May 26, 2017

International Refugee Assistance Project ("IRAP") v. Trump

    1:21 PM   No comments

RICHMOND, Va. — In a 10-3 ruling, a federal appeals court today ruled President Trump’s revised Muslim ban executive order is unconstitutional (first EO was signed Jan. 27). The full Fourth Circuit Court of Appeals heard the case earlier this month.

The American Civil Liberties Union, ACLU of Maryland, and National Immigration Law Center brought the challenge on behalf of HIAS, the International Refugee Assistance Project, the Middle East Studies Association, and individuals affected by the ban.

Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project who argued the case, had this reaction:

“President Trump’s Muslim ban violates the Constitution, as this decision strongly reaffirms. The Constitution’s prohibition on actions disfavoring or condemning any religion is a fundamental protection for all of us, and we can all be glad that the court today rejected the government’s request to set that principle aside.”

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Case Name
International Refugee Assistance Project ("IRAP") v. Trump     IM-MD-0004
Docket / Court     8:17-cv-00361-TDC ( D. Md. )    
State/Territory     Maryland    
Case Type(s)     Immigration
Presidential Authority
Special Collection     Civil Rights Challenges to Trump Refugee/Visa Order

Attorney Organization     ACLU Chapters (any)
ACLU National (all projects)

Case Summary    On February 7, 2017, several individual U.S. immigrants, the International Refugee Project (IRAP), and HIAS, a refugee resettlement and advocacy organization, filed this class action suit on behalf of all their clients. Represented by the ACLU and the National Immigration Law Center, plaintiffs brought the suit in the U.S. District Court for the District of Maryland. The complaint challenged, in its entirety, President Trump’s January 27, 2017 Executive Order limiting admission to the U.S. for nationals of seven majority-Muslim countries and suspending the U.S. refugee program. IRAP is an organization that provides free legal services to refugees seeking to resettle in the United States. The complaint states that the overwhelming majority of IRAP’s plaintiffs are Muslim. HIAS is a refugee resettlement agency that provides programs and legal services to refugees who have recently resettled in the United States. Many of its clients are from the seven countries listed on the executive order. The case was assigned to Judge Theodore D. Chuang.

The complaint argued that Executive Order was intended and designed to discriminate against Muslims and “does just that in operation.” The complaint focused on the disproportionate impact the executive order had on Muslims and argued that the order’s chaotic and irregular policy changes indicate that it intended to discriminate against Muslims. Plaintiffs alleged that the Executive Order violated the First Amendment Establishment Clause, Fifth Amendment equal protection rights, the Immigration and Nationality Act, the Religious Freedom Restoration Act, the Refugee Act, and the Administrative Procedure Act.

Plaintiffs sought class certification on behalf of all persons “in the United States for whom the Executive Order either interferes with family reunification or the ability to travel internationally and return to the United States.”

The complaint sought a preliminary and permanent injunction enjoining defendants from implementing the executive order. Additionally, the complaint sought a declaration from the court that the entire executive order is unlawful.

On Feb. 22, the plaintiffs filed a motion for expedited discovery and a motion for a preliminary injunction. The preliminary injunction motion sought to "enjoin Defendants from enforcing § 5(d) of President Trump’s January 27, 2017 Executive Order...[which] reduces the annual number of refugees who may be admitted to the United States this year by more than half." The motion argued that "[i]f § 5(d) is not enjoined, no additional refugees can be approved and admitted for resettlement this fiscal year. Thousands of those already approved will not be allowed to resettle in the United States."

In early March, several organizations filed amicus briefs in support of plaintiffs, including the Harvard Immigration and Refugee Clinical Program, the Anti-Defamation League, the American Jewish World Service on behalf of over fifty faith organizations. Those briefs are available below.

Prompted by adverse developments in the Ninth Circuit in another case challenging the Executive Order, in Washington v. Trump, on Mar. 6, 2017, the President rescinded the Jan. 27 Executive Order and replaced it with a narrower one, Executive Order 13780. That day, the government filed notice in this case of the new Executive Order.

After the new Executive Order was signed, defendants conferred with plaintiffs to discuss whether they planned to rescind their motion for preliminary injunction. Plaintiffs declined to rescind the motion because the new EO still substantially reduced refugee admission. Instead, on Mar. 10, plaintiffs filed an amended complaint. The complaint argued that "the March 6 Order was motivated by the same anti-Muslim purpose that motivated the January 27 Order, and continued to seek to prevent the entry of Muslims into the United States. The amended complaint sought declaratory and injunctive relief on the basis that the new executive order violates the Establishment Clause, Fifth Amendment equal protection and due process rights; the Religious Freedom Restoration Act, the anti-discrimination provisions of the Immigration and Nationality Act, the Refugee Act of 1980 as amended, and the Administrative Procedure Act. Concurrently, plaintiffs filed a motion for a temporary restraining order and/or preliminary injunction and a supplemental motion to expedite discovery "so that the Court may have the benefit of additional evidence bearing on the central question of the March 6 Order’s discriminatory intent."

On Mar. 11, plaintiffs filed an amended motion for a temporary restraining order. The defendants responded two days later, arguing that the no emergency existed. The defendants also filed a brief in opposition to the plaintiff's motion for expedited discovery. On Mar. 13, plaintiffs filed a response in support of the temporary restraining order motion. Plaintiffs argued that they had standing because the revised executive order directly harms plaintiffs as organizations that serve refugees. The executive order, plaintiffs argued, had forced HIAS and IRAP to divert substantial resources away from their core missions of providing free legal services to refugees as well as scale back the number of new clients they can take on. Additionally, plaintiffs argued that they met the requirements for asserting third-party legal standing on behalf of the thousands of refugee clients they are currently serving.

Additionally, on Mar. 13 a group of former national security, foreign policy and intelligence officials filed an amicus brief in support of plaintiffs. The authors of the brief argued that the executive order serves no national or security purpose and that it will do long-term damage to national security and foreign policy interests.

On March 16, the morning after a hearing, Judge Chuang granted a nationwide preliminary injunction against the travel ban portion of the second Executive Order.

In response, the defendants appealed to the U.S. Court of Appeals for the Fourth Circuit. Immediately, defendants moved for an expedited hearing, citing national security concerns and noting that several other courts adjudicating challenges to the executive order have expedited review. The court agreed to an expedited schedule. Defendants then also filed a motion for a stay pending the appeal. The court then asked both parties to submit their positions on initial en banc review--that is, whether the case should be heard by the full set of Fourth Circuit judges, not just the ordinary panel of three. Defendants quickly responded in support. Plaintiffs followed suit, finding that "although the government views the issues in this case through a different lens," en banc review was appropriate in light of the case's importance.

The other issue on appeal was a stay of the preliminary injunction, while the appeal proceeded. On Mar. 31, plaintiffs filed their opposition to the government's motion for a stay; defendants replied on Apr. 5. On Apr. 14, the plaintiffs filed their response to the defendants' opening merits appellate brief, arguing that the government improperly "urges this Court to look away...[and] blind themselves to the ample, public, and uncontested evidence of improper purpose—even in the President’s post-election statements—and instead accept, without question, whatever the government said its purpose was in the revised Order." Defendants filed their reply brief on Apr. 22.

(Three days after the defendants filed their reply brief, a plaintiff from Sarsour v. Trump moved to intervene in the appeal. Defendants opposed that motion in a brief submitted on Aprl. 27 on the grounds that the motion is untimely and seeks to introduce a new issue.)

Meanwhile, back in the district court, several procedural updates occurred. Judge Chuang held a telephone status conference on Mar. 21. On that day, plaintiffs also filed notice of intent to file a new motion for a preliminary injunction as to the new EO's provision regarding the U.S. Refugee Admissions Program. Plaintiffs' brief was filed Mar. 24 and Defendants' on Mar. 31. On Apr. 5, plaintiffs filed a response to defendant's brief. On Mar. 22, plaintiffs filed a notice withdrawing their motion for expedited discovery. The court then denied without prejudice the various pending motions for further relief, in light of the pending appeal and the nationwide injunction resulting from Hawai'i v. Trump.

Back in the appeals court, oral arguments took place on May 8, with the court sitting en banc. On May 11, the court granted plaintiffs' unopposed motion to supplement the record to support one of the plaintiff's standing argument (John Doe #3).

In the appeals court, a series of amici filed briefs, including: On Mar. 31, the following entities filed briefs in support of the plaintiffs: a U.S. resident of Yemeni descent, numerous higher education institutions, numerous states, numerous cities, former national security officials, Americans United for Separation of Church and State, Bend the Arc, Southern Poverty Law Center, and the American-Arab Anti-Discrimination Committee. The same day, the following entities filed briefs in support of the defendants: U.S. Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, Policy Analysis Center, Immigration Reform Law Institute, American Civil Rights Union, Southeastern Legal Foundation, and the American Center for Law and Justice. On Apr. 4, New York University filed an amicus brief in support of the plaintiffs. On Apr. 13, the MacArthur Justice Center filed a brief in support of the plaintiffs. On Apr. 17, international law scholars and nongovernmental organizations filed a brief in support of the plaintiffs. Numerous briefs were filed on Apr. 19 in support of the plaintiffs from:
•    Medical Institutions, Advocacy Organizations, and Individual Physicians
•    Tahirih Justice Center, The Asian Pacific Institute on Gender-Based Violence, Casa de Esperanza, and National Domestic Violence Hotline
•    Interfaith Group of Religious and Interreligious Organizations
•    Oxfam America, Inc.
•    Americans United for Separation of Church and State, Bend the Arc and Southern Poverty Law Center
•    Constitutional Law Professors
•    The American Jewish Committee
•    Immigration Law Scholars and Clinicians
•    Cato Institute; Muslim Advocates, American Muslim Health Professionals, Muppies, Inc., National Arab American Medical Association, Network of Arab American Professionals
•    The American Alliance of Museums, The College Art Association, and 94 Art Museums
•    American Professional Society on the Abuse of Children
•    Advocate for Human Rights, Asian Law Alliance, Asian Pacific American Network of Oregon, CASA, Community Refugee & Immigration Services, Immigrant Law Center of Minnesota, Immigrant Rights Clinic of Washington Square Legal Services, Inc., Integrated Refugee and Immigrant Services, The Southeast Asia Resource Action Center
•    Airport Attorneys Coalition
•    The American-Arab Anti-Discrimination Committee
•    and Massachusetts Technology Leadership Council.
On May 25, 2017, the en banc court affirmed the preliminary injunction in its entirety, except that it held that President Trump was not personally enjoined. (The court noted, however, that Presidential action remained unreviewable, in suits against the officers assigned to enforce the President’s directives. "Even though the President is not 'directly bound' by the injunction, we 'assume it is substantially likely that the President . . . would abide by an authoritative interpretation” of Section 2(c) of the Second Executive Order.")

Jamie Kessler - 05/12/2017
Virginia Weeks - 05/10/2017
Ava Morgenstern - 02/15/2017
- 05/25/2017
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