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Does v. Trump

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

July 27, 2018

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




         Before the court are two motions: (1) Consolidated Plaintiffs Jewish Family Services of Seattle, Jewish Family Services of Silicon Valley, Allen Vaught, Afkab Mohamed Hussein, John Does 1-3 and 7, and Jane Does 4-6's (collectively, “JFS Plaintiffs”) motion to reinstate their request for limited discovery[1] (2d MFD (Dkt. # 131));[2] and (2) Defendants President Donald Trump, United States Department of State (“DOS”), Secretary of State Mike Pompeo, United States Department of Homeland Security (“DHS”), DHS Secretary Kirstjen M. Nielsen, United States Customs and Border Protection (“USCBP”), Commissioner of USCBP Kevin McAleenan, Field Director of the Seattle Field Office of USCBP Michele James, Office of the Director of National Intelligence, Director of National Intelligence (“DNI”) Daniel Coats's (collectively, “Defendants”) motion to dismiss and dissolve the preliminary injunction as moot (MTD (Dkt. # 145)).[3] Plaintiffs John Doe, Episcopal Diocese of Olympia, Joseph Doe, James Doe, Council on American Islamic Relations - Washington, Jack Doe, Jason Doe, and Jeffrey Doe (collectively, “Doe Plaintiffs”) join JFS Plaintiffs' motion. (See 5/7/18 Order (Dkt. # 141) (granting Doe Plaintiffs' motion for joinder).) The court has considered the motions, all submissions filed in support of and in opposition to both // motions, the relevant portions of the record, and the applicable law. Being fully advised, [4]the court GRANTS JFS Plaintiffs and Doe Plaintiffs' (collectively, “Plaintiffs”) motion for limited discovery as more fully described herein and DENIES Defendants' motion to dismiss and dissolve the preliminary injunction as moot without prejudice to refiling, if appropriate, following the conclusion of limited jurisdictional discovery.


         A. The President's First Three Executive Orders

         On January 27, 2017, President Trump signed Executive Order 13769 (“EO1”), which suspended for 90 days entry into the United States for nationals of seven Muslim-majority countries; suspended the U.S. Refugee Admissions Program (“USRAP”) for 120 days; and indefinitely barred Syrian refugees from entering the United States.[5] Following a nationwide preliminary injunction against EO1, see, e.g., Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), the President rescinded EO1 and replaced it with Executive Order 13780 (“EO2”).[6] EO2 suspended for another 90 days the entry of nationals from six Muslim-majority countries and suspended all refugee admissions for 120 days. See EO2 §§ 2(c), 6(a). The Ninth Circuit enjoined EO2 before it took effect. See Hawaii v. Trump, 859 F.3d 741, 757, 760 (9th Cir. 2017) (per curiam), vacated as moot, __ U.S. __, 137 S.Ct. 377 (2017). However, the Supreme Court allowed Defendants to suspend the entry into the country of immigrants from the six Muslim-majority countries and to suspend USRAP, but only for immigrants and refugees without a “bone fide relationship” to a person or entity in the United States. See Trump v. IRAP, __ U.S. __, 137 S.Ct. 2080, 2087-89 (2017).

         When EO2's 90-day ban on immigrants from six Muslim-majority countries expired, President Trump issued a Proclamation (“EO3”) that, among other things, indefinitely banned immigrants from seven countries-six of which are Muslim-majority countries.[7] On June 26, 2018, the Supreme Court held that President Trump permissibly exercised his “broad discretion” under 8 U.S.C. 1182(f) of the Immigration and Nationality Act (“INA”) in issuing EO3. See Trump v. Hawaii, __ U.S. __, 138 S.Ct. 2392, 2407-10 (2018).

         B. The Fourth Executive Order & the Agency Memo

         In the meantime, on October 24, 2017, EO2's 120-day suspension of refugee admissions expired. (See PI Order (Dkt. # 92) at 8.) On the same day, President Trump issued Executive Order 13815 (“EO4”), entitled “Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities.”[8] Although EO4's title indicates that refugee admissions have resumed, the accompanying memorandum- known as the “Agency Memo”-imposed another ban on certain categories of refugees. (See Lin Decl. (Dkt. # 46) ¶ 3, Ex. B (attaching a copy of the Agency Memo).)[9] The Agency Memo was dated one day before EO4, but was also released on October 24, 2017. (See id.)

         First, the Agency Memo suspended indefinitely “following-to-join” (“FTJ”) derivative refugees.[10] Every year, approximately 2, 500 refugees in the United States are able to reunite with their immediate family members through the FTJ process. (Agency Memo 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 were in place. (Id. at 3.)

         Second, the Agency Memo suspended 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.” (Id. at 2-3; see also Agency Memo Addendum at 1.) The Agency Memo does not identify the countries designated on the SAO list, but they are believed to be Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria, and Yemen. (See PI Order at 10-11 n.6; 11/16/17 Smith Decl. (17-1707 Dkt. # 44) ¶ 3.) The Agency Memo required DOS and DHS to “conduct a review and analysis” of USRAP for refugees from SAO countries for an additional 90 days-notwithstanding the agencies' previous review of USRAP pursuant to EO1 and EO2. (See id.) In addition, the Agency Memo diverted resources dedicated to processing refugees who are citizens of (or stateless persons who last resided in) SAO countries and reallocated those resources to processing refugee applicants from non-SAO countries. (Id.) Although the review was to last for 90 days, Defendants conceded in oral argument that the Agency Memo does not direct the government to resume processing and admitting SAO refuges after the 90-day review is complete. (See Tr. of 12/21/17 Hr'g (Dkt. # 113) at 38:1-5 (“I mean, perhaps the government will conclude at the end of the 90 days that refugee admissions may resume in March, or perhaps the government will decide that further security measures are needed for certain countries. We just don't know.”).)[11]

         C. The Preliminary Injunction

         JFS Plaintiffs filed suit and Doe Plaintiffs amended their complaint to challenge the Agency Memo's suspension of FTJ and SAO refugee admissions (see TAC (Dkt. # 42); Compl. (17-1707 Dkt. # 1)); and Plaintiffs moved for a preliminary injunction blocking those provisions of the Agency Memo (see Doe PI Mot. (Dkt. # 45); JFS PI Mot. (17-1707 Dkt. # 42)). On November 29, 2017, the court consolidated the two actions. (See 11/29/17 Order.) On December 23, 2017, the court granted both JFS Plaintiffs' and Doe Plaintiffs' motions and enjoined Defendants from enforcing (1) “those provisions of the Agency Memo that suspend the processing of FTJ refugee applications or suspend the admission of FTJ refugees into the United States, ” and (2) “those provisions . . . that suspend or inhibit, including through the diversion of resources, the processing of applications or the admission into the United States of refugees from SAO countries.” (PI Order at 64-65.) The court, however, limited its preliminary injunction to refugees “with a bona fide relationship to a person or entity within the United States.” (Id. at 65.)

         Within a few days, Defendants moved for an “emergency” stay of the injunction pending appeal. (MFS (Dkt. # 95).) In that motion, Defendants narrowly interpreted the court's injunction. (See Id. at 4-6.) Defendants asserted that they were not required to undo any actions taken or decisions made prior to December 23, 2017, to implement the SAO or FTJ suspensions. See Id. On January 9, 2018, the court denied Defendants' motion (1/9/18 Order (Dkt. # 106) at 7-16) and rejected their cramped interpretation of the court's preliminary injunction (id. at 5-7). The court admonished Defendants for attempting “to unilaterally modify the preliminary injunction” and ordered them to “restore the status quo prior to the issuance of the Agency Memo with respect to the processing of applications from FTJ refugees and refugees from SAO countries.” (Id. at 5-6.) On January 4, 2018, Defendants filed a notice of appeal concerning the court's preliminary injunction. (NOA (Dkt. # 99).)

         D. Defendants' Notices of Compliance with the Preliminary Injunction

         On January 19, 2018, Defendants filed a notice of compliance with the court's preliminary injunction. (See 1/19/18 Notice (Dkt. # 114).) The notice described certain steps Defendants had taken in response to the court's orders. (See generally id.) The notice referenced guidance that Defendants had sent to DOS and USCIS personnel in late December 2017 and early January 2018 “directing their personnel to comply with the injunction.” (Id. at 2-3.) However, Defendants have not produced copies of the guidance they sent (see JFS MTD Resp. (Dkt. # 146) at 4), and Defendants sent all of the guidance referenced in their January 19, 2018, notice prior to the court's January 9, 2018, order, in which the court rejected Defendants' narrow interpretation of the preliminary injunction.[12] (See id.; see also 1/9/18 Order at 5-6). Finally, the notice described Defendants' efforts to comply with the preliminary injunction in the scheduling of “circuit rides” through which USCIS officers travel to locations worldwide to interview refugee applicants.[13] (1/19/18 Notice at 3-5.)

         On January 31, 2018, Defendants filed a second notice announcing that they had completed the 90-day SAO refugee review on January 22, 2018, and they expected to finish implementing the additional procedures for FTJ refugees referenced in the Agency Memo on or about February 1, 2018. (See 1/31/18 Notice (Dkt. #119) at 1-2.) In the notice, Defendants stated that they “do not understand the preliminary injunction . . . to prohibit [them] from implementing these enhancements and recommendations.” (Id. at 1.) Defendants also asserted that as a result of these two events-the completion of the SAO refugee review and the near-completion of enhanced procedures for FTJ refugee processing-Plaintiffs' claims concerning the Agency Memo would “soon be moot.” (Id. at 2.)

         E. Secretary Nielsen's Memorandum

         On or about January 29, 2018, DHS Secretary Nielsen issued a memorandum (“the Nielsen Memo”) announcing three “determinations” she had made based on the DHS's SAO review as ordered by the Agency Memo. (See MTD, Ex. 2 (Dkt. # 145-2) (“Nielsen Memo”) at 2-3.) She determined that (1) “[a]dditional screening and vetting” are required for “certain nationals of high-risk countries”; (2) the USRAP “should continue to be administered in a risk-based manner”; and (3) the “SAO list and selection criteria should be reviewed and updated.” (Id.) The Nielsen Memo also stated that “[t]he 90-day review of SAO countries, as provided in the . . . [Agency Memo], is no longer in effect by its terms, and the prioritization set forth in the Memorandum is not hereby renewed.” (Id. at 4.)

         Defendants produced a redacted copy of the Nielsen Memo to Plaintiffs on February 8, 2018. (Keaney Decl. (Dkt. # 122) ¶¶ 3-4, Exs. B-C.) Plaintiffs requested that Defendants reconsider the redaction, and if they refused, to state the basis for the redaction. (Id. ¶ 5, Ex. D.) On February 13, 2018, Defendants refused to reconsider the redaction and asserted that the redaction was based on the law enforcement privilege. (Id. ¶ 6, Ex. E.)

         F. Plaintiffs' Evidence of Non-Compliance with the Preliminary Injunction

         1. Communications from the DOS

         Plaintiffs submit email communications from DOS that they contend contradict Defendants' assertions of compliance with the preliminary injunction. (See Doe MTD Resp. (Dkt. # 147) at 10-11.) First, on January 8, 2018, Congresswoman Pramila Jayapal's Manager for Constituent Services sent an email to PRM on behalf of a constituent to inquire about the refugee petitions of the constituent's mother and six siblings. (5/4/18 Mohamed Decl. (Dkt. # 139) ¶ 3.) On January 12, 2018, the DOS Congressional Liaison responded that the case had been “conditionally approved for refugee resettlement by DHS/USCIS in Nov[ember] 2015, ” but was now “on temporary hold following the issuance of an Executive Order on October 24, 2017[, ] that directed [DOS] and DHS to review the refugee processing procedures for nationals of 11 countries, which includes this case.” (Id. ¶ 4, Ex. A.)

         Second, on April 4, 2018, the same DOS Congressional Liaison[14] wrote to a staff member of Congressman Mark Vessey's office that the refugee about whom the staff member had inquired had been fully approved in September 2017. (5/3/18 Doe 1 Decl. (Dkt. # 132) ¶ 3, Ex. A.)[15] However, the Liaison continued that “USRAP was unable to complete final processing of the case prior to the Oct[ober] 24, 2017[, ] Executive Order directing the temporary suspension of the movement of nationals from eleven countries, including Iraq, until a further review of the procedures for processing these cases was completed.” (Id.) The Liaison also stated that the “suspension ended on Jan[uary] 22, 2018” (id.), which is the same day Defendants state in their January 31, 2018, notice to the court that they completed the 90-day SAO refugee review (see 1/31/18 Notice at 1-2).

         Those DOS communications to two different Congressional offices make no reference to the preliminary injunction or any implementation thereof. (See id.; 5/4/18 Mohamed Decl. ¶ 4, Ex. A.) In response, Defendants submit the declaration of Kelly A.

         Gauger, the Acting Director of the Admissions Office of PRM of DOS. (See 5/14/18 Gauger Decl. (Dkt. # 142-1).) She reiterates that “the requirements of the December 23, 2017, [preliminary] injunction . . . were immediately sent to PRM's implementing partners at the [RSCs] overseas so that the RSCs could resume processing . . . applicants within the scope of the injunction at the start of the next business day.” (Id. ¶ 5.) She also states that the representations in the DOS Congressional Liaison's emails “are incorrect and the result of inadvertent error.” (Id. ¶ 6.) Defendants do not, however, submit a declaration from the DOS Congressional Liaison himself explaining the content of his emails, his sources, or his methods of inquiry. (See generally Dkt.)

         2. Statistical Evidence

         JFS Plaintiffs also submit statistical evidence indicating a precipitous drop in refugee admissions during 2018 despite the court's preliminary injunction and order requiring Defendants to “restore the status quo prior to the issuance of the Agency Memo with respect to the processing of applications from FTJ refugees and refugees from SAO countries.” (See 1/19/18 Order at 5; see generally PI Order.) For example, in the first four months following the preliminary injunction, the admission of refugees from SAO countries remained at a standstill. Although in fiscal years 2016 and 2017 refugees from SAO countries comprised 43.5 percent of the refugee admissions under the USRAP (see 1/29/18 Smith Decl. (Dkt. # 118) ¶ 5), between October 1, 2017, and April 1, 2018, only 4.2 percent of the total refugees admitted under the USRAP were from SAO countries (see 5/3/18 Smith Decl. (Dkt. # 133) ΒΆ 4). Further, between December 23, 2017-the date of the preliminary ...

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