Louhghalam v. Trump

• Decision Date: 03 February 2017
• Docket Number: Civil Action No. 17–10154–NMG
• Citation: 230 F.Supp.3d 26
• Parties: Arghavan LOUHGHALAM et al., Plaintiffs, v. Donald J. TRUMP, President of the United States, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

230 F.Supp.3d 26

Arghavan LOUHGHALAM et al., Plaintiffs,

v.Donald J. TRUMP, President of the United States, et al., Defendants.

Civil Action No. 17–10154–NMG

United States District Court, D. Massachusetts.

Signed February 3, 2017

Adriana Lafaille, Matthew Segal, Jessie J. Rossman, Sarah R. Wunsch, American Civil Liberties Union, Elizabeth B. Burnett, Michael S. Gardener, Susan M. Finegan, Andrew Nathanson, Peter A. Biagetti, Susan J. Cohen, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC, Kerry E. Doyle, Graves & Doyle, Boston, MA, Derege B. Demissie, Susan B. Church, Heather Yountz, Demissie & Church, Cambridge, MA, for Plaintiffs.

Katherine J. Shinners, Joshua S. Press, U.S. Department of Justice, Civil Division, Office of Immigration Litigation—District Court Section, Washington, DC, Rayford A. Farquhar, Michael P. Sady, United States Attorney's Office, Boston, MA, for Defendants.

MEMORANDUM & ORDER

GORTON, United States District Judge

This Court was initially asked 1) to issue a writ of habeas corpus on behalf of by Arghavan Louhghalam and Mazdak Pourabdollah Tootkaboni, lawful permanent residents who were detained at Boston Logan International Airport ("Logan") for several hours upon arrival from an academic conference outside the United States and 2) to declare unlawful Executive Order 13,769, promulgated by the President of the United States.

Late in the evening on January 28, 2017, United States District Judge Allison D. Burroughs and United States Magistrate Judge Judith G. Dein held a hearing on a motion of Louhghalam and Tootkaboni for a temporary restraining order. Following that hearing, Judge Burroughs and Magistrate Judge Dein entered a temporary restraining order ("TRO") that, inter alia , prohibits the detention and/or removal of individuals with approved refugee applications who would be legally admitted to the United States in absence of the Executive Order. That TRO is set to expire on Sunday, February 5, 2017.

Following entry of the TRO a flurry of activity has resulted in the filing of an amended complaint wherein five other Iranian nationals and Oxfam America, Inc. are named as additional plaintiffs and the allowance of a motion by the Commonwealth of Massachusetts and the University of Massachusetts to intervene as plaintiffs. Now pending before this session is the informal motion of all of the plaintiffs to continue in force the subject TRO which defendant opposes. Oral argument on that motion was heard earlier today.

I. Background

A. The Parties

Habeas petitioners Tootkaboni and Louhghalam are Iranian nationals, Muslim and lawful permanent residents of the United States. Both are currently employed as Associate Professors at the University of Massachusetts–Dartmouth. They were each detained for nearly four hours at Logan Airport on January 28, 2017, without access to counsel, after returning from an academic conference outside the country.

The five other individual plaintiffs are Iranian nationals and Muslim. Three of them, Babak Yaghoubi Moghadam, his sister, Fatemeh Yaghoubi Moghadam, and Ali Sanie are also lawful permanent residents. Plaintiffs Zahrasadat Mirrazi Renani and Leily Amirsardary are in the United States on valid F–1 student visas. Plaintiff Oxfam America Inc. is a subsidiary of a worldwide non-profit organization that promotes policy reform in the United States and abroad with respect to global poverty.

Defendants in this case are President of the United States, Donald J. Trump, United States Customs and Border Protection ("CBP"), Kevin K. McAleen, the Acting Commissioner of the CBP, William Mohalley, the Boston Field Director of the CPB, and the Department of Homeland Security and its Secretary, John Kelly. Each individual defendant is sued in his official capacity.

B. The Executive Order

On January 27, 2017, the President of the United States Donald J. Trump, issued Executive Order No. 13,769 entitled "Protecting the Nation from Foreign Terrorist Entry into the United States" ("EO"). The EO directs changes to the policy and process of admitting non-citizens into the United States purportedly to protect national security and to provide a period of review for relevant agencies to evaluate current procedures and to propose and implement new procedures.

The changes in immigration procedure relevant to this action are as follows. The EO suspends for 90 days entry of immigrants and non-immigrants from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. Exec. Order 13,769 § 3(c). The EO also suspends, for 120 days, the United States Refugee Admission Program ("USRAP"). Id. § 5(b). The order directs, after the suspension on USRAP ends, that the Secretary of State prioritize applicants 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.

Id.

On February 1, 2017, White House counsel issued a clarification to the Acting Secretary of State, the Attorney General and the Secretary of Homeland Security that Sections 3(c) and 3(e) do not apply to lawful permanent residents.

C. The Immigration and Nationality Act

The Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. , was originally enacted in 1952 and has been amended several times, including in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). The INA governs immigration, naturalization, refugee assistance and removal procedures and defines the circumstances that govern the admission of aliens into the United States.

The relevant provision of the INA provides that:

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).

D. Procedural History

As described above, petitioners Tootkaboni and Louhghalam filed a writ of habeas corpus on January 28, 2017. In the middle of a weekend night, following a hearing, Judge Burroughs and Magistrate Judge Dein, the assigned emergency district and magistrate judges, respectively, entered a TRO preventing individuals subject to the EO from being detained or removed upon arrival at Logan. The TRO also directed petitioners to file an amended complaint and scheduled a hearing to occur prior to the expiration of that order. The matter was randomly assigned to this judicial officer who, accordingly, scheduled a hearing with respect to the continuance of the TRO.

II. Continuance of the TRO

A. Legal Standard

In order to obtain a preliminary injunction or temporary restraining order, the moving party must establish 1) a reasonable likelihood of success on the merits, 2) the potential for irreparable harm if the injunction is withheld, 3) a favorable balance of hardships and 4) the effect on the public interest. Jean v. Mass. State Police , 492 F.3d 24, 26–27 (1st Cir. 2007) ; Quincy Cablesys., Inc. v. Sully's Bar, Inc. , 640 F.Supp. 1159, 1160 (D. Mass. 1986). Of these factors, the likelihood of success on the merits "normally weighs heaviest on the decisional scales." Coquico, Inc. v. Rodriguez–Miranda , 562 F.3d 62, 66 (1st Cir. 2009).

The Court may accept as true "well-pleaded allegations [in the complaint] and uncontroverted affidavits." Rohm & Haas Elec. Materials, LLC v. Elec. Circuits , 759 F.Supp.2d 110, 114, n.2 (D. Mass. 2010) (quoting Elrod v. Burns , 427 U.S. 347, 350, n.1, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) ). The Court may also rely on otherwise inadmissible evidence, including hearsay. See Asseo v. Pan Am. Grain Co., Inc. , 805 F.2d 23, 26 (1st Cir. 1986). Ultimately, the issuance of preliminary injunctive relief is "an extraordinary and drastic remedy that is never awarded as of right." Peoples Fed. Sav. Bank v. People's United Bank , 672 F.3d 1, 8–9 (1st Cir. 2012) (quoting Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc. , 645 F.3d 26, 32 (1st Cir. 2011) ).

The Court may extend temporary injunctive relief upon a showing of good cause. Fed. R. Civ. P. 65(b)(2).

B. Application

1. The claims for injunctive relief by the lawful permanent residents

On February 1, 2017, the White House distributed a memorandum to the Acting Secretary of State, the Acting Attorney General and the Secretary of Homeland Security clarifying that Sections 3(c) and 3(e) of the EO do not apply to lawful permanent residents.

That memorandum comports with the language of the Section 3(c) which temporarily suspends "entry" of aliens from the seven subject countries. Upon returning to the United States, lawful permanent residents do not, however, typically "enter" the country for purposes of the INA.

Although "entry" is no longer defined in the INA, it has been replaced with the term "admission," which is defined as

the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.

8 U.S.C. § 1101(a)(13)(A) (emphasis added); see also Vartelas v. Holder , 566 U.S. 257, 263, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012) (explaining that Congress made "admission" the "key word" and removed the definition of "entry" from the statute).

Under the INA, lawful permanent residents are regarded as seeking admission, i.e. entry, into the United States only if they fall within six categories, including inter alia , being absent from the United States for 180 days or more. See id. ; 8 U.S.C. § 1101(a)(13)(c).

Therefore, the use of the term "entry" in Section 3(c) indicates that the suspension was not intended to be applied to lawful permanent residents.

In light of the government's clarification that the EO will not be applied to lawful permanent residents, the claims for injunctive relief by plaintiffs Louhghalam, Tootkaboni, Sanie, Fatemeh Moghadam and Babak Moghadam are moot. With...