On Oct. 17, 2017, Judge Theodore D. Chuang of the U.S. District Court for the District of Maryland issued an opinion and an order enjoining the implementation of President Trump’s latest travel ban. This round of litigation concerns Presidential Proclamation 9645, issued on Sept. 24, 2017, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.” The proclamation is the third iteration of an executive order that President Trump first issued in January 2017, more commonly known as the travel ban.

In the instant case, Int’l Refugee Assistance Project v. Trump (“IRAP”) plaintiffs seek injunctive and declaratory relief; plaintiffs moved for a preliminary injunction on Oct. 6, 2017. IRAP, previously before the Supreme Court, was vacated and remanded for dismissal after the temporary entry ban in the second immigration executive order expired and was replaced with the third proclamation (EO-3 or the Proclamation). Judge Chuang indicated that all questions of law would be decided “anew” because the Supreme Court vacated the case without reaching the merits.

Justiciability

Standing

The court first takes up the government’s arguments that the plaintiffs fail to satisfy Article III’s standing requirements. As the court explains, this means at least one plaintiff must allege “(1) a ‘concrete and particularized’ injury that is ‘actual or imminent,’ (2) ‘fairly traceable to the challenged conduct,’ (3) and ‘likely to be redressed by a favorable judicial decision.’” Judge Chuang found all three to be satisfied for both the individual plaintiffs and the organizational plaintiffs.

In addition to the above-mentioned constitutional standing requirements, statutory standing requires that a plaintiff’s interest “fall within the ‘zone of interests protected by the law invoked.’” The Immigration and Nationality Act (INA) is the law invoked here.

Individuals: With respect to injury, the court concluded that “[t]he Proclamation’s indefinite ban on the issuance of immigrant and nonimmigrant visas for nationals of the Designated Countries has imposed an actual, imminent injury on these Plaintiffs by prolonging their separation from their family members.” According to the court, even the threat of such an injury that is “real and immediate”--which the court concluded is the case here--constitutes a sufficient injury. The court also pointed out that the D.C. Circuit had found standing where, like here, a plaintiff alleged a violation of 8 U.S.C. § 1152 in the form of failure to process a visa application. The court then quickly concluded that the injuries were traceable to the Proclamation and likely to be redressed by an injunction.

Organizations: Citing the Supreme Court’s opinion in Havens Realty Corp. v. Coleman and the Fourth Circuit’s opinion in Lane v. Holder, Judge Chuang concluded that the organizational plaintiffs alleged a sufficient injury to their “proprietary and organizational interests.” For example, the court found an injury-in-fact in claims that the Proclamation would “disrupt upcoming conferences and events . . . by preventing individuals from the Designated Countries from attending.” Thus, the Proclamation would “disrupt[] their ability to raise money, train staff, and convene programs designed to foster the free flow of ideas on topics of significance to their organization’s purpose.” Moreover, the court found the plaintiffs to be within the requisite “zone of interest protected by the [Immigration and Nationality Act].” According to the court, organizations which “engage in collaboration and exchange with foreign nationals who visit the United States” or “focus[] on refugee resettlement” have an “interest in the effective operation of the INA.” The court then quickly concluded that the injuries were traceable to the Proclamation and likely to be redressed by an injunction. It also found that two of the organizational plaintiffs could assert standing on behalf of their members; each had identified a specific individual who would suffer harm which was germane to the organization’s purposes as a result of the Proclamation.

Establishment Clause

Individuals: As the court explains, a cognizable establishment clause injury requires a plaintiff to have “‘personal contact with the alleged establishment of religion’ resulting in a personal injury.” Relevant injuries include “noneconomic, intangible harm to spiritual beliefs, such as ‘[f]eelings of marginalization and exclusion.’” The court then recounts a litany of allegations that the Proclamation caused plaintiffs to feel “insulted,” “demeaned,” “depressed” or “insecure.” One plaintiff explained feeling “attacked, targeted, and disparaged by the Proclamation’s hostility to Muslims and . . . [felt] fear for their safety as a result.” The court concluded that “[t]hese feelings of marginalization constitute an injury in fact in an establishment clause case.” The court then quickly concluded that the injuries were traceable to the Proclamation and likely to be redressed by an injunction “by removing the stigma associated with the Proclamation.”

Organizations: The court found that two of the organizational plaintiffs had standing to assert claims on behalf of their members who had personal contact with and suffered direct injury from “the alleged establishment of religion” and had suffered a concrete injury as a result of the proclamation.

Ripeness

The court rejected the government’s arguments “that the Plaintiffs’ claims are not ripe because their relatives have not yet been denied both a visa and a waiver.” Although the court acknowledged that “a claim is generally not ripe if it is based on contingent future events,” here it found that visa ineligibility alone was sufficient “because the waiver process itself presents an additional hurdle not faced by other visa applicants which would delay reunification.” Additionally, the court observed that the Proclamation has already “been issued in its final form, and is not dependent on facts that may derive from application of the waiver process.”

Consular Nonreviewability

The court rejected the government’s claim that “any judicial review of the President’s decision to exclude an alien for any reason is unreviewable.” Though Judge Chuang does not rely on the opinion, the Fourth Circuit rejected this argument in the earlier round of litigation which upheld an injunction Judge Chuang had issued in the previous IRAP litigation (which Jordan and Amira discussed here). The court, citing a number of other opinions, seemed to find this inapposite here:

Plaintiffs . . . challenge not individual visa decisions by consular officers, but the overarching travel ban policy imposed by the Proclamation. . . . The Defendants’ reliance on Knauff and Saavedra Bruno is thus misplaced. These decisions relate only to aliens appealing individual denials of entry into the United States. . . . Where Plaintiffs include U.S. citizens asserting statutory and constitutional claims challenging a broader policy as opposed to individual consular determinations, the doctrine of consular nonreviewability is not applicable.

This echos the Fourth Circuit's conclusion that “the doctrine of consular nonreviewability does not bar judicial review of constitutional claims.” Indeed, Judge Chuang here cites to the Fourth Circuit’s vacated opinion, presumably for its persuasive power (which Judge Chuang indicated the parties consented to in footnote 1 of the opinion).

APA

The court rejected a number of Administrative Procedure Act-related (APA) justiciability claims. Holding that the defendants fulfilled the statutory standing requirements imposed by the APA, the court turned to the government’s Franklin v. Massachusetts argument. In that case, the Supreme Court held that the president’s actions are not reviewable under the APA. Thus, according to the government, “judicial review is not available because the Proclamation was issued by the President, not the head of a federal department or agency, and thus is not a ‘final agency action’ within the meaning of the APA.” Judge Chuang disagreed: “To the extent that the Plaintiffs seek an injunction against the President himself, this argument has merit. . . . However, Plaintiffs have named as defendants federal agency officials who will implement the Proclamation.” Judge Chuang also cited Chamber of Commerce v. Reich where the D.C. Circuit concluded that “[r]eview of the legality of a Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President’s directive.” The court also rejected the government’s argument that, per 5 U.S.C. § 702(a)(2), “Congress committed the use of § 1152(f) to the sole discretion of the President, such that a reviewing court has no manageable standard by which to evaluate it.” Rather, “courts have regularly reviewed Presidential action, including action taken in the context of foreign policy and immigration, to ensure that it fits within the bounds of federal statutes.”

Legal Standard for Preliminary Injunction

Upon finding that the case is justiciable, the court considers in turn whether each of the requirements for a preliminary injunction is met: likelihood of success on the merits; likelihood of irreparable harm in the absence of preliminary relief; whether the balance of equities tips in favor of the plaintiffs; and whether an injunction is in the public interest.

Statutory Claims’ Likelihood of Success on the Merits

Judge Chuang begins with the plaintiffs’ three statutory claims under the INA.

Discrimination Based on Nationality Claim

First, plaintiffs argue that EO-3 violates § 1152(a) of the INA, which prohibits discrimination based on nationality in the issuance of immigrant visas. In response, the government contends that the president’s power to issue proclamations--such as EO-3--under § 1182(f) of the Act is not subject to § 1152(a)’s limitations. Judge Chuang is persuaded of the plaintiffs’ position after applying traditional canons of statutory construction. The court notes that § 1152(a) was more recently enacted than § 1182(f), that § 1152(a) is more specific than § 1182(f), and that § 1152(a) specifically excludes certain sections of the INA from its scope, of which § 1182(f) is not one. Finding § 1182(f) subject to § 1152(a)’s restrictions, Judge Chuang points out that this conclusion is consistent with the Ninth Circuit’s opinion in Hawaii v. Trump (related to EO-2).

The court also rejects the government’s assertion that even if the president’s authority under § 1182(f) is not excluded from § 1152(a)’s scope, in practice, there is no conflict between the two because § 1182(f) empowers the president to bar entry of certain aliens while § 1152(a) specifically prohibits discrimination only in the issuance of immigrant visas. For Judge Chuang, this is one tick too clever (the government’s claim here is not helped by the fact that the State Department publicly describes EO-3 as the “Presidential Proclamation on Visas.”). The court notes that obtaining a visa and seeking entry are activities that “usually go hand-in-hand,” and that a “visa is meaningless without later receiving permission to enter.” The court refuses to adopt such a construction that would allow the president to “flout § 1152(a) so easily” by first issuing visas to nationals of certain countries then denying those same nationals entry. Nor does EO-3’s permanent, nationality-based bar to entry fall into a discrete set of historical examples; it does not resemble the Iranian hostage crisis and the disruption of migration relations between the U.S. and Cuba in 1986, where entry, but not visas, was denied on the basis of nationality until the crises had passed. The court concludes that in substance and design, EO-3 is a permanent ban on the issuance of immigrant visas to nationals of the designated countries and therefore violates § 1152(a). But because § 1152(a) only covers immigrant visas, the court must consider the plaintiffs’ remaining statutory claims to determine their likelihood of success on the merits with respect to EO-3-covered nonimmigrants seeking entry into the United States.

Inadequate Finding of Detriment Claim

Next, the plaintiffs assert that the president has not triggered his authority to act because he has failed to make the threshold finding that the entry of EO-3-designated aliens “would be detrimental to the interests of the United States,” as required by § 1182(f). The plaintiffs argue that the nationality-based restrictions are unnecessary, an argument supported by “dozens of former national security officials,” that EO-3 is both over- and underinclusive, and that the information-sharing failures of designated-country governments is irrelevant in a system that relies on applicants, not their governments, to furnish the information necessary for an immigrant or nonimmigrant visa. Judge Chuang recognizes these criticisms but finds no requirement that § 1182(f) entry restrictions be “narrowly tailored.” Furthermore, the court reads the “detrimental to interests” language as creating quite a broad standard, even more so than that invoking “national security.” The court concludes that the plaintiffs have failed to show their likelihood of success on the merits for this claim.

Insufficient Statutory Authority Claim

Finally, the plaintiffs assert that the president exceeded his authority pursuant to § 1182(f) by issuing a ban that overrides Congress’s policy choices enshrined in the INA, specifically related to visa issuance criteria and the Visa Waiver Program. They argue that,in order for nationals of designated countries under EO-3 to obtain a visa, they must seek a waiver by demonstrating that visa denial would cause “undue hardship,” that entry would “not pose a threat,” and would be in the “national interest.” These additional criteria go above and beyond those that Congress prescribed in its statutory scheme, which requires applicants to show that they do not fall into an ineligible category such as those with links to terrorism. As for the Visa Waiver Program, Congress has already made policy choices regarding nations covered by EO-3, rendering dual citizens of Iran and Syria ineligible for the program, and considered the factors used by EO-3 to come up with its list of banned countries. For example, country-use of “machine-readable passport[s] containing biographic and biometric data.” Therefore, EO-3 conflicts with Congress’s policy judgments on the same issues.

The court begins by dispensing with the government’s claim that presidential action taken pursuant to § 1182(f) is committed to his discretion and not subject to judicial review. This argument fails as the Supreme Court reached the merits of a challenge to the president’s use of § 1182(f) in a previous case, Sale v. Haitian Ctrs. Council. Turning to the claims, Judge Chuang notes that the plaintiffs’ theory is unpersuasive for two reasons. First, § 1182(f) specifically authorizes the president to “impose on the entry of aliens any restrictions he may deem to be appropriate,” allowing precisely the kinds of additional criteria presented in EO-3. Second, while EO-3 and the Visa Waiver Program address “similar problems” they are not directed at the same countries or classes of aliens. Thus EO-3 did not “legislate[] changes to the INA in contravention of Congressional intent.”

Lastly, the plaintiffs allege that the sheer magnitude of EO-3, banning upwards of 150 million nationals from entry, must exceed Congress’s intended delegation of power to the president. The court recognizes that EO-3 does not comport with historical examples in which the president used § 1182(f) to ban entry based on nationality (responding to the Iranian hostage crisis and the Cuban government’s decision to cancel a migration agreement in 1986). And if ever there were a § 1182(f) order, “past or present, that exceeds the authority of that statute, it would be this one.” But the court could find no “clear limit” on the president’s § 1182(f) authority other than § 1152(a). The president has “sweeping proclamation power” that Judge Chuang believes must have some upper limit, but whatever that limit is, it has not been crossed here with respect to nonimmigrant visas.

Finding that the plaintiffs have failed to show their likelihood of success with respect to EO-3 covered nonimmigrants seeking entry on purely statutory grounds, the court determines that it must consider the plaintiffs’ constitutional claims.

Constitutional Claims’ Likelihood of Success on the Merits

Because the statutory claims could not completely support the plaintiff’s requested relief, Judge Chuang moved on to the Constitutional analysis. The court first evaluated EO-3 under the standard set forth for evaluating visa denial motives in Kleindienst v. Mandel. Under Mandel, courts review a claim that a visa denial violated constitutional rights first only to determine whether there was a “facially legitimate and bona fide” reason for the denial. If there is, the denial is lawful. But, if the stated reason is not valid or if there is a “particularized showing of bad faith,” the court will “look behind” the stated reason to determine if the true purpose is constitutional.

As employed here, the analysis was largely an extension of the same one the court performed in March when reviewing President Trump’s revised travel ban. There, Judge Chuang said that the government’s rationale provided was not “bona fide” and was instead likely a bad-faith pretext for the president’s true motivation of anti-Muslim bias. The court concluded this by relying on several public statements the president had made about Muslims, including his initial call for a ban on Muslims entering the country. Judge Chuang reasoned that bad faith could still plausibly be found since EO-3 comes out of this history of bad faith.

Given that the stated motivation appeared to not be “bona fide,” the court looked to determine if the purpose violated the establishment clause. To judge a facially neutral statute against an establishment clause challenge, Judge Chuang used the test set out in Lemon v. Kurtzman:an act will only withstand the challenge if (1) it has a primarily secular purpose, (2) “its principal or primary effect must be one that neither advances nor inhibits religion,” and (3) it must not “foster ‘an excessive government entanglement with religion.’” Here, Judge Chuang again leaned on his analysis of the second executive order. In March, Judge Chuang ruled that the first and second executive orders would likely fail the first prong of the Lemon test because of President Trump’s many public statements suggesting anti-Muslim motivations. Because Judge Chuang viewed EO-3 “in [the] shadow” of EO-1 and EO-2, the government had “not only to persuasively present a primary nonreligious effect, but also to disassociate the [government action] from its previous religious effect.”

The primary indicators the government could use to suggest EO-3 had a secular purpose was its inclusion of North Korea and Venezuela and the review process undertaken by DHS to produce the new policy. Judge Chuang was not moved, writing that the Venezuela and North Korea restrictions had “little practical consequence,” because the Venezuela restrictions only affect government officials and the North Korea restrictions affect fewer than 100 people. The DHS review was also insufficient, as Judge Chuang suspected the administration did not perform its review in earnest. He pointed to statements from the president predicting the review would result in a “very, very strict ban,” suggesting the review had a preordained result. Judge Chuang saw a similar indication from the fact that the second executive order that initiated the review instructed the Secretary of Homeland Security to “submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals.” This wording did not allow the Secretary of Homeland Security to recommend that no nationality-based ban was necessary at all.

On top of the insufficiency of these textual indicators, Judge Chuang noted that the President’s public statements undercut his legal team’s argument, just as they did in March. Judge Chuang pointed out that not only had the president not repudiated his previous anti-Muslim statements, he had made other new statements since the second executive order that suggest he maintains the same motivations as ever for his travel ban. For example, in August, President Trump “tweeted a statement that a method hostile to Islam—shooting Muslims with bullets dipped in pig’s blood—should be used to deter future terrorism.” At a campaign rally after the second Executive Order was enjoined, the president called it a “‘watered down version of the first one’ that had been ‘tailor[ed]’ by lawyers to respond to legal challenges.” In light of the process that produced EO-3 and the President’s public statements around it, Judge Chuang could not “find that a ‘reasonable observer’ would understand that the primary purpose of the Proclamation’s travel ban is no longer the desire to impose a Muslim ban.”

Analysis of Other Factors for an Injunction

The court next turned to whether or not the plaintiffs would suffer irreparable harm from EO-3 should it go into effect. The Supreme Court held in Elrod v. Burns that “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” The Fourth Circuit had not extended that to establishment clause claims, but several other districts had. Judge Chuang was persuaded enough by this argument to find that the plaintiffs were likely to suffer irreparable harm. The court also found a likelihood of irreparable harm for the plaintiffs with family members seeking immigrant visas, because “[t]he absence of a family member cannot be cured through a later payment of money damages, and is therefore irreparable.”

In balancing the equities, Judge Chuang compared the harm of separation from one’s family to the national security harms created by not enforcing EO-3. These tipped in the plaintiff’s favor, particularly because “[a]n injunction would not grant entry to any individual foreign national, but would only preclude the use of a blanket ban. Even with an injunction, visa applicants from the Designated Countries would be screened through the standard, individualized vetting process under which the burden is on individual applicants to prove that they are not inadmissible to the United States.” The court did note however that the balance would tip in the government’s favor in the case of individuals who lacked a connection with people or entities in the United States – so this factor would only support an injunction extending to people with such connections.

Judge Chuang also found that the public interest would be served by preventing an establishment clause violation and by guarding Congress’ wishes in the implementation of the INA. While the public also has a national security interest, Judge Chuang was not persuaded that it would be harmed sufficiently to outweigh these concerns.

Because an establishment clause violation has effects beyond the parties in the case, and because the organizational plaintiffs in the case operate across the country, Judge Chuang issued a nationwide injunction. However, because the balance of the equities on the restrictions on travel from Venezuela and North Korea favored the government, the injunction does not apply to nationals from those countries.

For more information on the travel ban litigation, and a direct look at the litigation documents, take a look at Lawfare’s roundup here.