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

• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)
• Writing for the Court: THEODORE D. CHUANG, United States District Judge
• Citation: 373 F.Supp.3d 650
• Parties: INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al., Plaintiffs, v. Donald J. TRUMP, et al., Defendants. Iranian Alliances Across Borders, University of Maryland College Park Chapter, et al., Plaintiffs, v. Donald J. Trump, et al., Defendants. Eblal Zakzok, et al., Plaintiffs, v. Donald J. Trump, et al., Defendants.
• Docket Number: Civil Action No. TDC-17-0361, Civil Action No. TDC-17-2969, Civil Action No. TDC-17-2921
• Decision Date: 02 May 2019

373 F.Supp.3d 650

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al., Plaintiffs,
v.
Donald J. TRUMP, et al., Defendants.

Iranian Alliances Across Borders, University of Maryland College Park Chapter, et al., Plaintiffs,
v.
Donald J. Trump, et al., Defendants.

Eblal Zakzok, et al., Plaintiffs,
v.
Donald J. Trump, 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 May 2, 2019

373 F.Supp.3d 653

Faiza Patel, Pro Hac Vice, Jethro Mark Eisenstein, Profeta & Eisenstein, Liza Velazquez, Pro Hac Vice, Robert A Atkins, Pro Hac Vice, Steven C. Herzog, Andrew J. Ehrlich, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, NY, Lena F. Masri, Pro Hac Vice, Gadeir I. Abbas, Pro Hac Vice, CAIR, Charles E. Davidow, Paul Weiss Rifkind Wharton and Garrison LLP, Washington, DC, for Plaintiffs.

Daniel Stephen Garrett Schwei, United States Department of Justice, Washington, DC, Steven C. Herzog, Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, NY, for Defendants.

MEMORANDUM OPINION

THEODORE D. CHUANG, United States District Judge

In 2017, President Donald J. Trump issued two Executive Orders temporarily

373 F.Supp.3d 654

banning the entry into the United States, with some exceptions, of nationals of multiple predominantly Muslim nations. These orders were followed by a Presidential Proclamation which extended the ban indefinitely as to immigrants and certain categories of nonimmigrants from a substantially similar set of Muslim-majority countries. Plaintiffs in these three consolidated cases, International Refugee Assistance Project ("IRAP"), HIAS, Inc., Middle East Studies Association ("MESA"), Arab-American Association of New York, Yemeni-American Merchants Association ("YAMA"), Doe Plaintiffs 1–5, Muhammed Meteab, Mohamad Mashta, Grannaz Amirjamshidi, Fakhri Ziaolhagh, Shapour Shirani, and Afsaneh Khazaeli (collectively, "the IRAP Plaintiffs"); Iranian Alliances Across Borders ("IAAB"), Doe Plaintiffs 1, 3, 5 and 6, and Iranian Students' Foundation (collectively, "the IAAB Plaintiffs"); and Eblal Zakzok, Fahed Muqbil, and Doe Plaintiffs 1 and 2 (collectively, "the Zakzok Plaintiffs"), challenge the Proclamation on the grounds that it violates several provisions of the United States Constitution and that the agencies implementing it have not complied with the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 – 559, 701 – 706 (2012). After the United States Court of Appeals for the Fourth Circuit affirmed a preliminary injunction entered by this Court to prevent the implementation of the Proclamation on the grounds that it violated the Establishment Clause of the First Amendment, the United States Supreme Court reversed a similar preliminary injunction that had been entered in a parallel case, held that the plaintiffs in that case were unlikely to succeed on the merits of their claims, including under the Establishment Clause, and remanded.

The consolidated cases have now been remanded to this Court following the Supreme Court's decision. Presently before the Court is the Motion to Dismiss all three pending amended complaints ("the Complaints") filed by Defendants (the "Government"). On February 12, 2019, the Court heard oral argument on the Motion. For the reasons set forth below, the Motion will be granted in part and denied in part.

BACKGROUND

Relevant factual and procedural background is set forth in the Court's March 15, 2017 and October 17, 2017 Memorandum Opinions. Int'l Refugee Assistance Project v. Trump , 241 F.Supp.3d 539, 543–48 (D. Md.), aff'd in part and vacated in part , 857 F.3d 554 (4th Cir.), judgment vacated , ––– U.S. ––––, 138 S.Ct. 353, 199 L.Ed.2d 203 (2017) ; Int'l Refugee Assistance Project v. Trump ("IRAP I "), 265 F.Supp.3d 570, 583–93 (D. Md. 2017), aff'd , 883 F.3d 233 (4th Cir. 2018), judgment vacated , ––– U.S. ––––, 138 S.Ct. 2710, 201 L.Ed.2d 1094 (2018). Limited additional facts and procedural history specific to the Motion are provided below.

I. The Proclamation

On September 24, 2017, President Donald J. Trump issued Proclamation No. 9645, " Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats" (the "Proclamation"), 82 Fed. Reg. 45161 (Sept. 27, 2017). The Proclamation was the third iteration of the President's efforts to ban the entry of nationals from certain predominantly Muslim countries into the United States. See Exec. Order 13,769, " Protecting the Nation from Foreign Terrorist Entry into the United States" ("EO-1"), 82 Fed. Reg. 8977 (Jan. 27, 2017) ; Exec. Order 13,780, " Protecting the Nation from Foreign Terrorist Entry into the United States" ("EO-2"), 82 Fed. Reg. 13209 (Mar. 9, 2017).

373 F.Supp.3d 655

Preceding EO-1, EO-2, and the Proclamation, President Trump, as a presidential candidate, president-elect, and President, repeatedly made public statements describing his intention to ban entry of Muslims to the United States and otherwise evincing fear of and prejudice against Muslims. See IRAP I , 265 F.Supp.3d at 585–86, 589–90. For example, on December 7, 2015, then-presidential candidate Trump posted a statement 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." IRAP 2d Am. Compl. ¶ 55, ECF No. 203, No. TDC-17-0361; IAAB 2d Am. Compl. ¶ 28, ECF No. 78, No. TDC-17-2921; Zakzok Am. Compl. ¶ 20, ECF No. 62, No. TDC-17-2969. On March 9, 2016 during a televised interview, he stated: "I think Islam hates us" and "We can't allow people coming into this country who have this hatred of the United States ... and [of] people that are not Muslim." IRAP 2d Am. Compl. ¶ 60; IAAB 2d Am. Compl. ¶ 32; Zakzok Am. Compl. ¶ 20. On July 25, 2016, President Trump clarified that he would accomplish his Muslim ban by barring entry from certain "territories" because "people don't want me to say Muslim." IRAP 2d Am. Compl. ¶ 76; IAAB 2d Am. Compl. ¶ 34-35; Zakzok Am. Compl. ¶ 27. Shortly after President Trump signed EO-1 on January 27, 2017, Rudolph Giuliani, an advisor to President Trump, stated that it was the product of an effort directed by President Trump to put the "Muslim ban" into effect "legally" by using territory as a proxy for religion. IRAP 2d Am. Compl. ¶ 65; IAAB 2d Am. Compl. ¶ 39; Zakzok Am. Compl. ¶ 27.

After EO-1 was rescinded and EO-2 went into effect, President Trump called EO-2 a "watered down" version of EO-1. IRAP 2d Am. Compl. ¶¶ 186, 190; IAAB 2d Am. Compl. 154; Zakzok Am. Compl. ¶ 33. Even after EO-2 was enjoined by courts, President Trump expressed his intent to issue a third travel ban for the same purpose by stating on June 5, 2017 that the Justice Department "should have stayed with the original Travel Ban, not the watered down, politically correct version" and that there should be a "much tougher version." IRAP 2d Am. Compl. ¶ 190. On September 24, 2017, President Trump issued the Proclamation.

The Proclamation states that "absent the measures set forth in this proclamation, the immigrant and nonimmigrant 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." Procl. 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 nonimmigrants is "more tailored," with a narrower ban imposed on countries with mitigating circumstances such as a willingness to play a substantial role in combating terrorism. Id. § 1(h)(iii).

As justification for the ban, the Proclamation references a July 9, 2017 report by the Acting Secretary of Homeland Security, issued pursuant to the requirements of EO-2, describing a "worldwide review" conducted in consultation with the Secretary of State and the Director of National Intelligence. In that review, these officials 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. Id. § 1(c); see IRAP I , 265 F.Supp.3d at 590–91.

373 F.Supp.3d 656

According to the Proclamation, pursuant to the process set forth in EO-2, nearly 200 countries were evaluated based on the 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 the United States's 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...