International Refugee Assistance Project v. Trump, 404 F.Supp.3d 946

Three consolidated civil actions challenge Proclamation No. 9645 (Sept. 27, 2017) alleging violations of the Establishment Clause, free speech and association (First Amendment), and due process and equal protection (Fifth Amendment).
On May 2, 2019, the district court denied the Government's motion to dismiss those Constitutional Claims.
The Government moved under 28 U.S.C. § 1292(b) to certify the May 2 Order for interlocutory appeal and to stay discovery pending appeal.
The Government identified four certification questions: (1) whether Mandel or rational-basis review (per Trump v. Hawaii) applies; (2) whether Hawaii forecloses constitutional challenges as a matter of law; (3) whether Plaintiffs plausibly plead rational-basis failure; and (4) whether Plaintiffs have cognizable legal interests for due process, Establishment, and equal protection claims.
The Court concluded certification was partly appropriate because reversal would dispose of the entire case and the matter is of special consequence, but declined to stay discovery given plaintiffs’ prolonged separation from family and potential prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Applicable standard: Mandel vs. rational-basis (Trump v. Hawaii)	Mandel governs judicial review of executive exclusion decisions	Trump v. Hawaii applies and calls for rational-basis review	Court: Supreme Court in Hawaii applied rational-basis but that does not foreclose merits review here; not a controlling novel question for §1292(b) purposes
Whether Hawaii forecloses constitutional challenges as a matter of law	Hawaii did not resolve challenges on a fuller record for different parties	Hawaii’s rational-basis analysis should be dispositive	Court: Hawaii is persuasive but not dispositive here because rational-basis is fact-intensive and prior record differed; not settled as a dispositive matter for these cases
Adequacy of Plaintiffs’ pleadings that Proclamation fails rational-basis	Plaintiffs allege sufficient facts to survive dismissal	Government contends plaintiffs failed to plausibly plead irrationality	Court: Pleadings raise factual issues; adequacy is not a pure question of law suitable for §1292(b) interlocutory appeal
Standing / cognizable legal interests (Establishment, due process, equal protection)	Plaintiffs assert concrete interest in family reunification and other injuries	Government disputes cognizable liberty/interest for some claims	Court: Plaintiffs have standing for Establishment claims per Supreme Court and 4th Circuit precedent; circuits differ on due-process interest but disagreement not substantial for §1292(b)

Kleindienst v. Mandel, 408 U.S. 753 (1972) (standard for judicial review of executive refusal to admit aliens)
Trump v. Hawaii, 138 S. Ct. 2392 (2018) (applied rational-basis review to Proclamation No. 9645)
In re Trump, 928 F.3d 360 (4th Cir. 2019) (discussing when §1292(b) certification is appropriate for novel, nationally significant executive-branch issues)
United States ex rel. Michaels v. Agape Senior Cmty., Inc., 848 F.3d 330 (4th Cir. 2017) (defines controlling question of law for §1292(b) as a pure legal question)
Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (explaining fact-intensive nature of rational-basis review)
Int'l Refugee Assistance Project v. Trump, 883 F.3d 222 (4th Cir. 2018) (discusses standing and injury from family separation in challenges to travel restrictions)