265 F. Supp. 3d 570
D. Maryland2017Background
- Three travel bans iterations (EO-1, EO-2, Presidential Proclamation 9645) targeted nationals from predominantly Muslim or related countries.
- Plaintiffs IRAP, HIAS, MESA, IAAB, YAMA, Zakzok and others challenge the Proclamation under INA, Establishment Clause, and APA.
- EO-2 held invalid for Establishment Clause; EO-2's expiration moot; Proclamation 9645 issued Sept. 2017 expanding/continuing restrictions.
- Court granted a preliminary injunction restricting Section 2 of Proclamation 9645 to those with no bona fide U.S. relationship; others remained eligible.
- Plaintiffs alleged standing via familial or organizational interests; court found standing for INA and Establishment Clause claims.
- Court concluded the Proclamation likely violates INA §1152(a) and the Establishment Clause, warranting nationwide injunction as to Section 2 with specific exceptions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Proclamation 9645 violate INA §1152(a) by nationality-based discrimination? | Plaintiffs contend §1152(a) bars nationality-based discrimination in immigrant visas, which Proclamation violates. | Government argues §1182(f) authorizes broad entry suspensions without contradicting §1152(a). | Likely to violate §1152(a); §1152(a) controls over §1182(f). |
| Is the Proclamation's §1182(f) finding adequate to justify entry restrictions? | Finding insufficient to show deterrence of security risk; not adequately supported by threat assessments. | §1182(f) grants broad discretion; findings need not be narrowly tailored. | Court finds the finding likely adequate under a broad standard, but does not foreclose further analysis under Establishment Clause. |
| Does Proclamation 9645 violate the Establishment Clause? | Proclamation mirrors prior Muslim bans; purposes appear religiously biased; taint from EO-2 persists. | Proclamation is facially neutral and based on information-sharing and security concerns. | Likely violation; taint of prior bans persists; substantial likelihood of establishing Establishment Clause violation. |
| Are Plaintiffs’ claims justiciable and do they have standing? | Individual and organizational plaintiffs have injuries from visa denials and discriminatory messaging; organizational injuries arise from event impacts. | Consular nonreviewability and prudential standing concerns apply; not all plaintiffs have standing. | Multiple plaintiffs have standing to assert INA and Establishment Clause claims; court proceeds to merits. |
Key Cases Cited
- Kerry v. Din, 135 S. Ct. 2128 (U.S. 2015) (concept of facial legitimacy and bona fide justification in immigration decisions)
- Kleindienst v. Mandel, 408 U.S. 764 (U.S. 1972) (facially legitimate reasons; deference to broad immigration discretion)
- Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) (nationality-based entry bans; §1152(a) limitations)
- Int'l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc; Establishment Clause concerns; initial EVA findings)
- Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (preliminary injunction standards and national scope considerations)
- Sale v. Haitian Ctrs. Council, 509 U.S. 155 (U.S. 1993) (judicial review of presidential action under immigration statutes)
- McCreary County v. ACLU, 545 U.S. 844 (U.S. 2005) (purpose/prong analysis under Lemon test and historical context)
- Felix v. City of Bloomfield, 841 F.3d 760 (10th Cir. 2016) (curative governmental actions must be purposeful, public, and persuasive)