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Doe v. Trump

United States District Court, W.D. Washington, Seattle

December 23, 2017

JOHN DOE, et al., Plaintiffs,
v.
DONALD TRUMP, et al., Defendants. JEWISH FAMILY SERVICES, et al., Plaintiffs,
v.
DONALD TRUMP, et al., Defendants.

          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ISSUING A PRELIMINARY INJUNCTION

          JAMES L. ROBART United States District Judge

         I. INTRODUCTION

         The work of this court, and more broadly of the federal Judiciary, is to resolve disputes between parties; that is what the court endeavors to do today in ruling on the two motions before it. Plaintiffs in both cases are refugees, who find themselves in dire circumstances, their family members who yearn to be reunited with them, and humanitarian organizations whose fundamental mission is to help these vulnerable refugees resettle in the United States. Plaintiffs in both cases present compelling circumstances of irreparable harm inflicted by the federal agencies' action at issue here. Nevertheless, the fundamental question the court must resolve is did the federal agencies act within their legal authority? If so, the court does not intervene, but leaves the decision to the other two branches of government-Congress and the Executive. Today, however, the court intervenes and preliminarily enjoins the federal agencies' action. It does so because, at this early stage in the proceedings, Plaintiffs show that they are likely to succeed on their claims that the agencies exceeded their statutory authority and also that they meet the other qualifying factors necessary for preliminary injunctive relief.

         One further note: This is an area of rapidly developing law with related cases presently on appeal and decisions anticipated shortly.[1] Plaintiffs, however, seek a decision now and are entitled to one given the facts in this case. In deciding these motions, the court must rely on the precedent currently available to it. The court understands that appellate courts may issue additional guidance in the days to come. If the parties believe that the court should revisit any portion of today's decision on the basis of subsequent authority, they should raise this to the court's attention through appropriate motions. The court now turns to the motions at hand.

         Before the court are two motions seeking to preliminarily enjoin certain aspects of Executive Order No. 13, 815 (“EO-4”), § 3(a), 82 Fed. Reg. 50, 055 (Oct. 27, 2017), and its accompanying memorandum to Defendant Donald Trump, President of the United States, from Defendants Rex Tillerson, Secretary of the Department of State (“DOS”), Elaine Duke, Acting Secretary of the Department of Homeland Security (“DHS”), and Daniel Coats, Director of National Intelligence (“DNI”) (Lin Decl. (Dkt. # 46) ¶ 3, Ex. B (attaching a copy of the memorandum) (hereinafter, “Agency Memo”)). Plaintiffs John Doe, Jack Doe, Jason Doe, Joseph Doe, James Doe, Jeffrey Doe, the Episcopal Diocese of Olympia, and the Council on American Islamic Relations-Washington (collectively, “Doe Plaintiffs”) filed the first motion for a preliminary injunction in Doe, et al. v. Trump, et al., No. C17-0178JLR (W.D. Wash.) (“the Doe Case”). (See Doe PI Mot. (Dkt. # 45).) Shortly after Doe Plaintiffs filed their motion, Plaintiffs Jewish Family Service of Seattle (“JFS-S”), Jewish Family Services of Silicon Valley (“JFS-SV”), Allen Vaught, Afkab Mohamed Hussein, John Does 1-3 and 7, and Jane Does 4-6 (collectively, “JFS Plaintiffs”) filed a separate action in JFS-S, et al. v. Trump, et al., No. C17-1707JLR (W.D. Wash.) (“the JFS Case”) and a second motion for a preliminary injunction. (See JFS Compl. (17-1707 Dkt. # 1); JFS PI Mot. (17-1707 Dkt. # 42).)[2]Recognizing that both cases and motions for preliminary injunction concerned EO-4 and the Agency Memo, the court consolidated the cases. (See OSC re: Consol. (Dkt. # 52); Stip. Re: Consol. (Dkt. # 60); Consol. Order (Dkt. # 61).) Following consolidation, Doe Plaintiffs joined JFS Plaintiffs' motion, and JFS Plaintiffs joined Doe Plaintiffs' motion. (Doe Joinder (Dkt. #62); JFS Joinder (17-1707 Dkt. # 70).)

         In addition to the parties' briefing (see Doe PI Mot.; JFS PI Mot.; Doe Resp. (Dkt. # 51); JFS Resp. (Dkt. # 77); Doe Reply (Dkt. # 54); JFS Reply (Dkt. # 79); Doe Joinder; JFS Joinder; Doe Supp. Br. (Dkt. # 76); JFS Supp. Br. (Dkt. # 73); Def. Supp. Br. (Dkt. # 78)), the court has considered the relevant portions of the record, and the applicable law. Further, the court heard oral argument on December 21, 2017. Being fully advised, the court (1) GRANTS Doe Plaintiffs' motion for a preliminary injunction, and (2) GRANTS JFS Plaintiffs' motion for a preliminary injunction except for those refugees who lack a bona fide relationship with a person or entity in the United States.[3] See Trump v. Int'l Refugee Assistance Project, __ U.S. __, 137 S.Ct. 2080, 2089 (2017) (“IRAP”).

         II. BACKGROUND

         A. The President's Executive Orders on Immigration and Refugees

         1. EO-1

         One week after his inauguration, President Trump issued Executive Order No. 13, 769, 82 Fed. Reg. 8, 977 (Feb. 1, 2017) (“EO-1”). In addition to suspending the entry of aliens from seven majority-Muslim countries for 90 days, EO-1 suspended the United States Refugee Admission Program (“USRAP”) for 120 days and banned the entry of Syrian refugees indefinitely. Id. §§ 3(c), 5(a), 5(c). During the 120-day suspension of USRAP, EO-1 directed the Secretaries of DOS and DHS and the DNI to conduct a security review of USRAP. Id. § 5(a). In this period, refugees could be admitted on a case-by-case basis only if their admission was “in the national interest, ” which was defined to include when a person is “a religious minority in his country of nationality facing religious persecution.” Id. § 5(e). EO-1 further directed that when USRAP resumed, DOS was 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.” Id. § 5(b).

         On February 3, 2017, this court issued a nationwide temporary restraining order (“TRO”) enjoining EO-1, including the suspension of USRAP. Washington v. Trump, No. C17-0141JLR, 2017 WL 462040, at *1 (W.D. Wash. Feb. 3, 2017), stay pending appeal denied, 847 F.3d 1151 (9th Cir. 2017), appeal dismissed, No. 17-35105, 2017 WL 3774041 (9th Cir. Mar. 8, 2017). On appeal, the Ninth Circuit interpreted the court's TRO to be a preliminary injunction and declined the Government's request to stay this court's order. Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), appeal dismissed, No. 17-35105, 2017 WL 3774041 (9th Cir. Mar. 8, 2017).

         2. EO-2

         After the Ninth Circuit's ruling, President Trump abandoned his efforts to defend EO-1, and issued Executive Order No. 13, 780, 82 Fed. Reg. 13, 209 (Mar. 9, 2017) (“EO-2”). EO-2 expressly revoked EO-1. EO-2 § 13. EO-2 was similar to EO-1 except that it omitted the explicit preference for religious minorities and the indefinite suspension of Syrian refugees. EO-2 directed another review of USRAP and restarted the 120-day suspension of USRAP during the new review period, subject to case-by-case waivers. Id. §§ 6(a), (c). EO-2 stated that the suspension of USRAP was necessary to allow the agencies to “determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States.” Id. § 6(a). EO-2 also stated that at the conclusion of the review period, USRAP adjudications would resume for stateless persons and nationals of countries for which the agencies “determined that the additional procedures implemented . . . [we]re adequate to ensure the security and welfare of the United States.” Id.

         Before EO-2 could take effect, a federal district court in Hawaii issued a TRO, holding that EO-2 violated the Establishment Clause. See, e.g., Hawaii v. Trump, 245 F.Supp.3d 1227, 1230 (D. Haw. 2017), hearing en banc denied sub nom. Hawaii v. Trump, 864 F.3d 994 (9th Cir. 2017), aff'd in part, vacated in part, remanded sub nom. Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017), cert. granted sub nom. Trump v. Int'l Refugee Assistance Project, __ U.S. __, 137 S.Ct. 2080 (2017), and cert. granted, judgment vacated, No. 16-1540, 2017 WL 4782860 (U.S. Oct. 24, 2017), and vacated, 874 F.3d 1112 (9th Cir. 2017), and appeal dismissed as moot sub nom. Hawaii v. Trump, 874 F.3d 1112 (9th Cir. 2017). The Ninth Circuit upheld the district court's decision on the ground that President Trump failed to invoke the proper authority to suspend refugee admissions. Hawaii v. Trump, 859 F.3d 741, 776 (9th Cir. 2017), cert. granted sub nom. Trump v. Int'l Refugee Assistance Project, 137 S.Ct. 2080 (2017), and cert. granted, judgment vacated, No. 16-1540, 2017 WL 4782860 (U.S. Oct. 24, 2017), and vacated, 874 F.3d 1112 (9th Cir. 2017) (“Hawaii I”). In addition, a federal district court in Maryland and the Fourth Circuit Court of Appeals both concluded that EO-2 likely violated the Establishment Clause. Int'l Refugee Assistance Project v. Trump, 241 F.Supp.3d 539, 544 (D. Md. 2017), aff'd in part, vacated in part, 857 F.3d 554 (4th Cir. 2017) (en banc), as amended (May 31, 2017), as amended (June 15, 2017), cert. granted, __ U.S. __, 137 S.Ct. 2080 (2017), and vacated and remanded sub nom. Trump v. Int'l Refugee Assistance Project, __ U.S. __, 138 S.Ct. 353 (2017). Pending appeals from both the Ninth and Fourth Circuit Courts of Appeal, the Supreme Court stayed the preliminary injunctions issued by the Maryland and Hawaii district courts-except for foreign nationals and refugees who had a “credible claim of a bona fide relationship with a person or entity in the United States.” IRAP, 137 S.Ct. at 2088-89.

         3. EO-3

         While review of EO-2 was pending before the Supreme Court, President Trump replaced those portions of EO-2 that relate to immigrants (and not refugees), with a Presidential Proclamation. See Proclamation No. 9, 645, 82 Fed. Reg. 45, 161 (Sept. 27, 2017) (“EO-3”). EO-2's refugee ban was still in effect at the time President Trump issued EO-3. Federal district judges in Hawaii and Maryland issued preliminarily injunctions blocking implementation of portions of EO-3. See Int'l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *1 (D. Md. Oct. 17, 2017), appeal docketed, No. 17-2231 (4th Cir. Oct. 20, 2017), and appeal docketed, No. 17-2240 (4th Cir. Oct. 23, 2017); Hawaii v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 4639560, at *1 (D. Haw. Oct. 17, 2017), appeal docketed, No. 17168 (9th Cir. Oct. 24, 2017). The Ninth Circuit affirmed the Hawaii district court's ruling in large part, but narrowed the scope of the injunction to give relief only to those with a credible bona fide relationship with the United States, pursuant to the Supreme Court's decision in IRAP, 137 S.Ct. at 2088. See Hawaii III, 2017 WL 6547095 at * 26. The ruling from the Maryland federal district court remains on appeal. The Supreme Court has stayed both preliminary injunctions pending further appeals. See Trump v. Int'l Refugee Assistance Project, No. 17A560, 2017 WL 5987435, at *1 (U.S. Dec. 4, 2017); Trump v. Hawaii, No. 17A550, 2017 WL 5987406, at *1 (U.S. Dec. 4, 2017).

         4. EO-4 and the Agency Memo

         On October 24, 2017, the same day that EO-2's 120-day refugee ban expired, President Trump issued Executive Order 13, 815, 82 Fed. Reg. 50, 055 (Oct. 27, 2017) (“EO-4”). EO-4 stated that continued suspension of refugee admission was not necessary, EO-4 § 3(a), and that the Administration had improved USRAP vetting processes so that they were “generally adequate to ensure the security and welfare of the United States, ” id. § 2(a). Nevertheless, EO-4 directed a continuing risk assessment as to “[c]ertain [c]ategories of [r]efugees.” Id. §§ 3(a)(i)-(ii). The Secretaries of DOS and DHS and the DNI outlined the risk assessment and the EO-4 categories of refugees in the Agency Memo, which was dated October 23, 2017, but released on October 24, 2017.[4] (See Lin Decl. ¶ 3, Ex. B (attaching Agency Memo); see also Burman Decl. ¶ 3, Ex. B (attaching Agency Memo).)

         Plaintiffs seek to preliminarily enjoin certain provisions of the Agency Memo that (1) indefinitely suspend “following-to-join” (“FTJ”) derivative refugees from entering the United States, and (2) suspend for at least 90-days the entry of refugees who are “nationals of, and stateless persons who last habitually resided in, 11 particular countries previously identified as posing a higher risk to the United States through their designation on the Security Advisory Opinion (“SAO”) list.” (Agency Memo at 2-3; see generally Doe PI Mot.; JFS PI Mot.)

         a. The FTJ Provisions

         The Agency Memo indefinitely suspends the FTJ process for refugees.[5] (Agency Memo at 2-3.) Approximately 2, 500 refugees in the United States are able to reunite with their immediate family members annually through the FTJ process. (Id. at 2 n.1.)

         The Agency Memo states that most FTJ refugee applicants do not currently undergo the same security procedures as the principal refugee who has already resettled in the United States. (Id. at 2-3.) The Secretaries of DOS and DHS and the DNI determined that FTJ refugees should not be admitted to the United States until additional screening procedures are in place. (Id. at 3.) Although the Agency Memo does not exempt Kenya and Thailand from its application, Defendants state that FTJ refugees processed at resettlement centers in those two countries are not affected by the Agency Memo because “adequate review mechanisms are already in place in those countries.” (JFS Resp. at 5, n.3; see also Doe Resp. at 5; Higgins Decl. (Dkt. # 51-1) ¶ 11).) At oral argument, Defendants clarified that during the Agency Memo's indefinite FTJ suspension, the Government was not just barring entry of FTJ refugees, but had completely stopped processing FTJ refugee applications-except for FTJ refugees who are processed in Thailand or Kenya.

         b. The SAO Provisions

          The Agency Memo also suspends for at least 90 days refugee admission of nationals of 11 countries on the SAO list, as well as stateless persons who last resided in those countries. (See Agency Memo at 2.) The Agency Memo does not identify the countries, but Plaintiffs assert that the countries are Egypt, Iran, Iraq, Libya, Mali, Somalia, Sudan, Syria, and Yemen, as well as North Korea and South Sudan.[6] (See JFS PI Mot. at 7; see also Smith Decl. (17-1707 Dkt. # 44) ¶ 5.) Countries on the SAO list “have been assessed by the U.S. government to pose elevated potential risks to national security.” (Agency Memo Addendum at 1.) The SAO list for refugees was established after September 11, 2001, and has changed over the years. (Id.) The most recent list was updated in 2015. (Id.) USRAP already requires additional screening and procedures for refugees from countries on the SAO list. (Id.) USRAP subjects these refugees to additional vetting through SAOs, which are “DOS-initiated biographic check[s] conducted by the Federal Bureau of Investigation and intelligence community partners.” (Id. at 1 n.1.)

         The Agency Memo requires the agencies to “conduct a review and analysis” of USRAP for refugees from SAO countries for an additional 90 days-notwithstanding the agencies' review of USRAP pursuant to EO-1 and EO-2. (See Agency Memo at 2.) Like President Trump's prior EOs, the Agency Memo suspends refugee admission from SAO countries unless resettlement “would fulfill critical foreign policy interests, without compromising national security and the welfare of the United States, ” a determination made on a “case-by-case basis” (Id.) In addition, the Agency Memo diverts resources dedicated to processing refugees who are citizens of (or stateless persons who last resided in) SAO countries and reallocates those resources to processing refugee applicants from non-SAO countries. (Id.) During oral argument, Defendants acknowledged that this would impact the pace of processing for SAO refugees. Thus, even if the SAO suspension is lifted after 90-days, it will have a long-term effect. “Refugees have only a narrow window of time to complete their travel, as certain security and medical checks expire and must then be re-initiated.” Hawaii v. Trump, 871 F.3d 646, 664 (9th Cir. 2017) (“Hawaii II”). “Even short delays may prolong a refugee's admittance.” Id.

         B. Facts Pertaining to Specific Plaintiffs

          1. Joseph Doe

          Joseph Doe is a plaintiff in the Doe Case. (See Doe TAC (Dkt. # 42) ¶¶ 54-71.) He is from Somalia, was first admitted to the United States in 2014 as a refugee, and became a lawful permanent resident in 2016. (Joseph Decl. (Dkt. # 47) ¶¶ 2, 9, 11.) Joseph fled Somalia with his family as a young child; he and his family eventually ended up in a refugee camp in Kenya, where Joseph grew up, married, and began his own family. (Id. ¶¶ 3-8.) Joseph's wife and children were unable to come to the United States with Joseph, remaining in Kenya. (Id. ¶¶ 8-9.) Joseph filed an I-730 petition to bring his wife and children to the United States as FTJ refugees. (Id. ¶ 10.) Joseph's wife and children have completed their final interviews, security and medical clearances, received a formal assurance from a refugee resettlement agency, and are on the brink of travel. (Id. ¶ 12; Joseph Supp. Decl. (Dkt. # 56) ¶¶ 3-5.) Yet, Joseph's family has not received permission from DHS to travel. (Joseph Supp. Decl. ¶ 7.) Joseph's two youngest children were born in Kenya and have never been to Somalia. (Id. ¶ 9.) Nevertheless, they are considered to be Somali citizens due to Joseph's nationality. (Id.) Somalia is an SAO country. (Smith Decl. ¶ 5.) Thus, the United States embassy in Somalia informed Joseph that although his wife and oldest step-son, who are both Kenyan citizens, could obtain permission to travel to the United States, his 4-year-old and 5-year-old sons cannot because they are considered Somali citizens. (See Joseph Supp. Decl. ¶ 10.)

         2. John Doe 7

          John Doe 7 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 20.) JFS Plaintiffs base their joinder in the Doe motion for preliminary injunction on facts pertaining to Doe 7. (JFS Joinder at 1-2.) Doe 7 is an Iraqi national, who was admitted as a refugee to the United States in 2014, along with his wife and two children. (Doe 7 Decl. (17-1707 Dkt. # 58) ¶ 2.) He filed an I-720 petition for his 19-year-old son from his first marriage to join him as an FTJ refugee, which the Government approved. (Id. ¶¶ 3-4.) His son has completed his interview and fingerprinting and received a formal assurance from JFS-S in November 2016. (Id. ¶ 4.) Since that time, Doe 7's son has been waiting to travel to the United States. (Id.)

         3. Afkab Mohamed Hussein

         Afkab Mohamed Hussein is a plaintiff in the JFS Case. (See JFS Compl. ¶ 12.) He is a Somali national, who was admitted to the United States as a refugee in September 2015. (Hussein Decl. (17-1707 Dkt. # 48) ¶ 1.) His wife, who was pregnant with their son at the time, did not travel with Mr. Hussein to the United States. (See Id. ¶ 6.) Mr. Hussein filed I-720 petitions for his wife and son to join him in the United States as FTJ refugees, which the Government approved in June 2016. (Id. ¶¶ 10, 16.) His wife and son were both born in Kenya but are considered Somali citizens. (See Id. ¶¶ 11-12.)

         4. John Doe 1

          John Doe 1 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 13.) Doe 1 is an Iraqi former interpreter for the United States military. (Doe 1 Decl. (17-1707 Dkt. # 52) ¶¶ 1, 3.)[7] Doe 1 and his family were in extreme danger in Iraq due to his work for the United States military. (See Id. ¶¶ 3-8.) As a result, in 2014, he fled Iraq for Cairo, Egypt without his family. (Id. ¶¶ 8-9.) In September 2014, he applied for refugee status in the United States. (Id. ¶ 12.) He is currently “in the end stage of processing for refugee admissions.” (Id. ¶ 15.) He was conditionally approved for resettlement in the United States in December 2015, and has received an assurance of sponsorship from a resettlement agency. (Id.) In early October 2017, the International Organization for Migration (“IOM”) told Doe 1 to “get ready to travel to the United States.” (Id. ¶ 16.) While he was updating his passport to travel, EO-4 and the Agency Memo went into effect, preventing him from traveling. (See id.)

         5. John Does 2 and 3

          John Doe 2 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 15.) John Doe 2 is an Iraqi former interpreter for the United States Army. (Doe 2 Decl. (17-1707 Dkt. # 53) ¶¶ 1, 3.) In 2010, he came to the United States to complete his PhD. (Id. ¶ 5.) Upon graduation, he travelled back to Mosul, Iraq without his wife and children who remained in the United States. (Id.) While he was in Mosul, ISIS seized control of the city, and he has been unable to rejoin his family in the United States ever since. (Id. ¶ 6.) In 2015, he applied for admission to the United States as a refugee. (Id. ¶¶ 7-8.) He is currently “in the end stage of processing for refugee admissions.” (Id. ¶ 9; see also Id. ¶ 12.) He was “awaiting security checks and travel booking” when he was informed of the restrictions on refugees that apply to Iraqi nationals in EO-1, EO-2, and EO-4. (Id.) He has been stranded in Iraq and separated from his family for three years. (Id. ¶ 11.) One of his children is now married to a lawful permanent resident, and he has two granddaughters who are United States citizens. (Id. ¶ 5.)

         John Doe 3 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 16.) He is a lawful permanent resident of the United States and the son-in-law of Doe 2. (Doe 3 Decl. (17-1707 Dkt. # 54) ¶ 1.) He is worried about Doe 2's safety. Doe 2's family in the United States, which consists of his wife, five children, two sons-in-law, and two granddaughters, miss him dearly, rely on him, and want to be reunited with him. (Id. ¶¶ 2, 4-5.)

         6. Jane Doe 4

         Jane Doe 4 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 17.) Doe 4 is an Egyptian, who has applied for refugee status in the United States. (Doe 4 Decl. (17-1707 Dkt. # 55) ¶¶ 1-2.) She is a transgender woman who faces extreme harassment and persecution in Egypt because of her gender identity. (Id. ¶ 3; see also Id. ¶ 6.) Until the recent restrictions on refugee admissions to the United States, USRAP was processing her refugee application on an expedited basis. (Id. ¶ 5.)

         7. Jane Does 5 and 6

          Jane Doe 5 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 18.) She is an Iraqi national and waiting to travel to the United States as a refugee. (Doe 5 Decl. (17-1707 Dkt. # 56) ¶¶ 2-3.) She hopes to live with her sister who resides in Castle Creek, Utah. (Id. ¶ 2.) Her mother, father, another sister, and a brother also live in the United States. (Id. ¶ 8.) In Iraq, Doe 5 works as an interpreter and administrator for American companies. (Id. ¶ 3.) As a result of her work, she faces danger, threats, and harassment in Iraq. (Id. ¶¶ 3-5) In November 2015, Doe 5 was kidnapped by Iraqi militants who raped her multiple times and held her for about a month. (Id. ¶ 4.) When they released her, they told her they would kill her if she continued to work with the Americans. (Id.) She applied for refugee status in 2012. (Id. ¶ 7.) She has completed multiple stages of the refugee admissions process and has been awaiting security checks and travel booking since 2016. (Id.)

         Jane Doe 6 is a plaintiff in the JFS Case. (See JFS Compl. ¶ 19.) She is a United States citizen and the sister of Doe 5. (Doe 6 Decl. (17-1707 Dkt. # 57) ¶ 1.) She fears for her sister's safety in Iraq and misses her deeply. (See Id. ¶¶ 2, 4-6.)

         All of the individual Plaintiffs have been injured by prolonged separation from their family members. (See, e.g., Hussein Decl. ¶¶ 6, 18; Doe 2 Decl. ¶¶ 5, 10; Doe 3 Decl. ¶ 4; Doe 5 Decl. ¶ 8; Doe 6 Decl. ¶¶ 6-7; Doe 7 Decl. ¶¶ 5-7.) Those individual Plaintiffs stranded abroad in perilous circumstances are injured by their inability to travel to safety in the United States. (See, e.g., Doe 1 Decl. ¶¶ 3-11; Doe 2 Decl. ¶¶ 5-10; Doe 4 Decl. ¶ 7; Doe 5 Decl. ¶ 9.)

         8. The Organizational Plaintiffs

         JFS Plaintiffs argue in conjunction with their motion for preliminary injunction that EO-4 and the Agency Memo also harm the organizational Plaintiffs-JFS-S and JFS-SV.[8] (JFS PI Mot. at 12-13.) These agencies provide services to and help resettle refugees in response to the moral, religious, and cultural commands of their religion. (JFS-S Decl. (17-1707 Dkt. # 50) ¶¶ 2-8, 15-16; JFS-SV Decl. (17-1707 Dkt. # 51) ¶¶ 11-18.) Due to the anticipated reduction in refugees from Muslim countries as a result of EO-4 and the Agency Memo, these organizations anticipate that they will need to lay-off employees, reduce services, divert resources to address fears raised by EO-4 and the Agency Memo, cancel established programs, and lose relationships and goodwill with volunteers and community partners who these organizations have cultivated relationships with over the years. (See JFS-S Decl. ¶¶ 30-34; JFS-SV Decl. ¶¶ 27-35.) Further, the agencies state that because they hire staff and volunteers and design programs to be culturally and linguistically relevant to the communities they serve, they cannot simply divert the lost resources to refugees who hail from other parts of the world and who are unaffected by EO-4 and the Agency Memo. (JFS-SV Supp. Decl. (Dkt. # 82) ¶¶ 2-4; JFS-S Supp. Decl. (Dkt. # 81) ¶¶ 3-6.) Indeed, the agencies will be forced to replace staff, build new community relationships, and redesign programs. (JFS-SV Supp. Decl. ¶ 4; JFS-S Supp. Decl. ¶¶ 6-7.) //

         III. ANALYSIS

         Doe Plaintiffs assert that they are entitled to a preliminary injunction because they are likely to succeed on four claims: (1) the Agency Memo's indefinite ban on FTJ refugees is contrary to the INA (Doe PI Mot. at 9-12); (2) the Agency Memo's indefinite ban on FTJ refugees deprives Plaintiffs of due process under the Fifth Amendment (id. at 12-14); (3) the Agency Memo violates the Administrative Procedures Act's (“APA”), 5 U.S.C. § 553(b), requirement for notice and comment rulemaking (id. at 14-15); and (4) the Agency Memo violates the APA, 5 U.S.C. § 706(2)(A), because it is arbitrary and capricious (id at 14-18).

         JFS Plaintiffs assert that they are entitled to a preliminary injunction because they are likely to succeed on four claims: (1) the Agency Memo's SOA provisions violate the Establishment Clause (JFS PI Mot. at 13-17); (2) the Agency Memo's SAO provisions violate the APA, 5 U.S.C. § 706(2)(A), because they are arbitrary and capricious (id. at 17-18); (3) the Agency Memo violates the APA, 5 U.S.C. § 706(2)(C), because it is ultra vires and contrary to the INA (id. at 19-22); and (4) the Agency Memo violates the APA because the agency failed to engage in required notice and comment rulemaking (id. at 20).[9]

         Defendants oppose both Doe Plaintiffs' and JFS Plaintiffs' substantive arguments that they are likely to prevail on these claims. (Doe Resp. at 12-21; JFS Resp. at 15-28.) In addition, Defendants oppose both motions on a variety of justiciability grounds. (Doe Resp. at 7-12; JFS Resp. at 5-15.) The court addresses Defendants' justicaibility issues first, and then addresses the substance of the Doe and JFS motions for preliminary injunctions. In addressing the substance of Plaintiffs' motions, the court turns to the statutory issues first. See Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”). Because the court ultimately concludes that Plaintiffs show a likelihood of success on the merits of their statutory claims, the court does not reach either JFS Plaintiffs' Establishment Clause claim or Doe Plaintiffs' due process claim. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“[I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.”).

         A. Justiciability

         Defendants challenge the justiciability of both motions for preliminary injunction on four grounds: (1) Plaintiffs lack Article III standing (Doe Resp. at 7-8; JFS Resp. at 5-9); (2) Plaintiffs' claims are barred by principles of nonreviewability (Doe Resp. at 8-11; JFS Resp. at 10-14); (3) Plaintiffs fail to identify any final agency action (Doe Resp. at 11-12; JFS Resp. at 14-15), and (4) Plaintiffs' claims concerning the SAO provisions are unreviewable under 5 U.S.C. § 701(a) (JFS Resp. at 15). In addition to these issues, the court also addresses statutory standing because both Doe Plaintiffs and JFS Plaintiffs raise statutory claims.[10]

         1. Article III Standing

         To satisfy Article III standing, “a plaintiff must show (1) [he or she] has suffered an ‘injury in fact'[;] . . . (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (internal citation omitted). At this preliminary stage of the litigation, Plaintiffs may rely on the allegations in their complaint and whatever other evidence they submit in support of their preliminary injunction motions to meet their burden. Hawaii I, 859 F.3d at 762; Washington, 847 F.3d at 1159. Defendants challenge the standing of both the individual and organizational Plaintiffs. (JFS Resp. at 6-7; Doe Resp. at 7.)

         a. Individual Plaintiffs

          Plaintiffs allege in their complaints that the SAO and FTJ provisions of the Agency Memo extend the separation of citizens and lawful residents in the United States from their family members abroad. (See generally Doe TAC; JFS Compl.) Plaintiffs provide numerous declarations supporting those allegations, which the court has detailed above. See supra § II.B.1-7. Prolonged separation from a family member is an injury in fact sufficient to establish Article III standing.[11] See Hawaii I, 859 F.3d at 763 (holding that a citizen had Article III standing to challenge EO-2 because EO-2 prolonged the separation of the citizen and his family from reunification with his mother-in-law by stalling her visa application); see also Ching v. Mayorkas, 725 F.3d 1149, 1157 (9th Cir. 2013) (“The right to live with and not be separated from one's immediate family is ‘a right that ranks high among the interests of the individual.'”) (quoting Landon v. Plascenia, 459 U.S. 21, 34-35 (1982)); Leiva-Perez v. Holder, 640 F.3d 962, 969-70 (9th Cir. 2011) (recognizing that “important [irreparable harm] factors include separation from family members” (internal quotation marks omitted)); Legal Assistance for Vietnamese Asylum Seekers v. Dep't of State, 45 F.3d 469, 471-73 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996) (holding that U.S. resident sponsors had standing to challenge DOS's refusal to process visa applications because the prolonged separation of immediate family members resulted in injury to the sponsors); IRAP, 137 S.Ct. at 2089 (“An American individual . . . that has a bone fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded.”); Int'l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *12 (D. Md. Oct. 17, 2017) (citizens and lawful permanent residents established “injury in fact” for purposes of Article III standing because EO-3's “indefinite ban on the issuance of immigrant and nonimmigrant visas for // nationals of the Designated Countries has imposed an actual, imminent injury on [the plaintiffs] by prolonging their separation from family members.”).

         Nevertheless, Defendants argue that none of the individual Plaintiffs have demonstrated that suspension of FTJ refugee processing has caused them harm. First, Defendants argue that Joseph fails to show any injury because his wife and children are from Kenya, and Kenya is one of two countries in which the Government is continuing to process FTJ refugee applications because screening procedures are already in place to ensure appropriate FTJ scrutiny. (Doe Resp. at 2, 6-7; Higgins Decl. ¶ 11 (explaining that in Kenya and Thailand “the security vetting received for a Form I-730 beneficiary is the same as the screening received for principal refugee applicants, ” and therefore the Government is continuing to issue travel authorization to approve FTJ refugees who are processed in those locations).) However, as noted above, two of Joseph's children are considered Somali citizens and are, therefore, subject to the Agency Memo's SAO provisions. (See Joseph Supp. Decl. ¶ 9.) Accordingly, the processing of their FTJ refugee applications remain on hold. (See Id. ¶ 10.)

         Defendants also argue that Mr. Hussein's family is in Kenya, and thus he has no standing to challenge the FTJ provisions of the Agency Memo. (JFS Resp. at 6 (citing Higgins Decl. ¶ 11).) However, Mr. Hussein's family members are also Somali nationals, and therefore subject to the SAO provisions. (See Hussein Decl. ΒΆΒΆ 10-11.) Because both Joseph's and Mr. Hussein's FTJ refugee applications for their family members are subject to the Agency Memo's SAO provisions, Joseph and Mr. Hussein have standing to challenge the ...


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