For the third time this year, President Donald J. Trump has issued an order banning the entry into the United States, with some exceptions, of nationals of multiple predominantly Muslim nations. At issue is whether this latest travel, ban should be enjoined by this Court because'it is the latest incarnation of the “Muslim ban” originally promised by President Trump as a candidate for the presidency, and thus violates the Establishment'Clause-of the First Amendment to the United States Constitution, or because the issuance of the travel ban exceeds the President’s delegated authority under the Immigration and Nationality Act to suspend the entry into the United States of classes of immigrants and nonimmigrants. For the reasons set forth below, the Court concludes that a preliminary injunction is warranted.
INTRODUCTION
On January 27, 2017, President Trump issued Executive Order 13⅜769, “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO-1”), 82 Fed. Reg. 8977 (Jan. 27, 2017), which barred -the entry into the United States of nationals of seven predominantly Muslim countries for a 90-day period. On February 7, 2017, Plaintiffs International Refugee Assistance Project (“IRAP”), HIAS, Inc., and seven individuals (collectively, “the IRAP Plaintiffs”), filed a Complaint in this Court alleging. that EO-1 violated the Establishment Clause of the First Amendment, U.S. Const. amend. I; the equal protection component of the Due Process Clause of the Fifth Amendment, U.S. Const. amend. V; the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101-1537 (2012); the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb to 2000bb-4 (2012); the Refugee Act, 8 U.S.C. §§ 1521-1524 (2012); and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706 (2012).
On March 6, 2017, after EO-1 was enjoined by other federal courts, President Trump issued Executive Order 13,780 (“EO-2”), which bears the same title as ÉO-1 and was scheduled to go into effect and supplant EO-1 on March 16, 2017. 82 Fed. Reg. 13209 (Mar. 9, 2017). Section 2(c) of EO-2 suspended for 90 days the entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. On March 10, 2017, the IRAP Plaintiffs amended their Complaint to seek the invalidation of EO-2, alleging the same causes of action pleaded in their original Complaint. The IRAP Plaintiffs also filed a motion for a preliminary injunction against the enforcement of EO-2, on Establishment Clause and INA grounds. On March 15, 2017, this Court enjoined enforcement of Section 2(c) after finding that the IRAP Plaintiffs were likely to succeed on their claim that EO-2 violated the Establishment Clause. Int’l Refugee Assistance Project v. Trump (“IRAP”),
On September 24, 2017, President Trump issued Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats” (“Proclamation”), which will bar indefinitely the entry into the United States of some or all nationals of Iran, Libya, Somalia, Syria, Yemen, Chad, North Korea, and Venezuela. 82 Fed. Reg. 45161 (Sept. 27, 2017).
On October 3, 2017, Iranian Alliances Across Borders (“IAAB”) and Doe Plaintiffs 1-6 (collectively, the “IAAB Plaintiffs”) filed a Complaint in this Court asserting that the Proclamation violates the INA, the Establishment Clause, the Free Speech Clause of the First Amendment, and the equal protection and procedural due process components of the Due Process Clause of the Fifth Amendment. On October 5, 2017, the IRAP Plaintiffs, now consisting of IRAP, HIAS, Middle East Studies Association (“MESA”), Arab-American Association of New York (“AAA-NY”), Yemeni-American Merchants Association (‘TAMA”), John Does No. 1 and 3-5, Jane Doe No. 2, Muhammed Meteab, Mohamad Mashta, Grannaz Amirjamshidi, Fakhri Ziaolhagh, Shapour Shirani, and Afsaneh Khazaeli, filed a Second Amended Complaint in which they repeated their prior causes of action and extended them to the Proclamation, added a second claim under the INA alleging that the Proclamation exceeded the President’s statutory authority, and added a claim that the Proclamation violated the procedural due process protections of the Fifth Amendment. On October 6, 2017, in a separate case, Eblal Zakzok, Sumaya Hamadmad, Fahed Mu-qbil, John Doe No. 1, and Jane Does No. 2-3 (collectively, “the Zakzok Plaintiffs”) filed a Complaint stating causes of action under the Establishment Clause, the INA, and the APA. On October 12, 2017, the IAAB Plaintiffs amended their Complaint to add the Iranian Students’ Foundation (“ISF”), an affiliate of IAAB at the University of Maryland College Park, as a Plaintiff. The IAAB Plaintiffs subsequently filed a Motion for Leave, which the Court has since granted, seeking to file declarations from representatives of ISF in support of the Motion for a Preliminary Injunction.
Each of these three separate cases name some or all of the following as Defendants: President Trump; the U.S. Department of Homeland Security; the U.S. Department of State; Elaine C. Duke, Acting Secretary of Homeland Security; Rex W. Tiller-son, Secretary of State; Dan Coats, Director of National Intelligence; Jefferson Beauregard Sessions, III, Attorney General; Kevin K. McAleenan, Acting Commissioner of U.S. Customs and Border Protection; James McCament, Acting Director of U.S. Citizenship and Immigration Services. All of the Plaintiffs seek injunctive and declaratory relief.
On October 6, 2017, the IRAP Plaintiffs filed a Motion for a Preliminary Injunction in which they ask this Court to enjoin the Proclamation in its entirety before it takes effect. The IAAB and Zakzok Plaintiffs have also each filed a Motion for a Preliminary Injunction and have joined in the arguments of the IRAP Plaintiffs. Defendants
FINDINGS OF FACT
I. Public Statements
On December 7, 2015, then-presidential candidate Donald J. Trump posted a “Statement on Preventing Muslim Immigration” on his campaign website in which he “eall[ed] for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on.” Joint Record (“J.R.”) 85. Trump promoted the Statement on Twitter that same day, stating that he had “[j]ust put out a very important policy statement on the extraordinary influx of hatred & danger coming into our country. We must be vigilant!” J.R. 209. In a March 9, 2016 interview with CNN, Trump stated his belief that “Islam hates us,” and that the United States had “allowed this propaganda to spread all through the country that [Islam] is a religion of peace.” J.R. 255-57. Then, in a March 22, 2016 Fox Business interview, Trump reiterated his call for a ban on Muslim immigration, asserting that his call for the ban had gotten “tremendous support” and that “we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” J.R. 261.
In a May 11, 2016 appearance on On the Record, Trump stated that he would ask former New York City Mayor Rudolph W. Giuliani to lead a group to “look at the Muslim ban or temporary ban,” that there “has to be something,” and that he had “[g]reat Muslim friends who are telling me you are so right. ... [T]here is something going on that we have to get to the bottom of.” J.R. 513. In a June 13, 2016 speech, Trump stated that “[w]e have to control the amount of future immigration into this country to prevent large pockets of radicalization from forming inside America,” noting that “[e]ach year, the United States permanently admits more .than 100,000 immigrants from the Middle East, and many more from Muslim countries outside the Middle East.” J.R. 528.
In a July 24, 2016 interview on Meet the Press soon after he accepted the Republican nomination, Trump was asked about the “Muslim ban.” J.R. 219. Trump responded that immigration should be “immediately suspended” “from any nation that has been compromised by terrorism until such time as proven vetting mechanisms have been put in place.” J.R. 219. When questioned whether this formulation was a “rollback” of his December 2015 call for a “Muslim ban,” Trump disagreed, stating “I don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories.” J.R. 220. He explained that “[p]eople were so upset when I used the word Muslim,” so he was instead “talking territory instead of Muslim.” Id. During the October 9, 2016 Presidential Debate, when asked by the moderator about his proposed “Muslim ban,” he explained that the “Muslim ban” had “morphed into an extreme vetting from certain areas of the world.” J.R. 591.
On December 21, 2016, when asked whether a recent attack in Germany affected his proposed Muslim ban, President-Elect Trump replied, “You know my plans. All along, I’ve proven to be right. 100% correct.” J.R. 245. In a written statement about the events, he. lamented the attack on people “prepared to celebrate the Christmas holiday” by “ISIS and other Islamic terrorists [who] continually slaughter
II. Executive Order 13,769
«On January 27, 2017, a week after his inauguration, President Trump issued EO-1 in which, pursuant to 8 U.S.C. § 1182(f), the President suspended for 90 days the entry into the United States of immigrant and nonimmigrants who were nationals of Iraq, Iran, Libya, Sudan, Somalia, Syria, and Yemen, based on his finding that such entry was “detrimental to the interests of the United States.” EO-1 § 3(c). Each of these countries has a predominantly Muslim population, including Iraq, Iran, and Yemen, which are more than 99 percent Muslim. The provision allowed for exceptions on a “case-by-case basis” when such an exception was “in the national interest.” EO-1 § 3(g). EO-1 also required changes to the refugee screening process “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.” EO-1 § 5(b). It further provided that during this 90-day period, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence (“DNI”), was to initiate a review process beginning with “a review to determine the information needed from any country” to assess whether an individual from that country applying for a “visa, admission, or other benefit ... is not a security or public-safety threat,” the generation of a list of countries that do not provide adequate information of this nature, and a consultation process to request such information from those countries.EO-1 § 3(a)-(d). At the- end of this review process, the Secretary of Homeland Security was required to “submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit entry of foreign nationals ... from countries that do not provide the information requested:” EO-1 § 3(e).
When preparing to sign EO-1, President Trump remarked, “This is the ‘Protection of the Nation- from Foreign Terrorist' Entry into the United States.’ We all know what that means.” J.R. 142. That same day, President Trump stated in an interview on the Christian Broadcasting Network that EO-1 would give preference in refugee applications to Christians. Referring to Syria, President Trump stated that “[i]f you were a Muslim you could come in, but if you were a Christian, it was almost impossible,” a situation that he thought was “very, very unfair.” J.R. 201. The day after EO-1 was issued, President Trump assured reporters that implementation of EO-1 was “working out very nicely and we’re going to have a very, very strict ban.” J.R. 123, That same day, Mayor Giuliani appeared on Fox News and asserted that President Trump told him he wanted a Muslim ban and asked Giuliani to “[s]how me the right way to do it legally.” J.R. 247. Giuliani,-in consultation with others, proposed that the action be “focused on, instead of religion ... the areas of the world that create danger for us,” specifically ‘‘places where there are'[sic] substantial evidence that people are sending terrorists into our country.” J.R. 247-248.
EO-1 prompted several legal challenges, including an action filed in the United States District Court for the Western District of Washifigton based on the Due Process, Establishment, and Equal Protection Clauses of the Constitution that resulted in a nationwide temporary restraining order (“TRO”) issued on February 3, 2017 against several sections of EO-1. See, e.g., Washington v. Trump, C17-0141JLR,
In response to the injunctions against EO-1, President Trump maintained at a February 16, 2017 news conference that EO-1 was lawful but that a new Order would be issued. J.R. 91. Stephen Miller, Senior Policy Advisor to the President, described the changes being made to the Order as “mostly minor technical differences,” emphasizing that the. “basic policies are still going , to be in effect.” J.R. 319. White House Press Secretary Sean Spicer stated that “[t]he principles of the [second] executive order remain the same” and described EO-1 as a legal exercise of the President’s power “to suspend immigration.” J.R. 78, 118. As. of February 12, 2017, Trump’s Statement on Preventing Muslim Immigration remained on his campaign website.- J.R. 207.
III. Executive Order 13,780
On March 6, 2017, President Trump issued EO-2, which was scheduled to go into effect and supplant EO-1 on March 16, 2017. Section 2(c)-of EO-2 reiterated the 90-day ban on entry into.the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen, but removed Iraq from the list. EO-2 applied only to individuals outside the United States who did not have a valid visa as of the issuance of EO-1 and who had not obtained one prior to the effective date of EO-2. In addition, the travel ban expressly exempted lawful permanent residents (“LPRs”), dual citizens traveling under a passport issued by a country not on the banned list, asylees, and refugees already admitted to the United States, and it provided a list of specific scenarios under which a case-by-case waiver could be granted.
To justify its restrictions on entry by nationals of the listed countries, EO-2 stated that “the conditions in these countries present heightened threats” because each country , is “a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” EO-2 § 1(d) (citing information from the State Department’s Country Reports on Terrorism 2015), EO-2 stated that, as a result, -the governments of the listed countries- were less willing or able to provide necessary information for the visa or refugee vetting process, .such that there was a‘heightened chance that individuals from these countries would be “terrorist operatives or sympathizers.” EO-2 § 1(d). EO-2 therefore concluded that the risk of admitting individuals from these countries was “unacceptably high” because the United States was unable “to rely on normal decision-making procedures” about their travel. EO-2 § l(b)(ii), (f). EO-2 disavowed that EO-1 was motivated by religious animus. - . .
EO-2 also stated that “Since 2001, hundreds of persons bom abroad have been convicted of terrorism-related-' crimes in the United States” and referenced two Iraqi refugees who were convicted of terrorism-related offenses and a naturalized U.S.
Like EO-1, EO-2 instructed the Secretary of Homeland Security, in consultation with the Secretary of State and the DNI, to conduct a worldwide review to determine whether additional information from foreign governments was needed to enable the United States to determine whether a foreign national applying for a visa or for admission was a security or public safety threat. The Secretary of Homeland Security was then required to submit a report within 20 days providing the results of the review, including listing countries that do not provide adequate information and identifying the needed information. The Secretary of State was then required to request that the listed countries begin providing the needed information within 50 days. At the end of the 50-day period, the Secretary of Homeland Security was to “submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit 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.” EO-2 § 2(f). The Secretary of Homeland Security could also identify other countries for other restrictions or limitations that would be appropriate.
The same day that EO-2 was issued, Attorney General Jefferson B. Sessions, III and Secretary of Homeland Security John F. Kelly submitted a letter to the President recommending a temporary suspension on the entry to the United States of nationals of certain countries so as to facilitate a review of security risks in the immigration system. Upon the issuance of EO-2, Secretary of State Rex Tillerson described it as “a vital measure for strengthening our national security.” J.R. 115. In a March 7, 2017 interview, Secretary of Homeland Security Kelly stated that the Order was not a Muslim ban but instead was focused on countries with “questionable vetting procedures,” but noted that there were 13 or 14 countries with questionable vetting procedures, “not all of them Muslim countries and not all of them in the Middle East.” J.R. 150. Other White House officials, noting that EO-2’s provisions were temporary, stated that the ban might be extended past 90 days and to additional countries. J.R. 116.
IV. Litigation on EO-2
On March 10, 2017, the IRAP Plaintiffs amended their Complaint to seek the invalidation of EO-2, alleging the same causes of action pleaded in their original Complaint. The IRAP Plaintiffs also filed a motion for a preliminary injunction against the enforcement of EO-2, on Establishment Clause and INA grounds. On March 15, 2017, this Court enjoined enforcement of Section 2(c) after finding that the IRAP Plaintiffs were likely to succeed on their claim that EO-2 violated the Establishment Clause. IRAP,
This Court’s Order was appealed to and in substantial part affirmed by the Fourth Circuit on May 25, 2017. IRAP,
Meanwhile, the Ninth Circuit affirmed in substantial part the preliminary injunction ordered - by the District of Hawaii on the grounds that EO-2 exceeded the President’s authority under the INA, primarily in that it did not contain a sufficient finding of detrimental interest as required by the statute and that it violated the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas. Hawaii v. Trump,
In light of the expiration of EO-2, the Supreme Court requested supplemental briefing on whether the case relating to EO-2 is now moot. Trump v. IRAP, No. 16-1436, — U.S. —,
V. Public Statements Since EO-2
At a March 16, 2017 rally, President Trump reported to the audience that EO-2 had been enjoined and described it as a “watered down version of the first one” that had been “tailor[ed]” by lawyers in response to prior legal challenges. J.R. 652-53. He emphasized that “we ought to go back to the first one and go all the way, which is what I wanted to do in the first place.” J.R. 653.
On May 21, 2017, President Trump delivered a speech in Riyadh, Saudi Arabia to Arab and Muslim leaders as part of the Arab Islamic American Summit. Speaking
In a June 3, 2017 tweet, President Trump emphasized the “need to be smart vigilant and tough,” and asserted, “We need the Travel Ban as an extra level of safety!” J.R. 662. In a series of tweets on June,5, 2017 referencing the court decisions relating to EO-1 and EO-2, President Trump stated, “[t]he 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!” J.R. 664. He reiterated that “[t]he Justice Dept, should have stayed with the original Travel Ban, not the watered down, politically' correct version they submitted to [the Supreme Court],” and advised the Justice Department to “ask for an expedited hearing of the watered down Travel Ban before the Supreme Court — & seek much tougher version!” Id. The following day, White House Press Secretary Sean Spicer stated that President Trump’s tweets should be “considered official statements by the president of the United States.” J.R. 667.
In ah August 17, 2017 tweet, Trump endorsed what appears to be an apocryphal story involving General John J. Pershing and a purported massacre .of Muslims with bullets dipped in a pig’s blood, advising people to “[s]tudy what General" Pershing ... did to ' terrorists when caught. There was no more Radical Islamic Terror for 36 years!” J.R. 679. In a September 15, ¡2017. tweet, President Trump again insisted that “the travel ban into the United States should be far larger, tougher and more specific-but stupidly, that would not be politically correct!” J.R. 705.
VI, Presidential Proclamation 9645
On September 24, 2017, President Trump issued Presidential Proclamation 9645, which immediately supplanted EO-2 as to foreign nationals who lack a credible claim of a bona fide relationship with a person or organization within the United States, and which is slated to go into effect on October 18, 2017 for all other individuals covered by its terms. The Proclamation stated that in a July 9, 2017 report issued pursuant to the requirements of EO-2, the Secretary of Homeland Security, in consultation- with the Secretary of State and the DNI, had selected baseline criteria for assessing the sufficiency of the information provided by foreign governments to permit the United States to confirm the identities of individuals seeking to enter the country and make a security assessment about them.
Three categories of information' were identified. The first is “identity-management information,” consisting of information necessary to confirm that individuals are who they claim’ to be. Criteria for assessing the sufficiency of information provided include whether a foreign government employs electronic passports embedded with data on the holder’s identity, reports lost or stolen passport's, and provides other identity-related information not contained in passports. The second category is “national security and public-safety information,” relating to whether individuals' seeking to enter the United States pose, a national security or public safety risk, the criteria for which include
According to the Proclamation, pursuant to the process set forth in EO-2, nearly 200 countries were evaluated based on these criteria. Of those, 16 nations were found to be “inadequate” and 31 were found to be at risk of becoming so. In accordance with Section 2(d) of EO-2, those nations were given 50 days to bring their information-sharing practices into compliance with United States expectations, At the end of that 50-day period, eight countries were determined to have continued inadequate information-sharing practices: Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen. In a September 15, 2017 report to the President (“the DHS Report”), the Acting Secretary of Homeland Security recommended that entry restrictions be imposed on all of those countries with the exception of Iraq. Although Somalia’s information-sharing practices were found to be adequate, the Acting Secretary of Homeland Security recommended that Somalia also be subjected to entry restrictions.
As a result, the Proclamation states that “absent the measures set forth in this proclamation, the immigrant and nonimmi-grant entry into the United States” of nationals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen (the “Designated Countries”) “would be detrimental to the interests,of the United States.” Proel, pmbl. Specifically, the Proclamation suspends the entry of all immigrants from seven of the. eight Designated Countries, excepting only Venezuela. The ban on entry by nonimmi-grants is “more tailored,” with a narrower ban imposed on countries with mitigating circumstances such as a willingness to play a substantial role in combatting terrorism. Proel. § l(h)(iii).
As to specific countries previously subject to EO-2’s travel ban, the Proclamation suspends entirely'the entry of Iranian nationals on both immigrant and nonimmi-grant visas, with an exception for individuals traveling on nonimmigrant, student (“F” and “M”) and exchange visitor (“J”) visas. However, Iranians traveling on F, M, and J visas are to be' subjected to enhanced screening and vetting. As justification, the Proclamation asserts that Iran is a source of significant terrorist threats and a designated state sponsor of terrorism, and that it fails adequately to cooperate with the United States to identify security risks, has at least one unspecified national security risk factor, and refuses to accept its nationals slated for deportation.
The Proclamation suspends entry of all Libyan nationals as immigrants, as well as entry of nonimmigrants using business (“B-l”), tourist (“B-2”), or business/tourist (“B-l/B-2”) visas. These restrictions are based on the conclusions that Libya, does not provide adequate public safety or terrorism-related information, has deficiencies in its identity-management protocols, has at least one unspecified national security risk factor, and does not reliably accept its nationals slated for deportation.
The entry of nationals from Somalia traveling on immigrant visas is suspended
Regarding Syria, the Proclamation suspends entirely the entry of all Syrian nationals, both immigrants and nonimmi-grants, on the basis that Syria does not cooperate with the United States in identifying security risks, is a source of significant terrorist threats and has been designated a state sponsor of terrorism, does not provide adequate public safety or terrorism-related information, has deficiencies in its identity-management protocols, and has at least one unspecified national security risk factor.
The Proclamation suspends entirely the entry of Yemeni nationals as immigrants, as well as entry of Yemeni nonimmigrants traveling under B-l, B-2, and B-l/B-2 nonimmigrant visas. As justification, the Proclamation notes that Yemen does not provide adequate public safety or terrorism-related information, has deficiencies in its identity-management protocols, has at least one national security risk factor, and has a terrorist presence.
As for countries identified for the first time in the Proclamation, entry of Chad nationals as immigrants is suspended entirely, as is entry of nonimmigrants using B-l, B-2, or B-l/B-2 visas. In support of this determination, the Proclamation asserts that Chad fails to provide adequate public safety and terrorism-related information, and that the nation has at least one unspecified national security risk factor.
All entry of North Korean visa holders, immigrant or nonimmigrant, is entirely suspended, because North Korea has reportedly failed in any way to cooperate or engage in information sharing with the United States.
Venezuela is the only designated country for which entry of immigrants is not suspended. Limitations on the entry of Venezuelan nationals are confined to barring entry of specific government officials and their immediate family members, who are suspended from traveling to the United States on B-l, B-2, and B-l/B-2 visas. All other Venezuelan nationals are to be subjected to enhanced screening and vetting procedures but are not otherwise banned from entry. The Proclamation reasons that although Venezuela fails to provide adequate terrorism-related or public safety information, has at least one unspecified national security risk factor, and does not reliably receive its nationals slated for deportation, there are other, unspecified sources available for verifying the identities of Venezuelan nationals.
These suspensions apply to foreign nationals of the Designated Countries who (1) are outside the United States on the applicable effective date of the Proclamation; (2) do not have a valid visa as of the applicable effective date of the Proclamation; and (3) are not among those entitled to receive a new visa or other travel document because their visas were revoked or canceled pursuant to EO-1. Excepted from the suspensions are a number of other individuals, including LPRs; dual nationals if traveling on a passport issued by a non-designated country; and foreign nationals who have been granted asylum status or who have been already admitted to the United States as refugees.
The Proclamation charges the Secretary of Homeland Security, in consultation with the Secretary of State, to devise a process for determining whether the suspensions should be continued, terminated, modified, or supplemented. At 180-day intervals, the Secretary of Homeland Security, after consultation with the Secretary of State, the Attorney General, the DNI, and any other appropriate agency heads, is to submit a report and recommendations to the President on whether any such- changes should be made, including whether similar suspensions should be imposed on additional countries. In addition, the Secretary of Homeland Security, after consulting, with these same officials, may recommend modifications to the list of suspended countries at any time.
As noted, the Proclamation is already in effect as to foreign nationals currently barred by EO-2. For all other covered foreign nationals, it becomes effective on October 18,2017.
In a joint declaration, 49 former national security, foreign policy, and intelligence officials who served in the White House, Department of State, Department of Homeland Security, Department of Defense, the Central Intelligence Agency, the United States Senate, and as ambassadors in Republican and Democratic Administrations, some of whom were aware of the available intelligence relating to potential terrorist threats to the United States as of January 19, 2017, state that “[a]s a national security measure,” the Proclamation is “unnecessary” and is of “unprecedented scope.” J.R. 770. Excluding North Korea and Venezuela, the Proclamation blocks over 150 million people from entering the United States on the basis of their nationality, despite the fact that “concrete evidence” has shown that “country-based bans áre ineffective.” J.R. 771. The officials note that the Proclamation has internal' inconsistencies, such as its uneven application to nonimmigrant visas, which are the most frequently used visas from the banned nations, and its failure to block individuals from non-Muslim majority countries with “widely-documented” problems with information sharing, such as Belgium. J.R. 773. On this score, the officials note that no terrorist acts have been committed on U.S. soil by nationals of the Designated Countries in the last 40 years, and that no. intelligence as of January 19, 2017 suggested any such potential threat. Nor, the former officials assert, is there any rationale for the abrupt shift from individualized vetting to group bans, particularly in light of the fact that the present system of individualized vetting places the burden of proving identity and eligibility for travel on the person seeking a visa.
VII. The Plaintiffs
Plaintiffs, a combination of 23 individuals (“the Individual Plaintiffs”) and seven organizations (“the Organizational Plaintiffs”), assert that they will suffer harm from the implementation of the Proclamation
Of the Organizational Plaintiffs, three primarily provide services to clients. IRAP provides legal sendees to its clients, displaced persons around the world seeking to come to the United States, to help them navigate the refugee or immigrant application process. HIAS provides a variety of services to refugees, including assisting their clients with refugee resettlement in the United States. AAANY primarily serves the Arab-American and Arab immi-' grant community in New York City by providing legal and other, services to its clients.
The remaining Organizational Plaintiffs convene events on issues relating to the Middle East or advocate on behalf of their members.' MESA consists of over 2,400 graduate students and faculty around the world focused on the field of Middle Eastern studies. YAMA, a membership organization 'Of Yemeni American merchants, sefeks to protect its members from harassment and to assist them with immigration issues. IAAB organizes youth camps, educational events, and international 'conferences for the Iranian diaspora, including inviting prominent scholars from outside the country to speak at events. ISF is an affiliate of IAAB and organizes events and fundraisers for its members, approximately 30 Iranian American students at the University of Maryland. Additional facts-relating to certain Organizational Plaintiffs are contained in the Court’s discussion of standing. See infra part I.A.
CONCLUSIONS OF LAW
In this Motion, Plaintiffs seek a preliminary injunction based on then- claims that the Proclamation violates (1) the Immigration
I. Justiciability
Defendants raise several arguments that Plaintiffs’ claims are not justiciable. Specifically, they assert’ that Plaintiffs lack standing, the claims are- not ripe, the claims are barred by the doctrine of consular nonreviewability, and .the statutory claims are not renewable under the APA.
A. Standing
Article III of the Constitution limits the judicial power of the federal courts to actual. “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1. To invoke this power, a litigant must have standing. Hollingsworth v. Perry,
1. Immigration and Nationality Act
The various Individual Plaintiffs assert standing based on the allegation that they are harmed by the prolonged separation from close family members who are unable to,.travel to the United States under the terms of the Proclamation. The Supreme Court has reviewed the merits of cases brought by U.S. residents with a, specific interest in the entry of a foreigner challenging the application of the immigration laws to that foreign individual. See Kerry v. Din, — U.S. —,
The United States Court of Appeals for the District of Columbia Circuit has found that U.S. citizens and residents have standing to challenge the denial of visas to individuals in whose entry to the United States they have an interest. See Abourezk,
Here, several Individual Plaintiffs, specifically IRAP Plaintiffs John Doe No. 4, John Doe No. 5, Jane Doe No. 2, Shapour Shirani, and Fakhri Ziaolhagh; IAAB Plaintiffs Doe Plaintiff No. 1, Doe Plaintiff No. 3, Doe Plaintiff No. 4, and Doe Plaintiff. No. 5; and Zakzok Plaintiffs Eblal Zakzok, John Doe No. 1, and Jane Doe No. 2 have standing to assert their claims that the Proclamation violates the INA. Each of these Plaintiffs are U.S. citizens or lawful permanent residents who have immediate family members who are nationals of the Designated Countries and currently in the process of securing a visa to come to the United States as immigrants. As one illustrative example, John Doe No. 4 is a U.S. citizen whose -wife is an Iranian national seeking an immigrant visa to join him in the United States. Other Plaintiffs, including IRAP Plaintiff Grannaz Amirjamshidi, IAAB Plaintiff Doe Plaintiff No. 6, and Zakzok Plaintiff Suma-ya Hamadmad have standing as U.S. citizens who are separated from close family members who are nationals of Designated Countries seeking nonimmigrant visas to travel to the United States. The Proclamation’s indefinite ban on the issuance of immigrant and nonimmigrant visas for nationals of the Designated Countries has imposed an actual, imminent injury on these Plaintiffs by prolonging their separation from their family members. See LAVAS,
This injury is “fairly traceable” to the challenged practice in that the implementation of the travel ban imposed by the Proclamation would cause the prolonged separation, and an injunction against the Proclamation would likely redress that injury. See Hollingsworth,
Here, several organizations have asserted sufficient injury to their proprietary and organizational interests to constitute an injury-in-fact for standing purposes. Both MESA and IAAB argue that the Proclamation will disrupt upcoming conferences and events in the United States by preventing individuals from the Designated Countries from attending. Specifically, the Proclamation would bar scholars from some of the Designated Countries from MESA’s annual meeting in November, including one prospective attendee from Iran, which would harm MESA financially because approximately half of MESA’s budget is derived from the annual meeting. The inability of scholars to travel to the annual meeting would also hinder the exchange of ideas among scholars and thus adversely impact MESA’s mission of “fostering study and public understanding of the Middle East.” J.R. 430-31. Likewise, the Proclamation will prevent Iranian nationals from attending lAAB’s International Conference on the Iranian Diaspora, scheduled for April 2018 in New York, at which scholars, students, journalists, artists,, and community leaders gather to exchange ideas on issues affecting the worldwide Iranian community. Where approximately half of the invited speakers for this event typically come from Iran, the inability of Iranian nationals to travel to the United States would hinder IAAB’s mission of, “addressing] issues affecting the Iranian Diaspora community.” Kharazzi Aff. ¶ 17, IAAB Mot. Prelim. Inj. Ex. 1, ECF No. 26-3. Although the Proclamation excepts Iranian nationals traveling on a student (F -and M) or exchange visitor (J) visa, such visas typically are for individuals enrolling in an academic or vocational program or in a specific exchange visitor program such as an au pair, summer camp, or summer work travel program. See 22 C.F.R. §§ 41.61-41.62 (2017); U.S. Dep’t of State, 9 Foreign Affairs Manual §§ 402.5-5-402.5-6. Attendees at educational, professional, or business conferences would generally use a B-l visa, which is now unavailable to Iranian nationals. See 9 Foreign Affairs Manual § 402.2-5(B)(5) (stating that one of the permitted activities on. a B-l visa is to “participate in scientific, educational, professional, or business conventions, conferences, or seminars”). The Proclamation also impacts IRAP’s ability to bring one of its Syrian-national employees back to the United States to participate in its annual, week-long strategic planning and training retreat at its headquarters in New York, which would adversely impact IRAP’s operations and mission.
These injuries are not “merely speculative.” Lujan v. Defenders of Wildlife,
MESA, IAAB, and IRAP also fall within the zone of interests protected by the INA. Where MESA’s purpose is to foster “study and public understanding of the Middle East,” J.R. 431-32, and IAAB is focused on “addressing] issues affecting the Iranian Diaspora Community, Kharazzi Aff. ¶ 17, these organizations necessarily engage in collaboration and exchange with foreign nationals who visit the United States. Accordingly, they necessarily have a substantial interest in the effective operation of the INA, particularly its provisions' for admitting foreign scholars and other foreign nationals ’to the United States as nonimmigrants to attend educational conferences. See, e.g., 9 Foreign Affairs Manual § 402.2—5(B)(5). Likewise, as an organization focused on refugee resettlement, IRAP has a need to engage foreign-national employees familiar with parts of the world with refugee populations and periodically to have those employees travel to and from the United States for planning, direction, and training. It, too, has an ongoing interest .in operation of the INA’s nonimmigrant visa provisions. See 9 Foreign Affairs Manual' § 402.2-5(B)(3) (stating that one of the permitted activities on a B-l visa is to “consult with business associates”), Thus, as organizations that depend on the entry of foreign nationals into the United States under the INA, MESA, IAAB, and IRAP are within the zone of interest of, the law. See Abourezk,
The Court also finds that these organizational injuries are fairly traceable to Defendants’ actions and likely to be redressed by a favorable decision because the Proclamation imposes an entry ban on nationals from the Designated Countries who would otherwise be able to apply for visas to enter the United States and participate in the organizational events. See Hollingsworth,
Finally, several organizations can assert standing as representatives of their members. To establish associational standing, an organization must establish that (1) its members would have standing to sue in their own right; (2) “the interests it seeks to protect are germane to the organization’s purpose”; and (3) “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Washington State Apple Advert.Comm’n,
MESA and YAMA both identify at least one individual member who is a U.S. citizen or LPR seeking to secure an immigrant visa for a close relative from one of the Designated Countries. MESA alleges that one of its members of Syrian descent is imminently filing a petition seeking an immigrant visa for his mother-in-law, a Syrian national. YAMA asserts that one of its members, “Ahmed,” is a U'.S. citizen whose wife has petitioned- for his Yemeni national wife and their five Yemeni national children to immigrate to the United States.
The interests raised by Plaintiffs’ claims are germane to the organizations’ purposes. MESA seeks to foster greater understanding and dialogue with Middle East nations, including one or more of the Designated Countries. YAMA,- in part, seeks to help Yemeni American business owners navigate immigration, issues they face. Plaintiffs’ interest im obtaining an injunction to preserve the ability of foreign nationals from the Designated Countries to travel to the United- States squarely relates to both of these missions. Finally, where the claims in these cases consist of constitutional and statutory challenges to the Proclamation, there is no discernible reason why the participation of individual members, as opposed to their representatives in the form of the organization, is required for the effective advancement of this lawsuit. With all the requirements met, the Court concludes that MESA and YAMA have standing to assert their INA claims on behalf of their members. See Hunt,
2. Establishment Clause
To have standing to assert an Establishment Clause claim, a plaintiff must meet the same elements as for any other claim: (1) a cognizable injury, (2) fairly traceable to the defendant’s actions; and (3) a likelihood that the' injury will be redressed by a favorable decision. Suhre v. Haywood Cty.,
Here, multiple Individual Plaintiffs have asserted "personal contact” with the Proclamation’s alleged Establishment Clause violation to demonstrate standing. As discussed above, multiple Plaintiffs have asserted that they have been personally injured by the Proclamation through the harm of prolonged separation from close relatives who would be barred from entry to the United States under the Proclamation. See supra Part I.A.1. Thus, contrary to Defendants’ claim, they are asserting a personal injury sustained as a consequence of the alleged constitutional error, not an injury to others. See Suhre,
Several of these Plaintiffs have also asserted specific, intangible injuries resulting from this personal contact with the alleged Establishment Clause violation. Among the IRAP Plaintiffs, John Doe No. 4 states that he “felt insulted” by EO-1 and received “more suspicious looks from people,” which caused him to feel that “I am being labeled as a Muslim more often,” and that the Proclamation “has made me feel this more strongly” such that “I continue to feel demeaned by the ban.” J.R. 461-62. Jane Doe No. 2 states that she understands the Proclamation to fulfill campaign promises to condemn her religion, which has made her feel depressed and has caused her to question whether to remain in the United States because she does not want her children to face discrimination. Afsaneh Khazaeli states that the Proclamation and the predecessor travel bans have made him feel like a “second-class citizen” and has made his family the target of abuse and discrimination. J.R. 465-66. Shapour Shirani states that the anti-Muslim nature of the travel ban has made the separation from his wife “more painful,” and the Proclamation has made him “feel even worse” and worry that discrimination against Muslims will persist and interfere with his rights. J.R. 476-77.
Of the IAAB Plaintiffs, Doe Plaintiff No. 2, Doe Plaintiff No. 3, Doe Plaintiff No. 5, and Doe Plaintiff No. 6 have all expressed similar intangible harms arising from the Proclamation’s alleged Establishment Clause violation. For example, Doe Plaintiff No. 2 states that because the Proclamation “targets” her based on her religion, “I feel insecure and I fear for my safety and the safety of my loved ones,” and “I feel that I am being treated as an outsider in my own country.” Jane Doe No. 2 Aff. ¶ 9, IAAB Mot. Prelim. Inj. Ex. 3, ECF No. 26-5. Doe Plaintiff No. 3 has stated that she fears the Proclamation will result in “more hatred and attacks against my community” such that “I fear for my safety and the safety of my loved ones.”' Jane Doe No. 3 Aff. ¶ 9, IAAB Mot. Prelim. Inj.
Zakzok Plaintiffs Fahed Muqbil, Eblal Zakzok, Sumaya Hamadmad, John Doe No. 1, Jane Doe No. 2, and Jane Doe No. 3 all express that they feel condemned, stigmatized, attacked, or discriminated against as a result of the Proclamation. For example, Fahed Muqbil feels “as if I and my fellow American Muslims are unwanted, different, and somehow dangerous” as a result of the Proclamation. Fahed Muqbil Decl.¶ 15, Zakzok Mot. Prelim. Inj. Ex. 1, ECF No. 6-1.
These feelings of marginalization constitute an injury in fact in an Establishment Clause case. See Moss,
' Finally, MESA and YAMA, which have standing to assert an INA claim based on their representation of members injured by the Proclamation, likewise have standing to assert an Establishment Clause claim on behalf of their members. As discussed above, both have asserted that at least one specific member faces prolonged separation from a close relative, as a result of the Proclamation. See supra Part I.A.1. Both also assert that the same member has experienced feelings of marginalization or emotional distress as a result of the Proclamation’s alleged anti-Muslim message. According to MESA, the various versions of the travel ban have caused its member “extreme stress” and “ma[d]e him feel unwelcome, even more so now that he is a citizen.” J.R. 429. According to YAMA, Ahmed, one of its members facing a prolonged separation from family, states that the ban has made him “scared here in the United States because the message is coming from the highest people in government that Muslims are terrorists.” J.R. 486.
Where both of these organizations have at least one member with both a personal contact with the alleged establishment of religion and a direct injury as a result of it, the injury-in-fact requirement has been satisfied. Since MESA serves to foster understanding of the Middle East, in which there are many predominantly Muslim nations, and YAMA was founded in part to oppose what its members perceived to be a Muslim ban arising from EO-1, the interests they seek to protect through an Establishment Clause claim are germane to their organizations’ purposes. Hunt,
B. Ripeness
The Government also argues that Plaintiffs’ claims are not ripe because their relatives have not yet been denied both a visa and a waiver. For the Individual Plaintiffs discussed above whose family members are already in the process of seeking visas, denial of visas is generally mandated because they are ineligible based on the plain language of the Proclamation. Although a claim is generally not ripe if it is based on contingent future events, Texas v. United States,
In assessing ripeness, courts are to consider the fitness of the issues for decision and the hardship to the parties of withholding judicial consideration. See Nat’l Park Hospitality Ass’n v. Dep’t of Interior,
C. Consular Nonreviewability
Defendants argue that Plaintiffs’ claims are not justiciable pursuant to the doctrine of consular nonreviewability, citing Saavedra Bruno v. Albright,
Plaintiffs, however, challenge not individual" visa decisions by consular officers, but the overarching travel ban policy imposed by the Proclamation. See Hawaii,
D. APA
Defendants assert that..the APA has foreclosed the Plaintiffs’ statutory claims on multiple grounds. The APA provides standing for any party that is “adversely affected or' aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702; see LAVAS,
First, Defendants argue that Plaintiffs cannot bring a claim under the APA because they are not “adversely affected or aggrieved” within the meaning of the APA. As discussed above; the Individual Plaintiffs and several Organizational Plaintiffs are within the zone of interests of the INA and are injured by the denial of immigrant or- nonimmigrant visas for family members or expected conference attendees. See supra Part I.A1. They are thus “adversely affected or aggrieved” by Defendants’ use of their authority under the INA. 5 U.S.C. § 702; see LAVAS,
Second, Defendants assert that judicial review is not available because the Proclamation was issued by the President, not the head of a federal department or agency, and thus is not a “final agency action” within the meaning of the APA. In Franklin v. Massachusetts,
Third, Defendants claim that review of the Proclamation is foreclosed by 5 U.S.C. § 701(a)(2) as “committed to agency discretion by law.” Under their view, Congress committed the use of § 1182(f) to the sole discretion of the President, such that a reviewing court has no manageable standard by which to evaluate it. Despite the Government’s asserted claim of a lack of intelligible standard, courts have had no difficulty reaching the merits of challenges to the President’s use of § 1182(f). See Sale v. Haitian Ctrs. Council,
More generally, courts have regularly reviewed Presidential action, including action taken in the context of foreign policy and immigration, to ensure that it fits within the bounds of federal statutes. See, e.g., Sale,
II. Legal Standard
To obtain a preliminary injunction, moving parties must establish that (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc.,
III. Likelihood of Success on the Merits
Because “courts should be extremely careful not to issue unnecessary
A. Immigration and Nationality Act
Plaintiffs assert that the Proclamation violates provisions of the INA. The formulation of immigration policies is entrusted exclusively to Congress. Galvan v. Press,
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).
Congress has also authorized the President to take action relating to entry into the United States in what is now Section 215(a) of the INA, codified at 8 U.S.C. § 1185(a) (“§ 1185(a)”):
Unless otherwise ordered by the President, it shall be unlawful—
(1) 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). The Proclamation relies on these two provisions as the statutory authority for the President’s action.
Plaintiffs assert that the Proclamation violates the INA in three ways. First, they argue, as they did in challenging EO-2, that the Proclamation violates Section 202(a) of the INA, codified at 8 U.S.C. § 1152(a) (“§ 1152(a)”), which bars discrimination on the basis of nationality in the issuance of immigrant visas. Second, they assert that the Proclamation fails to comply with the requirement in § 1182(f) that the President find that the suspension of entry by nationals from the Designated Countries would “be detrimental to the interests of the United States.” Third, they contend that the Proclamation exceeds the authority granted by § 1182(f) because it effectively re-writes portions of the INA or otherwise intrudes on Congress’s legislative power.
1. Nationality Discrimination
Plaintiffs argue that the Proclamation’s suspension of entry into the United States by immigrants from the Designated Countries violates the INA’s bar on discrimination based on nationality in the issuance of immigrant visas. In opposition, the Government asserts that the Proclamation was lawful because it was issued pursuant to § 1182(f), which grants the President broad authority to bar the entry of immigrants, and that the non-discrimination provisions of. § 1152(a) do . not limit the President’s § 1182(f) authority.
Section 1152(a) provides that, with certain exceptions:
No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence[.]
8 U.S.C. § 1152(a)(1)(A).
Section 1152(a) was enacted as part of the Immigration and Nationality Act of
In reviewing the motion for a preliminary injunction of EO-2, this Court considered the interplay between § 1182(f) and § 1152(a)' and concluded, based on canons of statutory construction, that the President’s authority under § 1182(f) is limited by-the § 1152(a) bar on discrimination based on nationality in the issuance of immigrant visas. See. IRAP,
Finally, it is highly significant that § 1152(a) explicitly, excludes certain sections of the INA from its .scope, specifically §§ 1101(a)(27), 1151(b)(2)(A)(i), and 1153, but -does not exclude § 1182(f) or § 1185(a) from its reach.. 8 U.S.C. § 1152(a)(1)(A). The absence of any reference to § 1182(f) or § 1185(a) among these exceptions provides strong. evidence that Congress did not intend for those provisions to be exempt from the anti-discrimination provision of § 1152(a). United Dominion Indus., Inc. v. United States,
This conclusion is consistent with that of the Ninth Circuit, which found a likelihood of success on the merits of the claim that EO-2’s ban on entry by immigrants based on nationality exceeded the President’s § 1182(f) authority, concluding that “§ 1152(a)(l)(A)’s non-discrimination mandate cabins the'President’s authority under § 1182(f).” Hawaii,
The Government argues that the Proclamation does not conflict with § 1152(a) because it suspended the entry of immigrants, not the issuance of visas. There .is a textual difference. Section 1182(f) authorizes the President to bar “entry” to certain classes of aliens. 8 U.S.C. § 1182(f). Section 1152(a) bars discrimination based on nationality in the “issuance of an immigrant visa.” Id. § 1152(a)(1)(A). These activities, however, usually go hand-in-hand. An immigrant cannot seek entry without first obtaining an immigrant visa. But receiving an immigrant visa is meaningless without later receiving permission to enter. Thus, the denial of entry to immigrants would generally have the. effect of causing the denial of immigrant.visas. See Hawaii,
There may be scenarios under which denial of entry based on nationality under § 1182(f) or § 1185(a) could be deemed to have such a limited impact that it would not also effect a denial of an immigrant visa, For example, a nationality-based denial of entry of limited duration, such, as during a specific urgent national crisis or public health emergency, that, was not designed to halt visa issuances but instead simply to impose a delay or limitations on migration, arguably would not result in discrimination in the issuance of immigrant visas in violation- of § 1152(a). President Reagan’s. 1986 decision to bar entry to Cuban nationals in' retaliation for Cuba’s suspension of an. immigration agreement and facilitation of illegal migration into the United States, the only historical example of the use of § 1182(f) authority to.bar entry, based on nationality, falls into this category.. That bar of entry, by- its own terms, was to continue, only until “the restoration of normal migration procedures between the two countries.” Proclamation 5,517, 51 Fed. Reg. 30,470 (Aug. 22, 1986). Likewise, President Carter’s invocation qf 8 U.S.C. § 1185(a)(1) in response to the Iran Hostage Crisis authorized “limitations and exceptions on the rules and regulations governing the entry” of Iranians into the United States without any reference to visa issuance. Exec. Order 12,172, 44 Fed. Reg. 67947 (Nov. 26, 1979); Exec. Order 12,206, 45 Fed. Reg. 24,101 (Apr. 7, 1980). Accordingly, when considering EO-2, which imposed only a 90-day “temporary
Here, however, the Proclamation has no specified end date and no requirement of renewal. Where the Proclamation has effectively imposed a permanent, rather than temporary, ban on immigrants from the Designated Countries, and has effectively stopped the issuance of immigrant visas indefinitely, the bar on entry is the equivalent of a ban on issuing immigrant visas based on nationality. This conclusion is supported by the Proclamation itself, which, even more than EO-2, makes clear that its intended effect is to deny the issuance of immigrant visas, in violation of § 1152(a). First, unlike EO-2, which generally barred entry by nationals of the Designated Countries, the Proclamation explicitly and specifically targets nationals seeking to immigrate to the United States. The Proclamation states, “For all but one of those 7 countries ... I am restricting the entry of all immigrants.” Proel. § l(h)(ii). Second, the text of the Proclamation reveals that its primary effect is not that nationals of the Designated Countries holding immigrant visas will be denied entry at the border by CBP, but that the State Department and consular officers will stop issuing immigrant visas to such nationals. Indeed, the Proclamation actually permits entry by any nationals holding approved visas. Id. § 3(a)(iii). Thus, as a result of the Proclamation, Defendants will effect the travel ban by no longer issuing immigrant visas to nationals of the Designated Countries. Moreover, the fact that the Proclamation provides that the Secretary of State and consular officers may grant waivers to the entry ban, Proel. § 3(c), further reveals that the Proclamation generally imposes a ban on visa issuance, because those officials’ statutory role is to issue visas, not to oversee actual entry into the United States. See 8 U.S.C. § 1101(a)(16) (stating that an “immigrant visa” is “issued by a consular officer”). Indeed, the Proclamation erases the line between the issuance of a visa and entry into the United States when it specifically provides that a waiver issued by a consular officer “will be effective both for the issuance of a visa and for any subsequent entry on that visa.” Proel. § 3(c)(iii). Finally, any claim that the Proclamation relates only to the question of entry to the United States is belied by its multiple references to visa issuance, including the provision stating that “visa adjudications for nationals of Somalia and decisions regarding their entry as nonim-migrants should be subject to additional scrutiny.” Proel. § 2(h)(ii). Notably, the State Department publicly describes the Proclamation not as limiting entry, but as a “Presidential Proclamation on Visas.” New Presidential Proclamation on Visas September 2⅛, 2017, U.S. Department of State, Bureau of Consular Affairs (Sept. 24, 2017), https://travel.state.gov/content/ travel/en/news/important-announcement. html. Because § 1152(a) does not permit such discriminatory denials of immigrant visas, the Proclamation exceeds the President’s statutory authority under § 1182(f) and § 1185(a). See Abourezk,
Defendants’ remaining arguments do not alter this conclusion. Defendants un-persuasively claim that § 1182(f) and § 1185(a) do not conflict with § 1152(a) because they “limit the universe of individuals eligible to receive visas” to which the non-discrimination provision of § 1152(a) would apply. This argument fails because there is nothing in the text of either statute
Likewise, the Court finds unpersuasive Defendants’ assertion that nationality discrimination is permissible under 8 U.S.C. § 1152(a)(1)(B), which states that “[n]othing in [§ 1152(a)] 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.” This provision applies only to the Secretary of State and thus does not provide a basis to uphold discriminatory-action in a Presidential-Proclamation. More importantly, where the Proclamation now imposes an indefinite travel ban based on nationality, rather than a 90-day “pause,” such an action cannot fairly be construed as a change in “procedures” or the “location” of visa processing. § 1152(a)(1)(B).
The Court therefore finds that Plaintiffs are likely to succeed on the merits of their claim that the Proclamation violates the non-discrimination provision of § 1152(a) to the extent that it bars entry .by immigrants on the basis of nationality. Because this argument does not apply to nonimmi-grants seeking entry to the United States, the Court must consider Plaintiffs’ remaining statutory arguments.
2. Section 1182(f) Finding
Plaintiffs further contend that the President has failed to make an adequate finding to support his invocation of authority under § 1182(f). Section 1182(f) requires that the President find that the entry of a-class of aliens would be detrimental to the interests of the United States. 8 U.S.C. § 1182(f) (emphasis added); see also Hawaii,
The President explicitly made the finding that “absent the security measures set forth in this proclamation, the. immigrant and nonimmigrant entry into the United States of persons” barred from entry by the proclamation “would be detrimental to the interests of the United States.” Proel, pmbl. In support of that finding, the Proclamation describes two purposes. First, the Proclamation helps to prevent the “entry of those foreign nationals about whom the United States Government lacks sufficient information to assess the risks they pose to the United States.” Proel. § l(h)(i). Sec-. ond, the Proclamation will help “elicit improved identity-management and information-sharing protocols and practices from foreign governments” and thus “advance foreign policy, national security, and coun-terterrorism objectives.” Id. The Proclamation contains additional information in support of-its conclusion that a ban on entry of Designated Country nationals will
Plaintiffs assert compelling arguments that the Proclamation’s nationality-based restrictions are not actually necessary. Under current policy, applicants for immigrant or nonimmigrant visas, not their governments, are required to produce the information necessary to demonstrate that they are eligible, to enter the United States. See 8 U.S.C. § 1361. Dozens of former national, security officials have stated that this travel ban is unnecessary, that it serves no national security purpose, and that there is no evidence that the United. States needs ,to shift away from this individualized vetting system to .nationality-based- bans. See Joint Decl. of Former Nat’l Sec. Officials, J.R. 770. Notably, the Proclamation does not provide examples of vetting failures involving nationals from the Designated Countries that resulted in the' entry of terrorists or others who should not have been admitted.
Plaintiffs also question the choicés made in the Proclamation' given that Somalia met the Proclamation’s baséline criteria and was included in the entry -ban, while Iraq did not meet the baseline criteria but was not included. Procl. § 1(g), 2(h). Further, the Proclamation appears to be over-broad with regard to its purported goals. It prohibits almost all Designated Country nationals from entering the United States, regardless, of age, health,-or even connection to the Designated Country itself. At least one of the Plaintiffs, Dr. Sumaya Hamadmad, seeks to reunite with her sister, a Syrian national who has - spent her entire-life in Jordan, about whom -the Syrian government would have no relevant information.
Under a more robust standard of review, these criticisms might carry the day. But there is no requirement that a § 1182(f) entry restriction meet more stringent standards found elsewhere in the law, such as that it be “narrowly tailored” or the “least restrictive means”- to obtain its stated aims. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
3. Section 1182(f) Authority
Lastly, Plaintiffs argue that the Proclamation’s ban on entry of nationals from the Designated Countries exceeds the authority granted to the President in § 1182(f). Specifically, Plaintiffs assert that the Proclamation effectively revises the IlSTA by imposing alternative visa issuance criteria that conflict with statutory criteria and thereby overrides. Congress’s policy judgments, particularly those made in establishing the Visa Waiver Program (“VWP”). Defendants counter that (1) the issue of whether the Proclamation exceeds the authority granted in § 1182(f) is not judicially reviewable; and (2) even if subject to review, the Proclamation is an appropriate use of the President’s broad authority under § 1182(f). Although the Proclamation also relies on § 1185(a)(1), the parties do not argue that this section provides broader authority than § 1182(f). Therefore, the Court need only consider whether the Proclamation exceeds the President’s delegated authority under § 1182(f).
The Court first addresses Defendants’ claim that the President’s exercise of authority-pursuant to § 1182(f) is not subject to judicial review. In Defendants’ view, review of § 1182(f) would be inappropriate because it would amount to a second-guessing of a decision that is appropriately committed to the President. Yet the Supreme Court had no difficulty reaching the merits of a challenge asserting that the President’s use of § 1182(f) to blockade illegal migrants from Haiti viblat-ed another provision of the INA. See Sale,
Plaintiffs’ claim centers on two alleged transgressions. First, Plaintiffs argue that the Proclamation imposes new criteria on the issuance of visas that con-fliet
Arguably, these criteria conflict with Congress’s detailed system governing the issuance of immigrant and nonimmigrant visas. As part of this system, Congress places on applicants for visas the burden to establish eligibility, including to show that they do not fall into any categories of individuals ineligible for visas. See 8 U.S.C. § 1361; id. § 1182(a). These categories include those with possible links to terrorism or criminal activity. See 8 U.S.C. §§ 1182(a)(2)-(3)(B). Plaintiffs thus assert, with some force, that the Proclamation adds additional criteria that nationals of the Designated Countries must satisfy before they can obtain an immigrant or non-immigrant visa to gain entry to the United States. This addition of such criteria, Plaintiffs argue, impermissibly replaces Congress’s list of criteria with the President’s own. The Court agrees that, as constructed, the Proclamation effectively adds new criteria for the issuance of visas and entry by nationals of certain countries beyond those formally imposed by Congress.
Second, Plaintiffs argue that the Proclamation exceeds the bounds of § 1182(f) because it conflicts with Congress’s policy judgments in addressing the same problem purportedly addressed by the Proclamation: poor information sharing by foreign governments. As evidence, Plaintiffs reference the VWP, established by Congress, which allows nationals of certain foreign countries to enter the United States for periods of less than 90 days without a visa. 8 U.S.C. § 1187(a)(1). To be eligible for this program, a country must meet certain standards relating to cooperation and the sharing of information with the United States. § 1187(c)(2). Notably, many of the standards applied to determine if a country qualifies for the VWP are strikingly similar to those considered in the Proclamation. For example, among the criteria for VWP eligibility are whether a country provides its nationals with an electronic machine-readable passport containing biographic and biometric data, § 1187(a)(3), and whether the country reports lost and stolen passports to the United States, § 1187(c)(2)(D). The Proclamation lists
Further, the Proclamation imposes a travel ban on some of the same nations, based on the some of the same criteria, on which Congress imposed lesser restrictions in its recent amendments to the VWP. In 2015, Congress amended the VWP to exclude individuals from participating countries who- were dual citizens of, or had traveled to, Iraq, Syria, a country designated by the State Department as a state sponsor of terrorism (Iran, Syria, and Sudan), or other countries designated by the Department of Homeland Security (Libya, Somalia, and Yemen). See Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, Pub. L. No. 114-113, Div. O, Title II, § 203, 129 Stat. 2242 (codified at 8 U.S.C. § 1187(a)(12)). For example, a French national who had traveled to Syria or was also a Syrian national would not- be eligible for visa-free travel to the United States, even though France is a VWP country. Instead, Congress required such an individual to apply for a nonimmigrant visa and submit to a consular interview and adjudication by a consular officer. See 8 U.S.C. § 1187(a)(12). In light of this statutory scheme, Plaintiffs argue that the Proclamation exceeds the bounds of § 1182(f) because it conflicts with Congress’s policy judgments relating to the same issues and same nations. The Court agrees with Plaintiffs that the Proclamation addresses some of the same issues considered by Congress, specifically, information sharing by foreign nations relating to travel .of foreign nationals to the United States and the consequences for failing to engage in it, and that the Proclamation imposes significantly more restrictive limitations that go beyond what Congress has previously imposed.
Contrary to the Defendants’ characterization, Plaintiffs’ claim is not one of implied repeal. See Branch v. Smith,
However, this theory is undermined in two ways. First, with respect to the new visa issuance criteria arising from the waiver provisions, § 1182(f) explicitly grants the President the authority not just to suspend entry, but to “impose on,the entry of aliens any restrictions he may deem to be appropriate.” 8 U.S.C. § 1182(f). Thus, even if the waiyer require^ ments are deemed to be additional criteria that must be met by an alien seelqng admission, a fair reading of § 1182(f) is that it allows the President to impose such additional restrictions outside of previously listed,.requirements.
Second, it is not clear that the Proclamation directly conflicts with.the judgments reflected in Congress’s construction of the VWP. The VWP covers certain participating countries that have agreed to abide by certain conditions set by the United States, including information-sharing conditions, in exchange for visa-less travel to the United States for their nationals. See 8 U.S.C. § 1187(c)(2). It does not directly address whether nationals of certain non-VWP countries should be subject to even greater scrutiny than the - standard visa issuance process. Likewise, the 2015 amendments related to the treatment of nationals of VWP countries who were either dual nationals of or had traveled to certain countries, including five of the countries covered by the Proclamation. See Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 § 203. Those individuals are not affected by the Proclamation. See Procl. § 3(b)(iv) (excepting dual nationals of Designated Countries traveling on a passport of a different country). Thus, although the Proclamation and the VWP address similar problems and consider similar factors, the 'two are not in such conflict that the 'VWP could fairly be deemed to foreclose the restrictions imposed through the Proclamation pursuant to § 1182(f).-The Court therefore does not conclude that there is a likelihood of success on the claim that the Proclamation has effectively legislated changes to the INA in. contravention of Congressional intent. .
, Finally, Plaintiffs - point, to the sheer scope of the Proclamation and argue that it must be beyond the limit of any authority delegated by- Congress. Indeed, the Proclamation is unique among past invocations of § 1182(f), Of the 42 proclamations issued- pursuant to § 1182(f) or § 1185(a)(1) prior to EO-1, none have sought to. ban entry by nationals of more than one country at , once, let alone eight countries with approximately 150 million nationals. See Kate M. Manuel, Cong. Research
But other than the specific nationality restriction of § 1152(a), Plaintiffs have not identified, nor has the Court found, any .dear limit- on the President’s authority under § 1182(f) that this proclamation has crossed. Nor have Plaintiffs cited any case where a court has struck down a § 1182(f) order as beyond, the scope of that provision. In the only Supreme Court decision considering such an argument,- the- Court held that the statute gave “the President ample power to establish a naval blockade” to prevent Haitian-migrants from entering the United States. Sale,
The text of the statute itself is similarly unhelpful for discerning its limit. As discussed-above, § 1182(f) does not impose a time limit on the President, stating that any restriction is “for such period as he shall deem necessary.” 8 U.S.C. § 1182(f). The President can impose restrictions on “any aliens or [ ] any class of aliens ” Id. The President is not required to find that entry would be detrimental to the nation’s security, only to its “interests,” a term that encompasses any number of reasons. Id.
Nevertheless, Plaintiffs are correct that there must be some limit on § 1182(f) authority. See, e.g., Kent v. Dulles,
B. Establishment Clause
Plaintiffs assert that the Proclamation’s ban on citizens from the Designated Countries is the next step in a “clear and direct chain” that began with President Trump’s campaign promise to ban Muslims from entering the United States and continued through EO-1 and EO-2. IRAP Mot. Prelim. Inj. at 24. They argue that the Proclamation therefore violates the Establishment Clause.
1. Legal Standard
Defendants first argue that Plaintiffs’ Establishment Clause claim summarily fails upon application of the standard set forth in Kleindienst v. Mandel,
There are persuasive reasons to conclude that the Mandel standard does not apply to Plaintiffs’ Establishment Clause claim. First, there is a more recent line of cases recognizing that courts must not simply defer to the political branches when constitutional rights are at stake. See Zadvydas v. Davis,
Nevertheless, in light of the Fourth Circuit’s application of Mandel to its review of EO-2, see IRAP,
Here, the Proclamation states that the President, pursuant to § 1182(f) and § 1185(a), is suspending entry into the United States of nationals from the Designated Countries “to protect the security and interests of the United States and its people.” Proel, pmbl. This national security interest is a facially legitimate reason for the actions set forth in the Proclamation, to the extent authorized by those statutes. See Din,
Plaintiffs, however, assert that the Proclamation’s proffered national security rationale is not the true motivation behind the restrictions, but is instead a pretext for an anti-Muslim bias. In support of their assertion of bad faith, Plaintiffs, as part of their challenge to EO-2, previously offered President Trump’s statements during his presidential campaign calling for a “Muslim ban”; his statements that he would fulfill his campaign promise of a Muslim ban by focusing on territories rather than religion; EO-1, adopted without agency consultation, which targeted only majority-Muslim countries and contained preferences for religious minorities within those countries; and statements of President Trump and his advisors that EO-2 had the same policy goals as EO-1. Plaintiffs also pointed to the continued focus in EO-2 on countries with majority-Muslim populations, and what they asserted was a lack of correlation between the stated national security aims of EO-2 and the mechanisms outlined to achieve it. Based on these facts, this Court concluded that the primary purpose for EO-2 was to effect the equivalent of a Muslim ban. IRAP,
Having found that Plaintiffs have plausibly alleged .that the Government’s stated, facially legitimate, reason for the Proclamation is not bona fide, this Court “lookfs] behind” that stated reason, See id. at 2140-41. The Court thus turns to a traditional constitutional analysis, in this case by applying the traditional tests for evaluating an Establishment Clause claim. See Zadvydas,
The First Amendment prohibits any “law respecting an establishment of religion,” U.S. Gonst. amend. I, and “mandates governmental neutrality between religion and religion, and between religion and nonreligion,” Epperson v. Arkansas,
As the first prong of the Lemon test makes clear, in Establishment Clause cases, “purpose matters." McCreary Cty. v. Am. Civil Liberties Union of Ky.,
An assessment of the purpose of an action is a “common” task for courts. McCreary,
2. Historical Context
This Court previously applied the Lemon test to EO-2 and found that it likely failed the purpose prong because there was substantial direct evidence that the travel ban was motivated by a desire to ban Muslims as a group from entering the United States. IRAP,
That record revealed that on December 7, 2015, while still a Republican primary candidate, Trump posted a “Statement on Preventing Muslim Immigration” on his campaign website “calling for a total and complete shutdown of Muslims entering the United States until oúr representatives can figure out what is going on.” J.R. 85. Then in a March 22, 2016 Fox Business interview, Trump reiterated his call for a ban on Muslim immigration, explaining that his call for the ban had gotten “tremendous support” and that “we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” J.R. 261. On December 21, 2016, when asked whether a recent attack in Germany affected his proposed Muslim ban, President-Elect Trump replied, “You know my plans. All along, I’ve proven,to be right. 100% correct.” J.R. 245. After becoming the Republican presidential nominee, Trump-clarified his plans , for a Muslim ban.- In a July 24, 2016 interview on Meet the Press, Trump asserted that immigration should be immediately suspended
Within a week of taking office, President Trump issued EO-1. Upon signing it, President Trump remarked, “This is the ‘Protection of the Nation from Foreign Terrorist Entry into the United States.’ We all know what that means.” J.R. 142. The next day, Mayor Giuliani asserted on Fox News that President Trump told him he wanted a Muslim ban and asked Giuliani to “[s]how me the right way to do it legally.” J.R. 247. Giuliani explained that, after consulting with others, he proposed that the action be “focused on, instead of religion ... the areas of the world that create danger for us,” specifically “places where there are [sic] substantial evidence that people are sending terrorists into our country.” J.R. 247-48.
EO-1 mirrored this rhetoric. It suspended for 90 days the immigrant and nonim-migrant entry into the United States of aliens from Iraq, Iran, Libya, Sudan, Somalia, Syria, and Yemen, all countries where the vast majority of the population is Muslim. The stated purpose of this suspension was to “protect the American people from terrorist attacks by foreign nationals admitted to the United States.” EO-1 pmbl. EO-1 cautioned that this threat required the United States to be “vigilant during the visa-issuance process,” a process that “plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States.” EO-1 § 1. However, EO-1 contained no facts tying the seven banned countries to any particular terror threats or to any visa-issuance failures. EO-1 also expressly drew distinctions based on religion, requiring that refugee claims on the basis of religious persecution be prioritized for individuals who were members of a minority religion in their country of nationality.
EO-1 was issued without traditional interagency consultation. Considering this abbreviated process, the similarity between the provisions of EO-1 and the public statements about the form the promised Muslim ban would take, the express references to religion within its text, and the lack of any articulated connection between the scope of the ban and particular national security threats, this Court concluded, in resolving the motion for a preliminary injunction against EO-2, that there was a “convincing case” that the purpose of EO-1 was “to accomplish, as nearly as possible, President Trump’s promised Muslim ban” through a policy of restricting entry of nationals of predominantly Muslim countries deemed to be dangerous territory. IRAP,
That conclusion echoed the determination of the United States District Court for the Eastern District of Virginia, which had enjoined EO-1 on Establishment Clause grounds. Aziz,
EO-2 required that the Secretary of Homeland Security, in consultation with the Secretary of State and the DNI, conduct a “worldwide review to identify whether, and if so what, additional information” would be needed from each foreign country to adjudicate a visa application and determine that the applicant is not a security threat. EO-2 § 2(a). A report on that review was to be submitted 20 days after the effective date of EO-2. Then, the Secretary of State was to begin a 50-day process of requesting that foreign governments bring their practices into compliance with any of the report’s recommendations. After that period, the Secretary of Homeland Security, after consultation with the Secretary' of State and the DNI, was to “submit to the President of list of countries recommended for inclusion in a Presidential proclamation that would prohibit entry of appropriate categories of foreign nationals of countries that have not- provided the information requested.” EO-2 § 2(e). This review and recommendation plan (collectively, the “DHS Review”) was largely unchanged from a comparable review process contained in EO-1.
In public statements, the Trump Administration repeatedly emphasized that EO-2 was, in substance, the same as EO-1. On February 16, 2017, before EO-2 was issued, Stephen Miller, Senior Policy Advis- or to the President, characterized the changes made as “mostly minor technical differences” and asserted that the “basic policies are still going to be in effect.” J.R. 319. When EO-2 was signed on March 6, 2017, White House Press Secretary Sean Spicer emphasized that “[t]he principles of the [second] executive order remain the same” as those of EO-1. J.R. 118. EO-2 itself explicitly stated that changes from EO-1, particularly the addition of exemption and waiver categories, were made to address “judicial concerns.” EO-2 § l(i).
Considering EO-2 in this context, this Court concluded that despite the modifications from EO-1 and the removal of any reference to religion, the history of public statements “continued to provide a convincing case that the purpose of . EO-2 remains the realization of the long-envisioned Muslim ban.” IRAP,
It is against this backdrop that the Court must now assess the likelihood of success of Plaintiffs’ claim that the Proclamation violates the Establishment Clause.. Because “reasonable observers have-reasonable memories,” past Establishment Clause violations are relevant to the assessment of present government actions. McCreary,
However, past actions do not “forever taint” present ones. McCreary,
3. The Proclamation
The Government argues that the Proclamation does not violate the Establishment Clause because unlike EO-2, it is based on a worldwide review by the Acting Secretary of Homeland Security of information-sharing practices and other factors relevant to the visa issuance process. A comparison of the two orders reveals certain changes that support this argument. First, the Proclamation describes the review process conducted in advance of the Proclamation’s, issuance, which included consideration of baseline criteria for assessing
Defendants also emphasize that the Proclamation makes no express, distinctions based on religion. As with EO-2, the fact that, within the four corners of the document, there is no explicit distinction among countries based on religion does not end the inquiry. Establishment Clause violations can arise from facially neutral government action. See Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet,
Likewise, the inclusion of two non-majority Muslim nations, North Korea and Venezuela, does not persuasively show a lack of religious purpose behind the Proclamation. The Venezuela ban is qualitatively" different from the others because it extends only to government "officials, and the bán on North -Korea will, according to Department of State statistics, affect fewer than 100 people, only a fraction of one percent of all those affected by the Proclamation. In short, the inclusion of Venezuela and North Korea in the Proclamation has littie practical consequence. The Court must therefore still assess whether, as has occurred in other Establishment Clause cases, the insertion of these countries was “a litigating position” rather than an earnest effort to “cast off’ the prior “unmistakable” objective. McCreary,
As with EO-2, the Court must consider not whether the Proclamation has stated a .nonreligious purpose for the travel ban, but whether that purpose is, in fact, the primary purpose for the travel ban, rather than a purpose secondary to the religious animus that the Court has found, and continues to find,.to be the primary purpose for the EO-2. McCreary, 545. U.S. at 860, 862-65,
Upon consideration of the text of EO-1, EO-2, and the Proclamation, there are substantial reasons to question whether the asserted national security purpose has now indeed become the primary purpose. First, the underlying architecture of the prior Executive Orders and the Proclamation is fundamentally the same. Each of these executive actions bans the issuance of immigrant and nonimmigrant visas on the basis of nationality to multiple majority-Muslim countries on the basis of concerns about terrorism. The Proclamation does not abandon this fundamental approach, but rather doubles down on it, because rather than imposing a temporary, 90-day travel ban, the Proclamation establishes an indefinite travel ban, which is subject to periodic review, but which would become permanent in the absence of additional action.
Although the Government frames the Proclamation review process as an independent action that has cured any taint from EO-2, a close read of EO-1 and EO-2 reveals that the outcome of the DHS Review was at least partially pre-ordained. It is undisputed that the DHS Review was conducted pursuant to the President’s directive, contained in both EO-1 and EO-2, mandating a review of information-sharing practices, but that directive also telegraphed the expected recommendations. Specifically, EO-2 instructed 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.” EO-2 § 2(e), see EO-1 § 2(e) (omitting the phrase “appropriate categories of’). This language does not permit the Secretary to recommend that no nationality-based travel ban is necessary. The language of EO-2 thus indicates that the President had decided, even before the study had been conducted, that regardless of the results, some nationals would be subject to a travel ban. Where EO-2 contemplated and planned for the very type of travel ban imposed by the Proclamation, the Proclamation cannot be framed as an independent product of bureaucratic operation.
Many of EO-2’s specific findings about banned countries are'also substantially the same as those described in the Proclamation. For example, EO-2 noted as one factor in banning Iran that it “regularly fails to cooperate with the United States Government in identifying security risks,” EO-2 § 2(e)(i), while the Proclamation concluded that “Iran does not cooperate with the United States in counterterrorism-efforts,” Proel. § 2(b) (i). EO-2 justified the ban on Somalia in part because “most countries do not recognize Somali identity documents,” EO-2 § 2(e)(iii), one of the same factors used to justified the Somali ban in the Proclamation, see Proel. § 2(h)(i). In both orders, the ban on Syria is justified in part by the fact that Syria is a state sponsor of terrorism and does not cooperate with the United States in addressing security or terrorism risks: This substantial overlap between EO-2 and the Proclamation in terms of the criteria considered and applied in identifying countries to ban undermines the characterization of the Proclamation’s determinátion to impose a travel ban as the product of an independent evaluation unconnected to the earlier, tainted travel bans, and further suggests that many of the results may have been pre-ordained. Where the President ordered the submission of a list of countries to be banned, and the criteria used to arrive at that list- substantially aligned with those he applied to generate the list of banned countries in the tainted EO-2, it is not surprising that agency officials acting in good faith could and did propose a similar list of countries to be banned in the Proclamation.
Some of the specific determinations made in the Proclamation, by deviating from the general findings of the-DHS Review, also undermine the argument that the Designated Countries were selected by an independent, process completely untethered to the President’s earlier statements advocating for a Muslim ban. For example, although the Proclamation’s travel ban is purportedly designed to combat deficient information-sharing practices, Somalia, which was found to have adequate information-sharing practices, is nevertheless on the list of Designated Countries and is subject to a ban on all immigrants from that nation. Somalia is a majority-Muslim country that was included in the list of Designated Countries in both EO-1 and EO-2. Venezuela, meanwhile, a non-majority
That fact brings into relief a .continued lack in the Proclamation, as in EO-1 and EO-2, of facts establishing that a broad nationality-based travel ban is justified by possible failures in the visa-issuance process and the terrorist and public safety threats that the Proclamation’s ban is meant to thwart. While the President’s findings may meet the low bar of “detrimental interest,” 8 U.S.C.§ 1182(f); see supra part II.A.2, they do not explain why the broad travel ban is necessary in a way that convincingly demonstrates that its primary purpose is now unrelated to religious animus. As discussed above, a nationality-based travel ban against eight nations consisting of over 150 million people is unprecedented. Since the enactment of § 1182(f), only two of the 42 invocations of that authority have sought to bar entry based on nationality, and in those- cases only against a single nation and in response to a specific diplomatic dispute with that nation. See Exec. Order No. 12,172, 44 Fed. Reg. 67947; Exec. Order No. 12,206, 45 Fed. Reg. 24,101; Proclamation No. 5,517, 51 Fed. Reg. 30,470. Such a ban was not even imposed after the September 11, 2001 attacks. Furthermore, while EO-1 and EO-2 sought to justify the travel ban based on prior acts .of terrorism involving nationals of the Designated Countries, Defendants offer no evidence, even in the form of classified information submitted to the- Court, showing an intelligence-based terrorism threat justifying a ban on entire nationalities; rather, the Proclamation relies primarily on the lack of information sharing from- the Designated Countries. Numerous distinguished former national security officials have attested to the unique nature of this travel ban and the lack of a discernible national security rationale- for it, including any rationale that would flow from information-sharing deficiencies. Notably, in the context of the VWP, Congress as recently as 2015 examined this same issue and responded with legislation that falls well short of any kind of nationality-based travel ban. See supra part III.A.3. Thus, the Proclamation fails adequately to explain not the need to respond to information-sharing deficiencies, but the need for the specific response of an unprecedented, sweeping nationality-based travel' ban against majority-Muslim nations.
The Court does not reference the record evidence showing the apparent disconnect between the identified problem, and the broad, nationality-based travel ban to evaluate the merits of the travel, ban as a national security matter. See Holder v. Humanitarian Law Project,
To the extent that the Government might have provided additional evi-. dence to establish that national security is now the primary purpose for the travel bap, it has not done so. It has not offered classified information such as the September 15, 2017 DHS Report which,- even though not “public,” could have been submitted to the Court to explain the shift in purpose. Of course, even if such evidence was forthcoming, its value in obviating the taint of the earlier Executive Orders would be limited., As noted, in. Establishment Clause cases, it is the opinion of the reasonable observer that controls. McCreary,
Beyond' the Proclamation itself, Defendants have offered .only one ■ additional “public” statement- to bolster the case that the Proclamation is now cured of religious animus: a speech by the President delivered in Saudi Arabia in May 2017 in which he made various positive statements about Islam. See Felix,
Rather, the.only other available public statements not only fail to advance, but instead undermine, the position that the primary purpose of the travel ban now derives from the need to address, information-sharing deficiencies. Even while inter-agency consultation regarding the travel ban took place behind closed doors, another conversation continued in the public eye. The day- after. EO-2 was enjoined, President Trump proclaimed at a rally that it had been a “watered down version of the first one” that. had been “tailored]” by lawyers to respond to legal challenges. J.R. 652-53. He suggested instead that “we Ought to go back to the first one and go all the way, which is what I wanted, to do in the first place.” J.R. 653, In a June 3, 2017 tweet, days after the Fourth Circuit’s opinion upholding this Court’s injunction against EO-2, President Trump declared in a tweet that “We need the Travel Ban as an extra level of safety!” J.R. 662. On June 5, 2017,- President Trump tweeted that “[t]he Justice Dept, should have stayed with the original Travel Ban, not the, watered down, politically correct version they submitted to [the Supreme Court],!’ and that “the Justice Dept, should
Thus, while Defendants assert that the Proclamation’s travel ban was arrived at through the routine operations of the government bureaucracy, the public was witness to a different genealogy, one in which the President — speaking “straight to the American people,” J.R. 667 — announced his intention to go back to and get even tougher than in EO-1 and EO-2. Notably, the June 5 tweet calling for a “much tougher version” reveals that even before President Trump had received any reports on the DHS Review that ostensibly identified the need for a travel ban, the first of which he received over a month later on July 9, 2017, the President had already decided that the travel ban would continue. His September 15, 2017 tweet calling for a “far larger, tougher” travel ban, issued the same day that that the final report was received, reinforced this position. Against the backdrop of two prior Executive Orders that this Court and others have deemed likely violated the Establishment Clause, see, e.g., Aziz,
The “initial” announcement of the Muslim ban, offered repeatedly and explicitly through President Trump’s own statements, forcefully and persuasively expressed his purpose in unequivocal terms. Under Felix, the Government’s cure must be made “as persuasively as the initial” violation. Felix,
IV. Irreparable Harm
Having concluded that Plaintiffs have established a likelihood of success on the merits on their § 1152(a)'and Establishment Clause claims, the Court turns to whether they have shown a likelihood of irreparable harm. The Supreme Court has held that “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable' injury.” Elrod v. Burns,
Here, as in Elrod, “First Amendment interests were either threatened or in fact being impaired at the time relief was sought.”
The Court also finds that Plaintiffs with a family member seeking an immigrant visa have established a likelihood of irreparable harm as a result of the Proclamation’s violation of the INA. Irreparable harm occurs when the threatened injury impairs a court’s ability to grant an effective remedy, such as a harm that cannot be compensated by money damages at a later trial. See Hawaii,
In balancing the equities, the Court considers the significant, irreparable harm Plaintiffs would face both from the prolonged separation from family members and the Establishment Clause violation. While Plaintiffs would likely face irreparable harm in the absence of an injunction' and would plainly benefit from an injunction, Defendants are not directly harmed by a preliminary injunction preventing them from enforcing a Proclamation likely to be found unconstitutional. See Newsom ex rel. Newsom v. Albemarle Cty. Sch. Bd.,
At the same time, the Supreme Court has stated that “no governmental interest is more compelling than the security of the Nation.” Haig v. Agee,
However, in partially staying the injunction of EO-2, the Supreme Court noted that the balance of equities varies depending on a foreign-national’s strength of connection to the United States. See Trump,
VI. Public Interest
Preventing an Establishment Clause violation provides a significant public benefit.- The Supreme Court has recognized the “fundamental place held by the Establishment Clause in our constitutional scheme.” Wallace v. Jaffree,
The Court also finds that granting an injunction on the Proclamation’s violation of the INA advances the public interest. Section 1152(a) represents a judgment by Congress that our immigration policy should not discriminate on the basis of
Although the Government’s interest in national security is a significant public interest, for the reasons discussed above, see supra part V, those interests are hot paramount in this instance. Accordingly, the Court finds that the public interest favors an injunction.
VII. Scope of Relief
The Plaintiffs’ Establishment Clause and § 1152(a) arguments focused primarily on the travel ban for citizens of the eight Designated Countries in Section 2 of the Proclamation, The Court will therefore enjoin Section 2 only, subject to the following exceptions.
-As discussed above, because the balance of equities favor Defendants as to visa applicants with no ties to the United States, the injunction is limited to barring enforcement of Section 2 against those individuals “who have a credible claim of a bona fide relationship with a person or entity in the United States.” Trump,
The injunction also will' not apply to travelers from Venezuela or North Korea because the balance of equities favors Defendants with respect to those two countries. Section 1152(a) provides no basis to support an injunction relating to Venezuela because the Proclamation does not bar immigrants from Venezuela. Given the extremely limited number of visas typically issued, to individuals from-North Korea, Plaintiffs.- have neither argued nor shown how any .individuals from , that nation with a- bona fide relationship to a person or entity in the United States will be harmed by the § 1152(a) violation. Likewise, they have not shown how travelers from Venezuela or North Korea would be harmed by
Finally, in light of the constitutional concerns associated with enjoining the President of the United States, this injunction does not apply to the President and instead applies only to the other Defendants and the federal officials who will actually enforce the Proclamation. See Franklin,
The injunction will apply nationwide. It is “well established” that a federal district court has “wide discretion to fashion appropriate injunctive relief in a particular case.” Richmond Tenants Org., Inc. v. Kemp,
The Court has found that Plaintiffs are likely to succeed on their claims that Section 2 of the Proclamation violates the Establishment Clause and § 1152(a). The Individual and Organizational Plaintiffs are located in different parts of the United States, indicating that nationwide relief may be appropriate. Richmond Tenants Org., Inc.,
Nationwide relief is also warranted on the § 1152(a) claim, with respect to applicants for immigrant visas, because under these facts, a “fragmented” approach “would run afoul of the constitutional and statutory requirement for uniform immigration law and policy.” Washington,
For the foregoing reasons, Plaintiffs’ Motions for a Preliminary Injunction are GRANTED IN PART and DENIED IN PART. The Court will issue a preliminary injunction barring enforcement of Section 2 of the Proclamation, subject to the terms stated in the separate Order.
ORDER
For the reasons stated in the accompanying Memorandum Opinion, the Court finds that the Plaintiffs have standing to maintain this civil action and have established that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of injunc-tive relief, and that the balance of the equities and the public interest favor an injunction.
Accordingly, it is hereby ORDERED that:
1. Plaintiffs’ Motions for a Preliminary Injunction, TDC-17-0361 ECF No. 205, TDC-17-2921 ECF No. 26, TDC-17-2969 ECF No.2, are GRANTED IN PART and DENIED IN PART.
2. The Motions are GRANTED as to Section 2 of Presidential Proclamation 9645 (“Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”). All Defendants with the exception of the President of the United States; all officers, agents, and employees of the Executive Branch of the United States government; and anyone acting under their authorization or direction, are ENJOINED from enforcing Section 2 of Presidential Proclamation 9645 except with regard to:
a. Sections 2(d) and 2(f) of the Proclamation;
b. Individuals lacking a credible claim of a bona fide relationship with a person or entity in the United States, as defined in the accompanying Memorandum Opinion.
3. This Preliminary Injunction is granted on a nationwide basis and prohibits the enforcement of Section 2 of Presidential Proclamation 9645 in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas, with the above exceptions, pending further orders from this Court.
4. The Motion is DENIED as to the President of the United States and as to all other provisions of Presidential Proclamation 9645.
5. Plaintiffs are not required to pay a security deposit.
6. The Court declines to stay this ruling or hold it in abeyance should an emergency appeal of this Order be filed.
Notes
. Because the judgment of the Fourth Circuit has been vacated as moot, it has been "strip[ped] of its binding effect.” Deakins v. Monaghan,
. At the time the IRAP Amended Complaint was filed, Plaintiff Mohamad Mashta had an approved 1-130 visa petition for his Syrian-national wife and was awaiting a visa for her. At the hearing, counsel informed the Court that Mashta’s wife had been granted a visa and that she is on her way to the United States, which appears to render his claim moot.
. Section 1185 was amended in 1978, to broaden its applicability beyond times of war or national emergency, but the operative language of § 1185(a)(1) remained unchanged. See Foreign Relations Authorization Act, Fiscal Year 1979, Pub. L. No. 95-426, § 707(a), 92 Stat. 992-993 (1978).