245 F. Supp. 3d 719
E.D. Va.2017Background
- Plaintiffs (U.S. citizens and lawful residents, all Muslim) seek a TRO/PI to enjoin Executive Order 13,780 (EO‑2), which suspends entry of nationals from six countries for 90 days and pauses refugee admissions for 120 days, subject to exemptions and waivers. EO‑2 replaced EO‑1 and was issued March 6, 2017 (effective March 16, 2017).
- EO‑2 narrows and changes EO‑1: removes Iraq, eliminates an indefinite Syrian refugee ban, adds exemptions (including for those in U.S. or holding valid travel documents by EO‑1 date), and lists waiver categories; it omits explicit religious preference language and adds national‑security justifications.
- Parallel litigation: district courts in Washington, Hawaii, and Maryland issued injunctions/TROs against parts of EO‑1 and EO‑2; the Hawaii court issued a nationwide TRO against sections 2 and 6 of EO‑2 and Maryland issued a preliminary injunction as to section 2(c).
- Plaintiffs allege stigmatic injury (Establishment/Equal Protection), and concrete harms (blocked family reunification, visa/waiver burdens, travel/visa renewal issues); the court found standing sufficient for purposes of the motion.
- The Court applied the preliminary‑injunction standard (likelihood of success on merits, irreparable harm, balance of equities, public interest) and denied the emergency motion for injunction in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue EO‑2 | Plaintiffs say stigmatic and concrete harms (family separation, visa burdens, travel constraints) suffice. | Defendants dispute concrete injury. | Court found Plaintiffs have sufficient standing for this motion. |
| Whether EO‑2 violates INA non‑discrimination §1152 by nationality‑based suspensions | §1152 forbids nationality discrimination in immigrant‑visa issuance and therefore limits §1182(f)/§1185(a) presidential authority. | President relies on broad §1182(f)/§1185(a) authority to suspend entry; §1152 does not constrain suspension of entry or nonimmigrant visas. | Court held §1152 does not clearly limit the President's §1182(f)/§1185(a) entry‑suspension authority and plaintiffs are unlikely to prevail on this statutory claim. |
| Whether EO‑2 is reviewable under the APA | Plaintiffs assert agency‑action/APA challenge to EO‑2. | Defendants say the President is not an "agency" under the APA so APA review is unavailable. | Court held the President's issuance of EO‑2 is not reviewable under the APA; claim fails. |
| Whether EO‑2 violates Establishment and Equal Protection Clauses (religious animus) | Plaintiffs argue EO‑2 is a continuation of the "Muslim ban"; presidential statements and EO‑1 show discriminatory purpose, so EO‑2 is a pretext. | Defendants point to facial neutrality, expanded exemptions/waivers, country‑specific national security findings, and deference to executive national security judgments. | Court applied Lemon and related precedent, looked at extrinsic evidence but found EO‑2 materially differs from EO‑1; plaintiffs did not show a likely Establishment or Equal Protection victory. |
Key Cases Cited
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (sets standard for preliminary injunction showing).
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requirements).
- Dalton v. Specter, 511 U.S. 462 (1994) (President is not an "agency" under the APA).
- Kleindienst v. Mandel, 408 U.S. 753 (1972) (courts will not look behind a facially legitimate and bona fide executive reason in visa denial/national‑security context).
- Lemon v. Kurtzman, 403 U.S. 602 (1971) (Establishment Clause three‑prong test).
- Larson v. Valente, 456 U.S. 228 (1982) (facial religious discrimination triggers strict scrutiny).
- Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) (immigration measures with national‑security justification upheld under rational basis).
- McCreary County v. American Civil Liberties Union, 545 U.S. 844 (2005) (courts may probe government purpose where secular purpose is a sham).
- Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002) (loss of First Amendment rights constitutes irreparable harm).
- Mathews v. Diaz, 426 U.S. 67 (1976) (deference in immigration/naturalization decisions).