Int'l Refugee Assistance Project v. Trump, Civil Action No. TDC–17–0361

• Citation: 265 F.Supp.3d 570
• Decision Date: 17 October 2017
• Docket Number: Civil Action No. TDC–17–2969, Civil Action No. TDC–17–2921,Civil Action No. TDC–17–0361
• Parties: INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al., Plaintiffs, v. Donald J. TRUMP, in his official capacity as President of the United States, et al., Defendants. Iranian Alliances Across Borders, et al., Plaintiffs, v. Donald J. Trump, in his official capacity as President of the United States, et al., Defendants. Eblal Zakzok, et al., Plaintiffs, v. Donald J. Trump, in his official capacity as President of the United States, et al., Defendants.
• Court: U.S. District Court — District of Maryland

265 F.Supp.3d 570

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al., Plaintiffs,

v.Donald J. TRUMP, in his official capacity as President of the United States, et al., Defendants.

Iranian Alliances Across Borders, et al., Plaintiffs,

v.Donald J. Trump, in his official capacity as President of the United States, et al., Defendants.

Eblal Zakzok, et al., Plaintiffs,

v.Donald J. Trump, in his official capacity as President of the United States, et al., Defendants.

Civil Action No. TDC–17–0361

Civil Action No. TDC–17–2921

Civil Action No. TDC–17–2969

United States District Court, D. Maryland.

Signed October 17, 2017

David Robert Rocah, Deborah A. Jeon, Nicholas Taichi Steiner, Sonia Kumar, ACLU of Maryland, Baltimore, MD, Justin B. Cox, Atlanta, GA, Cecillia D. Wang, Cody Wofsy, American Civil Liberties Union San Francisco, CA, Daniel Mach, David D. Cole, Heather Lynn Weaver, ACLU Foundation, Washington, DC, David Hausman, Hina Shamsi, Hugh Handeyside, Lee Gelernt, Omar C. Jadwat, Sarah L. Mehta, Spencer E. Amdur, American Civil Liberties Union, New York, NY, Esther Sung, Karen C. Tumlin, Melissa S. Keaney, Nicholas Espiritu, Los Angeles, CA, for Plaintiffs.

Arjun Garg, Daniel Stephen Garrett Schwei, Michelle Bennett, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

THEODORE D. CHUANG, United States District Judge

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 13,769, " 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 EO–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" ), 241 F.Supp.3d 539 (D. Md. 2017). This Court's Order was then appealed to and in substantial part affirmed by the United States Court of Appeals for the Fourth Circuit, sitting en banc . Int'l Refugee Assistance Project v. Trump ("IRAP" ), 857 F.3d 554 (4th Cir. 2017). In light of the expiration of EO–2, the Fourth Circuit's judgment has since been vacated as moot by the United States Supreme Court. Trump v. Int'l Refugee Assistance Project , No. 16-1436, ––– U.S. ––––, 138 S.Ct. 353, ––– L.Ed.2d ––––, 2017 WL 4518553 (Oct. 10, 2017).

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 ("AAANY"), Yemeni–American Merchants Association ("YAMA"), 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 Muqbil, 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. Tillerson, 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 filed a consolidated brief in opposition to the Motions on October 12, 2017, and Plaintiffs filed separate reply briefs on October 14, 2017. The Court held a hearing on the Motion on October 16, 2017. With the matter fully briefed and argued, the Court now issues its findings of fact and conclusions of law.

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 "call[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,...