ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER
INTRODUCTION
Professional athletes mirror the federal government in this respect: they operate within a set of rules, and when one among them forsakes those rules in favor of his own, problems ensue. And so it goes with EO-3.
On June 12, 2017, the Ninth Circuit affirmed this Court’s injunction of Sections 2 and 6 of Executive Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017), entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO-2”). Hawaii v. Trump,
Enter EO-3.
Accordingly, based on the record before it, the Court concludes that Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their statutory claims, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief. Plaintiffs’ Motion for a Temporary Restraining Order (ECF No. 368) is GRANTED.
BACKGROUND
I. The President’s Executive Orders
On September 24, 2017, the President signed Proclamation No. 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the .United States by Terrorists or Other Public-Safety Threats.” Like its two previously enjoined predecessors, EO-3 restricts the entry of foreign nationals from specified countries, but this time, it does so indefinitely. Plaintiffs State of Hawai’i (“State”), Ismail Elshikh, Ph.D., John Doe 1, John Doe 2, and the Muslim Association of Hawaii, Inc., seek a nationwide temporary restraining order (“TRO”) that would prohibit Defendants
A. The Executive Orders and Related Litigation
On January 27, 2017, the President signed an Executive Order entitled “Protecting the Nation From Foreign Terrorist Entry into the United States.” Exec. Order 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017) [hereinafter EO-1]. EO-l’s stated purpose was to “protect the American people from terrorist attacks by foreign nationals admitted to the United States.” Id. EO-1 took immediate effect and was challenged in several venues, shortly after it issued. On February 3, 201.7, a federal district court granted a nationwide TRO enjoining EO-1. Washington v. Trump, No. C17-0141JLR,
On March 6, 2017, the President issued EO-2, which was designed to take effect on March 16, 2017. 82 Fed. Reg. 13209 (Mar. 6, 2017). Among other things, EO-2 directed the Secretary of Homeland Security to conduct a global review to determine whether foreign governments provide adequate information about their nationals seeking entry into the United States. See EO-2 § 2(a), EO-2 directed the Secretary to report those findings to the President, after which nations identified as “deficient” would have an opportunity to alter their practices, prior to the Secretary recommending entry restrictions. Id, §§ 2(d) — (f).
During this global review, EO-2 contemplated a temporary, 90-day suspension on the entry of certain foreign nationals from six countries — Iran, Libya, Somalia, Sudan, Syria, and Yemen. Id. § 2(c), That 90-day suspension was challenged in multiple courts and was preliminarily enjoined by this Court and by a federal district court in Maryland. See Hawaii v. Trump,
B. EO-3
The President signed EO-3 on September 24, 20Í7. EO-3’s stated policy is to protect United States “citizens from terrorist attacks and other public-safety threats,” by preventing “foreign nationals who may ... pose a safety threat ... from entering the United States.”
As a result of the global reviews undertaken by the Secretary of Homeland Security in consultation with the Secretary of State and the Director of National Intelligence, and following a 50-day “engagement period” conducted by the Department of State, the Acting Secretary of Homeland" Security submitted a September 15, 2017 report to the President recommending restrictions on the entry of nationals from specified countries. Id. § l(c)-(h). The President found that, “absent the measures set forth in [EO-3], the immigrant and nonimmigrant entry in the United States of persons described in section 2 of [EO-3] would be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions.” EO-3 pmbl.
Section 2 of EO-3 indefinitely bans immigration into the United States by nationals of seven countries: Iran, Libya, Syria, Yemen, Somalia, Chad, and North Korea. EO-3 also imposes restrictions on the issuance of certain nonimmigrant visas to nationals of six of those countries. It bans the issuance of all nonimmigrant visas except student (F and M) and exchange (J) visas to nationals of Iran, and it bans the issuance of business (B-l), tourist (B-2), and business/tourist- (B-l/B-2) visas to nationals of Chad, Libya, and Yemen. EO-3 §§ 2(a)(ii), (C)(ii), (g)(ii). EO-3 suspends the issuance of business, tourist, and business-tourist- visas to specific Venezuelan government officials and their families, and bars the receipt of nonimmigrant visas by nationals of North Korea and Syria. Id. §§ 2(d)(ii), (e)(ii), (f)(ii).
EO-3, like its predecessor, provides for discretionary case-by-case waivers. Id. § 3(c). The restrictions on entry became effective immediately for foreign nationals previously restricted under EO-2 and the Supreme Court’s stay order, but for all other covered persons, the restrictions become effective on October 18, 2017 at 12:01-a.m. eastern daylight time. EO-3 §§ 7(a), (b).
IL Plaintiffs’ Motion For TRO
Plaintiffs’ -Third Amended Complaint (EOF No. 381) and Motion for TRO (EOF No. 368) contend that portions of the newest entry ban suffer from the same infirmities as the enjoined provisions of EO-2 § 2.
The State asserts that EO-3 inflicts statutory and constitutional injuries upon its residents, employers, and educational institutions, while Dr. Elshikh alleges injuries on behalf of himself, his family, and members of his Mosque. TAC ¶¶ 14-32. Additional Plaintiffs John Doe 1 and John Doe 2 have family members who will not be able to travel to the United States. TAC ¶¶ 33-41. The Muslim Association of Hawaii is a non-profit entity that operates mosques on three islands in the State of Hawaii and includes members from Syria, Somalia, Irán, Yemen, and Libya who are naturalized United States citizens or lawful permanent residents. TAC ¶¶ 42-45.
Plaintiffs ask the Court to temporarily enjoin on a nationwide basis the implementation and enforcement of EO-3 Sections 2(a), (b), (c), (e), (g), and (h) before EO-3 takes effect.
DISCUSSION
I. Plaintiffs Satisfy Standing and Jus-ticiability
A. Article III Standing
Article III, Section 2 of the Constitution permits federal courts to consider only “cases” and “controversies.” Massachusetts v. EPA,
“At this very preliminary stage of the litigation, the [Plaintiffs] may rely on the allegations in their Complaint and whatever other evidence they submitted in support of their TRO motion to meet their burden.” Washington,
1. The State Has Standing
The State alleges. standing based upon injuries to its proprietary and quasi-sovereign interests, ie., in its role as par-ens patriae. Just as the Ninth Circuit previously concluded in reviewing this Court’s order enjoining EO-2,
The State, as the operator of the University of Hawai’i system, will suffer proprietary injuries stemming from EO-3.
These types of injuries are nearly indistinguishable from those found to support standing in the Ninth Circuit’s controlling decisions in Hawaii and Washington. See Hawaii,
As before, the Court “ha[s] no difficulty concluding that the [Plaintiffs’] injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the [law] and an injunction barring its enforcement.” Washington,
2. The Individual Plaintiffs Have Standing
The Court next turns to the three individual Plaintiffs and concludes that , they too .have standing with respect to the INA-based statutory claims.
a. Dr, Elshikh
Dr. Elshikh is an American citizen of Egyptian descent and has been a resident of Hawai’i for over a decade. Decl, of Ismail Elshikh ¶ 1, ECF No. 370-9. He is the Imam of the Muslim Association of Hawaii and a leader within' the State’s Islamic community. Elshikh Decl. ¶ 2. Dr, Elshikh’s. wife is. of Syrian, descent, and their young children are American citizens. Dr. Elshikh and his family are Muslim. Elshikh Decl, ¶¶ 1, 3. His Syrian mother-in-law‘recently received an immigrant visa and, in August 2017, came to Hawai’i to live with his family, Elshikh Decl. ¶ 5. His wife’s four brothers are Syrian nationals, currently living in Syria, with plans to visit his family in Hawai’i in March 2018 to celebrate the birthdays of Dr. Elshikh’s three sons. Elshikh Decl. ¶ 6. On October 5, 2017, one of his brothers-in-law filed an application for a nonimmigrant visitor visa. Elshikh Decl. 116. Dr. Elshikh attests , that as a result of EO-3, his family will be denied the company of close relatives solely because of their nationality and religion, which denigrates- their faith and makes them feel they are second-class citizens in their own country. Elshikh Decl. ¶ 7.
Dr. Elshikh seeks to reunite his family members.
By suspending the entry of nationals from the [eight] designated countries, including Syria, [EO-3] operates to delay or prevent the issuance of visas to nationals from those countries, including Dr. Elshikh’s [brother]-in-law. Dr. El-shikh has alleged á concrete harm because [EO-3] ... is a barrier to reunification with his [brother]-in-law.
Hawaii,
b. John Dóe 1
..John- Doe 1 is a naturalized United States citizen who was born in Yemen and has lived in Hawai’i for almost 30 years. Decl.- of John Doe' 1 ¶1, EOF No. 370-1. His wife and four - children, also United States citizens, are Muslim, and members of Dr. Elshikh’s mosque. Doe 1 Decl. ¶¶ 2-3. One of his daughters, who presently lives in Hawai’i along with her own child, is married to a Yemeni national who fled the civil war in Yemen and is currently living in Malaysia. Doe 1 Decl, ¶¶4-6. In September 2015, his daughter filed a petition to allow Doe l’s son-in-law to immigrate to the United States as the spouse of a United States citizen, and in late June 2017, she learned that her petition had successfully passed through the clearance stage. Doe 1 Decl. ¶¶ 7-9, She has filed a visa application with the . National Visa Center and estimates that, under normal visa processing procedures, he would receive a visa within the next three to twelve months. However, in light of EO-3, the issuance of immigrant visas to nationals of Yemen will be effectively barred, which creates uncertainty for the family. Doe 1 Decl. ¶¶ 9-10. Doe l’s family misses the son-in law and wants him to be able to live in Hawai’i with Doe l’s daughter and grandchild. Doe 1 Decl. ¶¶ 11,12 (“By singling our family out for special burdens, [EO-3] denigrates us because of our faith and sends a message that Muslims are outsiders and are not welcome in this country.”).
Doe 1 alleges a sufficient injury-in-fact. He and his family seek to reunite with his son-in-law and avoid a prolonged separation from him. See Hawaii,
c. John Doe 2
John Doe 2 is a lawful permanent resident of the United States, born in Iran, currently living in Hawai’i and working as a professor at the University of Hawai’i. Decl. of John Doe 2 ¶¶ 1-3, ECF. No. 370-2. His mother is an Iranian national with a pending application for a tourist visa, filed several months ago. Doe 2 Decl. ¶ 4. .Several other close relatives — also Iranian nationals living in Iran — similarly submitted applications for tourist visas a few months ago and recently had interviews in connection with their applications. They intend to visit Doe 2 in Hawai’i as soon as their applications are approved. Doe 2 Decl. ¶ 5. If implemented, EO-3 will block the issuance of tourist visas from Iran and separate Doe 2 from his close relatives. If EO-3 persists, Doe -2 is less likely to remain in the United States because he will be indefinitely deprived of the company of his family. Doe 2 Decl.-¶ 8. Becausé his family cannot visit him in the United States, Doe 2’s life has been more difficult, and he feels like an outcast in his own country. Doe 2 Decl. ¶ 8.
Like Dr.' Elshikh and Doe 1, Doe 2 sufficiently alleges a concrete harm because EO-3 is a barrier to visitation or reunification with his mother and other close relatives. It prolongs his separation from his family members due to their nationality. The final two aspects of Article III standby — causation and redressability — are also satisfied. Doe 2’s injuries are traceable to EO-3, and if Plaintiffs prevail, a decision enjoining portions of EO-3 would redress that injury.
3. The Muslim Association of Hawaii Has Standing
The Muslim Association of Hawaii is the only formal Muslim organization in Hawai’i and serves 5,000 Muslims statewide. Decl. ' of Hakim Ouansafi ¶¶ 4-5, ECF. No. 370-1. The Association draws upon new arrivals to Hawai’i to add to its membership and “community of worship-pers, including persons immigrating as lawful permanent residents and shorter-term visitors coming to Hawaii for business,, professional training, university studies, and tourism.” Ouansafi Decl. ¶ 11. Current members of the Association include “foreign-born individuals from Syria, Somalia, Iran, Yemen, and Libya who are now naturalized U.S. citizens or lawful permanent residents.” Ouansafi Decl. ¶ 12. EO-3 will decrease the Association’s future membership from the affected countries and deter current members from remaining in Hawai’i. Ouansafi Decl. ¶¶ 13, 18; see also id. at ¶ 14 (“EO-3 will deter our current members from remaining ... because they cannot receive visits from them family members and friends from the affected countries if they do. I personally know of at least one family who made that difficult choice and left Hawaii and I know others who have talked about doing the same.”).
According to the Association’s Chairman, EO-3 will likely result in a decrease in the Association’s membership and in visitors to its mosques, which in turn, will directly harm the Association’s finances. Ouansafi Decl. ¶¶ 18-19. Members of the Association have experienced fear and feelings of national-origin discrimination because of the prior and current entry bans. Ouansafi Decl. ¶¶ 21-22 (“That fear has led to, by way of example, children wanting to change their Muslim names and parents wanting their children not to wear head coverings to avoid being victims of violence. Some of our young people have said they want to change their names because they are afraid to be Muslims. There is real fear within our community especially among our children and American Muslims who were born outside the United States.”); id. ¶ 23 (“Especially because it is permanent, EO-3 has — even more so than its predecessor bans — caused tremendous fear, anxiety, and grief for our members.”).
The Association, by its Chairman Hakim Oaunsafi, has sufficiently demonstrated standing in its own right, at this stage. See Warth v. Seldin,
Having determined that Plaintiffs each satisfy Article Ill’s standing requirements, the Court turns to whether Plaintiffs are within the “zone of interests” protected by the INA.
B. Statutory Standing
Because Plaintiffs allege statutory claims based on the INA, the Court examines whether they meet the requirement of having stakes that “fall within the zone of interests protected by the law invoked.” Hawaii,
Equally important, “the State’s efforts to enroll students and hire faculty members who are nationals from [the list of] designated countries fall within the zone of interests of the INA.” Hawaii,
In sum, Plaintiffs fall within the zone of interests and have .standing to challenge EO-3 based on their INA claims.
C. Ripeness
Plaintiffs’ claims are also ripe for review. “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” Texas v. United States,
The Government’s premise is not true. Plaintiffs allege current, concrete injuries to themselves and their close family members, injuries that have already occurred and that will continue to occur once EO-3 is fully implemented and enforced.
Plaintiffs’ INA-based statutory claims are therefore ripe for review on the merits.
D. Justiciability
Notwithstanding the Ninth Circuit’s recent rulings to the contrary, the Government persists in its contention that Plaintiffs’ statutory claims are not renewable. “[C]ourts may not second-guess the political branches’ decisions to exclude aliens abroad where Congress has not authorized review, which it has not done here.” Mem. in Opp’n 4. In doing so, the Government again invokes the doctrine of consular nonreviewability in an effort to circumvent judicial review of' seemingly any Executive action denying entry to an alien abroad. See Mem. in Opp’n 12-13 (citing United States ex rel. Knauff v. Shaughnessy,
The Government’s contentions are troubling. Not only do they ask this Court to overlook binding precedent issued in the specific context of the various executive immigration orders authored since the beginning of 2017, but they ask this Court to ignore its fundamental responsibility to ensure the legality and constitutionality of EO-3. Following the Ninth Circuit’s lead, this Court declined such an invitation before and does so again. See Washington,
Because Plaintiffs have standing and present a justiciable controversy, the Court turns to the merits of the Motion for TRO.
II. Legal Standard: Preliminary In-junctive Relief
The underlying purpose of a TRO is to preserve the status quo and prevent irreparable harm before a preliminary injunction hearing is held. Granny Goose Foods v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County,
The standard for issuing a temporary restraining order is substantially identical to the standard for issuing a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brush & Co.,
For the reasons that follow, Plaintiffs have met this burden here.
III. Analysis of TRO Factors: Likelihood of Success on the Merits
Following the Ninth .Circuit’s direction, the Court begins with Plaintiffs’ statutory claims. Hawaii,
A. Plaintiffs Are Likely to Succeed on the Merits of Their Section 1182(f) and 1185(a) Claims
EO-3 indefinitely suspends the entry of nationals from countries the President and Acting Secretary of Homeland Security identified as having “inadequate identity-management protocols, information sharing practices, and risk factors.” EO-3 § 1(g). As discussed herein, because EO-3’s findings are inconsistent .with and do not fit the restrictions that the order actually imposes, and because EO-3 improperly uses nationality as a proxy for risk, Plaintiffs are likely to prevail on the merits of their statutory claims.
Section 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.
8 U.S.C. § 1182(f). Section 1185(a)(1) similarly provides that “[u]nless otherwise ordered by the President, it shall be unlawful for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.”. 8 U.S.C. § 1185(a)(1).
Under the law of this Circuit, these provisions do not afford the President unbridled discretion to do as he pleases. An Executive Order promulgated pursuant to INA Sections 1182(f) and 1185(a) “requires that the President find that the entry of a class of aliens into the United States would be detrimental to the interests of the United States.” Hawaii,
First, EO-3, like its predecessor, makes “no. finding that nationality alone renders entry of this broad class of individuals a heightened security risk to the United States.” Hawaii,
The generalized findings regarding each country’s performance, see EO-3 §§ 1(d)— (f), do not support the vast scope of EO-3 — in other words, the categorical restrictions on entire populations of men, women, and children, based upon nationality, are a poor fit for the issues regarding the sharing of “public-safety and terrorism-related information” that the President identifies. See EO-3 §§ 2(a)(i), (c)(i), (e)(i), (g)(i). Indeed, as the Ninth Circuit already explained with respect to EO-2 in words that are no less applicable here, the Government’s “use of nationality as the sole basis for suspending entry means that nationals without significant ties to the six designated countries, such as those who left as children or those whose nationality is based on parentage alone,” are suspended from entry. Hawaii,
Second, EO-3 does not reveal why existing law is insufficient to address the President’s described concerns. As the Ninth Circuit previously explained with respect to EO-2, “[a]s the law stands, a visa applicant bears the burden of showing that the applicant is eligible to receive a visa ... and is not inadmissible.” Hawaii,
Third, EO-3 contains internal incoher-encies that markedly undermine its stated “national security” rationale.
Moreover, E0-3’s individualized country findings make no effort. to explain why some types of visitors from a particular country are banned, while others are. not. See, e.g., EO-3 §§ 2(c) (describing Libya as having “significant inadequacies in its identity-management protocols” and therefore deserving of a ,ban on all tourist and business visitors, but without discussing why student, visitors did not meet the same fate); id. § 2(g) (describing the same for Yemen); cf. id. § 2(b) (describing Iran as “a state sponsor of terrorism,” which “regularly fails to cooperate with the United States Government in identifying security risks [and] is the source of significant terrorist threats,” yet allowing “entry by [Iranian] nationals under valid student (F- and M) and exchange visitor (J) visas”).
EO-3’s scope and provisions also contradict its stated rationale. As noted above, many of EO-3’s structural provisions are unsupported by verifiable evidence, undermining any claim that its findings “support the conclusion” to categorically ban the entry of millions.
The Government reads in- Sections 1182(f). and 1185(a) a grant of limitless power and absolute discretion to the President, and cautions that it would, “be inappropriate for this Court to second-guess” the “Executive Branch’s national-security judgements,” Mem, in Opp’n 22, or to engage in “unwarranted judicial interference in the conduct of foreign policy,” Mem. in Opp’n 23 (quoting Kiobel v. Royal Dutch Petroleum Co.,
These concerns are not insignificant. There is no dispute that national security is an important objective and that errors could have serious consequences. Yet, “[national security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power under § 1182(f).” Hawaii,
The actions taken by the President in the challenged sections of EO-3 require him to “first [] make sufficient findings that -the entry of -nationals from the six designated countries ... would be detrimental to the interests of the United States.” Hawaii,
B. Plaintiffs Are Likely to Succeed on the Merits of Their Section 1152(a) Claim
It is equally clear that Plaintiffs are likely to prevail on their claim that EO-3 violates the INA’s prohibition on nationality-based discrimination with respect to the issuance of immigrant visas. Section 1152(a)(1)(A) provides that “[e]x-cept as' specifically provided” in certain subsections not applicable 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.”
By indefinitely and categorically suspending immigration from the six countries challenged .by Plaintiffs,
For its part, the Government contends that Section 1152 cannot restrict the President’s Section 1182(f) authority because “the statutes operate in two different spheres.” “Sections 1182(f) and 1185(a)(1), along with other grounds in Section 1182(a), limit the universe of individuals eligible to receive visas, and then § 1152(a)(1)(A) prohibits discrimination on the basis of nationality mthin that universe of eligible individuals.” Mem. in Opp’n 29.
In making this argument, however, the Government completely ignores Hawaii See Mem, in Opp’n 29-32. In Hawaii, the Ninth Circuit reached the opposite conclusion: Section “1152(a)(l)(A)’s non-discrimination mandate cabins the President’s authority under § 1182(f) [based on several] canons of statutory construction” and that “in suspending the issuance of -immigrant visas - and denying entry based on nationality, [EO-2] exceeds the restriction of § 1152(a)(1)(A). and the overall statutory scheme intended by Congress.” Hawaii,
In short, EO-3 plainly violates Section 1152(a) by singling-out immigrant visa applicant’s seeking entry to the United States on the basis of nationality. Having considered the scope of the President’s authority under Section 1182(f) and the non-discrimination requirement of Section 1152(a)(1)(A), the Court determines that Plaintiffs have -shown a likelihood of success on the merits of their claim that EO-3 “exceeds - the restriction of Section 1152(a)(1)(A) and the overall statutory scheme intended by Congress.”
IV. Analysis of, TRO Factors: Irreparable Harm
Plaintiffs .identify a multitude of harms that are not compensable with monetary damages and that, are irreparable— among them, prolonged separation from family members, constraints to recruiting and retaining students and faculty members to foster diversity and quality within the University community, and the diminished membership of the Association, which impacts the yibrancy of its religious practices and instills fear.among its members. See, e.g., Hawaii,
Defendants, on the other hand, are not likely harmed by having to adhere to immigration procedures that have been in place for years — that is, by maintaining the status quo. See Washington,
V. Analysis of TRO Factors: The Balance of Equities and Public Interest Weigh in Fayor of Granting Emergency Relief
The final step in determining whether to grant the Plaintiffs’ Motion for TRO is to assess the balance of equities and examine the general public interests that will be affected. Here, the substantial controversy surrounding this Executive Order, like its predecessors, illustrates that important public interests are implicated by each party’s positions. See Washington,
National security and the protection of our borders is unquestionably also of significant public interest. See Haig v. Agee,
In carefully weighing the harms, the equities tip in Plaintiffs’ favor. “The public interest is served by ‘curtailing unlawful executive action.’ ” Hawaii,
Nationwide relief is appropriate in light of the likelihood of success on Plaintiffs’ INA claims. See Washington,
CONCLUSION
Plaintiffs have satisfied all four Winter factors, warranting entry of preliminary injunctive relief. Based on the foregoing, Plaintiffs’ Motion for TRO (ECF No. 368) is hereby GRANTED.
TEMPORARY RESTRAINING ORDER
It is hereby ADJUDGED, ORDERED, and DECREED that:
Defendant ELAINE DUKE, in her official capacity as Acting Secretary of Homeland Security; REX W. TILLERSON, in his official capacity as Secretary of State; and all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them who receive actual notice of this Order, hereby are enjoined fully from enforcing or implementing Sections 2(a), (b), (c), (e), (g), and (h) of the Proclamation issued on September 24, 2017, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats” across the Nation. Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court.
No security bond is required under Federal Rule of Civil Procedure 65(c).
Pursuant to Federal Rule of Civil Procedure 65(b)(2), the Court intends to set an expedited hearing to determine whether this Temporary Restraining Order should be extended. The parties shall submit a stipulated briefing and hearing schedule for the Court’s approval forthwith, or promptly indicate whether they jointly consent to the conversion of this Temporary Restraining Order to a Preliminary Injunction without the need for additional briefing or a hearing.
The Court declines to stay this ruling or hold it in abeyance should an emergency appeal of this order be filed.
IT IS SO ORDERED.
Notes
. Proclamation No. 9645, 82 Fed. Reg. 45161 (Sept. 24, 2017) [hereinafter EO-3].
. EO-3 § 2 actually bars the nationals of more than six countries, and does so indefinitely, but only the nationals from six of these countries are at issue here.
. Defendants in the instant action are: Donald J. Trump, in his official capacity as President of the United States; the United States Department of Homeland Security ("DHS”); Elaine Duke, in her official capacity as Acting Secretary of DHS; the United States Department of State; Rex Tillerson, in his official capacity as Secretary of State; and the United States of America.
.On October 14, 2017, the Court granted Plaintiffs' unopposed Motion for Leave to File Third Amended Complaint (ECF. No. 367), and, on October 15, 2017, Plaintiffs filed their Third Amended Complaint ("TAC”; ECF No. 381).
. This Court also enjoined the 120-day. suspension on refugee entry under Section 6. Hawaii v. Trump,
. After EO-2’s 90-day entry suspension expired, the Supreme Court vacated the IRAP injunction as moot. See Trump v. IRAP, No. 16-1436, — U.S. -,
. EO-3 is founded in Section 2 of EO-2. See EO-2 § 2(e) (directing that the Secretary of Homeland Security “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 [specified] countries").
. Plaintiffs assert the following causes of action in the TAC: (1) violation of 8 U.S.C. § 1152(a)(1)(a) (Count I); (2) violation of 8 U.S.C. §§ 1182(f) and 1185(a) (Count II); (3) violation of 8 U.S.C. § 1157(a) (Count III); (4) violation of the Establishment Clause of the First Amendment (Count IV); (5) violation of the Free Exercise Clause of the First Amendment (Count V); (6) violation of the equal protection guarantees of the Fifth Amendment’s Due Process Clause on the basis of religion, national origin, nationality, or alienage (Count VI); (7) substantially burdening the exercise of religion in violation of the Religious Freedom Restoration Act ("RFRA”), 42 U.S.C. § 200bb-l(a) (Count VII); (8) substantive violation of the Administrative Procedure Act ("APA”), 5 U.S.C. §§ 706(2)(A)-(C), through violations of the Constitution, INA, and RFRA (Count VIII); and (9) procedural violation of the APA, 5 U.S.C. § 706(2)(D) (Count IX).
. For example, on June 5, 2017, "the President endorsed the ‘original Travel Ban’ in a series of tweets in which he complained about how the Justice Department had submitted a . 'watered down, politically correct version’ ” to the Supreme Court. TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 3:29 AM EDT) https://goo. gl/dPiDBu). He further tweeted; "People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” TAC ¶ 86 (quoting Donald J. Trump (@realDonald Trump), Twitter (June 5, 2017, 3:25 AM EDT), https://goo.gl/9fsD9K). He later added; “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” TAC ¶ 86 (quoting Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 6:20 PM EDT), https://goo.gl/VGaJ7z). Plaintiffs also point to “remarks made on the day that EO-3 was released, [in which] the President stated: ‘The travel ban: The tougher, the better.' ” TAC ¶ 94 (quoting The White House, Office of the Press Sec’y, Press Gaggle by President Trump, Morristown Municipal Airport, 9/24/2017 (Sept. 24, 2017), https://goo. g]/R8DnJq).
. Plaintiffs do not seek to enjoin the entry ban with respect to North Korean or Venezuelan nationals. See Mem. in Supp. 10 n.4; ECF. No. 368-1.
. The Court does not reach the State's alternative standing theory based on the protection of the interests of its citizens as parens patriae. See Washington,
. , The State has asserted other proprietary interests including the loss of tourism revenue, a leading economic driver in the State. The Court does not reach this alternative argument because it concludes that the State’s proprietary interests, as an operator of the . University of Hawai’i, are sufficient to confer standing. See Hawaii,
. See, e.g., Sharma Decl. ¶¶ 4-9, ECF No. 370-8 (describing denial of visa to Syrian journalist and cancellation of University lecture since signing of EO-3)
. The Government insists that, consistent with' historical practice, the President may “restrict[] entry pursuant to §§ 1182(f) and IT 85(a)(1) without detailed public justifications or.findings;" citing to prior Executive Orders that “have discussed the President’s rationale in one or two sentences.” Mem. in Opp’n 20-21 (citing Exec. Order No. 12,807, pmbl. pt. 4, 57 Fed. Reg. 23133 (May 24, 1992); Exec. Order No. 12,172, § 1-101, 44 Fed. Reg. 67947 (Nov. 26, 1979)). Its argument is misplaced. The Government both ignores the plain language of Section 1182 and ihfers the absence of a prerequisite from historical orders that were not evidently challenged on thát basis; Its examples therefore have little force. By contrast, plainly aware of these historical orders, see Hawaii,
. In fact, "the only concrete evidence to emerge from the Administration on this point to date has shown just the opposite — that country-based bans are ineffective. A leaked DHS Office of Intelligence and Analysis memorandum analyzing the ban in EO-1 found that ‘country of citizenship is unlikely to be a reliable indicator of potential terrorist activity.' " Joint Deck of Former Nat'I Sec. Officials ¶ 10, EOF. 383-1 (quoting Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States, available at https://assets. documentcloud.org/documents/3474730/DHS-intelligence-document-on-President-Donald. pdf).
. As an initial matter, the explanation for how the Administration settled on the list of eight countries is obscured. For example, Section 1 describes 47 countries that Ad ministration officials identified as having an "inadequate” or "at risk” baseline performance, EO-3 §§ 1 (e) — (f), but does not detail how the President settled on the eight countries actually subject to the ban in Section 2 — the majority of which carried over from EO-2. While the September 15, 2017 DHS report cited in EO-3 might offer some insight, the Government objected (EOF. No. 376) to the Court’s consideration or even viewing of that classified report, making it impossible to know.
. See also Joint Deck of Former Nat'l Sec. Officials ¶ 12 ("[Although for some of the countries, the Ban applies only to certain non-immigrant visas, together those visas are far and away the most-frequently used non-immigrant visas from these nations.”).
. For example, although the order claims a purpose "to protect [United States] citizens from terrorist attacks,” EO-3 § 1(a), "the Ban targets a list of countries whose nationals have committed no deadly terrorist attacks on U.S. soil in the last forty years.” Joint Deck of Former Nat’l Sec. Officials ¶ 11 (citing Alex Nowrasteh, President Trump’s New Travel Executive-Order Has Little National Security Justification, Cato Institute: Cato at Liberty, September 25, 2017).
. EO-3 § 2(a)(ii) ("The entry into the United States of nationals of Chad, as immigrants ... is hereby suspended.”); id, §§ 2(b)(ii) (dictating the same for Iran), (c)(ii) (Libya), (e)(ii) (Syria), (g)(ii) (Yemen), (h)(ii) (Somalia).
. The Court finds that Plaintiffs have shown a likelihood of success on the merits of their claim that EO-3 violates Section 1152(a), but only as to the issuance of immigrant visas. To the extent Plaintiffs ask the Court to enjoin EO-3’s "nationality-based restrictions ... in their entirely,” as violative of Section 1152(a)(1)(A), Mem. in Supp. 16-17, the Court declines to do so. See Mem. in Supp. 16-17; see also Hawaii,