1% of entrepreneurs are foreign-born; immigrant- and refugee-owned businesses employ more than 281,000 people; and immigrants represent 37.7% of the State’s software developers.27 A recent study found that if even half of the more than 3,900 foreign-born graduates of Illinois universities in so-called STEM fields (science, technology, engineering, and mathematics) stayed in the United States after graduation, it could result in the creation of more than 5,100 new jobs for U.S.-born workers by 2021.28 Similarly, in the State of Washington, immigrant and refugeeowned businesses employ 140,000 people.29 In addition, Washington’s technology industry relies heavily on the H-1B visa program, with Redmond-headquartered Microsoft alone employing nearly 5,000 people through that program.30 Other Washington companies, including Amazon, Expedia, and Starbucks, likewise employ thousands of H-1B visa holders.31 Loss of these highly skilled workers puts companies across the United States at a disadvantage with their global competitors.32
27 See The Contributions of New Americans in Illinois at 2, 10 New American Economy (Aug. 2016), http://bit.ly/2kRVaro (last visited February 8, 2017). 28 Id. at 13. 29 See Mot. for Temporary Restraining Order, Washington v. Trump, No. 2:17-cv-00141-JLR, Dkt. No. 3, at 22 (W.D. Wash. Jan. 30, 2017). 30 Id. 31 Id. 32 See Br. for Technology Companies and Other Businesses as Amici Curiae In Support of Appellees at 8-21, Washington v. Trump, No. 17-35105, Dkt. 19-2 (9th Cir. Feb. 5, 2017).
12

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 14 of 22 PageID #: 1349
D. The Executive Order is also harming the States’ interests in protecting our residents and enforcing our laws.
The Executive Order’s harms to the States and to the broader public go beyond these significant harms in the educational, health, and economic realms, however. The Order also harms the amici States’ abilities to protect “the well-being of [our] populace,” including via our anti-discrimination laws, and to ensure that our “residents are not excluded from the benefits that are to flow from participation in the federal system.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601-08 (1982).
First, the Executive Order prevents States from enforcing regimes of non-discrimination created by our state constitutions and laws. Our residents and businesses—and, indeed, many of the amici States ourselves—are prohibited by state law from taking national origin and religion into account in determining to whom they can extend employment and other opportunities.33 Although the States, as well as our residents and businesses, are always constrained in employment decisions by validly enacted federal immigration law, the Executive Order is unlawful and represents an act of unconstitutional discrimination—one that the States are nevertheless constrained to follow, contrary to our federal Constitution and contrary to our own laws.
Second, the Executive Order also harms the States’ interests by violating the due process rights of a substantial number of our residents. Cf. Snapp, 458 U.S. at 607-608. In particular, by
33 See, e.g., Cal. Const. art. I, §§ 7-8; Cal. Gov’t Code §§ 11135-11137, 12900 et seq.; Conn. Gen. Stat. § 46a-60; Ill. Const. art. I, § 3; Ill. Const. art. I, § 17; 740 ILCS 23/5 (a)(1); 775 ILCS 5/1-102 (A); 775 ILCS 5/10-104 (A)(1); 5 Maine Rev. Stat. Ann. §§ 784, 4551-4634 (2013); Mass. Gen. L. ch. 151B, §§ 1, 4; Mass. Gen. L. ch. 93, § 102; Md. Code Ann., State Gov’t § 20-606; R.I. Gen. Laws § 28-5-7(1)(i); 9 Vt. Stat. Ann. §§ 4500-07; 21 Vt. Stat. Ann. § 495.
13

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 15 of 22 PageID #: 1350
denying re-entry to the United States without constitutionally sufficient notice and an opportunity to respond, the Executive Order violates or threatens to violate the due process rights of non-immigrant residents holding multiple-entry visas (as well as lawful permanent residents) who have already been in the United States but who have temporarily departed or wish to temporarily depart. See State of Washington et al. v. Trump et al., No. 17-35105, __ F.3d __, 2017 WL 526497, at *7-*9 (9th Cir. Feb. 9, 2017) (per curiam); see also Landon v. Plasencia, 459 U.S. 21, 33 (1982). II. The Balance of Harms Tips Decidedly in Favor of Maintaining Preliminary
Injunctive Relief, Because Lifting Such Relief Would Upend the Status Quo. All of the harms just described—harms inflicted directly by the Executive Order on the amici States and our residents—demonstrate why the public interest strongly favors a preliminary injunction against the Executive Order. For similar reasons, the balance of harms also favors such relief. Unlike in a typical case, it is the temporary relief entered by this Court and other courts across the country that has preserved the status quo.34 Eliminating that relief would cause untold further harm. The Executive Order abruptly and presumptively bars entry into the United States for all nationals of the seven affected countries, even if they are otherwise lawfully authorized to enter or re-enter this country on the basis of valid immigration documents previously issued by U.S.
34 See, e.g., Washington v. Trump, 2017 WL 526497, at *7 (declining to stay nationwide temporary restraining order against entire Executive Order); Aziz v. Trump, No. 17-cv-116, Dkt. Nos. 111, 112 (E.D. Va. Feb. 13, 2017) (granting preliminary injunction); Mohammed v. United States, No. 17-cv-00786, Dkt. No. 7 (C.D. Cal. Jan. 31, 2017) (temporary restraining order that, among other provisions, blocked government from removing, detaining, or blocking entry of the 28 Yemeni-born plaintiffs or any person from any of the seven countries holding a valid immigrant visa).
14

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 16 of 22 PageID #: 1351
authorities. Residents of the amici States have been prevented from traveling home, and their
family members have been prevented from visiting them. Indeed, after the Order was issued,
many such persons were detained at airports throughout the United States—often without access to counsel—when they attempted to enter the country.35 For example, preliminary reports
indicate that 376 people were detained at Los Angeles International Airport from January 28 to
February 6, many of them for 10 hours or more. Of those detained, 160 were lawful permanent
residents, and 92 were not even from the seven affected countries. Numerous long-term and
temporary residents of the amici States were victims of the resulting turmoil, which also broadly
disrupted travel at all major United States airports, both in the amici States and beyond.
These harms have been exacerbated by the government’s shifting and inconsistent
implementation of the Executive Order. Customs and border control officials arrived at airports on January 28 without instructions on how to implement it.36 The lack of advance warning led to “homeland security officials ‘flying by the seat of their pants[]’ to try to put policies in place.”37 Officials at different airports applied different policies.38 This uncertainty was compounded by
35 Michael D. Shear et al., Judge Blocks Trump Order on Refugees Amid Chaos and Outcry Worldwide, N.Y. Times (Jan. 28, 2017), https://goo.gl/OrUJEr (last visited February 8, 2017); Amanda Whiting, Despite Court Order, US Officials Won’t Allow Lawyers at Dulles to See Detainees, Washingtonian (Jan. 29, 2017), https://www.washingtonian.com/2017/01/29/customs-and-border-protection-still-not-allowinglawyers-to-see-detainees/ (last visited February 8, 2017). 36 Id. 37 Id. 38 See, e.g., Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017), www.reuters.com/article/us-usa-trumpimmigration-confusion-idUSKBN15D07S (last visited February 8, 2017) (while some visaholders reported being “allowed into the country without a problem,” other lawful permanent residents were “turned away”).
15

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 17 of 22 PageID #: 1352
the actions of officials at the highest levels of the federal government, who vacillated over how to interpret and apply the Executive Order. For example, the federal government wavered multiple times about whether the Executive Order applies to lawful permanent residents.39 On February 1, the White House counsel acknowledged that there had been “reasonable uncertainty” about whether the travel ban applies to lawful permanent residents of the United States, and purported to “clarify that Sections 3(c) and 3(e) [of the Order] do not apply to such individuals.”40 However, “[t]he Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President,” nor has “the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing” it. Washington v. Trump, 2017 WL 526497, at *8.
The temporary relief issued by this Court and others returned the policies and procedures regarding travel to the United States to the status quo that existed before the Executive Order. Faced with these orders, the Department of Homeland Security announced on February 4 that it “has suspended any and all actions implementing the affected sections of the Executive Order”
39 See, e.g., Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban (Jan. 30, 2017), http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/index.html (last visited February 8, 2017); Press Release, U.S. Department of Homeland Security, Statement By Secretary John Kelly On The Entry Of Lawful Permanent Residents Into The United States (Jan. 29, 2017), https://goo.gl/6krafi (last visited February 8, 2017). 40 See Memorandum to the Acting Secretary of State, the Acting Attorney General, and the Secretary of Homeland Security from Donald F. McGahn II (Feb. 1, 2017), www.politico.com/f/?id=00000159-fb28-da98-a77d-fb7dba170001 (last visited February 8, 2017).
16

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 18 of 22 PageID #: 1353
and would “resume inspection of travelers in accordance with standard policy and procedure.”41
In the aftermath of that announcement, international airlines announced that they would again
allow citizens of the affected nations onto flights bound for the United States.42 Travelers from
these countries have already arrived in the United States or are in the process of coming here.43
In the absence of continued preliminary relief, our States will see a return of the chaos
experienced in our airports beginning on the weekend of January 28 and 29. Travelers with valid
visas to enter the United States, who boarded planes to our country in reliance on the order below
and the guidance of the Department of Homeland Security, will be stopped, detained, and turned
around yet again. And serious harms will continue to fall on the affected individuals who live,
work, and study in our States; to their families and communities; and to the institutions and
businesses that employ and educate them. Our universities will continue to face uncertainty
about whether affected students will be allowed to resume their studies;44 our businesses will not
41 Press Release, U.S. Department of Homeland Security, DHS Statement on Compliance with Recent Court Order (Feb. 4, 2017), available at https://www.dhs.gov/news/2017/02/04/dhsstatement-compliance-recent-court-order (last visited Feb. 5, 2017). 42 A. Dewan, Airlines Allow Passengers After Judge Blocks Travel Ban (Feb. 4, 2017), available at http://www.cnn.com/2017/02/04/politics/airlines-airports-trump-travel-ban/index.html (last visited Feb. 5, 2017). 43 See, e.g., D. Lavoie et al., Travelers Arrive in the U.S. to Hugs and Tears After the Lifting of Trump’s Immigration Ban, Time (Feb. 6, 2017), available at http://time.com/4660709/trumptravel-ban-lifted-muslim-immigration/ (last visited Feb. 10. 2017). 44 See Class Action Compl. for Declaratory and Injunctive Relief ¶¶ 45-48, Al-Mowafak v. Trump, No. 17-cv-557, Dkt. No. 1 (N.D. Cal. Feb. 2, 2017) (describing case of Wasim Ghaleb, a Yemeni national currently studying business administration at Grossmont College in San Diego on a valid F-1 visa, who traveled to Saudi Arabia for a family trip on January 15, 2017 and who is being prevented from returning to the United States because of the Executive Order); see also First Am. Pet. for Writ of Habeas Corpus and Class Compl. for Declaratory and Injunctive Relief ¶¶ 18, 52-54, 71, Aziz v. Trump, No. 17-cv-116, Dkt. No. 7 at 39 (E.D. Va. Feb. 3, 2017) (detailing additional instances of individuals traveling abroad who are unable to return because of the Executive Order).
17

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 19 of 22 PageID #: 1354
know if and when affected employees will be allowed to return to their offices; 45 and a broad
swath of our residents will be unable to visit with overseas family members or return home if they do.46 The discretionary waiver provisions in the Executive Order do not mitigate these
harms: universities and businesses and residents cannot plan effectively if there is no guidance
from the federal government on how its waiver system will be implemented. See Washington v.
Trump, 2017 WL 526497, at *11 (noting that the federal government “has offered no explanation
for how these provisions would function in practice: how would the ‘national interest’ be
determined, who would make that determination, and when?”).
Under these circumstances, the balance of harms tips decidedly in favor of leaving
preliminary relief in place in order to preserve the status quo that existed before President Trump
issued the Executive Order. In contrast to the abstract injuries that the federal government
asserts it has suffered, allowing the Order to go back in force would lead to real and immediate
hardships for the States, our residents, businesses, and institutions. The interests of the public,
the States, and the Nation would be best served by entering a preliminary injunction—and
avoiding further turmoil—until the very significant constitutional and other legal challenges to
45 See Decl. of Ayesha Blackwell-Hawkins, Esq., Washington v. Trump, No. 17-cv-141, Dkt. No. 6 (W.D. Wash., Jan. 30, 2017) (declaration of Amazon employee stating that company’s employees may not be able to travel and that company has instructed one lawyer not to make a business trip to the United States for fear of detention); see also Jack Nicas, Google Criticizes Impact on Staff of Trump Immigration Order, Wall St. J. (Jan 28., 2017), available at https://www.wsj.com/articles/google-criticizes-impact-on-staff-of-trump-immigration-order1485596067 (last visited Feb. 5, 2017) (reporting on e-mail from Google’s CEO that expressed concern that its employees will not be able to return from abroad). 46 Jared Maslin, “It’s Tearing Families Apart.” 6 Stories of Lives on Hold Due to Trump’s Visa Ban, Time (Feb. 2, 2017), available at http://time.com/4649876/donald-trump-visa-banexecutive-order-lives/ (last visited Feb. 5, 2017) (Iraqi-born U.S. citizen returned to Iraq to help his wife apply for a visa; and although wife procured a visa, officials will not let her enter the United States because of Executive Order; the couple remains in Iraq).
18

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 20 of 22 PageID #: 1355

the Executive Order are more conclusively resolved. See id. at *7-*11 (concluding in connection with stay application that federal government had failed to show strong likelihood of success on the merits and that the balance of hardships favored maintaining temporary relief).

Dated: February 16, 2017
LISA MADIGAN Attorney General State of Illinois DAVID FRANKLIN Solicitor General 100 West Randolph Street, 12th Floor Chicago, IL 60601
XAVIER BECERRA Attorney General State of California Suite 11000 455 Golden Gate Avenue San Francisco, CA 94102
GEORGE JEPSEN Attorney General State of Connecticut 55 Elm Street Hartford, CT 06106

Respectfully submitted,

MAURA HEALEY Attorney General Commonwealth of Massachusetts

. /s Jonathan B. Miller

.

ELIZABETH N. DEWAR

State Solicitor

JONATHAN B. MILLER, NO. JM3508

Public Protection & Advocacy

Bureau Chief

GENEVIEVE C. NADEAU

Civil Rights Division Chief

One Ashburton Place

Boston, MA 02108

HECTOR BALDERAS Attorney General State of New Mexico 408 Galisteo Street Santa Fe, NM 87501

JOSH STEIN Attorney General State of North Carolina 9001 Mail Service Center Raleigh, NC 27699

19

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 21 of 22 PageID #: 1356

MATTHEW P. DENN Attorney General State of Delaware Carvel State Building, 6th Floor 820 North French Street Wilmington, DE 19801
KARL A. RACINE Attorney General District of Columbia Suite 630 South 441 Fourth Street, N.W. Washington, D.C. 20001
THOMAS J. MILLER Attorney General State of Iowa 1305 E. Walnut Street Des Moines, IA 50319
JANET T. MILLS Attorney General State of Maine 6 State House Station Augusta, ME 04333
BRIAN E. FROSH Attorney General State of Maryland 200 Saint Paul Place, 20th Floor Baltimore, MD 21202

ELLEN F. ROSENBLUM Attorney General State of Oregon 1162 Court Street NE Salem, OR 97301
PETER F. KILMARTIN Attorney General State of Rhode Island 150 South Main Street Providence, RI 02903
THOMAS J. DONOVAN, JR. Attorney General State of Vermont 109 State Street Montpelier, VT 05609
MARK R. HERRING Attorney General Commonwealth of Virginia
202 North 9th Street Richmond, Virginia 23219
ROBERT W. FERGUSON Attorney General State of Washington 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100

20

Case 1:17-cv-00480-CBA Document 128 Filed 02/16/17 Page 22 of 22 PageID #: 1357

CERTIFICATE OF SERVICE I, Jonathan B. Miller, hereby certify that a true copy of the above document, filed through the CM/ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing and paper copies will be sent to those indicated as non-registered participants on this date.

Dated: February 16, 2017

/s Jonathan B. Miller

x

Jonathan B. Miller

21

 </s> Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 1 of 40 PageID #: 1429

UNITED STATES DISTRICTCOURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al.,

Petitioners,
and
PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK ,
Intervenor-Plaintiff, v.
DONALD TRUMP, President of the United States, et al.,
Respondents.

Civil Action No. 1:17-cv-00480 (CBA)
(Amon, J.)

BRIEF OF ASSOCIATION OF AMERICAN UNIVERSITIES AS AMICUS CURIAE IN SUPPORT OF PETITIONERS' REQUESTED RELIEF

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 2 of 40 PageID #: 1430

TABLE OF CONTENTS

Page

INTRODUCTION

1

I. The Free Exchange of Information, Ideas, and Scholars Across Borders Is Vital to

Americna Interests.

4

A. Universities and Their Communities Rely and Thrive on the Cross-Border

Exchange of Ideas and People.

4

B. Intenrational Students and Scholars Bolster the Americna Economy and

Strengthen Our Democracy

8

II. The Executive Order Directly Threatens Academic Exchange with International

Students and Scholars.

16

A. Students and Scholars at AAU Member Universities Have Been Directly

Impacted by the EO.

18

B. The EO Will Have Continuing Adverse Effects on Open Academic

Exchange and, by Extension, Our National Interests.

23

CONCLUSION

29

1

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 3 of 40 PageID #: 1431
INTRODUCTION The Association of Americna Universities (AAU) is a non-profit organization, founded in 1900 to advance the intenrational standing of United States research universities. AAU's mission is to shape policy for higher education, science, and innovation; promote best practices in undergraduate and graduate education; nad strengthen the contributions of research universities to society. Its members include 62 public and private research universities.1 Although 60 of AAU's member universities are located in the United States, each is patr of a far greater worldwide network of leanring, research, and education. Together, AAU members enroll tens of thousands of students from all over the United States and the world in undergraduate, graduate, and professional degree programs. They also employ faculty and researchers from around the globe. These international scholars routinely publish pioneering peer-reviewed work in virtually all fields of knowledge. Many have gone on to invent groundbreaking technology, start thriving businesses, and assume leadership roles in governments and other organizations, both in this country and abroad. As the President and Provost of the University of Virginia, an AAU member, succinctly stated: Being a great university in the 21st century means being a global university, and our entire University community is enriched and enlightened by interacting with teachers and students from other nations. Providing these experiences is an investment in the future as we seek to build intenrational cooperation and peace. Higher education leaders around the world continue to emulate America's colleges and universities because of the excellence we have achieved in teaching,
1 A complete list of AAU members is available at: http://www.aau.edu/about/default . aspx?id=16710.
On February 3, 2017, four AAU members—Boston University, Brandeis University, Harvard University, and Massachusetts Institute of Technology—filed a substantially similar amicus curiae brief that was joined by several non-AAU members in Louhghalam v. Trump, No. 1:17-cv-10154-NMG (D. Mass), ECF No. 68.
1

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 4 of 40 PageID #: 1432

research, and innovation, and an essential element of that excellence is our openness to people from other nations.2

Duirng the past three weeks, AAU members have seen their law-abiding students

stranded abroad, and their law-abiding faculty members prevented from travelling to and from

foreign countries. Scholars based abroad are pulling out of academic conferences in the United

States, either because they are directly affected by the travel bna or because they are concenred

about the EO's harmful impact on academic discourse and research worldwide. And potential

recruits have expressed serious doubts about attending or teaching at AAU schools. These

consequences directly threaten the ability of AAU's member universities to fulfill their

commitments to serving their students, their communities, the United States, and the world

through innovative teaching and research. That commitment relies on maintaining a consistent

pipeline of the most talented international students and scholars, who bring with them unique

skills and perspectives that inure to the benefit of their classmates, colleagues, and society. And

after receiving first-class educations in the United States, the benefits then lfow in the opposite

direction, as those students and scholars take back to their countries the lessons and values they

leanred here.

AAU also is committed to the secuirty of its members' campuses and of the United

States. Each member university places the highest priority on the safety of its students and

scholars, and recognizes that secuirty is essential to maintaining a productive learning

environment. As AAU President Mary Sue Coleman has emphasized, AAU recognizes "the

importance of a strong visa process to our nation's security

That is why we have worked

2 Letter from Teresa Sullivan, President, and Tom Katsouleas, Executive Vice President and Provost, to the University of Virginia Community (Jan. 29, 2017), https://news.virginia.edu/ content/uva-president-provost-address-immigration-issues. Statements from leaders of other AAU members are available at: http://www.aau.edu/policy/article.aspx?id=18367.
2

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 5 of 40 PageID #: 1433
closely with previous administrations, especially in the wake of 9/11, to ensure our visa system prevents entry by those who wish to harm us, while maintaining the inflow of talent that has contributed so much to our nation. "3
At the same time, it is essential that we maintain our deep commitment to ensuring the free flow of ideas and people that are critical to progress in a democratic society. The inquiry, innovation, and invention that take place every day within our members' classrooms, libraries, and laboratories depend on the ability of scholars and students to travel to and from the United States. Without that ability, academic achievement and the many economic and social benefits that such achievement generates are profoundly at risk.
For these reasons, AAU submits this brief to provide information to this Court about the serious effects of the January 27, 2017 Executive Order (EO), entitled "Protecting the Nation from Foreign Terrorist Entry into the United States," on the open academic exchange and collaboration that are essential to AAU members. 4 Like many other academic institutions, AAU's members "have a mission of 'global engagement' and rely on . . . visiting students, scholars, and faculty to advance their educational goals." State of Washington v. Trump, No. 1735105, 2017 WL 526497, at *4 (9th Cir. Feb. 9, 2017). The EO undercuts that vital mission and impairs the cross-border exchange of ideas that is critical to our members' success as educational
3 Press Release, AAU, AAU Urges Quick End to Administration Order Barring Returning Students and Faculty (Statement by Association of Americna Universities President Mary Sue Coleman) (Jan. 28, 2017), http://www.aau.edu/news/article.aspx?id=18366.
4 Thi• s bri• ef focuses on effects of the EO. A broader range of concerns expressed by individual universities may be found at: David Comp, Running List of University/College and Higher Education Organization/Association Responses to President Trump's Executive Order Entitled "Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals" Issued Jan. 27, 2017, Intl Higher Ed. Consulting Blog, http://ihecdjc.blogspot.com/2017/01/rurming-list-of-universitycollege-and.html (last visited Feb. 12, 2017).
3

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 6 of 40 PageID #: 1434
institutions and the ability of our members to contribute to the success of the country as a whole. I. The Free Exchange of Information, Ideas, and Scholars Across Borders Is Vital to
American Interests. A. Universities and Their Communities Rely and Thrive on the Cross-Border
Exchange of Ideas and People. Colleges and universities in the United States regularly sit atop the rankings of the world's finest institutions of higher education. 5 The consistent success of Americna institutions arises, in no small part, from their ability to attract the very best students and faculty from the United States and from other countries. By attracting the sharpest minds to work together on the world's most challenging problems, American institutions are ideally equipped to improve the human condition through medical advances, scientific breakthroughs, new political and economic insights, innovative technologies, and the rich learning experiences that an internationally diverse group of students and teachers helps cultivate. As the attached Appendices reveal, 6 AAU member universities collectively educate and employ nearly 300,000 intenrational students and more than 82,000 faculty members from other countries. Indeed, in 2015, AAU universities hosted more than one-third of all intenrational students who studied in the United States. 7 Consider the following examples from schools in the South, North, East, and West: Rice University hosts 1,611 intenrational students and 883 international scholars. 8 The State University of New York (SUNY) at Buffalo enrolls 7,026
5 See World Univ. Rankings 2016-2017, Times Higher Educ., https://www.timeshigher education.com/world-university-rankings/2017/world-ranking# (last visited Feb. 12, 2017).
6 See Appendix A; Appendix B. 7 See AAU By The Numbers, http://www.aau.edu/AAU-Data-Page.aspx?id=16550. 8 Intl Students and Scholars at Rice, Rice Univ., Statistical Report, Executive Summary (2016), https ://oiss Ace. edu/uploadedFiles/About_OIS S/StatReport2016-Final.Public.pdf.
4

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 7 of 40 PageID #: 1435
international students and employs 923 intenrational scholars. 9 More than 5,800 intenrational students connect on University of Maryland, College Park's campus, and there interact with more than 1,300 intenrational scholars. 10 Purdue University hosts more than 9,000 intenrational students from 127 countries and more than 900 intenrational faculty and staff from 63 countries. " And 11,513 intenrational students are enrolled in degree programs, and 3,512 intenrational scholars are engaged in teaching and research, at the University of Califonria, Los Angeles.12
The ability of AAU's member universities to attract these gitfed, accomplished, and motivated students and scholars depends on ensuring predictable travel to and from the United States. If the member universities and their peer institutions cannot assure their students, professors, and researchers that they can leave the country to visit their families, attend intenrational symposia or conferences, or engage in overseas field research without encountering undue impediments to their return, then these institutions will struggle to maintain the level of talent and experience that makes the United States the world leader in higher education and research and development.
9 Open Doors Data, International Students: Leading Institutions, 2015/16, Inst. of Intl Educ., http://www.iie.org/Research-and-Publications/Open-Doors/Data/Intenrational-Students/ Leading-Institutions/2015-16 (last visited Feb. 15, 2017) (hereafter Open Doors Data, International Students: Leading Institutions); Appendix A.
10 Open Doors Data, Leading Institutions Hosting International Scholars, 2015/16, Inst. of Int'l Educ., http://www.iie.org/Research-and-Publications/Open-Doors/Data/IntenrationalScholars/Institutions-Hosting-the-Most-Scholars/2015-16 (last visited Feb. 15, 2017) (hereafter Open Doors Data, Leading Institutions Hosting International Scholars); Appendix A.
11 International Students and Scholars, Purdue University, https://www.iss.purdue.edu/ (last visited Feb. 15, 2017).
12 Open Doors Data, International Students: Leading Institutions; Open Doors Data, Leading Institutions Hosting International Scholars.
5

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 8 of 40 PageID #: 1436
The importance of maintaining international inclusion on our campuses cannot be overstated. Regular interactions with students and professors who come from different cultures and who have had vastly different life experiences promote both a richer understanding and a deeper appreciation of the world in which we live. Scholars hailing from different countries have confronted different social and political conditions and so can identify different problems to solve—and can see different solutions to offer. Equally important, intenrational diversity challenges all of the members of an academic community to reevaluate their assumptions and to reconsider their beliefs and biases. As the President of one AAU university has explained, the member institutions are places of "rigor, ingenuity and real-world problem-solving where generations of bright young minds have come from every corner of the Earth to make something of themselves and work together to make a better world. "13
By way of example, the 21 Syrian students enrolled at UCLA this past semester were undoubtedly able to contribute to their peers' understanding of the wide-ranging consequences of the war in Syria in a way no textbook or lecture ever could. 14 Similarly, the Iranian students enrolled at the member institutions could offer a unique perspective on the strengths and weaknesses of the recent nuclear agreement and other aspects of the United States' foreign policy that students could not absorb by simply reading op-eds in domestic newspapers.
To help foster meaningful interactions like these, thirty-five of AAU's member institutions are involved in Scholars at Risk (SAR), an intenrational network of higher-education institutions dedicated to promoting academic freedom and to protecting scholars from threats in
13 See Letter from L. Rafael Reif, President, MIT to Members of MIT Community (Nov. 9, 2017), http://president.mit.edu/speeches-writing/our-eyes-future.
14 See Appendix B. 6

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 9 of 40 PageID #: 1437
their home countries. 15 Since its founding in 1999, the SAR network processed applications
from over 3,400 scholars, and secured 900 positions of sanctuary at universities and colleges in
the United States. During the past two ifscal years alone, 249 scholars from the seven countries
identified in the EO applied for SAR's assistance. SAR has arranged research and teaching
positions for 100 of these scholars representing 52 percent of all positions arranged duirng that
time—including 20 at universities and colleges in the United States. 16
Without question, the presence of intenrational scholars and students enriches the
experiences of all members of a university community. Indeed, the AAU member institutions
would find it extraordinarily difficult to realize the ideals described in their respective mission
statements if students and scholars from countries around the globe could not predictably enter
and exit our country.
15 Membership Directory, Scholars at Risk Network, https://www.scholarsatrisk.org/ membership-directory/ (last visited Feb. 15, 2017); see also We Leave Our Guns at the Door: The Essential Role of Higher Education (Remarks by Robert Quinn, Executive Director), Scholars at Risk Network, Mar. 25, 2015, https://forumea.org/wp-content/uploads/2014/09/ RQuinn-Forum-on-Education-Abroad-26MAR2015.pdf (explaining that the international scholars who come to the United States through SAR not only obtain refuge from dangerous conditions in their home countries, but they also help expand thought and discourse on Americna campuses, exposing our "hidden biases," and holding up our most ifrmly held beliefs to the "kinds [of] cross-cultural quality-testing" that only a diverse intenrational community can foster).
16 Since the EO was issued, SAR has observed several negative impacts on scholars who are receiving SAR's shelter. For example, a SAR scholar and a prominent human rights activist from Syria was detained as a result of the EO and questioned for hours at Dulles Airpotr after returning from a conference abroad. If removed to Syria, he likely would face arrest and imprisonment. Like this scholar, other SAR participants frequently travel abroad to visit other universities as guest teachers or speakers, to attend conferences, and to conduct field research or other professional activities, as well as for personal reasons. They cna no longer predictably do so. In fact, a SAR scholar from Iran in the U.S. was hoping to present her research on women's rights and Islamic law at conferences in Europe, but she has been advised not to travel to those meetings. Similarly, an Iraqi SAR scholar researching jounralism in her home country has been advised not to travel abroad to conduct field study. Finally, those currently seeking SAR's assistance may be prohibited from entering the U.S. to accept positions at SAR member institutions. SAR is currently working to arrnage positions for 26 such scholars from countries affected by the EO, and the SAR program expects this list to grow. Delay in arrnaging positions or entry permission poses a great risk to scholars' work and well-being.
7

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 10 of 40 PageID #: 1438
B. International Students and Scholars Bolster the American Economy and Strengthen Our Democracy.
The beneifts of a free-lfowing exchange of scholars and ideas redound well beyond
Americna colleges and universities. The United States reaps tremendous proifts both tangible
and intangible—from its colleges' and universities' commitment to welcoming academics,
researchers, and innovators from around the world.
As a matter of pure economics, the inclusion of intenrational students and scholars at
schools like the AAU member institutions produces considerable returns for this country. A
recent "NAFSA: Association of International Educators" (NAFSA) study determined that the
more than 1 million intenrational students studying at Americna colleges and universities
"contributed $32.8 billion" to the U.S. economy during the 2015-2016 school year. 17 The same
study estimated that, in a single school year, intenrational students created or supported more
than 400,000 Americna jobs. NAFSA found that in New York alone, intenrational students
contributed $3.9 billion to the State and supported nearly 47,000 jobs in 2015-2016. 18 And
during the same time frame, intenrational students and their families supported more than 7,000
jobs and contributed nearly $645 million to the local economy in the Eastenr District of New
York. 19 Another study credits the steady stream of intenrational students into the United States
17 NAFSA International Student Economic Value Tool, NAFSA, http://www.nafsa.org/ Policy and_Advocacy/Policy_Resources/Policy_Trends_and_Data/NAFSA_International Student_Economic_Value_Tool/ (last visited Feb. 15, 2017); see also Press Release, U.S_Dep't of State, Inst. of Intl Educ., IIE Releases Open Doors 2016 Data (Nov. 14, 2016), http://www. iie. org/Who-We-Are/News -and-Events/Press -Center/Pres s-Releases/2016/2016-11 -14-OpenDoors-Data#.WKC3xkOzXIU (citing a U.S. Department of Commerce study that estimates the ifnancial contribution to be more like $36 billion).
18 NAFSA International Student Economic Value Tool, NAFSA, http://www.nafsa.org/ Policy and_Advocacy/Policy_Resources/Polic_yTrends_and_Data/NAFSA_International_ Student_EconomicV_ alueT_ool/ (last visited Feb. 15, 2017).
19 Id. (aggregating NAFSA data for congressional districts that constitute the Eastenr District of New York).
8

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 11 of 40 PageID #: 1439
for increases in "transnational business creation" and "trade and direct investment between the
United States" and those students' countries of origin.20
The U.S. economy has been further fueled by foreign-bonr innovators who came to this
country and chose to stay for extended periods of time. 21 Between 1995 and 2005, foreign-bonr
innovators founded . . . more than 25 percent of [engineering and technology] companies
nationwide. 22 Those companies, in turn, "produced $52 billion in sales nad employed 450,000
workers. "23 In the same vein, according to one study by the National Foundation for American
Policy (NFAP), "[i]mmigrants have statred more than half (44 of 87) of America's startup
companies valued at $1 billion or more and are key members of management or product
development teams in over 70 percent (62 of 87) of these companies." 24 The creation of new
companies generates obvious economic benefits for the United States, including considerable job
growth. Each $1 billion startup in the NFAP study has "created an average of approximately 760
jobs . . . in the United States. "25
20 Neil G. Ruiz, Brookings Inst., The Geography of Foreign Students in U.S. Higher Education: Origins and Destinations 2 (2014), https://www.brookings.edu/wp-content/uploads/ 20 1 4/0 8/Foreig_nStudents_Final.pdf.
21 See, e.g., Adams Nager, et al., Info. Tech. & Innovation Found., The Demographics of Innovation in the United States 5 (2016), http://www2.itif.org/2016-demographics-of-innovation . pdf?_ga=1.256641800.2049822595.1486928220 (suggesting that more than one third of U.S. innovators were born outside of the country, and another 10 percent have at least one parent who was bonr abroad).
22 Mi• chael Greenstone, Adam Looney & Harrison Marks, The Hamilton Project, The U.S. Immigration System: Potential Benefits of Refonn 4-5 (2012), http://www.hamiltonproject. org/assets/legacy/files/downloads_andlinks/05immigration_greenstonelooney.pdf (hereafter Greenstone).
23 Id. at 5. 24 Stuart Anderson, Nat'l Found. for Am. Policy, Immigrants and Billion Dollar Startups 1 (2016), http ://nfap. com/wp-content/uploads/20 1 6/03/Immigrants-and-Billion-Dollar-Startups. NFAP-Policy-Brief.March-20 1 6.pdf. 25 Id.
9

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 12 of 40 PageID #: 1440
Foreign-born students who study at American educational institutions and then begin working in science, technology, engineering, and mathematics ("STEM") fields have made particularly signiifcant contributions to the U.S. economy. In 2013, intenrational students accounted for nearly two-fifths (39 percent) of Ph.D. candidates in STEM subjects, and a recent study estimates that the percentage will climb above 50 percent by 2020. 26 When these students graduate, approximately 48 percent hope to stay in the United States to work. 27 Even with this steady inlfux of intenrational talent, the pipeline of STEM students in this country is not expected to be wide enough to keep up with the rapidly expanding number of STEM jobs available. 28
The recruitment of additional STEM students translates into far larger benefits for the country at large. An increase in the number of STEM workers in a metropolitna area is "strongly associated with higher patents per workers (na indicator of innovation), lower unemployment, a lower rate of job losses duirng . . . recession[s] . . . , higher exports as a share of gross domestic product (GDP) (a measure of intenrational competitiveness), and higher incomes. "29 The same goes for medina household incomes and average wages, both of which tend to be higher "in
26 Xueying Han & Richard P. Appelbaum, Ewing Mairon Kauffman Found., Will They Stay or Will They Go?: International STEM Students Are Up for Grabs 3 (2016), http://www. kauffman. org/—/media/kauffman_org/research%2Oreports%20and%20covers/20 1 6/stem_student s_final.pdf (hereafter Han & Appelbaum). If that growth is impeded, the U.S. will lose talent to other nations.
27 Han & Appelbaum, at 20. 28 Lylah Alphonse, New STEM Index Find's America 's STEM Talent Pool Still Too Shallow To Meet Demand, U.S. News & World Report (Apr. 23, 2014), http://www.usnews. com/news/stem-index/articles/20 1 4/04/23 /new- stem-index-ifnds -americas - stem-talent-pool- stilltoo-shallow-to-meet-demand. 29 Jonathan Rothwell, Brookings Inst., The Hidden STEM Economy 15 (2013), https:// www.brookings. edu/wp-content/uploads/20 1 6/06/ThelliddenSTEMEconomy6 1 0.pdf.
10

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 13 of 40 PageID #: 1441
STEM-oriented economies. "30 Consistent with these general trends, one study estimates that
"patent activity by high-skilled immigrants in the 1990s increased U.S. GDP per capita" by
between 1.4 and 2.4 percent—or $481 to $825 per person. 31
In addition to these economic benefits, the presence of intenrational students and scholars
on our AAU member institutions' campuses has been responsible for some of the most
significant STEM advances and accomplishments over the last few decades. To provide just a
few among a multitude of examples: Two mechanical engineers from India obtained
postdoctoral degrees from an AAU member institution and then went on to invent a system that
enables oil businesses to dispose of the waste generated by fracking in a cheaper and cleaner
manner. Their technology was named a "top 10 world-changing idea" in 2012. 32 Tim Benrers-
Lee, the English founder of the World Wide Web, reifned that technology at MIT, where he still
helps direct the W3 Consortium and run the Computer Science and Artificial Intelligence
Laboratory. 33 All six Americans to win a Nobel Prize in the sciences in 2016 were bonr abroad,
30 Id. at 16. 31 Greenstone, at 5. 32 Kevin Sullivan, Other Countries Court Skilled Immigrants Frustrated by U.S. Visa Laws, Wash. Post, Feb. 18, 2013, https://www.washingtonpost.com/national/other-countriescourt-skilled-immigrants-frustrated-by-us-visa-laws/20 1 3/02/1 8/73 d9f7ce-7 1 37-1 1 e2-ac3 63d8d9dcaa2e2_story.html?utm_tenn=.e0fdbf5fce8d (hereafter Sullivan). Additionally, 113 National Academy of Inventors ("NAI") Fellows currently at AAU member institutions were born in foreign countries. Fellowship nominees "must be a named inventor on patent(s) issued by the United States Patent and Trademark Office," and election to the fellowship is based on whether an inventor has "demonstrated a prolific spirit of innovation in creating or facilitating outstanding inventions that have made a tangible impact on quality of life, economic development, and the welfare of society." NAI Fellows, Nat'l Acad. of Inventors, http://www.academyoifnventors.org/fellows.asp (last visited Feb. 16, 2017). Five of these NAI Fellows are from Iran, one of the countries affected by the EO. 33 History of the Web, World Wide Web Found., http://webfoundation.org/about/vision/ history-of-the-web/ (last visited Feb. 15, 2017); Tim Berners-Lee, CSAIL, https://www.csail.mit. edu/user/769 (last visited Feb. 15, 2017).
11

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 14 of 40 PageID #: 1442
but now work on AAU member campuses. 34 And one cna only imagine how different the
American technology landscape would be if Abdul Fattah Jandali Steve Jobs's biological
father—had not been permitted to enter the United States from his original home in Homs, Syria,
to study at the University of Wisconsin-Madison, an AAU institution. 35
The United States cna ill afford to lose these foreign-born innovators and entrepreneurs to
other countries. In a recent interview with an Americna newspaper, one of the aforementioned
Nobel laureates "credited American openness with bringing top scientists to the country. "36 The
Americna scientific community will remain strong only, he said, "as long as we don't . . . turn
our back on immigration."37
Right now, there is a "global bidding war" for talented international students, particularly
in the STEM fields. 38 Foreign countries give substantial cash bonuses and other benefits to
intenrational scholars to entice them to leave the United States. 39 And when the United States
has made it harder to get into the country, fewer students and scholars choose to attend our
34 Chris Isidore & Charles Riley, Harvard and MIT Professors Win Nobel Prize in Economics, CNN Money (Oct. 10, 2016), http ://money. cnn. com/20 1 6/10/10/news/economy/ nobel-prize-economics/; Josh Fischman, Molecular Machine-Makers Grab the 2016 Nobel Prize in Chemistry, Scientific American (Oct. 5, 2016), https://www.scientificamerican.com/article/ molecular-machine-makers-grab-the-201 6-nob el-prize-in-chemistryl /; Dennis Overb ye & Sewell Chan, 3 Who Studied Unusual States of Matter Win Nobel Prize in Physics, N.Y. Times (Oct. 4, 2016), http s ://www.nytimes . com/20 1 6/1 0/05/science/nobel-prize-physics-topology.html ?r=0.
35 See Edward C. Baig, Steve Jobs' Biological Father Was Syrian Migrant, Some Note, USA Today (Nov. 17, 2015), http://www.usatoday.com/story/tech/columnist/baig/2015/11/16/ steve-jobs-biological-father-syrian-migrant-some-note/75 899450/.
36 Rafael Benral, Amid Debate, All 2016 American Nobel Laureates Are Immigrants, The Hill (Oct. 10, 2016), http://thehill.com/latino/3 0023 7-all-american-20 1 6-nobel-prize-honoreesare-immigrants.
37 Id. (internal quotation marks omitted). 38 Sullivan, Other Countries Court Skilled Immigrants Frustrated by U.S. Visa Laws. 39 Id.
12

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 15 of 40 PageID #: 1443
universities. Atfer 9/11, for example, our institutions of higher learning saw signiifcant drop-offs in their intenrational populations. 4° It makes little sense to chase away talented, law-abiding foreign students and scholars when so many other countries are willing to accept them.
Finally, the education of foreign-bonr students and the collaboration between American students and foreign-born scholars at AAU member institutions present the United States with an opportunity to promote the ideals that, together, make up the social, political, and cultural fabric of this country. Intenrational students and scholars who come to the United States to engage on our academic campuses are exposed to our democratic principles and our norms of tolerance nad respect. They witness American society's steadfast commitment to human rights, our emphasis on education, and our dedication to the rule of law.
These values, in turn, are transmitted around the world when these individuals depatr this country. Juan Manuel Santos, the president of Colombia and the 2016 Nobel Peace Prize winner, holds degrees from two AAU members: the University of Kansas (bachelor's degree in economics and business administration) and Harvard University (master's degree in public administration). The University of Michigan counts the former prime ministers of Antigua, Egypt, Italy, and Peru among its alumni. In the last Indonesian administration alone, the Cabinet included three officials who attended AAU member institutions the defense minister (University of Califonria-Berkeley), the finance minister (University of Pennsylvania), and the trade minister (University of Califonria-Davis)—plus two officials who attended other Americna universities. 41 The clear majority—if not all—of the AAU member institutions could boast a
40 NAFSA: Ass'n of Intl Educators, Restoring U.S. Competitiveness For International Students and Scholars (2006), http://www.nafsa.org/uploadedFiles/NAFSAH_ ome/Resource _ Library Assets/PublicPolicy/restoringu.s.pdf.
41 The justice minister attended Americna University, and the energy minister attended the University of Colorado School of Mines. Ben Wolfgang, Armed with U.S. Education, Many
13

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 16 of 40 PageID #: 1444

comparable list of auspicious government ofifcials. These world leaders, along with countless

individuals, have come to the United States, engaged in the vigorous exchange of ideas for which

this country is known, and then returned to their countries steeped in Americna democratic

principles and culture. 42

*

*

*

*

The importance of a free exchange of scholars and ideas that transcends borders is perhaps best expressed by two AAU university presidents both of whom are immigrants themselves. One traveled west and the other traveled east, but both have made indelible contributions to their chosen academic fields and the institutions that they now lead. NYU President Andrew Hamilton, an organic and biologic chemist, was bonr in England but moved to the United States several decades ago. Prior to becoming the president of NYU, Hamilton taught at three other AAU member institutions (Yale University, University of Pittsburgh, and Princeton University). 43 In a recent statement, Hamilton explained44:
As a scientist who studied and worked in four countries before becoming a citizen of the U.S., I know how important it is to be able to move across borders in peaceful pursuit of one's scholarship. I know, too, more than most given my

Leaders Take On World, Wash. Times (Aug. 19, 2012), http://www.washingtontimes.com/news/ 20 1 2/aug/1 9/anned-with-us-education-many-leaders-take-on-world/.
42 The importance of a free-flowing exchange of students, scholars, and ideas is relfected in longstanding federal law and policy. In 1961, the government established a special nonimmigrant visa program to encourage young leaders, entrepreneurs, research scholars, and professors to come to the United States and engage in "educational and cultural exchnage[]." U.S. Dep't of State, J-1 Visa Exchange Visitor Program, Common Questions, https:// j 1 visa.state.gov/basics/common-questions/ (last visited Feb. 2, 2017). This program, called the J-1 Visa Program, expressly instructs visitors who have completed the program to "return to their home country . . . to share their exchange experiences." Id.
43 Biography, NYU, https://www.nyu.edu/about/leadership-university-administration/ office-of-the-president/andrew-hamilton-biography.html (last visited Feb. 15, 2017).
44 Letter from Andrew Hamilton, President of NYU, to Members of the NYU Community (Jan. 30, 2017), http://www.nyu.edu/about/news-publications/news/2017/january/amessage-from-nyu-president-andrew-hamilton-about-the-recent-ex.html.
14

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 17 of 40 PageID #: 1445
background and my ifeld, how much goodwill the U.S. eanrs for itself through the openness of its education system and how widely those who study here can spread Americna values.
Canregie Mellon University President Subra Suresh is an engineer who was born in India
but moved to the United States for his postgraduate studies. 45 Suresh attended three different
AAU member institutions (Iowa State University, MIT, and the University of California-
Berkeley), before joining the faculty at two other AAU member universities, Brown University
and MIT. 46 Suresh offered sentiments similar to President Hamilton's in a recent letter to his
academic community47:
The topic of immigration is very personal to me. As I relfected in my inaugural address at CMU in November 2013, I first came to the U.S. at age 21 with a partially filled suitcase, less than $1 00 in cash, and a one-way airplane ticket purchased with a lona. Once in the U.S., I was able to pursue a series of extraordinary opportunities for scholarship and service without regard for my national origin—an experience that forged in me an unshakeable faith in the ability of this nation to help everyone to succeed, wherever they came from. This trust in the system was reinforced even more strongly a few years ago when I was nominated by the President of the United States to lead the National Science Foundation and was unanimously confirmed by the United States Senate, without partisna considerations and without regard to my national origin.
My own story is just one among millions that have shaped the history of this country. Immigration and international collaboration are not footnotes in the story of higher leanring. Andrew Carnegie, CMU's founder and such a central figure in America's industrial dominance during his time, was an immigrant Tens of thousands of foreign-bonr students, researchers, scholars, innovators and faculty members across the country, including many at CMU, do pioneering work at the cutting-edge of science, technology and artistic creativity. The point is clear: our very prosperity and security as a nation, and thus our freedom, depend in part on the people who come to this country from around the world.
45 Biography Carnegie Mellon University https://www.cmu.edu/leadership/presidentsuresh/bio/ (last visited Feb. 15, 2017).
46 Id. 47 Letter from Subra Suresh, President, Carnegie Mellon University, to Members of the Canregie Mellon University Community (Jan. 31, 2017), http://www.cmu.edu/leadership/ pre sident-suresh/campus-comms/20 1 7/201 7-01 -3 1 . html.
15

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 18 of 40 PageID #: 1446

These two leaders embody the impact that intenrational students and scholars can have on educational institutions like those in AAU. Their stories capture what our country stands to lose if we begin making it harder for people like them to come to the United States to leanr and to teach. II. The Executive Order Directly Threatens Academic Exchange with International
Students and Scholars. By "suspend[ing] entry into the United States, as immigrants and nonimmigrants," of persons from Iran, Iraq, Syria, Sudan, Yemen, Libya, and Somalia for at least 90 days, EO § 3(c), the EO prevents visa-holding students, faculty and researchers from participating in the open academic exchange that is so vital to modern higher education and our national interests. According to the Institute of International Education, 48 in 2015-2016, approximately 17,300 students and 2,300 professors or researchers in the United States came from one of the seven countries specified in the EO:

Iran Iraq Libya Somalia Sudan Syria Yemen Total

Number of Students
12,269 1,901 1,514
35 253 783 599 17,354

Number of Scholars 1,891 171 49 0 32 145 19 2,307

Total Students and Scholars
14,160 2,072 1,563
35 285 928 618 19,661

48 Elizabeth Redden, A Closing of America, Inside Higher Ed, Jan. 26, 2017, https://www. insidehighered. com/news/20 1 7/0 1 /26/draft-executive-order-would-call-banning-entryindividuals-some-countries.
16

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 19 of 40 PageID #: 1447
All 60 of AAU's United States members have students and scholars from these affected countries. Even more strikingly, as Appendix B demonstrates, a cross section of just over onethird of the AAU member institutions still totals more than 2,000 students from the seven affected countries. And as Appendix C shows, the 21 schools for whom AAU has data collectively count more than 500 scholars from the seven affected countries. For example:
Boston University: 97 students and 16 scholar4s9; Brandeis University: 12 students and 10 scholars; Canregie Mellon: 30 students and 2 scholars; Iowa State University: 115 students and 10 scholars; MIT: 47 students and 69 scholars; Purdue University: 104 students and 12 scholars; The Ohio State University: 79 students and 15 scholars; The University of Califonria-Berkeley: 94 students and 16 scholars; • The University of Florida: approximately 200 students, faculty, and staff5°; The University of Kansas: 88 students and 6 scholars; The State University of New York (SUNY) at Buffalo: 122 students and 40 scholars; The University of Texas at Austin: a combined 110 students and scholars. 51
49 The data for Boston University, Brandeis University, and MIT is taken from: Louhghalam v. Trump, No. 1:17-cv-10154-NMG (D. Mass), ECF No. 68
5° Statement on Immigration Executive Order by W. Kent Fuchs, President, University of Florida, http ://president. ulf. edu/updates/20 1 7/0 1 /statement-on-immigration-executive-order. html
51 Message from President Fenves on Recent Executive Order, http://president.utexas . edu/mes sages/recent-executive-order?utm_source=facebook&utm_medium=refen-al&utm _ campaign=UTAustinSocial.
17

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 20 of 40 PageID #: 1448
AAU members also host and employ many nationals of the seven specified countries,
including:
An activist and jounralist who helped galvanize Yemeni support for the Arab Spring and has been appointed a visiting lecturer on public policy;
A Syrina trauma surgeon who was instrumental in coordinating NGO support for medical care to casualties of the civil war and is now assessing the relative availability and quality of trauma care at Syrina hospitals;
An Iranina professor who previously worked at a leading Europena architectural firm, taught throughout Europe, and received numerous awards and appointments for her contributions to the field;
A Sudanese medical professor (and practicing physician at a local hospital) who has received awards and public acclaim for her work on female genital cutting;
A Syrina professor and recipient of a MacArthur "Genius" grant who has, among other things, founded a company that develops systems to monitor vital signs to detect the onset of illness in the elderly;
An Iranian medical professor who has developed novel methods for studying the longterm risks of myocardial infarction and stroke following blood infection;
A Syrian neuroscientist who researches the neurobiology of pain, anxiety, depression, and substance abuse, is co-director of a respected institute on molecular and behavioral neuroscience, and has been elected to the National Academy of Science; and
An Iranina mathematicina who was the ifrst woman to win the Fields Prize, the most prestigious prize in mathematics. Talented students and scholars like these have felt the EO's negative effects during the past three
weeks.
A. Students and Scholars at AAU Member Universities Have Been Directly Impacted by the EO.
From the moment the EO was signed, hundreds of students and scholars at AAU
universities were either locked out of or locked into the United States. Many members of our
academic communities who were outside of the United States at the time the EO was signed
were barred from returning to the United States to continue their studies and work. These
18

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 21 of 40 PageID #: 1449
include undergraduates who were simply trying to return to campus after spending their winter breaks with their families. 52
They also include graduate students who hoped to continue their advanced study and research at AAU member institutions. For instance, an Iranian Ph.D. student in Applied Mathematics and Statistics recently accepted a Postdoctoral Scholar appointment from the University of Chicago, but after consulting with the United States Embassy, he was told that the EO barred his entry. This student has declined offers from universities in Canada and the United Kingdom, and it is too late for him to continue his studies in those countries. In another case, a research scientist at Brandeis University who holds a Ph.D. in theoretical physics received a fellowship from the New England Complex Systems Institute to study the behavior of complex social networks. That scholar had planned to arrive shortly after the EO issued, but was forced to temporarily remain in Iran because of the EO. Similarly, Carnegie Mellon University has an Iranian Ph.D. student who is studying for his dual degree at a patrner institution outside of the United States; if the EO remains in place, he will be unable to return to Pittsburgh for his qualifying exams and to complete his degree. In a fourth case, an Iranian Ph.D. student was scheduled to arrive for classes at the University of Califonria-Davis in March, but his ability to return is now in doubt. And another Iranian researcher with a joint appointment at Harvard
52 See, e.g., Stephanie Ebbert, MIT Engineering Student From Iran Not Allowed To Reenter US, Boston Globe (Jan. 31, 2017), http://www.bostonglobe.com/metro/2017/01/31/mitengineering-student-from-iran-barred-entry-into/fQBJ7kLIhY7P79YNKVKtTN/story.html; Anya Kamenetz, Students Stranded Worldwide By Trump Order, NPR (Jan. 30, 2017), http:// www.npr. org/sections/ed/20 1 7/0 1 /30/5 1243 1 1 12/students-stranded-worldwide-by-trump-order.
19

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 22 of 40 PageID #: 1450
Medical School and Brigham & Women's Hospital was unable to board a flight from Zuirch to Logan Airport, and was forced to ifle a lawsuit to gain entry to statr her work. 53
In some cases, these students and scholars eventually were able to enter the United States following court-ordered injunctions in other judicial districts. 54 But if that relief is litfed, many others like them will be stranded abroad.
Just as many individuals have been kept out of the United States in the wake of the EO, others are effectively locked in. Those scholars and students from the seven countries covered by the EO who were lucky enough to be in the United States when it was issued can no longer confidently travel outside the United States and expect reentry. This means that despite having valid visas, faculty members from these seven countries cannot visit families abroad, attend intenrational academic conferences, give lectures to colleagues at sister universities, or conduct field research in foreign nations.
For example, a professor at an AAU member institution previously taught at universities around the world and has maintained close ties with her foreign academic colleagues, who are important to her creativity and work. The EO struck a sudden, signiifcant blow to these connections, casting in doubt the professor's ability to present as scheduled at upcoming conferences overseas, because her return to the United States is not guaranteed. She is also concerned about traveling abroad to visit and care for her mother, who is terminally ill, while the EO remains in place. Other professors have faced similar obstacles since the EO was issued.
53 See Milton J. Valencia, Boston-Bound Iranian Scientist with Visa Sues US over Ban, Boston Globe (Feb. 2, 2017), https://www.bostonglobe.com/metro/2017/02/01/iranian-scientistwith-visa-and-bound-for-boston-sues-over-ban/vOrRMIatsOfTTzY0sr8EvIlstory.html.
54 See, e.g., Sidney Lee, Iranian Student Finally Returns, CNHI News Oklahoma, Feb. 6, 2017, http ://www. chickashanews. com/oklahoma/news/iranian- student-finally-returns/articleb_ 1 7 03e5a-71fd-511c-a30b-9e2c7394c081.html.
20

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 23 of 40 PageID #: 1451
Equally to the point, students cannot pursue their own research in foreign libraires and
laboratories, participate in study-abroad programs, or attend satellite campuses in other
countries. 55 Nor can they travel home for personal reasons, whether to celebrate a family
member's marriage or to mounr a loved one's death at a funeral. For example, a Ph.D. student at
55 AAU members have invested significant resources in study-abroad programs, foreign satellite campuses, and global experiential leanring opportunities. For example, New York University has global campuses in places like Abu Dhabi, Tel Aviv, and Shanghai; each year, more than 3,000 NYU undergraduate students choose to study abroad at one of these locations. See Studying Abroad, New York University, http://www.nyu.edu/academics/studying-abroad. html. Similarly, the University of California-Berkeley is building a "Berkeley Global Campus (BGC)," which will serve as an "intenrational hub in which an exclusive group of some of the world's leading universities and high-tech companies will work side-by-side in a campus setting." Nicholas B. Dirks, Leading a Global Transformation of the American Research University, Huffington Post, Mar. 23, 2015, http://www.huffingtonpost.com/nicholas-bdirks/leading-a-global-transfor_b_6517758.html . "Along with its research mission, the BGC will have a strong educational component, centered on a Global College for Advanced Study that offers both undergraduate and graduate-level academic programs for U.S. and intenrational students. The Global College will be a living laboratory designed to support interdisciplinary intenrational and public and private solutions for key 21st-century challenges in ifelds such as energy, computing, robotics, the environment, public health, and the global economy." Id. In connection with this new campus, Berkeley will be offering expanded study-abroad programs for its undergraduates, including new opportunities "to study at the overseas campus of a BGCaffiliated university, followed by completion of research-intensive studies at that university's site at the BGC." Id. MIT's Sloan Management School allows students to enroll in "Action Leanring Labs," where they are assigned to real-world company partners and work on projects for those companies, often on-site, during an academic term. The school offers Labs in China, India, and Israel, as well as a Global Entrepreneurship Lab, in which students are sent to emerging markets across the globe, "from Argentina to Zambia. " Action Learning, MIT-Slona, http://mitsloan.mitedu/actionleaming/labs/g-lab-info-for-hosts.php/ (last visited Feb. 13, 2017). Finally, the Human Rights Program at Harvard Law School works to protect the rights of clients and communities around the world through a vairety of intenrational projects. See Human Rights@Harvard Law, http://hip.law.harvard.edu/ (last visited Feb. 13, 2017). The Program's clinical projects regularly involve work in several of the countries identified in the EO. For example, in the past ifve years, the Clinic has undertaken work related to the threat posed to civilinas in Libya by abandoned weapons. More recently, one clinical project has been engaging with the challenges that Syrian refugees living outside refugee camps encounter when attempting to obtain ofifcial documents from the government of Jordan. Over the past year, another ongoing clinical initiative focused on climate change displacement and included a case study on Somalia.
By placing undue restrictions on the free lfow of students and scholars, the EO imperils the success of innovative intenrational programs like these and the many others at AAU member universities.
21

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 24 of 40 PageID #: 1452
Boston University was scheduled to travel home to conduct interviews and research that are critical to his dissertation. He has now cancelled his trip due to the EO and the uncertainty of being able to return to the U.S. He is working with his dissertation advisor to evaluate how to formulate a new dissertation topic, which will significantly delay the completion of his Ph.D. In addition, two Iranina graduate students who are studying global health at an AAU member institution may not be able to complete field research and training because of the EO's travel bna. And one Harvard graduate student recently published an eloquent editorial in the New York Times—worth reading in its entirety—describing his fears about leaving the country and his sorrow about the effects that the EO will have on "thousands who, unlike me, might never get to experience America at its best. "56 These examples demonstrate the severe effects of the EO on universities across the country.
Fruitful academic exchange does not occur only abroad. It also takes place within the United States. Foreign scholars frequently travel to AAU universities for conferences and to collaborate with academic and research colleagues. For example, the EO has impacted the Columbia Law School Human Rights Clinic's efforts to research the mental-health effects associated with the violent conflict in Yemen. The Clinic had been organizing an interdisciplinary workshop to be held in New York, which would have brought together leading researchers from Yemen, the United States, and other countries to design a new study to
56 Ziad Reslna, Harvard Student: 7 Worry If I Leave, I Won't Be Let Back In', N.Y. Times (Feb. 2, 2017), https://kristablogs.nytimes.com/2017/02/02/harvard-student-i-won-y-if-ileave-i-wont-be-let-back-in/?r=2.
22

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 25 of 40 PageID #: 1453
investigate and improve mental health in Yemen. Because of the EO, the Clinic has taken steps to move the workshop to Canada. 57
The EO also burdens foreign academics who wish to come to the United States to foster collaborative study. More than 43,000 Americna scholars including 62 Nobel Laureates; 146 recipients of prestigious awards like the Fields Medal, Pulitzer Prize, and MacArthur Fellowship; and 521 Members of the National Academies of Sciences, Engineering, and Arts—explained in an online petition that the "EO limits collaborations with researchers from these nations by restricting entry of these researchers to the US and cna potentially lead to departure of many talented individuals who are current and future researchers and entrepreneurs in the US. " 58 The loss of this talent to AAU member institutions and the nation would be incalculable. These accomplished scholars therefore conclude: "We strongly believe the immediate and long term consequences of this EO do not serve our national interests. "59
B. The EO Will Have Continuing Adverse Effects on Open Academic Exchange and, by Extension, Our National Interests.
In addition to the direct effects on existing students and scholars, the EO promises to have deleterious effects on critical academic exchange. Shortly after the EO was enacted, for example, more than 3,000 international scholars signed a petition to "boycott intenrational academic conferences held in the United States in solidairty with those affected by" the E0. 6°
57 Collin Binkley, Travel Ban Throws Research, Academic Exchange into Turmoil, Associated Press (Jan. 31, 2017), http://abcnews.go.com/Technology/wireStory/travel-bnathrows-research-academic-exchange-tuirnoil-45 1 6941 8.
58 Academics Against Immigration Executive Order, https://notoimmigrationbna.com/ (last visited Feb. 12, 2017) (hereafter Academics Against Immigration Executive Order).
59 Id. 6° Elizabeth Redden, Boycotting the U.S., Inside Higher Ed (Jan. 31, 2017), https://www. insidehighered. com/news/20 1 7/0 1 /3 1 /protest-trump-entry-ban-some-scholars -are-boycotting-us based-conferences.
23

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 26 of 40 PageID #: 1454
This proposed boycott was not a hollow threat. For example, the Intenrational Studies Association, one of the oldest interdisciplinary associations dedicated to understanding intenrational, transnational, and global affairs, is scheduled to host its annual conference in late February in Baltimore. However, many foreign participants pulled out of this conference as patr of the international boycott, and the Association was forced to announce that it "will refund registration fees and waive any penalties for those who are unable to attend the annual meeting or choose not to attend as a result of the U.S. Executive Order on Immigration." 61 Although many AAU member institutions have opposed the boycott as counterproductive, its influence is incontrovertible. The scholars who have refused to attend U.S. conferences have already had a powerful impact and undoubtedly will continue to do so for as long as the boycott remains in effect.
Foreign institutions also have started cancelling their own conferences in response to the EO. For example, a conference sponsored by the Association for the Study of Persianate Societies was scheduled to take place in Shiraz, Iran, in March, but it could not proceed due to the travel dififculties posed by the EO and the related uncertainty around who (if anyone) would be able to attend. 62 Many American professors had planned to patricipate in the conference to
61 Update on Remote Participation and Travel Concerns for Baltimore, Intl Studies Ass'n (Feb. 6, 2017), http://www.isanet.org/News/ID/5416/Update-on-Remote-Participationand-Travel-Concerns-for-Baltimore; see Redden, Boycotting the U.S.
62 Letter from Ghazzal Dabiri, 2017 Conference Chair, Ass'n for the Study of Persianate Societies to Friends and Colleagues, http://www.persianatesocieties.org/index.php/conventions/ asps-biennial-convention-shiraz-2017 ("As many of you are aware, in a measure-for-measure response to President Trump's executive order of Friday, January 27, 2017, the Government of Iran announced on Saturday, January 28, that it would no longer issue any visas to Americna citizens for an initial period of 90 days and beyond it as long as the US ban remains in effect As the Americna scholars constitute the bulk of non-Iranina attendees at the Convention, we are forced to cancel it at this late stage.").
24

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 27 of 40 PageID #: 1455
consult with academic colleagues in that unique field of study. They now will be unable to do so.
It is difficult to overstate the importance of conferences, colloquia, and symposia to scholarly communication. They enable intellectual give-and-take and real-time digestion and discussion of research. Conferences also allow for in-person encounters and discussions that give rise to important future collaborations. This kind of face-to-face collaboration is particularly important to scientiifc research. As Rush Holt, the CEO of the Americna Association for the Advancement of Science, has stated: "Freedom of communication is absolutely essential for science to function It's not just nice for people to attend conferences and communicate in person, it's patr of the practice of science. And being able to have scientists from diverse backgrounds and viewpoints, that's essential to the practice of good science. "63 The prospect of barred entry, and of retaliation and boycotts, means lost opportunities for the expnasion of knowledge and scientific discovery. And Americna universities risk being removed from the epicenter of where cutting-edge ideas are discussed. The EO puts all of these benefits in jeopardy.
The EO also will impair AAU member institutions' ability to recruit foreign faculty and scholars. Collectively, AAU member universities already employ dozens of faculty members from the seven nations currently covered in the EO. But the aforementioned petitioning scholars offer a powerful reason why foreign academics may be unwilling to teach at an Americna university in the future:
63 Chelsea Whyte, Trump's Travel Ban Is Already Stopping Scientific Collaboration, New Scientist (Jan. 31, 2017), https://www.newscientist.com/article/2119910-trumps-travel-bnais-already-stopping-scientiifc-collaboration/.
25

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 28 of 40 PageID #: 1456
The implementation of this EO will necessarily tear families apart by restricting entry for family members who live outside of the US and limiting the ability to travel for those who reside and work in the US. 64 Given those working conditions, many scholars will choose not to teach in this country. One AAU member's current recruit to fill a full-time faculty position has disclosed that he is married to a national from one of the seven countries covered in the EO; that recruit has expressed concenrs about accepting a position in light of the EO. Another member university identified an Iranian scholar as the best candidate for an Assistant Professor position, but it is uncertain whether that scholar will be permitted to enter the country and work here. The suspension of visa processing under the EO may have further financial implications for our scholars through the disruption of research funding and the loss of job opportunities if they are unable to obtain or extend work authorizations. Universities across the country will lose highly competitive candidates from the affected countries to institutions outside of the United States if the EO remains in effect. In addition, the EO will prevent AAU member universities from attracting and educating the best and brightest foreign students. For example, while the regular admissions process is still underway at MIT, at least two prospective students from the identiifed countries have already been admitted for the fall via early action. One, an 18-year-old from Damascus, was reported on in the media. 65 After dreaming for years of eanring an engineering degree from MIT, the student was recently accepted for the class of 2021. But when the EO was signed, his ability to attend MIT became uncertain. As he puts it: "'My dreams are basically ruined. '"66 Regrettably, this
64 See Academics Against Immigration Executive Order. 65 See Justin Lear, A Syrian Teen Was Headed to MIT and Then Came the Ban, CNN (Jan. 29, 2017), http ://www. cnn. com/20 1 7/0 1 /29/us/mit- syria- student-ban-trnd/. 66 id.
26

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 29 of 40 PageID #: 1457
young man is not the only talented applicant whose dreams may be dashed. A top candidate for the University of Rochester's Eastman Institute of Oral Health's ("EIOH") Advanced Education for General Dentistry program recently turned down an offer of admission, explaining that the EO made it dififcult to justify uprooting his family at this time. Decisions like these will adversely affect not only the University of Rochester, but also the wider community. EIOH is one of New York State's largest providers of oral health care for Medicaid recipients and the uninsured, and this loss will impact care for vulnerable patient populations. Uncertainty about the number of students who will actually accept offers of admission, moreover, throws a wrench into the carefully calibrated admissions decisions that are currently taking place at AAU member institutions across the country.
In addition to concenrs about a drop in the number of intenrational students who are able to matriculate at AAU member institutions, the schools also justifiably fear a decline in the number of applications they will receive. A recent atricle reported that university administrators are already seeing a precipitous and unprecedented drop in the number of applications to graduate programs in engineering. 67 That article explains that "[u]niversity administrators worry that the declines, as much as 30% from 2016 levels in some programs, reflect heightened fears among foreign-bonr students that the United States is tightening its borders. "68 It would not be surprising if other courses of study at both the undergraduate and graduate levels experience similar declines.
Finally, the sheer uncertainty of the current situation likely will deter students, scholars, and faculty from countries not currently covered by the EO from travelling to and from the
67 Jeffrey Mervis, Drop in Foreign Applicants Worries U.S. Engineering Schools, Science (Feb. 14, 2017), http://www.sciencemag.org/news/2017/02/drop-foreign-applicantswotries-us-engineering-schools.
68 id.
27

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 30 of 40 PageID #: 1458
United States for academic purposes. To take just one example, the University of Rochester's Division of Solid Organ Transplantation recently hired a Saudi Arabian hepatologist who is now concenred about his future here. What is more, the Division's Chief of Solid Organ Transplantation, a Mexicna national, is a world-renowned liver-transplant surgeon. He has recruited an international team to join him (including the doctor from Saudi Arabia). In the six months that he has been at the University of Rochester, the surgeon has doubled the number of liver transplants performed at the university's medical center. His work is especially important, as New York State has a severe liver shortage. The EO puts that work—and this surgeon's ability to attract the talented foreign doctors who assist him in it in severe jeopardy, even though he and his colleagues do not hail from the seven countries listed in the EO. In fact, he has standing invitations to give talks at conferences in Canada, Argentina, Germany, and the Czech Republic in the coming months, but he has put them on hold out of fear that the bna will be expanded or that he will face increased scrutiny returning to the country.
These fears are understandable. Although there are reportedly no plans in place to add to the list of restricted countries, the EO provides for this possibility, and high-ranking Executive Branch officials have suggested that an expansion may well occur in the future. 69 Given this volatility, individuals from a wide range of nations may fear—quite reasonably—that their country might be the next addition to the list. Foreign scholars and students may not be willing to risk being stranded here or abroad, even if they must instead change plans and go elsewhere to gain an education, engage young minds, conduct research, or perform vital medical services at teaching hospitals. AAU thus supports any legal measure that will mitigate that risk, provide
69 See Face the Nation Transcript Jan. 29 2017 http://www.cbsnews.cominews/face-thenation-transcript-january-29-2017-priebus-mccain-ellison/ ("Now, you can point to other countries that have similar problems, like Pakistan and others. Perhaps we need to take it further.").
28

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 31 of 40 PageID #: 1459

much-needed clarity in these uncertain times, and restore conifdence to those who travel to and from American research universities every day.
CONCLUSION AAU member universities are on the leading edge of innovation, scholarship, and solutions that contribute to the nation's economy, security, and well-being. AAU has submitted this brief to demonstrate the serious effects the EO has had on American universities in the weeks since it was issued. In light of those effects and for the foregoing reasons, AAU respectfully submits that Petitioners' requested relief should be granted.

February 16, 2017

Respectfully submitted,
COUNSEL FOR AMICUS CURIAE ASSOCIATION OF AMERICAN UNIVERSITIES
/s/ Daniel H. Tabak Daniel H. Tabak (DT-9842) Oliver S. Haker (OH-6343) Cohen & Gresser LLP 800 Third Avenue New York, NY 10022 Tel: (212) 957-7600 Fax: (212) 957-4514 dtabak@cohengresser.com ohaker@cohengresser.com
Brad D. Brian (Califonria Bar #79001) Pro Hac Vice pending
Michael R. Doyen (Califonria Bar #119687) Pro Hac Vice pending
Munger, Tolles & Olson LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071 Tel: (213) 683-9100 Fax: (213) 687-3702 Brad.Brian@mto.com Michael.Doyen@mto.com

29

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 32 of 40 PageID #: 1460 Chad Golder (New York Bar #4381356) Pro Hac Vice pending Sarah G. Boyce (DC Bar #1035243) Pro Hac Vice pending Munger, Tolles & Olson LLP 1155 F. St., NW, 7th Floor Washington, DC 20004 Tel: (202) 220-1100 Fax: (202) 0220-2300 Chad.Golder@mto.com Sarah.Boyce@mto.com
30

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 33 of 40 PageID #: 1461
PPENDIX

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 34 of 40 PageID #: 1462

International Students and Scholars at AAU Institutions *I1

Institution
Boston University Brandeis University Brown University Califonria Institute of Technology Canregie Mellon University Case Westenr Reserve University Columbia University Conrell University Duke University and Medical Center Emory University Georgia Institute of Technology Harvard University Indiana University - Bloomington Iowa State University Massachusetts Institute of Technology Michigan State University New York University Northwestern University Princeton University Purdue University - West Lafayette Rice University Rutgers University - New Brunswick Stanford University SUNY Stony Brook University University at Buffalo -
The State University of New York Texas A&M University - College Station The Johns Hopkins University The Ohio State University The Pennsylvania State University The University of Arizona The University of Chicago The University of Iowa The University of Kansas The University of Texas - Austin The University of Wisconsin - Madison

Total International
Students 8,455 1,676 1,842 828 7,051 2,447 12,740 6,008 3,747 2,783 5,979 5,679 7,159 4,636 4,575 8,256 15,543 5,062 2,034 10,563 1,956 6,040 5,107 5,609

Total International
Scholars 1,361
173
3,082 1,145 1,777 1,035 1,064 4,951
552 621 2,408 1,137 1,257 1,431 1,114 1,323 883 1,127 3,512

7,026 6,940 5,058 7,117 8,084 4,956 3,869 4,540 2,592 6,069 6,440

923
2,625 1,834 1,350 1,751 1,302
474 290 1,620 1,840

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 35 of 40 PageID #: 1463

Tulane University University of Califonria - Berkeley University of Califonria - Davis University of Califonria - Irvine University of Califonria - Los Angeles University of Califonria - San Diego University of California - Santa Barbara University of Colorado Boulder University of Florida University of Illinois at Urbana-Champaign University of Maryland - College Park University of Michigan - Ann Arbor University of Minnesota - Twin Cities University of Missouri - Columbia University of North Carolina - Chapel Hill University of Oregon University of Pennsylvania University of Pittsburgh - Pittsburgh University of Rochester University of Southenr Califonria University of Virginia University of Washington Vanderbilt University Washington University in St. Louis Yale University Total for AAU Institutions

1,531 7,313 5,381 5,647 11,513 7,556 2,557 2,951 6,751 12,085 5,802 7,630 7,037 2,990 2,025 4,139 6,221 3,946 3,432 13,340 2,573 8,259 1,561 3,047 3,089 283,286

3,399 2,202 1,256 3,512 2,853
567
1,527 2,083 1,309 3,155 1,844
938 1,372
1,796 1,768
1,629
1,208 2,565 82,121

*Most of the data in this chart was drawn from the 2016 Open Doors Report on Intenrational Educational Exchange. The report is available at: http://www.iie.org/Research-andPublications/Open-Doors/Datatt.WKSIBO3rtD _
t For institutions with fewer than 1,000 international scholars, data was either provided by the institution directly to AAU or is publicly available on the institution's website. The data reported is for the most recent year available that complies with the Institute of Intenrational Education's definition of international students nad scholars.
1 Blanks in this chart relfect unavailable data, not the number zero. The total number of international students and scholars at AAU member institutions is therefore almost certainly higher than the total relfected in this chatr.

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 36 of 40 PageID #: 1464
PPENDIX B

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 37 of 40 PageID #: 1465

Students from the Countries Affected by the Executive Order *t

Iran

Iraq

Libya Somalia Sudan Syria

Carnegie Mellon University Cornell University

29

1

0

0

0

0

57

1

0

0

2

4

Georgia Institute of Technology Harvard University Iowa State University Northwestern University Purdue University - West Lafayette

139

24

2

0

1

1

8

101

5

7

0

0

1

45

0

0

0

0

2

94

0

3

0

0

5

Rice University

32

0

0

0

0

0

Texas A&M University - College Station

174

38

4

0

2

1

The Ohio State University

62

1

16

0

0

0

The University of Chicago

23

0

0

0

0

2

The University of Kansas

52

30

4

0

0

1

University at Buffalo (SUNY)

110

2

0

0

1

7

University of California - Berkeley

85

1

0

2

3

3

University of California - Davis

98

22

3

0

1

3

University of California - Irvine

120

1

0

0

2

4

University of California - Los Angeles

189

12

0

0

2

21

University of California - San Diego

76

2

1

0

1

1

University of California - Santa Barbara

62

4

0

0

0

5

University of Maryland - College Park

165

8

0

0

1

6

University of Minnesota - Twin Cities

89

University of Missouri - Columbia

51

79

9

0

0

1

Yale University

14

1

0

1

1

1

Yemen 0 0
1 1 1 2 0 0 0 0 1 2 0 3 0 2 0 0 0
1 0

Total 30 64 149 37 115 48 104 32
219 79 25 88 122 94 130 127 226 81 71 180
141 18

* The data in this chart was gathered through a survey that AAU circulated to all of the AAU member institutions and/or from websites maintained by AAU member institutions.
t Blanks in this chart reflect unavailable data, not the number zero.

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 38 of 40 PageID #: 1466
PPENDIX C

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 39 of 40 PageID #: 1467

Scholars from the Countries Affected by the Executive Order *t

Iran

Iraq

Libya Somalia Sudan Syria

Carnegie Mellon University Cornell University

2

0

0

0

0

0

20

0

1

0

0

2

Georgia Institute of Technology Harvard University Iowa State University Northwestern University Purdue University - West Lafayette

36

62

0

0

0

1

3

8

1

0

0

0

1

22

0

0

0

0

0

12

0

0

0

0

0

The Ohio State University The University of Chicago The University of Kansas University at Buffalo (SUNY) University of California - Berkeley

15

0

0

0

0

0

2

0

0

0

0

1

4

0

0

0

1

0

38

0

1

1

0

0

15

1

0

0

0

0

University of California - Davis University of California - Irvine University of California - Los Angeles University of California - San Diego

23

0

0

0

0

0

4

0

0

0

0

1

14

0

0

0

0

1

25

0

0

0

0

0

University of California - Santa Barbara

9

0

0

0

0

0

University of Maryland - College Park

160

6

0

0

1

0

University of Minnesota - Twin Cities

23

0

University of Missouri - Columbia

9

5

0

0

0

1

Yale University

18

0

0

0

0

0

Yemen 0 0
1 0 0 0 0 0 1 0 0 0 0 0 0 0 2 0 0 0

Total 2 23 38 67 10 22 12 15 3 6
40 16 23 5 15 25 9 169
15 18

* The data in this chart was gathered through a survey that AAU circulated to all of the AAU member institutions and/or from websites maintained by AAU member institutions.
t Blanks in this chart reflect unavailable data, not the number zero.

Case 1:17-cv-00480-CBA Document 136 Filed 02/16/17 Page 40 of 40 PageID #: 1468

CERTIFICATE OF SERVICE I hereby certify that on February 16, 2017, I electronically ifled the foregoing with the Clerk of the Coutr for the United States District Court for the Eastenr District of New York by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

Dated: February 16, 2017

Respectfully submitted,
/s/ Daniel H. Tabak Daniel H. Tabak (DT-9842) Oliver S. Haker (OH-6343) Cohen & Gresser LLP 800 Third Avenue New York, NY 10022 Tel: (212) 957-7600 Fax: (212) 957-4514 dtabak@cohengresser.com ohaker@cohengresser.com
Brad D. Brian (California Bar #79001) Pro Hac Vice pending
Michael R. Doyen (Califonria Bar #119687) Pro Hac Vice pending
Munger, Tolles & Olson LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071 Tel: (213) 683-9100 Fax: (213) 687-3702 Brad.Brian@mto.com Michael.Doyen@mto.com
Chad Golder (New York Bar #4381356) Pro Hac Vice pending
Sarah G. Boyce (DC Bar #1035243) Pro Hac Vice pending
Munger, Tolles & Olson LLP 1155 F. St., NW, 7th Floor Washington, DC 20004 Tel: (202) 220-1100 Fax: (202) 0220-2300 Chad.Golder@mto.com Sarah.Boyce@mto.com
Counsel for Amicus Curiae Association of American Universities

 </s> Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 1 of 41 PageID #: 1469
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al,
on behalf of themselves and others similarly situated,
Petitioners,
v.
DONALD J. TRUMP, President of the United States, et ah,
Respondents.

Case No. l:17-cv-00480 (Amon, J.)
Date: February 16, 2017

BRIEF OF FORMER NATIONAL SECURITY OFFICIALS AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Harold Hongju Koh Hope Metcalf RULE OF LAW CLINIC Yale Law School 127 Wall Street, P.O. Box 208215 New Haven, CT 06520-8215 203-432-4932

Jonathan Freiman Tahlia Townsend WIGGIN AND DANA LLP 265 Church Street P.O. Box 1832 New Haven, CT 06508-1832 203-498-4584

Counselfor Amici Curiae

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 2 of 41 PageID #: 1470
1
TABLE OF CONTENTS
TABLE OF AUTHORITIES.....................................................................................ii INTEREST OF AMICI CURIAE.............................................................................. 1 ARGUMENT.............................................................................................................. 2 I. THE EXECUTIVE ORDER CANNOT BE JUSTIFIED ON
NATIONAL SECURITY OR FOREIGN POLICY GROUNDS.................3 A. There is no national security or foreign policy basis for suspending
entry of aliens from the seven named countries....................................... 5 B. The suspension of refugee admissions is not justified by national
security or foreign policy concerns.........................................................10 II. THE ORDER’S OVERBREADTH HARMS OUR NATIONAL
SECURITY AND FOREIGN POLICY INTERESTS................................ 13 A. The Order is of unprecedented scope..................................................... 13 B. The Order will do serious damage to our national security and foreign
policy interests........................................................................................16 1. The Order will endanger U.S. troops in the field............................16 2. The Order will disrupt essential counterterrorism, foreign policy,
and national security partnerships....................................................17 3. The Order will hinder domestic law enforcement efforts................19 4. The Order will have a devastating humanitarian impact.................20 5. The Order will cause economic damage to American citizens and
residents........................................................................................... 21 III. THE ORDER WAS ILL-CONCEIVED, POORLY IMPLEMENTED
AND ILL-EXPLAINED................................................................................. 22 CONCLUSION......................................................................................................... 27 APPENDIX: LIST OF AMICI

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 3 of 41 PageID #: 1471
11
TABLE OF AUTHORITIES
Cases Azizv. Trump, No. l:17-cv-00116-LMB-TCB, _ F.Supp.3d__, 2017 WL 580855
(E.D. Va. Feb. 13,2017)....................................................................................... 4 Vill. OfArlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).......26 Washington v. Trump, No. 17-35105, _F.3d_, 2017 WL 526497, slip op. (9th
Cir. Feb. 9, 2017)....................................................................................... 1,4, 14
Statutes 8U.S.C. § 1182...................................................................................................... 23 8U.S.C. § 1187........................................................................................................ 9
Regulations Exec. Order No. 11,030, 27 Fed. Reg. 5,847 (Jun. 19, 1962)...............................25 Exec. Order No. 12,324, 46 Fed. Reg. 48,109 (Sept. 29, 1981)............................14 Exec. Order No. 12,807, 57Fed. Reg. 23,133 (May 24, 1992).......................14, 15 Exec. Order No. 13,694, 80 Fed. Reg. 18,077 (Apr. 1, 2015)................................ 14 Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (Apr. 19, 2016).............................. 14 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017)..................................3 Proclamation No. 5517, 51 Fed. Reg. 30,470 (Aug. 26, 1986)............................. 15 Proclamation No. 6958, 61 Fed. Reg. 60,007 (Nov. 22, 1996).............................. 14
Other Authorities Adams Nager, et al., The Demographics ofInnovation in the United
States, Information Technology & Innovation Foundation (Feb. 2016)............21 Alex Nowrasteh, Little National Security Benefit to Trump’s Executive Order
on Immigration, CATO at Liberty (Jan. 25, 2017).....................................4, 5,11

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 4 of 41 PageID #: 1472
Ill
Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, Cato Institute (Sept. 13,2016)............................................................................................ 10, 11
Amy Pope, The Screening Process for Refugee Entry into the United States (Nov. 20,2015)....................................................................................................11
Andorra Bruno, Iraqi and Afghan Special Immigrant Visa Programs, Cong. Research Serv. (2016)............................................................................................8
Andorra Bruno, Syrian Refugee Admissions and Resettlement in the United States: In Brief Cong. Research Serv. (2006)................................................................12
Br. for Technology Companies and Other Businesses as Amici Curiae in Support of Appellees, Washington v. Trump, No. 17-35105,__F.3d__ , 2017 WL 526497 (9th Cir. Feb. 9, 2017)............................................................................21
Carl J. Bon Tempo, Americans at the Gate: The United States and Refugees during the Cold War 1 (2008).............................................................................27
Central Intelligence Agency, 11September 2001 Hijackers..................................... 5
Charles R. Babcock, Carter’s Visa Crackdown Won’t Hurt Immediately, Wash. Post (Apr. 9, 1980)...............................................................................................15
Dan de Luce, Trump’s Immigration Order Gives Ammunition to ISIS, Endangers US Troops, Foreign Policy (Jan. 29, 2017).......................................................16
David Bier, Trump’s Ban on Immigration from Certain Countries is Illegal, Cato at Liberty, Dec. 8, 2016..............................................................................15
David Zucchino, Travel Ban Drives Wedge Between Iraqi Soldiers and Americans, N.Y. Times (Feb. 3,2017)............................................................... 16
Edward Alden, The Closing ofthe American Border 104-06 (2008)....................23
Evan Perez et ah, Inside the Confusion ofthe Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017).................................................................24, 25
Felicia Schwartz & Ben Kesling, Countries Under U.S. Entry Ban Aren’t Main Sources of Terror Attacks, The Wall St. J. (Jan. 29, 2017)..................................6
Geneva Sands et ah, Officials Aim to Clarify Impact on Dual Nationals From Trump’s Immigration Executive Order, ABC News (Feb. 1, 2017)............. 26

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 5 of 41 PageID #: 1473
IV
George Washington University Program on Extremism, ISIS in America: From Retweets to Raqqa 6 (Dec. 2015)......................................................................... 5
Henry B. Hogue, Cong. Research Serv., RS22979, Presidential Transition Act: Provisions and Funding (2016).......................................................................... 23
Joby Warrick, Jihadist Groups Hail Trump’s Travel Ban as a Victory, Wash. Post (Jan. 29 2017)............................................................................................. 20
Jon Finer, Sorry, Mr. President: The Obama Administration Did Nothing Similar to Your Immigration Ban, Foreign Policy (Jan. 30, 2017).............................7, 23
Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017)................24, 25
Justin Jouvenal et al., Justice Dept. Lawyer Says 100,000 Visas Revoked Under Travel Ban; State Dept. Says about 60,000, Wash. Post (Feb. 3, 2017)............13
Kevin Liptak, Travel Ban Remains Sticking Point in Trump Calls with US Allies, CUN (Feb. 9, 2017)..................................................................................18
Kristina Cooke & Joseph Ax, U.S. Officials Say American Muslims Do Report Extremist Threats, Reuters (Jun. 16, 2016)......................................................... 19
Loveday Morris, Iraqi Leader to U.S.: Americans Come to Iraq to Fight With ISIS, but I Haven’t Banned You, Wash. Post (January 31, 2017).......................18
Marcelo Rochabrun, Trump Order Will Block 500,000 Legal U.S. Residents from Returning to Americafrom Trips Abroad, ProPublica (Jan. 28, 2017).....13
Maureen Taft-Morales, Cong. Research Serv., Haiti: Efforts to Restore President Aristide, 1991-1994 14 (1995).............................................................................15
Memorandum from Curtis E. Gannon, Acting Assistant Att’y Gen. (Jan. 27,2017)..................................................................................................... 25
Memorandum from Donald F. McGahn II, Counsel to the President, to the Acting Sec’y of State, the Acting Att’y Gen., and the Sec’y of Homeland Sec. (Feb. 1,2017)...................................................................................................... 26
Memorandum from Sally Yates, Acting Att’y Gen., to the Dep’t of Justice (Jan. 30, 2017)............................................................................................................ 26

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 6 of 41 PageID #: 1474
V
Memorandum from Stuart Levey, Assoc. Deputy Att’y Gen., to Dan Levin, Counsel to the Att’y Gen., & David Ayres, Dep’t of Justice Chief of Staff (Oct. 3,2001)...................................................................................................... 23
Michael D. Shear & Ron Nixon, How Trump ’s Rush to Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017).........................24, 25
Michael V. Hayden, Former CIA Chief: Trump’s Travel Ban Hurts American Spies — and America, Wash. Post (Feb. 5, 2017)................................................18
Molly Redden, Trump Powers “Will not be Questioned” on Immigration, Senior Official Says, The Guardian (Feb. 12, 2007)........................................................6
Muslim Public Affairs Council, Data on Post-9/11 Terrorism in the United States (Jun. 2012)............................................................................................... 19
Nora Ellingsten, It \s Not Foreigners Who Are Plotting Here: What the Data Really Show, Lawfare (Feb. 7, 2017).....................................................................6
Oral Argument, Washington v. Trump, No. 17-35105,__F.3d__ , 2017 WL 526497 (9th Cir. Feb. 9, 2017).............................................................................. 6
Patrick O’Neill, How Academics Are Helping Cybersecurity Students Overcome Trump's Immigration Order, Cyberscoop (Jan. 30, 2017).................................21
Peter Bergen et al., Terrorism in America After 9/11, New America Foundation ... 5
Rebecca Kheel, Trump Travel Order Complicates ISIS Fight in Iraq, The Hill (Feb. 1,2017).......................................................................................................16
Rebecca Savransky, Iraq Parliament Approves Reciprocity Measure ’ In Trump Immigration Ban’s Wake, The Hill (Jan. 30, 2017)............................................18
Refugee Processing Center, Interactive Reporting, Admissions and Arrivals ... 7, 19
Robert Pear, Visa Restrictions Chiefly Apply to Iranians Outside ofAmerica, N.Y. Times (Apr. 8, 1980)................................................................................. 15
Sabrina Siddiqui, Trump Signs Extreme Vetting’ Executive Orderfor People Entering the US, The Guardian (Jan. 27, 2017)...................................................5
Sanctions Against Iran Remarks Announcing U.S. Actions, April 7, 1980..........15

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 7 of 41 PageID #: 1475
VI
Stephanie Ott, What Happens to Iraqis who Worked with the US. military, A1 Jazeera (Feb. 1, 2017)........................................................................................ 17
Ten Years After 9/11: Preventing Terrorist Travel, Hearing Before the United States S. Comm, on Homeland Sec. and Governmental Affairs, 112th Cong. 522 (2011) (written statements of Rand Beers and Janice L. Jacobs)..................8
The Security ofU.S. Visa Programs: Hearing Before the S. Comm on Homeland Sec. & Governmental Affairs, 114th Cong. (2016) (written statements of David Donahue and Sarah R. Saldana)......................................................................... 7
The White House, Visa Waiver Program Enhancements (Nov. 30, 2015).............8
Thomas R. Eldridge, et. al., 9/11 and Terrorist Travel: A StaffReport ofthe National Commission on Terrorist Attacks Upon the United States (2004)......23
U.S. Customs and Border Protection, Protecting the Nation from Foreign Terrorist Entry into the United States(Feb. 2, 2017)........................................... 17
U.S. Dep't of Homeland Security, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016)..................................................8, 9
U.S. Dep't of Homeland Security, U.S. Citizenship and Immigration Services (Dec. 3,2015).......................................................................................................12
U.S. Dep’t of Commerce, Department of Commerce Releases October Travel and Tourism Expenditures (Dec. 15, 2016).........................................................21
U.S. Dep’t of Defense & Dep’t of State, Joint Report to Congress: Foreign Military Training (FY 2015-2016)......................................................................17
U.S. Dep’t of Justice, 1980 Statistical Yearbook of the Immigration and Naturalization Service (1981)..............................................................................15
U.S. Dep’t of Justice, 1987 Statistical Yearbook of the Immigration and Naturalization Service (1987)............................................................................ 15
U.S. Dep’t of State et al, Report to the Congress, Proposed Refugee Admissions for Fiscal Year 2016 (2016).................................................................................17
U.S. Dep’t of State, Bureau of Consular Affairs, Report of the Visa Office (2000)...................................................................................................................16

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 8 of 41 PageID #: 1476
Vll
U.S. Dep’t of State, U.S. Refugee Resettlement Processingfor Iraqi and Syrian Beneficiaries ofan Approved 1-130 Petition (Mar. 11, 2016)............................12
U.S. Dep’t of State, The Refugee Processing and Screening System................4, 12
U.S. Dep’t of State, US. Refugee Admissions Program FAQs............................. 11
U.S. Dep’t of State, Visa Waiver Program............................................................9 U.N. High Commissioner for Refugees, Resettlement........................................... 13 Urban Justice Center, International Refugee Assistance Project, IRAP Stands
With Iraqi Allies of the United States Affected by Executive Order (Feb. 1,2017)......................................................................................................17 William Glaberson & Helene Cooper, Obama’s Plan to Close Prison at Guantanamo May Take Year, N.Y. Times (Jan. 12, 2009)................................23

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 9 of 41 PageID #: 1477 1
INTEREST OF AMICI CURIAE Amici curiae are former national security, foreign policy and intelligence officials who have worked on pressing national security matters in the U.S. government. A number of amici have worked at senior levels in administrations of both political parties. Amici have collectively devoted decades to combatting the various terrorist threats that the United States faces in an increasingly dangerous and dynamic world. Amici have all held the highest security clearances. A significant number were current on active intelligence regarding credible terrorist threat streams directed against the United States as recently as one week before the issuance of the January 27, 2017 Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States” (“Order”).1 Amici all agree that the United States faces real threats from terrorist networks and must take all prudent and effective steps to combat them, including the appropriate vetting of travelers to the United States. Amici are nevertheless not aware of any specific threat that would justify the broad bans on entry into the United States established by this Order. In amici’s professional opinion, the Order
1 This amicus brief derives from the sworn Joint Declaration of ten of the signatories, first submitted in Washington v. Trump, No. 17-35105,__F.3d_ 2017 WL 526497, slip op. (9th Cir. Feb. 9, 2017) [hereinafter “Ninth Circuit Opinion”], and also attached to the Petitioners’ motion.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 10 of 41 PageID #: 1478
2
cannot be justified on national security or foreign policy grounds, and ultimately, the Order undermines—rather than enhances—the security of the United States.
ARGUMENT The Order serves no rational national security or foreign policy purpose. Certainly, it does not perform its declared task of “protecting the nation from foreign terrorist entry into the United States.” To the contrary, the Order disrupts thousands of lives, including those of refugees and visa holders who have already been vetted by standing procedures that Respondents have not shown to be inadequate. Left in place, the Order could do long-term damage to our national security and foreign policy interests. It will endanger troops in the field, and disrupt key counterterrorism and national security partnerships. It will aid the propaganda effort of the Islamic State in Iraq and the Levant (“ISIL”) and support its recruitment message. By feeding the narrative that the United States is at war with Islam, the Order will impair relationships with the very Muslim communities that law enforcement professionals rely on to address the threat of terrorism. And it will have a damaging humanitarian and economic impact. In prior cases, courts have deferred to the “considered judgment” of the President only after administrative records have revealed that the President’s decision rested on counsel from expert agencies with broad experience on the

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 11 of 41 PageID #: 1479
3
matters presented. Here, there is no evidence that the Order was subjected to an
interagency legal and policy process. Rebranding a proposal first advertised as a
“Muslim Ban” as “Protecting the Nation from Foreign Terrorist Entry into the
United States” does not disguise the Order’s discriminatory intent, or make it
necessary, effective or faithful to America’s Constitution, laws, and values.
I. THE EXECUTIVE ORDER CANNOT BE JUSTIFIED ON NATIONAL SECURITY OR FOREIGN POLICY GROUNDS. On January 27, 2017, President Donald Trump signed an executive order
imposing a number of bans on the entry of non-citizens into the United States.2
The President’s stated goals for the Order were to “protect[] the nation from foreign terrorist entry into the United States” and to “ensure that those approved
for admission do not intend to harm Americans and that they have no ties to
terrorism.”3 As former U.S. officials responsible for the national security and foreign
relations of the United States in multiple presidential administrations, we have
devoted our careers to the same goals. Our first priority has always been the
2 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017). The Order bans entry into the United States by nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days, bans all refugee admissions for 120 days, and indefinitely bans the entry of all Syrian refugees. The Order exempts diplomats (from the ban on entry for nationals) and refugees whom on a case-by-case basis are deemed to be in the national interest (from the ban on all refugee admissions for 120 days). 3 Id.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 12 of 41 PageID #: 1480
4
safety and welfare of the American people. Yet the Order bears no rational relation to the President’s stated aims. It targets countries whose nationals have
committed no lethal terrorist attacks on U.S. soil in the last forty years. It bars the entry of refugees—the vast majority of whom are vulnerable women and children4—when in the modem era of screening, no refugee has ever killed a U.S.
citizen in a terrorist attack in the United States.5
Even now, weeks after the signing of the Order, Respondents have supplied no information that would justify such a categorical ban. They identify no basis for believing that there is a heightened or particularized threat from these seven
countries. They make no showing that our immigration system has suffered from inadequate consideration of national origin or religious affiliation, and identify no
flaw in the current individualized vetting procedures—developed by national security officials across several presidential administrations in response to particular threats identified by U.S. intelligence.6
4 U.S. Dep’t of State, The Refugee Processing and Screening System, https://www.state.gov/documents/organization/266671 .pdf. 5 Alex Nowrasteh, Little National Security Benefit to Trump’s Executive Order on Immigration, CATO at Liberty (Jan. 25, 2017) [hereinafter “Nowrasteh 2017”]. 6 Ninth Circuit Opinion, supra note 1, at 26 (“Although we agree that the Government’s interest in combating terrorism is an urgent objective of the highest order, the Government has done little more than reiterate that fact.” (internal citations and quotation marks omitted)); Aziz v. Trump, No. 1:17-cv-00116-LMBTCB, _ F.Supp.3d__at 6, 2017 WL 580855 (E.D. Va. Feb. 13, 2017)

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 13 of 41 PageID #: 1481
5
A. There is no national security or foreign policy basis for suspending entry of aliens from the seven named countries.
No rational national security purpose is served by the Order’s blanket ban on
entry into the United States of nationals of Iraq, Syria, Sudan, Iran, Somalia, Libya,
and Yemen.
First, not a single American has died in a terrorist attack on U.S. soil at the
hands of citizens of these seven nations in the last forty years.7 The Order opens
with a reference to the September 11, 2001 attacks, and White House officials have
since pointed to those attacks as justification for its restrictions.8 But none of the
September 11 hijackers were citizens of the seven targeted countries.9 In fact, the
overwhelming majority of individuals who were charged with—or who died in the
course of committing—terrorist-related crimes inside the United States since
September 11 have been U.S. citizens or legal permanent residents.10
(“Defendants . . . have not offered any evidence to identify the national security concerns that allegedly prompted this EO, or even described the process by which the president concluded that this action was necessary.” (citations omitted)). 7 Nowrasteh 2017, supra note 5. 8 Jan. 27 Order §1; Sabrina Siddiqui, Trump Signs ‘Extreme Vetting’ Executive Orderfor People Entering the US, The Guardian (Jan. 27, 2017). 9 Central Intelligence Agency, 11 September 2001 Hijackers, https://www.cia.gov/news-information/speeches-testimony/2002/DCI_18_June _testimony_new.pdf. 10 See Peter Bergen et ah, Terrorism in America After 9/11, New America Foundation, www.newamerica.org/in-depth/terrorism-in-america/; George Washington University Program on Extremism, ISIS in America: From Retweets to

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 14 of 41 PageID #: 1482
6
Second, Respondents have identified no information or basis for believing
that a heightened or particularized future threat has suddenly arisen from the seven
named countries. Those of us who were current on active intelligence concerning
all credible terrorist threat streams directed against the United States as of January
20, 2017 know of no specific threat—-just seven days later—that would justify the
ban of these seven countries. The Order itself points to no such factual basis, and
Respondents have offered none.11
Third, Respondents have identified no flaw in existing procedures that
would justify the bans in the Order. They offer no reason to shift abruptly to
group-based bans, when the United States already has a tested system of
individualized vetting, developed and implemented by national security
professionals across the government. Since the September 11, 2001 attacks, the
United States has developed a rigorous system of security vetting, leveraging the
Raqqa 6 (Dec. 2015), https://cchs.gwu.edu/isis-in-america; Nora Ellingsten, It’s Not Foreigners Who Are Plotting Here: What the Data Really Show, Lawfare (Feb. 7, 2017); see also Felicia Schwartz & Ben Kesling, Countries Under US. Entry Ban Aren’t Main Sources of Terror Attacks, The Wall St. J. (Jan. 29, 2017). One other set of data, relied on by White House officials, has been widely criticized for its definition of terrorism-related offenses, among other issues. See, e.g., Molly Redden, Trump Powers “Will Not be Questioned” on Immigration, Senior Official Says, The Guardian (Feb. 12, 2007), https ://www.theguardian.com/us-news/2017/feb/12/trump-administrationconsidering-narrower-travel-ban. 11 Oral Argument, Washington v. Trump, No. 17-35105, at 9:30, http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000010885.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 15 of 41 PageID #: 1483
7
full capabilities of the law enforcement and intelligence communities. This vetting
system is applied to travelers not once, but multiple times, and it is continually re­ evaluated to ensure its effectiveness. Successive administrations have strengthened
the vetting process through robust information-sharing and data integration. This allows the government to identify potential terrorists without resorting to blanket
bans on countries or refugees.12 Finally, the Order cannot be defended as a mere continuation of recent U.S.
counterterrorism policy. Because threat streams constantly evolve, we sought
continually to improve vetting when serving as national security officials. That
effort included reviews in 2011 and 2015-16, when the U.S. government acted in response to particular threats identified by intelligence sources. In 2011, after
receiving derogatory information regarding two Iraqi nationals who had entered
the United States as refugees, the U.S. government undertook an extensive interagency review of its vetting system. The flow of refugees from Iraq slowed
during the pendency of the review,13 and upon completion of the review, the U.S.
12 See, e.g., The Security of U.S. Visa Programs: Hearing Before the S. Comm, on Homeland Sec. & Governmental Affairs, 114th Cong. (2016) (written statements of David Donahue and Sarah R. Saldana), https://www.hsgac.senate.gov/hearings/thesecurity-of-us-visa-pro grams. 13 Refugee Processing Center, Interactive Reporting, http://ireports.wrapsnet.org/InteractiveReporting/EnumType/Report?ItemPath=/rpt_WebArrivalsReports/MX%20%20Arrivals%20by%20Nationality%20and%20Religion; Jon Finer, Sorry, Mr.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 16 of 41 PageID #: 1484
government implemented new, stronger security procedures in areas of identified
vulnerability.14
Likewise, in late 2015 and early 2016, in response to the emerging threat
posed by ISIL, the U.S. government took several steps to strengthen the Visa
Waiver Program, which allows citizens from thirty-eight approved countries to
travel to the United States without first obtaining a visa. President Obama
introduced a series of new measures to enhance security screenings and traveler
risk assessments in the program and bolster our relationship with partner
countries.15 Around the same time, President Obama signed into law a statute that
removed from the Visa Waiver Program those nationals of existing Visa Waiver
Program countries who: (1) had been present in Iraq, Syria, Iran or Sudan after
President: The Obama Administration Did Nothing Similar to Your Immigration Ban, Foreign Policy (Jan. 30, 2017). 14 Ten Years After 9/11: Preventing Terrorist Travel, Hearing Before the United States S. Comm, on Homeland Sec. and Governmental Affairs, 112th Cong. 522 (2011) (written statements of Rand Beers and Janice L. Jacobs), https://www.hsgac.senate.gov/hearings/ten-years-after-9/ll-preventing-terroristtravel; Andorra Bruno, Iraqi and Afghan Special Immigrant Visa Programs, Cong. Research Serv., 14 (2016). 15 The White House, Visa Waiver Program Enhancements (Nov. 30, 2015), https://obarnawhitehouse.archives.gOv/the-press-office/2015/l 1/30/fact-sheet-visawaiver-program-enhancements; U.S. Dep't of Homeland Security, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016), https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictionsvisa-waiver-program.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 17 of 41 PageID #: 1485
9
March 1, 2011, or (2) were dual nationals of one of those four countries.16 Several months later, the Secretary of Homeland Security—acting under the new statute and in consultation with the Director of National Intelligence and the Secretary of State—expanded the list of four countries to include Yemen, Libya and Somalia.17
Contrary to Respondents’ claims, these previous reforms provide no justification for a blanket, group-based ban on the entry of nationals from these seven countries. The enhancement of security in the refugee system allowed for more searching, individualized vetting of travelers, the opposite of the categorical ban in this Order. Likewise, the reforms to the Visa Waiver Program did not automatically bar anyone—including nationals of any country—from travel to the United States. The affected individuals were simply required to obtain individually-vetted visas before entering the United States, just as nationals from the more than 150 other nations not currently part of the Visa Waiver Programs must do.
To keep our country safe from terrorist threats, the U.S. government must gather all credible evidence about growing threat streams—including through the
16 8 U.S.C. § 1187; U.S. Dep’t of State, Visa Waiver Program, https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html. 17 The exemptions for Yemen, Libya and Somalia only applied to those who had traveled to or been present in one of those countries, not dual nationals. U.S. Dep’t of Homeland Security, DHS Announces Further Travel Restrictions for the Visa Waiver Program, supra note 15.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 18 of 41 PageID #: 1486
10
best available intelligence—to thwart those threats before they ripen. Through the years, national security-based immigration restrictions have: (1) responded to specific, credible threats based on individualized information, (2) rested on the best available intelligence, and (3) been subject to thorough interagency legal and policy review. The present Order does not rest on such tailored grounds, but rather on (1) generalized bans, (2) that are not supported by any new intelligence that Respondents have cited or of which we are aware, and (3) were not vetted through careful interagency legal and policy review.
B. The suspension of refugee admissions is not justified by national security or foreign policy concerns.
The Order’s 120-day ban on refugee admissions, and its indefinite ban on Syrian refugee admissions, serve no national security or foreign policy purpose. We know of no factual basis for Respondents’ claim that refugees pose a particular security threat to the United States that would justify the Order’s categorical bans.
From 1975 to the end of 2015, over three million refugees have been admitted to the United States. According to a recent study, only three have killed people in terrorist attacks on U.S. soil.18 All three were Cuban refugees, who murdered three people in two attacks in the 1970s. Critically, these refugees were admitted and carried out their crimes before the creation of the modem refugee 18 Alex Nowrasteh, Terrorism and Immigration: A Risk Analysis, Cato Institute (Sept. 13, 2016).

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 19 of 41 PageID #: 1487
11
vetting system in 1980.19 No refugee has killed an American in a terrorist attack in the United States since that system was put in place.20 According to the study,
over that same period, only twenty refugees were convicted of any terrorism-
related crimes on U.S. soil at all.21 In part, this is because refugees already receive the most thorough vetting of
any travelers to the United States.22 Refugee candidates are vetted recurrently throughout the resettlement process, as “pending applications continue to be checked against terrorist databases, to ensure new, relevant terrorism information has not come to light.”23 By the time refugees referred by the United Nations High Commissioner for Refugees (“UNHCR”) are approved for resettlement in the United States, they have been reviewed not only by UNHCR but also by the National Counterterrorism Center, the Federal Bureau of Investigation, the
Department of Homeland Security, the Department of Defense, the Department of State and the U.S. intelligence community more broadly.24
19 Id. 20 Id. 21 Id.; see also Nowrasteh 2017, supra note 5. 22 U.S. Dep’t of State, U.S. Refugee Admissions Program FAQs, https://www.state.gOv/j/prm/releases/factsheets/2017/266447.htm. 23 Amy Pope, The Screening Process for Refugee Entry into the United States (Nov. 20, 2015), https://obamawhitehouse.archives.gov/blog/2015/ll/20/ infographic-screening-process-refugee-entry-united-states. 24 U.S. Dep’t of State, U.S. Refugee Admissions Programs FAQs, supra note 22.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 20 of 41 PageID #: 1488
12
The refugee vetting process is also reviewed and strengthened on an ongoing
basis in response to particular threats.25 For Syrian applicants, the Department of
Homeland Security recently added a layer of enhanced review that involves
collaboration between the Refugee, Asylum, and International Operations
Directorate and the Fraud Detection and National Security Directorate. Among
other measures, this review provided additional, intelligence-driven support to
refugee adjudicators that U.S. officials could then use to more precisely question
refugees during their security interviews.26 Respondents allege no specific
information about any vetting step omitted by current procedures.
While the United States’ own individualized vetting process is the most
important step, additional considerations make the U.S. refugee system difficult for
terrorists to exploit. Under current vetting procedures, refugees often wait eighteen
to twenty-four months to be cleared for entry into the United States.27 Further, of
all refugees determined by the UNHCR to be eligible for resettlement, less than
25 U.S. Dep’t of Homeland Security, U.S. Citizenship and Immigration Services (Dec. 3, 2015), https://www.uscis.gov/sites/default/files/ USCIS/Refugee%2C%20Asylum%2C%20and%20Int%271%200ps/Refugee_Secu rity_S creening_F act_Sheet.pdf. 26 U.S. Dep't of State, The Refugee Processing and Screening System, supra note 5; Andorra Bruno, Syrian Refugee Admissions and Resettlement in the United States: In Brief Cong. Research Serv., 4-5 (2016). 27 U.S. Dep’t of State, U.S. Refugee Resettlement Processingfor Iraqi and Syrian Beneficiaries ofan Approved 1-130 Petition (Mar. 11, 2016), https://www.state.gOv/j/prm/releases/factsheets/2016/254649.htm.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 21 of 41 PageID #: 1489
13
one percent were resettled in any country at all in 2015,28 meaning that a would-be terrorist posing as a refugee has very little chance of being resettled anywhere. Finally, the UNHCR resettlement program places refugees in dozens of countries, and refugees do not decide where they are resettled or which country accepts them, meaning that the odds of any individual refugee being settled into the United States in particular are exceedingly low. II. THE ORDER’S OVERBREADTH HARMS OUR NATIONAL
SECURITY AND FOREIGN POLICY INTERESTS. The Order’s overreach will do lasting harm to the national security and foreign policy interests of the United States. A. The Order is of unprecedented scope. The Order effectively amounts to a bar on entry to the United States of nationals from any of the seven listed countries. The Order revoked the visas of anywhere between 60,000 to 100,000 people,29 initially encompassed as many as 500,000 green card holders,30 and creates a forward-looking ban on countless more
28 U.N. High Commissioner for Refugees, Resettlement, http://www.unhcr.org/enus/resettlement.html. 29 Justin Jouvenal et al., Justice Dept. Lawyer Says 100,000 Visas Revoked Under Travel Ban; State Dept. Says about 60,000, Wash. Post (Feb. 3, 2017). 30 Marcelo Rochabrun, Trump Order Will Block 500,000 Legal US. Residents from Returning to America from Trips Abroad, ProPublica (Jan. 28, 2017). The Order could conceivably again encompass green card holders depending upon whether a

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 22 of 41 PageID #: 1490
14
individuals. The Order bars doctors and patients, grandmothers and infants, parents and children, tourists and business travelers, police officers and those fighting alongside our Service Members abroad, all without regard to individual threat or circumstance.
This is an order of unprecedented scope. We know of no case where a president has invoked authority under the Immigration and Nationality Act to suspend admission of such a sweeping class of people. Even after the September 11 attacks, the U.S. government did not invoke the provisions of law cited by the Administration to broadly bar entrants based on nationality, national origin or religious affiliation. Across the decades, executive orders under the Immigration and Nationality Act have generally targeted specific government officials,31 undocumented immigrants32 or individuals whose personalized screenings indicated that they posed a national security risk.33
White House Counsel opinion is deemed authoritative by the implementing agencies. See Ninth Circuit Opinion, supra note 2, at 21-22. 31 See, e.g., Proclamation No. 6958, 61 Fed. Reg. 60,007 (Nov. 22, 1996). 32 See, e.g., Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (May 24, 1992); Exec. Order No. 12,324, 46 Fed. Reg. 48,109 (Sept. 29, 1981). 33 See, e.g., Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (Apr. 19, 2016); Exec. Order No. 13,694, 80 Fed. Reg. 18,077 (Apr. 1, 2015).

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 23 of 41 PageID #: 1491
15
Some have claimed that historical examples involving Cuba, Iran, or Haiti
are akin to this Order. But the first two orders included large exceptions,34 and the
third imposed no restrictions on lawful travel by visa holders at all.35 And above
34 In 1980, during the Iranian Hostage Crisis, President Carter invalidated all visas issued or reissued to Iranian citizens for future entry into the country. Sanctions Against Iran Remarks Announcing U.S. Actions, April 7, 1980, http://www.presidency.ucsb.edu/ws/7pidA33233. But the White House also carved out exceptions for humanitarian need, to include those “visiting a sick aunt,” and students who were in a course of study in the United States. The White House even encouraged Iranians in the United States whose visas were set to expire to apply for asylum. One White House official said, “[o]nce in the good old United States legally, or illegally for the matter, they are cloaked in the mantle of the constitutional and legal protections we all value.” Charles R. Babcock, Carter’s Visa Crackdown Won’t Hurt Immediately, Wash. Post (Apr. 9, 1980); Robert Pear, Visa Restrictions Chiefly Apply to Iranians Outside ofAmerica, N.Y. Times (Apr. 8, 1980); see U.S. Dep’t of Justice, 1980 Statistical Yearbook of the Immigration and Naturalization Service (1981).
In 1986, in the course of a diplomatic impasse over a migration agreement, President Reagan issued a presidential proclamation suspending the “[ejntry of Cuban nationals as immigrants” into the United States. Proclamation No. 5517, 51 Fed. Reg. 30,470 (Aug. 26, 1986). But that proclamation included a major exception for the immediate relatives of U.S. citizens. Id.', U.S. Dep’t of Justice, 1987 Statistical Yearbook of the Immigration and Naturalization Service (1987); see also David Bier, Trump’s Ban on Immigration from Certain Countries is Illegal, Cato at Tiberty, Dec. 8, 2016. Both actions were taken to exert pressure against a particular national government—and in the case of Cuba, to “resume normal migration”—not to minimize a threat posed by particular people. 35 In 1991, President Bush issued an Executive Order that imposed restrictions on “undocumented aliens” who were “coming by sea to the United States without necessary documents.” Exec. Order 12,807, 57 Fed. Reg. 23,133 (June 1, 1992). However, legal travel and immigration continued from Haiti into the United States in this period. Even as to those without documents, the Bush Administration offered those repatriated the option of seeking in-country refugee processing. Maureen Taft-Morales, Cong. Research Serv., Haiti: Efforts to Restore President

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 24 of 41 PageID #: 1492
16
all, no modem example even approaches the unqualified sweep of this Order, which bans nearly 220 million people from seven separate countries from traveling to the United States.
B. The Order will do serious damage to our national security and foreign policy interests.
The Order will harm the interests of the United States in a number of respects.
1. The Order will endanger U.S. troops in the field. Every day, U.S. Service Members work and fight alongside allies from some of the named countries, who put their lives on the line to protect Americans and further American interests abroad. Those barred by the Order include individuals working alongside our men and women in Iraq fighting against ISIL.36 Soldiers from these countries have already voiced resentment at the Order.37 The Order
Aristide, 1991-1994, 14 (1995); U.S. Dep’t of State, Bureau of Consular Affairs, Report ofthe Visa Office (2000), tables XII, XIII, XIV, XV, XVIII, XIX, https ://travel. state .gov/content/visas/en/law-and-policy/statistics/annualreports/report-of~the-visa-office-2000.html. 36 Rebecca Kheel, Trump Travel Order Complicates ISIS Fight in Iraq, The Hill (Feb. 1, 2017); Dan de Luce, Trump’s Immigration Order Gives Ammunition to ISIS, Endangers US. Troops, Foreign Policy (Jan. 29, 2017). 37 David Zucchino, Travel Ban Drives Wedge Between Iraqi Soldiers and Americans, N.Y. Times (Feb. 3, 2017).

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 25 of 41 PageID #: 1493
17
may also obstruct ongoing training, education, and other security cooperation
programs underway with several of the listed countries.38
Moreover, the Order will affect interpreters and others who have assisted our
troops at great risk to their own lives. The Order initially banned all such
individuals from coming to the United States. Days later, U.S. officials announced
that it would allow “the entry of Iraqi nationals with a Special Immigrant Visa to
the United States.”39 But even that step leaves unaddressed tens of thousands of
others who assisted the United States and who are waiting for admission as
“Priority 2” refugees outside of the now closed Special Immigrant Visa program.40
By discouraging future assistance and cooperation from these and other affected
military allies and partners, the Order will jeopardize the safety and effectiveness
of our troops.
2. The Order will disrupt essential counterterrorism, foreign policy, and national security partnerships.
38 U.S. Dep’t of Defense & Dep’t of State, Joint Report to Congress: Foreign Military Training (FY 2015-2016). 39 U.S. Customs and Border Protection, Protecting the Nation from Foreign Terrorist Entry into the United States (Feb. 2, 2017). 40 U.S. Dep’t of State et al., Report to the Congress, Proposed Refugee Admissions for Fiscal Year 2016, at 57 (2016); Stephanie Ott, What Happens to Iraqis who Worked with the US. military, Al Jazeera (Feb. 1, 2017); Urban Justice Center, International Refugee Assistance Project, IRAP Stands With Iraqi Allies of the United States Affected by Executive Order (Feb. 1, 2017).

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 26 of 41 PageID #: 1494
18
The Order will disrupt key counterterrorism, foreign policy, and national security partnerships that are critical to our country’s efforts to address the threat
posed by terrorist groups such as ISIL. The Order has sparked intense international
criticism and alienated U.S. allies. Partner countries in the Middle East, on whom
we rely for vital counterterrorism cooperation, are expressing disapproval and even
threatening reciprocity, jeopardizing years of diplomatic effort.41
The Order will also endanger U.S. intelligence sources in the field. For upto-date information, our intelligence officers often rely on human sources in some
of the countries listed. The Order breaches faith with those very sources, who have
risked much or all to keep Americans safe—and whom our officers had promised
to protect.42 Finally, by suspending visas, this Order halts the collection of important intelligence that occurs during visa screening processes, information that
can be used to recruit agents and identify regional trends of instability.43
41 Rebecca Savransky, Iraq Parliament Approves ‘Reciprocity Measure ’ In Trump Immigration Ban’s Wake, The Hill (Jan. 30, 2017); Loveday Morris, Iraqi Leader to US.: Americans Come to Iraq to Fight With ISIS, but I Haven’t Banned You, Wash. Post (January 31, 2017); Kevin Liptak, Travel Ban Remains Sticking Point in Trump Calls with US Allies, CNN (Feb. 9, 2017). 42 Michael V. Hayden, Former CIA Chief: Trump’s Travel Ban Hurts American Spies ~~ and America, Wash. Post (Feb. 5, 2017). 43 This process is particularly important in countries like Iran and Libya, where internal conflict or lack of diplomatic ties limit on-the-ground intelligence collection.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 27 of 41 PageID #: 1495
19
3. The Order will hinder domestic law enforcement efforts.
Domestic law enforcement relies heavily on partnerships with American
Muslim communities to fight homegrown terrorism.44 One report found that in the
years since September 11, 2001, Muslim communities have helped U.S. security
officials prevent nearly two out of every five Al-Qaeda plots threatening the
United States.45 By alienating Muslim-American communities in the United
States, the Order will harm our efforts to enlist their aid in identifying radicalized
individuals who might launch attacks of the kind recently seen in San Bernardino
and Orlando.
The Order’s disparate impact on Muslim travelers and immigrants feeds
ISIL’s propaganda narrative and sends the wrong message to the Muslim
community at home and abroad: that the U.S. government is at war with them
based on their religion.46 Less than a day after President Trump signed the Order,
44 Kristina Cooke & Joseph Ax, US. Officials Say American Muslims Do Report Extremist Threats, Reuters (Jun. 16, 2016). 45 Muslim Public Affairs Council, Data on Post-9/11 Terrorism in the United States (Jun. 2012), http://www.mpac.org/assets/docs/publications/MPAC-Post911 -Terrorism-Data.pdf. 46 Muslim refugees from the seven listed countries made up 82.2 percent of all Muslim refugee arrivals to the United States from January 1, 2016 to February 11, 2017. Refugee Processing Center, Interactive Reporting, Admissions and Arrivals http://ireports.wrapsnet.org/InteractiveReporting/EnumType/Report? ItemPath=/rpt_WebArrivalsReports/MX%2 0%2 0Arrivals%2 Oby%2 ONationality% 20and%20Religion.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 28 of 41 PageID #: 1496
20
jihadist groups began citing its contents in recruiting messages online.47 The Order may even endanger Christian communities overseas, by handing ISIL a recruiting tool and propaganda victory that spreads their message that the United States is engaged in a religious war.
4. The Order will have a devastating humanitarian impact. The Order will have an immediate and devastating humanitarian impact. First and foremost, the Order disrupts the travel of men, women and children who have been victimized by actual terrorists. Tens of thousands of other travelers today face deep uncertainty about whether they may travel to or from the United States for reasons including medical treatment, study or scholarly exchange, funerals or other pressing family reasons. While the Order allows the Secretaries of State and Homeland Security to admit travelers from targeted countries on a caseby-case basis, in our experience it would be unrealistic for these overburdened agencies to apply such procedures to every one of the thousands of affected individuals with urgent and compelling needs to travel. Finally, closing our borders to refugees who otherwise would have had the opportunity to resettle in the United States will keep them in dangerous conditions and shift the burden to overstretched allies who are currently accepting far more than their fair share of refugees.
47 Joby Warrick, Jihadist Groups Hail Trump’s Travel Ban as a Victory, Wash. Post (Jan. 29 2017).

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 29 of 41 PageID #: 1497
21
5. The Order will cause economic damage to American citizens and residents.
Finally, the Order will affect many foreign travelers who annually inject
hundreds of billions of dollars into the U.S. economy, supporting well over a
million U.S. jobs.48 Since the Order was issued, dozens of affected companies
have noted the damaging impact it can be expected to have on strategic economic
sectors including defense, technology, and medicine.49 About a third of U.S.
innovators were born outside the United States, and their scientific and
technological innovations often contribute to making our nation and the world
safe.50 The harm caused by the ban to the economic dynamism of our country will
carry long-term negative and serious consequences for our national security.
48 U.S. Dep’t of Commerce, Department of Commerce Releases October Travel and Tourism Expenditures (Dec. 15, 2016), http://trade.gov/press/pressreleases/2016/department-of-commerce-releases-october-travel-tourismexpenditures-121516. asp. 49 See, e.g., Br. for Technology Companies and Other Businesses as Amici Curiae in Support of Appellees, Washington v. Trump, No. 17-35105,__F.3d__ , 2017 WL 526497 (9th Cir. Feb. 9, 2017). 50 Adams Nager, et al., The Demographics ofInnovation in the United States, Information Technology & Innovation Foundation 29 (Feb. 2016), http://www2.itif.org/2016-demographics-of~innovation.pdf. Iran’s universities, for example, have produced an “inordinate amount of intellectual talent in computer science and cybersecurity.” These scientists are drawn to universities in the United States, where their research is then used by entities such as the Office of Naval Research and DARPA. Patrick O’Neill, How Academics Are Helping Cybersecurity Students Overcome Trump’s Immigration Order,

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 30 of 41 PageID #: 1498
22
III. THE ORDER WAS ILL-CONCEIVED, POORLY IMPLEMENTED AND ILL-EXPLAINED. Respondents have presented no evidence that the Order was subject to the
thorough interagency policy and legal processes designed to address current terrorist threats.
In every recent administration, presidents considering a change to immigration policy have followed an interagency review process that allows experts and security professionals to ensure that all relevant uncertainties are addressed by policy and legal experts, appropriate preparations are made for implementation, and any potential risks are effectively mitigated. Before recommendations are submitted to the President, the National Security Council oversees a legal and policy process that typically includes the following important components: a review by the career professionals in institutions of the U.S. government charged with implementing an order; a review by the career lawyers in those institutions to ensure legality and consistency in interpretation; and a senior policy review across all relevant agencies, including Deputies and Principals at the cabinet level.
Cyberscoop (Jan. 30, 2017), https://www.cyberscoop.com/trump-immigration-bancybersecurity-iran-protests/.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 31 of 41 PageID #: 1499
23
This practice of interagency deliberation has been followed even—and
especially—in times of national emergency in order to set temporary exclusions or
establish criteria for admission to the United States. In the immediate aftermath of
the September 11, 2001 attacks, when the Bush Administration considered whether
the President should invoke 8 U.S.C. § 1182(f) to bar certain immigrants or take
other actions to secure the border, officials engaged in consultations across the
national security agencies to arrive at a decision.51 The reexamination of the
vetting system in 201152 and the security reforms to the Visa Waiver Program in
2015-1653 reflect similar interagency consultation.
The process that produced this Order departed from decades of standard
practice across administrations of both parties.54 Respondents offer no evidence
that the present Order resulted from experienced intelligence and security
professionals recommending changes in response to identified threats. We know
51 Edward Alden, The Closing ofthe American Border 104-06 (2008); Thomas R. Eldridge, et ah, 9/11 and Terrorist Travel: A StaffReport ofthe National Commission on Terrorist Attacks Upon the United States 151-54 (2004); Memorandum from Stuart Levey, Assoc. Deputy Att’y Gen., to Dan Levin, Counsel to the Att’y Gen., & David Ayres, Dep’t of Justice Chief of Staff (Oct. 3, 2001). 52 Jon Finer, supra note 13. 53 See supra notes 15-17 and surrounding text. 54 This is no less true of executive orders issued at the start of a new presidency. See, e.g., Henry B. Hogue, Cong. Research Serv., Presidential Transition Act: Provisions and Funding (2016); William Glaberson & Helene Cooper, Obama’s Plan to Close Prison at Guantanamo May Take Year, N.Y. Times (Jan. 12, 2009).

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 32 of 41 PageID #: 1500
24
of no process underway before January 20, 2017 to change current immigration
yetting procedures. According to extensive reporting, since that date, Respondents
followed no such process.55 Nor, apparently, did the White House consult officials
from any of the seven agencies tasked with enforcing immigration laws, much less
the congressional committees and subcommittees that oversee them. Respondents’
repeated need to clarify confusion that ensued in the wake of the Order only
confirms that the Order received little, if any, advance scrutiny by the Departments
of State, Justice, Homeland Security or the intelligence community.56
As telling, this Order was apparently issued without interagency legal
process. In recent history, administrations of both political parties have followed a
protocol of submitting proposed Orders to the Attorney General, the Justice
Department’s Office of Legal Counsel (“OLC”) and all other agency legal offices
55 The Secretary of Homeland Security reportedly received his first lull briefing as the President signed the Order. Michael D. Shear & Ron Nixon, How Trump’s Rush to Enact an Immigration Ban Unleashed Global Chaos, N.Y. Times (Jan. 29, 2017). The Secretary of Defense was neither consulted during the drafting of the order nor given an opportunity to provide input. Evan Perez et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN (Jan. 30, 2017). Most State Department officials reportedly first heard of the Order through the media. Jonathan Allen & Brendan O’Brien, How Trump’s Abrupt Immigration Ban Sowed Confusion at Airports, Agencies, Reuters (Jan. 29, 2017). 56 Customs and border officials reported that their superiors could not provide clear guidance about the new policy. Shear & Nixon, supra note 55; see also Allen & O’Brien, supra note 54 (quoting CBP chief of passenger operations at John F. Kennedy International Airport declaring, “[w]e are as much in the dark as everybody else.”).

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 33 of 41 PageID #: 1501
25
involved with enforcing the law.57 Legal review by multiple agencies helps to identify potentially unforeseen legal implications of an order, determines the lawfulness of the proposed action, and analyzes whether the proposed language has established legal meaning that can be interpreted consistently with other laws and regulations governing the field. Here, the White House reportedly never asked the Department of Homeland Security for legal review in advance of the Order being promulgated, so “[t]he Department. . . was left making a legal analysis on the order after [President] Trump signed it.”58 Unsurprisingly, the resulting Order contains numerous ambiguities and inconsistencies that immediately caused confusion, forcing implementing agencies to improvise.59
On January 27, the Office of Legal Counsel issued a cursory memorandum that declared the Order “approved with respect to form and legality.”60 But the OLC memorandum conspicuously omits any legal analysis or discussion of either the Order’s impact on permanent U.S. residents or the constitutional provisions plainly implicated, i.e., the Due Process, Equal Protection, and Establishment and Free Exercise of Religion Clauses. Soon thereafter, the Acting Attorney General
57 See, e.g, Exec. Order No. 11,030, 27 Fed. Reg. 5,847 (Jun. 19, 1962). 58 Perez et al., supra note 54; Shear & Nixon, supra note 54. 59 Allen & O’Brien, supra note 54. 60 Memorandum from Curtis E. Gannon, Acting Assistant Att’y Gen. (Jan. 27, 2017).

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 34 of 41 PageID #: 1502
26
concluded that the Department of Justice would not defend the Order because she was not “convinced that the Executive Order is lawful.”61
The Department of Homeland Security initially construed the Executive
Order not to apply to people with lawful permanent residence. Overnight, the White House overruled the Department and instructed the agency to allow lawful
permanent residents entry only on a case-by-case basis. Five days later, the White House reversed itself and announced that the Order did not apply to either “green
card holders”62 or dual nationals.63 When courts in previous cases have deferred to the “considered judgment”
of the President, they did so on the basis of administrative records showing that the President’s decision rested on cleared views from expert agencies with broad experience on the matters presented to him. And as the Supreme Court has noted, “[departures from the normal procedural sequence also might afford evidence that
improper purposes are playing a role.”64
61 Memorandum from Sally Yates, Acting Att’y Gen., to the Dep’t of Justice (Jan. 30, 2017). 62 Memorandum from Donald F. McGahn II, Counsel to the President, to the Acting Sec’y of State, the Acting Att’y Gen., and the Sec’y of Homeland Sec. (Feb. 1,2017). 63 Geneva Sands et al., Officials Aim to Clarify Impact on Dual Nationals From Trump’s Immigration Executive Order, ABC News (Feb. 1, 2017). 64 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977).

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 35 of 41 PageID #: 1503
27
CONCLUSION Ours is a nation of immigrants, committed to the faith that we are all equal under the law and that we abhor discrimination, whether based on race, religion, sex, or national origin. As government officials, we sought diligently to protect our country, even while maintaining an immigration system free from intentional discrimination, a system that applies no religious tests and that measures individuals by their merits, not by stereotypes of countries or groups. Unjustified blanket bans of certain countries or classes of people are beneath the dignity of the nation and Constitution that we took oaths to protect. Although our nation was founded by immigrants fleeing religious persecution, the Order discriminates based on religion. Although our Constitution enshrines the principle that all are equal under the law, the Order discriminates on the basis of national origin. And although the United States accepted over four million refugees in the decades after World War II,65 the Order willfully ignores the greatest refugee crisis since that time. Allowing the Order to take effect would wreak havoc on our nation’s security and deeply held American values and threaten innocent lives. Blocking the Order while the underlying legal issues are being adjudicated would not
65 Carl J. Bon Tempo, Americans at the Gate: The United States and Refugees during the Cold War 1 (2008).

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 36 of 41 PageID #: 1504
28
jeopardize national security. It would simply preserve the status quo ante, still subjecting individuals to all the rigorous legal vetting processes that are currently in place.
For all of these reasons, the January 27, 2017 Executive Order does not further—but instead harms—sound U.S. national security and foreign policy.

Respectfully Submitted,

Harold Hongju Koh Hope Metcalf RULE OF LAW CLINIC Yale Law School 127 Wall Street, P.O. Box 208215 New Haven, CT 06520-8215 203-432-4932

Jonathan Freiman Tahlia Townsend WIGGIN AND DANA LLP 265 Church Street P.O. Box 1832 New Haven, CT 06508-1832 203-498-4584

Counselfor Amici Curiae*

* We are grateful to Phil Spector, Danieli Evans, Clare Ryan, and the student members of the Yale Law School Rule of Law Clinic—Benjamin Alter, Colleen Culbertson, Idriss Fofana, Alexandra Mahler-Haug, Abigail Olson, Aisha Saad, Mitzi Steiner, Aleksandr Sverdlik, Beatrice Walton, Emily Wanger, Zoe Weinberg, Tianyi Xin, and Nathaniel Zelinsky—for their contributions to this submission. Yale Law School’s Rule of Law Clinic is organized separately from the school’s Jerome N. Frank Legal Services Organization (“LSO”), one of the counsel for Petitioners. The views expressed by Yale Law School’s legal clinics are not necessarily those of the Yale Law School.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 37 of 41 PageID #: 1505
la
APPENDIX: LIST OF AMICI
1. Madeleine K. Albright served as Secretary of State from 1997 to 2001. A refugee and naturalized American citizen, she served as U.S. Permanent Representative to the United Nations from 1993 to 1997. She has also been a member of the Central Intelligence Agency External Advisory Board since 2009 and of the Defense Policy Board since 2011, in which capacities she has received assessments of threats facing the United States.
2. Jeremy Bash served as Chief of Staff at the U.S. Department of Defense from 2011 to 2013, and as Chief of Staff at the Central Intelligence Agency from 2009 to 2011.
3. Rand Beers served as Deputy Homeland Security Advisor to the President of the United States from 2014 to 2015.
4. Daniel Benjamin served as Ambassador-at-Large for Counterterrorism at the U.S. State Department from 2009 to 2012.
5. Antony Blinken served as Deputy Secretary of State from 2015 to January 20, 2017. He also served as Deputy National Security Advisor to the President of the United States from 2013 to 2015.
6. R. Nicholas Bums served as Under Secretary of State for Political Affairs from 2005 to 2008. He previously served as U.S. Ambassador to NATO and as U.S. Ambassador to Greece.
7. William J. Bums served as Deputy Secretary of State from 2011 to 2014. He previously served as Under Secretary of State for Political Affairs from 2008 to 2011, as U.S. Ambassador to Russia from 2005 to 2008, as Assistant Secretary of State for Near Eastern Affairs from 2001 to 2005, and as U.S. Ambassador to Jordan from 1998 to 2001.
8. James Clapper served as U.S. Director of National Intelligence from 2010 to January 20, 2017.
9. David S. Cohen served as Under Secretary of the Treasury for Terrorism and Financial Intelligence from 2011 to 2015 and as Deputy Director of the Central Intelligence Agency from 2015 to January 20, 2017.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 38 of 41 PageID #: 1506
2a
10. Ryan Crocker served as U.S. Ambassador to Afghanistan from 2011 to 2012, U.S. Ambassador to Iraq from 2007 to 2009, U.S. Ambassador to Pakistan from 2004 to 2007, U.S. Ambassador to Syria from 1998 to 2001, U.S. Ambassador to Kuwait from 1994 to 1997, and U.S. Ambassador to Lebanon from 1990 to 1993.
11. Daniel Feldman served as U.S. Special Representative for Afghanistan and Pakistan from 2014 to 2015, Deputy U.S. Special Representative for Afghanistan and Pakistan from 2009 to 2014, and previously Director for Multilateral and Humanitarian Affairs at the National Security Council.
12. Jonathan Finer served as Chief of Staff to the Secretary of State from 2015 until January 20, 2017, and Director of the Policy Planning Staff at the U.S. State Department from 2016 until January 20, 2017.
13. Robert S. Ford served as U.S. Ambassador to Syria from 2011 to 2014, as Deputy Ambassador to Iraq from 2009 to 2010, and as U.S. Ambassador to Algeria from 2006 to 2008.
14. Michele Flournoy served as Under Secretary of Defense for Policy from 2009 to 2013.
15. Avril D. Haines served as Deputy National Security Advisor to the President of the United States from 2015 to January 20, 2017. From 2013 to 2015, she served as Deputy Director of the Central Intelligence Agency.
16. General (ret.) Michael V. Hayden, USAF, served as Director of the Central Intelligence Agency from 2006 to 2009. From 1995 to 2005, he served as Director of the National Security Agency.
17. Christopher R. Hill served as Assistant Secretary of State for East Asian and Pacific Affairs from 2005 to 2009. He also served as U.S. Ambassador to Macedonia, Poland, the Republic of Korea, and Iraq.
18. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.
19. Marcel Lettre served as Under Secretary of Defense for Intelligence from 2015 to 2017.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 39 of 41 PageID #: 1507
3a
20. John E. McLaughlin served as Deputy Director of the Central Intelligence Agency from 2000 to 2004 and as Acting Director in 2004. His duties included briefing President-elect Bill Clinton and President George W. Bush.
21. Lisa O. Monaco served as Assistant to the President for Homeland Security and Counterterrorism and Deputy National Security Advisor from 2013 to January 20, 2017.
22. Michael J. Morell served as Acting Director of the Central Intelligence Agency in 2011 and from 2012 to 2013; as Deputy Director of the Central Intelligence Agency from 2010 to 2013; and as a career official from 1980 onward. His duties included briefing Presidents George W. Bush and Barack Obama.
23. Janet A. Napolitano served as Secretary of Homeland Security from 2009 to 2013.
24. James C. O’Brien served as Special Presidential Envoy for Hostage Affairs from 2015 to January 20, 2017. He served in the State Department from 1989 to 2001, including as Principal Deputy Director of Policy Planning and as Special Presidential Envoy for the Balkans.
25. Matthew G. Olsen served as Director of the National Counterterrorism Center from 2011 to 2014.
26. Leon E. Panetta served as Secretary of Defense from 2011 to 2013. From 2009 to 2011, he served as Director of the Central Intelligence Agency.
27. Samantha J. Power served as U.S. Permanent Representative to the United Nations from 2013 to January 20, 2017. From 2009 to 2013, she served as Senior Director for Multilateral and Human Rights on the National Security Council.
28. Susan E. Rice served as U.S. Permanent Representative to the United Nations from 2009 to 2013 and as National Security Advisor from 2013 to January 20, 2017.
29. Anne C. Richard served as Assistant Secretary of State for Population, Refugees and Migration from 2012 to January 20, 2017.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 40 of 41 PageID #: 1508
4a
30. Eric P. Schwartz served as Assistant Secretary of State for Population, Refugees and Migration from 2009 to 2011. From 1993 to 2001, he was responsible for refugee and humanitarian issues on the National Security Council, ultimately serving as Special Assistant to the President for National Security Affairs and Senior Director for Multilateral and Humanitarian Affairs.
31. Wendy R. Sherman served as Under Secretary of State for Political Affairs from 2011 to 2015.
32. Vikram Singh served as Deputy Special Representative for Afghanistan and Pakistan from 2010 to 2011 and as Deputy Assistant Secretary of Defense for Southeast Asia from 2012 to 2014.
33. James B. Steinberg served as Deputy National Security Adviser from 1996 to 2000 and as Deputy Secretary of State from 2009 to 2011.
34. Jake Sullivan served as National Security Adviser to the Vice President from 2013 to 2014. From 2011 to 2013, he served as Director of the Policy Planning Staff at the U.S. State Department.
35. Samuel M. Witten served as Principal Deputy Assistant Secretary of State for Population, Refugees, and Migration from 2007 to 2010. From 2001 to 2007, he served as Deputy Legal Adviser at the State Department.

Case 1:17-cv-00480-CBA Document 137 Filed 02/16/17 Page 41 of 41 PageID #: 1509
CERTIFICATE OF SERVICE
I, Jonathan Freiman, hereby certify that on February 16, 2017, the foregoing
document was filed and served through the CM/ECF system. Parties may access
the filings through the Court’s CM/ECF System.
/s/ Jonathan Freiman WIGGIN AND DANA LLP 265 Church Street P.O. Box 1832 New Haven, CT 06508-1832 (203) 498-4584

 </s> Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 1 of 40 PageID #: 1519

UNITED STATES DISTRICTCOURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al.,

Petitioners,
and
PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK ,
Intervenor-Plaintiff, v.
DONALD TRUMP, President of the United States, et al.,
Respondents.

Civil Action No. 1:17-cv-00480 (CBA)
(Amon, J.)

BRIEF OF ASSOCIATION OF AMERICAN UNIVERSITIES AS AMICUS CURIAE IN SUPPORT OF PETITIONERS' REQUESTED RELIEF

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 2 of 40 PageID #: 1520

TABLE OF CONTENTS Page

INTRODUCTION

1

I. The Free Exchange of Information, Ideas, and Scholars Across Borders Is Vital to

Americna Interests.

4

A. Universities and Their Communities Rely and Thrive on the Cross-Border

Exchange of Ideas and People.

4

B. Intenrational Students nad Scholars Bolster the Americna Economy and

Strengthen Our Democracy

8

II. The Executive Order Directly Threatens Academic Exchange with International

Students and Scholars.

16

A. Students and Scholars at AAU Member Universities Have Been Directly

Impacted by the EO.

18

B. The EO Will Have Continuing Adverse Effects on Open Academic

Exchange and, by Extension, Our National Interests.

23

CONCLUSION

29

1

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 3 of 40 PageID #: 1521
INTRODUCTION The Association of Americna Universities (AAU) is a non-profit organization, founded in 1900 to advance the intenrational standing of United States research universities. AAU's mission is to shape policy for higher education, science, and innovation; promote best practices in undergraduate and graduate education; and strengthen the contributions of research universities to society. Its members include 62 public and private research universities.1 Although 60 of AAU's member universities are located in the United States, each is part of a far greater worldwide network of leanring, research, and education. Together, AAU members enroll tens of thousands of students from all over the United States and the world in undergraduate, graduate, and professional degree programs. They also employ faculty and researchers from around the globe. These international scholars routinely publish pioneering peer-reviewed work in virtually all fields of knowledge. Many have gone on to invent groundbreaking technology, start thriving businesses, and assume leadership roles in governments and other organizations, both in this country and abroad. As the President and Provost of the University of Virginia, an AAU member, succinctly stated: Being a great university in the 21st century means being a global university, and our entire University community is enriched and enlightened by interacting with teachers and students from other nations. Providing these experiences is an investment in the future as we seek to build international cooperation and peace. Higher education leaders around the world continue to emulate America's colleges and universities because of the excellence we have achieved in teaching,
1 A complete list of AAU members is available at: http://www.aau.edu/about/default . aspx?id=16710.
On February 3, 2017, four AAU members—Boston University, Brandeis University, Harvard University, and Massachusetts Institute of Technology—filed a substantially similar amicus curiae brief that was joined by several non-AAU members in Louhghalam v. Trump, No. 1:17-cv-10154-NMG (D. Mass), ECF No. 68.
1

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 4 of 40 PageID #: 1522

research, and innovation, and an essential element of that excellence is our openness to people from other nations.2

Duirng the past three weeks, AAU members have seen their law-abiding students

stranded abroad, and their law-abiding faculty members prevented from travelling to and from

foreign countries. Scholars based abroad are pulling out of academic conferences in the United

States, either because they are directly affected by the travel ban or because they are concenred

about the EO's harmful impact on academic discourse and research worldwide. And potential

recruits have expressed serious doubts about attending or teaching at AAU schools. These

consequences directly threaten the ability of AAU's member universities to fulfill their

commitments to serving their students, their communities, the United States, and the world

through innovative teaching and research. That commitment relies on maintaining a consistent

pipeline of the most talented international students and scholars, who bring with them unique

skills and perspectives that inure to the beneift of their classmates, colleagues, and society. And

after receiving ifrst-class educations in the United States, the benefits then lfow in the opposite

direction, as those students and scholars take back to their countries the lessons and values they

leanred here.

AAU also is committed to the security of its members' campuses and of the United

States. Each member university places the highest priority on the safety of its students and

scholars, and recognizes that security is essential to maintaining a productive learning

environment. As AAU President Mary Sue Coleman has emphasized, AAU recognizes "the

importance of a strong visa process to our nation's security

That is why we have worked

2 Letter from Teresa Sullivan, President, and Tom Katsouleas, Executive Vice President and Provost, to the University of Virginia Community (Jan. 29, 2017), https://news.virginia.edu/ content/uva-president-provost-address-immigration-issues. Statements from leaders of other AAU members are available at: http://www.aau.edu/policy/article.aspx?id=18367.
2

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 5 of 40 PageID #: 1523
closely with previous administrations, especially in the wake of 9/11, to ensure our visa system prevents entry by those who wish to harm us, while maintaining the inflow of talent that has contributed so much to our nation. "3
At the same time, it is essential that we maintain our deep commitment to ensuirng the free flow of ideas and people that are critical to progress in a democratic society. The inquiry, innovation, and invention that take place every day within our members' classrooms, libraries, and laboratories depend on the ability of scholars and students to travel to and from the United States. Without that ability, academic achievement and the many economic and social benefits that such achievement generates are profoundly at risk.
For these reasons, AAU submits this brief to provide information to this Court about the serious effects of the January 27, 2017 Executive Order (EO), entitled "Protecting the Nation from Foreign Terrorist Entry into the United States," on the open academic exchange nad collaboration that are essential to AAU members. 4 Like many other academic institutions, AAU's members "have a mission of 'global engagement' and rely on . . . visiting students, scholars, and faculty to advance their educational goals." State of Washington v. Trump, No. 1735105, 2017 WL 526497, at *4 (9th Cir. Feb. 9, 2017). The EO undercuts that vital mission and impairs the cross-border exchange of ideas that is critical to our members' success as educational
3 Press Release, AAU, AAU Urges Quick End to Administration Order Barring Returning Students and Faculty (Statement by Association of Americna Universities President Mary Sue Coleman) (Jan. 28, 2017), http://www.aau.edu/news/article.aspx?id=18366.
4 Thi• s bri• ef focuses on effects of the EO. A broader range of concerns expressed by individual universities may be found at: David Comp, Running List of University/College and Higher Education Organization/Association Responses to President Trump's Executive Order Entitled "Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals" Issued Jan. 27, 2017, Int'l Higher Ed. Consulting Blog, http://ihecdjc.blogspot.com/2017/01/running-list-of-universitycollege-and.html (last visited Feb. 12, 2017).
3

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 6 of 40 PageID #: 1524
institutions and the ability of our members to contribute to the success of the country as a whole. I. The Free Exchange of Information, Ideas, and Scholars Across Borders Is Vital to
American Interests. A. Universities and Their Communities Rely and Thrive on the Cross-Border
Exchange of Ideas and People. Colleges and universities in the United States regularly sit atop the rankings of the world's ifnest institutions of higher education. 5 The consistent success of Americna institutions arises, in no small patr, from their ability to attract the very best students and faculty from the United States and from other countries. By attracting the sharpest minds to work together on the world's most challenging problems, American institutions are ideally equipped to improve the human condition through medical advances, scientific breakthroughs, new political and economic insights, innovative technologies, and the rich learning experiences that an internationally diverse group of students and teachers helps cultivate. As the attached Appendices revea1, 6 AAU member universities collectively educate and employ nearly 300,000 intenrational students and more than 82,000 faculty members from other countries. Indeed, in 2015, AAU universities hosted more than one-third of all intenrational students who studied in the United States. 7 Consider the following examples from schools in the South, North, East, and West: Rice University hosts 1,611 intenrational students and 883 international scholars. 8 The State University of New York (SUNY) at Buffalo enrolls 7,026
5 See World Univ. Rankings 2016-2017, Times Higher Educ., https://www.timeshigher education.com/world-university-rankings/2017/world-ranking# (last visited Feb. 12, 2017).
6 See Appendix A; Appendix B. 7 See AAU By The Numbers, http://www.aau.edu/AAU-Data-Page.aspx?id=16550. 8 Intl Students and Scholars at Rice, Rice Univ., Statistical Report, Executive Summary (2016), https ://ois s. rice. edu/uploadedFiles/About_OIS S/StatReport2016-Final.Public.pdf.
4

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 7 of 40 PageID #: 1525
international students and employs 923 international scholars. 9 More than 5,800 international students connect on University of Maryland, College Park's campus, and there interact with more than 1,300 intenrational scholars. 10 Purdue University hosts more thna 9,000 intenrational students from 127 countries and more than 900 intenrational faculty and staff from 63 countries. " And 11,513 intenrational students are enrolled in degree programs, and 3,512 intenrational scholars are engaged in teaching and research, at the University of Califonria, Los Angeles.12
The ability of AAU's member universities to attract these gitfed, accomplished, and motivated students and scholars depends on ensuring predictable travel to and from the United States. If the member universities and their peer institutions cannot assure their students, professors, and researchers that they can leave the country to visit their families, attend intenrational symposia or conferences, or engage in overseas field research without encountering undue impediments to their return, then these institutions will struggle to maintain the level of talent and experience that makes the United States the world leader in higher education and research and development.
9 Open Doors Data, International Students: Leading Institutions, 2015/16, Inst. of Intl Educ., http ://www. iie. org/Research-and-Publications/Open-Doors/Data/Intenrational- Students/ Leading-Institutions/2015-16 (last visited Feb. 15, 2017) (hereafter Open Doors Data, International Students: Leading Institutions); Appendix A.
10 Open Doors Data, Leading Institutions Hosting International Scholars, 2015/16, Inst. of Int'l Educ., http://www.iie.org/Research-and-Publications/Open-Doors/Data/IntenrationalScholars/Institutions-Hosting-the-Most-Scholars/2015-16 (last visited Feb. 15, 2017) (hereafter Open Doors Data, Leading Institutions Hosting International Scholars); Appendix A.
11 International Students and Scholars, Purdue University, https://www.iss.purdue.edu/ (last visited Feb. 15, 2017).
12 Open Doors Data, International Students: Leading Institutions; Open Doors Data, Leading Institutions Hosting International Scholars.
5

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 8 of 40 PageID #: 1526
The importance of maintaining international inclusion on our campuses cannot be overstated. Regular interactions with students and professors who come from different cultures and who have had vastly different life experiences promote both a richer understanding and a deeper appreciation of the world in which we live. Scholars hailing from different countries have confronted different social and political conditions and so cna identify different problems to solve—and can see different solutions to offer. Equally important, intenrational diversity challenges all of the members of an academic community to reevaluate their assumptions and to reconsider their beliefs and biases. As the President of one AAU university has explained, the member institutions are places of "rigor, ingenuity and real-world problem-solving where generations of bright young minds have come from every corner of the Eatrh to make something of themselves and work together to make a better world. "13
By way of example, the 21 Syrian students enrolled at UCLA this past semester were undoubtedly able to contribute to their peers' understanding of the wide-ranging consequences of the war in Syria in a way no textbook or lecture ever could. 14 Similarly, the Iranina students enrolled at the member institutions could offer a unique perspective on the strengths and weaknesses of the recent nuclear agreement nad other aspects of the United States' foreign policy that students could not absorb by simply reading op-eds in domestic newspapers.
To help foster meaningful interactions like these, thirty-five of AAU's member institutions are involved in Scholars at Risk (SAR), an intenrational network of higher-education institutions dedicated to promoting academic freedom and to protecting scholars from threats in
13 See Letter from L. Rafael Reif, President, MIT to Members of MIT Community (Nov. 9, 2017), http://president.mit.edu/speeches-writing/our-eyes-future.
14 See Appendix B. 6

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 9 of 40 PageID #: 1527
their home countries. 15 Since its founding in 1999, the SAR network processed applications
from over 3,400 scholars, and secured 900 positions of snactuary at universities and colleges in
the United States. During the past two fiscal years alone, 249 scholars from the seven countries
identiifed in the EO applied for SAR's assistance. SAR has arranged research and teaching
positions for 100 of these scholars representing 52 percent of all positions arrnaged during that
time—including 20 at universities and colleges in the United States. 16
Without question, the presence of intenrational scholars and students enriches the
experiences of all members of a university community. Indeed, the AAU member institutions
would find it extraordinarily dififcult to realize the ideals described in their respective mission
statements if students and scholars from countries around the globe could not predictably enter
and exit our country.
15 Membership Directory, Scholars at Risk Network, https://www.scholarsatrisk.org/ membership-directory/ (last visited Feb. 15, 2017); see also We Leave Our Guns at the Door: The Essential Role of Higher Education (Remarks by Robert Quinn, Executive Director), Scholars at Risk Network, Mar. 25, 2015, https://forumea.org/wp-content/uploads/2014/09/ RQuinn-Forum-on-Education-Abroad-26MAR2015.pdf (explaining that the international scholars who come to the United States through SAR not only obtain refuge from dangerous conditions in their home countries, but they also help expand thought and discourse on Americna campuses, exposing our "hidden biases," and holding up our most ifrmly held beliefs to the "kinds [of] cross-cultural quality-testing" that only a diverse intenrational community can foster).
16 Since the EO was issued, SAR has observed several negative impacts on scholars who are receiving SAR's shelter. For example, a SAR scholar and a prominent human rights activist from Syria was detained as a result of the EO and questioned for hours at Dulles Airpotr after returning from a conference abroad. If removed to Syria, he likely would face arrest and imprisonment. Like this scholar, other SAR participants frequently travel abroad to visit other universities as guest teachers or speakers, to attend conferences, and to conduct field research or other professional activities, as well as for personal reasons. They cna no longer predictably do so. In fact, a SAR scholar from Iran in the U.S. was hoping to present her research on women's rights and Islamic law at conferences in Europe, but she has been advised not to travel to those meetings. Similarly, an Iraqi SAR scholar researching jounralism in her home country has been advised not to travel abroad to conduct field study. Finally, those currently seeking SAR's assistance may be prohibited from entering the U.S. to accept positions at SAR member institutions. SAR is currently working to arrange positions for 26 such scholars from countries affected by the EO, and the SAR program expects this list to grow. Delay in arrnaging positions or entry permission poses a great risk to scholars' work and well-being.
7

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 10 of 40 PageID #: 1528
B. International Students and Scholars Bolster the American Economy and Strengthen Our Democracy.
The benefits of a free-lfowing exchange of scholars and ideas redound well beyond
Americna colleges and universities. The United States reaps tremendous profits—both tangible
and intangible—from its colleges' and universities' commitment to welcoming academics,
researchers, and innovators from around the world.
As a matter of pure economics, the inclusion of intenrational students and scholars at
schools like the AAU member institutions produces considerable returns for this country. A
recent "NAFSA: Association of Intenrational Educators" (NAFSA) study determined that the
more than 1 million intenrational students studying at Americna colleges and universities
"contributed $32.8 billion" to the U.S. economy during the 2015-2016 school year. 17 The same
study estimated that, in a single school year, intenrational students created or supported more
than 400,000 American jobs. NAFSA found that in New York alone, international students
contributed $3.9 billion to the State and supported nearly 47,000 jobs in 2015-2016. 18 And
duirng the same time frame, intenrational students and their families supported more than 7,000
jobs and contributed nearly $645 million to the local economy in the Eastern District of New
York. 19 Another study credits the steady stream of intenrational students into the United States
17 NAFSA International Student Economic Value Tool, NAFSA, http://www.nafsa.org/ Policy_and_Advocacy/Policy_Resources/Policy_Trends_and_Data/NAF SA_International Student_Economic_Value_Tool/ (last visited Feb. 15, 2017); see also Press Release, U.S_Dep't of State, Inst. of Intl Educ., IIE Releases Open Doors 2016 Data (Nov. 14, 2016), http://www. iie. org/Who-We-Are/News -and-Events/Press -Center/Pres s-Releases/2016/2016-11 -14-OpenDoors-Data#.WKC3xkOzXIU (citing a U.S. Department of Commerce study that estimates the financial contribution to be more like $36 billion).
18 NAFSA International Student Economic Value Tool, NAFSA, http://www.nafsa.org/ Policy_and_Advocacy/Policy_Resources/Polic_yTrends_and_Data/NAF SA_International _ Student_Economic_ValueT_ool/ (last visited Feb. 15, 2017).
19 Id. (aggregating NAFSA data for congressional districts that constitute the Eastenr District of New York).
8

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 11 of 40 PageID #: 1529
for increases in "transnational business creation" and "trade and direct investment between the
United States" and those students' countries of origin. 20
The U.S. economy has been further fueled by foreign-born innovators who came to this
country and chose to stay for extended periods of time. 21 Between 1995 and 2005, foreign-born
innovators founded . . . more than 25 percent of [engineering and technology] companies
nationwide. 22 Those companies, in turn, "produced $52 billion in sales and employed 450,000
workers. "23 In the same vein, according to one study by the National Foundation for American
Policy (NFAP), "[i]mmigrants have started more than half (44 of 87) of America's startup
companies valued at $1 billion or more and are key members of management or product
development teams in over 70 percent (62 of 87) of these companies." 24 The creation of new
companies generates obvious economic benefits for the United States, including considerable job
growth. Each $1 billion startup in the NFAP study has "created an average of approximately 760
jobs . . . in the United States. "25
20 Neil G. Ruiz, Brookings Inst., The Geography of Foreign Students in U.S. Higher Education: Origins and Destinations 2 (2014), https://www.brookings.edu/wp-content/uploads/ 20 1 4/0 8/Foreig_nStudents_F inal.pdf.
21 See, e.g., Adams Nager, et al., Info. Tech. & Innovation Found., The Demographics of Innovation in the United States 5 (2016), http://www2.itif.org/2016-demographics-of-innovation . pdf?_ga=1.256641800.2049822595.1486928220 (suggesting that more than one third of U.S. innovators were born outside of the country, and another 10 percent have at least one parent who was bonr abroad).
22 Mi• chael Greenstone, Adam Looney & Harrison Marks, The Hamilton Project, The U.S. Immigration System: Potential Beneifts of Reform 4-5 (2012), http://www.hamiltonproject. org/assets/legacy/ifles/downloads_andlinks/05immigration_greenstonelooney.pdf (hereafter Greenstone).
23 Id. at 5. 24 Stuart Anderson, Nat'l Found. for Am. Policy, Immigrants and Billion Dollar Startups 1 (2016), http://nfap. com/wp-content/uploads/20 1 6/03/Immigrants-and-Billion-Dollar-Startups. NFAP-Policy-Brief.March-20 1 6.pdf. 25 Id.
9

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 12 of 40 PageID #: 1530
Foreign-born students who study at American educational institutions and then begin working in science, technology, engineering, and mathematics ("STEM") fields have made particularly signiifcant contributions to the U.S. economy. In 2013, intenrational students accounted for nearly two-fifths (39 percent) of Ph.D. candidates in STEM subjects, and a recent study estimates that the percentage will climb above 50 percent by 2020. 26 When these students graduate, approximately 48 percent hope to stay in the United States to work. 27 Even with this steady inlfux of intenrational talent, the pipeline of STEM students in this country is not expected to be wide enough to keep up with the rapidly expanding number of STEM jobs available. 28
The recruitment of additional STEM students translates into far larger benefits for the country at large. An increase in the number of STEM workers in a metropolitan area is "strongly associated with higher patents per workers (an indicator of innovation), lower unemployment, a lower rate of job losses during . . . recession[s] . . . , higher exports as a share of gross domestic product (GDP) (a measure of international competitiveness), and higher incomes."29 The same goes for median household incomes and average wages, both of which tend to be higher "in
26 Xueying Han & Richard P. Appelbaum, Ewing Mairon Kauffman Found., Will They Stay or Will They Go?: International STEM Students Are Up for Grabs 3 (2016), http://www. kauffinan.org/—/media/kauffman_org/research%2Oreports%20and%20covers/20 1 6/stem_student s_final.pdf (hereafter Han & Appelbaum). If that growth is impeded, the U.S. will lose talent to other nations.
27 Han & Appelbaum, at 20. 28 Lylah Alphonse, New STEM Index Find's America 's STEM Talent Pool Still Too Shallow To Meet Demand, U.S. News & World Report (Apr. 23, 2014), http://www.usnews. com/news/stem-index/articles/20 1 4/04/23 /new- stem-index-ifnds -americas - stem-talent-pool- stilltoo-shallow-to-meet-demand. 29 Jonathan Rothwell, Brookings Inst., The Hidden STEM Economy 15 (2013), https:// www.brookings. edu/wp-content/uploads/20 1 6/06/TheHiddenSTEMEconomy6 1 0.pdf.
10

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 13 of 40 PageID #: 1531
STEM-oriented economies. "30 Consistent with these general trends, one study estimates that
"patent activity by high-skilled immigrants in the 1990s increased U.S. GDP per capita" by
between 1.4 and 2.4 percent—or $481 to $825 per person. 31
In addition to these economic benefits, the presence of intenrational students and scholars
on our AAU member institutions' campuses has been responsible for some of the most
significant STEM advances and accomplishments over the last few decades. To provide just a
few among a multitude of examples: Two mechanical engineers from India obtained
postdoctoral degrees from an AAU member institution and then went on to invent a system that
enables oil businesses to dispose of the waste generated by fracking in a cheaper and cleaner
manner. Their technology was named a "top 10 world-changing idea" in 2012. 32 Tim Benrers-
Lee, the English founder of the World Wide Web, reifned that technology at MIT, where he still
helps direct the W3 Consortium and run the Computer Science and Artificial Intelligence
Laboratory. 33 All six Americans to win a Nobel Prize in the sciences in 2016 were bonr abroad,
30 Id. at 16. 31 Greenstone, at 5. 32 Kevin Sullivan, Other Countries Court Skilled Immigrants Frustrated by U.S. Visa Laws, Wash. Post, Feb. 18, 2013, https://www.washingtonpost.com/national/other-countriescourt-skilled-immigrants-frustrated-by-us-visa-laws/20 1 3/02/1 8/73 d9f7ce-7 1 37-1 1 e2-ac3 63d8d9dcaa2e2_story.html?utm_tenn=.e0fdbf5fce8d (hereafter Sullivan). Additionally, 113 National Academy of Inventors ("NAI") Fellows currently at AAU member institutions were born in foreign countries. Fellowship nominees "must be a named inventor on patent(s) issued by the United States Patent and Trademark Office," and election to the fellowship is based on whether an inventor has "demonstrated a prolific spirit of innovation in creating or facilitating outstanding inventions that have made a tangible impact on quality of life, economic development, and the welfare of society." NAI Fellows, Nat'l Acad. of Inventors, http://www.academyoifnventors.org/fellows.asp (last visited Feb. 16, 2017). Five of these NAI Fellows are from Iran, one of the countries affected by the EO. 33 History of the Web World Wide Web Found. http://webfoundation.org/about/vision/ history-of-the-web/ (last visited Feb. 15, 2017); Tim Berners-Lee, CSAIL, https://www.csail.mit. edu/user/769 (last visited Feb. 15, 2017).
11

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 14 of 40 PageID #: 1532
but now work on AAU member campuses. 34 And one cna only imagine how different the
American technology landscape would be if Abdul Fattah Jandali Steve Jobs's biological
father—had not been permitted to enter the United States from his original home in Homs, Syria,
to study at the University of Wisconsin-Madison, an AAU institution. 35
The United States cna ill afford to lose these foreign-born innovators and entrepreneurs to
other countries. In a recent interview with an Americna newspaper, one of the aforementioned
Nobel laureates "credited American openness with bringing top scientists to the country. " 36 The
Americna scientific community will remain strong only, he said, "as long as we don't . . . turn
our back on immigration."37
Right now, there is a "global bidding war" for talented intenrational students, patricularly
in the STEM ifelds. 38 Foreign countries give substantial cash bonuses and other benefits to
international scholars to entice them to leave the United States. 39 And when the United States
has made it harder to get into the country, fewer students and scholars choose to attend our
34 Chris Isidore & Charles Riley, Harvard and MIT Professors Win Nobel Prize in Economics, CNN Money (Oct. 10, 2016), http://money. cnn.com/20 1 6/10/10/news/economy/ nobel-prize-economics/; Josh Fischman, Molecular Machine-Makers Grab the 2016 Nobel Prize in Chemistry, Scientific American (Oct. 5, 2016), https://www.scientificamerican.com/article/ molecular-machine-makers-grab-the-201 6-nobel-prize-in-chemistryl /; Dennis Overbye & Sewell Chan, 3 Who Studied Unusual States of Matter Win Nobel Prize in Physics, N.Y. Times (Oct. 4, 2016), https ://www.nytimes. com/20 1 6/1 0/05/science/nobel-prize-physics-topology.html ?r=0.
35 See Edward C. Baig, Steve Jobs' Biological Father Was Syrian Migrant, Some Note, USA Today (Nov. 17, 2015), http://www.usatoday.com/story/tech/columnist/baig/2015/11/16/ steve-j obs-biological-father- syrian-migrant- some -note/75 899450/.
36 Rafael Benral, Amid Debate, All 2016 American Nobel Laureates Are Immigrants, The Hill (Oct. 10, 2016), http://thehill.com/latino/3 0023 7-all-american-20 1 6-nobel-prize-honoreesare-immigrants.
37 Id. (intenral quotation marks omitted). 38 Sullivan, Other Countries Court Skilled Immigrants Frustrated by U.S. Visa Laws. 39 Id.
12

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 15 of 40 PageID #: 1533
universities. Atfer 9/11, for example, our institutions of higher learning saw significant drop-offs in their intenrational populations. 4° It makes little sense to chase away talented, law-abiding foreign students and scholars when so many other countries are willing to accept them.
Finally, the education of foreign-bonr students and the collaboration between Americna students and foreign-born scholars at AAU member institutions present the United States with an opportunity to promote the ideals that, together, make up the social, political, and cultural fabric of this country. Intenrational students and scholars who come to the United States to engage on our academic campuses are exposed to our democratic principles and our norms of tolerance nad respect. They witness American society's steadfast commitment to human rights, our emphasis on education, and our dedication to the rule of law.
These values, in turn, are transmitted around the world when these individuals depart this country. Juan Manuel Santos, the president of Colombia and the 2016 Nobel Peace Prize winner, holds degrees from two AAU members: the University of Kansas (bachelor's degree in economics and business administration) and Harvard University (master's degree in public administration). The University of Michigan counts the former prime ministers of Antigua, Egypt, Italy, and Peru among its alumni. In the last Indonesian administration alone, the Cabinet included three officials who attended AAU member institutions the defense minister (University of Califonria-Berkeley), the finance minister (University of Pennsylvania), and the trade minister (University of Califonria-Davis) plus two officials who attended other Americna universities. 41 The clear majority—if not all—of the AAU member institutions could boast a
40 NAFSA: Ass'n of Intl Educators, Restoring U.S. Competitiveness For International Students and Scholars (2006), http://www.nafsa.org/uploadedFiles/NAFSAH_ ome/Resource _ Library As sets/Public Policy/re storingu_. s .pdf.
41 The justice minister attended Americna University, and the energy minister attended the University of Colorado School of Mines. Ben Wolfgang, Armed with U.S. Education, Many
13

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 16 of 40 PageID #: 1534

comparable list of auspicious government ofifcials. These world leaders, along with countless

individuals, have come to the United States, engaged in the vigorous exchange of ideas for which

this country is known, and then returned to their countries steeped in American democratic

principles and culture. 42

*

*

*

*

The importance of a free exchange of scholars and ideas that transcends borders is

perhaps best expressed by two AAU university presidents both of whom are immigrants

themselves. One traveled west and the other traveled east, but both have made indelible

contributions to their chosen academic fields and the institutions that they now lead. NYU

President Andrew Hamilton, an organic and biologic chemist, was bonr in England but moved to

the United States several decades ago. Prior to becoming the president of NYU, Hamilton taught

at three other AAU member institutions (Yale University, University of Pittsburgh, and

Princeton University). 43 In a recent statement, Hamilton explained44:

As a scientist who studied and worked in four countries before becoming a citizen of the U.S., I know how important it is to be able to move across borders in peaceful pursuit of one's scholarship. I know, too, more than most given my

Leaders Take On World, Wash. Times (Aug. 19, 2012), http://www.washingtontimes.com/news/ 201 2/aug/1 9/armed-with-us-education-many-leaders-take-on-world/.
42 The importance of a free-flowing exchange of students, scholars, and ideas is relfected in longstanding federal law and policy. In 1961, the government established a special nonimmigrant visa program to encourage young leaders, entrepreneurs, research scholars, and professors to come to the United States and engage in "educational and cultural exchnage[]." U.S. Dep't of State, J-1 Visa Exchange Visitor Program, Common Questions, https:// j 1 visa.state.gov/basics/common-questions/ (last visited Feb. 2, 2017). This program, called the J-1 Visa Program, expressly instructs visitors who have completed the program to "return to their home country . . . to share their exchange experiences." Id.
43 Biography, NYU, https://www.nyu.edu/about/leadership-university-administration/ office-of-the-president/andrew-hamilton-biography.html (last visited Feb. 15, 2017).
44 Letter from Andrew Hamilton, President of NYU, to Members of the NYU Community (Jan. 30, 2017), http://www.nyu.edu/about/news-publications/news/2017/january/amessage-from-nyu-president-andrew-hamilton-about-the-recent-ex.html.
14

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 17 of 40 PageID #: 1535
background and my field, how much goodwill the U.S. eanrs for itself through the openness of its education system and how widely those who study here can spread Americna values.
Canregie Mellon University President Subra Suresh is an engineer who was born in India
but moved to the United States for his postgraduate studies. 45 Suresh attended three different
AAU member institutions (Iowa State University, MIT, and the University of California-
Berkeley), before joining the faculty at two other AAU member universities, Brown University
and MIT. 46 Suresh offered sentiments similar to President Hamilton's in a recent letter to his
academic community47•
The topic of immigration is very personal to me. As I relfected in my inaugural address at CMU in November 2013, I ifrst came to the U.S. at age 21 with a patrially filled suitcase, less than $1 00 in cash, and a one-way airplane ticket purchased with a lona. Once in the U.S., I was able to pursue a series of extraordinary opportunities for scholarship and service without regard for my national origin—an experience that forged in me an unshakeable faith in the ability of this nation to help everyone to succeed, wherever they came from. This trust in the system was reinforced even more strongly a few years ago when I was nominated by the President of the United States to lead the National Science Foundation and was unanimously confirmed by the United States Senate, without patrisan considerations and without regard to my national origin.
My own story is just one among millions that have shaped the history of this country. Immigration and intenrational collaboration are not footnotes in the story of higher leanring. Andrew Carnegie, CMU's founder nad such a central figure in America's industrial dominance duirng his time, was an immigrant Tens of thousands of foreign-bonr students, researchers, scholars, innovators and faculty members across the country, including many at CMU, do pioneering work at the cutting-edge of science, technology and artistic creativity. The point is clear: our very prosperity and security as a nation, and thus our freedom, depend in part on the people who come to this country from around the world.
45 Biography Carnegie Mellon University https://www.cmu.edu/leadership/presidentsuresh/bio/ (last visited Feb. 15, 2017).
46 Id. 47 Letter from Subra Suresh, President, Carnegie Mellon University, to Members of the Canregie Mellon University Community (Jan. 31, 2017), http://www.cmu.edu/leadership/ president-suresh/campus-comms/20 1 7/2017-01 -3 1 .html.
15

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 18 of 40 PageID #: 1536

These two leaders embody the impact that intenrational students and scholars can have on educational institutions like those in AAU. Their stories capture what our country stands to lose if we begin making it harder for people like them to come to the United States to leanr and to teach. II. The Executive Order Directly Threatens Academic Exchange with International
Students and Scholars. By "suspend[ing] entry into the United States, as immigrants and nonimmigrants," of persons from Iran, Iraq, Syria, Sudan, Yemen, Libya, and Somalia for at least 90 days, EO § 3(c), the EO prevents visa-holding students, faculty and researchers from participating in the open academic exchange that is so vital to modern higher education and our national interests. According to the Institute of International Education, 48 in 2015-2016, approximately 17,300 students and 2,300 professors or researchers in the United States came from one of the seven countries specified in the EO:

Iran Iraq Libya Somalia Sudan Syria Yemen Total

Number of Students
12,269 1,901 1,514
35 253 783 599 17,354

Number of Scholars 1,891 171 49 0 32 145 19 2,307

Total Students and Scholars
14,160 2,072 1,563
35 285 928 618 19,661

48 Elizabeth Redden, A Closing of America, Inside Higher Ed, Jan. 26, 2017, https://www. insidehighered. com/news/20 1 7/0 1 /26/draft-executive-order-would-call-banning-entryindividuals-some-countries.
16

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 19 of 40 PageID #: 1537
All 60 of AAU's United States members have students and scholars from these affected countries. Even more strikingly, as Appendix B demonstrates, a cross section of just over onethird of the AAU member institutions still totals more than 2,000 students from the seven affected countries. And as Appendix C shows, the 21 schools for whom AAU has data collectively count more than 500 scholars from the seven affected countries. For example:
Boston University: 97 students and 16 scholar4s9; Brandeis University: 12 students and 10 scholars; Canregie Mellon: 30 students and 2 scholars; Iowa State University: 115 students and 10 scholars; MIT: 47 students and 69 scholars; New York University: approximately 120 students and 10 scholars; Purdue University: 104 students and 12 scholars; The Ohio State University: 79 students and 15 scholars; The University of Califonria-Berkeley: 94 students and 16 scholars; • The University of Florida: approximately 200 students, faculty, and staff5°; The University of Kansas: 88 students and 6 scholars; The State University of New York (SUNY) at Buffalo: 122 students and 40 scholars; The University of Texas at Austin: a combined 110 students and scholars. 51
49 The data for Boston University, Brandeis University, and MIT is taken from: Louhghalam v. Trump, No. 1:17-cv-10154-NMG (D. Mass), ECF No. 68
50 Statement on Immigration Executive Order by W. Kent Fuchs, President, University of Florida, http://president.ulf.edu/updates/2017/01/statement-on-immigration-executive-order.html
51 Message from President Fenves on Recent Executive Order, http://president.utexas . edu/messages/recent-executive-order?utm_source=facebook&utm_medium=refen-al&utm _ campaign=UTAustinSocial.
17

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 20 of 40 PageID #: 1538
AAU members also host and employ many nationals of the seven specified countries,
including:
An activist and jounralist who helped galvanize Yemeni support for the Arab Spring and has been appointed a visiting lecturer on public policy;
A Syrina trauma surgeon who was instrumental in coordinating NGO support for medical care to casualties of the civil war and is now assessing the relative availability and quality of trauma care at Syrian hospitals;
An Iranina professor who previously worked at a leading Europena architectural firm, taught throughout Europe, and received numerous awards and appointments for her contributions to the field;
A Sudanese medical professor (and practicing physician at a local hospital) who has received awards and public acclaim for her work on female genital cutting;
A Syrina professor and recipient of a MacArthur "Genius" grant who has, among other things, founded a company that develops systems to monitor vital signs to detect the onset of illness in the elderly;
An Iranina medical professor who has developed novel methods for studying the longtenn risks of myocardial infarction and stroke following blood infection;
A Syrian neuroscientist who researches the neurobiology of pain, anxiety, depression, and substance abuse, is co-director of a respected institute on molecular and behavioral neuroscience, and has been elected to the National Academy of Science; nad
An Iranina mathematician who was the ifrst woman to win the Fields Prize, the most prestigious prize in mathematics. Talented students and scholars like these have felt the EO's negative effects during the past three
weeks.
A. Students and Scholars at AAU Member Universities Have Been Directly Impacted by the EO.
From the moment the EO was signed, hundreds of students and scholars at AAU
universities were either locked out of or locked into the United States. Many members of our
academic communities who were outside of the United States at the time the EO was signed
were barred from returning to the United States to continue their studies and work. These
18

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 21 of 40 PageID #: 1539
include undergraduates who were simply trying to return to campus after spending their winter breaks with their families. 52
They also include graduate students who hoped to continue their advanced study and research at AAU member institutions. For instance, an Iranian Ph.D. student in Applied Mathematics and Statistics recently accepted a Postdoctoral Scholar appointment from the University of Chicago, but after consulting with the United States Embassy, he was told that the EO barred his entry. This student has declined offers from universities in Canada and the United Kingdom, and it is too late for him to continue his studies in those countries. In another case, a research scientist at Brandeis University who holds a Ph.D. in theoretical physics received a fellowship from the New England Complex Systems Institute to study the behavior of complex social networks. That scholar had planned to arrive shortly atfer the EO issued, but was forced to temporarily remain in Iran because of the EO. Similarly, Canregie Mellon University has an Iranian Ph.D. student who is studying for his dual degree at a partner institution outside of the United States; if the EO remains in place, he will be unable to return to Pittsburgh for his qualifying exams and to complete his degree. In a fourth case, an Iranian Ph.D. student was scheduled to arrive for classes at the University of Califonria-Davis in March, but his ability to return is now in doubt. And another Iranian researcher with a joint appointment at Harvard
52 See, e.g., Stephanie Ebbert, MIT Engineering Student From Iran Not Allowed To Reenter US, Boston Globe (Jan. 31, 2017), http://www.bostonglobe.com/metro/2017/01/31/mitengineering-student-from-iran-barred-entry-into/fQBJ7kLIhY7P79YNKVKtTN/story.html; Anya Kamenetz, Students Stranded Worldwide By Trump Order, NPR (Jan. 30, 2017), http:// www.npr. org/sections/ed/2017/01/30/512431112/students -stranded-worldwide-by-trump-order.
19

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 22 of 40 PageID #: 1540
Medical School and Brigham & Women's Hospital was unable to board a flight from Zurich to Logan Airpotr, and was forced to file a lawsuit to gain entry to start her work. 53
In some cases, these students and scholars eventually were able to enter the United States following court-ordered injunctions in other judicial districts. 54 But if that relief is litfed, many others like them will be stranded abroad.
Just as many individuals have been kept out of the United States in the wake of the EO, others are effectively locked in. Those scholars and students from the seven countries covered by the EO who were lucky enough to be in the United States when it was issued can no longer conifdently travel outside the United States and expect reentry. This means that despite having valid visas, faculty members from these seven countries cannot visit families abroad, attend intenrational academic conferences, give lectures to colleagues at sister universities, or conduct ifeld research in foreign nations.
For example, a professor at an AAU member institution previously taught at universities around the world and has maintained close ties with her foreign academic colleagues, who are important to her creativity and work. The EO struck a sudden, signiifcant blow to these connections, casting in doubt the professor's ability to present as scheduled at upcoming conferences overseas, because her return to the United States is not guaranteed. She is also concerned about traveling abroad to visit and care for her mother, who is terminally ill, while the EO remains in place. Other professors have faced similar obstacles since the EO was issued.
53 See Milton J. Valencia, Boston-Bound Iranian Scientist with Visa Sues US over Ban, Boston Globe (Feb. 2, 2017), https://www.bostonglobe.com/metro/2017/02/01/iranian-scientistwith-visa-and-bound-for-boston-sues-over-ban/vOrRMIatsOfTTzY0sr8EvIlstory.html.
54 See, e.g., Sidney Lee, Iranian Student Finally Returns, CNHI News Oklahoma, Feb. 6, 2017, http ://www. chickashanews . com/oklahoma/news/iranian-student-ifnally-returns/article_b 1 7 03e5a-71fd-511c-a30b-9e2c7394c081.html.
20

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 23 of 40 PageID #: 1541
Equally to the point, students cannot pursue their own research in foreign libraries and
laboratories, participate in study-abroad programs, or attend satellite campuses in other
countries. 55 Nor can they travel home for personal reasons, whether to celebrate a family
member's marriage or to mounr a loved one's death at a funeral. For example, a Ph.D. student at
55 AAU members have invested significant resources in study-abroad programs, foreign satellite campuses, and global experiential leanring opportunities. For example, New York University has global campuses in places like Abu Dhabi, Tel Aviv, and Shanghai; each year, more than 3,000 NYU undergraduate students choose to study abroad at one of these locations. See Studying Abroad, New York University, http://www.nyu.edu/academics/studying-abroad. html. Similarly, the University of California-Berkeley is building a "Berkeley Global Campus (BGC)," which will serve as an "intenrational hub in which an exclusive group of some of the world's leading universities and high-tech companies will work side-by-side in a campus setting." Nicholas B. Dirks, Leading a Global Transformation of the American Research University, Huffington Post, Mar. 23, 2015, http://www.huffingtonpost.com/nicholas-bdirks/leading-a-global-transfor_b_6517758.html . "Along with its research mission, the BGC will have a strong educational component, centered on a Global College for Advanced Study that offers both undergraduate and graduate-level academic programs for U.S. and intenrational students. The Global College will be a living laboratory designed to support interdisciplinary intenrational and public and private solutions for key 21 st-century challenges in fields such as energy, computing, robotics, the environment, public health, and the global economy." Id. In connection with this new campus, Berkeley will be offering expanded study-abroad programs for its undergraduates, including new opportunities "to study at the overseas campus of a BGCaffiliated university, followed by completion of research-intensive studies at that university's site at the BGC." Id. MIT's Sloan Management School allows students to enroll in "Action Leanring Labs," where they are assigned to real-world company partners and work on projects for those companies, often on-site, duirng an academic term. The school offers Labs in China, India, and Israel, as well as a Global Entrepreneurship Lab, in which students are sent to emerging markets across the globe, "from Argentina to Zambia. " Action Learning, MIT-Slona, http://mitsloan.mit. edu/actionleanring/labs/g-lab-info-for-hosts.php/ (last visited Feb. 13, 2017). Finally, the Human Rights Program at Harvard Law School works to protect the rights of clients and communities around the world through a variety of intenrational projects. See Human Rights@Harvard Law, http://hip.law.harvard.edu/ (last visited Feb. 13, 2017). The Program's clinical projects regularly involve work in several of the countries identiifed in the EO. For example, in the past five years, the Clinic has undertaken work related to the threat posed to civilinas in Libya by abandoned weapons. More recently, one clinical project has been engaging with the challenges that Syrian refugees living outside refugee camps encounter when attempting to obtain official documents from the govenrment of Jordan. Over the past year, another ongoing clinical initiative focused on climate change displacement and included a case study on Somalia.
By placing undue restrictions on the free flow of students and scholars, the EO imperils the success of innovative intenrational programs like these and the many others at AAU member universities.
21

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 24 of 40 PageID #: 1542
Boston University was scheduled to travel home to conduct interviews and research that are critical to his dissertation. He has now cancelled his trip due to the EO and the uncertainty of being able to return to the U.S. He is working with his dissertation advisor to evaluate how to formulate a new dissertation topic, which will signiifcantly delay the completion of his Ph.D. In addition, two Iranina graduate students who are studying global health at an AAU member institution may not be able to complete field research and training because of the EO's travel bna. And one Harvard graduate student recently published an eloquent editorial in the New York Times worth reading in its entirety—describing his fears about leaving the country and his sorrow about the effects that the EO will have on "thousands who, unlike me, might never get to experience America at its best. "56 These examples demonstrate the severe effects of the EO on universities across the country.
Fruitful academic exchange does not occur only abroad. It also takes place within the United States. Foreign scholars frequently travel to AAU universities for conferences and to collaborate with academic and research colleagues. For example, the EO has impacted the Columbia Law School Human Rights Clinic's efforts to research the mental-health effects associated with the violent conlfict in Yemen. The Clinic had been organizing an interdisciplinary workshop to be held in New York, which would have brought together leading researchers from Yemen, the United States, and other countries to design a new study to
56 Zi• ad Reslna, Harvard Student: 7 Worry If I Leave, I Won't Be Let Back In', N.Y. Times (Feb. 2, 2017), https://kristablogs.nytimes.com/2017/02/02/harvard-student-i-worry-if-ileave-i-wont-be-let-back-in/?r=2.
22

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 25 of 40 PageID #: 1543
investigate and improve mental health in Yemen. Because of the EO, the Clinic has taken steps to move the workshop to Canada. 57
The EO also burdens foreign academics who wish to come to the United States to foster collaborative study. More than 43,000 Americna scholars including 62 Nobel Laureates; 146 recipients of prestigious awards like the Fields Medal, Pulitzer Prize, and MacArthur Fellowship; and 521 Members of the National Academies of Sciences, Engineering, and Arts—explained in an online petition that the "EO limits collaborations with researchers from these nations by restricting entry of these researchers to the US and cna potentially lead to departure of many talented individuals who are current and future researchers and entrepreneurs in the US. " 58 The loss of this talent to AAU member institutions and the nation would be incalculable. These accomplished scholars therefore conclude: "We strongly believe the immediate and long term consequences of this EO do not serve our national interests. "59
B. The EO Will Have Continuing Adverse Effects on Open Academic Exchange and, by Extension, Our National Interests.
In addition to the direct effects on existing students and scholars, the EO promises to have deleterious effects on critical academic exchange. Shortly after the EO was enacted, for example, more than 3,000 international scholars signed a petition to "boycott intenrational academic conferences held in the United States in solidarity with those affected by" the E0. 6°
57 Collin Binkley, Travel Ban Throws Research, Academic Exchange into Turmoil, Associated Press (Jan. 31, 2017), http://abcnews.go.com/Technology/wireStory/travel-bnathrows-research-academic-exchange-tunnoil-45 1 6941 8.
58 Academics Against Immigration Executive Order, https://notoimmigrationbna.com/ (last visited Feb. 12, 2017) (hereafter Academics Against Immigration Executive Order).
59 Id. 6° Elizabeth Redden, Boycotting the U.S., Inside Higher Ed (Jan. 31, 2017), https://www. insidehighered. com/news/20 1 7/0 1 /3 1 /protest-trump-entry-ban-some-scholars -are-boycotting-us based-conferences.
23

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 26 of 40 PageID #: 1544
This proposed boycott was not a hollow threat. For example, the Intenrational Studies Association, one of the oldest interdisciplinary associations dedicated to understanding intenrational, transnational, and global affairs, is scheduled to host its annual conference in late February in Baltimore. However, many foreign participants pulled out of this conference as part of the international boycott, and the Association was forced to announce that it "will refund registration fees and waive any penalties for those who are unable to attend the annual meeting or choose not to attend as a result of the U.S. Executive Order on Immigration." 61 Although many AAU member institutions have opposed the boycott as counterproductive, its influence is incontrovertible. The scholars who have refused to attend U.S. conferences have already had a powerful impact and undoubtedly will continue to do so for as long as the boycott remains in effect.
Foreign institutions also have started cancelling their own conferences in response to the EO. For example, a conference sponsored by the Association for the Study of Persianate Societies was scheduled to take place in Shiraz, Iran, in March, but it could not proceed due to the travel dififculties posed by the EO and the related uncertainty around who (if anyone) would be able to attend. 62 Many American professors had planned to patricipate in the conference to
61 Update on Remote Participation and Travel Concerns for Baltimore, Intl Studies Ass'n (Feb. 6, 2017), http://www.isanet.org/News/ID/5416/Update-on-Remote-Participationand-Travel-Concerns-for-Baltimore; see Redden, Boycotting the U.S.
62 Letter from Ghazzal Dabiri, 2017 Conference Chair, Ass'n for the Study of Persianate Societies to Friends and Colleagues, http://www.persianatesocieties.org/index.php/conventions/ asps-biennial-convention-shiraz-2017 ("As many of you are aware, in a measure-for-measure response to President Trump's executive order of Friday, January 27, 2017, the Government of Iran announced on Saturday, January 28, that it would no longer issue any visas to Americna citizens for an initial period of 90 days and beyond it as long as the US bna remains in effect As the Americna scholars constitute the bulk of non-Iranina attendees at the Convention, we are forced to cancel it at this late stage.").
24

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 27 of 40 PageID #: 1545
consult with academic colleagues in that unique ifeld of study. They now will be unable to do
so.
It is difficult to overstate the importance of conferences, colloquia, and symposia to scholarly communication. They enable intellectual give-and-take and real-time digestion and discussion of research. Conferences also allow for in-person encounters and discussions that give rise to important future collaborations. This kind of face-to-face collaboration is patricularly important to scientific research. As Rush Holt, the CEO of the Americna Association for the Advancement of Science, has stated: "Freedom of communication is absolutely essential for science to function It's not just nice for people to attend conferences and communicate in person, it's part of the practice of science. And being able to have scientists from diverse backgrounds and viewpoints, that's essential to the practice of good science. "63 The prospect of barred entry, and of retaliation and boycotts, means lost opportunities for the expnasion of knowledge and scientific discovery. And Americna universities risk being removed from the epicenter of where cutting-edge ideas are discussed. The EO puts all of these benefits in jeopardy.
The EO also will impair AAU member institutions' ability to recruit foreign faculty and scholars. Collectively, AAU member universities already employ dozens of faculty members from the seven nations currently covered in the EO. But the aforementioned petitioning scholars offer a powerful reason why foreign academics may be unwilling to teach at an Americna university in the future:
63 Chelsea Whyte, Trump's Travel Ban Is Already Stopping Scientific Collaboration, New Scientist (Jan. 31, 2017), https://www.newscientist.com/article/2119910-trumps-travel-bnais-already-stopping-scientiifc-collaboration/.
25

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 28 of 40 PageID #: 1546
The implementation of this EO will necessarily tear families apart by restricting entry for family members who live outside of the US and limiting the ability to travel for those who reside and work in the US. 64 Given those working conditions, many scholars will choose not to teach in this country. One AAU member's current recruit to ifll a full-time faculty position has disclosed that he is married to a national from one of the seven countries covered in the EO; that recruit has expressed concenrs about accepting a position in light of the EO. Another member university identified an Iranian scholar as the best candidate for an Assistant Professor position, but it is uncertain whether that scholar will be permitted to enter the country and work here. The suspension of visa processing under the EO may have further ifnancial implications for our scholars through the disruption of research funding and the loss of job opportunities if they are unable to obtain or extend work authorizations. Universities across the country will lose highly competitive candidates from the affected countries to institutions outside of the United States if the EO remains in effect. In addition, the EO will prevent AAU member universities from attracting and educating the best and brightest foreign students. For example, while the regular admissions process is still underway at MIT, at least two prospective students from the identified countries have already been admitted for the fall via early action. One, an 18-year-old from Damascus, was reported on in the media. 65 After dreaming for years of eanring an engineering degree from MIT, the student was recently accepted for the class of 2021. But when the EO was signed, his ability to attend MIT became uncertain. As he puts it: "'My dreams are basically ruined. '" 66 Regrettably, this
64 See Academics Against Immigration Executive Order. 65 See Justin Lear, A Syrian Teen Was Headed to MIT and Then Came the Ban, CNN (Jan. 29, 2017), http ://www. cnn. com/20 1 7/0 1 /29/us/mit-syria-student-ban-trnd/. 66 id.
26

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 29 of 40 PageID #: 1547
young man is not the only talented applicant whose dreams may be dashed. A top candidate for the University of Rochester's Eastman Institute of Oral Health's ("EIOH") Advanced Education for General Dentistry program recently turned down an offer of admission, explaining that the EO made it dififcult to justify uprooting his family at this time. Decisions like these will adversely affect not only the University of Rochester, but also the wider community. EIOH is one of New York State's largest providers of oral health care for Medicaid recipients and the uninsured, and this loss will impact care for vulnerable patient populations. Uncertainty about the number of students who will actually accept offers of admission, moreover, throws a wrench into the carefully calibrated admissions decisions that are currently taking place at AAU member institutions across the country.
In addition to concenrs about a drop in the number of intenrational students who are able to matriculate at AAU member institutions, the schools also justifiably fear a decline in the number of applications they will receive. A recent atricle reported that university administrators are already seeing a precipitous and unprecedented drop in the number of applications to graduate programs in engineering. 67 That article explains that "[u]niversity administrators worry that the declines, as much as 30% from 2016 levels in some programs, reflect heightened fears among foreign-bonr students that the United States is tightening its borders. "68 It would not be surprising if other courses of study at both the undergraduate and graduate levels experience similar declines.
Finally, the sheer uncertainty of the current situation likely will deter students, scholars, and faculty from countries not currently covered by the EO from travelling to and from the
67 Jeffrey Mervis, Drop in Foreign Applicants Worries U.S. Engineering Schools, Science (Feb. 14, 2017), http://www.sciencemag.org/news/2017/02/drop-foreign-applicantswotries-us-engineering-schools.
68 id.
27

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 30 of 40 PageID #: 1548
United States for academic purposes. To take just one example, the University of Rochester's Division of Solid Organ Transplantation recently hired a Saudi Arabina hepatologist who is now concenred about his future here. What is more, the Division's Chief of Solid Organ Transplantation, a Mexicna national, is a world-renowned liver-transplant surgeon. He has recruited an international team to join him (including the doctor from Saudi Arabia). In the six months that he has been at the University of Rochester, the surgeon has doubled the number of liver transplants performed at the university's medical center. His work is especially important, as New York State has a severe liver shortage. The EO puts that work—and this surgeon's ability to attract the talented foreign doctors who assist him in it in severe jeopardy, even though he and his colleagues do not hail from the seven countries listed in the EO. In fact, he has standing invitations to give talks at conferences in Canada, Argentina, Germany, and the Czech Republic in the coming months, but he has put them on hold out of fear that the ban will be expanded or that he will face increased scrutiny returning to the country.
These fears are understandable. Although there are reportedly no plans in place to add to the list of restricted countries, the EO provides for this possibility, and high-ranking Executive Branch officials have suggested that an expansion may well occur in the future. 69 Given this volatility, individuals from a wide range of nations may fear—quite reasonably—that their country might be the next addition to the list. Foreign scholars and students may not be willing to risk being stranded here or abroad, even if they must instead change plans and go elsewhere to gain an education, engage young minds, conduct research, or perform vital medical services at teaching hospitals. AAU thus supports any legal measure that will mitigate that risk, provide
69 See Face the Nation Transcript Jan. 29 2017 http://www.cbsnews.cominews/face-thenation-transcript-january-29-2017-priebus-mccain-ellison/ ("Now, you can point to other countries that have similar problems, like Pakistan and others. Perhaps we need to take it further.").
28

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 31 of 40 PageID #: 1549

much-needed clarity in these uncertain times, and restore conifdence to those who travel to and from American research universities every day.
CONCLUSION AAU member universities are on the leading edge of innovation, scholarship, and solutions that contribute to the nation's economy, security, and well-being. AAU has submitted this brief to demonstrate the serious effects the EO has had on American universities in the weeks since it was issued. In light of those effects and for the foregoing reasons, AAU respectfully submits that Petitioners' requested relief should be granted.

February 16, 2017

Respectfully submitted,
COUNSEL FOR AMICUS CURIAE ASSOCIATION OF AMERICAN UNIVERSITIES
/s/ Daniel H. Tabak Daniel H. Tabak (DT-9842) Oliver S. Haker (OH-6343) Cohen & Gresser LLP 800 Third Avenue New York, NY 10022 Tel: (212) 957-7600 Fax: (212) 957-4514 dtabak@cohengresser.com ohaker@cohengresser.com
Brad D. Brina (Califonria Bar #79001) Pro Hac Vice pending
Michael R. Doyen (Califonria Bar #119687) Pro Hac Vice pending
Munger, Tolles & Olson LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071 Tel: (213) 683-9100 Fax: (213) 687-3702 Brad.Brian@mto.com Michael.Doyen@mto.com

29

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 32 of 40 PageID #: 1550 Chad Golder (New York Bar #4381356) Pro Hac Vice pending Sarah G. Boyce (DC Bar #1035243) Pro Hac Vice pending Munger, Tolles & Olson LLP 1155 F. St., NW, 7th Floor Washington, DC 20004 Tel: (202) 220-1100 Fax: (202) 0220-2300 Chad.Golder@mto.com Sarah.Boyce@mto.com
30

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 33 of 40 PageID #: 1551
PPENDIX

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 34 of 40 PageID #: 1552

International Students and Scholars at AAU Institutions *I1

Institution
Boston University Brandeis University Brown University Califonria Institute of Technology Canregie Mellon University Case Westenr Reserve University Columbia University Conrell University Duke University and Medical Center Emory University Georgia Institute of Technology Harvard University Indiana University - Bloomington Iowa State University Massachusetts Institute of Technology Michigan State University New York University Northwestern University Princeton University Purdue University - West Lafayette Rice University Rutgers University - New Brunswick Stanford University SUNY Stony Brook University University at Buffalo -
The State University of New York Texas A&M University - College Station The Johns Hopkins University The Ohio State University The Pennsylvania State University The University of Arizona The University of Chicago The University of Iowa The University of Kansas The University of Texas - Austin The University of Wisconsin - Madison

Total International
Students 8,455 1,676 1,842 828 7,051 2,447 12,740 6,008 3,747 2,783 5,979 5,679 7,159 4,636 4,575 8,256 15,543 5,062 2,034 10,563 1,956 6,040 5,107 5,609

Total International
Scholars 1,361
173
3,082 1,145 1,777 1,035 1,064 4,951
552 621 2,408 1,137 1,257 1,431 1,114 1,323 883 1,127 3,512

7,026 6,940 5,058 7,117 8,084 4,956 3,869 4,540 2,592 6,069 6,440

923
2,625 1,834 1,350 1,751 1,302
474 290 1,620 1,840

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 35 of 40 PageID #: 1553

Tulane University University of Califonria - Berkeley University of Califonria - Davis University of Califonria - Irvine University of Califonria - Los Angeles University of Califonria - San Diego University of California - Santa Barbara University of Colorado Boulder University of Florida University of Illinois at Urbana-Champaign University of Maryland - College Park University of Michigan - Ann Arbor University of Minnesota - Twin Cities University of Missouri - Columbia University of North Carolina - Chapel Hill University of Oregon University of Pennsylvania University of Pittsburgh - Pittsburgh University of Rochester University of Southenr Califonria University of Virginia University of Washington Vanderbilt University Washington University in St. Louis Yale University Total for AAU Institutions

1,531 7,313 5,381 5,647 11,513 7,556 2,557 2,951 6,751 12,085 5,802 7,630 7,037 2,990 2,025 4,139 6,221 3,946 3,432 13,340 2,573 8,259 1,561 3,047 3,089 283,286

3,399 2,202 1,256 3,512 2,853
567
1,527 2,083 1,309 3,155 1,844
938 1,372
1,796 1,768
1,629
1,208 2,565 82,121

*Most of the data in this chart was drawn from the 2016 Open Doors Report on Intenrational Educational Exchange. The report is available at: http://www.iie.org/Research-andPublications/Open-Doors/Datatt.WKSIBO3rtD _
t For institutions with fewer than 1,000 international scholars, data was either provided by the institution directly to AAU or is publicly available on the institution's website. The data reported is for the most recent year available that complies with the Institute of Intenrational Education's definition of international students nad scholars.
1 Blanks in this chart relfect unavailable data, not the number zero. The total number of international students and scholars at AAU member institutions is therefore almost certainly higher than the total relfected in this chatr.

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 36 of 40 PageID #: 1554
PPENDIX B

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 37 of 40 PageID #: 1555

Students from the Countries Affected by the Executive Order *t

Iran

Iraq

Libya Somalia Sudan Syria

Carnegie Mellon University Cornell University

29

1

0

0

0

0

57

1

0

0

2

4

Georgia Institute of Technology Harvard University Iowa State University Northwestern University

139

24

2

0

1

1

8

101

5

7

0

0

1

45

0

0

0

0

2

Purdue University - West Lafayette

94

0

3

0

0

5

Rice University

32

0

0

0

0

0

Texas A&M University - College Station

174

38

4

0

2

1

The Ohio State University

62

1

16

0

0

0

The University of Chicago

23

0

0

0

0

2

The University of Kansas

52

30

4

0

0

1

University at Buffalo (SUNY)

110

2

0

0

1

7

University of California - Berkeley

85

1

0

2

3

3

University of California - Davis

98

22

3

0

1

3

University of California - Irvine

120

1

0

0

2

4

University of California - Los Angeles

189

12

0

0

2

21

University of California - San Diego

76

2

1

0

1

1

University of California - Santa Barbara

62

4

0

0

0

5

University of Maryland - College Park

165

8

0

0

1

6

University of Minnesota - Twin Cities

89

University of Missouri - Columbia

51

79

9

0

0

1

Yale University

14

1

0

1

1

1

Yemen 0 0
1 1 1 2 0 0 0 0 1 2 0 3 0 2 0 0 0
1 0

Total 30 64 149 37 115 48 104 32
219 79 25 88 122 94 130 127 226 81 71 180
141 18

* The data in this chart was gathered through a survey that AAU circulated to all of the AAU member institutions and/or from websites maintained by AAU member institutions.
t Blanks in this chart reflect unavailable data, not the number zero.

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 38 of 40 PageID #: 1556
PPENDIX C

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 39 of 40 PageID #: 1557

Scholars from the Countries Affected by the Executive Order *t

Iran

Iraq

Libya Somalia Sudan Syria

Carnegie Mellon University Cornell University

2

0

0

0

0

0

20

0

1

0

0

2

Georgia Institute of Technology Harvard University Iowa State University Northwestern University Purdue University - West Lafayette The Ohio State University The University of Chicago The University of Kansas University at Buffalo (SUNY) University of California - Berkeley

36

62

0

0

0

1

3

8

1

0

0

0

1

22

0

0

0

0

0

12

0

0

0

0

0

15

0

0

0

0

0

2

0

0

0

0

1

4

0

0

0

1

0

38

0

1

1

0

0

15

1

0

0

0

0

University of California - Davis University of California - Irvine University of California - Los Angeles University of California - San Diego

23

0

0

0

0

0

4

0

0

0

0

1

14

0

0

0

0

1

25

0

0

0

0

0

University of California - Santa Barbara

9

0

0

0

0

0

University of Maryland - College Park

160

6

0

0

1

0

University of Minnesota - Twin Cities

23

0

University of Missouri - Columbia

9

5

0

0

0

1

Yale University

18

0

0

0

0

0

Yemen 0 0
1 0 0 0 0 0 1 0 0 0 0 0 0 0 2 0 0 0

Total 2 23 38 67 10 22 12 15 3 6
40 16 23 5 15 25 9 169
15 18

* The data in this chart was gathered through a survey that AAU circulated to all of the AAU member institutions and/or from websites maintained by AAU member institutions.
t Blanks in this chart reflect unavailable data, not the number zero.

Case 1:17-cv-00480-CBA Document 139 Filed 02/16/17 Page 40 of 40 PageID #: 1558

CERTIFICATE OF SERVICE I hereby certify that on February 16, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Eastenr District of New York by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

Dated: February 16, 2017

Respectfully submitted,
/s/ Daniel H. Tabak Daniel H. Tabak (DT-9842) Oliver S. Haker (OH-6343) Cohen & Gresser LLP 800 Third Avenue New York, NY 10022 Tel: (212) 957-7600 Fax: (212) 957-4514 dtabak@cohengresser.com ohaker@cohengresser.com
Brad D. Brian (Califonria Bar #79001) Pro Hac Vice pending
Michael R. Doyen (California Bar #119687) Pro Hac Vice pending
Munger, Tolles & Olson LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071 Tel: (213) 683-9100 Fax: (213) 687-3702 Brad.Brian@mto.com Michael.Doyen@mto.com
Chad Golder (New York Bar #4381356) Pro Hac Vice pending
Sarah G. Boyce (DC Bar #1035243) Pro Hac Vice pending
Munger, Tolles & Olson LLP 1155 F. St., NW, 7th Floor Washington, DC 20004 Tel: (202) 220-1100 Fax: (202) 0220-2300 Chad.Golder@mto.com Sarah.Boyce@mto.com
Counsel for Amicus Curiae Association of American Universities

 </s> Case 1:17-cv-00480-CBA Document 146 Filed 02/16/17 Page 1 of 14 PageID #: 1825

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

------------------------------------ x

:

HAMEED KHALID DARWEESH, et al.,

:

Petitioners, v.

:
: Civil Action No. : CV-17-480 :

DONALD TRUMP, President of the United States, et al.,

: : :

(Amon, J.)

Respondents.

:

:

------------------------------------ x

RESPONDENTS’ OPPOSITION TO PETITIONERS’ MOTION TO ENFORCE INTRODUCTION
This is a putative class action filed by two men who claimed they were denied entry into the United States under Executive Order No. 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States,” 82 Fed. Reg. 8,977 (Jan. 27, 2017). Petitioners were admitted to the United States. The Court temporarily enjoined Respondents from removing individuals under the Executive Order.
Petitioners have filed a “motion to enforce,” asking the Court to order Respondents to “[r]eturn to the United States all individuals who were removed at any time after the filing of [the class certification] motion because of the Executive Order.” Mot. to Enforce 17 (ECF No. 53-1). The temporary restraining order prohibits removals of certain individuals from the United States, and Respondents have complied with that Order. Petitioners thus do not seek enforcement of the order but instead now seek different relief affecting individuals who are not named plaintiffs and whose circumstances are not in the record before the Court. Because

Case 1:17-cv-00480-CBA Document 146 Filed 02/16/17 Page 2 of 14 PageID #: 1826
Petitioners are effectively requesting a premature judgment on the merits in favor of a class that has yet to be certified, and because there are already processes in place to assist any individual who was refused entry because of the Executive Order, the Court should deny this application.1
BACKGROUND On the afternoon of January 27, 2017, the President issued an executive order temporarily restricting travel to the United States for certain nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. That evening, Petitioners, two Iraqi nationals holding immigrant visas, arrived at John F. Kennedy International Airport in New York. Pet. for Writ of Habeas Corpus and Compl. for Declaratory and Injunctive Relief (“Pet.”) at 1. According to Petitioners, one of the two men, Hameed Khalid Darweesh, held a Special Immigrant Visa as an Iraqi interpreter to American forces. Id. ¶ 4. The other, Haider Sameer Abdulkhaleq Alshawi, allegedly held an F2A “follow to join” immigrant visa. Id. ¶ 5. According to the Petition, upon arrival at the airport, U.S. Customs and Border Protection (“CBP”) inspected Petitioners, denied their admission to the United States per the Executive Order, and held Petitioners in its custody. The next day, Petitioners filed their Petition, a motion for class certification, and an emergency motion for injunctive relief. The Court held a hearing later that day during which counsel for Petitioners represented that one of Petitioners had been released, but was unsure of the other’s status. Tr. of Emergency Mot. Hr’g at 3:14-17 (ECF No. 17). The Court granted a temporary restraining order enjoining Respondents from removing individuals from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, who are legally authorized to enter the United States. (ECF No. 8). However, the Court specifically did not restrain the processing of these
1 Petitioners’ motion also asks the Court to order Respondents to produce certain discovery. As ordered by the Court (ECF No. 60), Respondents have addressed that part of the motion separately (ECF No. 68).
2

Case 1:17-cv-00480-CBA Document 146 Filed 02/16/17 Page 3 of 14 PageID #: 1827
individuals, which would include withdrawals under 8 U.S.C. § 1225(a)(4). Tr. of Emergency Mot. Hr’g at 17–18, 20 (ECF No. 17). The motion for class certification, which was filed that same day at 5:43 am local time, remains pending.
Contrary to Petitioners’ assertions, neither Petitioner was denied entry to the United States. Both Petitioners have been admitted to the country. Tr. of Feb. 2, 2017, Status Hr’g at 8–9 (ECF No. 56). The relevant provisions of the Executive Order have been stayed and Respondents are not enforcing those provisions. See Washington v. Trump, No. C17-0141 JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017); see, e.g., Decl. of Todd A. Hoffman (ECF No. 662). No further relief is appropriate.
ARGUMENT Petitioners have moved the Court to order Respondents to “[r]eturn to the United States all individuals who were removed at any time after the filing of Petitioners’ motion for class certification because of the Executive Order.” Mot. to Enforce 17 (ECF No. 53-1). Petitioners include in their definition of “removed” any individuals who voluntarily withdrew their applications for admission. Petitioners also ask the Court to order Respondents to admit these putative class members to the United States. Id. at 14. Petitioners ask the Court to issue these orders under the All Writs Act, by which “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). Petitioners also appeal to the Court’s inherent authority, which is authority “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Dietz v. Bouldin, 136 S. Ct. 1885, 1891 (2016). A court must act reasonably under either source of authority. Specifically, the All Writs Act requires a court to target “the rational ends of law.” United States v. Catoggio, 698
3

Case 1:17-cv-00480-CBA Document 146 Filed 02/16/17 Page 4 of 14 PageID #: 1828
F.3d 64, 67 (2d Cir. 2012). A court’s exercise of inherent authority must “be a reasonable response to a specific problem.” Dietz, 136 S. Ct. at 1891.
As explained below, Petitioners’ overreaching request is unreasonable—and thus an inappropriate use of the Court’s authority—in three ways. First, the order sought would summarily award Petitioners the final relief sought in the Petition, thereby leapfrogging class certification, discovery, and judgment. Second, the motion asks the Court to give relief prematurely to an uncertified class where the requested relief may be in violation of the original terms of the individual’s visa (e.g., the purpose of travel to the United States has concluded) or unwanted (e.g., a putative petitioner may no longer wish to enter the United States). Third, Petitioners fail to recognize the processes already available to members of the putative class. For these reasons, the Court should deny the motion.
I. Petitioners are seeking a premature final judgment. First, Petitioners’ request is unreasonable because what they are really seeking is a
permanent injunction on the merits, not an order “in aid of [the Court’s] jurisdiction[],” 28 U.S.C. § 1651(a), or a “‘reasonable response to the problems and needs’ confronting the court’s fair administration of justice.” Dietz, 136 S. Ct. at 1892. Petitioners’ motion makes that clear: “In light of Respondents’ unlawful actions, the Court should exercise its inherent and statutory authority to order the return of all those individuals removed pursuant to the [Executive Order] since the filing of the motion for class certification . . . .” Mot. to Enforce 11 (ECF No. 53-1) (emphasis added). By “unlawful actions,” Petitioners mean Respondents’ alleged actions in enforcement of the Executive Order. Id. (“Removals of class members based on the [Executive Order] are unlawful . . . .”). This is in contrast to any alleged violation of the temporary
4

Case 1:17-cv-00480-CBA Document 146 Filed 02/16/17 Page 5 of 14 PageID #: 1829
restraining order, since Petitioners seek relief for allegedly coerced withdrawals that took place well before the temporary restraining order was entered.2
That basis for the relief requested in Petitioner’s motion is exactly the same basis alleged for ultimate relief in Petitioners’ lawsuit. Each one of the Petition’s counts reflects this. E.g., Pet. ¶¶ 62 (Count One),3 65 (Count Two),4 67 (Count Three),5 74 (Count Five).6 The Petition’s Prayer for Relief reflects this. Id. at 18 (asking the Court to “[i]ssue an injunction ordering Respondents not to detain any individual solely on the basis of the [Executive Order]”). It is also the basis for their class certification motion, which is why they ask the Court to grant relief for individuals affected any time after that motion was filed. Petitioners are, therefore, asking in their motion for the Court to grant them ultimate relief, going back, inexplicably, to the filing of their motion for class certification.
Asking the Court to grant ultimate relief is inappropriate because the Court has yet to hear full arguments on the merits. Petitioners’ motion is an improper procedural device for the relief sought because even a preliminary injunction is designed only “to preserve the relative
2 Respondents deny these allegations of coercion. 3 “Respondents’ actions in denying Petitioners the opportunity to apply for asylum, taken pursuant to the [Executive Order], violate the procedural due process rights guaranteed by the Fourteenth Amendment.” (emphasis added). 4 “Respondents’ actions in seeking to return Petitioners to Iraq, taken pursuant to the [Executive Order], deprive Petitioners of their rights under 8 U.S.C. § 1231(b) and the Convention Against Torture without due process of law.” 5 “Respondents’ actions in seeking to return Petitioners to Iraq, taken pursuant to the [Executive Order], deprive Petitioners of their statutory and regulatory rights.” 6 “Respondents’ actions in detaining and mistreating Petitioners and other members of the proposed class as set forth above [violated] the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A)–(D).”
5

Case 1:17-cv-00480-CBA Document 146 Filed 02/16/17 Page 6 of 14 PageID #: 1830
positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Thus, “it is generally inappropriate for a federal court at the preliminaryinjunction stage to give a final judgment on the merits.” Id.; see Irish Lesbian & Gay Org. v. Guiliani, 143 F.3d 638, 646 (2d Cir. 1998) (“Because it is likely that one or more of the parties will not present their entire case at an unconsolidated preliminary injunction hearing, it ordinarily is improper to decide a case solely on the basis of that type of hearing.” (quoting 11A Charles A. Wright et al., Federal Practice and Procedure § 2950 (2d ed. 1995))). Here, Petitioners are not seeking temporary or interim relief; as the Court noted, the motion “seeks injunctive relief broader than ordered by Judge Donnelly.” Order at 3 (ECF No. 60). Petitioners’ demands for the putative class members’ return should therefore properly be resolved within the ordinary course of litigation.
Neither the All Writs Act nor the Court’s inherent judicial authority authorize the relief sought by Petitioners. “The All Writs Act is not a grant of plenary power to the federal courts,” and “it does not authorize [a court] to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate.” Ass’n for Retarded Citizens of Conn., Inc. v. Thorne, 30 F.3d 367, 370 (2d Cir. 1994). Similarly, “[b]ecause the exercise of an inherent power in the interest of promoting efficiency may risk undermining other vital interests related to the fair administration of justice, a district court’s inherent powers must be exercised with restraint.” Dietz, 136 S. Ct. at 1893.
For example, Respondents have invoked Federal Rule of Civil Procedure 12(b) to ask the Court to dismiss the Petition and Rule 65(a) to oppose Petitioners’ motion for a preliminary injunction. Respondents intend to invoke Rule 23 to oppose class certification at the appropriate time. See Thorne, 30 F.3d at 370–71 (reversing a writ joining a state agency to a lawsuit in part
6

Case 1:17-cv-00480-CBA Document 146 Filed 02/16/17 Page 7 of 14 PageID #: 1831
because the district court never analyzed the federal rules of civil procedure pertaining to joinder).
There is no need for the Court to bypass the ordinary litigation process by issuing this order. The exigency that prompted an emergency hearing on a Saturday night has passed. Issuing this order now would undermine Respondents’ and the Court’s interest in the fair administration of justice.
II. The Court should decline to prematurely grant relief to an uncertified class. Second, the two named Petitioners have already been admitted to the United States.
Thus, instead of seeking relief for themselves, Petitioners are asking the Court to grant relief exclusively for a putative, uncertified class consisting entirely of unnamed individuals. “[A] district court may only certify a class if it is satisfied, after a rigorous analysis, that the requirements of Rule 23 are met.” In re Am. Int’l Grp., Inc. Sec. Litig., 689 F.3d 229, 238 (2d Cir. 2012) (internal quotation marks omitted).
The Court has not undertaken this “rigorous analysis” and certified a class. Therefore, there is no class. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) (“[A]ctual, not presumed, conformance with Rule 23(a) remains . . . indispensable.”).7 Nor can the Court certify a class on this motion because, among other reasons, the Court has to make an individualized determination relating to coercion for each putative class member. And even were the Court to undertake this “rigorous analysis” prematurely, there is no basis for class certification at this time
7 Petitioners highlight the Court’s comment at the emergency motion hearing that “there is a likelihood with respect to the certification of the class, that the class will be certified.” Tr. of Emergency Mot. Hr’g at 13:14-16 (ECF No. 17). This comment should be given no weight at this stage because Respondents have not yet presented their own arguments on class certification, and this one line does not constitute a “rigorous” Rule 23 analysis.
7

Case 1:17-cv-00480-CBA Document 146 Filed 02/16/17 Page 8 of 14 PageID #: 1832
because, among reasons, “no class may be certified that contains members lacking Article III standing,” Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006), a showing that Petitioners have, as of yet, failed to make.
The putative class members are not included in this lawsuit. The Court should decline Petitioners’ unreasonable request to give relief to these individuals until there is a certified class and a judgment in their favor.
Petitioners believe that the Court should grant the extraordinary and likely unprecedented relief of requiring Respondents to physically return all putative class members to the United States—without any further inquiry into Petitioner’s claims—on the thin reed that Respondents were “on notice of [their] challenge to removal.” Mot. to Enforce 11 (ECF No. 53-1). Petitioners provide no authority for the proposition that any time any motion for class certification is filed, the opposing parties must immediately cease the actions that are allegedly wronging putative class members. Such a rule makes no sense, because it would convert motions for class certification into unilateral, party-imposed injunctions, thereby encouraging parties to file frivolous motions for class certifications. Moreover, such a rule would violate fundamental due process considerations embodied in Rule 23 with respect to defendants in class action cases. Cf. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 805 (1985) (“The only way a class-action defendant . . . can assure itself of this binding effect of the judgment is to ascertain that the forum court has jurisdiction over every plaintiff whose claim it seeks to adjudicate, sufficient to support a defense of res judicata in a later suit for damages by class members”). Accordingly, the proper route for parties to remedy harms allegedly inflicted after the filing of a motion for class certification is to achieve class certification and then a favorable judgment.
8

Case 1:17-cv-00480-CBA Document 146 Filed 02/16/17 Page 9 of 14 PageID #: 1833
The putative class members here distinguish this case from the only published case Petitioners cite from the immigration context. Cf. Ying Fong v. Ashcroft, 317 F. Supp. 2d 398, 408 (S.D.N.Y. 2004) (ordering the government to return a single, known individual to the United States whose removal the court had previously stayed). Because each named Petitioner is already in the United States, the Court should deny Petitioners’ motion to compel the return of their uncertified class to the United States.
III. There is already a process for putative class members to follow if they wish to return to the United States and are admissible.
Finally, the order sought by Petitioners is unreasonable because the putative class members already have avenues to travel to the United States. First, due to a nationwide preliminary injunction issued in Washington v. Trump, No. C17-0141 JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017), most individuals previously affected by the Executive Order can now return to the United States unimpeded by the Executive Order. The only individuals of whom Respondents are aware who may continue to encounter difficulties returning to the United States are those individuals who were subject to the Executive Order, who were found inadmissible in the early hours of implementation, chose to seek to withdraw rather than go through any immigration proceedings, and whose visas were physically marked by CBP as revoked. And even then, the difficulty in traveling is due to airline carriers’ reluctance to board travelers with a visa physically marked as revoked. See Second Decl. of Todd A. Hoffman ¶¶ 13, 16 (Ex. A). But CBP, in coordination with the Department of State, has already taken, and continues to take, steps to facilitate return travel to the United States for those individuals. Id.
As Petitioners acknowledge, “some of these individuals have since returned to the United States.” Mot. to Enforce 11 (ECF No. 53-1). Indeed, CBP has identified 141 individuals who
9

Case 1:17-cv-00480-CBA Document 146 Filed 02/16/17 Page 10 of 14 PageID #: 1834
were denied admission as a result of the Executive Order and may have had their visas revoked. Second Hoffman Decl. ¶¶ 7–8 (Ex. A). Thirty-eight of those 141 affected individuals have already returned to, and been admitted to, the United States, many with direct assistance by CBP. Id. ¶¶ 9–10. These include, for example, Petitioners’ declarant Sara Yarjani (as recognized by Petitioners’ counsel), and Suha Amin Abdullah Abushamma. Abushamma v. Trump, Case No. 17-cv-488 (CBA) (E.D.N.Y. dismissed Feb. 8, 2017) (voluntarily dismissing the case after the petitioner returned to the United States).
Second, individuals whose visas were physically canceled may be able to secure transportation foils or new visas in order to travel to the United States, as was done by Petitioners’ declarant Ramez Snober, his wife, and their two children. Decl. of Bryan M. Giblin (Ex. B); see Second Hoffman Decl. ¶ 17 (Ex. A). To facilitate that effort, CBP has shared its list of all 141 individuals denied admission with the Department of State. Second Hoffman Decl. ¶ 17 (Ex. A).
In the alternative, Respondents’ counsel, working with CBP, have offered to assist with the return of any other individuals affected by the Executive Order. Counsel for Petitioners have specifically been asked to reach out to all relevant organizations to inform them of this. CBP can help by liaising with the Department of State and air carriers to facilitate the boarding of flights to the United States of affected individuals on a case-by-case basis. Id. ¶¶ 11–16. For example, CBP has been able to secure return of at least two individuals through this process. Id. ¶ 14–15. Respondents’ counsel and CBP remain available to discuss with Petitioners if Petitioners believe Respondents are not complying with any court order. Id. ¶ 18.
Third, some individuals might not be eligible to return as they are independently inadmissible to the United States. For example, declarant Yahya Aburomman was not denied
10

Case 1:17-cv-00480-CBA Document 146 Filed 02/16/17 Page 11 of 14 PageID #: 1835
entry to the United States on account of the Executive Order. He admits to being a Jordanian citizen and holding a Jordanian passport. Aburomman Decl. ¶¶ 1, 5 (ECF No. 53-10). As Petitioners concede, “Jordan, however, is not on the list of seven countries covered by the [Executive Order].” Mot. to Enforce 13 (ECF No. 53-1). Moreover, it appeared to the inspector that Mr. Aburomman might be inadmissible to the United States as an intending immigration without immigrant documentation. Aburomman Decl. ¶ 14 (ECF No. 53-10). Petitioners thus fail to show any reasonable basis that Mr. Aburomman is admissible to the United States but for the Executive Order. This individualized circumstance also highlights why the Court should decline to grant relief to a class that has not yet been certified.
Fourth, Petitioners provide no evidence that all members of the putative class even want to return to the United States. For instance, Petitioners cite a declaration by Rashid Ahmed Gibril Ali, who alleges he is a citizen of Sudan who traveled to the United States but was turned around at the airport by CBP. Ali Decl. (ECF No. 53-9). But Mr. Ali was already planning to leave the United States on February 5, 2017. Id. He had planned to visit the United States—and had been issued a visa to enter the United States—for the sole purpose of attending a four-day conference. Id. Moreover, Mr. Ali never says he would return to the United States, and given that his conference has concluded, he very plausibly may not want to—and he may not be admissible now on the original visa. At the very least, Mr. Ali’s case illustrates why the Court should reject Petitioners’ assumption that every individual denied entry into the United States because of the Executive Order necessarily wants to return right at this time.
Given these practical considerations and the processes already available to the uncertified class, Respondents believe that Petitioners’ request for a court order is unreasonable here.
11

Case 1:17-cv-00480-CBA Document 146 Filed 02/16/17 Page 12 of 14 PageID #: 1836 CONCLUSION
Petitioners ask the Court to order Petitioners to “return” individuals affected the Executive Order to the United States. This request is unreasonably premature, and ignores the processes Petitioners’ uncertified class can use at the present to return to the United States. The Court should deny this part of the Motion to Enforce (ECF No. 53).
12

Case 1:17-cv-00480-CBA Document 146 Filed 02/16/17 Page 13 of 14 PageID #: 1837

Dated: February 16, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director
GISELA A. WESTWATER Assistant Director
EREZ REUVENI Senior Litigation Counsel
SAMUEL P. GO Senior Litigation Counsel
By: s/ Steven A. Platt STEVEN A. PLATT Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 532-4074 Fax: (202) 305-7000 steven.a.platt@usdoj.gov
Counsel for Respondents

13

Case 1:17-cv-00480-CBA Document 146 Filed 02/16/17 Page 14 of 14 PageID #: 1838 CERTIFICATE OF SERVICE
I hereby certify that on February 16, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Eastern District of New York by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
s/ Steven A. Platt STEVEN A. PLATT Trial Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section Counsel for Respondents
14

Case 1:17-cv-00480-CBA Document 146-1 Filed 02/16/17 Page 1 of 7 PageID #: 1839
EXHIBIT A

Case 1:17-cv-00480-CBA Document 146-1 Filed 02/16/17 Page 2 of 7 PageID #: 1840

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HAMEED KHALID DARWEESH, et al., Plaintiffs,
v.
DONALD TRUMP, et al., Defendants.

)

)

)

Civil Case No.

)

17-CV-00480 (AMD)

)

)

)

)

)

)

)

SECOND TODD A. HOFFMAN DECLARATION In accordance with the provisions of28 U.S.C. § 1746, I, Todd A. Hoffman, declare the following to be true and correct: I. I am the Executive Director of Admissibility and Passenger Programs ("APP"), within the Office of Field Operations, U.S. Customs and Border Protection ("CBP"), an agency within the Department of Homeland Security ("DHS"). As Executive Director of Admissibility and Passenger Programs, I am responsible for overseeing and coordinating all CBP programs

States. 2. I make this declaration based on my own personal knowledge and information
provided to me in the course of my official duties. In preparing this declaration, I, as well as others on my staff who work under my supervision, have reviewed CBP data and other information related to the inspection and processing of international visitors to the United States who arrived and applied for admission at United States ports of entry, and at CBP preclearance locations, since January 27, 2017.

Case 1:17-cv-00480-CBA Document 146-1 Filed 02/16/17 Page 3 of 7 PageID #: 1841

3. I am familiar with the President's Executive Order 13769, "Protecting the Nation

from Foreign Terrorist Entry into the United States" issued on January 27, 2017 ("Executive

Order"), and the steps that CBP took to implement it.

4. I am familiar with the letter issued by the Department of State on January 27,

2017, provisionally revoking all nonimmigrant and immigrant visas of nationals of Iraq, Syria,

Iran, Sudan, Libya, Somalia, and Yemen, subject to limited exceptions, pursuant to the Executive

Order (the "State Revocation Letter"), and with the letter issued by the Department of State on

February 3, 2017, reversing the aforementioned provisional revocations ("State Reinstatement

Letter").

5. I am also familiar with the Decision and Order issued by this Court in the above-

styled action on January 28, 2017 (the "E.D. N.Y. Order"), and the Temporary Restraining Order

issued by the District Court, Western District of Washington, on February 3, 2017 (the "W.D.

Wash. TRO"), enjoining and restraining enforcement of certain provisions within the Executive

Order.

CBP Efforts to Identify Individuals with Physically "Revoked" Visas

6.

_______

Syria, Iran, Sudan, Libya, Somalia, and Yemen, containing valid United States visas, may apply

for admission to the United States to the same extent as before the Executive Order. However,

CBP understands that there is a subset of individuals originally affected by the Executive Order

who may experience difficulties traveling to the United States in order to apply for admission.

7. When CBP encounters an applicant for admission with a visa that has been

revoked by the Department of State, it is CBP's normal practice to physically mark the visa as

"revoked." Between January 27, 2017 (the date of the Executive Order and the State Revocation

Case 1:17-cv-00480-CBA Document 146-1 Filed 02/16/17 Page 4 of 7 PageID #: 1842

Letter) and February 3, 2017 (the date of the W.D. Wash. TRO and the State Reinstatement

Letter), CBP encountered individuals subject to the Executive Order with visas revoked by the

Department of State, and CBP marked many of those visas as "revoked." Because these

individuals possess visas physically marked as "revoked," air carriers may deny these individuals

boarding of flights bound for the United States.

8. To identify affected individuals with visas physically marked "revoked," CBP

searched its records to identify those individuals holding passports from Iraq, Syria, Iran, Sudan,

Libya, Somalia, or Yemen, who, between January 27, 2017 and February 3, 2017, were

inspected by CBP and deemed inadmissible to the United States on the basis of the Executive

Order. CBP identified 141 such individuals - forty-four that were encountered at United States

airports, and another ninety-seven that were encountered at land border ports of entry or

preclearance locations abroad.

9. The forty-four individuals encountered by CBP at airports were all encountered

on January 27 or 28, 2017. Upon being determined inadmissible, each of these forty-four

individuals voluntarily withdrew their applications for admission to the United States and

.......

.QYJbQ"!,!llQJ1ight.!..

.•.1wrnty.-:four.........................

of the forty-four individuals have since traveled back to, and been admitted to, the United States,

many with the assistance by CBP described below.

10. For those individuals encountered at land border ports of entry or preclearance

locations, upon being determined inadmissible, each of the ninety-seven individuals voluntarily

withdrew their applications for admission to the United States. According to CBP records,

fourteen of the ninety-seven individuals have since returned to and been admitted to the United

States.

Case 1:17-cv-00480-CBA Document 146-1 Filed 02/16/17 Page 5 of 7 PageID #: 1843

CBP Efforts to Facilitate Return Travel for Affected Individuals 11. In an effort to fully comply with all court orders, including the E.D. N.Y. Order

and the W.D. Wash. TRO, CBP, in partnership with the Department of State, has taken, and

continues to take, reasonable steps to facilitate travel to the United States for those individuals

whose visas were physically marked as "revoked" on the basis of the Executive Order.

12. CBP personnel routinely communicate with air carriers. To facilitate close

cooperation between CBP and air carriers, CBP developed the Carrier Liaison Program, through

which CBP maintains a 24/7 Regional Carrier Liaison Group (RCLG) phone center to provide

real-time entry requirements and document validity advice to carriers worldwide.

13. Since January 28, 2017, CBP has worked through its RCLG to facilitate the

boarding of flights to the United States of affected individuals, on a case-by-case basis. Once

CBP receives a request from an affected individual and determines that facilitation of travel is

appropriate, CBP informs the air carrier, through the RCLG, that the particular individual may be

permitted to board an aircraft bound for the United States without the carrier fearing it will be

fined under 8 U.S.C. § 1323. While CBP cannot require an air carrier to board and transport any

(lqyi

in<liyigµ(ll

.

that is marked as revoked, the individual's visa has been reinstated and is deemed by CBP to be

valid for travel.

14. CBP has utilized this process to successfully facilitate the return travel for

approximately twenty-four individuals. For example, S.A. (name withheld to protect the privacy

of the individual) was initially inspected by CBP at JFK International Airport on January 28,

2017. Based on the Executive Order and the State Revocation Letter, Ms. A. was determined to

be inadmissible to the United States, and her United States visa was physically marked by CBP

Case 1:17-cv-00480-CBA Document 146-1 Filed 02/16/17 Page 6 of 7 PageID #: 1844

as revoked. She withdrew her application for admission to the United States and departed for a

foreign destination. On February 3, 2017, CBP received notice that Ms. A. wished to travel back

to the United States. CBP utilized its RCLG to contact the air carrier, and Ms. A. was cleared to

board her aircraft. Ms. A. was admitted to the United States on February 6, 2017.

15. CBP is currently utilizing this same process to facilitate the return travel ofH.E.,

who was initially encountered by CBP on January 28, 2017, at Orlando International Airport.

H.E. was determined to be inadmissible, withdrew her application for admission, and her visa

was marked "revoked." On February 13, 2017, CBP received notice that H.E. wished to travel

back to the United States. CBP utilized its RCLG to contact the air carrier, and H.E. was cleared

to board her aircraft. H.E. is currently on board an aircraft and in transit to the United States as

of the signing of this Declaration.

16. CBP will continue to utilize this process, on a case-by-case basis, as CBP

becomes aware of affected individuals with physically revoked visas as described above who

wish to return to the United States where such facilitation is appropriate. Of course, CBP cannot

commit to the return of any particular individual, or to ensuring admission of any individual, as

. .......

ca,pa,9i1y9r a,11Jb9rity 19

wi1bjndividm1ls

n.91 911mmtly

themselves for admission and CBP is unable to make a final admissibility determination as to

any traveler until the traveler is inspected by a CBP officer. In addition, and regardless of

whether CBP may offer input or a recommendation, carriers ultimately decide whether to permit

each passenger to board their aircraft. Nevertheless, CBP is taking the facilitation steps possible

within the practical and legal limitations imposed on it.

Coordination with the Department of State to Notify Affected Individuals

Case 1:17-cv-00480-CBA Document 146-1 Filed 02/16/17 Page 7 of 7 PageID #: 1845

17. In an effort to more proactively facilitate return travel for individuals with revoked visas, CBP has provided the Department of State with a list of all 141 individuals described above. Even though preclearance locations in foreign countries do not affect "removals" of travelers, CBP nevertheless included those individuals who were encountered at preclearance locations in the materials it has provided to the Department of State. It is my understanding that the Department of State has been using, and will continue to use, the information provided by CBP to facilitate the issuance of transportation foils (which enable individuals to board aircraft), or the reissuance of revoked visas, to affected individuals.
18. To the extent any of these individuals wish to travel on their previously issued visa, CBP remains willing to consider coordinating with the airlines to facilitate such travel on a case-by-case basis.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on fl blrA/'y /C 2v /1 at
(Date)

t/V",,-j ./.1)'1/f'
(City/State)

Signature:

Todd A. Hoffman

Case 1:17-cv-00480-CBA Document 146-2 Filed 02/16/17 Page 1 of 3 PageID #: 1846
EXHIBIT B

Case 1:17-cv-00480-CBA Document 146-2 Filed 02/16/17 Page 2 of 3 PageID #: 1847

DECLARATION OF BRYAN GIBLIN

I, Bryan Giblin, hereby declare under penalty of perjury:

1. I am employed by the United States Department of State as an Attorney Advisor in the Legal Affairs, Advisory Opinions Division of the Visa Office, Bureau of Consular Affairs. In that capacity, I am authorized to search the electronic Consular Consolidated Database of the U.S. Department of State, Bureau of Consular Affairs, for replicated records of non-immigrant visas adjudicated at U.S. embassies and consular posts overseas. I am also familiar with nonimmigrant visa processing procedures.

2. The Consular Consolidated Database ("CCD") contains replicated electronic data recording visa applications, visa interviews, and visas issued and refused at U.S. diplomatic and consular posts worldwide.

3. The CCD reflects that on January 8, 2017, Ramez Snober (DOB:

),

Daniah Al Ghorani (

), H S

(

) and Z S

(

), applied for non-immigrant visas at the United States Embassy in Riyadh,

Saudi Arabia. After a personal interview in the Embassy's consular section, all four applicants

were found to be eligible for B-1/B-2 non-immigrant visas. Those visas were issued on January

9, 2017, and were valid for multiple entries into the United States until January 4, 2019.

4. The CCD further reflects that on February 7, 2017, the four individuals identified in Paragraph 3 above again applied for non-immigrant visas at the United States Embassy in Riyadh, Saudi Arabia. After a personal interview at the Embassy's consular section, all four applicants were found to be eligible for B-1/B-2 visas. Those visas were issued on February 8,· 2017, and are valid for multiple entries into the United States until February 6, 2019.

5. The CCD further reflects that prior to issuing the visas on February 8, 2017, the consular officer noted that the applicants' prior B-1/B-2 visas (issued on January 9, 2017) had been cancelled without prejudice by Customs and Border Protection (CBP) pursuant to Executive Order 13769. The consular officer determined that the cancellation of the applicants' prior visas presented no ground of visa ineligibility.

6. I am aware that upon specific request by CBP consular sections overseas have reached out to named individuals whose visas were canceled by CBP pursuant to E.O. 13769 for the purpose of issuing those individuals transportation letters to facilitate travel.

I declare under the penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge.

WASHINGTON, D.C. FEBRUARY 16, 2017

Case 1:17-cv-00480-CBA Document 146-2 Filed 02/16/17 Page 3 of 3 PageID #: 1848

 </s> Case 1:17-cv-00480-CBA Document 169 Filed 02/17/17 Page 1 of 2 PageID #: 2476
U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section
P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 (202) 532-4074 steven.a.platt@usdoj.gov
Via ECF
February 17, 2017
The Hon. Carol Bagley Amon United States District Court for the Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201
Re: Darweesh, et al. v. Trump, et al., 17 Civ. 480 (CBA)
Dear Judge Amon,
We are writing you regarding new developments in the above-captioned case. This lawsuit challenges an Executive Order that is currently subject to a nationwide injunction. The President has announced his intent to rescind and replace Executive Order No. 13,769, 82 Fed. Reg. 8977 (2017) with a new, substantially revised Executive Order. See Washington v. Trump, 17-35105, ECF 154 (9th Cir. filed Feb. 16, 2017) After conferring, the undersigned counsel for the parties agree that because a new Executive Order is forthcoming, it would be an inefficient use of the Court’s resources and time to hold a hearing on the pending motions that relate to the soon-to-be superseded Executive Order.
As a result, the parties ask to stay proceedings relating to Petitioners’ motion for a preliminary injunction and Respondents’ motion to dismiss. Specifically, counsel for Respondents and counsel for Petitioners respectfully request that the Court stay Respondents’ Sunday, February 19 deadline to file a brief in conjunction with those motions and cancel the hearing on those applications currently set for Tuesday, February 21. The parties would then, within seven days after the President issues the new Executive Order, file a jointly-proposed briefing schedule.
The parties disagree on whether Judge Donnelly’s injunctive order (ECF No. 8) should continue after its current expiration date of February 21, 2017. Respondents oppose extending the order beyond that date, as Respondents contend the named petitioners are no longer affected by the Executive Order, and the Ninth Circuit is maintaining the nationwide injunction pending issuance of a new Executive Order. Petitioners support extending the injunction until the parties

Case 1:17-cv-00480-CBA Document 169 Filed 02/17/17 Page 2 of 2 PageID #: 2477
file their proposed briefing schedule and the Court can schedule a new hearing to determine whether the injunction should be further continued. Alternatively, if the injunction is not extended beyond February 21 because the Court believes that the injunction in the Washington v. Trump matter provides sufficient protection at the moment, then Petitioners respectfully request that the Court make clear that the injunction in this case will be reinstated automatically should the Washington injunction be vacated.
The parties agree that Petitioners’ Monday, February 20 deadline to file a brief in conjunction with their motion to enforce should remain in place. The parties see no cause to remove the related Friday, February 24 hearing from the calendar.

Respectfully submitted,
/s/ Lee Gelernt American Civil Liberties Union Counsel for Petitioners

/s/ Steven A. Platt Steven A. Platt U.S. Department of Justice, Civil Division Office of Immigration Litigation Counsel for Respondents

2

 </s> Case 1:17-cv-00480-CBA Document 170 Filed 02/20/17 Page 1 of 4 PageID #: 2478

February 20, 2017

Honorable Carol Bagley Amon United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201
Dear Judge Amon,

Re: Darweesh v. Trump, No. 1:17-cv-00480-CBA

Petitioners respectfully move this Court to reconsider its order denying their Motion for Leave to File Student Appearances. EDNY Local Rule 6.3. The Court denied the request due to the “complexities of the case.” Dkt. Text for Order re ECF 55 (Feb. 10, 2017). It is undisputed that the law students satisfy the requirements of the Eastern District Student Practice Rule. Counsel for intervenor consent to this motion, and counsel for respondents take no position.

This case is indeed complex. Nevertheless, law student interns working under the supervision of Professors Michael Wishnie and Muneer Ahmad, who co-direct the Worker and Immigrant Rights Advocacy Clinic of the Jerome N. Frank Legal Services Organization at Yale Law School (LSO), have supervised these students and many others in complex cases before district and appellate courts. Three of the law students who are the subject of this motion have already argued and taken deposition testimony in complicated federal matters, and others have previously handled federal and administrative court litigation. See, e.g., Reid v. Donelan, No. 3:13-cv-30125-MAP (D. Mass.) (Ponsor, J.) (law student My Khanh Ngo argued motion to compel and took deposition of senior government official in Washington, DC in habeas class action in which LSO certified as class counsel); Batalla Vidal v. Baran, No 1:16-cv-04576 (E.D.N.Y.) (Garaufis, J.) (law student Will Bloom handled initial status conference in suit seeking declaratory and injunctive relief that nationwide injunction entered by district court in Texas against President Obama’s 2014 immigration relief does not apply in New York); Giammarco v. Kerlikowske, No. 16-1109 (2d Cir) (law student Aaron Korthuis argued appeal of dismissal of habeas corpus ad testificandum on behalf of deported U.S. Army veteran).

Several experienced counsel in this case, whose presence ensures that the matter will be conducted in a competent and professional manner, first appeared in complicated federal cases as law students under the supervision of Wishnie or Ahmad. See ECF Nos. 59 (Omar Jadwat), 29 (Cody Wofsy), 119 (Rebecca Heller). Wishnie himself first defended depositions and examined a witness at trial as a law student intern in Haitian Centers Council v. Sale, No. 92-cv- 1258 (SJ) (E.D.N.Y.) (ordering release of HIV+ Haitian refugees detained at Guantanamo). Notably, in the past decade, Judges Reena Raggi (2d Cir.) and Mark Kravitz (D.Conn.) hired law students Saurabh Sanghvi and Justin Cox shortly after they presented argument in complex matters under Wishnie’s supervision.

Wishnie signed the law student appearances in this case, ECF No. 55-1, and the pro hac vice motion of Ahmad is pending. ECF No. 138. Over the past twenty years, as a clinical professor at NYU and Yale, Wishnie has supervised students in dozens of federal matters. One

Case 1:17-cv-00480-CBA Document 170 Filed 02/20/17 Page 2 of 4 PageID #: 2479
sensitive and complex case is illustrative of the high quality, professional representation provided by law student interns even in complicated matters. In Doe v. Hagenbeck, No. 1:13-cv2802 AKH (S.D.N.Y.), students under Wishnie’s supervision represent a young woman raped while a cadet at West Point in her suit against senior military leaders. The case was originally filed under seal and Judge Hellerstein indicated reservations about permitting students to appear. Upon review of a submission similar to this, however, Judge Hellerstein reconsidered, allowing the students to appear and argue the motion to dismiss, which he denied in part. 98 F.Supp.3d 672 (S.D.N.Y. 2015). On defendants’ appeal, one student argued a motion to transfer and two others argued the merits of the appeal. No. 15-1890 (2d. Cir.) (decision pending).
A few other cases demonstrate the ability of law student interns to appear and handle complex matters under the supervision of Wishnie and Ahmad:
1. Badrawi v. United States, No. 3:07-cv-1074 (D. Conn.) (Hall, J.). Students represented a Lebanese-Egyptian national in a damages action against federal immigration agents and state correction officials challenging his wrongful arrest, detention, and deportation. The client alleged Bivens, Federal Tort Claims Act, and § 1983 claims. The national security aspects of the case made it highly sensitive, prompting entry of an attorney-eyes-only protective order (an order that included the students), and discovery led into the White House itself. Students argued all of the dispositive and nondispositive motions, see, e.g., El Badrawi v. DHS, 579 F.Supp.2d 249 (D. Conn. 2008) (denying motions to dismiss in part); El Badrawi v. United States, 787 F.Supp.2d 204 (D. Conn. 2011) (denying summary judgment motion of United States and granting plaintiff s cross-motion in part); El Badrawi v. DHS, 258 F.R.D. 198 (D. Conn. 2009) (ordering government to produce sensitive documents); took and defended depositions; conducted judicial mediations; and secured a favorable settlement.
The students also litigated related federal and state Freedom of Information Act (FOIA) cases. In the state case, the United States intervened and the matter reached the Connecticut Supreme Court, where a student argued. Commissioner of Correction v. Freedom of Info. Com’n, 307 Conn. 52 (2012). In one federal FOIA case, students argued before Judge Mark Kravitz and the Second Circuit appeal. Lowenstein v. DHS, 603 F.Supp.2d 354 (D.Conn. 2009), aff’d 626 F.3d 678 (2d Cir. 2010). It was after this Second Circuit argument that Judge Raggi hired the student as a law clerk. Students also argued multiple motions and took depositions in the second related federal FOIA case. El Badrawi v. DHS, 583 F.Supp.2d 285 (D.Conn. 2008) (Hall, J.).
2. Diaz-Bernal v. Myers, No. 3:09-cv-1734 (D. Conn.) (Underhill, J.). In 2007, federal agents conducted the largest immigration raid in New Haven’s history. Students represented thirty of those arrested in Immigration Court, where eighteen cases went to evidentiary hearings conducted by students. In addition, students represented eleven of the arrestees in a complicated damages action against nearly a dozen federal defendants, including senior government officials. The clinic served as lead counsel, and students and law firm pro bono lawyers divided the arguments on the defendants’ three motions to dismiss. Diaz-Bernal v. Myers, 758 F.Supp.2d 106 (D. Conn. 2010). Students also conducted discovery and led negotiations that resulted in a $350,000 settlement plus immigration relief for all plaintiffs.

Case 1:17-cv-00480-CBA Document 170 Filed 02/20/17 Page 3 of 4 PageID #: 2480
3. Reid v. Donelan, No. 3:13-cv-30125-MAP (D. Mass.) (Ponsor, J.). The clinic filed a habeas class action to challenge the mandatory detention without bond of immigrants convicted of certain criminal offenses. Judge Ponsor granted the writ to the named petitioner, certified the class, appointed LSO class counsel pursuant to Fed.R.Civ.P. 23(g), and granted class-wide relief. 991 F. Supp. 2d 275 (D. Mass. 2014); 297 F.R.D. 185 (D. Mass. 2014); 22 F. Supp. 3d 84 (D. Mass. 2014). The clinic serves as lead counsel and students have been actively involved in all the briefing and arguments at the District Court, and on appeal at the First Circuit. Reid v. Donelan, 819 F.3d 486 (1st Cir. 2016) (affirming in part and vacating and remanding in part).
4. Giammarco v. Beers, No. 3:16-MC-00099-VLB (D.Conn.) (Bryant, J.) The clinic sued on behalf of a deported U.S. Army veteran seeking to compel adjudication of his 1982 naturalization application, which was never decided by the government. Judge Bryant ordered the agency to adjudicate the client’s application. Giammarco v. Beers, 170 F.Supp.3d 320 (D. Conn. 2016). In a related case, the Judiciary Committee of the Connecticut General Assembly issued a legislative subpoena commanding the in-person testimony of this client and a second clinic client, the deported wife of a Vietnam veteran. When the government refused to let the clients return to the U.S. so as to comply with the subpoena, students filed a petition for writ of habeas corpus ad testificandum and briefed and argued the case in district court and before the Second Circuit on appeal. Milardo v. Kerlikowske, 2016 WL 1305120 (D. Conn. Apr. 1, 2016), aff’d, --- Fed.Appx. ---- 2016 WL 6427242 16-1109-PR (2d. Cir. Oct. 31, 2016).
5. Monk v. McDonald, No. 15-1280 (Vet. App.), notice of appeal pending sub nom Monk v. Shulkin, No.15-7092 (Fed. Cir.). Students represent a proposed nation-wide class of disabled veterans challenging extreme delays in VA adjudication of their disability benefits applications. The U.S. Court of Appeals for Veterans’ Claims held that it lacks jurisdiction ever to aggregate veterans’ claims, as that court has held in numerous cases since Congress established it in 1989. On appeal, two students argued before the U.S. Court of Appeals for the Federal Circuit, where the panel’s questions led the Justice Department lawyer to concede that a “lack of authority to aggregate under any circumstances would be reversible error.” Tr. at 19.
The above matters are a few examples of the many complex federal cases handled by law students working under the supervision of Wishnie or Ahmad. See also Families for Freedom v. Napolitano, No. 08 Civ. 4056 (S.D.N.Y.) (Chin, J.) (judicial review of agency failure to adjudicate petition for rule-making); Shepherd v. McHugh, No. 3:1 l-cv- 641 (D. Conn.) (Thompson, C.J.) (proposed nation-wide class action for Vietnam veterans with PTSD); Brizuela v. Feliciano, No. 3:12-cv-226 (D. Conn.) (Arterton, J.) (proposed state-wide habeas class action for short-term immigration detainees); Barrera v. Boughton, No. 3:07-cv-1436 (D. Conn.) (Chatigny, J.) (representation in civil rights action on behalf of eight day-laborers arrested by local police); Topo v. Dhir, No. 01 Civ. 10881 (S.D.N.Y.) (Castel, J.) (representation of domestic worker in suit against former employers); Manliguez v. Joseph, No. 01-cv-7574 (E.D.N.Y.) (Garaufis, J.) (same); Cardona v. Shinseki, Vet. App. No. 11-3083 (Kasold, C.J.) (representation of disabled veteran in challenge to VA statute denying spousal benefits to same-sex partner); Bourguignon v. MacDonald, No. 3:09-cv-30068 (D. Mass.) (Ponsor, J.) (habeas petition challenging prolonged immigration detention without bond hearing); Monk v. Mabus, No. 3:14-cv-00260 (D. Conn.) (proposed nation-wide class action on behalf of

Case 1:17-cv-00480-CBA Document 170 Filed 02/20/17 Page 4 of 4 PageID #: 2481
Vietnam veterans with PTSD and bad discharges); Liberian Community Association of Connecticut v. Malloy, No. 3:16-cv-00201 (D. Conn.) (Covello, J.) (proposed state-wide class action on behalf of persons subject to illegal state public health quarantine).
In the instant matter, many of the students who have sought leave to appear are third-year law students who would satisfy the requirements for student appearances before the Second Circuit. See Local Rules of the Second Circuit, Rule 46.1(e)(3). The others are second-year law students currently completing their fourth semester. These students have been closely involved in every aspect of this litigation, developing and researching legal claims and drafting a substantial portion of the first four court filings, including the habeas petition and the motions for class certification, to stay removal, and to compel or enforce. ECF Nos. 1, 4, 6, 52. But for the students’ participation, it is unlikely that the petitioners would have been in a position to file suit on an emergency basis. The students began working on behalf of the named petitioners hours after the Executive Order was signed, laboring through the night with co-counsel to draft and file the petition and motion for class certification at 5:45 a.m. the next morning, and then the motion for a stay of removal filed later that day. These filings led Judge Donnelly to enter a nationwide stay. Since that time, law students have continued to play an integral role in all aspects of the case.
Finally, the named petitioners have expressly authorized these students to appear on their behalf. ECF No. 55. It is appropriate to respect the petitioners’ choice of counsel. See In re Methyl Tertiary Butyl Ether Products Liab. Litig., 438 F. Supp. 2d 305, 309-10 (S.D.N.Y. 2006) (noting the “strong public policy to allow persons to retain counsel of their choice”) (internal quotations omitted); Matter of Abrams, 62 N.Y.2d 183, 196 (1984) (“An individual’s right to select an attorney who he believes is most capable of providing competent representation implicates … the First Amendment guarantees of freedom of association”).
For the foregoing reasons, Petitioners respectfully request that this Court reconsider its denial of leave for law student interns to appear in this matter.
Respectfully submitted,
/s/ Michael J. Wishnie Michael J. Wishnie (MW 1952) Muneer I. Ahmad JEROME N. FRANK LEGAL SERVICES ORG. YALE LAW SCHOOL P.O. Box 209090 New Haven, CT 06520-9090 Phone: (203) 432-4800 Fax: (203) 432-1426 michael.wishnie@yale.edu
cc: Counsel for Respondents (via ECF) Counsel for Intervenor (via ECF)

 </s> Case 1:17-cv-00480-CBA Document 171 Filed 02/20/17 Page 1 of 8 PageID #: 2482

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------- x HAMEED KHALID DARWEESH, and HAIDER SAMEER ABDULKHALEQ ALSHAWI, on behalf of themselves and others similarly situated,

Petitioners,

and

PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK,

-against-

Intervenor-Plaintiff,

DONALD J. TRUMP, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND BORDER PROTECTION, JOHN KELLY, KEVIN K. MCALEENAN, and JAMES T. MADDEN,

Respondents. -------------------------------------------------------------- x

Case No. 17-cv-480 (CBA)
REPLY IN SUPPORT OF PETITIONERS’ MOTION TO ENFORCE COURT ORDER BY COMPELLING RETURN OF INDIVIDUALS REMOVED

Representations made by the government in its brief opposing Petitioners’ motion to compel return of individuals removed under the Executive Order (“EO”) considerably simplify the dispute between the parties. The government has revealed the existence of a list of at least some of those who were excluded from the United States on the basis of the EO. It represents that it has already facilitated the return of about 25 percent of these individuals and will continue to do so in any case in which Petitioners’ counsel or others provide the name of such an individual to the government. Petitioners seek only to ensure that the return of all individuals excluded on the basis of the EO after the filing of their suit, without counsel having to independently learn and provide names to the government one by one.

1

Case 1:17-cv-00480-CBA Document 171 Filed 02/20/17 Page 2 of 8 PageID #: 2483
The government’s claim that the return of individuals should occur only when Petitioners’ counsel learns the names of individuals on their own is untenable. Likewise, the government’s contention that individuals agreed to removal voluntarily is belied by its admission that these individuals chose to leave rather than be placed into removal proceedings and possible lengthy detention. That is not voluntarily agreeing to removal. If there are now a few individuals who genuinely do not wish to return, then they can simply say so after being contacted. But the government’s view that it will facilitate the return of individuals only if Petitioners happen to learn of their existence is nonsensical. That is plainly not what Judge Donnelly intended by issuing a stay to protect the status quo while Petitioners’ challenge was considered expeditiously and ensuring that individuals were not harmed in the interim.
I. THE GOVERNMENT SHOULD PROVIDE ITS LIST OF INDIVIDUALS EXCLUDED UNDER THE EO AND SHOULD ABIDE BY ITS COMMITMENT TO FACILITATING THE RETURN OF THOSE INDIVIDUALS.
The parties’ dispute regarding the proper course moving forward appears to have substantially narrowed. First, the government concedes that a significant number of putative class members were excluded from the United States because of the Executive Order. The government has submitted evidence that it has an accounting of who at least some of those individuals are, thus belying its prior position that it would face insurmountable difficulties to producing such a list. Dkt. 146-1, Second Hoffman Decl. ¶ 8; Dkt. 68 at 5 (Respondents’ Opposition to Petitioners’ Motion to Enforce). And the government has said it will work with Petitioners’ counsel to facilitate the return of any of those individuals who can be identified. Dkt. 146, Respondents’ Opp. Br. to Mot. to Enforce (hereinafter “Opp. Br.”) at 10. Thus, the issue before the Court on this motion is reduced to how the individuals who were excluded and remain abroad should be identified, and how their return should be facilitated.
2

Case 1:17-cv-00480-CBA Document 171 Filed 02/20/17 Page 3 of 8 PageID #: 2484
Second, the government concedes that it denied entry to some “individuals subject to the Executive Order with visas revoked by the Department of State” whom “CBP encountered” on January 27 and 28, 2017, Dkt. 146-1, Second Hoffman Decl. ¶ 7, but it ignores the other members of Petitioners’ proposed class. In particular, the government has provided no information whatsoever as to (a) approved refugees, (b) lawful permanent residents, and (c) others from one of the seven listed countries who were “legally authorized to enter the United States, but who have been or will be denied entry to the United States on the basis of the [EO].” Dkt. 1, ¶ 56 (Petition for Writ of Habeas Corpus and Complaint). Pursuant to Judge Donnelly’s order, the government should have provided this information long ago, and those additional putative class members should receive the same relief on this motion: an opportunity to return.
The government’s current, ad hoc process, relies on Petitioners’ counsel and others to identify individuals abroad. See Dkt. 146-2, Decl. of Bryan Giblin, ¶ 6 (“I am aware that upon specific request by CBP consular sections overseas have reached out to named individuals whose visas were canceled by CBP pursuant to E.O. 13769 for the purpose of issuing those individuals transportation letters to facilitate travel”) (emphasis added). The government’s offer to facilitate the return of putative class members on a case-by-case basis essentially relies on Petitioners’ counsel to identify class members abroad. But counsel’s attempts to do so—without the list of putative class members Judge Donnelly ordered the government to produce—has been necessarily inefficient and incomplete, relying on attorneys seeking to help individual clients or desperate family and friends who are able to locate and contact Petitioners’ counsel. There is no doubt that Petitioners’ counsel, denied access to the complete information that is solely in the possession of the government, have to date identified far less than the complete universe of individuals excluded under the Executive Order, in spite of extensive efforts and outreach.
3

Case 1:17-cv-00480-CBA Document 171 Filed 02/20/17 Page 4 of 8 PageID #: 2485
In the government’s view, Petitioners’ counsel should continue scrambling to identify individuals through whatever information they can gather. This approach makes no sense given that the government already has at least a partial list of those who have been excluded, and has provided that list to the State Department in order to facilitate return.1 Dkt. 146-1, Second Hoffman Decl. ¶ 17. It therefore can easily provide the same to Petitioners and honor its representation to the Court that it will continue to facilitate their return, and should do so.
II. PETITIONERS SEEK ONLY LIMITED PRELIMINARY RELIEF, AND THE GOVERNMENT’S ARGUMENTS TO THE CONTRARY ARE MISPLACED.
Contrary to the government’s assertion in its brief, Petitioners do not in this motion seek final judgment, permanent relief, or ultimate class certification. Opp. Br. at 4-8. There is now no dispute that putative class members were excluded under the EO and remain abroad. In its opposition to Petitioners’ Motion to Enforce, Respondents reveal for the first time that, at a minimum, 141 individuals were deemed inadmissible and prevented from entering the United States based on the EO between January 27, 2017 and February 3, 2017—a period that covers time after the Court issued its stay order prohibiting removal under the EO of any individuals nationwide. See Dkt. 146-1, Second Hoffman Decl. ¶ 8; Dkt. 8, Jan. 28, 2017 Order (enjoining the removal of individuals under the Executive Order). The government further discloses that only 38 of these 141 individuals have been allowed to enter the United States since February 3, 2017. Dkt. 146-1 ¶¶ 8-10. The relief Petitioners seek in this motion is thus not only limited but amply justified.
The government suggests that all the vast majority of the individuals they identify as having been excluded under the EO “voluntarily” withdrew their applications for admission. Id.
1 There is, however, no indication that the Department of State is conducting any outreach to individuals excluded under the EO based on the provision of this list by CBP or otherwise taking steps to facilitate the return of listed individuals.
4

Case 1:17-cv-00480-CBA Document 171 Filed 02/20/17 Page 5 of 8 PageID #: 2486
¶ 10. And the government argues that some of the individuals who were removed may not want to come back. Id. at 11. But there is significant evidence of systemic coercion, and many if not most or nearly all of the individuals who were excluded want at least the opportunity to return— as evident by the many individuals who have already returned despite the ordeal they suffered during their initial exclusion. See Dkt. 53-1 at 15-17 (describing government’s coercive tactics outlined in declarations of removed individuals). Petitioners obviously do not argue that any class member must come back; but the government can and should facilitate the identification of class members and their return if they wish.
The government’s argument that the return of putative class members is equivalent to this Court granting relief on the ultimate merits is wrong. See Opp. Br. at 4-7. Requiring the return of putative class members is not at all equivalent to issuing a “permanent injunction on the merits” on the relief sought in this matter. Id. at 4. Requiring return would not, for example, be a ruling on the merits of Petitioners’ Equal Protection or Due Process claims, but would simply be a necessary order to ensure proper enforcement of the Court’s stay order and to preserve the status quo ante while this Court considers the merits.
Likewise, there is no merit to the government’s suggestion that Petitioners seek a premature certification of the class. Id. at 7-8. The government’s effort to argue otherwise is nothing more than a repackaging of its argument that because the named Petitioners themselves are no longer detained, the Court need not and cannot grant relief to any other members of the putative class. Judge Donnelly already rejected that view for the limited purposes of her stay order. See Stay Hr’g Tr. 4:1-6 (Court responding to the government’s contention that the case was moot because the two named Petitioners had been released by asking, “What about all the other people in the class?”); id. at 13:14-16 (finding a likelihood of class certification). The
5

Case 1:17-cv-00480-CBA Document 171 Filed 02/20/17 Page 6 of 8 PageID #: 2487

relief sought in this motion must be understood as essential to ensure enforcement of the court’s

original stay order and restoration of the status quo ante.

CONCLUSION

For the foregoing reasons, Petitioners respectfully request that this Court grant their

Motion to Enforce and order Respondents to return to the United States all individuals who were

removed at any time after the filing of Petitioners’ motion for class certification because of the

Executive Order.

Dated: February 20, 2017

Respectfully submitted,

Justin B. Cox† NATIONAL IMMIGRATION LAW CENTER 1989 College Ave. NE Atlanta, GA 30317 Tel. (678) 404-9119 cox@nilc.org

/s/ Karen C. Tumlin Karen C. Tumlin†† Nicholas Espíritu†† Melissa S. Keaney† Esther Sung† NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 1600 Los Angeles, CA 90010 Tel. (213) 639-3900 tumlin@nilc.org espiritu@nilc.org keaney@nilc.org sung@nilc.org

Michael J. Wishnie (MW 1952) Muneer I. Ahmad† Elora Mukherjee (EM 4011) JEROME N. FRANK LEGAL SERVICES ORGANIZATION YALE LAW SCHOOL‡ P.O. Box 209090 New Haven, CT 06520-9090 Tel. (203) 432-4800 michael.wishnie@yale.edu

Lee Gelernt (LG-8511) Omar C. Jadwat (OJ-7025) Cecillia D. Wang (CW-8359) Andre I. Segura† AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel. (212) 549-2600 lgelernt@aclu.org ojadwat@aclu.org cwang@aclu.org asegura@aclu.org

6

Case 1:17-cv-00480-CBA Document 171 Filed 02/20/17 Page 7 of 8 PageID #: 2488

Mark Doss Rebecca Heller Julie D. Kornfeld† Stephen Poellot INTERNATIONAL REFUGEE ASSISTANCE PROJECT URBAN JUSTICE CENTER 40 Rector St, 9th Floor New York, NY 10006 Tel. (646)-602-5600 mdoss@refugeerights.org bheller@refugeerights.org jkornfeld@refugeerights.org spoellot@refugeerights.org
Jonathan Polonsky KILPATRICK TOWNSEND & STOCKTON LLP 1114 Avenue of the Americas New York, NY 10036-7703 Tel. (212) 775 8703 jpolonsky@kilpatricktownsend.com

Jennifer Chang Newell†† Cody H. Wofsy†† AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Tel. (415) 343-0770 jnewell@aclu.org cwofsy@aclu.org

† Motion for admission pro hac vice pending. †† Appearing pro hac vice. ‡ For identification purposes only.

Counsel for Petitioners

7

Case 1:17-cv-00480-CBA Document 171 Filed 02/20/17 Page 8 of 8 PageID #: 2489

CERTIFICATE OF SERVICE I, Karen C. Tumlin, hereby certify that on February 20, 2017, the foregoing motion and accompanying exhibits were filed and served through the CM/ECF system. Parties may access the filings through the Court’s CM/ECF System.

Dated: February 20, 2017

/s/ Karen C. Tumlin Karen C. Tumlin

8

 </s> Case 1:17-cv-00480-CBA Document 173 Filed 02/21/17 Page 1 of 4 PageID #: 2491

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------}{ HAMEED KHALID DARWEESH and HAIDER SAMEER ABDULKHALEQ ALSHAWI, on behalf of themselves and others similarly situated,
Petitioners,
and

w!~~'6eo U.s.

OIST~ ·cr .,..,

COUO~TFEF.JOc.EAL.V.

~ * FEB 2 i 2!Jtl

BROOKLYN OFFICE.

PEOPLE OF THE STATE OF NEW YORK, by ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL OF THE STATE OF NEW YORK,
Intervenor-Plaintiff,
-against-

ORDER 17-CV-480 (CBA)

DONALD J. TRUMP, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CUSTOMS AND BORDER PROTECTION, JOHN KELLY, KEVIN K. MCALEENAN, and JAMES T. MADDEN,
Respondents. ----------------------------------------------------------}{ AMON, United States District Judge:
Petitioners move to enforce their understanding of an oral order of the Honorable Ann
Donnelly, entered on January 28, 2017, directing Respondents to provide to Petitioners' counsel a
list of individuals who were being detained pursuant to the January 27, 2017 E}{ecutive Order of
the President of the United States ("EO"). Respondents oppose the motion. For the reasons set
forth below, the motion is granted in part and denied in part.

BACKGROUND On January 27, 2017, President Donald J. Trump signed an E"ecutive Order entitled "Protecting the Nation from Foreign Terrorist Entry into the United States." On January 28,2017, Petitioners in this case sought and received a stay barring the removal, pursuant to the EO, of "individuals with refugee applications approved by U.S. Citizenship and Immigration Services as
1

Case 1:17-cv-00480-CBA Document 173 Filed 02/21/17 Page 2 of 4 PageID #: 2492
part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States." (Minute Entry dated 1/28/2017.) Incident to granting this stay, Judge Donnelly also ordered Respondents "to provide a list of individuals detained, pursuant to the January 27, 2017 Executive Order, to the petitioner's counsel." (Order dated 1/28/2017.) Judge Donnelly did not make any specific statement concerning the temporal scope of that order.
Petitioners and Respondents have very different positions as to the information required to be produced pursuant to that order. Respondents contend that they have complied with that order by responding under oath that as of February 7, 2017 at 5:00 PM, U.S. Customs and Border Protection is neither detaining nor has it removed any individual from the United States based on the EO. (D.E. # 66, Att. 2.) Petitioners maintain that this response fails to comply with the order and ask that Respondents be compelled to produce a list, updated daily, of "all putative class members who have been held by Respondents at any U.S. airport pursuant to the EO," as well as a daily updated list of all "individuals removed pursuant to the Executive Order since the filing of the motion for class certification," along with additional information identifying the country to which they were removed, the flight they took, and the time of removal. (D.E. #53, Ex. 1.)
DISCUSSION A. Temporal Scope of the Order In the Court's view, neither of the parties accurately interprets Judge Donnelly's order. Respondents' argue that the order requires only a "snapshot" of which putative class members were being held at a certain point in time. That may be true, but the issue is when that snapshot is taken. At the very least, the order requires that the snapshot be taken as of the time of the order, i.e. the evening of January 28, 2017 after Judge Donnelly issued her order and at least through the
2

Case 1:17-cv-00480-CBA Document 173 Filed 02/21/17 Page 3 of 4 PageID #: 2493
following day. The snapshot cannot be taken at the time Respondents choose to take it, ten days later.
Similarly, the order clearly does not compel, as Petitioners argue, Respondents to provide a daily update of individuals detained and/or removed from the date ofthe filing ofthe Petitioners' motion for class certification to the present or the travel itineraries of those removed. Although, if the litigation proceeds, Petitioners may be entitled to such information as a matter of discovery, the order did not require information of that breadth to be produced.
A fair reading of the order is that it requires that Respondents provide a single list of putative class members being held pursuant to the EO at any time from the signing of the order and for a reasonable period thereafter, which would include through the following day.
B. Detention The parties also spar over the meaning of"detention" in the order. Respondents argue that the term should be given its meaning as defined in immigration parlance; namely detained "pending removal" or "at an off-site detention facility," and that it should not include everyone who was merely being processed pursuant to the EO. (D.E. # 68.) First, it should be noted that Respondents do not and have not challenged the oral order of Judge Donnelly. The Court is not being asked to reconsider it or to narrow its scope. The Court construes Judge Donnelly's use of the term "detained" to be in the everyday sense, meaning those being held for questioning pursuant to the terms of the EO, as distinguished from individuals formally placed in removal proceedings. Indeed, under Respondents' definition, it is not clear that even the two named Petitioners were being detained, as there is no indication that either of them were moved off-site or subject to removal proceedings, yet it was their detention that was the subject of the petition.
3

Case 1:17-cv-00480-CBA Document 173 Filed 02/21/17 Page 4 of 4 PageID #: 2494 s/Carol Bagley Amon

 </s> Case 1:17-cv-00480-CBA Document 178 Filed 02/23/17 Page 1 of 3 PageID #: 2576

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

------------------------------------ x

:

HAMEED KHALID DARWEESH, et al.,

:

Petitioners, v.

:
: Civil Action No. 17-cv-480 : CV-17-480 :

DONALD TRUMP, President of the United States, et al.,

: : :

(Amon, J.)

Respondents.

:

:

------------------------------------ x

STATUS REPORT

Respondents hereby file this status report to inform the Court that Respondents

have the list, and that the parties are working through last minute terms of the protective

order.

Dated: February 10, 2017

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General Civil Division

WILLIAM C. PEACHEY Director

GISELA A. WESTWATER Assistant Director

EREZ REUVENI Senior Litigation Counsel

By: s/ Samuel P. Go SAMUEL P. GO Senior Litigation Counsel United States Department of Justice Civil Division

Case 1:17-cv-00480-CBA Document 178 Filed 02/23/17 Page 2 of 3 PageID #: 2577 Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 353-9923 Fax: (202) 305-7000 samuel.go@usdoj.gov STEVEN A. PLATT Trial Attorney Counsel for Respondents
2

Case 1:17-cv-00480-CBA Document 178 Filed 02/23/17 Page 3 of 3 PageID #: 2578 CERTIFICATE OF SERVICE
I hereby certify that on February 23, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Eastern District of New York by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
s/ Samuel P. Go SAMUEL P. GO Senior Litigation Counsel U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section Counsel for Respondents
3

 </s> Case 1:17-cv-00480-CBA Document 180 Filed 02/23/17 Page 1 of 3 PageID #: 2593

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

------------------------------------ x

:

HAMEED KHALID DARWEESH, et al.,

:

Petitioners, v.

:
: Civil Action No. 17-cv-480 : CV-17-480 :

DONALD TRUMP, President of the United States, et al.,

: : :

(Amon, J.)

Respondents.

:

:

------------------------------------ x

STATUS REPORT Respondents hereby file this status report to inform the Court that the parties have agreed to the protective order covering the list containing the names of all individuals encountered and processed at any time from 9:27 PM on January 28, 2017 to 11:59 PM on January 29, 2017 pursuant to the January 27, 2017 Executive Order, including those previously released or removed (“List”), and Respondents have provided the Petitioners the List. Petitioners indicated that they reserve the right to challenge the government’s designation of any information in the List for being overbroad.

Dated: February 23, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director
GISELA A. WESTWATER Assistant Director

Case 1:17-cv-00480-CBA Document 180 Filed 02/23/17 Page 2 of 3 PageID #: 2594
EREZ REUVENI Senior Litigation Counsel By: s/ Samuel P. Go SAMUEL P. GO Senior Litigation Counsel United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 353-9923 Fax: (202) 305-7000 samuel.go@usdoj.gov STEVEN A. PLATT Trial Attorney Counsel for Respondents
2

Case 1:17-cv-00480-CBA Document 180 Filed 02/23/17 Page 3 of 3 PageID #: 2595 CERTIFICATE OF SERVICE
I hereby certify that on February 23, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Eastern District of New York by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
s/ Samuel P. Go SAMUEL P. GO Senior Litigation Counsel U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section Counsel for Respondents
3

 </s> Case 1:17-cv-00480-CBA Document 181 Filed 02/23/17 Page 1 of 11 PageID #: 2596 Case 1:17-cv-00480-CBA Document 179-1 Filed 02/23/17 Page 1 of 11 PageiD #: 2582

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

--------- ---------- ----------------- X

HAMEED KHALID DARWEESH, et al., Petitioners,
v.

~~~~D]ORDERFORTHE
PROTECTION OF CONFIDENTIAL INFORMATION

DONALD TRUMP, President of the United States, et al.,

17-CV-480 (CBA)

R es pondents .

------------------------------------ X

AMON, United States District Judge:

The Court has ordered Respondents to produce, by 5:00pm EST on February 23 , 2017,
a list of all individuals with refugee applications approved by U.S . Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States (i.e. putative class members) who, at any time during the period from 9:37PM on January 28 , 2017 until 11 :59 PM on January 29, 2017, were being held, including being processed, by U.S. Customs and Border Protection pursuant to [Executive Order 13769].
Order at 4 (ECF No. 173).
The parties agree that such disclosure includes, or is likely to include, information that is
protected from disclosure by federal statutes and regulations, including without limitation
personal infonnation covered by the Privacy Act, 5 U.S.C. § 552a, and identifying information
of asylees, or prospective asylees, which are protected from disclosure under 8 C.F.R. § 208.6.
See Phillips v. Immigration & Customs Enj't, 385 F. Supp. 2d 296, 305 (S.D.N.Y. 2005) ("[A]n
asylum application contains personal infom1ation about the applicant and his family, including
his personal history and political views, the release of which not only threatens the individual's

Case 1:17-cv-00480-CBA Document 181 Filed 02/23/17 Page 2 of 11 PageID #: 2597 Case 1:17-cv-00480-CBA Document 179-1 Filed 02/23/17 Page 2 of 11 PageiD #: 2583
privacy, but may very well endanger his life and the safety of other family members."). Special protection from public disclosure and from use for any purpose other than prosecuting this litigation is therefore warranted.
Accordingly, the Court finds good cause to enter this Protective Order under 5 U.S.C. § 552a(b)(ll) and Federal Rule of Civil Procedure 26(c)(l). It is hereby ORDERED that:
I. As used in this Order, the term "the Confidential List" constitutes any and all information and documents that are described in, and that are to be produced in response to, the Court's February 21, 2017, Order (ECF No. 173).
2. The Confidential List must not be used by Petitioners ' counsel or any Permitted Persons (as defined in Paragraph 5) except in accordance with the terms of this Order.
3. Counsel and any Permitted Persons (as defined in Paragraph 5) are permitted to use the Confidential List solely for the purpose of this action and only for the benefit of the Petitioners and the putative class. Counsel and any Permitted Persons must not publish or otherwise disclose the Confidential List to the general public in any form, nor use the Confidential List for any business or commercial purpose, in connection with any other litigation, or for any purpose other than for the purpose of this action. This Order does not preclude Petitioners or Permitted Persons (as defined in Paragraph 5) from disclosing nonpersonal identifying aspects of the Confidential List, such as the fact that the Confidential List exists or the number of individuals on it.
4. This Order will no longer apply where an individual on the Confidential List authorizes Petitioners' counsel or their representatives to share any information subject to the Order about that individual, including but not limited to the individual's name, with the public
2

Case 1:17-cv-00480-CBA Document 181 Filed 02/23/17 Page 3 of 11 PageID #: 2598 Case 1:17-cv-00480-CBA Document 179-1 Filed 02/23/17 Page 3 of 11 PageiD #: 2584
or any third party as deemed appropriate by Petitioners' counsel in the best interests of the individual.
5. Subject to Paragraph 3, the following categories of persons ("Permitted Persons") may be allowed to review the Confidential List:
a. Counsel. Counsel for Petitioners and Respondents- that is, not counsel for any amici or intervenors-and employees and students of such counsel who have responsibility for the action;
b. The Court and its personnel; c. Court reporters and recorders engaged for depositions; d. Contractors. Those persons specifically engaged by Counsel for the limited
purpose of making copies of documents or organizing or processing documents, including outside vendors hired to process electronically stored documents. e. Consultants and Experts. Consultants, investigators, or experts employed by the parties or counsel for the parties to assist in the preparation and trial of this action, including locating individuals on the list and facilitating their safe travel to the U.S. or another third cotmtry, but only after such persons have completed the certification contained in Attachment A, Acknowledgment of Understanding and Agreement to Be Bound; f. Witnesses at depositions. During their depositions, witnesses in this action to whom di closure is reasonably necessary. Witnesses must not retain a copy of documents containing the Confidential List, except witnesses may receive a copy of all exhibits marked at their depositions in connection with review of the transcripts. Pages of transcribed deposition testimony or exhibits to depositions
3

Case 1:17-cv-00480-CBA Document 181 Filed 02/23/17 Page 4 of 11 PageID #: 2599 Case 1:17-cv-00480-CBA Document 179-1 Filed 02/23/17 Page 4 of 11 PageiD #: 2585

that are designated as the Confidential List pursuant to the process set out in this

Order must be separately bound by the court reporter and may not be disclosed to

anyone except as petmitted under this Order.

g. Author or recipient. The author or recipient of the document (not including a

person who received the document in the course of litigation);

h. Others by Consent. Other persons or categories of persons only by written

consent of the producing party, but only after such persons have completed the

certification contained in Attachment A, Acknowledgment of Understanding and

Agreement to Be Bound; and

1. Other persons upon order of the Court.

6.

Prior to disclosure of any the Confidential List to any Permitted Persons, counsel

must infmm such Permitted Persons of the terms of this Order, confirm each Permitted Persons'

understanding of the terms of this Order, and require such Permitted Persons to execute a copy

of the attached acknowledgement form, which includes a certification and agreement to be

bound by the terms of this Order. Counsel must maintain copies of the acknowledgment forms on file , and will make such forms available: (a) to the Court at its request, and (b) to

Respondents in the event of a loss or suspected loss of the Confidential List or at Respondents'

request if Respondents have demonstrated good cause to believe that any individual who received the Confidential List has not adhered to the terms of this Order. No person to whom

the Confidential List has been disclosed may, in turn, disclose the Confidential List other than

pursuant to the terms of this Order.

7.

The parties agree that all documents filed in this matter which disclose, contain,

or attach the Confidential List must be filed electronically under seal via ECF. In connection

4

Case 1:17-cv-00480-CBA Document 181 Filed 02/23/17 Page 5 of 11 PageID #: 2600 Case 1:17-cv-00480-CBA Document 179-1 Filed 02/23/17 Page 5 of 11 PageiD #: 2586
with any such documents and testimony filed by Petitioners, Petitioners' counsel must, within a reasonable period of time after filing and serving upon Respondents any such sealed document or testimony, serve upon Respondents, but not file, a proposed unsealed version of each such document with the Confidential List redacted. Respondents will either approve or oppose for filing in the public record the Petitioners' proposed unsealed version of each such document. If Respondents approve the proposed unsealed version of each such document, it will notify Petitioners' counsel of such approval in writing within seven days of the original filing of the sealed version of such document, and Petitioners' counsel will file such unsealed version electronically with all the Confidential List redacted pursuant to Respondents ' approval. If Respondents fails to approve the proposed unsealed version within seven days of the filing of the sealed version of such filed document, Respondents will be deemed to have opposed such unsealed version; in such instances, the parties agree to meet and confer in good faith regarding the redactions that should be made to the unsealed, publically-accessible version of each such document. Petitioners must not file any version of a document proposed by Petitioners' counsel for public filing pursuant to this paragraph but not approved for public filing by Respondents; Petitioners retain the right to challenge before the Court any decision by Respondents not to approve a document proposed by Petitioners' counsel for public filing pursuant to this paragraph.
8. The parties further agree that at any trial of this action and in any hearing in this action before any judicial officer, subject to the Federal Rules of Evidence and any order of the Court, a party may use any the Confidential List for any purpose, provided that reasonable prior notice of such use is given to counsel for Respondents, to permit Respondents the opportunity to obtain appropriate protection from the Court, including a request to the Court that the courtroom
5

Case 1:17-cv-00480-CBA Document 181 Filed 02/23/17 Page 6 of 11 PageID #: 2601 Case 1:17-cv-00480-CBA Document 179-1 Filed 02/23/17 Page 6 of 11 PageiD #: 2587
be cleared of any persons not subject to the Order and that the Court employees be advised as to the terms of this Order.
9. Within sixty days after the final termination of this litigation by settlement or exhaustion of all appeals, all copies of the Confidential List produced or designated must either be returned to Respondents or must be destroyed, at the option of Petitioners' counsel. In the event that Petitioners' counsel choose to destroy documents or other media containing the Confidential List, Petitioners' counsel must certify in writing to Respondents that such documents or other media have been destroyed no later than ten days after such destruction. Records certified to have been destroyed must have been disposed of by burning, pulping, shredding, or other suitable means that ensures the information in the documents or other media is definitively destroyed. Definitively destroying means the material cannot be reassembled and used. Electronic records must be definitively destroyed in a similar manner that prevents reconstruction as well. This provision applies to Petitioners, their counsel, Petitioners' counsel's employees, and consultants or expert witnesses who have access to the Confidential List during the litigation.
10. When counsel or any Permitted Person becomes aware of the possible or suspected loss of the Confidential List, he or she must provide immediate same-day notification of the incident to counsel for Respondents . Examples of incidents indicating the possible or suspected loss of the Confidential List include but are not limited to missing equipment (including laptops, and removable storage devices such as USB flash or "thumb" drives, CDs, DVDs, etc.) and paper or electronic documents potentially containing the Confidential List. The party must provide updates as they become available, but must not delay the initial report.
6

Case 1:17-cv-00480-CBA Document 181 Filed 02/23/17 Page 7 of 11 PageID #: 2602 Case 1:17-cv-00480-CBA Document 179-1 Filed 02/23/17 Page 7 of 11 PageiD #: 2588

The party must provide complete and accurate information about the details of the possible loss. The party must include the fo llowing information:

a.

Contact information;

b. A description of the loss or suspected loss (i.e., nature of loss, ·scope, number of files or records, type of equipment or media, etc.) including the approximate time and location;

c.

What safeguards were used, where applicable (e.g. , locked briefcase,

password protected, encrypted, etc.);

d.

Whether any external organizations (i .e. law enforcement, press) have

been contacted or contacted the party;

e. Whether any other reports have been filed (i.e. , local police); and

f.

Any other pertinent information.

The party must limit disclosure of the fact that a loss occurred only to those who need to know.

11. For knowingly disclosing the Confidential List, an individual may be subject to

appropriate sanctions.

12. This Order is without prejudice to the rights of Respondents to move to dismiss this action prior to the commencement of discovery, to move to stay discovery, and to move to preclude or limit discovery. This Order is without prejudice to the rights of Respondents to apply to the Court for a further protective order relating to the Confidential List or to make any discovery objections permitted by the Federal Rules of Civil Procedure, or any statute or other authority.

13 . This Order does not waive any privileges or defenses that either Petitioners or Respondents have regarding th e production of the requested information; thus, this Stipulation cannot be used as evidence of a waiver of any production objection, including but not limited to, relevance, undue burden, over breadth, ambiguity or that the infonnation sought will not lead to the discovery of admissible evidence, or of any privilege, including but not limited to, the

7

Case 1:17-cv-00480-CBA Document 181 Filed 02/23/17 Page 8 of 11 PageID #: 2603 Case 1:17-cv-00480-CBA Document 179-1 Filed 02/23/17 Page 8 of 11 PageiD #: 2589

attorney-client privilege, the attorney work product privilege, and the deliberative process privilege.

SO ORDERED.
Dated: February ~j , 2017
Brooklyn, New York

~~s;tJbhL
United States District Judge

8

Case 1:17-cv-00480-CBA Document 181 Filed 02/23/17 Page 9 of 11 PageID #: 2604 Case 1:17-cv-00480-CBA Document 179-1 Filed 02/23/17 Page 9 of 11 PageiD #: 2590

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

------------------------------------ X

HAMEED KHALID DARWEESH, et al.,

Petitioners, v.

Civil Action No. 17-CV-480 (CBA)

DONALD TRUMP, President of the United States, et a!.,

Respondents .

------------------------------------ X

ACKNOWLEDGMENT OF UNDERSTANDING AND AGREEMENT TO BE BOUND [The parties shall work out the language of the Acknowledgment after the government
files the proposed order.]
I, _ _ __ _ _ _ _ _ _, hereby acknowledge that I have read and understand the Order for the Protection of Confidential Information ("Order") entered in this action. I hereby agree to be bound by the tenns of the Stipulation and Order. Specifically,
1. I agree that I will use records and infom1ation protected by the Order only for purposes of this litigation, including any appeals, and not for any other purpose of any kind;
2. I agree that records and information, and all copies thereof protected by the Order (including but not limited to electronic copies), may not be removed from, or reviewed outside of, a secure location, except to the extent the records and information are (a) sent to the Court for filing, (b) sent to the expert witness(es) or litigation consultant(s) retained or hired by Petitioner, or (c) returned to Respondents or Respondents' counsel;

9

Case 1:17-cv-00480-CBA Document 181 Filed 02/23/17 Page 10 of 11 PageID #: 2605 Case 1:17-cv-00480-CBA Document 179-1 Filed 02/23/17 Page 10 of 11 PageiD #: 2591
3. I agree that records and information, and all copies thereof protected by the Order (including but not limited to electronic copies), must be returned to Petitioners' counsel within 30 days after the termination of this litigation, and I agree not to further use the records and information for any purpose. I further agree that any documents created by Petitioners, their counsel, Petitioners' counsel's employees, consultants or expert witnesses containing the Confidential List also will be returned by me to Petitioners' counsel within thirty days after the termination of the litigation. I understand that Petitioners' counsel must dete1mine whether the documents or other media must be returned to Respondents or destroyed and that, if destroyed, Petitioners' counsel must certify in writing to Respondents' counsel that such documents or other media have been destroyed;
4. I agree that, subject to the restrictions in the Order and this Acknowledgement of Understanding and Agreement to Be Bound, I may disclose records and information protected by the Order only to the Comi, the parties' attorneys of record, persons regularly in the employ of such attorneys, and any experts or consultants hired for this case by the Petitioners or their attorneys and who (except the Court) have signed an acknowledgment like this one and have a need for such information to perform duties specifically related to the conduct of this litigation;
5. Should I wish to disclose the records that are subject to the Order to any additional persons except those indicated in the Order and herein, I will first seek the Respondents' consent;
6. I agree that those portions of any filings with the Court which contain records or information protected by the Order must be filed under seal;
7. I hereby confirm that my duties under this Acknowledgment must survive the termination of this case and are binding upon me for all time; and
10

Case 1:17-cv-00480-CBA Document 181 Filed 02/23/17 Page 11 of 11 PageID #: 2606 Case 1:17-cv-00480-CBA Document 179-1 Filed 02/23/17 Page 11 of 11 PageiD #: 2592
8. I hereby consent to the personal jurisdiction of the United States District Court for the Eastern District of New York in the above-captioned case for the purpose of enforcing the aforementioned Order.
[signature] [print name] Dated: _ _ _ _ _ _ _ _ _ _ _ __
II

 </s> Case 1:17-cv-00480-CBA Document 188 Filed 03/06/17 Page 1 of 4 PageID #: 2646

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

------------------------------------ x

:

HAMEED KHALID DARWEESH, et al.,

:

Petitioners, v.

:
: Civil Action No. : CV-17-480 :

DONALD TRUMP, President of the United States, et al.,

: : :

(Amon, J.)

Respondents.

:

:

------------------------------------ x

NOTICE TO THE COURT Undersigned counsel write to update this Court of significant developments with Executive Order 13,769 (the “Old EO”), the subject of this litigation. Earlier today, the President signed an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“New EO,” attached as Exhibit A).1 The New EO, by its terms, will not take effect until March 16, 2017. See New EO § 14. As of that date, the New EO revokes the Old EO and sets forth new policies that are substantially different in form and scope than the policies articulated by the Old EO, which was subject to this Court’s temporary restraining order entered January 28, 2017. (ECF No. 8.) Relevant to the issues before the Court, the New EO: (i) suspends entry for 90 days of

1 Based on the Government’s representation to the Ninth Circuit that this New EO was forthcoming, the Ninth Circuit stayed en banc proceedings in Washington v. Trump, Case No. 1735105 (9th Cir. Feb. 16, 2017). As of this filing, the Ninth Circuit has not yet issued a decision with respect to its call for en banc briefing from the parties, although the motions panel has issued a briefing schedule on the merits of the nationwide preliminary injunction issued by the district court enjoining enforcement of Sections 3(a), 5(a), (b), (c), and (e) of the Old EO. See Washington v. Trump, No. 17-cv-141, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017).
1

Case 1:17-cv-00480-CBA Document 188 Filed 03/06/17 Page 2 of 4 PageID #: 2647
certain foreign nationals from six of the seven countries2 designated in the Old EO who do not hold valid visas; (ii) creates a case-by-case waiver process for those foreign nationals that is integrated into the visa application and admission process; (iii) creates a 120-day pause of certain aspects of the U.S. Refugee Admissions Program, which does not apply to refugee applicants who already have been formally scheduled for transit, and also allows for case-by-case waivers; and (iv) contains explanations in support of the newly promulgated policy.
The suspension of entry provisions now apply to nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen who are outside the United States on the New EO’s effective date of March 16, 2017, do not have a valid visa on that date, and did not have a valid visa as of 5:00 p.m. Eastern Standard Time on January 27, 2017. See New EO § 3(a). The New EO specifically excludes from its coverage, among other classes of individuals:
• lawful permanent residents; • any foreign national admitted to or paroled into the United States on or after the
New EO’s effective date; • any individual who has a document other than a visa, valid on the effective date of
the New EO or issued anytime thereafter, that permits the individual to travel to the United States and seek entry or admission, such as advance parole; • any dual national traveling on a passport not issued by one of the six designated countries; • any foreign national traveling on diplomatic, diplomatic-type, or other specified visas; and • any foreign national who has been granted asylum, any refugee already admitted to
2 The suspension of entry no longer applies to nationals of Iraq. See New EO § 1(g). 2

Case 1:17-cv-00480-CBA Document 188 Filed 03/06/17 Page 3 of 4 PageID #: 2648

the United States, or any individual granted withholding of removal, advance parole, or protection under the Convention Against Torture. See id. § 3(b). As previously agreed, Respondents will meet and confer with Petitioners and Intervenor concerning how to proceed in the current case and will file a joint proposed scheduling order no later than March 13, 2017.

Dated: March 6, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General Civil Division
WILLIAM C. PEACHEY Director, Office of Immigration Litigation District Court Section
GISELA A. WESTWATER Assistant Director, District Court Section
EREZ REUVENI Senior Litigation Counsel
JOSHUA S. PRESS Trial Attorney
By: s/ Steven A. Platt STEVEN A. PLATT Trial Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 532-4074 Fax: (202) 305-7000 steven.a.platt@usdoj.gov
Counsel for Respondents

3

Case 1:17-cv-00480-CBA Document 188 Filed 03/06/17 Page 4 of 4 PageID #: 2649 CERTIFICATE OF SERVICE
I hereby certify that on March 6, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Eastern District of New York by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
s/ Steven A. Platt STEVEN A. PLATT Trial Attorney U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section Counsel for Respondents
4

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 1 of 20 PageID #: 2650
EXHIBIT A

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 2 of 20 PageID #: 2651

THE WHITE HOUSE Office of the Press Secretary

For Immediate Release

March 6, 2017

EXECUTIVE ORDER
- - - - - - -
PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the Nation from terrorist activities by foreign nationals admitted to the United States, it is hereby ordered as follows:
Section 1. Policy and Purpose. (a) It is the policy of the United States to protect its citizens from terrorist attacks, including those committed by foreign nationals. The screening and vetting protocols and procedures associated with the visa-issuance process and the United States Refugee Admissions Program (USRAP) play a crucial role in detecting foreign nationals who may commit, aid, or support acts of terrorism and in preventing those individuals from entering the United States. It is therefore the policy of the United States to improve the screening and vetting protocols and procedures associated with the visa-issuance process and the USRAP.
(b) On January 27, 2017, to implement this policy, I issued Executive Order 13769 (Protecting the Nation from Foreign Terrorist Entry into the United States).
(i) Among other actions, Executive Order 13769 suspended for 90 days the entry of certain aliens from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. These are countries that had already been identified as presenting heightened

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 3 of 20 PageID #: 2652
2
concerns about terrorism and travel to the United States. Specifically, the suspension applied to countries referred to in, or designated under, section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), in which Congress restricted use of the Visa Waiver Program for nationals of, and aliens recently present in, (A) Iraq or Syria, (B) any country designated by the Secretary of State as a state sponsor of terrorism (currently Iran, Syria, and Sudan), and (C) any other country designated as a country of concern by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence. In 2016, the Secretary of Homeland Security designated Libya, Somalia, and Yemen as additional countries of concern for travel purposes, based on consideration of three statutory factors related to terrorism and national security: "(I) whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States; (II) whether a foreign terrorist organization has a significant presence in the country or area; and (III) whether the country or area is a safe haven for terrorists." 8 U.S.C. 1187(a)(12)(D)(ii). Additionally, Members of Congress have expressed concerns about screening and vetting procedures following recent terrorist attacks in this country and in Europe.
(ii) In ordering the temporary suspension of entry described in subsection (b)(i) of this section, I exercised my authority under Article II of the Constitution and under section 212(f) of the INA, which provides in relevant part: "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). Under these authorities, I determined that, for a brief period of 90 days, while existing screening and vetting procedures were under review, the entry into

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 4 of 20 PageID #: 2653
3
the United States of certain aliens from the seven identified countries -- each afflicted by terrorism in a manner that compromised the ability of the United States to rely on normal decision-making procedures about travel to the United States -- would be detrimental to the interests of the United States. Nonetheless, I permitted the Secretary of State and the Secretary of Homeland Security to grant case-bycase waivers when they determined that it was in the national interest to do so.
(iii) Executive Order 13769 also suspended the USRAP for 120 days. Terrorist groups have sought to infiltrate several nations through refugee programs. Accordingly, I temporarily suspended the USRAP pending a review of our procedures for screening and vetting refugees. Nonetheless, I permitted the Secretary of State and the Secretary of Homeland Security to jointly grant case-by-case waivers when they determined that it was in the national interest to do so.
(iv) Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the USRAP in light of their particular challenges and circumstances.
(c) The implementation of Executive Order 13769 has been delayed by litigation. Most significantly, enforcement of critical provisions of that order has been temporarily halted by court orders that apply nationwide and extend even to foreign nationals with no prior or substantial connection to the United States. On February 9, 2017, the United States Court of Appeals for the Ninth Circuit declined to stay or narrow one such order pending the outcome of further judicial proceedings, while noting that the "political branches are far better

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 5 of 20 PageID #: 2654
4
equipped to make appropriate distinctions" about who should be covered by a suspension of entry or of refugee admissions.
(d) Nationals from the countries previously identified under section 217(a)(12) of the INA warrant additional scrutiny in connection with our immigration policies because the conditions in these countries present heightened threats. Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government's willingness or ability to share or validate important information about individuals seeking to travel to the United States. Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States. Finally, once foreign nationals from these countries are admitted to the United States, it is often difficult to remove them, because many of these countries typically delay issuing, or refuse to issue, travel documents.
(e) The following are brief descriptions, taken in part from the Department of State's Country Reports on Terrorism 2015 (June 2016), of some of the conditions in six of the previously designated countries that demonstrate why their nationals continue to present heightened risks to the security of the United States:
(i) Iran. Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq. Iran has also been linked to support for al-Qa'ida and has permitted al-Qa'ida to transport funds and fighters through Iran to Syria and South Asia. Iran does not cooperate with the United States in counterterrorism efforts.
(ii) Libya. Libya is an active combat zone, with hostilities between the internationally recognized government and its rivals. In many parts of the country, security and law enforcement functions are provided by armed militias rather than state institutions. Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 6 of 20 PageID #: 2655
5
exploited these conditions to expand their presence in the country. The Libyan government provides some cooperation with the United States' counterterrorism efforts, but it is unable to secure thousands of miles of its land and maritime borders, enabling the illicit flow of weapons, migrants, and foreign terrorist fighters. The United States Embassy in Libya suspended its operations in 2014.
(iii) Somalia. Portions of Somalia have been terrorist safe havens. Al-Shabaab, an al-Qa'idaaffiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries. Somalia has porous borders, and most countries do not recognize Somali identity documents. The Somali government cooperates with the United States in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists.
(iv) Sudan. Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas. Historically, Sudan provided safe havens for al-Qa'ida and other terrorist groups to meet and train. Although Sudan's support to alQa'ida has ceased and it provides some cooperation with the United States' counterterrorism efforts, elements of core al-Qa'ida and ISIS-linked terrorist groups remain active in the country.
(v) Syria. Syria has been designated as a state sponsor of terrorism since 1979. The Syrian government is engaged in an ongoing military conflict against ISIS and others for control of portions of the country. At the same time, Syria continues to support other terrorist groups. It has allowed or encouraged extremists to pass through its territory to enter Iraq. ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe, including in the United States. The United States Embassy in Syria suspended its operations in 2012. Syria does not

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 7 of 20 PageID #: 2656
6
cooperate with the United States' counterterrorism efforts.
(vi) Yemen. Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition. Both ISIS and a second group, al-Qa'ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks. Weapons and other materials smuggled across Yemen's porous borders are used to finance AQAP and other terrorist activities. In 2015, the United States Embassy in Yemen suspended its operations, and embassy staff were relocated out of the country. Yemen has been supportive of, but has not been able to cooperate fully with, the United States in counterterrorism efforts.
(f) In light of the conditions in these six countries, until the assessment of current screening and vetting procedures required by section 2 of this order is completed, the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high. Accordingly, while that assessment is ongoing, I am imposing a temporary pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to categorical exceptions and case-by-case waivers, as described in section 3 of this order.
(g) Iraq presents a special case. Portions of Iraq remain active combat zones. Since 2014, ISIS has had dominant influence over significant territory in northern and central Iraq. Although that influence has been significantly reduced due to the efforts and sacrifices of the Iraqi government and armed forces, working along with a United States-led coalition, the ongoing conflict has impacted the Iraqi government's capacity to secure its borders and to identify fraudulent travel documents. Nevertheless, the close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq's commitment to combat ISIS justify different treatment for Iraq. In particular, those Iraqi government forces that have fought to regain more than half of the territory previously

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 8 of 20 PageID #: 2657
7
dominated by ISIS have shown steadfast determination and earned enduring respect as they battle an armed group that is the common enemy of Iraq and the United States. In addition, since Executive Order 13769 was issued, the Iraqi government has expressly undertaken steps to enhance travel documentation, information sharing, and the return of Iraqi nationals subject to final orders of removal. Decisions about issuance of visas or granting admission to Iraqi nationals should be subjected to additional scrutiny to determine if applicants have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.
(h) Recent history shows that some of those who have entered the United States through our immigration system have proved to be threats to our national security. Since 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States. They have included not just persons who came here legally on visas but also individuals who first entered the country as refugees. For example, in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses. And in October 2014, a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction as part of a plot to detonate a bomb at a crowded Christmas-treelighting ceremony in Portland, Oregon. The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.
(i) Given the foregoing, the entry into the United States of foreign nationals who may commit, aid, or support acts of terrorism remains a matter of grave concern. In light of the Ninth Circuit's observation that the political branches are better suited to determine the appropriate scope of any suspensions than are the courts, and in order to avoid spending additional time pursuing litigation, I am revoking Executive Order 13769 and replacing it with this order, which expressly excludes from the suspensions categories of aliens that have prompted judicial concerns and which clarifies or refines the approach to certain other issues or categories of affected aliens.

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 9 of 20 PageID #: 2658
8
Sec. 2. Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review 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 (adjudications) in order to determine that the individual is not a security or public-safety threat. The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the worldwide review described in subsection (a) of this section, including the Secretary of Homeland Security's determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State, the Attorney General, and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States. I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 10 of 20 PageID #: 2659
9
(d) Upon submission of the report described in subsection (b) of this section regarding the information needed from each country for adjudications, the Secretary of State shall request that all foreign governments that do not supply such information regarding their nationals begin providing it within 50 days of notification.
(e) After the period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means. The Secretary of State, the Attorney General, or the Secretary of Homeland Security may also submit to the President the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States.
(f) At any point after the submission of the list described in subsection (e) of this section, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, may submit to the President the names of any additional countries recommended for similar treatment, as well as the names of any countries that they recommend should be removed from the scope of a proclamation described in subsection (e) of this section.
(g) The Secretary of State and the Secretary of Homeland Security shall submit to the President a joint report on the progress in implementing this order within 60 days of the effective date of this order, a second report within 90 days of the effective date of this order, a third report within 120 days of the effective date of this order, and a fourth report within 150 days of the effective date of this order.
Sec. 3. Scope and Implementation of Suspension.
(a) Scope. Subject to the exceptions set forth in subsection (b) of this section and any waiver under subsection (c) of this section, the suspension of entry pursuant

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 11 of 20 PageID #: 2660
10
to section 2 of this order shall apply only to foreign nationals of the designated countries who:
(i) are outside the United States on the effective date of this order;
(ii) did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and
(iii) do not have a valid visa on the effective date of this order.
(b) Exceptions. The suspension of entry pursuant to section 2 of this order shall not apply to:
(i) any lawful permanent resident of the United States;
(ii) any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;
(iii) any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;
(iv) any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country;
(v) any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or
(vi) any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 12 of 20 PageID #: 2661

11

(c) Waivers. Notwithstanding the suspension of entry pursuant to section 2 of this order, a consular officer, or, as appropriate, the Commissioner, U.S. Customs and Border Protection (CBP), or the Commissioner's delegee, may, in the consular officer's or the CBP official's discretion, decide on a case-by-case basis to authorize the issuance of a visa to, or to permit the entry of, a foreign national for whom entry is otherwise suspended if the foreign national has demonstrated to the officer's satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest. Unless otherwise specified by the Secretary of Homeland Security, any waiver issued by a consular officer as part of the visa issuance process will be effective both for the issuance of a visa and any subsequent entry on that visa, but will leave all other requirements for admission or entry unchanged. Case-by-case waivers could be appropriate in circumstances such as the following:

(i)

the foreign national has previously been

admitted to the United States for a continuous period

of work, study, or other long-term activity, is

outside the United States on the effective date of

this order, seeks to reenter the United States to

resume that activity, and the denial of reentry during

the suspension period would impair that activity;

(ii) the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity;

(iii) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;

(iv) the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 13 of 20 PageID #: 2662

12

(v)

the foreign national is an infant, a young

child or adoptee, an individual needing urgent medical

care, or someone whose entry is otherwise justified by

the special circumstances of the case;

(vi) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government;

(vii) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;

(viii) the foreign national is a landed Canadian immigrant who applies for a visa at a location within Canada; or

(ix) the foreign national is traveling as a United States Government-sponsored exchange visitor.

Sec. 4. Additional Inquiries Related to Nationals of Iraq. An application by any Iraqi national for a visa, admission, or other immigration benefit should be subjected to thorough review, including, as appropriate, consultation with a designee of the Secretary of Defense and use of the additional information that has been obtained in the context of the close U.S.-Iraqi security partnership, since Executive Order 13769 was issued, concerning individuals suspected of ties to ISIS or other terrorist organizations and individuals coming from territories controlled or formerly controlled by ISIS. Such review shall include consideration of whether the applicant has connections with ISIS or other terrorist organizations or with territory that is or has been under the dominant influence of ISIS, as well as any other information bearing on whether the applicant may be a threat to commit acts of terrorism or

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 14 of 20 PageID #: 2663
13
otherwise threaten the national security or public safety of the United States.
Sec. 5. Implementing Uniform Screening and Vetting Standards for All Immigration Programs. (a) The Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence shall implement a program, as part of the process for adjudications, to identify individuals who seek to enter the United States on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group or class of people within the United States, or who present a risk of causing harm subsequent to their entry. This program shall include the development of a uniform baseline for screening and vetting standards and procedures, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that applicants are who they claim to be; a mechanism to assess whether applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United States; and any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility or grounds for the denial of other immigration benefits.
(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Attorney General, and the Director of National Intelligence, shall submit to the President an initial report on the progress of the program described in subsection (a) of this section within 60 days of the effective date of this order, a second report within 100 days of the effective date of this order, and a third report within 200 days of the effective date of this order.
Sec. 6. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend travel of refugees into the United States under the USRAP, and the Secretary of Homeland Security shall suspend decisions on applications for refugee status, for 120 days after the effective date of this order, subject to waivers pursuant to subsection (c) of this section. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 15 of 20 PageID #: 2664
14
National Intelligence, shall review the USRAP application and adjudication processes to determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. The suspension described in this subsection shall not apply to refugee applicants who, before the effective date of this order, have been formally scheduled for transit by the Department of State. The Secretary of State shall resume travel of refugees into the United States under the USRAP 120 days after the effective date of this order, and the Secretary of Homeland Security shall resume making decisions on applications for refugee status only for stateless persons and nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that the additional procedures implemented pursuant to this subsection are adequate to ensure the security and welfare of the United States.
(b) Pursuant to section 212(f) of the INA, I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any entries in excess of that number until such time as I determine that additional entries would be in the national interest.
(c) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretary of State and the Secretary of Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such individuals as refugees is in the national interest and does not pose a threat to the security or welfare of the United States, including in circumstances such as the following: the individual's entry would enable the United States to conform its conduct to a preexisting international agreement or arrangement, or the denial of entry would cause undue hardship.
(d) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of State shall examine existing law to

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 16 of 20 PageID #: 2665
15
determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.
Sec. 7. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretary of State and the Secretary of Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority permitted by section 212(d)(3)(B) of the INA, 8 U.S.C. 1182(d)(3)(B), relating to the terrorism grounds of inadmissibility, as well as any related implementing directives or guidance.
Sec. 8. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for in-scope travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.
(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive set forth in subsection (a) of this section. The initial report shall be submitted within 100 days of the effective date of this order, a second report shall be submitted within 200 days of the effective date of this order, and a third report shall be submitted within 365 days of the effective date of this order. The Secretary of Homeland Security shall submit further reports every 180 days thereafter until the system is fully deployed and operational.
Sec. 9. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions. This suspension shall not apply to any foreign national traveling on a diplomatic or diplomatictype visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; traveling for purposes related to an international organization designated under the IOIA; or traveling for purposes of

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 17 of 20 PageID #: 2666
16
conducting meetings or business with the United States Government.
(b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that nonimmigrant visa-interview wait times are not unduly affected.
Sec. 10. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements and arrangements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If another country does not treat United States nationals seeking nonimmigrant visas in a truly reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by that foreign country, to the extent practicable.
Sec. 11. Transparency and Data Collection. (a) To be more transparent with the American people and to implement more effectively policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available the following information:
(i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation with or provision of material support to a terrorism-related organization, or any other national-security-related reasons;

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 18 of 20 PageID #: 2667
17
(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and who have engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States;
(iii) information regarding the number and types of acts of gender-based violence against women, including so-called "honor killings," in the United States by foreign nationals; and
(iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security or the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.
(b) The Secretary of Homeland Security shall release the initial report under subsection (a) of this section within 180 days of the effective date of this order and shall include information for the period from September 11, 2001, until the date of the initial report. Subsequent reports shall be issued every 180 days thereafter and reflect the period since the previous report.
Sec. 12. Enforcement. (a) The Secretary of State and the Secretary of Homeland Security shall consult with appropriate domestic and international partners, including countries and organizations, to ensure efficient, effective, and appropriate implementation of the actions directed in this order.
(b) In implementing this order, the Secretary of State and the Secretary of Homeland Security shall comply with all applicable laws and regulations, including, as appropriate, those providing an opportunity for individuals to claim a fear of persecution or torture, such as the credible fear determination for aliens covered by section 235(b)(1)(A) of the INA, 8 U.S.C. 1225(b)(1)(A).
(c) No immigrant or nonimmigrant visa issued before the effective date of this order shall be revoked pursuant to this order.

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 19 of 20 PageID #: 2668
18
(d) Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry. Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.
(e) This order shall not apply to an individual who has been granted asylum, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture. Nothing in this order shall be construed to limit the ability of an individual to seek asylum, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.
Sec. 13. Revocation. Executive Order 13769 of January 27, 2017, is revoked as of the effective date of this order.
Sec. 14. Effective Date. This order is effective at 12:01 a.m., eastern daylight time on March 16, 2017.
Sec. 15. Severability. (a) If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other persons or circumstances shall not be affected thereby.
(b) If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements.
Sec. 16. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

Case 1:17-cv-00480-CBA Document 188-1 Filed 03/06/17 Page 20 of 20 PageID #: 2669
19 (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP
THE WHITE HOUSE, March 6, 2017.
# # #

 </s> Case 1:17-cv-00480-CBA Document 189 Filed 03/09/17 Page 1 of 1 PageID #: 2670

ERIC T. SCHNEIDERMAN ATTORNEY GENERAL

STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL
DIVISION OF SOCIAL JUSTICE CIVIL RIGHTS BUREAU
LOURDES M. ROSADO, BUREAU CHIEF
March 9, 2017

VIA ECF & HAND DELIVERY
The Honorable Carol Bagley Amon United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201
Re: Darweesh et. al v. Trump et. al, 17-cv-00480 (CBA)
Dear Judge Amon:
In light of the new Executive Order of March 6, 2017, the New York State Office of the Attorney General has decided not to pursue this litigation and will not be filing the proposed Complaint in Intervention dated February 2, 2017.
We are confident that petitioners can continue to ably represent the interests of individuals who were prevented from entering the United States as a result of the Executive Order of January 27, 2017, and may be continuing to suffer harm from that denial of entry.

Respectfully submitted, /s/ Lourdes M. Rosado Lourdes M. Rosado Civil Rights Bureau Chief New York State Office of the Attorney General
cc: Counsel for all parties and DOJ (by ECF and/or email)

120 BROADWAY, NEW YORK, NY 10271 ● PHONE (212) 416-6348● FAX (212) 416-6030 ● WWW.AG.NY.GOV● CIVIL.RIGHTS@AG.NY.GOV

 </s> Case 1:17-cv-00480-CBA Document 190 Filed 03/13/17 Page 1 of 1 PageID #: 2671

U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section
P.O. Box 868, Ben Franklin Station Washington, D.C. 20044
Via ECF
March 13, 2017
The Hon. Carol Bagley Amon United States District Court for the Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201
Re: Darweesh, et al. v. Trump, et al., 17-CV-480 (CBA)
Dear Judge Amon,
The parties promised the Court that within seven days after the President issued a new Executive Order, they would file a jointly proposed briefing schedule. (ECF No. 169). The President signed the new Executive Order on March 6, 2017, making the proposed briefing schedule due March 13.
After conferring, the parties believe that they may be able to resolve this case without further litigation. Therefore, they respectfully request that the Court stay this case for fourteen days, until March 27, 2017. At that time, the parties propose filing a status report suggesting how to proceed.
Respectfully submitted,

/s/ Lee Gelernt American Civil Liberties Union Counsel for Petitioners

/s/ Steven A. Platt Steven A. Platt U.S. Department of Justice, Civil Division Office of Immigration Litigation Counsel for Respondents

 </s> Case 1:17-cv-00480-CBA Document 194 Filed 03/27/17 Page 1 of 1 PageID #: 2676

U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section
P.O. Box 868, Ben Franklin Station Washington, D.C. 20044
Via ECF
March 27, 2017
The Hon. Carol Bagley Amon United States District Court for the Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201
Re: Darweesh, et al. v. Trump, et al., 17-CV-480 (CBA)
Dear Judge Amon,
The parties previously informed the Court that they are discussing settlement options (ECF No. 190). The Court thus stayed the case until March 27, 2017 (ECF No. 191).
Since then, the parties have held further discussions and continue to believe that a settlement may be possible. Under Local Rule 7.1(d), the parties respectfully request that the Court stay this case for an additional twenty-one days, until April 17, 2017. At that time, the parties would file another status report suggesting how to proceed.

/s/ Lee Gelernt Lee Gelernt American Civil Liberties Union Counsel for Petitioners

Respectfully submitted,
/s/ Steven A. Platt Steven A. Platt U.S. Department of Justice, Civil Division Office of Immigration Litigation Counsel for Respondents

 </s> Case 1:17-cv-00480-CBA Document 195 Filed 03/28/17 Page 1 of 1 PageiD #: 2677

Via ECF March 27,2017

U.S. Department of Justice

Civil Division

Office of Immigration Litigation

District Court Section

FILI!D INC\.&RK'& OFF~e
U.l . DtSTRtCf C<AA'T e .D.N.Y.

P.0 . Box 868, Ben Franklin Station Washington, D.C. 20044

* * MAR 28 2017

BROOKLYN OFFICE

The Hon. Carol Bagley Amon United States District Court for the Eastern District ofNew York 225 Cadman Plaza East Brooklyn, NY 11201
Re: Dan~eesh, eta/. v. Trump, et al., 17-CV-480 (CBA)

A
s/Carol Bagley Amon

Dear Judge Amon,
The parties previously informed the Court that they are discussing settlement options (ECF No. 190). The Court thus stayed the case until March 27,2017 (ECF No. 191).
Since then, the parties have held further discussions and continue to believe that a settlement may be possible. Under Local Rule 7.1 (d), the parties respectfully request that the Court stay this case for an additional twenty-one days, until April 17, 2017. At that time, the parties would file another status report suggesting how to proceed.

lsi Lee Gelemt Lee Gelemt American Civil Liberties Union Counsel for Petitioners

Respectfully submitted,
lsi Steven A. Platt Steven A. Platt U.S. Department ofJustice~ Civil Division Office of Immigration Litigation Counsel for Respondents

 </s> Case 1:17-cv-00480-CBA Document 196 Filed 04/17/17 Page 1 of 1 PageID #: 2678

U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section
P.O. Box 868, Ben Franklin Station Washington, D.C. 20044
Via ECF
April 17, 2017
The Hon. Carol Bagley Amon United States District Court for the Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201
Re: Darweesh, et al. v. Trump, et al., 17-CV-480 (CBA)
Dear Judge Amon,
The parties previously informed the Court that they are discussing settlement options (ECF No. 194). The Court thus stayed the case until April 17, 2017 (ECF No. 195).
Since then, the parties have held further discussions and have begun exchanging draft settlement agreements. The parties continue to believe that a settlement may be possible. Under Local Rule 7.1(d), the parties therefore respectfully request that the Court stay this case for an additional fourteen days, until May 1, 2017. At that time, the parties would file another status report suggesting how to proceed.

/s/ Lee Gelernt Lee Gelernt American Civil Liberties Union Counsel for Petitioners

Respectfully submitted,
/s/ Steven A. Platt Steven A. Platt U.S. Department of Justice, Civil Division Office of Immigration Litigation Counsel for Respondents

 </s> Case 1:17-cv-00480-CBA Document 198 Filed 05/01/17 Page 1 of 2 PageID #: 2680
May 1, 2017
Via ECF
Honorable Carol Bagley Amon United States District Court for the Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201
Re: Darweesh, et al. v. Trump, et al., 17-CV-480 (CBA)
Dear Judge Amon,
The parties previously informed the Court that settlement negotiations were in progress and that they were exchanging draft settlement agreements. ECF No. 196. The Court stayed this case until May 1, 2017 in order to allow those negotiations to continue. ECF No. 197. After further discussion, the parties have not been able to resolve the case. In light of these developments, Plaintiffs respectfully request the scheduling of a status conference in order to seek the assistance of the Court or a Magistrate Judge in resolving the parties’ differences or, if a resolution is not feasible, to determine how to proceed with the litigation.
Respectfully submitted,
/s/ Michael J. Wishnie___________ Attorney Michael J. Wishnie (MW1952) Attorney Muneer I. Ahmad* Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, Connecticut 06520 Telephone: (203) 432-4800 e-mail: muneer.ahmad@ylsclinics.org
* Pro hac vice
Counsel for Plaintiffs

Case 1:17-cv-00480-CBA Document 198 Filed 05/01/17 Page 2 of 2 PageID #: 2681
CERTIFICATE OF SERVICE
I hereby certify that, on May 1, 2017 a copy of the foregoing letter was filed electronically. Notice of this filing will be sent by email to all parties by operation of the court’s electronic filing system as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/ECF system.
/s/ Muneer I. Ahmad Attorney Muneer I. Ahmad* Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, Connecticut 06520 Telephone: (203) 432-4800 e-mail: muneer.ahmad@ylsclinics.org
* Pro hac vice

 </s> Case 1:17-cv-00480-CBA Document 199 Filed 05/01/17 Page 1 of 2 PageID #: 2682

Via ECF May 1, 2017

U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section
P.O. Box 868, Ben Franklin Station Washington, D.C. 20044

The Hon. Carol Bagley Amon United States District Court for the Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201
Re: Darweesh, et al. v. Trump, et al., 17-CV-480 (CBA)

Dear Judge Amon,
The parties previously informed the Court that they are discussing settlement options (ECF No. 196). The Court thus stayed the case until May 1, 2017 (ECF No. 197). Since then, the parties have held further discussions but cannot reach an agreement at this time.
The parties disagree as to how to proceed with the case. Respondents intend to file a renewed motion to dismiss. Although Respondents filed a motion to dismiss almost three months ago (ECF No. 66), that motion is not fully briefed and significant developments bearing on the motion have transpired since it was filed. Respondents therefore request, pursuant to Local Rule 7.1(d), that the Court establish a briefing schedule for such a motion, specifically by requiring the motion to be filed within fourteen days, with opposition and reply briefs to be due in the ordinary course established by the Local Rules. Because this motion is potentially dispositive, Respondents ask the Court to refrain from otherwise establishing a scheduling order—including with regard to Petitioners’ pending motion for class certification—until after the Court rules on the motion to dismiss.
Petitioners suggest that the Court should hold a status conference in lieu of setting a briefing schedule. Because the issue before the Court is simple—how and when the parties should brief a renewed motion to dismiss—Respondents believe that another status conference would not be an efficient use of the parties’ or the Court’s time and resources. Respondents therefore ask the Court to enter a briefing schedule for a renewed motion to dismiss and to decline to hold a conference. If the Court does order such a conference, Respondents ask for leave to appear telephonically.

Case 1:17-cv-00480-CBA Document 199 Filed 05/01/17 Page 2 of 2 PageID #: 2683 Respectfully submitted, /s/ Steven A. Platt Steven A. Platt U.S. Department of Justice, Civil Division Office of Immigration Litigation Counsel for Respondents
CERTIFICATE OF SERVICE I hereby certify that on May 1, 2017, I electronically filed the foregoing with the Clerk of the Court for the United States District Court for the Eastern District of New York by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Steven A. Platt STEVEN A. PLATT
2

 </s> Case 1:17-cv-00480-CBA-LB Document 218-1 Filed 09/01/17 Page 1 of 16 PageID #: 2780

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

------------------------------------ x

:

HAMEED KHALID DARWEESH, et al.,

:

Petitioners, v.

:
: Civil Action No. : 17-CV-480 :

DONALD TRUMP, President of the United States, et al.,

: : :

(Amon, J.)

Respondents.

:

:

------------------------------------ x

SETTLEMENT AGREEMENT Petitioners Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq Alshawi and Respondents the President of the United States, the U.S. Department of Homeland Security, U.S. Customs and Border Protection (“CBP”), the Secretary of Homeland Security, the Commissioner of CBP, and the CBP New York Field Office Director in their official capacities settle and compromise the claims against Respondents in the above-captioned matter on the following terms and conditions: WHEREAS the parties to this Agreement propose to fully and finally resolve their dispute pursuant to this Agreement without the further costs, burdens, and risks of litigation; NOW THEREFORE, in consideration of the foregoing and the mutual covenants contained herein, the Parties agree as follows:

Definitions 1. “Petitioners” means Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq Alshawi.

1 of 8

Case 1:17-cv-00480-CBA-LB Document 218-1 Filed 09/01/17 Page 2 of 16 PageID #: 2781
2. “Respondents” means the President of the United States, the Department of Homeland Security, CBP, the Secretary of Homeland Security, the Commissioner of CBP, and the CBP New York Field Office Director, in their official capacities.
3. “Parties” means both Petitioners and Respondents. 4. The “Executive Order” means the January 27, 2017 Executive Order entitled “Protecting
the Nation from Foreign Terrorist Entry Into the United States,” Exec. Order No. 13,769, 82 Fed. Reg. 8,977. 5. The “Letter” means the letter that has been negotiated by the Parties and is attached to this Agreement as Exhibit A. 6. “Letter Recipients” means all individuals who, as of the date of the execution of this Agreement, provided contact information (either an e-mail address, phone number, or mailing address) in visa applications filed with the U.S. Department of State, and are known to Respondents to meet all of the following conditions: applied for admission at a port of entry in the United States; were found inadmissible solely as a result of the Executive Order; withdrew their application for admission; and since their withdrawal have neither entered the United States nor sought a visa for future travel to the United States. 7. “Agreement” means the present settlement agreement and all of its terms.
General Provisions 8. Best Interests of Parties. In entering this agreement, the Parties agree and represent that this Agreement serves the best interests of the Parties.
2 of 8

Case 1:17-cv-00480-CBA-LB Document 218-1 Filed 09/01/17 Page 3 of 16 PageID #: 2782
9. No Admission of Wrongdoing or Liability. Nothing in this Agreement shall be construed as an acknowledgment, admission, or evidence of any liability of Respondents, their employees, or agents, known or unknown. This Agreement may not be used as evidence of liability in this or any other proceeding.
10. Binding Agreement. This Agreement is binding upon Petitioners and their heirs, legal representatives and assigns, and upon Respondents and Respondents’ successors in office, employees, and agents. This Agreement is solely between the Parties. This Agreement does not, and is not intended to, benefit any third parties or create any enforceable rights for any third party.
11. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the Parties. This Agreement supersedes all prior agreements, representations, statements, promises, and understandings, whether oral or written, express or implied, with respect to this Agreement. This is an integrated agreement and may not be altered or modified, except by a writing signed by all representatives of all Parties at the time of authorization and modification.
12. Effective Date and Execution. This Agreement shall become effective when signed by all of the individuals listed below. The Agreement may be executed in counterparts. Facsimile or electronically scanned pages are as effective as an original.
13. Reliance on Own Counsel. All Parties acknowledge that, in entering into this Agreement, they have relied upon the legal advice of their respective attorneys, and that the Agreement’s terms are fully understood and voluntarily accepted by them.
14. Governing Law. This Agreement is governed by the laws of the United States. This Agreement shall be deemed to have been drafted by all parties to this Agreement and
3 of 8

Case 1:17-cv-00480-CBA-LB Document 218-1 Filed 09/01/17 Page 4 of 16 PageID #: 2783
shall not, therefore, be construed against any party as the author or drafter of the Agreement.
Substantive Provisions 15. Respondents agree that within fourteen days of the execution of this Agreement, they will transmit a copy of the Letter to each Letter Recipient at the email address listed on the Letter Recipient’s most recent visa application. The Letter will be transmitted in English and in Arabic and/or Farsi. Respondents have no obligation to confirm receipt of email and/or Letter by Letter Recipient. 16. Respondents agree that within seven days of fully complying with Paragraph 15, they will notify Petitioners of such compliance. 17. Respondents agree that on the date Respondents provide the notice required under Paragraph 16, they will designate in writing an individual within the U.S. Department of Justice who will serve as the point of contact for Petitioners’ counsel for a period of 90 days from the date of the Paragraph 16 notice (the “Designee”). In the event Petitioners’ counsel identify an individual who applied for admission at a port of entry in the United States, was found inadmissible solely as a result of the Executive Order, withdrew his or her application for admission, has not entered the United States since his or her withdrawal, and wishes to return to the United States, the Designee will work in good faith with Petitioners’ counsel and all relevant government officials, including officials of the U.S. Department of State, U.S. Department of Homeland Security, and U.S. Department of Justice, to coordinate the processing of any application for a new visa or other travel document. The Parties agree that neither the Designee nor Respondents will
4 of 8

Case 1:17-cv-00480-CBA-LB Document 218-1 Filed 09/01/17 Page 5 of 16 PageID #: 2784
have any obligation to coordinate return of any individuals under this Agreement after expiration of the 90-day period. 18. The Parties agree that this Agreement does not entitle any Letter Recipient or other individual to a visa or other travel document. The Parties agree that, notwithstanding this Agreement, Letter Recipients remain subject to the provisions of the Immigration and Nationality Act and other applicable law, and as such may be found ineligible for a visa or travel document and, even after visa or travel document issuance, may be found inadmissible at a port of entry. 19. Petitioners agree that within seven days of receiving the notice of compliance described in Paragraph 16, Petitioners will file a Stipulated Dismissal in the above-captioned matter pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). The Stipulated Dismissal will state that the Parties agree that this action should be dismissed with prejudice, with each party to bear its own fees and costs, and that the Court does not retain jurisdiction to enforce the terms of this Agreement except as herein described. 20. Petitioners agree to waive and release all claims, known or unknown, that they have or may hereafter acquire, for declaratory and injunctive relief or monetary damages based on any challenge to the legality of, or otherwise related to, any inspection, detention, denial of admission, or any other action taken by any of the Respondents pursuant to the Executive Order, against all Respondents and their officers, employees, or agents, past or present, in their official and individual capacities. This waiver and release includes, but is not limited to, Petitioners’ claims for declaratory and injunctive relief that are expressed in their “Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief” (ECF No. 1).
5 of 8

Case 1:17-cv-00480-CBA-LB Document 218-1 Filed 09/01/17 Page 6 of 16 PageID #: 2785 21. The Parties agree to bear their own attorneys’ fees and costs in this action. Petitioners agree that they shall not seek, solicit, or request attorneys’ fees or litigation costs provided under the Equal Access to Justice Act, 28 U.S.C. § 2412, or any other provision. 22. Except as provided in Paragraph 17, upon Petitioners’ filing of the Stipulated Dismissal as required by Paragraph 19, the Parties will have no further obligations to each other. The district court’s jurisdiction to enforce the terms in Paragraph 17 shall expire 90 days after the date Respondents provide the Paragraph 16 notice.
6 of 8

Case 1:17-cv-00480-CBA-LB Document 218-1 Filed 09/01/17 Page 7 of 16 PageID #: 2786
Signatures of the Parties:

Hameed Khalid Darweesh

Date

Haider Sameer Abdulkhaleq Alshawi

Date

Muneer I. Ahmad Counsel for Petitioners

7 of8

Case 1:17-cv-00480-CBA-LB Document 218-1 Filed 09/01/17 Page 8 of 16 PageID #: 2787
1 uflJefs+-a.,,J -/he. Se+hlU1e"1 /r a ri {ee"1ell+ in DG1rwee 5 h v .TVe.Al"\
a11d co11 serJ- to ,· ~ ·

Case 1:17-cv-00480-CBA-LB Document 218-1 Filed 09/01/17 Page 9 of 16 PageID #: 2788 Signatures of the Parties:

Hameed Khalid Darweesh
HaiderS
Muneer I. Ahmad Counsel for Petitioners

Date Date

7 of8
Scanned by CamScanner

Case 1:17-cv-00480-CBA-LB Document 218-1 Filed 09/01/17 Page 10 of 16 PageID #: 2789
-·

Chad A. Readier Acting Assistant Attorney General Civil Division U.S. Department of Justice
/.1<.¥d, jl tJ~
--" Gisela A. Westwater Counsel for Respondents

I

I

Date

8 of 8

Case 1:17-cv-00480-CBA-LB Document 218-1 Filed 09/01/17 Page 11 of 16 PageID #: 2790
EXHIBIT
A

Case 1:17-cv-00480-CBA-LB Document 218-1 Filed 09/01/17 Page 12 of 16 PageID #: 2791
To be circulated to individuals defined as “Letter Recipients” in Paragraph 6 of the Settlement Agreement:
Subject: Reapplying for a Nonimmigrant Visa Following Revocation of Executive Order 13,769
We wrote to you before because you have not entered the United States. If you still want to travel to the United States, you may contact your nearest U.S. embassy or consulate. You may also contact non-governmental organizations and attorneys that might be able to assist you free of charge. (See attached.)
We wish to advise you that, should you wish to apply for a new visa, Executive Order 13,769 has been revoked and you are free to pursue a new visa application at any time. The previous revocation/cancellation of your visa pursuant to Executive Order 13,769 will not adversely affect a new visa application. In fact, a subsequent order, Executive Order 13,780 provides that “[a]ny individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry. Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.”
While you are not required to engage an attorney or other third party to assist you with your visa application, should you wish to do so, there are non-governmental organizations and attorneys that might be able to assist you in preparing your visa application. As required by regulation, the U.S. Department of Justice’s Executive Office for Immigration Review (EOIR) maintains a List of Pro Bono Legal Service Providers (List). See 8 C.F.R. § 1003.61 and
1 of 2

Case 1:17-cv-00480-CBA-LB Document 218-1 Filed 09/01/17 Page 13 of 16 PageID #: 2792
§ 1292.2. The information posted on the List is provided to EOIR by the pro bono legal service providers and the recognized organizations. The List is searchable by state. For instance, in the National Capital Region, the List for the Arlington, Virginia immigration court may be found here: https://www.justice.gov/eoir/file/ProBonoVA/download, and is included as an attachment to this message. EOIR does not endorse any of these organizations, referral services, or attorneys. In addition, EOIR does not participate in, nor is it responsible for, the representation decisions or performance of these organizations, referral services, or attorneys. Please note, it is your responsibility to contact any non-governmental organization or attorney. And, the U.S. government neither endorses the services provided by any non-governmental organization or attorney, nor vouches for their qualifications or quality of services. The U.S. government does not warrant that any non-governmental organization or attorney will provide assistance in a given case.
Of course, we are precluded by U.S. law from guaranteeing that you will be found eligible for and issued a visa. We are additionally precluded from providing any guarantee that you will be granted admission at a port of entry should you be issued a visa. Nevertheless, we assure you that any application will be given proper consideration.
2 of 2

List of * NConaPrsoefit O1r:g1an7iz-actiovn-00480-CBA-LB
** Referral Service

Document
Pro Bono

218-1
Legal

Filed 09/01/17 Page
Service Providers

14

of

16 PageID #: 2793 Updated July 2017

*** Private Attorney

http://www.justice.gov/eoir/list-pro-bono-legal-service-providers

Virginia

List of * NConaPrsoefit O1r:g1an7iz-actiovn-00480-CBA-LB
** Referral Service

Document
Pro Bono

218-1
Legal

Filed 09/01/17 Page
Service Providers

15

of

16 PageID #: 2794 Updated July 2017

*** Private Attorney

http://www.justice.gov/eoir/list-pro-bono-legal-service-providers

Arlington Immigration Court

Arlington, Virginia (page 1 of 2) Catholic Charities Immigration Legal Services of Washington D.C.*

George Washington University Law School Immigration Clinic*

924 G Street, N.W. Washington, DC 20001 Tel: (202) 772-4356 www.catholiccharitiesdc.org/ILS Walk-in Intake: Tuesdays at 9:30am
1618 Monroe Street, N.W. Washington, DC 20010 Tel: (202) 939-2420 Walk-in Intake: Wednesdays at 9:00am
201 E. Diamond Avenue, 3rd floor Gaithersburg, MD 20877
Tel: 301-740-2523 Walk-in Intake: Wednesdays at 9:00am

565 20th St NW Washington, DC 20052 (202) 994-7463 law.gwu.edu/immigration-clinic • All forms of relief from removal • Must call for appointment
• Intake is open during academic semesters only Human Rights First*
805 15th Street NW, Suite 900 Washington DC 20005 Phone: (202) 370-3313
www.humanrightsfirst.org/ayslum/asylum-seekersand-potential-clients
refugee-protection/probono-program/

12247 Georgia Avenue

• Provide representation for non-detained asylum

Silver Spring, MD 20902

seekers before the Arlington and Baltimore Courts

Tel: (301) 942-1790

who are admitted into our program

• Must be afraid to return to home country due to

Walk-In Intake: Thursdays at 8:00am

persecution or torture

Intake Closed the Last Thursday of the Month

• No walk-ins, call via telephone for assistance

• Leave a message and our staff will call you back to

201 E. Diamond Avenue, 3rd Floor

conduct a full interview

Gaithersburg, MD 20877

• Languages: Spanish, French, Amharic, Tigrinya,

Tel: (301) 740-2523

others as needed

HIAS (Silver Spring)*

Group Talk and Consultations: Wednesdays at 12:00pm

1300 Spring St, Suite 500

• First come first serve

Silver Spring, MD 20190

Phone: (301) 844-7248

• Please bring all your documents

legalhelp@hias.org

• If you have been arrested, bring related documents www.hias.org

• Children and families from Central America seeking

humanitarian relief

• Asylum seekers who are scientists, sholars, artists, or

professionals

• Languages: Spanish and Portugeuse

List of * NConaPrsoefit O1r:g1an7iz-actiovn-00480-CBA-LB
** Referral Service

Document
Pro Bono

218-1
Legal

Filed 09/01/17 Page
Service Providers

16

of

16 PageID #: 2795 Updated July 2017

*** Private Attorney

http://www.justice.gov/eoir/list-pro-bono-legal-service-providers

Arlington, Virginia (page 2 of 2)

Kids In Need of Defense (KIND)*

Capital Area Immigrants' Rights (CAIR) Coalition*

Washington DC Office

1612 K Street, NW, Ste. 204

2815 Hartland Rd, Suite 110

Washington, DC 20006

Falls Church, VA 22043

(202) 331-3320 - Main Line

Tel: (202) 670-3585

(202) 331-3329 - Detention Hotline

Fax: (703) 942-6798

Fax: (202) 331-3341

infodc@supportkind.org

www.supportkind.org

• Provides legal services to detained individuals before • KIND only represents minors and unnacompanied

the Arlington and Baltimore Immigration Courts

children

Georgetown University Law Center*

• KIND ayuda a menores de edad y nino/as no-

acompanados

Center for Applied Legal Studies

Northern Virginia Family Service*

600 New Jersey Avenue, NW, Suite 332

Washington, DC 20001

6400 Arlington Blvd, Suite 110

(202) 662-9565

Falls Church, VA 22042

Phone: (571) 748-2806

• Call first. Must have an appointment

Fax: (703) 237-2083

• Represents only non-detainees

www.nvfs.org

• Represents aliens seeking Asylum in removal

proceedings

• No detained clients                                                                      

Catholic Immigration Service, Inc.*

• Languages: Spanish with interpretation in other

languages

1720 I (Eye) Street, NW, Ste. 607 Washington, DC 20006 (202) 466-6611 catholicisorganization@gmail.com
• Represents individuals in removal proceedings & adjustment of status • Represents unaccompanied children (UAC) • Represents individuals under DACA and (TPS) proceedings • Will not represent those with criminal convictions

Ayuda*
2755 Hartland Road, Suite 100 Falls Church, Virginia 22043 Tel: (703) 444-7009 Fax: (703) 444-0038 www.ayuda.com
• All case types, non-detained only • No calls from detention • Will consider cases with criminal convictions • Languages: Spanish, French and Portuguese

 </s> U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:17-cv-00480-CBA-LB

Darweesh et al v. Trump et al Assigned to: Judge Carol Bagley Amon Referred to: Magistrate Judge Lois Bloom Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Date Filed: 01/28/2017 Date Terminated: 09/21/2017 Jury Demand: None Nature of Suit: 463 Habeas Corpus Alien Detainee Jurisdiction: U.S. Government Defendant

Movant
Vincent A. Molino TERMINATED: 02/17/2017

represented by Vincent A. Molino 985-551-0778 PRO SE

Movant Victor Williams

represented by Victor Williams 5209 Baltimore Ave Bethesda, MD 20816 301-951-9045 PRO SE

Plaintiff
Hameed Khalid Darweesh On Behalf of Themselves and Others Similarly Situated

represented by Cecillia Derphine Wang ACLU Immigrant's Rights Project Senior Staff Counsel 125 Broad Street 18th Floor New York, NY 10004 415-343-0775 Fax: 415-395-0950 Email: cwang@aclu.org ATTORNEY TO BE NOTICED

Cody Wofsy American Civil Liberties Union Foundation - Immigrants' 39 Drumm Street San Francisco, CA 94110 415-343-0785 Fax: 415-395-0950 Email: cwofsy@aclu.org

ATTORNEY TO BE NOTICED
Elora Mukherjee Jerome N. Frank Legal Services Organization Yale Law School, 127 Wall Street 20th Floor New Haven, CT 06511 203-432-4800 Fax: 203-432-1426 Email: elora.mukherjee@ylsclinics.org ATTORNEY TO BE NOTICED
Esther Sung National Immigration Law Center 3435 Wilshire Blvd Ste 1600 Los Angeles, CA 90010 213-639-3900 Fax: 213-639-3911 Email: sung@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer C. Newell American Civil Liberties Union Foundation - Immigrants' 39 Drumm Street San Francisco, CA 94111 415-343-0774 Fax: 415-395-0950 Email: jnewell@aclu.org ATTORNEY TO BE NOTICED
Jonathan E. Polonsky Kilpatrick Townsend & Stockton LLP 31 W 52nd Street, 14th Floor New York, NY 10019 212-775-8700 Fax: 212-775-8800 Email: jpolonsky@kilpatricktownsend.com ATTORNEY TO BE NOTICED
Justin B. Cox

National Immigration Law Center POB 170208 Atlanta, GA 30317 678-279-5441 Email: cox@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin National Immigration Law Center 3435 Wilshire Boulevard Suite 1600 Los Angeles, CA 90010 (213)639-3900 Fax: (213)639-3911 Email: tumlin@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Lee Gelernt American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad Street, 18th Fl New York, NY 10004 212-549-2616 Fax: 212-549-2654 Email: lgelernt@aclu.org ATTORNEY TO BE NOTICED
Melissa S. Keaney National Immigration Law Center 3435 Wilshire Boulevard Suite 1600 Los Angeles, CA 90010 (213)639-3900 Fax: (213)639-3911 Email: keaney@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Muneer Ahmad Jerome N Frank Legal Services Organization Yale Law School Po Box 209090

New Haven, CT 06520 203-432-4716 Fax: 203-432-1426 Email: muneer.ahmad@ylsclinics.org PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Espiritu National Immigration Law Center 3435 Wilshire Blvd Suite 1600 Los Angeles, CA 90010 213-639-3900 Fax: 213-639-3911 Email: espiritu@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat ACLU Foundation 125 Broad Street 18th Floor New York, NY 10004 (212)549-2620 Fax: (212)549-2654 Email: ojadwat@aclu.org ATTORNEY TO BE NOTICED
Rebecca M Heller IRAP at the Urban Justice Center 40 Rector St 9th Fl New York, NY 10006 646-704-3922 Fax: 212-620-2616 Email: becca.heller@gmail.com ATTORNEY TO BE NOTICED
Stephen T. Poellot International Refugee Assistance Project, Urban Justice Cent 40 Rector St, 9th Fl New York, NY 10006 646-602-5600 Fax: 212-533-4598

Plaintiff
Haider Sameer Abdulkhaleq Alshawi On Behalf of Themselves and Others Similarly Situated

Email: spoellot@refugeerights.org ATTORNEY TO BE NOTICED
Michael J. Wishnie Jerome N. Frank Legal Services Organization, Inc Yale Law School 127 Wall Street New Haven, CT 06511 203-432-4800 Fax: 203-432-1426 Email: michael.wishnie@yale.edu ATTORNEY TO BE NOTICED
represented by Cecillia Derphine Wang (See above for address) ATTORNEY TO BE NOTICED
Christopher T Dunn NY Civil Liberties Union 125 Broad Street 17th Floor New York, NY 10004 212-344-3005 Fax: 212-344-3329 Email: cdunn@nyclu.org ATTORNEY TO BE NOTICED
Cody Wofsy (See above for address) ATTORNEY TO BE NOTICED
Elora Mukherjee (See above for address) ATTORNEY TO BE NOTICED
Esther Sung (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) ATTORNEY TO BE NOTICED

V.
Intervenor Plaintiff
The New York State Office of the Attorney General

Justin B. Cox (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C. Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) ATTORNEY TO BE NOTICED
Melissa S. Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Muneer Ahmad (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nicholas Espiritu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) ATTORNEY TO BE NOTICED
Rebecca M Heller (See above for address) ATTORNEY TO BE NOTICED
Michael J. Wishnie (See above for address) ATTORNEY TO BE NOTICED
represented by Anjana Samant NYS Attorney General

V.
Defendant Donald J Trump President of the United States

120 Broadway, 23rd Floor New York, NY 10271 212-416-8286 Fax: 212-416-6030 Email: anjana.samant@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lourdes Maria Rosado New York State Office of the Attorney General 120 Broadway 23rd Floor New York, NY 10271 212-416-8252 Fax: 212-416-6030 Email: lourdes.rosado@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sania Waheed Khan NYS Office of the Attorney General 120 Broadway New York, NY 10271 (212)416-8534 Fax: (212)416-6009 Email: sania.khan@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Attie New York Attorney General 120 Broadway New York, NY 10271 212-416-6401 Fax: 212-416-6030 Email: jessica.attie@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Gisela Westwater District Court Section, Officice of Immigration Litigation Us Department Of Justice

Defendant
U.S. Department of Homeland Security ("DHS")

Po Box 868 Ben Franklin Station Washington, DC 20044 202-532-4174 Fax: 202-616-8962 Email: gisela.westwater@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Platt U.S. Department of Justice, Civil Division Office Of Immigration Litigation District Court Po Box 868 Ben Franklin Station Washington, DC 20044 (202)532-4074 Fax: (202)305-7000 Email: steven.a.platt@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Samuel Press U.S. Dep't of Justice, Civil Division Po Box 868 Ben Franklin Station Washington, DC 20044 202-305-0106 Fax: 202-305-7000 Email: joshua.press@usdoj.gov ATTORNEY TO BE NOTICED
Samuel P. Go U.S. Department of Justice Po Box 868 Ben Franklin Station Washington, DC 20044 202-353-9923 Fax: 202-305-7000 Email: samuel.go@usdoj.gov ATTORNEY TO BE NOTICED
represented by Gisela Westwater (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. Customs and Border Protection ("CBP")
Defendant John Kelly Secretary of DHS

Steven Platt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by Gisela Westwater (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Platt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by Gisela Westwater (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Platt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED

Defendant Kevin K. McAleenan Acting Commissioner of CBP
Defendant Jamea T. Madden New York Field Director, CBP
Interested Party Maryam Mikaniki

Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by Gisela Westwater (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Platt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by Gisela Westwater (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Platt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Samuel Press (See above for address) ATTORNEY TO BE NOTICED
Samuel P. Go (See above for address) ATTORNEY TO BE NOTICED
represented by Jennifer L. Colyer Fried Frank Harris Shriver &

Interested Party Public Advocate for the City of New York
Interested Party Muslim Advocates
Interested Party American Muslim Health Professionals Interested Party the Council for the Advancement of American Muslim Professionals Interested Party the Islamic Medical Association of North America

Jacobson, LLP One New York Plaza New York, NY 10004 212-859-8421 Email: jennifer.colyer@ffhsj.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael Theodore Zoppo Fish & Richardson P.C. 601 Lexington Avenue 52nd Floor New York, NY 10022 212-641-2268 Fax: 212-641-2268 Email: zoppo@fr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anton A. Ware Arnold & Porter Kaye Scholer LLP Three Embarcadero Center 10th Floor San Francisco, CA 94111 415-471-3100 Fax: 415-471-3400 Email: anton.ware@apks.com ATTORNEY TO BE NOTICED
represented by Anton A. Ware (See above for address) ATTORNEY TO BE NOTICED
represented by Anton A. Ware (See above for address) ATTORNEY TO BE NOTICED
represented by Anton A. Ware (See above for address) ATTORNEY TO BE NOTICED

Interested Party Muppies, Inc.,
Interested Party the National Arab American Medical Association Interested Party the Network of Arab-American Professionals
V. Amicus Anti-Defamation League
Amicus Yale-New Haven Hospital
Amicus Vets for American Ideals Vets for American Ideals

represented by Anton A. Ware (See above for address) ATTORNEY TO BE NOTICED
represented by Anton A. Ware (See above for address) ATTORNEY TO BE NOTICED
represented by Anton A. Ware (See above for address) ATTORNEY TO BE NOTICED
represented by John Barney Harris Frankfurt Kurnit Klein & Selz, P.C. 488 Madison Avenue, 10th Fl New York, NY 10022 212-980-0120 Fax: 212-593-9175 Email: jharris@fkks.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregory J. Wallance Arnold & Porter Kaye Scholer LLP 250 West 55th Street New York, NY 10019 212-836-8000 Fax: 212-836-6631 Email: gregory.wallance@apks.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth S. Saylor Emery Celli Brinckerhoff & Abady LLP 75 Rockefeller Plaza 20th Floor

Amicus No One Left Behind No One Left Behind
Amicus Common Defense Common Defense

New York, NY 10019 212-763-5065 Fax: 212-763-5001 Email: esaylor@ecbalaw.com ATTORNEY TO BE NOTICED
Matthew D. Brinckerhoff Emery Celli Brinckerhoff & Abady PC 600 Fifth Avenue 10th floor New York, NY 10020 212-763-5000 Fax: 212-763-5001 Email: mbrinckerhoff@ecbalaw.com ATTORNEY TO BE NOTICED
Zoe A Salzman Emery Celli Brinckerhoff & Abady LLP 75 Rockefeller Plaza, 20th Floor New York, NY 10019 212-763-5000 Fax: 212-763-5001 Email: zsalzman@ecbalaw.com ATTORNEY TO BE NOTICED
represented by Elizabeth S. Saylor (See above for address) ATTORNEY TO BE NOTICED
Matthew D. Brinckerhoff (See above for address) ATTORNEY TO BE NOTICED
Zoe A Salzman (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth S. Saylor (See above for address) ATTORNEY TO BE NOTICED

Amicus Harvard Immigration and Refugee Clinical Program
Amicus Fred T. Korematsu Center for Law and Equality
Amicus

Matthew D. Brinckerhoff (See above for address) ATTORNEY TO BE NOTICED
Zoe A Salzman (See above for address) ATTORNEY TO BE NOTICED
represented by Boris Bershteyn Skadden, Arps, Slate, Meagher & Flom LLP 4 Times Square New York, NY 10036 (212)735-2029 Fax: (917)777-2029 Email: boris.bershteyn@skadden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert A. Johnson Akin Gump Strauss Hauer & Feld LLP One Bryant Park New York, NY 10036 212-872-1077 Fax: 212-407-3277 Email: rajohnson@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Weisel Akin Gump Strauss Hauer & Feld LLP 1999 Avenue Of The Stars Suite 600 Los Angeles, CA 90067 310-229-1000 Fax: 310-229-1001 Email: jweisel@akingump.com PRO HAC VICE ATTORNEY TO BE NOTICED

Karen Korematsu
Amicus Holly Yasui
Amicus Asian Americans Advancing Justice
Amicus Jay Hirabayashi
Amicus National Native American Bar Association

represented by Robert A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address)

Amicus South Asian Bar Association of North America
Amicus Public Justice, P.C.
Amicus Impact Fund

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Robert A. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jason Louis Lichtman Lieff, Cabraser, Heimann & Bernstein 250 Hudson Street, 8th Floor New York, NY 10013 212-355-9500 Fax: 212-355-9592 Email: jlichtman@lchb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan D. Selbin Lieff Cabraser Heimann & Bernstein, LLP 250 Hudson Street 8th Floor New York, NY 10013 212-355-9500 Fax: 212-355-9508 Email: jselbin@lchb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jason Louis Lichtman (See above for address)

Amicus Brown University
Amicus Carnegie Mellon University Amicus

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan D. Selbin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katya T Jestin Jenner & Block LLP 919 Third Avenue 37th Floor New York, NY 10022 212-891-1685 Fax: 212-891-1699 Email: kjestin@jenner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross Jenner & Block LLP 1199 New York Ave Nw Suite 900 Washington, DC 20001 202-639-6016 Fax: 202-639-6066 Email: eross@jenner.com TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross (See above for address) TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED

University of Chicago
Amicus Columbia University
Amicus Cornell University
Amicus Dartmouth College

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross (See above for address) TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross (See above for address) TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross (See above for address) TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross (See above for address) TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Duke University
Amicus Emory University
Amicus Harvard University
Amicus Johns Hopkins University

represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross (See above for address) TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross (See above for address) TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross (See above for address) TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross (See above for address) TERMINATED: 07/17/2017

Amicus Massachusetts Institute of Technology
Amicus Northwestern University
Amicus University of Pennsylvania
Amicus Princeton University

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross (See above for address) TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross (See above for address) TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross (See above for address) TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross

Amicus Stanford University
Amicus Vanderbilt University
Amicus Yale Univeristy
Amicus New York City Law Department 100 Church St New York, NY 10007 (212) 356-2502

(See above for address) TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross (See above for address) TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross (See above for address) TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Katya T Jestin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica L. Ross (See above for address) TERMINATED: 07/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Claude Solomon Platton New York City Law Department 100 Church St New York, NY 10007

Amicus Bellevue/NYU Program for Survivors of Torture TERMINATED: 02/17/2017
Amicus NYU Center for Health and Human Rights TERMINATED: 02/17/2017
Amicus Association of American Universities

212-356-3502 Fax: 212-356-2509 Email: cplatton@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregory J. Wallance (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregory J. Wallance (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark S Cohen Cohen & Gresser 100 Park Avenue 23rd Floor New York, NY 10017 212-957-7600 Fax: 212-957-4514 Email: mcohen@cohengresser.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brad D. Brian Munger Tolles & Olson LLP 355 South Grand Avenue Suite 3500 Los Angeles, CA 90071 213-683-9280 Fax: 213-683-5180 Email: brad.brian@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED
Chad I. Golder Munger, Tolles and Olson LLP 1155 F Street Nw 7th Floor Washington, DC 20004

202-220-1100 Fax: 202-220-2300 Email: chad.golder@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Hershel Tabak Cohen & Gresser LLP 800 Third Avenue, 21st Floor New York, NY 10022 212-957-7606 Fax: 212-957-4514 Email: dtabak@cohengresser.com ATTORNEY TO BE NOTICED
Michael Doyen Munger, Tolles & Olson LLP 355 South Grand Avenue 35th Floor Los Angeles, CA 90071 213-683-9100 Fax: 213-687-3702 Email: michael.doyen@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED
Oliver Scott Haker Cohen & Gresser LLP 100 Park Avenue New York, NY 10017 (212)957-7600 Fax: (212)957-4514 Email: ohaker@cohengresser.com ATTORNEY TO BE NOTICED
Sarah G. Boyce Munger, Tolles & Olson LLP 1155 F Street, Nw 7th Floor Washington, DC 20004 202-220-1100 Fax: 202-220-2300 Email: sarah.boyce@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus Members of the Congress of the United States
Amicus Judith Resnik Judith Resnik et al.
Amicus Professors of Constitutional Law Amicus International Law Scholars and Nongovernmental Organizations Arizona State University, Sandra Day O'Connor College o Mail Code 9520 111 E. Taylor St.

represented by David H. Gans Constitutional Accountability Center 1200 18th Street, Nw Suite 501 Washington, DC 20036 202-296-6889 Fax: 202-296-6895 Email: david@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Karanjia DLA Piper LLP 500 Eighth Street, NW Washington, DC 20004 202-799-4135 Email: peterkaranjia@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Meir Feder Jones Day 222 East 41st St New York, NY 10017 212-326-7870 Fax: 212-755-7306 Email: mfeder@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Meir Feder (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron Fellmeth N/A 8218 N 13th Ave Phoenix, AZ 85021 480-241-8414 Fax: 111-111-1111

Phoenix, AZ 85004 480-241-8414
Amicus Arab American Association of New York
Amicus Brooklyn Defender Services
Amicus Immigrant Rights Clinic of Washington Square Legal Services
Amicus Legal Services NYC
Amicus National Organization for Women New York State
Amicus

Email: aaron.fellmeth@asu.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Alina Das New York University School of Law Washington Square Legal Servi Ces Immigrant Rights Clinic 245 Sullivan St, 5th Fl New York, NY 10012 212-998-6430 Fax: 212-995-4031 Email: alina.das@nyu.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alina Das (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alina Das (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alina Das (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alina Das (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

New York Immigration Coalition
Amicus Tamizdat
Amicus Proposed Amici Wiggin and Dana LLP One Century Tower 265 Church Street New Haven, CT 06510 203-498-4584
Amicus Commonwealth of Massachusetts
Amicus

represented by Alina Das (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alina Das (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jonathan Marc Freiman Wiggin & Dana One Century Tower 265 Church Street Po Box 1832 New Haven, CT 06508 203-498-4584 Fax: 203-782-2889 Email: jfreiman@wiggin.com ATTORNEY TO BE NOTICED
Tahlia Townsend Wiggin and Dana LLP One Century Tower 265 Church Street New Haven, CT 06510 203-498-4339 Fax: 203-782-2889 Email: ttownsend@wiggin.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jonathan B. Miller Office of the Attorney General One Ashburton Place Boston, MA 02108 617-963-2073 Fax: 617-727-5762 Email: jonathan.miller@state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vote Vets Vote Vets Amicus the Asian American Bar Association of New York
Amicus the Asian American Legal Defense and Education Fund
Amicus the Hispanic National Bar Association
Amicus LatinoJustice PRLDEF, Inc.
Amicus

represented by Jessica Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Jessica Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Jessica Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Jessica Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED

the National Asian Pacific American Bar Association
Amicus the National Bar Association
Amicus Roderick & Solange MacArthur Justice Center
Amicus Civil Rights Organizations
Amicus

represented by Jessica Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Jessica Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Amir H. Ali Roderick & Solange MacArthur Justice Center 718 7th Street Nw Washington, DC 20001 UNITED STA (202)869-3434 Fax: (202)869-3435 Email: amir.ali@macarthurjustice.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jessica Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED

National and New York Bar Associations of Color
Amicus Coalition of Cities
Amicus Muslim Bar Association of New York
Amicus American Academy of Pediatrics Amicus American Association for Social Psychiatry Amicus Greater New York Hospital Association. Amicus New York City Health & Hospitals Corporation Amicus

represented by Jessica Weisel (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert A. Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Susan P. Greenberg New York City Law Department 100 Church Street, 6th Floor New York, NY 10007 212-356-2484 Fax: 212-356-2509 Email: sgreenbe@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Claude Solomon Platton (See above for address) ATTORNEY TO BE NOTICED
represented by Alina Das (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

NYC Refugee and Asylee Coalition
Amicus Stanford University
Amicus Stanford Health Care
Amicus Lucile Packard Children's Hospital at Stanford
Amicus Massachusetts Health and Hospital Association
Amicus Association of Behavioral Healthcare
Amicus Colorado Coalition for the Medically Underserved
Amicus Dr. Allen S. Keller
Amicus Dr. Tyler B. Evans
Amicus Dr. Peter Selwyn
Amicus Dr. Carl Erik Fisher TERMINATED: 02/17/2017
Amicus Dr. Jerome A. Paulson
Amicus Dr. Dipesh Navsaria
Amicus

Dr. Gene Bishop Amicus Dr. Jennifer Kasper Amicus Dr. Mark Earnest Amicus Dr. Makini Chisolm-Straker Amicus Dr. Elizabeth Singer Amicus Dr. David Keller Amicus Dr. Michele David Amicus Dr. Esther K. Chung Amicus Dr. Susana Morales Amicus Dr. Kenneth Thompson Amicus Dr. Courtney Orynich Gillenwater Amicus Dr. Jeremy S. Boyd Amicus Interfaith Coalition

represented by Robert D. Fram Covington & Burling One Front Street, 35th Floor San Francisco, CA 94111 415-591-6000 Fax: 415-591-6091 Email: rfram@cov.com LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Alexandra Grayner Covington & Burling LLP One Front Street, 35th Floor San Francisco, CA 94111 415-591-6000 Fax: 415-591-6091 Email: agrayner@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew Guy Covington and Burling One City Center 850 Tenth St, Nw Washington, DC 20001 202-662-5902 Fax: 202-778-5902 Email: aguy@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Clarence William Phillips Covington & Burling LLP 620 8th Avenue New York, NY 10018 (212)841-1081 Fax: (212)841-1010 Email: cphillips@cov.com ATTORNEY TO BE NOTICED
Karun A. Tilak Covington & Burling 850 Tenth St, Nw Washington, DC 20001 (202)662-5083 Fax: (202)778-5083 Email: ktilak@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Bi Covington & Burling 1 Front Street San Francisco, CA 94111

Amicus Leading Companies
Amicus African American Ministers Leadership Council
Amicus American Jewish World Service

415-591-7017 Fax: 415-591-6000 Email: kbi@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Ligia M. Markman Covington & Burling LLP 850 Tenth St Nw Washington, DC 20001 (202)662-6000 Fax: 202-662-6291 Email: lmarkman@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Anne Marie Champion Gibson Dunn 200 Park Avenue 47th Floor New York, NY 10166 (212)351-4000 Fax: (212)351-5281 Email: achampion@gibsondunn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman Morrison & Foerster, LLP 250 West 55th Street New York, NY 10019 212-468-8000 Fax: 212-468-7900 Email: aaikman@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Arlington Street Church
Amicus Avodah
Amicus Beloved Community Mennonite Church
Amicus Beth Emet The Free Synagogue
Amicus Catholic Charities Community Services, NY
Amicus Chicago Religious Leadership Network on Latin America
Amicus Clergy and Laity United for Economic Justice

represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Beth Emet The Free Synagogue PRO SE
Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Disciples Home Missions, Christian Church (Disciples of Christ) in the U.S.
Amicus Dominican Sisters of the Congregation of the Queen of the Holy Rosary
Amicus First Congregational United Church of Christ, Phoenix
Amicus First Institutional Baptist Church of Phoenix
Amicus Franciscan Action Network
Amicus Franciscans for Justice
Amicus Good Shepherd United Church of Christ
Amicus HIAS

represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address)

Amicus Interfaith Alliance
Amicus The Interfaith Center of New York
Amicus Jewish Council on Urban Affairs
Amicus Jewish Reconstructionist Congregation
Amicus Judson Memorial Church
Amicus Leadership Conference of Women Religious
Amicus Massachusetts Council of Churches

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus The Missionary Servants of the Most Holy Trinity
Amicus Multifaith Alliance for Syrian Refugees
Amicus National Council of Jewish Women
Amicus National Justice for Our Neighbors
Amicus NETWORK Lobby for Catholic Social Justice
Amicus North Carolina Council of Churches
Amicus NYC New Sanctuary Coalition
Amicus Park Slope Jewish Center

represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address)

Amicus Rincon Congregational United Church of Christ
Amicus School Sisters of Saint Francis, United States Province
Amicus Scottsdale Congregational United Church of Christ
Amicus Shadow Rock United Church of Christ
Amicus Sisters of the Holy Names of Jesus and Mary, U.S.-Ontario Province
Amicus Sisters of Saint Dominic, Congregation of the Most Holy Name
Amicus Sisters of St. Francis of Clinton, Iowa

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Sisters of St. Francis of Penance and Christian Charity, St. Francis Province
Amicus Sisters of St. Francis of Philadelphia
Amicus Sisters of St. Francis of Sylvania, Ohio
Amicus Southside Presbyterian Church
Amicus Southwest Conference of the United Church of Christ
Amicus Tanenbaum
Amicus T'ruah: The Rabbinic Call for Human Rights
Amicus Union for Reform Judaism, Central Conference of American

represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address)

Rabbis and Women of Reform Judaism Amicus Unitarian Universalist Association
Amicus Unitarian Universalist Congregation of South County, Rhode Island
Amicus Unitarian Universalist Service Committee
Amicus United Church of Santa Fe
Amicus University Lutheran Chapel of Berkeley
Amicus Valley Unitarian Universalist Congregation
Amicus Reverend J. Herbert Nelson, II, Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Aikman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Janice Wolk Grenadier TERMINATED: 02/09/2017
Intervenor Raquel Okyay TERMINATED: 02/09/2017
Intervenor Vincent A. Molino TERMINATED: 08/16/2017

Date Filed 01/28/2017
01/28/2017 01/28/2017 01/28/2017 01/28/2017
01/28/2017
01/28/2017 01/28/2017

# Docket Text
1 COMPLAINT against Donald J Trump Was the Disclosure Statement on Civil Cover Sheet completed -Yes,, filed by HAMEED KHALID DARWEESH, HAIDER SAMEER ABDULKHALEQ ALSHAWI. (Wishnie, Michael) (Additional attachment(s) added on 1/30/2017: # 1 Civil Cover Sheet) (Marziliano, August). (Entered: 01/28/2017)
2 NOTICE by HAIDER SAMEER ABDULKHALEQ ALSHAWI re 1 Complaint (Wishnie, Michael) (Entered: 01/28/2017)
3 NOTICE by HAIDER SAMEER ABDULKHALEQ ALSHAWI re 1 Complaint (Wishnie, Michael) (Entered: 01/28/2017)
4 MOTION to Certify Class by HAMEED KHALID DARWEESH. (Wishnie, Michael) (Entered: 01/28/2017)
5 CERTIFICATE OF SERVICE by HAIDER SAMEER ABDULKHALEQ ALSHAWI, HAMEED KHALID DARWEESH re 4 MOTION to Certify Class (Wishnie, Michael) (Entered: 01/28/2017)
6 Emergency MOTION to Stay Removal by HAIDER SAMEER ABDULKHALEQ ALSHAWI, HAMEED KHALID DARWEESH. (Attachments: # 1 Memorandum in Support) (Wishnie, Michael) (Entered: 01/28/2017)
7 NOTICE of Appearance by Lee Gelernt on behalf of All Plaintiffs (aty to be noticed) (Gelernt, Lee) (Entered: 01/28/2017)
8 ORDER granting 6 Motion to Stay. For the reasons stated on the record, and as set out in the attached Order, the Motion to Stay is granted.

01/28/2017
01/28/2017 01/28/2017 01/29/2017 01/29/2017 01/29/2017 01/29/2017

Ordered by Judge Ann M Donnelly on 1/28/2017. (J.M.G.) (Entered: 01/28/2017)
Minute Entry for proceedings held before Judge Ann M Donnelly: Motion Hearing held on 1/28/2017 re 6 Emergency MOTION to Stay Removal filed by HAIDER SAMEER ABDULKHALEQ ALSHAWI and HAMEED KHALID DARWEESH. Case called. Lee Gelernt, Omar Jadwat, and Davis Hausman appeared for the petitioner; Gisela Westwater (by telephone), Susan Riley, Elliot M. Schachner, and Scott Dunn appeared for the respondent. Discussions held. For the reasons stated on the record, and as set out in the January 28, 2017 Order, the Motion to Stay is granted, and the respondents are enjoined and restrained from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States. (Audio Recording 8:31-9:05.) (J.M.G.) (Entered: 01/28/2017)
ORDER: As stated on the record at the January 28, 2017 hearing, the government's submission in connection with the petitioner's requested injunctive relief is due by February 10, 2017; petitioner's opposition by February 13, 2017; government's reply by February 21, 2017. Ordered by Judge Ann M Donnelly on 1/28/2017. (Y.R.Z.) (Entered: 01/28/2017)
ORDER: As stated on the record at the January 28, 2017 hearing, the respondents are to provide a list of individuals detained, pursuant to the January 27, 2017 Executive Order, to the petitioner's counsel. Ordered by Judge Ann M Donnelly on 1/28/2017. (J.M.G.) (Entered: 01/28/2017)
9 NOTICE by HAIDER SAMEER ABDULKHALEQ ALSHAWI, HAMEED KHALID DARWEESH re 8 Order on Motion to Stay , Emergency Motion for Clarification and Enforcement of Order (Wishnie, Michael) (Entered: 01/29/2017)
10 NOTICE by HAIDER SAMEER ABDULKHALEQ ALSHAWI, HAMEED KHALID DARWEESH re 9 Notice(Other) Re. Emergency Motion for Clarification and to Enforce (Wishnie, Michael) (Entered: 01/29/2017)
11 NOTICE of Appearance by Steven Platt on behalf of Donald J Trump (aty to be noticed) (Platt, Steven) (Entered: 01/29/2017)
12 NOTICE of Appearance by Jennifer L. Colyer on behalf of Maryam Mikaniki (aty to be noticed) (Colyer, Jennifer) (Entered: 01/29/2017)

01/29/2017 01/29/2017 01/29/2017 01/29/2017 01/30/2017 01/30/2017 01/30/2017 01/30/2017
01/30/2017

13 Emergency MOTION to Amend/Correct/Supplement 8 Order on Motion to Stay to confirm that class member Maryam Mikaniki is subject to the Court's January 28, 2017 Order by Maryam Mikaniki. (Colyer, Jennifer) (Entered: 01/29/2017)
14 MEMORANDUM in Support re 13 Emergency MOTION to Amend/Correct/Supplement 8 Order on Motion to Stay to confirm that class member Maryam Mikaniki is subject to the Court's January 28, 2017 Order filed by Maryam Mikaniki. (Attachments: # 1Proposed Order) (Colyer, Jennifer) (Entered: 01/29/2017)
ORDER. The Court has received Maryam Mikaniki's emergency motion. The petitioner is to provide the Court with an update on the status of her arrival to the United States by 11:00 a.m. tomorrow morning. Ordered by Judge Ann M Donnelly on 1/29/2017. (Y.R.Z.) (Entered: 01/29/2017)
15 NOTICE of Appearance by Elora Mukherjee on behalf of All Plaintiffs (aty to be noticed) (Mukherjee, Elora) (Entered: 01/29/2017)
Case Assigned to Judge Carol Bagley Amon by random selection. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Mahoney, Brenna) (Entered: 01/30/2017)
The case of Darweesh et al v. Trump et al, has been opened in the Eastern District of New York. The case number is 1:17-cv-00480-CBA. PLEASE NOTE: You must pay the case filing fee within seven (7) days. Select the event (Civil Case Filing Fee) and pay online. (Marziliano, August) (Entered: 01/30/2017)
16 Letter to Judges Donnelly and Amon as directed by Minute Order of January 29, 2017 by Maryam Mikaniki (Colyer, Jennifer) (Entered: 01/30/2017)
17 TRANSCRIPT of Proceedings held on January 28, 2017, before Judge Donnelly. Court Transcriber: Transcriptions Plus II, Inc.. Email address: laferrara44@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request Transcript" located under "Other Filings - Other Documents". Redaction Request due 2/20/2017. Redacted Transcript Deadline set for 3/2/2017. Release of Transcript Restriction set for 5/1/2017. (Rocco, Christine) (Entered: 01/30/2017)
CIVIL CASE FILING FEE: $ 400, receipt number 0207-9245879 (Wishnie, Michael) (Entered: 01/30/2017)

01/30/2017 01/31/2017 01/31/2017 01/31/2017 01/31/2017 01/31/2017 01/31/2017 02/01/2017 02/01/2017

18 NOTICE of Appearance by Cecillia Derphine Wang on behalf of Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh (aty to be noticed) (Wang, Cecillia) (Main Document 18 replaced on 1/31/2017) (Fagan, Linda). (Fagan, Linda). (Entered: 01/30/2017)
19 NOTICE of Appearance by Jonathan E. Polonsky on behalf of Hameed Khalid Darweesh (aty to be noticed) (Polonsky, Jonathan) (Entered: 01/31/2017)
20 NOTICE by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS") of Supplemental Authority (Attachments: # 1 Exhibit Department of State Letter) (Platt, Steven) (Entered: 01/31/2017)
21 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9253158. by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh. (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing, # 3 Certificate of Service) (Wofsy, Cody) (Entered: 01/31/2017)
22 MOTION for Leave to Appear Pro Hac Vice on behalf of Karen C. Tumlin Filing fee $ 150, receipt number 0207-9253319. by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh. (Attachments: # 1 Affidavit in Support, # 2 Certificate of Good Standing) (Tumlin, Karen) (Entered: 01/31/2017)
23 MOTION for Leave to Appear Pro Hac Vice on behalf of Nicholas Espiritu Filing fee $ 150, receipt number 0207-9253334. by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh. (Attachments: # 1 Affidavit in Support, # 2 Certificate of Good Standing) (Espiritu, Nicholas) (Entered: 01/31/2017)
24 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9253354. by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh. (Attachments: # 1 Affidavit, # 2 Certificate of Standing, # 3 Certificate of Service) (Newell, Jennifer) (Entered: 01/31/2017)
SCHEDULING ORDER: A status conference will be held on February 2, 2017 at 2:30 p.m. in Courtroom 10D South before Judge Carol Bagley Amon to address the briefing of issues in this case. So Ordered by Judge Carol Bagley Amon on February 1, 2017. (Entered: 02/01/2017)
25 ORDER granting 21 Motion for Leave to Appear Pro Hac Vice for Cody Wofsy, Esq. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification

02/01/2017
02/01/2017
02/01/2017
02/01/2017 02/01/2017 02/01/2017 02/01/2017

of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office.. Ordered by Judge Carol Bagley Amon on 2/1/2017. (Fernandez, Erica) (Entered: 02/01/2017)
26 ORDER granting 22 Motion for Leave to Appear Pro Hac Vice for Karen C. Tumlin Esq. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office. Ordered by Judge Carol Bagley Amon on 2/1/2017. (Fernandez, Erica) (Entered: 02/01/2017)
27 ORDER granting 23 Motion for Leave to Appear Pro Hac Vice for Nicholas Espiritu, Esq. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office. Ordered by Judge Carol Bagley Amon on 2/1/2017. (Fernandez, Erica) (Entered: 02/01/2017)
28 ORDER granting 24 Motion for Leave to Appear Pro Hac Vice for Jennifer C. Newell, Esq. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office. Ordered by Judge Carol Bagley Amon on 2/1/2017. (Fernandez, Erica) (Entered: 02/01/2017)
29 NOTICE of Appearance by Cody Wofsy on behalf of Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh (notification declined or already on case) (Wofsy, Cody) (Entered: 02/01/2017)
30 NOTICE of Appearance by Jennifer C. Newell on behalf of Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh (notification declined or already on case) (Newell, Jennifer) (Entered: 02/01/2017)
31 NOTICE of Appearance by Karen C. Tumlin on behalf of Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh (notification declined or already on case) (Tumlin, Karen) (Entered: 02/01/2017)
32 NOTICE of Appearance by Nicholas Espiritu on behalf of Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh (notification declined or already on case) (Espiritu, Nicholas) (Entered: 02/01/2017)

02/01/2017 02/01/2017
02/01/2017 02/01/2017
02/02/2017 02/02/2017 02/02/2017 02/02/2017 02/02/2017

33 MOTION for Leave to File Amicus Brief by Anti-Defamation League. (Harris, John) (Entered: 02/01/2017)
34 MOTION for Leave to Appear Pro Hac Vice on behalf of Melissa Keaney Filing fee $ 150, receipt number 0207-9257163. by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh. (Attachments: # 1 Affidavit in Support, # 2 Certificate of Good Standing) (Keaney, Melissa) (Entered: 02/01/2017)
35 NOTICE of Appearance by Samuel P. Go on behalf of All Defendants (aty to be noticed) (Go, Samuel) (Entered: 02/01/2017)
36 NOTICE by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS") of Supplemental Authority (Attachments: # 1 Memorandum from White House Counsel) (Go, Samuel) (Entered: 02/01/2017)
37 NOTICE of Appearance by Sania Waheed Khan on behalf of The New York State Office of the Attorney General (aty to be noticed) (Khan, Sania) (Entered: 02/02/2017)
38 NOTICE by The New York State Office of the Attorney General of Motion to Intervene (Khan, Sania) (Entered: 02/02/2017)
39 Fully Briefed MOTION to Intervene by The New York State Office of the Attorney General. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Khan, Sania) (Entered: 02/02/2017)
40 Letter to Court Enclosing Courtesy Copies by The New York State Office of the Attorney General (Khan, Sania) (Entered: 02/02/2017)
Minute entry for status conference held on February 2, 2017, before Judge Carol Bagley Amon. Appearances: For plaintiffs: Cecillia Wang, Lee Gelernt, Michael Wishnie, Karen Tumlin, Jonathan Polonsky. For Interested Party Mikaniki: Jennifer Colyer. For defendants: Samuel Go, Steven Platt. Status conference held. As stated on the record, the parties consent to remote public access to all but two filings in this case. As further stated on the record, the TRO is extended until February 21, 2017 for good cause shown. Parties are to confer to determine the issues to be briefed and the briefing schedule, and will inform the Court by letter of their determination. Counsel for Mr. Darweesh and Ms. Mikaniki, by 5 pm on Friday, February 3, 2017, are to file redacted versions of the document that each identified to the Court, which will be made available for remote public access. (Court Reporter Linda Danelczyk.) (Entered: 02/02/2017)

02/02/2017 02/02/2017
02/02/2017 02/02/2017 02/03/2017
02/03/2017 02/03/2017 02/06/2017
02/06/2017 02/06/2017 02/06/2017
02/06/2017

41 Letter to Court Regarding Corrected Copies of Memorandum of Law by The New York State Office of the Attorney General (Khan, Sania) (Entered: 02/02/2017)
42 MOTION to Intervene Corrected Memorandum of Law and Attached Exhibits by The New York State Office of the Attorney General. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Khan, Sania) (Entered: 02/02/2017)
57 MOTION to Intervene in Support of President Donald J. Trump et. al. by Janice Wolk Grenadier. (Fernandez, Erica) (Entered: 02/08/2017)
58 MOTION to Intervene in Support of President Donald J. Trump et al by Raquel Okyay. (Fernandez, Erica) (Entered: 02/08/2017)
43 REDACTION to 14 Memorandum in Support, (Substituted, Redacted version filed per the direction of the Court at hearing on February 2, 2017) by Maryam Mikaniki (Attachments: # 1 Proposed Order) (Colyer, Jennifer) (Entered: 02/03/2017)
ORDER re 33 . The motion for leave to file an amicus brief is granted. So ordered by Judge Carol Bagley Amon on 2/3/2017. (Entered: 02/03/2017)
44 NOTICE by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh of Withdrawal of Request To File Redacted Petition (Wang, Cecillia) (Entered: 02/03/2017)
45 CERTIFICATE OF SERVICE by The New York State Office of the Attorney General re 39 Fully Briefed MOTION to Intervene , 40 Letter, 38 Notice(Other) (Khan, Sania) (Entered: 02/06/2017)
46 Letter to U.S. Department of Justice re: Corrected Motion to Intervene by The New York State Office of the Attorney General (Khan, Sania) (Entered: 02/06/2017)
47 Letter to Plaintiffs re: Corrected Motion to Intervene by The New York State Office of the Attorney General (Khan, Sania) (Entered: 02/06/2017)
48 CERTIFICATE OF SERVICE by The New York State Office of the Attorney General re 41 Letter, 46 Letter, 47 Letter, 42 MOTION to Intervene Corrected Memorandum of Law and Attached Exhibits (Khan, Sania) (Entered: 02/06/2017)
49 Letter to United States Department of Justice re: Corrected Motion to Intervene (replacing ECF No. 46) by The New York State Office of the Attorney General (Khan, Sania) (Entered: 02/06/2017)

02/06/2017 02/06/2017 02/07/2017
02/07/2017
02/07/2017 02/07/2017 02/08/2017 02/08/2017

50 NOTICE by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS") of Supplemental Authority (Attachments: # 1 Exhibit Department of State Letter) (Platt, Steven) (Entered: 02/06/2017)
51 Letter MOTION for Leave to File Amicus Brief by Interested Party. (Vicari, Angela) (Entered: 02/06/2017)
52 NOTICE by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh re 8 Order on Motion to Stay re Motion to Enforce (Attachments: # 1 Memorandum in Support of Motion to Enforce, # 2 Proposed Order, # 3 Declaration of My Khanh Ngo (Part I), # 4Declaration of My Khanh Ngo (Part II), # 5 Declaration of Sara Yarjani, # 6 Declaration of Ramez Snober, # 7 Declaration of Suha Amin Abdullah Abushamma, # 8 Declaration of Hind Elbashir, # 9 Declaration of Rashid Ahmed Gibril Ali, # 10 Declaration of Yahya Aburomman, # 11 Declaration of Nabila Alhaffar, # 12 Declaration of Manar) (Wishnie, Michael) (Entered: 02/07/2017)
53 MOTION to Compel and Enforce Court Order by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh. (Attachments: # 1 Memorandum in Support of Motion to Enforce, # 2 Proposed Order, # 3 Declaration of My Khanh Ngo (Part I), # 4 Declaration of My Khanh Ngo (Part II), # 5 Declaration of Sara Yarjani, # 6 Declaration of Ramez Snober, # 7 Declaration of Suha Amin Abdullah Abushamma, # 8 Declaration of Hind Elbashir, # 9 Declaration of Rashid Ahmed Gibril Ali, # 10 Declaration of Yahya Aburomman, # 11 Declaration of Nabila Alhaffar, # 12 Declaration of Manar) (Wishnie, Michael) (Entered: 02/07/2017)
ORDER re 51 . The motion for leave to file an amicus brief is granted. So Ordered by Judge Carol Bagley Amon on 2/7/2017. (Entered: 02/07/2017)
54 Letter to Court Regarding Corrected Filing of Motion to Enforce by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh (Attachments: # 1 Certificate of Service) (Wishnie, Michael) (Entered: 02/07/2017)
55 MOTION for Leave to File Law Student Appearances by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh. (Attachments: # 1 Law Student Intern Appearances Form) (Wishnie, Michael) (Entered: 02/08/2017)
56 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on February 2, 2017, before Judge Carol B. Amon. Court Reporter/Transcriber Linda Danelczyk, Telephone number 718-613-

02/08/2017 02/08/2017 02/08/2017 02/09/2017
02/09/2017 02/09/2017 02/09/2017 02/09/2017 02/10/2017 02/10/2017

2330. Email address: Linda_Danelczyk@nyed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 3/1/2017. Redacted Transcript Deadline set for 3/13/2017. Release of Transcript Restriction set for 5/9/2017. (Danelczyk, Linda) (Entered: 02/08/2017)
59 NOTICE of Appearance by Omar C. Jadwat on behalf of All Plaintiffs (aty to be noticed) (Jadwat, Omar) (Entered: 02/08/2017)
60 ORDER re 53 Motion to Compel and Enforce Court Order by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh. (Entered: 02/08/2017)
61 Letter Re. Briefing Schedule by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh (Wishnie, Michael) (Entered: 02/08/2017)
ORDER: The Court accepts the agreed-upon briefing schedule set forth in the parties' letter dated February 8, 2017 61 . A hearing on the applications indicated therein will be held on February 21, 2017 at 10:00 a.m. in Courtroom 10D South before Judge Carol Bagley Amon. (Entered: 02/09/2017)
62 ORDER denying 57 Motion to Intervene: The Court accordingly denies Grenadier's motion to intervene in full. Ordered by Judge Carol Bagley Amon on 2/8/2017. (Fernandez, Erica) (Entered: 02/09/2017)
63 ORDER denying 58 Motion to Intervene: The Court accordingly denies Okyay's motion to intervene in full. Ordered by Judge Carol Bagley Amon on 2/8/2017. (Fernandez, Erica) (Entered: 02/09/2017)
64 MOTION for Leave to File Amicus Brief by Vets for American Ideals, No One Left Behind, Common Defense. (Salzman, Zoe) (Entered: 02/09/2017)
65 Letter Motion for Leave to File Amicus Brief by Harvard Immigration and Refugee Clinical Program (Bershteyn, Boris) (Entered: 02/09/2017)
Because of the complexities of this case, the Court denies 55 Motion for Leave to File Law Student Appearances. So Ordered by Judge Carol Bagley Amon on 2/10/2017. (Entered: 02/10/2017)
66 MOTION to Dismiss for Lack of Jurisdiction ( Responses due by 2/16/2017), Motion to Dismiss for Failure to State a Claim and Opposition to Petitioners' Motion for a Preliminary Injunction by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S.

02/10/2017
02/10/2017
02/10/2017
02/10/2017 02/10/2017 02/10/2017 02/10/2017 02/10/2017 02/10/2017 02/12/2017

Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS"). (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, Hoffman Declaration) (Platt, Steven) (Entered: 02/10/2017)
67 MOTION for Leave to Appear Pro Hac Vice on behalf of Esther Sung Filing fee $ 150, receipt number 0207-9282010. by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh. (Attachments: # 1 Affidavit in Support, # 2 Certificate of Good Standing) (Sung, Esther) (Entered: 02/10/2017)
68 RESPONSE in Opposition re 53 MOTION to Compel and Enforce Court Order filed by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS"). (Platt, Steven) (Entered: 02/10/2017)
69 Letter Motion for Leave to File Amicus Brief by Fred T. Korematsu Center for Law and Equality, Karen Korematsu, Holly Yasui, Asian Americans Advancing Justice, Jay Hirabayashi, National Native American Bar Association, South Asian Bar Association of North America (Johnson, Robert) (Entered: 02/10/2017)
70 Letter MOTION for Leave to File Amicus Brief by Public Advocate for the City of New York. (Zoppo, Michael) (Entered: 02/10/2017)
71 ORDER granting 42 Motion to Intervene. Ordered by Judge Carol Bagley Amon on 2/10/2017. Modified on 2/15/2017 (Barrett, C). (Entered: 02/10/2017)
72 NOTICE of Appearance by Jonathan D. Selbin on behalf of Public Justice, P.C., Impact Fund (aty to be noticed) (Selbin, Jonathan) (Entered: 02/10/2017)
73 NOTICE of Appearance by Jason Louis Lichtman on behalf of Impact Fund, Public Justice, P.C. (aty to be noticed) (Lichtman, Jason) (Entered: 02/10/2017)
74 Letter MOTION for Leave to File Amicus Brief by Impact Fund, Public Justice, P.C.. (Selbin, Jonathan) (Entered: 02/10/2017)
79 MOTION to Intervene by Vincent A. Molino. (Lee, Tiffeny) (Entered: 02/13/2017)
Order: On February 10, 2017, the Court granted the unopposed motion to intervene by the New York Attorney General. Respondents have already filed a motion to dismiss petitioners' complaint. Motions, if any, on jurisdictional or other grounds, directed to the intervenor complaint are due February 27, 2017. If such motions are filed, the New York

02/13/2017
02/13/2017
02/13/2017 02/13/2017 02/13/2017 02/13/2017 02/13/2017 02/13/2017 02/14/2017

Attorney General's response is due March 13, 2017, and respondents' reply is due March 20, 2017. So Ordered by Judge Carol Bagley Amon on 2/12/2017. (Entered: 02/12/2017)
75 Amicus Curiae APPEARANCE entered by Katya T Jestin on behalf of Brown University, Carnegie Mellon University, University of Chicago, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Harvard University, Johns Hopkins University, Massachusetts Institute of Technology, Northwestern University, University of Pennsylvania, Princeton University, Stanford University, Vanderbilt University, Yale Univeristy (Jestin, Katya) (Entered: 02/13/2017)
76 Letter MOTION for Leave to File Amicus Brief by Brown University, Carnegie Mellon University, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Harvard University, Johns Hopkins University, Massachusetts Institute of Technology, Northwestern University, Princeton University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Yale Univeristy. (Attachments: # 1 Amicus Brief) (Jestin, Katya) (Entered: 02/13/2017)
77 Amicus Curiae APPEARANCE entered by Claude Solomon Platton on behalf of New York City Law Department (Platton, Claude) (Entered: 02/13/2017)
78 Letter MOTION for Leave to File Amicus Brief by New York City Law Department. (Platton, Claude) (Entered: 02/13/2017)
80 NOTICE of Appearance by Matthew D. Brinckerhoff on behalf of Common Defense, No One Left Behind, Vets for American Ideals (aty to be noticed) (Brinckerhoff, Matthew) (Entered: 02/13/2017)
ORDER granting 64 , 65 , 69 , 70 , 74 , 76 , and 78 Motions for Leave to File an Amicus Brief. So ordered by Judge Carol Bagley Amon on 2/13/2017. (Entered: 02/13/2017)
81 Letter MOTION for Leave to File Amicus Brief by Association of American Universities. (Cohen, Mark) (Entered: 02/13/2017)
88 Corrected MOTION to Intervene by Vincent A. Molino. (Barrett, C) (Entered: 02/15/2017)
ORDER re 81 . The motion for leave to file an amicus brief is granted. So ordered by Judge Carol Bagley Amon on 2/14/2017. (Entered: 02/14/2017)

02/14/2017 02/14/2017 02/14/2017
02/14/2017 02/14/2017 02/15/2017 02/15/2017 02/15/2017 02/15/2017 02/15/2017
02/15/2017 02/15/2017

82 NOTICE of Appearance by Michael Theodore Zoppo on behalf of Public Advocate for the City of New York (notification declined or already on case) (Zoppo, Michael) (Entered: 02/14/2017)
83 Letter MOTION for Leave to File Amicus Brief by Members of the Congress of the United States. (Gans, David) (Entered: 02/14/2017)
84 Letter MOTION for Leave to File Amicus Brief by Muslim Advocates, American Muslim Health Professionals, the Council for the Advancement of American Muslim Professionals, the Islamic Medical Association of North America, Muppies, Inc.,, the National Arab American Medical Association, the Network of Arab-American Professionals. (Ware, Anton) (Entered: 02/14/2017)
85 Letter MOTION for Leave to File Amici Curiae brief by Judith Resnik. (Feder, Meir) (Entered: 02/14/2017)
Motions terminated, docketed incorrectly: 85 Letter MOTION for Leave to File Amici Curiae brief filed by Judith Resnik. (Motion Re-file see document 86 .) (Manson, Eddie) (Entered: 02/15/2017)
86 Amended MOTION for Leave to File Amici Curiae brief by Professors of Constitutional Law. (Feder, Meir) (Entered: 02/15/2017)
87 Amended MOTION for Leave to File Amici Curiae brief by Professors of Constitutional Law. (Feder, Meir) (Entered: 02/15/2017)
ORDER granting 83 , 84 , and 87 Motions for Leave to File an Amicus Brief. So ordered by Judge Carol Bagley Amon on 2/15/2017. (Entered: 02/15/2017)
Motion terminated: 79 MOTION to Intervene filed by Vincent A. Molino. A corrected version of this motion has been filed as ECF No. 88 . (Barrett, C) (Entered: 02/15/2017)
89 Notice of MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9294566. by International Law Scholars and Nongovernmental Organizations. (Attachments: # 1 Affidavit Affidavit in Support of Motion to Admit Counsel PHV, # 2Supplement Certificate of Good Standing) (Fellmeth, Aaron) (Entered: 02/15/2017)
90 TRIAL BRIEF for Amicus Curiae by International Law Scholars and Nongovernmental Organizations (Fellmeth, Aaron) (Entered: 02/15/2017)
91 Letter MOTION for Leave to File Brief of Amici Curiae by Arab American Association of New York, Brooklyn Defender Services, Immigrant Rights Clinic of Washington Square Legal Services, Legal Services NYC, National Organization for Women New York State, New

02/15/2017 02/15/2017 02/15/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017

York Immigration Coalition, Tamizdat. (Das, Alina) (Entered: 02/15/2017)
92 NOTICE of Appearance by Christopher T Dunn on behalf of Haider Sameer Abdulkhaleq Alshawi (aty to be noticed) (Dunn, Christopher) (Entered: 02/15/2017)
93 Letter Motion for Permission to File an Amicus Curiae Brief - on behalf of the proposed amici by Proposed Amici (Freiman, Jonathan) (Entered: 02/15/2017)
94 Letter MOTION for Leave to File Brief of Amici Curiae by Commonwealth of Massachusetts. (Miller, Jonathan) (Entered: 02/15/2017)
95 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9296060. by Association of American Universities. (Golder, Chad) (Entered: 02/16/2017)
96 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9296244. by Association of American Universities. (Brian, Brad) (Entered: 02/16/2017)
97 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9296256. by Association of American Universities. (Doyen, Michael) (Entered: 02/16/2017)
98 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9296276. by Association of American Universities. (Boyce, Sarah) (Entered: 02/16/2017)
99 TRIAL BRIEF of Amici Curiae by Common Defense, No One Left Behind, Vets for American Ideals, Vote Vets (Salzman, Zoe) (Entered: 02/16/2017)
100 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9296706. by Proposed Amici. (Townsend, Tahlia) (Entered: 02/16/2017)
101 MOTION for Leave to Appear Pro Hac Vice for Erica L. Ross Filing fee $ 150, receipt number 0207-9296924. by Brown University, Carnegie Mellon University, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Harvard University, Johns Hopkins University, Massachusetts Institute of Technology, Northwestern University, Princeton University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Yale Univeristy. (Attachments: # 1Affidavit in Support of Motion for Pro Hac Admission, # 2 Certificate of Good Standing

02/16/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017
02/16/2017 02/16/2017 02/16/2017
02/16/2017

(District of Columbia), # 3 Certificate of Good Standing (New York)) (Ross, Erica) (Entered: 02/16/2017)
102 Corporate Disclosure Statement by Asian Americans Advancing Justice (Johnson, Robert) (Entered: 02/16/2017)
103 Corporate Disclosure Statement by the Asian American Bar Association of New York (Johnson, Robert) (Entered: 02/16/2017)
104 Corporate Disclosure Statement by the Asian American Legal Defense and Education Fund (Johnson, Robert) (Entered: 02/16/2017)
105 Corporate Disclosure Statement by the Hispanic National Bar Association (Johnson, Robert) (Entered: 02/16/2017)
106 Corporate Disclosure Statement by Fred T. Korematsu Center for Law and Equality (Johnson, Robert) (Entered: 02/16/2017)
107 Corporate Disclosure Statement by LatinoJustice PRLDEF, Inc. (Johnson, Robert) (Entered: 02/16/2017)
108 Corporate Disclosure Statement by the National Asian Pacific American Bar Association (Johnson, Robert) (Entered: 02/16/2017)
109 Corporate Disclosure Statement by the National Bar Association (Johnson, Robert) (Entered: 02/16/2017)
110 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9297313. by Roderick & Solange MacArthur Justice Center. (Ali, Amir) (Entered: 02/16/2017)
111 Corporate Disclosure Statement by National Native American Bar Association identifying Other Affiliate the National Native American Bar Association Foundation for National Native American Bar Association. (Johnson, Robert) (Entered: 02/16/2017)
112 Corporate Disclosure Statement by South Asian Bar Association of North America (Johnson, Robert) (Entered: 02/16/2017)
113 NOTICE of Appearance by Jessica Attie on behalf of The New York State Office of the Attorney General (aty to be noticed) (Attie, Jessica) (Entered: 02/16/2017)
114 NOTICE of Appearance by Robert A. Johnson on behalf of Fred T. Korematsu Center for Law and Equality, Jay Hirabayashi, Karen Korematsu, Holly Yasui, Civil Rights Organizations, National and New York Bar Associations of Color (aty to be noticed) (Johnson, Robert) (Entered: 02/16/2017)
115 Amicus Curiae APPEARANCE entered by Claude Solomon Platton on behalf of Coalition of Cities (Platton, Claude) (Entered: 02/16/2017)

02/16/2017 02/16/2017
02/16/2017
02/16/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017

116 NOTICE of Appearance by Anjana Samant on behalf of The New York State Office of the Attorney General (aty to be noticed) (Samant, Anjana) (Entered: 02/16/2017)
117 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9297599. by Asian Americans Advancing Justice, Civil Rights Organizations, Fred T. Korematsu Center for Law and Equality, Jay Hirabayashi, Karen Korematsu, LatinoJustice PRLDEF, Inc., National Native American Bar Association, National and New York Bar Associations of Color, South Asian Bar Association of North America, Holly Yasui, the Asian American Bar Association of New York, the Asian American Legal Defense and Education Fund, the Hispanic National Bar Association, the National Asian Pacific American Bar Association, the National Bar Association. (Attachments: # 1 Affidavit, # 2 Certificate of Service) (Weisel, Jessica) (Entered: 02/16/2017)
118 NOTICE of Appearance by Robert A. Johnson on behalf of Asian Americans Advancing Justice, Civil Rights Organizations, Fred T. Korematsu Center for Law and Equality, Jay Hirabayashi, Karen Korematsu, LatinoJustice PRLDEF, Inc., National Native American Bar Association, National and New York Bar Associations of Color, South Asian Bar Association of North America, Holly Yasui, the Asian American Bar Association of New York, the Asian American Legal Defense and Education Fund, the Hispanic National Bar Association, the National Asian Pacific American Bar Association, the National Bar Association (aty to be noticed) (Johnson, Robert) (Entered: 02/16/2017)
119 NOTICE of Appearance by Rebecca M Heller on behalf of All Plaintiffs (aty to be noticed) (Heller, Rebecca) (Entered: 02/16/2017)
120 Amicus Curiae APPEARANCE entered by Susan P. Greenberg on behalf of Coalition of Cities (Greenberg, Susan) (Entered: 02/16/2017)
121 TRIAL BRIEF of Amici Curiae by Impact Fund, Public Justice, P.C. (Lichtman, Jason) (Entered: 02/16/2017)
122 Letter MOTION for Leave to File Amicus Brief by Roderick & Solange MacArthur Justice Center. (Attachments: # 1 Amicus Brief) (Ali, Amir) (Entered: 02/16/2017)
123 TRIAL BRIEF of Amicus Curiae by Anti-Defamation League (Harris, John) (Entered: 02/16/2017)
124 Letter in Support of Plaintiffs' Request for Continuation of Interim Stay by The New York State Office of the Attorney General (Khan, Sania) (Entered: 02/16/2017)
125 NOTICE by Public Advocate for the City of New York Brief of Amicus Curiae (Zoppo, Michael) (Entered: 02/16/2017)

02/16/2017
02/16/2017 02/16/2017 02/16/2017 02/16/2017
02/16/2017 02/16/2017 02/16/2017

126 Amended MOTION for Leave to File Brief of Amici Curiae by Arab American Association of New York, Brooklyn Defender Services, Immigrant Rights Clinic of Washington Square Legal Services, Legal Services NYC, National Organization for Women New York State, New York Immigration Coalition, Tamizdat, Muslim Bar Association of New York. (Attachments: # 1 Exhibit Proposed Amici Curiae Brief, # 2 Exhibit Proposed Notice of Appearance) (Das, Alina) (Entered: 02/16/2017)
ORDER granting 91 , 93 , 94 , and 122 Motions for Leave to File an Amicus Brief. So ordered by Judge Carol Bagley Amon on 2/16/2017. (Entered: 02/16/2017)
127 TRIAL BRIEF by Professors of Constitutional Law. (Feder, Meir) (Modified: Main Document replaced on 2/17/2017.) (Entered: 02/16/2017)
128 TRIAL BRIEF of Amici States in Support of Plaintiffs' Request for Continuing Preliminary Relief by Commonwealth of Massachusetts (Miller, Jonathan) (Entered: 02/16/2017)
129 TRIAL BRIEF of Amici Curiae by Asian Americans Advancing Justice, Civil Rights Organizations, Fred T. Korematsu Center for Law and Equality, Jay Hirabayashi, Karen Korematsu, LatinoJustice PRLDEF, Inc., National Native American Bar Association, National and New York Bar Associations of Color, South Asian Bar Association of North America, Holly Yasui, the Asian American Bar Association of New York, the Asian American Legal Defense and Education Fund, the Hispanic National Bar Association, the National Asian Pacific American Bar Association, the National Bar Association (Johnson, Robert) (Entered: 02/16/2017)
130 NOTICE of Appearance by Johnathan Marc Freiman on behalf of Proposed Amici (aty to be noticed) (Freiman, Jonathan) (Entered: 02/16/2017)
131 Amicus Curiae APPEARANCE entered by Alina Das on behalf of Arab American Association of New York, Brooklyn Defender Services, Immigrant Rights Clinic of Washington Square Legal Services, Legal Services NYC, Muslim Bar Association of New York, National Organization for Women New York State, New York Immigration Coalition, Tamizdat (Das, Alina) (Entered: 02/16/2017)
132 MOTION for Leave to File Brief for Amici Curiae by International Law Scholars and Nongovernmental Organizations. (Fellmeth, Aaron) (Entered: 02/16/2017)

02/16/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017
02/16/2017 02/16/2017
02/16/2017

133 Amicus Curiae APPEARANCE entered by Daniel Hershel Tabak on behalf of Association of American Universities (Tabak, Daniel) (Entered: 02/16/2017)
134 Amicus Curiae APPEARANCE entered by Oliver Scott Haker on behalf of Association of American Universities (Haker, Oliver) (Entered: 02/16/2017)
135 Corporate Disclosure Statement by Association of American Universities (Tabak, Daniel) (Entered: 02/16/2017)
136 TRIAL BRIEF (Brief of Association of American Universities as Amicus Curiae in Support of Petitioners' Requested Relief) by Association of American Universities (Tabak, Daniel) (Entered: 02/16/2017)
137 TRIAL BRIEF of Former National Security Officials as amici curiae on behalf of Petitioners by Proposed Amici (Freiman, Jonathan) (Entered: 02/16/2017)
138 MOTION for Leave to Appear Pro Hac Vice for Muneer Ahmad. Filing fee $ 150, receipt number 0207-9299968. by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh. (Attachments: # 1 Certificates of Standing, # 2 Certificate of Service) (Wishnie, Michael) (Entered: 02/16/2017)
139 TRIAL BRIEF (Amended Brief of Association of American Universities as Amicus Curiae in Support of Petitioners' Requested Relief) by Association of American Universities (Tabak, Daniel) (Entered: 02/16/2017)
140 NOTICE by American Muslim Health Professionals, Muppies, Inc.,, Muslim Advocates, the Council for the Advancement of American Muslim Professionals, the Islamic Medical Association of North America, the National Arab American Medical Association, the Network of Arab-American Professionals Brief of Amici Curiae, Supporting Petitioners and Intervenor-Plaintiff (Ware, Anton) (Entered: 02/16/2017)
141 DECLARATION re 140 Notice(Other), of Anton A. Ware in Support of Brief of Amici Curiae Supporting Petitioners and Intervenor-Plaintiff by American Muslim Health Professionals, Muppies, Inc.,, Muslim Advocates, the Council for the Advancement of American Muslim Professionals, the Islamic Medical Association of North America, the National Arab American Medical Association, the Network of ArabAmerican Professionals (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15,

02/16/2017 02/16/2017
02/16/2017 02/16/2017 02/16/2017 02/16/2017 02/16/2017

# 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18) (Ware, Anton) (Entered: 02/16/2017)
142 Corporate Disclosure Statement by American Muslim Health Professionals, Muppies, Inc.,, Muslim Advocates, the Council for the Advancement of American Muslim Professionals, the Islamic Medical Association of North America, the National Arab American Medical Association, the Network of Arab-American Professionals (Ware, Anton) (Entered: 02/16/2017)
143 Letter re: additional amici by Yale-New Haven Hospital, American Academy of Pediatrics, American Association for Social Psychiatry, Greater New York Hospital Association., New York City Health & Hospitals Corporation, NYC Refugee and Asylee Coalition, Stanford University, Stanford Health Care, Lucile Packard Children's Hospital at Stanford, Massachusetts Health and Hospital Association, Association of Behavioral Healthcare, Colorado Coalition for the Medically Underserved, Allen S. Keller, Tyler B. Evans, Peter Selwyn, Carl Erik Fisher, Jerome A. Paulson, Dipesh Navsaria, Gene Bishop, Jennifer Kasper, Mark Earnest, Makini Chisolm-Straker, Elizabeth Singer, David Keller, Michele David, Esther K. Chung, Susana Morales, Kenneth Thompson, Courtney Orynich Gillenwater, Jeremy S. Boyd (Mayell, Manvin) (Entered: 02/16/2017)
144 Amicus Curiae APPEARANCE entered by Clarence William Phillips on behalf of Interfaith Coalition (Phillips, Clarence) (Entered: 02/16/2017)
145 Letter MOTION for Leave to File Amicus Brief by Interfaith Coalition. (Attachments: # 1 Amicus Brief of Interfaith Coalition) (Phillips, Clarence) (Entered: 02/16/2017)
146 RESPONSE in Opposition re 53 MOTION to Compel and Enforce Court Order filed by All Defendants. (Attachments: # 1 Exhibit A, Second Hoffman Declaration, # 2 Exhibit B, Giblin Declaration) (Platt, Steven) (Entered: 02/16/2017)
147 MEMORANDUM in Support re Order on Motion for Leave to File,,, Amicus Brief filed by Members of the Congress of the United States. (Karanjia, Peter) (Entered: 02/16/2017)
148 MOTION for Leave to Appear Pro Hac Vice of Robert D. Fram on behalf of Amici Curiae Interfaith Coalition Filing fee $ 150, receipt number 0207-9300072. by Interfaith Coalition. (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing, Supreme Court of the State of California, # 3 Certificate of Good Standing, District of Columbia Bar) (Fram, Robert) (Entered: 02/16/2017)

02/16/2017 02/16/2017 02/16/2017 02/16/2017
02/16/2017 02/16/2017 02/16/2017
02/16/2017

149 MOTION for Leave to Appear Pro Hac Vice by Karun Tilak on behalf of Amici Curiae Interfaith Coalition Filing fee $ 150, receipt number 0207-9300075. by Interfaith Coalition. (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing) (Tilak, Karun) (Entered: 02/16/2017)
150 MOTION for Leave to Appear Pro Hac Vice by Alexandra Grayner on behalf of Amici Curiae Interfaith Coalition Filing fee $ 150, receipt number 0207-9300083. by Interfaith Coalition. (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing) (Grayner, Alexandra) (Entered: 02/16/2017)
151 TRIAL BRIEF For Amicus Curiae Harvard Immigration And Refugee Clinical Program In Support Of Petitioners, filed by Harvard Immigration and Refugee Clinical Program (Bershteyn, Boris) (Entered: 02/16/2017)
152 TRIAL BRIEF of Amici Curiae by Arab American Association of New York, Brooklyn Defender Services, Immigrant Rights Clinic of Washington Square Legal Services, Legal Services NYC, Muslim Bar Association of New York, National Organization for Women New York State, New York Immigration Coalition, Tamizdat (Das, Alina) (Entered: 02/16/2017)
153 MOTION for Leave to Appear Pro Hac Vice by Andrew Guy on behalf of Amici Curiae Interfaith Coalition Filing fee $ 150, receipt number 0207-9300084. by Interfaith Coalition. (Attachments: # 1 Affidavit, # 2 Certificates of Good Standing) (Guy, Andrew) (Entered: 02/16/2017)
154 Corporate Disclosure Statement by Roderick & Solange MacArthur Justice Center (Ali, Amir) (Entered: 02/16/2017)
155 MOTION for Leave to Appear Pro Hac Vice by Ligia Markman on behalf of Amici Curiae Interfaith Coalition Filing fee $ 150, receipt number 0207-9300087. by Interfaith Coalition. (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing, D.C. Court of Appeals, # 3 Certificate of Good Standing, Maryland Court of Appeals) (Markman, Ligia) (Entered: 02/16/2017)
156 NOTICE by American Academy of Pediatrics, American Association for Social Psychiatry, Association of Behavioral Healthcare, Gene Bishop, Jeremy S. Boyd, Makini Chisolm-Straker, Esther K. Chung, Colorado Coalition for the Medically Underserved, Michele David, Mark Earnest, Tyler B. Evans, Courtney Orynich Gillenwater, Greater New York Hospital Association., Jennifer Kasper, Allen S. Keller, David Keller, Lucile Packard Children's Hospital at Stanford, Massachusetts Health and Hospital Association, Susana Morales, NYC Refugee and Asylee Coalition, Dipesh Navsaria, New York City Health & Hospitals Corporation, Jerome A. Paulson, Peter Selwyn, Elizabeth

02/16/2017 02/16/2017

Singer, Stanford Health Care, Stanford University, Kenneth Thompson, Yale-New Haven Hospital (Memorandum of Law on behalf of Amici Curiae Medical Institutions, Advocacy Organizations, and Individual Physicians in Support of Petitioners' Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief) (Attachments: # 1 Appendix) (Mayell, Manvin) (Entered: 02/16/2017)
157 Letter MOTION for Leave to File Brief Amici Curiae by Leading Companies. (Attachments: # 1 Attachment - BRIEF OF LEADING COMPANIES AS AMICI CURIAE IN SUPPORT OF THE RELIEF SOUGHT BY PETITIONERS) (Champion, Anne) (Entered: 02/16/2017)
158 Letter Motion for Leave to File Amicus Curiae Brief by African American Ministers Leadership Council, American Jewish World Service, Arlington Street Church, Avodah, Beloved Community Mennonite Church, Beth Emet The Free Synagogue, Catholic Charities Community Services, NY, Chicago Religious Leadership Network on Latin America, Clergy and Laity United for Economic Justice, Disciples Home Missions, Christian Church (Disciples of Christ) in the U.S., Dominican Sisters of the Congregation of the Queen of the Holy Rosary, First Congregational United Church of Christ, Phoenix, First Institutional Baptist Church of Phoenix, Franciscan Action Network, Franciscans for Justice, Good Shepherd United Church of Christ, HIAS, Interfaith Alliance, The Interfaith Center of New York, Jewish Council on Urban Affairs, Jewish Reconstructionist Congregation, Judson Memorial Church, Leadership Conference of Women Religious, Massachusetts Council of Churches, The Missionary Servants of the Most Holy Trinity, Multifaith Alliance for Syrian Refugees, National Council of Jewish Women, National Justice for Our Neighbors, NETWORK Lobby for Catholic Social Justice, North Carolina Council of Churches, NYC New Sanctuary Coalition, Park Slope Jewish Center, Rincon Congregational United Church of Christ, School Sisters of Saint Francis, United States Province, Scottsdale Congregational United Church of Christ, Shadow Rock United Church of Christ, Sisters of the Holy Names of Jesus and Mary, U.S.-Ontario Province, Sisters of Saint Dominic, Congregation of the Most Holy Name, Sisters of St. Francis of Clinton, Iowa, Sisters of St. Francis of Penance and Christian Charity, St. Francis Province, Sisters of St. Francis of Philadelphia, Sisters of St. Francis of Sylvania, Ohio, Southside Presbyterian Church, Southwest Conference of the United Church of Christ, Tanenbaum, T'ruah: The Rabbinic Call for Human Rights, Union for Reform Judaism, Central Conference of American Rabbis and Women of Reform Judaism, Unitarian Universalist Association, Unitarian Universalist Congregation of South County, Rhode Island, Unitarian Universalist Service Committee, United Church of Santa Fe, University Lutheran Chapel of

02/16/2017
02/16/2017 02/16/2017 02/17/2017 02/17/2017
02/17/2017 02/17/2017 02/17/2017 02/17/2017 02/17/2017

Berkeley, Valley Unitarian Universalist Congregation, Reverend J. Herbert Nelson, II, Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.) (Attachments: # 1 Exhibit A - Proposed Amicus Brief and Appendices) (Aikman, Amanda) (Entered: 02/16/2017)
159 RESPONSE in Opposition re 66 MOTION to Dismiss for Lack of Jurisdiction Motion to Dismiss for Failure to State a Claim and Opposition to Petitioners' Motion for a Preliminary Injunction filed by Plaintiffs Hameed Khalid Darweesh; Haider Sameer Abdulkhaleq Alshawi. (Attachments: # 1 Exhibit Espiritu Declaration Part 1, # 2 Exhibit Espiritu Declaration Part 2) (Gelernt, Lee) (Modified) (Entered: 02/16/2017)
160 TRIAL BRIEF of Amici Curiae by Coalition of Cities (Greenberg, Susan) (Entered: 02/16/2017)
161 TRIAL BRIEF of Amici Curiae by Coalition of Cities (Greenberg, Susan) (Entered: 02/16/2017)
162 First MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9300176. by Interfaith Coalition. (Attachments: # 1 Affidavit, # 2 Appendix) (Bi, Kathryn) (Entered: 02/17/2017)
163 ORDER re 88 Motion to Intervene by Vincent A. Molino, Pro Se. The Court accordingly denies Molino's motion to intervene in full. So Ordered by Judge Carol Bagley Amon on 2/16/2017. (Lee, Tiffeny) (Entered: 02/17/2017)
164 Amicus Curiae APPEARANCE entered by Peter Karanjia on behalf of Members of the Congress of the United States (Karanjia, Peter) (Entered: 02/17/2017)
Email Notification Test - DO NOT REPLY (Layne, Monique) (Entered: 02/17/2017)
165 Letter re: additional amici by Interfaith Coalition (Phillips, Clarence) (Entered: 02/17/2017)
166 NOTICE of Appearance by Lourdes Maria Rosado on behalf of The New York State Office of the Attorney General (aty to be noticed) (Rosado, Lourdes) (Entered: 02/17/2017)
167 Letter dated February 17, 2017 from Manvin S. Mayell, by American Academy of Pediatrics, American Association for Social Psychiatry, Association of Behavioral Healthcare, Gene Bishop, Jeremy S. Boyd, Makini Chisolm-Straker, Esther K. Chung, Colorado Coalition for the Medically Underserved, Michele David, Mark Earnest, Tyler B. Evans, Courtney Orynich Gillenwater, Greater New York Hospital Association.,

02/17/2017 02/17/2017 02/17/2017
02/17/2017

Jennifer Kasper, Allen S. Keller, David Keller, Lucile Packard Children's Hospital at Stanford, Massachusetts Health and Hospital Association, Susana Morales, NYC Refugee and Asylee Coalition, Dipesh Navsaria, New York City Health & Hospitals Corporation, Jerome A. Paulson, Peter Selwyn, Elizabeth Singer, Stanford Health Care, Stanford University, Kenneth Thompson, Yale-New Haven Hospital (Mayell, Manvin) (Entered: 02/17/2017)
168 TRIAL BRIEF (Amended) with Motions by International Law Scholars and Nongovernmental Organizations (Fellmeth, Aaron) (Entered: 02/17/2017)
ORDER: The respondents' reply on the motion to dismiss is due February 19, 2017 at 2:00 pm, and the petitioners' reply on the application for an order returning persons removed is due February 20, 2017 at 2:00 pm. So Ordered by Judge Carol Bagley Amon on 2/17/2017. (Entered: 02/17/2017)
169 Joint MOTION to Stay re Set Deadlines/Hearings, Set Hearings, re Petitioners' Motion for a Preliminary Injunction and Respondents' Motion to Dismiss by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS"). (Platt, Steven) (Entered: 02/17/2017)
ORDER granting 169 Motion to Stay: On February 17, 2017, the parties jointly requested that the Court stay proceedings related to petitioners' motion for a preliminary injunction and respondents' motion to dismiss, and further stay respondents' February 19, 2017 deadline to file a brief in conjunction with those motions. The parties also requested that the Court cancel a hearing on those motions scheduled for February 21, 2017 at 10:00 a.m. These applications are granted.The parties have advised the Court, however, that they disagree as to whether the January 28, 2017 injunction should continue past its current expiration date of February 21, 2017. Petitioners request that if the injunction is not extended past February 21, 2017, and if the Court believes that the injunction in Washington et al. v. Trump et al. provides sufficient protection, then petitioners would request that the January 28, 2017 injunction be reinstated if the Washington injunction is vacated. Respondents have not opposed this specific application. This Court believes that the injunction in Washington et al. v. Trump et al. provides more than sufficient protection for the petitioners in this case. Accordingly, the January 28, 2017 injunction in this case is not extended beyond February 21, 2017, but will be reinstated if the Washington injunction is vacated and the January 27, 2017 Executive Order is still in effect. In that eventuality, the Court will schedule a prompt hearing on whether the January 28, 2017 injunction should be extended. Petitioners' reply brief regarding

02/20/2017 02/20/2017 02/20/2017 02/21/2017
02/21/2017 02/21/2017

the 53 Motion to Compel and Enforce Court Order remains due on February 20, 2017 at 2:00 p.m., and the hearing on that motion remains set for February 24, 2017 at 10:00 a.m. in Courtroom 10D South before Judge Carol Bagley Amon. So Ordered by Judge Carol Bagley Amon on 2/17/2017. (Entered: 02/17/2017)
170 Letter Requesting Reconsideration of Law Student Appearances by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh (Wishnie, Michael) Modified on 8/14/2017 (Fernandez, Erica). (Entered: 02/20/2017)
171 REPLY in Support re 53 MOTION to Compel and Enforce Court Order By Compelling Return of Individuals Removed filed by Plaintiffs Hameed Khalid Darweesh; Haider Sameer Abdulkhaleq Alshawi. (Tumlin, Karen) (Modified) (Entered: 02/20/2017)
ORDER granting 138 Motion for Leave to Appear Pro Hac Vice. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office. So Ordered by Judge Carol Bagley Amon on 2/20/2017. (Entered: 02/20/2017)
ORDER granting 34 Motion for Leave to Appear Pro Hac Vice. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office. So Ordered by Judge Carol Bagley Amon on 2/21/2017. (Sessions, Matthew) (Entered: 02/21/2017)
ORDER granting 89 Motion for Leave to Appear Pro Hac Vice. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office. So Ordered by Judge Carol Bagley Amon on 2/21/2017. (Entered: 02/21/2017)
ORDER granting 95 Motion for Leave to Appear Pro Hac Vice. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office. So Ordered by Judge Carol Bagley Amon on 2/21/2017. (Entered: 02/21/2017)

02/21/2017 02/21/2017 02/21/2017 02/21/2017 02/21/2017 02/21/2017 02/21/2017

ORDER granting 96 Motion for Leave to Appear Pro Hac Vice. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office. So Ordered by Judge Carol Bagley Amon on 2/21/2017. (Entered: 02/21/2017)
ORDER granting 97 Motion for Leave to Appear Pro Hac Vice. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office. So Ordered by Judge Carol Bagley Amon on 2/21/2017. (Entered: 02/21/2017)
ORDER granting 98 Motion for Leave to Appear Pro Hac Vice. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office. So Ordered by Judge Carol Bagley Amon on 2/21/2017. (Entered: 02/21/2017)
ORDER granting 101 Motion for Leave to Appear Pro Hac Vice. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office. So Ordered by Judge Carol Bagley Amon on 2/21/2017. (Entered: 02/21/2017)
ORDER granting 117 Motion for Leave to Appear Pro Hac Vice. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office. So Ordered by Judge Carol Bagley Amon on 2/21/2017. (Entered: 02/21/2017)
ORDER granting 126 132 145 157 Motions for Leave to File. So Ordered by Judge Carol Bagley Amon on 2/21/2017. (Entered: 02/21/2017)
ORDER granting 155 Motion for Leave to Appear Pro Hac Vice. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of

02/21/2017 02/21/2017
02/21/2017
02/21/2017 02/21/2017 02/22/2017 02/22/2017

activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office. So Ordered by Judge Carol Bagley Amon on 2/21/2017. (Entered: 02/21/2017)
172 NOTICE of Appearance by Muneer Ahmad on behalf of Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh (aty to be noticed) (Ahmad, Muneer) (Entered: 02/21/2017)
ORDER granting 67 Motion for Leave to Appear Pro Hac Vice. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office. So Ordered by Judge Carol Bagley Amon on 2/21/2017. (Entered: 02/21/2017)
173 ORDER re 53 MOTION to Compel and Enforce Court Order filed by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh: Accordingly, Respondents are ordered to provide Petitioners, by February 23, 2017 at 5:00 PM, with a list of all individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States (i.e. putative class members) who, at any time during the period from 9:37 PM on January 28, 2017 until 11:59 PM on January 29, 2017, were being held, including being processed, by U.S. Customs and Border Protection pursuant to the EO. Ordered by Judge Carol Bagley Amon on 2/21/2017. (Fernandez, Erica) (Entered: 02/21/2017)
174 NOTICE of Appearance by Joshua Samuel Press on behalf of All Defendants (aty to be noticed) (Press, Joshua) (Entered: 02/21/2017)
182 MOTION for leave to allow Pro Se to Electronically File /Motion of Pro Se (Prospective) Professor Victor Williams to File Electronically by Victor Williams. (Lee, Tiffeny) (Entered: 02/27/2017)
175 NOTICE of Appearance by Elizabeth S. Saylor on behalf of Common Defense, No One Left Behind, Vets for American Ideals (aty to be noticed) (Saylor, Elizabeth) (Entered: 02/22/2017)
176 MOTION for Leave to Appear Pro Hac Vice on behalf of Justin B. Cox Filing fee $ 150, receipt number 0207-9311207. by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh. (Attachments: # 1 Affidavit in Support, # 2 Certificates of Good Standing) (Cox, Justin) (Entered: 02/22/2017)

02/23/2017 02/23/2017 02/23/2017 02/23/2017 02/23/2017 02/24/2017
02/27/2017

177 MOTION to Intervene Pursuant to F.R.C.P. 24 by Vincent A. Molino. (Fernandez, Erica) (Entered: 02/23/2017)
178 STATUS REPORT by Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS") (Go, Samuel) (Entered: 02/23/2017)
179 Joint MOTION for Protective Order by Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS"). (Attachments: # 1 Proposed Order) (Go, Samuel) (Entered: 02/23/2017)
180 STATUS REPORT by Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS") (Go, Samuel) (Entered: 02/23/2017)
181 ORDER granting 179 Motion for Protective Order. So Ordered by Judge Carol Bagley Amon on 2/23/2017. (Entered: 02/23/2017)
Minute Entry for proceedings held before Judge Carol Bagley Amon: Oral argument held on February 24, 2017 re 53 . Appearances: for Petitioners - Muneer Ahmad, Michael Wishnie, Lee Gelernt, Karen Tumlin, Becca Heller; for Intervenor Plaintiff - Anjana Samant, Lourdes Rosado; for Respondents - Joshua Press, Steven Platt. As stated on the record, Respondents will inform counsel for Petitioner as to which individuals on the list that was recently provided were admitted into the United States. Petitioners' counsel will provide Respondents with a list of names of individuals that they believe were not included on the list so that the Respondents may investigate the matter. Counsel for Respondents and Intervenor Plaintiff requested to adjourn the present briefing schedule regarding a potential motion to dismiss the Intervenor Plaintiff's complaint. The request was granted. The parties will submit a new briefing schedule, if necessary, within seven days after a new Executive Order is issued. (Court Reporter Michelle Lucchese.) (Entered: 02/24/2017)
183 NOTICE of Appearance by Amanda Aikman on behalf of African American Ministers Leadership Council, American Jewish World Service, Arlington Street Church, Avodah, Beloved Community Mennonite Church, Beth Emet The Free Synagogue, Catholic Charities Community Services, NY, Chicago Religious Leadership Network on Latin America, Clergy and Laity United for Economic Justice, Disciples Home Missions, Christian Church (Disciples of Christ) in the U.S., Dominican Sisters of the Congregation of the Queen of the Holy Rosary, First Congregational United Church of Christ, Phoenix, First Institutional Baptist Church of Phoenix, Franciscan Action Network, Franciscans for Justice, Good Shepherd United Church of Christ, HIAS, Interfaith Alliance, Jewish Council on Urban Affairs, Jewish

02/27/2017 02/28/2017 02/28/2017 03/01/2017 03/06/2017

Reconstructionist Congregation, Judson Memorial Church, Leadership Conference of Women Religious, Massachusetts Council of Churches, Multifaith Alliance for Syrian Refugees, NETWORK Lobby for Catholic Social Justice, NYC New Sanctuary Coalition, National Council of Jewish Women, National Justice for Our Neighbors, North Carolina Council of Churches, Park Slope Jewish Center, Reverend J. Herbert Nelson, II, Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.), Rincon Congregational United Church of Christ, School Sisters of Saint Francis, United States Province, Scottsdale Congregational United Church of Christ, Shadow Rock United Church of Christ, Sisters of Saint Dominic, Congregation of the Most Holy Name, Sisters of St. Francis of Clinton, Iowa, Sisters of St. Francis of Penance and Christian Charity, St. Francis Province, Sisters of St. Francis of Philadelphia, Sisters of St. Francis of Sylvania, Ohio, Sisters of the Holy Names of Jesus and Mary, U.S.-Ontario Province, Southside Presbyterian Church, Southwest Conference of the United Church of Christ, T'ruah: The Rabbinic Call for Human Rights, Tanenbaum, The Interfaith Center of New York, The Missionary Servants of the Most Holy Trinity, Union for Reform Judaism, Central Conference of American Rabbis and Women of Reform Judaism, Unitarian Universalist Association, Unitarian Universalist Congregation of South County, Rhode Island, Unitarian Universalist Service Committee, United Church of Santa Fe, University Lutheran Chapel of Berkeley, Valley Unitarian Universalist Congregation (aty to be noticed) (Aikman, Amanda) (Entered: 02/27/2017)
187 MOTION for Leave to File An Amicus Brief by Victor Williams. (Attachments: # 1 Proposed Amicus Brief, # 2 Cover Letter) (Lee, Tiffeny) (Entered: 03/01/2017)
184 NOTICE of Appearance by Esther Sung on behalf of Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh (notification declined or already on case) (Sung, Esther) (Entered: 02/28/2017)
185 NOTICE of Appearance by Melissa S. Keaney on behalf of Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh (notification declined or already on case) (Keaney, Melissa) (Entered: 02/28/2017)
186 NOTICE of Appearance by Aaron Fellmeth on behalf of International Law Scholars and Nongovernmental Organizations (notification declined or already on case) (Fellmeth, Aaron) (Entered: 03/01/2017)
188 NOTICE by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS") re 2 Notice(Other) of New Executive Order which Supersedes the Executive Order of January 27,

03/07/2017 03/09/2017 03/13/2017
03/15/2017 03/20/2017 03/20/2017
03/27/2017 03/28/2017 04/17/2017 04/18/2017

2017 (Attachments: # 1 Exhibit A - New Executive Order) (Platt, Steven) (Entered: 03/06/2017)
ORDER granting 187 Motion for Leave to File an Amicus Brief. So ordered by Judge Carol Bagley Amon on March 7, 2017. (Entered: 03/07/2017)
189 Letter to the Court by The New York State Office of the Attorney General (Khan, Sania) (Entered: 03/09/2017)
190 Letter re: Briefing Schedule by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS") (Platt, Steven) Modified on 3/15/2017 (Marziliano, August). (Entered: 03/13/2017)
191 ENDORSED ORDER granting 190 Motion to Stay (Marziliano, August) Modified on 3/24/2017 (Mahoney, Brenna). (Entered: 03/15/2017)
192 NOTICE by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh re 100 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9296706. [CERTIFICATE OF GOOD STANDING] (Townsend, Tahlia) (Entered: 03/20/2017)
193 NOTICE by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh re 100 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9296706. CERTIFICATE OF GOOD STANDING from Supreme Court of the State of Connecticut(Townsend, Tahlia) (Entered: 03/20/2017)
194 Letter MOTION to Stay Case for 21 Days by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS"). (Platt, Steven) (Entered: 03/27/2017)
195 ORDER granting 194 Motion to Stay: Application granted. Parties request that the Court stay this case for an additional twenty-one days, until April 17, 2017. Ordered by Judge Carol Bagley Amon on 3/27/2017. (Fernandez, Erica) (Entered: 03/28/2017)
196 Letter MOTION to Stay Case for 14 Days by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS"). (Platt, Steven) (Entered: 04/17/2017)
197 ORDER granting 196 Motion: Parties request that the Court stay this case for an additional fourteen days, until May 1, 2017; Application granted. Ordered by Judge Carol Bagley Amon on 4/17/2017. (Fernandez, Erica) (Entered: 04/18/2017)

05/01/2017 05/01/2017 05/08/2017 05/10/2017
05/10/2017 05/10/2017
05/19/2017

198 Letter Requesting Status Conference by Hameed Khalid Darweesh (Ahmad, Muneer) (Entered: 05/01/2017)
199 Letter MOTION for Leave to File a Renewed Motion to Dismiss by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS"). (Platt, Steven) (Entered: 05/01/2017)
SCHEDULING ORDER: The Court will hold a telephonic status conference on May 10, 2017 at 11:00 a.m. before Judge Carol Bagley Amon. Plaintiffs' counsel is directed to coordinate the call to chambers at (718) 613-2410. (Entered: 05/08/2017)
Minute Entry for proceedings held before Judge Carol Bagley Amon: Status Conference held on May 10, 2017. Appearances: for petitioners Lee Gelernt, Muneer Ahmad, Michael Wishnie, Justin Cox, Omar Jadwat, Christopher Dunn, Ruben Loyo; for respondents - Joshua Press, Steven Platt, Gisela Westwater. As stated on the record, the parties discussed the status of their settlement discussions. The parties agreed to engage in a settlement conference before Magistrate Judge Lois Bloom. (Court Reporter Lisa Schmid.) (Entered: 05/10/2017)
CASE REFERRED to Magistrate Judge Lois Bloom for settlement conference pursuant to parties' agreement before Judge Amon in status conference on May 10, 2017. (Mahoney, Brenna) (Entered: 05/10/2017)
SCHEDULING ORDER: The Court shall hold a pre-mediation telephone conference on May 19, 2017 at 12:00 p.m. Defendants' counsel is requested to arrange and initiate the conference call at that time. After contacting plaintiffs' counsel, defendants' counsel shall call the Court at 718-613-2170. The Court shall hold a settlement conference on May 26, 2017 at 11:00 a.m. in Courtroom 11A South of the United States Courthouse, 225 Cadman Plaza East, Brooklyn, New York. The parties shall exchange specific settlement demands and offers before the settlement conference. The parties shall fax ex-parte confidential settlement statements setting forth the legal and factual basis for their settlement positions and their most recent best faith demands and offers to the Court at 718-613-2175 by 5:00 p.m. on May 22, 2017. The parties are advised that they must contact each other before making any request for an adjournment to the Court. A request for an adjournment must be received in writing at least forty-eight (48) hours before the scheduled conference. Ordered by Magistrate Judge Lois Bloom on 5/10/2017. (Doody, Sara) (Entered: 05/10/2017)
Minute Entry for pre-mediation telephone conference held before Magistrate Judge Lois Bloom on 5/19/2017. (Tape #12:04 - 12:35.) (Doody, Sara) (Entered: 05/19/2017)

05/19/2017
05/22/2017 05/22/2017 05/22/2017 05/26/2017 05/26/2017

ORDER: The Court held a pre-mediation telephone conference in petitioners' case on May 19, 2017. As reflected in my May 10, 2017 Order, counsel for petitioners and respondents shall appear on May 26, 2017 at 11:00 a.m. in Courtroom 11A South of the United States Courthouse, 225 Cadman Plaza East, Brooklyn, New York, for a settlement conference. Counsel for petitioners and respondents shall have someone with full settlement authority preferably in Court, but if that is not possible, available by telephone throughout the conference. The parties shall fax their ex-parte confidential settlement statements setting forth the legal and factual basis for their settlement positions and their most recent best faith demands and offers to the Court at 718-6132175 by 5:00 p.m. on May 22, 2017. The confidential settlement statements shall state who will attend the settlement conference, including those individuals who will be available to the Court by telephone. Any attorney who has not yet filed a notice of appearance shall do so immediately. Ordered by Magistrate Judge Lois Bloom on 5/19/2017. (Doody, Sara) (Entered: 05/19/2017)
200 Letter MOTION for Extension of Time to File Respondents' Ex Parte Confidential Settlement Statement by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS"). (Platt, Steven) (Entered: 05/22/2017)
ORDER granting 200 Motion for Extension of Time to File: Respondents request an extension of today's 5:00 p.m. deadline to fax their ex-parte confidential settlement statement. (ECF No. 200.) The request is granted. Respondents shall fax their ex-parte confidential settlement statement to the Court by 3:00 p.m. on Tuesday, May 23, 2017. No further extension will be considered. Ordered by Magistrate Judge Lois Bloom on 5/22/2017. (Doody, Sara) (Entered: 05/22/2017)
201 NOTICE of Appearance by Gisela Westwater on behalf of All Defendants (aty to be noticed) (Westwater, Gisela) (Entered: 05/22/2017)
SCHEDULING ORDER: The Court held a settlement conference in this action today and the Court shall hold a follow-up settlement conference on June 5, 2017 at 10:00 a.m. in Courtroom 11A South of the United States Courthouse, 225 Cadman Plaza East, Brooklyn, New York. Ordered by Magistrate Judge Lois Bloom on 5/26/2017. (Doody, Sara) (Entered: 05/26/2017)
Minute Entry for settlement conference held before Magistrate Judge Lois Bloom on 5/26/2017. (Tape #11:06 - 5:15.) (Doody, Sara) (Entered: 05/26/2017)

05/30/2017 05/31/2017
06/01/2017 06/01/2017 06/01/2017

202 Letter MOTION to Adjourn Conference until June 12, 2017 by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS"). (Platt, Steven) (Entered: 05/30/2017)
ORDER granting 202 Motion to Adjourn Conference: Respondents write to request an adjournment of the June 5, 2017 follow-up settlement conference. (ECF No. 202 .) The Court is not pleased with respondents' request as this date was chosen with all parties present and to accommodate all parties' schedules. Nevertheless, the Court will grant a short adjournment so the parties are fully prepared. The Court shall hold a follow-up settlement conference on June 7, 2017 at 12:00 p.m. The parties shall appear at that time in Courtroom 11A South of the United States Courthouse, 225 Cadman Plaza East, Brooklyn, New York. To make the conference an efficient use of our time, the Court expects that those who were in attendance at the May 26, 2017 settlement conference to attend on June 7, 2017. The parties shall notify me by June 5, 2017 if there will be any change in who will be present. The Court urges the parties to focus their efforts on resolution. Ordered by Magistrate Judge Lois Bloom on 5/31/2017. (Doody, Sara) (Entered: 05/31/2017)
ORDER granting 176 Motion for Leave to Appear Pro Hac Vice. The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office via filing the event Pro Hac Vice Filing Fee . So Ordered by Judge Carol Bagley Amon on 6/1/2017. (Entered: 06/01/2017)
ORDER granting 100 Motion for Leave to Appear Pro Hac Vice The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the $150 admission fee be submitted to the Clerks Office via filing the event Pro Hac Vice Filing Fee . So Ordered by Judge Carol Bagley Amon on 6/1/2017. (Entered: 06/01/2017)
ORDER granting 110 Motion for Leave to Appear Pro Hac Vice The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorney shall ensure that the @150 admission fee be submitted to the Clerks Office via filing the event Pro Hac Vice Filing Fee . So Ordered by Judge Carol Bagley Amon on 6/1/2017. (Entered: 06/01/2017)

06/01/2017
06/01/2017 06/06/2017 06/06/2017
06/07/2017 06/08/2017 06/15/2017 06/16/2017

ORDER granting 148 149 150 153 162 Motions for Leave to Appear Pro Hac Vice. The attorneys shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorneys shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case. Also, the attorneys shall ensure that the $150 admission fee be submitted to the Clerks Office via filing the event Pro Hac Vice Filing Fee . So Ordered by Judge Carol Bagley Amon on 6/1/2017. (Entered: 06/01/2017)
203 NOTICE of Appearance by Justin B. Cox on behalf of Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh (notification declined or already on case) (Cox, Justin) (Entered: 06/01/2017)
Minute Entry for telephone conference held before Magistrate Judge Lois Bloom on 6/6/2017. (Tape #2:04 - 2:25.) (Doody, Sara) (Entered: 06/06/2017)
ORDER: The Court held a telephone conference in this case on June 6, 2017, after receiving respondents' request to adjourn tomorrow's settlement conference in a confidential settlement statement. The June 7, 2017 settlement conference is adjourned. By June 14, 2017, the parties shall write to the Court to propose dates for the follow-up settlement conference. The proposed dates should work for all parties. The parties are directed to file any future request for an adjournment on the docket as required by my individual rules. Ordered by Magistrate Judge Lois Bloom on 6/6/2017. (Doody, Sara) (Entered: 06/06/2017)
204 NOTICE by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS") Jointly Proposing Dates for a Follow-Up Settlement Conference (Platt, Steven) (Entered: 06/07/2017)
SCHEDULING ORDER: The parties filed a joint letter proposing dates for a follow-up settlement conference. (ECF No. 204 .) The Court shall hold a settlement conference on Monday, June 19, 2017 at 11:00 a.m. in Courtroom 11A South of the United States Courthouse, 225 Cadman Plaza East, Brooklyn, New York. Ordered by Magistrate Judge Lois Bloom on 6/8/2017. (Doody, Sara) (Entered: 06/08/2017)
205 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0207-9606498. by Hameed Khalid Darweesh. (Attachments: # 1 Affidavit Affidavit of Movant, # 2 Exhibit Certificate of Good Standing) (Poellot, Stephen) (Entered: 06/15/2017)
206 ORDER, granting 205 Motion for Leave to Appear Pro Hac Vice. The admitted attorney Stephen Thomas Poellot is permitted to appear as counsel and advocate pro hac vice in this case for Petitioners Hameed

06/19/2017 06/19/2017 06/19/2017 06/23/2017
06/23/2017 06/26/2017

Khalid Darweesh, et. al. SO ORDERED by Magistrate Judge Lois Bloom, on 6/16/2017. (The attorney shall register for ECF, registration is available online at the NYEDs homepage. Once registered, the attorney shall file a notice of appearance and ensure that s/he receives electronic notification of activity in this case.)(Latka-Mucha, Wieslawa) (Entered: 06/16/2017)
207 NOTICE of Appearance by Stephen T. Poellot on behalf of Hameed Khalid Darweesh (notification declined or already on case) (Poellot, Stephen) (Entered: 06/19/2017)
Minute Entry for settlement conference held before Magistrate Judge Lois Bloom on 6/19/2017. (Tape #11:10-11:13; 3:23-3:25.) (Doody, Sara) (Entered: 06/19/2017)
ORDER: The Court held a follow-up settlement conference in this case on June 19, 2017, but the parties were unable to reach a resolution. As both sides stated the previously-briefed motion to dismiss is stale, the parties shall file a proposed briefing schedule in accordance with Judge Amon's individual rules by June 26, 2017. The parties are strongly encouraged to continue discussing settlement. Ordered by Magistrate Judge Lois Bloom on 6/19/2017. (Doody, Sara) (Entered: 06/19/2017)
208 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 05/10/2017, before Judge Carol Amon. Court Reporter/Transcriber Lisa Schmid, Telephone number (718)613-2644. Email address: LisaSchmidCCR.RMR@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 7/14/2017. Redacted Transcript Deadline set for 7/24/2017. Release of Transcript Restriction set for 9/21/2017. (Schmid, Lisa) (Entered: 06/23/2017)
209 Joint MOTION for Extension of Time to File Proposed Briefing Schedule by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS"). (Platt, Steven) (Entered: 06/23/2017)
ORDER granting 209 Motion for Extension of Time to File: The parties' request an extension of time to file a proposed briefing schedule. (ECF No. 209.) The request is granted. The parties shall file a proposed briefing schedule by July 10, 2017. The Court commends the parties for continuing their settlement discussions. Ordered by Magistrate Judge Lois Bloom on 6/26/2017. (Doody, Sara) (Entered: 06/26/2017)

07/07/2017
07/10/2017 07/11/2017
07/11/2017 07/13/2017 07/13/2017 07/17/2017

SCHEDULING ORDER: The Court shall hold a telephone status conference in this matter on July 13, 2017 at 9:30 a.m. Petitioners' counsel is requested to arrange and initiate the conference call at that time. After establishing contact with respondents' counsel, petitioners' counsel shall contact the Court at (718) 613-2170. Parties are advised that they must contact each other before making any request for an adjournment to the Court. A request for an adjournment must be received in writing at least forty-eight (48) hours before the scheduled conference. Ordered by Magistrate Judge Lois Bloom on 7/7/2017. (Doody, Sara) (Entered: 07/07/2017)
210 Joint MOTION for Extension of Time to File Proposed Briefing Schedule by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh. (Ahmad, Muneer) (Entered: 07/10/2017)
211 MOTION to Withdraw as Attorney Erica L. Ross by Brown University, Carnegie Mellon University, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Harvard University, Johns Hopkins University, Massachusetts Institute of Technology, Northwestern University, Princeton University, Stanford University, University of Chicago, University of Pennsylvania, Vanderbilt University, Yale Univeristy. (Attachments: # 1 Proposed Order) (Ross, Erica) (Entered: 07/11/2017)
212 ORDER granting 210 Motion for Extension of Time to File; Parties request that the Court extend the deadline to file a proposed briefing schedule for an additional seven days, until July 17, 2017. Application granted. Ordered by Judge Carol Bagley Amon on 7/10/2017. (Fernandez, Erica) (Entered: 07/11/2017)
Minute Entry for telephone conference before Magistrate Judge Lois Bloom on 7/13/2017. (Tape #9:34 - 9:44; 10:04.) (Doody, Sara) (Entered: 07/13/2017)
SCHEDULING ORDER: The Court held a telephone conference in this case on July 13, 2017. The Court shall hold a follow-up telephone conference on July 17, 2017 at 12:30 p.m. Petitioners' counsel is requested to arrange and initiate the conference call at that time. After establishing contact with respondents' counsel, petitioners' counsel shall contact the Court at (718) 613-2170. Ordered by Magistrate Judge Lois Bloom on 7/13/2017. (Doody, Sara) (Entered: 07/13/2017)
ORDER granting 211 Motion to Withdraw as Attorney: Attorney Erica L. Ross' Motion to Withdraw as counsel for amici Brown University, Carnegie Mellon University, University of Chicago, Columbia University, Cornell University, Dartmouth College, Duke University, Emory University, Harvard University, Johns Hopkins University, Massachusetts Institute of Technology, Northwestern University,

07/17/2017 07/17/2017
07/18/2017
07/25/2017 07/25/2017

University of Pennsylvania, Princeton University, Stanford University, Vanderbilt University, and Yale University is hereby granted. The Clerk of Court is directed to terminate Ms. Ross' representation. Ordered by Magistrate Judge Lois Bloom on 7/17/2017. (Doody, Sara) (Entered: 07/17/2017)
Minute Entry for telephone conference held before Magistrate Judge Lois Bloom on 7/17/2017. (Tape #12:35-12:38; 1:11-1:12.) (Doody, Sara) (Entered: 07/17/2017)
SCHEDULING ORDER: The Court held a telephone conference in this case on July 17, 2017. The Court obtained consent from both parties to speak off the record during the conference to address the ongoing negotiations between the parties. Respondents' counsel shall propose a counteroffer to petitioners' counsel by July 21, 2017. The Court shall hold a follow-up telephone conference on July 25, 2017 at 12:00 p.m. Petitioners' counsel is requested to arrange and initiate the conference call at that time. After establishing contact with respondents' counsel, petitioners' counsel shall contact the Court at (718) 613-2170. The Court stays the parties' deadline to submit a briefing schedule for respondents' anticipated motion to dismiss pending the July 25, 2017 telephone conference. Ordered by Magistrate Judge Lois Bloom on 7/17/2017. (Doody, Sara) (Entered: 07/17/2017)
213 TRANSCRIPT of Proceedings held on June 6, 2017, before Judge Bloom. Court Reporter/Transcriber Fiore Reporting and Transcription Service, Inc., Telephone number 203-929-9992. Email address: cmfiore@sbcglobal.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 8/8/2017. Redacted Transcript Deadline set for 8/18/2017. Release of Transcript Restriction set for 10/16/2017. (Hong, Loan) (Entered: 07/18/2017)
Minute Entry for telephone conference held before Magistrate Judge Lois Bloom on 7/25/2017. (Tape #12:10-12:13; 1:54-1:55.) (Doody, Sara) (Entered: 07/25/2017)
SCHEDULING ORDER: The Court held a telephone conference in this matter on July 25, 2017. The Court shall hold a settlement conference on August 28, 2017 at 11:00 a.m. in Courtroom 11A South of the United States Courthouse, 225 Cadman Plaza East, Brooklyn, New York. The parties shall discuss their positions before the settlement conference. The parties shall fax ex-parte confidential settlement statements setting forth their most recent best faith demands and offers to the Court at 718-613-

08/07/2017 08/12/2017
08/15/2017 08/15/2017
08/16/2017 08/28/2017 08/28/2017

2175 by Noon on August 23, 2017. Ordered by Magistrate Judge Lois Bloom on 7/25/2017. (Doody, Sara) (Entered: 07/25/2017)
214 NOTICE of Change of Address by Justin B. Cox (Cox, Justin) (Entered: 08/07/2017)
215 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 2/24/2017, before Judge Carol B. Amon. Court Reporter/Transcriber Michele Lucchese, Telephone number 718-6132272. Email address: michsassy21@ymail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 9/4/2017. Redacted Transcript Deadline set for 9/12/2017. Release of Transcript Restriction set for 11/10/2017. (Lucchese, Michele) (Entered: 08/12/2017)
ORDER denying 170 Letter Motion Requesting Reconsideration of Law Student Appearances: The motion for reconsideration is DENIED as LARGELY MOOT. So Ordered by Judge Carol Bagley Amon on August 15, 2017. (Entered: 08/15/2017)
ORDER deferring ruling on 4 Motion to Certify Class: Pursuant to the Court's inherent power to issue stays sua sponte, see, e.g., Clinton v. Jones, 520 U.S. 681, 706 (1997); City of N.Y. v. Gutlove & Shirvint, Inc., No. 08-CV-1372 (CBA), 2008 WL 4862697, at *1 (E.D.N.Y. Nov. 10, 2008), the Court hereby STAYS motion practice and DEFERS RULING on the class certification motion while the parties are engaged in settlement negotiations. So Ordered by Judge Carol Bagley Amon on August 15, 2017. (Entered: 08/15/2017)
216 ORDER denying 177 Motion to Intervene: The Court accordingly DENIES Molino's motion to intervene pursuant to Rule 24. Ordered by Judge Carol Bagley Amon on 8/15/2017. (Fernandez, Erica) (Entered: 08/16/2017)
Minute Entry for settlement conference held before Magistrate Judge Lois Bloom on 8/28/2017. (FTR Log #11:10-11:14; 7:14-7:16.) (Doody, Sara) (Entered: 08/28/2017)
SCHEDULING ORDER: The Court held a settlement conference today. The parties continue to discuss settlement. The Court shall hold a telephone conference on August 29, 2017 at 4:45 p.m. Respondents' counsel shall arrange and initiate the conference call. After establishing contact with petitioners' counsel, respondents' counsel shall contact the

08/29/2017 08/29/2017
08/31/2017 08/31/2017 09/01/2017
09/01/2017 09/20/2017

Court at (718) 613-2170. Ordered by Magistrate Judge Lois Bloom on 8/28/2017. (Doody, Sara) (Entered: 08/28/2017)
Minute Entry for telephone conference held before Magistrate Judge Lois Bloom on 8/29/2017. (FTR Log #5:05-5:07; 5:21-5:24.) (Doody, Sara) (Entered: 08/29/2017)
SCHEDULING ORDER: The Court held a telephone conference in this case on August 29, 2017. The parties stated that they have reached a settlement in principle. The Court shall hold a conference on August 31, 2017 at 3:00 p.m. in Courtroom 11A South, 225 Cadman Plaza East, Brooklyn, New York, so that the settlement agreement may be confirmed in open court. The parties may appear for the conference by telephone. Ordered by Magistrate Judge Lois Bloom on 8/29/2017. (Doody, Sara) (Entered: 08/29/2017)
Minute Entry for conference held before Magistrate Judge Lois Bloom on 8/31/2017. (FTR Log #3:04 - 3:15; 4:05 - 4:16.) (Doody, Sara) (Entered: 08/31/2017)
ORDER: The Court held a conference in this case on August 31, 2017. The parties entered the terms of the settlement agreement on the record. The Court directed the parties to file the settlement agreement and stipulation of dismissal by noon tomorrow. A copy of the transcript of today's conference has been ordered and shall be made part of the Court's record. Ordered by Magistrate Judge Lois Bloom on 8/31/2017. (Doody, Sara) (Entered: 08/31/2017)
217 TRANSCRIPT of Proceedings held on August 31, 2017, before Judge Bloom. Court Transcriber: TypeWrite Word Processing Service, Telephone number 518-581-8973. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request - Transcript" located under "Other Filings - Other Documents". Redaction Request due 9/22/2017. Redacted Transcript Deadline set for 10/2/2017. Release of Transcript Restriction set for 11/30/2017. (Rocco, Christine) (Main Document 217 replaced on 9/1/2017) (Rocco, Christine). (Entered: 09/01/2017)
218 SETTLEMENT AGREEMENT , Signed by All Parties, by John Kelly, Jamea T. Madden, Kevin K. McAleenan, Donald J Trump, U.S. Customs and Border Protection ("CBP"), U.S. Department of Homeland Security ("DHS") (Attachments: # 1 Settlement Agreement) (Platt, Steven) (Entered: 09/01/2017)
219 STIPULATION of Dismissal by Haider Sameer Abdulkhaleq Alshawi, Hameed Khalid Darweesh (Ahmad, Muneer) (Entered: 09/20/2017)

09/21/2017

220 STIPULATION OF VOLUNTARY DISMISSAL PURSUANT TO F.R.C.P. 41(a)(1)(A)(ii): IT IS HEREBY STIPULATED AND AGREED by and between the parties and/or their respective counsel that the above-captioned action is voluntarily dismissed, with prejudice, against Respondents Donald Trump, President of the United States; U.S. Department of Homeland Security ("DHS"); U.S. Customs and Border Protection ("CBP"); John Kelly, Secretary of DHS; Kevin K. McAleenan, Acting Commissioner of CBP; and James T. Madden, New York Field Director, CBP, pursuant to Federal Rule of Civil Procedure 41(a)(l)(A)(ii). Ordered by Judge Carol Bagley Amon on 9/21/2017. (Fernandez, Erica) (Entered: 09/21/2017)

 </s> ERIC T. SCHNEIDERMAN ATTORNEY GENERAL

STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL

DIVISION OF SOCIAL JUSTICE CIVIL RIGHTS BUREAU
LOURDES M. ROSADO, BUREAU CHIEF

January 29, 2017

The Honorable John F. Kelly Secretary of Homeland Security Department of Homeland Security 245 Murray Lane SW Washington, D.C 20528-0075
Kevin K. McAleenan Acting Commissioner, U.S. Customs and Border Protection 1300 Pennsylvania Avenue NW Washington, D.C. 20229
James T. Madden New York Field Director, U.S. Customs and Border Protection One World Trade Center Suite 50.200 New York, NY 10007
VIA MESSENGER AND OVERNIGHT MAIL
RE: Compliance of U.S. Department of Homeland Security and U.S. Customs and Border Protection with Federal Court Injunction and Restraining Order
Dear Messrs. Kelly, McAleenan, and Madden:
I write to you in my capacity as the chief law enforcement officer of the state of New York. As you are aware, last night the U.S. District Court for the Eastern District of New York issued an
120 BROADWAY, NEW YORK, NY 10271 ● PHONE (212) 416-8252 ● FAX (212) 416-6030 ● WWW.AG.NY.GOV

order enjoining and restraining the U.S. Department of Homeland Security (“DHS”) and U.S. Customs and Border Protection (“CBP”) from
in any manner or by any means, removing from the United States, individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.
Darweesh et al. v. Trump et al., 17 Civ. 480 (Donnelly, J.) (Jan. 28, 2017) (ECF 8). This order was issued in response to an Emergency Motion for Stay of Removal (ECF 4) filed on behalf of individuals being detained at John F. Kennedy International Airport (“JFK”) in New York pursuant to an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States,” which was signed by the President on January 27, 2017 (“January 27, 2017 EO”).
My office is receiving alarming reports that DHS and CBP are not complying with the federal injunction and restraining order and are, instead, planning to remove from the United States individuals specifically protected by the terms of the federal court order. I write today to inquire as to whether DHS and CPB are complying with the federal court order and, thus, will refrain from making any attempt to remove the affected individuals from the country. To that end, I request that you inform me, by 12:00 PM on Monday, January 30, 2017, of the specific steps you are taking to ensure that, as the order prescribes, all of the “officers, agents, servants, employees, attorneys” of your agencies, as well as al l “ persons acting in concert or participation” with your agencies are informed of their legal obligations under the terms of the January 28, 2017 federal order and the potential legal consequences of violating such order.
I further request that you provide me, by 12 noon on Monday, January 30, 2017, with the following information regarding each individual currently being held by CBP at JFK pursuant to the January 27, 2017 EO:
 Name;  Immigration Status, including but not limited to an individual’s possible U.S.
CIS-approved refugee application, valid immigrant or non-immigrant visa, and other legal authorization to enter the U.S. if that individual is from Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen;  Any known connection to New York State, including but not limited to:
o Residence in New York State; o Family members in New York State, including the names and contact
information of such family members;
120 BROADWAY, NEW YORK, NY 10271 ● PHONE (212) 416-8252 ● FAX (212) 416-6030 ● WWW.AG.NY.GOV

o Place of employment in New York State; o Enrollment as a student in an institution of higher learning in New York
State;1  The basis for the individual’s detention; and  Whether the individual has been permitted to consult with an attorney.
Please provide the requested information to my Bureau Chief for Civil Rights, Lourdes Rosado, who can be reached via email at lourdes.rosado@ag.ny.gov or by telephone at 212-416-8252.
As Attorney General of New York, I am mandated to ensure that the rule of law is respected throughout the state. For that reason, I expect that DHS and CBP will fully abide by the terms of the January 28, 2017 federal court order.
Sincerely,

Attachment

Eric T. Schneiderman New York Attorney General

1 For example, I understand that Vahideh Rasekhi, an Iranian doctorate student studying at the State University of New York at Stonybrook, is currently being detained at JFK. I request information regarding all such individuals who are studying, teaching or conducting research at universities and colleges in New York State.

Case 1:17-cv-00480 Document 8 Filed 01/28/17 Page 1 of 3 PageID #: 81

Case 1:17-cv-00480 Document 8 Filed 01/28/17 Page 2 of 3 PageID #: 82

Case 1:17-cv-00480 Document 8 Filed 01/28/17 Page 3 of 3 PageID #: 83


[CONTENT] Jan. 28, 2017 | Trump | Jan. 27, 2017 | EO | U.S. | Iraq | Iran | Libya | Somalia | Sudan | Syria | Yemen ||| two | U.S. Citizenship and Immigration Services | the U.S. Refugee Admissions Program | Iraq | Syria | Iran | Sudan | Libya | Somalia | Yemen | the United States | the United States | the January 27, 2017 ||| the American Civil Liberties Union | the International Refugee Assistance Project | the Urban Justice Center | the National Immigration Law Center | Yale Law School’s | Jerome N. Frank Legal Services Organization | Kilpatrick Townsend & Stockton ||| the U.S. District Court | the Eastern District | New York | Obama | Ann Donnelly | that weekend ||| JFK Airport | U.S. Customs and Border Protection | the United States ||| One | U.S. | Iraq | Iraq ||| the United States ||| EO | Fifth Amendment | the Immigration and Nationality Act ||| EO | seven | Muslim | Muslims ||| 7:30 pm | Donnelly ||| Donnelly | EO ||| The next day | Jan. 29, 2017 | Court | Jan. 28th | Order | Respondents |||  ||| Later that day | U.S. | Order |||  ||| Court ||| Jan. 29 | 2017 ||| Iranian | U.S. ||| U.S. | U.S. | the weekend | Monday, Jan. 30 | 2017 | Carol Bagley Amon ||| Feb. 2 | 2017 | Amon | the TRO to Feb. 21, 2017 ||| the New York State Office | Motion to Intervene | Feb. 10 ||| Feb. 6 | 2017 | Feb. 3 | Visa Services | the Department of State ||| Feb. 3 ||| Feb. 7 | 2017 | Jan. 28 | 2017 ||| The Jan. 28, 2017 | Trump | Jan. 27, 2017 | EO ||| Feb. 8 | 2017 |||  ||| Feb. 8 2017 | Feb. 24 ||| Feb. 21 | Feb. 21, 2017 ||| Feb. 13-16 | 2017 | the Harvard Immigration and Refugee Clinical Program | the Fred T. Korematsu Center for Law and Equality | Congress | the Constitutional Accountability Center | the Commonwealth of Massachusetts | seventeen | Brown | Carnegie Mellon | Columbia | Cornell | Dartmouth | Duke | Emory | Harvard | Johns Hopkins | MIT | Northwestern | Princeton | Stanford, University of Chicago, University of Pennsylvania | Vanderbilt | Yale ||| Feb. 16 | 2017 | 167 | Congress | EO | Congress | the Immigration and Nationality Act ||| Feb. 16 | 2017 ||| U.S. | 1 | 2 | 3 | EO | US ||| Washington v. Trump</i></a> | the Western District | Washington | the Ninth Circuit | EO | Feb. 9 2017 | Feb. 16, 2017 | Trump | EO ||| Feb. 17 | 2017 ||| the Feb. 21 | 2017 ||| Washington v. Trump</i></a | the Jan. 28 | 2017 | Feb. 21 2017 ||| Washington | EO | the Jan. 28, 2017 | the Jan. 28 2017 ||| Feb. 20, 2017 | their Feb. 7 | 2017 | Jan. 28, 2017 | EO ||| EO ||| Amon | Feb. 21, 2017 | ' Feb. 7, 2017 ||| Donnelly | Jan. 28, 2017 | EO ||| Amon | Donnelly | EO ||| Amon ||| Amon | Feb. 23, 2017 | the United States | seven | CBP | EO | Jan. 28, 2017 | Donnelly | Jan. 29, 2017 | 11:59pm ||| two | Feb. 23, 2017 ||| first | Amon | Feb. 21 | EO ||| second | 9:27 PM | Jan. 28 | Jan. 29 | Jan. 27 | EO |||  ||| That same day ||| Feb. 24, 2017 | Amon ||| the Feb. 23, 2017 | U.S. |||  ||| Feb. 24, 2017 | the Intervenor Plaintiff | the New York State Office ||| seven days | EO ||| Feb. 27 2017 ||| Mar. 6, 2017 | Jan. 27 | EO | 13780</a ||| the same day | EO | Mar. 16 ||| EO | Amon ||| EO | Iraqi ||| Mar. 13 ||| the New York State | Mar. 9, 2017 | EO | AG | Feb. 2 Complaint in Intervention ||| Mar. 13, 2017 | Amon ||| Amon | two and three weeks ||| May 1, 2017 | Amon ||| May ||| Amon | May 31 | t]he Court ||| the next few months ||| Amon | Aug. 15 | Jan. 28 ||| Amon | Aug. 28, 2017 | the next day |||  ||| Amon | Aug. 31, 2017 |||  ||| Sept. 1, 2017 ||| 14 days | U.S. | Jan. 27 | EO | U.S. |||  |||  |||  ||| Sept. 21, 2017 |||  [SUMMARY] This class action, filed Jan. 28, 2017, challenged President Trump’s Jan. 27, 2017 Executive Order (EO) ban on admission to the U.S. of nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. It was filed as a petition for a writ of habeas corpus (to seek immediate release of plaintiffs from detention) and a civil complaint, on behalf of two individuals and the class of "all individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States, but who have been or will be denied entry to the United States on the basis of the January 27, 2017 Executive Order." Counsel for plaintiffs were the American Civil Liberties Union, the International Refugee Assistance Project at the Urban Justice Center, the National Immigration Law Center, Yale Law School’s Jerome N. Frank Legal Services Organization and the firm Kilpatrick Townsend & Stockton. They filed the case in the U.S. District Court for the Eastern District of New York, along with a motion for class certification; it was initially assigned to Obama appointee Judge Ann Donnelly, who was on duty for any emergencies that weekend.

The lead plaintiffs were detained at JFK Airport by U.S. Customs and Border Protection and threatened with deportation even though they had valid visas to enter the United States. One plaintiff, Hameed Darweesh, had worked for the U.S. military in Iraq; his life was in danger in Iraq due to that relationship. The other plaintiff’s wife and son were threatened because of their perceived ties to the United States. The complaint argued that their continued detention based solely on the EO violated their Fifth Amendment procedural and substantive due process rights, and exceeded the government's authority under the Immigration and Nationality Act. The EO's singling out of seven majority-Muslim nations for disfavored treatment unconstitutionally discriminated against Muslims, it said.

At 7:30 pm the day the matter was filed, Judge Donnelly heard an emergency motion to stay all removals (that is, deportations) under the order; after a hearing, she granted a nationwide stay of removals to all members of the class. At the hearing, Judge Donnelly further required the defendants to provide a list of all individuals detained as a result of the EO. 

The next day, on Jan. 29, 2017, plaintiffs filed a motion asking the Court to "immediately clarify that its Jan. 28th Order is nationwide and order Respondents to enforce the stay of removal." They explained that they had received information that members of the class were continuing to be deported, in other states.  Later that day, the plaintiffs filed a "notice" that said that the U.S. had "acknowledge[d] that the Order does in fact apply nationwide."  The notice explained, "Petitioners continue to monitor reports of noncompliance and are working with Respondents’ counsel to attempt to resolve them. Petitioners will update the Court as to any issues of noncompliance should further clarification or enforcement be necessary."  

In addition, on Jan. 29,  2017, a member of the class filed an emergency motion with the court seeking declaratory relief to clarify that she will not be detained or deported. The class member is an Iranian national and lawful permanent resident of the U.S. with a visa. Her husband, a U.S. citizen, sponsored her for permanent residence in the U.S. 

The initial assignment had been for emergency purposes over the weekend; on Monday, Jan. 30,  2017, the case was randomly reassigned to Judge Carol Bagley Amon.  

On Feb. 2, J 2017, udge Amon extended the TRO to Feb. 21, 2017 for good cause shown. In addition, the New York State Office of the Attorney General filed a Motion to Intervene, which was granted on Feb. 10. 

On Feb. 6,  2017, the government filed a notice of supplemental authority which noted the Feb. 3 letter written by the Deputy Assistant Secretary for Visa Services at the Department of State. This Feb. 3 letter reversed the provisional revocation of all visas previously issued by the Deputy Assistant Secretary.

On Feb. 7,  2017, the petitioners moved for the court to enforce its Jan. 28, 2017 order. The Jan. 28, 2017 order had directed the government to provide the plaintiffs' counsel with a list of all individuals detained pursuant to President Trump's Jan. 27, 2017 EO, including individuals previously released or removed.

On Feb. 8,  2017, the defendants filed a motion to dismiss the plaintiffs' petition and complaint for lack of subject-matter jurisdiction and failure to state a claim. The defendants' motion also opposed the plaintiffs' motion for a preliminary injunction. 

Additionally, the court issued a Feb. 8 2017,  order instructing the parties to submit memos and a briefing schedule in preparation for a hearing originally scheduled on Feb. 24. After the parties requested an expedited hearing on the stay motion and the motion to dismiss, because the government would not consent to an extension of the stay beyond Feb. 21, the court agreed to hold a hearing on Feb. 21, 2017. 

From Feb. 13-16,  2017, numerous organizations filed amicus briefs, including the Harvard Immigration and Refugee Clinical Program, the Fred T. Korematsu Center for Law and Equality, several members of Congress (represented by the Constitutional Accountability Center), the Commonwealth of Massachusetts, seventeen universities (Brown, Carnegie Mellon, Columbia, Cornell, Dartmouth, Duke, Emory, Harvard, Johns Hopkins, MIT, Northwestern, Princeton, Stanford, University of Chicago, University of Pennsylvania, Vanderbilt, and Yale), and many others. On Feb. 16,  2017, 167 members of Congress filed an amicus brief arguing, among other things, that the EO is irreconcilable with Congress's clearly expressed intent in the Immigration and Nationality Act.

On Feb. 16,  2017, the plaintiffs filed a response in opposition to the government's motion to dismiss the preliminary injunction. The plaintiffs argued that though the named plaintiffs had been admitted to the U.S., the case was not moot because: 1) the relief that the named plaintiffs received represented only a voluntary cessation of the challenged policy; 2) the case's class claims were inherently transitory; and 3) there were still individuals who, pursuant to the EO, had been unconstitutionally denied entry or admission into the US. 

In the meantime, in <a href="https://www.clearinghouse.net/detail.php?id=15606"><i>Washington v. Trump</i></a>, in the Western District of Washington and then the Ninth Circuit, the EO had also been enjoined, and a stay of proceedings denied on Feb. 9 2017, ; on Feb. 16, 2017, the Trump administration announced that rather than continuing to litigate the EO's lawfulness, it would rescind the order and soon replace it with a revised version. 

The parties in this case therefore jointly requested on Feb. 17,  2017, that the court stay proceedings related to the petitioners' motion for a preliminary injunction and the government's motion to dismiss. The parties also requested that the court cancel the Feb. 21,  2017, hearing that was to be set on these motions. The court granted the parties' joint motion, and further determined that the injunction issued in <a href="https://www.clearinghouse.net/detail.php?id=15606"><i>Washington v. Trump</i></a> provided sufficient protection so as to not require that the Jan. 28,  2017 injunction be extended beyond Feb. 21 2017. However, should the Washington injunction be vacated while the EO was in effect, the Jan. 28, 2017, injunction would be reinstated and the court would schedule a prompt hearing on whether the Jan. 28 2017 injunction should be extended further. 

The plaintiffs then on Feb. 20, 2017, filed a reply in support of their Feb. 7,  2017, motion for the court to enforce its Jan. 28, 2017, order directing the government to provide the plaintiffs' counsel with a list of all individuals detained pursuant to the EO. In the reply, the plaintiffs argued that the defendants should release the names of "all individuals excluded on the basis of the EO" after this action was filed, and not just those individuals which the plaintiff's counsel identified.

Judge Amon on Feb. 21, 2017, granted the plaintiffs' Feb. 7, 2017 motion in part. She read Judge Donnelly's Jan. 28, 2017, order as requiring defendants "to provide a single list of putative class members being held pursuant to the EO at any time from the signing of the order and for a reasonable period thereafter, which would include through the following day." Judge Amon also interpreted Judge Donnelly's use of "the term 'detained' "to be in the everyday sense, meaning those being held for questioning pursuant to the terms of the EO, as distinguished from individuals formally placed in removal proceedings." The plaintiffs in this case specifically, noted Judge Amon, were not placed in removal proceedings but were nonetheless "detained." Accordingly, Judge Amon ordered defendants by Feb. 23, 2017, to provide plaintiffs with a list of all individuals with approved refugee applications, valid immigrant and nonimmigrant visas, or other legal authorization to enter the United States, from the seven banned countries, who were held, including being processed, by CBP pursuant to the EO from Jan. 28, 2017, at 9:37pm (when Judge Donnelly ordered defendants to produce the list) through Jan. 29, 2017, at 11:59pm.

The government filed two status reports on Feb. 23, 2017. The first status report informed the court that the government had prepared the list as ordered by Judge Amon on Feb. 21 ("putative class members being held pursuant to the EO at any time from the signing of the order and for a reasonable period thereafter"), and that the parties were working through the last-minute terms of the protective order. The second status report informed the court that the parties had agreed to a protective order covering the list containing the names of all individuals processed at any time from 9:27 PM on Jan. 28 to 11:59 PM on Jan. 29 pursuant to the Jan. 27 EO, including those previously released or removed, and that the government had provided the list to the petitioners. The petitioners reserved the right to challenge the government's designation of any information in the list for being overbroad. 

That same day, the parties filed a joint motion for an order protecting the confidentiality of the individuals named in the list, which the court granted. 

The parties appeared for oral argument on Feb. 24, 2017, before Judge Amon. During oral argument, the government stated that they would inform the petitioners as to which individuals on the Feb. 23, 2017, list were ultimately admitted into the U.S. The petitioners stated that they would provide the government with the names of individuals who they believed were not included on the list, but who should have been, so that the government may investigate accordingly. 

Also during oral argument on Feb. 24, 2017, the parties requested to adjourn the present briefing schedule regarding a potential motion to dismiss the Intervenor Plaintiff, the New York State Office of the Attorney General. The request was granted and the parties agreed to submit a new briefing schedule, if necessary, within seven days after a new EO is issued. 

Many religious organizations filed an appearance on Feb. 27 2017.

On Mar. 6, 2017, the President rescinded the Jan. 27 EO and replaced it with a narrower one, <a href="https://www.federalregister.gov/documents/2017/03/09/2017-04837/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states">Executive Order 13780</a>. On the same day, defendants filed a notice about the release of this new EO to take effect on Mar. 16, revoking and replacing the previous one. Defendants argued that the new EO differed substantially from the previous one and thus would not be affected by Judge Amon's TRO. Specifically, defendants noted that the new EO did not ban Iraqi nationals. Defendants stated that they would, as previously agreed, file a proposed joint scheduling order by Mar. 13.

Following this, the New York State Attorney General sent a Mar. 9, 2017, letter to the court, specifying that in light of the new EO, the AG would not pursue the case and would not file its proposed Feb. 2 Complaint in Intervention.

On Mar. 13, 2017, the parties then submitted a letter to Judge Amon, indicating that they were in settlement discussions and requesting a stay. Judge Amon granted such stays repeatedly for two and three weeks at a time.

On May 1, 2017, both plaintiff and defendants wrote separately to Judge Amon, informing her that the parties were unable to reach a settlement. After several conferences in May, the court re-scheduled the follow-up conference several times, as defendants twice requested an adjournment. (Judge Amon on May 31 mentioned that "[t]he Court is not pleased with respondents' request.") Conferences, follow-ups, and extensions continued over the next few months. In the meantime, Judge Amon on Aug. 15 stayed sua sponte a ruling on plaintiff's Jan. 28 class certification motion, while settlement discussions proceeded.

Judge Amon held a settlement conference on Aug. 28, 2017, and a follow-up telephone conference the next day. The parties stated that they had reached a settlement in principle. Judge Amon asked them to confirm the details in the next settlement conference on Aug. 31, 2017. They did so, and entered the terms of the settlement agreement on the record. The parties then on Sept. 1, 2017, filed the settlement agreement and stipulation of dismissal.

According to the settlement agreement, defendants would within 14 days notify all persons barred from entering the U.S. under the Jan. 27 EO, and who were still outside the U.S., that they could re-apply for a visa. The letter would include a list of free legal services providers. The parties agreed that no applicants would be automatically entitled to a visa just by re-applying. After completing this notification, defendants would notify plaintiffs of their compliance, and plaintiffs would then file a stipulated dismissal of all claims, relief, damages, and jurisdiction for this matter.

The docket reflects that the court closed this case on Sept. 21, 2017.

Additional information may be available at the <a href="https://www.aclu.org/cases/darweesh-v-trump">ACLU</a> or the <a href="https://www.law.yale.edu/studying-law-yale/clinical-and-experiential-learning/our-clinics/worker-and-immigrant-rights-advocacy-clinic/darweesh-et-al-v-trump-et-al">Yale Law School Clinic</a> pages for this case. 